Volume 117 — Missouri Appeal Reports

Charles Circuit Court. — Eon. James D. Barnett, Judge. (1) The court erred in permitting the respondent to testify as a witness in her own behalf. She was clearly incompetent to testify under the statutes.

— No». Jamies L. Forty Judge. Instruction No. 13, requested by the defendant, ought to have been given. The employer is not an insurer of the sufficiency, nor of the absolute safety of the applicances furnished by him. He is required only to use ordinary and reasonable care and foresight in procuring such appliances and keeping them in repair, to the end that the same shall be safe. Flynn v. Union Bridge Co., 42 Mo.

— No». Henry G. Riley, Judge. (1) The court erred in refusing to sustain the demurrer to the evidence. The plaintiff had failed to make out any case against the defendant. Even upon his own testimony (and he was the only witness for plaintiff who undertook to say what the contract was), he had made no contract with defendant enforcible at law. He refused to swear that he even obligated himself to> use diligence in carrying out, on his part, the alleged contract.

— No». F. G. Johnston, Judge. (1) The rule in this State has been time and again stated to be, that if the pleader alleges specific acts of negligence as cause of the injury to himself or his property, he must prove the acts alleged,- else he will fail in his action. Galm v. Railway, 87 S. W. 1015; Farr v. Express Co., 100 Mo.

Louis City Circuit Court. — No». Moses N. Sale, Judge. (1) The action of defendant’s directors in merely adopting a resolution declaring a dividend was incomplete, and was not alone sufficient to vest in -this plaintiff a right of action for the installment due April 1st. Ford v. Easthompton Rubber Co., 158 Mass. 184; 9 Am. and Eng.

— Hon. Jas. T. Ne-ville, Judge. Statement. — Plaintiffs are partners doing business under the firm name of the Puritan Manufacturing Company, of Iowa City, in the State of Iowa. They are manufacturers of jewelry and novelties. Defendant is a merchant doing business in the city of Springfield, Missouri.

Error t6 Cape Girardeau Circuit Court. — Hon. Henry G. Riley, Judge. Before the verdict of a jury can be set aside, it should appear that there is no. evidence to support it. Mere insufficiency is not sufficient. Steube v. I. & F. Co., 85 Mo. App. 640; James, v. Life Association, 148 Mo., 1-16, 49 S. W. 978; Duerst v. St. L. Stamping Co'., 163 Mo. 607, 63 S. W. 827.

<p>Appeal from Pemiscot Circuit Court. — How. Henry C. Riley, Judge.</p>

<p>Appeal from Pemiscot Circuit Court. — Hon. Henry O. Rileyj Judge.</p>

— Eon. Henry G. Riley, Judge. (1) There must be a final settlement made of an estate, before a creditor can maintain an action suggest ing cleva-stavit of an estate, and the record in this case shows that none had been made in the J. C. Taylor estate. Sections 268, 273, R. S. 1899; Ridgway y. Her foot, Admr. of Gordon, 22 Mo. App. 661.

— Son. Jamies T. Seville, Judge. (1) A proceeding for a rescission of a contract is a different thing from one which is based upon a rescission. In a proceeding as for a rescission, a party may offer in his complaint to restore, unless he shows he is entitled to retain what he has received.

Louis City Circuit Court. — No». O’Neill Ryan, Judge. What acts constitute statutory indignities will depend greatly on the facts of each case. The Legislature has chosen to leave the subject at large, and by the general words employed evidently designed to leave each case to be determined according to; its own peculiar circumstances. McSann v. McCann, 91 Mo. App. 1; Lynch v. Lynch, 87 Mo. App. 32; Webb v. Webb, 44 Mo. App. 299; Brown v. Brown, 53 Mo. App. 453.

Louis City Circuit Court. — JETcm. Daniel J. Taylor, Judge. The record contains no evidence authorizing recovery of punitive damages, and the court erred in permitting a recovery thereof. Trauerman v. Lippincott, 39 Mo. App. 486; Ickenroth v. Transit Co., 102 Mo.

Louis City Circuit Court. — No». Moses N. Sale, Judge. (1) Instruction numbered two, as amended by the court, is not erroneous, in that it would warrant the granting of plaintiff a new trial under the facts in this case. Fulks v. Railway, 111 Mo. 341, 19 S. W. 818. (2) Instruction numbered four, given by the court on its own motion, is not erroneous in that it would warrant the granting of plaintiff a new trial under the facts in this case. Hornstein v. Railway, 97 Mo.

Louis City Circuit Court.— Hon. Walter B. Douglas, Judge. (1) The charge of negligence contained in the part the respondent asked the court to strike out stated actionable negligence against the respondents and said motion should have been overruled. . Plaintiff (appellant) having been placed by defendant (respondents) in a dangerous place, he was entitled to recover if injured while there without contributory negligence on his part. Devore v. Railroad, 86 Mo.

— Hon. B. 8. Byors, Judge. (1) It was the duty of the conductor to obey and follow tbe rules of the appellant and to observe the terms and conditions of the freight-train permit presented to him by the respondent. He could not be required to disobey or ignore any of them on the oral statement of the respondent. Sire v. Railway, 115 Mo. 127, 21 S. W. 905; Thomas v. Railway, 72 Mich. 355.

Louis City Circuit Court. — -Now. Walter B. Douglas, Judge. When tbe account filed is defective and does not comply with tbe statutory requirements, tbe defendant should either move tbat same be made more definite and certain or else object to tbe introduction of any evidence to support it; but if tbe objection to such pleading be not taken in one or tbe other of these ways, it shall be deemed waived. MacAdams v. Scudder, 127 Mo. 345, 30 S. W. 168; Labadie v. Maguire, 6 Mo.

— Hon. F. ■ GY Johnston, Judge. (1) The return of the sheriff on the writ of replevin was conclusive. Smoot v. Judd, 184 Mo. 518, 83 S. W. 481; Mason v. Perkins, 180 Mo. 707, 79 S. W. 683; Sams v. Armstrong, M's. Op. this Court, No. 1428, 8 App. 573, Mem. (2) The verdict does not support the judgment. Cordage Co. v. Yeargin, 87 Mo. App. 565; Kronk v. Reid, 105 Mo. App. 432 and 434, 79 S. W. 1001. (3) Respondent’s time checks were not admissible in evidence.

Louis City Circuit Court. — Eon. O’Neill Ryan, Judge. (1) The case made by respondent is fatally defective.

<p>Appeal from St. Louis City Circuit Court. — No». Daniel D. Fisher, Judge.</p>

Louis City Circuit Court. — Eon. Jas. R. Kinealy, Judge. (1) An action for deceit or fraudulent representations can not be maintained in the absence of proof that the party making the representations believed, at the time he made them, that they were false, and knowing them to be false, intended that the party to whom they Avere made should act upon them, or that the party making them assumed actual knowledge of their truth though conscious he had no such knoAvledge.

— Hon. Samuel Dams, Special Judge. (1) Upon the undisputed testimony, in this case, the plaintiff was not entitled to recover. Perry v. Railroad, 89 Mo. App. 49; Sloop v. Railroad, 93 Mo. App. 605. • (2) The instructions given at the plaintiff’s request were erroneous. Authorities cited, supra. (3) The instruction asked by defendant and refused, should have been given. Perry v. Railroad, 89 Mo. App. 49.

<p>1. COMMON CARRIERS: Pleading: Negligence: Recovery. Where a skipper bottoms his action solely upon negligence of the carrier and by his instructions submits that question to the jury, the burden is upon him to show the negligence in furnishing the cars or transportation and that such negligence was the proximate cause of the damage suffered.</p> <p>2. -: Negligence: Furnishing Cars: Instructions: Evidence. A shipper bottomed his action on negligence and submitted in an instruction the issue of negligence in failing to provide cars within a reasonable time. Held, that an instruction given for the carrier that the shipper could not recover if the carrier failed to furnish cars at any specified time was not in conflict with the shipper’s instruction and was properly given, since it restricted the jury in their finding; and the evidence is sufficient to support the finding of the jury.</p> <p>3. -: -: Delay in Shipment: Evidence. The evidence relating to an issue of negligence in the transportation of a shipment of cattle is reviewed and held sufficient to send the question to the jury, since the whole conduct of the carrier from the order to drive the cattle in until the delivery at the unloading chutes was for the triers of fact.</p> <p>4. -: Contract: Negligence. A carrier is not permitted to contract with the shipper to excuse himself from liability for damages resulting from his own negligence.</p> <p>5. -: -: Stipulations: Construction. A provision in a shipping contract estimating the weight of certain cattle at a given amount is only an estimate and is not binding as to the real weight of the cattle and will not defeat the recovery of the shipper for actual shrinkage resulting from negligence; and so a stipulation as to the value per head of the cattle is intended to limit the amount of recoverable damages and so long as the damages recovered are within that amount the carrier is in no position to complain.</p> <p>6. -: Pleading: Aider by Answer. Though a petition fails directly to say that the carrier received the cattle for transportation for hire it is held that such fact is fairly inferable from the other allegations; and where the answer sets up the contract showing it was for hire the defect if any is cured by the answer.</p>

<p>1. COMMON CARRIERS: Contract: Reduced Rate: Consideration. A common carrier with the shipper’s assent fairly obtained may, upon a sufficient consideration, restrict its common law liability to damages.</p> <p>2. -: -: -: -: Deceit. The carrier cannot make an unlawful assault upon the rights of the shipper without vitiating his contract; and the reality of the consideration expressed in the contract presumably procures the shipper’s consent to part with his substantial common law rights, and a fictitious reduction will deprive the carrier of the fruits of his deception.</p> <p>5. -: -: -: -: -: Classification. A contract is condemned because there was no rate for a non-release contract and the rate established and contracted for was not a reduced rate, and where for the purpose of shipment the carrier classifies cattle according to their value and so fixes the rate, the rate for cattle of a lower valuation cannot be compared with the rate for those of a higher valuation.</p> <p>4. -; Common Law: Interstate Commerce: Federa! Courts. The common law as affecting interstate shipments by common carriers is distinctly' recognized by the Federal Courts.</p>

— Hon. Hugh Dabbs, Judge. (1) The court erred in permitting plaintiff to testify to conversations between plaintiff and defendant’s agent prior to the time the policy was issued. Gillum v. Ins. Co., 106 Mo. App. 673; Ins. Co. y. Neiberger, 74 Mo. 167; Helm v. Railroad, 98 Mo. App. 419; Catterlin y. Lusk, 98 Mo. App. 182; Ins. Co1, v. Buchalter, 83 M'o. App. 504; Ijams v. Life Assn., 185 Mo. 466; Sowers v. Ins. Co. (Iowa), 85 N. W. 763.

<p>Appeal from Jackson Circuit Court. — Now. James Gibsow, Judge.</p>

<p>Appeal from Jackson Circuit Court. — Hon. James Gibson, Judge.</p> <p>(1) The court erred in refusing to- give instructions numbered 3 and 4 asked by defendants, and also in sustaining plaintiff’s objections thereto. If the plaintiff filed the notice of bringing this suit on June 4, 1901, then he cannot recover. The lien expired on May 31, 1901 (Kansas City Charter, art. 9, sec. 23, pp. 163-4-5) ; Section 18, article 9, pages 152-3-4-5-6 of the City Charter does not and was not intended to1 apply. United States v. Fischer, 109 U. S. 143 at 145; Springfield v. Starkee, 93 Mo. App. 70 at 76. The intent controls. Sutherland on Construction of Statutes (Ed. 1891), p. 309, sec. 234-5; Endlich on Interpretation of Statutes, (Ed. 1888), p. 11 sec. 8; Art. 9, sec. 17, p. 151, City Charter; art. 9, sec. 18, p. 153, City Charter; 1 Green-leaf on Evidence (15 Ed.), pp. 630-1, secs. 483, 484; sec. 496, p. 644; Sandy White v. United States, 164 U. S. 100, at “Second,” pp. 102-3; Evanstone v. Gunn, 99 TJ. S. 660; Galt v. Gallo-way, 4 Peters 332, at 342 bottom, and 343; Building & Planing Mill Co. v. Huber, 42 Mo. App. 437, 438; St. Louis v. Arnot, 94 Mo. 279; Kane v. School District, 48 Mo. App. 414, lower half of page; Reynolds v. Ins. Co., 88 Mo-. App. 682-3-4; Ohmeyer v. Woodmen, 91 Mo-. App. 200-1. (2) The co-urt erred in refusing to give instruction numbered 6, p. 142, and numbered 10 on page 144. It seems that the mere handing of this notice to the city treasurer is a filing of the paper with him. Building & Planing Mill Co. v. Huber, 42 Mo. App. 438; State v. Grate, 68 Mo. 25-6; Grubs v. Cone, 57 Mo. 84-5; Rowe v. Schertz, 74 Mo. App. 608, top; State v. Hockaday, 98 Mo. 593; 1 Greenleaf on Evidence, sec. 79, p. 121, (15 Ed.); U. S. v. Railroad, 191 U. S. 92; State ex rel. v. Schar, 50 Mo. 394; State v. Lipscomb, 52 Mo. 33; State v. Meek, 70 Mo-. 357-8-9; City of Kansas v. Muehlebach, 68 Mo. 640, and 641; State v. Hathaway, 115 Mo. 36; Richardson v. Drag Co-., 92 Mo-. App. 534-5; Railroad v. United States, 139 U. S. 567-8. (3) The ordinance requires publication of notice for public work to the lowest bidder, so as to allow competition. Art. 17, sec. 12 pp. 234-5, City Charter. (4) The notice was not in the regular edition. Plaintiff produced the Kansas City World of Friday, December 20, 1895, the four o’clock edition, vol. 2, No-. 339. It was not in the other edition. The charter evidently is designed to let work to the lowest and best bidder. The notice must go in all the papers and not in the first edition only, and out of the rest. The court erred in refusing to give this declaration of law. (5) The plaintiff cannot come into court "and get this condemnation money, and then on the same taxbills sell the land and get his money. By suing for the money in court he made his election and is bound by it. Boettger v. Roehling, 74 Mo. App. 257; Beagles v. Beagles, 95 Mo-. App. 338, “6” o-f syllabus page 339 and page 348-9; Bank v. Totten, 94 Mo. App. 603-4; Bangs Milling Co. v. Burns, 152 Mo. 350, “2” of syllabus p. 350, and p. 370-1; Dry Goods Oo. v. Warden, 151 Mo. 582, et seq; Stoller v. Coates, 88 Mo. 522-3; Robb y. Vos, 155 U. S. 38 to 43; Crescent Mining Co. v. Mining Co., 151 U. S. 322, bottom third of page; Peters v. Bain, 133 U. S. 695, bottom half of page; Manufacturing Co. y. The Attorney General, 124 U. S. 598, bottom and 599 and 600.</p> <p>Submitted an argument.</p>

— Eon. John Gr. Park, Judge. (1) The letters of Boisseau, dated September 7 and 17, 1903, and November 6, 1903, were inadmissible in evidence, as they were in no manner a part of the res gestae connected with issuing the bills of lading on May 28 and May 29, 1903; nor was.there any evidence of any authority having been given to Mr. Boisseau to make any admission of any kind on behalf of the company. Helm v. Railroad, 98 Mo. App. 425; Midland Lbr. Co. v. Kreeger, 52 Mo.

Jackson Circuit Court. — Hon. J. H. Slover, Judge. (1) The liability of a street railway company for the acts of its conductor in causing the arrest and prosecution of supposed offenders against the rights of the street, car company is set forth in the case of Boden v. Transit Co., 108 Mo. App. 696.

— No». J. E. Slover, Judge. (1) The matter in dispute was as to what was a reasonable fee for services rendered. To justify the setting aside the verdict in plaintiff’s favor there must have-been error “which substantially or materially affected', the merits of the action.” Moss v. Richie, 50 Mo. App. 79; Yaughan v. Railway, 31 Mo. App. Ill; Brink v. Railroad, 17 Mo. App. 196; Epstien v. Clothing Co., 67 Mo...

— Now. L. T. Dry den, Special Judge. (1) Respondent’s position as trustee (especially for the bank stock) is clearly antagonistic to Ms position as president of tbe new bank; tbe respondent deposited the trust fund to his own credit; converted it to his own use; used it for his own benefit; kept no bank account, book account or any other record of the trust fund to which anyone (even himself) could refer and obtain an accurate account of the investment and amount due…

— Eon. J. E. Slover, Judge. (1) There is no evidence that the rock which struck the plaintiff came from the place where the defendant was blasting. Hite v. Railroad, 130 Mo. 132 ;• Stokes v. Burns, 132 Mo. 214; Oglesby v. Railroad, 150 Mo. 137; May v. Crawford, 150 Mo. 504; Cathcart v. Railroad, 19 M'o. App. 113; Summerville v. Railroad, 29 Mo. App. 148; Peck v. Railroad, 31 Mo. App. 123; Smillie v. Dollar Store, 47 Mo. App. 402; Hays v. Railroad, 51 Mo.

— Now. E. O. Timmonds, Judge. (1) The failure to ship the goods on the 23d was not the proximate cause of the injury complained of. The flood itself supervened and stood as the independent proximate cause of such injury. The court should therefore have given defendant’s instructions numbered 2. Com. Co. v. Railway, 88 S. W. 117, 113 Mo. App. 544; Grier v. Railway, 108 M'o. App. 565; Herbert v. Wiggins F. Co., 107 Mo. App. 298; Fuller v. Railroad, 106 Mo.

— Horn,. William B. Teas dale, Judge. (1) Was plaintiff Mary F. Stone bound by the judgment of the circuit court dismissing the petition of her husband, B. D. Stone, for writ of mandamus, which judgment was rendered in obedience to the mandate and opinion of this court, in which it was adjudicated and determined that Stone was duly suspended from membership in defendant order, and had abandoned same and was not entitled to be restored to membership.

— Non,. Shannon G. Douglass, Judge. (1) The court erred in granting plaintiff a new trial because under the instructions numbered 1 and 2, given at request of respondent and of which he can not complain, the jury were the sole judges as to the injuries and the damages, and they have properly found that there were no damages sustained from the negligence of defendants.

— Eon. Andrew F. Evans, Judge. (1) The peremptory instructions ought to have been given. There is no evidence that the conductor carelessly and negligently gave the signal to start the car while the plaintiff was in the act of getting thereon, nor that the conductor knew or ought to have known the position of danger of the plaintiff.

<p>1. RAILROADS: Driver’s Negligence: Instruction Covering Case. In an action to recover for the negligent killing of a mule used in a team working on defendant’s railroad, where the driver’s negligence was pleaded, followed hy evidence tending to support the allegation, it is error to give an instruction for the plaintiff covering the whole case, and omitting the hypothesis of the driver’s negligence, especially where no other instruction presenting such hypothesis is given.</p> <p>2. -: -: - — : Argumentative: Descriptive. It Is suggested that an instruction submitting the whole case should be redrafted so as to omit argument, assumption of facts and descriptive adjectives not appearing in proof, and so as to1 include the definition of negligence and the hypothesis whether defendant’s negligence kiiled the mule; and a method of doctoring another instruction is also suggested.</p>

' - Error to Jackson Circuit Court. — Hon. Hermann Brumbaclc, Judge. The court erred in sustaining appellee’s (defendant in error herein) motion to affirm the judgment of the justice of the peace at the January Term, 1905, of the circuit court.

Shannon O. Douglass, Judge. (1) The special taxbill in question was a lien upon the lot from the date of its issue for the period of two years thereafter, unless it was paid in the, meantime. Section 18, article 9, Charter of Kansas City. (2) The lien continues until actual payment of the bill to the owner of it, or to the treasurer, as provided by the charter and until payment was made he had no power to release.

— Hon. William, B. Teasdale, Judge. (1) Tbe Bradley-Alderson Company, as tbe plaintiff knew, bad no control over tbe elevator, tbe machinery connected with it, tbe shaft or tbe safety gates, and was therefore, as the plaintiff knew, without poAver to alter, change or repair any of the parts thereof. Having no control, under tbe law, it was under no' duty to make repairs and alterations.

— -Now. Hermann Brutnbaok, Judge. (1) The court committed error in refusing the demurrers to the evidence, offered at the close of plaintiff’s evidence and at the close of all the evidence, because there was.no cause of action proven against the defendant. 2 Starkie on Slander, 661; 1 Jaggard on Torts, 484; Odgers on Libel and Slander, p.. 127; Caruth v. Richeson, 96 Mo. 186; Creceliue v. Bierman, 59 Mo.

— No». James N. Slover, Judge. (1) The court erred in giving plaintiff’s instruction one. This instruction erroneously directs a finding for plaintiff without requiring proof of any breach of the bond sued upon.

— Eon. Samuel Davis, Acting Judge. Submitted brief on merits. 1 (1) The'bill of exceptions fails to show any “protest or objection” on the part of the plaintiff’s attorneys to the use of the language of which they now complain, or that any such language was used. (2) The bill of exceptions does not show that the defendant’s instruction numbered 2, was objected to by plaintiff, or that he saved any exceptions thereto. He is too late now to complain.

— Hon. Henry 4Í-Ramey, Judge. (1) The court erred in refusing of its own motion to permit plaintiffs to show the value of a retaining wall on the east of these lots. This identical question was passed on and ruled to be proper by the Supreme Court-Especially is this true when a party to the suit does not object. Smith v. Kansas City, 128 Mo. 23.

— No». Andrew F. ; • Evans, Judge. (1) The court erred in refusing to give a peremptory instruction to find for the defendant. No duty on gripman to sound gong. McGauley v. Transit Co., 179 Mo. 591; Heinzle v. Railroad, 182 Mo. 559; Koenig v. Depot Co., 173 Mo. 725. No evidence that gripman failed to ring bell. Shaw v. Railroad, 104 Mo. 657; Sanders v. Electric Co., 147 Mo. 424; No evidence that failure to ring bell was the proximate cause of the injury.

— Hon. George F. Longan, Judge. (1) Scalding water escaping from the steam engine into deceased’s right ear accidentally, and resulting in his death eleven days later, constitutes a bodily injury caused solely and exclusively by external, violent and accidental means. The petition sufficiently alleges such injuries. Jamison v. Casualty Co., 104 Mo. App. 306; Dalzell v. Fidelity and Casualty Co., 176 Mo. 253; Loesch v. Casualty Co.,176 Mo. 654; 104 Mo.

— Nora. Hugh Dabbs, Judge. (1) There is nothing, in the record to justify the granting of a new trial on any of the grounds set forth in the motion for a new trial. The verdict is sustained by the decided weight of the evidence. There was no substantial evidence to support the plaintiff’s case, therefore, a verdict in his favor would have no legal basis upon which to rest.

— Hon. Hugh Dabbs, Judge. (1) Plaintiff’s instructions numbered 1 and 2 are erroneous in that they, without qualification, tell the jury to find for the plaintiff if -defendant had not furnished a reasonably safe appliance, when his duty is only to exercise ordinary care to do so. Knight v. Lead and Zinc Co., 91 Mo. 579; Bradley v. Railroad, 133 Mo. 307-308; Friel v. Railroad, 115 Mo'. 503; Bohn v. Railroad, 106 Mo. 429.

— Son. Sugh Dabbs,* Judge. (1) This was permitting the plaintiff to sue upon one cause of action and recover upon another, which is contrary to all of the decisions of this State. McCormack ■V. Transit Co., 154 'Mo. 191; Tussig v. Wind, 98 Mo. App. 129; Whipple y. Loan Assn., 55 Mo. App. 554. (2) The trial issues and the instructions must he framed with regard to the paper issues, and regardless of the answer the recovery must be had upon the petition.

— Now. Hugh Dabbs, Judge. The court had no authority to render judgment in excess of the damages laid in the petition. This, it seems to us, is elementary. State ex rel. v. Davidson, 87 Mo. 683; Smith v. Royse, 165 Mo. 654-658; Powell v. Horrell, 72 Mo. App. 406-412; M'oore v. Dixon, 50 Mo. 424; Maupin v. Triplett, 5 Mo. 423; Hayton v. Hope, 3 Mo. 53; Pope v. Salsman, 35 Mo. 362; Carr v. Edwards, 1 Mo. 137. Filed no briefs.

<p>1. SUBROGATION: Common Law: Civil Law: Chancery: Surety. The right of subrogation, originated in the civil law, and though unknown to the common law was in time adopted and applied in a modified form by the chancery courts of England. Under the civil law it gave to a surety paying his principal’s debt the “actions” of a creditor.</p> <p>2. -: -: Payment: Surety. Payment at common law whether made by principal or surety operates as an absolute extinguishment of the debt, and English courts of equity, recognizing this, evolved the idea of founding an equitable right, not upon the creditor’s “actions,” but upon the fact of payment, giving the surety everything the creditor had except the debt itself.</p> <p>3. -: -: -: -: American Rule. In the American states following the common law the paying surety has a cause of action from the implied promise of his principal to reimburse him, and by operation of law substituted to all the creditor’s liens and securities. [Cases considered.]</p> <p>4. -: -: Remedies: Election. The paying surety has his common-law remedy for debt against his principal and also his equitable action upon the paid security. The first depends for its existence upon the destruction of the debt, the other upon the debt being kept alive; and if he fails to pursue the former while available, it may be regarded as an election of the latter.</p> <p>5. -: Action: Limitation: Law: Equity. The right of the paying surety to an action at law and to an equitable action are not concurrent remedies for the enforcement of the same cause of action; and each have their own period of limitation and the equitable proceeding will not follow the law in applying the statute of limitation.</p> <p>6. -: -: Fraud. The paying creditor in pursuing his equitable remedy must do equity and can recover only so much as he had paid, and if he reaches for more a court of equity will stay his hand.</p> <p>7. -: Common Law: Action: Remedy: Missouri Doctrine. Missouri has adopted the American doctrine without any curtailment of the rights enjoyed by the creditor; and the surety may pursue his remedy at law under the statute or ground it upon his equitable ownership of the debt. [Cases reviewed.]</p> <p>Ellison, J., Dissenting.</p> <p>8. ——: Pleading: Demurrer: Limitation: Exception. The benefit of the Statute of Limitation may be had by demurrer where the face of the petition discloses the bar has been completed; and the exception relieving the plaintiff from a bar of the statute should be pleaded by him.</p> <p>9. -: Action: Limitation: Surety. The period of limitation begins to run against the surety from the day of his payment, since on that day an action accrues to him; and this applies in proceedings in equity as well as actions at law. [Missouri cases reviewed and Brewing Company v. Jordan, 110 Mo. App. 286, criticised.]</p> <p>10. -: -: Surety: Limitation. The surety’s right of action is the foundation of his recovery and his right to subrogation is a mere aid to his right of action, which is not based on any actual contract, hut on an implied promise; and the statute only makes it effective when asserted within the five-year limitation; and this is true whether the right of the surety arises from an implied contract or from natural justice and equity.</p> <p>11. -: -: Limitations: Concurrent Jurisdiction. In cases of this character the right to the action and its ultimate object are the same whether asserted in law or equity and courts of equity and courts of law have concurrent jurisdiction and in such cases equity will no more disregard the Statute of Limitations than would a court oí law.</p> <p>12. ACT: Intention to Be Subrogated. If the surety, who pays his principal’s debt, does no act before his claim is barred, manifesting an intention to be substituted to the creditor’s rights, , equity will not subrogate him.</p> <p>13. ISSUES ALIUNDE PAYMENT OF DEBT. There are many issues aside from the payment of the debt by the surety which it may be necessary for him to meet, such as the amount paid, whether it was necessary that he pay it, equities between the parties, etc., and it is necessary that these be met within the period of limitation.</p> <p>14. -: -. So a surety on payment of the debt does not ipso facto become subrogated to the rights of the creditor.</p> <p>15. EQUITY: Implied Promise: Limitation. A surety’s right of action, whether considered as arising from an implied promise, or from principles of natural justice, must be asserted within the period of limitation.</p> <p>16. LIENS: Preferred Claims: Limitations. In cases where possession and control of the evidence of indebtedness paid by the surety is necessary for his reimbursement, as if it represents a lien, or a preferred claim and the like, he will be considered the assignee in equity for the purpose of asserting such right. But equity will not make such assignment when such necessity does not exist merely to avoid the Statute of Limitations.</p> <p>17. -: -: Assignment of Judgment: Limitation. Whether the surety upon payment takes an assignment of the judgment can make no difference in the period of limitation, since the right of action comes by the operation of law, and the same statute of limitation applies.</p> <p>18. -: -: -: Evidence. Though the surety has an assignment it does not affect the character of his evidence, and he must prove aliunde his suretyship and his payment, etc., as he would without the assignment.</p> <p>19. -: -: Limitation: Fraud. The fact that the principal debtor may have fraudulently disposed of his property without the knowledge of the surety is not such fraud as to extend the time for bringing the action, since it does not tend to bring his action within the limitation prescribed by the statute.</p> <p>20. CERTIFIED, SUPREME COURT. Deeming the decision in this cause contrary to the decisions of the Supreme Court in Singleton v. Townsend, 45 Mo. 379; Burton v. Rutherford, 49 Mo. 255; and Bushong v. Taylor, 82 Mo. 671, and also contrary to the decisions of the St Louis Court of Appeals in Bauer v. Gray, 18 Mo. App. 164, and Williams v. Gerber, 75 Mo. App. 18, the cause is certified to Supreme Court.</p>

— Now. Hugh Dabbs,. Judge. (1) It was properly tbe duty of tbe workmen to watcb tbe bars, and note tbe effect of use upon them, and when one needed fixing to send it out for that purpose. Tbe master was not bound to stand by and constantly observe tbe effect of use upon these wooden plugs. 2 Labatt, Master and Servant (1 Ed.), sec. 621, p. 1816j Herbert y. Ferry Co., 107 Mo. App. 287; Jackson v. Mining Co., 106 Mo.

— Hon. Henry G. Timmonds', Judge. ■ . (1) Under the law governing cities of the third class the taxbills are assignable and collectible by the holder thereof and are prima facie evidence of the regularity of the proceedings, of the validity of the taxbills, of the doing of the work, and the validity of the charge against the property therein described to the charge stated in the taxhill. A general denial constitutes no answer.

— No». George F. Long an, Judge. (1) The only contention of the respondent is that notice of appeal was not sufficient or is in fact no notice at all, but we contend that said notice wag amply full and sufficient. (2) And it conformed to the following requisites: (a) It was in writing and described the case fully and stated that judgment was rendered against appellant. R. S. 1899, sec. 4074; Tiffin y. Millington, 3 Mo. 418; Fagan y. Separator Co., 92 Mo-. App. 236; Celiav.

— Eon. Samuel Davis, Judge. - (1) Tbe respondent county court had no jurisdiction to hear and consider said petition, hence its judgment was and is absolutely void, and, if void, is no judgment at all. R. S. 1899, sec. 2997. (2) The action of the respondents was without jurisdiction of the subject-matter and such being the case, they are not protected, but are liable to a civil action, even for damages. 12 Amer. and Eng. Ency. of Law (1 Ed.), pages 32 to 38 and notes.

— No». Hugh Dabbs, Judge. (1) An indemnity contract is an agreement between two or more parties whereby one agrees to indemnify and save harmless the other from loss or damage in connection with some particular transaction, or to protect him against liability to or the claim of a third person. 16 Am. and Eng. Ency. of Law (2 Ed.), 168.

— No». Howard Gray, Judge. (1) Tbe affidavit in attachment in B. H. and Sarah Ross v. Myton and Ethel S. Mining Company fails, entirely, to recite any grounds of attachment as required by section 190, Kansas Code (Dassler’s Statutes of Kansas, 1901, sec. 4624), and therefore the seizure and subsequent holding of the property of the defendants was illegal and void. Hanley v. Headley, 10 Kans. 88.

— Eon. Eenry G. Timmonds, Judge. (1) There was no evidence either on part of plaintiffs or defendants which could, by any hook or crook, be construed that defendant did become aware of the impending and approaching flood in time to have removed the goods to a place of safety. (2) We think not, and that the giving of these instructions was error.

<p>1. CONTRACTS: Joint Interests: Parties. At common law if there was a non-joinder of the parties plaintiff in an action, the consequences were serious, since the defendant might demur or could plead the non-joinder in abatement or take advantage thereof under the general issue or move in arrest, or take a writ of error; and this rule prevails in Missouri, since there can be no recovery by one of several obligees on a joint cause of action had in common with others.</p> <p>2. TORTS: Non-Joinder: Parties: Pleading. In an action for trespass to real estate by a husband and wife, the petition averred that the “plaintiffs are the owners of the property.” Held, • proof of a several interest was as competent as that of a joint interest; and while several owners of divisible interests are ordinarily required to join in an action for damages resulting from a joint injury, the consequences of non-joinder even at common law are never serious, since the defendant waives the matter by failing to raise the point in abatement, and this rule applies to tenants in common to recover damages for joint injury to land owned by them. Actions in replevin and conversion distinguished.</p> <p>3. TRESPASS: Husband and Wife: Departure: Parties: Waiver. A husband and wife brought an action for injury to their real estate averring that they were the owners thereof. Subsequently the husband was dismissed without objection by the defendant. Held, even under the hypothesis that the husband was a part owner, such as a tenant in common, the proceeding with the action on behalf of the wife was no departure from the cause of action pleaded, and the defendant’s failure to object to the dismissal waived that matter and deprived him of the right to take advantage of the defect in parties plaintiff.</p> <p>4. -: -: Joint Right: No interest. The above rule assumes that the husband was a part owner of the land and not necessarily a part owner of a joint right or that he had no interest in the cause of action.</p>

<p>Error to Howard Circuit Court. — lion. John A. Hochad<m, Judge.</p>

— Hon. Cluirles A. Denton, Judge. (1) The verdict and judgment is against the law and the evidence and ridiculously against the weight of the evidence.

— Hon. James H. Slover, Judge. (.1) Defendant’s demurrer to the evidence should have been sustained for the reasons: First — Under the Contract of shipment, entered into between plaintiff and defendant, plaintiff was not entitled to recover; Second i — No negligence on the part of the defendant was shoAvn; and, Third — Plaintiff did not suffer any damages on account of shrinkage or decline of market price of the hogs. (2) Defendant can limit its common law liability.

— Eon, George W. Wcmnemalcer, Judge. (1) Officers of the court and witnesses are not entitled to execution to collect their fees, they can only have a fee bill, and execution is the remedy belonging to the parties to the suit alone. Beedle v. Mead, 81 Mo. 297; Hoover v. Railway, 115 Mo. 77; Cranor v. School Dist., 151 Mo. 127; Donham v. Hoover, 131 Mo. 522; ■ Aurora ex rel. v. Lindsey, 146 Mo. 522.

•Appeal from Jackson Circnit Court. — Now. Andrew F. Evans, Judge. (1) Improper evidence was admitted on behalf of plaintiff. (2) Proper evidence offered by defendants was excluded by the court. (3) The demurrer offered by appellant at the close of respondent’s testimony should have been sustained, and the appellant, under the pleadings and upon the record, was entitled to a judgment. (4) Improper and illegal instructions were given bn behalf of the plaintiff.

— Hon. Ghesley-A. Mosmam, Judge. (1) The demurrer offered by the defendant at the close of the case and after all the evidence was introducd, should have been sustained. This case clearly comes within the ruling of the Supreme Court in reference to the liability of municipalities in Missouri, in what is known as “snow and ice cases,” where the ground is generally covered with snow and ice. Reedy v. Brewing Association, 161 Mo. 523.

— Hon. George W. WannemaMr, Judge. (1) There is no evidence to sustain the verdict in this case. The rule in such cases is, that there must have been a concealment of the weapon, and this was not proved by the State beyond a reasonable doubt. 2 Wharton’s Criminal Law, sec. 1557; Ridentur v. State, 65 Ind. 411; Smith v. State, 69 Ind. 140; State v. Hale, 70-Mo. App. 145; State v.'Ballard, 104 Mo. 684.

— Hon. William O. Ellison, Judge. (1) The facts should have been submitted to the jury as evidence of notice and the court erred in taking the question from the jury by plaintiff’s instruction numbered 8. Whaley v. Neill, 44 Mo. App. 323; Hahn v. Bradley, 92 Mo. App. 399; Bank v. Hammond, 104 Mo. App. 409. To establish bad faith it was not necessary to bring home to plaintiff specific knowledge of the infirmities of the note. Insurance Co. v. Fillingham, 85 Mo. App. 542.

— Hon. Henry M. Ramey, Judge. (1) The court erred in refusing to- give the demurrer to the evidence asked by defendant. (2) The court erred in giving plaintiff’s instruction numbered 2. (1) The contract admits of no such construction as given it by defendant. (2) Instruction numbered 2 given for plaintiff is not fully and fairly stated in defendant’s brief.

Appealed from Adair Circuit Court. — Eon. Nat. M. Shelton, Judge. (1) The defendant contends the instruction is erroneous, for the reason that there were two defenses interposed and proven on behalf of the defendant. But we •contend earnestly that such instruction eliminates the •second defense, -a defense perfect and complete in itself.

<p>Appeal from Sullivan Circuit Court, — Hon. John P. Butler, Judge.</p> <p>(1) The contract being made by reason of the reduced rate given plaintiffs is valid. Rogan v. Railway, 51 Mo. App. 665; Wyrick v. Railway, 74 Mo. App. 406; Bowring v. Railway, 90 Mo. App. 824; McFadden v. Railway, 92 Mo. 343; Live Stock Oo. v. Railway, 100 Mo. App. 688. (2) The giving of the notice required by the contract is a prerequisite to the right of recovery. McBeath v. Railway, 20 Mo. App. 445; Leonard v. Railway, 54 Mo. App. 302; Commission Co. v. Railway, 80 M'o. App. 164; Stock Co. v. Railway, supra. And it was error to refuse defendant’s instruction numbered 1, in the nature of a demurrer to the evidence. (3) No notice was given to any one until after all the cattle (hut two) had been removed from Reger. This was in direct violation of the contract which provided that notice must be given before the stock was removed. (4) There was no proof that the general claim agent was a general officer of the company; and the burden of proving that fact under the pleadings rested upon the plaintiffs. . Sec. 1038, R. S. 1899. (5) The action of the court in permitting plaintiff’s attorneys to question the plaintiff in regard to the compromise was highly prejudicial to the defendant. It was error in the court to permit it.</p> <p>(1) There is no evidence in this case, which shows that the rate paid by plaintiffs for transportation of the car load of cattle in question was a special or reduced rate. Kellerman v. Railroad, 136 Mo. 178; Levering v. Trans. Co., 42 Mo. 88; Richardson v. Railroad, 149 Mo. 311; Conover v. Express Co., 40 Mo. App. 31; Rogan v. Railroad, 57 Mo. App. 550; Vaughn v. Railroad, 78 Mo. App. 639; Rice v. Railroad, 106 Mo. App. 371. (2) The burden was on defendant to show this. A mere recital in the contract that it was a reduced rate is not sufficient. McFadden v.' Railroad, 92 Mo. 343; Duvenick v. Railway, 57 Mo. App. 555. (3) This reduced rate, existing only in the mind of defendant company, and unknown to plaintiffs and not stated in the contract, cannot he interposed as a defense in this case. Mfg. Co. v. Railway, 101 Mo. App. 452; Duvenick v. Railroad, supra. (4) The giving of notice to the defendant railroad company in cases like the one at bar is to give the carrier an opportunity to investigate the loss so that it might know whether the claim was just or unjust. Richardson v. Railroad, 62 Mo. App. 1. (5) Notice was given in the letter to general claim agent Moore that the rest of the cattle were -damaged. Any talk as to accepting pay for the two dead cattle and waiving damages as to rest, was on condition that the defendant would settle at once — it was only by the way of compromise. (6) Notice to the officers of a railroad corporation who have charge of the general claim department, and to the live stock agent sent out by the company, would certainly be notice to the railroad company.</p>

— Eon, Archelaus M. Woodson3 Judge. (1) Under a general denial the defending party is always at liberty to disprove and overthrow the contract asserted against him by proving that it was materially different from the one so asserted. Wilkerson v. Parnham, 82 Mo. 679. (2) “The petition charges a joint contract and the plaintiff must recover upon that theory or it cannot recover at all.

— No». Alexander N. 'Waller, Judge. (1) The policy was an old line, whole life, level premium contract, and as such was subject to the non-forfeiture laws of the State of Missouri, as contained in section 5856, R. S. 1889. Jacobs v. Life Assn., 146 Mo. 538; Elliott v. Life Assn., 163 Mo. 153; Folkens v. Ins. Co., 98 Mo. App. 480; Moore v. Ins. Co., 112 Mo. App. 696. (2) The provisions of sec. 7856, R. S. 1889, now sec. 7897, R. S. 1899, were a part of the contract. Ins.

— How. Alexander H. Waller, Judge. (1) The demurrer to the evidence should have been sustained. R. S. 1899, Sec. 798; Phleger v. Weltner, 21 Mo. App. 580; Waldheir v. Railway, 71 Mo. 514; Rawlings v. Railway, 97 Mo. App. 519. (2) The trial court should have instructed the jury to return a verdict in the defendant’s favor at the close of the entire case. Authorities cited under point 1, supra. (3) This was not a proper case for the award of exemplary or punitive damages.

— Hon. Joshua W. Alexander, Judge. ■ (1) The petition fails to state facts constitutive of a cause of action. Plaintiff was not prevented carrying out Ms contract by tbe Act of God, tbe law or tbe defendant. 1 Am. and Eng. Ency. of Law (2 Ed.), 588; Haynes v. Baptist Cburcb, 88 M'o. 290. (2) Tbe finding and judgment are against tbe' law and evidence. Wrigbt v. Fullerton, 60 Mo. App. 451; Harrison v. Railroad, 74 Mo. 364; Jones v. Water Works Co., 65 Mo.

Louis City Circuit Court. — Eon. Moses N. Bale, Judge. (1) An officer of such a corporation has the absolute right to resign. Having that absolute right, his motive or inducement to exercise that right cannot be a breach of trust, since he is not bound to continue in office. Briggs v. Spaulding, 141 U. S. 132; Fearing v. Glenn, 73 Fed. 116.

<p>Original Proceeding, Prohibition.</p>

<p>Appeal from Webster Circuit Court. — No». Argus Cox, Judge.</p>

<p>REPLEVIN: Trespassing Animals. In an action of replevin for possession of a cow taken up and Reid by the defendant for breaking into defendant’s field, the evidence is examined and held to sustain a finding and judgment of the trial court for the defendant.</p>

Louis County Circuit Court. — No». John W. McElhinney, Judge. (1) The communication to Mr. Henry was privileged, and therefore the judgment ought to be reversed. Kersting v. White, 107 Mo. App. 265, 80 S. W. 730. (2) What is shown by uncontradicted and unimpeached testimony is now presumed in this State to be true, and may be so assumed in an instruction.

Original Proceeding by Habeas Corpus. (1) A statute should be so construed that effect will be given to all of its provisions. Bank v. Ripley, 161 Mo. 126, 61 S. W. 587. (2) When a literal construction of any section would conflict with any other section of a statute or with the scope and manifest intent of the act, it is the duty of the court, if possible, to harmonize the various provisions and, if necessary, to depart from a literal construction of one or more sections.

<p>Original Proceeding for Writ of Prohibition.</p>

— Hon. James T. Neville, Judge. (1) Under the statute appellant, as surviving husband, has the first right to the appointment as administrator, he having made application within thirty days of the death of deceased. The antenuptial contract does not refer to or contemplate the matter of administration upon the estate of Mrs. Evans.

<p>Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.</p> <p>(1) (a) Where the act done is authorized by law, it cannot properly be held a nuisance at all. Randle y. Railroad, 65 Mo. 325; Geddis v. Proprietors, 3 App. Cas. (L. R.) 455; Parrott y. Railroad, 10 Ohio St. 624; Yason v. Railroad, 42 Ga. 631; Lewis v. Behan, 28 La. Ann. 130. (b) Where legal authority is shown for the exact act done, that act cannot be enjoined, even in cases where damages or other remedy at law might be available. Dolan v. Railway (Wis.), 95 N. W. 385; Railey v. Railroad, 80 S. W. 95. (2) The municipal assembly of St. Louis has power “to declare” nuisances. Charter, St. Louis, art. 3, sec. 26, subd. 6. (3) The undisputed evidence proved that the odors given forth by the asphaltum plant of defendant were “unavoidable and necessary to the work” which defendant was performing for the city of St. Louis under special ordinance on the subject, recited in the answer. The particular acts of which plaintiff complains were, therefore, authorized by law, and not nuisances under the ordinance (sec. 616) quoted in the answer and the city charter aforesaid. Municipal Code (1901), sec. 616, p. 554; Gates v. Railway, 111 M’o. 28, 19 S. W. 957; Shelter v. Lighting Co. (1895), 2 Ch. ■388; Railroad v. Mollandim, 4 Colo. 154; Dwenger v. Railroad, 98 Ind. 153; Ryan v. Copes, 11 Rich. L. 217. (4) The trial court erred in striking out part of the answer which stated facts constituting a complete defense by showing that the odors complained of were authorized by ordinance and were hence no nuisance. The very acts of defendant were sanctioned by law as a “necessary and unavoidable” incident to the public work of street improvement, required by the ordinances for said improvement. Crowley v. Fireworks Co., 88 N. Y. Supp. 483, 95 App. Div. 13; High, Injunctions (2 Ed.), sec. 767; Murtha v. Lovewell, 166 Mass. 391, 55 Am. St. 410. (5) The alleged nuisance is charged to be a “public nuisance.” The evidence shows that it affects a large body of people in that part of the city, and that plaintiff is not affected otherwise than are all the population in that quarter of St. Louis. There is no such special- or peculiar damage to plaintiff shown as warrants an injunction. Rude v. St. Louis, 93 Mo. 408, 6 S. W. 257; “Van DeNere v. Kansas City, 107 Mo. 83, 17 S. W. 695.</p> <p>(1) When the thing complained of works harm or annoyance to others, it is a nuisance, and it is immaterial whether the harm or annoyance flows from the manner in which the thing is done or is the result of the location of the thing. Wood on Nuisances, sec. 75, p. 1273; Railroad v. Church, 108 U. S. 317; Fert. Co. y. Malone, 73 Md. 268; People v. Lead Works, 82 Mich. 466; Cravens v. Rodenhaus, 21 Atl. 774; State v. Boll, 59 Mo. App. 157; State ex rel. v. Board of Health, 16 Mo. App. 8; Kirchgraber v. Lloyd, 59 M'o. App. 59; Bideman v. Railroad, 59 Mo. App. 157; Rex v. White, 1 Burr. 333; Smelt. Co. v. Tipping, 11 H. L. 642; Fish v. Dodge, 4 Denio 311; Catlin v. Valatine, 9 Paige, 575; Campbell v. Seaman, 63 N. Y. 568; Cogswell v. Railroad, 103 N. Y. 10; Wood on Nuisances, sec. 497; Hegg v. Licht, 80 N. Y. 579; Gas Co. v. Murphy, 39 Pa. 255; Cleveland v. Gas Light Co-., 20 N. J. Eq. 201; Gas Light Co. v. Thompson, 39 111. 598; Wood on Nuisances (2 Ed.), sec. 583; Hay v. Cohoes Co., 2 N. Y. 159; McKeon v. See, 51 N. Y. 300; Ross v. Button, 19 N. J. Eq. 294; Fishburn v. Oil Co., 66 Minn. 277; Berger v. Gas Light Co., 60 Minn. 296. (2) The city of St. Louis, by ordinances and contracts, cannot empower the defendant to create a nuisance, so as to exempt it from abatement by-injunction on the part of a private individual. Railroad v. Angel, 51 N. J. Eq. 10; Speir v. Brooklyn, 18 N. Y. Supp. 170; Cohen v. New York, 113 N. Y. 532; Danaher v. Brooklyn, 119 N. Y. 255; Whitfleld v. Carrollton, 50 Mo. App. 99; Crittenden v. Wilson, 5 Cow. 165; Brown v. Railroad, 12 N. Y. 486; Sinnickson v. Johnson, 17 N. J. L. 151; Railroad v. Church, 108 U. S. 317; Edmonson v. Moberly, 98 Mo. 523, 11 S. W. 990; Payne v. Kansas City, 112 Mo. 6, 20 S. W. 322; Turpey v. Independence, 24 M'o. App. 288; Pearce v. Gibson Co. (Tenn.), 64 S. W. 33; Smith v. Sedalia, 152 Mo. 283, 53 S. W. 907; Mercer County v. Harrodsburg (Ky.), 66 S. W. 10. (3) The legislative intent to license or authorize the perpetration of a nuisance is not to be inferred unless such intent is expressed in the statute with irressistable clearness and certainty. U. S. v. Fisher, 6 U. S. 358; Railway v. Church, 108 U. S. 319; Bohan v. Gas Light Co., 122 N. Y. 18; Cogswell v. Railway,. 103 N. Y. 10; Hill v. Asylum, Diet., L. R., 4 Q. Bd. 433, 6 App. Cas. 193; Gas Co. v. Murphy, 39 Pa. 255; Eames v. Worsted Co-., 11 Met. 570; Commonwealth v. Kidder, 107 Mass. 188.</p>

Louis City Circuit Court. — Son. Moses N. Sale, Judge. Any debt, whether it has been reduced to judgment or not, which has not been recognized by the debtor for twenty years, Avhere no attempt has been made to enforce its collection, is presumed by the common law to have been paid or satisfied, even though the Statute of Limitations has not barred an action thereon, by reason of the absence or non-residence of the defendant. Taylor v. Megorgee, 2 Pa.

— No». John T. Moore, Judge. The court erred in refusing to give instruction numbered 4, as asked by defendant, for the reason that the evidence on part of the State as well as the defense, show that at the time the defendant used the language as testified to by bim, he gave the author, and thereby afforded a cause of action against him. This was, we think, a justification on part of defendant, which is so held in cases of verbal slander, in the case of Hesse v. Gansz, 90 Mo.

Louis City Circuit Court. — Eon. O’Neill Ryan, Judge. Statement. — -In November, 1903, tbe defendant operated street cars over Grand avenue and Natural Bridge road, in the city of St. Louis. Grand avenue runs north and south and crosses Natural Bridge road (running east and west) at the southeast comer of the Pair Grounds.

— Now. David N. Eby,. Judge. (1) Appellant’s sole contention and only point made by him on which he relies for a reversal, is that there was no specific warranty in the sale of the jack. He cites no authority whatever in support of his contention. It has been repeatedly held that the word “warrant” need not be used.

Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge. The court erred in overruling defendant’s demurrer •offered at the close of plaintiff’s evidence. Where the facts show that the plaintiff moved from behind one car -directly on to parallel tracks, without stopping to look, and was struck by a car coming from the opposite direction, he is guilty of such contributory negligence in failing to stop, look and listen as will bar him from all recovery.

Louis City Circuit Court. — Eon Walter B. Douglas, Judge. It is the settled law in this State that one who takes out a policy of insurance on the life of another must have some pecuniary interest in the continuance of the life insured. Ins. Co. v. Rosenheim, 56 Mo. App. 33; Gands v. Life Ins. Co., 50 M'o. App. 44.

Louis City Circuit Court. — No». Daniel G. Taylor, Judge. (1) The court erred in giving plaintiff’s instruction No. 2. The instruction is erroneous in assuming that the dog was on the track. Comer v. Taylor, 82 Mo. 341; Stone v. Hunt, 94 M'o. 475, 7 S. W. 431; Railway v. Stock Yards, 120 Mo. 541, 25 S. W. 399; Blaslifield, Instructions to Juries, sec. 29. (2) The court erred in giving plaintiff’s instruction No. 3. Fisher v. Lead.

Louis City Circuit Court. — Eon. Wm. M. Kinsey, Judge. (1) From the terms in which the first and second instructions, given on behalf of plaintiff, were drawn, the jury might naturally infer that any agreement or understanding governing the liability of the appellant must have been had directly between her and the plaintiff; and that such an agreement or understanding communicated to the parties through a third person, would be of no force or effect.

Louis County Circuit Court.— Horn John W. MoHlhinney, Judge.