(216 S.W.) It is at this point that defendant claims that the agency contract of plaintiff was terminated, and this claim is based on the fact that, because Williams refused to make part payment or put up a forfeit, both plaintiff and defendant "declared the deal off." By this, however, these parties merely meant to decline to tie up defendant's land or to bind themselves to make a future deal when Williams refused to bind himself. They did not mean that if Williams returned within two weeks or at any time, and the land was still unsold, they would refuse to sell to him on the terms specified. Nor did defendant act on such theory, for when Williams did return in a few days and went to see defendant, he at once supposed he had come to take the farm and was willing to close the deal on the terms previously agreed upon. Defendant in his brief admits that, if Williams had then taken the land for himself, plaintiff by reason of having procured him as a purchaser would have earned his commission. Plaintiff's agency was not terminated, therefore, so far as a subsequent deal with Williams would entitle him to a commission. At this time, however, Williams openly disclosed to defendant that he was not wanting the land for himself, but asked defendant if he would pay him a commission to find a buyer. On defendant's assenting to do so, Williams disclosed that his man was close at hand, and the next day produced Welsh as the purchaser. Welsh admits that he and Williams went to Dent county together to purchase this farm. A deal was therefore easily arranged by which Welsh purchased the farm for $13,500, or $500 more than defendant had agreed with Williams. No other explanation of this is made, other than that defendant paid Williams a commission which left him substantially the $13,000 he wanted for his farm. Welsh also bought the defendant's personal property on the farm, but that seems whether, after plaintiff's employment to sell [liams was bargaining this (defendant's) farm the farm for a commission, such contract was for Welsh in place of the Heller farm, as by agreement canceled or terminated before Williams had wanted a commission to put the farm was sold to Welsh. This theory was through the Heller deal, and subsequent evipresented by defendant's first instruction, and dence proved this correct. the jury doubtless found for defendant on that theory. This, we think, was an erroneous theory, and this instruction, under the facts presented, should not have been given. Plaintiff is a real estate broker residing in Dent county, where the defendant lives and the farm in question is situated. The sale of this farm grew out of plaintiff's efforts to sell another farm in that county known as the Heller farm. The purchaser, Welsh, was first attracted to Dent county by plaintiff's advertisement of the Heller farm. On inspecting that farm at plaintiff's instance, he agreed to buy it and put up a forfeit of $500 to bind the bargain. Williams, who might well be termed the villain in the play, resided in the same county in Illinois as the purchaser, Welsh, and was something of a real estate agent himself. Just how he got into the deal is left to conjecture, but some two weeks after Welsh had agreed to purchase the Heller farm, for which plaintiff would have received a commission, Williams came with Welsh to Dent county and looked over the Heller farm, and they returned to Illinois without closing that deal. Something more than a month later, Williams returned to Dent county alone. He at once gave it out that Welsh would not or could not take the Heller farm and would rather lose the $500 forfeit. While Williams was there, plaintiff received from Welsh a letter to this effect. Welsh, who testified for defendant, admitted with much reluctance that he knew Williams was going to Dent county at that time, and that they had talked of his not taking the Heller farm, though he would lose the $500 forfeit, and admitted that the real purpose of Williams coming at that time was to secure a reduced price on the Heller farm by threatening that Welsh would quit the deal. Williams offered to buy the Heller farm himself at a reduced price, $17,000, and offered to put up $1,000. Williams, however, was really acting for Welsh, as Welsh admitted in his evidence that there was an understand-to be immaterial. ing between him and Welsh "that he (Wil- [1] It seems to us that as, if William's had liams) was to come down here and see if he returned and taken the land for himself, decould get the farm cheaper." Heller, how- fendant would be liable for plaintiff's comever, refused to reduce the price, and that mission, so too would he be when Williams deal ended. On this same trip, Williams returned with his friend Welsh as a purlearned that defendant's farm was for sale chaser and disclosed that he was bargaining by plaintiff as agent. Plaintiff took Williams for him instead of himself. Defendant then to see this farm, and Williams, pretending knew that Williams' acquaintance with him that he wanted to buy for himself, made de- and with this land was brought about by fendant an offer of $13,000 for the farm, plaintiff, and that Williams' proposition to which defendant agreed to accept. Williams, find a purchaser instead of becoming one however, wanted two weeks within which to himself was a mere sham, since such purclose the deal and was not willing to put up chaser was already at hand. We must, of any forfeit or part payment on this farm. course, look at the situation from defendant's Plaintiff says he knew at this time that Wil-viewpoint; but he knew that Williams was Because of the errors above mentioned, the case will be reversed and remanded. FARRINGTON and BRADLEY, JJ., con plaintiff's customer and any sale to him FARRINGTON, J. (concurring). I concur in reversing and remanding this judgment, because, as I read the record, there is sufficient evidence to support a finding that Williams was Welch's agent all through the negotiations, and that, when plaintiff was calling Williams' attention to defendants' land. he was in fact calling the attention of Welch to that land through his agent, Williams. The plaintiff therefore procured the purchaser, Welch, through his (Welch's) agent, Williams. (202 Mo. App. 242) [2] That defendant was liable for the commission when plaintiff was the means of finding the purchaser and bringing about the negotiations leading up to the sale, though he was not present or partaking in the actual sale, is clearly the law. Weidemeyer v. Woodrum, 168 Mo. App. 716, 721, 154 S. W. 894; Park v. Culver, 169 Mo. App. 8, 11, 154 S. W. 806; Tyler v. Parr, 52 Mo. 249, 251. Plaintiff might properly criticize defendant's instructions for requiring plaintiff to be the procuring cause of the sale rather than merely the procuring cause of finding the pur- 1. MUNICIPAL CORPORATIONS 975-PRIORchaser, but plaintiff's second instruction contained the same error. MISSOURI REAL ESTATE & LOAN CO. v. (Kansas City Court of Appeals. Missouri. ITY OF TAX BILL LIENS. As between two or more liens for general taxes due city or state, the last one in point of time is the superior in point of claim for satisfaction. 3. MUNICIPAL CORPORATIONS 975-PRIORI TY OF GENERAL TAX LIEN AS AGAINST TAX Lien founded on general taxes levied for the support of the city held superior to special improvement tax bill lien, though subsequent in point of time. Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge. As between two or more general city tax [3] The record discloses that, on the day bill liens, the last one in point of time is the the sale was really made to Welsh, plaintiff superior in point of claim for satisfaction. telephoned to defendant to know if "those 2. TAXATION 510-PRIORITY OF TAX LIENS. fellows" came to see him yesterday. Defendant replied: "Yes, and also to-day." Defendant says, though plaintiff denies this, that he then said, "Mr. Hodges, if I made a deal with them, you would not think of claiming a commission on that deal, would you?" to which plaintiff replied: "Oh, no; go ahead and make it." Plaintiff says that, when he first phoned, he was ignorant of Welsh being in the country and only asked defendant if he was dealing with Williams, and defendant said that he was not. However this may be, it is admitted that in a few minutes thereafter plaintiff again called defendant and told him that, if he was dealing with either Williams or Welsh, he would claim a commission, and that defendant then said that the deal was already closed. held in Weidemeyer v. Woodrum, 168 Mo. App. 716, at page 720, 154 S. W. 894, defendant was not prejudiced or led to act differently than he would otherwise by this telephoning, for defendant had in fact on the' previous day agreed to pay Williams a commission and had in effect already closed the sale. Defendant himself disclaims that his theory of a cancellation or termination of the plaintiff's agency before the sale was made is based on this subsequent telephone conversation. As [4] The plaintiff now claims that under the stated facts he is entitled to a verdict, and that the court should have given a peremptory instruction to find for plaintiff. No such instruction, however, was asked for, and Action by the Missouri Real Estate & Loan Company against Albert L. Burri and others, to enforce lien of a special tax bill. One Landis answered, claiming superior lien, and, from adverse judgment, he appeals. Reversed and remanded, with directions. Spencer & Landis, of St. Joseph, for appellant. J. E. Dolman and O. C. Hathway, both of St. Joseph, for respondent. ELLISON, P. J. Plaintiff's action was instituted to enforce a lien of a special tax bill against lot 23, block 19, Brookdale addition, issued by the city of St. Joseph and dated January 20, 1916. There was a sale for delinquent taxes due the city, held on the 16th of November, 1916, following the issuance of the tax bill, at which defendant Landis purchased this lot and received from the city treasurer and ex officio collector a cer (216 S.W.) ing contrary to that of the St. Louis Court of Appeals found in Parker-Washington Co. v. Corcoran, 150 Mo. App. 188, 129 S. W. 1031. The Supreme Court took our view as expressed by Trimble, J., who wrote the opinion. In that case (264 Mo. 700, 175 S. W. 972) Judge Trimble said that setting up the claim that his lien, being preme Court by reason of our conclusion befounded on general taxes levied for the support of the city, was a superior lien to the tax bill, though subsequent in point of time. There was no contest over the legality of the proceedings by which the tax bill was created. It was admitted that the tax bill "was issued in all respects according to law and for the proper amount as stated therein." The only contest was over the question whether the lien of Landis, as the holder of his certificate of purchase under the delinquent tax sale, was superior or inferior to the lien of the tax bill. "It is true, general taxes are levied for the support of the government, and in that sense general taxes are the more important of the two, and ought to take precedence over special taxes, so that the lien of a general tax ought to be prior to the lien of a special tax, even So it was said in McCollum v. Uhl, 128 Ind. 304, 308, 27 N. E. 152, 154, that— "The lien of the state for taxes is paramount [1, 2] For present purposes, we may say though the latter be prior in point of time." that as between two or more tax bill liens, the last one in point of time is the superior, in point of claim for satisfaction. And the same is true between liens for general taxes due city or state. Jaicks v. Oppenheimer, 264 Mo. 693, 175 S. W. 972; Construction Co. v. Ice Rink Co., 242 Mo. 241, 146 S. W. 1142, 40 L. R. A. (N. S.) 119, Ann. Cas. 1913C, 1200. But it will be noticed that the present is a contest between the lien of a subsequent general city tax, levied for the support of the city government, and the lien of a prior special tax bill issued to a private party. They are both referable to the power of taxation, but they compose two different classes. Which is the superior? Neither of the two cases just cited are like this. The first involved the question whether the lien of the last tax bill was superior to prior tax bills. The second involved the question, Which was the superior lien, a prior deed of trust, or a subsequent tax bill? The decision in each was in favor of the superiority of the subsequent lien, but neither decide the case before us. and is superior to the lien of the ditch assessment." In State v. Kilburn, 81 Conn. 9, 69 Atl. 1028, 129 Am. St. Rep. 205, it was held that a special sewer tax assessment by a city could not be given preference over a prior school fund mortgage authorized by the state. At the close of the opinion (81 Conn. 13, 69 Atl. 1030, 129 Am. St. Rep. 205) the court in referring to special assessments, said: "They are imposed by authority of the state, and by a political agency of the state, which, so far forth, participates in the exercise of its sovereignty. But because a city to that extent shares in the privilege of a sovereign to command a preference over ordinary creditors, it does not follow that it can command it as against the sovereign itself." (Italics ours.) adjudges that the special lien created by plaintiff's tax bill is "superior to any lien of the defendants herein." On the contrary, the court should find and adjudge that plaintiff's lien is inferior to Landis' lien. Accordingly it is ordered that the judgment be reversed and the cause remanded, with directions to enter judgment in accordance with this opin As the lien for the subsequent general city tax is superior to that of the prior special tax bill, the judgment should be reversed in so far as it finds that the lien of plaintiff's [3] It must be conceded that a general tax, special tax bill "is superior to the tax certifiwhich has primarily for its object the sup-cate of said defendant W. A. Landis," and port of the government, whereby the government may exist, and lives and property may be protected and the pursuit of happiness guaranteed, is of greater dignity and more importance than a tax bill issued for public improvements. It is true that a general tax is frequently levied for public improvements. But it is not feasible to levy a special tax, of the nature here involved, for what we un-ion. derstand to be meant by the expression, "support of the government." We can subsist without the special tax, but no civilized government could be organized and maintained without the general tax. So we conclude that the general tax, being first in vital importance, should be allowed first place in the means of payment. As And this, we think, is more or less recognized in each of the cases cited above. already stated, the point here was not involved in those cases. Nevertheless, the discussion of them naturally covered a reference to the question we are now considering. The Jaicks Case was decided by this court (168 S. W. 216), but certified to the Su The other Judges concur. STATE v. MILLER. (No. 2522.) Missouri. 191(4) INDICTMENT AND INFORMATION A conviction of common assault, as defined in Rev. St. 1909, § 4484, will be sustained under an information charging assault with intent to kill. Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Robert J. Miller was convicted of common assault, and he appeals. Affirmed. O. A. Cook, of Portageville, and Geo. H Traylor, of New Madrid, for appellant. cient help was not such as to threaten immediate injury, and the servant by reason of his foreman's order was led to believe that he could carry his part by the use of care, and he proceeded to do the work with the exercise of S. J. Smalley, of New Madrid, for the care, he is not barred from recovering. State. FARRINGTON, J. This is an appeal by defendant from a judgment of conviction for common assault. The only matter that is brought before us is the record proper; appellant having failed to bring a complete transcript of the evidence and instructions had in the lower court. The information is in due form, charging the offense as defined in section 4481, R. S. 1909; that is, assault | with intent to kill. The cause was tried before a jury. The names of the state's witnesses are properly indorsed on the back of the information which was filed by the Prosecuting Attorney of New Madrid county. Defendant waived arraignment and entered a plea of not guilty. D. C. Barnett, Special Judge. "Not to be officially published." Action by W. F. Tull against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant appeals. firmed. Af Cyrus Crane, of Kansas City, John A. Davis, of Harrisonville, and Hugh E. Martin, of Kansas City, for appellant. T. N. Haynes, of Harrisonville, for respondent. BLAND, J. This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $200, and defendant has appealed. The record shows that the jury returned a verdict finding defendant guilty of common [1, 2] The only point raised is that the assault, assessing his punishment at $100. court erred in refusing to sustain defendant's Judgment of sentence was imposed on the de- demurrer to the evidence. The facts show fendant, and an order that he be committed that plaintiff was employed by defendant as to the county jail until the fine and costs were a section hand, and on the day in question he satisfied. While a copy of a motion for new and his foreman were engaged in picking up trial is in the record before us, none of the and piling ties along defendant's roadbed. evidence or instructions are here for us to They had handled about 30 ties that day, examine. It has been held repeatedly that a prior to the accident, when they came to the conviction of common assault, as defined in last tie, which was located farther down the section 4484, R. S. 1909, will be sustained un-embankment than any they had previously der an information charging assault with in-handled and was larger than the others. tent to kill. State v. Wilson, 126 Mo. App. 302, 103 S. W. 110. Finding no error in the record before us, the judgment will be affirmed. STURGIS, P. J., and BRADLEY, J., con cur. The embankment was steep, and snow and ice had accumulated at the point where the tie was lying. It was lying about 16 feet below the top of a 30-foot embankment. This tie was of oak, and was a little over 8 feet 1 inch in length, 11 inches across, 10 inches thick and weighed from 280 to 300 pounds. The foreman told plaintiff that they had to TULL v. KANSAS CITY SOUTHERN RY. bring this tie to the top of the embankment CO. (No. 13052.) (Kansas City Court of Appeals. Dec. 1, 1919.) and pile it up with the rest. Plaintiff testified that when he picked up his end he said, Missouri. "This is awful heavy; I don't believe I can get up the hill with it." The foreman then As- said, "We have to." They then started up the embankment with it, and plaintiff slipped and fell, injuring himself, and the foreman said, "A 14 year old boy could carry that." 1. MASTER AND SERVANT 288(16) SUMPTION OF RISK OF INJURY FROM INSUFFICIENT HELP QUESTION FOR JURY. Where from the evidence jury could say that plaintiff fell by reason of not having sufficient help to carry a tie up a steep and slippery embankment in obedience to his foreman's order, he did not assume the risk as a matter of law. 2. MASTER AND SERVANT 226(1)—Risk or INJURY FROM MASTER'S NEGLIGENCE NOT ASSUMED. Plaintiff had worked some time as a section hand, and was more or less experienced in the work of handling ties. He weighed 187 pounds, and was a reasonably stout man. After the foreman told plaintiff that they could carry the tie up the hill, plaintiff thought that they could safely do it, although he had expressed doubt about it be A servant does not assume the risk of the fore. They had not proceeded far before master's negligence. 3. MASTER AND SERVANT 222(2)—AssumPTION OF RISK OF INJURY FROM OBEDIENCE TO ORDER. If the danger of carrying a tie to top of a steep and slippery embankment with insuffi plaintiff was thrown by reason of the weight of the tie and of the steep and slippery embankment. The negligence alleged in the petition was that defendant negligently failed to furnish a sufficient number of men under the circum 2 (216 S.W.) stances to assist in carrying the tie up the embankment, and that the foreman negligently ordered plaintiff to carry the tie up without the assistance of a sufficient number of men; that by reason of the great weight of the tie, the slippery and dangerous condition of the embankment, and the lack of sufficient help, plaintiff fell, resulting in his injury. It is urged that under the circumstances plaintiff as a matter of law assumed the risk. We think there is nothing in this contention. From the evidence the jury could say, although there was no evidence as to the number of men that were usually furnished for the work, that under the circumstances shown in evidence plaintiff fell by reason of not having sufficient help to carry the heavy tie up the embankment. The negligence of the master having been shown, the rule that the servant never assumes the risk of the master's negligence applies. "If his master furnishes him unsafe implements and he uses them, knowing them to be unsafe, a question of contributory negligence arises, but not of assumption of the risk." Cole v. St. Louis Transit Co., 183 Mo. 81, 94, 81 S. W. 1138, 1142; Garner v. K. C. Bridge Co., 194 S. W. 82, 85; Bowman v. K. C. Electric Light Co., 213 S. W. 161, 164. tion and summons, ordinarily termed substituted service provided for by section 1778, R. S. 1909. The case is before us on a second appeal by the defendant. The first was disposed of by this court in an opinion by Bland, J., reported in 209 S. W. 551, wherein the judg ment was reversed, and the cause was re [3] It is not enough that plaintiff had rea-ery to him in that state of a copy of the petison to believe that there was an insufficient number of men to do the work, and that his strength was not equal to the task. For if the danger or risk of doing the work was not such as to threaten immediate injury, and plaintiff by reason of the order of his foreman was led to believe that he could carry his part of the load by the use of care and cau-manded for further proceedings on the ground tion, and he proceeded to do the work with the exercise of such care, he is not barred from recovery from the master for the injury received. McMullen v. M., K. & T. R. Co., 60 Mo. App. 231, 241; Thorpe v. Mo. Pac. Ry. Co., 89 Mo. 650, 663, 2 S. W. 3, 58 Am. Rep. 120; Stoddard v. St. Louis, K. C. & N. R., 65 Mo. 514, 520, 521; Devore v. St. L. & S. F. Ry. Co., 86 Mo. App. 429; Bollmeyer v. Eagle Mill & Elevator Co., 206 S. W. 917, 918; Bowman v. Light Co., supra. that the petition and summons were delivered to the defendant less than "20 days before the commencement of the term" at which the defendant was required to appear, and therefore the statute was not complied with. Upon the remanding of the cause, plaintiff procured new process to be issued, and the same was personally served upon defendant in Illinois in proper time, and return thereof was made under the provisions of said section 1778. The petition discloses that plaintiff and defendant were married in Missouri, and lived in this state for a number of years, when the defendant deserted his wife and went to Wayne county, Ill., and took up his residence there; that plaintiff followed him and took up her residence there also; that defendant (Kansas City Court of Appeals. Missouri. Dec. refused to support plaintiff, and she thereup 1, 1919.) on brought a suit to compel him to do so; that defendant was served with process DIVORCE 167-SUIT TO SET ASIDE JUDG- therein, and at his instance the case was con MENT MAINTAINED ON PERSONAL SERVICE tinued from time to time; that while plainWhere, after husband and wife had each tiff and defendant were both residents of obtained a separate domicile in another state, Wayne county, Ill., each having a separate, husband came into the state of matrimonial but not a matrimonial, domicile therein, the domicile, and by fraud obtained a judgment of defendant surreptitiously and without plain For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |