Volume 119 — Missouri Appeal Reports

<p>1. JURISDICTION OF PERSON: Waiver. Where an action was brought against two corporations in a county where one of them had no office, officer or agent, and afterwards the suit dismissed as to the other defendant, the want of jurisdiction over the remaining defendant was waived by a letter of such defendant’s attorney expressly agreeing to waive it.</p> <p>2. -: -. And in such case, where the defendant filed answer and went to trial, it thereby waived the want of jurisdiction.</p> <p>3. BANKS: Ultra Vires: Banks Engaging In Commerce. In an action by a bank against a railroad company for damages caused by delay in shipping a lot of cattle, where the evidence was conflicting as to whether the bank bought the cattle to sell, or held them as a pledge for the payment of an overdraft, and the jury were instructed that if the bank was owner of the cattle they should find for the defendant, a verdict for the plaintiff is conclusive that it held them as a pledge, that its transaction was not ultra vires, and it was not prevented from recovery by the provisions of section 1291, Revised Statutes 1899.</p> <p>4. PRACTICE: Instruction: Contradictory Instructions. In an action against a railroad company for damages caused by delay in shipping a carload of cattle, an instruction to find for plaintiff if the cattle were “injured and damaged on account of the delay,” was not inconsistent with an instruction for the defendant that no damage could be allowed on account of the cattle being crippled or injured in transportation.</p> <p>5. -:-. An instruction which was sufficiently explicit to be clearly understood was not erroneous, though ,in one part of the instruction the necessary explanatory word was omitted.</p> <p>' 6. -: Expert Witness. In an action against a railroad company for damages caused by delay in shipping cattle, a witness who went with the shipment, saw the cattle on the day of sale and was a shipper of cattle of fifteen years’ experience, was a competent witness to give his opinion as to the state and fluctuations of the market on that day.</p> <p>7. COMMON CARRIERS: Notice of Damage. Where a bill of lading for a carload of cattle provided that the shipper, as a condition precedent to his right to any damage for injury to the stock, should within, ten days, give notice in writing verified by affidavit to the agent of the carrier, the giving of such notice was a condition precedent to the shipper’s right to recover damage caused by delay in transportation.</p> <p>8. -: -: Estoppel. But where a notice, not properly signed or sworn to, was sent to the railroad company’s agent, was received and retained by him without objection to its form or substance, the railroad company was estopped to object to the sufficiency of the notice.</p> <p>9. -: Limiting Liability: Through Carriage. Where a bill of lading for a carload of cattle provided that they should be shipped from the point of shipment to the point of destination, the receiving carrier was liable for damage caused by delay in shipment which occurred over a connecting line, although the bill of lading provided it should be liable only for loss occurring on its own line.</p> <p>10.-: -: Reduced Rate. Where a bill of lading for the shipment of a carload of cattle stipulated that in consideration of reduced rate the loss on account of shrinkage should be limited to a certain amount, and where the regulation rate was not stated in the bill of lading and there was no evidence that the rate paid was a reduced one, the railroad company’s liability for shrinkage caused by delay was not limited to any sum less than the actual damage suffered.</p>

— Nora. James D. Barnett, Judge. There conld be no renewal of a note bearing eight per cent interest by a new promise not in writing. R. S. 1899, secs. 3705, 3706. The evidence offered on the part of the plaintiff in an effort to show a new promise was insufficient to constitute a new promise to pay the note.

— Son. James T. Seville, Judge. A title acquired under foreclosure of a first mortgage will not inure to the benefit of a second mortgage, if tbe second mortgage is expressly made and taken subject to tbe first mortgage. 1 Jones on Mortgage (4 Ed.), sec. 679; Hizzley v. Heffernan, 9 N. E. 570; 2 Washburn, Real Prop. (5 Ed.), pp. 117-217.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. (1) The court erred in overruling defendant’s demurrer offered at the close of plaintiff’s evidence. The evidence conclusively shows that the injuries complained of by the plaintiff, were the direct result of his own negligence and he cannot recover.

— No». David N. Eby, Judge. The court should have sustained appellant’s objection to any testimony offered on behalf of the respondent for the reason that the petition did not state facts sufficient to constitute a cause of action for separate maintenance; the petition should state facts which, if proven would be sufficient to grant respondent a divorce. There is no allegation of abandonment on the part of the appellant.

Louis City Circuit Court.— Hon. Walter B. Douglas, Judge. (1) In cites of three hundred thousand inhabitants or more, a person offering real estate for sale without the written authority of the owner, or of his attorney-in-fact, appointed in writing, is guilty of a misdemeanor. ■Missouri Session Acts of 1903, page 161.

— Eon. David E. Eby, Judge. The only question presented by the evidence in this cause is this, can respondent recover four hundred dollars under section 107, R. S. 1899, and at the same time accept the will and take the bequests given her under the will, and at the same time repudiate that part of the will that says, it is given “in lieu of dower.” Glenn v. Gunn, 88 Mo. App. 423.

— Hon. Chas. D. Stewart, Judge. (1) The demurrer should have been overruled. Bell v. County Court, 61 Mo. App. 178; United States v. Windom, 19 D. C. 54; State ex rel. v. Baker, 32 Mo. App. 98; State v. Meyers, 30 Mo. 601. Mandamus will lie to compel county judges to pay warrants ordered by them. State ex rel. v. Judges, 48 Mo. 475; Veal v. County Court, 15 Mo. 412.

— Eon. Joshua, W. Alexander, Judge. (1) This instruction authorized the jury to assess damages for plaintiff if he “has been or is incapacitated to any extent from working at his usual vocation for a livelihood.” There was no evidence that plaintiff had a “usual vocation for a livelihood,” or of the value of his vocation, or of his time or labor, and the jury could only guess as to the amount they might or should give him. This was manifest error. Haworth v. Railroad, 94 Mo.

— Hon. Hermann Brtimback, Judge. (1) This is an. action for conversion, pure and simple, upon the sole ground that plaintiff was not given personal notice, and the peremptory instruction should have been given. Bank v. Brunswig, 107 Mo. App. 405; Dugitt v. Davis, 53 M'ick. 35 ; Maguire v. Dinsmore, 70 N. Y. 410.

— Eon. William B. Teas dale^ Judge. (1) A principal who employs an agent may revoke the appointment at any time. 1 Am. and Eng. Ency. of Law (1 Eel.), 444; S warts v. Earls, 53 111. 237. But after the agent has acted on the authority conferred the principal is bound. 1 Am. and Eng. Ency. of Law (1 Ed.), 410; Burt v. Bowles, 69 Ind. 1; Pish v. Clelan, 33 111. 238; Dillman v. Nadlehoffer, 119 111. 567.

<p>Appeal from Adair Circuit Court. — Hon. Nat. M. Shelton, Judge.</p> <p>(1) The petition does not state facts sufficient to constitute a cause of action. Ckem. Works v. Nemnick, 169 Mo. 398; Nagel v. Railway, 167 Mo. 96; Sidway y. Land, etc., Go., 163 Mo. 372; Fucks y. St. Louis, 133 Mo. 197; Verdin y. St. Louis, 131 Mo. 151; Pier y. Heinrich-often, 52 Mo. 336. (2) This trial court erred in refusing to give and be bound by declaration of law, in nature of a demurrer to the evidence, requested by defendant at the close of plaintiff’s case, and also at the close of the whole case, and in failing to give and be bound by other declarations of law requested by defendant, in which were embodied the proposition that if B. A. Johnson failed to pay assessments duly levied, during the month when due, to the end that under the laws of the defendant, by the terms of his agreement made part thereof, he was not in good standing at the time of death, plaintiffs were not entitled to recover. Hart v. Johnston, 91 M'o. 414.</p> <p>(1) For a valuable consideration by it received from B. A. Johnson, is a statement of a legal conclusion, and not a fact. We contend that such statement is the statement of an issuable fact, and not the statement of legal conclusion. Nichols v. Nichols, 137 Mo. 187; 12 Ency. PL & Pr., sec. 1028; Taylor v. Newman, 77 Mo. 263. (2) Respondents earnestly contend that, on the issues made by the pleadings, the only questions are: First —The death of the insured B. A. Johnson. Second — That respondents are the beneficiaries named in the instrument sued upon — in other words, the identity of the plaintiffs. Thomas y. Life Association, 73 Mo. App. 371; Love v. Insurance Co., 92 Mo'. App.. 192; Faircloth v. Tinsley, 83 Mo. App. 586.</p>

<p>Appeal from Jackson Circuit-Court. — Hon. James Gibson, Judge.</p> <p>(1) There was a failure of proof. Beck v. Ferara, 19 Mo>. 30; Phleger v. Weltner, 21 Mo. App. 580; Priest v. Way, 87 Mo. 16; Chitty v. Railway Co., 148 Mo. 64; Clements v. Yeates, 69 Mo. 623; Cole v. Armour, 154 Mo. 333. (3) The court erred in admitting oral testimony to show that there was an oral agreement between San-born and Bass that Bass would not be required to pay the note in controversy. Jones v. Shaw, 67 M'o. 667; Bank v. Fesler, 89 Mo. App. 217; Frissell v. Mayer, 13 Mo. App. 331. (4) The court erred in overruling defendants’ demurrer to plaintiff’s evidence, (a) Plaintiff’s testimony did not prove the cause of action pleaded in the petition, (b) Plaintiff’s testimony showed that the note was given for a consideration, (c) Plaintiff’s testimony showed a confirmation of the purchase of the stock by the failure of plaintiff to rescind promptly upon discovering the alleged fraud. (5) The finding and judgment of the trial court was for the wrong party. Beebe v. Hatfield, 67 Mo. App. 615; Priest v. White, 89 M'o. 609.</p> <p>(1) The statement of facts in this case is sufficient in itself to support the decree of the court. Wannell v. Kem, 57 Mo. 479; Hess v. Draffen & Co., 99 Mo. App. 580; Herman v. Hall, 140 Mo. 276; Wickham y. Grant, 28 Kan. 517. (2) Something is said in defendant’s brief to the effect that what Sanborn said in regard to the condition of the company was a mere expression of opinion and not a statement of fact. This point is settled by the case Bank v. Hunt, 76 Mo. 444. (3) The assertion of appellant in his brief that there was a failure of proof in this case is puerile and cannot have been seriously meant. (4) The claim on the part of appellant that the court committed error in admitting proof of the representations of Sanborn that he would, protect the plaintiff on said note and that it wás executed for his accommodation, is clearly without merit.</p>

— Ron. Renry M. Ramey, Judge. (1) The defendant was guilty of no laches for which he should be punished. He took his appeal, gave bond which was approved. Only the justice was in default in performing his duty, (a) The monstrous wrong done defendant appears from the record.

— Nor. W. H. Martin, Judge. The court committed error in refusing to give the defendant’s demurrer to the evidence. First: Because the plaintiff assumed the risk of danger to himself and son riding on the car. Lee v. Railroad, 112 Mo. App. 372; Nugent v. Milling Co., 131 Mo. 245; Mathis v. Stock Yards Co., 185 Mo. 434; Kleine v. Clothing Co., 91 31 o. App. 102; Gothron v. Packing Co., 98 Mo. App. 343; 2 Thompson on Neg., 1008.

— Hon. James H. Slover, Judge. (1) One lias no right to presume a fact, which he knows, or has reason to know, does not exist. Roddy v. Railroad, 104 Mo. 250; Brannock y. Elmore, 114 Mo. 55; Nixon v. Railroad, 141 Mo. 439; Perrette y. Kansas City, 162 Mo. 249. (2) Instructions requiring a “fair preponderance” or “preponderance to the reasonable satisfaction” are erroneous. Grant v. Rowe, 83 Mo.

— Hon. Hermann Brivniback, Judge. (1) There was an implied warranty that the corn wns merchantable and reasonably fit for the nses to which it was ordinarily put. Benjamin on Sales (3 Amer. Ed. by Bennett), sec. 345; 2 Mechem on Sales, sec. 1340. Brewing Co-, v. McEnroe, 80 Mo-. App. 429; Babcock v. Trice, 18 111. 420; Brown v. Emersin, 60 Mo. App. 63; Grain Co. v. Benbaker, 89 Mo. App. 1; Haner v. Churchill, 29 Mo-. App. 676.

<p>1. COMMON CARRIERS: Connecting Carrier: Statute: Contract. Under the Missouri statute the initial carrier is not relieved from liability for the connecting carrier’s negligence by agreement to that effect, since that is in the face of the statute; the contract- should be that the initial carrier should only transport to the end of its own line.</p> <p>2. -: -: Common Law. At common law the carrier receiving goods for transportation beyond its own line engages only to carry them to the end of its own line and deliver to the connecting carrier.</p> <p>3. -: -: Contract: Common Law. Whatever may be arranged between connecting carriers themselves, they have a right to contract with a shipper as they please when not hindered by statute or public policy; and so two connecting carriers between New York and Kansas City constituting one continuous line of transportation may contract that each carrier shall be liable for his own torts and negligences. Cases distinguished.</p> <p>4. -: -: Continuous Line: Joint Action: Evidence. Two connecting carriers constituting a continuous line cannot be jointly held for injury to goods shipped over the line in the face of the agreement to be liable only for injury on their several lines, since they did not each receive the goods at the initial point and the evidence of their supposed agent is held insufficient'to bind them into an association of carriers operating one through line.</p>

Appealfrom Jasper Circuit Court. — Hon. Howard Gray, Judge. (1) The statute governing cities of the third class expressly gives such cities the power to levy aud collect a license tax on dramshops and saloons and to “License, tax, regulate or suppress . . . tippling houses.” R. S. 1899, sec. 5857. (2) This ordinance was copied literally from the Denver wineroom ordinance sustained by the Supreme Court of the United States in Cronin v. Adams, 192 U. S. 108, 48 Law Ed. 365.

— Hon. R. Steel Ryors, Judge. (1) There was no lawful consideration for the note. The evidence established the contrary beyond dispute. 6 Am. and Eng. Ency. Law, p. 757; Thornton v. Smith, 7 Mo. 85; Summer v. Summers, 54 Mo. 340; Baker v. Farris, 61 Mo. 389; Parsons v. Randolph, 21 Mo. App. 353; Beck v. Seal, 45 Mo.

— Hon. John G. Park, Judge. (1) The uncontradicted proof shows that the great flood of 1903 was rapidly coming, and for that reason defendant refused to receive or accept the cars in question. (2) The attempt to plead and establish the custom and usage of railroads at the Kansas City yards cannot avail plaintiffs. 27 Am. and Eng. Ency. of Law, 716; McAllister v. Barnes, 35 Mo. App. 673; Forney v. Adams, 74 Mo. 139; Ober v. Carson, 62 Mb.'214; Johnson v. Parrott, 92 Mo.

— Eon. John- Gr. Parle, Judge. (1) The general denial in the defendant’s answer put in issue the negligence charged against the defendant; and the request for a peremptory instruction to find for the defendant, challenges the sufficiency of the evidence to prove negligence.

— Eon. Eermmn !Brumbaelc, Judge. (1) There was no privity of contract between plaintiff and defendant. The relationship of landlord and tenant did not exist, and the grantor had no authority to serve the notice to terminate the tenancy. Logan v. Byers, 76 Mo. App. 559. (2) There was no service of the notice to terminate the tenancy had upon the defendant, Anna Ingram.

— Hon. Argus Gone, Judge. The evidence shows that the heirs of S. P. Inks were all of age; that all the other heirs assigned their undivided interests in the account sued on, to appellant, who had a right to join said accounts with his own claims against respondents and thus avoid- an unnecessary multiplicity of suits. There being no debts and the heirs all being of age no administration was necessary. Mc-Cracken v. McCaslin, 50 Mo. App. 85; Woods v. Donaldson, 87 Mo.

— Hon. J. D. Perkins, Judge. (1) When an- execution is levied on property not subject to execution, the levy will be quashed. Ryan v. Bradbury, 89 Mo. App. 665; Catron v. Lafayette County, 125 Mo. 67. (2) In an action at law to reach the trust estate the eestuis que trustent are necessary parties. Miller Lumber Co. v. Oliver, 65 Mo. App. 435; 18 Enc. Pleading and Practice, 106 and notes; Mallory v. Clark, 20 How. Pr. (N. Y.) 418; Prewettv. Land, 36 Miss. 495; 22 Enc.

— No». John P. Butler, Judge. (1) The rule of law'is well settled that when two or more instruments of writing are executed or delivered contemporaneously, for the same purpose, in relation to the same subject-matter,, and to accomplish a common purpose, they will be held to constitute but a single instrument, and the recitals in one may be explained, limited or changed by the contents of the others. Houck v. Frisbee, 66 Mo. App. 16; McDonald v. Wolf, 40 Mo.

— Hon. James Gibson, Judge. (1) Section 8012, Revised Statutes of Missouri, 1899, became a part of the contract of insurance by implication with same effect as if embodied in the policy. Christian v. Ins. Co., 113 Mo. 160; Haven v. Ins. Co., 123 Mo. 103; Ritchey v. Ins. Co., 101 Mo. App. 116. (2) The removal of the kitchen from its foundation to another spot did not avoid the policy.

<p>Appeal from Jackson Circuit Court.— Hon. Henry L. McCune, Judge.</p> <p>(1) The evidence did not establish a change of the beneficiary. Coleman v. Knights of Honor, 18 Mo. App. 198; Head v. Council of Catholic Knights, 64 Mo. App. 213; United Workmen v. Ross, 89 Mo. App. 621, 90 N. Y. Supp. 47; McLaughlin v. McLaughlin, 104 Cal. 177; Broom v. Grand Lodge, 57 Atl. 176. (2) The pretended assignment was invalid. Ford v. Garner, 15 Ind. 298; Wyman v. Snyder, 112 111. 98; Chrisman v. Russell, 14 Wall. 69; Whittle v. Skinner, 23 Yer. 531; Feamster v. Withrow, 9 W. Va. 296; Christmas v. Griswold, 8 Ohio St. 558; Bank v. Beal, 54 Fed. 577; Cushing v. Chapman, 115 Fed. 239; Baderow v. Trust Co., 74 Fed. 925; Foss v. Cabler, 105 Iowa 732; Sterns v. Ins. Co., 124 Mass. 63; Williams v. Ingerson, 89 N. Y. 518; Loomis v. Robmoore, 76 Mo. 488; Pearce v. Roberts, 27 Mo. 179; Kim-ball v. Donald, 20 Mo. 577; Bray v. Riggs, 110 M'o. App. 630.</p> <p>(1) A debtor consents to an assignment of part of his debt by default when sued, or by not making points against it, by asking an order for interpleader. Williams v. Ingersoll, 89 N. Y. 520; People v. Tioga Co., 19 Wend. 73; Bank v. Noonan, 88 Mo. 372,14 Mo. App. 243; Johnson Co. v. Bryson, 27 Mo. App. 343, 349; James v. Newton, 142 Mass. 266; Kingshnry v. Burriil, 151 Mass. 199; Beardslee v. M'ergner, 4 Mo. App. 139; Bank v. McLoon, 73 Maine 498. (2) The member of a benefit society has as against any one named as his beneficiary an absolute right at any time in any way to change his beneficiary (however his right as against the society may be by contract limited) whenever he pleases and for any reasons, at his will. St. Louis etc. v. Strode, 77 S. W. 1095, 103 Mo. App. 694; Mas. etc. v. Bunch, 109 Mo. 579; Marsh v. S. C. etc., 21 N. E.. 1072; Jory v. S. C. etc., 38 Pac. 525; Adams v. G. L. etc., 38 Pac. .914, 105 Gal. 321; Suncoke v. G. L., etc., 51 N. W. 9; Lahéy v. Lahey, 66 N.-E. 67; Lockett v. Lockett, 80 S. W. 1152; Manning v. A. O. TJ. W., 8 S. W. 385, 86 Ky. 136; Isgrigg v. Schooley, 125 Mo. 94.</p>

— Hon. J. D. Perkins, Judge. (1) Under tbe facts shown in evidence in this case and under tbe facts found by tbe trial court, tbe plaintiff was entitled to a decree as prayed, and tbe trial court committed error in dismissing tbe plaintiff’s bill. (2) Tbe trial court erred in bolding that tbe mentioning of tbe plaintiff’s mother in tbe will, and tbe making of a provision for her, was a sufficient naming of, or making provision for, tbe plaintiff.

— Hon. Howard Gray, Judge. (1) There is no evidence to show fraud in the execution of the release. (2) A release purporting on its face to be a complete settlement and to contain the whole agreement between the parties, has in its favor the strong presumption of validity, which applies to all written instruments, and the evidence to set it aside must be clear, precise and indubitable. 59 Central Law Journal, 404; Hiroland v. Blake, 97 U. S. 624; Ins.

— Son. George W. Wannemaher, Judge. (1) It was admitted by the plaintiff that the car of cattle was shipped under the live stock contract, a copy of which was attached to defendant’s answer, and was read in evidence, pages 55 to 57 of abstract.

— How. Samuel Davis, Judge. (1) The evidence showed that plaintiff was not the proprietor of, in fact had no right, title or interest in the Denham field. (2) In the next place plaintiff’s instruction number 1 does not submit to the jury whether or not the fence between the Bates (Kibler) and Denham fields was a good and lawful fence. Ferris v. Railway, 30 Mo. App. 122; Harrington v. Railroad, 71 Mo. 384; Rinehart v. Railway, 80 S. W. 910.

— Hoja Nat. M. Shelton, Judge. (1) A. F. Keene as public administrator in charge of the estate of Elsie Pearl Dennis, has no interest in this controversy. At the time of her death, Elsie Pearl Dennis had no vested interest in the benefit certificate, and at the time of her father’s death the benefit certificate to the extent of $1,000, which was payable to her, either lapsed or passed to the personal representative of the father. Grand Lodge v. Malley, — Mo.

— Eon. Howard Gray, Judge. (1) Officers of the local subordinate lodges, or camps, of the defendant society are its agents. McMahon t. Maccabees, 151 Mo. 522; Frame y. W. O. W., 67 Mo. App. 127. (2) If plaintiff is prevented from completing his contract by any unwarranted act or default of defendant, he may recover as if the contract were completed. Jarrell v. Farris, 6 M'o. 159 ^ Little v. Mercer, 9 Mo. 218; McCullough v. Baker, 47 Mo. 401; Baker v. Railroad, 19 Mo.

Circuit Court. — Hon. Alexander H. Waller, Judge. (1) A real estate agent is entitled to his commission, although his authority is not in writing. Gerhardt v. Peck, 42 Mo. App. 644. (2) The contract of pur-' chase signed by Young as agent for defendant, and also signed by Snyder was binding on Snyder at the election of the defendant. Real Estate Co. y. Ruhlman, 68 Mo. App. 503; Huggins v. Hearne, 74 Mo. App. 86.

— Hon. John P. Butler, Judge. (1) The first count of tlxe petition does not state facts sufficient to constitute a cause of action. It nowhere states in what manner the fences and cattle guards were defective. It merely alleges that the company failed to keep and maintain lawful fences and cattle guards. This is the statement of a legal conclusion and does not help the petition. Pattison’s Mo. Code Plead., secs. 34, 108, 109, 131, 144; Pomeroy’s Bern, and Bern.

— Hon. Samuel Davis, Judge. (1) The action of the court below was based in part upon the opinion that an appeal does not lie from the county court in such cases but that its judgment is conclusive. The rule now held by our appellate courts is that an appeal will lie in all cases specified in section 9419, Revised Statutes 1899, which includes all cases except where the county court refuses to open, change or vacate a road, which is the only case not specified.

— Hon. John G. Park, Judge. The court erred in refusing to give a peremptory instruction in favor of the defendant for the following reasons: First. The contract sued on is a contract for the sale of goods, wares and merchandise of the value of more than thirty dollars. Second.

<p>Appeal from Benton Circuit Court. — Hon. Charles A. Denton, Judge.</p>

— Hon. Hugh Dabbs, Judge. (1) The court committed error in instructing the jury to allow the plaintiff compensation “for the loss of the comfort and society of his son.” Leahy v. Davis, 121 Mo. 227; Parsons v. Railroad, 94 Mo. 298; Haines v. Pearson, 107 Mo. App. 485; Knight v. Sadtler L. & Z. Co., 75 Mo. App. 550; Railroad v. Barker, 33 Ark. 350, 34 Am.

— Hon. Howard Gray, Judge. (1) The novation of a debt secured by a mortgage discharges the mortgage. 21 Am. & Eng. Enc. of Law (2 Ed.), 674.

— Eon. Argus Cox, Judge. (1) The court refused all the instructions asked by the plaintiff, and undertook to give to the jury instructions of its own motion as to the law of the case, and rejected the theory of plaintiff, that defendant would still be liable for commission if defendant voluntarily changed the terms of sale after the purchaser was secured. Wetzell v. Waggoner, 41 M'o. App. 509; Perrin v. Kimberlin, 110 Mo. App. 661; Curry v. Whitmore, 110 Mo.

— Son. Charles A. Denton, Judge. (1) Where counsel is permitted against objection to make or persevere in improper remarks, the appellate court may properly interfere. Sideknm v. Railway, 93 M'o. 400; Norton v. Railway, 40 Mo. App. 647; Gibson v. Zeibig, 24 Mo. App. 65; Smith v. Tel. Co., 55 Mo. App. 632. And especially is this true where the record shows what the prejudicial remarks were, and the circumstances under which the same were made. State v. Thornton, 108 Mo. 640.

— Hon. Howard Gray, Judge. (1) When the plaintiff has alleged specific acts of negligence in her petition, she assumes the burden of proving them and must recover, if at all, upon the negligence pleaded.

— Son. John Gf. Park, Judge. (1) The respondent had no interést whatever in the property and hence has not been, nor could be damaged if the property was lost. The demurrer to the evidence ought to have been sustained.

— Eon. Levin W. Shafer, Judge. (1) Where a contract of sale of real estate is fully-executed, as it was when Grigsby conveyed to defendant Poole, in August, 1896, then the agreement of Poole to pay an existing debt against the land, the school fund mortgage in this instance, in payment of the purchase money, is not an agreement to pay the' debt of another, it is a part of the original undertaking, and constitutes a part or all of the consideration of the original purchase.

— Hon. Hermann Brumbach, Judge. (1) The plaintiff could not join in the same petition causes arising in tort and also in contract. I-Ience under the pleadings and the evidence there could be no recovery. R. S. 1899, sec. 593. This was brought to the attention of the court in defendant’s demurrer to the evidence, and was timely. Southworth Co. v. Lamb, 82 Mo. 247.

<p>1. INSURANCE: Explosives. The keeping of explosives in the building in which goods covered by a policy of insurance were stored, contrary to usage, to a city ordinance and to the terms of the policy, rendered the policy null and void.</p> <p>2. -: -: Representations. Although such explosives did not contribute to the loss which ensued, the keeping of such explosives materially increased the risk and forfeited the policy, notwithstanding the provisions of section 7973, Revised Statutes 1899, providing that conditions in policies of insurance shall be construed as mere representations.</p> <p>S. -: -: “Premises Insured.” Although the building in which the goods insured were kept was not insured, a provision of the policy forbidding the keeping of explosives in or adjacent to the building in which the goods were stored caused the policy to be forfeited by the keeping of such explosives in the building.</p> <p>4'. APPELLATE PRACTICE: Demurrer to Evidence. Where a defendant at the close of the evidence offers a demurrer to the evidence as a whole and saves his exceptions to the ruling of the court, the appellate court is required to review all the evidence heard on the trial and determine for itself whether or not there was substantial evidence to support the verdict.</p>

Louis City Circuit Court. — Son. Daniel D. Fisher, Judge. (.1) The evidence of plaintiff and. all his witnesses, as well as that of the defendant’s witnesses, showed conclusively that the broken rivet was not the proximate cause of the injury to the plaintiff’s finger.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. The demurrer to the evidence should have been overruled. (a) The evidence of plaintiff’s witnesses showed conclusively that young Schoenborn was a mere servant of the defendant, and not an independent contractor. O’Neill v. Blase, 94 Mo. App. 648, 68 S. W. 764; Waters v. Fuel Co., 52 Minn. 474, 38 Am. St. Rep. 564; Holmes v. Railway, 49 La, Ann. 1465; Sadler v. Henlock, 4 El. and Bl. 570; Morgan v. Bowman, 22 Mo. 549.

Louis City Circuit Court. — Eon. Walter B. Douglas, Judge. (1) The indignities complained of by respondent consisted of unmerited contemptuous treatment; acts and language toward her which manifested contempt for her; contumely, incivility and insult, in the presence of their daughter and others, amounting to a species of cruelty to the mind; as such they entitle her to a divorce. Griesedieck v. Griesedieck, 56 Mu. App. 94; Tripp v. Tripp, 78 Mo.

<p>Appeal from Ralls Circuit Court. — Hon. David H. Eby, Judge.</p>

— Eon. Jas. T. Ne-ville, Judge. (1) Contributory negligence is an affirmative defense and must be pleaded by answer before the defendant can avail itself of such defense, (a) It could not introduce evidence to show contributory negligence without so pleading. Schlereth v. Railroad, 96 Mo. 514; 10 S. W. 66; Donovan v. Railroad, 89 Mo. 147; McCormick v. Monroe, 64 Mo.

— Eon. David E. Eby, Judge. (1). To maintain his case on this theory, it was necessary for plaintiff to have shown (a) that he was either the owner of the land adjacent to the railroad, or that his horse was at the time lawfully upon said land (Harrington v. Railroad, 71 Mo. 384; Rinehart v. Railroad, 80 S. W. 910) ; (b) that this was a necessary farm crossing (section 1105, R. S. 1899); and (c) that the gate did not have such a fastening as was a hook or latch within the…

— Eon. F. O. Johnston, Judge. (1) The defendant was not arraigned and no issue was submitted to the court. This is conceded by the State. State y. Llewellyn, 93 Mo. App. 472; State v. Hull, 73 Mo. App.. 300; State y. Walker, 119 Mr. 467, 24 S. W. 1011; State v. Williams, 117 Mo. 379, 22 S. W. 1104. (2) The indictment is insufficient. It does not show that it was presented or returned to any term of the Lawrence Circuit Court. R. S. 1899, secs. 2512, 2513.

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. (1) The court erred in refusing defendant’s demurrer to plaintiff’s evidence, and its requested peremptory instruction. A person becomes a passenger on a street car by a contract express or implied, at a place provided for that purpose, and where and in a manner that people are expected to take passage.

<p>Appeal from McDonald Circuit Court. — Hon. F. O. Johnston, Judge.</p>

<p>1. AGENCY: Commission: Contract of Agency. A provision in a contract between a threshing machine company and its agents, that the latter should receive no commission for selling second hand machinery, contemplated second-hand machinery taken in by them and exchanged for goods they sold, and did not prevent their recovery of a commission for the sale of a secondhand machine taken in in another district and sold by them at the request of the company.'</p> <p>2. -: -: Contract of Sale. Where the agents of a threshing machine company made the sale of a machine but the sale was rejected by the company which immediately made a new contract of sale with the same parties, without a substantial variance in-the terms of the contract, for the purpose of cutting the agents out of their commission, they were entitled to their commissions on the sale.</p>

— Hon. Jas. J. Gideon, Judge. Statement. — This is a proceeding by information charging the commission of three several misdemeanors in three several counts.

— Hon. James D. Barnett, J uclge. (1) The State may maintain an action against a municipal corporation and the creators of a nuisance through its public law officer. 1 Encyl. of Law (2 Ed.), p. 72; 21 Encyl. of Law (2 Ed.), p. 705; 10 Encyl. of PI. and Pr., p. 902; 14 Encyl. of PI. and Pr., p. 1136; 29 Encyl. of Law (2 Ed.), p. 82. (2) The same rule obtains in Missouri. State ex rel. v. Saline Oo., 51 Mo.

— Hon. David H. Eby, Judge. (1) The advertising matter was a distinct part of the consideration and failure to provide it either in quantity or quality is a good defense. Tiedeman on Commercial Paper, sec. 203; Beeler y. Franklin, 57 Mo; 466. Non-performance of the contract on the part of plaintiff is a good defense in this action. Tiedeman on Commercial Paper, sec. 204.

— Eon. David E. Eby, Judge. (1) The contention of appellant is that the court erred in giving the instruction in the nature to a demurrer to the evidence at the close of the whole case. The universal rule is that if there is any evidence, however slight, and whether direct or inferential, it must go to the jury who are the exclusive judges of its weight and sufficiency. Chamberlain v. Smith, 1 Mo. 482; Baum v. Fryrear, 85 Mo. 151; Taylor v. Short, 38 Mo.

<p>Appeal from St. Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge.</p> <p>The court erred in giving plaintiff’s instruction No. 1. Jackson v. Railway, 118 Mo. 199, 24 S. W. 192; Bachsach v. Railroad, 54 N. Y. Sup. 958; Kohler v. Railroad, 99 Wis. 38, 74 N. W. 568; Nellis, Str. Surf. Railroads, p. 484. The court erred in giving plaintiff’s instruction No. 2. Hite v. Railway, 130 Mo. 132, 31 S. W. 262, 32 S. W. 33; Raining v. Railway, 157 Mo. 477, 57 S. W. 268; Hamilton y. Railway, 89 S. W. 893. Defendant’s instruction No. 3 should have been given. Waldhier v. Railroad, 71 Mo. 514; Allen v. Transit Oo., 183 M’o. 411, 81 S. W. 1142; Pryor v. Railway, 85 Mo. App. 367. Defendant’s refused instruction No. 6 should have been given. Hoolan v. Bailey, 38 Mr. App. 585; Walsh v. Transportation Oo., 52 Mo. 483. The existence of such usage or custom was not shown to have come to the knowledge of the governing officers of defendant, and defendant could not be bound in the absence of such showing. Johnson v. Railroad, 44 N. H. 213, 88 Am. Dec. 199.</p> <p>Statement. — This action was instituted to recover damages for a personal injury sustained by plaintiff while a passenger on one of defendant’s trolley cars of the open or summer pattern, with running-boards along the sides. The accident occurred at the intersection of Grand and Lucas avenues in the city of St. Louis, about eight o’clock in the evening of June 8, 1904. Plaintiff was at that time more than fifty years old and of stout figure, weighing nearly 190 pounds. She and her husband resided in East St. Louis, Illinois. A son of theirs resides on Easton avenue in the city of St. Louis, and they had been to visit him on the evening of the accident. Not finding him at home they started to return to their home, taking passage on a southbound Grand avenue car at Easton avenue. Mr. Parks paid the fare for himself and wife and was given transfers to the eastbound car line which left Grand avenue at Lucas avenue. Double car tracks turn from Grand into Lucas at the intersection of the two streets, and the points of the switch by which cars are diverted into Lucas, lie on Grand a few feet north of the north line of Lucas. Owing to this fact, when a southbound Grand avenue car draws near the switch, it slackens speed, or pauses, until the switch point is adjusted so that it can proceed on its way along Grand avenue instead of being diverted to Lucas. Sometimes it is necessary to come to a full stop in order to adjust the switch, and at other times the motorman is able to adjust it while the car is moving at slow speed. This diagram will illustrate the position of the several car tracks at the point in question:</p> <p> </p> <p>According to the ordinances of the city and the general custom of the defendant company, passengers who wish to get off at Lucas avenue leave the car, in most instances, not when the car slows down or pauses at the switch, hut on Grand avenue where the -south line of Lucas would cross it if extended. There was some testimony that occasionally cars stopped to discharge passengers in what would he the driveway of Lucas avenue if it was extended across Grand. This would he in accordance with the known fact that street cars are not always stopped at exactly the usual place for letting off and taking on passengers. Now and then they come to a stop several yards before the usual point is reached, and again, not until it has been run past that far. There was evidence going to show that passengers were discharged, now and then, at or near the north line of Lucas avenue. This occurred when a southbound car on Grand avenue stopped at the SAvitch points; and the usage was so far recognized by the defendant company, that, when a car actually stopped there to await the throAving of the switch, it Avas the custom not to move forward again until the conductor gave a starting signal; SO' that if a passenger happened to be getting off, the car would not be started while he was in the act. The conductor of the car on which plaintiff Avas riding gave testimony to that effect, as did other witnesses. The evidence leaves a great uncertainty as to whether the particular car with which we are concerned stopped'still at the apex of the switch, or only reduced speed until it. was moving slowly, and whether it was standing still or moving when plaintiff endeavored to alight. Several witnesses, including plaintiff, testified that it had stopped; others that it never ceased to move, but that its speed became quite slow and it was in slow motion when she tried to alight. Plaintiff testified that Avhen she and her husband started to leave the car, it Avas standing at the south line of Lucas avenue, which defendant contends was the usual stopping place. Another witness gave testimony going to show plaintiff’s attempt to leave the car was made when its rear end was about the middle of Lucas avenue; and still another, that they did so when its rear end was at the switch point and its front end in the middle of Lucas avenue. Plaintiff’s husband got off the car and plaintiff attempted to follow him. He held up his hands to assist her and just as she stepped on the running-board, the car either suddenly started from a motionless state, or took on an accelerated speed, and she was thrown on the street and injured. Plaintiff testified that when the car stopped at the switch the conductor cried out “Downtown transfers;” thereby signifying that passengers who wished to transfer to a Lucas avenue car should get off at that point. The conductor admitted making the exclamation, but said he did so, not at the switch, but north of it, and that he always gave a similar notice immediately after passing the next cross-street to the north. The testimony of plaintiff’s physician goes to show she sustained a severe shock which resulted in neurasthenia and hysteria of a permanent type; whereas the physicians who testified in behalf of defendant give the impression that whatever nervousness she was suffering from was due largely to her general state of health and excessive stoutness. We need not particularize about the injuries, because the errors assigned do not go to the amount of damages awarded.</p> <p>The instructions given and refused which bear on the points to be decided will be copied. For the plaintiff the court instructed as follows:</p> <p>“P. 1. The court instructs the jury that if you believe and find from the evidence in this case, that on the 8th day of June, 1904, the defendant was a carrier of passengers for hire by street railway in the city of St. Louis, Missouri, and used the car mentioned in the evidence for said purpose; and if you further find from the evidence that on said day the defendant’s employees in charge of the sonth-bonnd car on its Grand avenue line, mentioned in the evidence, received plaintiff as a passenger upon said car at or near Easton avenue in said city, and that the conductor in charge of said car collected plaintiff’s carfare from her husband and gave him a transfer for plaintiff to be used on defendant’s Washington avenue line; and if you further believe and find from the evidence that when said southbound Grand avenue car arrived at or near Lucas avenue, it stopped; and if you further find from the evidence that the place where said car stoppéd on said occasion was a usual and customary place for defendant’s southbound Grand avenue cars to stop and discharge passengers, and that it was a usual and customary transfer point for passengers on southbound cars on said Grand avenue line to transfer from said line to defendant’s Washington avenue line; and if you further find from the evidence that while said car was so stopped at said place, the plaintiff undertook to alight from said car, and that while she jvas proceeding to alight therefrom and before she had safely reached the ground, and before she had reasonable time and opportunity to alight safely, defendant’s said employees in charge of said southbound Grand avenue car negligently caused, or suffered said car to be suddenly started forward with a jerk and that thereby plaintiff was thrown upon the street and injured; and if the jury further find from the evidence that defendant’s said servants in charge of its said car could, by the exercise of a high degree of care such as would have been used by careful and skillful men under like circumstances, have prevented such starting of said car at such time, and the alleged injury to plaintiff, and failed to do so; and if the jury further find from the evidence that the plaintiff, prior to and at the time of attempting to alight from said car was exercising ordinary care for her own safety in doing so, under all circumstances shown in the evidence, then plaintiff is entitled to recover.</p> <p>“P. 2. The court instructs the jury that if you find from the evidence in this case that while the plaintiff was a passenger on the southbound Grand avenue car referred to in the evidence, said car stopped at or near Lucas avenue, whether for the purpose of enabling the motorman in charge of said car to throw a switch, or for any other purpose and that while said car was so stopped and standing still, the plaintiff undertook to alight therefrom, then it was the duty of the defendant not to start said car while the plaintiff was in the act Of alighting and known to the conductor having charge of the same; and as a common carrier of passengers, it was defendant’s duty to give plaintiff a reasonable opportunity to alight from its car before starting the same, if the fact that the plaintiff was attempting to alight was known to the conductor in charge of the car. And if you believe and find from the evidence that while said car was so stopped, the plaintiff was in the act of getting off said car with the knowledge of the conductor of said car, and while in the exercise of ordinary care on her part, and that said car was carelessly and suddenly started forward with a jerk while plaintiff was so getting off, and before she had a reasonable time to do so, and that she was thereby thrown down upon the street and was injured, then the defendant is liable, and your verdict should be for the plaintiff.”</p> <p>For the defendant the court gave this instruction:</p> <p>“A. The court instructs the jury that if you find and believe from the evidence that plaintiff attempted to alight from defendant’s car before the same had stopped to receive or discharge passengers, and while the same was in motion, and that such action on her part directly caused or contributed to bring about the injuries complained of, then the plaintiff cannot recover and your verdict must be for defendant.</p> <p>“B. The court instructs the jury that if you find from the evidence that defendant’s car was not stopped at the usual place for taking on and discharging passengers, nor for that purpose, but was slowed down or stopped before it reached such point in order to open a switch, and shall further find that defendant’s servants in charge of said car had not been notified by plaintiff of her intention to alight at said point, and that neither of said servants knew of plaintiff’s intention to so attempt to alight from said car at said place, and that plaintiff without notice of her intention so to do, attempted to leave said car at said place, and while in the act of alighting said car was moved forward by the servants in charge of defendant’s car without any notice or knowledge upon the part of either of them that plaintiff was making or about to make such attempt, then plaintiff cannot recover in this action and your verdict must be for defendant.</p> <p>“C. If you find and believe from the evidence that plaintiff attempted to alight from defendant’s car while the same was in motion, then plaintiff cannot recover and your verdict must be for defendant.”</p> <p>The court gave certain instructions of its own motion defining the meaning of ordinary care and the burden of proof.</p> <p>The following instructions were requested by defendant and refused:</p> <p>“D. 3. The court instructs the jury that the mere fact, if it be a fact, that plaintiff was injured while attempting to alight from one of defendant’s cars does not entitle plaintiff to recover. Before you can find a verdict in favor of plaintiff and against defendant you must find and believe from the evidence that the car mentioned in the evidence came to a stop for the purpose of discharging passengers, and while so stopped and while plaintiff was in the act of alighting from the same, it was negligently caused and suffered by defendant’s agents in charge of the same to start forward with a lurch or jerk, thereby causing plaintiff to fall and receive the injuries complained of.</p> <p>“D. 4. The court instructs you that by the terms of the city ordinance read in evidence by defendant St. Louis Transit Company, said company was required to stop its cars on the south side of Lucas avenue for the reception and discharge of passengers and had a right to rely upon the observation of that ordinance by the persons taking passage on its cars, and the mere fact, if it be a fact, that the car in question was slowed down or stopped on or near the north side of Lucas avenue before crossing, is of itself no evidence whatever of an invitation for plaintiff to alight at that place, nor is it any evidence of negligence on the part of said St. Louis Transit Company.</p> <p>“D. 5. The court instructs the jury that if you find from the evidence that defendant’s car upon which plaintiff was a passenger had not yet reached the usual stopping place at the southwest comer of Grand and Lucas avenues for receiving and discharging passengers, but was slowed down or brought to a stop before reaching the said usual stopping place in order for the motorman to throw a switch and was not stopped or slowed down at said point in order to receive or discharge passengers, and that while the car was so stopped or slowed down plaintiff attempted to leave the same and while so in the act of leaving said car, said car was moved forward, and plaintiff was thrown and injured, then plaintiff cannot recover in this action and your verdict will be for defendant.</p> <p>“D. 6. Although you may believe from the evidence that at and before the time of the accident and since that time many persons have gotten on and off southboilnd cars while said cars were stopping at or near the switch on the north side of Lucas avenue, still the court declares to you as a matter of law that this fact, if it be a fact, does not establish, or tend to establish the existence of a custom that is binding upon defendant St. Louis Transit Company in the absence of evidence that such conduct- of passengers was known to some officer or agent of said Transit Company having authority on behalf of said company to approve or permit it.”</p> <p>The cause of action declared on is thus stated in the petition:</p> <p>“Plaintiff further states that at or near the intersection of Grand and Lucas avenues, said Grand avenue car was caused by 'the agents and servants of defendant in charge thereof, to stop and plaintiff was invited by defendant to alight from said car.</p> <p>“Plaintiff further states that while said car was standing still and motionless at said time and place, plaintiff undertook to alight from said car upon the street. But plaintiff states that at said time and place the defendant, through its agents and servants in charge of said car, unmindful of its duty and agreement, negligently failed to allow the plaintiff reasonable time and opportunity to alight from said car, but did so negli-. gently, carelessly and unskillfully operate said car that while plaintiff was proceeding to alight threfrom, said car was by said servants negligently caused and suffered to be suddenly started forward with a jerk and plaintiff was thereby thrown down upon the street and seriously and painfully injured.”</p> <p>The petition then states the extent of the injuries-received by the fall.</p>

— Hon. Joseph J. Williams, Judge. (1) The testimony shows conclusively that the note on which judgment Avas rendered in the State of Illinois was a Missouri contract, and that the power of attorney authorizing any attorney of record to appear in court and confess judgment without process, in favor of the holder, rendered said note non-negotiable in the State of Missouri where the same was negotiated, and hence the Illinois court rendering the judgment on which this suit is…

<p>LIMITATIONS: Payments. In an action on two promissory notes the defense was the Statute of Limitations which the plaintiff sought to overcome hy credits on the notes. The evidence showed that the defendant had an open account against the plaintiff, the amount of which was disputed by the plaintiff and it was agreed that the amount due should be credited on the notes. There was never an agreement as to the exact amount due. Held, this did not amount to a payment which would stop the running of the Statute of Limitations.</p>

— Non. David N. Eby, Judge. (1) This suit was instituted before a justice of tbe peace, and tbe transcript by bim filed in tbe circuit court fails to show that tbe suit was instituted before a justice of tbe township in wbicb tbe injury occurred, or a justice of some adjoining township: Therefore tbe court bad no jurisdiction to try tbe cause attempted to be stated in tbe first count of plaintiff’s statement, wbicb was for double damages and tbe court committed error in not…

<p>Appeal from Audrain Circuit Court. — Hon. Jas. D. Bwnett, Judge.</p>

<p>Appeal from Ralls Circuit Court. — Hon. John Megown, Special Judge.</p>

<p>1. PRACTICE: Statute of Frauds: Timely Objection. Objection to a contract sued on, on the ground that it is within the Statute of Frauds, comes too late after judgment.</p> <p>2. REAL ESTATE BROKER: Commission. Where two real estate brokers were entitled to a joint commission and one of them acknowledge payment in full, the other could recover only one-half of the amount of. the commission.</p>

<p>1. BILLS AND NOTES: Innocent Purchaser: Contemporaneous Agreement. In an action by the indorsee of a promissory note purchased before maturity, evidence of a contemporaneous agreement between the maker and the payee modifying the terms of the note, was inadmissible in evidence.</p> <p>2. --: Payment to Indorser. And in such action it was incompetent to show payments made hy the maker to the indorsee after the transfer of the note, in the absence of any authority shown on the part of the indorser to collect for the indorsee.</p> <p>3. PRACTICE: Evidence: Part of Deposition. Where one party to a cause introduces on the trial a part of a deposition, it is error on the part of the court to exclude other parts of the same deposition explanatory of the parts introduced.</p>

— Hon. E. M. Dearing, Judge. The witnesses in this case were permitted to give their opinion as to the damages sustained by the plaintiff, which is error. To allow a witness to give his opinion as to the amount of damages sustained in any given case is, as a general rule, usurping the province of the jury, and determining for them a question of which they are peculiarly the judges, and for which purpose they are selected triers of a case sounding in damages.

— Hon. Henry G. Riley, Judge. (1) The letterpress copies of letters from the Hoffman Heading & Stave Company to O. G. Miller, of Cairo, Illinois, were inadmissible in evidence for two reasons: (a) Because the averments in the petition only refer to matters which, occurred in the month of July, 1903, and the letters were all written subsequent to that time. The evidence must correspond with the allegations and be confined to the point in issue.

<p>1. JUSTICES OF THE PEACE: Certifying Cause to Circuit Court: Remanding Cause. Under section S951, Revised Statutes of 1899, where, in a cause pending before a justice of the peace, the title to real estate is put in issue by a verified pleading, the justice shall certify the cause to the circuit court, and the same section authorizes the circuit court to remand the cause to the justice if in the judge’s opinion the statement filed does not show the title to be involved.</p> <p>2. -: Appeals: Final Judgment. An order of the circuit court remanding a cause to a justice of the peace from whom the cause had been certified on the ground that the title to real estate was involved, the order being made because in the opinion of the circuit judge the pleading did not show that the title to the real estate was involved, is not a final judgment and an appeal will not lie from such order of the circuit court.</p>

— Hon„ Dcivicl H. Elay, Judge. The trial court was right in giving plaintiff’s instruction No. 9. In Nichols v. Nichols, 147 Mo. 387, this identical instruction was upheld in a case on all fours with the ODe at bar. The court committed no error in refusing defendants’ instruction No. 3, because, if for no other reason, twelve lengthy instructions on the part of defendants were given covering every phase of the case from defendants’ viewpoint.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge: (1) A railroad corporation without the express consent and authorization of the lawmaking power of the State cannot make a lease of its property or franchises to another corporation, such a contract being ultra vires and void.

<p>RAILROADS: Fences: Killing Stock. In an action against a railroad company for double damages for the loss of the plaintiff’s cow, where the cow went upon the defendant’s track in an unincorporated town at a point where no streets were didicated, at a distance of several hundred feet from a switch or crossing or depot, a finding for plaintiff by the trial court which involved a finding that the right of way could have been fenced without detriment to the public business or danger to the company’s employees, will not be disturbed.</p>

— Eon. Ghas. A. Killian, Judge. (1) Tbe petition discloses the illegal and immoral nature of the contract, and that such contract, even though it had been made, was yoid and the petition did not state a cause of action, and defendant’s objection should have been sustained. Turley v. Edwards, 18 Mo. App. 676; Austin y. State, 10 Mo. 591; Peltz y. Long, 40 Mo. 533; Sumner v. Sumner, 54 Mo. 340. (2) The verdict is excessive, and is not based on the testimony in the case.

Genevieve Circuit Court. — Eon. Chas. A. Killian, Judge. Plaintiffs James L. Hackett and Graeme McGowan, being tbe owners of all of tbe capital stock of tbe Green-brier Distillery Company and so constituting tbe corporation, should bave been permitted to amend tbeir petition, as prayed, under tbe provisions of tbe statute. Plaintiff’s request to amend is sanctioned by tbe following decisions of this court and tbe Supreme Court.

— Hon. Charles D. Stewart, Judge. (1) This verdict, “We the jury find for the plaintiff on the account sued on in the sum of 161.72 as against Charles Maddox and Lee Coe. Geo. W. Hale, Foreman,” is fatally defective in not finding as to all the issues. The issues were: Whether defendants or any of them were liable to plaintiff? Whether plaintiff was liable to defendant Charles Maddox on his counterclaim? And what defendants, if any, were liable to plaintiff?

— Now. W. N. Evans, Judge. (1) Instruction number two, given on part of plaintiff, is erroneous, in that it does not define the measure of damages. It says, for the misconduct of the defendant’s conductor, and does not tell the jury what they should consider in arriving at their verdict. Mize v. Gilen, 88 Mo. App. 94; Wilburn v. Bailroad, 86 Mo. App. 215; McKee v. B. B.., 49 Mo. App. 174; Kick v. Doerste, 45 Mo. App. 141; Lesser v. Bailroad, 85 M'o. App. 326.

Louis City Circuit Court. — Son. Matt. G-. Reynolds, Judge. (1) Appellants’ objection to the introduction of any testimony in the case on the ground that the petition did not state facts sufficient to constitute a cause of action, should have been sustained. It did not state the number of guests nor the price per guest. Shaver v. Ins. Co., 79 Mo. App. 420; Murphy v. Ins. Co., 70 Mo.

— Eon. W. N. Evans, Judge. We submit that said parol agreement for written lease and the placing of appellants in actual possession of the leased premises and payment of rent created a tenancy from year to year. (Scolley v. Murray, 34 Mo. 420, 86 Am. Dec. 116), and can only be terminated by the landlord giving sixty days’ written notice as provided in section 4109, Revised Statutes 1899.

— Hon. Henry C. Riley, Judge. The court had no jurisdiction by appeal, the justice failing to allow an appeal as shown by the justice’s transcript. Jurisdiction of the court in cases appealed from justice’s courts is acquired in a special statutory manner, and it is necessary that it be shown from the record. Kelm v. Huclder, 49 Mo. App. 664. The affidavit for appeal should show whether the appeal is taken upon the merits of the case or from an order or judgment taxing costs.

Louis City Circuit Court. — Eon. Warwick Rough, Judge. (1) The appellants’ demurrer to the respondent’s evidence should have been sustained. In cases of mere refilling or substitution like this one, the courts do not permit damages of any sort. As far as they will go is to issue a restraining order without costs.

— Hon. L. B. Wood-side, Judge. (1) The court erred in excluding the written instrument called “Contract of Option” offered by defendants. . The burden of showing that Thos. F. Millard, of whom defendant L. X. Smith bought the property, in part payment for which the note sued- on was given, was the agent in making said sale of plaintiff, was on defendants. Gentry v. Ins. Co., 15 Mo. App. 215; Breckinridge v. Ins. Co., 87 Mo. 62.

Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge. Defendant’s demurrer to the indictment should have been sustained, (a) The alleged neglect of duty must be shown to be corrupt. Section 2105, R. S. 1899; State v. Gardner, 2 Mo. 23; State v. Hein, 50 Ibid 362; State v. Pinger, 57 Ibid 243; State v. Grassle, 74 Mo. App. 313; Smith v. Sing, 68 Cal. 324; Tripplett v. Numter, 50 Cal. 645.