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the Kansas City, Clay County & St. Joseph, contract, and one of its members had the Railway, while the construction company undertook to furnish cars for the removal of the finished material as crushed. The object of the suit is to recover damages for the failure of the latter to furnish the cars.

skill, financial ability, and special equipment to perform it. This he consented to do upon such terms as would produce a net profit for all of 10 per cent. of the gross amount to be 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 agreeof 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 the contract and securing its performance by the construction company, does not appear. This performance included the connection of the railway tracks and furnishing of cars to the crusher, and permission to use, for certain purposes, the railway right of way.

There being no privity of contract between the plaintiff and the defendant corporation, and the agreement between the partners not constituting an assignment, and being inconsistent with the intention to assign the original contract, it is plain that the petition states no cause of action by plaintiff in his own right against the defendant corporation.

The right of plaintiff to sue as a partner upon the same contract between the copartnership and the corporation which he now sues on as assignee making his copartners defendants under section 1733, Revised Stat

Immediately upon the execution of the contract sued on, the partnership, by its collective name, made the contract with the plaintiff which is charged in the petition to be an assignment of the contract with the defendant corporation. It assumed as a partner-utes 1909, would present a more difficult quesship all the obligation assumed by the corporation in the former contract, except that whereas the corporation had agreed to pay 68 cents per cubic yard for the ballast, the partnership agreed to pay to plaintiff only 61.2 cents per yard. It required no bond. The meaning of this contract is the subject of contention in this suit. The plaintiff contends that it constituted an assignment to him of the first subcontract between the corporation and the partnership, for the consideration of 6.8 cents per yard, the difference in the two prices, and in his petition has grounded his right to recover entirely upon that theory. It is true that he charges that the defendant corporation knew that he was doing the work and dealt with him accordingly, but it is plain that this would have no other or greater effect than in case of any subcontractor. The suit is at law and not in equity, and it must stand upon the interpretation of these two contracts as they were written.

Applying the words of this instrument to the conditions as we have stated them, they construe themselves. The partnership had a

tion (Ryan v. Riddle, 78 Mo. 521; Clark v. Railroad, 219 Mo. loc. cit. 537, 118 S. W. 40 et. seq.), upon which we are not now called upon to express any opinion. Even did the petition state a cause of action in behalf of the partnership, which it does not, it is doubtful if the plaintiff, having dismissed as to one of his partners who failed to plead, could further maintain it. His cause of action upon that theory would be a joint one, to which all would be indispensable parties, because all would have a voice in determining whether the suit should be instituted and maintained or not (Gilmore on Partnership, p. 364 et seq.), as well as a common interest in its subject-matter. We do not express an opinion on these questions because they are not presented by this appeal.

For the reasons stated the judgment of the circuit court is affirmed.

RAILEY, C., not sitting.

PER CURIAM. The foregoing opinion of BROWN, C., is adopted as the opinion of the court. All concur; BOND, P. J., in result only.

JONES v. JONES et al. (No. 12664.)
(Kansas City Court of Appeals. Missouri.
Jan. 28, 1918.)

1. GIFTS 29-CORPORATION STOCK-DELIV-
ERY REQUISITES.
It is not a sufficient delivery of stock for a
party merely to have the stock transferred to
the name of the donee, but in addition to this
an actual or constructive delivery of the stock
to the donee must be shown.

2. GIFTS 47(1)-CORPORATION STOCK-DE-
LIVERY REQUISITES-PRESUMPTIONS.

for five more shares and placed them on the books of the bank in the name of his son, Elliott Jones, and also had them made out in the name of Elliott Jones. Afterwards A.

G. Jones bought two more shares of Dr. Tiffan and had them placed in the name of his said son, Elliott Jones, and had them transferred to his son and put in the latter's name on the books of the bank. Some time after these occurrences A. G. Jones, as president of the bank, sent written notices to all of the stockholders of the bank notifying them of the annual meeting of the stockholders to

The law will raise a presumption of a gift from parent to child from circumstances where it would not be presumed between strangers. 3. GIFTS 50 CORPORATION STOCK-DELIV-elect officers, etc., and one of these notices ERY-REQUISITES-QUESTIONS FOR JURY. Where a father had shares of stock issued to his son on the books, and mailed him notice of a stockholders' meeting, his retaining the stock and attempting to vote it in his son's absence, without a proxy, did not show as a matter of law that there was no delivery. 4. APPEAL AND ERROR 999(1) VERDICT ON FACT QUESTION. Where the evidence raised an issue of fact, the court on appeal cannot review the verdict thereon.

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SCOPE

ACCEPTANCE PRESUMP

Where a gift is entirely beneficial to the donee, his acceptance of it will ordinarily be presumed unless the contrary appears. 6. WITNESSES 145-COMPETENCY.

In replevin by administratrix and wife of deceased in whose name stock stood, against the wife and administratrix of deceased's father, the plaintiff was not "incompetent under the statute for any purpose.'

7. APPEAL AND ERROR 690(4) RECORD-SUFFICIENCY.

SCOPE

Where an exhibit alleged to have been erroneously admitted was not set out in the abstract of record, the court on appeal could not review its admission.

was mailed to and received by his son, Elliott Jones. A. G. Jones attempted to vote the seven shares in the name of Elliott Jones at a meeting of the stockholders, but for the reason that he had no proxy from Elliott Jones the other stockholders refused to permit him to do so. These seven certificates of stock in the name of Elliott Jones were kept in the private bank box of A. G. Jones at Hamilton, Mo. The evidence does not disclose what arrangements, if any, as to this stock existed between Dr. Jones and his son, Elliott H. Jones.

In the month of August, 1914, A. G. Jones died and the defendant Maude Jones became Said defendant in the his administratrix. course of the administration of the estate found these seven shares in A. G. Jones' bank box and she took possession of them and inventoried them as assets of the estate of A. G. Jones, deceased. In the year 1914 Elliott Jones also died and the plaintiff, Ada Jones, was appointed administratrix of his estate and demanded of the defendant

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

"Not to be officially published."

Replevin by Ada Jones, as administratrix of the estate of Elliott Jones, deceased, against Maude Jones, as administratrix of the estate of A. G. Jones, deceased, and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Scott J. Miller, of Chillicothe, and Lewis W. Reed, of Breckenridge, for appellants. Frank Sheetz and S. L. Sheetz, both of Chillicothe, for respondent.

BLAND, J. This is a suit in replevin to obtain possession of seven shares of bank stock. After the controversy arose, the stock, by agreement of the parties, was sold and the money realized therefrom was by said agreement to take the place of the stock.

Some years prior to the filing of this suit A. G. Jones and some others organized a bank in the town of Hamilton, Mo., and it was agreed among the stockholders that none should be permitted to own more than ten shares of the capital stock. A. G. Jones took ten shares in his own name and paid

said seven shares of stock as assets of the estate of Elliott Jones, deceased, but said defendant refused and this suit in replevin was brought. A trial before the court resulted in a judgment in favor of plaintiff, and defendants have appealed.

Defendants make the point that a demurrer to the evidence should have been sustained for the reason, as defendants say, that there was no delivery of the stock in the lifetime of A. G. Jones to Elliott H. Jones. It has been suggested that A. G. Jones placed the seven shares of stock in the name of his son in order to circumvent his agreement with the other stockholders that each should only have ten shares of There is no direct evidence on this stock. point; the suggestion rests upon inference only; and as the court found for the plaintiff this issue had been decided against the defendants.

[1-4] As to the matter as to whether there was a consummated gift by A. G. Jones to his son, the rule of law is that it is not a sufficient delivery of stock for a party to merely have the stock transferred to the name of the transferee, but in addition to

We have carefully examined the other points raised by defendants as to the admission of testimony, and find that the court did not err in its rulings in reference thereto. The judgment is affirmed. All concur.

CITY OF HIGBEE v. BURGIN. (No. 12398.)
(Kansas City Court of Appeals. Missouri.
Dec. 3, 1917.)

FooD 3-ORDINANCES-POWER TO EXACT
LICENSE "PRODUCE" "AGRICULTURAL
PRODUCTS."

Under Rev. St. 1909, § 9516, providing that no city shall have power to levy or collect a license fee from any farmer for the sale of "produce" raised by him when sold from his wagon, and section 10282, providing for licensing certain occupations, but excluding from its operation persons dealing in "agricultural products," defendant farmer who sold from his made from hogs raised and butchered by him wagon in plaintiff city spareribs and sausages could not be punished for selling meat without a license contrary to ordinance; he being a vendor of "produce" within section 9516.

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. 11; Gray v. Doubikin, 188 Mo. App. 667, 176 S. W. 514. However, we think there was other evidence strongly tending to show that Dr. Jones delivered this stock to his son. In 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, 30 N. J. Law, loc. cit. 158; Love v. Francis, 63 Mich. 181, 29 N. W. 843, 6 Am. St. Rep. 290; 14 Amer. & Eng. Encyc. of Law (2d Ed.) 1035. It seems to us that the retention of the shares of stock by Dr. Jones, under the facts in this case, does not show as a matter of law that it was not his intention to part with them, for if this was his intention, why did he mail a notice of the stockholders' meeting to his son? If he considered that the stock was his own and not his son's, he would not have treated the stock as his son's by mailing to the latter a notice of the stockholders' meeting. While he attempted to vote the stock without a proxy from his son, this does not conclusively show that he considered the stock as his own. It is not uncommon for people to vote stock of relatives without exhibiting a proxy although such vote could not be counted if challenged. The court sitting as a jury passed upon this question, and we do not think that we may review his action, as the evidence on the point raised an issue of fact. [5] While there is no evidence that Elliott H. Jones did anything to show an acceptance of the stock on his part (unless such acceptance is so shown by the receipt of the notice of the stockholders' meeting by him without any action thereon), nevertheless, it is a rule of law that where a gift is entirely beneficial to the donee, his acceptance of it will ordinarily be presumed, unless the contrary appears. 14 Amer. & Eng. Encyc. of Law (2d Ed.) 1027. We do not believe that we may review the action of the court in finding as a fact that the gift was actually accepted.

[6] Defendants urge that the court erred in permiting plaintiff to testify as a witness. When plaintiff was offered as a witness the defendants objected to her testifying on the ground that "she was incompetent to testify under the statute for any purpose." This objection was overruled and properly so. Weiermueller v. Scullin, 203 Mo. 466, 101 S. W. 1088, and cases therein cited; Gray v. Doubikin, supra. There is nothing in the case of Brown v. Patterson, 224 Mo. 639, 124 S. W. 1, to the contrary.

[7] Defendants claim that the court erred in admitting in evidence Exhibit C. As the exhibit is not set out in the abstract of record we are unable to pass upon this point. Lumber Co. v. Rogers, 145 Mo. 445, 46 S. W.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Produce; First Series, Agricultural Product.]

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Prosecution by the City of Higbee against Charles Burgin for selling meat without a butcher's license. On a trial by the court there was a finding for defendant, and the City appeals. Affirmed.

Willard P. Cave, of Moberly, for appellant. F. E. Murrell, of Sapulpa, Okl., for respondent.

BLAND, J.

Defendant was prosecuted by appellant city for selling meat without a butcher's license contrary to an ordinance of the latter. On a trial by the court a finding for defendant was had and the city has appealed.

Defendant was a farmer and sold from his

wagon in appellant city, near which he lived, spareribs and sausage made from hogs raised and butchered by him. The sole question in the case is whether the things sold by defendant were "produce" within the meaning of section 9516, R. S. 1909. If they were, then defendant cannot be subjected to a license by the city. The section of the statute mentioned provides as follows:

"No incorporated city, town or village in this state shall have power to levy or collect any tax, license or fees from any farmer, or producer him, her or them, when sold from his, her or or producers, for the sale of produce raised by their wagon, cart or vehicle, or from any person or persons in the employ of such farmer or producer in any such city, town or village."

The word "produce" may have a variety of meanings dependent upon the connection in 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

"But the common parlance of the county, and the common practice of the country, have been to consider all those things as farming product or agricultural products which had the situs of their production upon the farm, and which were brought into condition for the uses of society by the labor of those engaged in agricultural pursuits, as contradistinguished from manufacturing or other industrial pursuits."

of a farmer the Court of Appeals of the Dis- and horticultural products, including milk, trict of Columbia said: butter, eggs, and cheese. It is urged by appellant that hog killing and dressing do not come within those things excluded by this statute from its operation, and that, therefore, this defendant is a peddler under the provision of that statute, and not a vender of farm produce under section 9516, supra. The Supreme Court has held that section 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 of this case. Under the definition given it seems to us beyond question that the pursuit undertaken by defendant was that of vending "produce" within the meaning of our statute, supra. The meat being sold by defendant this could not be the case is that appellant was raised and brought into use for human consumption on the farm by the defendant who was engaged in agricultural pursuits and was, therefore, farm produce. See Fitch v. City of Madison, 24 Ind. 425.

We are unable to see how it can be said that fresh meats do not come within the definition of agricultural products as that term is used in section 10282 of the statute. The only suggestion made by appellant as to why

says that fresh meat is more easily contaminated, and that it more easily spoils than ordinary agricultural products. We are not prepared to say as to the correctness of the statement in reference to the perishable qualities of fresh meat, nor can we see what difference the proposition, if true, would make. The license ordinance we have under consideration has nothing to do with the right of the city to enact sanitary regulations.

From what we have said defendant was not subject to appellant's license ordinance, and the judgment will be affirmed. All concur.

SHUCK V. SECURITY REALTY CO. (No. 12767.)

(Kansas City Court of Appeals. Missouri. Feb. 18, 1918.)

1. NEGLIGENCE ~66(2) EVIDENCE - CONTRIBUTORY NEGLIGENCE.

A cement construction company's employé, who went to repair an outside curb at a new building on which he had worked some days before, and, in looking for water, went down a dark stairway well without a light, and fell, there being no handrail, was grossly negligent and could not recover; having built the stairway himself, and having known that there was no rail a few days before.

It has been suggested that the American people are a very versatile one, and that by reason of this attribute the farmer has sometimes been his own manufacturer to a large extent, and in this connection it is said that the killing and dressing of beef or hogs by farmers is not an agricultural pursuit, but one of slaughtering or slaughterhouse operation. Mayor v. Davis, 6 Watts & S. (Pa.) 279. While the distinction between agricultural pursuits and those of an artisan or manufacturer is not an easy one in all cases, we cannot see why the killing and dressing by the farmer of fresh meat raised by him can be said to be any more the work of a ⚫ manufacturer or an artisan than the killing and dressing of poultry. The raising, killing, and dressing of the latter has become one of the greatest industries of agricultural America. If, instead of selling the sausage and spareribs of the hogs, defendant had sold the lard rendered from their fat, could it be said that the lard was not "farm produce"? or would it do to say that when a farmer is making his butter and cheese he is engaged in the creamery business? We think not. Similar comparisons could be made ad infinitum. Whatever might have been said in the beginning as to the farmer being engaged in the pursuit of slaughtering, slaughterhouse operation or meat packing, when he butchered stock raised on his farm, such as the hogs involved in this case, the usages and practices of generations on American farms has in this day made such a practice one of agriculture or farming. However, it is insisted that the Legislature has by another enactment manifested a policy as to the character of business in which defendant is engaged in section 10282, R. S. 1909. This section 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 agricultural personal injury received by him by falling

2. NEGLIGENCE 32(3) — INVITEES — LICEN

SEES.

Where a building owner requested a conits employé, who went into an open stair well struction company to repair an outside curb, while going to the basement for water, which he might have secured elsewhere, exceeded the bounds of the invitation and was a mere licensee.

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

Action by E. D. Shuck against the Security Realty Company. Judgment for defendant after demurrer to the evidence was sustained, and plaintiff appeals. Affirmed.

Atwood, Wickersham, Hill & Popham, of Kansas City, for appellant. Lathrop, Morrow, Fox & Moore, of Kansas City, for respondent.

down a "well hole" around which a stairway to a building was constructed. The trial court sustained a demurrer to the evidence, and judgment was rendered for defendant.

That is, he chose, in utter darkness, to risk finding a handrail which he did not know was there, and which was not there when he left the building 10 or 12 days previous, instead of following the wall.

[1] But, aside from this, the consideration of his failing to follow the wall and feel with his feet for the top step leads one to ask how any man, in his senses, could have attempted to find the steps in an unfinished building in "pitch darkness," without taking the precaution to get a light, a match, if nothing else. It is not to be accounted for except on the ground of the grossest carelessness.

The defendant, Security Realty Company, was the general contractor for the erection of a large building, and it sublet the entire work; different parts to different contractors. The Crosby Construction Company was one of these; having the entire concrete work, including sidewalk and curbing. Plaintiff worked for the latter company and put in the stairway here involved, as the foreman for such company. It was a cement stairway. Plaintiff numberless times was up 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 puraway, 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 after he had left the building, a small portion of the curbing to the sidewalk had been knocked off, or had crumbled, and the Crosby Company was asked by the Williams Company, the owner, to fix it. That company requested plaintiff to do so. He went to the building with his bucket and trowel, but did not take any material, though he knew the Crosby Company under the contract were to furnish material. He found some cement and sand and then began to look for water. He asked some men who were laying floors and they informed him that the water "had been cut off." He then went to the rear of the building where he had formerly got water for his work, but did not succeed in getting any, as the key to the faucet was not there. He then concluded to try in the basement, though he had never gotten any there when at work on the building and did not know whether he would find any. He went to the stairway that he had built. He testified that "it was pitch-dark in there;" that "iting. was pitch-black in there." He had used torches as lights when he worked there before, but had none at this time. He felt in his pocket for a match and found none, but, instead of turning back for a light, he went on towards the steps without even taking the precaution to follow the wall with his hand, and walked into the hole. At this point in his testimony, plaintiff was not as candid as he might have been. When being reminded on cross-examination that he might have followed the wall with his hand and gotten down the steps in safety, he said he did not know that he could; that he might have overbalanced and that he might have stumbled. But finally he admitted he could have gotten down by that course, and then stated that:

"It is just as natural to me to go to the handrail, and while feeling for the handrail to guard against falling down the stairs, I stepped off into the opening."

[2] The Williams Realty Company, the owner, was the party who requested the Crosby Company to send some one to fix the injured place in the curbing, and that company sent plaintiff, who, as we have said, took his bucket and trowel and went there. The Williams Company was discharged at the close of the evidence by direction of the court, and plaintiff concedes in his statement here that this action of the court was proper. But if the Security Company, defendant, had sent the same invitation the evidence shows that it was not an invitation to go into the building, but to fix a very small injury to the curbing on the sidewalk. Nor was there anything to show that it was neces sary that plaintiff go to the basement for water as alleged in the petition. He might have gotten water at many places elsewhere. He started to the basement of his own choice, without endeavoring to get a key to the faucet, and, as stated above, he had never gone there for water when he worked on the buildWhen an invitee steps beyond the bounds of his invitation, he becomes, at most, a mere licensee. Menteer v. Scalzo Fruit Co., 240 Mo. 177, 183, 144 S. W. S33. See, also, Carr v. Railroad, 195 Mo. 214, 226, 92 S. W. 874, and Shaw v. Goldman, 116 Mo. App. 332, 92 S. W. 165.

There was no evidence that the Security Company, the present defendant, had any thing to do with the request. It may be that if the Williams Realty Company, as owners, had demanded of defendant, Security Company, that the curbing be repaired, it would have denied any obligation to do so and refused to request the Crosby Company to make it. So that we think plaintiff failed to show that he was defendant's invitee, and he can find no aid from that source.

It, however, is not worth while to discuss that phase of the case, since it is too plain for argument that plaintiff, whether invitee

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