Volume 113 — Missouri Appeal Reports

— Son. John P. Butler, Judge. (1) The demurrer to the evidence should have been sustained. Before the defendant company can be held liable; it must appear from the evidence that it was operating the road and running the engine that set out the fire. R. S. 1899, sec. 1111. (2) An instruction should not be given if there is no evidence on which to base it. Paddock v. Somes, 102 Mo. 226; Jennings v. Jennings, 48 Mo. App. 528; Culberson v. Railroad, 50 Mo.

— Hon. Alese. H. Waller, Judge. (1) There was no evidence to show that there was a failure to ring the bell; hence the demurrer to the evidence should have been sustained. Cathcart v. Railway, 19 Mo. App. 118; Summerville v. Railway, 29 Mo. App. 50. (2) The evidence in this case shows affirmatively and conclusively that the failure to ring the bell was not the cause of the injury to plaintiffs mare.

— Hon. Alex. H. Waller, Judge. (1) The first instruction given by the court of its own motion for the plaintiff is not the law of the case and the court erred in so declaring it.

— Eon. J. E. Slover, Judge. (1) The court should have sustained the demurrer to the evidence at the end of plaintiff’s testimony, because there was an entire variance between the allegations and the proof offered to sustain them. She sues as Ella B. Parks and her proof showed she was Ella Stone. Sandeen v. Railroad, 79 Mo. 278; Cummings v. Carson, 69 Mo. 325; Sisney v. Arnold, 28 Mo. App. 569; Clements v. Yeater, 69 Mo. 623; Jones v. Loomis, 19 Mo.

— Hon. J. L. Fort, Judge. (1) The defendant, Modern Woodmen of America, is a fraternal benificiary society as defined by the fraternal beneficiary law of Illinois, approved and in force July 22, 1893, and is now doing business in the State of Illinois under the said act. Bastain v. M. W. of A., 166 111. 595, 46 N. E. 1090.

— Hon. Nat. M. Shelton, Judge. The terms of the will make it clear that this was a naked life estate. No suggestion is made of her disposing of the property, neither does the will say that what is left at her death shall go to appellant. It clearly says that the wife takes it for life and at her death it shall go to the college.

<p>1. JURY TRIAL: Constitution. Under section 28, article 2 of the Constitution of 1875, it is the right of a litigant to have a trial by jury, though in courts not of record such jury may be less than twelve men, as may be provided by law.</p> <p>2. JURIES: Jury Fees. Under sections 3775, 3778, 3779, 3780, 3782, 3787, 3788, Revised Statutes of 1899, the county in which the circuit court is held pays the jury fees, both for jurors of the regular panel and those not of' the regular panel, in such court; while such fees are'taxed against the unsuccessful party, they are, when collected from him, paid into the county treasury by , way of reimbursing the treasury for moneys paid out theretofore for jury fees in that particular case.</p> <p>3. -: Special Juries: Deposit. Provisions of section 3791, Revised- Statutes of 1899, by which a party applying for a special jury shall make a deposit to pay the costs of it, do not apply to a case where the request for a jury is nothing more than the jury allowed by the Constitution.</p> <p>4. -: Obligation: For Costs: Deposit. The provisions of sections 1542 and 1543, Revised Statutes of 1899, requiring the plaintiff in certain causes to file an obligation for costs, do not authorize a court to require a defendant who asks a jury to make a deposit as a condition precedent to granting the request.</p>

<p>Appeal from Wayne Circuit Court. — Now. Frank R. Bearing, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Warwick Hough, Judge.</p> <p>(1) (a) It is error to increase the wife’s permanent alimony on grounds relating to the maintenance of the child of the parties to the suit. Meyers v. Meyers, 91 Mo. App. 151. (b) It is also error to combine provisions for alimony and those for maintenance of a child in one order without stating them separately. (2) (a) An ágreement between parties to a suit for divorce with respect to alimony is valid and binding. Crews v. Mooney, 74 Mb. 26. (b) “The power (to increase or diminish permanent alimony) is only exercised in a case that clearly calls for interposition,' generally some marked change in the condition and circumstances of the parties.” 1 Am. & Eng. Ency. of Law (1 Ed.), 482, and cases there cited.</p>

<p>1. CONTRACTS: Proposition and Acceptance. A contract consist- • ing of a proposition signed by only one of the parties, when ■ acted upon by the other party, is binding.</p> <p>.2. REAL ESTATE BROKER: Procuring Purchaser. A real estate broker earns his commission when he finds and produces to the seller a purchaser who is ready, able and willing to buy upon the terms upon which the broker is authorized to sell.</p> <p>.3. -: -: inability to Make Title. When a real estate broker produces a purchaser ready, able and willing to buy, the seller can not be excused from paying his commission by the fact that he is unable to complete the sale on account of not haying title.</p>

— Eon. Jas. L. Fort, Judge. (1) Under the law a person seeking to enforce a lien against a railroad company must, within ninety days next after the last labor was performed, or the material furnished, file in the clerk’s office a true copy of his account and must also serve a copy of said account on the person or corporation owning or operating or having charge of said road, or the property to which said lien attaches. R. S. 1899, sec. 4241.

— Now. Jas. L. Fort, Judge. (1) The court erred in refusing to give demurrer asked by defendant at the close of the evidence in this case. The undisputed evidence is that the steer was killed within the switch limits at Eaglet; that there was a depot and station ground there which was left open for the transaction of business with the public. That being true defendant was not required to fence at that point.

— Eon. Jas. L. Fort, Judge. (1) It being conceded by plaintiff that his stock was killed in the switch limits of Day (Avert) Station, it goes without saying that defendant was not required to fence its right of way at that point. Hillemann v. Railroad, 99 Mo. App. 271, 73 S. W. 220; Morris v. Railroad, 58 Mo. 78; Johnson v. Railroad, 27 Mo. App. 379; Russell v. Railroad, 26 Mo. App. 368; Lloyd v. Railroad, 49 Mo. 199.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) It is. a well-settled principle of law that, before bringing an action at law against a fraternal beneficiary corporation, all tbe remedies provided by the laws of the order should be exhausted. Such a requirement is a condition precedent to suit, and unless complied with the action is premature.

<p>1. STREET RAILWAYS: Injury at Crossing: Look and Listen. A party about to cross a street railway track must look and listen for approaching cars and will be denied recovery for injuries due to a collision with a car. if the duty is omitted, when by performing it, the accident could have been prevented.</p> <p>2. ———: —--: -: Contributory Negligence: Jury Question. In an action for injuries received by collision with a street ear, where it was shown the plaintiff,' when about to cross a street railway track, looked and listened for approaching cars where his view was obstructed so that he could only see about 150 feet, but failed to look again after advancing to where his view was unobstructed and where the evidence leaves it doubtful whether he could have crossed the track without injury, if the car, which was approaching and collided with him, had been going at a lawful rate of speed, it was a question for the jury as to whether he was guilty of contributory negligence which would preclude recovery.</p> <p>3- -: -: Last Chance. The last chance rule does not apply in an action against a street railway company for injuries received at a crossing by a collision with a car, where the motorman in charge of the car had no warning by the demeanor of the party injured that the latter was about to put himself in a position of danger.</p>

—Hon. John A. Snider, Judge. (1) Although a party may recover on circumstantial evidence in cases under the stock statutes, yet they should make out a case where a fair presumption may be drawn from them and not a possible presumption. Hesse v. Railway, 36 M'o. App. 163. (2) What was said by Judge Black in the case of Perkins v. Railway, above cited is apropos to this case.

.Appeal from Butler Circuit Court. — Eon. E. N. Phillips, Special Judge. (1) The writ of certiorari is in the nature of a writ • of error to review the proceedings of the inferior tribun- . al, and is only issued where no appeal, writ of error or other available mode of review is afforded, and can only-issue upon a final- determination of the matter in the inferior tribunal.

— Eon. Houston ,W. Johnson, Judge. (1) The court erred in giving instructions for the plaintiff as follows: (a) Plaintiff’s instruction numbered 1 tells the jury that if they find from the evidence that “the plaintiff delivered to the defendant” the team of horses for transportation, etc., and that the horses were injured in transit by the defendant’s negligence, then they should find for the plaintiff, (b) The court erred in giving plaintiff’s instructions numbered 2 and 3.

— Eon. David E. E~by? Judge. (1) The court erred in construing the statute so as to require a resident of a city outside of Ralls county* Laving a license from said city, to take out a license in Ralls county. It adopted a construction wbicb would require one using an automobile to take out a license in every county in the State through which he happened to pass.

Louis City Circuit Court. — Hon. War-wide Hough, Judge. (1) The court erred, in refusing to give,- at the request of defendants an instruction in the nature of a demurrer to the evidence offered at the close of the plaintiff’s evidence in chief, and offered again at the close of. all the evidence. This instruction should have been given because there was an utter failure on the part of the plaintiff to prove any of the allegations of negligence contained in her petition.

Louis City Circuit Court. — Eon. Bobt. M. Foster, ;Judge. (1) The trial court ought to have sustained the demurrer to plaintiff’s evidence. The evidence disclosed the fact that the injuries which the plaintiff received were occasioned by the defendant’s agent, after the relation of passenger and carrier had ceased between the plaintiff and defendant, and were also a result of an independent set of acts wholly without the scope of the conductor’s employment.

Louis Court of Criminal Correction.— Son. Siram N. Moore, Judge. STATEMENT. There are no briefs on file for either appellant or respondent in this case. There is no bill of exceptions. The record proper only is before ns for review and under the statutes it- is our duty to examine the same for error. This will be done. The defendant was informed against in the St. Louis Court of Criminal Correction by the assistant prosecuting attorney of said court in three counts.

Louis City Circuit Court. — Hon. Warioich Hough, Judge. (1) A contract between two parties upon a valid consideration may be enforced by a third party, when entered into for tbe benefit of such third party, even though he may not be mentioned in the contract, and though he was not privy to the consideration.

Appea] from St. Louis City Circuit Court. — Eon. ' O’Neill Ryan, Judge. (1) Definition of libel ordinarily accepted: “A malicious publication expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of one dead of the reputation of one who is alive and expose him to public hatred, contempt or ridicule.” Oomm, v. Olapp, 4 Mass. 163.

— Hon. H. G. Pepper, Judge. The prohibition of section 2992, R. S..1899, apart from any other consideration, renders the contract for the transfer of the dramshop licenses in question incurably void. And enforcement of the public policy of this State, as to the business of dramshops and the licensing thereof, would necessarily result likewise, without that statutory provision. Mitchell v. Branham, 79 S. W. 739; Sedalia Board v. Brady, 78 Mo.

— Hon. E. R. McKee, Judge. (1) A real estate broker’s commission is due when he produces a purchaser who is ready, able and willing to buy, and who offers to comply with the terms imposed by the landowner. Chipley v. Leathe, 60 Mo. App. 20; Hayden v. Grillo, 35 Mo. App. 647. And this is true if the broker brings vendor and vendee together and places them in a position that they may execute a contract. Gelatt v. Ridge, 117 Mo. 553, 23 S. W. 882..

Louis City Circuit Court. — Hon. O’Neill By an, Judge. (1) Tbe petition in this case contains but one count; that which is entitled the second count in said petition is not, under the rules of pleading in this State, a separate count by itself, and therefore, whatever its signification, it must be considered a part of the so-called first count.

— Hon. David H. Eby, Judge. Judgment in the .trial court iu favor of the defendant. and a motion for a new trial filed by the plaintiff was sustained. The appeal is from the order granting •a new trial. (1) The court committed error when it sustained plaintiffs’ motion for a new trial, for the reason that the petition or statement filed by plaintiffs in the justice •court stated no cause of action, under the. statute of frauds. Weil v. Willard, 55 Mo.

— Son. Jwines T. Seville, Judge. (1) As between tbe claimant and tbe land owners, whose property bas been enhanced by tbe material furaished under a contract for construction,, often very, vague descriptions of items furnished, or of property to be charged, will be held good and sufficient, but which, as to strangers to the contract might not be so held; and, clearly, the itemization here in this case is sufficient, Rail v. McCrary, 45 Mo.

Louis, in the matter of granting a dramshop license to Carl Anschuetz. (1) The writ of certiorari reaches only questions of jurisdiction, and does not deal with the merits of controversies between the parties; litigant. State ex rel. v. Smith, 101 Mo. 174,14 S. W. 108; State ex rel. v. Springer, 134 Mo. 212, 35 S. W. 589; State ex rel. v. Bland, 168 Mo. 1, 67 S. W. 580; State ex rel. v. Oauthom, 40 Mo. App. 94; State ex rel. v. County Court, 45 Mo. App. 387.

— Eon. Win. A. Davidson, Judge. The plaintiff assumed the risks that were incident to his employment in the usual operation of the business He was injured by one of those risks. It was as obvious to any man as it was to the foreman. The demurrer should have been sustained on that ground.

— Hon. W. N. Evans, Judge. STATEMENT. This cause was transferred to this court from the Supreme Court. It originated in the circuit court of Oregon county.

— Hon. Henry G. Pepper, Judge. A party is bound to know the contents of a writing signed by him and if he signs the same without reading it or relying upon the representations of a stranger, he is nevertheless bound by the contract and cannot testify as to his understanding of the contract different from the plain language of the writing. He is bound by his agreement deliberately entered into.

<p>1. HUSBAND AND WIFE: Custody of Children. Where a husband. and wife have separated and it is shown that the wife on account of superior fitness and means is the better able to care for their children, it is proper that their custody should be awarded to her, although the husband is a moral man and devoted to their welfare.</p> <p>2. -: -. Nevertheless, in such case, in the absence of proof that the husband was immoral or addicted to bad habits, lie should have the right to visit such children at intervals, on conditions provided by the court, although he contributed nothing to their support.</p>

Louis County Circuit Court. — Eon. John W. McElhinney, Judge, (1) The court erred in admitting proof of the reasonable cost of the buildings, for the reason (1) that the averments of the petition will not admit of such proof and the appellant was not advised of such an issue; and (2) for the reason that the difference between the contract price and the reasonable cost of said buildings is not the proper measure of damages.

— Hon. P. 0. Stepp, Judge. (1) This is an action under penal statutes, and it is incumbent upon the plaintiff to prove by competent evidence the liability of the defendant for the injuries complained of. This can not be done by inference or conjecture. Smith v. Railway, 25 Mo. App. 113, 116; Ferris v. Railroad, 30 Mo. App. 122, 124; Bartlett v. Railway, 68 Mo. 56.

— Eon. Eat. M. Shelton, Judge. (1) The doctrine of equity concerning undue influence is yery broad, and is based upon principles of highest morality. It reaches every case,'and grants.relief where influence is acquired and abused, or where confidence is reposed and betrayed; 2 Pomeroy’s Equity Jur., sec. 951. When a party is not a free agent and not equal to protecting himself, equity will protect him. Story’s Eq. Jur., sec. 239; Sims v. Sims, 101 Mo. App. 417,418.

— Eon. J. D. Perl tins, Judge. (1) Plaintiff’s mortgage is void because it permits tbe mortgagor to sell tlie mortgaged property and appropriate the proceeds thereof to his own use and benefit; and because it provides that the mortgagor may sell .the mortgaged property and substitute other property in lieu thereof.

— lion. John W. Henry} Judge. STATEMENT BY BrOADDUS, P. J. The statement of relator is sufficient for an understanding of the principal questions raised in the case. It is as follows: S. A. Mutchmore died in the State of Pennsylvania, his last will and testament being filed and admitted to probate in the probate court of Jackson county, Missouri. By his will his widow was nominated and qualified as executrix in Pennsylvania.

— Eon. James Gibson, Judge. (1) The note and guaranty in said suit are void, because they were extorted by the plaintiff by means of a duress of goods. (2) The common law was in force in Oklahoma at the time of the execution of the note and guaranty in suit. Statutes of Oklahoma (1893), sec. 3874. And an agister’s lien did not exist at the common law. Stone v. Kelley, 59 Mo. App. 214, 218; Pickett v. McCord 62 Mo. App. 467, 473; 2 A. and E. Encyc., Law (2 Ed), p. 12.

— Eon. J. W. Alexander, Judge. (1) Where on sale of chattels there is an inspection or a reasonable opportunity to inspect, the doctrine of caveat emptor applies and the purchaser takes at his own risk. Lord v. Grown, 39 Pa. St. 88; Gardner v. Winter & Go.

— Eon. A. M. Woodson, Judge. (1) The court erred in permitting the plaintiff to testify as to the condition of the pole and its surroundings two months after the accident. (2) The. court erred in permitting the witness, Lucas, to testify as to the condition of the pole and its surroundings two weeks after the injury.

— Eon. Nut. M. Shelton, Judge. (1) Tbe court erred in sustaining tbe demurrer to tbe plaintiff’s petition and in rendering a general judgment for tbe defendants. This was not a passive or discretionary trust, but an active trust requiring duties and supervision of a trustee. Perry on Trusts (5 Ed.), sec. 248.

-Appeal from Jackson Circuit Court. — Eon. James Crib-son, Judge. (1) There was no substantial evidence to support the verdict in this case, and therefore the judgment should he reversed. (2) There is no principle of practice better settled by the decisions of the appellate courts of this State than that a verdict will not be permitted to stand unless it be supported by substantial evidence.

— Eon. W. B. Teasdale, Judge. (1) The court erred in giving to the jury instruction numbered 1 at the request of respondent company, defendant now. Chouquette v. Barada, 28 Mo. 491; Fine v. Public Schools, 30 Mo. 166, 39 Mo. 59; Rose v. Spies, 44 Mo'. 23; Jones v. Jones, 57 Mo. 138; Miller y. Marks, 20 Mo. App. 269; Hopper v. Vance, 27 Mo. App. 336; Railway v. Stock Yards Co., 120 Mo. 541.

— No». Wm. B. Teasdale, Judge. (1) Upon this testimony it must be conceded, first, that attorney Cheatham was authorized to make a settlement for plaintiff and that defendant was so notified; and, second, that if there was any restriction upon Mr. Cheatham’s authority, defendant and its agent had no notice thereof.

— Hon. Nat. M. Shelton, Judge. (1) The defendant, Modern Woodmen of America, is a fraternal beneficiary society as defined by the fraternal beneficiary law of the State of Illinois approved and in force July 22, 1893, and is now doing business in the State of Illinois under the said act. Bastain v. Modern Woodmen, 166 111. 595, 46 N. E. 1090; McDermott v. Woodmen, 97 Mo. App. 636.

— Hon. A. D. Burnes, Judge. (1) The first count of plaintiff’s petition stated a good cause of action. Under the evidence plaintiffs should have recovered on this count, and the court erred in not so instructing the jury. Winningham v. Faucher, 52 M'o. App. 458; Lathrop v. Mayer, 86 Mo-. App. 355-362; York v. Bank, 105 Mo. App. 127; Bichardson . v. Drug Co., 92 M'o. App. 515; Clark v. Bank, 57 Mo. App. 277; Jacoby v. O’Heame, 32 Mo. App. 566; Thomas v. Eamsey, 47- Mo.

— Hon. John P. Butler_, Judge. (1) The plaintiff sued an Illinois corporation that was an entity — a person who could have no legal existence other than under the Illinois law. Plaintiff then substituted another and different corporation, to-wit: A corporation organized under the laws of Iowa. In the meantime the two years statute of limitations had run.

— Hon. A. D. Burnes, Judge. The plaintiff assumed the risk of a collision of the handcar and the regular passenger train, and he was negligent in being upon and running the handcar down the grade and around the curve at a rapid speed, and there was no negligence on the part of the defendant. The demurrers .to the evidence should have been sustained. Hammond v. Railway, 83 M’ich. 334; Railway v. Baugh, 149 U. S. 368; Minnier v. Railway, 167 Mo. 99; Cothron v. Cudahy, 98 Mo.

— Hon. Nat. M. Shelton, Judge. (1) The city of Bevier being the real party in interest, the action was properly brought in its corporate name. “All suits shall be prosecuted in the name of the real party in interest.” R. S. 1899, sec. 540; R. S. 1899, sec. 5894; State v. Duncan, 3 Lea (Tenn.) 679; Memphis v. Looney, 9 Baxt. (T.enn.) 130; Palmyra v. Morton, 25 Mo. 593.

E. 0. Timmonds, Judge. (1) The management of affairs of a corporation are by the law committed to the care of the board of directors; and, each director is conclusively presumed to know all about the conditions of the corporation, its property, debts and assets.

— Eon. J. W. Alexander, Judge. (1) The two declarations of law requested by appellant should have been given, they were applicable to the facts in evidence 'in the case and stated correct principles of law and although there was other evidence in the case on which the court might have found against appellant, still a party to a suit is entitled to have his evidence considered under correct theories of law.

— Hon. Henry M. Ramey, Judge. (1) The petition failed to state facts sufficient to constitute a cause of action, and the court erred in overruling the defendant’s motion made at the opening of the trial, to exclude all evidence under the same. Mallinckrodt Works v. Neinmich, 169 M'o. 397; Burnham v. Boyd, 167 Mo. 188-189; Knapp-Stout v. City, 156 Mo. 352-353; Sidway v. Land Co., 163 Mo'. 374. (2) No duty on the part of the defendant to screen or guard the fan is alleged.

— Hon. J. W. Alexander, Judge. (1) The petition or complaint in this case fails to state facts sufficient in law to constitute a cause of action and the court committed error in. admitting any evidence under the same against the objection of the defendant. The complaint lacks all the necessary allegations. He is claiming to sue for damages on a warranty and he states no facts showing a warranty.

— Hon. H. 0. Timmonds, Judge. (1) Kennedy, the addressee of the telegram should not have been permitted to testify what he would have done or that he would have accepted and filled the order in case the message had been delivered. Nor should he have been permitted to testify what he would have understood it to mean. What he would have done is speculative, remote and contingent. Lumber Co. v. Tel. Co., 44 S. E. 309; Tel. Co. v. Ferguson, 60 N. E, 674; Fisher y. Tel.

— Hon. W. B. Teasdale, Judge. (1) The court erred in entering judgment in favor of the defendant in the case. (2) The court erred in giving the declarations of law requested by the defendant. (1) Defendant had no reason to apprehend that the flood would reach the cars located where they were on May 29. Hence there is no ground of negligence shown in not delivering the cars to the Hannibal & St. Joe Ry. Co., for shipment, as directed.

— No». A. F. Evans, Judge. (1)Reliance upon an express warranty excludes an implied one. Consequently after suing in two counts, one on an express warranty and one on an implied warranty and then on closing his case in chief dismissing as to the count on the implied warranty, plaintiff cannot recover on such an implied warranty. 28 Amer. & Eng. Enc. of Law, p. 741; Norris v. Reinstedler, 90 Mo. App. 629.

— Eon. J. E. Slover, Judge. (1) The court erred in giving instruction numbered one, in which it submitted to the court, the issue as to whether twenty-third street was a public street or not; and by further telling that if appellant knew of the condition of such street or by the exercise of ordinary care could have known of the same and by the exercise of ordinary care could have repaired the same, for the reason there was no evidence upon which to base the same, and for the…

— Eon. J. E. Blover, Judge. (1) Under sections 3852 and 3853, R. S. 1899, plaintiff must file before justice of tlie peace; (a) Instrument sued on, or (b) Statement of tbe account, or (c) Statement of facts constituting the cause of action on which the suit is founded. The complaint must be sufficiently definite to advise the defendant of the nature of the claim, and to bar another action for the same matter.

— Hon. A. M. Woodson, Judge. (1) The notice and application of W. E. Gibson to the federal court asking that plaintiff be restrained from further proceeding in this case, etc., offered by the plaintiff should have been admitted in evidence. The conspiracy had been sufficiently established by the testimony offered prior to the time these papers were offered. Weinstein v. Reid, 25 Mo.

— Hon. Wm. G. Ellison, Judge. ’(1) The trial court clearly erred in sustaining the demurrer to plaintiff’s petition. For nearly fifty years it has been the settled law in this' State, and acquiesced in by all the courts repeatedly, that, when a corporation, after having put the land owner to expense, abandons and discontinues its condemnation proceedings, such land owner may recover all costs, expenses and damages occasioned by the proceeding it had instituted.

— Hon. Hugh 0. Dabbs, Judge. (1) Plaintiff is not entitled to recover on the facts stated in the petition and answer, the answer, standing undenied, it is admitted that the defendants acted in good faith, and that before acting they obtained all the light on the facts they could and sought and followed the advice of lawyers.

— Hon. James E. Hazell, Judge. (1) The defendants in their return to the petition set up a complete defense to relator’s action.

— Hon. A. H. Waller, Judge. ' (1) Having alleged that the furniture was injured in a certain manner, and having alleged that the negligent acts were committed in a certain way, it was necessary for the plaintiff to prove the allegations of the petition. In other words, the probata must agree with the allegata.

— Hon. Hugh G. Dabbs, Judge.. (1) Under tbe admitted facts in this case, as disclosed by tbe record, tbe trial court erred in refusing tbe defendant’s peremptory instruction asked at tbe close of tbe plaintiff’s evidence and again at tbe close of the whole case. King v. Morgan, 109 Fed. Rep. 446, 10 Am. Neg. Rep. 200; Livengood v. Lead & Zinc Co., 179 Mo. 229; Browne v. King, 100 Fed. 561; Kopf v. Stone Co., 95 N. W. 72; Allard v. Hildreth (Mass.), 5 Am. Neg.

— Hon. James; Gibson, Judge. (1) The-court erred in submitting tbe issues tendered by tbe plaintiff to tbe jury, for tbe reason that under tbe evidence tbe court should have declared as a matter of law there could be no recovery. Unless: it be the law, that a party can recover who negligently runs into a train tbe cause ought not to have been submitted.

.Appeal from Sullivan Circuit Court. — Hon. John P. Butler, Judge. (1) An action under the double damage act cannot be maintained unless it is proved on the trial that the injury or killing was done either in the township in which the suit was brought, or an adjoining township. Mitchell v. Railroad, 82 Mo. 106; Blackenstoe v. Railroad, 86 Mo. 492; Roberts v. Railroad, 19 Mo. App. 650; Palmer v. Railway, 21 Mo. App. 437; Wright v. Railroad, 25 Mo.

A.ppcal from Polk Circuit Court. — Eon. Argus Cow, Judge. (1) The tender and acceptance of less than the amount of disputed claim in settlement of the entire claim is binding, and operates as a satisfaction of the claim. Maack y. Schneider, 51 Mo. App. 92; Dentman v. Kilpatrick, 46 Mo. App. 624; Lindersmith y. Land Co., 31 Mo. App. 258; Worden v. Houston, 92 Mo. App. 371; Coal Co. y. St Louis, 145 Mo. 651.

— Eon. W. B. Teasdale, Judge. (1) The servant assumes the ordinary risks and dangers of Ms employment that are known to> him and those that might be known to him by the exercise of ordinary care and foresight.

— Son. James Gibson, Judge. (1 ) Because the evidence conclusively shows, and the plaintiff admits that he was at no time “wholly disabled.” Assn. v. Millard, 43 111. App. 148; Saveland v. Casualty Co., 67 Wis. 174; Lyon v. Assn., 46 la. 631; Maccabees v. King, 79 111. App. 145; McKinley v. Ins. Co., 106 la. 81; Smith v. Lodge, 62 Kan. 75, 61 Pac. 416; Knapp v. Ins. Co., 53 Hun (N. Y.) 84; Rhodes v. Ins. Co., 5 Lans. (N. Y.) 77; Bylow v. Ins.

— Eon. J. E. Blower, Judge. (1) The court erred in giving instruction numbered 1 for plaintiff. The allegation in the petition is ' that plaintiff got upon the car “for the purpose of riding on same as a passenger;” that is the same as alleging that she got on the car with the intention of becoming a passenger, which is not an allegation that she did become a passenger. Raining v. Railway, 157 Mo. 501.

— Hon. Wm. L., Jarrott, Judge. (1) The plaintiff failed to show that defendant was guilty of any negligence, and for that reason our demurrer to the evidence should have, been sustained. Saxton v. Railway, 98 Mo. App. 503-4; Erwin v. Railway, 94 Mo. App. 296-7; Young v. Railway, 93 Mo. App. 275; Shields v. Railway, 87 M'o. App. 646; Pryor v. Railway, 85 Mo. App. 367; Holt v. Railway, 84 Mo. App. 446; Guffey v. Railway, 53 Mo.

<p>1. APPELLATE PRACTICE: Evidence: Verdict. If there is any substantial evidence upon which to base a verdict the appellate court is bound by the verdict.</p> <p>2. RAILROAD FIRES: Evidence: Circumstances: Jury Question. In an action for damages for a fire alleged to have been set out by a railroad, if tbere is any substantial testimony supporting such allegation the question is for the jury; and where- the action depends upon circumstantial evidence the circumstances must form a connected chain pointing to a single conclusion. -</p> <p>3. -: -: Jury Question. On a review of the evidence it is held sufficient to send to the jury the question whether the fire was communicated from a fire set out by a passing engine.</p> <p>4. EVIDENCE: Incompetent: Contradictory: Invited Error. The admission of evidence tending to contradict incompetent evidence theretofore admitted is held error; but the party introducing the incompetent evidence originally cannot complain since he invited it.</p>

— Hon John P. Butler, Judge. (1) The controlling record is the record entry of the trial court. The record as brought into the appellate court imparts absolute verity. Wells v. Lea, 20 Mo. App. 852. (2) And the appellate court is bound by the record. Bradley-Hubbard Mfg. Co. v. Bean, 20 Mo. App. 111. (3) In case of discrepancy between the record proper and the bill of exceptions the record controls. Jacobs v. Western F. & 0. Works, 9 Mo.

— Hon. 8. G. Douglass, Judge. (1) It being conceded that tbe property in question was destroyed by an act of God, tbe trial court should have directed a verdict for the defendant. 13 Am. & Eng. Ency. Law (2 Ed.), 721, and cases there cited; 4 Elliott on Railroads, sec. 1455; Froward v. Pittard, 1 T. R. 27; Wallace v. Clayton, 42 Ga. 443; Norris v. Railway, 23 Fla. 182;-Clark v. Railway, 39 Mo. 184; Ballentine v. Railroad, 40 Mo. 491; Davis v. Railroad, 89 Mo. 340.

— Eon. Wm. L. Jarrott, Judge. (1) The colloquium in the third and fourth counts in the petition shows upon the face thereof, in each, count, that the alleged taking in either count was not larceny. Plaintiff was in possession of the com, and merely failed to deliver to defendant. Such failure is not larceny. R. S. 1899, secs. 1898,1910; Kelley’s Crim. Law, sec. 652; Hall v. Adkins, 59 Mo. 144; State v. Storts, 138 Mo. 127.

— Son. J. McD. Trimble, Special Judge. (1) The court erred in its refusal to sustain the defendant’s demurrer and to give defendant’s peremptory instruction. The evidence wholly failed to sustain the allegations of the petition. Spiro v. Transit Co., 102 Mo. App. 261; Hesselbach v. St. Louis, 179 Mo. 524; Purl v. Railway Co., 72 ÍVIo. 172; Bartley v. Railway, 143 Mo. 139,140; Raming v. Railway, 157 Mo. 506. (2) Instruction numbered one is unsupported by the evidence.

— Hon. John P. Butler, Judge. (1) The court will perceive from therecord in this case that the only defense to this action is that the pretended school district is a de facto district; this is a direct admission that the pretended district formed from the unorganized district in township 52, range 17, and a part of school district No. 1, township '51, range 17, divided by a county line was illegally formed and in direct violation of law.

— Eon. W. ■ W. Graves, Judge. (1) The appellate court will set aside a verdict, which is without substantial evidence to support it, or which is manifestly the result of prejudice or passion. • Acklin v. Staehlin, 56 Mo. 558; Long v. Moon, 107 Mo. 334; Hewitt v. Steele, 136 Mo. 327; Oglesby v. Railroad, 177 Mo. 272; Curtiss v. Driggs, 25 Mo. App. 175; Bank v. Lawson, 87 Mo. App. 42; Roman v. Trading Co., 87 Mo. App. 186; Gage v. Trawick, 94 Mo. App. 307.

— No». J. W. Alexander, Judge. (1) A witness cannot be permitted to give his opinion or conclusion in answer to an inquiry embracing the whole merits of the case. Connor v. Stanley, 67 Cal. 815, 7 Pac. 723; Pelamourges v. Clark, 9 Iowa 1; Railroad v. Edmunds, 41 Ala. 667; Iron Co. v. Spradley, 51 Ala. 171; Lundawer v. Ins. Co., 31 Ark. 461; Hamilton v. Mine Co., 108 Mo. 364; Madden v. Railroad, 50 Mo.

— Eon. Andrew F. Evans, Judge. (1) The evidence at the trial and the undisputed facts clearly prove that respondent was guilty of such contributory negligence as would bar a recovery.

— Hon. Jwines Gibson, Judge. (1) “From plaintiff’s own testimony, it thereby appeared that they expected to sign and contemplated signing the written contract alleged by defendant at the time they delivered the cattle; hence, as a matter of law, the written contract governed.” Railway v. Byers, 73 S. W. 428; Railway v. Gallagher, 70 S. W. 97; McClurg v. Whitney, 82 Mo. App. 630-1; Tuggles v. Callison, 143 Mo. 536; Gann v. Railroad, 65 Mo. App. 670.

— Eon. A. M. Woodson, Judge. (1) The foremost error in this case is. allowing the deposition of Nell Adams McKinney to he read.

— Hon. W. B. Teasdale, Judge. (1) The Carthage bank’s mortgage was satisfied when Siegel-Sanders received from the plaintiff the proceeds of the renewal paper, being the exact sum required to discharge it. ' Wyman v. Hevard, 9 Ok. 35. (2) The evidence of authority in Siegel-Sanders Commission Company to receive payment for the Carthage bank, was complete, and the court erred in refusing to submit the question to the jury.

; — Eon. J. McD. Trimble, Special Judge., (1) Tke evidence wholly failed to sustain, the allegations of the petition, (a) The knowledge of the peril of the plaintiff, on the part of the employees of the company. Spiro v. Transit Co., 102 M'o. App. 261; Hesselbach v. St. Louis, 179 Mo. 524; Breeden v. Mining Co., 103 Mo. App. 179; Worthington v. Railway, 72 Mo. App. 162. (b) The starting of the trains with a sudden and unusual jerk by the gripman in charge of the train.

— Eon. J. MoD. Trimble, special Judge. (1) The statement filed before the justice is insufficient in that it does not state whether the note is lost or destroyed, and the statement and the affidavit to it recite plaintiff’s belief that the note is lost or destroyed. R. S. 1899, sec. 3854; R. S. 1899, sec. 642.

— Hon. James Gibson, Judge. (1) Under the undisputed physical facts in evidence, the injury could not have occurred as claimed by the plaintiff. (2) The plaintiff was guilty of contributory negligence as a matter of law. Glascock v. Dry Goods Co., 80 S. W. 365; Beckman v. Brew. Assn., 98 Mo.

— Son. W. B. Teasdale, Judge. (1) Since the organization of the Interstate Commerce Commission, commercial exchanges have received its constant recognition as suitors in its court. First Annual Report, pp. 46, 54, 55, 102,103; Second Annual Report, pp. 108, 127, 129, 149, 153, 154, 156, 162; Third Annual Report, pp. 132,143,144,145,146,155,166,169, 171, 174, 179; Fourth Annual Report, pp. 88, 100, 133, 146, 147, 149, 150, 154, 161, 169, 178, 180, 181, 184, 189, 206.