Mo.)

where the circumstances of the death are unknown, or if a person die, and the circumstances of his death, being known, "indicate that he has been foully dealt with," information shall be given to the coroner. In both of these classes of cases the statutes make it the duty of the coroner, upon the receipt of such information, to hold an inquest; and, if it be found by the inquisition that the death of the deceased was caused by the act, abetment, procurement or command, or counsel of any person, it is made the duty of the coroner to cause the arrest of every such person, if not already under arrest, "unless ft appears by the inquisition to be a case of excusable homicide." Sand. & H. Dig. §§ 751764. The duties of the coroner, upon the receipt of the information that shall be given him, as defined by the statute, clearly indicate that the object in requiring the information to be given is to prevent the escape of the guilty. Consequently it is the duty of the coroner to hold an inquest over the body of a deceased person, upon the receipt of information of the circumstances of his death which indicate that some one might be criminally liable; for, the killing being known, the presumption is that the slayer is guilty of a crime, in the absence of circumstances that justify or excuse the homicide. Sand. & H. Dig. § 1643.

We therefore think the judgment in this case should be affirmed; and it is so ordered.

H. C. POLLMAN & BROS. COAL & SPRINK-
LING CO. v. CITY OF ST. LOUIS.
(Supreme Court of Missouri, Division No. 2.
Oct 17, 1898.)

COMPROMISE-UNLIQUIDATED CLAIM-ACCEPTANCE

UNDER PROTEST.

1. Plaintiff's claim is an unliquidated one, so as to be the subject of compromise, though the dispute is only as to whether damages to fire and sprinkling plugs was caused by it, where it did street sprinkling for defendant city under a contract that it should receive a certain amount therefor, but that from such sum there should be deducted any damages to the fire and sprinkling plugs caused by it.

2. Acceptance of a sum tendered on the express condition that it be received and receipted for in full of an unliquidated claim is not affected by the fact that at the time of such afceptance and the giving of such receipt a written protest is filed, stating that the balance claimed will be insisted on.

Appeal from St. Louis circuit court.

Action by H. C. Pollman & Bros. Coal & Sprinkling Company against the city of St. Louis. Judgment for defendant. Plaintiff appeals. Affirmed.

Lubke & Muench, for appellant. B. Schnurmacher and Chas. Claflin Allen, for respondent.

GANTT, P. J. This cause is here upon appeal from a judgment in favor of defendant on a demurrer to plaintiff's reply. Plaintiff

563

was one of the street-sprinkling contractors for the year 1893. It procured five contracts for sprinkling five districts of the city, beginning March 15 and ending December 1, 1893. Each of said districts embraced certain streets and public places of the city, and each contract provided for the payment of a certain lump sum to plaintiff for the work to be done. Payments were to be made upon monthly certificates or estimates, covering 90 per cent. of the amount of work done during the month, the remaining 10 per cent. to be certified in favor of plaintiff upon the full completion of each contract to the satisfaction of the street commissioner. One of the provisions of the contract was to the effect that the contractor should exercise great care in operating the fire and sprink ling plugs, out of which he was permitted to obtain water free of charge, and that all repairs of damages or injuries done by the contractor or his employés to such plugs should be made by the water commissioner of the city, said commissioner to report the cost thereof to the street commissioner, and the latter to deduct the amount from any moneys due the contractor under the contract. Payments were made to plaintiff from time to time until the close of the sprinkling season. At that time the street commissioner made out estimates of the total amount of work done under each of the said contracts, and, after deducting therefrom payments theretofore made on account, and in each instance a certain sum for repairs to fire and water plugs, forwarded said estimates and statement to the president of the board of public improvements, who approved the same, and forwarded them to the city auditor, who in turn allowed the same. Thereafter, on December 22, 1893, plaintiff received and accepted from said auditor warrants upon the city treasurer for the amounts thus allowed, which warrants he presented for payment, and on December 23, 1893, received the amounts called for in each, and in each instance signed a receipt in full payment and satisfaction of the account, and of all claims against the city. All of the foregoing matters appear in the petition and answer in the case. Plaintiff thereupon filed a reply to the answer, in which plaintiff substantially admits all of the foregoing facts, but denies that the amounts charged against it for repairs to fire and sprinkling plugs were properly charged, because plaintiff avers that no damage or injury was done to them by any of its employés, and that whatever repairs were made were in consequence of the usual and ordinary wear and tear of the plugs, or for injuries inflicted by parties other than plaintiff. The reply admits that plaintiff received the amounts tendered by defendant, and that plaintiff executed receipts in full, as averred in the answer; but set forth that on receiving said several amounts, and on signing and delivering said several receipts, plaintiff protested against the deductions, denying

liability therefor, and asserting in the protest that it signed said receipts only because they were "forced" on plaintiff by the city, and because plaintiff "could not help itself, and needed said money." To this reply defendant demurred generally on the ground that the same did not contain matter sufficient to overcome the effect of plaintiff's act in receiving the money tendered it, with the condition annexed thereto that the same was in full discharge of all of plaintiff's claims, or to overcome the effect of plaintiff's releases. The demurrer was sustained, and judgment thereupon entered in favor of defendant upon the pleadings, from which judgment plaintiff has appealed.

Plaintiff's contention is that it is entitled to recover in this action the amounts withheld for repairs to plugs, notwithstanding the foregoing facts, on the well-established proposition of law that, where a debt is undisputed and certain, payment of a less amount than the whole will not bar an action for the recovery of the balance. Defendant acquiesces in this proposition fully, but contends that it has no application to the case at bar. On the contrary, defendant claims that in December, 1893, a controversy did arise and exist between the parties as to the proper meaning of their contracts, and as to the amounts due and payable thereunder; and that, the tenders to plaintiff having been conditional, and plaintiff having accepted the same, and having executed the releases referred to in the answer, plaintiff should not now be permitted to maintain suit to recover the alleged balance.

1. It is well-settled law that the payment of a part of a debt or of liquidated damages is not a satisfaction of the whole debt, even when the creditor receives the part for the whole, and receipts for the whole demand. Riley v. Kershaw, 52 Mo. 224; Willis v. Gammill, 67 Mo. 730; Tucker v. Bartle, 85 Mo. 114. But this doctrine has no application in cases of fair and well-understood compromises of unliquidated or disputed demands faithfully carried out, nor in those cases in which a new consideration enters into the stipulations for the release of the whole debt by paying a portion only; as, for instance, if a part be paid before the whole is due or could be demanded, or if the payment of a part be more beneficial in any way to the creditor than that prescribed by the contract. Riley v. Kershaw, 52 Mo. 224; Tanner v. Merrill (Mich.) 65 N. W. 664; Ostrander v. Scott, 161 III. 339, 43 N. E. 1089. Defendant readily concedes the foregoing propositions, but insists that this case is not affected by them. The learned city counselor maintains, first, that a controversy arose out of the contracts of plaintiff with the city as to certain set-offs for injuries to the fire and water plugs; that the city claimed that plaintiff's servants had wrought the injury, and, this being true, the city was authorized by the contract to have the injuries repaired, and

the cost deducted from the contract price; and, having made such claim and deduction, and tendered plaintiff the contract price, less these deductions, in full satisfaction, and not otherwise, plaintiff was bound either to reject the tender as made or accept it in full, and, having accepted it, is estopped to complain now that it was insufficient. Plaintiff insists there was no dispute, but merely the claim of a set-off; and, secondly, that it received the tender under written protest. The assumption of plaintiff that there was not and could not be a disputed claim, because the amount of plaintiff's claim was fixed by contract, is not tenable. The amount due the plaintiff was as much in dispute by virtue of the claim made by the city for repairs to the fire and water plugs as if the plaintiff had failed in some essential of its contract. Its claim cannot be held as liquidated when the balance due it was fairly in dispute as to the amount of set-off the city claimed. While we should consider it evident upon sound principles that the claim of plaintiff was unliquidated by reason of the claim of the offset, we are also fortified by eminent authority in so ruling. Thus, in Ostrander v. Scott, 161 Ill 339, 43 N. E. 1089, it was said: "It is claimed that the account of the plaintiff was liquidated because its items were not disputed. But, if there was a controversy over a set-off, and the balance due the plaintiff was fairly in dispute, the claim could not be treated as liquidated." In Tanner v. Merrill, 65 N. W. 664, the supreme court of Michigan, in a matter very similar to the case at bar, said: "Upon the undisputed facts the claim of the plaintiff as made was not liquidated. It was not even admitted, but, on the contrary, was denied, because the defendant claimed that it had been partially paid by a valid offset. While the controversy was over the offset, it is plain that the amount due plaintiff was in dispute." In view, then, of the contract, the claim made by defendant, and the written protest of plaintiff, we hold that there was a dispute as to the amount due plaintiff.

We are then brought to consider the effect of plaintiff's action in receipting the city in full payment for its work, and releasing it from all claims and demands whatsoever that might arise out of said contracts. It is not charged that any fraud was perpetrated in obtaining plaintiff's signature to said receipts. With a full knowledge of all the facts, and after the respective claims of each party had been fully discussed, the defendant tendered the several amounts on each of said contracts in full payment and satisfaction of plaintiff's claims, and plaintiff so accepted them, and released defendant. This court, in Adams v. Helm, 55 Mo. 468, held that, when a tender was made in settlement of a disputed claim, it was the duty of the party to whom it was made "either to refuse it or accept it on the terms as made"; that "she had no right to accept the tender, and prescribe the terms of her acceptance." In Perkins v. Headley, 49

Mo. App. 556, the St. Louis court of appeals said: "But if there is a controversy between the creditor and his debtor as to the amount which is due, and if the debtor tenders the amount which he claims to be due, but tenders it on condition that the creditor accept it in discharge of his whole demand, and the creditor does accept it, that will be an accord and satisfaction as a conclusion of law; the principle being that one who accepts a conditional tender assents to the condition; he cannot take the money and reject the terms on which it is tendered." That the tender in the case at bar was upon the express condition that it was to be received and receipted for in full clearly appears from the pleadings, and it must be held that plaintiff accepted the same in full satisfaction of its several contracts. Such is to-day the great weight of authority. Adams v. Helm, 55 Mo. 468; Ostrander v. Scott, 161 Ill. 339, 43 N. E. 1089; Tanner v. Merrill (Mich.) 65 N. W. 664; Fuller v. Kemp, 138 N. Y. 231, 33 N. E. 1034. But plaintiff seeks to parry the effect of the foregoing rule by the fact that, although it received the amounts tendered, and receipted in full for all claims growing out of said contracts, it filed a written protest at the time of so doing, notifying the city it would insist upon the balance claimed. What effect in law is to be ascribed to these protests under these circumstances? We think the law is settled that where, as in this case, a debtor tenders a certain sum in full satisfaction of an unliquidated demand, and the creditor accepts and retains the money, his claim is satisfied, and no protest on his part will destroy the effect of his acceptance of the tender. Fuller v. Kemp, 138 N. Y. 231, 33 N. E. 1034; McDaniels v. Lapham, 21 Vt. 222; McGlynn v. Billings, 16 Vt. 329; McDaniels v. Bank, 29 Vt. 230; Buel v. Buel, 43 Conn. 455; Potter v. Douglass, 44 Conn. 541. Our conclusion is that the circuit court correctly sustained the demurrer to the reply, and the judgment is accordingly affirmed.

SHERWOOD and BURGESS, JJ., concur.

JUDSON et ux. v. MULLINAX. (Supreme Court of Missouri, Division No. 2. Oct. 17, 1898.) REFORMATION OF INSTRUMENTS-MISTAKE - EVI

DENCE.

Plaintiff sold defendant a piece of land, a portion of which was described in the deed as "64 feet and 5 inches off the west side of lot 12." While the negotiations were pending, they made an examination of the land in a general way. There was a fence running through lot 12, and defendant asked plaintiff if that was the line, to which plaintiff replied that he supposed it was near it. Defendant said that he would have a survey made if he purchased. The description in the deed was the same as that contained in the deed received by plaintiff from the original owner of the whole tract. After the sale, it was discovered that a portion of the land conveyed to

defendant, in lot 12, was across the fence, and did not belong to plaintiff, who brought suit to reform the deed. There was no mistake made by the scrivener drawing the instrument. Held, that the evidence was insufficient to show any mistake that would warrant equity in reforming the instrument.

Appeal from circuit court, Mercer county; P. C. Stepp, Judge.

Suit by William W. Judson and wife against George T. Mullinax. From a judgment in favor of defendant, plaintiff's appeal. Affirmed.

H. J. Alley and H. G. Orton, for appellants. M. F. Robinson and Ira B. Hyde, for

respondent.

GANTT, P. J. This is a suit in equity to reform a warranty deed executed by plaintiffs to defendant, on the 9th of August, 1894. The description of the land in the deed is in these words: "The following described lots, tracts, or parcels of land, lying, being, and situate in the county of Mercer and state of Missouri, to wit: All lots Nos. two (2) and eleven (11) in Clements' addition to the town of Princeton, and all that part of Clements' addition bounded as follows: Commencing at the southeast corner of said lot eleven (11), and running thence east seventeen (17) feet, and thence in a northerly direction to the northeast corner of said lot two (2), and thence in a southerly direction, along the last line of said lots (2) two and (11) eleven, to the place of beginning. Also all that part of said lot one (1) bounded as follows: Commencing at the north part of said lot one (1), and running south, along the east line of said lot one (1), two hundred and nineteen (219) feet and eight (8) inches; thence west, to the east line of the tract last described; thence in a northerly direction, to the place of beginning. Also, all that tract of land between said lot two (2) and Oak street, as now located. Also, lot thirteen (13), and sixtyfour (64) feet and five (5) inches off the west side of lot twelve (12), in Clements' addition to the town of Princeton." Plaintiffs allege that in writing said deed the same was 'so drawn as to include and convey a part of said lot 12 not intended by the parties to said deed to be included in and conveyed thereby, in this: That the said deed purported to convey 64 feet and 5 inches off the west side of said lot 12, instead of "all that part of said lot twelve west of said post and board fence," which said post and board fence commenced at the south end of said lot 12 at a point 17 feet 5 inches east of the southwest corner, and runs thence northerly to the north line of said lot 12, and 34 feet east of the northwest corner of said lot. The accompanying plat A will more clearly indicate the lines of the several lots and tracts as set out in the deed. The red line through lot 12 shows the location of the east line of defendant's land according to the deed. The dotted line running north and south through

(2) And the court further finds that the defendant made a personal inspection of the premises at the time of negotiating the purchase, and knew in a general way of the location of the fence separating the said pas ture lot from the Boyd and Lane property, and did not at the time understand that he was buying any part of the Lane and Boyd property, as then the same was inclosed. (3) The court further finds as a fact that, at the time the trade was made, the defendant knew that the part of lot 12 east of the fence was inclosed and used by other parties, and that the plaintiff did not claim it as a part of the property sold to defendant, except that there was no agreement that said fence was to be taken as the exact line. (4) The court further finds that at the time of the completion of trade the defendant did not believe or understand that he had purchased any part of the land east of the fence in controversy. (5) The court finds that, during the pendency of the negotiations for the purchase of the property, the defendant was advised that the said fence was on or about the boundary line between the pasture field bought by him and the Lane and Boyd property, and that he so thought and understood until long after the completion of the trade. The court finds the facts to be that the defendant and plaintiff, while the negotiation for purchase and sale of said property was pending, went on a part of said property, and where they could see across the same, and in a general way examine it, and that the plaintiff informed the defendant that the property had never been surveyed, but that the fences (save on the west) were supposed to be about on the line, but that no fence on said property, or inclosing any part thereof, was fixed as a monument or boundary line of said property. "The court finds that plaintiff believed he owned 64 feet and 5 inches off the west side of lot 12, and intended to convey to defendant, and defendant believed he was buying, said strip of 64 feet and 5 inches off the west side of said lot 12, and that the deed as written correctly described the land that plaintiff at the time believed he owned and intended to sell to defendant, except that he believed the fence was about the line." Upon the final hearing, the court dismissed the bill, and gave judgment for defendant, and, after unsuccessful motions for new trial and in arrest of judgment, plaintiff appealed to this court.

The heavy lines are the red lines referred to in the opinion.

The circuit court made a finding of facts as follows: "(1) The court finds as facts proven in this case that, at the time of the purchase by defendant of the property from the plaintiff, the property the plaintiff claimed to own was inclosed in three inclosures by fences, the inclosure on which was situated the house, the barnyard, and the pasture lot including lot thirteen and that part of lot twelve west of the post and board fence in controversy. And the court further finds that the part of lot twelve not in said pasture lot was inclosed and used at the time by other parties as a part of the Boyd and Lane property; and that on the land in controversy, east of said fence, was situate at the time an outhouse, a small privy, of the value of three dollars, belonging to the Boyd property; and that a part of the land in controversy, at the time, constituted a part of the garden and yard of the Lane property, and within thirty feet of the house thereon; and that the Boyd and Lane property, as then used and occupied, was separated from the

The evidence most clearly establishes that plaintiff's deed described the land just as Mrs. Thompson's deed to plaintiff described it. It conveyed exactly the amount of land which the plaintiff Judson thought he owned in lot 12. There was no evidence of any mistake in drawing the deed so far as the scrivener and defendant are concerned. The finding of the circuit court "that plaintiff believed he owned 64 feet and 5 inches off the west side of lot 12, and intended to convey

to defendant, and defendant believed he was buying said strip of 64 feet and 5 inches off the west side of said lot 12, and that the deed as written correctly described the land that plaintiff at the time believed he owned and intended to sell to defendant, except that he believed the fence was about the line," is almost conclusively shown by the testimony. The effort of plaintiff was to show that defendant understood he was only buying to the fence; but the evidence was that when Judson, the plaintiff, was showing defendant the property, they stood quite a distance from this rear portion of the lot, and defendant inquired of plaintiff if the fences were on the lines, and plaintiff replied: “I don't know. We have never taken a survey. I suppose they are something near it." To which defendant responded that, if he bought, "he would see that the fences were on the line; that he would have a survey made, and, when there were new fences, they would be put on the line." There was no agreement that the fence should be the line. All the evidence is inconsistent with such a theory. Mrs. Thompson had owned all the land in the plat, and had conveyed the land in the deed by the same description to plaintiff, and all the subsequent deeds were limited by the description in the Judson deed. That a court of equity may correct mistakes in, and reform, written instruments, is familiar law; but that the mistake must first be shown by clear and cogent proof, fully satisfying the chancellor, is equally well-settled law. This has not been done in this case. Sweet v. Owens, 109 Mo. 1, 18 S. W. 928; Bartlett v. Brown, 121 Mo. 353, 25 S. W. 1108. Fully concurring in the judgment of the circuit court, it is affirmed.

SHERWOOD and BURGESS, JJ., concur.

USSERY et al. v. CRUSMAN et al. ELLIOT v. CARNEY et al. (Court of Chancery Appeals of Tennessee. Feb. 11, 1898.)

INSOLVENCY

PARTNERSHIP-SPECIAL PARTNERS
SET-OFF-WILLS-CONSTRUCTION.

1. Under Mill. & V. Code, § 2404, providing that an affidavit shall be filed of one of the partners stating that the special partners have actually paid in, in cash, the sums specified in the deed creating the special partnership; and section 2406, providing that, if any false statement is made therein, all partners shall be deemed general,-where the aflidavit and recorded articles stated that a special partner had put in $65,000 cash, when in fact he had only contributed stock actually worth $40,000, he is liable as a general partner as to third parties, and as a special partner as to the other member of the firm, the good faith of the partners being immaterial.

2. Where testator had entered into an attempted limited partnership which, by reason of noncompliance with Mill. & V. Code, §§ 2399-2422, became a general partnership as to creditors, and he, by will, directed that the amount invested should remain in the busi

ness for the remainder of the term of said partnership, and that his executors should collect the profits, supervise the investment, and protect the interest of the estate, testator thereby continued the partnership, and made his estate liable to a general creditor on a firm note executed by the surviving partner after testator's death.

3. Under Mill. & V. Code, § 2420, providing that no special partner, in case of the firm's insolvency, shall be allowed to claim as a creditor until the claims of all the other creditors are satisfied, a debt from the firm to one who unsuccessfully attempted to become a special partner cannot be set off against an individual liability to contribute to firm debts as a general partner.

Appeal from chancery court, Montgomery county; C. W. Tyler, Chancellor.

Bills by Ussery and Gholson, executors, against J. J. Crusman and others, and by Thomas H. Elliot, administrator, against N. L. Carney, administrator, and others. There was a decree for complainants, and defendants appealed. Affirmed.

Burney & Bailey, for appellant N. L. Carney. Gholson & Lyle, for appellees.

WILSON, J. These two cases were heard together in the court below and before us. They raise the same questions of law, and, with one exception, present the same state of facts. The bills were filed to hold the estate of Bryce Stewart liable for the debt sued on, or such balance thereof as the assets of the firm of J. J. Crusman, under its general assignment, failed to pay. There was a demurrer to the bills by the administrator with the will annexed of Bryce Stewart; but for the present it is not necessary to state the grounds of the demurrer, nor to notice it, further than to say that it was overruled by the chancellor. The facts appearing in the record, proper to be stated to present the questions in the cases, are these: May 1, 1891, J. J. Crusman and Bryce Stewart entered into written articles of partnership to carry on a general grocery produce and whisky business in Clarksville, Tenn., under the firm name of J. J. Crusman. In the articles of partnership it was stated that Stewart was a limited partner, and that he had put into the partnership the sum of $65,000 in cash, made up of the original capital and its increase under a previous limited partnership existing between them, and operated under the same firm name, and a limited partnership existing before that, composed of Crusman, E. M. Howard, and said Stewart. The partnership of May 1, 1891, was, under the articles, to continue for five years. It appears that September 15, 1893, J. J. Crusman, acting for the firm, executed its note to B. W. Ussery, due in six months, and, to secure the note, pledged, in writing, a lot of whisky then in the warehouse of the firm in Clarksville, Tenn. Bryce Stewart died, testate, January 13, 1894. In his will he named J. L. Glenn and F. P. Gracey as his executors. Glenn declined the trust. Gracey qualified, and there