(after stating the facts). — The first assignment of error is the refusal of the court, on motion of plaintiff, to discharge the special jury which had been summoned to try the ease. The application and *473order for the special venire are not contained in the record and we know not for what reason the conrt was asked to have it summoned or whether defendant’s application was opposed. The record shows no objection by plaintiffs to the procedure until after voir dire examination of the members of the panel, the peremptory challenges by the parties and statements by counsel to the panel selected as the jury of the facts relied on for the cause of action and the defense. The motion to discharge the special jury said the statements of counsel and the pleadings showed there were “no intricate involved calculations calling for unusual preparation or skill, but the issues are based upon the questions of fact as to knowledge, title and good faith.” In the motion for new trial we find the charge made that the special jury was not fairly and impartially selected, and instead was “selected with a view to contain the greatest possible number of presidents and secretaries of various corporations and the greatest possible number of German inhabitants so the defendant might obtain the benefit of any bias arising from either race or corporation prejudice.” The record omits the voir dire examination of the panel and there is nothing before us to support the accusation of policy in summoning the jury and the probability of a bias in the members unfavorable to plaintiffs. As no abuse of the court’s discretion to try the cause by the special jury appears, the exception taken to the overruling of the motion to discharge said jury will be disallowed. [R. S. 1899, sec. 6566; Eckrich v. Transit Co., 176 Mo. 621, 75 S. W. 755.]
The action is for damages for the conversion by defendant of the two carloads of eggs belonging to plaintiffs, shipped by them from Fredonia, Kansas, to B. W. Redfearn in St. Louis, and accompanied by letters or invoices to said Redfearn in the following form:
*474“INVOICE oe Shipment.
“To B. W. Redfearn,
927 North. Fourth St., Saint Louis, Mo.
306 eases of eggs stenciled F, from Fredonia Produce Company, Fredonia, Kansas, July 14, 1904. -306 cases of eggs, current receipts, transferred and topped —excelsior and extra flats. Drafts $ — . No. —. Terms, Cash on delivery of goods. Shipped via Frisco.”
The second invoice was precisely like the above except the date, which was July 12, 1904, and the shipment was for 276 cases of eggs. Plaintiffs offered the invoices in evidence on the theory that the expression “terms cash on delivery of the goods” was, in effect, a limitation on the authority of Redfearn to pass the title to the property by sale or reconsignment except on receipt of the price in cash for plaintiffs. This was true as between plaintiffs and Redfearn, unless the course of business pursued by them had been in disregard of restrictions in the invoices of prior shipments. The invoices of the shipments in dispute were incompetent against defendant, for it never had seen them and hence knew nothing of the supposed restriction of the authority of Redfearn to dispose of the eggs, and as consignee in the bills of lading taken by plaintiffs from the railway company which carried the property from Fredonia to St. Louis, he might be dealt with as having complete power to pass the title. The only cloud on the title to the eggs acquired by defendant arose in this way, as will be seen by reading the former statement and opinion: The Mound City Produce Company received the eggs at St. Louis, reconsigned them to Rowland & Company in New York, took bills of lading from the Wabash Railroad Company, over which road the eggs were shipped to New York, attached these bills of lading to a draft drawn on Rowland. & Company, and defendant discounted the draft. If this transaction had occurred between the *475bank and Redfearn, whom plaintiffs admit they had expressly authorized to do such acts, there would have been no doubt about the title to the eggs passing with the bills of lading. Bnt as defendant dealt with the Mound City Produce Company, the corporation Red-fearn controlled, instead of with him personally, and as plaintiffs denied said corporation had been authorized to transact business for them, it was necessary for defendant, in order to maintain its title and escape a judgment for haying converted the property, to establish one of several facts regarding the transmission of the eggs to Rowland & Company for sale in New York and the assignment to defendant of the draft for their proceeds, with bills of lading attached, namely: that said acts, though done in the name of the Mound City Company were attended to or ordered by Redfearn, or Gunn or "W. P. Johnson, who concededly had power to act in such affairs in Redfearn’s absence, or that plaintiffs had expressly authorized the Mound City Company likewise to act as their agent, which they denied, or that authority had been conferred on it by a previous course of dealing acquiesced in by plaintiffs, or that, after all material facts were known, plaintiffs had ratified the transaction between the Produce Company and defendant by depositing to their credit in the Fre-donia Bank the draft drawn on itself by the Mound City Produce Company and transmitted to plaintiffs with a letter showing it was sent to pay for the eggs. As those issues were the essential issues, the invoices with which plaintiffs accompanied the shipments of eggs to Redfearn were not relevant.
Complaint is also made of the exclusion of 159 of the “kiting” drafts for many thousands of dollars, which had been drawn by the Mound City Company and B. W. Redfearn on the Fredonia Produce Company during seven or eight months prior to and wholly unconnected with the transactions in controversy, discounted with defendant bank and afterwards paid by *476plaintiffs on presentation. As is shown in the former opinion, plaintiffs had maintained the credit of Red-fearn for about a year by honoring drafts of this character drawn by him and discounted with defendant. If the Mound City Company needed money it would draw such a draft on plaintiffs, get it cashed by defendant, which would send the draft to Fredonia for payment and plaintiffs would pay it, being remimbursed by other drafts drawn by the Produce Company on itself and transmitted to plaintiffs. The testimony in regard to this course of business was competent as against plaintiffs to affect them with notice of the insolvent condition of the Produce Company at the time they accepted the draft on itself for the two carloads of eggs in question and thereby make good the alleged ratification by said acceptance of the Produce Company’s disposition of the eggs as their agent. The bearing of the testimony as regards the defendant is altogether different. That these 159 ‘ ‘ kiting ’ ’ drafts had been drawn on and honored by plaintiffs through many months, had no tendency in itself to prove defendant knew the Mound City Produce Company was insolvent. For aught that appears defendant had no knowledge .of the real nature of the transactions or reason to believe the drafts were a scheme used by plaintiffs and Red-fearn to maintain the Mound City Produce Company’s financial condition, or were not drawn and paid in the usual course of exchange. As we pointed out in the previous opinion, the failure of the Mound City Company was caused by plaintiffs suddenly refusing to honor $5500’ of these drafts which had been discounted with' the defendant and accepted by it on the faith of many previous transactions, in all of which plaintiffs had paid the drafts when presented. No error was committed to plaintiffs’ prejudice in excluding the drafts, for standing alone they threw no light on the issues, and explained by the circumstances connected *477with them conduced to prove defendant was ignorant of the insolvency of the Produce Company.
The instructions given and refused will go with the opinion. On comparing those given with the former opinion they will be perceived to declare the law. in conformity to it. The first refused request of plaintiffs was covered in part by a charge given by the court, and the other paragraph defined a phrase 11 preponderance of the evidence,” not used elsewhere in the instructions. The second refused request had no evidence to rest on and was. opposed to the former decision. The third, in so far as sound and not a comment on facts, was covered by the fourth instruction granted for plaintiffs. The fourth refused request was a comment on two facts singled out from various facts bearing on the question of ratification. The fifth and sixth sought to introduce the alien and immaterial issues of whether defendant had been misled by plaintiffs paying many kiting drafts not connected with the eggs in dispute, and of whether plaintiffs were bound to continue to pay such drafts. The evidence regarding those occurrences was admitted only as proof of plaintiffs’ knowledge of the Produce Company’s insolvency and not to establish the affirmative of the hypothesis mentioned in the refused requests.
The judgment is affirmed.
All concur.