Volume 101 — Missouri Appeal Reports

Louis City Circuit Court. — No». Wm. Zachritz, Judge. (1) In a tax suit it is the duty of a title examiner to examine everything in the case that sliows what was done from the very incipiency of the case to the end thereof.

Louis City Circuit Court. — flow. H. D. Wood, Judge. (1) Section Z46, Revised Statutes 1899, requires an affidavit denying the existence of partnership to he filed in order to make it an issue, and this applies to justices’ courts. The ’Weed Sewing Machine Co. v. Philhrick, 70 Mo. 646; Mitchell & Bro. v. Railton, 45 Mo. App. 273. (2) The case of Hayler v. Dawson, 28 Mo. App. 531, is on all fours with this case.

Louis County Circuit Court. — How. J. W. McElhinney, Judge. STATEMENT. The case is here on a second appeal. In the statement of facts on the first appeal (see 89 Mo. App. 270 et seq.) the pleadings, the portions of the contract upon which the pleadings are predicated, the history of the doings and transactions of all the parties in interest in respect to the sawmill and logs, are fully set forth.

Louis City Circuit Court.— Hon. W. B. Douglas, Judge. STATEMENT. In February, 1897, plaintiff was the owner of improved property — lot 40, block 1860 — in the city of St. Louis, upon which he had given a mortgage to the St. Louis Trust Company to secure a note of six thousand dollars made to said .company. He had defaulted in the payment of interest due on the note on aeccount of which default the trust company was about to foreclose the mortgage.

Louis City Circuit Court. — Now. E. D. Wood, Judge. The court erred in refusing to give defendant’s second instruction. No notice to Edwards, plaintiff, of the cancellation of the policy was necessary.' Gillett v. Ins. Co., 73 Wis. 203; Antes v. Ins. Co., 84 N. W.-412; Hocking v. Ins. Go., 42 S. W. 451; Holbrook v. Ins. Co., 49 Pac. 555; Bank v. Ins. Co., 49 Pac. 688; Richmond v. Ins. Co., 33 Ark. 786; Ins. Co. v. Wolff, 54 N. E. 722.

— iío». E. M. Hughes, Judge. (1) The demurrer to the evidence should have been sustained. Wait v. Railroad, 165 Mo. 612; Erwin v. Railroad, 68 S. W. 88. (2) The defendant was entitled to a verdict in its favor at the close of all the testimony. See authorities cited under point 1, supra.. (3) The court gave erroneous instructions at the request of plaintiff, and of its own motion. Goetz v. Railroad, 50 Mo. 472; McMahon v. Ex. Co., 132 Mo. 649; Linn v. Bridge Co., 78 Mo.

— Ron. Frank B. Dearing, Judge. (1) The fact that the plaintiff for twelve years ha.d driven over this track three times a week, and knew that this particular car always passed the point of collision about that hour, rendered the duty to look and listen imperative upon her for her own protection. Hol-werson v. Railroad, 157 Mo. 225; Kirtley v. Railroad, 65 Fed. 391; Railroad v. Moseley, 57 Fed. 921; Sinclair v. Railroad, 133 Mo. 233.

— Hon. David H. Eby, Judge. STATEMENT. Plaintiff, a corporation and common carrier, for its cause of action, omitting’ formal allegations, stated the following: “Plaintiff states further that on April 19, 1899, the defendant delivered to its agent at Bowling Breen, Missouri, a certain jack to he transported by said plaintiff over certain railroad lines from Bowling Green, Missouri, to Wells, Texas, the same being consigned to J. L. Bailey, at the latter place.

Charles Circuit Court.— Hon. Elliott M. Hughes, Judge. STATEMENT. One of the defendant’s street cars ran against the ..plaintiff, May 13,1901, at the intersection of Fourteenth street and St. Lonis avenne in the city of St. Louis and injured her severely.

— Hon. II. C. Pepper, Judge. STATEMENT. The appellant insurance company is a corporation organized under the laws of the State of Iowa, and does an assessment insurance business in this State. On October 27,1894, it issued a certificate of insurance for $2,000 on the iife of G-eorge A. Purdy, of Pierce City, Missouri, payable to his daughter, Louisa Purdy.

Pike Circuit Court. — Hem. David E. Eby, Judge. (1) That the final settlements of executors have the force and effect of final judgments, and are entitled to the same immunities, is no longer questioned in this State. This view is sustained by an unbroken line of authorities in this State. State ex rel. v. Roland, 23 Mq. 95; Carton v. Botte, 73 Mo. 274; Van Bibber v. Julian, 81 Mo. 618; Patterson v. Booth, 103 Mo. 402.

— Hon. Geo. W. Thornberry, Judge. That the district received and used appellant’s lumber in erecting its schoolhouse is not denied; and that the house belongs to the school district and is being used by it for school purposes. Under this state of facts the question is, can the district avoid liability on the ground that the lumber was obtained without a strict compliance with the letter of the statute in making such contracts?

— Hon. Henry C. Pepper, Judge. (1) Respondent, as a ground of demurrer, claims immunity from liability for Ms acts complained of in the petition, for the reason that they were acts entrusted to his “judgment and discretion” as county clerk in the administration thereof. State ex rel. v. Lafayette County Court, 41 Mo. 221.

Louis City Circuit Court.— Eon. Wm. Zachritz, Judge. (1) The law of this State is, that the application of the principle of agency is the same whether the principal is a corporation or an individual, and that if an officer of a corporation is allowed to deal with a third person, the company is hound, even though the agent exceeds his authority. Madden v. Realty, 75 Mo. App. 358; Sparks v. Dispatch Co., 104 Mo. 531; Moore v. Causs, 113 Mo. 98.

— Ho». W. A, Evans, Judge. ; (1) Onr first contention is that'the conrt erred in not striking out plaintiff’s amended statement, for the reason that the last count was a new cause of action and different from the one tried in the justice court, which is not tolerated by our statute or the courts. R. S. 1899, sec. 4077; Boughton v.* Railway, 25 Mo. App. 10‘.

Louis County Circuit Court. — Hon. J. W. McElhinney, Judge. (1) The measure of damages is the difference in value of the property immediately before the alleged injury and immediately afterwards. St. Louis T. Co. v. Bambrick, 149 Mo. 569; Rives v. Columbia, 80 Mo. App. 173; Morton v. Railroad, 47 Mo. App. 452. (2) Again, plaintiff failed to prove that the construction of the railroad was wrongful. A wrongful áct can not he presumed. It must be proved.

— Ron. L. B. Wood-side, Judge. Again we say tire Coates-Cady contract was made with direct reference to the primary contract with the exposition company, and so far as its terms regulated what was to he done by Coates on the exposition grounds in the exercise of the concession granted by it, it was as much a part of the Coates-Cady contract as though it had .been written into it. Calloway v. Henderson, 130 Mo. 77; Carr v. Lucldand, 112 Mo. 462.

Louis County Circuit Court. — How. J. W. McElMnney, Judge. (1) It must be shown either that the city had actual notice of the defect, or that it was so obvious or had existed for such a length of time as to indicate that th’e city would have known it if it had used proper care in observing the condition of its street.

E. M. Hughes, Judge. (1) The first instruction is erroneous because it allows the jury to find as a fact that Mr. Pace “had authority to make contracts of insurance” [meaning oral contracts such as the instruction submits]. There was no evidence of such authority. On the contrary, the written commission of Mr. Pace (insisted on by plaintiff to prove Mr. Pace’s powers as agent) fails to confer such authority. Embree v. Ins. Co., 62 Mo. App. 132; Trask v. Ins. Co., 53 Mo.

<p>1. Divorce: GROUND FOR, INDIGNITIES: EVIDENCE. Evidence of certain Statements or admissions made by plaintiff’s wife to him in the presence of his mother, were admissible.</p> <p>2. -: HUSBAND AND WIFE: COMMUNICATIONS, WHEN ADMISSIBLE. Declarations of husband or wife in the presence of a third party participating in the interview, eliminates the confidential nature of the communications, and renders them admissible in evidence.</p>

Louis City Circuit Court. — How. S. P. Spencer, Judge. On the disputed points, the testimony is overwhelmingly in favor of the defendant. One witness for plaintiff himself says that no bell was rung. Six witnesses of the defendant say that the bell was repeatedly rung while the ear was approaching Fourteenth street. This point was immaterial, however, because plaintiff states that he twice saw the car before he reached the track.

<p>1. Election, Contested: APPELLATE PRACTICE. An .appellate court in a contested election case will adopt the findings of the trier, as in a law ease.</p> <p>2. -: PUBLIC OEEICERS, ELECTION OE: INITIALS OF JUDGES ACROSS BALLOTS. Revised Statutes 1899, section 7104, requiring two judges of election having charge of the ballots to write their initials on the back of the ballots, was not intended to control in the election of a city officer, but applies only to the election of a public officer.</p> <p>3. —-: -: STATUTES CONSTRUED. A general affirmative statute does 'not repeal a prior and special one, unless words negativing the continuance of the prior act are used, or the two acts are repugnant to each other, or are wholly, irreconcilable, or the legislative intent to repeal the prior act is clearly manifest.</p> <p>4. -: -: CONSTRUCTION OF STATUTES: REPUG-NANCY THEREOF. Revised Statutes 1899, section 6995, article 1, chapter 102, entitled “Elections,” provides that, whenever a registration is required by law, in addition to the current number, the registration number of the voter shall be indorsed on his ballot, and that no ballot not so numbered shall be counted. Revised Statutes 1899, section 7104, directs that the two judges of the election having charge of the ballots shall write their names or initials upon the backs of the ballots. Revised Statutes 1889, section 4785, providing that “no judge of election shall deposit any ballot on which the names or initials of two of the judges as hereinbefore provided for does not appear,” was amended by Acts; 1891, section 11, so as to read: “Every ballot shall be numbered in the order in which it shall be received. No judge of election shall deposit any ballot, on which the names or initials of the judges, as hereinbefore provided for, do not appear.” Acts 1891, section 13, provides that “all acts or parts of acts inconsistent with this act are hereby repealed.” Section 7210, Revised Statutes 1899, provides that all elections in a city of 25,000 and under 100,000 inhabitants shall be subject to all the provisions of the chapter entitled “Elections.” Held, that the two acts (sec. 6995, R. S. 1899, and sec. 4785, R. S. 1889, as amended) were not inconsistent or repugnant to each other, and that the Act of 1891 manifested no intent on tlie part of the Legislature to repeal or modify the mandatory words of section 6995, when applied to city elections.</p> <p>5. -: -: BALLOTS, SECRECY OF: IN COURT. The ballots in a contested election case, can under no circumstances be produced in open court, and be made a record of.</p>

Louis County Circuit Court. — Eon. J. W. Mc'Elhinney, Judge. STATEMENT. On the part of the plaintiff the evidence tends to prove that on October 29,1900, plaintiff in company with two friends, boarded one of defendant’s cars on the Olive street road, in St. Louis county, intending to go to the Kinloch racetrack. The car proceeded north until it reached a point where the street railway tracks crossed the tracks of the Wabash railroad.

<p>Dramshop: LICENSE, VOID. This ease involves same material questions as decided in case of State ex rel. v. Bennett et al., 102 Mo. App. 247.</p>

<p>Appeal from Slielby Circuit Court. — -How. Nat. M: Shelton,- Judge.</p> <p>(1) “Every substantive fact which, the pleader must prove to maintain his action -should, under the practice act, be alleged so that the issue can be made thereon. ’ ’ Harrison v. Railway, 50 Mo. App. 336. The words of the Supreme Court in Link v. Vaughn, 17 Mo. 586, are very applicable here. It says: “The code requires the petition to contain a statement of the facts constituting the cause of action, in ordinary and concise language, without a repetition, and in such manner as to enable a person of common understanding to know what is intended.” Clements v. Yates, 69 Mo. 623; Huston v. Tyler, 140 Mo. 264; Cole v. Armour, 154 Mo. 350. (2) “It is no objection that the petition sets out the contract and a compliance with its terms, and the termination of the contract by the defendant, provided it shows that the plaintiff elected to treat it as cancelled and seek to recover for services rendered.” Glover v. Henderson, 120 Mo. 375.</p> <p>(1) If the defendant had delivered the carload of horses at East St. Louis within a reasonable time and in a reasonably sound condition, then under the terms of the contract the plaintiff would have been bound to accept them and he would have had no valid claim or demand against the defendant. (2) The issues of fact submitted to the jury were found in favor of the plaintiff, and there was abundance of evidence to support the finding of the jury, and there was abundance of evi- • dence to justify the instructions submitted to the jury on behalf of the plaintiff. George v. Railroad, 57 Mo. App. 358; Sloop v. Railroad, 67 S. W. 956.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. O’Neill Ryan, Judge.</p> <p>(1) Under the uncontradicted evidence in the case the plaintiff was not a bona fide holder for value and before maturity of the note sued on, so as to preclude the defense of a want of consideration. (2) The note sued on was transferred, i. e., both indorsed and delivered, to the plaintiff, after the maturity of the note, and the plaintiff therefore holds it subject to all defenses that could have been set up as against the trans-ferrer. Kellogg v. Schnaake, 56 Mo. 136; Lee v. Turner, 15 Mo. App. 205; Julian v. Calkins, 85 Mo. 202; Turner v. Hoyle, 95 Mo. 337. (3) The uncontradicted evidence establishes the defense that there was no consideration for the original note of which the note sued on was a renewal note, and the original note having been given without any consideration, the renewal note was without consideration. Comings v. Leedy, 114 Mo. 454; Twile v. Sargent, 63 Minn. 218; Bank v. Barmann, 124 Iff. 200; Tiedeman on Com. Paper, sec. 180; 1 Daniel on Neg. Inst. (3 Ed.), secs. 179, 205, 206.</p> <p>(1) A failure or want of consideration may be shown under the Missouri law (R. S. 1899, sec. 645). "Where such defects of consideration appears, it of course destroys the obligation or promise, to pay which the note contains. But testimony of a want of consideration is quite different in legal effect from proof which undertakes to defeat such an instrument by some agreement in conflict with its other terms. The latter testimony is not competent of itself, nor is evidence to show a condition (in the nature of a defeasance) not expressed in the instrument admissible to defeat its purpose. Jones v. Jeffries, 17 Mo. 577; Smith’s Adm’s. v. Thomas, 29 Mo. 307; Massmann v. Holscher, 49 Mo. 87; Rodney v. "Wilson, 67 Mo. 123; 29 Amer. Rep. 499. (2) The plaintiff in this case is the indorsee or assignee of a negotiable promissory note, perhaps before maturity, and certainly for full value without knowledge of any condition. (3) We cite the following cases to the general proposition that the judgment in this case is for the right party and should be affirmed: Bank v. Graham, 74 Mo. App. 251; Jennings v. Todd, 118 Mo. 296; Bank v. Pikin, 66 Mo. App. 592; Hurt v. Ford, 142 Mo. 283; Barnes v. McMullens, 78 Mo. 260.</p>

Louis City Circuit Court. — How. H. D. Wood, Judge. The court erred in rendering judgment for the defendant, instead of for the plaintiff. Johnson Brink-mau Co. v. Bank, 116 Mo. 558; Hall v. Railroad, 50 Mo. App. 179; Weil v. Posten, 77 Mo. 284; Toothaker v. Allen, 41 Me. 324; Haley v. Railroad, 80 Mo. 112; Railroad v. Crane, 102 Ill. 249; 3 Am. and Eng. Ency. of Law, p. 1104.

<p>Appeal from St. Louis City Circuit Court.— Eon. H. D. Wood, Judge.</p> <p>STATEMENT.</p> <p>Defendant is a beneficial life insurance association, incorporated under the laws of Missouri. Its membership is confined to members of the police force of the city of St. Louis. The contract of insurance with each member is for $2,000, and its contracts 'are formed by the constitution of the association. No policy or certificate of insurance is issued, but the insurance is carried on the books of the association with the names of the beneficiaries of the insured. •</p> <p>Edward Courtney joined the defendant association in April, 1900, and designated the plaintiff as his beneficiary. He died July 25,1901. The suit is to recover $2,000 insurance on his life.</p> <p>The answer set up the following special defenses:</p> <p>“Defendant states that by section 2 of article 1 of the constitution of the defendant association, individual membership in the association terminated whenever a member refused for three calendar months to pay any assessments.</p> <p>“And defendant states that by the provisions of section 2 of article 6 of said constitution, each member of the association was required to pay, each pay day of the police force, a regular assessment of one dollar, and. that under section 3 of article 6, each member was required to pay an additional assessment of two dollars at the death of any member of the association upon notice by the executive committee of such death and such assessment.</p> <p>“And defendant states that said Edward J. Courtney, deceased, mentioned in plaintiff’s petition, had not paid any assessments, either regular or special, mentioned in sections 2 and 3 of article 6 of the constitution, for the months of January, February, ■ March, April, May, June and July, 1901, although regular assessments were due each month on the pay day of the police force for that month, and although special assessments had been called and notice thereof given to the said Edward J. Courtney as follows: Assessment No. 5, called January 9, 1901, due and payable January 31, 1901; assessment No. 6, called February 4, payable February 28, 1901; assessment No. 7, called March 4, payable March 30,1901; assessment No. 8, called April 8, payable April 30, 1901; assessments Nos. 9 and 10, called May 6, due May 31, 1901; assessments Nos. 11 and 12, called June 10, 1901, payable June 30, 1901 — each for the amount of two dollars. And defendant states that said Edward J. Courtney thereby forfeited all of his rights as a member of the association, and was not a member thereof, in good standing, at the time of his death, and his beneficiary is not entitled to the death benefit of $2,000, sued for.</p> <p>The reply is as follows:</p> <p>‘‘Comes now the plaintiff in the above entitled cause and for reply, says that she denies each and every , allegation therein.</p> <p>“And further replying, said plaintiff says that by their course of dealing they waived their right to demand payment on a day fixed and certain. ‘Wherefore plaintiff prays judgment as in their petition.”</p> <p>The initiation fee to be paid to the association is ten dollars. The monthly assessment is one dollar per month, to be paid without notice. On the death of a member an assessment of two dollars is made, payable on the last day-of the month in which the assessment is made. Of these assessments each member is entitled to notice. Notices are sent to each station in the several police districts in the city and are there, on roll call, read to the policemen assigned to duty in the district. Special assessments were called as follows: No. 6, February 20, 1901; No. 7, March 23, 1901; No. 8, April 29, 1901; Nos. 9 and 10, May 13, 1901; Nos. 11 and 12, June 10, 1901.</p> <p>Notice of these assessments was given in the usual and customary way. None of them was paid by Edward Courtney nor did lie pay any of the monthly dues after January, 1901. In April, 1901, he paid three dollars, which was.credited as follows: One dollar for monthly dues, due for January, 1901, and two dollars to pay special assessment No. 5.</p> <p>In each police district the association designated a particular officer as its collecting ágent, who collected the dues and special assessments from the members and paid them over to the association. Michael Donohue was the collecting agent of the Fifth district from August, 1900, to July 31, 1901. Courtney during this time was on duty in this district. Donohue testified that in May and June he notified Courtney that his general and special assessments after January, 1901, were due and in arrears, but that they were never paid. In April, 1901, Courtney was paid $126 sick benefits, which he repaid to the association in June, 1901, having been allowed pay by the city during his sickness; he was required under section .1, article 8, of the constitution to return the benefit when so paid.</p> <p>Defendant read in evidence the following provisions of the constitution of the association:</p> <p>‘1 Section 4. —Death. Whenever any member of the police force, who is a member of this association, shall die, the sum of $2,000 shall be paid within thirty days after his demise to such person or persons as he may have designated on the books of the association. If he shall have failed to designate it will be paid to his heirs at law in accordance with the law of descent and distribution. If he shall have failed to designate, and he has no heirs at law, it shall revert to the association.</p> <p>“Article 11. Any member suspended for non-payment of dues or assessments can be reinstated to membership by the payment of all dues and assessments within six months from the date of his suspension; but after that time he shall have to pass a medical examination and pay the initiation fee the same as an applicant for original membership.”</p> <p>It was shown by a number of officers of the association that the association was in the habit of receiving dues from its members at any time they were offered for payment, regardless of the number of months the member making payment was in arrears and that money for past dues was received from the members whenever offered.</p> <p>The issues were submitted to the court without the intervention of a jury. The court of its own motion declared the law as follows:</p> <p>“1. The court declares that by virtue of section 2, article 1, of the constitution, which provides as follows: 'Individual membership shall terminate whenever (1) the individual shall cease to be a member of the police force of the city of St. Louis; (2) the individual shall refuse for three calendar months to pay an assessment, except as provided in article 11 hereof. ’ And by virtue of article 11 of the constitution, which provides, 'any member suspended for non-payment of dues or assessments can be reinstated to membership by the payment of all dues and assessments within six months from'the date of his suspension; but after that time, he shall have to pass a medical examination, and pay the initiation fee the same as an applicant for original membership. ’ The membership of a person belonging to the defendant association could not be terminated or suspended by reason of non-payment of dues, except after due notice to the delinquent member, and affirmative action on the part of the association, declaring the member suspended or his membership forfeited, and if the court sitting as a jury believes from the evidence that no such action was had by the association, and that no notice of such suspension or ousting from membership' was given, but on the contrary, that the defendant association treated the said Edward J. Courtney as a member of the association, by receiving dues more than three months past due, paying him sick benefits, and calling upon him for assessments long after such defaults had occurred under said constitution and by-laws, then the plaintiff is entitled to recover.</p> <p>“2. If the court, sitting as a jury, believes from the evidence that it was the custom of the defendant association, not only in its dealings with the said Edward J. Courtney, but also with all other members of the association to receive payment of dues and assessments at any time when tendered by a delinquent member, no matter how long such dues or assessments may, under the constitution and by-laws have been due and payable, then the defendant association has waived the right to claim that the membership of said Edward J. Courtney, at the time of his death in July, 1901, was suspended or forfeited. No matter what may have been the terms of said constitution and by-laws relative to the suspension or removal of members, if the court finds from the evidence that no action has ever been taken by said defendant association looking to the suspension or removal of said Edward J. Courtney, and no notice of such suspension or removal was ever given to him, then the plaintiff is entitled to recover. ’ ’</p> <p>The defendant offered instructions, the substance of which were that section 2 of article 6 was self-executing, and that if the court found from the evidence that Courtney was more than three months in arrears for monthly dues and special assessments, the issues should be found for the defendant. These intructions the court refused to give and found the issues for the plaintiff, and rendered judgment in her favor for $2,027. A timely but ineffectual motion for new trial was filed. Defendant appealed.</p> <p>(1) There was no evidence in the record to show that any officer of the association or member of the executive committee received monthly or special assessments more than six months after suspension, that is to say, more than nine months after they were in arrears. Theré were some loose statements to the effect that monthly and special assessments werereceivedwhen offered. We endeavored to show that when the constitution was properly construed there was no evidence of a waiver. (2) The delinquent would have a right to demand acceptance of hack ¿ssessments and reinstatement if made within six months from date of termination of membership, as it is termed in section 2 of article 1, or suspension, as it is termed in article 11. Receipt of such assessments, unless made six months' after suspension, would therefore not constitute a waiver; it would he merely fulfilling the terms of the constitution. We particularly call the court’s attention to the fact that there is no evidence that any death bénefit was ever paid to a member’s family where he was more than three months in arrears. If that had been shown, it would have constituted a waiver, hut the receipt of assessments was not a waiver; it was merely a compliance with article 11 of the constitution. In Equitable Ins. Co. v. Mc-Lermon, 6 Ins. L. J. 124, the clause of the policy regarding forfeiture, reads as follows: “In case the said premiums shall not he paid on the several days hereinbefore mentioned for the payment thereof, then, and in any such case, the said society shall not he liable for the payment of the sum insured, or any part thereof, and this policy shall cease and determine.” Benevolent Society v. Baldwin, 86 Ill. 479; Lyon v. Supreme Assembly, 26 N. E. 236; Harvey v. Grand Lodge, 50 Mo. App. 472.</p> <p>(1) The law of this case could not he more tersely put than in the language of the trial court in his instruction, in which he says: ‘ ‘ The membership of a person belonging to the defendant association could not he terminated or suspended by reason of non-payment of dues except after due notice to the delinquent member, and affirmative action on the part of the association declaring the member suspended, or his membership forfeited, and if the court sitting as a jury believes from the evidence that no such action was had by the association, and that no notice of such suspension or ousting from membership was given, but on the contrary, that the defendant association treated the said Edward J. Courtney as a member of the association by receiving dues more than three months past due, paying him sick benefits, and calling upon him for assessments long after such default had occurred under said constitution and by-laws, then the plaintiff is entitled to recover.” Pulir v. Grand Lodge, 77 Mo. App. 47; McMahon v. Knights of Maccabees, 151 Mo. 522. (2) Where a waiver is shown a recovery is not barred by reason of the fact that no tender of the premium was made after the death of the insured. TIarvey v. Grand Lodge, 50 Mo. App. 472. Where the policy of insurance requires prompt payment of premiums, or the policy will be forfeited, such condition may be waived by the habit of the insurer in receiving the premium after it is due. Hanley v. Life Assn, of America, 69 Mo. 380. (3) If a life insurance company, by its course of dealing with a policy-holder, leads him to believe that the strict terms of the policy touching the prompt payment of premiums, will not be insisted on, and he dies without having paid the premium, and before any forfeiture or commutation has been declared, the company can not after-wards treat the policy as forfeited or commuted. Thompson v. St. L. M. L. I. Co., 52 Mo. App. 469. (4) Though a contract of insurance requires prompt payment of the premium or the policy will be forfeited, yet the insurers may waive this condition by a habit of receiving the premium after it is due. James v. Mut. Reserve Fund L. Assn., 148 Mo. 1. The prompt payment of the premiums due on a life insurance policy may be waived or suspended by the company or its agent in express terms by its course of dealing with the insured.</p>

— How. Elliott M. Hughes, Judge. (1) Under the present practice in this State an account hook of original entries, fair on its face, and shown to have been kept in the usual course of business, by the party himself or his clerk, is admissible even in the party’s own favor. Anchor Milling Co. v. Walsh, 108 Mo. 277; Robinson v. Smith, 111 Mo. 205; Seligman v. Rogers, 113 Mo. 642.

Lonis City Circuit Court. — Ho#. D. D. Fisher, Judge. (1) This court has full power to review the evidence and make out decree as it may deem proper. Deschadt v. Deschadt, 59 Mo. App. 102; Morris v. Morris, 60 Mo. App. 86; Kilpatrick v. Kilpatrick, 80 Mo. App. 70; Ulrey v. Ulrey, 80 Mo. App. 48.

— Hon. E. M. Hughes, Judge. STATEMENT. In September, 1898, plaintiff’s minor son, Arthur Barrett, died in the State of New York and his… Held: and also for a judgment against the defendant for said sum of $626.40 collected by defendant in the State of Tennessee aforesaid, with six per cent interest from the date of the filing of this petition, and for such other orders, judgments and decrees as may to the court appear just and proper.” Defendant made answer to the second…

— Hon. E. M. Hughes, Judge. STATEMENT. Omitting caption the petition is as follows: “Plaintiff states that the defendant is a corporation organized under the laws of'the State of Missouri and had been snob corporation since tbe ninth day of June, 1890. “That said corporation has power to provide an indemnity fund and aid and assist its members who may be maimed, crippled or disabled by accidents; and it has a large membership bolding policies providing for indemnity against…

Louis County Circuit Court.— Hon. J. H. McE'lhimiey, Judge. (1) It will be observed at a glance at the petition that, although plaintiff in a way does ask for a lien, the idea conveyed and prevalent throughout the whole of plaintiff’s pleading is a personal judgment against the defendant.

Louis County Circuit Court . — Eon. Jno. W. McElhinney, Judge. STATEMENT. On September 9, 1892, plaintiffs recovered a judgment in a justice’s court, in the city of St. Louis, against defendant Charles March for $296.80, a transcript of which was filed in the office of the clerk of the' circuit court of the city of St. Louis.

<p>'Ordinance, City: LICENSE TAX: VOID, BECAUSE OPPRESSIVE. A city ordinance imposing a license tax of $50 per day on tbe business of conducting “a transient, or traveling, clothing, dry goods, jewelry or other kind of store,” and defining such stores as stores commonly designated as fire-sale or bankrupt-sale stores, etc., operates unreasonably and oppressively, and is void.</p>

— Eon. E. C. Pepper, Judge. (1) The case is entitled “Frank Key, to the use ■of Warren Heaton, plaintiff,” hut the petition proceeds in the name of the plaintiff alone and no further statement or reason is given-why he sues to the use of another except as one draws his own inference from the facts s'tated as to his being interested only as mortgagee, and that interest he had parted with to Heaton.

— How. Henry G. Riley, Judge. (1) Under the law no appeal from a judgment rendered in the court of a justice of the peace can be taken with out an affidavit and recognizance for appeal, and unless the bond is filed either before the justice of the peace or in the circuit court, pending a motion to dismiss for want of such recognizance, the circuit court nor this court acquires no jurisdiction. R. S. 1899, secs. 4060', 4072; Devore w. StaecHer, 49' Mo.

— How. Frank R. Bearing, Judge. The court erred in granting plaintiff’s third instruction. This instruction is drawn upon the theory that if Geo. J. Cole, through his agent, Morris, employed; the plaintiff, he necessarily employed him for the Iron-dale Lead Company. It was for the jury to determiner upon all the facts in evidence whether Cole employed the plaintiff for himself individually or for the Irondale Lead Company.

— Hon. I). H. Eby, Judge. (1) The plaintiff was not entitled to a decree of divorce because the evidence did not show that she was the innocent and injured party. There was an abundance of evidence showing that her association, at various times and places, with one Neil Williams, was such as to at least give her a questionable reputation in the community in which she lived, and to create much unfavorable comment on her conduct.

‘Louis City Circuit Court. — How. D. D. Fisher, Judge. STATEMENT. The petition of the plaintiff states a cause for equitable relief from certain encroachments on a private alley which the plaintiff owns in common with defendant, the Kennett Estate, and for the abatement of nuisances maintained by the defendants.

— Hon. J. T. Neville, Judge. (1) On the facts admitted by the demurrer, defendant obtained the note of plaintiff for $1,050, when only $400 was advanced. That this excess was not a gift or bonus for the, use of the $400, stands admitted. That the excess has no consideration to support it, stands admitted. So if defendant Sims were suing to recover judgment on said note, the facts stated would be a good defense at law.

Circuit Court . — Hon. E. M. Hughes, Judge. STATEMENT. The contested cause of action in plaintiff’s petition upon which a trial before a jury resulted in a verdict for respondent, abridged, was as follows: That it was the duty of the defendant, as a common carrier of live stock, to provide and maintain safe and suitable pens at shipping points along its railway, in which to receive and safely keep live stock tendered for shipment; that on June 9, 1902, plaintiff arranged…

Louis City Circuit Court. — Now. Win. Zachrits, Judge. STATEMENT. Respondent was engaged under tlie name of the American Rattan Works in the business of manufacturing children’s carts and baby carriages in the city of St. Louis. The appellant, a corporation in the State of New Jersey, manufactured rubber goods, including material for tires for such vehicles.

Louis City Circuit Court. — How. Wm. Zachrits, Judge. (1) The charge that the assured made false statements in his application for the policy in dispute is not sustained, and, even if it were,, it is still incontestable that, unless the matter represented shall have actually contributed to the contingency on which the policy is to become due, it is not deemed material. Sec. 7890, R. S. 1899.

— How-. E. C. Pepper, Judge. (1) “As the defendant never returned to his wife after the first charge was preferred, he can not be held to have again deserted her. Nor did his refusal to live with her or to furnish her the means to live on, constitute another crime. The essential act of abandonment was lacking.

Louis City Circuit Court . — Hon. E. E. Wood, Judge. STATEMENT. Held: also, that there was no proof that it occurred from negligence, thns forcing the plaintiff to a nonsnit and to this appeal.

<p>Appeal from Montgomery Circuit Court. — How. Elliott M. Hughes, Judge.</p> <p>(1) The court gave erroneous instructions at the plaintiff’s request. Ely v. Eailroad, 77 Mo. 34; Ault-man & Co. v. Smith, 52 Mo. App. 351; Jacqnin v. Cable Co., 57 Mo. App. 320; Jennings v. Zerr, 48 Mo. App. 528; Wilkerson v. Eilers, 114 Mo. 245. (2) The conrt gave erroneous instructions of its own motion. Breen v. Cooperage Co., 50 Mo. App. 215; Epperson v. Tel. Co., 155 Mo. 382; Bowen v. Railroad, 95 Mo. 268; Yar-nell v. Railroad, 113 Mo. 580. (3) The instructions asked by defendant should have been given. Douglass v. Stephens, 18 Mo. 362; St. Louis v. Brown, 155 Mo. 564. (4) The alleged anatomical lecture permitted by the trial court, over defendant’s objection, in plaintiff’s behalf, was a prejudicial abuse of judicial discretion.</p> <p>(1) The authorities referred to by appellant do not in the least support his contentions in this case. In the case of Ely v. Railroad, 77 Mo. 34, the petition stated that the roadbed had been undermined and made dangerous by a flood, and the error consisted in allowing the plaintiff to recover because the ties and material used in construction were bad. In Aultman Co. v. Smith, 52 Mo. App. 351, the court said the instruction was bad, because it allowed the defendant a verdict because the plaintiff had converted a mortgage, when no such defense had been made. In the case at bar these decisions are attempted to be applied because the word “racing” was used as tantamount to “rushing,” as used in the petition. (2) The proximate negligence charged in Rice’s petition is the collision,' and the juggling with words as to how the collision was brought about does not deserve serious comment. In Jacquin v. Cable Co., 57 Mo. App. 320, the court says only that the issues should not be widened out so as to allow a recovery on a negligent act not set up in the petition. The pleading must be the basis. Wilkerson v. Ellers, 1.14 Mo. 245; Breen v. Cooperage Co., 50 Mo. App. 202; St. Louis, etc., v. Brown, 155 Mo. 564.</p>

— Hon. Henry C. Riley, Judge. (1) Appellant’s demurrer to the evidence should have been sustained. According to respondent’s own testimony, appellant was guilty of no negligence whatever;, while respondent, fully aware of the danger, drove recklessly into it. Whittaker’s Smith on Negligence, page 391, et seq. (2) Should it be insisted that appellant was guilty of negligence, certainly respondent was equally or more so, and in such cases there can be no recovery.

— Hon. James L. Fort, Judge. ' (1) Hence, if we admit for the sake of the argument that the warrant issued by order of the county court… Held: that the condition was performed when the officer discharged his duty honestly and diligently with such skill as he actually possessed. ’ ’ (4) The record in this case shows that there was but one bond given in this case, and it also shows that said bond was given for the faithful performance of the duties of the treasurer as such;…

— Hon. E. M. Hughes, Judge. STATEMENT. The suit is on the following promissory note: “$800. Mexico, Mo., December 24,1900. “On December 25, 1901, I promise to pay to William P. Atkinson, eight hundred dollars, for value received, with interest thereon at the rate, of eight per cent per annum from maturity, and if the interest is not paid annually to become as principal and hear the same rate of interest.

— How. H. G. Pepper, Judge. (1) The petition declares both upon the covenant of seizin and that of general warranty, and the breach alleged shows a violation of both covenants. Allen v. Kennedy, 91 Mo. 324. (2) Under the practice in this State now, a covenant of seizin, as well as a covenant of warranty, runs with the land; is transmissible, without words of special assignment and enures to the benefit of a subsequent grantee of the premises warranted.

— How. Frank R. Rearing, Judge. (1) The court acquired no jurisdiction over the parties by mere notice from one to the other, and the ruling of the probate court on that question was correct, and the ruling of the circuit court error. Smith v. Hawger, 150 Mo. 445. And it is immaterial whether the question was raised in the lower court. State ex rel. v. Bland, 144 Mo. 559; Lilly v. Mente, 126 Mo. 212.

<p>1. Telegram, Changed in Transmission Before Delivery: MISTAKE, NO CAUSE OE LOSS: DAMAGES. A third party owed plaintiff a large sum of money secured by a chattel mortgage on 1,500 head of cattle. The mortgage provided that as the cattle were sold, the proceeds should be applied on the indebtedness, which had been regularly done up to this last shipment which went to New Orleans in violation of the terms of the mortgage, and was there on May 10 sold to a commission firm, and the sale proceeds retained by such party. On May 12, plaintiff learning of the sale, sent the following telegram to the party: “National Stock Yards, Ill., May 12, 1899. John Lutz, Meridian, Miss.: You must not ship any more cattle covered by our mortgage to any but this market. Please instruct New Orleans commission firm to pay net irroceeds to us of three cars that are there. Answer. Strahorn-Hutton-Evans Com. Co.” As the message was delivered to Lutz at Meridian, the word “no” was substituted for “net,” so that the sense of the dispatch was that the New Orleans firm should pay “no proceeds” instead of the “net proceeds” to the plaintiff. Lutz held the money and appropriated it to his own use and excused himself for doing so on the strength of the telegram: Meld, that the mistake in the telegram had nothing to do with the payment by the commission firm, to Lutz, for he knew from the mortgage and previous course of business, that the money belonged to plaintiff, notwithstanding the erroneous telegram as delivered to him.</p> <p>2. -: CONTRACT OE SENDING MESSAGE: EEEECT OE. A party to a contract is responsible for all the consequences of a breach which could have been- in the contemplation of both parties, when contract was made, and that a telegraph company that receives a message for transmission, agrees to transmit it correctly and is answerable for any damages produced by its delay or mistake, but if the loss is not within the terms of the contract, or expectation of the sender, delay in sending or mistake in transmission, no liability could attach to the telegraph company. Held, that the loss sustained by plaintiff was the result of bad faith on the part of Lutz, and not of the mistake in the telegram.</p>

Louis Criminal Court. — Hon. . lis H. Ciarle, Judge. (1) The information does not advise defendant of the nature and canse of the accusation. against him. There is no allegation in the amended information describing in any manner, shape Qr form any label of any kind, but simply a printed label pasted to the information and alleged to be genuine. This is bad pleading even in a civil case. State v. Thierauf, 167 Mo. 429.

J. T. Nevillet Judge. (1) “One who refuses or fails to perform the conditions imposed on him by the terms of a contract, and shows no excuse for such refusal or failure can not recover for the breach of the contract by the other-party.” The Alida (C. C.), 12 Fed. 343; Baird v. Evans, 20 Ills.

<p>Appeal from Cape Girardeau Circuit Court. — Now. Henry C. Riley, Judge.</p> <p>STATEMENT.</p> <p>On June 3, 1901, Callie G. Boughton recovered, in the Cape Girardeau Court of Common Pleas, a judgment against Jesse W. McCollum for $600. An execution was issued on this judgment and delivered to the sheriff of Stoddard county who, by direction of plaintiff and her attorney, levied upon the following lots in the city of Dexter, in the said county, as the property of' Jesse McCollum, to-wit: All of lots 14, 15, 16 and 17,. and seventy feet off of the north end of lots 14 and 15, and thirty feet off of the north end of lots 16 and 17, and ninety feet off of the north end of lots 1 and 2, all in block 21 in the city of Dexter. Also lots 3, 4, 5, 6 and 7, block 4, and lots 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12, block 5; and lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,13 and 14 in block 6, in McCollum’s addition to the city of' Dexter.</p> <p>After the levy was made the lots were duly advertised by the sheriff: for sale. Before the day of sale, plaintiff sued out a temporary writ of injunction against the sheriff, restraining the sale of said lots. Plaintiff claimed to be the owner in fee of all of said lots and alleged that the sale under the execution would cast a cloud over her title and do her irreparable injury.</p> <p>The answer alleged that the suit in which the judgment was rendered was commenced in June, 1895, and was continuously pending until the final judgment was rendered; that when the suit was commenced Jesse Mc-Collum was the owner in fee of all the lots levied upon, but that pending the suit he made a voluntary conveyance thereof to his wife (the plaintiff) and two of his minor children, with the intent to hinder and delay plaintiff in the collection of her demand.</p> <p>The reply denied generally the affirmative allegations in the answer.</p> <p>On the trial the following admissions were made.</p> <p>“It is admitted by counsel that Jesse W. McCollum was the original owner of the land and property in controversy, and that he is the common source of title. •</p> <p>‘ ‘ It is admitted that plaintiff was the wife of J. W. McCollum at all times mentioned and that the two children mentioned in the deeds are their children.</p> <p>“It is admitted that the judgment upon which the execution was issued was rendered June 3, 1901.</p> <p>“It is admitted that the suit of Callie G. Boughton against Jesse W. McCollum, in which judgment was rendered in the Cape Girardeau Common Pleas Court on the 3d day of June, 1901, as stated in plaintiff’s petition, was brought in the year 1895, in the circuit court of Stoddard county; that that suit was continuously pending in that court until the change of venue to the common pleas court of Cape Girardeau county; that it continued to be pending- in that court until the judgment of June 3, 1901, was rendered.”</p> <p>To show title in her, plaintiff read in evidence the following deeds:</p> <p>First. A deed dated February 19, 1899, from the trustees of Dexter Hall Company (of which Jesse Mc-Collum was one) to plaintiff, to lots 16 and 17, in block 16, original town of Dexter, duly acknowledged, and recorded February 19, 1889.</p> <p>Second. Deed from Jesse W. McCollum and wife, to Russell A. Sisler, dated December 2, 1898, conveying ninety feet off of the north end of lots 1 and 2, block 21, original town of Dexter, duly acknowledged and recorded.</p> <p>Third. Deed from Jesse W. McCollum and A. J. McCollum, his wife, dated March 23,1898, to Russell A. Sisler, conveying “all of lots 14, 15, 16 and 17, block 16, of the city of Dexter, seventy feet off of the north end of lots 14 and 15, block 21, of the city of Dexter, lots 3, 4, 5, 6 and 7, block 4, of McCollum’s addition to the city of Dexter, thirty feet off of the north end of lots 16 and 17, block 21, city of Dexter, lots 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12, block 5, McCollum’s addition to the city of Dexter, and lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,13 and 14, McCollum’s addition to the city of Dexter, together with a stock of drugs now situate in the building on the north end of lots 16 and 17, block 21, of the city of. Dexter,” duly acknowledged and recorded.</p> <p>Fourth. Deed dated December 2, 1898, from Russell A. Sisler and wife, to A. J. McCollum, Harry Mc-Collum and Fred McCollum, conveying ninety feet off of the north end of lots 1 and 2, block 21, original town of Dexter, duly acknowledged and recorded.</p> <p>Fifth. Deed dated April 20,1898, from Russell A. Sisler and Georgia Sisler, his wife, to A. J. McCollum, Harry McCollum and Freddie R. McCollum, conveying “all of lots 14, 15, 16 and 17, block 16, of the city of Dexter, seventy feet off of the north end of lots 14 and 15, block 21, of the city of Dexter, lots 3, 4, 5, 6 and 7, block 4, of McCollum’s addition to tbe city of Dexter, thirty feet off of the north end of lots 16 and 17, block 21, city of Dexter, lots 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12, block 5, McCollum’s addition to the city of of Dexter, and lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14, block 6, McCollum’s addition to the city of Dexter, together with one stock of drugs now situate in the building on the north end of lots 16 and 17, and one saloon stock situated on lots 14 and 15 in the city of Dexter,” duly acknowledged and recorded.</p> <p>In respect to the giving of these deeds, Jesse W. McCollum testified as follows:</p> <p>“My name is Jesse W. McCollum, aged sixty-nine, live at Dexter, Missouri, was formerly in the drug and saloon business, but have been retired since early in the year 1898. I deeded the property in suit to my wife and children on account of my advanced age. I did not know how long I would live. I have two boys, both quite young, and in the event of my death I wanted them and my wife to have the property in suit. I wanted to arrange the matter that when I did pass away it would be unnecessary to appoint an administrator or incur any expense on that account. I did not owe a dollar to any person in the world and there were no judgments of any kind against me when I transferred the property; as I said, I was old and knew I could not live a great while at best, and while I could legally do so I wanted to put the title to this property in my wife and children. My wife has had absolute control and management of the property since the transfer. One of my boys is now twelve years of age and the other ten. I made the transfer in perfect good faith and without any intention of defrauding creditors. I had no creditors. Since then I have had nothing to do with the management or control of the property; have not been responsible for its obligations nor shared in its profits.”</p> <p>Russell A. Sisler testified that the consideration for the deeds was love and affection and that they were made to carry ont the wishes of J esse W. McCollnm.</p> <p>On April 9,1900, Jesse McColhnn recovered a judgment against Thomas J. Ulen and E. J. Malone, in the Mississippi Circuit Court, for $1,770, which judgment he, on the fifteenth day of June, 1901, assigned to his wife, A. J. McCollum.</p> <p>The court dissolved the injunction and dismissed plaintiff’s bill, from which judgment she duly appealed.</p> <p>(1) In the language of the Supreme Court: “It is the settled law of Missouri that land fraudulently conveyed may be sold on execution of a creditor as though no conveyance had ever been made, and the purchaser, upon proof of fraud, is entitled to a decree vesting the title in him.” R. S. 1899, sec. 2499; Slatterley v. Jones, 96 Mo. 216; Jacobs v. Smith, 89 Mo. 673; Lion-berger v. Baker, 88 Mo. 447. And in such case the fraudulent grantee will be decreed trustee for the purchaser. Woodard v. Mastín, 106 Mo. 324; Kuntz v. Troll, 86 App. 649. (2) “The only answer to these questions is that the property was equally open to the suit of a creditor, whether in the hands of the fraudulent vendor or fraudulent vendee.” Lander v. Ziehr, 150 Mo. 403; Snyder v. Free, 114 Mo. 367. (3) Callie Gr. Boughton’s action against J. W. McCollum was for tort, hence, was a lawful action under our statute. R. S. 1899, sec.'3398; Bump on Fraudulent Conveyances (4 Ed.), sec. 503. “A demand arising from a tort is in force from the time of the commissi on of the wrong.” “A judgment is prima facie a claim only from the institution of a suit.” Yet “Evidence may be introduced to show that a judgment is founded upon a prior claim.” Bump on Fraudulent Convey-anees (4 Ed.), secs. 503, 506 and 507; Bine v. Penniston, 27 Mo. 272.</p>

Louis City Circuit Court. — Eon. E. D, Wood, Judge. STATEMENT. The suit is to recover $350, plaintiff’s part of rent on certain premises in the city of St. Louis which the defendant collected and withheld from plaintiff. The answer set np a counterclaim, to-wit, a note for $2,000 dated July 8, 1895, payable to defendant and executed by plaintiff and her husband, Adelbert Zuendt.

— How. L, B. Wood-side, Judge. * (1) “That which is originally intended as a gratuity can not be turned into a charge.” Whaley v. Peek, 49 Mo. 80; Polger v. Heidel, 60 Mo. 284.

Louis City Circuit Court. — Hem. Selden P. Spencer, Judge. STATEMENT. The suit is to recover $2,000 on a certificate of insurance issued by defendant on the life of Gustav Winter, payable at his death to his wife Lena Winter, the plaintiff. It is admitted by the pleadings that the defendant is a fraternal beneficiary corporation.

Louis City Circuit Court. — Hon. S. P. Spencer, Judge. (1) There was no conversion by the appellant of any coal in the possession of or as the property of the respondents. This coal was loaded into the cars of appellant, after appellant notified the Hillsboro company, that they were left at its mine only that they might be loaded for appellant’s nse, and, therefore, the coal came into the possession of the appellant, and appellant had a right to take it for its nse.

— How. JE. M. Hughes, Judge. (1) “When a party gives Ms own note for his own debt, and it is expressly stipulated between the holder of the note and the payer that it is to be in satisfaction of the debt, it is an accord and satisfaction of the original canse of action; bnt in the absence of an express agreement to that effect it is not, and if not paid, an action may be maintained on the account or demand upon the surrender of the note.” Holland v. Rougey, 168 Mo; 16.

— Hon. H. G. Biley, Judge. (1) The contract sued on is void. R. S. 1899, sec. 1030; Downing v. Ringer, 7 Mo. 585. (2) And after compliance by filing a certificate of incorporation, etc., can not relate back and validate the contract sued on. Blevins v. Fairly, 71 Mo. App. 259; Lumber Company v. Thomas, 92 Tenn. 587. (3) In the case of Carson-Rand Co. v. Stern, 129 Mo. 381, the question of the validity of the notes and accounts sued on was not raised.

— Hon. Henry C. Pepper, Judge. (1) The evidence shows no contract of exchange or of sale of the wheat of either Potter or Sims or Johnson; hut does show that there was simply a delivery by them of wheat to defendant, who was engaged in the business of receiving and storing in its elevator, wheat of numerous farmers to be held for their use and subsequent disposal at their pleasure; in other words, that in each instance there was a transfer of the possession, but no transfer…

— lion. J. L. Forty Judge. When the loan association has become insolvent, payments on stock will not be applied as credits on the loan. The borrower must repay his loan and should present his claim for stock payments to be allowed in' due course against the insolvent estate. Brown v. Archer, 62 Mo. App. 277; Price v. Loan Ass’n, 75 Mo. App. 551; Clark v. Lopp, 80 Mo. App. 542; State ex rel. v. Loan Ass’n, 80 Mo. App. 585; Woerhide v. Johnston, 81 Mo.

— Ho». Edwin B. McKee, Judge. STATEMENT. Defendant, tlie city of La Belle, is a city of the fourth class. The plaintiff was injured by a fall, alleged to have been caused by defects in a sidewalk on the ■east side of Pomeroy street, opposite the mouth of Congress street in said city. The answer was a general denial and a plea of contributory negligence.

— Hon. H. C. Pepper, Judge. Where the evidence in support of the interpleader’s claim, was sufficient to make out her claim, unim-peached, and unattended by any circumstances tending to cast suspicion on it, and there being no substantial evidence to the contrary, a verdict for the plaintiff should on appeal be set aside. It was the duty of the trial court to have sustained a motion for new trial. Lionberger v. Pohlman, 16 Mo. App. 392; Walton v. Railroad, 49 Mo.

■Appeal from Iron Circuit Court. — 11cm. F. R. D earing, Judge. STATEMENT.

<p>Appeal from Pemiscot Circuit Court. — ifow. H. G. Riley, Judge.</p> <p>STATEMENT.</p> <p>This proceeding was begun before a justice of the peace in Pemiscot county, upon the following affidavit:</p> <p>“State of Missouri, county of Pemiscot, ss. — Before me, H. P. Little, a justice of the peace for said county, personally came J. I. Barnett, who being duly sworn according to law, deposeth and sayeth, that on or about the 16th day of June, 1901, in the county aforesaid, one Louis Blands did then and there willfully and unlawfully sell intoxicating liquor in less quantity than three gallons, to-wit, one pint or gill without taking out or having a license as a dramshop keeper, at Tyler, Missouri, on the 16th day of June, 1901, and this deponent says or verily believes that one Louis Blands is guilty of the fact charged, and further this deponent saith not.</p> <p>“J. I. Barnett.</p> <p>“Sworn and subscribed before me this 19th day of June, 1901.</p> <p>“H. P. Little, “Justice of the Peace.”</p> <p>A warrant was issued thereon, defendant arrested and July 1st, the prosecuting attorney filed with the justice an information in the form following:</p> <p>“Now at this day comes defendant, in person, as well as by his attorneys, and also comes the State of Missouri, by L. L. Collins, the prosecuting attorney of Pemiscot county, who prosecutes the pleas of the State of Missouri in this behalf, and this case is taken up and submitted to the court, sitting as a jury, upon the following agreed statement of facts, to-wit:</p> <p>“ ‘ That the defendant is employed by a firm, or co-partnership, residing in Memphis, in the State of Tennessee, as a bartender in a dramshop, or place where intoxicating liquors are sold, situate and operated on board of the steamboat Ferd Herold; that said Ferd Herold is a steamer engaged as a common carrier in interstate commerce, and plying the' Mississippi river between Memphis, in the State of Tennessee, which city is her home port, and Cairo in State of Illinois ;that during all of the times herein mentioned said Louis Blands was such hired bartender in said place of sale on said Ferd Herold so plying said Mississippi river, engaged in interstate commerce as aforesaid; that the co-partnership by whom defendant is employed, residing in Memphis, Tennessee, as aforesaid, is the owner of the bar privilege upon the Lee Line Steamers, of which said Ferd Herold is one; that said firm for which defendant works, and by whom he is employed, has duly complied with all laws relative to the sale of intoxicating liquors on said steamboat Ferd Herold and is duly licensed by the United States, the county of Shelby, the city of Memphis, and the State of Tennessee, to sell the same in the home port of said steamboat, and has taken out and at the time of the sales charged in the information herein, held license, for such sales of intoxicating liquors in her home port from said steamer, from the United States, the city of Memphis, the county of Shelby and the State of Tennessee.</p> <p>“ ‘ That defendant sold in his capacity as aforesaid, from a bar erected on said steamboat Ferd Herold, while said steamboat was lying at the wharf at Tyler, in Pemiscot county, Missouri, engaged in discharging freight and in making her regular trips up the Mississippi river from Memphis, Tennessee, to Cairo, Illinois, a glass of whiskey, and received therefor in payment the sum of ten cents.</p> <p>“ ‘That defendant, nor the co-partnership for whom he acted, had not, prior to such sale, taken out a license to sell liquor in the county of Pemiscot, nor in the State of Missouri, nor did defendant or his employers have any such license at said time; that said steamboat was not lying at the said wharf at Tyler, Missouri, for the purpose of permitting said sale as made, but for the sole purpose of taking on and discharging freight as an incident of the traffic in which she was engaged. That said act and said sale took place within one year next before the filing of the information herein.’ ”</p> <p>Defendants’ motion for a new trial and in arrest being overruled, he has prosecuted this appeal.</p> <p>(1) The information was not verified, and the complaint filed with the justice of the peace stated no offense known to the law. State v. Sartin, 66 Mo. App. 626; State v. White, 55 Mo. App. 356. (2) The sale was made from a bar situated on a steamboat engaged in interstate commerce and plying the waters of the Mississippi river, which is a navigable stream. The owners of the bar had complied with all of the laws relative to the sale of intoxicating liquors upon tbe steamboats at her home port of Memphis, of Tennessee. State v. Dennie, 57 La. Ann. 608; Welsh v. State, 9 L. E. A. 664.</p> <p>(3) It is not necessary that an information filed by the prosecuting attorney he sworn to. R. S. 1899, sec. 2749; State v. Ransberger, 42 Mo. App. 466; State v. Ransberger, 106 Mo. 135; State v. McCarver, 47 Mo. App. 650; State v. Manpin, 71 Mo. App. 54. (2) The affidavit upon which the warrant was issued for the arrest of the defendant does charge an offense, because it charges that the defendant sold in Pemiscot county, Missouri, intoxicating liquor in less quantity than three gallons, to-wit, one pint or one gill, and that the defendant did not then and there have a license as a dramshop-keeper or any other legal authority to sell the same. R. S. 1899, see. 2991. (3) It is not necessary in the affidavit for a warrant to state the kind of liquor; all that is necessary is to state “that it is intoxicating liquor.” Kelley’s Criminal Law, page 749, sec. 1074; Bishop Stat. Cr., sec. 1038. (4) The ordinary meaning of “a glass of whiskey” bought at a bar, is a drink of whiskey. The information in this case charges that a “glass of whiskey” is a less quantity than three gallons. Then the admission in the agreed statement of facts that the defendant did sell “a glass of whiskey” is an admission that the same was less than three gallons. (5) The agreed state of facts show that, the whiskey was sold in Pemiscot county, Missouri, while the steamer Ferd Herold was lying at the wharf at Tyler, Pemiscot county, Missouri. The court had jurisdiction of the offense if committed on the Mississippi river. Constitution of Missouri, art. 1, sec. 1; State v. Metcalf, 65 Mo. App. 681. (6) Before the defendant could lawfully make sales of intoxicating liquor in less quantities than three gallons, he was required to take out and have a license as a dramshop-keeper. R. S. 1899, sec. 2991.</p>

— Now. E. M. Hughes, Judge. (1) The statute of limitations does not run in favor of the occupant of land given, granted, sequestered or appropriated to any public use, unless possession was taken prior to August 1,1866. R. S. 1899, sec. 4270; Railroad v. Lottman, 149 Mo..657; State v. Warner, 51 Mo. App. 174; Coleman v. Drane, 116 Mo. 387.

Louis City Circuit Court. — How. D: D. Fisher, Judge. (1) The evidence showed that the policy of insurance set out in plaintiff’s petition was taken out in consideration of said defendant’s agreement to release and discharge the deceased (Stokes) from any further liability on account of the indebtedness of said Stokes to defendant, and, therefore, the said policy of insurance became the absolute and unqualified property of the defendant, in which said deceased (Stokes) and…

<p>1. Sheriff as a Peace Officer: MISDEMEANOR: POWER TO ARREST EOR. Peace officers, in the absence of an empowering statute, have no authority to arrest an individual for a misdemeanor without process except on view.</p> <p>2. -: ARREST: BONDSMEN OE SHERIFF, LIABLE WHEN. Only illegal acts done by a sheriff, under color of his office, will render the bondsmen liable, -if the illegality consists in an abuse of authority, instead of an outright usurpation thereof.</p> <p>3. -: - — : BONDSMEN OF SHERIFF NOT LIABLE, WHEN. Sureties on a sheriff’s bond, conditioned if he shall faithfully discharge the duties of his office as sheriff, are not liable for an arrest by him, without a warrant for a misdemeanor not committed in his view, as such arrest was not-under color of office, although he was acting as sheriff at the time, while he would be personally liable for misconduct.</p>

<p>Appeal from Lawrence Circuit Court. — New. Henry G. Pepper, Judge.</p> <p>(1) A ratification must be pleaded by a party seeking its protection, and unless it is pleaded it can not avail. Wade v. Hardy, 75 Mo. 399; Webb v. Ailing-ton & Anderson, 27 Mo. App. 571. (2) No action shall be maintained whereby to charge any person upon any debt contracted during infancy unless such person sba.11 have ratified the same by some other act than a verbal promise to pay the same, and the following acts on the part of such person after he becomes of full age shall constitute a ratification of such debt: first, an acknowledgment of or promise to pay such debt made in writing; second, a partial payment upon such debt. R. S. 1889, sec. 3433.</p> <p>That the defendant ratified this contract after he became of age is admitted. Witness Cherry also testified that the defendant directed him to pay the amount due him for work, to plaintiff Snyder, on this note, and that this was after the defendant became of age; that plaintiff agreed to accept the amount and credit the note for such sum. This would constitute a ratification. B. S. 1899, sec. 3423; Brown v. Kirk, 20 Mo. App. 524; Brown v. Croy, 74 Mo. App. 462; and cases cited; 1 Parsons on Contracts (5 Ed.), p. 221; 4 Amer. and Eng. Ency. of Law (2.Ed.), p. 503, and pp. 305, 666 and 672, of vol. 21; 2 Daniel on Neg. Inst., secs. 1140 to 1291.</p>

— Row. James L. Fort/ Judge. (1) The court erred in giving improper and incorrect instructions to the jury at the instance of plaintiff, and in'refusing to give correct and proper instructions to the jury at the request of defendant. The court erred in rejecting competent, legal and relevant testimony offered by the defendant. The court erred in receiving incompetent, illegal and irrelevant testimony offered by plaintiff.

— lion. J. J. Gideon, Judge. (1) The indictment charges a sale of spirituons liquor, and then attempts to set ont the kind of spirituous liquor sold by alleging one pint of beer, which being inconsistent with and repugnant to the former averment of the offense charged, should be stricken out. State v. Flint, 62 Mo. 393. (2) The court erred in overruling the demurrer to the evidence, a,s courts take judicial notice of the fact that beer is a malt liquor.

<p>Appeal from. Oregon Circuit Court. — New. W. N. Evans, Judge.</p> <p>(1) A city officer is not entitled to recover any salary during the time for which, he is suspended from office on charges preferred for misconduct. Westburg v. Kansas City, 64 Mo. 493; Howard v. St. Louis, 88 Mo. 656: State ex rel. v. Walbridge, 153 Mo. 203; Louis v. St. Louis, 12 Mo. App. 570. (2) The resignation of Blackwell as marshal of appellant city of Thayer vacated the office, without the acceptance of his resignation by the mayor and board of aldermen. Thro op’s Public Officers', sec. 410; 19 Am. and Eng. Ency.Law (1 Ed.) .p. 526s, and cases cited in note 1, 526t. (3) Respondent was legally suspended from exercising the duties' of city marshal of appellant city. R. S. 1899, sec. 5904; Ch. 8, sec. 8, Revised Ordinances City of Thayer.</p>

— I!cm. J. J. Gideon, Judge. (1) Defendant contends that the trial court erred in sustaining the motion of the prosecuting attorney to revoke the pharmacist certificate of defendant because there is no such power given the judge of the criminal court by the statutes providing for a board of pharmacy, the board of pharmacy under the statutes having the sole power to issue certificates to pharmacists, and that tribunal, we contend, is the only one having power to revoke such…

— How. James L. Fort, Judge. , (1) Lane having taken charge of.the estates of Sdott and Gregory, under the bond he gave in 1888, (that bond and not the bond he gave in 1892 is responsible for .any defalcation on his part, if there be any, which we deny. State ex rel. v. Holman, 93 Mo. App. 611. (2) It is well-settled law in this State that final judgments of probate courts, in matters within their jurisdiction, are as conclusive as those of courts of general jurisdiction.

— Hon. N. M. Shelton, Judge. (1) The-demand of plaintiff was presented and filed during the vacation of the probate court, as appears by the transcript from that court. Held: however, that the matter was properly submitted to the jury. In the case of Hayden v. Parsons, 70 Mo.

— Hon. H. G. Riley, Judge. (1) The court should have instructed the jury under what law the ditch was dng. This is elementary. It assumes that under the law of 1897 the ditch should have been commenced at the lower end “so as to avoid the accumulation of water,” whereas the law of-1897 asserts no such reason therefor. (2) It is faulty because the ditch was dug under the law of 1899. Session acts 1899, sec. 1, p. 279; secs. 37, 38, p. 292.

— Hon. II. G. Riley, Judge. (1) In answer to reasons numbered 4, 5 and 9, in respondent’s motion to dismiss, it is conceded by appellant that no appeal can be taken by the plaintiff from a judgment rendered on a plea in abatement solely. In this case, however, there was a judgment both on the plea in abatement and the merits. The record shows that both a plea in abatement and an answer to the merits was filed by defendant.

Louis City Circuit Court. — Ho». JEL. D. Wood, Judge. (1) The action of the circuit court in granting a new trial is subject to review by the appellate courts. Hill v. Wilkins, 4 Mo. 86.

<p>Appeal from Pike Circnit Court. — Ho». David II. Eby, Judge.</p>

— Ho». Wm. N. Evams, Judge. (1) The rule is the same'in cases of attorney and client. An attorney has no authority to pay out money for his client, making the client his debtor, or do any other act affecting the cause of action, without authority from his client either expressed or implied. Ratican v. Union Depot Co., 80 Mo. App. 528; Wonderly v. Martin, 69 Mo. App. 86;'Willard v. The Seigel Gas Fixture Co., 47 Mo. App. 1.

<p>Appeal from Butler Circuit Court. — How. Jas. L. Fort, Judge.</p>

<p>1. Railway, Street: PERSONAL INJURY: CONTRIBUTORY NEGLIGENCE. Plaintiff, who was deaf, was undoubtedly guilty of negligence in walking on the ear track without looking back frequently to see if a car was coming.</p> <p>2. -: -: -: QUESTION OP PROXIMATE CAUSE OP INJURY, POR JURY. Plaintiff was deaf and was walking along the track of defendant’s street railway when a ear approached him from behind, the motorman making no effort to cheek the car until he was within ten or fifteen feet of plaintiff, although he rang the bell, and at about the time he began to check the car, called to him. The track was straight, and the motorman able to-see plaintiff a long distance ahead. Held, that, though plaintiff was ghilty of contributory negligence in walking upon the track, there was a question for the jury as to whether the motorman was not guilty of negligence proximately causing the injury, in failing sooner to check the ear after he became aware of plaintiff’s dangerous situation.</p> <p>3. -: -: -: HUMANE DOCTRINE AND CONTRIBUTORY NEGLIGENCE, RECONCILABLE. The “last chance or humane doctrine” is reconcilable with that of contributory negligence only when the defendant, by the exercise of ordinary care, could save the negligent plaintiff after such negligence on his part had ceased.</p> <p>4.-: -: CONTRIBUTORY NEGLIGENCE: WILLFUL CONDUCT OP DEPENDANT. Defendant may be liable notwithstanding plaintiff’s contributory negligence that continued until he was hurt, on the theory that it willfully declined to save plaintiff when it could have done so by the exercise of reasonable care.</p>

Charles Circuit Court — No». E. M. Hughes, Judge. (1) The lien of Keen, plaintiff’s lessor, on the crop raised during the year 1897 by plaintiff on the premises by him occupied during the year 1897-1898, for the payment of the rent for said year 1897, could' only be enforced by due legal proceedings in a court of competent jurisdiction, this plaintiff being a necessary party.

<p>Appeal from Greene Circuit Court. — iiow. J. T. Neville, Judge.</p> <p>. STATEMENT.</p> <p>Omitting caption the count of the petition on which the cause was submitted to the jury is as follows</p> <p>“Comes now the plaintiff, and for its amended petition states that it is a corporation duly organized under the laws of the State of Texas.</p> <p>“ For cause of action plaintiff states that on the twenty-first day of December, 1901, it bought of the defendants at Springfield, Missouri, 2,000 barrels of No. 1 apples; that at the time of said sale said apples were warranted by the defendants to be No. 1 apples, No. 1 apples being a particular grade or quality of apples well known to the market and to persons buying, selling and dealing in apples in the market in Springfield, Missouri; and plaintiff avers that it paid to the defendants therefor the sum of $7,000; that by the terms of said sale and agreement said defendants were to superintend the shipping of said apples to plaintiff at its p] ace of business in the State of Texas as called for, and that apples were subsequently shipped to plaintiff in the State of Texas in the pretended compliance on the part of said defendants with the terms of their said contract; that said apples so shipped to plaintiff and received by it were not of the kind and quality bought by plaintiff of said defendants, but were greatly inferior in quality and value to those which plaintiff had bought in this; that 746 barrels of the apples so shipped to plaintiff and received by it were not of the grade or quality of apples known as No. 1 apples, but plaintiff avers that the apples contained in said 746 barrels were very small and knotty and greatly inferior in quality and value to No. 1 apples and worth much less in the market. Plaintiff avers that the apples contained in said 746 barrels were practically worthless and of but little value; that by reason of the premises plaintiff has been damaged in the sum of $1,700. Wherefore plaintiff prays judgment for the sum of $1,700 and for costs.”</p> <p>The answer is as follows:</p> <p>“Comes now the defendants and for their answer to plaintiff’s amended petition in the above entitled cause, and to each and both counts thereof deny each and every allegation therein contained, and having fully answered pray to be discharged without day and with cost.</p> <p>“For another and further and separate defense defendants say that they deny that they sold plaintiff 2,000 barrels of apples as alleged, but aver and charge the facts to be that prior to the twenty-first day of December, 1901, the defendants gave the plaintiff an option contract to purchase Laid apples; that before the expiration of said option the plaintiff notified the defendants of its intention to purchase and on the twenty-first day of December, instead of purchasing said apples under said option contract, it directed plaintiff to sell, assign, transfer and deliver, the said apples to the State National Bank of Denison, Texas, upon the payment by said bank of $7,000, the price named in the option contract, to the defendants herein; that the said State Bank of Denison, Texas, paid defendants the said $7,000, and the defendants at the plaintiff’s request executed and delivered to said bank a bill of sale for said apples; that at the time of making said bill of sale said apples were stored in the warehouse of the Springfield Ice and Refrigerating Company of Springfield, Missouri, and defendants held therefor a bill of lading or warehouse receipt duly issued on same and other apples; that the defendants’ warehouse receipt was cancelled as to the said 2,000 barrels covered by the bill of sale, and a warehouse receipt issued by said Springfield Ice and Refrigerating Company to the said State Bank of Deni-son, Texas, and said apples delivered in said warehouse at Springfield, Missouri, to'said bank by the issuance of said receipt, and defendants deny that they had anything to do with the shipping of said apples, but aver that said apples were delivered to said bank in said warehouse in Springfield, Missouri.</p> <p>“Defendants further state that prior to taking said option on said apples the plaintiff, through its agent, fully inspected said apples, and that the apples so delivered to the said State Bank of Denison, Texas, by defendants, as .aforesaid, in said warehouse, were No. 1 apples, and none of them No. 2 or orchard runs. Wherefore defendants, having fully answered, pray to be discharged without day and with their cost. ’ ’</p> <p>The reply is as follows:</p> <p>“Comes now the plaintiff, and replying to defendants ’ answer states that it denies each and every allegation therein contained. Further replying, plaintiff states that, although the bill of sale for said apples executed by defendants was made to the National Bank of Denison, Texas, the same was so made for the purpose only of securing to said bank the purchase price of said apples, which said amount plaintiff borrowed from said bank for said purpose; that this plaintiff was the real party in interest, and that said contract of sale was for its sole benefit and use, and that said bank had no interest in said apples except as security for a temporary loan for the money with which defendants were paid for'said apples; that all the foregoing facts were known to defendants at the time of said transaction.</p> <p>The evidence is that the plaintiff is a Texas cor-, poration having its principal office in Denison in that State. The defendants, in the fall of 1901, as co-partners, raised, bought and barreled apples and put them in cold storage in the city of Springfield, Missouri, taking a warehouse receipt for 3,101 barrels from the cold storage company. Early in December, 1901, Frank Mazzei,'an officer of the plaintiff company, went to Springfield and met W. C. Lane, one of the defendants, with a view of- buying apples. He and W. C. Lane inspected some of the apples in cold storage by opening the barrels and making an examination of their contents. Mazzei was pleased with the apples and asked Lane if the lot was as good as those inspected. Lane assured him that they were and that they would all grade as No. 1 apples. It was then agreed that plaintiff would take 2,000 barrels of the apples at $3.50 per barrel, but plaintiff was not prepared to pay the money down for the apples and it was agreed between Mazzei and W. C. Lane that defendants would hold the apples for a few days to give Mazzei time to return to Denison and have his company make some arrangement to get the money to pay for the apples. On Mazzei’s return to Denison, plaintiff arranged’ with the State National Bank of Denison for the money to pay for the apples by depositing with it $1,000 in cash and agreeing that the bill of sale and a warehouse receipt for the apples should be made to the bank, and that the apples should be shipped to the bank as the plaintiff might need them, plaintiff to pay all charges and a certain price per barrel for each carload of apples on its arrival at Denison before unloading the car. Plaintiff wired the defendants in due time that it would taire and pay for the apples. Through the Holland Bank at Springfield, the Denison Bank paid defendants $7,000, the purchase price for the 2,000 barrels of apples, taking from defendants the following bill of sale:</p> <p>‘‘Know all men by these presents, that we, W. C. Lane and I. E. Lane, of Springfield, in the county of Greene and State of Missouri, in consideration of tho sum of seven thousand dollars to us paid by the State National Bank of Denison, Texas, the receipt whereof is hereby acknowledged, do hereby grant, sell, transfer and deliver, in the cold storage warehouse in the city of Springfield, county of Greene, and State of Missouri, unto the said State National Bank of Denison, Texas, the following goods and chattels, viz.: two thousand barrels of No. 1 apples, to have and to hold and singular the said goods and chattels to the said State National Bank of Denison, Texas, and to its successors and assigns to its own use and behoof forever. And we hereby covenant with the said grantee that we are the lawful owners of the said goods and chattels; that they are free from all liens and incumbrances for cold storage and chattel mortgages and otherwise; that we have good right to sell the same as aforesaid, and that we will warrant and defend the same against the lawful claims and demands of all persons.</p> <p>“In witness whereof, we, W. C. Lane and I. E. Lane, hereunto set our hands and seals this twenty-first day of December, A. D. 1901.</p> <p>“I. E. LaNE,</p> <p>“W. C. LaNB.”</p> <p>A. warehouse receipt was given by the cold storage company to the Denison Bank for the apples, and indorsed on the warehouse receipt that had theretofore been given to the defendants.</p> <p>The shipping of the apples to the Denison Bank was begun on December 30, 1901, and was continued at short intervals until April 19, 1902, when the last shipment was made.</p> <p>Plaintiff’s evidence tends to show that they sold the first two carloads to customers in Denison and nearby towns; that complaints come in from their customers about tlie apples and their salesmen were sent to inspect them and found some of the barrels to contain small, knotty and specked apples that were comparatively worthless, on account of which they were compelled to make restitution; that after this they inspected and repacked all the apples received;.that every barrel received was marked “Lane & Lane” or “L. & L.” and contained a mark indicating the grade of the apples. That of the 2,000 barrels, 334 were marked “No. 2,” and 412 barrels “O. R.” (meaning orchard run) that the No. 2 apples were undersized, specked and knotty and they were compelled’to sell them at prices ranging from $3 to $1.50 per barrel; that the apples in the barrels marked “O. R.” were very much- undersized, mostly the size of-walnuts, were specked, knotty and a portion of them worthless, and were given away to be fed to the hogs; that for these apples, after throwing out the worthless ones and repacking what was left, they got from $1.50 to $2.50 per barrel; that the barrels marked “No. 1” contained good salable apples and were ’ sold at prices ranging from $5.50 to $6 per barrel.</p> <p>Plaintiff wrote to the defendants during the shipping period and made complaint of the quality of the apples that were shipped to them and asked them to look after the future shipments and see that none but No. 1 apples were sent, and also notified them that the company would look to them to make reparation for the inferior apples. Defendants did not answer until after . the third letter of complaint was written. This answer is dated Eebruary 11, 1902, and is as follows:</p> <p>‘ ‘ Texas Fruit Co.,</p> <p>“Denison, Tex.</p> <p>‘ ‘ Gentlemen: Yours of the seventeenth is at hand, in which you render complaint about the apples we sold you. In the first place we wrote you before we would sell you the fruit you would have to send a representative to inspect the stock, which you did. Mr. Mazzei went through the goods, opened many barrels, saw to his entire satisfaction just what he was getting; bought after his own inspection. Contract entered into and signed, of which we hold a copy, plainly stating we suffer no loss from deterioration or slackage of the stock. We paid cold storage and insurance on the 2,000 barrels. The cold storage people gave a storage receipt for the amount of the Denison Bank, which took the matter entirely out of our hands. We offered to superintend the loading. The cold storage people frankly declined to have us do so, stating they had given their receipt to the Denison Bank for the 2,000 barrels, who instructed them to fill orders only as they came from them through Holland’s Bank of Springfield, Missouri. The Denison Bank made no provision whatever for us to have anything to do with the fruit in any way. Hence, we are entirely out of the matter. You indicate unless we make up your assumed losses litigation will follow. We wish to say in all kindness and friendship —you got the exact fruit you bought after your own personal inspection; took them just as they were. We have complied with every stipulation of the contract. You certainly understand apples held in cold storage late as the first of January require repacking. More or less deterioration and slackage will take place. If shipped without repacking the faced end will he disturbed. Our contract with you foreshadows what must, he anticipated in stock long held in cold storage. So far as us making up any assumed loss or deterioration, we will not do anything of the kind. We never have been in a courtroom to prosecute or defend a suit. We love the law and are willing to abide its excellence.</p> <p>“Yours most truly,</p> <p>‘ ‘ LaNE & Lake. ’ ’</p> <p>On the part of defendants the evidence tends to prove that W. C. Lane resided at Springfield, Missouri, and that he bought about 800 barrels of apples from farmers in the neighborhood of that city in the fall of 1901; that the apples were carefully sorted by competent and experienced fruit packers and none but strictly No. 1 apples were put in the barrels and sent to cold storage. That I. R. Lane resided in Mountain Grove, Wright county, Missouri, and owned a large orchard, one of the best in the country; that a portion of the apples were gathered from his orchard and barreled under his supervision, and none but strictly No. 1 apples were barreled; that he had a large warehouse in Mountain Grove and bought apples from the farmer’s wagons as they brought them in, graded them himself as they were unloaded from the wagons into his warehouse ; that they were then placed on a large table and before being put into barrels were again carefully inspected and graded and that none but strictly No. 1 apples were allowed to go into any of the barrels; that the apples thus selected and packed (about 1,300 barrels) were shipped by rail to Springfield and put in cold storage along with the 800 barrels stored by W. G. Lane, his son and partner. That Mazzei spent a part of two days inspecting the apples in cold storage and inspected a great number of them; that after executing the bill of sale, the warehouse receipt they held was credited by the cold storage company with the 2,000 barrels of apples sold and that they had nothing more to do with them or their shipment.</p> <p>In rebuttal plaintiff offered evidence tending to show that from 75 to 150 barrels of the apples put in cold storage by defendants were marked “O. R.,” that Mazzei did not open and inspect exceeding 100 or 150 barrels of the apples in cold storage.</p> <p>The court refused all the instructions asked by defendant and likewise all asked by the plaintiff, and of its own motion gave the.following:</p> <p>“In this ease the plaintiff sues the defendants on account of an alleged difference in the grade of a lot of apples sold by defendants to plaintiff.</p> <p>“The first count in.the plaintiff’s petition is bottomed on a breach of warranty. The second count is bottomed on fraud.</p> <p>‘ ‘ The uncontradicted evidence shows a sale by defendants to plaintiff of 2,000 barrels of apples of grade No. 1, and the mere fact that the bill of sale was made to the bank by direction of plaintiff does not in any way affect the plaintiff’s rights to recover, provided the apples were not of the grade contracted for.</p> <p>“Defendants admit they represented the apples as being of grade No. 1, and also that they contracted for the sale of grade No. 1 apples. Such admissions make this a contract of sale with a warranty that the apples are of á quality of grade No. 1 in the Springfield, Missouri, market, and if you find from the evidence that the apples delivered Avere of an inferior quality to grade No. 1, your verdict should be for the plaintiff.</p> <p>“In this connection you are instructed that if at the time of the changing of the warehouse receipt the defendants had in storage the full two thousand barrels of No. 1 apples, then the transaction between the parties of surrendering the old and issuing a new receipt (being in law a delivery of the 2,000 barrels of grade No. 1 apples under the contract) would be a compliance with the contract and plaintiff could not recover.</p> <p>“The burden of proving that the apples delivered were of an inferior grade to No. 1 apples is on the plaintiff, and he must show the same by a preponderance or greater weight of the exúdence, and unless he has so done your verdict should be for the defendant.</p> <p>“The fact that plaintiff’s agent, Mazzei, made a partial inspection of the apples before purchasing would not affect plaintiff’s right to recover if the apples were any of them inferior to the contract grade.</p> <p>“If yon find the issues in favor of the plaintiff you will assess its damages at the difference between the value in the Springfield, Missouri, market on the day of the sale and delivery, that is, December 21, 1901, of grade one apples and the apples actually delivered, notwithstanding what they may have been sold for in the State of Texas.</p> <p>“You will find the issues for the defendants as to the second count in the petition.”</p> <p>The jury found the issues for plaintiff on the first count, assessing the damages at $1,119 and found the issues on the second count of the petition for defendants.</p> <p>After unsuccessful motions for new trial and in • arrest of judgment, defendants appealed.</p> <p>(1) The defendants in this case were entitled to go to the jury on clear and unambiguous declarations of law. And the instructions asked by them should have been given. Becraft v. Grist, 52 Mo. App. 586; Alberger v. White, 117 Mo. 347; Stanley v. Union Depot, 114 Mo. 606; Bank v. Lonergan, 21 Mo. 46; Belt v. Goode, 31 Mo. 128. (2) The instructions given by the court, of its own motion, are in the nature of a general dissertation upon the case and a comment and commentary upon the testimony with instructions intermingled and in the phraseology which, taken as a whole, is ambiguous and misleading. Legg v. Johnson, 23 Mo. App. 590; Clark v. Kitchen, 52 Mo. 316; Young v. Riden-baugh, 67 Mo. 574; Greer v. Railroad, 80 Mo. 555; Dun v. Dunnaker, 87 Mo. 597; State v. Petit, 114 Mo. 410; State v. Bank, 17 Mo. 482.</p> <p>(1) All of the evidence introduced by both sides of the case shows that the apples were warranted to be No. 1 apples, and it just as clearly appears that they were not. That a seller can warrant even against obvious defects is well established. June & C.o. v. Falkinburg, ■89 Mo. App. 563; Samuel v. Guin’s Est., 49 Mo. App. 8; Branson y. Turner, 77 Mo. 489. (2) If from tlie character, situation or surroundings of the thing sold, one party is compelled to trust to the warranty or representations of the other, the law will protect him in so doing. Chase v. Rusk, 90 Mo. App. 25; Cahn v. Reid, 18 Mo. App. 127. (3) This doctrine applies not alone to real hut also to personal property. Joplin Water Co. v. Bathe, 41 Mo. App. 285; Branson v. Turner, 77 Mo. 489; Grigsby v. Stapleton, 94 Mo. 423. (4) There were a number of such facts in this case and the court’s instructions thereon were undoubtedly justified by the evidence in the case, the condition on the record, and matter assumed to be true by the defendants themselves. Dickson v. Railroad, 104 Mo. 491; Walker v. Kansas •City, 99 Mo. 647; Pope v. Railroad, 99 Mo. 400; Fields v. Railroad, 80 Mo. 203.</p>

<p>Appeal from St. Louis City Circuit Court.— Hon. D. D. Fisher, Judge.</p> <p>(1) The court below erred in adjudging that the so-called trust fund should in any event he paid over to the State of Missouri as an escheat fund. In default of the proper owners coining forward and making claim, G-lover & Shepley and their estate own the money. In no event could the fund go to the State of Missouri. (2) The court below erred when it adjudged and decreed that section 7381, Revised Statutes 1899, of the State of Missouri, had any application to the case. That section has reference solely to a situation where heirs, legatees or representatives make no claim. The mere reading of the statute shows this. (3) The evidence in this case is undisputed, and section 7381 has no application thereto. The very terms of the statute forbid this. Glover & Shepley collected the money for a client. The evidence shows that the client refused to receive it. And the mere fact that Glover & Shepley died after-wards does not make the fund escheat to the State. (4) "When Glover & Shepley collected the money, and the same is true as to the estate, they owned it as against all the world, except the true owners. In their hands it did not escheat. The true owners could come along at any moment and claim it, but until they did so Glover & Shepley owned the money. In short, Glover & Shep-ley had a title as against all the world, except the true owners.</p> <p>(1) In trusts of personalty, the trust funds do not vest in the trustees upon failure of cestuis but escheat to the State. Taylor v. Hogarth, 14 Sim. 8; Middleton v. ■ Spicer, 1 Bro. C. C. 201; 11 Am. and Eng. Ency. of Law (2 Ed.), 323. (2) Personal property held in trust by a decedent is not assets in tbe bands of bis administrator for distribution to legatees or next of kin, but tbe administrator takes it as trustee for tbe cestuis, and in default of cestuis as trustee for tbe State. Moses v. Murgatroyd, 1 Johns. Cb. 119'; Kip v. Bank, 10 Johns. 63; Quinby v. Walker, 14 Ohio St. 193; Boone v. Bank, 84 N. T. 83; 11 Am. and Eng. Ency. of Law (2 Ed.), 849. (3) Tbe trust fund, not having been claimed by tbe cestuis, escheats to tbe State both at common law and under tbe provisions of sections 7381 et seq., Revised Statutes 1899. Middleton v. Spicer, 1 Bro. C. C. 201.</p>