crease by giving fifty thousand dollars, or five hundred shares, to each of the three stockholders, and by placing the remaining fifty thousand dollars, or five hundred shares, to the credit of the old firm of George Knapp & Co. on the books of the corporation, "to be disposed of as thought proper by the present directors of the company, and, when disposition should be made of any portion of said stock, the same to be specially noted in the records of the proceedings at the next meeting of the board of directors." In the argument of the case, both parties seem to have regarded the clause with respect to a subsequent disposition of the stock as provided for by the resolution,-that is, to secure the services of new parties,-and at the same time make such parties stockholders, so that they would be personally interested in the success of the enterprise. The contention of the plantiff is that the old firm of George Knapp & Co., under the resolution of January 6, 1868, took the 500 shares set apart to it as the absolute and unconditional owner, subject, however, to be disposed of by the present directors of the company to secure the services of new parties in the working department, thereby making them personally interested in the corporation, but for no other purpose, nor in any other way; and that when George Knapp, one of the three directors, died, in 1883, before the disposition of such stock for the purposes indicated, the power and authority to do so no longer ex isted. Upon the part of the defendant, the contention is that it is manifest from said resolution that there was no intention to give the shares claimed by plaintiff as administrator to the old firm, and that the evident purpose was to set apart these shares of stock as a trust fund, to be used for the purpose of securing the services of new parties in the working department of the corporation of George Knapp & Co., as occasion might seem to require. In support of defendant's contention, it is argued that $50,000 each were given to George Knapp, Nathaniel Paschall, and John Knapp, while the $50,000 in controversy, by the terms of the resolution, were only placed to the credit of the old firm, to be disposed of as they thought proper by the directors of the company, for a special purpose, and, if it were the intention to give absolutely the $50,000 to it, there is no apparent reason why it should be placed to its credit, or why the same language was not employed in disposing of the stock to George and John Knapp and the estate of Nathaniel Paschall; that the stock placed to the credit of the old firm was subject to the control and disposition of the president and directors of the company, to be specially noted in the records of the proceedings at the next meeting thereafter, which is inconsistent with the theory that it was intended as an absolute gift. Unless the resolution of January 6th is uncertain and Indefinite as to its meaning, the rights of the

parties depend upon its construction, and, in passing upon this question, the resolution, in its entire scope and meaning, must be taken into consideration, and, if unambiguous, the case adjudged by it alone, without the aid of contemporaneous or subsequent acts of the corporation. Carr v. Lackland, 112 Mo. 442, 20 S. W. 624; Railway Co. v. Trimble, 10 Wall. 367. In cases of this kind, it is only where the language used is ambiguous or uncertain as to its meaning that it should be construed in the light of the situation attending the transaction; the purposes to be attained and the conduct of the parties are to be taken into consideration in arriving at their intention. Fleming v. Graham, 34 Mo. App. 160; Carr v. Lackland, supra.

Thus, it is said in Bishop on Contracts (section 412): "In a case of doubt, the intention which the parties, by their acts under their contract, have practically given it, will have weight, and it may be controlling. But this rule will not be suffered to overthrow the plain terms of an agreement." When the language is clear, and will admit of but one interpretation, the language so used is the best possible evidence of the intention. The referee was of the opinion that, upon the face of the resolution, there were doubts as to the real intention of the parties, and that contemporaneous acts of the corporation with respect of the stock should be taken into consideration in arriving at the true intent and meaning of the resolution, and that, when this shall have been done, it is shown that the 500 shares of stock were given to the old firm, as its absolute property, with the power in the present directors to dispose of them as they thought proper. When the corporation increased its stock to $500,000, the increase, with the exception of the $50,000 which were placed to the credit of the old firm, was immediately distributed equally among the three stockholders, to whom proper certificates were subsequently issued. If the stock was intended as a gift to the old firm, it is difficult to see why it was not divided among its members, as were the remaining $150,000, and why it should simply be placed to the credit of the old firm, with power in the directors to dispose of it as they saw proper. Absolute gifts are not usually made in that way. The same persons to whom the remainder of the stock was given constituted the membership of the old corporation, and the manner in which the stock sued for was disposed of seems inconsistent with the theory of an absolute gift to the old firm. If this had been the purpose, why was it not disposed of in the same way as the other stock, and why was it that the corporation retained dominion and control over it? If such had been the intention, it would seem that there was no necessity for giving a part of the stock to the members of the firm individually, and a part of it to them as a firm or corporation. Such circumstances, when taken in

connection with the fact that no certificates of stock were ever issued for the stock to the old firm, while there were to the individual members thereof for the stock given to them, respectively, is inconsistent with the theory that there was an absolute gift to the old firm. It is not thought that the fact that the capital of the corporation, which is its property, the title to which is in it, while the capital stock of the corporation, which represents the interest of the stockholders in that capital, and belongs to them, makes any difference with respect of the authority of the stockholders to dispose of either when it is done by and with the consent of all the stockholders, and the interests of creditors of the corporation are not affected thereby. It can make no difference, in construing the resolution, whether the corporation owned the stock and disposed of it, or whether the stockholders owned it, and, by resolution of the corporation, disposed of it.

We quite agree with counsel for plaintiff in that we do not deem it necessary to go into a discussion of the law of trusts, as the question to be determined is, what was the intention of the parties in increasing and distributing the stock, as appears from the resolution in question, if its language is unambiguous and comprehensive? Bliss, J., in St. Louis Gaslight Co. v. City of St. Louis, 46 Mo. 121, in speaking of a contract, says: "When it is plain that only one meaning can be attached to it, it admits of no other construction, and that meaning must be enforced. To give it any other would be making, rather than interpreting, a contract." From the views herein expressed, we are constrained to hold that the intention and meaning of the resolution was that the stock in controversy was placed to the credit of the old firm, in trust for the defendant, to be disposed of as thought proper by the directors of the company, and that the plaintiff is not entitled to recover. The judgment is reversed. All concur.

STATE v. NICKENS.

(Supreme Court of Missouri, Division No. 2. June 12, 1894.)

ASSAULT WITH INTENT TO KILL INSTRUCTIONSEVIDENCE-CHARACTER OF DEFENDANT.

1. On the prosecution of a saloon keeper for an assault with intent to kill, committed in his saloon, an ordinance requiring saloon keepers to give bond to keep an orderly place is not admissible, as the defendant would have the authority to prevent disorder in his saloon whether there was such an ordinance or not.

2. The trial court may ask a witness such questions as it deems necessary for its own information and that of the jury.

3. On a prosecution for an assault with intent to kill, with malice aforethought, the failure to instruct on a lower grade of assault cannot be objected to for the first time on appeal.

4. Where an instruction as to the evidence

of the good character of defendant is not requested, the failure to instruct thereon is not reversible error. Sherwood, J., dissenting.

5. A new trial for newly-discovered evidence should not be granted where the evidence is merely cumulative, and there is no satisfac tory reason given why the witnesses were not produced at the trial, and the affidavit of the defendant is not filed to show that he did not know of the evidence at the time of the trial.

Appeal from St. Louis criminal court; Henry L. Edwards, Judge.

Andrew Nickens was convicted of assault with intent to kill, and appeals. Affirmed. McDonald & Howe, for appellant. R. F. Walker, Atty. Gen., and C. O. Bishop, for the State.

BURGESS, J. From a conviction in the St. Louis criminal court for an assault with intent to kill one Andrew Hopkins, on purpose and of his malice aforethought, defendant appeals. Defendant's punishment was fixed at two years' imprisonment in the penitentiary. After ineffectual motions for new trial and in arrest, he presented his bill of exceptions to the trial judge, who refused to sign the same, and certified his refusal on the ground that it was untrue. Defendant then presented a bill of exceptions signed by three bystanders, which the judge refused to allow to be filed; and, within five days, de fendant deposited his said bill of exceptions, supported by affidavits, with the clerk of the court, and also, within five days, the circuit attorney, representing the state, filed counter affidavits.

The difficulty occurred in a saloon of which defendant was manager. Both the defendant and Hopkins are negroes. On the evening of November 19, 1892, Hopkins, in company with one John Ray, went into the saloon, in which there were several persons, drank several times, when Hopkins commenced taking off the hats of some of those present, when defendant ordered him to desist, give the hats back, and then ordered him out of the saloon. Hopkins started to go out, when he was stopped by the defendant, who, about the same time, drew his pistol. Hopkins said: "You have got a gun. Why don't you shoot?" Defendant then fired at Hopkins, the ball entering the right arm near the wrist, and coming out near the el bow. When defendant was arrested, a few minutes after the shooting, he stated that he had shot Hopkins for disturbing the peace, and made the remark: "God damn him! I wish I had killed him." No weapons were found upon Hopkins. The theory of the defense was that of self-defense. Defendant admitted the shooting; testified in his own behalf that he was not personally acquainted with Hopkins; that Hopkins was under the influence of liquor, and drank two or three times in the saloon; he was very boisterous and noisy; that he pulled off the hats of two or three men, who raised quite a row

about it. "I came out, and told Hopkins to give the hats back to the boys, and keep quiet, whereupon he got mad and cursed me. Hopkins gave Brown his hat back, but refused to give McGee his, and somebody said to Hopkins, 'Slug him in the neck' (meaning McGee). Not wishing to have any trouble in there, I ordered Hopkins out of the saloon, and he turned to me, with his left hand in his left hip pocket, and acted like he was going to draw a pistol, and said to me: 'Damn you! You have got a gun, have you? Well, so have I,-as big a gun as you have got,and, damn you, shoot,'-and was very threatening, and acted like he was going to pull his pistol out, and I was afraid he was going to shoot me, and I shot first. I did not know the man.

I saw he was under the influence

of liquor, and, when he pulled his hand back from his pocket, I was afraid he would shoot me; and, in order to be first, I shot him before he could get a chance to shoot me. He had started to back out of the saloon, but at the time he started to pull out his pistol he stopped, and turned towards me; and when he ran his hand down in his hip pocket, before he could have time to draw his pistol, I shot." Defendant proved a good character for peace and quiet. The court instructed for shooting with malice aforethought, and on self-defense.

Upon the trial, defendant offered in evidence an ordinance of the city of St. Louis in relation to dramshops, for the purpose of showing that, before a license could be obtained for a dramshop, the applicant had to give a bond in the sum of $2,000, conditioned that he would keep an orderly house, etc., which the court, on objection of the state, excluded; and this, it is insisted, was error. The ordinance was clearly inadmissible for any purpose, having no connection whatever with, or bearing upon, the case. The defendant had the same right without the ordinance that he had with it, to prevent disorderly conduct in his place of business, and to use all necessary means for that purpose. The ordinance was not intended for his protection, and to enable him to keep an orderly house, but that he might be held amenable to the law for failing to do so, and, for a violation of the ordinance in this regard, be prosecuted upon his bond by the city.

Objection is taken to the action of the court in propounding questions to the witness Sommers, but these remarks were not embodied in the motion for a new trial, and cannot be reviewed here. This contention, however, seems to be without merit. It would be indeed strange if the trial judge were not permitted to ask such questions of witnesses, during the trial, as he thought necessary for his own information, or that of the jury, without being subject to unjust criticism. It was not only his right, but his duty, to do so. State v. Pagels, 92 Mo. 310, 4 S. W. 931.

It is also contended that the court should have given an instruction for the lower grade of assault with intent to kill. It is only necessary to say, with respect of this contention, that no instruction for the lower grade of assault with intent to kill was asked by defendant, nor was the attention of the court, for failure to thus instruct, called in the motion for new trial, and the objection cannot be raised for the first time in this court. State v. Cantlin (Mo. Sup.) 23 S. W. 1091; State v. De Mosse, 98 Mo. 344, 11 S. W. 731; State v. Foster, 115 Mo. 448, 22 S. W. 468; State v. Noeninger, 168 Mo. 166, 18 S. W. 990.

What has been said applies with equal force to the failure of the court to instruct on the evidence as to the good character of the defendant. No instruction on this' subject was asked by the defendant or his counsel, and it was not reversible error for the court to neglect to instruct on this phase of the case. State v. Murray, 91 Mo. 97, 3 S. W. 397; State v. McNamara, 100 Mo. 100, 13 S.

W. 938.

There was no error in overruling defendant's motion for a new trial on the ground of newly-discovered evidence. The evidence was merely cumulative, and would not likely produce a different result on another trial. Moreover, both of the persons whose affidavits were filed in support of this contention, viz. George Rogers and Ellen Donahue, were witnesses to the difficulty; one of them, Ellen Donahue, having a lunch counter, the door of which opened into the room where it occurred, in which she was standing at the time, and no satisfactory reason is given why they were not introduced as witnesses upon the trial. Nor did the defendant file his own affidavit in support of his motion, and it did not appear but what he knew of this evidence at the time of the trial. It was held by this court in State v. McLaughlin, 27 Mo. 111, that by the application it must be shown -First, that the evidence has come to the knowledge of defendant since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is so material that it would probably produce a different result if the new trial were granted; fourth, that the affidavit of the witness himself should be produced, or his absence accounted for; sixth, that the object of the testimony is not merely to impeach the character or credit of a witness. See, also, State v. Welsor (Mo. Sup.) 21 S. W. 443.

No objection has been taken by counsel for the state to the manner of perfecting the bill of exceptions, and of preserving the proceeding on the trial of the cause. We have therefore examined with much care the bill of exceptions as presented to the trial judge, and which he refused to sign, or permit to be filed, together with the affidavits filed by defendant under the statute; and, after having done so, we have been unable to find any error in

the record which would justify a reversal of the judgment. It is therefore affirmed. All

concur.

GANTT, J., concurs. SHERWOOD, J., concurs, except on the point as to the necessity of instruction on good character.

STATE SAV. BANK OF ST. JOSEPH v. BUCK et al. (Supreme Court of Missouri. June 18, 1894.) FRAUDULENT CONVEYANCES-WITHHOLding Deed FROM RECORD-SUBSEQUENT CREDITORS. Absolute deeds given by one banking house to another as security for loans and discounts, and withheld from record for three years, so as not to injure the debtor's credit, are, as a matter of law, fraudulent as to subsequent creditors.

In banc. Appeal from circuit court, Clinton county; James M. Sandusky, Judge.

Action by the State Savings Bank of St. Joseph against Harvey S. Buck and others to foreclose two mortgages. There was a judgment for plaintiff, and defendants appeal. Reversed.

Huston & Parrish, for appellants. Casteel & Haynes, M. A. Reed, Porter & Woodson, and Chas. E. Pratt, for respondent.

BLACK, J. The plaintiff is a banking corporation doing business at the city of St. Joseph. The defendants Harvey S. Buck and Thomas G. McCrosky were partners, and as such carried on a private banking business at Stewartsville, in Dekalb county, having a reported capital in that business of $25,000. They also dealt largely in lands and live stock. In November, 1884, Buck executed, acknowledged, and delivered a deed conveying to plaintiff a parcel of land in Stewartsville for the recited consideration of $9,000; and in November, 1885, he conveyed to the plaintiff another lot in the same place, and also 111 acres of land adjoining the town. The town property so conveyed included the banking house of Buck & McCrosky and a block of buildings known as the opera house property. The lots and land have an estimated value of about $13,000. Though the deeds were absolute in form, they were accepted and held by the plaintiff as collateral security for any advances it might thereafter make to Buck & McCrosky, either by way of loan and overdrafts or rediscounts. The deeds were not recorded until the 6th November, 1887, two and three years after their respective dates. On that day Buck & McCrosky failed; and Buck, who had recently acquired the banking interest of McCrosky, made a voluntary assignment for the benefit of his creditors. On the 7th December, 1887. the defendant King attached the property in suit, and thereafter obtained judgment against Buck & McCrosky for over $12,000. The property was sold under this judgment, and under

a judgment obtained by the defendant Coberly, and another one obtained by Thomas Allen, and King and Coberly and the defendant Ransom became the purchasers. These judgment creditors were all depositors of Buck & McCrosky, and their judgments were recovered upon unpaid deposit accounts. The plaintiff commenced this suit in 1890, to foreclose the two deeds before mentioned, treating them as mortgages, making Buck defendant. King, Ransom, and Coberly were made defendants on their own motion. In their answers they set up title acquired in the manner before stated, and pray for a decree setting aside the deeds on the ground that the deeds were fraudulent as to the creditors of Buck & McCrosky. They make the failure to record the deeds for three years in one case and two years in the other a leading factor in their prayer for affirmative relief.

On

The record discloses the following further facts: From 1882 to the 5th December, 1887. the plaintiff loaned Buck & McCrosky large sums of money, and during that time rediscounted notes which the latter had taken in the course of their banking business. the last-mentioned date Buck & McCrosky owed the plaintiff $78,613. This indebtedness consisted of notes of Buck & McCrosky to the amount of $50,000, an overdraft of $19,363, and rediscounts collected by them to the amount of $9,250. In addition to this indebtedness, the plaintiff held rediscounts to the amount of $50,000, payment of which had been guarantied by Buck & McCrosky. Mr. France, the president of the plaintiff bank, testified that he received a letter from a bank at Kansas City, on the morning of the 5th December, 1887, making inquiry as to the financial standing of McCrosky. He says Buck came to his bank on that day and asked for a further loan. Mr. France then learned for the first time that McCrosky had withdrawn from the firm of Buck & McCrosky. Upon further inquiry, he found Buck was in a failing condition. He refused to make further advances, and demanded a settlement. He and Buck then made a settlement, whereby Mr. France, for his bank, took the following property at the following prices: Maple avenue farm, $22,000; Cowley county land, Kansas, $4,800; Kingman county land, Kansas, $2,500; lot in Stewartsville, $700; McCrosky notes, $42,000; other notes, $3,370. This left a balance of over $3,000 due on the $78,613, which balance was then canceled. The plaintiff still retained the two deeds now in question as security for the rediscounts, amounting to $50,000. The trial court found,-and the finding is not questioned here,-that Buck & Me Crosky were indebted to the plaintiff in the sum of $27,819.71 by reason of the insolvency of the makers of some of the rediscounted notes. After the settlement had been concluded, and on the same day, Buck made the voluntary assignment.

As showing the course of business between the plaintiff and Buck & McCrosky, it may be stated here that at the time of the settlement the plaintiff held deeds for the Maple avenue farm, the Cowley county land, and the Kingman county land. These deeds were out and out conveyances in form, though they had been previously taken and were held as collateral security. They were made absolute conveyances by the terms of the settlement. The McCrosky notes, amounting to $42,000, were notes given to Buck for lands conveyed by him to McCrosky a few days before the settlement. These notes were secured by liens on the lands so purchased by McCrosky. The evidence shows that plaintiff from time to time obtained deeds from Buck & McCrosky, other than the two now in question, which were absolute in form, but taken as security, and were never recorded. They were, however, surrendered, and other security taken in their stead. With respect to the failure to record the two deeds now in dispute, Mr. France testified that there was no agreement that they should not be recorded; that he simply took them and made advances on them whenever he saw fit to do so. On cross-examination he said he did not record them sooner because he did not know Buck was in financial straits; that he believed Buck & McCrosky were honest, and would not sell or incumber the property while he held the deeds. On reexamination he said he did not record them because he relied upon the declarations of Buck & McCrosky that they would not incumber the property without paying off the indebtedness or substituting other collaterals, and for the further reason that to record them would lead to considerable trouble, in this, that he would have to call a meeting of the board of directors to have releases executed. The defendant called L. F. Henry, who testified that he was a depositor with Buck & McCrosky; that after the failure he was appointed one of a committee to look up the condition of the bank affairs; that he saw and had a conversation with Mr. France. He says he told Mr. France he could not understand why the deeds had been kept off the record, to which Mr. France replied: "Well, Buck asked me not to put them on record; that it might injure his business." It appears the defendant King examined the records in the recorder's office of Dekalb county about a month before the assignment, to see what property Buck & McCrosky owned. This examination was made in a hasty way, by running over the index to the deeds and mortgages. He found nothing suspicious, and continued his deposit account. A month or so before the assignment, Coberly became suspicious, and called upon Buck for a statement. Buck said he owned the property now in dispute, the Maple avenue farm, and other lands which he named. With these statements, Coberly let his account, amounting to about $10,000, stand.

King and Coberly knew nothing about the unrecorded deeds held by the plaintiff, but supposed Buck was the owner of the properties thereby conveyed, and of which he at all times had possession. Coberly obtained security, by way of a chattel mortgage, on the evening before the assignment, out of which he realized the sum of $4,800.

From this evidence it cannot be said the deeds were withheld from record for the purpose of injuring or deceiving other persons. It fails to show any fraudulent purpose or evil motive on the part of the plaintiff or Buck & McCrosky. The evidence is conflicting on the issue whether there was an arrangement between plaintiff and Buck & McCrosky to the effect that the deeds were not to be recorded. There is no claim made that the failure to record them was through any oversight or neglect. They were certainly withheld by design, and we cannot escape the conclusion that they were not recorded because of some understanding to that effect. To have recorded them would have placed Buck & McCrosky in an embarrassed situation. The reason assigned by Mr. France to Mr. Henry for not recording them was a good one. There was no agreement that the deeds should be withheld for any specified time, but we feel bound to say there was an understanding that they should not be recorded until Mr. France regarded it necessary to record them, for the protection of his bank. In reaching this conclusion, we lay stress upon circumstances disclosed than we do upon particular expressions used by the witnesses while on the witness stand.

more

The title of a bona fide grantee or mortgagee is good against creditors at large of the grantor or mortgagor, though the deed or mortgage is not recorded. Sappington v. Oeschli, 49 Mo. 247. A person incurs no penalty for a mere failure to record his deeds, save such consequences as are provided for by the recording acts; and the mere failure to record a deed or mortgage is not even evidence of fraud. Indeed, we may go further: There is nothing wrong or fraudulent in an agreement between grantor and grantee to withhold a deed from record, unless the agreement is made to deceive others, or has that effect. But if the delay is the whole or a part of a scheme to hinder, delay, or defraud creditors, the deed will be void as to creditors. Walsh v. Chambers, 13 Mo. App. 309. It was held long ago that "a deed not at first fraudulent may afterwards become so by being concealed, or not pursued, by which means creditors are drawn in to lend their money." Hungerford v. Earle, 2 Vern. 261; Hildreth v. Sands, 2 Johns. Ch. 35. "A deed not at first fraudulent may become so by being concealed, because by its concealment persons may be induced to give credit to the grantor. In such case the use that has been made of it relates back, and shows the intent with which it was made. The omission to place a deed on record, or leaving it in the