assignor. From a decree of specific perform ance, the Planet Property & Financial Company, a creditor of such estate, appeals. Affirmed.

This proceeding was commenced in the probate court of the city of St. Louis, at the June term, 1891, against the estate of William F. Ferguson, deceased, upon the petition of Edward C. Dameron, as assignee, to enforce the specific performance of a contract for the conveyance of real estate by deceased to one William C. Jamison. For a full understanding of the questions of law involved the contract is given in full, and is as follows: "Whereas, Jesse G. Lindell, by his last will and testament, dated January 18th, 1858, and probated in the St. Louis probate court February 9th, 1858, and recorded in Book of Wills F, page 174, devised unto Jesse G. Lindell, Jr., a son of Peter Lindell, 1-36 undivided interest in all of his property, of every nature and kind whatsoever, real, personal, and mixed, subject to the life estate of Jemima Lindell, his widow; and whereas, the said Jesse G. Lindell, Jr., conveyed all of his interest in said estate as aforesaid unto his mother, Ellen Davis' trustee; and whereas, the said Ellen Davis, by her said trustee, by deed of trust dated June 30th, 1874, and recorded in recorder's office of the then county, now city, of St. Louis, in Book 505, page 78, conveyed the said property to Charles Hoyle's trustee, to secure the payment of the notes therein described; and whereas, in pursuance to the said deed of trust on account of the nonpayment of said notes, Geo. W. Cline, trustee in said deed of trust, sold the said property at public auction on the 23rd day of December, 1879, and at said sale William F. Ferguson purchased a portion of said property, and by deed dated December 23, 1879, acknowledged January 26, 1880, before Dorsey A. Jamison, the said George W. Cline, trustee in said deed of trust, conveyed unto said William F. Ferguson the said property purchased by him as aforesaid, and reference is here made to said deed for a more particular description of said property, and the said deed is here made a part hereof; and whereas, a portion of said notes described in said deed of trust were owned by William C. Jamison and the note for ten thousand dollars was owned by said William F. Ferguson: Now, therefore, for and in consideration of the premises, and for value received, it is hereby mutually covenanted and agreed by and between William F. Ferguson, party of the first part, and William C. Jamison. party of the second part, that said party of the first part will hold said property as security for the said ten thousand dollars and interest thereon from and after January 1st, 1880, at the rate of eight per cent. per annum, payable semiannually, and when the said ten thousand dollars shall be paid, and the interest as aforesaid shall be paid, then the said party of the first part will convey

to the said party of the second part the said real and personal estate, or to such person as the said party of the second part shall direct; that, after the payment of said ten thousand dollars and interest as aforesaid, the said party of the second part shall be the owner and entitled to a conveyance of the said property conveyed to said party of the first part by said trustee as aforesaid, that the said party of the second part will pay the said interest as aforesaid when it becomes due as aforesaid. Witness our hands and seals on this twenty-third day of December, eighteen hundred and seventynine. William F. Ferguson. [Seal.] William C. Jamison. [Seal.]" The indorsements on this contract showed that semiannual payments of $400 each were made by Jamison July 14, 1880, February 25, 1881, March 18, 1882, July 27, 1882, February 23, 1883; and on the 25th day of July, 1881, a small portion of the land was released in part payment of an installment of interest. After a hearing, the probate court ordered the ad ministrator to make to the said Dameron a deed to the property, in execution of the contract, and the appellant, who was a creditor of the said Ferguson, appealed to the circuit court. Upon a trial in that court the following facts were developed: By the will of Jesse G. Lindell, made in 1858, one thirtysixth interest in his estate was devised to Jesse Lindell, subject to the life estate of the widow of the testator. On the 27th day of June, 1874, Jesse Lindell conveyed the property to William C. Jamison, as trustee for Ellen Davis. On June 30, 1874, Jamison, as trustee, conveyed the property to George W. Cline, as trustee, to secure a note for $10,000, dated on that day, and payable three years after date, and six semiannual interest notes for $500 each, the last one maturing 36 months after date. On the 23d day of December, 1879, the land was sold by Cline, as trustee, under a power contained in the deed of trust, and Ferguson became the purchaser for $9,705, and a deed was made to him, and on the same day the contract in question was made between Jamison and Ferguson. Ferguson died in September, 1883, and his administrator is a party. On August 6, 1884, Jamison, being insolvent, by deed acknowledged and delivered, in consideration of $1,000 assigned said contract to Logan D. Dameron. In February, 1886, the administrator of Ferguson undertook to sell the property for the payment of debts. but, owing to notice by Dameron of his claims under the contract, the sale was not perfected. About this time there were some efforts looking to a settlement between Dameron and the administrator, which were without results. In November, 1890, Dameron made a tender to the administrator of the amount due on the note, calculating it with simple interest. The tender was declined. On the 11th of April, 1891, Logan D. Dameron assigned the contract to his son E. C.

Dameron. On that day E. C. Dameron and the administrator of Ferguson entered into a contract by which it was agreed that Dameron should present to the probate court his petition for an order authorizing the administrator to make him a deed under said contract, and, if an order was made, the said Dameron agreed to pay, within 10 days thereafter, the amount due on the note at 8 per cent. interest per annum from January 1, 1883. In consideration of this contract, Dameron paid the administrator $1,000, which was in addition to the note. The administrator agreed to make a deed in pursuance of the order if obtained. In pursuance of this agreement these proceedings were commenced. It appeared from the evidence that between the death of Ferguson, in 1883, and the date of the tender, in 1890, the property had increased in value 100 per cent. or more. Ferguson's estate is insolvent, and appellant is a large creditor thereof. The trial in the circuit court resulted in an approval of the action of the probate court, and an order in accordance therewith was made, and the said financial company appealed.

T. J. Rowe and J. M. Holmes, for appellant. John D. Davis, for respondent.

MACFARLANE, J. (after stating the facts). 1. The original rights of the parties must be determined from the contract itself, and in the light of the facts therein recited. The recitals, together with the will and deeds referred to, make up a very complete history of the various transactions which led to making the contract, and show very clearly the circumstances under which it was made. The devisee of the property conveyed it to a trustee, for the use of his mother, Ellen Davis. The trustee was William C. Jamison, one of the parties to the subsequent contract. Within six days after the execution of this deed, Jamison, as trustee, made a deed of trust on the property to secure a note for $10,000 and six interest notes for $500 each. The deed of trust was made for the benefit of Charles Hoyle, from which we may infer that the notes were made payable to him. The notes were dated June 30, 1874, but it does not appear what interest they bore after maturity. Default was made in the payment of the notes, and the property was sold December 23d, two and a half years after maturity. There was then due on the principal note, if no interest had been paid, $11,500, calculating interest at 6 per cent. A portion of the notes was held by Jamison, and it is not at all probable that Mrs. Davis paid any interest on the principal note. The sale under a deed of trust, and the contract in question, are dated on the same day, and must have been a part of the same transaction. Ferguson then held the original note for the sum of $10,000. Jamison held whatever balance was unpaid on the principal and interest notes. Under these facts the contract was

made. Ferguson declares in the contract that he holds the title as security for the $10,000 and interest thereon from and after January 1, 1880, at 8 per cent., payable semiannually. I think there can be no doubt that this agreement was made prior to and in contemplation of the sale, and that the intention was that Ferguson should hold the legal title in trust, to be conveyed to Jamison or his assigns upon payment of the stipulated sum and interest. The deed of trust, under which the sale was made, secured what was due to Jamison, as well as the amount due to Ferguson, and the sale and purchase were evidently made for their mutual protection. Indeed, the interest notes held by Jamison first maturing were entitled to precedence of payment, in the absence of stipulations to the contrary. The rule is that notes secured by mortgage should be paid in the order in which they mature, notwithstanding all are due when the sale is made. Thompson v. Field, 38 Mo. 325; Mitchell v. Ladew, 36 Mo. 526; Hurck v. Erskine, 45 Mo. 486. Had the purchase been made by Ferguson by agreement with Jamison, a resulting trust would have arisen in favor of Jamison in proportion to the amount his debt bore to that of Ferguson. As is said, a "resulting trust will arise in favor of the parties not named in the conveyance in proportion to the amount of the consideration which they may have respectively contributed." Hill, Trustees, 92; Baumgartner v. Guessfeld, 38 Mo. 41, and cases cited. The parties here did not depend upon a mere resulting trust, but by their writing declared an express trust, and the terms of it are not left in doubt. The title was taken by Ferguson, to be held as security for his debt. All matters of precedence, and the respective rights of the parties, under the original mortgage, were adjusted and settled. The entire property was thereunder held to secure the single debt of $10,000.

2. It is true, as claimed, that specific execution of a contract in equity is a matter not of absolute right in the party, but of sound discretion in the court, and "it requires a much less strength of case on the part of a defendant to resist a bill to perform a contract than it does on the part of a plaintiff to maintain a bill to enforce a specific performance." Veth v. Gierth, 92 Mo. 104, 4 S. W. 432. Without considering what the effect of this rule might have been had this been a mere contract for a sale of the land, we do not think the same principle applies to the right to enforce such a trust or equity as is here declared. "Courts of equity, from their inherent jurisdiction, assumed from the beginning the exclusive control over trustees in the discharge of their duties, whether affecting personal or real estate." Hill, Trustees, 42 (66); 1 Story, Eq. 102, § 98. This contract also, in its provision for the security of a debt, stands more in the nature of an equitable mortgage than that of a sim

ple contract of sale. The law provides no adequate remedy for a refusal to execute such a trust as this, as it does in case of a simple breach of contract of sale. Veth v. Gierth, supra; 2 Story, Eq. 769.

The conJami

tract itself seems to be perfectly fair. son had a substantial equity in the property prior to the trustee's sale. He paid on the contract $2,400 in interest. In any view in which it may be taken, the case is clearly one for equitable cognizance, and does not rest on the mere discretion of the court. Though the contract is in the nature of a trust, yet Ferguson, the intestate, agrees to convey the property upon a full payment of the debt and interest; and we think it a contract for the conveyance of real estate, which the probate court had jurisdiction to hear and determine. Rev. St. § 172.

3. It is insisted that the contract is entirely unilateral, and should not be enforced in equity for want of mutuality of obligation. We think there was no want of mutuality in the contract, even on the assumption that its absence would have prevented a court of equity from taking cognizance of the case. It was signed by both parties, and Ferguson agreed to convey when the specified debt and principal should be paid. While Jamison did not, in express terms, make himself liable for the principal debt, Ferguson had the undoubted right to foreclose the equity upon default in payment of interest installments when due, or of the principal if not paid within a reasonable time after demand. Each party had an adequate remedy under the contract, and it was mutually binding upon each, and enforceable in equity. Mastin v. Grimes, 88 Mo. 484.

4. It is further said that the delay of Jamison and his assignees in applying for relief, and the length of time they have been in de fault in payment of interest, are sufficient to bar the right of action. There is no doubt of the principle that "a court of equity will refuse relief where the party has slept upon his rights for an unreasonable length of time, and this, too, without regard to the statutes of limitations. Kroening v. Goehri, 112 Mo. 648. On the subject of laches no artificial rule has been or can be adopted. Each case must be determined upon its own circumstan

ces.

Bliss v. Prichard, 67 Mo. 186. Taking the circumstances of this case, in connection with the contract, we cannot say that the right to enforce the contract should be denied on account of the delay in seeking its enforcement, or in the default in making the required payments. In the first place, time is not made of the essence of the contract, but, on the contrary, great latitude is given. The payments of interest were made with regularity until about the time of the death of Ferguson. While there is no proof of tender to the administrator prior to 1890, it is manifest that the rights of Jamison's assignees under the contract were not recognized by him. An attempt was made in 1886 to sell

the land for the payment of debts of the estate, and the sale was resisted by the assignee of the contract. The administrator made no effort to enforce the lien or collect interest, so far as appears. The failure to pay the interest after Ferguson's death may have resulted from doubt or uncertainty as to the proper person to whom payments should be made. It should be kept in mind also that the life tenant was living all this time, and held possession of the property. None of the parties to the contract, their representatives or assigns, were receiving any benefit from it. At what time they would have the possession and enjoyment depended upon the contingency of the life of the widow of Jesse G. Lindell. There was, therefore, no such necessity for pressing for a deed that might have been required had the right of possession depended upon holding the legal title. It is true that between the death of Ferguson, in 1883, and the filing of the petition for specific performance, in 1891, there was a great increase in the value of the land, and that circumstance should have weight in determining the question of laches. "A purchaser should not be allowed to remain passive, prepared to affirm a transaction if the concern should prosper, or to repudiate it if it should prove to his advantage." Bliss v. Prichard, supra. But this does not appear to be a contract of such a speculative nature as to require the application of that rule. It does not appear that there was any prospective increase in the value of the land when the contract was made. The increase in value came years after. The delay in this case was much short of the statutes of limitation, but we see nothing in the circumstances that would make it inequitable to grant the relief. The petitioner has at all times asserted his rights, and a waiver or abandonment cannot be implied. Judgment affirmed. All concur.

NICHOLDS V. CRYSTAL PLATE-GLASS
CO.
(Supreme Court of Missouri, Division No. 1.
June 19, 1894.)

MASTER AND SERVANT-CONTRIBUTORY NEGLI-
GENCE-DAMAGES.

1. Plaintiff was foreman of a blacksmith shop attached to a large manufacturing plant. He had to keep his own tools in repair, but there was a master mechanic having supervi sion of the machines and appliances. Plaintiff procured a crane to lift heavy weights at his forge, and, on the master mechanic's order, the machine-shop foreman gave him a chain that had been used for a sling chain. Plaintiff was not directed to inspect the chain. He used it 18 months, without noticing any defects, and then, in some especially heavy work, it broke, and plaintiff was hurt. The defect was one that would have been obvious to any competent inspection. Held, that whether plaintiff was charged with the duty of inspection, or should in reason have known of the defect, were questicns for the jury.

2. Whether plaintiff was using the chain properly, it being conceded that the weight could have been raised on trusses, was a question for the jury.

3. A servant assumes no risk of a latent defect in a crane chain, not discoverable in the ordinary and proper use of the chain.

4. The bones of plaintiff's ankle were broken. He was kept in four weeks, used crutches five or six months, and then iron braces and a cork-soled shoe. He had been earning $75 to $90 a month, and lost eight months' time; then began at half pay; and at the time of trial was earning about as much as before. The strength of his leg was permanently impaired. He had had no expenses for medical attendance. Held, that he should be required to remit $3.666 of his verdict for $8,666.

5. The supreme court, having power to declare damages for personal injuries excessive, may also determine the amount of the excess, and allow plaintiff to remit such amount.

Barclay, J., dissenting.

Appeal from circuit court, Iron county; James D. Fox, Judge.

Action by James F. Nicholds against the Crystal Plate-Glass Company for damages for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed nisi rem. dam.

E. T. & C. B. Allen, for appellant. C. P. & J. D. Johnson, for respondent.

BLACK, C. J. This is a personal damage suit, in which the plaintiff obtained a verdict and judgment, from which the defendant appealed. The principal alleged errors are: (1) There is no evidence of negligence on the part of the defendant. (2) The plaintiff was guilty of contributory negligence, and the court should have so declared as a matter of law. (3) The injury was caused by one of those risks which the plaintiff assumed. (4) Plaintiff ought not to recover, because he was defendant's vice principal. (5) Errors in giving and refusing to give instructions. (6) The damages are excessive.

The defendant is a corporation engaged in carrying on extensive glass works. In connection with the works, and as a part thereof, the defendant maintains a machine shop and a blacksmith shop. At and prior to the time of the accident in question, there were two forges in the blacksmith shop,-one in charge of Witchell, who had one helper; and the other in charge of the plaintiff, who had three and sometimes four helpers. The difficult jobs of work were sent to the plaintiff. It was his business to dress the pot tongs. They were heavy, and, it seems, he complained that he could not handle them. This was about 18 months before the accident now in question. He asked the then master mechanic to have an iron crane placed at his forge. The iron crane was not furnished; but the master mechanic directed the boss carpenter to erect a wooden one. After the crane had been erected, the plaintiff called on the master mechanic for a pair of chain blocks, who said he could not go to that expense. He at the same time told the plaintiff to go to Davis, foreman of the

machine shop, and Davis would give him a chain. He saw Davis, who got a chain and sheave, and threw them down on the blacksmith-shop floor, saying to plaintiff: "Use that, that is what we have used for a sling chain." The chain was composed of some 20 or more links, and worked in the sheave. to which there was attached a hook and swivel. The hook was then attached to another apparatus, which extended up to the traveler on the top of the boom of the crane. The crane, thus rigged, was used for various kinds of work during the 18 months. On the day of the accident, Mr. Prentice, foreman of the machine shop, directed plaintiff to make some dies for the trip hammer out of a steel shaft, which was 5 inches in diameter and some 18 feet long. The plaintiff and his helpers rolled the shaft up to the forge, heated it, and cut it in two. They then began work on one-half, which was some six or eight feet long. One end rested in the chain before described, and the helpers carried the other end from the forge to the anvil. At the time of the accident, one end rested in the chain, and the other on the anvil. The plaintiff occupied a position about midway between the anvil and the chain, and was moving the shaft by the aid of a clamp, and at the same time gave the helpers directions where to apply their sledges. While in this position, one link of the chain broke, and the shaft fell upon the plaintiff's ankle, inflicting the injuries of which he complains. The substantial averments of the amended petition are that the chain broke because the links had become "fractured, corroded, and impaired in strength by use, exposure, and time," and, by reason thereof, the chain "was insufficient in strength for the purposes for which it was then and there being used;" that defendant knew, or by the exercise of ordinary care might have known, the "fractured, corroded, and impaired condition and insufficiency in strength of said link, but, nevertheless, negligently failed to remove or repair the same, or replace it with a safe and sound link." The answer denies negligence on the part of the defendant, and avers that plaintiff "was in charge and had full control over the workshop in which he worked, and all the tools and appliances thereof, including the crane and chain mentioned in said amended petition; that the plaintiff negligently selected the said chain and crane for use in the work he was employed, and negligently used the same; that such negligence of the plaintiff directly contributed to any injury sus tained by him."

The evidence shows that the broken link had an old corroded crack in it at the place where it broke, extending more than halfway through the iron. Plaintiff testified that, when Davis gave him the chain, which was 18 months before the accident, it was in the sheave, was greasy, and had been used by the smoothers, the grinders, and polishers;