BROWN, J.
This is a proceeding by certiorari in this court to quash a judgment entered by respondents as judges of the Kansas- City Court of Appeals.
In effect it is a continuation of a suit instituted in the circuit court of Jackson county, wherein the relator as plaintiff brought suit against one Samuel E. Sexton, as defendant, to enforce a contract to repurchase certain real estate located in Kansas City, Missouri. The first trial was had on January 29, 1903, when the circuit court sustained a demurrer to the plaintiff’s evidence, whereupon the plaintiff, Curtis, appealed to this court. The appeal was heard by us at our October Term, 1906, and a decision rendered, reversing the judgment of the trial court — which decision is found in 201 Mo. 217.
This cause being remanded for a new trial, the same was, on May 12, 1908, submitted, to a jury in the circuit court of Jackson county, which jury returned a verdict for plaintiff Curtis. From a judgment on said verdict, defendant Sexton appealed to this court. By an order of this court said appeal was transferred to the Kansas City Court of Appeals; and upon a hearing of said appeal in that court, the judgment of the circuit court was on January 24, 1910-, reversed, on the alleged ground that plaintiff Curtis had failed to establish a cause of action against defendant Sexton. [142 Mo. App. 179.]
After unsuccessful motions on the part of plaintiff, Curtis, to secure a rehearing in said Kansas City Court of Appeals, and to transfer the appeal to this court, he instituted this action to quash the judgment of said Court of Appeals, for the alleged reason that it is in conflict with the former decision of this court in the same case, wherein we held that said plaintiff Curtis had by his evidence made out a prima-facie [200]*200case against the defendant, and was entitled to go to the jury.
This action was heard by us at our last April term and an opinion filed by Ferriss, J., but as said opinion was not concurred in by a majority of this court, the case was reassigned to the writer.
The issues herein present several important questions of law. First, it is contended by respondents that this court has no power by certiorari to review or correct a final judgment or decision of the Kansas City Court of Appeals because such decision is in conflict with a prior controlling decision of this court. Second, that the decision of the Kansas City Court of Appeals in this case is not in conflict with the prior decision of this court, because the evidence in the second trial was wholly different from the evidence before this court upon the first appeal.
Relator contends that the judgment and decision of the Kansas City Court of Appeals, which he seeks to quash, is not only in conflict with prior controlling decisions of this court, but is contrary to the law of the case, as announced by this court when the action was previously before us.
A careful reading of the former decision of this court and the decision of the Kansas City Court of Appeals herein, lends some plausibility .to respondents’ contention that the decision of the Court of Appeals is not in conflict with our decision. But relator contends that the evidence on the part of the plaintiff given at the first trial and which we held to constitute a prima-faeie case for plaintiff, is substantiallv the same as the evidence upon the second trial; and the relator in his motion for a rehearing in the Kansas City Court of Appeals, filed with the respondents a printed copy of the evidence as presented to this court upon the first appeal, and asked the Court of Appeals to examine the record of the former trial and determine whether or not the evidence on the part of [201]*201the plaintiff was the same as upon the second trial; and whether or not the judgment of the Supreme Court was res adjudicata upon the Court of Appeals; but respondents refused to examine the abstract of the record of the first trial and thereby determine whether or not the facts proven by plaintiff were substantially the same at both trials, but contented themselves with an examination of our opinion wherein the facts of the case were stated in an abbreviated form, and held that the plaintiff’s evidence upon the second trial was different in a substantial manner from that given at the first trial.
We have carefully examined the record upon which the decision of the Kansas City Court of Appeals is based, and compared it with the record which was before us on the former appeal, and find that the evidence on the part of the plaintiff in both trials was substantially the same, so far as such evidence tends to make out a case against the defendant Sexton.
OPINION.
At the threshold of this case, our jurisdiction to grant the relief prayed for by relator is challenged. One vital issue which confronts us is, have we the power to correct an error in the final decision of a Court of Appeals unless that court invites us to review its conclusions of law under the provisions of section 6 of the amendment to.article 6 of our State Constitution?
Section 8 of the constitutional amendment of 1884 provides: “The Supreme Court shall have superintending control over the courts of appeals by mandamius, prohibition and certiorari.”
Section 3, article 6 of the Constitution of 1875, provides: ‘ ‘ The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corptis, man-[202]*202damns, quo warra/uto, certiorari and other original remedial writs, and to hear and determine the 'same. ’ ’
Under these constitutional provisions the Supreme Court is the final repository of judicial power. Designedly and wisely, there is found in these provisions no attempt to define or limit the superintending control which the people have seen fit, through their Constitution, to delegate to the Supreme Court, save only to indicate the instrumentalities or writs through which this control may he exercised. In harmony with the idea of ultimate judicial power in the Supreme Court, section 6 of the amendment of 1884 requires the Courts of Appeals to decide questions in conformity to the previous decisions of the Supreme Court. This to the end that the law throughout the State may he certain and uniform. Section 6 points out the method by which a Court of Appeals may transfer a cause to the Supreme Court, and in such cases requires this court to “rehear and determine said cause.” The provisions of this section do not, however, in any degree deprive this court of the superintending control given by the Constitution, and which it is the duty of this court to exercise whenever in its judgment the occasion demands it.
A power to supervise presupposes that the tribunal which is to do the supervising may act on its own initiative. If we could only exercise our right to correct errors and judgments of appellate courts when such courts voluntarily invite us to do so, then every appellate court in the State could constitute itself a Supreme Court and refuse to follow our decisions whenever it might see fit to do so. Under such a condition of affairs, statutes and other laws would mean one thing in one part of the State and something quite different in another appellate district of the same Commonwealth ; and this court would be supreme in name only.
[203]
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BROWN, J.
This is a proceeding by certiorari in this court to quash a judgment entered by respondents as judges of the Kansas- City Court of Appeals.
In effect it is a continuation of a suit instituted in the circuit court of Jackson county, wherein the relator as plaintiff brought suit against one Samuel E. Sexton, as defendant, to enforce a contract to repurchase certain real estate located in Kansas City, Missouri. The first trial was had on January 29, 1903, when the circuit court sustained a demurrer to the plaintiff’s evidence, whereupon the plaintiff, Curtis, appealed to this court. The appeal was heard by us at our October Term, 1906, and a decision rendered, reversing the judgment of the trial court — which decision is found in 201 Mo. 217.
This cause being remanded for a new trial, the same was, on May 12, 1908, submitted, to a jury in the circuit court of Jackson county, which jury returned a verdict for plaintiff Curtis. From a judgment on said verdict, defendant Sexton appealed to this court. By an order of this court said appeal was transferred to the Kansas City Court of Appeals; and upon a hearing of said appeal in that court, the judgment of the circuit court was on January 24, 1910-, reversed, on the alleged ground that plaintiff Curtis had failed to establish a cause of action against defendant Sexton. [142 Mo. App. 179.]
After unsuccessful motions on the part of plaintiff, Curtis, to secure a rehearing in said Kansas City Court of Appeals, and to transfer the appeal to this court, he instituted this action to quash the judgment of said Court of Appeals, for the alleged reason that it is in conflict with the former decision of this court in the same case, wherein we held that said plaintiff Curtis had by his evidence made out a prima-facie [200]*200case against the defendant, and was entitled to go to the jury.
This action was heard by us at our last April term and an opinion filed by Ferriss, J., but as said opinion was not concurred in by a majority of this court, the case was reassigned to the writer.
The issues herein present several important questions of law. First, it is contended by respondents that this court has no power by certiorari to review or correct a final judgment or decision of the Kansas City Court of Appeals because such decision is in conflict with a prior controlling decision of this court. Second, that the decision of the Kansas City Court of Appeals in this case is not in conflict with the prior decision of this court, because the evidence in the second trial was wholly different from the evidence before this court upon the first appeal.
Relator contends that the judgment and decision of the Kansas City Court of Appeals, which he seeks to quash, is not only in conflict with prior controlling decisions of this court, but is contrary to the law of the case, as announced by this court when the action was previously before us.
A careful reading of the former decision of this court and the decision of the Kansas City Court of Appeals herein, lends some plausibility .to respondents’ contention that the decision of the Court of Appeals is not in conflict with our decision. But relator contends that the evidence on the part of the plaintiff given at the first trial and which we held to constitute a prima-faeie case for plaintiff, is substantiallv the same as the evidence upon the second trial; and the relator in his motion for a rehearing in the Kansas City Court of Appeals, filed with the respondents a printed copy of the evidence as presented to this court upon the first appeal, and asked the Court of Appeals to examine the record of the former trial and determine whether or not the evidence on the part of [201]*201the plaintiff was the same as upon the second trial; and whether or not the judgment of the Supreme Court was res adjudicata upon the Court of Appeals; but respondents refused to examine the abstract of the record of the first trial and thereby determine whether or not the facts proven by plaintiff were substantially the same at both trials, but contented themselves with an examination of our opinion wherein the facts of the case were stated in an abbreviated form, and held that the plaintiff’s evidence upon the second trial was different in a substantial manner from that given at the first trial.
We have carefully examined the record upon which the decision of the Kansas City Court of Appeals is based, and compared it with the record which was before us on the former appeal, and find that the evidence on the part of the plaintiff in both trials was substantially the same, so far as such evidence tends to make out a case against the defendant Sexton.
OPINION.
At the threshold of this case, our jurisdiction to grant the relief prayed for by relator is challenged. One vital issue which confronts us is, have we the power to correct an error in the final decision of a Court of Appeals unless that court invites us to review its conclusions of law under the provisions of section 6 of the amendment to.article 6 of our State Constitution?
Section 8 of the constitutional amendment of 1884 provides: “The Supreme Court shall have superintending control over the courts of appeals by mandamius, prohibition and certiorari.”
Section 3, article 6 of the Constitution of 1875, provides: ‘ ‘ The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corptis, man-[202]*202damns, quo warra/uto, certiorari and other original remedial writs, and to hear and determine the 'same. ’ ’
Under these constitutional provisions the Supreme Court is the final repository of judicial power. Designedly and wisely, there is found in these provisions no attempt to define or limit the superintending control which the people have seen fit, through their Constitution, to delegate to the Supreme Court, save only to indicate the instrumentalities or writs through which this control may he exercised. In harmony with the idea of ultimate judicial power in the Supreme Court, section 6 of the amendment of 1884 requires the Courts of Appeals to decide questions in conformity to the previous decisions of the Supreme Court. This to the end that the law throughout the State may he certain and uniform. Section 6 points out the method by which a Court of Appeals may transfer a cause to the Supreme Court, and in such cases requires this court to “rehear and determine said cause.” The provisions of this section do not, however, in any degree deprive this court of the superintending control given by the Constitution, and which it is the duty of this court to exercise whenever in its judgment the occasion demands it.
A power to supervise presupposes that the tribunal which is to do the supervising may act on its own initiative. If we could only exercise our right to correct errors and judgments of appellate courts when such courts voluntarily invite us to do so, then every appellate court in the State could constitute itself a Supreme Court and refuse to follow our decisions whenever it might see fit to do so. Under such a condition of affairs, statutes and other laws would mean one thing in one part of the State and something quite different in another appellate district of the same Commonwealth ; and this court would be supreme in name only.
[203]*203We have always felt and still feel that the distinguished jurists who preside over the several Courts of Appeals will not intentionally disregard their plain duty under the Constitution to follow the last previous rulings of this court on all questions of law and equity which may arise in said appellate courts, and that should the time ever come when an appellate court of any district shall undertake to nullify the rulings of this court, the electorate of such district can he depended upon to remedy the evil. Yet we in no sense abdicate our right and power to see that the laws are administered throughout the State in an uniform manner through the medium of original writs when we deem their issuance appropriate and necessary.
In his opinion herein, Judge Ferriss says:
“Our former decisions show that we have not been inclined to interfere with the Courts of Appeals in the performance of the duties which the Constitution has entrusted to them; nor are we disposed to encourage attempts to induce us to review their rulings through the medium of extraordinary writs. . . . The Constitution requires the Courts of Appeals, and each of them, to conform their decisions to ours; yet we have conceded to a Court of Appeals, in some cases where the matter was presented by litigants, the right to decide, upon its own responsibility whether its decision was in conflict with prior decisions of this court. [State ex rel. v. Smith, 173 Mo. 398; State ex rel. v. Broaddus, 207 Mo. 107; Railroad v. Smith, 154 Mo. 300.]”
■ In his said separate opinion herein, Judge Ferriss correctly announces the law of this case in the following language:
“Said section 6 of the Amendment of 1884, in speaking of prior decisions of the Supreme Court, is obviously referring to prior decisions in other cases. It has never, so far as we are advised, been contended in this court that when this court has declared the law [204]*204upon a given state of facts, a court of appeals is at liberty, upon the same facts, in the same case, if it shall come before that court through subsequent proceedings, to refuse to follow the decision of this court. A decision by this court upon a point presented in a case becomes the law of the case upon that point. It is in the nature of res ad judicata upon that question. In further proceedings in the same case before a Court of Appeals, the prior decision of this court must be followed, when the same point is presented upon the same facts. If that court attempts to disregard the decision of this court upon such point, it exceeds its jurisdiction. When a court acts without jurisdiction, or in excess of its jurisdiction, it is in error, and the error may be reached by certiorari. This court said in M., K. & T. Ry. v. Smith, 154 Mo. l. c. 308, ‘Courts at all times are under the imperative duty first to inquire into its authority to try a cause, and then to keep within the proper limits of jurisdiction prescribed by law.’ Therefore, although a court may have jurisdiction of a case, if it, upon any point, exceeds its jurisdiction, the error may be reached by certiorari, there being no remedy by appeal or writ of error in such case. This court has many times decided that a decision by the Supreme Court upon a point becomes the law of the case upon that point, and is controlling upon further proceedings in that case in the lower court, and also that, with rare exceptions, such decision will bind this court upon a second appeal upon the same point. In the ease of May v. Crawford, 150 Mo. l. c. 524, we said: ‘This rule is necessary to the orderly and decent administration of the law, for it would destroy all respect for the law and make judgments of courts of final resort mere mockeries and travesties, if the trial court could be permitted on a trial anew in that court to set aside, disregard or disobey them.’
[205]*205. “Again, in the case of Gracey v. St. Lonis, 221 Mo. l. c. 5, Lamm, J., speaking upon this question in behalf of the court, says: ‘On a second appeal or writ of error on the same facts and pleadings, the appellate court will not notice questions determined in the previous decision. All such are res adjudicaba and closed. For the practical administration of justice, the former decision is the law of the case;’ citing numerous cases. True, he says further, and properly: ‘Like all general rules, the one in hand has its exceptions. Where manifest and far-reaching error has been committed, no castiron or immutable rule bars a re-examination of a question illy decided. In such case it goes without saying that this court, as a debt due to justice and as one of the foundation stones of its own dignity, reserves to itself the right to reconsider, re-examine and redetermine.’
“It will be perceived, however, that while this court reserves, as it must, the right to re-examine its former decision in the same case, upon the same state of facts, that right is not accorded to the lower court. If this court makes a mistake either as to the law or the facts of the case, as may happen, inasmuch as the court is composed of human judges, it has the power — fortunate that it is so — to correct that mistake by reversing itself on a second appeal; but it by no means follows that the trial court or the Court of Appeals has the same right. in this regard. When' a point, once decided by this court, comes before either the circuit court or the Court of Appeals on further proceedings in the same case, neither of the courts last named has jurisdiction to overrule this court. Here the question is different from that presented in the ease of State ex rel. v. Smith, supra, where the superintending power of this court was invoked upon the Court of Appeals, because that court refused to follow a prior decision of this court in other cases. Here the question is as to the duty of that court to [206]*206follow the prior decision of this court in the same case. It becomes not a question of whether that court is .right or wrong in its construction of the decision of this court, but whether that court is within its lawful jurisdiction if it disregards the law of the case as previously declared by this court. Upon the question here presented, in view' of the fact that there is no way of bringing the point before this court by appeal or writ of error, we have no hesitation in holding it to be our duty, under the superintending control given this court by the Constitution, to review the action of the Court of Appeals by certiorari.”
The litigation between plaintiff Curtis and defendant Sexton is based upon the following contract:
Kansas City, Mo., Jan. 5th, 1888.
In consideration of W. Espy Curtib purchasing from us one-sixteenth interest in Madison Square, an addition to Kansas City, Mo., we guarantee and promise to purchase it back from him October 6th, 1890, if he so desires and requests, at the price he paid us for same, paying him back all the money he paid into and for same, with interest at the rate of 10 per cent per annum from date of purchase.
Also in consideration of W. Espy Curtis purchasing from us the aforesaid one-sixteenth interest in Madison Square we guarantee to sell or trade Lots 1, 2, 3, 4, 5, 6 and 7 in Block (12) James Goodin Place,, an addition to Kansas City, Mo., or else in case these lots are not sold or traded hy April 20th, 1889, we promise and agree to carry the two-fifths interest in those lots belonging to W. Espy Curtis for him without interest, making-the payments for him.
We also agree not to charge said W. Espy Curtis any commission for selling or trading the above mentioned property.
In witness thereof we have placed our hands and seal.
Sexton & Bracking. (Seal).
A casual reading of the foregoing contract demonstrates that it was entered into to evidence two facts: First, that plaintiff Curtis had purchased certain real estate from the partnership of Sexton & Bracking; and, second; that said said Sexton & Bracking, in consideration of said purchase, agreed- to indemnify said [207]*207Curtis against loss through, his investment by repurchasing said property from Curtis on October 6, 1890, “if he so desires and requests” by repaying to him the purchase money, with interest at ten per cent per annum thereon. This contract gave Curtis a right to retain the land if on October 6, 1890, he deemed it to his interest to do so; otherwise, he had the right to treat the purchase money as a loan, and demand its repayment upon the surrender of such title as he had received from Sexton & Bracking.
This contract, while containing a Certain option feature, is wholly unlike an unilateral option to purchase real estate whereby the owner of such real estate for a nominal sum obligates himself to hold such real estate and convey the same to a vendee at a future date upon payment of the purchase price. It partakes more of the nature of a loan wherein it became the duty of plaintiff Curtis, within a reasonable time after October 6, 1890, to elect whether he would retain the property or treat Lis investment as a loan secured by note.
The plaintiff Curtis resides in Cincinnati, Ohio, and the defendant Sexton resides in Kansas City, Missouri. The evidence on the part of the plaintiff upon the first trial shows that on September 13, 1890, plaintiff Curtis sent to defendant Sexton at the latter’s address in Kansas City, a letter (postage prepaid), as follows:
9 — 13—’90.
Samuel E. Sexton:
Shall have to let my int. in Mad. Sqr. go as per agreement with you and Frank. Oct. 6, 1890, is the date named in agreement for my decision but I now give you notice that on that day I shall be ready to receive the cash and turn my interest over to you and Frank or to whom you may order. You can get figures off your books. W. Espy Curtis.
That on September 20, 1890, plaintiff also sent by registered mail to defendant Sexton at the latter’s [208]*208address in Kansas City, Missouri, the following letter :
Sam’l E. Sexton:
Not yet rec’d answer. Shall act on the written agreement between you and Frank and myself concerning Mad. Sq. Oct. 6-90. All money ... for it and-10 per cent per an. ’ I shall be ready to transfer title to you and receive the cash on Oct. 6-90. ■ W. Esny Cuetis.
The registry return receipt shows that; this letter was delivered.to S. E. Sexton at Kansas City on September 23, 1890. The evidence proves in a satisfactory manner that the defendant’s name was signed to the return registry receipt by defendant’s wife.
That on September 30, 1890' plaintiff Curtis sent a third letter to defendant Sexton, postage prepaid, asking defendant to prepare and forward through an express company or bank such deed as he desired for а. reconveyance of the property, such deed'to be executed by Curtis upon payment of $3061,61.
That no answer being received to any of these letters,- plaintiff Curtis went to -Kansas City oh November 20, 1890, and called on defendant Sexton, who .claimed he could not repurchase the property for lack of funds, Curtis claims to have seen in defendant’s -possession during this - interview two of the letters he had written to defendant, electing to resell the property to him and Bracking. ' On' December 1, 1890, plaintiff Curtis tendered to defendant a deed reconveying to defendant and his former partner Bracking the interest he had purchased of them in the Kansas .City real estate and demanded a return of the purchase money paid for the property, with ten per cent ■per annum' interest thereon. Said deed was rejected and repayment of the purchase money refused. This evidence was before us in the former appeal, and on ¡that evidence we held that “before and on October б, 1890, plaintiff asked defendant to prepare such a [209]*209deed as lie desired, and offered to execute it, and defendant declined to do so.” We further held in effect that the plaintiff, by the foregoing evidence had made out a prima-facie case entitling him to a judgment for the purchase money he had paid to Sexton, & Bracking for the Kansas City real estate and that the trial court erred in sustaining a demurrer to plaintiff’s evidence; and we therefore reversed the judgment and remanded the case.
Upon a retrial of the cause we find that the plaintiff introduced substantially the same evidence as upon the first trial, whereupon the trial court submitted the case to the jury, who returned a verdict in favor of the plaintiff; but the respondents, upon appeal to the Kansas City Court of Appeals, held that this evidence shows that plaintiff has no cause of action; and therefore reversed the judgment of the circuit court without remanding the cause.
From reading the decision filed by respondents as judges of the Kansas City Court of Appeals, we find that they, in the main, base their conclusions upon the fact that the plaintiff Curtis did not on the 6th day of October, 1890, elect to resell the property to defendant and tender a deed of reconveyance on that day. ■
While* a* literal construction of our former decision might lead to the conclusion that, upon a former trial there was evidence that plaintiff did elect to resell the property to defendant on the 6th day of October, 1890, that statement was a mere inadvertence of this court, or rather a statement of the legal effect of the plaintiff’s acts in electing to resell the property to defendant a few days before the 6th day of October, 1890; and it-was not our intention to specifically say that the election was made on the 6th day of October. Our decision was that the election to, resell to defendant made a few days before the 6th of October, 1890, was [210]*210the same in. legal effect as if it had been made on that day.
Without taking the pains to read the record of the former trial, the respondents were misled in construing our former decision to mean that an election to resell to defendant and the tendering of a deed to defendant was necessary on the 6th day of October, in order to entitle plaintiff to recover. Such is not the law of this case.
This brings us to a consideration of whether or not it was the duty of respondents to read the evidence given by the plaintiff upon the former trial, and determine whether the matter of the election of the plaintiff to resell the property to defendant was res adjudicata in this suit.
We are not aware of any written law which authorized the filing in the Kansas City Court of Appeals by plaintiff Curtis of the printed abstract of the record of the first trial, which abstract was before us on the first appeal, and formed the basis of our former decision in this cause. Yet we see no reason why respondents should have refused to examine the record of the first trial. By Rule 15 of the Kansas City Court of Appeals, respondents permit any reputable attorney authorized to practice before them, in lieu of a complete transcript of the record of the trial court, to file a printed abstract of the record showing such facts as are necessary to a full understanding of the questions presented to them for adjudication, which printed abstract need only be verified by the signature and professional integrity of the attorney who files same; and where such abstract of the record of a trial had in another appellate court is so certified and vouched for, as was done in this case, we are unable to see any substantial reason for refusing to examine same, particularly where the accuracy of such abstract is not challenged by' opposing counsel. If it were so challenged by opposing counsel, respondents [211]*211could have sent for the original bill of exceptions filed in the first appeal, to verify the accuracy of said abstract. ,
There is no law specifically requiring appellate courts to examine the record in a former appeal in order to ascertain whether the issues decided in such former appeal are res adjudicata upon a second appeal; but owing to the fact that the statement of the evidence and pleadings in the opinions of all appellate courts is necessarily very much abbreviated in order to bring such opinions in reasonable bounds, the only safe method of determining whether or not an issue was determined upon a former appeal is to examine the record of such former appeal. [Hart v. Bank, 27 So. (Miss.) 926.]
The Kansas City Court of Appeals is in certain classes of cases a court of last resort, and courts of last resort not only have the power, but it is their duty, to ascertain in every legitimate way the real truth of every matter submitted to them for adjudication.
There is not one word of constitutional or statute law which authorizes an appellate court in an original proceeding pending before it to appoint a special commissioner to take testimony and certify and file same in the court appointing him; but it being necessary to promote the ends of justice, that such testimony be so taken and certified, appellate courts, proceeding upon their inherent power, do not hesitate to appoint a commissioner to obtain such evidence as is necessary to enable such appellate courts to properly determine and adjudicate such issues as' are tendered in such original proceeding.
On account of the irreparable consequence of erroneous judgments of appellate courts, they not only have the power, but it is their duty, to carefully examine all legal evidence submitted to them before an[212]*212nouncing their decision thereon; and we therefore hold that when the attorney of plaintiff Curtis filed with respondents the printed abstract- of the record of the first trial, it was their duty to read same and thereby determine whether or not the issues presented upon the second appeal had been settled and determined upon the same facts in the former appeal to this court.
doing back to the merits of the case of Curtis v. Sexton, we observe that the respondents in their opinion have laid great stress upon the proposition that time was of the essence of the contract to repurchase the property, holding that the plaintiff cannot recover the money which he paid to defendant unless he tendered a deed to defendant on October 6, 1890. This is a misconstruction of the law of the case, as announced in our former opinion. There is not one word in the contract requiring Curtis to tender a deed of reconveyance on October 6, 1890. At most, it only required him to notify defendant of his desire to resell said property on that day; and the law, looking at the substance rather than the form of things, holds that if a notice was given of plaintiff’s desire to resell said property to defendants a few days before October 6, 1890, and not subsequently withdrawn, that notice was a sufficient compliance with the contract, when followed up, as it was, by a formal offer to reconvey within a reasonable time, regard being had to the situation of the parties.
When plaintiff Curtis purchased the real estate, there was an outstanding deed of trust on same to secure a large,, sum., of money, so that plaintiff only purchased an equity An the property.' The property was advertised under this deed of trust on December 4, 1890, and subsequently-sold. This deed of trust had been placed on the property by defendant Sexton and others; but its existence has no bearing upon Sexton’s liability on the contract sued on.
[213]*213It will be observed that on December 1,1890, plaintiff Curtis went to Kansas City, Missouri, and actually tendered a deed of reconveyance to defendant Sexton, and again demanded the repayment of the money be had paid on the land. This was three days before the land was advertised for sale under the deed of trust, so that so far as the facts disclosed by the record show, there was no excuse for Sexton to refuse to accept the deed and repay Curtis the money be bad invested.
If plaintiff bad sold the interest in the real estate which be purchased of Sexton & Bracking, or bad allowed the same to become encumbered by judgments or other similar liens, tbis would have afforded a valid excuse for defendant to refuse to repurchase said interest ; but no such defense is pleaded or mentioned in the evidence. Plaintiff tendered a proper deed to defendants before the property was advertised for sale under the deed of trust above mentioned; so that there was no such change in the situation of the parties or the title of the property between October 6th, 1890, and the date of tendering the deed as warranted the respondent in. bolding that time was of "the essence of the contract. [Hunt on Tender, sec. 282; Lawrence v. Miller, 86 N. Y. l. c. 137.]
All payments made by tbe plaintiff Curtis on tbe real estate were in checks payable to the order of Sexton & Bracking, and passed through tbe bands of defendant Sexton, except tbe last payment, which amounted to $415.20, which last payment was received by Bracking. This payment, however, was repaid to Curtis by Bracking and as it does not' form any part of the judgment recovered bv; plaintiff, tbe defendant Sexton has no cause to complain that it was not made to him.
Defendant Sexton’s resourceful attorney contends that an inspection of tbe record shows that tbe evi[214]*214denee at the second trial was not the same as upon the first trial. That at the first trial, several letters, from plaintiff Curtis to Bracking and from Bracking to Curtis were introduced, which letters were not offered at the second trial; and that at the second trial, both defendant Sexton and his former partner Bracking gave evidence, while neither of them were .sworn at the first trial; hence our former decision in this case was not in any respect res adjudicaba upon respondents as judges of the Kansas City Court of Appeals in reviewing the evidence upon the second trial.
This contention must be overruled, for while it is true defendant did testify upon the second trial and not upon the first and that his evidence is to the effect that he never received any letters from' plaintiff before October 6, 1890, asking him to repurchase the property, the evidence of plaintiff in respect to his election to resell the property to defendant was the same upon the second trial as upon the first so far as it related directly to defendant Sexton. It was for the jury to pass upon the probative force of such evidence. One prominent fact looms up in the record of the last trial of this case, to-wit, that between January 5, 1888', when plaintiff Curtis purchased the real estate of defendant Sexton and his partner, and the 6th day of October, 1890, the property had very greatly depreciated in value and was not worth as much as the encumbrance which Sexton and others had placed thereon before the sale to plaintiff. It was evidently just such a contingency which the plaintiff and defendant had in mind when the contract of repurchase was entered into. The contract is plain and unambiguous. It was sufficient to enable defendant and his partner Bracking to obtain plaintiff’s money; and being intended to indemnify him against loss by the in[215]*215vestment of such money, it should be so construed by the courts as to produce that result.
It follows that the judgment entered by respondents as the judges of the Kansas City Court of Appeals in the case of Curtis v. Sexton should be quashed and held for naught, to the end that respondents as such judges may recall their mandate, if one has issued on the judgment so quashed, and retry said cause upon the appeal filed with them, and determine the issues therein in conformity with the law as announced herein and in our former opinion in said cause. It is so ordered.
Valliant, C. J., and Graves and Kennish, JJ., concur. Woodson, J., dissents in separate opinion; Ferriss, J., dissents in separate opinion in which Lamm, J., concurs.