clude another mine operated by the plaintiff | provisions of its contract and for recovery of and known as the Wingfield mine. said excess so paid under said contract, and for such relief as to the court seem just in the premises. M. R. Lively and A. G. Young, both of Webb City, and Howard Gray, of Carthage, for appellant. C. C. Spencer and A. E. Spencer, both of Joplin, for respondent. The plaintiff states that it fully complied with all the terms and provisions of said contract and delivered to the defendant all the machinery it was to deliver to it under said contract, and purchased and had installed all the machinery which it was to purchase from the defendant in changing the current required by the terms and provisions of said contract, and paid the defendant in full for all current used according to the terms and provisions of said contract, but the plaintiff states that the defendant, in disregard of its said contract and in disregard of its agreement that, if the amount of current used exceeded $2,400 per month, it would repurchase from the plaintiff and remove from the plaintiff's property all the machinery furnished it under the contract and would reinstall all the machinery that the plaintiff had about its said mines at the time said contract was entered into without cost to the plaintiff, and notwithstanding the terms of The circuit court found for the defendant said contract, the defendant unlawfully and ar- and dismissed plaintiff's bill. From that bitrarily charged the plaintiff for power in ex-judgment of dismissal the plaintiff duly apcess of said contract rates the following pealed the cause to this court. amounts: The plaintiff further states that after the execution of said contract the said defendant continued to make contracts to furnish others power and to such an extent that it was unable to supply the power from water sources, mentioned in the first part of this petition, and was required to install at heavy expense machinery and equipment for creating power by means of coal, gas, and other methods, and on account thereof undertook and did give as an excuse to the plaintiff for failing to comply with its contract with plaintiff that the increase in cost on account of such change in power made it impossible for defendant to comply with its contract without suffering some loss. The plaintiff further states that it protested against said increase of rates, whereupon the defendant notified plaintiff in writing that, if the January bill, including the excess above mentioned over and above the original contract, was not paid by a certain date, it would shut off the power from plaintiff's mines. Plaintiff states that the result of shutting off of said power would have caused it irreparable damages to its mines and would have become flooded with water, its mining force disorganized, and it had no adequate remedy at law, and thereupon after protesting, both plaintiff and defendant recognizing the damages that plaintiff would sustain if defendant shut off its power, it was agreed that the plaintiff should pay bills of January and February under protest, and that suit should be instituted to recover such excess. Wherefore the plaintiff prays the court for a judgment enjoining the defendant from shutting off the power from its mines and enjoining it from failing and refusing to carry out the WOODSON, P. J. (after stating the facts as above). The only things sued for in this case are the excess charges made for the use of electric current for the months of January and February, 1918, and a prayer for an injunction enjoining the defendant from shutting off the electric current being furnished by plaintiff to defendant for, the use of the latter's mines. It is apparent from reading the bill that this court has no jurisdiction of the cause, the amount involved being only $5,985.29, and, there being no constitutional question involved, the appeal should have been taken to the Springfield Court of Appeals. For the reasons stated, the cause is transferred to that court. All concur. cessive drinking held not slander. It is not slander to accuse a man of drink ing too much or of being ill with alcoholism. In a slander action, where the original petition alleged the use of language which did not charge a crime, but only imputed to plaintiff unbusinesslike conduct, plaintiff's requested amendment to insert among the words complained of the alleged charge by defendant that plaintiff was a defaulter held properly refused. 4. Account 18-Checks held admissible. In son's suit for accounting against his father, certain checks about which there was a dispute whether they were proper items for accounting held properly admitted in evidence. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) 5. Appeal and error 204 (4)-Introduction of evidence not objected to not reviewable. Where the introduction of a contract in Opinion. MOZLEY, C. (after stating the facts as evidence was not objected or excepted to, it above). [1] 1. The trial court rendered an will not be reviewed on appeal. Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge. Suit by Elmyr A. Laughlin against Henry D. Laughlin. From judgment for defendant, plaintiff appeals. Affirmed. Facts. opinion which is preserved in the record which we set out in full: This suit by son against father, between whom most friendly and intimate personal and business relations existed from before the time when the son became of age in 1900 until the rupture in 1915. The severance was progressive, as evidenced by correspondence from the early part of the year, becoming more hostile and bitter on the part of the son and This is a suit brought by Elmyr A. Laugh- more argumentative and critical on the part of lin, son, against his father, Henry D. Laugh-January 1916. Then this suit for an accountthe father until "finis" was written early in lin, in the circuit court of St. Louis county, ing, filed April 14, 1917, including among claims Mo., March 14, 1917. The petition was of indebtedness a count for alleged slander. amended by interlineation. The cause was Objections on account of misjoinder were tried on said petition as amended, but on ac- waived. count of its great length it will not be set in hæc verba, for reasons hereinafter appearing making it unnecessary. It is sufficient to say that it pleads transactions large in number and amounts, complicated, with page after page of exhibits containing a wilderness of figures, and covering a period of 15 years, from 1900 to 1915, when the rupture between these parties which led to the suit occurred. It alleges that "Neither party has kept a true or full account of said subject-matter, and that neither is able by himself to state a full, fair, or accurate account with respect thereto, and that a true balance can be ascertained only as the result of an accounting and discovery." It embraces also an action for slander against defendant, in which plaintiff lays his damages at $25,000. It concludes with a prayer for a money judgment or credits therefor in the instant suit. Defendant filed a general and a specific denial of the averments of the petition, made admissions of some of the averments in the petition, and further pleaded that he had given to plaintiff as gifts money and property amounting to $100,000. Plaintiff replied with a general denial of the new matter set up in the answer. Defendant filed in this court an additional abstract of the record, which, taken in connection with plaintiff's abstract, presents very fully the facts of the cause. The cause was tried to the court, who rendered a decree unsatisfactory to plaintiff and within four days thereafter he filed a motion for a new trial, which, on February 3, 1919, was overruled, and said cause was duly appealed to this court March 29, 1919. The facts will be further noted in the opinion following. In the evidence there is much expression of sentiment which would appeal to the feelings rather than to the judgment. The written argument on one side stresses such appeal, and at places is abusive, and upon matters outside the record; and so far as it is such must be disregarded by the court. Otherwise the argument is full and specific. On the other side the proprieties are carefully observed and the argument confined to the issues, summarizing and submitting conclusions without going much into details. The purpose of the parties, understood between them, was that defendant would assist the plaintiff to start in business, giving him properties and money to work with from time to time to the extent ultimately of $100,000, and advising and assisting as to the management and control of the business and properties. In this way properties to the value of about $50,000 to $58,000 were given to plaintiff, and he operated in several enterprises. Plaintiff would seek the advice and assistance of defendant, and defendant would volunteer aid and advice to plaintiff. After giving a business or manufacturing plant to plaintiff, or placing him in charge of it, with a promise to give it or an interest in it to him, defendant would discover a new and supposedly better enterprise which he would advise plaintiff to take instead of the former, and he would install plaintiff in the new, relieving him of the old. From time to time defendant would also borrow moneys given by him to plaintiff or earned by plaintiff, and would give or lend plaintiff moneys, so that there was a running account of many items between them, without settlement or offer to settle, and with much uncertainty in the minds of both as to how the account stood, and also as to whether certain properties belonged to plaintiff or to defendant. After this had run on for some 10 years or more to the breaking point in 1915, it appeared to plaintiff and his friends that away from him, and this was expressed in much that defendant had given had been taken the saying, "The judge (meaning defendant) Such is giveth and the judge taketh away." A. E. L. Gardner, of Clayton, and W. N. the basis of some of the claims of plaintiff in Brady, of Chicago, Ill., for appellant. Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent. this suit. Such mutual trust and confidence existed between the parties that they made no effort to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes keep track of the account between them, or to define their relations to the different properties. The plaintiff was afflicted with an attack of meningitis in the latter part of 1914, from the effects of which his recollection of these matters has been impaired. And the defendant's mind was so engrossed with other business matters of his own that he has not kept in memory these matters of business with his son. So the court is asked to determine what the parties cannot remember and agree upon themselves, from what they do remember and testify to in connection with the other evidence. Exhibit A. In stating the account, plaintiff has set out as debts the items for which he has issued checks to defendant or to others for account of defendant, as he offers evidence to prove, with such credits as he from investigation supposed defendant was entitled to. After production of checks issued by defendant, plaintiff has withdrawn the credits in his first statement which are not shown by any such check. Defendant insists on the credits originally the credits originally stated, and claims items of credit or indebted ness shown by other checks covering a longer period. As to some of the checks given for large items, there is no recollection by the parties or any witness as to what they were given for. The checks may have been for money loaned or in payment of indebtedness. The important items in dispute will be specifically mentioned. The E. H. L. Items. The so-called Insull note, probably for $10,000, was turned over by Mrs. Ella H. Laughlin, mother of plaintiff, to him for the defendant. Plaintiff converted into cash for $9,708.33, and turned this over to defendant. In return defendant was to transfer to Mrs. Laughlin 100 shares of stock at the par value of $10,000 in the Northern Hotel Company, and until he did so he was to pay the amount of dividends on that amount of stock. He failed to deliver the stock, but paid amounts equal to the dividends, for a time at $200, and later at $250, per quarter year. These payments were made by defendant by his checks to plaintiff, and by plaintiff at or about the same times by his checks to Mrs. Laughlin for the same amounts. When plaintiff went away in 1914, and at other times, the defendant dealt with Mrs. Laughlin by correspondence, or through other agency, and has adjusted the matter with her, to some extent, at least, partly before and partly since this suit was brought. The plaintiff acted as an intermediary between defendant and Mrs. Laughlin, who were estranged from each other, and with both of whom he was on friendly terms. They were the real parties to the transactions. The principal item of September 11, 1905, $9,708.33, should be eliminated, because it was an indebtedness to Mrs. Laughlin. The items of interest paid in lieu of dividends could also be eliminated if they were the same on both sides of the account, but they are so only in part, and the evidence does not in all cases show what payments by defendant were on this account. The items of September 9 and 22, 1905, for $5,000 each, and the item of credit November 19, $9,854.17, are claimed to be connected with the Insull note transaction. The evidence fails to show this, or to show what these items were for. The two $5,000 items are proved by checks, different from the check for $9,708.39. The item of $9,854.17 is not proven by check or otherwise, and should not be allowed defendant. The Notes Returned. The first two items of $3,000 and $5,000 were for checks given for loans on the notes of same dates, returned with the letter of February 8, 1915, to be destroyed. This matter is old and uncertain; the notes appear to have been satisfied in some way. The items should not be allowed. The Dam or Water Power Items. These belong properly in the separate account with reference to the dam under exhibit B, paragraph 5. But, since the title to that property was taken by defendant, the items may be allowed here as payable by defendant, and taken into account under said paragraph 5. They amount to $1,443.43. The Farm Items. These items were for improvements and exTo a considerpenses upon plaintiff's farm. defendant, or at the direction of defendant for able extent, the improvements were made by his own benefit, to provide a hunting lodge and "playground" for himself and friends. To some extent they were made by plaintiff for his own benefit. Plaintiff paid items to the amount of $568.84 by his own checks, and at about the about the same time caused many items amounting to about $4,908.72 to be paid by checks of the Joliet Company, and charged to the common account of plaintiff and defendant with that company, in the name of the defendant. As to some of these improvements and expenses, defendant wrote in his letter of September 16, 1915, that he did not ask plaintiff to charge himself with the cost of the "new house," the corncrib, or the chicken house, or with moving sheds, or for board and expenses for certain persons, or for turkeys and expenses and the other "extravagances" of defendant. In the same connection, a few days later, on September 22, he wrote that he did not intend to pay all "your bills at Oregon." Where to draw the line is left uncertain. This is more particularly explained hereinafter, in referring to the checks of the Joliet Company charged to the defendant's account. The farm items in plaintiff's account, amounting to $568.84, should be disallowed for failure of proof, in the same manner and for the same reason as the other items of farm expenses charged to defendant's account. Fortieth Street Items. These are properly charged against other items credited to defendant in the account. The H. L. P. Items. These were payable by defendant, and paid by plaintiff for him, and are properly charged. (232 S.W.) The Item of Check to Hotel Company. This item of $2,000, April 26, 1910, should not be allowed, for reasons stated under Exhibit B, paragraph 12. The Other Items. The notes with indorsements (if made) are not declared upon or produced, the parole guaranty being relied upon. On the other hand, the statute of frauds is not pleaded or insisted upon, nor is the statute of limitations. If any promise were made, it is difficult, after to determine what it was. The purposes of the statutes referred to were to relieve courts as well as parties from acting upon such un These are not disputed or questioned, and this lapse of time, with the evidence at hand, should be allowed. Conclusion as to Debit Exhibit A. From total of debits, as per Exhibit A..... $52,949 48 certainties. If the promise was to indorse, it does not appear that it was broken. The indorsements should have been sued upon if they had not been, in effect, released with the notes in the settlement. The settlement was voluntarily made, after careful deliberation, for a part of the amount of the notes. There is no claim of fraud or deceit against the defendant in that connection. On the whole evidence the al$52,781 43 leged contract of guaranty is not shown. 168 05 20,277 17 Exhibit B-Paragraph No. 3. This claim arose out of a sale of stock in the Porter Battery Company by plaintiff to Dr. William A. Tichenor in or about November, 1903. It appears that plaintiff was about to Amount of debits found for plaintiff........ $32,504 26 sue Dr. Tichenor for a balance of $5,500 due Defendant's Credits. The amount of payments by checks as per plaintiff's Exhibit D is conceded, $23,877.85. The checks for use of Mrs. Pfister appear to have been used to purchase exchange for her. Some of the other items claimed by defendant on the open account are old and doubtful. They may have been settled in connection with the old notes for $3,000 and $5,000 above referred to, or in some other manner. There is failure of proof as to all of them. This leaves the open account as follows: Debits Credits Balance $32,504 26 $8,626 41 There is no evidence of demand on this account prior to the commencement of this suit March 14, 1917. It should bear interest from that date at 6 per cent. per annum, which makes the amount $9,445.91. Exhibit B-Paragraph No. 1. This claim was dismissed by plaintiff at the beginning of the trial, and should be dismissed in the decree. Exhibit B-Paragraph No. 2. So far as plaintiff has any cause of action, it depends upon the claim that in the year 1904, while considering an offer of one Sol Goldberg to take the West Coast Company property, its capital stock, and real estate, for $64,000, of which $58,000 was to be payable in notes, defendant requested plaintiff to make the sale, and promised that in such case he would guarantee the notes; that defendant indorsed some of the notes, but failed to indorse all, or, if he did indorse all, failed to pay some $23.000 of the notes which plaintiff failed to collect; and that in 1905 Goldberg was in failing circumstances, and offered to settle for $18,000, and this was accepted by plaintiff on the advice of defendant, resulting in a loss of $23,000. on the stock, against which Tichenor had some counterclaim; and, on account of the friendship of the defendant for Tichenor, he requested and advised the plaintiff to submit the matter to arbitration, and recommended one Dr. Ferguson as arbitrator. This was agreed to between plaintiff and Tichenor. Upon the arbitration, Dr. Ferguson rendered what defendant called an outrageous decision against plaintiff. Defendant thereupon promised to make good plaintiff's loss by this decision. After some 12 or 13 years the matter was brought up again in correspondence, and the defendant stated in a letter dated September 16, 1915, that he would make good the loss by credit against plaintiff's indebtedness to him, without promising or agreeing to any particular amount. The indebtedness referred to was the overdrafts of plaintiff with the Joliet Railway Supply Company, and es- . pecially the alleged overdraft in the account of the name of the defendant, claimed to be due defendant, hereinafter mentioned, but not allowed for want of sufficient evidence. This promise of defendant was voluntary, not based upon any pre-existing legal obligation, and therefore without consideration. It was not shown that defendant guaranteed a favorable decision, if he could lawfully have done so, or that he promised to make good the loss if plaintiff should not appeal from or seek to overturn the award or arbitration. Finding on this claim for defendant. Exhibit B-Paragraph No. 4. The service for which plaintiff here makes a claim was performed by plaintiff as intermediary between his parents, who were divorced, in obtaining money from the mother for the use of the father, and was performed without expectation of plaintiff to charge or of defendant to pay. Finding on this claim for defendant. Exhibit B-Paragraph No. 5. The water power property was taken in the name of the defendant, to be held and managed by him, not for himself alone, but for both | pany, and placed the plaintiff in the position parties in equal shares, or as a "fifty-fifty" of president and manager of the company, with enterprise, as was agreed by them after dis- the expectation that plaintiff might become cussion in their correspondence about Septem- familiar with and develop the business, and, ber 16, 1915. It does not appear when the if he was successful in it, defendant would sale of the property took place, except that it make a gift of the stock or some part of it to was at some time later than May, 1913. The plaintiff, in carrying out his general purpose cost and expenses included: to give to plaintiff properties of the value of $100,000. There was no definite agreement to make a gift of the property or any specified part of it at any particular time, or when it became worth $100,000. Original costs Mortgage paid off to Etnyre... Items paid from the Joliet Company, charged to account of defendant.. Total cost... $1,500 00 560 00 2,858 10 1,443 45 2,349 90 $8,711 45 The selling price was $12,500. The profit was the difference, $3,788.55, of which the plaintiff is entitled to one-half, $1,894.27. To this interest should be added at 5 per cent. per annum from September 16, 1915, making the amount $2,185.77. Exhibit B-Paragraph No. 6. According to plaintiff's version of this transaction, he had invented a vacuum cleaner in 1908, and was associated with one Hengen in the business of manufacturing and handling it, when in 1909 the defendant induced him to give up that business and go into a proposed brake beam business with defendant, promising plaintiff he would manage and sell. the vacuum cleaner business and got more out of it than plaintiff could, and thereupon plaintiff accepted the proposition and defendant managed the vacuum cleaner business so poorly that nothing was realized out of it by either. On this statement plaintiff is not entitled to recover. There is no charge or proof of deceit, no evidence that defendant made any profit, or that plaintiff would have realized anything had he remained in the business. It is true that defendant did ask plaintiff to go into the brake beam business, but that he made any contract as to the vacuum cleaner busiIness is not proven. Finding for defendant on this claim. Exhibit B-Paragraph No. 7. Defendant probably advised or requested plaintiff to convey a small piece of 1.3 acres of land in front of his neighbor, Judge Cart wright, to the neighbor for $140 or $145. It does not appear that defendant promised to pay plaintiff any more for it, or that it was worth any more. Finding for defendant on this claim. Exhibit B-Paragraph No. 8. It is conceded that defendant promised plaintiff extra compensation for sales of Perry side bearings to the Chicago, Burlington & Quincy Railroad Company; and plaintiff was given credit on the sales to that company. It is not shown by the evidence that such promise applied to other sales, especially to sales to the Pittsburg & Lake Erie Company as plaintiff claimed. Finding on this claim for defendant. Exhibit B-Paragraph No. 9. The defendant owned nearly all the shares of stock in the Joliet Railway Supply Com Plaintiff received a salary, and it does not appear that, by any special effort or inventions or patents transferred to the company, he improved or added to the value of the property or business as claimed by him, or that he was successful in the business. On the contrary, it was in a failing condition when he broke down in health and gave it up in November and December, 1914. This claim must be found for the defendant. Exhibit B-Paragraph No. 10. This is a charge of slander, that defendant falsely and maliciously stated to certain persons that plaintiff had "wrecked the Joliet Supply Company," and that plaintiff had "overdrawn the funds of the Joliet Railway Supply Company to such an extent that the company was then in imminent danger of bankruptcy, and that defendant was in immediate necessity of borrowing $25,000 to protect plaintiff from "exposure." Further, that the real nature of plaintiff's illness was alcoholism, and that the real cause of it was whisky. It is further alleged that by said statements plaintiff's credit in banking circles was impaired, and that he was prevented from obtaining moneys necessary to the development and prosperity of the business, which he would have been able to secure, to his damage. The language complained of did not charge a crime. It could be actionable, if at all, only by imputing to plaintiff conduct injurious to his character and standing as a business man. It is not alleged or shown that he was a merchant or in a trade or business for himself, so that his credit might be impaired by charging insolvency. The insolvency charged was that of the company. The allegation is in substance that it was charged that, being president of the company, he overdrew his account, and wrecked the company's business, to the extent that it was in danger of bankruptcy. There is no allegation that the charge was that this was done fraudulently, corruptly, or dishonestly. If true, it may have been due to poor judgment or bad management. It is not alleged that plaintiff was in any profession or business which would be affected; nor does it appear that, at the time of the ut terance of the alleged words, he was an employee or officer of the company or of a business of any kind. Neither Griffiths nor Irwin testifies to the use of the principal words alleged-"wrecked," "overdrawn," or "overdraft," "bankruptcy," "exposure," "alcoholism," or any of them. J. B. Johnson testifies that defendant said he was much embarrassed by Elmyr's overdraft; that Elmyr was a defaulter, and had caused him great anxiety as to whether he would be arrested; that he had come to the conclusion that it was alcoholism. The words are entirely |