(222 S.W.) that the good will of a company can only be estimated by the results of its business operations from the time it commences until it ceases to do business; and, where the consolidated company, as here, was controlled and managed by the same people as those who to $25,000, in which was included good will at a valuation of $14,143. However, in the agreement by which these assets were turned over to the new company it was further provided that the new company should pay the debts of the Geo. Henseler Oil Company, amounting to $7,606.75. Some of these ac-managed and controlled the constituent comcounts receivable were worthless. When these accounts and the amount of liabilities assumed by the new company of the Geo. Henseler Oil Company were deducted from the real assets, it left net assets actually turned over to the new company by the Geo. Henseler Oil Company, good will, of course, excluded, of only $2,219.56. panies, good will may also be shown by the results of the business operations of the consolidated company. The books of these companies showed that the Geo. Henseler Oil Company started out with a paid-up capital stock of $10,000, and that after five years' operation it wound up with assets of only $2,219.56. The Mercantile Oil & Supply Company commenced business with a paid-up capital of $30,000, of which $15,000 was pre The assets of the Mercantile Oil & Supply Company, also transferred to the new company, were entered on the books of the Hen-ferred and $15,000 was common stock. The seler Mercantile Oil & Supply Company at $25,000, and include good will, $16,290, and other assets, $8,710, but included in these assets are a number of accounts worthless at the time, and subsequently charged to good will so as to increase the amount of good will on the books. Deducting these bad accounts from the real assets left net real assets of $5,592.55. From this is to be deducted a dividend paid to the stockholders of the Mercantile Oil & Supply Company by the new company, under an agreement to that effect, amounting to $800, making real net assets received by the new company from the Mercantile Oil & Supply Company of only $4,792.55. We have therefore, in the first instance, capital stock to the extent of $30,433, represented by alleged good will of the two constituent companies, afterwards, to the extent of $34,268.73, being the aggregate debts of the Geo. Henseler Oil Company, the dividend paid to stockholders of the Mercantile Oil & Supply Company, worthless accounts receivable of the Mercantile Oil & Supply Company, and the remainder, $7,012.11, which represents tangible assets of approximately that value. [6] Conceding, therefore, that the capital stock of the corporation may be represented by good will of constituent companies where no money passes, and that all the stockholders of the constituent companies become stockholders of the new company, did these constituent companies have any real good will? There was no competent proof offered of the value of the good will of either of these companies. One witness, it is true, testified that he thought the good will of the Mercantile Oil & Supply Company was worth $15,000, because that company had always paid a dividend, and had also paid its debts. In this statement he evidently ignored the fact that these dividends had been paid out of the capital stock, as is sometimes done in mushroom organizations, to which class none of these companies, it is but fair to say, belonged. The position of the receiver was common stock paid no dividends, but during the five years of operation the preferred stock paid a dividend of 8 per cent. At the close of these five years of business the net assets of this company amounted to only $4,792.55. Inasmuch as during that period the company paid out to its stockholders $5,200 in dividends, it is proper, in order to arrive at the total loss, to add this to the assets above stated, making $9,992.55. Deducting this from the $30,000 assets with which the company started, leaves a balance of $20,008, which represents the net loss of the company in five years of operation. The two companies, therefore, during their business lives show an operating loss in the one case of 77 per cent. and in the other case 66 per cent. of their respective capitalizations. Under this state of facts the companies can hardly be said to have had a good will which can be represented by dollars and cents when the continued business was managed by the same persons as when operated at the loss stated. It was further shown that the consolidated business with the added good will of the former companies, when operated by the same persons who had owned and operated said former companies, resulted in no profit, but, on the contrary, suffered a net loss in its five years of business. * We have defined good will to be "the advantage or benefit * acquired by an establishment beyond the mere value of the capital stock, funds, or property employed therein, in consequence of the general public patronage," etc. Milling Co. v. Hanebrink, 247 Mo. loc. cit. 221, 152 S. W. 357, Ann. Cas. 1914B, 875. If in consequence of the general public patronage such declared advantage or benefit turns out to be a disadvantage and a loss, then the good will becomes nothing more than a purely imaginary quantity. Paraphrasing a Pauline mysticism, it is neither "the substance of things hoped for nor the evidence of things not seen." Heb. 11:1. V. During the five years of business, although this company possessed wagons, Possession under a parol gift is adverse, not permissive. 3. Adverse possession 106(4)-Ten years One who holds open, notorious, continued, uninterrupted, adverse, and actual possession of realty for 10 years or more acquires legal title as fully as if he held deed from the owner. horses, tools, oil stations, etc., yet it charged | 2. Adverse possession 64-Possession under nothing off for loss, depreciation, or waste, parol gift is adverse. except $90 for the loss of a horse. Everything else it owned or possessed was carried during the five years of business at original cost. The loss which, according to its books, was due to operation, is much less than the actual loss. An expert accountant found that there was an actual deficit or difference between assets and liabilities of $13,302.68. As we have shown, the company commenced business with real assets of about $7,000. Five years later, when the books were examined, not only had the capital stock been dissipated, but the company owed $13,000 more than it had assets. Therefore there was a total loss during this period of $20,314.79. While this was but the estimate of an experienced accountant, the events proved it to be fairly accurate, and tallied with that made by the receiver two years afterwards. [7] VI. The sale of their unpaid stock by certain of the appellants before the institution of this suit will not relieve them from liability to the creditors of the company for their respective balances due on such stock. Eyerman v. Krieckhaus, 7 Mo. App. loc. cit. 457; Epstein v. Clothing Co., 67 Mo. App. loc. cit. 226. We have thus reviewed the facts to enable it to be determined whether there was a payment in any manner by these appellants of the amounts they respectively obligated themselves to pay upon their subscription for and the issuance to them of the shares of their stock. We do not find that the stock was paid for either "in money, meal, or malt;" and, if good will be held to be property, however its existence may be ascertained, it constitutes no factor in the determination of the matter at issue because it did not exist; if it did exist its value was negligible. Under no view of the facts in this case have appellants interposed a meritorious defense, and the judgment of the trial court is therefore affirmed. All concur. COSHOW et al. v. OTEY. (No. 20942.) (Supreme Court of Missouri, Division No. 1. June 2, 1920.) 1. Evidence 278-Admissions of decedent as to gift admissible to characterize defendant's possession. In ejectment by devisees against defendant, a negro, claiming to have been given the land by testator, and to have acquired title by ad verse possession, testimony as to testator's declarations or admissions that the land was defendant's, and that he (testator) had given it to him, held admissible as characterizing defendant's possession. 4. Adverse possession 55-Death of owner does not interrupt adverse possession. If defendant had adverse possession of realty owned by plaintiff's predecessor prior to such predecessor's death, and after the death continued in such possession and held it for the 10 years last before commencement title, as the death did not stop the running of of plaintiff's ejectment suit, defendant acquired the statute. 5. Adverse possession 116(5)-Instruction held not erroneous, as authorizing finding title passed by gift. In ejectment by devisees against defendant, struction that if testator gave the property to a negro, claiming by adverse possession, indefendant absolutely, and defendant, before testator's death, took possession pursuant to the gift, and such possession was adverse and continued for 10 years last before commencement of suit, defendant acquired title, was not erroneous, as authorizing the jury to find that title passed to defendant by the gift. 6. Trial 260(1)—Instruction need not be repeated on request. An instruction, fully and completely covered by another given at the party's request, was properly refused. 7. Trial 243-Instructions presenting conflicting theories of proof not in conflict. Two lines of instructions, following conflicting proof, and presenting fully the two theories of the case, are not in conflict. Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge. Action in ejectment by John W. Coshow and others against Orlaney Otey. From a judgment for defendant, plaintiffs appeal. Affirmed. C. W. & J. W. Wilson, of St. Charles, for appellants. Theodore C. Bruere, of St. Charles, for respondent. GRAVES, J. Action in ejectment for two small tracts of land (aggregating less than 45 acres) in St. Charles county. The petition is in usual form, alleging ouster of plaintiffs by defendant on March 2, 1916, and alleging rents and profits to be $10 per month, The answer upon and damages at $50. which the trial was had was a third amended answer, and consisted of the following de (222 S.W.) maintenance of said cemetery as is directed in my said will, except that they shall not be required to organize as a cemetery association under the laws of the state of Missouri. And I direct that my executor shall, as soon as convenient after my decease, pay to said trustees, Wm. M. Stewart, Mike Sutton and John Burton, for their services as said trustees, fifty dollars each, and to John W. Coshow five hundred dollars for his services as such trustee." fenses: (1) An admission of possession and a denial of all other matters of the petition; (2) plea of the 10-year statute of limitation; (3) plea of the 24-year statute of limitation; (4) title in defendant by open, notorious, continuous, and adverse possession for a period of 10 years. Whilst there are some reiterations, the foregoing cover the defenses made. Reply was a general denial. Upon a trial before a jury the defendant had a verdict in his favor, and from the judgment entered upon such verdict the plaintiffs have ap-in Alonzo B. Howell at the date of his death pealed. No formal assignments of error are made in the brief for appellants but under their heading of "Points and Authorities" it is said that the court committed "reversible error" in the following particulars: (1) In admitting the evidence to the effect that Alonzo B. Howell under whose will plaintiffs claim title stated in his lifetime that he had given the property to defendant; (2) in giving instructions Nos. 1, 2, and 3 for defendant; (3) in giving conflicting instructions; and (4) in refusing instruction No. 8 as asked by plaintiffs. The plaintiffs in this case are trustees under the will of Alonzo B. Howell, by the terms of which he gave: "All the rest, residue and remainder of my es tate, both real, personal and mixed, I give, devise and bequeath to Wm. M. Stewart, Mike Sutton, John W. Coshow, Isaac N. Howell, and John Burton, as trustees, and to their successors in office and trust forever, for the purpose of organizing and incorporating themselves into a cemetery association under the laws of the state of Missouri, said trustees and their successors to set apart such of my real estate as in their judgment may be necessary, including the old family burial ground, where my father and mother and many of their descendants and relatives are buried, for cemetery purposes. And said trustees and their successors are hereby empowered to make such rules and regulations in reference to said cemetery as in their wisdom and judgment may be just and proper. And I hereby give and grant to said trustees authority and power to use the net income, rents and profits arising from my said estate for the purpose of improving, decorating, adorning and enlarging said cemetery grounds. And for all services rendered by them, or any of them, in their capacity as such, they are to be paid out of said income, so that no part of the principal of my estate shall be encroached upon at any time, unless the same be required for such improvements." By a codicil this was later modified thus: "Now, I, the said Alonzo. B. Howell, do make this codicil to my said will, and I do hereby revoke said provision in reference to said cemetery association as a corporation under the laws of the state of Missouri and also as to Isaac N. Howell as one of the trustees, and I hereby appoint Wm. M. Stewart, John W. Coshow, Mike Sutton and John Burton as trustees for the care, improvement and such The paper title to the land in dispute was in January, 1902, and his estate was finally settled in May, 1904. The instant suit was brought May 4, 1916. There is no dispute as to the fact that the property described in the petition is in the possession of the defendant. On the other hand the proof for the defendant tends to show that defendant had been in the open, notorious, hostile, and adverse possession of the land for much more than 10 years. The defendant is a colored man, and the son of a former slave of the said Alonzo Howell, and whilst living upon the land in dispute worked more or less for Mr. Howell. There is much substantial evidence showing that defendant has had the land fenced for more than 25 years, and has lived upon, cultivated, and improved it during that time. He paid no rent during the lifetime of Howell, and none since although there was a slight attempt to show payment of rent a time or two since the death of Howell; but there is not much substance to this portion of the evidence. The evidence is ample to support the verdict of the jury and the judgment of the court in the cause should be affirmed, unless there is some substance in the assignments of error. These, and the pertinent facts pertaining thereto, we leave to the opinion. [1] I. The plaintiffs in this case stand in the shoes of Alonzo B. Howell. The evidence to which plaintiffs objected, and of which complaint is now made, is in the nature of admissions by Howell that he had given the land to Otey. There is no question that Otey went into possession and made valuable improvements thereon in the lifetime of Howell, A sample of the testimony now complained of will serve a good purpose here. Witness Huning was on the stand for defendant, and said: "Q. Now, Mr. Huning, I will ask you whether you had any conversation with Mr. Howell with reference to the property that was on the eastern side of this fence that ran along the west boundary of this in controversy. "Mr. Bruere: Mr. Wilson takes the position as to adverse possession. It's clear that, if the ancestor disclaims any right to this property and makes the statement that the property does not belong to him, but belongs to the other man, and disclaims any right of ownership, that it is admissible. "The Court: If that is what you propose to show, the court will overrule the objection. "Mr. Bruere: That is what I want to show there duly excepted, and saved their excepby this witness. "Mr. Wilson: We except to the ruling of the court for the reasons indicated. "The Court: Proceed. "Q. Just state what that conversation was. A. My father was cutting board timber over there and only was to get the black oak. "Mr. Wilson: That's not giving the statement or conversation with Mr. Howell. We object to it. "The Court: Sustained. State what was said. "A. Of course, on the west side of Uncle Alonzo's house, that was in the pasture, the black oak timber was without, and, of course, he had told him not to take anything but black oak, and tions.) "A. I went over there to work on Orlaney's place one time. Orlaney couldn't go, and he sent me to work in his place, and when I started away Marse Alonzo,' as we always addressed him, told me, he says, 'Now,' he says, 'I have given Orlaney a home,' he says; 'that's his, and I have nothing to do with it.'" The foregoing is the character of the testimony to which the appellants lodge their assignment of error. Evidence of this character was recognized as proper in the case of Allen v. Mansfield, 108 Mo. loc. cit. 348, 350, 18 S. W. 901. That was an action in ejectment, as here, and among other defenses was "Mr. Wilson: We object to that. that of adverse possession. Black, J., in dis"The Court: State what was said-what Mr. cussing the matter at page 348 of 108 Mo., Howell said. A. He asked Mr. Howell wheth-at page 902 of 18 S. W., supra, said: er he could get the black oak on the other side of the house "Q. What do you mean by that? A. Over "The Court: Just state the conversation, whatever it was. A. Well, I was trading with him on some corn there, and he made me a price, and I told him that I couldn't haul that corn at the price, unless he would take off enough to pay me to haul it, and he said he couldn't well do that; and I said, 'Haven't you got any one to haul it?' and he said, 'I have no one but a nigger, and he is busy now, and I couldn't get him;' and I said, 'What nigger? and he said 'Orlaney Otey, that lives over here on a piece of land I gave him.' That was the conversation." The foregoing has reference to a conversation with Mr. Howell at Howell's place. A brother of the defendant testified: "Q. Did you ever have a talk with Alonzo Howell with reference to this place--the ownership of this place? A. Yes, sir. "Mr. Wilson: If the court please, we object to this testimony for the reasons already interposed. "The Court: Overruled. (To which ruling "It is to be observed in the first place that there is no evidence of improvements made by the alleged donee, or other circumstances to take the alleged parol gift out of the statute of frauds. As stated by counsel for the defendant, it is title by adverse possession, not by gift, which will defeat the plaintiff. Continuous adverse possession under a parol gift for the statutory period will not only constitute a perfect defense, as against the donor and those claiming under him, but it will confer title upon the donee. Campbell v. Braden, 96 Pa. St. 388; Moore v. Webb, 2 B. Mon. 239; Sumner v. Stevens, 6 Metc. (Mass.) 337; (Ky.) 282; Outcalt v. Ludlow, 32 N. J. L. Clark v. Gilbert, 39 Conn. 94." In the Allen Case the judgment for the defendant was reversed and the cause remanded, but not upon the point involved here. And in that case at page 350 of 108 Mo., at page 903 of 18 S. W., this court quotes approvingly from the Supreme Court of Connecticut thus: "As said in Clark v. Gilbert, supra: 'Much has been said about an open, notorious possession, but such expressions are not applicable to a case like this. Possession taken under a parol gift is adverse in the donee against the donor, and, if continued for 15 years, perfects the title of the donee as against the donor. The donor in such cases, not only knows that the possession is adverse, but intends it to be, and there is no occasion for any notoriety. Notoriety is only important where the adverse character of the possession is to be brought home to the owner by presumption. Of course, where it is shown that he had actual knowledge that the possession was under claim of title, and therefore adverse, openness and notoriety are unimportant, for no other person has any legal interest in the question or right to be informed by notoriety or otherwise.' See, also, Sedg. & Wait on Trial of Land Titles (2d Ed.) § 735. On these grounds the Rannels Case can stand without question or doubt, for there was, as against the donor, sufficient actual possession of the whole tract, and color of title was not necessary to a complete defense, and that case stands on no (222 S.W.) So in the case at bar. For long years be fore Howell's death, defendant had the land in question under fence and in his possession. Howell lived close by, and was advised of what defendant was doing. He saw defendant improve and use the property, and these admissions of the deceased characterized the possession of defendant, and were proper. [2] II. To follow the question above discussed a little further: The defendant had the right to show the character of his possession by the admissions of the donor, if there was in fact a parol gift. These admissions were made in the very presence of the defendant's possession. The evidence fixes the time of the possession as being more than 10 years prior to the death of the alleged donor, and for more than 10 years after his death. In the case of Int. Bank of St. Louis v. Fife, 95 Mo. loc. cit. 126, 8 S. W. 244, it is said: "Where an absolute and unqualified donee in fee takes possession of lands under a parol gift, his possession is thenceforth adverse to the donor. Authorities are numerous to that effect, and among others the case of Rannells v. Rannells, 52 Mo. 109, where it is said that the donee is to be regarded as holding adversely to the donor from the very inception of her entry under the parol gift.'" So that in this case the admissions of deceased were certainly proper, under the pleadings before us, to characterize the possession of the defendant, as suggested, supra. These admissions tended to show adverse rather than permissive possession, because possession under a parol gift is adverse and not permissive. III. The three instructions given for the defendant, which are complained of in this court read: for a period of 10 years next before the com- [3, 4] Instructions 1 and 3, supra, are proper declarations of law, where there is evidence tending to show continuous adverse possession for the statutory period. As we have suggested there is such evidence: (1) To show continuous adverse possession for the statutory period prior to Howell's death; and (2) to show continuous adverse possession for the statutory period after his death. The death of Howell did not stop the running of the statute, and instruction No. 3 was intended to make that matter clear. These are stock instructions on adverse possession. The plaintiffs by their own instructions, Nos. 1, 2, 5, 6, and 7, recognized that the question of adverse possession was one for the jury, by the use of such clauses as: "Unless the defendant has acquired title by adverse possession of the said tract of land, as explained in the instructions in this case, for a period of 10 years next before the commencement of this suit." The argument before this court was not in criticism of these two instructions, but was "Defendant's Instruction No. 1.-The court directed to instruction No. 2, supra. There instructs the jury that one who holds the open, is a bit of testimony tending to show that notorious, continued, uninterrupted, adverse, the possession of the defendant was merely and actual possession of real estate for a period permissive, and that he held under the of 10 years or more acquires the legal title to the property as fully as if he had acquired the grantor of plaintiffs. This should be borne same by deed from the owner; therefore, if in mind in the discussion of this instruction. you believe from the evidence that the defend- In fact, this permissive character of defendant has held the open, notorious, continuous, un-ants' possession was submitted to the jury by interrupted, adverse, and actual possession of plaintiff's instructions, and the fact found the premises described in the petition prior to against them. the death of Alonzo Howell, and that such possession continued, and the defendant was in the visible, notorious, continued, actual, and adverse possession of the premises described in the petition, for a period of more than 10 years preceding the institution of this action, you must find for the defendant. [5] The portion of this instruction 2, which is complained of here, is that part which authorizes the jury to consider the fact as to whether or not the deceased had given the land to defendant. As used in this instruction, this clause simply meant that the oral gift "Defendant's Instruction No. 2.-If the jury would make the possession taken thereunder believe from the evidence that Alonzo Howell adverse, and not permissive. The whole ingave the property in question to the defendant struction, when read, so indicates. It is absolutely and unqualifiedly, and that the de- clear that the instruction did not authorize fendant, prior to the death of Alonzo Howell, the jury to find title in defendant by and took possession, pursuant to such gift, of the premises described in the petition, claiming ti- through the oral gift, but only authorized the tle according to such gift, and that such pos- jury to determine the matter of an oral gift, session was visible, notorious, continued, adverse as bearing upon the questions of adverse or and actual, and that such possession continued permissive possession. The instruction was |