Volume 109 — Missouri Appeal Reports

<p>PRACTICE: Failure of Proof. Where plaintiff, in an action for damages on account of personal injuries, received hy a collision with a street car, charged in his petition that the-accident was caused by the negligence of the defendant in failing to observe the regulations of a city ordinance, but failed to introduce the ordinance in the evidence, and the trial court instructed the jury on the theory that the ordinance was in evidence, though there was nothing to show that the defendant recognized the ordinance was in evidence, a judgment in favor of the plaintiff must be reversed and remanded by the appellate court.</p>

<p>1. FRAUD: Cancelling Contract: Promissory Statements. False representations made during negotiations for a contract -which show on their face that they are not intended as statements of facts, hut as expressions of opinion or expectations as to future occurrences, do not amount to fraud which would authorize a cancellation of a contract.</p> <p>2. CONTRACT: Construction. Where plaintiff and defendant entered into a contract whereby the defendant agreed to employ plaintiff at a salary of $25 per week with a commission of 5 per cent on all business turned in, not to exceed $5,000 from any firm or individual in one order, with a provision that the compensation, including salary and commission should equal the amount of $50 per week and settlement on that basis to he made every three months, the minimum compensation for the plaintiff’s services under the contract was $50 per week.</p>

St. Louis City Circuit Court.— Hon. O’Neill By an, Judge. (1) Upon the admission of defendant that she owned $15,000 unencumbered real estate, held $22,500 in deeds of trust, exclusive of her one-half interest in $15,000 deed of trust pledged to secure loan of $6,000 and held $6,000 in school and street railway bonds, hearing 6 per cent interest, she is shown to have ample means to live and conduct her defense.

<p>Appeal from St. Louis City Circuit Court. — Hon. O’Neill Ryan, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. James R. Kinealy, Judge.</p> <p>(1) No notice of his intention to claim a renewal of the lease in question having been given by the defendant to the plaintiff, the renewal did not take effect, notwithstanding defendant remained in possession. Beller v. Robinson, 50 Mich. 264; Cooper v. Joy, 105 Mich. 375; Bradford v. Patton, 108 Mass. 153. A covenant to renew does not give the tenant the right to retain possession after the end of the original term. Finney v. Cist, 34 Mo. 303. (2) The quitting of the premises by defendant and the lease of the same thereafter by plaintiff to Cavanaugh for a term beyond that which defendant was bound to keep them, had he availed himself of his right to renew the lease; constituted an eviction of the defendant by plaintiff and operated as a surrender of the premises by operation of law, which discharged defendant entirely on his covenant to pay rent, if any such covenant was then in force. Huling v. Roll, 43 Mo. App. 234; Matthews v. Tobbener, 39 Mo. 115; Hudson v. Jones, 79 Mo. 496; Holmes v. Guion, 44 Mo. 164; Duffy v. Day, 42 Mo. App. 638; Churchill v. Lammars, 60 Mo. App. 234; Robertson v. Winslow, 99 Mo. App. 546, 74 S. W. 442; Clemens v. Bloomfield, 19 Mo. 118; Koenig v. Brewery Co., 38 Mo. App. 18; Squire v. Brewery Co., 90 Mo. App. 462.</p> <p>(1) Holding over by lessee operates as' an election to extend the term. 18 Am. & Eng. Eney. of Law (2 Ed.), p. 690, citing Montgomery v. Hamilton Co., 76 Ind. 362; Bright v. McQuat, 40 Ind. 521; Hoiley v. Young, 66 Maine 520; Blumenberg v. Myres, 32 Cal. 93; Stone v. St. Louis Stamping Co., 155 Mass. 267; Kramer v. Cook, 7 Gray (Mass.) 550; Delashman v. Berry, 20 Mich. 292; Schroeder v. Gemeinder, 10 Nev. 355; Clarke v. Merrill, 51 New H. 415; Mershon v. Williams, 62 N. J. L. 779; Crouch v. Trimby Shoe Co., 83 Hun (N. Y.) 276; Clendenning v. Lindner, (N. Y. Super. Ct. Gen. T.) 9 Misc. 682; Yoege v. Ronalds, 83 Hun 114; McBrier v. Marshall, 126 Pa. St. 390; Harding v. Seeley, 148 Pa. St. 20; Bateman v. Maddox, 86 Texas 546. In Missouri it is well-settled law. Ins. Co. v. Banks, 71 Mo. 58; Curtis v. Sturgis, 64 Mo. App. 535; Lewis v. Perry, 149 Mo. 256, 50 S.' W. 821. (2) Lessee should have surrendered possession of thepremises, in order to escape damages. Ins. Co. v. Bank, 71 Mo. 58. (3) Plaintiff did not release defendant from defendant’s obligation to pay damages resulting from breach of the lease. Prentice v. Wame, 10 Mo. 601; Goodfellow v. Noble, 25 Mo. 60; Livermore v. Eddy’s Admr., 33 Mo. 546; Huling v. Roll, 43 Mo. App. 234.</p>

<p>1. RES JUDICATA: Issues Embraced: Cancellation of Contract. The plaintiff in the former suit had entered into a written contract with the defendant whereby the defendant was to render certain services for the plaintiff for a compensation named. The suit was brought by the plaintiff to rescind the contract on the ground that it was obtained by fraud. Defendant’s answer alleged that he had performed meritorious services under the contract for which the plaintiff refused to compensate him. The court granted the relief prayed in the petition, cancelling the contract without a requirement that plaintiff should compensate the defendant for the alleged services rendered or put him in statu quo. Held, that the decision embraced the issue whether the plaintiff owed the defendant anything, since the relief could not properly have been granted otherwise.</p> <p>2. -: Foreign Courts Versus Domestic Courts. Where, in an action by attachment and garnishment, on the issue between the plaintiff and the garnishee as to whether the garnishee owed the defendant, the evidence showed a former judgment in this State determining that the garnishee did not owe the defendant and also a judgment in the State of New Jersey, subsequently rendered, which determined the garnishee did owe the defendant, the former judgment of the court in this State was properly taken as determining the issue.</p> <p>3. -: -: Comity. Neither the federal constitution nor comity required the court in this State, before whom the proceeding was pending, to accept the foreign decision on the identical issue which had been previously adjudicated here.</p> <p>4. -: -: Same issue Pending in Foreign Court. Although the attachment and garnishment proceeding was pending before the action in New Jersey was determined, it was not incumbent upon the garnishee to plead the garnishment in defense of the New Jersey suit for the purpose of having that suit await the issue of the garnishment. She had a right to assume that there would be no judgment against her in this garnishment proceeding, since there had been a previous judgment determining that she owed nothing, and the garnishment proceeding would have been no defense to the action in New Jersey unless there was danger of such a judgment.</p>

— New. Argus Cox, Judge. (1) A receiver should not have been appointed. There was no foundation laid for such appointment in the allegation of the petition, nor in the subject-matter of the action nor in the facts adduced in the evidence. Chemical Works v. Nemnich, 169 Mo. 397. (2) There was no res which was the subject-matter of litigation between plaintiff, Lamont, and the defendant company.

— Hon. James Gibson, Judge. (1) Appellant contends that this instruction is erroneous and fatally prejudicial for the reason that it told the jury that if the note and mortgage were made and delivered to interpleader on December 26, 1895, then they should find for interpleader; thus entirely eliminating from the consideration of the jury the question as to whether or not the note was fraudulent and void, whether it was inflated and whether it had been paid and the mortgage…

— Hon. S. C. Douglass, Judge. (1) The manifest intention of the Legislature by this statute was that in this class of cases the question of interest as damages should be for the jury and not for the court. 121 Mo. 41; Hawkins v. Brick Co., 63 Mo. App. 68; Wheeler v. McDonald, 77 Mo. App. 213; Vermillion v. LeClare, 89 Mo. App. 64.

— Hon. Nat. M. Shelton, Judge. Respondent’s point is not well taken. His authorities have no application to an involuntary nonsuit, upon which final judgment can not be entered. The very purpose of an involuntary nonsuit is to preclude a final judgment. Chouteau v. Rowse, 90 Mo. 191; Roeder v. Shryock, 61 Mo. App. 485. There was no final judgment rendered in the case and no appeal can lie. Sperling v. Stubblefield, 83 Mo.

— Hon. James E. Hazell, Judge. (1) A warranty in an insurance policy on the assessment plan must be strictly complied with. Held: that this was a breach of tbe warranty. Aloe v. Life Assn., 147 Mo. 561; Ins. Co. v. France, 91 H. S. 510.

— Hon. Samuel Davis, Judge. (1) We submit tbat tbe first and seventh counts were perfect and the motion was correctly overruled. Bank v. Lexington, 74 Mo. 104; Gas Co. v. St. Louis, 86 Mo. 498. However, we submit that both counts are good. (2) Instruction 1 was correct. These ordinances were pleaded in terms in the petition and specifically admitted in the answer.

— Hon. Nat. M. Shelton, Judge. The instructions referred to in the petition are as follows: “The court instructs the court sitting as a jury that if the note and deed of trust admitted in evidence was executed by the Williams Wagon Company and delivered to plaintiff Fields to secure the payment of a valid debt of thirty-five hundred dollars ($3,500) due from said company to said plaintiff, and that defendant Jobson purchased the property subject to said deed of trust with…

— Hon. A. D. Burnes, Judge. (1) The master is bound to use ordinary care in providing and maintaining a reasonably safe place in which the servant may do his work. Barrows on Negligence, p. 90; Scott v. Springfield, 81 Mo. App. 312; Devore v. Railway, 86 Mo. App. 429; Minnier v. Railway, 167 Mo. 99; Cardwell v. Railroad, 90 Mo. App. 31; Herbert v. Boot & Shoe Co., 90 Mo. App. 305; Nash v. Dowling, 93 Mo. App. 156; Zellers v. Water & Light Co., 92 Mo. App. 107.

<p>Appeal from Polk Circuit Court. — Hon. Argus Cox, Judge.</p> <p>(1) The petition states facts sufficient to constitute a cause of action. Light Co. v. Miller, 30 N. E. 23; Railroad v. Hatton Co., Can. S. C. 716. (2) There is no misjoinder of parties plaintiff. Lilly v. Tobbein, 103 Mo. 488; Newmeyer v. Railroad, 52 Mo. 83; Wagner v. Meety, 69 Mo. 150; Bobb v. Bobb, 76 Mo. 422. (3) The prevention of a multiplicity of suits is a distinct ground of equitable relief. Biddle v. Ramsey, 52 Mo. 159; High on Injunction (2 Ed.), sec. 700. (4) The petition must "be measured by the state of affairs existing at the time of the institution of the suit. The word bonus does not imply a gift. Kennicott v. Supervisor, 16 Wall. (U. S. S. Court R.), 452; Book 21 L. C. Co. Ed., p. 322; Anderson’s Law Dict., 130.</p> <p>(1) Representations, or a parol agreement, to permanently maintain a canning factory at Humans-ville necessarily implied an agreement not to be performed within one year, and was, therefore, within the statute of frauds and void, and the doctrine of part performance has no application to this provision of the statute. R. S. 1899, sec. 3418; Sharp v. Rhiel, 55 Mo. 97; Briar v. Robertson, 19 Mo. App. 66; Schultz v. Tatum, 35 Mo. App. 136; Beiler v. Devoll, 40 Mo. App. 251. (2) The alleged agreement between the defendants and the subscribers to the bonus, by which each subscriber paid a specified amount, and defendants .represented that they would build, operate and maintain the canning factory, if a contract at all, was a separate contract between the defendants and each subscriber to the bonus. Plaintiffs, therefore, cannot bring a joint action for a violation of said contract, or for the recovery of their several subscriptions. Davis & Rankin v. Hendrix, 59 Mo. App. 444. (3) As each subscriber paid only one specified amount- there is nothing of which a court of equity can take an accounting. 3 Pom. Eq., sec. 1421 and note; Wetmore v. Crouch, 55 Mo. App. 441. (4) The only legal relation between each subscriber to the bonus and the defendants was created by the distinct, separate and voluntary act of each subscriber, acting solely for himself. (5) Plaintiffs have a complete and adequate remedy at law. Besides, they must first establish their right at law and exhaust their legal remedy. Humphreys v. Milling Co., 98 Mo. 542; Woolfolk v. Kemper, 31 Mo. App. 421; Spitz v. Kerfoot, 42 Mo. App. 77; Crim v. Walker, 79 Mo. 335; Almut v. Leper, 48 Mo. 320; Merry v. Fermon, 44 Mo. 518. (6) Each plaintiff, if entitled to recover at all, is entitled only to a money judgment for damages. Issues of fact in an action to recover money only must he tried by a jury. Briggs v. Railroad, 111 Mo. 168.</p>

<p>Appeal from Jackson Circuit Court . — Hon. S. C. Douglass, Judge.</p>

— Hon. W. W. Graves, Judge. (1) There can he no costs except those expressly allowed by the statute, which must he strictly construed. Steele v. Wear, 54 Mo. 531; Shed v. Railroad, 67 Mo. 687; Sinclair v. Railroad, 74 Mo. App. 500; Houts v. McCluney, 102 Mo. 13; Thompson v. Elevator Co., 77 Mo. 520; St. Louis v. Meintz, 107 Mo. 611; Hoover v. Railroad, 115 Mo. 77; State ex rel. v. Oliver, 116 Mo. 188; State ex rel. v. Seihert, 130 Mo. 202.

<p>LIFE INSURANCE: Lapsed Policy: Surrender Endowment. On a review of tile evidence, the judgment of the trial court allowing a demurrer to the evidence is affirmed.</p>

— Hon. W. B. Teasdale, Judge. (1) The first instruction given by the court for the plaintiff was a correct measure of the city’s duty. And when read with the second instruction for plaintiff, and the fourth and fifth given for defendants the-“condition of reasonably safety” was limited to mean the placing of lights or barriers by either of them,, even though removed before the accident.

— Hon. John P. Butler, Judge. (1) The circuit court, erred in overruling plaintiff’s objection to the introduction of any evidence in support of the allegations of the second count of defendant’s answer. Cohn v. Lehman, 93 Mo. 583; Nelson v. Brodhack, 44 Mo. 596; McCormick v. Kaye, 41 Mo. App. 263; Crowder v. Searcy, 103 Mo. 97; Rutledge v. Railroad, 110 Mo. 312; Roberts v. Railroad, 43 Mo. App. 287; Soap Works v. Sayers, 51 Mo. App. 310.

— Hon. John P. Butler, Judge. (1) The verdict in this case is against the weight of evidence. The refusal of the court to set it aside, was error. Hemetreich v. Corlas, 24 Mo. App. 264; Spooner v. Railway, 20 Mo. App. 403; Wright v. Railway, 20 Mo. App. 481; Brewing Co. v. Bodman, 12 Mo. App. 573; O’Donnell v. Railway, 7 Mo. App. 190; Taylor v. Fox, 16 Mo. App. 527; Walton v. Railway, 49 Mo. App. 620; Price v. Evans, 49 Mo.

— Hon. Henry M. Ramey, Judge. (1) All payments by cheek are conditional payments. So all receipts and acquittances given for checks are conditional receipts or acquittances. There is nothing in the policy of the law, and especially nothing in the statute involved, which gives to a tax collector any rights superior to those of all other persons who accept checks. A check may be, as against the payee, countermanded at any time before it is paid.

— Hon. Henry M. Barney, Judge. (1) Upon the undisputed evidence the judgment should have been in favor of defendant. The insured, by drawing all of his wages on June 28th, leaving nothing in the paymaster’s hands with which to pay the second premium, elected to treat the insurance as at an end and it would be unconscionable to allow plaintiff to derive any benfit from the policy in view of the express provisions of the contract and the conduct of insured.

—Hon. Wm. L. Jarrott, Judge. (1) The agent who solicited this insurance countersigned and delivered the policy and collected the premium, had authority to make a waiver and under the facts in this case waived the “iron-safe clause” and keeping of hooks. Bush v; Ins. Co., 85 Mo. App. 155; Trust Co. v. Ins. Co., 79 Mo. App. 362; RossLangford v. Ins. Co., 97 Mo. App. 87; Ormsby v. Ins. Co., 98 Mo. App. 371; Rickey v. Ins. Co., 79 Mo. App. 485; James v. Ins. Co., 148 Mo. 1.

— Hon. John P. Butler, Judge. (1) Sec. 1105, Revised Statutes 1899, is a penal statute, and every fact necessary to be proven to bring tbe case within terms of tbe statute must be alleged. Manz v. Railroad, 87 Mo. 278; R. S. 1899, secs. 3294-5. (2) In tbe absence of an allegation to tbe contrary tbe law presumes that tbe fences inclosing a field are lawful fences, as it is presumed that everyone performs bis engagements and duties. McCallister v. Ross, 155 Mo. 87. (3).

— Hon. Samuel Davis, Judge. (1) It appears upon the face of plaintiffs ’ petition herein that Edward Butts was the proprietor of certain lands adjacent to defendant company’s right-of-way in Lafayette county, and that the said lands of Butts abutting said right-of-way are “enclosed fields.” It is further alleged that plaintiffs’ cattle in question escaped from plaintiffs ’ fields and passed through and across the said enclosed field of said Butts and thence onto the railroad…

<p>1. MUNICIPAL CORPORATIONS: Defective Street: Evidence: Contributory Negligence. On the evidence, it is held the case was properly sent to the jury on the question of defendant’s negligence and plaintiff’s contributory negligence.</p> <p>2. -: Negligence: Public Street. The evidence warranted the legitimate inference that the street in question was a public . street.</p>

— Hon. Gallatin Craig, Judge. (1) The court erred in overruling the plaintiff’s motion to dismiss the defendant’s appeal for the reason that defendant failed to file bond in the time required by law. Sec. 5929, R. S. 1899; secs. 4059 and 4060, R. S. 1899; Devore v. Staeckler and Sparfield, 49 Mo. App. 547.

<p>Appeal from Schuyler Circuit Court. — Hon. Nat M. Shelton, Judge.</p> <p>(1) The widow had no homestead in this tract of land. Thurston v. Maddox, 6 Allen 427; Wolf v. Fleischacker, 5 Cal. 244; Reynolds v. Pixley, 6 Cal. 165; Kellesberger v. Copp, 6 Cal. 565; Ward v. Huhn, 16 Minn. 159; West v. Ward, 26 Wis. 580; Lozo v. Sutherland, 3 Mich. Law 218; Yentress v. Collins, 28 La. Ann. 783. (2) The widow had quarantine. Waller v. Mardus, 29 Mo. 27; Orrick and wife v. Pratt, 34 Mo. 226; Smith v. Stephens, 164 Mo. 415; Miller v. Talley, 48 Mo. 503; Whaley v. Whaley, 50 Mo. 582; Brown v. Moore, 74 Mo. 633; Gentry v. Gentry, 122 Mo. 202; Roberts v. Nelson, 86 Mo. 21; Melton v. Fitch, 125 Mo. 281; Carey v. West, 139 Mo. 176; Jones v. Manly, 58 Mo. 559. (3) This quarantine or possessory right is assignable. Stokes v. McAllister, 2 Mo. 163; Kam v. McCowan, 55 Mo. 181; Jones v. Manly, 58 Mo. 559-564; Brown v. Moore, 74 Mo. 633; Melton v. Fitch,. 125 Mo. 281-290; Carey v. West, 139 Mo. 146-176. (4) The assignee became possessed of all the rights the widow had in her quarantine and all incidents belonging to it prior to its transfer. Same authorities as in No. 3. (5) The petition states no cause of action. Young v. Downey, 145 Mo. 261; Hynes v. Ecker, 34 Mo. App. 650.</p> <p>(1) The conveyance by the widow, Jane Gorman, does not defeat the right of the minor children to recover the value of the rents and profits of the homestead during their minority. Phillips v. Presson, 172 Mo. 24; Hufschmidt v. Gross, 112 Mo. 649. (2) The head of a family may have a homestead in lands held in common. Clark v. Thias, 173 Mo. 628. (3) The probate court had jurisdiction of the demand. Hoffman v. Hoffman, 126 Mo. 486.</p>

— Hon. Nat M. Shelton, Judge. (1) Whore personal property is purchased to he used for a particular purpose, known to the vendor, and the buyer does not inspect tbe goods, but trusts to tbe judgment or skill of tbe seller, there is an implied warranty that tbe goods will be reasonably fit for that purpose. 4 Benj. Sales (Bennet’s 7 Am.

— Hon. W. B. Teasdale, Judge. (1) Proof upon the trial that respondent was a partnership and not a corporation, is not proof of a material allegation of the petition, hut in fact a disproof thereof. R. S. 1899, sec. 572; R. S. 1899, sec. 746.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. According to the evidence on both sides, the account sued upon represents money received by defendant from Samuel Weiermueller in 1889, and which he promised to repay to Weiermueller. Before payment, Weiermueller assigned the debt to his wife and died. Thereafter, defendant made payments on the assigned debt to her, and refused to pay more.

— Hon. Wm. A. Davidson, Judge. (1) The record of the council is the journal of the council proceedings which the clerk is required by law to keep. This journal should contain a minute of every act of the council. R. S. 1899, secs. 5772 and 5774. In so far as it does so it is competent proof and the only competent proof of what the council did. It will be conclusively presumed that the council did just what its journal says it did, no more and no less.

Louis City Circuit Court.—Hon. M. D. Wood, Judge. STATEMENT.

<p>1. CARRIERS OF PASSENGERS: Street Railways: Boarding Car. It is the duty of a street railway company to stop its ears for a period reasonably sufficient to afford passengers an opportunity to board them, in the exercise of ordinary diligence, and, in case of age and apparent physical infirmity of a passenger, with due regard for them.</p> <p>2. -: Boarding Car: Premature Starting: Contributory Negligence. In an action by a passenger for injuries received while attempting to board defendant’s car, on account of the premature starting of the car, before he had time to board it, where the evidence showed that, after waiting for a woman and child to precede him, he attempted to get on after the car was again in motion, it was a question for the jury whether he was guilty of contributory negligence in attempting to board the car under the circumstances.</p> <p>3. -: -: -: -. And where in such case the conductor seized the passenger’s arm in the attempt to help him on the car, and the passenger, being unable with such assistance to get on, first directed the conductor to stop the car and, when the conductor failed to do so and the speed of the car was increasing, asked the conductor to release his hold upon his arm, when he was thrown to the ground and in- ■ jured, it was a question for the jury whether he was guilty of contributory negligence.</p> <p>4. PRACTICE: Instructions. Instructions in a case are to be taken as a whole and it is not necessary that a single instruction should cover the whole case.</p> <p>5. -: -: Inconsistent Theories. In an action.-for injuries caused to a passenger by the premature starting of the ear before he could board it, a specification of negligence in starting the car before plaintiff had a reasonable opportunity to get on and a specification of negligence in not stopping and so avert the peril to plaintiff in being dragged while clinging to the car, are not in themselves inconsistent.</p> <p>6. ——: Contributory Negligence: Last Chance. And in such , case, an instruction based upon the last chance doctrine was proper.</p> <p>7. INSTRUCTION: Comment Upon Evidence. An instruction which emphasizes and renders conspicuous for the consideration of the jury parts of the testimony should be refused as a commentary upon the evidence.</p> <p>8. MEASURE OF DAMAGES: Loss of Time. In an action for damages on account of personal injuries, where the evidence showed that plaintiff had retired from business and had no definite occupation, it was improper to permit recovery for loss of time.</p>

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. STATEMENT. A car belonging to the St. Louis Transit Company ran over and killed Prank Hagan, at that time, the husband of Annie Hagan. The accident occurred March 1, 1902, on Pine street in the city of St. Louis.

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. (1) The defendant claims under the Hess mortgage and as an individual creditor of Hess. Such claim is worthless and such mortgage is utterly void as to the firm creditors whether the firm is solvent or insolvent, hut especially when insolvent (as here).

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) (a) The petition charges, under the common law, as a common carrier, (h) Also, that defendant “so carelessly and negligently conducted itself in the premises” that the injury occurred. It was not claimed that defendant became liable as insurer by the terms of the contract of employment, but by reason of its being a common carrier it became such.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The contract sued on and sought to he enforced is infected with champerty. Held: that in order to make the flexible tubing come under the paragraph providing a duty of 35 per cent ad valorem, or that providing a duty of two and one-half cents per pound, “it is essential that the tubes or pipes shall be made of copper or iron respectively.” Plaintiff also showed that he had a test case on the protest of Larzelere…

— Hon. Henry G. Riley, Judge. (1) The court erred in overruling the demurrer to the evidence, offered by defendant, at the close of plaintiff’s testimony. It was incumbent on plaintiff to show that the body of water drained was a natural stream, or natural body of water as distinguished from surface water. For if it were surface water, defendant had the right to drain it, even though in so doing the plaintiff should suffer injury.

<p>REFERENCE: Findings of Referee. The finding of facts by a referee in a case at law stands as the verdict of a jury; and where such finding is supported by substantial evidence, and there are no controverted legal questions in' the case, the judgment of the trial court in conformity with the finding will be affirmed.</p>

Louis City Circuit Court.—Hon. James R. Kinealy, Judge. (1) Tlie judgment and all the proceedings before the justice of the peace in the lien case were improperly admitted in evidence1 — they were improperly in evidence for any purpose, for these reasons: (a) neither Darlington nor either of his partners were parties to them; as to them it was res inter alios acta. Fire Clay Works v. Ellison, 30 Mo. App. 67; Griffith v. Gilliam, 31 Mo. App. 38; State ex rel. v. Drew, 43 Mo.

Louis City Circuit Court. — Hon. W. B. Douglas, Judge. (1) Bespondent’s instruction numbered 1 was correct. If the plaintiff, before the time for his performance of the contract arrives, finds the defendant refusing or failing to perform his part of the contract in a material matter, the plaintiff is excused from performance and may abrogate the contract and sue at once for damages. Halpin v. Manny, 57 Mo.

Louis City Circuit Court. — Hon. James B. Kinealy, Judge. (1) The petition shows on its face that the provision of the award and decree confirming the same therein pleaded, to-wit: “hut that plaintiff should, however, pay, in any event, at least $412 per year for said power and service,” is outside the terms of the submission, and therefore void.

Appeal'from St. Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) None of the language of the defendant charged in the petition was actionable at common law. “Words, to be actionable, when spoken of a person not in any office, trade or profession, must imply the imputation of an offense which would subject the offender to some infamous crime.” Nelson v. Musgrave, 10 Mo. 648.

<p>1. CONTRACT: Cancellation for Violation: “Immediately.” Where a contract of agency authorizes the principal to terminate the same immediately, without notice on violation of its terms by the agent, the term “immediately” means within a reasonable time.</p> <p>2. -: -: Reasonable Time. Where an insurance company, having such a contract with its agent, requested that the agent make a report upon the number of policies he was holding, as provided in the contract, the agent was not, as a matter of law, entitled to twenty-four hours in which to make such report before the company could terminate the contract on account of his failure to report.</p>

Louis City Circuit Court. — Hon. R. M. Foster, Judge. (1) Before a broker can recover compensation for effecting a sale of property, he must show that he found and procured a purchaser who was willing and able to purchase the property upon the exact terms proposed by his principal. Waren v. Cram, 71 Mo. App. 640; Yoder v. White, 75 Mo. App. 155; Tooker v. Duckworth, 80 S. W. Rep. 963; McDonnell v. Stephenson, 77 S. W. 766; Reiger v. Reiger, 29 Mo.

— Hon. E. R. McKee, Judge. STATEMENT. The petition, omitting caption, is as follows: “Plaintiff for cause of action states that he was plaintiff in an action against George E. Llewellyn and others, No. 10143, in the circuit court of Clark county, Missouri, which said, action was pending and for trial at the October term of said court; that said action was instituted by plaintiff for the purpose of partitioning certain real estate belonging to the parties to the said action.…

— Hon. Henry C. Pepper, Judge. (1) There is no estoppel in this case. Plaintiff objected to the building of the dam as soon as it was started. He served a notice individually, objecting to the building of the dam, and also as road overseer to prevent blockading the public road. Simpson v. Railroad, 145 Mo. 81, 46 S. W. 739. (2) A dam erected without complying with chapter 113 of the Revised Statutes of 1899, entitled “Mills and Milldams” is a public nuisance.

— Hon. Edwin R. McKee, Judge. (1) No breaches of the conditions of the bond are sufficiently assigned; the only ones attempted are (1) Failure to prosecute attachment with effect. (2) To pay damages and costs to the defendants. The petition shows the property was sold at judicial sale in vacation ; no intimation that it was not fair, or that it did not sell for all it would fairly bring on the market.

— Hon. Edwin R. McKee, Judge. (1) There was no evidence on which to submit the issue of new agreement and release of the notes, (a) There was no allegation of an intention or agreement of plaintiff to surrender the notes without payment, (b) All of defendant’s allegations in the answer and testimony to that effect was in the statute of frauds, pleaded in the reply, objected to on the trial on that ground, and asked to be excluded and withdrawn from the jury by instructions.

<p>Appeal from Warren Circuit Court. — Hon. Houston W. Johnson, Judge.</p>

— Hon. W. N. Evans, Judge. The action of the court in granting a new trial on the amended motion, after it had overruled the original, was not only erroneous but wholly void. Thompson on Trials, section 2727, and cases there cited. In any event, the matters passed upon in the original motion had become res adjudicata.

— Hon. David H. Eby, Judge. (1) The interest of the insured in the property is a matter of first importance to the insurer. “If small interests can be covered by large insurance, it is easy to see the evil consequences which would result.” Harness v. Ins. Co., 62 Mo. App. 248. Interest and title are not synonymous. Gibb v. Ins. Co., 61 N. W. 137.

<p>Appeal from Pike Circuit Court.— Hon. David H. Eby, Judge.</p> <p>The court erred in giving instruction at the instance of defendant. Kostuba v. Miller, 137 Mo. 161, 38 S. W. 946; Long v. Martin, 152 Mo. 668, 54 S. W. 473; Farley v. Stroeh, 68 Mo. App. 85; Kennedy v. Transit Co., 103 Mo. App. 9, 78 S. W. 77; Chitty v. Railroad, 148 Mo. 78, 49 S. W. 868.</p> <p>STATEMENT.</p> <p>The plaintiff, an attorney at law, instituted this action to recover the reasonable value of legal services rendered to the defendant at different dates from 1886 to 1901, inclusive. The defendant’s husband, James R; Wells, became heavily embarrassed financially and in November, 1886, made a general assignment for the benefit of his creditors. A few days prior to the assignment, most of Wells’ real estate,, compris- ■ ing more than 1200 acres of valuable land and some’' - lots in the town of Clarksville, had been mortgaged. ’ /The defendant, acting under advice from the plaintiff, refused to join in the mortgages. Mrs. Wells owned no property at the time of her husband’s failure except her inchoate right of dower in his real estate; and the benefit accruing to her from the plaintiff’s legal services arose, it is said, from his so utilizing her dower right as finally to obtain title for her to about $15,000 worth of her husband’s realty. To achieve this result, besides the conception of the plan by which it was achieved, many transactions were necessary and numerous conveyances and other details were looked after and performed by the plaintiff. Most of the services were rendered after 1890, but three items are alleged to have been prior to that date. The total, sum demanded as the reasonable value of plaintiff’s services was $2,350. The petition, after stating the business of the plaintiff, alleged that he rendered the services between 1886 and 1901, and that their reasonable value was the sum stated; that the services constituted an open, running and continuous account from the date of the first item to the date of the last one — May, 1901. In the petition an itemized statement of the account appears as follows:</p> <p>“Fannie I. Wells, in account with I. C. Dempsey, Dr.</p> <p>“1886.</p> <p>“To advice and services in saving her interests in the real estate of her husband James R. Wells, in November, A. D. 1886, at the time said James R. Wells made a general assignment for the benefit of creditors. Said real estate consisting of about thirteen hundred acres of land and some town lots, and</p> <p>“1887.</p> <p>“To advice and service in saving the interests of said Fannie I. Wells in said real estate at the time of and in respect to the sale of said land by the assignee of said James R. Wells in January, 1887, $200.</p> <p>“1888.</p> <p>“To advice and service to her interests in said lands and town lots in May, A. D. 1886, at the time of and in respect to suits brought in the Louisiana Court of Common Pleas by James A. Sanderson against said James R. Wells and Parson C. Mackey to set aside a deed for a lot of ground in the city of Clarksville made by said Wells to said Mackey, $100.</p> <p>“1890.</p> <p>“To services in procuring contract and agreement with Elizabeth J. Wells, William Wells, George Wells, Charles Wells and R. P. Wells, in and by which it was agreed and arranged that Elizabeth J. Wells would buy the home farm of said James R. Wells and Fannie I. Wells, consisting of 142 acres at a trustee’s sale under a deed of trust thereon to be thereafter had and to convey the same, together with two hundred acres, being the east part of lot six of Survey 1755; to said Fannie I. Wells, the latter conveying her interest to 111 12-100 acres, the south part of lot four (4) of said survey west of railroad and two hundred acres part of lots four (4) and six (6) of said survey, laying along the east side of said railroad, .and the consummation of said contract and agreement in and by which said Elizabeth J. Wells conveyed by good and sufficient deed to said Fannie I. Wells, in July, 1890, the said home tract of 142 acres, the said 200 acres, east part of said lot 6, in survey 1755; also an island in the Mississippi river, containing about 30 acres, and also for services rendered at the special instance and request of defendant in defending the title to the above described tracts so acquired by defendant from July, 1890, to 1900, $1,500.</p> <p>“1894</p> <p>“To advice and legal services in saving the real estate conveyed to said Fannie I. Wells from being taken by creditors at the time the will of said Elizabeth. Jane Wells, was made in January, 1894, and in June, 1894, when the 133 acre tract was sold under deed of trust made to Orson Lee, $100.</p> <p>“1895.</p> <p>“To legal services and advice in adjusting matters with Elizabeth J. Wells and others in April, 1895, for the purpose of preventing contract above mentioned from being exposed, $100.</p> <p>“1897.</p> <p>“Services in making settlements with Berkley E. Wells, John Middletown and others in May, 1897, by which over $1,500 were saved and the lands of said Fannie I. Wells relieved of the lien thereon for said sum and in saving interest in land bought by Dr. Pharr and the conveyance of 148.30 acres to said Fannie I. Wells by deed recorded in Yol. 115, page 343 and 42 acres conveyed by deed recorded in Yol. 115, at page 209 and the proceeds of lands conveyed by deeds recorded in Yol. 108, pages 258 and 533, $200.</p> <p>“1900.</p> <p>“To value of legal services in making sale of the home farm for defendant of 142 acres to Wm. D. Cummins in February, 1900, $200.</p> <p>“1901.</p> <p>“To legal services in procuring the allowance of a demand for $500 in the Probate Court of Pike county, Missouri, in May, 1901, against the estate of Dr. C. W. Pharr, $50.00; total, $2,350.</p> <p>Immediately following the foregoing statement of the plaintiff’s account the petition contains this paragraph :</p> <p>“Plaintiff states that the charges made for the services for the various items of service and for legal advice given as above set forth are reasonable, and that said services were rendered and such advice given under and by virtue of a contract between the plaintiff. and defendant by which the plaintiff was expressly to look after and attend to all matters affecting the property rights and interests of the defendant during all the time for which charges are made as hereinbefore set out. ’ ’</p> <p>The answer was a general denial and a plea that each item set forth in the petition down to and includ- ■ ing the item dated 1897 had been due, if due at all, more than five years prior to the institution of the action and was barred by the statute of limitations.</p> <p>The plaintiff testified to a distinct contract with the defendant in regard to all services rendered to her during and after the year 1890. His statement is that Mrs. Wells’ title to the land, which had become vested in her by the means .the plaintiff used in her behalf, would not become perfect and unassailable until there had been an adverse possession by her for ten years; that meanwhile her interest was subject to attacks by her husband’s creditors and he was to look after and defend her interests until the title was perfect through adverse possession and at the end of that time she was to pay him for his services. We copy his testimony as to when he was to be paid :</p> <p>‘‘ Q. What was said about your defending her title, what was said between you and Mrs. Wells in 1890? A. At the time of the making of the contract and in reference to those transfers, I explained to her that I could not make that title safe and certain until ten years expired, because it was subject to attack for bad faith upon the part of any of them, as I thought, and it was then agreed between me and Mrs. Wells that I would watch it and make whatever defense I could, if it was attacked, and at the end of the time she would settle with me or as soon as she could dispose of the real estate — any of it. She acquired the title in July, 1890. She disposed of the home place of 142 acres in 1900, ■and the 200 acres of bottom land in 1902, William- D. Cummins purchasing the home place and two other parties whose names I do not recall the bottom tract.</p> <p>‘ ‘ Q. What did Mrs. Wells say in reference to your guarding the title against attack from various sources t What did she say in 1890 when you made your arrangement with her about it? A. She asked me to watch it through and to protect it if I could until the time ran,, the ten years, which I told her it would take to make it safe. I based my idea that it required ten years, as I stated to her, that the good faith of the transaction was subject to attacks from the creditors of her husband, James R. Wells, until the ten year period of limitation would run on those conveyances made to her. I explained to her that while it might possibly be sold, before the ten years ’ limitation had run, to an absolute stranger without any knowledge of the situation or without inquiry into the whole matter; but that it would probably be very difficult to sell it advantageously in any event or for any value.</p> <p>“Q. What, if anything, was said about when you were to be paid for your services? A. Not until the period of time ran when she could dispose of the property to advantage, ten years, I agreed to see it through. ’ ’</p> <p>Mrs. Wells’ title to the lands previously owned by her husband, but which the plaintiff had managed to vest in her, was attacked by various creditors in different forms of actions, which the' plaintiff defended! successfully; and finally her estate ripened into a secure one and obtained a good reputation so she could sell it. The defendant denied employing the plaintiff as attorney at all and testified that in everything he did he acted as her husband’s attorney and not as hers. James R. Wells, the husband, died in the spring of 1903, and this action was instituted in the fall of that year. The account was not presented to the defendant for payment until after her husband’s death. There was a jury trial of the case, resulting in a verdict for the plaintiff for $100; judgment was entered accordingly and lie appealed, assigning errors in the rulings on the evidence and the instructions, as well as that the verdict was manifestly against the evidence and the outcome of passion and prejudice on the part of the ■jury.</p>

— Hon. David H. Eby, Judge. (1) The first question to he solved is the judgment so rendered by said justice void or voidable. Black on Judgments, vol. 1, sec. 170, says that a void judgment “is a mere nullity” and “is attended by none of the consequences of a valid adjudication” nor can it affect, impair or create rights.

—Hon. David H. Eby, Judge. The court erred in admitting in evidence the certified copy of the articles of incorporation of the plaintiff. Because the law of the State of Illinois was not offered in evidence, if such there be, to show the authority of Secretary of State to issue articles of incorporation in said State of Illinois.

— Hon. David H. Eby, Judge. (1) It is not negligence on the part of defendant to supply a car with the standards and hoards as described in the petition and evidence, to be used for the purpose shown by the evidence. Defendant could not have anticipated that plaintiff or any other would undertake to use the board spoken of in the pleading’s and evidence to lean upon or ride on. Brewing Co. v. Talbot, 141 Mo. 676, 42 S. W. 679; Hicks v. Railroad, 6 Mo.

<p>Appeal from Lewis Circuit Court. — Hon. Edwin R. McKee, Judge.</p> <p>(1) It is the well-settled law of this State that in. proceedings of this character the jury should consider in favor of a railroad company those benefits, if any, which are immediate and direct to the owner’s land, arising from the construction of the road. Railroad v. Baker, 102 Mo. 553. The same rule applies where land is taken for highway. Bennett v. Woody, 137 Mo. 377, 38 S. W. 972; Zeibold v. Foster, 118 Mo. 349, 24 S. W. 155. (2) Appellant’s twenty-third assignment of error is based upon the action of the circuit court in rendering judgment in the trial anew on the question of damages against Lewis county. In thus rendering judgment the court followed the law. State v. Searey, 89 Mo. App. 393; In re Gardner, 41 Mo. App. 594; Bell v. Co. Court, 61 Mo. App. 179; Forsyth v. Heege, 61 Mo. App. 277; Aldridge v. Spears, 40 Mo. App. 29; St. Louis v. Gleason, 15 Mo. App. 25; Smith v. Brasher, 67 Mo. App. 58.</p>

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The court erred in refusing to give the peremptory instruction offered by appellant at the. close of all the evidence, (a) Because there was no evidence of any violation of the statute of the State in regard to belting, shafting, gearing and drums having to be securely guarded; (b) Because there was no evidence that defendant failed to give plaintiff proper warning in reference to the dangers of said machine; (c)…

— Hon. Edwin R. McKee, Judge. (1) The doctrine is a familiar one that equity-will interfere where a judgment is obtained or entered at law, through fraud, accident or mistake, and by all appropriate means will protect the rights and interests of the party who would otherwise be injudiciously affected thereby. State ex rel. v. Engelmann, 86 Mo. 552; 3 Pom. Eq. Jur., sec. 1364, 1 Story Eq. Jur., sec. 252a; 2 lb., sec. 876a; 2 Dan.

— Hon. Houston W. Johnson, Judge. (1) The defendant offered peremptory instructions at the close of plaintiff’s evidence and again at the close of all the evidence that under the evidence plaintiff could not recover, which instruction the court refused. Guyer v. Railway, 174 Mo. 350, 73 S. W. 584. But plaintiff in a very ingenious way seeks by his evidence to relieve himself of the responsibilities thrown upon him by the law under these circumstances.

— Hon. A. D. Burnes, Judge. (1) The court erred in overruling defendant’s demurrer to the petition for the reason that there is a misjoinder of causes of actions stated therein, which is not permitted by the statute. R. S. 1899, sec. 593. And it is good ground of demurrer. R. S. 1899, sec. 598; Jamison v. Copher, 35 Mo. 483; Ederlin v. Judge, 36 Mo. 351.

— Hon. Jno. P. Butler, Judge. (1) • By defendant’s fifth instruction the jury are directed that before they can make their verdict for the plaintiff they must find from a preponderance of the evidence that the defendant signed the note himself or that it was signed by some one else whom he had authorized. This puts upon the plaintiff a burden not imposed by the law. By delivering the note as his own he adopted the signature to it, whether made with or without his authority.

— Hon, John A. Hockaday, Judge. (1) The allegation of the petition and plaintiff’s instructions as to negligence on the part of defendant are not supported by proof. Milling Co. v. Transit Co., 122 Mo. 258; Feary v. Railroad, 162 Mo. 96. (2) The court erred in the admission of incompetent and illegal testimony over defendant’s objection. King v. Railroad, 98 Mo. 236; Madden v. Railroad, 50 Mo.

— Hon. Argus Cox, Judge. (1) There was no order for an election until the pretended nunc pro time entry, which was made on the day of the trial in the circuit court; to-wit,’on the 24th day of August, 1904. (2) There wasno notice of the election. The pretended notice is no notice. The publication purports to be a copy from the record of an order calling an election, when in fact no such record existed until the pretended nunc pro tunc entry made on the 24th day of August.

— Hon. Jno. P. Butler, Judge. (1) The giving of plaintiff’s instruction numbered 2 was not error. The instruction properly declared the law of the case. The rights of the travelling public upon the crossing are not subordinate to the railway company. They are each equally bound to use caution, care and diligence to avoid injury. Kennayde v. Railroad, 45 Mo. 262; Zimmerman v. Railroad, 71 Mo. 477; Baker v. Kansas City, 147 Mo. 140.

—Hon. Nat. M. Shelton, Judge. (1) The facts did render the policy void and released the defendant from further liability thereunder, but also forfeited the claim of John, Michael and Annie to any part of the $1,400 on account of the loss of the barn, has frequently been held and is the well-settled law. Claflin v. Ins. Co. (U. S. S. C.), 13 Ins. Law Jour. 177, 185; 4 Joyce on Insurance, secs. 3339 and 3342; Ins. Co. v. Meides (U. S.), 14 Wall. 375; Gerhouser v. Ins.

— Hon. W. B. Teas dale, Judge. (1) The plaintiff was not entitled to recover under the evidence in this cause and the court should have so instructed the jury. Beekman v. Brewing Co., 98 Mo. App. 555; Watson v. Coal Co., 62 Mo. App. 356; Marshall v. Hay Press, 69 Mo. App. 256; Steinhauser v. Spraul, 127 Mo. 540.

— Hon. P. C. Stepp, Judge. (1) The court committed error in refusing to give the demurrer to the evidence and instruction numbered 1 in the nature of a demurrer to the evidence, both requested by the defendant. Abbott v. Railroad, 83 Mo. 271; Fick v. Railroad, 157 Pa. St. 622, 626; Emery v. Railroad, 102 N. C. 209; Trust Co. v. Railroad, 57 Fed. 441. (2) The court committed error in the admission of evidence on the part of the plaintiff.

—Hon. Jno. E. Hazell, Judge. (1) Tbe justice bad authority to issue tbe warrant before tbe filing of tbe information if satisfied that the accused was about to escape, or had no known place of permanent residence or property in the county likely to restrain her from leaving for the offense. R. S. 1899, sec. 2750. (2) The presumption is the justice acted under and within his authority, and it devolved upon the plaintiff to prove the contrary.

— Hon. John W. McElhinney, 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. Considering the whole record it is apparent that the appellant is entitled to a judgment for the amount of the notes sued upon with interest. Such judgment therefor should he entered up in this , court. Ringo v. Richardson, 53 Mo. 385; Hunt v. Railroad, 89 Mo. 607; Pine v. Schools, 39 Mo. 59; Murdock v. G-anahl, 47 Mo. 135; State to use of Heckart, 62 Mo. 427.

— Hon. A. M. Woodson, Judge. (1) Defendant’s demurrer to plaintiff’s evidence should have been sustained. Plaintiff showed no title to the property claimed to be damaged. (2) The court erred in permitting witnesses to testify as experts as to the market value of the property, when it was shown they had no experience in buying and selling real estate. Turner v. Hoar, 114 Mo. 335; G-oins v. Railroad, 47 Mo. App. 173; Thompson v. Ish, 99 Mo. 160.

— Hon. P. C. Stepp, Judge. (1) The action of the justice in refusing to allow the appeal was proper. The sureties on an appeal bond must.be “approved by the justice.” R. S. 1899, sec. 4060. (2) A rule on a justice of the peace to allow an appeal from a judgment rendered by him is not authorized when it does not appear that the party moving for the rule tendered or was ready to perfect the bond .for appeal within the prescribed time. Kelm v. HunHer, 49 Mo.

— Hon. Henry M. Barney, Judge. (1) Under its charter, section 5508, R. S. 1899, the city is not authorized to levy a general tax in excess of one per cent. The complaint clearly charges an excessive levy. There was no attempt to amend it. An excessive levy is absolutely void. Barnard v. Knox Go., 105 Mo. 382.

— Row. James Gibson, Judge. (1) The court erred in sustaining respondent’s motion for judgment on the pleadings. R. S. 1899, sec. 407; Alexander v. Wade, — Mo. App. —. (2) The court erred in overruling and denying appellant’s motion for a new trial of the issues on the plea in abatement.

— Hon. W. B. Teasdale, Judge. This case was tried without notice to plaintiff. There is no notice by virtue of the docket, for the cause was not upon the docket. R. S. 1899, sees. 825, 826, 1583, 1584; Summers v. Ins. Co., 56 Mo. App. 654. The case (Summers v. Ins. Co., 56 Mo. App. 653), cited by appellant, merely holds that the clerk’s placing of the case upon the docket and' assigning it a day for hearing was sufficient notice to litigants that it had been set for trial.

— Hon. A. F. Evans, Judge. (1) Appellant’s objection to the introduction of any evidence should have been sustained. Peck v. Bridwell, 6 Mo. App. 451; Langford v. Sanger, 40 Mo. 164; Shaw v. Allen, 20 Wis. 563; Black v. Rogers, 30 Ind. 420; Wilcox v. Keith, 3 Ore. 372. (2) The foundation of'the mechanic’s right to a lien is the existence of a contract for the work or material, which contract must he made with the owner or his agent, contractor or subcontractor.

— Hon. J. D. Perkins, Judge. (1) The provision of the policy requiring proofs of loss, is, unless waived, a condition precedent to plaintiff’s right to recover. Leih v. Ins. Co., 37 Mo. App. 542. (2) The form furnished by appellant embraced a bank form for magistrate’s certificate. That was a sufficient requirement. Sullivan v. Ins. Co., 89 Mo. App. 106. Moreover, respondent was advised that compliance would be waived. Loesch v. Casualty Co., — Mo. —, 75 S. W. 624.

— Hon. J. W. Alexander, Judge. (1) The village of Orrick had no authority to pass an ordinance in relation to carrying concealed weapons, for the statute neither expressly nor impliedly confers such power upon towns and villages. R. S. 1899, sec. 6010; R. S. 1899, secs. 5958 and 5965. The case of Vaughn v. Greencastle, — Mo. App. —, 78 S. W. 51, is exactly in point. Knapp v. Kansas City, 48 Mo. App. 492; Dillon, Mnn. Corp., sec. 472; Trenton v. Clayton, 50 Mo. App. 541.

Circuit Court. — Hon. Henry M. Ramey, Judge. (1) When defendant hank received the drawee’s check on the Stock Tards Bank, in payment of the draft of plaintiff’s hank on them and surrendered to drawees the draft, it made the check its own and its liability to the plaintiff hank became fixed, as much so as if it had received the cash. Bank v. Bank, 151 Mo. 320-330, and cases cited.

— Hon. A. M. Woodson, Judge. (1) The court erred in refusing defendant’s request to find the passage of the extension ordinance, approved November 20, 1899. It was an undisputed and material fact. (2) The extension ordinances in this case, where time was of the essence of the contract were invalid, and without effect to relieve the contractor. Smith v. Westport, 79 S. W. 725.

— Hon. Hugh Dabbs, Judge. (1) The suit being for the recovery of the purchase price of personal property, the defendants having taken and retained the possession of the property and never having offered to return same, and neither their title nor possession ever having been disturbed or challenged by any third party, the doctrine of estoppel precludes them from pleading or proving that Berry had no title.

— Hon. J. D. Perkins, Judge. (1) The petition does not state facts sufficient to constitute a cause of action, and advantage of this defect may he taken for the first time in this court. R. S. 1899, sec. 602. (2) The failure of the petition to state facts which in law amount to negligence on the part of the city is fatal to the petition. Dyer v. Railroad, 34 Mo. 127; Bowie v. Kansas City, 51 Mo. 454; Hurst v. Ash drove, 96 Mo. 168.

— Hon. J. W. Alexander, Judge. (1) “ When description is hopelessly uncertain the conveyance is void and no title is passed. ’ ’ Campbell v. Johnson, 43 Mo. 247. (2) Yague, impossible and incomplete descriptions are not favorites of the law, and sometimes parties have to suffer the consequences of accidents and errors. Trust Co. v. McDonald, 146 Mo. 467; Railroad v. Smith, 156 Mo. 608.

— Hon. Henry M. Ramey, Judge. (1) The court erred in allowing and taxing the fee in this case in favor of James F. Pitt, respondent’s attorney. There was no contract between the plaintiff and her counsel as to the amount of the fee, neither was there any stipulation filed and signed by the parties to the suit, authorizing the court to fix the fee.

—Hon. P. C. Stepp, Judge. (1) The order of the court granting alimony, in this case is a final one, and one from which an appeal will lie. State ex rel. v. Sedden, 93 Mo. 520. (2) It is error to render judgment for alimony, pendente lite before the marriage has been admitted or proved. Wagoner v. Wagoner, 6 Mo. App. 572. (3) It must appear that the suit was instituted in good faith and that it is not prosecuted for the mere purpose of obtaining money from the husband.

— Hon. P. C. Stepp, Judge. (1) The service of process in this case was constructive, or substituted service; ánd where service of process is attempted to be had constructively, a strict adherence to the requirements of law must be observed or the judgment, will be void. 19 Ency. of Plead, and Prac., 656; Corrigan v. Schmidt, 126 Mo. 310; Cloud v. Pierce City, 86 Mo. 365; Hajek v. Benevolent Society, 66 Mo. App. 572; Gamasche v.Smythe, 60 Mo.

— Hon. James E. Hazell, Judge. (1) There can he no doubt but that the plaintiff in jumping off of the train under the circumstances shown by the plaintiff’s own evidence, was guilty of such a careless and reckless act as precludes a recovery by him for his injury. Murphy v. Railroad, 43 Mo. App. 354; Heaton v. Railroad, 65 Mo.

— Hon. J. H. Slover, Judge. (1) The provisions of the general ordinance requiring the specifications to he made out and on file before the advertisement was published, and that the specifications should state the amount of security or bond that would be required of the contractor, were mandatory, and therefore defendants’ instructions numbered 2, 3, 4 and 5, should have been given. Desoto v. Showman, 100 Mo.