Volume 109 — Missouri Reports

— Hon. M. Gr. McUbegob, Judge. (1) Plaintiff was entitled to have the mistake in the description in the deed corrected. Equity will 'correct a mistake whether as to fact or law, made by ■the draftsman of a conveyance, or other instrument, 'which does not fulfill, or which violates, the manifest intentions of the parties to the agreement.

— Hon. J. M.. Davis, Judge. (1) Every fact which the plaintiff must prove to' maintain Ms suit is constitutive in the sense, of the code, and must he alleged. Pier v. ILeinrichoffen, 52 Mo. 336. And advantage can he taken of this defect at any stage of the proceedings. Birdsal v. Davies, 58 ■ Mo. 139; R. S. 1889, sec. 2047, p. 541. Each count-must he good, and one count is not aided hy another,. unless reference thereto is expressly made. Clark v. Iron Co., 9 Mo.

— Hon. M. G-. McGregor, Judge. (1) Tbe judgment of tbe United States circuit court for tbe eastern district of Missouri was a lien upon tbe land in question. 1 Black on Judgments, secs. 413, 415; Baker v. Morton, 12 Wall. 150; McMicken v. Smith, 11 Pet. 25; Freeman on Judgments, sec. 403; R. S. of U. S. [Ed. 1878] sees. 653-4.

— Hon. J. M. Davis,.. Judge. (1) Claim for improvements cannot be tried in ejectment proceeding; suit must be instituted, as provided in statute, after judgment, and before the same' tribunal the ejectment case is tried before. R. S. 1889,. sec. 4645, et seq.; McClanahanv. Smith, 76 Mo. 428; Jasper Co. v. Wadlow, 82 Mo. 172; Malone v. Stretch,. 69 Mo. 25; Henderson v. Langley, 76 Mo. 226; Stump-v. Hornbeck, 94 Mo. 26.

— Hon. E. L. Edwabds, Judg6 (1) The deed of trust was valid as to Doran and his creditors, when it was given, and, unless the respondent has been injured by withholding it from the record, it cannot successfully attack its validity.

<p>Appeal from Bay Circuit Goivrt. — Hon. James M. Sandusky, Judge.</p>

<p>The Case of Chicago, Sanie Fe & California Uaihoay Company v. Miller, 106 Mo. 458, followed and affirmed.</p>

Louis City Circuit Court. — Hon. D. D. Fishee, Judge. (1) The court below erred in refusing defendant’s instruction, that plaintiffs cannot recover in this action. (2) The court also erred in refusing defendant’s instruction, that, if plaintiffs acquired their title to the lot by the deeds of 1883 and 1884, the plaintiffs cannot recover in this action. (3) The court also erred in refusing defendant’s instruction to the effect, that if Mary 0.

— Hon. J. H, Sloyer, Judge. ' Plaintiff sued for personal injuries and obtained a verdict and judgment, from wbicb defendants appealed. Tbe facts appear in the opinion of the court, (1) Plaintiff’s evidence failed entirely to establish the fact that the blood mill was started by any acts of omission or commission in construction of defendants, ■which, plaintiff alleged in his petition to be the cause of the injury.

Certified from Kansas City Cowrt of Appeals. (1) The evidence of plaintiffs precluded any recovery in this case; because it established that all the merchandise embraced in the contract of sale, read in ■evidence, was not tendered to defendants; the contract of sale was an entirety, and defendant could not be ■compelled to accept a part of the merchandise. 2 Parsons on Contracts [5 Ed.] p. 652; Bussell v. Nicoll, 3 Wend. 112; Sheffield v. Baimer, 1 Mo. App. 167.

Louis City Circuit Court. — Hon. Geo. ~W. Lubke, Judge. (1) The language of the donor in making the gift, coupled with the delivery of the certificate of deposit to Thomas Dunn made a complete donatio causa mortis, notwithstanding the paper was not indorsed, and such delivery conveyed to the donee the title to the property given for the purpose indicated by the donor. Trorlichtv. Weizenecker, 1 Mo.

— Hon. Henry M. Ramey, Judge. (1) When E. O. Hays platted the land he destroyed its identity by its original description; and the law will enforce recognition of the new description, which the statute authorizes to be made. A sheriff’s sale, by the original description, is void. Evans v. Ashley, 8 Mo. 178; Hartv.

Lows City Circuit Court. — How. D. D. Eisher, Judge. The evidence shows that the stock was worth $388: per share, and the commissions of the. executor should have been allowed on that valuation. It is palpable also on the face of the record that there was no variation in the intrinsic value of the stock between the first day of February, 1886, and the sixth day of December,, 1886, the period covered by the above transfers.

Louis City Circuit Court. (1) A railway company offering an attraction to-children to play about its dangerous machines or agencies, exposed in a locality where it is accessible to them, will be liable for injuries resulting therefrom. FinJc v. Furnace Co., 10 Mo. App. 69; Stout v. Railroad, 2 Dill. 294; Ostertag v. Railroad, 64 Mo. 421; Lynch v. Nun-din,. 1 Q. B. 29; Grafton v. Raiboad, 55-Mo. 580; Morrow v. Raiboad, 29 Mo. App. 437; Brown■ v. Raiboad, 27 Mo.

Quo Warranto. This is an information in the nature of a quo warranto on the relation of the attorney general, against the defendant, charging it with an unlawful exercise of its corporate franchises.

<p>Appeal: mandate, following directions of. The judgment of the lower court being in accordance with the decisions of, the supreme court on former appeals (80 Mo. 125; 97 Mo. 223) is affirmed.</p>

Louis City Circuit, Court. (1) The head lines and text of the article published were defamatory, and being published of a public officer with reference to his, office were libelous per se, and the petition stated a cause of action. Leggv. Dunleavy, 80 Mo. 558; Johnson v. Dispatch Co., 65 Mo. 539; Price v. Whitely, 50 Mo. 439; Kemble v. Sass, 12 Mo. 499; Hermann v. Bradstreet, 19 Mo. App. 227; Randall v. News Ass’n, 44 N. W. Rep. (Mich.) 783; Belknap v. Ball, 47 N. W. Rep.

— Hon. O. M. Spencer, Judge. (1) While the statute of limitations applicable to personal actions may defeat a suit upon the notes secured by the deed of trust sought to he foreclosed, still the deed of trust itself can he foreclosed as long as no personal deficiency judgment over is asked for, provided no ten years’ adverse possession is shown against mortgagee as required by real-estate limitation act.

— Hon. John W. Henry, Judge. Even conceding that the devise to the great grandchildren is void, the whole of the third clause of the will is not, therefore, void. Sections 4 and 6, page 442, G-eneral Statutes, 1865, abolishing entails applies to this case. (1) Under the will the four' children became tenants in common (not joint tenants) of the land. Gr. S. 1865, sec. 12, p. 445. (2) The third section is void as creating a perpetuity.

Fouis City Circuit Court. — Hon. L. B. Valliant, Judge. This being an action in equity, the court will examine the whole case and look into the evidence. Benne v. Schnecko, 100 Mo. 257.

— Hon. W. J. Stone, Special Judge (1) The Wabash freight ear and Central Pacific fruit car, mentioned in evidence, were both properly-inspected at Nevada, immediately… Held: in a parallel case, that plaintiff 'was not entitled to recover. Hathaway v. Railroad, 51 Mich. 256. (2) The injury, therefore, complained of was one of the risks assumed by deceased; and the court, at the close of all the evidence in the case, should have sustained defendant’s demurrer to the evidence.

<p>< Criminal Practice: jurisdiction: appeal. Where the conviction, on a trial for felony is for a lower offense, amounting only to a misdemeanor, the court of appeals, and not the supreme court, has jurisdiction of an appeal therefrom.'</p>

<p>Criminal Practice: appeal: jurisdiction. Where the conviction on a trial for a felony is for a lower offense amounting only to a misdemeanor, the court of appeals, and not the supreme court, has jurisdiction of an appeal therefrom.'</p>

— Hon. E. L. Edwards, Judge. (1) No exceptions were saved to the admission or rejection of testimony. (2) The instructions properly declared the law, and the conviction was proper, for if there was a larceny committed at all it was a larceny in a dwelling-house, and grand larceny, irrespective oí the value of the property stolen. R. S. 1889, see. 3537; State v. Bamelsburg, 30 Mo. 26; State v. Butter-field, 75 Mo. 297; State v. Brown, 75 Mo. 317; State v. Kennedy, 88 Mo. 341.

<p>Appeal from Camden Circuit Court. — Hon. W. I. Wallace, Judge.</p>

Clair Circuit Court. — Hon. D. P. Stratton, Judge. (1) The homestead can exist only where the legal title is vested in the head of the family; at the time of his death it does not exist in a mere equity in the land. R. S. 1889, sec. 5441. (2) The homestead may be sold in partition where the land is not susceptible of division, subject to the homestead rights of the widow and minor children. R. S. 1889, sec. 5439; Poland v. Vesper, 67 Mo. 727.

— Hon. H. P. White, Judge. (1) The indictment is bad. First. ' It fails to designate or describe in any way the false pretense, trick, fraud or bogus check or instrument. Second. It fails to designate who the accused intended to defraud, or against whom his fraudulent intent was directed. Tltird. It violates the constitution of the state of Missouri by not sufficiently informing the accused of the nature of the accusation made against him. Fourth.

Hon. S. M. Green, Special Judge. The writ ought to have been quashed, because relator had an adequate remedy at law, and it is apparent upon the face of ¡the application and writ itself. The power to audit and settle demands against a county is conferred on the county court. R. S. 1889, sec. 3422. When the county court refuses to allow an account appeal is the remedy.

— Hon. E. M. Hughes,, Judge. The action is to enforce the collection of taxes;judgment for defendant. Plaintiff appealed, The material facts are given in the opinion of the court (1) The property in controversy was assessed under article 9, chapter 138, Revised Statutes, 1889, of Missouri. (2) The words “joint-stock companies” in section 7755 of said article 9 are synonymous with “joint-stock corporation.” R. S. 1889, art. 1, sec. 2480, ch. 42.

— Hon. Maubioe Obameb, Judge,. (1) A suit in ejectment is an action at law, and this court has so often held that a plaintiff in ejectment must recover upon the strength of his own title that the citation of authorities would be supererogation. (2) The state constitution, article 8, section 12, is mandatory in its forbidding the appointment of an alien to office and its prohibition renders void every act of an alien usurping the duties of an officer.

— Hon. J. F. Hale, Judge. The judgment in this case was not void nor voidable, and should not have been set aside, for the following reasons: (1) Because such judgment may at any time be amended under the statute of jeofails. (2)' Because a judgment in a suit commenced and prosecuted against a dead man who is joined with living defendants is void as to him; but such judgment, however, on that account is not void as to living defendants who were joined with him in the action.

Charles Circuit Court. — Hon. W. W. Edwards, Judge. (1)The judgment of the circuit court is in direct violation of the opinion and mandate of the supreme court in this case. Skimp v. Hombaek, 94 Mo. 35. (2) The defendants are entitled to credit for the accrued rents and profits under their judgment in ejectment in the way of a set-off against the plaintiffs’ claim for improvements. The court erred in refusing to allow the set-off.

— Hon. H. 0». O’Bryan, Judge. (1) The conversation of defendant, Fannie Millar,. with the prosecuting attorney, relative to the prosecution of James Fugate, was incompetent. First. If she advised with him as a public officer, her communications were protected on the score of public policy. 1 Wharton’s Evidence [2 Ed.] sec. 603. Second.

— Hon. J. A. Hockaday, Judge. No exception was taken, or objection saved, to the action of the court in sustaining the motion to quash the indictment, and, hence, the judgment should be affirmed.

— Hon. J. M. Davis, Judge. (1) The indictment described the instrument alleged to have been forged as a note of Wm. R. Hughes. The instrument read in evidence was the note of Hughes and three others. There was a fatal variance. State v. Fay, 65 Mo. 490; Fnglish v. State, 18 Su. 94. Section 4114, Revised Statutes, 1889, has no application. State v. Fay, supra; State v. Horn, 93 Mo”. 190. (2) The court erred in admitting the note in evidence.

Louis City Circuit Court. — Hon. L; B* Valliant, Judge. (1) It is well settled that all advantages, all purchases and all sums of money received by directors in dealing with the property of a corporation belong to it, and the directors must account for the same. Perry on Trusts, sec. 207.

Thompson v. Reno, 12 Mo. 157; Crenshaw v. Creek, 52 Mo. 98; Grady v. McCorkle, 57 Mo. 172; Freeman on Judgments, sec. 303, (2) A widow is entitled to both dower and homestead in the same land, and the assignment of dower cannot affect the right to homestead. Gragg v. Gragg, 65 Mo. 343; Seek v. Sagress, 68 Mo. 68; Kelsay v. Frasier, 78 Mo. Ill; Rogers v. Marsh, 73 Mo. 64; Doane v. Roane’s Heirs, 33 Yt. 650. (3) No new title was created by the partition proceedings.

— Hon. Gr. D. Burgess, Judge. (1) The indictment is defective in not alleging that the depot was a building; it should have not only alleged it was a building, but one of a similar kind to those previously enumerated in Revised Statutes, 1889, section 3526, to-wit: “A shop, store, booth, tent or warehouse.” State v. Bryant, 90 Mo. 331; State v. Gilmore*98 Mo. 206; State v. Arnold, 55 Mo. 89; St. Louis v. Laughlin, 19 Mo. 559; Knox City v. Thompson, 19 Mo.

— Hon. Daniel Dillon Judge. (1) Sophia White had an unimpeachable record title to the premises in dispute. (2) She also had a clear title of adverse possession for twenty years.

Louis County Circuit Cou/rt. — Hon. W. W. Edwards, Judge. (1) The contract was not enforceable since there was no consideration to support it. Mrs. Warren paid no consideration to Mrs. Mreen, and it cannot be. claimed that she entered into the lease or into possession in consequence of the contract, because her own evidence showed that the lease was entered into and possession was taken by her long before this contract was’v executed by the deceased.

Louis Criminal Court. — Hon. J. 0. Nobmile, Judge. (1) The court erred in excluding tlie statements of Mrs. Symons, to defendant at the time she gave him the letter of deceased, -written about February 26 or 27, 1888.

— Hon. C. W. Sloan, Judge. . (1) The demurrer to the evidence should have b en sustained. The engineer, fireman and conductor •of the work train were fellow-servants with Miller, and, if it be true that he was injured through the negligence of any one of these, it was the negligence of a fellow-servant, for which the defendant is not liable. Higgins v. Railroad, 104 Mo. 413; Schaub v. Railroad, 16 S. W. Rep. 924; Corbet v. Railroad, 26 Mo.

— Hon. T. A. Gill, Judge. (1) The plaintiff failed to establish by evidence-that the servants of the defendant running and managing the construction train failed to warn the men at work on its track of the approach of the train, as-charged in the petition. The only evidence produced was the negative statement of men who were not. expecting a train, and whose attention was engrossed in their labor. It was not sufficient to entitle the-plaintiff to go to the jury.

— Hon. Field, Judge. Richard Action by Katie Dixon, widow, for damages for the death of Charles Dixon. Defendant had judgment under an instruction of the court. Plaintiff appeals. The following statement was made by Bakclay, J.: Plaintiff has appealed from a judgment for defendant in an action for the negligent killing of her husband. No point arises on the pleadings.

— Hon. John E. Ryland, Judge. (1) The court below committed error in using the term “presented” in the third instruction given for the state. The term presented, as applied to commercial paper, has an accepted and defined legal interpretation — means to present to bank on which it is drawn. (2) The court below committed error resulting in defendant’s conviction in giving instructions for •the state, numbered 9, 10 and 11.

Louis Court of Criminal Correction. (1) The information states a sufficient case under the statute. The words of the statute are broad enough to cover the bitters of the Harter Company. Wild cherry bitters are not only stated in the information to be a beverage, but certainly must be classed as such under any conceivable definition of the term. They come not only within the letter of the act, but within its spirit and are entitled to its protection.

— Hon. M. Oliver, Judge. (1) The court did not err in overruling defendant’s plea to the jurisdiction, and his motion in arrest. The presumption will be indulged that G-reene county had the necessary population. A law will, not be declared to be unconstitutional unless it appears to be so beyond all reasonable doubt.

— Hon. R. H. Field, Judge. (1) Warden acted under the authority and with the knowledge of the company, and without the knowledge or authority of the bank. The former should be bound, tbe latter not. He could not and did not bind the bank. Ins. Co. v. Hope, etc., Co., 8 Mo. App. 408; McDonald v. Wagner, 5 Mo. App. 56; Seev. Smith, 84 Mo. 304; Morawetz on Corporations, sec. 528; N. Y., etc., Co. v. Ins. Co., 14 N. Y. 85; Wardell v. Railroad, 103 U. S. 651.

— Hon. James G-ibson, Judge. (1) The court should have directed the jury to find for the defendant. Huffman v. Railroad, 78 Mo. 50; Wood on Master & Servant, sec. 419, p. 800; Zwmwalt v. Railroad, 35 Mo. App. 661. The burden of showing incompetenoy on the part of Clark, and notice of this fact to defendant, rested on plaintiff.

<p>Appeal: FINAL judgment. A judgment appointing commissioners to appraise and admeasure a homestead is not a final one, and an appeal therefrom will not lie.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) It is clear that the preponderance of the ■evidence in favor of the defendant in this case is so great as to imply partiality, prejudice or misconduct on the part of the jury. Spolm v. Railroad, 87 Mo. 74. (2) Under the evidence in this case the plaintiff ought not to recover, because the accident was caused by one ■of the perils of the service assumed by him when he ■entered the defendant’s employ.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The city of St. Louis holds Forest Park for the beneficial enjoyment of the entire body of its citizens and the public, and any diversion to other than legitimate park purposes is illegal.

Louis City Circtdt Court. — Hon. James A. Seddon, Judge. (1) The damages awarded by the jury were excessive, and not warranted by the evidence. 2 Sedgwick on Damages, p. 541, note 8; Parsons v.. Railroad, 94 Mo. 286, 300. (2) The subject of damages was not properly placed before the jury. Railroad v. Weldon, 52 111. 290; 3 Sutherland on Damages,, p. 282.

— Hon. Richard-Field, Judge. (1) In construing the will in this case, the intent of the testator must govern, and that intent must be-ascertained from the whole will, taking into consideration the situation of the testator, the objects of his bounty and the circumstances surrounding him at the time the will was drawn. Nichols v. Boswell, 103 Mo. 151.

Louis City Circuit Cotirt. — Hon. Jacob Klein, Judge. (1) It clearly appears that Kaut obtained the money from Grerdemann upon Kaut’s repeated and urgent solicitations and assurances that Mrs. G-erdemann “would not lose a cent; that be was going'to sell bis property,” etc. (2) Tbe theory of the plaintiffs that tbe deed executed to August Gerdemann was intended simply to establish a conduit through which the title should pass to Mrs. Kaut is not borne out by the form of the…

Thomas H. Bacon, Judge. (1) Under the charter, constitution and by-laws of the respondent association, Lewis W. Bunch had no-power to designate David W. Bunch as his beneficiary,, because said David was neither the widow, orphan,, heir or devisee of Lewis. The contract between an association like the one at bar and its members is to be found in its certificate, if one be issued, taken in connection with the constitution and by-laws of the society.

— Hon. Richard Field, Judge. (1) The court erred in granting instruction, numbered 2, for defendant. First. It is a mere abstract proposition of law, not applicable to the evidence and particular case made by the pleadings. Huffman v. Hacldey, 34 Mo. 277; Turner v. Loler, 34 Mo. 461. “The proper province of an instruction is to submit questions of fact, not propositions of law. ’ ’ Per Black, J., in Albert v. Besel, 88 Mo. 153. Second.

— Hon. E. L. Edwards, Judge. (1) The circuit court erred in sustaining the demurrer to the indictment. The indictment is founded upon section 3480 of the Revised Statutes of 1889. It follows the indictment heretofore approved by this court in the case of State v. Meinhart, 73 Mo. 562. See also ease of State v. Smith, 80 Mo. 516.

Lotcis Criminal Cov/rt. — Hon. J. L. Thomas, Judge. (1) The form given in section 3826, Eevised 'Statuses, 1889, under which this indictment is framed, -must be declared unconstitutional. State v. Clay, 100 Mo. 571. The indictment does not follow the statutory form. (2) The indictment erroneously charges a number of separate and distinct offenses in one count, to-wit, “to cheat and defraud.” First.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The plaintiff became seized to her own use of the property in controversy on the fifteenth day of November, 1881, by virtue of the deed of M. Dwight Collier to her, delivered at that date. First.

— Hon. M. Oliver, Judge. (1) Revised Statutes, 1889, section 3530, enumerates several distinct offenses which cannot he charged in one count. (2) The indictment is insufficient as one charging an attempt to commit the crime of robbery. The indictment is sufficient. R. S., sec. 3940; State v. Hayes, 78 Mo. 307; State v. Mills, 88 Mo. 417; State v. Frcmh, 103 Mo. 110; 2 Bishop on Criminal Procedure, secs. 86-93.

— Hon. Joseph Cravens, Judge. (1) The court should have instructed on manslaughter. State v. Branstetter, 65 Mo. 149; State v. Johnson, 76 Mo. 127; State v. Bunn, 80 Mo. 689; State v. Wilson, 98 Mo. 440. - (2) The court erred in all the instructions given in the cause. All the instructions asked by defendant should have been given.

— Hon. John E. Evland, Judge. (1) The counts of the indictment were repugnant; though based on the same transaction, there could be but one conviction, and the court erred in overruling defendant’s motion requiring the state to ■elect, made before the trial was begun. Nicholas v. State, 5 S. W. Eep. (Tex.) 239; People v. Parhe, C. 0. 154; Bishop on Statutory Crimes, secs. 478-494; 1 Wharton’s American Criminal Law [4 Eev.

— Hon. John A. Hocicaday, Judge. (1) The court committed error in not sustaining the first motion to quash the indictment; it was error to permit the names of the witnesses to he indorsed thereon after it was returned into court. State v. Boy, 83 Mo. 268; State v- O’Day, 89 Mo. 559. So the second motion should have been sustained; it was not competent to permit the successor in office of the prosecuting attorney who wrote the indictment to indorse names of witnesses thereon.