court of equity will allow the set-off notwithstanding the assignment, when a court of law would not, and in cases where, though the right to set-off had not actually accrued at the time of the assignment, yet a liability then existed under which a right of set-off against an insolvent debtor subsequently accrues." The bank took this assignment of the Ford judgment with full knowledge that Ford had a legal claim against the Stevens Motor Car Company for something like $5,000. The liability of the Stevens Motor Car Company to Ford was an existing one at the time the assignment was made. The transaction between the Stevens Motor Car Company and the bank was consummated and finally made a matter of record on the very day the case of Ford v. Stevens Motor Car Company went to trial. The fact that the Stevens Motor Car Company was insolvent when Ford's judgment against it was obtained, and also at the time it was assigned, and the bank having full knowledge of Ford's claim, and of the insolvency of the motor car com pany, afforded sufficient ground to warrant the lower court in holding that an equitable right of set-off existed against the judgment and was not affected by the assignment. And as was stated in Coonan v. Loewenthal, supra, 147 Cal. loc. cit. 225, 81 Pac. 530: "This equitable right of set-off existing between the parties at the time of the rendition of the judgment in favor of Coonan clung to that judgment, and the assignee took it subject thereto." The question of the preferment of bona fide creditors is not involved in this case. [5] Appellants' last and final contention is that the court erred in admitting the deposi tions of Kammerer and Stevens, as they were both present in the courtroom. Counsel for respondent offered these depositions as declarations against interest, and the court admitted them as such. After the reading of the depositions by respondent's counsel, both Kammerer and Stevens were placed upon the stand by appellants, and therefore the error, if any, was cured by appellants placing the Richardson v. witnesses upon the stand. Railroad, 166 Mo. App. 162, 147 S. W. 1126; Briscoe v. Huff, 75 Mo. App. 288; Rounsa vell v. Pease, 45 Wis. 506. This disposes of the questions raised by appellants. Upon a full and fair review of all the facts in this case, we think the judgment was for the right party. The Commis sioner recommends that it be affirmed. ROBERTS v. WEBER MOTOR CAR CO. (No. 16553.) Therefore, we rule against appellants' contention with respect to this phase of the (St. Louis Court of Appeals. Missouri. June 7, 1921. Rehearing denied June 24, 1921.) case. Sales 391(9)—Error not to permit defendant to prove performance in action to recover purchase price deposited. [4] We now pass to the next point made by appellants, namely, that the Ford judg-1. ment against the Stevens Motor Car Company was pending in this court on appeal at the time the set-off was allowed, and was In an action by a purchaser of an autonot a final judgment; the appellants con- mobile to recover part of purchase price detending that even though this judgment has posited with seller, court erred in refusing to permit defendant to introduce testimony tendsince been affirmed by this court, we will ing to show that it had carried out in every not take judicial notice of this fact. How-way its part of the contract with respect to the ever, this motion to set off was merely a purchase price of the car, since plaintiff could supplementary proceeding in the main case, not recover such money if defendant was and not an entirely distinct and independent ready, willing, and able to carry out its part of suit, but was an action with direct reference the contract, and plaintiff refused to carry out to the judgment in the main case. Perhaps his part of the agreement without just cause. the correct and better way would have been 2. Witnesses 379 (8)-Testimony in another for the trial court to have continued the motion pending the decision of the case on appeal; but not having done so, and this not being regarded as an entirely independent cause of action, we will take judicial notice of our record affirming the judgment of the lower court, and not do a useless and unnecessary thing by reversing this judgment under such circumstances. Spengler v. Kaufman & Wilkinson, 43 Mo. App. 5; 15 R. C. L. p. 112, § 43. case only competent in impeachment. Testimony of defendant in another case was only competent for the purpose of impeachment in a latter case in which defendant tes tified. Appeal from St. Louis Circuit Court; Samuel Rosenfeld, Judge. "Not to be officially published." Action by E. Mason Roberts against the Weber Motor Car Company. Judgment for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) plaintiff, and defendant appeals. Reversed he had contracted to purchase, he was ready and remanded. and willing to pay for it. On the 5th of June following plaintiff again received a letter from defendant stating: See, also, 203 Mo. App. 509, 219 S. W. 994. Henry E. Haas and John B. Dempsey, both of St. Louis, for appellant. "We are somewhat disappointed over the fact McLaran & Garesche and E. H. Wayman, that you have not made any effort to take out all of St. Louis, for respondent. NIPPER, C. This action originated before a justice of the peace in the city of St. Louis. Plaintiff seeks to recover $100 on the first count of his petition, being the amount of money delivered to defendant as part payment for the purchase price of a Studebaker automobile. The second count is for $74, which it is alleged was wrongfully applied by defendant on account. · This cause in some way reached the circuit court, and on a trial de novo there was a finding and verdict for defendant on the second count in the petition. On the first count the court gave a peremptory instruction to find for the plaintiff in the sum of $100. The jury returned a verdict for plaintiff for $100, with interest at 6 per cent., amounting in all to $106.70. Defendant appeals. The evidence on the part of the plaintiff discloses that a prior suit between the same parties had been filed, in which the defendant here was plaintiff, in which action it was sought to recover from Roberts, the plaintiff here, the purchase price of a Stude baker car, on account of which he had deposited the $100. There seems to have been some controversy with respect to carrying out the contract. This $100 was deposited about the 24th of September, 1913, and the car was to be delivered "on or about as soon as possible." Plaintiff's evidence is rather evasive as to why he did not receive the car which he had contracted to purchase. It appears that about the 8th of December following plaintiff received notice that the car was ready for delivery. He said when he called he was informed that one of the lamps was broken, and defendant did not want to deliver it in that condition. He does not say that he ever afterwards made any request or demands for the car, or offered to pay the balance due. On the 24th of April, 1914, he received another letter, in which defendant calls his attention to his contract to purchase this Studebaker car, and adds: "We have been ready to make this delivery for a long time, and wish to know whether or not you will accept same by the end of the month." 'Plaintiff says in response to this letter, or a similar letter, he called upon the company and saw a car there, and asked if it was his car, and was told that it had just been sold to another man. He stated, after being pressed by counsel, that if defendant, at the time he went there, had produced the car 232 S.W.-15 your new Studebaker Six, or call at our office, as you promised to make an adjustment on several claims which we have against you." In response to that letter plaintiff says he went out in company with his attorney, at which time he discussed with the defendant an aggregation of troubles, but that there was no controversy at this time about the Studebaker touring car which he had contracted to purchase. He says he was afraid they might give him something he did not want, or had not contracted to buy. He also says he was disappointed about other transactions with the defendant, and refused to take such a car even though the defendant had complied in every respect with the con Defendant then offered an instruction in the nature of a demurrer to find for defendant on both counts of the petition, which was overruled." Edward Weber was then placed upon the witness stand by defendant, who offered to prove that about December, 1913, this car was ready for delivery to plaintiff; that he was notified of that fact on that occasion, and on numerous other occasions during the years 1913 and 1914; that plaintiff refused on one pretext and another to take the car, although the same was ready for delivery to him at any time that he saw fit to pay the balance of the purchase price thereon; that the defendant held such a car as was described in the contract, ready to deliver to plaintiff at all times since December, 1913, and is still ready, able, and willing to deliver such car upon the payment of the balance of the purchase price. Upon a mere general objection being made, the court sustained it and refused to allow the admission of this testimony. Other offers of proof were made, but upon objection being made the same was by the court sustained. At the close of the whole case, defendant offered another instruction that plaintiff could not recover on the first count of his petition. This the court refused to give. The court, at the request of plaintiff, did give and read to the jury the following instruction: item of $100 claimed in the first count of plain"The court instructs the jury that, as to the tiff's petition, you will find in favor of plaintiff for said sum of $100, with interest from April 23, 1917." Defendant offered one instruction, which [ was refused. It does not appear that any instructions were given or requested with respect to the second count in the petition. The jury returned the verdict heretofore mentioned. (207 Mo. App. 345) (St. Louis Court of Appeals. Missouri. June 927 (5)-Evidence to be viewed in favor of plaintiff. Where defendant stood on its demurrer and failed to introduce any evidence, appelof plaintiff, and must view that evidence in the late court is concerned only with the evidence light most favorable to plaintiff. 2. Railroads presumed. 346(1)-Lookout by engineer In an action for death at railroad cross ing, in the absence of anything to the contrary, it must be presumed that engineer was in his proper place in the cab, looking down the track, for the purpose of observing those who might be upon the crossing. 3. Railroads 320-Engineer's duty to avert striking person oblivious to danger. [1] Counsel for defendant make several assignments of error, but in our opinion it is un-1. Appeal and error necessary to notice all of them. It is apparent, however, that this verdict cannot stand. Plaintiff has offered to remit the amount of interest found in this court, inasmuch as none was asked for in the petition; but this would not cure the defects apparent before It is reversible error where, as here, the court refused to permit defendant to introduce testimony tending to show that it had carried out in every way its part of the contract with respect to the purchase price of the Studebaker touring car. If plaintiff was ready, willing, and able to carry out his terms of the contract, and defendant failed in the performance of its duties with respect thereto, then plaintiff would be entitled to a return of his money; but, on the other hand, if defendant was ready, willing, and able to carry out its part of the contract, and plaintiff refused to carry out his part of the agreement, without just cause, he could not recover the amount which he seeks to recover in this case. Webb & Kinne v. Steiner, 113 Mo. App. 482, 87 S. W. 618. Therefore defendant should have been permitted to make proof of its just and proper defense, which, according to the offer of proof, it had. [2] There is something said about another case, but no judgment was offered in evidence, nor are the proceedings in the other case before us. Plaintiff's counsel concede here that such proceedings were not res adjudicata, as he tried to introduce evidence showing what the testimony of defendant was in the other case. But such evidence would have been competent only for the purpose of impeachment, and the court's ruling on the admission of this testimony at the time it was offered was correct; but the action of the court in refusing to permit defendant to show that it had performed or had always been ready to perform all things it had agreed to do by the terms of its contract with plaintiff was clearly reversible error, and the court was not justified in giving a peremptory instruction to find for plaintiff on the first count of his petition. Therefore the Commissioner recommends that the judgment be reversed, and the cause remanded. PER CURIAM. The foregoing opinion of NIPPER, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly reversed, and the cause remanded. ALLEN, P. J., and BECKER, J., concur. A locomotive engineer, observing a man approaching the track with a wheelbarrow when 300 feet from the crossing, had the right to assume that the man would stop and not go into a place of danger; but after the man had left a parallel track, and was approaching over the space between the tracks, and the front of the wheelbarrow had arrived on the track on which the train was running, it should have appeared to a reasonably prudent engineer that the man was not going to stop, but was going on the track in front of the engine, and it was the duty of the engineer to avert injury by giving the emergency whistle, or by putting on the emergency brakes and reducing the speed of the train. 4. Railroads 346(1)-Engineer presumed to have seen deceased. Where engineer, operating train at time it killed plaintiff's deceased at crossing, did not testify, it will be presumed that he saw the deceased as he approached the crossing; there being no obstructions. 5. Railroads 350(33)-Negligence under humanitarian doctrine, held for jury. railroad crossing, over which he was pushing In an action for death of a pedestrian at a a wheelbarrow facts held to present a case for the application of the humanitarian doctrine, and the court did not err in submitting the cause to the jury. 6. Pleading 251 (8) 403 (2)-Trial Omission in complaint cured by admission in answer; question of obliviousness on part of deceased of danger at railroad crossing held admitted, and instruction need not contain such element. In an action against a railroad for damages for death of pedestrian at railroad crossing, a complaint by the defendant, after verdict, that the petition omitted the charge that at the time the deceased was oblivious to the danger, was without merit, where defendant's answer alleged that deceased in approaching the track failed to look and listen for the train, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) walked into a position of peril and danger, the [ in front of said train that the same could allegation of the defendant constituting an ad- not be stopped before striking him, and in mission that decedent was unaware of his stepping immediately in front of a rapidly peril, and the question of obliviousness on the approaching train. part of deceased was not an issue in the case, and the defect in the petition, if any, was cured, and proof of obliviousness was unnecessary, and it was not necessary to incorporate such element in the instructions. [1] The substantial question in the case is whether the evidence warranted the submission of the cause to the jury under the last chance doctrine, and involves the action of the court in refusing to sustain the defend Appeal from St. Louis Circuit Court; Kent ant's demurrer to the evidence offered at the K. Koerner, Judge. Action by Mary Milward against the Wabash Railway Company and another. Judgment for plaintiff, and defendants appeal. Affirmed. N. S. Brown, Wells H. Blodgett, Henry W. Blodgett, Walter N. Fisher, and J. H. Drucker, all of St. Louis, for appellants. Safford & Marsalek, of St. Louis, for respondent. BIGGS, C. Plaintiff, as the widow of William Milward, sues for the alleged wrongful death of her husband, who was struck by defendant's north-bound passenger train on November 26, 1915, where the tracks of defendant cross Bartmer avenue, about two blocks west of the St. Louis city limits. The right of recovery is grounded solely on the last chance theory; the petition alleging that defendants (being the railway and J. N. Butterly, the engineer in charge of the train) could have discovered that the deceased, William Milward, was approaching and crossing the track and was in danger of being struck by the locomotive in time to have averted his death by exercising ordinary care to sound the emergency whistle, and in time to have prevented his death by reducing the speed of the locomotive in the shortest time they could by the exercise of ordinary care, and in time to permit said William Milward to escape. It is alleged that the defendants negligently failed to keep a vigilant watch for persons in said highway and moving toward and upon said track, when they by performing that duty could have discovered that the said deceased was in said highway, moving toward and upon said track, and in danger of being struck by said locomotive, and that the defendants negligently failed to give deceased sufficient warning of the approach of said locomotive by sounding the emergency whistle, and negligently failed to reduce the speed of the locomotive in the shortest time they could by the exercise of ordinary care, which acts of negligence caused the death of plaintiff's husband. The answer was a general denial, coupled with a plea of contributory negligence, to the effect that the deceased's injuries were caused by his own negligence in failing to look and listen for the approach of defendant's train, and in walking into a position of peril and danger, where he would be struck by defendant's train such a short time and space close of plaintiff's case. The defendant stood on its demurrer and failed to introduce any evidence, so we are concerned only with the evidence of plaintiff. Viewing that evidence in the light most favorable to plaintiff, which is our duty in considering the question, the facts are these: Bartmer avenue, a much-used public highway, runs east and west. At a point two blocks west of the St. Louis city limits it is crossed by defendant's railway, which at that point runs north and south. The defendant operates two tracks at the point; the east track being used for north-bound and the west track for south-bound traffic. At about 2:15 in the afternoon of the day referred to, William Milward was struck by defendant's north-bound passenger train at this crossing, receiving injuries from which he subsequently died. At the time deceased was walking eastwardly on the south side of Bartmer avenue, and approaching the crossing from the west, pushing in front of him a loaded wheelbarrow. When defendant's train was at a point 300 feet south of the crossing, there were no obstructions which would prevent the engineer from seeing the deceased approaching the crossing from a point within 100 feet of the tracks, and the evidence warrants the inference that the engineer, sitting in the cab at a point 300 feet south of the crossing, could have seen the deceased as he approached the crossing from a point 100 feet west therefrom. William Milward, pushing the wheelbarrow in front of him, walked across the west track, the space between the tracks, crossed the east track, and had reached a point about 6 inches beyond the east end of the ties of the east track and almost to a place of safety, when the cylinder on the east side of the engine, which projects out from the side thereof, struck him and hurled his body northward about 50 feet and against the fence on the north side of the street. Plaintiff's evidence tended to prove that the bell of the engine was not ringing, that the whistle was not sounded, and that no attempt was made by the engineer to stop or slacken the speed of the train until after William Milward was struck by the engine. As it appeared that the deceased was pushing the wheelbarrow in front of him, and all the time was walking until the very moment he was struck by the engine, the jury could reasonably infer that the deceased at the time did not know the train was approaching the speed of his train even to a slight deand was unaware of his peril. [2] One witness testified that when Milward was on the west edge of the west track and was proceeding over the west track, the locomotive was then at a point 300 feet south, and it appeared from other evidence that the train was approaching the crossing at the rate of between 25 and 30 miles an hour. From the testimony of the fireman, who was put on the stand by the plaintiff, it appeared that at the time he was firing the engine, and was not in a position to have seen the deceased, and an inference can be drawn from his testimony that the engineer was on his seat in the cab of the engine, and in a position where he could see William Milward approaching the crossing. Were such not the fact, the law would presume, in the absence of anything to the contrary, that the engineer was in his proper place, as it was his duty to be, in the cab looking down the track, for the purpose of observing those who might be upon the crossing. Murrell v. Railroad, 279 Mo. 92, loc. cit. 111, 213 S. W. 964. Immediately after the engine struck deceased, the engineer applied the emergency brakes and the train was stopped within about 250 feet. [3] The foregoing facts present a case where a train approaching this much-used crossing at the rate of 25 or 30 miles an hour, and when at a point 300 feet south of the crossing the engineer in charge of the train saw or could have seen deceased, had he been looking, approaching the track on which the train was traveling, and at the time on the adjoining or west track pushing a wheelbarrow in front of him, and walking towards the track on which the train was running. At that time the engineer doubtless had the right to assume that the deceased would stop, and not go from a place of safety into a place of danger. This right to assume, however, that the plaintiff would stop and not go on the track ended when it appeared, or should have appeared to a reasonably prudent engineer, that the deceased was not going to stop and was going headlong into a place of danger. After the deceased had left the west track, and was approaching over the space between the tracks, and especially when the front of his wheelbarrow arrived on the east track, it should have appeared to a reasonably prudent engineer that the deceased was not going to stop, but was going upon the track in front of the engine. At that time it was the duty of the engineer to avert the catastrophe, if he could do so by the exercise of ordinary This duty to prevent the accident would have been performed by giving the emergency whistle, which doubtless would have warned the deceased, so that he would have hurried over the track, as he needed only one more step and he would have been in a place of safety. Or if the engineer had put on the emergency brakes, and slowed up gree, the death of William Milward would have been prevented. As the train was stopped within 250 feet after the accident, it may be inferred that its speed could have been sufficiently slackened before the accident, so as to have avoided striking plaintiff's husband. [4] The engineer did not testify, so the evidence is dark as to whether he actually saw the deceased before he was struck. It was his duty to keep a vigilant watch as he approached this crossing, and the law says that he saw what he might have seen. Ellis v. Railway, 234 Mo. 657, 138 S. W. 23. [5] The facts present a case for the application of the humanitarian doctrine, and the court did not err in submitting the cause to the jury. Holden v. Mo. Pac. Ry. Co., 177 Mo. 456, loc. cit. 468, 76 S. W. 973; Holmes v. Mo. Pac. Ry. Co., 207 Mo. 149, loc. cit. 163, 105 S. W. 624; Ellis v. Railway Co., 234 Mo. 657, 138 S. W. 23; Maginnis v. Railroad, 182 Mo. App. 694, 165 S. W. 849; Id., 268 Mo. 667, loc. cit. 678, 187 S. W. 1165; Martin v. St. Louis-San Francisco Ry. Co., 227 S. W. 129; Tavis v. Bush, 217 S. W. (Sup.) 274; Lyons v. Railway Co., 253 Mo. 143-152, 161 S. W. 726, Ann. Cas. 1915B, 508; Eppstein v. Railway Co., 197 Mo. 720, loc. cit. 735, 94 S. W. 967; Waddell v. Railroad, 213 Mo. loc. cit. 16. 111 S. W. 542. [6] Defendant complains because the petition omits the charge that at the time the deceased was oblivious to the danger, and also that plaintiff's instruction submitting the cause to the jury omitted the necessary element of obliviousness. The petition was not challenged until after verdict, and the defendant's answer alleged and admits that William Milward in approaching the track failed to look and listen for the train, and that he walked into a position of peril and danger. In view of this admission, tending to show that the deceased was unaware of his peril at the time and was oblivious to the danger, the question of obliviousness on the part of deceased was not an issue in the case. The admission eliminates the question, cures the defect in the petition, if any, renders the proof of such fact unnecessary, and also does away with the necessity, if any, of incorporating the element of obliviousness in the instruction. Defendant in its answer does not contend that the deceased wantonly went into a place of danger, but says that he went upon the track without looking or listening, and walked into the danger zone, thereby impliedly at least stating that at the time he was unaware of the danger. It is elemental that an admission in an answer may cure a defect in a petition, and render the proof of such fact unnecessary, and the instructions in such a case need not require a finding of such admitted fact. Where, as here, the defendant admits that the deceased went upon the track without |