(1) The plaintiff neither stated a cause of action in its petition nor proved a case on the trial and the court erred in not sustaining defendant's demurrer to the evidence and in not rendering judgment for the defendant. Sec. 926, R.S. Mo. 1939; Walker v. Roth, 230 Mo. App. 379, 71 S.W.2d 124; City v. Railway Co., 330 Mo. 499, 50 S.W.2d 637; Pickering v. Hartsock, 221 Mo. App. 868, 287 S.W. 819; Croghan v. Savings Trust Co., 85 S.W.2d 239, 231 Mo. App. 1161; State ex rel. Central State Life Ins. Co. v. McElhinney, 90 S.W.2d 124, 232 Mo. App. 107; John Deere Plow Co. v. Cooper, 91 S.W.2d 145, 230 Mo. App. 167; National Surety Co. v. Roth, 232 S.W. 736; Southern Real Estate, etc., v. Banker's Surety Co., 184 S.W. 1030; Citizen's Trust Co. v. Tindle, 199 S.W. 1025, 272 Mo. 681; Harris v. Taylor et al., 129 S.W. 995, 150 Mo. App. 291; Lange v. Freeman, 13 S.W.2d 1092; State ex rel. Zimmerman v. Schaper et al., 134 S.W. 671, 152 Mo. App. 538; Cochrane et al. v. Stewart et al., 63 Mo. 426; Steckdaub v. Wilhite, 211 S.W. 915; Hurst v. Randall et al., 68 Mo. App. 507; Smith v. Warren, 88 Mo. App. 285; Central States Grain Co-Operative, Inc., v. Nashville Warehouse Elevator Corporation et al., 48 F.2d 138; Howell v. Commissioner of Internal Revenue, 69 F.2d 447; Union Indemnity Co. v. Vetter, 40 F.2d 606; American Jurisprudence, Vol. 27, Sec. 21, p. 457; Maloney v. Nelson et al., 39 N.E. 82; Most v. Massachusetts Bonding Ins. Co. et al., 196 S.
If, on the other hand, as observed by the lower court, the transaction should be construed as a loan of $276,000 to Mays, it would be illegal because the laws of Missouri prohibit a loan to one individual by a trust company in excess of 15 per cent. of its capital and surplus. Such a purpose should not be imputed to the Trust Company. Sebastian County Coal Min. Co. v. Mayer, 310 Mo. 104, 274 S.W. 770; Robertson v. Johnson, 210 Mo.App. 585, 243 S.W. 215; Croghan v. Savings Trust Company (Mo.App.) 85 S.W.2d 239. We conclude that the record abundantly sustains the finding of the lower court that appellant was the real owner of this stock.
We further note that there exists, generally, a presumption that acts have been performed in good faith and rightfully, as opposed to any presumption of fraud, misconduct or illegality. Bradshaw v. Metropolitan Life Ins. Co., Mo.App., 110 S.W.2d 834; Croghan v. Savings Trust Co., 231 Mo.App. 1161, 85 S.W.2d 239; State ex rel. Douglas v. Reynolds, 276 Mo. 688, 209 S.W. 100; Sebastian Coal Mining Co. v. Mayer, 310 Mo. 104, 274 S.W. 770; 31 C.J.S. Evidence § 126. In considering the application of our school laws we must remember the repeated and universal expressions of our courts to the effect that they are to be interpreted liberally, and that substantial compliance with the statutes is sufficient, for generally these laws are administered by laymen.
Fulkerson v. Great Lakes Pipe Line Co., 60 S.W.2d 71. (8) For the purpose of determining the intention of the parties and reaching a construction that is fair and reasonable under all the facts and circumstances, the court may consider the relationship of the parties, the subject matter of the contract, the usages of the business, the surrounding facts and circumstances attending the execution of the contract and its interpretation by the parties. Paisley v. Lucas, 143 S.W.2d 262. (9) If a contract is susceptible to different constructions, it should be construed most strongly against the party who prepared and handed it out to those with whom it was dealing, particularly to those unacquainted with the business in hand. Groghen v. Savings Trust Co., 85 S.W.2d 239. (10) Although it is an elementary rule that parol evidence is inadmissible to vary, add to, take from, or contradict the terms of a written contract, it does not preclude the consideration of parol or extrinsic evidence for the purposes of aiding in the construction of the contract in case of ambiguity in its terms. Baptiste Tent Awning Co. v. Uhri, 129 S.W.2d 9. (11) The court was in error in affirming the referee's finding and allowing plaintiff's charges for items of the account which by their very nature were not labor or material actually part of the construction of the building; all specifically excepted to in the exceptions filed by defendant.
iott, 157 Mo. 609, 57 S.W. 1081; Fullerton Lumber Co. v. Calhoun, 89 Mo. App. 209; Godfrey v. Kansas City L. P. Co., 247 S.W. 451; Lange v. Freeman, 13 S.W.2d 1092; Cochrane v. Stewart, 63 Mo. 426; Hurst v. Randall, 68 Mo. App. 507; Smith v. Warren, 88 Mo. App. 285; Central States Grain Co-Operative, Inc., v. Nashville Warehouse Elevator Corp., 48 F.2d 138; Howell v. Commissioner of Internal Revenue, 69 F.2d 447; Union Indemnity Co. v. Vetter, 40 F.2d 606; 27 Am. Jur., sec. 21, p. 457; Maloney v. Nelson, 39 N.E. 82; Conqueror Zinc Lead Co. v. Aetna Life Ins. Co., 133 S.W. 156; State ex rel. Western Automobile Ins. Co. v. Trimble, 249 S.W. 902; Staggs v. Gatham Min. Mill. Co., 235 S.W. 511; Central States v. Nashville W. E. Corp., 42 F.2d 138; State v. Cordaro, 241 N.W. 448; 31 C.J. 431; Title Guaranty, etc., Co. v. Turnes, 183 Ill. App. 23; 31 C.J. 437; State ex rel. Phillips v. Green, 112 Mo. 108, 90 S.W. 403; Burrus v. Continental Life Ins. Co., 225 Mo. App. 1129, 40 S.W.2d 493; Croghan v. Savs. Trust Co., 231 Mo. App. 1161, 85 S.W.2d 239; State ex rel. Central States Life Ins. Co. v. McElhinney, 232 Mo. App. 107, 90 S.W.2d 124; John Deere Plow Co. v. Cooper, 230 Mo. App. 167, 91 S.W.2d 145; Beers v. Strimple, 116 Mo. 179, 22 S.W. 620; Nofsinger v. Hartnett, 84 Mo. 552; Trust Co. v. Tindle, 272 Mo. 681, 199 S.W. 1025; Southern Real Estate Finance Co. v. Banker's Surety Co., 273 Mo. 293, 184 S.W. 1030; Adel v. Dalton, 341 Mo. 454, 107 S.W.2d 1071; Gillen v. Bayfield, 329 Mo. 681, 46 S.W.2d 571; LaClede Construction Co. v. Tudor Iron Works, 169 Mo. 137, 69 S.W. 384; Cal Hirsch Sons Iron Rail Co. v. Paragould M.R. Co., 148 Mo. App. 173, 127 S.W. 623; Malloy v. Egyptian Tie Timber Co., 207 Mo. App. 465, 247 S.W. 467; 13 C.J., pp. 326, 339. Illinois Fuel Co. v. M. O. Railway Co., 8 S.W.2d 843; Hartford Accident Indemnity Co. v. Delta Pine Land Co., 169 Miss. 196, 150 So. 205; Solace v. T.J. Moss Tie Co., 142 S.W.2d 1079; School Dist. of St. Joseph v. Security Bank of St. Joseph, 325 Mo. 1, 26 S.W.2d 785; State ex r
Having been drawn by the railroad, the language used must be construed most strongly against appellant and in favor of respondent, and in view of the surrounding circumstances there was no meeting of minds that the clearance provisions were to apply within the elevator tunnel. Groghan v. Savings Trust Co., 231 Mo. App. 1161, 85 S.W.2d 239; John Deere Plow Co. v. Gooch, 230 Mo. App. 167, 91 S.W.2d 145; Sanders v. Sheets, 287 S.W. 1069; 12 Am. Juris. 557, Contracts, sec. 65. (2) A contract will not be construed so as to require one of the parties to perform an impossibility. Am. Jur., Contracts, secs. 115, 363.
ols the interpretation to be given to the instrument and the trial court erred in not so ruling. This is true both under our Negotiable Instruments Law and under the Law Merchant. Sec. 3033, R.S. 1939; 7 Am. Jur., p. 816, sec. 52; Summers v. Hibbard, 153 Ill. 102, 46 Am. St. Rep. 872; McReynolds v. Mtge. Acceptance Corp., 13 F.2d 313; Whittier v. First Natl. Bank, 73 Colo. Sup. 153; Acme Coal Co. v. Northrup Natl. Bank, 23 Wyo. 66, L.R.A. 1915D, 1084; First Nat. Bank v. Greenlee, L.R.A. 1918D, 224; Smith v. Williams, 15 Tenn. App. 613 . (5) In case of doubt or uncertainty as to the meaning of a note or pledge agreement prepared by the pledgee, the instrument will be construed strictly against the pledgee and in favor of the pledgor. 49 C.J. 920, sec. 51; 17 C.J.S. 751-754, sec. 324; Dibert v. D'Arcy, 248 Mo. 617; State ex rel. Shull v. Liberty Bank, 331 Mo. 386, 53 S.W.2d 899; Hornsby v. Knorp, 207 Mo. App. 302, 232 S.W. 776; Garrett v. Bank of Chelsea, 211 Mo. App. 238, 241 S.W. 87; Croghan v. Savings Trust Co., 85 S.W.2d 239; Gillet v. Bank, 160 N.Y. 549; Van Sandt v. Hanover Natl. Bank, 129 F. 127; Hanover Natl. Bank v. Suddath, 215 U.S. 110. (6) In case of ambiguity in the terms of a written instrument, parol evidence is admissible to prove the real intent of the parties, and the court erred in sustaining the plaintiff's motions to strike out the testimony of the defendant company's president, E.A. Kieselhorst. Bank of Commerce v. Flanagan, 268 Mo. 547; Haseltine v. Farmers Mutual, 240 S.W. l.c. 817; Baptiste Tent Awning Co. v. Uhri, 129 S.W.2d 9; Finch v. Heeb, 231 Mo. App. 591, 107 S.W.2d 962; Bertig Smythe v. Bonsack Lbr. Co., 112 Mo. App. 259; Scholbe v. Schuchardt, 292 Ill. 527, 13 A.L.R. 247. (7) Even if the clause "Due October 15, 1932," be ignored, the note was not by its terms a demand note, but a six months' note, subject to a prior demand. Brown v. Maguire, 101 S.W.2d 41; Boyd v. Buchanan, 176 Mo. App. 56; Shapleigh Hdw. Co. v. Spiro, 141 Miss. 38, 44 A.L.R. 393. (a) If it was such a note, w
ntents, and plaintiff is not permitted to show that what is a complete pledge agreement upon its face was in fact intended as an equitable mortgage. Carter v. Holman, 60 Mo. 498; Jamison v. Wells, 7 S.W.2d 347. (4) Plaintiff cannot be permitted by parol to make out of the collateral pledge contract an agreement for a mortgage which would convey, or effect an interest in, land, as this would be, in contravention of the statute of frauds. Sec. 3354, R.S. 1939; Sleeth v. Sampson, 142 N.E. 355, 237 N.Y. 69, 30 A.L.R. 1400; Shy v. Lewis, 12 S.W.2d 719, 321 Mo. 688; Davis v. Holloway, 295 S.W. 105, 317 Mo. 246; Rosenberger v. Jones, 24 S.W. 203, 118 Mo. 559. (5) A pledge agreement relates to and deals exclusively with personal property, and, having prepared and used that form of agreement, the plaintiff cannot vary or contradict its own handiwork and now contend the collateral pledge contract covers real estate and creates an equitable mortgage. 49 C.J. 895; Jones on Liens (3 Ed.), sec. 11; Crooghan v. Savings Trust Co., 85 S.W.2d 239, 231 Mo. App. 1161. (6) It is admitted in the record that the Phoenix Mutual gave no consideration to Miss Goedecke for the note and deed of trust, and, since there was no endorsement or transfer of the note to the plaintiff, the plaintiff could not derive any right or benefit therefrom because the deed of trust could not, in and of itself, apart from the note, be assigned.
" In More v. Western Connecticut Title Mortgage Co., 128 Conn. 360, 23 A.2d 128 (1941), the court concluded that where a mortgage company took a mortgage on real estate and issued participation certificates, each "certificate holder under these agreements was not buying merely an obligation of the company to pay him certain sums of money secured by collateral, but was purchasing a share in certain definite property owned by the company. . . ." Accord Board of County Commissioners v. Cook, 141 Kan. 677, 42 P.2d 668 (1935), and Croghan v. Savings Trust Co., 231 Mo. App. 1161, 85 S.W.2d 239 (1935). While Smith's banking sophistication may not constitute an estoppel to the prosecution of the usury action against Sun Bank, he cannot argue that he was innocently lured into participating in a usurious loan.
In other words, it is the respondent's contention that the terms of the limitation of liability clause apply only to the contents of containers or packages where the contents of the containers or packages are unknown to the warehouseman and listed as packages or containers on the schedule. The plaintiff urges that since the defendant drafted the receipt any ambiguity must be resolved against it. The generally accepted rule is that if a contract is fairly open to two interpretations that construction must be adopted which is against him who prepared it and favor him who merely signed it. Leathers v. Metalcraft Mfg. Sales Corp., Mo.App., 240 S.W.2d 211; Croghan v. Savings Trust Co., 231 Mo.App. 1161, 85 S.W.2d 239; Burrus v. Continental Life Ins. Co., 225 Mo.App. 1129, 40 S.W.2d 493. An essential part of this rule is that the contract must be reasonably and fairly susceptible to different constructions before it can be held to be ambiguous. State ex rel. National Life Ins. Co. v. Allen, 301 Mo. 631, 256 S.W. 737. The rule therefore is only one of a number of subsidiary aids and has no place as a rule of construction when the contract is plain. City of St. Louis v. St. Louis S. F. R. Co., 228 Mo. 712, loc. cit. 736, 129 S.W. 691.