cussed in the dissenting opinion by Sturgis, P. J. While the majority opinion in that case held the instruction there submitted to be vulnerable, it was conceded that an instruction on the burden of proof is not erroneous because it refers to the pleadings. The instruction in the instant case seems to be a stereotyped instruction given in the circuit comprising the city of St. Louis, as it is a rescript of instructions in other cases that have come to this court. While the instruction could be drawn with better avoidance of the rule against referring pleadings, we think the giving of same in the present form does not constitute reversible error. Especially is this true since plaintiff was allowed other instructions which fully defined the issues to the jury. Lackland v. R. Co., 101 Mo. App. 420, 74 S. W. 505. See, also, Brown v. R. Co., 104 Mo. App. 691, 78 S. W. 273. Some of the authorities to sustain us are briefly referred to. In Sherwood v. R. Co., 132 Mo. 339, 33 S. W. 774, it is decided that, if the instruction, though referring to the pleadings, simply tells the jury that the burden of proof rests upon the defendant to establish such issue as made by the answer, it is not reversible error. In Webb v. Baldwin, 165 Mo. App. 240, 147 S. W. 849, an instruction very similar to the one at bar was approved. Many other cases of like effect will be found in the dissenting opinion in the case of Williams y. Tucker, supra. See, also, Hartpence v. Rogers, 143 Mo. 623, 45 S. W. 650; Britton v. St. Louis, 120 Mo. 437, 25 S. W. 366. We have reached the view that in principle and on authority we may soundly rule that falling of said materials or articles, as you may find and believe from the evidence were at such place, and that in so placing said boards, and in the manner in which you can find and believe from the evidence they were placed, the defendant did not exercise reasonable caution and care under the circumstances, so as to prevent injury or accident to those that worked there or nearby," etc. [7] It is true, under plaintiff's petition, the defendant was required to exercise the highest degree of care. Plaintiff's instructions are bottomed upon the theory that the law required defendant to exercise only "reasonable caution and care," and such must be the theory here. We rule this contention against appellant. No objection was raised by appellant to instruction No. 5, given on behalf of defendant. Said instruction also required the plaintiff to prove that defendant was guilty of "negligence and carelessness" before plaintiff could recover. [8] So, considering the case on the theory submitted to the jury by the parties, we conclude there is no reversible error in instruction No. 4. Hypertechnical objections are not to destroy substantial justice. Error, in order to work a reversal of a judgment, must be such as causes harm and prejudice to the losing party. Judgment affirmed. BECKER and NIPPER, JJ., concur. the giving of instruction No. 4 is not subject S. F. BOWSER & CO., Inc., v. HARTNETT to the objection that it refers to the pleadings. et al. (No. 18821.) (St. Louis Court of Appeals. Missouri. June 18, 1925. Rehearing Denied July 7, 1925.) 1. Chattel mortgages 269-Equitable suit to determine conflicting claims to property and foreclose mortgage properly brought. Where there were conflicting claims to gaso [5, 6] It is next said that the instruction is bad, in that it directs the jury that negligence is not presumed, since under the facts of this case the law raises a presumption of negligence. In considering this proposition, we must have in mind, that, even though the petition alleges general negligence, if plain-line pumps sold by plaintiff, who took a chattel tiff offered proof showing specific acts of negligence which caused the injury and asks instructions submitting his right to recover upon specific acts so proved, the rule of res ipsa loquitur goes out of the case. Gibson v. Wells (Mo. App.) 258 S. W. 1; Heckfuss v. Am. Packing Co. (Mo. App.) 224 S. W. 99. The proof brought into the case sought to show specific acts of negligence on the part of the defendant. But even more distinctly plaintiff instructed on specific negligence, as is seen by the following portion of instruction No. 2, given at the instance of plaintiff : "And if you further find that said boards, so laid, used in and for the erection of said building, were not so secured as to insure the safety of persons passing under the same against the that plaintiff properly brought suit in equity mortgage to secure unpaid installments, held to find amount due, foreclose rights of all defendants, have rights of plaintiff declared superior to claims of subsequent purchaser, and have property sold and proceeds applied to the indebtedness and judgment entered for deficiency. 2. Chattel mortgages 150(1) — Subsequent purchaser charged with notice of mortgagee's rights by record of mortgage signed by agent. Where purchase-money chattel mortgage was, for accommodation of purchaser, signed by his agent as purchaser and mortgagor, the contract reciting that pumps were to be used by true purchaser at a given address, held that record of mortgage was notice to subsequent purchaser, under Rev. St. 1919, § 2256, since mortgage was within chain of title. (273 S.W.) Appeal from St. Louis Circuit Court; Mo- | defendants Larner and Ernest claimed an ses Hartmann, Judge. interest in said property by reason of the that his title and interest under the conveyforegoing, and that defendant Larner claims ance aforesaid are superior to the title and interest of plaintiff as mortgagee, and that Larner refuses to surrender said property to Suit by S. F. Bowser & Co., Inc., against John Hartnett and others. From a judgment granting insufficient relief, plaintiff appeals. Reversed and remanded, with directions. Grant & Grant, of St. Louis, for appellant. | plaintiff. Joseph Boxerman, of St. Louis, for respondents. DAUES, P. J. This is a suit in equity brought by appellant as mortgagee under a chattel mortgage given to secure the purchase price of certain gasoline pumps. Under the allegations of the petition the suit is to find the amount due plaintiff from defendant Hartnett; to foreclose the rights to said property of all defendants; to have the rights of plaintiff as mortgagee declared superior to all claims of defendant Larner; to have the property sold and the proceeds applied to the indebtedness due plaintiff; and to have judgment entered for any deficiency. The court sustained what is termed a "demurrer to the evidence" in favor of defendants Ernest and Larner, and denied the injunction prayed for, and rendered judgment in favor of the plaintiff against defendant Hartnett in the sum of $597.69. Plaintiff appeals. Defendant Larner, answered, first, by a general denial, and then pleaded that he was an innocent purchaser for value of the property; that he did not have any notice or knowledge of any kind that said property was mortgaged. Defendant Ernest answered separately, and denied that Hartnett conveyed to him as trustee for the East St. Louis Gasoline Company the property mentioned in the petition, and denied further that he attempted to foreclose under said mortgage, or that said property was ever covered by any mortgage of the plaintiff securing any claim of the East St. Louis Gasoline Company. Defendant Hartnett, though duly summoned, filed no answer, but made default. Little dispute arises on the facts. The evidence shows that defendant Hartnett in December, 1920, was erecting a gasoline station at Delmar and Lake avenues in the city of St. Louis. One Norman B. Howard was his contractor, erecting the filling station for him. Plaintiff's salesman appeared and The petition alleges that Norman B. How- contracted to sell the necessary pumps and ard, on December 3, 1920, as agent for the equipment for said station. After the sale defendant John Hartnett, and in pursuance was agreed upon between plaintiff's agent of an agency contract existing between them, and Hartnett, the latter requested the conpurchased a gasoline filling outfit from plain- tractor, Howard, to sign the contract and tiff for $1,437.35; that $284.00 was paid at chattel mortgage, for the reason it is agreed the time, the balance being payable in nine that Howard as a contractor could buy the monthly installments. It is alleged that equipment cheaper. This was understood Hartnett, through his agent Howard, gave and suggested by plaintiff's agent, and so a chattel mortgage on said property to plain- Howard signed the contract and chattel morttiff to secure the deferred payments. It is gage, all being one paper. The defendant then alleged that the instrument of writing | Hartnett made the first payment of $284.50, was duly filed in the office of the recorder and thereafter the equipment was delivered of deeds in the city of St. Louis, and that thereafter there was paid the further sum of $672.44, but that the remainder of the purchase price is still due and unpaid, and that defendant Hartnett has failed to pay same, and that therefore there is due plaintiff on account of said indebtedness the sum of $480.44, together with interest and attorney's fees. The petition then alleges that, after the execution and delivery of the chattel mortgage and the recording of same, the defendant Hartnett attempted to convey said personal property to the defendant Ernest, as trustee for the East St. Louis Gasoline Company, to secure an indebtedness alleged to be due said company from Hartnett, and that thereafter, on or about May 15, 1922, Ernest as such trustee attempted to sell said property under said mortgage to defendant Larner, and that defendant Hartnett attempted to sell and convey said property to defendant Larner. It is then alleged that and installed at Delmar and Lake avenues in this city, and was used for some time by Hartnett. The contract, or bill of sale, containing the chattel mortgage was duly recorded January 4, 1921. Howard, as a witness, testified that he signed the contract and chattel mortgage in the presence of defendant Hartnett and one W. E. Grooms, plaintiff's salesman, and that he did so because Hartnett asked him to sign same, but that Hartnett himself made the first payment, and that the pumps were delivered to Hartnett and used by him; that the witness had no property interest in the filling station; and that he did not purchase the pumps for his own use. Witness Barton N. Grant testified that he, as attorney for plaintiff, made demand of defendant Larner in June, 1922, for possession of the pumps, and that Larner told him, he had bought same from John Hartnett, free and clear of all incumbrances. He also testified that the pumps were advertised for, that case that a chattel mortgage given to sale by defendant Ernest under a chattel mortgage. It is conceded that the contract of sale and chattel mortgage was executed in the name of Norman B. Howard, though in fact it was an accommodation for Hartnett. An examination of the chattel mortgage itself does not in express words disclose that Howard was acting as the agent of Hartnett. Larner on November 7, 1921, purchased the property here involved, purporting to be free from incumbrances and liens, from Hartnett, and was in possession of same from that date and at the time it was sought to enforce the mortgage. [1] Controversy arises on this appeal as to whether plaintiff has not mistaken his remedy. It is insisted by respondent Larner that there are no adverse claims or titles to be determined, and that the action should have been one for foreclosure of the chattel mortgage, and therefore purely legal. Appellant, however, claims that under the circumstances of this case, with successive liens on the property and conflicting claims of title to it, it was proper that the mortgage should be foreclosed in a court of equity. We rule this point against respondent. secure the purchase price of certain property mortgaged and the mortgage is properly filed of record; that then, even though it be signed by the agent or by the owner in a fictitious name, it is constructive notice to subsequent purchasers. In that case horses and harnesses were sold to a person under a false name, and a mortgage was taken back by the seller in the same name, and it was held that such a mortgage was constructive notice to the person dealing with the buyer under such name. However, regardless of the application of the Windle Case, to the facts at hand, we must look to the superior decision of our Supreme Court in the New England Bank Case, supra, to determine how the principles there announced are brought in contact with the facts of the case at bar. That case holds, in general terms, that a mortgage on personal property, made by one who is not the owner of the property, or made by the owner in a fictitious name, or made in the name of an agent, and placed on record, is not constructive notice to any one dealing with the owner in his true name. Judge Marshall in that case gives the reason for the rule, and such is that a fictitious name or the name of an agent "lies outside of the chain of title," and therefore imparts no notice. Conversely, then, dwelling on the reason of the rule, if the name of the agent or the owner is within the chain of title, then notice is given by the recording of the in [2] There is another question, however, which is decisive of the real question in the case as between plaintiff and defendant Larner. Defendant Larner insists that appellant's purported chattel mortgage, signed by Norman B. Howard and filed with the recorder of deeds, imparted no constructive no-strument. tice to him. If this be true, plaintiff's case It should be considered in this connection is taken up by the roots. Our Supreme Court, in the case of New England Nat. Bank v. Northwestern Bank, 171 Mo. 307, 71 S. W. 191, 60 L. R. A. 256, has ruled the proposition that a mortgage given by the owner of a chattel in the name of another person does not impart notice to a subsequent purchaser for value. Judge Marshall in that opinion said (loc. cit. 327 [71 S. W. 196]): "The weight of authority is that a mortgage on personal property made by one who is not the owner of the property or by the owner in a fictitious name, and placed on record, is not constructive notice to any one dealing with the owner in his true name. The reason of the rule is that such conveyances, in fictitious names or in the name of an agent, lie outside of the chain of title, and therefore impart no notice. This is the rule always as to real property. Crockett v. Maguire, 10 Mo. 34; Digman v. McCollum, 47 Mo. 372; Tydings v. Pitcher, 82 Mo. loc. cit. 384. And so far as mortgages are concerned the same rule must obtain as to chattels, if any efficacy is to be given to our registry acts. This is the doctrine that prevails elsewhere." Appellant relies upon the case of Windle v. Citizens' Nat. Bank, 204 Mo. App. 606, 216 S. W. 1020, wherein the Springfield So that, in that usually personal property is conveyed and title passes without a recorded contract of sale. Mortgaged personal property often passes to successive owners without a recorded title of such successive owners. order to revert back to determine ownership of personal property, often no knowledge is obtainable from the public records. Now, analyzing the case at bar, we have this situation: It is undisputed that this property was bought from the plaintiff by Howard, in fact, as the agent of the defendant Hartnett and at Hartnett's request. Howard signed the contract of sale and mortgage in his own name. The instrument conveying the property is a lengthy one. It names the plaintiff, S. F. Bowser & Co., Inc., as the seller, and Norman B. Howard as the purchaser. The property is described and the purchase price is fixed. The conditions of the payments are named, and sets out "that the purchaser hereby sells, conveys, and mortgages to S. F. Bowser & Co., Inc., the said described goods." It is a contract of sale, and is a mortgage back to plaintiff for the unpaid balance of the purchase price. The paper is signed "Norman B. Howard, Purchaser. Contractor." The instrument stipulates that the property purchased is to be (273 S.W.) seller executes a written contract of sale to an agent in his name as purchaser, and the agent in his own name as such purchaser in the same instrument gives a mortgage to the seller. Then, so far as the record is concerned, there was a sale by the Bowser Company to Howard, and Howard executed a mortgage to the Bowser Company. The property, even though passing from one to another subsequently, is subject to this mortgage, and especially is that true since the instrument itself states that the property is to be used by Hartnett at a given place. We are led to the conclusion, though we have reached it with difficulty, that it is within the reasoning of Judge Marshall's opinion in the New England Bank Case, that the recording of this mortgage did give constructive notice to subsequent purchasers. but that the property is to be used by "John | here we have the additional fact that the Hartnett at 5174 Delmar, St. Louis, state of Missouri." This is the recorded instrument. Of course, no question can arise that it was a mortgage in favor of plaintiff signed by Howard, contractor. In the same paper the property is conveyed by Bowser & Co. to Howard to be used by Hartnett at 5174 Delmar avenue in this city. Now, can we say under those facts that the mortgage of the agent, Howard, lies outside of the chain of title? If the mortgage executed by Howard is within the chain of title, then under the reasoning in the New England Bank Case, supra, the general rule that a mortgage by an agent gives no constructive notice does not apply. It was our impression, when this case was first considered, that the recording of the chattel mortgage by the agent, Howard, gave no notice to a subsequent purchaser under the rule laid down in the New England Bank Case. However, upon reflection, we have reached a different view. There is one instrument recorded; it is the contract of sale between the plaintiff and Howard. Then, so far as the record standing alone is concerned, title passed to Howard in his true name. The mortgage was contained in the same instrument, and ran from How ard, the purchaser, to the plaintiff, the seller, and in this very instrument it is stipulated that the property is to be used by Hartnett at a given address, where, the testimony shows, the property was in fact installed, and where the respondent Larner bought same. From what we have said, it follows that The recording of this instrument gave no- the judgment should be reversed and the tice of the contents thereof under section cause remanded, with directions to the trial 2256, Revised Statutes Missouri 1919. This court to enter a decree foreclosing the rights is not such a case as where the owner of to the property of all parties defendant and personal property executes a mortgage in a decreeing plaintiff's right as mortgagee sufictitious name, or executes a mortgage in perior to the claims of defendant Larner, the name of an agent and same is placed on ordering the property sold to satisfy the inrecord and nothing more. Under that char-debtedness due plaintiff under the mortgage, acter of a case a subsequent purchaser would not have constructive notice of a mortgage on the property, because the mortgage lies entirely outside of the "chain of title." But Reverting again to the Windle Case, supra, the case at bar differs only in the fact that the mortgage was there assigned in a fictitious name, while here it is signed in the name of an agent. The reasoning is the same. In the Windle Case plaintiff conveyed title to the property, and immediately received it back in the same name. Here we have a record of the transfer from Bowser & Co. to the mortgagor, not only in the same name, but actually in the same instrument in which it is conveyed. The mortgage therefore does not lie outside of the chain of title. and entering judgment against defendant Hartnett for any deficiency. It is so ordered. BECKER and NIPPER, JJ., concur. PABST BREWING CO. v. CHICAGO, M. & 1. Carriers 45-Whether beverage which carrier refused to ship into dry state was beer, and was properly iced and preserved until examined, held for jury. Whether beverage which carrier refused to carry into dry state was beer, and whether it was properly iced and preserved by carrier from time of arrival at point outside such state until delivery to state chemist for examination, held for jury. 2. Carriers 45-Carrier receiving shipment, cannot set up deception by appearance as defense to action for refusal to ship into dry state. Carriers receiving shipment of beverage, with same information subsequently possessed, cannot say, as defense to action for damages from refusal to ship it into dry state, that they were deceived by appearance of shipment when it reached point beyond which they refused to transport it. 3. Carriers 45-Whether shipment of beer into state was unlawful at time of carrier's refusal to do so held for jury." Whether it would have been unlawful to introduce beer into Arizona at time of carrier's refusal to ship beverage into such state held for jury, on evidence warranting inference of carrier's knowledge that it was not for consignee's personal use. On Motion for Rehearing. 4. Evidence 591-Carriers held not bound by testimony of their witnesses that beverage they refused to transport was not beer. Carriers sued for damages from refusal to transport beverage into dry state held not bound by testimony of plaintiff's brew master and chemist, put on stand by defendants, that beverage shipped was not beer, in view of evidence contradicting them. 5. Carriers 175-Terminal carrier bound by initial carrier's knowledge of appearance of shipment when received for transportation. As connecting carrier is initial carrier's agent in forwarding goods, and initial carrier is agent of terminal carrier in making contract of carriage, latter is bound by initial carrier's knowledge of appearance of shipment of beverage when received by initial carrier for transportation into dry state. Ringolsky, Friedman & Boatright, of Kansas City, for respondent. BLAND, J. This is an action for damages suffered by plaintiff on account of the failure of defendants to deliver at Globe, Ariz., a carload of pablo accepted by the defendants for transportation to that point. At the constructed the jury to find for plaintiff, leavclusion of all the testimony the court ining only the amount of the verdict to be determined by them. pealed. Defendants have ap This case was here before. See Pabst Brewing Co. v. Chicago, Milwaukee & St. Paul Ry. Co. et al., No. 13441. The former trial resulted in a verdict for the defendants, which, however, was set aside by the trial court, and defendants appealed. This court reversed and remanded the case, with instructions to the trial court to reinstate the verdict for defendants. It was held in that appeal that, as a matter of law, defendants were deceived by the appearance of the shipment, but the opinion was never published for the reason that it was quashed, at least in part, by the Supreme Court. See State ex rel. v. Ellison, 286 Mo. 225, 226, S. W. 577. The facts show that plaintiff was a brewery located in the city of Milwaukee, Wis., and had been largely engaged in brewing beer and shipping it to customers throughout the country; that it was and had been mak ing real alcoholic beer for nearly 75 years; that only in the last three or four years prior to the time of the shipment of the beverage in question did it manufacture what is known and called "pablo." On January 31, 1916, it delivered to defendant Chicago, Milwaukee & St. Paul Railway Company 170 half barrels of pablo to be shipped to Globe, Ariz. The bill of lading was made out by plaintiff, and recited that the shipment contained "170 half barrels of pablo, an unfermented, carbonated, nonalcoholic beverage"; that the Milwaukee Railroad had received the property described in it, "contents and condition of contents of packages unknown." The car containing the beverage was delivered at El Paso, Tex., to the connecting carrier, the defendant Southern Pacific Company, and transported by that company to Lordsburg, N. M., the last station in New Mexico before that railroad crossed into the state of Arizona. The Southern Pacific refused to carry the car into Arizona, claiming that to do so would violate the Appeal from Circuit Court, Jackson Coun- constitution of the state of Arizona relating ty; O. A. Lucas, Judge. Action by the Pabst Brewing Company against the Chicago, Milwaukee & St. Paul Railway Company and another. Judgment for plaintiff, and defendants appeal. versed and remanded. Re to the introduction into that state of certain beverages, including beer and intoxicating liquors. Defendants' refusal to carry the shipment resulted, after a period of five months, in an agreement between plaintiff and the Southern Pacific Company that the latter empty Fred S. Hudson and Watson, Gage & Ess, the beverage and return the cooperage to all of Kansas City, for appellants. plaintiff, all to be done without prejudice to |