Volume 122 — Missouri Appeal Reports

— Eon. John P. Butler, Judge. (1) The evidence failed to show any negligence on the part of defendant. (2) The mere failure of defendant to equip the jointer with a guard, or to post notices of the dangerous character of the machinery in his factory, did not establish negligence per se, or show that it was the proximate cause of plaintiff’s injury. Smith v. Box Co., 92 S. W. 394; McGuerty y. Hale (Mass.), 36 N. E. 682; Carr v. Williston (Minn.), 46 N. W. 353.

<p>Appeal from Schuyler Circuit Court. — Hon. Nat. M. Shelton, Judge.</p> <p>(1) Defendant contended that the flour should be delivered to him on the payment of cash, and that plaintiff had agreed to pay the freight. Title does not pass on a cash delivery sale till the cash is paid, or in other words until the goods are accepted by the vendee, and the cash paid. Com. Co. v. Bank, 116 Mo. 569; Freight Co. v. Standard, 44 Mo. 71; Commission Co. v. Railroad, 72 Mo. App. 437; State v. Brewing Co., 32 Mo. App. 276; Johnston v. Parrot & Barnes, 92 Mo. App. 199. (2) There is an implied warranty that the commodity sold is merchantable when there was no opportunity for inspection, and the defendant in this case had no opportunity to inspect the flour until he returned from Chicago. Lee v. Saddlery Co., 38 Mo. App. 201; Iron Co. v. Holbeck, 82 S. W. 1128; Armstrong v. Tobacco CO'., 41 Mb. App. 254; Cement Co. v. Stewart, 103 Mo. App. 182. (3) This flour was not delivered within a reasonable time, and the time was the essence of the contract in this case; and where time is made the essence of the contract by the express stipulation of the parties, or by implication from the very nature of the property, or the avowed objects of the purchaser, if the commodity is not delivered within a reasonable time, the vendee may refuse to take it. Cheney v. Libby, 134 U. S. 68, 61 IT. S. 94; Waterman v. Banks, 144 U. S. 394; Trust Co. v. York, 81 Mo. 342. (4) Where the vendor failed to deliver goods within the time agreed upon, or within a reasonable time, the vendee is not liable on the contract, time being of the essence thereof. Gibbs v. Ely, 41 N. E. 351, 63 IT. S. 28, 96 U. S. 34. (5) Plaintiff by his action, and conduct in regard to the flour rescinded the trade, by ordering the flour back and receiving it back, and having it in his business at the time of and prior to bringing his suit; he was not entitled to recover in this case on the contract, if there was any contract between them, because he could not recover the purchase price of the flour and at the same time have the flour in his possession. The only thing that he could have recovered Avas the difference between what he could have sold the flour for on the market and the price that he was to get for it from the appellant in this case. So the court erred in directing the jury to find a verdict for the'plaintiff. Fine v. Rogers, 15 Mo. 315; Chauteau v. Iron Works, 94 Mo. 388; Claes Co. v. McCord, 65 Mo. App. .507. (6) There Avas in this case no acceptance of a part of the goods so sold, and as he did not receive the same, neither did he give something in earnest to bind the bargain or in part payment, and there was no note or memorandum in writing made of the bargain and signed by the parties to be charged with such contract or their agents laAvfully authorized, and therefore this sale was void, because it was Avithin the Statute of Frauds. Palmer v. Ellsberry, 79. Mo. App. 570; Wainscott v. Kellog, 84 Mo. App. 621. (7) There is no memorandum in writing of any bargain arid sale in this case; there is no price stated, no place of delivery, no contract stated Avith reasonable certainty. Kelley v. Thuey, 143 Mo. 435;- Peycke Bros. v. Ahrens, 98 Mo. App. 456; Martin v. Mill Co., 49 Mo. App. 29.</p> <p>(1) On the plain admitted facts in this case plaintiff was entitled to recover. Defendant ordered the flour and meal shipped to him at prices agreed upon; he Avas to pay the freight and have credit therefore as part of the purchase price. For twelve years plaintiff had shipped defendant flour over the Wabash railroad to defendant; it was the usual, customary and only carrier between the points. Defendant had always received the flour, paid the freight and received credit therefor. The car arrived December 1; on December 4 defendant was in the act of receiving, that is of unloading, the flour, but refused to pay the extra charge of $2, imposed by the carrier for his delay in unloading. There is no pretense the flour was not in good condition when shipped or on arrival; no such issue tendered. The delivery was complete and passed title. Meyer Bros. v. McMahan, 50 Mo. App. 25; Graff v. Foster, 67 Mo. 520; Comstock v. Affoelter, 50 Mo. 411; State v. Wingfield, 115 Mo. 437; Kuppenheimer v. Wertheimer, 107 Mich. 77, 64 N. W. 952; Mee v. McNider, 109 N. .Y. 500,17 N. E. 424. (2) The statute of frauds has nothing to do with the case and was not pleaded. The flour was shipped on defendant’s written order at an agreed price. Graff v. Foster, 67 Mo. 521. (3) On defendant’s refusal to take the flour plaintiff had the right to order it back, store it for defendant and recover the price. Lumber Co. v. Lumber Co., 51 Mo. App. 561; Vinegar Co. v. Wehrs, 59 Mo. App. 493, 52 L. R. A. 244a; White v. Solomon, 164 Mass. 516, 30 L. R. A. 537.</p>

— Eon. Alex. H.. Waller, Judge. (1) The court erred in overruling defendant’s motion to make plaintiff’s petition -more definite and certain. . This motion Avas timely, made before ansAver filed and exceptions Avere saved and preserved to overruling same. The matter was again called to the court’s attention in the motion for a new trial. (2) Every substantial fact which the plaintiff in order to recover must prove, he must also allege so that an issue can be made thereon.

— No». Thomas J. Seehórn, Special Judge. (1) Tbe bill of lading introduced by plaintiff was not tbe one set up in tbe petition. Tbe plaintiff could not plead one contract and recover on another. Jobnson-Brinkman Co. v. Bank, 116 Mo,. 558. (2) Tbe defendant was not responsible for tbe loss resulting from tbe flood. Grier v. Railroad, 108 Mo. App. 565; Brewing Assn. v. Talbot, 141 Mo. 674; Moffatt v. Railroad, 113 Mo. App-. 544.

— Hon. Alex. H. Waller, Judge. The trial court did not err in refusing to sustain appellant’s peremptory challenge to juror Thompson. On Ms vow dire examination he did not disclose that he had formed or expressed an opinion as to the merits or demerits of this case, and was therefore a competent juror to try the case.

— Hon. Alex. H. Waller, Judge. (1) The court erred in overruling defendant’s motion to make plaintiff’s petition more definite and certain. Lanitz v. King, 93 Mo. 513; Pier v. Heinrichoffen, 52 Mo. 333; Sidway v. Land Co., 163 Mb. 375; Pattison, Missouri Code Pleading, sec. 62; Brodell v. Alexander, 8 Mo. App. 110; Scott v. Robards, 67 Mo. 289; 8 Ency. of Plead, and Prac. (2 Ed.), p. 270, sec. 5: Cook v. Putnam Go., 70 Mo. 668; Saxton v. Railroad, 98 Mo.

— No». Joshua ~W. Alexander, Judge. (1) The general rule is well settled that the measure of damages for injury to real estate, is the difference in the market value of the land just before and its value just after the injury. Trust Co. v. Bambrick,-149 Mo. 569; Brown v. Railroad, 80 Mo. 460; Ready v. Railroad, 98 M'o. App. 467; Tegeler v. Kansas City, 95 Mo. App. 162; Carson v. Springfield, 53 Mo. App. 296; Paddock v. Somes, 51 Mo. App. 326; Hudson v. Burke, 48 Mo*.

— Hon. Joshua W. Alexander, Judge. Under the contract, two reputable, experienced telephone men, to be selected by P. M. Gilchrist, Willis Chowning and H. C. Shepherd, were to inventory the wire sold, and their inventory is final in the absence of fraud, misconduct or bad faith. It cannot be attacked merely on the ground of error.

— Hon. Hugh Dabbs, Judge. (1) Defendant’s demurrer to the evidence should have been sustained.

— Hon. John P. Butler, Judge. (1) Plaintiffs, by tbeir attachment against the defendants, and the service of garnishment on J. E. Howe thereunder, obtained a lien on any money, property or effects, in the hands of the garnishee, belonging to the defendant, E. H. Smith, and this lien, having been acquired more than four months prior to the filing of the petition in bankruptcy, by the defendant, E. H. Smith, was not affected by the subsequent adjudication and discharge, of…

<p>1. MUNICIPAL CORPORATIONS: Defective Sidewalks: Pleading: Locus in Quo. A petition laid the locus in quo “immediately north of the gate that opens on to the street from the residence of L.” The evidence showed the walk was sound for a distance of three feet north of said gate. Held, there was no variance and where a statement is sufficiently definite to inform the opposite party what is relied on, the pleading is to be upheld.</p> <p>2. EVIDENCE: Expert Witness: Office of Court. It is the office of the court to determine whether a witness is an expert and not the witness himself.</p> <p>3. -: Expert Testimony: Cause of Injury: Appellate Practice. It is error to ask a physician to which of two causes he attributes the plaintiff’s injury since that is the question the jury is to decide; but such error may be waived by failure to call the trial court’s attention to it in the motion for new trial.</p> <p>4'. -: Defective Sidewalk: Opinion of Witness. It is error to ask witnesses whether the sidewalk complained of in an action for personal injury “was in good condition” or “was a good sidewalk,” since it is the duty and sole province of the jury to decide that very question.</p> <p>5. -: -: Ordinance: Inspection of Street Commissioner. An objection to the reading of the ordinance in regard to the duties of the street commissioner because some of the ordinance did not relate to his duty in regard to sidewalks is held insufficient since the whole ordinance was necessary for the jury to form a proper conception of his duties;, and again such objections are too indefinite.</p> <p>6. MUNICIPAL CORPORATIONS: Defective Sidewalks: Pleading: Notice: Verdict. A petition alleged that the condition of the sidewalk was known to the defendant or by the exercise of ordinary care might have been known. Held, it was a charge of notice, either actual or constructive, and the rule in regard to pleading in the alternative does not apply and if no objection was made or exception taken the petition supports the verdict.</p> <p>7. APPELLATE PRACTICE: Immaterial Matters. It is not the duty of the appellate court to notice points in an argument which do not properly belong to the case or are of such a character as to throw no light on its merits.</p>

— Bon. Howard Gray, Judge. (1) Where a party successfully maintains a position in a legal proceeding, he cannot afterwards in a proceeding involving the same subject-matter and the same adversary maintain a contrary or inconsistent position. Bensieck v. Cook, 110 Mo. 182; McClannahan v. West, 100 Mo. 309; Smiley v. Cockrell, 92 Mo. 105; Brown v. Bowen, 90 Mo. 182; Potter v. Adams, 24 Mo. 159; Welch v. Dameron, 47 Mo., App. 221; Wills v. Kane (Pa.), 2 Grant.

— Hon. John A. Rich, Special Judge. (1) The city of St. Joseph, under its charter, has the exclusive power to regulate dramshops within its limits. R. S. 1899, sec. 5508; State v. Kessels, — Mo. App. —; State v. Clarke, 54 Mo. 17; People v. Hanrahan, 4 L. R. A. 757; State v. Thompson, 160 Mo. 341; Huff-smith v. People, 8 Colo. 175; State v. Binder, 38 Mo. 450; Givens v. Yan Studdeford, 86 Mo. 156.

— Hon. Alonzo Burnes, Judge. The verdict of the jury was for the right party under all the evidence in the ca§e and should have been allowed to stand. Ottomeyer v. Pritchett, 178 Mo. 160; Mackowik v. Railroad (Mo.), 94 S. W. 256; State ex rel. v.- Railroad, 71 Mo. App. 389; Grayson v. Railroad, 100 Mo. App. 60; Osteryoung y. Transit Co., 108 Mo. App. 703; Connell v. Union Tel. Co., 116 Mo. 34; Deming v. Railroad, 80 Mo-. App. 152; Strange y. Railroad, 61 Mo.

<p>Appeal from Buchanan Circuit Court. — Eon. Chesley A. Mosnrni, Judge.</p> <p>(1) Instructions founded on testimony of plaintiff and ignoring countervailing facts proved by defendant are erroneous. Brown v. McCormick, 23 Mo. App. 181; Ellis v. Wagner, 24 Mo. App. 407; Hohstadt v. Daggs, 50 Mo. App. 240; Brownlow v. Wollard, 66 Mo. App. 642; Clark v. Hammerle, 27 M'o. 70; Fitzgerald v. Hayward, 50 Mo. 516. (2) In this case defendant claims that plaintiff rescinded his contract when he took away the valuable horse. Where the effect of an action is to rescind a contract, the plaintiff ought to restore what he got by the contract or refund its value. Culbertson v. Young, 86 Mo. App. 277. (3) Instruction numbered 1, given on the court’s own motion, placed the burden of proof upon the defendant. This was clearly erroneous as the burden of proof never shifts in the trial of the case. Livery Co. v. McKelvey, 55 Mo. App. 242.</p>

— No». Samuel Davis, Judge. (1) It is respectfully submitted that the abstract of record shows a full compliance with the law and the rule of this court. (1) Where no error is assigned on the record proper, and the abstract of the record fails to show a bill of exceptions was filed, though there is a recital of its filing in the bill itself, nothing is presented for review. Scott v. Express Co., 116 Mo. App. 174; Kampf v. Transit Co., 102 Mo.

— Hon. L. W. Shafer, Judge. (1) Even if it were possible for a bill of exceptions to prove itself, the pretended bill in this case actually impeaches itself.

— Hon. Joshua W. Alexander, Judge. (1) The testimony admitted by the court, over the objection of defendant, as to the cost of seed corn, and expense of hands and teams, and other expenses, in planting and plowing the corn, was not an element of damage and was not the correct measure of damage. Foncannon v. Kirksville, 88 Mo. App. 279; Tegeler et ux. v. Kansas City, 95 Mo. App. 162. (2) Instruction numbered 1, given for plaintiffs, is faulty.

— No», John P. Butler, Judge. . - The evidencé of the respondent as to the damage to the partnership by reason of the alleged violation of the partnership a,greement by appellant was so vague and indefinite as to furnish no basis for estimating the amount of the damages and the recovery by respondent could under no circumstances have been for more than nominal damages. Cravens v. Hunter, 87 Mo. App. 156; Sheedy v. Union Pressed Brick Works, 25 Mo. App. 527.

— Eon. John P. Butler, Judge. In the case at bar the defendants were the prevailing parties. The plaintiff wholly failed on every issue. No equity was adjudged in his favor. The court erred in taxing the costs made by defendants against them. R. S. 1899, secs. 1547, 1549, 1550, 1559; Hawkins v. Nowland, 53 M'o. 328; DuPont v. McLaran, 61 Mo. 511; Turner v. Johnson, 95 Mo. 452; Bender v. Zimmerman, 135 Mo. 58; Schumacker v. Mehlberg, 96 Mo. App. 598.

— Son. Ohesley A. Mosman, Judge. (1) In a replevin suit there must he some evidence sufficiently recent as Avill enable a jury to reasonably and fairly arrive at the value of the property sued for at the time of the trial or the verdict Avill not be alloAved to stand. Archer v. Schaffer, 25 Mo. App. 1. (2) In this case the only evidence of title to support the verdict Avas that deceased once in his lifetime OAvned this property.

— Eon. Nat. M. Shelton, Judge. (1) “In an action of divorce, a plaintiff is as much entitled to a decree when the evidence establishes a statutory ground of relief, as in any other action, and a court has no discretionary right to refuse it.” Lynch v. Lynch, 87 Mo. App. 32; Ulrey v. Ulrey, 80 Mo. App. 48; Kilpatrick v. Kilpatrick, 80 Mo. App. 70.

Original Proceeding by Prohibition. (1) Under the statute as amended by the Act of 1903, the probate court can only have jurisdiction to hold an inquisition as to the sanity of any person, when the person whose mental capacity is in question, is the owner of property. R. S. 1899, as amended, Laws 1903, page 200. Cox v. Osage County, 103 Mo-. 385.

— Hon. Alex. H. Waller, Judge. (1) Section 5989 provides that the city shall have power to make public improvements in two ways: First, by publication of resolutions; second, by petition of ten citizens. The publication of the resolution is jurisdictional and must locate the improvement, state the extent of the same and the general nature of the material to be used. Trenton v. Collier, 68 Mo. App. 490; Springfield v. Weaver, 137 Mo. 669; Kirksville v. Coleman, 103 Mo.

— Hon. James H. Slo-oer, Judge. (1) The court erred in refusing to sustain defendant’s demurrer at the conclusion of the case. Raming v. Railroad, 157 Mo. 507; Holwerson v. Railroad, 157 Mo. 239; Jacobson v. Transit Co., 106 Mo. App. 348; Gibe-line v. Smith, 106 Mo. App. 549. (2) In giving instructions, one, three and four, asked by plaintiff.

■Appeal from DeKalb Circuit Court. — No». Alonzo D. Burnes, Judge. (1) No persons shall enter upon or into any lands, tenements or other possessions, and detain and hold the same but where entry is given by law, and then only in a peaceable manner. R. S. 1899, sec. 3319. The object of this statute is to preserve peace and prevent the use of force in the assertion of rights. Sitton v. Stapp, 62 Mo. App. 197.

— Son. John P. Butler, Judge. (1) A real estate agent or broker, without agree'ment with both parties to that effect, cannot contract to take commissions from both sides, and if he does so, he cannot recover commissions from either party to the transaction. Chapman y. Curry, 51 Mo. App. 40, and cases cited.

Grundy Circuit Court. — Ron. Geo. W. WannemalcerJudge. (1) The trial court erred in overruling defendant’s motion to strike out the amended statement. The second count of the statement contained a new and entirely different cause of action than the one the case was tried on in the justice’s court, and the case was tried on one cause of action in the justice’s court and a different one in the circuit court. R. S. 1899, secs. 4077, 4079; Rippe v. Railroad, 71 Mo.

— Eon. Alex. E. Waller, Judge. (1) The petition sets out the substance of the fourth item of the will, and the decree of the court declares that, in consequence of the death of Edward’ Young in the lifetime of the testator, the entire legacy-given by that item lapsed. If the construction given to the will by the court below is erroneous, the error appears upon the record proper and is reviewable upon this appeal.

— Eon. L. W. Shafer, Judge. (1) The resolution that the improvement is necessary must describe the kind and character of the work to be done to inform the property-owner, so that he may exercise his right to protest, or the resolution mnst refer to plans and specifications then in existence. Otherwise the taxbills are void. Kirksville v. Coleman, 103 Mo. App. 215; McDonnell v. Gillon, 66 Pac. 314.

— Eon. George W. Wannemalcer, Judge. (1) One entering a train as an escort for a person taking passage thereon is not deemed a passenger, and is entitled to no time to get off except that afforded in performing the company’s duty' to its passengers, unless the company has notice of the fact that he enters on the train as a mere escort, and even in that case ordinary care and diligence is the degree of care due such person, and not the high degree of care due to passengers,…

<p>Appeal from Holt Circuit Court. — Hon. Wm. G. Ellison, Judge.</p>

— Hon. T. J. See-horn, Special Judge. (1) The court erred in refusing the instructions in the nature of a demurrer to the evidence, offered at the close of plaintiff’s case and again at the close of all the evidence. (2) The court erred in giving instructions one and two, and each of them asked by the plaintiff. Thompson v. Railroad, 111 Mo. App. 465. (3) The court erred in refusing to give defendant’s refused instructions 1, 2, 3 and 4, and each of them.

— Hon. Nat. M. Shelton, Judge. (1) The answer was a general denial not verified by affidavit. Under that answer the bond stood confessed as a valid and binding contract, and the defense, if any, the defendants had to make should have been set up affirmatively in the answer as new matter. Under the circumstances of this case, plaintiff’s motion for judgment on the pleadings should have been sustained upon the authority of the following decisions: Smith v. Rembaugh, 21 Mo.

— Hon. Henry M. Barney, Judge. (1) The amendatory act which went into effect June 1, 1903, can have no retroactive effect, nor does it apply to a- mortgage executed and filed long before its adoption. Cranor v. School District, 151 Mo. 125; Mc-Eaul v. Haley, 166 Mo. 56; Reed v. Swan, 133 Mo. 100; Chiles v. School District, 103 Mo. App. 240; Singer Mfg. Co. v. Shull, 74 Mo. App. 486; Petring v. Cur. Riv. Co., Ill Mo.

— Hon. Alonzo B. Bunios, Judge. (1) The fact that the judgment was entered before the motions were filed is immaterial. The filing of those motions suspended the judgment and it did not become a finality until after the motions were overruled. State ex rel. v. Smith, 104 Mo. 423; Lane v. Kingsbury, 11 Mo. 412: Thomas v. Thomas, 64 Moi 353; Givens v. Van Studiford, 86 Mo. 149; Stephen v. Brown, 56 Mo. 23; Scott v. Scott, 44 Mo. App. 600.

— Hon. Lewis Hoffman, Judge. (1) It was illegal for the trial court to admit parol evidence to show the number of colored children of school age in the district. The enumeration list filed with the county clerk is the only legal evidence to determine the number of colored children in the school district, and the school board could only be governed by what the enumeration, list showed, as filed in the office of the county clerk. R. S. 1899, sec. 9770.

— Eon. Lewis Hoffman, Judge. (1) The real estate agent before he can claim his commission must bring the buyer and seller together so that they can close the contract or he must procure a valid, written contract signed by the purchaser so that it can be enforced by the seller against' the buyer. Mat-tingly v. Penny, 105 Cal. 514; 45 Am. St. Rep. 87; Gelatt v. Ridge, 117 Mo. 560; Huggins v. Hern, 74 Mo. App. 88; Wright & Orrison v. Brown, 68 Mo.

— Hon. William H. Martin, Judge. (1) If a vendee of goods unreasonably refuse to accept them the vendor is under no obligation to allow them to perish on his hands, or to become reduced in value, but he may sell them at auction and hold the buyer responsible for the difference between the price they actually bring and the price agreed to be paid. Van Horn v. Rucker, 33 Mo. 391; Story on Sales, sec. 314; Tiffany on Sales, sec. 122, p. 227.

<p>1. Municipal Corporations: Nuisances: Encroachment on Highway. The broad doctrine is that every actual encroachment upon a highway by the erection of fences or any other building thereon is a nuisance even though it does not operate as an actual obstruction upon the public rights and any structure erected without legislative sanction is a nuisance.</p> <p>2. -: -: -: Limitation of Doctrine. The broad statement of the doctrine, however, is limited by the abutting owner’s rights in the street that are not enjoyed by the public at large such as the right to have in the sidewalk coal holes, cellar doors, basement, stairs and awnings which do not interfere with the public use of the street.</p> <p>3. ——: -: Carrollton: Power of Council. The town of Carrollton has the power to prevent and remove nuisances but no power to define and declare what is a nuisance; it may therefore remove by summary proceedings nuisances per se but would have to abate by action at law awnings which became nuisances.</p> <p>4. -: -: Different Kinds: Common Law. Nuisances are per se, that is naturally evil; malum prohibitum, forbidden by law; and those which do not fall within the above definitions, nuisances in fact. The power to declare a nuisance is vested in the Legislature except as fixed by the common law and this legislative power may be delegated to municipalities.</p> <p>5. -: -: General Rule: Missouri Doctrine. It would seem that the Missouri doctrine is against the weight of authority, that is that the public is entitled to the full and free use of all the territory embraced within the highway its full length and breadth which is suggested' to be a better doctrine than the Missouri doctrine.</p>

Clay Circuit Court. — Ron. Joshua W. Alexander, Judge. (1) The circuit court erred in overruling appellant’s motion to compel respondents to complete their amended petition in the particulars indicated in the motion. (2) The circuit court erred in overruling appellant’s demurrer to the amended petition for many reasons, of which the following may he stated, viz.: Its facts alleged were insufficient to constitute a cause of action.

— Hon. Henry M. Ramey, Judge. (1) If appellant lost at the gambler’s table, and then borrowed money to pay his loss, the lender could recover the money loaned. Serles v. Lum, 89 Mo. App. 255; Roselle v. Beckmeier, 134 M'o. 380; Allgear v. Walsh, 24 Mo. App. 134; Hatch v. Hanson, 46 Mo. App. 323; White v. Wilson, 37 S. W. 677. (2) The contract which the defendant pleads was executed. Courts with great unanimity have held that they will protect the result.

Louis County Circuit Court. — Eon. John W. McElhinney, Judge. The court erred in overruling defendant’s demurrer to the evidence, when the evidence fails to show any negligence on the part of defendant, or when plaintiff’s evidence conclusively shows that his own negligence directly contributed to his injuries, the demurrer to the evidence must be sustained.

Genevieve Circuit Court. — Hon. Charles L. Killian, Judge. (1) Defendant’s demurrer to the testimony introduced by plaintiff should have been sustained. The petition alleges that plaintiff had completed the well to the satisfaction of the defendant.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. The plea of res adjudicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. Henderson v. Henderson, 3 1-Iare loc. cit. 134; Railroad v. Levi, 17 Mo.

Louis County Circuit Court. — Eon. John W. McElhinney, Judge. (1) The court erred in giving the jury, at the request of plaintiff, and over the objection of the defendant, instruction numbered 1.

<p>1. FALSE ARREST: Agency: Street Railway Companies. In an action against a street railway company wherein the plaintiff alleged that the defendant’s servants and agents unlawfully, falsely and maliciously caused the plaintiff to he arrested, where the evidence showed that a road officer of the defendant who was a superior officer to the car conductor, caused the arrest, this was a sufficient showing that the arrest was made by the authority of the company.</p> <p>2. CARRIERS OF PASSENGERS: Ejection of Passenger: Instruction Assuming Fact. In an action by a passenger against a street railway company for unlawful ejection from defendant’s car, an instruction for plaintiff which authorized the jury to assess damages, etc., “if the alleged acts subjected the plaintiff to pain,” etc., is not erronéous as assuming the fact that plaintiff did suffer pain.</p> <p>3. -: -: Assault: False Arrest: Separate Causes of Action. In an action by a passenger against a street railway company for assault and unlawful ejection from the car and false arrest, where the evidence showed that plaintiff was forcibly removed from his seat and out of the car and the plaintiff’s evidence tended to show that the motormañ raised his controller handle in a threatening manner, this was an actual assault, coupled with a threat to do great bodily harm, and ejection from car; it constituted one cause of action. Plaintiff’s arrest following this transaction, at the instance of the defendant, was another and different cause of action.</p> <p>4'. EXEMPLARY DAMAGES: Discretion of Jury. Punitive damages are not allowed as a matter of legal right in any case, hut their allowance is left to the discretion of the jury; it is therefore error to instruct a jury that it “should” allow punitive damages for an assault, on finding that the assault was willful and without legal justification.</p> <p>5. DAMAGES: Mental Anguish. While the general rule is that pain of mind does not constitute an element of damage, unless connected with a hodily injury, yet in an action hy a passenger on a street car for unlawful ejection, where the evidence tended to show that he was assaulted and forcibly removed from the car and the assault accompanied by circumstances of malice, oppression and threats of great bodily harm, this was sufficient to submit to the jury the element of mental pain and anguish in estimating his damages.</p> <p>6. CARRIERS OF PASSENGERS: Duty of Carrier: Tender of Fare. Where a street car passenger tendered to the conductor a transfer check, unmutilated, it was the duty of the street railway company’s servants to exercise a high degree of care to carry such passenger to his destination. .</p> <p>7. FALSE ARREST: Agency: Authority of Agent. In an action by a passenger against a street railway company for false arrest caused by the defendant’s servants, an instruction which authorized a recovery for plaintiff upon the finding that such arrest was caused by an agent of the defendant who expressly “or impliedly" was acting within the scope oí his authority when he caused the arrest, was proper.</p> <p>8. CARRIERS OF PASSENGERS: Ejection of Passenger: Right to Resist. Where the agents of a" street railway company in charge of a car attempted to eject a passenger who had paid his fare and was lawfully upon the car, such passenger had a right to resist and protest, and may recover for the -pain and humiliation caused by forcible ejection.</p>

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

— Now. Henry C. Riley, Judge. (1) The court should have sustained the demurrer to the evidence as to the second count in the petition. The plaintiff was not connected with the railroad nor employed by it, and under the statute was a trespasser on the track when the injury took place. R. S. 1899, sec. 1105. And in addition he was guilty of such negligence as to bar him from recovery, and the demurrer ought to have been sustained for that reason.

<p>Appeal from Wright Circuit Court. — Hon. Argus Oox, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge.</p> <p>The court erred in giving a peremptory instruction to the jury to find for defendant. Laessig v. Travellers’ Protective Ass’n., 169 Mo. 281; Summers v. Fid. Mut. Aid Ass’n., 84 Mo. App. 605; Fetter v. Fidelity & Casualty Co., 174 Mo. 256; Columbia P. S. Co. v. Fid. & Casualty Co., 104 Mo. App. 157.</p> <p>(1) Under the testimony plaintiff failed to show that the death of the insured was due to external, violent and purely accidental causes. Hook v. Railroad, 162 Mo. 581; Spiro v. Transit Co., 102 Mo. 250; Young v. Railroad, 113 Mo. App. 636; Laessig v. Travelers’ Pro. Ass’n., 169 Mo. 281; Warner v. Railway, 178 Mo. 125; Smart v. Kansas City, 91 Mo. App. 586; Wilber v. Railway, 110 Mo. App. 689; Sharp v. Mut. As. Assn., 189 Ind. 192; Ins. Co. v. Seldon, 78 Fed. Rep. 285; Freeman v. Mercantile As. Ass’n, 156 Mass. 351; National Masonic Ass’n v. Shyrock, 73 Fed. 774; Carr v. Life Ins. Co. 100 Mo. App'. 602. (2) The plaintiff’s case failed to show a compliance with the conditions precedent to recovery under the policy, i. e., notice to defendant of the insured’s sickness or death within fifteen days thereafter. Delzell v. F. & C., 176 Mo. 281; Fink v. Ins. Co., 60 Mo. App. 673.</p>

— Hon. James D. Barnett, Judge. (1) A party who is induced to take out a policy of insurance hy fraudulent representations of the company’s agent may rescind the contract and recover hack the premium paid or he may retain the policy and have damages for the deceit. Hedden v. Griffin, 136 Mass. 226; Morris v. Hutchkins, 102 Mass. 439.

<p>Appeal from St. Lonis City Circuit Court. — Hon. Daniel G. Taylor, Judge.</p>

Louis County Circuit Court. — Hon. John W. MoHlhinney, Judge. (1) The judgment here sued on is in excess of the jurisdiction of the justice, and therefore void. Session Acts 1865, p. 89; R. S. 1855, ch. 90, sec. 2, p, 925; R. S. 1865, p. 56; R. S. 1865, ch. 177, sec. 2, p. 177; Barnett v. Railroad, 68 Mo. 56; White v. Railroad, 72 Mo. App-. 40Ó. (2) This action was barred on the 21st day of August, 1900, by the statute of limitations.

- — Hon. James L. Fort, Judge. A corporation is a resident of any county where it does or maintains business and in such case is entitled to but .ten days in which to take an appeal from the judgment of the justice. R. S. 1899, sec. 4060; Slavins v. Railroad, 51 Mo. 309; Cruitsinger v. Railroad, 82 Mo. 64; Hastings v. Railroad, 80 Mo. 659.

<p>1. PRACTICE: Acquiescing in Error: Waiver. Where instructions requested by the appellant and refused by the trial court showed the appellant objected to the theory on which the case was tried, the appellant could not be said to have acquiesced in an erroneous theory adopted by the trial court and waived his right to object to it by asking an instruction as favorable as possible to him under that theory.</p> <p>2. Res Ipsa Loquitur: Limits of Rule: Street Car Passengers. The doctrine of res Ipsa loquitur is applied in an action for damages to a passenger on a street car or other vehicle in the control of the defendant, only when the accident is one that according to ordinary experience does not happen if the vehicle is operated with proper care.</p> <p>3. -: -: -: Burden of Proof. In an action for damages to plaintiff while a passenger on defendant’s car caused by an explosion such as to frighten the passengers and cause plaintiff to be crushed in the panic which followed, where the evidence was conflicting as to whether the explosion was of ordinary or extraordinary intensity, and it was shown that explosions of a harmless character were of common occurrence upon cars operated by electricity, it was error to instruct the jury that proof of the explosion such as to cause a panic among the passengers 'and consequent injury to plaintiff, placed the burden upon the defendant to show that the explosion happened without its negligence.</p> <p>4. -: Inferences: Burden of Proof. Where the essential fact in issue is not directly proved but must be inferred from other facts, the law requires the facts from which the inference is drawn to be proved and does not allow them to be presumed. The inference of negligence in a carrier of passengers may be inferred from proof of an unusual explosion, but that the explosion was unusual can not be inferred from a panic of the passengers, but must be proved directly.</p> <p>5. -: Practice: Instruction: Curing Error. Where the burden was erroneously placed upon defendant by an improper application of the doctrine of res ipsa loquvtw, the error was not cured by an instruction for defendant correctly stating the doctrine, because the burden was cast upon the defendant before the plaintiff made out a prima facie case.</p>

— Hon. Henry G. Riley, Judge. The court erred in holding as a matter of law the agency of the defendant McNail was an agency coupled with an interest, ■ and not revoked by the death of Watson, the principal. Burke v. Priest & Burke, 50 Mo. App. 810; Richardson v. Dreyfus, 64 Mo. App. 600; State ex rel. v. Walker, 88 Mo. 284; Biebers’s Adm. v. Boeckman, 70 Mo. App. 503; Morgan v. Gibson, 42 Mo. App. 242; Keyl v. Westerkaus, 42 Mo. App. 57; Lockhart v. Forsythe, 49 Mo.

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. This is a suit on a contract, if any cause of action is stated in the petition; and the other party to the contract sued on being dead, the plaintiff was not a competent witness to prove the contract nor his compliance with the terms of it, on his part. R. S. 1899, sec. 4652; Waltemar v. Schnick’s Estate, 102 Mo. App. 142.

Louis City Circuit Court. — Eon. Daniel G. Taylor, Judge. (1) The defendants’ damages herein are not speculative or remote, but were the immediate, necessary and natural result of the wrongful act of the plaintiff. Grieveaud v. Railroad, 33 Mo. App. 466. Probable profits from a legitimate element of damages, when their extent can be shown with reasonable certainty. Stewart v. Patten,- 65 Mo. App. 21; Gildersleeve v. Overstoltz, 90 Mo. App. 518; Shouse v. NeisAvanger, 18 Mo.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. (1) Tlie ballot of Herman Lammers, Sr., was a correct ballot. It was improperly rejected by tbe inspectors of election. No form of ballot is prescribed by the statute. State ex rel. v. McGann, 64 Mo. App. 225; State ex rel. v. Thompson, 27 Mo. 369; Gregg v. Granby Co., 164 Mo. 616; Tomlin v. Bank, 52 Mo.

— Ron. Robert A. Anthony, Judge. (1) Legal and equitable causes of action may be set forth in the same petition if separately stated, and where they arise- out of the same transaction or transactions connected with the subject of action. Sec. 593, R. S. 1899; Henderson v. Dickey, 50 Mo. 165; Morrison v. Herrington, 120 Mo. 669; McHoney y. Ins. Co., 44 Mo. App. 428.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The demurrer to the sufficiency of the petition should have been sustained. It does not state facts sufficient to constitute a cause of action against either of the appellants.

— Hon. Jwines T. Neville, Judge. Where one makes, as of his own knowledge, a false representation, not knowing whether it is true or false, it is a fraud as much as if he knew it to be false. Hamlin y. Abell, 120 Mo. 188; Buford v. Caldwell, 3 Mo. 477; Caldwell y. Henry, 76 Mo. 254; Welsh v. Morse, 80 M’o. 568; Dun v. White, 63 Mo. 181; Delaney y. Rogers, 64 Mo. 201; Kount-ü v. Kaufman, 31 Mo.

— No». E. R. McKee, Judge. The quitclaim deed is inoperative under a mere description of the land to transfer said fund or any part of same to defendant, even if such had been the intention of grantors in executing it.

— Hon. Houston W. Johnson, Judge. Statement. — On June 2,1904, plaintiff and defendant entered into a written contract, of which the parts material to the case are as follows: “This contract by and between C. C. Bybee and J. S. Inlow, both of Audrain county, Missouri, in effect that J. S. Inlow of Parber, Missouri, this day sells unto C. C. Bybee the following real estate, his house and ground located on Main street in Parber, Audrain county, Missouri, for the sum of…

— Hon. H. C. Riley, Judge. On giving istructions the court ingnored that part of the contract between plaintiffs and defendant which provided that if any of the parts of the wagon were defective they should be repaired and replaced by the plaintiffs. (1) The verdict and judgment were on the whole record manifestly for the right party, and, where this is true, errors in. the instructions, if any, there be, will not work a reversal.

Francois Circuit Court. — Hon. Charles A. Killian, Judge. (1) Tbe petition fails to state a cause of action under section 1105, Revised Statutes 1899, and confers no jurisdiction on the court. R. S. 1899, sec. 1105; Wood y. Railroad, 30 Mo. App. 63; Ward v. Railroad, 91 Mo. 168. (2) There is no testimony tending to show-that the alleged destruction of crops occurred in any township, or that it occurred in a township adjoining Iron township, in St. Francois county.

<p>1. EVIDENCE: Record of Births. The charter of the city oí St, Louis and the ordinances of that city provide for the registration of marriages, births, etc., occurring in the city, and the record of a birth officially registered under those provisions is competent evidence where the date of such birth is material in a case.</p> <p>2. -: -: Materiality of Evidence. In an action for damages on account of personal injuries to plaintiff which caused a miscarriage, where the date of the birth of a child bom some months afterwards, together with other facts, tended to show that the injury complained of did not produce the miscarriage complained of, the registration of such subsequent birth as shown by the record of the city of St. Louis was competent.</p>

Louis County Circuit Court. — Now. John W. McElhinney, Judge. (1) The difference in the value of plaintiff’s land before and after the overflow in question, or before and after the diversion of the surface water by the embankment and culvert, was not the legal measure of plaintiff’s damages, and plaintiff had no right to recover permanent damages. Ready v. Railroad, 98 Mo.

<p>APPELLATE PRACTICE: New Trial: Weight of Evidence. The ruling of the trial court in granting a new trial on the ground that the weight of evidence was against the verdict, will, not he reviewed by the Court of Appeals, when there was abundant evidence to sustain the view that the verdict was wrong.</p>

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The two returns of the constable to the two notices of change of venue, in stating that the defendant in that suit could not be found after true and diligent search, did not warrant service by publication under Revised Statutes 1899, section 3974, and the court failed to obtain jurisdiction over the person of the defendant. Reinhart v. Varney, 72 Mo.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) The plaintiff was not a passenger on defendant’s train, and the duty owning by defendant to him was not that high degree of skill and care which it owed to passengers, but the duty of exercising ordinary care' to avoid injuring him. Higgins v. Railroad, 36 Mo. 418; Lovell v. Howell, L. R. 1 O. P. Div. 161-169; State to use v. Railroad, 63 Md. 433; Washburn v. Railroad, 3 Head 638, 75 Am.

Louis County Circuit Court. — Ho», John W. McElhinney, Judge. (1) To warrant interference, on the ground of ex-cessiveness or inadequacy, with the verdict of the jury in a case of damages, the verdict must be so excessive or inadequate as to indicate prejudice, passion or mistake.

— Son. Charles D. Stewart, Judge. If the state of facts outlined in this petition fails to constitute fraud, then it would be hard, for the human mind to conceive what wrongful acts or under what conditions wrongdoing would constitute fraud. Alexander v. Relf, 9 Mo. App. 143; Schultz v. Christman, 9 M'o. App. 588; Rennells v. Hewitt, 10 Mo. App. 592; Scott v. Haynes, 12 Mo. App. 593; Hoffman v. Gill, 102 Mo. App. 320; Nichols v. Stevens, 123 Mo>. 117; Link v. Link, 48 Mo.

Louis City Circuit Court. — Eon. Daniel D. Fisher., Judge. (1) The contract in question is one of life insurance. This is settled by an overwhelming array of authorities, from which we need only cite: Toomey v. Knights of Pythias, 147 Mo. 129; State v. Merchants’ Exchange, 72 Mo. 146; National Union v. Marlow, 74 Fed. 775; Commonwealth v. Weather by, 105 Mass. 148; Kern v. Supreme Council, 167 Mo. 471, 67 S. W. 252.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) A building and loan association has no* power, while a going concern to assign the notes of its borrowers. R, S. 1889, secs. 2811, 2813; R. S. 1899, secs. 1361, 1362, 1363, 1368; Lovelace v. Pratt, 163 Mo. 76. (2) Corporate acts, in order to be unlawful and void, need not be immoral or expressly prohibited. It is sufficient that they are unauthorized, and therefore impliedly prohibited.

— Hon. David H. Bby, Judge. (1) Instructions 1 and 2 given for plaintiff are to be read as one instruction. By them the court peremptorily instructed a verdict for plaintiff, because defendant had not placed the deed in escrow within the thirty days, and directed a verdict for the return of the portion of the purchase money paid by plaintiff, $500 and interest.

Louis City Circuit Court. — Hon, Robert M. Foster, Judge. (1) Where a member of a benefit society contracts in advance, in his application and certificate, that subsequently enacted laws shall form the basis of his contract, and expressly binds himself and beneficiary to be governed by such laws, an after-enacted law reducingthe amount agreed to be paid in the certificate in the event of the suicide of the member, will be enforced. Knights of Maccabees'v. Hammers, 81 111.

Louis City Circuit Court. — No». Daniel Cf. Taylor, Judge. Where part of a pleading is adjudged insufficient, but enough remains to constitute a good petition, the issue so remaining must be tried just as if the parts eliminated had never been embodied in the petition. Munford v. Keet, 154 Mo. 49. Upon striking out parts of the third amended petition the court lost jurisdiction to proceed further in the case.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence for the folloAving reasons: If the plaintiff was injured by the negligence of any one except himself, it Avas by the negligence of a fellow servant.

Louis City Circuit Court. — Hon. O. Orrick Bishop, Judge. (1) The test of usury in a contract is whether it would, if performed, result in securing a greater rate of profit on the subject-matter than is allowed by law. Webb on Usury, par. 29.

Louis City Circuit Court. — Hon. Jesse ' A. McDonald, Judge. . Tbe court erred in refusing to give instruction in tbe. nature of a demurrer, and in submitting tbe case to tbe jury, (a) The rendition of bills and payment of same for seventeen consecutive months constituted an account stated, and settlement. That this was tbe fact was admitted by counsel for plaintiff. Rutledge v. M'oore, 9 Mo. 537; McCormick v. Sawyer, 104 Mo. 36.

— Hon. Nat. M Shelton, Judge. (1) In defendant’s answer the first clause is a general denial. This is a complete waiver of a notice from the appellant, if such notice was required. Crenshaw v. Insurance Co., 71 Mo. App. 42; McCormick v. Insurance Co., 56 Mo. 575; Life Society v. Hiett’s Adm’r, 19 U. S. App. 173; Moore on Carriers, p. 338, sec. 27; Hase v. Railroad, 35 S. W. 476; Greathouse v. Railroad, 17 S. W. 834.

<p>Appeal from Jackson Circuit Court. — Now. John G. Park, Judge.</p> <p>(1) The court erred in giving instruction number one for respondent. Budd v. Hoffheimer, 52 Mo. 297; Turney v. Baker, 103 Mo. App. 390; Lumber Co. v. Tie Co., 87 Mo. App. 167; Mansur v. Botts, 80 M'o. 651; Koenig v. Depot Co., 173 Mo. 698; Gerber v. Kansas City, 105 Mo. 196; Meily v. Railroad, 107 Mo. App. 469; Maggiolli v. Transit Co., 108 Mo. App. 420; Heinzle v. Railroad, 182 Mo. 528. (2) The court erred in refusing to give instruction ten requested by the appellant. Peck v. Transit Co., 178 Mo. 624; Bond v. Railroad, 110 Mb. App. 138.</p> <p>Filed argument.</p>

— Hon. Nick M. Bradley, Judge. (1) There is no evidence to show any common design, or concert of action or understanding between defendants, the purpose of which was to separate plaintiff and her husband. This ivas necessary to sustain her action. Hunt v. Simmonds, 19 Mo. 590; Alexander v. Eefle, 9 Mo. App. 143; Bowman v. Lickey, 86 Mo. App. 47.

— Hon. James H. Slower, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence. No negligence was proven on the part of defendant and the risks attending the condition at the time of the injury were assumed by the plaintiff. Armour v. Hahn, 111 TJ. S. 318; Bradley v. Railroad, 138 Mo. 302; Roberts v. Telephone Co., 166 Mo. 383; Henson v. Packing Co., 113 Mo. App. 618; Bridge Co. v. Seeds, 144 Fed. 613.

— Eon. John G. ' Park, Judge. (1) There was np evidence of any negligence under any law, -whether applicable to charities or otherwise. Gorson v. Mfg. Co., 186 Mo. 1. c. 307; Caudle v. Kirk-bridge, 117 Mo. App. 1. c. 417. (2) A charitable corporation is liable neither for the negligence of its servants nor negligence in the selection of servants. Ins. Patrol v. Boyd, 120 Pa.

— Hon. Edward P. Gates, Judge. (1) Instruction nine asked by defendant Zorn should have been given, because, even if the jury believed that Prince had made a contract for Zorn, that the latter should pay Bissell a thousand dollars, the contract was void because the testimony admitted that Prince had no other authority than that of an attorney, and, as such, had no authority to make a contract. Young v. Crawford, 23 Mo. App. 432; Kingsbury v. Joseph, 94 Mo. App. 298.

<p>Appeal from Jackson Circuit Court. — Hon. John G. Park, Judge.</p>

— Hon. Edward P. Gates, Judge. (1) “To support a recovery there must be substantial evidence of every material fact necessary to a recovery.” Murdock v. Brown, 16 M'o. App. 548. “The evidence must be of tangible facts upon which the triers can base a reasonable belief, and from which they may make rational deductions and calculations,” Mc.Coney v. Wallace, 22 Mo. App. 377. The court should have granted defendant a new trial in this cause. Taylor v. Fox, 16 Mo.

— No». E. E. Yates, Special Judge. (1) Tlie court erred in overruling the demurrer to the evidence tendered by defendant at the close of plaintiff’s evidence and refusing to give the peremptory instruction asked by the defendant, at the close of all the evidence in the c^ise, for the reason that plaintiff has no cause of action against the defendant. The defendant was not negligent. The plaintiff was negligent.

— Hon. William H. Marlin, Judge. (1) Under the decisions in this State, where the widow renounces the provisions of a will or the provisions of the statute and elects to take dower under the provisions of-section 2939, Revised Statutes 1899, she is entitled, after the payment of the debts of the estate, to one-half of the remainder in the first instance and also entitled to her homestead in the remaining half.

— Hon. Henry M. Ramey, Judge. (1) The court erred to defendant’s prejudice in refusing to permit appellant to show the market value' of this stock and the value of the property owned and controlled by the Woods Gold Mining Company. Bank v. Ragsdale, 171 Mo. 186; Warren v. Manfg., 161 Mo. 124; Wall v. Ice and Cold Storage Company, 112 Mo'. App. 666; Rickey v. Tenbroeck, 68 Mo. 567. (2) Instruction number one given in behalf of plaintiff is erroneous.