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or licensee, was so clearly guilty of contribu-, plaintiff should deliver his deed (with the tory negligence as to leave him without legal name of the grantee omitted) to defendant standing.

Scott so that he might take it to Iowa and The judgment is affirmed. All concur. there close a deal he had with a man named

Muntz by inserting Muntz's name as grantee in said deed, and defendant's deeds to the

la plaintiff was to get in exchange for his FRISBIE v. SCOTT et al. (No. 12753.)

were deposited in escrow with the Missouri (Kansas City Court of Appeals. Missouri.

Savings Bank to be delivered to plaintiff if March 4, 1918.)

the Iowa deal went through. Among these 1. APPEAL AND ERROR 854(6)—REVIEW, deeds so deposited was one from G. 0. StansSETTING ASIDE VERDICT-REASONS.

Where on motion for new trial the court sets bury to the two sections of Texas land. The aside a verdict without stating reasons therefor, Iowa deal went through and plaintiff's deed his action will be affirmed if any of the grounds to the Colorado land was delivered by destated in the motion are sufficient.

fendant to Muntz and the bank delivered to 2. APPEAL AND ERROR W979(1)-GRANTING plaintiff the deeds held in escrow by it. The NEW TRIAL-REVIEW.

Where there is any dispute in the evidence, plaintiff acknowledged, in writing, and also the granting of a new trial on the ground that in th testimony, that he accepted said deeds the verdict is against the weight of the evidence in performance of the exchange contract, will not be disturbed.

among them being the Stansbury deed as 3. DEEDS Ow94—MERGER OF PREVIOUS CON- aforesaid. This deed contained the usual TRACT-COVENANTS.

Where there is a contract for a warranty warranty clause whereby Stansbury agreed to deed, the acceptance of a warranty deed from a "warrant and forever defend” the title to the third party remits the acceptor to his covenants | Texas land to plaintiff "against every person in his deed, and he cannot recover on the con- lawfully claiming or to claim” said land or tract on account of failure of title by reason of a forged deed in the chain of title, in the any part thereof. absence of fraud or mistake.

The abstract to the Texas land showed in

the chain of title a deed dated January 30, Appeal from Circuit Court, Jackson Coun

1913, from Henry W. Rokker to S. A. Jones ty; Wm. 0. Thomas, Judge. Suit by Alvin C. Frisbie against F. E. and next a deed from Jones to Stansbury.

And the abstract showed an apparently good Scott and Leon H. Schwald. Verdict for

title in Stansbury, so that a deed from him plaintiff. From an order setting aside the verdict on motion for new trial, plaintiff ap- put the title in him.

to plaintiff, when delivered, would seem to peals. Affirmed.

Very shortly after the exchange, however, Ed E. Aleshire, of Kansas City, for appel- it was discovered that the deed from Roklant. Robert 0. McLin, of Kansas City, for ker to Jones was a forgery, and was so derespondent.

clared to be by a decree of the proper Tex

as court. Since the deed purporting to be TRIMBLE, J. Plaintiff entered into a from Rokker (the owner) to Jones was written contract with the defendant Scott forgery, the deed from Jones to Stansbury whereby each agreed “to convey or cause to conveyed no title, and hence Stansbury's deed be conveyed by good and sufficient warranty i to plaintiff was worthless and conveyed no deed” to the other or to his order different title. Therefore, under the exchange conlands variously located, all of which were | tract, plaintiff got no title to the Texas lands specified in Schedules A and B attached to and lost the value thereof. said contract; the former containing lands in He brought this suit against Scott and the Colorado belonging to plaintiff, and the latter defendant Schwald, who was in fact internaming lands in Kansas City, in Ripley coun- ested with Scott in said exchange contract, ty, Mo., and in Texas, which the defendant though not signing it. The petition was origiwas to convey or cause to be conveyed to nally in two counts; the first setting up the plaintiff in exchange for his lands. The Tex- exchange contract and the warranty in the as lands consisted of two specified sections in Stansbury deed, and apparently attempts to Brewster county; and it is with reference to hold defendants on the covenant of warranty these two sections, or the failure of title in said deed on the theory that, by virtue of thereto, that this lawsuit is concerned. Each the contract, Stansbury's deed was their deed party to the contract was to furnish to the and his covenant their covenant. In the secother "full and complete abstracts of title, ond count no mention was made of the covewith the necessary certificates," etc. This nant in the deed, but the cause of action was was done, and plaintiff's attorney examined based alone upon the violation of the conthe title to the lands he was expecting to get. tract. The lands defendant was to convey or cause At the close of all the evidence plaintiff disto be conveyed to plaintiff were not owned by missed the second count. The court overruled him, but stood in the name of various parties, defendants' demurrer and the case went to and plaintiff knew of this fact.

a

the jury; the plaintiff obtaining a verdict for By certain modifications of the contract, $2,560 and interest from date of suit. This not necessary to explain, it was agreed that the trial court, on motion for new trial, set

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

201 S.W.-36

aside without giving his reason for so doing. there be no ingredient of fraud, or mistake in Thereupon plaintiff appealed.

the case, and the party has not taken the pre[1, 2] If any one of the various grounds caution to secure himself by covenants, he has

no remedy for his money, even on failure of stated in the motion for new trial are suffi-title." cient, this would justify us in affirming the

And in Moyer v. Shoemaker, 5 Barb. (N. judgment. Among these grounds is one that Y.) 319, 321, it is said: the "verdict is against the weight of the evi

"It is also a general rule that, while there is dence," and since we do not know what an open covenant of warranty, the remedy of ground the court acted upon this may have the party must be confined to that." been the one. And if there is any dispute See, also, Davidson V. Manson, 146 Mo. in the evidence as to a material element in 608, 619, 620, 48 S. W. 635; Corrough v. the case, this would require us to sustain the Hamill, 110 Mo. App. 53, 84 S. W. 96; Herrytrial court's action. There is a very decided ford v. Turner, 67 Mo. 296. conflict in the evidence affecting the measure We are unable to see how the covenant of of damages which plaintiff claims to be the Stansbury in the deed, combined with decorrect measure to be upheld. Hence we fendant's contract to “convey or cause to be might very well affirm the judgment on this conveyed by good and sufficient warranty point alone.

deed," can enable plaintiff to hold defendHowever, it is asserted by plaintiff in the ants, in the absence of fraud or mistake. brief, and, in a way, though not as specifically Plaintiff, by accepting the Stansbury deed. as might be desired, admitted by defendants agreed to receive the covenant of Stansbury that the real reason the court set aside the in the place of defendants' covenant; and if verdict was because he thought the petition the executory contract to exchange lands be. stated no cause of action and that plaintiff came functus officio upon the mutual delivery was not entitled to obtain any recovery. of the deeds, it would seem that it became Hence we ought to dispose of this question, as much functus officio for the purpose of tyas it will affect matters arising hereafter. ing defendants on to the covenant in Stans

[3] There was no charge of mistake, nor bury's deed as for any other purpose. was there any evidence of fraud or deceit on Nor can it be said that the contract is still the part of defendants. If plaintiff's first alive because it has never yet been performcount is a suit upon the covenant in the ed as to the Texas land, since the contract Stansbury deed, plaintiff's cause of action was to convey or cause to be conveyed by does not and cannot rest upon it alone, since good and sufficient warranty deed, and the the defendants did not sign the deed nor are deed from Stansbury conveyed no title, and they parties to it. The only way they can therefore plaintiff can still sue for the dambe connected with it, if at all, is by virtue of ages caused by the failure to perform that the exchange contract. But

part of the contract. The deed from Stars“contracts for the sale of land are in their na-bury to plaintiff was a genuine deed, and ture executory, and generally, the acceptance of was a conveyance by good and sufficient war. a deed in pursuance of their stipulations is prima facie an execution of the contract, and ranty deed so far as Stansbury was concernthe agreement thereby becomes void and of no ed. It was sufficient to convey whatever title further effect." Bull v. Willard, 9 Barb. (N. he had. The only trouble is there was a deY.) 641 loc. cit. 644.

fect in his title owing to a forged deed in the On the next page the same authority says: prior chain of deeds to him. In Bull v. Wil

“The prima facie presumption of law, arising lard, supra, 9 Barb. (N. Y.) at page 645, the from the acceptance of the deed is that it is an court, in speaking of how to determine execution of the whole contract, and the rights whether covenants contained in the agreeand remedies of the parties, in relation to the contract, are to be determined by the deed, and ment for the sale of land are collateral to the original agreement becomes void."

those involved in the execution of the deed, It may be well to observe here that in the or are so connected with it as to be at an case at bar there is nothing tending in the end and become merged or satisfied in the remotest way to show that there were cove execution of the deed, said: nants in the contract collateral to the deeds

“I have not been able to fix upon a better to be delivered, and hence nothing to attack criterion, upon that question, than that the cove

nant, in order to be deemed collateral and indeor destroy the prima facie effect of the un- pendent, so as not to be destroyed by the execuconditional acceptance of Stansbury's deed tion of the deed, must not look to, or be connectunder the contract. In Slocum v. Bracy, 55 ed with the title, possession, quantity, or embleMinn. 249, loc. cit. 252, 56 N. W. 826, 827 contract; and that if it does so, the execution

ments of the land which is the subject of the (43 Am. St. Rep. 499), it is said:

of the deed, in pursuance of the contract. will "No rule of law is better settled than that, operate as an extinguishment of it.” (Italics where a deed has been executed and accepted as ours.) performance of an executory contract to convey real estate, the contract is functus officio, and chain was a mere defect in the title to said

So that the fact of a forged deed in the the rights of the parties rest thereafter solely on the deed. This is so although the deed thus land, and did not constitute a nonperformaccepted varies from that stipulated for in ance of the contract so as to leave it upperthe contract, as where the vendee accepts the formed and with vitality sufficient to supdeed of a third party in lieu of the deed of his vendor; and as, in the sales of land, the law re- port a cause of action for nonperformance. mits the party to his covenants in his deed, if This might be the case had Stansbury's deed

DENCE.

to plaintiff been a forgery, for then that, to defendant's agent at Kansas City, Mo., as which plaintiff accepted as a deed would to the value, age, and condition of said stock; have been in reality no deed at all. In that that said cows were only worth $35 per head event, too, doubtless fraud would have en- instead of $60 as represented by plaintiff; tered into the case so as to change the en- | that they were so thin they were not in a fit tire legal situation.

condition to ship; by reason of all of which We are unable to see how, in the absence said policy was void. The answer further alof fraud or mistake, plaintiff has any right leged that the cattle were delayed for four of recovery against the defendants, either on days by the civil authorities at the Kansas the covenant in the deed or on the contract, City stockyards for inspection, and that five and hence affirm the judgment for that rea- of them died while in the possession and unson as well as for the other mentioned. The der the control of said civil authorities. other Judges concur.

(The policy did not cover the stock while so detained.) The reply admitted that the state

ments were made by plaintiff to the defendESTES V. HARTFORD FIRE INS. CO. ant's representative at Kansas City, but al(No. 12434.)

leged that said statements were true, and de(Kansas City Court of Appeals. Missouri.

nied the other allegations of the answer. Dec. 31, 1917.)

The evidence shows that plaintiff was a 1. INSURANCE 426 TRANSPORTATION IN

resident of Boone county, Mo., and engaged SURANCE-CATTLE-INJURY IN TRANSIT. in the farming and live stock business; that

The fact that cattle died in stockyards dur- on February 19, 1916, he owned 69 cows ing very cold weather did not affect the liability which were on a ranch near Virgil, Kan., and of a transportation insurer, where the cattle died as the result of injuries received in transit. that he desired to transport said cattle to 2. TRIAL @w260(1)-INSTRUCTIONS_REQUESTS Hartsburg, Mo.; that before shipping them he -REPETITION.

visited defendant's agent at the stockyards A requested instruction, covering a matter in Kansas City and procured the policy sued already fully covered by another instruction giv- on, paying the premium therefor. The cattle en by the court, was properly refused. 3. APPEAL AND ERROR Oma 692(1) - RECORD

were loaded by plaintiff's agent at Virgil, QUESTION REVIEWABLE-EXCLUSION OF Evi- Kan., and billed to Hartsburg, Mo. Plaintiff's

evidence tended to show that after the cows Where a certain memorandum is not shown were loaded at Virgil the locomotive was in the abstract of record, the Court of Appeals backed against the train with such violence cannot pass on the question as to whether the that five of the cows were knocked down in trial court erred in excluding it. 4. INSURANCE O 658 TRANSPORTATION IN- the car; that when the cows reached the SURANCE-CATTLE-EVIDENCE.

stockyards at Kansas City two of them were In an action against a transportation in- down at the chutes and had to be carried out, surer for injuries to cattle in transit, evidence that hair was found to have been rubbed off the and that the third was down with what catcattle on their arrival was admissible, where tlemen call “split legs"; that all three of plaintiff's counsel stated they offered the testi- these cows died in the pen as the result of inmony to show the condition of the cattle, not juries received during transit from Virgil, because they were suing for the value of the Kan., to Kansas City, Mo.; that four other hair.

cows were badly bruised and that the bruises Appeal from Circuit Court, Boone County ; | looked like the animals had hooked one anD. H. Harris, Judge.

other. (They were horned cattle.) A veteri"Not to be officially published.”

nary held a post mortem examination of plainSuit by A. J. Estes against the Hartford tiff's dead cattle at the stockyards in KanFire Insurance Company. From a judgment sas City and it was discovered by his assisfor plaintiff, defendant appeals. Affirmed.

tant that two of the same had two broken Gillespy & Conley, of Columbia, and P. A. ribs each and that the third had numerous Wells, of Omaha, Neb., for appellant. N. T. bruises. This assistant veterinary decided Gentry, of Columbia, for respondent.

that the cattle had suffered on account of ex

posure to the weather, and that they might BLAND, J. This is a suit on a policy of have been injured by a rough handling of transportation insurance covering injury to the train, and a tramping and hooking of certain cows while in transit, which were to one another after they were down. He found be shipped from Virgil, Kan., to Hartsburg, no sign of any disease in any of the cattle; Mo., via Kansas City. A trial before a jury the cows had just passed the tuberculin test. resulted in a verdict for plaintiff in the sum The cows were detained two days by governof $320, and defendant has appealed. ment inspectors at Kansas City and were

There were 69 cows covered and shipped, 8 then shipped to Hartsburg, Mo. When they of which were injured and died as the result arrived at the latter place two of the cattle thereof. The petition alleged that the value were found down in the car, sore, stiff, and of the cows was $60 each. The answer admit- bruised; plaintiff's agent was unable to get ted the execution of the policy sued on, but them any further than the lot near the railalleged it was executed because of false and road station, and five of the cows died there fraudulent representations made by plaintiff / within a short time.

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Defendant complains of the action of the cars were not "half bedded," and that there court in refusing to instruct the jury to find was sleet and snow in them, and that there. for it. There was evidence tending to show after the agent threw some sand in on the that the cattle were not worth the amount snow, but there is no evidence that these con. of money, to wit, $50 or $60 each, as represent. ditions were the proximate cause of the ined by plaintiff to defendant's agent at Kansas jury, or, in fact, had anything to do with the City when the policy was issued. And in this injury and death of the stock. It is therefore connection defendant points to plaintiff's evi- unnecessary to say whether the policy cor. dence to the effect that the cows after ar- ered a loss contributed to by plaintiff's negliriving at Hartsburg were grass and hay fed gence. and shipped to St. Louis and sold as canners [2] Defendant complains of the refusal by for a little less then $40 per head. There was the court of its instruction D. This instruc no evidence as to how long a time elapsed be- tion attempted to cover the defense of mis. tween the arrival of the cattle at Hartsburg representation by plaintiff to defendant's and their sale in St. Louis, or as to whether agent as to the condition of the stock at the the market had declined during said time. time of the writing of the insurance. This The evidence shows that when the cattle were matter was fully covered by defendant's in. shipped to St. Louis they had not recovered struction No. 1, which was given by the court. from injuries received by several of them [3] Defendant complains of the action of during transit from Virgil, Kan., to Harts- the court in refusing to permit the introducburg, and at least one of them was a cripple. tion in evidence of a memorandum said to However, plaintiff introduced three witness- have been made by its agent and containing es as to the value of the cows when shipped to matters represented to him by plaintiff at Hartsburg; one of these testified their value the time of the writing of the insurance. to be $55; another $60 a head; and another This memorandum is not shown in the ab. from $50 to $60 per head. This made an issue stract of record, and for that reason we are for the jury to determine, and the jury hav- unable to pass upon the question as to whething found for the plaintiff, its finding is bind-er the court erred in refusing to admit the ing upon this court.

same in evidence. Lumber Co. v. Rogers, 145 Defendant introduced one witness who tes- Mo. 445, 46 S. W. 1079; Gentry v. Field, 143 tified that the cattle were so emaciated at Mo. loc. cit. 409, 45 S. W. 286. Virgil, Kan., that they were not in a fit con- [4] Defendant complains of testimony addition to ship. However, plaintiff introduced mitted over its objection to the effect that several witnesses on this point; one of whom hair was found to have been rubbed off of testified that the cows were in about such the cattle upon their arrival at Hartsburg, condition as those usually receivell in Feb- Mo. The objection to this testimony was ruary at the Kansas City stockyards; an- based upon the ground that the policy did not other testified that the cows were not any cover "the loss of a little hair." However, thing out of the ordinary and were "only just plaintiff's counsel at the time stated that thin stock cows," such as seen at the Kan- they were not suing for the value of the sas City stockyards. Plaintiff testified that hair, but offered the testimony to show the he told defendant's agent when taking out the condition of the cattle. Under such circuminsurance that the stock were “breeding cows stances the testimony was, of course, admisthat suckled calves this last year,” and he sible, testified that:" I had already shipped them The judgment is affirmed. All concur. 600 miles three months before this, after they had had their calves and weaned them. I never lost one of them." Plaintiff also introduced evidence tending to show that the cat- HATFIELD v. WATSON et al. (No. 14755.) tle were of the weight represented by him to (St. Louis Court of Appeals. Missouri. March

5, 1918.) defendant's agent at the time of the issuance of the insurance. As to the condition of the 1. JUSTICES OF THE PEACE 157(4)—AFFIDAcows at the time the insurance was written

VIT FOB APPEAL-AMENDMENT.

Where the justice's docket showed that de there was conflicting evidence, which was set- fendants had filed the statutory affidavit for tled by the jury in plaintiff's favor.

appeal,"being first duly sworn, and the affi[1] There was evidence that the weather davit itself was sufficient, but merely lacked the was very cold during the time the cows were permitted appellants, before motion to dismiss

jurat of the justice, the trial court properly at the Kansas City Stockyards, but there was had been determined, to file an amended affidavit. no evidence that anything happened to them in view of Rev. St. 1909, $ 7580, providing that during that time that contributed to their no appeal allowed by a justice shall be dismiss

ed because the affidavit is defective or insuffideath. Of course, the fact that they died dur-cient, if appellants before the motion to dismiss ing that time would not affect defendant's is determined file the required affidavit. liability, as it was shown that they died as 2. JUSTICES OF THE PEACE 139(3)– APPEAL the result of injuries received in transit.

BOND-SUFFICIENCY. There is some evidence that plaintiff's Debtor to H. in McDonald Case, J. R. Palmer,

A suit based on memorandum entitled "W., agent at Virgil, Kan., complained to the Trustee," was against W. alone, so that appeal local agent of the railroad company that the l bond signed by him alone was not defective.

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3. JUSTICES OF THE PEACE @w156-APPEAL, the circuit court, among other things recites REQUIREMENTS.

that a judgment by default was entered in Where the transcript filed by the justice in the circuit court showed that the bond and affi- / favor of plaintiff and against defendants on davit required by statute were duly filed and de- | the 25th day of December, 1913, in the sum posited with the justice in due time, and the of $166.72 and costs, and onjustice did in point of fact return such appeal “December 26, 1913, come defendants F. H. to the circuit court, the circuit court had ju- Watson and J. R. Palmer and file their affirisdiction, though no actual allowance of apo davit and recognizance in appeal, being first peal appeared in record of justice, in view of duly sworn, state that this application for an Rev. St. 1909, $ 7574, providing that in all cases when the bond and affidavit required shall have appeal is from the merits of the cause and not been filed or deposited with the justice in due for vexation or delay, but because they believe time and the justice shall have returned such the appellants are injured by the judgment of appeal to the appellate court the same shall be the justice. And recognizance in the sum of considered as having been allowed by the jus- $400, signed by the defendants and E. S. Morris tice, although no entry thereof appears in the is approved by the justice. All papers in full record.

relating to this cause are this day, with a true

copy of the docket, forwarded to the circuit clerk Appeal from Circuit Court, Lincoln Coun- of Lincoln county, at Troy, Mo., December 26,

1913." ty; Edgar B. Woolfold, Judge. "Not to be officially published.”

[1] An examination of the affidavit for Action in justice court by J. D. Hatfield appeal shows that it is in statutory form and against F. H. Watson and another. There duly signed by Joseph R. Palmer, trustee, was judgment for plaintiff, but on appeal to and Frank H. Watson, but that the justice the circuit court defendants prevailed, where failed to sign the jurat thereto. The record upon plaintiff appeals. Affirmed.

shows, however, that on the 9th day of June, Sutton & Huston, of Troy, for appellant. where the appeal was pending and while a

1914, in the circuit court of Lincoln county, R. H. Norton and O. H. Avery, both of Troy, motion of plaintiff to dismiss the appeal J. R. Palmer, of Elsberry, and Creech & Penn, of Troy, for respondents.

on the ground that no affidavit for ap

peal was ever filed with the justice was BECKER, J. On December 25, 1913, plain pending, but before such motion to dismiss tiff recovered judgment in the sum of $166.72 had been determined, the defendants filed and costs before a justice of the peace in an

an amended affidavit for appeal, sufficient in action based on a statement or memorandum form, duly subscribed and sworn to before in the following form:

a notary public. With the fact before us

that an affidavit for appeal was filed in prop"Elsberry, Mo. 12/15/1913. “Frank Watson, Debtor to J. B. Hatfield in Mc- docket showing that the defendants had filed

er time and with an entry on the justice's Donald case, J. R. Palmer, Trustee. Cost first sale.

$ 19.45 the statutory affidavit, “being first duly Livery team to Troy and return.

3.50 sworn," and the affidavit for appeal itself Toll, 37c; two dinners 75c.

1.12 showing that it is sufficient in form and Cost first case.

14.50 Lawyer fee..

15.00

properly signed by the necessary parties and Advertising place, last sale.

10.15 merely lacking the jurat of the justice before Cost to compromise the case.

25.00 whom the affidavit was made, we hold there Rent of place from June 15, 1912, to

a sufficient compliance with section June 15, 1913, at $6.50 per month.... 78.00

7580, Revised Statutes of Missouri 1909, to

$166.72 warrant the learned trial court in permit"Upon the back of said statement appear ting the appellants to file their amended affithe following indorsements: 'Filed, Dec. 27, davit for appeal. Curtis v. Tyler, 90 Mo. 1913. Harry L. Welch, Circuit Clerk.' .Filed, App. 345; Ford v. Gray, 131 Mo. App. 240, December 15, 1913. Chas. S. Huckstep.'

110 S. W. 692; State ex rel. v. Garnett Min. When the case reached the circuit court Co., 169 Mo, App. 79, loc. cit. 89, 90, 154 S. W. on appeal the plaintiff filed a motion to dis- 168. miss for the reasons: That no affidavit for [2] As to the irregularity or defect in the an appeal or recognizance or bond for ap- recognizance or bond for appeal, the record peal, as required by statute, were ever filed shows that the bond is in due form required by the defendants or either of them with by statute, duly signed by Frank H. Watsaid justice and hecause no appeal was ever son, and in a more than twice the allowed. The motion was overruled, and amount of the judgment and costs appealed plaintiff standing on his motion to dismiss from. It is argued, however, that the bond the court thereupon dismissed said cause. is defective, in that it is signed by Watson After únavailing motions for new trial and alone and not by Joseph R. Palmer, trustee. in arrest of judgment plaintiff brings this ap- An examination of the statement filed before peal.

was

sum

the justice clearly shows that this point is The transcript of the entries made on the without merit. The case is clearly one in docket of the justice who originally heard which J. B. Hatfield is plaintiff and Frank H. the case, together with the process and other Watson is defendant; the statement is headpapers relating to the said cause and filed ed “Frank Watson, Debtor to J. B. Hatfield with said justice, all of which were filed in in MoDonald Case, J. R. Palmer, Trustee."

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