Volume 100 — Missouri Appeal Reports

<p>Appeal from. St. Louis Circuit Court. — Now. John A. Tatty, Judge.</p> <p>(1) The contract provides for compensation by way of fixed allowance, ‘ ‘ during his continuance as agent under this contract,” in the shape of commissions on the first premium and on the next five subsequent renewals on all business written by plaintiff. The termination of the contract did not involve loss of commissions on renewal premiums already earned and allowed. Spaulding v. Life Ins. Co., 61 Me. 322; Hale v. Ins Co., 46 Hun 294. (2) Every canon of construction leads to this interpretation of the contract. The cardinal principle of construction is that common sense and good faith are the leading characteristics of all interpretation. Fenton v. Perkins, 3 Mo. 23; Bank v. Haywood, 63 Mo. App. 550. (3) A contract should be- so interpreted as not to give an unfair advantage to one of the parties to it over the other. McManus v. Fair Shoe & Clothing Co., 60 Mo. App. 216. (4) Courts will look at all the circumstances, the occupation and relation of the parties, the subject-matter, the usages of the business, and ascertain by reasonable inferences what the parties must have understood and mutually expected. (5) The language of a contract is to be construed against the person drawing it, and if he desires to make a payment conditional he must do so distinctly and unmistakably, otherwise it is to be taken as absolute. Verba fortius accipiuntur contra proferentem. Shine’s Admr. v. Bank, 70 Mo. 524; Hurley v. F. & D. Co., 68 S. W. 958; Nordyke & Morman Co. v. Kehler, 155 Mo. 656. (6) The contract is an entirety and the party seeking to recover not only may, but must, include in his action all damages in suing for a breach thereof. Lewis v. Ins. -Co., él Mo. 539; Aetna Ins. Co. v. Nesen, 84 Ind. 348; Ensworth v. Life Ins. Co., 1 Flip. 92; Wells v. Life Assn., 99 Fed. 222; Stagg v. Ins. Co., 10 Wall. 589; Ins. Co. v. Williams, 91 N. C. 69; Jacobson y. Life Ins. Co., 61 Minn. 330.</p> <p>(1) This case presents the novelty of being a suit on a contract, which, according to the allegations of the petition and the proof adduced, was terminated by mutual consent, at the instance of appellant, long prior to the institution of this suit. It was, therefore, at the time of the institution of this suit, according to the logic and reason of the situation, a dead contract, it having been terminated m toto without reservation. The record in this case does not show ¡a resurrection of this-contract, and, as it is nowhere shown that the breath of life was ever breathed into it after its termination by revival or otherwise, we are constrained to believe that it is still dead, and can not form the basis of a suit. (2) One of the rules of law is that there should be interpretation of contracts only where it is needed;-that is, where the meaning is in doubt. The general rule of interpretation of contracts is the intention of the parties, and it is the duty of the court to construe it according to its terms. Bishop on Contracts, secs. 379, 380; Thornton v. Rioyce, 56 Mo. App. 179; Conrad v. DeMontcourt, 138 Mo. 311. The court is not concerned with the virtues of contracts, as being partial to either party. The bargain made, as evidenced by the contract, is the one the court enforces. Courts do not make new contracts for parties.</p>

Appeal'from St. Louis Circuit Court. — How. S. P. Spencer', Judge. STATEMENT. Respondent, The Supreme Lodge Order of Mutual Protection, is a. fraternal beneficial association incorporated under the laws of Missouri. It does business on the lodge plan. Franciska Richmond was a member of Lodge No. 20, located in the city of St. Lonis.

Appeal’ from St. Louis Circuit Court. — Ho». I). D. Wood, Judge. (1) Where the testimony fails to disclose any definite damages, the court should instruct the jury to find for the plaintiff in nominal damages only. Pinney v. Berry, 61 Mo. App. 359; Morrison v. Tancey, 23 Mo. App. 670; Evans v. City of Joplin, 76 Mo. App. 20. (2) It is therefore error to authorize a verdict for a substantial amount, in the absence of evidence tending to show the extent of the pecuniary loss.

— Hon. Elliott M. Hughes, Judge. (1) This is an action brought to cancel a note for $1,700, and a bill of sale on forty head of cattle, given to secure it, for an accounting. The purpose of the accounting was to show that there was not only no consideration for the note, but that at the date of the execution of the note the defendant was actually indebted to the plaintiff. (2) It will be necessary for the court to review the entire record.

<p>Appeal from Monroe Cirenit Court. — Ho». David H. Eby, Judge.</p> <p>(1) The court erred in admitting’, over defendant’s objection, any evidence concerning’ the condition of the fence and cattle guards. Such evidence did not tend to sustain any issue under the third count of the petition. At any stage of the ease that evidence could only have related to the first and second counts, neither of which was properly involved in the last trial. (2) The second one liad been dismissed and should have been out of the case altogether, while the first one was really concluded by a verdict for defendant on the first trial. (3) The first and second counts only remained* in the case for entry of final judgment on them when'the case was finally disposed of. Needles v. Burk, 27 Mo. App. 211-214; s. c., 98 Mo. 476; Boeger v. Langenburg, 97 Mo. 390. (4) The court further erred in refusing the demurrer to plaintiff’s evidence. If we concede that plaintiff’s only witnesses on the subject were qualified to speak concerning the distance in which a train could be stopped, still there was a failure of proof by plaintiff. According to plaintiff’s witnesses the train could not have been stopped in time to avoid injuring the mare. Plaintiff’s case depended upon his proving affirmatively that it could have been safely shopped in time. It was so decided on the former appeal in this ease. Buckman v. Railroad, 83 Mo. App. 129.</p>

<p>1. Sale: VENDEE: FRAUD: INTENT. Where an insolvent vendee purchases goods with the intention of never paying for them, the sale is fraudulent.</p> <p>2. -: -: -: REPLEVIN: ATTACHING CREDITOR: EXECUTION CREDITOR. And where an insolvent vendee purchases goods with, the intention of never paying for them, the seller may take the goods from an attaching or execution creditor.</p> <p>3. Vendee: EVIDENCE: INTENT. Evidence that a vendee was insolvent and unable to pay for goods when he ordered them is not conclusive evidence that he never intended to pay for them.</p> <p>4. Insolvency: VENDEE: INTENT TO PAY: INFERENCE. Insolvency is a circumstance tending to prove an intent never to pay for goods ordered by the vendee, and the more hopeless the insolvency, the stronger is the inference to be drawn that the insolvent vendee never intended to pay.</p> <p>5. Vendor: VENDEE: KNOWLEDGE-OF VENDEE. No obligation rests upon an insolvent vendee to disclose his financial condition to his vendor, unless inquiry is made of him by the vendor concerning the samé.</p>

— How. E. M. Hughes, Judge. STATEMENT. On March 3,1898, J. W. Crawford borrowed of the defendant. Farmers and Merchants Bank of Centralia, Missouri, six hundred and sixty dollars and gave his note for the same due six months after date. Crawford used this money to pay the purchase price of twenty-six head of steer calves and on the same date gave the said bank a chattel mortgage on the calves to secure the payment of the note.

<p>Abstract of Record: DISMISSED: FAILURE TO COMPLY WITH STATUTE AND RULE. Case dismissed for the reason that appellants’ abstract of record contains no pleadings, nor digest of any, nor any statement of any, nor any showing that the bill of exceptions was ever filed.</p>

— No». L. B. Wood-side, J udge. STATEMENT. The appeal is by the State from the judgment of the circuit court in sustaining a motion to quash the information and discharging the defendant. No abstracts or briefs have been filed in this court by either party.

Jas. L. Fort, Judge. STATEMENT. On December 15,1900, plaintiff filed in the probate court of Butler county the following demand against the estate of Laura J. Hildebrand: ‘ ‘ The Estate of Laura J. Hildebrand, April, 1900.

Louis City Circuit Court. — How. 8. P. Spencer, Judge. STATEMENT.

<p>.Tax Sale: SUIT TO RECOVER PURCHASE MONEY: SUBSEQUENT TAXES PAID. This cause presents the same issues as the case of Rowe et al. v. Current River Land & Cattle Company, 99 Mo. App. 158, and necessarily follows the opinion in that case, which rules that the holder of a void tax deed, who subsequently paid the taxes on the property, would not be entitled to recover of a successful party against him, the amount paid at the tax sale together with subsequent taxes.</p>

<p>1. Association, Beneficiary: BENEFIT CERTIFICATE: SUICIDE DOES NOT INVALIDATE POLICY: PUBLIC POLICY, INEFFECTIVE. Where a beneficial association had so interpreted its contracts as to render itself liable thereunder, though the certificate-holder committed suicide while sane, by providing that the company should not be liable if the insured committed suicide within two years after the issuance of the certificate and by thereafter passing by-laws that if insured committed suicide, his beneficiary should be entitled to only one-half of the face of the policy, it could not be contended that a certificate was invalidated by suicide on the ground of public policy.</p> <p>2. -: STATUTE OF ANOTHER STATE MUST BE PLEADED: COMMON LAW CONTROLS. Where in an action on a policy made in Illinois and subject to its laws, such'laws relating to the defense urged were not pleaded, defendant's liability must be determined according to the common law.</p> <p>3. --: USAGES OF SOCIETY: BY-LAWS AS AMENDED NOT BINDING, WHEN: ONE-HALF OF BENEFIT. A benefit certificate bound insured to comply with all the laws and usages of the society then in force, or which might be thereafter adopted by the order. At tñe time the certificate was issued one of the by-laws provided that if any member committed suicide within two years, defendants should be liable for one-half of the face of the policy, and thereafter such by-law was amended at various times until it finally provided that if any member should die by suicide, his beneficiaries should only receive one-half of the benefit of tbe certificate: Held, that the provision of the certificate requiring compliance with future regulations related only to such regulations as affected the member’s duties as a member, and that such member was therefore not bound by the by-law as amended.</p> <p>4. -: —-: INTERVENTION BY CURATORS: TOO LATE AETER JUDGMENT. Motions to intervene in an action and thereby be substituted as curator for the plaintiff, not filed until after judgment, were properly overruled.</p>

<p>1. Probate Judge: R. S. 1899, SEC. 1760, CONSTRUED: INTERESTED AS COUNSEL. Under Revised Statutes 1899, section 1760, providing that the probate judge may practice as an attorney in any of the courts of the State except his own, but shall not sit in a case in which he may have been counsel, and when a party interested in the litigation shall file written objections verified by affidavit alleging that such judge has been of counsel in the cause, then it shall be the duty of such judge to certify the cause to the county or circuit court for decision.</p> <p>2. -: -: AFFIDAVIT, ALLEGING INTEREST OF JUDGE. The affidavit filed, charging the judge with having been of counsel for some of the parties in the cause, can not be passed on by the judge, but under the statute, it becomes his duty to certify the cause to the circuit court.</p> <p>3. -: -:. EXCEPTIONS TO REPORT OF ADMINISTRATOR. The fact that the probate judge is alleged to have been of counsel, only in some of the matters of exceptions, will not warrant his retaining jurisdiction of the other excejrtions to the report, but the exceptions as a whole, should be certified to the circuit court.</p>

— Now. N. C. Pepper, Judge. STATEMENT. Defendants J. B. Rorick and S. C. Ewing were engaged, as partners, in the mining business at Aurora, Missouri, in the years 1899 and 1900. As partners they borrowed money of the plaintiff aggregating $4,-192.63, evidenced by their two promissory notes. They failed in the mining enterprise and their mining property was sold under a mortgage and proceedings in an attachment suit, and passed from their control.

Louis City Circuit Court. — How. D. D. Fisher, Judge. STATEMENT.

Louis City Circuit Court. — Ho». D. D. Fisher, Judge. (1) The entry of satisfaction of a judgment upon the record is prima facie evidence of payment and its legal effect is the extinguishment of the judgment debt. Hughes v. Streeter, 24 111. 647; Milligan v. Bowman, 42 Iowa 414; Parker v. Sedwick, 5 Md. 281; Rochester Distilling Co. v. Devendorf, 72 Hun (N. T.) 622; Carter v. Adamson; 21 Ark. 287; 17 Am. and Eng. Ency. Law (2 Ed.), 865.

<p>Appeal from Newton Circuit Court. — Hon. Henry G. Pep-per, Judge.</p> <p>(1) Where the reasonable probabilities from the evidence all point to suicide as cause of death so as to establish it in the light of reason and common sense with such certainty as to leave no room for reasonable controversy, a jury should not be permitted to find to the contrary, and have such finding stand as a verity in the case, but the court should decide the question as a matter of law. Agen v. Life Ins. Co., 80 N. W. 1021; Rens v. Mutual Relief Ass’n, 75 N. W. 991; Reichenbach v. Ellerbe, 115 Mo. 588, and cases cited. (2) No subordinate lodge or officer thereof has power to waive the requirements of the by-laws of the parent organization in so far as the rights of the latter are concerned. Curtain v. Grand Lodge, 65 Mo. App. 294; Borgraefe v. Knights of Honor, 22 Mo. App. 127; Harvey v. Grand Lodge, 50 Mo. App. 477; McMahan v. Maccabees, 151 Mo. 522; Modern Woodmen v. Tevis, 117 Fed. 369; Northern Assurance Co. v. Grand View Bldg. Ass’n, 183 U. S. 308; Kocher v. Supreme Council, 52 L. R. A. 861; Niblack, Mut. Ben. Soc. (2 Ed.), p. 1069; McCoy v. Mut. Ins. Co., 152 Mass. 272; Lyon v. Supreme Assembly, 153 Mass. 83; Groll v. Tower, 85 Mo. 253; Adreveno v. Life Ass’n, 34 Fed. 870; Carrington v. St. Louis, 89 Mo. 226; Squires v. Chillicothe, 89 Mo. 226; Cohen v. Ins. Co., 41 N. T. 296; Railroad v. Martin, 40 Mich. 667; Foley v. Royal Arcanum, '45 N. E. 456; Rosseau v. Bleau, 131 N. Y. 177; Keller v. Life Ins. Co., 69 S. W. 612.</p> <p>(1) The contention below and here made by respondent was and is that the defendant being a foreign corporation with a mere license to do business in this State is not exempt from sections 7890 and 7896, Revised Statutes 1899, relating to life insurance. Kern v. Legion of Honor, 167 Mo. 471; Toomey v. Sup. L. K. of P., 147 Mo. 29; s. e., 74 App. 50; Huff v. Woodman, 85 Mo. App. 96. (2) There is no limitation on his authority whatever in the application or policy; and none in the by-laws except the general, indefinite and sweeping clause of the by-laws that “no officer of this society nor any local camp or officer thereof is authorized or permitted to waive any of the provisions of these by-laws or of any other laws of this society which relate to the substance of the contract for the payment of benefits, etc. ” Such clauses are held to be void on the ground that a corporation which can act only through officers and agents, can not tie the hands of all of them and thus totally incapacitate itself to do business, They must leave some one possessing the requisite authority. Burdick v. Life Association, 77 Mo. App. 629; Life Ins. Co. v. Robinson, 58 Fed. 723; Crouse v. Ins. Co., 44 N. W. (Mich.) 497; Kansal v. Association, 31 Minn. 17, 16 N. W. 430. (3) The plaintiff in this case was entitled to recover on the pleading on the issue of suicide, unless the defendant by competent evidence overcame the presumption and satisfied the jury by a preponderance of evidence that the injury which caused the death of the deceased was intentional on his part. Ins. Co. v. Mc-Conkney, 127 U. S. 661; Brower v. (Supreme Lodge, 74 Mo. App. 495; Ingersoll v. Knights Golden Rule, 47 Fed. 272; Bacon on Benefit Societies and Insurance, sec. 336a.</p>

— Ho». J. L. Fort, Judge. STATEMENT. The suit was begun before a justice of the peace to recover one carload of stave bolts alleged to be of the value of $75, and alleged to have been shipped to defendant from Hendrickson, by one Robert Byrkett, on or about the first day of December, 1900.

Louis City Circuit Court. — --How. H. D. Wood, Judge. STATEMENT. Plaintiff is a corporation engaged in the manufacture of chemicals in the city of St. Louis. The defendant is an incorporated association doing business as a eommoh carrier.

<p>Deposition: FEES OF COMMISSIONERS. The head notes of the case of Paxson v. MacDonald, decided December 9, 1902, and reported in 97 Mo. App. 105, is here referred to as applicable to this ease.</p>

Charles Circuit Court. — How. E. M. Hughes, Judge. STATEMENT.

Louis Circuit Court.— Hon. Wm. Zackritz, Judge. Held: that the order was an implied assurance that there was no danger; that the laborer properly relied on the superior information of the master, and that the latter was liable. Keegan v. Kavanaugh, 62 Mo. 230; Schroeder v. Railroad, 108 Mo. 323, and eases cited. Stephens v. Railroad, 96 Mo. 207.

— Row. L. B. Woodsicle,, Judge. (1) The rule that a borrowing stockholder will not be permitted to recoup his indebtedness by the amount of his payments on shares- of stock issued to him, is the universal law governing the administration of the affairs of insolvent building and loan associations. H. S. Building & Loan Ass’n v. Reed, 62 S.- W. 1020; TJ.

— Row. R. G. Pepper, Judge. (1) Such, signed writing as the statute requires must contain all essential elements of the contract, including the agreed consideration, or the memorandum must be held fatally defective. Kelly v. Thuey, 143 Mo. 422; Boyd v. Paul, 125 Mo. 9; Ringer v. Holtzclaw, 112 Mo. 519. (2) So it is where the action was for work under specific contract set out, with statement of credits of payments, asking judgment for balance.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (I) • The insured in his application and certificate contracted to be bound by all laws in force at the time it was issued or thereafter to be enacted by the supreme commandery. In such case changes made in the laws are not in violation of the contract, but are in harmony with it. This' is the law of the State of Mississippi, where the contract was made.

Louis City Circuit Court. — Hon. Franklin- Ferris, Judge. .(1) An agreement to reward a public officer (a policeman) for doing that which it is his duty by law to do, is void as against public policy. “Once allow an officer to contract for extra compensation for the discharge of his duty, and bribery will become the means by which alone the laws, could be executed.” Kick v. Merry, 23 Mo. 72.

Louis City Circuit Court.— Eon. Wm. Zachritz, Judge. The jurisdiction of the probate court in St. Louis to hear and determine the application of appellant was not ousted by the grant of letters in Jackson county which was made prior to such application. Cox v. Boyce, 152 Mo. 576; Meinicke v. Grothaus, 72 Mo. 204; Bank v. Wilcox,. 15 R. I. 258; In re Estate of King, 105 Iowa 320; Miller v. Swan, 91 Ky. 36; State v. Wear, 145 Mo. 202; Garrison v. Lyle, 38 Mo.

Louis City Circuit Court. — How. D. D. Fisher, Judge. (1) The filing of the involuntary petition was notice to all the world. Miller v. Nugent, 184 U. S. 1; Rank v. Sherman, 101 U. S. 403. (2). The filing of-the involuntary petition was in effect an attachment and injunction. Miller v. Nugent, 184 U. S. 1; In re Krinsky Bros., 7 Am. B. R. 535; In re Gutman & Wenk, 8 Am. B. R. 252.

Lonis Court of Criminal Correction.— 1-Ton. W. IT. Clark, Judge. (1) The judgment should have been arrested because the information in the case is insufficient to support the verdict and judgment in this: The information is signed “Gr.

— Ho». Edwin B.. McKee, Judge. (1) The first amended petition on which the case-was tried does not state facts sufficient to constitute a cause of action against the defendant. Price v. Railroad, 72 Mo. 414; Waldhier v. Railroad, 71 Mo. 514.. (2) The court at the close of all the evidence in the cause should have instructed the jury to find for the defendhnt as requested by defendant. Webster v. Railroad, 57 Mo. App. 452; Pearson v. Railroad, 33 Mo.

— Wow. Henry G. Riley, Judge. STATEMENT. On March 2, 1897, E. Still and N. Gibson were the joint owners of the east half of the southwest quarter, section 21, township 17 north, of range 11 east, situated in Pemiscot county, Missouri. On said date E. Still, representing himself as the sole owner of said land, sold the same to J. K. Baker, a resident of the State of Tennessee, for $240, and executed and delivered to him a warranty deed therefor.

Louis City Circuit Court. — Now. P. R. Flitcraft, Judge. (1) The subcontractor’s notice of lien must be served on- the person who was the owner of the real estate at the time the work was contracted for and done. Hewett v. Truitt, 23 Mo. Ápp. 443; Doyle v. Truitt, 23 Mo. App. 448. (2) And such owner having died prior to the service of notice, there was no person upon whom such notice could be served. Taafe v. Ryan, 25 Mo. App. 56.

<p>1. Taxbill: CHARTER: ANSWER: NON-COMPLIANCE WITH CONTRACT. Under the charter of the city of St. Louis, providing that the party charged with payment of a taxbill' may plead in reduction thereof that the work was not done in a workmanlike manner, an abutting owner assessed for street paving can set up as a defense the contractor’s failure to lay the paving according to the contract.</p> <p>2. -: -: CONTRACT: WARRANTY. If the contract for street paving required the contractor to warrant the pavement for one year after its completion, the defendant in an action on a special taxbill may offer evidence showing the condition of the pavement during the first year after it was laid.</p> <p>3. -: PETITION: GENERAL DENIAL: ISSUE. Where the petition in an action on a special taxbill alleged that the work was completed “in the manner” prescribed by the contract, a general denial would not raise the issue, that the work was not completed within the time required.</p> <p>4. -: ORDINANCE: IMPROVEMENTS: REASONABLE TIME. Where a city ordinance, directing an improvement, fixed no time for its completion, but the contract fixed a time and contained a proviso that the contractor should suffer a per diem penalty for failure to complete within the time, a taxbill against an abutting owner was not void for the contractor’s failure to complete the improvement in time, if it was finished within a reasonable time.</p> <p>5. -: -: - — : WHETHER ESTOPPED, A QUESTION EOR THE JURY. Defendants joined in the nrotest against the widening of the roadway and did not object to the width of the pavement after the change, but did object to the kind of material used: Held, that whether defendants were estopped to defend on the ground that the pavement was thirty instead of thirty-six feet wide, was for the jury.</p> <p>6. -: -: -: PROPERTY-OWNER: ESTOPPEL. While a property-owner may not be precluded from setting up a defense in a taxbill that the improvement was not made according to the ordinance ordering it, by merely seeing the work improperly done without protesting, he can not induce a departure from the ordinance and contract by his own acts, and then avail himself of the change to escape the payment, because estopped by his own conduct in the premises.</p>

<p>1. Equity: INJUNCTION AGAINST TRESPASS: AMENDED PETITION: NO DEPARTURE IN PLEADING. Where a petition alleged that plaintiff was the owner of certain timber 'lands; that defendants were wrongfully cutting timber thereon; that the timber constituted the principal value of the land; and that if defendants, who were insolvent, were not enjoined plaintiff would be deprived of the timber without any adequate remedy at law; and prayed an injunction — an' amended petition, alleging the value of the timber which had been removed to be $500, and another paragraph, alleging generally that plaintiff had been damaged, but neither stating in what sum, nor praying judgment therefor, was not subject to a motion to strike it out, as a departure from the original petition.</p> <p>2. -: -: PAROL EVIDENCE: DEED BEST EVIDENCE. In a suit to restrain defendants from cutting timber on land alleged" to belong to plaintiff, parol evidence that since the institution of the suit plaintiff had conveyed the timber to a third person, was inadmissible over objection that the deed was the best evidence thereof.</p> <p>3. Swamp Land: DEED IN PURSUANCE OE STATUTE, VALID: CONSTITUTIONAL QUESTION. Where swamp lands donated to the State were patented to a county, and conveyed by the grantee through mesne conveyances to plaintiff, as authorized by act of General Assembly, October 2(3, 1857, an objection that tbe conveyance from the county was void, must be based on the p-round that the act was unconstitutional, and, therefore is not within the jurisdiction of the Court of Appeals.</p> <p>4. -: COUNTY’S PATENT GOOD: POSSESSION OP PAST, POSSESSION OP THE WHOLE, WHEN. Where swamp lands were conveyed by a county, to which they were patented by the State, by mesne conveyances to plaintiff, and plaintiff had been in actual possession of a part of the land by a tenant claiming title to the whole, her title thereby acquired was superior to a title acquired by virtue of an execution sale of the land on a judgment against the county, after the county had parted with its title.</p> <p>5. Injunction. Against Cutting Timber: EVIDENCE ADMISSIBLE TO SHOW DEEDS A SHAM!, WHEN. Where, in a suit to restrain defendants from cutting timber on plaintiff’s land, plaintiff alleged that deeds under which defendants claimed were shams, and manufactured for the purpose of defeating criminal prosecutions for taking the timber, plaintiff was entitled to show such fact at the trial in order to invalidate such conveyances.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. John A. Tatty, Judge.</p> <p>Where there is no conflict in the evidence submitted to the jury, and the verdict is against all the evidence introduced, there being no evidence at all to support it, the jury will be presumed to have misunderstood or willfully disregarded the instructions of the court and to have been guilty of misapprehension or perversion of the law or will he presumed to have been influenced by prejudice, corruption or to have been guilty of such gross ignorance as to amount to misbehavior on its part and a new trial should be awarded without reference to the number of new trials which preceded it. Hill v. Deaver, 7 Mo. 57; Wright v. Adams, 76 Mo. 605; Price v. Evans, 49 Mo. 396; Spohn v. Railway, 87 Mo. 74; Walton v. Railroad, 49 Mo. App. 620; Loinberger v. Pohlman, 16 Mo. App. 392; Friez v. Fallon, 24 Mo. App. 439; Suddoth v. Brien, 39 Mo. App. 652,</p> <p>In this case two juries decided in favor of the conclusion of honesty and against the conclusion of fraud. In Gannon v. Gas Co., 145 Mo. 516, the court says: “If this court can not set aside the finding of the jury on the matters of fact involved in the issue raised by defendants’ answer, we must assume to ourselves the prerogative which the writer has always thought, under our Constitution and laws, rested exclusively with the jury. If we can set aside this finding on the grounds that the defendant’s proof was undisputed, and sufficient as a defense, we ought to reverse the case, and in that we have made the finding of facts, and passed our judgment thereon contrary to the finding of the jury, with the apparent sanction of the trial court, as indicated by its refusal to set aside the finding so made by them.” Frankenthall v. Goldenstein, 44 Mo. App. 189.</p>

Louis City Circuit Court . — Hon. Wartuiclc Hough, Judge. STATEMENT.' This suit was brought before Justice Spaulding in the city of St. Louis on the following premium note: “483.75. ' “For value received, in Policy No............., dated the 20th day of February, 1894, issued by the American Guaranty Fund Mutual Fire Insurance Co., of St. Louis, I promise to pay said company (or their treasurer for the time being) the sum of four hundred and eighty-three dollars and…

<p>1. Municipal Corporation: ESTIMATE SPECIAL ASSESSMENTS. Under section 5858, Revised Statutes 1899, providing that an estimate of the cost of any municipal improvement shall be made, such an estimate is a prerequisite to the letting of a contract for an improvement.</p> <p>2. -: -: CONTRACTS. No contract can be entered into for a municipal improvement at a price exceeding the estimate of its probable cost.</p> <p>3. -: -: -: STATUTORY CONSTRUCTION. Under tne provisions of section 5860, Revised Statutes 1899, requiring that contracts for municipal improvements shall be let on plans filed with the city clerk, a contract for an improvement, the plans for which were not filed with the city clerk, is invalid.</p>

<p>1. Injury, Personal: BAGGAGE AGENT: NEGLIGENCE: OPEN SWITCH. Whether there was negligence in leaving open a switch to a sidetrack, into which the train on which plaintiff was a baggage agent ran, injuring him, is a question for the jury, there being evidence that a switchman of another train opened it, and left it open after his train had picked up cars from the sidetrack,</p> <p>2. -:-: --: INSURANCE OE THE INJURED DOES NOT RELEASE COMPANY: NO CONTRACT TO RELEASE. The insurance by a railroad employee in an accident eompaav against injury in his employment, the premium being paid partly by him and partly by his employer, and acceptance by him of benefits thereunder, does not discharge his employer from liability to him, there being no contract by which he accepted or agreed to accept the insurance money in settlement of his claim against his employer.</p> <p>3- -:' -: VERDICT NOT EXCESSIVE. The verdict of $2,000, under the evidence, not regarded as excessive, the injured being but forty-five years old, his right hand being permanently injured and other injuries probably permanent.</p>

— Hon. Henry G. Riley, Judge. STATEMENT. The suit is on an account and was commenced before a justice of the peace: In aid of the suit plaintiff sued out a writ of attachment. The affidavit for the attachment contains the following statutory grounds: 1. That the defendants are about fraudulently to conceal, remove, or dispose of their property so as to hinder and delay their creditors. “2.

David H. Hby, Judge. (1) Prosecutions of this character are civil actions and the rules of pleading and procedure in civil eases must he applied to them. City of Savannah v. ■Dickey, 33 Mo. App. 522; Stephens v. K. C., 146 Mo. 460; In re Miller, 44 Mo. App. 125-148; St. Louis v. Vert, 84 Mo. 204; St. Louis v. Knox, 74 Mo. 79; St. Louis v. Hollowed., 74 Mo. 395; Kansas City v. Clark, 68 Mo. 588. (2) Defendant is only entitled to be informed of the ordinance he violates.

<p>Abstract, Statement and Assignment of Errors, Omitted: ONLY THE RECORD PROPER. No error, arising on the record, having been discovered, the judgment of the trial court is affirmed.</p>

Louis City Circuit Court. — Hon. P. B. Fitter aft, Judge. STATEMENT.

Louis City Circuit Court. — -How. Selden P. Spencer, Judge. (1) The instruction offered at the close of the plaintiff’s case in chief, and at the close of all the evidence in the ease, should have been given. The plaintiff drove several blocks in the track, well-knowing the likelihood of a car coming up behind him in the dark, and never looked back to ascertain whether a car was approaching or not. The car had a headlight upon the same, and was lighted upon the inside.

<p>1. Railroads, Street: DEMURRER TO EVIDENCE, PROPERLY OVERRULED. Whether the facts are disputed or undisputed, if different minds might honestly draw different conclusions from them, the case should be left to the jury. Applying this rule to this case, no error was committed in the trial by not withdrawing the case from the jury.</p> <p>2. -: RENEWAL OE DEMURRER AT CLOSE OE CASE: EEEECT OE. If defendant renews his demurrer at the close of all the evidence, and then prays the court to instruct the jury to find a verdict for him, he is entitled to a review of all the evidence on the question as to whether plaintiff has made a case.</p> <p>3. -: INSTRUCTIONS NOT MISLEADING, WHEN. In an action for injuries to a motorman by a collision with a car of another company at a crossing, the court charged that it was the duty of defendant company to use ordinary care to prevent collisions and to observe the provisions of the city ordinances which gave plaintiff’s car the right of way, and that if defendant in' the operation of the car which collided with plaintiff’s car failed to give plaintiff’s car the right of way, and negligently collided with plaintiff’s car, by reason of which he was injured, plaintiff was entitled to recover. Held, that such instructions were not erroneous as misleading.</p> <p>4. -: ACCEPTANCE OE ORDINANCE BY COMPANY: INSTRUCTION. In an action for injuries to a street railway motorman by collision with a car of another company at a crossing, the fact that plaintiff proved that defendant had accepted a city ordinance which gave plaintiff’s car right of way at the crossing, did not require an instruction on such subject, since the ordinance was binding on defendant without acceptance.</p>

— Now. J. T. Neville, Judge. STATEMENT. This is an .action by the trustee of a bankrupt’s estate to recover a preferential payment alleged to have been made by the bankrupt to the defendant, and was brought originally in the circuit court of Webster county, but removed on a change of venue to the circuit court of Greene county.

— Hon. David H. Ely, Judge. (1) There was an absolute and unconditional sale and delivery, of this machine to the defendant, with a conditional warranty.

— Ho». J. T. Neville, Judge. STATEMENT. The petition in this case is as follows, omitting caption “Plaintiff states that the defendant is and was at all times hereinafter mentioned, a corporation organized under the laws of the State of Kansas, and having capacity to sue and liable to be sued as such; that the defendant, at times hereinafter Stated, operated a line of railroad running from Kansas City, Missouri, through Springfield, Missouri, to Memphis, Tenn. “Plaintiff…

Louis City Circuit Court. — How. D. D. Fisher, Judge. STATEMENT.

— Eon. E. B. McKee, Judge. STATEMENT. In 1898, and prior thereto, plaintiff was in the employ of the defendant railroad company as section foreman, and on March 10th of that year, while in the discharge of his duty, his right leg was broken a few inches above the anide joint. He was taken to his home in the city of Canton, in Lewis county, the accidnet having occurred a short distance away, and Hr.

Howell Circuit Court. — Ho». Wm. N. Evans, Judge. (1) A day in law embraces twenty-four hours, and each party had that time in which to perform, or offer to perform, his contract. 1 Parsons on Contracts (5 Ed.), sec. 532; Beach, Mod. Law of Contracts-, sec. 306; Lariman v. Hornbaker, 21 Ind. 430; Tiernan v. Napier, 5 Yerg\ 410; Aldrich v. Albee, 1 Grenl. 120; Savary v. Goe, 3 Wash. C. C. 140; Startup v. McDonald, 6 Man. and G. 593.

— Ho». J. L. Fort, Judge. STATEMENT. The statement prepared by appellant having received the approval of respondent, is adopted by this court as a correct recital of the facts in the case, and is as follows: This suit was brought by the plaintiff against the defendant before a justice of the peace in Stoddard county, Missouri, for the killing of plaintiff’s animal by the trains Of the Southern Missouri & Arkansas Railroad Company on November 3, 1901.

— Hon. H. G. Riley, Judge. (1) The court erred in refusing instruction No. 5 asked by defendants. R. S. 1899, see. 3418. Plaintiffs occupied the land under a five-year verbal lease from Rhodes. The land was conveyed from Rhodes to 0 ’Toole and from 0 ’Toole to defendants. The clover crop was not reserved to plaintiffs. Defendants were the owners of the clover. That portion of plaintiff’s demand relating to clover is $100.

<p>1. Parent and Child: DECOYING MINOR FROM HOME: DAMAGES: PROOF DOES NOT SUSTAIN CHARGE.’ Action to recover damages for wrongfully decoying a minor son from home whereby his mother was deprived of his services, which she claimed were reasonably worth one dollar per day, but as the evidence failed to show that her son was unlawfully enticed or decoyed from home, she was not entitled to recover.</p> <p>2. -: -. One who knowingly and designedly decoys a minor from his h,ome so as to deprive the parents of his services, or harbors a minor who has left home against the will of his parents, commits a tort and. is answerable in damages to such parent therefor.</p>

— Ho». W. L. Jarrott, Judge. (1) No entry was made ordering the information quashed and defendant discharged. (2) There was no adjudging the information insufficient and ordering it quashed. There was no final judgment in the case. State v. Mullin, 53 Mo. 355; State v. Fraker, 141 Mo. 638.

— lion. Geo. F. Longan, Judge. (1) Withholding appellant’s money when same had been demanded, amounted to a conversion, and the interest thereon for the time it was withheld is the measure of damages. Allgear. v. Walsh, 24 Mo. App. 134. (2) Respondent, having accepted the $117 from appellant as a voluntary bailee, was bound by the terms of such acceptance, and was estopped to question appellant’s right to the money upon demand.

— How-. H. G. Timmonds, Judge. A party has the right to a change of venue in special civil suits the same as in an ordinary civil suit. State v. Price, 38 Mo. 382; State ex rel. v. Hollenbeck, 68 Mo. App. 366; State v. Railroad, 113 Mo. 458; Main-son v. Coleman, 86 Mo. App. 18. (1) No notice was given, and therefore the circuit court was right in refusing a change of venue. R. S. 1899, sec. 822. And this notice is an indispensable prerequisite. Johnson v. Moffitt, 19 Mo.

— How. Geo. F. Lougcm, Judge. STATEMENT BY BROADDTJS, J. This is a suit by the appellant against Charles L. Taylor, administrator of the estate of Charles Gr. Taylor, deceased, and his bondsmen, James H. Doyle and W. H. Powell, Jr., on a demand of the appellant duly presented and allowed against the estate of Charles Gr.

— How. W. B. Teasdale, Judge. (1) The verdict was excessive. The whole testimony as to the permanence of the injury was, that the fibula was dislocated. It was replaced by the physician, in whose opinion the injury will be permanent to some extent. Says she will never be able to entirely have the perfect use of that limb. On this guarded opinion the permanence of her injury was submitted by plaintiff’s instruction No. 4, and the jury allowed her $3,000.

— Row. John W. Henry, Judge. (1) Upon the face of the whole record plaintiff was entitled to the verdict of the jury. The evidence establishes beyond controversy-that plaintiff became the tenant of the defendant under a verbal lease in which she agreed to pay a reserved rental of $25 per month,, dating from August 1, 1899, and that in consideration of such lease and occupancy defendants agreed to repair the premises and put them in a tenantable condition.

— Ho». H. C. Pepper, Judge. . STATEMENT. On January 15, 1901, the defendant the Mercantile Town Mutual Insurance Company, a corporation organized under article 11, chapter 119, Revised Statutes 1899, p. 1902, issued to T. H. Wimpey a policy insuring him for the term of one year thereafter, against all loss by fire to an amount not exceeding $1,350, this risk attaching to .and covering $350 on the building, $960 on stock of miscellaneous and assorted merchandise, and $40 on…

E. P. Gates, Judge. (1) Plaintiff utterly failed to establish by sufficient proof any custom binding upon defendant, making it the duty of a switchman who had failed to uncouple cars for any reason, and found it necessary for him to stop the train on account thereof, to give a slow or cautionary signal to the engineer or to a man riding a proposed cut off ears, or either of them. Shields v. Railroad, 87 Mo. App. 637; Cotton Press Co. v. Standard, 44 Mo. 71; Ins.

G. O. Techenor, Special Judge. (1) After this is so done by the property owners in a proper manner, (and the record in this case shows it was so done in this instance),to the satisfaction of one set of administrative officers, can the next set of like officers of their caprice declare snch provisions a nuisance and remove the retaining walls so erected, which hold the street to grade and are a part of the street?

— How. James Gibson, Judge. (1) They parted with nothing when they received it, and they have parted with nothing since they received it. If they return the money to Quarles they are out absolutely nothing; they are just where they started. If they are allowed to retain it, Quarles is out $200, for which he gets absolutely nothing. Hall & Co. are obliged by the ties of natural justice and equity to refund this money to Quarles. Clark v. Bank, 57 Mo.

— Ho». J. W. Wofford, Judge. (1) Kansas City has m> power under its charter to impose a separate license tax upon insurance companies and insurance agents. Art. 3, Subd. 10, City Charter; St. Joseph v. Ernst, 95 Mo. 360; St. Louis v. McCann, 157 Mo. 301. (2) The personality of the insurance agent must be distinguished from that of the insurance company. Farmington v. Rutherford, 94 Mo. App. 328; St. Joseph v. Ernst, 95 Mo. 360.

— Hon. Hugh Dabbs, Judge. (1) John Carlson clothed Williams with apparent title, and the law should protect the bank on the ground of estoppel even if the instruments were non-negotiable. Coudry v. Yandeburg, 101 U. S. 1. c. 575-6; Coudry v. Yandeburg, 154 U. S. 659; Looney v. District of Columbia, 113 U. S. 261; Laughlin v. District of Columbia, 116 U. S. 489-491; Preston v. Witherspoon, 109' Ind. 46-4; Hirsch v. Norton, 115 Ind. 343; Dymock v. Railroad, 54 Mo.

— Ron. James Gibson, Judge. (1) It is a'well established rule of law that when a contract is illegal or immoral or contrary to public policy, the parties being in pari delicto, melior est conditio de defendentis, neither can recover from the other money paid under the contract or maintain an action to enforce the contract. Ins.

— Ho». James Gibson, Judge. (1) Where a double employment exists and is not known to both principals no recovery can be had against the party kept in ignorance. De Esteiger v. Hollington, 17 Mo. App. 382; 40 Mich. 376; 71 Penn. St. 250; Story on Agency, 31-210; Bradley v. Insurance Co., 30 Mo. App. 372; 57 Kan. 576. (2) An agent can not represent antagonistic interests, and if be seeks to do so the contract can be avoided by either party.

<p>1. Negligence: ALLEGATA ET PROBATA: INSTRUCTION. Plaintiff may not recover for negligent acts of omission, as failure to prop- ■ erly maintain tlie hangings of a sign, under a petition charging negligent acts of commission, as carelessness in the original hanging of a sign, and an instruction permitting such recovery is condemned.</p> <p>2. Evidence: DAMAGES: DEATH LOSS: MORTUARY TABLES. Mortuary tables are proper evidence of the expectancy of life of a person negligently killed, but are not the only evidence, and a proper ease may be made without them.</p>

— Ho». James Gibson, Judge. (1) The case should never have been submitted to the jury and the demurrer of the defendant at the close of the plaintiff’s case and at the close of all of the evidence should have been given. The facts above given are' practically undisputed.

— Hon. John W. Henry, Judge. (1) Plaintiff’s instruction No. 1 is erroneous, because in fixing the defendant’s liability on implied notice it states the time when notice begins to run as “the time said sidewalks became defective.” Notice begins to run when the dangerous defect causing the accident begins to exist — not from the time some defect begins to exist in the walk. Such is the manifest meaning of the rule.

— Noto. N. G. Timmonds, Judge. (1) ' Under the undisputed facts, the chattel mortgage was a conveyance to the use of the grantor, fraudulent and void. It permitted the mortgagor to remain in possession and dispose of the mortgaged property and apply the proceeds to his own use and benefits instead of in the discharge of the debt secured by the mortgage.

— Mon. J. D. Perkins, Judge. (1) The defendant was only liable as a warehouseman and bound to take reasonable care of the property in its custody and was only answerable for loss occasioned by its fault or negligence. Gfáshweiler v. Railroad, 83 Mo. 112; Milling Co. v. Transit Co., 122 Mo. 275.

— Hew. Samuel Davis, Judge. (1) The appellant, as a'common carrier of freight and live stock, is only obliged to provide cars sufficient to haul such freight as would ordinarily be tendered it for transportation. It is not bound to anticipate an unusual influx of business, nor to anticipate an increased demand for cars for any kind of business at any particular portion of the year. McGfrew v. Railway, 109 Mo, 580, 586; Railroad v. Rea, 18 111. 488; s. c., 68 Am.

Original Proceeding by Habeas Corpus. (1) Let ns examine the subject of contempt, the several kinds and classes, the punishment, what constitutes contempt, and when a party will be punished for the same, and the kind of punishment, and we think after such examination the conclusion will be that Coggshall is not guilty of contempt. Section 3645, B. S. 1899. Section 1619, E. S. Mo. 1899.

— Ho». W. B. Teas dale, Judge. (1) The effect of the Nebraska foreclosure suit upon the indebtedness secured by the mortgage foreclosed, must be determined by the law of Nebraska which entered into and became as much a part of the decree as if specially inserted therein. Smith v. Moore, 53 Mo. App. 531; Minor’s Conf. of Laws, sec. 4; State v. Grant,'79 Mo. 122; State v. Gilmore, 141 Mo. 506.

Jackson Circuit Court . — Hon. J. H. Plover, Judge. (1) The receipt and cashing of the' check for six thousand seven hundred and twenty-eight and ten-hundredths ($6,728.10) dollars by plaintiff .was not an accord and satisfaction of the entire debt and does not preclude a recovery in this case. Freiermuth v. McKee, 86 Mo. App. 64; Reinhold v. Kerrigan, 85 Mo. A.pp. 256; School Board ex rel. v. Hull, 72 Mo. App. 403; Dalrymple v. Craig, 70 Mo.

— Ho». W. B. Teasdale, Judge. (1) The court erred in overruling the demurrer to the evidence and in refusing the peremptory instruction to find for defendant. When death or injury is caused directly or indirectly by disease, there can be no recovery on a policy containing an exception identical with the one in the policy in the case at bar.

Appeal .from, Jackson Circuit Court. — How. J. II. Slover, Judge. (1) Plaintiff’s instruction numbered 3 does not properly direct tbe jury as to time allowed to city to repair walk. Badgley v. St. Louis, 149 Mo. 122; Baustian v. Young, 152 Mo. 317. (2) Plaintiff’s instructions numbered 5 and 8 are not confined to the pleadings and are otherwise prejudicial to defendant. Jacquin v. Cable Co., 57 Mo. App. 320; Pryor v. Railroad, 85 Mo. App. 378.

— No». James Gibson, Judge. (1) The master is not liable to á third person for the negligence of a servant over whom the master has no power of control or direction when the act complained of was performed. Therefore it was error to refuse the demurrer to the evidence, and defendant's instruction number 1.

— Hon. W. B. Teasdale, Judge. (1) The 'Court erred in permitting defendant to introduce a check signed by John W. Cook, the deceased brother, for comparison with the signature of Enoch Cook. Bank v. Hoffman, 74 Mo. App. 203, 208; R. S. 1899, sec. 4679.

— Hon. John W. Henry, Judge. (1) Plaintiff’s instruction No. 1 assumes that Mrs. McLean was thrown down and injured on the walk. It submits the question whether the board gave way, but assumes that Mrs. McLean was thereby thrown down and injured. That was in issue under the pleadings.

— How. John W. Henry, Judge. (1) It has been repeatedly held that a sidewalk may he defective and yet the city not he liable for an accident caused thereby. The time when notice ought to be taken does not begin when the sidewalk became defective merely, but when it became not reasonably safe for travel on account of the defect, which caused the injury. Bonine v. City of Richmond, 75 Mo. 437; Badgely v. St. Louis, 149 Mo. 133; Robertson v. Railroad, 152 Mo. 392.

— Ho». George F. Long an, Judge. (1) The court committed error in giving peremptory instruction No. 1. (2) The vendor, in an executory contract of sale upon conditions being broken by vendee, has a right to stand on the- contract as complete. Dobbins v. Edmonds, 18 Mo. App. 307; Vinegar Co. v. Wehrs, 59 Mo. App. 494; Walker v. Nixon, 65 Mo. App. 326; Harpin v. Manny, 57 Mo. App. 59. (1) This is a suit upon a quantum meruit.

Appeal! from Barton Circuit Court. — Hon. H. G. Tvmmonds, Judge. (1) By the instruction the jury was told that it was the absolute duty of the defendant to furnish a safe place for the deceased to work in. Its duty in that behalf was simply to use reasonable care to keep its mine in a reasonably safe condition, regard being had to the necessary dangers incident to the character of the work prosecuted. Bradley v. Bailroad, 138 Mo. 293; Higgins v. Bailroad, 43 Mo.

— Hon. II. G. Timmonds, Judge. (1) The provisions of the contract of warranty in the contract of sale did not mean that the machine in controversy had to be satisfactory to the defendant; it simply meant that the same should work satisfactorily to a reasonable and fair-minded man. Metal Co. v. Best, 14 Mo. App. 502; Clark v. Rice, 9 N. W. 427.

<p>1. Real Estate Brokers: COMMISSIONS: PROCURING CAUSE: EVIDENCE. Where a real estate agent is the procuring cause of a sale of land, he is entitled to his commissions; and on the evidence it is held that plaintiff was the procuring cause of the sale.</p> <p>2. -: -: DISCLOSING NAME OF PURCHASER. It is. immaterial whether the agent discloses the name of the purchaser prior to the closing of the sale.</p> <p>O. -: -: ABANDONMENT: INSTRUCTIONS: HARM'LESS ERROR. Two instructions relating to the agent’s abandonment of the negotiations are commented upon and one held to be without . evidence to support it and properly refused, and the other faulty since it did not submit to the jury the particular facts and circumstances from which abandonment might be inferred; but since it was not given at the instance of the plaintiff .and was antagonistic to his claim and could not prejudice the defendant, it is held harmless error.</p>

— How. James Gibson, Judge. (1) The bill of interpleader in this case is not warranted either by law, or under the facts. 3 Pomeroy’s Equity, secs. 1326-1328; Shaw v. Caster, 8 Paige 339; Leddel v. Starr, 20 N. J. Eq. 274; McDonald v. Allen, 37 Wis. 108; Story’s Equity Pleading, sec. 292, 297; Wilson v. Duncan, 11 Abb. Pr. 3, 7; Sulzbacher v. Bank, 20 Jones & S. 269; Bank v. Yandes, 44 Hun 55; Mercantile Co. v. Huntingdon, 89 Hun 465; Jones v. Oil Co., 17 111. App. 111.

<p>1. Lease: MORTGAGE: RECORD. A lease epitomized, in the opinion is held a mortgage between the parties, but not such as to creditors since it was not acknowledged and recorded.</p> <p>2. Deceit: REPRESENTATION AS TO MEANING OF LEASE': RENT: PRICE OF GOODS: ACTION. A lease is held to give the landlord the right to replevin the personal property of the lessee and therefore a representation that the landlord could take such property was not false, though that he could take everything including the goods for which the lessee was owing is false, but such misrepresentation is not actionable for it could in no way affect the pecuniary interest of the lessee.</p>

Appeal-from Jasper Circuit Court. — -Ho». J. ID. Perkins, Judge. (1) The court erred in overruling defendant’s objection to plaintiff’s testifying as to amount paid Rags-dale, the nurse. Because, the petition does not allege any payment of any specific amount, and it being a special consequential damage must be alleged before it can be proven. O’Leary v. Rowan, 31 Mo. 117; Sedgwick on Measure of Damages (8 Ed.), secs. 1261, 1270.

— Son. Hugh Dabbs, Judge. (1) The employment of a physician or surgeon not being within the scope of the duties of either Allen, the president of the appellant corporation, or Bagsby, the mine foreman, they could not bind the appellant by calling in a physician and surgeon to treat employees of appellant. Brown v. Railroad, 67 Mo. 122; May-berry v. Railroad, 75 Mo. 492; Tucker v. Railroad, 54 Mo. 177; Spellman v. Miffing Co., 55 L. R. A. 640.

— Hon. W. B. Teas dale, Judge. STATEMENT BY BBOADDUS, .T. This is a suit by the 101 Live Stock Company against the Kansas City, Memphis and Birmingham Railroad Company for delay of a shipment of stock at Memphis, Tennessee, and for a failure to properly feed, water and take care of said stock on- the part of the Union Stock Yards Company at Memphis, Tennessee, into whose hands they were placed by the railroad company while waiting further orders, and to comply with the…

— How. James Gibson, Judge. (1) “When language of an-insurance policy is capable of two interpretations, that one must be adopted which is most favorable to the insured, and where there are inconsistent provisions, effect will be given to the one most favorable to the insured. ’ ’ Brown v. Assurance Co., 45 Mo. 221; Hoffman v. Accident Indemnity Co., 56 Mo. App. 301; Burnett v. Ins. Co., 103 Mo. 595; Hale v. Marine Ins. Co., 46 Mo. App. 508; Ethington v. Ins. Co., 55 Mo.

Louis City Circuit Court. — Ho». D. B. Fisher, Judge. (1) Notice of cancellation to agents or brokers of the insured, such as the evidence shows Roeslein & Robyn to have been in this case, is sufficient notice. 16 Am. and Eng. Ency. Law (2 Ed.), p. 974; Standard Oil Co. v. Ins. Co., 64 N. Y. 85.

— How. Nat. M. Shelton, Judge. STATEMENT. Held: used and enjoyed by him with the interest and income thereof until his death as aforesaid in the month of March, 1900. “Plaintiffs further state that upon the death of the said T. W. P. Reed, as aforesaid, the defendant, J'ohn R. Morgan, applied for letters of administration upon his estate, and he, the said John R. Morgan, was…

Louis City Circuit Court. — Row. R. D. Wood, Judge. (1) Petition may be amended in the justice court to supply a jurisdictional fact. Burden v. Hornsby, 50 Mo. 238.. (2) Amendment supplying jurisdictional facts, or curing jurisdictional defects, can be made in tbe circuit court so as to bring tbe case within the jurisdiction of the justice, before whom suit was originally, brought. R. S. 1899, see. 4079; Vaughn v. Railroad, 17 Mo.