Volume 114 — Missouri Appeal Reports

— Eon. John L. Peale, Special Judge. (1) The court erred in refusing to sustain the demurrer of the defendant, and ref using to give its peremptory instruction at the close of the case. Anderson v. Railway, 23 L. R. A. 203; Chenery v. Railroad, 22 L. R. A. 575; Railroad v. Eicher, 67 N. E. Rep. 376; Griswold y. Railroad, 14 Am. Neg. R. 78; Weldon v. Railroad, 13 Am. & Eng.

— Hon. O. H. Dean, Special Judge. (1) The court erred in refusing instruction numbered 8, offered by defendant in the nature of a demurrer to all the evidence. The injury to plaintiff was the direct and necessary result of his own gross negligence directly contributing thereto.

— Son. Shannon G. Douglass, Judge. (1) The case should not have gone to the jury. Howard v. .Railway, 173 Mo. 524; Glasscock v. Swofford Bros., 80 S. W., 364, 106 Mo. App. 657; Harrington v. Wabash, 104 Mo. App. 663. (2) The defendant had no reason to anticipate any defect in the kettle and none existed, unless it be that the bubbles which plaintiff himself first discovered was evidence of it, and he did not make this known to defendant.

— No». Wm, L. Jarrott, Judge. (1) The burden of proof is on the plaintiff to show by a preponderance of the evidence that the defendants co-operated together and acted in concert and that such acts and conduct ivere the cause of the separation of the plaintiff and her husband; and that defendants acted in bad faith, that their conduct and actions were for the deliberate, willful and wanton purpose of separating plaintiff and her husband.

— Eon. Andrew F. Evans, Judge. (1) Tbe instruction given by the court at the instance of the plaintiff was a peremptory declaration that as a matter of law the judgment should be for the plaintiff. It was in the nature of a demurrer to the defendant’s evidence in defense, and was not a finding upon the facts. Butler Co. v. Bank, 143 Mo. 13; Davis v. Croyden, 60 Mo. App. 441.

— Eon. Andr&w F. Evans, Judge. (1) The bridge here in controversy was not a public nuisance: the builder of the bridge, therefore, cannot be charged in an action for nuisance with any liability to respond in damages for the injuries inflicted upon respondents by the collapse of the bridge. Tate v. Railroad, 64 Mo-. 149, 155; 7 Am. & Eng. Encv. of Law (2 Ed.), 950; Smiths v. McConathy, 11 Mo. 517, 522; Kirchgraber v. Lloyd, 59 Mo.

— Hon. John A. Hochaday, Judge. (1) The court erred in refusing to postpone the trial under the circumstances set forth in' the record. Talbot y. Hore, 17 Mo. App. 175; Hammer stein v. Haase, 48 Mo. 498. (2) Haying forced the defendant to trial, the court committed further error in admitting oral evidence concerning the terms of the agreement mentioned in the statement when it was admitted that the same was in writing. Tufts v. Morris, 87 Mo.

— Eon. W. G. Ellison, Judge. (1) The court erred in refusing the peremptory instruction requested by the plaintiff. The plain facts of the case, stripped of the froth and verbiage injected into it for the sole purpose of mistifying and prejudicing the jury, fully Avarr anted and required such instruction.

— Hon. Hugh Dabbs, Judge. (1) The chief value of the land sold being the lead and zinc ore it contained, the life tenant would have the right to mine the same although the same may not have been opened up for mining prior to the commencement of the life estate. Saeger v. McCabe, 92 Mich. 186.

Louis City Circuit Court. — -Now. Franklin Ferriss, Judge. The count erred in overruling defendant’s demurrers to the evidence offered at the close of plaintiff’s case and of all the evidence. Sec. 1035, R. S. 1899; Loewer v. City, 77 Mo. 455; Sindlinger v. City, 126 Mo. 328, 28 S. W. 857; Railroad v. Grubbs, 26 S. W. 326; Baustian v. Young, 152 Mo. 325, 53 S. W. 921; City v. Ins.

<p>SCHOOL DISTRICTS: Arbitration: Award of Arbitrators. The award of a board of arbitrators appointed by the county commissioner under the provisions of section 9742, Revised Statutes 1899, to determine an appeal in the attempted formation of a new school district, must be reduced to writing, signed by the members of the board and filed with the clerk of the proper district; otherwise there is no legal evidence of the formation of such new district and a quo warranto proceeding to oust the directors of such district will lie.</p>

— Hon. E. R. McKee, Judge. (1) It is essential to the existence of a pledge that the property be placed in the possession of the pledgee. Storts v. Mills, 93 Mo; App. 201; Chitwood v. Lanyon Zinc Co., 93 Mo. App. 225; Schoulter on Bailments and Carriers (2 Ed.), sec. 188, page 199. The description of the property in the chattel mortgage was too nncertain and vague to give notice to other purchasers and mortgagees.

— Eon. Jas. L. Fort, Judge. (1) The trial court did not acquire jurisdiction of the person of defendant for several reasons, the first of which is: Because the law requires the service of the original petition and summons to be made on the “president or secretary, or other chief officer in charge of the principal office of such company, by the acting sheriff ,of the county in which such company may have its principal office.” Neither the petition nor the return nor anything…

— Eon. W. N. Evans, Judge. STATEMENT. C. W. White, the plaintiff, was clerk of the circuit court of Texas county and ex-officio recorder of deeds in 1893. Indictments were preferred against him by the grand jury of that county for malfeasance in office, and suits were brought upon both of his official bonds and he became a fugitive from justice.

<p>1. FRAUD AND DECEIT: Misrepresenting Number of Acres. Where a vendor of land makes false statements, positively as of his own knowledge, regarding the number of acres in the tract about which negotiations are pending for purchase by the acre, such statements constitute fraud.</p> <p>2. -: -: Caveat Emptor. The rule of caveat emptor applies only where the defect complained of is open and patent to one exercising ordinary business care and attention; the number of acres in a tract of land is not a fact patent to the observation of one exercising ordinary care.</p> <p>3. -: -: -: Survey. The duty of one purchasing land to use means of knowledge easily within reach to ascertain the amount thereof, does not require him to employ a surveyor, where the vendor makes positive representations, as of his own knowledge, as to the number of acres.</p> <p>4. -: -: -. A vendor of land who makes false statements regarding the number of acres he is selling, knowing the statements to be false, can not claim that the purchaser was careless- and inattentive in discovering the truth; a purchaser has a right to rely upon positive statements of fact and need not use his means of knowledge.</p> <p>5. -: -: Principal and Agent: Joint Liability. A principal who receives the benefit of a sale of land made through the fraudulent representations of his agent is liable jointly with the agent in an action for fraud and deceit.</p> <p>6. -: -: -: Parties. An agent of the purchaser of land, who negotiated the purchase, is not a necessary party in an action for fraud and deceit, brought by his principal against the vendor.</p>

— Eon. F. R. Bearing, Judge. It has long been the rule of the common law, that streams which in their natural condition, at ordinary stages of water, are fit and capable of being used for rafting purposes; that is to say, rafting railroad ties down the same, are public highways for that purpose, that the owner owns to the thread of the stream or the whole of it as the case may be, subject to the right of the public to use it for that purpose.

Francois Circuit Court. — Hon. Rol)t. A. Anthony, Judge. Under section 1061, Revised Statutes of Missouri 1899, the Illinois Southern Railway Company purchased all of the railroad property of and belonging to the Southern Missouri Railway Company and received a deed therefor and by the terms of said deed no duty was imposed on the Illinois Southern Railway Company to pay for stock killed by the road selling to it. Burge v. Railway, 100 Mo.

— Hon. Frcmh R. Dearmg, Judge. (1) The policy provides that two conditions precedent shall be performed by the insured, if fire occurs : (a) “If fire occur the insured shall give immediate notice of any loss thereby in writing to the company.” This is the first condition precedent; and (b) “Within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company at its general office, signed and sworn to by said…

Louis City Circuit Court. — Non. Daniel D. Fisher, Judge. (1) The beneficiary in a fraternal benefit certificate has no vested interest therein. Masonic Ben. Assn, v. Bunch, 109 Mo. 579; Wells v. Mut. Ben. Assn., 126 Mo. 687. (2) In the absence of any laws of the association prescribing particular formalities for a change of beneficiary, any clear, definite designation of a different beneficiary will suffice.

Louis County Circuit Court. — Hon. J. W. McElhinney, Judge. (1) The petition does not state facts sufficient to constitute a cause of action, because it shows upon its face that each of the plaintiffs has a several interest and right of recovery; and it fails to allege that plaintiffs were (or would he) unable to obtain other like employment by reasonable efforts, during the period for which the employment was made (one year) and the petition further shows that the suit was…

Louis City Circuit Court. — Noto. Horatio D. Wood, Judge. (1) Even if Christian Pepper, in having this work done, had claimed or assumed or said that he was acting for the warehouse company, he would be liable personally because he had no power or authority to represent the company in that matter, as shown by the witnesses for defendant.

— Eon. L. B. Wood-side, Judge. The amendment to our Constitution, adopted at the election held on the eighth day of November, 1900, became operative on the nineteenth day of December, 1900. State v. Kyle, 166 Mo. 287; Girdner v. Bryan, 94 Mo. App. 27. This verdict is not in accordance with the common law, nor it is in accordance with the act of the legislature.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Where an application for a change of venue in the circuit court of the city of St. Louis is based upon grounds applicable to all of tbe judges of sucb city, the change of venue must be granted to some circuit outside of the city of St.Louis. Sec. 832, R.S.1899; sec. 2261, R.S. 1889; amend., Act 125, p. 92; State ex rel. v. Flournoy, 160 Mo. 324; Penfield v. Vaughan, 169 Mo. 371; Douglass v. White, 134 Mo. 234.

<p>Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.</p> <p>(1) The court erred in giving plaintiff’s Instruction No. 2 as to the measure of damages. Russell v. Columbia, 74 Mo. 480; Bradley v. Railroad, 138 Mo. 311; Chilton v. St. Joseph, 143 Mo. 199; Bigelow v. Railroad, 48 Mo. App. 374; Ross v. Kansas City, 48 Mo. App. 446; Pry v. Railroad, 45 Iowa 416; White v.. Railroad, 61 Wis. 636, 50 Am. Rep. 154; Hardy v. Railroad, 89 Wis. 187; Kucera v. Lumber Co., 91 Wis. 637; Cameron v. Trunk Line, 10 Wash. 507; Meeteer v. Railroad, 63 Hun 533, 18 N. Y. Sup. 561; Curtis v. Railroad, 18 N. Y. 534, 75 Am. Dec. 258; 3 Sutherland on Damages (Ed. 1884), page 261; 1 Sutherland on Damages (3Ed.), sec. 123, and vol. 3, sec. 944; 1 Joyce on Damages, secs. 244-245; Voorheis on Damages, page 72, sec. 46; Watson on Personal Injuries, secs. 302-303. (2) The proper way to draft an instruction of this character seems to be well settled by judicial precedents in this State. The jury should be instructed to find compensation “for all such damages which it appears from the evidence will reasonably result from her injuries in the future.”</p> <p>The instruction in using the words, “may hereafter suffer,” and “may hereafter lose,” was proper, because the word, “may” was qualified by the use of the words “if any,” the effect of which was to require the jury to find that the plaintiff “will” hereafter suffer bodily and mental pain or suffering before they could allow him any damages for any such pain or suffering hereafter, and required the jury to find that plaintiff “will” hereafter lose time in his business before they could allow him any damages for any loss of time hereafter. This form of instruction, using the qualifying words “if any” in connection with the word “may,” was approved in Duerst v. St. Louis Stamping Co., 163 M’o. 617; Railroad v. Mitten, 36 S. W. 285; Railroad v. Lups, 74 111. App. 420; Railroad v. Krempel, 103 111. App. 1. Because under the adjudications of the Supreme Court of Missouri, including the last adjudication by that court, which is controlling on the Courts of Appeal of this State, and because of a recent adjudication of the St. Louis Court of Appeals, the use of the word, “may” in an instruction on the measure of damages as objected to by appellant, will not be sufficient to warrant a reversal. Rodney v. Railroad, 127 Mo. 680; McLain v. Railroad, 100 Mo. App. 383-386.</p>

— Hon. Henry O. Pepper, Judge. (1) The court should have sustained defendant’s demurrer to the testimony. Admitting everything that the State proved there is absolutely no crime shown to have been committed under the charge and the law. There is bound to be a marked and well-defined difference between a tippling-shop and a dramshop.

— No». Houston W. Johnson, Judge. Tbe court erred in giving plaintiff’s instruction No. 2, instructing tbe jury that if they found for tbe plaintiff to allow bim tbe value of tbe property alleged in bis petition as sold by defendant to bim, wbicb did not belong to defendant, and tbe costs of tbe suit paid by plaintiff together with tbe attorney fee in defense of tbe title to said property.

<p>1. LIFE INSURANCE: Benefit Societies: By-Laws: Contract of Insurance. Where a policy of life insurance provides “that the constitution and by-laws printed on the back of this policy shall separately and collectively form and be a part of the contract,” the constitution and by-laws printed on the back of the policy thereby become a part of the contract of insurance.</p> <p>2. -: -: Changing By-Laws: Excessive Assessments. A mutual beneficiary life insurance association can not modify a contract of insurance without the express assent of the member insured, although such member in his application agreed to abide by the constitution and rules, as they then were, or might thereafter be constitutionally changed; and where a change was made materially increasing the assessments contrary to his contract, he could recover the excess in an action for that purpose.</p> <p>3. -: -: -: -: Unit of Assessment. Where a contract of insurance with a beneficiary association provided that the insured on his death should receive $3,000 plus the amount paid in assessments, the company could not, on the ground of necessity, increase the assessments by basing it on the $3,000 and accumulated assessments under $1,000, in the face of a provision of the contract that $1,000 should be the unit of assessment.</p>

<p>CONTEMPT OF COURT: Indeterminate Sentence. A commitment of one to prison for contempt of court, for a given time, is not void as being indeterminate by the addition of the phrase, “or until he shall be discharged according to law.”</p>

— Eon. Jas. T. Ne-ville, Judge. The action of three of the jurors in visiting the barn during the progress of the trial, and the action of one juror in discussing the case during the progress of the trial, is ground for a new trial. In this case a casual observation would naturally create an impression adverse to plaintiffs’ contention. 12 Am. Ency.

— Son. Edwin R. McKee, Judge. When a husband invests money of the separate estate of his wife and the title is taken jointly it creates no entirety of estate in the survivor, where there is no issue of said marriage, and there is no written consent of the wife for said investment. He is a trustee for her and her heirs, and her heir is entitled to a proportionate part of the land so purchased by such an investment.

<p>Appeal from St. Louis City Circuit Courts Hon. John A. Blevins, Judge.</p> <p>Parties cannot plead an express contract and claim a breach thereof, and then recover upon proof of a different cause of action. If the action is upon a special contract, the plaintiff must recover upon proof of the contract as laid or he cannot recover at all. Eyerman v. Cemetery Assn., 61 Mo. 489; Clements v. Yeats, 69 Mo. 623; Green v. Cole, 127 Mo. 587; Huston v. Tyler, 140 Mo. 252; McCormick v. Transit Co., 154 Mo. 191; Cole v. Armour, 154 Mo. 333; Raming v. Railroad, 157 Mo. 477; Construction Co. v. Iron Works, 169 Mo. 137; Murphy v. Bedford, 18 Mo. App. 279; Hough v. Surety Co., 90 Mo. $App. 475.</p>

<p>MISTAKE: Cancelling Release of Mortgage: Negligence. In an action to cancel a release of a deed of trust made by mistake, the holder of a junior incumbrance, made before the release, who would not be prejudiced by the cancellation, can not defend on the ground that the plaintiff negligently made the release.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. While it is not the practice of appellate courts in this jurisdiction to interfere with a finding of fact by the trial court, merely upon contradictory evidence, it will do so if there is no substantial evidence to support such finding. Bank v. Central Trust Co., 179 Mo. 648; Colonial Trust Co. v. McMillan,; Morelock v. Railroad, 87 S. W. 5; Reed v. Goldneck, 86 S. W. 1104.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. (1) The books, under the contract, were merely loaned to Reading; he was, therefore, simply a bailee, and hence without power to convey title, even to an innocent purchaser for value. Oyler v. Renfro, 86 Mo. App. 321; Moore v. Simms, 47 Mo. App. 182; Hendricks v. Evans, 46 Mo. App. 313.

<p>Appeal from St. Louis City Circuit Court. — Eon. Dan’l G. Taylor, Judge.</p> <p>The verdict is totally insufficient on which to predicate a judgment. We submit that the verdict of the jury is wholly meaningless and does not carry with it any punishment whatever. After saying in the verdict that they, the jury, find the defendant guilty of embezzlement by bailee, their verdict adds these words, “and assess the punishment at forty dollars.” State v. Coon, 18 Minn. 518; Favor v. State, 54 Ga. 249; Day v. People, 78 111. 380; Peo. X. L. v. Whatson, 74 111. 20; Camer v. Green, 1 Cox cc 269; 2 Thompson, Trials, sec. 2640.</p> <p>The main point relied on by appellant is, that the verdict is insufficient to support a judgment for the reason that the word “fine” was omitted. Verdicts are not required to be in any particular form; it is sufficient if they convey, in unmistakable terms to the court just what the jury mean; and a verdict “for 82.67 with interest at six per cent, from February 1, 1889 — -total amount 90.85,” is good, the word “dollars” being meant and understood. The Provo Mfg. Co. v. Severance, 51 Mr. App. 260. It is only when the verdict is silent on some element of the crime, that it will not support a judgment. State v. DeWitt, 186 Mo. 69.</p>

<p>1. PLEADING: Variance. Where an agent sued bis principal for commissions on goods sold by him and the petition alleged that the plaintiff was employed to sell defendant’s goods, generally, on commission, and bis evidence showed that bis contract was to sell a particular line of plaintiff’s goods, the proof was narrower than the petition, but comprehended by it, and there was no such variance as to void the judgment rendered thereon.</p> <p>2. PRINCIPAL AND AGENT: Misconduct of Agent. A general agent for the sale of his principal’s goods, who, during his agency procured the cancellation of orders taken by him for his principal in order to place them with another company in which he was interested, is guilty of such misconduct as to defeat his action for compensation for othei/ goods sold for his principal.</p> <p>3. PRACTICE: Presumption of Correct Finding. Where no declarations of law were given by the trial court to indicate the theory on which the verdict was rendered, the appellate court will presume that the trial court took a correct view of the law, if there was substantial evidence to support a verdict on that theory.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The appellant’s business being that of letting or furnishing rooms only to lodgers, and not extending to the furnishing or offering to furnish to any one food or victuals, it was not engaged in conducting a hotel business nor was the house an inn or hotel; nor was the appellant a “guest,” but a mere lodger.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. (1) The court should have given the peremptory instruction for plaintiff. There was no evidence to support the defense in the case. Muth v. St. Louis Trust Co., 77 M'o. App. 493; Breckenridge v. White, 93 Mo. App. 681; Dunbar v. Fifield, 85 Mo. App. 484; Shoot v. Dorian, 36 Mo. App. 177; Woodson v. Richie, 36 Mo. App. 506.

<p>JURISDICTION: Constitutional Question. Where, in an action for personal injuries, an ordinance, offered by the plaintiff and introduced in evidence, was objected to by defendant on the ground that it was in conflict with section 30, article 2, of the Constitution of the State, and in conflict with the fourteenth amendment of the Constitution of the United States, a constitutional 'question is raised and the Court of Appeals has no jurisdiction.</p>

— Hon. Frank R. D earing, Judge. The court erred in overruling defendant’s demurrer to the evidence, and in refusing its requested peremptory instruction. Zurfluh v. Railway, 46 Mo. App. 636; Cogan v. Railway, 101 Mo. App. 179; Barrie v. St. Louis Transit Co., 102 Mo. App. 87; Spiro v. St. Louis Transit Co., 102 Mo.

<p>1. PRACTICE: Nonsuit on Mistaken Statement. In an action for damages on account of personal injuries, the plaintiif should not be nonsuited on account of a statement made against her interest, in the excitement of cross-examination, where all the facts showed that she was mistaken in the statement.</p> <p>2. PERSONAL INJURIES: Elements of Damage: Contributory Negligence in Treatment. In an action for damages on account of personal injuries an instruction setting forth the elements of damage to be considered by the jury was not erroneous for failure to include the hypothesis of contributory negligence in treating plaintiff’s injuries, when there was no evidence to show that she was negligent in the treatment.</p> <p>3. -: Excessive Verdict. Where, in an action for personal injuries, .the evidence showed that the plaintiff received a wound on the leg below the knee, which caused great suffering, was infected with gangrene, and disabled her from work for four months, during a great part of which time she was in bed and under the treatment of physicians, a verdict for $2,100 was not excessive.</p>

<p>1. AGENCY: Attorneys’ Fees. Where an agent for an administrator employed an attorney to perform necessary services of •which the administrator received the benefit, he was liable to such agent for a reasonable sum paid by the agent for such services.</p> <p>2. RESCISSION: Prompt Action. A party who has been induced to enter a contract through fraud can not treat it as rescinded and recover the consideration paid unless he promptly demands rescission after discovering the fraud.</p> <p>3. -: Waiver. If be permits unreasonable delay in bis demand to rescind, accompanied with acts wbieb recognize tbe contract as in existence, this will be construed as condoning tbe fraud and acquiescing in tbe validity of tbe contract.</p> <p>4. -: -: Promissory Note. Where tbe payee of a note due two years after date claimed that, being unable to read English, be was induced to accept it by tbe maker’s representing it to be a demand note, but waited six months after discovering tbe true tenor of tbe note, and collected three installments of interest on it, before be demanded tbe principal, be waived bis right to rescind.</p> <p>5. -: -: Revoking Waiver. One who has once waived his right to rescind a contract on tbe ground of fraud, cannot afterwards revoke his waiver.</p>

<p>Appeal from St. Louis City Circuit Court. — Son. Warwick Sough, Judge.</p> <p>(1) The defendant was not negligent jn having the track in an incomplete condition, with half the full number of ties and the rails not permanently fastened to the ties, for the work was that of construction. Holloran v. Union Iron & Foundry Co., 133 Mo. 470; Railroad v. Henderson, 134 Ind. 636; Armour v. Hahn, 111 U. S. 313, 28 L. Ed. 440; Heald v. Wallace, 109 Tenn. 346. (2) The defendant was not negligent in backing the construction train down over the uncompleted track, according to the regular practice, and after a warning had been given, which the plaintiff heard. Greenwall v. Railroad, 49 Mich. 197, 200; Ring v. Railway, 112 Mo. 230; Loring v. Railway, 128 Mo. 349; Evans v. Railroad, 178 Mo. 508. (3) The defendant was not negligent in directing the plaintiff to fasten the angle-bars to the rails after the rails were laid on the ties, instead of doing the fastening while the rails were on the pioneer car. Harrington v. Railroad, 104 Mo. App. 663. ■ (4) The plaintiff assumed all risks of doing the work in the manner in which it was being done at the time of the accident. Aerkfetz v. Humphreys, 145 U. S. 418; Railroad v. Jackson, 12 O. C. A. 507, 65 F. 48.</p> <p>(1) The appellant was guilty of negligence in requiring the respondent to attach the angle-bars to the rails while on the ground in front of the train, and in causing the train to back up and thus failing to protect respondent while at work. Moore v. Railroad, 85 Mo. 588; Dayharsh v. Railroad, 103 Mo. 570; Spotts v. Railroad, 111 Mo. 380. The law presumes that respondent was in the exercise of ordinary care. Buesching v. The St. Louis Gaslight Go., 73 Mo. 219; Parsons v. Railroad, 94 Mo. 286. (2) It is well settled that “the fact that an employee is directed by his superior in charge to do an act at a time and under such circumstances that a person would reasonably apprehend danger would not justify his disobedience of such orders, and obedience is not negligence.” Dowling v. Allen & Co., 74 Mo. 13; Stephens v. Railroad, 96 Mo. 207. (3) “It is only when the defect is glaring that with the utmost care and skill the danger is still imminent, so that none but a reckless man would incur it, the servant assumes the risk.” Conroy v. Vulcan Iron Works, 62 Mo. 35; Schroeder v. Railroad, 108 MO'. 322; Monahan v. The K. C. Clay & Coal Co., 58 Mo. App. 68. Usually, the question is one for the jury, and a nonsuit or demurrer to the evidence is not permissible. Thorpe v. Railroad, 89 Mo. 650; Hamilton v. Mining Co., 108 Mo. 364. Assumption of risk is a matter of defense; and to be available must be pleaded. Alcorn v. Railroad, 108 Mo. 81.</p>

— Hon. Moses N. Sale, Judge. (1) Evidence of a general reputation for uncbastity is admissible for tbe purpose of affecting tbe credibility of a witness. State v. Sbroyer, 104 Mo. 446; State v. Hack, 118 Mo. 96; State v. Raven, 115 Mo. 423. (2) In this State you are not confined, for tbe purpose of affecting tbe credibility of a witness, to proving tbe general reputation of tbe witness, but may show that tbe witness bas particular vices.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. The duty to take precaution to prevent accident is not to be extended to apply to tracks laid over a right of way acquired through private property. Booth on Str. Rys., 290; Harvey v. Railroad, 186 111. 282; 51N. E. 8.57; Cooper v. Johnson, 13 N. Y. Sup. 151.

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. Appeal from order granting a new trial on motion of plaintiff. (1) It is also true that a demurrer to the evidence in a jury trial invokes a conclusion of law, and admits every material fact proven and every inference that can be reasonably and logically drawn from the testimony, but it must be legal evidence and not mere guess or conjecture. Galbout v. Clark, 24 Mo. App. 426; Mueller v. Gillick, 66 Mo. App. 504.

Louis City Circuit Court. — Eon. Wm. M. Kinsey, Judge. The statement of plaintiff’s case upon which he seeks to recover is legally defective. Defendant’s objection to the introduction of any evidence in support of said statement should therefore have been sustained.

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. From the order of the court sustaining a motion filed by plaintiff to set aside a voluntary nonsuit, the defendant appealed. (1) The lien paper filed by plaintiff, and upon which this action is bottomed, wholly fails to comply with the requirements of the law. It must state all the items, so as to be able to determine therefrom if same are lienable.

Louis City Circuit Court. — Hon. Jessé A. McDonald, Judge. The court erred in sustaining respondent’s motion for a new trial upon the ground that the verdict was ag’ainst the weight of the evidence. Every fact essential to a recovery was supported by the evidence. Stagg v. Edward Westen Tea & Spice Co., 169 Mr. 489; Dallemand v. Saalfeldt, 175 111. 310.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Defendant’s instruction in the nature of a demurrer, offered at the close of plaintiff’s case, should have been given. There was no evidence to show that plaintiff was injured by reason of a defect in the harness. This was the only issue in the case. Dunn v. Railroad, 21 Mo. App. 188; Karle v. Railroad, 55 Mo. 476. (2) The negligence of the defendant was too remote. Stanley t. Railroad, 114 Mo. 606.

<p>1. ANIMALS: Impounding: Ordinance: Decision. This ease is affirmed on the authority of Spitler v. Young, 63 Mo. 42, although conflicting with McVey v. Barger, 92 Mo. App. 489, and Jeans v. Morrison, 99 Mo. App. 208, and is therefore certified to the Supreme Court.</p> <p>2. -: -: -: -. Arguendo, the changed condition relating to fences, since the decision of the ease of Spitler v. Young, supra, is noted.</p> <p>3. -: -: -: -: Offense. Arguendo, the difference between impounding an animal found at large and convicting the owner of an offense, is likewise noted.</p>

<p>Appeal from Chariton Circuit Court. — Eon. Jno-. P. Butler, Judge.</p> <p>(1) Under the undisputed facts in evidence the plaintiff was not entitled to recover. Kellerman v. Railroad, 136 Mo. 178; Durenick v. Railroad, 57 Mo. App. 556; .Wyrick v. Railroad, 74 Mo. App. 406; Bowring v. Railroad, 77 Mo. App. 250; s. c., 90 Mo. App. 324; Vaughn v. Railroad, 78 Mo. App. 639; Witting y. Railroad, 101 Mo. 640. The plaintiff was not entitled to recover in this action, any damages whatever in behalf of either J. H. Summers or W. H. McCormack, who are not parties to this action. R. S. 1899, sec. 540. (2) The court gave erroneous instructions, at plaintiff’s request, as well as of its own motion. Authorities cited supra; Galbreath v. Carnes, 91 Mo. App. 512; Holwerson v. Railroad, 157 Mo. 244. (3) There is an “irreconcilable conflict” between the instructions given at the request of plaintiff and those given by the court below of its own motion, so that it is impossible to tell which guide the jury followed. In any event, they were certainly confused and misled. Quirk v. Elevator Co., 126 Mo. 295; White v. Ins. Co., 93 Mo. App. 282.</p> <p>(1) As common carrier it was the duty of defendant to deliver the stock at its destination within a reasonable time. Levering v. Ins. Co., 42 M'o. 95; Reed v. Railroad, 60 Mo. 206; Rice v. Railroad, 63 Mo. 314; Davis v. Railroad, 89 Mo. 349-50; Witting v. Railroad, 101 Mo. 640; Ginn v. Railroad, 20 Mo. App. 461; Doan v. Railroad, 38 Mo. App. 413 and 414; Vaughan v. Railroad, 78 Mo. App. 641-3-4; Davis v. Railroad, 89 Mo. 349; Milling Co. v. Transit Co., 122 Mo. 276. (2) This was an interstate shipment and must be governed by the provisions of the interstate commerce law. By the provisions of this law the defendant is required to file with said commission its schedule of rates applicable to shipments of this kind between the points in question. And the parties, whether carrier or shipper, are held to have contracted with reference to these rates regardless of any provision that may have been inserted in the contract by the parties for “the rates of interstate shipments are not the subject of contract, but are in effect, fixed under the law.” Gerber v. Railroad, 63 M’o. App. 148; Wyrack v. Railroad, 74 Mo. App. 417; Ward v. Railroad, 158 Mo. 226; Sec. 6, Interstate Commerce Law, R. S. U. S. 1901, p. 3156. (3) We submit that under the law the waiver of the affidavit was as full and complete as it could have been, and the defendant will not be permitted to take advantage of it after receiving the claim and negotiating with the plaintiff for a settlement. The question was submitted to the jury under a proper instruction and the defendant is bound by that finding. Hamilton v. Railroad, 80 Mo. App. 597; Hess v. Railroad, 40 Mo. App. 202; Hamed v. Railroad, — Mo. App. 482; Richardson v. Railroad, 62 Mo. App. 1.</p>

— Hon. James Gibson, Judge. (1) The amended petition cannot be held to be an amendment of the original petition, but must be held to be a substitute for said petition. Field v. Maloney, 28 Mo. 174; Scarritt y. Glasner, 79 Mo. 452; Sims v. Field, 24 Mo. App. 565; Buell v. Transfer Co., 45 Mo. 565; Bernard v. M'ott, 59 Mo. App. 408; Bricken v. Cross, 63 Mo. 449.

— No». J. N. Slover, Judge. (1) The injunction ought to have been made perpetual. Parks v. Bank, 97 Mo. 130; Pawley v. Vogel, 42 M'o. 291, 303; R. S. 1899, sec. 3649. (2) The title of the real estate is not involved and the appeal is to this court. State v. Court of Appeals, 67 Mo. 199. (1) If the title to real estate is not the issue in this case then plaintiff’s petition certainly states no 'cause of action.

— Eon. Shannon C. Douglass, Judge. (1) No vested interest in or to any fund accrued to the member in his lifetime; no legal right to the wholly contingent death benefits could arise or vest by any agreement between the member and non-member, aside from the rules of the society and lacking its assent. Richmond v. Lodge, 100 Mo. App. 8; Police Assn. v. Strode, 103 Mo. App. 694; Voelker v. Grand Lodge, 103 Mo. App. 637; Laker v. Frat. Union, 95 Mo.

— Eon. Shannon G. Douglass, Judge. (1) The judgment should be reversed because the trial court erred in not sustaining defendant’s demurrer to the evidence at the close of plaintiff’s evidence in chief, and also erred in not peremptorily instructing the jury at the close of all the evidence, to find for defendant.

<p>1. PLEADING: Petition: Conclusions of Law: Inferences of Fact. Every fact constitutive of the cause of action must be pleaded to warrant proof thereof, and a conclusion of law cannot take the place of such fact; but an ultimate fact which is a corollary from other facts is still a fact, and the means by which its existence is to be established need not be pleaded.</p> <p>2. COMMON CARRIERS: Pleading: Petition. A petition against a carrier for delay in delivery is held sufficient since its reasonable construction means that the carrier unreasonably delayed putting the cars in the proper place for unloading after they reached their destination, which was its duty.</p> <p>3. -: Duty to Deliver: Consignee’s Assignee. The consignee’s assignee has the same right to require the carrier to reasonably deliver the goods that the assignee has, and the assignment does not release the carrier from its obligation.</p> <p>4. -: -: -: Bill of Lading: Waiver. The possession of a bill of lading is not indispensable to the transfer of the consignee’s rights. Such transfer may be otherwise evidenced; and the carrier waives such formality when he verbally agrees with the consignee to deliver to his assignee and thereafter recognizes the assignee’s ownership.</p> <p>5. -: -: ¡Act of God. A carrier is not liable for delays in delivery occasioned by unanticipated catastrophe; but if he fails to give notice of and contract against the delay so occasioned, he thereby agrees to deliver within a reasonable time except in case of subsequent occurrences.</p> <p>proves ownership of goods and their delivery to the carrier for carriage to a certain point and the failure to deliver within a reasonable time, he makes his case and the carrier must show the delay was caused by some fortuitous happening that excuses the delay or that the shipper was informed that prompt delivery could not be made, and an instruction set out in the opinion is approved. Order of Proof: Instruction. When plaintiff</p>

— Hon. J. H. glover, Judge. (1) In support of first and second assignments of error, section 214, Revised Statutes 1899, gives plaintiff his remedy, and only remedy. Clark v. TMas, 173 Mo. 628, pages 636, 637 and 643. (2) In support of third, fourth, fifth and sixth assignments of error, see 2 Story Eq. (12 Ed.), sec. 1572, page 793; 1 Spelling on Injunction (2 Ed.), sec. 85, page 106; 1 Herman Estoppel and Res Judicata, sec. 242, page 277; 16 Am. and Eng.

— Hon. L. H. Walters, Special Judge. (1) The demurrer to the evidence ought to have been sustained: there was no evidence of failure to keep a watchman, nor of failure to keep a reasonable lookout, but on the contrary both were affirmatively shown to have been done. Edens v. Railroad, 72 Mo. 213; Yarnell v. Railroad, 113 Mo. 580; Hite v. Railroad, 130 Mo. 138; 2 Fetter Carriers of Passengers, sec. 480..

— Hon. J, D. Perldns, Judge. (1) Even if this case should have gone to the jury at all (which, we deny) instruction numbered lis palpably erroneous and must reverse the judgment, because it is unintelligible and could have had no other effect than to mislead the jury. Assurance Co. v. Norwood, 57 Kan. 610; Sowers v. Ins. Co., 113 la. 551; Gray v. Ins. Co., 1.55 N. Y. 180; Hartford Co. v. Davenport, 37 Mich. 609; Bourgeois v. Ins. Co., 86 Wis. 606.

— Eon. A. D. Bumes, Special Judge. (1) The statute authorizes this proceeding. R. S. 1899, sec. 5217; Fore v. Hoke, 48 M’o. App. 254; Cemetery Assn. v. Danielson, 62 Conn. 819; 5 Am. and Eng. Ency.

— Son. A. D. Burnes, Judge. (1) The organic law of cities of the. fourth class is found in article 5, chapter 91, of the Revised Statutes, and it is therein provided that every act of the city, which involves the expenditure of money, or the improvement of streets, must be evidenced by an ordinance. The forms to be observed in the enactment of such ordinance is prescribed by the Legislature. R. S. 1899, sec. 5954, 5955, 5956, 5979, 5989; Crutchfield v. Warrensburg, 30 Mo.

— Son. J. W. Alexander, Judge. (1) I do not find where the specific question raised in respondent’s demurrer, or at least the point raised in trial court in his argument, has been decided by any court; but the case, State ex rel. v. Telephone Company, 93 Mo. App. 342, is decisive of the principle involved.

— Son. A. S. Waller, Judge. (1) Both the agreement and the mistake must be made out by the clearest evidence, according to the understanding of both parties as to what the contract was intended to be, and upon testimony entirely exact and satisfactory; and it must appear that the mistake consisted in not drawing up the instrument according to the agreement that was made/ Tesson v. Ins. Co., 40 Mo. 36; 2 Pomeroy’s Eq. Jur., sec. 870; Kerr on Fraud and Mistake (Am. Ed.), 409.

— Hon. Nat. M. Shelton, Judge. (1) There was complete failure of proof of the material allegation in the petition, upon which alone, if at all, the plaintiff was entitled to recover. Gibbs v. Railroad, 104 Mo. 276; Campbell v. Railroad, 121 Mo. 341; Conner v. Railroad, 181 Mo. 411; Galm v. Railroad, 87 S. W 1015. (2) The plaintiffs are not entitled to recover m this action, either as assignees, sublessees or partners of C. R. England.

— Hon. Samuel Dams, Judge. (1) In considering the instructions in the nature of a demurrer to the evidence, every reasonable intendment in favor of the plaintiff must be drawn and the evidence offered in his behalf must be regarded as absolutely true. Gratiot v. Railroad, 116 Mo. 466; Kenny v. Railroad, 105 Mo. 285. (2) The violation of such, ordinances being negligence per se, it logically follows that actions for damages for their violation may be based thereon.

— Hon. W. W. Graves, Judge. (1) It is respectfully submitted that the law is, if a real estate broker is the procuring cause of the sale, that is, finds the buyer, he is entitled to his commission. Ramsey v. West, 31 Mo. App. 676; Pollard v. Banks, 67 Mo. App. 187; Wright v. Brown, 68 M'o. App. 577; Marlatt v. Elliott, 77 Pac. 104.

— Eon. J. D. Perlcins, Judge. (1) The procedure of collecting delinquent taxes is a matter of statutory creation, and no means can be resorted to to coerce their payment, except such methods as are pointed out in the statute. State ex rel. v. Snyder, 139 Mo. 549; Carondelet to use v. Picot, 38 Mr. 125; The State v. County Court, 13 Mo. App. 53; State ex rel. v. Goodnow, 80 Mo. 271.

— Hon. Nat. M. Shelton, Judge. (1) The action is civil, was so held as early as St. Louis v. Smith, 10 Mo. 438. And the courts have not since departed from that ruling. Bluff v. Hill, 92 Mo. App. 19; Springfield v. Starke, 93 Mo. App. 741. And is to be governed by the rules applicable to civil procedure. In re Miller, 44 M'o. App. 125. The cause being civil, jurisdiction of the person could be obtained as in any other civil suit. In re Ada Jones, 90 Mo.

— Eon. W. O. Ellison, Judge. (1) It is a well-settled rule in this State that a cause of action cannot be changed on appeal and a new cause substituted. E. S. 1899, sec. 4077; 33 Mo. App. 50; 46 Mo. App. 275; 67 Mo. App. 255. (2) The guarantor has the right to avail himself of any defense that the maker has to the contract. 141 Mo. 443, and cases cited. (3) That which avoids the obligation of the principal releases the guarantor. 27 Mo. App. 371.

— Hon. Alonzo D. Btimes, Acting Judge. (1) The petition does not state a cause of action in favor of plaintiffs and against defendants. Although the petition does allege that the bond for cost in question was filed “to secure plaintiffs as defendants in said suit for all costs that had accrued or might accrue in said cause and which should be adjudged against plaintiff.

— Hon. Henry M. Banney, Judge. (1) No declarations of law were necessary to enable this court to review the action of tbe trial court. Price v. Merritt, 55 Mo. App. 640; Gage v. Averill, 57 Mo. App. Ill; State v. Mackey, 55 Mo. 51; Ford v. Cameron, 24 Mo. App. 467; Kronenberger v. Hoffner, 44 Mo. 185; State ex rel. v. Cummings, 151 Mo. 49.

<p>1. JUDGMENT: Separate Counts: In Solido: Execution. Where there are separate counts in a petition the plaintiff is entitled to a finding on each count and also to a judgment in solido on such findings; hut where there are separate judgments on each count there is nothing left hut the clerical duty of the clerk to enter a judgment in solMo in completing his record; and he can so treat it and issue an execution for the sum total.</p> <p>2. -: -: Execution: Costs. Where there is a judgment entered on the separate counts and.no judgment in solido entered, separate executions cannot issue on the separate counts; and where the judgments on certain counts are reversed and the judgment for costs is attached to one of these reversed judgments, one execution may still issue for the total amount of the unreversed counts and for all the costs, since the reversal of the count on the merits does not reverse the judgment for costs attached thereto.</p>

— Hon. John P. Butler, Judge. (1) The ticket sold to the plaintiff was not a contract for through transportation, but was the separate contract of each line of railway over which its coupons provided for transportation, and, therefore, the defendant is not liable for the loss of baggage by a connecting line, inasmuch as the contract signed by the plaintiff expressly provided that the defendant should not be so liable. 3 Am. and Eng.

— Hon. Jamies E. Ha-sell, Judge. (1) The application of the money in the hands of the sheriff, to the payment and satisfaction of the executions, extinguished the judgment. The judgment in contemplation of law was paid, and there could be no suit maintained on a judgment that had been paid and satisfied. Mill Company v. Sugg, 83 Mr. 476; Wyatt v. Fromme, 70 Mo. App. 613.

— Eon. James E. Easell, Judge. (1) The instruction, in the nature of a demurrer to the testimony, should have been given for the reason that it appears on the face of the mortgage that the mortgagor was to retain possession of the property and sell and dispose of the same and turn the money over to the plaintiff, who was the mortgagee. Mercantile Co. v. Perkins, 63 Mo. App. 314; Randol v. Buchanan, 61 Mo.

<p>1. OFFICES AND OFFICERS: Sheriff’s Bond: Attachment: Conversion: Limitation. Where a sheriff sells attached goods under order of the court and is sued by an adverse claimant in conversion, while different in form, the latter suit is equivalent in effect to an interplea, and the issue is in reality between the plaintiff in attachment and the plaintiff in conversion as to the ownership of the goods or their money value; and the plaintiff in the attachment can not demand the money of the sheriff until the suit in conversion is finally settled, and limitation then first begins to run.</p> <p>2. -: -: -: -: -. The fact that the plaintiff in conversion on appeal fails to give an appeal bond can not alter the rights of the parties. .</p> <p>3. -: -: -: -: -: Statute. Under section 393, Revised Statutes 1899, action does not accrue against a sheriff for failure to turn over the money secured in attachment until ordered by the court to turn the same over, since he holds the money for the court and must obey its mandate, and limitation does not begin to run until such order.</p> <p>4. -: -: -: Creditors: Registry. Plaintiffs in attachment who have not settled with the sheriff are negligent in permitting him to go out of office without an order requiring him to pay the fund into the registry of the court; but the termination of his office does not require him to do this without an order, and his failure in this respect is no breach of his bond.</p> <p>5. -: -: Successive Sureties: Presumption. When the sheriff’s term expires and he gives a new bond, the presumption is that he had done his duties during his former term, and any subsequently discovered default is presumed to have been under the second bond, and such presumption must be overcome to recover on the first bond.</p> <p>6. -: -: -: Time of Default. However, the time of actual default and not the technical breach imposes the obligation which ripens into a cause of action upon the officer’s refusal when legally called to account.</p> <p>7. -: -: -: -: Evidence. Evidence reviewed and held to show the actual default occurred under a former bond.</p> <p>8. -: -: Practice: Burden of Proof. When the burden of proof is upon the plaintiff to show when a default occurred, if the defendant assumes to show when it occurred, he should show the whole truth within his knowledge and his failure to do so justifies the inference that it arises from a knowledge of its hostility to his defense, which inference is legitimate, since the ultimate fact is not required to be proved by direct and positive evidence.</p>

— Hon. Nat. M. Shelton, Judge. (1) If the provisions for the payment of excessive interest is dependent on a contingency, which the borrower may avoid by paying the debt with legal interest, the loan will not be deemed usurious. State v. Elliott, 61 Kan. 518; Lloyd v. Scott, 4 Pet. 205; Gambril v. Doe, 8 Black. (Ind.) 140; Fisher v. Anderson, 25 Iowa 28; Weatherby v. Smith, 30 Iowa 131; Righter v. Warehouse Co., 99 Pa.

— Hon. A. F. Evans, Judge. (1) A judgment by default cannot be set aside after final judgment, under the statute. Matthews v. Cook, 35 Mo. 286; Burns v. Bums, 61 Mo. App. 617. (2) Unless for irregularity “patent upon the record,” the circuit court has no power to vacate a judgment upon a motion after lapse of the term.

— Hon. Paris G. Stepp, Judge. (1) Pullen’s covenant that he was seized of an indefeasible estate in fee was a covenant of indemnity that runs with the land and a cause of action for the breach thereof is assignable. Upon the conceded facts plaintiff was assignee of defendant’s covenants and should have recovered. A sheriff’s or trustee’s deed is effectual as an assignment. Bernard v. Duncan, 38 Mo. 170; Johnson v. Johnson, 170 Mo. 34.

— Eon. J. E. glover, Judge. (1) So far as Pratt is concerned, and on the issue made by the petition and answer, there is no escape from the conclusion of the referee, that Pratt did not bny the brick sued for from plaintiff, nor did plaintiff sell, or deliver to Pratt the bricks sued for. Rules 46, 47, chap. 9, Dicey on Parties; Anderson v. Longdon, 1 Wheat. 85; Shear v. Mallory, 13 Johns. 497; 2 Whart. Cont., sec. 784;, Bliss on Code Pldg., sec. 90.

— Hon. J. W. Alexander, Judge. (1) The indictment in this cause is fatally defective. There is no venue stated on the margin, and nothing to show that the deliberations of the grand jurors took place in Livingston county, Missouri. It is signed by J. H. Lowe, foreman, and Frank S. Miller, prosecuting attorney.

— Eon. Paris G. Stepp, Judge. (1) The court erred in permitting the plaintiff to amend the second count of his petition on its face, by adding after the word “aforesaid,” the following words: “and by reason of the unsafe condition of said car, the jolting and wabbling thereof.” Without this amendment the only cause of action alleged was that the lining bar, by reason of the unsafe, dangerous and negligent manner in which the same was loaded and carried, jostled and fell from…

— Eon. Wm. G. Ellison, Judge. (1) The draft sued upon, with the evidence showing that the same had been presented for payment and payment refused, should have been admitted. R. S. 1899, sec. 445; Brinkman v. Hunter, 73 Mo. 172; Wallace v. McConnell, 13 Peters (U. S.) 136; Cox v. Bank, 100 U. S. (10 Otto) 704; Norton on Notes and Bills (3 Ed.), pp. 144-145; Clark v. Skeen, 49 L. R. A. 190; Bullock v. Taylor, 39 Mich. 137; Hastings v. Thompson, 54 Minn. 184; 2 Daniel on Neg.

— Eon. Wm. G. Ellison, Judge. (1) Tbe acts of tbe agent bind tbe principal only when witbin tbe scope of bis authority, or when tbe principal has by ratifying them made the unauthorized acts of the agent his own. Flesh v. Lindsay, 115 Mo. 1. (2) In the absence of express appointment of ratification or of an estoppel there is no evidence of agency. Alexander v. Rollins, 84 Mo. 657.

— Eon. A. E. Waller, Judge. (1) The evidence was not sufficient to establish that a contract was entered into between the plaintiffs and defendant’s agent. Gann v. Railroad, 65 Mo. App. 670. (2) The trial court committed error in permit-' ting two of the plaintiffs, Mr. Greene and Mr. Fountain, to testify to the contents of a telegram that they received from the Drnmm Commission Company, to the effect that the price of cattle had gone down fifteen cents.

<p>EVIDENCE: Damages: Decline ,in Price of Stock: Telegram: Prejudice. A telegram stating a decline in tbe stock market at a given time is incompetent evidence and so prejudicial as to warrant a reversal. Fountain et al. v. Wabasb Railroad Company, 114 Mo. App. 676, followed.</p>

— Eon. John P. Butler, Judge. (1) Under respondent’s own testimony she is not entitled to recover, as she had au opportunity to examine the cloak and did so, to her satisfaction, before paying for it. She had every opportunity to use her senses before she consummated the deal. She cannot now be heard to complain. Mires v. Summerville, 85 Mo. App. 183, and cases cited. (2) Under such circumstances the law presumes that one will take care of himself.

— Hon. Alomo D. Burnes, Judge. (1) A school district is a quasi corporation, and can exercise only such powers as are given it by the statutes and only in the way provided by statute. Buchanan v. School District, 25 Mr. App. 85; Frazer v. School District, 24 Mo. App. 250; Rudy v. School District, 30 Mo. App. 1. c. 117; Cheeney v. Brookfield, 60 Mo. 53; Johnson Co. v. Wood, 107 Mo. 1. c. 515. (2) .

— Eon. Alomo D. Burnes, Judge. (1) Tbe action of tbe court in giving tbe peremptory instruction on tbe part of tbe plaintiff was proper; and tbe court committed error in sustaining defendants’ motion for a new trial. Bank v. Bank, 109 Mo. App. 665; Poindexter v. McDowell, 110 Mo. App. 233.

— Hon. Alonso D. Burnes, Judge. (1) The motion to dismiss on account of alleged submission to arbitrate should have been overruled: First, because there was no submission; second, no arbitrators were chosen and no tribunal constituted; third, one arbitrator, appointed by defendant was interested and incompetent; fourth, the whole controversy was not attempted to be submitted.

— Hon. Hugh O. Dabls, Judge. (1) The contracts of option given by the owners to plaintiffs were complete in their terms, and the court was right in excluding oral evidence of the negotiations leading up to their execution. These negotiations are conclusively presumed to be merged in writing. Mc-Clurg'v. Whitney, 82 Mo. App. 625; Howard v. Scott, 98 Mo. App. 509; Ins. Co. v. Buchalter, 83 Mo. App. 504; Tufts v. Morgan, 87 Mo. App. 98; Blake Mfg. Co. v. Jaeger, 81 Mo. App. 239.

— Eon. A. E. Waller,, Judge. (1) Under tbe law, clearly there is given no power to directors to make any contract for tbe payment of any officer for services not performed. If sucb is tbe law, then any contract to give wages for sucb unearned services are clearly void for want of consideration.

— Ron. Joshua JF. Alexander, Judge. (1) The widow having elected to take a child’s share under the statute, subject to the payment of its debts, thereby became a distributee or heir of said estate and was not entitled to the statutory allowance of $40(X Griffith v. Canning, 54 Mo. 284; Chinn v. Stout, 10 Mo. 711; Newton v. Newton, 162 Mo. 186.

— Hon. W. G. Ellison, Judge. (1) The trial court erred in granting , a new trial to respondents upon the grounds in its orders for new trial stated, one and two; and this court cannot sustain such order granting a new trial upon any other grounds, unless the order for new trial was correct upon some of the grounds stated in defendant’s motion for new trial. Bradley v. Reppell, 133 Mo. 547; Itner v. Hughes, 133 Mo. 689; Wagner v. Edison Elec. Co., 177 Mo. 1. c. 60.

— Eon. A. F. Evans, Judge. The court should have given the instruction in the nature of a demurrer asked by the defendant at the close of plaintiff’s testimony, for the reason that such testimony failed to show that the defendant was responsible for the condition of Fifteenth street at the place of the accident, or that it was its duty to keep such street at that place in a reasonably safe condition.