Volume 102 — Missouri Appeal Reports

— How. Frcmk R, Dearing, Judge. (1) It is well-settled law that if the finding of facts is clearly against the evidence, or that there is no evidence to support the finding, the appellate court will reverse that finding. The valued-policy law applies only to real estate. R. S. 1899, sec. 7970. (2) An inspection of the record will show that there was not a scintilla of evidence that the personal property was worth $200 or any other amount.

Charles Circuit Court. — How. E. M. Hughes, Judge. (1) Among the several kinds of “privileged communications,” a common definition of the one here claimed is “where the publisher acted in good faith, in discharge of a public or private duty, legal or moral, or in the prosecution of his own rights. ’ ’ Hancock v. Blackwell, 139 Mo. 451; Hess v. Ganz, 90 Mo. App. 448; Meysenberg v. Englike, 18 Mo.

<p>Appeal from Audrain Circuit Court. — Row. E. M. Hughes, Judge.</p>

— How. Geo. W. Thornberry, Judge. (1) The record clearly shows that the railroad to which the plaintiff paid his subscription was a competing line of railroad with the defendant St. Louis and San Francisco railroad, and that the latter company leased the line to which the subscription was paid.

<p>1. Criminal Law: FORMER, JEOPARDY: SPECIAL PLEA AND MERITS SUBMITTED TOGETHER: WAIVER. The plea.of former jeopardy was tried at the request of defendant with the merits of the ease, and submitted to a jury by an instruction authorizing .it to return a general verdict of not guilty, should they find that such plea was sustained. By this course defendant waived any right he may have had to a separate verdict on such plea.</p> <p>2. -: INFORMATION SUFFICIENT: OBSTRUCTING, AND MAINTENANCE OF THE OBSTRUCTION. The defendant was charged in the information with obstructing a highway on a certain day by keeping a wire fence on it, and by continually obstructing it thereafter by maintaining such fence on it. This was a sufficient charge of obstructing the highway as distinguished from the maintenance of an obstruction in the highway, so as to justify a conviction for obstructing the same.</p>

<p>Will, Action to Establish: TWO WILLS: FIRST WAS PROBATED, THE LAST REJECTED: ATTESTATION, SUFFICIENT: R. S. 1899, SEC. 4604, CONSTRUED. In a suit to establish a will, the evidence showed that the testatrix made two wills not quite a month apart; that they were both presented for probate and the first was probated, while the last was rejected. Plaintiff was the beneficiary in the last will and made out a clear prima facie ease that the testatrix was of sound mind and memory at the time of making the will. It is contended by the defendant that the will was not properly attested, the two witnesses which attested it not having read the will and the testatrix refusing to permit them to read it, although both understood that the paper they were signing, was a will. Held, that under Revised Statutes 1899, section 4604, it was not essential that the witnesses should know the contents of the will, so they understood that the instrument they were signing, was a will.</p>

<p>Jurisdiction: HOMESTEAD, ADMEASUREMENT THEREOF: SUPREME COURT. Motion to quash the levy of an execution on land, on the ground that it is exempt as a homestead, was sustained. Jurisdiction in such proceedings, is denied the Courts of Appeals, for the reason that they involve title to real estate.</p>

Henry G. Riley, Judge. (1) The finding and judgment of the court are not responsive to the issues raised by the pleading, and is not such a judgment under the pleading and evidence as a court of equity should have rendered. The answers of the respondent setting up an equitable defense and asking for affirmative relief converted the case into one of equity. McCollum v. Boughton, 132 Mo. .620; Wendover v. Baker, 121 Mo. 273.

— Non. E. M. Hughes, Judge. (1) The ease at bar is one to enforce a penalty. In construing an ordinance, in a case of this kind, its meaning should not be expanded so as to subject anyone to a penal liability not fairly and reasonably within its language, St. Charles v. Hackman, 133 Mo. 634; City of Joplin v. Leckie, 78 Mo. App. 8.

<p>1. Infants: APPOINTMENT OP GUARDIAN. Under Revised Statutes 1899, sections 558, 3929, the procedure to he pursued when an infant is sued, either before a justice of the peace or in the circuit court, is the appointment of a guardian to represent him, and after service of process, the cause can not regularly progress until the appointment is made.</p> <p>2. -: NOT A QUESTION POR JURY: VOIDABLE JUDGMENT. When an infant moves for a guardian on the ground of his minority, it becomes the duty of the justice to grant his request instead of referring to a jury the question of his non-age; and the judgment rendered upon such irregular procedure is voidable in a direct proceeding for that purpose.</p> <p>3. -: PROCEEDING TO SET ASIDE JUDGMENT: DIRECT ATTACK. A proceeding in a circuit court to set aside a judgment of a justice court against an infant, brought only against the plaintiff in the original action, is a direct attack on such judgment.</p> <p>4. -: JUDGMENT AGAINST, SET ASIDE WHEN GUARDIAN NOT APPOINTED. A judgment rendered against an infant in disregard of the statutes requiring á guardian to be appointed for him, ought to be annulled by proof of that fact alone, and without showing a meritorious defense.</p>

Louis City Circuit Court. — lion. Wm. Zachritz, Judge. (1) Admission by insurer of liability for tbe loss operates as waiver of all proof of said loss. Funk v. Ins .Co., 66 Mo. App. 513; Cobn v. Ins. Co., 62 Mo. App. 271; Landrum v. Ins. Co., 68 Mo. App. 339. (2) Entering into an arbitration agreement between insurer and insured, looking toward settlement of the loss, likewise operates as waiver of all proof of said loss. Murphy v; Ins. Co., 70 Mo. App. 78.

<p>Appeal from Lawrence Circuit Court. — No». H. C. Pepper, Judge.</p> <p>(1) It was the imperative duty of the court, under section 695, Revised Statutes 1899, to make a finding of all pf the issuable facts presented by the pleadings and evidence; also of the law applicable to the issuable facts. Unless the court has so found, the case should be reversed and remanded for new trial. Ins. Co. v. Tribble, 86 Mo. App. 546; Cochran v. Thomas, 131 Mo. 278; Nichols v. Carter, 49 Mo". App. 401; Bailey v. Emerson, 87 Mo. App. 225. (2) When the finding of facts is not supported by the evidence, it may be assailed in the appellate court, if the evidence is preserved by a bill of exceptions. Preman v. Hemenway, 75 Mo. App. 621; Nichols v. Carter, 49 Mo. App. 401. (3) The court should have passed on the question, which was presented for consideration by the evidence, whether or not the moneys deposited in the Stotts City Bank were the moneys of defendant hank, or of O’Kelley, and whether defendant received the proceeds of the two checks in issue. (4) The evidence unquestionably shows that every dollar placed by 0 ’Kelley in plaintiff bank was checked out and placed to the credit of defendant in the Farmers’ Bank of Mt. Vernon. It was the duty of the defendant to either honor and pay the checks sued on, or refund the money which plaintiff paid out on 0’Kelley’s checks, and which went to the credit of defendant in the Farmers’ Bank. National Bank v. Lumber Co., 54 Mo. App. 327; National Bank v. Lumber Co., 60 Mo. App. 255. (5) Defendant, through its president Mr. Miller, in settling and balancing its account with the Farmers’ Bank, and agreeing to balance 0’Kelley’s account with plaintiff bank, ratified the acts of its agent, 0 ’Kelley, and will not be heard to complain of want of authority.</p> <p>(1) Appellant’s request that the court should state its conclusions of fact separately in writing, was made after the judgment of the court in favor of defendant was announced, and too late. The purported finding of fact is no part of the record, for that reason, and will not be considered by this court. “A proper construction of the section (695, now R. S. 1899) requires . . . and it necessarily follows that the request for such findings must precede the judgment.” Hamilton v. Armstrong, 120 Mo. 614; Young v. Stephens, 66 Mo. App. 226; Butts v. Ruby, 85 Mo. App. 405; Loewen v. Forsee, 137 Mo. 39. (2) “The rendition and the entry of a judgment are entirely different things. The first is a purely judicial act of the court alone and must be first in order of time, while the entry is merely evidence that a judgment has been rendered and is merely a ministerial act.” 18 Enc. PI. and Prac., 430; Fontaine v. Hudson, 93 Mo. 62; Gray v. Palmer, 28 Cal. 416. (3) “Conclusions of fact” found by the court, do not cover all the issues. This being a case at law, tried to the court, and no declaration of law having been asked, and there being evidence to support the special- finding, there is nothing for this court to review. Sutter v. Raeder, 149 Mo. 1. c. 307; Railway v. News Co., 151 Mo. 389; Lumber Co. v. Mining Co., 78 Mo. App. 681. (4) No authority, direct or implied, was shown by the evidence, in 0’Kelley, as agent of defendant in the lumber business to check out funds once deposited in the Farmers’ Bank to credit of the defendant, other than to remit the same to defendant; and the drawing by him of the cheeks in suit and the depositing of the same with plaintiff in his own name, was a conversion and embezzlement of such fund. Thereafter any return of any part of the fund, was but paying a debt he owed defendant. The nature of 0’Kelley’s transactions prove beyond doubt that they were but a method to conceal his shortage to his principal. State ex rel. v. Elliott, 157 Mo. 619; Bank v. Lowell, 109 Mass. 214; Bank v. South Hadley, 128 Mass. 503; Craft v. Railroad, 22 N. E. 920; Sims v. U. S. Trust Co., 9 N. E. 606; Nat. Bank v. Ins. Co., 103 U. S. 783; Edwards v. Dooley, 24 N. E. 829; Bickford v. Menier, 14 N. E. 438; Evangelical Synod v. Schoeneich, 143 Mo. 656. (5) Plaintiff’s cashier knew the line of business in which defendant was engaged, and the scope of O’Kelley’s power as its agent, and the burden fell on plaintiff to show that O ’Kelley as such agent had authority to draw the checks. Johnston v. Hurley, 115 Mo. 519 ; Bank v. Hogan, 47 Mo. 474; Plotel Co. v. Furniture Co., 73 Mo. App. 138; Brosnahan v. Best Brewing Co., 26 Mo. App. 386; Mechanics Bank v. Schaumberg, 38 Mo'. 228; Gerard v. McCormick, 29 N. E. 115; National Bank v. Ins. Co., 104 U. S. 54; Merchants Bank v. Bergen, 115 U. S. 391; United States v. City Bank of Columbus, 21 Howard 353; Floyd Acceptances, • 7 "Wallace 676. (6) There could be no ratification of 0’Kelley’s act in drawing the checks, by defendant or by Miller as its general manager, because at the time he had the conversations in evidence with plaintiff’s cashier, it is unquestionable that he had no knowledge of the existence of either of the checks in suit. Pitts v. Steele Mercantile Co., 75 Mo. App. 221; Cravens v. Grillilan, 63 Mo. 33; State ex rel. v. Findley, 101 Mo. 377; Jones v. Williams, 139 Mo. 77. Ratification can be effectual only when the acts were done on account of the principal. Story on Agency, see. 251a; Planing Mill v. Brundage, 25 Mo. App. 273; Herd v. Bank, 66 Mo-. App. 646.</p>

<p>1. Negligence: TESTIMONY OPPOSED BY PHYSICAL FACTS. Where the testimony of plaintiff, in an action for damages for injuries received by collision with a street car, to the effect that, before driving upon the track, he looked and could not see the approaching car, is opposed by undisputed physical facts which show that he could have seen it if he had looked, the ease should be withdrawn from the consideration of the jury.</p> <p>2. —--: DUTY OF MOTORMAN. If the motorman in charge of the ear, by keeping vigilant watch ahead, could have seen plaintiff’s perilous position in time to have stopped the car and avoided the collision, the company is liable notwithstanding the plaintiff drove upon the track without looking or listening.</p> <p>3. -: CONTRIBUTORY: COMPARATIVE NEGLIGENCE. When both parties are guilty of negligence, plaintiff is not entitled to recover for the reason that there is no such thing as comparative negligence. Where plaintiff, without looking or listening, drives upon the track so near to an approaching ear that it could not be stopped in time to avoid the collision, he is not entitled to recover, though the motorman failed to sound the gong.</p> <p>4. '-r-: -: INSTRUCTIONS. Where the plaintiff testifies that he looked and listened before driving upon the track, and the physical facts show conclusively that if ,he looked he saw the ear and knew it was approaching, and continued on his course without again looking, it is error to leave out of view this phase of the evidence in giving instructions to the jury, and authorize a recovery upon the assumption that he was guilty of no contributory negligence, provided he used due diligence in getting over the track.</p> <p>5. -: -: INSTRUCTIONS. An instruction to the jury that, if the motorman could have avoided the accident by ordinary care, “the negligence of the plaintiff was no defense,” is too strong, and should be qualified by telling the jury that the plaintiff’s negligence was no defense unless it directly or proximately contributed to the injury. (Goode, J., concurring.)</p>

<p>Appeal from St. Louis City Circuit Court. — Row. Warwick Hough, Judge.</p> <p>(1) Plaintiffs were occupants of the highway under lawful authority. As such they possessed a qualified ownership in the surface of the highway to the extent occupied by them. McQuillin, Municipal Code, sec. 1087; State ex rel. v. St. Louis, 145 Mo. 551; Joyce-on Electric Law, secs. 420, 436; Elliott on Roads and Streets, secs. 44a, 810; Tel. Co. v. Baltimore (Md.), 43-Atl. 784; Town of Troy v. Railroad, 23 N. H. 83; Bidleman v. State, 110 N. Y. 232; Railroad v. Greenup Co., 12' Ky. L; R. 46; Railroad v. Whiteby-Co.,95 Ky. 215 ;Town of Pierpont v. Loveless, 4 Hun (N. Y.) 696; Lawrence Co. v. Railroad, 81 Ky. 225; Milburn v. Fowler, 27 Hun-358. (2) Plaintiffs, by reason of their lawful ownership of this manhole cover in the surface of the highway, could maintain an action for injuries maliciously or negligently inflicted upon it. Gas Co. v. Gas- Co., 89 N. Y. 493; Gaslight Co. v. Gaslight Co., 10 Exchequer 38; Moll v. Piehaway, 14 111. App. 343; Gas Co. v. Pope, 49 L. T. N. S. 798; 15 Am. and Eng. Ency. Law, 507;. Sewall’s Falls Bridge v. Fish, 23 N. H. 172; Hoohsejt v. Amosheag Mfg. Co., 44 N. H. 105. (3) It is negligence to move through the streets or along a highway an unusual or extraordinary object or load, without tahing reasonable precautions to' prevent the injury of property which is lawfully in the highway. Gregory v. Adams, 14 Gray 242; Richardson v. Royalton, 5 Yt. 580; Wabash v. Carver (Ind.), 13 L. R. A. 851; Medina v. Perhins, 48 Mich. 67; Chulow v. McClelland, 151 Pa,. St. 583; MeCormich v. Washington Twp., 112 Pa. St. 185; Coulter v. Township, 164 Pa. St. 543; Angelí on Highways, sec. 287; Wilson v. Granby, 47 Conn. 59; Yordy v. Marshall Co., 80 Iowa 405; Com’rs v. Chipps (Ind.), 16 L. R. A. 228; Board of Com’rs v. Coffman (Ohio), 48 L. R. A. 455; Clapp v. Town of Ellington, 20 N. Y. 412. Edgerly’s Case, 3 Salh 183, J. March 135; Commonwealth v. Allen, 148 Pa. St. 358,16 L. R. A. 148; Railway v. Morris, 8 Pliila. 304; Gaslight & Coke Co. v. Vestry St. Mary Abbotts, 15 Q. B. D.; Tel. Co. v. Dexheimer, 14 N. J. L. J. 295; Millville Traction Co. v. Goodwin, 53 N. J. Eq. 448; Dickson v. El. Light Co., 53 III. 379; City of Eureka v. Wilson, 15 Utah 53; Railroad v. Dollery, 12 Ont. Ap. 679; Williams v. Railway, 112 Ind. 71; Keasby on Electric Wires, sec. 64; Fullerton v. Eordyce, 144 Mo. 528; Ileib v. Big Plats, 73 N. Y. S. 86; Vandewater v. Wappinger, 74 N. Y. S. 699; ITill v. Thomas (1893), 2 Q. B. 333; Etherly Co. v. Auk-land (1894), 1 Q. B. 37; Kent Co. Council v. Vidler (1895), 1 Q. B. 448; .Brown v. N. Y. Gas L. Co., Anthon N. P. 351; Wirrall Highway Bd. v. Newell (1895), 1 b)B. 827; Kent Co. Council v. Lord Gerrard (1897), App. Gas. 633; Regina v. Ellis, 8 Q. B. D. 466; Lord Aukland v. Lucas, 5 C. P. D. 211; Dexter v. Bridge Co., 79 Me.. 563.</p> <p>(1) Plaintiffs are occupants of the highway under lawful authority, but such occupation does not give them ownership, qualified or otherwise in the surface of the highway. Telegraph Co. v. Light Co., 46 Mo. App. 135. (2) A teamster, in this State, is not required to use one side of the road to the exclusion of the other. Yore v. Transfer Co., 147 Mo. 679. Where an abutting owner has the privilege of placing something in or by the sidewalk which may serve as a convenience to his premises, it is his duty to see that the place thus used is maintained in a safe condition. Maneuso v. Kansas City, 74 M.o. App. 142; Matthews v. DeGroff, 13 App. Div. (N. Y. S. C.) 356. (3) A cover becomes a part of the highway or walk and must be as secure for the wayfarer as the walk itself. Whalen v. Gloucester, 4 Hun 27.</p>

Louis City Circuit Court. — Row. S. P. Spencer, Judge. (1) The objection to the introduction of any evidence under the second count of the petition, which was identical with the first count, save that the first was for damage to property, and the second for personal injury, both growing out of the same occurrence, should have been sustained. Trammell v. Vaughan, 158 Mo. 214. (2) The demurrer to the evidence should have been sustained.

<p>1. Contract: BREACH: DAMAGES. In an action for breach of parol lease, wherein lessor agreed to repair and maintain fences inclosing leased premises so as to be secure for plaintiff’s stock, the admission of evidence to prove, and an instruction permitting recovery for, an indemnity paid by plaintiff to a third party for damages to the latter’s crops, by fugitive cattle from the leased premises, was proper.</p> <p>2. -: -: NOTICE TO REPAIR. Where plaintiff alleged and testified, and the jury under instruction so found by their verdict, that defendant warranted the security of the fence while plaintiff’s cattle were upon the pasture, no notice to repair is necessary.</p>

<p>1. Appellate Practice: REVIEW OF ERRORS AGAINST SUCCESSFUL PARTY. Where the plaintiff appeals from a judgment in her favor, which she thinks insufficient in amount, and the record shows she was not entitled to a verdict at all, the appellate court is debarred from reviewing the rulings of the trial court against her.</p> <p>2. -: NO ISSUE WHERE EVIDENCE EXCLUDED. Where there are two counterclaims offered by defendant, and no evidence is offered in support of one and the other is excluded from the consideration of the jury by instruction, there is no issue upon such counterclaims which could form a basis for error against the plaintiff.</p>

<p>1. Probate Practice: AFFIDAVIT TO CLAIM. Where the demand presented for allowance in the probate court is a promissory note with credits indorsed thereon, with an affidavit that all just credits had been given on the note, and the balance claimed was justly due, it substantially met the requirement of section 195, Revised Statutes 1899, without stating in the affidavit the amount due on said note.</p> <p>2. -: -: NOTICE OF CLAIM. Under Revised Statutes 1899, section 197, a claimant shall deliver to the executor or administrator a wi'itten notice containing a copy of the instrument of writing or account on which .his claim is founded. A notice served without such instrument is insufficient, but this notice may be waived by the executor or administrator appearing in court when the claim is presented and allowed.</p> <p>3. -:--: LIMITATIONS. If no exhibition of a demand is made nor suit brought on it within two years from grant of letters, it will be forever barred.</p> <p>4.--: -: -. If suit is brought on a demand either in the probate or circuit court and the administrator is served with notice or summons, or voluntarily appears in either court and enters his appearance within two years, then said claim will not be barred, although it was not exhibited to him before suit was commenced.</p> <p>5. Appellate Practice: FAILURE TO MARK BILL OF EXCEPTIONS “FILED.” Where appellant in due time made out and filed his bill of exceptions, the failure of the clerk to make an entry on his minutes, showing the filing of the bill of exceptions, will not be taken advantage of against appellant.</p> <p>6. Evidence: WITNESS: ONE PARTY DEAD THE OTHER INCOMPETENT TO TESTIFY. Where one party to a contract or cause of action in issue is dead, neither the other party nor his agent with whom the contract or transaction was had, is a competent witness.</p> <p>7. -: AGENT: CLERICAL ACT. Where payments were made personally to claimant and the indorsements were macte on the note executed by decedent, by a third person at the request of claimant, such act of indorsement was a clerical performance and not as a a general agent,</p>

— Hon. Elliott M. Hughes, Judge. (1) The plaintiff was guilty of contemporaneous, concurrent, contributory negligence, which under the law governing this class of cases, entitled the defendant to a verdict, and defendant’s peremptory instruction directing the jury to find a verdict for defendant, requested at the close of the whole of the evidence in the case, should have been given. 1 Thompson Neg. sec. 237; Beach Contrib. Neg.

<p>Practice: COURT RULE: BREACH OE ORAL STIPULATIONS. A rule of the circuit court requiring all agreements between the parties or their attorneys concerning a pending case to be in writing and filed in such case, before such agreement will be recognized, or enforced by the court, is not intended to shield a guilty party to an oral contract, made in good faith, and does not apply where the opposing party has acted and relied on such oral contract or representation.</p>

Louis City Circuit Court. — How. Franklin Ferriss, Judge. (1) The court erred in giving the first declaration of law, at the request of the interpleader, as to what constituted a waiver by th© plaintiff of payment in cash on delivery of the ore.

Louis City Circuit Court. — How. S. P. Spencer, Judge. It is error for the trial court to refuse a new trial when the preponderance of the evidence against the verdict is so strong as to raise a presumption of prejudice, corruption or gross ignorance on the part of the jury. Walton v. Railway, 49 Mo. App. 620; Spohr v. Railway, 87 Mo. 74; Lyonberger v. Pohlman, 16 Mo. App. 392; Friesz v. Fallon, 24 Mo. App. 439.

Louis City Circuit Court. — No». S. P. Spencer, Judge. (1) Before the statute, attorneys had no lien. Frissell v. Haile, 18 Mo. 18; Roberts v. Nelson, 22 Mo. App. 28; Alexander v. Railroad, 54 Mo. App. 66; Grulick v. Pluntley, 144 Mo. 241. (2) Under the statute; the lien is only upon the claim, or cause of action, or upon the proceeds of any settlement. Laws 1901, p. 46, sec. 2.

<p>Appeal from St. Louis City Circuit Court. — No». S. P. Spencer, Judge.</p>

Louis City Circuit Court. — Non. D. D. Fisher, Judge. (1) The plaintiff was guilty of contributory negligence as a matter of law in failing to look back from time to time while he was driving along the track. Moore v. Railway, 75 S. W. 672; Daives v. Railway, 159 Mo. 1; Adolph v. Eailway, 76 N. Y. 530; Winch v. Eailway, 33 N. Y. Snpp. 615; Maxey v. Eailway, 113 Mo. 1; Vogg.v. Eailway, 138 Mo. 172; Winter v. Eailway, 8 Miscl.

Louis City Circuit Court. — Eon. Franhlm Ferriss, Judge. (1) The demurrer to the evidence should have been sustained, (a) No causal connection was shown between the act of negligence charged and the plaintiffs injury. Killian v. Railway, 86 Mo. App. 477;. Lore v. Mfg. Co., 160 Mo. 626; Barrett v. St. Joseph, 53 Mo. 290; Stanly v. Railway, 114 Mo. 606; Waller v.. Railway, 59 Mo. App. 410; Hicks v. Railway, 46 Mo. App. 304; Reed v. Railway, 50 Mo.

Louis City Circuit Court.— Mon. D. D. Fisher, Judge. (1) The demurrer to the plaintiff’s evidence should have been sustained. The great and overwhelming preponderance of the evidence was that the car was neither stopped nor slowed down for the purpose of enabling the plaintiff to board the car, but plaintiff tried the experiment of boarding a moving car, notwithstanding his age and the fact that the rear platform was crowded, and such experiment proved a failure.

Louis City Circuit Court. — Eon. D. D. Fisher, Judge. (1) It was erroneous for the court to permit testimony of injuries to plaintiff’s sexual organs, for the reason that such injury had not been pleaded. Muth v. Railway, 87 Mo-. App. 422, and cases cited in the opinion of the court in that ease. Edwards v. Railway, 79 Mo. App. 257; Harper v. Railway, 70 Mo. App. 604.

Louis City Circuit Court. — lion. D. D. Fisher, Judge. (1) Defendant’s refused instruction No. 1-A, should have been given. The evidence did not correspond with nor support the allegations of the complaint. Raming v. Railroad, 157 Mo. 477; Hite v. Railroad, 130 Mo. 132; Waldhier v. Railrc-id, 71 Mo. 514; Ensworth v. Barton, 60 Mo. 511; Harris v. Railroad, 37 Mo. 307. (2) This court has always held that you can not state one cause of action and recover upon another.

Louis City Circuit Court . — Hon. Warwick Hough, Judge. (1) The specific negligence pleaded in. the petition was not that the defendant failed to stop the car a reasonable length of time for plaintiff to alight, but that “defendant’s agents and servants in charge'of the car negligently and carelessly caused said car to be suddenly started forward, and thereby threw plaintiff from said car upon the street. ’ ’ This charge is entirely unsupported by the evidence.

<p>Appeal from St. Louis City Circuit Court. — How. Horatio D. Wood, Judge.</p> <p>(1) Plaintiff’s right to sue must be set out in the petition by proper averments. And a petition without this is fatally defective. State to use v. Matson, 38 Mo. 49; Wolff v.'Ward, 104 Mo. 157. (2) The body of the petition must show the capacity in which plaintiff sues. It must show not only his capacity and right to sue, but his right to hold defendant in the character to be sued by 'him. Edwards v. Bartell, 68 Mo. 581. (3) The proper authority and capacity to sue must be alleged in the body of the petition. State to use v. Patton, 42 Mo. 530; Fuggle v. Hobbs, 42 Mo. 537.</p> <p>(1) Promises made by way of voluntary subscription are valid if the promisee has expended money or incurred other liability relying on the subscription and before it is withdrawn. Orphans Home v. Sharp, 6 Mo. App. 150; Swain v. Hill, 30 Mo. App. 436; Davis v. Johnson, 49 Mr. App. 240; Koch v. Lay, 38 Mo. 147; Westminster College v. Gamble, 42 Mo. 411; Pitt v. Gentle, 49 Mo. 74. (2) It is not necessary to file the original subscription paper with the petition. Workman v. Campbell, 46 Mo. 305; Hannibal Plank Road Co. v. Robinson, 27 Mo. 396. (3) If it were required to file the original subscription paper with the petition, the defect was cured by filing it in the circuit court. St. .Louis Trust Co. v. American R. E. & Inv. Co., 82 Mo. App. 260; Rechnitzer v. St. Louis Candy Co., 82 Mo. App. 311.</p> <p>STATEMENT.</p> <p>On February 25, 1901, the following agreement in writing was entered into:</p> <p>“St. Louis, Feb. 25, 1901.</p> <p>“The undersigned hereby agree to pay John P. Heinrich, treasurer, monthly, from March 1, 1901, the amounts set after our respective names. This money to be paid out by him in defraying the cost and incidental expenses to investigating, detecting and prosecuting cases of fraud perpetrated by any party or parties in connection with the coal trade. We or any one of us reserve the right to cancel the above as far as any one of us is concerned by giving said Heinrich thirty days ’ notice in writing of our desire to do so.</p> <p>“Maguire Coal Company............$10.00</p> <p>Gartside Coal Company.............. 10.00</p> <p>Missouri & Illinois Coal Company .... 10.00</p> <p>Lumaghi Coal Company............. 10.00</p> <p>Sylvester Coal Company, per C. J, M. 10.00</p> <p>The Citizens Coal Mining Company... 10.00”</p> <p>- Defendant paid its subscription of $10 to Heinrich for the months of March and April, 1901, but failed and refused to pay thereafter, and on July 20, 1901, gave Heinrich written notice that it cancelled its subscription.</p> <p>The suit was begun before a justice of the peace to recover the subscription of defendant due for the months of May, June, July, and August. Plaintiff filed a petition in the justice’s court setting out his cause of action in full, but did not file the subscription paper. On trial before the justice plaintiff recovered judgment from which defendant appealed to the circuit court. On a trial de novo in the latter court to the judge sitting as a jury, plaintiff again recovered judgment from which the defendant duly appealed to this court.</p>

<p>Appeal from St. Louis City Circuit Court. — How. Dcm~ iél G. Taylor, Judge.</p> <p>(1) The terms of statute make the fire escape a part of the building itself. It is therefore the duty of the owner to erect it where necessary. Under similar statutes the courts have held that it was the duty of the owner or owners to erect the fire escapes — even where the building was leased in its entirely for a term of years. Landgra-f v. Kuh, 188 HI. 490; Abraham v. Bank, 16 N. Y. St. 750; McLaughlin v. Armfield, 58 Hun 376; Weily v. Mulledy, 78 N. Y. 310; Pauly v. Steam Gauge and Lantern Company, 131 N. Y. 90; Gorman v. McArdle, 67 Hun 484; Huda v. American Glucose Company, 154 N. Y. 474; Schwander v. Birge, 46 Hnn 68; Sewell v. Moore, 166 Pa. St. 570; McAlpin v. Powell, 70 N. Y. 126; In re Fire Escapes, 2 Pa. Dist., 298; Rose v. King, 49 Ohio St. 213; Jetter v. N. Y. H. R. Co., 2 Abb. 458. (2) Under the general law of landlord and tenant, the exterior fire escape is snch an improvement as the landlord is called upon to make. 11 Wood on Landlord and Tenant (2 Ed.), sec. 381, p. 841; 11 Shearman & Redfield on Negligence (5 Ed.), sec. 702a; 1 McAdam on Landlord and Tenant (3 Ed.), p. 440; Landgraf v. Kuh, 189 111. 490; Abraham v. Bank, 16 N. Y. St. 750; McLaughlin v. Armfield, 58 Hun 376.</p> <p>(1) There is no duty under the common law upon any one to equip a building with fire escapes. Pauley v. Steam Gauge & Lantern Co., 131 N. Y. 90; Jones v. Granite Mills, 126 Mass. 84;. Keith v. Granite Mills, 126 Mass. 90; Schmalzreid v. White, 97 Tenn. 36; 13 Am. and Eng. Ency. of Law (2 Ed.), p. 82, and note 1. (2) Section 9037 of the Revised Statutes of 1899 has no application to this case. (3) Under the statute of Missouri, the duty of providing outside fire escapes is imposed only upon the person who has the control, possession and occupancy of the building. Laws 1901, p. 219. (a) Statutes are not to be construed with reference to the common law. Endlich on Interpretation of Statutes, sec. 127. (b) A penal statute is to be construed strictly. Huies v. Railroad, 95 N. C. 434. (4) The same rule of strict construction applies to statutes creating rights or fixing liabilities where none would otherwise exist, and to all statutes in derogation of the common law. Wilbur v. Crane, 13 Pick. 284; Rogers v. Currier, 13 Gray 139; West v. Railroad, 63 111. 545; Townsend v. Wilbur, 88 111. 197; Williams v. Vanderbilt, 145 111. 238; Dean v. Railroad, 119 N. Y. 540; Sutherland on Construction of Statutes, 374. (5) The liability is several and not joint, and is imposed upon only one of the classes enumerated in the act. Schott v. Harvey, 105 Pa. St. 122. (6) At common law the duty to keep premises in a safe condition is upon the person in occupancy and control. Murray v. Richard, 52 Hun 613; Keating v. Stevenson, 21 N. Y. App.; 47 N. Y. 837; Railroad v. Walker, 45 Ohio St. 577; Kent v. Rogers, 44 Conn. 291; Proctor v. Railroad, 64 Mo. 112; Lee v. Smith, 42 Ohio St. 459; Burns v. Fuchs, 28 Mo. App. 279; Gibson v. Perry, 29 Mo. 247; O’Neil v. Flanagan, 64 Mo. App. 87. (7) The act can not and is not intended to apply to one who can not comply with its requirements. Maker v. Slater Mill & Powder Co., 1 N. E. 176. (8) Section 4 of the act itself indicates that it was the person in possession or control of buildings erected prior to the passage of the act upon whom the duty of erecting fire escapes was imposed. Wiley v. Mullebv, 78 N. Y. 310; Pauley v. Steam Gauge and Lantern Co., 131 N. Y. 90; Gorman v. McArdle, 67 Hun 484; Huda v. American Glucose Co., 154 N. Y. 474; McLaughlin v. Armfield, 58 Hun 376; Grant v. Slater Mill & Powder Co., 14 R. I. 380; McCulloch v. Ayer, 96 Fed. 178; Landgraf v. Kuh, 188 111. 484.</p> <p>STATEMENT.</p> <p>Defendants are the owners in fee of lot 38 and part of lot 37, city block 986, city of St. Louis, upon which they, prior to July 25,1899, erected two dwelling houses known as Nos. 2700 and 2702 Olive street. On July 25, 3899, they leased the buildings to William Gillham and Catherine Gillham for a term of ten years to begin September .1, 1899. The buildings were leased as one building to be used and occupied as a hotel and the lease provided that the buildings were not to be used or occupied for any other purpose without the written assent of the lessors, their heirs or assigns. It further provided that “all repairs deemed necessary by the lessees to be made at the expense' of said lessees, with the consent of said lessors and not otherwise.” The said lessors, their heirs or assigns were, at all reasonable times and hours, to have the right to enter upon and inspect the state and condition of said premises.. The lessees took possession of thé premises under the lease on September 1,1899, and from said date up to and including the ninth of February, 1902, engaged in the business of and were conducting a hotel or lodging-house in said premises as tenants under the lease.</p> <p>On the ninth of February, 1902, Walter Johnson, plaintiff, was a lodger in the house and occupied an outside room on the third floor. About two o’clock on the morning of February 9, 1902, a fire broke out in the premises and Johnson made an effort to make his escape by the only pair of stairs in the premises leading from the third story to the ground floor, but was cut off from the stairway by the fire. The premises were unprovided with any outside fire escapes and to save himself from the flames, Johnson was compelled to jump to the pavement, a distance of about thirty feet. As a result of the jump he suffered fractures of the bones of his legs and was otherwise injured. To recover for these injuries this suit was brought.</p> <p>The petition counts on the failure and negligence of the defendants as owners in fee of the premises to provide exterior fire escapes as required by. an act of the Legislature approved March 27, 1901 (Laws 1901, p. 219.) Defendants denied that the obligation to provide an exterior fire escape was on them, and at the close of plaintiff’s evidence moved for an instruction that plaintiff could not recover. The court denied the instruction and sent the ease to the jury who returned a verdict for plaintiff and assessed his damages at $3,500. A motion for a new trial was filed by defendants which the court sustained on the ground that it committed error in refusing to grant defendant’s instruction that plaintiff could not recover. From the order sustaining the motion for new trial plaintiff appealed.</p>

<p>Appeal from Bent Circuit Court. — Row. L. B. Wood-side, Judge.</p>

Louis City Circuit Court. — No». D. D. Fisher, Judge. (1) Such testimony as that given by the plaintiff’s driver, in face of the evidence and the physical facts of the case, has no probative force, and does not raise a question of fact to be submitted to a jury. “It will be disregarded as testimony by the court. ’ ’ Hook v. Railroad, 162 Mo. 581; Kelsey v. Railroad, 129 Mo. 362; Hayden v. Railroad, 124 Mo. 573; Payne v. Railroad, 136 Mo. 575; Baker v. Railroad, 122 Mo. 589;…

<p>Appeal from St. Louis City Circuit Court. — Hon. Frcmklm Ferriss, Judge.</p> <p>(1) When defendant accepted plaintiff’s employment, it contracted that it would use due and ordinary care in the performance of its duties. Chase v. Heany, 70 111. 268; Taylor v. Williams, 2 Colo. App. 559; Heinsen v. Lamb, 117 111. 519. (2) It being the duty of the defendant to search for judgments, he is liable for damages incurred by a purchaser of land through a mistake or omission in a certificate or other instrument of title that he furnishes to said purchaser. Gilmore v. Hovey, 26 Mo. 280; Zeigler v. Commonwealth, 12 Pa. St. 227. (3) It is enough if for a compensation he undertakes to examine into the condition of the title, gives to his employer a true statement of the condition of the title, and does, in fact, make to him a false and misleading statement, on which his employer relies and is injured by such reliance. Sehade v. Gehner, 133 Mo. 252; Warvell’s Abstract of Title, see. 28, chap. 32. (4) If the examiner fails to bring to the discharge of his duties he assumes the ordinary legal knowledge and skill possessed by persons engaged in the business of examining titles, or has failed to discharge the duties with ordinary and reasonable diligence, care and prudence, he will be guilty of negligence and liable to the client for damages he may have sustained by reason thereof. (5) In order to rely on.the instrument it would not be necessary that plaintiff should read the instrument furnished to him, when the same had been commented upon and explained to him by defendant’s expert examiner of title. He relied upon the instrument, notwithstanding the fact that he did not read it. It was read and explained to him, and if he himself had read it the judgment would not have appeared therein. Nicol v. Young, 68 Mo. App. 448 (455).</p> <p>(1) There was a total failure of proof of the negligence alleged. (2) In actions for negligence the evidence should correspond to the specific act of negligence charged. Hartv y. Railroad, 95 Mo. 368; Hite v. Railroad, 130 Mo. 136. (3) Nor can there be a recovery for any other act. Crawford v. Aultman & Go., 139 Mo. 262; Chitty v. Railroad, 148 Mo. 75; Peary v. Railroad, 162 Mo. 96. (4) And this applies to actions originating in justices’ courts. Turner v. McCook, 97 Mo. App. 196.</p>

<p>1. Damages: ASSAULT ON PASSENGER: INSTRUCTIONS. In an action for assault by a conductor, an instruction -which comprehends fully all the facts which plaintiff relied on, and which entitles him to a verdict and is supported by the evidence offered by him, is not erroneous because it ignores defendant’s right of self-defense, which is fully explained in other instructions.</p> <p>2. -: -: ELEMENT OE DAMAGES. If a feeling of humiliation and disgrace caused by an assault is fairly inferable from the evidence, it is an element of actual damages to be submitted to the jury. .</p> <p>3. Appellate Practice: STATUTORY DAMAGES. It not appearing that the appeal was taken solely for vexation and delay, though without merit, the statutory teu per cent damages will not be allowed against appellant.</p>

<p>1. Contributory Negligence: QUESTION OF MIXED LAW AND FACT. Courts will not, as a matter of law, declare a person guilty of contributory negligence who attempts to get off a car while it is moving slowly. The question of contributory negligence in such eases is one of mixed law and fact, to be determined by the jury under proper instructions.</p> <p>2. -: PASSENGER ALIGHTING FROM MOVING CAR. When a passenger on an electric street car touches the electric button to warn the motorman in charge, of his desire to get off, and the car slows down in response to the signal, he has a right to assume that the car will continue to slow until he can get off, and that it will not accelerate its speed before he is off.</p> <p>3. Electric Car: SPEED OP. It is not error in an instrucUon to the jury to- describe an electric ear as “moving slowly,” when it is going at the rate of three- miles an hour.</p> <p>4. Verdict: EXCESSIVE. A verdict for $2,000 for persona] injuries, where the plaintiff, a man of seventy-eight years of age, was bruised and hurt about the legs and shoulders, was confined to his bed for six weeks, had pleurisy, spit blood and suffered great mental and bodily pain, is not excessive.</p>

Louis City Circuit Court . — Hon. Warivich Hough, Judge. (1) Mental anguish can be a constituent element of damages only when so connected with the physical injury as to render it certain that mental anguish existed as the necessary result of the injury. In all other instances, it is only allowed when accompanied with circumstances of malice, insult or inhumanity. Trigg v. Railroad, 74 Mo. 147; Deeming v. Railroad, 80 Mo. App. 152.

<p>Appeal from St. Lonis City Circuit Court. — How. Daniel G. Taylor, Judge.</p> <p>(1) Defendant’s demurrer to all the evidence should have been sustained. Moore v. Eailway, 75 S. W. 672; Hill v. Wilkins, 4 Mo. 88; Ellerby v. Bank, 109 Mo. 445; Bartley v. Eailroad, 148 Mo. 124; Havens v. Eailroad, 155 Mo. 223; Emmons v. Quade, 75 S. W. 103; Zurfluh v. Eailway, 46 Mo. App. 626; Molineux v. Eailway, 81 Mo. App. -25; Cogan v. Eailway, 73 S. W- 738; Miller v. Eailroad, 164 Mo-. 180; Waldhier v. Eailroad, 71 Mo. 514; Gurley v. Eailroad, 93 Mo. 445; Ilarty v. Eailroad, 95 Mo. 368; Yarnell v. Eailroad, 113 Mo. 570; Hite v. Eailway, 130 Mo. 132; McManamee v. Eailroad, 135 Mo. 440; Earning v. Eailroad, 157 Mo. 477; Peary v. Eailroad, 162 Mo. 75; Jacquin v. Cable Company, 57 Mo. App. 320.</p> <p>(1) On demurrer to the evidence, every reasonable intendment in favor of plaintiff to be drawn from the evidence offered by him, must be indulged, and the evidence introduced in his behalf regarded as absolutely true. Gratiot v. Railroad, 116 Mo. 450; Buckley v. Kansas City; 156 Mo. 16; Pauck v. St. Louis Beef & Provision Co., 159 Mo. 467; Moore v. St. Louis Transit Co., '75 S. W. 699; McLain v. Railroad, 73 S. W. 909; Steube v. Iron & Foundry Co., 85 Mo. App. 640. (2) A person who negligently places himself in a perilous position is still entitled to recover for an injury, if the defendant saw his danger, or could, by the exercise of reasonable care, have seen it, and prevented the injury. Klockenbrink v. Railroad, 81 Mo. App. 351; affirmed, 72 S. W. 900; Noll v. St. Louis Transit Co., 73 S. W. 907; Conrad Grocer Co. v. Railroad, 80 Mo. App. 391; Sonnenfield v. Railroad, 59 Mo. App. 668; Reed v. Railway, 50 Mo. App. 504; Karle v. Railroad, 55 Mo. 476; Fiedler v. Railway, 107 Mo. 645 '; Bunyan v. Railway, 127 Mo. 12; Hutchinson v. Railroad, 161 Mo. 246; Shafstette v. Railroad, 74 S. W. 826; Bindbeutel v. Railroad, 43 Mo. App. 463.</p>

Louis City Circuit Court. — How. Iiobt. M. Foster, Judge. (1) The finding of the trial court is not conclusive upon the appellate court. Ellis v. Railway, 89 Mo. App. 241. (2) The opinion of the trial court will not be treated as a declaration of law. Mead v. Spalding, 94 Mo. 47; Loessing v. Loessing, 88 Mo. 494.

Louis City Circuit Court. — How. D. G. Taylor, Judge. (1) A tenant may attorn to a subsequent assignee of his landlord either by payment of rent or surrender of possession to him. Pentz v. Kuester, 41 Mo. 447; Holden v. Mann, 43 Mo. App. 640; Gunn v. Sinclair, 52 Mo. 327; May v. Luckett, 54 Mo. 437. (2) Unlawful detainer will not lie against one who was not in possession at the time suit was instituted. Loan v. Smith, 76 Mo. App. 510; Armstrong v. Hendrick, 67 Mo. 542.

Louis City Circuit Court. — How. Jesse Franklin Ferriss, Judge. No exceptions are saved either to the exclusion or admission of testimony nor to instructions offered by appellant and refused by the court, hence no question based upon the action of the court respecting these matters is open to review in this court.

<p>Appeal from St. Louis City Circuit Court. — No». ' Franklin Ferris, Judge.</p> <p>(1) The record, as shown by plaintiff’s abstract, does not show that any bill of exceptions was filed in the court below and by order of the court entered of record. The filing of a bill of exceptions can not be proven by its own recitals. Reno v. Fitz Jarrell, 163 Mo. 411; State v. Baty, 166 Mo. 561; Allen v. Funk, 85 Mo. App. 460; Burdick v. Life Ass ’n, 86 Mo. App. 94; Shoe Co. v. Williams, 91 Mo. App. 511; Lucas v. Huff, 92 Mo. App. 369; Hayden v. Alkire Grocer Co., 88 Mo. App. 241; Roush v. Cunningham, 163 Mo. 173; Wilson v. Railroad, 167 Mo. 323; Bates v. Railroad, 88 Mo. App. 550; Hughes v. Henderson, 95 Mo. App. 312. (2) No error appearing in the record proper, the judgment of the trial court should be affirmed.</p>

Louis City Circuit Court. — How. Warwick Hough, Judge. (1) The motion presented by the appellant to dismiss on the ground that the written contract was never filed with the justice, should have been sustained. Sec. 3852, R. S. .1899; sec. 3853, R. S. 1899; Buzzard & Hapeman, 61 Mo. App. 464; Olin v. Zeigler, 46 Mo. App. 193; Phoenix Ins. Co. v. Foster, 56 Mo. App. 197.

Louis City Circuit Court. — Ho». H. D. Wood, Judge. (1) There was no cause of action stated in the petition, inasmuch as it failed to state that the defendant did falsely, fraudulently and knowingly make the statements,- etc. Koontz v. Kaufman, 31 Mo. App. 416; Tootle v. Lysaght, 65 Mo. App. 139.

— How. J. H. Slover, Judge. 0 (1) The plaintiff having agreed to accept and having accepted the deed to the premises with a full knowledge of all the facts in relation to the improvements and to the possession of the land by the tenants, waived his rights in the premises, and is now estopped to set np the claims he now makes. Williams v. Railroad, 153 Mo. 487, and eases cited.

— Hon. E. P. Gates, Judge. (1) The bond was given for the purpose of securing the performance by defendant of his duties as agent, and any recovery on said bond must he limited to defendant’s failure to perform said duties. The extent of the bond is measured by the extent of said duties, and there-can he no liability against defendant for anything upon the bond, unless he himself was liable for the same thing, as agent, outside of said bond.

— Eon. J. II. Slover, Judge. (1) The court committed error in refusing the demurrer to the evidence, and also in refusing the peremptory instruction to find for the defendant, requested at the close of all the evidence, for the reasons: First. Mrs. Randell was a trespasser and unlawfully .on the train and the defendant owed her no duty, except not to willfully or wantonly injure her, and there was no evidence of such act of the defendant.

— Rom. E. P. Gates, Judge. (1) The evidence does not sustain the allegations of the petition that the money sued for was deposited with the defendant hank in trust for the plaintiff or in trust to pay the holder of the note claimed by plaintiff as the basis of this action. Beyond question the deposit was made by Shinn to the credit of Missouri Live Stock Commission Company.

— Ho». J. A. TLockaday, Judge. (1) The court tried the case upon an erroneous theory of the law, and submitted the case upon an instruction which erroneously declared the law to the jury. Bank v. Trust Co., 149 111. 543; Bank v. Bank, 151 Mo. 329; Ward v. Smith, 74 U. S. 447; Bank v. Bank, 7 Bis-sell 193; 1 Daniel Neg. Inst. (4 Ed.), sec. 335; 2 Daniels Neg. Inst. (4 Ed.), sec. 1625; Bank v. Ainsworth, 123 Pa.

— No». J. W. Alexander, Judge. (1) The court erred in overruling defendant’s demurrer offered at the close of the whole case, for the •reasons: (a) That R. G. Griffith, clerk of Melhonrn Camp No. 7090, had no power to waive any of the provisions of the by-laws, and especially that he had no power or authority to waive any provisions relating to the substance of the contract, embodied in the application and benefit certificate and the question of waiver, should not have been…

— How. W. L. Jarrott, Judge. (1) One who incloses and holds land by an open, notorious adverse possession, against all the world for a period of ten years, will obtain therein an indefeasible title in fee simple to the land so inclosed and possessed. Ekey v. Ingle, 87 Mo. 493; Sherwood v. Barker, 105 Mo. 477; Long v. Stock Yards Co., 107 Mo. 304; Stevens v. Martin, 168 Mo. 407; Heinemann v. Bennett, 144 Mo. 113; Hunnewell v. Burchett, 152 Mo. 611.

— Hew. J. B. Perkins, Judge. (1) The nonsuit was properly taken and was involuntary. Shoe Co. v. Prickett, 84 Mo. App. 94 • Mc-Anaw v. Mathis, 129 Mo. 149-; State v. Smith, 65 Mo. 469; Harrison v. Bank, 9 Mo. 162.

— Ho». A. M. Woodson, Judge. (1) Where trust funds are placed in the hands of a party, they can not be surrendered by him without the consent of the party or parties placing it there, and if he does, he is guilty of conversion. Seehorn v. Bank, 148 Mo. 256. (2) Where bailor is entitled to a portion of the deposit, he may recover for conversion in damages to the extent of his part of the deposit. Keyes v. Bank, 52 Mo. App. 323.

Circuit Court. — Row. John A. Hockaday, Judge. (1) The property and money sought to he recovered in this action was the absolute property and allowance of the widow out of the husband’s estate, free from debts and free from distribution among his heirs; said property vested in the widow the moment the husband died and descended to her estate, and heirs, and did not belong to the heirs of the deceased husband. Secs. 105-109, R. S. 1899; In re Klostermann, 6 Mo.

— Row. Gallatin Craig, Judge. (1) The court erred in refusing to give defendant’s instruction 4, as under the law and evidence in this case it should have been given. By refusing it, the jury was deprived of the right to consider the Chattin & Butler note in arriving at their verdict. Menkens v. Menkens, 23 Mo. 252; Chouteau v. McGenis, 28 Mo. 187; State to use v. Berning, 74 Mo. 87; Parker v. Straat, 39 Mo. App. 616.

— How. W. K. James, Judge. Where a petition counts on a contract, there can be no recovery on quantum meruit. Detheridge Lumber Co. v. Schneider, 65 Mo. App. 569; Eyerman v. Cemetery Association, 61 Mo. 489; Davis v. Brown, 67- Mo. 313. Although a petition counts on contract, there may be recovery on quantum meruit where the suit originates in the justice of the peace court, as did this.

— How. W. K. James, Judge. (1) The cause should be reversed because there is no evidence in the case, upon which to base a verdict,and the judgment was rendered outside of the issues framed by the pleadings and supported by the evidence, is improper, and should be reversed. Smith v. St. Louis Transit Co., 92 Mo. App. 41. (2) The verdict is manifestly against the law and the evidence, and the verdict should be reversed. Roman v. Boston Trading Co., 87 Mo. App. 183.

— Ho». IF. A. James, Judge. (1) The court erred in refusing defendant’s instruction in the nature of a demurrer to the evidence. The grading was done and the grade established, at the point to which the grading was done, upon the written request of the plaintiff; she can not, therefore, complain. Vaile v. Independence, 116 Mo. 333; Cross v. Kansas City, 90 Mo. 13; Pratt v. Railroad, 49 Mo. App. 63. Cited the following cases: Pratt v. Railway, 49 Mo.

<p>1. Landlord ánd Tenant: LEASE: MUTUAL CONCURRENT</p> <p>PROMISES: STATUTE OF FRAUDS. Where a landlord and tenant make mutual and concurrent promises and the landlord fulfills his promise by improving the premises, the tenant can not interpose the statute of frauds.</p> <p>2. -: TERMS OF LEASE: EVIDENCE: RENEWAL. On a review of the evidence, a lease prepared for the tenant’s signature is held to embody the contract'made between the parties as to the number of renewals intended.</p>

<p>Passenger Carriers: ALIGHTING: CONTRIBUTORY NEGLIGENCE'. Held, that a passenger who was asleep on the tram’s reaching his station and did not awake until it had started, when he requested the train to be stopped and thereupon, in broad daylight, with full view of the ground, alighted and in so doing stepped upon a cinder which turned and threw him, has no action against the carrier.</p>

<p>1. Real Estate Brokers: TRIAL PRACTICE: BURDEN OF PROOF: INSTRUCTION. In an action by a real estate broker to recover commissions, an instruction throwing the burden of proof on plaintiff as to his employment and the production of a purchaser, etc., is condemned as raising particular issues and requiring strict proof of them, when ' they were, in fact, admitted and the verdict is held to show such instruction misleading and unfortunate.</p> <p>2. Pleading: DEFENSE: AMENDMENT. It is suggested that before a new trial, the answer should be amended to set out the facts as understood by the defendant.</p>

— No». Gallatin Craig, Judge. (1) The court erred in giving instruction 1 on part of defendant, for the reason that it omits to submit the question of plaintiff’s knowledge of the alleged fraud of the Finnells; and forthe reason that the only evidence on the subject of delivery is to the effect that, the delivery was before and not after the levy, (2) The court erred in giving instruction 2 on part of defendant, and in that part of such instruction which says “or that he,…

— lion. Gallatin Craig, Judge. (1) The animal having passed from the pasture of respondent into an adjoining field belonging to a neighbor, through a defective and unlawful partition fence, it was a trespasser in the latter field unless it appears that it passed through at a point where the neighbor was bound by agreement or otherwise, to maintain the fence.

— -How. A. D. Burnes, Judge. (1) The provision giving to Mrs. Hall the net income of the estate was intended by the testator for her support until the legacy of $4,500 was paid, and ceased or lapsed at her death, -unless the provision is a vested legacy transmissible to her heirs. It is not a legacy at all, but a provision for support. McMillan v. Parrón, 141 Mo. 55; Roth v. Rauschman, 73 S. W. 665.

— Ho». Gallatin Craig, Judge. (1) The statute of limitation does not begin to run against a distributee of an estate until final settlement and order of distribution. State v. Blackwell, 20 Mo. 97; State ex rel. v. Hoshaw, 86 Mo. 193,198; R. S. 1899, sec. 3529. (2) The statute of limitations did not begin to run until plaintiff’s (relator’s) right of action accrued. Rabsuhl v. Lack, 35 Mo. 316; State ex rel. v. Hoshaw, .86 Mo. 198.

— Hon. P. C. Stepp, Judge. (1) The court erred in giving the peremptory instruction in the nature of a demurrer at the close of the evidence offered by plaintiffs, and in refusing to submit the whole case to the jury under the pleadings and evidence. Young v. Webb City, 150 Mo. 333; Bank v. Simpson, 152 Mo. 638; Buckley v. Kansas City, 156 Mo. 16; Pauck v. Dressed Beef & Prov. Co., 159 Mo. 467; Dorsey v. Railway, 83 Mo. App. 528; Steube v. Iron & Foundry Co., 85 Mo.

— How. J. E. Slover, Judge. (1) Accord without satisfaction does not bar action on debt. Barton Bros. v. Hunter, 59 Mo. App. 610; Griboney v. Ins. Co., 48 Mo. App. 185; Groff v. Mulholland, 28 Mo. 397; 1 Ency. of Law and Proc., 313, et seq.; 1 Cent. Dig., col. 515, et seq. (2) Creditor may repudiate accord. Accord is a mere offer which may be withdrawn by creditor. This is expressly so ruled in Giboney v. Ins. Co., 48 Mo. App. 185,191.

<p>Appeal from St. Louis City Circuit Court. — if o». D. D. Fisher, Judge.</p> <p>(1) Not to look and listen is contributory negligence as a matter of law and is a bar to recovery. Haggart v. Railroad, 134 Mo. 673; Lane v. Railroad, 132 Mo. 27; Wilier v. Railroad, 120 Mo. 648; Maxey v. Railroad, 113 Mo. 10; Boyd v. Railroad, 105 Mo. 381; Hudson v. Railroad, 101 Mo. 30; Maker v. Railroad, 64 Mo. 267; Fletcher v. Railroad, 64 Mo. 484; Harlan v. Railroad, 65 Mo. 22; Bell v. Railroad, 72 Mo. 50'; Purl v. Railroad, 72 Mo. 160; Kelly v. Railroad, 75 Mo. 140. (2) A stationary car is not an obstruction which will relieve him from contributory negligence in not seeing the approaching car coming from the opposite direction. Buzby v. Philadelphia Traction Co., 129 Pa. St. 539, 17 Atl. 895; Smith v. Railroad, 29 Oreg. 539, 46 Pac. 136; Creamer v. Railroad, 126 Mass. 320, 31 N. E. 391; Grungard v. Railroad, -75 N. E. 221; Mayor v. Railroad, 6 Mo. App. 27; Hanselmann v. Railroad, 88 Mo. App. 122; Baltimore Traction Co. v. Helms, 1 Am. Neg. Rep. 63.</p> <p>(1) Appellant’s demurrer to the evidence was properly overruled. The facts established justified the action of the trial court in submitting the case to the jury. Petty v. Railroad, 88 Mo. 315; Bluedorn v. Railroad, 108 Mo. 449; Baker v. Railroad, 122 Mo. 544; Tesch v. Railroad, 108 Wis. 593; Weller v. Railroad, 120 Mo. 648; Winters v. Kansas City Cable Co., 99 Mo. 509; Kenney v. Railroad, 105 Mo. 285. (2) The presumption is that plaintiff performed his full duty, and at the time was in the exercise of due care, until the contrary is made to appear. And this presumption is not overthrown by the mere fact of injury. Buesching v. St. Louis Gas Light Co., 73 Mo. 233; Stepp v. Railroad, 85 Mo. 236; Flynn v. Railroad, 78 Mo. 212. (3) In reviewing a ruling upon a demurrer to the evidence, the plaintiff should have the benefit of the most favorable view of his case, and. is entitled to the benefit of all the facts before the court, as well as to every reasonable inference therefrom. Hamman v. Central C. & C. Co., 156 Mo. 243; St. Louis v. Railroad, 114 Mo. 18; Bur-bridge v. Kansas City Cable Co., 36 Mo. App. 679; Donohue v. Railroad, 91 Mo. 360.</p>

Louis City Circuit Court. — Row. D. R. Fisher, Judge. (1) The first instruction given for plaintiff authorized a recovery for shame, mortification and mental anguish. Such an instruction is erroneous. Spawn v. Railroad, 116 Mo. 632-633; Grayson v. St. Louis Transit Co. (decided by Court of Appeals, not yet reported); Church v. Bridgman, 6 Mo. 190; Long v. Dunleavy, 80 Mo. 558. (2) The second instruction refused for defendant should have been given.

Louis City Circuit Court. — How. Franklin Ferriss, Judge. (1) The court erred in permitting the witness Brizzi to testify as to what the conductor said when asked to stop the car after the occurrence of the accident. Such declarations are neither admissible as admissions nor as part of the res gestae.

Louis City Circuit Court.- — Now. N. D. Fisher, Judge. (1) ResjDondent can not maintain this action, because in his testimony he admitted that he was not the real party in interest, and that he with others had transferred or assigned the cause of action before the suit was filed, and this fact was pleaded by appellant as a defense to the action; therefore, the court erred in refusing appellant’s instructions that respondent was not entitled to recover under the evidence…

Louis Circuit Court. — Hon. Franhlin Ferriss, Judge. (1) The defendant’s instructions to find for defendant, offered at the close of the plaintiff’s case and of all the evidence in the case, should have been given.

<p>Appeal from St. Louis City Circuit Court. — Hon. Robt. M. Foster, Judge.</p> <p>(1) Nowhere in his testimony does this witness state that he was employed by plaintiff to treat her; that he made any charge for his services, nor does the testimony show that he intended to make such charge. (2) Under the evidence, it was error for the court to authorize the jury to allow plaintiff any sum whatsoever for medical attendance. Duke v. Railroad, 99 Mo. 347; To the same effect are the cases of Minster v. Railroad, 53 Mo. App. 276; Orscheln v. Scott, 79 Mo. App. 534; Robertson v. Railroad, 152 Mo. 382; Moore v. Railroad, 144 Mo. 500; Smith, v. Railroad, 108 Mo. 43; Rhodes v. City of Nevada, 47 Mo. App. 499.</p> <p>(1) There is no properly authenticated bill of exceptions in this case for the reason that the second extension of time granted by the court was without any cause (good or bad) shown. Bushnell v. Finnan, 83 Mo. App. 70, and cases there cited. (2) The instruction (No. 9) was properly given. There is ample evidence in the testimony of plaintiff that she had the medical attendance and owed for it. Anchor Milling Co. v. Walsh, 24 Mo. App. 97; Kingsbury v. Joseph, 94 Mo. App. 298; Hurst v. Kansas City, Etc., 163 Mo. 309; Cosgrove v. Leonard, 134 Mo. 419.</p> <p>STATEMENT.</p> <p>The St. Louis Transit Company has appealed from, a judgment of the circuit court of the city of St. Louis, rendered upon the verdict of a jury awarding her damages for personal injuries.</p> <p>The portions of plaintiff’s petition material, omitting formal averments, are thus set forth:</p> <p>“Plaintiff further states that on or about the first day of March, 1902, plaintiff for value received was accepted by the defendant as a passenger on its trolley car in charge of its agents or servants at the said intersection of Olive and Sixth streets in said city, to be safely carried by defendant to the said intersection of Ninth and Lynch streets as aforesaid, and defendant thereby agreed and it became its duty as aforesaid, to well and safely carry and transport plaintiff to said Ninth and Lynch streets as aforesaid, and plaintiff entered the trolley car of the defendant for the purpose of said transportation.</p> <p>“But plaintiff says that defendant, unmindful of its duty in the premises and in violation of its contract aforesaid, failed to carry plaintiff well and safely to the said Ninth and Lynch streets, but so carelessly and negligently conducted itself in the premises that defendant failed to provide a safe step from its trolley car and failed to keep the mud off the step provided, that plaintiff Avithout any fault on her part was, in alighting from the ear of defendant, thrown from the car by reason of said unsafe step and the mud collected thereon and by reason of said fall plaintiff’s clothes were destroyed and plaintiff’s ankle was wrenched so that plaintiff was confined to her bed for the space of six weeks and plaintiff’s nervous system was destroyed and plaintiff was and is injured internally, and said injuries are permanent and plaintiff has and will suffer great pain and anguish and has and will in the future be put to great expense for medicine and medical attendance, all to her damage in the sum of twenty-five, thousand dollars, for which with costs, she asks judgment.”</p> <p>The answer was a general deniál coupled with a special plea Avhich, in the view taken by us, may be dismissed without further consideration.</p>

<p>1. Carrier of Passengers": PASSENGER THROWN -PROM CAR: DEMURRER TO PLAINTIPP’S EVIDENCE. Where plaintiff tesr tiffed that by a sudden lurch of defendants’ ear, she was thrown from the body of the ear into the street, a demurrer to plaintiff’s evidence was properly overruled.</p> <p>2. -:--: NEGLIGENCE: INSTRUCTIONS: DEGREE OP CARE. An instruction that a street ear corporation is bound to use the highest degree of care for the safety of its passengers, in connection with an instruction which tells the jury that if the motorman’s negligence caused the ear to lurch, etc., plaintiff could recover, is not erroneous, though the term “highest, degree of care” is not defined.</p> <p>3. Instructions: USE OP WORD “THINK.” Using the word “think” in an instruction instead of “find” or “believe” is not. error.</p>

' Appeal from St. Louis City Circuit Court . — Hon. J. A. ' McDonald, Judge. (1) The refusal of defendant’s peremptory instruction asked at the close of all the evidence was error. Fuchs v. St. Louis, 167 Mo. 620; Feary v. Railroad, 162 Mo. 102; Amer. Brewing Ass ’n v. Talbot, 141 Mo.. 684; O’Malley v. Railroad, 113 Mo. 319; Sawyer v. Railroad, 37 Mo. 241; Young v. Railroad, 93 Mo. App. 275; Holt v. Railroad, 84 Mo. App. 443; Bishop’s Non-Contract Law, sec. 1103.

Louis City Circuit Court. — Ron-— Judge. (1) Defendant’s permission to plaintiff to com-, píete the work under the cancelled contracts of February 18, 1902, which plaintiff had no right to do but for defendant’s waiver of its right to do the work at plaintiff’s expense, was a valuable consideration to support the contract of June 23, 1902. “The smallest spark of consideration is sufficient to support a contract deliberately made.” Husband v. Epling, 81 111. 172; Long v.…

<p>1. Carriers of Passengers: DEGREE OF CARE. In an action by a passenger against a street railway company'for personal injuries, an instruction which tells the jury that a street car corporation “is bound to use the highest degree of care for the safety of its passengers,” correctly declares the law.</p> <p>2. —-—: -: CONTRIBUTORY NEGLIGENCE: EQUAL NEGLIGENCE. Where there was evidence offered by the defendant, of negligence on the part of plaintiff which contributed to the injury for which he sues, an instruction which told the jury that if plaintiff and defendant’s servants were equally guilty of negligence which directly contributed to the accident, the verdict should be for defendant, was improperly refused.</p>

<p>1. New Trial: IMPEACHING VERDICT: MISCONDUCT OF JUROR. Affidavits of jurors will not be heard for the purpose of impeaching their verdict; considerations of public policy forbid it. Nor can a verdict be impeached by affidavits of outside parties to statements made by a juror after his discharge, showing that such a juror had formed an opinion before the trial. (Per Bland, P. J.; Reyburn and Goode, JJ., concurring in the result, but expressing no opinion as to second conclusion.)</p> <p>2.--: NEWLY-DISCOVERED EVIDENCE. Affidavit of witness who testified at the trial can not be looked to as furnishing any evidence of newly-discovered evidence.</p> <p>3. —--: -: A new trial will be granted in an action for breach of promise of marriage, on the ground of newly-discovered evidence, where the witness whose affidavit is offered would not have been discovered by diligence, and where her affidavit discloses facts, which, if true, show that no contract of marriage was ever entered into, although their truth was denied by the affidavit of plaintiff.</p>

Louis City Circuit Court. — Row. Warwick Hough, Judge. (1) Defendant was entitled to judgment on the statement -of facts made by plaintiff’s counsel in opening his case to the jury. In such cases it is the duty of the court to stop further proceedings and enter up judgment for the defendant, without waiting for plaintiff to introduce proof in support of his counsel’s confession that he had no cause of action.

Louis City Circuit Court. — Row. Warwick Hough, Judge. (1) The trial court committed no error in giving the declaration of law offered by appellant, and in refusing that offered by respondent Lippe, and should have overruled the said motion for new trial, (a) Because the express language of the statute is that “it shall not be necessary to prove such incorporation or partnership unless the opposite party put such fact in issue by an affidavit filed with the pleadings;” and…

Louis City Circuit Court.— Eon. J. B. Kinealy, Judge. (1) The second instruction given for the plaintiff is erroneous. It instructs the jury that if the assault made hy the conductor “was made with malice,” then the jury might assess exemplary damages in favor of the plaintiff in addition to the actual damages.

Louis* City Circuit Court. — How. Franklin Ferriss,- Judge. The will of testator manifestly intended that appellant should have charge of whatever was done, as to his estate situate in the city of St. Louis; and as such' intention could be effectuated only by giving the administration of the estate to him, the order of annulment entered by the probatanourt was proper, and the only means by which the plainly expressed wish of the testator could be carried out, and should,…

.Louis City Circuit Court. — Row. Franklin Ferriss, Judge. (1) There was no such account filed as is required by section 630, Revised Statutes 1899. It was error to admit any evidence in support thereof. Dawson v. Quillan, 61 Mo. App. 676. (2) There was a fatal variance between the pleadings and the proof. The petition alleges a tacit contract to pay the reasonable value of certain goods. The proof disclosed an entirely different agreement. Hayes v. Bunch, 91 Mo.

Louis City Circuit Court. — Ho». H. D. Wood, Judge. (1) The demurrer to the evidence should have been sustained. The evidence nowhere shows that the pretended dangerous place was made so by any act of defendant, or that the defendant was charged with any duty of .keeping the street in good condition for passengers going to or from the cars. In the absence of such proof the plaintiff can not recover. Moss v. Railroad, 57 App. Div. (N. Y.) '587, 11 Am. Neg. Rep. 568.

Louis City Circuit Court. — Hon. Dcmiel tí-. Taylor, Judge. (1) To constitute the relation of carrier and passenger there must always be an offer and request to be carried on one side and an acceptance on the other. Schepers v. Railroad, 126 Mo. 665'; Schaefer v. Railroad, 128 Mo. 71; Duff v. Railroad, 91 Pa. St. 458; 2 Shear. & Redf. on Neg. (4 Ed.), sec. 488; Patterson’s Railway Accident Law, secs. 210-214.

Louis City Circuit Court. — How. Warwick Hough, Judge. (1) (a) Tire power to levy assessments for local improvements is referable to the taxing power. St. Joseph v. Parr-ell, 106 Mo. 437; Moberly v. Hogan, 131 Mo. 19. (b) And if such power is exercised in the mode required by law, it is no defense of an action to enforce a special taxbill, to say that such improvement is of no benefit to the property charged. Keith v. Bingham, 100 Mo. 300.

Louis City Circuit Court . — Eon. J. A. McDonald, Judge. (1) The abstract filed by appellant does not show that any bill of exceptions was filed in the court below by order of the court entered of record. Reno v. Fitz Jarrell, 163 Mo. 411; Roush v. Cunningham, 163 Mo. 173; State v. Baty, 166 Mo. 561; Wilson v. Railroad, 167 Mo. 323; Jordan v. Railroad, supra; Allen v. Punk, 85 Mo. App. 460; Burdick v. Life Ass’n, 86 Mo. App. 94; Bates v. Railroad, 88 Mo.

Louis City Circuit Court. — Eon. J. A. McDonald, Judge. All the persons engaged in loading the box and hoisting it out of the quarry, namely, the engineer, the man on the bank over the quarry, and the three men engaged in loading the box, were fellow-servants, and neither could recover for any injury sustained by reason of the negligence of the other.

Appeal -from St. Louis Circuit Court. — Eon. E. D. Wood, Judge. (1) Under the law governing dramshops and granting dramshop license, this was a material and a valuable condition for defendant to have in her deed, and one which she might have to enforce against defendant, in order to obtain a saloon license. An examination of the statute will show this. R. S. 1899, secs. 2993 and 2997. (2) Where parties construe a contract themselves, the court will follow such construction.

Louis City Circuit Court. — Row. R. D. Wood, Judge. (1) The allowance of the receiver’s attorney is part of the taxable costs in the proceeding. R. S. 1899, sec, 755; Beach on Receivers (Alderson’s Ed.) p. 810, Turner v. Butler, 66 Mo. App. 383. (2) The court should make the allowance and tax the same as costs. St. Louis v. St. Louis Gas Light Co., 11 Mo. App. 243. And the attorney has the right to have his fees so taxed.

<p>Appeal from St. Louis Court of Criminal Correction.— Hon. L. A. Steber, Judge.</p>

Louis City Circuit Court. — Ron-. R. R Wood, Judge/ (1) No error was committed in the admission of evidence in behalf of appellant over the objection of respondent; nor in the rejection of evidence offered by respondent and objected to by appellant. Ford v. Railroad, 63 Mo. App. 133; Walton v. Railroad, 40 Mo.

— ¿Am. J. T. Neville, Judge. (1) The peremptory instruction given by the court was based on the theory that plaintiff’s husband was. acting in her behalf to buy, and also as agent of Dr, Ullman to sell, and that the contract made by defendant could not, therefore, be enforced; that such fact invalidates the contract. To this view there are several answers, each sufficient and complete, (a) There was no such defense made in the pleadings.

Louis City Circuit Court. — Hon. E. D. Wood, Judge. ,(1) Where the special contract pleaded as the foundation of plaintiff’s right of recovery is one of suretyship, wherein plaintiff declares that he performed each and every of the conditions upon his part, he must show an exact and strict compliance with all of said conditions or terms, without departure therefrom, otherwise his proof fails and he can not recover of the security.

Louis City Circuit Court. — Hon. John A. Tdlty, Judge. (1) The beneficiary is a necessary party to this action. Yoorhis v. Gamble, 6 Mo. App. 1; White v. Watkins, 23 Mo. 423; Sampson v. Mitchell, 125 Mo. -217; Sheridan v. Nation, 159 Mo. 27. Therefore, plaintiff must prove that defendant was the beneficiary under the trust deed at the time this suit was filed, or her bill was improperly brought and its dismissal was proper.

Louis City Circuit Court. — No». J. A. McDonald) Judge. (1) (a) Municipal ordinances, not pleaded, are inadmissible in evidence. Givens v. Van Studdiford, 86 Mo. 159 ; State ex rel. v. Oddle, 42 Mo. 210; Mooney v. Keimett, 19 Mo. 551. (b) The city of St. Louis could' not declare that to be a nuisance, which is not a nuisance 'per se. The fact of a nuisance is to be determined by the evidence. St. Louis v. Heitzeberg, 141 Mo. 375; Hisey v. Mexico, 61 Mo.