The an element of the offense to be shown, and | statute a necessary element of the offense, which does not rest in presumption, but re- may yet be presumed. quires upon the part of the state affirmative proof. State v. Kelly, 245 Mo. loc. cit. 493, 150 S. W. 1057, 43 L. R. A. (N. S.) 476; State v. McMahon, 234 Mo. 611, 137 S. W. 872. In many jurisdictions the view is taken that the previous chaste character of the female carnally known is to be presumed, and that no affirmative proof of this fact is required. 33 Cyc. 1482. In view of the plain language of our statute, considered in connection with the universally entertained presumption of defendant's innocence, such a rule is not even respectable nonsense. [8] Moreover, the point urged is not well taken in this case for another reason: defendant offered evidence of specific acts of intercourse on the part of prosecutrix. The latter evidence had the dual effect of negativing proof of an element necessary to constitute the crime charged and to impeach the prosecutrix as a witness. Therefore, upon the latter phase, if upon no other, the state was justified in offering in rehabilitation countervailing proof of good reputation. Upon both grounds, or upon either, the admission of this evidence of prosecutrix's general reputation for chastity was not error. [9] III. The testimony offered by defendant consisted of (1) a categorical denial of the intercourse, (2) of proof of general reputation of good character, and (3) of an alibi; that is to say, that he was, upon the specific dates at which prosecutrix claimed the several acts of intercourse took place, elsewhere than in her company. No instructions were given by the trial court upon either the alibi or defendant's previous good character. No complaint is anywhere made of the neglect of the court to instruct upon the alibi sought to be proved. Complaint is made in the motion for a new trial of the failure of the court nisi to instruct upon defendant's preBut no exception, vious good character. either special or general, was saved to the action of the trial court in failing so to in struct. [6, 7] While "character" and "reputation" are not synonyms of each other, for character connotes that which a person really is, while reputation is what public opinion thinks he is or reputes him to be, yet unquestionably reputation is some evidence of character. Therefore, since the actual status as to prior chastity, and not the mere repute thereof, is involved, and since previous chaste character is an element of this crime, specific prior acts of sexual intercourse may be shown to negative such character. The lack of such specific acts may therefore be shown to prove it. While for this latter purpose the testimony of the prosecutrix is competent (and, as is always to be expected, she denied all previous acts here), no reason is seen why, in corroboration of her testimony, her previous good reputation may not be shown. Indeed, barring her own denial of acts negativing such prior chastity, it is difficult to see how even a prima facie case could ever be made unless resort is had to testimony of general reputation for chastity. In the wholly analogous case of impeachment of a witness because of his bad general reputation for veracity, the ultimate fact sought to be shown is that he is untruthful, i. e. that his character touching truth-telling is bad. We may, it is wholly settled, prove such bad character for veracity by proof of bad general reputation for ve racity. Likewise, we permit a defendant on trial to make proof of his good character by offering evidence of his good reputation. We conclude that it was not error to admit evidence of prosecutrix's general reputation for prior chastity as a circumstance tending to prove her previous chaste character. 2 Wigmore on Ev. 1620. Again, we concede that this rule is opposed to that prevailing in a number of other jurisdictions, where it is held that, while specific acts of intercourse may be shown to negative previous chaste character, yet general reputation for unchastity may not. In most of the jurisdictions wherein this view is taken the almost insuperable difficulty in making affirmative proof of previous chaste character (to which such a rule would inevitably lead) is overcome by a resort to the heresy that previous Other alleged errors are called to our atchaste character, even though it be made by tention. All these have been examined and 207 S.W.-53 The statute, for reasons which were no doubt sufficient to the Legislature, requires, in terms, that the instructions given by the trial court in criminal cases "shall include, whenever necessary, the subjects of good character and reasonable doubt." Section 5231, R. S. 1909. We have held that the words "whenever necessary," as used in the above statute in reference to the subject of good character, mean that an instruction on such good character should be given whenever there is any substantial evidence of general reputation of such character offered in the case. State v. Anslinger, 171 Mo. loc. cit. 607, 71 S. W. 1041. The record before us is replete with testimony that defendant's general reputation in the community in which he resided was good upon the specific phase of character involved in this prosecution. Upon this point a cloud of witnesses were called and gave evidence of the fact. Indeed, so many were offered that the trial court forbade the calling of others to give cumulative evidence thereon. But since no exception was saved to the act of the court in failing to so instruct, we cannot review this error. State v. Pfeifer, 267 Mo. 23, 183 S. W. 337; section 5245, R. S. 1909; State v. Reed, 89 Mo. 168, 1 S. W. 225, and cases cited. found either to be without substantial merit | ruled, but the question was not answered, and or not to be borne out by the record. Finding no reversible error, the case should be affirmed. Let this be done. 2. APPEAL AND ERROR 930(2) 3. EXECUTORS AND ADMINISTRATORS EVIDENCE 451 IN An instruction that, if the services furnished deceased by plaintiffs were rendered with the expectation on the part of plaintiffs that they were to receive payment therefor, and the expectation on the part of deceased that she was to make compensation therefor, such mutual expectation constituted a sufficient contract held sufficient to require a finding that each party knew of the other's intention, since the word "expectation" implies an agreement. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Expectation.] 4. EXECUTORS AND ADMINISTRATORS 451 INSTRUCTION - In an action by a stepdaughter for services rendered deceased, an instruction that services rendered by one relative to another are presumed gratuitous, and that plaintiff must overcome this presumption, and prove an agreement for compensation existing when services were rendered, held correct. 5. EXECUTORS AND ADMINISTRATORS (2)-ACTION ON CLAIM-EVIDENCE. 451 In an action by deceased's stepdaughter to recover from deceased's administrator for services rendered, held that in view of the evidence it was not error to submit the question of express contract for services. 6. APPEAL AND ERROR 1048(5) HARMLESS ERROR-QUESTION TO WITNESS-FAILURE TO ANSWER. In an action by a stepdaughter and husband for services rendered deceased, where plaintiffs offered evidence that they rendered all the services deceased received, and, after asking witness if neighbors rendered services, as well as if sisters did, an objection thereto was over an objection was sustained to a subsequent question whether any one else assisted "in the smallest way" held that no reversible error was committed. Appeal from Circuit Court, Boone. County; D. H. Harris, Judge. "Not to be officially published." Suit by Sallie M. Shock and husband against R. P. Price, administrator of the estate of Josie Anna Lawhorn, deceased, and others. Upon appeal from the probate court to the circuit court, a verdict and judgment were rendered for plaintiffs, and defendants appeal. Affirmed. Don C. Carter, of Sturgeon, and E. C. Anderson, of Columbia, for appellants. Arthur Bruton and W. H. Hulett, both of Centralia, for respondents. TRIMBLE, J. This is a suit in support of a demand against the estate of Josie Anna Lawhorn, deceased, for services rendered and board furnished her during her later years by her stepdaughter, Sallie M. Shock, and by the latter's husband. As filed, the claim set forth that the services began in 1908 and continued through the years, with short intervals intervening, down to the day of the stepmother's death, to wit, December 5, 1916. The demand was filed May 7, 1917, and the cause was tried in the probate court and taken thence on appeal to the circuît court, where it was tried anew. Here, after the taking of testimony had begun and some general preliminary questions had been asked, defendant objected to any evidence of services rendered, for the reason that all services rendered more than five years prior to decedent's death were barred so far as the plaintiff husband was concerned, and the items for services were so intermingled that it was impossible to determine whether the services were rendered by the one or the other of the plaintiffs. The court remarked that it could not, at that stage of the evidence, tell whether the part of the account for the services prior to the last five years of deceased's life was barred or not, but that the matter would be controlled by instructions. Thereupon the evidence was heard pro and con, plaintiff's evidence covering the services beginning in 1908 and continuing to Mrs. Lawhorn's death. The court, in the instructions, clearly and expressly told the jury that, if they found for plaintiffs, then, in determining what compensation, if any, was to be allowed plaintiffs, the jury should confine themselves to items accruing after December 5, 1911, thus excluding all items prior to the last five years of decedent's life as barred by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes statute. Plaintiffs obtained a verdict and "expectation" as here used connotes and judgment, and defendant appealed. [1, 2] Defendant says that error was committed in admitting evidence of services rendered prior to the five years, as the court afterward found they were barred. The basis of this complaint is that by such evidence in relation to the prior years the jury was prejudiced, and, knowing that plaintiffs had rendered services for three years for which their right to recover pay was denied because barred, the jury was likely to make the loss up to plaintiffs by allowing them ample compensation for the time not barred. There is no ground for the defendant's contention. In the first place, whether the first years of the account were barred or not depended upon the proof as to whether it was an open running account, and whether all the items constituted one demand. If the evidence was such as to raise an issue on that question, it would have been a matter for the jury to determine. How could the court intelligently rule on it until after the evidence was all in? In the next place, there is no evidence nor inference that the jury disobeyed the express and positive instructions of the court that they should confine themselves to the items rendered after December 5, 1911, and, if they found for plaintiff, return a verdict only for what they were reasonably worth. implies an agreement, especially as, with reference to the deceased, the "expectation" on her part is that "she was to make compensation." This phrase includes more than a mere secret intention on her part to pay, and implies that she understood the plaintiffs' intentions, and that an obligation rested on her to meet them. Plaintiffs' instruction No. 3 required the jury to find, before they could return a verdict for plaintiff, that the services were rendered and board was furnished, and were "knowingly" accepted and received by deceased under such circumstances "as to show that both plaintiffs and the deceased intended that compensation was to be made for such services and board," etc. If, however, there be in the instruction any vagueness or lack of definite clearness on this feature, it was fully cleared away by defendant's instruction No. 3, which, after telling the jury that services rendered by one relative to another are presumed to be acts of gratuitous kindness, with no intention to charge therefor, and that it therefore devolved upon plaintiff to overcome this presumption and show by the greater weight of the evidence that the services were not rendered gratuitously, but, on the contrary, that at the time plaintiffs rendered the services claimed for they intended to charge, “and that such deceased knew of such intention on the part of plaintiffs at the time to so charge therefor, and that she intended to pay for the same, and, unless you so find, your verdict must be for the defendant." The instructions given for plaintiff are supported by the following authorities: Stone v. Troll, 134 Mo. App. 308, 311, 114 S. W. 82; Kingston v. Roberts, 175 Mo. App. 69, 157 S. W. 1042; Hartley v. Hartley, 173 Mo. App. 18, 155 S. W. 1099. [5] The deceased became Mrs. Shock's stepmother when the latter was a girl 12 years old. She afterwards married and moved to a farm. In 1901 the deceased's husband, Dr. Lawhorn, died, and in 1906 plaintiff and her husband moved to Centralia, and [3, 4] The complaint is made that, in defining what was necessary to create an implied contract between plaintiffs and deceased that the former should receive pay, and the latter would pay, for the services rendered, plaintiffs' instruction No. 1, although requiring the jury to find that at the time the services were rendered and board furnished the plaintiffs intended to charge and the deceased intended to pay, yet it failed to require the jury to find that each knew of the other's intention, or, in other words, that it should also have required the jury to find that the deceased not only intended to pay, but also knew that the plaintiffs intended to charge. Without going into the question of whether a showing occupied a house on the lot adjoining that that at the time the services were ren- on which Mrs. Lawhorn lived. It seems that dered and board was furnished the plaintiffs in 1908 the latter became more or less feeble intended to charge and the deceased intend- and incapacitated, and from then on required to pay would not be sufficient evidence ed care and attention, with the exception of from which the jury could find that each certain intervening intervals. The neighside knew of the other's intention, and that bors say Mrs. Lawhorn was peculiar, in that therefore a contract between them was un- she did not want to hire some one to come derstood and established, yet we are of the and stay at the house, whereby any of her opinion that plaintiffs instruction is not beds would be occupied. The plaintiffs furopen to the charge made. The instruction nished her meals, but even when she was says that if the services were rendered and able she would not eat at her stepdaughter's board was furnished "with the expectation house, but preferred to have her meals at the time on the part of plaintiffs that brought to her on a waiter. She wanted they were to receive payment therefor," and them hot and on time. A cord with bell with "the expectation on the part of deceas-attached was run from one house to the ed that she was to make compensation there- other, so that at any hour of the day or for, then such mutual expectations consti- night she could call for plaintiffs, and they tute a sufficient contract," etc. The word responded whenever called. The evidence is COMPENSATION-ABANDONMENT OF SUIT. ample that they did everything in the way | after having alleged in petition all facts he had of looking after her household and caring or was furnished with, and after having nade for her and for her needs. There is also evi- effort to secure overruling of demurrer upon indence tending to show that plaintiffs render- timation by court that it was about to sustain ed the services intending to charge therefor, demurrer, such dismissal was not an abandonand that deceased accepted them intending to fight case through to a final determination. ment of the case within contract requiring him to pay for them; also that there was a mutual express agreement and understanding 2. ATTORNEY AND CLIENT 145-RIGHT TO between plaintiffs and deceased that she was to pay. The plaintiff husband owed deceased a note, and there is evidence of a conversation between deceased and him, in which he spoke of paying the interest thereon as he had formerly done, whereupon deceased told him not to pay the interest, but to wait until a settlement was made between them, at which time all matters could be adjusted. There was no error in submitting the question of an express contract. Hartley v. Hartley, supra. [6] The deceased apparently left no children of her own, but had two sisters living in Centralia. The defendant urges that reversible error was committed in the admission of testimony concerning these relatives. In showing that plaintiffs rendered all the services deceased received, they offered evidence that none were rendered by her neighbors or other relatives, and, after asking if 'the neighbors rendered any, proceeded to ask if her sisters did. Objection was made to this, and the court ruled that it was admissible to show that all the services were ren. dered by plaintiffs. No answer was made to the question objected to, and plaintiffs' counsel, acting on the suggestion contained in the objection, omitted all reference to the sisters, and asked what other persons, if any, assisted plaintiffs. No objection was made to this, but when the question was asked if anybody else assisted "in the smallest way," the court sustained an objection made to that as being leading and suggestive. We are not willing to say that, under these circumstances, there was reversible error committed. Appellant cannot rely upon any alleged improper argument made by plaintiffs' counsel as grounds for reversal, since the objection that was made was sustained by the court, and nothing further was requested, and no exception in relation to the matter was saved. The judgment is affirmed. KING v. MANN. (No. 13062.) 1. ATTORNEY AND CLIENT 145-COMPENSA- Where attorney, having agreed to fight case to final determination, abandons case by dismissing it on demurrer before rendition of judgment thereon, he is not entitled to recover compensation for services. 3. ATTORNEY AND CLIENT 167(2)—ACTION FOR COMPENSATION-JURY QUESTION. In attorney's action for compensation after having voluntarily dismissed action on demurrer before court's judgment thereon, whether attorney had made effort to obtain a favorable judgment before dismissing case was for jury. 4. ATTORNEY AND CLIENT 167(2)-ACTION FOR COMPENSATION JURY QUESTION PERFORMANCE OF CONTRACT. In attorney's action for compensation, whether attorney fully performed his contract with client held for the jury. Appeal from Circuit Court, Bates County; C. A. Calvird, Judge. "Not to be officially published." Action by A. J. King against John E. Mann and another. Judgment for plaintiff against defendant named, and the latter appeals. Reversed and remanded. See, also, 199 S. W. 705. W. O. Jackson, of Butler, and J. M. Hull, of Nevada, Mo., for appellant. W. M. Bowker, of Nevada, Mo., for respondent. TRIMBLE, J. This is a suit to recover an attorney's fee. It was brought against two defendants, father and son. The court submitted to the jury the question of the liability of the father, but directed a verdict for plaintiff against the son, the defendant John E. Mann. The jury found in favor of the other defendant, but, in obedience to the court's direction, found against the son. The only question we need consider is the propriety of the instruction directing the verdict. The defendants were stockholders in a meat-packing plant upon which was a mortgage which had been foreclosed and the property sold. Defendants, claiming that the foreclosure was a mere scheme by which the stockholders were to be "frozen" out, employed plaintiff, an attorney, to bring a suit to set aside the sale. There is a dispute between the parties as The plaintiff says to what the contract was. he was to merely bring the suit, and if he For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ment in their favor was ready to be made; and they deny having been told or asked to deposit the money, and say they knew nothing of the case having been dismissed until long afterwards. They say also that plaintiff did not notify them he was going to dismiss the suit, and there is no evidence or claim on the part of plaintiff that he did. [1, 2] Even if the contract be as defendants claim it was, we are of the opinion that, if plaintiff in this case embodied in the petition to set aside the sale all the facts he had or was furnished, and that he then ap lost it in the circuit court he was to have $100, but if he was successful in that court he was to have $200. The defendants say the contract was that the attorney was, in good faith, to fight the case through the circuit court to a full and final determination therein, and if he lost he was to have $100, and if he won he was to have $200. And their defense is that the attorney did not fight the case through to a final determination in the circuit court, but dismissed the same. The contract was not in writing, and the evidence in relation to it was oral. There was evidence tending to support the conten-peared and did all he could to get the court tion of each side as to what the contract to overrule the second demurrer, but was unable to do so, and the court had determined and was about to sustain the demurrer, then plaintiff herein performed his part of the contract, and is entitled to his fee of $100, even though he dismissed the suit before the judgment on the second demurrer was formally entered. In these circumstances the dismissal of the case was not an abandonment thereof before the object of his endeavor and the purpose of the contract was obtained, namely, to obtain the judgment of the circuit court upon the right of the plaintiffs in that suit to have the foreclosure set aside. was. The suit was brought the day the contract was made. A demurrer to the petition was filed on the ground that the same did not state facts sufficient to constitute a cause of action. This was sustained, and thereupon the attorney for plaintiff in that suit took leave to file an amended petition on or before the first day of the next term. This he did, and at the next term of court another demurrer was filed. So much conclusively appears from the records of the circuit court in that case. Said records also show that the second demurrer was filed May 10th, and that on May 14th the cause was voluntarily dismissed by the attorney, the record in said case reciting, "Now on this day comes the plaintiff by attorney and says he will not further prosecute this cause but voluntarily dismisses same." Whereupon it was ordered that the plaintiff therein take nothing by his writ, and that defendants go hence without day and recover their costs. The plaintiff in this suit, after testifying that the contract was as he claims it to be, further testified that he argued against the second demurrer and did all that he could to get the court to overrule it, but that, upon an intimation or announcement from the court that it was going to again sustain the demurrer, he, the attorney, dismissed the cause so as to prevent the impending judgment on the demurrer from becoming a bar to any other suit the plaintiff might desire to bring on the same cause of action; that he, the attorney, knew of no other facts that could be stated to create a good cause. We are not advised as to what it was the petition lacked in order to state a good cause of action; but it does not appear that the attorney neglected to state any fact he had or with which he was furnished, unless it be with reference to the offer or tender of the amount of the purchase price at the foreclosure sale. Plaintiff says he told his clients the court would require them to deposit the purchase price in court to protect the purchaser; but defendants deny this, and say that he told them there would be no necessity of making any deposit until a judg [3, 4] But it will be observed that not only did the terms of the contract rest in parol and were in dispute, but plaintiff's explanation of why the order of dismissal was made after the second demurrer was filed is also wholly in parol, and not only is not admitted, but the records of the court appear to be the other way. The record says plaintiff voluntarily dismissed the suit. But his explanation shows that such voluntary action did not arise until after he had vainly sought to get the court to rule otherwise, and that he then dismissed the case in order that plaintiff in that case could bring another. Hence it seems to us that the peremptory instruction to find for the defendant John E. Mann was tantamount to telling the jury either that the contract was as plaintiff claimed it was, or that plaintiff's evidence as to the dismissal of the case after the second demurrer was filed must be believed. These matters were not mere collateral facts concerning which one party had testified and there was no evidence to the contrary. They were facts necessary to be determined in order to entitle plaintiff to recover. Defendants claimed the plaintiff had voluntarily abandoned the case before it was finally determined, and the record of the court apparently supported that theory. If he did abandon it, and the contract was as defendants say it was, then he was not entitled to recover. Blanton v. King, 73 Mo. App. 148, 150. To meet this, plaintiff by oral testimony attempted to prove that his dismissal was after he had, in fact, obtained the court's judgment in the case, and that the dismissal was solely to |