Volume 104 — Missouri Appeal Reports

Louis City Circuit Court. — Eon. Daniel G. Taylor, Judge. (1) Non-payment of an assessment works ipso facto a suspension. Tire laws of the order provide that non-payment of an assessment on or before the twenty-eighth day of the month shall work ipso facto a suspension and forfeiture, and that no action on the part of the lodge or any officer thereof shall be required as essential to such suspension. This provision was also valid and binding upon the member.

— No». David H. Eby, Judge. (1) Sections 7082, 7083 and 7127 and other seciions of the' Revised Statutes of the State of Missouri for 1899, define, recognize and authorize the [holding of primary elections such, as was held in Monroe county.. Missouri, on the twenty-ninth day of March 1902.

— How. E. R. McKee, Judge. (1) The venne was not proven, neither by direct proof nor by proof of facts and circumstances from which it could be made to appear that the offense charged was committed in Clark county, Missouri; hence the evidence does not show jurisdiction and will not support verdict of guilty.

<p>Appeal from Knox Circuit Court— Eon. E. R. McKee, Judge.</p>

— Horn. David H. Eby, Judge. (1) The execution,of the bond sued on and charged to have been executed by defendants riot being denied by answer verified by affidavit, is adjudged confessed. R. S. 1899, sec. 746. (2) Judgment might properly have been rendered against the sureties on the cost bond at the time of the judgment against Smith, but as this was not done they have an action on the bond to recover the costs. Davis v. Farmer, .28 Mo. 54.

— Hon. E. B. McKee, Judge. (1) The rule is well settled, that a motion for a new trial, on the ground of newly discovered evidence, must be supported by the affidavit of the party moving for a new trial,or some excuse given for its absence. (2) In this case the defendant is a corporation, but the mayor .is the chief officer and legally represents the defendant. Service of summons must be had on the mayor because he is the chief officer.

— How. David II. Eby, Judge. (1) Plaintiff’s application for membership is a part of the insurance contract in this cause. State ex rel. v. Temple Benevolence Ass’n, 42 Mo. App. 485. (2) The application, the certificate and the constitution all make up the contract in this case. Richardson v. Supreme Lodge of Order of Mutual Protection, St. Louis Court of Appeals, Jan. 20, 1903; Morton v. Royal Tribe of Joseph, 93 Mo. App. 78; Grand Lodge v. Elsner, 26 Mo.

<p>1. SALES: Quantum Meruit: Apportionable Contract. Where one entered into contract to deliver a certain quantity of hay, by installments and delivered only a portion of the same, he can not sue on the contract, but may sue in assumpsit for the value of the hay delivered.</p> <p>2. -: -: -: Set-Off. And if the other party was damaged by plaintiff’s failure to comply with his contract, he can plead such damage as a set-off.</p>

— Ho». D. H. Ely, Judge. (1) A party can recover only on a canse of action existing at the date of the institution of his suit, and even though by reason of events transpiring subsequent to the filing of a suit, a plaintiff may acquire a cause of action, yet the test of a defendant’s liability relates back to the time of the institution of the suit, and a plaintiff can not recover on a subsequently acquired cause of action even by an amendment of his petition. Boatmen’s Sav.

<p>1. PRACTICE: Counterclaim: Instructions: Burden of Proof. Where, in an action on a note, a counterclaim containing several items was filed by defendants, and plaintiff replied admitting certain of such items, an instruction that the burden was on defendants to prove each and every item of their counterclaim by the greater weight of evidence, was properly refused.</p> <p>2. -: Peremptory Instruction. Where the evidence was susceptible of an inference contrary to plaintiff’s contention on a certain issue, a peremptory instruction to find for him on that issue was properly refused.</p> <p>3. -: Instruction: Presumption. In an action on a note, where there was a counterclaim and it was a matter of dispute whether some items of the counterclaim were included in a settlement which was had at the time the note was given, it was proper to refuse an instruction to the effect that there was a presumption of law that defendant owed the amount of ' the note at the time of its execution.</p> <p>4. INTEREST: Judgment on Counterclaim. .In an action on a note in which a counterclaim was filed, where the jury found the amount due both on the note and the counterclaim, striking a balance, the finding on the note was afterwards set aside, leaving the finding on the counterclaim undisturbed, and a new trial was had at a subsequent term on the note: Held, interest should have been allowed on the amount found due on the counterclaim from the date of the first verdict, in striking the balance between the two claims.</p>

<p>1. LANDLORD AND TENANT: Pleadings: Lien on Crop: Waiver. In an action under section 4123, Revised Statutes of 1899, for the value of a crop, by the landlord, against a purchaser from the tenant with knowledge that it was grown on the leased premises and that the rent was unpaid, an answer which avers “that plaintiff gave to (the tenant) her consent for him to sell ¿nd dispose of, and collect all of the money for, all crops raised by him, and especially the timothy seed (the subject of the suit) ” was broad enough to let in proof that plaintiff consented to the sale and thereby waived her lien, although the answer, in addition, pleaded that plaintiff waived her lien by taking other security upon which she relied solely for the collection of her rent.</p> <p>2. -: Lien on Crops: Waiver: Taking Other Security. A stipulation in a mortgage, taken by a landlord on the land of his tenant to secure the payment of the rent on the land leased, that nothing in said mortgage should be construed as a waiver of the statutory lien on the crops on the leased land, did not create a mortgage on such crops, but was intended to avoid a possible inference that, in taking other security, the landlord relinquished the statutory security.</p> <p>8. -: -: -: Statute' of Frauds. A crop of timothy seed, whether sold before or after it was gathered, was not a part of the realty, and a parol release of the landlord’s lien for rent thereon could be made, unaffected by the statute of frauds.</p> <p>4. -: -: -: Consideration. The unconditional consent of the landlord to the sale of the crop, is a waiver of his lien thereon for the rent, although there is no consideration for such waiver.</p> <p>5. EVIDENCE: Landlord and Tenant: Lien on Crop: Waiver: Agency. In an action under section 4123, Revised Statutes of 1899, by the landlord, for the value of a crop, against a purchaser from the tenant, where the question of waiver, by agent, of the landlord’s lien on the crop, was in issue, it was error to exclude evidence as to the scope of the agency, and the apparent authoisity of the agent; the power of the agent to lease the land did not carry with it the power to waive the lien.</p> <p>6. -: -: -: Release of Lien on Other Crops. Evidence that the landlord consented to the sale of other portions of the crop on the land was not admissible to prove a waiver of the lien on that portion concerning which suit was brought.</p> <p>7. -: -: -: Value of Other Security. Evidence showing the value of other security taken by the landlord for the payment of his rent was inadmissible to show waiver of the landlord’s lien on the crop.</p>

<p>Appeal from Clark Cironit Court . — Hon. E. R. McKee, Judge.</p>

<p>Appeal'from Ripley Circuit Court. — Hon. J. L. Port, Judge.</p>

— Ho». David H. Eby, Judge. (1) The statement does not allege that the contract was in writing nor that the work was to be performed within one year and is within the statute of frauds and therefore does not show upon its face that plaintiff had a canse of action. R. S. 1899, sec. 3418. The contract must he fully performed within one year. Sharp v. Rhiel, 55 Mo. 97.

— Ron. D. R. Eby, Judge. (1) Defendant insists that the city should pay for the construction of her sidewalk because the city engineer in the above advertisement for bids made reference to ordinance No. 1619, which ordinance was not put in evidence. Defendant’s rights or interests were not affected by the ihistake if it was a mistake. Shehan v. Owen, 85 Mo. 465; Cole v. Skrainka, 105 Mo. 303; City of Marionville v. Henson, 65 Mo. App. 397.

Habeas Corpus. (1) It is now a well-settled rule in this State that where a city ordinance is based upon a general grant of power in the charter, and not a specific grant, the reasonableness of such an ordinance can be inquired into by the courts, and if unreasonable, the ordinance will be declared void. City of - Springfield v. Starke, 93 Mo. App. 76, and cases cited.

— How. D. E. Eby, Judge. (1) Appellants, as it appears from their brief, contend for the reversal of this judgment on the sole ground that sections 4560 -and 4561, R. S. 1899, do not authorize the supplying of any lost record without notice to the party or parties affected. Section 4560 of said Revised Statutes of 1899 provides how mutilated, lost or destroyed records or papers may be supplied.

<p>Appeal from Shelby Circuit Court. — No». N. M. . Shelton, Judge.</p>

— Row. R. R. Eby, Judge. (1) This statute gives no authority to offer reward for conviction. The State of Missouri has never hungered for the blood even of murderers to such an extent as to offer a reward for their conviction. Thornton v. Railroad, 42 Mo. App. 68. (2) Carter did not make the arrest of Johnson as the agent of Stephens. The murder was committed in Ralls county.

— How. D. JET. Ely, Judge. “The wife is hound to follow the fortunes of her husband and live where he chooses to live and in the style and manner which he may adopt.” Koster v. Koster, 43 Mo. App. 115; Messinger v. Messinger, 56 Mo. 329; Sehurman v. Schurman, 93 Mo. App. 99.

— Now. L. B. Woodside, Judge. (1) Under the “Homestead Law” of this State, prior to the enactment and amendment of 1895, the husband as the owner of the land, and the head of á family, could either sell or incumber such land, without the wife joining in the execution of such instrument; and the-same could be subjected to foreclosure proceedings, to satisfy debt which the lien was created to secure. Gladney v. Sydnor (Supreme Court of Mo. Div.

<p>1. JUSTICES OF THE PEACE: Default: Setting Aside Judgment. Under Section 3939, Revised Statutes of 1899, a justice of tke peace kas no power to set aside a judgment by default except at tke instance of the defendant or bis agent; be can not set it aside at tbe instance of tbe plaintiff.</p> <p>2. -: -: Collateral Attack: Insufficient Service. A judgment by default, rendered by a justice of tbe peace upon service witbin an'd less than tbe period provided .by law, is not subject to collateral attack for insufficiency of service.</p>

— Bow. E. M. Hughes, Judge. (1) An appeal, or writ of error, lies only from a final judgment and neither will lie from a judgment overruling or sustaining a demurrer. Sec. 806, R. S. 1899; Holloway v. Holloway, 97 Mo. 639; Mills v. McDaniels, 59 Mo. App. 331; City of Plattsburg v. Allen et al., 84 Mo. App. 432. (2) Only those rulings of the circuit court can be reviewed by this court to which exceptions have been saved.

— How. H. H. Eby, Judge. (1) The trial court should have sustained the defendant’s motion to dismiss the cause for the reasons stated therein, because: (a) There should have been a sworn statement filed as the cause of action, alleging the loss of the notes and stating their substance. R. S. 1899, sec. 3854; Wise v. Loring, 54 Mo. App. 258. This was a jurisdictional requirement.

- — Hon. E. R. McKee, Judge. (1) The court erred in sustaining plaintiff’s objection .to tire evidence offered by defendant tending to sbow that the policy was obtained by fraudulent representations as to the value of the building. This evidence seems to have been excluded upon the theory that the valued policy law had some bearing upon the question. But it has not. It may be that defendant, if liable at all would be liable for the face of the policy.

<p>1. MUNICIPAL CORPORATIONS: Special Assessment: Part Owner: Notice. The owner of an. undivided part interest in property abutting upon a street, improved by authority of the city, can not defend against an' action by the city for his portion of the cost of such improvement, on the ground "that his co-owners were not notified of the contemplated improvement.</p> <p>2. -: -: -: Estoppel. Where such a part owner permitted the property to be assessed to him as sole owner, and paid taxes thereon as such, was notified as sole owner of the contemplated improvement and appeared before the city council to protest against it, remaining silent as to the true ownership, he is estopped to set up the defense of part ownership of the lot affected.</p>

Louis City Circuit Court . — Hon. D. D. Fisher, Judge. (1) A disease produced by a known cause, as acute kidney disease or dropsy engendered by absorption of poison, resulting from exposure due to handling infected paper or rags, in the regular course of one’s employment, is not a bodily injury accidentally suffered within the purview of the employer’s policy in evidence in this case. Bacon v. United States & M. Acc.

— Wo». E. P. Gates„ Judge. The plaintiff, under the undisputed evidence, was-not entitled to recover and the court should have given a peremptory instruction to return a verdict for defendant, and also instruction No. 2 asked by defendant. Harff v. Green, 67 S. W. 576 (not reported); Lampson v. American Ax Co., 58 N. E. 585, 177 Mass. 144 Worlds v. Railroad, 52 S. E. 646, 99 Ga.-283. Filed an extended argument.

— Ho». James' Gibson, Judge. (1) Statutes of mechanic’s lien should be liberally construed. 0 ’Shea v. 0 ’Shea, 91 Mo. App. 231; Southern v. Rolla, 75 Mo. App. 629. (2) Faurot’s evidence that it was part of his purchase that these goods were for the Neel residence was admissible. The first notice the owner is required to have. is that provided by statute. Henry v. Evans, 97 Mo. 47.

— Hon, J. H. Slover, Judge. (1) The agreement made between Smith and Lowrey, before the maturity of the first installment of the note, was a valid one and fixed the maturity of the note on May 15, 1901, instead of March 1, 1900. The note had not matured and the mortgagee was not entitled to the possession of the property when the attachment suit was brought, September 14, 1900. Hence his creditors could not reach the property by attachment.

— Hon. John A. II ocha day, Judge. (1) The court erred in overruling the plaintiff’s motion for new trial. Schmidt v. Railroad, 149 Mo. 282; Bank v. Armstrong, 92 Mo. 265.

— Row. A. M. Woodson, Judge. (1) The instruction given on behalf and at the request of respondents was erroneous for the reason that said instruction did not advise the jury as alleged in respondents’ petition that it was necessary to find that the second alleged agreement was made in consideration of respondents waiving their right, if any, under the first alleged agreement. Fegan v. Duval S. & G. Co., 92 Mo, App. 236.

— Hon. James E. Has e ll, Judge. (1) Mrs. McKay was not the head of a family. She lived with her husband and was supported by him. Therefore the husband and not the wife was the head of the family. Brown v. Brown, 68 Mo. 388; Whitehead v. Tapp, 69 Mo. 415; Gladney v. Berkley, 75 Mo. App. 98.

— How. Willard P. Hall, Special Judge. (1) The third instruction given by the plaintiff is, erroneous in this: that it declares it was the duty of the •defendant, Kansas City, to keep its streets in a proper state of repair, free from obstructions. Such is not the law.

— Eon. John P„ Butler, Judge. (1) The court erred- in holding that under the law and the evidence plaintiff was entitled to recover. The-legislature by an act passed in 1895, now section 6067,. R. S. 1899, confers upon cities the authority to purchase, land for park purposes, and describes the manner in. which it shall be done, that is by an ordinance describing the land purchased by metes and bounds.

— Row. John P. Butler, Judge. (1) The question of jurisdiction raised by the demurrer of the defendant in this cause was settled many years ago if the statutes and decisions of the appellate courts of this State are to stand against the ruling and judgment of the trial court. (2) The demurrer was sustained solely on the ground that the circuit court had no jurisdiction to try this cause.

— Ho». John P. Butter, Judge. (1) The note in suit was produced in evidence by the executrix of R. M. Hair, from which fact it may fairly be inferred that the note belonged to B. M. Hair at the time of his death. (2) Evidences of debt of all kinds, found in the possession of a decedent at the time of his death, raise the presumption that the decedent was the owner of such evidences of debt at the time of his death. 11 Ency.

— How. W. K. James, Judge. (1) Section 2002 of the statutes of Iowa was introduced in evidence. (2) The courts of this State will enforce the statutes of a sister State. R. S. 1899, sec. 547; Guerney v. Moore, 131 Mo. 650. (1) In an action by a servant against Ms master, wherein the former sustains injuries which he charges to be due to the negligence of the latter, no presumption on the part of the latter will be indulged.

<p>Appeal from St. Louis City Circuit Court. — Hon. E. M. Hughes, Judge.</p> <p>Respondent’s conduct under the circumstances detailed by himself and his witnesses, in heedlessly driving his team and wagon along defendant’s track at a rapid trot on a dark, misty, foggy night, when he knew he was liable at any moment to be confronted by one of defendant’s cars running down grade on slippery rails, was such an act of negligence or utter recklessness as should bar his recovery, notwithstanding his assertion that he did not see or hear the car before the collision. Appellant was entitled to a peremptory instruction, taking the case from the jury. Flutcher v. Railroad, 64 Mo. 484; Harland v. Railroad, 65 Mo. 22; Hallihan v. Railroad, 71 Mo. 113; Purl v. Railroad, 72 Mo. 168; Turner v. Railroad, 74 Mo. 602; Meloy v. Railroad, 84 Mo. 270; Weller v. Railroad, 120 Mo. 635; Bunyan v. Railroad, 127 Mo. 12; Yancey v. Railroad, 93 Mo. 433; ITuggert v. Railroad, 134 Mo. 673; MeManamee v. Railroad, 135 Mo. 440; Yogg v. Railroad, 138 Mo. 172; Culbertson v. Railroad, 140 Mo. 35; Kreis v. Railroad, 148 Mo. 321; Tanner v. Railroad, 161 Mo. 497; Hook v. Railroad, 162 Mo. 569; Cogan v. Railroad, 73 S. W. 738; Ledwidge v. Transit Co., 73 S. W. 1008; Carrier v. Railroad, 74 S. W. 1002; Zumault v. Railroad, 74 S. W. 1015; Moore v. Railroad, 75 S. W. 672; Barrie v.-Transit Co., 76 S. W. 706; Boland v. Kansas City, 32 Mo. App. 8; Harris v. Railroad, 40 Mo. App. 255; Heiter v. Railroad, 53 Mo. App. 391; Gettys v. Transit Co., 103 Mo. 564.</p> <p>(1) Plaintiff was not negligent in driving on the track of the defendant in the circumstances under which he did so, as shown by the evidence. In the first place, Florissant avenue was a public street and highway in the city of St. Louis and very much used by the public and it was not negligence per se to drive in the tracks of defendant laid in this public street. Plaintiff had the right to the use of the street for his horses and wagon as well as had defendant for its ears. Oates v. Railroad, 168 Mo. 544; Kolb v. St. Lonis Transit Co., 76 S. W. 1053; Degel v. St. Louis Transit Co., 74 S. W. 157; Winters v. Railroad, 99 Mo. 517; Dohlstrom v. Railroad, 108 Mo. 536; Gratiot v. Railroad, 116 Mo. 464; Campbell v. Railroad, 75 S. W. 86; Weller v. Railroad, 164 Mo. 199; Hutchinson v. Railroad, 161 Mo. 254. (2) If the night was so dark that the motorman could not see whether a wagon was on the track ahead of him or not, it was- his duty to sound his gong or give other warning of the approach of the car. Noll v. St. Louis Transit Co., 73 S. W. 909. And plaintiff had the right to presume that this precaution would be taken by the men running the cars over that track. Conrad Grocery Co. v. Railroad, 89 Mo. App. 397. (3) Even if plaintiff was guilty of negligence in driving on the track of defendant, yet, under the evidence, plaintiff was entitled to have his' case submitted to the jury. The evidence shows clearly that after plaintiff had driven on the track, and was, of course, in a position where he was in danger of being struck by a ear of defendant running on the same track, if defendant had used ordinary care, or any care at all in funning its car, the collision would not have occurred, and 'if it had kept a vigilant watch for vehicles on the track or moving towards it, as the ordinance required, it could not have escaped seeing plaintiff’s team and wagon on the track in time to have avoided running into them. Morgan v. Railroad, 159 Mo. 262; Klockenbrink v. Railroad, 172 Mo. 678; Hanlon v. Railroad^ 104 Mo. 389, 390 and 391; Guenther v. Railroad, 108 Mo. 18; Dohlstrom v. Railroad, 108 Mo. 525; Degal v. St. Louis Transit Co., 74 S. W. 156; Shanks v. Springfield Traction Co., 74 S. W. 386; Barrie v. St. Louis Transit Co., 76 S. W. 706. (4) The night was dark, and there is no doubt that if there had been a headlight, or any light on that car, plaintiff, or one of the men with him, would have seen it in time to have avoided the car. The ordinance absolutely required that there should he a signal light on the car, and it was negligence per.se on the part of defendant to fail .to comply with the ordinance in this respect. Murray v. Railroad, 242.</p> <p>STATEMENT.</p> <p>Plaintiff was engaged in the business of selling crackers, cakes, bread, etc., to groceries, saloons, etc., in the city of St. Louis, and had a regular line of customers. He owned a wagon and ieam with which he made deliveries of goods to his customers. He lived in the northern part of the city on Florissant avenue, and kept his team at his home. In the afternoon of March 26, 1902, he loaded his wagon at a down town bakery, with the intention of delivering the goods to his customers the next morning. He had with him Henry Herbert, his helper, and on his way home from the bakery picked up Louis Wagoner, who lived near him. There was a saloon on Florissant avenue, from six to eight hundred feet south of plaintiff’s home; when plaintiff arrived at the saloon, Herbert, Wagoner and himself stopped there for fifteen or twenty minutes and drank one or two rounds of beer. The three then got on the seat of the wagon, plaintiff on the right, Wagoner in the middle and Herbert on the left. Plaintiff did the driving. This was about 7:30 o’clock in the evening; it was very dark, and some of the witnesses say foggy and drizzling rain.</p> <p>The evidence is, that on Florissant avenue where plaintiff was driving, the defendant has two railway tracks. The one on the east side of the street is laid with T rails so wagons can not drive on the track. East of this track the street was not improved and was not in use at that time by teamsters, so the only space on the street that could be used by wagons and teams was the west track of the railway and that portion of the street west of the west track which was improved. The evidence is that wagons travelling south were entitled to the right of way on that portion of the street west of the west track. There is also evidence that this part of the street was being cleaned at the time and there were piles of mud and dirt in it. Plaintiff’s evidence is that when he got on his wagon at the saloon, he drove eastwardly until he came to the west railway track; that he then turned due north to drive to his home with the wheels on the east side of his wagon in the track and one or both of his horses between the rails. That he was driving north in a fast trot and when he had proceeded two hundred and fifty or three hundred feet from the saloon, his wagon was struck by something running south, he did not know what, he was thrown to the ground with such force as to render him unconscious and was severely injured. The evidence is that the wagon and team met a south bound car on the west track and collided with the car, in consequence of which, one of the horses was. killed, the wagon smashed to pieces, its contents broken up and scattered, and plaintiff thrown to the ground; that Herbert and Wagoner were thrown on the front vestibule of the car, and that the •car proceeded some fifty or sixty feet after it had collided with the wagon and team. Plaintiff testified that he looked and listened for a car but he neither saw nor heard one coming. Herbert and Wagoner testified that they were unconscious of the approach or presence of the car until it struck the team and they found themselves landed on the vestibule of the car. The three occupants of the wagon testified that there was no light in the car; that there was no headlight and the gong or bell was not- sounded, nor any wárning whatever given of its approach. There was considerable down grade to the south at the place of the collision; but H. C. Montgomery, an ex-motorman who had had something over a month’s experience as a motorman, testified that a car running at a speed of eight miles per hour could have been stopped on that grade in from fifty-five to sixty feet with the brakes, and in thirty-five feet with the brakes and reverse. There was evidence of the value of the horse killed, the damage to the wagon, and of the extent and character of plaintiff’s injury, of his loss of time and of his earning capacity.</p> <p>Defendant’s motorman, Howard Johnson, testified in substance, that the accident occurred about three hundred feet south of Marcus avenue; the car going down grade; that the night was very dark and foggy and misting rain; that there were lights in the car over the vestibule, visible to persons on the outside. That he first saw the wagon about thirty feet in front of the car, ‘ ‘turn in right across in front of me, met me full in the face; ’ ’ that the car and team of horses were going at about the same speed, about eight miles an hour, the horses being in a gallop. That he did everything in his power to stop the car and prevent the collision, but was unable to do so; that he rang the gong just before plaintiff turned in on the track.</p> <p>James Darling, the conductor, testified in substance that the electric lights were lighted in the car, and there was an overhead glass transom; that there was a head light on top which was lighted when they left the end of the road about five minutes before the accident, and that there was an illuminated sign outside 'the car. That a man coming from the south could see the car two or three hundred feet. That he did not see the accident, but from the looks of the ground supposed the car ran about ten or fifteen feet after the collision. That after the collision the car was standing on the rails with the trolley on. Witness supposed the car was running about eight or ten miles an hour.</p> <p>Otto Gr. Kanick testified that he lived about three hundred feet from where the accident happened on Florissant avenue, and saw the collision. That he was standing about four hundred feet south of where it occurred on the street crossing, waiting for a car. That he was standing between the saloon and the place of the accident. That he saw these parties come out of the saloon ; that they passed him and he had to get out of their way or they would have run over him. That they were driving fast, and the night was very wet and dark. That he was standing on the crossing and saw the car as soon as it came to the top of Marcus avenue, about a thousand feet away; that he saw the light of the car a thousand feet away and saw the headlight immediately before it struck the wagon; that there was nothing to obstruct a man’s view sitting on top of a wagon. That he saw the ear distinctly. That the men were driving fast, and when he saw them go on the track and the car coming he was watching for a collision, because the car was coming on the very track the wagon went up on.</p> <p>At the close of plaintiff’s evidence and again at the close of all the evidence, defendant offered instructions that under the evidence plaintiff was not entitled to recover. These instructions were denied. Others were were given submitting the issues to the jury who returned a verdict for plaintiff signed by ten of the jurors, assessing his damages at-five hundred dollars. Defendant filed a motion for new trial which was overruled by the court and judgment entered for plaintiff on the verdict for five hundred dollars. Defendant appealed.</p>

<p>Appeal from Stoddard Circuit Court. — He». Jas. L. Fort, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. D. D. Fisher, Judge.</p> <p>(1) Under the pleadings and evidence in this case plaintiff was not entitled to recover, and the trial court should have so declared to the jury by peremptory instruction as requested by defendant. At the end of the trial the cause of action alleged in plaintiff’s petition remained unproven in its entire scope and meaning. As to the necessity of pleading and proving that the jerk in such cases was unnecessarily or unusually violent, see Saxton v. Railroad, 72 S. "W. 720; Pryor v. Railroad, 85 Mo. App. 367; Bartley v. Railroad, 148 Mo. 124; (2) As to the necessity of proving that defendant’s servants either knew or by the exercise of care might have known of plaintiff’s situation at the time he fell, see Strauss v. Railroad, 75 Mo. 185; Cullar v. Railroad, 84 Mo. App. 340. (3) It was error for the court to authorize a recovery for a future pain and future loss of earnings without evidence upon which to base it. Duke v. Railroad, 99 Mo. 347; Barr v. City, 105 Mo. 550; Mellor v. Railroad, 105 Mo. 450; Nixon v. Railroad, 141 Mo. 425; Cobb v. Railroad, 149 Mo. 609; Robertson v. Railroad, 152 Mo. 383; Evans v. City, 76 Mo. App. 20; Madison v. Railroad, 60 Mo. App. 599; O’Brien v. Loomis, 43 Mo. App. 29; Mammerberg v. Railroad, 62 Mo. App. 563.</p>

<p>1. WITNESS: Wife's Testimony: Agency. A wife, who kept her husband’s accounts, did his writing and at his dictation wrote letters to the mortgagee concerning a note and chattel mort- ■ gage on his cattle, was not his agent so as to make her a competent witness for him, under section 4656, Revised Statutes of 1899, in regard to a settlement of the note, had between her husband and the agent of the mortgagee. •'</p> <p>2. EVIDENCE: Contents of Lost Instrument. Where one party to a suit claimed to have lost certain letters received from the other, and the other denied having written them, it was competent for the first to testify to their contents.</p> <p>3. AGENCY: Scope of Authority. In. an action on a note secured hy chattel mortgage on some cattle, where the mortgagee, after some correspondence with the mortgagor concerning the condition and care of the cattle, sent an agent to look after them, with a letter of introduction, as claimed by the mortgagor, which was lost, and the mortgagor’s testimony as to the substance of the letter, showing the scope of the agency, was somewhat indefinite, the evidence was insufficient to submit to the jury the question of the agent’s authority to settle the debt, the mortgagee having denied the authority and the letter.</p> <p>4. CHATTEL MORTGAGES: Private Sale: Mortgagee as Trustee. The mortgagee in a chattel mortgage, who sells the mortgaged property at private sale under a power in the mortgage, is thereby trustee for the mortgagor and bound to make the property bring the best price obtainable, or stand the loss.</p>

— No». L. B. Wood-side, Judge. The well known and settled rule of law is that tbe lawful wife of a man is in no case competent to testify against him, or to make affidavits in any legal proceeding adverse to him, unless she be tbe immediate and direct object of tbe crime of misdemeanor complained of, and in cases of high treason. This doctrine is fully recognized in our Supreme Court in tbe case of State v. Hannah Coleman, 14 Mo. 119; Roscoe on Crim.

<p>Appeal from St. Louis County Circuit Court. — Hon. J. W. McElhinney, Judge.</p> <p>The decree of the circuit court is not authorized by nor founded upon any pleading in the case, and therefore can not stand. Newham v. Kenton, 79 Mo. 382; Muenks v. Bunch, 90 Mo. 500; Reed v. Bott, 100 Mo. 62; Leet v. Gratz, 92 Mo. App. 438.</p> <p>Where property is acquired in the name of the wife during coverture, the presumption of law is that it was paid for with the means of the husband, and is his property; the burden is on her to show that it was acquired by her, with her separate means; in the absence of such evidence the presumption is that it was acquired with his means. In many of the cases the presumption is said to be a violent one. Bump on Fraudulent Conveyances (4 Ed.), sec. 249; Snyder v. Free, 114 Mo. 369; Hoffman v. Nolte, 127 Mo. 120, 134; Lins v. Lenhardt, 127 Mo. 289; Patton v. Bragg, 113 Mo. 601; Sloan v. Torry, 78 Mo. 623, 625; Garrett v. Wagner, 125 Mo. 450, 461; Halstead v. Mustion, 166 Mo. 488, 494.</p> <p>STATEMENT.</p> <p>The evidence is that on January 2,1897, Jesse Mort borrowed of plaintiff two hundred dollars and gave his promissory note therefor, due six months after date, with Emil Fritsch as security. The note was not paid at maturity and plaintiff brought suit thereon before a justice of the peace, and on September 11, 1901, recovered a. judgment against both Mort and Fritsch for the principal and interest ($256.40) then due. The judgment was not paid. In 1902, Mrs. Fritsch, the interpleader, and wife of Emil Fritsch, was advised by her physician to go to Colorado Springs, Colo., for the benefit of her health. She, preparatory to removing with her husband and children to Colorado Springs, advertised her personal property for sale on June 21, 1902. The plaintiff brought suit on his judgment (on the note) in the circuit court of St. Louis county, and in aid of the suit sued out a writ of attachment against Emil Fritsch. The officer to whom the writ of attachment was delivered seized a lot of personal property, as the property of Emil Fritsch, found in the house where he resided with his wife and children, in the city of Kirkwood, St. Louis county. A.grand piano was one of the articles attached by the officer. Fritsch and wife gave a forthcoming bond for the property and it was returned to them. Mrs. Fritsch filed her interplea claiming the attached property as her separate and individual property. The allegations of the interplea were denied by plaintiff and the issues thus made were submitted to the court sitting as a jury who, after hearing the evidence, found that the interpleader had purchased the piano partly with her separate means and partly with the means of her husband, Emil Fritsch; that of the latter’s money ($237.50) was used in the purchase of the piano, and adjudged the attachment a lien on the piano for the payment of that sum, giving to inter-pleader the right to discharge the lien on the payment of said sum of $237.50. From this judgment the inter-pleader appealed to this court.</p> <p>The title to none of the property attached is involved on this appeal except the piano. The evidence shows that at the time of the marriage of Mrs. Fritsch to her husband (1891) she had saved a few hundred dollars from her earnings; that with this money Mrs. Fritsch purchased a lot in the city of Kirkwood, taking the deed to herself. After purchasing the lot, she borrowed a thousand dollars, giving as security a deed of trust on the lot executed by herself and husband. With this money she erected a dwelling on the lot in which she and her husband resided until the day the attachment was levied. The thousand dollars borrowed were paid mostly by a new loan of nine hundred dollars secured as was the first loan. This debt has not been paid. The evidence shows that the management and control of their household affairs was given over entirely by Fritsch to his wife; that all purchases of furniture and household goods were made by her, in her name and were claimed by her as her separate property. Mrs. Fritsch’s evidence tends to show that she kept roomers or boarders from time to time, did some fancy work by which she earned some money and received from her husband from month to month during their marriage, small sums of money earned by him at his trade, and .that all the surplus saved from these sources was deposited in bank by her to her individual account. No estimate of the amount received by her from boarders or roomers was given at the trial, nor of the income from her fancy work. It is shown that Emil Fritsch earned about twenty-five dollars per week at his trade. He and his wife testified that he furnished the money to pay for the maintenance of the family, consisting of himself, wife and several children, but no estimate is given of what i t cost to maintain the family. It is shown that for several years prior to the levying of the attachment Mrs. Fritsch kept her deposit account in a bank at Kirkwood and that both she and her husband drew checks against that account (the checks drawn by her husband being signed “Lena Fritsch by Emil Fritsch”), and that at the date of the levying of the attachment there was a balance of four hundred dollars to the credit of Mrs. Fritsch in the bank. The evidence is that the piano was bought by Mrs. Fritsch on July 15, 1899, for five hundred and twenty-five dollars; that she paid three hundred dollars cash, gave two notes, one for fifty-eight dollars and the other for fifty-nine dollars, and an old piano valued at fifty dollars for the balance of the purchase price; that the bill of sale for tbe piano was made to her and that she afterwards paid the two notes. Fritsch was a barber and owned no property except the furnishings of his barber shop worth about one hundred dollars.</p>

<p>Appeal from Scotland Circuit Court. — Hon. E. B. McKee, Judge.</p> <p>(1) Tlie contract in evidence provided that the five hundred dollars was to be paid upon a certain date, tqwit: the first day of May, 1901, this being the case, it was an independent and absolute promise to pay the amount on that date. Overton v. Curd, 8 Mo. 420; Portage v. Cole, 1 Saunders 320, note 1. (2) When (as in this case), the promises of both parties are absolute and independent of each other, upon a breach of his promise by one party, the other may sue him without averring that he has performed his own promise and it is no defense to such action for the defendant to plead that the plaintiff has failed on his part to perform his part of the agreement. American and English Cy. of Law (1 Ed.), page 909, title Contracts; Thorp v. Thorp, 12 Mo. 455-564; Cases cited to support the text; Underhill v. Saratoga and W. R. Co., 20 Barb. 455; Edgar v. Boyes, 11 S. & R. (Pa.) 445; 7 Am. and Eng. Ency. Law (2 Ed.), page 119, title Contracts, note 1, cases cited; Wheler v. Garsge, 28 N. T. Superior Ct. 280; Payne v. Bettisworth, 12 A. K. Marsh, 9 Ky. 427; Smith v. Betts, 16 How. Prac. 251; Fire Ins. Co. v. Butler, 34 Me. 451; Sherwin v. Railroad, 24 Vt. 347; State v. Railroad, 21 Minn. 472; Goodwin v. Holbrook, 4 Wend. 377; Schenectady County Suprs. v. Mc-Guien, 15 Hun 551; Havens v. Bush, 2 Johns. 387; Stephenson v. Kleppinger, 5 Watts. 420; Goldsborough v. Orr, 21 U. S. (8 Wheat.) 217; Logan V. Hodges, 6 Ala. 699; Taylor v. Patterson, 3 Ark. 238; Beryman v. Hewitt, 29 Ky. 6 J. J. Marsh 462; McMath v. Johnson, 41 Miss. 439; Robinson v. Harbor, 42 Miss. 795, 97 Am. D. 501; Turner v. Mellier, 59 Mo. 526; Burris v. Schrewsberry Park Land & Improv. Co., 55 Mo. App. 381; Putman v. Mellen, 34 New Hamp. 71; Slocum v. Despard, 8 Wend. 615; Hard v. Sealy, 47 Barb. 428. (4) Where it appears by the terms of the agreement that the performance of one party to precede that of the other, an action can be maintained against him who was to do the first act, although nothing had been done by the other. Meredian Brittania Co. v. Zingenson, 48 New York 247 (8 A. D. 549). (5) One may maintain an action on a contract without having performed a covenant on his part where it goes only to a part of the consideration, and a breach may be compensated in damages, such as a covenant being an independent covenant. Obermyer v. Nichols, 6 Bin. 159 (6 Am. Dec. 439); Quinlin v. Davis, 6 Whart. 169; Adrain v. Lane, 13 S. C. 183. (6) This being a contract for the sale of an interest in lands, must all be in writing. Clearwater v. Tethrow, 27 Mo. 241; Rosenberger v. Jones, 11 Mo. 559; Andrews v. Broughton, 78 Mo. App. 179 ; Cunningham v. Rousch, 157 Mo. 336.</p> <p>(1) (a) Oral testimony is competent to show whether an instrument is in escrow, (b) If instrument is in escrow parol evidence is competent to show conditions on which it becomes binding. Wharton’s Law of Evidence, sec. 930; Underhill on Evidence, sec. 212, p. 311. (2) And oral testimony is competent to show there was no absolute or final delivery by the party sought to be charged. Shelton v. Durham, 7 Mo. App. 585. (3) (a) A written instrument is never delivered until the obligor is divested of all dominion and control over it. (b) Delivery is essential to, and is the crowning act of the execution of a written instrument. There must be mutuality of minds on the delivery and the execution of an instrument as well as to the contents. The courts hold and say that there must not only be a delivery, but an intention to deliver by one having a right to deliver before an instrument becomes binding. Carter v. McClintock, 29 Mo. 464; Ayers v. Milroy, 53 Mo. 516, 521. And the only infallible test of the delivery of an instrument is that the maker parts with the instrument, parts with the dominion and control of it, and it is accepted by the other party. Mudd v. Dillon, 166 Mo. 110, 119; Huey v. Huey, 65 Mo. 689; Hamerslough v. Cheatam, 84 Mo. 1; Abbe v. Justus, 60 Mo. App. 300, 306; Rogers v. Carey, 17 Mo. 232, 234, 235 and 236.</p>

— Hon. E. M. Hughes, Judge. Witness Jno. W. M. Palmer had no interest in the note sued on, was not a party to the note sued on in this cause of action directly or indirectly, therefore does not •come within the provision of the statute. R. S. 1899, see. 4652. Even though the witness, Jno. W. M. Palmer acted as the agent of plaintiff, in receiving the payment of September, 1893, that fact of itself did not disqualify him as a witness.

— Roto. L., B. Woodside, Judge. The demurrer to plaintiff’s evidence should have been sustained for two reasons — the first, there was no evidence that, the fire was communicated by one of defendant’s engines, nor any facts from which such an inference might properly be drawn; the second, his own evidence showed as strong, if not a stronger probability that the fire started from sparks escaping from a “King heater,” through a defective flue, and caught in the paper pasted to…

<p>REPLEVIN: Executory Contract. An agreement to give plaintiff sixteen bushels of wheat out of defendant’s crop, in repayment for that amount borrowed, does not vest title in the plaintiff so. as to authorize an action of replevin, where no wheat was set apart for him under the agreement.</p>

<p>Appeal from Ripley Circuit Court.— Eon. J. L. Fort¡, Judge.</p> <p>Plaintiff failed to prove title in fee or otherwise in himself to the land in his petition described for two reasons, viz.: (.1) The deed from Jacob Yan Wormer to Charles C. Mock vested the title to said premises in said Mock. This is a link in plaintiff’s chain of title, Next plaintiff introduced a deed from Charles C. Mack to Robert Jennison. This was introduced over the objections of appellant. There was no evidence that Charles C. Mack was Charles C. Mock. On this question not a scintilla of evidence was introduced. M-o-c-k and M-a-c-k are not idem soncms. Names are said to be idem sonans if the attentive ear finds difficulty in distinguishing them when pronounced: The names M-o-c-k and M-a-c-k do not have such a similarity of sound, when pronounced, that a difference would not be observed by an attentive ear. M-o-c-k and M-a-c-k do not sound at all alike, and it was not shown by common usage, a different pronunciation of the word M-a-c-k when used as a proper name. Geer v. Lumber & Mining Co., 134 Mo. 85; Wheeler v. Weaver, 93 Mo. 432; Robson v. Thomas, 55 Mo. 582; Simonson v. Dolan, 114 Mo. 179; Chamberlain v. Blodgett, 96 Mo. 482; Black v. The State, 57 Ind. 109; Com. v. Donovan, 95 Mass. 57; Weber v. Ebling, 2 Mo. App. 15; People v. Amenn, 76 111. 188; State v. Havely, 21 Mo. 498. (2) The copy of the will of William Armstrong, which was introduced in evidence over the objections of appellant, did not vest title to the land in question. A copy of a will, or the record thereof, when recorded, is not admissible in evidence. A will or a copy of the record thereof, must be duly probated by the court of the domicile of the testator having jurisdiction to take proof and probate wills, and the probate of a will in a State other than where the land devised is situated must be made according to the laws of the State wherein the land is situated. Keith v. Keith, 97 Mo. 223; Gaines v. Pender, 82 Mo. 497; Van Syckel v. Beam, 110 Mo. 589; 1 Am. Law of Administration (Woerner), 2 Ed., sec. 226; Graves v. Allen, 100 Mo. 300; Graves v. Ewart, 99 Mo. 17; Cabanne v. Skinker, 56 Mo. 357; Story on Conflict of Laws, sec. 474; McComack v. Sullivan, 10 Wheat. 192 and cases cited; Lucas v. Tucker, 17 Ind. 41; Jarman on Wills, 1; 1 Red. on Wills (3 Ed.), 398; Whart. on Conflict of Laws, 587.</p> <p>(1) The evidence in this case clearly shows that plaintiff was, at the date of the alleged trespass, the owner in fee of the land described in this petition, hence he is entitled to recover herein. The defendant’s first point of attack on the record title of plaintiff is a deed from the common source of title Jacob Van Wormer to Charles C. Mock or Mack, dated February 12,1862, and recorded in book “1.” This is a warranty deed in due form. And every presumption of law tends to support its validity. The question as to whether the names Mack or Mock are idem sonans does not enter into this case in view of the record as affected by stipulation printed.on page 2 of respondent’s brief; the judgment of the trial court sitting as a jury is conclusive on the finding of facts. We deem it unnecessary to cite many authorities to support this elementary principle. (2) It is not necessary in order to the admission of the copy of the will that such will shall have been admitted to probate in this State or recorded in said office of such court. The will in this case which was made in Kentucky was held admissible in evidence over the objection that its admission to probate in Kentucky was not sufficiently authenticated. The probate of the will in another State is a judicial proceeding, to the record of which full faith and credit is to be given, when authenticated as required by the act of Congress. Bradstreet v. Kinsells, 76 Mo. 63; Drake v. Curtis, 88 Mo. 644. (3) Under the laws of this State the will could not be filed and recorded in the probate court until proved as required by statute. Section 4632, R. S. 1899. And the probate courts having original exclusive jurisdiction in the matter of wills their judgments can not be attacked collaterally, and their judgments are attended by every presumption as to their force and validity as courts of general jurisdiction. Banks v. Banks, 65 Mo. 432; the fact that a foreign court uniformly exercised jurisdiction over a subject is in tbe absence of tbe proof to tbe contrary evidence tbat the jurisdiction is lawful. Eobertson v. Staed, 135 Mo. 135; Allen v. Sales, 56 Mo. 28. (4) .Every presumption is indulged in favor of tbe regularity and validity of a judgment. Kane v. Mc-Cowan, 55 Mo. 181; Bearden v. Miller, 54 Mo. App. 199. Decrees of courts of sister States are presumptively valid, and tbis presumption must prevail until overcome by proper proof. Atbony v. Eice, 110 Mo. 223,. 19 S. W. 423. (5) Tbe courts of Missouri do not take judicial notice of tbe laws of our sister States, but in tbe absence of proof to tbe contrary, they will be presumed to be tbe same as our own. Selking v. Hébel, 1 Mo. App. 340; Conrad v. Fisher, 37 Mo. App. 371; State v. Baty, 166 Mo. 564.</p>

— Row. J. J. Gideon, Júdge. (1) Defendant contends that under the agreed statement of facts the defendant should have been discharged because the facts set forth in said agreed statement shows the defendant to be a “wine-grower” and the wine sold to be of his own production or make. The agreed statement of facts does not show that the wine sold was any part of the wine produced from grapes not grown upon the premises. 63 Mo. 403; 55 Mo. 67.

— Row. J. L. Fort, Judge. (1) All the evidence goes to show that the defendants were the rankest kind of trespassers; that they were without authority of any kind to cut or take away the timber. There is not a particle of testimony tending in the remotest degree to establish such right.

<p>1. ACCIDENT INSURANCE: Pleadings: Sufficiency of Petition. In an action on an accident insurance policy, wiiere tlie petition alleges that the insured sustained bodily injuries through external, violent and purely accidental causes, resulting in death, in that while he was employed as a bridgeman for a railway company, he “was struck upon the head with some hard substance, inflicting a mortal wound,” the language was precise and full enough to constitute a good averment that the insured met death by an “external, violent and purely accidental cause.” And, though the averment is followed with the allegation: “A more particular description of the circumstances of said accident can not here he given because they are to the plaintiff unknown,” that does not make the petition insufficient.</p> <p>2. -: Burden of Proof. In an action on an accident insurance policy, where the evidence showed an accidental death of the insured, and the defense relied upon was that the liability was only for the minimum rate fixed by the policy, because the deceased met his death from “unnecessary exposure to danger or to obvious risk of injury,” as conditioned in the policy, the burden was on the defendant to show that the insured met his death in a way that would bring into operation the minimum indemnity clause.</p> <p>3. -: Unnecessary Exposure. The evidence showed that deceased, who was stationed at a bridge to flag trains approaching it, went to his station one night and the next morning his body was found a short distance from the track. Blood stains were 'traced from there to the track where his hat was found on the track cut in two. Just before his death and while in a semiconscious state, deceased stated that, he had been struck by the train while asleep. Held, the deceased may or may not have been exposing himself to unnecessary danger, as defined by the terms of the policy, and it was a question for the court sitting as a jury to determine whether he was or not.</p> <p>4. -: -: Declarations of Insured. Where the evidence relied on by the defendant to show that the deceased met his death from having gone to sleep on the track where he was struck by the train, were the statements of deceased made just before his death, when in a semiconscious condition, in answer to suggestive questions which had to be repeated, so that it was doubtful if he understood what was said to him, such statements, do not establish the fact so conclusively as to make it the duty of the appellate court to determine it contrary to the finding of the trial court.</p>

<p>Appeal from Franklin Circuit Court.-r-Hon. Wm. A. Davidson, Judge.</p> <p>(1) The court erred in giving instruction No. 1 .for the plaintiff, (a) This instruction ignores the issue of contributory negligence of the plaintiff in driving on and remaining on the track in front of a moving car, raised by the defendant in the pleadings and brought out by plaintiff’s own evidence. Such instructions are erroneous. Sullivan v. Railroad, 88 Mo. 169 ; Carrico v. Railroad, 14 S. E. 12. Especially is this error, when such issue is not covered properly by other instructions. Schroeder v. Michel, 98 Mo. 43. (b) This instruction singles out certain facts and tells the jury that if they believe these facts then they should find for the plaintiff. Such instructions are erroneous. Chappell v. Allen, 38 Mo. 213; Schaffer v. Lealy, 21 Mo. App. 110; Meyer v. Railroad, 45 Mo. 137. (2) Under the instructions in this case the question of the plaintiff’s negligence was not submitted to the jury. The evidence showed that plaintiff drove on the track from 100 to 225 feet in front of a moving car which he plainly saw, and attempted to cross the track at a slow walk. The question of his negligence under these circumstances was a question for the jury, and should have been submitted to them. Cass v. Railroad, 47 N. Y. Sup. 356; Linder v. Transit Co. (this term of this court); Patterson v. Townsend, 91 Iowa 725, 59 N. W. 205; Lowy v. Railroad, 62 N. Y. Sup. 743; McCormick v. Railroad, 44 N. Y. Sup. 684; Kennedy v. Railroad, 52 N. Y. Sup. 550; Witzel v. Railroad, 52 N. Y. 521; Kerr v. Railroad, 63 N. Y. 310. (3) The court committed error in constantly interrupting defendant’s counsel as he was arguing the case to the jury, and making remarks prejudicial to the defendant in the presence of the jury. 21 Am. & Eng. Ency. of PI. and Practice, 994; State v. Manhattan Rubber Co., 149 Mo. 181; McPeak v. Railroad, 128 Mo. 617; Wright v. Richmond, 21 Mo. App. 76.</p> <p>There is no error in the instructions given by the court in this case authorizing the jury to find the issues for respondent. Sepetowsky v. St. Louis Transit Co., 76 S. W. 696, and cases there cited; Hutchinson v. Railroad, 88 Mo. App. 376; Moritz v. St. Louis Transit Co., 77 S. W. 477.</p> <p>STATEMENT.</p> <p>This, an action for damages for personal injuries sustained by plaintiff in collision between his wagon and an electric car of defendant, on the sixth day of November, 1902, was begun in the circuit court of the city of St. Louis, and upon application of plaintiff for change of venue, transferred to the circuit court of Franklin county.</p> <p>The petition contained averments that plaintiff was driving in a western direction on North Market street, and when he reached the point of its intersection with Fifteenth street and while crossing defendant’s tracks, his wagon was struck by a car travelling northward on Fifteenth street and his consequent injuries were described: the assignments of negligence were negligent and careless management of defendant’s ear by its servants, in failing to exercise ordinary care to keep watch for vehicles crossing said tracks, in failing to give any signal of the approach of the car, and to use ordinary care to stop the car after the danger to plaintiff became apparent, or by exercise of ordinary care, would have become apparent, and by running at a high rate of speed.</p> <p>The defense, coupled with a general denial, the plea of contributory negligence in driving upon the track in front of a moving car, at a time and place when and where, by looking and listening, he might have seen and heard the approaching car in time to have remained off and gotten off the track and avoided the accident, and that he failed to look or listen for the approach of such car, and to heed what he saw, if he did look or listen, and thereby caused his own injuries.</p> <p>The evidence introduced consisted of the testimony offered on part of plaintiff, defendant tendering none. Plaintiff testified that at about half past five o’clock in the afternoon, he was driving a team hauling a heavy wagon west on North Market street and in crossing Fifteenth street was struck by a car north bound; that before starting across Fifteenth street he had looked for ears and saw this car about three-quarters of a block, or 225 to 230 feet distant, at which time, his horses were about five feet from the track; that he saw the motorman was approaching with unabated speed and he whipped up his team to get across; that the tips of his horses’ heads were about twenty-four feet from the wagon end, and the wagon was struck in the rear before it was wholly across. He further deposed that he rode on street cars but not very often, had frequently seen them and could form an opinion of the speed óf a car going between two points; and while it was difficult to determine, the rate of this car was between 10 and 12 miles per hour; that the motorman made no effort to check the speed until about ten or fifteen feet from the wagon and there was no obstruction and he saw the car plainly when he drove on the track. Other witnesses differed but slightly from plaintiff in their description of the occurrence, the estimates of the distance separating the car from the wagon, when the latter was started across the track, varying, and two witnesses, former motormen, testified, one that on a level track a car could be stopped in twenty-five feet moving at a rate of twelve miles per hour, and if the track was slippery, ten feet more would be required, and the other that at rate of twelve miles per hour on a slippery track, thirty-five feet was the least distance in which a car could be stopped.</p> <p>At the close of plaintiff’s testimony the court charged the jury by a series of instructions and those as to the measure of damages, form of verdict and definition of ordinary care, appellant makes no complaint of. The court gave as its first instruction, and at instance of respondent, the following:</p> <p>“1. The jury are instructed that if you believe from the evidence that plaintiff, driving a wagon and! team of horses, drove on the track of the defendant in front of an electric car, provided with brakes and appliances for stopping such car, then being run and operated on said tracks by defendant at a speed of twelve miles per hour, and that plaintiff and said wagon and team being so on said track were crossing the same at a slow walk and were then and there in a place of great danger, and were then and there seen by defendant’s motorman then and there operating said car, to be so on said track and so crossing the same while the said car was at such a distance from plaintiff and from said wagon and team that by the ordinary use of the brakes and other appliances for stopping said car, said car might have been stopped and the striking of said wagon by said car might have been avoided and that said motorman, so seeing plaintiff and being awarei of his situation, continued to run said car toward plaintiff without attempting to stop said car until it was so close upon plaintiff and said wagon that it could not be stopped in time to avoid striking said wagon and injuring plaintiff, and that by reason thereof said car struck said wagon and injured plaintiff as alleged in plaintiff’s petition, then such failure to attempt to stop such car under such circumstances and in the absence of explanation or excuse would be negligence chargeable to the defendant, and if the jury find the facts to be as aforesaid, they should find the issues for the plaintiff.”</p> <p>After, the argument, the following was given of the court’s own motion:</p> <p>“If the jury find from the evidence that the fact that plaintiff drove on the track of defendant in front of a moving car, if you find he did so drive on said track and that was the sole and direct cause of the injury, you will find the issues for the defendant, but if you find that after plaintiff drove on said track defendant’s motorman operating the car saw plaintiff on the track .while the car was at such a distance from plaintiff that he could, by the use of the brakes on said car provided for stopping the same, have stopped the same in time to have avoided injuring plaintiff, and neglected to so stop the car and run the car against plaintiff’s wagon and injured plaintiff, then you can not find that plaintiff’s driving on the track was the sole and direct cause of plaintiff’s injuries.”</p>

— lío#. E. C. Pepper, Judge. Respondent by bis brief still would insist tbat tbe claim of tbe salary of tbe post office was against public policy. There is no longer any question before tbe court on tbis point, since tbe demurrer was sustained and appellant by tbe amended petition has waived any claim based on tbat contention.

— Root. J. T. Neville, Judge. (1) Where there is no evidence of a fact, or no evidence from which a jury can legitimately infer its existence, and the existence of such fact is vital to the case, the court should take the case from the jury, and not allow the jury to infer its existence without evidence. O ’Mally v. Railroad, 113 Mo. 319. The mere proof that an injury has happened, does not authorize submitting the question of negligence to a jury. Murphy v. Railroad, 115 Mo.

<p>MINOR: Choosing Guardian*: Public Guardian and Curator. A minor, whose estate is in charge of the public administrator, and ex-officio public guardian and curator, on attaining the age of fourteen years may choose another guardian and curator under section 3489, Revised Statutes of 1899.</p>

<p>Appeal from Knox Circuit Court. — Hon. E. B. McKee, Judge.</p> <p>(1) The sale of the car load of coal to Frazier was a cash sale. Neither title nor possession, therefore, passed to him until he had made payment, or tender of payment therefor, and he had no right of action for conversion against the defendant. Hall v. Railroad, 50 App. 179; Stresovich & Co. v. Resting, 63 Mo. App. 57; State v. Green Tree Co., 32 Mo. App. 281; Freight and Cotton Press Co. v. Stanard, 44 Mo. 71; Freight and Cotton Press Co. v. Plant, 45 Mo. 517; Kerr v. Henderson, 42 Ath-174; Trust & Savgs.Tnst. v. Paper Mills Co., 43 Atl. 423; Railroad Co. v. Erwin, 9 Am. & Eng. Rd. Cas. 252; 1 Benj. on Sales, secs. 318, 337, 345 and 346; Tiedeman on Sales, sec. 93; Parker v. Rodes, 79 Mo. 88; Meyers v. Hale, 17 Mo. App. 204; Johnson, Brinkman Co. v. Bank, 116 Mo. 558. (2) Title to the coal having remained in the shippers until paid for by appellant, the issuance of the bill of lading conveyed no title to or right of possession of the coal to respondent, and he has no right of action against appellant. Halsey v. Warden, 25 Kan. 128; Bank v. Homeyer, 45 Mo. 145; Valley v. Cerre’s Administr., 36 Mo. 364 (star pages 586, 587); Scharf v. Meyer, 133 Mo. 428; Bank v. Railroad, 62 Mo. App. 538; Bank v. Mc-Graw, 76 Fed. 937; Copland v. Bosquet, 4 Wash. (C. C.) 588; Paul v. Reed, 52 N. H. 136; Cole v. Berry, 42 N. J. Law 308; í)ows v. Bank, 91 U. S. 618; Hutchinson on Carriers, secs. 134,135. (3) The court erred in refusing to give instruction No. 3 as requested by defendant. See authorities under points 1 and 2. (4) The coal was shipped to Frazier with the understanding that the railway company was surety for the payment of the purchase price, and upon payment thereof by the railway company, it became subrogated to all the rights of the vendors and Frazier could not maintain an action against the railway company without payment or tender of payment of the price of the coal. Brandt on Suretyship and Guaranty, secs. 205, 313; Ross v. Menefee, 25 N. E: 545; Mosely v. Fullerton, 59 Mo. App. 143; Bank v. Reed, 54 Mo. App. 94; Clark v. Bank, 57 Mo. App. 283; Furnold v. Bank, 44 Mo. 336; Bertheld v. Bertheld, 46 Mo. 557; ITackett v. Watts, 138 Mo. 518.</p> <p>(1) The evidence unequivocally discloses the fact that the sale of the coal to plaintiff by Lambeth & Son was a time sale, a credit being extended to plaintiff for payment through the verbal indorsement of Yocom— the payment was not to be made until plaintiff received the cost bill from Joseph Lambeth of the firm of Lambeth & San. And Yocum being the agent of plaintiff in the purchase of the coal and plaintiff being perfectly solvent the delivery by Lambeth & Son of the coal at Marceline to the defendant a public carrier, by direction of plaintiff’s agent (Yocum) vested the complete title of the coal in plaintiff. Lindauer v. Maybery, 27 Mo. App. 181; State v. Wingfield, 115 Mo. 428. (2) And upon the delivery of the coal to defendant plaintiff became under the contract of purchase responsible tó Lambeth & Son for the value of same, whether the coal ever reached him or not, and they could on his refusal to pay after receipt of the bill of costs of coal maintained an action against him and recovered the purchase price of the coal. Ozark Lumber Co. v. Chicago Lumber Co., 51 Mo. App. 555; Tufts v. Wynne, 45 Mo, App. 42; Brewington v. Mesker, 51 Mo. App. 348. (3) .And this being an absolute sale there could be no lien for purchase price of the coal. Brown & Wright v. Barnard, 116 Mo. 674. (4) But even if Lambeth & Son had a reserved lien on the coal it would not release defendant or excuse it for its tortious acts in, as plaintiff in his testimony calls it, confiscating his coal as soon as it arrived at its place of destination, and that to without giving him even an opportunity to enter his protest, for defendant had no legal or equitable rights as a public carrier or as a surety that under any circumstances would justify it in converting plaintiff’s coal to its own use. The coal having been delivered to it at Marceline for shipment over its road to plaintiff at Baring it was bound to ship and deliver to him at that place. Miller v. Railroad, 14 Mo. App. 281; Prewet v. Railroad, 62 Mo. 527; Faulkner v. Railroad, 51 Mo. 34; Lander v. Railroad, 50 Mo. 346; Ranken v. Railroad, 55 Mo. 167; Buddy v. Railroad, 20 ÍVIo. App. 206; Gregory v. Railroad, 46 Mo. App. .574, And defendant had no right to detain the coal without plaintiff’s consent. Armentrout v. Railroad, 1 Mo. App. 158; Gantling v. Railroad, 60 Mo. 390. (5) The facts of the conversion being unintentional constitutes no defense. Waverly Co. v. Cooperage Co.-, 112 Mo. 383; Koch et al. v. Branch et al., 44 Mo. 545; Mohr v. Longan, 77 Mo. App. 481, 489; Ess v. Griffith, 128 Mo. 62. (6) The coal having been delivered to defendant by Lambeth & Son at the direction of plaintiff’s agent, Yocum, for shipment to plaintiff who was to pay for same on receipt of cost bill, the possession of defendant was simply that of a public carrier who represented plaintiff and could not conflict with plaintiff’s possession or title and if it were possible to discover any thing in the evidence that would bind defendant for the payment of the coal as a surety for the purchase money when it became due it could not before plaintiff had received the cost bill from Lambeth & Son, or had any opportunity whatever to pay for the coal or the freight charges and before it had paid Lambeth & Son one cent legally converted the coal to its own use. Bank v. Fisher, 55 Mo. App. 51; Missouri Central Lumber Co. V. Stewart, 78 Mo. App. 456; Hearne et al. v. Keath- et al., 63 Mo. 85; Huse v. Ames, 104 Mo. 101. (7) The petition states full facts of conversion, more than wére sufficient. Knepper v. Blumenthal, 107 Mo. 665. Defendant filed no set-off or claim for money paid Landreth & Son. •</p>

— Hon. Geo.- W. T.hornberry, Judge. ■ • - (1) The respondent has waived the question of the insufficiency of the affidavit for appeal, and has entered a general appearance by consenting to two continuances of this cause, in this court.

Louis Circuit Court. — Hew. J. W. Mc-Elhinney, Judge. (1) Plaintiff’s alleged cause of action is barred by the statutes of limitations. R. S. 1899, sec. 4273; Brock-man v. Ritter, 21 Ind. App. 250. The cause of action accrues when plaintiff first had a legal right to sue. Schade v. Gehner, 133 Mo'. 252; Rankin, Jr., v. Schaeffer, 4 Mo. App. 108; Rowsey v. Lynch, 61 Mo. 560; 19 Am. & Eng. Ency. of Law (2 Ed.), 193; Bird v. Railroad, 30 Mo. App. 365; Bunten v. Railroad, 50 Mo.

<p>JURISDICTION: Court of Appeals: Ejectment. An action for the value of improvements, under section 3072, Revised Statutes 1899, is a continuation of the ejectment suit out of which it grows, and the court of appeals has no jurisdiction of the subject-matter.</p>

<p>Appeal from St. Francois Circuit Court. — Hon. Bobt. A. Anthony, Judge.</p> <p>(1) The court erred in allowing Prank Burlbow, one of plaintiff’s witnesses, over the objection of defendant to tell the jury of his having called Sherin’s attention to the fact that deceased Hunt was a green man and that it was not safe for him to work at the ash-pit. Gutridge v. Railroad, 94 Mo. 468; Boettger v. Scherpe, etc., Iron Co., 136 Mo. 531; Langston v. Railroad, 147 Mo. 457; Nash v. Dowling et al., 93 Mo. App. 156; King v. Railroad, 98 Mo. 235. (2) The court erred in allowing Beaumont to state what he thought Sherin meant by certain directions alleged to have been given to him. Pugh v. Ayres, 47 Mo. App. 598. (3) The court erred in allowing witness Longrear over defendant’s objection to tell the jury what had formerly been his custom, as to cleaning the ash-pits and also allowing this witness to tell the jury that it was unsafe to allow Hunt to go into the pit as he did. (4) The court erred in refusing to sustain defendant’s objection to the testimony both at end of plaintiff’s case and at the end of the whole case. Parker v. Railroad, 109 Mo. 362; Poster v. Railroad, 115 Mo. 165; Sullivan v. Railroad, 97 Mo. 113; Sherrin v. Railroad, 103 Mo. 378; Marshall v. Schricker, 63 Mo. 308; Schaub v. Railroad, 106 Mo. 74; Cardv. Eddy, 129 Mo. 510; Hawk v. McLeod, 166 Mo. 121. (5) The court erred in giving plaintiff’s instruction numbered 2, for the reason that said instruction tells the jury that defendant is guilty of negligence and plaintiff entitled to a verdict, provided defendant’s agents (whether vice.principal or fellow-servant) directed Hunt to go into the pit. This instruction is misleading and not cured by any subsequent one. Yoegeli v. The Pickle Mfg. Co., 49 Mo. App. 643; Mansur v. Botts, 80 Mo.-657; McNichols v. Nelson, 45 Mo. App. 446; Carder v. Primm, 60 Mo. App. 423; Linn v. Massillon Bridge Co., 78 Mo. App. Ill; Land & Lumber Co. v. Moss Tie Co., 87 Mo. App. 167. (6) This instruction is further incorrect for the reason that it calls for a verdict of the hypothetical case and at same time in no way calls attention to the proximate cause of the injury. The negligence was clearly not in ordering Hunt into the pit, but in turning the water into the pit, thus generating steam, by which Hunt was scalded. Henry v. Railroad, 76 Mo. 288; Hanlan v. Railroad, 104 Mo. 381; Railroad v. Henderson, 134 Ind. 636; Conger V: Railroad, 86 Mich. 76; Kevern v. Mining Co., 70 Cal. 392; Brown v. Railroad, 20 Mo. App. 226. (7) The evidence does not show Sherin to have been a vice principal. Particularly he was not a vice principal so far as his acts were concerned and hence instruction numbered 5 is erroneous. Rowland v. Railroad, 20 Mo. App. 463; Moore v. Railroad, 85 Mo. 588; Hoke v. Railroad, 88 Mo. 370; Miller v. Railroad, 109 Mo. 356; Garland v. Railroad, 85 Mo. App. 579.</p> <p>(1) It was not error to show that the foreman of the boiler cleaning force was notified that the deceased was an inexperienced man, under the pleadings in this case. Donahoe v. Railroad, 83 Mo. 543. The authorities cited by appellant under its first assignment do not apply to this case. The statement of the witness, Burl-bow, was as to an actual fact and was not opinion evidence. On the other hand, the mill boss, Flack, a witness for defendant, admits that he knew deceased was a new man, and yet’he permitted him to be placed at a dangerous work without instructions or warning. (2) The response of witness Beaumont in answer to the question of counsel as to, what was his understanding of the language of foreman Sherin, directed to him and deceased can in no way prejudice defendant and is not reversible error. Shortel v. City of St. Joseph, 104 Mo. 114; Halliburton v. Railroad, 58 Mo. App. 27. (3) Counsel for appellant misconceives the purport of - instruction No. 3, on the question of assumption of risk, given at request of plaintiff. In any event it is not open to the objection leveled against it. The testimony shows that deceased was inexperienced and knew nothing about the ash-pit, and his only opportunity for knowledge of its condition was during the period he was working at it just prior to his injury. The latter part of this instruction presents this phase of the case to the jury. Halloran v. Iron & Foundry Co., 133 Mo. 407; Watson v. Coal Co., 52 Mo. App. 366; Riechla v. Gruensfelder, 52 Mo. App. 43; Beard v. Car Co., 63 Mo. App. 382. (4) Instruction No. 5 correctly states the rule as to what constitutes a vice principal, and we here again say that under the well-considered cases in this State and by the greater weight of authority, this man, Sherin, was a vice principal or alter ego of the company and performing a duty (in directing the men where- and how to work) that was personal to the company. The superintendent was absent on this occasion, and it is conceded by defendant that Sherin had the right to direct and control the work and show the men where to work and was told by the mill boss on this occasion to scatter his men and get his work done. Bane v. Irwin, 172 Mo. 307; Steube v. Iron & Foundry Co., 85 Mo. App. 640; Cox v. Synite Granite Co., 39 Mo. App. 424; Haworth v. Railroad, 94 Mo. App. 215; Grattis v. Railroad, 153 Mo. 380; Glover v. K. C. Bolt & Nut Co., 153 Mo. 327; Miller v. Railroad, 109 Mo. 345; Dayhaxsh v. Railroad, 103 Mo. 570.</p>

— Eon. J. L. Fort,. Judge. -.. (1) “It is' for the jury, and not for ihe court, to pass on the weight of evidence, where there is any evidence.” This rule has no exceptions, and is as old as the jury system itself. Kelly v. Railroad, 70 Mo. 604; Cook v. Railroad, 63 Mo. 398; St. Vrain v. C. B. L. Co., 56 Mo. 590; Tutt v. Coloney, 62 Mo. 116; Holliday v. J ones, 59 Mo. 484; Richey v. Burns, 83 Mo. 364; Hite v. Railroad, 130 Mo. 140.

<p>1. CRIMINAL LAW: Dramshops: Keeping Open on Sunday: License. In a prosecution against one for keeping a dramshop open on" Sunday, it was -not necessary for the State to show that the defendant had a license as a dramshop keeper.</p> <p>2. -: -: -. Where a witness for the State testified that he entered a back room of the defendant’s saloon on Sunday, with a companion, that the companion went into the front room and returned in a few minutes with a bottle of whiskey, that he saw, through the opening in the partition, several men standing in front of the bar, but did not see them drinking, that he saw a man standing behind the bar, whom he took to be the defendant, this was sufficient evidence to support a verdict of guilty.</p> <p>3. -: -: -: Misconduct of Counsel. Where the prosecuting attorney, in his closing argument, used the following language: “They can afford to pay a fifty dollar fine and then go ahead and sell liquor on Sunday, as they will do,” and the court refused to reprimand him, it was error and justified a remanding of the case for a new trial.</p>

<p>1. EVIDENCE: Peremptory Instruction. The evidence in the case is examined and it is held that a peremptory instruction to find for plaintiff was properly refused.</p> <p>2. -:Defense of Fraud: Burden of Proof Shifted. In an action on promissory notes by the indorsee, where the answer alleged that they were procured by fraudulent representations and without consideration, after defendant proved the fraud, the burden was then shifted to plaintiff to show by a preponderance of the evidence that it was a bona fide holder for value.</p> <p>3. -: -: Notice of Fraud. Notice to the indorsee of a negotiable instrument purchased before maturity, of fraud in its procurement, which would defeat his action against the maker, must be actual knowledge of the fraud; mere knowledge of facts which would put a prudent man upon inquiry is not sufficient.</p>

— How. L. B. Wood-side, Judge. The petition states no cause of action in that it does not allege that plaintiff was the owner of the team alleged to have been damaged. We think this allegation an essential one even under the loose pleadings permissible in a justice’s court.

— How. David H. Eby, Judge. (1) There is no cause of action stated in the petition. The defendant had the right to order constable to garnish the railroad company. It was not for execution creditor to determine debtor’s right to exemption. It is for the debtor to say whether he will waive the right or. insist upon it. Osborne v. Schutt, 67 Mo. 712; State v. Koch, 47 Mo. App. 269.

— -Ucm. J. T. Neville, Judge. (1) The plaintiff should not have been allowed to amend the statement showing that it was a corporation after the trial had begun. Defendant denied his liability for any amount except the $14.32 which amount he tendered in full settlement, which amount was accepted with the conditions offered. Plaintiff can not accept a tender and prescribe terms of acceptance. It could only accept in full settlement or reject and return the amount tendered.

Louis County Circuit Court. — Row. J. W. McElhinney, Judge. • (1) The ordinance when offered was competent, and could not be objected to by defendant, for the reason that its acceptance was pleaded. But plaintiff failed to follow the proof of the ordinance with evidence of its acceptance. Therefore, instructions predicated on the ordinance were erroneous. Holwerson v. Railroad, 157 Mo. 216; Day v. Railroad, 81 Mo.

<p>Appeal from Monroe Circuit Court. — flow. David E. Ely, Judge.</p>

— Now. H. C. Pepper, Judge. (1) It stands uncontradieted that Williams leased to Hyatt and Brown on the twenty-seventh day of January, the land in controversy, and that Hyatt and Brown entered into the exclusive possession thereof on the twenty-eighth of January. This suit was commenced on the twenty-first day of February, 1903. The judgment against Williams must be reversed. Orriek v. Public Schools, 32 Mo. 315.

<p>1. COVENANTS: Dependent and Independent. In an action by the vendee for breach of warranty of title to chattels, a covenant in the contract of sale, binding plaintiff to do certain things, which did not go to the entire consideration and was to be performed at a different time from that of the transfer of title, was an independent covenant, and it was not necessary to plead and prove performance of it in order to recover.</p> <p>2. VENDOR AND VENDEE: Warranty of Title: Notice to Vendee' of Defect. Previous knowledge by vendee of a defect in the title to the property purchased, is no defense to an action on a covenant warranting the title.</p> <p>3. EVIDENCE: Parol Testimony to Vary Written Contract. Parol testimony is not admissible to enlarge or vary the terms of a written contract which is complete within itself.</p> <p>4. -:-: Consideration. Nor is it permissible, under the mask of establishing an additional consideration, to show that a party to it undertook obligations different from those expressed in the contract.</p>

— Hura. J. T. Neville, Judge. (1) Special findings bear the same relation to a judgment that a special verdict bears, and performs the same offices that a special verdict performs. 8 Ency. PI. & Pr., p. 949; Blount' v. Spratt, 113 Mo. 1. c. 55; Nichols v. Carter, 49 Mo. App. 1. c. 405; Bates v: Bower, 17 Mo. 550; Land Company v. Bretz, 125 Mo. 1. c. 423. And they must contain a finding on every material controverted fact necessary to support the judgment. 22 Ency.

<p>Appeal from Pike .Circuit Court. — Hon David H. Eby, Judge.</p> <p>(1) Exhibits “A” and “B” constitute the very foundation of plaintiff’s case. That they are letterpress copies instead of originals, was shown by plaintiff’s witness, Chambers ’ testimony. . Such copies are inadmissible without laying, foundation same as any other copies. Traber v. Hicks, 131 Mo. 180; Greenleaf on Ev., sec. 558; Strain v. Murphy, 45 Mo. 337; Abel v. Strimple, 31 Mo. App. 86; Christy v. Cavenaugh et al., 45 Mo. 375; Blondeau v. Sheridan, 81 Mo. 545. (2) If a non-resident witness whose deposition is taken (as was done here) refused to produce the desired document upon proper request or notice, then secondary evidence of its contents may he introduced. 1 Jones on Ev., sec. 217; Binney v. Bussell, 109 Mass. 55; Fisher v. Green, 95 111. 94. But the undoubted weight of authority is that a letter shown to be in the hands of a third party who is beyond the jurisdiction of the court is secondary evidence and is inadmissible to prove its contents without a showing of a proper and unsuccessful effort to obtain the original. Kirchner v. McLaughlin, 28 Pac. 505. For a full discussion of all the authorities on the point see 45, Central Law Journal, pages 368 to 373. (3) The motion in arrest of judgment should have been sustained for the reason that the jury did not compute the interest which they found to be due as required by law. The calculation of the interest must he made by the jury. Dyer v. Combs, 65 Mo. App. 148; Poulson v. Collier, 18 Mo. App. 604; Byors v. Pryor, 31 Mo. App.. 555.</p> <p>Exhibits “A” and “B” were properly admitted. A notice to produce them was served on appellant, also subpoena duces tecum, and if in his possession it was his duty to produce them. And if they were in the possession of I. C. Shreve, they were beyond the jurisdiction of this court, as it was clearly shown that he was a non-resident at the time this suit was brought, and at all times during its pendency. This being shown, secondary evidence of them was properly admitted. Brown v: "Wood, 19 Mo. 475; Harvey Lumber Co. v. Herriman & Curd L. Co., 39 Mo. App. 220; Brown v. Bailroad, 69 Mo. App. 422; Burton v. Driggs, 20 Wall. (U. S.) 125.</p>

<p>Appeal from New Madrid Circuit Court. — Row. R. G. Riley, Judge.</p> <p>(1) Tbe court erred in overruling tbe objections of tbe defendant to tbe introduction of any testimony because the petition of plaintiff failed'to state a cause of action. Tbe sale of intoxicating liquors is by law illegal, and where a contract conflicts with tbe law and morals of tbe time and contravenes an established interest of society, it is void as being against public policy. Tbe petition on its face discloses tbe illegal and immoral nature of the contract, and that snch contract, even had it been made, was or would have been void, and the petition did not .state a cause of action, and defendant’s objection should have been sustained. Turley v. Edwards, 18 Mo. App. 676; Austin v. State, 10 Mo. 591; Peltz v. Long, 40 Mo. 533; Sumner v. Sumner, 54 Mo. 340. (2) Plaintiff’s petition did not state a cause of action, and •this objection is never waived and is not cured even by a verdict and judgment. Brown v. Shrock, 27 Mo. App. 351. (3) If illegal transactions enter into and constitute a part of the contract they vitiate the whole contract, and there can be no recovery unless the illegal .part can be separated from the other portion, or items of the contract, and under the pleadings and proof this instruction should not have been given. It is not supported by the petition. Pardridge v. Cutler, 104 111. App. 89 ; Bick v. Seal, 45 Mo. App. 475. (4) Under the three grounds set up in the petition the alleged contract was no part of the sale of the property, and clearly fell under the statute of frauds. R. S. 1899, sec. 3418; Attaway v. Bank, 93 Mo. 485; Harrison v. McCluney, 32 Mo. App. 481. (5) Both Mitchell and Brewer testified that Mitchell operated the saloon under the Bran-ham license from September 17, 1901, to November 4, 1901, which was in violation of law, and even if Bran-ham had made such contract, and aside from the contention that such contract could under any circumstances have been legal, and even if the Sul Thompson saloon was opened across the street on October 5, 1901, this instruction certainly declared the law and should have been given. R. S. 1899, sec. 2992; State v. Downing, 22 Mo. App. 504. (6) Branham could not contract to bargain and barter the appetites and morals of the citizens peculiar to that locality, and could not contract to promote the dramshop business of. Mitchell that way. Austin v. State, 10 Mo. 591; State ex rel. Troll v. Hudson, 78 Mo. 302; State v. Hudson, 13 Mo. App. 61; Friend v. Porter, 50 Mo. App. 89. (7) It is an undispitted principle that an action will not lie to recover damages if to do so the plaintiff relies upon or requires aid from an illegal or immoral transaction, or depends upon such a contract. Welch v. Wesson, 6 Gray 505.</p> <p>. (1) No illegality appearing from the contract in this cause or from the evidence necessary to prove it but upon an extraneous fact. The defense was, new matter must have been pleaded in order to he available. • St. Louis A. & M. Ass’n v. Delano, 108 Mo. 217; Munro v. Adler, 86 Mo. 445; School District v. Sheidley, 138 Mo. 690. (2) Appellant urges that the contract is in restraint of trade and opposed to public policy. It is now the rule that agreements in restriction of trade will he upheld when the restriction does not go beyond some particular locality, is founded on a sufficient consideration and is limited to time, place and person. Millinckrodt Chemical Works v. Nemich, 83 Mo. App. 6; Gordon v. Mansfield, 84 Mo. App. 367. (3) It is contended that respondent operated under the Branham license contrary to law and that that fact vitiates the contract. The Branham license was no part of the contract. A party seeking to recover on contract can not be defeated from recovery by reason of illegality in his former conduct when he can make out his cause independently of his illegal conduct. Roselle v. Beckman, 134 Mo. 380; Karum M. P. Co. v. Wayland, 81 Mo. App. 305.</p>

— lío». E. B. McKee, Judge. (1) The court erred in overruling defendant’s motion to excludelhe testimony of witness, Mr. Brown, in re-cross examination, as to the milking of the cows and the work that Mrs. Briscoe may have done and performed around the house; and asked to he stricken out because incompetent, irrelevant and immaterial. The court erred in giving instruction “A” on its own motion, because it does not correctly declare the law.

— -How. H. G. Pepper, Judge. (1) The determination of the amount of the loss or damage by agreement of the parties or by award of appraisers was, under the policy sued on, a condition precedent to the maturity of the claim and to the right of the plaintiff to sue thereon. Murphy v. North Brit: ish, etc., Ins. Co., 61 Mo. App. 323; McNees v. Ins. Co., 61 Mo.

<p>1. CIVIL DEATH OF CONVICT: Right to Sue One Convicted of Crime. The civil death which attaches, under section 2382, Revised Statutes of 1899, to a person convicted of an infamous crime, destroys his right to sue or make contracts, but does not protect him against the suits of others.</p> <p>2. -: -: DIVORCE. Section 2921, Revised Statutes of 1899, which makes conviction of an infamous crime a ground for a divorce, presupposes the right of the innocent party to sue the convicted one.</p> <p>3. --: -: Courts Should Protect Defendant. The courts should protect the rights of a defendant so disabled, and it would be proper to appoint some attorney to look after his interest; especially if property interests are involved.</p>

— How. W. N. Evans, Judge. The court erred in refusing to sustain defendant’s motion for judgment on the verdict in his favor for the $71,0, found to be due and owing defendant, there being absolutely no evidence in favor of plaintiff’s claim. Appellant has no cause for contention — no valid right to appeal — and there is nothing in this court to determine, except to affirm the judgment of the trial court. Appellant filed his set-off and obtained judgment for all he claimed.

— 'Hon. L. B. Wood-side, Judge. (1) The petition of plaintiffs states that the certificate was issued to Henderson on condition (among others) that he comply with the rules and regulations then governing the circle and the benefit fund, and that might thereafter be adopted by the supreme circle to govern said circle and fund.

<p>Appeal from St. Charles Circuit Court. — Hon. E. M. Hughes, Judge.</p> <p>(1) There was no evidence that any medicines for plaintiff’s wife had been bought or paid for, and the court committed error in submitting to the jury that element of damage in the instruction. McLean v. Kansas City, 81 Mo. App. 72. (2) The testimony of plaintiff and that of the physician, which was the only testimony on the subject of medical services, shows that the physician’s bill was for ,$250.00 and was secured by a note, due after the trial, which had not been paid. The doctor said that his charges were $250.00, but neither he nor any other witness testified to the reasonableness of the charge, nor was there any testimony offered concerning the value of his services. Plaintiff testified that he was out, in actual cash money, about $310.00, but he included the $250.00 note in that estimate. The jury was not required to find, nor was there any evidence from which they could find, that the amount of the doctor’s bill, to be paid after the trial, was reasonable. The reasonableness of the charge is a fact to be determined by the jury from the evidence, as any other fact in the case. Duke v. Railroad, 99 Mo. 347; Smith v. Railroad, 108 Mo. 251; Morris v. Railroad, 144 Mo. 500; Robertson v. Railroad, 152 Mo. 382; Rhodes v. City of Nevada, 47 Mo. App. 499; Culbertson v. Railroad,. 50 Mo. App. 556; State ex rel. Rogers v. G-age Bros. & Co., 52 Mo. App. 464. (3) Said instruction is further erroneous in directing the jury to include in their verdict “the reasonable value of his time, expended by him in necessary and personal care and attention” to his wife after her injury. The petition specifies minutely and at length all of the items of damage for which plaintiff asks compensation, but the value of his time lost in attending his wife is not included in his demand. Mabrey v. Gravel Road Co., 92 Mo. App. 606-607; Wolfe v. Supreme Lodge, 160 Mo. 675; Price v. Railroad, 72 Mo. 414; Glass v. Gelvin, 80 Mo. 297; Null v. Railroad, 97 Mo. 68; Tetherow v. Railroad, 98 Mo. 74; Bender v. Dungan, 99 Mo. 126; Squire v. Brewing Co., 90 Mo. App. 462.</p> <p>(1) ' The entire facts in evidence and the proof (admitted without objection) of $4 of expense, incurred by plaintiff by reason of his wife’s injury, and not otherwise accounted for, warrant the inference that said item of expense was for medicines, under the rulings in Missouri that where proof of certain facts of injury or damage fairly permit the inference of other features of such injury or damage the latter may properly be inferred from the former. Dunn v. Railroad, 81 Mo. App. 41; Mabrey v. Road Co., 92 Mo. App. 596; Butts v. Bank, 72 S. W. 1083; Moore v. Railroad, 73 Mo. 438. (2) This case falls directly in reach of the rule laid down by the Supreme Court to the effect that an erroneous instruction as to the elements of plaintiff’s damage is not reversible error if the damages awarded are reasonable in amount. Sherwood v. Railroad, 132 Mo. 339. (3) For stronger reason than the one given in the last cited case, a verdict for less than the amount of actual damages proved by undisputed evidence could not properly be held erroneous on the flimsy contention that another item of damage, not mentioned expressly in the evidence, was inadvertently referred to in an instruction. Link v. Prufrock, 85 Mo. App. 618. Blewett v. Railroad, 72 Mo. 584; Brandon v. Carter, 119 Mo. 572; Farris v. Railroad, 51 Mo. App. 297; Heil v. Railway, 16 Mo. App. 363. (4) Where evidence is admitted without objection, even if it be of damages or other facts which should be specially alleged, the want of an objection makes the proof admissible, and there is then nothing to form the basis of a reversal. Only exceptions' taken to evidence at the trial are reviewable on appeal. Evidence which is not objected to is before the court for any proper use it may have as proof. R. S. 1899, sec. 864; Mellor v. Railroad, 105 Mo. 462; Lumber Co. v. Rogers, 145 Mo. 445; Faber v. Railroad, 139 Mo. 272; Freiermuth v. McKee, 86 Mo. App. 64; Caris v. Nimmons, 92 Mo. App. 66. (5) Where a note is received as payment of a demand, by consent of the parties, it then constitutes evidence of payment as between them. Block v. Dorman, 51 Mo. 31; Rich v. Dudley, 34 Mo. App. 383; O’Bryan v. Jones, 38 Mo. App. 90. (6) Testimony of the price paid for personal property is prima facie evidence of its reasonable value; and the same principle applies to the payment of a bill for services rendered. The payment as aforesaid by plaintiff of the bill rendered by the doctor for his services is evidence of the reasonable value thereof on the theory of law just stated. Campbell v. Woodworth, 20 N. Y. 499; Hoffman v. Conner, 76 N. Y. 124; Hawner v. Bell, 141 N. Y. 140. Those propositions are both decided and assumed in many decisions of our own courts. Craighead v. Wells, 21 Mo. 408; Robertson v. Railroad, 152 Mo. 390; Culberson v. Railroad, 50 Mo. App. 560; Keiser v. Gammon, 95 Mo. 217; Stevens v. Springer, 23 Mo. App. 375. ■ (7) The value of time necessarily given in attending upon one’s wife because of the negligence of defendant is a legitimate item of damage, and if admitted without objection, it is wholly immaterial whether the petition specifically charged this item or not, as it is clearly within the general demand of three thousand dollars for the total damages to plaintiff. General allegations of damage or of negligence are sufficient if evidence thereof (which might require special allegation) comes in without objection made at the time .it is introduced. Smith v. St. Joseph, 55 Mo. 459; Blair v. Railroad, 89 Mo. 339; Dlauhi v. Railroad, 139 Mo. 291; Chouquette v. Railroad, 152 Mo. 257. (8) Unless objection is made when evidence as to damages is admitted at the trial, it is immaterial whether snch evidence shows that expenses which constitute the damages were paid by plaintiff or were merely incurred by him as a liability. Hannon v. Transit Co., 78 S. W. 138; Gorham v. Railroad, 113 Mo. 408; Flanagan v. Railroad, 83 Iowa 639.</p>

<p>Appeal from Douglas Circuit Court. — Hon. G. W. Thornsberry, Judge.</p> <p>The school district being the real party in interest the suit should have been instituted in its name, and the respondents can not maintain this action. School District v. Smith, 90 Mo. App. 215; State to use of Public Schools v. Crumb, 157 Mo. 545. The government in control of a school district is vested in the board of directors, and they have the sole power to act in behalf of the district. R. S. 1899, sec. 9759.</p>

— Hon. G. W. Thorns-berry, Judge. Defendant’s answer to plaintiff’s statement before the justice of tbe peace, was not a counterclaim, and could not preclude plaintiff from dismissing its suit against defendant. R. S., sec. 605 and sec. 4499; Heman v. McNamara., 77 Mo. App. 1; Zerbe v. Railroad, 80 Mo. App. 414.

<p>1. RAILROADS: Crossings on Private Property. Section 1105, Revised Statutes of 1899, imposes the duty on a railroad company of building crossings for the convenience of proprietors, through whose farm its line runs, and a “crossing” includes not only that portion of the earth’s surface immediately by and between the rails, but the approaches on both sides of the track.</p> <p>2. -: -: Approach to Crossing. Under section 1105, Revised Statutes of 1899, the owner of a farm through which the railroad right of way runs, after due notice, can recover from the railroad company the cost of constructing a bridge as an approach to a crossing, where the railroad company has already constructed fences, gates, and laid planks on either side of the rails at that point.</p>

<p>LANDLORD AND TENANT: Purchase of Crop: Notice.. Under section 4123, Revised Statutes of 1899, a landlord, whose rent has not been paid, may recover against the purchaser from his tenant the value of the.crop sold, where the purchaser knows the crop was grown on demised premises, although he had no notice that the rent was unpaid.</p>

— Ho®. John P. Butler, Judge. (1) To make out plaintiff’s case under the pleadings, he was required to, and proved the following facts: (а) The payment to Orear, the assignee and holder of the note the amount of the deed of trust deht. (b) Payment of the fee for release of the record, (c) The request for release more than'thirty days, before bringing his suit. Dawson v. Clark, 49 Mo. App. 148; Hanson v. Stever, 69 Mo. App. 136; Dunkin v. Ins. Co., 63 Mo.

— Bo». B. C. Tvmmonds, Judge. (1) The demurrer to the evidence should have been sustained (a) because the alleged failure to give the signals was not the cause of the accident; (b) deceased’s own negligence precluded a recovery.

— Ho», Andrew F. Evans, Judge. (1) The court erred in admitting any evidence under the pleadings. The petition does not state facts sufficient to constitute a cause of action against the defendant. Ency. Pleading and Practice, vol. 13, p. 907; Waldhier v. Railway, 71 Mo. 516.

— Hon. George F. Long an, Judge. (1) A paper produced from the files of the city clerk, and purporting to be a remonstrance against a street improvement, and purporting to be signed by forty-three persons, does not prove itself, and is not competent evidence that the persons whose names appear thereon ever signed the paper or authorized any other person to sign for them; and is not competent evidence that such persons own property abutting upon the street improved and liable…

Cass Circuit Court. — Wm. L. Jcurrott, Judge. Upon the proposition that the plaintiff can not recover in this case for the reason that the defendant was in no way at fault itself, and could not have anticipated the act of a third party in interfering with a window in an otherwise safe and proper condition, and that the accident was the result of the independent act of a third party which was the proximate cause of the accident, •we invite the court’s reading of the following…

— Mon. Samuel Davis, Judge. (1) A city is not liable merely because a sidewalk is defective. To create liability it must be not reasonably safe. Blake v. St. Louis, 40 Mo. N69; Bonine v. Richmond, 75 Mo. 437; Robertson v. Railway, 152 Mo. 389; Carvin v. St. Louis, 151 Mo. 334; Warren v. Independence, 153 Mo. 593; Smith v. Brunswick, 61= Mo. App. 578; Wallis v. Westport, 82 Mo. App. 522. (2) The city is not liable merely because ice on its walk is rough and uneven.

Cooper Circuit Court. — Hon. James E. Haeell, Judge. (1) The trial court committed error in sustaining motion to strike out plaintiff’s amended statement. . It was specific and fully advised defendant of all the facts constituting plaintiff’s cause of action. Busch et al. v. Diepenbrock, 20 Mo. 568; May et al. v. Kloss, 44 Mo. 300.

— Hon. James E. Hasell, Judge. (1) When one party voluntarily pays the debt of another he; can only recover of the party for whom he paid, in the way and manner and under the circumstances and showing as enunciated, contemplated and declared in instructions 6 and 8, as they read before the modifications and changes therein were made by the court. Watkins v. Richmond College, 41 Mo. 303; Morley v. Carlson, 27 Mo. App. 5; Heege v. Fruin, 18 Mo. App. 139.

— Ho». John P. Butler, Judge. If plaintiff’s original petition had not been dismissed, its replication and counterclaim would probably not have authorized the recovery of judgment against defendants but would have only extinguished their demand. Pattison’s ‘ ‘ Missouri Code Pleading, ’ ’ sec. 766; Coombs Co. v. Block, 130 Mo. 668. (1) Plaintiff can not recover on a canse of action which is stated only in his reply, and not stated in his original petition.

<p>1. JUSTICES’ COURTS: Replevin: Jurisdiction: Residence. A. justice of the peace has no jurisdiction to replevin property in his township where both parties are non-residents of. his county; and under section 4486, Revised Statutes 1899, the jurisdiction in such case is alone in a court of record.</p> <p>2. JURISDICTION: Appearance. Where a court has no inherent jurisdiction of the subject-matter the appearance of the parties at the trial will not confer such jurisdiction.</p>

— Eon. John A. Hochaday, Judge. (1) The order of the prohate court was authorized by section 130, R. S. 1899, and its effect was to place plaintiff in control of the real estate of the estate of James H. Portér, deceased, during two years, unless the debts of the estate were sooner paid. (2) The order of the probate court authorized plaintiff to maintain ejectment for the possession of the land. Hall v. Bank, 145 Mo. 418; Bealy v. Blakes, Admr., 70 Mo.

— Row. John A. Eockaday, Judge. (1) The trial court’s second conclusion of law, it being the third paragraph of its special finding of law and fact, is illegal and erroneous. The court finds as a matter of law that it was the duty of the engineer operating the train that killed the mnles, to have used all effort and skill to have stopped the train and avoid striking and killing the mnles, after he saw them ahead of him on the track. Spencer v. Railway, 90 Mo.

— How. Argus Cox, Judge. (1) When an action is brought on a contract, a performance of its terms in every essential particular must be shown, before a recovery can be sustained. March v. Richards, 29 Mo. 99; Eyerman v. Cemetery Ass’n, 61 Mo. 489. Plaintiff must allege and prove performance on his part of the whole contract. St. Louis v. McDonald, 10 Mo. 609; Billups v. Daggs, 38 Mo. App. 367.

— Row. W. B. ■ Teas dale, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence and in giving plaintiff’s instructions 1 and 3. Neither allegation nor proof warranted plaintiff’s first instruction. Plaintiff’s opportunity to know of the risk and danger is as strong as actual knowledge thereof, and bars a recovery. 4 Am. and Eng. Ency. of Law, 29-30; Beach, Contrib.

— Ho». J, D. Perkins, Judge. (1) “When counsel, in argument to a jury, attempt to make a case which they would not be allowed to establish by evidence, their conduct, if objected to at the time and allowed to pass unrebuked, is ground for a new trial.” Norton v. Railway, 40 Mo. App. 642; McDonald v. Cash, 45 Mo. App. 66; Gibson v. Viebig, 24 Mo.

— No». Argus Cox, Judge. (1) Defendants’ interpretation of the release, and their understanding of the agreement was known to the plaintiff and her attorneys immediately after the settlement, notwithstanding, she never returned or offered to return the $510 paid as a consideration of the compromise, or even as much as tendered a return in her replication, although she does admit therein that she made a settlement of the case.

Original Proceeding in Mandamus. (1) All requirements of the ordinances of the said city of -Edgerton having been complied with by relator, mandamus will lie to compel the issuance of the license. State ex rel. Baker, 32 Mo. App. 98; State ex rel. Ruark, 34 Mo. App. 325; State ex rel. Chase, 42 Mo. App. 352; State ex rel. Cook, 174 Mo. 120, 121; St. Louis v. Weitzel, 130 Mo. 602, 620; St. Louis v. Mfg.

— Row. John A. Eockaday, Judge, (1) There was no proof that the horse in question was frightened by an engine and by reason of such fright ran into the fence and was killed. Briggs v. Railroad, 111 Mo. 168-175; Perkins v. Railroad, .103 Mo. 52; Yeager v. Railroad, 61 Mo. App. 594. (2) All the evidence shows that the plaintiff’s horse passed onto the railroad from the pasture of one Lusk, and there was no proof that the horse was in the pasture by Lusk’s permission.

Court.— Hon. John A. Hockaday, Judge. (1) The gist of the cause of action alleged is an express contract. Plaintiff can not enlarge his cause of of action by resort to general words in the petition, but will be confined to the specific allegations. Huston v. Tyler, 140 Mo. 263.

— Hon. Wm. L. Jarrott, Judge. (1) The court erred in overruling defendant’s objection to any evidence under the petition. There was no statutory or other cause of action stated in petition. Barker v. Railroad, 91 Mo. 86; Oats v. Railway, 104 Mo. 514; Hickman v. ¿ansas City, 120 Mo. 110; Utley v. Hill, 155 Mo. 273; McIntosh v. Railroad, 103 Mo. 131; Poor v. Watson, 92 Mo. App. 89; Holverson v. Railway, 157 Mo. 251; Fusz v. Spaunhorst, 67 Mo. 256; Dunn v. Sanders, 48 Mo.

— Hon. John P. Butler, Judge. (1) Defendant corporation-was legally authorized and licensed to establish its brick plant, and to manufacture, burn and sell brick; the plant is established on the company’s own ground. The trial court overlooked or disregarded the well defined legal distinction between acts done under authority, permission or license of the law, and acts done by one not so authorized.

— Ho». Argus Coco, Judge. (1) The contract sued on is without consideration. It is void, because illegal and against public policy. Where plaintiff’s own evidence shows the transaction to be illegal or against public policy, he can not recover. Parsons v. Randolph, 21 Mo. App. 353; Harrison v. Mc-Cluney, 32 Mo. App. 481; Woods v. Mosier, 22 Mo. 333; Lawlin v. Bradley, 13 Mo. App. 361.

— Row. Rolcmd Hughes, Special Judge. (1) The court erred in admitting exhibits “Agy” ■and “bgy” as a contract binding appellant. (2) The •court erred in ruling that a person could become a member by process of an attached “rider” to another ■society’s certificate.. (3) 'The court erred in admitting the alleged letter of Mr. Taylor in evidence. (4) The so-called “rider” contract; even if it could be made, was never completed by Mrs. Weber, and the court erred in .admitting it.