lic health, and resulting necessarily, it may be said, in the public convenience and welfare, unquestionably comes within the range of legitimate legislative action, and may rightly call into exercise the right of eminent domain, and the taxing power of the state. In Fence Co. v. McAllister, 12 Bush, 315, this court said, "The draining of marshes and ponds for the promotion of the public health, the improvement of streets and public highways, are held to be within the legitimate exercise of the taxing power;" and such is the settled law. It is insisted, however, that as, under section 6 of the act, the viewers, in locating the drain, "shall estimate the damages, if any, that any person or persons will sustain by reason of the construction of such ditch, and assess such damages to the parties owning the lands benefited, in proportion as each tract of land is assessed for benefits," therefore the act fails to properly protect the landowner over whose land the drain runs. We suppose this contention to mean that under the act one who is benefited may be taxed beyond the value of benefits received to pay those who are injured, and, if such is the necessary construction of the act, the objection is fatal. Assessments must, in any event, be restricted to the extent of the benefits conferred. It seems to us, however, that this restriction is provided for with sufficient certainty; the amount of the benefit to be first ascertained, and assessments must be "in proportion as each tract of land is assessed for benefits." We think a fair construction of the act is that assessments in no event can go beyond the benefits, and this meets the objection complained of. The act does not say that the damages shall be paid before entry, but it provides the source from which these damages are to be collected, and the rights of the owner in this behalf are fully protected by well-settled law.

The other contentions of counsel are disposed of in what we have already said. The proceedings seem to be regular in every material respect. The verdict of the jury conforms to the views we have expressed, and the judgment directing the establishment of the drain under the order of the county court is affirmed.

HULL v. CITY OF ST. LOUIS.1 (Supreme Court of Missouri, Division No. 2. March 10, 1897.) WORK AND LABOR-VALUE OF SERVICES-INSTRUC

TIONS.

1. An instruction that the jury, in estimating the compensation due plaintiff for appraising certain real estate, should consider the compensation usually paid to competent real-estate agents for like services, was properly refused where the evidence showed that there was no fixed rate, and the jury were instructed to find what the services were reasonably worth.

2. It was error to charge that in determining the value of plaintiff's services in appraising real estate the jury might disregard the opinions of expert witnesses, it being for the jury to determine what weight should be given to the evidence.

1 For opinion on rehearing, see 40 S. W. 89.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by Leon L. Hull against the city of St. Louis, Mo., as trustee, to recover $3,250 for services rendered. From a judgment on a verdict for $1,188, plaintiff appeals. Reversed.

Lubke & Muench, for appellant. W. C. Marshall and B. Schnurmacher, for respondent.

BURGESS, J. This is an action for compensation for personal services rendered by plaintiff for defendant in and about the appraisement of certain property which it holds in trust as a charitable fund to furnish relief to all poor emigrants and travelers coming to St. Louis bona fide to settle in the West. The amount sued for was $3,250. The amount for which plaintiff recovered a verdict before a jury was $1,188. He then filed his motion for a new trial, which was overruled, and he appealed.

In 1851, one Bryan Mullanphy died testate. By his will he devised one-third of all his property, real, personal, and mixed, to the city of St. Louis in trust, to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis bona fide to settle in the West. The city accepted the trust, and by ordinance created a board called the "Board of Commissioners of the Mullanphy Emigrant Relief Fund," to carry out the purposes of the testator. The board, desiring to have the trust property appraised, on September 13, 1893, employed the plaintiff, Charles Green, and T. J. Quinn, as such appraisers. No agreement was made as to the compensation that they were to receive for their services. The property to be examined and appraised was in the city of St. Louis. There was evidence tending to show that the appraisers were informed that they might hire carriages to take them to the property, a clerk to assist them in their work, and a surveyor to locate the property. For these services they presented a bill for carriage hire amounting to $200, a surveyor's bill of $800, and a bill for services alleged to have been rendered by the clerk of the appraisers of $2,400. This bill the board declined to pay, upon the ground that it was contracted without authority from the board, and declined to pay the amount demanded by the appraisers upon the ground that the same was excessive. Plaintiff was, at the time of his appointment, a real-estate agent in said city. The time consumed in making the appraisement, report, etc., was 228 days. The plaintiff and 11 other witnesses, including the appraisers Quinn and Green, testified in his behalf, and estimated the value of the services rendered by plaintiff at $3,250, while five witnesses who testified in behalf of defendant estimated them at from $1,000 to $1,200. At the instance of the plaintiff the court gave to the jury the following instruction: "First. The court instructs the jury to find for the plaintiff, Leon L. Hull, and to assess his compensation at such sum as from the evidence before them the jury may believe his services to have been reasonably worth." The court refused to

give to the jury the following instruction: "Second. In estimating the reasonable value of plaintiff's services, the jury may take into consideration the evidence showing plaintiff's experience as a real-estate agent in the city of St. Louis at the time when the services were rendered, the compensation at the time usually paid to and received by competent real-estate agents of said city for like services, the character and amount of property examined and appraised by plaintiff, the services actually performed in making such examination and appraisement, and time consumed therein, and also the reasonable opinions of expert witnesses who have testified upon this trial, as well as all other facts and circumstances shown in the evidence bearing on plaintiff's services, and the reasonable value thereof when rendered." The court, of its own motion, gave to the jury the following instruction: "Third. In estimating the reasonable value of plaintiff's services, the jury may take into consideration the evidence showing plaintiff's experience as a real-estate agent of the city of St. Louis at the time when the services were rendered, the character and amount of property examined and appraised by plaintiff, the services actually performed in making such examination and appraisement, and time consumed therein, and also the reasonable opinions of expert witnesses who have testified upon this trial, as well as all other facts and circumstances shown in the evidence bearing on plaintiff's services, and the reasonable value thereof when rendered." And on motion of defendant the court gave to the jury the following two instructions: "Fourth. The court instructs the jury that they are not bound to accept the opinion of expert witnesses as to the value of plaintiff's services, but may give said opinions such weight to which the jury may deem them entitled, or altogether disregard such opinions, if the jury, from all the facts and circumstances in evidence, believe said opinions unreasonable. Fifth. The court instructs the jury that if they find their verdict for the plaintiff, they will allow him only the reasonable value of such services as the evidence may show he performed for defendant, and no more." To the action of the court in refusing the second instruction asked by plaintiff, in giving the third instruction of its own motion, and in giving the fourth and fifth instructions on motion of defendant, plaintiff at the time objected, and saved his exceptions.

The first assignment of error is the action of the court in modifying the second instruction asked by plaintiff, and eliminating therefrom the following: "The compensation at the time usually paid to and received by competent realestate agents of said city for like services." The vice of the instruction as asked was in assuming that there was a rule as to the amount of compensation usually paid to and received by real-estate agents of the city of St. Louis for like services, when the evidence was conflicting with respect to the existence of such a rule. It is only where the facts are not disputed, or the evidence is all one way, that such

Fullerton v. Fordyce,

an instruction is proper. 121 Mo. 1, 25 S. W. 587; Van Natta v. Light & Power Co., 133 Mo. 13, 34 S. W. 505. Moreover, if the instruction as given was considered by the jury in connection with the first instruction, as was doubtless the case, plaintiff received the benefit of the evidence adduced with respect to the customary compensation usually paid to competent real-estate men in the city of St. Louis for such services, and suffered no injury by reason of the modification of the instruction as asked. We do not, however, mean to be understood as holding that personal services requiring the exercise of judgment and skill have a marketable value, but that each case must depend upon the capacity and skill of the person rendering the services, their nature and extent.

It is contended by plaintiff that the court erred in giving the fourth instruction at the request of defendant, by which the jury were authorized to disregard the opinions of the expert witnesses "as to the value of plaintiff's services." The evidence of the expert witnesses as to the value of the services sued for was merely advisory, the weight of it being for the determination of the jury. Cosgrove v. Leonard, 134 Mo. 419, 33 S. W. 777; Rose v. Spies, 44 Mo. 20; Head v. Hargrave, 105 U. S. 45. But the instruction went too far in telling the jury that they had the right to disregard the opinions of the expert witnesses. While such evidence was not conclusive, it should have been considered by them together with all the evidence showing what the plaintiff did, and the value of his services, "in the light of their common knowledge." Rose v. Spies. supra; Cosgrove v. Leonard, supra; Bentley v. Brown, 37 Kan. 14, 14 Pac. 434; Stevens v. City of Minneapolis, 42 Minn. 136, 43 N. W. 842; Arndt v. Hosford, 82 Iowa, 499, 48 N. W. 981; Price v. Insurance Co., 48 Mo. App. 281; Bourke v. Whiting, 34 Pac. 172. From these considerations it follows that the judgment must be reversed, and the cause remanded for further trial. It is so ordered.

GANTT, P. J., and SHERWOOD, J., con

cur.

MONTGOMERY COUNTY v. GUPTON. (Supreme Court of Missouri, Division No. 1. March 9, 1897.)

SUPPORT OF INSANE PERSON-LIABILITY TO COUNTY OF DECEDENT'S ESTATE.

1. In the absence of a statutory provision therefor, a county whose duty it is to support indigent insane inhabitants (Rev. St. 1889, § 484 et seq., and Id. § 7327) cannot recover from the estate of a deceased insane person money expended in maintaining such person in a state asylum as a county patient.

2. Rev. St. 1889, § 5557, authorizing a county to recover the amount of appropriations for the support of insane persons from any one who by law is bound to support such person, does not authorize a county to recover from the estate of a deceased insane person money expend

ed in his maintenance in an asylum as a county patient.

Barclay, C. J., dissenting.

Appeal from circuit court, Montgomery county; E. M. Hughes, Judge.

Action by Montgomery county against the administrator of the estate of Ellen Collins, deceased. Plaintiff had judgment, and defendant appeals. Reversed.

Solomon Hulet, for appellant. Ball & Ball and Robt. Shackelford, for respondent.

BRACE, J. This action is upon a demand presented for allowance in the probate court of Montgomery county in favor of the county against the estate of Ellen Collins, deceased, for the sum of $1,826.35 for that amount of money paid by the county to the State Lunatic Asylum at Fulton for the support of the said Collins at the asylum from the 5th of March, 1880, to the 25th of August, 1893, to which she had been sent as a county patient. The demand was allowed in the probate court for the sum of $607.30, and an appeal taken by the administrator to the circuit court, where, upon a trial de novo, the plaintiff recovered a judgment for $600, from which the administrator appealed to the St. Louis court of appeals, by which court the case was transferred to this court.

The facts are agreed upon, and are as follows: About the year 1880, Ellen Collins became violently insane, and by an order of the county court of Montgomery county was placed in the State Lunatic Asylum as a pauper patient, and was maintained in said asylum as a county patient of said county, as provided by law, from 1880 to the date of her death, August 25, 1893. During the time she was confined in the asylum, Montgomery county paid to the treasurer, for her support in said institution, the sum of $1,826.35. Of this sum $607.30 was paid by Montgomery county for her support within the last five years of her confinement in the asylum immediately prior to her death. At the time she was sent to the asylum she was owner in fee of 20 acres of land in Montgomery county, worth at that time about $400, and not worth now more than $400 or $500. To this land she acquired title from her husband, Patrick Collins, who occupied that land as a homestead up to the date of his death, which was about the year 1874. There were no children to the marriage, and Ellen Collins, as widow, was the sole heir of Patrick Collins. After his death, she occupied the land until she became insane. No guardian was appointed for Ellen Collins after she was placed in the asylum. The land remained in possession of her relatives, who paid the taxes and received the rents. At the time of her death, Ellen Collins left no husband or children. Her nearest kin and heirs are nieces and nephews, and from the time she was placed in the asylum to the date of her death all of her expenses were paid by Montgomery county in the usual way out of the pauper fund, and the pending claim represents the amount so paid by Montgomery county for her support.

Deceased had no other property, so far as is known, and owed no other debts. No attempt was made by Montgomery county, during her lifetime, to reach this tract of land to pay for her support. Possibly, for many years, the county court had no knowledge that she owned the land. The refusal of the court to sustain a demurrer to the evidence presents the only question in the case, and that is whether a county can recover from the estate of a deceased insane person money expended by the county in maintaining such person during her lifetime in a state lunatic asylum as a county patient.

The duty of supporting the indigent insane of this state is devolved by statute upon the counties of which they are inhabitants. Rev. St. 1889, § 7327, and Id. § 484 et seq. It is well settled at common law that the provision made by law for the support of the poor is a charitable provision, from which no implication of a promise to repay arises, and moneys so expended cannot be recovered of the pauper, in the absence of fraud, without a special contract for repayment. Selectmen of Bennington v. McGennes, 1 D. Chip. 44; Town of Benson v. Hitchcock, 37 Vt. 567; Inhabitants v. Eaton, 12 Mass. *328; Inhabitants v. Sawyer, 3 Allen, 515; Charlestown v. Hubbard, 9 N. H. 195. A person so relieved, whether he had or had not property, never was liable to an action for such relief at common law. Inhabitants of Groveland v. Inhabitants of Medford, 1 Allen, 23. "The misjudgment of the officers of the poor as to the necessities of the person relieved raises no implied promise on the part of such person that he will repay moneys expended in his behalf." City of Albany v. McNamara, 117 N. Y. 168, 22 N. E. 931. In view of these well-settled principles of the common law, in many of the states laws have been enacted authorizing the recovery by suit against the pauper of moneys expended in his support. Such is the case in Pennsylvania, and it was upon a statute of this character that a recovery was upheld in Directors v. Nyce, 161 Pa. St. 82, 28 Atl. 999. But we have no statute of similar import. The only statute we have authorizing a recovery against any person for money expended in support of paupers is section 5557, by which it is provided that: "In all cases of appropriations out of the county treasury for the support and maintenance or confinement of any insane person, the amount thereof may be recovered by the county from any person who, by law, is bound to provide for the support and maintenance of such person, if there be any of sufficient ability to pay the same." Counsel for respondent insist that under this statute a recovery is authorized in this case, and the question is gravely asked: "If an action can be maintained against one who is legally liable for the support of the patient on account of an appropriation by the county, why could it not be maintained against the individual himself, or, in case of his death, against his administrator?" The obvious answer is: Because the right of action is purely

a creation of the statute, and the statute gives it in the one case, and does not in the other. There is no principle of statutory construction to warrant the assumption that, "a legal liability being upon others, if they are able pecuniarily to pay for the patient's support, the law will imply a promise on the part of the patient to pay for it himself, if liable pecuniarily," upon which the judgment in this case seems to have been based. The deduction is a palpable non sequitur, and to give it effect is simply judicial legislation. Whatever argument may be urged in support of the proposition that such ought to be the law should be addressed to the legislature, and not to the courts. The judgment is reversed. All concur, except BARCLAY, C. J., who dissents.

HUTSELL et al. v. CREWSE et al. (Supreme Court of Missouri, Division No. 1. March 9, 1897.)

PLEADINGS-WAIVER OF OBJECTIONS-DEED-CONSIDERATION-REFORMATION.

1. Where no objection is made to the petition until the trial, when the petition is amended, and evidence admitted thereunder without further objection, the defects in the petition cannot be urged as a ground of reversal.

2. Where the objection that the husband of a defendant should have been made a party is not raised by demurrer, it cannot be raised on appeal.

3. A deed which makes provision for a minor child has a meritorious consideration.

4. The description in a deed to land susceptible of identification aliunde, made on a meritorious consideration, may be corrected in equity.

Error to circuit court, Wright county; W. I. Wallace, Judge.

Action by Samuel R. Hutsell and others against Ellen R. Crewse and others to reform a deed, and for other relief. Plaintiffs had decree, and defendants bring error. Reversed in part.

Wm. O. Mead and T. T. Low, for plaintiffs in error. Nickle & Pope, for defendants in error.

BRACE, J. The plaintiffs in this action are the children of R. M. Crewse, late of Wright county, deceased, by his first wife, and the defendants are the second wife of said deceased and her children by him. On the 1st day of September, 1879, and during the lifetime of his first wife, the said R. M. Crewse executed several deeds to each of his children by her, to lands which he owned in Missouri, and among them one to his daughter Emily C. Crewse, who was then a minor, for a tract in Wright county, described in the petition as being a part of his home place. In this deed the numbers of the township and range were omitted. Some time afterwards his wife died, and he married again. After his second marriage he continued to reside at the same place with his second wife and his children by her until the year 1884, when he died, leaving them in possession of the premises. Afterwards, on the 7th day of August,

39 S.W.-29

1889, this suit was instituted, in which the plaintiffs asked to have the deed of Emily C. Crewse corrected by inserting the numbers of the township and range omitted as aforesaid, and that any title that the defendants may have in said land as the heirs of Rufus M. Crewse be divested from them, and invested in the plaintiffs. On the hearing the court granted the prayer of the petitioners, and the defendants, failing to secure a rehearing on proper motion for that purpose, bring the case here by writ of error.

1. On the trial, defendants objected to the introduction of any testimony in the case, "for the reason that there is no allegation that R. M. Crewse is dead, and no allegation that these defendants are the heirs of R. M. Crewse." Immediately following this objection in the bill of exceptions is the following entry: "Plaintiff is allowed to amend his petition making the above allegations." In the caption of the petition defendants are described as "Ellen Crewse, widow of R. M. Crewse, deceased," and the other defendants, naming them, as "minor heirs of R. M. Crewse, deceased." In this state of the pleadings and record the case went to trial. The death of Crewse and the relation of the defendants to him where indisputable facts, shown in the evidence without objection, and it is too late now to urge this objection as ground for reversal. If parties will wait until the trial commences to urge objections to the pleadings, they must not complain if their objections are disposed of summarily; and in such case it is not to be expected that the record will be made up with exact formality.

2. The objection that the husband of one of the defendants was not made a party also comes too late. It should have been made by special demurrer.

3. It is also urged that three of the defendants are minors, and that no decree could be entered against them for the reason that there was no appearance for them. This is a mistake, for it appears from the record that the trial was had at the September term, 1892, and that R. W. Fyan was appointed guardian ad litem for said minors at the March term, 1890, and that the answer of said minors by their said guardian was filed at the September term, 1891.

4. The execution of the deed by R. M. Crewse was proven beyond question. The identity of the tract of land, and that it was in the township and range claimed, was undisputed; that their omission from the deed was a mere mistake is patent. The whole force of the contention below was that the deed had never been delivered. The court expressly found that the deed had been delivered. By separating the wheat from the chaff, and giving consideration to the legal evidence in the case only, we have no difficulty in arriving at the same conclusion. But it is urged that equity will not lend its assistance to the enforcement of a voluntary executory contract. The answer to this contention is obvious. The deed makes provision for a child, and therefore has a meritorious con

sideration, which entitles it to the protection of a court of equity; and, having been delivered and the land susceptible of identification aliunde, the contract is executed, and the title passed.

5. The decree of the court as it now stands, however, cannot be sustained, as it appears from the evidence that R. M. Crewse survived his daughter Emily, who died without issue, and inherited a share of her estate in this land, which descended in equal proportions to all of his children,-those by the second as well as those by the first marriage. The former would also be entitled to half shares as heirs of the said Emily if born before she died,-a fact which cannot be determined on this record. In this state of case, the judgment will be reversed, and the cause remanded, with directions to reform the decree so as to merely reform the deed in accordance with the prayer of the petition, and nothing more. All concur.

BAKER v. LANE et al. (Supreme Court of Missouri, Division No. 1. March 9, 1897.)

JUDGMENT-DEFECT OF PARTIES-RES JUDICATA.

When rendered because of a defect of parties defendant, an adverse judgment does not determine plaintiff's cause of action, as against the proper parties.

Appeal from circuit court, Jasper county; W. M. Robinson, Judge.

Action by Margaret M. Baker against Ella Lane and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

E. O. Brown and M. G. McGregor, for appellants. W. A. Turner and H. H. Harding, for respondent.

BRACE, J. This is an action for the assignment of dower, and damages for deforcement thereof. The plaintiff's husband, William H. Baker, deceased, in his lifetime, and during her coverture with him, was the owner of the land in controversy, in which the plaintiff had dower, which she never relinquished. The defendants are the administrator de bonis non with the will annexed of Louisa C. Lane, deceased, his tenant in possession of the premises, and the heirs and legatees of the said Louisa C. Lane, deceased, who acquired title thereto by mesne conveyances from the said William H. Baker, who died on the 1st of June in the year 1886. At the September term, 1886, of the Jasper circuit court, thereafter, the plaintiff instituted suit against the said Louisa C. Lane (who was then in possession of the premises, claiming title under said conveyances) for assignment of her dower therein and for damages. Afterwards, in December, 1887, and while that suit was pending, the said Louisa C. Lane died, having first made her last will and testament, in which, after making various specific bequests, and setting aside $4,000 for the care of her pet dogs, "Tom" and "Rover," so long as they shall live, she appointed William H. Phelps, Esq., the executor

thereof, with power "to sell and convey my real estate, without the order or the authority of the probate court or other court, and also to carry out the directions of this will without order or direction of any court; and, should there be any estate left after paying the expenses of executing this will and the payment of my debts, I direct that my executor distribute such sum to any such legatee herein named as to him shall seem best and proper, having due regard to my wishes expressed to him at the time of execution hereof." Her will was duly admitted to probate. Mr. Phelps qualified as executor. The suit was revived against him as such executor, and proceeded to final judgment in his favor on the 7th of October, 1889. Afterwards, on the 16th of September, 1891, the said Phelps resigned as executor, and on the 3d day of November next thereafter the defendant Ulysses Hendrixson was appointed administrator de bonis non with the will annexed, and at the September term, 1893, of the Jasper circuit court the present suit was commenced, the answers in which contained a general denial, a plea of res adjudicata, and a plea setting up valuable improvements made by the said decedent and her executor and administrator, and praying that the increased value of the land by reason of such improvement be considered in the assignment of plaintiff's dower. The case was tried by the circuit court without a jury, and judgment rendered assigning and setting off by metes and bounds about 30 acres of the land to the plaintiff as her dower therein, and for $450 for her damages, and for costs, from which defendants appealed.

The circuit court declared the law of the case in the form of instructions, from which it appears that the court held that the plaintiff's action was not barred against any of the defendants by the judgment in favor of the executor in the former suit. Counsel for defendants contend that in this the court committed error, and this is the only ground urged for reversal, except a formal error, which has been corrected nunc pro tunc since the appeal, and the error waived. The judgment in the former suit was based upon a general finding of the issues for the defendant executor. Upon the trial the plaintiff introduced, from the files, the instructions given in that case, from which it clearly appears that the court then held that the plaintiff could not recover because the executor, who was the sole defendant therein, was not the proper party to be sued. Judge McGregor, of counsel for defendants, was also introduced as a witness by the plaintiff, who testified as follows: "My recollection is that I held that the plaintiff could not recover because of the fact that she had not sued the right party. She had sued the executor, Phelps, and the heirs and legatees under the will did not seem to be brought in." While objections were made to the admission of this parol evidence below, they are not urged and need not be discussed here, since the instructions are themselves clear on this point, and this evidence may be regarded as superfluous and unprejudicial. It thus appearing