Volume 111 — Missouri Appeal Reports

James E. Easell, Judge. (1) It was gross error to permit 'the plaintiff to introduce the rebutting evidence of Peter Porter, James Campbell and Thomas Newkirk, jurors in the case of Ada M. Estes against the Missouri Pacific Railway Company, tried a week before, to contradict the evidence of C. C. Crews and S. C. McVey, witnesses, for the defendant. The stenographer’s notes of the evidence of these witnesses, properly transcribed and testified to by him, was the best evidence.

— How. J. W. Alexander, Judge. (1) The court erred in instructing the jury in the first instruction given on part of plaintiff, that if they found from the evidence that defendant assaulted plaintiff, plaintiff was prima facie .entitled to recover without instructing the jury that the plaintiff must establish that fact by a preponderance of the evidence and that the asault was an unlawful one. Orscheln v. Scott, 90 Mo. App. 366.

— Ho». A. M. Woodson, Judge. (1) We cite the following authorities in support of our contention that the demurrer asked for by the defendant should have been given.

Schuyler Circuit Court. — Ho». N. M. Shelton) Judge. (1) There were no exceptions taken and saved at the time by defendant to plaintiffs’ instructions. Exceptions must he taken to the giving of instructions at the time they are given. Blashfield ón Instructions to Juries, p. 825, secs. 368 and 369; State v. Meyers, 99 Mo. 107; State v. Rarnbo, 95 Mo. 462; State v. Woodward, 171 Mo. 593; Lefkow v. Allred, 54 Mo. App; 141; State v. Hayden, 61 Mo.

— Sim James E. Eazell, Judge. (1) -Appellant’s demurrer to plaintiff’s petition should have been sustained, and in support thereof the following authorities are cited: Laws 1893, sec. 108, p. 90, now sec. 5858, R. S.-1899; Laws 1893, sec. 31, p. 71, now sec. 5781, R. S. 1899; R. S. 1889, sec. 3157, now sec. 6759, R. S. 1899; Dillon’s Municipal Corporations (1 Ed.), ch. 14, secs. 383-84, pp. 377-78; Schell City v. Rumsey, 39 Mo. App. 264;'Mister-v. Kansas' City, 18 Mo.

— Hon. Hugh C. Dabbs, Judge. (1) The evidence in this case shows conclusively that the appellants were-holding the note in controversy under an express contract made with the respondent, as all the evidence shows that they refused to mahe any extension of the Randall note and were about to proceed to collect their money on the same when the respondent paid to them four dollars and sixty-five cents, and they agreed to hold the note for him that they had received from Randall…

Hugh G. Dabbs, Judge. (1) The trial court should have sustained the motion in arrest of judgment. There are five defendants in the suit, four of them were not mentioned in the finding and decree of the court. A decree must dispose of the rights of all the parties to- the- suit, McCord v. McCord, 77 Mo. 166; Ferguson' v. Thacker, 79 Mo. 511; Caulfield v. Parish, 24 Mo. App: 110. (2) The plaintiff in his petition declares on one state of facts and recovers on another.

— Hon. Wm. A. Davidson, Judge. (1) If all that defendant pleads is true, he cannot recover. An agreement to give at one’s death leaves the title at the time in the donor; and the title passes to the administrator. Tye v. Tye, 88 Mo. App. 330; Blount v. Harney, 43 Mo. App. 649. (2) The position of the appellant is supported by following cases. Becraft v. Lewis, 51 Mo. App. 547; McMillan v. Wacker, 57 Mo. App. 220; State ex rel. v. Moore, 18 Mo.

— Hm Hugh C. Dabbs, Judge. (1) That under the facts stated in the answer, and made by the pleadings, it was shown that this was . not the same as an ordinary sale of goods for the reason that in most every other line that can be suggested, the defendant could continue to sell what remained after the plaintiff ceased to sell him, though he could not purchase any more of the same article, but not so with these mixed paints; unless plaintiff would continue to furnish him the…

— Ho». J. D. Perkins, Judge. (1) Instruction numbered 1 given at tbe request of Brintlinger and Hodge does not properly, declare tbe law. Tbe contract and evidence show that tbe operation of tbe mine was a joint venture to be conducted on joint account, tbe net profits wbicb were to be equally divided between Scott on tbe one band and Brintlinger and Hodge on tbe other.

— Jío%. W. W. Graves, Judge. (1) In an action for damages based on fraudulent representations in tbe sale of a chattel, the scienter is the gist of the action and plaintiff cannot recover without proving it. Remedy Co. v. White, 90 Mb. App. 498; Fenwick v. Bowling, 50 Mo. App. 516; Bank v. Buyers, 139 Mo. 627; Cement Co. v. Stewart, 103 Mo. App. 182.

<p>Error to Jackson Circuit Court. — How. J. E. Slover, Judge.</p>

— No». Andrew F. Evcms, Judge. (1) There is no liability of defendant niider the facts shown by the testimony. Especially is this trne in view of the fact that by the terms of the tenancy the tenant was to make all repairs, if any should be needed.

— -No». ¡S'. C. Douglass, Judge. (1) Partnership property is joint property and each, partner is possessed of all of the firm’s property per my et per tout and each partner has a joint interest in the whole and not a separate interest in any particular part of partnership property. 22 Am. and Eng. Ency. Law (2 Ed.), 95; Hyde v. Moxie Co., 160 Mass. 550; Dewey v. Carey, 60 Mo. 224; .Henry v. Township, 70 Mo. 500; Parke v. Richardson, 85 Mo. App. 192; White v. Dyer, 81 Mo.

— Ho». George F. Longcm, Judge. (1) The statement was an itemized account. No formal pleadings are required before a justice of the peace. All that is required is that the plaintiff should file a statement of tlie account. R. S. 1899, sec. 3852; Doggett v. Blanke, 70 Mo. App. 499; Wilkinson v. Ins. Co., 54 Mo. App. 661. (2) The party with whom the contract is made is a proper party plaintiff, although the contract was made for the benefit of a third party.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. STATEMENT. On August 15, 1903 while plaintiff was driving bis one-horse wagon north on Fourth street, in the city of St. Louis, his wagon was struck by one of defendant’s street cars travelling south on said street. The wagon was overturned and plaintiff was thrown to the ground and severely bruised and injured. The suit is to recover the damages that accrued from the injury.

— Hon. H. W. Johnson, Judge. (1) The court erred in admitting evidence of the habit or custom of cattle and “stock” as to running on defendant’s road. Ashby v. Gravel Road Co., 99 Mo. App. 178, 73 S. W. 229. (2) The court erred in his verbal declaration of law that the presence of “stock” unattended on the road was evidence of negligence on defendant’s part and that defendant must keep the road clear. Even if written it would have been error. Wright v. Richmond, 21 Mo.

<p>,1. BUILDING CONTRACT: Breach of Contract by Owner. A building contractor cannot defeat an action on his bond given to secure the owner against liens, on the ground that the owner had violated his contract in making payments to the contractor at the latter’s request.</p> <p>2. -: Sureties on'Bond. Sureties on a bond given by a building contractor to secure the owner against liens cannot be held for failure to discharge such liens on the part of the contractor, where the owner, in violation of the contract, made final payment to the contractor without requiring receipts in full for all labor and material furnished.</p>

<p>Appeal from Lincoln Circuit Court. — Hon. Houston W. Johnson, Juclge.</p>

— Son. W. N. Evans, Judge. (1) It devolved upon appellants to show a full compliance with the terms of the contract on its part before it was entitled to recover. Having failed in this, the demurrer to appellants’ testimony should have been sustained. Freeman v.' Aylor, 62 Mo. App. 613; Billups v. Daggs, 38 Mo. App. 367.

— Hon. Houston W. Johnson, Judge. (1) The United States Circuit Court had jurisdiction over the subject-matter involved in tbe suit of Cow-den' v. Phoenix B. & L. and tbe parties thereto; tbe said Cowden being a citizen of tbe State of Iowa, tbe defendant being a citizen of tbe State of Missouri and tbe amount in dispute exceeding tbe sum of two thousand dollars. Act of 1887-1888, 24 U. S. Stat. at L. 552, c. 873. secs. 1, 2; 25 U. S. Stat. at L. 443, c. 866, secs. 1, 2.

— Hon. H. W. Johnson, Judge. (1) At the close of the plaintiff’s case, the demurrer to the evidence should have been sustained. Smith v. Railway, 69 Mo. 32; Bowen v. Railway, 95 M'o. 274; Cagney v. Railway, 69 Mo. 416; Fugler v. Bothe, 117 Mo. 475, 22 S. W. 1113; Steinhauser v. Spraul, 127 Mo. 562, 28 S.- W. 620, 30 S. W. 102; Epperson v. Tel. Co., 155 Mo. 346, 50 S. W. 795, 55 S. W. 1050; Minnier v. Railway, 167 Mb. 112, 66 S. W. 1072; Stalzer v. Packing. Co., 84 Mo.

— Hem. B. L. Wilson, Judge. (1) The action of the trial court in sustaining'motion of defendant to expunge and hold for naught the records of the circuit court, at a subsequent term to which said records were entered, was a serious error. Weber y. Schmeisser, 7 Mo. 600; Lattrielle v. Dorlique, 35 Mo. 233; Johnson y. Kerhoff, 35 Mo. 291.

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

— Hon. E. R. McKee, Judge. In a long unbroken line of decisions in both the Supreme Court aud appellate courts of this State it has been held and ruled that it is not only the prerogative, but it is the peculiar and special duty of trial courts to grant new trials when the verdict is arbitrary and manifestly wrong, or when the verdict appears to be the result of passion, prejudice, or misconduct.. Friedman v. Pub. Co., 102 Mo.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) It is well settled law in this and other States that the acts of a corporation may be proved by the testimony of witnesses in the same manner as the acts of individuals. Taussig v. Railway, 166 Mo. 32, 65 S. W. 969; Hotel Co. v. Newman, 30 MA 118; Bank v. Gilstrap, 45 Mo. '419; Bank v. Coal Co\, 86 Mo. 125; Bank v. Fricke, 75 Mo. 184; Cook bn Corporation (4 Ed.), Vol. 2, Sec. 714; Allis'v. Jones, 45 Fed.

Wayne Circuit Court. — Hon. Frank II. Bearing, Judge. The court erred in giving instruction numbered 2 for plaintiff. This instruction is not the law. It wholly leaves out a fact which was clearly established beyond dispute, that the switch or spur in question was intersected by a public road and public crossing. Wright v. Railroad, 56 Mo. App. 373.

— Hon. Jas. L. Fort, Judge. (1) Where it is sought to recover treble damages for trespass to land, in the taking and removal of articles therefrom, it should be alleged in the petition that the defendant had no interest or right in the articles taken or removed, or that the same were taken from lands not his own. One or the other of these allegations is imperative. Hewitt v. Harvey, 46 Mo. 368; Pitt v. Daniel, 82 Mo. App. 168.

Louis City. Circuit Court. — Hon. O’Neill Ryan, Judge. (1) The demurrers to the plaintiff’s evidence and to all the evidence should have been sustained because-it is shown conclusively that plaintiff could have seen and heard the approach of the car, had he looked and listened, and, by the exercise of ordinary care, could have avoided the collision. He was guilty of such negligence as bars his recovery.

<p>1. DRAMSHOP KEEPER: Selling Liquor on Sunday: Instruction to Bartender. In the prosecution of a dramshop keeper for selling intoxicating liquor on Sunday, where the evidence showed that the liquor, beer, was sold by the defendant’s bartender and that he had instructed all his bartenders not to sell liquors on Sunday, hut had made no effort to see that such instructions were observed, and that it was customary for his bartender to scrub out the saloon, and for his family to get water from the saloon on Sunday, it was a question for the jury as to whether the defendant instructed his bartender in good faith or connived at the selling.</p> <p>2. -: Evidence. Evidence of an attempt on the part of the defendant, made two or three years before the offense was said to have been committed, to get the saloon keepers of the town to agree not to sell beer by the can, was incompetent and it was prejudicial error to admit it.</p> <p>3. -: -. Evidence that the defendant did not instruct his bartenders not to sell beer by the can, when his own evidence showed that selling beer by the can was had for the community’s welfare, was incompetent and it was prejudicial to admit it.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Petitioner was a competent witness in her own behalf. Petitioner was offered as a witness on the trial to prove her status and the fact of her marriage with Mr. Imboden; and wa-s excluded by the court. Under the statute to show the marriage, petitioner is a competent witness to prove the fact of her marriage with deceased. Marriage is a status.

— Hon. L. B. Wood-side, Judge. (1) Tbe payment of a part of an ascertained debt is not a bar to an action for tbe balance tbougb it was .accepted in full of sucb debt,… Held: and for such other and further relief as in equity and justice he may be entitled to.” The answer admitted the rendition of the judgment, in the Shannon Circuit Court, against the plaintiff and in favor of defendant herein, as alleged in the petition, and denied all other allegations therein contained.

— Hon'. J. L. Fort, Judge. In treating of the effect of a dismissal of a suit •against one partner and taking judgment against the other, Mr. Parsons lays down the rule in the following language: “And a judgment obtained against one partner, whether the other be ostensible or secret, discharges the firm from liability to be sued for the same debt.” Parsons’ Law on Contracts, 2 Ed., chapter 6, star, page 107; Freeman’s Law of Judgments, 2 Ed., section 232; Hill et al. v. Bell…

<p>1. APPELLATE PRACTICE: Bill of Exceptions: Record: Affidavit. The record proper must show the filing of a bill of exceptions within the time granted and the extension of such time cannot be shown by affidavit or recital in the bill itself.</p> <p>2. -: Answer: Abstract: Brief. Though the record shows an answer which is sufficient to defeat, the action is uncontroverted, yet where it also appears from the record proper as well as appellant’s brief that the trial proceeded on the assumption that the facts alleged in the answer were in issue the appellate court will so'treat it.</p>

— Son. James Gibson, Judge. (1) The court erred in the admission of evidence offered by plaintiff, (a) The allegations in the petition were specific and the evidence was not confined to the same. Ravenscroft v. Railway, 27 Mo. App. 617,- Mc-Manamee v. Railway, 135 Mo. 447; Chitty v. Railway, 148 Mo. 75; Bartley v. Railway, 148 Mo. 139; Oglesby v. Railway, 150 Mo. 177; Raming v. Railway, 157 Mb. 506; Feary v. Railway, 162 Mo. 96; Hesselbach v. St. Louis, 179 Mo. 524.

— Hon. Shannon G. Douglass, Judge. (1) What is the measure of damages? A breach of contract without any damages resulting therefrom gives no cause of action except, perhaps, for nominal damages. In this ease these cannot exceed the price paid by Harper to defendant for sending the telegram to Sherman. Strahorn Oo. v. Tel. Co., 101 Mo. App. 500.

<p>1. RECEIVERS: Creditors: Usury: Tender of Debt. A receiver represents the creditors and the debtors, being trustee for all having an interest in the fund, and he may maintain an action to release the fund from a lien of a usurious mortgage without offering to pay the sum secured.</p> <p>2. -: -: -: Statute. The statute makes invalid at the instance of borrower or creditor a "mortgage marked with the vice of usury; and the usurious creditor cannot predicate rights upon a lien that never existed.</p> <p>3. Equity: Penalty: Usury: Legislative Power. Interest is the creature of statute and peculiarly under the control of the Legislature, and for equity" to impose conditions practically refusing to enforce a penalty for usury is equivalent to an invasion of the rights of a co-ordinate branch of government.</p>

■Appeal from Jackson Circuit Court. — Son. Shannon C. Douglass, Judge. (1) The defendant made timely objection to tbe introduction of any. evidence on tbe ground tbat tbe petition does not state facts sufficient to constitute a cause of action. Anderson v. Box Co., 103 Mo. App. 382; Lucey v. Oil Co., 129 Mb. 32; Bradley v. Railway, 138 Mo. 293.

<p>Appeal from Carroll Circuit Court. — Hon. John P. Butler, Judge.</p> <p>(1) This is an action in equity, seeking to* enforce an attorney’s lien on funds. Such an action will not lie. Fromme v. Guaranty Co., 78 N. Y. Supl. 895; Young v. Renshaw, 102 Mo. App. 173. (2) No attorney, asserting an equitable lien, should be heard or permitted to say, as a basis of his claim, that contracts and pleadings, which he drew, were filled with falsehoods. To so permit would violate the maxim of equity which is time honored, if not always honored, that, “he who comes into a court of equity and invokes its powers for his relief, should come with clean hands.” The motion to strikeout parts of the reply should have been sustained. Fisher-Hanson v. Railroad, 173 N. Y. 492; Tompkins v. Railroad, 72 S. W. Rep; 116. (3) The lien of an attorney, if he has any, is limited solely to the subject-matter of the suit. In this case, and under plaintiffs’ contract of May 29th, it could not extend beyond the fifteen hundred dollars sued for by plaintiffs in case of Austin y. Dawson’s executors. One-fourth of this plaintiffs received, and the other fourth they refused to accept, and it was tendered into court for them. The only other suit was the specific performance action brought by Peltier, and for their compensation in that action they had a special contract for the payment to them of one thousand dollars, on which suit is now brought. Exhibition Co. v. Crane, 167 N. Y. 505; Young v. Hoavell, 64 App. Div. (N. Y.) 246. (4) On the merits, and in view of the proof, it cannot be disputed Avith truth that Austin’s obtaining the funds, which he did obtain, was by virtue of his agreement Avith Peltier to divide the profits of a resale, and it cannot be disputed Avith truth that the commission, the value of the agency mentioned in plaintiff’s contract on which they sue, was agreed upon between all parties as being fifteen hundred dollars, and that Austin having-paid one-fourth of this commission, and having offered to pay and paid into-court another fourth, has discharged his full obligation under the terms of his contract of May 29, 1902.</p> <p>(1) How much does Austin owe plaintiffs on their contingent fee under their contract of May 29? Is it $375 or $2,235?</p> <p>This must be determined by a just and equitable construction of the contract in question.</p> <p>(2) The prime rule for the construction of contracts is that the intent of the parties as disclosed by their language be given effect. Redheffér v. Leathe, 15 Mo. App. 12; Ellis v. Harrison, 104 Mo. 270; Hanna v. Land Co., 126 Mo. 1; Knapp v. Knapp & Co., 127 M'o. 53.</p> <p>(3) If the intention can be ascertained by the acts and conduct of the parties, such interpretation should prevail. Brewing Co. v. Water Co., 34 Mo. App. 49; Bose v. Carbonating Co., 60 Mo. App. 28; Drug Co. v. Sanders, 70 Mo. App. 221; Newberry v. Durand,' 87 Mo. App. 290; Laing v. Holmes, 93 Mo. App. 231; Ireland v. Spickard, 95 Mo. App. 53; Ellis v. Harrison, 104 Mo. 270; Depot Co. v. Railway, 113 Mo. 225; Carter v. Foster, 145 Mo. 383.-</p> <p>(4) An attorney’s lien npon a fund in the hands of a third party is properly enforcible by a suit in equity,</p> <p>The enforcement of liens is a distinct subject of equity jurisdiction. Bank v. Packing Co., 138 Mu. 92; Burnham Munger & Co. v. Smith, 82 Mo'. App. 44.</p> <p>Our attorney’s lien act is borrowed entirely from the New York code. Consequently a late New York decision upon this identical point of equity jurisdiction is forcefully in point. Fisher-Hansen v. Railroad, 173 N. Y. 492, 66 N. E. 395.</p> <p>(5) Equity has juridiction to enforce statutory liens when the statute itself provides no method of enforcement. Gilchrist v. Railway (C.C.), 58 Fed. Rep. 708; Railway Co. v. Fackney, 78 Ills. 116; Gibbons v. Hamilton, 33 How. Prac. (N. Y.) 83; Fillmore v. Wells, 10 Colo. 228, 15 Pac. 343.</p> <p>(6) The lien of an attorney attaches to any property which is the result or fruitage of his services. New York Code, sec. 66; Acts of 1901 (Mo.), p. 46; Canary v. Russell, 31 N. Y. Suppl. 291,10 Mise. Rep. (N. Y.) 597, 24 Civ. Pro. R. 109; In re Wilson, 12 Fed. Rep. 235; Morrison v. Ponder, 45 Ga. 167; Porter v. Hanson, 36 Ark. 591; Bank v. Davidson, 42 Pac. 687; Fisher-Hansen v. Railroad, 173 N. Y. 492, 66 N. E. 395.</p>

— Son. Wm. L. Jarros., Judge. (1) When an accident, although possible, yet not probable, according to ordinary and usual experience, occurs and causes an injury, defendant is not guilty of negligence, because he does not take precautionary measures to prevent the injury, which,' if taken, would have prevented it, if the injury could not reasonably have been anticipated.

— Hon. J. H. Slover, Judge. (1) The-judgment in this case is in its nature an entirety, and the court committed error in sustaining the motion of the defendant, the Missouri Pacific Railway Company, for a new trial and in overruling that of ‘ the defendant, The Kansas City Southern Railway Company. It. S. 1899, sec. 773; Besliears v. Banking Assn., 73 Mo. App. 293; Sater v. Hunt, 75 Mo. App. 468; Seay y. Sanders, 88 Mo. App. 478; Holborn v. Naughton, 60 Mo.

— Son. Robt. A. Anthony, Judge. STATEMENT. Plaintiff sued defendant before a justice of tbe peace on tbe following promissory note: “$90,00.

Louis City Circuit Court. — Hon. W. B. Douglas, Judge. (1) The court’s refusal of defendant’s instruction in the nature of a demurer to the plaintiff’s evidence and of the peremptory instruction asked by the appellant at the close of all the evidence was error.

Francois Circuit Court. — Eon. Robt. A. Anthony, Judge. (1) Although it may be conceded that plaintiff was a minor, yet the evidence shows that he had been acting for himself and besides, if the contracts, or hills of sale made by him were voidable at his election, yet he could only avoid them on terms that would be equitable under all the circumstances, The law would not permit him to acquire the stock of goods, keep and not pay for them, and hence instruction 2 given for…

— Hon. Henry G. Riley, Judge. (1) The acts of the defendant constituted no defense either at common law or under the statutes. R. S. 1899, secs. 2240-2246; Roberts v. Barnes, 127 M'o. 115, 30 S. W. 113. (2) The burden of proof rests upon the State to prove the commission of a crime within the county limits. Janes v. State, 113 Georgia 272.

— Eon. Eenry C. Riley, Judge. (1) Amendments shall be allowed on terms which are not prejudicial to the other party. Stewart v. Glenn, Admr., 58 Mo. 486; Timber and Iron Co.-v. Cooperage Co., 112 Mo. 388, 20 S. W. 566; Tower v. Pauley, 67 Mo. App. 635; Carr v. Moss, 87 Mo. 450. (2) A petition cannot be so amended, even under the liberal provisions of the code, as to state an entirely different cause of action from the one declared on in the original petition.

— Hon. Henry G. Riley, Judge. STATEMENT. Defendant Stone is- tbe sheriff of New Madrid county. The other defendants are sureties on his official bond.

— Eon. W. N. Evans, Judge. (1) The Act of 1903 did not go into effect until June 21,1903, and the court erred in giving defendant a lien for any taxes paid before it took effect. Session Acts of 1903, pp. 254 and 255. (2) To give the Act of 1903 any other construction would be to render it retrospective in its operation and therefore unconstitutional.

— Hon. John A. Hnider, Judge. Plaintiff’s instruction 3, in addition to its many other faults, is possessed of one vital defect, in that it is upon an entirely different theory from that embraced in the petition. The petition charged the defendant with negligently obstructing (by damming up) the channel of a natural watercourse. The instruction autherkes a recovery for olrdructing the flow .of surface water.

— Son. Eenry G. Riley, Judge. (1) The court erred in giving instruction numbered 1, on part of the plaintiff. It will be seen that the instruction in question wholly ignores the counterclaim presented by defendant, and treats the matter as if the action stood alone upon the allegations of the petition, Avithout reference to • defendant’s counterclaim.

— II. on. J. L. Fort, Judge. (1) In cases in this State, under a statute similar to the present one, the courts hold that railroad companies are not liable for trespass when the company takes material from land for the purpose of constructing its roadbed. Eailroad y. Eailroad, 25 Mo. 550; Leavy y. Eailroad, 38 Mo. 485. (2) Our next contention is that the court erred in overruling defendant’s objection to the testimony on the measure of damages.

— Eon. J. L. Fort, Judge. The undisputed evidence is that this was at a switch where the public transacted business Avith the railroad company; that it would have inconvenienced the railroad company and also the public to have fenced the road at this point, and it Avould have also endangered the lives of employees of the railroad company to have fenced the road at this point. Wherefore, appellant contends that its demurrer to the testimony should have been sustained.

<p>BILL OF EXCEPTIONS: Filing After Time. ‘ Where a bill t>f exceptions was filed after the expiration of the time, granted for that purpose by the trial court, the evidence' can not be reviewed by the court of appeals.</p>

— Eon. Henry G. Pepper, Judge. STATEMENT. Defendant was convicted in the Lawrence Circuit Court on four seperate counts on an information charging him with having made as many false and corrupt affidavits.

— Hon. H. W. Johnson, Judge. (1) To make matters res adjudicata there must be a concurrence of the four conditions following: identity of the thing sued for, identity of the cause of action, identity of the persons and parties to the action, identity of the quality of the person for or against whom the claim is made. State to the use Henry Duncker v. Hollinshead, 83 Mo. App. 678.

<p>Appeal from Cape Girardeau Circuit Court. — Hon. Henry 0. Riley, Judge.</p>

— (1) A will is revoked by burning, tearing or otherwise destroying the same by the testator, or by some person in his presence by his direction, with the intention of revoking the same. 2 Jarman on Wills, secs. 114 and 115. (2) He who seeks to establish a lost or destroyed will, assumes to overcome the presumption that it was •destroyed by the testator by adequate proof. He must show by facts and circumstances that the will was actually fraudulently destroyed.

<p>BREACH OF CONTRACT: Evidence. In an action for damages for breach of contract, the evidence is examined and held sufficient to support the finding of the trial court for the plaintiff.</p>

Louis City Circuit Court. — Hon. Warwich Hough, Judge. (1) The court erred im submitting tbe question of negligence to the consideration of tbe jury, (a) In failing to grant a nonsuit, (b) In its instruction numbered 1, which was confusing and did not define tbe issue. Labatt, “Master and Servant,” 82; Johnson v. O., 86 W. Va. 73; Boyington v. Miller, 140 Mo. 684; Fox v. Gastenbury, 29 Conn. 204; Holmes “Common Law,” p. 108; Holt v. Railway, 84 Mo.

— Hon. Houston W. Johnson, Judge. Plaintiff’s claim that the release was obtained by reason of false representation, is barred by the Statute of Limitations and plaintiff cannot recover. The receipts and release were executed July 26, 1893. While the suit on the bond was instituted August 8,1896, the claim that the release was obtained by fraud was first pleaded by plaintiff’s amended reply filed September 21, 1903. Abst. page 12.

<p>APPELLATE PRACTICE: Reviewing Record. In a prosecution for assault and battery, where the information was not challenged and no instructions were asked or ’given on the trial, there is nothing' for the appellate court to review except to ascertain whether or not there was sufficient evidence to support the verdict.</p>

— Hon. H. O. Pepper, Judge. The court should have sustained defendant’s objection to the introduction of any testimony under the petition. Under the policy sued on there was absolutely no cause of action alleged or attempted to be charged against this defendant in the petition after plaintiff had dismissed the case as to the defendant Railway Officials Association. When he dismissed his case against the Railway Officials Company — that put plaintiff out of court.

— Hon. Houston W. Johnson, Judge. (1) While the release is not in strict conformity to the law then in force, Laws 1887, p. 234, it was still a valid release prima facie, in view of the testimony of J. W. M. Palmer and the facts in evidence in this case. J. W. M. Palmer was certainly prima facie ag’ent for Jennie L Dawson, plaintiff. Beacham on agency, sec. 373 ; 7 Cyc. Title, Commercal Paper, page 1031, Para, “B,” and note 59; Ferneau v. Whitford, 39 Mo.

Appeal form St. Louis City Circuit Court. — Eon. Robert M. Foster, Judge. (1) There is evidence to support the finding of the jury, and it is well settled that, in actions at law, the court will not reverse the judgment on the weight of the evidence. Chadwick v. Bumpus, 45 Mo. Ill; Garneau v. Hertel, 15 Mo. 191; Bray v. Kremp, 113 M'o. 552, 21 S. W. 220; Blanton v. Dold, 1(39 Mo. 64, 18 S. W. 1149.

— Hon. Henry G. Riley, Judge. (1) The county court had no jurisdiction of the subject-matter nor of the person of Wm. H. Barnett in the proceedings wherein the said court was attempting to revoke his dramshop licenses. (2) The county court should have sustained Wm.

<p>Appeal from St. Louis City Circuit Court.— Son. Daniel G. Taylor, Judge.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Respondent sued upon a warranty. No warranty was proved. Galbreath v. Carnes, 91 Mo. App. 514; Lindsay v. Davis, 30 Mo. 410; Peers v. Davis, 29 Mo. 189. (2) A warranty does not cover visible defects. Thompson v. Botts, 8 Mo. 713. • (3) By acts of dominion after the attempted rescission respondent lost his right to recover. McColloch v. Scott, 52 Ky. 172, 56 Amer.

Louis City Circuit Court. — Hon. O’Neill By an, Judge. ' Verdict was for the defendant and the appeal is from an order of the court sustaining plaintiff’s motion for new trial.

Appeal form St. Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. The; suit is by Caldwell, assignee for collection of Michael, against Michael himself and his partner, Dismukes. It is the same as if the suit were entitled Michael y. Dismukes & Michael. A man cannot sue himself, and a partner cannot sue himself and his other partner. Willis v. Barron, 143 Mo. 457, 45 S. W. 289; Barn-brick v. Simms, 132 Mo. 48, 33 S. W. 445; .

Louis City Circuit Court. — Hon. James B. Kinealy, Judge. (1) The court erred in admitting testimony, over defendant’s objection, as to permanent injuries to plaintiff’s nervous system. Pinney v. Berry, 61 Mo. 366; Waldhier v. Railroad, 71 Mo. 514; Schneider v. Railway, 75 Mo. 295; Rutledge v. Railroad, 110 Mo. 312,19 S. W. 38; Slaughter v. Railroad, 116 Mo. 275., 23 S. W. 760; Madison y. Mining Co., 65 M'o. App. 564; Muth, etc., v. Railway, 87 Mo.

— Eon. E. M. Ramey, Judge. (1) The court erred in giving on behalf of plaintiff instruction numbered 5, which is as follows: “This instruction tells the jury that, if the plaintiff, while a passenger upon one of defendant’s cars was thrown from the said car and injured on account of the sudden stopping thereof, then she is prima facie entitled to recover a verdict against the defendant.” We deny that this instruction properly declares the law applicable to the facts in this…

— Eon. Samuel Dams, Judge. (1) Failure of consideration, because of failure to live up to tbe terms of contract can not be set up as a bar to an action on notes given for tbe premium on a policy of insurance, unless tbe insured offers to rescind tbe contract by returning tbe policy and demanding bis notes. Life Ass’n v. Cravens, 60 M'o. 388.

— Hon. A. F. Evans, Judge. Tbe probate court bad no jurisdiction. Tbe petition shows on its face that this is a suit to enforce tbe specific performance of a contract. It is, therefore, an equitable suit. Tbe probate court has no general equity jurisdiction and is not given special jurisdiction in such a case as this. R. S. 1899, sec. 1753; Administrator v. Administrator, 19 Mo. 647; Church v. McElbinney, 61 Mo. 540; Church v. Rohberson, 71 Mo; (loe. cit.), 335-336.

S. G. Douglass, Judge. (1) .Under tbe constitution and laws of tbe defendant, tbe clerk of tbe camp could not waive tbe provisions of its constitution and laws respecting tbe payment of assessments, in tbe absence of knowledge and acquiescence on tbe part of tbe defendant. Modern Woodmen v. Tevis, 117 Fed. 369, 54 C. C. A. 293; Royal Arcanum v. Taylor, 121 Fed. 66, 57 O. C. A. 406; McMahon -v. Maccabees, 151 Mo. 535-540; Lavin v. Grand Lodge, 104 Mo.

— Hon, Henry M. Barney, Judge. (1) To justify the giving of this instruction the plaintiff’s evidence must have tended to prove: First., That the defendant negligently permitted the pipe to become and remain choked and obstructed as therein stated : Second. That the defendant knew or by the exercise of ordinary care could have known of such condition, and failed to clear away the obstruction; and: Third.

— Hon. P. 0 Stepp, Judge. (1) They were fellow-servants, engaged in operating the railroad, under the decision in this State, and entitled to the protection of the Fellow-Servant Act. Rice v. Railroad, 92 Mo. App. 35; Callahan v. Railroad, 170 Mo. 473. (2) The negligent, act complained of was done by Ira Laughlin in the course of his employment.

— Hon. N. M. Shelton, Judge. Plaintiff’s instruction is erroneous. It allows a recovery simply if while the train was moving Crist told the plaintiff to get off when they got to the handcar, pad does not reqnire that Crist should have made that command negligently or carelessly. Instructions must not ignore material facts, or issues in the case.

— Eon. E. M. Barney, Judge. (1) The court erred in holding that under a notice served on Angnst 3rd to vacate the bnilding occupied by defendant “on or before September 1st,” defendant had no right to move at any time and to pay rent only for snch a time as he actually kept possession of the premises.

— Eon. Wm. G. Ellison, Judge. Tbe respondent in this case, by bis pleading, attempts to raise two questions, to-wit: Tbe fact of agency and that of tender; and tbe court, in its instructions to tbe jury, took that theory of the case, and, in so doing, appellant thinks tbe court erred, under tbe testimony in tbe case, in submitting either tbe question of agency or tender to tbe jury. That no tender is pleaded in this case.

— Hon. Wm. G. Ellison, Judge. (1) A municipality has no powers except those expressly granted in its charter, and its ordinances must be consistent with its charter powers, and in harmony with the general laws of the State relating to the same subjects. Wood v. .Kansas City, 162 Mo. 303; Paris v. Graham, 33 Mo. 94; Quinette y. St. Louis, 76 Mo. 402; Kansas City y. Hallett, 59 Mo. App. 160; Dillon Mun. Corp. sec. 319; State y. Fladd, 23 Mo. App. 185; Ex parte Joffee, 46 Mo.

Jackson Circuit Court. — Eon. Win. B. Teas dale, Judge. (1) There is no evidence in the record that the accident happened by reason of the negligent act of defendant, nor is there any evidence from which the negligent act charged in the petition can be fairly inferred as the cause of the accident. The verdict rests upon mere conjecture, and fdr that reason the judgment cannot be sustained. Smith y. Railroad, 37 Mo. 292; Breen v. Cooperage Co., 50 Mo'.

— Eon. J. W. Alexander, Judge. (1) TJiere was a compliance, here shown, with thé statutes of Missouri, not a violation of them. Hence, the plaintiff was not entitled to recover. R. S. 1899, secs. 1094, 1193 and 1194. (2) According to the preponderance of testimony here, these sheep were transported to Kansas and delivered there. The statutes of Missouri, therefore, do not apply to this transaction. Stanley v. R. R., 100 Mo. 435.

<p>WAGES: Orders on Company Stores: Constitution. Section 8143 Revised Statutes of 1899, requiring any firm or corporation issuing orders or checks in payment of wages, to redeem the same in cash when presented, is unconstitutional because it abridges the right to contract.</p>

Louis City Circuit Court. — Hon. Jas. R. Kinealy, Judge. STATEMENT. The plaintiff took passage on one of defendant’s street cars, in the city of St. Louis, paid his fare and received from the conductor a transfer ticket, authorizing him to become a passenger of one of defendant’s Olive street cars travelling east.

— Ron. Asberry Burlchead, Judge. STATEMENT. The defendant was informed against for embracery in the circuit court of Ozark county by the prosecuting attorney of said county under sec. 2045, R. S. 1899, in two separate and distinct informations. The first charged defendant with unlawfully and corruptly attempting to improperly influence one McCully, a juror. On this information defendant was tried and acquitted by the court, sitting as a jury.

— Hon. Jas. L. Fort, Judge. In the first and third counts there is no evidence whatever of a collision with appellant’s train, or with any other train, or that there was ever a train ran over the road at or near where the property was found, and if there was a train or railroad, the testimony fails to state what train or road, which is fatal, and the demurrer should have been sustained. Gilbert v. Railway, 29 Mo. App. 65; Lindsay v. Railroad, 36 Mo. App. 53. STATEMENT.

Barry Circuit Court. — Hon. Henry G. Pepper, Judge. (1) The court committed error in permitting the witness Mayhew to testify that defendant was engaged in the saloon business. It was necessary for the State to prove by competent evidence that defendant had a license as a dramshop keeper. Secondary evidence could not be received of that fact except on timely notice and refusal to produce license. State v. Kurtz, 64 Mo. App. 123; State v. Reppetto, 66 Mo. App. 251.

— Son. Senry C. Riley, Judge. STATEMENT. We copy the statement of the case verbatim as given in the brief for plaintiff in error: “This is an action brought by plaintiff in error as the administratrix of the estate of James Smith, Sr., deceased, on a note, which note is in words and figures as follows, to-wit: “ ‘$500.

— Hon. Henry 0. Riley, Judge. Section 3011, R. S. 1899 points out the method, and the only method for dealing with dramshop keepers, their agents and employees which keep open their place of business, or sell, give away or allow the same to be drank about the premises on Sunday; but to prosecute, under that statute, the information must certainly charge the defendant with selling on the first day of the week, commonly called Sunday.

— Son. Senry G. Riley, Judge. (1) Appeals will lie from the county court to the circuit court from any final judgment or order having the effect of a final disposition of any cause or proceeding in the county court, in which that court acts in a judicial character and not in its mere administrative capacity. Scott County v. Leftwitch, 145 Mo. 26, 46 S. W. 963; Colville v. Judy, 73 Mo. 651; Webber v. Spindler, 36 Mo.

Louis City Circuit Court. — Eon. John W. MoElhinney, Judge. (1) The instruction, offered by defendant at the close of plaintiff’s case, in the nature of a demurrer to the pleadings and evidence, should have -been given.

Charles Circuit, Court. — Eon. Elliott M. Hughes, Judge. Respondent is clearly entitled to her proportionate share of the legacy bequeathed to her under the seventh clause of her father’s will. Section 240, page 175, Revised Statutes . 1899. The doctrine of bringing advancements into hotchpot applies only in cases of intestacy. Section 2913, page 740, Revised .Statutes 1899; Turpin v. Turpin, 88 Mq. 340.

— Son. Wm. N. Evans, Judge. That one substantive and complete cause of action, arising out of the same tort, cannot be divided into several suits, is too well settled to require citation of authorities, but see: Savings Bank v. Tracey, 141 Mo. 252, 42 S. W. 946; Trask v. Railroad, 2 Allen 331; Brannenburg v. Rid., 13 Ind. 103, 74 Am. Dec. 250; Steiglider v. Red., 38 M'o. App. 511; Trans. Oo. v. Traube, 59 Mo. 355; Laine v. Francis, 15 M’o. App. 107; Funk v. Funk, 35 Mo.