Suit by William L. Grassmuck, administrator of the estate of Mary E. Grassmuck, deceased, against E. H. Ehrler. From judgment for plaintiff, rendered after an unavailing motion for new trial, defendant appeals. Affirmed.

Conway Elder, of St. Louis, for appellant. Albert E. Hausman, of St. Louis, for respondent.

The answer, besides a general denial, sets up that the written agreements sued upon had been executed and delivered by the defendant to Mary E. Grassmuck in exchange for two written agreements of like kind and character, in which the defendant had agreed to repurchase from the said Mary E. Grassmuck, upon her demand at any time after 2 years and before the expiration of 30 months, the number of shares set out in the separate agreements, and that these substituted written agreements sued upon were dated back to correspond with the dates of each of the original agreements, and that the defendant had executed and delivered the said written agreements sued upon, upon the ex

BECKER, J. This is a suit in two counts brought by respondent, as administrator of the estate of Mary E. Grassmuck, deceased, to recover damages for the breach of two written contracts. The case was tried before the court and jury and verdicts result-press understanding with the said Mary E. ed in favor of plaintiff on both counts, which verdicts aggregated the sum of $3,105.02. From the judgment rendered thereon, after an unavailing motion for new trial, the defendant appeals.

The petition in two counts seeks to recover on two written agreements executed by the defendant; the said agreements being identical in wording with the exception of the dates, amounts, and the number of shares of stock set out therein. The agreement set out in the first count is as follows:

"St. Louis, Mo., Sept. 11, 1909. "In consideration of the purchase from me of four thousand shares of the capital stock of the Reiner Mining Company, by Mrs. Mary E. Grassmuck, I hereby guarantee to repurchase the said stock from Mrs. Mary E. Grassmuck upon demand at any time after three (3) years and before the expiration of forty-two (42) months for the sum of fifteen hundred and no/100 dollars, with interest at the rate of six (6) per cent. per annum from this date, less any dividends paid upon said stock.

"In witness whereof, I have hereunto set my hand and seal at the city of St. Louis, Missouri, this 11th day of Sept., A. D. 1909. "E. H. Ehrler. [Seal.]

"Issued in Duplicate."

Grassmuck that the new agreements were not to become effective and binding upon the defendant until the two agreements that had theretofore been executed and delivered should have been returned to him, and that said two prior agreements had never been returned, and, further, that no demand had ever been made upon him to repurchase the stock. The reply was conventional.

It is undisputed that Mrs. Grassmuck purchased two blocks of stock in a mining company from the defendant; one block of 4,000 shares she purchased September 11, 1909, for the sum of $1,500, and at the time of the purchase the defendant entered into an agreement with Mrs. Grassmuck to repurchase the said shares for the sum of $1,500 upon her demand at any time within 2 years and before the expiration of 30 months; that on October 21, 1909, Mrs. Grassmuck purchased an additional 2,000 shares upon a similar agreement to repurchase; that two new agreements of like tenor and purport were executed by the defendant and delivered to Mrs. Grassmuck some time in the late summer or early fall of 1911, and dated back to correspond with the date of the original agreements. In these new agreements the defendant stipulated, upon the terms of the original agreements, to repurchase the stock upon demand at any time after three years and before the expiration of 42 months. As to the actual date upon which defendant had signed and delivered the contracts sued on, which were exchanged for the original agreements, the testimony is indefinite.

The petition recites that no dividends were ever paid on said stock, and that after the expiration of 3 years, and before the expiration of 42 months following September 11, 1909, the date of the agreement, the said Mary E. Grassmuck had duly demanded of the said E. H. Ehrler that he repurchase said stock, but that the defendant failed and refused, and at all times since has failed and George Grassmuck, a son of the deceased, refused, to purchase the said stock from the Mary E. Grassmuck, when called as a witsaid Mary E. Grassmuck, or from the plain-ness for plaintiff, testified that in the month tiff, her administrator, and prays judgment of August, 1911, he had made a trip to Calfor $1,500, with interest thereon from Sep-ifornia to examine the mines in which his tember 11, 1909. mother held the stock, and that immediately

The second count of the petition is found-upon his return he had advised his mother ed upon a like written agreement, dated October 21, 1909, wherein the defendant agreed to repurchase 2,000 shares for the sum of $750, at any time after 3 years and before the expiration of 42 months, less any dividends paid upon the stock up to the time of the demand.

to collect her money from the defendant under the agreements which she held; that his mother thereupon did demand of the defendant that he repurchase the stock, but that the defendant was not able to do so, and the matter resulted in the substitution of the said new contracts for repurchase in place of the

"Where an executor or administrator is a

originals; that he thought these new con- | vised Statutes of Missouri, 1909, it is spetracts were signed by the defendant either in cifically provided that: August or September, or in November or December, 1911. On cross-examination he referred to the dates as some time in the fall of 1911.

party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is George Grassmuck was also called as a living and competent to testify, except as to witness by the defendant, and on direct ex- such acts and contracts as have been done or amination testified that the new contracts made since the probate of the will or the apwere delivered some time in the fall of 1911, pointment of the administrator." (Italics ours.) and upon cross-examination testified that it Thus the statute clearly and unequivocally may have been August and September, or disqualifies a surviving party as a witness November and December, 1911. And upon redirect examination he stated that it was

for any purpose whatsoever as to anything that has transpired prior to the probating of either in August or the first part of Septem- the will or the appointment of the executor

ber, 1911.

Said witness further testified that so far

as he knew the contracts sued on had been exchanged for the original agreements to repurchase without his mother giving defendany additional consideration therefor; that he did not know that his mother had in point of fact delivered the originals to the defendant, either at the time she received the agreements in exchange or at any time thereafter; that the original agreements were not found among her personal effects after her demise. On behalf of the defendant a letter was introduced bearing the date of November 13, 1911, written by the defendant to Mrs. Grass muck, which letter reads as follows:

"Dear Madam: You will recollect my handing you the following contracts covering the repurchasing of Reiner Mining Company shares, three years from the date of such contracts. September 11, 1909, 4,000 shares, $1,500.00; October 21, 1909, 2,000 shares, $750. The above contracts were really extensions on the old ones of the same date above mentioned, except for a period of two years and which old contracts you were to return to me. Inasmuch as you have not yet returned the old contracts, and therefore now have two sets, would be pleased to have you send me the former old ones by return mail, much obliging."

When the defendant took the stand to testify an objection was interposed that he was not a competent witness, and the court sustained the objection, and the defendant was not permitted to testify.

It will not be necessary to set out the instructions at length as such parts of the instructions as are complained of will be considered in the opinion.

[1] It is assigned as error that the court refused to permit the defendant to testify concerning matters transpiring prior to the appointment of the administrator, as to which the witness, George Grassmuck, had been permitted to testify, it being argued that defendant was a competent witness for the reason that this testimony related to transactions between the defendant and the said witness, to which matters the deceased was not a party and of which there was no evidence she had any knowledge.

This point would be well taken were it not for the fact that under section 6354, Re207 S.W.-19

or administrator of the deceased. It therefore follows that since the plaintiff in the case is the administrator of the deceased, the trial court properly ruled that the defendant, who was the surviving party to the contract, as to matters which transpired prior to the was not a qualified witness for any purpose probating of the will or the appointment of the administrator. Weiermueller v. Scullin, 203 Mo. 466, 101 S. W. 1088; Hoss v. Crawford, 145 Mo. App. 360, 129 S. W. 1053.

Learned counsel for defendant next insists

that the defendant was a competent witness at least as to conversations which defendant had had with George Grassmuck and concerning which said Grassmuck had been permitted to testify, for the reason that the witness George Grassmuck, "assumed to act as agent for the deceased, thereby making defendant a competent witness, at least as to

conversations and transactions had with the

said Grassmuck."

When defendant was placed on the stand as a witness and objection made to his competency, the record discloses the following to have taken place:

"Mr. Hausman: If your honor please, at this time I want to offer an objection to this witness' competency except as to conversations had or transpiring after the appointment of the administrator, under the statute.

"The Court: It is clearly incompetent for any other purpose.

"Mr. Elder: Q. Did you know Mary E. Grassmuck? A. I did.

"Q. Do you recall the time of her death?

"Mr. Hausman: I object now to the question because that, of course, relates to something prior to the time of the appointment of the administrator.

"Mr. Elder: We will follow it by showing during her lifetime she never made a demand. "Mr. Hausman: That is what I am objecting to."

"The Court: For that purpose it would not be competent by reason of the death of Mrs. Grassmuck. If that is your purpose I will sustain the objection." (Italics ours.)

[2] In this state of the record we must rule this point against appellant, for it is readily apparent that the question as to defendant's competency, because George Grassmuck had been his mother's agent, was not presented,

and therefore was not passed upon by the trial court, and consequently there is nothing so far as this assignment of error is concerned for us to review.

It is urged that the court erred in refusing to give instruction B, requested by defendant, "as there was no evidence that the deceased gave anything of value as a consideration for the execution and delivery to her of the two agreements sued on, the transaction, according to the evidence, merely being an exchange of two prior agreements for the agreements sued on, thereby intending to extend the time for the repurchase of the stock contemplated thereby, but making the agreements sued on void for want of consideration."

Instruction B, requested by defendant, and which the court refused to give, reads as follows:

fendant to repurchase the stock, was in fact the agent of his mother, Mrs. Grassmuck, because plaintiff could have recovered if the jury believed from the evidence that Mrs. Grassmuck herself had made such a demand.

[5] Furthermore this point was correctly and fully covered in instruction No. 3, given by the court at the request of the defendant, wherein the jury was instructed, among other things, that even though they might find from the evidence that George Grassmuck had made a demand they could not find for plaintiff unless they further believed from the evidence that he, at the time of making such demand, was the agent of his mother.

[6] There was sufficient evidence adduced to make it a question for the jury whether or not a demand had been made, and, if made, whether within the required time, and whether or not defendant had refused to comply therewith.

Finding no reversible error in the record, the judgment should be affirmed. It is so ordered.

REYNOLDS, P. J., and ALLEN, J., concur.

"The court instructs the jury that in order to constitute a sufficient consideration to support a contract some benefit or advantage must accrue to the promisor or some detriment, injury, or expense must be sustained by the promisee, and in this case, unless you believe from the evidence that Mary E. Grassmuck gave or parted with something of value as a consideration for the execution and delivery to her of the two agreements sued on by plaintiff, other than the amount originally paid for the stock mentioned therein, then said agreements are not binding WEHRENBRECHT v. WEHRENBRECHT. on defendant, and you will find for defendant; and the mere forbearance by said Mary E. Grassmuck to sue upon either of the two prior agreements mentioned in the evidence, or her promise to extend the time for the repurchase of the stock contemplated thereby and accept the two agreements sued on by plaintiff, without giving any new or additional consideration therefor, is not a sufficient consideration to support the agreements sued on."

(No. 16049.)

(St. Louis Court of Appeals. Missouri. Argued and Submitted October 8, 1913. Opinion Filed Nov. 6, 1918. Rehearing Denied Jan. 6, 1919.) 1. DIVORCE 132-SUIT-EVIDENCE-SUFFI

CIENCY.

In divorce suit charging numerous indignities, rendering plaintiff husband's condition intolerable, held, that plaintiff made out a case entitling him to divorce.

2. DIVORCE 53-"INJURED PARTY" - RE

CRIMINATION.

his conduct not being such as would entitle defendant to a divorce under section 2372, providing for cross-bill.

[3].This instruction was properly refused. Forbearance to sue upon the original agreements to repurchase was a sufficient consideration to support the new agreements wherein Where indignities of defendant wife rendered defendant was given an extension of time of plaintiff husband's condition intolerable, he one year in the one agreement, and six would, although he was not blameless, be the months in the other, before demand for re-injured party," within Rev. St. 1909, § 2370; purchasing the stock could be made. Mrs. Grassmuck thereby canceled the original agreements and accepted in lieu thereof new ones under which her right to demand the repurchase of her stock by defendant was deferred for a definite period of time. Such a contract to forbear is a sufficient consideration for the new promise of the defendant to repurchase. Gate City Nat. Bank. v. Elliott (Sup.) 181 S. W. 25; Glasscock v. Glasscock,

66 Mo. loc. cit. 630.

[4] The refusal on the part of the trial judge to give instruction C, aked by defendant, was not error. This instruction was tantamount to telling the jury that plaintiff could recover only in the event that they believed from the evidence that George Grassmuck, when and if he made a demand on de

[Ed. Note.-For other definitions, see Words and Phrases, Second Series, Injured Party.] 3. DIVORCE 184 (10) - REVIEW - PROVINCE OF COURT ON APPEAL.

While, in divorce suit, court on appeal will defer largely to conclusions of trial judge, it is still under the obligation to form its own conclusions as to where the truth lies and where

the merits are found.

Allen, J., dissenting.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

Suit by Henry P. Wehrenbrecht against Emilie Wehrenbrecht. Petition denied, case

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

dismissed, and plaintiff appeals. and remanded, with directions.

Reversed their children and had never done anything for them; accused plaintiff of earning more

Douglas W. Robert, of St. Louis, for ap- money than he told her of and of using part

pellant.

Luke E. Hart and Richard C. Hart, both of St. Louis, for respondent.

REYNOLDS, P. J. Plaintiff brought his action against the defendant, his wife, for divorce. The parties were married in the city of St. Louis, December, 1886. The action was commenced in July, 1917.

of it to keep another woman; and of meanness to her and his family.

The petition continues with a number of other charges along this line. Averring the necessary jurisdiction of facts, plaintiff prays a decree of divorce.

It is set out in the petition that four children were born of the marriage, the eldest, a son, dying when about 5 years old.

The answer, beyond the admission of the After averring that during all the times marriage and the birth of the children, dementioned in the petition plaintiff "faithful-nies all the allegations of the petition and ly demeaned himself and discharged all his duties as the husband of defendant, and at

avers that plaintiff was not the injured and innocent party and was not entitled to a di

vorce.

There was a trial before the court, lasting

parts of several days, and at its conclusion the court denied the petition of plaintiff and dismissed the case. Interposing a motion for new trial and excepting to its being overruled, plaintiff has appealed.

all times treated her with kindness and affection, but the said defendant, wholly disregarding her duties as the wife of the plaintiff, has offered plaintiff such indignities as to render his condition intolerable, in this, to-wit," the petition charges numerous indignities. Summarizing them, they charge false accusations by defendant to other people of [1] We have read all of the somewhat voimproper relations by plaintiff with married luminous record of the testimony in this women; improper and immoral conduct in case and do not think that it would subregard to his children, in exposing his perserve any public interest to attempt to set son to and spying on his daughters; express-it out in detail, or even to summarize all of ing the wish on many occasions that plain it. It is sufficient to say of it that there tiff had died instead of a son of theirs, who was testimony on the part of plaintiff in died when about 5 years of age; expressing a desire to kill plaintiff; that she would kill support of many of the more serious allegations of indignities pleaded, these sustained him sometime; that she had stated at many not alone by the testimony of plaintiff himtimes that the family would be better off self but by that of other witnesses. In point if plaintiff were dead; that she would not of fact, a number of the charges were admourn if he were dead and that when he mitted by the defendant, or corroborated by died she would warn their pastor not to say the testimony of her own witnesses. Reada good word for him at the funeral; accused him to members of their church of be- ing the whole testimony in the case and ing a hypocrite; that defendant complained giving it the consideration we, as an appelto and had him haled before the Assistant late court, in a case of this kind, are bound Circuit Attorney as a vagrant; had him to do, our conclusion is, that plaintiff made tried upon a vagrancy charge, which she had out a case entitling him to a decree. It aplodged against him; that defendant contin- pears that almost from the beginning of the ually nagged and scolded him in the presence marital life of these parties, there has been of other people and of their children; rid- constant quarrelling and bickering, often iculed and belittled plaintiff before others, brought on by one of the daughters, parand continually complained about him to ticularly, who seems on all occasions to have her own and plaintiff's friends and had told sided with her mother and has invariably plaintiff many times in the presence of their taken her mother's view of the case as to children that she hated him and was sorry the relations between them, apparently withshe had ever met him and would rather wash out any love or respect for her father. Defor a living than live with him; had told fendant had plaintiff arrested as a vagrant. many people that she hated him; that she He was acquitted of that charge. The last had lost all love for him and believed he time he left home his wife told him, in efwas losing his reason; had told plaintiff in fect, never to return. In short, the testithe presence of their children that nobody mony tends to show that the plaintiff, had any use for him; that everybody knew throughout practically the whole of their him and if it were not for him, she would married life, has been subjected to what is have more friends; that she had no use for commonly referred to as "nagging" on the him except for the money she could get out part of his wife, usually over the most of him; told plaintiff to give his money to trivial, sometimes over serious matters of his family and leave; that defendant had domestic polity. She and her daughters, sosaid to plaintiff that he (plaintiff) did not cially ambitious, complained of the neighborknow whether the deceased son was his son hood in which they lived, and were continor not; asserted that he had always hated ually urging removal to other neighborhoods;

when he left they did move into another lo- | from them. If both parties have a right to cality.

[2] The question then arises, was plaintiff debarred from relief because he was not an “innocent and injured party"? While plain

tiff himself was not blameless in all these matters, the weight of the testimony, as it strikes us, is, that within the meaning of the law, he was the injured and innocent party.

It is rather curious that section 2370, Revised Statutes 1909, does not use the word "innocent," only providing that for any of the causes mentioned "the injured party" may obtain a divorce. In section 2372, providing for a cross bill, as it is called, it is enacted that

"If the court shall be satisfied that the defendant is the injured party, it shall enter judgment divorcing the defendant from the said plaintiff, as prayed in the answer."

Nevertheless, it has always been assumed in our pleadings that an averment should, in effect, be made that plaintiff, or defendant, is both the innocent as well as the injured party, or words of similar import. As the chapter on divorce and alimony appears in the revision of 1845 (see p. 426, § 1), the language is: "The innocent and injured party may obtain a divorce from the bonds of matrimony." In the old case of Nagel v. Nagel, 12 Mo. 53, these words are referred to as necessary under the law as it stood in 1845. The words "innocent and" were left out of the revision of 1855 (as see 1 Revised Statutes 1855, p. 662, § 1), as they had previously been left out in the Act of March 12th, 1849 (see Laws 1849, p. 49, § 1), which amended the chapter concerning divorce as it stood in the revision of 1845, and so they have remained to the present day. Referring to this omission, Judge Bliss, speaking for our Supreme Court, said, in Hoffman v. Hoffman, 43 Mo. 547, loc. cit. 549, that it was not clear why the word "innocent" had been left out, "unless regarded as superfluous, or -more likely to conform to section 3 (chapter 114, p. 561, Revised Statutes 1865, which is now section 2370, Revised Statutes 1909), where a divorce is provided for the defendant if the court shall find that he or she is 'the injured party.' It is further held in Hoffman v. Hoffman, supra, that the statute should receive the same construction in this respect as before the change; that at least no better character should be required of a party seeking a divorce, "and we are not inclined to allow it to a person sustaining a worse one." Says Judge Bliss, in the above

case:

"The least that can be required, if we would make the provisions of the statute harmonize with the principles of the law in other respects, would be to compel parties to come into court with hands so far clean, at least, that the opposite party is not entitled to the same redress

divorce, neither party has. The court must discriminate between them; must say which is the injured party, and which is entitled to relief. Neither the legal inference can be drawn as to both, nor the remedy applied to both."

Discussing the necessary facts to maintain a decree for either party, Judge Bliss says in the above case (43 Mo. loc. cit. 551), and referring to the rule requiring the court to look into the conduct of both husband and wife:

"This rule does not apply to conduct, however reprehensible, that would not entitle the other party to a divorce. His or her conduct must come within some of the cases enumerated in the statute. We are strongly of the impression, from the examination of the record, that the circuit court must have extended the rule too far; that, finding as it reasonably might that the defendant had been guilty of improper conduct, that she indulged in outbursts of temper, was a scold, etc., she was not considered 'the injured party,' although her conduct was not bad enough to entitle him to a divorce. If she had absented herself from him without reasonable cause for the space of one year, or if she offered such indignities to him as rendered his position intolerable, then her conduct was a clear offset, so to speak, to his; she is not the injured party,' even though she made the case against him."

The result was that the Supreme Court remanded the cause for a new trial. This case of Hoffman v. Hoffman is referred to by Judge Rombauer, speaking for our court in Owen v. Owen, 48 Mo. App. 208, as the "last direct and controlling decision of the Supreme Court on that subject," and one which our court is bound to follow. So it has always been held that it must appear that one seeking divorce must appear to be the innocent and injured party. See, for example Morrison v. Morrison 62 Mo. App. 299; Lawlor v. Lawlor, 76 Mo. App. 637. Plaintiff's account of his own good conduct practically meets this.

Applying this test to the testimony introduced in behalf of defendant under her answer, which was a general denial and not a cross bill asking affirmative relief, are the acts so testified to sufficient to show that the plaintiff was not the "injured and innocent party" or, to put it in the language of the present statute, was not the "injured party," or, adopting, in substance, his own averment, was he an affectionate husband and had he discharged his duty as a husband?

We have concluded, on a very careful examination and reading of the whole testimony in the case, introduced by both parties, that the evidence tends to show that he did. and that the acts relied upon by the defendant as showing the misfeasance of the plaintiff were either not proven or, almost without exception, brought on by her own conduct. As we read the testimony in the case, from almost the beginning of the marital relations