islature intended to invest the county and probate courts with powers freed from many of the restrictions imposed by those sections regulating sales of land on petition of the administrator, executor, or creditor for the sale of real estate to pay debts." The case of Valle v. Fleming, 19 Mo. 454, 61 Am. Dec. 566, inferentially holds that no notice would be necessary under these sections.

It

The statutes providing for the sale of the right, title, and interest only of the deceased in incumbered property, whether such incumbrance is by deed of trust or vendor's lien, make no provision for petition or notice. is only when we come to the provisions for the sale of real property to pay debts that we find particular directions as to notice, publication, filing accounts, etc. I therefore conclude that in this proceeding, under sections 147 and 148, the provisions of sections 151, 152, 153, providing for the filing of lists of debts, notice, publication, etc., do not apply, and that there is no want of proper parties before the court, nor failure of other jurisdictional facts.

The Legislature, no doubt, regarded proceedings to sell real estate to pay debts as essentially different, in relation to the interests of the heirs, from proceedings to protect incumbered property and dispose of equities, and hence the minute restrictions as to the former which are wanting in the latter cases. However that may be, the statute plainly makes a distinction in the matter of jurisdiction of the court. The probate court has jurisdiction to pass judgment on the points presented, namely, whether, under the facts, it was proper to order the sale of the equities in the real estate. The propriety of the ruling can be tested on appeal from any order it may make confirming a sale. Wilson v. Brown, 21 Mo. 410; McVey v. McVey, 51 Mo. 420; Desloge v. Tucker, 196 Mo. 587, 94 S. W. 283; section 289, R. S. 1909.

For the foregoing reasons, I respectfully dissent from the opinion of the court.

KENNISH, J., concurs.

WARNER et al. v. MICHEL et al.

a debt bars an action for the statutory penalty for a refusal to release the deed of trust. Cent. Dig. §§ 1062-1064, 1067, 1073, 1084, 1085, [Ed. Note.-For other cases, see Judgment, 1092-1097, 1132; Dec. Dig. § 585.*]

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Franceska Warner and another against Frank H. Michel and others, partners under the firm name of Hammell & Karleskind. From a judgment of nonsuit, plaintiffs appeal. Affirmed.

Louis Mayer and L. P. Crigler, both of St. Louis, for appellants. J. L. Hornsby, of St. Louis, for respondents.

REYNOLDS, P. J. This is the second ap peal in this case. It was here under the same title and will be found reported 143 Mo. App. 133, 122 S. W. 338. The petition contained two counts, the first asking for the cancellation of the record of a certain deed of trust, it being averred that the debt secured by it had been paid off in full and that plaintiffs had tendered the legal fee to entitle them to have satisfaction of the deed of trust; the second. count averring the payment in full of the debt secured by the deed of trust and tender of the legal fee for the release thereof on the margin of the record, along with the demand that the release be indorsed, and averring the refusal of defendants to release the deed of trust of record, demands the statutory penalty of 10 per cent. of the debt as damages for failure so to do.

At the former trial the cause was tried before the court as to the first count and before the jury as to the second, the testimony as to both counts being heard together. At the conclusion of that trial the court found for defendants on the first count, but the jury before whom the second count for the statutory penalty was tried, returned a verdict in favor of plaintiffs. Plaintiffs filed a motion for new trial as to the first count, and defendants filed one as to the second count. The court sustained the motion of defendants for new trial on the second count but overruled the motion of the plaintiffs for a new trial on the first count. Plaintiffs

CONCLUSIVENESS

A judgment adjudging that a party is not entitled to a release of a deed of trust securing

in favor of defendants was a bar to the action on the second count, and claiming that that judgment is conclusive on the issues in the case as set out in the second count or cause of action of the petition and that there is nothing remaining for trial or submission to the court. The court sustained that objection, whereupon plaintiffs took

The only error assigned by counsel for appellant is to the action of the court in giving the declaration of law above set out, it being urged that Franck was not a proper or necessary party either plaintiff or defendant. While other authorities are cited in the brief of counsel for appellant, in the argument accompanying the brief the authorities relied on are 15 Ency. Plead. & Prac. 735; State ex rel. Glass et al. v. Beasley, 57 Mo. App. 570, loc. cit. 574; and State ex rel. Jackson v. Bradley, 193 Mo. 33, 91 S. W. 483. The quotation from the Encyclopedia of Pleading and Practice is that the test of unity of interest intended by the statute is such joint connection with the subject-matter as would preclude a separate action. However true this proposition may be, to apply it to the case at bar, as contended for by learned counsel for appellant, is the assumption of the very point in controversy. The question here for determination is whether this contract shows such joint connection with the subject-matter as will preclude a separate action by either Mr. Frumberg or Mr. Franck. The holding of the learned trial judge, as evidenced by the declaration of law, is that it will not.

In the Bradley Case, supra, it is distinctly said (193 Mo. loc. cit. 45, 91 S. W. 486) that the employment of the two attorneys there named, one of whom had sued for compensation claimed to be due him, "although for a contingent fee was wholly independent of each other." That is not the case here. The contract is for services which were to be jointly performed by appellant and Mr. Franck; it is a joint contract for the joint services of the two in the conduct of a certain cause which the respondent here was desirous of having brought and prosecuted.

The Beasley Case, supra, was an action for trespass where several persons, alleged to have been damaged in their several interests, undertook to sue jointly. The Kansas City Court of Appeals very properly held that this could not be done.

the plaintiffs, leaving Slaughter as the sole plaintiff and a verdict and judgment was returned in his favor. From this an appeal was taken to the Supreme Court. It appeared that the contract involved was to pay Brooking, Slaughter and Green a certain sum of money and that the only condition therein was that the necessary funds subscribed should be equal to one-fourth the cost of macadamizing a public road. Our Supreme Court (151 Mo. loc. cit. 32, 51 S. W. 472) there held that the cause of action being a joint contract, the suit was properly brought in the names of the joint obligees; that the amendment changed it to an action on a several contract; that if the contract was several there was no reason why this might not be done, for if a party plaintiff to a suit is an unnecessary party, the dismissal as to him would not in any way change the cause of action. "But," says Judge Burgess, "it is not so when the suit is (on) joint contract, and the amendment changes it to an action on a several contract, for in that case there is an entire change in the cause of action, from a joint to a several cause of action upon a joint contract which is not permissible." Further along (151 Mo. 33, 51 S. W. 472) it is said, referring to the action as originally instituted, "In the contract which formed the basis of that action the obligees were joint promisees, one of whom could not have maintained a separate suit upon the contract." In the light of these adjudicated cases, as well as of many more cited by counsel for respondent, we think that the learned trial court correctly applied the law as announced by him in the declaration of law complained of. That is the only error assigned and it is not tenable.

The judgment of the circuit court is affirmed.

NORTONI and CAULFIELD, JJ., concur.

GILLFILLAN v. SCHMIDT.

the cause of action is on a joint contract the suit must be brought in the names of the joint obligees. Welles, to Use, etc., v. Gaty et al., 9 Mo. 565, was the earliest of these and the rule there announced has never been departed from, nor has it been changed by statute. A later case that collates many au

thorities and announces the same rule is that of Slaughter v. Davenport, 151 Mo. 26, 51 S. W. 471. There it appeared that the action had been begun before a justice of the peace in the name of three parties plaintiff who recovered a judgment. The defendant appealed from that to the circuit court. There plaintiff amended his petition by leave

12, 1912.)

was not objectionable, as leaving the jury to determine the contract employing the broker. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. 8

296.*]

against an instruction given at the instance of defendant, to the effect that the burthen of proof in the case is upon plaintiff to show by the greater weight of the evidence that

EVIDENCE-INSTRUCTIONS.

Where, in an action for commissions for procuring a purchaser of real estate, the broker and a customer procured by him testified to a proposal to purchase materially different from the terms fixed by the owner, an instruction that the broker, to recover, must procure a purchaser ready, willing, and able to purchase on the terms fixed by the owner, was not er

roneous.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. 88 121-130; Dec. Dig. § 88.*] 4. TRIAL (8 244*) INSTRUCTIONS UNDUE COMMENT ON SINGLE FACT. An instruction, in an action for commissions for procuring a purchaser of real estate, that if the broker brought a prospective purchaser to the owner on Sunday, the owner was not bound to accept him as a purchaser, or to enter into negotiations on that day, and that what the parties did on that day was immaterial, was not objectionable, as an undue comment on a single fact.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 577-581; Dec. Dig. § 244.*]

farm; that that person was ready, financially able, and willing to purchase defendant's farm on the exact terms fixed by defendant, and unless plaintiff had shown these facts by the greater weight of the evidence, their finding should be for defendant. It is complained of this instruction and of the following ones, which embody in different form this same direction, that they are in direct conflict with what is said by this court in Dalton v. Redemeyer, 154 Mo. App. 190, 133 S. W. 133. If these instructions stood alone in referring to the contract, they might be subject to this criticism. But the analogy between this case and the Dalton Case fails when the instruction given at the in. stance of plaintiff is considered. In that instruction the court told the jury, at the instance of plaintiff himself, exactly what the terms of the sale of the farm were to be. Hence it cannot be said, as was said in the

Action by Thomas P. Gillfillan against George F. Schmidt. From a judgment for defendant, plaintiff appeals. Affirmed.

Emil Roehrig, of Warrenton, for appellant. T. W. Hukriede and J. W. Delventhal, both of Warrenton, and E. Rosenberger & Son, of Montgomery City, for respondent.

REYNOLDS, P. J. This action, instituted before a justice of the peace to recover commissions on the sale of land, being determined there against plaintiff, was appealed to the circuit court, where on a trial de novo before the court and a jury, a verdict was again returned in favor of defendant, judgment following, from which plaintiff, filing his motion for a new trial and saving exception to that being overruled, has duly perfected appeal to this court.

[1] The verdict is challenged by the learned counsel for appellant, as unsupported by the evidence and further that the evidence introduced at the trial did not support the instructions given at the instance of defendant. As is usual in transactions, the proof of which rests wholly in parol, the evidence was somewhat conflicting but not irreconcilable. We cannot say, on reading it, that there was no evidence to support the verdict. Even admitting that it was seriously conflicting, it is clear that the jury believed that offered and introduced by defendant in the case. To do that was entirely within their province.

Nor can we agree that the instructions given at the instance of defendant were unsupported by the evidence.

[2] The most serious complaint is leveled

grope in the dark to determine what the contract between the parties was.

[3] It is further assigned as error that the court told the jury that plaintiff to recover should have procured a purchaser ready, willing and able to purchase the farm, "on the exact terms fixed by defendant." That might be error if it were not for the fact that by plaintiff's own testimony and that of his customer, it appears that that customer and the plaintiff proposed to conclude the purchase on terms which were not only not exactly as authorized by defendant, but were very materially different. With this in evidence, we do not think the error is, in this case, reversible error.

[4] Criticism is leveled at one of the instructions which told the jury that if they believed that plaintiff brought a person named as prospective purchaser, who was a customer of plaintiff, on Sunday, then defendant was not bound to accept him as a purchaser or enter into negotiations on that day, but if they found that anything was said or done by defendant on that occasion, the fact that the day was Sunday "becomes immaterial and will not be considered by the jury." We see no cause for complaint by plaintiff as to this. It is urged, however, that it is an undue comment on a single fact. We do not think so.

Finding no error to the prejudice of plaintiff in the record in the case or in the instructions given, nor in the action of the court in overruling the motion for new trial, the judgment of the circuit court is affirmed.

NORTONI and CAULFIELD, JJ., concur.