exceptions on the ground that the record shows it was filed more than 90 days after the order granting time to file was made, and pon the ground that there is no record showg that said time was extended so as to indade May 31st, the date of filing.

Harris & Norman and A. H. Livingston, for appellant. W. J. Orr, for respondents.

NORTONI, J. (after stating the facts). It bas frequently been decided in this state that, unless the bill of exceptions is filed within the time granted by the court for that purpose, it will not be noticed in the appellate Court State v. Harris, 121 Mo. 445, 26 S. W. 558; Butler County v. Graddy, 152 Mo. 441, 54 S. W. 219; Dorman v. Coon, 119 Mo. 68, 24 S. W. 731; Girdner v. Bryan, 94 Mo. App. 27, 67 S. W. 699; State v. Britt, 117 Mo. 584, 23 S. W. 771; State v. Apperson, 115 Mo. 470, 22 S. W. 375; State v. Scott, 113 Mc. 579, 20 S. W. 1076. It has also been fre

there must be a showing in the record proper, and aliunde the bill of exceptions itself, to the effect that time has been granted to file the bill of exceptions, and it must appear that sch bill was filed within the time limit granted by the court. Pepperdine v. Hymes,

Mo. App. 464; Lucas v. Huff, 92 Mo. App. 29; Jordan v. C. & A. Ry. Co., 92 Mo. App. $1: Williams v. Harris (Mo. App.) 85 S. W. (43; Ricketts v. Hart, 150 Mo. 64, 51 S. W. : St. Charles v. Deemar, 174 Mo. 122, 73 S. W. 469; Western Storage Co. v. Glasner, 150 Mo. 426, 52 S. W. 237; Walser v. Wear, Mo. 652, 31 S. W. 37; State v. Harris, 121 Mo. 445, 26 S. W. 558. All of the authorities bold that the statement contained in the bal of exceptions itself, to the effect that the bis filed in due time, etc., is insufficient; for the reason that the bill cannot be permitted to prove itself. We must, therefore, hold that the recital in the bill of exceptions in this case, to the effect that the time had been extended for its filing, was insufficient to supply the record in that respect. Western StorEze Co. v. Glasner, 150 Mo. 426, 52 S. W. 237; Walser v. Wear, 128 Mo. 652, 31 S. W. 37; St. Charles v. Deemar, 174 Mo. 122, 73 S. W. 4: Ricketts v. Hart, 150 Mo. 64, 51 S. W. ; Lawson v. Mills, 150 Mo. 428, 51 S. W. 78; Williams v. Harris (Mo. App.) 85 S. W. 43: Jordan v. C. & A. Ry. Co., 92 Mo. App. 1: Lucas v. Huff, 92 Mo. App. 369.

This being the adjudicated law on the subwt the bill of exceptions must be stricken from the record; and, as there is no bill before us presenting the evidence and matters

exception had upon the trial, there is nothg to be reviewed by this court other than the record proper. Lucas v. Huff, 92 Mo. App. 39; Pepperdine v. Hymes, 92 Mo. App. 464; Lawson v. Mills, 150 Mo. 428, 51 & W. 678; Walser v. Wear, 128 Mo. 652, 31 W. 37: Butler County v. Graddy, 152 Mo. 441, 54 S. W. 219. There are no assignments

in appellant's brief leveled against the record proper in this case. The only reasons which he urges for reversal of the judgment are matters of exception contained in the bill which has been stricken from the files, and they are no longer before us for observation. It affirmatively appearing on the record that the bill of exceptions in this case was filed out of time and without authority, it should be treated as equivalent to the filing of no bill at all, and thereupon respondent is entitled to an affirmance of the judgment. Jordan v. C. & A. Ry. Co., 92 Mo. App. 81.

The judgment of the trial court is therefore affirmed. All concur.

Where defendant signed a written contract to purchase certain goods, he would be conclusively presumed to know the contents of the writing, and could not show that he did not read it and agree to all its terms.

3. SAME-EVIDENCE-DUPLICATES.

Where defendant signed an original contract for the purchase of goods, the fact that a purported duplicate of the contract offered in evidence was not the same as the original did not affect his liability.

4. SAME-BURDEN OF PROOF.

On an issue of non est factum, the burden of proof is on defendant to show by a preponderance of the evidence that he did not execute the contract sued on. 5. APPEAL-REVIEW.

Where there was substantial evidence in the record to support a finding in favor of defendant on an issue of non est factum, such finding will not be set aside on appeal, unless it clearly appeared from the record that the finding was arbitrary, or the result of passion, prejudice, or misconduct.

Appeal from Circuit Court, Barry County; Henry C. Pepper, Judge.

Action by the Standard Manufacturing Company against Joseph Hudson. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This action is on a contract for the price of goods sold and delivered. The defendant, a merchant at Cassville, purchased from plaintiff, an Illinois corporation, through its traveling salesman, a quantity of flavoring extracts, perfumes, and toilet articles, etc., for which he signed a written contract agreeing to pay therefor $173 in four equal installments, two, four, six, and eight months after date. There were a number of provisions in said written contract whereby a showcase was to be furnished and defendant was required to keep the goods constantly on display. Certain profits

were guarantied to defendant, etc., and certain invitation cards were to be furnished him and be mailed out to his customers. Upon the customer returning said card to him, he would redeem the same by giving each holder thereof 25 cents' worth of the goods of plaintiff's manufacture free of charge. This was a means of advertising at plaintiff's expense. There were other provisions, all of which, with those last mentioned, are immaterial here, however, and will not be further noticed. The day the invoice came to hand, defendant wrote plaintiff that he had received the invoice, but that it was not according to contract, and declining to accept the goods. Several letters of complaint passed from defendant to plaintiff. Upon the payments coming due under the provisions of the contract, this suit was instituted in the circuit court of Barry county for the price of said goods.

Defendant's answer admits that plaintiff shipped him the goods mentioned, and avers the affirmative defense of non est factum as follows: "Defendant, for answer to plaintiff's petition, says that he did not sign or deliver to plaintiff the contract filed with plaintiff's petition, nor any contract of which the same is a copy." This answer is verified by the oath of defendant. The issue thus made up, a jury being waived, was tried by the judge. Plaintiff introduced the contract and admission contained in defendant's answer, admitting that the goods had been shipped by plaintiff to him. Thereupon the defendant was put upon the stand. He examined the contract and swore that it was signed by him. Thereupon the plaintiff rested. To sustain the issues of non est factum on his part, defendant testified in substance that he was called upon by plaintiff's agent; that he and the agent had some conversation about the matter, and the agent made the changes in the printed form as to six payments, instead of four, as contended for by defendant, in his presence; that he saw the changes made therein, and that they were made when he signed the contract, and that the contract now appears without such changes in it. Witness Bayless also swore that he saw the agent writing on the contract just before defendant signed it. Defendant testified that the contract was read to him by the agent, with its changes and a so-called duplicate. Anyway a copy of the printed contract with the changes in it, as contended for by defendant, was delivered to him by the agent at the time. This so-called duplicate was introduced in evidence and compared in the trial court, and was as testified to by defendant. The defendant testified positively that, while he was unable to say how the contract had been changed, he had not signed it as it now appeared. "Q. You did not see whether your duplicate and this was just alike? A. They were just the same. Q. You couldn't say there had been any changes in this that you can discover

from reading it? A. You can't get me to say that. I wouldn't say that for the world. It had them changes in it. It was there when I signed it. Q. Will you swear those words in this duplicate were in this when you signed it? A. Yes, sir; was there, but was changed. It was an exact duplicate of the one I have got. Q. How do you know it, if you didn't read it? A. It was changed there before my eyes. Q. Didn't you say you never read anything on it, but relied on the reading of the agent? A. Yes, sir; I say that time I didn't read it. He changed it before I signed it. I wouldn't sign it before he changed it. * * * A. Yes, sir; when he put that in there, he handed it right to me, and he had hold of it when I signed it. He was very careful. * * A. I know

he changed it. Q. You say you did not see any indications of any changes? A. A man can know some things, and I know he changed that contract before I signed it. Then I put my name to it, and then he gave me a duplicate, and then got out quick." Nothing in evidence shows whether the contract was filled out in ink or pencil, except that it was signed in indelible pencil.

The original contract upon which suit was brought, and which was introduced in evidence at the trial, failed to show any of the changes therein as testified to by defendant; that is, it appears to have been the original printed form as printed by the company, without any of the interlineations which defendant insists were made therein before he affixed his signature thereto. If this is true, then the contract sued upon is not the same contract he signed. Both the original contract and the copy thereof furnished defendant by the agent at the time were before the trial court in evidence, and subject to examination and comparison for alterations or erasures, if any had been made therein. A peremptory instruction to find for plaintiff was refused, and five declarations of law given, which will be hereafter noticed. The trial court found the issues for the defendant. Plaintiff appeals to this court, and insists that, inasmuch as defendant admitted signing the contract and failed to point out any interlineations or erasures therein, he failed to sustain his defense of non est factum, and therefore the finding of the court was error.

Peel & Sizer and Davis & Steele, for appellant. George & Landis, for respondent.

NORTONI, J. (after stating the facts). The following declarations of law were given by the court: "(a) The court declares the law to be that all statements, conditions, and understandings of the parties, at the time of executing the contract sued on or discussed prior thereto, including the purported duplicate introduced in evidence, different from the contract signed by defendant, are conclusively presumed to have been abandoned

by the parties; and the contract signed by the defendant is conclusively presumed to contain all that the minds of the parties agreed upon. (b) The court, sitting as a jury, declares the law to be that the defendant is conclusively presumed to know the contents of the contract which he signed, and he will not be permitted to show that he did not read it and agree to all of its terms, and his failtre to read it does not alter or change his liability under said contract. (c) The court declares the law to be that even though the ecurt may believe, from the evidence, that the purported duplicate of the contract offered in evidence by the defendant may not be the same, or may be different from the original sued on, yet if the one signed by the defendant has not been changed since signing it, then that fact would not alter or invalidate the one he did sign, and the issues must be for the plaintiff. (d) The court, sitting as a jury, declares the law to be that a party is bound to know the contents of writing signed by him, and if he signed the same without reading it, or relying upon the representations of a stranger, he is nevertheless bound by the contract, and cannot testify as to his understanding of the conTact different from the plain language of the writing. He is bound by his agreement deliberately entered into." These instructions correctly declared the law of the case, as has been settled by former adjudications

this state. See Crim v. Crim, 162 Mo. 544, BS. W. 489, 54 L. R. A. 502, 85 Am. St. Rep. ; Kellerman v. Railway, 136 Mo. 177, 34 3. W. 41, 37 S. W. 828; Mateer v. Railway, 206 Mo. 320, 16 S. W. 839; O'Bryan v. KinDey, 74 Mo. 125; Snider v. Adams Express Co., 63 Mo. 376; Johnston v. Cov. Mut. Ins. Co., 93 Mo. App. 580.

The court also declared the law as follows: The court declares the law to be that the burden of proof is upon the defendant to show by a preponderance of the evidence that be did not sign the contract sued on, and mless he has shown by a preponderance of the testimony the finding should be for the paintiff." This is a correct declaration of the law on the subject, and put the burden of proof upon the respondent to show by a preponderance of the evidence that he had Bot signed the contract as it then appeared, and therefore it was not his deed. The result is, if there is substantial evidence in the record to support the finding of the trial court, we are not authorized to interfere terewith, unless it appears clearly from the record that the verdict is arbitrary, or the result of passion, prejudice, or misconduct; and there is no suggestion to this effect in de case. Woodard v. Cooney (Mo. App.) 85 & W. 598, and cases cited therein. See, also, Teber v. Amer. Cen. Ins. Co., 35 Mo. App. 21; Blanton v. Dold, 109 Mo. 64, 18 S. W. 1; Holt v. Johnson, 50 Mo. App. 373; Swayze v. Bride, 34 Mo. App. 414.

There was substantial evidence before the

trial court to support the finding. The respondent was positive that he had caused certain interlineations to be made in the contract before he signed it, and that after the changes were made the contract was the same as the purported copy the agent furnished him. The mere fact that respondent testified at the trial that he could not then discover any signs of interlineations or erasures would not justify this court in setting up its judgment against that of the learned trial judge, who saw and heard the witnesses and had an opportunity to form an intelligent opinion of their credibility and the truth of their statements; for respondent insisted in his testimony that he knew the contract had been changed, even though he could not point out the physical evidence thereof on the paper itself, and in this connection we must remember that the trial court had the original contract and purported duplicate before it, where it could compare the two, and could, and no doubt did, examine closely (with the aid of a glass, if need be) for evidence of prior interlineations and erasures thereof, and that the court took into account the physical appearance of the contract, along with the testimony of respondent, when forming its judgment as to whether or not the contract had been changed, and accordingly found it to have been changed, and therefore not respondent's deed.

Finding no error in the record, the judgment must be affirmed. It is so ordered. All concur.

ZEIGENMEYER v. CHARLES GOETZ LIME & CEMENT CO. (St. Louis Court of Appeals. 19, 1905.)

Missouri. June

1. MASTER AND SERVANT SAFE PLACE TO WORK-DUTY OF MASTER.

A master is only required to exercise reasonable care to provide as safe a place for the performance of the services by a servant as the character of the work to be done will permit, and is not bound to furnish a safe place, where the danger is temporary or arises from the hazard and progress of the work itself.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 173, 179.] 2. SAME.

Where plaintiff was employed to work in a quarry, and knew of the danger from falling rocks on the setting off of blasts, and, on being warned, stepped into a lime kiln chimney, which he knew was defective, and was there struck and injured by a falling rock thrown out by the blast, defendant was not guilty of negligence in failing to provide him with a safe place to work. 3. SAME-ASSUMED RISK.

Plaintiff, having continued to work with full knowledge of the fact that falling stones of various sizes were thrown out by such blasts, and having voluntarily sought safety in the chimney, when by slight effort he could have obtained adequate protection in other places, assumed the risk.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 583.]

Appeal from Circuit Court, Franklin County; Wm. A. Davidson, Judge.

Action by James Mitchell, revived after his death in the name of Louis F. Zeigenmeyer, his administrator, against the Charles Goetz Lime & Cement Company. From a judgment for plaintiff, defendant appeals. Reversed.

was

This is an action for personal injuries; a stone from a blast having fallen upon plaintiff's head, whereby his skull crushed. The plaintiff was in the employ of the defendant as a laborer at its quarry. The defendant, a corporation, owns and maintains a stone quarry in Franklin county. The plaintiff's testimony shows the following facts, which are not controverted by the defendant:

Plaintiff resided 14 miles from the quarry, and in the year 1893 or 1894 had worked in the quarry, and was familiar with the work and its risks. In the latter part of March, 1902, he again employed himself to defendant as a laborer. His business was that of a teamster, hauling wood to the furnaces of the kilns, and hauling stone into the kiln. The site of the quarry is well elevated on a high bluff on the south side of the Missouri river. The Frisco Railway runs along at the foot of the bluff, and between the plant and the river. Defendant's kiln was built between the railway track and the bluff. A bridge about 14 feet wide was built over the roof of the kiln and connected with the bluff. A very large smokestack from the kiln, as much as 10 feet in diameter, protruded above this bridge. It was the duty of the plaintiff to load his cart with stone in the quarry, and drive therewith down the hill onto the bridge immediately over the kiln, and dump or unload the stone into this huge smokestack through two large doors provided in the side of this smokestack. The stone would thus fall into the kiln. The stone in the quarry was raised by blasts with large quantities of explosives, as is usual in quarries. There were two kinds of blasts, known to plaintiff and others who worked there-the squib shots, which were small blasts, and the block shots, which were very large and heavy blasts, in which were used from 10 to 15 25-pound cans of powder each. The duties of plaintiff brought him constantly in and out of the quarry, where he loaded his cart with the stone, and he always knew about the blasts, when a blast was being prepared, and about when it would be discharged. After a blast was prepared, but before it was discharged, defendant had some one of its employés, with a loud voice, go out of the quarry and give several whoops at intervals, which was a warning signal to the employés that a blast was about to be fired. It was the duty, then, of all the men to seek shelter from the flying stones. The protection for those who worked in the quarry was usually a shelter in the bluff, which existed by virtue of an overhanging rock. It would accommodate 50 men, and

there were not one-half that number to use it. It was perfectly safe. At least, no flying stone from blasts had ever gotten in there. Plaintiff usually unloaded his cart on the bridge at the smokestack and then crawled under the cart for protection. At other times, he stepped inside of the smokestack for shelter from the falling stones which resulted from the blasts. On the day of the injury, July 18, 1902, after plaintiff had been in this second employment for more than three months, a block shot of 14 cans of powder was about to be fired. One Shelton gave the usual warning. Plaintiff knew of the preparation for the shot, heard and understood, and acted upon the warning by stepping inside of the smokestack, the topmost joint of which tapered from its 10-foot base, leaving a reasonable outlet for the smoke when the kiln was in blast. This topmost tapering joint constituted a kind of roof over the very large lower portion of the smokestack. The topmost portion of the smokestack, the roof portion thereof, was of sheet iron, and not of very strong material, and on the side next to the quarry a portion thereof had broken loose from the rivets, thus leaving a hole through which falling stone could pass. Of this plaintiff admitted having full knowledge, having seen it before. Upon the firing off the blast or shot in question, a stone fell through this hole in the chimney portion or top of the smokestack, striking plaintiff on the head, thereby crushing his skull into his brain, inflicting a severe, permanent, and painful injury. Plaintiff, in his testimony, stated he might have gone into the bluff and have been safe, where the men from the quarry were; but it was 300 or 400 yards out of his way to have done so, or he might have driven his cart and horse to the barn, by opening gates and going to some trouble, and have been safe there; but he had always sheltered on the bridge, either under the cart or in the smokestack. Plaintiff was wholly familiar with the work. He testified that he had worked at everything about the quarry except drilling, also that there were often rocks thrown from the quarry onto the bridge where he took shelter, but not very large ones. He further testified as follows: "Q. To what extent, if any, was rock thrown by blasts from the quarry past the kiln and out into the river? A. Well, I have seen it go 100 yards out in the river from block shot. Q. What kind of rocks? A. Well, rocks that weighed from one to three pounds, depending on the size of the shot. Q. What do you know about it throwing rock across the river? A. Well, recently, I do not know. Q. Well, how far do you know of it throwing the rock in the river? A. It has gone as far as 300 yards that I know. Q. What did

you say were the sizes of the rock that fell there at the bridge? A. Well, from the size of your fist down." He further testified