DISSENTING OPINION.
FERRISS, J.Relator sued out of this court, at the October Term, 1910, a writ of certiorari directed to respondents, Judges of the Kansas City Court of Appeals. The writ was made returnable January 20, 1911.
The facts which led up to this proceeding are substantially as follows:
On October 4, 1900, relator sued one Samuel E. Sexton in the circuit court of Jackson county, charging in his petition that on January 5, 1888, and prior and subsequent thereto, including all of the year 1890, defendant (Sexton) and one Frank Bracking were partners engaged in the real estate and loan business in Kansas City under the firm name of Sexton & Bracking, and as such partners owned an interest in a tract of* land known as Madison Square, in Kansas City, Missouri; that on said January 5, 1888, plaintiff entered into a written contract with the said firm of Sexton & Bracking to purchase a one-sixteenth inter*216est in said Madison Square (setting out such contract in detail); that such contract provided that it was made subject to a contract of the same date between the same parties; that on the same date, in order to induce plaintiff to make such purchase, and as a part of the same transaction, said firm of Sexton & Bracking entered into a written contract with the plaintiff, as follows :
Kansas City, Mo., Jan'. 5th, 1888.
In consideration of W. Espy Curtis purchasing from us one-sixteenth interest in Madison Square, an addition to Kansas City, Missouri, we guarantee and promise to purchase it back from him October '6, 1890, if he so desires and requests, at the price he paid us for same, paying him back all the money he paid into and for the same, with interest at the rate of 10 per cent per annum from date of purchase.
Also, in consideration of W. Espy Curtis purchasing from us the aforesaid one-sixteenth interest in Madison Square, we guarantee to sell or trade lots 1, 2, 3, 4, 5,, 6 and 7, in Block (12), James Goodin Place, an addition to Kansas City, Missouri, or else in case these lots are not sold or traded by April 20, 1889, we promise and agree to carry the two-fifths interest in those lots belonging to W. Espy Curtis for him without interest, making the payment for him.
We also agree not to charge said W. Espy Curtis any commission for selling or trading the above mentioned property.
In witness whereof, we have placed our hands and seal.
Sexton & Bracking. (Seal).
The plaintiff in Ms said petition further stated that he had performed his part of said contracts in all respects; that prior to October 6, 1890, he notified Sexton & Bracking, and each of them, that he desired them to purchase said property back from him, in accordance with said contract, on October 6, 1890, and requested them to forward him such form of deed which they desired him to execute to them for said property, but that they neglected and refused to forward such form of deed, and informed plaintiff that they would not purchase said property back from him; that 'On October 6, 1890, and at different times thereafter, *217plaintiff informed said firm that lie desired them to purchase said property hack from him at the price he paid, in accordance with their contract, hut that they refused to purchase same hack, and refused to pay plaintiff any of the money which he had paid for said-land; that thereafter, on or about November 29, 1890; plaintiff executed to said Sexton & Bracking a deed to-said property, and tendered it to the defendant, one of said partners, and demanded of defendant the amount of money plaintiff had paid for said property, with interest to October 6,1890; that he made the same demand of and tender to Bracking; that both said parties refused to accept the deed and pay back the money which he had paid for the property, or any part thereof. "With further allegations in the petition with regard to payments which had been made, is a statement that the property was sold under a deed of trust securing a prior incumbrance which carried with it all of the title and interest which had been conveyed to-plaintiff as aforesaid. Plaintiff alleged that by reason of the premises he had been damaged in the sum of $2878.37, the aggregate of the payments made by him, with interest from October -6, 1890, and an additional sum of $149.81, paid for taxes, for which amounts, he prayed judgment.
To this petition the defendant filed an amended answer, setting up, first, the Statute of- Limitations; second, a general denial; third, that the contract of January 5 was a personal contract with Bracking, in which the defendant had no interest, and that he, the defendant, had complied with all his obligations.
The cause coming on for trial at Kansas City in January, 1903, plaintiff introduced his evidence, and at the close thereof a demurrer to the same was sustained by the court, whereupon plaintiff took a nonsuit with leave to move to set the same aside. The motion to-set aside being overruled, plaintiff perfected his ap*218peal to this court, and on February 27, 1907, we reversed the judgment and remanded the cause, holding that the court below erred in sustaining the demurrer to the evidence.
The evidence given at the trial in the circuit court, - and preserved in the record subsequently filed here, shows that no offer to resell, or tender of deed, was made by plaintiff on October 6, 1890. Our published opinion in that appeal states the fact to be that plaintiff, on October 6, notified the defendant of his desire to resell. The opinion is published in 201 Mo. 217. It says on page 229: “Before and on October 6, 1890, plaintiff asked defendant to prepare such a deed as he desired and offered to execute it;” and on page 226: “Plaintiff had previous to that date and on that date notified them that he desired them to so repurchase, and requested them to do so.”
On May 11, 1908, the said cause came up again for hearing in the circuit court on substantially the same pleadings as before. That was had before a jury, the evidence being substantially the same as that given at the first trial, and resulted in a verdict for plaintiff for $4543.75, for which amount judgment was entered against the defendant. From this judgment defendant appealed to this court. Pending such appeal the Legislature enlarged the jurisdiction of the Courts of Appeals to $7500, and, upon propér proceedings, the cause was transferred by this court to the Kansas City Court of Appeals. On January 24, 1910, the case having been argued in the Kansas City Court of Appeals-, that court rendered its decision and judgment, holding that time was of the essencó of the contract, and that plaintiff could not recover without showing that he had tendered a deed or offered to convey the property to defendant on October 6, 1890, reversing the case without remanding. In due time the plaintiff (relator) filed this motion for rehearing in the Court of Appeals:
*219“1. The decision of the court is in conflict with a controlling decision of the Supreme Court in this same case, reported in 201 Mo. 217.
• ££2. This court has overlooked or misconceived the decision of the Supreme Court above referred to. especially the binding force and effect thereof on this court.
“3. This court is in error in holding that the Supreme Court, in the same case above referred to, did not consider and decide £the matter of election of plaintiff to sell back, and his tender of deed. ’
“4. This court has misconceived the law of this case, in this: (1) In holding that time is of the essence of-the contract to be performed by the parties thereto; (2) in holding that plaintiff should have tendered a deed October 6,1890; (3) in holding that plaintiff had failed to perform his part of the contract; (4) in holding that Bracking’s letter of September 26, 1890, was not a waiver as to the time of tender; (5) in holding that plaintiff accompanied his notice by a demand, as a condition to making a deed, for more than was due him, and thereby deprived himself of a right to recover; (6) in holding that the evidence did not entitle plaintiff to go to the jury.”
The motion for a rehearing was overruled, the court stating that the opinion theretofore reached by it was based principally on the ground that plaintiff’s option to sell was not exercised on October 6, 1890, the day named in the contract, and that no tender of a deed was made by him on that date; that in the record before the Court of Appeals there was no proof of any tender on October 6, 1890; that in this respect the evidence before the Supreme Court was altogether different;-that the evidence presented to the Supreme Court disclosed that the plaintiff did exercise his option, and make his request on the" date named in the contract; that the court could not enter into a controversy between the parties as to whether the evidence *220before tbe Supreme Court and the evidence before the Court of Appeals was substantially the same; that the Court of Appeals took the evidence at the first trial to be as the Supreme Court stated it in its opinion, and that undoubtedly it was upon that statement of the evidence that the Supreme Court formed its conclusion and pronounced judgment.
When the relator filed his motion for rehearing in the Court of Appeals, as above stated, he also filed with that court a copy of the abstract of the record which had been filed in this court when the case was, here upon the first appeal, and requested the Court of Appeals to examine same in order to determine whether the record was substantially the same in the two appeals. The decision of the Kansas City Court of Appeals, on the .second appeal, together with the court’s ruling on the motion for rehearing, will be found in 142 Mo. App. 179.
Relator sued out this writ, charging in his petition the making of the contract above set out; the fact that the circuit court, at the first trial, nonsuited the plaintiff; that'the Supreme Court reversed the judgment and remanded the cause; that there was no substantial change in the pleadings. The petition then sets out the fact of the second trial in the circuit court and the judgment for the relator, and the appeal to this court; the transfer to the Court of Appeals, and the action of that court in reversing the case and holding that the plaintiff (relator) had no cause of action; sets out the opinion of the Court of Appeals, the motion for rehearing and the ruling of the Court of Appeals thereon, and then sets out the substance of the evidence on the matter of plaintiff’s election to sell •back and his tender of deed, on the first trial, as found in the abstract of the record on the appeal to the Supreme Court. Relator then sets out the evidence on the same point on the second appeal, as shown by the record of the case in the Court of Appeals, by which *221showing it appears that the facts on that point were substantially the same in both records.
Relator charges that upon the question of the compliance by plaintiff with, the terms of the contract, by tender of deed and demand of his money, the evidence in both records is the same. In other words, that the decision of the Court of Appeals was based upon the same evidence as was before this court when we held that the evidence made out a prima-facie case for the plaintiff. Relator states further in his petition herein that in neither record is any claim made that plaintiff took any action on October 6, 1890, either by notifying the defendant on that date, or by tendering a deed on that date.
Relator charges, in substance, that upon the same proof and substantially the same record the Supreme Court held on the first appeal that plaintiff had a cause of action, while the Court of Appeals, on the second appeal, held that he had no cause of action; and further charges that he filed with his brief on the motion for rehearing in the Court of Appeals a copy of the record of the case in the Supreme Court, and that the Court of Appeals refused to examine the same.
Relator claims that his rights must be determined upon the record itself which was before the Supreme Court, and not upon the statement of facts contained in the opinion; that the law of the case, as declared by this court on the first appeal, is res adjudicata on this question and binding upon the Court of Appeals, and that in passing judgment upon the same question contrary to the opinion heretofore expressed by this court, the Court of Appeals acted in excess of its jurisdiction; that an inspection of the records before the two courts shows that the evidence introduced by plaintiff upon the question of tender of deed and notification by plaintiff to defendant was substantially the same in both cases.
*222• For their return to the writ, the respondents set out the record of the proceedings in that court, including the opinion of the court, both in the main case and on the motion for rehearing. ,. . • ■
The Court of Appeals in its ruling on the motion for rehearing refers to the language used by this court in our published opinion, and says that it shows that on a point which that court considered vital to the case, namely, whether an offer to resell and- tender were made on October 6, the facts before the Supreme Court were essentially different from the facts in tbe record before that court, and that as the judgment of the Supreme' Court was based upon the evidence as the court stated it, there was no conflict between the-rulings of the two courts.
Relator says in his brief: ‘‘ The point upon which the Court of Appeals -reversed the case, namely, because a deed was not tendered or offered to be tendered on the exact day named in the contract, October 6, 1890, was practically raised on the former appeal to the Supreme Court, and was res adjudicate.” He claims further that, regardless of whether it was practically raised on the former appeal, it was concluded by the judgment of this court rendered upon that appeal; that the Court of Appeals cannot overrule the Supreme Court on the same evidence; that the record in the Supreme Court was the proper source from which the Court of Appeals should secure the facts in evidence in the former trial, and that the opinion- of the Supreme Court was not competent evidence to establish the facts in the case.
The respondents contend that the motion to quash the writ should be sustained because the Kansas City Court of Appeals had jurisdiction of the case, and whether its decision was right or wrong, its action cannot be reached by certiorari; that the evidence in the two records was not substantially the same; that in any event the law as declared by this court depends upon *223the facts as stated by the court in the opinion, and that the Court of Appeals was justified in taking the statement of facts made by this court in its opinion as and for the facts upon which the court rendered judgment.
I. Respondents contend that the writ should be quased on the ground that this court cannot by certiorari review the decision of the Court of Appeals in a case of which that court has jurisdiction.
Section 8 of the constitutional amendment of 1884 provides: “The Supreme Court shall have superintending control over the Courts of Appeals by mandamus, prohibition and certiorari ”
Section 3, article 6, of the Constitution of 1875, provides: “The Supreme Court shall have a general superintending control .over all inferior court's. It shall have power to issue writs of habeas corpus, mandamus, quo tvarranio, certiorari and other original remedial writs, and to hear and determine the same. ’ ’
Under these constitutional provisions the Supreme Court is the final repository of judicial power. Designedly and wisely, there is found in these provisions no attempt to define or limit the superintending control which the people have seen fit, through their Constitution, to delegate to the Supreme Court, save only to indicate the instrumentalities or writs through which this control may be exercised. In harmony with the idea of ultimate judicial power in the Supreme Court, section 6 of the amendment of 1884 requires the Court of Appeals to decide questions in conformity to the previous decisions of the Supreme Court. This to the end that the law throughout the State may be certain and uniform. Section 6 points out the method by which a Court of Appeals may transfer a cause to the Supreme Court, and in such case requires this court to ‘ ‘ rehear and determine said cause. ’ ’ The provisions of this section do not, however, in .any degree deprive this court of the superintending control given.by the *224'Constitution, and wMch.it is the duty of this court to exercise whenever in its judgment the occasion demands it.
Our former decisions show that we have not been inclined to interfere with the Courts of Appeals in the performance of the duties which the Constitution has •intrusted to them; nor are we disposed to encourage attempts to induce us to review their rulings through the medium of extraordinary writs. But that we have the power, in the exercise of our superintending control, to review their rulings in any 'case we can have no doubt. Nor can we doubt it to be our duty, under the Constitution, to exert this power whenever in our judgment justice demands its exercise.
The Constitution requires the Courts of Appeals, and each of them, to conform their decisions to ours; yet we have conceded to a Court of Appeals, in some cases where the matter was presented by litigants, the right to decide, upon its own responsibility, whether its dicision was in conflict with prior decisions of this court. [State ex rel. v. Smith, 173 Mo. 398; State ex rel. v. Broaddus, 207 Mo. 107; Railroad v. Smith, 154 Mo. 300.]
Said section 6 of the Amendment of 1884, in sneaking of prior decisions of the Supreme Court, is obviously referring to prior decisions in other Cases. It has never, so far as we are advised, been contended in this court that when this court has declared the law upon a given state of facts, a Court of Appeals is at liberty, upon the same facts, in the same case, if it shall come before that court through subsequent proceedings, to refuse to follow the decision of this court. A decision by this court upon a point presented in a case becomes the law of the case upon that point. It is in the -nature of res adjudicata upon that question. In further proceedings in the same case before a Court of Appeals, the prior decisions of this court must be followed, when the same point is pre*225sented upon the same facts. If that court attempts to disregard the decision of this court, upon such point it exceeds its jurisdiction. When a court acts without jurisdiction, or in excess of its jurisdiction, it is in error, and the error may be reached by certiorari. This court said in M., K. & T. Ry. Co. v. Smith, supra: “Courts at all times are under the imperative duty first to inquire into its authority to try a cause, and then to keep within the proper limits of jurisdiction prescribed by law” [l. c. 308]. Therefore, although a court may have jurisdiction of a case, if it, upon any point, exceeds its jurisdiction, the error may be reached by certiorari, there being no remedy by appeal or writ of error in such case. This court has many times decided that a decision by the Supreme Court upon a point becomes the law of the case upon that point, and is controlling upon further proceedings in that case in the lower court, and also that, with rare exceptions, such decision will bind this court upon a second appeal upon the same point. In the case of May v. Crawford, 150 Mo. l. c. 524, we said: “As hereinbefore pointed out, the decision in this case on prior appeal was that the sum of five thousand dollars, which the defendants agreed to pay the plaintiffs in case of breach of the terms of the contract, must be regarded as liquidated damages and not as a penalty. This being so, it became the law of this case, and was not open to question in the trial court. The duty of that court was to obey it without respect to its opinion of whether it was right or wrong. Whatever error there was in it could only be corrected on appeal to this court.” In the same case this court cited, with approval, the following from Wells on Res Adjudicata and Stare Decisis, sec. 613: “A previous ruling by the appellate court upon a point distinctly made may be only authority in other cases, to be followed, or affirmed, or to be modified, *226or overruled, according to its-intrinsic merits, but in the case in which it is made it is more than authority; it is a final adjudication, from the consequences of which the court cannot depart, nor the parties relieve themselves.” In commenting.upon this rule we said: ‘ ‘ This rule is necessary to the orderly and decent administration of the law, for it would destroy all respect for the law, and make judgments of courts of final resort mere mockeries and travesties, if the trial court could be permitted on a trial anew in that court to set aside, disregard or disobey them.”
Again, in the case of Gracey v. St. Louis, 221 Mo. l. e. 5, Lamm, J., speaking upon this question in behalf of the court, says: “On a second appeal or writ of error on the same facts and pleadings,, the appellate court will not notice questions determined in the previous decision. All such are res judicata and closed. For the practical administration of justice, the former decision is the law of the case; ’ ’ citing numerous cases. True, he says further, and properly, “Like all general rules, the one in hand has its exceptions. Where manifest and far-reaching error has been committed, no castiron or immutable rule bars a re-examination of a question illy decided. In such case it goes without saying that this court, as a debt due to justice and as one of the foundation stones of its own dignity, reserves to itself the right to reconsider, reexamine and redetermine.”
It will be perceived, however, that while this court reserves, as it must, the right to re-examine its former decision in the same case, upon the same state, of facts, that right is not accorded to the lower court. If this court makes a mistake either as to the law or the facts of the case, as may happen, inasmuch as the court is composed of,human judges, it has the power— fortunate that it is so — to correct that mistake by reversing itself on a second appeal; but it by no means follows that the trial court or the Court of Appeals *227lias the same right in this regard. When a point, once decided by this court, comes before either the circuit court or the Court of .Appeals bn further proceedings in the same case, neither of the courts last named has jurisdiction to overrule this court. Here the question is different from that presented in the case of State ex rel. v. Smith, supra, where’ the superintending power of this court was invoked upon the Court of Appeals, because that court refused to follow a prior decision of this court in other cases. Here the question is as to the duty of that court to follow the prior decision of this court in the same case. It becomes not a question of whether that court is right or wrong in its construction of the decision of this court* but whether that court is within its lawful jurisdiction if it disregards the law of the case as previously declared by this court. Upon the question here presented, in view of the fact that there is no way of bringing the point before this court by appeal or writ of error, we have no hesitation in holding it to be our duty, under the superintending control given this court by the Constitution, to review the action of the Court of Appeals by certiorari.
In view of the above considerations, we hold against the respondents on this contention, that this court has no power to review the action of the Court of Appeals by certiorari.
II. We come now to the controlling question in the case, that is whether, under the facts, the Court of Appeals has disregarded the decision of this court upon a point in judgment before both courts in the same case. In other, words, is the judgment of the Court of Appeals on the question as to whether or not plaintiff made a case, based upon the facts which this court held in judgment upon the same proposition?
Relator contends that the records before the two courts on the two separate appeals were substantially *228the same. In this statement he is correct. The record in each appeal shows that no tender and no offer'or request was made on October 6. The Court of Appeals held that upon such showing the plaintiff had made no case. In our opinion, based upon the same record, we stated the fact to be that on October 6 plaintiff notified defendant of his desire to resell, and requested him to prepare a deed. If our decision is to be regarded as applying to the facts in the record, the decisions are in conflict. If our decision applies to the facts as stated in our opinion, there is no necessary conflict.
On the motion for rehearing in the Court of Appeals relator placed before that court an abstract of the record in the Supreme Court, and called the attention of that court to the fact that the two records upon the proposition involved were substantially alike, and complains now that the court refused to look into that record to ascertain what facts were before this court upon the first appeal. Had the opinion of this court not shown the facts on which it was based, it would be fair to assume that our decision was based upon the facts contained in the record, and there would be a great deal of force in the contention of relator that the Court of Appeals, having before it both records, should have examined the record which had been filed in this court to ascertain whether the facts were the same; but whether the statement of facts made by this court in its opinion was correct or not, there can be no doubt that our decision was properly regarded by the Court of Appeals as applying to the facts stated in the opinion.
Relator attempts with great skill and industry to show that his cause of action did not depend upon an offer and tender of a deed being made on October 6, 1890, and contends that this court so decided. Ought we to now say that our decision was independent of the question whether the plaintiff acted on October 6, and that it would have been the same had we not had *229in mind the fact as we stated it in the opinion? We think not. It must be conceded that in stating the facts upon that point we inadvertently departed from the record, and unless it clearly appears that this court held in its decision that plaintiff had a cause of action, even if no tender and no offer were made on that date, it cannot be said that the decisions of the two courts are in conflict. From this point of view, it was immaterial whether or not the Court of Appeals examined the record which was before this court, because even if that court had examined the record, and had seen that the facts in the two records were alike, it still could properly have said that the judgment of the Supreme Court must be applied to the facts as stated in the opinion, and not to the facts as stated in the record. We can see no escape from this conclusion. The Court of Appeals could not say, and we cannot now say, that our decision was independent of the particular fact in question. It follows that the question considered by the Court of Appeals, viz.: What was the legal effect of the failure of plaintiff to make an offer and tender on October 6 ? was unembarrassed by any prior decision of this court on that question. As the facts are stated in our reported opinion, we did not pass upon the question as it was presented to the Court of Appeals. That court was, therefore, free to form and express its independent judgment, and whether that court was right or wrong in its conclusion it is not our prerogative to consider or determine.
It follows from the foregoing that the writ should be quashed.
The foregoing opinion was written under the original assignment of the case. As the conclusion reached did not meet the approval of the majority of the court, the case was reassigned to Brother Brown, who has written the opinion of the court. The present opinion is, therefore, filed as a dissenting opinion, in which
*230Lamm, J., concurs. Graves, J., concurs in the first paragraph of this opinion.