Volume 112 — Missouri Appeal Reports

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. (1) Being suspended, Lavin could only be reinstated by compliance with the laws relative to reinstatement, which it is admitted he never did. Carlson v. Supreme Council, etc.,115 Cal. 466, 47 Pac. Rep. 375; Grand Lodge v. King, 10 Ind.

<p>(Opinion by Goode, J.)</p> <p>1. MUNICIPAL CORPORATIONS: Compelling the Production of Papers: Authority of Committee. A resolution passed by the House of Delegates of the city of St. Louis, reciting that the city had been deprived of its just revenue by a dodging of the payment of personal tax and authorizing the speaker to appoint a committee to investigate the books and papers of the several departments, with power to subpoena witnesses and send for persons and papers, was sufficient authority to the committeemen appointed to compel by duces tecum, the secretary of a manufacturing corporation to produce its books and papers for the inspection of the committee.</p> <p>2. -: -: Power of Municipal Assembly. Under section 31, article 3 of the charter of the city of St. Louis, the House of Delegates of that city has power to summon witnesses and compel the production of books and papers of private corporations in the investigation of reported evasions of merchants’ and manufacturers’ tax and to delegate such power to a committee.</p> <p>3. -: -: Criminating Witness. The secretary of a private corporation, who has been arrested for contempt in refusing to produce the books and papers of his corporation for the inspection of a committee of the House of Delegates, of the city of St. Louis, appointed to investigate reported tax delinquencies, can not be released on a writ of habeas corpus in the court of appeals on the ground that his production of such documents would tend to criminate him, where he did not claim that privilege at the time he refused to produce them, and it did not appear that the evidence he was required to produce would have that tendency.</p> <p>4. --: -: Searches and Seizure. The compelling of the production of books and papers of a private corporation by* a municipal assembly for the purpose of investigating reported evasions of taxes, is not an unreasonable search and seizure within the meaning of the Constitution.</p> <p>(Dissenting Opinion by Bland, P. J.)</p> <p>5. --: -: Authority of Committee. A committee ap-pointed in pursuance of a resolution of the House of Delegates of the city of St. Louis, to investigate tax dodging, possess no general or common law jurisdiction and is confined to the authority given by the resolution.</p> <p>6. -: -; -. Where the power directly given to the committee was to investigate the books and records of the several departments of the city, though the resolution recited the evasion of taxes and the necessity of investigation, and empowered the committee to subpoena witnesses and send for books and papers, the resolution was too narrow to authorize the committee to compel by duces tecum the production of books and papers of a private corporation.</p> <p>7. -: -: Criminating Evidence. From the fact that the resoluton recited, as the reason for the investigation, the evasion of taxes, which would necessarily involve the making of false affidavits, etc., the secretary of a corporation subpoenaed before the committee could not be compelled to produce the books and papers of his corporation, on the ground that it would tend to furnish evidence upon which indictments might be found.</p> <p>8. --: Private Corporations. The right of the State to inquire into, supervise and regulate semipublic corporations which render public service, does not apply to private corporations organized solely for the purpose of conducting a private business; the individual and property rights of the latter corporation are entitled to the same protection as the individual and property rights of natural persons*</p>

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. (1) When property, stored in a warehouse is damaged by an act of God, the owner of the property, in order to hold the warehouseman liable for such damage, must prove (1) that the warehouseman was negligent in failing to exercise ordinary diligence in the care of the property, and (2) that such negligence was the proximate and immediate cause of the damage.

— Hon. Henry G. Pepper, Judge. (1) We contend there is no evidence here on which to base the inference that plaintiff’s animal got on the track at.and by reason of an insufficient cattle guard or a defective fence. Gordon v. Railroad, 44 Mo. App. 201; Brown v. Railroad, 20 Mo. App. 222; Logan v. Railroad, 96 Mo. App. 461, 70 S. W. 734; Herbert v. Company, 80 S. W. 978; Banks v. Railroad, 40 Mo'. App. 458;Wal-ton v. Railroad, 32 Mq.

St. Louis City Circuit Court. — Eon. Robt. M. Foster, Judge. (1) Plaintiff was not bound by any suggestion made by tbe conductor touching the way she should leave defendant’s car. Plaintiff knew that there was no other way to leave said car at said point. The theory of the trial was that defendant was obliged, in law, to furnish a safe place to alight from defendant’s car. No such obligation rested upon defendant.

— Eon. James T. Neville, Judge. (1) The statements made in the letter from Messenger were binding. He was not only an agent, but I contend acting as a principal, as he was one of the officers of the defendant, and the statements made were in his line of duty. Oostigan v. Michael Transfer Co., 38 Mo. App. 219; McDermott v. Railroad, 87 Mo. 285; Kaes v. Lime Co., 71 Mo. App. 101; Campbell v. Railroad, 86 Mo. App. —.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) The trial court erred in giving to the jury the instructions numbered 1 and 2 as asked by the plaintiff. Besides placing on defendant the burden of showing that plaintiff was rightfully discharged, they placed on defendant the burden of disproving the demands for rent and stenographer’s salary set forth in the amended petition which demands were put in issue by the general denial part of defendant’s answer.

Louis City Circuit Court. — Eon. Jas. R. Kinealy, Judge. (1) The court erred in setting aside tbe judgment affirming tbe judgment of tbe justice court, on motion of defendant. Sec. 4074, 4075 and 4076, Revised Statutes of Mo. 1899. Hamel y. Wies, 54 Mo-. App. 14; Wolf v. Coffin, 46 M'o. App. 190; Olaflin v. Burkbardt, 43 Mo. App. 222; Patterson v. M. K. & T. R. R. Co., 93 Mo. App. 643. (2) Tbe court erred in not setting aside tbe nonsuit on motion of plaintiff.

<p>Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.</p> <p>(1) The petition does not state facts constituting a cause of action for it nowhere states that F. T. Jackson is insolvent or that the notes made by relator W. E, Phillips and wife to F. T. Jackson have ever been paid or that they are in the hands of an innocent purchaser. State ex rel. v. Thompson, 81 Mo-. App. 549; Bank v¡ Leyser, 116 Mo. 77, sec. 6, 22 S. W. 501. (2) As the satisfaction of record of the trust deed by appellant J. W. Green, in the manner as stated in plaintiffs’ petition was done in the presence of and at the request and instance of the relator W. E. Phillips, relators are not entitled to recover, for at the time relator W. E. Phillips delivered his and his wife’s notes to Jackson, he knew that said deed of trust was not satisfied as the law directs and any injury to him by reason of said satisfaction is the result of his own acts and not that of defendant, J. W. Green. It is a rule that the negligence of the plaintiff which contributes directly to the cause of the injury will prevent a recovery, is without exception or qualification. Hogan v. Citizens’ Railway Co., 150 Mo. 36, 51 S. W. 173; Dunkman v. Railroad, 16 Mo. App. 518; Dunkman v. Railroad, 95 Mo. 55,1 S. W. 670. “If the negligence which produces the injury is mutual the plaintiff cannot recover.” Packet Co. v. Yandergrift, 31 Mo. 55.</p> <p>(1) The answer of defendant did not state, any facts sufficient to constitute any defense to the petition of the plaintiff, hence a motion for judgment on the pleadings was proper. North v. Nelson, 21 Mr. 360. (2) Appellant in his answer relies upon the doctrine of estoppel in pais. He does not charge contributory negligence. The authorities cited by him are all cases of contributory negligence in actions for damages against railroads. When viewed in the light of the accepted definitions of estoppel, and contributory negligence, can the answer of defendant be said to be either? Action v. Dooley, 71 Mo. 67; Bigelow on Estoppel (3d Ed.), 181; Herman on Estoppel, 337; Blodgett v. Perry, 97 Mo. 273, 10 S. W. 891; 11 Am. & Eng. Ency. of Law, 2d Ed., 387; Amy v. Ramsey, 1 Mo. 505; Boles v. Perry, 51 Mo: 119;' State v. Sitlington, 51 Mo. App. 253; Reichla v. Gruensfelder, 52 Mo. App. 13. (3) The answer of defendant is clearly intended to be a confession and avoidance. He did not controvert or traverse any allegations of relators’ petition, but tacitly confessed their truth and relators’ right to recover, unless barred by the plea of defendants. Banchor v. Gregory, 9 Mo. App. 102; Patti-son’s Code Pleading, sec. 833.</p>

— Eon. Jas. L. Fort, Judge. STATEMENT. Plaintiffs compose a firm wbicb does business in Poplar Bluff, Missouri, on the line of the defendant railroad company. The petition alleged and the evidence proved, that for several years prior to 1902, they had been engaged in shipping lumber, railroad ties and piling over defendant’s line.

— Hon. Leigh B. Woodside} Judge. (1) The prosecuting attorney having filed the affi-' davit of the prosecuting witness with his information, the fact is conclusive that the affidavit is the basis upon which the prosecution must rest. Revised Statutes 1899, section 2477; State v. Fuser, 75 Mo. App. 263; State v. Boggess, 86 Mo’ App. 639; State v. Meadows, 81 S. W. 463.

Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge. The instruction in the nature of a demurrer to the evidence at the close of the case should have been given because the evidence showed that this suit was prema-’ turely brought. Tobin v. McCann, 17 Mo. App. 481; Duryee v. Turner, 20 Mo. App. 34. An attorney cannot abandon his special contract of employment and sne on a quantum meruit. White v. Wright, 16 Mo1. App. 551.

<p>1. VOID JUDGMENT: Justices of the Peace: Injunction. Where a judgment was rendered before a justice of the peace against a defendant not served with process, upon a stipulation signed by an attorney who appeared for the defendant, but had no authority to appear, such judgment was not void on its face, and the defendant could maintain an action to restrain the enforcement of the judgment by injunction on the ground that it was voidable because of the facts outside the record.</p> <p>2. -: -: -. There being no legal remedy against a judgment so obtained before a justice of the peace, by motion to set it aside on account of fraud or mistake, the proper remedy was injunction.</p> <p>3. -: -: -: Merits. In order to obtain relief by injunction against such a judgment entered before a justice of-the peace, it was not necessary that the enjoining plaintiff should prove a- meritorious defense as fully before the chancellor as would have been necessary in the original action to defeat the judgment; it was only necessary under the facts in this case to show that it had a probable defense to the action.</p>

<p>Appeal from Greene Circuit Court. — Son. J. T. Neville, Judge.</p> <p>Plaintiff showed by the testimony of Mrs. Sarah Koons, sister of deceased and mother of plaintiff, that the deceased brought that deed to her and left it to be by her delivered to plaintiff, asking her at the time to hand it to her daughter and saying that he gave it to her for her care of his granddaughter, Essie Godbey. She also testified that the deceased at various times told plaintiff that she should be well paid for taking care of him and at other times told witness so. The chief errors of which plaintiff complains were in the refusal of the instructions asked by her, which refusal demonstrates the theory of the law upon which the court proceeded, and that was the necessity of an express contract before plaintiff could recover. Sprague v. Sea, 152 Mo. 335, 53 S. W. 1074; Shannon v. Carter, 99 Mo. App. 134, 72 S. W. 495; Lillard v. Wilson, 178 Mo. 145; Ramsey v. Hicks, 53 Mo. App. 195; Ryans v. Hospes,.167 Mo. 342; Yoerster v. Kunkel, 86 Mo. App. 197; Whaley y. Peck, 49 Mo. 83; Smith y. Myers, 19 Mo. 434. Measured hy the standard fixed in the foregoing authorities, that the action of the court in giving the peremptory instruction under the uncontradicted testimony of M’r. Boyd and Mrs. Koons that deceased said to them and told plaintiff she should be well paid for her trouble in caring for him in his great affliction was error, attains the certainty of a mathematical demonstration.</p> <p>There is no evidence in the case showing that Laura E. Birch expected to charge for the services rendered as set out in her account and filed in the probate court, and the only evidence offered by plaintiff in the case that in the least degree tends to show that Mr. Day expected to pay for the services rendered by Laura E. Birch, is that found, in the deposition of Mrs. Sarah Koons, and a careful reading of her testimony will show that her evidence did not tend to prove a contract on the part of Mr. Day to pay for these services, but only shows a kindly feeling for her. These statements at best are only loose declarations made to others and not to the claimant, or in her presence, and there is no evidence showing that the claimant had any knowledge or information of these declarations at the time of rendering the services. Woods v. Land, 30 Mo. App. 176; Sloan v. Dale, 90 Mr. App. 87: Ratcliff v. Lampee, 82 Mo. App. 335.</p> <p>STATEMENT.</p> <p>About December 31, 1902, George A. Day died testate, in the city of Springfield, Missouri. His will was executed October 6, 1899. In his will he referred to a house and lot he had previously deeded to plaintiff, and willed her his household furniture, and some trinkets valued at thirty-five dollars. To plaintiff’s husband, William. Birch, Day willed one-half of a grocery store in which he and Birch were joint owners. The remainder of his estate he willed to Paul Day, his nephew, and S. M. Godbey, his son-in-law. William E. Birch was his nephew and paintiff was his niece by both blood and ■ marriage. Plaintiff presented the following account for allowance against the estate of the decedent:</p> <p>“For nursing said Day 98 days from Sept. 24, 1902, to December 31, 1902, at $3</p> <p>per day..........................$294 00</p> <p>14 weeks board and room at $4.50 per week 63 00</p> <p>14 weeks washing at $1 per week......... 14 00</p> <p>“Total..........................$371 00”</p> <p>The claim was disallowed by the probate court and plaintiff appealed to the circuit court where, on a trial anew, she was compulsorily nonsuited; from this ruling she appealed to this court.</p> <p>The following from plaintiff’s statement is a fair summary of the evidence in respect to the services she rendered deceased:</p> <p>“The facts developed on the trial showed that the deceased, for several years before his: death, was in bad health, and for the last hundred days of his life was almost entirely helpless; that he was afflicted with an enlargement of the prostrate gland which made it necessary for a year or more before his death to draw his urine with a catheter; that he had a chronic diarrhea and at most times an inordinate appetite which it was impossible to control and which aggravated the diarrhea; that he was partially paralyzed — the effect of the paralysis being not only to destroy almost altogether the use of his lower limbs but also to destroy all control of his bowels, and the effect of which, in conjunction with his diarrhea, was to malte his care burdensome and trying in the extreme, involving constant care, and the washing of his person, his clothing and bed clothing daily and oftener. In addition to this his mind was affected and he was fretful and peevish, ‘finicky’ about his food and though he could walk and would attempt to do so when incapable by reason of weakness and of his loss of the proper use of his limbs, and had to be constantly watched to prevent his falling and injuring himself, all the care and watching he had been powerless to prevent his making such attempts and he having fallen on several occasions.</p> <p>“The testimony established (and there was nothing to controvert it anywhere) that during this time the plaintiff had the sole care (the use of the catheter alone excepted), cooking special dishes as required by his condition and as the caprice of his appetite demanded, taking such care of his room, of his clothing and of his bedding as called for the unstinted praise of the physician who attended him and of all who visited him, including relatives, she herself doing the washing until two weeks before his death, when her own condition prevented her doing it and when it was found impossible to get any one else to do it by reason of its extreme filthiness, and from which time until his death his clothing and bedding were burned.”</p> <p>Mrs. Mary Koons, the mother of plaintiff and sister of the deceased, testified that the deceased in her presence told plaintiff at various times that she should be well paid for her services, and had also told her (witness) that plaintiff should be well paid.</p> <p>An old friend and neighbor of deceased, J. J. Boyd, testified that Mr. Day told him some time after the death of his granddaughter that he had intended for her and himself to keep house after she finished school, but since her death there were no others left but Mrs. Birch for him to live with and he would have to make his home with her the rest of his days. But he said, “I may live a good long while and I may not live long, but she will take good care of me. I am satisfied I will be taken care of and she will be well paid for it.” Witness also testified that deceased said he would have to change his will, to the execution of which J. J. Boyd was a witness.</p> <p>The evidence shows that about twelve years before Day’s death, plaintiff and her husband resided in the city of St. Louis, and after the death of Mrs. Day, Day made three trips to St. Louis to solicit the Birches to move to .Springfield where he resided, saying that, he wanted W. E. Birch to take charge of his grocery store in said city. The nearest relation deceased had at this time was a grandchild, Essie Godbey, whose mother had died several years previous. The Birches, on Day’s solicitation, moved to Springfield where they occupied a house belonging to the deceased and paid rent therefor until about the first day of April, 1893. Essie Godbey was a school girl and from the evidence appears to have been in delicate health and when sick was taken care of by the plaintiff. Her last sickness extended over about eight months, during all of which time she was tenderly nursed and cared for by the plaintiff. She died some time prior to March, 1899. Her grandfather expressed his gratitude for the care that Mrs. Birch gave her in her last sickness and on March 18, 1899, deeded her a house and lot in the city of Springfield for the express consideration of one dollar.</p> <p>The evidence further shows that at first Day lived in a house adjoining plaintiff’s and after he became too feeble to get around and unable to care for himself, the Birches moved him to their house. The evidence also shows that while he. lived alone he took his meals with the Birches and after he became too feeble to come for his meals they were carried to him by some of the Birch family until he was removed to their house. The Birches lived in a house belonging to Day. There is no evidence that they did or did not pay rent after April, 1893, or any evidence as to whether or not Day paid them for his board.</p>

— Hon. David H. Eby, Judge. But the true rule and tbe one on which the foregoing instruction is based is that where work is done by one person and for another and accepted' by him the law will imply a contract to pay the reasonable value of such services. This is familiar law. 8 Waits Ac. & Def., 719; Sprague v. Sea, 152 Mo. 327, 53 S. W. 1074; Sidway v. Mo. L. & L. Co., 163 Mo. 386, 63 S. W. 834.

— Son. David S. Eby, Judge. (1) Where a party, by his own contract, creates a charge or duty upon himself, he is bound to make it good,… Held: said sum of $12,559.15, saving and excepting to itself from said sum the stipulated charge of 50 cents per barrel for the storage due the defendant under said contract upon the apples remaining in said warehouse at the time of said fire, that is to say, a storage charge of 50 cents per barrel upon 3809 barrels, and amounting in all…

<p>Appeal from Cape Girardeau Circuit Court. — Hon. Henry G. Riley, Judge.</p> <p>An appeal lies from a judgment of the probate court in cases of this kind. R. S. 1899, sec. 3535; R. S. 1899, see. 278, sub. 15; Garrison v. Lyle, 38 Mo. App. 558; Burge v. Burge, 94, Mo. App. 20, 67 S. W. 703; State ex rel. Betts v. Megown, 89 Mo. 156; State v. Mitchell, 3 Brevard (S. C.) 520; Fletcher v. Fletcher, 59 Yt. 98; State v. Williams, 9 Gill (Md.) 173; Senseman’s Appeal, 21 Penn. St. 331; Schouler on Executors and Administrators, 161.</p> <p>No appeal will lie from a judgement or order of probate court appointing an administrator or guardian. It is fundamental that no appeal can be taken from any order of a probate court unless specifically provided for by statute. Section 3535, R. S. 1899, reads as follows: “Appeals shall be allowed from any final order or judgment of the probate court under this chapter at any time during the term or within six months thereafter in like manner and with the same effect as appeals are allowed in cases of administration of the estates of deceased persons.” State ex rel. Grover v. Fowler, 108 Mo. 465, 18 S. W. 968; Burge v. Burge, 94 Mo. App. 20, 67 S. W. 703.</p>

<p>1. CRIMINAL PRACTICE: Information: Discrepancy In Dates. Under section 2535, Revised Statutes of 1899, relating to practice in criminal cases, an information charging one with tearing down a fence in violation of section 1958 of the Revised Statutes, is good after verdict, though it places the offense at a ■ date different from that stated in the affidavit on which the information was based, where it refers to the affidavit as an attached paper and charges an offense based on the very act complained of in the affidavit.</p> <p>2. -: -: Description. Where the information in such case charges the offense in the language of the statute, it is sufficient without describing the land on which the fence stood.</p>

— Hon. Houston W. Johnson, Judge. This was an order for goods to be manufactured specially for the defendants and did not require their signature. 29 American & Eng. Ency. (2 Ed.), pages 961-5; Pratt v. Miller, 109 Mo. 78, 18 S. W. 965; Flynn v. Dougherty, 91 Cal. 669; Carson v. Cheely, 6 Ga. 554; Crocket v. Scribner, 64 Me. 447; Goddard v. Binney, 115 Mass. 450; Goddard v. Binney, 15 Am.

Louis County Circuit Court. — Eon. John W. MoElhinney, Judge. In the case at bar there can be no question but that great injustice was done the plaintiff by the verdict rendered by the jury. The verdict of $800 is so grossly inadequate that it is shocking to the intelligence of anyone who will read the evidence or who knows of the facts in the above-entitled cause.

<p>1. EVIDENCE: Church Register. A baptismal church register kept by a parish priest in Ireland, where it is admissible in evidence by the laws and customs of the country, is admissible in evidence here for the purpose of showing the facts therein recited.</p> <p>2. -: -: Evidence of Birth. Though such baptismal record was only evidence of the date of the baptism of the -person, the date of whose birth was an issue, the court will presume that the person baptized was born prior to the date of baptism.</p> <p>3. -: -: Custodian of Record. Where it was shown that the church register of a parish in Ireland had been kept from time immemorial by the parish priest, and that it was his duty to keep it, it was not necessary to prove that the register was in the handwriting of the officiating parish priest at the time the record was supposed to have been made, in order to admit it in evidence.</p> <p>4. -: -: Application for Insurance: Warranty of Age. Where an applicant for life insurance warranted her age to be as represented, the church register of the parish in Ireland where she was born was admissible to show that she was born at a time which made her several years older than represented in the application, so that her beneficiary could not recover on the policy.</p>

<p>1. APPELLATE PRACTICE: Death of Party: Revival of Cause. Under section 756, Revised Statutes of 1899, an action pending in the^court of appeals does not abate on the death of a party, but, after the suggestion of such death, it is competent for the court to continue the action in the name of his representative or successor in interest.</p> <p>2. -: -: -. Under section 758, Revised Statutes of 1899, where one of the parties to a cause dies, it cannot be revived on the voluntary appearance of a representative or successor except by the consent of the parties; if the opposing party does not consent, he must be given an opportunity to show cause why the action should not continue in the name of the party claiming to be a representative or successor of the deceased.</p>

Louis City Circuit Court. — Hon. Jas. R. Kinealy, Judge. (1) A mechanic’s lien cannot he established against a building by one furnishing articles unless they are such fixtures as will pass by conveyance of the freehold. The rule for determining whether an article is such a fixture within the meaning of the statute relating to mechanics’ liens, is the same as that applied between vendor and vendee, mortgagor and mortgagee, heir and personal representative.

— Hon. Wm. A. Davidson, Judge. (1) Under our Missouri authorities as well as those of the courts generally, an iron safe clause similar to the one involved in this case has been upheld. The authorities most liberal to the assured declare that a sub-' stantial compliance with the conditions of such a clause must be shown before the plaintiff can recover. Crigler v. Insurance Co., 49 Mo. App. 11; Gibson v. Insurance Co., 82 Mo. App. 519; Dry Goods Co. v. Ins. Co., 100 Mo.

<p>(Opinion by Bland, P. J.)</p> <p>1. COMMON CARRIERS: Contract of Carriage: Execution. A contract for the carriage of goods filled out and signed by the agent-of the carrier who directed the routing, is conclusive upon the parties, although not signed by the shipper or the consignee.</p> <p>2. -: Conflict of Laws. A contract for the carriage of goods made in another State and to be-wholly performed in other States, is interpreted by the rules of common law relating to carriers, in the absence of evidence as to what the law was in the State where the contract was made.</p> <p>3. -: Connecting Carriers: Contract of Carriage. At common law, a carrier who received goods for transportation to a point beyond his own line engages only to carry them safely to the end of his own line and deliver them to the next connecting carrier, unless the usage of business, or his contract, shows that he undertakes to carry the goods for the whole route.</p> <p>4. -: -: Through Rates. The fact that the carrier receiving goods gives the through freight rate, does - not take the case out of the rule that his undertaking is to carry them over ' his own route only.</p> <p>-5. -: -: Payment of Freight. Where a carrier, receiving goods for transportation to a point, over connecting lines, receives the full payment for freight for the entire route, his contract is for the entire distance and he is responsible for the safe delivery at the end of the route.</p> <p>6. -: -: -: Contract Limiting Liability. But a' carrier who receives goods, with the full payment of freight to destination thereon, for carriage to a distant point over connecting lines, may by contract protect itself against liability for loss not occurring on its own line.</p> <p>7. -: -: Through Contract: Traffic Arrangement With Connecting Carrier. Where a carrier received goods for shipment to a distant point, over connecting lines, and selected the route, collected the freight charge for the entire distance, and it was shown that it had a traffic arrangement with the connecting carrier who received the goods for further transportation, the contract is a through one for which the receiving carrier is liable, notwithstanding a clause in the contract exempting it from liability for loss not occurring on its own line.</p> <p>8. -: -: -: -. Such an exemption clause is construed to be inserted for the purpose of fixing liability of the several lines over which the goods are hauled, as between themselves, and not for the purpose of restricting liability to the shipper.</p> <p>9. -; -; Traffic Arrangement: Evidence. In the absence of direct evidence of a traffic arrangement between connecting carriers which would make one the agent of the other, such arrangement may be inferred from circumstances, such as the selection by the receiving carrier of the line over which the goods are to be shipped.</p> <p>10. -: -: Changing Route. Where a carrier, receiving goods for transportation over its own line and through connecting carriers, changed the route to a different connecting carrier without the consent or knowledge of the shipper and damage to the goods occurred on the connecting carrier, the receiving carrier was liable, notwithstanding a clause in the contract of shipment, exempting it from liability for loss other than that occurring on its own line.</p> <p>(Separate opinion by Goode, J.)</p> <p>11. -: -: Contract Limiting Liability. At common law, a carrier receiving freight for transportation over its own line and connecting lines, may by contract limit its liability to loss occurring on its own line, or may contract to carry only to the end of its own line, and escape liability for loss occurring on the . line of the connecting carrier.</p> <p>12. - : -: Through Contract. A bill of lading which read “Received from Swift & Company the following packages, contents unknown, in apparent good order, marked and numbered as per margin to be shipped from South Omaha to Los Angeles, California, and delivered to a consignee or a connecting carrier, etc.,” was a contract for through carriage and could .be performed only by delivery to the consignee or a connecting carrier at the destination named, Los Angeles.</p> <p>13. -: -: -: Limiting Liability. Although such a contract contained a further clause providing the carrier should be liable'only for a loss occurring on its own line, the fact that it collected the freight for the entire distance and controlled the routing of the car, makes a fair construction of the contract an agreement to transport the goods from Omaha to Los Angeles and that other railroads who assisted in the carriage did so as agents of the receiving carrier.</p>

<p>Appeal from Wayne Circuit Court. — Eon. E. M. Dearing, Judge.</p> <p>The appellant attempts to make a tender, after action brought under section 1566, R. S. 1899, by depositing $30 with circuit clerk; the respondent’s contention is that he could not make a tender in this kind of a case, viz: for unliquidated damages, by that means; but that his remedy was under section 751, R. S. 1899 — by serving upon respondent a written offer to permit her to take judgment for $30. But to be a valid tender so as to defeat the costs, it must be valid either (a) under the common law, or (b) under the statutes of Missouri, (a) It was not a valid common law tender. 1st. Because it was made after the institution of the suit. 28 Amer. and Eng. Encyc. of Law, 21; Joyner v. Bentley, 21 Mo. App. 26. 2nd. Because it was an action for unliquidated damages. 28 Amer. and Eng. Encyc. of Law, 11; Sedgwick on the Measure of Damages, 580; Joyner v. Bentley, 21 Mo. App. 26. (b) It was not a valid tender for unliquidated damages under the statutes of Missouri. 28 Amer. and Eng. Encyc. of Law, 11; Lieurance v. McComas, 59 Mo. App. 118; Maxwell v. Railroad, 91 Mo. App. 582.</p>

<p>CONTRACTS: Ambiguity: Parol Evidence. A mortgagee of lumber accepted an order signed by the mortgagor reading as follows: “Please pay to B. S. C. Three Hundred ($300) Dollars, the amount of my account with them. With all overplus on lumber when shipped.” The order was ambiguous in that, it might be construed that $300 was to be paid unconditionally or out of any surplus on the lumber after it was shipped, and, therefore, parol evidence was admissible to show the sense in which it was used by the parties.</p>

— Eon. David E. Eby, Judge. There was no evidence of a “distinct and formal admission that the law restraining swine from running at large was in force in Clark county,” as claimed by respondent. The record of the former trialsi and the entire case shows no such admission.

Louis City Circuit Court. — Hon. John A. Blevins, Judge. (1) (a) It is the settled law of this State that the return of a sheriff on process regular on its face and showing the fact and mode of service is conclusive upon the parties to the suit. Its truth can be controverted only in a direct action against the sheriff for false return. Hallowell v. Page, 24 M'o. 590; Smoot v. Judd, 83 S. W. 484; Decker v. Armstrong, 87 Mo. 316; State v. O’Neil, 4 Mo.

Louis City Circuit Court. — Eon. James R. Kinealy, Judge. On a bill of interpleader by tbe plaintiff to determine the distribution of the fund payable on an insurance benefit certificate, the trial court awarded the fund to Catherine Philbin, Nellie Satchwell and other defendants, joined in the bill of interpleader, appealed.

- — Hon. Hdwm R. McKee, Judge. All of the instructions for the plaintiff ignore. the fact that the defendants in going upon the roadway was under claim of right and hence not a trespass, and as no damage was proven, the verdict should have been for defendants. 63 Mo. 577. Defendants going on the roadway was not illegal and hence not a trespass and any damage done there does not constitute the act, an act of trespass. Cook v. Redman, 45 Mr. App. 397; Davis v. Clark, 40 Mo.

— Hon. David H. Eby, Judge. (1) Tbe defendant waived tbe performance of tbe so-called condition precedent by omitting to specify in tbe answer wherein and bow defendant failed to comply with tbe conditions precedent. Sucb a defense cannot be made under a general denial. Bliss on Code PI. (2 Ed.), sec. 356a; Preston v. Roberts, 12 Busb 582; Elec. Co. v. Lewis, 86 Mo. App. 612.

— Eon. James T. Neville, Judge. “In this State dogs are property and no one has the right to kill them except for just canse. They may he killed, however, to protect one’s property, but not simply because they are found on siuch other’s land.” Pen-ton v. Bisel, 80 Mo. App. 135; Woolsey v. Haas, 50 Mo. App. 198; Gillum v. Sissom, 53 Mo. App. 516. STATEMENT. This case originated before a justice of the peace in Greene county.

Louis City Circuit Court. — Eon. Warwick Hough, Judge. The appeal is from an order overruling motion to quash a fee bill issued in favor of the referee in the ' cause. '(1) Under section 3286, Revised Statutes 1899, (which was section 5595, R. S. 1879) it has been held that a referee is not included within the meaning of said statute, and is consequently not entitled to a free bill for allowance as such referee, by virtue of said statute.

— Eon. E. B. McKee, Judge. (1) The court erred in refusing instruction numbered 4 asked by plaintiff. Held: that a man of ordinary intelligence is capable of knowing and judging the condition of a sidewalk, and as it was difficult to convey to the minds of the triers of facts a clear idea of the subject the witness is properly allowed to state Ms opinion. Construction Co. v. O’Brien, 81 Mo App. 639; Taylor v. City of Jackson, 83 Mo.

— Son. David S. Eby, Judge. (1) The court in construing a will, of the different items thereof, should give it such a construction that the property therein bequeathed would go to the parties that… Held: managed and used by the respective boards having in charge and under their control the said institutions, in the manner best calculated to keep up and maintain the same for the uses and purposes for. which they have been established.”

<p>1. CORPORATIONS: Powers of Officers: Converting Assets. Neither the executive officers nor the directors of a corporation have a right to convert its assets to their own use or make any self-serving disposition of them against the interest of the company.'</p> <p>2. -: -: -. But where there are no stockholders ' except the directors and officers, they may by unanimous consent make any disposition of the assets of the corporation which will not impair the rights of creditors.</p> <p>3. -: -: -. Where the officers of a lumber company, a corporation, used the culls and refuse product of the mill for fuel, for a considerable time, and there was nothing to show that there were any stockholders besides the officers of the company, or that any one interested in the company objected to such use, a finding by the trial court that such officers were not chargeable with the conversion of said products, will not be disturbed.</p> <p>4/ APPELLATE PRACTICE: Burden on Appellant to Show Error. It devolves upon the appealing party to show that error was committed in the trial' court and where the facts presented by the record are so meagre that the appellate court cannot tell whether error was committed or not, the judgment will be affirmed.</p>

— Hon. Franlc R. D earing, Judge. STATEMENT. Defendant was indicted in the circuit court of Wayne county on a charge of embracery under section 2045, R. S. 1899, with having attempted to> corruptly influence one Ward, a juror, in a certain case wherein one Sam Jones was on trial in said court for murder. The indictment upon which this case was tried, evidently through some oversight, failed to be incorporated in the record before us.

— Hon. James T. Ne-ville, Judge. (1) The petition charges that the motorman negligently and wilfully started the car1 with a sudden jerk while plaintiff was in the act of alighting. To use the language of Judge Sherwood, “The petition on its face is a felo de se.” Earning y. Eailway, 157 Mo. 507, 57 S. W. 268.

<p>PRACTICE: Revoking Order Granting Appeal: Jurisdiction. A circuit court lias power to revoke an order granting an appeal during the term at which the order is made.</p>

— Eon. Eenry G. Riley, Judge. (1) Plaintiff assumed tbe risk when he used the handcar, and the court erred in not sustaining the demurrer to the evidence offered by defendant at the close of plaintiff’s case and again offered by it at the close of all the evidence in the case. Cordage Co. v. Miller, 63 L. R. A. 551,126 Fed. 495; Harff v. Green, 168 Mo, 309, 67 g. W. 576; Roberts v. Tel. Co., 166 M'o. 370, 66 S. W. 155; Epperson v. Tel.

— Hon. James T. Neville, Judge. Upon the face of the note the defendants must he considered and treated as principals with respect to all persons without knowledge that they signed the note as sureties. Hardester v. Tate, 85 Mo. App. 624. The Visitation Convent v. Kleinhoffer, 76 Mo. App. 661; Thurley v. O’Connel, 48 Mo. 26; Maffit v. Greene, 149 Mo. 48, 50 S. W. 809.

— ■ Ron. John A. Snider, Judge. It is fundamental that there must be a consideration to support a contract. Chenoweth v. Express Co., 93 Mo. App. 185. There was a controversy between Tacke and Antonette Zoellner as to Tacke’s liability on the $600 note. Tacke agreed to pay the other two notes with the express understanding that he should thereby be relieved from all further liability on any of the notes.

— Eon. Leigh B. ~Woodside, Judge. The fact that Fowler accepted the trees, and planted them, and many of them are at this time alive, is conclusive evidence that there was no want of, or failure of, consideration. It is only when an article is entirely worthless when purchased that there is a total failure of consideration. Comings v. Leady, 114 Mo. 454, 21 S. W. 804; Brown v. Weldon, 27 Mo. App. 251; Brown v. Weldon, 99 Mo. 564, 13 S. W. 342.

— Hon. Houston W. Johnson, Judge. The plaintiff seeks to recover in the name of the Barada-Ghio Real Estate Company, a corporation, on a lease contract made with one F. X. Baráda, and the trial court permits oral evidence to be introduced, not only to contradict the agreement, but to show that the same should have been made with an entire different party. This court need only read the evidence of the witness Dryden on this point.

— Eon. L. B. Wood-side, Judge. (1) Plaintiff testified that he was only occasionally confined to hed and that he was not necessarily and continuously confined to bed during- the time for which he claims benefits; that he was not physically, but was mentally impaired and never totally disabled physically.

Louis City Circuit Court. — Hon. Warwick Hough■, Judge. (1) The court erred in amending instruction numbered 20, offered by defendant as follows, the italicized words at the conclusion constituting the amendment. Por no such issue as that raised in this amendment was presented in the petition or in plaintiff's instructions. Instructions must be based on the pleadings, and cannot change the issue raised in the pleadings.

— Hon. Henry G. Riley, Judge. Wm. H. Barnett was entitled to an appeal from the county court to the circuit court, and there have the matter tried de novo, and the filing of his motion and affidavit for appeal, and a bond as required by law which was wrongfully refused by the court, should have the. same effect in law as if the appeal had been granted, and the judgment of the county court should be held up until the matters are finally passed upon; there being no delay on…

<p>STENOGRAPHERS: Interpretation of Statutes. Under the session acts of 1893, pages 270 and 271, allowing official court stenographers reimbursement for “sums of money actually expended in necessary travelling expenses,” a court stenographer cannot he allowed pay for travelling expenses which he paid in work for the attorney of the railroad instead of in money.</p>

— Eon. Henry G. Riley, Judge. (1) Defendants’ demurrer should have been sustained; there is'no allegation in the petition that defendants were partners, a company, jointly interested, consented to, or even had knowledge of the alleged trespass. Merriwether v. Joy, 85 Mo. App. 684; Halliday v. Jackson, 30 Mo. App. 263. (2) The choppers were not the agents, servants or employees of defendants.

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. (1) In tbe absence of evidence locating tbe damage to goods in transit over several connecting lines, a prima facie presumption arises that tbe last carrier is tbe negligent one. Lin v. Eailroad, 10 Mo. App. 125; Croucb v. Eailroad, 42 Mo>. App. 252; Flynn v. Eailroad, 43 Mo.

Louis City Circuit Court. — Hon. J. W. McElhinney, Judge. (1) The court erred in refusing to give the peremptory instruction ashed by defendant at the close of all the evidence.

— Hon. Henry C. Riley, Judge. (1) Under the petition in this case the plaintiff /.was not entitled to recover, as he based his action on the duty to ring the bell or sound the whistle and the proof showed the accident to have taken place under conditions which did not make the statute apply. R. S. 1899, sec. 1102; Stillson v. Railroad, 67 Mo. 671. (2) Under the facts in the case Jones was guilty 'of negligence which caused the injury.

<p>1. STREET RAILWAY: Collision at Crossing: Negligence: Sounding of Beil. In an action against a street railway company for injuries received by plaintiff at a street crossing by reason of a collision of one of tbe defendant’s cars with tbe wagon wbicb plaintiff was driving across tbe tracks of defendant, tbe evidence showed that there were two parallel tracks and tbe plaintiff’s attention was absorbed in watching an approaching car on tbe near track and that bis progress was stopped and bis course changed by an excavation so that be was struck by a car on the further track before be could clear it. Held, the failure of the defendant’s motorman to ring the bell on the colliding car, as it approached, was of no significance because the plaintiff could not have extricated himself from the perilous position if he had'heard it.</p> <p>2. -: -: Vigilant Watch. The failure of the motorman to keep a vigilant watch for persons about to cross the track, was of no significance where it was shown that he saw the plaintiff when 150 feet distant from him, and in time to have stopped his car.</p> <p>3. -: -: Excessive Speed: Last Chance. Where the evidence showed in such case that after the collision the car ran fifty or sixty feet carrying the mule and fragments of the wagon with it and that by the force of the collision a passenger was knocked out of the car and onto the street, and some of the witnesses testified the speed was excessive, the question whether the motorman was negligent in running the car at a negligent rate of speed, and the question whether he could have stopped it after seeing the plaintiff’s peril, in time to avoid the collision, were for the jury.</p> <p>4. -: -: Duty of Motorman. The duty of a motorman in charge of a street car does not require him to put his car under control on seeing one near the track, unless the behavior of such person indicates that he is going to put himself in a position of danger.</p> <p>5. -: -: instruction. In an action against a street railway company for injuries received at a crossing, the defendant was entitled to an instruction clearly defining the duty of plaintiff and the effect of his contributory negligence and the duty of the motorman under the last chance rule, and an instruction which confused those principles, making them unintelligible to the jury, was error.</p> <p>, 6. -: -: Looking and Listening. It is the duty of one about to approach a street car track to look and listen for approaching ears; but the failure to look and listen will not prevent a recovery for injuries received at a crossing, where the plaintiff, in approaching, had ample time to cross before the colliding car reached him, but was prevented from doing so by an obstruction which he did not discover until too late.</p> <p>7. -: -; Contributory Negligence: Limits of Last Chance Rule. Where the plaintiff, in such case, was guilty of negligence which directly contributed to the accident, he could not recover on account of the negligence of the motorman, but only on account of the latter’s wantonness, willfulness or recklessness, in failing to stop the car after plaintiff was in danger.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) (a) In order to charge a garnishee, the service must be sufficient to give the court jurisdiction of the res as well as the person of the garnishee. Huffman v. Sisk, 62 Mo. App. 398; Grocer Co-, v. Carlson, 67 M'o. App. 183; Dunn v. Railway, 45 Mo-. App. 29. (b) And in order to show this, respondents must needs have introduced the execution and return in evidence, which was not done. Spengler v. Kaufman, 43 Mo-.

<p>Appeal from St. Louis City Circuit Court. — Hon. Robert M. Foster, Judge.</p>

<p>1. SLANDER: Variance. To authorize a recovery for verbal slander it is necessary to prove the exact language alleged to have been used, or enough thereof to constitute the charge; it is not sufficient that the words proved are equivalent to the words charged. ■</p> <p>2. -: -: Criminal Charge. In a criminal prosecution for slander, where the words charged were “He (meaning the person slandered) forged that deed,” proof that the words spoken were that “He (the person slandered) had changed ¡the consideration in a deed,” would not sustain a conviction because there was a failure to prove the slanderous words laid in the information.</p> <p>3. -: Forgery: Failure of Proof. The evidence was insufficient to support a conviction because the words proved did not, except by inference, charge the crime of forgery.</p>

<p>Certiorari to Simmons, Judge of the County Court of Texas County.</p>

Original Proceeding in Mandamus. (1) Jurisdiction over the subject-matter is defined by all courts of last resort and law-writers to be “the power inherent in the court to hear and determine a given class of cases.” The jurisdiction of the court over the subject-matter is determined by the pleadings. Dowdy v. Wamble, 110 Mo. 280; Babb v. Bruere, 23 Mo. App. 604; State ex rel. v. Smith, 104 Mo. 419.

— Hon. H. O. Timmonds, Judge. (1) The court erred in overruling the defendant’s motion to suppress the deposition of Dr. S. C. Price. Depositions must be reduced to writing in the presence of the officer taking them. E. S. 1899, sec. 2898; 9 Am. & Eng. Ency. Law (2 Ed.), 385; 6 Am. & Eng. Ency. PI. & Pr., 527. (2) The motion to suppress the deposition of Dr. Price was filed before the case was called for trial and before any announcement in the case.

— Hon. J. W. Alexander, Judge. (1) The instruction, among other things, tells the jury they may, in estimating plaintiff’s damages, take into consideration his loss of time, caused by the injury, and also such reasonable sums of money as plaintiff by reason of his injury has been compelled to and has expended in his efforts to cure the same.

— Eon. John P. Butler, Special Judge. (1) The court erred in striking out part of the answer of the defendant. 3 Am. & Eng. Ency. Law (2 Ed.), 563-; Green v. Railroad, 38 Iowa 100; s. c., 41 Iowa 410; 5 Am. and Eng. Ency. of Law (2 Ed.), 184. (2) The court erred in giving the peremptory instruction to the jury.

— Eon. P. O. Stepp, Judge. (1) There was no evidence in this case to warrant a verdict for the plaintiff on the third count of plaintiff’s petition. There was no pretense that the original contract between the plaintiff and defendant was changed and modified by the contract of March 27, 1902, except as to the method and time of payment.

— Hon. Samuel Davis, Judge. (1) There was not sufficient proof to go to the jury upon the essential fact that plaintiff’s horse was killed by collision with a railroad train. Foster v. Railway, 90 Mo. 116, and cases cited. While this may be shown by circumstantial evidence, it is held that the circumstances shown must constitute substantial evidence and must pass beyond the pale of mere possibility or conjecture. Hesse v. Railway, 36 Mo.

— Eon. Q-eo. F. Longan, Judge. (1) The court erred in giving a peremptory instruction, directing the jury to find for the plaintiff in the full amount sued for or in any amount for the reason that it was not sufficient to establish a breach of the bond, but the plaintiff must go further and show that it was injured by such breach and the extent of the injury, and as to whether plaintiff had suffered loss by reason of any breach in the bond and as to the extent of such injury…

— Hon. James GibsonJudge. (1) A county treasurer is a ministerial officer and has no discretion when warrants properly drawn are presented to him for payment. State ex rel. v.'Adams, 161 Mo. 849. (2) The pretended board of the village of Dallas was never legally constituted; never had possession of the school property of district No. 4, township 48, range 33. No legal plat was ever recorded. R. S. 1899, secs. 8956, 8958, 9860.

James Gibson, Judge. (1) The lower court erred in submitting this cause to the jury and should have given the peremptory instruction to return a verdict for defendant. Bradley v. Railroad, 138 Mo. 293; Walker v. Scott, 67 Kans. 814.

— Hon. P. G. Stepp, Judge. (1) Plaintiff’s instruction numbered six defining the measure of plaintiff’s damages was erroneous for the following reasons: (a) It permitted the plaintiff to recover for medical services and attention and expenses which plaintiff had become obligated to pay, but which he had not paid, whereas under the petition he would only be entitled to recover for medical services which he had actually paid for. Muth v. Railway, 87 Mo.

— Eon. P. O. Stepp, Judge. (1) The validity of the contract, it being made by reason of the reduced rate given plaintiff, 'of which' there is no controversy or question, must be conceded. Rogan v. Railroad, 51 Mo. App. 665; Wyrick v. Railroad, 74 Mo. App. 406; Bowring v. Railroad, 90 MO'. App. 324; McFadden v. Railroad, 92 Mo. 343; Stock Co. v. Railroad, 100 Mo. App. 688-9.

— Hon. Wm. G. Ellison, Judge. '(1) The court erred in giving instruction numbered one for the plaintiff, and also erred on the trial in holding that plaintiff, under the contracts, was not required to remove the timber from the farm, but only from the particular two acres sold by Douglas to plaintiff. Johnson County v. Wood, 84 Mo. 489; McCullock v. Holmes, 111 Mo. 445; Torbet v. Jeffrey, 161 Mo. 645.

— Hon. Henry M. Ramey, Judge. (1) The petition failed to charge and the evidence failed to show that the defendant’s employees were guilty of any negligence for the reason that the boy was not shown to have been in any place of danger to the knowledge of the employees, or that by the exercise of ordinary care they could have known that he was in any place of danger at the time the cleaver was thrown.

— Eon. A. M. Woodson, Judge. (1) The plaintiff, according to her own testimony, slipped and fell solely by reason of the slippery condition of the sidewalk. The defendant city is not liable for the mere slippery condition of its sidewalks, caused by ice, snow or mud. Mueller y. Milwaukee, 5 Mun. Corp. Cases 662; 86 N. W. 162. (2) The court erred in allowing plaintiff to introduce the alleged notice in evidence over defendant’s objections. It did not comply with the statute.

— Eon. A. M. Wood,son, Judge. (1) The defendant’s motion to dismiss should have been sustained, because the justice of the peace before whom the case was tried was not a legally elected and qualified justice of the peace. R. S. 1879, sec. 2803; R. S. 1899, sec. 3805; State ex rel. v. McCann, 81 Mo. 479; State ex rel. v. Ranson, 73 Mo. 78; Commonwealth ex rel. v. Pattison Gov., 12 Pa. Co. Rep. 202, 2 Pa. Dist. Rep. 128; Ex parte Snyder, 64 Mo. 58; Ayres v. Lattimer, 57 Mo.

— Hon. A. D. Burnes, Judge. (1) The court erred in sustaining defendant’s motion for a new trial. The motion was sustained “because the court erred in not giving the peremptory instruction to find for the defendant, at the close of plaintiff’s evidence.” We submit that this view of the trial court was erroneous, and that an examination of the record will show that plaintiff made out his case.

<p>1. ROADS AND HIGHWAYS: Private and Public: Landowner’s Access. A private road established by the county court becomes free for tbe public and the abutting property-owner has a right to connection therewith at a reasonably convenient point, and the interference with such connection is wrong.</p> <p>2. -: -: -: Injunction. Injunction is the proper remedy for repeated interference with such reasonable connection.</p> <p>3. -: -: -: -: Accomplished Facts. While equity will not restrain acts committed before its aid is sought yet where the defendant is engaged in a series of continuous wrongs in obstructing the abutting landowner’s access to a public highway, the case is different and injunction will lie, since the obstruction of the highway may be both a public and a private nuisance, and a private citizen injured thereby is entitled to injunctive relief.</p> <p>4. APPELLATE PRACTICE: Equity Case: Deferring to Trial Court. Where the testimony is conflicting the appellate court may defer the conclusions of the trial court.</p>

— Hon. Wm. A. Davidson, Judge. (1) There was no negligence shown in the order of assistant foreman McLaughlin to deceased to remove the stone. That there was danger in doing the work does not make the order to do it negligence. The danger was an incident in the work itself.

— Hon. J. H. Stover, Judge. (1) The court erred in its refusal to sustain the demurrer of the defendant to the evidence of plaintiff, and initsrefusal togivethe peremptory instruction requested by the defendant at the close of the whole case. Daniels v. Railroad, 13 L. R. A. 249; Walsh v. Railroad, 145. N. Y. 301; Ryan v. Tower, 92 A. S. R. 483, 61 N. J. L. 635; Koons v. Railroad, 65 Mo. 592; Nagle v. Railroad, 75 Mo. 661; Wheeler v. Stock Yards Co., 66 Mo. App. 269.

— Hon. Henry M. Barney, Judge. (1) No contract to ship the cans at any specified time was concluded between these parties by the correspondence which took place on February 14, February 16 and February 19. Beach on Modern Law of Contracts (1 Ed.), 67; Bruner v. Wheaton, 46 Mo. 366; Robinson y. Railroad, 75 Mo. 498; Strange v. Crowley, 91 Mo. 287; James y. Fruit Jar Co., 69 Mo. App. 213; Williams v. Railroad, 153 Mo. 488.

— Hon. Henry M. Ramey, Judge. The petition alleged that a notice had been served upon the “defendant, city of St. Joseph” and not upon the mayor, and did not allege that the notice stated the character or circumstances of the injury, nor that said notice was verified. Without such a notice, no suit could be maintained, therefore it was necessary both to plead and prove that such a notice had been served upon the mayor of defendant city.

— Hon.:Henry M. Barney, Judge. (1) The court erred in instructing the jury that before the six hundred dollars could be used for repairing the sewer they must believe that it fell in by reason of imperfect work. Under the terms of the contract, ten per cent of the contract price (six hundred dollars) was retained for the purpose of making necessary repairs within six months after the completion of the sewer.

<p>BILLS AND NOTES: Negotiability: Semiannual Compound Interest: Demand and Notice. A note set out in the opinion is held to be a negotiable instrument requiring demand and notice, notwithstanding it provides that if the interest be not paid semiannually it shall become as principal and bear interest at the same rate. Hope v. Barker, 112 Mo. 338, distinguished.</p>

— Hon. W. K. Amide, Special Judge. (1) The notice introduced in evidence did not state the circumstances of the injury. So far as any information in the notice is concerned, the injury might have been caused by ice or snow, an incline in the walk, a wet condition thereof, a banana peel, a protruding gas pipe, a broken plank, absence of bricks, water flowing under the walk, a telephone pole, an electric wire, or even a common assault.

<p>Appeal from Clay Circuit Court. — Eon. J. W. Alexander, Judga</p>

<p>Appeal from Livingston Circuit Court. — Eon. J. W. Alexander, Judge.</p> <p>(1) An appeal bond conditioned as required by the provisions of section 809, Revised Statutes 1899, binds a surety on such bond to the performance or the payment of the judgment appealed from, when affirmed by the court, whether in existence or having jurisdiction or created at the time the bond is executed, or thereafter ereated or given jurisdiction, which actually reviews the decision appealed from and deciding the case in appeal. June & Oo. v. Falkinburg, 89 Mo. App. 568; State ex rel. v. Gates, 143 Mo. 63. (2) The words “Supreme Court” used in the appeal bond are synonymous with the words “appellate court” required by the statute. Railroad v. Mussette, 86 Texas 708. (3) It is qiute evident that appeal bonds are not obligations that require the assent of the persons for whose protection such bonds are executed to be obtained, and the change in the jurisdiction does not change the obligator’s liability on the bond. Garrison v. New York, 21 Wall. (U. S.) 203. (4) If the bond is in substantial compliance with the provisions of the statute, it is a statutory appeal bond, and will be given effect as such. Newton v. Cox, 76 Mo. 352; Doolittle v. Dinny, 31 N. Y. 350; Brewing Co. v. Talbot, 125 Mo. 388. (5) The bond sued on was submitted to a competent judicial tribunal. Its decision thereon is final between the parties; until it has been reversed, set aside or vacated. Johnson v. Stebbin, 167 Mo. 325; Bedford v. Sykes, 178 Mo. 8. (6) The bond filed obtained the stay of execution, the object for which it was filed, and the parties gaining the benefit therefrom are estopped from impeaching the order of the court or the bond itself. Noah v. Ins. Co., 78 Mo. App. 370, and further authorities cited in the brief and argument.</p> <p>(1) The bond sued on in this case, given in the case of Brookshier v. Ins. Co., having been given to perform such judgment as shall be given by the Supreme Court, was not an obligation to perform the judgment of the Kansas City Court of Appeals rendered in that case, and although that action was lawfully transferred from the former court to the latter court, no action can be maintained by plaintiff against these defendants on that appeal bond, although the Kansas City Court of Appeals in that case affirmed the judgment of the lower court, the sureties on the appeal bond are entitled to stand on the strict letter of their contract. Nofsinger v. Hartnett, 81 Mo. 519; Schuster y. Weiss, 111 Mo. 158; Baeur v. Cabanne, 105 Mo. 119; Cranor v. Reardon, 39 Mo. App. 306; Distilling Co. y. Kerwin, 79 Mo. App. Ill; Keaton y. Boughton, 83 Mo. App. 158; State ex rel. v. Holman, 96 M'o. App. 202. To the same effect is, Estate y. Fidelity and Deposit Co., 96 Mo. App. 171. (2) The bond here sued on is not a statutory appeal bond, for the reason that in the conditions of the bond the sureties agreed to pay and perform the judgment of “the Supreme, Court,” instead of “any appellate court” as required by the statute. Brewing Co. v. Talbot, 125 Mo. 388; R. S. 1899, sec. 809. (3) The bond sued on not being a statutory appeal bond in that it was given to perform the judgment of the Supreme Court and not “the appellate court,” as required by the statute, when the original case reached the Supreme Court or the Court of Appeals by transfer, a new bond to conform to the statute might have been required by appellant in order to continue the stay, and plaintiff has no right now to complain as to the form of the bond, having neglected to avail himself of the remedy which the law afforded him. Brewing Co. v. Talbot, 125 Mo. 388; Brewing Co. v. Talbot, 135 Mo. 170; Kreyling v. O’Reilly, 95 Mo. App. 561; Keaton v. Bouton, 83 Mo. App. 165.</p>

— Hon. N. M. Shelton, Judge. (1) The theory of the court would perhaps have been correct, had respondent produced a purchaser, ready, willing and able to pay cash for the two farms; and perhaps if such cash purchaser had been produced, misrepresentations made to his principal thereafter, would not have affected respondent’s right to recover; but a cash customer was not produced.

— Hon. Samuel Barns, Judge. (1) The Missouri statute is not applicable to the policy in question, (a) Even if applicable there is no showing of any reserve or net value, in fact the testimony shows that the policy had no net value, (b) The statute refers to actual not theoretical value.

— Hon. A. D. Burnes, Judge. (1) The petition does not sufficiently plead special damages for permanent injuries. Brown v. Railroad, 99 Mo. 310; Ross y. Kansas City, 48 Mo. App. 440; Jacquin v. Cable Co. 57 Mo-. App. 320. (2) Plaintiff should have put examining physician on the witness stand. Haworth v. Railway, 94 Mo. App. 215; Webb y. Railway, 89 Mo. App. 604. (3) The damages assessed were excessive. Sawyer v. Railroad, 37 Mo-. 240 ; Trigg v. Railroad, 74 Mo. 147.

— Eon. John P. Butler, Judge. (1) Plaintiff’s petition attempts to set forth a cause of action in assumpsit and in the same count seeks to reform the terms and provisions of a warranty deed not set forth in the petition. This was uniting two causes of action, one at law and one in equity, in the same count, which was error and not permitted by the rules of pleading.

— Hon. John P. Butler, Judge. (1) When the claim in question was filed in the prohate court by the intervener — respondent here — for allowance against the estate of Presley Pound, deceased, that court had no power to entertain or adjudicate it, for the reason (amongst others) that final settlement had been made by the executor, the same revised by the' court and by the court as so revised, approved and distrubution ordered.

— Hon. James E. Hmell, Judge. (1) This judgment must stand or follow the questions of whether Walter S. Ham was a member of the firm of Ham & Ham, or if not was he their agent. No one pretends to say he was a member of the firm but all of the evidence is to the contrary. No one pretends to say he was their agent or that any act of W. S. Ham was ratified and made binding on the company. The judgment against the defendant, W. D. Ham is absolutely without evidence to support it.

Circuit Court. — Hon. James E. Has e l l, Judga (1) “No city . . . or other municipal corporation shall make any contract unless the same shall be within the scope of its powers or be expressly authorized by law, . ' . . and such contract including the consideration, shall be in writing dated when made and shall be subscribed by the parties thereto or their agents, authorized in writing.” R. S. 1899. sec 6759; Kirkwood y. Meramec Highlands Co., 94 Mr. App. 637; Savage v.…