LINDSAY, C.

The plaintiff obtained a verdict and judgment against defendant upon both of the two counts of its petition, each of which set out that defendant had sold and agreed to deliver to plaintiff certain quantities of machine cast pig iron, and had failed to deliver the same, to plaintiff's damage. The contract pleaded in each count was for the sale and delivery of 5,000 tons of iron of certain specifications, to be delivered in equal monthly installments, during the months of March, April, May and June, 1920, at the price of $35 per ton. The contracts so pleaded were made respectively on November 24, 1919, and November 26, 1919. The allegations were, in the first count, that defendant delivered 139 tons of said pig iron, and no more, and, under the second, that none was delivered, and that plaintiff was at all times ready to receive the same in accordance with the terms of the contract. The sum of $75,000 in damages was asked in each count. The answer, alike as to each count of the petition, after a general denial, admitted the making of the contracts, and pleaded, as to each, that it was subject to the condition therein that defendant should not be liable in damages for failure to deliver caused by "strikes, accidents or other causes beyond our control." and was also subject to the defendant being able to complete its blast furnace, and plant, in time to perform said contract. The defendant pleaded that it dismantled its plant in June, 1919, and contemplated completion thereof, March 1, 1920, and that simultaneously with the execution of the contracts it notified plaintiff that delivery of the iron was conditioned upon the completion of its plant. The defendant then pleaded that due to strikes, and other causes beyond its control, its plant was not completed until May 31, 1920, and pleaded that the particular events causing that delay were that manufacturers of machinery, and appliances necessary for completion, were unable to deliver on account of causes beyond their control; that carriers were unable to deliver on account of congestion of traffic and other causes beyond their control; that contractors engaged in the erection of said plant and furnace were delayed by strikes and bad weather; and that after the completion of said plant, about May 31, 1920, the defendant was further delayed in making deliveries under the contracts due to conditions, and causes beyond its control, in that, although defendant had contracted for coke of the necessary quality and quantity, to be used in the production of pig iron as specified in the contracts, the coke delivered to it (defendant) was wholly unfit and useless for the manufacture of pig iron of the quality specified, and that the coke market was such from May, 1920, to November, 1920, that defendant was unable to procure the coke necessary for said purpose, all of which conditions, it was alleged, were beyond the control of defendant. The defendant then pleaded that it had kept plaintiff constantly advised of said conditions, and that plaintiff, by reason of its knowledge thereof, from time to time extended the time for said deliveries, and waived the provision for deliveries in the months specified in the contract. The defendant pleaded that having secured some coke, in October, 1920, it manufactured and delivered to plaintiff 97 tons of the required specifications, which plaintiff accepted, and then pleaded that in November, 1920, having secured the necessary coke, it notified plaintiff it was ready and willing to deliver said pig iron, and has been and is willing to do so, but plaintiff refused to accept the same. The reply was a general denial. The plaintiff had a verdict for $13,026.24 under the first count, and a verdict for $14,037.50 under the second count. These sums included interest computed at six per cent, from May 21, 1921, the date of filing the petition, to the date of the return of the verdict.

First may be noticed the contention of the plaintiff that the brief for defendant does not comply with Rule 15, in that, it contains no assignment of errors. It does not contain such in a separate and formal way, but the errors claimed are nevertheless asserted under various subdivisions of points and authorities in the brief and argument filed, and the compliance with the rule is sufficient under what has been held in Eastman v. United Rys. Co., 232 S.W. 725, and other cases.

Defendant insists that its demurrer to the evidence should have been sustained; that plaintiff, as a matter of law, was not entitled to recover. This raises numerous mixed questions. There were some conversations over the telephone between the parties, through the purchasing agent of plaintiff, and the treasurer and representative of the defendant, before the contract was executed. In a circular letter dated November 12, 1919, the treasurer of defendant addressed plaintiff's purchasing agent calling plaintiff's attention to defendant's arrangement for casting machine pig iron, and the advantages of the proposed method for casting. In this letter it was stated: "With our new furnace in operation, which we believe will be about March 1st, we shall be in position to furnish Goltra Special Pig Iron in basic, Malleable, Bessemer, and Foundry". The letter then set forth the contents of the iron so proposed to be cast, and solicited orders from the plaintiff. This letter, offered by defendant, was admitted on the theory that it tended to show that the parties had in contemplation a special grade of pig iron.

The first of the two contracts sued on, made November 24, 1919, was prepared by defendant's treasurer upon a printed form, in duplicate, and signed and transmitted to plaintiff. As transmitted, it specified the period for shipment as March 1st, to June 30, 1920. Plaintiff's purchasing agent inserted the provision therein providing for delivery in equal monthly installments within that period, as being the agreement reached in the negotiations. The contract as thus completed is as follows, the italics showing the terms written into the printed form, and the provision as to monthly installments is shown:

"Messrs. Scullin Steel Company, St. Louis, Missouri We have sold you and you agree to buy:

"Quantity 5000 tons Machine Cast Pig Iron. "Specifications Silicon 1.25 and under Sulphur .05 and under Phosphorus .25 and under Manganese .80 to 100 "Price Per ton 2240 Lbs. $35.00 f.o.b. cars their switch. THIRTY-FIVE DOLLARS. "Payment Cash 30 days. "If buyer fails to make any payment when due, the seller shall have the right to cancel the contract or to postpone shipment of future installments until prior shipments are paid for. "Shipment March 1st to June 30th, 1920.

"EQUAL MONTHLY INSTALLMENTS DURING MARCH, APRIL, MAY AND JUNE.

"Route Via. "If shipment is to be made in installments this contract for all purposes shall be treated as separate for each installment. "We shall not be liable in damages for failure to deliver caused by strikes, accidents or other causes beyond our control. "The Contract is completely set forth herein. "MISSISSIPPI VALLEY IRON COMPANY, "Per E.O.J. WALLACE, Tr. "Scullin Steel Company, "Accepted J.W. Hargate, "(Buyer will please sign and return this copy)"

The contract as so conditioned and accepted by plaintiff was transmitted by letter to defendant and attention was called to the provision as to monthly installments. The contract declared upon in the second count of the petition, dated November 26, 1919, is the same in form and terms. The defendant's claim that the demurrer should have been sustained is grounded upon the contentions; (1) that plaintiff sued on a special contract, and (2) did not prove the contract sued on; (3) that the evidence shows a waiving of all the terms and conditions except the price, and that the acts, conduct, circumstances and statements show a modified and entirely new contract; (4) that plaintiff's theory was that time was not of the essence of the contract, and there was either a waiver of this, or, a showing in the evidence that time was not of the essence of the contract, and (5) that plaintiff took an undue advantage, and undue time in which to speculate on the market price of iron, before undertaking to rescind, not giving defendant a reasonable time in which to perform. The consideration of the general issue raised by the demurrer involves a consideration of certain other issues, either directly or incidentally — the competency of certain evidence, offered, or admitted; the construction to be given to the written contract; and the claim of waiver, under the acts and declarations of the parties.

In support of its position, the defendants sought to show upon cross-examination of plaintiff's purchasing agent, Hargate, and also upon its examination of Wallace, treasurer of Parol defendant, that in and under the negotiations between Proof. them, and by the acts of the parties, it was agreed that the time of delivery of the iron as set forth in the contract was conditioned upon defendant having its plant completed on March 1, 1920. There is much space taken up in the record with the questions tending toward the purpose stated, with objections thereto by plaintiff, and with the rulings of the court thereon. There was discussion as to whether the questions and their purpose were an attempt to show, by parol, a condition, or agreement, as to the time when the contract itself should become effective, or whether the purpose was to show that the agreement, outside the written terms, was that the time of delivery set forth in the contract was conditional upon completion of the plant, and might be postponed. Upon the questions, and upon the statements of defendant's counsel as to his purpose, too long to set out here in detail, the court held that the evidence which defendant's counsel sought to bring forth was parol evidence tending to vary the terms of the written contract, and excluded that evidence. That the defendant was seeking by parol evidence to add a new condition to the contract, as to the time of delivery of the iron, and not to show a conditional delivery of the instrument, or a condition as to when it should become a contract, appears reasonably certain from the questions and from the statements of counsel for defendant. We agree with the trial court in the conclusion reached on that point. The written instrument is unconditional, and unambiguous in this particular. The negotiations which preceded its execution were merged into it, and consummated by it into an agreement in writing, and the court did not err in excluding the evidence offered, of these conversations, had before the execution and delivery of the contracts, the purpose of which was to show that in addition to the conditions mentioned in the contracts, delivery was further conditioned upon the completion of the plaintiff's plant. [Massman v. Holscher, 49 Mo. 87; Bank v. Bank, 244 Mo. 554; Beheret v. Myers, 240 Mo. 58; Bross v. Stancliff, 240 S.W. 1091.]

The plaintiff declared upon the contracts as made respectively November 24, and November 26, 1919. The essential defenses offered by the defendant were, that the delay arose Waiver of under conditions provided for in the contracts, and Conditions. also that there was an extension or a waiver of the conditions as to time. The first of these issues arose under the terms of the contracts; the second, upon other grounds. Unless the defendant sustained the burden of showing a change or a waiver of the conditions, the contention of defendant that plaintiff declared upon one cause of action and was permitted to recover upon another and different cause, cannot be allowed. The cases cited by defendant, Lanitz v. King, 93 Mo. 513; Cole v. Armour, 154 Mo. 333, and others, are applicable only where the cause of action proved is different from the one declared upon.

The plant of defendant was not completed until May 31, 1920, and during that period no iron was delivered to the plaintiff. The evidence shows that in May, 1920, the agent of plaintiff by telephone was advising the defendant that plaintiff's stock of pig iron was low, and that it wanted the iron from defendant. Like conversations took place in June and July, in which the plaintiff called attention to the fact that its stock of pig iron was low. During this period the explanation of defendant's agent was that coke could not be had, of a kind necessary for casting pig iron of the specifications provided for. On August 10, 1920, the plaintiff wrote to defendant a letter as follows:

"Under the terms of the contract of November 24th and 26th, you were to ship the 10,000 tons machine cast pig iron in equal monthly installments during March, April, May and June. You have not shipped any, and therefore are in default as to all of it.

"Recently you promised to ship some to us during August and we are willing to accept such belated delivery as in full compliance with the contracts, provided you do ship. We have already been compelled to buy some iron on the market and we do not want to become overstocked with outside purchases, but we will have to buy more and for your account, if we cannot depend with certainty upon getting the pig iron from you.

"Please let us know exactly when we may expect delivery, so that we may govern ourselves accordingly."

The answer of defendant to the foregoing was a letter under date of August 11, 1920, as follows:

"Your letter of the 10th has been carefully read. Shipments have not been made on account of our contracts with you because of circumstances entirely beyond our control. We intended blowing in the 1st of March, but were prevented from doing so on account of our not being able to obtain the necessary materials to complete the reconstruction of our plant. We were, also, delayed by labor troubles. When we finally did blow in we experienced considerable trouble with the coke, in fact were unable to make any basic iron of your specifications.

"At the present time our furnace is banked awaiting a supply of coke which we expect will produce the various grades of iron for which we have contracts. When our supply of coke which is enroute reaches us, we can determine within a very few days just how soon we will be able to begin supplying you with basic."

To this letter plaintiff made no reply, nor, according to both Hargate and Wallace, did defendant follow up its letter of August 11th by further statement of its expectations or purposes, until in October, 1920. About the 18th of October, 1920, the defendant notified plaintiff by telephone that it had four cars of pig iron. There is some slight variance between plaintiff's agent and defendant's agent in their testimony as to this transaction, but the evidence tends to show that, of the four cars, two of them were of iron according to the specifications, and two were not, or, as the witnesses termed it, the iron of these two was "off basic." The plaintiff received these four cars on October 22, 1920, and the iron was accepted at $35 per ton, the price specified in the contract. Plaintiff's witness, Hargate, testified that the contract was not mentioned, but that the iron was acceped. Hargate testified that shortly after this, defendant offered to ship more iron "off basic," which plaintiff did not want and would not accept. Wallace, defendant's treasurer, testified that Hargate, in their talk, in October, wanted iron according to specifications, but did not want iron shipped that was not in accordance with specifications, and that he, Wallace, answered that as soon as they could make it they would ship it. Wallace testified that about one week later, Hargate called him and told him to ship no more iron, that plaintiff would take no more shipments on that contract. About the 5th of November, 1920, Mr. Goltra, president of the defendant company, interviewed the president of plaintiff company, saying to him that defendant would like to resume shipment of iron and was prepared to fill the contract. Plaintiff's president declined to take the iron, saying they would not need it. Later, on November 15th, the plaintiff wrote to defendant a letter, saying that under the contracts deliveries should have been made in March, April, May and June, and that plaintiff could not now accept deliveries under those contracts, advising defendant that plaintiff would look to it for settlement for the difference between the contract price and the market price at the dates when delivery was required under the contracts, and suggesting that defendant take up the matter with plaintiff's attorney. To this, defendant's president replied, saying that on the following week he would take up the subject with plaintiff's attorney.

The plaintiff and defendant were both manufacturers. The product made by defendant, the subject of this sale, was a material used by the plaintiff in the manufacture of other products. The plaintiff would have engagements, fulfillment of which depended upon its obtaining the commodity which defendant undertook to furnish. The contract was explicit in its statement of the time, and periods of time within which definite amounts should be delivered. Under the terms of the contracts, and the circumstances and purposes under which and for which they were executed, the time of delivery, as stipulated, was of the essence of the contract. [Redlands Orange Growers Assn. v. Gorman, 161 Mo. 203; Norrington v. Wright, 115 U.S. 188; Cleveland Rolling Mill Co. v. Rhodes, 121 U.S. 255; 23 R.C.L. page 1331; Sunshine Cloak Co. v. Roquette, 30 N.D. 143, L.R.A. 1916 E, 932.] The provision as to equal monthly installments in the named months, written into the contract, with the printed provision as tendered by defendant that, "If shipment is to be made in installments this contract for all purposes shall be treated as separate for each installment," with the other circumstances shown, is indicative of an intention to make the time of delivery of each installment a condition precedent as to each installment. The decision in Bridge Co. v. Corrigan, 251 Mo. 667; St. L. Steam Heating V. Co. v. Bissell, 41 Mo. App. 426, and Harris v. U.S.F. G. Co., 213 S.W. 151, are not regarded as holding contrary to the view above expressed. These cases dealt with contracts for the construction of buildings or structures of a permanent nature, and there were provisions in the contracts, and circumstances surrounding, held to be inconsistent with the idea that time was of the essence of the contract.

Evidence was introduced as to the market price in St. Louis of iron of the specifications contracted for during the months named in the contract, including November, 1919. The evidence showed that during the months named in the contract the market price was much above the price contracted, $35 per ton, and continued so and reached its peak in September or early in October, when a decline began; that this decline was not rapid until about November, when, as the evidence shows there was a sharp break, and pronounced downward trend in the price of this product.

Under the evidence, and under the approved ruling of the trial court, the contract was completely expressed in the written instrument which has been set out heretofore. Therein, the condition applicable to delay in delivery was the one absolving defendant from liability "for failure to deliver caused by strikes, accidents or other causes beyond our control." In the state of the pleadings, the burden rested upon the defendant of showing that the delay was due to the causes specified in the contract; or, that there was an agreement subsequent, extending the time; or, that there was a waiver by the plaintiff of its rights under the contract. The immediate question is whether it must be held as a matter of law, under the evidence, that the defendant is within one or more of these conditions. The evidence in the record is not such that it must be said that there was an express agreement extending the time of delivery, or that, as a matter of law, there was a waiver of the condition in that respect. No express agreement was made in the conversations between Hargate and Wallace. These, on the one side, were representations that plaintiff's stock of iron was low, and, on the other, explanations as to why defendant had not delivered. Under defendant's evidence, defendant did not have coke for making the iron specified until in November.

The letter of plaintiff of August 11th was not a waiver and did not result in a new agreement, because the defendant did not respond to the conditions suggested or proposed in plaintiff's said letter. In that letter the plaintiff charged the defendant with being wholly in default, referred to a recent promise of defendant that it would ship some in August, and upon that expressed a willingness to accept "such belated delivery as in full compliance with the contracts provided you do ship," and then asked to be advised "exactly" when delivery might be expected. Defendant's reply did not meet the requirements as to so advising plaintiff, nor did the defendant make any shipment except and until the one made in October. This did not constitute an acceptance of or compliance with plaintiff's offer of August 10th. [Bernhardt v. Federal Terra Cotta Company, 101 S.E. (Ga.) 588.]

The question whether the acceptance by plaintiff of the iron shipped in October operated as an extension of time, or a waiver, was involved in the issue presented by the demurrer to the evidence. The trial court took the view, and so instructed the jury, that acceptance of an installment, or a part of it out of time, under a contract calling for delivery in installments, does not of itself waive the right to require delivery of other installments, and that the acceptance in October of a part of the iron, did not of itself, and irrespective of any agreement by plaintiff to an extension of time, constitute a waiver. This conclusion is supported by the holding in Redlands Orange Growers Assn. v. Gorman, 161 Mo. 203, where the cases were reviewed; and the like rulings are found in Wall v. Ice Cold Storage Co., 112 Mo. App. 659, and Peak v. International Harvester Co., 194 Mo. App. 128. See also 23 R.C.L. p. 1366; 24 R.C.L. p. 286. A part of the iron delivered, as has been said was in accordance with the specifications, and a part was not. The trial court in its instruction on the measure of damages applied this delivery and acceptance to the first installment, due in March, under the first count in the petition.

The defendant complains that the court excluded evidence offered to show the condition of its plant, and plaintiff's knowledge thereof, at and prior to the time of the Condition making of the contract. The court at first excluded of Plant. evidence of this character, but afterward admitted in evidence the circular letter of November 12, 1919, wherein it was stated that defendant expected its plant to be in operation by March 1, 1920, and also permitted plaintiff's purchasing agent to testify on cross-examination that, at the time the contract was made, he knew that defendant's furnace "was down," and that it was being remodeled. Whatever error might be imputed to the court in that regard, in the beginning, was not perpetuated, because the evidence admitted clearly showed the fact that defendant's plant was not in operation when the contract was made, and plaintiff's knowledge at that time, of that fact, was made equally clear. The contract in writing, directly purporting to express all the terms agreed upon, was executed by the parties under that known situation. Upon the whole, the action of the trial court in this regard was not reversible error.

The language used in the contract is that defendant was to "sell and deliver" the iron to plaintiff. The contention of plaintiff is, and was, that since there was To Sell and machine cast pig iron of the named specifications Deliver Means to be had in the market, the defendant could have To Manufacture purchased the commodity and performed the and Deliver. contract. The trial court construed the contract to be one to manufacture and deliver, and so instructed the jury. The defendant was a manufacturer, and not a merchant or broker. It is very evident from the circumstances that the parties had in contemplation the manufacture by the defendant of the iron to be delivered under the contract. They so treated it during the whole period. The defendant made no effort or offer during the period to fill the contract by the purchase of iron, of like specifications. The plaintiff introduced evidence tending to show that pig iron of the specifications named in the contract was purchasable in St. Louis during the spring of 1920. Since the defendant did not, during the time specified, make any offer to deliver iron obtained through purchase, it lost nothing through the holding that its contract was one to manufacture and deliver. The plaintiff is not appealing, but is contending here that the contract could have been met through the purchase by defendant of iron of specifications meeting the requirements. The case was submitted, and under the demurrer is to be considered here, upon the issues, whether there was an extension of time, or whether the failure to manufacture and deliver was due to accidents, strikes or other causes beyond the control of defendant, as specified in the contract.

There is no substantial evidence in the record tending to show that defendant was prevented by accident from complying with the contract. The defendant introduced evidence showing a Accident: number of strikes of the men employed by various Strikes. contractors engaged upon the work of reconstruction of its plant, and evidence of a general strike of switchmen on railroads, and of a strike of teamsters in St. Louis. There is variance in the testimony as to the length of time strikes delayed the completion of the plant, but a delay of from one to two months might be attributed to this cause, as accruing after the making of the contract.

Defendant offered evidence to show that there was extremely cold weather during a part of the time in which the work of remodeling its plant was in progress, and that the Cold Building Commissioner of the City of St. Louis held up Weather. construction for a time, and offered in evidence a report of the Weather Bureau of the United States, showing extreme cold weather in the New England states, from which section defendant was receiving certain sand and gravel material necessary in the construction of its plant. The defendant assigns error upon the refusal of the court to admit that evidence. The court did not err in excluding that evidence. These weather conditions were not within the terms of the clause in the contract under the applicable rule of construction, because these conditions were not within the classes specifically enumerated, and do not naturally fall within those classes. This clause is subjected to the rule that where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase is to be held to refer to things of the same kind. [13 C.J. p. 537; Miller v. Wagenhauser, 18 Mo. App. 11; American Bridge Co. v. Glenmore Distilleries Co., 107 S.W. 279; Rosenstein v. Farish Co., 178 N.Y.S. 865.] But, there is another consideration under the evidence in the record. The defendant's plant was completed on May 31, 1920. Regardless of the effect of weather and other causes for delay, it stands conceded by defendant that at Coke. no time prior to October, 1920, did it have coke of the necessary quality and quantity to make iron of the required specifications, and apparently not until in November a sufficient quantity of coke to undertake making the quantity of iron required. The failure to make and deliver the iron during the period after May 31, 1920, according to defendant's own statements and evidence, was not attributable to accidents, strikes, or causes other than lack of coke. There was the express offer of plaintiff in August, 1920, to accept iron as under the contract, provided the defendant would devise exactly as to when it would ship, and would actually deliver accordingly. At that time there was no cause to prevent manufacture and delivery other than lack of coke. That cause according to defendant's evidence had existed throughout all the period covered by the contract. Essentially then, under the facts, the question arises whether the failure or alleged inability of the defendant to procure the necessary coke, was a cause of its failure to deliver within the clause of the contract exempting defendant from liability for failure due to accidents, strikes or other kindred causes. Defendant offered to introduce evidence to show that in November, 1919, it entered into negotiations with the Indiana Coke Gas Company for a supply of coke of the kind proper to its purposes, and entered into a contract in February, 1920, for such supply, but that the coke delivered under said contract was not in conformity with the contract and was unsuited to defendant's purposes, and that defendant was unable to get the necessary coke elsewhere until in October and November, 1920. The defendant complains of the exclusion of this evidence by the trial court. This was not error. The defendant assumed the risk of procuring the necessary coke as a material to be used in the manufacture of the iron. Its failure to do this was not a cause, which, under the terms of the contract, exempted defendant from liability. Under this point our attention is called to the decision in Coal Co. v. Brick Co., 66 Mo. App. 296. In that case the contract was for the shipment of coal, and the language of the contract was that the plaintiff should not be required to furnish coal "when prevented by strikes, or any other cause beyond its control, from handling the products of its mines." The plaintiff's mines were situated on the line of the Wabash Railroad, and it was held that if the railroad company during the month involved failed and refused to furnish the number of cars which the plaintiff had reason to expect at the time the contract was entered into, and such failure to furnish cars was the sole cause of the plaintiff's failure to comply with his contract to ship two cars of coal each day, the plaintiff was entitled to be excused. In that case it would seem certain that the parties contracted in view of the fact that the plaintiff, from day to day, was dependent upon a given railroad company to furnish the necessary cars to handle the coal. In the case at bar, the defendant must be held to have assumed the risk of procuring in advance by contractual arrangement, from any source available, a material necessary to its purpose. If the party with whom defendant contracted failed to comply with his contract, that was not a result due to accident or to strikes or to causes which can be held to be within the terms of the contract under consideration. In Cleveland Rolling Mills v. Rhodes, 121 U.S. l.c. 263, it was said: "The failure to have on hand a sufficient amount of charcoal to keep the furnace at work is not shown to have been due to `accident or strikes,' which were contingencies contemplated by all parties, and provided for in the contract sued on. But it was a state of things of which the plaintiffs assumed the risk by undertaking that the whole of the ore should be made into pig iron ready to be shipped as soon as possible after the opening of navigation in 1881."

Upon a consideration of the record we are of the opinion that the court did not err in overruling defendant's demurrer.

The defendant assigns as error the action of the court in permitting a witness for plaintiff to give testimony, out of order, and as a rebuttal of testimony to be offered Testimony in by the defendant. As a part of its defense the Rebuttal. defendant pleaded that coke of the proper quality was not obtainable in St. Louis from May, 1920, to about November, 1920. The plaintiff introduced the witness Burt Champion, who testified as to the prices of iron during the period mentioned, and then asked to be permitted to show by the same witness that coke was obtainable in St. Louis during that period, for the reason that the witness was about to leave the city. The defendant objected upon the ground that the evidence was in the nature of rebuttal, and not admissible at that time. The court after inquiry of the witness as to his purpose to leave the city, in the exercise of its discretion, permitted the witness to testify. Afterward, when defendant, in putting in its evidence offered to show its efforts and its inability to procure coke, and the court held that its failure to procure coke was not within the excepting clause of the contract, and defendant then moved the court to strike out the testimony of plaintiff's said witness on that subject. The court declined to do so, at that time, but advised defendant to renew its motion at the close of the case. We find no exception noted to the ruling then made on the motion. In submitting the case the court instructed the jury, in an instruction for plaintiff, that defendant's failure to make delivery of the iron by reason of not having coke of the proper quality and quantity was no defense, and that all evidence admitted on that issue was withdrawn from their consideration. The court also in a separate instruction given for defendant told the jury to disregard the testimony of said witness, Burt Champion, as to being able to purchase blast furnace coke during the year 1920. Under the first of these instructions the failure of defendant to have the necessary coke was expressly eliminated as a defense, under the contract. That being so, and the jury having also been explicity told to disregard the testimony of the witness it cannot be readily seen how defendant's case was prejudiced by the fact that the testimony was given out of the ordinary course, or, because it was not expressly withdrawn at the first request of defendant. It is urged that the plaintiff, having taken that testimony, was estopped from objecting to the testimony subsequently offered by the defendant on that subject. If the testimony introduced by plaintiff had been a part of his case in chief this would be true, as was held under that situation in South St. Louis Ry. Co. v. Plate, 92 Mo. 614. But, in this case the testimony was not primarily a part of plaintiff's case. It was admitted, in the exercise of the court's discretion, and against objection only as to it being testimony in rebuttal, and out of regular order. Under the circumstances shown we do not regard the action of the court as reversible error.

The defendant complains of the offer and effort of plaintiff to show that on account of the failure of defendant to deliver the iron, the plaintiff was compelled to and did Purchases purchase pig iron upon the market. But the court from Others. excluded that evidence, and committed no error therein. The defendant also assigns as error the action of the court in permitting the whole of plaintiff's letter of August 10th to be read, and specifically the following portion: "We have already been compelled to buy some iron on the market and we do not want to become overstocked with outside purchases, but we will have to buy more, and for your account, if we cannot depend with certainty upon getting the pig iron from you." The defendant urges that the question of plaintiff being compelled to buy iron upon the market, or of any damage, or measure of damages made thereby, was not made an issue under the pleadings. That is true, but this statement was embodied in a letter which was in the nature of a demand by plaintiff upon defendant for a delivery of the iron, and the statement specified was a part of the demand, and of what the plaintiff expected to do under the circumstances. The statement was pertinent also upon the question whether the plaintiff was waiving any right under the contract. On these grounds it was not reversible error to admit the whole of the letter.

The defendant assign as error the giving of plaintiff's instruction numbered 6. This instruction told the jury that there was no substantial evidence that defendant was Withdrawing prevented from making delivery by reason of any Evidence. delay or congestion on the part of any railroad or common carrier in the delivery of materials, and all that testimony admitted in evidence on that issue was withdrawn from their consideration. The defendant urges that there was sufficient testimony before the jury upon that issue to warrant the jury's action thereon in making up their minds. Attention is not called to the specific evidence on this point. The defendant offered and the court admitted testimony as to certain materials contracted for by defendant, and circumstances as to their delivery. Chiefly, these consisted of a water softener and a car of sand. For these defendant contracted in September, 1919, and it appears, with the representative of a firm in Philadelphia. The testimony was that their delivery was delayed. The evidence was that the water softener was delivered in January, 1920, that it was to be set up by the defendant, and that setting it up would require about three weeks of time. This delay, the witness said, was due so far as he knew to trouble at the factory. All of the sand and gravel, which it was said was of a special kind, was not delivered until in May. Upon the question of the cause of the delay of this material the witness could not qualify, that is, he did not know whether the delay was caused by the railroad or not. The sand was for use in connection with the water softener. The testimony of the witness was that other sand might have been obtained and used, but no under the guaranty of his firm which specified the particular sand to be used. There was also testimony of delay in getting certain motors and other electrical appliances. This delay was explained as due to delay in getting the appliances delivered to the railroad, but the reason of that was not explained. The testimony fell short of showing a delay due to railroad congestion, if that were within the strike and accident clause of the contract, as a contract to manufacture and deliver the iron. The witnesses could not testify from their own knowledge as to the cause of the delay.

The defendant assigns as error the giving of Instruction 7 which withdrew from the jury all evidence as to the question of timely delivery of coke. That question has been considered already.

The defendant complains of the giving of Instruction 9 for plaintiff. This instruction told the jury that under a contract calling for delivery in installments the acceptance Waiver: of one installment or a portion thereof did not of Acceptance itself waive the as Part. right to require other installments to be delivered in accordance with the contract, and that the acceptance of 140 tons of iron in October, 1920, was not of itself a waiver by plaintiff of its right to require that the remainder be delivered in accordance with the contracts in evidence. The defendant pleaded that plaintiff had extended the time for delivery and had waived the provision for deliveries in the months named, and pleaded the delivery and acceptance in October of the iron then delivered. The defendant did not ask an instruction advising the jury as to what constituted a waiver, but the court instructed the jury under defendant's Instruction 3 that the parties to such a contract might extend the time of its performance either expressly or by their conduct, and that if the jury found from the evidence that plaintiff consented or agreed to a postponement of the time of the delivery until the month of October, and that on October 19, 1920, the defendant did ship certain iron and plaintiff accepted it as in compliance with the contracts, then the plaintiff could not recover damages for failure to deliver the iron at the times specified in the contracts. We do not think these instructions could have misled the jury upon that subject.

Defendant assigns as error the giving of plaintiff's Instruction 11, as modified by the court, upon the burden of proof. That instruction told the jury that the burden Burden of was upon plaintiff to establish by a preponderance of Proof. the evidence the facts necessary to a verdict in its favor under the instructions given, and then told the jury that upon the issue as to whether defendant was excused from making delivery due to strikes, accidents or other causes beyond its control (as defined in the instructions), and upon the issue as to whether or not the plaintiff had waived any of its rights under the contracts, the burden of proof was upon the defendant. Defendant complains that the court did not in this instruction more specifically set forth what the issues were upon which the plaintiff had the burden of proof. The instruction properly placed upon the defendant the burden of proof upon the two issues specifically pointed out, and necessarily left the burden on the plaintiff as to others, and besides, by Instruction 1, given of the court's own motion, the court defined the issues upon which they might find for plaintiff, unless they further found the facts, which the court also defined, constituting a defense.

The defendant also assigns error in the giving of Instruction 2, by the court of its own motion, on the measure of damages, whereby the court confined the jury to finding Measure of plaintiff's damages to sums equal to the difference Damages. between the contract price and the market price as of the last days of March, April, May and June, 1920. The defendant assigns as error therein, that the court did not give the jury an opportunity to assess the damages as of the time of November, the time when, as defendant urges, the breach, if any, really occurred. Under this attention is called to Detroit Beef Co. v. Holstein Com. Co., 223 S.W. 790, and Grocery Co. v. Thompson, 216 S.W. 780. These were cases in which, under the contracts, no definite time was fixed for delivery. Under Instructions 1 and 2 the right of plaintiff to recover was submitted upon plaintiff's theory, subject to defendant's defense thereto. Under that, if the jury found that there had been no extension of the time for delivery, the damages were assessable as of the time of the breach of the contract. The defendant asked no instruction upon the measure of damages assessable as of November, 1920. In this connection the plaintiff insists that under the evidence as to the average market price of iron in St. Louis, in November, 1920, the damages, if assessed according to that price and as of that time, would have been in excess of the amount allowed by the verdict, and that the amount of the verdict is far below the difference between the market price, and the contract price, in the period of the months named. However, laying aside that suggestion we think the measure of damages was properly defined and submitted.

There is yet another assignment of error founded upon the refusal of the court to permit the defendant to file an amended answer, which included a counterclaim against the plaintiff. The suit was filed May 21, 1921, and assigned to Division No. 1 under the rules. An answer was filed by defendant on August 26, 1921. The answer then filed was the one on which the case was tried. The plaintiff filed its motion to strike out parts of the answer, which motion was overruled, and afterward, January 3, 1922, plaintiff's reply was filed. On January 16, 1922, the defendant filed its affidavit for a continuance, and the application was granted and the cause re-set for February 20, 1922. On February 15, 1922, the defendant made oral application, in Division No. 1 of the court, for leave to file its amended answer and counterclaim, which was denied. The counterclaim set up the creation of the War Industries Board in the World War period, and its powers, and alleged that the plaintiff herein requested said War Industries Board to allocate and purchase for it certain quantities of iron; that said War Industries Board, about October 22, 1918, allocated to, and in writing ordered from the defendant herein 6,000 tons of pig iron at $39.60 per ton, to be manufactured for and delivered to the plaintiff, by the defendant, in equal monthly installments during the first half of the year, 1920; that said allocation and order was accepted by the defendant; that defendant was ready and willing to deliver said iron in accordance with said provisions, but that plaintiff failed and refused to accept and receive the same, or any part thereof, whereby the defendant was damaged in the sum of $129,000 and defendant prayed judgment for that sum against the plaintiff. Division No. 1 considered the application to file the amended answer and counterclaim on February 15, 1922, and denied the application. On February 20th, the cause was laid over to February 23, 1922, and on February 23, 1922, the plaintiff renewed its application in Division No. 1, and its application was again overruled, and on that ground defendant asked that the cause be continued. The application for the continuance was denied, and the cause assigned for trial in Division No. 13. The defendant renewed its application to file the counterclaim. Division No. 13 refused to review the action of Division No. 1, or to permit the filing of the counterclaim, and the cause was on that day taken up for trial. The court, Division No. 13, refused the application essentially upon the ground that the action of Division No. 1 would not be reviewed, but referred also to the length of time the cause had been pending relative to the time at which the offer was made to file the counterclaim. The amendment asked to be filed by the defendant consisted solely of the counterclaim which set up an independent cause of action against the plaintiff, and which, according to the allegations, had fully accrued some months before the contracts here sued on were made, and about two years before the plaintiff's suit was filed. The counterclaim was the subject-matter of a suit which the defendant was at any time authorized to prosecute against the plaintiff, and the defendant was not deprived of this right by the refusal to permit the filing of an amended answer in which the amendment consisted solely of the counterclaim set up. The rule is that trial courts should be liberal in allowing amendments. [Ensworth v. Barton, 67 Mo. 622; Lottman v. Barnett, 62 Mo. 159.] Yet, such matters rest largely in the discretion of the trial court. [Clark v. St. Louis Transfer Ry. Co., 127 Mo. 255; State ex rel. v. Sandusky, 46 Mo. 377; Dozier v. Jerman, 30 Mo. 216.] And by the same, and other authorities, it is held that this court will not interfere, unless it is apparent that the discretion has been arbitrary and unjustly exercised. The circumstances here shown are not such as we can say that there was an arbitrary and unjust exercise of discretion in denying the right to file the counterclaim.

The record shows that the trial of this case consumed five days; that in the course of the trial the various questions raised by counsel for the respective parties were thoroughly and ably discussed, and that the learned trial court gave a most considerate attention to all the evidence and to all the questions involved. We have reached the conclusion that the court committed no reversible error, and that the judgment should be affirmed.

PER CURIAM.

The foregoing opinion of LINDSAY, C., in Division, is adopted as the opinion of Court in Banc. All of the judges concur, except Graves, C.J., and Walker, J., who dissent.