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the Kansas City, Clay County & St. Joseph , contract, and one of its members had the Railway, while the construction company un- skill, financial ability, and special equipment dertook to furnish cars for the removal of to perform it. This he consented to do upon the finished material as crushed, The ob- such terms as would produce a net profit for ject of the suit is to recover damages for the all of 10 per cent. of the gross amount to be failure of the latter to furnish the cars. received. His two partners had nothing to

It is not stated that the defendant was do by way of earning it except to stand by the owner of the railway, nor is the suit him in seeing that the work was put up to predicated to any extent upon that theory. him in the same manner that it was to have It is rather the product of the annulated sys- | been presented to all. They were to see that tem of inaugurating and installing such en- the railway company's cars were set to his terprises, in which the outer circles alone are crusher, that he be permitted to quarry and exposed to ordinary inspection. We there-store his rock and scatter his débris on the fore assume that the defendant corporation right of way, and he would do the rest. That was a contractor for the construction, if not he faithfully performed his part of the agree of the entire railway, at least of that part | ment is plainly stated in the petition. That included in the contracts pleaded in the pe- their part was not performed is the motive tition, and that the partnership was a sub- for the action. The agreement calling for this contractor for furnishing the ballast. There division of labor and responsibility was solebeing no reference in the petition to any oth- ly between the partners. The defendant corer purpose of the existence of the partner- poration had nothing to do with it. Had ship, we will also assume, as we must, that there been a failure to perform the work, it was created for the purpose of doing this its remedy would have been against the partparticular work. The plaintiff seemed to nership with which the contract was made. have or to be able to procure the necessary Upon its own failure to perform, it must reequipment and means to do the work. The spond to those with whom he had agreed to contribution of the others, in addition to perform it. their assumed ability to assist in obtaining There no privity of contract between the contract and securing its performance the plaintiff and the defendant corporation, by the construction company, does not ap- and the agreement between the partners not pear. This performance included the connec- constituting an assignment, and being incontion of the railway tracks and furnishing of sistent with the intention to assign the origicars to the crusher, and permission to use, nal contract, it is plain that the petition for certain purposes, the railway right of states no cause of action by plaintiff in his way.

own right against the defendant corporation. Immediately upon the execution of the con- The right of plaintiff to sue as a partner tract sued on, the partnership, by its collec- upon the same contract between the coparttive name, made the contract with the plain- nership and the corporation which he now tiff which is cha ed in the petition to be an sues on as assignee making his copartners assignment of the contract with the defend- defendants under section 1733, Revised Statant corporation. It assumed as a partner- utes 1909, would present a more difficult quesship all the obligation assumed by the cor- tion (Ryan v. Riddle, 78 Mo. 521; Clark v. poration in the former contract, except that Railroad, 219 Mo. loc. cit. 537, 118 S. W. 40 et. whereas the corporation had agreed to pay seq.), upon which we are not now called upon 68 cents per cubic yard for the ballast, the to express any opinion. Even did the petition partnership agreed to pay to plaintiff only state a cause of action in behalf of the part61.2 cents per yard. It required no bond. nership, which it does not, it is doubtful if The meaning of this contract is the subject the plaintiff, having dismissed as to one of of contention in this suit. The plaintiff con- his partners who failed to plead, could furtends that it constituted an assignment to ther maintain it. His cause of action upon him of the first subcontract between the cor- that theory would be a joint one, to which poration and the partnership, for the con- all would be indispensable parties, because sideration of 6.8 cents per yard, the differ- all would have a voice in determining whethence in the two prices, and in his petition er the suit should be instituted and mainhas grounded his right to recover entirely tained or not (Gilmore on Partnership, p. 364 upon that theory. It is true that he charges et seq.), as well as a common interest in its that the defendant corporation knew that he subject-matter. We do not express an opinwas doing the work and dealt with him ac- ion on these questions because they are not cordingly, but it is plain that this would have presented by this appeal. no other or greater effect than in case of any

For the reasons stated the judgment of the

circuit court is affirmed. subcontractor. The suit is at law and not in equity, and it must stand upon the interpre

RAILEY, C., not sitting. tation of these two contracts as they were written.

PER CURIAM. The foregoing opinion of Applying the words of this instrument to BROWN, C., is adopted as the opinion of the the conditions as we have stated them, they court. All concur; BOND, P. J., in result construe themselves. The partnership had a / only.

TIONS.

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JONES V. JONES et al. (No. 12664.) for five more shares and placed them on the

books of the bank in the name of his son, (Kansas City Court of Appeals. Missouri. Jan. 28, 1918.)

Elliott Jones, and also had them made out

in the name of Elliott Jones. Afterwards A. 1. GIFTS Omm 29CORPORATION STOCK-DELIVERY-REQUISITES.

G. Jones bougnt two more shares of Dr. TifIt is not a sufficient delivery of stock for a fan and had them placed in the name of his party merely to have the stock transferred to said son, Elliott Jones, and had them transthe name of the donee, but in addition to this ferred to his son and put in the latter's name an actual or constructive delivery of the stock to the donee must be shown.

on the books of the bank. Some time after 2. GIFTS Om47(1)-CORPORATION STOCK-DE- these occurrences A. G. Jones, as president LIVERY-REQUISITES-PRESUMPTIONS.

of the bank, sent written notices to all of the The law will raise a presumption of a gift stockholders of the bank notifying them of from parent to child from circumstances where the annual meeting of the stockholders to it would not be presumed between strangers. 3. Gifts Om 50_CORPORATION Stock-DELIV. elect officers, etc., and one of these notices ERY-REQUISITES-QUESTIONS FOR JURY. was mailed to and received by his son, Elli

Where a father had shares of stock issued to ott Jones. A. G. Jones attempted to vote the his son on the books, and mailed him notice of a stockholders' meeting, his retaining the stock seven shares in the name of Elliott Jones at and attempting to vote it in his son's absence, a meeting of the stockholders, but for the without a proxy, did not show as a matter of reason that he had no proxy from Elliott law that there was no delivery.

Jones the other stockholders refused to per4. APPEAL AND ERROR O 999(1) SCOPE VERDICT ON FACT QUESTION.

mit him to do so. These seven certificates of Where the evidence raised an issue of fact, stock in the name of Elliott Jones were kept the court on appeal cannot review the verdict in the private bank box of A. G. Jones at thereon.

Hamilton, Mo. The evidence does not dis5. GIFTS 47(2) - ACCEPTANCE PRESUMP

close what arrangements, if any, as to this Where a gift is entirely beneficial to the stock existed between Dr. Jones and his son. donee, his acceptance of it will ordinarily be pre- Elliott H. Jones. sumed unless the contrary appears.

In the month of August, 1914, A. G. Jones 6. WITNESSES 145—COMPETENCY.

In replevin by administratrix and wife of died and the defendant Maude Jones became deceased in whose name stock stood, against his administratrix. Said defendant in the the wife and administratrix of deceased's fa- course of the administration of the estate ther, the plaintiff was not "incompetent under found these seven shares in A. G. Jones' the statute for any purpose.' 7. APPEAL AND ERROR O 690(4) SCOPE

bank box and she took possession of them RECORD-SUFFICIENCY.

and inventoried them as assets of the estate Where an exhibit alleged to have been er- of A. G. Jones, deceased. In the year 1914 roneously admitted was not set out in the ab- Elliott Jones also died and the plaintiff, Ada stract of record, the court on appeal could not Jones, was appointed administratrix of his review its admission.

estate and demanded of the defendant Appeal from Circuit Court, Livingston Maude Jones that she deliver to her the County; Arch B. Davis, Judge.

said seven shares of stock as assets of the "Not to be officially published."

estate of Elliott Jones, deceased, but said Replevin by Ada Jones, as administratrix defendant refused and this suit in replevin of the estate of Elliott Jones, deceased, was brought. A trial before the court reagainst Maude Jones, as administratrix of sulted in a judgment in favor of plaintiff, the estate of A. G. Jones, deceased, and an- and defendants have appealed. other. Judgment for plaintiff, and defend

Defendants make the point that a demurants appeal. Affirmed.

rer to the evidence should have been susScott J. Miller, of Chillicothe, and Lewis tained for the reason, as defendants say, W. Reed, of Breckenridge, for appellants. that there was no delivery of the stock in Frank Sheetz and S. L. Sheetz, both of Chil- the lifetime of A. G. Jones to Elliott H. licothe, for respondent.

Jones. It has been suggested that A. G.

Jones placed the seven shares of stock in BLAND, J. This is a suit in replevin to the name of his son in order to circumvent obtain possession of seven shares of bank his agreement with the other stockholders stock. After the controversy a rose, the that each should only have ten shares of stock, by agreement of the parties, was sold | stock. There is no direct evidence on this and the money realized therefrom was by point; the suggestion rests upon inference said agreement to take the place of the only; and as the court found for the plainstock.

tiff this issue had been decided against the Some years prior to the filing of this suit defendants. A. G. Jones and some others organized a [1-4] As to the matter as to whether there bank in the town of Hamilton, Mo., and it was a consummated gift by A. G. Jones to was agreed among the stockholders that his son, the rule of law is that it is not a none should be permitted to own more than sufficient delivery of stock for a party to ten shares of the capital stock. A. G. Jones merely have the stock transferred to the took ten shares in his own name and paid name of the transferee, but in addition to

Om For other cases see same topic al I KEY-NUMBER in all Key-Numbered Digests and Indexes

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this an actual or constructive delivery of the , 1079; Gentry v. Field, 143 Mo. loc. cit. 409, stock to the transferee must be shown. Le- 45 S. W. 286. brecht v. Nellist, 184 Mo. App. 335, 171 S. W. We have carefully examined the other 11; Gray v. Doubikin, 188 Mo. App. 667, 176 points raised by defendants as to the admisS. W. 514. However, we think there was sion of testimony, and find that the court did other evidence strongly tending to show that not err in its rulings in reference thereta Dr. Jones delivered this stock to his son. In The judgment is affirmed. All concur. the first place, the law will raise a presumption of a gift from parent to child from circumstances where it would not be presumed between strangers. Betts v. Francis, CITY OF HIGBEE v. BURGIN. (No. 12398.) 30 N. J. Law, loc. cit. 158; Love v. Francis, (Kansas City Court of Appeals. Missouri. 63 Mich. 181, 29 N. W. 843, 6 Am. St. Rep.

Dec. 3, 1917.) 290; 14 Amer. & Eng. Encyc. of Law (2d Food C3-ORDINANCES-POWER TO EXACT Ed.) 1035. It seems to us that the reten

LICENSE “PRODUCE" "AGRICULTURAL

PRODUCTS." tion of the shares of stock by Dr. Jones, un

Under Rev. St. 1909, $ 9516, providing that der the facts in this case, does not show as no city shall have power to levy or collect a a matter of law that it was not his inten- license fee from any farmer for the sale of tion to part with them, for if this was his in- “produce” raised by him when sold from his tention, why did he mail a notice of the censing certain occupations, but excluding from

wagon, and section 10282, providing for listockholders' meeting to his son? If he con- its operation persons dealing in "agricultural sidered that the stock was his own and not products," defendant farmer who sold from his his son's, he would not have treated the made from hogs raised and butchered by him

wagon in plaintiff city spareribs and sausages stock as his son's by mailing to the latter could not be punished for selling meat without a notice of the stockholders' meeting. While a license contrary to ordinance; he being a he attempted to vote the stock without a

vendor of "produce" within section 9516. proxy from his son, this does not conclusive [Ed. Note. For other definitions, see Words ly show that he considered the stock as his and Phrases, First and Second Series, Produce;

First Series, Agricultural Product.] It is not uncommon for people to vote stock of relatives without exhibiting a proxy

Appeal from Circuit Court, Randolph Counalthough such vote could not be counted if ty; A. H. Waller, Judge. challenged. The court sitting as a jury

Prosecution by the City of Higbee against passed upon this question, and we do not Charles Burgin for selling meat without a think that we may review his action, as the butcher's license. On a trial by the court evidence on the point raised an issue of fact. there was a finding for defendant, and the

[5] While there is no evidence that Elliott City appeals. Affirmed. H. Jones did anything to show an acceptance Willard P. Cave, of Moberly, for appellant. of the stock on his part (unless such accept- F. E. Murrell, of Sapulpa, Okl., for respondance is so shown by the receipt of the

ent. notice of the stockholders' meeting by him without any action thereon), nevertheless, it

BLAND, J. Defendant was prosecuted by is a rule of law that where a gift is entirely appellant city for selling meat without a beneficial to the donee, his acceptance of it butcher's license contrary to an ordinance of will ordinarily be presumed, unless the con- the latter. On a trial by the court a finding trary appears. 14 Amer. & Eng. Encyc. of for defendant was had and the city has apLaw (2d Ed.) 1027. We do not believe that

pealed. we may review the action of the court in

Defendant was a farmer and sold from his finding as a fact that the gift was actually wagon in appellant city, near which he lived, accepted.

spareribs and sausage made from hogs rais[6] Defendants urge that the court erred ed and butchered by him. The sole question in permiting plaintiff to testify as a witness. in the case is whether the things sold by deWhen plaintiff was offered as a witness the fendant were “produce” within the meaning defendants objected to her testifying on the of section 9516, R. S. 1909. If they were, ground that “she was incompetent to testify then defendant cannot be subjected to a liunder the statute for any purpose.” This

cense by the city. The section of the statobjection was overruled and properly so. ute mentioned provides as follows: Weiermueller v. Scullin, 203 Mo. 466, 101 S.

“No incorporated city, town or village in this W. 1088, and cases therein cited; Gray v. state shall have power to levy or collect any Doubikin, supra. There is nothing in the tax, license or fees from any farmer, or producer case of Brown v. Patterson, 224 Mo. 639, 124 hin, her or 'them, when sold from his, her or

or producers, for the sale of produce raised by S. W. 1, to the contrary.

their wagon, cart or vehicle, or from any person [7] Defendants claim that the court erred or persons in the employ of such farmer or in admitting in evidence Exhibit C. As the producer in any such city, town or village.” exhibit is not set out in the abstract of rec The word “produce” may have a variety of ord we are unable to pass upon this point. meanings dependent upon the connection in Lumber Co. v. Rogers, 145 Mo. 445, 46 S. W. which it is used. In reference to the produce

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

loe

of a farmer the Court of Appeals of the Dis- jand horticultural products, including milk, trict of Columbia said:

butter, eggs, and cheese. It is urged by ap“But the common parlance of the county, and pellant that hog killing and dressing do not the common practice of the country, have been come within those things excluded by this to consider all those things as farming product

statute from its operation, and that, thereor agricultural products which had the situs of their production upon the farm, and which fore, this defendant is a peddler under the were brought into condition for the uses of provision of that statute, and not a vender society by the labor of those engaged in agricul- of farm produce under section 9516, supra. tural pursuits, as contradistinguished from man- The Supreme Court has held that section ufacturing or other industrial pursuits.”

10282 relates to peddlers' licenses, and that This is the only definition of farm produce it has no application to a farmer selling his we have been able to find in the books. How- produce in a city. St. Louis v. Meyer, 185 ever, we think it a fair definition of the term, Mo. 583, 84 S. W. 914. and we therefore adopt it for the purposes We are unable to see how it can be said of this case. Under the definition given it that fresh meats do not come within the defiseems to us beyond question that the pursuit nition of agricultural products as that term undertaken by defendant was that of vending is used in section 10282 of the statute. The "produce” within the meaning of our statute, only suggestion made by appellant as to why supra. The meat being sold by defendant this could not be the case is that appellant was raised and brought into use for human says that fresh meat is more easily contamiconsumption on the farm by the defendant nated, and that it more easily spoils than who was engaged in agricultural pursuits and ordinary agricultural products. We are not was, therefore, farm produce. See Fitch v. prepared to say as to the correctness of the City of Madison, 24 Ind. 425.

statement in reference to the perishable qualiIt has been suggested that the American ties of fresh meat, nor can we see what difpeople are a very versatile one, and that by ference the proposition, if true, would make. reason of this attribute the farmer has some- The license ordinance we have under considtimes been his own manufacturer to a large eration has nothing to do with the right of extent, and in this connection it is said that the city to enact sanitary regulations. the killing and dressing of beef or hogs by From what we have said defendant was farmers is not an agricultural pursuit, but not subject to appellant's license ordinance, one of slaughtering or slaughterhouse oper- and the judgment will be affirmed. All conation. Mayor v. Davis, 6 Watts & S. (Pa.) cur. 279. While the distinction between agricultural pursuits and those of an artisan or SHUCK V. SECURITY REAUTY CO. manufacturer is not an easy one in all cases,

(No. 12767.) we cannot see why the killing and dressing

(Kansas City Court of Appeals. Missouri. by the farmer of fresh meat raised by him

Feb. 18, 1918.) can be said to be any more the work of a 1. NEGLIGENCE C66(2) EVIDENCE Conmanufacturer or an artisan than the killing TRIBUTORY NEGLIGENCE. and dressing of poultry. The raising, killing, A cement construction company's employé, and dressing of the latter has become one of who went to repair an outside curb at a new

building on which he had worked some days the greatest industries of agricultural Amer- before, and, in looking for water, went down a ica. If, instead of selling the sausage and dark stairway well without a light, and fell, spareribs of the hogs, defendant had sold the there being no handrail, was grossly negligent lard rendered from their fat, could it be and could not recover; having built the stair

way himself, and having known that there was said that the lard was not "farm produce”? no rail a few days before. or would it do to say that when a farmer 2. NEGLIGENCE 32(3) — INVITEES — LICENis making his butter and cheese he is engaged in the creamery business? We think

Where a building owner requested a con

struction company to repair an outside curb, not. Similar comparisons could be made ad its employé, who went into an open stair well infinitum. Whatever might have been said while going to the basement for water, which he in the beginning as to the farmer being en might have secured elsewhere, exceeded the gaged in the pursuit of slaughtering, slaugh- bounds of the invitation and was a mere licensee. terhouse operation or meat packing, when he Appeal from Circuit Court, Jackson Counbutchered stock raised on his farm, such as ty; Wm. 0. Thomas, Judge. the hogs involved in this case, the usages and Action by E. D. Shuck against the Security practices of generations on American farms Realty Company. Judgment for defendant has in this day made such a practice one of after demurrer to the evidence was sustainagriculture or farming. However, it is in- ed, and plaintiff appeals. Affirmed. sisted that the Legislature has by another Atwood, Wickersham, Hill & Popham, of enactment manifested a policy as to the char- Kansas City, for appellant. Lathrop, Moracter of business in which defendant is en

row, Fox & Moore, of Kansas City, for regaged in section 10282, R. S. 1909. This sec- spondent. tion provides for the licensing of certain occupations therein named, but excludes from ELLISON, P. J. Plaintiff's action is for its operation persons dealing in agriculturall personal injury received by him by falling

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

SEES.

down a "well hole" around which a stair That is, he chose, in utter darkness, to risk way to a building was constructed. The trial finding a handrail which he did not know was court sustained a demurrer to the evidence, there, and which was not there when he left and judgment was rendered for defendant. the building 10 or 12 days previous, instead

The defendant, Security Realty Company, of following the wall. was the general contractor for the erection [1] But, aside from this, the consideration of a large building, and it sublet the entire of his failing to follow the wall and feel with work; different parts to different contrac- his feet for the top step leads one to ask tors. The Crosby Construction Company was how any man, in his senses, could have atone of these; having the entire concrete tempted to find the steps in an unfinished work, including sidewalk and curbing. building in "pitch darkness," without taking Plaintiff worked for the latter company and the precaution to get a light, a match, if put in the stairway here involved, as the nothing else. It is not to be accounted for foreman for such company. It was a cement except on the ground of the grossest carestairway. Plaintiff numberless times was up lessness. and down the "form steps" before the final Plaintiff, seeing the advantages an invitee structure was run, set, and finished, and so has over a mere licensee, alleged in his petihe was after it was completed. On complet- tion that he was invited by defendanting the stairway he had the form work torn “to come to and upon said premises for the pur; away, including a temporary railing on the pose of doing certain cement work upon said side opposite the wall. The part of the stair- premises and building; that for the purpose of way in controversy was located in a dark obtaining water for said work it was necessary place, and plaintiff had provided his own

for the plaintiff to go to the basement of said

building," etc. lights. Ten or twelve days after he finished the contract for the Crosby Company and [2] The Williams Realty Company, the after he had left the building, a small por- owner, was the party who requested the tion of the curbing to the sidewalk had been Crosby Company to send some one to fix the knocked off, or had crumbled, and the Cros- injured place in the curbing, and that comby Company was asked by the Williams pany sent plaintiff, who, as we have said, Company, the owner, to fix it. That com- took his bucket and trowel and went there. pany requested plaintiff to do so. He went The Williams Company was discharged at to the building with his bucket and trowel, the close of the evidence by direction of the but did not take any material, though he court, and plaintiff concedes in his statement knew the Crosby Company under the contract here that this action of the court was propwere to furnish material, He found some But if the Security Company, defendant, cement and sand and then began to look for had sent the same invitation the evidence water. He asked some men who were laying shows that it was not an invitation to go infloors and they informed him that the water to the building, but to fix a very small injury “had been cut off.” He then went to the rear to the curbing on the sidewalk. Vor was of the building where he had formerly got there anything to show that it was neces- · water for his work, but did not succeed in sary that plaintiff go to the basement for getting any, as the key to the faucet was not water as alleged in the petition. He might there. He then concluded to try in the base- have gotten water at many places elsewhere. ment, though he had never gotten any there He started to the basement of his own choice, when at work on the building and did not without endeavoring to get a key to the fauknow whether he would find any. He went to cet, and, as stated above, he had never gone the stairway that he had built. He testified there for water when he worked on the buildthat "it was pitch-dark in there;” that "it ing. When an invitee steps beyond the was pitch-black in there." He had used bounds of his invitation, he becomes, at most, torches as lights when he worked there be

a mere licensee. Menteer v. Scalzo Fruit fore, but had none at this time. He felt in Co., 240 Mo. 177, 83, 144 S. W. 833. See, his pocket for a match and found none, but, also, Carr v. Railroad, 195 Mo. 214, 226, 92 instead of turning back for a light, he went S. W. 874, and Shaw v. Goldman, 116 Mo. on towards the steps without even taking the App. 332, 92 S. W. 165. precaution to follow the wall with his hand,

There was no evidence that the Security and walked into the hole. At this point in Company, the present defendant, had any. his testimony, plaintiff was not as candid as thing to do with the request. It may be that he might have been. When being reminded if the Williams Realty Company, as owners, on cross-examination that he might have fol- had demanded of defendant, Security Comlowed the wall with his hand and gotten down pany, that the curbing be repaired, it would the steps in safety, he said he did not know have denied any obligation to do so and rethat he could ; that he might have overbal- fused to request the Crosby Company to anced and that he might have stumbled. But make it. So that we think plaintiff failed to finally he admitted he could have gotten show that he was defendant's invitee, and he down by that course, and then stated that:

can find no aid from that source. "It is just as natural to me to go to the band

It, however, is not worth while to discuss rail, and while feeling for the handrail to guard against falling down the stairs, 1 stepped off that phase of the case, since it is too plain into the opening.”

for argument that plaintiff, whether invitee

er.

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