Volume 107 — Missouri Appeal Reports

— Hon. John A. Hockaday, Judge. (1) Plaintiff’s statement of Ms cause of action is insufficient. It fails to state a contract. It does not state the ownership of the property, nor inform the defendants of the basis of plaintiff’s claim. Whether plaintiff seeks to recover on a contract or on a quantum meruit. Drug Co. v. Johnson, 80 Mo. App. 428; Redmond v. Railroad, 90 Mo. App. 68; Turner v. McCook, 77 Mo. App. 196; McCreary v. Good, 74 Mo. App. 426; Doggett v. Blanke, 70 Mo.

— Hon. P. C. Stepp, Judge. (1) In the former suit, Girdner v. Galvert, for unlawful detainer, the plaintiff had no cause of action except that given by sections 4107 and 4108, which provide that in case the tenant, Hobbs, should sublet or violate any of the provisions of his lease, the landlord, after giving the usual ten days’ notice, shall have the right to re-enter and oust the subtenant.

— Hon. Nat. M. Sheltont Judge. (1) The court erred in sustaining defendant Smith’s motion for a new trial. A client is bound by the act of his attorney in court. The defendant filed two separate answers in this cause, neither of which were under oath, nor was any affidavit filed with the pleadings, denying the existence of the partnership of defendants, as required by section 746, Revised Statutes 1899.

— Ho». W. B. Teasdale, Judge. (1) Assuming the validity of the tax of 1894 there can he no lien on the two inside portions sold out of the tract. Carter v..Phillips, 49 Mo. App. 319; Charter of Kansas City, art. 5, secs. 41, 58. and 59; Taft v. Mc-Culloch, 135 Mo. 591; Gregg v. Jesberg, 113 Mo. 41; Heidelberg v. St. Francois Co. Ct., 100 Mo. 74; Charter, art. 5, sec. 37; St. Louis v. Howard, 119 Mo. 45; State v. Slover, 126 Mo. 659; State v. Ebbs, 89 Mo.

— How. W. W. Graves, Judge. (1) When the provision is read' in the light of the whole contract and the purpose for which a passenger elevator is made it is not ambiguous, and no issue of fact as to the interpretation thereof should have been submitted to the jury. Burress v. Blair, 61 Mo. 175; Chapman v. Railroad, 114 Mo. 542; Fruin v. Railway, 89 Mo. 397; Brannock v. Elmore, 114 Mo. 55; State v. Lafaivre, 53 Mo. 470; Miller v. Dunlap, 22 Mo. App. 97; Brooks v. Ins.

Charles Circuit Court. — Row. E. M. Hughes, Judge. (1) Plaintiff’s instruction No. 1 is erroneous in that, while purporting to state the conditions upon which plaintiff’s right to recover is predicated, it omits essential elements to such recovery. The question of the servant’s authority, duty, or scope of employment was not submitted in any of the instructions. Voegeli v. Marble & Granite Co., 49 Mo-.

Louis City Circuit Court. — Row. Bobt. M. Foster, Judge. (1) The plaintiff’s alleged cause of action was based on the starting of the car with a sudden jerk and shock.

<p>1. RECEIVER: Compensation. The compensation of a receiver is to be fixed by .the court appointing him in the exercise of its discretion, and, when thus fixed, it is conclusively presumed to be adequate.</p> <p>2. -: -: Public Policy. An agreement between the receiver of an insolvent bank and a purchaser from such receiver of certain assets of such bank, consisting largely of notes, that the receiver should be paid for keeping open the ‘ estate, for his services and the use of his name in the collection of such notes, in addition to the compensation already allowed him by the court for his services as receiver, was con- • trary to public policy and void.</p>

<p>Appeal from Audrain Circuit Court.— Hon. R. D. Rodgers, Judge.</p> <p>(1) The court erred .in admitting in evidence the affidavit and bond given by the defendants. This was not relevant to any issue to the case and its tendency was to prejudice the jury against the defendant. The fact that he had taken an oath not to adulterate liquor and given bond to that effect had no tendency to prove any fact charged in the indictment and was offered solely to make the jury believe the defendant was a “liquor dealer” and thereby arouse the prejudice of the jurors against defendant. State v. Conner, 65 Mo. 374; West v. Posten, 77 Mo. 284;. Baker v. Stonebraker, 36 Mo. 338; Watts v. Douglass, 10 Mo*. 679; Hohn v. Sweozea, 29 Mo. 199. (2) It is well settled that one who is both a physician and a druggist can sell intoxicating liquors on prescriptions written by himself. State v. Pollard, 72 Mo. App. 230; State v. Hale, 72 Mo. App. 78; State v. Carnohan, 63 Mo. App. 244; State v. Bevon, 52 Mo. App. 421; State v. Bailey, 73 Mo. App. 576; State v. Clevenger, 25 Mo. App. 563. (3) When parties resort to abbreviations such as have been described as a sort of mercantile shorthand parol evidence is always admissible to explain such abbreviated expressions. Bank v. Friche, 75 Mo. App. 178; Fruit Co. v. McKinney, 65 Mo. App. 220; Marshall v. Lynn, 6 M. & W. 118; Berry v. Kowalsky, 27 Pac. 286; Wilson v. Frisbie, 57 Ga. 269; McChesney v. Chicago, 173 UI. 75; Lacy v. Lumber Co., 43 Iowa 510; Western Union v. Collins, 45 Kan. 88; 21 Ency. of Law (2d Ed.), p. 1106.</p> <p>See section 3047, Revised Statutes 1899; State v. Nixdorf, 46 Mo. App. 494; State v. Bowers, 63 Mo. App. 639; 17 Am. and Eng. Ency. Law, 356; 21 L. R. A. 451; State v. Tetrick, 34 W. Va. 137; State v. Denoon, 34 W. Va. 139; State v. Brikely, 41 W. Va. 460.</p>

— Eon. James L. Fort, Judge. (1) The verdict was against the weight of the evidence. The plaintiff may state in his affidavit for an attachment as many grounds as he may have, and if he supports any one of them by evidence, he is entitled to have his attachment sustained. Cole Mfg. Co. v. Jenkins, 47 Mo. App. 667; Sauerwein v. Champagne Co., 68 Mo. App. 29; Tucker v. Frederick, 28 Mo. 574; Stewart v. Cabanne, 16 Mo. App. 531; Hasler v. Schopp, 70 Mo. App. 475.

— No». N. C. Riley, Judge. (1) At the time the accident occurred plaintiff was not in the line of his duty, nor at his proper place, but at the request of Martin Schloss, a fellow workman, had voluntarily gone into the west kiln to do the work of Schloss during the latter’s temporary absence, and is therefore not entitled to recover. Ryan v. Boiler Works, 68 Mo. App. 146.

<p>Appeal from St. Louis Circuit Court. — Hon. J. W. Mc-Elhinney, Judge.</p>

<p>ADMINISTRATION: Removal of Administrator: Waste. It is not sufficient ground for tke removal of an administrator of an éstate to show tkat ke kad sold real estate belonging to tke estate at a less price than anotker bid for tke same real estate, made ¿fter tke sale was consummated, nor was it evidence *of bad faitk on tke part of tke administrator to insist upon tke approval if a sale for tke lesser sum in tke face of a better offer from the decedent’s widow, where the evidence showed ke knew tkat suck widow was without means t-o make her offer good, although she offered to give bond, but did not make her offer good by tendering tke same.</p>

— How. Henry C. Riley, Judge. (1) The court erred in overruling the demurrer to the evidence at the close of plaintiff’s testimony. The .testimony of plaintiff showed that the soil in Arkansas and Missouri, along the route traversed by the train in, question, on the morning of the alleged accident, was of a black, sticky nature; that it had rained the night before and had been raining on the morning of said accident!

— Ho». H. W. Johnson, Judge. (1) “If the wire was out of working order, and that condition was brought about by no fault of the defendant, but by interfering causes like those wé have referred to, which it could not by reasonable diligence guard against, then the defendant was not guilty of negligence for the failure to promptly transmit the dispatch during the existence of such conditions.” De Rutte v. Tel. Co., 1 Daly 545; Smith v. W. U. Tel. Co., 57 Mo. App. 260.

Appeal-from St. Louis Circuit Court. — Row. J. W. Mc- ' Elhinney, Judge. The court ought to have sustained defendant’s demurrer to plaintiff’s evidence, or ought to have sustained it at the close of the whole case. Plaintiff knew when he hoarded the rear platform of the car that it was the end of its run and that it would carry-no more passengers. When he hoarded the car he knowingly and voluntarily assumed the risk of the car starting without regard to his presence.

— How. David H. Eby, Judge. (1) The petition does not state a cause of action. It does not allege want of reasonable or probable cause and does not show that the arrest was unauthorized.. Taaffe v. Kyne, 9 Mo. App. 15; Larke v. Bards, 4 Mo. App.. 186; Burns v. Erben, 40 N. Y. 463; 11 Mass. 492; 2 Chitty PI. 600. (2) The arrest was made by an officer having power to make it.

<p>Appeal from Audrain Circuit Court. — Hon. H. W. Johnson, Judge.</p> <p>(1) The burden is upon the plaintiff in this case to establish negligence of the defendant from Which any injury follows. Cash v. Railroad, 81 Mo. App. 109 ; Plefka v. Knapp, 145 Mo. 316; 2 Joyce on Damages, sec. 1282; Witting v. Railroad, 101 Mo. 641. (2) The court erred in refusing to give defendant’s instruction No. 3, because that instruction submitted the true rule of damages as provided for in the contract of shipment. McFadden v. Railroad, 92 Mo. 343; Kellerman v. Railroad, 136 Mo. 177; Wyrick v. Railroad, 74 Mo. App. 406; Hart v. Railroad, 112 U. S. 331; Hutchinson on Carriers (2 Ed. ), sec. 249; Sedgwick on Damages (8 Ed.), sec. 416; Graham v. Bickam, 1 Am. Dec. 328; Harmony v. Bingham, 12 N. Y. 99; Vaughn v. Railroad, 78 Mo. App. 639; Live Stock Com. Co. v. Railroad; 87 Mo. App. 330; Bowring v. Railroad, 90 Mo. App. 324.</p> <p>(1) By section 6 of the Interstate Commerce Act it is made unlawful for a common carrier, after it lias established and published its schedule of freight rates as prescribed by the act, to charge a greater or less compensation than is, specified in such public schedule, and to do so is a misdemeanor, punishable by fine or imprisonment. Wight v. U. S.. 167 U. S. 512'; Gerber v., Railroad, 63 Mo. App. 145; Railroad v. Harrison, 119 Ala. 539, 43 L. R. A. 385; Railroad v. Hefly & Lewis, 158 U. S. 98; Missouri R. Co. v. Trinity L. Co., 1 T. C. A. 553; Dillingham v. Fischl, 1 Tex. Civ. App. 546; In re Passenger Tariffs, etc., Wars, 2 Int. C. R. 340 ; 2 Int. C. C. Rep. 513; Matter of Grand Trunk Co., 2 Int. Co. Rep. 496; 3 Int. Com. C. Rep. 89; U. S. v. Railroad, 43 Fed. 26; U. S. v. Mellen, 53 Fed. 229; Railroad v. Railroad, 2 Int. Com. Rep. '729, 3 Int. Com. C. Rep. 465; U. S.'v. Howell, 56 Fed. 21.-</p>

— Hon. Henry C. Riley, Judge. The court erred in refusing the second paragraph of defendants’ instruction No. 2. All the facts therein enumerated are shown by thfe evidence, and being undisputed, should have been submitted to the jury fby instruction as badges of fraud from which the legal inference of a fraudulent purpose on the part of the vendor and of knowledge or notice thereof by the vendee might be drawn. Bump on Frdl. Conv.

<p>1. MECHANIC'S LIEN: Evidence. In an. action by a material-man to enforce a mechanic’s lien for lumber furnished, where the evidence showed the lumber was loaded in plaintiff’s yard to be taken to the defendant’s lot, with a dray ticket for every load, receipted by the original contractor, who swore that he knew most of the lumber itemized in the account was used in the work, and, to the best of his knowledge and belief, all of it was, such evidence was a sufficient showing that the lumber was used in the defendant’s house to justify a lien.</p> <p>2. —:-: Lot of Ground. Where the premises on which the lien was asked, was a platted lot in an incorporated city and definitely described, it was immaterial that it contained slightly more than an acre.</p> <p>3. ■ : Separate Contracts: Limitations. Where there are separate contracts between the building contractor and the owner for the performance of different jobs on the same building, a lien account filed by the contractor will not be good for the entire work unless it be filed within the statutory period after the completion of the work under each contract.</p> <p>4. -: -: -. But where the original contractor, after the house was nearly completed, made a new agreement with the owner for extra work, the materialman who furnished the lumber for both jobs to the original contractor, in a continuous running'account, in ignorance of the fact that the orig- , inal contractor had a separate contract for the extras, could enforce his lien filed within four months after the last item of the account.</p> <p>5. -: -: -: Notice. An interval from October 25th, when the last item was furnished for the original plan, to December 10th, when the lumber for extras was delivered, was too short to affect the materialman with notice that there was a separate contract for extras.</p> <p>6. -: Waiver. Where the original contractor gave the materialman a note on his general indebtedness, with the understanding that the note should be held until the contractor could collect money to make payment of his account, but the note was not accepted as payment and was produced for cancellation at the trial of the action to enforce the materialman’s lien, the latter’s lien was not waived.</p>

<p>1. INTERPLEADER: Sufficiency of Bill. Where an interpleader paid the fund into court and the case was tried on the pleadings of the rival claimants, the judgment will not be reversed at the instance of one of the rival claimants on the ground that some necessary allegation may have been omitted from the bill of interpleader.</p> <p>2. -: Right to File Bill. In order that the holder of a fund may file a bill of interpleader, the same debt must be claimed by hostile parties under adverse titles derived from a common source; the interpleader must be a mere stakeholder with no interest in the subject-matter, must have incurred no liability to either of. the claimants personally and must stand exposed to the risk of being vexed by two or more suits for the fund.</p> <p>3. -: -. A bill of interpleader will not lie if the stakeholder has assumed inconsistent obligations.</p> <p>4. -: -. In order to maintain the action, there must be doubt about the rights of the parties and a well-founded apprehension of an action by each party for the 'fund.</p> <p>5. -: -. It does not matter that by reasonable inquiry the Interpleader could have ascertained to whom the fund belonged, if be is in danger of being harassed by different suits, he has a right to protect himself by filing the bill.</p>

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

— Eon. J. T. Neville, Judge. (1) The pleading and proof in this case brings it within the rule that as between the original parties fraud may be shown in the execution of the instrument; in other words, a plea of non est factum can be based upon such fraud. Burrows v. Alter, 7 Mo. 424; Wright v. McPike, 70 Mo. 175; Lithographing Co. v. Obert, 54 Mo. App. 240; Nichols v. Young, 68 Mo. App. 448; Van Ravenswaayv.Ins.Co.,89 Mo. App. 73; Och v. Railroad, 130 Mo. 27;Ins.

<p>1. SALES: Delivery: Bill of Lading. The delivery of goods to a common carrier for transportation to the vendee, in accordance with his instructions, is a delivery to the carrier as the vendee’s agent and equivalent to a delivery to the vendee himself.</p> <p>2. -: -: -. Commission merchants sold a carload of corn “for cash,” to he paid for when its weight could he ascertained from the railroad company" over whose line the grain was to be shipped, which could not he done for several days. They gave up the hill of lading to the railroad company, on whose line the car stood when the sale took place, and directed the agent of that company to send the car to a certain carrier for transportation. By order of the purchaser, it was loaded into the car of a carrier, other than the one designated, and consigned to parties in a distant city, to whom the purchaser had sold it. The purchaser, at the time, procured a hill of lading, attached it to a draft on his consignee and dis-' counted the draft at a hank. The purchaser from the commission merchants failed to pay for the corn and it was attached hy the purchaser’s several creditors. The commission merchants replevined the corn from the sheriff who held it under the attachments, sold it and converted the proceeds. Held, the hank, assignee of the hill of lading, in an action for conversion against the commission merchants, could recover the value of the corn: Title passed to the purchaser on delivery to the carrier hy the order of the seller, and sending the car to a carrier other than the one directed hy the commission merchants, did not affect the actual delivery to the purchaser.</p> <p>3. -: -: Cash Sale. The sale was not “for cash,” and the fact that the corn had to he weighed to find the total price did not postpone the transfer of title or render the sale executory.</p> <p>4. -; -: Estoppel. The commission merchants, having made it possible for the purchaser to deal with the corn as an apparent owner, were estopped to claim it as against the assignee of the hill of "lading from the purchaser.</p>

<p>Appeal from Barry Circuit Court. — Row. R. G. Pepper, Judge.</p>

Louis City Circuit Court. — Son. J. FP. McElhinney, Judge. Action for personal injuries. Appeal from judgment in favor of plaintiff. (1) Plaintiff can not recover on the ground that Ms fellow-servant was negligent. He can recover, if at all, on the ground solely that defendant was negligent in failing to maintain a light at the point where the accident occurred. That is the only negligence alleged.

— Hon. II. G. Riley, Judge. Aetion for double damages, appeal from judgment in favor of plaintiff. (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 a penalty was claimed. Penal statutes must be strictly construed. Nanz v. Railroad, 87 Mo. 280; Fusz v. Spaunhorst, 67 Mo. 256; Kreitzer v. Woodson, 19 Mo. 327; Howell v. Stuart, 54 Mo. 400.

— Hon. D. H. Eby, Judge. The bill of exceptions not having been filed in time brings nothing for this court to review except the record proper. Monarch Rubber Co. v. Bunn, 78 Mo. App. 55 ; Union Nat’l Bank v. Barker, 145 Mo. 356; Maddox v. Railroad, 73 Mo. App. 510.

<p>Appeal from Audrain Circuit Court.— Eon. H. W. Johnson, Judge.</p>

Certiorari from Washington County Court. Under the application and petition the court did not have jurisdiction to grant the license for the following reasons: First. The record fails to show that the applicant was “a law abiding, assessed, taxpaying, male citizen, above the age of twenty-one years.” State v. Scott, 96 Mo. App. 620 ; State ex rel. v. County Court, 66 Mo. App. 96; State v. Higgins, 84 Mo. App. 536. Second.

— Hon. Henry G. Pepper, Judge. Action for personal injuries, appeal from judgment in favor of plaintiff. (1) The original and! amended petitions of the plaintiff failed to allege facts sufficient to constitute a cause of action. 14 Enc. PI. and Pr., p. 332 and cases cited; Bliss, Code Pleading (2 Ed.), sec. 211, p. 328; Dwyer v. Amer. Express Co., 55 Wis. 453; Railway v. Bouldin, 110 Ala. 185; 13 Ene.

— Ho». H. C. Pepper, Judge. (1) A contract made by a real estate broker, with a vendor of the real estate for the sale of property, which has been executed and the vendor of the real estate received the benefit of the broker’s service, is en-forcible on the part of the broker, notwithstanding his failure to comply with a city ordinance requiring him to have a license to act as a broker, and imposing a penalty for his failure' to do so. ' This wás a matter between the city…

Wayne Circuit Court. — Ho». Frank HDearing, Judge; The court erred in refusing to give defendant’s instruction at the close of plaintiff’s evidence, which instruction was in the nature of a demurrer thereto. Van-Bach v. Railroad, 171 Mo. 338; Baker v. Railroad, 147 Mo. 140; Hogan v. Railroad, 150 Mo. 36; Culbertson v. Railroad, 140 Mo. 35; Nixon v. Railroad, 141 Mo. 425; Bailey v. Railway, 152 Mo. 449; Lien v. Railroad, 79 Mo. App. 475; Pinney v. Railroad, 71 Mo.

— Eon. J. L. Fort, Judge. (1) The defendant was present in the person of its foreman, John C. Early, directing and superintending the movement of the steamer base, and it is conceded by the pleadings that he made the order that caused the injury, so that the question of whether or not the plaintiff was injured by the negligence of fellow-servants does not arise in this case. Borden v. Falk Co., 97 Mo. App. 566; Cox v. Granite Co., 39 Mo.

— Ho». H. C> Riley, Judge. The court erred in overruling the demurrer to the evidence at the close of plaintiff’s testimony, (a) Under the two grounds for attachment upon which this suit is based the sole issue is the intent of the defendant in making the sale of his stock of goods. Was the act about to be committed wherein the proposed sale was contemplated done with a fraudulent intent or in good faith? Best & Russell Co. v. Myerfield, 77 Mo.

Louis City Circuit Court. — Hon. J. A. Tally, Judge. TLe court erred in permitting’ witness Bayless to state over appellant’s objection Ms opinion or conclusion as to whether or not respondent’s expenditures for his boys were ‘ ‘ liberal, ’ ’ and in permitting respondent to state his conclusion that the provision he made for his family was ‘ ‘ a plenty for them. ’ ’ Fry v. Estes, 52 Mo.

Louis Circuit Court. — IIon. John W. McElhinney, Judge. (1) The petition on which this case was tried neither stated nor asked any punitive damages, and only compensatory or actual damages could be awarded had it have been shown that defendant spoke the alleged slanderous words. R. S. 1899, sec. 574, p. 251; Berry-man v. Cox, 73 Mo. App. 72. (2) The compensatory damages must be the natural and necessary consequence of the speaking of the alleged slanderous words.

Charles Circuit Court. — Hon. R. D. Rodgers, Judge. Action for personal injuries. Appeal from order sustaining motion to set aside verdict in plaintiff’s favor and grant new trial.

Louis Circuit Court. — How. J. W. Mc-Elhinney, Judge. STATEMENT. A lucid statement of the facts of this case and the propositions of law which ought to control its decision is contained in the memorandum prepared and filed by the learned circuit judge who tried it. We will therefore copy that memorandum: “1.

— -Non, E. M. Hughes, Judge. (1) There was no debt contracted for on the part ' of the defendant, for it was a complete and executed' contract and nothing left to be performed by either party, and there being no intent to defraud on the part .of Wade shown, an attachment did not lie under the fourteenth subdivision of the attachment act.

(1) The county court has original and exclusive jurisdiction to grant dramshop licenses and to examine and pass on the applications and petition for same. R. S. 1899, secs. 2993, 2997; State v. Evans, 83 Mo. 319; Austin v. State, 10 Mo. 591; Bean v. Barton Co. Court, 33 Mo. App. 635.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. Order compelling judgment debtor to undergo examination. (1) An affidavit to knowledge and belief and an affidavit to information and belief are clearly distinguishable. An affidavit made upon information and belief, where the statute requires knowledge and belief, as in this case, is insufficient. Clark v. Bank, 77 N. W. 805; Bray v. McClury,'55 Mo. 128; In re Parrish, 28 App. Div.

<p>Appeal from Greene Circuit Court. — How. J. T. Neville, Judge.</p> <p>(1) The action of the trial court in ordering the filing of an amended or supplemental hill of exceptions in this case, since the continuance of the cause, on the first setting in this court, is without authority, under the practice either at common law, or under the statute. The alleged amendment was not authorized, independently of the statute. Saxton v. Smith, 50 Mo. 490; State v. Brennan, 164 Mo. 505; State v. McAfee, 148 Mo. 377; Ellis v. School District, 89 Mo. App. 262. (2) The amendment of the hill was not authorized by the statute. B. S. 1879, sec. 3776.</p>

<p>Appeal from Phelps Circuit Court. — Hon. L. B. Wood-side, Judge.</p> <p>(1) In order for plaintiff to recover in this case it was necessary for him to show that he performed the services in question and that he understood at the time that he performed said services and that he was to receive pay from his mother and that she understood at the time that she would be expected to pay for any services that the plaintiff might render her. Woods v. Land, 30 Mo. App. 176; Lawrence v. Bailey, 84 Mo. App. 107. (2) When a child renders service for its parents the law raises the presumption that such services are acts of gratuitous kindness and that the child is not entitled to pay for such services unless there is shown by the weight of evidence that there was in existence a contract that the child was to receive pay for such services. .Penter v. Roberts, 51 Mo. App. 222; Louder v. Hart, 52 Mo. App. 377; Bittrick v. Gilmore, 53 Mo. App. 53; Costuba v. Miller, 137 Mo. 162. (3) It is too. plain to need the citation of authority for it has been repeatedly held that voluntary payments made in the absence of any understanding can hot be recovered from the beneficiary. Mier v. Mier, 15 Mo. App. 68; Mier v. Mier, 88 Mo. 566; Ritchie v. Carter, 89 Mo. App. 290.</p>

— lion. William L. JarroW, Judge. (1) The agency of plaintiffs could not be revoked by any act of defendant, without giving them notice thereof. Bailey v. Chapman, 41 Mo. 537; Gaty v. Sack, 19 Mo. App. 470; Lane v. Albright, 49 Ind. 275; Fox v. Rouse, 47 Mich. 558; Iselin v. Griffith, 62 Iowa 668; Ford v. Easley, 88 Iowa 603; Woodall v. Foster, 91 Tenn. 195; Reed v. Reed, 82 Pa.

— No». J. W. Alexander, Judge. (1) Injunction was the proper remedy. R. S. 1899, sec. 3649, p. 899. (2) The court erred in excluding the evidence of defendant of the amount of timber he cut off the premises and sold. (3) The tenant was entitled to dead and down wood only, under the common law. Williams on Real Property (17 In. Ed.), p. 149.

— Eon. William L. Jmrott, Judge. (1) Under the circumstances in this cas,e, defendant, at time and-place of accident, owed to plaintiff’s wife, the duty of exercising ordinary care: Ray’s Neg. Imp.

— Hon. George F. Longan, Judge. (1) The court erred in sustaining the plaintiff’s motion to dismiss the defendant’s appeal. R. S. 1899, sec. 4006. (2) Our present statute is an exact copy of the statute of 1845, except in the statute of Í845, the following provision is contained: “Nothing herein contained shall be construed to extend to confessions of judgments in actions commenced hy process.” Statutes of 1845, chap. 93, art. 6, sec. 2.

— Hon. Wm. A. Davidson, Judge. (1) It does not appear from the amended return that the summons was served on an agent, officer, or employee of defendant, plaintiff in error, as required hy sections 570 or 995, General Statutes of 1899. (2) The amended return does not show that the summons was served on a person in charge of an office or place of business of the defendant, the plaintiff in error, as required by sections 570 or 995 of the General Statutes of 1899.

— Row. A. M. Woodson, Judge. Filed lengthy argument. Also filed argument. STATEMENT BY SMITH, P. T, This is a suit in equity. The substantive allegations of the petition were: 1. That the city of St. Joseph was a city of the second class and that Ashland avenue was a public street in said city on which certain lots, of which plaintiff was owner in fee, abutted. 2.

— Hoot. W. K. James, Judge. (1) The allegation that plaintiff delivered and turned over to defendant twenty-five shares of stock is not sustained by evidence that plaintiff delivered to defendant a certificate for forty-five shares, with plaintiff’s assignment thereof to J. W. Cave, indorsed thereon.

— Hon. J. D. Perkins, Judge. (1) There was no testimony on the trial showing the reasonable value of the alleged services rendered by the plaintiff for the defendant in reference to the Shoemaker land; nor was there any testimony whatever, showing or tending to show that the pretended services had any value whatever.

— lion. Jcumes E. liasell, Judge. (1) It is well settled in this State that an agent or servant employed for an indefinite period of time may be discharged at any time. Such is the legal import .or meaning of a contract of that character. Boogher v. Ins. Co., 18 Mo. App. 533; Finger v. Brewery, 13 Mo. App. 310; Evans v. Railway, 24 Mo. App. 114. And it is immaterial that the compensation for the service is so much a day, month or year.

— How. J. H. Slover, Judge. • (1) The court should have directed a verdict for the defendant. Plaintiff’s own evidence showed that it had ample time and opportunity to take legal action to hold the money in controversy, and that it was urged to do so, hut did not do so because it was looking to Edmisson to pay the balance due it. Drumm-Flato Co. v. Gerlach Bank, 92 Mo. App. 326.

— No». E. M. Gates, Judge. (1) The mortgage was void on account of usury. R. S. 1899, sec. 3710. (2) Defendant claiming to be the owner of the cattle, had a right to rely upon this defense. Keim y. Vette,. 167 Mo. 389; Storage Co. v. G-lasner, 169 Mo. 48; Johnson v. Simmons, 61 Mo. App.' 395; Rubber Co. v. Wilson, 55 Mo. App. 656; Voorhees v. Stead, 63 Mo. App. 370; Coleman v. Cole, 158 Mo. App. 253; Marx v. Hart, 166 Mo. 503.

— Hon. Nat. M. Shelton, Judge. • (1) No- salary can be allowed to defendant or recovered by him for acting as treasurer of the corporation in the absence of some provision of the charter of the company, its by-laws or resolutions of its directors authorizing and fixing the same. Taussig v. Railroad, 166 Mo. 28; Besch v. Carriage Co., 36 Mo. App. 333; Renners v. Schiro Sekey, 70 Mo. App. 364; Pfeiffer v. Landsburg, 44 Mo. App. 59.

— Hon. J. W. Alexander, Judge. (1) The evidence of these witnesses was not admissible in rebuttal; it should have been offered by respondents in chief. Chrystal v. Craig, 80 Mo. 367. (2) The court erred in giving instruction 3 on the part of' respondents. If the total insurance exceeded three-fourths the actual cash value of the property respondents were not entitled to recover. Hence the court erred in refusing to give defendant’s instruction 7. Dolan v. Ins. Co., 88 Mo.

— Hon. J. W. Alexander, Judge. (1) A tenant has a right of ingress and egress on the demised premises for a reasonable time after the termination of his tenancy, to remove his property. Smith v. Boyle, 92 N. W. (Neb.) 1018; Daniels v. Brown, 69 Am. Dec. 505, 34 N. H. 454; Lewis v. Mc-Nátt, 4 Am. Dec. 96 (note), 65 N. C. 63.

— How. J. H. Slover, Judge. (1) The court erred in not sustaining a demurrer to the evidence and in not giving peremptory instruc- ■ tions 1, 2 and 3 as asked by defendant. (2) Instruction numbered three, as asked by the defendant, should have been given. (3) Instructions 2, 4, 5 and 8 given at plaintiff’s request were at least erroneous in that they predicated a recovery on the theory that there was some evidence that a floored or closed skid was not a safe appliance.

— Hon. A. M. Wood-son, Judge. (1) The petition for the -work having been signed for 761 feet only, the total frontage being 1,683 feet, was insufficient for any purpose under section 5661, Revised Statutes 1899'; the law in force at the time of the passage of the ordinance directing the improvement.

— Ho». A. F. Evans, Judge. (1) It is proper to pay the cost of moving the schoolhouse out of the incidental fund. Moving a house is not building a house, nor is there any provision for voting money to move a schoolhouse. R. S. 1899, sec. 9750, ninth subd., and sec. 9778. (2) By voting to move the schoolhouse, the district thereby appropriated the money to pay for it, the money being in the treasury.

— lion. J. H. Slower, Judge. (1) The second amended petition and the first count of the third amended petition related to and were, based upon an affirmation act of commission committed in spring of 1895, while the second count of third amended petition was based upon the sin of omission committed at or about the time the sign fell on September 24,1900. Stevins v. Walpole, 76 Mo. App. 219; Fox v. Park Co., 42 N. Y. S. 794; 2 Wood on Nuisances, 1278.

— How. James Gibson, Judge. The court can, at the trial of a motion to quash an execution, inquire into all matters affecting the judgment, which have arisen and transpired since the rendition thereof. If the defendant, respondent herein, has forfeited her rights under an order for temporary alimony or has compromised or settled the same it may he shown at the trial of a motion to quash the execution. Johnson v. Green, 60 Mo.

— Hon. 8. G. Doxi'glass, Judge. (1) The objection to the introduction of any testimony under the petition should have been sustained and the peremptory instruction, asked by the defendant at the close of plaintiff’s testimony, that plaintiff was not entitled to recover under the pleading and proof, the same request for an instruction at the close of all the evidence, should have been given, and the motion in arrest of judgment should have been sustained.

— Hon. W. B. Teasdale, Judge. (1) The petition stated tyu distinct causes of action. (2) The defendant’s counterclaim is a separate and distinct cause of action. Mooney v. Kenneth, 19 Mo. 551; McPherson v. Meek, 30 Mo. 345; Haltzbauer v. Heine, 37 Mo. 444; Miller v. Creigler, 83 Mo. 402; Herman v. McNamara, 77 Mo. App. 7; Barnes v. McMillan, 78 Mo. 269. (3) The only defense interposed to the •second count of plaintiff’s petition was the counterclaim for damages.

— How. A.- F. Evans, Judge. (1) Under the statement made in the final settlement, and the allegation in the objections thereto, there was only one point for the court to decide in the case, to-wit: Did the judgment in partition adjudicate this appellant’s right to his share of the surplus in this ease? A judgment is a conclusion upon matters submitted to the court by the pleadings. Orvis y. Elliott, 15 Mo. App. 96; Lumber Co. v. Niekey, 89 Mo.

— No». W.' B. Teasdale, Judge. (1) Under the facts of this case, which are undisputed'in relation to the defendant’s continuous use of the words “Old Crow” upon their labels for a period of twenty-three years, the statute of limitations is a complete defense to the plaintiff’s action. Our statute applies to all civil actions, whether legal or equitable. Rogers v. Brown, 61 Mo. 192; Hunter v. Hunter, 50. Mo. 445; White v. Pendry, 25 Mo.

— -Ho». E. P. Gates, Judge. (1) Evidence of the subsequent value of the property and the effect of the creek thereon was improper. Foncannon v. Kirksville, 88 Mo. App. 279; Pinney v. Berry, 61 Mo. 368; Chamberlain v. Light and Power Co., 158 Mo. 18; Brown v. Railway, 80 Mo. 457; Smith v. Railway, 98 Mo. 20; O’Neill v. Crane, 67 Mo. 250. (2) Plaintiff’s instruction 3 was erroneous. Brown v. Railway, 80 Mo. 457; Pinney v. Berry, 61 Mo. 368; Foncannon v. Kirksville, 88 Mo.

<p>Appeal from the Gentry Circuit Court. — Eon. Gallatin Craig, Judge.</p> <p>Submitted an argument.</p> <p>Also submitted an argument.</p>

— Now. A. M. Woodson, Judge. (1) The motion for a special jury should have heen sustained. It was filed more than three days before the day on which it was set for trial on the docket on which it was tried. The motion was filed June 10 and passed on June 11, and the. case was set for trial and was actually tried on June 15. The fact that it had been previously set on the docket in the court from which the venue was changed should make no difference.

’Appeal from Buchanan Circuit Court. — Horn. Henry M. Ramey, Judge. (1) Plaintiff’s indebtedness accrued under the statute, November 5, 1902, the date on which the last material was furnished, pursuant to .contract between the owner, Eshelman, and the original contractor, Frieze, and pursuant to the contract between plaintiff and Frieze. Livermore v. Wright, 33 Mo. 31; Iron Works v. M. & S., 80 Mo. 265; Miller v. Whitelaw, 28 Mo.

— Ron. J. W. Alexander, Judge. (1) Defendant, after parting with the title to the land, whether fraudulently or otherwise, is in no position to claim personal exemptions therein, and his motion should have been overruled. State ex rel. Fulks v. Pruitt, 65 Mo. App. 154. (2) Where real estate not used as a homestead may become exempt by selection, such selection can not be made after the sale of the property. Stewart v. Stewart, 65 Mo. App. 663; Cope v. •Snider, 99 Mo.

— Hon. A. M. Woodson, Judge. If a person employs a real estate agent to sell his property, and in the contract of employment prescribes the terms and conditions on which the broker may act in selling or in securing a purchaser, and if the broker does not himself sell the property, but does find and send to Ms employer one who is ready, able and willing to bny the property on the terms and conditions prescribed in the contract, and offers so to do, then the broker has earned…

Original Proceedings by Habeas Corpus. (1) “In a contest for the possession of the person of a minor child, the welfare of the child is always the controlling consideration with the courts.” In the matter of-Berenice S. Scarritt, 76 Mo. 565 ; In re Laura Boyle, 16 Mo. App. 159. In matter of Francis G. Delano, 37 Mo. App. 185; In re Blackburn, 41 Mo. App. 631.

-Appeal from Worth Circuit Court. — Ho». Gallatin Craig, Judge. (1) The court erred in giving instruction 1 on the part of the defendant, submitting to the jury the question of ownership of the property in controversy when it is admitted by the record that plaintiff was and is the ■owner of same. State ex rel. v. Henderson, 86 Mo. App. •482; Marr v. Bunker, 92 Mo. App. 661; R. S. 1899, sec. 1575; Goldsmith v. Taussig, 60 Mo. App. 463; Cole v. Railroad, 21 Mo. App. 443.

— Hon. P. G. Stepp, Judge. (1) The trial court erred in refusing to give defendant’s instruction in the nature of a demurrer to the evidence. There was no evidence that the section foreman Lemley told plaintiff where to take hold of the switch rail, if he told him at all.

<p>Appeal from'St. Louis City Circuit Court. — Ho». D. D.. Fisher, Judge.</p>

Louis Court of Criminal Correction.— Hon. James T. Neville, Judge. (1) “ Other means ’ ’ must be construed as ejusdem generis with “mechanical,” and could not he applied to merely human and physical means, apart from some machine. (2) “Bets” is plural, and upon strict construction of a highly penal statute, allegation and proof of more than one act of “registering- or recording” was necessary.

<p>1. JURISDICTION: Supreme Court: Constitutional Question. An objection that a statute, under which an indictment was framed, is unconstitutional, is insufficient to raise a constitutional question, where it fails to point out the particular part of the constitution which the defendant claims was violated.</p> <p>2. -: -: -. A defendant indicted for misdemeanor can not, on appeal, invoke the jurisdiction of the Supreme Court on the ground that the statute, under which he was indicted, is unconstitutional, where no constitutional question was decided adversely to him by the trial court.</p>

<p>1. DEPOSITIONS: Notice to Take: Construction of Statute. In the concluding clause of section 2885 of the Revised Statutes of 1899, which provides for the service of notice to take depositions upon the adverse party or his attorney, “where such party or his attorney resides in this State,” the word “where” is synonymous with “if” and does not require such notice to be served at the place of abode of the party or his attorney.</p> <p>2. PRACTICE: Instructions: Commenting Upon Evidence. An instruction which gives undue prominence to- isolated portions of the evidence should not be given, but where particular facts, adverted to in an instruction, were conspicuous in any aspect of the ease, and it could not be determined that the result of the case was effected thereby, the adverting to such facts in the instruction was not reversible error.</p>

Francois Circuit Court. — Hon. B. A. Anthony, Judge. (1) The damages 'assessed by the jury are excessive, and indicate that the assessment was the result of prejudice, and the verdict, therefore, should not be allowed to stand. Sawyer v. Eailroad, 37 Mo. 240; Duggan v. Eailroad, 46 Mo. App. 266; Parsons v. Eailroad, 74 Mo. 299.

— Hon. H. G. Riley, Judge. Action for conversion and judgment of trial court for defendant. (1) In view of the pleadings the court erred in permitting defendant, over plaintiff’s objection, to show condition of other lumber, previous inspection, waste, etc. McGuire v. DeFrese, 77 Mo. App. 683; Obert v. Dunn, 140 Mo. 476, 41 S. W. 901; Eddy v. Baldwin, 32 Mo. 369; Green v. Gallagher, 35 Mo. 226.

— Hon. E. B. McKee, Judge. (1) This action being for an accounting, is purely an equitable proceeding, of which the justice of the peace before whom it was brought, had no jurisdiction; and the right of the circuit court to hear and determine the matters involved, being derivative, and not original, it acquired no jurisdiction on appeal. Seeser v. Southwick, 66 Mo. App-. 671; Miller v. Life Ins. Co., 68 Mo. App. 19.

— Row. J. W. Mc-Elhmney, Judge. (1) As between the obligors in a note, parol evidence is always admissible to show liability as principals or sureties. Garrett v. Ferguson, 9 Mo. 124;. Bank v. Wright, 53 Mo. 153. (2) Josephine Burr executed the notes to Brock on a promise of appellant that Josephine should not lose anything thereby.

— No». Asberry Burkhead, Judge. (1) The court erred in striking out the appellants’’ answer.

— No». J. L. Fort, Judge. (1) A release is construed as a covenant not to sue. Arnett v. Bailway, 64 Mo. App. 368. (2) Then, as a release is a simple contract not to sue, it must he supported by a valuable consideration. The promise of the servant, in this case, not to sue, was made wholly without consideration, the alleged release being a mere nudum pactum, and can not be enforced at law.

— Hon. J. L. Fort, Judge. The court should have given defendant’s instruction at the close of the case that under the pleading and evidence of the whole case the verdict should be for the defendant. This was not a case for the jury under the pleadings and evidence, and the court erred in not so instructing them, droll v. Tower, 85 Mo. 249. The evidence must correspond with the allegations. Raming v. Railway, 157 Mo. 506, 57 S. W. 268.

<p>ACCORD AND SATISFACTION: Maintenance of Children. Where, pending a suit for divorce by a wife against the husband, they reached an agreement which was not reduced to writing for a settlement of all their differences and in pursuance of such settlement, the husband paid the wife a sum of money and they exchanged deeds for various lands held by > each, such settlement was an accord and satisfaction and barred the wife’s right to recover for the maintenance thereafter of two minor children, though they were not specifically mentioned in the settlement.</p> <p>Dissenting Opinion by Bland, P. J.</p> <p>1. REFERENCE: Findings of Referee: Review by Court. The circuit court may, on motion of either party, review the findings of the referee and make its own findings, and the appellate court, on appeal, may review the proceedings and affirm or reverse the judgment of the circuit court.</p> <p>2. DIVORCE: Maintenance of Children. It is not the policy of the law to deprive children of their rights on .account of dissension of their parents, to which they are not parties, and a divorced wife may maintain an action against her divorced husband for tbe maintenance of tbeir children, although she deserted him and refused to live with him and withheld their custody and society from him.</p> <p>3. ACCORD AND SATISFACTION: Burden of Proof. It devolves upon a party who asserts a settlement in defense of an action, to establish by a preponderance of the evidence that the settlement included the matters which are involved in the suit.</p>

— So». James T. Neville, Judge. (1) Under the plain terms of the contract it was the duty of insured to produce for defendant’s examination bills of purchases of goods. He kept no books. His loss could not be arrived at without some knowledge as to the amount of goods purchased. The condition is reasonable. Compliance with it was demandéd. It was not complied with. It was not waived.

Appeal' from Greene Circuit Court. — Eon. James I. Neville, Judge. (1) Sansone was the agent for Rebori for the purpose of collecting bills and adjusting disputed accounts. Rebori is therefore responsible for all acts done by said Sansone while Sansone was acting as servant or agent of and engaged in the work of Rebori. The assault was committed by Sansone while said Sansone was attempting to adjust the disputed account and solely because plaintiff claimed the bill was paid.

<p>1. STATUTE OF FRAUDS: Executed Contract. An oral contract for tlie sale of land which lias been completely executed Is not within the statute of frauds.</p> <p>2. EVIDENCE: Consideration: Paroj Testimony. It is competent to show the real consideration for a conveyance of land by oral testimony which contradicts the recited consideration, - unless the effect of the evidence is to destroy the deed by showing there was no consideration for it, or that the consideration was a good instead of a valuable one, or unless the named consideration is stated in such a manner as to show the parties intended it to bo an essential term of the written instrument.</p> <p>3. -: -: -: In an action for the balance of the purchase price of a tract of land, it is competent to show by parol evidence, in contradiction of'the recited consideration, that the price was to be so much per acre, and that the actual survey showed a larger quantity than the amount estimated.</p> <p>4. -: -: Vendor and Vendee: Description. A recital of the number of acres in a conveyance without words manifesting a purpose to make it controlling, yields to the description by metes and bounds, or subdivisions, and does not stand in the , way of letting in proof of the true acreage in order to establish the true considerattion.</p>