Volume 110 — Missouri Appeal Reports

— Hon. John A. Hochaday, Judge. (1) The court erred in overruling defendant’s demurrer at the close of plaintiff’s evidence, and also at the close of all the evidence. As there was a partnership existing between plaintiff and defendant, in regard to the hogs and corn, the plaintiff’s suit could not be maintained, and the justice of the peace had no jurisdiction, as there had been no settlement'of their partnership affairs. Newberger v. Friede, 23 Mo.

— Hon. James E. Haz ell, Judge. (1) Counsel for appellant contend that this indictment is insufficient, for the reason that it is multifarious and contains different offenses charged in one count. The case of State v. Ambs, 20 Mo. 214, cited by counsel for respondent, was not one based upon the same statute as is the indictment in the case at bar. The act in the case of State v. Ambs, first appeared in E. S. 1825, c. 1, Crimes & Misdemeanors, sec. 92.

— How. W. B. Teasdale, Judge. (1) At best the Powell Hardware Co. were merely guarantors without being requested to be so and under no circumstances could they recover in a case of this kind. (2) Prom the evidence in this case, it is clear that this was a non-trading copartnership.

— How. W. W. Graves, Judge. (1)The first duty of the administrator is to collect and pay off the claims in the order in which they are classed so far as he has assets. Section 210, R. S. 1899. (2) In Missouri the creditors are bound by the acts of the administrator even where they are not parties to the action. Kennerly et al. v. Shipley, 15 Mo. 640.

— Row. J. R. Slover, Judge. (1) The recital in the ordinance that the common council deemed the sewer necessary for sanitary and drainage purposes did not render the ordinance invalid. (2) There could be no question that a sewer which carries the street drainage off from the street and deposits it in a running stream and which furnishes the means of draining stagnant pools of water, is a benefit to the public health. Courts take judicial notice of such facts.

— Row. W. B. Teas dale, Judge. (1) The first instruction given by the circuit court on behalf of the plaintiff reduced to its last analysis, told the jury: (a) If defendants accepted the nails; (b) If defendants knew they were inferior in quality or not the quality of nails contracted for and ordered by defendants; (c) Then defendants can not now object to the quality, and (d) Tour verdict must be in favor of plaintiff for the amount sued for. New Birdsall Co. v. Keys, 99 Mo.

— Ho». William C. Ellison, Judge. (1) Now, if this court is of the same opinion as the trial court, then we confidently submit that the petition here contains every essential allegation in an acttion for- money had and received, and as sustaining if. Koopman v. Cahoon, 47 Mo. App. 357; Hull v. Watts, 95 Va. 10; 22 Enc. PI., p. 770; McGee v. Bell, 170 Mo. 135; Land Co. v. Simpson, 20 S. W. (Tex.) 953.. ‘(2) Where land is sold in gross these rules seem to be well settled.

— Hon. James E. Hasell, Judge. (1) Plaintiff offered substantial evidence to sustain its suit. The court can not withdraw such evidence from its consideration by a peremptory instruction. Every proposition contended for by respondent in the trial below is contradicted by the testimony of plaintiff’s witnesses. Where there is any substantial evidence to support a case, it is error to sustain a demurrer, and for this reason the cause will he remanded.

— Hon. James E. Hasell, Judge. (1) A bank is bound to ascertain that the person presenting a check is the one entitled to receive payment under the penalty of refunding either to the party entitled or to the drawer. Milliard v. Bank, 3 McArthur 54; Bank v. Cook, 73 Pa. St. 483; Johnson v. Bank, 6 Hun 124; Welsh v. Bank, 73 N. Y. 424; Thompson v. Bank, 82 N. Y. 1; Bank v. Bank, 30 Md. 11.

— Hon. James E. IIas ell, Judge. (1) Defendant in error can not maintain this action as agent of the prohate court of Morgan county, for the reason that probate courts are of limited jurisdiction, their powers being conferred solely by statute. Ford Admr. v. Talmage, 36 Mo. App. 65; Butler v. Lawson, 72 Mo. 227.

— Ho». George F. Longan, Judge. (1) Division fences or ‘ ‘ inside fences ’ ’ are' not necessarily partition fences. Our courts have repeatedly held that one can protect himself by building along a division line a lawful fence. Demetz v. Benton, 35 Mo. App. 559; Fenton v. Montgomery, 19 Mo. App. 158. (2) The court committed error in giving peremptory instruction in nature of a demurrer directing the jury to find for plaintiff.

— Hon. Samuel Davis, Judge. (1) The demurrer to the evidence offered by the defendant at the close of the case should have been given. (2) Instruction number one given for the respondent should not have been given. There was no evidence to base it upon. (3) The court erred in refusing to give instruction number three, asked by the appellant. Devitt v. Railroad, 50 Mo. 302. (4) Instruction number four, asked by defendant and refused by the court should have been given.

— Now. E. G. Timmonds, Judge. . - (1) The case of People v. Walsh, 65 111. 58, is relied upon by the State in this case. It decides that soliciting a bribe is a misdemeanor at common law, and punishable as such; but it further decides that, where a defendant was convicted upon the unsupported testimony of a single witness, who was impeached, and shown to have been actuated by great personal hostility to defendant, a person of good character, the conviction could not stand.

— How. J. W. Alexander, Judge. (1) A soliciting agent of town mutual insurance companies lias the same power to modify or waive provisions of a contract as an agent of an “old line” company. A comparison of the following two decisions will establish proposition: Laundry v. Ins. Co., 151 Mo. 90; Ross-Langford v. Mutual Co., 97 Mo. App. 79.

— Ho». J. W. Alexander, Judge. (1) What is the meaning of the initial word, 1 ‘upon, ” of section 3639, R. S. 1899? Among the mean- ■ ings in the best lexicons are these: When, at the time of, on occasion of, in the sense of time; noting the time when an event came or is to come to pass. Universal Dictionary; Webster’s Unabridged Dictionary; Anderson’s Law Dictionary.

— How. J. W. Alexander, Judge. (1) The contract, as alleged and proven, was to safely carry respondent between the termini of the route. This would include a safe and reasonably convenient mode of exit from the car to the platform. All was supplied, and all was accomplished — safe transportation, a safe and reasonably convenient mode of exit from the platform, a platform in first class condition, and a safe alighting thereon. Tonng v. Railroad, 93 Mo.

— Row. J. W. Alexander, Judge. (1) The servant that defendant authorized to perform these duties is a vice-principal — defendant’s alter ego. 0 ’Hare v. Eailroad, 95 Mo. 667; Butts v. Bank, 99 Mo. App. 173; Euth v. Transit Co., 98 Mo. App. 14; Connolly v. Ptg. Co., 166 Mo. 463; James v. Mut. E. E. L., 148 Mo. 16; Ballard v. Eailroad, 51 Mo. App. 457; Grace v. Eailroad, 156 Mo. 301; Creighton v. M. W. A. 90 Mo. App. 387. (2) Franklin was plaintiff’s vice-principal.

— Ho». Benj. J. Casteel, Judge. , (1) The license fee of $50 imposed by section 1, chapter 40 of the laws of the city of St. Joseph for the non-payment of which judgment appealed from was entered, is of such amount and levied under such conditions that it is manifestly not simply a charge made for the purpose of defraying the expense of enforcing a police regulation, but is a tax for the purpose of providing revenue. Lamar v. Adams, 90 Mo.

— How. A. M. Wood-son, Judge. (1) The chief question presented by this record involves the validity of a sewer bill, issued against and in the name of a dead person, whom the officer knew to he dead, and while he in fact knew who was the owner of the property described in it. R. S. 1899, sec. 5686. (2) Is this statute mandatory, or merely directory?

— Hon. A. D. Burnes, Judge. (1) One entering a train as an escort for a female taking passage thereon is not deemed a passenger, and is entitled to no time to get on or off, except that afforded in performing’ the ■ company’s duty to its passangers, unless the company has notice of the fact that he enters on the train as a mere escort, and even in that case ordinary care and diligence is the degree of care due such person, and not the high degree, of care due to passengers.

— Row. James Gibson, Judge. (1) The court erred in refusing a trial by jury of the questions of fact in this cause mentioned in the motion for such trial by appellants and as requested by appellants at the trial. Tinsley v. Kinney, 170 Mo. 317; Rutherford v. Williams, 42 Mo. 38; Smith v. Canning Co., 14 Mo. App. 522; New Harmony Lodge v. Railroad, — Mo. App. —, 74 S. W. 5.

— How. 8. G. Douglass, Judge. (1) The facts shown by the .record about which there are no dispute show plaintiff to have been guilty of contributory negligence. Weber v. Railroad, 100 Mo'. 194; Neville v. Railroad, 158 Mo. 293; Railroad v. Landauer, 36 Neb. 642; Straus v. Railroad, 75 Mo. 191; Nelson v. Railroad, 68 Mo. 593. (1) The question of contributory negligence was for the jury.

— Uo». E. P. Gates, Judge. (1) On the undisputed facts plaintiff was entitled to recover. The lease contained a covenant to pay the rent but contained no covenants on the part of the lessor. The defendants signed the lease, accepted possession of a part of the leased premises, knowing that Crowe was in possession of the other and smaller part.

— Wo». P. G. Stepp, Judge. (1) The holding of the court that the judgment rendered by Justice Embry was voidable only, and not absolutely void, was reversible error. Ryan v. Kelly, 9 Mo. App. 396; Railroad v. Warden, 73 Mo. App. 120. (2) Service of legal process in Justice Linney’s court did not give Justice Embry jurisdiction of tbe person of defendant. E. S. 1899, secs. 3973, 3974; Laugblin v. .Fairbanks, 8 Mo. 367; Caldwell v. Lockridge, 9 Mo. 362.

— Ho». Samuel Davis, Judge. (1) The verdict was for the right party; and though there may be some error in the instructions given by the trial court the rights of the respondent were not prejudiced. He failed to make out his case. In no event can the city of Marshall be held in damages upon the allegations of his petition and the evidence offered to sustain them.

— Eon. James Gibson, Judge. (1) The plaintiff pleaded a liability by reason of ■ the alleged violation of an ordinance. -No evidence of any ordinance was introduced. The plaintiff was permitted to recoved on an alleged common law liability. This he was not entitled to do under the pleadings. Mc-Manamee v. Railroad, 135 Mo. 447 ;■ Holliday v. Jackson, 21 Mo. App. 660; Hansberger v. Railroad, 43 Mo. 196; Kansas City v. Hart, 60 Kan. 684; Railroad v. Wyler, 158 H. S. 285.

— Hon. H. M. Ramey, Judge. (1) The constable had no right or lawful authority to tamper with the writ or summons issued by the justice. Even the justice who issued the writ could not make such a change after it left his hands. Trigg v. Ross, 35 Mo. 165; 1 Freeman on Executions (3 Ed.), sec. 47; Cope v. Snider, 99 Mo. App. 498.

— Hon. H. G. Timmonds, Judge. (1) Tbe Kansas City, Ft. Scott & Memphis Railway Co. bad tbe power to lease its road to tbe defendant and turn tbe management over to defendant according to the terms of the lease. R. S. 1899, sees. 1061, 1081.

— Ho». John P. Butler, Judge. (1) TJnder either showing of facts Curry paid the amount of the note to Guest for Whitmore, and Whit-more received credit for it and agreed to repay it. Every principle of law that would hold Whitmore to his contract under one statement of the facts would hold him under the other; so we can see no possible reason why the same result should not follow, and the judgment of the trial court he reversed and the cause remanded for a new trial.

Original Proceedings by Probibition. (1) Sections 756-758 and 761, R. S. 1899: “Where the plaintiff in the suit dies the administrator can be-substituted in his place, only by voluntary appearance of the defendant or by service upon him of a scire facias.

— Ho». W. B. Teasdale, Judge. (1) The only allegation of negligence in the petition is that the'agents and servants of the defendant in charge of the car carelessly and negligently started the same with a sndden and violent jerk and lurch, thereby causing plaintiff to be injured. There is no evidence to sustain this allegation. Bartley v. Railroad, 148 Mo. 140; Pryor v. Railroad, 85 Mo. App. 379; Saxton v. Railroad, 72 S. W. 720; Portuchek v. Railroad, 74 S. W. 368.

<p>.1. TRIAL PRACTICE: Nunc Pro Tunc Order: Motion for New Trial. Where a motion for nuno pro time order to show the filing of a motion for a new trial, shows that the the latter motion was filed in vacation, it precludes the granting of the order.</p> <p>2. -: -: -. A verbal understanding between the counsel and the court can not supply a record authorizing a nuno pro tuno entry.</p> <p>3. -: -: -: Bill of Exceptions. The recitations of a bill of exceptions in regard to filing motion for new trial will not justify the court in making a nuno pro tuno entry to that effect, when other entries show it not to be true.</p> <p>4. -: Motion for New Trial: Record Proper. The filing of a motion for new trial must be found in the record proper.</p>

— How. J. W. Alexander, Judge. (1) A warranty in a contract of insurance must, if affirmative, be strictly and exactly true, and if promissory must be literally fulfilled; tbe validity of tbe entire contract depends tbereon, otherwise it becomes void. 3 Joyce on Insurance sec. 1970; Digby v. Ins. Go., 3 Mo. App. 603; Crook v. Ins. Co., 38 Mo. App. 582; Maddox v. Ins. Co., 56 Mo. App. 343.

John P. Butler, Judge.. (1) Sec. 1105, R. S. 1899, is a penal statute, and every fact necessary to be proven on the trial to make out a case under the statute must be alleged. Manz v. Railroad, 87 Mo; 278. (2) Where the field is inclosed the statement must allege facts showing that the animal was lawfully in the inclosure. Ferris v. Railroad, 30 Mo. App. 122; Board v. Railroad, 36 Mo. App. 151; Harrington v. Railroad, 71 Mo. 384; Rinehart v. Railroad, 80 S. W. 910.

— Eon. Jas. E. Hasell, Judge. (1) The appearance of defendants before the justice was a plea of the general issue, which includes-fraud, misrepresentation and failure of consideration. Hamsby v. Stevens, 65 Mo. App. 189. (2) In his petition the plaintiff says that he is an innocent purchaser for value before maturity. This is an “express aider” and plaintiff assumed the affirmative of the issue he thus makes. Henry v. Sneed, 99 Mo. 424.

— Hon. W. K. James, Judge. (1) Is this statute mandatory, or merely directory1? If mandatory, then a taxhill made out, as in this case, against a dead person, whom the engineer knew to be dead, and who by no possibility conld be the owner, is absolutely void, and not amendable. In such circumstances the officer makes no mistake, to be corrected or amended; he willfully fails or refuses to obey the law, and his act is a nullity. Sedalia v. Gallie, 49 Mo.

— How. A. D. Burnes, Judge. (1) The jury was not mislead by the instructions, (a) We find many decisions where one word is used for another — “plaintiff’’ for “defendant” is the most usual. Trustees v. Hoffman, 95 Mo. App. 497; Bank v. Goddard, 8 Mo. App. 596; 0 ’Callaghan v. Bode, 24 Pac. 271; Shortelle v.'St. Joseph, 104 Mo. 121; Lin v. Railroad, 10 Mo. App. 134; Railroad v. Merritt, 47 S.E. 908; Nichols & Shepard v. Metzger, 43 Mo. App. 615.

— No». John A. PLockaday, Judge. ■ (1) The instruction is not only grossly erroneous, but is a false statement of the law. Smith v. Railroad, 19 Mo. App. 126. (2) The vice of the instruction consists in not employing the word “willfully” or “knowingly” so that the jury would have been required to find that tbe witness bad willfully sworn falsely. Smith v. Railroad, 19 Mo. App. 126; Blitt v. Heinrich, 33 Mo. App. 243; Evans v. Railroad, 16 Mo.

— -No#. A. D. Burnes, J udge. (1) The allegations in respondent’s petition are not sufficient to warrant the introduction of testimony of cancer causing the amputation of respondent’s foot some four or five years after the alleged injury, such testimony being too remote, unless specially pleaded. Sedgwick on Damages (12 Ed.), sec. 1270; 5 Ency. Plead, and Prae., p. 750; O’Leary v. Rowan, 31 Mo. 119; Brown v. Railroad, 99 Mo. 318; Muth, Ex., v. Railroad, 87 Mo. App. 442.

— How. Shannon C. Douglass, Judge. (1) Plaintiff over defendant’s objections was permitted to prove by Mrs. Duke how plaintiff appeared when she told her that Mrs. Wintsch had been talking about her and trying to run her character down. (2) Mrs. Griffin, over defendant’s objections, was allowed to testify that she understood Mrs. Wintsch to mean that they were living together in adultery and fornication.

<p>Appeal from Jackson Circuit Court. — Hoto. John W. Henry, Judge.</p>

— Ho». James Gibson, Judge. (1) The court committed error in giving instruction numbered one as prayed by the plaintiff. This instruction makes no limit on the amount plaintiff could recover from the defendant. Wright v. Jacobs, 61 Mo. 19; Van Riper v. Morton, 61 Mo. App. 444; Wagner v. Ptg. Co., 45 Mo. App. 6; Shockley v. Fisher, 21 Mo. App. 551; Armstrong v. St. Louis, 8 Mo. App. 100; Ashby v. Shaw, 82 Mo. 76.

— Eon. W. B. Teasdale, Judge. (1) Appellant, on paying the money to the bank, ■took its place, and stands in its shoes as to the note. It is not suing at law in assumpsit, upon an implied promise on Jordan’s part to refund the money it paid for him; but it is asking to be subrogated to the rights which the bank, Jordan’s creditor, had for the same debt.

— Ho». Geo. F. Longan, Judge. (1) The court eired in refusing the instruction asked by defendent at the close of plaintiff’s evidence in the nature of a demurrer to plaintiff’s evidence, and also erred in refusing the peremptory instruction asked by the defendant at the close of all the evidence, for the reason that the written contract in this case is plain and free from ambiguity and uncertainty.

— Eon. J. D. Perkins, Judge. (1) The defendant contends that the court below ■erred in refusing to compel plaintiff to elect upon which count of the petition it would stand. Roberts v. Railroad, 43 Mo. App. 287; Rinard v. Railroad, 164 Mo. 270; Maguire v. Railroad, 103 Mo. App. 459. (2) Plaintiff has but one cause of action and is entitled to but one satisfaction.

<p>Appeal from Jasper Circuit Court. — Row. J. D. Perkins, Judge..</p> <p>The court erred in sustaining defendant’s demurrer to plaintiff’s amended petition. 5 Am. and Eng’. Ency. of Law (2 Ed.), 815; 5 Am. and Eng. Ency. of Law (2 Ed.), 821; Duke v. Harper, 66 Mo. 51; Vulcanide Co. v. White, 10 Fed. 752; Fletcher v. Ellis, Fed. Cas. No. 4863a; Harris v. Brisco, 17 Q. B. Div. 504; Pechell v. Watson, 8 M. & W. 691.</p> <p>(1) It was the duty of plaintiff to do every act possible on his part to decrease any damages to him "by reason of any unlawful act of defendant, either imaginary or otherwise. Douglas v. Stephens, 18 Mo. 362; Trust Co. v. Stewart, 115 Mo. 236; State ex rel. v. Harrington, 44 Mo. App. 297. (2) The allegations that “defendant unlawfully, willfully and maliciously maintained the Big Circle Mining Company” are but mere conclusions of law and consequently surplusage. Bliss on Code Pleading (3 Ed.), see. 211; Nichols v. Stevens, 123 Mo. 117. (3) If defendant committed no legal wrong,, though, as plaintiff alleges, its acts resulted in damage to plaintiff, and though defendant may have had improper motives, the law affords no remedy. Land & Gravel Co. v. Com. Co., 138 Mo. 445. (4) The policy of the law which strikes at champerty and maintenance only prohibits the enforcement of contracts based thereon and does not act on the subject of such contract so that it destroys the claim of plaintiff or the defense of the defendant. It is the unlawful dealing in the right, and not the right itself, on which the barrier is placed. Enneau v. Rieger, 105 Mo. 682; Pike v. Martindale, 91 Mo. 284; Bent v. Priest, 86 Mo. 490. (5) A suit for personal injuries being for an unliquidated or uncertain claim and amount, there could be no contract tainted with champerty or maintenance relative thereto, as the two essential elements are not present; that is to say there must be, first, an undertaking to defray the expenses of the litigation; and, second, an agreement or promise on the part of the party to divide with the litigant the proceeds of the suit in the event it proves successful. Torrence v. Shedd, 112 111. 466.</p>

<p>Appeal from Jasper Circuit Court. — Ho». Hugh Babbs, Judge.</p> <p>The court erred in sustaining defendants’ motion for a new trial. Lumber Co. v. Christophel, 59 Mo. App. 80; Schmidt v. Railway Co., 163 Mo. 645; Herdler v. Stove and Range Co., 136 Mo. 3; Candee v. Railroad, 130 Mo. 154; Lowell v. Davis, 52 Mo. App. 342; Vatine v. Rex, 93 Mo. App. 9'3; Thompson v. Railroad, 140 Mo. 125; Haven v. Missouri Co., 155 Mo. 226; Campbell v. Railroad, 86 Mo. App. 67; Ittner v. Hughes, 133 Mo. 679; Miller v. Car Co., 130 Mo. 517; Armiston ,v. Trurnbo, 77 Mo. App. 314; Bradley v. Reppell, 133 Mo. 545; Baughman v. Pulton, 139 Mo. 559; Real Estate Co. v. McDonald, 140 Mo. 612; Snyder v. Burnham, 77 Mo. 52; Kansas City v. Oil Co., 140 Mo. 475; State v. Reed, 89 Mo. 168; Walker v. Railroad, 83 Mo. 609; Gains v. Pender, 82 Mo. 497.</p> <p>(1) The relations of the parties were defined in the contract above set out under which the ground was being mined by Adam Scott. There is no evidence in the record anywhere that that contract was. abandoned, it appears from the testimony of Mr. Stevens, the superintendent of the Granby Mining Co., and Dolan, the attorney for respondents as well as respondents, that Scott continued mining under said contract during the times referred to by plaintiffs and up to the time the mine was shut down and possession taken of it by respondents. (2) The giving of instruction numbered four was clearly erroneous because it tells the jury that a partnership existed, although there was no express agreement to become partners if they conducted mining operations jointly. (3) Appellant relies on the case of Snyder v. Burnham, 77 Mo. 52. That case is not applicable. The mere sharing of profits and losses has been held not to constitute a partnership, if it can be shown that no partnership was intended. This can be shown by the contract set out. It is very clear that this contract does not constitute Scott and Brintlinger and Hodge partners. Hughes v. Elwing, 162 Mo. 261; Hardware Co. v. Harrison, 89 Mo. App. 154; Hazel v. Clark, 89 Mo. App. 78; Mackie v. Mott, 146 Mo. 230.</p>

— Ho». J. D. Perkins, Judge. (1) The finding and decree is not warranted by the pleadings, and is not supported by the facts shown in evidence. In other words, the court below was not authorized, under the pleadings and evidence, and it was error to reform the deed in question by inserting such a provision therein. Jewett v. Railway, 45 Mo. App. 58; Blain v. Knapp, 140 Mo. 251; Mastin v. Halley, 61 Mo. 196; Bank v. Farris, 77 Mo. App. 186; 2 Am. and Eng.

<p>Appeal from Jackson Circuit Court. — Hon. James Gibson, Judge.</p> <p>(1) Respondent is not a fraternal beneficiary association as defined by Missouri laws. R. S. 1899, secs. 1408-1410; State ex rel. v. O’Rear, 144 Mo. 157; Baltzell v. Modern "Woodmen, 98 Mo. App. 153; Bacon, Ben. Societies, sec. 3-99; Barsfield v. M. W. of A., 88 Mo. App. 208; Barsfield v. Maccabees, 92 Mo. App. 102; McDonald v. Ins. Co., 154 Mo. 618; Aloe v. Ins. Co., 164 Mo. 675; Logan v. Casualty Co., 146 Mo. 114. (2) Suicide as pleaded is not a defense. R. S. 1899, sec. 7896. (3) Misrepresentations as pleaded are no defense and error to admit testimony tending to prove same. R S. 1899, secs. 7890, 7891 and 7936; Christian v. Ins. Co., 143 Mo. 460; Seheuerman v. Ins. Co., 165 Mo. 651; Tbassler v. Ins. Co., 67 Mo. App. 505; Lavin. v. Ins. Co., 101 Mo. App. 434; Aloe v. Ins. Co., 164 Mo. 675. (4) By demanding and receiving about December 20, 1900, and retaining" the assessment on the contract of insurance, respondent recognized the validity of the policy and waived its rights to the affirmative defenses of suicide and misrepresentations. Matt v. Prot. Soc., 70 Iowa 461; Bradford v. Ins. Co., 112 Iowa 500; Bacon, Ben. Societies, secs. 431,- 434, 435; Erdman v. Ins. Co., 44 "VVis. 376; Burdick v. Life Assn., 77 Mo. App. 637; s. c., 86 Mo. App. 94, 91 Mo. App. 529; Hopkins v. M. W. of A., 94 Mo. App. 402. (5) Appellant’s refused instructions should have been given by the court,- and those given at the request of respondent should have been refused. A new trial should have been granted. Authorities supra. R. S. 1899, sec. 899; Brown v. Ins. Co., 74 Mo. App. 490; Remmler v. Shermit, 15 Mo. App. 192; McGinnis v. Railroad, 21 Mo. App. 391; Proctor v. Loomis, 35 Mo. App. 482; Com. Co. v. Hunter, 91 Mo. App. 337.</p> <p>(1) The appeal in this case should be dismissed because appellant has not prepared, served and filed an abstract of the record as required by rule 15 of this court. Costello v. Fisher, 80 Mo. App. 107; Brand v. Connor, 118 Mo. 595; Epstein v. Clothing Co., 67 Mo. App. 221. (2) Fraternal beneficiary associations, foreign and domestic, are placed on same footing, and are expressly exempted from the operation of the general insurance laws. Hudnall v. M. W. of A., 103 Mo. App. 356; Shotliff v. M. W. of A., 100 Mo. App. 138; McDermott v. M. W. of A., 97 Mo. App. 636; Brasfield v. K. of M., 92 Mo. App. 102; Brasfield v. M. W. of A., 88 Mo. App. 208; Morton v. Royal Tribe, 93 Mo. App. 78; Chapter 12, art 2, secs. 1408, 1409, 1410, 1411. (3) Suicide is a defense under a fraternal beneficiary association certificate. Brasfield v. M. W. of A., 88 Mo. App. 208; McDermott v. M. W. of A., 97 Mo. App. 636; Shotwell v. M. "W. of A., 100 Mo. App. 138; Hudnall v. M. W. of A., 103 Mo. App. 356. (4) Misrepresentation and false answers to questions in a written applicator membership and a benefit certificate in a fraternal beneficiary association avoids the certificate. M’cDermott v. M. W. of A., 97 Mot App. 636; Whitmore v. Ins. Co., 100 Mo. 36; Hand-ford v. Ben. Assn., 122 Mo. 50. (5) The plaintiff was not entitled to recover and the court should have given respondent’s instruction to' that effect. - The verdict of the jury was for the right party and in harmony- with the true law. 'The verdict therefore should not be disturbed, no matter whether the court misdirected the jury or not. Hill v. Wilkins, 4 Mo. 88; Orth v. Dorschlein, 32 Mo. 366; Kelly v. Railroad, 88 Mo. 534; EÍlerbev.. Bank, 109 Mo. 445; Harmuth v. Railroad, 129 Mo. 642; Havens v. Railroad, 155 Mo. 224; Moore v. Railroad, 176 Mo. 88.</p>

<p>Error to Jasper Circuit Court. — How. Hugh Dabbs, Judge.</p>

— Row. Hugh Dabbs, Judge. (1) It is well settled that one partner may sue another in an action at law where the business of the partnership is closed and there is hut one unadjusted item growing out of the partnership business. Parsons on Partnership (4 Ed.), secs. 193, 194, 195; Feurt v. Brown, 23 Mo. App. 332; Byrd v. Fox, 8 Mo. 574; Whetstone v. Shaw, 70 Mo. 575; Bambrick v. Simms, 132 Mo. 51.

— Hon. W. B. Teas dale, Judge. (1) The plaintiffs’ so-called amended petition first filed in the circuit court stated an entirely new and different cause of action from the statement of account filed in the justice court and tried there, and the circuit court erred in not striking it out on defendant’s motion and in trying the issues made thereby over defendant’s objection. R. S. 1899, secs. 3852, 4077 and 4079; Thieman v. Goodnight, 17 Mo.

— No». W. B. Teasclale, Judge. .(1) The outside walls of a tenement belong to tenant, and the court should have found for appellants. Baldwin v. Morgan, 43 Hun 355, 50 N. Y. Sup. 355; Riddle v. Littlefield, 53 N. H. 503. (2) Injunction was the proper remedy in this case and a mandatory injunction could and should have been issued. High on Injunction (3 Ed.), sec. 708; High on Injunction (3 Ed.), secs. 1135-1142; Dickinson v. Canal Co., 15 Beavan 270; Howard v. Ellis, 4 Sand.

— Eon. W. B. Teas dale, Judge. (1) Unless plaintiff was a passenger at the time-she was injured, she cannot recover under the allegation of the petition. Brown v. Scarbro, 97 Ala. 316.. (2) We contend that plaintiff was not a passenger at-the time of her injury, but was a licensee.

— Row. W. W. Graves, Judge. (1) Was the conveyance of shares 25, 26 and 27 from D. C. Brandon to plaintiff, U. L. Crenshaw, void, the consideration being payment of an election bet or wager? The answdr is yes. R. S. 1899, secs. 2211, 3426, 3430'; Schropshire v. Glascock, 4 Mo. 536; see authorities on 2 and 3 below.

<p>1.MASTER AND SERVANT: Pleading: Petition: Negligent Fellow-Servant. Whatever the rule in other jurisdictions, in Missouri it is sufficient if a petition by a servant for the negligence of the master alleged the defect was known to the latter without being known to the former; and though a petition allege that plaintiff was aware of the incompetency of his fellow-servant and had notified the master thereof, yet the fact would not preclude a recovery unless the danger was so apparent that a reasonably prudent person would not have continued in the service; and such matters are affirmative defenses to be pleaded,' and the petition considered in the opinion is held sufficient.</p> <p>2.-: Negligent Fellow-Servant: Presumption: Instruction. Where a servant knows that a certain platform about which he is to work had been placed in position by a negligent fellow-servant, it is error to tell the jury that he had a right to presume that the platform had been properly placed, since it is equivalent to instructing them to find for plaintiff on the pivotal point in the case.</p> <p>3. -: -: -: -. While it is presumed that everyone exercises ordinary care, yet, where there is evidence tending to remove the presumption, reference to such presumption in an instruction is usually to be avoided.</p> <p>4. -: -: -: Evidence: Jury. Evidence is reviewed and held sufficient to send to the jury the question of plaintiff’s contributory negligence in working'about the platform which he knew to have been placed in position by a negligent fellow-servant without looking to see whether the same was securely placed.</p>

— Now. Hugh Dabbs, Judge. (1) The notice in this case was a substantial compliance with the statute. It was served ten days before the lien was filed and contained all that the statute required, and fixing the time for filing of lien was surplusage, and did not invalidate the lien or notice.

— Hon. Andrew F. Evans, Judge. (1) The court erred in giving the long instruction asked by plaintiff, designating the negligence charged against defendant as pulling upon the cable with unusual force so that it suddenly became loose and moved causing plaintiff to fall, etc. The language used presented an issue not raised in the pleadings, an issue not' constituting an allegation of negligence and if supported by the testimony, an issue that would not sustain a verdict for…

<p>Appeal from Jackson Circnit Court. — Hon. James Gibson, Judge.</p> <p>(1) It was reversible error for tbe trial court to instruct tbe jury in tbis case tbat they should assess damages in favor of plaintiff “for any pain of body and mental angnisb that she may suffer ... in the future . . . and for any permanent injuries she may have suffered.’’ Defendant’s evidence showed positively there was no permanent injury whatever. Albín v. Railroad, 103 Mo. App. 318; Batten v. Transit Co., 102 Mo. App. 285; Bigelow v. Railroad, 48 Mo. App. 367; Caplin v. Transit Co., — Mo. App. —; Schwend v. Transit Co., 105 Mo. App. 534, 80 S. W. 40; G-irdes v. Iron Co., 124 Mo. 361; Smiley v. Railroad, 160 Mo. 629. (2) Plaintiff’s first instruction referring specifically to the facts in the case and purporting to present plaintiff’s case to the jury, should have required the jury to find that the sidewalk in question described in the instruction, was not reasonably safe for travel at the time of the accident. Such finding is essential to plaintiff’s rightful recovery.</p>

— Ho». Andreio F.. Evans, Judge. (1) Neither the defendant nor Floyd were in anyway negligent. (2) The plaintiff was himself negligent, and his negligence caused or contributed to the-injury which he received. Moore v. Railroad, 146 Mo.. 572; Palmer v. Tel. Co., 91 Mo. App. 106; Hurst v. Railroad, 163 Mo. 322. (3) Plaintiff’s counsel in Ms argument assumes that there must have been a foreman in connection with the work in question.

— lion. J. H. Slover, Judge. (1) The court erred in denying the defendant’s right to prove its counterclaim and set-off by way of defense to the plaintiff’s cause of action. Gen. Stat. 1899, secs. 895, 4488; Lowrey v. Danforth, 95 Mo. App. 441; Trowein v. Calvird, 75 Mo. App. 570; Barber v. Baker, 70 Mo. App. 680; Bobb v. Taylor, 56 Mo. 311; Archer v. Ins. Co., 43 Mo. 434; Skinner v. Smith, 48 Mo. App. 91.

<p>1. INFANTS: Guardian Ad Litem. After tRe commencement of a suit against an infant and service of process on Rim, tRe suit sRould not proceed 'furtRer until a guardian is appointed to represent Rim.</p> <p>2. -: -: Motion to Set Aside Judgment. WRere a judgment Rad been rendered against a minor, charging Ris land with delinquent taxes, without the appointment of a guardian ad litem, Ris motion to set aside the judgment was the proper remedy and sRould Rave been sustained.</p>

— How. L. B. Wood-side, Judge. (1) The-common law does not require landowners to fence against cattle to recover for trespassing, but in Missouri no action can be maintained for trespass without a lawful fence. Heald v. Grier, 12 Mo. App. 556; 12 Am. & Eng. Ency. Law (2 Ed.), 1039. (2) No obligation rests upon a landowner to fence his lands or to even maintain a lawful fence, before he can drive off animals on his close.

— Ho». Frank R. Dearing, Judge. (1) Mere errors of law, or incorrect conclusions as to facts, do not of themselves constitute sufficient grounds for setting aside the award. But there must be provenmisconductof the arbitrators whichis calculated to prejudice the rights of the party complaining. There must be not merely an error of judgment, but an intention to do wrong. Bennet v. Russell, 34 Mo. 524; Newman v. Labeaume, 9 Mo. 30.

<p>1. PRACTICE: Reopening Case: Discretion of Court. Where the trial court at the close of the case made and filed its finding of facts, its refusal, the following day, to reopen the case and let in evidence of facts which the party offering it knew and could have testified to in the first instance, was proper exercise of discretion.</p> <p>2. -: Newly-Discovered Evidence: Diligence. Where a motion for new trial by a defendant on the ground of newly-discovered evidence showed by an accompanying affidavit that the witness relied upon for the new evidence had been a defendant in the case, but the suit as to him had been dismissed before the trial and that his knowledge of the facts was not communicated to the defendant filing the motion, until after judgment, no laches was shown in failing to discover such evidence before the trial.</p> <p>3. PRINCIPAL AND SURETY: Extension of Time: Discharge of Surety. The extension of time by the principal on a note which would discharge his surety from liability, must be for a valuable consideration and for a definite time; a mere promise of indulgence, though upon sufficient consideration, if for no certain time, does not release the surety.</p>

<p>Appeal from Jefferson Circuit Court. — Eon. Frank B. Bearing, Judge.</p>

<p>PRACTICE: Action on Account: Demurrer. A demurrer will not lie to a petition stating a cause of action upon a running account, made a part of the petition, on the ground that some of the items show the plaintiff is not entitled to recover on them, when the remaining items are proper matters to he stated in the account and entitle plaintiff to offer evidence in their support.</p>

— No». James T. Neville, Judge. (1) The contract sued on, between insurer and insured, contains an express limitation on the liability of defendant. It was agreed between the parties that if injury or death happened to the insured by reason of his voluntarily exposing himself to unnecessary danger, then the defendant should not be liable. The authorities all agree that the insurance company may thus limit its liability to pay. Bean v. Ins. Co., 50 Mo.

<p>Appeal from St. Louis City Circuit Court. — How. Walter B. Douglas, Judge.</p> <p>STATEMENT.</p> <p>The defendants, C. R. H. D'avis Real Estate Company and Royal Investment Company, are corporations organized under the laws of Missouri and are doing business in the city of St. Louis. At the organization of the Royal Investment Company, the Davis Real Estate Company subscribed for all its capital stock and subsequently distributed it, but the evidence does not show to whom. The place of business of both companies is in the same room. They have the same bookkeeper, and C. R. H. Davis is the president and manager of both companies. In 1899, plaintiff purchased a house and lot, in the city of St. Louis, upon which there was a deed of trust to secure a note for $2,500, the payment of which plaintiff assumed. The note was payable to the C. R. H. Davis Real Estate Company and was held by it at the time plaintiff made his purchase. The note bore interest at the rate of six per cent per annum from date and matured October 1, 1901. Before its maturity, the Davis Real Estate Company transferred it to the Royal Investment Company. Plaintiff testified that he did not know who was the holder of the note at the time he purchased the property and did not learn until about July 28, 1902. At the time plaintiff purchased the property, he placed it in the hands of the. Davis Real Estate Company with authority to collect the rents and at the same time counselled with Davis about the incumbrance. Plaintiff was fearful that he would not be able to pay the note at maturity and would lose the property. Davis promised to protect plaintiff and see that the deed of trust was not foreclosed in case plaintiff should be unable to pay the debt at maturity. The rents were collected by the Davis Real Estate Company and plaintiff deposited small sums of money with it from time to time. On August 12, 1902, defendants rendered a statement of the condition of plaintiff’s account which is as follows:</p> <p>“C. R. H. Davis Real Estate Co. and Royal In-"" vestment Co. (Corporations).</p> <p>To Stephen Treffinger, Dr.</p> <p>1902.</p> <p>August 1, To bal. as per statement received and account stated</p> <p>thereon.................$ 114.45</p> <p>“ 2, To rent collected for 1445 Carr</p> <p>Lane avenue............. 7.50</p> <p>“ 12, To cash paid on account...... 35.00</p> <p>“ 19, To rent'collected for 1445 Carr</p> <p>Lane avenue............. 20.00</p> <p>Sept. 1, To rent collected for 1445 Carr</p> <p>Lane avenue............. 16.50</p> <p>“ 16, To rent collected for 1445 Carr</p> <p>Lane avenue............. 21.00</p> <p>‘ ‘ 30, To rent collected for 1445 Carr</p> <p>Lane avenue............. 17-50</p> <p>$ 231.95</p> <p>1902.</p> <p>August 4, By cash paid by defendants for plaintiff on a certain negotiable promissory note, dated Oct. 1,1898, signed by Cuendet Real Estate Co., owned by</p> <p>defendants ..............$ 100.00</p> <p>“ 20, By cash paid interest on said</p> <p>$100 for 34 days.......... .60</p> <p>“ 30, By rent commission charged... .69</p> <p>Sept. 10, By amount paid St. Louis</p> <p>Plumbing Company ...... 2.95</p> <p>“ 30, By rent commission charged.. 1.36</p> <p>Oct. 1, By cash paid by defendants for</p> <p>plaintiff on a certain negotiable promissory note, dated Oct. 1,1898, signed by Cuendet Real Estate Company and owned by defendants...... 62.25</p> <p>By balance dne and owing plaintiff Stephen Treffinger, from above named defendants, O. B. H. Davis Beal Estate Company and Boyal Investment Company..... 64.10</p> <p>$ 231.95.”</p> <p>Plaintiff found a party willing to carry the loan at five per cent, and on October 3,1902, paid the Boyal Investment Company the balance of $1,688.75 then dne on the note, including $62.50 as commission for renewing the note. On taking up the note, plaintiff revoked the agency of the defendant for his property and demanded the payment of the balance of $64.10, as shown by the defendant’s statement of his account, dated August 12,1902. Defendants refused to pay this balance, and suit was brought for its recovery before a justice of the peace. Prom the justice’s court the case was taken to the St. Louis Circuit Court by appeal where, on a trial de novo, the jury, under the instruction given, by the court, rendered a verdict in favor of the defendants. Plaintiff duly appealed.</p>

<p>Appeal from Audrain Circuit Court. — Row. Houston W. Johnson, Judge.</p> <p>(1) Defendant’s demurrer to the evidence at the close of plaintiff’s case should have heen sustained for the reason that the plaintiff’s evidence discloses that he was injured as the result of his own negligence in attempting to board a moving car and especially was the injury the result of his own conduct, for after he discovered that the car would not stop, he continued his effort to get upon it and was thereby injured. Wait v. Railroad, 165 Mo. 612, 65 S. W. 1028; Beach on Con. Neg., sec. 37. (2) The plaintiff having adopted the written statements made by him and his witness Gottlieb, as to the facts of the accident, is bound by them. Taking the two together they show such a state of facts as would preclude the plaintiff’s recovery, for what the plaintiff says against himself, the law presumes to be true. State v. Hollenschiet, 61 Mo. 307; Nantz v. McPherson, 7 T. B. Mon. 597; Windsor v. Railroad, 45 Mo. App. 123. (3) The court erred in allowing plaintiff to introduce evidence as to the time in which the car could have been stopped. This was •brought out in the cross-examination of defendant’s witnesses. Before evidence of failure to stop the car in time to have averted the injury could have been admitted it must have been alleged, because that was the constituent element of the action, and without it there can be no cause of action. Moore v. Railroad, 176 Mo. 544, 75 S. W. 672; Waldhier v. Railroad, 71 Mo. 514; Zurfluh v. Railroad, 46 Mo. App. 636. (4) Plaintiff’s petition states two separate causes of action in separate counts. These separate counts are not merely the same cause of action differently stated. The verdict is general, and the defendant was entitled 'to a verdict on one count or the other. This point was properly raised by a motion in arrest, which the court overruled.' Wells v. Adams, 88 Mo. App. 215.</p> <p>(1) This court has decided on a former appeal of this case that the question of contributory negligence was for the jury. Leu v. Transit Co., 106 Mo. App. 329, 80 S. W. 273. (2) The allegations in second count of plaintiff’s petition are sufficient. Any defect therein is cured by the verdict. Seamell v. Transit C'o., 103 Mo. App. 514, 77 S. W. 1021; Hurst v. Ash Grove, 96 Mo. 168, 9 S. W. 631; Bowie v. Kansas City, 51 Mo. 254; Gerber v. Kansas City, 105 Mo. App. 717, 79 S. W. 717; Robinson v. Ins. Co., 80 S. W. 9; Duneke v. Beyer, 79 S. W. 209; McKinstry v. Transit Co., 82 S. W. 1108.</p>

— Hon. William N. Evans, Judge. The only issue in this case is the agreement or contract between the parties. . The appellant says he purchased all the fees that might be received for both the March and September terms, and respondent says he sold only the fees of the September term. If there was no written contract, then the issue woiild be settled by parol testimony.

<p>1.SALES: Warranty of Quality: Inspection by Purchaser. As a general rule there can he no recovery on a warranty in the sale of chattels for a perfectly obvious defect which the purchaser had an opportunity to observe, nor for a defect known to the purchaser.</p> <p>2. -: -: -. But if the purchaser had no opportunity to inspect before purchase, and relied on the warranty, he is protected by the warranty, even though the defect could have been discovered by inspection.</p> <p>3. -: -: -. Where mules were sold with a warranty as to their age and soundness, in an action by the purchaser for breach of the warranty, evidence that the plaintiff, before the purchase, inspected the mules, would warrant the inference that he noticed the defect, and in that event he could not recover.</p> <p>4. -: -: Evidence: Harmless Error. And in such an action, the handbills advertising the sale were improperly admitted in evidence, but the error was harmless where the only representation of the handbills was as to the age of the mules and the defendant admitted that he represented them to be of the age mentioned in the handbills.</p> <p>5. -: -: -. And where it was shown that the plaintiff gave a note for the purchase price of the mules and on discovery of the defect, notified some bank not to purchase the note, that action would not prevent a recovery on the warranty.</p> <p>6. -: -: Measure of Damages. In an action on a breach of warranty in the sale of mules, the measure of damages is the difference between what the mules would have been worth, as represented, at the time and place of sale, and what they actually were worth.</p>

Louis City Circuit Court. — Eon. Daniel G. Taylor, Judge. (1) The circuit court is vested with all the jurisdiction and power that a court of chancery ever had in partition suits. Holloway v. Holloway, 97 Mo. 628, 11 S. W. 233; Saving Inst. v. Collonious, 63 Mo. 290’; Spitts v. Wells, 18 Mo. 468; Pratt v. Clark, 57 Mo. 1891; Stewart v. Caldwell, 54 Mo. 536.

— Hon. Henry G. Riley, Judge. (1) We are of tbe opinion that upon tbe record in this case as already presented that tbe report of tbe referee was in tbe nature of a verdict of a jury. And if the report has been confirmed by the court, then judgment could have been rendered thereon in the same manner and with like effect as upon a special verdict.

— Hon. David H. Eby, Judge. (1) Tlie Illinois Aet which is the basis of this suit is a penal statute, a police regulation. Railroad v. Warrington, 92 111. 157; Railroad v. Jacksonville, 67 111. 37; Railroad v. Russell, 115 111. 52. (2) It is held by the courts both of Missouri and of Illinois that penal statutes are local and not enforceable outside of the jurisdiction enacting them. ■ Kimball v. Davis, 52 Mo. App. 212; Tel.

Ripley Circuit Court. — Hon. Jas. L. Fort, Judge. (1) Section 5959, Revised Statutes 1899, gives a direct and specific power to cities of the fourth class to “regulate” and “restrain” cattle from running at large within their corporate limits, and authority to enforce such powers by impounding such cattle, and also providing penalties for the owners who shall permit such cattle to run at large in violation of such restrictions.

Jefferson Circuit Court. — Eon. Frank R. Bearing, Judge. (1) No payment having been made by defendant Herrington on tbe note in suit witbin ten years prior to the date of the institution of plaintiff’s suit, there can be no recovery. R. S. 1899, sec. 4294; Maddox v. Duncan, 143 Mo. 613, 45 S. W. 688; Regan v. Wiliams, 88 Mo. App. 577; Corbyn v. Brockmeyer, 84 Mo. App. 653. (2) Nor can defendant Herrington be held liable upon an acknowledgment of tbe debt.

— Row. Samuel Davis, Judge. STATEMENT. The defendant, Add Pope, was jointly indicted with one J. D. Thurman at the April term, 1904, of the circuit court of Ripley county for selling intoxicating liquors in less quanity than three gallons without taking out license as a dramshop keeper.

— IIon. II. G. Pepper, Judge. It was not necessary that the abstract set ont the orders extending the time, it was sufficient to merely state their substance as this one does. Ricketts v. Hart, 150 Mo. 64, 51 S. W. 825.

— Ho». Leigh B. Woodside, Judge. (1) The court should have directed an acquittal, because the county court record is sufficient to change the road. All jurisdictional facts sufficiently appear somewhere in the proceeding. Sutton v. Cole, 155 Mo. 206, 55 S. W. 1052. (2) The findings and judgment of the county court are not open to collateral attack and its judgment is entitled to every presumption in its favor. Baubie v. Ossman, 142 Mo. 499, 44 S. W. 338.

— Rom. Henry G. Riley, Judge. (1) The court erred in giving, of its own motion, instruction numbered one. This instruction is identical with instruction numbered 4, offered by defendant and refused by the court in the form offered. The court, against objections of the defendant, added to said instruction numbered 4, the words “as full payment” after the word “accepted” and gave the instruction as modified. Robinson v. Railroad, 84 Mich. 658>; Perkins v. Headley, 49 Mo.

<p>Appeal from Stoddard Circuit Court. — Ho». J. L. Fort, Judge.</p> <p>(1) The court should have sustained the defendant’s demurrer to the evidence. It devolves on the plaintiff to prove that the colt came upon the railroad track at a point not enclosed by lawful fence; that it was frightened by a locomotive or a train of cars belonging to the defendant; that in consequence- of such fright it ran into or against a fence or some other object (hut in the case at bar it was alleged that it was a fence), and injured, which they wholly failed to prove in this case. . Therefore, the court erred in refusing defendant’s demurrer to the testimony. Perkins v. Railway, 103 Mo. 52, 15 S. "W. 320; Geltz v. Railroad, 38 Mo. App. 579. (2) Plaintiff must allege and prove that the stock (in this ease the colt) was injured in the township in which the suit was brought, or in an adjoining township. Briggs v. Railroad, 111 Mo. 175, 20 S. W. 32.</p>

<p>Appeal from Madison Circuit Court. — No». Robert A. Anthony, Judge.</p>

<p>SALES: Muniments of Title: Conclusion of Law. Where the right of a party asserting title to property rests on authenticated documents, and no fact is proven to cast doubt on the good faith of the transactions which led to the execution of the documents as muniments of title, their effect is a conclusion of law.</p>

Louis City Circuit Court. — How. James B. Kinealy, Judge. STATEMENT. The plaintiff, a colored train porter, then in employ of the Chicago & Alton Railway Company, brought this action for damages consequent on injuries inflicted upon him by a watchman of defendant in attempting to eject plaintiff from a car of which he was in charge, belonging to the Chicago & Alton Railway Company, while it was lying in the terminal yards of defendant, on the night of February 6, 1903.

— Row. Henry C. Riley, Judge. (1) The court erred in overruling the demurrer to the evidence offered by defendant at the close of the. State’s testimony. State v. Lentz, — Mo. —, 83 S. W. 970; State v. Heckler, 81 Mo. 417; State v. Kurtz, 64 Mo. App. 123.

— Hon. Henry G. Riley, Judge. In this case no attempt was made to introduce the license, if any was in existence; hut the State relied solely on secondary evidence, which evidence is not admissible in any case until the primary evidence is shown to he lost, or not within reach of the court. State v. Heckler, 81 Mo. 417; State v. Kurtz, 64 Mo. App. 123; State v. Harmon, 106 Mo. 635, 18 S. W. 128. (1) The information in this case is sufficient.

— Hon. F. B. Bearing, Judge. (1) To justify a recovery under the provisions of the statute, the stock injured must have been frightened by a locomotive or train. The car operated by defendant’s employee was neither. R. S. 1899, sec. 1106; Perkins v. Railroad, 103 Mo. 52, 15 S. W. 320; Briggs v. Railroad, 111 Mo. 168, 20 S. W. 32. (2) The statute in question must be strictly construed.

— Hon. Henry G. Riley, Judge. (1) The building by defendant of a solid embankment across the bayou mentioned, which was the natural and only drainage for a large scope of country, said bayou being a natural watercourse, and without preparing other means of damage was negligence per se, and the plaintiff was entitled to have his case submitted to the jury on the correct principles of law. Railway v. Shaw, 56 L. R. A. 341; Jones v. Railway, 18 Mo.

<p>Appeal from Washington Circuit Court. — Bow. Frank B. Dearing, Judge.</p> <p>(1) Under the evidence in the case the decree should have been for defendants. Biddle v. Mc-Donough, 15 Mo. App. 542; Hollman v. Conlon, 143 Mo. 378/45 S. W. 275; Tool Co. v. Spring Co., 93 Mo. App. 540, 67 S. W. 967; Strohmaier v. Zeppenfeld, 3 Mo. App. 430; Amot v. Alexander, 44 Mo. 27; St. Louis v. Gas Light Co., 70 Mo. Ill; Transportation Co. v. Lansing, 49 N. Y. 499. (2) A lessee has no right to demand the renewal of a lease in the absence of an express contract. Usually the option to select the alternative is with the lessor. 18 Am. and Eng. Enc. of Law, 631; Baman v. Binger, 65 Hun (N. Y.) 39; Smith v. Church, 107 N.Y. 610; 18 Am. and Eng. Enc. Law, 693. (3) At the time of the assignment to plaintiff, there was less than two years of the original leasehold term, and the lease was, therefore, not assignable without the written assent of defendant Connolly. R. S. 1899, sec. 4107; McCartney v. Auer, 50 Mo. 395; Bank v. Clavin, 60 Mo. 559.</p> <p>(1) The lease must be construed all together. It was a lease for five years with the option to the lessee or his assigns to renew the lease at its expiration. This covenant to renew was firmly binding and was one of the considerations for which the lessee paid the rent agreed upon. The covenant to renew a lease meant a renewal upon the same terms as the original lease. 18 Am. and Eng. Enc. of Law (New Ed.), 687, sec. D; 18 Am. and Eng. Enc. of Law (New Ed.), 695, sec. 0; Lewis v. Stephenson, 78 Law Term Rép. 165. (2) It is a universally recognized rule, that a court of equity will compel specific performance by the lessor of his covenant or agreement to renew the lease, and where the right of the lessee to a renewal cannot be set up in a court of law in defense of an action for possession by the lessor, the court will restrain the lessor from continuing the proceeding for possession, pending the action for specific performance. Blackmore v. Board-man, 28 Mo. 420; Arnot v. Alexander, 44 Mo. 25; Strohmaier v. Zeppenfeld, 3 Mo. App. 420; Ridgley v. Still-well, 28 Mo. 400; Clemens v. Knox, 31 Mo. App. 190; 18 Am. and Eng. Enc. of Law (New Ed.), 695'; Finney v. Cist, 34 Mo. 303; Greenwald v. Schaales, 17 Mo. App. 324. .(3) The fact that the lease has been assigned does not affect the right to specific performance neither does the fact that Joseph Connolly is dead render any less the liability of his devisee, Francis X. Connolly, upon the lease. Defendants herein recognized the assignment of the lease to the plaintiff. “Equity binds privies as well as parties. Equity binds executors, heirs, personal representatives, assignees and all privies and parties in interest as well as the original principals.” 22 Am. and Eng. Enc. Law (Old Ed.), 934, sec. 3, and case cited therein. (4) An unilateral contract for the purchase of land signed only by the party to be charged therewith is enforcible in equity. Smith v. Wilson, 160 Mo. 657, 61 S. W. 597; Ins. Co. v. Bank, 5 Mo. App. 336, 71 Mo. 58. (5) The lease in question was assignable. Donovan v. Brewing Co., 92 Mo. App. 341. The covenant to renew the lease runs with the land. Defendant cannot question the assignment. Tool Co. v. Spring Co., 93 Mo. App. 530, 67 S. W. 967; McClintock v. Joyner, 77 Miss. 680.</p>

— Eon. N. M. Shelton, Judge. Buster v. Railway, 18 Mo. App. 578. (1) They (servants of the railroads) are expected to have their eyes open, and in the vicinity of road crossings, situated as these were, it is their duty to look out and see if stock are on or about the same.' Spencer v. Railroad, 90 Mo. App. 91. (2) The fact that the cow left the crossing and was killed some distance therefrom '-will make no difference: ‘ Hill v. Railroad, 49 Mo.

— Eon. John P. Butter, Judge. (1) The court erred in the admission of evidence. Speer v. Burlingame, 61 Mo. App. 75; Collins v. Todd, 17 Mo. 537; Tucker v. Frederick, 28 Mo. 574. (2) The demurrer to the evidence at the close of plaintiff’s case, as also defendant’s instruction of a like nature should have been sustained and given, and in their refusal the court erred.

Clay Circuit Court. — Ho». J. W. Alexander, Judge. (1) In the present state of the decisions in this State there can be no question that unless the issuance of the warrant to plaintiff is a ratification of his claim by the city he has no grounds whatever for recovery. Crutchfield v. Warrensburg, 30 Mo. App. 456.

— How. A. D. Burnes, Judge. (1) Tbe court erred in overruling defendant’s objections to tbe testimony of tbe plaintiff as to conversations between bimself and William Dice. Also in permitting plaintiff’s witness Dice to testify to conversations with plaintiff. O’Neil v. Crain, 67 Mo. 250; Hall v. Jennings, 87 Mo. App. 634. One objection to that class of testimony was sufficient. Scbierbaum v. Scbemme, 157 Mo. 1; Krueger v. Railroad, 94 Mo. App. 458.

'Appeal from Lafayette Circuit Court. — Hon. Samuel Davis, Judge. (1) The demurrer to the evidence at the close of respondent’s case ought to have been sustained. This case is almost identical with that of Watson v. Coal Co., 52 Mo. App. 366. This doctrine is repeated and confirmed also by this court in Marshall v. Hay Press Co., 69 Mo. App. 256.

— Ho». Argus Cox, Judge. (1) Before there can he a fraudulent conveyance the following conditions must exist, (a) The thing disposed of must be of value out of which the creditor could have realized all or part of his claim, (b) It must be transferred or disposed of by the debtor, (c) This must be done with intent to defraud. Wait on Fraudulent Conveyances, sec. 15, p. 27; Hart v. Leete, 104 Mo. 315; State v. Bragg, 63 Mo. App. 27.

— How. E. P. Gates, Judge. (1) The condemnation of mortgaged real estate has the effect of foreclosing such mortgage on the date of the confirmation by the circuit court of the jury’s verdict. In re City of Rochester, 136 N. Y. 89; Ins. Co. v. Smith, 35 N. Y. 301.

— No». W. B. Teasdale, Judge. (1) That portion of instruction numbered 1, given for respondent, whereby the jury was told that the city was bound in law to “securely” and “safely” bind the different sections of the sidewalk together, so that it would be safe, was erroneous. It required absolute unqualified safety. The city is only bound to keep its sidewalks reasonably safe. Smith v. Brunswick, 61 Mo. App. 578; Wallis v. Westport, 82 Mo.

— Ho». James Gibson, Judge. (1) The petition being based upon an express contract for a fixed and definitely agreed price to be paid by defendant for services rendered by plaintiff, it was error for tbe court to refuse to give the jury the instruction numbered 1 as prayed by plaintiff. Winter v. Railroad, 73 Mo. App. 194, 160 Mo. 159; Griffith v. Creighton, 61 Mo. App. 4; Brown v. Baker, 99 Mo. App. 660; Deu’tmann v. Kilpatrick, 46 Mo. App. 29'; K. B. Co. v. Schoennau, 32 Mo.

— Hon. J. H. Stover, Judge. (1) It is only where a purchaser is found who is willing, able and ready to take the land or able to respond in damages if he fails, that the agent is entitled to recover commissions. Hayden v. Grillo, 35 Mo. App. 647; Finch v.' Trust Co., 92 Mo. App. 271; Gelatt v. Ridge, 117 Mo. 553; Childs v. Litchfield, 66 Mo. App. 422.

— Ho». George F. Longan, Judge. (1) The court erred in finding for plaintiff and making an allowance to her out of her husband’s estate. Under the deed of separation, shown by evidence, she is precluded and estopped from claiming anything out of her husband’s estate. A deed or a contract of separation, by which the estate of the husband is divided, and a provision for the wife is made, is supported by a sufficient consideration is not against public policy.

— Eon. Geo. F. Longan, Judge. (1) The contention of the defendants in error is that the notice of appeal was not sufficient. We contend that said notice was amply full and sufficient, and it conformed to the following requisite, (a) It was in writing and described the case fully and gave the date upon which judgment was rendered against plaintiff. R.. S. 1899, sec. 4074; Tiffin v. Millington^ 3 Mo. 418; Fagan v. Separator Co., 92 Mo. App. 236; Celia v. Schnairs, 42 Mo.

— Eon. R. J. Tucker,Special Judge. (1) This suit is not brought under sections 4525, 4542, Revised Statutes 1899. (2) There is nothing in the case justifying the conclusion that this proceeding is designed to meet the requirements of sections 4565, 4571, Revised Statutes 1899: (3) This is not a bill to perpetuate testimony. 1 Greenleaf on Ev., sec. 325; 3 Greenleaf on Ev., sec. 325; 16 Ency. of Plead, and Prac., 353-359; 2 Story’s Eq.

— Hew. Hugh C. Dabbs, Judge. (1) Having specifically alleged just what acts of negligence caused the injuries complained of, plaintiff must he confined to the negligence pleaded, and, therefore, cannot prove something not among those named. Ely v. Railroad, 77 Mo. 34; Bohn v. Railroad, 106 Mo. 434; Cunningham v. Journal Co., 95 Mo. App. 47; Garven v. Railroad, 100 Mo. App. 621; Lien v. Railroad, 79 Mo. App. 475; Gro. Co. v. Railroad, 89 Mo.

— Hon. J. D. Perkins, Judge. (1) The petition of plaintiff in its allegation, is not sufficient to authorize the introduction of any evidence as to the kind, character and extent of his injuries, if any. R. S. 1899', sec. 592. (2) A plaintiff must state the facts constituting his cause of action. ITe cannot state one and prove another, nor if he states none, can he supply the defect by evidence at the trial.

— Ho». Hugh C. Dabbs, Judge. (1) Not having been made a party, nor served with notice to appear and defend the dower suit, the defendant was not in any way affected by the judgment. Plaintiff, therefore, had no right to recover any part of the money paid in extinguishment of the dower interest. Walker v. Deaver, 79 Mo, 664; Leet v. Gratz, 92 Mo.

— Row. J. D. Perkins, Judge. Section 8820, R. S. 1899: “In case of death a right of action shall accrue to, . . . or to any person or persons who were before such loss of life dependent for support on the person killed, for a like recovery of damages.” (2) Section 8822 provides that the owner, agent or operator of any mine shall keep a sufficient supply of timbers when required, to be used as props'so that workmen may, at all times be able to properly secure said workings…

— Ho». Wm. L. Jarrott, Judge. (1) Plaintiff’s instruction numbered 1 does not require the jury to find that a sufficient time had elapsed before the injury (and after notice actual or construetive) for the defendant by the exercise of ordinary care to have repaired the walk where plaintiff claims to have fallen. Baker v. Independence, 106 Mo. App. 507, 81 S. W. 501; Gerber v. Kansas City, 105 Mo. App. 191, 79 S. W. 718; Richardson v. Marceline, 73 Mo.

— No». Wm. L. Jarrott, Judge.. (1) Plaintiff’s instruction numbered 5 is erroneous. Under its language, if a sidewalk became not reasonably safe, and the city failed to repair it within a reasonable time thereafter, and a person was injured by reason of such condition, the city is liable, without regard to whether a reasonable time to repair it had passed before the injury was received. That is clearly not the law.

— Hon, J. E. Uazell, Judge. (1) The court erred in overruling the defendant’s ■objection to require plaintiff to make her petition more ■definite and certain. In truth, a demurrer might well have been lodged against it. There can be no doubt but that it should have been made more definite and certain. 'Gurley v. Railway, 93 Mo. 445; 1 McQuillen, Pleading and Prac., sec. 280; Bedell v. Alexander, 8 Mo. App. 110; G-amage v. Bushell, 1 Mo.