room; or the injury might leave him able to travel around as usual, but mentally unable to give prescriptions. In neither instance would a court be justified in declaring, as a matter of law, that he was not wholly disabled to perform the calling of a physician in the sense of the contract. We therefore hold the contract to mean, not that the asstred was rendered absolutely and literally able to perform any part of his occupation, but that he was disabled from performing substantially the occupation stated in the polley, Young v. Ins. Co., 80 Me. 244, 13 Atl. 996; Wolcott v. Ins. Co., 55 Hun, 98, 8 N. Y. Supp. 263; Hohn v. Ins. Co., 115 Mich. 79, 72 N. W. 1105; Turner v. Ins. Co., 112 Mich. 425,70 N. W. 898, 38 L. R. A. 529, 67 Am. St. Rep. 428. In the latter case the assured's occupation was that of a real estate agent. His injury was a dislocation of the shoulder, which did not prevent him going to his office every day. Yet the court held that it should not be said, as a matter of law, that he was not wholly disabled within the meaning of the policy. These cases are supported by text-writers. 4 Joyce on Ins. § 3031. But stress is laid by defendant's able counsel upon a part of the clause above set out, which itself assumes to define what is meant by "wholly disabled," wherein it is said that the assured must be "totally" unable to perform "any part" of his duties. We do not Consider that such provision has any material ontrol over the other portion of the clause. When parties enter into a contract, it must be assumed that they intended that which in certain events or contingencies would mea something and have some effective force. And so it has been held that if a promissory zote reads that A. promises not to pay B. $100, the word "not" will be disregarded, since the parties must have meant something by the execution of the note. Story on Promsory Notes, § 12; 1 Parsons, Notes and Bills, 26. The occupation of a merchant calls for both mental and physical exertion. "wholly disabled" means that he shall, literally, be totally unable to perform any part of his business, then mental capacity exerdised in merely directing, in a single instance, & matter the most trivial-as, for instance, to sweep the floor-or the physical effort of doing it himself, would bar a recovery on the policy. Total mental disability means that one must have his mental faculties enrely suspended, and total physical disability means the loss of power to move. It cannot be that the parties intended that before an Issured could recover on the policy he should le the full period of his injury in a state of

If

To interpret the clause in its conTactual sense, as defendant seeks to have us da, would render the contract utterly useless an assured, and would be nothing short, actically speaking, of collecting a premium thout rendering a consideration. We therefore find ourselves driven back to the Position taken by the authorities on the con

struction of the first part of the clause, viz., that the disability meant is a disability as to the performance of any substantial part of the business.

He saw the He stopped Seeing the

The policy provided that if the assured was injured "while actually riding as a passenger on a public conveyance propelled by steam, electricity, or cable," he should recover twice the amount specified in the policy. Defendant denies that plaintiff was a passenger. The question was left to the jury, and the finding was in plaintiff's favor. Beyond doubt, plaintiff was on his way home, which was in another part of the city, and was intending to get there by taking a car when he arrived at the proper street. car standing at the proper place. to buy a newspaper of a boy. car about to start, he walked rapidly-or, perhaps, ran-and got on the platform just as it was starting. If it had started before he got on, it had not moved more than one or two feet. He says that he got upon the car and rode across the street, to where there was a sharp up-grade, a distance of between 50 and 100 feet; that at such point the car gave a sudden jerk, which threw him to the ground. At one point in his testimony he stated that possibly the unsteadiness of other passengers on the platform may have thrown him off. The whole of his statement indicates that he was not standing firmly upon the car with both feet, but was in a position to have safely ridden but for the sudden lurching of the car. It is common knowledge that what are known as "cable cars" carry passengers in great numbers in a much less secure way than do cars propelled by steam. We are satisfied the court rightly refused to declare, as a matter of law, that plaintiff was not a passenger. On this subject, see Barth v. Ry. Co., 142 Mo. 546, 44 S. W. 778; Smith v. Ry. Co., 32 Minn. 1, 18 N. W. 827, 50 Am. Rep. 550; Holt v. Ry. Co., 87 Mo. App. 203; Ins. Co. v. Muir, 126 Fed. 926, 61 C. C. A. 310.

The policy contained a provision requiring the assured to give notice to defendant within 10 days of the accident. The notice was not given. There was no provision of forfeiture in case notice was not given. There was, however, at another part of the policy, a provision that a claim should not be valid "unless the provisions and conditions of the contract of insurance are complied with by the insured." We do not regard this as an express provision that the policy would be forfeited for want of notice. There should be a clear and an express statement for forfeiture before the courts will enforce it. Dezell v. Ins. Co., 176 Mo. 279-282, 75 S. W. 1102; 4 Joyce on Ins. § 3282.

It is next insisted that the trial court's manner towards defendant's counsel was abrupt and unwarranted, and that it prejudiced the jury against defendant's case. The matter relates to what transpired in relation to a subpoena duces tecum for plaintiff's

books and correspondence generally. There was a large collection, requiring the use of a wagon. The trial court reflected somewhat on counsel for not particularizing those wanted, so that they might have been separated from the mass before the moment of needing them. We have no way of judging of what transpired except from the record, and we cannot say that anything occurred to warrant our interference.

We have examined other points made, but have not discovered anything to justify a reversal, and therefore affirm the judgment. All concur.

ACCORD AND SATISFACTION-DISPUTE AS TO AMOUNT DUE-GOOD FAITH.

Plaintiffs shipped a quantity of eggs to defendant, pursuant to a sale to defendant's agent at an agreed price. Defendant refused to accept all the eggs, contending that the sale related only to eggs shipped from a certain point. Several letters and telegrams were interchanged, in which plaintiffs insisted that the sale included all the eggs, and defendant refused to admit this, and offered to sell the eggs in dispute for plaintiff. This he finally did, and remitted the proceeds by a letter stating that the remittance was in full for the eggs in dispute. Plaintiffs retained the remittance. Held, that there was a bona fide dispute, so that plaintiffs' acceptance of the money constituted an accord and satisfaction.

[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Accord and Satisfaction, §§ 75-82.]

Appeal from Circuit Court, Polk County; Argus Cox, Judge.

Action by D. N. Lightfoot & Son against Edward Hurd & Co. There was verdict for defendant, and from an order granting a new trial he appeals. Reversed.

C. H. Skinker, for appellant. Wm. W. Wood and Mark C. Campbell, for respondents.

BROADDUS, C. J. The plaintiffs are produce dealers, engaged in buying and selling eggs at Humansville, Mo.; defendant, Edward Hurd, is a commission merchant doing business at Chicago, Ill., under the style of Edward Hurd & Co. The evidence was that an agent of defendant, named Smith, who traveled and solicited business for defendant, bought in February, 1902, a quantity of eggs from plaintiff at 27 cents per dozen, or $8.10 per case. Plaintiffs' evidence went to show that this agent bought all the eggs that plaintiffs would ship to defendant on Sunday the following day. With this understanding upon their part, plaintiffs on the following day shipped to defendant at Chicago 231 cases of eggs. It was shown that the greater part of these eggs were bought by plaintiffs and shipped from points

Rehearing denied June 26, 1905.

other than Humansville. When they arrived at Chicago defendant would accept only those shipped from Humansville, and telegraphed plaintiffs to that effect, and also that they would sell the eggs on plaintiffs' account. But plaintiffs notified defendant that the eggs belonged to him, not to them. On February 24th defendant wrote plaintiffs as follows: "Gentlemen: Monday morning we received 231 cases of eggs from you. Thirty-six cases of these eggs were shipped from Humansville, as per your notification to us of the 22d., and the balance from different towns in your locality. We received a letter from our Mr. Smith stating he had bought what eggs you would get in at Humansville Saturday, February 20th., and understood from you that it would be in the neighborhood of 15 or 20 cases. The ship ment we received from you caused us immediately to wire Mr. Smith to come in, as you stated our Mr. Smith had bought the 231 cases, and as he stated he only bought what eggs you had in Humansville we thought it best to have him here on the ground to find out exactly how the purchase was made, and it was made in this sense: that he would take what eggs you received at Humansville, and that it would be from 15 to 20 cases at $8.10 per case, and he further states that you called him up on the 'phone at the depot and told him that you had another load coming and asked him if he wanted it and he said 'no."'" The remainder of the letter refers to his previous notice that he would sell the eggs on plaintiffs' credit, and to express charges. The plaintiffs persisted that defendant's agent had bought all the eggs shipped. On February 25th defendant again wrote to plaintiffs as follows: "Gentlemen: We wired you last night, 'Will not accept the eggs; wire immediate disposition.' We received your wire this morning stating that the eggs were ours and that you had nothing to do with them. In reply we wired you, 'Will sell eggs your account.' We hereby confirm said telegram and hope that the controversy will now be settled. We mailed you check last evening for the 36 cases that were shipped from Humansville." On March 1st defendant wrote plaintiffs the following: "Gentle men: According to the terms of our telegrams to you of the 24th and 25th ult., we have sold all the eggs shipped by you, excepting those from Humansville, for your account, and after deducting the usual charges, herewith enclose our check for $1332.70 as the net proceeds in full for the same. The enclosed account of sales shows prices received. Trusting this is satisfactory," etc. The plaintiffs received the check, gave defendant credit on their books, and brought suit against defendant for the difference be tween the price of the eggs at $8.10 per case and the amount of the check. At the close of plaintiffs' case the court, at the instance of defendant, instructed the jury to

find for defendant. The jury returned a verdict accordingly. The plaintiffs in due time filed a motion to set aside the verdict and grant them a new trial. The court sustained the motion on the ground of error in instructing the jury to find for defendant. From the action of the court in setting aside the verdict and granting plaintiffs a new trial, defendant appealed.

One question only is raised by the parties, and that is, do the undisputed facts show that plaintiffs were not entitled to recover? If so, the action of the court in setting aside the verdict and granting a new trial was error. The position of the plaintiffs is that, when the demand is fixed or liquidated, and the dispute as to the sum due is not in good faith, the rule of tender and acceptance for a less sum does not discharge the debt. And it was so held in School Board v. Hull, 72 Mo. App. 403, and Goodson v. Association, 91 Mo. App. 339. But we do not think the rule has any application to this case. Here there was a dispute as to the amount of plaintiffs' demand. And there was nothing tending to show in the least degree that defendant's denial of the contract that his agent purchased eggs to be shipped from points other than Humansville was not in good faith. Immediately upon receipt of the eggs be informed plaintiffs of his understanding of the contract, and that he would only receive and pay for the eggs shipped from said point, and that he held the others subject to his order. His agent, Smith, deried that he bought eggs shipped from other points, and affirmed that the extent of his purchases was about 15 cases. However, defendant finally consented to accept and pay for all the eggs shipped from Humansville. As to the residue, he notified plaintas that he would sell them on their account. He did so, and sent the proceeds, less charges, and plaintiffs accepted the same, and credited the amount of his account. The rule applicable is found in Towslee v. Healey, 39 Vt. 522, and was quoted by Judge Elison in St. Joseph School Board v. Hull, 72 Mo. App. supra, viz.: "That when a sum of money is tendered or offered in satisfaction of a claim, and the tender or offer is accompanied with such acts and declarations as amount to a condition that if the money is accepted it is accepted in satisfaction, and such that the party to whom it is offered is bound to understand therefrom that be takes it he takes it subject to such condition, an acceptance under such an offer constitutes an accord and satisfaction, notwithstanding the party, when he took the money, claimed more, or declared that he did not take it in full." "If one accepts a payment upon condition that it is to be received in full satisfaction of his claim, his entire claim has been satisfied, even though be filed a written protest, at the time of accepting the amount paid, notifying the debtor that he would insist on the balance 88 S.W.-9

claimed." Coal Co. v. St. Louis, 145 Mo. 651, 47 S. W. 563. The general rule is that the tender and acceptance of less than the amount of a disputed claim in settlement of the entire claim is binding, and operates as a satisfaction of the same. Maack v. Schneider, 51 Mo. App. 92; Deutman v. Kilpatrick, 46 Mo. App. 624. The court was right in instructing the jury under the facts to find for defendant. But it was error to set aside the finding of the jury and grant a new trial.

Reversed, and remanded with directions to restore the verdict of the jury and enter judgment for defendant. All concur.

In re REDMOND et al.
REDMOND v. REDMOND.

(St. Louis Court of Appeals. Missouri. June 19, 1905.)

HUSBAND AND WIFE-SEPARATION-CUSTODY OF CHILDREN-RIGHTS OF PARENT.

Petitioner and his wife, the parents of five living children, separated; the wife taking the children to the home of her mother. She then placed three in Catholic institutions for education, and retained the two younger with her. The wife and her mother were women of culture and refinement, and the latter was a woman of means, who could and did furnish such children with a comfortable home, while the father, though respectable and competent to have their custody, would have had to employ some one to care for them. Held, that the present custody of the children would not be interfered with or given to petitioner, but that he was entitled to visit them at reasonable hours, and to correspond with such of them as were away.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Parent and Child, §§ 16-22.]

Habeas corpus, on petition of John H. Redmond against Camilla C. Redmond, to recover the custody of John H. Redmond, Jr., and others. Writ dissolved.

Ragsdale Bros., for petitioner. John Schmook, for respondent.

BLAND, P. J. The petitioner and respondent were married in the city of St. Louis, November 25, 1891. They continued to live together as husband and wife until February, 1901, when they separated. There were five children born of the marriage: John Henry, age 13 years; Mary Naomi, age 11 years; Lewis Arthur, age 9 years; Camilla Ann, age 7 years; and Charles Francis, age 5 years— all living and all in the custody of the mother. The petition alleges that the three older children have been placed by their mother in close confinement in schools away from Springfield, Mo., where both petitioner and respondent reside, and that petitioner is denied the privilege of visiting or seeing them, and that the two younger children are kept closely confined at the home of Mrs. Herr, the mother of respondent, with whom she and the children make their home, and that petitioner is not permitted to see or communicate with either of them. It is further

alleged that respondent has taught all the children to disrespect the petitioner, their father, and instructed them to run from him when he undertakes to approach them. The prayer of the petition is that the children be discharged from their alleged unlawful confinement.

The return of the respondent to the writ of habeas corpus issued by us alleges that John Henry, through the efforts of respondent, in the spring of 1902, entered Conception College, at Conception, Mo., for a term of five years on a free scholarship, which includes tuition, board, and washing, and that his other expenses at school are being defrayed by the respondent; that Mary Naomi, through the influence and efforts of respondent, is in Sacred Heart Convent, at St. Charles, Mo., under a free scholarship, for 10 years, and that her other expenses are being paid by respondent; that in the year 1903 Camilla Ann entered the same convent, and is being there educated at the expense of respondent; that the two younger children are with the respondent at her home in Springfield, Mo.the older one in school, the younger being too young to send to school. The return denied the other allegations of the petition, and alleged that respondent was compelled to separate from the petitioner on account of his intemperance, his profligacy, and his cruel and barbarous treatment of respondent and their children, and on account of his failure to provide them with the common necessities of life; alleges that petitioner is an unfit person to have the care, custody, training, and education of the children, and has no proper home to which to take them; alleges that he has tried to inculcate in the minds of the older children the idea that their mother is a faithless, bad woman; that he has dogged the tracks of respondent since the separation, and upon divers occasions has openly insulted her on the streets of Springfield, in the presence of other persons; that he has refused to contribute to the maintenance of any of said children, or to pay any of the expenses of their sickness, and has refused to contribute anything to their support. The petitioner is also charged with immoral conduct and with being a habitual drunkard.

A commissioner was appointed by us to take testimony. Seven hundred pages of typewritten testimony has been taken and filed in the cause. This testimony we have carefully perused; also the many letters and telegrams filed as exhibits. The testimony is too voluminous to be even summarized within the scope of an opinion of reasonable length. It shows that petitioner and respondent are members of the same church (Catholic); that both sustain good characters among their neighbors and acquaintances; that petitioner is not a drunkard nor an immoral man; that he has love for his wife and children; that he has been an unsuccessful man in business, has totally failed in all of his business ventures, and tends to show that, but for aid

furnished the family while living together by Mrs. Herr, respondent's mother, the family would have been in very straitened circumstances, and possibly without the absolute necessities of life. The testimony also shows that petitioner is uncouth in his manner and is lacking in refinement. On the other hand, the evidence shows that respondent is a lady of culture and refinement, that she is a pure, good woman, a devoted and sensible mother, and that she is industrious, energetic, and intelligent. Just why she separated from her husband is not made altogether clear, yet we think the cause or causes are discernible between the lines of her testimony, and while we do not think there was an adequate cause for the separation, there was much provocation for a woman of her type to separate from Mr. Redmond; but we are not called upon to adjudicate this feature of this unfortunate affair. There is much evidence to show that without the shadow of cause petitioner since the separation has contracted the disease of jealousy, and spurred on by this morbid sentiment has on several occasions insulted his wife and treated her with gross indignity. The evidence shows that he has not contributed as much as he might and should have contributed for the support of his children, and that he has contributed nothing whatever toward the support of his wife since the separation; but respondent is in part to blame for this neglect, for she has offered petitioner such indignities as would stir up resentment in the mind of any man of spirit, and there is much evidence showing that, while she has not deliberately and purposely taught her children to disrespect their father, her training of them has been such as to alienate their affections from him, and she has, according to all the evidence, at almost all times and under all circumstances denied the petitioner the privilege of seeing, conversing with, or even corresponding through the mails with his children. According to her evidence this conduct was induced through fear that petitioner would abduct the children, as the evidence shows he had threatened to do, and for the further reason that he would not contribute to their support, though often asked to do so by his wife. We think the evidence shows that want of confidence, ungrounded fears, and unreasonable suspicion of each other has been the fruitful source of most of the difficulties and trouble that has arisen between the parties since the separation, and it is a great pity that two good people, as the evidence shows both to be, after plighting their faith to each other in wedlock and after bringing into the world five children, should stray so far apart and lose their confidence in each other without any real or substantial cause. More is the pity when the children are brought into the controversy. It is with the children we have to deal in this proceeding. The legal rights, the love and jealousy, the wishes, and even

the welfare of petitioner and respondent must te subordinated to the interest of the children; for the welfare of the latter should be Le guiding star in reaching a conclusion in this proceeding.

It is not difficult, under the evidence, to arrive at a conclusion in respect to the disposition that should be made of the children, Lor to decide to which of the parties their custody should be awarded. The respondent is an only child of Mrs. Herr, who has considerable means, and has a good, comfortble home for herself and children with her Zother. As alleged in her return to the writ, the three older children are in school, Ender the arrangements as stated in the return, and the two younger are with her at her home in Springfield. During the four years of her separation, she has proved, not only her ability and willingness to properly rear, train, and educate her children, but also that she possesses in an eminent degree superior qualities as a mother in the rearing of children. The evidence shows that few mothers, furnished with ample fortunes, have done so well in bringing up their children as has this good woman by her energy, industry, and superior intelligence. The evidence also shows that Mrs. Herr, the grandmother, is devoted to these children. They are undoubtedly in good hands. We do not think the evidence shows that Mr. Redmond is a drunkard, an immoral man, or that he is an unfit person to have the custody of his children; but it does show that he is not prepared to take care of them. He has a house, but no housekeeper. He testified that, if their custody should be awarded to him, he would have to hire a housekeeper to look after their wants. We can never consent to the substitution of a hireling to look after these eidren in the place of their mother, and we do not think that Mr. Redmond really desires that this should be done. What he especially asks, and what he is clearly entided to, is that he be recognized as the father of his children by those in whose custody they are, and that he be granted the privilege of seeing them and the opportunity of gratifying his affection for them, and of cultirating theirs for him. It would be cruel and inbuman to deny him this right. But be ought to contribute something more than be has heretofore contributed to their support and education. By doing so, he will in art discharge his legal and moral obligaon to support his children, and the more dear both his wife and children to him. But we do not make it a condition that to see his children he shall contribute to their *port. His right to see them is a natural "ght that he has not forfeited.

Our conclusion is that respondent retain the custody and control of the five children; that she have the direction and supervision their education without let or interference the part of petitioner, but that he shall at ail proper times, as often as once a week, if

respondent will give her consent, have the privilege of visiting the children when at respondent's home; and that his intercourse with the children upon such visits shall be free and not unnecessarily interrupted, and that such visits may be continued at any one time for at least two hours. If the respondent will not give her consent that petitioner may visit his children at her home, then it is ordered that she, at least once a week, if petitioner shall require it, permit the children, when at home in Springfield, to be taken by petitioner to his home in the same city, and that they may visit him for a period not exceeding three hours. We also think the petitioner should have the privilege of writing to and receiving letters from his children when away from home at college, and that respondent should give instructions to the superintendent of such schools to permit the children to correspond with their father and to see him at seasonable hours when he calls at said schools for the purpose of paying them a visit. The costs of this proceeding are adjudged against the petitioner.

HASBROUCK et al. v. RICH, Sheriff.* (Kansas City Court of Appeals. Missouri. May 22, 1905.)

1. FRAUDULENT CONVEYANCE-MORTGAGES— PROVISIONS FOR SALE.

The provision in a deed of trust of a mining company's property, given by it to secure its bonds, that any real property which cannot be advantageously used, or the sale of which shall become necessary, shall on request of the company be sold for not less than the value to be appraised by the trustees, the proceeds to be turned over to and held by them till property of equal value be purchased and held as part of the mortgaged property, does not render the mortgage void as against creditors.

2. SAME-CHATTELS.

A deed of trust of a mining company's property, authorizing the company to dispose of any machinery covered thereby which cannot be advantageously used, it to replace it by other machinery of at least equal value, is not within Rev. St. 1899, § 3397, avoiding deeds conveying chattels to the use of the grantor. 3. SAME CONDITION OF FORECLOSURE.

A deed of trust is not made void by a provision that foreclosure shall not be had till a certain portion of the holders of the bonds secured so request.

4. ESTOPPEL-TO DENY INCORPORATION COMPANY.

OF

Persons whose claims arise out of transactions with a company as a corporation are estopped to assert the invalidity of a deed of trust given by it to others, on the ground that it was not properly organized as a corporation.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Howard Hasbrouck and others against Albert Rich, sheriff. Judgment for plaintiffs. Defendant appeals. Affirmed.

*Rehearing denied June 26, 1905.