Besides, the public policy of the state, as declared in sections 865, 659, Rev. St. 1899 (Ann. St. 1906, §§ 865, 659), we believe forbids the outright reversa! of judgments in meritorious cases on a mere technical matter of procedure in no way affecting the merits of the action. Aside from all other questions, it appears that there is no liability on the part of the Cape Girardeau & Chester Railroad Company, the lessor, for the injury inflicted upon the plaintiff through the negligence of the lessee. It is entirely true as a general proposition that an incorporated railroad company may not lease out its property and fran chises to another, and thus escape liability for injuries resulting from the operation of its road. Thomas v. Railroad, 101 U. S. 71, 25 L. Ed. 950. But this doctrine does not obtain when the legislative authority of the state has consented to the lease without reserving the liability of the lessor by appropriate words to that effect. Moorshead v. United Rys. Co., 119 Mo. App. 541, 96 S. W. 261; Moorshead v. United Rys. Co., 203 Mo. 121, 96 S. W. 261, 100 S. W. 611. The two defendants being domestic corporations, Although the execution of the release was technically confessed under the pleadings, we believe it would be highly unjust to re-owning connecting roads, both situate in the verse the judgment outright on that account state, the legislative authority has expressly without affording plaintiff an opportunity to authorized the leasing of the one to the othamend. It appears from the proof that er without in any manner signifying an inplaintiff has a meritorious cause of action, tention that the lessor company shall remain and the aspect the case now presents on the liable after the lease is executed for the state of the pleadings may be attributed to torts of the lessee over which it has no conthe ruling of the court when the question trol. Section 1060, Rev. St. 1899 (Ann. St. was raised at the inception of the trial, for, 1906, p. 915). It is only where a domestic had the court ruled otherwise, plaintiff might railroad company leases its road to a foreign have avoided his present predicament by corporation of like kind that the statute reamendment. The evidence tending to prove ferred to continues a liability against the the words of release were written in the lessor as though it continued to operate the pay roll after plaintiff signed it is clearly property. This reservation of liability competent under the general denial if prop- against the domestic company after leasing erly amended and verified. Moreover, it to a foreign corporation proceeds, we believe, seems the voice of justice loudly calls for on the theory that there shall remain a reremanding the case instead of reversing the sponsible party within the jurisdiction of judgment outright, and casting the plaintiff the state to answer for such torts and deout of court without recompense for his in- faults as may be committed in the operation juries. We have, indeed, a precedent of of the road which the state has chartered. high and controlling authority for the re- Markey v. Louisiana, etc., R. R. Co., 185 Mo. mand of a cause in the interest of justice 348, 84 S. W. 61; Smith v. Pac. R. R., 61 when the harsh application of the law points Mo. 17. The reason for the rule of the otherwise. In the Bank of Commerce v. statute in this respect does not obtain when Bogy, 44 Mo. 13, 100 Am. Dec. 247, a demur- both are domestic corporations owning railrer was sustained to the petition, and an ap- roads exclusively within the state. There peal was had. The Supreme Court through- can be no doubt that the authority conout the opinion reasoned the correctness of ferred upon one domestic railroad to lease the action of the trial court in sustaining the to another under our statutes without words demurrer, and concluded by saying: "Though expressive of a liability otherwise confers we find no error in sustaining the demur- authority to transfer, for the period of time rer, yet, that the issues may be raised as stipulated, possession and control of the indicated, the judgment will be reversed at property to the lessee. The authority imthe costs of the appellant and the cause re- plied in the word "lease" under such circummanded." That case, as this one, presented stances authorizes such an instrument as dia situation disclosing that great injustice vests the lessor of possession and control, would result from conclusively casting the and places it in the lessee to the exclusion plaintiff for a mere erroneous conception of of the lessor. The lease contemplated is an the theory of the law. See, also, Rowland v. effective instrument possessing all of the as pleads the release in bar to the plaintiff's 102 S. W. 19. invested at common law between landlord and tenant. So much has been conclusively determined by both this court and the. Supreme Court in Moorshead v. United Rys. Co., 119 Mo. App. 541, 96 S. W. 261; Moorshead v. United Rys. Co., 203 Mo. 121, 96 S. W. 261, 100 S. W. 611. See Elliott on Railroads, § 469. It is certain that at common law, if the landlord executed a lease to a tenant and delivered the possession of the property demised in a sound state of repair, he performed the full measure of his obligation, and was not responsible for injuries to third persons which thereafter accrued through the negligence of the lessee, either in the management of the premises or in permitting them to become out of repair. Taylor on Landlord & Tenant (9th Ed.) § 175. Indeed, not only is there no obligation on the part of the lessor at common law to repair the leased premises while in the possession of the lessee unless assumed by a covenant to that effect, but, on the contrary, the lessor is not permitted to enter the premises for the purpose of repair except by reservation of authority to do so. The common law has always thrown the burden of repairs upon the lessee as being in fact a bailee of the premises and bound to restore the same as he re ceived them. Taylor on Landlord and Tenant, §§ 174, 175, 327, 328; Ward v. Fagin, 101 Mo. 669, 14 S. W. 738, 10 L. R. A. 147, 20 Am. St. Rep. 650; Gordon v. Peltzer, 56 Mo. App. 599; Herdt v. Koenig, 137 Mo. App. 589, 119 S. W. 56. The doctrine mentioned obtains with full force as between one railroad company as lessor and another as lessee when the lease is expressly authorized by the statute and unincumbered, with reserva ions or statutory duty imposed to the There is naught in the case tending to contrary. Moorshead v. United Rys. Co., 119 show that the lessor company covenanted to Mo. App. 541, 96 S. W. 261; Moorshead v. repair the tracks. It appears its roadbed United Rys. Co., 203 Mo. 121, 96 S. W. 261, and track were sound and secure at the time 100 S. W. 611; Caruthers v. Kansas City, the lease was executed, and that the lessee etc., R. R. Co., 59 Kan. 629, 54 Pac. 673, 44 had been operating under the lease for a L. R. A. 737, and instructive note. It is true considerable period. The lessee company the Moorshead Case presented a question of had undertaken to repair the defective track the liability of the lessor company for the at the place mentioned only about three days tort of the lessee committed through its before the plaintiff received his injuries, but agent in operating the car. However that performed the work in such a careless manmay be, there is no distinction in principle ner the embankment gave way a second between the question in judgment there and time, and resulted in the derailment of the the one presented here; for, while the plain- car in which plaintiff was riding. Under tiff's injury in this case resulted from the de- these circumstances, it appears conclusively fective roadbed of the lessor, the defect was that no liability may be asserted against the one which the law cast the duty upon the lessor for the negligence of the lessee in faillessee to mend. It is suggested that, as the ing to perform its duty in the premises. The defect complained of existed in the track of relation of lessor and lessee not only affixed the lessor, that company is liable to respond the obligation upon the lessee to exercise as well for the plaintiff's hurt, because the care in maintaining the tracks, but precludlaw annexes to its franchise the duty to ex-ed the lessor as well from any right to enter ercise care in respect of its roadbed, and upon the premises for the purposes of repair. there can be no doubt that such is its obli- The judgment will be reversed as to the gation at common law. But the suggestion Cape Girardeau & Chester Railroad Compaomits entirely to reckon with the fact that ny, the lessor, and that defendant discharged. the competent legislative authority has au- As to the defendant the Chester, Perryville thorized it to farm out its tracks to another, & Ste. Genevieve Railway Company, the les and thus assume a relation to the property which as a matter of law precludes its right to either enter upon or repair the same while in possession of the lessee. The argument would inhere with much force if it ap peared that the defect was one which existed in the track at the time the lease was executed and the possession given over to the lessee, for, in such circumstances, the law would view it as a nuisance and treat it accordingly to the end that both the lessor, who had created the nuisance, and the lessee, who had continued the same, should respond for its baneful effect upon an innocent third party. Taylor on Landlord & Tenant (9th Ed.) § 175; Gordon v. Peltzer, 56 Mo. App. 599; Tate v. M., K. & T. R. R. Co., 64 Mo. 149, 155; Mancuso v. Kansas City, 74 Mo. App. 138. And so it is if the lessor's tracks were defective in the manner disclosed by the evidence as a result of negligent construction at the time the lease was executed, and continued in that condition through the default of the lessee, liability would not only attach to the lessee company, but continue as well against the lessor for such negligent construction on the principal of nuisance referred to. The following authorities are in point: Arrowsmith v. Nashville & D. R. R. Co. (C. C.) 57 Fed. 165; Nugent v. Boston, etc., R. R. Co., 80 Me. 62, 12 Atl. 797, 6 Am. St. Rep. 151. See, also, St. Louis, etc., R. R. Co. v. Curl, 28 Kan. 622; Miller v. N. Y., etc., R. R. Co., 125 N. Y. 118, 26 N. E. 35; Moorshead v. United Rys. Co., 119 Mo. App. 541, 96 S. W. 261; Moorshead v. United Rys. Co., 203 Mo. 121, 96 S. W. 261, 100 S. W. 611; Elliott on Railroads (2d Ed.) § 469. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1090.*] 2. APPEAL AND ERROR (§ 584*)-ABSTRACT FORM-INTERLINEATIONS. formed on said building, or material furnished and which entered into its construction," the condition of the bond being that if said J. F. Beggs in all things stand to and abide by and well and truly keep and perform the covenants, etc., of the contract, "and should duly and promptly pay and discharge all indebtedness that might be incurred by the said Beggs in carrying out said contract, and complete the said building free of all mechanical liens, and should truly keep and perform the covenants, conditions and agreements in said contract contained on his part to be kept and performed at the time and in the manner and form therein specified," then the bond to be void; it being further provided in the bond that, in case an action is brought under its provisions, to pay "all costs of such action, including attorney's fees, which might be incurred in enforcing the payment and collection of any and all indebtedness incurred by said Beggs in car[Ed. Note. For other cases, see Appeal and rying out said contract"; it being also proError, Cent. Dig. §§ 2584, 2585; Dec. Dig.vided and set out in the bond that "it is 584.*] Under Court of Appeals Rule 15 (121 S. W. vi), requiring abstracts to be printed in fair type, an abstract, consisting of 40 pages with pen and ink interlineations of matters which should appear therein on 16 of them, and sometimes 2 or more on a page, was improper. 3. SCHOOLS AND SCHOOL DISTRICTS (§ 81*) SCHOOLHOUSES-CONSTRUCTION - BONDS made for the use and benefit of all persons who may become entitled to liens under said contract, or to whom said Beggs might become indebted, and that it might be sued up Rev. St. 1899, § 6761 (Ann. St. 1906, p. 3328), provide that a schoolhouse contractor shall execute a bond conditioned for the pay-on by such persons as if executed to them ment of all material used in the work and all labor performed on the work, whether by subcontract or otherwise. Held, that a schoolhouse contractor's bond, providing that it was made for the use of all persons who might become entitled to liens under the contract or to whom the contractor might become indebted, and that it might be sued on by such persons as if executed to them in person, was for the benefit of materialmen furnishing material to the contractor used in the building. [Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 195, 196, 340; Dec. Dig. § 81.*] in proper person." The petition then avers that, after execution of the contract and bond, Beggs, as contractor, erected and completed the building, and the school district paid him for it and accepted the building; that plaintiff, at request of Beggs, had furnished pressed brick to Beggs which were used by him in the construction of the building, of the total value of $2,139.06, and on which Beggs had paid $1,539.06; and that $600 remained unpaid on account thereof, which Beggs had refused to pay, thereby Appeal from Circuit Court, Madison Coun- breaching the bond. Judgment is accordingly ty; Chas. A. Killian, Judge. Action by the School District of Fredericktown, on relation of Fredericktown Brick Company, against J. F. Beggs and others. Judgment for relator, and defendants appeal. Affirmed. This is an action on a contractor's bond, to recover a debt for materials furnished to one J. F. Beggs, contractor, which were used in the construction of a public high school building at Fredericktown, Mo. It is set out in the petition in the case that Beggs, before beginning the construction of the high school building, and as part of his agreement with the school board, made his bond, the other defendants being his sureties, to the school district, whereby they bound themselves in the amount of the penalty of the bond to the school district, "as well as all persons who might become entitled to liens under the provisions of the foregoing described contract, or to whom the said J. F. Beggs might become indebted for labor per asked for the penalty of the bond and execu tion for that amount and interest and costs and for a reasonable amount for attorney's fees. The answer of the sureties, after a general denial, admits the execution of the contract and bond as pleaded, and sets up departures from the contract, in the way of additions and alterations, etc., which it was claimed absolved the sureties from payment of the obligation of the bond. Beggs admitted in his answer an indebtedness of $227.76 and no more. The reply was a general denial. The case was tried before the court, a jury being waived, and a judgment was rendered for the penalty of the bond and damages assessed at $600, and an attorney's fee allowed for $100. The court was requested to make a finding of fact in the case, which it did, as follows, entering it of record as we gather from the abstract: "The court finds the following facts in addition to those admitted in the pleadings. (1) That the defendant, J. F. Beggs, as principal, and the other defendants | day of the September term, 1908, the court above named, as sureties, signed, executed, took up said motion to strike out part of the and delivered the bond dated June 1, 1907, answer of the said defendants aforesaid, and and offered in evidence. (2) That the de- having seen, heard and considered the same, fendant, J. F. Beggs, entered into the con- did then and there sustain the said motion. tract with the School District of Frederick- To the ruling of the court in sustaining said town, dated June 1, 1907, whereby he agreed motion to strike out part of said answer, the to construct, build, and complete the high defendants then and there and at the time obschool building for said district in ac- jected and excepted and saved their excepcordance with the conditions set out in said tions." Then follows, by pen and ink, this: contract, which said contract was offered "The rulings and objections and exceptions in evidence. (3) That the defendant J. F. are set out in bill of exceptions." And so it Beggs, completed the building mentioned in runs through this abstract. It comprises 40 the said contract, and was paid therefor in pages, and these pen and ink interlineations full by the said school district, in accord- of matter which should appear in an abstract ance with the contract. (4) That he purchas- are on 16 of them, sometimes 2 or more on ed for and used in the erection of said build-a page. By these alone is an attempt made ing the material set out in the account filed to inform us of what is exception and what by plaintiff and offered in evidence, at and of record. Respondent challenges the abstract for the price therein set out and agreed upon, as insufficient and asks for an affirmance or and that there is still due and unpaid plain- dismissal of the appeal on that ground. We tiff, from defendant, for such material, the will not sustain that motion; but, even withsum of $600. (5) That the sum of $100 the out it, examining the so-called "abstract," we court finds to be reasonable allowance for are left in the dark to say, what is and plaintiff's attorney's fee in this cause, and is not in the bill of exceptions. Rule 15 that said fee is provided for in the bond of- (121 S. W. vi) of our court clearly and unmisfered in evidence." takably calls for a printed abstract in fair type. While an occasional interlineation or correction by pen or pencil will not be cause for disregarding an abstract, we cannot tolerate such radical departure from the rules esAs to the bill of exceptions, this entry, howtablished for the orderly conduct of cases. ever, does appear: That the "court granted to the defendants until the 1st day of January, 1909, in which to file their bill of exceptions and in vacation of this court, and that execution be stayed pending the appeal." Then appears this: "That afterwards, and on the 22d of December, 1908, the defendants filed their bill of exceptions with the clerk, and in vacation of the circuit court of Madison county, Mo., and the following entry of record was made, to wit." Then follows the entry of filing. We have set out the finding of facts made by the court. It sustains all the material allegations in the petition. The sole question which we consider necessary to consider at any length is the question of the sufficiency of the petition to sustain the judgment. Recurring to the objections made to the petition, it is urged that the bond there set up and pleaded does not include this plaintiff, he not being named in it, not being within its terms, but a stranger to it; that the bond is limited by its terms and scope to those who have a right to mechanics' liens, and, as there can be no mechanics' liens against a public school building, it does not protect that class of claimants, of whom plaintiff is one; that no one but the school district itself is under protection of the bond; that "the clear and unequivocal wording of the bond in question is that it was made for the benefit of those and only those who might, under the statute, become entitled to liens." Section 6761, Rev. Judgment was, accordingly, entered for the penalty of the bond, and awarding execution for $600 debt and $100 attorney's fee and costs, and from this defendants have appealed. David M. Tesreau and John H. Chitwood, for appellants. Robt. A. Anthony, for respondent. REYNOLDS, P. J. (after stating the facts as above). The paper filed as an abstract is attacked by counsel for respondent as not being sufficient in any respect; among others, that it fails to show the filing of record of a bill of exceptions. An examination of this so-called "abstract," while showing many defects not necessary to be noted or commented on here, although not very clearly set out, does show that the bill of exceptions was duly filed in vacation by the clerk and within the time allowed. The bill of exceptions is referred to by written interlineations in the printed abstract by pages, but the bill of exceptions is not before us. What are said to be entries of records showing overruling of motions contains the recital that defendants excepted to the ruling. But exceptions cannot be saved by record entries. It is impossible to determine by the abstract furnished us what is in the bill of exceptions and so saved. Thus it is set out that a motion was filed to strike out certain portions of the answer, setting up alterations in the building which it is claimed absolved defendants from liability on the bond, and the motion is set out in full. Following that is this entry in the abstract, written by pen and ink: "Said motion to strike out is set forth on pages 2, 3, 4, 5 and 6 in bill of exceptions." Then follows this, printed: "That on the 30th day of "All school districts making con- construed in Crone v. Stinde, 156 Mo. 262, 55 tracts for public work of any kind to be done S. W. 863; City ex rel. v. Von Phul, 133 Mo. for such school district, shall re- 561, 34 S. W. 843 [54 Am. St. Rep. 695]; Dequire every contractor to execute a bond with vers v. Howard, 144 Mo. 671, 46 S. W. 625; good and sufficient securities, and such bond School District ex rel. v. Livers, 147 Mo. 580, among other conditions shall be conditioned 49 S. W. 507; Luthy v. Woods, 6 Mo. App. for the payment for all material used in such 67-in which cases the contracts were so work, and all labor performed on such work, worded as to protect laborers and materialwhether by subcontract or otherwise." men without the qualification that they should be lienors." The bond before us in this case does provide both for lienors and for all others who do work and furnish material. Hence it is within the rule laid down in the Loomis Case and distinctly within the cases there cited. We have set out the conditions of the bond as pleaded in the petition. It is not necessary to repeat them here. Over and beyond the obligation to pay for all material, etc., furnished Beggs in the construction of the building, is the distinct clause that the bond "is made for the use and benefit of all persons who may become entitled to liens under said contract, or to whom said Beggs might become indebted, and that it might be sued upon by such persons as if executed to them in proper person." It is true that this clause is not in the language of section 6761; but, while rather awkwardly expressed, it effectually covers the idea of that section. Discarding the statute, it is a good common-law bond, and very clearly sets out those who are to be within its protection. Nor is the expression in it that those who may be entitled to mechanics' liens are within it to be taken literally, for no one can be entitled to a mechanic's lien against a public building. Hence this clause might be read as if in these words: "Those who but for the provisions of the law exempting public buildings from mechanics' liens are entitled to enforce a lien." But this bond, as pleaded, does not end with this provision as to protection of mechanics' lien claimants. It protects these as well as those "to whom the said J. F. Beggs might become indebted for labor performed on said building or materials furnished and which entered into its construction." It is made for the use and benefit of "all persons who may become entitled to liens," that is, one class; "or, to whom said Beggs may become indebted," and that is another class. Then, covering both, it provides, "it might be sued upon by such persons, as if executed to them in proper person." Herein this bond differs radically from the bond in suit in State ex rel. v. Loomis, 88 Mo. App. 500, loc. cit. 504, and, instead of falling under the condemnation of that decision, this case is directly within the general doctrine there announced, namely, contracts for the benefit of third parties may be enforced by them, even if not named in them, provided it appears that the third parties were within the minds of the parties to the bond as parties within its protection. Judge Goode expressly says, referring to the bond there before the court: "The language does not embrace all who might perform labor or furnish material, but only such as do one of those things and are entitled to a lien therefor. In that respect the contract differs from those 1. SALES (§ 1*)-CONTRACTS-DEFINITENESS— SUFFICIENCY. A contract between plaintiff and defendant, both of whom were thoroughly familiar with the output of a quarry, whereby defendant was to purchase at a fixed price per yard all the rock and dirt which plaintiff could get out of ciently definite to constitute a valid agreement the quarry during a specified period, was suffi[Ed. Note.-For other cases, see Sales, Cent. Dig. § 5; Dec. Dig. § 1.*] As is said in the Luthy Case, it is not necessary to resort to any supposed equity even to entitle the materialmen to sue. Their right arises from the very terms of the bond. The bond and its conditions are pleaded. The plaintiff is within not alone its spirit, but its very terms. If necessary to go that far, we would be inclined to hold it good even under the statute. We conclude, therefore, that the petition here does state a good cause of action, and the finding and judgment of the trial court are fully sustained by it. Judgment affirmed. All concur. SCHOOL DIST. OF FREDERICKTOWN ex (St. Louis Court of Appeals. Missouri. Feb. Action by the School District of Fredericktown, on the relation of the Fredericktown Lumber Company, against J. F. Beggs and others. Judgment for relator, and defendants appeal. Affirmed. David M. Tesreau and John H. Chitwood, for appellants. Robt. A. Anthony, for respondent. REYNOLDS, P. J. The facts of the case, tion of the record in this case, are identical with save as to amount and relator, and the condithose in No. 11,781, School District of Fredericktown ex rel. Fredericktown Brick Co. v. J. F. Beggs et al., 126 S. W. 530. For the reasons there stated, the judgment in this case is affirmed. All concur. ROZIER v. ST. LOUIS & S. F. R. CO. (St. Louis Court of Appeals. Missouri. March 8, 1910.) |