when the deed was executed, and accordingly claimed that the contract, as so modified, required them to account to the plaintiff for $20 per acre, less $500 commission, and c'aimed that whatever they received in excess of that amount belonged to them, and consequently they were under no obligation to notify or inform the plaintiff that the sale was for $25 per acre. Each party insists that the other was guilty of making many condicting, contradictory, and false statements in their respective testimony, and the case was argued in this court as if such matters were open to review here. It is unDecessary to reproduce in more detail the testimony adduced upon the trial. What is berein before said is sufficient to show the theories upon which the parties tried the ease in the court below, and to indicate that there was substantial testimony to support the theory of each party. On behalf of the plaintiff the court gave 11 instructions, and on behalf of the defendants the court gave also 11 instructions. The defendants also asked 10 other instructions, which the court refused. The instructions given and refused took a wide range, and, so far as is necessary, those specifically complained of will be bereafter referred to. At the close of the plaintiff's case, and again at the close of the bole case, the defendants demurred to the evidence. The court overruled the demurrers, and the defendants excepted.

1. The first error assigned is that the petition stated no cause of action, in this: that it does not allege that the defendants were granted authority to collect the purchase money. This is an action for money bad and received, and not an action upon a special contract. The gravamen of the petition is that the defendants received $4,907.10 for the use of the plaintiff, and retained the same, and refused to pay it to the plaintiff, or to account to him therefor. "The law is that when a person who has received money for the use of another neglects or refuses to pay it over to his cestui que trust the person entitled thereto may maintain an action against him for money had and received. It is of no importance how the money came into his hands if the plaintiff is legally entitled thereto. The beneficiaries are legally entitled to recover it of the receiver by an action for money had and received." Clark v. Bank, 57 Mo. App., loc. cit. 285. One who receives money for the use of another, even without any prior authority to so receive it, is liable to the person to whose use it was received; and it is no defense that the receiver had no previous authority.

2. The second contention of the defendants is that the petition alleges a written contract, whereas the proof showed a verbal contract. If there was any merit in this contention, the defendants have not put themselves in a position to insist upon it in this court. They fled no affidavit such as is required under

the statute (Rev. St. 1899, § 655), and the point is not, therefore, open for review in this court. Fisher Real Estate Co. v. Staed Realty Co., 159 Mo. 562, 62 S. W. 443.

3. The defendants' next contention is that the trial court erred in overruling the demurrers to the evidence. There was substantial evidence adduced by the plaintiff tending to establish the allegations of the petition and to support the plaintiff's theory of the case. This therefore is not a case of total failure of proof, such as is defined in Chitty v. Railroad, 148 Mo. 64, 49 S. W. 868. There was no error in the ruling of the court in this regard.

4. The fourth error assigned is the action of the trial court in permitting the plaintiff to cross-examine the defendants as to the value of the land and as to the meaning of the letters written by the defendants to the plaintiff. The trial court admitted the evidence as to the value of the land as bearing upon the wrongful conduct of the defendant in representing to the plaintiff that they could not sell the land for more than $20 an acre, and thereby inducing him to agree to a modification to that extent of the contract. No such issue was properly in the case, but at the request of the defendants the court instructed the jury that, if they believed that the plaintiff consented to a modification of the contract as claimed by the defendants, their verdict should be for the defendants. Whatever harm was done to the defendants by the admission of the evidence complained of was neutralized by the instruction asked by the defendants. As to the cross-examination of the defendants concerning the letters written by them to the plaintiff, it may also be properly said that there was no such issue in the case, but it is inconceivable how the defendants were prejudiced thereby. On the contrary, they were thus afforded an opportunity of explaining the meaning of their letters. The plaintiff would have had a right to object to the defendants adding anything to their letters explanatory thereof, but how the defendants could be injuriously affected by the plaintiff permitting them or requiring them to explain them does not manifest itself.

5. The next error assigned is that no demand, before the action was instituted, was shown. Section 1575, Rev. St. 1899, provides that: "It shall not hereafter be available to a party as an objection that no demand for the subject matter of the suit was made prior to its institution, unless it is expressly set up by way of defense in the answer or replication, and is also accompanied with a tender of the amount that is due; in which case, if the plaintiff will further prosecute his suit, and shall not recover a greater sum than is tendered, he shall pay all costs. This provision shall be applicable as well to actions for property as for money. When property is tendered, the damages for its

detention, if any, shall also be tendered." The defendants in this case set up no such special defense, and make no tender, but, on the contrary, filed a general denial.

6. Plaintiff's first instruction is claimed to be erroneous on the ground that it directed the jury, in determining the weight and credibility to be given to the testimony of any witness, they should take in consideration the character of the witness, and because there was no evidence adduced in the case affecting the character or reputation of any witness who testified in the case. There is a vast difference between the character of a witness and the reputation of a witness. Webster's International Dictionary defines "character" as follows: "3. The peculiar quality or sum of qualities by which a person or thing is distinguished from others; the stamp impressed by nature, education and habit; that which a person or thing really is; nature; disposition. 4. Strength of mind; resolution; independence; individuality; as, he has a great deal of character. 5. Moral quality; the principles and motives that control the life; as, a man of character; his character saves him from suspicion. 6. Quality, position, rank or capacity; quality of conduct with respect to a certain office or duty; as, in the miserable character of a slave; in his character as a magistrate; her character as a daughter." The same author defines "reputation" as follows: "1. The estimation in which one is held; character in public opinion; the character attributed to a person, thing or action; repute. (Law) The character imputed to a person in the community in which he lives. It is admissible evidence when he puts his character in issue, or when such reputation is otherwise part of the issue of a case." "Synonyms given are "credit; repute; regard; estimation; esteem; honor; fame." Speaking of character and reputation, the same author, quoting from Abbot, says: would be well if character and reputation were used distinctly. In truth, character is what a person is; reputation is what he is supposed to be. Character is in himself; reputation is in the minds of others. Character is injured by temptation and by wrongdoing; reputation by slander and libels. Character endures throughout defamation in every form, but perishes when there is a voluntary transgression; reputation may last through numerous transgressions, but be destroyed by a single, and even an unfounded, accusation or aspersion." Instructions embodying the point here involved were given in the following cases: Gee, 85 Mo. 647; State v. Brooks, 92 Mo., loc. cit. 557, 5 S. W. 257, 330; State v. Herrod, 102 Mo.. loc. cit. 598, 15 S. W. 373; State v. Hilsabeck, 132 Mo., loc. cit. 358, 34 S. W. 38; and State v. Hudspeth, 159 Mo., loc. cit. 200, 60 S. W. 136. In none of these cases, however, was there any point made as to the jury taking into consideration the character of the witnesses, nor was the question

"It

State v.

directly discussed, but the correctness of the instruction in this regard was tacitly conceded by counsel, and passed unchallenged by the court. In view of the contentions of each party hereto with respect to the testimony of the other party, it was proper for the court to give the instruction complained of. The jury was a jury of the vicinage, and had the parties before them, and could see the witnesses, and also heard, from the accounts of the witnesses concerning themselves, of what manner of men the witnesses were, could observe their individuality, intellectuality, and conduct, could read the character of the witnesses from their appearance, bearing, and manner. There was no error in the instruction.

7. The plaintiff's second instruction is charged to be erroneous. This instruction told the jury that the plaintiff was not bound by the insertion of July 15, 1898, unless he ordered, directed, or consented thereto; and that, if such modification of the original contract was made by the defendants without the plaintiff's consent, it rendered the whole contract void. In Kelly v. Thuey, 143 Mo., loc. cit. 434, 45 S. W. 302, this court said: "It is the firmly rooted doctrine of this court, and has been ever since the ruling made in Haskell v. Champion, 30 Mo. 136, that it is not permitted to a payee or obligee to make a change in a paper which he holds, and then assert, when caught, that he meant no harm by it, and that it is immaterial. Hitherto we have tolerated no alteration in a contract; and we have always regarded, and still regard, any change on the face of the paper as a nullifying alteration. By this holding we intend to make the payees or obligees of money-bearing or title-bearing obligations honest, whether that inclination accords in their natural inclinations or not." There is no room for controversy that the insertion of July 15, 1898, in the original contract, was a material alteration of the contract. That authorized the sale of the land at a price different from that fixed in the original contract, and materially increased the amount of commission and profits the defendants might make out of the sale of the land. The positions and theories of the parties in this case illumine the radical differences between the original contract and the altered one. Those differences were the very matters in issue before the jury. The instruction complained of properly told the jury that, unless the plaintiff agreed or consented to the alteration, that act of alteration nullified the whole contract. The converse of that instruction is contained in the defendants' third, fourth, sixth, eighth, ninth, and eleventh instructions, all of which were given for the defendants by the court.

8. The plaintiff's third instruction is assigned as error. That instruction proceeds on the same lines as the second instruction, above discussed, and is especially complained of because it tells the jury that the plain

tia is not bound by the alteration of July 15, 1898, unless he was present in the office of the defendants at the time the alteration was made; and it is argued very properly hat the real question is whether he consented to the alteration, and not whether he did so in the office of the defendants or elsewhere. Inasmuch as the defendants' whole contention is that the agreement to alter was entered into at the defendants' office, and there is no evidence tending to prove that such alteration was proposed, made, or agreed to at any other place, it is difficult to see bow the jury could have been misled by miting the agreement or consent of the plaintiff to the alteration to matters that occurred in the defendants' office. The criticism of the instruction does not commend itself to the impartial mind, nor is it tenable in the circumstances of this case.

2. Plaintiff's fifth instruction is complained of. The gist of that instruction is that, though the plaintiff gave the defendants authority to sell the land at $20 an acre, still such authority did not excuse the defendants from selling for the best price obtainable and accounting to the plaintiff for the full purchase price, less such compensation as may have been agreed upon. The critieism of this instruction is that it makes the agent exceed the instructions of his principal, and makes him liable if he does not do so. The criticism is not tenable. The price ixed for the sale of the land was the minimum price at which the plaintiff was willing to sell. The obligation of the defendants under their contract necessarily was that they would sell at the best price obtainable; and, whatever may have been the true arrangement, whether original or amended, between the parties, the plaintiff was entitled to know the truth concerning the sale, and, if the plaintiff's version is true-as the jury has found that it was-the plaintiff was entitled to receive the full amount for which the land sold, less the commission agreed to be paid to the defendants.

10. The plaintiff's seventh instruction is assigned as error. That instruction told the jury that, even if they found that the plaintiff signed the original contract, yet if they believed that he never read it, and that in reading it to him the defendants fraudulently deceived the plaintiff as to its true contents by misstating the price as to which the contract recited that the land should be sold, then the contract is not binding on the plaintiff. The objection urged to the instruction is that this is not an action for the cancellation of a contract on the ground that it was procured by fraud, and that, even if it had been procured by fraud, a court of law has no power to set it aside.. It is true this is not an action to cancel the contract, nor is it an action on the contract. The contract was only a portion of the evidence in the case, and it was proper for the court to tell the jury whether or not it was binding up

on the plaintiff. The defendants rely upon the contract, as they claim it had been amended, as the corner stone of their defense. The plaintiff's position was that the contract was not binding upon him, because he had been fraudulently induced to enter into it by the act of the defendants in not correctly reading it to him, and also that the original contract had been nullified by the unauthorized alteration thereof.

11. The plaintiff's eighth instruction is claimed to be erroneous on the ground that there is no evidence to support it; that is, that there is no testimony in the case fixing the defendants' commission at 5 per cent. on the first $1,000 and 21/2 per cent. on the remainder of the purchase price. This must be a misapprehension of counsel, for the original contract specified that the commission of the defendants should be the sums named. This was some evidence bearing upon that question.

12. The plaintiff's eleventh instruction is assigned as error. That instruction tells the jury that it is admitted that the defendants received from Scroggins $24,320, and that the plaintiff admits that the defendants are entitled to retain out of that sum a commission of 5 per cent. on the first $1,000 and 21/2 per cent. on the remainder; and that, if the jury should find for the plaintiff, they should deduct the commission from the amount received, and should also deduct $19,019.40, which the plaintiff admitted he had received from the defendants on account of the sale, and the remainder would be the amount due the plaintiff, unless the jury believed that the plaintiff had agreed to give the defendants all they could sell the place for in excess of $20 per acre. The criticism of this instruction is that there was no admission, either in the pleadings or evidence, that defendants had received $24,320. The petition charges that the defendants had received $24,645.50-that is, $25 an acre for the land, and the evidence shows that the land was sold for $25 an acre, and that defendants received $15,000 on the 14th of October, 1898, and that subsequently the purchaser turned over to the plaintiff a check or draft for $9,320, and that the plaintiff turned the same over to the defendants, and that the defendants gave the plaintiff their check for said amount. $15,000 plus $9,320 aggregates $24,320, which is the sum stated in the instruction complained of. The discrepancy between that sum and $24,645.50, the true sum due, is nowhere explained in the evidence; but the defendants were not prejudiced thereby. The fact that Scroggins turned over to the plaintiff the check for $9,320, and that the plaintiff turned the same over to the defendants, and they gave him their check therefor, does not, as the defendants contend, render the instruction erroneous because of the statement therein contained that the defendants received from Scroggins $24,320. The in

struction fairly presented the matter to the jury.

13. In his final argument to the jury plaintiff's counsel commented upon the fact that the original contract, which was before the jury, appeared to be in five different handwritings, and called the jury's attention specifically to the several parts that appeared to have been written by different persons. Defendants' counsel objected to the remarks. The court overruled the objection, and the defendants excepted, and now assign the same as error. It is urged that, as the attention of the witnesses was not called specifically to the alleged difference in handwritings, and as there was no evidence that the contract had been changed in any respect except as to the alteration of July 15, 1898, the remarks of counsel were not a legitimate argument. The contract was itself in evidence, and was therefore a proper subject for comment or debate with respect to any matter that appeared on the face thereof. Even if the attention of the witnesses had been called to the difference in handwritings contained therein, and even if the witnesses had said that it was written by the same person, or if expert witnesses had so testified, it would still have been the province and duty of the jury to decide the fact as to whether the different portions of the contract had been written by different persons or not. The contentions and theories of the respective parties were distinctly and clearly defined before the jury, and the argument of counsel was a legitimate argument upon the whole facts before the jury.

14. The refusal of the court to give the defendants' first instruction is assigned as error. That instruction told the jury that if they believed that the plaintiff had authorized the defendants to sell his farm for $23 per acre, and to give defendants 5 per cent. on the first $1,000 and 21⁄2 per cent. on the remaining purchase price, and all over $23 per acre the defendants might sell the plaintiff's farm for, and afterwards authorized the defendants to sell the farm for $20 an acre, then the plaintiff could not recover. There was no evidence to support such a theory, nor was the case tried on such a theory by either of the parties hereto, and therefore the instruction was properly refused.

15. The refusal of the court to give defendants' instructions Nos. 2, 5, 6, 7, 8, 9, and 10 is assigned as error. It is unnecessary to reproduce, even in substance, the instructions referred to, or to more specifically refer to them, to determine the action of the court in reference thereto, than to say that they either stated propositions which were fully covered by the 11 instructions given for the defendants, or else they were predicated upon hypotheses which had no foundation in either the facts or the theories upon which the defendants tried their case.

16. Lastly, it is contended by the defendants that the preponderance of the evi

dence in their favor is so strong as to show that the verdict is the result of passion, prejudice, and partiality of the jury. It is not the practice of this court to weigh the evidence in law cases. If there is substantial evidence to support the verdict, this court does not interfere therewith. James v. Mutual Life Ins. Co., 148 Mo. 1, 49 S. W. 978. Where a verdict shows on its face that it is the result of passion, prejudice, or misconduct of the jury, this court has set aside verdicts; but such cases are rare. The mere fact that the preponderance of the evidence may, in the opinion of this court, be against the verdict, is no foundation for the charge that the verdict is the result of passion, prejudice, or misconduct. This court can only read the evidence that is preserved in the record or abstract of the record, and what might appear from that to be a preponderance of the evidence might be a totally erroneous impression, for the preponderance of the evidence does not mean the greater number of witnesses. Many other considerations enter into the calculation as to the preponderance of evidence. The character of the witnesses, their manner and deportment on the stand, their appearance, their character, which nature has stamped upon their countenances, are all matters which enter into the calculation as to the preponderance of the evidence, and are matters which the jury and the trial court have before them and which this court does not see. The testimony in this case is of that character usually found in cases and controversies of the nature of this case, and the manifest bitterness of the parties exhibits itself in every line of the record. This case is a striking illustration of the wisdom of the rule or practice of this court that leaves the determination of controverted questions of fact to the jury.

With the findings of fact in this case in favor of the plaintiff, and failing to find any prejudicial error in the law of the case as applied by the trial court, it follows that the judgment herein must be affirmed. It is so ordered. All concur.

trinsic facts should be alleged by way of indrcement, and the libelous charge should be folwed by an innuendo applying the words to the matter pleaded.

[Ed. Note. For cases in point, see vol. 32, Cent. Dig. Libel and Slander, §§ 187-197, 205– 28]

4. SAME-INNUENDO ENLARGEMENT.

Where plaintiff in a libel suit alleged that defendant in certain mercantile reports published that plaintiff had sold his stock in trade for $1, "meaning to charge that plaintiff had transferred his business for a nominal consideration." it was an enlargement of the meaning as set forth in the innuendo to claim that the words signiñed dishonesty in a business way. 5. SAME-DEFENSES-TRUTH.

If the publication that defendant had sold his stock in trade for a consideration of $1 should be construed as imputing insolvency, it was not libelous, if defendant was insolvent at the time of the transfer, under Rev. St. 1899, making the truth a defense in actions

for libel.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Libel and Slander, § 152.]

Appeal from St. Louis Circuit Court; Franklin Ferris, Judge.

Action by Henry Ukman against the Daily Record Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Bass & Brock, for appellant. W. B. Homer, for respondent.

LAMM, J. Suit for damages for an alleged libelous publication. At the close of plaintiff's case the court gave an instruction in the nature of a demurrer to the evidence, whereupon plaintiff took a nonsuit with leave. After an unlucky motion to set the nonsuit aside, plaintiff, on proper steps, perfected an appeal and brought his case here. The paper issues may be formulated thus: The petition alleges that plaintiff was engaged in selling cigars in St. Louis under the name of A. G. Ukman Cigar Company, and in the conduct of his business had established and maintained an excellent credit with the business world at home and abroad; that defendant is a domestic corporation doing business in the city of St. Louis, printing, publishing, and circulating among business people generally, including the business men having dealings with plaintiff, a daily paper known as the St. Louis Daily Record, and in an issue of that paper of date the 3d of February, 1902, "did utter, publish, and circulate, of and concerning the plaintiff, the following false, malicious, and libelous words: 'Bills of Sale.-A. G. Ukman, 612 Chestnut, to Miss A. Handschiegel, cigar outft. $1.00. Meaning by said words to charge the plaintiff with having transferred his said business and stock of cigars for the nominal consideration of $1 to the person aforesaid." It was further alleged that defendant distributed said paper containing said libel among the business people aforesaid, and they believed the libel to be true, and thereby plaintiff had been injured in his business, credit, and reputation, and people from whom he had bought cigars stopped them in

transit, and persons from whom he had borrowed money or who had given him credit refused to lend him money or give him credit, and persons from whom he wished to buy goods on credit refused to sell him the same, so that, being unable, by reason of defendant's said libel, to pay his creditors the debts he owed, he was compelled on the 21st day of March, 1902, to file a petition in bankruptcy, and was damaged in the premises in the sum of $10,000.

The material averments of the amended answer, borrowed from the summary formulated by appellant, are as follows: "First.

It admitted the defendant to be a corporation, and its chief place of business in St. Louis, state of Missouri, and denied each and every other allegation in plaintiff's petition. Second. It alleged that the defendant published a daily newspaper devoted to the publication of the records of the courts of the city of St. Louis; that said paper also sets forth transfers recorded in the recorder's office in the city of St. Louis; that it is the custom of the recorder of deeds to furnish the defendant memoranda of transfers recorded in said office; that the recorder of deeds will not permit the defendant to take such information from the records, but required the defendant to receive the same from an agent of the recorder of deeds. Said answer further stated: That on the 1st day of February, 1902, the said agent furnished to the defendant a memorandum, under the heading 'Bills of Sale,' in the following language: 'A. G. Ukman, 612 Chestnut street, to Miss A. Handschiegel, cigar outfit, $1.00.' That on the 3d day of February, 1902, the defendant published the same, but did not mean to charge the plaintiff with having transferred his business and stock of cigars for consideration of one dollar, and did not mean to charge that the plaintiff had transferred his business and stock of cigars for any consideration. That as soon as the defendant learned that the consideration stated in the bill of sale was in fact $700, instead of $1, it at once published a correction of said error, under the same heading, with equal prominence, for two successive days. Third. Said answer further alleged that the plaintiff did, by bill of sale dated the 31st day of January, 1902, convey to Miss A. Handschiegel a certain stock of cigars and cigar fixtures, such as counters, showcases, wall cases, etc., located at 612 Chestnut street, city of St. Louis; that said publication was not libelous and did not injure the plaintiff; that the said cigar business of the plaintiff was conducted by him merely for the purpose of enabling him to sell some old fixtures and at a loss; and that at the time of the alleged publication the plaintiff was insolvent and in a failing condition, and that said publication could not and did not injure the plaintiff. Fourth. The answer further stated, by way of mitigation of damages, that the business of the plaintiff was under