Volume 105 — Missouri Appeal Reports

— No». George F. Long an, Judge. (1) The court erred in giving the peremptory instruction asked by plaintiff, but should have given the instruction asked by defendant. A general denial in an action on a promissory note by an alleged indorsee thereof puts in'issue the plaintiff’s title to the'note and the genuineness of the indorsements. The plaintiff offered no proof of the indorsements on the back of said note and said indorsements were not read or exhibited to the jury.

- — How. W. W. Graves, Judge. (1) If a creditor lead a surety to believe the debt is paid, and the surety is injured, he is discharged. Brandt on Suretyship and Guaranty (2 Ed.), sec. 245. (2) The surety who is a joint maker, or promisor, is discharged, if the creditor does not sue the debtor in a reasonable time, and the debtor becomes insolvent in the meanwhile. Pain v. Packard, 13 Johns. 174, 17 Johns. 384.

— Hon. J. D. Perkins, Judge. (1) The act of Frantz in throwing the block into the car which was being loaded with the tools and appliances to be taken down into the mine, was the act of a fellow-servant. Gall v. Beekstein, 173 111. 187; Hawk v. Lumber Co., 166 Mo„ 121. (2) The admission in evidence of the remarks of Frantz, after the tossing of the block into the car, to the effect that “the dam------will have to learn to dodge,” was erroneous as not part of the res gestae.

— Eon. J. D. Perkins, Judge. (1) The suit was not for trial at the December term of the court and the court should not have dismissed the same, against the objection of the appellants. R. S. 1889, sec. 2042; Matingly V. Bosley, 2 Mete. (Ky.) 443; Gray v. Yiers, 33 Md. 18; Clapp v. Ranch, 90 111. 468; Osgood v. Grant, 62 N. W. (Neb.) 894; Coler v. Lamb (Sup.), 46 N. Y. 117, 19 App. Div. 236; King v. Meyer, 24 S. E. (Ga.) 32; Harris v. Anthony Salt Co., (Kan. Sup.) 45 P. 58.

Original Proceeding in Mandamus. (1) The levying of a license tax upon merchants of the city is not an “annual assessment” of the city: “An assessment consists in the two processes of listing the persons, property, etc., to be taxed and of estimating the sums which are to be the guide to an apportionment of the tax between them.” Cooley on Taxation, 351. There can be no apportioning and assessing of taxes on merchants’ valuations.

— How. A. D. Burnes, Judge. (1) The court erred in refusing the demurrer to the evidence. The mortgage under which interpleaders claim title is void as against appellant. Sanford v. Wheeler, 33 Am. Dec. 389; Ayers v. Husted, 15 Conn. 513; Bramhall v. Flood, 41 Conn. 71; Pattison v. Létton, 56 Mo. App. 325; Mokaska Mfg. Co. v. Steele, 36 Mo. App. 496; Bank v. Lime Co., 43 Mo. App. 496; Galhreath v. Cook, 30 Ark. 417.

— Ho». W. W. Graves, Judge. (1) “It is the visible occupancy of the premises as the head of a family at the time of the levy of the writ which fixes the homestead rights.” Brewing Ass’n v. Howard, 150 Mo. 451; Barton v. Walker, 165 Mo. 30; Finnegan v. Prindeville, 83 Mo. 517; Goode v. Lewis, 118 Mo. 357; Tennent v. Pruitt, 94 Mo. 145; Rouse v. Catón, 168 Mo. 296. (2) Our homestead statute is transplanted from Vermont.

APPELLATE AND TRIAL PRACTICE: Weighing Evidence: Court’s Discretion. When there is substantial evidence to sustain a verdict the appellate court will not weigh it; that is the duty of the jury and the trial court. The trial court has a wide range of discretion, which will not be supervised except in eases of clear abuse. (Cases considered.) Appeal from Vernon Circuit Court. — How. II. G. Timmonds, Judge.

Buchanan Circuit Court. — U (1) Under the statute, Revised Statutes 1899, sec. 5661, locally known as the Haynes law, and being the same act found in Laws 1899, p. 79, the power of the council to charge defendant’s property depends upon a service upon him by five days’ publication of the proposed ordinance. This is not five days’ notice. This publication is in the nature of process, and service can not be made on Sunday. Sunday can not be counted as a publication day.

— No». Gallatin Craig, Judge. (1) The court erred in giving plaintiff’s instruction No. 1. First, because it is a comment on the evidence; second because it submits to the jury the question of negligence based solely upon the theory that the jury could find negligence on the part of defendant if it failed to protect the street by guard rails and by placing lights along the streets.

<p>1. PRINCIPAL AND AGENT: Fraud: Liability. Tie principal need not authorize the agent to practice a fraud on a third party, yet, if he authorizes his agent to transact business with a customer and in so doing the agent practices the fraud on the customer the principal is liable.</p> <p>2. -: -: Extent of Authority. If the customer knows the agent’s authority is in writing he should look to the writing to ascertain its extent; but where the principal represents to him that the agent has certain authority the customer is not bound by the writing.</p>

— Row. J. D. Perkins, Judge. (1) The facts stated in the petition exclude all the contingencies under which an administrator de bonis non may be appointed, and, therefore such an administrator can not be appointed. R. S. 1899, sec. 46; Graystone v. Weddell, 63 Mo. 539.

— ífow. J. D. Perkins, Judge, (1) Absolute safety is unattainable, and employers are not insurers. Courts should not set up a standard which will “in effect” dictate the customs or control the business of the community. Minnier v. Railway, 167 Mo. 120; Brown v. L. & L. Co., 65 Mo. App. 165.

— Eon. J. E. Slover, Judge. (1) At the close of the evidence, the record shows that the case was submitted to the court upon the request made by the defendant for the court to find and declare that under the law and the evidence, the plaintiff was not entitled to recover. Upon what theory of the law, or upon what view of the facts the trial court proceeded, can not now be ascertained.

— Eon. J. E. Eaeell, Judge. (1) The plaintiff was a trespasser on defendant’s tracks. Under such circumstances, she was not even a licensee, but a naked trespasser. R. S. 1899, sec. 1105; Hyde v. Railway, 117 Mo. 202; O’Donnell v. Railway, 7 Mo.

— Hon. W. A. Davidson, Judge. (1) Defendant contends that a dividend of five per cent conld not have been paid ont of the net earnings of the previous year, after setting aside ten per cent thereof as required by law; that the directors did not pretend to set aside anything to the surplus fund before declaring the dividend, and that such dividend was declared contrary to the provisions of sec. 1293, R. S. 1899; and that the court by refusing declaration of law numbered 6,…

— Hon. W. W. Graves, Judge. (1) The evidence in no sense supports the verdict. Even if Burgin had been Mrs. Jones’ agent to sell said farm and Burgin had come to Missouri and employed Hurt and Hurt had procured Hess, the purchaser, and Mrs. Jones conveyed to Hess, still then Hurt would have no cause of action against Mrs. Jones. Hanback v. Corrigan, 54 Pac. 129; Homan v. Ins. Co., 7 Mo. App. 22; Hill v. Morris, 15 Mo. App. 322.

— Hon. Andrew F. Evans, Judge. (1) The court erred in refusing to permit defendant to prove that said note and deed of trust were given wholly without consideration. Section 645, Revised Statutes 1899. This section was 2090 in the revision of 1889, and section 3725 in the revision of 1879, and section 24, page 686, General Stat. 1865, and section 24, page 1290, Revised Statutes 1855.

— No». H. C. Timmonds, Judge. (1) Defendant’s demurrer at the close of plaintiff’s evidence should have been sustained and the instruction directing a verdict in its favor should have been given. Erwin v. Railroad, 94 Mo. App. 289; Hartley v. Street Railway, 148 Mo. 141; Scott v. Dock Co., 10 Jur. N. S. 1108; Guffy v. Railroad, 53 Mo. App. 469; Wait v. Railroad, 165 Mo. 612; Hite v. Street Railway, 130 Mo. 133; Holt v. Railroad, 84 Mo.

— Ron. Wm. L. Ja-rrott, Judge.. (1) The law is well settled in this State that pleadings shall be strictly construed against the pleader. Snyder v. Free, 114 Mo. 367; Overton v. Overton, 131 Mo. 566; Young y. Schofield, 132 Mo. 661; Bales v. Bennington, 141 Mo. 581; Sidway v. Railway, 163 Mo. 372. (2) It is equally true that the plaintiff is bound by the allegations of his petition.

— How. J. P. Butler, Judge. (1) Defendant asked but one instruction, which was a peremptory instruction to find for the defendant. This instruction should have been given. The defendant is a Farmers’ Mutual Fire and Lightning Insurance Company incorporated under article 10 of chapter 119, Revised Statutes of Missouri, 1899, Being a corporation so organized and existing, it is exempt from the provisions of chapter 119, applicable to general insurance companies.

Dade Circuit Court. — Hon. H. C. Timmonds, Judge. (1) Mr. Reynolds, general manager of and for the mill company, through whose hands all its business passed, and who looked after its insurance matters, as he did all other business transactions, was clothed with authority to legally represent it in the transactions out of which this suit grew, and his acts in those transactions, were the acts of the mill company, valid and binding upon it. Gentry v. Ins. Co., 15 Mo.

— Hon. Samuel Davis, Judge. (1) The petition does not state facts sufficient to constitute a cause of action.

— Hon. J. D. Perkins, Judge. (1) There was no evidence to warrant the submission of the case to the jury and the court should have given the peremptory instructions asked by the defendant. Electric Illuminating Co. v. Patt, Admx., 84 Ya. 747. (2) The defect, if any, was as clear and obvious to plaintiff as to defendant, and no negligence can be predicated thereon. Berning v. Medart, 56 Mo.

— How. J. E. Hassell, Judge. The respondent submits that the appellant’s abstract does not comply with rule 15 of this court in this that it does not contain a clear and concise statement of the pleadings and facts shown by the record therein.

— Ho». J. D. Perkins, Judge. (1) A customer is liable for bis overdraft to a bank. 1 Morse on Banks and Banking, section 360, (4 Ed.); Adams v. Bank, 23 L. R. A. Ill; Zane on Banks, 276. (2) An agent to do acts of a class is a general agent. As in this case to sell, collect, pay debts and remit to principal. Cross v. Railroad, 71 Mo. App. 585; s. c., 141 Mo. 132; Mabray v. Shoe Co., 73 Mo. App. 1.

— Hon. J. H. Slover, Judge. • (1) Plaintiffs instruction No. 1 does not require the jury to find that defendant was negligent, that is, that defendant had reasonable time and opportunity to repair the walk after knowledge of the defect, but failed to do so. Bonine v. Bichmond, 75 Mo. 437; Bichardson v. Marceline, 73 Mo.

— Ron. W. B. Teasdale, Judge. (1) To establish his right and title to the goods attached the interpleader must prove that the receipts of the warehousing company offered in evidence by him possess all the requisites of warehouse receipts as recognized and defined in the law. The mere indorsement and delivery of the receipt of an ordinary bailee does not transfer the title or tbe possession of the goods described as against creditors.

— Hon. H. G. Timmonds, Judge. (1) The letters of defendant, marked exhibits “ C’’ and “D” were not admissible in evidence in this case. These letters were written from two to four years before the date of the contract sued on, if it be conceded such contract was ever entered into.

— Hon. E. P. Gates, Judge. (1) It is difficult to understand on what theory the court could rightly sustain the demurrer to the evidence in this ease. (2) “A demurrer to the evidence admits every reasonable inference favorable to the plaintiff.” Creighton v. Modern Woodmen, 90 Mo.

— Hon. J. II. Slover, Judge. (1) Plaintiff’s instructions 3 and 4 are erroneous, in that they declare as a matter of law that in this case a failure to erect barriers or signals was negligence. For this error this case should be reversed. Campbell v. Stanberry, 85 Mo. App. 159; Staples v. Trenton, 69 Mo. -592; Loewer v. Sedalia, 77 Mo. 445; Chicago v. Baker, 195 111. 54; O ’Malley v. Parsons Borough, 191 Pa. St. 612.

— lion. J. E. Slover, Judge. (1) There is nothing better settled than that, in this State, nothing can be taxed as costs except what is specially provided by the statute. Steel v. Wear, 54 Mo. 531; Shed v. Railroad, 67 Mo. 687; Houts v. Mc-Cluney, 102 Mo. 13. (2) All statutes relating to costs must be strictly construed. Murphy case, 22 Mo. App. 476; Ford v. Railroad, 29 Mo. App. 616; Green case, 40 Mo. App. 491; Ring v. Paint and Glass Co., 46 Mo.

— Hon. Geo. F. Longan, Judge. (1) The court erred in refusing the defendant’s first instruction in the nature of a demurrer to the evidence. Because the allegations of the complaint bring the case clearly within the provisions of section 4131 of the statute of 189-9. Revised Statutes 1899, secs. 4131, 4136, 4137 and 4138; Duke v. Compton, 49 Mo. App. 310; Winkelmeier v. Katzenburger, 77 Mo. App. 220.

— Ho». John W. Mc-ElMnney, Judge. (1) The court erred in overruling the application for a continuance filed by the appellants in this case. R. S. 1899, sec. 682; Tunstal v. Hamilton, 8 Mo. 500; Barnum v. Adams, 31 Mo. 532; State v. Lewis, 74 Mo. 222; State v. Anderson, 96 Mo. 241; State v. Maddox, 117 Mo. 667; Alt v. Grosclose, 61 Mo. App. 409; Shoe Co. v. Hilig, 70 Mo. App. 308; State v. Dewitt, 152 Mo. 85; Campbell v. MeCaskell, 88 Mo. App. 47.

<p>Appeal from Dade Circuit Court. — Hon. H. G. Timmonds, Judge.</p> <p>(1) The court excluded competent evidence offered by the plaintiff. Mumford v. Wilson, 19 Mo. 669; Donovan v. Railroad, 158 Mass. 450; Briggs v. Grand Trunk Co., 24 N. C. Q. B. 510; State ex rel. v. Railroad, 149 Mo. 104; Railroad v. Owens, 1 Tex. App. 163; Gulf Co. v. Wright, 2 Tex. Civ. App. 463, 21 S. W. 399. (2) The defendant should have been compelled to produce its train sheets, showing the dates on which trains five an six failed to stop at Aurora. Greenburg v. Railroad, 23 Ind". App. 141, 55 N. E. 46; State ex rel. v. Railroad, 70 Mo. App. 635; LaPountaine v. Ass’n Underwriters, 83 N. C. 132; Rice on Evidence, 309; Ex Parte Busket, 106 Mo. 602; State v. Pomeroy,'130 Mo. 489; State v. Davis, 108 Mo. 666; State ex rel. v. Hardware Company, 109 Mo. 124. (3) The court should have submitted the case to the jury. Gladson v. Minnesota, 166 U. S. 427; Railroad v. People of New York, 165 U. S. 628; Lake Shore Co. v. Ohio, 173 U. S. 285; Stone v. Trust Co., 116 U. S. 307; Railroad v. Jacobsin,' 179 U. S. 287; Stone v. Railroad, 116 U. S. 347; Wash. Co. v. Brown, 17 Wall. 445; State v. Williams, 44 Mo. App. 302; State v. Railroad, 83 Mo. 144; Logan v. Railroad, 74 Ga. 684; Phil. etc. Co. v. Catawissa Co., 53 Pa. St. 20; Railroad v. Denver, etc. Co., 110 U. S. 667; Lamb v. Railroad, 147 Mo. 171.</p> <p>(1) This case is, in its nature, criminal, and the defendant can not be required to give evidence which would in any way tend to subject it to a penalty or forfeiture. The rule is laid down in 26 Encyclopedia of Pleading and Practice, page 743. 29 Am. and Eng. Enc. of Law, 824; Johnson v. Donaldson, 3 Fed. 22; Swan v. Mast, 63 Fed. 623; Story Eq. Plead., Clause 607, page 846; 1 G-reenleaf on Ev., section 453. (2) The third and last error complained of is that the court should have submitted the case to the jury. In other words, should not have sustained the demurrer to his evidence at the close of plaintiff’s case. To support this contention appellant cites: Grladson v. Minn., 166 U. S. 427; Railroad v. People, 165 U. S. 628; Railroad v. Ohio, 173 U. S. 285; Stone v. T. R. Co., 116 IT. S. 307. All of these cases relate to the question of whether or not the statute in question, as applied to the facts in this case, is in violation of that provision of the federal constitution giving Congress the exclusive right to regulate interstate commerce. (3) If, as we have all along supposed, the court sustained the demurrer at the close of the plaintiff’s case, on the ground that his evidence did not entitle him to go to the jury, then we should scrutinize his evidence, and see whether the ruling was proper. 13 Am. and Eng. Enc. of Law, 55, 491.</p>

Jackson Circuit Court. — Hon. James Gibson, Judge. (1) The instrument for which the defendants gave their check, was an option contract and was absolutely void. Revised Statutes 1899, sec. 2337; Revised Statutes 1899, sec. 2342; Connor v. Black, 119 Mo. 126; Schreiver, Flock & Co. v. Isaac Orr, Admr., 55 Mo. App. 406; Mulford v. Caesar, 53 Mo. App. 263; Crawford v. Spencer, 92 Mo. 498; Hill v. Johnson, 38 Mo. App. 383; Scott v. Brown, 54 Mo.

— Ho». E. P. Gates, Judge. (1) The resolution declaring the work necessary did not include and describe the work of bringing the street to grade. (2) The notice to contractors was not published in some paper published in the city for one week, as required by law. (3) The work was not completed within the time required by contract and ordinance.

<p>Appeal from Jefferson Cycuit Court. — Son. Frank B. Bearing, Judge.</p> <p>(1) The court erred in admitting the opinions of plaintiff’s several witnesses as to the rate of speed. Not one of them had ever made any observations as to the rate of speed of ears, and could therefore form ho judgment on the subject. Without making such observations, they had not the knowledge which entitled them to express an opinion as to the rate of speed. Muth v. Railroad, 87 Mo. App. 434. (2) The court erred in giving each of the instructions for the plaintiff. The plaintiff having alleged specific acts of negligence, those acts alone should have been submitted to the jury, which they must find to have been the proximate cause of the injury. Each of the plaintiff’s instructions which goes to the merits of the case directs the jury to find against the defendant upon any cause of negligence, whether alleged or not. The plaintiff having limited her right to recover to the specific acts of negligence alleged, to burden the issues submitted to the jury in the manner set out in plaintiff’s first and second instructions was error. Feary v. Railway, 162 Mo. 94; Hite v. Railway, 130 Mo. 136.</p> <p>(1) It does not require an expert to testify as to the speed of a car. Anyone accustomed to riding upon cars and seeing them run may testify as to speed. Walsh v. Railroad, 102 Mo. 582; Covel v. Railroad, 82 Mo. App. 186; Railroad v. Steinberg, 17 Mich. 99; Louisville v. Jones, 108 Ind. 551; Pears v. Seattle, 6 Wash. 227; Pence v. Railroad, 42 Am. and Eng. Railroad Cases, 126; Robinson v. Railway, 112 Fed. 487. (2) A carrier of passengers is required, so far as it is capable by human care and foresight', to carry them safely, and it is responsible for all injuries resulting to its passengers from even the slightest negligence on its part. Higgins v. Railroad, 36 Mo. 428; Lemon v. Chanslor, 68 Mo. 356; Waller v. Railroad, 83 Mo. 615; Leslie v. Railroad, 88 Mo. 55 ; Furnish v. Railway, 102 Mo. 150; O’Connell v. Railroad, 106 Mo. 482; Clark v. Railroad, 127 Mo. 208; Eight v. Railway, 130 Mo. 139; Powers v. Railway, 60 Mo. App. 482; Parker v. Railway, 69 Mo. 54; Choquette v. Railway, 80 Mo. App. 520; White v. Railroad, 136 Mass. 324; Nagle v. Railroad, 88 Cal. (1891) 86; Railway v. Cook, 145 111. (1893) 551. (3) The breaking down or giving way of any portion of the means of transportation of a carrier of passengers for hire whereby an injury happens to a passenger, constitutes a prima facie presumption of negligence on the part of the carrier, which casts upon the carrier the burden of showing to the reasonable satisfaction of the jury that such breaking down 'of giving way took place notwithstanding the carrier had exercised to prevent the same the utmost care, skill and foresight of a very cautious person engaged in that employment, and notwithstanding that the carrier had not been guilty of even the slightest negligence tending to produce such breaking down, but that it was the result of mere casualty or unavoidable accident. Unless this presumption is rebutted by the carrier to the reasonable satisfaction of the jury, they may regard it as conclusive, but the carrier can rebut it by showing that the accident which produced the injury to the passenger could not have been prevented by the carrier, or its agents or servants by the exercise of, the utmost care, skill and foresight of a very cautious person engaged in the same business. Dougherty v. Railroad, 81 Mo. 325; Eipsley v. Railroad, 88 Mo. 352; Clark v. Railway, 130 Mo. 51; Yerkes v. Keokuk Packet Co., 7 Mo. App. 267; Madden v. Railroad, 50 Mo. App. 675; Meyer v. Railroad, 64 Pa. St. 225; Taylor v. Railroad, 84 N. E. 304; Railroad v. Blumenthal, 160 111. 40; Railroad v. Jennings, 83 111. App. 612; McCaifery v. Railroad, 193 Pa. St. 339; Meador v. Railway, 61 Pac. (Kan.) 442; Railroad v. Findlay, 76 Ga. 311; Murphy v. Railroad, 89 Ga. 833; Railroad v. Snyder, 117 Ind. 435; Anderson v. S'haley, 114 Ind. 553; Railroad v. Anderson, 72 Md. 526; Gehnor v. Railroad, 101 Mass. 208; Railroad v. Kuhn, 86 Ky.. 578; Railroad v. Jones, 83 Ala. 377; Gleason v. Railroad, 140 U. S. 435; Fetter on Carriers of Passengers, p. 1109,. chap. 34, sec. 480; Story on Bailments, 601; 2 Shear-man & Redfield on Neg. (5 Ed.), 516; Hutchinson on Carriers (1 Ed.), p. 617, sec. 800; Booth on Street Railways, see. 361. |</p> <p>STATEMENT.</p> <p>On Sunday afternoon, September 28, 1902, Mr. and Mrs. J. "W. Aston, accompanied by their three children, started returning from Forest Park; at about five o’clock they boarded a car of defendant then stationary at Forest Park University; the car within was filled with passengers, and the family were compelled to remain on the rear platform. The father, having paid their fare, stood with the youngest child, an infant, in his arms, and the mother was opposite with her arm on the shoulder of the eldest child, a daughter then about seven years of age, standing near or against the gate on the north side of the platform; the car started eastward, stopped at Forest Park Highlands, where more passengers were taken up, and after proceeding a short distance, the gate swung open, the mother and child were precipitated from the car to the ground and injured. The testimony on behalf of plaintiff tended to show that the gate was not fastened but the cause of its becoming loose did not clearly appear; by the evidence of numerous witnesses, it further appeared that the roadbed of defendant, at the place of the casualty, was in bad condition and the car was then being propelled at a high ■ rate of speed. The evidence in defense on the contrary demonstrated that the track was in good condition, well ballasted with a combination of cinders, dirt and macadam, constructed with sixty pound T rails, the usual rails for such purposes outside of streets, that the gate, was one in common use and had been inspected by the conductor of the ear before the trip was begun and was securely fastened, both the gate and the fastening in' perfect condition, the fastenings were first class and could not be opened by mere jolting of the car but would have to be opened by some one, and the speed of the car, was moderate, not exceeding ten miles per hour.</p> <p>The assignments of negligence, in the complaint on which the trial was had, were, that defendant permitted so many persons upon the rear platform as to negligently overcrowd it; that, after the platform was so overcrowded, the car was operated at a careless and negligent speed of about twenty-five miles per hour; that the track was in negligent, rough condition, not well ballasted and unfit to operate a car over at even twelve miles per hour; that the gate of the rear platform was not securely and safely fastened, but left in negligent condition, liable to swing open and allow plaintiff to be thrown from the platform; that the several acts of defendant thus enumerated together produced a severe jostling of the passengers upon the rear platform, causing them to crush against plaintiff next to the gate which gave way, swung •open and the plaintiff was thrown from the car while it was moving at such negligent speed; the injuries sustained were then detailed and judgment asked. These allegations were put in issue by defendant’s answer, the cause was tried in the circuit court of Jefferson county on change of venue before a jury, a verdict returned for plaintiff and defendant has appealed.</p>

— Hon. II. G. Riley, Judge. (1) Upon the face of the record the judgment is erroneous, as it is shown to have been rendered on a finding and verdict of seven jurors. Bank v. Anderson, 1 Mo. 244; State v. Mansfield, 41 Mo. 470; Vaughn v. Skade, 30 Mo. 603; Tapley v. Matson, 38 Mo. 489. (2) The case was tried upon issues not raised by the pleadings. Defendant’s answer pleaded a counterclaim in his favor for five hundred dollars ($500.00) against the firm of Marshall & Brother.

— Hon. J. L. Fort, Judge. (1) Case number 193 was not triable because there was no notice of appeal and because the appellee had not entered his appearance. R. S. 1899, sec. 4074 and sec. 4075; Hawley v. Railroad, 80 Mo. 540. (2) A party can not split his demand without consent of the debtor. Morrison v. deDonato, 79 Mo. App. 643.

<p>1. PRACTICE: Parties: Real Party in Interest. The assignee of a judgment, under code practice, should sue in his own name, as the real party in interest, in an action on the appeal bond, and not in the name of his assignor to his use.</p> <p>2. - — : Pleading: Defect of Parties: Waiver. A defect of parties apparent on the .face of the petition must be raised by demurrer. The objection that the suit is brought in the name of one not the real party in interest is waived by answer to the merits and going to trial.</p> <p>3. UNLAWFUL DETAINER: Title and Right of Possession not in Issue. In an action for forcible entry and detainer, neither the title nor right of possession is in issue, the only question being whether there has been a forcible entry on the plaintiff’s possession.</p> <p>4. RES ADJUDICATA. In an action on an appeal bond given in a forcible entry and detainer suit, that part of the answer which set up in defense facts which might have been invoked as matters of defense to the forcible entry and detainer action, was properly stricken out on motion because already adjudicated.</p>

— Hon. Jas. I. Neville, Judge. (1) The statutes of the State of Missouri provide as follows: ‘ ‘ Section 3534. Compensation — Guardians and Curators shall receive such compensation for their services as the court shall decide to be just and reasonable, etc.” Revised Statutes 1899, p. 879. (2) Unfaithful administration will not deprive an executor of a right to compensation, for services so far as they have been beneficial to the persons interested in the testator (s estate.

— Ho». H. G. Riley, Judge. (1) The court should have stricken out the plaintiffs’ amended petition, because it was inconsistent with, contradictory of, and a departure from the allegations of the original petition. The original petition charges that the accident occurred on the defendant’s “Tram-road” because of the negligence of the engineer, a fellow-servant.

Louis City Circuit Court. — Hon. Walter B. Douglas, -Judge. (1) The indictment is fatally defective in failing to sufficiently allege the ownership of the property charged to have been stolen by another, and subsequently received by .this appellant.

<p>1. PLEADING: Replication: Evidence. Evidence is properly admitted to prove averments of new matter in a replication, which go to contradict the allegations of the answer, although the petition contains no averments on the subject.</p> <p>2. CONTRACT: Construction of. The contract, for breach of which suit was brought, provided that the defendant was to furnish logs at the plaintiff’s saw mill in numbers "limited by the reasonable convenience” of the defendant, to endeavor to supply logs sufficient to enable the plaintiff to run his saw mill all the time and cut such lumber as the defendant could sell each month, and “to log said mill to its capacity to cut, limited only by the amount of lumber the said party of the first part (defendant) should he able to sell at satisfactory prices.” Held, the contract did not constitute the defendant judge as to the quality of the timber to be supplied to plaintiff, hut that the purpose of the parties was to manufacture and sell marketable lumber. Reid further, the phrase, “satisfactory price,” in the contract should be a price which would yield the defendant a reasonable profit. Reid further, the contract required the defendant to furnish timber from which could be manufactured salable lumber and to make reasonable efforts to put sound and salable lumber an the market, and if, by such efforts, sales at reasonable profits could be made, defendant was bound to furnish sufficient logs to keep the plaintiff’s mill continuously running. Reid further, that the plaintiff was obliged, when furnished with such sound lumber, to saw it in a workmanlike manner and of such dimensions as required by defendant.</p> <p>3. PLEADING: Replication: New Matter. Under section 607, Revised Statutes of 1899, new matter may be set up in a reply, if not inconsistent with the petition, which constitutes a defense to a counterclaim set up by the defendant in answer.</p> <p>4. -: -: -. But the reply can not be used in aid of the petition to engraft thereon a material allegation which has been omitted, and it is error to instruct the jury authorizing a recovery by plaintiff on the proof of such allegation.</p> <p>5. CONTRACT: Damages for Breach of. The measure of damages in actions for breach of contract is a matter of law for the court to declare in its instructions, and not a matter for the jury to speculate upon.</p> <p>6. -: -: -. In an action for failure to keep plaintiff’s saw mill supplied with logs, according to contract, the measure of damages is the loss of the net profits which plaintiff would have realized from the operation of his mill if he had been supplied with logs according to the terms of the contract.</p>

<p>1. APPEAL: Affidavit. An affidavit for appeal which, though awkwardly and inartistically drawn, substantially fills the requirements of the statute is sufficient.</p> <p>2. WASTE: Injunction: Possession. An injunction will not lie to prevent waste upon land, of which the record shows neither title nor possession in plaintiff.</p>

— Row. E. M. Hughes, Judge. (1) The information is fatally defective, because not verified by the oath of the prosecuting attorney, or some other person, or supported by the affidavit of such person. R. S. 1899, sec. 2177; State v. 0 ’Connor, 58 Mo. App. 157; State v. Cayman, 61 Mo. App. 211; State v. Pruett, Id. 156; State v. Bragg, 63 Mo. App. 22; State v. Bonner, — Mo. —. Counts two to ten, inclusive, do not state offenses. R. S. 1899, sec. 2338.

— So». Jas. D. Fox, Judge. (1) The first count of the indictment is bad, because it fails to give the date of the alleged illegal sale to Andrew Stickler. State v. Martin, 108 Mo. 117; State v. Manning, 87 Mo. App.- 78; State v. Major, 81 Mo. App. 289; State v. Wilcoxen, 38 Mo. 370; State v. Strumbo, 26 Mo. 306; State v. Quinn, 40 Mo. App. 627; State v. Harris, 47 Mo. App. 558; R. S. 1899, sec. 2535.

<p>1. EQUITY: Reforming Contract: Burden of Proof: Evidence. One who seeks in equity to reform a written contract on the ground of mistake, has the burden of overthrowing, by evidence which is clear and convincing, the prima facie presumption that the contract expresses the agreement of the parties.</p> <p>2. -: -: Sufficiency of Evidence. In an action to reform a written instrument on the ground of mutual mistake, and incorporate an additional stipulation by parol, the evidence is examined and held adequate to support a judgment for defendant.</p>

— Hon. H. C. Pepper, Judge. (1) That there was no plat filed of the land described in the petition for incorporation in 1871, did not invalidate the incorporation. State ex rel. v. Young, 61 Mo. App. 494. (2) The objection made by defendants to the description of the commons in the order of 1871, that the word “westerly” is indefinite, is not well taken. “Westerly” has been frequently held tó mean due west.

— Now. E. M. Hughes, Judge. (1) In the light of plaintiff’s admission and the undisputed evidence, he is precluded from a right to recover in this action and in such circumstances it was the plain duty of the trial court to direct a verdict for defendant. Feary v. Railroad, 162 Mo. 105; Holmes v. Leadbetter, 95 Mo. App. 419; Spooner v. Railroad, 23 Mo. App. 411.

—Hon. B. A. Anthony, Judge. (1) A party can only become the agent by the will of the principal. Mechem on Agency, sec. 80. (2) Agency is either actual or ostensible, and is actual when the agent is really employed by the principal; and agency is ostensible when the principal intentionally causes a third person to believe another to be his agent who is not really employed by him. Mechem on Agency, sec. 4.

— How. J. T. Neville, Judge. Revised Statutes 1899, sec. 4355. We contend that the evidence in this case wholly fails to establish a tenancy between George and Lorin Lappin. And further, that although a tenancy was established, yet Lorin rented the premises with notice, and we claim that that section applies to tenants without notice.

W. A. Davidson, Judge. (1) A new trial should not be granted to a party upon that ground that he was mistaken as to the nature of his case or as to what his witnesses would swear. Robins v. Ins. Co., 12 Mo. 380. Surprise caused by the laches of party never afford ground for new trial. Tittman v. Thornton, 107 Mo. 500. (2) If there is any element of negligence, there can be no surprise. Fret-well v. Laffoon, 77 Mo. 26; Peers v. Davis, 29 Mo. 184.

— Bow. B. C. Riley, Judge. (1.) Plaintiff to the answer filed his replication, as follows: “Plaintiff for replication admits each and every fact set out in the answer except that the timber has been paid for, which he specially denies.” By this replication he admits that the contract was not an oral one as alleged in his petition, and that the contract dated January 13, 1899, was entered into, and thereby plaintiff sold and conveyed to defendant said timber for $325; that…

<p>DRAMSHOPS: Instructions to Bartenders. Where, on the trial of defendant, a licensed dramshop keeper, on the charge of selling liquor on Sunday, the testimony of the defendant himself, and other witnesses for him, was to the effect that he had given his barkeepers rigid instructions not to sell on Sunday, and the evidence for the State, elicited from reluctant and hostile witnesses, showed the commission of the acts com-' plained of by defendant’s barkeepers, and the Jury were instructed to consider whether defendant’s instructions to his barkeepers, not to sell on Sunday, were made in good faith, a verdict of guilty will not be disturbed.</p>

Charles Circuit Court. — Horn. E. M. Hughes, Judge. (1) Appellant’s so-called “statement, points and argument” filed in this cause is no compliance with these rules, and the cause should be dismissed for this reason. Rule 19 of rules of ,practice; MeCullom v. Ulen, 87 Mo. App. 606; R. S. 1899, sec. 863.

— lion. E. M. Hughes, Judge. (1) The plaintiff’s petition states a cause of action against defendants, and the demurrer should have been overruled. Revised Statutes 1899, secs. 2337, 2338, 2339, 2341 and 2342; Revised Statutes 1899, secs. 2221, 2222-, 2223, 2224 and 2225. (2) Under section 2337, R. S. 1899, option dealing or dealing in futures is declared to be gambling.

— No». E. M. Hughes, Judge. (1) The dissolution of an attachment caused by the dismissal of the suit gives to the defendant (not to some outside party) the right to the possession of the attached property. Camp v. Schuster, 51 Mo. App. 406 ; Smead v. Wegman, 27 Mo. 196; Young v. Kellar, 94 Mo. 599. (2) The instruction refused and of which complaint is made embodies the theory of estoppel and as no estoppel was pleaded there was no such issue in the case.

— How. E. M. Hughes, Judge. (1) There is no power possessed by a court, or by a judge, to substitute a right party for a wrong party, plaintiff or defendant. This is a plain case of the substitution of a new party by the court, and not a question of amendment as counsel for defendant in error contends. Dicey on Parties, p. 522, rule 114; Thompson v„ Allen, 86 Mo. 85, citing 73 Mo. 688; Hajek v. Benevolent Society, 66 Mo. App. 568.

— Hon. E. B. McKee, Judge. STATEMENT. In February, 1902, this proceeding was begun in the circuit court of Scotland county, by relator, Hixson, against the respondent, as treasurer of Scotland county.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) Appellant should have been permitted to introduce evidence to show that the board of directors were negligent in their duty in permitting the cashier, W. H. Ritter, to have the entire care and management of the bank. If directors permit a cashier to pursue a line of conduct for a considerable period of time the bank will be bound by his acts.

<p>APPELLATE PRACTICE: Finding of Trial Court Conclusive. The finding o£ a court, in a case tried without a jury, will not be reviewed by the appellate court when there is substantial evidence to support it.</p>

Louis City Circuit Court. — How. ... . Frcmklin Ferriss, Judge. (1) The court erred in sustaining the plaintiff’s motion to strike out the third paragraph of defendant’s answer. The act of the Legislature (Sess. Acts 1901, p. 46) so far changes the common law rulé that assignments of part of a claim for damages may be made.

<p>Appeal from St. Louis City Circuit Court. — No». J. R. Kinealy, Judge.</p>

— Ho». F. R. D earing, Judge. Every fact necessary to confer jurisdiction on a court must affirmatively appear in its proceedings. Vickery v. Railroad, 93 Mo. App. 1. The showing-made by plaintiffs did not entitle them to the mine pro tunc entry of judgment.

Louis City Circuit Court. — Now. Franklin Ferriss, Judge. (1) Paragraph 14 of the testator’s will, regarding advancements, can have no reference to the indebtedness of respondent on the notes in suit, (a) An advancement, in administration law, is a gift from a parent to a child, by anticipation of the whole or a part of what such child would inherit upon the death of the parent intestate. Bouvier’s Law Diet.; 1 Am. & Eng. Ency. (2 Ed.), 760; 2 Woerner Admin.

Louis City Circuit Court. — How. Bobt. M. Foster, Judge. (1) The court erred in refusing instruction No. 7-P, asked by plaintiff. Said instruction informed the jury, in substance, that if plaintiff was riding as a passenger on the front platform of defendant’s car, then the defendant owed plaintiff the duty of exercising every reasonably practicable precaution to protect plaintiff from the dangers incident to riding on said platform. This instruction correctly stated the law.

Louis City Circuit Court. — How. Franklin Ferriss, Judge. (1) The implied contract which a common carrier owes to a passenger is to carry him safely and if the passenger be injured by the carrier, while the relation of carrier and passenger exists the burden is upon the carrier to show that the injury was not occasioned by its negligence. Sweeney v. Eailway, 150 Mo. 397; Och v. Eailroad, 130 Mo. 51;- Dougherty v. Eailroad, 81 Mo. 328.

— How. E. M. Hughes, Judge. (1) Whether or not plaintiff’s conduct, as shown by his admissions, the testimony of his own witnesses and the undisputed physical facts, was negligence is a question of law for the court. Turner v. Railroad, 74 Mo. 607; Davies v. Railroad, 159 Mo. 7; Henze v. Railroad, 71 Mo. 640; Buesching v. Gaslight Co., 73 Mo. 229. (2) Plaintiff proved conclusively that if he had stopped and listened he could have heard the engine approaching.

<p>DAMAGES: Future Pain: Reasonable Certainty. Future pain and anguish recoverable in an action for personal injuries must be limited to such as will be reasonably certain to occur, and an instruction to the jury which allows damages for such pain and anguish as plaintiff “may suffer in the future,” is error, because ignoring the bounds of reasonable certainty.</p>

<p>1. COMMON CARRIERS: Connecting Lines. Under the statute (section 944, Revised Statutes 1889}, a common carrier which contracts to carry goods to their destination over connecting lines, is liable for damages occurring to such goods by the' negligence of connecting lines, and it can not, in making such contract of carriage, stipulate to exempt itself from such liability.</p> <p>2. -: -: Conflict of Laws. But where a contract was. made in Illinois for the shipment of goods from a point in that State to a point in Missouri, over connecting lines, the statute of Missouri does not apply, and the carrier making the contract could limit its liability to damages which might occur on its own line.</p> <p>3. -: -: Connecting Station. And the omission from the bill of lading of the name of the station where the goods were transferred to the connecting line did not affect the validity of the exemption.</p> <p>4. -: -: Conflict of Laws. The presumption is that the common law prevailed in Illinois, and a statute of that State, similar to our own in relation to liability on connecting lines, could not be considered, unless introduced in evidence.</p> <p>5. JUSTICES OF THE PEACE: Pleading: Amendments. Where there is no statement of any cause of action against some of several defendants, sued before a justice of the peace, there was nothing by which to amend as to them in the circuit court.</p> <p>.6. -: -: Void Judgment: Appeals. A judgment rendered before a justice of tbe peace was void as to those defendants against whom no cause of action is stated and there was nothing to appeal from.</p> <p>7. -: -: Waiver: Jurisdiction. And such defendants did not waive the want of jurisdiction in the circuit court to hear the case on appeal, by appearing to an amended complaint filed in that court and going to trial.</p>

<p>!</p> <p>Appeal from St. Louis City Circuit Court. — Eon. PL. D. Wood, Judge.</p> <p>(1) The verdict is not supported by the evidence, there being no exact or precise evidence as to the time consumed by plaintiff in the employment in question from which the jury might arrive at a proper verdict, and it should, therefore, have been set aside by the trial court. Moore v. Hutchinson, 69 Mo. 429; Baum v. Fryrear, 85 Mo. 151; Flanders v. Green, 50 Mo. App. 371; Meier v. Proctor, 81 Mo. App. 410. (2) Giving to plaintiff’s evidence on the question of time consumed in the work in question its fullest effect, the verdict is manifestly excessive and should have been set aside by the trial court. Benson v. Railroad, 78 Mo. 504; Marshall v. Railroad, 78 Mo. 610; Nicholson v. Couch, 72 Mo. 209; Cameron Sun v. McAnaw, 72 Mo. App. 196. (3) The verdict indicates prejudice on the part of the jury against defendant, and should, therefore, have been set aside by the trial court. Gage v. Trawick, 94 Mo. App. 307; Cook v. Railroad, 94 Mo. App. 417.</p> <p>The jury were the proper judges of the value of plaintiff’s services. Their verdict in this case is supported by substantial evidence. The motion for a new trial on the alleged ground that the verdict is not supported by the evidence was properly overruled. Cos-grove v. Leonard, 134 Mo-. 419 ; Rose v. Spies, 44 Mo. 20; Baum v. Fryrear, 85 Mo. 151; Tower v. Pauly, 76 Mo. 287; Pike v. Martindale, 91 Mo. 284.</p>

<p>Appeal from Audrain Circuit Court. — How. H. W. Johnson, Judge.</p> <p>(1) The court erred in permitting the alleged expert, E. B. Shaw, to give his opinion as to what was the trouble with the horses, basing it upon the evidence in the ease. This was in effect usurping the province of the jury, and also involved the process of allowing the expert to pass upon the disputed points of the testimony, and to arrive at a conclusion from a consideration of disputed facts. An expert can not be permitted to give his opinion on the whole case or “from the evidence in the case” as that would necessarily include a determination of the facts and would invade the province of the jury. Lawson on Expert & Opinion Ev. (2 Ed.), 172; State v. Palmer, 161 Mo. 174; Tuizley v. Cowgill, 48 Mo. 298; Page v. New York, 10 N. Y. Supp. 826; Connelly v. Railway, '60 Hun 495, 15 N. Y. Supp. 176; Fairchild v. Bascomb, 35 Vt. 398; Graney v. Railway, 157 Mo. 682. (2) An expert should not be asked questions which require him to draw inferences or conclusions of fact from the testimony, or to pass on the credibility of the witnesses or to decide as to the weight of tl¿e evidence, or to reconcile conflicting evidence. Rogers’ on Expert Testimony, 61: “The proper method, therefore, of obtaining the opinion of the expert upon the facts brought out at the trial, and which he has heard, is to state the evidence to him and ask him his opinion upon such hypothetical case, and not to ask him what his opinion is upon the evidence as he.'.has heard it.” McGuire v. Railroad, 51 N. Y. S. 1075; Key v. Thompson, 2 Hannay (N. B.) 224; Briggs v. Railway, 52 Minn. -36, 53 N. W. 1019. (3) The evidence does not show a legitimate inference that the condition of these horses resulted from the wreck. At most it is a bare conjecture, hence defendant is not liable and its instructiomNo: 1 should have been given. Plaintiff can not recover and the judgment should be reverséd. Smart v. Kansas City, 9Í Mo. App. 586; Smiliie v. St. Bernard Dollar Store,.47 Mo. App. 406; Smith v. First Nat. Bank, 99 Mass: 612; Searles v. Railroad, 101 N." Y. 661; Cotton v: Wood, 8 C. B. (N. S.) 568. 'When the state of the evidence is such as 'to leave the result of the accident to be determined only by conjecture or surmise, the plaintiff must fail. Bond, v. Smith, 113 N. Y. 378; Pauley v. Steam Co., 131 N. Y. 90; Linkhouf v. Lombard, 137 N. Y. 417.</p> <p>(1) The manner of the examination of Dr. E. B., Shaw, if error, was harmless, as there was no conflict in the testimony. State v. Prewitt, 175 Mo. 228; State v. Palmer, 161 Mo. 174. (2) The appellant can not complain of the error if any in the examination of Dr. E. B. Shaw, as its counsel by the questions asked on cross-examination adopted the error, if any, of respondent. Goss v. Railroad, 50 Mo. App. 623. (3) If' there had been a sharp conflict in the evidence as to the cause of the damages to the team of horses and appellant had not adopted the error if any, in its cross-examination of witness E. B. Shaw, there might have-been some contention as to its objection to the questions asked the expert, but under the evidence adduced at the-trial, it was not error. (4) However, said instruction was properly refused. There was ample testimony to-submit the cause to the jury. Doan v. Railroad, 38' Mo. App. 408; Home v. Express Co., 48 Mo. App-. 179 ;. Same v. Same, 66 Mo. App. 486; Cash v. Railroad, 81 Mo. App. 109; Davis v. Railroad, 89 Mo. App. 140; Pacific Express Co. v. Emerson, 74 S. W. 132; Peay on Freight Carriers, 253.</p> <p>STATEMENT.</p> <p>Towards end of September, 1902, in Bowling Green, Mo., the plaintiff purchased a pair of horses for the price of six hundred dollars; at time of their purchase the animals were gentle and well broke, they had been driven in single and double harness by their former owners and by members of their families. When shipped to the purchaser, consigned to. St. Louis over defendant’s railroad, the horses were started in good condition, newly shod, their legs bandaged and they were tied separately at opposite ends of the car in proper condition for safe transportation. On the journey, within four miles of the town of Gilmore, while the train was running at a speed estimated at fifteen or twenty miles per hour, the car containing them was derailed, thrown down an embankment, and overturned, requiring the animals to be extricated through the roof, sawed open for that purpose. They were then led to Gilmore, and placed in a livery stable till the following afternoon, when they were reshipped and delivered to respondent at St. Louis. When removed from the wreck, their shoes were off, the bandages torn and down, and the animals scratched and bruised; upon arrival in St. Louis they were well cared for, blanketed and turned into box stalls, where they were permitted to remain without use for several days. After unavailing effort to drive them, they were returned to the stable, and after further interval of disuse, when taken out both were nervous and susceptible to fright at slight causes; one, the near horse of the team, was found distressed, unable to extend himself and could be driven but a short distance, and within a month dropped dead when about to be put in harness; the off horse was returned by boat to the firm which sold him at Bowling Green, and showed such disposition to run away that after trial he was sold without guaranty for $112.50 at auction. In developing the proof for respondent, a veterinary expert was permitted to give his opinion, basing it upon the evidence he had heard introduced, as to what was the trouble with the team, and to state the condition of the horses was attributable to the result of the casualty they had experienced in transit.</p>

<p>Appeal from Lewis Circuit Court.^-Hon. E. R. McKee, Judge.</p> <p>Respondent’s complaint filed in this cause before the justice of the peace does not state facts sufficient to constitute a cause of action against appellant. R. S. 1899, sec. 4777, p. 1136; Sheehan & Loler Trans. Co. v. Simms, 28 Mo. App. 64. The court erred in admitting in evidence deed from W. J. Burnett to William H. Prentice, and objected to by appellant because it is an attempt to prove title and that is not the question involved, it is the possession.</p>

Louis Circuit Court.— Hon. J. W. McElhinney, Judge. (1) The petition of plaintiff does not state a cause of action. This pleading was assailed at trial by objection to the introduction of any evidence under it and after verdict by motion in arrest of judgment. (2) The constitutive facts which compose plaintiff’s cause of action must be pleaded, not conclusions, for the latter are neither traversable nor demurrable, but are to be treated as no statements a.t all.

<p>Appeal from Butler Circuit Court. — Ho». J. L. Forty Judge.</p> <p>Respondent’s canse of action is based upon a failure to transmit and deliver a messáge and therefore does not fall within section 1255, R. S. 1899, as said statute' is penal in its nature and under the construction given it by the supreme and appellate courts of the State there can be a recovery only for failure to transmit a message. Connell v. Telegraph Co., 108 Mo. 459; Rixke v. Telegraph Co., 96 Mo. App. 406; Parker v. Telegraph Co., 87 Mo. App. 533; Wood v. Telegraph Co., 59 Mo. App. 236; Dudley v. Telegraph Co., 54 M6. App. 391; Manz v. Railway, 87 Mo. 278.</p> <p>(1) The petition states a cause of action. R. S. 1899, sec. 1255; Parker v. Telegraph Co., 87 Mo. App. •553. (2) It was the statutory duty of the agent of the appellant, at the time application was made to send this message, to plainly inform the applicant of the condition of the wires, messages, etc., and whether or not the message could be or could not be sent as required. R. S. 1899, sec. 1257; Smith v. Telegraph Co., 57 Mo. App. 259. (3) The decision of the court was against the law under the evidence, against the weight of the evidence and was for the wrong party and, therefore, the court committed no error in granting respondent a new trial. Friedman v. Pulitzer Pub. Co., 77 S. W. 340; Sturdivant Bank v. Wilson, 87 Mo. App. 534; Sinclair v. Narragansett, 87 Mo. App. 268.</p>

— How. E. B. McKee, Judge. (1) The burden of proof was upon'the plaintiffs to plead and prove the value of the property at the time or its destruction, and the amount of the loss. Joyce on Insurance, secs. 3769-3770; Wood on Insurance, sec. 42, p. 101; Green v. Ins. Co., 69 Mo. App. 430; Gustin v. Fire Ins. Co., 64 S. W. 179, 164 Mo. 172, affirming Gustin v. Ins. Co., 90 Mo. App. 373; Joy v. Ins. Co., 83 Iowa 15; Warshawky v. Ins. Co., 98 Iowa 226.

Charles Circuit Court.-— Eon. E. W. Johnson, Judge. Executors are entitled on final settlement to credit for all debts where the debtor is insolvent, or where it has been impossible for the executors to have collected the debt by the exercise of due diligence. R. S. 1899, sec. 234; Powell v. Hurt, 108 Mo. 507. (1) The burden was upon the executors to prove in a satisfactory way that the note of Frances Eckler was in fact unavailable. In re Haifey Estate, 10 Mo.

— Ron. J. L. Fort, Judge. (1) It is conceded that if plaintiff has shown an agreement to pay $500 for services performed and to be performed, she may recover under proper pleadings. But we contend that plaintiff must show an agreement ^express or implied to pay for such services. Swan v. Dale, 90 Mo. App. 87.

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

Louis City Circuit Court. — Son, S. D. Wood, Judge. (1) It was error for the court to instruct that defendant owed plaintiff no duty if the place at which plaintiff boarded the car was not a usual and customary place for stopping to receive passengers, unless defendant’s conductor saw plaintiff attempting to board the car while it was standing still and so seeing plaintiff negligently started the car before plaintiff was safely on. the car, etc. Ashworth v. Railway, 59 L. R.…

— Now. N. IF. Johnson, Judge.. (1) The papers in the bankruptcy case were inadmissible in evidence because they failed to show that, the Sisk Bros, had been personally served with process and also failed to show that they appeared. And further the proof was undisputed that one of the alleged bankrupts was a resident of the State of California..

— Hon. E. M. Hughes, Judge. . (1) Upon the death of Walter Dix his widow was entitled to remain in possession and to receive the rents of the home place until dower was assigned. R. S. 1899, sec. 2954; Carey v. West, 139 Mo. 174; Holmes v. Kring, 93 Mo. 452.

<p>Appeal from Greene Circuit Court. — Eon. J. T. Neville, Judge.</p> <p>(1) The court committed error in sustaining plaintiff’s motion to strike out that part of defendant’s answer which set up as a defense that the fire which occasioned the loss sued for was the result of gross neglect or intent on the part of plaintiff’s son and agent, in charge of and associated with plaintiff in the store business. LaPorce v. Ins. Co., 43 Mo.- App. 518. (2) The applications for continuances filed by the defendant, and the affidavits connected therewith were wholly irrelevant to any issue involved in the cause. .It is apparent that they were offered in evidence by plaintiffs and put before the jury for the purpose of creating a prejudice against the defendant in the minds of the jurors, and the trial court committed error to defendant’s prejudice in overruling defendant’s objection to their admission in evidence. Alcorn v. Bailway, 108 Mo. 90; Gubernator v. Rettalack, 86 Mo. App. 184; Bank v. Scalzo, 127 Mo. 185; Connor v. Black, 110 Mo. 136; Pryor v. Railway, 85 Mo. App. 367; Railway v. Oritz, 158 U. S. 334, 39 Law Ed. 1006; Bindbeutel'v. Railway, 43 Mo. App. 468; Suttle v. Aloe, 39 Mo. App., 38; Clerk v. Fairley, 30 Mo. App. 335; Walton v. Railway, 40 Mo. App. 544; Baird v. Am. Car Co., 63 Mo. App. 382; McDermott v. Judy’s Admr., 67 Mo. App. 647. (3) The policy sued on contained a three-fourths value clause, or condition limiting the defendant’s liability to a pro rata proportion of three-fourths of the value of the property destroyed. The instruction given by the court, over defendant’s objection, disregards this provision of the contract, which is a valid and binding condition, and instructs the jury that they should find for plaintiff for the amount of defendant’s proportion of the full amount of the loss. This was error. Millis v. Ins. Co., 95 Mo. App. 211; Dolan v. Ins. Co., 88 Mo. App. 666; Roberts v. Ins. Co., 94 Mo. App. 142. (4) The fact of the previous fire in plaintiff’s store and its damage to, and the changes in consequence thereof in and’ about the flue in the store building was a circumstance material to and a change in the risk insured. It was plaintiff’s duty immediately thereafter to have notified the defendant thereof, and defendant’s instruction to that effect should have been.given. (5) The condition of the policy requiring and by which insured agreed to keep a set of books, clearly and plainly presenting a complete record of business transacted, including all purchases and sales, and to take a complete itemized inventory as specified, is a valid and binding condition. It is admitted its conditions had not been complied with,so that, defendant’s first instruction, refused, should have been given. Gibson v. Ins. Co., 82 Mo. App. 520; Ins. Co. v. Monger & H., 74 S. W. 702; R. & M. v. Ins. Co., 48 S. W. 550; Fire Ass ’n v. Calhoun, 67 S. W. 153; Ins! Co. v. Wilkerson, 13 S. W. 1103; Collin v. Ins. Co t 1 Sum. 434; Wood on Insurance, sec. 440; O’Brien v. Las. Co., 63 1ST. T. 111. (6) The remarks of plaintiff’s counsel, taken by the court stenographer, set out in the bill of exceptions, objected to by defendant, and called ,to the court’s attention, but not rebuked, constituted an unwarranted and unsupported attack on defendant, made for the purpose of prejudicing the jury, and is reversible error. Killoren v. Meehan et ah, 68 Mo. App. 212; Gibson v. Zeitig, 24 Mo. App. 65; McDonald & Co. v. Cash et al., 45 Mo. App. 66; Nichols Shepherd Co. v. Metzger, 43 Mo. App. 618; Norton v. Railway, 40 Mo. App. 647.</p> <p>(1) The court did not commit error in sustaining plaintiff’s motion to strike out that part of defendant’s answer which set up as a defense that the fire was the result of gross neglect on the part of plaintiff’s son and agent. It is not charged that plaintiff was a party thereto or that the occurrence was ever brought to his knowledge. Ins. Co. v. Glasgow, 8 Mo. 713; McGammon v. Ins. Co., 171 Mo. 143; Wertheimer-Swarts v. U. S. Casualty Co., 172 Mo. 135. The act complained of in no wise contributed to the loss. Organ v. Ins. Co., 3 Mo. App. 576. (2) The several applications for continuances were properly admissible as admissions by defendant. An examination of these affidavits show that they afford a basis for legitimate inferences of fact by the jury contrary to the defense made in this case. Besides, this testimony is admissible as affecting the credit and weight to be given to the testimony of the witnesses Barr and Bacon. Bogie v. Nolan, 96 Mo. 85; Padley v. Catterlin, 64 Mo. App. 629; Gubernator v. Rettalack, 86 Mo. App. 189. (3) The failure of the court to limit the plaintiff’s right of recovery to a pro rata proportion of three-fourths of the value of the property destroyed, if error, was not prejudicial error. Millis v. Ins. Co., 95 Mo. App. 218. (6) The previous fire was a risk against which defendant insured, and the mere occurrence of such fire can not in reason or law avoid the policy. The policy does not provide for any notice. The only provision in the policy hearing on this point is this: “This entire policy shall he void if the hazard he increased by any means within the control or knowledge of the insured. ’ ’ "Whether or not the hazard was increased by the small blaze, or by the change in removing the joist from contact with the flue Was a question of fact. This question was fully and fairly submitted to the jury. Dolan v. Town Mutual, 88 Mo. App. 666; Kern v. Ins. Co., 40 Mo. 19; Ritter v. Ins. Co., 40 Mo. 40; 1 "Wood on Insurance (2 Ed.), sec. 241. Even if notice were required by terms of policy the question would still be one of fact whether change increased the risk. 1 "Wood on Insurance (2 Ed.), sec. 250. And if the fire and consequent repairs or change did not materially increase the risk, such fire need not only not be reported but it might have been purposely concealed without avoiding the policy. 1 "Wood on Insurance (2 Ed.), sec. 213; Baldwin v. Ins. Co., 56 Mo. 151. (7) The provision requiring the taking of an inventory and keeping a record of purchases and sales, cash and credit was fully complied with. Burnett v. Ins. Co., 68 Mo. App. 343.</p> <p>STATEMENT.</p> <p>On January 13, 1902, plaintiff was a retail dealer in general merchandise at Denlow, Douglas county, Missouri. On that day, defendant, the Mercantile Town Mutual Fire Insurance Company, organized under the laws of the State of Missouri, for an agreed premium paid in cash, issued its policy of insurance to plaintiff insuring him against loss or damage by fire for one year as follows: Two hundred dollars on his two-story frame building occupied as a retail store; one hundred and fifty dollars on store furniture and fixtures, including show cases and iron safe; fifteen hundred dollars on stock of merchandise while contained in the store. The policy contained the following stipulations:</p> <p>“Three-Fourths Value Clause — It is part of the consideration of this policy, and the basis upon which the rate or premium is fixed, that in the event of loss this company shall not be liable for a greater amount than three-fourths of the actual cash value of the property covered by this policy at the time of such loss, and in case of other insurance, whether policies are concurrent or not, then for only its pro rata proportion of such three-fourths.</p> <p>“Inventory and Iron Safe Clause — It is expressly warranted by the assured: first, that the assured shall take a complete itemized inventory of the stock hereby covered at least once a year during the life of this policy, and unless such inventory has been taken within twelve months prior to the date of this policy, the same shall be taken within thirty days after the date of this policy, or this policy shall be null and void from such date.</p> <p>“Second — The assured shall keep a set of books which shall clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments, both for cash and credit, from date of inventory provided for in first section of this clause, and during the continuance of this policy . . . and in the event the insured fails to so keep said books and inventories this policy shall be null and void. . . .</p> <p>“This entire policy shall be void if the hazard be increased by any means within the control or knowledge of the insured.”</p> <p>On February 20, 1902, the store building and its contents, except about one hundred and fifty dollars worth of goods, were destroyed by fire. Plaintiff gave notice to the company of the fire and made out and delivered to it timely proofs of loss. The defendant company denied all liability on the policy. This suit was brought on the policy to recover the loss.</p> <p>The petition is in the ordinary form.</p> <p>The answer is as follows :</p> <p>“The defendant, for amended answer to the petition of plaintiff, admits that it is a corporation organized under the laws of the State of Missouri, and alleges that it is organized, incorporated and doing business under and by virtue of an act of the Legislature of the State of Missouri, relating to town mutual insurance companies, and is entitled to the benefits and privileges, and subject to the provisions of such act.</p> <p>“Defendant admits that on the thirteenth day of January, 1902, it made its policy of insurance sued on.</p> <p>“Further answering defendant alleges that said policy was issued upon a written and printed application therefor, made and signed by M. Malin, wherein it was agreed and warranted that if the conditions and circumstances were changed or risk increased during the term of said policy said insured should notify the company immediately of the same. Otherwise said policy to be void. Defendant alleges that after said policy was issued and before the fire mentioned in the petition and to-wit, on the — day of January, 1902, a fire occurred in said building which was originated through the flue thereof, whereby said building was slightly damaged; that after the fire the said insured caused certain changes to be made in said building Which weakened the flue and increased the risk of fire in said building; that it was the duty of plaintiff to have notified this defendant of said- fire and have informed defendant of the changes made in said building which increased the said risk as aforesaid; but notwithstanding it was the duty of plaintiff to have so notified defendant, plaintiff never did at any time previous to the fire mentioned in the petition, give defendant any notice of said first fire or of said changes of said building, by reason whereof defendant says plaintiff is not entitled to recover.</p> <p>“Further answering, defendant alleges that after said policy was issued, one O. P. Malin, the son of plaintiff, was in charge of said store as plaintiff’s agent and employee. That on the evening prior to the fire mentioned in the policy, he built in the stove of said store, which was connected with the flue herein referred to, a fire composed of combustible timbers, which was calculated to increase the danger of fire to said building; that when the attention of said C. P. Malin was called to the fact that such fire was calculated to cause said building and all the goods to be burned, he stated, ‘I don’t care, let her go to hell. ’ That said fire was caused by the reckless act of said C. P. Malin. That by said act the risk of fire to said building and property was greatly increased and the fire mentioned in the petition was caused by the conduct of said C. P. Malin and by the defective condition of the flue herein referred to, by reason whereof defendant says plaintiff is not entitled to recover.</p> <p>“Further answering the defendant alleges it is provided in said application and policy that the applicant shall take a complete itemized inventory of any stock of goods insured, at least once a year during the life of the policy, and unless such inventory has been taken within twelve months prior to the date of the policy, the same shall be taken within thirty days after the date of the policy or the policy shall be null and void from such date. The applicant shall keep a get of books which shall clearly and plainly present a complete record of all business transacted, including all purchases, sales and shipments both for cash and credit from the date of inventory provided in the first policy. The applicant shall keep such books and inventories and also the last preceding inventory, if such has been taken, securely locked in a fireproof safe at night and at all times when the building mentioned in the policy is not actually open for business, or failing in this, the applicant shall keep such books and inventories in some place not exposed to a fire which would destroy the aforesaid building, and if the affiant, or applicant fails to do so, said policy shall be null and void.</p> <p>“Defendant alleges that plaintiff failed to comply with said conditions in said policy in this, that it did not take and preserve an inventory or inventories as required by said policy; that it' did not keep a set of books, which clearly and plainly presented a record of all business transacted, including all purchases, sales and shipments, both for cash and credit, as required by said policy, and did not keep such books and inventories in a fireproof safe at night, or when said building was not actually open for business, or in some place not exposed to a fire, which would destroy said building. That the fire mentioned in the petition occurred at a time when said store was not open for business and in the nighttime, by reason whereof defendant says plaintiff is not entitled to recover.</p> <p>“Further answering, defendant alleges that it was the duty of plaintiff to have used every reasonable effort at and during the progress of said fire to have prevented the destruction of said goods from fire and to have saved as many of said goods as possible and to have preserved them after the fire. Defendant alleges that at the time of said fire, plaintiff, by the exercise of reasonable diligence might, and could have saved a large quantity of said goods, but that he recklessly and willfully failed to do so and knowingly permitted other people to enter said store while said fire was in progress and take and remove therefrom a large quantity of said goods and keep and retain same for their own, by reason whereof plaintiff is not entitled to recover.</p> <p>“Further answering defendant denies each and every allegation, matter, fact and thing in the petition alleged not herein expressly admitted and having fully answered asks to go hence with its costs.”</p> <p>The clause of the answer, in respect to the actions and conduct of C. P. Malin, was, on motion of plaintiff, stricken out, whereupon the defendant amended its answer by adding the following clause:</p> <p>“Further answering defendant alleges that the fire mentioned in the petition, which damaged said property, was' caused by the willful and intentional act of the plaintiff, for the purpose of destroying said property and of defrauding this defendant.”</p> <p>The new matter in the answer was put at issue by a reply.</p> <p>Plaintiff offered evidence showing a total destruction by fire of the building and all its contents, except about one hundred and fifty dollars worth of goods, on the night of February 20, 1902. That the building was worth six hundred dollars, and fixtures and show eases about three hundred and seventy-five dollars and the merchandise in the building at the time of the fire from fifty-two to fifty-three hundred dollars. At the time of the fire plaintiff had other insurance of twenty-five hundred dollars on the house and stock of merchandise which has been paid. In August, 1902, plaintiff took an inventory of his stock, which was produced at the trial, showing that $5,395.03 worth of goods and $375 worth of furniture and show eases were then in the store. He also produced at the trial, bills and invoices of all goods he had purchased while in business at Den-low, with the exception of forty or fifty dollars worth of miscellaneous articles purchased for cash from other retail stores. He had no fireproof safe but he testified, that the agent who took his application for the insurance knew at the time the application was made that he had no safe. His books of account and cash sales were taken to his residence every evening when he closed the store and kept there over night and were at his residence on the night of the fire and were produced at the trial.</p> <p>Plaintiff seems to be an illiterate man and unacquainted with approved methods of keeping books of account. His account of cash sales, he testified, was kept in the following manner: each morning on opening the store he would count the cash he put in the money drawer for change and drop in a ticket of the amount; at night when he closed the store he would empty the •drawer of the cash and ticket, take them to his residence, count the cash and from the total deduct the amount shown by the. ticket to have been deposited in the morning and enter the remainder in his cash book as the amount of cash sales for the day. No account was kept of the articles sold, but plaintiff testified he sold on an average profit of twenty per cent, and was making some money in the business.</p> <p>The chimney or flue in the store was one brick in thickness below the roof. An 8x2 joist butted against the flue about two feet above the point where the stovepipe entered the flue. A day or two after the policy was issued this joist was discovered to be charred and was burning. The fire was extinguished by a couple of buckets of water, and next day plaintiff employed a man to take off the charred end of the joist, disconnect it with the flue and brace it up, and remove some •boards that were in dangerous proximity to the flue.</p> <p>Defendant introduced the depositions of two witnesses, Bacon and Barr, who stated they were travelling over Douglas and adjoining counties prospecting, in February, 1902; that on the night of February 20,1902, they went to plaintiff’s store to buy some tobacco; that when they got there they found the door fastened, but on looking through a window they saw plaintiff near a lot of shavings and broken boxes piled on the floor of the store, and saw him strike a match and set the pile on fire; that being strangers they ran to their camping place, hitched up their team and drove away. The force of the testimony of these witnesses was greatly weakened, if not entirely neutralized, by their cross-examination and by evidence offered in rebuttal.</p> <p>The court of its own motion gave the following instruction to the jury:</p> <p>“The plaintiff sues the defendant on a policy of fire insurance. The issuance of the policy is admitted and the evidence shows and it is conceded that the fire occurred. There are two defenses, which the evidence tends to show, either of which is sufficient to defeat a recovery by plaintiff if proven by the evidence. One of these defenses is the claim that there was a change in the conditions in and about the premises and that plaintiff failed to notify defendant of such change. With reference to this you are instructed that if there was a material change in the premises before the fire, that is, if any damage occurred to the building or any repair thereof was made which in any way might be considered as increasing the risk or danger of fire, or if any alteration thereof was made which might reasonably be considered as increasing the risk or danger of fire, or if any alteration thereof was made which might reasonably be considered as affecting the risk, then the plaintiff was compelled to notify the defendant thereof, and, having failed to do so, the jury if they find such aforesaid alterations or changes to have occurred, should find the issues in favor of the defendant. The other defense above mentioned is the claim that plaintiff intentionally caused the fire for the purpose of destroying the building and goods. If you find from the evidence that plaintiff intentionally caused the store to-be set on fire then your verdict should be for the defendant. The burden of proving these defenses is on defendant. and it must be shown by a preponderance or greater weight of the evidence, and in case they are not so established your verdict should be for plaintiff. If you find for plaintiff you will ascertain the amount of his damage in the following manner: Ascertain the loss as to the building: If this exceeds $400 then you will allow plaintiff $200 thereon. If the total loss to building is less than $400 then you will allow paintiff one-half of such total loss. Ascertain the total loss as to the furniture and fixtures. If this equals or excels $250 allow plaintiff $150. If it is less than $250 allow plaintiff only three-fourths of such total loss.</p> <p>“Ascertain the total loss as to the stock of goods. If this equals or exceeds $3,700 allow plaintiff $1,500. If the total loss to goods is less than $3,700 allow plaintiff only fifteen thirty-sevenths of such total loss.</p> <p>“You are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony. In passing upon the weight to be given to the testimony of the witnesses you are to consider their demeanor on the stand, their interest, bias or prejudice in the case, if any appear, their relationship to the parties, the reasonableness or unreasonableness of their testimony, their opportunities for knowing the facts about which they testify and any and all other facts and circumstances which in your judgment would add to or detract from, their credibility. If you find for plaintiff you will allow six per cent interest on the account from sixty days after the receipt by defendant of the proofs of loss.”</p> <p>At the instance of the defendant the court gave the following instructions:</p> <p>“1. The court instructs the jury that you should not disregard the testimony of witnesses given by depositions for reason that such witnesses are not present and testifying in the case, but you should consider and weigh such evidence by the same rules as other evidence in the case.</p> <p>“2. The court instructs the jury that one of the questions submitted to them is whether the fire originated by any act, design or procurement of the plaintiff or through any evil practice done or suffered by him or by his privity or with his consent. In deciding this question every fact and incident connected with the fire and subsequent transactions as detailed in evidence before them and decide according to what they consider the most probable conclusion. The rule in civil cases like the present is different from what it is in criminal cases. In criminal cases the' question is as to the guilt or innocence of the crime and there the jury must be satisfied that the offense was committed beyond a reasonable doubt by the parties accused. In criminal cases if any doubt remains in the minds of the jury they are bound to give the accused the benefit of such doubt, but in civil cases like the present there is no question whether any crime has been committed. The question in this case is merely a question of greater or less probability and the jury in order to find a verdict for the defendant need not be satisfied of the complicity of the plaintiff in the burning in any other way or with any different degree of satisfaction than if the question were an. ordinary question in a civil case.”</p> <p>The court refused the following instructions asked by defendant:</p> <p>“1. The court instructs the jury that under the pleadings and evidence in this case plaintiff is not entitled to recover and your verdict must be for defendant.</p> <p>“2. The court instructs the jury that if you find from the evidence that after the policy sued on was issued and before the fire mentioned in the petition another fire occurred in said building, then it became the duty of the plaintiff immediately to notify defendant of such previous fire, and if plaintiff failed to give defendant notice of said first fire prior to the second fire, plaintiff is not entitled to recover.</p> <p>“3. The court instructs the jury that if you believe and find from the evidence that plaintiff intentionally caused the fire which destroyed the building he is not entitled to recover and you ought to find for the defendant.”</p> <p>The verdict was for plaintiff in the sum of nineteen hundred and sixty-one dollars. A motion for new trial proving of no avail, defendant appealed to this, court.</p>

<p>Appeal from St. Louis City Circuit Court. — Row. John A. Blevins, Judge.</p> <p>(1) The trial court should have sustained the objection of defendant to the introduction of any testimony. Failing to do this, the court should have given the instruction in the nature of a demurrer to the evidence at the end of plaintiff’s case, (a) Plaintiff on its part complied with all the terms of the contract sued on. "Weber v. Ins. Co., 5 Mo. App. 51; Parks v. Heman, 7 Mo. App. 18; McNees v. Ins. Co., 61 Mo. App. 335. (b) The delivery of scale f. o. b. East St. Louis, was a condition precedent to recovery, and plaintiff must allege in its petition that it performed this condition of the contract on its part. Bayse v. Ambrose, 32 Mo. 484; Denny v. Kile, 16 Mo. 450; Turner v. Mellier, 59 Mo. 535; Larrimore v. Tyler, 88 Mo. 661; Roy v.' Botelor, 40 Mo. App. 222; Price v. P. & F. Co., 77 Mo. App. 240; Lumber Co. v. Lumber Co., 89 Mo. App. 144; R. S. 1899, sec. 634. Every fact which plaintiff must prove to maintain its suit is constitutive and must be alleged. Pier v. Heinrichhoffin, 52 Mo. 333; Sidway v. Mo. Stock Co., 163 Mo. 375; Harrison v. Kansas City, 50 Mo. App. 336. (c) The contract required the scale to be delivered f. o. b. East St. Louis, and the petition alleges “plaintiff delivered said scale at and upon the premises of defendant,” thereby negativing the fact that it delivered the scales as the contract requires. If this contract was modified so that the vendor could deliver the scale upon the defendant’s premises such change should have been pleaded, and failing to do so, no evidence of such modification was admissible. Wilson v. Russeler, etc., 91 Mo. App. 280; Halpin v. School District, 54 Mo. App. 375. (d) The plaintiff contracted to furnish, free of charge, an expert scale builder to frame timbers and superintend erection of scale. The petition fails to allege that plaintiff furnished or offered to furnish an expert to do this work, (e) The contract provides: “We guarantee the scale to be our best grade, durable and accurate, in fact, a perfect weighing machine.” There is no allegation that plaintiff delivered or offered to deliver a scale of that character. Fruit Co. v. McKinney, 65 Mo. App. 220; Silberman v. Clark, 96 N. Y. 522. (2) Both the pleading and evidence demonstrate .that plaintiff is not entitled to recover. In order to recover for a breach of contract, plaintiff must aver and prove performance on its part. Billups v. Daggs, 38 Mo. App. 367; Fuchs v. St. Louis, 133 Mo. 197.</p> <p>(1) There was abundant evidence to support the findings of fact made by the court; in fact, the appellant does not contend that the findings of fact made by the court are unsupported by the evidence. This court will therefore assume the facts to be as found by the lower court in passing upon the points involved. Nichols v. Carter, 49 Mo. App. 405. (2) Appellant’s first point is that the pleadings and evidence show that the plaintiff did not comply with the written contract sued on, and that it did not allege and show that the scales were delivered f. o. b. East St. Louis, as the contract required. We take issue with the appellant in assuming that the contract required the scales to be delivered f. o. b. East St. Louis. Lumber Co. v. Railroad, 54 Neb. 325; Company v. Coal & Coke Company, 101 Ala. 481; Fruit Co. v. McKinney, 65 Mo. App. 220. (3) Appellant next contends that plaintiff did not offer defendant a scale of the best grade, a durable and a perfect weighing machine as it guaranteed. If the plaintiff failed to live up to its warranty the burden was on the defendant to show that fact. Branson v. Turner, 77 Mo. 495.</p>

<p>Appeal from Monitean Circuit Court. — Ho». Jas. E. Hazell, Judge.</p> <p>(1) Section 415 of the Revised Statutes as to settlement of priorities in attachments, is construed hy the Supreme Courtin its general application. Stephenson v. Stationery Co., 142 Mo. 13; Drake on Attachments, 455; Talbot v. Harding, 10 Mo. 350; Prichard v. Toole, 53 Mo. 358; Harris v. Harris, 25 Mo. App. 501. (2) The money was not borrowed of the bank for the firm, and if it had been, the bank could not claim a prior lien to that of the firm creditors. Farmers Bank v. Bayliss, Hndgers, 35 Mo. 428; Farmers Bank v. Bayliss, 41 Mo. 274; Hill v. Bell, 111 Mo. 35; Hundley v. Farris, 103 Mo. 79; Goddard-Peek Grocery Co. v. McCune, 122 Mo. 426; Level v. Farris, 24 Mo. App.'445; Skavdale et al. v. Moyer, 46 L. R. A. 480. (3) In the case at bar, H. B. Sappington filed his motion verified by ■affidavit, for the distribution of tbe firm assets to firm •creditors, and not to the Moniteau National Bank, the individual creditor of Renshaw. He had the right to this, though it was not absolutely necessary, the assets •of the insolvent firm being in the receiver’s hands for administration. Freednian v. Holberg, 89 Mo. App. •340. (4) The appointment of a receiver did not •change the rights of attaching creditors of the firm. Their attachment lien was superior to that created by ■a prior attachment of the same property by the Moniteau National Bank — an individual creditor of Renshaw, one of the partners of the firm. First National Bank v. Brenneisen, 97 Mo. 145. This case is nearly on ■all fours with case at bar.</p> <p>(1) It is conceded by all parties that an attachment by garnishment was proper, and that attachments first in point of time must be first paid. Westheimer ■& Sons v. Griller, 84 Mo. App. 122; Stephenson v. Stationery Co., 142 Mo. 13. (2) The attachment of the ■appellant was abandoned, when it, through attorneys, applied for and secured the appointment of a receiver. ■3. Am. & Eng. Ency. of Law (2 Ed.), 239; Mooney v. Kavanaugh, 4 Me. 277; Bowley v. Bowley, 41 Me. 542; G-athercole v. Bedel, 65 N. H. 211. (3) In order to give partnership creditors priority over individual creditors, the objecting partners must make an exhibit of the partnership assets and furnish the court with a list •of the partnership creditors and a statement of their •claims. There was nothing of this kind in this case. Edwards & Son Brokerage Co. v. Rosenheim, 74 Mo. App. 626; Bates on Partnership, section 820; Reybum v. Mitchell, 106 Mo. 365; Groddard-Peck Grocery Co. v. McCune, 122 Mo. 426; Hardware Co. v. Randell, 69 Mo. App. 345.</p>

— How. Samuel Davis, Judge. (1) We earnestly contend that the court erred in excluding the contract of shipment from the evidence. The defense, that no notice of claim, for injury or damage to the cattle had been given to the defendant within one day after the cattle had been delivered to plaintiffs, at destination, nor before said cattle had been mingled with other stock, could not be made or sustained without this contract going into evidence.

— Hon. George F. Longcm, Judge. (1) The court below held the defendants liable as. partners, explicitly stating so in its findings and instructions.

— How. W. Tf. Graves, Judge. (1) When real property is placed in the hands of a broker for sale, he is entitled to his commission if he brings about a sale by his own exertions, or introduces a purchaser, or gives his name, whereby a sale is perfected with the principal. Wétmore v. Wagoner, 41 Mo. App. 509; Henderson v. Mace, 64 Mo. App. 393; Stinde v. Blesch, 42 Mo. App. 278.

— No». James Gibson, Judge. (1) The court should have granted the instruction in the nature of a demurrer to the evidence asked by, appellant at the conclusion of respondent’s evidence, Cohn v. City of Kansas, 108 Mo. 387'; Village of Kewanee, 80 111. 119; Cressy v. Town of Postville, 59 Iowa 62; Chicago v. Bixby, 84 111. 32; Huntingburgh v. First, 15 Ind.

— How. II. G. Timmonds, Judge. (1) Where the acts and admissions of a party clearly' show that he did not rely upon the representations of the other party, he is not entitled to the finding of a jury on his own testimony that he did so rely. State v. Nelson, 118 Mo. 124; State v. Hamilton, 171 Mo. 377.

— -Hew. Edw. P« Gates, Judge. (1) Plaintiff’s instruction on measure of damages is too vague and should not have been given. Hawes v. Stock Yds. Co., 103 Mo. 60; Camp v. Railroad, 94 Mo. App. 272; Badgley v. St. Louis, 149 Mo. 134; Stephen v. Railroad, 96 Mo. 207. (2) One of the jury was unable to write his name and hence there was not a competent jury in the cause. The court erred in not granting a new trial for this reason.

— If cm. Geo. F. Long an, Judge. Filed brief on merits. (1) The appeal in this case should be dismissed for the reason that appellants have filed no abstract of the record as required by statute and the rules of this court. They have filed a statement containing some of the matters, which would properly belong to an abstract of the record, but they have filed no abstract nor anything which purports to he an abstract.

— How. 11. G. Timmonds, Judge. (1) This is a ease strictly in equity, and the issues should not have been tried by a jury. 22 Encyclopedia of Pleading and Practice, pages 135, 136 and 138; In re Ferguson Estate, 124 Mo. 583; State to use Kelley v. Thornton, 56 Mo. 325; Dillion, Admr., v. Bates & Co., 39 Mo. 299; Carr v. Waldron, 44 Mo. 393.

— Hon. J. B. Perkins, Judge. (1) John Weston having had experience in mining and having worked in said drift three months before the accident, knew the condition of the drift and roof, and it appearing from the evidence that the falling of dirt and rock from the roof could not be prevented, it was one of the ordinary risks of the business, and risk assumed by John Weston.

— Hon. Jno. P. Butler, Judge. (1) The alleged movement of the car claimed by plaintiff to have caused the accident resulting in his injury was necessary and incident to the usual, ordinary and proper operation and management of defendant’s train, and plaintiff can not, therefore, recover on account thereof. 4 Elliott on Railroads, 2476, sec. 1589; Fetter on Carriers, see. 81; Saxton v. Railway, 72 S. W. 717; Wait v. Railway, 165 Mo. 612; Bartley v. Railway, 148 Mo. 124; Hite…

Appeal-from Jasper Circuit Court. — -Ho». Hugh Dabbs, Judge.