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sources at our command for a successful and profitable business on this publication. Respectfully yours, N. D. Thompson. Accepted: W. S. Bryan.'

erty, the said John Bermel was acting for and on behalf of said defendant, and that, if possession of the same was delivered to him, it was immediately, or within a few days thereafter, delivered to defendant. That both said John Bermel and said defendant had full notice of the agreement between plaintiff and said publishing company, as hereinbefore set out, and of plaintiff's interest in said publication and in said copyright, plates, dies, and other property. That the interest formerly held and owned by said publishing company in said copyright, plates, dies, book stock, and other property was sold and transferred to defendant, either directly by said James W. Graves, as trustee in bankruptcy, or by an intermediate transfer from said John Bermel. That defendant still has in its possession said original set of plates for said publication. That plaintiff has no knowledge or information sufficient to form a belief as to whether or not defendant still has in its possession said 3 sets of electro plates and dies for said publication and said 2,000 printed volumes of said publication, but plaintiff states that defendant either has the same in its possession or has sold the same and received the proceeds thereof. That said sets of plates, electro plates. and dies cost and are of the value of $30,000, and said 2,000 printed volumes were and are of the value of $2,500, and said copyright is of the value of more than $20,000. That said original set of plates, and such of said electro plates and dies and said printed books as are now in the possession of defendant, and the copyright for said publication, are owned by plaintiff and defendant jointly; plaintiff being entitled to an undivided one-third interest therein, and defendant to an undivided two-thirds interest therein. That, since defendant acquired the interest of said publishing company in said copyright, plates, dies, and other property, it has used the same in its business, and has continued to print, issue, and sell additional copies of said publication under said copyright printed from said dies and plates. That plaintiff does not know the amount of business so done by defendant or the number of copies of said publication so printed or sold by it. That the nature of the property hereinbefore described is such that partition in kind cannot be made thereof without great prejudice to the owners thereof.

That

"Plaintiff states: That he entered upon the performance of said agreement between himself and said publishing company, and fully complied with said agreement on his part. in pursuance of said agreement, said publishing company caused to be made certain plates, dies, and electros for the printing of said publication, and complied with the acts of Congress relating to copyrights, whereby said publishing company became entitled to the copyright for said publication, subject to the rights of plaintiff therein. That said publication was issued and printed and sold by said publishing company under the title of Our Islands and Their People, as Seen With Camera and Pencil.' That hundreds of thousands of volumes of said publication were issued, printed, and sold by said publishing company, and that it received from such sales about one million dollars. That in the year 1903 plaintiff instituted suit in the circuit court of the city of St. Louis against said publishing company for an accounting under said agreement, and to recover his share of the profits arising from said publication. That in said cause a judgment was rendered January 22, 1906, in favor of plaintiff and against said publishing company for the sum of $7,715.35, as plaintiff's share of the profits of said publication up to June 30, 1903.

"Plaintiff states: That in the year 1905 the said publishing company was duly adjudicated a bankrupt under the acts of Congress, and that James W. Graves was appointed trustee of its estate. That plaintiff duly exhibited and filed with the referee in bankruptcy his claim for the profits accruing due to him under said agreement for the production of said publication up to the date of the adjudication in bankruptcy, and said claim was duly allowed. That by said adjudication all the assets of said publishing company passed to the trustee appointed in said proceeding. That all of said assets remaining after cost of administration were distributed pro rata to creditors of said publishing company, and were insufficient to pay its proved indebtedness. That, since the date of the adjudication in bankruptcy, said publishing company has ceased doing business and has no assets. That, in the accounting between plaintiff and said publishing company to determine the amount due the plaintiff under the aforesaid agreement, upon which said judgment and the allowance in his favor were based, there was charged against the publication the entire cost of the plates, dies, electros, and the printed book stock on hand, up to the close of said accounting, and that the profits in which plaintiff was allowed to share, and for which he obtained said judgment and allowance, were determined after the deduction of all such charges. That the entire cost of said plates, dies, electros, and printed book stock and of obtain ing the copyright for said publication were paid out of the receipts from sales of said publication. That, in the administration of the estate of said publishing company in bankruptcy, the trustee thereof sold all the right, title, and interest of said bankrupt estate in and to the Copyright of said publication known as 'Our Islands and Their People,' and also in and to the said plates, dies, and electros intended for use in the publication of the same, and the said book stock on hand. That at the time of such sale there was in the possession of said trustee in bankruptcy one original set of plates complete, 3 sets of electro plates and dies complete, and 2.000 printed volumes of said publication. That the interest of said bankrupt estate in all of said property was sold to John Bermel, and said property was delivered by said in the petition in determining whether or not trustee in bankruptcy to said John Bermel or the Thompson Publishing Company, the defend- a cause of action has been stated. A brief

I. Reference must be had to the terms of the contract, the tenor of which is set forth

"Wherefore plaintiff prays that partition may be made between plaintiff and defendant of the property hereinbefore described as being owned by them jointly, and that the same may be ordered sold and the proceeds divided between plaintiff and defendant, according to their respective interests therein; that an accounting may be had to determine the value of such of said property as has been used, sold, or disposed of by defendant, and that judgment may be rendered in favor of the plaintiff and against defendant for the value of his interest in such property; that an accounting may be had as to the number of volumes of said publication issued, printed, and sold by defendant under said copyright and from said plates and dies, and that judgment may be rendered in favor of plaintiff and against defendant for the amount of plaintiff's interest in the proceeds of such sales; and that an accounting may be had as to the use made by defendant of said copyright and other property so owned by plaintiff and defendant, and that plaintiff may have judgment against defendant for his proportionate part of the receipts obtained by defendant therefrom. Plaintiff further prays for all other and further relief, which to the court may seem meet and proper."

words than are ordinarily used in such in- the publication had been put upon the marstruments may assist in the solution of this ket, the expenses paid, and a certain amount question. Plaintiff and the N. D. Thompson of profits made thereon, upon a failure of Publishing Company entered into the contract the publishing company to adjust same, he to publish and sell a publication entitled brought suit against it, and recovered judg"Our Island Possessions." Plaintiff was to ment in the amount of his proportion of the write the matter, attend to its illustration profits proved to have been earned up to and proof reading, and see it through the June, 1903. As a further evidence that he press. During this time he was to be paid so construed the contract, when the publisha salary by the publishing company, and ing company became bankrupt in 1905, he when the publication was sold he was to made proof before the referee of his claim receive one-third of the net profits arising in the amount of his profits to that date, and from the sale. The publishing company was the same was allowed, and he asserted no to perform all the necessary mechanical claim to the property, although it is evident work, and, although it is not so expressly from all the other facts that he knew it had stated, it follows as a necessary inference been surrendered by the bankrupt as a part that it was to bear all the expenses incident of its assets. We refer to this matter, not to preparing the work for sale. When the as showing that plaintiff would not, on acpublication had been sold, all the expenses count of such a course, be entitled in a propincident thereto were to be deducted from er manner to assert ownership in the properthe funds arising from the sale before any ty in question, if authorized by the contract, profits were declared. but, not being so authorized, it is at least persuasive evidence that no other construction was placed thereon by either party until the institution of this suit. Prior thereto there was certainly no claim of ownership in the property on the part of plaintiff, and the fact that the publishing company became insolvent did not change the terms of the contract or in any way affect the relations of the parties thereto. The mere allegation in the petition that the plaintiff is a joint owner of the property is nothing more than a mere conclusion and must, as is contended by the respondent, be measured by the other allegations in the petition. Thus measured we find that it is simply an unsupported declaration of ownership which is attempted to be based upon a contract which only authorizes a sharing in the profits.

Plaintiff's relation to the agreement, so far as its legal aspect is concerned, is best defined in the language of the contract itself, to wit:

"That the cash profits shall be divided between us in the proportion of one-third to you and two-thirds to me, or the N. D. Thompson Publishing Company. It is understood that the profits shall be reckoned on the basis of cash, and not that of stock, and that the stock until such profits are made and declared shall be the property of the N. D. Thompson Publishing Company. Your connection and interest therewith is to be one of profit-sharing simply, on the conditions above named."

The meaning of the foregoing words is to our mind unmistakable, and a prolix discussion of cases presenting similar facts in support of the conclusion we have reached herein would serve no useful purpose in that they would not make more clear that which is already as clear as words may be used to convey thought.

Plaintiff's interest, therefore, in the contract is no greater than that defined by its terms, namely, that of a profit-sharer. This is evident from the fact that the publishing company assumed all the expense incident to the publication of the work for sale, which it was enabled to do by reason of its being a going concern equipped with type, type machines, compositors, presses, book stock, and other requisites of the publishing business, while plaintiff was only equipped with his ability and experience and did not even contribute his time to the uncertainties of the venture, but was paid a salary by the publishing company during the performance of the work upon the publication, and was accorded the privilege of hiring assistants; his additional compensation being dependent upon whether or not the publication was a profitable investment. If it did not so prove, then his compensation was limited to the salary agreed upon. That he construed the contract as only giving him a share in the

The allegation that the individual purchaser of the property in question at the bankrupt sale of the assets of the N. D. Thompson Publishing Company and the defendant corporation, which afterwards acquired ownership of same, were familiar with the terms of the agreement between the plaintiff and said company avails plaintiff nothing, because said contract discloses no ownership of the plaintiff in said property, nor contains any terms upon which a well-founded claim of ownership can be based which would affect the title acquired by defendant.

Partition is asked. It cannot be decreed in the absence of ownership: this we hold, under the allegation of the petition, does not exist in the plaintiff.

Absent ownership, with the added fact that plaintiff made a claim to his share of the profits up to the date of the adjudication in bankruptcy, and same was allowed, there is no ground for an accounting.

As we construe the pleading, the copyright was taken out by the N. D. Thompson Publishing Company, and, the ownership of same being now in the defendant, the question as to whether or not it may be partitioned is

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1. APPEAL AND ERROR (§ 78*)-ORDERS APPEALABLE-STATUTES.

LOWE v. FREDE. (No. 16378.) (Supreme Court of Missouri, Division No. 2. files his affidavit in appeal, and prays an ap "Comes now plaintiff, by his attorneys, and May 26, 1914.) peal hereof from the ruling of the court on said of Appeals, at Kansas City, Mo., which appeal motion for a new trial to the Kansas City Court is allowed by the court.' (The italics are ours.)

Under Rev. St. 1909, § 2038, authorizing appeals from orders granting a new trial, an appeal does not lie from an order overruling a motion for new trial, but the party against whom a verdict is returned must wait until a final judgment is entered thereon before taking his appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 426, 434, 464-477, 480, 481; Dec. Dig. § 78.*]

2. APPEAL AND ERROR (§ 129*)-ORDERS AP

L'EALABLE-STATUTORY PROVISIONS.

In the absence of an express statute authorizing it, no appeal lies from rulings on motions.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 893; Dec. Dig. § 129.*1 3. Appeal and Error (§ 837*)—RECORD-RE

VIEW.

The court, on appeal from an order overruling a motion for new trial, will not examine the record to ascertain if a judgment was entered from which an appeal lies.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 3262-3272, 3274-3277, 3289; Dec. Dig. § 837.*]

Appeal from Circuit Court, Atchison County; Wm. C. Ellison, Judge.

Action by Lincoln A. Lowe against John W. Frede. From an order overruling a mo

tion for new trial after a verdict for defendant, plaintiff appealed to the Kansas City Court of Appeals, and it transferred the cause to the Supreme Court. Dismissed.

Suit for personal injuries resulting from assault and battery. This action was transferred to this court by the Kansas City Court of Appeals because the amount in issue exceeds $7,500. The appeal is somewhat unusual. In his printed abstract of the record appellant describes it as follows: "This is an appeal from the ruling from the circuit court overruling a motion for a new trial. In the court below the defendant obtained a verdict."

443

On said May 29, 1909, the plaintiff filed a trial was continued to the next regular term motion for new trial, which motion for new of the circuit court. On the 2d day of October, 1909, said court having again convened in regular session, the following orders were entered of record:

A careful inspection of the abstract of the record shows that the cause was tried by a jury in the circuit court of Atchison county, which jury on May 29, 1909, returned into court the following verdict:

"We, the jury, find for defendant.

"Now comes both parties herein, and by their respective attorneys, and by agreement of parties, plaintiff's motion for a new trial coming on to be heard, and the court being now fully advised in the premises, overrules said motion. To the action of the court in overruling plaintiff's motion for a new trial, plaintiff then and there and at the time excepted and still excepts."

Rockport, and John W. Stokes, of Craig, for H. B. Williams, of Craig, L. J. Miles, of appellant. Lee Mullins and L. D. Ramsay, both of Rockport, for respondent.

BROWN, J. I. The respondent concedes that the appellant's printed abstract is corappeal lies from an order of the circuit court rect, but calls attention to the fact that no overruling a motion for new trial.

[1] Our Code (section 2038, R. S. 1909) does authorize an appeal from an order of a circuit court granting a new trial, or an order arresting a judgment, but there seems to be no warrant in law for granting an appeal from an order overruling a motion for new trial. The law certainly contemplates that the party against whom a verdict is returned shall wait until a final judgment is entered on such verdict before taking his appeal.

[2] In the absence of an express statute, no appeal lies from the ruling of courts on motions. State ex rel. Shackelford v. Mc

Elhinney, 241 Mo. 592, loc. cit. 608, 145 S.

W. 1139.

entered, and without abstracting a judgment Without reciting that a final judgment was of any kind, appellant has assured us that overruling his motion for new trial. This his appeal is from the order of the court fact is also recited in the order of the court granting the appeal, as copied into appellant's printed abstract (and hereinbefore set out), the accuracy of which abstract respondent admits, and its verity is attested by the signatures and professional integrity of the attorneys for plaintiff.

We are not cited to, nor have we been able to find, any law authorizing the granting of

"W. H. Wright, Foreman."

[3] There is on file what purports to be a complete transcript of the record proper and be useless for us to examine that document bill of exceptions in this case, but it would to ascertain if a judgment was in fact entered from which an appeal would lie.

1

such an appeal. Dale v. Copple et al., 53
Mo. 321; State ex rel. v. Turner, 113 Mo.
App. 53, 87 S. W. 464; Herrmann v. Daily,
74 Mo. App. 505; Freeman v. McCrite, 165
Mo. App. 1, 147 S. W. 1102; Voorhis v.
Western Union Building & Loan Ass'n, 59
Mo. App. 55; and Rock Island Implement
Co. v. Marr, 168 Mo. 253, 67 S. W. 586.

Being fully convinced that this appeal was improvidently granted, the same will be dismissed. It is so ordered.

WALKER, P. J., and FARIS, J., concur.

SCHOOLER et al. v. SCHOOLER et al. (No. 16151.)

(Supreme Court of Missouri. May 20, 1914.) 1. DEEDS (§§ 54, 64*)—Delivery and ACCEPT

ANCE NECESSITY.

The delivery of a deed by the grantor and its acceptance by the grantee is essential to its validity.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 116, 142, 143; Dec. Dig. §§ 54, 64.*] 2. DEEDS (§ 208*)-DELIVERY-ACTS CONSTI

TUTING.

The delivery of a deed and its acceptance may be established by indirect or inferential

Statement by the Court.

The two daughters and son and only heirs of Nathaniel A. Schooler, deceased, sued two of his grandchildren, being the children of the plaintiff, Martha Cowsert, to quiet title to about 85 acres of land. The petition contained a second count (dismissed on the trial) which sought to set aside and annul a deed conveying the land in question to another daughter of Nathaniel A. Schooler, plaintiff Altie Yoakum, for life, with remainder in fee to two of the children of the other daughter, on the ground that it had not been delivered by the grantor, Nathaniel A. Schooler, Sr., in his lifetime. Mrs. Yoakum, the [Ed. Note.-For other cases, see Deeds, Cent. life tenant in this deed, though married, was Dig. §§ 625-632; Dec. Dig. § 208.*] childless. Her sister, Mrs. Cowsert, the life

evidence.

3. DEEDS (194*)-DELIVERY-ACCEPTANCE- tenant in the other deed, was married, and PRESUMPTIONS. the two defendants to this suit were born of her first marriage, and were remaindermen in the deed to Mrs. Yoakum.

The defendants pleaded title under said deed in their answer and prayed that the interest and estate of the parties be adjudged according to the terms of the deed. A jury was waived, and the case submitted to the courts upon the evidence which disclosed that Nathaniel A. Schooler, Sr., was the father of the three plaintiffs; that in the fall of 1905, in company with the husband of one of his daughters, he called upon a firm of lawyers in Richmond, Mo., and instructed them to prepare a deed and abstract of title to the land in dispute in this case to his daughter Mrs. Yoakum for life, with remainder in fee to the two children of his daughter Mrs. Cowsert, who were born of her first marriage, and a similar deed, to

[Ed. Note. For other cases, see Deeds, Cent. other land of about the same quantity, to his Dig. §§ 130-135; Dec. Dig. § 58.*]

daughter Mrs. Cowsert, with remainder in fee to her children, three in number, born of both marriages; that as to the land embraced in the last deed these plaintiffs have brought against the remaindermen a similar action to the present; that in accordance to such instructions the two deeds were prepared; that on the 23d of October, 1905, the said Schooler returned to the office of his attorneys and signed and acknowledged both deeds; that they were then inclosed in a large envelope, which was sealed up and de

The presumption of the delivery of a deed and its acceptance in case of voluntary settlement is stronger than in case of bargain and

sale.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 574-583, 623, 634; Dec. Dig. § 194.*] 4. DEEDS (§ 208*) - DELIVERY — EVIDENCE SUFFICIENCY.

Evidence held to sustain a finding of a delivery of a deed to a third person for delivery to the grantee.

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[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 625-632; Dec. Dig. § 208.*]

5. DEEDS (§ 58*)-DELIVERY-EVIDENCE-SUFFICIENCY.

A deed delivered by the grantor to a third person for delivery to the grantee, and the delivery by the third person to the grantee, is a good delivery, though the grantor is dead at the date of the delivery to the grantee, for the delivery takes effect when first made to the third person.

6. DEEDS (§ 208*)-DELIVERY-ACCEPTANCE EVIDENCE.

Evidence held to sustain a finding that a grantee accepted the delivery of a deed so as to take title thereunder.

duct and his inability to dispute it may be drawn.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 625-632; Dec. Dig. § 208.*]

Cent. Dig. § 96; Dec. Dig. § 76.*]
[Ed. Note.-For other cases, see Evidence.

Lamm, C. J., and Woodson and Walker, JJ., dissent.

In Banc. Appeal from Circuit Court, Ray County; Francis H. Trimble, Judge.

Action by Luther S. Schooler and others against William Nathaniel Schooler and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

The following is the opinion of BOND, J., in division:

7. EVIDENCE (8 76*)-PRESUMPTIONS-FAILURE OF PARTY TO TESTIFY.

Where a party in a civil case can give testimony exonerating himself from a rational inference of inequitable conduct, but refuses to do so, the conclusion of his guilt of inequitable con

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livered to him, with a superscription on was done, and which Nathaniel A. Schooler each, to wit, "Deed and abstract from Na- said was correct. There was other testimony thaniel A. Schooler to (naming the grantee)"; that during his lifetime he had stated that that he remarked on leaving the office that he had made the gift of land to his daughhe was "not going to turn over the deeds to ters in order to make them equal to their his daughters at once," whereupon his at- brother, for whom he had been compelled to torney advised him that in order to make the pay fines, and that he made the gifts of the deeds effective they must be delivered to the remainder under the present deed to two of grantees, or, if they were placed in the hands his grandchildren, because he wanted to do of a third party for the grantees, such party something for them in consideration for should be notified that he, Schooler, had no what they had done for him, by remaining at further control of them, and that they were his house until they reached their majority, the deeds of his daughters; thereupon Na- after their mother had left her first husband, thaniel A. Schooler took the deeds and hand- who was their father; that he spoke to cered them to the cashier of the banking house, tain persons about these gifts of land to his who placed them in a safety box belonging to two daughters, and gave his reasons; that the bank, and which was generally used for he caused a house to be built on one of the keeping papers left there; it was not the tracts, and said that he intended to give it to private box of Mr. Schooler. the daughter to whom the land had been conveyed; that he said the deeds "ought to be handed over, but did not say when they would be handed over"; that plaintiff Mrs. Cowsert stated that he knew the deed to her sister had been "fixed" by her father, so that her sister's husband could not spend it.

At the time the deeds were put in the hands of the cashier a statement in regard to them was made by Mr. Schooler, but the cashier testified that he could not recollect either the words or the substance of it. On that point the following questions were put to him by the court to which he answered as follows:

"By the Court (continuing): Q. And you don't recollect a solitary thing he said? A. No, sir, he handed me the papers, but I don't recollect what he said. Q. He made some statement to you, but you don't know what it was? A. No, sir; we get so many of these papers that I did not impress my mind what he said. Q. You were not the agent for Mr. Schooler for any purpose, were you? A. No."

Mr. Schooler then went to his home about 12 miles from the town, and thereafter the two tracts of land described in the two deeds made by him to his daughters, were taken possession of by them or by their husbands on their behalf, and were fenced off from each other, and also fenced off from the remainder of their father's land, which consisted of about 113 acres. For the years following each of the said daughters caused the property described in their respective deeds to be assessed in their own names, and the taxes were paid, and the crops grown thereon were sold by the daughters and the money received by them or their husbands. Their father died in December, 1908, whereupon, his two daughters together called upon the cashier of the bank where their deeds had been left, and, he being absent, they requested his assistant to deliver the deeds to them, which was done. During the afternoon of the same day the cashier of the bank, being advised of what was done, secured the return of the deeds to himself.

Shortly after the two daughters returned the deeds to the cashier of the bank, they and their brother joined in the present action. After taking the case under advisement, the learned judge made a finding in favor of the grandchildren, which sustained the life estate to plaintiff Mrs. Yoakum, with a remainder in fee to defendants. From a judgment in accordance, the mother of the defendants, and her sister and brother, have prosecuted this appeal.

Opinion.

I. In this case both parties have a common source of title, the father of the plaintiffs and the grandfather of the defendants. Unless, therefore, the defendants are able to show a valid grant of the remainder in the particular portions of their grandfather's land, described in the deed involved in this case, they must fail in their defense, and that property, as well as the remaining estate of their grandfather, will be inherited by the plaintiffs, share and share alike. The only assault made by the plaintiffs upon the deed in this case is that it was not delivered to plaintiff Mrs. Yoakum in the lifetime of her father, the grantor. The motive of the grantor to make some provision by this deed for the services of his two grandchildren (the two children of Mrs. Cowsert by her first marriage), who remained with the grandfather after her separation from her first husband, is not questioned; neither is it doubted that the provisions of the deed were in exact accordance with the instructions given

The evidence goes to show that when the assessor came out to the farm of Nathaniel A. Schooler, he returned for assessment only that portion of his land which he had not by the grantor to his attorneys who prepared conveyed to his daughters, and asked the it. The only contention of the plaintiffs is assessor if he had gotten the statement from the technical one of nondelivery. "the girls of their property," and suggested that he, the assessor, recite the calls of the

[1, 2] The necessity of the delivery of a deed and its acceptance as such by the gran

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