the latter to Mrs. Satchwell, who, according to some of the witnesses, expressed dissatisfaction, but put the certificate under her pillow, and retained it. After Mrs. Satchwell's death the money was claimed for the children and by Mrs. Philbin, with the result that the present suit was instituted, and the rival claimants ordered to interplead. A guardian ad litem was appointed for the minor children, and an interplea in behalf of them and the adults filed, in which the erasure of the designated beneficiaries from the mother's request, the insertion of the grandmother's name, and the subsequent delivery of the new certificate were alleged to be contrary to the intention of the mother and the by-laws of the order, and hence void acts. Mrs. McCormack did not contest Mrs. Philbin's right. Catherina Philbin's interplea avers that the deceased directed Flannery to have said Catherina's name inserted as beneficiary, and a certificate issued to her. Flannery says he told Mrs. Satchwell that was the only way the fund could be kept out of court. The idea seems to have been that Mrs. Philbin would be the guardian of the children after the mother's death, and, as such, entitled to the money, but would hand it over, as soon as received, to Mrs. McCormack, to manage for the children. Flannery testified that while Mrs. Satchwell was awaiting the return of the certificate from the grand lodge, to which it had been transmitted for the change of beneficiaries to be made, she became uneasy on account of the delay, and asked him to see about the certificate. He ascertained the obstacle in the way of making Mrs. McCormack beneficiary, and reported to Mrs. Satchwell, who then authorized him to have the certificate made payable to her mother, Catherina Philbin; and by his authority the grand recorder erased the names originally written in the request, inserted Mrs. Philbin's, and issued a new certificate to the latter. The circuit court entered judgment that the fund be paid to Mrs. Philbin.

The main proposition advanced in favor of the appellants is that the issuance of the new certificate, with Mrs. Philbin's name as beneficiary, was unauthorized by the insured, and was not done in compliance with the laws of the order. Whether or not Mrs. Satchwell authorized it was a question of fact, and we will not interfere with the finding of the court below, which is supported by the evidence. It is certain that Mrs. Satchwell, after she knew her mother had been designated as the payee of the new cer. tificate, accepted the document, and kept it until her death without protest, though not without anxiety. The substance of what she said was that she had been greatly worried about whom to make beneficiary.

It is true, the by-law providing for a change of beneficiaries was not literally complied with, as Mrs. Satchwell never signed

the request to make her mother beneficiary....... nor was a request in that form attested by the recorder of the local lodge. As we in-tend to treat the children of the deceased asthe real beneficiaries of the certificate, and. Mrs. Philbin as trustee for them, there is no · necessity for deciding whether or not the arder waived the prescribed formalities for the designation of a new beneficiary by issuing: a certificate to Mrs. Philbin. Under our decision, the new beneficiary took no substan- tial personal interest; and, if the circuit court erred in holding she was properly desig nated, the error will become harmless if sheis treated as trustee for the children. Netertheless we are not satisfied with the judg-ment. This case is of an equitable nature... and calls for a decree carrying out the inter-tion of Mrs. Satchwell, and doing complete justice to all the parties in interest as far as possible. Concerning one fact the wit-nesses agree, and that is that Mrs. Satel well intended this benefit fund should be used to pay her debts to an amount not exceeding $400, and the remainder go to her children. She wished to give no part of it: to Mrs. Philbin or Mrs. McCormack absolute-ly, but only in trust. While we are satished with the finding that Mrs. Philbin was intended as the beneficiary, and that no fraud: was committed in order to have her desig nated, we are not satisfied with a decree turning the money over to her without pro- viding that she shall hold it in trust for the children. The designation of creditors as beneficiaries is repugnant to the by-laws of the order, and must be taken as so far a fail ure to designate; that is, to the extent of $400. In default of a designated beneficiary, the children take in the first place. So they are entitled to the entire fund. Further more, the evidence shows that Mrs. Philbin is a very old woman, paralyzed, and wholly incompetent to attend to her own affairs. Flannery swore he was looking after her business. She is not a suitable person to trust with the fund, without a bond. Be think the judgment ought to be reversed, in order that the decree may fix on a proper person to take the fund in trust, and dispose of it according to the wish of Mrs. Satelowell If there was any controversy about the eapacity in which it was intended Mrs. PMI-bin should have it, the propriety of such a decree might be questionable. But every-body who testified about the matter concur red in saying that Mrs. Satchwell's onethought was for the money to go to her ered-itors to the amount stated, and afterwards to her children. We feel that the paranUOTUT duty of a court of equity is to see that this purpose is accomplished, to the extent the by-laws permit, when every interested party is before it, and all rights can be protected.. The money ought not to be ordered into thehands of a helpless trustee, to be turned over to Mrs. McCormack, who is no trustee. It is

mportant that some one have it who can take care of it, and especially important that a bond be required.

The judgment, therefore, is reversed, and the cause remanded, with directions to the court below to hear further evidence, if it desires, and dispose of the fund so that the children of the deceased will be sure to get the benefit of it. All concur.

HELMERS, BETTMAN & CO. v. A. NAGEL & CO.*

St. Louis Court of Appeals. Missouri. April 4, 1905.)

STATUTE OF FRAUDS-ORDER FOR GOODS.

Defendants ordered from plaintiffs' traveling salesman a bill of shoes to be manufactured by plaintiffs of the price of more than $30. The salesman made a copy of the order, which be signed, and gave to defendants. While the goods were being manufactured defendants countermanded a portion of the order, and, on plaintils refusing to permit this, defendants refused to accept the shoes on delivery. Held, that the contract was for the sale of goods, wares, and merchandise, and not for work, labor, and serviers and was therefore within the statute of Vrauds.

E Note. For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, §§ 148, 151.]

Appeal from Circuit Court, Audrain County; Houston W. Johnson, Judge.

Action by Helmers, Bettman & Co. against A Nagel & Co. From a judgment for deJewlants, plaintiffs appeal. Affirmed.

W. W. Botts, for appellants. John S. Gashand P. H. Cullen, for respondents.

Opinion.

GOODE, J. The petition recites that on about the 2d day of October, 1903, plaints, a firm of shoe manufacturers in Cininnati, Ohio, entered into a contract with the defendants, merchants in Vandalia, Mo., far work and labor to be done and materials fo be furnished by plaintiffs for the defendants during the time between October 2, 123, and February 1, 1904, for which defendants agreed to pay the sum of $361.20; that said work and labor to be done and materials to be furnished consisted in furwishing the materials for and making for defendants, according to specifications and drections. 138 pairs of shoes, and properly boxing and shipping said shoes when made to said defendants; that the plaintiffs furnished the materials and performed the work agreed on in the manner and time agreed, and the same were reasonably worth the sum of $361.20, for which judgment was prayed.

The answer. besides a general denial, pleads as a further defense that the defendants entered into a verbal agreement with a

Rehearing denied April 18, 1905.

traveling salesman of plaintiffs' firm by which agreement defendants, in October, 1903, agreed to purchase from plaintiffs a bill of shoes to be delivered January 1, 1904; that the value of said shoes exceeded $30, and no note or memorandum in writing was made thereof and signed by the defendants, or any one authorized by them, nor was any money or thing of value paid by defendants as part payment or in earnest to bind the bargain, nor did the defendants accept any part of the goods or actually receive the

same.

The facts are that plaintiffs are engaged in manufacturing shoes in the city of Cincinnati, Ohio, and employ traveling salesmen to solicit orders from merchants for bills of shoes. In October, 1903, Frank J. Weber, a salesman for the plaintiffs, called on the defendants at their store in Vandalia, Mo., and defendants gave him an order for certain kinds of shoes to be manufactured according to samples exhibited by the salesman. Various samples were shown to Nagel, and he picked out 12 or 13 lots of different styles and sizes, being accorded the privilege of ordering shoes not exactly corresponding to the samples. Weber wrote out duplicate copies of the order given to him by the defendants, and gave them one copy. In the order the prices per pair of the different varieties of shoes were stated. After the plaintiffs were at work manufacturing the shoes, the defendants sent them a direction to cancel the order for certain lots; seven in all. Plaintiffs refused to cancel those parts of the order, as the goods were in the process of manufacture, and the cancellation would result in a loss to them. Defendants, when the goods were ready, refused to receive any of them.

The testimony goes to show that the plaintiffs carry no goods in stock, but send out salesmen three to six months ahead of the season to take orders, and shoes are made to fill the orders. The evidence further shows that this is the general custom of shoe factories which sell to the retail trade. The style of the defendants' firm was to be stamped on the shoes and on the boxes containing them. A. Nagel, for the defendants, testified that when he gave the order to Weber it was a conditional one; that is, if he (Nagel) saw shoes whose style and price suited him better, he had the right to cancel the order. It appears further that when an order of shoes like those in controversy is rejected by the purchaser the plaintiffs could sell them to some one else, but at a loss. At the conclusion of the evidence the circuit court instructed the jury to return a verdict for the defendants. The only defense in the case is that the contract was one for the sale of goods, wares, and merchandise of the value of more than $30, and is therefore within the statute of frauds, and nonenforceable. The plaintiffs insist it was a contract for the hiring of labor. This case

All concur.

NICHOLS-SHEPARD CO. v. RHOADMAN et al.*

(St. Louis Court of Appeals. Missouri. April 18, 1905.)

SALES TERMS OF CONTRACT-EFFECT-WARRANTIES-- BREACH- RIGHTS OF PURCHASERFAILURE TO COMPLY WITH CONDITIONS.

1. Where a machine was sold under a written contract containing warranties, and providing how the purchaser should take advantage of any breach of warranty, the rights of the parties were controlled by the stipulations, which were conditions precedent to any right of action by either party.

2. A written contract under which a stacker machine was sold provided that, in case the warranties were not fulfilled, the purchaser should return the machine to the place where received, and also provided that no agent should have power to waive or alter any condition of the contract. The purchaser never returned the machine to the place whence he received it, but, after using the machine nearly an entire season, he wrote the seller asking for a renewal of a purchase-money note, and stating that the season was nearly over before the machine worked properly. In an action on the notes the purchaser claimed that he had offered the machine to the local agent who sold it, and that he had refused to take it back. Held, that the defense of breach of warranty because of the machine not having worked properly was unavailable.

Appeal from Louisiana Court of Common Pleas; David H. Eby, Judge.

Action by the Nichols-Shepard Company against J. H. Rhoadman and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Ball & Sparrow and P. H. Cullen, for appellants. J. S. Gatson and Pearson & Pearson, for respondent.

Statement.

GOODE, J. Plaintiff is an incorporated company. Its action is based on two promissory notes for $125 each, dated July 21, 1902, and due on the 1st days of October, 1902 and 1903. The notes were given for the purchase price of a wind straw stacker purchased of the plaintiff July 14, 1902.

The defense is that the stacker was warranted to be of good material, well made, and, when rightly managed, to carry off the straw and chaff from a threshing machine and stack them clear of the separator; and, further, that if any part of the stacker failed, during the year after its purchase, in consequence of defects in material, the plaintiff would repair it, or furnish a duplicate of the defective part; that it was further warranted that, if the company (plaintiff) failed to make the stacker perform after notice and friendly assistance, the appliance should be returned immediately to the place it was re*Rehearing denied May 16, 1905.

money and notes it had received and rescind the contract; that the stacker failed in every respect to comply with the warranties, was not well made, of good material, and would not carry off the straw and stack it clear of the separator, many parts of it were defective, and plaintiff refused to repair the same or furnish duplicate parts; that the plaintiff undertook to remedy defects and remove the cause, but could not make the stacker operate; that, within five days after purchasing it, defendants gave notice in writing to the seller through whom it was purchased, and also mailed notices to the plaintiff at Battle Creek, Mich., and Peoria, Ill., advising that the machine had failed to comply with the warranties; that those notices were received by the plaintiff; that afterwards defendants offered to return the machine to the place where it was received, and demanded the return of their notes, but plaintiff refused to allow defendants to return the stacker, or to surrender to the defendants the notes. The allegations of the answer were put in issue by a reply.

The points in issue in this controversy cluster around the following written contract. between the parties:

"Pneumatic Straw Stacker Order.

"Dated at Rockport, Ill., July 14, 1902. "To Nichols & Shepard Company, BattleCreek, Michigan-You will please ship for the undersigned, to or in care of W. F. White, at New Canton, Ill., by the route you consider best and cheapest, on or about the 22d day of July, 1902, one of your Nichols & Shepard Wind Straw Stackers, to be attached to a N. & S. Separator, No. L. F. 5946, with 32-inch cylinder, 48-inch gear. I propose to run this separator and stacker with an engine made by a Nichols & Shepard 10-horsetraction engine.

"In consideration whereof, I agree to receive said stacker upon its arrival, subject to all the conditions of the warranty and agreement printed below, and pay in cash the freight and charges thereon from the factory. I also agree to pay to your order, for said Stacker, the sum of Two Hundred and Thirty-five Dollars in cash, or Two Hundred and Fifty Dollars in notes, as follows: Note due October 1, 1902, for $125.00; note due October 1, 1903, for $125.00. Said notes to be made payable to the order of Nichols & Shepard Company, and each bearing interest at 6 per cent from date of delivery of said stacker until paid. Said notes to be secured by mortgage upon the stacker and separator to which it is attached, and further security as follows:

"Warranty.

"The above stacker is ordered, purchased and sold subject to the following express warranty and agreement, and none other, viz:

"That the said stacker is well made, of

good material, and when properly run and rightly managed will carry off the straw and chaff and stack them together, clear of the separator, with the help of one man to direct the chute and blast.

"It is expressly agreed, that upon starting this stacker, if the undersigned are not able to make it operate well, written notice by registered letter, stating wherein it fails to satisfy the warranty, is to be immediately given by the undersigned to Nichols & Shepard Company at Battle Creek, Michigan, and also to the dealer through whom purchased, and reasonable time allowed them to get it and remedy the defect, if any, unless it is of such a nature that they can advise by letter, and the undersigned hereby agree to render all necessary and friendly assistance, and that if they fail to make said stacker perform, through improper management or lack of proper appliances, they will pay all necessary expenses incurred.

"It is expressly agreed, that any failure or deficiency in said stacker shall be reported by the undersigned in writing, by registered letter, as above stated, within five days after starting said stacker and longer use, or use without such written notice, is conclusive evidence of satisfaction and fulfilment of warranty.

"It is expressly agreed, that if any part of said stacker fails during this year, in consequence of defect in material of said part, Nichols & Shepard Co. have the option to repair the same or to furnish a duplicate of said part free of charge, except freight, after presentation of the defective piece, clearly showing a flaw in material, at the factory or to the dealer through whom said stacker was bought, at any time within this year, but deficiencies in any piece not to condemn other parts.

"If stacker fails to fill warranty, and the Company fail to make it perform after having notice and friendly assistance and cooperation as above provided, said stacker shall be returned immediately to the place where received, and the Company may return the money and notes which have been received for the same and thereby rescind the contract, and be released from any further liability herein.

"Failure to pay for the stacker at the time and place of delivery and in the manner above provided; or failure to give any notices in writing as provided for herein; or failure to render friendly assistance and cooperation; or keeping the stacker after the five days allowed as above provided, or any abuse, misuse, unnecessary exposure or waste committed or suffered by the purchaser, shall be a waiver of the warranty and a full release of the warrantor, without in any way affecting the liability of the purchaser for the price of the stacker or notes given therefor.

"Notice-No general or special agent or local dealer is authorized to make any change

in this warranty. Workmen or experts are not agents, and have no authority to bind the Company by any contract or statement.

"This order is subject to the acceptance of the said Company, and when so accepted is a binding contract which no person, other than an officer of the company, has authority to modify, or to waive any of its conditions. Neither shall the fact of any local or traveling agent or expert of this company rendering assistance of any nature at any time, operate as an extension or a waiver of the conditions thereof.

"After the stacker mentioned herein is delivered to the purchaser, all subsequent contracts relating thereto or in anywise affecting this warranty, or the return of the stacker thereunder, must be in writing, and must, in order to bind the Company, be signed by its president. Postoffice, Rockport, Ill.

"[Sign here.] "[Sign here.]

J. H. Rhoadman, S. M. Rhoadman.

"Each purchaser must fill out and sign one of the Property Statements on the back of this Order.

"This order is recommended by W. F. White.

"Any additions or alterations in the printed matter in this order will insure its rejection.

"(All orders for Pneumatic Stacker must be taken on these blanks."

"(Keep a copy of this Order and Warranty for Reference.)"

Plaintiff introduced the notes and rested. The defendants put in evidence to prove breaches of the warranties, and that the plaintiff's agent failed, after several attempts, to make the machine work. There was testimony, too, that the defendants offered to return the machine to W. F. White, a local dealer, from whom they purchased. The appliance was received at New Canton, in the state of Illinois, about seven or eight miles from defendants' farm. It was set up and attached to a threshing machine the defendants owned, but, on account of lack of suitable attachments and pulleys, was not adjusted in good working order. One James, an agent of the plaintiff. promised to send the necessary attachments, and with them Frank Drescher, a mechanic living at Barry, Ill., to fix the machine. The attachments and pulleys were received; but when Drescher reached defendants' farm he said the pulleys last sent did not fit, and took those shipped with the stacker in the first place, attached the stacker to the threshing machine, and ran it. This was two or three days after the stacker was received by the defendants. The next day after Drescher was at the farm, the defendants undertook to run the appliance in connection with their separator, but were unable to make it work. They notified White. from whom they had bought it, and, besides, wrote three letters to plaintiff, mailed to Battle Creek, Mich.,

and Peoria, Ill., but not registered. White went to the defendants' farm the next day and attempted to make the machine operate, but failed. It seems another representative of the plaintiff subsequently went to the farm with White and looked at the machine, said he could not fix it that evening, as he did not have his working clothes, but would the next day. He never came back. The testimony for the defendants went to show the machine never worked satisfactorily, and that some time during the season of 1902 they notified White of their wish to return it, but he refused to accept it. The machine was put to one side on the defendants' farm, and remained there until taken by an officer under a chattel mortgage defendants had executed to secure the purchase money. The defendants never returned the machine to New Canton, whence they received it, nor did they notify the plaintiff of their wish to return it, except by the verbal notice given to White, the local agent.

The foregoing statement is according to the testimony for the defendants. As the court gave instructions at the close of that testimony which required a verdict for the plaintiff, the latter party put in no evidence in contradiction of the defendants' evidence. The following letter was introduced: "Office of J. H. Rhoadman, Chamber of Commerce Building. American Straw Board Contractor. (Received Oct. 22, 1902.) (Collection Dept.) Rockport, Ill. Oct. 20, '02. Nichols Shepard Mfg. Co.-Dear Sir: The note for $125 now in the hands of the express agent at Rockport, Ill., is due and, owing to the extreme bad luck which has befallen me, I cannot meet it but would be willing to renew the same if satisfactory to you. The season for threshing was nearly over before I got the machine to work properly; I only got one crop threshed with this machine and owing to sickness I have not been able to do any work with the engine to make any money; so if you will kindly let me renew that note I will try and make a good run next year and do enough work to pay for the machine and stacker. So if you will renew it I will give it my attention immediately but I am not yet in shape to pay the note this fall. Please let me hear from you soon. Yours resp., J. H. Rhoadman, Rockport, Ill. (Claim No. 49519.)" The writer of that letter testified as follows about writing it: "Why didn't you tell them the machine the stacker-didn't work? A. When they notified me the notes was at the express office for payment, or that one note for payment, I went to Mr. White and told him the company had sent the note and wanted me to pay it and threatened suit on it, and my understanding with him was I should have the note backQ. Never mind. By Mr. Cullen: I insist. A. Mr. White told me all the time, if the stacker didn't work, I should not pay for it, and I should have a new stacker, or that should

be made to work by his company; and, when they notified me the note was there, I went to Mr. White and told him about it, and he says, 'You mustn't let them sue you; it will ruin my business; they have a considerable amount of my commissions they are holding back, and if they sue they will not pay the commission;' and he insisted that I write them and ask them to renew and get another year's time, and, if I would, he would sell the machine; he couldn't sell at the present time, but he would have an opportunity during the threshing season, he could sell the machine and send to the company and take my note. Q. That is the reason you wrote the letter? A. Yes, sir."

In answer to the letter quoted, plaintiff, on October 23d, wrote as follows:

"Dear Sir: Acknowledging receipt of yours of the 20th, asking for an extension of time on your $125 note, which matured this fall, we gave your request careful consideration and regret to say we cannot see our way clear to grant you an extension of time."

Opinion.

This

It is plain from the foregoing statement that the instructions of the court were correct. The rights and obligations of the respective parties were controlled in this case by a written contract containing stipulations which were conditions precedent to any right of action by either party. Plaintiff was bound to make good its warranties, but, to lay it liable to an action for breach of warranty, it was incumbent on the defendants to perform their stipulations. Nichols, Shepard & Co. v. Larkin, 79 Mo. 267, 274. they failed to do. They threshed with the machine through one entire season, though their contention is that from the first it failed to work as warranted and was very unsatisfactory. After the plaintiff had been notified of the imperfections in the appliance and failed to correct them, the duty of the defendants was to return it to New Canton, where they received it, if their purpose was to rescind the eontract and refuse payment of their notes. The letter we have copied shows that, at the close of the threshing season in the latter part of October, defendants had no complaint to make of the stacker; none, at least, which looked to repudiation of their liability for the price of it. All they asked was a renewal of the note then due, assigning, as a reason, that illness had prevented them from making the money to pay the note. It is true the letter said the season was nearly over before they got the machine to work properly, but there was not the least suggestion of a desire to rescind the contract and return the machine to the plaintiff. The meaning of the letter was quite the contrary. To obviate the effect of this conduct, defendants insist on their offer to return the machine to White and his refusal to accept it. The written contract distinctly required them to return it to the