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II. The preponderance of the competent HARDING V. ST. LOUIS UNION TRUST evidence in the record shows the facts upon CO. (Nos. 19367, 19368.)

which plaintiff's claims are based to be that (Supreme Court of Missouri, in Banc. Dec. 14, living in St. Louis, and about to make a trip

on December 10, 1897, Roger E. Harding, 1918.)

to California to aid his daughter, who had 1. WITNESSES 159(7)—TRANSACTIONS WITH married unhappily and was in dire distress, DECEDENT-REVOCATION OF GIFT.

wrote to his son in New York, informing him In a son's suit against the executor of his of these facts and that he would begin the father's estate to recover street railway bonds, journey on December 18th, adding: testimony of a daughter as to explanations made by her father when, in her presence, he opened teen instead of fourteen R. Ř. bonds in that

"If anything occurs to me, you will find sixhis safety deposit box, tore up the envelope package I told you about in the safe deposit indorsed as the property of the son containing box; the two additional are Suburban; in all the bonds and threw it away, held incompetent. four Suburban, Nos. 96, 176, 179, 181, instead 2. TRUSTS 59(1) - PERSONALTY – REVOCA- of two." Executed trust created in personalty by ex

This letter also inclosed a list of the bonds press declaration and present conveyance to a

and their estimated value at $17,005. definite beneficiary is irrevocable, though volun- On December 17th Roger E. Harding, still tary.

in St. Louis, wrote plaintiff, stating that he 3. TRUSTS CW44(3)-TRUST IN PERSONALTY- did not know what his address would be in EVIDENCE.

Los Angeles, but to write him care of his Trust in personalty created by express dec- daughter, concluding: laration and present conveyance to a definite "The safe deposit box is the same. I have beneficiary can be enforced only on evidence so made no change. No. 1233, same as the numclear, full, and demonstrative as to banish any ber of your residence. Before I went to Europe reasonable doubt as to the existence of every I told you about the 14 bonds, and had you essential element.

take down the numbers. There are now 16 4. Trusts (59(1)-Trusts IN PERSONALTY bonds in the package (all I had); inclose copy -REVOCATION.

of indorsement on package. These bonds are Where decedent, about to travel, wrote son

now worth $17,000 or more." that, if anything occurred to him, he bad placed bonds in an envelope in a safety deposit box

The indorsement referred to in these two indorsed as the property of the son, there was

letters is, to wit: no present irrevocable creation of a trust in (Copy.)

"St. Louis, December, 1897. favor of the son.

“This package, containing valuables, is the 5. TRUSTS 13- VOLUNTARY TRUST EN- property of William H. Harding, of 1233 Dean FORCEMENT.

St., Brooklyn, N. Y., and I hereby direct my Equity does not enforce a mere executory administrator or executor to deliver it to him

Roger E. Harding." agreement for a trust which is wholly volun- unopened.

"Witnesses: tary.

“George E. Harding.

“T. F. Turner. Appeal from St. Louis City Court; Leo S.

"R. D. Rash. Rassieur, Judge.

"Heavy envelope, sealed with five seals." Suit by William H. Harding against the St. Louis Union Trust Company, executor of

[1] After the daughter of Roger E. Hard. the estate of Roger E. Harding, deceased. ing, who lived in California, had been grant. From judgment for defendant, plaintiff ap- ed a divorce, she came to St. Louis with her peals. Affirmed.

father, and he took her to the safe deposit

box and opened it in her presence and took Grant & Grant, of St. Louis, for appellant. out the sealed envelope containing the 16

E. T. & C. B. Allen, of St. Louis, for re bonds and put them back loosely in the despondent.

posit box, tore up the envelope indorsed as

above, and threw it in the wastebasket, makBOND, C. J. I. These are suits by one of ing certain explanations to his daughter why the children of Roger E. Harding against his he did so, which we exclude as incompetent. executor to recover certain street railway The trust officer who opened the safe de. bonds and also the amount collected by the posit box in order to make an inventory aftexecutor upon certain coupons attached to er the death of Roger E. Harding states that said bonds.

it did not contain an envelope sealed and The answer was a general denial, coupled indorsed as described in the memorandum with a plea of the statutes of limitations of sent to plaintiff, and that he thought the 16 five and ten years. Issue was taken by re-bonds were lying loose in the box. ply. The defendant had judgment, and the Roger E. Harding gave plaintiff a house in plaintiff duly appealed.

Brooklyn, $12,500, and $7,000 in bonds for cm For other cases see same topic and KEY-NUMBER in all Key-Numbered.Digests and Indexes

the education of a son of plaintiff and grand-, property was purely temporary and intended son of the deceased, and also made plaintiff only to take effect in case any future mishap, beneficiary of a $5,000 life policy, and by like death, should overtake him before he the terms of his will excluded plaintiff from should return to St. Louis. No more enlighthis estate, stating that he had received allening view of the language used by Roger E. that he was entitled to.

Harding in his letters to plaintiff could be Unless the foregoing facts established a afforded than his own actions in dealing with completely executed trust in the 16 bonds the property therein referred to. He conclaimed by plaintiff, this suit must fail. strued his letters and declarations as their

[2] III. That an executed trust may be language justified; for by the terms of these validly created in personal property by ex-writings and in the light of circumstances press declaration and present conveyance of surrounding the parties they only evidenced such property to a definite beneficiary, and an executory agreement to create a future that, when the trust has been thus complet- trust, for a wholly undisclosed purpose, ed, it is irrevocable, though voluntary, is the which trust agreement should fail upon the settled law of Missouri and elsewhere. nonhappening of the contingency upon which Northrip v. Burge, 255 Mo. loc. cit. 654, par. its completion depended. It being obvious, 2, and cases cited page 674, par. 5, 164 s. therefore, that the evidence relied on by W. 584; Bank v. McKenna, 168 Mo. App. loc. plaintiff did not afford any proof whatever of cit. 257, 153 S. W. 521; In re Estate of Soul. an executed and completed trust, but only ard, 141 Mo. loc. cit. 660, 43 S. W. 617.

tended to show an executory agreement for [3] It is equally elementary that such a

a trust of some kind, to arise upon a future trust can be enforced only upon evidence so contingency, the conclusion is unavoidable clear, full, and demonstrative as to banish that plaintiff was entitled to no recovery in any reasonable doubt from the mind of the

the present case. chancellor as to the existence of every ele

[5] The authorities are uniform (many of ment essential to the establishment of a com- them cited in the briefs of the parties) that plete express trust in personal property. equity never enforces a mere executory agreeNorthrip v. Burge, 255 Mo. loc. cit. 655, and ment for a trust, which, like the present, is cases cited loc. cit. 668, 164 S. W. 584.

wholly voluntary. If the trust had been com[4] It is obvious that the plaintiff's entire pletely executed, as prescribed by law, then case rests upon the terms of three documents, the question of consideration would be of no two letters and the copy of an indorsement moment; but where, as here, no such trust on the package under five seals. If these was shown by the language relied upon to stood alone, aside from the negative and

establish it, it necessarily follows that there explanatory evidence for the defendant, no

could be no decree of enforcement. The obtrust could be decreed, because they show by stacle to any relief in this case arose upon express terms that it was the purpose of the infirmity of the written agreements reRoger E. Harding to create a trust, not in lied upon to support the action. präsenti, but only upon the condition that

No executed and completed trust having some mishap, like death, might overtake him been shown by any evidence whatever, it beon a journey about to be undertaken to Cali- comes wholly unnecessary to speculate as to fornia to assist a married daughter. That what use, or for whose contingent benefit, nothing further was intended by the lan- Roger E. Harding intended to devote the 16 guage of the writings of Roger E. Harding, bonds in case his executory agreement had when read in pari materia, is not only ap- ripened into a fully consummated trust. parent from the contingent terms of the dec

As bearing on his intention not to create laration contained in them, but from the fur- an irrevocable trust, it is also significant ther fact that immediately after his daugh- that he did not by any language or act conter had secured a release from her unfortu- vey any present equitable title to plaintiff nate state he brought her to St. Louis, and nor deprive himself of the full use and conin her presence destroyed the superscription trol of the bonds in question, which the recwhich had been placed upon the package of ord shows he exercised during his life, and bonds to provide for their future delivery to without question by the plaintiff for a period plaintiff upon the happening of the contingen- of 17 years after the date of the letters and cy mentioned in his executory agreement. indorsement relied upon by him to support This contingency not occurring, Roger E. his claim. That these suits present matters Harding opened the package, took the 16 of purely equitable cognizance is manifest bonds and placed them loosely in his safe from what is shown in the record, and, indeposit box, and destroyed the envelope, with deed, is frankly confessed in the brief preits superscription, which had contained them. pared for plaintiff (appellant) where it is This manifestation of the construction given stated that, failing the sufficiency of evidence by Roger E. Harding to the terms of his let- to show “a declaration of trust in which the ters of December 7th and 17th is convinc- deceased, Roger E. Harding, was the trustee ing, as, indeed, the language itself fairly im- and donor," this suit must fail. State ex ports that his agreement as to this personal rel, v. Evans, 176 Mo. loc. cit. 317, 318, 75



S. W. 914; Shelton v. Harrison, 182 Mo. App. tion in arrest, which was overruled, has aploc. cit. 412, 413, 167 S. W. 634, 10 R. C. L. pealed. p. 349, § 99; 1 Pomeroy, Equity (3d Ed.) $ The court below found that the defendant 151; 2 Story, Equity Jurisprudence (14th had voluntarily entered its appearance in Ed.) 88 1300 to 1303, inclusive; Bispham's that court, and, defendant having refused Principles of Equity (9th Ed.) § 49.

to defend, further judgment went against Holding, as we do, that the plaintiff has it. The court, in passing upon the motion misconceived the legal effect of the writings to quash, gave it as his opinion that the case relied on to support his theory, and hence of Advertising Co. v. Castleman, 265 Mo. has necessarily failed in adducing proof of | 345, 177 S. W. 597, settles the law in this any equitable title in him to the property in state that an appeal from the justice court dispute, it follows that the judgment in favor by a defendant waives the question of deof the defendant is manifestly correct, and fective summons and amounts to a general will be affirmed.

appearance of defendant in the circuit court. It is so ordered.

Section 7568, R. S. 1909, provides that an

appeal from the justice court to the circuit WALKER, FARIS, and WILLIAMS, JJ., court operates “as an entrance of appear

ance." Section 7579, R. S. 1909, provides WOODSON, J., not sitting.

that upon such an appeal "the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other

imperfection in the original summons CUDAHY PACKING CO. v. CHICAGO & N. the service thereof." W. RY, CO. (No. 12328.)

The following cases hold that an appeal

from the justice amounts to a general ap(Kansas City Court of Appeals. Missouri.

pearance in the circuit court. Ser v. Bobst, Dec, 2, 1918.)

8 Mo. 506; Boulware v. Railroad Co., 79 Mo. JUSTICES OF THE PEACE Om 161(3)-APPEAL, 494; Gant v. Railway Co., 79 Mo. 502; FitEFFECT AS APPEARANCE.

terling v. Railway Co., 79 Mo. 504; Witting Under Rev. St. 1909, SS 7568, 7579, appeal v. Railway Co., 101 Mo. 631, 14 S. W. 743, 10 from justice court by defendant waives the ques. L. R. A. 602, 20 Am. St. Rep. 636; Rice v. tion of defective summons, there raised on spe- | Railway Co., 30 Mo. App. 110; Carter v. Wacial appearance, and amounts to a general ap- mack, 64 Mo. App. 338; Meyer v. Phønix Ins. pearance by defendant in the circuit court.

Co., 92 Mo. App. 392; Powell v. Railway Co.

(Mo. App.) 178 S. W. 212. The following casAppeal from Circuit Court, Jackson Coun

es hold to the contrary: Brandenburger v. ty; Clarence A. Burney, Judge.

Easley, 78 Mo. 659; Smith v. Simpson, 80 "Not to be officially published."

Mo. 634; Fare v. Gunter, 82 Mo. 522; Meyer Action by the Cudahy Packing Company v. Phænix Ins. Co., 184 Mo. 481, 83 S. W. against the Chicago & Northwestern Rail- | 479; Trimble y. Elkin, 88 Mo. App. 229; way Company. There was judgment for State ex rel. Fairbanks v. Ayers, 116 Mo. plaintiff in the circuit court, on appeal by App. 90, 91 S. W. 398; Bente v. Typewriter defendant from a justice of the peace, and Co., 116 Mo. App. 77, 91 S. W. 397; Hand. defendant appeals. Affirmed, and certified lan-Buck Mfg. Co. v. Chester, P. & Ste. G. to Supreme Court.

R. Co., 167 Mo. App. 683, 151 S. W. 171; and

Swezea v. Jenkins, 186 Mo. App. 428, 171 George Kingsley, of Kansas City, for ap- S. W. 618. pellant.

The St. Louis Court of Appeals, in Powell New, Miller, Camack & Winger, P. E.

v. Railway Co., supra, construed AdvertisReeder, and John Taylor, all of Kansas City, ing Co. v. Castleman, supra, as holding that for respondent.

the taking of an appeal amounts to a gen

eral entry of appearance in the circuit court, BLAND, J. This suit originated before a and we think that the St. Louis Court of justice of the peace. After the return of the Appeals was clearly right in its conclusions constable defendant appeared in the justice to that effect. The St. Louis Court of Apcourt and moved to quash the summons on peals in the Powell Case exhaustively disthe ground that defendant had not been cusses the history of the controversy, and served with process according to law. This clearly shows that the statutes supra can motion was overruled, and, defendant making mean nothing else than that such an apno defense, judgment went for plaintiff, and peal amounts to a general appearance. The defendant appealed the case. In the circuit Powell Case overrules the case of Handlan, court another motion to quash the summons etc., Co. v. Chester, etc., Co., supra, decided on the same grounds was filed, which was by the same court, but it certified the case overruled, and defendant, after filing a mo- to the Supreme Court as being in conflict

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

with the following Kansas City Court of Collector of Revenue of the City of Nevada, Appeals cases: State ex rel. Fairbanks v. County of Vernon, and State of Missouri, Ayers, supra; Trimble v. Elkins, supra—and against J. S. Kennedy. Judgment for defendthe decision of the Springfield Court of Ap-ant, and plaintiff appeals. Affirmed. peals in Swezea v. Jenkins, supra.

See, also, 273 Mo. 122, 199 S. W. 953. We understand that the Powell Case in the Supreme Court was dismissed by the

J. N. Coil, of Nevada, Mo., for appellant. voluntary act of the parties, depriving that

W. M. Bowker, of Nevada, Mo., for respond

ent. court of the opportunity to express itself in no uncertain terms on the point in contro versy.

TRIMBLE, J. A suit for taxes alleged to We are of the opinion, following the cases be due the city of Nevada on "all of block 21 of Advertising Co. v. Castleman, supra, and of Prewitt's addition to the city of Nevada" Powell v. Railway Co., supra, that this de- for the years 1911, 1912, and 1913, amounting fendant entered its general appearance in the in the aggregate to $31.86. Judgment was for circuit court by taking the appeal from the defendant. An appeal was taken by plaintifr justice court, and the cases of Trimble v. to the Supreme Court, but the same was Elkins, supra, State ex rel. Fairbanks v. transferred to this court. Ayers, supra, and Bente v. Typewriter Co., The assessment, petition, and tax bill supra, all decided by this court, are over- described the land as set forth above. The ruled.

defense is that there is no valid or accurate The judgment of the lower court is affirm- description of the property, so as to support ed, but the case must be certified to the Su- the levy and enforcement of the taxes. preme Court as being in conflict with the [1] Some eight years before any of the opinion of the Springfield Court of Appeals attempted assessments involved herein were in Swezea y, Jenkins, supra, and it is so made, a proceeding was had in the county ordered.

court resulting in an order and judgment All concur.

vacating block 21 above referred to, and a certified copy of said judgment was filed in recorder's office May 31, 1904.

This pro

ceeding was had under what is now section STATE ex rel. and to Use of LANCASTER, 9505, R. S. 1909. If this judgment was effecCity Revenue Collector, v. KENNEDY.

tual to vacate the said block, then at the (No. 13054.)

time the assessments were made there was no (Kansas City Court of Appeals. Missouri.

"block 21 of Prewitt's addition," but the land Dec. 2, 1918.)

was the same as if it had never been platted.

There is no attempt to deny that this pro1. MUNICIPAL CORPORATIONS Omw657(5)-VA- ceeding and order were had and made; nor CATION OF STREETS-JURISDICTION.

is the attack upon the validity of the judgRev. St. 1909, 89258, vesting exclusively ment of vacation based upon any of the variin city legislative authorities the vacation of streets and alleys, does not deprive county court ous steps taken in said proceeding. The conof the jurisdiction of vacating a block, given tention of plaintiff is that said county court it by section 9505.

had no jurisdiction to vacate said property, 2. MUNICIPAL CORPORATIONS em 972(3)-Tax- then in the city, but that the power to vacate ES – ASSESSMENT — DESCRIPTION OF PROP

same was vested exclusively in the city leg.

islative authorities by virtue of what is now Where city block was vacated by county section 9258, R. S. 1909. We do not think so. court, under Rev. St. 1909, $ 9505, the assess- The latter applies rather to streets and alleys; ment of the block, by describing it as block 21, while section 9505 applies to additions and was invalid, but should have been made by de- parts thereof, and the proceeding under each scribing land by its proper legal description, is different. Section 9258 does not deprive the which came back into effect when vacation was county court of the jurisdiction conferred made.

by section 9505, nor does it attempt to do so. 3. MUNICIPAL CORPOBATIONS 980(1)_TAX- [2, 3] It is true, in a sense, that the identity ES--ACTION TO ENFOBCE COLLECTION.

of "block 21” was not destroyed by the vacaIn order to support a proceeding to enforce tion, but the legality of that description of by judgment and sale the collection of taxes on

the property was destroyed. The ground real estate, the assessment thereof must be by a itself, of course, remained, and no doubt a valid and accurate description.

surveyor could, by referring to the record of Appeal from Circuit Court, Vernon Coun- the vacated plat, have located its boundaries;

but so, also, could he have determined the ty; B. G. Thurman, Judge.

lines of the land by its proper legal descrip "Not to be officially published.”

tion, which came back into effect when the Action by the State of Missouri, on the vacation was made, and, since it was in this relation and to the use of R. F. Lancaster, status at the time the assessments were

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


made, they should have been made by the Action by the J. C. Lysle Milling Company, proper and valid description then existing. a corporation, against John W. Sharp and In order to support a proceeding to enforce Hugh W. Sharp, doing business as John W. by judgment and sale the collection of taxes Sharp & Son. Judgment for plaintiff, and on real estate, the assessment thereof, which defendants appeal. Affirmed. is the foundational prerequisite to the ya

| Thos. J. Tydings, of Moberly, for aplidity of the taxes, must be by a valid and

pellants. accurate description. We think the judgment should be affirmed.

Willard P. Cave, of Moberly, for re

spondent. It is so ordered. All concur.

TRIMBLE, J. This is a suit for damages

for breach of a contract to purchase flour. J. C. LYSLE MILLING CO. v. SHARP et al. Plaintiff is a milling corporation located at (No. 13024.)

Leavenworth, Kan., and defendants compose

a firm at Moberly, Mo. (Kansas City Court of Appeals. Missouri. Dec. 2, 1918.)

Plaintiff, through its traveling salesman,

took an order, signed at Moberly by defend1. SALES 32 - WHAT CONSTITUTES CON- ants, on August 2, 1917, calling for the shipTRACT.

ment to Moberly on September 30, 1917, of Where defendant signed an order for goods the goods therein specified. The order consubject to plaintiff's approval, and plaintiff con- tained appropriate columns

tained appropriate columns thus headed, firmed and accepted the offer by letter, there

viz. “No. of Bbls.,” “Size P'kage," "Brand," was a completed contract beyond defendant's recall, in the absence of any failure to perform,

"Price," and in each column under its par: or remiss act, emanating from plaintiff.

ticular head the items appropriate thereto

were stated; that is to say, taking the col2. SALES O 23(4)–OFFER TO PURCHASE-AC

umns from left to right in the order in which CEPTANCE.

their headings are above enumerated, the Where defendant signed an order for flour stating, "Ship to Moberly, Missouri," and "All

first line of the list of articles read "105," goods f. 0. b. mill, freight allowed to destina

"48," "Gilt Edge," "13.20,” and the second tion," a letter conurming and accepting such line read, “105," “24," "Gilt Edge," "13.30." order, stating that the flour was to be "deliver | The order stated on its face, "All goods f. o. b. ed to Moberly," did not change the terms of the mill, freight allowed to destination;" also offer.

that the order was "subject to confirmation" 3. SALES 23(4)-OFFER TO PURCHASE-AC- / at Leavenworth. CEPTANCEUN A BASIS."

The order was there received, and on AuWhere defendant signed an order, subject gust 4, 1917, was confirmed by a letter from to confirmation, for a certain amount of flour plaintiff to defendants, which said: at $13.20 per barrel in packages of 48 pounds, and a like amount at $13.30 in packages of 24

“We are in receipt of the order you very kindpounds, a letter, accepting such order, stating, ly gave our Mr. Madge for a car of Gilt Edge “a car of Gilt Edge flour on a basis of $13.20 flour for September shipment on a basis of $13.for Gilt Edge in 48's," did not vary from the 20 for Gilt Edge 48's delivered Moberly. We order; the phrase "on a basis" meaning, accord are very much pleased to receive this order," ing to trade usage, that the basis and minimum etc. price was $13.20 per barrel in packages of 48 pounds each, but that 10 cents additional is

On September 10, 1917, defendants notified required to pay for the cost of extra sacks where,

plaintiff they would not take the flour, and the packages contain 24 pounds each. [Ed. Note.-For other definitions, see Words

refused to permit it to be shipped to them. and Phrases, Second Series, Basis.)

The evidence showed that, whenever plaintiff

contracted to sell a car of flour, it on the 4. EVIDENCE 457 – CONTRACTS OF PUR

* same day bought enough wheat to make the CHASE-PAROL EVIDENCE.

flour thus sold, and that after the contract Parol evidence is admissible to explain what

in suit was breached by defendants the plainterms used in contracts of purchase mean in

tiff sold said flour elsewhere, on defendants' general trade usage.

account, for the best price obtainable, and 5. WAR 4-WAR MEASURES-EFFECT ON

the suit was for the loss sustained; that is, CONTRACTS OF SALE.

the difference between what would have been The war measures embodied in the rules of

received for the flour, had the contract been the Milling Division of the United States Food Administration did not invalidate prior contracts

performed, and what plaintiff did receive to purchase flour.

for it.

The case was tried before the court withAppeal from Circuit Court, Randolph Coun- out a jury. No finding of facts was asked ty; A. W. Walker, Judge.

or made, and no declarations of law were "Not to be officially published."

given and none were asked, except an instruc

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

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