Volume 116 — Missouri Appeal Reports

Charles Circuit Court. — Hon. J. D. Barnett, Judge. Defendant’s peremptory instructions that plaintiff was not entitled to recover should have been given by the court. There was no evidence that the machine in question was dangerous or unusual or that it could have been guarded any further or greater than it was and still be satisfactorily operated.

St. Louis' County Circuit Court. — Eon. John W. McElhinney, Judge. That which the Legislature constitutionally authorizes, as the building of a street railroad in a public street, cannot be a nuisance per se.

— Now. Paris O. Stepp, Judge. (1) Appellant contends that the election to have been valid must have been held within ten days of the last insertion of the four consecutive week’s notice. That the time for holding the election is mandatory. McCrary on Elections (2 Ed.), 125; White v. Ruark, 34 Mo. App. 325; State v. Samuel Webb, 49 Mo. App. 407; 4 S. W. 494; Bean v. Barton Co., 33 Mo. App. 635.

— Horn,. James H. Blover, Judge. (1) The court erred in admitting incompetent evidence, that of Dr. J. R. Snell, who was permitted to invade the province of the jury and decide for them the ultimate fact in controversy. Taylor v. Railroad, 185 Mo. 255. (2) The court erred in refusing the demurrer interposed at the conclusion of plaintiff’s case, and in its failure and refusal to charge, at the conclusion of the whole case, that plaintiff could not recover.

— Hon. Alex. H. Waller, Judge. (1) Each count must be complete in and of itself, and each must notify the defendant of the crime with which he is charged. State y. Wagner, 113 Mo. 596; Keech y. State, 15 Fla. 591; State y. Longley, 10 Ind. 482; Watson v. People, 134 111. 374; State y. Phelps, 65 N. C. 450; 1 Chitty’s Crim. Law, 249; Wharton’s Crim. PI. & Prac., sec. 299.

— Hon William H. Martin, Judge. (1) Defendant was not negligent. (2) He had the right to pile the materials for the pavement in the street and to use a part thereof for a reasonable time for that purpose. Hesselbach v. St. Louis, 179 Mo. 522; Gerdes v. Iron & Foundry Co., 124 Mo. 354; Elliott on Roads aud Streets (2 Ed.), sec. 693; Pueschell v. Wire & Iron Works, 79 Mo. App. 462.

— Hon. Alex. H. WallerJudge. (1)The denial stands in the place of the petition in an ordinary action, and must contain all the requisites of a petition. Stevenson v. McFarland, 162 Mo. 159, 168; McPherson v. Railroad, 66 M'o. 103, 111; Provenchere v. Reifess, 62 Mo. App. 50; R. S. 1899, sec. 3451. (2) The denial must contain all the averments, and must state all the facts, which would be essential to a good petition by the defendant in an action against the garnishee.

— Hon. Alonso D. Burnes, Judge. (1) The court erred in refusing appellant’s instruction numbered 1, which directed the jury to find for him.

— Hon. Samuel Davis, Judge. (1) The note which was the foundation of the suit was signed by two persons, each equally bound by the terms of the note for its payment to the plaintiff. Harper was dead hut Charles P. Scott was living and made a party to the suit, and judgment asked against the estate of George W. Harper, deceased, and Charles P. Scott. Plaintiff was a competent witness and it was error to strike out her testimony.

— Hon. George F. Long cun, Judge. (1) Tbe court erred in sustaining the motion of defendant in error to dismiss, the court had jurisdiction over the defendant. R. S. 1899, secs. 3839, 3862. (2)Plaintiff in error had a right to bring his suit against the defendant in error in Pettis county as the contract for services was made in said county. R. S. 1899, sec. 997; Mikel v. Ry.' 54 Mo. 145; Rippstein et al v. Ins'.

— Hon. Howard Gray, Judge. (1) The court erred in permitting the plaintiff, against defendant’s objection, to read in evidence tbe deed of conveyance from the White River Ry. Co. to the St. Louis, Iron Mountain & Southern Ry. Co. (2) It is conceded that the city authorities of Carthage vacated Summer alley in-1878, by an ordinance duly passed and approved on the thirteenth of June.

— Now. Louis Hoffman, Judge. (1) A writ of certiorari is to prevent inferior courts from exceeding their jurisdiction where no appeal lies. State ex rel. v. Co. Court, 45 Mo. App. 387; State ex rel. v. Edwards, 104 Mo. 125State ex rel. v. Shelton, 154 Mo. 670, 692. (2) The writ is only allowed where no appeal or writ of error is afforded. RailAvay v. Young, 96 Mo. 39; State ex rel. v. Cauthorn, 40 Mo. App. 94; State ex rel. v. Shelton, 154 Mo. 670, 692.

<p>1. ADMINISTRATION: Exhibition of Demand: Written Instrument: Pleading. The statue requires a demand against an estate to be in writing and state the amount and nature of the claim with a copy of the instrument of writing upon which the claim is founded, and a demand set out in the opinion is held:</p> <p>1. That the demand is not upon a written instrument but is for money had and received.</p> <p>2. That the nature of the demand is sufficiently stated.</p> <p>3. That if the statement was indefinite defendant should have moved to make it more definite and cannot after verdict maintain the belated complaint of its indefiniteness.</p> <p>2. _: .__: Evidence: Account Book. An entry in an account book is examined and held to have been properly admitted in evidence whether considered as an original entry or as a mere incompetent memorandum, since it had been exhibited to the decedent and received his approval.</p>

— Ho». Hugh Dabbs, Judge. (1) Whether in a given case notice sent through the post office is sent by the proper mode is a question of law when the facts are ascertained and undisputed. Linville v. Welch, 29 Mo. 203; Sanderson’s Admr. v. Reinstadler, 31 Mo. 1. c. 487; Bank v. Lawrence, 1 Pet. (U. S.) 682; Bank v. Bender, 21 Wend. 643.

— Son. Shannon G. Douglass, Judge. (1) The verdict is against the evidence and was manifestly for the wrong party. 1 Tiedeman on Sales, sec. 56. (2) The Statute of Fraud: page 856, chapter 31, R. S. 1899, sec. 3419; Wood on Statute of Frauds, (1 Ed.), p. 634, note 2, pp. 635-638; Tiedeman on Sales, sec. 69, page 83; Story on Sales, sec. 278; Harvey v. Butcher’s Association, 39 Mo: 217; Kirby v. Johnson, 22 Mo. 354; Gro.

— Hon. James H. Blover Judge. (1) The court erred in submitting tbe case to tbe jury. On tbe pleadings and evidence tbe plaintiff cannot recover, bence tbe demurrer and peremptory instructions were improperly overruled. Thompson v. Railroad, 135 Mo. 217; Obitty v. Railroad, 148 MO'. 74; Yall v. Gilbam, 187 Mo. 408; Lowenstein v. Railroad, 110 Mo. App. 688; Kleiber v. Railroad, 107 Mo. 249; Hite v. Railroad, 130 Mo. 141.

— Hon. Argus Cox, Judge. (1) The evidence does not bring the same within the provisions of section 1100, Revised Statutes, 1899; Session Acts 1852-3, p. 141, sec. 44; Isaacson v. Railroad, 94 N. Y. 278; 16 Am. & Eng. R. R. Oases, 190-1-3. No brief filed.

— Eon. Joseph D. Perhins, Judge. (1) Relators were not parties to said case. Were they privies? We contend that they were not, and that said judgment does not effect them one way or another and their rights were not adjudicated thereby in and to these tax bills or as to the validity of them. 1 Herman on Estoppel and Res Adjudicata, p. 51, sec. 57; same p. 85, sec. 84; same p. 88, sec. 95; same p. 94, sec. 94; same p. 155, sec. 145; Hunt v. Haven, 52 N. H. 162; 21 Am. & Eng.

— Hon. Shannon O. Douglass, Judge. (1) Plaintiff was not entitled to recover on tbe bond sued on. Sec. 4344, R. S. 1899 (sec. 7080, R. S. 1889). (2) Judicial acts must be shown by the record of the court and where an act is directed to be performed by the court, the act of the judge is insufficient. Smith v. Estes, 72 Mo. 312; Snuffer v. Howerton, 124 Mo. 637; Koch y. Railroad, 77 Mo. 354.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. The plaintiff is not entitled to recover, (a) The evidence showed only one cause which produced the accident, viz., the conduct of the passengers, including plaintiff. The plaintiff tells a story which is so grossly improbable as to show that it is unworthy of belief. He claims that he was told by the collector to go where he went.

— Eon. D. E. Eby, Judge. The plaintiff charged negligence against defendant and the proof negatived that charge. It is a wel’l-settled principle of pleading that a party cannot base a claim to recover upon a specific act of negligence charged in his petition, and then be permitted to recover by making proof of another act of negligence not charged in the petition. And proof of other acts of negligence not pleaded will not be permitted. Breeden v. Mining Co., 103 Mo.

Louis City Circuit Court. — Now. Warwick Hough, Judge. The trial court erred in instructing the jury at the close of the evidence for plaintiff, that plaintiff could not recover and that their verdict must be in favor of defendant. Mortgage Co-, v. Rees, 21 Col. 435; Siddall v. Jansen, 168 111. 43; Fisher v. Cook, 23 111.

<p>Appeal from St. Louis City Circuit Court. — Son. Daniel D. Fisher, Judge.</p> <p>The matters objected to not having been made matters of exception during the term at which they occurred, there is nothing before the court for review except the record. Richardson v. Mechanical Ass’n, 156 Mo. 407; Smith v. Baer, 166 Mo. 392; Plefka v. Knapp-Stout & Co. Company, 166 Mo. 7; State v. Williams, 147 M'o. 14; Pace v. Shoe Co., 103 App. 662; O’Bannon v. Railroad 106 App. 316.</p>

— Hon. David H. Eby, Judge. The action was brought and sustained under the authority of the decision of this court in the case of State ex rel. v. Gravel Eoad Company, 138 M'o. 332.

Louis City Circuit Court. — Som.. Wármelo Sough, Judge. A parol lease for a term of years creates a tenancy from year to year. Kerr y. Clark, 19 Mo. page 132; Ridgely v. Stilwell, 28 Mo. 403; Ridgely v. Stilwell, 25 Mo. 571; Delaney v. Flannigan, 41 Mo'. App. 656; Hosli y. Yokel, 58 Mo. App. 169; Tiefenbrum y. Tiefenbrum, 65 Mo. App. 253; Scully v. Murray, 34 Mo. 420.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. The defendant is charged with the liability of a connecting carrier. In order to render it liable as such it must he shown that the goods were received by it under the original contract, or that there was some traffic agreement between the initial carrier and tbe one charged as a connecting carrier. The defendant, in all events, had the right to require the consignee to sign the average bond before delivering the cement.

Louis City Circuit Court. — No». Moses , N. Bale, Judge. The court erred in overruling defendant’s objections to the introduction of any evidence, because the petition does not disclose any cause of action under either section of the damage act. It cannot be founded on section 2864, because it does not sue for the penalty therein provided. It cannot be good at common law, because no action lies at common law for an injury resulting in death. 1 Joyce on Damages, sec. 486.

— Eon. David H. Eby, Judge. The court committed error in finding for the plaintiff as there was not a particle of evidence upon which to base such a finding, and the judgment should be reversed. House v. Montgomery, 19 Mo. App. 170; School District v. Lindsay, 47 Mo. App. 134; Vaughn v. Rupple, 69 M'o. App. 583, 586; Hurt v. Adams, 86 Mo. App. 73; Nelson v. Nelson, 41 Mo. App. 133; Boyce v. Railway, 168 Mr. 583.

Louis City Circuit Court.— Eon. Moses N. Sale, Judge. The trial court erred in allowing to amend. The power to amend by interlineation is a limited power, and not equivalent to the general power to amend after sustaining a demurrer. Defendant claims that plaintiff invoked the law of amendment by interlineation, and not the law governing amendments generally by filing a new petition.

— Eon. Damd E. Ety} Judge. Mrs. Levy was not a competent witness for the reason that at the time plaintiff claims the contract for hire was made the plaintiff was of such tender years she was incapable of contracting. And if the contract was made which Mrs. Levy testifies to, it was made between Mrs. Levy and Mrs. Roberts, and Mrs. Roberts being dead, Mrs. Levy was incompetent as a witness.

Louis City Circuit Court. — Now. O’Neill Ryan, Judge. The descent and distribution of personal or movable property in all cases where its owner died intestate is governed exclusively by the law of the deceased owner’s last domicile. Story on the Conflict of Laws (8 Ed.), p. 677; 2 Kent Comm., 429; 22 Am. and Eng.

— Hon. David H. Eby, Judge. Where one is not insolvent and a conveyance made by him does not render him SO', such conveyance is not fraudulent as to creditors although there be no consideration therefor. Fehling v. Bursch, 165 Mo. 144.

Lonis County Circuit Court. — Son. John W. McElhinney, Judge. (1) The verdict and judgment convicting appellant Volimer of common assault and battery in the manner charged in the indictment is not supported by any evidence whatever sufficient to warrant a conviction of crime, and as to this appellant at least the judgment ought to be reversed, because there is no evidence sufficient to sustain it. State v. King, 174 Mo. 647.

Louis City Circuit Court. — Eon. Eoratio D. Wood, Judge. The judgment should he reversed because the evidence undeniably shows there was no failure to exercise ordinary care on the part of defendant. Where'there is no duty there can be no negligence. Where defendant owed a duty but did not owe it to the plaintiff, he cannot recover. 1 Shearman & Redfield on Neg.

— Eon. Henry G. Pepper, Judge. In such cases there is nothing for this court to review except the record proper. St. Charles ex rel. v. Deemer, 174 Mo: 122; Williams v. Harris, 110 Mo. App. 538. This court cannot, in the absence of a motion for new trial or to set aside the order dismissing the cause, consider the errors assigned, even if they are preserved in the bill of exceptions. Klotz v. Perteet, 101 Mo. . 216; Railroad v. Carlisle, 94 Mo. 166.

Louis City Circuit Court. — No». Matt. G. Reynolds, Judge. Tb'e plaintiff was a fellow-servant with the other men working with him and around him, in loading* and unloading* the cars. If he was injured by the negligence of anyone, it was the negligence of a fellow-servant.

Louis City Circuit Court. — Now. Moses N. Sale, Judge. This insurance was for loss occasioned by the felonious abstraction of any of the property described in the “Schedule” attached, if taken from the interior of the house, No. 3125 Laclede avenue, St. Louis, while actually occupied by Dora Casner, whether taken by an employee or any other person. “Jewelry” and “money” were described in the “Schedule;” they were feloniously abstracted from the interior of the premises.

— Now. David N. Eby, Judge. The court erred in making any allowance for the reason that the court in the decree of divorce made no allowance, hence there was nothing to> modify. Lukowski v. Lukowski, 98 Mo. App. 204. There is no proof of any new facts or condition occurring since the divorce on which to base a modification of the decree. West v. West, 94 Mo. App. 683; Deidesheimer v. Deidesheimer, 74 Mo. App. 234.

Louis City Circuit Court. — Hon. O’Neill Bycm, Judge. (1) The plaintiff was' not entitled to a judgment declaring a lien on the defendant railroad because the materials were not furnished to' the railroad company or to any contractor with said company having in charge the building, construction or improvement of such railroad or any part thereof. R. S. 1899, section 4239, p. 1019; Yon Frank v. Brooks, 93 Mo. App. 412; Sween v. Railway, 85 Mr. 87; Hetzell v. Gary Co., 20 Mo.

— Eon. E. B. McKee, Judge. Any variances between the original petition and the petition on which the case was tried were waived by the defendant answering the last petition and going to trial. Sanguinett v. Webster, 135 Mo. 343; Sauter v. Leveridge; 103 Mo. 615. If the court erred in refusing to sustain any of defendant’s various motions, the. legal effect of the answer and joining issues in trial was to waive the right to have any of the court’s rulings reviewed.

— Hon. David H. Eby, Judge. The act of withholding from record a mortgage for the benefit of the mortgagor, is a fraud in law, and gives a. fictitious credit to the mortgagor upon the supposition that the property which he apparently owns is unincumbered and subject to claims of creditors in general. It is a legal fraud, although no actual intent to defraud be shown.

— Son. Jas. T. Seville, Judge. It was the intention of the Legislature in enacting the section now 111, R. S. 1899, to place the husband and wife on equal terms as to the property of the other. Wood v. Donaldson, 87 Mr. App. 1. The absolute property of widow cannot be disposed of by will. Hasenritter v. Hasenritter, 77 MO'. 162; Coulter v. Lyda, 102 Mo. App. 411.

— Son. David S. Eby, Judge. The sole question in this case is that of delivery of the quit-claim deed from Theodore Rendlen to Albert R. Smith and the quit-claim deed from Smith to- Alice Rendlen. If such deeds were delivered before the death of Catharine Rendlen then the title did not pass to Alice Rendlen and Theodore had the title at the date of the levy.

Louis City Circuit Court. — Now. Daniel D. Fisher, Judge. What amounts to a waiver is a question of law; and such questions should not be submitted to tbe decision of the jury. Morgan v. Durfee, 69 Mo. 469. Waivers are either express or impliedthe former are evidenced by contract; the latter rest upon the presumed intention which the law prescribes to certain acts or conduct following a charge in the relationship of the parties. Union Tr. Co. v. Ins.

Louis City Circuit Court. — Now. Moses N. Sale, Judge. The court erred in refusing the demurrer to plaintiff’s evidence, because the petition alleged a marriage on the fifteenth day of April, 1890, and plaintiff (after having sworn to three dates of such marriage) admitted that she never was married to defendant on that day or any other, but relied on a common-law marriage. A plaintiff Cannot' allege one cause of action and recover on another.

— Hon. Houston W. Johnson, Judge. (1) There was no* contract between the plaintiff and his attorneys as to the amount of the fee, neither was there a stipulation signed and filed authorizing the court to fix the fee. Before an attorney’s fee can be allowed and taxed as cost in the case it must be shown that a contract was made between the plaintiff and his attorneys fixing the amount of the fee or a stipulation signed and filed authorizing the court to fix the fee.

Louis City Circuit Court. — No». Moses N. Bale, Judge. Statement. — Tbe suit is for money bad and received. A jury being waived, tbe trial was bad before tbe court, wbo found tbe issues for tbe defendant. Plaintiffs have appealed here. Tbe facts out of wbicb tbe controversy grew are as follows.

— Hon. Edwin R. McKee, Judge. This is an action brought before a justice of the peace to establish an agister’s lien under sections 4228, 4229 R. S. 1899. The complaint, which appears in the abstract, failed to aver a necessary jurisdictional fact, to-wit, that plaintiff 'was a resident of LaBelle township, Lewis county, in which the suit was brought.

— Hon. Nat. M.. Shelton, Judge. In the absence of a statutory rule to the contrary tbe addressee of a telegram can maintain an action for a failure to correctly transmit it only when tbe company has knowledge that it is for bis benefit; and where tbe benefit to tbe addressee would be incidental to carrying out tbe contract but was not tbe cause of making tbe contract an action cannot be maintained for tbe breach; consequently, in tbe absence of such allegations and proof,…

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. The constitutional provisions, forming the contract with the members as to the designation of beneficiary, and the change thereof, cannot be waived by the corporation, nor by its officers. Nibolack on Ben. Assns., s:ec. 215, p. 413; Head v.- Providence Ins. Cop 6 U. S. 127, 2 Cranch, 127; Leonard v. Am. Ins. Co., 97 Ind. 299; Smith v. Smith, 62-111. 494; Couch v. Fire Ins. Cop 38 Conn. 181; Plalito v. Ins.

Jmnes D. BarnettJudge. (1) It was error to instruct the jury that they might take into consideration the falsity of the defense as an aggravation of damages. Browning y. Powers (Mo.), 38 S. W. 943; Kansas City Star Co1. y. Carlisle, 108 Fed. 344, 47 C. O. A. 384. Upton v. Hume, 34 Ore. 420; Upton v. Hume, 21 L. R. A. 493; Sloan v. Petrie, 15 111. 425; Kennedy v. Houghtaling', 37 Mich. 41; Ward y. Dicko, 47 Conn. 300, 36 Am. Rep. 75; Odgers, Libel & Slanders, sec. 274.

— Hon. Henry O. Pepper, Judge. (1) The instructions now under consideration did not follow the pleading of the defendant; the instructions must be based on the evidence and the pleadings both. The allegation in the pleading is that defendants ordered the goods as agents at plaintiff’s request for a fixed commission, and this instruction assumed that the evidence was that they had acted as the agents of Cos-tuba.

— Hon. Henry G. Riley, Judge. (1) It was the duty of the trial court to quash the execution, if the judgment upon which the same was bottomed was void, for lack of jurisdiction. A motion to quash was then the proper procedure. 1 Freeman on Executions (3 Ed.), sec. 73; Ex parte James; 59 Mo. 280; Newton v. Newton, 32 Mo. App. 162; Henring v. Williams, 65 Mo. 446.

<p>APPELLATE PRACTICE: Weight of Evidence. It is for the trial court, not the appellate court, to decide a point involving a determination of the weight of evidence.</p>

— No». Henry G. Riley, Judge. (1) There is no equity in respondent’s petition, because he had an adequate remedy at law.

Francois Circuit Court. — Eon. Robert A. Anthony, Judge. Under section 1061, Revised Statutes 1899, and amendments thereto, 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 respond in damages for destruction of crops by the Southern Missouri Railway Company.

— Eon. Asbury Burhhead, Judge. The failure of plaintiff to keep and perform the conditions of the iron-safe clause is a bar to any recovery in this action. Held: statutes of this kind are read into the policy as much so, as though provided for by its terms in language therein contained. Richey v. Ins. Co., 104 Mo. App. 146, 78 S. W. 341; Christian v. Ins. Co., 143 Mo. 460, 45 g. W. 268; Havens v. Ins. Co., 123 Mo. 403, 27 S. W. 718; Summers v. Ins. Co., 90 Mo. App. 691.

— Eon. E. R. McKee, Judge. Statement.- — The plaintiffs in error were the defendants in the court below. The bill prays an injunction against defendants, restraining them from maintaining a call bell and private telephone in connection with the main line of an unincorporated voluntary association owning a small telephone line for mutual convenience in Knox county.

— Eon. Eenry G. Riley, Judge. (1) The giving of said instruction was error because it singles out particular facts and' declares that as a matter of law if such facts are established the jury shall give the verdict accordingly. Copp v. Hardy, 32 Mo. App. 588; Meyer v. Pacific It. R. Co., 45 Mo. 137; State v. Holmes, 17 Mo. 379; Kendig v. Railroad, 79 Mr. 207. (2) This instruction being in the nature of a comment on the evidence, is improper and should not have been given.

— Hon. Henry G. Pepper, Judge. The demurrer should have been sustained, and there was no evidence to base plaintiff’s first given instruction on, even if we apply to defendant the rule ' that there must have been a user by the public for the full period of ten years, which, as the authorities cited below show, is not necessary in order to establish a de facto public road, still we would be within this rule.

— Hon. James D. Barnett, Judge. (1) Whether plaintiff went into1 the pump house at the time in question on the request of defendant’s employee Kenealy, in order to assist him, as charged in the petition, or wholly upon his oavu volition for his OAvn pleasure, plaintiff under the evidence has no case against defendant company.

Appeal 'from St. Charles Circuit Court. — Hon. Elliott M. Hughes, Judge. . (1) The court erred in not giving defendant’s instruction, asked at the close of plaintiff’s evidence, in the nature of a demurrer to said evidence.

— Hon. B. F. Davis, Judge. (1) Yerbal evidence cannot be received to add to, subtract from or vary a written instrument. Helmrich v. Geheke, 56 Mo. 79; Hunt v. Wood, 65 Mo. App. 529. (2) Where parties enter into a written contract their rights must be controlled thereby and in the absence of fraud or mistake all evidence of contemporaneous oral agreement on the same subject-matter, varying, modifying or contradicting written agreement is inadmissible.

<p>Appeal from Oregon Circuit Court. — Hon. W. N. Evwis, Judge.</p>

— Hon. Henry O. Riley, Judge. (1) The verdict of the jury is not responsive to the issues, and is not such as the law requires, because it fails to find the value of the defendant’s possession, or the special interest of the defendants therein. The verdict should have found defendant’s special interest, or the value of his possession. Dilworth v. McKelvey, 30 Mo. 149; Boutell v. Warne, -62 Mo. 354; Fulkerson v. Dinkins, 28 Mo. App. 160; Clinton v. Stovall, 45 Mo.

<p>1. MASTER AND SERVANT: Negligence: Prima Facie Case. In an action by a minor child for damages on account of death of her father, caused by the negligence of the defendant, his employer, where the testimony showed that he was hilled by the explosion of a fly wheel in the defendant’s factory where be was employed, that an automatic “Governor” was necessary in order to prevent the fly wheel from revolving too rapidly, that the “Governor” broke, and before a new one was installed the revolutions of the fly wheel were regulated by the engineer sitting at the throttle to regulate the admission of the steam into the cylinder, that that method of regulation was impracticable, that the deceased was taken from his regular business and put to regulating the throttle, and while doing so, the motion of the fly wheel became so rapid that the explosion occurred and caused the death, plaintiff made out a prima facie case.</p> <p>2. DEATH CLAIM: Elements of damage to minor child. Inan action by a minor child for damages on account of the death of her father caused by defendant’s negligence, the” plaintiff was entitled to recover for loss of support, education and maintenance, and the intellectual and moral instruction of the deceased parent</p> <p>3. -: -: Excessive Verdict. In an action by a minor child 13 years of age for damages on account of the death of her father caused by defendant’s negligence, where it was shown that the father was a man of exemplary character, and that she was obliged to depend upon him for maintenance and education, a verdict for $4,200 was not excessive.</p> <p>4. -: -: Instruction. In such cases where the instruction for plaintiff in relation to the measure of damage was general, pointing out no particular element of damage, and where the defendant neither asked instructions defining the elements of damage, nor discussed' that subject to the jury, the defendant cannot be heard to complain that the jury’s discretion in estimating damage was too large and the verdict excessive for that reason.</p>

<p>Appeal from Iron Circuit Court. — Eon. E. M. Dearing, Judge.</p>

— Hon. James L. Fort, Judge. (1) At common .law a railroad company was not required to fence its road, and is not required to fence independent of any statutory requisition. 1 Redfield on Law of Railroads (5 Ed.), page 492, sec. 11; 3 Elliott on Railroads, secs. 1180 and 1181, pages 1803 and 1807.

<p>Appeal from Greene Circuit Court. — Hon. James T. Ne-ville, Judge. .</p>

— Hon. Samuel Dams, Special Judge. The jurisdiction attaches upon the. filing of a proper petition by twenty land owners of the county, along* or contiguous to the line of the railroad in the county, in like manner as by tbe filing of a proper petition for an election: Gaston v. Lamkin, 115 Mo>. 20, 21 S. W. 1107; State ex rel.

— Hon. Henry O. Pepper, Judge. The question of the judgment or its assignment or revival is not before this court, being only raised by the evidence and brief.of respondent and is not mentioned in the pleading in making up the issue; but suppose a man should assign a judgment and moves to another State or a foreign country and dies there, or he has no property upon which to administer and there is no administrator appointed on his estate, then in that case the assignee can…

<p>1. PRINCIPAL AND SURETY: Appeal Bond: Judgment against Surety on Appeal from a Justice of the Peace. Under sections 4081 et seq., Revised Statutes of 1899, a judgment in the circuit court on appeal from a justice of the peace, can be rendered against the surety on the appeal bond only when judgment is at the same time rendered against the principal. Where on such appeal the case was dismissed as to the principal and judgment rendered against the surety, it was contrary to the general rule of law by which a release of the principal releases the surety, and contrary to the language of the statutes.</p> <p>2. -: -: -: Negligence. Where on an appeal from a judgment rendered by a justice of the peace, the cause was dismissed as against the principal and judgment rendered against the surety, the surety was not necessarily negligent in failing to look after the case until the term had passed at which the judgment was rendered, and he could afterwards maintain an action to enjoin the levy of an execution issued upon the judgment, on the ground of fraud in its procurement.</p> <p>3. APPELLANT PRACTICE: Record Proper: Ruling on Demurrer,. A demurrer, the ruling thereon and the final judgment entered in pursuance of the ruling are parts of the record proper and may be reviewed on appeal without motion for new trial or bill of exceptions.</p>

— Hon. Henry C. Riley, Judge. All the testimony conclusively established the fact that at the time J. T. Hunt collected the money from Phillips, the partnership of Roberts & Hunt was extinct. This being true there could be no liability on the part of F. D. Roberts to answer for the tortious acts of J. T. Hunt in converting the money so collected to his own private use.

<p>Appeal from Audrain Circuit Court.— Eon. Jamies D. Barnett, Judge.</p> <p>(1) The court may at any time correct a clerical error. Ross v. Ross, 83 Mo. 102; Coop v. Northcutt, 54 Mo. 129; Laxton v. Smith, 50 Mo. 490; Priest v. Masters, 52 Mo. 61; Turner v. Christie, 50 Mo. 147; Allen v. Sales, 56 Mo. 28. (2) It is the policy of the law to uphold judicial sales and look with leniency in minor irregularities. Jones y. Manly, 58 Mo. 559. (3) When the description in an administrator’s report of sale differs from the description in the order of sale it will be presumed to be a clerical error. Agan v. Shannon, 103 Mo'. 661, 15 S. W. 757; Loring y. Gromer, 110 Mo. 632, 19 S. W. 950; Mitchener v. Holmes, 117 Mo. 209, 22 S. W. 1070; Thompson v. Thompson, 115 Mo. 57^ 21 S. W. 1085, 1128. (4) A marketable title is one which a reasonable purchaser,well informed as to the facts and their legal bearing, willing and anxious to perform his contract, would, in the exercise of that prudence which business men ordinarily bring to bear upon such transactions, be willing to accept and ought to accept. The doubt must be such as affects the value of the land or will interfere with its sale-. Mathematical certainty is not required. Todd y. Union Dime Say. Inst., 128 N. Y. 639; Atkinson v. Taylor, 34 Mo. App. 452. (5) Such defects as the ones complained of by plaintiff in the description do not render the title unmarketable. Mitchener v. Holmes, 117 Mo. 185. (6) There is no implied covenant in a contract of sale that the title will be such as the vendee may be willing to accept or that his attorney may pronounce good and marketable. Green v. Ditsch, 143 Mo. 12, 44 S. W. 799. (7) The will of Robert Rose manifests a clear intention that testator desired to vest title to 120 acres of land in Asbury Rose, and charge it to him as an advancement in the sum of $600. The will describes the land. The partition proceedings is based on the will, recites the advancement of real estate charged in the will, deducts it from Asbury’s share of the estate, and all the heirs being parties to the partition proceedings, the clear effect of the judgment is to vest in Asbury W. Rose an unquestionably good record title to the land in controversy. Allison y. Chaney, 63 Mo. 279; Nichols y. Boswell, 103 Mo. 151, 15 S. W. 343; Cochran v. Thomas, 131 Mo. 258, 33 S. W. 6; Lindell R. E. Co, v. Linden, 142 Mo. 61, 43 S. W. 368. (8) It is sufficient if defendants had good title any time before judgment. That the title could have been made marketable does not admit of doubt, and when plaintiff refused to take the title, even if made perfect, he committed the first breach and cannot recover. Scannel v. Soda Fountain Co,, 161 Mo, 621, 61 S. W. 889; Luckett v. Williamson, 37 Mo. 395; Isaacs v. Skrainka, 95 Mo. 524, 8 S. W. 427; Baldwin v. Salter, 9 Paige 473; Oakey v. Cook, 41 N. J. Eq. 36%; Jenkins v. Fahey, 73 N. Y. 355; Dressell v. Jordan, 104 Mass. 416. (9) The failure to show the issuance and recording of a patent did not render the title unmarketable. The certificate of entry was sufficient. R. S. 1899, sec. 3054; Wirth v. Branson, 98 U. S. 121.</p> <p>(1) Appellant contracted to furnish plaintiff an abstract “showing good and merchantable title.” A title which is doubtful or non-marketable is, not a good title. “Every purchaser of land has a right to demand a title which shall protect him from anxiety, lest annoying if not successful suits be brought against him and probably take from him or his representatives, land upon which money was invested. He should have a title which would enable him not only to hold his land, but to hold it in peace, and if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value.” Waterman Specific Performance, sec. 412; Lucket v. Williamson, 31 Mo. 54; Mitchner v. Holmes, 117 Mo. 185, 22 S. W. 1070; Mastín v. Grimes, 88 Mo. 478; Green v. D'itsch, 143 Mo, 1, 44 S. W. 799; 1 Ballard on Real Property, sec. 430; 3 BaTard on Real Property, sec. 767; Bruce v. Wolfe, 102 Mo. App. 389, 76 S. W. 723; Constantine v. East, 35 N. E. 844. "(2) The judgment and proceedings in the probate court were erroneous and not simply irregular. Therefore the probate court had no province to correct, modify or set aside the proceedings at a subsequent term. The proceeding therefore by Wm. L. Wright, agent, in 1903, did not correct the title. Orvis v. Elliott, 65 Mo. App. 96; Hall v. Lane, 123 M'o. 635, 27 S. W. 546.</p>

Louis City Circuit court . — Hon. Mouses A*. Sale, Judge. (1) From October 29, 1903, the contention in this case of the garnishees is: that every act of both constable and justice was irregular, i. e., on October 29, 1903, the execution issued on July 31, 1903, might have been renewed by the justice. Section 4038, G. S., page 972.

Charles Circuit Court. — Hon. H. W. Johnson, Judge. (1) The court erred in admitting in evidence section 1753 of the Municipal Code of St. Louis, McQuillin, 1901, because not pleaded and because a violation of it was not the proximate cause of the plaintiff’s injuries. Eisenberg v. Railroad, 33 Mo. App. 85; State ex rel. v. Railroad, 46 Mo. App. 466; Judd v. Railroad, 23 Mo*. App. 56; Danker v. Goodwin Mfg. Co., 102 Mb'. App. 723, 77 S. W. 338; Welch v. Railroad, 26 Mo*.

<p>1. NEGLIGENCE: Instruction: General Charge. In an action for personal injuries caused by the negligence of the defendant, an instruction which authorized a verdict for plaintiff if they should find the injury was caused by the negligence of the defendant, was not improper, where the instruction further required the jury, in order to return a verdict for the plaintiff, to find the defendant was guilty of the particular acts of negligence complained of.</p> <p>2. STREET RAILWAYS: Negligence Per se: Excessive Speed. A speed by a street car in excess of the limit fixed by ordinance is negligence ver se and where one -is injured by a collision with a, street car running at a speed in excess of the ordinance limit, the street railway company is liable to him in damages if such excessive speed directly contributed to cause his injuries, when he, himself, was in the exercise of due care.</p> <p>3. -: Negligence: Instruction. Where a street car collided with- a wagon, throwing it against the wagon of plaintiff thereby injuring him, in an action against both the street railway company and the owner of the wagon, an instruction, which authorized a verdict against the street railway company and exonerated the owner of the wagon only in case the motorman’s negligence was the sole cause of the accident, was not error.</p> <p>4. PERSONAL INJURIES: Measure of .Damages: Permanent Injury. In an action for damages on account of personal injuries, an instruction which authorized the jury in awarding damages to take into consideration permanent injuries suffered by plaintiff was erroneous, where the only evidence in regard to future injuries. was entirely speculative, such as the evidence of a physician that permanent injury might result from the injury or might not.</p>

— Now. John W. MoElhmney, Judge. (1) At common law, tbe occupying claimant wbo has been defeated in an action of ejectment, is not entitled to improvements made by himself or his grantors while they were in possession of the premises. Dothage v. Stewart, 35 MO'. 251, 254; Schlemmer v. North, 32 Mo. 106; Stump v. Hornback, 109 Mo. 272, 278, 18 S. W. 37.

Francois Circuit Court. — -Soil Robert A. Anthony} Judge. The deed introduced by plaintiffs under the decision rendered in this court in the case of Karn v. Illinois Southern Railway Company exempts the Illinois Southern Railway Company from liability incurred by the Southern Missouri Railway Company prior to the sale evidenced by said deed. Karn v. Illinois Southern Railway Company, 114 Mo. 'App. 162, 89 S. W. 346; Burge v. Railroad, 100 Mo. App. 460, 74 S. W. 7.

— No». Henry G. Riley, Judge. The court committed error in refusing plaintiff’s peremptory instruction offered at the close of the defendants’ case. There was not one word of testimony on the part of defendants tending to show that they had complied with the terms of the written order in regard to the notice of the defects in the machinery which they were required to give.

<p>Appeal from Lawrence Circuit Court. — Hon. F. C. Johnston, Judge.</p>

— No». Henry O. Riley, Judge. (1) By the uncontradicted testimony of all the witnesses, the appellant furnished the respondent with new, approved and perfect climbing spurs — such as are used by all climbers — and that the “graft”' or “spike” on these climbing spurs were changed by request and direction of appellant who had used them and who alone was to use them. Where this is so the master is not liable. 4 Thompson on Neg.

Louis County Circuit Court. — Hon. John W. McElhirmey, Judge.