Volume 118 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. The fifst instruction given for respondents, in that it authorized the jury to find for them on their pleadings in evidence without any consideration of the pleadings and evidence of appellants, was error; it purported to cover the whole case, hut entirely left out of consideration appellants’ defense. - It particularly left out of consideration the defense of appellant, Mercantile Adjuster, which was not a party to…

— Hon. Henry C. Pepper, Judge. (1) In order to bind a person and his property by a judgment, it must appear that he was a party to the suit or proceeding, legally brought into court and given a hearing. Newton v. Newton, 32 Mo. App. 162; Duggs v. Sfcumpe, 73 Mo. 513. “A prosecuting witness is no party to the prosecution; the State and the defendant are the only parties to the record.” State v. Foyce, 53 Mo. 338.

— Now. Henry G. Riley, Judge. (1) All the parties were in court appearing in person as well as by their attorneys, and the failure to answer on or before the third day of the trial terms of the court, or at least before he case was referred and if not then, before the referee, under the statute were considered as admitting the account to be dne as set forth in or annexed to the petition, and judgment should have been rendered against the defendant for the amount thereof.

<p>Appeal from St. Louis City Circuit Court. — No». Matt. G-. Reynolds, Judge.</p> <p>The court erred in giving to the jury of his own motion for both plaintiff and defendant instruction marked C-2. Yegely v. Robinson, 20 Mo. App. 199; Mathews, Admr., v. Tohener, 39 Mo. 115; Buck v. Lewis, 46 M'o. App. 227; Livermore v. Eddy, 33 Mo. 547; Duffy v. Day, 42 Mo. App. 638; Witte v. Quin, 38 Mo. App. 681; Harrison v. Russell, 75 Mo. App. 113; Schnisler v. Ames, 16 Ala. 73; Mackellar v. Sigler, 47 How. Pr. 20; Pitch v. Sargeant, 1 Ohio (Han.) 352; Randall v. Rich, 11 Mass. 493; Carson v. Arvants, 10 Col. App. 388; Lafferty v. Hawes, 63 Minn. 13;'Bird v. Defonville, 2 C. & K. 415; Rice v. Dudley, 65 Ala. 68; Calhoun v. Achison, 4 Bush (Ky.) 261; Day v. Watson, 8 Mich. 535; Shahan v. Hertzberg, 73 Ala. 59; Colville v. Miles, 45 Hun 236; Kneeland v. Schmidt, 78 Wis. 345; Belamy v. Smith, 4 Houst. (Del.) 113; Tiley v. Moyers, 43 Pa. St. 404; Day v. Watson, 8 Mich. 535; Briggs v. Thompson, 9 Pa. St. 338; Hegeman v. McArthur, 1 E. D. Smith (N. Y.) 141; Graham v. Anderson, 3 Harr. Del. 364.</p> <p>(1) Respondent did not waive his right to a written notice of the termination of the tenancy in question by appellant. (2) Respondent did not acquiesce in appellant’s abandonment of the premises in question, nor was there, under the circumstances of this case, a constructive eviction of appellant. Buck v. Lewis, 46 Mo. App. 231 and 232; Huling v. Roll, 43 Mo. App. 243.</p>

— No». Henry C. Riley, Judge. (1) There being no evidence that the entries in the ledgers and daybooks offered in evidence by plaintiff were contemporaneous with the transactions therein, the same was incompetent and the objections of the appellant should have been sustained. Martin v. Estate of Nichols, 54 Mo. App. 594; Collins Bros. Drug Co. y. Grady, 57 Mo.

Butler Circuit Court. — No». J. G. Shepard, Judge. The only question presented in this cause is the action of the trial court in sustaining defendants’ demurrer and the dismissing of plaintiff’s bill. No principle .of law is better settled than that by a demurrer to a petition, all material facts alleged therein for tbe purpose of tbe demurrer are admitted as being true.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The covenant or ageement in the lease to pay the taxes assessed against the demised property that were due and payable during the year 1904, must be construed as one to pay the taxes as part of the rent. Knight v. Orchard, 92 Mo. App. 471; Elliott v. Gantt, 64 Mo. App. 252; McManus v. Shoe & Clothing Co., 60 Mo. App. 218.

— No». Leigh B. Woodside, Judge. (1) There is a fatal variance between the note described in the information and the note proven in testimony both as to date and amount. The court erred in admitting testimony as to the $33.36 note. The State should have been confined to prove the note pleaded and described in the information.

Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge. (1) Wliere a person contracts with another to perform a certain work the contractor cannot let the work out to another and escape liability, because the person to whom it is let stands in the position of an independent contractor.

Louis County Circuit Court. — Ron. J. W. McElhinney, Judge. The court erred, in giving instruction 17 at the instance of plaintiff. Said instruction is as follows, to-wit: “For any impairment of health and strength and physical disability to labor and earn money by her separate labor which the jury may believe from evidence the plaintiff has sustained by reason of said injuries and directly caused thereby.” Kroner v. St. Louis Transit Co., 107 Mo.

Louis City Circuit Court. — Son. O’Neill Ryan, Judge. (1) The court erred in giving plaintiff’s instruction 7, because: (a) Said instruction required only that the barge be in a seaworthy condition “upon the date of leaving the port at St. Louis” (March 14, 1903), whereas, it was intended, under the policy, that the risk •should begin at noon, March 13, 1903; and it is fundamental that even in the absence of an express stipulation in the policy requiring it, the vessel…

Louis County Circuit Court. — No». J. W. McElhinney, Judge. (1) The court erred in allowing evidence to be admitted over the objection of defendant-, in that the petition did not state a cause of action. Defendant owed plaintiff no duty. Sweany v. Old Colony, 87 Am. Dec. 644; Railway v. Nugent-, 86 Md. 349; Warsaw v. Dunlap, 112 Ind. 576; 3. Kin. on Torts, sec. 246; Curtain v. Sommosett, 140 Pa. St. 70.

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. The petition states a single cause of action, and withal, a good cause of action against defendant.

<p>Appeal from St. Louis City Circuit Court. — Now. O’Neill Ryan, Judge.</p>

— Hon. W. N. Evans, Judge. (1) The court erred in permitting the defendant to testify as to the terms and conditions of the, contract as the whole matter was merged in the written contract. Gooch v. O’Conner, 8 Mo. 391; State ex rel. v. Hashaw, 98 Mo. 358; Taylor v. Fox, 16 Mo. App. 527.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Neither the petition nor amended petition stated a cause of action such as gave jurisdiction to the court, either to appoint a receiver or to take charge of the fund paid in by the defendant catering company. Miller Bros. v. Perkins, 154 Mo. 638, 55 S. W. 874; State ex rel. v. Ross, 122 Mo. 435, 25 S. W. 947; Rees v. Andrews, 169 Mo. 192, 69 S. W. 4; Beach on Receivers, sec. 106; Smith on Receivers, sec. 4.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) The court erred in refusing the instruction offered by the defendant at the close of the whole case, (a) The failure of defendant to block the guard rail was not negligence, (b) The death of McManus was caused by his own negligence, (c) The deceased assumed the risk. (2) It is not negligence to leave guard rails unblocked. O’Neil r. Railroad, 92 N. W. 731; Southern Pac.

Louis City Circuit Court.' — Hon. W conoide Hough, Judge. (1) The court erred in instructing the jury in behalf of the defendant, Westlake Construction Company, at the close of plaintiff’s case, that under the pleadings and the evidence the plaintiff could not recover.

<p>Appeal from Wayne Circuit Court. — Eon. Frank Dea-ring, Judge.</p>

— Eon. Damd E. Eby, Judge. The court should have given defendant’s instruction in the nature of a demurrer offered at the close of plaintiff’s case. The respondent had wholly failed to sustain the issues made by the pleadings filed in this case. The account filed shows no contractual liability and on the account stated recovery could only be had on the quantum meruit theory.

Louis City Circuit Court. — Hon. Robt. M. Foster, Judge. Defendant’s motion to vacate the judgment, should have been sustained. The recitals of the judgment were not in accordance with the facts, as shown by the record. Again, the court had no right under the facts of record to enter any judgment on plaintiff’s cause of action.

Louis City Circuit Court.— Hon. Moses N. Sale, Judge. (1) The contract between plaintiff and defendant is mutual and binding. Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 137, 69 S. W. 384. (2) Even though the promise of defendant was Avithout consideration originally, still the performance of the condition by plaintiff relates back to the promise of defendant and clothes it Avith a valid consideration. 7 Am. and Eng.

— Hon. James T. Neville, Judge. (1) The “guarantee contract” sued on must be construed as a whole. Styling the obligors “guarantors” or “sureties” does not of itself make them such. The nature of their liability and obligation, and the rights of appellant, must be ascertained from the instrument read as a whole. 2 Pars. Cont. (7 Ed.), 633; (6 Ed.), 501; 17 Am. and Eng. Ency.

<p>Appeai from St. Louis City Circuit Court. — Hon. James JR. Kinealy, Judge.</p>

<p>Appeal from Pike Circuit Court. — Eon. David E. Ely, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Eon. O’Neill By an, Judge.</p>

— Eon. E. W. Johnson, Judge. (I) It is not negligence as a matter of law to pass from one coach to another, and a passenger’s motive in so doing is not material. McAffe v. Huidekoper, 9 App. D. C. 36, 34 L. R. A. 720; Marquette v. Railroad, 33 Iowa 562; Holland v. Railroad, 105 Mo. App. 117, 79 S. W. 508.

Louis City Circuit Court. — -Now. Jesse A. McDonald, Judge. The court erred in overruling tbe demurrer to the evidence for the following reasons: (a) There was no negligence on the part of the defendant shown, although two specific acts of negligence had been allegd. The evidence, therefore, wholly failed to support the allegations of the petition, and, since no negligence was shown, the demurrer to the evidence should have been sustained.

<p>X. ATTACHMENT: Interpleader. This case was before the court on two former appeals and reported in 101 Mo. App. 602, and 107 Mo. App. 192. On the last trial several errors pointed out on the former appeals were repeated.</p> <p>2.--: -: Burden of Proof. On the trial of the issues between a plaintiff in attachment and an interpleader for the property attached, if the property was in possession of the interpleader, the burden of proof was upon the plaintiff, and an instruction placing the burden upon the interpleader without qualification was erroneous.</p>

— Hon. John M. Barker, Special Judge. (1) Since section 214, Revised Statutes 1899, was amended in .1899 an heir or creditor must show that the allowance sought to he set aside, was improperly obtained. There is not a syllable of evidence here that this allowance was improperly obtained but only that the administrator, after investigation, made no defense but did require claimant to prove her demand to the court, as appears by the circuit court records.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. Statement. — The suit is by the wife against the husband for divorce from the bonds of matrimony. The charge in the petition is that the husband offered to the wife such indignities as to render her condition intolerable. There was personal service had on defendant who is a resident of the city of St. Louis. No answer was filed and no defense made by him.

Louis City Circuit Court. — No». Dem-id D. Fisher, Judge. (1) The statement which plaintiff filed in the justice’s court states no cause of action. It is too indefinite, and not such as the law requires. And the circuit court committed error in overrruling defendant’s objection to the admission of any evidence on the part of the plaintiff. And the court also erred in not sustaining defendant’s motion for a new trial and in arrest of judgment.

Louis City Circuit Court. — No». Daniel G. Taylor, Judge. (1) (a) Tbe demurrers to tbe evidence should bave been sustained, because there was no- evidence of tbe appointment or qualification of a next friend to maintain the suit, or that tbe suit wa,s prosecuted by a next friend. Porter v. Railroad, 60 MO'. 160; Casler v. Chase, 160 Mo. 418, 60 S. W. 1040; Cohn v. Railway, 182 Mo. 577, 81 S. W. 846.

<p>Appeal from St. Louis City Circuit Court. — IZo«. Daniel D. Fisher, Judge.</p> <p>(1) Eviction by act of landlord of any part of premises suspends payment of rent for remaining portion. Witte v. Quinn, 38 Mo. App. 690; Colburn v. Morrell, 117 Mass. 262; Fellebrown v. Hoar, 124 Mass. 583; Leesbam v. White, 1 Allen 489; McAdam on Landlord and Tenant, secs. 478-479; Dyett v. Pendleton, 8 Cowen (N. Y.) 731; Upton v. Townsend, 17 C. B. 30. (2) Eviction is any interference by the landlord with the tenant’s beneficial nse of the premises let. 11 Amer. and Eng. Ency. of Law, pages 470-471. (3) If a lease does not contain provision for its termination upon the total or partial destruction during the term, such destruction does not end the term. Gibson v. Perry, 29 Mo. 245.</p>

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

Louis City Circuit Court. — Now. O’Neill Ryan, Judge. (1) Tbe use made by tbe Feldmau Pants Manufacturing Company of tbe premises from May, 1904, until after July 12,1904, on wbicb day defendants vacated the premises, was a breach of the lessor’s covenant not to lease or allow any portion of the premises not in possession of defendants to be used for manufacturing or the sale of clothing, and constituted a constructive eviction as a matter of law.

— No». J. C. Sheppard, Judge. Statement. — -Defendants were informed against in the circuit court by the prosecuting attorney for maintaining a public nuisance in Ripley county.

Louis City Circuit Court. — Hon. Daniel Q. Taylor, Judge. When a real estate agent • is the procuring cause of a sale of land, he is entitled to his commission. McCormack y. Henderson, 100 Mo. App. 647, 75 S. W. 171. Where the agent set on foot inquiries and negotiations which finally culminated in the sale of the real estate, and he brought the buyer and seller together, he is entitled to his commission. Ounliff v. Hausmann, 97 Mo. App. 467, 71 S. W. 368.

<p>Appeal from St. Louis City Circuit Court. — Hon. O’Neill Ryan, Judge.</p>

Appeal fi urn Adair Circuit Court. — Hon. Nat. M. Shelton, Judge. (1) The record shows the defendants made no oral statement to be put in the transcript on the appeal from the probate court, filed no answer there. In snch case it is presumed the defendant pleaded general issue, a general denial. Reed v. Snodgrass, 55 Mo. 180; Bank v. Williamson, 61 Mo. 259.

William B. Teasdale, Judge. (1) Parties may stipulate with reference to the disposition of cases at any stage of the proceeding, and also witli reference to matters of practice and procedure, and the court will recognize and enforce such stipulation when legally made.

— Hon. Andrew F. Evans, Judge. (1) Defendant’s instruction numbered 1 should have been given. The suit was upon one cause of action which there was no proof to support, and the recovery was upon another, which was not pleaded. This is not a mere variance or discrepancy between allegata and probata, but an entire failure of proof. R. S. 1899, sec. 798; Murphy v. Bedford, 18 Mo. App. 279; Phleger v. Weltner, 21 Mo. App. 580; Edelen v. Strong, 34 Mo.

<p>1. BILLS AND NOTES: Guarantor's Notice: Agency to Collect: Construction. A loan company attached a slip to the note it took saying that payment by it was as guarantor and desiring . others handling the note not to mark it “paid.” Held, that it did not thereby reserve to itself the right of collection and dominion over the note with notice thereto to the assignee, but simply desired to protect itself when it made payment under its guaranty.</p> <p>2. -: Place of Payment: Notice to Assignee: Course of Business. Notes taken by a loan company were made payable at a certain bank where holders presented their coupons and notes and received their money. Held, the assignees of such notes were not affected with notice of the course of business between the maker, the loan company and the bank at which the notes were payable.</p> <p>3. -: Negotiability: Attorney’s Fee: Contract. A note providing for the payment of attorney’s fee in case of collection by suit is non-negotiable, as also where there is a contract for payment of certain other rates and assessments mentioned in the note.</p> <p>4. -: -: -: -: Notice by Assignee. A non-negotiable note is subject to section 8161, Revised Statutes 1889, and the maker is entitled to all credits and offsets against the payee up to the time the maker receives notice from the assignee of the assignment of the note. [Padley v. Neill, 134 Mo. 364, distinguished.]</p>

. — Son. Samuel Sams, Judge. (1) Plaintiff’s petition states no cause of action.

— How. Joshua W. Alexander, Judge. (1) “A judgment will be affirmed on motion of respondent where appellant having appealed in the circuit court, failed to file in the appellate court at the return term a proper transcript or certificate for review.

- — Hon. George W. Wannemaker, Judge. (1) And so it has been ruled’that where specific negligence is alleged, in connection with a general allegation, that no proof of negligence outside of that specificed is admissible. Breeden v. Mining Company, 103 Mo. App. 179; McManamee v. Railroad, 135 Mo. 447; Schneider v. Railway, 75 Mo. 295; McCarty v. Hotel Co., 144 Mo. 402; Chitty v. Railroad, 148 Mo. 75; Watson v. Railway, 133 Mo. 246; Bank v. Fritzglen, 135 Fed. 659; á Enc.

— Hon. Alonso D. Burnes, Judge. (1) If there is a market for the cattle on their arrival the shipper must sell on that market if he expects to hold the carrier liable for delay. He cannot hold them over to later market and speculate on the fluctuation of the market. The measure of damages is the difference in price between the time they should have arrivd and the time they actually did arrive.

— No». Alomo D. Burnes, Judge. (1) ■ The sole question for decision is the measure of damages for which the defendant is liable under the state of facts presented by the pleadings and the evidence, the defendant claims that because there was no subsisting contract between plaintiff and McCrossan Fruit Co. the defendant is not liable for any loss sustained and is only liable for the price paid for the sending of the message, about'fifty-three cents.

— Hon. Hugh Dabbs, Judge. (1) The false statement by defendant as to the actual cost of the farm in question, was the representar tion of a fact, not- a mere opinion as* to the value of the property. The rule is well established that it is actionable fraud to deceive a purchaser into buying through false statement of the actual cost of property. Pendergast v. Reed, 29 Md. 398, 96 Am. Dec. 539; Carter v. Brinninger, 36 N. J. L. 513, 97 Am.

— No». Alexander N. Waller, Judge. (1) After admitting in evidence the written contract and the warranty deed, the trial court sustained defendants’ objections to the admission in evidence of a stipulation, signed by counsel for both sides. This stipulation was to the effect that, after the execution of said deed, the county surveyor of Boone county made a survey of the land in question and ascertained that it contained 534.35 acres.

— Hon. William C. Ellison, Judge. (1) Plaintiff’s petition does not state facts sufficient to constitute a cause of action against the defendant nor to give to the court jurisdiction as it is nowhere alleged that plaintiff had been a resident of the State of Missouri for more than one year immediately preceding the filing of her petition. Defendant’s motion in arrest, page 132 of the abstract, renews the objection to the jurisdiction of the court.

— No». John P. Butler, Judge. (1) The judgment below, in express terms, as an inseparable part of it, is based upon a portion of section 1105 of the statute, which has been declared to be void, as in conflict with the organic law. Such judgment, therefore, cannot stand, as it is incapable of enforcement. Dickenson v. Railroad, 103 Mo. App. 334; Paddock v. Railroad, 155 Mo. 537; Railroad v. Ellis, 165 H. S. 150.

— Non. John P. Butler, Judge. (1) There was no liability on the part of the defendant. The gate need not be a statutory gate, if it was securely fastened. There was no actual notice to the company that the gate was open, neither had a reasonable time elapsed.

— Hon. Alexander H. Waller_, Judge. (1) The reception of Murry’s evidence was erroneous; it involved a collateral issue. Smart v. Kansas City, 91 Mo. App. 586; Goble v. Kansas City, 148 Mo. 470. (2) The plaintiff was permitted to show by the same witness that immediately after the accident the street commissioner caused the excavation to be securely covered, etc. Railway v. Hawthorne, 144 U. S. -202; Alcorn v. Railway, 108 Mo. 81.

— Son. George W. Wannemalcer, Judge. (1) The heirs at law of Susan Winnegar, deceased, did not inherit the land or any interest in it, and have no right whatever to the surplus fund in question, but the same belongs to said Samuel Winnegar. Poster v. Potter, 37 Mo. 534; Reid v. Mullins, 43 MO'. 306; Strawbridge v. Clark, 52 Mo. 21; Huff or d v. Gottberg, 54 Mo. 271; Moore v. Thompson, 40 Mo. App. 195; Elstroth v. Young, 78 Mo. App. 651; Same case, 83 Mo. App. 253, 94 Mo.

— Hon. George W. Wmmemalter, Judge. (1) The charge of negligence cannot he sustained by the act of the boss in bearing down on the bar, because it was not such an act as would naturally occur to a prudent person as likely to cause injury. First, it was not to be looked for that the bar would slip off the head of the bolt, and second, even if it did, it was not expected that it.would injure either of the parties bearing down on it. Hysell v. Swift, 78 Mo.

— Son. Chesley A. Mosman, Judge. (1) The court erred in excluding the petition in the case of Kendall B. Randolph v. Alice M. Butler and George C. Sims. The evidence was material and relevant and admissible under the general denial. Turner v. Thomas, 10 Mo. App. 338; Greenway v. James, 34 Mo. 326; Corby v. Weddle, 57 Mr. 452; White v. Middle-worth, 42 Mo. App. 373; Madison v. Missouri Pacific Ry. Co., 60 Mo. App. 606; Jones v. Rush, 156 Mo. 371; Clemens v. Knox, 31 Mo.

— No». Paris O. Stepp, Judge. (1). The plaintiff’s first instruction was too broad and covered any negligence arising in the conduct of defendant’s business, whether pleaded or not; as an abstract proposition of law it may be correct. Yogel v. West Plains, 73 Mo. App. 593. (2) The instructions in an action for negligence should confine the jury to the negligence alleged in the petition. Dahlstrom v. Railroad, 96 Mo. 99; Abbott v. Railroad, 83 Mo. 272.

— Hon. Howard Gray, Judge. (1) The mortgagor voluntarily surrendered the possession of the property to the mortgagee (the plaintiff herein) prior to the levy by the constable under the writs of execution and attachment. This would purge the mortgage of fraud, if there was any. Carriage Co. v. Wells, 99 M'o. App. 650.

— No». John P. Butler, Judge. (1) At the close of the case, the learned judge below should have directed a verdict in favor of the defendant. Sash and Door Co. v. Railroad, 177 Mo. 641, and cases there cited; Wyrick v. Railroad, 74 Mo. App. 415; Railroad v. Pearce, 192 IT. S. 189. (2) The court gave improper and erroneous instructions at the request of plaintiff. Ely v. Railroad, 77 Mo. 34; DeDonato v. Morrison, 160 M'o. 581; Haworth v. Railroad, 94 Mo. App. 215.

— Ho». John P. Butler, Judge. (1) The contract of shipment in this case is valid and precludes a recovery in this action. (2) As to burden of proof. Whitting v. Railroad, 101 M'o. 640. (3) As to validity of contract. Wyrick v. Railroad, 74 Mo. App. 416 to 419. (4) The court gave erroneous instructions at the plaintiff’s request, and of its own motion. See authorities cited under point 1, supra; Ely v. Railroad, 77 Mo1. 34; Perry v. Railroad, 89 Mo1. App. 49.

— Hon, Ohesley A. Mosman, Judge. (1) The court erred in refusing the demurrer asked at the close of plaintiff’s evidence and at the close of the entire testimony. (2) The demurrer should have been given because the fact, if it be a fact, that the plaintiff was induced to leave the train at Langdon by the erroneous announcement of the brakeman was not the proximate cause of the injury. 21 Amer. .& Eng. Enc. of Law, 485, 492, cases collated; Henry v. Railway, 76 Mo. 288.

— Hon. Alonso D. Burnes, Special Judge. . (1) The provision of'the contract requiring the shipper to give notice of loss or damage sustained, cannot be enforced in this case the damage having oceurred by reason of tbe carriers negligence and the trial court having so found. Ward v. Railway, 158 Mo. 226; loe. cit. 237; 5 Am. & Eng. Ency. L., at page 324; Express Co. v. Cooper, 14 Am. St. 586.

— Hon. Ghesley A. Mosman, Judge. (1) St. Joseph is a city of the second class and the grading of a street can only he done by ordinance, unless change of grade is authorized by ordinance, the city is not responsible for damages in an action at common law, or under the constitution. G-ehling v. St. Joseph, 49 Mo. App. 430; Beattie v. St. Joseph, 57 Mo. App. 251; Reeves v. Columbia, 80 Mo.

— No». Wm. K. Arniek, (Judge. (1) The demurrer prayed by the defendant at the close of the evidence should have been given. First.

<p>Appeal from Barton Circuit Court. — Hon. Henry G. Timm-Onds, Judge.</p>

— Son. James S. Slover, Judge. (1) The plaintiffs failed to make their claim for loss and damages in writing within five days of the arrival at destination of the corn in controversy. Rice v. Railway, 63 Mo. 314; McBeath v. Railway, 20 Mo. App. 445: Brown v. Railway, 18 Mo. App. 568; Thompson v. Railway, 22 Mo. App. 321; D'awson v. Railway, 76 Mo. 514; Messengale v. Telegraph Co., 17 Mo. App. 257; Leonard v. Railway, 54 Mo.

— Hon. John A. HochadayJudge. (1) The lien of the note in this case is subsequent to that of the deed of trust given at the same time the note was, and attaches to the equity of redemption. 2 Jones on Liens (1 Ed.), chap. 23; secs. 1079 and 1080 and cases cited in notes; 2 Sugden on Vendors (7 ed.), chap. 18, p., 329, sec. 8.

— Hon. Louis Hof man, Judge. (1) The pretended statement of plaintiff’s cause of action was and is insufficient to> confer jurisdiction, or to advise the defendants of the nature of the charge against them. Weese v. Brown, 28 Mo. 521; McCary v. Good, 74 Mo. App.. 425; Drug Co. v. Johnson, 80- Mo. App. 428. (2) The original paper filed with the justice was about as near no statement as could well be made. As the statement was a nullity there was nothing to amend.

— Hon, Joshua W. Alexander, Judge. (1) It is error to sustain a demurrer to the evidence where there is any evidence, whether offered by plaintiff or defendant, which tends to support the allegations of the petition. (2) And plaintiffs are entitled to the benefit of all the facts before the court, as well as the most favorable inferences to be drawn therefrom. Pope v. Cable Co., 99 Mo. 100; St. Louis v. Railway, 111 Mo. 13.

— Eon. Nat. M. Shelton, Judge. (1) The court erred in excluding evidence offered by plaintiff of the defendants’ receipts in excess of the receipts reported by them. (2.) The court erred in excluding evidence offered by plaintiff of defendants’ receipts for tolls and charges in addition to receipts for rent of defendants’ telephones. (3) The contract is explicit that defendants are to pay two per cent of their gross receipts.

— Hon. Alexander H. Waller, Judge. (1) Plaintiff having tendered his deed, conveying a good title was entitled to recover the balance of the unpaid purchase money. .29 Am. and Eng. Enc. of Law, (2 Ed.), 719; Scudder v. Waddingham, 7 Mo. App. 26; Davis v. Watson, 89 Mo. App. 15.

— Hon. E. W. Hinton, Special Judge. (1) There is no law which authorizes, directs or permits the regular judge of a circuit court to hold an adjourned term. R. S. 1899, secs. 1718, 1727; Laws 1901, sec. 1727.

— Hon. James H. Slover, Judge. (1) The facts as undisputed make out a prima facie case of abandonment of the homestead. The courts, as a rule have been liberal in the protection of homestead rights but at the same time have been consistent and have held uniformly that in order to entitle any property to that protection thrown around homesteads, it must in fact and actually be used for homestead purposes. Rental is not such a purpose.

—Son. Louis Sojfman, Judge. (1) Without one is an agister, taking stock to pasture or feed or keep at so much per head, there can be no lien for the keeping. As stated, where the simple relation of landlord and tenant alone exists the 'landlord has no lien upon stock kept in pasture for his rent. Jones on Liens, sec. 687; Stone v. Kelly, 59 Mo. App. 214; Sherwood v. Neal, 41 Mo. App. 416; 1 Bouvier’s Law Dictionary, p. 140; Powers v. Botts, 58 Mo. App. 1.

— Hon. Alexander H. Waller, Judge. (1) There is an improper joinder of two causes of action in the petition. (2) The court should have sustained defendant’s objection to the introduction of any evidence for the reason that the petition does not state facts sufficient to constitute a cause of action.

— Eon. William B. Teasdale, Judge. (1) The testimony of the plaintiff did not show thatthe jerkof the car was an extraordinary and unusual one, attributable to a defect in the track, an imperfection in the car or apparatus, or to a dangerous rate of speed or to an unskillful handling of the car by the grip-man, and the court should have directed a verdict for the defendant. Bartley v. Railroad, 148 Mo. 141; Saxton v. Railroad, 98 M'o. App. 494; Pryor v. Railroad, 85 Mo-.

— Son. John P. Butler, Judge. * (1) The plaintiff was not entitled to recover in this action any damages whatever on the shipments of either Alex. Guthridge or Steve Bushnell. R. S. 1899, sec. 540. (2) The undisputed proof here shows that the damages here sued for accrued upon the defendant’s connecting line. At common law and under the contracts of shipment, the defendant was not responsible therefor.

— Eon. Ghesley A. Mosma-n, Judge. (1) It is a well-established rule in this’State that the original owner or contractor is not liable for any damage caused by an independent or subcontractor unless the work contracted for inherently and necessarily would cause the damage.

— Now. George W. Wcmnemaher, Judge. (1) An interplea may be made by answer. Roselle v. Bank, 119 M'o. 84; Sullivan v. Knights of Father Matthew, 73 Mo. App. 43. (2) The amended answer in this case stated a good interplea. Moreover no objection was made to the sufficiency of that answer in the trial court, neither was objection made to the introduction of any evidence under it. Atkinson v. Carter, 101 Mo. App. 477; Woodmen of the World v. Wood, 100 Mo.

— -Non. C. W. Wannemaker, Judge. (1) The written contracts for the shipment of the cattle were the best and only competent evidence of the terms and conditions of the shipment, and the same could not be changed, modified, varied, or added to by any prior or contemporaneous statements or agreements. O’Bryan v. Kinney, 74 Mo1. 125; Holloway v. Ry., 62 Mo. App. 58; Turner v. Ry., 20 Mo.

— Eon. William, B. Teasdale, Judge. (1) Under the facts in this case it should be held that plaintiff assumed the risk incident to the employment. Harrington v. Railroad, 104 Mo. App. 663; Cothron v. Packing Co., 98 Mo. App. 343; Minier v. Railroad, 167 Mo. 99; Grattis v. Railroad, 153 Mo. 380; Smith v. Hammond Co., 11 Mo. App. 13; Kleine v. Freunds, 91 Mo.

Original Proceeding by Mandamus. Filed an argument. (1) The right to have a change of venue comes only from the statute. It can be granted by the court only when the party applying Tarings his case within the scope and meaning of statute. Endsley v. Railroad, 186 Mo. 404. (2) The respondent did not refuse to act on the application for change of venue.

— -No». Andrew F. .Evans, Judge. (1) The trial court refused to admit competent evidence. It lias always been competent to show the interest of the witness and the motions which might influence him to testify more or less favorably to the one side than the other. This was denied to the defendant in this case and such denial was error. R. S. 1899, sec. 3260; Veidt v. Railroad, 109 Mo. App. 104; Carp' v. Ins. Co., 104 Mo.

— Hon. Joshua W. Alexander, Judge. (1) Yerbal authority is sufficient to authorize an agent to sell the real estate of bis principal. Such authority may, however, be revoked at any time, with or without reason therefor. The authority of plaintiffs to act as agents of defendant in the sale of his land was by the defendant revoked long prior to date of alleged sale. Glover v. Henderson, 120 Mo. 367; State ex rel. v. Walker, 88 M'o. 279; Burk v. Priest, 50 Mo.

— No». Alexander „N. Waller, Judge. (1) The court erred in refusing to give defendant’s instruction numbered five. The same was not inconsistent with other instruction given. McClure v. Feldman, 184 Mo. 710, 84 S. W. 16. (2) The defendant was entitled to an instruction on the legal effect of plaintiff’s evidence.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) The general rule of law applicable to the last proposition is clearly stated in 14 Am. and Eng. Ency. of Law (2 Ed.), page 273, et seq. And this has been the rule in Missouri (as.announced not only by the Supreme Court, but by both Court of Appeals), almost since Missouri became a State. Brown, Adm., v. Finley, 18 Mo. 378.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. (1) The acceptance of the Giessler deed by Kammerer with the recital therein that the vendee assumed payment of the mortage debt was sufficient to impose personal liability upon Kammerer for this debt as principal debtor, and his signature was not necessary. Mc-Adaras v. King, 10 Mo.

— Eon. J. E. Mellette, Special Judge. (1) The directors of a living and going corporation are trustees of the shareholders. Section 4009, Thompson on Corporations; and incidentally and indirectly of the creditors of such corporation. Section 4021, Thompson on Corporations.