perfect legal right to do. High on Receivers (3d Ed.) § 821."

In further discussing the proposition, the rule was very clearly and correctly announced that "the power of a court of equity to remove or discharge a receiver whom it has appointed may be regarded as well settled, and it may be exercised at any stage of the litigation. Indeed, it would seem to be a necessary adjunct of the power of appointment and to be exercised as an incident to or consequence of that power; the authority to call such officer into being necessarily implying the authority to terminate his functions when their exercise is no longer necessary, or to remove the incumbent for an abuse of those functions, or for other cause. High on Receivers (3d Ed.) § 820; In re Colvin, 3 Md. Ch. 300; Siney v. Stage Co., 28 How. Prac. (N. Y.) 481; First Nat. Bank v. Bernum Wire & Iron Works, 58 Mich. 315, 24 N. W. 543, 25 N. W. 202, 55 Am. Rep. 660. And it is equally well settled that the court in its sound discretion may remove the incumbent, and substitute another in his stead. High on Receivers (3d Ed.) § 522; Siney v. Stage Co., 28 How. Prac. (N. Y.) 481; Railroad v. Soutter, 154 U. S. 540, 14 Sup. Ct. 1158, 17 L. Ed. 616; Crawford v. Ross, 39 Ga. 44." It will be observed in that case that the record which the court was called upon to review for the purpose of determining whether the relators were entitled to the relief sought—that is, a writ of prohibition

hibition proceedings to at least make some reference to the power and authority of the court to remove or discharge a receiver who had previously been appointed. While this court in that proceeding would not undertake to determine the propositions involved upon the appeal in the case at bar, as to whether the removal of Tillman and the appointment of Watkins was proper or improper, it was manifestly appropriate for the court to discuss the fundamental rules and principles applicable to the appointment and removal of receivers. It was expressly ruled in that case that the circuit court of St. Louis county, as disclosed by the record, had jurisdiction of the parties and the subject-matter of said cause, and in treating of the propositions involved it was said in that case, speaking through Judge Woodson, that, "in due form and in conformity with the law of the land, said court enjoined Sullivan and the company from further prosecuting the business, and appointed a receiver to take charge of the assets of the company, and ordered him to hold and administer them under the orders and direction of the court. In pursuance of this order, the receiver duly qualified and entered upon the discharge of his duties, as such, and reduced to possession the assets of the company. That possession was the same as the possession of the court, for the reason that the receiver is an arm or officer of the court which appointed him, and whatever he does under the order of the court regarding the disclosed that an intervening petition had property involved is the act of the court. been filed in the circuit court of St. LouHigh on Receivers (3d Ed.) § 134; Ex parte is county by Watkins, and that Watkins Haley, 99 Mo. 150, 12 S. W. 667; Colburn v. was appointed receiver instead of Tillman. Yantis, 176 Mo. 670, 75 S. W. 653; Robinson Whether he was appointed upon the allegav. Railroad, 66 Pa. 160; Skinner v. Maxwell, tions in the intervening petition or simply 68 N. C. 400; De Visser v. Blackstone, 6 upon the court's own motion is immaterial. Blatchf. 235, Fed. Cas. No. 3,840; Mays v. The record simply shows that an interplea Rose, Freem. Ch. (Miss.) 703; Day v. Post- or an intervening petition was filed and he al Telegraph Co., 66 Md. 354, 7 Atl. 608; | was appointed instead of Tillman. The final Angel v. Smith, 9 Ves. Ch. 335; In re But- conclusion reached in that case upon the ler's Estate, 13 Irish, Ch. 456. Clearly, un-record as recited therein, which is substander the facts of this case and according to the law enunciated by the above authorities, the assets of the Home Co-operative Company were in custodia legis on April 11, 1906, the day on which Watkins, the supervisor of building and loan associations, filed his bill in the nature of an interplea, asking the court to vacate and set aside the judgment and decree theretofore rendered appointing Tillman receiver, and asking that he be appointed receiver under Acts 1903, pp. 110-113 (Ann. St. 1906, §§ 1541-1-10). The legal custody of the property was not disturbed or changed by the order of the court made at a subsequent term removing Tillman as such receiver and appointing Watkins in his stead. Very v. Watkins, 23 How. 469, 16 L. Ed. 522; Shields v. Coleman, 157 U. S. 178-179, 15 Sup. Ct. 570, 39 L. Ed. 660. That order of the court was but the removal of one receiver and the appointment of an

tially the same as in the case at bar, was that the circuit court of St. Louis county clearly had jurisdiction, and therefore the circuit court of the city of St. Louis ought to be prohibited from entertaining jurisdiction of a subject-matter over which a court of concurrent jurisdiction had prior thereto obtained jurisdiction over the subject-matter and the parties. In our opinion the rules of law applicable to the appointment and removal of receivers, as announced in the Reynolds Case, state well and correctly the law upon that subject, and find full support in the numerous authorities cited to sustain it.

But it is contended that the court had no authority to appoint Watkins, who was supervisor of building and loan associations, such receiver. This insistence is predicated upon the theory that if Watkins, as supervisor of building and loan associations, is appointed receiver, it was essential that he

opinion the court had full power and authority at any stage of the litigation in that case in the exercise of a sound discretion to make such changes in the receivership as it might have deemed proper and appropriate. We repeat that the final decree in this cause settled the rights of all the parties to the controversy, and the appointment of Watkins, supervisor of building and loan associations, as receiver, in effect was a mere change of the possession of the assets in the hands of the court, and such receiver, even though he be supervisor of building and loan associations, must administer and distribute the assets of the company in harmony with the finding and adjudications of the final decree under the supervision of the court. It may be further stated that, even should he administer and distribute the assets of this company under the provisions of the statute which authorizes him to be appointed as receiver, such administration of the affairs of the company would still have to proceed under the supervising control of the court.

But, aside from all that has been said upon this subject, manifestly upon the record be

pose himself under the provisions of the | ject-matter and of the parties, and in our statute which makes provision where certain copartnerships, associations, organizations, or corporations shall become unable to continue in business to the benefit and profit of their creditors, then the supervisor is authorized to bring an action to have himself appointed receiver. To this insistence we are unwilling to give our assent. It must not be overlooked that this proceeding was pending and a final decree had been entered settling the rights of all parties to that controversy, and the correctness of that decree is unchallenged because it remains in full force and unappealed from. Subsequently Watkins, by an intervening petition, shows to the court that, under the provisions of this statute, he is the appropriate person to be the receiver of the assets that are already in the hands of the court, and the effect of the order appointing Watkins as such receiver was nothing more than changing the assets of the Home Co-operative Company from one hand of the court to the other. The proceeding, as originally brought, was not dismissed, nor was the final decree as entered in that case nullified. In our opinion it was not necessary in order to authorize the appointment of Watkins, super-fore us the appellant has no standing in this visor of building and loan associations, receiver of the assets of this company, for him to institute an independent proceeding. A proceeding for the appointment of a receiver for the purpose of administering and distributing the assets of an insolvent partnership, association, or corporation is one appealing to the equity side of the court, and the mere fact that the General Assembly may make provisions authorizing certain officials in control of certain departments of the state government to institute proceedings for the appointment of a receiver concerning particular subjects does not in any way change the equitable nature of the action, but is simply an aid or a supplement to the general and well-recognized rules of equitable jurisprudence which authorizes the institution of suits for the appointment of a receiver to administer and distribute the assets of an insolvent company or organization. Where a court of equity takes jurisdiction of the subject-matter, as was done in this case, it will retain jurisdiction until a complete disposition has been made of the case and adjust all equities arising therein. Reyburn v. Mitchell, 106 Mo. 365, 16 S. W. 592, 27 Am. St. Rep. 350; Jordon v. Harrison & Platt, 46 Mo. App. 172.

As was ruled in the case of State ex rel. v. Reynolds, supra, the suit instituted in the circuit court of St. Louis county was a proceeding in the nature of a proceeding in rem, having for its object and purpose the winding up of the affairs of the Home Co-operative Company and distributing the assets thereof among the creditors as provided by

court upon the merits of this controversy. He made no objections, nor did he preserve any exceptions to the final decree which adjudicated his status in this proceeding. Mr. Tillman, the receiver, who was removed, is not complaining upon this appeal; nor are any of the creditors of this Co-operative Company making any complaint concerning the appointment of Watkins as receiver, instead of Tillman. As applicable to the conclusions we have reached that there is no merit in this appeal, the adjudications and findings of the court in its final decree, which was consented to by this appellant, becomes quite significant. As indicated in the statement of this cause, this final decree recites: "That the Home Co-operative Company was a copartnership composed and consisting of its contract holders; that it was insolvent, and had ceased to do business before the filing of said suit; that the said William B. Sullivan and his assignors never at any time occupied any other legal relation to said company than that of mere trustees or managers for said company, and, as such, conducted for it its business. It decreed and adjudicated that said copartnership be dissolved; that the order of July 3, 1905, made and entered in said cause, be in all particulars confirmed; and that said receivership and injunction as therein granted be confirmed and made permanent." It will be observed in that decree that the court expressly makes the finding that this appellant and his assignors never at any time occupied any other legal relation to said company than that of mere trustees or manager of said company, and as such conducted for it its

38; State ex rel. Longdon v. Shelby, 75 Mo. 482; Tayon v. Ladew, 33 Mo. 205; Winkelmaier v. Weaver, 28 Mo. 358; House v. Duncan, 50 Mo. 453; Gunther Bros. v. Aylor, 92 Mo. App. 161-all of which go to sustain his opinion.

permitted to amend his return on the writ | App. 648, 96 S. W. 247. Goode, J., who renof attachment, to conform to the other dered the opinion, refers to the cases of Lilly amendments. The sureties on the attach- v. Tobbein, supra; Ward v. Pine, 50 Mo. ment bond appeared also and joined in the request to amend the papers as stated. The interpleader objected to the amendments. The amendment consisted in erasing the names of the following defendants: "Abilene Milling Company, a corporation, and W. H. Yohe and Glade and John Doe" -and substituting the following names: "F. A. Glade, F. M. Glade, A. A. Glade, A. W. Glade, Mrs. Maggie Flenner, and Miss May Flenner, copartners," and leaving the original words in the caption, "doing business as the Abilene Milling Company." The effect of the amendment was to dismiss as to the Abilene Milling Company as a corporation "and W. H. Yohe and Glade and John Doe," and make an entire substitution of new names of the persons doing business as the Abilene Milling Company.

The question presented by the appeal is whether the amendment was permissible under the Code. A short review of the decisions of the appellate courts of this state shows they are not in entire accord on the question. Judge Rombauer, in Courtney v. Sheehy, 38 Mo. App., loc. cit. 293, said: "It was never held that section 3567 (now 657 Rev. St. 1899 [Ann. St. 1906, p. 674]) of the Revised Statutes, * * * which provides that the court in furtherance of justice may add the name of any party, or correct the mistake in the name of a party, authorizes the court to add, by way of amendment, the name of the only substantial party plaintiff. or defendant, as that would be in effect the institution of an entirely new suit by way of amendment, which cannot be done." And the following cases are to the same effect: Altheimer v. Teuscher, 47 Mo. App. 284; Thieman v. Goodnight, 17 Mo. App. 429; Hall v. School District, 36 Mo. App. 21; Hajek v. Benevolent Society, 66 Mo. App. 568; Jordan v. Railroad, 105 Mo. App. 446, 79 S. W. 1155. In Lilly v. Tobbein, 103 Mo. 477, 15 S. W. 618, 23 Am. St. Rep. 887, the suit was instituted in the name of the unincorporated church, and the amendment consisted of bringing in the names of members of the church. The court said: "Substitut

However, it may be remarked that that case, and all those to which reference is made, were concerned with amendments allowed as to the names of parties plaintiff. But we can see no real difference which that would make, except in case of newly made defendants new process must be issued and served to bring them into court, whereas the newly made plaintiffs voluntarily appear and suffer their names to be used as such. This can make no difference in the application of the rule, as the statute applies to amendments in the name of a party, either plaintiff or defendant. It will thus be seen that our courts have not been harmonious on the question. In fact, one line of cases is directly in opposition to the other. Although we are of the opinion that the case of Lilly v. Tobbein and others of the like cited do not properly construe the statute in relation to amendments, yet, as they are the most recent expressions on the question, we believe that it could serve no good purpose to dissent from them at this time. With this conclusion, it follows that the amendment of the petition and subsequent proceedings in the case should be sustained.

But, if we are mistaken in the foregoing position, still the interpleader is in no condition to avail itself of the question for the reason that its interplea is a separate proceeding from the attachment, and the only issue is as to the rightfulness of the claim to the proceeds of the flour in the hands of the sheriff, and, if it recovers, it must be upon the strength of its title. Car Co. v. Barnard, 139 Mo. 142, 40 S. W. 762. The judgment being for the right party, it is affirmed. All concur.

CRAIG v. WESTERN LIFE INS. CO.

(St. Louis Court of Appeals. Missouri. March 9, 1909.)

1. INSURANCE (§ 191*)-ASSESSMENT INSURANCE-RIGHT TO LEVY ASSESSMENTS.

The right of an assessment life insurance company to assess its policy holders is strictly conditions prescribed in the contract of construed, and it can only be exercised when the insurance exist.

ing the party having the legal right to sue
for the claim for which the action is brought,
instead of another party improperly named
as plaintiff, is not the commencement of a
new action.
"Where a cause of
action was begun in the name of all the
stockholders of a corporation as partners,
when in fact the cause of action had been as-
signed to the corporation, it was proper to
allow the plaintiff's attorneys, on discovery
of the mistake, to amend their petition mak-
ing the corporation the plaintiff. Such an
amendment was not a change of the cause
of action." Hackett v. Van Frank, 119 Mo.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 416; Dec. Dig. § 191.*] 2. INSURANCE (§ 190*) - ASSESSMENT INSURANCE-LIABILITY OF MEMBERS.

Members of a mutual insurance company cannot be assessed to pay demands for which their contracts do not make them responsible,

be the difference between the market value and the contract price of the refrigerator.

[Ed. Note.-For other cases, see Sales, Cent. Dig. 1098; Dec. Dig. § 384.*] 4. SALES (§_340*)-REMEDIES OF SELLER-AC

TION ON EXECUTORY CONTRACT.

The next day plaintiff replied as follows: "St. Louis, Mo., March 9, 1907. Mr. J. S. Willoughby, Carterville, Mo. Dear Sir: We given our Mr. St. Clair, and on looking up have request from you to countermand order this order we find that it is a straight sale, and that there is no cancellation privilege. The Ayers Brokerage Co., of Joplin, Mo., have the agency for McCray goods in portion of Kansas and Oklahoma, but that does not give them the right to interfere with con[Ed. Note. For other cases, see Sales, Dec. tracts that we have made. When our men Dig. 340.*] make these contracts they have earned the Appeal from Circuit Court, Jasper Coun- salary that we pay them for getting the ty; Howard Gray, Judge.

Where the seller sued for the contract price, under an executory contract of sale, which the buyer had canceled before the goods had been shipped, without the right to do so under the contract, if he did not subsequently countermand the cancellation there could be no recovery by the seller.

Action by John J. Frederick, trading as the Standard Scale & Fixtures Company, against J. S. Willoughby. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Currey, Owen & Farris, for appellant. Thompson & Thompson, for respondent.

JOHNSON, J. Action on contract brought before a justice of the peace to recover the purchase price of a refrigerator sold by plaintiff to defendant. A jury was waived in the circuit court, where the cause was taken by appeal, and a trial resulted in a judgment for plaintiff for the amount of the contract price of the refrigerator. Defendant appealed.

business, and we rather resent the interference of the Ayers Brokerage Co., in prevailing on you to attempt to countermand an order that has been placed by you, and accepted by us, in good faith. We cannot release you from carrying out your contract, and we stand ready to carry out all that we have agreed to do. Yours truly, Standard Scale & Fixtures Co., per Jno. J. Frederick, Mngr."

Mr. St. Clair, called on defendant at CarterOn March 27th the traveling salesman, ville. The substance of the conversation that ensued is a subject of controversy between the parties. Plaintiff contends that defendant withdrew his cancellation of the order, and directed the salesman to have the refrigerator delivered at the time specified. Plaintiff, doing business in St. Louis under This is denied by defendant. Plaintiff shipthe name of the Standard Scale & Fixtures ped the refrigerator on April 1st, and offered Company, was a dealer in scales, refriger- to deliver it to defendant f. o. b. cars at ators, and fixtures used by grocers. Defend- Carterville, but defendant refused to receive ant was a grocer doing business in Carter-it, and this suit follows. ville, Mo. On January 3, 1907, defendant It is alleged in the statement filed with executed and delivered to a traveling sales- the justice "that in due course he (plaintiff) man for plaintiff a written order for a re- performed all the agreements as per terms of frigerator, described as a "No. 410 McCray the above contract, and shipped said rerefrigerator made by Sutherland frigerator to plaintiff at Carterville, Mo., & Dow, Chicago, Ill." The order required which arrived at said station in due course plaintiff to ship the refrigerator April 1, of shipment, and that the above sum is 1907, and to deliver it f. o. b. cars at Carter-long past due and unpaid to plaintiff, and ville for the price of $111.87, payable on delivery. No privilege to cancel the order was given defendant. No point is made that the order was not immediately accepted by plaintiff. It is not claimed that the refrigerator was of a special design or pattern, or that it was to be specially manufactured for defendant.

that, although often requested, defendant fails and refuses to pay said amount, which is justly due as per terms of the above contract." The prayer is that plaintiff "may have judgment for the full amount past due, $111.87, and the costs of this suit."

Defendant asked, and the court refused to give, the following declaration of law: "The Under date of March 8, 1907, defendant court declares the law to be that if the court wrote plaintiff the following letter: "Carter-finds from the evidence that the defendant ville, Mo. Mar. 8, 1907. Standard Scale & countermanded the order for the refrigerator Fixtures Co., St. Louis, Mo.: Please counter-before the same had been shipped by plainmand order given your Mr. St. Clair, for one No. 410 McCray Refrigerator, to be shipped about Apr. 1st, as I have just installed through Ayers Brokerage Company, Joplin, Mo., 1 large McCray Meat Cooler, which will answer my entire purpose. Regretting the necessity of countermanding the order, I am, Yours respectfully, J. S. Willoughby."

tiff, and did not thereafter tell the plaintiff's agent to ship the said refrigerator, the finding must be for the defendant.” The question for our solution is whether the court erred in refusing this declaration, and in rendering judgment for the full amount of the contract price of the refrigerator.

Since the order did not give to defendant