Volume 115 — Missouri Appeal Reports

— Eon. Alonzo D. Burnes, Judge. (1) The contract and intent of the tenant and his assignees being that the cornstalks and grass grown on the leased land should not be cut and removed, but the land should be used by the assignees for consumption of stalks and grass continuously on the land until the end of the lease, the stalks and grass were a real estate interest and not personalty. McClintock’s Appeal, 71 Pa. ,366; Benjamin on Sales (4 Am.

Original Proceeding by Prohibition. (1) Plaintiffs in the injunction suit bad no capacity to sue for tbe following reasons: (a) they could not sue as a court; (b) they could not sue as agents of the county; (c) they have no direct or special interest in the subject-matter which would authorize them to be complainants. State y'.

— Hon. William C. Ellison, Judge. (1) The appellant contends that the information is fatally defective: first, because it does not state the kind of table the defendant was the licensed keeper of; second, that it fails to state that the defendant permitted the minor to play on such table any game for which such tables are used; it does not charge that the minor was permitted to play any game with balls and cues.

— Now. Ghesley A. Mosman, Judge. (1) The court erred in sustaining the defendant’s motion to dismiss. (2) Jurisdiction over the subject-matter is defined by all courts of last resort and law-writers to be “the power inherent in the court to hear and determine a given class of cases.” The jurisdiction of the court over the subject-matter is determined by the pleadings. Dowdy v. Wamble, 110 Mg'. 280; Babb v. Bruere, 23 Mo. App. 604; State ex rel. v. Smith, 104 Mo. 419.

— lion. Alexander E. Waller, Judge. (1) Change of ownership of the property without notice or knowledge thereof by the trustee or mortgagee constitutes no defense to this action. Señor v. Ins. Co., 181 Mo. 104; Boyd v. Ins. Co., 55 L. R. A. 165; Bank v. Ins. Co., 32 L. R. A. 615; 3 Joyce on Insurance, sec. 2320; Boynton v. Ins. Co., 16 Barb. (N. Y.) 254; Ins. Co. v. Williams, 63 Fed. Rep. 925. (2) The acts of defendant’s secretary and agent were the acts of defendant company.

<p>Appeal from Linn Circuit Court. — Hon. John P. Butler, Judge.</p> <p>(1) No gift was pleaded; nor was there evidence in support of it. Bliss on Code Pleading, 352; Swartz Co. v. Vanstone, 62 Mo. App. 241; Northrup v. Ins. Co., 47 Mo. 435; Mu-sser v. Adler, 86 Mo. 445; Manufacturing Co. v. Ball, 43 Mo. App. 504; Kersey v. Garton, 77 Mo. 645 ; Plow Co. v. Wayland, 81 Mo. App. 305; Russell v. Whitely, 59 Mo. 196. (2) The court gave the plaintiff’s declaration of law, numbered 4, and having found the facts to be as hypothecated therein, the court should have rendered judgment for plaintiff for the full amount of the note sued on, and foreclosed the mortgage, and erred in not doing so. If the “receipt, in evidence, for $1,450 had no valuable consideration,” on account of any indebtedness, “to support it,” then it was and is a nullity as a payment. Land Co. v. Rhodes, 54 Mo. App. 129; Aull v. Trust Co., 149 Mo. 1-17; 19 Am. and Eng. Ency. of Law (1 Ed.), pp. 1115-1116. (3) There was no issue in the case as to a gift from M'rs. White to the defendant, Mrs. Black, and if there had been evidence with respect to such gift, it could have been of no avail to the defendant. “An affirmative defense is of no avail if not pleaded, though the testimony disclose it.” Dinglidein v. Railroad, 9 Bosw. (N. Y.) 79; Swartz Bros. Com. Co. v. Vanstone, 62 Mo. App. 2áá. (4) The case is an action at law under the statute, and not a suit in equity. R. S. 1899, secs. 4342, 43*43, 4348; Smith v. Finn, 77 Mo. 499; Thayer v. Campbell, 9 Mo. 277; Riley’s Adm’r v. McCord’s Adm’r, 24 Mo. 266; Weary v. Wittmer, 77 Mo. App. 546; Estes v. Fry, 166 Mo. 70, 79.</p> <p>(1) Under this second defense defendant had the right to offer evidence of any valid agreement between herself and the payee of the note which would operate as a discharge of that part of the debt alleged to have been paid. McLaughlin v. Webster, 141 N. Y. 76; Carpenter v. Soule, 88 N. Y. 251. (2) Under the second ^defense pleaded, defendant offered evidence of an executed gift of $1,450, evidenced by receipt. Carpenter v. Soule, 88 N. Y. 251; 14 Am. and Eng. Ency. of Law (2 Ed.), 1009, 1031,1032; Bedell v. Carll, 33 N. Y. 581-584. (3) Plaintiff complains of the refusal, by the court, to give some of his declarations of law. The giving or refusal of declarations of law in an equity case is not a ground for reversal. Brandon v. Dawson, 63 Mo. App. 359; Freeman v. Wilkerson, 50 Mo. 554; Hunter v. Miller, 36 Mo. 144; Kostuba v. Miller, 137 Mo. 161.</p>

<p>JUSTICES’ COURTS: Statement: Appeal: Amendment. Under the present statute a plaintiff may, in the appellate court, amend the statement filed with the justice so as to cover a cause of action intended to be included in the original statement.</p>

— Hon. Chesley A. Mosman, Judge. It is a well-settled principle that the plaintiff cannot be permitted to introduce evidence for the purpose of establishing negligence which is not pleaded or set up in its petition. Conway v. Railroad, 24 Mo. App. 235; Breeden v. Mining Co., 103 Mo. App. 176; Hicks v. Railroad, 68 Mo. 329; Haines v. Pearson, 100 M'o. App. 551; Brooks v. Blackwell, 76 Mo. 309.

— Now. John P. Butler, Judge. (1) Under the undisputed facts of this case, it was the duty of the circuit court to either affirm the judgment of the justice, or dismiss the appeal, as defendant should elect. R. S. 1899, sec. 4076; Wolff v. Coffin, 46 Mo. App. 190; Hammel v. Weis, 54 Mo. App. 14. (1) At common law a plaintiff as of right, at any time in the progress of the case, even after verdict was rendered, might take a non-suit.

— How. George F. Longcm, Judge. (1) There is no pretension that the plaintiff had notice before the notes sued on were executed by D. A. Fults & Company of the agreement between Beedy and co-partners; as to the manner in which they should raise the necessary capital for the firm of D. A. Fults & Co. to engage in the mail business.

— No». Archelms M. Woodson, Judge. (1) Under all the testimony the court should have declared the law to be that there was no evidence that Hopper was the agent of defendant and the court should have directed a verdict for the defendant. (2) Even though Hopper was agent of defendant, yet from the whole case it is clear that he was acting to protect himself on account of his indorsement and not with the intention of serving his principal.

— Hon. Henry M. Ramey, Judge. (1) It was error to submit tbe case to the jury on proof of facts not pleaded, even though the facts proven would have constituted a good cause of action against the defendant. Ohitty v. Railway, 118 M'o. 61; Gas Light Go. v. Mercer, 18 Mo. App. 611; Matson v. Frazer, 18 Mo. App. 302; State ex rel v. Stillington, 51 Mo. App. 252; Yarnell v. Railway, 113 Mo. 570; Raming v. Metropolitan, 157 Mo. 477, 506; Neville v. St. Louis, 158 Mo. 293.

— Eon. Alonzo D. Burnes, Judge. (1) The verification of the information in this cause by William Carson had no meaning in law whatever. He made no complaint as contemplated by section 2749. State v. Sartin, 66 Mo. App. 626. It is therefore apparent that the verification of this information by William Carson added nothing to its validity.

— Eon. W. E. James, Judge. (1) The cause of action which plaintiff had by-reason of its being mortgagee in its own mortgage should have been pleaded in a separate count from that acquired by it by the assignment from Forsha. R. S. 1899, sec. 598; Mooney v. Kennett, 19 Mo. 551; Doan v. Holly, 25 Mo. 357; Dougherty v. Railway, 19 Mo. App. 419; Ency. PI. and Pr. 306, and cases cited.

— Hon. Joshua W. Alexander, Judge. (1) Plaintiff’s testimony, when impeached as it was by her own affidavit and the testimony of her own witnesses,… Held: that where it is understood between the insured and the agent of the company, that the former intends to secure additional insurance, a provision in the policy forbidding the insurance will be deemed waived. McCabe v. Ins. Co., 14 Hun 599; Ins. Co. v. McLemore, 7 Texas Civ. App. 317; Carpenter v. Ins. Co., 61 M'ich. 635.

— Ron. Alexander R. Waller, Judge. (1) The plaintiffs were not partners, neither were they such joint owners of the corn crop in question as entitled them to be joined as plaintiffs. Burks had no interest in and no authority to dispose of or in any manner control the part belonging to Williamson. (2) The water complained of in this case was rain water flowing from the hills. Abbot v. Railroad, 83 Mo. 271-280.

— Now. Alexander K. Waller, Judge. (1) The blood, confidential and fiduciary relations between the uncle, Jared Palmer, and his inexperienced young niece, Sallie Palmer, on February 26, 1881,… Held: 58 Mo. 213; Thomas v. Bridges, 73 Mo. 530; Bennett v. Shipley, 82 Mo. 448; Devore v. Devore, 138 Mo. 181; Simily v. Adams, 88 Mo. App. 621; Johnson v. Burks, 103 Mo. App. 221; Dickason v. Fisher, 137 M’o. 342-58; Sprague v. Cochran, 144 N. Y. 104.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) A mechanic’s lien suit before a justice is a special statutory proceeding, and jurisdiction over it cannot be acquired without a substantial showing of the facts which authorize the exercise of the jurisdiction. Heimberger v. Harrison, 83 Mo. App. 544; Ely v. Wren, 90 Pa. St. 144; Dean v. Wheeler, 2 Wis. 224.

— Hon. Edwin R. McKee, Judge. It is true there is a recital in the hill of exceptions that a motion for a new trial was filed, but this will not suffice, for it is now well settled that the filing of such a motion is a matter that must be shown by the record proper and cannot be evidenced by any recital in the bill of exceptions. Greenwood v. Parlin & Orendorff Co., 98 Mo. App. 407; Parry v. Gordon Coffee & Spice Co., 98 Mo. App. 409, and authorities cited.

Louis City Circuit Court. — Hon. Warwich Hough, Judge. The discretionary .power of the circuit court in granting and refusing new trials is subject to review by the appellate court. Hill y. Wilkins, 4 Mo1. 86; Blanchard v. Wolf, 6 Mo. App. 200; Richards y. Martin, 43 Mo. App. 597; Carr y. Dawes, 46 Mo.

— Hon. William N. Evans, Judge, The testimony discloses the fact that defendant’s agent informed plaintiff at the time of the offering of said message to him that in all probability he would not be able to transmit said message for the reason that the wires were in bad condition, and that if accepted at all would be subject to delay, and under those conditions said message was left with defendant’s agent for transmission from Elsinore, Missouri, to Piggot, Arkansas, which…

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

Louis City Circuit Court. — Hon. Warwick Hough■, Judge. (1) Instruction No. 2 given for the plaintiff leaves the construction of the written contract to the jury, and is indefinite and misleading, in that it directs the jury to deduct from the “aggregate contract price” of plaintiff’s services the sums which he might still earn previous to June 15, 1905.

Louis City Circuit Court. — Eon. Horatio D. Wood, Judge. Exhibits “A” and “B” do not make a contract, and consequently the objection to the introduction of any testimony made at the outset of the case, on the ground that there was no contract, should have been sustained. Exhibits “A” and “B” differ in a number of material particulars.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. Plaintiff contends that he entered into a parol contract with defendant for one year, renewing the terms of the old contract. Boggs v. Pacific Steam Laundry Co., 86 Mo. App. 616. (1) The plaintiff declared upon an express contract of hiring for one year, hut totally failed to prove any contract. Hayes v. Bunch, 91 Mo. App. 467; Lewis v. Slack, 27 Mo. App. 119; Feurt v. Ambrose, 34 Mo. App. 360; Boogher v. Ins. Co., 8 Mo.

— Hon. Henry G. Pepper, Judge. Where a contract has been fully executed according to its terms, and nothing remains to be done but the payment of the price, one may sue on the contract or in indebitatus assumpsit, and rely on the common count. Henderson & Jones v. Mace, 64 Mo. App. 397; Mansur v. Botts, 80 M'o. 651. In Plummer v. Frost, 81 Mo. 425, it was said a party may sue on a quantum meruit and a disclosure at the trial of a specific contract will not defeat the action.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. The evidence of plaintiff showed that no proper tender was made to defendant of the money received by her as consideration for the release. Before suing on a rescinded, fraudulent contract a tender of the consideration must be made to the party from whom it was received. Alexander v. Railroad, 54 MO'. App. 70; Winter v. Railroad, 160 Mo. 189; Retzer v. Packing Co., 58 Mo. App. 270; Smith v. Kander, 85 Mo.

Louis City Circuit Court. — Eon. Walter B. Douglas, Judge. The circuit court had the power to set aside the judgment and grant the defendant a new trial. Circuit courts being of general jurisdiction have, according to the common law, control of their judgments during the term at which they are rendered. Hulbert v. Treadway, 159 Mo. 668; Wells v. Andrews, 133 Mo. 663; Scott v.' Smith, 133 Mo. 618; Orvis v. Elliot, 65 Mo. App. 96; Oabanne v. MacAdaras, 91 Mo. App. 70.

Louis City Circuit Court. — Hon. O'Neill Ryan, Judge. (1) The- instruction offered by appellant at the close of plaintiff’s case should have been given. Proving the injury alleged to be the consequence of a negligent act does not prove the negligence charged to have been the cause of it. The burden is on the party alleging negligence to prove it as alleged.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. (1) Restrictions on the use of ground imposed pursuant to a general plan or scheme of improvement, are to be fairly and reasonably interpreted so as to accomplish their apparent purpose. 1 Jones on Real Property, sec. 735; Washburne’s Easements and Servitudes (4 Ed.), p. 116,117; Jeffries v. Jeffries, 117 Mass. 184-189; Tallmadge v. Bank, 26 N. Y. 105; Gilbert v. Peteler, 38 Barb. 488-514.

— Hon. William A. Davidson, Judge. (1) The cross-bill sets up but one ground of divorce, the ground of vagrancy of plaintiff, and the charge is pleaded in such general terms as to amount to no statement of a cause of action. Bowers v. Bowers, 19 Mo. 351; Dwyer v. Dwyer, 26 M'o. App. 647. (2) The Legislature when it created by statute indignities as a ground of divorce, did not define what acts constituted such a ground. It left the subject at large.

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

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) The court erred in refusing to sustain defendant’s demurrer at the close of all the evidence, because the plaintiff failed to prove the specific charge of negligence alleged in his petition. When the plaintiff in his petition limits his right to a recovery to a specific charge of negligence it must be proven, and when there is a failure of proof no verdict can stand in his favor.

Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge. Respondent knew that there was a minor heir at the time he took the agency for the sale of the property in question, and if he did not communicate that fact to the alleged purchaser he has no one to blame but himself. Folsom y. Lewis, 14 Mise. 605. Respondent did' not secure a purchaser who was ready, able and willing to purchase appellant’s property. Gerhardt y. Peck, 42 Mo. App. 651; Hayden y. Grillo, 26 Mo.

Louis City Circuit Court. — Hon. Wartoich Hough, Judge. Defendant was placed by plaintiff upon the witness stand and minutely questioned as to transactions between deceased and himself and was wrongfully, by the court, refused permission* to explain same or tell his story, and for this clearly the cause should be reversed and remanded.

<p>BENEVOLENT SOCIETIES: Jurisdiction: Intervention. The statutes relating to the incorporating of henevolent societies contemplate an eco varis proceeding to procure a pro forma decree. An association cannot intervene and become a party to such proceeding so as to oppose the incorporation of another body.</p>

Louis City Circuit Court. — Eon. O’Neill Ryan, Judge. The trial court erred in refusing instruction No. 2. Where a carrier undertakes to transport live stock it is bound to furnish good and sufficient cars and if it does not and animals escape by reason of defects in its cars beyond the terminus of its road it will be liable for the loss even though there be a special contract undertaking to exempt it from loss beyond the end of its line. Potts v. Railway, 17 Mo.

Louis City Circuit Court. — Hon. James B. Kinealy, Judge. The service of ordinary process is had whenever the constable executes the writ issued by the justice of the peace by leaving a copy of the summons at the usual place of abode of the defendant, with some person of the family above the age of fifteen years. R. S. 1899, sec. 3862. Actions before a justice are not deemed to have been instituted until the process is delivered to the constable for service.

Louis City Circuit Court. — Son. Moses N. Sale, Judge. The notes and deed of trust in controversy were dated October 19,1887. The principal note matured October 19, 1888. An action on the note itself was not barred by limitation until October 19, 1898.

Louis City Circuit Court. — Eon. Wariwelc Hough, Judge. Plaintiff sues on an express promise to repay, bnt the judgment is on quantum meruit, a different theory altogether, which is not permissible. Hess v. Corwin, 109 Mo. App. 24. There -was no consideration for appellant’s alleged promise, claimed to have been made long after contract of tenancy, to refund the $15.

<p>WEIGHT OF EVIDENCE: Physical Facts. In an action against the St. Louis Railway Co. for injuries received by plaintiff while a passenger, in being thrown from the platform by the rapid speed of the car in going round a curve, where the evidence showed that the plaintiff was found lying six feet from the track this would not demonstrate a physical impossibility for the plaintiff to be thrown that distance so as to justify nonsuit, but is a question of fact for the jury to weigh as to whether she was thus thrown or stepped off while the car was in motion.</p>

Louis City Circuit Court. — Hon. Warwick Hough, Judge. Where the property is in the possession of a lessee, the lessee only and not the owner can maintain an action of forcible entry and detainer. Armstrong y. Hendrick, 67 Mo. 543; McCartney’s Admr. v. Alderson, 49 Mo. 457; Burns v. Patrick, 27 Mo. 434; Collier v. Green, 83 Mo. App. 166. Actual possession by plaintiff, at the time of the forcible entry and detainer is indispensable to recovery.

Louis City Circuit Court. — Hon. Matthew G. Reynolds, Judge. Plaintiffs contracted with Lurie as selling agent, and therefore knew the limits of his authority. A selling agent has no implied authority to bind his principal for advertising. Tarpey v. Bernheimer, 16 N. Y. Supp. 870.

— Hon. James L. Fort, Judge. (1) The obligation of the master towards its servants required it to furnish suitable tools and appliances and a reasonably safe place for the doing of the work demanded of its servants. Herdler v. Buck’s Stove and Range Co., 136 Mo. 3; Doyle v. Missouri, Kansas & Texas Trust Co., 140 Mo. 1; Rogers v. Meyerson Printing Co., 103 M'o. App. 683; Reichla v. G-ruensfelder, 52 Mo. App. 43; Turner v. Haar, 114 Mo. 335.

Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge. The court on the argument of the case gave a verbal instruction to the jury construing a written instruction he had already given and which written instruction he construed erroneously and which verbal instruction contained an erroneous statement of law and also of fact. Diel v. Stegner, 56 Mo. App. 539, and cases cited.

Louis City Circuit Court. — Son. Moses N. Sale, Judge. The appellant was not obliged to pay or tender before his vendor was in a position to convey a good title. Pursley v. Good, 94 Mo. App. 382, 68 S. W. 218; Devore y. Devore, 138 Mb. 187, 39 S. W. 68; McLeod v. Snyder, 110 Mo. 302, 19 S. W. 494; Thompson v. Dickerson, 68 Mo. App. 541; Washington v. Ogden, 1 Black (U. S.) 450; Thompson v. Craig, 64 Mo. 317; Swan v. Drury, 22 Pick.

Apeal from St. Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. (1) The justice of the peace and the circuit court on appeal had no jurisdiction over the subject-matter of this cause, (a) The suit is “founded” on a written instrument, a policy of insurance, and it is required by law to be filed or proof given that it is “lost or destroyed.” R. S. 1899, secs. 3852-3855; Western Ass’n Co. v. McCarty, 48 N. E. 265; Wilkinson v. Ins. Co., 63 Mo. App. 407; Ins.

Louis City Circuit Court. — Son. Matthew. G. Reynolds, Judge. Respondent’s arrest and imprisonment were lawful, and it can make no difference at whose instigation they were made, or what the motive was. Sec. 2159, R. S. 1899; sec. 1459, chap. 18, article 2, of the Municipal Code of the city of St. Louis; Taaffe v. Slevin, 11 Mo. App. 507 ;• Bierwith v. Pieronnet, 65 Mo. App. 431. .

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (2) It was error for the court to give the instruction which it gave on behalf of respondent unless such instruction would have been proper if the trial had been before a jury. Vincent v. Means, 184 Mo. 327, 82 S. W. 96; Butler Co. v. Bank, 143 Mo: 13, 44 S. W. 1047. (2) In considering a demurrer to the evidence every fact and reasonable inference Avhich the proofs justify must be taken as absolutely true.

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

Louis City Circuit Court. — Eon. O’Neil . Ryan, Judge. (1) There being substantial evidence to support a judgment, the weight of the evidence cannot be reviewed on appeal. Everman v. Eggers, 106 Mo. App. 732, 80 S. W. 592; Crouch v. Colbert, 111 Mo. App. 93, 84 S. W. 992.

Louis City Circuit Court. — No». John A. Blevins, Judge. The circuit court erred in sustaining plaintiff’s motion to strike out parts of defendant’s answer.

Louis City Circuit Court. — Eon. John A. Blevins, Judge. No objection having been made to the testimony that the machines were not only to be like the machines in the plaintiff’s factory, but also like the cut shown the defendant, and no affidavit of surprise having been filed, it was not error to instruct the jury that they must believe that the machines were to be like the old ones and the cut shown. The instruction was based upon evidence not objected to.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. An agent who acts for both parties to a contract in bringing it about cannot recover any compensation from either unless both consent to his double agency. A fortiori where the double agency is known to one principal and unknown to the other, the agent cannot recover from that principal who has no knowledge of and does not consent to the dual relation. Chapman v. Curie, 51 Mo.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) The court erred in overruling defendant’s demurrer to plaintiff’s evidence as to Rachel Kauffman, the wife, (a) Her demurrer at the close of plaintiff’s evidence was not wholly waived by her failure to renew the demurrer at the close of the entire case, but will be considered by the appellate court in view of all the evidence in the case.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. The court erred in overruling defendant’s motion to suppress the deposition of T. S. Emery, and in permitting said deposition to be introduced in evidence over defendant’s objection thereto. R. S. 1899, secs. 2899-2900; R. S. 1899, sec. 4151; R. S. 1899, sec. 8885; Meyers v. Russell, 52 Mo. 26; Clark v. Rynex, 53 Mo. 360; Berders v. Barber, 81 Mo. 636; Hubbard v. Railway, 87 S. W. 52, 112 Mo. App.. 459; 21 Am. and Eng.

Original Proceeding for Writ of Mandamus. Statement. — This is an original proceeding instituted by the Wabash Railroad Company to obtain a writ of mandamus directed to the Hon. O’Neill Ryan, Judge of the circuit court of the city of St. Louis, commanding him to file and allow a bill of exceptions in a case wherein the Diamond Match Company is plaintiff and said railroad company defendant.

Louis City Circuit Court. — Eon. Dmiel D. Fisher, Judge. (1) No actionable negligence on the part of defendant was shown, (a) Defendant owed to plaintiff no duty which it failed to perform toward him. Atherton v. ' Coal & Coke Co., 106 Mo. App. 591, 81 S. W. 223; Barry v. Cemetery Ass’n, 106 Mo. App. 358, 362, 80 S. W. 709; Glaser v. Rothschild, 106 Mo. App. 418, 424, 80 S. W. 332; Pueschell v. Kansas City Wire & Iron Works, 79 Mo.

— Hon. David H. Fby> Judge. Respondent maintains that in a divorce proceeding the awarding of temporary alimony and attorney’s fees and suit money to the wife, pending the trial, is a matter from necessity and by common law and statute to be left to the sound discretion of the trial court, and in the absence of apparent and gross abuse of that discretion that court’s judgment will not be disturbed.

<p>1. CONTRIBUTORY NEGLIGENCE: Boarding Moving Car. Whether getting on a moving car is a negligent act depends on circumstances such as the speed of the car, the age and strength of the party, whether he be incumbered with burdens and any other relevant fact; if the car is moving very slowly it is a question for the jury whether the act is negligent.</p> <p>2. PERSONAL INJURIES: Contributory Negligence: Instructions. In an action for injuries received by plaintiff while attempting to board one of the defendant’s cars on account of the car starting suddenly before the plaintiff had time to board it, where the defense was contributory negligence in boarding a moving car, the instructions are set out at length and held to be sufficiently favorable to the defendant.</p> <p>3. CONTRBUTORY NEGLIGENCE: Physical Facts: Conflicting Evidence. In an action for injuries received by the plaintiff while attempting to board defendant’s car, it will not be held that the physical facts show the accident could not have occurred in way plaintiff claimed, where there was testimony from which it could be inferred the accident occurred in a manner consistent with plaintiff’s right to recover without contradicting physical facts.</p> <p>4. -; -. Where the testimony in such a case shows beyond dispute any fact which rendered it impossible according to the law of nature for the accident to have occurred from the defendant’s negligence, or unless plaintiff himself was to blame, the judgment for plaintiff should be reversed.</p>

Louis City Circuit Court. — Son. O’Neill Ryan, Judge. The plaintiff’s testimony showed that lie bad knowledge of tbe defective piling complained of and that it was one of tbe risks arising during tbe course of bis employment, and assumed by bim. There was no evidence of fraud in obtaining tbe release pleaded as a bar to tbe action, and there was no evidence of a return or even a tender to tbe appellant of tbe money obtained in consideration of its execution.

Louis City Circuit Court. — Son. O’Neill Ryan, Judge. The award of alimony or maintenance to an unsuccessful wife on a final decree can not be done. This is error on the face of the record proper, and is reviewable without a bill of exceptions or motion for new trial or in arrest. De Hoog v. De Hoog, 65 Mo. App. 246; M’cIntire v. Mclntire, 80 Mo. 470; Mclntire v. Mclntire, 24 Mo. App. 166; Motley v. Motley, 93 Mo. App. 473, 67 S. W. 741.

— Eon. Joshua Alexander, Judge. (1) There was a failure of proof in this case as the material averments of the petition were wholly unsupported hy any evidence in the case. Nor can the plaintiff state one cause of action and recover upon another. R. S. 1899, sec. 798; Waldhier v. Railway, 71 Mo. 514; Earning v. Railway, 157 Mo. 477. (2) There is no evidence that the plaintiff ever incurred any liability on account of either medical services or hospital bills.

— Hon. William B. Teasdale, Judge. (1) A factor selling cattle, against which an agister’s lien is claimed, cannot be held liable'in a suit by the claimant unless the factor had knowledge or notice of the existence of the lien. Tonney v. Goodley, 57 Mo. App. 235; R. S. 1899, sec. 4228; Carriage Co. v. Reid, 99 M'o. App. 415; Armstrong v. Walker, 9 Lea (Tenn.), 156; Finney v. Harding, 136 Ills. 573; Haue v. Clark, 23 Ills. App. 145; Smith y. Shell Lake Lbr.

— Hon J cuines E. Hazelly Judge. (1) The petition charges that, “by the force of the collision of said car with his said wagon, plaintiff was thrown several feet in the air, and fell with great.force and violence,” etc. The proof was that he had reasonable cause to apprehend a collision and that the danger thereof was, and that he believed it was, imminent and impending, and to save himself he jumped and was injured.

— Hon. Hat M. Shelton, Judge. (1) The allegation is that the defendant “knew or ought to have known” of the defect, but we ask the question when it ought to have known of such defect? Was it the day before or the minute before the accident?

— No». Ghesley A. Mosman, Judge. In making out special taxbills, one may rely upon the statutory declaration, that the record owner is to be regarded as the real owner, unless he has notice to the contrary.

— Hon. John P. Butler, Judge. (1) The learned judge below tried the case at bar upon the theory that defendant was liable as a warehouseman. This was an error. Upon the undisputed facts here shown, the defendant was a depositary or gratuitous bailee, a lower degree of bailment, and one of far less responsibility. Cohen v. Railway, 59 Mo. App. 68; Plow Co. v. Railway, 61 Mo.

<p>1. MASTER AND SERVANT: Working Place: Passage. The fact that a servant, an oiler in a packing house, had, in turning on and off lights, to step, from joist to joist, is held negligence on the master’s part.</p> <p>2. -: ->: -: Contributory Negligence. It is the master’s duty to exercise care commensurate with the nature of the business so as to protect the servant from the hazards incident thereto; and the servant’s continuing in the employ after mere knowledge of the defect is not contributory negligence, unless the danger be glaring.</p> <p>3. --: -: -: Instruction. An instruction though awkwardly drawn is held to cover the law of the case.</p> <p>4. -: -: Pleading: Negligence. The petition is held to state a cause of action under the law of negligence between master and servant as administered in this State.</p> <p>5. DAMAGES: Personal Injury: Future Pain: Instruction: Negligence. It is the rule,, following Reynolds y. Transit Company, 189 Mo. 408, that the use of the word “may,” in an instruction relating to future suffering, is not error.</p>

— Ho». Paris G. Stepp, Judge. (1) The plaintiff’s proof should have been confined to the reasonable market value of the cattle at the time and place of the injury and the court erred in overruling defendant’s objection to the question as to- value asked plaintiff. The court conceded the correctness of the objection, but nevertheless overruled it. Commission Co. v. Railway, 64 Mo. App. 590; Schrodt v. St. Joseph, 109 Mo. App. 631; Sinclair v. Railway, 70 Mo.

— Hon. William C. Ellison, Judge. (1) Defendant’s objection to tbe introduction of any evidence under tbe pleadings should have been sustained. Plaintiff cannot maintain this suit without first returning to defendant the nine dollars or at least offering to return it. Oahn v. Reid, 18 Mo. App. 115; Alexander v. Railroad, 54 Mo. App. 66; Retzer v. Packing Co., 58 Mo. App. 264; Banking Co. v. Ins. Co., 75 Mo.

— Hon. Shannon 0. Douglass, Judge. Submitted an argument. (1) By failure to object to tbe testimony when it was offered, and by cross-examination in relation to tbe same matter, appellant must be held to have waived its-objections thereto. To permit objection in instructions for the first time would be intolerable practice. Maxwell v. Railway, 85 Mo. 95; Mfg. Co. v. Clay, 53 Mo.

— No». Nat. M. Shelton, Judge. (1) The bank is not entitled to either have or maintain this action, and therefore conld not assign any right of action arising out of this transaction to the plaintiff. This point is properly raised by this record. For this reason the court below should have directed a verdict in favor of the defendant. R. S. 1899, sec. 1291; Commission Co. v. Railway, 64 Mo. App. 590; Ullman v. Pair Ass ’n, 167 Mo. 273.

— Son. Ghesley A. Mosman, Judge. (1) After default, the mortgagor of personal property has no legal interest in the property. The mortgagee has the absolute title to the property, subject only to the mortgagor’s equitable right to redeem it. Jackson v. Cunningham, 28 Mo. App. 354; White v. Quinlan, 30 Mo. App. 54; Lacey v. Wathen, 36 Mo. 320.

— Hon. Joshua W. Alexander} Judge. (1) Defendant had the right to pursue and use all force reasonably necessary for the recapture of her property. State v. Dooley, 121 Mo. 591; State v.' Evans, 124 Mo. 397; State v. Forsythe, 89 Mo-. 667. {2) The second count of petition does not state- any cause of action in the absence of an allegation of a personal assault or. injury. Medford v. Levy, 31 W. Y. 648, 13 Am.

<p>1. FORMER APPEAL: Trial Practice: Verdict: Amended Answer. Where, on appeal, there is a reversal with directions to enter judgment on the verdict, the defendant cannot amend his answer so as to avoid the verdict and prevent a judgment thereon. In such cases amendments may support a verdict but not destroy it.</p> <p>2. -: -: Appeal: Damages. Where the only record on a second appeal is that of the former one, all the matters are res adjudicate,; however, the appeal cannot be dismissed, but the judgment should be affirmed; and where there is good faith in taking the appeal, the appellate court will not impose the penalty.</p>

— Eon. Samuel Dams, Judge. (1) The order made by his honor, Judge Martin, requesting Judge Davis to try this case was an absolute nullity. Rawlins v. Timons, 80 Mo. App. 84; Bank v. Graham, 147 Mo. 253; Ladd v. Forsee, 163 M'o. 506; State v. Shea, 95 Mo. 89; State ex rel. v. Flournoy, 160 Mo. 324.

— Eon. Samuel Davis, Judge. (1) The court erred in refusing defendant’s demurrer to plaintiff’s evidence, and again in refusing a demurrer to all the evidence, under the circumstances, it was not negligence to mate the switch as it was made. Coleman v. Land and Lumber Co., 105 Mo.

— Hon. William L. Jarrott, Judge. (1) Assessment of damages on dissolution of temporary injunction must be made at tbe term of court at which the injunction is dissolved. Hoffman v. Franke, 96 Mo. 533; Sochner v. Hill, 19 Mo. App. 141; Moore v. Mexico, 58 Mo. App. 469; Teans v. Riley, 147 Mo. 453. A. B. Sargent had no notice of the motion and was not in court. (2) The judgment being in favor of H. A. Jones and A. A. Whitsitt, is void.

— Son. Joseph D. Perkins, Judge. (1) Where the later of two legislative enactments covers the whole subject-matter of the earlier one, although not purporting to amend it, but plainly showing that the later was intended to be a substitute for the earlier act, such later act will operate as a repeal of the earlier one, though the two are not repugnant. Crumley v. Railway, 32 M'o>. App. 505; Berkshire v. Railway, 28 Mo.

Jasper Circuit Court. — Eon. Howard Gray, Judge. (1) The contract pleaded, between W. B. Smith and Orlando Williams and Eclipse Land and Mining Company, by which Smith and Williams were granted the privilege of mining on the land of the Eclipse Land and Mining Company, and were to be paid by the Eclipse company, eight per cent of the gross value of ores mined, as consideration for their work, was a mere license— created no interest in the realty — and was therefore not…

— Eon. Eoward Gray, Judge. (1) The judgment should be reversed because the action of the court in overruling defendant’s application for a continuance was unreasonable, and not the exercise of sound discretion. Judah v. Hogan, 67 Mo. 252.

<p>1. BILLS AND NOTES: Interest: Beginning to Run. If a note is silent as to when interest begins to run, it will not commence until maturity; but if it discloses an intention to begin with the date, it will so do. Various construed stipulations mentioned.</p> <p>•2. -: -: -: Legal Interest. Where the stipulation does not fairly and reasonably disclose that interest is to be drawn from date and such stipulation can be applied to the period after maturity and without it the same rate would not be given by law, then the note should be construed as drawing interest from maturity. Missouri cases considered.</p> <p>3. -: -: -: Contract. Though a contract to pay at a certain time with interest means to pay when due with accrued interest, yet where the contract is to pay the sum “with interest at eight per cent per annum,” no time is prescribed for interest to begin and it will only run from default.</p> <p>4. -: -: -: Instruction: Pleading: Evidence. An instruction in relation to the time when interest begins to run, following neither the pleading nor the evidence, is condemned.</p>

— Hon. Louis Hoffman, Judge. (1) The action of the trial court in setting aside an order of continuance and in refusing further continuances is reviewable. McLane v. Harris, 1 Mo. 701; Darne v. Broadwater, 9 Mo. 19; Tunstall v. Hamilton, 8 Mo. 500; Rotman Distl. Co. v. VanFrank, 88 Mo. App. 50; Alt. v. Grosclose, 61 Mo. App. 409; Campbell v. Mc-Caskill, 88 Mo. App. 44. (2) The trial court should not set aside order continuing a cause except for urgent reasons.

— Hon. John G. Park, Judge. (1) Where an ordinance recites that the sidewalk shall not be less than five feet . . . and the proof shows that it was laid exactly five feet, there is no delegation of authority, nor is the ordinance indefinite and uncertain. Shehan v. Gleeson, 46 Mo. 100; Railway v. Jacksonville, 114 111. 562.

— Hon. JoJm A. Sea, Special Judge. There is no question but that plaintiff was intentionally injured. There should be no recovery for that reason alone. Ins. Co. v. McConkey, 127 U. S. 667; Phelan v. Ins. Co., 38 Mo. App. 640; Hutchcraft v. Ins. Co., 18 S. W. (Ky.), 570; De Graw v. Accident Society, 4 New York Sup. 912; Ben. Soc. v. Dudley, 61 N. E. 207; Butero v. Ins. Co., 71 N. W. 811; Fisher v. Ins. Co., 19 Pac. 425; Ins. Co. v. McCarty, 25 Pac. 713; Orr v. Ins.

— Hon. James H. Slover, Judge. Under all of tbe evidence the plaintiff was not entitled to recover and the peremptory instruction asked by the defendant at the close of the evidence should have been given. (1) If plaintiff knew that on other days holes had been in the pans, and if he knew the pans were liable to be broken in the natural operation of the conveyor, such knowledge does not bar his recovery. Mere knowledge of a defect is insufficient.

<p>Appeal from Gentry Circuit Court. — Hon. William G. Ellison, Judge.</p> <p>(1) Upon tbe undisputed facts tbe demurrer to tbe evidence should have been sustained. Gurley v. Railway, 93 Mo. 450 ¿Witting v. Railway, 101 M.o. 640; Gashweilers v. Railway, 83 Mo. 119; Helm v. Railway, 98 Mo. App. 419; Railroad v. Cleary, 77 Mo. 637; Kellerman v. Railway, 136 Mo. 188-9; Farber v. Railway, 116 Mo. 94; Walker-v. Railway, 121 M'o. 584; Raining v. Railway, 157 Mo. 509. (2) For the same reason the learned judge below should have directed a judgment in defendant’s favor at the close of the case. See authorities supra. (3) The instructions given at the plaintiff’s request, and by the court of its own motion, were erroneous. Galbreath v. Games, 91 M'o. App. 512; Haworth v. Railway, 94 Mo. App. 215. (4) The instructions asked by the defendant and refused, should have been given. (5) The instructions given for the plaintiff and those given for the defendant are in hopeless conflict. Who can tell which guide the jury followed?</p> <p>(1) The contract of shipment offered in evidence, not being based upon a special or reduced rate, but the rate therein named being the only rate in force at the time, and being the highest legal rate, all of the clauses and stipulations contained therein attempting to exempt the defendant from its common-law liability are void. Bowring v. Railroad, 90 Mo. App. 324; Paddock v. Railroad, 60 Mo. App. 328; Rice v. Railroad, 106 Mo. App. 371; Keyes-Marshall Go. v. Railroad, 87 S. W. 553; Summers v. Railroad, 79 S. W. 481; Paddock v. Railroad, 155 Mo. 524. And this court will take judicial notice of the fact that the rate charged was the highest legal rate. Wynn v. Railroad, 86 S. W. 562; 5 Am. and Eng. Enc. Law (2 Ed.), 299; Railroad v. Reynolds, 17 Kan. 209; Paddock v. Railroad, 60 Mo. App. 328; Phoenix Powd Go. v. Railroad, 101 M'o. App. 442; Duvenick v. Railroad, 57 Mo. App. 550. (2) The seventy-five head of sheep involved in this appeal were delivered to the defendant and put into its stock pens, and accepted by it for shipment on February 29,1904; the written contract of shipment entered into on March 2, the third day after this defendant’s liability, as a carrier had attached did not waive any claim which the plaintiff then had against the defendant for its flagrant violation of its duty to ship his fat sheep to market with diligence and dispatch and without unreasonable delay. McCullough v. Railroad, 34 Mo. App. 23; Harrison v. Railroad, 74 Mo. 373; Perkins v. Railroad, 17 Mich. 296; Gann v. Railroad, 72 Mo. App. 34; Miller v. Railroad, 62 Mo. App. 252. The case of Helm v. Railroad, 98 Mb. App. 419, relied upon by defendant has no application to the facts of the case at bar. (3) The reception by the defendant of the sheep in the pens of the company was equivalent to an agreement on its part to transport the same with diligence and without unreasonable delay. And if it failed to do so it is liable to plaintiff for the damages resulting from such failure. Gwinn v. Railroad, 20 Mo. App. 453; Pruitt v. Railroad, 62 Mo. 527; Mason v. Railroad, 25 Mo: App. 479; Lackland v. Railroad, 101 Mo. App. 420; Hutchinson on Carriers (2 Ed.), sec. 89. (4) The defendant’s liability as a carrier attached as soon as the sheep were delivered to and accepted by it in its stock pens: This has been repeatedly decided in this court. Mason v. Railroad, 25 Mo. App. 478; McCullough v. Railroad, 34 Mo. App. 23; Paddock v. Railroad, 60 Mo. App. 339; Kincaid v. Railroad, 62 Mo. App. 365; Cook v. Railroad, 57 Mo. App. 471; Bradford v. Railroad, 64 Mo. App. 475; Tracy v. Railroad, 80 Mo. App. 389; Lackland v. Railroaded Mo. App. 420; Hutchinson on Carriers (2 Ed.), sec. 89. .</p>

— Eon William 0. Ellison, Judge. (1) The general principles of the law of contracts of sale of real estate while the contract is still executory, recognize and enforce the right of a purchaser to a title clear of defects and incumbrances; “but. when the contract has been consummated by the execution and delivery of a deed, the terms of the deed fill the measure of the rights of the parties and the contract merges in the deed.” Wheeler v. Ball, 26 Mo.

<p>1. DAMAGES: Personal Injury: Measure: Future Suffering. Damages are allowed for future pain and loss that are reasonably certain to follow the injury, while those that depend upon contingent, speculative or merely probable results are excluded.</p> <p>2. -: -: -: -: “May:’' Instruction. In Reynolds v. Transit Company, 189 Mo. 408, the Supreme Court held that the word “may” in an instruction relating to future pain should be construed as defining the proper rule, which case is followed notwithstanding its variance with views expressed in Ballard v.. Kansas City, 110 Mo. App. 395, and other cases.</p> <p>3. -: -: Excessive Verdict: Appellate Practice. On a review of the evidence it is held that a verdict for $1,000 in a personal injury case, though apparently large, will not warrant the interference of the appellate court, since there is room for an honest and intelligent difierenee of opinion.</p>

— Hon. Joshua W, Alexander} Judge. (1) The evidence in regard to the reputation of the defendant for chastity, when she had not put her reputation in issue, should not have been admitted, for it is a rule firmly and universally established in sound policy and tradition that the prosecution cannot initially attack the defendant’s character. State v. Douglas, 7 la. 411; State v. Hull, 18 B. I. 207, 26 Atl. 191; State v. Berry, 24 Mo.

Louis Court of Criminal Correction.— Hon. Hiram JSf. Moore, Judge. The information charges that defendant as manager of G. Eyermann, Jr., & Brother was guilty of the offense. The proof shows that he was not manager at all, hut a partner of the firm which owns the plant. He was tried on one theory and convicted on another. There is no proof from which willfulness on the part of the defendant can he inferred.

Louis City Circuit Court. — Son. O’Neill Ryan, Judge. Even though the plaintiff was guilty of negligence in crossing defendant’s track, yet if the motorman saw, or by the exercise of reasonable care, might have seen, the dangerous position in which plaintiff had placed himself, in time to have prevented the injury, and failed to do so, defendant was negligent and plaintiff is entitled to a verdict.

<p>1. REPLEVIN: Weight of Evidence. In an action of replevin, where plaintiff claimed under a chattel mortgage and the issues were whether a prior hill of sale given by the defendant was valid and whether the defendant received the proceeds of the loan secured by the mortgage, the evidence is examined and held sufficient to sustain a' verdict for the plaintiff.</p> <p>2. -: Chattel Mortgage: Appellate Practice. In such an action, brought before the note secured by the mortgage was due, where the mortgage was not incorporated in the bill of exceptions, the appellate court cannot pass on the question as to whether the action was prematurely begun under the terms of the mortgage.</p>

— Eon. E. R. McKee, Judge. Defendant’s instruction in the nature of a demurrer to the evidence should have been given. The action is clearly one at common law. Only acts of omission are charged in the complaint.

<p>APPELLATE PRACTICE: Excluded Testimony. Where an exception is saved to the exclusion of testimony by the trial court, unless the record shows what the excluded testimony was, or was expected to be, the ruling of the trial court in holding it improper cannot be reviewed on appeal.</p>

Louis City Circuit Court. — Now. O’Neill Ry (1) Tbe right to transfer his shares is incident to every shareholder, and the correlative obligation of the corporation is to register such transfer. 2 Thompson on Private Corps., sec. 2301; Helliwell on Stock and Stockholders, secs. 179,180,186; 2 Cook on Corps., secs. 385, 388.

— Hon. Damd H. Eby, Judge. The letter of September 24, 1904, from appellant to respondent, did not form tbe basis for this suit. It was merely a “quotation of prices.” Tbe beginning of tbe attempted contract is tbe telegram dated September 26, 1904, from Buckberg to tbe company. Tbe terms of tbe telegram were never accepted and there was no “meeting of minds” upon a completed contract.

— Hon. H. W. Johnson_, Judge. The complaint was insufficient and should have been quashed. It fails to inform defendant of the accusation against him and is not sufficient to bar another action. ' St. Louis v. Babcock, 156 Mo. 148; St. Joe v. Harris, 59 Mo. App. 122; Memphis v. O’Connor, 53 Mo. 468; Salisbury v. Patterson, 24 Mo. App. 169; Lamar v. Hewett, 60 Mo. App. 314; St. Louis v. Dorr, 136 Mo. 370; Tarkio v. Loyd, 109 Mo. App. 171; Marshall v. Standard, 24 Mo.

— Hon. David H. Hby, Judge. The special Statutes of Limitations must be pleaded. Wigens v. Lovering, 9 Mo. 262; Stiles v. Smith, 55 Mo. 363. And if he fails to avail himself of it, either by demurrer or answer, he will be held to have waived it. Boyce v. Christy, 47 Mo. 70. A claim allowed by the probate court, unappealed from, is conclusive and not subject to attack. Jamison v. Wickham, 67 Mo. 575. It possesses all the elements of a final and conclusive judgment.

— Hon. W. N. Evans, Judge. The Statute of Limitations does not begin to run against an estate until the appointment of an administrator.’ It will not be set in operation until some one is capacitated to use. McDonald, Admr., v. Walton, 1 Mo. 726; Reilly v. Chouquette, 18 Mo. 220; State to use v. Heman, 7 Mo. App. 420, 70 Mo. 441. The widow being a trustee for the heirs, no lapse of time would be a bar to them. Dillon’s Admr. v. Bates, Trustee, 39 Mo. 292.