Volume 106 — Missouri Appeal Reports

— Hon,. Hugh Dabbs, Judge. (1) The respondent’s liability is, probably, to be measured by the law governing that, kind or class of bailments, designated mandatjim or mandate. Eddy v. Livingston, 35 Mo. 487; Frengbrure v. Ingler, 17 Mass. 233; Zane on Banks and Banking, sec. 171, p. 293; Scliouler on Bailments, sec. 14; Lawson on Bailments, 13 and 64.

— Bow. John P. Butler, Judge. ■ (1) The release pleaded by defendant was nudum pactum as between the defendant and the plaintiff. Winter v. Railway, 160 Mo. 159; Harrison Bros. v. Iron Works, 96 Mo. App. 348. (2) The most that can be said, of the release is, that, if not obtained by fraud, it would bar plaintiff from ever molesting the property turned over by defendant to Lindley Baldridge and Stuart.

— Hon. J. H. Slover, Judge. (1) The parties to the trial of the issues in this ease were not concerned with the controversy between plaintiff and defendant, and the interpleader was bound to recover upon its own title. Nelson Hist. Co. v. Hubbard, 53 Mo. App. 23; Hewson v. Tootle, 72 Mo. 632; Dry Goods Co. v. Carr, 83 Mo. App. 318. (2) The single issue was the interpleader’s ownership of the money.

— Ho». W. W. Graves, Judge. (1) Tire Missouri statute of limitations (fifth clause of section 4273, Revised Statutes of 1899), is a bar to the cause of action set out in the petition as the petition alleges, the fraud was committed in 1889 and suit was not brought until 1901. R. S. 1899, sec. 4273; Ruff v. Millner, 92 Mo. App. 620.

— How. J. D. Perkins, Judge. (1) The Fitch mortgage under any circumstances, was only constructively or legally fraudulent and void, as to that part of plaintiff’s debt contracted between date of execution, and its being filed for record; and plaintiffs’ judgment including indebtedness contracted before the execution of said mortgage and as to which said mortgage, under the finding of facts, was and is valid, plaintiffs can not hold garnishee for any part of • the judgment…

— How. W. B. Teasdale, Judge. (1) Defendant’s instruction No. 1 stating the doctrine of avoidable consequences is the law in this State and was properly given here. Dietrich v. Railway, 89 Mo. App. 40; Kansas City v. Morton, 117 Mo. 459; Teglér v. Kansas City, 95 Mo. App. 166; Spry v. Railway, 73 Mo. App. 211; Shelby v. Railway, 77 Mo. App. 212; Smith v. Kansas City, 128 Mo. 31; Ice Co. v. Tamm, 90 Mo. App. 197; Ludlow v. Village, 43 Barb. 493; Simpson v. Keokuk, 34 Iowa 568.

<p>Appeal from Jackson Circuit Court. — Ho». J. II. Slover, Judge.</p> <p>(1) Instructions must not cite evidence or matters immaterial or calculated to mislead. Elliot v. Keith, 32 Mo. App. 588; Georgan v. Wabash, 40 Mo. App. 447; Rapp v. Yogel, 45 Mo. 524; Willis v. Stevens, 24 Mo. App. 504; Proctor v. Loomis, 35 Mo. App. 488; Felix v. Shirley, 60 Mo. App. 625; Koontz v. Kauffman, 31 Mo. App: 420; State v. Hibler, 149 Mo. 478; Barr v. Kansas City, 105 Mo. 558; Newall v. St. Louis, 5 Mo. App. 259. Matter about following on a public street is misleading. Keightl v. Egan, 65 111. 237. (2) An instruction on slander where the words have either a bad or an innocent meaning, is erroneous unless the jury is required to find evil intent. Odgers on L. and S. 53; Crystal v. Craig, 80 Mo. 373; Walker v. Hoefner, 54 Mo. App. 558; Unterberger v. Sharp, 51 Mo. App. 111. (3) The words “having” and “taking” are not synonymous or equivalent. Proof even* of equivalent words is insufficient. Mix v. McCoy, 22 Mo. App. 493; Wood v. Hillbrush, 23 Mo. App. 398; Crystal v. Craig, 80 Mo. 374; Birch v. Benton, 26 Mo. 153. (4) Arrest is not accomplished in the absence of intent, physical detention or threats, with a display of present force reasonably calculated to induce reasonable fear of present violence in the mind of a reasonable person. And the elements, if omitted from evidence or instruction, are fatal. Same is true of assault. Eney. of Evidence, “Assault;” 2 Greenl. on Evidence, 83; Metcalf v. Connor, 5 Litt. (15 and 16 Ky.) 370; Sterns v. Sampson, 59 Me. 568; Dagenhardt v. Heller, 93 Wis. 662; State v. Stonestreet, 92 Mo. App. 220; Douglass v. Kansas City, 147 Mo. 428; McCaskey v. Garnett, 91 Mo. App. 359; Reickle v. Bentele, 97 Mo. App. 52. (5) Nor unless there is fear of violence founded upon reasonable basis. 1 Blackstone 130; Wilkinson v. Hood, 65 Mo. App. 491. (6) An instruction authorizing damages for emotion for a legal wrong without requiring the jury to find either bodily injury or malice, insult or oppression, is error. Deming v. Chicago, 80 Mo. App. 152; Alvers v. Merchants, 138 Mo. 140.</p>

— Hob. James Gibson> Judge. (1) What were reasonable precautions in this case for the protection of the traveling public, was a question that' should have been left for the jury to decide. Plaintiff’s instruction No. 1 erroneously declares as a matter of law that it was the duty of defendant to erect barriers mounted with lights. Campbell v. Stan-berry, 85 Mo.

— Ho». Jas. E. Eaeell, Judge. (1) The judgment in the attachment proceeding was only voidable, and is impregnable to collateral attack. Crowley v. Wallace, 12 Mo. 147; Hardin v. Lee, 51 Mo. 244; Alderson on Judicial Writs and Process, ch. 22, sec. 100, p. 176. (2) A judgment which is amendable is not void. Rosenheim v. Hartsock, 90 Mo. 357. (3) Amendability is the experimentum crucis of legal validity. Rosenheim v. Hartsock, ante; Bobb v. Bruere, 23 Mo. App. 604.

— Hon. John P. Butler, Judge. (1) The court committed' error in refusing the demurrer to the evidence, and also in refusing defendant’s peremptory instruction to find for defendant, requested at the close of all the evidence. Callahan v. Bridge Co., 170 Mo. 473; Reddington v. Railroad, 108 Iowa 95; Malone v. Railroad, 65 Iowa 417; Foley v. Railroad, 64 Iowa 654; Deppe v. Railroad, 36 Iowa 52.

— Ho». J. D. Perkins, Judge. (1) The plaintiff’s petition does not state facts sufficient to constitute any cause of action nor to entitle the plaintiff to an injunction against the defendants preventing the opening and maintaining of the ditch in question. Rochester v. Mining Co., 86 Mo. App. 447; Arnold v. Bennett, 92 Mo. App. 156.

— Hon. George F. Long cm, Judge. (1) We admit that there are cases to the effect that where one is actually in possession of an office, performing its duties with color of title, before the right to the office has been determined against him by a competent tribunal, the municipality can not afterwards be compelled to pay the same salary to the de jure officer. But this rule by no means is uniform.

<p>1. REAL ESTATE BROKER: Commission to Sell: Written Contract. A real estate broker is entitled to his commissions where he makes a sale according to instructions and in good faith and his principal can not relieve himself from liability by refusal to consummate the sale or by disabling himself from performance; and the fact that there is no written contract will not defeat the broker’s recovery.</p> <p>2. -: -: Pleading: Variance. Where a complete sale of the property was only prevented by the wrongful refusal of the principal the law regards the sale as having been made on the part of the agent.</p> <p>8. -: Purchaser: Deed to Another. A real estate broker Informed his principal that H. was the purchaser but tendered him a deed to W; held, this constituted no ground for refusal to consummate a sale where it was explained that the agent wished the title to go in this way in order that H. might secure the money to make the purchase.</p> <p>4. -: Contract: Instruction: Honest Error. An instruction that if a jury believed the real estate broker complied with his contract submits a question of law and was therefore error; but in this case harmless, since the verdict was for the right party.</p>

Nat M. Shelton, Judge. (1) The city of Macon is a city of the third class. Its powers and duties are defined by statute. R. S. 1899, secs. 5855, 5861, 5864, 5867; Dry Goods Co. v. Railway, 41 Mo. App. 63. (2) Conceding then the city passed an ordinance to change the grade of Weed street, it became liable for all 'damage thereby occasioned to the abutting landowners, regardless too of the question whether the work was done in a careful or in a negligent manner. Mclntirev.

— Ho». Henry M. Barney, Judge. (1) The court erred in giving plaintiff’s instruction number 1 over objection of the defendant, for the following reason: Because plaintiff’s said instruction omits to state that it was the positive duty of the plaintiff to stop, look and listen a proper distance from the crossing and to continue to look out for engines after he started forward again toward the track.

Worth Circuit Court. — Wo». Gallatin Craig, Judge. (1) Appellant must have an appealable interest in tbe subject-matter of tbe suit. If be bas not, bis appeal will be dismissed. Kinealy v. Macklin, 67 Mo. 95. (2) A person is entitled to appeal if be claims that on a proper final settlement there will be funds on band for bim. In re Danfortb Estate, 66 Mo. App. 586. (3) Tbe interest of party appealing must be apparent on tbe record. Zumwalt v. Zumwalt, 3 Mo. 369.

— How. N. M. Shelton, Judge. (1) Plaintiff assigns as error in the above-entitled cause the action of the court- in awarding alimony in gross to the defendant in the sum of three hundred dollars, after having found that plaintiff was the innocent and injured party, and after having decreed to plaintiff an absolute divorce from defendant for defendant’s fault, R. S. 1899, sec. 2929; Mclntire v. Mclntire, 80 Mo. 470.

— How. John A. Eockaday, Judge. (1) Defendant’s intestate did not execute and deliver the contract. It is in the handwriting of Clore, the plaintiff.

— Rom J. W. Alexander, Judge. (.1) The court erred in admitting over defendant’s objections, the testimony of witnesses, East, Drordorff, Dye, Smith, Johnson, Sutherland and Baker. The evidence of these witnesses was not admissible in rebuttal. Chrystal v. Craig, 80 Mo. 367. The court erred in overruling appellant’s objection to the testimony relating to stock of neighboring yard.

— Ho». David H. Eby, Judge. (1) The court erred in allowing policy of insurance, “Exhibit A” (No. 2462847) to be received in evidence because it failed to prove tbe contract alleged. There is but one cause of action, though several different items of property are damaged or destroyed. Rissler v. Ins. Co., 150 Mo. 373.

Louis City Circuit Court. — Row. Warwick Hough, Judge. The demurrer to the plaintiff’s evidence should have been sustained (1), because the plaintiff and the motorman were fellow-servants, and the Revised Statutes 1899, sec. 2873, do .not apply to street railways. 1 Elliott on Railroads, sec. 4; Elliott on Roads and Streets, pp. 557-558; Bloxham v. Railroad, 36 Fla. 539, 18 South. 446, 29 L. R. A. 209; Railroad v. Railroad, 2 Duv. (By.) 175; Gyger v. Railroad, 136 Pa.

<p>Appeal from St. Louis City Circuit Court. — How. Jas. B. Kinealy, Judge.</p> <p>(1) There being no evidence whatever to show that Jourdan had any authority to contract for the payment of rewards, the defendant’s demurrer to the evidence should have been sustained. Houghton v. Ellis, 73 Pac. (Colo.) 752; Weeks on Attys. (2 Ed.), secs. 215-219. (2) The instruction given for plaintiff does not submit to the jury the questions of fact that, under any view, arose in the case. They are: Did Jourdan promise and agree to pay the reward after plaintiff had! been discharged from the posse if he would secure the final conviction of Daly? Had Jourdan any power or authority to so contract on behalf of defendant? It is clear that the plaintiff could not recover unless the defendant contracted to pay after plaintiff ceased to be a member of the posse. Cornwell v. St. Louis Transit Co., 73 S. W. 305. (3) Every new agreement entered into for the purpose of carrying into effect any of the unexecuted' provisions of a-previous illegal contract is void. Coneter v. Robinson, 14 S. & M. (Miss.) 18. Any subsequent contract which carries into effect an original illegal contract is itself illegal. Adams v. Bowen, 8 S. & M. (Miss.) 624. (4) Where a suit is brought to recover for services, part of which is illegal, there can be no recovery, however small the illegal part may be. Bixby v. Moore, 51 N. H. 420; Sullivan v. Horgan, 17 R. I. 109; 20 Atl. 232; Pool v. City of Boston, 5 Cush. 219. Here the arrest and conviction, made and secured while plaintiff was in office and not entitled to receive the reward, are so intermingled, connected and interwoven with the alleged new contract as to make them inseparable, and not the subact of- apportionment, and the whole contract, old and new alike, is illegal.</p> <p>• (1) The point made by appellant that respondent, at the time he aided in taking Daly in charge and conveying him to the city jail, was a police officer, paid for Such servicés by the public 'and so was not within the terms of the offer of reward made by appellant, was not brought to the attention of the trial court in any appropriate manner. (2) An exception can not be predicated upon mere non-direction concerning a matter to which, the court’s attention was not specifically challenged at trial. Feary v. 0 ’Neal, 149 Mo. 477; Wheeler v. Bowles, 163 Mo. 409. (3) Where a case originates in justice court, and no pleading is filed on the part of defendant, it is the duty of defendant on trial in the circuit court to present its claims as to the legal deductions to he drawn from the evidence by appropriate instructions, and in case this is not done, even though usury or any other matter may appear from the evidence which would justify a finding against a transaction, still the court is not hound to instruct on such proposition in trial by jury, nor in trial by the court, to consider it in its findings unless requested to do so. Wickersham v. Jarvis, 2 Mo. App. 279; More v. .Climer, 12 Mo. App. 19; Schell v. Loan & Savings Association, 150 Mo. 164.</p>

<p>Appeal from Montgomery Circuit Court. — Hon. E. M. Hughes, Judge.</p> <p>(1) The plaintiff having by his answer raised the point that there was an improper joinder of parties plaintiff and an improper joinder of causes of action in the interpleaders pleading, the point should have been sustained as the proof showed there was no possible reason why wholesale merchants residing in different cities, having different contracts and seeking to recover different amounts should be joined as common litigants in one action and 'in one count of the pleading in said action. Hoagland v. Railroad, 39 Mo. 451; State v. Beasley, 57 Mo. App. 570; Richey v. Branson, 33 Mo. App. 418; Crenshow v. Ullman, 113 Mo. 633; Turner v. Lord, 72 Mo. 113. (2) In an issue made upon an inter-plea in an attachment the only question for trial is the right of property and the only issue which can be submitted is whether the property attached was the property off the interpleader or not. Ency. PI. and Pr., p. 841, and note; Rudskoff v. Rogers, 34 Mo. App. 131; Wills v. Thompson, 61 Mo. 632; Noland v. Deutch, 23 Mo. App. 1; Springfield Engine Co. v. G-lozier, 55 Mo. App. 95; Williams v. Broden, 57 Mo. App. 317; Bech v. Wisdy, 63 Mo. App. 239. (3) Money placed by A in the hands of B to be paid to C does not become the property of C until he is advised of the deposit and consents to it. Ridge v. Olmsted, 73 Mo. 579; Nicholson v. Walker, 25 Mo. App. 374; Kerthly v. Pitman, 40 Mo. App. 603; Wilier v. Cittle,.66 Iowa 431. (4) An agreement between two or more persons that one shall pay money in his hands to a third person is not in the absence of notice or acceptance of or assent to the arrangements hy such third person irrevocable and hence does not create such a trust for or interest in such third person as to the fund as will prevent its attachment in a suit against the debtor. Kelly v. Babcock, 48 N. Y. 318; Kelly v. Movus, 40 N. Y. 432; Bank v. Grand Lodge, 98 U. S. 123; Crowell v. Hospital, 27 N. J. Eq. 654. (5) Parties to a contract made for the benefit of a third person may rescind’ without the permission of such third person if rescission is made before the third person has given his assent. 1 Beach on Modern Law of Contracts, secs. 201-2, and cases cited; Davis v. Calloway, 30 Ind. 112, 95 Am. Dec. 670; Gilhert v. Sanderson, 56 Iowa 349, 41 Am. 103; Jones v. Higgins, 80 Ky. 409; Trumble v. Strother, 25 Ohio St. 378. (6) Where the supposed assignor retains the subject under his control by delivering the order not to the assignee but to his own agent the transaction is not allowed to have the effect of an equitable assignment. Rodeck v. Gandell, 15 Eng. L. and Eq. 22; Kimball v. Donald, 20 Mo. 581; In re Cleary, 9 Wash. 605; Marvell v. Wooten, 16 Beav. 197; Gerrard v. Lauderdale, 2 Russ. & Myl. 451; Brockemeyer v. Bank, 40 Mo. 744; Geary v. Page, 9 Bosw. (N. Y.) 290. (7) To constitute a valid assignment there must be a perfected transaction between the parties, intending to vest in the party to be provided for a present right in the chose in action in question, even where the circumstances do not admit of its immediate exercise. In accordance with this doctrine, a mere executory agreement by a debtor to pay- a certain debt out of a designated fund then due or to become due can. not operate as an equitable assignment, since the alleged assignor would in that case retain control over the subject-matter. Christmas v. Russell, 14 Wall. (H. S.) 69; Dillon v. Raymond, 21 Wall. (U. S.) 439; Story v. Hull, 143 111. 506; 1 Ency. of Law (2 Ed.), p. 1068, and cases cited. (8) The bill of sale which is alleged to be an assignment fails to declare all the uses to which the fund is to be applied but reserves to Wade tbe power to declare future uses and preferences and hence tbe alleged assignment is inoperative and void and fraudulent. 15 Ency. of Law (2 Ed.), p. 443; State v. Benoist, 37 Mo. 500; Sheldon v. Dodge, 4 Dem. (N. Y.) 217; Grover v. Wobeman, 11 Wendy 203; Owen v. Arvis, 26 N. J. L. 22; Culón v. Mosley, 25 Tes. 374; Barnum v. Hemp-stead, 7 Paige (N. Y.) 568; Hyslop v. Clarke, 14 Johns. (N. Y.) 458. (9) The bill of sale was a conveyance to the use of Wade and is void under our statutes. By tbe terms of tbe bill of sale Wade could draw tbe entire fund and all be bad to do was to refuse to certify that tbe bills were correct. Tbe bank was powerless to pay tbe bills under the bill of sale. It could pay them only upon tbe order of Wade, bence Wade retained full control of tbe fund and it was a conveyance by himself to bis own use. Tbe bank was to pay back to Wade any surplus after Wade bad refused to “O. K.” bills. Revised Statutes, sec. 3327; Halcben v. Winters, 71 Mo. 30; Moluska Mfg. Co. v. Steele, 36 Mo. App. 502; Biglow v. Struyer, 40 Mo. 195; Grocer Co. v. Miller, 53 Mo. App. 107; 15 Ency. of Law (2 Ed.), p. 431-2 ; 3 Ency. of Law (2 Ed.), p. 81 et seq.; 69 Mo. 442.</p> <p>(1) Neither tbe contract by which tbe trust was created, nor tbe bill of sale which was a mere incident to it, reserves to Wade tbe power “to declare future uses and preferences,” as claimed-by appellant under this point. Tbe purposes and uses for which tbe fund was to be applied was specific and certain, to-wit, tbe payment of tbe indebtedness on the goods of which Hays & Rodgers, parties to tbe contract, became purchasers, and bad an interest in seeing paid. ■ A provision that any balance should' be returned to Wade would not malm tbe provision fraudulent because that is a provision that tbe law would have added bad it not been agreed upon. Douglas v. Cissna, 17 Mo. App. 44. Nor did the provision that Wade should check over the various bills and approve them if correct. State v. Benoist, 37 Mo. 500. (2) Appellant contends that the'fund was subject to garnishment by Alexander because the parties owning the indebtedness had not been notified of the making of the contract for their benefit and had not assented to it. The cases cited have no bearing on this case. The line of decisions of this State, beginning withAgnew v. McNulty, 7 Mo. 62, and ending with Whiteside v. Tall, 88 Mo. App. 168, simply hold that where a creditor directs his debtor to pay the debt, or a part of it, to a third person, and the debtor, upon no new consideration, agrees to do so, that until such third person is notified and gives his assent, that the authority to the debtor to pay such third person may be revoked, and the debt remains the property of the creditor giving such direction. Coleman v. Hatcher, 77 Ala. 217; Kelly v. Roberts, 40 N. Y. 432; Berly v. Taylor, 5 Hill 533; Williams y. Fitch, 18 N. Y. 546; Lawrence v. Fox, 20 N. Y. 268; Gridley v. Gridley, 24 N. Y. 130, and Lowry v. Stewart, 25 N. Y. 239; Canal Company v. Westchester County Bank, 4 Denio 97; Dingeldien v. Railroad, 37 N. Y. 575; Rogers v. Gosnell, 58 Mo. 589; State ex rel. v. Gaslight Co., 102 Mo. 482; Ellis v. Harrison, 104 Mo. 276; State ex rel. v. Loomis, 88 Mo. App. 500; Crone v. Stinde, 156 Mo. 262.</p> <p>STATEMENT.</p> <p>Defendant Wade owned a general stock of merchandise, in the city of Montgomery, which he, in February 1903, offered to sell to Hays and Rogers of that city. He owed between, seventeen and eighteen hundred dollars on his stock of merchandise to wholesale and jobbing houses from whom he had purchased the goods. Hays and Rodgers knew of this indebtedness and informed Wade that they would not purchase the goods unless he would deposit in the Union Savings Bank of Montgomery City, Missouri, eighteen hundred dollars for the purpose of paying his commercial creditors. Wade agreed to make the deposit. The president of the bank was called in and agreed that the bank would accept the deposit and pay it out to Wade’s commercial creditors, the bills to be approved by Wade before payment. Pursuant to this understanding, Wade executed, acknowledged and delivered the following bill of sale and contract:</p> <p>“Know all men by these presents, that the undersigned Charles Wade, of Montgomery City, Montgomery county, Missouri, do sell, assign, transfer and set oyer unto the said George C. Hays and James K. Rodgers, the following described personal property, to-wit: One delivery wagon, and one black horse, also all of his stock of goods now being in the Moore building in block 21 in Montgomery City, Montgomery county, Missouri, consisting of a general stock of merchandise, dry goods, notions, clothing, boots and shoes, rubber goods, groceries, tinware, hardware, glass and queensware, all furniture and fixtures used in and about said building in or connected with the store of said Wade, and all good's and fixtures of every kind used in and about the store of said Wade.</p> <p>“Possession of said stock of goods is hereby turned over and delivered! to said Hays and Rodgers, this seventh day of February, 1903.</p> <p>“The said Hays and Rodgers hereby assume and accept as cash coupon book of duebills which are outstanding and issued by said Wade to an amount equal to the sum of one hundred dollars and no more.</p> <p>“The said Wade agrees to pay off and discharge all bills he now owes for goods bought by him which he says now amounts to about $1,800 and the sum of 1,800 is to be placed in the hands of the Union Savings Bank to pay such bills. Such bills are to be approved by said Wade and when so approved to he paid by the Union Savings Bank out of the said sum of eighteen hundred dollars so deposited with said Union Savings Bank by said Wade and no part of said $1,800 is to be paid back to said Wade by the said Union Savings Bank until all such bills owing by said Wade are paid.</p> <p>“In witness whereof, I have hereunto signed my name this seventh day of February, 1903.</p> <p>“Charles Wade.”</p> <p>Wade deposited seventeen hundred and fifty dollars in the bank; for the benefit of his creditors and delivered the goods to Hays and Rodgers. The bill of sale and contract were duly recorded in the recorder’s office of Montgomery county. Wade also deposited with the bank his books of account and the bills rendered by the merchants to whom he was indebted for goods. Within two days after making the deposit (February 7, 1903) Wade approved bills due to sundry of his creditors, aggregating $1,096.62, and the. bank paid them. On February 9, 1903, plaintiff, who is not a commercial creditor of Wade, commenced a suit by attachment against Wade and on the same day had the bank garnished. On interrogatories exhibited to it, the bank denied any indebtedness to Wade and set out fully the circumstances under which the deposit of the seventeen hundred and fifty dollars was made and claimed the balance in its hands at the date of the service of process of garnishment ($635.08) was due to the following creditors of Wade for whose benefit it claimed the deposit was in part made, to-wit:</p> <p>“M. M. Secor Trunk Co..............$ 28.70</p> <p>C.A. Weimer........■............... 16.50</p> <p>J. M. Houston Grocery Co.......... 86.20</p> <p>Prairie Milling Co.................. T1.40</p> <p>Republic Oil Co..................... 8.48</p> <p>Taylor-Newal Co.................. 121.50</p> <p>I. Harris & Co...................... 66.00</p> <p>H. Petring Grocery Co............... 86.22</p> <p>Meyer-Schmidt Grocery Co.......... 25.36</p> <p>The Goddard Grocery Co............ 113.45</p> <p>“Total.................•.........$563.81.”</p> <p>And alleged that it had no interest in the fund and asked to be protected by the court in its disbursement. The creditors above named appeared and by leave of court filed their interplea claiming the fund. Other claimants filed their interplea which, omitting caption, is as follows :</p> <p>“Now comes the National Biscuit Company, a corporation, the Bartlett Candy Company, a corporation, and the Gunn Fruit Company, a corporation, and by leave of court first had and obtained', file herewith their claims against the defendant, Charles Wade, as cointerpleaders with the creditors who have heretofore filed their interplea herein; and they hereby adopt the interplea hereinafter filed by said creditors and join with said creditors in said interplea.”</p> <p>Plaintiff answered the interplea., admitting that Wade owed to each of them the amount set opposite their respective names but denied that they or either of them had any interest in the fund and alleged that the fund belonged to Wade, was deposited to his individual account and therefore subject to garnishment. The books of the bank show that the seventeen hundred and fifty dollars were deposited to the credit of the “Wade fund,” and in respect to it, the president of the bank testified, on cross-examination, as follows:</p> <p>“ Q. He deposited that money in your bank under the entry of the Charles Wade Fund? A. Yes, sir, it was left there that way.</p> <p>“ Q. And you had it the same as any other deposit there? A. No, sir.</p> <p>“Q. I mean by that, Doctor, you didn’t keep $1,750 in specie separated from your other fund's? A. No, sir, it was entered up as the Charles Wade fund.</p> <p>“ Q. But you didn’t set aside any particular money as representing that fund in dollars or bills, did you? A. Just entered it up that way on our books.</p> <p>"Q. And instead of drawing it out by check his method of drawing it out was to O.K. a certain bill and yon paid it? A. Give ns an order to pay it.</p> <p>‘ ‘ Q, Give an order to pay it? A. Yes, sir.</p> <p>“Q. Then it was deposited subject to his order? A. We have got orders and checks both.</p> <p>"Q. I say it was deposited subject to his order? A. Yes, sir, in that way.</p> <p>“Q. Whenever he presented an order to your bank? A. Whenever he 'presented an account; I wouldn’t have honored a check under the circumstances.</p> <p>"Q. You would have honored an order on a bill? A. Yes, sir.</p> <p>"Q. Whether that bill was correct or whether he owed it you had nothing to do with it? A. No, sir.</p> <p>"Q. He could have presented a bill the next day for $1,750 and told you it was correct and you would have paid it? A. No, sir; there was various bills, I understood.</p> <p>"Q. Was there any specification as to who the bills were payable to ? A. The names were mentioned, but I don’t remember; I didn’t pay much attention to them.</p> <p>"Q. What names were mentioned? A. I couldn’t tell; there were from eight to fifteen bills somewhere along there.</p> <p>"Q. Did you make an entry of any name at all? A. I didn’t until Mr. Lafferty came around and presented some accounts.</p> <p>"Q. At the time I am talking about ? A. No, sir.</p> <p>"Q. At the time the fund was put in there you made an entry of no name at all? A. No, sir; I did not; he left the books there with the bills in them and would come around from time to time and get the bills out and tell us to pay them.</p> <p>"Q. And what was to be done with the remainder if there was any remainder after the bills were presented? A. We would of course give it back to him, certainly would.</p> <p>‘ * Q. You paid such bills as were presented up until the attachment? A. Yes, sir.</p> <p>“Q. And after the attachment Mr. Lafferty presented an order to you signed’ by Charles Wade for the payment of these bills, on March 16th, didn’t he? A. If he did I never noticed they were signed by Charles Wade.</p> <p>‘ ‘ Q. You remember something being presented by Mr. Lafferty ? A. I remember him bringing about this amount there, yes, sir; he gave me a copy of it and I filed it away there.</p> <p>‘ ‘ Q. You remember that was after the attachment? A. Yes, sir.”</p> <p>The issues on the interplea were submitted to the court who found in favor of the interpleaders and’ rendered judgment accordingly. Plaintiff appealed.</p>

Louis City Circuit Court. — No». J. W. ■ McElhinney, Judge. (1) The plaintiff should have been nonsuited, and defendant’s instructions A and B to that effect should have been given. Also C and 8 and 9. Petty v. Railroad, 179 Mo. 666; Moore v. Railway, 176 Mo. 544; Kelsay v. Railroad, 129 Mo. 372; Vogg v. Railway, 138 Mo. 172; Yancey v. Railway, 93 Mo. 433; Hicks v. Railway, 124 Mo. 128; Day v. Railway, 81 Mo.

Louis City Circuit Court.— Ron. Franklin Ferriss, Judge. (1) It is error to assess, in one special taxbill, a lump sum against more than one lot. And a special tax-bill, in which the entire cost is assessed in a lump sum against two contiguous lots, even if owned by the same owner and under one fence, is void. Such a bill will neither authorize a judgment for the whole amount, nor for a separate amount upon each lot. Hannibal v. Richards, 35 Mo.

<p>Appeal from St. Charles Circuit Court. — Ho#. E. M. Hughes, Judge.</p> <p>Where a person having a choice of two ways, one of which is perfectly safe and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and can not recover. Moore v. Eailway, 146 Mo. 572; Hurst v. Eailway, 163 Mo. 310; Palmer v. Kinloch Co., 91 Mo. App. 106.</p> <p>(1) It is the duty of employers to furnish their servants with reasonably safe tools and appliances with which to do their work, and their failure to do so constitutes actionable negligence. O’Mellia v. Eailroad, 115 Mo. 218; Meholds v. Plate Glass. Co., 126 Mo. 55; Curtis v. McNair, 173 Mo-. 270; Minnier v. Eailway, 167 ■Mo. 99. (2) Plaintiff’s knowledge of the defect or insufficiency of the machine with which he was required to work does not bar his recovery, because the danger was not so glaring and obvious as to threaten immediate injury to him. Mahaney v. Eailroad, 108 Mo. 191; Soeder v. Eailway, 100 Mo. 673; Devore v. Eailway, 86 Mo. App. 429; Booth v. Air Line, 76 Mo. App. 519; Pauck v. Dressed Beef & Prov. Co., 159 Mo. 467; Curtis v. McNair, 173 Mo. 281; Parsons v. Packing Co., 96 Mo. App. 382. If plaintiff might reasonably have supposed that he could, by the exercise of care and caution, work with said sawing machine without injury to himself, then the knowledge of its defective or insufficient condition does not bar his recovery. Huhn v. Eailway, 92 Mo. 440. (3) It was defendant’s duty, through its authorized officers .and agents, to inspect and keep in repair the machine with which plaintiff was required to work. Huth v. Dohle, 76 Mo. App. 676; Gutridge v. Eailway, 105 Mo. 525. The appellate court can not take cogni-zance of a failure by the lower court to instruct on a theory which was not presented by either side. Spurgeon v. West, 23 Mo. App. 42; Davidson v. Biermann, 27 Mo. App. 655; Simonds v. Oliver, 23 Mo. 32; Fearey v. 0 ’Neill, 149 Mo. 467; Hall v. Jennings, 87 Mo. App. 627; Wheeler v. Bowles, 163 Mo. 398. (4) Appellant’s counsel, in point four of their brief, charge plaintiff with shifting from the allegation in his petition as to a splitter. Since the testimony in the case shows the object of a splitter to be to spread the lumber, and shows that the splitter must be thicker than the saw in order to do this, and further shows that a splitter thinner than the saw is no splitter at all, respondent fails to see wherein he has shifted from the allegations in his petition. Black v. Railway, 172 Mo. 176. (5) In answer to point five, in appellant’s brief, respondent says: First. That the witnesses testifying as to the dangerous condition of the machine at which plaintiff was working, having been shown to have had years of experience operating similar machines, were experts, and the weight of their testimony was for the jury. Kaminski v. Iron 'Works, 167 Mo. 462; Fischer v. Pkg. & Prov. Co., 77 Mo. App. 108; Turner v. Haar, 114 Mo. 335; Benjamin v. Railway, 50 Mo. App. 602. (6) In answer to the point made in appellant’s brief that plaintiff chose the dangerous instead of the safer way in sawing, it is sufficient to say that he sawed in the manner he was shown by foreman Herr, who was a vice principal at the time of directing plaintiff. But defendant’s counsel having offered no instruction in the court below on this subject, can not now raise the point for the first time. (7) At the time Ferdinand Herr directed plaintiff how to saw, he, Herr, was a vice principal, because he had been placed by the general foreman, Tietz, as superintendent' or director of plaintiff’s work. Dowling v. Allen, 74 Mo. 13; Clowers v. Railroad, 2Í Mo.. App. 213; Stephens v. Railroad, 96 Mo. 207; Schroeder v. Railroad, 108 Mo. 322; Hutson v. Railway, 50 Mo. App. 300; Cox v. Granite Co., 39 Mo. App. 424; Haworth v. Railway, 94 Mo. App. 215.</p> <p>STATEMENT.</p> <p>Three fingers of plaintiff’s left hand were cnt off and the fourth disabled by a ripsaw in defendant’s factory which he was operating, and this action was brought to recover the damages incident to the injury. Plaintiff obtained a verdict and defendant appealed.</p> <p>The saw which inflicted the injury was a small one revolving on a mandrel under the top of a table, but protruding above the top through a slot. The defend^ ant company manufactured woodenware, principally washboards; and this saw was used to cut the legs of washboards from cottonwood lumber. Dean was employed July 27, 1901, and hurt August 20, less than a month afterwards. He had previously worked in factories and with saws. No one testified concerning the facts of the accident except himself. His account is that while he was sawing a board into washboard legs, holding his left hand on top of the board and pushing with his right, it was suddenly hurled from the saw and struck him in the stomach, causing him to pitch forward and thrust his left hand along the slick surface of the table until it came in contact with the saw.</p> <p>The allegations of the petition with regard to the negligence of the defendant, are as follows:</p> <p>“Plaintiff further states that defendant did place him to work upon a machine or table with a revolving saw then known to the defendant to be, and which-by the exercise of ordinary care might have discovered it to be in a very poor, unsafe-and dangerous condition in this, that said machine, had no feed-roll nor other appliance or apparatus by which the lumber being cut by said saw could be held down upon said table, so as to prevent said lumber from being thrown back by said saw with violence to and against the person operating the same; and had no hood, nor other appliance, to prevent the hand of the person operating the same from coming in contact with and being injured by the said saw; and had no splitter, nor other appliance, at the rear of said saw, to prevent said saw from becoming fastened and clamped in the lumber being sawed thereat and throwing said lumber with great violence to and against the person operating said machine; and that the saw of said machine was broken and out of repair and was defective in this; that one of Hie teeth of said saw was broken off and absent therefrom and that the remaining teeth of said saw were not properly set for the work to be done thereon, in this, that' said remaining teeth were not deflected from the body of the saw; but had been permitted by defendant to become and remain straightened and even with the body_ of the saw, rendering the operation of said machine very unsafe and dangerous; which condition of said saw was known to the defendant, or by the exercise of ordinary care might have been discovered by it.</p> <p>‘ ‘ Plaintiff alleges that some appliance or apparatus such as a hood, which would prevent the hand of the person operating said machine from coming in contact with said saw, or some appliance such as a feed-roll, which would hold down the lumber being sawed upon said machine, and prevent such lumber from being thrown back to the person operating said machine, or some appliance or apparatus such as a splitter at the rear of said saw, which would prevent said saw from being clamped by the lumber being sawed upon said machine, was indispensably necessary to the reasonably safe condition of said machine; that said machine had neither of said' appliances, and that in consequence thereof was a very unsafe and dangerous machine; that defendant at and before the time of plaintiff’s injury hereinafter alleged, knew, or by the exercise of ordinary care might have known, that said machine had neither of the said appliances, and that defendant then and there knew, or by tbe exercise of ordinary care might have known,'that said machine without one of said appliances was a very unsafe and dangerous machine; that defendant also wholly neglecting and disregarding its duty towards plaintiff provided him with moist and damp lumber, and required him to saw the same into strips or pieces of certain sizes at and upon said machine; that said lumber, by reason of its said moist and damp condition, was not adapted to nor fit for the work in which plaintiff was then engaged, and added great danger to the performance of said work in this; that the said moist and damp condition of said lumber caused it to more readily clamp and fasten itself to said saw, thereby causing said saw to throw said lumber back to and against the person operating the machine.”</p> <p>An analysis of those statements discloses that the specific complaints preferred are these: the sawing apparatus was not reasonably safe, because it had neither a feed-roll, hood or spreader, one of which attachments is necessary to make the operation of such machinery ordinarily or reasonably safe; a tooth of the saw was broken and the rest badly set; the boards plaintiff was required to saw were damp, which enhanced the danger. The attachments mentioned in the petition as necessary to the safety of a ripsaw need to be defined; and from the evidence we gather that a hood is a tin or sheet-iron cap, partly covering a saw and preventing the board from flying up while the saw is cutting it and striking the operative. A feed-roll or automatic feeder, is a toothed appliance something like a saw, but working in front of the saw proper and feeding the board to it automatically; it, too, tends to prevent the board from being thrown against the sawyer by the hold its teeth take; at least, there was evidence that way, though there was some to the contrary. A splitter, spreader or divider, the appliance is spoken of by all three designations, is a piece of iron or steel, slightly thicker than, and set about two inches behind the saw it is to be used with, so as to spread the seam in the wood and thereby hinder the clamping of the saw. There was testimony that a spreader increased the safety of snch a machine by preventing the saw from straggling with the wood and hurling it against the sawyer. Witnesses testified as to other devices which are used to hinder the wood from being thrown forward; an occurrence which is quite dangerous to the operative. Several witnesses swore the saw in question was of improper construction and very dangerous, and that one of the devices mentioned was necessary to render it reasonably safe and in conformity with the way such machines are usually equipped. A spreader, or divider was used in connection with the saw; but there was testimony that it had worn thinner than the saw itself and, therefore, did not hold the seam open. There was other testimony that it was in good order and effective.</p> <p>At the plaintiff’s instance, the court, besides other instructions, gave these:</p> <p>“If the jury find from the evidence in this cause that the apparatus used for sawing boards by which plaintiff was injured, from its make and construction, was unsafe, and that it could have been made reasonably safe by the exercise of ordinary care on the part of defendant in the application of some practical device or contrivance to protect the operator from being cut by the saw, and that the defendant knew of such unsafe condition or might have known thereof by the exercise of reasonable care and diligence, they are instructed that the defendant is liable to plaintiff for any injuries he has received in consequence of such defect in the make and construction of such apparatus after it was known or ought to have been known to defendant, even if such defect was known to the plaintiff; provided, that plaintiff at the time of his. injury was exercising ordinary care and prudence, and provided further, that such defect in such apparatus was not so dangerous as to threaten immediate injury to plaintiff from its use or if plaintiff might reasonably have supposed that he could work with said apparatus without injury to himself, by the use of ordinary care and caution.</p> <p>“The'jury are instructed that it was defendant’s duty through its authorized officers or agents, to inspect and keep in repair the sawing apparatus with which plaintiff was required to work at the time of his injury; therefore, if the jury find and believe from the evidence that the saw with which the plaintiff was engaged sawing boards at the time of his injury was out of repair, and that said defective condition of said saw directly caused plaintiff’s injury, and that plaintiff at the time of his injury was exercising ordinary care and prudence in his work, and that defendant knew, or might have known, by the exercise of ordinary diligence, the defective condition of said saw then and in that event the defendant is liable to plaintiff for any injury caused plaintiff by the defective condition of the saw, even if plaintiff at the time of his injury knew of the defective condition of said saw; provided, that such defective condition of said saw did not render the same so dangerous as to threaten immediate injury to plaintiff from its use, or if plaintiff might reasonably have supposed that he could work with said saw in its defective condition without injury to himself by the use of ordinary care and caution.”</p> <p>At the request of the defendant these instructions were given:'</p> <p>“4. Neither of the several allegations of fact, upon which plaintiff bases the charge of negligence against the defendant is material unless the jury find from the evidence that such fact caused or directly aided in producing the injury complained of; and unless you find that the fact charged is material, in the sense above defined, you will disregard it.</p> <p>“5. The employer is not bound to adopt other machinery or later improvements in machinery, and is not liable for any injury which might have been avoided if such other or improved machinery had been used; and he may conduct his business in his own way and is only bound to see that the machinery which he uses is reasonably safe for the purpose for which it is intended to be used.”</p> <p>The court gave these charges of its own motion:</p> <p>“ (A) The petition Charges that a feed-roll, hood or splitter was indispensably necessary to the reasonably safe condition of the machine or table upon which plaintiff claims to have been hurt, and that said machine was unsafe and dangerous because of the alleged absence of said appliances.</p> <p>“If you are satisfied from the evidence that the machine or table in question was provided with a proper splitter, you will disregard the charge to the contrary in the petition.</p> <p>“If you believe and find from the evidence that persons of ordinary prudence in that line of business do not use a feed-roll or hood in ripping boards of the size and kind which plaintiff was engaged in cutting and that the machine was reasonably safe without such feed-roll, then you will disregard the charge that its absence was negligence on the part of the defendant.</p> <p>“If you find and believe that the teeth of the saw in question were such as a person of ordinary prudence would use under like circumstances, and that the machine was reasonably safe with the teeth of the saw in the condition they were when the injury occurred, then you will also disregard the charge of negligence relating to the saw.</p> <p>* ‘ Unless you believe from the evidence that the lumber which plaintiff was engaged in ripping was so moist or damp that a person of ordinary prudence in that line of business would not allow it to be ripped or cut, you will also disregard the charge of negligence based on the condition of the lumber.</p> <p>“B. When the plaintiff entered the employment of the defendant, he assumed all the ordinary risks of the service in which he engaged, and it became his duty to exercise his own skill and judgment to protect himself against them; and if you find from the evidence that he was injured in consequence of .one of these risks or by his own carelessness, then he can not recover.”</p> <p>The court gave another charge of its own motion which will be copied in the opinion. -</p> <p>Instruction “B” above, was requested by the defendánt with the following clause appended, but said clause Avas refused:</p> <p>“Moreover, the plaintiff can not recover if the alleged defects of the machine or table, or the condition of the lumber were obvious to him whilst at work upon the same.”</p>

<p>1.. RECOGNIZANCE: Denial of Execution. Sureties on a forfeited recognizance, by not denying its execution under oath, admitted they signed it and are bound by it,' although- the principal may not have signed it.</p> <p>2. -: Release of Sureties: Continuance. Where a recognizance required the appearance of the defendant from time to time, from term to term and from day to day, during each and every term to which the cause might be continued, a continuance of the cause without his consent did not operate to discharge the sureties on the recognizance.</p> <p>3. -: Wrong Name: Identifying Accused. In a proceeding against the sureties on a forfeited recognizance of one Ballentine, who was prosecuted under the name of Vallentine, the testimony of the officer who arrested him that he gave the latter name, and for that reason the warrant ran in the name of Vallentine, was admissible for the purpose of showing that Ballentine was the one arrested and proceeded against.</p> <p>4. -: Parol: Evidence of Filing: Harmless Error. It was not competent to prove by the parol evidence of the judge that he took the recognizance, but the error was harmless, • where his official indorsement on the paper showed the fact.</p> <p>5. -: Wrong Name: Sureties Not Released. Under section 2533, Revised Statutes of 1899, where accused, at the time of his arrest, misled the officer as to his true name, a proceeding against him by the wrong name, even after his true name was discovered, did not relieve the sureties on his forfeited recognizance.</p>

— Hon. Henry G. Riley, Judge. (1) Both affidavits for a continuance are fatally defective in that they do not state as the statute imperatively requires, -that defendant was “unable to prove such facts by any other witness whose testimony can be as readily procured.” R. S. 1899, sec. 2600; State v. Heinze, 45 Mo. App. 408; State v. Lett, '85 Mo. 54.

Circuit Court. — Hon. W. D. Hubbard, Special Judge. On the showing of plaintiff, the defendant is not liable under the statute of frauds. To constitute an original obligation on part of one, when the goods are delivered to another, it must be shown that credit was given solely upon the responsibility of the person making the promise. Rottman v. Fix, 25 Mo. App. 573; Price v. Chicago, 40 Mo. App. 194; Osborn v. Emery, '51 Mo. App. 413; Gill v. Reed, 55 Mo.

<p>Appeal from Stoddard Cicuit Court. — No». James L. Fort, Judge.</p> <p>(1) When respondent removed the property from the house in Dexter to the farmhouse outside of Dexter, the insurance thereon ceased and determined under the law, the location of the property insured being of the essence of the contract. The court should therefore have given appellant’s instructions numbered 1, 2 and 3, and rendered judgment in its favor. Griboney v. Ins. Co., 48 Mo. App. 184; Harris v. Ins. Co., 53 Iowa 236; Wood on Insurance, 113, 114 and 115. (2) Under the terms of the policy, upon the removal of the property to a different location, the insurance ceased and determined, the property being insured only while located and contained as described in the policy, and not elsewhere, and all the while and only while contained in the house in Dexter, Missouri. Hoover v. Ins. Co., 93 Mo. App. 118; Tesson v. Ins. Co., 40 Mo. 33; Ins. Co. v. Cass County, 151 U. S. 452; Renshaw v. Ins. Co., 103 Mo. 595; Brewing Co. v. Ins. Co., 63 Mo. App. 663.</p> <p>(1) As to appellant’s first point in its assignment of errors respondent contends that the waiver of forfeiture relied upon by her is specifically pleaded in her petition and denied in appellant’s answer. The question of waiver, when properly raised, is a question of fact to be determined by the trier of fact just as other questions of fact are determined. Lead & Zinc Co. v. Ins. Co., 27 Mo. App. 446; Giboney v. Ins. Co., 48 Mo. App. 185; James v. Ins. Co., 148 Mo. 1. (2) Mr. Mohrstadf wrote the policy sued on, received five years’ premium and in behalf of his principal and with its express sanction as shown by its answer, waived all objection to the assignment of the policy to the respondent. This makes him the general agent of appellant. Nickels v. Ins. Co., 144 Mo.; Laundry Co. v. Ins. Co., 151 Mo. 90. And as such general agent he was authorized to waive conditions of forfeiture in policies issued by him for appellant is the well-established rule in this State. (3) This waiver may become binding upon the insurer in the following ways: (a) By accepting and retaining premium with knowledge on the part of the general agent of the insurer that, under the letter of the policy, the insurance company would not be liable on the policy should a fire occur. O’Brien v. ins. Co., 95 Mo. App. 301; Scott v. Ins. Co., 69 Mo. App. 337. (b) By failure to notify insured when policy becomes subject to a forfeiture, especially if the knowledge of the facts that would avoid it is in the possession of the company or its general agent and not in the possession of the insured to the end that the insured may have an opportunity to' protect his property from loss through the avoidance of an insurance policy which the acts of the insurance company had induced him to believe was valid. Trust Co. v. Ins. Co., 79 Mb. App. 362; Hamilton v. Ins. Co., 94 Mo. 368; Parsons v. Ins. Co., 132 Mo. 583. (c) By retaining the unearned premium upon a policy that, to the knowledge of the insurer or its general agent, has been, under the strict letter of the same, avoided by the unwitting conduct of the insured, (d) And finally, a forfeiture can be waived by the words of a general agent of an insurance company when acted upon by the insurer to his hurt. McCollum v, lug, Co., 67 Mo. App. 80.</p>

<p>Appeal from Greene Circuit Court. — How. Jas. T. Neville, Judge.</p>

— Ho». Frank R. Bearing, Judge. (1) When a party takes the stand as a witness in his own behalf he may be cross-examined as to his antecedents and character as affecting his credibility. Georgia v. Bond, 72 N. W. 232; State v. Greenbury, 53 Pac. 61; Muller .v. St. Louis Hosp. Assn., 5 Mo. App. 390; Same v. Same, 73 Mo. 242.

— Ho». B. Anthony, Judge. (1) The court erred in admitting the written memoranda issued by Gabriel and possibly intended as transfers of the timber in controversy. R. S. 1899, sec. 3418; Potter v. Everett, 40 Mo. App. 153. (2) The court erred in refusing each of the instructions asked by appellant. Ins. Co. v. Tillery, 152 Mo. 421; Kelly v. Vandiver, 75 Mo. App. 435.

<p>Appeal from Mississippi Circuit Court. — No». N. G. Riley, Judge.</p> <p>J. W. Bowser, the president and agent of the company, being dead at the time of the trial, Mr. Crosno, the plaintiff, could not testify as to admissions or conversations of Mr. Bowser. His testimony was wholly incompetent and prejudicial and instruction No. 8 was improperly given. Nichols v. Jones, 32 Mo. App. 657; Williams v. Edwards, 94 Mo. 447; Yendover v. Baker, 121 Mo. 273.</p>

<p>Appeal from Christian Circuit Court. — Hon. Asbery Burkhead, Judge.</p> <p>(1) The city of Billings as a city of the fourth class has the charter power to levy and collect a license tax on butchers or dealers in fresh meat. R. S. 1899, sec, 5978; Davisov. Macon, 37 Am. 60. (2) This prosecution is but a civil action, and the sufficiency of the complaint must be determined by the same rules that govern other civil actions. The ordinance for the violation of which the proceeding was commenced was not before the trial court, but it must be presumed the complaint substantially follows- the language of the ordinance. That is all that is required. ' Trenton v. Devorss, 70 Mo. App. 8- St. Louis v. Weitzell, 130 Mo. 600. (3) Proceedings in the nature of civil actions for the recovery of fines for violations of municipal ordinances need not be commenced by information' or indictment. Marshall v. Standard, 24 Mo. App. 192; Ex parte Kiburg, 10 Mo. App! 442; Ex parte Hallowell, 74' Mo. 395. (4) It is not necessary that the complaint should allege that the sale was willfully or unlawfully made. Savannah v. Dickey, 33 Mo. App. 522.</p>

— Hoot. H. G. Pepper, Judge. (1) Respondents’ fraudulent claims and false swearing are sufficient to defeat the- action.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. (1) This complaint, not having been sworn to, is fatally defective, and conferred no jurisdiction on the circuit court to try the case. Reilly v. Powell, 34 Mo. App. 431; Tegler v. Mitchell, 46 Mo. App. 349.

<p>Appeal from St. Louis' City Circuit Court. — How. Robert M. Posterf Judge.</p> <p>(1) The terms of the contract sought to he enforced must be clear, certain and positive, and free from all doubt and ambiguity. A greater degree of certainty is required in a contract sought to be specifically enforced in equity than is necessary in a contract which is to be the basis of an action at law for damages. Paris v. Halley, 61 Mo. 453; Mastin v. Halley, 61 Mo. 196; Belch v. Miller, 32 Mo. App. 387: Taylor v. Williams, 45 Mo. 70; Underwood v. Underwood, 48 Mo. 527. (2) The next requirement of a court of equity is that the party seeking the specific enforcement of a contract must show that he lias performed all things necessary to be done and performed by him. It is not sufficient that he has performed a part of it. Rosenberger v. Jones, 118 Mo. 559; El. S. S. Co. v. Gill & Co., 125 Mo. 140. (3) When a court of equity is called upon to specifically enforce the performance of a contract, the proof of which rests wholly or in part upon parol evidence, that evidence must be of so clear and forcible a nature as to leave no room for reasonable doubt in the mind of the chancellor. Nothing should be left to conjecture, and but little to probabilities. Stevenson v. Adams, 50 Mo. 475-; Sitton v. Shipp, 65 Mo. 297; Railroad v. McCarty, 97 Mo. 214; Veth v. Gierth, 92 Mo. 97; Tedford v. Trimble, 87 Mo. 226; Strange v. Crowley, 91 Mo. 287; Taylor v.'Von Schroeder, 107 Mo. 206; Tapham v. Dreisvogt, 36 Mo. App. 275.</p>

<p>Appeal from Oregon Circuit Court. — Ho#. W. N. Evans, Judge.</p>

Louis City Circuit Court. — How. Franklin Ferriss, Judge. (1) The court erred in giving the defendants’ first instruction, as modified by the court, because said instruction permits the jury to consider an alleged oral agreement made at the time or prior to the execution and delivery of said note, which agreement had the effect of changing and varying the terms of a written promissory note. Instructions áre erroneous if founded upon incompetent evidence improperly admitted.

Louis City Circuit Court. — Ho». R. M. Foster, Judge. The acceptance of the property and money by Sachleben in accordance with the final judgment of the probate court, and his receipting therefor amounted to a complete satisfaction of that judgment, and Sachlebén could not thereafter appeal therefrom. Robards v. Lamb, 89 Mo. 303; Robards v. Lamb, 76 Mo. 192; Chase v. Williams, 74 Mo. 429; Brinlcerhaif v. Elliott, 43 Mo. App. 185; Waddingham v. Waddingham, 27 Mo.

— Hon. L. B. ■ Woodside, Judge. This action belongs tó a class ’sometimes denominated by law text-writers as “Slander of Title of Real Estate;” and in actions of -this kind the legal right of plaintiff to recover involves his ability to- demonstrate three propositions: First: The words spoken must be false. ' Second. The words must be maliciously published. Third. They must result in pecuniary loss or injury to the plaintiff. Butts v. Long, 94 Mo. App. 691. STATEMENT.

— Hon. James L. Fort, Judge. (1) Where it is sought to recover treble damages for trespass to land, in the tailing and removal of articles therefrom, it should be alleged in the petition that the defendant had no interest or right in the articles taken or removed, or that the same were taken from lands not his own. One or the other of these allegations is imperative. Hewitt v. Harvey, 46 Mo. 368.

<p>Appeal from St. Louis City Circuit Court. — Ho». H. D. Wood, Judge.</p> <p>(1) The plaintiff should have been nonsuited. Moore v. Railway, 75 S.W. 676; Culberson v. Railway, 340 Mo. 64; Cogan v. Railway, 73 S. W. 741; Guyer v. Railway, 174 Mo. 351; Barrie v. Transit Co.,76 S. W. 708; Ries v. Transit Co., 179 Mo. 1; Davies v. Railway, 159 Mo. 9; Hanselman v. Railway, 88 Mo. App. 129; Boyd v. Railway, 105 Mo. 381; Watson v. Railway, 133 Mo. 251; Grocery Co. v. Railway, 89 Mo. App. 540; Rider v. Railway, 171 N. Y. 156. (2) Instruction No.. 1 was misleading, prejudicial and reversible error. Harlan v. Railway, 65 Mo. 24; Sanitary Co. v. Transit Co., 98 Mo. App. 27; Martin v. Transit Co., 75 S. W. 613; Yarnall v. Railway, 75 Mo. 583. (3) It was reversible error to refuse instruction No. 13 asked by defendant. Campbell v. Railway, 75 S. W. 93; Guiney v. Railway, 167 Mo. 603. (4) Instruction No. 6, as to the credibility of witnesses was prejudicial, and should not have been given. Brazis v. Transit Co., 76 S. W. 710; Bunk v. Armstrong, 62 Mo. 74; Wheeler v. Sollaee, 53 Mich. 357; Rothschild v. Ins. Co., 12 Mo. 361; Scott v. Allenbaugh, 50 Mo. App. 135. (5) Instruction No. 3 as to the measure of damages was reversible error. Plummer v. Milan, 70 Mo. App. 602; Bradley v. Railway, 138 Mo.. 311; Bigelow v. Railway, 48 Mo. App. 374; Van Natta v. Railway, 133 Mo. 21; Hull v. St. Louis, 135 Mo. 618; Watson on Damages S. 314.</p> <p>(1) It was not error to refuse appellant’s instruction for nonsuit offered at the close of plaintiff’s case and also after all the evidence was in. Linder v. St. Louis Transit Co., 77 S. W. 997. (2) Complaint is also made that it was reversible error to refuse instruction No. 13 asked by defendant, relating to the giving of signals, to-wit: “Whether the motorman gave signals or not it was the duty of plaintiff , to look and listen before driving onto the track; and if you find from the evi-' deuce that plaintiff failed to exercise ordinary care and failed to look and listen and thereby directly caused or contributed to the wagon and car coming in contact . . . then your verdict must be for the defendant.” This instruction was properly refused.- In another instruction the jury was told that plaintiff, to recover, must have used ordinary care at the time; and there was no call to instruct the jury as to the duty of plaintiff to “look and listen.”- ,</p> <p>STATEMENT.</p> <p>On December ninth, 1902, plaintiff, then in the United States government postal service, drove south from Morgan street along the west side of Seventh street, intending to gather up the mail deposited in box at northeast corner of Lucas avenue and Seventh street. The vehicle was a single-horse covered wagon, ordinarily used in St. Louis for such purpose, with a step in the rear upon which was standing the driver’s assistant, who collected the mail from the letter boxes, and who jumped and escaped injury in the occurrence described. The testimony presented more than even the usual conflict, but the time was the forenoon either about eight or nine o’clock and, according to plaintiff’s account, which received confirmation and corroboration in many important details from a bystander, a retail merchant, and his fellow mail collector. The street cars operating on the single street car track on Seventh street, in temporary use by defendant, but belonging to the Transit system, and then employed by cars of both, were blocked and stationary. The car of defendant later participating in the collision with the mail wagon was motionless on south side of Lucas avenue, with a clear space of fifteen feet dividing it from the next car north, whereupon plaintiff sought to guide his vehicle at a brisk trot across in such space between the two arrested cars and as he was thus proceeding, a wagon moving westwardly on Lucas avenue turning northward bn east side of Seventh street, momentarily delayed him in getting safely across in front of the car which, motionless up to that time, was started and struck about the center of the wagon and threw plaintiff against the side fracturing two of his ribs. Plaintiff’s testimony further tended to show that the colliding car was still when he started across, and the motorman was inattentive to his duties, not looking airead but with his head averted was looking around, or in conversation when he caused the car to move onward. As intimated, the version of the affair presented by the witnesses for defendant, a solitary passenger in the car and its two employees in charge, differed radically from the description by plaintiff and the witnesses on his behalf, and tended to establish gross negligence' and reckless exposure to injury by plaintiff in driving directly in front of an approaching and moving car.</p>

— Hon. H. C. Riley, Judge. The court erred in refusing to instruct the jury; to find for the defendant. There was not enough evidence to support the verdict and- it was the plain duty of the trial judge to have given the instructions. Hite v. Railroad, 130 Mo. 141; Riechenback v. Ellerbe, 115 Mo. 588; Jackson v. Harden, 83 Mo. 186. The information in this case is sufficient. R. S. 1899, sec. 2175. This information is good at common law.

— Hon. E. W. Jolvnson, Judge. (1) Under the pleading and all of the testimony, plaintiff was not entitled to recover and the court should have instructed a verdict for the defendant. Schepers v. Railway, 126 Mo. 665; Meriwether v. Railroad, 45 Mo. App. 534; Zumwalt v. Railroad, 175 Mo. 288; Bardwell v, Railroad, 63 Miss. 574, 56 Am. St. 842; Soloman v. Railway, 103 N. Y. 437, 56 Am.

— Hon. H. C. Riley, Judge. (1) The statute relied upon is penal and the burden lay upon the plaintiff to bring himself clearly within the statute, both as to his cause of action and the amount of damages for which he claimed a penalty. Nanz v. Railroad, 87 Mo. 280; Pusz v. Spaunhorst, 67 Mo. 256.

Louis City Circuit Court. — Ho». D. G. Taylor, Judge. ' (1) The defendant’s instruction, offered at the close of all the evidence, asking the- court to instruct that plaintiff was not entitled to recover, should have been given. The undisputed testimony shows: First. That the place at which plaintiff attempted to alight was not a regular stopping place for discharging passengers. Second.

— Ho». Frank B. Blearing, Judge. . . (1) The trial court erred in not setting aside the verdict on the grounds set out in the motion for new trial. Spiro v. Transit Go., 76 S. W. 684; Kennedy v. Transit Co., 103 Mo. 1; Nugent v. Milling Co., 131 Mo. 241.

Louis City Circuit Court. — fio». D. Q. Taylor, Judge. (1) The allowance of a demand in the probate court against an estate has all the qualities of a judgment of a court of record, and can not be set aside after the term at which it is granted, except for fraud practiced by the claimant on the court, by reason of which the allowance was secured; and there was no evidence, or even a claim, that any such fraud existed in this case when before the probate court.

Louis City Circuit Court.— Hon. Robt. M. Foster, Judge. There was no duty imposed upon defendant of inspecting and examining its grounds and finding out small depressions, probably gopher holes, which were overgrown with grass and entirely obscured from view. And in the absence of such duty, no liability could be ascribed to defendant.

— Hon. H. C. Pepper, Judge. (1) The court erred in admitting in evidence the check of M. & B. Mining to Ed Hill for $372.94, and the guaranty thereof of plaintiff and Fuller indorsed thereon. (2) The relation between the defendant bank and plaintiff was that of debtor and creditor, with the added condition that plaintiff had the right to draw out sums at his liking. State v. Reid, 125 Mo. 51; Quattrochi Bros. v. Bank, 89 Mo. App. 508; McKeen v. Bank, 74 Mo.

— Hoto. H. W. Johnson, Judge. (1) The burden of proof was upon the plaintiff in this action to establish the negligence of the defendant. Where, as.in this ease, a mere delay is shown without establishing the negligence of the defendant, the plaintiff should have been nonsuited. Witting v. Railroad, 101 Mo. 640; Cash v. Railroad, 81 Mo-. App. 109; Plefka v. Knapp, 145 Mo. 316; 3 Joyce on Damages, sec. 1282.

— Hon. II. C. Riley, Judge. (1) The statute relied upon, is penal and the burden lay upon the plaintiff to bring himself clearly within the statute, both as to his cause of action, and the amount of damages for which he claimed a penalty. Nanz v. Railroad, 87 Mo. 280; Fusz v. Spaunhorst, 67 Mo. 256; Kreitzer v. Woodson, 19 Mo. 327; Howell v. Stuart, 54 Mo. 400.

<p>Appeal from St. Louis City Circuit Court. — Ho». J. A. Blevins, Judge.</p> <p>(1) The only instruction given by the court at the instance of plaintiff is palpably misleading and erroneous. In effect the jury were advised by said instruction that they were not bound by the testimony of expert witnesses. Nor were they bound by the testimony of non-experts. That the jury were at liberty to ignore the testimony of all the witnesses and estimate values and damages in accordance with their own .knowledge and judgment. Hoyberg v. Hensecke, 153 Mo. 63. (2) There is no evidence that Rogers and his wife who sold to plaintiffs had any title to the tract of land conveyed, and the evidence fails to show title in plaintiffs. Turner v. Williams, 76 Mo. 617. (3) The second amended petition, upon which the case was tried, alleged that the so-called Vine and South streets had been granted and dedicated for the private use of plaintiffs. There is no evidence in the record of the dedication. “In the first place,' there is, properly speaking, no such thing as a dedication to a private use.” Coberly v. Butler, 63 Mo. App. 559. 9 Am. and Eng. Ency. of Law (2 Ed.), p. 23; Vossén v. Dautel, 116 Mo. 386; Coberly v. Butler, 63 Mo. App. 559.</p> <p>(1) The plat (and its accompanying grant), introduced in evidence, and plaintiffs having proven their title, are entitled to recover for the damages sustained by the cutting down of Vine street, for many years prior thereto used by them as a private way. First Presbyterian Church v. Kellar, 39 Mo. App. 441; Cunningham v. Fitzgerald, 138 N. Y. 165; Coudert v. Sayre, 46 N. J. Eq. 386; Fitzgerald v. Barbour, 55 Fed. 440; Jones on Easements 201. (2) Having purchased their lot as a part and parcel of lands thus platted, a right-of-way passed as an easement appurtenant thereto. This right is acquired by an implied covenant as appurtenant to the premises granted. The courts have gone so far as to construe this right in favor of the grantee as against a grantor who has retained title to adjoining lands. Such cases are much stronger from a defendant’s standpoint than the ease at bar, where the defendant appears in the role of a trespasser. Vossen v. Dautel, 116 Mo. 379; Lennig v. Ocean City Association, 41 N. J. Eq. 606; Love v. Stiles, 25 N. J. Eq. 381; Chapin v. Brown, 15 R. I. 579; Palmer v. Palmer, 150 N. Y. 139; Bond v.Willis, 84 Va. 796; Pingree v. McDuffy, 53 N. H. 306; Kingsley v. Goldsborough Co., 86 Me. 279; Pinnington v. G-alland, 10 E. R. C. 35; Howton v. Frearson, 8 T. R. 50. (3) Disregarding all questions of an easement in Vine street, the Constitution of 1875 gives to plaintiffs the right of compensation for the damages they have -sustained. The lot has been damaged within the meaning of the Constitution. Const., art. 2, see. 21; Werth v. Springfield, 78 Mo. 107; Householder v. Kansas City, 83 Mo. 488; Davis v. Railway, 119 Mo. 180; Railroad v. Gordon, 157 Mo. 71. (4) In the Constitution of 1875, however, easements essential to the enjoyment of property can no more be taken away or destroyed without compensation than the corpus of the property. Van De Vere v. Kansas City, 107 Mo. 83; Gaus Mfg. Co. v. Railroad, 113 Mo. 308; Thomas v. Hunt, 134 Mo. 392. (5) Instruction No. 1, given by the court, is identical with the instruction approved in Kansas City v. Butter-field, 89 Mo. 646, and followed in an unbroken line by subsequent decisions of the appellate courts of the State. Kansas City v. Butterfield, 89 Mo. 646; St. Louis v. Ranken, 95 Mo. 189; State v. Whitten, 100 Mo. 525; Hull v. St. Louis, 138 Mo. 618; Fullerton v. Fórdyce, 144 Mo. 519; Hoyberg v. Henske, 153 Mo. 63; Brownrigg v. Massengale, 97 Mo. App. 190. '</p>

<p>1. MARRIAGE: Duress. Where a man, arrested under the provisions of section 1844, Revised Statutes of 1899, marries the woman concerned in order to escape the penalty of that section, his action is voluntary in a legal sense and he can not after-wards, in an equitable proceeding, have the marriage annulled on the ground that he was coerced.</p> <p>2. PRACTICE: Suit Money: Circuit Court Must Allow. An allowance of suit money to cover the expenses of an appeal must he made by the circuit court, and the appellate court can not interfere.</p>

— Hon. E. B. McKee, Judge. Plaintiff’s petition certainly states a canse of action against defendant.

— Ho». E. M. Hughes, Judge. (1) The seventh clause of the contract of shipment is valid, and liquidates the damages in this action, in any event. Harvey v. Railroad, 74 Mo. 546; McFadden v. Railroad, 92 Mo. 343; McFadden v. Railroad, 136 Mo. 177; Hart v. Railroad, 112 U. S. 331; Wyriek v. Railroad, 74 Mo. App. 406; Yaughn v. Railroad, 78 Mo. App. 639; Live Stock Com. Co. v. Railroad, 87 Mo. App. 330.

<p>1. INSURANCE: Pleading: Sufficiency of Petition. A petition, in an action on a policy of fire insurance in a town mutual insurance company, which alleged that the fire occurred five months before the date of filing the petition, was not defective under section 8055, Revised Statutes of 1899, because.it failed to state that the defendant withheld payment for two months after payment was due.</p> <p>2. -: -: -. Nor is such petition defective by reason of failing to state that the goods insured were on the first floor of the store building when the loss occurred, where the policy pleaded required them to be, since it was alleged that the building was only one story high.</p>

— Ho». H. C. Pepper, Judge. (1) It is well-settled law of this State that a debtor’s claim of exemption should be made when the property is seized. Exemption is a personal privilege and can only be exercised when the officer calls with the writ or-makes a levy. Garrett v. Wagner, 125 Mo. 462; Weinrich v. Koelling, 21 Mo. App. 133; Lnick v. Trail, 84 Mo. App. 67; Drake on Attachment, sec. 2440'; Nieman v. Koch, 47 Mo. App. 272.

Louis City Circuit Court. — How. J. R. Kinealy, Judge. (1) One who places his name upon the hack of a promissory note, not being the payee therein, before, its delivery to the payee, becomes thereby a comaker, unless prior to the signing and delivery of the paper, there was an express agreement between him and the payee that his obligation should be that of an indorser, or- something other than that of maker.

St. Louis City Circuit Court. — Hon. S. P. Spencer, Judge. (1) It is not negligent, much less is it conclusive evidence of negligence, to walk or even grope about in a dark place when there is no cause to anticipate danger or risk. Sbeyer v. Lowell, 134 Cal. 359; Warner v. Mier, Etc., Co., 58 N. E. 554; Rhodius v. Johnson,' 56 N. E. 942; Wendler v. Furnishing Co., 56 Mo. 537.

<p>1. MUTUAL BENEFIT SOCIETIES: Death of Beneficiary. Where the beneficiary named in a benefit certificate, issued by a mutual benefit society, dies before the insured, no other beneficiary being named, the proceeds of the certificate should be paid as the rules of the order direct, in case no beneficiary is designated.</p> <p>2. -: Witness: Heirs of Deceased Beneficiary. Where the heirs of a deceased beneficiary, wife of the insured, in a mutual benefit order, claimed the proceeds of the certificate under an alleged agreement between the insured and the beneficiary that the latter should receive the benefit money in payment of a loan made by her to him, such heirs were not competent witnesses to prove the contract, in an action between the order and the administrator of the deceased to determine the disposition of the fund. They were interested in the result of the suit derivatively, through the administrator, because, the estate of the deceased beneficiary having been settled, leaving no debts, the administrator, if he prevailed, would take the fund as naked trustee for the heirs.</p> <p>3. -: Agreement to Pledge Certificate: Proof. Evidence that the insured wanted to borrow money from his wife and told her if she would lend it, he would take out the insurance for her benefit, and they then agreed that the certificate should be taken out in her name so that she would be reimbursed if he died first without having repaid her, was insufficient to establish an agreement that it should be mortgaged or pledged to her.</p>

— Wo». J. D. . Perkins, Judge. (1) The defendants received, retained and used the cases, and are therefore liable for the reasonable value of them. Brown v. Weldon, 27 Mo. App. 251; Brown v. Weldon, 99 Mo. 564; Moore v. Mfg. Co., 113 Mo. 98; Light & Heat Co. v. Bond, 47 Mo. App. 439; Keith v. Ridge, 146 Mo. 90; West v. Freeman, 76 Mo. App. 96; Halpin v. School Dist., 54 Mo. App. 371.

— Hon. J. D. Per Jems, Judge. (1) This being a suit under sections 2864 and 2865, Revised Statutes 1899, it was incumbent upon plaintiffs to both allege and prove that deceased left no child surviving. Barker v. Railway, 91 Mo. 86; McIntosh v. Railway, 103 Mo. 133; Sparks v. Railway, 31 Mo. App. 114; Dulaney v. Railway, 21 Mo. App. 597; Parsons v. Railway, 94 Mo. 294.

— Rom. E. P. Gates, Judge. (1) The track in controversy had not been abandoned by the Missouri Pacific Railway Company. The rule is that “the mere non-user of this piece of road, in the absence of adverse possession by the servient owner, or other acts of such unequivocal nature on the part of the owners of the railroad, as to evince a clear intention to abandon the easement, would not work an ex-tinguishment of the right-of-way.

— How. James Gibson, Judge. (1) The court erred in refusing garnishee’s first instruction, because if defendant Jarboe was the head of a family, as predicated in said instruction, his wages were exempt from garnishment, even against his wife’s execution for alimony. . Maag v. Williams, 92 Mo. App. 674, overruling Kaufman v. Wilkinson, 46 Mo. App. 646, and following Bifle v. Pullman, 114 Mo. 50.

— Hon. James E. Hasell, Judge. (1) On the face of the pleadings filed in this case it appeared, first, that the second amended petition filed by plaintiff and on which defendants Murphy were forced to trial, was a clear substitution of a new and different cause of action from the one declared on in his original petition. McCarty v. 0 ’Bryan, 187 Mo. 589; Green v. Lodge, 79 Mo. App. 184; Prewitt v. Warren, 71 Mo.

— Ho». James Gibson■, Judge. The court erred in sustaining plaintiff’s motion for new trial. Defendant’s third.instruction was properly given. Browne v. Ins. Co., 68 Mo. 137; Pink v. Ins. Co., 60 Mo. App. 673; Wood v. Ins. Co., 126 Mass. 316; Ins. Co. v. Yaughan, 14 S. E. 754; Weide v. Ins. Co., 1 Dillon (Ya.) 441; Doloff v. Ins. Co., 82 Maine 266; Claflin v. Ins. Co., 110 U. S. 81; Linscott v. Ins. Co., 88 Maine 497; Sleeper v. Ins.

— Ho». W. K. James, Judge. (1) The demurrer to the evidence should have been given. If the complaining servant reports the defect and receives a promise to repair and relies on it, his assumption of the risk is suspended pending this reasonably requisite time. In order that the rule just stated shall -apply it is necessary that the promise made by the master should have been the cause which induced the servant to continue in the employment.

— How. Henry Ramey, Judge. (1) The contract of shipment in the case at bar having been made in the State of New York, the Missouri statute, R. S. 1899, sec. 5222, rendering the initial carrier liable, can not be invoked as a rule by which to construe and determine its provisions. Eckles v. Railway, 72 Mo. App. 305; Otis Co. v. Railway, 112 Mo. 628; Crouch v. Railway, 42 Mo. App. 250.

— Hon. A. M. Woodson, Judge. (1) In an action at law, the findings of the court stand upon the same footing as the verdict of a jury; State ex rel. Friedman v. Purcell, 131 Mo. 312; Magee v. Burch, 108 Mo. 336. Either will he reversed on appeal, if not supported hy substantial evidence. Hewitt v. Steele, 136 Mo. 334; Freeman v. Hemanway, 75 Mo„ App. 629; Long v. Moon, 107 Mo. 338; Flynn v. Wacker, 151 Mo. 552; Peffer v. Eailway, 98 Mo. App. 291.

<p>1. TRIAL PRACTICE: Petition: Demurrer: Aider by Judgment^ A demurrer to a petition for damaging plaintiff’s, property by flooding bis storeroom from tbe upper stories, is beld properly overruled since tbe petition set out in tbe opinion was sufficient to sustain a judgment.</p> <p>2. -: Instructions: Assuming Facts. Instructions beld not to assume tbe facts, but if so, it is immaterial as tbe facts were practically uncontradictory.</p> <p>3. LANDOWNER AND TENANT: Negligence: Liability of Landowner. TUe landowner is not liable for tbe negligence of bis tenant.</p>

— Hon. William H. Crawford, Special Judge. (1) The court erred in the admission of illegal, irrelevant and incompetent evidence in permitting defendant under the pleadings in this case to introduce and keep in evidence part of a written contract between plaintiff and defendant, and in permitting defendant to cross-examine plaintiff concerning said written contract. Electrical Co. v. Lewis, 86 Mo. App. 612; Northup v. Ins. Co., 47 Mo. 435; Mfg. Co. v. Hunter, 87 Mo.

— Ho». A. F. Evans, Judge. (1) The trial court erred in giving plaintiff’s instruction No. 2. Said instruction assumed that the sidewalk was defective, when it should have left that question, the most important one of the case, for the jury to answer, from the evidence. (2) The court erred in giving plaintiff’s instruction No. 3. .

— Mon. W. B. Teasdale, Judge. (1) It is well-settled law tbat where a contract is obscurely expressed, or so uncertain in its terms as to leave its meaning to conjecture, it may be explained by parol evidence. Newberry v. Durand, 87 Mo. 290. (2) The court erred in refusing to' sustain the demurrer to the evidence on the first count of plaintiff’s petition. Wright & Son v. Ins. Co., 74 Mo. App. 364; Jewelry Co. v. Bertig, 81 Mo. App. 393; Brewer v. Schwartz, 94 Mo. App. 392.

— Ho». W. B. Teasdctle, Judge. (1) The plaintiff had express authority to act as the agent of defendant from the twenty-first of October, 1901, until the twenty-first of February, 1902. Alger v. Keith, 105 Fed. (6 C. C. A.) 105; Rees v. Pellow, 97 Fed.

— Ro». R. G. Timmonds, Judge. (1) The insurance company and the insured must proceed in good faith with an agreement for arbitration and it is for the jury to decide the question and not the court. Uhrig v. Ins. Co., 101 N. T. 361. (2) The mere fact that an attempted arbitration has not been completed is’no bar to an action on the policy. McCullough v. Ins. Co., 113 Mo. 606; Brock v. Ins. Co., 26 L. R. A. 623; Ins. Co. v. Bishop, 154 111. 9.

— Hon. M. T. January, Special Judge. (1) The defendant in his amended answer sets up as a defense to this action a rescission of the contract sued upon of his own accord by reason of the fact that the plaintiff failed and refused to perform material parts of its contract. Under this state of facts the defendant had a right to rescind, by notifying the plaintiff of his intention so to do, and by placing the plaintiff in statu quo.

— ¿lo». ¿¿. C. Timmonds, Judge. (1) All the letters introduced by plaintiff, and relied upon by Mm, to establish a contract between him and defendant to sell defendant’s land, were not signed, authorized or dictated by defendant, but were all signed “George Pope, by R. H.. Meade.” There is nothing in the evidence to show who R. H. Meade is; no agency is shown to exist between defendant and R. H. Meade, and the acts and admissions of Meade are in no way binding on defendant.

— Eon. George F. Longan, Judge. (1) The court below erred in refusing to give defendant’s ninth instruction asked. The evidence leaves little room to doubt but that the relation of master and servant did not exist between plaintiff and her son at the time the injury occurred. In fact the son’s evidence shows clearly that such relation did not exist. And yet the court by refusing the defendant’s ninth instruction, refused to submit this question to the jury. This was error.

— Eon. James Gibson, Judge. (1) The court erred in its instruction given at the instance of the defendant. * ‘ There may he an actionable assault and battery without .any actual or specific intent to commit that offense.” Mercer v. Corbin, 117 Ind. 450; Ricker v. Freeman, 50 N. H. 420, 9 Am. Rep. 267; Welch v. Durand, 36 Conn. 182; Frank v. Avery, 21 Wis. 173; Peterson v. Hoffman, 59 Ind. 130; O’Brien v. Loomis, 43 Mo. App. 35; Grain Co. v. Brubacker & Co., 8.9 Mo.

— Hon. Hugh Babbs, Judge. (1) Under the allegations of the petition the release obtained of appellant was not void, but voidable. 14 Am. and Eng. Ency. Law (2 Ed.), p. 156. (2) The fraud in obtaining the release is sufficiently pleaded. Martin v. Lutkewitte, 50 Mo. 58; Link. v. Link, 48 Mo. App. 345; Reed v. Bott, 100 Mo. 62. (3) Every element of a cause of action for deceit is set forth in the petition. 14 Am. and Eng. Ency of Law (2 Ed.), p. 23.

— Hon. James E. Haeell, Judge. (1) The memorandum in reference to “settling up land” September 1, was an option given Cockrell, a unilateral contract. The enforcement of such a contract by a court of equity is not even a matter of absolute right. The parties do not stand on an equal footing. Time must be deemed the essence of the contract. Hollmann v. Conlon, 143 Mo'. 379; Dunaway v. Day, 163 Mo. 415; Mason v. Payne, 47 Mo. 517.

— Now, Samuel Davis, Judge. (1) It is provided by statute that cities of the fourth class shall have power to fix the compensation of all its officers. R. S. 1899, sec. 5918. (2) It is also provided by statute that if any person be convicted before the police judge of a city of the fourth class, judgment shall be rendered accordingly and for costs and that it shall be part of such judgment that defendant stand committed until judgment is complied with. R. S. 1899, sec. 5933.

— Ho». J. B. Perkins, Judge. (1) Sec. 3423, R. S. 1899; Kemer v. Wilkerson, 70 S. W. 509. (2) A finding in a replevin suit brought by an infant while yet a minor to recover possession of chattels taken from her by virtue of a chattel mortgage given by her to secure the payment of money borrowed for a business enterprise, that she can not disaffirm the contract made by the mortgage without first restoring the consideration is erroneous. Corly v. Burton, 32 Mich. 30.

— Ho». Hugh Dabbs, Judge. (1) The written contract of guaranty sued on by the plaintiffs is personal to E. J. Winslow. It does not run to his heirs' or assigns. The condition is that if Winslow should sink a shaft on the drill hole and the same was not found as good as represented the defendant would pay Winslow all expense of sinking the shaft.

— Ho». Jas. E. Ha-sell, Judge. The verdict of a jury or the finding of a court, must have substantial evidence to support it, or it will be set aside. Alexander v. Railway, 37 Mo>. App. 609; Wight v. Railway, 20 Mo. App. 481; Brewery v. Prodeman, 12 Mo. App. 573; O ’Donnell v. Railway, 7 Mo. App. 190. (1) Plaintiff’s evidence made a prima facie case. The train was coming from the south. The horse was evidently frightened by the train and was- running north.

— Rón. John P. ■ Butler} Judge. (1) If the lands of adjoining proprietors are under a common outside enclosure, and they have not established or agreed to establish a division fence, they are bound, under the common law, to keep their cattle on their own premises. Redick v. Newburn, 76 Mo. 423; • O’Riley v. Diss, 41 Mo. App. 184; Hopkins v. Ott, 57 Mo. App. 292; Mackler v. Schuster, 68 Mo. App. 670; Jackson v. Pulton, 87 Mo. App. 228; Gilmore v. Harp, 92 Mo.

Cooper Circuit Court. — Ho». James E. Easell, Judge. (1) Plaintiff having sued defendant for “cutting out his eye” is not entitled to recover upon proof that the sight of the eye was destroyed. He coiild not sue on one cause of action and recover upon another. Houston v. Tyler, 140 Mo. 263. (2) The first instruction given in behalf of plaintiff is not supported by the evidence. This is subject to the same criticism as the petition.

— Ho». George F. Longan, Judge. (1) The court had jurisdiction over the person of defendant. The suit being by attachment was purposely brought in Pettis county where the personal property attached was found, and although the defendant was a non-resident of the county he appeared to the merits of the cause and submitted himself to the jurisdiction of the court.

James Gibson, J udge, (1) The act of Rentch-through which the plaintiff was injured was not within the scope of his duty, but arose through an independent collateral arrangement between the plaintiff and Rentch, made for the purpose of serving the particular convenience of the plaintiff, and quoad such service Rentch became the servant of plaintiff. Wood on Master and Servant, sec. 279; Walker v. Railroad, 121 Mo. 575; Snider v. Crawford, 47 Mo.

— How. John W. Mc-Elhimvey, Judge. '(1) The evidence fails to disclose any contract between plaintiffs and defendant for the construction of the building into which it is claimed the material went, and the case must therefore be reversed on the following authorities: Hause v. Thompson, 36 Mo. 450; Hause v. Carroll, 37 Mo. 578; Barker v. Berry, 8 Mo. App. 446; Mill Co. v. Brundage, 25 Mo. App. 268; Davis v. Creamery, 63 Mo. App. 477; McDow v. Sturvant, 41 Mo.

— Hon. J. D. Perkins, Judge. (1) Tbe general denial of tbe defendant puts in issue only tbe material facts pleaded in tbe plaintiff’s petition. Musser v. Adler, 86 Mo. 445; Nortbrup v. Ins. Co., 47 Mo. 435; Kersey v. Garton, 77 Mo. 645; Walling Co. v. Ball, 43 Mo. App. 504; Guinotte v. Ridge, 46 Mo. App. 254; Beese v. Garth, 36 Mo. App. 645 ; Hudson v. Bailroad, 101 Mo. 13.

— Ho». Argus Co%, Judge. . (1) An answer pleading contributory negligence must set up the facts that it is claimed to constitute such negligence. Harrison v. Railroad, 74 Mo. 369; Gurley v. Railroad, 93 Mo. 450; Waldhier v. Railroad, 71 Mo. 516; Schlereth v. Railroad, 96 Mo. 514; Wills v. Railroad, 44 Mo. App. 53. (2) Contributory negligence is an affirmative defense and must be pleaded.

— Ho». J. W. Alexander, Judge. When a prosecuting attorney files an information before a justice of the peace, based on the affidavit of a private citizen, filed therewith, the defendant can not be convicted of an offense of which the person making the affidavit has no actual knowledge. R. S. 1899, sec. 2749; State v. Fuser, 75 Mo. App. 263; State v. White, 55 Mo. App. 356; State v. Shaw, 26 Mo. App. 383.

Appeal ’ from Chariton Circuit Court. — How. John, P. Butler, Judge. (1) It is a well-settled rule that when the law requires absolutely a ministerial act to be done by a public officer and he neglects or refuses to- do the act he is liable in damages at the suit of a person injured. Knox Co. v. Hunolt, 110 Mo. 74; State v. Spencer, 79 Mo. 314; Insurance Co. v. Leland, 90 Mo. 177; 23 Am. and Eng. Ency. of Law, p. 378, also sec. G-, p. 379.

— -Ho». Jno, P. Butler, Judge. (1) Plaintiff’s petition is fatally defective, in this, that nothing whatever is sued for, asked, or claimed, and appellant’s demurrer thereto and objection to the introduction of any evidence in support thereof should have been sustained. R. S. 1899, sec. 776; Rush v. Brown, 101 Mo. 586; R. S. 1899, sec. 679; Ross v. Ross, 81 Mo. 84;.Dougherty v. Adkins, 81 Mo. 411.

— Ho». John P. Butler, Judge. (1) One who abandons or repudiates his contract can not recover on the contract. This rule is so universal and elementary that no authorities need be cited in support thereof. When, however, an infant abandons or repudiates his contract, he may-recover, not upon the contract but upon quantum meruit. Thompson v. Marshall, 50 Mo. App. 145; Com. Co. v. Smith, -86 Mo. App. 490; Lowe v. SinMear, 27 Mo.. 308; 16 Am. and Eng. Ency. of Law (2 Ed.), 290.

— How. W. W. Graves, Judge. (1) The certificate of deposit of $4,200 having been issued by the Farmers Bank, at the instance and request, and under the supervision of the county court, and having been thereafter negotiated and assigned to the appellant for value and without notice, respondents, the hank and Bates county, and those claiming under them, are estopped to say there were, in fact, conditions attached to said deposit other than as expressed in the written…

— Hon. J. D. Perkins, Judge. (1) When the Center Valley Company procured its lease from Hockadays, the owners of the land and laid the same out into mining lots, and posted and had in force the rules and regulations; and had and kept a mining register in which persons desirous of mining were compelled to register, when taking lots, the company had complied with the laws of this State, and the rules and .regulations became the contract between Ashcraft and the Center Valley…

— Ho»,. James E. Has-sell, Judge. (1) The court committed error in permitting the witness, W. J. Edwards, to testify as to conversations between Joseph R. Edwards and plaintiff, Herrick. “Parol evidence is not admissible to vary the meaning of a note.” Henshaw v. Dutton, 59 Mo. 139; Smith v. Thomas, 29 Mo. 307; Jones v. Shaw, 67 Mo. 667.

— How. John A. Hockaday, Judge. (1) The first and second instructions given for plaintiff are erroneous. The first submits to the jury a question of law, to be determined by them as a question of fact. Cockrell- v. McIntyre, 161 Mo.. 59. (2) The second instruction given for plaintiff does not con-fine the jury to the negligence alleged in the petition.

— How. William B. Teasdale, Judge. (1) The order granting a new trial was in violation of the statute. The ground for granting a new trial is thus , shown by the record. Bartley v. Railway, 148 Mo. 124. (2) If upon the pleadings and evidence the verdict was for the right party, no error in giving instructions could justify a new trial. Homuth v. Railway, 129 Mo. 642; Vo'gg v. Railway, 138 Mo. 180; Bartley v. Railway, 148 Mo. 124.

— Hon. W. B. leúdale, Judge. (1) ‘Where, from any cause, another judge than the trial judge comes to pass upon a motion for new trial, pending and undecided, a new trial should be (1) Judge Teasdale, as the successor of the trial judge, had authority in law’to sustain or overrule the motions for new trial and in arrest.

— No». William B. Teasdale, Judge. (1) There is no evidence that plaintiff’s injury was caused by any actionable negligence of defendant, and hence a verdict should have been ordered in its favor.- As to the presumptions: Wood’s Master and Servant, sec. 382; 2 Thompson on Negligence, sec. 48, p. 1053; Railroad v. Wagner, 33 Kan. 666; Jewett v. Railroad, 50 Mo. App. 551; Nolan v. Shickle, 3 Mo. App. 305; 0 ’Donnell v. Baum, 38 Mo-. App. 249; Smith v. Railroad, 113 Mo. 82.

— Ho». Hugh Dabbs, Judge. (1) Section 5848, R. S. 1899, provides, “As soon as any district sewer shall have been completed, the city engineer or other officer having charge of the work shall compute the whole cost thereof, and shall apportion the same against the lots or pieces of ground, exclusive of improvements, in proportion to. the area of the whole district, exclusive of the public highways, and such officer shall report the same to the council by bill or otherwise.”…

— Hon. Nat. M. Shelton., Judge. (1) The court erred in giving instruction number 1 for respondents. There was no evidence to support it. It was not pretended that respondents had complied with the contract of insurance sued on. They kept no cash book. It was impossible,as respondents themselves admitted, for any one to tell from the books they kept anything about the amount of the loss.' (2) Respondents’ instruction No. 4 is erroneous.

— Ho». C. A. Anthony, Special Judge. (1) The court erred in finding for plaintiff for the reason, that the charges of habitual drunkenness and intolerable indignities, the ■ only grounds sought to be charged in the petition are not sustained by the evidence. In fact indignities are not really charged. (2) The court erred in not granting defendant a divorce upon the matters charged in his cross-bill.

— Hon. Gallatin Craig, Judge. (1) No inventory of the stock insured was taken within twelve months prior to the issuance of the policy sued on, and none taken within thirty days thereafter as provided by the terms of that contract. No books showing a record of the business transacted were kept. This was a clear violation of the letter and spirit of the agreement and rendered the policy void. Crigler v. Ins. Co., 49 Mo. 11; Gibson v. Ins.

— Ho». P. G. Stepp, Judge. (1) By section 6010, Revised Statutes of Missouri, it is provided that the town may open and form public squares. By section 6350 it is provided that towns may contract debts for any of the purposes authorized by the charter. It was under these two sections that the town acted, the purpose being to form a public square.

— Hon. J. W. Peery, Special Judge. (1) The defendant, Sarah C. Murray, had a cause of action against the plaintiff arising out of a contract between himself and the defendant’s tenant for the sale of the corn, clearly given to her by section 4123, Revised Statutes 1899, upon which she could maintain a separate action against the plaintiff. The relation of creditor and debtor was thereby created, and she should have been allowed to prosecute her suit by way of counterclaim.

— Hon. A. M. Woodson, Judge. (1) The court committed error in giving to the jury the instruction of its own motion. Clearly, defendant Ford contracted to sell, and there was nothing upon which to predicate an instruction that he guaranteed to plaintiff that other stockholders would authorize plaintiff to sell certain stocks. Instructions not predicated upon evidence are misleading, prejudicial and erroneous, and the giving of same constitutes reversible error.

Linn Circuit Court. — No». John P. Butter, Judge. (1) The statement filed by plaintiff for his cause of action, completely states him out of court as it shows on its face that his commission was demanded- on a verbal contract (no purchase price or name of purchaser was alleged by plaintiff), for the sale of the land, which in law, is the same as no contract at all.

— Ho». A. M. Woodson, Judge. (1) The court erred in sustaining plaintiffs’ motion for a new trial. Defendant’s instruction No. 3 stated the law correctly and under the facts in the case was very favorable, to plaintiff. The instruction told the jury that if the trees were wholly or partly in the street and located so as to obstruct travel unless removed, plaintiff could not recover damages for them. 15 Am. and Eng. Ency.

— How. Henry M. Ramey, Judge. (1) The demurrer to the evidence should have been given. (2) Instruction number one given for plaintiff is erroneous.

— Ron. W. K. James, Judge. (1) The decree in this cáse can not be sustained because it is not responsive to the issue made by the petition. Ross v. Ross, 81 Mo. 84; Reed. v. Bott, 100 Mo. 62. (2) . The petition in this case is an ordinary bill asking for specific performance of trustee’s sale, amount of money paid into court and subject same to different liens of plaintiffs. No allegations are made which justify a personal judgment.

— Ho». Henry M. Ramey, Judge. (1) The demurrer prayed by the defendant at the close of all the evidence should have been sustained, and the court erred in overruling it.

<p>NEGLIGENCE: Evidence: Cause of Injury: Speculation. If the evidence fails to show the cause of the injury and leaves it a. matter of mere speculation there can be no recovery.</p>

— Ron. J, W. Alexander, Judge. The evidence on the part of plaintiff and that on the part of defendant taken as a whole shows conclusively that plaintiff was acting as the agent of defendant, with the knowledge and consent of the defendant and the court should have granted a new trial on the weight of the evidence. ■ It is the well-settled law of this State that where there is evidence on both sides of the question, it is for the jury to decide.