which they were executed, the time of delivery as stipulated was of the essence of the contract. Redlands Orange Growers' Ass'n v. Gorman, 161 Mo. 203, 61 S. W. 820, 54 L. R. A. 718; Norrington v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 L. Ed. 366; Cleveland Rolling Mill Co. v. Rhodes, 121 U. S. 255, 7 S. Ct. 882, 30 L. Ed. 920; 23 R. C. L. p. 1331; Sunshine Cloak Co. v. Roquette, 30 N. D. 143, 152 N. W. 359, L. R. A. 1916E, 932. The provision as to equal monthly installments in the named months, written into the contract, with the printed provision as tendered by defendant that, "if shipment is to be made in installments, this contract for all purposes shall be treated as separate for each installment," with the other circumstances shown, is indicative of an intention to make the time of delivery of each installment a condition precedent as to each installment. The decision in Bridge Co. v. Corrigan, 251 Mo. 667, 158 S. W. 39, St. L. Steam Heating & V. Co. v. Bissell, 41 Mo. App. 426, and Harris v. U. S. F. & G. Co. (Mo. App.) 213 S. W. 151, are not regarded as holding contrary to the view above expressed. These cases dealt with contracts for the construction of buildings or structures of a permanent nature, and there were provisions in the contracts, and circumstances surrounding, held to be inconsistent with the idea that time was of the essence of the contract. Evidence was introduced as to the market price in St. Louis of iron of the specifications contracted for during the months named in the contract, including November, 1919. The evidence showed that during the months named in the contract the market price was much above the price contracted, $35 per ton, and continued so, and reached its peak in September or early in October, when a decline began; that this decline was not rapid until about November, when, as the evidence shows, there was a sharp break, and pronounced downward trend, in the price of this product. [6-8] Under the evidence, and under the approved ruling of the trial court, the contract was completely expressed in the written instrument which has been set out heretofore. Therein the condition applicable to delay in delivery was the one absolving defendant from liability "for failure to deliver, caused by strikes, accidents, or other causes beyond our control." In the state of the pleadings, the burden rested upon the defendant of showing that the delay was due to the causes specified in the contract, or that there was an agreement subsequent, extending the time, or that there was a waiver by the plaintiff of its rights under the contract. The immediate question is whether it must be held as a matter of law, under the evidence, that the defendant is within one in the record is not such that it must be said that there was an express agreement extending the time of delivery, or that as a matter of law there was a waiver of the condition in that respect. No express agreement was made in the conversations between Hargate and Wallace. These, on the one side, were representations that plaintiff's stock of iron was low, and, on the other, explanations as to why defendant had not delivered. Under defendant's evidence, defendant did not have coke for making the iron specified until in November. The letter of plaintiff of August 11 was not a waiver, and did not result in a new agreement, because the defendant did not respond to the conditions suggested or proposed in plaintiff's said letter. In that letter the plaintiff charged the defendant with being wholly in default, referred to a recent promise of defendant that it would ship some in August, and upon that expressed a willingness to accept "such belated delivery as in full compliance with the contracts, provided you do ship," and then asked to be advised "exactly" when delivery might be expected. Defendant's reply did not meet the requirements as to so advising plaintiff, nor did the defendant make any shipment except and until the one made in October. This did not constitute an acceptance of or compliance with plaintiff's offer of August 10th. Bernhardt v. Federal Terra Cotta Co., 24 Ga App. 635, 101 S. E. 588. The question whether the acceptance by plaintiff of the iron shipped in October operated as an extension of time or as a waiver, was involved in the issue presented by the demurrer to the evidence. The trial court took the view, and so instructed the jury, that acceptance of an installment or a part of it out of time, under a contract calling for delivery in installments, does not of itself waive the right to require delivery of other installments, and that the acceptance in October of a part of the iron did not of itself, and irrespective of any agreement by plaintiff to an extension of time, constitute a waiver. This conclusion is supported by the holding in Redlands Orange Growers' Ass'n v. Gorman, 161 Mo. 203, 61 S. W. 820, 54 L. R. A. 718, where the cases were reviewed; and the like rulings are found in Wall v. Ice & Cold Storage Co., 112 Mo. App. 659, 87 S. W. 574, and Peak v. International Harvester Co., 194 Mo. App. 128, 186 S. W. 574. See, also, 23 R. C. L. p. 1366; 24 R. C. L. p. 286. A part of the iron delivered, as has been said, was in accordance with the specifications, and a part was not. The trial court, in its instruction on the measure of damages, applied this delivery and acceptance to the first installment, due in March, under the first count in the petition. [9] The defendant complains that the court (273 S.W.) 101 dence showing a number of strikes of the upon the work of reconstruction of its plant, men employed by various contractors engaged and evidence of a general strike of switchmen St. Louis. There is variance in the testimony on railroads, and of a strike of teamsters in as to the length of time strikes delayed the completion of the plant, but a delay of from this cause, as accruing after the making of one to two months might be attributed to the contract. dition of its plant, and plaintiff's knowledge | the contract. The defendant introduced evithereof, at and prior to the time of the making of the contract. The court at first excluded evidence of this character, but afterward admitted in evidence the circular letter of November 12, 1919, wherein it was stated that defendant expected its plant to be in operation by March 1, 1920, and also permitted plaintiff's purchasing agent to testify on cross-examination that at the time the contract was made he knew that defendant's furnace "was down," and that it was being remodeled. Whatever error might be imputed to the court in that regard, in the beginning, was not perpetuated, because the evidence admitted clearly showed the fact that defendant's plant was not in operation when the contract was made, and plaintiff's knowledge at that time, of that fact, was made equally clear. The contract in writing, directly purporting to express all the terms agreed upon, was executed by the parties un-states, from which section defendant was reder that known situation. Upon the whole, the action of the trial court in this regard was not reversible error. [10] The language used in the contract is that defendant was to "sell and deliver" the iron to plaintiff. The contention of plaintiff is, and was, that, since there was machine cast pig iron of the named specifications to be had in the market, the defendant could have purchased the commodity and performed the contract. The trial court construed the contract to be one to manufacture and deliver, and so instructed the jury. The defendant was a manufacturer, and not a merchant or broker. from the circumstances that the parties had It is very evident in contemplation the manufacture by the defendant of the iron to be delivered under the contract. They so treated it during the whole period. The defendant made no effort or offer during the period to fill the contract by the purchase of iron of like specifications. The plaintiff introduced evidence tending to show that pig iron of the specifications named in the contract was purchasable in St. Louis during the spring of 1920. Since the defendant did not, during the time specified, make any offer to deliver iron obtained through purchase, it lost nothing through the holding that its contract was one to manufacture and deliver. The plaintiff is not appealing, but is contending here that the contract could have been met through the purchase by defendant of iron of specifications meeting the requirements. The case was submitted, and under the demurrer is to be considered here upon the issues whether there was an extension of time, or whether the failure to manufacture and deliver was due to accidents, strikes, or other causes beyond the control of defendant, as specified in the contract. [11] There is no substantial evidence in the record tending to show that defendant was prevented by accident from complying with that there was extremely cold weather during [12] Defendant offered evidence to show a part of the time in which the work of remodeling its plant was in progress, and that the building commissioner of the city of St. Louis held up construction for a time, and offered in evidence a report of the Weather Bureau of the United States, showing extreme cold weather in the New England ceiving certain sand and gravel, material necessary in the construction of its plant. The the court to admit that evidence. The court defendant assigns error upon the refusal of did not err in excluding that evidence. These weather conditions were not within the terms of the clause in the contract under the applicable rule of construction, because these conditions were not within the classes specifically enumerated, and do not naturally fall within those classes. This clause is subject to the rule that, where an enumeration of specific things is followed by some more general word or phrase, such general word or same kind. 13 C. J. p. 537; Miller v. Wagenphrase is to be held to refer to things of the hauser, 18 Mo. App. 11; American Bridge Co. v. Glenmore Distilleries Co. (Ky.) 107 S. W. 279; Rosenstein v. Farish Co., 109 Misc. Rep. 411, 178 N. Y. S. 865. der the evidence in the record. The defend[13] But there is another consideration unant's plant was completed on May 13, 1920. Regardless of the effect of weather and other causes for delay, it stands conceded by defendant that at no time prior to October, 1920, did it have coke of the necessary quality and quantity to make iron of the required specifications, and apparently not until in November a sufficient quantity of coke to undertake making the quantity of iron required. The failure to make and deliver the iron during the period after May 31, 1920, according to defendant's own statements and evidence, causes other than lack of coke. There was was not attributable to accidents, strikes, or the express offer of plaintiff in August, 1920, to accept iron as under the contract, provided the defendant would advise exactly as to when it would ship, and would actually deliver accordingly. At that time there was other than lack of coke. That cause, accord- tract. Essentially then, under the facts, the question arises whether, the failure or alleged inability of the defendant to procure the necessary coke was a cause of its failure to deliver within the clause of the contract exempting defendant from liability for failure due to accidents, strikes, or other kindred causes. Defendant offered to introduce evidence to show that in November, 1919, it entered into negotiations with the Indiana Coke & Gas Company for a supply of coke of the kind proper to its purposes, and entered into a contract in February, 1920, for such supply, but that the coke delivered under said contract was not in conformity with the contract, and was unsuited to defendant's purposes, and that defendant was unable to get the necessary coke elsewhere until in October and November, 1920. The defendant complains of the exclusion of this evidence by the trial court. This was not error. The defendant assumed the risk of procuring the necessary coke as, a material to be used in the manufacture of the iron. Its failure to do this was not a cause which, under the terms of the contract, exempted defendant from liability. Under this point our attention is called to the decision in Coal Co. v. Brick Co., 66 Mo. App. 296. In that case the contract was for the shipment of coal, and the language of the contract was that the plaintiff should not be required to furnish coal "when prevented by general strikes, or any other cause beyond its control, from handling the products of its mines." The plaintiff's mines were situated on the line of the Wabash Railroad, and it was held that, if the railroad company, during the month involved, failed and refused to furnish the number of cars which the plaintiff had reason to expect at the time the contract was entered into, and such failure to furnish cars was the sole cause of the plaintiff's failure to comply with his contract to ship two cars of coal each day, the plaintiff was entitled to be excused. In that case it would seem certain that the parties contracted in view of the fact that the plaintiff, from day to day, was dependent upon a given railroad company to furnish the necessary cars to handle the coal. In the case at bar, the defendant must be held to have assumed the risk of procuring in advance by contractual arrangement, from any source available, a material necessary to its purpose. If the party with whom defendant contracted failed to comply with his contract, that was not a result due to accident or to strikes or to causes which can be held to be within the terms of the contract under consideration. In Cleveland Rolling Mill Co. v. Rhodes, 121 U. S. loc. cit. 263, 7 S. Ct. SS6, 30 L. Ed. 920, it was said: "The failure to have on hand a sufficient amount of charcoal to keep the furnace at work is not shown to have been due to 'accidents or ed by all parties, and provided for in the contract sued on. But it was a state of things of which the plaintiffs assumed the risk by be made into pig iron ready to be shipped as undertaking that the whole of the ore should soon as possible after the opening of navigation in 1881." Upon a consideration of the record, we are of the opinion that the court did not err in overruling defendant's demurrer. [14, 15] The defendant assigns as error the action of the court in permitting a witness for plaintiff to give testimony, out of order, and as a rebuttal of testimony to be offered by the defendant. As a part of its defense, the defendant pleaded that coke of the proper quality was not obtainable in St. Louis from May, 1920, to about November, 1920. The plaintiff introduced the witness Burt Champion, who testified as to the prices or iron during the period mentioned, and then asked to be permitted to show by the same witness that coke was obtainable in St. Louis during that period, for the reason that the witness was about to leave the city. The defendant objected, upon the ground that the evidence was in the nature of rebuttal, and not admissible at that time. The court, after inquiry of the witness as to his purpose to leave the city, in the exercise of its discretion, permitted the witness to testify. Afterward, when defendant, in putting in its evidence, offered to show its efforts and its inability to procure coke, the court held that its failure to procure coke was not within the excepting clause of the contract, and defendant then moved the court strike out the testimony of plaintiff's said witness on that subject. The court declined to do so at that time, but advised defendant to renew its motion at the close of the case. We find no exception noted to the ruling then made on the motion. In submitting the case, the court instructed the jury, in an instruction for plaintiff, that defendant's failure to make delivery of the iron by reason of not having coke of the proper quality and quantity was no defense, and that all evidence admitted on that issue was withdrawn from their consideration. The court also, in a separate instruction given for defendant, told the jury to disregard the testimony of said witness Burt Champion as to being able to purchase blast furnace coke during the year 1920. Under the first of these instructions the failure of defendant to have the necessary coke was expressly eliminated as a defense under the contract. That being so, and the jury having also been explicitly told to disregard the testimony of the witness, it cannot be readily seen how defendant's case was prejudiced by the fact that the testimony was given out of the ordinary course, or because it was not expressly withdrawn at the first request of defendant. It is urged that the plaintiff, having taken that testimony, was estopped from (273 S.W.) fered by the defendant on that subject. If the testimony introduced by plaintiff had been a part of his case in chief, this would be true, as was held under that situation in South St. Louis Ry. Co. v. Plate, 92 Mo. 614, 5 S. W. 199. But in this case the testimony was not primarily a part of plaintiff's case. It was admitted, in the exercise of the court's discretion, and against objection only as to it being testimony in rebuttal, and out of regular order. Under the circumstances shown. we do not regard the action of the court as reversible error. [16, 17] The defendant complains of the offer and effort of plaintiff to show that, on account of the failure of defendant to deliver the iron, the plaintiff was compelled to and did purchase pig iron upon the market. But the court excluded that evidence, and committed no error therein. The defendant also assigns as error the action of the court in permitting the whole of plaintiff's letter of August 10th to be read, and specifically the following portion : "We have already been compelled to buy some iron on the market, and we do not want to become overstocked with outside purchases, but we will have to buy more, and for your account, if we cannot depend with certainty upon getting the pig iron from you." The defendant urges that the question of plaintiff being compelled to buy iron upon the market, or of any damage or measure of damages made thereby, was not made an issue under the pleadings. That is true, but this statement was embodied in a letter which was in the nature of a demand by plaintiff upon defendant for a delivery of the iron, and the statement specified was a part of the demand, and of what the plaintiff expected to do under the circumstances. The statement was pertinent also upon the question whether the plaintiff was waiving any right under the contract. On these grounds it was not reversible error to admit the whole of the letter. [18] The defendant assigns as error the giving of plaintiff's instruction No. 6. This instruction told the jury that there was no substantial evidence that defendant was prevented from making delivery by reason of any delay or congestion on the part of any railroad or common carrier in the delivery of materials, and all that testimony admitted in evidence on that issue was withdrawn from their consideration. The defendant urges that there was sufficient testimony before the jury upon that issue to warrant the jury's action thereon in making up their minds. Attention is not called to the specific evidence on this point. The defendant offered, and the court admitted, testimony as to certain materials contracted for by defendant, and circumstances as to their delivery. Chiefly these consisted of a water softener and a car of sand. For these defendant con tracted in September, 1919, and, it appears, with the representative of a firm in Philadelphia. The testimony was that their delivery was delayed. The evidence was that the water softener was delivered to defendant in January, 1920, that it was to be set up by the defendant, and that setting it up would require about three weeks of time. This delay, the witness said, was due, so far as he knew, to trouble at the factory. All of the sand and gravel, which it was said was of a special kind, was not delivered until in May. Upon the question of the cause of the delay of this material, the witness could not qualify; that is, he did not know whether the delay was caused by the railroad or not. The sand was for use in connection with the water softener. The testimony of the witness was that other sand might have been obtained and used, but not under the guaranty of his firm, which specified the particular sand to be used. There was also testimony of delay in getting certain motors and other electrical appliances. This delay was explained livered to the railroad, but the reason of that as due to delay in getting the appliances dewas not explained. The testimony fell short of showing a delay due to railroad congestion, if that were within the, strike and accident clause of the contract, as a contract to manufacture and deliver the iron. The witnesses could not testify from their own knowledge as to the cause of the delay. The defendant assigns as error the giving of instruction 7, which withdrew from the jury all evidence as to the question of timely delivery of coke. That question has been considered already. [19] The defendant complains of the giving of instruction 9 for plaintiff. This instruction told the jury that, under a contract calling for delivery in installments, the acceptance of one installment or a portion thereof did not of itself waive the right to require other installments to be delivered in accordance with the contract, and that the acceptance of 140 tons of iron in October, 1920, was not of itself a waiver by plaintiff of its right to require that the remainder be delivered in accordance with the contracts in evidence. The defendant pleaded that plaintiff had extended the time for delivery and had waived the provision for deliveries in the months named, and pleaded the delivery and acceptance in October of the iron then delivered. The defendant did not ask an instruction advising the jury as to what constituted a waiver, but the court instructed the jury, under defendant's instruction 3, that the parties to such a contract might extend the time of its performance either expressly or by their conduct, and that, if the jury found from the evidence that plaintiff consented or agreed to a postponement of the time of the delivery until the month of October, and that on October 19, 1920, the defendant did ship certain iron, and plaintiff accepted it as in com pliance with the contracts, then the plaintiff could not recover damages for failure to deliver the iron at the times specified in the contracts. We do not think these instructions could have misled the jury upon that subject. verdict, and that the amount of the verdict is far below the difference between the market price and the contract price in the period of the months named. However, laying aside that suggestion, we think the measure of damages was properly defined and submitted. [22] There is yet another assignment of error, founded upon the refusal of the court to permit the defendant to file an amended answer, which included a counterclaim against the plaintiff. The suit was filed May 21, 1921, and assigned to Division No. 1 under the rules. An answer was filed by defendant on August 26, 1921. The answer then filed was the one on which the case was tried. The plaintiff filed its motion to strike out parts of the answer, which motion was overruled, and afterward, January 3, 1922, plaintiff's reply was filed. On January 16, 1920, the defendant filed its affidavit for a continuance, and the application was granted, and the cause reset for February 20, 1922. On February 15, 1922, the defendant made oral application in Division No. 1 of the court, for leave to file its amended answer and counterclaim, which was denied. The counterclaim set up the creation of the War Industries Board in the World War period, and its pow. ers, and alleged that the plaintiff herein re [20] Defendant assigns as error the giving of plaintiff's instruction 11, as modified by the court, upon the burden of proof. That instruction told the jury that the burden was upon plaintiff to establish by a preponderance of the evidence the facts necessary to a verdict in its favor under the instructions given, and then told the jury that, upon the issue as to whether defendant was excused from making delivery due to strikes, accidents, or other causes beyond its control (as defined in the instructions), and upon the issue as to whether or not the plaintiff had waived any of its rights under the contracts, the burden of proof was upon the defendant. Defendant complains that the court did not in this instruction more specifically set forth what the issues were upon which the plaintiff had the burden of proof. The instruction properly placed upon the defendant the burden of proof upon the two issues specifically pointed out, and necessarily left the burden on the plaintiff as to others, and besides, by instruction 1, given of the court's own mo-quested said War Industries Board to altion, the court defined the issues upon which they might find for plaintiff, unless they further found the facts, which the court also defined, constituting a defense. focate and purchase for it certain quantities of iron; that said War Industries Board, about October 22, 1918, allocated to, and in writing ordered from the defendant herein [21] The defendant also assigns error in 6,000 tons of pig iron at $39.60 per ton, to be the giving of instruction 2, by the court, of manufactured for and delivered to the plainits own motion, on the measure of damages, tiff, by the defendant, in equal monthly inwhereby the court confined the jury to find- stallments, during the first half of the year, ing plaintiff's damages to sums equal to the 1920; that said allocation and order was acdifference between the contract price and the cepted by the defendant; that defendant was market price as of the last days of March, ready and willing to deliver said iron in acApril, May, and June, 1920. The defendant cordance with said provisions, but that plainassigns as error therein that the court did tiff failed and refused to accept and receive not give the jury an opportunity to assess the the same, or any part thereof, whereby the damages as of the time of November, the defendant was damaged in the sum of $129,time when, as defendant urges, the breach, if | 000, and defendant prayed judgment for that any, really occurred. Under this, attention sum against the plaintiff. Division No. 1 is called to Detroit Beef Co. v. Holstein Com. considered the application to file the amended Co. (Mo. App.) 223 S. W. 790, and Grocery answer and counterclaim on February 15, Co. v. Thompson (Mo. App.) 216 S. W. 780. 1922, and denied the application. On FebThese were cases in which, under the con- ruary 20, the cause was laid over to Febtracts, no definite time was fixed for delivery. ruary 23, 1922, and on February 23, 1922, Under instructions 1 and 2 the right of plain- the plaintiff renewed its application in Divitiff to recover was submitted upon plaintiff'ssion No. 1, and its application was again overtheory, subject to defendant's defense there- ruled, and on that ground defendant asked to. Under that, if the jury found that there had been no extension of the time for delivery, the damages were assessable as of the time of the breach of the contract. The defendant asked no instruction upon the measure of damages assessable as of November, 1920. In this connection the plaintiff insists that, under the evidence as to the average market price of iron in St. Louis, in November, 1920, the damages, if assessed according to that price and as of that time, would have that the cause be continued. The application for the continuance was denied, and the cause assigned for trial in Division No. 13. The defendant renewed its application to file the counterclaim. Division No. 13 refused to review the action of Division No. 1, or to permit the filing of the counterclaim, and the cause was on that day taken up for trial. The court, Division No. 13, refused the application essentially upon the ground that the action of Division No. 1 would not be re |