Volume 120 — Missouri Appeal Reports

— Ron. L. B. Woodside, Judge. (1) The alleged conversation between plaintiff and Stephens, the soliciting agent of defendant, in reference to the keeping of the books in an iron safe or other secure place cannot be construed a waiver of the conditions of the application and policy. All agreements of this character were merged in the written application and policy. And evidence thereof should have been excluded and the instructions thereon were erroneous.

<p>APPELLATE PRACTICE: Weight of Evidence. In an action for an accounting and for the balance due on a contract for the purchase of timber, the evidence was conflicting and did not preponderate against the plaintiff sufficiently to justify the appellate court in setting aside a finding of the trial court in his favor.</p>

— Now. Hotiston Johnston, Judge. (1) Proceedings to compel owners to pay for improvements in front of their properties are in invitum, and strict performance of all conditions is necessary to fasten a lien upon the property of the citizen. Rose v. Trestrail, 62 Mo. App. 352; West v. Porter, 89 Mo. App. 150.

.Appeal from Dent Circuit Court. — No». L. B. Wood-side, Judge. There was no demand npon defendant for the return of said cattle. McRoberts represented the defendant in executing said contract and was superintendent of said company, yet no demand was made on him. (a) Under, the form of conversion sued on (not considering the contract) to-wit: “by failure to deliver to owner on demand,” a demand is imperative. Nanson v. Jacobs, 98 Mo. 340, 6 S. W. 246.

— Hon. F. G. Johnston, Judge. The confessed facts in this case stamped the business that the plaintiff and defendant were engaged in as gambling transactions, as we view it, beyond dispute.

— Eon. James T. Ne-ville, Judge. (1) Under tbe law governing cities of tbe third class tbe taxbills sued on are assignable and collectible by tbe bolder thereof and are prima facie evidence of tbe regularity of tbe proceedings, of tbe validity of tbe tax-bills, of tbe doing of tbe work, and tbe validity of tbe charge against the property therein described to tbe charge stated in tbe taxbill. A general denial constitutes no answer.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. The receipt and retention of this premium estops the defendant from claiming that the policy was void for non-payment of the same premium. Andrus v. Life Ins. Assn., 168 Mo. 151, 67 S. W. 582; James v. Life Assn., 148 Mo. 1, 49 S. W. 987; Wagaman v. Life Ins. Co., 110 Mo. App. 616, 85 S. W. 117; Suess v. Life Ins. Co., 86 Mo. App. 10.

Louis County Circuit Court. — Hon. John W. McElhin-ney, Judge. (1) The court erred in refusing to give the peremptory instruction offered by appellant at the close of all the evidence, (a) Because there was no evidence to sustain any. of the allegations of negligence contained in respondent’s petition, (b) Because the evidence clearly showed that the risk or riding on the elevator was assumed by the respondent.

— Hon. John Moore, Judge. The court erred in overruling defendant’s demurrer to plaintiffs’ evidence. The evidence shows without dispute, in fact plaintiffs admitted that they had not kept hooks as required by the policy. 13 Am. and Eng. Ency. of Law (2 Ed.), p. 355. Ins. Co. v. Wilkinson, 13 S. W. 1103; Kelly Goodfellow Shoe Co. v. Ins. Co., 28 S. W. 1027; Ins. Co. v. Allen, 24 So, (Ala.) 399; Id., 30 So, 537; Ins. Co. v. Brownell, 62 Ark. 43, 34 S. W. 83. Ins.

— Eon. W. N. Evans, Judge. (1) There can be no total loss of a building so long as that part of the structure standing is reasonably adapted for use as a basis upon which to restore it to the condition in which it was before the injury; that whether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question was before injury, would, in proceeding to restore the building to its original condition,…

— Hon. W. W. Graves, Judge. (1) The allegation that J. C. Courtney complied with all the conditions of the policy up to and after he became ill and confined to his bed amounts to and in effect is an admission and allegation that during the illness and after the commencement thereof, he failed to comply with some requirement of the policy. Ewpressio unius est eaoclusio alterius. (2) The payment to Snyder was not a payment to the association. Upton v. Jameson, 67 Mo. 234.

— Hon. William O. Ellison, Judge. (1) Where the crop has been converted, an action may be maintained by “any party entitled” to the crop converted, against “any person” who “shall bny any crop grown on demised premises, upon which any rent is unpaid, and where snch purchaser has knowledge of the fact that such crop was grown on demised premises.” Toney v. Goodley, 57 Mo. App. 248; Beshe v. Batodorf, 98 Mo.

— No». Nat. M. Shelton, Judge. (1) The probate court has no equity powers. In re Glover & Sheply, 127 Mo. 153; Patterson v. Booth, 103 Mo. 402; Pres. Church y. McElhiny, 61 Mo. 540. (a) It cannot determine interests of litigants under a will. Brown v. Cole, 136 M'o. 201. (b) It cannot try questions of ownership. Johnson v. Jones, 47 Mo. App. 237; State v. Jones, 53 Mo. App. 207; State v. Jones,, 131 Mo. 194; Conly v. Truitt, 63 Mo. App. 358.

— Hon. Alexander H. Waller, Judge. (1) The affidavit for an appeal from the justice court to the circuit court, was insufficient and did not authorize an appeal. R. S. 1899, sec. 4062; State v. Hammond, 92 Mo. App. 231; Whitehead v. Cole, 19 Mo. App. 128.. (2) The affidavit may be taken by any officer qualified to administer oaths in the State, of course, as our statutes can not reach outside of this State and have force and effect in the State of Tennessee.

— Eon. Alexander E. Waller, Judge. (1) The receipt was prima facie evidence of delivery to plaintiff, and was controlling until overcome by other proper evidence. Bank v. Steamship Co., 59 N. Y. 510; Wilcox v. Railroad, 24 Minn. 269; 3 Wood on Railroads, sec. 435.

— Hon. Cyrus Crane, Special Judge. (1) The court erred upon the trial in refusing to sustain the demurrer of defendant to plaintiff’s evidence, and also upon the conclusion of the whole evidence. (2) The court erred in instructing the jury. Filed argument.

— Hon. Henry G. Timmonds, Judge. (1) If the plaintiff, in an action based upon an ordinance, statute, or the common law, has been guilty of contributory negligence, or if the facts disclose that he assumes the risk, he is not entitled to recover, whether his right be predicated upon either one or the other.

— Hon. Hermann Brumbach, Judge. (1) The court erred in sustaining plaintiff’s motion to dismiss this cause for the reason that section 378, Revised Statutes 1899, was broad enough to permit plaintiff to have an attachment issued in aid of the revival of this dormant judgment. (2) An independent action by attachment or otherwise may be maintained on a judgment. Sheehan v. Simms, 28 Mo.

— Hon. Samuel Davis, Judge. (1) The court erred in giving plaintiff’s instruction number one, first because the jury are not therein required to find that any negligence of defendant was the proximate cause of her injury, and in the second place, because it was not shown by the evidence that any negligence of defendant was the proximate cause of plaintiff’s injury. G-illiland v. Railway, 19 Mo. App. 411, 418; Hayley v. Transit Co., 179 Mo. 30; Foley v. MacMahon, 90 S. W. 113.

— Eon. Paris C. Stepp, Judge. (1) The nature of the business contemplated and the nature of the joint property is such as to preclude the idea of ownership of any integral part of the system by any of the joint owners. The intention of the enterprise was to connect the several towns with the county seat at Unionville and it was used for four years for this purpose.

— Hon. Louis Hoffman, Judge. (1) This action is not barred by the ten-year statutes of limitations. R. S. 1899, sec. 6796. (2) By Laws 1895, at page 221, the act of the Legislature amending section 6796, Revised Statutes 1889, and limiting the- period to ten years, did not destroy the vested right in the plaintiff to bring Ms action within a period of twenty years.

<p>1. NEGLIGENCE: Contributory Negligence: Prudence: Using Faculties. When a person fails to employ his faculties to become aware of confronting dangers, or knowing thereof, tQ use reasonable care to avoid it, the law calls his conduct careless, because out of harmony with ordinary prudence and loads it with the entire responsibility of the consequences, notwithstanding the negligence of another may have aided in producing them.</p> <p>2. MUNICIPAL CORPORATIONS: Defective Sidewalk: Use of: Contributory Negligence. Though one knows of defects making the streets more dangerous, yet that fact does not compel him to avoid that way, if he acts within the bounds of reasonable care, except where the danger is so glaring and threatening that reasonable prudence would say the way could not be used in safety. Where defects are not necessarily dangerous due care requires nothing more than the adoption of natural and ordinary prudence.</p> <p>S. -: -: -: -: Evidence. On the evidence it is found that the sidewalk in question was not necessarily a menace to safety, particularly where one knew thereof and that the action of the plaintiff in using the walk without hold-tug the handrail or feeling his way, under the conditions and circumstances that made the known defects a menace to hia safety as well as his failure to take measures to avoid the danger, was negligence and stands forth undisputably as the producing cause of his injury.</p>

— Eon. Hermann Brumbaelc, Judge. (1) The court erred in admitting incompetent evidence on the part of plaintiff, some having no bearing on the issues and other evidence being only conclusions and opinions of the witness, and all being prejudicial to the defendant. Sparr v. Wellman, 11 Mo. 230; Wetherell v. Patterson, 31 Mo. 458.

— Hon. Hermann Brumbaclc, Judge. (1) The verdict is excessive, the result of passion and prejudice and should be set aside for that reason. Taylor v. Railroad, 185 M'o. 262; Hite v. Railroad, 130 Mo. 131; Whitsett v. Ransom, 79 Mo. 260.' (2) The court erred in giving instructions numbered 1 and 2 for plaintiff; they ought to have been refused.

— Hon. Henry L. McCune, Judge. (1) The trial court committed error in permitting plaintiff Hardin to testify as to the value of the corn chops at Kansas City. (2) If plaintiffs were entitled to recover at all, the' measure of their damages was the difference between the value of the corn chops at Babcock, Georgia, at the time they were delivered there, and the value at the time they should have been delivered. Faulkner v. Railroad, 51 Mr. 311; Klass v. Railroad, 80 Mo.

— Eon. Hugh Dabbs, Judge. (1) Appellant insists that the court erred in failing to sustain his motion to dismiss plaintiff’s suit for the reason that no statement or petition or pleading on 'which to base a cause of action was filed by the plaintiff. Brashears v. Strock, 46 M'o. 221; Metter y. Houston, 32 Mo. App. 451; Weese v. Brown, 28 Mo. App. 251; Butts y. Phelps, 79 Mo. App. 303; Swartz v. Nicholson, 65 Mo. 508; Rosenburg v. Boyd, 14 Mo.

— Eon. Joshua W. Alexmider, Judge. (1) There was no authority given cities of the fourth class to curb or gutter its streets by issuing tax-bills. Sec. 1592, Laws 1893, pp. 107-108; Knapp v. Kansas City, 48 Mo. App. '485; St. Louis v. Tel. Co., 96 Mo. 623; Hustonia v. Grubbs, 80 Mo. App. 433; Bank v. Sanford, 103 Fed. —; Skinker v. Heman, 148 Mo. 349.

— Eon. Benjamin J. Casteel, Judge. (1) Within its corporate limits the city of St. Joseph had “exclusive power to regulate, license, tax or suppress dramshops.” Sec. 5508, Subdiv. 21, R. S. 1899. Subdivision 17 of section 5508, Revised Statutes, 1899, gave the mayor and common council pow,er to “license, regulate, tax or suppress . . . saloons, tippling houses and dramshops,” and numerous other vocations.

— Hon. E (hoard P. Gates, Judge. (1) The court committed error in overruling defendant’s demurrer to the evidence at the close of the plaintiff’s case, (a) Because the evidence fails to show any negligence on the part of the defendant, (b) Because plaintiff’s evidence shows that his injury is attributed only to his own negligence.

— Hon. Andrew F. Evans, Judge. (1) The court should have given defendants’ instruction, in the nature of a demurrer to the evidence. The testimony in this case shows such negligence on the part of the plaintiff!, as to preclude a recovery. Giardina v. Railroad, 185 M'o. 330; Davies v. Railroad, 159 Mo. 1; Fellenz v. Railroad, 106 Mo. App. 154.

— Eon. James E. Slover, Judge. (1) The court erred in refusing defendant’s instruction in the nature of a demurrer to the evidence offered at the close of plaintiff’s case and again at the conclusion of all the testimony. Hecker v. Railroad 110 Mo. App. 165. (2) The court erred in giving instructions numbered one and two; asked by plaintiff, and each of them.

— Hon. John G. Parle, Judge. (1) The court should have given appellant’s instruction in the nature of a demurrer to the evidence at the close of plaintiff’s case and at the close of all the evidence in the case, (a) Respondent’s theory of the accident is contradicted by the physical facts of the case. Spiro v. Transit Co., 102 Mo.

— Hon. Henry L. McOune, Judge. (1) The petition does not state facts sufficient to constitute a cause of action for the following reasons: (a) Kerr only having an option, and never having any interest in the land, his assignment to Maxwell was the sale of a personal right and not a sale of an interest in land, so that a vendor’s lien could not arise.

— Hon. Thomas H. Shoehorn,, Special Judge. (1) ’ The court erred in permitting plaintiff to dismiss as to the co-defendant St. Joe & Grand Island Railway Company. The suit was to recover on an alleged joint contract. Plaintiff having brought both defendants into court, either was entitled to contribution from the other, on motion in that suit. (2) The court erred in overruling the demurrer to the evidence and in submitting the case to the jury.

— Hon. Hugh Dabbs, Judge. ’(1) Under the general doctrine of reimbursement and contribution as administered in courts both, of law and equity, plaintiffs are entitled to a judgment against tbe defendant for tbe amount sued for unless tbe evidence establishes some one or more of tbe affirmative defenses set up in tbe defendant’s answer, and which are valid -and subsisting defenses under the laws of this State, and which would relieve the defendant of liability. ■ 1 Pomeroy’s…

— Hon. Paris O. Stepp, Judge. (1) The circuit court had no jurisdiction over the subject-matter of this suit. The original petition and cause of action was based on section 1082 of the Revised Statutes of 1899 for failure to receive and ship a hog. The damages claimed was two dollars which was asked to be trebled, so the amount sued for was six dollars.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. '(1) From the collision of cars resulting in injuries to a passenger, under the adjudications in this State, arises the twofold presumption of the carrier’s negligence and of the exercise of ordinary care by the passenger, and casts upon the carrier the onus to show that the injury did not result from its negligence, or that the passenger was guilty of negligence contributing to its occurrence.

Francois Circuit Court.— Hon. Olías. A. Killian, Judge. (1) The Double Damage statute (Revised Statutes of 1899, section 1105), relating to the liability of railroad corporations- for a failure to erect and maintain lawful fences on the sides of its road, does not apply to street railway companies. Sams v. Railway, 174 Mo. 53; Johnson V. Railway, 104 Mo. App. 588; Stocks v. Transit Co., 106 Mo. App. 129; Godfrey v. Transit Co., 107 Mo. App. 193; Houts v. Transit Co., 108 Mo.

— Hon. James D. Barnett, Judge. • (1) The court should have directed a verdict for defendant because the publication was true and not… Held: at 'which one Vrooman presided; that Yrooman, with plaintiff’s knowledge, had provided collection boxes and distributed money to persons initiated in the secret, with instructions to make a rush for the collection boxes at the opportune moment, and drop in the money furnished them, for the purpose of creating enthusiasm and to induce…

Louis Circuit Court. — No». Robert M. Foster, Judge. (1) From the judgment of the probate court overruling the motion of the plaintiff, the administrator pendente Ute, to require the defendant, the executrix, to file her account with the court, and turn over the assets of the estate to the administrator pendente Ute, the right of appeal to1 the circuit court is conferred.

— Now. E. R. McKee, Judge. Authorized ordinances, duly enacted, have the force and effect of laws. Railroad v. Railroad, 105 Mo. 575; Jackson v. Railroad, 118 Mo. 199. Where a statute makes no exceptions the courts can make none. Endlich on Int. of Stat., sec. 17, p. 23; Kilpatrick v. Byrne, 25 Miss. 57; Richardson v. Harrison, 36 Mo. 96, at 101; Fairbanks y. Long, 91 Mo. 636; State v. Whitaker, 33 Mo. 458.

Louis City Circuit Court.— Hon. Warwick Hough, Judge. It is error to submit to the jury in an instruction an issue, which there is no evidence to support. There was no evidence that tbe car was driven at a dangerous and reckless speed. Holden v. Railroad, 177 Mo>. 456. There is nothing in defendant’s contention that plaintiff’s instruction numbered 4, allowing a recovery for the damage to the goods belonging to another which were damaged in this collision, was erroneous.

Francois Circuit Court. — Hon. Robt. A..'Anthony, Judge. The demurrer to tbe testimony as to tbe second count should have been .sustained, because the plaintiff’s own testimony showed that he and his agent, with his son saw the cattle and hogs wander upon their premises and knew that said cattle and hogs were their own and deliberately day after day saAV them destroying their crops, without attempting to prevent the alleged destruction, when they could easily have done so.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) It is a recognized rule that carriers have power to make and enforce reasonable rules and regulations, etc. “But the regulation must be so published that all persons who are to be affected by them, whether passengers or servants, can easily become informed of their existence and requirements; for no one can be bound by a rule or regulation of the existence or character of Avhich he had no means or opportunity of…

<p>DIAfORCE: Abandonment: Weight of Evidence.' In an action for divorce by the husband on the ground that the wife had abandoned him for one whole year without reasonable cause, where the evidence showed that the separation between the two was caused, not by any antipathy of the wife against her husband, but was brought about by the intermeddling of outside parties, and there appeared no reason why a reconciliation should- not be effected, the bill was properly dismissed.</p>

Louis Oity Circuit Court. — Eon. Jesse A. McDonald, Judge. Held: at which it was agreed that the property was worth more than thirty thousand dollars and that the company would not consummate the sale. The suit was commenced before a justice of the peace to recover one and one-forth per cent on thirty thousand dollars, the agreed purchase price„of the property.

Louis City Circuit Court. — Hon Jesse A. McDonald, Judge. (1) The well-settled rule of damages for the breach, by the vendee, of an agreement for the sale and delivery of personal property at a future day is the difference between the contract price and the market price at tíie time and place of delivery, called for by the contract, and it is quite immaterial whether the article contracted for is or is not in existence at the time of the contract, or whether it is one to be…

<p>1. APPELLATE PRACTICE: Timely Exception. Where an appeal was taken from an order of the trial court sustaining a motion for a new trial and a motion in arrest of judgment, hut the hill of exceptions did not show that exceptions were taken to the court’s action nor call for any evidence given on the trial, there was nothing for the appellate court to review except the record proper and, no error appearing therein, the judgment should he affirmed.</p>

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. (1) Metz never had been in possession .of this property and therefore could not maintain unlawful detainer. Ford v. Fellows, 34 M'o. App. 630; McCartney v. Alderson, 45 Mo. 35; Long v. Noe, 49 M'o. App. 19; Stewart v. Miles, 80 Mo. App. 24.

Louis City Circuit Court. — Hon. Or-rick Bishop, Judge. (a) It was not proved that tbe car could have been stopped after the motorman saw, or by the exercise of ordinary care could have seen, the wagon on the track, in time to have prevented a collision with it. Zurfluh v. Railway, 46 Mo. App. 642; Moore v. Railway, 176 Mo. 545. (6) The failure, if any, to provide the car with a signal light could not have been the proximate cause of the injury.

<p>CONFLICT OF LAWS: Judicial Notice. The courts of one State can not take judicial notice of the statute laws of a sister State; one seeking to avail himself of the statute of another State in the courts of this State must introduce such statute in evidence and prove it as any other fact in the case.</p>

Louis City Circuit Court; — Hon. Daniel (x. Taylor, Judge. The court erred in rendering judgment for respondent on the first count of its petition. In this count the respondent sued on a contract, and its own testimony showed conclusively that it had been guilty of a breach of a condition precedent thereof. It, therefore, was not entitled to recover, (a) Because performance of a condition precedent is a prerequisite to recovery.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) Tbe court erred in refusing to give tbe peremptory instruction asked by appellant at tbe close of all tbe evidence, (a) Tbis instruction should bave been given, as there was no evidence in tbe case showing, or tending to show, that tbe injuries complained of by respondent were due to any of tbe acts of negligence alleged in respondent’s petition. Cbrismer v. Telephone Co., 92 S. W. 378.

— Eon. Jas. L. Fort, Judge. (1) If defendant’s version of the alleged renting is true, his contract was clearly void because not in writing and not to be performed within one year from the making thereof. Plaintiff’s instruction numbered 1, prayed for, declares the law should have been given. R. S. 1899, sec. 3118; Butt v. Fox, 96 Mo. App. 137. Defendant’s instruction numbered 1 is plainly erroneous.

Louis City Circuit Court.--Now. Wm. M. Kinsey, Judge. (1) It devolves on plaintiff creditor to establish affirmatively that the capital stock of the Park Novelty Company was not in fact full paid. The stock on its face purporting to be full paid, there is no obligation on defendant stockholders to show that it was so full paid. The burden rests on the party alleging it to be not full paid. Bruce v. Driggs, 25 How. Prac. 71; Chase v. Lord, 77 New York 1, 6 Abb.

Louis City Circuit Court.— Eon. Moses N. Sale, Judge. (1) The demurrer to the first count to plaintiff’s second amended petition should have been overruled. Lewen v. Stone, 3 Ala. 485; Sherman y. Fitch, 98 Mass. 59; Springport v. Teutonia, 75 N. Y. 397; Railway y. Schuyler, 17 N. Y. 592; Voss v. Murray, 50 Ohio St. 19; Rosenbaum v. Foss, 4 S. Dak. 184; Paris v. Saunders, 3 Humph.

Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge. (1) The court erred in permitting respondents to introduce secondary evidence of the contents of letters. Price v. Hunt, 59 Mo. 262; Kuhn v. Schwartz, 33 App. 614; Cozens v. Barrett, 23 Mo. 546: (2) Self-serving declarations, hearsay, and impressions not competent as testimony. Spier v. Burlingame, 61 Mo. App. 87; Cot-trill v. Speiss, 23 Mo.

Louis City Circuit Court. — Eon. O’Neill Ryan> Judge. '(1) The court had no more authority or power to cal] these twelve men into the jury box again to consider a verdict in this case than he had to call any other twelve men from among those summoned for jury service and who, like these twelve, were waiting in the court room the further orders of the court. 17 Am. and Eng.

<p>Appeal from St. Louis City Circuit Court. — Hon. Horatio D. Wood, Judge.</p>

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. (1) The court erred in giving to the jury plaintiff’s first instruction, because said instruction authorizes a recovery for an act of negligence which the evidence failed to show caused or contributed in any way to the injuries from which deceased died. Meily v. Railroad, 107 Mo1. App. 466; Campbell v. Railroad, 175 Mo1. 181; Renov. Railroad, 180 M'o. 487, 488; Heinzle v. Railroad, 182 Mo. 559.

Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge. (1) A valid contract is formed, when a proposition made by one party, is accepted by the other to whom it is made. Neither party can withdraw from such a contract without subjecting himself to liability for the damage caused by the breach of contract. Lungstrass v. Ins. Co., 48 Mo. 201; Lungstrass v. Ins. Co., 57 Mo. 108; Lewis v. Ins. Co., 61 Mo. 534; Lapsley v. Howard, 119 Mo. 489; Stone v. Pennock, 31 Mo.

Louis City Circuit Court.— Hon. Wm. M. Kinsey, Judge. The notice of appeal given in this case is fatally defective because it misdescribes the judgment appealed from. The plaintiff is a corporation; the notice of appeal names an individual as the party plaintiff. State to use v. Hammond, 92 Mo. App. 235; Munroe v. Herrington, 99 Mo. App. 288; igo v. Bradford, 110 Mo. App. 670; Stone v. Baer,-82 Mo. App. 339; Drug Co. v. Hill, 61 Mo.

Louis County Circuit Court. — Hon. J. W. McElhinney, Judge. (1) Where an employee voluntarily abandons his position, he cannot recover damages for violation of contract for an unexpired term. Earp v. Tyler, 73 Mo. 617; Hanel v. Freund, 17 Mo. App. 618; Banse v. Tate, 62 Mo. App. 154. (2) It is a question for the court sitting as a jury to decide from the evidence whether the action of plaintiff was a voluntary abandonment of his position with defendant.

Louis City Circuit Court. — Now. Daniel D. Fisher, Judge. (1) The statute requires the belting, shafting and gearing of a machine to be guarded only if so placed as to be dangerous to persons employed thereon or thereabouts, while engaged in their ordinary duties; and then only if guards are practicable, and will not interfere with the effective operation of the machine. R. S. 1899, sec. 6133; Bair v. Heibel, 103 Mo. App. 621; Lore v. Amer. Mfg.

Louis City Circuit Court. — Hon. Jesse A. McDonaldJudge. (1) The plaintiff cannot recover under the agreement of October 22, 1897, because it was not a contract made for her benefit, even though she might have suffered loss in consequence of the non-performance of the same by the parties thereto. State v. Railroad, 125 Mo. 596; Howsmon v. Water Co., 119 Mo. 304; Ellis v. Harrison, 104 M'o. 270; Carpenter v. Realty Co., 103 Mo. App. 480; Packett Co. v. Railroad, 35 Mo.

Louis City Circuit Court. — Hon. Mouses N. Sale, Judge. (1) There was no conversion. Even conceding that the evidence tends to show an intentional delivery of the car of iron in question by defendant to Kelley and an appropriation to its own use by defendant, of what was not used by Kelley.

Louis City Circuit Court. — Hon. Roht. M. Foster, Judge. (1) (a) Words used in a contract must be given tbeir plain, ordinary, and popular meaning, unless from the context or by nsage they have acquired a different meaning. R. S. 1899, sec. 4160; Ruby v. Coal & Mining Co., 21 Mo. App. 159; Fruin v. Railroad, 89 Mo. 397; Stettauer v. Hamlin, 97 111. 312; Steyer v. Dwyer, 31 Iowa 20; 17 Am. & Eng. Ency. of Law (2 Ed.), p. 11.

Louis City Circuit Court.— Hon. O’Neill Ryan, Judge. (1) The defendant Illinois Central Railroad Company’s demurrer to the evidence should have been sustained because, when all the evidence is examined, it will be found that it failed to show that the defendant Illinois Central Railroad Company was guilty of any negligence in the handling of plaintiff’s goods, or that any damage whatever to such goods occurred upon the line of said defendant. Flynn v. Railroad, 43 Mo>.

Louis City Circuit Court. — Hon. Robt. M. Foster, Judge. The obligations and liabilities of plaintiffs under the contract sued on were very different from and much broader and more extensive than under the contract with the city. Bank v. Graham, 74 Mo. App. 256; Houck v. Frisbee, 66 Mo. App. 21; Wulz v. Schaeffer, 37 Mo. App. 551.

<p>Appeal from St. Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge.</p>

Louis City Circuit Court. — Eon. Robt. M. Foster, Judge. . Statement. — This is an action to recover the death benefit provided for in a policy of accident insurance issued by the defendant company.

Louis City Circuit Court. — Hon. G. Orriclc Bishop, Judge. (1) The trial court was without jurisdiction or authority to make any order on the defendant to pay plaintiff in connection with her appeal from the court’s decree against her in her suit for maintenance, (a) At common law the only way a wife could enforce her right against her husband for maintenance was to pledge his credit for necessaries with third parties. Schouler on Domestic Relations (5 Ed.), sec. 61, p. 98.

Louis City Circuit' Court. — Hon. Jesse A. McDonald, Judge. (1) The court erred in refusing defendant’s instruction in the nature of a demurrer to the evidence at the close of plaintiff’s case and in refusing a similar instruction at the close of the entire case. (2) The court erred in granting plaintiff’s first instruction.

Louis Court of Criminal Correction. — Hon. Hiram N. Moore, Judge. (1) The amended, information should have been quashed, because, (a) It does not sufficiently follow the language of the statute under which it is framed. The defendant should have been brought directly within all the material words of the statute and nothing left to intendment.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The paper writing introduced by plaintiff did not conform to the allegations of the petition and should not have, been admitted in evidence. It was not a promissory note, and the characterization of it as a note by the petition by the plaintiff’s attorney during that trial and by the court, in its instructions, was error.