Gantt, J.
— This is a suit in equity to restore a destroyed deed from J. G. Lakenan and wife to Mrs. Frances D. Hickman for her life, remainder to the natural heirs of her body, conveying to them a parcel of land in the city of Mexico, Audrain county, Missouri, ninety feet front by two hundred and seventy feet deep, being the north part of, and taken off of, the [169]*169north side of lot number 35 of Mrs. Sparks’ southern addition to the city of Mexico.
It was alleged in the amended petition, and sustained by the proofs, that in 1886, Lakenan and wife by warranty deed conveyed said land to Mrs. Hickman and her bodily heirs and that said deed was never recorded.
In May, 1889, Mrs. Hickman and her children Were in the possession of this lot, occupying it as a residence. At the same time Mrs. Oreen, the defendant, was the owner in fee of a small farm of forty acres near Mexico, on which she was residing with her husband and codefendant herein. Mrs. Hickman was desirous of moving to the country and Mrs. Oreen preferred a residence in the city, and, thereupon, each of them employed the real estate firm of Moore & Nelson to effect the exchange of these two pi’operties. Their contracts with Moore & Nelson were in writing. Mrs. Hickman’s contract with them was executed May 14, 1889, and Mrs. Oreen’s on May 16. In Mrs. Oreen’s contract, the land was placed with Moore & Nelson to exchange for Mrs. Hickman’s lot.
Mrs. Oreen asserted that she was the owner in fee of the forty acres and she agreed to take Mrs. Hickman’s lot therefor, and give possession, November 1, 1889, the agency to continue for one month from its date. Moore & Nelson were “authorized to sell and contract under seal with purchaser for said premises according to the price a/nd term of payment above written, or any price or term which we may agree to accept other than the above.” Their commission was fixed at $50 if the exchange was effected, whether by them or another. Mrs. Hickman’s contract was in all respects,, except dates, exactly like Mrs. Oreen’s. Shex represented that she was the owner in fee of her lot, and authorised the agents to exchange it for Mrs. Green’s forty acres, and [170]*170for the same commission and upon the same stipulation and give possession at “any time.” Each owner valued her property at the time at $2,000, and there is no evidence that one was not as valuable as the other.
Mrs. Hickman caused an abstract of her title to the lot to be made, and, as by the abstract, the title would appear in Lakenan whose deed to her she had not recorded, and which, if recorded, would show she only had a life estate, she obtained from Lakenan and wife, another deed, a quitclaim deed, and special warranty, on May 23, 1889, conveying the title in the lot to herself without the words of limitation to her bodily heirs. Mrs. Green’s title, to the forty acres has not been disputed. Mrs. Hickman, through her agents, Messrs. Moore & Nelson, gave Mrs. Green the abstract to the lot, and Lakenan’s quitclaim deed, and Mrs. Green submitted the abstract and deed to M. Y. Duncan, Esq., for his opinion on the title as shown by the abstract and deed. He advised her that Mrs. Hickman could make her a good title, and accordingly Mrs. Hickman made Mrs. Green a warranty deed to the lot in town, and Mrs. Green and husband made Mrs. Hickman a warranty deed to the forty acres, conveying a life estate to Mrs. Hickman, remainder in fee to her bodily heirs. Soon after the deeds were exchanged Mrs. Hickman with her children, the plaintiffs, moved out of her town house and took possession of the forty acres, and lived on it until she died, and Mrs. Green took possession of, and moved into, the house in town.
After the deeds were exchanged, Mrs. Hickman, her adult son Thomas Hickman, J. G. Lakenan and Nelson, of the firm of Moore '& Nelson, met in the office of Moore & Nelson, in Mexico, a.nd Nelson, in their presence, • and at Mrs. Hickman’s request, [171]*171destroyed the unrecorded warranty deed from Lakenan and wife to Mrs. Hickman and her bodily heirs.
The plaintiffs in this cause are D. C. Hickman, Mary L. Hickman and Mariah Hickman, adult children and heirs of Mrs. Prances Hickman, who died April 2, 1890, and prior to the institution of this suit. The defendants are Mrs. Oreen and her husband, Lakenan and wife, and J. T. Hickman and James L. Hickman, adult sons of Mrs. Hickman, who refuse to become plaintiffs, and Mrs. Josie Hickman, the widow of a deceased son, William T. Hickman, and his two minor children, William T. and Sadie Hickman. •
At the request of plaintiffs, the circuit court made its finding of facts, upon certain points in the case, as follows:
‘ ‘ I find that the witness Nelson was the agent of both Mrs. Hickman and Mrs. Oreen at the time and before the transfer of the deeds were made between Mrs. Hickman and Mrs. Oreen; that he was agent only for the purpose of effecting an exchange of the lands between the parties, and was not authorized by Mrs. Oreen to judge of the goodness of the title she was getting from Mrs. Hickman, nor did he presume to act for her in that capacity; that Mrs. Oreen had in her employ an attorney, M. Y. Duncan, Esq., for the purpose of passing upon the title to the land she was getting; that Duncan, before the trade, did pass upon the title of Mrs. Hickman to the land traded Mrs. Oreen, and pronounced it good.
“I further find that Lakenan and Nelson destroyed the deed from Lakenan and wife to Mrs. Hickman (the deed that provided for a life estate in Mrs. Hickman, and remainder to her children); that this was done after the delivery of the quitclaim deed; that Nelson, before the consummation of the trade, knew, or had an opportunity of knowing, the contents of the destroyed [172]*172deed. I further find Mrs. Green, before the trade, knew that Mrs. Hickman, deceased, was living on, and had possession of, the 90x270 foot lot traded Mrs. Green, and also knew that Mrs. Hickman claimed to be the owner of it; and, further, that the destroyed deed was never on record; that Mrs. Green, upon inquiry as to the title of Mrs. Hickman to the lot mentioned, and delivered to her by Mrs. Hickman (was furnished), an abstract of the title to said lot taken from the records in the recorder’s office of Audrain county together with the quitclaim deed from Lakenan and wife to Mrs. Hickman, which showed an absolute estate in Mrs. Hickman to the said lot, which abstract and quitclaim deed Mrs. Green caused to be examined by a competent attorney, Duncan, who pronounced the title gooi. These are the only facts the plaintiffs desire me to find in writing, and the conclusion of law I draw from the facts as above found, together with others, is, Mrs. Green, being without notice of the existence, contents or destruction of the first unrecorded deed from Lake-nan and wife to Mrs. Hickman, and having exercised proper care and diligence in the examination of the title to said lot, is not affected by its fraudulent destruction, but takes a good title to said lot.”
To this finding plaintiff duly excepted. The circuit court thereupon found the issues for defendants, and rendered judgment accordingly. A motion for new trial was made and overruled, and plaintiffs have appealed to this court.
The errors assigned in this court are, briefly, that the circuit court erred in excluding the evidence of Prank R.
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Gantt, J.
— This is a suit in equity to restore a destroyed deed from J. G. Lakenan and wife to Mrs. Frances D. Hickman for her life, remainder to the natural heirs of her body, conveying to them a parcel of land in the city of Mexico, Audrain county, Missouri, ninety feet front by two hundred and seventy feet deep, being the north part of, and taken off of, the [169]*169north side of lot number 35 of Mrs. Sparks’ southern addition to the city of Mexico.
It was alleged in the amended petition, and sustained by the proofs, that in 1886, Lakenan and wife by warranty deed conveyed said land to Mrs. Hickman and her bodily heirs and that said deed was never recorded.
In May, 1889, Mrs. Hickman and her children Were in the possession of this lot, occupying it as a residence. At the same time Mrs. Oreen, the defendant, was the owner in fee of a small farm of forty acres near Mexico, on which she was residing with her husband and codefendant herein. Mrs. Hickman was desirous of moving to the country and Mrs. Oreen preferred a residence in the city, and, thereupon, each of them employed the real estate firm of Moore & Nelson to effect the exchange of these two pi’operties. Their contracts with Moore & Nelson were in writing. Mrs. Hickman’s contract with them was executed May 14, 1889, and Mrs. Oreen’s on May 16. In Mrs. Oreen’s contract, the land was placed with Moore & Nelson to exchange for Mrs. Hickman’s lot.
Mrs. Oreen asserted that she was the owner in fee of the forty acres and she agreed to take Mrs. Hickman’s lot therefor, and give possession, November 1, 1889, the agency to continue for one month from its date. Moore & Nelson were “authorized to sell and contract under seal with purchaser for said premises according to the price a/nd term of payment above written, or any price or term which we may agree to accept other than the above.” Their commission was fixed at $50 if the exchange was effected, whether by them or another. Mrs. Hickman’s contract was in all respects,, except dates, exactly like Mrs. Oreen’s. Shex represented that she was the owner in fee of her lot, and authorised the agents to exchange it for Mrs. Green’s forty acres, and [170]*170for the same commission and upon the same stipulation and give possession at “any time.” Each owner valued her property at the time at $2,000, and there is no evidence that one was not as valuable as the other.
Mrs. Hickman caused an abstract of her title to the lot to be made, and, as by the abstract, the title would appear in Lakenan whose deed to her she had not recorded, and which, if recorded, would show she only had a life estate, she obtained from Lakenan and wife, another deed, a quitclaim deed, and special warranty, on May 23, 1889, conveying the title in the lot to herself without the words of limitation to her bodily heirs. Mrs. Green’s title, to the forty acres has not been disputed. Mrs. Hickman, through her agents, Messrs. Moore & Nelson, gave Mrs. Green the abstract to the lot, and Lakenan’s quitclaim deed, and Mrs. Green submitted the abstract and deed to M. Y. Duncan, Esq., for his opinion on the title as shown by the abstract and deed. He advised her that Mrs. Hickman could make her a good title, and accordingly Mrs. Hickman made Mrs. Green a warranty deed to the lot in town, and Mrs. Green and husband made Mrs. Hickman a warranty deed to the forty acres, conveying a life estate to Mrs. Hickman, remainder in fee to her bodily heirs. Soon after the deeds were exchanged Mrs. Hickman with her children, the plaintiffs, moved out of her town house and took possession of the forty acres, and lived on it until she died, and Mrs. Green took possession of, and moved into, the house in town.
After the deeds were exchanged, Mrs. Hickman, her adult son Thomas Hickman, J. G. Lakenan and Nelson, of the firm of Moore '& Nelson, met in the office of Moore & Nelson, in Mexico, a.nd Nelson, in their presence, • and at Mrs. Hickman’s request, [171]*171destroyed the unrecorded warranty deed from Lakenan and wife to Mrs. Hickman and her bodily heirs.
The plaintiffs in this cause are D. C. Hickman, Mary L. Hickman and Mariah Hickman, adult children and heirs of Mrs. Prances Hickman, who died April 2, 1890, and prior to the institution of this suit. The defendants are Mrs. Oreen and her husband, Lakenan and wife, and J. T. Hickman and James L. Hickman, adult sons of Mrs. Hickman, who refuse to become plaintiffs, and Mrs. Josie Hickman, the widow of a deceased son, William T. Hickman, and his two minor children, William T. and Sadie Hickman. •
At the request of plaintiffs, the circuit court made its finding of facts, upon certain points in the case, as follows:
‘ ‘ I find that the witness Nelson was the agent of both Mrs. Hickman and Mrs. Oreen at the time and before the transfer of the deeds were made between Mrs. Hickman and Mrs. Oreen; that he was agent only for the purpose of effecting an exchange of the lands between the parties, and was not authorized by Mrs. Oreen to judge of the goodness of the title she was getting from Mrs. Hickman, nor did he presume to act for her in that capacity; that Mrs. Oreen had in her employ an attorney, M. Y. Duncan, Esq., for the purpose of passing upon the title to the land she was getting; that Duncan, before the trade, did pass upon the title of Mrs. Hickman to the land traded Mrs. Oreen, and pronounced it good.
“I further find that Lakenan and Nelson destroyed the deed from Lakenan and wife to Mrs. Hickman (the deed that provided for a life estate in Mrs. Hickman, and remainder to her children); that this was done after the delivery of the quitclaim deed; that Nelson, before the consummation of the trade, knew, or had an opportunity of knowing, the contents of the destroyed [172]*172deed. I further find Mrs. Green, before the trade, knew that Mrs. Hickman, deceased, was living on, and had possession of, the 90x270 foot lot traded Mrs. Green, and also knew that Mrs. Hickman claimed to be the owner of it; and, further, that the destroyed deed was never on record; that Mrs. Green, upon inquiry as to the title of Mrs. Hickman to the lot mentioned, and delivered to her by Mrs. Hickman (was furnished), an abstract of the title to said lot taken from the records in the recorder’s office of Audrain county together with the quitclaim deed from Lakenan and wife to Mrs. Hickman, which showed an absolute estate in Mrs. Hickman to the said lot, which abstract and quitclaim deed Mrs. Green caused to be examined by a competent attorney, Duncan, who pronounced the title gooi. These are the only facts the plaintiffs desire me to find in writing, and the conclusion of law I draw from the facts as above found, together with others, is, Mrs. Green, being without notice of the existence, contents or destruction of the first unrecorded deed from Lake-nan and wife to Mrs. Hickman, and having exercised proper care and diligence in the examination of the title to said lot, is not affected by its fraudulent destruction, but takes a good title to said lot.”
To this finding plaintiff duly excepted. The circuit court thereupon found the issues for defendants, and rendered judgment accordingly. A motion for new trial was made and overruled, and plaintiffs have appealed to this court.
The errors assigned in this court are, briefly, that the circuit court erred in excluding the evidence of Prank R. Jesse, Esq., offered by plaintiffs, and in admitting the evidence of Mrs. Green herself, and in its finding of facts.
I. No objection was made as to the competency of Mrs. Green when she was sworn. She was exam[173]*173ined in her own behalf by her counsel, and cross-examined by plaintiff’s counsel at length, without a suggestion that she was incompetent to testify because of Mrs. Hickman’s death. After all the evidence was closed the plaintiffs moved the court to strike out, or disregard, all the evidence of Mrs. Green because the other party to the trade was dead, which motion the court overruled.
It is apparent at a glance that, if Mrs. Green was incompetent for the reason assigned, plaintiffs were as well aware of it before she testified as aftewards. They can not, then, urge that they had no opportunity to interpose an objection. Having permitted her to testify without objection, the subsequent motion to exclude came entirely too late. Such a practice is not tolerated in our courts. Maxwell v. Railroad, 85 Mo. 95; State v. Hope, 100 Mo. 347; 1 Rice on Evidence, secs. 258 and 259; Quin v. Lloyd, 41 N. Y. 349; People v. Chacon, 102 N. Y. 669; Berry v. Harzell, 91 Mo. 132.
II. The important question in this case is that of notice to Mrs. Green of the execution and delivery of the warranty deed from Lakenan and wife to Mrs. Hickman for life, remainder to her bodily heirs. It is asserted by plaintiffs that she had direct actual notice, and if not, she is bound by the knowledge which Nelson confessedly had of the existence of that deed prior to the exchange of the deeds of Mrs. Green and Mrs. Hickman. As to the direct evidence tending to show that Mrs. Green knew of the prior deed, Lakenan alone testifies. His story is that some days, perhaps a week before the trade between Mrs. Hickman and Mrs. Green was consummated, Mr. and Mrs. Green passed him on the square in Mexico, and one of them, he. don’t ■remember which, asked him what kind of a deed he had made Mrs. Hickman. He says, “I told them my best impression was I had deeded it to Dr. Hick[174]*174man and wife and -her bodily heirs.” Mrs. Green, in her evidence, denied that she ever met Lakenan, as he stated, or talked with him, and emphatically denies that she ever heard, or kne-w, of the prior deed when she traded for the lot. This made a clear and distinct issue for the trier of facts. The trial judge had these two witnesses before him. He observed their manner and bearing, and he chose to believe Mrs. Green in preference to Lakenan. Upon an issue so sharp and distinct, and evidence so contradictory, we defer to the finding of the circuit court.
But it is said that Mrs. Green is bound by the notice imparted to her agent, Nelson. By the terms of Mrs. Green’s contract with Moore & Nelson, she simply employed them to effect an exchange with Mrs. Hickman. The agency was in no sense a general one. They were not employed to sell or convey the land to anyone but Mrs. Hickman, or upon any terms except those specifically named in the instrument, or stick as she might afterwards agree to. She did not employ them to examine Mrs. Hickman’s title. On the contrary, she consulted Mr. Duncan, her attorney, on the title. Nor is there any evidence in the record that Moore & Nelson prepared the abstract or passed on the title. The duty of furnishing the abstract devolved upon Mrs. Hickman. It does not appear, then, that it was within the scope of the agency of Moore & Nelson to pass upon Mrs. Hickman’s title, or that they vdid so, and it is firmly settled that notice to the agent to bind the principal, must he within the scope of the agent’s employment. Bank v. Schaumburg, 38 Mo. 228; Hayward v. Ins. Co., 52 Mo. 181.
By the statute of frauds in this state, section 5186, “no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract.” This [175]*175contract, then, must be the measure of the authority conferred, and by its terms, it is limited to the special matter of the exchange of Mrs. Green’s forty acres for Mrs. Hickman’s lot. Whatever difficulty may arise in determining, in some cases, whether the agency is general or special, we think it obvious that this was a special agency, if Mrs. Green was competent to appoint an agent for any purpose. Mechem on Agency, sees. 284, 285. In fact, so far as Moore & Nelson were concerned, it was taken for granted that Mrs. Hickman had a good title in fee as she had represented to them when-she employed them. The examination of her title was not a part of - the duty imposed upon them by their contract with Mrs. Green, and any information they obtained outside of her contract with them, is not to be imputed to her.
But there are other considerations which forbid that their knowledge of this deed should be imputed to Mrs. Green. Moore & Nelson were also the agents of Mrs. Hickman. They had assumed a position antagonistic to Mrs. Green. They obtained their knowledge of this deed while serving the opposite party, and not in her employment, and it must be remembered that upon the consummation of this exchange they were, to receive $100 commission; otherwise, nothing. If they concealed from Mrs. Green what they and Mrs. Hickman knew, the exchange would be made; if they disclosed the existence of that deed, and the infirmity of Mrs. Hickman’s title, the presumption was that Mrs. Green, as an ordinarily sensible woman, would not transfer her property in which she had a perfect title in fee, for a mere life estate in property no more valuable. Their obligation to Mrs. Hickman might prevent their disclosing the weakness of her title, and the infirmity they had discovered in serving [176]*176her, and themselves, not Mrs. Green. Johnston v. Shortridge, 93 Mo. 227.
If this concealment was a fraud, it was committed in the interest of Mrs. Hickman, and themselves. In the late case of Bank v. Lovitt, 114 Mo. 519, it was held that while it was a general rule that notice of a fact acquired by an agent while transacting the business of his principal, is notice to his principal, and this rule was alike applicable to corporations and individuals, and that the agent was presumed to communicate said fact to his .principal, the reason of the rule ceased when the agent acquired such knowledge while acting for himself, and not his principal, and in such a case the rule ought not to apply.
In that case the court cited and approved the case of Innerarity v. Bank, 139 Mass. 332, in which it was said: “While the knowledge of an agent is ordinarily
to be imputed to the principal, it would appear now to be well established that there is an exception to the construction or imputation of notice from the agent to the principal in case of such conduct by the agent as raises a clear presumption that he would not communicate the fact in controversy, as where the communication of such a fact would necessarily prevent the consummation of a fraudulent scheme which the agent was engaged in perpetrating.” See, also, to the same effect, Frenkel v. Hudson, 82 Ala. 158; Kennedy v. Green, 3 Myl. & K. 699; Cave v. Cave, 15 Ch. D. 639; In re European Bank, L. R. 5 Ch. App. Cas. 358; Bank v. Harris, 118 Mass. 147; Dillaway v. Butler, 135 Mass. 479; Allen v. Railroad, 150 Mass. 200. When the agent is in collusion with a third person to defraud the principal, the latter will not be responsible for the knowledge of the agent in relation to such fraud. Ins. Co. v. Minch, 53 N. Y. 144.
[177]*177The conduct of Nelson in destroying the deed tviih his hands by the direction of Mrs. Hickman, in the absence of Mrs. Green brings this case peculiarly within the principle of these cases, and it would be unjust, and unreasonable to impute Nelson’s notice to Mrs. Green by mere construction, under the facts of this case. * So that, laying out of view altogether the fact that Mrs. Green was, during all these transactions, a married woman, and incapable of appointing an agent in respect to property not her separate estate, we do not think she was bound by Nelson’s knowledge of the existence of Lakenan’s prior deed.
But it was held in Henry v. Sneed, 99 Mo. 407, in an opinion by Shebwood, J., that it would be assumed in the absence of evidence to the contrary that the wife was seized of a legal estate in fee, and not of a separate estate, and it was held in Wilcox v. Todd, 64 Mo. 390 and subsequently followed in Hall v. Callahan, 66 Mo. 316; Hord v. Taubman, 79 Mo. 101 and Flesh v. Lindsay, 115 Mo. 1, “that a married woman could not have an agent as to real estate which was not her separate estate.” If incapable of having an agent, it would seem utterly illogical to bind her by notice to one who was not permitted by the law, as announced in these decisions, to bear that relation to her. Cook v, Walling, 117 Ind. 9.
Much stress is laid upon the fact that when Mrs.' Hickman and Mrs. Green began to trade, the title of record was in Lakenan with Mrs. Hickman in possession. This is true, but there is absolutely no evidence that Mrs. Green knew anything whatever about this title of record. Conceding that Mrs. Hickman’s possession was evidence of notice of her title, how does that effect Mrs. Green? When the negotiations advanced far enough, Mrs. Hickman asserted in writing that she [178]*178was the owner in fee, and furnished the abstract of title which showed a perfect title in Lakenan, and, along with it, she furnished a quitclaim deed from him to herself with a special warranty. If Mrs. Oreen had her suspicions aroused by the quitclaim deed, she very sensibly and naturally submitted the abstract, and deed, to her counsel, and desired to know if Mrs. Hickman could convey her a good title. As the title was perfect in Lakenan, he advised Mrs. Oreen that Lakenan’s quitclaim conveyed to Mrs. Hickman a perfect title, and she could convey a good title according to the decisions of this court in Fox v. Hall, 74 Mo. 315, Boogher v. Neese, 75 Mo. 383, Willingham v. Hardin, 75 Mo. 429, Munson v. Ensor, 94 Mo. 504 and Ebersole v. Rankin, 102 Mo. 488; Hope v. Blair, 105 Mo. 90. He advised and required the Lakenan deed to be recorded and put on the abstract and that was done, and Mrs. Hickman warranted the title to Mrs. Oreen.
Her information, then, after examining in the usual and proper way, to wit, by requiring an abstract and seeking the advice of competent counsel, disclosed that Mrs. Hickman was the owner in fee of the lot and her possession- was consistent with her paper title, and, having purchased it for value, she is as much within the protection of the statute for recording deeds as one who purchased from one having a warranty deed, and she acquired the title against the prior unrecorded deed of which she had no notice. Ebersole v. Rankin, 102 Mo. 488.
We attach no importance to the fact that Mrs. Green’s deedto Mrs. Hickman conveyed a life estate to her with remainder to her bodily heirs, as it was, no doubt, drawn in this manner at Mrs. Hickman’s suggestion, as she had a right to have it conveyed in any way she preferred.
When it is considered that one of these heirs, J. T. [179]*179Hickman, an adult son, stood by and saw the prior deed destroyed without protest; that all the grown children removed to the Green property, and that two of them have since mortgaged their shares in it, with full knowledge of all these facts, and that not one of them gave Mrs. Green notice until after the .deeds had passed and possession given, there is little to commend in this action, so far as the adults are concerned.
III. It remains only to notice the complaint that the circuit court refused to let Mr. Jesse, an attorney, answer two questions put to him by plaintiffs. He was first asked to state “what, if anything, Mrs. Green had ever said to him about the lost or destroyed deed,” and without waiting for an answer, he was immediately asked, “if she didn’t come to him and ask him to destroy the deed, and supply it with another deed?” Before these questions, or either of them, were answered, counsel for defendant, by permission, made inquiry, and developed that Mr. Jesse, at that time, was engaged with Mr. Duncan in defending a case in the circuit court for defendant, and afterwards in this court, reported as Davis v. Green, 102 Mo. 170, and that if she came to him at all she came to him as her attorney, and thereupon the court sustained the objection to the question as one of privilege. The question was not pressed. No offer was made to show that Mr. Jesse would, if permitted, testify to any material fact. It has been ruled again and again, that this court will not reverse a case merely because a seemingly pertinent question is excluded, but the party must go further, and state what he proposes to prove, so that the court can judge of its materiality and relevancy, otherwise it is said the cause might be reversed and upon retrial the matter elicited by the question may be immaterial and incompetent. Bank v. Aull, 80 Mo. 199; Jackson v. Hardin, 83 Mo. 175; State ex rel. v. Leland, 82 Mo. [180]*180260; Kraxberger v. Roiter, 91 Mo. 404; Berthold v. O’Harra, 121 Mo. 88. The mere denial of this question is not sufficient grounds to reverse a cause otherwise well tried. The judgment is affirmed.
Black, C. J., Barclay and Macearlane, JJ., concur; Brace, Burgess and Sherwood, JJ., dissent.