foot of the horse causing a runaway, an in- 219-INSTRUCTIONS - DEFINI Where it is desired to use the words "proximate" or "proximate cause" in an instruction in an action for injuries to property bailed, these terms should be defined. 6. EVIDENCE 506- EXPERT TESTIMONY QUESTIONS OF FACT. In an action for injuries to a horse loaned defendant for his sole benefit, caused by the wagon running upon it, whether the neckyoke and tongue constituted a safe appliance, and whether the absence of a sufficient brake made the wagon dangerous, was for the jury, and not for expert testimony. 7. ANIMALS 27-DAMAGES DUCTION OF Loss. 62(3) — RE In an action for injuries to a horse loaned defendant for his sole benefit, it was proper to allow plaintiff his expenses on account of pasturing the horse, together with medicine and veterinary services; it being his duty to minimize damages as much as possible. unhitched the team; later in the day, when they started to return, he hitched up the team and noticed that the neckyoke ring was too large for the end of the tongue, and that the strap was hanging down from nine to twelve inches. Defendant stated that he did not know what the strap was for. On the return journey, and while going down a hill, the tongue slipped through the ring in the neckyoke, and, there being no brake, the wagon ran upon the horses, whereupon they ran away, throwing plaintiff and his wife and the young lady out of the wagon. The evidence shows that as a result of the accident one of the horses was so crippled and maimed that it was worthless. The case was tried upon the theory that plaintiff was entitled to recover if negligence was shown upon the part of the defendant and there was none upon the part of the plaintiff that directly contributed to the loss. Defendant urges as a matter of law that plaintiff was guilty of such negligence as Appeal from Circuit Court, Adair County; precluded his recovery in this case. This C. D. Stewart, Judge. "Not to be officially published." Action by Amos Mitchell against E. M. Violette. Judgment for plaintiff, and defendant appeals. Reversed and remanded. P. J. Rieger, of Kirksville, and Hall & Hall, of Trenton, for appellant. Fugate & Son, of Novinger, for respondent. BLAND, J. This is an action for damages to a horse gratuitously loaned by plaintiff to defendant for the latter's sole benefit. Plaintiff recovered a verdict and judgment in the sum of $250, and defendant has appealed. Defendant's first point is that his demurrer to the evidence should have been sustained. Taken in its most favorable light to plaintiff, the evidence shows that defendant borrowed from plaintiff a team and wagon for the purpose of taking defendant's family and a young lady friend to the country to gather nuts. The wagon was an ordinary one-horse wagon. Plaintiff had taken a regular large two-horse wagon tongue and dressed it down to make it light enough for the one-horse wagon. The tongue had a cap or ferrule on its end, with a flange to prevent the ring in the neckyoke from slipping back from the end of the tongue. The neckyoke was that of a regular two-horse wagon, and the ring in the yoke was too large for the ferrule and flange. To prevent the ring from slipping back over the flange a strap was provided, which was wrapped three times around the ring and flange for the purpose of holding the ring and the tongue together so as to prevent the flange from running forward through the ring of the neckyoke. Defendant received the wagon and team from plaintiff's wife, who assisted him in hitching up. When defendant reached the place where the nuts were to be gathered, he contention is based upon the claim that plaintiff or his agent furnished to defendant a defective wagon, wagon tongue, and neckyoke to go upon a road known to plaintiff to have been hilly and did not tell defendant of such defects and that they were not known to defendant. Plaintiff's wife, who was his agent, testified that defendant not only assisted in hitching up the horses but saw the team hitched up and that he understood its hitching; that she told the defendant that everything was all right and perfectly secure, but that if defendant did not understand anything about hitching up the team, "I will show you how to do it, and he seemed to understand everything all right," and "I told him if you don't understand the team don't unhitch them but hitch them to a tree." Defendant claims that he was hitching up the tugs when plaintiff's wife was fixing the neckyoke and did not see how the latter was arranged, but in view of plaintiff's testimony the jury was not required to take that of the defendant. It is admitted that defendant was there and saw the team hitched up, and as plaintiff's wife stated that defendant saw how it was done, the inference is strong that defendant saw how the neckyoke was attached to the tongue. It is apparent from the evidence that the defendant was familiar with the hitching and unhitching of the horses. He not only assisted plaintiff's wife in hitching the horses, but also unhitched them at the end of the journey, after he was cautioned by plaintiff's wife that if he did not know how to unhitch to leave the horses hitched to the wagon. [1-3] Defendant testified that when he started to return he saw the ring on the neckyoke was too large for the tongue, and that he saw the strap hanging down from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes nine to twelve inches. Defendant, being a bailee of the wagon and horses for his sole benefit was bound to take great care and use extraordinary diligence, and he was responsible for a slight neglect in relation to the subject-matter of the bailment. 6 Corpus Juris, 1127; Lawson on Bailments, § 38. And as defendant was familiar with such matters, the jury were justified in finding that he was guilty of negligence in not using the strap to safely tie the neckyoke and tongue, even if it were admitted that he did not see how the neckyoke and tongue were adjusted by plaintiff's wife at the beginning. We also think that the question as to whether plaintiff or his wife was guilty of negligence that contributed directly to the injury under the circumstances was a question properly submitted to the jury. [4] The petition alleges that the defendant so carelessly and negligently handled and managed the wagon and team that the wagon ran upon the left hind leg and foot of one of the horses causing the team to run away and resulting in the injury. Plaintiff's instruction No. 1 permitted plaintiff to recover upon any showing of negligence on the part of the defendant. It is axiomatic that a petition may not allege specific acts of negligence and recovery had upon general negligence. Detrich v. Met., 143 Mo. App. 176, 127 S. W. 603; Black v. Met., 217 Mo. 672, 117 S. W. 1142; Arata v. Met., 167 Mo. App. 90, 150 S. W. 1122. The negligence of which defendant was guilty, if any, was in failing to properly hitch up the team on the return journey. [5] The giving of plaintiff's instruction No. 5 was error. This instruction is couched in language that is very difficult, if not impossible, to understand, and tends to mislead the jury. If plaintiff on another trial desires to make use of the words "proximate" or "proximate cause," these terms should be defined to the jury. Turnbow v. Dunham, 197 S. W. 103; Montgomery v. Railroad, 181 Mo. 508, 79 S. W. 938. [6] Whether the neckyoke and tongue, arranged as plaintiff had this one, was a safe appliance was a question for the jury, and not one for expert testimony; also whether the absence of a sufficient brake on the wagon would render it dangerous. Presumably, the jury was composed largely of farmers and of those who were familiar with wagons such as the one involved in this case, and they were qualified to pass upon these questions without the aid of expert testimony. discharging this duty any expenses incurred in attempting to cure or restore the horse were properly allowable to plaintiff. Gilwee v. Pabst, 195 Mo. App. loc. cit. 490, 193 S. W. 886, cases cited therein. On the next trial the court should not submit to the jury any loss of which there is no evidence. We have examined the other points raised by defendant, and find no merit in them. The judgment is reversed, and the cause remanded. All concur. BAUERDORF v. HENRY VOSE WALL PAPER CO. (No. 12583.) (Kansas City Court of Appeals. Missouri. April 1, 1918.) 49(1)—As 1. SET-OFF AND COUNTERCLAIM SIGNEE-STATUTES. Defendant cannot assert, as a counterclaim against plaintiff assignee, a right of action against the assignor, since Rev. St. 1909, § 1807, provides that "a counterclaim must be one existing in favor of defendant and against a plaintiff." 2. SET-OFF AND COUNTERCLAIM 35(1)—DEMANDS NOT LIQUIDATED-STATUTES. Buyer of wall paper, only a small part of which was delivered, cannot, when sued by asclaim as a set-off damages for seller's breach; signee of seller for price of paper delivered, such claim being unliquidated within Rev. St. 1909, § 1867. 3. SET-OFF AND COUNTERCLAIM ~~8(1) — EQUITABLE SET-OFF-UNLIQUIDATED CLAIM. Where seller agrees to fill certain orders of wall paper, but delivers only part of one order, the buyer, in action for price of paper delivered, has no equitable set-off for his claim of damages against seller for breach of contract to fill all orders; such claim being unliquidated. Appeal from Circuit Circuit Court, Buchanan County; Charles H. Mayer, Judge. "Not to be officially published." Action by Charles R. Bauerdorf, trustee, against the Henry Vose Wall Paper Company, Judgment for plaintiff, and defendant appeals. peals. Affirmed. Groves & Watkins, of St. Joseph, for appellant. Spencer & Landis, of St. Joseph, for respondent. BLAND, J. This is a suit upon a contract wherein defendant purchased wall paper from Frederick Beck & Co. Frederick Beck & Co. for value assigned this contract to plaintiff. Plaintiff prevailed in the lower court, and defendant has appealed. The facts show that the defendant was a jobber of wall paper, located in the city of St. Joseph, Mo. Frederick Beck & Co. was a manufacturer or printer of wall paper, lo [7] We do not think the court erred in cated at Hoboken, N. J. Beginning with Nosubmitting an instruction to the jury allow-vember 15, 1916, defendant sent in to Freding plaintiff his expenses on account of pasturage of the maimed horse together with medicine and veterinary services. It was the duty of plaintiff to minimize as much as possible the damages to defendant, and in erick Beck & Co. several written orders for wall paper, which were accepted by the latter. This suit is for the contract price of a part of the first shipment. Defendant admitted that the amount claimed was correct, but claimed damages by reason of alleged age Co. v. Campbell, 164 Mo. App. 8, 147 S. breaches of the contract. The evidence shows that each manufacturer or printer of wall paper had individual or distinct prints, and that a custom existed for wall paper jobbers to make up sample books from these prints and place them before their customers, from which the latter selected the paper desired. The evidence shows that the first order, or the order sued upon, was for the purpose of making these samples. Defendant was put to great expense in making up these sample books, which were worthless for the reason that Frederick Beck & Co. went into bankruptcy, and failed to fill the remainder of the first order and the subsequent orders of paper to correspond with the samples. Defendant was able to get elsewhere only a portion of the paper to fill orders secured on these samples. The failure of Frederick Beck & Co. to fill the remainder of the first and the subsequent orders also put defendant to other expenses in reference to the matter. It was shown that Frederick Beck & Co. knew that the first order was filled for the purpose of making up the sample books, and knew that the paper contained in this order was worthless, unless subsequent orders were filled. The petition sues for that part of the first order that was filled, which was assigned to plaintiff. The answer was a general denial and a "counterclaim and equitable defense and recoupment"; the latter stating facts as already detailed, pleading them as a set-off or counterclaim, and asking damages for the failure of Frederick Beck & Co. to fill the remainder of the first and subsequent orders, and also for $29.40, being the amount of money defendant was required to pay in excess freight by reason of the shipment sued upon being diverted by Frederick Beck & Co. over an indirect route to St. Joseph, Mo. Defendant contends that the various orders, including the first order, was one entire contract, and as Frederick Beck & Co. failed to perform that contract, that its assignee, the plaintiff, cannot recover in this suit, and that while defendant under its counterclaim or set-off cannot recover a judgment over against plaintiff, it can maintain its counterclaim or set-off for the purpose of defeating plaintiff's suit. It is the contention of the plaintiff that the various orders were separate contracts, but, under the law as we view it, it is unnecessary to determine whether the orders were one entire contract or separate contracts. We will assume, for the purpose of the case, that they were one contract. W. 545; Estate Co. v. Arms Co., 110 Mo. App. 406, 86 S. W. 489; Volker v. Stone, 181 Mo. App. 311, 168 S. W. 902. Defendant is not entitled to maintain its defense as a set-off under our statutes, section 1867, R. S. 1909, providing, "In actions on assigned accounts. * * * the defendant shall be allowed every just set-off or other defense which existed in his favor at the time of his being notified of such assignment," for the reason that the damages claimed are unliquidated, and nothing may be claimed as a set-off except liquidated damages. Brokerage Co. v. Campbell, supra; Estate Co. v. Arms Co., supra; Volker v. Stone, supra. [3] However, defendant says that it may maintain its defenses as an equitable setoff, and cites in support thereof the cases of Barnes v. McMullins, 78 Mo. 260, and Fulkerson v. Davenport, 70 Mo. 541. Even under these cases in order to maintain an equitable set-off or counterclaim defendant's claim must be a liquidated one, and not one that requires the impaneling of a jury to liquidate. It is urgently claimed by defendant that it was greatly mistreated by Frederick Beck & Co. and that to permit a recovery against defendant in this suit would work an injustice upon it. While the Legislature has legislated upon the subject, it has failed, as shown by the cases cited, to enact any law permitting the relief to defendant to which it urges it is entitled. Of course, it is not for the court to make the law. It is not necessary for us to decide what would have been the result if defendant had pleaded in his answer the facts set up in his counterclaim, or set-off, as a bar to plaintiff's action. The judgment is affirmed. All concur. 2. MUNICIPAL CORPORATIONS 446 — GRADING TAX BILLS-VALIDITY. Where a contractor did not substantially comply with the specifications in a contract for improvement, the grading tax bills issued to him were void. 3. COSTS 63-PARTIAL RECOVERY-APPOR TIONMENT. [1, 2] Defendant cannot maintain its counterclaim or set-off for the reason that a counterclaim under the laws of this state may not be asserted against as assignee, as The circuit court had power to assess twounder section 1807, R. S. 1909, a counter-thirds of the costs against plaintiff, and did not abuse its discretion in so doing, where there was claim "must be one existing in favor of a judgment for plaintiff on the third count, and defendant and against a plaintiff." Broker- for defendant on the first and second counts. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Circuit Court, Buchanan hump, would benefit their lots, and the conCounty; C. H. Mayer, Judge. "Not to be officially published." Suit by John F. Buis against Louis Nestler and others to recover on a grading tax bill and a sewer bill, with cross-bill by defendant. Judgment for plaintiff on the sewer tax bill, and judgment for defendants on the grading tax bills, and plaintiff appeals. Affirmed. Fulkerson & Fulkerson, of St. Joseph, for appellant. Barney E. Reilly and W. B. Norris, both of St. Joseph, for respondents. BLAND, J. This is a suit in three counts; each of the first and second counts is to recover on a grading tax bill, and the third count is on a sewer bill. Defendant filed an answer and cross-bill setting up various defenses, alleged that the tax bills were void, and for that reason a cloud rested upon the title of the property affected, and, consequently, that defendant had no adequate remedy at law, and asked that the tax bills be declared void and the title be cleared from the cloud mentioned. There was no defense made to the sewer tax bill, and judgment was rendered for plaintiff on that bill, but the court rendered judgment for the defendant on the grading tax bills. tractor needed the dirt for filling in the other parts of the work. Plaintiff secured waivers from the property owners abutting the portion of the alley he proposed to grade farther, but procured none from defendant, assigning as a reason therefor that he did not think defendant would be injured by the new excavation. The additional excavation was consented to by the city engineer's office and the work was done, resulting in an additional excavation of seven feet below the established grade at one place, and at the junction of the east and west and the north and south alleys, where defendant's property abutted the new work, the new excavation ran three or four feet below the established grade. There was evidence that this damaged defendant's lot, in that he had to remove fences and buildings and grade down his lot to meet the new, or additional grade made by the contractor. Defendant testified that this damage amounted to $250. We It is plaintiff's contention that the weight of the evidence is that there was no reduction of the grade at the junction of the north and south and east and west alleys. think the weight of the evidence is to the contrary. The fact that there was additional [1] As we have concluded that the judg- three or four feet was testified to by Mr. Haexcavation at said point to the extent of ment of the court was right, it is unnecessary for us to take up the various defenses made zen, a civil engineer who made a survey for to the grading tax bills. We only discuss a the purpose of determining the matter, by a to the grading tax bills. We only discuss a lay witness, one Howard, who was acquaintdefense that we think is conclusively against lay witness, one Howard, who was acquaintthe validity of the tax bills. The proceeding ed with the situation, and by defendant him under which the tax bills were issued was an ordinance of the city of St. Joseph, Mo., authorizing the grading of a street and alleys. Defendant's property touched an east and west and a north and south alley, and the rear, or northwest, corner of defendant's lot abutted upon the junction of these alleys. It seems that in the vicinity of defendant's premises the ordinance and contract provided for excavation work, and at another portion of the work a large fill was required to be made. The contractor did not have sufficient earth from the street and alleys to be graded down, that were covered in the contract, to make the fill at the lower portion of the work, and he secured additional dirt from grading . private property in the vicinity. After the alley north of plaintiff's lot had been brought to the grade established in the ordinance, the property owners who owned land abutting on the west half of the alley (defendant's lot abutted on the east half) agreed that the contractor should make a further excavation on the west half of the alley. It seems that the property owners thought that the further excavation, described as a self. The only evidence introduced by plainIt is true that Mr. Hess, city engineer, testitiff to contradict this was his own testimony. fied that he did not think there was any lowering of the grade at the point mentioned, but there is no showing that this witness ever made a survey of the work to find out whether there was a reduction of the grade, and his testimony shows that he was doing nothing but hazarding a guess in reference to the matter. The testimony of City Engineer Hoff was likewise of a very indefinite and unsatisfactory character. [2] We are of the opinion that plaintiff not having substantially complied with the specifications contained in the contract for the improvement, the tax bills sued upon are void. Heman v. Gerardi, 96 Mo. App. 231, 69 S. W. 1069; Coulter v. Construction Co., 131 Mo. App. 230, 110 S. W. 655. [3] The court had the power to assess twothirds of the costs against plaintiff and onethird against defendant, and did not abuse his discretion in so doing. Bender v. Zimmerman, 135 Mo. 53, 36 S. W. 210. The judgment is affirmed. All concur. CITY OF ST. JOSEPH v. RACKLIFFE- leges in its petition that within the seven GIBSON CONST. CO. et al. (No. 12803.) (Kansas City Court of Appeals. Missouri. April 29, 1918.) MUNICIPAL CORPORATIONS 375 STREET RIGHT OF THE CITY TO RECOVER. years limited in the contract the pavement "became badly in need of repairs," setting out the facts in relation thereto; that it notified defendant construction company "to correct and make good the faults, defects, and imperfections therein"; that afterwards the engineer determined in detail the extent of the faults and imperfections in the street, curbing, and sidewalks, setting out each defect with the estimated cost of repairing it, A city cannot maintain an action against a contractor for breach of guaranty in failing to repair pavement, where city suffered no damage; the loss falling on the abutting property owners for whom the city is not suing as trus-all aggregating the sum of $951.50, as set tee. Appeal from from Circuit Court, Buchanan County; Charles H. Mayer, Judge. "Not to be officially published." Suit by the City of St. Joseph against the Rackliffe-Gibson Construction Company and another. From a judgment for defendants, plaintiff appeals. Affirmed. Charles L. Faust, City Counselor, Perry A. Brubaker, Asst. City Counselor, and Herman Hess, 2d Asst. City Counselor, all of St. Joseph, for appellant. Spencer & Landis, of St. Joseph, for respondents. forth in the first count, and $157.50 in the second count. The right of the city to maintain this action is denied by defendants. Tax bills against abutting property have been issued in payment for the work as called for in the contract, which work was to be maintained for seven years. If the work was not of a character to last that time and was in need of repairs, the loss, of course, would fall upon the property owners. That being true, the only ground upon which the city could maintain an action would be as trustee for such persons, and it does not ap have that capacity. St. Louis v. Anderson, 229 Mo. 181, 185, 186, 129 S. W. 528, 138 Am. St. Rep. 414; St. Louis v. Wright Contracting Co., 210 Mo. 491, 109 S. W. 6; St. Louis v. Wright Contracting Co., 202 Mo. 451, 101 S. W. 6; City of Bethany v. Howard, 149 Mo. 504, 51 S. W. 94. It follows that the trial court took the proper view in finding for defendants. ELLISON, P. J. Defendant Rackliffe-Gib-pear from the petition, contract, or bond to son Construction Company, agreed by its contract in writing with the plaintiff city to do certain street paving in the city, including sidewalk and curbing. Among other provisions the contract contained the following: That the construction company would furnish the material and do the work to the satisfaction of the board of public works of the city, and would "maintain the same in a state of perfect repair for a period of seven We have noted above the seeming inconyears." Then following, in the same sen- sistency or ambiguity in the contract in first tence, is the apparently inconsistent provi- providing that the work shall be maintained sion that the construction company "guar- and kept in a perfect state of repair for anteed that the work herein mentioned shall seven years, and also that it shall be so conbe constructed with such material and instructed that it will endure without repair such manner that the same shall endure for that period. But we are of the opinion without the need of any repairs for a period that the reasonable meaning is that, if deof seven years from and after the comple- fects appear in the limited time, they may tion and acceptance of the same, without be repaired by the contractors, so as to keep further compensation than that provided for the work restored and "in a state of perfect in this contract." A bond was given, with repair," and thereby his obligation be disdefendant Preston as surety, conditioned for charged. At any rate these remarks on a faithful performance of the contract. The these provisions do not interfere with our work was finished, accepted by the city and conclusion as to the right to maintain the paid for by the issuance of tax bills against action. abutting property owned by a number of citizens. The city, claiming that the work had not been kept in repair and had not endured for seven years without the need of repairs, brought this action on the bond for a breach of that part of the contract, the petition being in two counts. In the circuit court the trial was without the aid of a jury, and judgment rendered for defendants. It appears that the city has not had any repairing done, and that it has not laid out any money on account of the work, nor have the property owners caused any repairing to be made. There was evidence, incidentally, that the park board had made some repairs, but no cost was shown. The city merely al The judgment is affirmed. All concur. PRICHARD v. CONNECTICUT FIRE INS. 1. (Kansas City Court of Appeals. Missouri. April 29, 1918.) INSURANCE 131(2) ORAL CONTRACT- An agent, having power to solicit and take applications, collect premiums, and countersign and deliver fire policies, may bind a foreign insurance company by an oral contract, in view of foreign insurance company shall be counterRev. St. 1909, § 7047, providing that policy of signed by licensed resident agent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |