Volume 123 — Missouri Appeal Reports

— Son. Alonzo D. Burnes, Judge. (1) It was error to refuse to strike out second paragraph of the petition. (2) It was error to give instruction number 5 on behalf of the plaintiff.

— Hon. Howard Cray, Judge. (1) There was a failure of proof to sustain the cause of action stated in the petition. The allegata must correspond with the probata. Rutledge v. Railway, 110 Mo. 318; Clements v. Yates, 69 Mo. 625. (a) There was a total failure of evidence to support a finding of conversion. The taking was lawful. 1 Addison on Torts (Woods Ed.), sec. 471.

— Hon. John G. Parle, Judge. (1) The court erred in refusing to give defendant’s peremptory instructions asked at the close of plaintiff’s evidence, and again at the close of all of the evidence. On the whole record plaintiff was not entitled to recover. Sanders v. Chartrand, 158 Mo. 362; Cummings v. Hurd, 49 Mo. App. 145; Sharp v. Knox, 48 Mo. App. 169; Gibson v. Zeibig, 24 Mo. App. 66; Grocery Co. v. Capen, 23 Mo. App. 301; Wheeler v. Mfg. Co., 23 Mo.

— Hon. Howard Gray, > Judge. (1) Wliere the contract of sale is still executory, the remedy of the vendor for a failure or refusal to accept or pay for the goods, is a personal action for a breach of the contract. Northrup v. Cook, 39 Mo. 208. (2) If the buyer, without cause, refuses to accept and pay for the goods sold, the seller may resell the same and recover as damages the difference between the contract price and the amount realized upon the resale.

— Hon. Hugh Dabbs, Judge. (1) Plaintiff was not a passenger and defendant’s employees had the right to put her off, haying gotten on the car without any money to pay her fare and without intention of paying fare.

— Hon. Charles A. Denton, Judge. (1) The court erred in giving a peremptory instruction at the close of all the evidence, directing the jury to find for the plaintiff in the amount sued for. Dorsey v. Railroad, 83 Mo. App. 528; Steube v. Christopher, 85 Mo. App. 640; Pauck v. Dressed Beef Co., 159 Mo. 467; White v. Dyer, 81 Mo. App. 643; R. S. 1899, sec. 544; Slaughter v. Davenport, 151 Mo. 26; McLaran v. Wilhelm, 50 Mo.

— Hon. Henry L. McCune, Judge., (1) Plaintiff cannot sue upon one contract and recover upon another. Marcum v. Smith, 26 Mo. App. 460; Cosgrove v. Realty Co., 175 Mo. Ill; Cole v. Armour, 154 Mo. 351. (2) The evidence of plaintiff shows conclusively that the contract actually made between the parties contained a proviso or condition which should have been plead and proved by plaintiff. Bayse v. Ambrose, 32 Mo. 484; Ricketts v. Hart, 73 Mo.

— Hon. Samuel Davis, Special. Judge. ' (1) The swearing of the grand jury is absolutely essential to its organization. R. S. 1899, see. 2486; 1 Bishop’s Criminal Procedure, sec. 856 (1 Ed.), page 493; 10 Encyclopedia of Pleading and Practice, page 379; State v. Armstrong, 167 Mo. 267; Ridling v. State, 56 Georgia 601; Arthur v. State, 3 Texas 405.

Dade Circuit Court. — Hon. Levin W. Shafer, Judge. (1) Letters of administration issued in violation of law are void. The statute requires letters of administration to be granted, first, to the husband or wife; second, to those entitled to distributive shares of the estate.

— Eon. John P. Butler, Judge. (1) The question of the Statute of Frauds is raised by a general denial in an action on the contract. Hackett v. Bickel, 138 Mo. 502. (2) The contract of sale between the McNealvs was within the Statute of Frauds. R. S. 1899, sec. 3419; Palmer v. Elsberry, 79 Mb'. App. 570; State v. Durant, 69 Mo. App. 390. (3) There was no partnership between McNealy and Bartlett. It was executory, and at the most an agreement for a future partnership.

— Eon. William E. Martin, Judge. (1) Tbe court erred in ruling that plaintiff was incompetent to testify to wbat occurred between her and her husband when no one else was present. Tbe petition charged that he threatened to assault her and do her personal violence and made demonstrations as if to carry out said threats. She was competent to testify to such matters. Sehweikert v. Sehweikert, 108 Mo. App. 477; Maget v. Maget, 85 Mo. App. 9.

— Hon. Henry M. Barney, Judge. The court erred in giving plaintiff’s second instruction: (1) it was not supported by evidence; (2) it was not within the issues made by the pleadings; (3) it is inconsistent with other instructions given, and is directly contradicted by them; (4) it is not the law. Winkelman v. Electric Light Co., 110 Mo. App. 189; Politowitz v. Citizens’ Tel. Co., 115 Mo. App. 57; Ryan v. Transit Co., 190 Mo. 631.

— Now. Hugh Dabbs, Judge. (1) The court erred in not giving defendant’s instructions to find for the defendant at the close of plaintiff’s evidence, and at the close of all the evidence. Molyneux v. Railroad, 81 Mo.

Francois Circuit Court. — Hon. James D. Fox, Judge. Statement. — The suit is on a certificate of insurance issued to John P. Tice by the defendant corporation, in which certificate Madison M. Tice, the father of John Tice, is named as beneficiary. In his application for insurance John Tice agreed that the general laws, rules and regulations of the Order should be made a part of the contract of insurance.

Charles Circuit Court. — Hon. James D. Barnett, Judge. (1) The information does not allege that the prosecuting attorney preferred the charge “under his oath of office.” Section 2750 so demands. And aside from the mandate of the statute, the term “information” requires such allegation. The information authorized by article 2, sec. 12, of the Constitution, is one sufficient at common law.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) Tbe general rule that there can be no contribution between tortfeasors is applied only in cases of intentional and conscious wrongdoing, in other cases of tort, it is allowed. 1 Kinkead’s Commentaries on Torts, sec. 85; Bailey v. Bussing, 28 Conn. 458; Jacobs v. Pollard, 10 Cush. (Mass.) 287; Dysart v. Crow, 170 Mo. 275; Armstrong County v. Clarion County, 66 Pa.

— Son. Jas. L. Fort, Judge. Our contention is that the court erred in refusing to give defendant’s demurrer at the close of the evidence and also in overruling defendant’s motion in arrest of judgment. The petition is fatally defective.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) The contract expressly provides that suit, if brought on the contract, must be brought within one year after the date of the death of the member. The contract, being made in the State of Illinois, between parties citizens of that State, and to be performed there, its validity must be determined by the law of Illinois. Roach v. Type Foundry, 21 Mo. App. 118.

Louis City Circuit Court. — Son. Walter B. Douglas, Judge. (1) The court erred in giving instruction number 2 on behalf of plaintiff. The first objection to this instruction is, that it permits a recovery, even though plaintiff’s negligence was “cotemporaneous and coincident with his injury.” Holwerson v. Railroad, 157 Mo. 257; Moore v. Railroad, 176 M'o. 528; Ries v. Transit Co., 179 Mo. 1; Reno v. Railroad, 180 Mo. 469; Beach, Cont.

— Son. Charles D. Stewart, Judge. There was, in fact, no evidence to show that one of defendant’s engines caused the fire. If the fire is discovered immediately after the passing of an' engine, it has been held presumptive evidence if the fire caught in combustible matter on or near the right of way. That Otis Oo. v. Railroad, 112 Mo. 630. The facts, according to decisions in this State, made a prima facie case for the jury. Kenny v. Railroad, 70 .

— Eon. Charles D. Btewart, Judge. (1) After fences have been once erected as required by law, the company is only liable for a negligent failure to maintain such fences and it is therefore entitled to a reasonable time in which to- make repairs, after having knowledge of a defect or after that period has expired in which by the exercise of reasonable diligence it could have knowledge of such defect.

<p>PRACTICE: Prima Facie Case: Breach of Contract. In an action on a promissory note where the defendant filed several counterclaims demanding damages against plaintiff for violation of a contract respecting chattels covered by a mortgage securing the note sued on, the evidence is examined and held insufficient to make out a prima facie case on the counterclaims and a peremptory instruction to find for plaintiff was proper.</p>

— -No». F. G. Johnston, Judge. It is a well-settled principle of law that the doctrine of estoppel applies to municipal corporations as well as to private individuals. Depot Co. v. St. Louis, 76 Mo. 393; State ex rel. v. Murphy, 134 Mo. 567; Stealey v. Kansas City, 179 Mo. 407; Kneeland v. Gilmon, 24 Wis. 39, 15 L. R. A. 405, 410. A village is estopped from denying the legal passage of an ordinance after it has published the same in pamphlet form. 16. L. R. A. 178.

Louis City Circuit Court. — Eon. William M. Kinsey, Judge. (1) A fund deposited in joint names of husband and wife is, prima facie, the joint property of both in equal shares. State ex rel. y. Brady, 53 Mo. App. 202; Armstrong y. Johnson, 93 Mo. App. 492. • (2) Even if the business belonged to the wife, permission of the wife for the husband to conduct it as his own, as between a creditor and the wife, estops her from claiming the same as her own. Leete y. Bank, 115 Mo. 204.

Louis City Circuit Court. — Hon. O. Orrioh Bishop, Judge. (1) (a) The court erred in refusing to give the peremptory instruction offered hy appellant at the close of all the evidence because there was no evidence to sustain any of the allegations of negligence contained in respondent’s amended petition, (b) Because the evideuce failed to show that any of the alleged acts of negligence caused, or contributed to the cause of the death of Patrick J. Naughton.

Louis City Circuit Court. — Eon. O’Neill Ryan, Judge. (1) It is error for the court to instruct the jury that any fact may he presumed from another fact unless the presumption be one of law. Glovers’ Admr’s v. Duhle, 19 Mo. 360; Moies v. Eddy, 28 Mo. 382; Steinwender v. Creath, 44 Mo. App. 356.

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

<p>PRACTICE: Harmless Error. The exclusion of unimportant testimony by the trial court, even if erroneous was harmless where the same testimony was, subsequently in the trial, admitted in evidence.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) In considering a request for a peremptory instruction asked by defendant, the testimony offered in the cause favorable to plaintiff should be taken as true, and every reasonable inference therefrom be drawn in his favor. Story v. Transit Co., 108 Mo. App. 430; Baxter v. Transit Co., 103 Mo. App. 597; Holman v. Mining & Smelting Co., 102 Mo. App. 423; Pauck v. Beef .& Provision Co., 159 Mo. 467.

— Eon. David E. Eby, Judge. (1) The seventeenth subdivision of the section cited below defines it to be, “the place where the family of any person shall permanently reside in this. State.” We start out then with the premise, that where the family of E. P. Triplett permanently resided, there the la.w fixes his residence. R. S. 1899, sec. 4160. Now section 3404, Revised Statutes 3899, requires the filing of the mortgage in the county where the mortgagor resides.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) While it is not entirely clear it is, perhaps probable under the present state of the law in Missouri, that a common carrier may by express contract exempt itself from the consequences of its own negligence by stipulating concerning the yalue of the property which it undertakes to convey and liquidating its liability to the yalue stated, and said express contract must be founded upon a valuable consideration,-…

— Hon.. E. M. Hughes, Judge. '(1) There is no right to relief in equity pleaded in plaintiff’s bill or established by the proof. The most that can be said of the pleading and proof is that it is shown that Brown & Weber entered into an oral contract with plaintiffs; that it was agreed that said oral contract should be reduced to writing; that it was not reduced to writing, and defendant violated the terms of the oral agreement.

— Hon. Henry G. Pepper, Judge. (1) That the remedy sought by appellants may be obtained properly upon motion, sustained by the accompanying records and proceedings of the courts and affidavits of facts alnmde, would seem to be beyond question, and this may not be disputed in this court as it was in the court below, although plaintiff treated the motion as being essentially a petition, which plaintiff has formally answered accordingly, thereby expressly joining issue upon its…

— Hon. David H. Eby, Judge. (1) The judgment of a sister State is prima facie evidence of the jurisdiction of the person of defendant where the writ was returned “executed” although such return may be informal. Wilson v. Jackson, 10 Mo. 329. (2) And where facts touching the acquisition of jurisdiction fully appear, judgments of justices of the peace are regarded no less favorably than those of courts having more extensive powers. Leonard v. Sparks, 107 Mo. 103.

— Hon. David H. Ely, Judge. The proximate cause of plaintiff’s injury was the slipping of the crowbar in the hands of Walter Dent, plaintiff’s fellow-servant, for whose negligence the defendant is not liable to plaintiff. (1) This cause of action accrued in the State of Illinois. In that State the common-law rule obtains as to the liability of an employer to an employee for the negligence of the latter’s fellow-servant.

— Hon. David H. Hby, Judge. (1) It will be noted that the trial judge set aside the verdict solely upon the assumption that Mr. Drunert, the person who was appointed guardian ad litem for the infant defendant, failed to accept the trust or to file any pleadings, or to appear for the infant. This assumption, we contend, was unwarranted. It is elementary law that there is a legal presumption that all officers do their duty. Cemetery Assn. v. McCune, 119 Mo.

— Hon. L. B. Woodside, Judge. (1) It is elementary law that in prosecutions for petit larceny that the information must allege, and the proof show that the stolen property had some value under thirty dollars at the time it was stolen. 1 McClain on Criminal Law, sec. 586. Further, this rule is conceded to be correct by Burgess, J., in State v. Weber, 156 Mo. 259; Miller v. Brvden, 34 Mo. App. 602; State v. Wheeler, 108 Mo. 658.

— Eon. W. N. Evans, Judge. (1) The adoption being in derogation of the common law, and of purely statutory enactment, like all other similar statutes, must be strictly followed, and the proof must be so cogent, clear and forcible as to leave no doubt in the mind of the chancellor. There must be no equivocation or uncertainty in the case. It must be in terms a contract, and not a mere declaration of intention.

— Hon. Jas. D. Barnett, Judge. . (1) Mrs. Vaughn was a stranger to the record and the court erred in entertaining her motion to quash levy and vacate sale of her property. The court cannot in this manner try title to property. Oope v. Snider, 99 Mo. App. 501; State ex rel. y. Clyners, 81 Mo. 122; Hoover v. Railroad, 115 Mo. 81; Stove Co. v. Butler, 121 Mo. 638; Gay v. Orcutt, 169 Mo. 407.

<p>1. APPELLATE PRACTICE: New Trial: Reasons for Granting New Trial. Where the trial court sustains a motion to set aside a verdict and grants a new trial, giving no specific reason for its action, the appellate court must take into consideration all the grounds assigned in the motion and, if any one of them is sufficient, will affirm the judgment.</p> <p>2. HUSBAND AND WIFE: Husband as Agent of Wife: Husband’s Earnings. Where a wife rents land, the fact that her husband does all the work on the land, sowing, preparing and reaping the crop, does not give him any. interest in the crop.</p> <p>3. PRACTICE: New Trial: Peremptory Instruction. Where the court in effect instructed the jury to find for plaintiff upon an issue about which the evidence was contradictory, this was error justifying the sustaining of a motion for new trial.</p> <p>4. -: -: .Instruction. Where the trial court refused an instruction- upon an issue concerning which evidence was introduced, it was error, and justified the court in granting a new trial for that reason.</p>

<p>Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.</p>

— Eon. David E. B'by, Judge. “Nothing is better settled in' this State than that a subsequent agreement which does not form any part of an original contract, nor is supported by the original consideration thereof, nor 'by any new consideration, is a mere nudum paotum of no force or validity.” Macfarland y. Heim, 127 M’o. 327; Williams v. Williams, 67 Mo. 662; McMahan y. Geiger, 73 Mo. 145; Montgomery v. Auchley, 92 Mo. 126.

— Hon. David H. Hby, Judge. (1) The court erred in admitting evidence tending to show the defective condition of the sidewalk and its entire reconstruction some six weeks after the time of the accident in question. Bailey v. Kansas City, 189 Mo. 503; Mitchell v. Plattsburg, 33 Mo. App'. 555; Brennen v. St. Louis, 92 Mo. 482; Alcorn v. Railroad, 108 Mo. 81.

— Eon. B. D. Rodgers, Special Judge. Contracts of separation between husband and wife cannot be enforced by an action at law, and will not be sustained even in equity cases when they are ex-ecutory in nature. M'cBreen v. McBreen, 154 Mo. 323; Chouteau v. Douchouquette, 1 Mo. 667; Sackman v. Sackman, 143 Mo. 576; Roberts v. Hardy, 89 Mo. App. 86; 25 Am. and Eng. Ency. Law, p. 456.

<p>1. BILLS AND NOTES: Execution by Mark: Presumption. Where it was shown that the maker of a note executed it by making his mark to it and at the same time executed and acknowledged a deed of trust to secure it, the presumption arises that he was acquainted with its contents.</p> <p>2. -: Possession: Presumption of Ownership. The possession of a negotiable promissory note is prima facie evidence of ownership in the possessor.</p> <p>3. PRACTICE: Instruction: Presumptions. An instruction which ■ requires the plaintiff to prove facts which the law presumes in his favor in order that he may have a verdict, is reversible error.</p> <p>4. -: -: Error Cured by Other Instructions. A party is not estopped to complain of an erroneous instruction given on behalf of his adversary because he did not offer an instruction which would cure the error.</p>

<p>Appeal from St Louis Oity Circuit Court. — Hon. Bobt. M. Foster, Judge.</p> <p>(1) Where specific acts of negligence are alleged, evidence of other acts is inadmissible. Atchison v. Railroad, 80 Mo. 213; McCarty v. Hotel Co., 144 Mo. 397; Fuchs v. St. Louis, 167 Mr. 640; Garven v. Railroad, 100 Mo. App. 617; Spiro v. Transit Co., 102 Mo. App. 250. (2) Negligence and wantonness or willfulness cannot coexist. Boyd v. Transit Co., 108 Mo. App'. 303; Maggioli v. Transit Co., 108 Mo. App. 416; Ruebsam v. Transit Co., 108 Mo. App. 437. (3) The ‘‘necessary injury” spoken of in the statute means the necessary pecuniary loss of the parents resulting from the death of the child, and the court’s instruction must point out the elements of damage which the jury may take into consideration. Rains v. Railway Co., 71 Mo. 164; Parsons v. Railway Co., 94 Mo. 287; McGowan v. Ore & Steel Co., 109 Mo. 519; Leahy v. Davis, 121 Mr. 227; Hickman v. Railroad, 22 Mo. App. 344; Stumbo v. Zinc Co., 100 Mo. App. 639; Coleman v. Land & L. Co. 105 Mo. App'. 272; Brunke v. Telephone Co., 112 Mo. App. 626.</p> <p>(1) Evidence of other acts is admissible where such acts are in a sense collateral to that which is charged in the pleading, tending to draw an inference upon the particular act or omission, that the same was not a mere accident, and also the habits of certain of the employees. Franklin v. Railroad, 97 Mo. App. 480; Rose v. St.'Louis, 152 Mo. 602; Golden v. Railroad, 84 Mo. App. 59; Golden v. Clinton, 54 Mo. App. 115; Brnnke v. Telephone Co., 90 S. W. 753; 11 Am. and Eng. Ency. Law (2 Ed.), p. 512. (2) ■. It is proper to include words . “having due regard to the mitigating or aggravating circumstances” in an instruction where the evidence war-wants. McCarty v. Transit Co., 91 S. W. 132; Rains v. Railroad, 71 Mo. 164; Nagel y. Railroad, 75 Mo. 653; Nichols v. Winfrey, 79 Mo. 544; Parsons v. Railroad, 94 Mo. 286. (3) Where there were aggravating circumstances the jury should not be restricted to a mere question of dollars and cents. Morgan v. Durfee, 69 Mo. 469. (4) It was the duty of counsel for defendants to ask instructions limiting the elements of damages, and court did not err in the giving of instructions for plaintiff. Geisman v. Electric Co., 173 Mo. 679; Barth v. Railroad, 142 MO'. 556; McGowan v. Ore & Steel Co., 109 M'o. 541.</p>

— Eon. J. C. Shepard, Judge. The court erred in giving instruction number two of its own motion, for the reason that it is a comment on the evidence, and ignores all the evidence except the evidence of Hawkins and Sullivan for defendant, and Cox for the plaintiff, and points out certain testimony, which the court should refrain from doing. Rose v. Spies, 44 Mo. 20; Bank v. Currie, 44 M'o. 92; McClure v. Ritchie, 30 Mo. App. 445; Copp v. Hardy, 32 Mo.

Louis City Circuit Court. — Eon. Warwick Hough, Judge. (1) In an action brought by a trustee for creditors of an insolvent mutual insurance company, against its policy holders, for an assessment, the foundation of the action is the statutory obligation resting on each policy holder to pay his just per cent of its debts incurred while he was insured in it, as defined by the assessment decree.

— Hon. Joseph J. Williams, Judge. (1) There was not sufficient evidence to establish the fact that the fire was communicated from defendant’s engines, and the court should have so instructed the jury. Gibbs v. Eailroad, 104 Mo. App. 276; Wright v. Eailroad, 107 Mo. App. 209; Peffer v. Eailroad, 98 Mo. App. 291; Fields v. Eailroad, 113 Mo. App. 642; Bank v. Eailroad, 98 Mo. App. 330; Peck v. Eailroad, 31 Mo. App. 123; Moore v. Eailroad, 28 Mo. App. 622.

— Eon. William B. Teasdale, Judge. (1) Declarations of one in possession of property explanatory of his possession, as that he held in his own right or as tenant or trustee, is admissible for that purpose. Railroad v. Clark, 68 Mo. 874; Harper v. Morris, 114 Mo. 325. (2) Declarations by one in possession of real property concerning the nature of his occupancy, are admissible as res gestae. Harper v. Morris, 114 Mo. 325.

— Hon- Hugh Dabbs, Judge. Where a political division of the State adopts resolutions or by-law prohibiting cattle and other animals running at large such action excludes from that territory the operation of a general law on the subject. 2 Cyc., p. 487; Suander v. Wakefield, 84 111. App.' 426, 25 Tex. 670; 29 Tex.

— Hon. Joshua W. Alexander, Judge. (1) The court committed error in refusing to give the demurrer to the evidence offered by defendant. There was no negligence proven against the defendant. 2 Thompson on Negligence, sec. 1922; Brown v. Railroad, 89 Mo. App. 192; Railroad v. Clarke, 35 Neb. 867; Railroad v. Walkenshaw (Kan.), 81 Pac. 463; Railroad v. Pike (Ind.), 74 N. E. 636; Webb v. Railway, 202 Pa. St. 511; Railroad v. Stinger, 78 Pa. St. 219; Parley v. Harris, 186 Pa.

— Eon. W. W. Graves, Judge. (1) The court erred in admitting evidence of G. G. Council, George W. Jessop and T. A. Harris. The evidence relating to conversations with third parties; to matter not involved in the pleadings, and incompetent. Lester v. Railroad, 60 Mo'. 267; King v. Railroad, 98 Mo. 240; Brooks v. Blackwell, 76 Mo. 310; Ritter v. Bank, 87 Mo. 575; Gorham v. Auerswald, 53 Mo. App. 134; Trust Co. v. Lumber Co., 118 Mo. 462.

<p>1. DAMAGES: Value of Services: Jury. Though the extent and value of services seem greatly exaggerated, yet where two juries have placed a similar value upon them the question is settled for the courts.</p> <p>2. SERVICES: Manner of Payment: Right To. If remuneration is expected and promised for services the servant is entitled thereto though he may not get it in the form expected; and where' the evidence tends to raise the expectancy of a legacy such, fact does not cut off the servant from his action for compensation.</p> <p>3. QUANTUM MERUIT: Services: Law and Fact: Evidence: Instruction. Where the acts, conduct and statement of parties imply a duty to pay for services rendered the intention is disregarded and so where a party out of the pale of family relations renders at his request services to a sick man the law implies a promise to pay a just and reasonable compensation and such remuneration is recoverable on quantum meruit, and an instruction need not refer to the intention of. - the servant to charge.</p> <p>4. -: Measure of Recovery: Third Parties: Instruction. Where service is rendered by a servant at the request of a sick man it does not necessarily imply that such servant can charge for the services of her husband and a hired employee and an instruction to that effect is condemned though free of other objections urged against it.</p> <p>5. -: Defense: Payment: Burden of Proof: Instruction. Where in an action by a servant to recover for services the rendering of the service is admitted and the defense of payment is set up the burden is upon the defendant to prove such defense to the satisfaction of the jury and an instruction is approved.</p> <p>6. -: -: -: Settlement With Husband. Under a plea of payment the fact that the deceased person for whom the service was rendered had settled with the servant’s husband is immaterial since such settlement would not discharge the servant’s demand.</p> <p>7. -: Administration: Statement: Sufficiency of. The statement of a demand against an estate set out in the opinion is held sufficient since it informs the administrator of the nature of the claim.</p> <p>8. -: Services: Instructions. Certain instructions are reviewed and approved or condemned.</p>

— Eon. Henry L. McGune, Judge. (1) After the executory contract for the conveyance of real estate has been entered into by the execution of a bond for title and notes for the purchase money, the property is at the risk of the purchaser. If it burns up it is his loss, if it increases in value it is his gain. Snyder v. Murdock, 51 Mo. 175; Loventhal v. Ins.

— Eon. Eoward Gray, Judge. (1) Defendants did not know that plaintiff was placing them in the hands of the special confidant of Nicholson, or that plaintiff and his friend were acting in a dual capacity. Therefore, the contract of plaintiff to receive compensation for a sale to Nicholson, is contrary to public policy, and void. Lum v. McEwen, 56 Minn. 278; Atlee v. Frank, 75 Mo. 100; Summers v. Carey, 74 N. Y. Supp. 980, 69 App: Div. 428; Norman v. Roseman, 59 Mo.

— Hon. L. W. Scott, Judge. (1) Having accepted these checks with the recitals thereon and having indorsed and cashed them, they became defendant’s contract. Gregg v. Land & Mining Co., 97 Mo. Ápp. 49. (2) The court erred in refusing to give instruction to the effect that the jury must find against the defendant on his counterclaim. (3) The court erred in giving instruction numbered 2 on behalf of the defendant.

— Hon. William H. Martin, Judge. (1) The statement, “for services rendered per contract,” was wholly insufficient to constitute a cause of action, or sustain a judgment and defendant’s objection to the introduction of any evidence under the statement and the pleadings should have been sustained by the trial court. Watkins v. Donnelly, 88 Mo. 322; Seligman v. Rogers, 113 Mo. 660; Braskears v. Stork, 46 Mo-. 221; Carson v. Waller, 104 Mo. App. 621.

— Hon. Levin W. Shafer, Judge. (1) The court erred in admitting evidence offered by the plaintiff over the objection of the defendant. Gurley v. Railroad, 194 Mo. 223; Roddy v. Railroad, 104 Mo. 244; Froth v. Norcross, 111 Mo. 630; Yarnell v. Railroad, 113 M'o. 578; Barney v. Railroad, 126 Mo. 372; Fuback v. Railroad, 167 Mo. 215. (2) The court erred in refusing to sustain the defendant’s demurrer to plaintiff’s evidence, and also in refusing to give instruction numbered 1.

— Hon. Henry L. MoGune, Judge. (1) Tbe demurrer to tbe evidence and tbe request for a peremptory charge should have been granted. Tbe evidence is insufficient to authorize a verdict. Gourley v. Railroad, 35 Mo. App. 92; Igo v. Railroad, 38 Mo. App. 381; Senn v. Railroad, 108 Mo. 150; Ruschenburg v. Railroad, 161 Mo. 81; Culbertson v. Railroad, 140 Mo. 59; Campbell v. Railroad, 175 Mo. 177; Heinzle v. Railroad, 182 Mo. 555; Mammerberg v. Railroad, 62 Mo'. App. 564.

<p>Appeal from Jackson Circuit Court. — Eon. William B.: Teas dale, Judge.</p> <p>(1) The court erred in the admission of the testimony of Dr. Dora Green Wilson, one of the woman doctors. Taylor v. Railroad, 185 Mo. 239; Boettger v. Iron Co., 136 Mo. 536; Langston v. Railroad, 147 Mo. 465; Glasgow v. Railroad, 191 Mo. 352; Gutridge v. Railroad, 94 Mo. 472. (2) The court erred in rejecting the testimony of Dr. Perkins, offered by defendant in answer to a hypothetical question as to whether the accident as described by plaintiff was sufficient cause to produce the condition in which the witness found plaintiff, upon his examination of her in May, 1904. Same cases cited aboye. Benjamin v. Railroad, 50 Mo. App. 602. (3) The court erred in rejecting the testimony of Dr. Pun-ton, called as an expert by the defendant, upon a proper hypothetical question covering the testimony on the part of plaintiff and the condition in which the witness found the plaintiff, as to whether the injury complained of was sufficient to produce the condition in which the witness found plaintiff in May, 1904. The question was in proper form,and was a proper subject for expert and opinion evidence. Same cases as cited in paragraph 1; Benjamin v. Railroad, 50 Mo. App. 602. (4) The court erred in giving instruction three at the request of plaintiff. While it is not claimed that there is reversible error in not defining the term “preponderance of evidence” in ordinary cases, yet when the court attempts a definition of such a term it is error to give a faulty or misleading definition. This instruction is erroneous because it gives undue prominence to one feature of the case, and to the testimony of “one” witness. Anderson v. Kinchelo, 30 Mo. 520; Blair v. Railroad, 31 Mo. App. 224; Fine v. Public School, 39 Mo. 59; Chappell v. Allen, 38 Mo. 213; Jones v. Jones, 57 Mo. 138; Forrester v. Moore, 77 Mo. 651; Weil v. Schwarts, 21 Mo. App. 372; Chouquette v. Barada, 28 M'o. 498;. Mathews v. Elevator Co., 59 Mo. 474; Barr v. Kansas City, 105 Mo. 559; Sawyer v. Railroad, 37 Mo. 263; Rose v. Spies, 44 Mo. 23; Raysdon v. Trumbo, 52 Mo. 38.</p> <p>(1) No proper objection was made to the question complained of — no objection was made until after the question was answered and the motion was made to strike out the question, not the answer. State v. Hope, 100 Mo. 347; Martin v. Black, 24 Mo. App. 60; Foster v. Railroad, 115 Mo. 165. (2) The objection to the question propounded to Dr. Perkins was properly sustained. (3) The third assignment of error based upon the action of the court in sustaining plaintiff’s objection to question propounded to Dr. Puntan is answered, we think by what has been said by us under point 2. (4) We respectfully submit that there is nothing wrong with the plaintiff’s instruction complained of. The credibility of the witnesses is for the jury. Chinn v. Railroad, 100 Mo. App. 516.</p>

— Eon. John Q. Parle, Judge. (1) The court erred in swearing the panel of eighteen men as to their qualifications as jurors when no attorney or other person connected with the defendant and its defense -was present. (2) The court erred in overruling the defendant’s motion for a change of venue. R. S. 1899, sec. 818.

— Eon. Levin W. Shafer, Judge. (1) It does not violate any rule of public policy for an administrator, after Ms appointment, to enter into a contract, based on a sufficient consideration, to reduce bis legal fees. Greer v. Nutt, 54. Mó. App. 4; May v. Moore, 99 Mo. App. 27; 11 Am. and Eng. Ency. of Law (2 Ed.), 1303; In re Mansfield, 80 Iowa 681; Koch’s Estate, 148 Pa.

— Hon. Hermann Brumback, Judge. (1) This being an appeal from the order of the trial court granting a new trial of this cause for the sole reason specified in the record that the court erred in permitting attorneys for plaintiffs in their argument to make statements not warranted by and in conflict with the evidence of the case, no other ground in support of the court’s action can be considered on this appeal. Folding Bed Co. v. Railroad, 148 Mo. 486.

<p>1. FOREIGN CORPORATIONS: Carrying on Business: Agent. Tbe act requiring resident foreign corporations to take out a license to do business in tbis State applies only to those corporations which establish themselves in' this State and transact business here through the medium of agents and not to corporations who have traveling salesmen or to an isolated or casual business.</p> <p>2. -: Contract With Agent: Sales: Bailment. A contract between a foreign corporation and certain parties in this State is held to be a bailment with agents, for the following reasons:</p> <p>(1) The reservation by the plaintiff of the title to the property;</p> <p>(2) The absence of any mutual intention that the local agent shall become the owner of the property at any time or in any event;</p> <p>(3) Obligation of a local agent not to pay for the goods as upon a purchase made by him but only to pay for goods disposed of by him in the course of the relation. (4) Tbe implied obligation of tbe local agent to restore to tbe foreign corporation tbe goods remaining in bis bands at tbe end of tbe relation;</p> <p>3. -: -: Admissions of Local Agent: Consideration. Certain admissions of tbe local, agent as to tbe character of tbe contract with a foreign corporation are held insufficient to sustain a cause of action, since they were without consideration.</p>

— Hon. Henry M. Barney, Judge. (1) Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall in effect dictate the customs or control the business of the community. Chrismer v. Telephone Co., 194 Mo. 209, and cases cited.

<p>CHATTEL MORTGAGE: Description: Evidence. Following Strop v. Hughes, 123 Mo. App. 547, held the evidence sufficient to identify the mortgaged property.</p>

— Hon. HowcirdGray, Judge. (1) Both under the statute of Missouri and bv the •common law, the right of action for damages to property, sustained during the lifetime of a decedent, passes to his administrator and not to his heirs. R. S. 1899, sec. 96. Music v. Railroad, 114 Mo. 311; Ins. Co'. v. Heiss, 141 111. 35; Green v. Railroad, 65 Hew. Pr. N. Y. 154; Lewis, Em. Dom.

— Hon. Nick M. Bradley, Judge. (1) In answer to the first objection appellant contends that under the law a corporation is required to affix its seal only to such.instruments as had to be sealed by a natural person before private seals were abolished by statute. 1 Purdy’s Beach on Corporation, section 104 and cases cited; 1 Morawetz on Private Corporations, section 338; Water Company v. Muscatine, etc., Company, 85 Iowa 112; Jones on Chattel Mortgages, section 102; City v.…

— Hon. E(hoard P. Gates, Judge. (1) The act of 1891 (Laws 1891, p. 181) did not apply to notes already' executed but not yet barred.Little v. Reid, 75 Mo. App. 270; Stockton v. Teasdale, 115 Mo. App. 215; Bumgardner v. Wealand, 95 S. W. 211. (1) Judging from the language of the petition we assume that appellant is proceeding at law under section 1312, R. S. 1899.

— Hon. Howard Gray, Judge. (1) We.contend that a proper reading of the statute is that the county is prohibited from taxing the performance held in an opera house in any of these cities having less than five thousand inhabitants. An exam* ination of the punctuation shows that the words “And having less than five thousand inhabitants” applies to all cities mentioned.

— Hon. Howard Gray, Judge. (1) If, upon the pleadings and evidence, the plaintiff should not recover, then no error upon the trial of a case can be ground for a new trial and the order granting the new trial must be set aside and judgment entered for the defendant, upon the verdict.

— Eon. Samuel Davis, Judge. (1) Tbe final settlement of a dead man’s estate in tbe probate court is analogous to a proceeding to take an account before a master in chancery. Tbe mode of procedure is essentially equitable in all its aspects and tbe questions presented must be reviewed by this court as chancellors. In re Meeker’s Estate, 45 M'o. App. 194; In re Tucker’s Estate, 74 Mo. App. 331; In re Scholer’s Estate, 73 Mo. App. 301; Ferry v. McGowan, 68 Mo.

<p>1. APPELLATE PRACTICE: Abstract: Original Bill of Exceptions. Where the respondent tacitly admits the correctness of the appellant’s abstract the appellate court cannot require the clerk of the trial court to certify the bill of exceptions.</p> <p>2. WAREHOUSEMAN: Estoppel: Evidence: Instructions. A warehouseman delivered goods to his customer’s wife on her presenting the receipt. She sold them to a second-hand man. The evidence was conflicting as to certain acts and representations made by the customer to the warehouseman and the second-hand man, the warehouseman’s evidence tending to show an estoppel and the customer’s denying the facts. The question of fact was submitted to the jury on instructions without objection. Eeld, the finding could not be disturbed.</p> <p>3. -: -: Offer to Purchase. Though the customer of a warehouseman should offer to buy the stored goods of a third party in whose hands he found them, such fact will not estop him from maintaining conversion against the warehouseman, nor is he compelled to pursue the goods in the hands of such third party.</p>

— Hon. Louis Hofmwn, Judge. Piled argument on merits. (1) No bill of exceptions was filed at the term at which the issue as to Andrew G. Deweese was tried, nor was leave taken to file such bill at any time thereafter. It was too late at the October term, 1905, to file a bill of exceptions as to matter which occurred at a trial during the October term, 1902. The court must pass upon the case upon the record proper as before it. R. S. 1899, sec. 728; Pace v. Shoe Co., 103 Mo.

— Hon. R. Steele Ryors, Judge. (1) In passing on the action of the court in sustaining the demurrer to the evidence at the close of plaintiff’s case, the evidence and every reasonable deduction to be drawn therefrom which tended to support the cause of action must be considered as true, and every reasonable inference to be drawn from the testimony must be in plaintiff’s favor.

— Hon. John G. Park; Judge. (1) Whenever an appellate court can see from the findings that certain facts exist and the existence of other facts can be legally presumed, the court will presume the existence of such facts. Downing v. Bourlier, 21 Mo. 149; Nichols v. Carter, 49 Mo. App. 401. (2) But if this court shall say that the lower court failed to find upon material issues in the case, and cannot legally presume the existence of such facts, then the cause must be reversed.

— Eon. J. D. Perkins, Judge. (1) Tbe petition nor either count thereof states any cause of action. Irvin v. Devors, 65 Mo. 625; Heman v. Allen, 156 Mo. 534; Stifel v. Dougherty, 6 Mo. App. 441. (2) The sufficiency of the petition must be determined alone by the allegations contained therein and the want of proper and necessary allegations cannot be aided by considering the instruments filed as the basis of the action.

— Eon. E. G. Timmonds, Judge. (1) This action is for loss of services, and. therefore it is necessary that there should he an averment that the boy was the servant of the parents and that they were deprived of his services. We respectfully insist that the petition is absolutely barren of any allegation from which these essentials may even be inferred. Scamell v. Transit Co., 103 Mo. App. 511; Dunn v. Railroad, 21 Mo. App. 203.

— Son. John G. Parle, Judge. (1) Tbe court erred in overruling tbe demurrer to tbe evidence, (a) There was not sufficient evidence to take tbe case to tbe jury. Pavey v. Eailroad/85 Mr. App. 218; Kelley v. Eailroad, 105 Mo. App. 365; Howard v. Eailroad, 173 Mo. 524; Glascock v. Dry Goods Co., 106 Mo.

— Hon. Henry M. Ramey, Judge. (1) Defendant was guilty of negligence in kicking or shunting the car back upon plaintiff after seeing him in a perilous condition upon its track and plaintiff will be permitted to recover although a trespasser and having exposed himself to the risk of injury. Klockenbrink v. Railroad, 83 Mo. App. 351; Hutchinson v. Railroad, 88 Mo. App. 376; Degel v. Transit Co., 101 Mo. App. 56; Baxter v. Transit Co., 3.03 Mo.

— Hon. Herman Brumback, Judge. (1) Plaintiff’s own witness testified that the flood was sudden, extraordinary and unprecedented, and such as could not have been anticipated. It was, therefore, an act of providence for the consequences of which the defendant was not liable. It necessarily follows that if the bran in question was destroyed by said flood, the plaintiff cannot recover. Woolsey-Stahl Hay Co. v. Railroad, 113 Mo. App. 651; Moffatt Com. Co. v. Railroad, 113 Mo.

'Appeal from Yernon Circuit Court. — Hon. O. G. Burton, Special Judge. (1) The denial of the garnishee’s answer must contain specifically the grounds upon which a recovery is sought against the’ garnishee. R. S. 1899, sec. 3451. (2) When a pleading is amended by the filing of a new pleading, the amended pleading supersedes the former one, and the party thereby abandons the original pleading and the matters therein alleged.

<p>MUNICIPAL CORPORATIONS: Obstructed Street: Notice: Continued Obstruction. The placing of stone in a street for only two to four hours before an injury is not sufficient to establish constructive notice to the municipality; but where for some time building stone has been unloaded in the street and two or more hours intervene between the removal of one lot of stone from the street to the sidewalk and the delivery of an other lot into the street whence the other lot had just been removed, the continuity of the obstruction is not broken, and the question of notice is for the jury.</p>

— Son. Alexander S. 'Waller, Judge. Since respondent did not set up or claim any special or general property in the steers in controversy and appellant at the trial was conceded to be the owner thereof and entitled to the possession of same, the trial court erred in refusing to give appellant’s peremptory instruction to the jury to find that the plaintiff was the owner of and entitled to the possession of the steers and to one cent damages for the taking and detention…

— Eon. William E. Martin, Judge. (1) The defendant had the legal care and control of the infant, William Brown. R. S. 1899, sec. 1857. This enactment repealed the common law on this subject and rendered it inoperative. It abrogated and annulled it. State v. Slaughter, 77 Mo. 487; State v. Boogher, 71 Mo. 632; Hughes’ Criminal Law, sec. 4544; 26 Encyc. Law, p. 665.

— Hon. James Gibson, Judge. (1) The court erred in refusing defendant’s instruction numbered six, in the nature of a demurrer, to the evidence, at the close of the trial. Plaintiff had failed to prove by any credible testimony that defendant took plaintiff to its “car barn- on East Eighteenth street,” which was a material allegation and necessary to be proved. Spiro v. Transit Co., 102 Mo.

— Eon. William E. Martin, Judge.. (1) The plaintiffs should not have not been permitted to prove issuance, and delivery and renewal of the dramsliip license by the record of the county court. The foundation for this was not laid by giving the required notice. State v. Barnett, 110 Mo. App. 592; Thompson on Trials, secs. 770, 771. (2) Each count in the petition must be complete in itself. In this petition no count in same is complete within itself. Weber v. Squier, 51 Mo.

— Hon. George W. WannemaJcer, Judge. (1) The court erred in refusing the peremptory instruction asked by the defendant for the further reason that the undisputed evidence in this case shows that the defendant had been threatened prior to the time of the alleged carrying said weapon by one Hinton; that Hinton had threatened to shoot him, and Hinton admitted that he had previous.to the time, that he said he was hunting the defendant, threatened to shoot him.

— Eon. John Gr. Park, Judge. (1) Defendant was entitled to have its demurrer sustained or a peremptory instruction given at the close of all of the testimony in the case. Lange v. Ins. Co., 3 M'o. App. 591; McGrath v. Ins. Co., 84 N. Y. • Supp. 375; Ins. Co. v. Rubin, 79 111. 404; Ins. Co. v. Brooks, 83 Md. 22, 34 Atl. 373; Ins. Co. v. Klewer, 129 111. 611', 22 N. E. 489; Oil Co. v. Ins. Co., 64 N. Y. 85; Devens v. Ins. Co., 83 N. Y. 168; Mellen v. Ins. Co., 5 Duer 101; Ins.

— Hon. Shannon O. Douglass, Judge. (1) .An excessive verdict may sometimes be cured by remittitur; but there are exceptional cases including such excessive verdicts as in the case at bar, where the excess in a verdict is not curable by remittitur. Hewitt v. Steele, 118 Mr. 474; Watt v. Watt, L. R., App.

— Hon. Henry L. McGune, Judge. (1) The lapse of seven weeks between the time the summons in the Greenway case was served upon Pringle and the time when the summons reached the office of the general agent of the Aetna Company, is as a matter of laAV, fatal to the respondent’s case. Burnham v. Insurance Co., 75 Mo. App-. 394; Trask v. Insurance Co., 29 Pa. St. 198; Weed v. Insurance Co., 133 N. Y. 394; EdAvards v. Insurance Co., 75 Pa.

— Eon. John G-. Parle, Judge. (1) Where a vendor has contracted to deliver goods at or within a specified time, the vendee is not required to make a demand for the delivery of the goods within such time as a condition precedent to a recovery on the contract. Mount v. Lyon, 49 N. Y. 552; Yail v. Rice, 5 N. Y. 155; Stillwell v. Bowling, 36 Mo. 310; Barrett v. Browning, 8 M'o. 689; Kingsland v. Iron Co., 29 Mo. App. 538.

— Hon. John G. Park, Judge. (1) The court erred in giving instruction, numbered 2-P for plaintiff. The question as to whether plaintiff was guilty of negligence in riding on an overcrowded car was one for the jury and not for the- court. 1 Thompson on Negligence, sec. 425; Corum v. Railroad, 113 Mo. App. 635; Mitchell v. Railroad, 108 Mo. App. 142; Groom v. Kavanaugh, 97 Mo. App. 362. (2) The court erred in giving instruction numbered 1 for plaintiff.

<p>1. ROAD COMMISSIONER: Contractor’s Bond: Payment for Material. The statute requires the road commissioner on letting a bridge to take bond from the contractor to cover all damages which may accrue from the breach of the bridge contract, and it does not require him to take a bond for the payment of all material used and labor performed in such work; this latter duty devolves upon the county court and not upon the road commissioner and he and his bondsmen are not liable for fail- . ure to take such bond.</p> <p>2. -■: -: -. The protective provisions of sections 5186 and 6761, Revised Statutes 1899, may reasonably be inserted in the same bond, but such act does not affect the road commissioner’s duty.</p>