65 Pa. 476; Katz v. Moore, 13 Md. 566; Waldrom v. Letson, 15 N. J. Eq. 126; Loss v. Obry, 22 N. J. Eq. 52; Wardlaw v. Wardlaw, 50 Ga. 544; Gwinn v. Newton, 8 Humph. (Tenn.) 710; Murphy v. Johnson, 107 Tenn. 552, 64 S. W. 894; Palmer v. Bethard, 66 Ill. 529; Chapman v. Hurd, 67 Ill. 234; Henry v. Seagar, 80 Ill. App. 172; Barthell v. Roderick, 34 Iowa, 517. Those decisions fully support the proposition that respondent is entitled to relief against the enforcement of the alleged judgment as it appears on the record of the county court. We find a few cases to the contrary, and holding equity is powerless in such a contingency. Bank v. Patterson, 8 Humph. (Tenn.) 363, 47 Am. Dec. 618; Bank v. Young, 2 Ind. 171, 52 Am. Dec. 501; Cooper v. Butterfield, 4 Ind. 423. It should be said that in the case last cited the court recognized the right of equity to interfere in a grave emergency produced by an erroneous entry of judgment; and the present case presents an instance of such an emergency probably of enough gravity to meet the requirements of the opinion. The general doctrine which governs relief against judgments due to fraud, accident, or mistake was declared by Chief Justice Marshall in Marine Ins. Co. v. Hodgson, 7 Cranch (U. S.) 336, 3 L. Ed. 362, in terms which have been generally approved and followed; i. e., any fact which clearly proves it to be against conscience to execute the judgment, and of which the injured party could not have availed himself at law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with fault on his part, will justify the application to a court of equity. Bassett v. Henry, 34 Mo. App. 548; Wilhite v. Ferry, 66 Mo. App. 453; Davis v. Staples, 45 Mo. 567. Some of the cases we have cited are enough like the one at bar to involve the very point of law at issue. For instance, Smith v. Wallace, 1 Wash. (Va.) 254, in which the clerk of a court had, under a mistake of fact, entered a plea for a sheriff in a certain case which resulted in a judgment afterwards going against the sheriff. It was held that, as the law court could have corrected the mistake if attention had been called to it in time, it would be strange if so palpable an error could not afterwards be changed by a court of equity, whose peculiar province it is to grant relief in such cases. In Colwell v. Warner, 36 Conn. 224, the suit was to enable the complainant, a mortgagor, to redeem the mortgaged premises which had been sold under a decree of foreclosure. The decree was entered by agreement on the understanding it should contain a clause limiting the mortgagor's right to redeem to a period ending May 1, 1864. In entering the decree from accident or mistake this proviso was not recorded, but a blank was left therefor by the clerk and never filled. In answer to the suit to redeem, the purchaser at the foreclosure sale set up these facts, and insisted the complainant was deprived of his equity of redemption by failing to exercise it in the time limited in the judgment as pronounced. The court found the allegations of the answer to be true, and not only denied the right to redeem, which otherwise the complainant would have enjoyed, but amended the decree in conformity to the answer. Perhaps the most striking case in the books is Byrne v. Edmonds, 23 Grat. (Va.) 200. The Supreme Court of Appeals of Virginia had been led into entering a judgment which deprived an annuitant of the annuity devised to her in a will. The error was due to a misprint in the record, which was before the court when it construed the will. Some years afterwards a suit in equity was filed in a court of first instance to correct this decree of the Supreme Court of Appeals, and the accident which caused it having been clearly established, the decree was corrected by the inferior court, and judgment entered in a large sum for arrears of annuity. The right of the lower court to do this was upheld on appeal by the Supreme Court of Appeals. Not less pertinent to the case in hand are several of the other decisions we have collated. But it is insisted the record of the judgment of the county court imports absolute verity, and can only be impeached by some matter of record contained in the judgment roll. This is true when an amendment at law is sought. Belkin v. Rhodes, 76 Mo. 643. Equity always has accepted parol evidence in certain cases of fraud, accident, or mistake, but requires it to be cogent and convincing before it will suffice for a decree to restrain a judgment. Davison v. Hough, 165 Mo. 561, 574, 65 S. W. 731; Smith v. Butler, 11 Or. 46, 4 Pac. 517; Gump's Appeal, 65 Pa., loc. cit. 478; Insurance Co. v. Chichocky, 94 Ill. App. 168, 170. In the case at bar the record of the county court cannot be corrected to recite the judgment actually pronounced, because we consider that judgment contrary to the statutes; but, as the one recorded was not rendered, its enforcement ought to be enjoined. The judgment of the circuit court went no further than to enjoin it, and will be affirmed. All concur. JENNINGS v. SWIFT & CO. (Kansas City Court of Appeals. Missouri. May 4, 1908.) 1. MASTER AND SERVANT ACTION FOR INJU RIES-CONTRIBUTORY NEGLIGENCE. Plaintiff was an employé in the fire department of a large packing plant. To familiarize him with the fire routes, a superintendent directed him to go over a certain route with which plaintiff was unfamiliar, pointing out a certain door as the entrance thereto. The door indicated was not the entrance to the fire route, but opened directly into a vat of boiling water, and plaintiff while going over that route for the first time before daylight by the aid of a lantern stepped into the vat, which was unlighted, and was injured. Held, that he was not negligent in attempting to pass through the door, as he was not bound to anticipate the presence of an unguarded vat immediately inside it. [Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 694.] 2. DAMAGES INSTRUCTIONS. In an action for personal injuries, where defendant did not request a charge confining the jury in assessing damages to expenses necessarily or reasonably incurred, and there was no contest on that head, and the evidence was unquestioned, defendant could not complain because an instruction on the measure of damages did not so confine the jury. ELLISON, J. This action was instituted to recover damages for injuries received by the plaintiff through the alleged negligence of the defendant. Plaintiff prevailed in the trial court. Defendant is the owner and operator of a large meat packing establishment in St. Joseph, and in connection therewith maintains and operates а fire department therein. Plaintiff was employed by defendant in such department, and, being a new employé, he was being shown or taught the fire routes (six in number) in addition to other service connected therewith. This was done by sending him over the routes so as to familiarize him with them. He had been engaged only about nine days, had learned some of the routes, and was told by the superintendent of that department to go over route 3, and the superintendent pointed out a door which he said was the entrance thereto. Under the order of the superintendent, plaintiff started to go over the route before it was light on the morning of November 14th, and took a lantern with him. The door he had been told to enter was not the right one, and, as he opened it and took a step, he plunged or fell into a vat of hot water which was in the floor immediately at the door on the inside. His leg was badly scalded. The plaintiff stated in testimony that, on entering the door he had been told was the one to enter, "the first step I stepped off, just like that [indicating] and I just went right down in scalding water." Complaint is made of the action of the court on defendant's instructions. First. It is insisted that a demurrer to the evidence should have been sustained on account of plaintiff's contributory negligence in carelessly entering, or attempting to pass through, the door. We can see no ground for characterizing plaintiff's conduct as being careless. He had never been in the room. He did not know of the vat of water, and we do not understand how any reasonable man could be held to have anticipated that such dangerous agency should be in the floor, unguarded, immediately inside of a door. This question was asked plaintiff by defendant: "Q. You went over to that side of the building now. Never having been in there before, not knowing whether or not they had a grizzly bear in there or a vat of boiling water, you simply walked up there and walked in without looking? A. I simply went over there, as I was going on the route." It seems to us that plaintiff could about as reasonably have been required to expect to find a grizzly bear in the room as an unprotected vat of boiling water in the floor of a dark room, and that right at the door. The most natural thing to expect on entering a door is that the immediate inside is a floor upon which one may step. The case is very greatly stronger for plaintiff than was that of Musick v. Packing Co., 58 Mo. App. 322, wherein we sustained a judgment against the company. The court modified defendant's instruction submitting plaintiff's contributory negligence in not seeing the vat by putting in, at the proper place, the words "considering his knowledge of the plant and his situation." This amendment to the instruction was proper and wise. So we think no just criticism can be made of plaintiff's instruction one, especially in view of the concluding sentence as to plaintiff exercising due care. Neither is there good ground for criticism of instruction No. 2, as to the measure of damages. It is said that the instruction should have explicitly confined the jury to expenses necessarily or reasonably incurred. Where there is any ground for contest on that head, the instruction should be so guarded. But in this there was no point of that nature made, and the evidence itself was unquestioned. Defendant did not ask an instruction on the subject. Some effort is made against plaintiff's case grounded on admissions he is said to have made in testimony. We have gone over these and find nothing of substance in them. An instruction, No. 13, was asked by defendant directing the jury that admissions by plaintiff against himself while testifying were conclusively true. The instruction was wholly improper. Zander v. Transit Co., 206 Mo. 445, 103 S. W. 1006; Sheperd v. Transit Co., 189 Mo. 362, 87 S. W. 1007; Conner v. Railway Co., 181 Mo. 397, 81 S. W. 145. The question was decided in the same way by this court in Ephland v. Railway Co., 57 Mo. App. 147, 162. The only ground upon which there was any room for contest of plaintiff's case was on the weight of the evidence, and that is an objection which should be, and doubtless was, urged before the jury. They have believed the case as detailed by plaintiff in his testimony, and we see no ground whatever for interference. The judgment will therefore be affirmed. All concur. HEARSH v. GERMAN FIRE INS. CO. OF PITTSBURG. (Kansas City Court of Appeals. Missouri. May 4, 1908.) 1. INSURANCE-FIRE INSURANCE-ACTIONS-ISSUES-PROOF OF TERMS OF POLICY. Where, in an action on a fire policy, the petition alleged the destruction of the policy before delivery, and the answer admitted the issuance of the policy and set out several of its provisions, including the stipulation that it should be void on insured procuring other insurance, and the reply relied on a waiver of the stipulation, the pleadings supplied the proof of the terms of the policy authorizing a recovery. 2. CONTRACTS-MERGER OF CONTEMPORANEOUS AGREEMENTS. All contemporaneous and prior agreements are merged in a written contract. 3. SAME CONDITIONS-FORFEITURE-Waiver. Where a contract includes a provision which, if not complied with, involves a forfeiture, and the party for whose benefit the provision is inserted, knowing that the adverse party is not complying with the provision, makes no objection and acquiesces therein, he waives the forfeiture. [Ed. Note. For cases in point, see Cent. Dig. vol. 11, Contracts, § 1129. 4. INSURANCE-FORFEITURE-Waiver. An oral agreement for insurance called for a policy permitting concurrent insurance. The policy issued by the agent of the insurer did not comply with the terms of the oral agreement. The agent received the premium without notifying insured that concurrent insurance was forbidden by the policy. The policy was destroyed before its delivery to insured. Held, that insurer waived a forfeiture of the policy on the ground that insured had additional insurance. 5. SAME-ACTION ON POLICY-REFORMATION OF POLICY. In an action based on a written policy, insured may recover, though the policy does not express the actual agreement entered into between the parties, and though the policy is not first reformed. Appeal from Circuit Court, Jackson County; E. P. Gates, Judge. Action by S. B. Hearsh against the German Fire Insurance Company of Pittsburg. From a judgment for plaintiff, defendant appeals. Affirmed. Fyke & Snyder, for appellant. Edwin Camack, Paxton & Rose, and Karnes, New & Krauthoff, for respondent. * Clinton, the duly authorized agent of defendant, * and on behalf of defendant said agent agreed with plaintiff for a valuable consideration in the way of premium to be paid by plaintiff to insure said stock of goods against loss by fire for the sum of $2,000 for a term of one year; and afterwards, as plaintiff is informed and believes, said agent wrote out and executed a policy of insurance to comply with said agreement, but said policy was never delivered to this plaintiff, because it was burned by a fire which destroyed the office of said agent. On February 15, 1906, plaintiff paid said agent the premium on said insurance, which said agent accepted and gave plaintiff a receipt on the letterhead of said defendant in words and figures as follows: [Here follows a copy of the receipt.]" The petition alleges the destruction of the goods by fire, that notice of loss was duly given, and that plaintiff requested defendant to furnish him with blank forms on which to make out proofs of his loss, but that defendant failed and refused to furnish such blank forms, and for that reason he has not furnished such proofs of loss. The defendant's answer admits that plaintiff made application for insurance of his stock of goods as described, that it issued to him a policy insuring the same, and that it filed a true and correct copy of the same as so issued. The answer then proceeds to set out several of the provisions of the policy, among which is one to the effect that "this entire policy, unless otherwise provided by agreement indorsed hereon or added thereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or otherwise, on property covered in whole or in part by this policy." The answer then proceeds to set up that plaintiff at the time he procured said insurance had other insurance of his property. The plaintiff replied to defendant's answer to the effect that at the time the contract of insurance was entered into the defendant's agent knew he had other insurance, and that it was his duty to so state in the policy, but whether he did so or not plaintiff has no means of knowing, as the policy was burned before it was delivered; "but plaintiff says that defendant cannot avoid its policy by reason of its own error in failing to insert a provision for such concurrent insurance," and nor did plaintiff, "having never seen the policy ratify or assent to any such omission." The plaintiff introduced evidence tending to prove the amount of goods he had at the time of insurance and their destruction by fire; that defendant had knowledge of other insurance and notice of loss, and submitted his case to the jury without introducing a copy of the policy or proof of its contents. The defendant offered a demurrer to plaintiff's case, which the court refused. Whereupon defendant offered an abridged form of the policy, which the court, upon objection of the plaintiff, excluded. The find ing and judgment were for the plaintiff, from which defendant appealed. Instruction numbered 2, given at the instance of plaintiff, indicates the theory upon which the plaintiff submitted his case. It reads as follows: "The court instructs the jury that if you find from the evidence that S. B. Hearsh at the time he applied to defendant's agent G. W. Clinton for insurance told said Clinton that he had other insurance (specifying what), or if you find from the evidence that said agent Clinton at the time of such application knew of such concurrent insurance, then the fact that such concurrent insurance existed constitutes no defense to this action, even though you further find and believe from the evidence that there was no permit for such concurrent insurance written in the policy made out by such agent.” We will assume from the instruction that the plaintiff's recovery was upon the policy described. The contention of the defendant is that plaintiff was not entitled to recover on the policy because it was not offered in evidence, that there was no proof of its contents, and that plaintiff did not prove a compliance with the terms of such policy. As the plaintiff could not file the policy of insurance which would have proved the terms of the contract of insurance, he was put to the necessity of showing what the terms were, unless the admissions in defendant's answer supplied such proof. We are of the opinion that the statement in the defendant's answer that it issued a policy upon plaintiff's goods, and the further statement of the terms and conditions of the policy, taken in connection with the admission in plaintiff's reply, was sufficient proof of the contents of the destroyed policy. Plaintiff by his reply admits that he did not comply with the terms of the policy set up as a defense, but justifies it on the ground that the conditions were waived. The argument of defendant is that, as there was no proof of a waiver of the conditions of the policy after it was issued, plaintiff was not entitled to recover. To support such view we are cited to Gillum & Co. v. Fire Association, 106 Mo. App. 673, 80 S. W. 283. That was a case where there was an agreement between the agent and the insured before the policy was issued that the insured would not be required to comply with the "inventory and iron-safe clause" usually written in such policies. But at the time they accepted the policy they made no obligations to it for that reason. The holding there is undoubtedly in keeping with the general rule that all contemporaneous and prior agreements are merged in the written contract. But the court in a recent case reviewed said case in connection with the case of Ijams v. Insurance Co., 185 Mo. 466, 84 S. W. 51, and approved the rule stated, yet held: "But that such stated rule is in no way contradictory of, and is in no way inconsistent with, the further rule that the obligation of a written contract may be waived by the conduct of the parties oc curring after its execution. If a contract includes provisions which, if not complied with, involves a forfeiture, and the party for whose benefit the provisión is inserted, knowing the other party is not complying with them, makes no objection and acquiesces therein, he waives the forfeiture." Riley v. Insurance Co., 117 Mo. App. 229, 92 S. W. 1147. This seems to be the rule in this state. Thompson v. Traders' Co., 169 Mo. 12, 68 S. W. 889; Polk v. Western Assurance Co., 114 Mo. App. 514, 90 S. W. 397. This case in one particular is unlike any of those referred to. The plaintiff made his contract for insurance in pursuance of the terms upon which he had the right to assume the defendant would issue to him a policy. The agent issued the one referred to, which did not comply with the terms of the oral agreement for concurrent insurance, which, as we have seen, was destroyed by fire, and which he never saw. The agent with full knowledge of such fact received the premium of $30 without notifying plaintiff that concurrent insurance was forbidden by the terms of the policy. There is nothing to be found in any cases referred to that would prevent plaintiff from recovering under such circumstances, as he had no knowledge when he paid the premium that the policy contained a clause forbidding concurrent insurance. Here we are confronted with defendant's proposition that plaintiff could not recover on the policy until it was reformed, and that he was not authorized to recover on the verbal contract of insurance, as his action was not based on such a cause of action. No doubt but what such is the general rule, but it does not exist in actions on fire insurance contracts. In Riley v. Insurance Co. the action was based upon a written policy, yet the plaintiff was permitted to recover notwithstanding it had not been reformed so as to express the actual agreement entered into between the parties. And to the same effect is Thompson v. Traders' Co., 169 Mo. 12, 68 S. W. 889; Hanna & Co. v. Insurance Co., 109 Mo. App. 152, 82 S. W. 1115. Finding no error in the case, the judgment is affirmed. All concur. CAMPBELL GLASS & PAINT CO. v. DA- 1. MECHANICS' LIENS-PAYMENT. A materialman who furnishes glass to a contractor for several different jobs is not prevented from having a mechanic's lien because, when payments are made to him by the contractor, he does not ascertain from which job the money comes and apply it thereon. 2. PAYMENT APPLICATION. Where a materialman furnishes glass to a contractor having several jobs, and the contractor makes general payments to him, in the absence of application by the parties, they will be applied, not necessarily on items for which there is a right of lien, but to the oldest items of the account. [Ed. Note. For cases in point, see Cent. Dig. vol. 39, Payment, § 123.] Appeal from Circuit Court, Jackson County; Frank P. Walsh, Special Judge. Action by the Campbell Glass & Paint Company against the Davis-Page Planing Mill Company and others. Judgment for plaintiff. Defendants appeal. Affirmed. J. C. Petherbridge, for appellants. Karnes, New & Krauthoff and John N. Davis, for appellee. The BROADDUS, P. J. This is a suit to enforce a mechanic's lien on certain real property situated in Kansas City, Mo., for furnishing glass that went into a building erected thereon to the extent of $730. The defendant Raymond Du Pay was the owner of the building at the time the material was furnished. The defendants Pinare & Tarry were the original contractors. The defendants the Davis-Page Planing Mill Company had a subcontract with the original contractors to furnish the millwork and the glass for the building, while in turn they let the contract to the plaintiff to furnish the glass. The plaintiff furnished the glass during the latter part of December, 1905, and in January, 1906. At the same time they were furnishing glass to the Davis-Page Company, who were engaged on a number of other contracts. The general contractors, Pinare & Tarry, paid the Davis-Page Company on February 2, 1906, $674.40, the balance which they owed them, and on the same day the latter turned over $500 of that money to the plaintiff. plaintiff during the progress of the work received from the Davis-Page Company various sums of money, viz.: On December 28, 1905, $300; on January 13, 1906, $300; on February 2d, $500; and on February 24th, $554.94-in the aggregate $1,654.94. Thereafter the Davis-Page Company went into bankruptcy, owing the plaintiff $1,461.91 for material furnished on various contracts, including a part of the one in question. At the trial the court refused to permit the original contractors, Pinare & Tarry, to show that the $500 payment made by the Davis-Page Company on February 2, 1906, was money which came from Pinare & Tarry on the contract they had for the building on Grand avenue upon which it was seeking to enforce its lien. When the $500 was paid by the Davis-Page Company the plaintiff credited that company on the part of its indebtedness then due, which included no part of the debt in controversy. There was no direction from the latter to apply it on any particular indebtedness. The debt sued on was a specific charge against the Grand avenue building. The court gave specific instruction that the jury return a verdict for $730, with interest, and they find that the plaintiff is entitled to enforce its lien against the real estate described. The jury returned a verdict in accordance with the instructions, upon which judgment was rendered, from which defendants appealed. The contention of the appellants is that, as plaintiff mixed the money received from all the different contracts and kept no separate account of each job as to payments, he was not entitled to secure a mechanic's lien for unpaid balance because he did not know to which job it belonged. In support of this view of the case we are referred to the case of Gauss v. Hussmann, 27 Mo. App. 115; but it has no application to the question whatever. That applies to a case where there was such a mingling of items for which the law gave no lien with those for which a lien may be had that they could not be separated upon a mere inspection of the account. There is no complaint that in this case there was any such mingling of items. The argument is, however, that if it is true that there can be no lien where there is such a commingling of items, it ought to be true, also, that where one furnished materials for several jobs, and is receiving during the time money from all and does not know from which job it comes, but mixes and mingles it all together and is unable to separate it, no lien should be allowed. We are not impressed with the soundness of the argument. If plaintiff's dealings had been with different contractors, the accounts with each should have been kept separate. We do not think, however, where the dealings were with a single contractor, who had different contracts going on at the same time, that he was bound to ascertain from what particular contract the contractor realized the money with which he made payments. No such burden is imposed by the statute. He was not required to keep an account of the money transactions of his contractor and the original contractor or the owner of the building. He had no lien on any particular fund. The other contention of defendant is that "a payment by the owner or contractor to a subcontractor, without any direction as to its application, the law will apply it to those items for which the subcontractor has a lien right, and, if suit is brought for the full amount claimed on the lien, such payment should be deducted from the total amount claimed." To support this proposition we are cited to the case of Nelson v. Withrow, 14 Mo. App. 270. And such is the holding in that case. In that case, however, the owner of the building had paid $700 to the subcontractor, who was seeking to enforce his lien, and as it turned out that this sum was greater than the amount for which he was entitled to a lien the court directed that the payment be directed first to its discharge instead of applying it to that part of the account for which no lien existed. We do not think the facts of the case bring it within the rule applicable to this one. In Gantner v. Kemper, 58 Mo., 567, a case where there were different debts as in this and payments |