Volume 121 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. Daniel 6r. Taylor, Judge. (1) The court erred in refusing the instruction in the nature of a demurrer to the evidence offered by defendant at the close of plaintiff’s evidence in chief, and also at the close of all the evidence, (a) There was no evidence of any negligence on the part of the defendant. Hyde v. Railroad, 110 Mo. 280; Knapp v. Hanley, 108 Mo. App. 360.

Louis City Circuit Court. — Hon. G. Orrick Bishop, Judge. (1) Where one party, having several claims of the same character against another, fails to bring suit on any of such several claims, prior to the maturity of all, he makes his account open, running and entire, and cannot split it up into several causes of action. Morrison v. DeDonato, 76 Mo. App. 643; Green v. Yonder Ahe, 36 Mo. App. 394.

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. (1)' In a suit by a real estate broker to recover commission or other compensation for negotiating the sale or mortgage of real estate, if the owner denies the authority under the statutes, the agent must show his authority in writing from the owner, or his attorney in fact, appointed in writing, and can recover .no commission without such authority. Ses. Laws of Mo., 1903, secs. 1 and 2; Trust Co. v. Niggeman, 119 Mo.

— Hon. Argus Oox, Judge. The court erred in not permitting plaintiff to open and close the argument to the jury. In our statutory action of replevin the burden of proof is always on the plaintiff, in the first instance to show that he was at the time of the commencement of his suit entitled to the possession of the property, which entitles him to open and close the argument, and it was a reversible error to deny him this right.

Louis City Circuit Court. — Eon. Robert M. Foster, Judge. (1) The sole question in the case was tO' whom credit was given by the plaintiff, whether to Camilla S. Mc-Manus or to Thomas Ward McManus.

Louis City Circuit Court. — Hon. O’Neill .Ryan, Judge. (1) Defendant’s exceptions, if any, to the action of the court in overruling its motion for a new trial on March 8,1905, were not preserved by a bill of exceptions filed during said February term. The court has no power to permit a bill for such exceptions to be filed on January 19, 1906, at the December term, 1905, of said court.

<p>1. CONTRACTS: Concession to Make and Sell Photographs: Judicial Notice. Courts will take judicial notice of the science or art of photography and where a photographer was granted hy lease the exclusive privilege of “taking and selling photographs” within the limits of a certain concession known as the Tyrolean Alps at the Louisiana Purchase Exposition, the court will take judicial notice that the taking of photographs included the making of silhouettes, and the granting to another of the privilege to make such pictures hy photographic process would he a violation of the concession agreement.</p> <p>2. -: -: “Similar.” And where the agreement provided that the lessor should not grant “similar” privileges to any other, that stipulation was not violated hy granting to another the privilege of cutting silhouettes from black paper with scissors and pasting them on pieces of white paper and selling the pictures thus made within the limits of the concession; that process of making silhouettes was not “similar” to the process of making them with photographic apparatus.</p>

Louis City Circuit Court. — Hon. Jesse A. McDonald> Judge. The court erred in allowing the case to go to the jury. Wojtylak v. Coal Co., 188 Mo. 261; Knorpp v. Wagner, 93 S. W. 961. (1) Where the servant has apprehensions of the danger of the place where he is requested to work, but remains, upon the assurance of the foreman in charge of the work and in charge of the servant, that it is safe, and the servant is injured, the master is liable for such injuries.

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judg( (1) By the common law a landlord may, at . Ms option, regard the act of the tenant in holding over either as a trespass or as a renewal of the original lease. Quinette v. Carpenter, 35 Mo'. 502; Finney v. St. Louis, 39 Mo. 178; Hunt v. Bailey, 39 Mo. 257; Ins.

<p>Appeal from St. Louis City Circuit Court. — Eon. Demiel G. Taylor, Judge.</p> <p>The promise and undertaking of respondent to pay outstanding accounts of the trustee in bankruptcy was for the benefit of creditors holding those accounts and they or their assignee (the appellant) could maintain an action thereon. Ellis v. Harrison, 104 Mo. 270; Winn v. Lippincott, 125 Mo. 528; Kansas City, etc., Co. v. Thompson, 120 Mo. 218; Howsmon v. Water Co.; 119 Mo. 304; Bank v. Edwards, 84 Mo. App. 462.</p>

<p>1. DRAMSHOPS: Clubs: Sale of Intoxicating Liquors to Members. An incorporated club is not a person within the meaning óf the dramshop act and may dispense intoxicating liquors to its members, but a club cannot be organized or used” as a mere scheme to sell liquors” in evasion of the dramshop act.</p> <p>2. -: -: -: Where a club was incorporated in a town which had adopted the local option law and operated in a building-belonging to a saloon keeper, who had formerly occupied it for a dramshop, and such saloon keeper was afterwards made its business manager and controlled its business affairs, receiving and disbursing revenues as he sáw fit, making only a perfunctory accounting to the board of directors of the club, and where a bar was maintained in the club building and liquors sold as in an ordinary dramshop except that sales were confined to members, and where the members paid no dues but only paid fifty cents as initiation fee, the club was a mere scheme to evade the dramshop act; the fact that it had certain athletic paraphernalia and certain social features was not sufficient excuse for the unlawful manner of selling intoxicating liquors.</p>

Original Proceeding by Quo Warranto. (1) The charter of this club, if not void on its face, is so nearly so that it must affirmatively prove that it is, in practice, fulfilling a benevolent, or a religious, or a scientific or an educational function. State ex rel. v. Lesueur, 99 Mo. 552; State v. Brawner, 15 Mo. App. 597; State ex rel. v. McGrath, 95 Mo. 183. (2) The club is operated for pecuniary profit. In re St. Louis Institute of Christian Science, 27 Mo'.

<p>1. LANDLORD AND TENANT: Prima Facie Case. In an action for rent, the evidence is examined and held sufficient to support a finding hy the trial court that the contract of lease was made for the benefit of the defendant.</p> <p>2. -: Evidence: Admissions. In an action for rent against two defendant corporations, the admissions in connection with the rent of one who was an officer in both companies and the ruling spirit in both, were properly admitted in evidence against them.</p>

<p>Appeal from. St. Louis City Circuit Court. — Hon. John W. McElhinney, Judge.</p>

.Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) Where parties are not dealing at arms-length or on an equal footing; or where one party to the contract being ignorant of the value of a commodity, relies upon the other to inform him, that other, if he speaks at all, must speak the truth; and if he speaks falsely the general rule regarding “dealers’ talk” does not apply. McBeth v. Craddock, 28 Mb. App. 896; Stones v. Richmond, 17 Mo.

Louis City Circuit Court. — Eon. Wm. Kinsey, Judge. Where injury happens to a passenger, by any unusual action of the carrier’s vehicles, such as a derailment, collision, breaking or giving way of any part of •the vehicle causing violent and unusual shocks, or jolts, explosions — in fact, anything which does not happen in the usual conduct of the carrier; in such case, a prima facie case of liability, in favor of the passenger, is made; and the proof of this fact alone makes…

David H. Eby, Judge. (1) An estate can only be bound, by a contract of the executor for necessary services, actually performed by an attorney, for, and beneficial to, the estate. Held: which purchaser and price were acceptable to Col. Lonergan. He declined to consummate the sale to this purchaser, however, for the reason hereafter given.

— Hon. Henry C. Riley, Judge. Plaintiff has an adequate remedy at law. If the ordinance under and by virtue of which his one heifer was impounded, was invalid, the question of its invalidity and legality can and should be tested by the proper action at law, replevin. Spitler v. Young, 63 Mo. 42; Shy v. Richards, 79 Mo-. App. 661; G-ilmore v. Harp, 92 Mo. App. 77; Jeans v. Morrison, 99 Mo-. App. 208; Mc-Vey v. Barker, 92 Mo. App. 498.

— No». E. M. Bearing, Judge. (1) All the instructions given on part of plaintiff were erroneous. The water which caused the injury was surface water, and, therefore, defendants are not liable. Johnson v. Railroad, 111 M'o. App. 378; Abbott v. Railroad, 83 Mo. 280; Jones v. Railroad, 18 Mo. App. 251. (2) Water supplied by rain, although running through a natural depression, is nothing more than surface water. Gray v. Schreiber, 58 Mo. App. 177; Schneider v. Railroad, 29 Mo.

— Hon. James T. Neville. Judge. (1) The petition does not set forth a cause of action, .in that it states the damages claimed and sustained, was the amount of the difference' between the value of the property and the incumbrance upon it. States no other matter of damages and tenders no other issue. Upon the facts stated, plaintiff was not entitled to damages measured in that way. Miltenberger v. Morrison, 39 Mo. 78; Rush v. Brown, 101 Mo. 586.

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) (a) Whether a contract purporting to be based upon correspondence was or was not actually consummated is a question for the court and not for the jury. Wire Mfg. Co. v. Broderick, 12 Mo1. App. 378; Botkin v. McEntire, 81 Mo. 557; Whedon v. Ames, 28 Mo. App. 243; James v. Bottle Co., 69 Mo. App. 207.

<p>1. PRACTICE IN CRIMINAL CASES: Information: Affidavit: Justice of the Peace. An information, filed by tbe prosecuting attorney before a justice of tbe peace is sufficient to sustain a conviction, tbougb not accompanied by tbe affidavit of bimself or any other person; fbe rule requiring an information to be verified when filed in tbe circuit court does not apply in a proceeding before a justice of tbe peace, under section 2750, Revised Statutes of 1899.</p> <p>2. —:-: Remarks of Court: Timely Exception: Bill of Except tions. Exceptions to remarks of the court during the progress of the trial in a criminal case can not be reviewed unless incorporated in the bill of exceptions; they can not be brought before the Appellate Court for review by affidavits of bystanders.</p> <p>3. -: Evidence: Reputation. In a prosecution for selling liquor without a license, where the defendants put their reputation in issue as law abiding citizens, it was permissible on cross examinations of the character witnesses to show the defendants had pleaded guilty in the United States District Court for selling liquor without a government license, where the issue was whether the liquor sold was intoxicating liquor.</p>

Louis City Circuit Court. — Eon. Wm. E. Kinsey, Judge. This is an action of trespass for the cutting of timber and before such an action can be maintained, a plaintiff must show either that he had actual possession of the land at the time of the trespass (in which event he need not show actual title in himself), or if the land be in the actual possession of no one then he must show that he had actual title to the land, which combination of non-actual possession by anyone and…

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) The demurrer to the evidence should have been sustained for the reason: (a) That there is no evidence that a majority of the vestry in meeting- assembled gave authority to Doctor Trotman to direct the architects as to the kind of building and character of materials to be used. Cann v. Church of the Redeemer, 111 Mo. App. 161.

Louis County Circuit Court. — No». J. W. McElhinney, Judge. (1) The apparatus sold to the hotel company do not entitle the plaintiff to a mechanic’s lien; (1) because there is no such attachment to the freehold as makes them fixtures; (2) because there is no evidence of intention that they should become permanently attached to the freehold. Rogers v. Crow, 40 Mo. 91; Electric Co. v. Gottlieb, 112 Mo.

<p>1. CONTRACTS: Public Policy: Restraint of Trade. The old doctrine that agreements in restraint of trade were void without exception has been greatly modified by modern adjudications; so that the courts will now enforce covenants which impose restriction on the right to trade, not only when the restraint is special, but when it is general throughout the entire State or country, provided the agreement is founded upon a sufficient consideration and is not unreasonable in view of the nature and extent of the business of the covenantee.</p> <p>2. -: -: -: Injunction. Where a party who had established a profitable business, sold for a valuable consideration the good will and the right to the use of her name, and agreed for a certain period not to “engage in the same character of business” within a certain territory, the contract was valid, and its violation was properly restrained by injunction.</p>

Louis Oitv Circuit Court. — Hon. Robert M. Foster, Judge. The exclusion of the evidence as to what transpired at. tlie meetings of the board of directors of the defendant was erroneous. Goodwin v. U. S. Annuity, etc., CO'., 24 Conn. 601; Novelty Mfg. Co. v. MacAlister, 40 Mich. 84; Gilson, etc., Co. v. Gilson, 51 Cal. 341; Tibbats v. Mt. Olympus, etc., Co., 10 Wash. 329; Cameron v. Bank, 34 S. W. 179; Soudek v. Tennessee, etc., Co., 1 Baxt.

Louis City Circuit Court. — Hon. James ' E. Withrow, Judge. (1) If, Avhen Tliomas Wightman applied to appellant for a final card -withdrawing from the order and accepted such final card, he understood the nature of the transaction and the effect oí his acts, his acts are valid, and binding and the respondent cannot avoid them. Cutler v. Zollinger, 117 Mo, 101; McKissick v. Groom, 148 Mo. 469; State ex rel. v. Grand Lodge A. O. U. W., 78 Mo. App, 556; Wells v. Ben.

Louis City . Circuit Court;. — Hon. Moses N. Sale, Judge. (1) There is a distinction between an irregular appeal and no appeal at all; it is only in the latter class of cases that the circuit court acquires no jurisdiction. Curtis v. Tyler, 90 Mo. App. 345; Moulder v. Anderson, 63 Mo. App. 34. (2) The appellee may waive the defect in the appeal, if he choose, and does so by proceeding without objection. Welsh v. Railroad, 55 Mo>. App. 599; Long Bros. v. Coal Co., 56 Mo.

Louis City Circuit Court. — Non. Jesse A. McDonald, Judge. “Where a contract is not prohibited by law and has been fully executed by the person rendering the services, he may recover their value from the person who received their benefit, though in rendering the services the person was guilty of a misdemeanor.” Trust Co. v. Niggemann, 119 Mo. App. 56; Prietto v. Lewis, 11 M'o. App. 600; Prince v. Baptist Church, 20 Mo. App. 332; Truesdale v. McPike, 25 Mo.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) As defendant contended that the receipt and agreement of April 12, 1901, must be construed by the court and not by the jury, he cannot, after the court sustained his view and excluded evidence offered by plaintiff, contend that a question of fact arose which should have been submitted to the jury. Lee v. Hassett, 39 Mo. App. 67; Bielman y. Railroad, 50 Mb. App. 151; White y. Nelson Mfg.

Louis City Circuit Court. — No». Matt. Cf. Reynolds, Judge. (1) The court erred in refusing to give to the jury defendant’s instruction at the end of plaintiff’s case, which instruction was in the nature of a demurrer to the plaintiff’s evidence. Yeg'dy v. Rohinson, 20 Mo. App. 199; Witte v. Quin, 38 Mo. App. 681. (2) The court erred in refusing to give to the jury defendant’s instruction No. 1. Curby v. Rook & Stationery CO'., 76 Mo1.

— Eon. David E. Eby, Judge. (1) Tbe cost of the witnesses summoned to testify on the issues involved in the first and second counts as well as the fees for subpoenas and serving these witnesses should be taxed against the plaintiff. R. S. 1899, sec. 1550; Turner v. Johnson, 95 Mo. 452. (2) The court also erred in refusing to'disallow the fees of the two witnesses, H. R. and John Cline. These witnesses were clearly not entitled to any mileage.

<p>Appeal from St. Louis City Circuit Court —Eon. Jesse A. McDonald, Judge.</p> <p>(1) The contract sued on in this case is within the Statute of Frauds. Burrell v. Highleman, 33 Mo. App. 183; Lammers v. McGeehan, 4-3 Mb. App. 664; Pratt v. Miller, 109 Mo. 78. (2) The Statute of Frauds may be raised by a peremptory instruction at the close of plaintiff’s case. Extract Co. v. Grocer Co., 90 Mo. App. 53.</p> <p>The Statute of Frauds (sec. 3419, Revised Statutes 1899), does not apply, in this case. The contract was not for goods, wares and merchandise. Lane v. Melville, 3 U. C. Q. B. O. S. 127; Finney v. Apgar, 2 Vroom. 268; Crockett v. Scribner, 64 M'aine 449; Prescott v. Locke, 51 N. H. 96; Goddard v. Binney, 115 Mass. 454; Meincke v. Falk, 55 Wis. 427. In the absence of any pleadings other than a mere statement filed by a plaintiff before a justice of the peace, the Statute of-Frauds cannot be first invoked in the circuit court by an instruction in .the nature of a demurrer to the evidence. Cash v. Clark, 61 Mo. App. 640.</p> <p>Statement. — This case originated before a justice of the peace. The plaintiff is a tailor in the city of St. Louis. He received an order from the defendant for a coat and vest, the price agreed upon being $72.50. The coat was to be a Prince Albert with a wide lap> in front, broad lapels and full skirt. The testimony of plaintiff and his witnesses tended to prove that the defendant called upon him at his place of business and ordered a coat and vest at the price mentioned, instructing him that he desired the coat to be made with a wide lap in front and lapels somewhat broader and the skirt somewhat fuller than was then being worn. Plaintiff attempted to dissuade the defendant from his notion in that respect but defendant insisted the coat should be made as directed and he so made the same. Upon the garments being completed, they were delivered to the defendant and he returned them for alterations. In accordance with defendant’s request, plaintiff made the alterations required and delivered the garments a second time and within a few days thereafter, the defendant returned them for further alterations. After having tried them on the defendant and examining them again plaintiff discovered that they were perfect fitting garments, as he says, and that he could not improve thereon in that respect, whereupon he so announced to the defendant and declined to further alter the same. Defendant thereupon refused to accept them. Several reputable tailors who had examined the garments on the defendant, testified that the fitting and workmanship were perfect; that the only possible objection was to the coat, i. e., the wide lapels and full skirt, and as said, these were so made in accordance with defendant’s instruction.</p> <p>The defendant’s testimony tended to prove that he ordered the coat made with a wide lap, broad lapels and full skirt as indicated, and that the plaintiff did not malee the coat as ordered. He asserts that the garments made him look old-mannish and refused to accept them. Plaintiff having declined to alter them to suit, he continued in his refusal to accept them.</p> <p>The trial was had before the court, a jury being waived. There was testimony pro* and con on the issues and it was conflicting. The testimony as to the contract was introduced by the plaintiff without objection of any sort from the defendant. At the conclusion of the plaintiff’s case, defendant requested the following instruction, which the court refused:</p> <p>“The court instructs the jury that the evidence introduced by the plaintiff in this case, shows that the contract sought to be recovered upon is within the statute of frauds and that the provisions of said statute have not been complied with. Your verdict, therefore, must be for the defendant.”</p> <p>Exception was saved, and after the overruling of proper motions for review, the case comes here by appeal.</p>

— lion. F. (J. Johnston, Judge. Statement. — This action is to recover seven hundred and seven dollars and seventy-two cents, the value of ten hundred and fifteen bushels of wheat, alleged to have been embezzled and converted by defendants.

Louis City Circuit Court. — Now. Jesse A. McDonald, Judge. (1) The petition declared upon a draft payable to the order of plaintiff. The draft offered in evidence was payable to “F. D. Peet, Cashier.” This draft does not support the allegation of the original petition and there was a complete failure of proof. Gray v. Eace, 51 Mo. App. 553; Beck v. Ferrara, 19 M'o. 30; Hobbs v. Bank, 97 Ga. 524; Thompson v. Stetson, 15 Neb'. 112; Christian College v. Hendley, 49 Cal. 347.

— Hon. W. N. Evans, Judge. A judgment rendered outside of the pleadings in a case, and outside of the issues framed, and unsupported by the evidence, is improper and will be reversed. In such case the matter of the judgment is not litigated, and the judgment could only be rendered by consent. It is no answer to say in-such case that the party is not prejudiced. He has a right to complain if the judgment is not within the pleadings. Smith v. Railroad, 92 Mo. App. 41.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. .(1) For either party to a marriage to refuse the other his marital rights, withoxit just cause, constitutes matrimonial desertion. 1 Bishop on Marriage, Divorce and Separation, p. 697, sec. 1678; 1 Nelson on Divorce and Separation, sec. 71; Loyd’s Law of Divorce, p. 170; Sisemore v. Sisemore, 17 Ore. 542; Whitfield v. Whitfield, 89 Ga. 471; Stein v. Stein, 5 Colo. 55; Dyer v. Dyer, 5 N. H. 271; Fitts v. Fitts, 46 N.…

<p>Appeal from St. Louis City Circuit Court. — Eon. Jaynes E. Withrow, Judge.</p>

<p>1. PRACTICE: Instruction: “From the Evidence.” In an action for assault, where actual and punitive damages were asked, an instruction authorizing a verdict for plaintiff for actual damages on a finding of certain facts “from the evidence,” then authorized an assessment of punitive damages on a finding that the assault was made wantonly and maliciously without requiring that finding to he “from the evidence”; such instruction was not erroneous because there was no occasion to repeat the caution that the finding must be “from the evidence.”</p> <p>2. -: -: Defining Terms: Wanton. In an action for damages, where a verdict for punitive damages was authorized on a finding that the injury was “wantonly and maliciously” inflicted, and where the term “malice” was properly defined in other instructions, it was not necessary to define the meaning of the term “wanton” any more than other ordinary words used.</p> <p>3. DAMAGES: Punitive Damages: Excessive Verdict. In an action for damages caused to plaintiff by the assault and battery of the defendant, where the evidence showed that the plaintiff was a small man over sixty years of age and the defendant was a large man of thirty-seven years of age, that defendant assaulted plaintiff without cause, knocked him down, kicked him into unconsciousness and set his dogs on him, a verdict for $500 punitive damages was not excessive.</p>

<p>1. LOCAL OPTION: Clubs; Selling Liquor to Members. While a bona fide social club with a limited membership actually-owning its liquors may dispense such liquors among its members for pay without violation of the law relating to the sale of intoxicating liquors in counties which have adopted the local option law, when such a club is not bona fide and is intended only as a scheme or device for the purpose of selling liquor, sales by such clubs are contrary to law and a quo warranto proceeding will lie to revoke its charter.</p> <p>2. -: -: -: Where a club was organized, in a county which had adopted the local option law, for the ostensible purpose of the physical development of its members and engaging in athletic sports, under article 11 of chapter 12, Revised Statutes 1899, and was incorporated by pro forma decree, and where the club leased for its purpose a building formerly occupied by tbe manager and leading spirit of the club, as a saloon, parts of which building were fitted up with pool table and athletic equipments, with bar where liquor was sold to members in one apartment, and where the evidence showed that the manager, the former saloonkeeper, had entire control of its business, was paid a salary but kept no account of the moneys received from sales of liquor, and it was shown by the testimony of many of the members that they joined the club merely for the purpose' of convenience in getting their drinks, that no athletic sports of any kind were engaged in, the club was incorporated and conducted as a scheme to evade the local option law and an order annulling its charter and franchise is necessary..</p>

— Eon. J. G. Sheppard, Judge. It is urgently insisted by counsel for appellant that this cause should be reversed for the following reasons: First.

Louis City Circuit Court. — Eon. J. B. Kinealy, Judge. The court erred in giving the third paragraph of the second instruction found at pages 35 and 36 of the abstract of record. She was only entitled to recover for any loss or injury that she will with reasonable certainty suffer in the future. She cannot recover for such damages as she may possibly suffer in the future.

—.Hon. J. D. Barnett, Judge. (1) The defendant acted merely as an instrument in the performance of an appointed service. His employment was rather a service than a trust. The plaintiff did not rely upon him for counsel and direction, hence defendant did not owe to plaintiff the obligation of an agent in the general sense. Mining Co. v. Fox, 39 N. C. (4 Ired. Eq.) 61; Grady v. O’Reily, 116 M'o. 346; Ins.

<p>APPELLATE PRACTICE: Transcript of Record: Record of Filing Motions for New Trial. Where,, on appeal from an order granting a new trial and arresting the judgment, the transcript does not show the order hut only shows the judgment which was arrested, and where the record proper does not show the filing of the motions for new trial and in arrest, such defects are fatal to the appeal and it should he dismissed.</p>

— No». Henry 0. Pepper, Judge. (1) It is the duty of the circuit court, on appeal from the probate court, to try the cause, de novo, and to render such judgment as should be rendered under the evidence. R. S. 1899, sec. 285; Perry v. McGowan, 68 Mo. App. 612.

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. (1) A court of equity, in a direct proceeding between the parties to the record, will set aside and vacate any judgment, which is obtained by fraud practiced by the prevailing party.

<p>Appeal from St. Louis City Circuit Court. — Hon. Walter B. Douglas, Judge.</p> <p>(1) The court erred in giving plaintiff’s instruction numbered 1. Smith v. Hardesty, 31 Mo. 411; Hol-Averson v. Raihvay, 157 Mo'. 216 and cases therein cited; Oates v. Railway, 168 Mo. 535; Guyer v. Railroad, 174 Mo. 344; Moore v. Raihvay, 176 Mo. 528; Railroad v. Railroad, 78 M'o. App. 253. (2) The court erred in giving plaintiff’s instruction numbered 2. Authorities above cited under point 1. Kries v. Railroad, 148 Mo. 321. (3) The court erred in giving plaintiff’s instruction numbered 3. Fisher v. Lead Co'., 156 Mo. 479. (4) The court erred in refusing defendant’s requested in struction B. Grocer Co. v. Railway, 89 Mo. App. 534; Cogan v. Raihvay, 101 Mo. App. 179.</p> <p>.(1) A mere omission in an instruction given for one party is harmless if the element omitted is contained in an instruction given for the other party. Edivards v. Railroad Co., 94 Mo. App. 36; Anderson v. Railroad Co., 161 Mo. 411; Perrette v. Kansas City, 162 Mo. 238. (2) As to the objection to plaintiff’s instruction numbered 3, it is urged that the court erred in giving this instruction because it was a mere abstract statement of the laAV. (3) And the instruction is a correct statement of the law, and is definitive of nothing more than the ordinary care required of a motorman of this car. Sluder v. Transit Co., 88 S. W. 643; Kolb v. Transit Co., 102 Mo. App. 143; Gebhart v. Transit Co, 97 Mo. App. 373.</p>

Louis City Circuit Court. — Eon. Daniel G. Taylor, Judge. The complaints urged by appellants being all based upon the argument that the jury found against the weight of the evidence, and the evidence being conflicting, the judgment must be affirmed. Holloway v. Kansas City, 184 Mo. 19; Yeale v. Green, 105 Mo1. App. 182.

— No». James T. Neville, Judge. (1) By. the express terms of the benefit certificate in this case, the policy, the articles of incorporation, constitution and by-laws, rules and regulations of the defendant, and the application for membership, including the physician’s report, constitute the exclusive contract between the defendant, the member, and the beneficiary. And members of a fraternal association are conclusively presumed to know its laws.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. Plaintiff was entitled to a decree and the court erred in refusing it: He was the first to use and, therefore,- exclusive owner of the wrapper or carton in question. Hopkins on Trademarks, 244, 258; Bishop Case, 128 Mo. 381; Drummond v. Tinsley, 52 Mo. App. 27; Gaines v. Whyte, 107 Mo. App. 517. In case of infringement plaintiff need not prove he has actually been damaged. Conrad v. Uhrig, 8 Mo. App, 277.

— Non. James N. Slover, Judge. (1) The petition fails to state a cause of action because : (a) The petition shows upon its face that plaintiff is not a mere stakeholder; and fails to allege that plaintiff is likely to be vexed by two or more suits by two or more different parties, going on at the same time, (b) The petition shows upon its face that plaintiff received the property in controversy as the agent of appellant, and the relation of principal and agent existed…

— Hon. W. B. Teas dale, Judge. (1) The contention of attorneys for respondent based upon the allegations in' reference to speculative deals by the Montgomery Grain Company is so clearly without foundation in the evidence in the case to sustain it that it seems to us this could not have been the ground for setting aside the judgment of the court and granting a new trial.

— Hon. W. W. Graves, Judge. (1) The court erred in allowing the case to go to the jury at all. (a) The plaintiff failed to prove the case alleged in its petition, (b) Under the undisputed testimony the plaintiff was not entitled to recover. DeBolt v. Railroad, 128 Mo. 505; Spotts v. Railroad, 111 Mo. 384; Biddings v. Railroad, 33 Mo. App. 534. (1) The plaintiff was lawfully in the car where it had been placed by the defendant to be unloaded for the purpose of unloading it.

— Eon. John Gr. Parle, Judge. (1) The trial court erred in overruling the defendant's objection to plaintiff's petition for the reason that the same did not state facts sufficient to constitute a cause of action. Telegraph Oo. v. Kreuger, 30 Ind. App., 28. (2) Plaintiff’s reply in this case was wholly insufficient in law and defendant’s allégations in its second defense set out in its answer, stand admitted.

— Hon. W. B. Teasdale, Judge. (1) The policies were assignable. Insurance Co. v. Flack, 3 Md. 341; Insurance Co. v. Armstrong, 117 U. S. 591; Bank v. Abernathy, 32 Mo. App. 211. (2) The execution of the assignment and note and ownership of the policies by the bank were abundantly proved.

Livingston Circuit Court. — Hon. Joshua? W. Alexander} Judge. (1) While a person, for whose benefit a contract is made, between other parties, may enforce such promise, against the promissor, yet to enable him to do so, such promise must be an absolute and unconditional promise, based upon a valid consideration.

— Hon. John P. !Butler, Judge. (1) The court erred; first, in receiving any evidence at the opening of the case, because the petition does not state facts which, if true, would constitute a cause of action against the defendant; second, in refusing defendant’s demurrer at the close of plaintiff’s case; third, in refusing to give defendant’speremptoryinstruction at the close of all the evidence.

— Eon. Paris O. Stepp, Judge. (a) The statute requires that a notice of the election shall he published in a specified manner before a legal election can be held. Sec. 3029. The entire record of the county court certified by the county clerk was offered in evidence by the defendant. It fails to show any publication of the notice, nor Avas there any other proof offered shOAving such notice.

— Hon. Paris G. Stepp, Judge. (1) The cross-examination of defendant’s witnesses Hogan and Gillespie was improper and the overruling of defendant’s objections to it, was reversible error. The whole tenor and purport of the cross-examination of these two witnesses by the prosecuting attorney was to show the defendant’s guilt of the offense on trial, by showing that he had at other times sold whiskey, and that he kept it for sale — whether legally or illegally does not appear.

- — Hon. Chesley A. Mosman, Judge. (1) Respondent alleged that lie was a resident taxpayer of the city of. St. Joseph, Mo., which entitled him to prosecute this suit but there is no proof whatever on this subject which necessarily reverses the case. Davis v. Hartwig, 94 S. W. 513; State v. Berkley, 140 Mo. 186; State ex rel. v. Boal, 46 Mo. 529; 23 Ency. of Law, 616 and cases cited.

— Hon. Henry M. Ramey, Judge. (1) If Tyler signed his name ón the back of the note after its execution, he was not a co-maker, but a guarantor. Corbyn v. Brokmeyer, 84 Mo. App. 649; Adams v. Huggins, 73 Mo. App. 143; Burnham v. Gosnell, 47 Mo. App. 637; Ilagg v. Linnenfelser, 59 Mo. 336. (2) The undertaking of a guarantor is his own separate and independent contract, distinct from that of the principal debtor. Parmalee v. Williams, 71 Mo. 410; Reagan v. Williams, 88 Mo.

— Hon. J. B. Johnson, Judge. (1) Tbe admission of incompetent evidence is reversible error if its rejection might change the result. Holmes v. Farris, 97 Mo. App. 305. (2) A verdict not supported by substantial evidence will he set aside. (3) A right of setoff is not payment. 22 Am. and Eng. Ency. La,w (2 Ed.), p. 576; Barton v. Wilkins, 1 Mo. 74.

— Eon. John P. \Butler, Judge. (1) Opinions, conclusions and deductions as to existing conditions, and opinions or predictions as to future happenings are alike incompetent when applied to physical facts which can be described to the jury. Such expressions usurp the province of the jury. Muff v. Railroad, 22 Mo. App. 584; Kendall Oo. v. Bain, 46 Mo. App. 581; Madden v. Railroad, 50 Mo. App. 666; Krueger v. Railroad, 84 Mb. App. 358; Kirby .v. Railroad, 85 Mo.

— Eon. Eat. M. Shelton,- Judge. (1) It was manifest error for the court to refuse to permit appellant to show that respondent directed what work should be done on his farm, and in that manner was able to carry on and conduct the avocation of farming.

- — Eon. Paris G. Stepp, Judge. (1) The defendant having entered a plea of not guilty put in issue every fact which was required to prove to make out its case. The burden is on the state to prove that the defendant was a registered pharmacist before he can be convicted under the act relating to druggists.

— Hem. Joshua W. Alexander, Judge. (1) Section 592, R. S. 1899, requires “a plain and concise statement of the facts constituting the cause of action. Section 610 requires that “only substantive facts necessary to constitute the cause of action” shall be stated.

— Now, Hugh Dabbs, Judge. (1) When a court does not grant a new trial for any of the reasons stated in the motion, it in effect overrules the motion. The record in this case does not disclose that the court assigned any reasons outside of those, stated in the motion. Yastine v. Rex, 93 Mo. App. 93.

— Hon. Joshua W. Alexander, Judge. (1) The petition does not state a canse of action. It fails to show anything authorizing this suit to he brought by plaintiff. (2) Plaintiff’s own testimony shows that neither the probate nor the circuit court of Ray county, Missouri, had any jurisdiction. Plaintiff proved himself out of court. (3) A judgment is local in its nature; and therefore must be administered on in the jurisdiction where rendered.

<p>Appeal from Vernon Circuit Court. — Eon. L. W. Shafer, Judge.</p> <p>There is no bill of exceptions which can be considered by this court.</p>

— Hon. Alex. H. Waller, Judge. (1) The universal rule of practice and pleading in justice courts and it is the same where the casé is removed by appeal to the circuit court, that in the absence of a special plea being filed the general issue is always deemed to be pleaded and a defendant is entitled under such issue to make any defense he pleases, except a defense by counterclaim or setoff, without any formal special plea in writing, being filed with the justice before trial…

<p>1. STREET RAILWAYS: Negligence: Contributory Negligence: Humanitarian Doctrine: Recklessness. Before a plaintiff who has been guilty of negligence himself can recover for negligence of the defendant the latter’s negligence must be characterized by willfulness, recklessness or wantonness; but the failure to exercise ordinary care in some circumstances is recklessness and may sometimes amount to willfulness or wantonness. [Cases considered.]</p> <p>2. —-: -: -: -: Careful or Careless. If the effect of the humanitarian doctrine is to abolish the distinction between want of ordinary care and recklessness, it may nevertheless be right since an absolute duty rests upon those who propel dangerous instrumentalities to use ordinary care not to hurt a person, whether he is careless or careful.</p> <p>3. -: -: -: -: Evidence. On a review of the evidence it is held that the plaintiff, injured by a collision with a following car, in the darkness of the evening, is not entitled to recover since his own evidence shows that at a distance of thirty feet he could see the following ca.r only as some “dark object” and hence shows that the motorman could not see the plaintiff’s wagon, a smaller object.</p>

— Hon. John P. Butler, Judge. (1) The Township Organization law of this State, enacted in 1879 (2 R. S. of 1879, chap. 162, p. 1456), adopted in Sullivan county in 1880, was and is unconstitutional and void. State ex rel. v. Gibson, 94 S. W. 513, J. N. Keithly, before whom' this case was instituted anj tried, was elected justice of the peace at the township election in Taylor township in said Sullivan county, held in March, 1905.

— Eon. Henry M. Ramey, Judge. (1) The verdict was not sustained by any substantial evidence. Wilson v. Russler, 91 Mo. App. 275. There would be no more consideration for such an agreement than if a party to whom a sum of money was due agreed with the debtor to accept a less amount in full .payment of the debt. Willis v. Gammill, 67 M'o. 730.

— Hon. John G. Parle, Judge. (1) The court erred in refusing to give defendants’ peremptory instruction asked at the close of plaintiff’s evidence, and again, at the close of all the evidence. On the Avhole record plaintiff is not entitled to recover.

— Hon. W. B. Teas dale, Judge. (1) The court erred in overruling the demurrer interposed by the defendant at the conclusion of plaintiff’s evidence for the reason that on the pleadings and the evidence herein plaintiff cannot, under the law, recover. Green v. Railway, 90 S. W. 805; Schmidt y. Railway, 90 S. W. 138; Guyer v. Railroad, 174 Mo. 350; Hartman v. Transit Co., 112 Ma App. 439; Barrie v. Transit Co., 102 Mo>. App. 87; Panning v. Transit Co., 103 Mo. App. 157.

<p>Appeal from Jackson Circuit Court. — Hon. Henry L. McCkme, Judge.</p> <p>(1) The questions propounded to plaintiff’s witnesses by her attorneys as to the distance in which the car could have been stopped were not proper hypothetical questions, and the witnesses were not qualified to give expert testimony on that point. Mammerberg v. Railroad, 62 Mo. App. 567; Benjamin v. Railroad, 50 Mo. App. 602; Turner v. Haar, 114 Mo. 345; Senn v. Railroad, 108 Mo. 142. (2) The questions asked plaintiff’s witnesses if the gripman could have seen whether the tracks were gummy or wet wore improper questions because these are matters of common knowledge and not for opinion or expert evidence. Gregory v. Chambers, 78 Mo. 294; Hurt v. Railroad, 94 Mo. 255; Railroad v. Stockyards Co., 120 Mo. 541; Gavisk v. Railroad, 49 Mo. 274; Walton v. Railroad, 40 Mb. App. 544; Naughton v. Stagg, 4 Mo. App. 271; State v. Dusenberry, 112 Mo. 227; Wharton on Criminal Evidence (8 Ed.), sec. 405; (3) The questions propounded to plaintiff’s medical expert witnesses by her attorneys were not proper hypothetical questions in that they did not fairly and properly assume and present to such witnesses the facts and all the facts shown in evidence, and which were necessary for an intelligent expert opinion, and because they called upon the witnesses to say whether the fall from the buggy produced the injuries plaintiff claimed she had sustained, which was the very issue which the jury alone was to determine. Taylor v. Railroad, 185 Mo. 239; Gutridge v. Railroad, 94 Mo. 472; Boettger v. Iron Co., 136 Mo. 536; Langston v. Railroad, 147 Mo. 465; Hartman v. Muehlbach, 64 Mo. App. 565. (4) The first instruction for plaintiff should not have been given because it ignores the defense of contributory negligénce entirely, and authorized the jury to find for plaintiff no matter how negligent she may have been in putting herself in a place of danger and continuing therein, and notwithstanding such negligence on her part may have contributed directly to her injury; and for thé further reason that it did not require the jury to find that the gripman knew, or should have known that plaintiff would not get out of the way of the car; and because it is contradictory of the second instruction given for defendant. Jones v. Talbot, 4 Mo. 279; Hickman v. Griffin, 6 M'o. 37; State v. McNally, 87 Mo. 644; Nasse v. Algermissen, 25 Mo. App-. 186; Markowitz v. Kansas City, 125 Mo. 485; Flynn v. Bridge Co., 42 Mo. App. 529; Yoegeli v. P. M. & G. Co., 49 Mo. App. 643; State v. Cable, 117 Mo. 380; State v. Brumley, 53 Mo. App. 126; Spillane v. Railroad, 111 Mo-. 555; Zwisler v. Storts, 30 Mo. App. 164'; State v. Herrell, 97 Mo. 105; Matthews v. Railroad, 63 Mo. App. 569; Goetz v. Railroad, 50 Mo. 474. (5) The third instruction given for plaintiff is erroneous and should not have been given: First, because it. leaves the supposed future suffering of plaintiff from her alleged injuries too much to conjecture and speculation; and, second, because it refers the jury to the petition for the injuries for which they may give plaintiff damages. Grant v. Railroad, 25 Mo. App. 232; Remmler v. Shenuit, 15 Mo. App. 192; McGinniss v. Railroad, 21 Mo. App. 399; Proctor v. Loomis, 35 Mo. App. 482; Clark v. Loan Co., 46 Mo. App. 248; Railroad v. McGrew, 104 Mo. 282. (6) The third and fourth instructions asked on behalf of defendant should have been given. They would have presented the case to the jury, fairly and properly on the issue of contributory negligence, which issue was raised by the answer and supported by substantial evidence. Cornwell v. Transit Co., 106 Mo. App. 135; Mintér v. Bradstreet Co., 174 Mo. 444. (7) Defendant’s demurrer to the evidence should have been sustained. Gurley v. Railroad, 93 Mo. 490; Waldhier v. Railroad, 71 Mo. 514; Bohn v. Railroad, 106 Mo-. 433; Hite v. Railroad, 130 Mo. 132; Chitty v. Railroad, 148 Mo. 74; Raming v. Railroad, 157 Mo. 477; Boring y. Railroad, — M'o. —; Yan Bach v. Railroad, 171 Mo. 838; Boyd v. Wabash, 105 Mo. 37; Wheat y. St. Louis, 179 Mo. 580; Guyer v. Railroad, 174 Mo. 344; Moore v. Railroad, 176 Mo. 536; Roenfeldt v. Railroad, 180 Mo. 554; Reno y. Railroad, 18 Mo. 469; Ries y. Transit Co., 179 Mo. 1.</p> <p>(1) It is held by all of the authorities that the finding of the trial court as to who is competent to give expert testimony is a matter resting within the sound discretion of the judge, and is conclusive upon the appellate court, except where his ruling is founded upon clear error of fact or law. Fullerton v. Fordyce, 144 Mo. 519; Bradford v. M., K. & T. Co., 64 Mo. App. 475. (2) The questions propounded, of which complaint is made, were proper questions, and even had they been improper, the error in permitting them to be answered, could in no wise have resulted to appellant’s prejudice; respondent had the right to assume that the track was dry since this is its normal condition, and there was no other testimony a.t that time in the case tending to show that it was not in its normal condition. (3) The hypothetical questions propounded to medical experts by respondent’s counsel were proper. Redmon y. Railroad, 185 Mo. 14; Wood v. Railroad, 181 Mo. 453; Franklin v. Railroad, 87 S. W. 930; Glasgow v. Metropolitan Company, 89 S. W. 920; HolloAvay v. Kansas City, 184 Mo. 39; O’Neill v. Kansas City, 178 Mo. 100'. (4) Plaintiff’s instruction numbered 1 is absolutely correct; it is in accord with the repeated rulings of our Supreme Court. The instruction presents the last chance or humanitarian doctrine applicable to cases of this character. Klockenbrink y. Railroad, 172 Mo. 689; Kellney v. Railroad, 101 Mo. 67; Morgan y. Railroad, 159 Mo. 262.</p>

<p>Appeal from Jackson Circuit Court. — Hon. W. B. Teas dale. Judge.</p> <p>(1) There was no issue of fact as to notice by ringing bell or sounding gong on car. Bennett v. Railroad, — Mo. App. —; Shaw v. Railroad, 104 Mo'. 648; Saunders v. Railroad, 147 Mo. 411; Catbcart v. Railroad, 19 Mo. App. 113; Summerville v. Railroad, 29 Mo. App. 48. (2) Plaintiff was guilty of contributory negli-</p> <p>gence. Davies v. Railroad, 159 Mo. 6; Moore v. Railroad, 176 Mo. 543; Bennett v. Railroad, — Mb. App. —; Fellenz v. Railroad, 106 Mo. App. 162; Fanning v. Transit Co., 103 Mo. App. 151; Tanner v. Railroad, 161 Mo. 497; Kelley v. Railroad, 101 Mo. 67; Holwerson v. Railroad, 157 Mo. 216; Van Bach v. Railroad, 171 Mo. 338; Guyer v. Railroad, 174 Mo. 344; Rice v. Railroad, 92 Mo. App. 35; Septowsky v. Transit Co., 102 Mb. App. 110,- 76 S. W. 693. (3) The defendant was guilty of no negligence. Bennett v. Railroad, — Mo. App. —; Markowitz v. Railroad, 186 Mo1. 350; Kelley v. Railroad, 101 Mo. 67; Morgan v. Railroad, 159 Mo. 262; Klockenbrink v. Railroad, 172 Mo. 678; Moore y. Lindell, 176 Mo. 546; Aldrich v. Transit Co'., 101 Mb. App. 77; Brewing Assn. v. Talbott, 141 Mo. 674; Fuchs v. St. Louis, 133 Mo. 168; Boyd y. Railroad, 105 Mo. 371; Hill v. Drug Co., 140 Mo. 433; Sharp v. Railroad, 101 Mo. 214; Tanner v. Railroad, 161 Mo. 497; Shank v. Traction Co., 101 Mo. App. 702; Petty v. Railroad, 179 Mo. 666; Ries v. Transit Co., 179 Mo. 1; Ro-enfeldt y. Railroad, 180 Mb. 554. (4) The court erred in giving and refusing-instructions. Bennett v. Railroad, — Mo. App. — ; Shaw v. Railroad, 104 Mo. 648; Saunders v. Railroad, 147 Mo. 411; Cathcart v. Railroad, 19 Mo. App. 113; Summer-ville v. Railroad, 29 Mo. App. 48; Dairy Co. v. Transit Co., 103 Mo. App. 93; I-Iickman v. Railroad, 47 Mo. App. 65; Smith v. Railroad, 52 Mo. App. 36; Barrie v. Transit Co., 102 Mo. App. 87; Bunyan v. Railroad, 127 Mo. 12; Riska v. Railroad, 180 Mb. 168; Dairy Co. v. Transit Co., 98 Mo. App. 20. (5) The verdict is opposed to the weight of the evidence to such an extent that it is the unmistakable result of bias. O’Hara v. Iron & Foundry Co., 66 Mo. App. 53; Granev v. Railroad, 157 Mo-. 680; Friesz v. Fallon, 24 Mo. App. 439; Hickman v. Railroad, 47 Mo. App. 65; Waiton v. Railroad, 40 Mo. App. 544; Weaver y. Railroad, 60 Mo. App. 210. (6) The verdict is excessive. Stoetzele v. Swearingen, 90 Mo. App. 588; Haynes v. Trenton, 108 Mo. 123.</p> <p>Filed an argument.</p>

— Eon. James E. glover, Judge. (1) The court erred in holding that plaintiff could not recover in this form of action. Koch v. Hebei, 32 Mo. App. 110; Clark v. Cordry, 69 Mo. App. 13; Walker v. Gays’ Estate, 73 Mo. App. 89; Sharkey v. McDermott, 91 Mo. 655; Waters v. Cline, 85 S. W. 209; Chamberlain v. Dunlop (N. Y.), 22 Am. St. 888; Estate of Kessler, 41 Am. St. 74; Hayward v. Leonard, 19 Am. Dec. 277; Kosmer v. Wilson, 7 Mich. 294; Caviness v. Rushton (101 Ind. 500), 51 Am.

— Son. L. W. Shafer, J udge. (1) Loss of business is not a proper element of damage in a suit for personal injuries. Such fact is not admissible in evidence for any purpose, much less a. basis for awarding damages in such. case. Prior v. Railroad, 85 M'o. App. 371; Brink v. Railroad, 160 Mo. 87; Real Estate Co. v. McDonald, 140 Mo. 605; Wilson v. Weil, 67 Mo, 399; Turner v. Gibbs, 50 Mo. 556.

— Eon. L. W. Shafer, Judge. (1) The defendant, as a carrier of passengers, not being an insurer of their safety, was not responsible for any injury to the plaintiff as a passenger, “where all reasonable care, skill and diligence, prudence and foresight have been employed.” ,Sawyer v. Railroad, 37 Mo. 241; Hite v. Railroad, 130 Mo. 139.

— No». Howwd Gray, Judge. (1) The court erred in refusing to give plaintiff’s murrer asked by plaintiff at the close of all the evidence, directing tlie jury to find a verdict for the plaintiff. Corley v. Butler, 55 Mo. 398.

— Hon. Hat. M. Shelton, Judge. (1) If an estate is found within a county, existing in any of the statutory conditions, the public administrator must take charge of it. Leeper v. Taylor, 111 Mo. 312; Dunn v. Book Co., 109 Mo. 90. (2) It is not only his duty to take charge of such estates, but he must do it, or else he will be liable on his bond. State ex rel. y. Kennedy, 73 Mo. App. 381.

— Son. James E. Sazell, Judge. (1) If the estate taken under the will is a conditional estate, then non-performance of the condition, if it is a condition subsequent, does not divest the estate. Weinrich v. Weinrich, 18 Mo. App. 364; Ellis v. Kyger, 90 Mo. 600; O’Brien v. Wagner, 94 Mo. 93; Ruddick v. Railroad, 116 Mo. 25. (2) The words on condition, provided, etc., are not sufficient to limit the estate. Still-well v. Railroad, 39 Mo. App. 221.

— Hon. George W. Wannemaker, Judge. (1) Before the plaintiff can recover there must be some sufficient evidence to connect the appellant with the injury. This is an action under a penal statute and it devolves upon the plaintiff to prove, by competent evidence, the liability of appellant for the injury sued for. This cannot be done by inference, conjecture, or presumption. Smith v. Railway, 25 Mo'. App. 116; Ferris v. Raihvay, 30 Mo. App. 124; Barnett v. Railway, 68 Mo. 56.

— Hon. Nat. M. Shelton, Judge. (1) The court erred in refusing to give defendant’s instruction numbered 7, which was in the nature of a demurrer to the evidence for the reason that the evidence showed that at the beginning of the suit and prior thereto the defendant was not in possession of the goods, but that Mrs. Plessuer was in possession of the goods. Davis v. Randolph, 3 Mo. App. 454; Haeger v. Marcus, 5 Mo. App. 565; Gulatha v. Waldsten, 7 Mo.

— Hon. Joshua W. Alexander} Judge. (1) The court erred in overruling appellant’s motion to quash the warrant of arrest issued by the city recorder. ■ The charter in express and unmistakable language, says that the city council shall, by ordinance, prescribe in Avhat a misdemeanor shall consist, or what shall constitute one. In a Avord, the charter divorces the constitutive facts from the ordinance declaring the penalty.

— lion. William G. Ellison, Judge. (1) States can prescribe the conditions on which foreign corporations can do business within their boundaries. Bank v. Earl, 13 Pet. 586; Paul v. Virginia, 8 Wall. 168. (2) The Hanamo Telegraph and Telephone Company being a “Resident-Foreign Corporation” and having failed to comply with the statutes its contracts are void. Amusement Co. y. Amusement Co., 192 Mo. 404.

— Hon. Ghesley A. Mosman, Judge. (1) The written compromise and settlement introduced by the defendant on the trial was a complete settlement of the case out of which the costs arose and which costs together with the judgment in that case form the basis of this suit. (2) There could be no allowance in the probate court without complying with the statute in relation to establishing demands against estates of deceased persons. There was no compliance with such statutes.

— Hon. Ohesley A. Mosman, Judge. (1) Appellees seek to evade that statute by alleging, “That the said probate judge arbitrarily and without any evidence found that John P. Pinger was a nonresident minor.” But unfortunately for the appellee’s position, the judgment of the probate court finds that he was a non-resident, which carries absolute verity upon its face until set aside in a direct proceeding instituted for the purpose, and mandamus is not such a proceeding.

<p>Appeal from Buchanan Circuit Court. — Hon. Henry M. Ramey, Judge.</p>

<p>Appeal from DeKalb Circuit Court. — Eon. Alonzo L. Eurnes, Judge.</p>

— Hon. James E. Hazell, Judge. (1) There was no delay, since the car in which the plaintiff elected to travel was moved according to the regular schedule for handling that business. Fetter on Carriers of Passengers, p. 296. ,(2) The. alleged delay did not cause the injury complained of. (3) The defendant was not required to provide any contrivance for warming the freight car. (4) The car was not locked and sealed and plaintiff was not detained therein.