(dissenting).— Ordinarily, it would not seem necessary to enlarge a dissent in a case like this. The difference of opinion developed does not appear to involve any important rules of law, but relates rather to the proper application of acknowledged principles to the peculiar facts of the particular case. An expression of views that have not prevailed, in the disposition of such a cause, can be of little, if any, permanent value, and, usually, had better be withheld. But there may be occasions calling for such an expression, and this appears to be one of them.
Without elaborating the reasons for all the positions taken, it may be proper to indicate, as shortly as possible, the grounds on which, it seems to me, the judgment given by Judge Thomas in the trial court should be affirmed.
The interpretation of the contract between Mr. Hach and the firm of Hill, Nall & Co. has become the leading feature of the case here. Plaintiffs rely on that contract to impress upon the absolute deed (made by them to Hill, Nall & Co.,) the character of a mortgage. Its terms have been already stated.
My idea of the transaction of which it forms part is that Hill, Nall & Co. were to advance (as a loan to *33Mr. Hach) the funds necessary to rebuild, equip and run the stave factory, during the two years specified, receiving and selling the product thereof, and holding the legal title to the factory as security, until the repayment of their advances. It seems to me that such is the reasonable and natural construction of the contract and gives effect to the .obvious intention of the parties thereto.
The opinion of the majority of the court in danc restricts the scope of the security to much. narrower limits, whereas the agreement itself expressly secures to the “party of the second part” (Hill, Nall & Co.) the payment of “all indebtedness due them for the completion of said factory or on any oilier account whatever.”
Whether the prevailing opinion gives full effect to that language each reader 'of the case may determine. To my mind it falls far short of doing so.
The contract moreover provides that Mr. Hach should receive “nine per cent, net on all staves, heading or products of any kind made at said factory,” and that he should “give said party of the second part his best services and experience in running said factory under the direction and control of said party of the second part.”
These and other parts of the writing show that the parties contemplated that the factory should be run during the two years’ term of the contract, unless the party of the second part should meanwhile determine that it was “ unprofitable ” to do so, as stated in another clause. Looking at all these provisions, is it in accord with common business experience to suppose that the parties thereby intended to impose on Hill, Nall & Co. alone the expense of equipping and carrying on the factory while giving Mr. Hach a large “ net per cent.” on the out-put ? Especially, as it is conceded that that firm accepted the legal title only as security for their advances, and in circumstances which plaintiffs, in their *34petition, describe as follows: “At that time” (namely, the date of the contract) ‘' and for a long time prior thereto, that the said lot had been in the possession of the plaintiff, Nicholas Hach, who erected a stave factory thereon, which he had run and used for several years, but that a short time before the date aforesaid had been partially destroyed by fire ; that because of such fire the said Hach had become unable to raise sufficient money to repair and place in running condition the said stave factory and place therein suitable machinery and stock to successfully conduct said business, without procuring loans and assistance; that he appeared to the said defendants, Hill, Nalle and Dines, who were then copartners, doing business by the firm-name of Hill, Nall & Co., at Fredricktown, Missouri, who agreed to loan,” etc.
Do not the terms of the agreement itself, in the light of its surroundings, rather indicate that the substance of the arrangement was that Hill, Nall & Co. were to advance (on the security of the reality ) the needed capital to make the factory a going concern, under the personal charge of Hach (but subject to their supervision), thereby affording him a business opening he otherwise might not have had, and an opportunity to establish a trade and to assume sole ownership, if successful, by repaying the borrowed capital used in putting the enterprise on its feet ?
In plaintiff’s petition it is stated that Mr. Hach gave to Hill, Nall & Co. “his services and experience in the running of said stave factory and the manufacture of staves and heading and conduct of the business of procuring stock and shipping the same to market, and did so manufacture, and large sales were made ;” and, further on, that, “after the rebuilding, he, Nicholas Hach, continued to conduct said business as aforesaid; ” and, then again, that plaintiffs “ have never parted with the possession of said lot, but that the said Nicholas Hach has always retained the possession *35thereof in his own right, and now has the possession thereof.” (The possession here referred to is evidently actual, as distinguished from that which merely follows the legal title. The latter is concededly in defendants,, according to the petition.)
Now these facts seem to me to furnish a construction of the contract, by Mr. Hach himself, in harmony with that heretofore suggested as the correct one. The arrangement which that interpretation would imply involves nothing illegal, extraordinary or oppressive.
In my judgment the funds necessary to obtain the raw material for manufacture, and to “run” the factory, were quite as much in contemplation, as part of the advances to be made to Mr. Hach, under the agreement, as was the sum required for the preliminary object of rebuilding the factory. This seems to me evident from the general drift of the contract, and especially from the fact that it purports to secure to Hill, Nall & Co. the payment of “ all indebtedness due them for the completion of said factory or on any other account whatever.”
Something has been said about the peculiar rights of Mrs. Hach, in the premises, as a surety. It will be noted that the deed, in which she is a grantor is an absolute conveyance of the property, and that the collateral agreement under consideration, which plaintiffs seek to enforce, provides for a reconveyance to Nicholas Hach, upon payment of the loan secured. So far then, as concerns the rights of the defendants in this case, Mrs. Hach has parted with her interest in the land, and no injustice is done her by treating the facts as though Mr. Hach were the sole plaintiff.
For the foregoing (among other) reasons my dissent to the reversal of the judgment has been, and is yet, interposed.