of the property in controversy, be- dict of the jury or judgment of the cause he claimed it was not his prop- court shall be necessary to vest title erty. This was known to the sher- to such property in the plaintiff, and iff, who also knew if the property it was also agreed that there should was not levied upon the day the levy be no action on the sheriff's bond on was made it would be sold and dis

account of the title to said property posed of by plaintiff, who claimed

being in the plaintiff, and it was fur. it was his property. The levy was

ther stipulated that the sole contronot void.

versy was as to the right of possesThe verdict found "the ownership

sion of the live stock; that the right and right of possession" of fifteen

of possession of the other property cows, one bull, one boar, one sow,

taken in the replevin writ had been seventeen shoats, six horses, and three colts were in defendant. The

agreed to by the

Appeal-decree

parties and was no finding title in judgment was that the defendant

replevin

longer involved in stipulation"have and retain the property replevied" by virtue of the writ of re

the controversy. In curing error.

view of this agreement of the par. plevin, and it is claimed the verdict

ties we cannot see how plaintiff can and judgment are erroneous and re

be prejudiced by the error in the quire a reversal. The finding of the

verdict and judgment. verdict that the Replevin-find

On the trial plaintiff testified as a ownership of the

witness in his own behalf. During property described property.

his cross-examination the defendant therein was in the

was permitted by the court to make defendant was wrong and should be

plaintiff his witness treated as surplusage. All defend

and examine him as

-making witant claimed was the right to the pos- such. This ruling ownsession of the property by virtue of

discretion.

of the court is comthe levy of the execution upon it as

plained of as reversible error.

It the property of the judgment debtor. There is a stipulation be

was a matter resting in the sound tween the parties in the record

discretion of the court. Wheeler &

W. Mfg. Co. v. Barrett, 172 Ill. 610, which, from its language, could only

50 N. E. 325: First Nat. Bank v. have been made after the verdict was returned.

Lake Erie & W. R. Co. 174 Ill. 36, The stipulation re

50 N. E. 1023. There was no abuse cites the parties had agreed that the

of discretion in the ruling of the title to the property described in the

court. replevin writ, except “that portion

The judgment of the Appellate thereof which is included and recit

Court is affirmed. ed in the verdict this day signed and returned by the jury in this suit," Petition for rehearing denied, is in the plaintiff, and that no ver- June 5, 1919.

ing for defendant-place of

ness one's

ANNOTATION.

Applicability of Bulk Sales Law to sales by farmer.

There is a diversity of conclusion among the few cases which have passed upon the question under consideration, but this, of course, is due largely to the varying terminology used in the different statutes under construction.

In the reported case (WESKALNIES v. HESTERMAN, ante, 128) it was expressly held that sales in bulk of live

stock, machinery, etc., used on farms, are within the Illinois Bulk Sales Law of 1913, which, by express provision, applied to "any sale of goods in bulk." This conclusion, it will be noted, was influenced largely by the fact that an earlier Illinois statute, which was limited to the sale of stocks of merchandise in bulk, had been held unconstitutional (see Charles J. Off & Co. v. Morehead (1908) 235 III. 40, 20 L.R.A. by the statute were also enumerated, (N.S.) 167, 126 Am. St. Rep. 184, 85 and the act, because of the fact that N. E. 264, 14 Ann. Cas. 434, as set out it applied only to stocks of merchaninfra) as class legislation, on the dise, and excluded the other enumeratground that it did not include farmers ed classes of business, such as farmand others not engaged in the regular ers, etc., was held to be special class sale of merchandise, the court saying legislation, and, therefore, unconstituthat the history of the legislation and tional. In the latter connection, and the language of the act showed a clear although not within the scope of the intention to include sales in bulk by present annotation, it is worthy of farmers, other than in the regular and note that the statutes of several of the ordinary course of business.

states have been upheld as against the And in Larson v. Judd (1916) 200 contention that they constituted speIII. App. 420, it was held that a sale cial class legislation. For instance, in bulk by a dairyman, of the cattle, in Spurr v. Travis (1906) 145 Mich. horses, tools, etc., used by him in his

721, 116 Am. St. Rep. 330, 108 N. W. business, was within the Illinois Bulk

1090, 9 Ann. Cas. 250, in sustaining Sales Act of 1913, since they were the constitutionality of the Michigan "goods and chattels used in connec- Sales in Bulk Act of 1903, as against tion with his business of selling mer- the contention that it was class legischandise, commodities, or other wares

lation because it did not include (milk)." But, as stated in the report "farmers, manufacturers, etc.," it was ed case (WESKALNIES v. HESTERMAN),

assumed by the court that the act did and as noted supra, the Illinois Act of

not include "farmers," etc., but ap1905 (Laws 1905, p. 284), which regulated merely the sale of stocks of plied only to merchants. And see Wil"goods, wares, and merchandise" in

son v. Edwards (1907) 32 Pa. Super. bulk, was said, by way of illustration

Ct. 295, wherein the Pennsylvania in Charles J. Off & Co. v. Morehead

Bulk Sales Act of 1905 was held con(n.) supra, to have no application to

stitutional as against the objection a sale by a farmer of all his live stock, that it was arbitrary class legislation, farm implements, crops, growing or

although it was confined to sales of grown, and household goods, but to stocks of merchandise in bulk, and did relate only to stocks of merchandise. not apply to other classes such as Other classes of bu ess not cove farmers, etc.

G. J. C.

FRANKLIN COUNTY, Respt.,

V.
MISSOURI PACIFIC RAILWAY COMPANY, Appt.

Missouri Supreme Court (Division No. 1) - March 28, 1919.

(- Mo. -,210 S. W. 874.) Damages - extending highway across railroad track - alarm bell.

1. The damages to be allowed a railway company for the extension of a highway across its tracks at grade do not include the expense of installing and maintaining an alarm bell, necessary to warn travelers of trains approaching the crossing.

[See note on this question beginning on page 137.) - eminent domain measure of dam. condemned is entitled to receive comages.

pensation for all damages that may be 2. A railroad company over whose anticipated and ascertained. right of way a public road has been [See 10 R. C. L. 148, 149.]

APPEAL by defendant from a judgment of the Circuit Court for Franklin County (Breuer, J.) awarding defendant less than claimed by it in a suit to condemn a right of way for a public road over its right of way. Affirmed. Statement by Woodson, J.:

by appellant were: (1) For the The plaintiff instituted this suit amount expended in constructing in the county court of Franklin the crossing proper, which, by stipucounty against the defendant, for lation, was fixed at $57.82. (2) The the purpose of condemning a right amount expended in constructing of way and opening a public road the crossing bell, which, by stipulaover the right of way of the defend- tion, was fixed at $240.20. (3) For ant company. The county court such amount as appellant would in awarded the defendant $100 dam- the future be required to expend in ages, and in due time the defend- maintaining the crossing proper. ant appealed the cause to the cir- (4) And for such amount as appelcuit court, where the trial resulted lant would in the future be required in a judgment for the defendant for to expend in maintaining the crossthe sum of $57.82, and the defend- ing bell. ant appealed the cause to the St. Appellant made no claim for Louis court of appeals, which, upon damages on account of the land takmotion, transferred the cause to en and covered by said public road. this court (- Mo. App. — 183 S. The county court did not order the W. 1099), because Franklin county construction of the crossing bell, was a party to the suit, and because and denied any liability for the exthe title to real estate was involved. pense thereof. It likewise denied

The cause is submitted to this liability for future expenditures court upon the following agreed necessary for maintaining the statement of facts, in lieu of the bill crossing and crossing bell. of exceptions:

The board of railroad and wareIt is hereby stipulated between house commissioners did not order attorneys for appellant and re- an electric bell to be installed, but spondent that the following is a appellant placed it there of its own correct statement of facts and volition and on its own motion. synopsis of the evidence in this These were the issues presented case, and may be considered by the

in this case. appellate court in lieu of the bill of The evidence tended to show that exceptions.

there had previously been a public This was an appeal from the road under the Missouri Pacific county court of Franklin countytrack near the location of the presMissouri, in a condemnation pro- ent crossing. A bridge was recentceeding instituted by the county, ly built by the county over Little whereby a public road was opened Berger creek, and to facilitate the across the Missouri Pacific right of approach to this bridge the county way near Little Berger creek bridge surveyor recommended a change in in Franklin county. Appellant was the location of the public road, with allowed $100 damages. It claimed the result that the crossing in quesmore, and the appeal to the circuit tion was opened across appellant's court was from an order of the right of way. county court assessing said dam- The crossing in question is a ages. The sufficiency of the pro- grade crossing, and is at a point ceedings in the county court was not where the railroad track is curved, questioned.

and where the bluffs on one side of Appellant constructed the cross- the track to a certain extent obing and likewise erected a crossing struct the view. Appellant introbell.

duced evidence tending to show that At the trial of this case in the this was a dangerous crossing, and circuit court the damages claimed that the construction of an alarm

(- No. —, 210 S. W. 874.) bell was a reasonably necessary pre

Second. Such amount, if any, as caution. Respondent introduced the court sitting as a jury may beevidence to the contrary.

lieve defendant entitled to, under Expert testimony as to the prob- the other instructions herein, for able cost of maintaining the cross- expenditure by it in the construcing and crossing bell was likewise tion of the crossing bell in question. introduced.

Third. Such amount as the court, The law in this case is the only sitting as a jury, may believe from point at issue, and is fully covered the evidence defendant will be reby the instructions. If the appel- quired to expend in maintaining and late court holds that any or all of repairing the crossing in question appellant's refused instructions cor- aside from the alarm bell. rectly state the law which they pur- Fourth. Such amount as the port to cover, then this case should court may believe from the evidence be remanded.

If appellant's in- defendant will be required to exstructions were, as a matter of law, pend in maintaining and repairing properly refused, notwithstanding the alarm bell in question provided the facts, then this case should be the court, sitting as a jury, shall find affirmed.

defendant entitled to damages on acThe court, sitting as a jury, found count of the construction of said appellant entitled to damages for alarm bell. the construction of the crossing (C) The damages, if any, due the (excluding alarm bell) and assessed defendant for future expenditures its damages at the sum of $57.82. in maintaining and repairing the

All objections to any and all ir- crossing and crossing bell, or either, regularities of the record in the shall be ascertained as follows, to county court and the record on wit: which this appeal rests are hereby (1) Determine such amount as waived, and it is agreed that the the court sitting as a jury may beonly issue before this court relates lieve from the evidence defendant to the instructions hereinafter set will be required to expend per anforth.

num in maintaining and repairing [Signatures omitted.]

same; (2) divide this amount by The following instructions re- 6; and (3) multiply the result by quested by plaintiff were refused by 100. the court, to which action of the (D) If the court believes from court exceptions were duly served : the evidence that the crossing in

(A) The court assesses defend question is dangerous to the travelant's damages for the construction ing public, due to the topographical of the crossing and crossing bell surroundings, and that the installamentioned in

the evidence at tion of the alarm bell in question is $298.02, and the court shall allow not an unreasonable precaution updefendant such additional damages on the part of the railroad company, as it may believe from the evidence then the court sitting as a jury will compensate defendant for its shall allow said company as an item future expenditures in keeping said of damages herein such amount as crossing and crossing bell in repair. it shall have expended for the in

(B) The court declares the law stallation of said alarm bell, which that the court sitting as a jury shall is the sum of $240.20. assess defendant's damages as fol- (E) The court sitting as a jury lows:

shall assess as an item of defendFirst. Such amount as defendant ant's damages such amount, if any, has expended in constructing the as the court may believe from the crossing in question, which the evidence will be required to expend court declares is admitted by the for future maintenance of and reparties to be the sum of $57.82. pairs to the crossing (excluding the electric signal bell) mentioned in Kansas City, St. L. & C. R. Co. 118 evidence.

Mo. 599, loc. cit. 621, 24 S. W. 478; The foHowing instructions were

St. Louis & S. F. R. Co. v. Gordon, given by the court at the instance

157 Mo. 71, loc. cit. 79, 57 S. W. of plaintiff, to which action of the

742; Grand Ave. R. Co. v. People's court the defendant duly excepted :

R. Co. 132 Mo. 34, loc. cit. 45, 33 S.

W. 472. (1) The court declares the law

But the cases throughout the to be that the defendant is not en

country draw a distinction between titled to any damages in this case the class of damages mentioned in on account of putting in an electric the cases just cited, which consist of crossing bell, nor for the expense compensation for the land taken, the of maintaining said bell. (2) The court declares the law to gates, cattle guards, fencing, etc.,

cost of constructing the crossings, be that if he, sitting as a jury, find and those to be incurred on account from the evidence that said electric

of company being compelled to obey bell is merely a precaution exercised

the police regulations of the state by the railway company to lessen

and the municipal corporations the liability for accident, and that thereof. said bell was not required by the We have been cited to no case county, court, or the railroad and holding that the county is liable for warehouse commissioners of Mis

the expense of installing and mainsouri, then said railway company taining the electric bell and cost of cannot recover for erecting or maintaining it, but there are nummaintaining said bell.

erous cases holding to the contrary. Mr. C. D. Corum for appellant. Kansas City Suburban Belt R. Co. Mr. Jesse M. Owen for respondent. v. Kansas City, St. L. & C. R. Co. Woodson, J., delivered the opinion 118 Mo. loc. cit. 622, 24 S. W. 478; of the court:

Plymouth v. Pere Marquette R. Co. I. The instructions given, and re

139 Mich. 347, loc. cit. 349, 102 N. fused in this case present but a

W. 947: Peoria & P. U. R. Co. v. single legal proposition for deter

Peoria & F. R. Co. 105 Ill. 110; Chimination, and that is: Is the coun

cago & A. R. Co. v. Joliet, L. & A. ty liable to the railroad company for

R. Co. 105 Ill. 388, 44 Am. Rep. 799; the expense of installing and main

Massachusetts C. R. Co. v. Boston, taining an electric alarm bell, which

C. & F. R. Co. 121 Mass. 124; Lake it is contended is

Shore & M. S. R. Co. v. Cincinnati, reasonably a neces

S. & C. R. Co. 30 Ohio St. 604, and extending highway across rail- sary precaution for

cases cited; Boston & A. R. Co. v. alarm bell. the safety of the Cambridge, 159 Mass. 283, 34 N. E.

382. traveling public in crossing the railroad upon said

The true rule, as announced by all public road.

the authorities, is correctly stated Generally speaking, the rule of by Mills, in his excellent work on law in this state is unlike what it

Eminent Domain, in 44a, p. 140, is in many of the other states in the

2d ed., in this language: Union, in that a railroad company

The railroad corporation, across over whose right of way a public

whose road another railroad or a road has been con

highway is laid out, has the like -eminent do

demned is entitled right as all individuals or bodies of damages.

to receive compen- corporate, owning lands or easesation for all damages that may be

ments, to recover damages for the reasonably anticipated and ascer- injury occasioned to its title or right tained. Kansas City v. Kansas City in the land occupied by its road, takBelt R. Co. 102 Mo. 633, loc. cit. 641, ing into consideration any fences or 10 L.R.A. 851, 14 S. W. 808; Kan structures on the land, or changes sas City, Suburban Belt R. Co. v. in its surface, absolutely required

Damages

road track

main-measure