*1 Joseph Security Joseph Bank St v. St. District School E. Strickler Bilby, R. I. Frogge, Frank et al.; (2d) 785. S. W. Appellants. 26 April 7, Two, Division
(1) *2 McN\eely appellants. <& Cross, D. M. E. Ford and Easton E. *4 respondent. Landis, III., G. Landis, Jr., John O. John *5 the suit, in this filed district plaintiff school C.—The ITENWOOD, bank, defendant County, against the of Buchanan Court Circuit Strickler, E'. Bilby, James R. I. defendants and the principal, as bond the sureties, defendants, as other nine Frogge and Frank of sum the bond, in depositary’s a known commonly as bank, of the $45,030.84 loss of and bond of said alleging breach $100,000, bank. insolvency of the of result the as the funds plaintiff’s the of County, where Clay of Court Circuit changed to the was venue The The being jury waived. court, a the before was tried case the judgment and rendered plaintiff the for the issues found court trial sum in the defendants against the and plaintiff the of in favor full in satisfied be bond, to of said amount full $100,000, the of Bilby, I.R. defendants The $42,727.50. of payment appealed. Frogge Frank and E. Strickler the 10, 1925, August that, on petition in alleges its plaintiff of the duly selected was bank defendant ensuing; years next two approximately of terma for its funds of of drafts and checks subject to the were deposited so funds the said faithfully account to agreed bank the and plaintiff, the in deposited funds were said thereon; that, before interest funds and sum in the a bond executed defendants other bank, the the faith- the bank if agreed that, was whereby it sureties, $100,000, should said therein, provided obligations its performed fully the that, on effect; and force full in remain otherwise, to void; be - doors its insolvent, and became bank the May, day of State hands the in placed affairs business its and closed, were deposit in it had on time, said at that, Commissioner; Finance $45,030.84, sum drafts, and checks, its to subject bank, and bank made, the been has therefor although demand and, toor pay refused failed have Commissioner Finance State thereof. any part money or sum of said plaintiff return answers separate their admit appellants, now defendants, doors its insolvent, and 'became bank 1926, the May 12, that, hands placed were affairs business its closed, and were allegations deny all but Commissioner, Finance State state answering, further and, admitted; specifically not petition bank affairs business filed, the suit this time at Commissioner, Finance State hands in the were thereof cent per ten duly allowed funds its claim plaintiff’s distribution in the share continue will plaintiff paid, brought; prematurely suit therefore, and, assets, bank’s bank, deposited were funds plaintiff’s further before defendants, these unknown ai’rangement by some *6 7 executed the bond as sureties, and their execution of the bond was without them; consideration to and further that the bond is illegal, plaintiff’s because the funds were deposited not pursuant to a written contract, and because the bond given was not for a considera- wholly tion to be performed subsequently to the execution thereof; and they further that are not liable as sureties on the bond, because plaintiff’s funds were deposited not in conformity with the terms of the bank’s bid therefor, nor the terms of the bond, and plaintiff’s because the funds deposited were under such conditions as to make plaintiff a preferred creditor of the bank and the plaintiff to failed file its claim preferred as a creditor within the time by allowed law. plaintiff allegations denies the affirmative The of these answers separate in its replies thereto; and, further replying, states that deposited prior the funds approval of the bond involved in this suit, January on 18, 1926, were secured bond, another previously given by bank; and further that the delay in the execution of the bond permitted in suit was request at the defendants and for their benefit for the purpose avoiding of of guaranty forfeiture the bank’s eheck $2,500, bid; attached its and further that these defendants knew, when signed the bond, the time for its delivery execution and had been extended to enable the bank procure acceptable sureties, and, by reason of such knowledge, estopped are denying validity from of the bond, therefor; consideration and further these defendants knew the plaintiff, depositing its funds in subsequently the bank bond, the execution of validity relied bond, thereby estopped denying liability. are from papers (Plaintiff’s
The in suit consists of two Exhibits 8), on one executed October and the other Omitting January statements affidavits of paper mentioned, on the first two exhibits read as sureties these n ; ' n follows: "]
“ PlaiNTipf’s Exhibit 7. op Depositary.
“BoNd Security Bank, Presents, All These That “Know Men doing city business banking duly organized and in the corporation under and County, Missouri, virtue Joseph, of St. Buchanan Reed, W. E. Missouri, principal, of the State the laws Holme, D. Frank Davis, Whitaker, W. M. E. V. Wilson, Veach O. Yarvil, S. Franks, N. Luzzader H. Geo. Frogge, Elmer acknowledge and be in- ourselves to owe sureties, Frogge, W. E. County of Joseph, St. District of School to the debted Hun- penal sum One Missouri, and State Buchanan money of United tbe lawful ($100,000.00), Dollars Thousand dred ourselves, bind we which payment America, for the States administrators executors and successors, heirs, respective our conditions, following to-wit: August, day of 10th Security Bank on “Whereas, said *7 District School of said Directors of by the Board was selected 1925 of funds moneys and all the one-eighth of (1/8) of depositary as (2) years two approximately of a for term District School said separate bid having made a bank selection, said ensuing said next frac- said awarded having been and funds part of said Revised 102 of Chapter 15 of by Article provided part as tional 1919; in consideration year for, the Missouri of State of the Statutes School pay said to agrees bank said appointment, said which of annum, to per per cent one-sixteenth two and of sum District with District School said of daily balances upon the computed be month: each of day first depositary said per- faithfully shall Security Bank The If said therefore, “Now, as such upon it by law devolving obligations and duties form by drawn checks all presentation, pay, and depositary, moneys any funds whenever District School of said treasurer faithr shall and depositary, said inbe shall District School said of Dis- School said moneys of funds all and account keep fully void, otherwise be shall this law, then according to trict force. full remain presents these caused has Bank Security The wherefor, witness, “In attached, hereto seal corporate its by president its signed be by thereto being authorized secretary, its attested sub- hereunto have sureties said bank, said of Directors of Board October, of day 28th seals their affixed names their scribed 1925. HolME, D. E. Bane, SECURITY
“The Frogge, Frank President. E.W. Reed, By Franks, IT. Elmer E.W. Reed, N. Varvil, James WilsoN, Yeach adder, S. Buzz Geo. Y.C. Davis, R.W. Frogge, Whitaker, M.W. Sureties. ^^ "f"fpcj'f(cid:127) A (Seal) Holme, B. “P'. italics.) (Our “Secretary.” Exhibit “Plaintiff’s Depositary. of “BOND Security That Presents, Bank,, These by Men All “Know city doing business organized duly corporation banking Missouri, under virtue of the County, Joseph, Buchanan of St. ,R. A. T- Boyer, and W. principal, as Missouri, State of of the laws acknowledge surety, ourselves E. Strickler Bilby and Joseph, in the District of St. School to the indebted and be owe penal of One Missouri, in the sum of County and State of Buchanan money ($100,000.00) lawful Dollars Thousand Hundred payment which we bind our- for the of America, States United heirs, executors and administrators successors, respective selves, our following conditions, to-wit: August, day 10th Security Bank on the' “Whereas, Said School District of Directors of said by the Board selected 1925, was (of) one-eighth moneys of all the and funds (1/8) approximately (2) years said School District for term two next having ensuing selection, said bank separate said made a bid for one- eighth part having of said funds and been awarded said fractional part provided Chapter Article 102 of the Revised year 1919; Statutes of State Missouri for the in consideration agrees appointment, said bank pay which said said School *8 per per District the sum of two and one-sixteenth cent annum, be to daily computed upon the balances of said School District with said day depositary on of the first each month. faithfully Security perform if
“Now, therefore, said The Bank shall devolving obligations by the duties and law such upon depositary, all presentation, by checks drawn pay, the Treas- any moneys urer said School whenever funds of District or of said depositary, faithfully School District shall be shall said moneys keep for all funds and account of said School Dis- according* law, void, to then this bond shall be trict otherwise to remain in full force. supplemental and coincident with similar
“This bond is Security Joseph, St. School District executed The Bank principal October 28, and other sureties on Security whereof, presents Bank has caused “In Witness The these corporate attached, signed by with its seal hereto its President be being Secretary, by the by its authorized thereto attested and said sureties hereunto bank, Directors said have Board of day of and affixed their seals this 14th their names subscribed January, 1926. Secueity BANK, “The “By (Seal) W. E. President Reed, “W. A. Boyer, Bilby, “R. I.
“ E. StricMer. form:
“Approved as to italics.) (Our Jr.” Landis, C.
“John appellate The issues are issues only, being of law dispute there no as to plaintiff’s the facts. The largely upon case rests documentary evidence offered in connection with the testimony of secretary, attorneys treasurer and one of the of the school board. de- The fendants offered no evidence. plaintiff’s appellants’
The evidence is summarized brief in the following form: letting money
“The biennial of the school School Dis- Joseph, trict of St. under Section Revised Statutes Monday July must each be made on the second odd-numbered year. required is published bids will be be Notice that received secretary twenty days board at least before that date. year calling given bids The notice was for the for on July rejected 13th proper day, and on the board met and all bids. August 10, 1925. secretary call This to issue a new for instructed Security Bank came in date mentioned the was done on the per daily balances for one- and one-sixteenth cent a bid of two bid with a funds, accompanying the check eighth part of the accepted. 11447. This bid $2500, required Section ac- were also part, banks, four each bids of other secretary was in- rejected, and cepted. All bids were other September three-eighths remaining for the call for bids structed to Company subsequent letting Trust the First this 14, 1925. At three-eighths. remaining for the the bidder became accepted its had been bid Security was notified Bank “The 6). This letter (Plaintiff’s Exhibit August 17, by letter dated following: also contained “ required ten you will within be notified that further ‘You are a bond to the School notice to execute days after the date period approxi- to cover $100,000, sum of penal in the District bonds of the designated trustee deposit with a years; or, mately two any Missouri, County or of State of or of the United States *9 be value shall not State, par in whose this District city or School sum.’ penal said less than following made the Board 1926, the School January 18, “On entry its minutes: “ depositary of as $100,000, Security Bank for of the bond ‘The by approved was of the district funds part the vote.’ unanimous to The Securi- returned School Board 1926, the January 20; (On bid.) to was attached its which $2500’ for check guaranty ty Bank the the matter that Board, testified Secretary of the Loving, the “Mr. they (the Securi- but long time quite a for progress inwas a bond of ty also He satisfactory bond. furnish a to unable Bank) been had was the minute when it before papers two had board said the the that papers, and 8 the as 7 and Exhibits identified and made,
11 be a bond purporting- to it papers before no other board bad objected appellants exhibits, and two offered the Plaintiff bonds. petition them, pleadings, the the to they did not conform because be purpoiffed to papers the two obligation, whereas, charging single objection ap- and the overruled The court obligations. separate two objection made that Exhibit was further excepted. pellants This 1926. January 14, 8, 28, 1925, and Exhibit October executed was 7 is Exhibit excepted. appellants and overruled objection was as individuals principal ten and Security Bank by the signed is8 bond. Exhibit on Frogge appears Appellant sureties. R. I. by appellants and principal Security Bank as signed the sureties. E. Strickler Bilby received iBank was Security of the the that bid have seen “We August 17, acceptance dated was its notice of 1925, and 10, August cross-examination: on was asked secretary, Loving, the 1925. Mr. day August, 10th the minutes from the you examined ‘Q. Have Q. To Yes, sir. A. January, 1926? day of 18th the 1925, to Security Bank by the offered any bond or not whether ascertain record of is no There sir. Yes, A. board? the upon acted offered bond the you have minute that first Q. The action. A. January, 1926? day of 18th the Bank is Security by the said further witness action.’ recorded is, of that sir, Yes, 1925) was submitted October dated bond (the Exhibit the discussed, and informally board for the attorney to the declined board and the board with the it attorney discussed any action. take bid, Security Bank 1923, the letting in “At biennial the funds, three-eighths bid, its accepted Board School the Company Casualty Mutual Integrity which on bond gave a January, 1926, day 14th surety. theOn was the Chicago of surety 11) be served (Exhibit notice caused said on also, Security Bank on apparently Board, and School on deposited moneys held be not could parties notifying both letting. new under during a Board School treasurer Randall D. C. “Mr. J. testimony, he his In 1926. July, 1924, to July, from period two-year On dates. various on depositaries several deposits gave was three- which $66,000, had Security Bank 1925, the July same figure was 1st, the August On fund. whole eighths deposit amade 4th, he August On $66,000. 10th), (or July 1st of this $84,000 6th, distribution made $292,708, $150,000 bank in that total making Bank, Security went Security iBank amount same He had date. on that Trust Empire were depositaries his date On September State Co., Mechanics *10 County Trust Buchanan Bank, Security Co., he 2nd, September On Bank. Merchants Drovers Bank, withdrew from Security' $47,000. the $9,000 Bant The $47,000 deposited was Valley in the Missouri Company, Trust ' and this bank was one-eighth a new under the letting August 10th. lie money transferred the when' was he notified Valley the bond of the Missouri Company Trust had accepted. been Security balance on 1, Bank October $84,000. was On November 1, Security the balance in the (cid:127) $30,000. Bank was On November '30, Security the balance in the ' $33,000. Bank Company qualified was The First Trust had three-eighths clearing and had- been made the bank. On January 1, 1926, Security $24,000. January balance in the Bank was On 15, 1926, $21,000. January the balance was On 18th, the balance $99,000. January February was Oh or the balance in the $94,000. Security Bank was analysis figures go
“This is as far as the need pur- poses of this case. The direct examination of the witness continued the, May to' Security where he said the balance in Bank on 12, 1926, day $45,000. closed, was cross-examination, “On the witness said -he carried three- eighths Security September 1, iBank 1925. funds two-eighths. why When he 1st, he carried asked On October Security three-eighths two-eighths, he Bank from dropped the from adjusted according instructions he had fund's said he n secretary’s they entitled to. Dur- office as to the amount were adjustment further was made. On the ing October, a the month of Security $94,000. 12th, On Bank had October, the first of $50,000. date, which On that $44,000 made, was left withdrawal of County Company, Trust from the Buchanan $44,000 withdrew he Security $47,000 from the- Mechanics Bank, and $44,000 from Company Trust was made deposit in the First Bank. first State $50,000 left in each deposit made, When on that date. Com- $150,000'in the First Trust banks, and one-eighth five asked: was then -The pany. witness “ figures any so far as your shows, and ‘Q. record far as So Security Bank equalized you concerned, given you have are. day 12th of Oc- regularly from one-eighth banks with the other they Q. I And A. did. closed? Security Bank time the to the tober ac- not, whether it money, the same carried each They Q. A. sir. Yes, clearing bank. in the cording what was Yes, A. right? on, is that from then same amount carried the .’each ’ sir.’ confirming the his record pages identified witness then “The in evidence received offered were given, figures 12 and Exhibits interese paid Security Bank of time period .“During all it. deposit with funds on the
13 “The Mechanics Bank was a State for the biennial period from 1923 It did not bid for 1925-1927 period. the paid It July (1925) balance, interest on its and pay declined to interest thereafter. kept money It the without interest until October 12, 1925, money when by the was all equalized held it drawn out and as we have seen. Security general
“After the Bank a closed, claim was out made and filed with the Commissioner, Finance $4500 and a dividend of ’’ paid prior was to the trial of case. the pertinent developed
Other by facts plaintiff will 'be noted in questions the discussion presented of our determination.
I. Appellants complain of the admission in .evidence of Plain- tiff’s 7 Exhibits 8 and following manner:- “The two bonds,
Exhibits 7 8, and -are not admissible in evidence counts, under the pleadings. petition a bond. The court received- in evidence two forming separate bonds two of causes action.” True, petition “the counts a bond” by appellants executed and others as sureties, petition but the refers to Exhibits 7 8, and attached thereto, constituting the bond on, predicates sued and recovery upon alleged “agreements an breach of the set out” in Moreover, said exhibits. 8 Exhibit contains a recital which indicates it part 7, that as a of executed Exhibit and two exhibits were offered in in connection-with tending evidence other evidence they show that ivere executed and submitted to the school board as accepted approved one bond and and school board as one tbe. So, plaintiff’s theory, bond. under 7 8 clearly Exhibits and were slumps appellants admissible. adopted plaintiff’s And the record of, question misjoinder theory, separate of vnived causes by answering special action, their on the merits after demurrers ground misjoinder petition to the were overruled. [Hend- 111 W. Calloway, 536, ricks v. 211 Mo. S. 60.] questions to
IioAvever, considered, in view of of the other some be may question AvhetherPlaintiff’s Exhibits it be -wellto discuss appears.,from 7 and bond or two bonds. It constitute one testimony secretary the bank that, school board after of the August 17, acceptance bid, of its “the was notified of the long, quite a time but progress of a bond Avas matter satis- (the bank) furnish a bond unable to officers of the had been 7) October executed factory;” (Plaintiff’s Exhibit bond Frank including appellant 1925, by sureties, the bank and ten board) attorney (for, the school Frogge, “AA-as to the submitted bond, accepting desirability informally as to the discussed taken;” and that this bond any positive character but no action eventually which, was (Plaintiff’s bond 7) part Exhibit “is a January 18, 1926, board on school up approved” finished 9). And Exhibit (Plaintiff’s board by the minutes as shown 8j Exhibit (Plaintiff’s bond so-called be noted will sureties, includ- three bank January 14, executed Strickler, contains E. iBilby and I.R. ing appellants coincident supplemental is bond “This following recital: Joseph, executed of St. District School a similar on October sureties other principal Security Bank by *12 aas recital, taken from clear perfectly It seems 1925.” 28, 8) un- Exhibit (Plaintiff’s instrument to this parties the whole, that be submitted was to it that executed, and was that derstood 7) exe- Exhibit (Plaintiff’s bond the part of board, aas the school “This brief: say in their Indeed, appellants 1925. 28, October cuted idea the apparently this bond into inserted was provision impressed, likewise We are bond.” previous the part a making it obviously the conclude, as we indicated, above reasons for the and, bond, and one constitute instruments two these did, that court trial one board the school submitted executed they were that school andthe bank the between Appellants transaction the II. contend completed" boardhad been approvedby beforethe was bond accepted school board as one bond. executed, and that therefore ``there was no considera- tion for the bond.'' Manifestly, this contention is based a miscon- ception of the contract between the bank and the school board. The plaintiff completed evidence does show that the distribution of funds, depositaries, its in accordance with the 1925 bids of its several 12, 1925, including deposit one-eighth on October of its bank; funds with the defendant the bond sued on was not exe- appellant Frogge 28, 1925; cuted until October and that appellants ]3ilby January was not executed and Strickler until But, being requirements the bond one of the of the con- tract, necessary no new consideration was at the time the bond was deposit executed. The with the defendant bank was made with the understanding promise give the bank would satisfactory bond, and the bank was afforded a liberal extension purpose by grace of time for that by of the school board and not any right right virtue of of the bank under the contract. The o~ contract, the bank to receive the benefits of the one-eighth as a plaintiff's funds, perfected was not until the bond given, and, although plaintiff partly performed had its obligation under the contract before the bond was executed and dclivered, only upon delivery it was the execution and of the bond that complete binding upon plaintiff. the contract became Hence bank, n obligntions imposed upon plaintiff the mutual and the
15
under the contract,
furnished
consideration for the bond, and this
consideration was
appellants
sufficient to bind
as sureties on the bond.
C. J. 362, secs. 225, 226, 227;
[13
Smith v. Molleson, 148
241;
N. Y.
Gage,
Comstock
91
328;
Ill.
v.
Robertson v.
384;
Findley, Mo.
Oberbeck
v
. Mayer, 59
App. 289;
Mo.
Fullerton Lumber Co. v. Calhoun,
App.
Mo.
See, also, 13 C. J. 325,
164;
209.]
sec.
v. Higham,
Green
meaning quoted. statute above The bond was made, not pursuance plaintiff, bank in but of its contract with the plaintiff. plaintiff The contract between bank was made August acceptance 1925, upon bid 10, on bank’s deposit the bank was made on school board. The October and, part, executed, 28, 1925, 1925. on October 12, The bond January approved on January 1926, accepted part, 14, wholly “made a consideration contract was 18, 1926. That the making” subsequent thereof is not to the performed or executed to be violate Section school board did not follow's that disputed. It requiring accepting contract, nor “in making the 2164 in given pursuance thereof. bond”
MOí - Appellants IV. further contendthat the bond is invalid be- prescribedby
causeit was not executedwithin the time Section 1919, because, Revised Statutes and. for that reason, deposi- the selection of the defendant bank as a
tary 11450', was in violation of Section Revised Statutes says: days any Sec. 11449 "Within ten after notice to bidder depositories, of the selection of such bidder as one of the it shall duty bidder, notified, of such so selected and to execute a bond, payable district, penal equal to said school in a sum to not largest moneys less than the amount of the funds and probably any ensuing school district which will at time within the years depository,'' two be in such etc. says: any banking corporation Sec. 11450 "If . . . after having depository, been selected as such and notified thereof as aforesaid, give provided by shall fail to such bond within the time preceding section, checks, accompany'- the next ing the certified check or accepted banking corporation bid or bids of such . . liquidated damages, shall be forfeited to the school district as shall, twenty days' notice, the board after in the manner herein- provided, proceed after nositorv in lieu of the one to receive new bids and select another de- failing to e'ive such bond." accepted August 10, As the bid of the defendant bank was August 17, 1925, and the bank was notified on to execute a the, plaintiff days thereafter, bond to within ten and the bond was January 14, 1926, not executed until it must be conceded that given prescribed by bond was not within the time Section the selection of the defendant bank as a was not in conformity provisions strict nection, however, with the of Section 11450. In this con.- that, the evidence shows on account of the re- jection unsatisfactory bids, depositaries plaintiff's all of the letting September 14, funds under the 1925 were not selected until 1925; readjustment plaintiff's deposits in accordance completed 12, 1925; *14 with the 1925 bids was not until October that plaintifE's deposit funds on with the defendant bank were secured 12, 1925, least; another bond until October at and that "the progress quite long [new] matter of a bond was in for a time but they [the bank] officers of the had been unable to furnish a bond satisfactory.'' indicated, may fairly As we have hereinabove it be in- deposit ferred ~romthese facts that the with the defendant bank one-eighth plaintiff's 12, 1925, of funds ~on October was made upon~ promise give satisfactory bond, the that the bank would a given pursuance promise that the bond in suit was of such and in performance obligation the plaintiff. of the bank's under its contract with the
17 given under a bond to invalidate Legislature intended the Wlietber referred statutory provisions is, the circumstances, whether that such Where, not decide. directory, we need merely mandatory or are to depositary bond and given to a been have and credit here, faith as such sureties on statutory bond, the aof the function performed has principal their ground that liability upon the escape cannot bond ground that upon nor the depositary, a duly as selected was not pre the time within and delivered executed was not bond such shows, the this case The evidence statute. the scribed deny, that the defendant do not appellants recites, and in suit bond funds. plaintiff’s depositary of aas selected was bank upon deny, that, not do appellants shows, and further evidence became bank bond, the of the approval acceptance execution, the one- received role,” that and acted “assumed depositary, a such all thereby, to depositary, and a such funds as plaintiff’s eighth of signing By depositary de a such became facto. purposes, intents intended including appellants, sureties, bond, the delivering the enabled That act depositary. such become should bank such Under funds. plaintiff’s one-eighth of get hold bank was selected bank whether immaterial circumstances, becomes whether statute, or by the exactly prescribed as depositary such the statute. prescribed the time within executed bond towas stand suit sureties engagement could default That bank&emdash;to its default. for answer sponsor That jure. or de de awas facto bank whether arise an must bond, on the sureties appellants, arisen, and has default Banc), en (Court Salmon County v. Henry [See therefor. swer In cited.] authorities 23, and l. c. W. 100 S. c. l.Mo. quoted following is supra, al., et Salmon County v. Henry Hennepin Commissioners Board case from approval falls case principle, “In 180: Minn. Bank, 64 State County v. by virtue bond, official upon an sureties rule within cannot, when office, into inducted been has officer which liability escape defaults, official his answer called appointed, or duly elected not principal their ground Krieger, v. Lionberger also [See qualify.” legally not did cited.] cases 160, and Mo. Appellants finally jwris V. contend that the rule of striot'issimi applied case, atten~pt point must be in this but do not even applicable. They merely quote rule, out wherein the rule is applied sureties, following in the form: ``Sure- law, ties are said to be favorites of the and a con- suretyship strictly tract of must be construed to im pose upon surety only clearly terms, those burdens within its *15 implication presumption.” Cyc or be extended [32 not must
73.] is well in this State. agree rule established this quite We application in however, has no say, will It suffice involving* any the con- with issue here not are confronted ease. We therein parties suit, the intention of or of the struction any depend upon not does disposition of case our expressed, and obligation assumed relating to the presumptions implications sureties. not appellants do observed whole, it will be Taking the case bank under of the nor the default bond, deny execution loss plaintiff’s amount dispute the thereof; do nor terms pre- lawof issues below. On judgment rendered by the fixed by the reached the conclusions accord in full sented, arewe Davis accordingly affirmed. is judgment judge. The trial learned concur. CC., Cooley, C., is HeNWOOd, foregoing opinion PER CURIAM:—The concur, ex- judges All court. opinion of the adopted as absent. J., Walicer, cept Railway Joseph County Clay St.& City, v. Kansas Foster
Matt 770. (2d)W. S. Appellant. Company, April Two, Division