es that may bring them in contact with wires and other instrumentalities which convey and carry the energy; and this is the degree of care that an ordinarily prudent person will exercise. Geismann v. Electric Co., 173 Mo. 654, 73 S. W. 654; Harrison v. Electric L. Co., 195 Mo. 606, 93 S. W. 951, 7 L. R. A. (N. S.) 293; Clark v. Railroad, 234 Mo. 396, 137 S. W. 583; Gannon v. Laclede Gaslight Co., 145 Mo. loc. cit. 512, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505; Davenport v. Electric Co., 242 Mo. 111, 145 S. W. 454; Campbell v. United Rys. Co., 243 Mo. 141, 147 S. W. 788; Campbell v. Springfield T. Co., 163 S. W. 287, and cases cited. This proposition is not denied by appellant, but it contends that, as the wires were placed on poles at a height of from 22 to 25 feet above the surface of the street, it could not reasonably anticipate that plaintiff would climb up and come in contact with them, and that, placed as they were, it owed the plaintiff no duty to insulate or take any other precaution than the evidence shows it did take, citing Brush El. L. & P. Co. v. Lefevre, 93 Tex. 604, 57 S. W. 640, 49 L. R. A. 771, 77 Am. St. Rep. 898. That is a case very similar to the case at bar, and, were we required to follow the law therein declared, the result of this appeal might be different. There is, however, this difference in the evidence: In that case the opinion discloses that no one was ever known to get upon the awning where the deceased was killed, whereas in our case the evidence is that, in the city of Carterville, a great number of houses are moved along the public streets, and in fact at some time, six or seven years ago, this particular wire had given trouble to a house mover at this street crossing; and there is in our case the additional fact that only the day before the injury occurred the servants of this defendant helped plaintiff move this house under its trolley wire at a point several blocks distant from the place of the contact. The case of Winegarner v. Edison El. L. & P. Co., 83 Kan. 67, 109 Pac. 778, 28 L. R. A. (N. S.) 677, is directly in point, and in the opinion is found this language: "There is evidence that the company had notice of the moving of this building. Whether it had notice of its passing the particular spot where the accident occurred or not is not shown, but there is evidence tending to show that the moving of buildings was of so frequent occurrence that the defendant must have taken notice of such use of the streets." The opinion also holds that it is a matter of common knowledge that wires carrying only a light voltage, like, for instance, a telephone wire, are not liable to produce any injury by contact. We think that is a wellreasoned opinion, and that it has the approval of the great weight of authority. The correct rule of law is stated in the case of Milwaukee & St. Paul Ry. Co. v. Kel "But it is generally held that, in order to warrant a finding that negligence, or an act not cause of an injury, it must appear that the inamounting to wanton wrong, is the proximate jury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances." See, also, Brush El. L. & P. Co. v. Lefevre, 93 Tex. 604, 57 S. W. 640, 49 L. R. A. 771, 77 Am. St. Rep. 898; Wilt v. Coughlin, 161 S. W. 888; Teis v. Smuggler Min. Co., 158 Fed. 260, 85 C. C. A. 478, 15 L. R. A. (N. S.) 893; Brubaker v. Kansas City El. L. Co., 130 Mo. App. 439, 110 S. W. 12. The rule is also well stated in Cole v. German Sav. & L. Co., 124 Fed. 113, 59 C. C. A. 593, 63 L. R. A. 416. In our case it is shown that houses are frequently moved along the streets of Carterville, from which it necessarily follows that, in doing so, they may come in contact with any wires that are in the way and which must therefore be raised or removed. Hence it cannot be declared, as a matter of law, under such circumstances, that the act of the plaintiff was so exceptional and unheard of that a reasonably prudent person, exercising the highest degree of care in stringing wires in Carterville, would not have anticipated that those engaged in the house moving business would come in contact with them, and the wire in question, strung as it was, was highly dangerous when a contact was made with the telephone wires alongside of it. Besides, on a previous occasion the defendant had trouble with this particular wire coming in contact with the telephone wires when a house was being moved thereunder, and it therefore cannot say the occasion was unheard of and unprecedented. Harrison v. Electric Co., 195 Mo. 606, 93 S. W. 951, 7 L. R. A. (N. S.) 293; Hoepper v. Southern Hotel Co., 142 Mo. 378, 44 S. W. 257; Day v. Consolidated L. & P. Co., 136 Mo. App. 274, 278, 117 S. W. 81; Graney v. Railway Co., 140 Mo. loc. cit. 98, 41 S. W. 246, 38 L. R. A. 633. [7] The plaintiff cannot be held guilty of Contributory negligence, as a matter of law, for deliberately and voluntarily taking hold of this uninsulated wire, for the reason that the evidence shows that it was strung among 10 or 15 similar looking uninsulated telephone wires that were entirely harmless in themselves, and, but for the connection made by taking hold of them with this live wire, no harm would have resulted. It is not a case of a person knowingly laying hands on an obviously uninsulated wire which he could be held, as a matter of law, to know or by reasonable prudence would have suspected was charged with dangerous current. It would indeed be strange for the triers of the fact to find that he was guilty of contributory negligence, as a matter of fact, in attempting to lift what appeared to be harmless telephone wires among which was hid Appellant claims that plaintiff's instruc- [5. MECHANICS' LIENS (§ 260*) VALIDITY tion No. 1 put the case to the jury on the ENFORCEMENT-SEPARATE PROPERTY. Where plaintiff filed a blanket lien against humanitarian doctrine. This is without several houses for labor and materials in conmerit, because the instruction expressly re-structing certain furnaces therein, all the maquires that the jury find, as a prerequisite terials furnished and all of the labor done on all to recovery, that the plaintiff was himself free from negligence. [8] The defendant was not entitled to its refused instruction H because it held plaintiff guilty of contributory negligence unless he wore rubber gloves. Such precaution on his part might have been the safest method of handling the wires, yet it was for the jury to decide whether the way in which he did undertake to lift the wires was such as a reasonably prudent person would have adopted. The instructions given are in accord with the holdings of this opinion, and those refused advanced the defenses which we have held to be untenable in this case. The judgment is affirmed. ROBERTSON, P. J., and STURGIS, J., concur. HILLER v. SCHULTE et al. (No. 13292.) (St. Louis Court of Appeals. Missouri. Dec. 31, 1913. Rehearing Denied June 6, 1914.) 1. LIMITATION OF ACTIONS (§ 124*) COMMENCEMENT OF ACTION-PARTIES JOINED BY AMENDMENT. the houses being included in one general lien account, with no attempt to separate the labor and materials furnished for and used in the different houses, and plaintiff was not entitled to a lien for the work and materials furnished for one of the houses which had previously been sold to defendant D., the lien was unenforceable in toto. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 456, 458-468; Dec. Dig. § 260.*] Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge. Action by Charles Hiller against Louis C. Schulte and others. Judgment for plaintiff, and defendants appeal. Reversed, without remand. Wm. L. Igoe and R. M. Nichols, both of St. Louis, for appellants. H. D. McCorkle, of St. Louis, for respondent. ALLEN, J. This is an action to enforce a mechanic's lien for work and labor done and materials furnished for and upon 13 two-story brick buildings, and the lots of ground upon which they are situated, located in the city of St. Louis. The lien statement was filed on June 16, 1906, and states that the work and labor done and materials fur Where parties are brought in by amend-nished, as shown by the account therein set ment, the suit as to them is begun at the time forth, were furnished by the said lienor unthe amendment is filed. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 541; Dec. Dig. § 124.*] 2. LIMITATION OF ACTIONS (§ 124*)-MECHANICS' LIENS-ENFORCEMENT-NEW PARTIES. In a suit to enforce a mechanic's lien, new parties defendant cannot be brought in by amendment so as to affect their rights after the expiration of 90 days from the filing of the lien. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 541; Dec. Dig. § 124.*] 3. LIMITATION OF ACTIONS (§ 124*) СомMENCEMENT OF ACTION-TIME-JOINING PAR TIES BY AMENDMENT. The rule that the filing of a petition is the commencement of an action, and that subsequent amendments properly made relate to the institution of the suit, is applicable only to the defendants originally sued, and not to parties brought in by such amendment. der contract with defendant Louis C. Schulte. The account itself runs against "Louis C. Schulte (M. P. Hynson, agent)," and is for certain furnaces and pipes and other accessories pertaining thereto, and for certain work and labor done in and about installing all of the same. Eleven of the buildings in question are upon contiguous lots fronting on Etzel avenue in the city of St. Louis, and two thereof upon adjacent lots fronting upon Clara avenue, and separated from the others by a private alley. On September 13, 1906, plaintiff instituted this action to enforce the lien. In his petition filed at said time plaintiff named as defendants Louis C. Schulte, Montrose P. Hynson, W. M. McDade, F. W. Lovett, Chas. [Ed. Note.-For other cases, see Limitation C. Nichols, trustee, and Frank C. Burdett. of Actions, Cent. Dig. § 541; Dec. Dig. The original petition does not appear in the 124.*] 4. LIMITATION OF ACTIONS (§ 124*)-MECHANICS' LEINS-ENFORCEMENT-PARTIES. Where defendant D. became the owner of one of several houses against which a mechanic's lien was sought to be enforced for the furnishing of materials and labor in the construction of furnaces therein, prior to the time the materials were furnished, and the work done, and she was not made a party to the suit to enforce the lien until more than 90 days after the filing thereof, it could not be enforced against her property. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 541; Dec. Dig. § 124.*] record. Subsequent to the institution of the suit, Hynson was adjudged a bankrupt, and on February 19, 1909, plaintiff filed what is designated as a "statement of parties in interest," and asked leave to make certain other persons defendants. The court granted this request, and on March 17, 1909, plaintiff filed an amended petition naming, in addition to the original defendants, the other parties as defendants in the cause, viz.: Wm. R. Orthwein, trustee in bankruptcy of M. P. Hynson, and certain other persons who were described in the amended petition as persons | not begun as to Florence M. Dale within 90 to whom portions of the property had been conveyed, or who held deeds of trust thereon. The amended petition avers that at the dates of furnishing the materials and labor in question defendant Schulte held title to the property, but held it in fact in trust for Hynson, to whom it in reality belonged. On behalf of all the parties who were made defendants on March 17, 1909, excepting defendant Florence M. Dale, demurrers were filed, upon the ground that they were made parties within 90 days after the filing of the lien, and also, as to a part of them, that they were neither necessary nor proper parties defendant, having purchased after the filing of the lien. These demurrers were overruled. Florence M. Dale, who was made a party defendant by the amendment, filed a motion to dismiss as to her, for the reason that it appeared from the record that the suit had not been instituted against her within the time required by law. This motion was also overruled. And as to the parties made defendant on March 17, 1909, the answers filed set up that the suit was not instituted against these defendants within the period allowed by statute in which to institute an action for the enforcement of a mechanic's lien after the filing of the same. The cause was referred to Benj. J. Klene, of the St. Louis bar, to try all of the issues. The referee duly heard the testimony and filed his report in the cause, wherein he made a very complete finding of facts, and recommended a judgment sustaining the lien. The court overruled the exceptions filed to the referee's report, and the case is here upon defendants' appeal. In the view which we take of the case, it is unnecessary for us to set out the rather lengthy findings of the referee; but we shall confine ourselves to such of the facts as are essential to the determination of the case as we view it. On October 12, 1904, Schulte, who then held the title to the property, conveyed the various lots, described in plaintiff's petition, by separate deeds of trust, to Chas. C. Nichols, as trustee for Fred W. Lovett, to secure certain promissory notes. Thereafter the said buildings were erected on the various lots, and on June 2, 1905, defendant Schulte conveyed to Florence M. Dale one of these lots, with the house and other improvements thereon, subject to one of the aforesaid deeds of trust. At the time that defendant Florence M. Dale acquired this house, no furnace had been installed therein, and it appears that Hynson, for whom Schulte held the title, and who really owned the property, agreed with Mrs. Dale that a furnace would be provided and installed in it. Later this was done, at or about the time when the furnaces were installed in the other buildings, to wit, about November, 1905. days after the filing of the lien as required by section 8228, Rev. St. 1909. The action was instituted within the prescribed 90 days, to wit, on September 13, 1906; but Florence M. Dale was not made a party thereto until March 17, 1909, about 21⁄2 years thereafter. And it is well settled that, where parties are thus brought in by an amendment, the suit as to them is begun at the time of such amendment making them parties. The amended petition as to them is the filing of a new suit. And as an action to enforce a mechanic's lien must be brought within 90 days after the filing of the lien, after the lapse of that time new parties cannot be brought in by amendment and be thus affected by the proceeding. See Lumber Co. v. Staley, 141 Mo. App. 295, 125 S. W. 779; Rumsey v. Pieffer, 108 Mo. App. 486, 83 S. W. 1027; Bombeck v. Devorss, 19 Mo. App. 38; Fury v. Boeckler, 6 Mo. App. 24; 27 Cyc. 344; Watson v. Gardner, 119 Ill. 312, 10 N. E. 192. See, also, Riverside Lumber Co. v. Schafer, 251 Mo. 539, 158 S. W. 340; Smith v. Barrett, 41 Mo. App. 460; Forrey v. Holmes, 65 Mo. App. 114; St. Joseph v. Baker, 86 Mo. App. 310; Jaicks v. Sullivan, 128 Mo. 177, 30 S. W. 890. In Fury v. Boeckler, supra, this court said: who claims under it must bring himself within "The proceeding is special, and the person its special provisions. The 90 days after which no lien is to continue to exist, unless the conditions of the law are complied with, are not provided as a period of repose to bar actions; on the contrary, they are a limit to the existence of the lien.' And to the same effect is Lumber Co. v. Staley, supra, where the immediately foregoing excerpt is quoted approvingly. And such is likewise the rule with respect to the existence of the lien of a special tax bill. See Smith v. Barrett; Forrey v. Holmes; St. Joseph v. Baker; Jaicks v. Sullivan, supra. [3] Though it is well established that the filing of the petition is the commencement of an action, and that the general rule is that subsequent amendments properly made to the petition relate back to the institution of the suit, nevertheless this is applicable only to the defendants originally sued, and not to new parties brought in by any such amendment. See Jaicks v. Sullivan, supra, 128 Mo. loc. cit. 186, 30 S. W. 890. [4] In the instant case it is beyond dispute that defendant Florence M. Dale, the owner of one of the 13 lots, with the improvements thereon, described in plaintiff's petition, and against which the lien is sought to be enforced, acquired her title thereto prior to the time when the lien, if any, attached to the same. She was not made a party to the suit within the prescribed time, and therefore is not affected by the proceeding; and, as to her property, the lien must fail. As she was the owner of this house and lot at the time of the furnishing of the materials and the do the only theory upon which a lien could be established against such property is that, by virtue of Hynson's agreement with her to install a furnace therein, the latter was her agent in making the contract with respect to the furnishing of the material and labor to and for her building. Be this as it may, she was not made a party to the proceeding during the period for which the lien, as to her property, continued in existence, and she is not bound by the judgment. See authorities supra; also McLundie v. Mount, 145 Mo. App. 660, 123 S. W. 966; Nold v. Ozenberger, 152 Mo. App. 439, 133 S. W. 349. possible to tell what portion thereof was furnished to or for the Dale house. The record shows that the other houses and lots are now owned by various persons, and these houses and lots cannot be made to bear the burden of the entire lien. In such cases the entire lien must necessarily fail. See Schulenburg v. Vrooman, 7 Mo. App. 133; McAdow v. Miltenberger, 75 Mo. App. 346. There are various other questions involved in the appeal, and whether the judgment could be sustained against all other attacks made thereupon is a matter not free from doubt; but, in the view which we take of the case, it becomes unnecessary to discuss the other assignments of error, since we think it perfectly clear that the lien must fail for the reasons stated above. Learned counsel for respondent has cited us to Matthews v. Stephenson, 172 Mo. App. 220, 157 S. W. 887, as authority for the proposition that persons interested in the property against which the lien is sought to be enHynson, who, it is said, as the real owner, forced may be brought in and made parties contracted with plaintiff for the furnishing defendant even after the lapse of 90 days of the materials and labor in question, died after the filing of the lien. An examination during the pendency of the suit. It appears of that case, however, readily discloses that that an application for letters of administrathe action was there instituted against all of tion upon his estate was denied, and an orthe defendants in the first instance, though der of no administration thereon made by summons was not issued against the holder the probate court; and hence there was no of a deed of trust until after the 90 days had revival of the cause against his executor or elapsed. And as we have said, the rule is administrator. With regard to this, the refwell established that the filing of the petitioneree found that, since it was impossible to is the commencement of the suit, even though summons may not issue until some time later. See South Missouri Lumber Co. v. Wright, 114 Mo. 326, 21 S. W. 811. Hence in the Matthews Case it was not sought, as here, to bring in parties by an amendment made more than 90 days after the filing of the lien; and that case does not support respondent's con tention. find any one against whom a personal judg- be rendered herein. As to For the reasons given above, the judgment of the circuit court must be reversed, without remanding the cause. It is so ordered. doubtful. [5] It must follow that, under the circumstances of this case, plaintiff's lien must fail in toto. This for the reason that the lien sought to be enforced is a blanket lien against all of the property mentioned in NORTONI, J., concurs. REYNOLDS, P. plaintiff's petition, of which that of Florence J., agrees to the result, although somewhat M. Dale forms a part. All of the materials furnished and all of the work and labor done for and upon all of the houses in question is included in one general lien account, consisting of a great many different items, and with no attempt made to separate the various items of labor and materials furnished for and upon the different houses. Liens have frequently been upheld against 1. PARTNERSHIP (§ 22*) -EXISTENCE - CON In re WHITLOW'S ESTATE. SKINNER v. WHITLOW. (No. 13079.) (St. Louis Court of Appeals. Missouri. 4, 1913. Rehearing Denied Jan. 20, 1914.) TRACTS. Nov. A partnership, as between the members, results from their agreement evidencing an intention to create a partnership. [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 1, 7, 8; Dec. Dig. § 22.*] 2. PARTNERSHIP (§ 22*) — EXISTENCE - CON TRACTS. one or more of several houses where materials were furnished to all under one contract, where it was possible to identify the particular materials which went into the building or buildings against which the lien was sought to be enforced. See Lumber Co. v. Realty Co., 150 Mo. App. loc. cit. 69, 130 S. W. 822, and cases cited. There was here no attempt to identify the particular material or labor which went into or was performed upon any particular house. Aside from the furnaces, the account shows many different [Ed. Note.-For other cases, see Partnership, items of material and labor, and it is im- Cent. Dig. §§ 1, 7, 8; Dec. Dig. § 22.*] Where parties entered into a written agreement, the question whether they formed thereby a partnership must be determined by ascertaining their intention from a construction of the writing itself, in view of the surrounding circumstances. 3. PARTNERSHIP (§ 9*) — EXISTENCE TRACTS. CON An agreement between a contractor for railroad work and S., which shows that the contractor desired that S. should superintend the work, and that in consideration thereof he should receive a half of the proceeds, did not create a partnership between them, especially where it appeared that the contractor had an outfit for the work. [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 23, 24; Dec. Dig. § 9.*] 4. CONTRACTS (§ 147*) - CONSTRUCTION-INTENTION OF PARTIES. The court in construing a contract must ascertain the actual intention of the parties as expressed in the writing employed by them and consistent therewith. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147.*] 6. WITNESSES (§ 140*) — TRANSACTIONS WITH DECEASED PERSONS. On hearing exceptions to the final settlement of the administrator of a partnership estate, testimony of the administrator to transactions and conversations between himself and decedent was incompetent. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. $$ 598-618; Dec. Dig. § 140.*] 7. WITNESSES (§ 175*)- TRANSACTIONS WITH DECEASED PERSONS. Where, on the hearing of exceptions to the final settlement of the administrator of a partnership estate, the exceptor introduced portions of a referee's report as bearing on the question of res judicata, to show that the existence of a partnership had been litigated in a former cause, the administrator was not thereby rendered competent to testify to transactions and conversations with decedent, merely because the report contained incompetent testimony of the administrator. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 711-713, 715, 720, 721, 915; Dec. Dig. 175.*] 8. WITNESSES (§ 175*) — TRANSACTIONS WITH DECEASED PERSONS. A party filing exceptions to the final settlement of an administrator of a partnership estate did not waive the incompetency of the administrator to testify to transactions with decedent, by introducing a referee's report as bearing on the question of res judicata to show that the existence of a partnership had been litigated in a former cause, though the report contained incompetent testimony of the administrator. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 711-713, 715, 720, 721, 915; Dec. Dig. 175.*] 9. APPEAL AND ERROR (§ 931*)-FINDINGSREVIEW. Where a cause was tried by the court without a jury, it will not be presumed that any incompetent testimony contained in a referee's report received in evidence had any influence on the court, especially where like testimony was expressly excluded. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. § 931.*] 10. EXECUTORS AND ADMINISTRATORS (§ 29*)— APPOINTMENT OF ADMINISTRATOR-TITLE OF ADMINISTRATOR. One acting as administrator under a valid title to the assets, and he holds the property as appointment good until set aside has a qualified trustee for those entitled to share therein. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 177-182, 1411; Dec. Dig. § 29.*] 11. PARTNERSHIP (§ 251*)-DEATH OF PART NER-TITLE OF ADMINISTRATOR. An administrator of a partnership estate is not entitled to possession of chattels not the assets of the partnership as between the deceased partner and the administrator. [Ed. Note.-For other cases, see Partnership, Cent. Dig. §§ 536-539; Dec. Dig. § 251.*] 12. EXECUTORS AND ADMINISTRATORS (§ 482*) -FINAL SETTLEMENT-CREDITS. The court, on the final settlement of an administrator, properly refused a credit taken by the administrator for the premium paid on his bond as administrator. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 2066; Dec. Dig. § 482.*] 13. EXECUTORS AND ADMINISTRATORS (§ 111*) - FINAL SETTLEMENT ATTORNEY'S FEESALLOWANCE. The court, on final settlement of an administrator, may allow reasonable attorney's fees for services rendered the estate. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 448-462; Dec. Dig. § 111.*] 14. EXECUTORS AND ADMINISTRATORS (§ 510*) -SETTLEMENT OF ACCOUNTS—APPEAL-PRESUMPTIONS. A credit, allowed by the probate court on final settlement of an administrator for moneys advanced to the estate, must be presumed to be proper in the absence of any evidence to the contrary. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 2235-2256; Dec. Dig. § 510.*] 15. PARTNERSHIP (§ 252*)—ACCOUNTING-LIABILITY-STATUTORY PROVISIONS. Rev. St. 1909, §§ 240, 241, authorizing the probate court to give credit to an administrator for debts charged in the inventory as due the estate, where it is satisfied that the debt could not be collected by due diligence, etc., are applicable to partnership assets by reason of section 99, and the administrator of a partnership estate is entitled to credit for debts, charged in the inventory as due the estate, where the same could not be collected by the exercise of due diligence. [Ed. Note.-For other cases. see Partnership, Cent. Dig. 88 540-543; Dec. Dig. § 252.*] 16. EXECUTORS AND ADMINISTRATORS (§ 111*) -COUNSEL FEES-ALLOWANCE. An administrator cannot, as a general rule, be allowed counsel fees incurred for services rendered in defense of his own personal interest, or where the litigation is in reality between the beneficiaries, and not for the benefit or in the interest of the estate as a whole. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 448–462; Dec. Dig. § 111.*] |