(dissenting). — I am unable to concur in the opinion of the court in this case, to the effect that the judgment of the trial court is supported by substantial evidence.
The defense is that the money was not borrowed, but was furnished by plaintiffs to be used by Carmin for the expenses of his trip to California after the body of the wife and daughter, and the sole question for decision is: Did the parties intend at the time the money was furnished, that it was a loan to be repaid? I am of the opinion that the record contains no substantial evidence supporting the loan theory.
There is not a single disputed fact in the case. The husband and wife had separated, and he had released all claims to her property. She died in California and her parents seeing the notice in the paper of her death, intended to go after the body and bring it home for burial. They wired the son-in-law to come to Kansas City, and there they talked over the proposed trip, and it was agreed that Carmin should go, and the parents advanced or furnished him the expenses of the trip. When he returned, the parents received the body and buried it, and he accounted to them for the expenses of his trip and returned the. balance of the unexpended money. We find that afterwards they settled the note he held by paying $.200 in cash, and executing notes aggregating $800, coming due at different times, and one of these amounting to $300 and interest was subsequently paid. After the payment of this note, the letter copied in opinion of Judge Cox, was sent to Carmin, and in that we find that plaintiffs were reminding Car-min that they had paid every cent of his expenses to *531California, and that he was not out even the price of one meal on that trip, and also censuring him for not telling the people in California that the plaintiffs were bearing all the expenses of the trip. The letter reads: “We trusted you to go out there and paid every cent for you. Now as we are paying you the thousand dollars and you are out nothing, not even a meal while you was out in California, you never told the people out there that we was paying all your expenses for you. We are so sorry that we ever had you go there.”
In addition to this clear language showing that it never was the intention of the parties to hold as a debt against the son-in-law the demand in this controversy, it stands admitted that at no time during his life was any such claim made.
My associates are of the opinion that inasmuch as the daughter, in her testimony relating the conversation between the plaintiffs and Carmin at Kansas City, states that the money was “advanced,” that it is substantial evidence that the money was borrowed by Carmin, and that it was the intention of the parties that it should be repaid.
The word “advanced” may be used to convey different ideas and in creating different relations. The wholesale house may advance money to its traveling salesmen as expense money; again, a man may send another out to buy property for him, and advance the money therefor; a parent may advance money to a child, and if the word is used in the transaction, it may mean an advancement to be deducted from the child’s part of the parent’s estate. In none of these cases is the money borrowed. The husband may advance money to the wife, and in such cases, it is considered as a gift, and not a loan.
In Chase v. Ewing, 51 Barb. (N. Y.) 597, it is held that the word “advances” in legal parlance, has a different and far broader signification than an advance*532ment by a parent to a child. It may characterize a loan or a gift or money advanced to be paid conditionally,
It may be that in a strict legal sense, “advance” does not mean gift, but a sort of a loan, and in its ordinary sense, includes both loans and gifts. [Anderson’s Law Dictionary; Nolan’s Executors v. Bolton, 25 Ga. 355.] And testimony is admissible to determine whether it was intended as a gift or an advancement. [Gunn v. Thurston, 130 Mo. 339, 32 S. W. 654.]
If there is any doubt as to what was meant by the word “advanced” at the time the money was furnished, that doubt was removed when the son-in-law came bach from California and accounted to the plaintiffs for the money used and returned the unexpended portion thereof, and by the fact that in their subsequent financial transactions, they took no account of this money, and the clear expressions in the letter that the plaintiffs had paid all the expenses of the California trip.
“Tell me what the parties have done under a deed, and I will tell you what that deed means,” is quoted approvingly by the court in Scott v. Scott, 95 Mo. 300, 8 S. W. 161. This principle has been approved many times in this State. In Union Depot Co. v. Railroad Co., 131 Mo. 1. c. 305, 31 S. W. 908, Judge Brace said: “The business of a court and jury is to ascertain the meaning and intention of the parties m making an agreement, and to carry that into effect, if it is consistent with law. I know of no better mode of ascertaining this meaning than is shown if all parties acted on a particular meaning. A doctrine that has frequently received the approval of this court.”
The same rule is recognized in the other appellate courts of the country. The Supreme Court of Iowa puts it in the following language: “The best evidence of how the parties understood the terms of their contract, is afforded by their acts under it.” [Pratt v. Prouty, 73 N. W. 1035.] The Supreme Court of Pennsylvania: “The construction placed upon contracts by *533the parties will be followed by the court, if possible.” [Gillispe v. Iseman, 59 Mo. App. 266.] The Supreme Court of West Virginia: “In construing contracts, the courts pay high regard to the construction given by the parties by their actions in reference thereto.” [Clark v. Lambert, 47 S. E. 312.] In the Federal courts, the rule is declared as follows: “There is no safer rule for the construction of contracts, than that placed upon them by the parties thereto, before any controversy arises between them.” [Lyman v. K. C. & A. R. Co., 101 F. 636.]
I agree that the general rule is that the appellate court will not weigh the evidence, but I am of the opinion that where there is no conflict in the evidence and it all comes from plaintiffs’ witness and the written admissions made by the plaintiffs, then it is the duty of the appellate court to pass upon the testimony as a matter of law. In this position I believe I am sustained by the great weight of authority in this and other States.' [State ex rel. v. Elliott, 157 Mo. 1. c. 618, 57 S. W. 1087; Knorpp v. Wagner, 195 Mo. 662, 93 S. W. 961; Comstock v. Flower, 109 Mo. App. 275, 84 S. W. 207; Holt v. Morton, 53 Mo. App. 187; Young v. Van Natta, 113 Mo. App. 550, 88 S. W. 123; Hodge v. Williams, 63 Pac. 721; Thomas v. Pocatello Power & Irrigation Co., 63 Pac. 595; Brandt v. Hall, 82 N. E. 929; Commercial Bank of Moscow v. Lieuallen, 46 Pac. 1020; Talcot v. Mastin, 79 Pac. 973; Gibson v. Hammang, 88 N. W. 500; Douglas v. Paine, 104 N. W. 781.]
It is claimed that my opinion is in conflict with the rule announced in Seehorn v. Bank, 148 Mo: 256, 49 S. W. 886, cited and relied on by the majority of this court. It is true in that case it is said the jury must weigh the testimony, even though it all come from one side and be uncontradicted. That was a correct declaration of law applied to that class of cases. The defendant had. filed an answer denying all the allegations of the petition, and the plaintiffs introduced testimony *534tending to prove the allegations of his petition, and the defendant offered no testimony, and the court simply held that the defendant had the right to take the opinion of the jury as to whether they believed the testimony of the plaintiffs’ witnesses. In that case the defendant was denying the truth of the witnesses. In the present case, the defendant admits the truth of the testimony of plaintiffs’ witnesses, but says to the court accepting this testimony as absolutely true it does not furnish substantial evidence to support the judgment.
The letter written by Mrs. Linderman was evidence against her husband. They were jointly interested in the subject-matter of the suit, and had a joint interest in the matter in controversy. In such cases, I understand that the rule is well settled that the declaration and admissions of one are admissible against the other. [Armstrong et al. v. Farrar et al., 8 Mo. 627 ;. Hurst & Salmon v. Robinson, 13 Mo. 82; St. L., O. H. & C. Railroad Co. v. Fowler, 142 Mo. 670, 44 S. W. 771; Wigmore on Evidence, vol. 2, sec. 1080.]
I do not believe the fact that Mrs. Carmín was the wife of Carmín, should, under the evidence, raise a presumption that he borrowed the money in order to bury her in recognition of his legal duty. More than a year previous to her death, she had deserted her husband and her relatives, and they did not know where she was, or whether she was alive. My understanding of the law is, that where the wife deserts the husband and secretes herself from him, that he is. not liable for necessaries furnished her. [Reese v. Chilton, 26 Mo. 598.]
The husband was not interested in the property of the wife. Under the written contract offered in evidence, it all belonged to the plaintiffs, as by that contract he had relinquished all the claim thereto.
My associates maintain that we do not differ as to the law of the case, and that our only difference is on the one question, whether there is substantial evi*535dence to support the verdict, and that is a question of fact. We all agree that the court may determine what is substantial evidence, but in determining this question, I maintain that the opinion of the majority does not follow the rule declared by the Supreme Court in State ex rel. v. Elliott, 157 Mo., supra; Knorpp v. Wagner, supra; also Court of Appeals in Comstock,v. Flower, supra; Holt v. Morton, supra, and Young v. Van Natta, supra.
In State ex rel. v. Elliott, the testimony, as here, was plain and uncontradictory, and the court said: “There is no conflict in the testimony, and therefore, the legal effect of the uncontradicted evidence is open to inquiry to this court.” Page 618.
In Young v. Van Natta, supra, Johnson, J., delivering the opinion of the court, said: “When th*e terms of a contract are definitely known, whether it be in writing or verbal, its interpretation is a matter of law for ■ the court, not a question of fact for the jury.”
In Holt v. Morton, supra, the rule is declared that a verdict inconsistent with the admissions of the successful party, and the uncontradicted evidence, will not be permitted to stand.
I believe that the result reached by my brethren is due to the fact that they have not followed the rules declared in these cases, and therefore, their opinion is in conflict with said cases, and that the cause should be sent to the Supreme Court for a final disposition.
The amount involved is not large, and owing to the vast amount of work, in important cases, now pending before the Supreme Court, I regret that we are unable to agree on the final disposition of. this case, but there is a principle involved, and that is, that persons should not be allowed, after a man has died, to recover on de-. mands which they admitted, while he was alive, had no existence, and when the uncontradicted evidence shows such is attempted, it is the duty of the trial court to prevent it, and if that court fails in the discharge of *536such duty, then it becomes the duty of the. appellate court to interfere and prevent the wrong being accomplished.
For the reasons given, I dissent from the majority opinion and ask that the cause be transferred to the Supreme Court.