ing liquor business on pain of forfeiting the certificate. But the application contained this further statement: "I further understand and agree that this society does not indemnify against death resulting from occupations prohibited by its by-laws." Appeal from Circuit Court, Buchanan County; W. K. Amick, Judge. Action by Adda Hovatter against the Chicago, Rock Island & Pacific Railway Company. From an order setting aside a nonsuit and granting plaintiff a new trial, defendant appeals. Affirmed. Notwithstanding defendant's effort to distinguish this case from that of Mathews v. Modern Woodmen, 236 Mo. 326, 139 S. W. 151, Ann. Cas. 1912D, 483, we can see no both of St. Joseph, for respondent. ground to rest a distinction upon. Notwithstanding forfeiture provisions in the Mathews Case, as in this, there was in that case, as in this, the statement, last above quoted, that indemnity did not cover instances where death resulted from forbidden occupations. The conclusion reached in that case was that notwithstanding the forfeiture provisions, yet the whole contract was to be taken together, and that the clause last quoted justified the deceased and the courts in interpreting the contract to mean no forfeiture by reason of engaging in the prohibited occupa John E. Dolman, of St. Joseph, for appellant. Frank H. Miller and Robert C. Bell, tion unless it caused his death. There is no ground, with a semblance of ELLISON, J. Plaintiff's action is for personal injuries received by reason of being thrown from a buggy, caused by the sudden turning of the horse, which had been frightened by one of defendant's switch engines. At the close of the evidence the court sustained a demurrer thereto, and plaintiff took a nonsuit with leave. Afterwards the court set aside the nonsuit and granted a new trial for error in holding that plaintiff was guilty law. Defendant appealed from that order. of contributory negligence as a matter of The sole question is: Did the evidence in reason back of it, upon which to distinguish plaintiff's behalf make a question for the juthe Mathews Case from the one at bår. De-ry? That is to say, did the evidence show fendant urges that the amended by-law of 1897, in force when the present certificate was issued in 1900, and not being in force when the Mathews certificate was taken out in 1895, makes a difference. But manifestly that amendment did not change the prohibition on the forbidden business. It was forbidden, and forfeiture provided for violation, before that amendment, as well as after it. A denial of plaintiff's right of recovery in this case can only be had by a total dis-ing, and there is therefore maintained there, regard of the Mathews Case. Hence we affirm the judgment. All concur. HOVATTER v. CHICAGO, R. I. & P. RY. (Kansas City Court of Appeals. Missouri. As plaintiff approached a railroad crossing, guarded by gates and a flagman, she drove a horse which was gentle up to the crossing while a freight train was standing over the crossing on one of the tracks. She stopped a few feet from the track to permit the train to clear the crossing, when the gates being up, the flagman signaled her to cross, and she started to do so; but as her horse was about to step on the track she saw a switch engine following about 30 feet behind the train. She jerked the horse back, and as the engine passed he whirled around in fright, and she was thrown out and injured. Held that, since she was entitled to rely on the flagman's invitation to cross unless the danger was so extreme that a man of ordinary prudence would shrink from it, she was not negligent as a matter of law. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*] as a matter of law that plaintiff was guilty of contributory negligence? Plaintiff was in her top buggy driving a gentle horse eastwardly on Hickory street in St. Joseph, towards where it intersects with Seventh and Eighth streets, which run north and south. There are several railroad tracks of the Burlington railway on the west side of Seventh street, and two of defendant's tracks on the east side, leaving a clear space between of about 55 feet. This is a much-traveled cross by defendant and other railway companies, gates or bars and a flagman. The bars close when trains are approaching, and hold travelers until danger has passed, when they raise. When plaintiff approached the bars were up, but she saw one of defendant's freight trains standing on the east side on one of its tracks. Knowing she could not go clear over, on account of this train, she stopped before reaching the Burlington tracks. Then the signal for starting was given from the engine of the standing train and it started up. Then the flagman signaled or beckoned to plaintiff to cross. She drove over the Burlington tracks into the clear space in the street, mentioned above, and, the train not being yet entirely out of the way, she stopped a moment a few feet from defendant's track. When the way was clear she looked at the flagman, and he again signaled for her to cross. She started to do so, and as her horse was about to step on the track she saw one of defendant's switch engines, following about 30 feet behind the train, was nearly upon her, when she jerked the horse back. The engine passed, and the horse whirled round in fright, and she was thrown out and suffered her injury. While in this open A. Bowers, of St. Joseph, for appellants. Warren Rogers, of St. Joseph, for respond space she looked north and south and did not | ment for defendants, plaintiffs appeal. Afsee any cars, except the train which was firmed. moving by. Plaintiff was asked if she looked "just as she started," and she said, "Not the last time," for the reason that she had looked and listened, and at the moment of starting she kept looking towards the flagman, who had everything in view. Manifestly it was error to declare plaintiff guilty of contributory negligence as a matter of law, and the final conclusion of the court was right in ordering a new trial. It was said by the Supreme Court that the object in having a watchman is to prevent travelers from going onto the tracks when trains or engines are approaching. Dickson v. Railway, 104 Mo. 491, 500, 16 S. W. 381; Jennings v. Railway Co., 112 Mo. 268, 274, 277, 20 S. W. 490. In Edwards v. C. & A. Ry. Co., 94 Mo. App. 36, 67 S. W. 950, the St. Louis Court of Appeals said that, if the watchman beckons or tells a person to cross, "he has a right to act on the invitation, unless the danger is so visible and extreme that a man of ordinary prudence would shrink from it." 2 White, Pers. Inj. on Railroads, § 943. It was further stated in that case that, while the presence of a flagman did not wholly absolve the traveler from any care whatever for his own safety, nor excuse reckless conduct, yet it naturally exacted a less degree of care. That statement was approved by this court in McNamara v. Railroad, 126 Mo. App. 152, 103 S. W. 1093. Authorities in this state cited by defendant do not apply to the facts of this case. The judgment is affirmed. All concur. THOMAS et al. v. GANN et al. (Kansas City Court of Appeals. Missouri. April 21, 1913.) 1. JUDGMENT (§ 251*)-PLEADINGS TO SUS ΤΑΙΝ. Though a court of general jurisdiction acquires complete jurisdiction of the parties and subject-matter of the action, it has no power to render a judgment conferring a right or remedy upon one of the parties which is beyond the scope of the issues raised by the pleadings. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.*] 2. JUDGMENT (§ 251*) - PLEADINGS TO SusTAIN-NECESSITY. In a suit to cancel a note and deed of trust securing it, where the issues raised by the pleadings involved defendants' rights to the ownership and possession of the note, and the parties agreed that the amount of the note should be deposited with the clerk and stand in lieu thereof, a judgment for defendants, requiring the clerk to deliver the money to them, is within the scope of the issues raised by the pleadings. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.*] ents. JOHNSON, J. This is an action in equity to cancel a certain promissory note and deed of trust executed and delivered by plaintiffs to defendant Gann. The petition alleges that the note (the payment of which was secured by the trust deed) was without consideration and procured by fraud. The answer is a general denial. The record discloses that at a term of court prior to that at which the cause was tried the parties appeared in court, in response to a motion filed by plaintiffs, and agreed that plaintiffs might deposit with the clerk a sum of money equal to that due on the note; that a judgment should be entered canceling the note and trust deed; and that the deposit should be held by the clerk pending the disposition of the case. The deposit was made by plaintiffs, and judgment was rendered in accordance with the terms of the agreement. Thereafter the deposit was held by the clerk and treated by the court and parties as the legal substitute of the note and trust deed, and the cause was tried on the issue, raised by the pleadings, of whether the note evidenced a valid and legal obligation of plaintiffs, or was without consideration and fraudulently procured by defendant Gann. After hearing the evidence the court decided this issue in favor of defendants, and the following judgment was entered: "Come now again the parties plaintiffs and defendants in the above-entitled cause in person and by their attorneys, and this cause coming on regularly for hearing and for trial, the court, after having seen and heard the evidence adduced upon the part of. both the plaintiffs and defendants, finds the issues herein in favor of the defendants and against the plaintiffs. The court, after having heard and seen the evidence, further finds that heretofore, at the October term, 1911, of this court, said court entered an order herein on November 27, 1911, permitting the plaintiffs to deposit with the clerk of this court the amount of the note in issue in the above-entitled cause and the interest thereon up to the date of deposit, which was then and there deposited in the amount of one hundred and twentyfive dollars, whereupon the court then and there ordered that said note and deed of trust securing the same, and all records thereof, be canceled and for naught held, and ordered the said clerk to hold said money pending the disposition of this cause in this court. The court further finds that said deposit was to be held in lieu of said note and Appeal from Circuit Court, Buchanan Coun- to take the place thereof, and to be treated ty; William D. Rusk, Judge. Action by Alonzo A. Thomas and another against G. I. Gann and others. From a judg in all respects as if it were the note in issue in this cause. The court further finds that the defendant G. I. Gann was at the time of For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes the entry of said order the owner of said | order to the clerk to pay it to its lawful ownnote and entitled to the proceeds thereof, er was within the scope of the issues raised and that said defendant G. I. Gann is now by the pleadings and in no sense may be conentitled to the said deposit with the clerk of sidered as a judgment for affirmative relief. this court. It is further ordered, adjudged, The judgment is affirmed. All concur. and decreed by the court that the plaintiffs take nothing by their suit, and that their petition be dismissed, and that the defendants go hence without day and have and recover of and from the plaintiffs their costs herein expended and have execution therefor. It is further ordered, adjudged, and decreed by the court that the clerk of this court deliver and pay over to the defendant G. I. Gann the said deposit of one hundred and twenty-five dollars." Plaintiffs filed motions for a new trial and in arrest of judgment, and on the overruling of those motions brought the case here by appeal. DIERKS & SONS LUMBER CO. v. Missouri. (Kansas City Court of Appeals. 1. MECHANICS' LIENS (§ 63*)—CONSTRUCTION Unless the language of the statute is to the contrary, mechanic's lien laws should be construed in harmony with the common-law principle that the burden of making improvements and repairs is on the tenant, and not on the landlord. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. § 80; Dec. Dig. § 63.*] 2. MECHANICS' LIENS (§ 72*)-PROPERTY SUB- INTEREST OF LESSOR "AGENT" "OWNER AND PROPRIETOR." JECT - Under Rev. St. 1909, § 8212, giving a lien for material furnished for the improvement of real property under a contract with the owner or proprietor or his agent, section 8214, providing that the lien shall extend to the right, title, and interest of the owner or proprietor of the building, erection, or improvement, and for whose immediate use or benefit the labor was done or materials furnished, and section 8234, [1, 2] The only question presented by plaintiffs for our determination arises from that part of the judgment ordering the clerk to pay the deposit to defendant Gann. Counsel contend that, in substance, that order was a judgment for affirmative relief, and since no such relief was prayed for in the answer its incorporation in the judgment was in excess of the jurisdiction the court had over the cause, and therefore rendered the judgment void. Though a court of general jurisdic-defining "owner or proprietor" as the person tion acquires complete jurisdiction of the parties and subject-matter of an action, it has no power to render a judgment conferring a right or remedy upon one of the parties which is beyond the scope of the issues raised by the pleadings. Boogher v. Frazier, 99 Mo. 325, 12 S. W. 885; Powell v. Horrell, 92 Mo. App. 406; Gamble v. Daugherty, 71 Mo. 599; Sache v. Wallace, 101 Minn. 169, 112 N. W. 386, 11 L. R. A. (N. S.) 803, 118 Am. St. Rep. 612, 11 Ann. Cas. 348; Gum-Elastic Co. v. Pub. Co., 140 Ind. 158, 39 N. E. 443, 30 L. R. A. 700; McFadden v. Ross, 108 Ind. 512, 8 N. E. 161; 1 Black on Judgments, 215, 242; Munday v. Vail, 34 N. J. Law, 418; Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. 773, 35 L. Ed. 464. But the order assailed by plaintiffs does not conflict with that rule. The issues raised by the pleadings involved that of Gann's ownership and right to the possession of the note. If supported by a valuable consideration and not procured by fraud, it and its security, the trust deed, were his property. The parties agreed that the money deposited by plaintiffs with the clerk should stand in lieu of the property and be paid to Gann if the issues presented by the pleadings should be determined in his favor, and this agreement was made the subject of an interlocutory order or judgment. The real issue tried by the court was whether plaintiffs or Gann were entitled to the deposit held by the clerk, subject to the orders of the court, and when the court adjudged that the money belonged to Gann the for whose immediate use, enjoyment, or benefit any building, erection, or improvement is made, a covenant by a lessee to make improvements on leased premises does not make the lessee the "agent" of the lessor, unless, from the shortness of the lease, the extent, cost, and character of lessor's participation in the erection or conthe improvements or other facts, such as the struction of the improvement, it can be seen that it is really for the benefit of the lessor, and that he is having the work done through the work at his own expense and by the lease the lessee, especially where the lessee has to do is expressly denied any authority to bind the lessor. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. § 86; Dec. Dig. § 72. JECT-INTEREST OF LESSOR. In a suit to enforce a lien for materials furnished a lessee in the improvement of premcovenanted to improve, where it appeared that ises leased to him for 99 years, which he had the improvements costs $5,000, that the rent was $3,000 a year, and it did not appear what part of the materials were used in the repairs and what part in an addition to the buildings on the premises, that the rents were increased by the change, or the value of the freehold enhanced for the purpose for which the lessor was using the property prior to the lease, or that the improvement was for the immediate benefit of the freehold, and there was no declaration of law or finding of fact from which it could be determined whether the improve ment was for the immediate use and benefit of the freehold, but, on the contrary, the trial court, by refusing to enforce the lien against the freehold, presumably held that it was not such benefit, the judgment would be affirmed, since to reverse and direct the freehold interest to be subjected to the lien it would be necessary to hold that the covenant to improve the premises, in itself, made the lessee the agent of [ benefit of and bind the heirs, successors, asthe lessor. signs and legal representatives of lessor and [Ed. Note. For other cases, see Mechanics' of lessee, respectively. It is further stipulatLiens, Cent. Dig. § 86; Dec. Dig. § 72.*] ed and agreed that in all provisions of this 4. MECHANICS' LIENS (§ 72*)-PROPERTY SUB-lease wherein dates and periods of time are JECT-INTEREST OF LESSOR. Where improvements by a lessee are for the present benefit of the freehold interest, or are made under such circumstances as to indicate that the lessor is having them made, or has constituted the lessee the agent to make them, or where, by reason of the terms of the lease, the value and extent of the improvements, and the relative length of the term, it can be seen that the improvements substantially increase the value of the freehold interest primarily, and not merely as a future incidental matter, a lien will be enforced against the lessor's interest, notwithstanding a provision of the lease prohibiting the lessee from subjecting the lessor's interest to liens. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. § 86; Dec. Dig. § 72.*] Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge. named, that time is strictly of the essence of the contract herein expressed. Nothing in this instrument is intended, nor shall confer on the lessee, its successors, assigns or legal representatives, any right or legal authority to impose any mechanic's lien on the fee of the said demised realty for any work or labor done, or material furnished, under any contract therefor on behalf of any contractor with lessee, his heirs, assigns, or legal representatives, but any such lien claim shall affect and attach only to the leasehold rights and interests acquired by the lessee hereunder." At the time the lease was executed there was a three-story store building on the prem Action by the Dierks & Sons Lumber Com-ises partitioned off into small rooms on the pany against Albert F. Morris and others. From the judgment, plaintiff appeals. firmed. Af Pew & Proctor, of Kansas City, for appellant. McCune, Harding, Brown & Murphy, of Kansas City, for respondents. Scarritt, Scarritt, Jones & Miller, of Kansas City, amici curiæ. TRIMBLE, J. Suit for the enforcement of a mechanic's lien against a building and the lot on which it stands. Defendant Helen O. Orear owns the fee, subject to a 99year lease given by her to the Comet Realty Company, which lease was duly recorded prior to the furnishing of the materials for which the lien is sought. The only question involved is whether or not plaintiff is entitled to a lien against the freehold interest. The trial court rendered a general judgment against Morris & Kemp, the contractors, for $801.25, the balance due on the account, and made the judgment a lien against the leasehold interest held by the Comet Realty Company, but denied a lien as to the interest owned by Helen O. Orear. Plaintiff appeals, claiming that it is entitled to a lien against the interest of both these defendants. second and third floors. Upon taking charge under its lease, the Comet Realty Company entered into a contract with Morris & Kemp, the contractors herein, by which the following improvements and repairs were made: They built an addition to the rear of the building, 40 feet in length and 25 feet in width, placed a concrete floor in the basement, a new floor on the first floor, and patched the floors on the second and third floors, placed a new plate glass front on the first floor and tore out all of the partitions on the second and third floors, making the space on each floor the full length of the building, including the addition to the rear, changed the stairs, removing them from the front to the back of the elevator on the first floor, plastered the walls throughout the building, and constructed a concrete driveway from the alley down to the basement of the building. The materials for which this lien is sought were furnished Morris & Kemp under this contract, and were used by them; but the evidence does not show what part went into the construction of the addition, nor what part was used in the remodeling and repairs. No contract or personal dealings of any kind were shown on the part of Helen O. Orear with either the plaintiffs or the contractors in reference to the work done on the building. The rent reserved in the lease was $3,000 per annum, payable quarterly, for the first 10 years, $3,300 per annum for the next 10 years, and $3.500 per annum for the remainder of the term, 79 years. The 99-year lease, above referred to, contain two paragraphs, which are as follows: "Section 4. The lessee further covenants and agrees to keep the improvements now on said property in good repair and that it will at its own cost and expense expend within the first year of this lease not less than the sum of five thousand ($5,000.00) dollars for additions and improvements to the building on said demised premises, sub-ry interest? ject to the approval of lessor as to charac- A great many cases from other states have ter of construction." Under the facts in this case, is the plaintiff entitled to a lien against the reversiona been cited as bearing upon the question here involved. But so much depends upon the language of the statute in each particular case that many of them cannot be relied "Section 12. All and singular the stipulations, covenants, agreements and conditions contained in this lease shall inure to the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes upon as safe guides in determining the point in controversy. The wording of our statute must, of course, control, and we are therefore confined largely to the authorities from this state in reaching a conclusion as to what that language means. An examination of our statute discloses that, whenever a mechanic's lien is attempted to be established against an interest in land, it must have, as its ultimate foundation, a contract made with the owner of that interest, or with that owner's agent. Section 8212, R. S. Mo. 1909. So that, unless it can be said, either as matter of law or as a legal inference arising from the facts, that the Comet Realty Company was the agent of Helen O. Orear to make the improvements and repairs, the lien cannot be established against her interest. Now, can it be said that merely by reason of the fact that a lessee covenants with a lessor to make certain repairs and improvements, which will become the property of the lessor at the end of the term, this necessarily makes the lessee an agent of the lessor so as to bind the latter's freehold interest with a lien for the materials used in the improvement? If so, then no matter what is the character and extent of the improvements, nor how strong the language of the lease denying to the lessee the authority to bind the lessor's interest with a lien, the latter will nevertheless be bound, because the lien is a creature of the statute; and whenever the lessee, in contracting for improvements, acts as the "agent" of the lessor, within the meaning of that word as used in the statute, the freehold is bound by the lien, regardless of the inhibitory terms of the lease. [1] At common law the burden of making improvements and keeping up repairs was on the tenant. There was no obligation on the part of the landlord to do so. And our mechanic's lien laws should be construed in harmony with this principle, unless the language of the statute is to the contrary. Defendant contends that section 8216 of our statute clearly distinguishes the right to a lien as between the holder of the fee and the holder of the leasehold. It is true that section, in the case of leased property, gives a lien on the building and on the leasehold term, and provides that the purchaser under the lien proceedings shall be held to be an assignee of the leasehold term, and shall have the right to pay the rent and all arrears and thus prevent a forfeiture for nonpayment thereof, unless the lessor has regained possession of the property for lessee's noncompliance with the terms of the lease prior to the commencement of the improvements, in which case the purchaser under the lien can remove the improvements within 60 days after he shall purchase the same, and the owner shall receive the rent down to the date of the removal of the But as this section may be aimed at those instances where the lessor has not required the improvements to be made, or has merely permitted them to be made, it is not decisive of the question in this case. And we are therefore thrown back on the other sections of our statute in order to ascertain what will constitute an "agent" of the "owner or proprietor" with whom the contract for the improvements must be made. For, if solely by reason of the covenant to improve, the Comet Realty Company is made the "agent" of Helen O. Orear, or if, by reason of the nature, character, and extent of the improvements and the circumstances under which they are made, said company becomes her "agent," then the lien should extend to her interest, without regard to the terms of the contract between them. [2] It would seem to be clear that the mere covenant to improve contained in the lease would not create the relation of agency between Mrs. Orear and the Comet Realty Company. As said in Albaugh v. Litho-Marble Co., 14 App. D. C. 120, the covenant "involves no theory of agency, but quite the reverse. The parties to the lease dealt with each other, not as principal and agent, but practically as adverse parties. To hold that a lessor covenanting with a lessee for the security of his interest under the lease, the payment of rent, probably, should construct a building upon the land in the place of one to be demolished, would thereby and by virtue of such a covenant make the lessee his agent and bind himself personally, as well as his property, for the contract of the lessee in the performance of his covenant, seems to us to be wholly without warrant, either in law or in reason; and we greatly question whether even the most positive legislation could impose liability upon one person for the obligations of another in such a contingency. Certainly no such liability is imposed, or sought to be imposed, by our mechanic's lien law. The covenant in question is itself evidence of the intention of all the parties that the lessor should not be bound.” So that, in order to make such covenant constitute an agency between the lessor and lessee, we are necessarily bound to look at the facts to determine whether there was an agency or not. If, on account of the shortness of the lease, the extent, cost, and character of the improvements, or other facts in evidence, such as the participation by the lessor in the erection or construction thereof, it can be seen that the improvement is really for the benefit of the lessor, and that he is having the work done through his lessee, then it can be said with justice that the lessee in such case is acting for the lessor. But if the facts do not show this it would seem to be untenable to say that the mere inclusion in a lease of a covenant to improve and repair on the part of the lessee will create the relation of agency between the tenant |