Volume 124 — Missouri Appeal Reports

— Son. Chesley A. Mosman, Judge. (1) The common council was powerless to pass an ordinance directing street improvement without previous recommendation by the board of public works. State ex rel. v. St. Louis, 161 Mo. 378; Cole v. Skrainka, 37 Mo. App. 327, 105 Mo. 303; Verdin v. St. Louis, 131 Mo. 26. (2) The validity of the board’s recommendation depended upon compliance with the provisions of section 8, quoted above. State ex rel. v. St. Louis, 161 Mo. 380.

— Hon. Levin W. Shafer, Judge. (1) Fraudulent combination grounds for equity to set aside. Eitter v. Democratic Press Co., 68 Mo. 458. (2) A party should not be permitted to make the court .an instrument of injustice when it is clear that he had done so in obtaining the judgment sought to be set aside. Lee v. Harmon, 84 Mo. App. 157; Sanderson y. Voelcker, 51 Mo. App. 331; Bresnehan v. Price, 57 Mo. 422.

— Eon. Nat. M. Shelton, Judge. (1) Instruction numbered 1, given on behalf of plaintiff, is erroneous because — (a) It authorized a finding for plaintiff if the jury believed that the city, or any of its officers or agents, knew of the defect, when there was no proof of such knowledge. Gerber v. Kansas City, 105 Mo. App, 191; Danker v. Mfg. Go., 102 Mo, App. 723; Heinzle v. Railroad, 182 Mo. 559.

— Eon. Henry L. MeOune, Judge. (1) -Morían & Son were the owners of the carriage and harness at the time plaintiffs shipped same over defendant’s road and at the time of the accident. The trial ■court erred in refusing to instruct the jury, as asked by defendant, that Morían & Son were the owners of said property at the time of the accident.

<p>1. DEEDS: Consideration: Oral Evidence: Contract. The recitation of the receipt of a dollar as consideration for a gift is hut the expression of the usual form in deeds where no valuable consideration passes- and is in no sense a contractual provision and it is competent to show the true consideration which induces the grantor to make the deed; and where the parol understanding is carried out the grantor has a moral ' as well as a lawful right to consider that his gift has accomplished its purpose and the grantee is held to that purpose.</p> <p>2. -: -: Religious Societies: Change of Name: Executed Contract. In consideration that defendant, a religious society, would change its name to the Bales Chapel Baptist Church plaintiff executed a deed of gift to the defendant for a church and lot, the object being to perpetuate the Bales family name. E-eld, while an executed contract is one in which the object of the contract has been performed this gift was executed so far as the title to the property was concerned, but so far as its purpose, of perpetuating the family name the contract was not an executed but a continuing one, and the name of the society could not be subsequently changed.</p>

— Eon. William E. Martin, Judge. (1) The statement of the plaintiff does not state a cause of action under section 4573, Revised Statutes 1899. The statute is a penal one, and the plaintiff must bring himself strictly within its provisions to recover. Parish v. Railroad, 63 Mo. 287; Potter’s Dwarris on Statutes and Const., 245; State v. Reid, 125 Mo. 43; Dudley v. Tel. Co., 54 Mo. App. 391; Wilson v. Burton, 96 Mo. App. 686.

— Hon. Nat M. Shelton, Judge, (1) The disability not having been immediate and not having arisen at once upon the happening of the alleged accident, the plaintiff by the express terms of the policy should not have been allowed to recover.

— Hon. James E. Hasell, Judge. (1) The appeal without giving a supersedeas bond did not prevent plaintiff from having an execution to enforce her judgment. R. S. 1899, sec. 809; Burgess 164 Mo. 357; McCollum v. Ulen, 92 Mo. App. 884. (2) The title acquired by appellant-by virtue of the sale made by the sheriff of Moniteau county is good and valid, no stay of execution having been ordered and no supersedeas granted.

— Eon. George W. Wcmnemaher, Judge. (1) Plaintiff’s cause of action on the first count was barred by limitation. The trial court cannot take judicial notice of the contents of the records in the former case without such records being introduced in evidence. Spurlock v. Railroad, 76 Mo. 67; Adler v. Lang, 26 Mo. App. 226. (2) It was in error to admit the testimony of John Dunlap, which was read from a bill of exceptions in another suit.

— Hon. Henry M. Ramey, Judge. (1) This court has no jurisdiction of a suit in ejectment for the reason that it is a proceeding to try the title to real estate. Kemgelhoefer v. Smith, 171 Mo. 455.

— Hon. Ghesley A. Mosman, Judge. (1) But however all this may be, the ground of the objection to this testimony is certainly merely formal, the testimony itself is most material; and such formal objections should be made at the time the deposition is taken, in order that an opportunity may be offered for their correction.

— Hon. David H. Eby, Judge. After the lapse of three years from the rendition of the judgment, until revived on scire facias proceeding-transcript of such judgment cannot be filed in the office of the clerk of the circuit court of the county, by plaintiff. Pears v. Goff, 76 Mo. 92; Bick v. Maddox, 87 Mo. App. 30.

<p>Appeal from Ozark Circuit Court. — Hon. John T. Moore, Judge.</p>

— Eon. John T. Moore, Judge. The finding of the court in its order for the election is fatally defective, in that it finds that the signers of the petition constitute one-tenth of the voters, and tax payers of Christian county, section 3027 requires such petitions to be signed by one-tenth of the qualified voters of the county.

— Eon. Henry G. Riley, Judge. (1) It is admitted by defendants that recorder Green negligently permitted and allowed Jackson to enter on the margin of the record satisfaction of the Rice deed of trust without requiring the said Jackson1 to produce the notes secured thereby or to otherwise account for said notes in the manner required by law. This was a violation of a statutory duty on the part of: defendant Green; and a breach of the conditions of his official bond.

<p>1. CONTRACTS: Express Contract. Where the owner of real estate agreed with a plumber that he would pay his part for material and labor furnished by the plumber to lay a pipe and do certain other plumbing work for the owner and the owner of other property adjacent, this was an express contract although the definite sum to be paid for the work could not be ascertained until it was completed.</p> <p>2. -:-: Evidence. In an action on such contract, it was competent for the plaintiff to prove both what the work cost and what it was reasonably worth.</p> <p>3. -: Meeting of Minds: Prima Facie Case. In an action on a contract for labor and material furnished in doing certain plumbing work for defendant, the evidence is examined and held sufficient to show a “meeting of minds” upon the contract sued on.</p> <p>4. PRACTICE: Instruction: Ground Covered. A party can not be heard to complain of the refusal of an instruction if the same point is covered by another instruction. Nor can a party complain of an instruction which is not prejudicial to him or is erroneous in his favor.</p>

<p>Appeal from Dunklin Circuit Court. — Eon. W. 8. G. yV alicer, Special Judge.</p>

<p>Appeal from Wrigbt Circuit Court. — Eon. Argus Cox, Judge.</p> <p>(1) Tbe court failed to ascertain the sufficiency of the petition as is provided by statute. Strouse v. Drennan, 41 Mo. 289; Schell v. Leland, 45 Mo. 289; Gibson v. Vaughan, 61 Mo. 418; Barhydt v. Alexander, 59 Mo. App. 188; Ex Parte O’Bryan, 127 Mo. 477. (2) The order of the county court is defective, for the reason that it orders that notice be given for four successive weeks. The statute says that notice shall be published for four consecutive weeks. This is fatal to the election. State v. Kaufman, 45 Mo. App. 656; State v. Webb, 49 Mo. App. 407; State v. Kampman, 75 Mo. App. 188.</p> <p>(1) In re the first’ contention of appellant set forth in his brief, his abstract of the record admits “that the twenty-two papers referred to were all attached together and contained the same matter so far as the body of the petition is concerned. That they were all attached together and were all presented at one and the same time to the county court of Wright county, Missouri, on the 10th day of August, 1905.” This was sufficient. State ex rel. y. Weeks, 38 Mo. App. 566; State y. Smith, 38 M'o. App. 618. (2) The fourth contention of appellant is that no certificate of election was filed by the clerk. The records of the county court show that the votes cast were examined and cast up and the result ascertained by the clerk and two judges of the court, as provided by law, and the results of the election found .were by the court ordered published as the law prescribes. No certificate was necessary. State v. Searcy, 46 Mo. App. 421, 111 Mo. 236.</p>

<p>APPELLATE PRACTICE: Prima Facie Case: Weight of Evidence. Where there is substantial evidence to support a verdict, the appellate court will not interfere with it, unless the evidence for the losing side is so strong and convincing as to lead irresistibly to the conclusion' that the verdict was the result of passion or prejudice.</p>

— Hon. Henry C. Riley, Judge. It is required that the statement of a cause of action in a case instituted before a justice of the peace shall inform the defendant concerning the demand and be sufficient to bar another case for the same subject-matter. Weese v. Brown, 102 M'o. 299; Rechnitzer v. Vogelsang, 117 Mo. App. 151; Drug Co. v. Johnson, 80 M'o. App. 428; McCrary v. Good, 74 Mo. App. 425; Doggett v. Blank, 70 Mo. App-. 500; Rechnitzer v. Candy Co., 82 Mo. App. 311.

Original Proceeding by Petition for Writ of Mandamus. (1) Relator is a stockholder and he is therefore by statute and common law entitled to examine the books and. records of the company. R. S. 1899, sec. 966. Relator must haye a clear legal right, and no other specific legal remedy. Williams y. Judge of Cooper Court, 27 Mo. 227; Sheridan y. Fleming, 93 Mo. 325.

— Son. Jos. J. Williams_, Judge. (1) The note sued upon in this case is barred, unless the credit on the said note of twelve dollars will save it from the action of the statute; but the entry of itself is not sufficient evidence that it was made at that time.. and there must be evidence aliunde showing the time when the entry was in fact made. Briscoe v. Huff, 75 Mo. App. 288.

<p>1. JURISDICTION: Special Judge: Bill of Exceptions Signed After Term of Office Expires. Where on the granting of a change of venue in a criminal case the judge of another circuit was called in to try the case and he, after judgment and appeal therefrom, extended the time for filing bill of exceptions and before the time expired his term ended, his subsequent signing of the bill of exceptions was not the proper authentication of it. He was not a special judge within the meaning of sections 2595 and 2596, Revised Statutes 1899, and his authority over the case terminated with the tenure of his office..</p>

<p>1. ADMINISTRATION: Non-Resident Intestate: Insignificant Assets. Where a non-resident died in this State leaving trunks, a valise and contents of unknown value, there being no widow or minor children, an administrator of the estate of the deceased appointed by the probate court could not be removed on the ground that there were no assets or- that the assets .were of inconsiderable value.</p> <p>2. -: -- — : Assets Brought Into the State. Where a nonresident died in this State and a trustee representing the heirs after the death collected money belonging to the estate in a foreign State for the purpose of settling up the estate, brought it to this State and held it for more than a year without paying the debts of the deceased in this State, the probate court had authority to appoint an administrator to administer upon such assets.</p>

— Hon. Henry G. Riley, Judge. (1) The statute provides that “no person shall be entitled to a divorce from the bonds of matrimony who has not resided within the State one whole year next before the filing of the petition, unless the offense or injury complained of was committed in this State, or whilst one or both of the parties resided within the State.” The petition fails to make this statutory allegation, but instead only states that he has resided in Pemiscot, county,…

St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. In this State a married woman living with ber husband cannot recover for loss of earnings. Plummer v. Milan, 70 Mo. App. 602; Plummer v. Trost, 81 Mo. 428; Eoss v. Kansas City, 48 Mo. App. 446; Wallis v. West-port, 82 Mo.

Louis -City Circuit Court. — Hon. O’Neill Ryan, Judge. (1) The Insurance contract of a fraternal society which has not qualified under section 1410, Revised Statutes 1899, is governed hy the insurance laws of our State. Provisions in such insurance contracts which deny liability in case of suicide of the insured are void under section 7896, unless suicide was contemplated at application (which is out of this case).

<p>Appeal from Newton Circuit Court. — Hon. F. G. Johnston, Judge.</p> <p>"The defendant is charged as a wine-grower and a failure to prove him to-be such is fatal to a conviction. State v. Douglass, 48 Mo. App. 39; State v. Kurtz, 64 Mo. App. 123; State v. Greene, 26 Mo. App. 626; State v. Barnett, 111 Mo. App. 688-92.</p>

— Hon. William N. Evans, Judge. (1) There is no evidence to support the verdict in this case and the court should have given instruction numbered 1, offered by plaintiff, by way of peremptory instruction, directing the jury to return a verdict for the plaintiff. Bank v. Skeen, 101 Mo>. 683; Jennings v. Todd, 118 M'o. 296; Mayes v. Robinson, 93 Mo. 114.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. There is no equity in the cross-bill of interpleader, filed by the Grand Lodge. “In order to justify the sustentation as such, a bill of interpleader sbonld show that there is some doubt in point of fact, to which of the rival claimants the admitted debt or duty belongs.

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) A refusal to make paymant in accordance with the terms of the contract is a breach of the contract. St. Regis Oo. v. Lumber Co., 85 N. Y. S. 1034; Town v. Jepson, 95 N. Y. 742; Palmer v. Breen, 24 N. W. 322, 34 Minn. 39; Sage v. Purcell, 90 Ill. App. 16; Purcell v. Sage, 200 Ill. App. 342; Forge Co. v. Corbin, 182 Mass. 590; Smith y. Keith, etc., Co., 36 Mo. App. 567.

— Hon. W. E. Barton, Special Judge. Respondent insists that after the adjournment of the November Term, 1905, of the Texas Circuit Court, the powers of W. E. Barton, who had been elected special judge to hold the remainder of the term, ceased, and that he was without authority to settle and sign the bill of exceptions, and such bill is therefore a nullity.

— Hon. Henry G. Riley, Judge. (1) The court erred in admitting incompetent, irrelevant and immaterial testimony on behalf of the plaintiff. It was error, the allegations of injuries in plaintiff’s petition considered, for the court to permit the introduction off testimony concerning the alleged fact that plaintiff was suffering from consumption, or tuberculosis of the lungs.

— Hon. F. O. Johnston, Judge. (1) The protesting of a note is the taking of all the necessary steps to fix the liability of the drawer or indorser, upon the dishonor of commercial paper to which he is a party, or in other words, presentment, demand and notice of non-payment. Bank y. Lowe, 47 Mo. App. 151.

— Hon. Henry G. Riley, Judge. The instruction given by the court, of its own motion, attempting to define the offense of which, appellants were charged by information of having committed, was clearly erroneous. State v. Crowner, 56 Mo. 150; State v. Sekrit, 130 Mo. 401. The information in this case is sufficient. R. S. 1899, sec. 2175. This information is good at common law. State v. Appling, 25 Mo. 315; State v. Rose, 32 M'o. 560.

— Hon. W. N. Evans, Judge. Tlie judgment of the Howell Circuit Court disallowing as credits the two notes in question is binding on Sam P. Canterbury against whom that judgment was rendered, and is equally binding on his sureties. State ex rel. v. Donegan, 12 Mo.

<p>Appeal from Pemiscot Circuit Court. — Hon. Henry G. Riley, Judge.</p>

— Eon. James D. Barnett, Judge. (1) To entitle a broker to compensation, he must have been employed to negotiate the transaction in connection with which his services were rendered; and the employment must be prior to the service. Under plaintiff’s own evidence he is not entitled to recover.

— Eon. L. B. Woodside, Judge. (1) It is a complete defense to an action for malicious prosecution that defendant before commencing the prosecution, presented the matter to the county attorney all the facts, and then in good faith followed his advice, it completely rebuts the allegation of the want of probable cause and of itself shows probable cause. 1 Joyce on Damages, sec. 440. 441; Biglow on Torts, sec. 22; 3 Sutherland on Damages (2 Ed.), secs. 124, 708; Cooley on Torts…

— Hon. Chas. A. Killian, Judge. (1) The appellant in this case is aware that both the highest courts of this State hold that attorneys’ fees may be recovered in certain instances. Sterrett v. Railway, 108 Mo. App. 650.

— Eon. Eenry O. Riley, Judge. (1) This amendment changed plaintiff’s cause of action from a common law action of negligence to a suit under section 1111, Revised Statutes 1899. The amendment substituted a different cause of action from that stated in the original petition; this was done after the close of all the testimony in the case and is not permissible. The amendment was a departure. R. S. 1899, sec. 1111; Pruett v. Warren, 71 Mo.

— Hon. Henry O. Riley, Judge. . In a case of this nature it has been held that the court should instruct the jury, and not leave them to grope their way unaided through the testimony in order to determine what they should take into consideration in making up their verdict. Rains v. Railroad, 71 Mo. 169.

<p>Appeal from Pemiscot Circuit Court. — Hon. Henry O. Riley, Judge.</p>

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) The court corrected said error by its second instruction given at appellant’s request, and the verdict rendered in despite of said instruction was without a scintilla of evidence to support it and the two instructions are to be taken together. Montgomery v. Railroad, 181 Mo. 508.

— Hon. Joseph J. Williams, Judge. (1) All matters tried in this case were involved in the former case, and the judgment in the former case was conclusive as to all subsequent matters which might have been presented and determined therein. 24 Am. and Eng. Ency. of Law (2 Ed.)', p. 781, sec. 5; Laffoon v. Fretwell, 24 Mo. App. 258; Dickey v. Heim, 48 M'o. App. 118; Mason v. Summers, 24 Mo. App-. 174; Barkhoeffer v. Barkhoeffer, 93 Mo. App. 373; Hamilton v. McLean, 169 Mo. 51.

— Eon. L. B. Wood-side, Judge. The contract involved in the order for the car of lath, having been duly executed by plaintiff by a delivery of the goods to the carrier four days before the defendants attempted to countermand the order, the defendants have no right of rescission or to refuse the goods. 24 A. & E. Ency. Law, 612 ,et seq; Schraff v. Meyer, 133 Mo. 428; Garden Cul. Co. v. Railway, 64 Mo.

— Hon. F. G. Johnston, Judge. We presume it will be admitted, that if plaintiff was entitled to his exemption, and his not having the articles allowed by the statute he could claim and hold other property or the money in this case in lieu of the articles mentioned as being exempt. So on that question we will only cite in support thereof the following cases: Bank v. Borgfield,.93 Mo. App. 62; State ex rel. v. Wolf, 81 M'o. App. 586; Green v. Baxter, 91 Mo.

Louis City Circuit Court. — Son. Jesse A. McDonald, Judge. These allegations wholly, fail to charge defendant with any duty or obligation to plaintiff to repair the premises. The obligation to repair must arise from an express contract alleged and proved; otherwise there can be no liability even, as between the owner as lessor and the tenant; much the less so as between one who is not the owner and the tenant.

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

— Hon. Henry C. Riley, Judge. (1) The information charges or attempts to charge in the same count four separate and distinct offenses embraced in said section, supra, t'o-wit the first four above set out, is therefore bad. Defendants’ motion to quash on account of duplicity, and failure to inform defendants of the charge they are expected to defend should have been sustained. State v. Morrison, 64 Mo. App. 507; State v. Green, 24 Mo. App. 227; State v. Healey, 50 Mo.

— Eon. F. O. Johnston, Judge. Do not the very words of the statute (sec. 3011) show that it was the intention of the lawmakers to prohibit the open saloon and the sale of liquors therein during the progress of the election, so that the voters could exercise their right of suffrage free and clear of any influence that the saloon might bring to bear on them up until the polls were closed ?

— Eon. F. G. Johnston, Judge. Tbe verdict and judgment should have been in fav- or of the defendant upon the facts under the law. For even under the “damage” statute for willfully setting-out fire the law as declared by the circuit court forpaintiffs does not purport to be under any statute, or seek any remedy provided by statute; nor does the complaint state or the evidence prove any common law cause founded in negligence or unlawful design. Russell v. Reagan, 34 Mo.

— Hon. David H. Eby, Judge. The entry, while true, was also sufficient to show that an execution had issued and been returned by the constable molla bona. Appellant is aware of the strict and rigid construction given the statute in question by our courts. The certificate of the justice is that the return was, “No property found.”. This is synonymous with a return of nulla bona, and if so, then it is sufficient. Langford v. Pew, 146 Mo. 142; Reed v. Lowe, 163 Mo. 519.

— Ron. J. O. Sheppard, Judge. In tbe action of Foster v. Mercantile Co., to set aside the notes and mortgage pleaded in the answer was and is absolutely void and no defense whatever. The business arrangement and course of business between plaintiffs by which plaintiff bank became the owner of the notes is no defense and no concern of defendant. Guerney v. Moore, 131 Mo. 668; Howe y. Mittelberg, 96 Mo. App. 492; Landou v. Cottrell, 159 Mo., 315; Gay v. Orcutt, 169 Mo.-406.

— Hon. Henry C. Riley, Judge. (1) The interpleader must recover on the strength of his own title, if at all, and the burden of proof is on him to establish it'by competent, legal evidence, whether in the form of written instruments or oral testimony, and the court erred in refusing a demurrer to the evidence at end of interpleader’s case. Miller v. Ammon, 145 U. S. 421; Geittv. Mercantile Co., 74 Mo. App. 209; Brownell & Wright v. Barnard, 139 Mo. 142; Plano Mfg.

— Hon Henry O. Riley, Judge. (1) This is an action to recover damages for the trespass in cutting timber on the northwest quarter of section 13., township 19, range 11. It can be maintained only on one of two theories: (a) That plaintiffs were in the actual possession of the land when the trespass was committed; or (b) That the land was not in the actual possession of any one, but was in constructive possession of the plaintiffs as the legal owner.

— Hon. Henry G. Riley, Judge. Erections for private businesses upon the street are nuisance although sufficient space be left for the passage of vehicles and persons, and the public are entitled not only to a free passage along the highway, but a free passage along any portion of it not in actual use by some other traveler.

— Hon. Joseph J. Williams, Judge. (1) The defendant having in the former suit asked and obtained an instruction declaring that he had elected to occupy the premises and pay a rental of one bun-fired and fifty dollars per month, cannot now he permitted to deny that he so elected. Kennedy v. Bambrick, 20 Mo. App. 631; Welch & Harvey v. Daimeron, 47 Mo. App. 226; Boettger v. Eoehling, 74 Mo.

<p>Appeal from St. Louis County Circuit Court. — Eon. John W. McElhinney, Judge.</p> <p>(1) There is no splitting of cause of action. The judgment in the prior case of Leet v. Gratz is no bar to a recovery in this action. Leet v. Gratz, 92 Mo. App. 432; Priest v. Deaver, 22 Mo. App. 282; Menges v. Piano Company, 96 Mo. App. 611; Taylor v. Heitz, 87 Mo. 665; 2 Black on Judgments, sec. 734; 1 Sutherland on Damages, 228. (2) The measure of plaintiff’s damages is the sum paid to procure the interests of Ed and Catherine Gannon, together with his reasonable expenses and attorney’s fee. Hazlett v. Woodruff, 150 Mo. 534; Coleman v. Clark, 80 Mo. App. 339; Long v. Weller, 84 Mo. App. 104.</p> <p>(a) The plaintiff is estopped to maintain the present action by reason of his acceptance of the amount of the judgment rendered against defendant in the former suit of Leet v. Gratz, 92 Mo. App. 422. An entire claim or demand arising out of a single transaction, whether in the nature of a contract or tort, cannot be divided into separate and distinct claims and the same form of action brought for each or two suits maintained thereon without defendant’s consent. This is the law touching'the splitting of demands. Morrison v. Donato, 76 Mo. App. 643; Wheeler v. Tracey, 141 Mo. 252; Hill v. Chowning, 93 Mo. App. 620. (b) A judgment as to a part of an entire demand is a bar to an action on the balance. Laine v. Francis, 15 Mo. App. 107. (c) The distinction between entire demands and those which are several is that the former arise out of one and the same act, and the latter out of different acts. Grocer Co. v. Taggart, 60 Mo. App. 389. (d) When the judgment in the ejectment suit was entered and become final, the right of Leet to sue on both the covenants of seizin and warranty was complete. Rawle on Covenants, p. 149; Dickson v. Desire, 23 Mo. 161; Lawles v. Collier, 19 Mo. 483.</p> <p>Statement. — This is an action of covenant. We copy from the record the finding of facts and conclusions of law pronounced thereon by the trial court, from which a thorough understanding of the case in hand may be had.</p> <p>“On the third day of October, 1890, the defendant, in consideration of the sum of eight hundred and twenty-five dollars (825) to him paid, conveyed, by general warranty deed, to Alice A. Harris, the real estate described in plaintiff’s petition. By said deed, the defendant covenanted with the said Alice A. Harris, her heirs and assigns, that he was seized of an indefeasible estate in fee simple in the premises by said deed conveyed and convenanted to warrant and defend the title of the said premises unto said Alice A. Harris, her assigns and heirs forever, against the lawful claims and demands of all persons whomever; and the said Alice A. Harris, by her deed, dated on the 13th day of February, 1891, did grant, bargain and sell and convey the said premises to the plaintiff.</p> <p>“The devisees of one Michael J. Gannon, Sr., on the 22nd day of August, 1899, commenced suit in ejectment against the plaintiff in the circuit court of St. Louis county, Missouri, returnable to the September term thereof, 1899, said cause being entitled Ed. Gannon et al., v. F. W. Leet, to recover the possession of said premises and damages, and thereupon, on the 30th day of August, 1899, the plaintiff duly notified said defendant in writing of the commencement of said suit and demanded and required the said defendant to warrant and defend the title by him conveyed; that said defendant failed and neglected to defend said suit and the plaintiff defended same, and the court adjudged upon the trial thereof that the said defendant, at the date of his deed to the said Alice A. Harris, was not seized of an indefeasible estate in fee simple in said land and that the said devisees of Michael J. Gannon, Sr., plaintiff in said ejectment suit, had title in fee simple thereto and were entitled to possession thereof, and in said ejectment suit a judgment was rendered against the plaintiff for the possession of all of said premises and for one cent damages for unlawfully withholding the same from the plaintiffs in said action of ejectment and devisees of said Michael J. Gannon, Sr.</p> <p>“Thereafter and on the 31st day of August, 1900, to prevent being dispossessed and ejected from the said premises under and by virtue of said judgment, and from being deprived of the possession thereof, plaintiff purchased all the right, title and interest of Lillie Gannon, Grace Allen, formerly Grace Gannon, John Allen, her husband, Eugenia Peterson, formerly Eugenia Gannon, and Gustav Peterson, her husband, in and to said premises, they being part of the plaintiffs in said action of ejectment, and devisees of said Michael J. Gannon, Sr. For their interest in said property, plaintiff paid to them the sum of two hundred and twenty dollars ($220) and thereupon they conveyed to plaintiff, by proper deeds of conveyance, all their right, title and interest in and to said premises.</p> <p>“Thereafter and on the 21st day of December, 1900, plaintiff commenced action in the circuit court of St. Louis county, Missouri, returnable to the January term thereof, 1901, against the defendant Anderson Gratz, being an action for the breach of said covenants of seizin and warranty, to recover from him, as damages therefor, the said sum of two hundred and twenty dollars ($220), paid the said plaintiff in said ejectment suit for their interests in said premises and for the.expenses and attorneys’ fees paid by plaintiff in defending said action of ejectment. In tbe petition of said cause, it is alleged that tbe defendant, Anderson Gratz, at the date of the execution and delivery of his said deed to Alice A. Harris, was not seized of an indefeasible estate in fee simple in said premises in said deed described, but that on the contrary at said time, the devisees of said Michael J. Gannon, Sr., were seized in fee of said premises and that the said devisees of said Michael J. Gannon, Sr., on the 22nd day of August, 1899 commenced a suit in ejectment against this plaintiff in the circuit court of St. Louis county, Missouri, to the September term thereof, 1899, said cause being entitled Ed Gannon et al. v. Prank W. Leet, and that on the 30th day of August, 1899, this plaintiff duly notified said defendant in writing of the commencement of said suit and demanded and required said defendant to warrant and defend the title by him conveyed and that said defendant failed and neglected to defend said suit and this plaintiff did make defense thereto and that the court adjudged upon the trial thereof that the said defendant at the date of his deed to the said Alice A. Harris had no title to said land and that the said devisees of Michael J. Gannon, Sr., and plaintiffs in said action of ejectment, had title in fee simple thereto and that in said ejectment suit, judgment was rendered against plaintiff for the possession of all said, lands and for one cent damages for unlawfully withholding the same from the devisees of said Michael J. Gannon, Sr.</p> <p>“In due course the defendant, Anderson Gratz, was duly summoned to answer to the petition of the plaintiff in said action so commenced by him as aforesaid, and in due time filed in said court his answer thereto, whereby he denied all the matters and facts in said petition stated. Upon the trial of said issues so joined before the circuit court of St. Louis county, Missouri, the matters and facts in said petition alleged were by the court adjudged to be true as in said petition of plaintiff in said action alleged, and it was adjudged by said court, upon trial of said action, that tbe said plaintiffs in tbe said action of ejectment were tbe owners in fee simple of tbe said premises in plaintiff’s petition described, and that tbe defendant bad not an indefeasible estate in fee simple in tbe same at tbe date of bis deed to tbe said Alice A. Harris; that tbis plaintiff bad duly notified, in writing, tbe said defendant of tbe commencement of said action in ejectment as stated and demanded and required bim to defend tbe same, and that tbe defendant neglected to defend tbe same and that tbis plaintiff did defend said action of ejectment. It was further adjudged in said action that said defendant, by reason of the premises last aforesaid was estopped and precluded from denying that tbe title of tbe plaintiffs in said action of ejectment was tbe superior and paramount title to said premises, but was held and conclusively bound by all tbe matters and facts adjudged in said action of ejectment. ' - '</p> <p>“From said judgment so rendered, tbe said defendant prosecuted an appeal to tbe St. Louis Court of Appeals, where after a full bearing of all tbe matters and facts in said action involved, tbe judgment of tbe circuit court of tbe county of St. Louis, in said action was in all things affirmed.</p> <p>“Subsequent to tbe commencement of said action against tbe defendant, and subsequent to tbe final judgment therein and its affirmance by tbe St. Louis Court of Appeals, plaintiff purchased from Ed Gannon and Catherine Gannon, other plaintiffs in said action of ejectment, all their right, title and interests in the said premises in plaintiff’s petition described; that is to say, from Ed Gannon an undivided one-sixth (1-6) interest in said premises and from Catherine Gannon an undivided one-tenth (1-10) interest therein, and paid to them therefor tbe sum of one hundred and sixty dollars ($160), that is to say, to Ed Gannon one hundred dollars ($100) and to Catherine Gannon sixty dollars ($60) which price the court finds to be a reasonable price for their interests; and thereupon they conveyed to plaintiff all their right, title and interest as aforesaid in and to said premises by proper deeds of conveyance.</p> <p>“Subsequent to all said proceedings in the said prior case of Leet v. Gratz, and in acquiring the interest of the said Ed Gannon and Catherine Gannon as aforesaid in said property, and in perfecting his title thereto, the plaintiff was compelled to expend and did expend for various necessary expenses and reasonable attorney’s fees in corresponding and negotiating with said Ed and Catherine Gannon, and in preparing and procuring deeds from them to plaintiff, the sum of one hundred and sixty-four dollars ($164) and which said expenses and attorney’s fee the court finds to be reasonable.</p> <p>“And the court further finds that this cause of action is upon the same covenants of seizin and warranty and for the same breaches of said covenants as said former action in favor of the plaintiff against the defendant, commenced on the 21st day of December, 1900, in which said plaintiff recovered judgment for damages as aforesaid; that said damages so recovered were all the damages that plaintiff had sustained by the said breaches of covenants at the time of said judgment for damages; and that the above-mentioned expenses of $160 and $164 were additional damages sustained by plaintiff by reason of the same breaches of covenants, after the time of sand judgment for damages and after the said affirmance of the same by the St. Louis Court of Appeals.</p> <p>“Upon the foregoing facts; the court further finds, as matter and conclusion of law, as follows:</p> <p>“(1) It is conclusively adjudged and determined in and by said former suit on said covenants, that said, covenants'had been broken by defendant, and that the plaintiff was entitled to recover his damages sustained by reason of the breaches thereof.</p> <p>“(2) Plaintiff was'entitled to maintain but one suit for damages upon said breaches of covenants and ought not to be permitted, upon purchases from time to time of the interests of the several plaintiffs who recover in said ejectment suit, to institute and maintain separate suits for damages for the same breaches of said covenants. Since he elected to purchase the titles of plaintiffs so recovering, to prevent eviction by legal process, he should have completed all such purchases which he desired to make, before suing for the damages incurred thereby.</p> <p>“(3) And therefore, the said recovery of damages in said former suit is a bar to plaintiff’s recovery in this suit; and the finding and judgment herein should be for the defendant.”</p>

— Eon, Eenry G. Riley, Judge. (1) The affidavit for appeal substantially complied with all the requirements of the statute. The defendants, pending the State’s motion to dismiss the appeal, tendered an unobjectionable affidavit which should have been allowed, and the court erred in dismissing defendant’s appeal. State v. Thompson, 81 Mo. 163; State 'v. Cook, 31 Mo. App. 57; De Soto v. M’erciel, 53 Mo. App. 61.

- — Eon. -Jamies L. Fort, Judge. The law of this State is well settled that a real estate broker to be entitled to his commission, must make a sale of the land in accordance with the conditions imposed by the owner, at the time he undertakes to sell the land, in other words, a real estate broker must not only produce a responsible, isolyent purchaser who is ready and willing to buy the land, but he must produce one who is ready and willing to buy for the price, and upon the…

— Hon. Henry C. Riley, Judge. (1) The instructions given on behalf of the plaintiff numbered 1 and 2, are erroneous, because they fail to define what constitutes a lawful fence. The suit is founded on the double damage statute, and was brought in the circuit court, and not before a justice of the peace. R. S. 1899, sec. 1105; Barnet v. Railroad, 68 Mo. 56. The statute defines what a lawful fence shall be. R. S. 1899, sec. 3295.

<p>1. APPELLATE PRACTICE: Errors in Record Proper: Motion for New Trial. Tibe ruling of the trial court sustaining a demurrer is part of the record proper and may be reviewed by the appellate court though no motion for new trial or in arrest of judgment was filed in the circuit court.</p> <p>2. STATUTE OF FRAUDS: Pleading: Presumption. Where a petition declares upon a contract without disclosing whether it is in writing, if it is a contract which is required by the Statute of Frauds to be in writing, the law will presume it was . written.</p> <p>3. -: Performance. A contract which the Statute of Frauds requires to be in writing, when wholly performed on one side, is taken out of the operation of the Statute and binding upon the parties. Where a railroad company made a parol contract with the owner of land that in consideration of the conveyance of a strip of ground one hundred feet wide by the owner of the land to the railroad company, the latter would locate and build a railroad along the same and perform other conditions, and where the railroad company took possession of the land and performed all of the conditions, the contract was taken out of the operation of the Statute of Frauds and was binding upon the owner of the land.</p> <p>4. -: Contracts Concerning Land: Description. A contract whereby the owner of land agreed to convey to a railroad company for a right of way a strip of land described as being 100 feet wide to be thereafter located through the owner's land, the description was sufficiently definite to make the contract binding.</p> <p>c. CONTRACTS: Breach of Contract to Convey: Measure of Damages. Where the owner of land agreed to convey to a railroad company a strip of land through his premises for the purpose of a right of way for a railroad to be built thereon, in consideration of the performance of certain conditions by the railroad company, but refused to carry out his contract, in an action by the railroad company against the land owner for damages on account of failure to comply with the contract the expenses incurred by the railroad company in condemning the land for a right of way, was not a proper element of damage; the measure of damages would he the value of the land which the defendant promised to convey at the time the railroad had completed the performance of its contract.</p> <p>6. -: -: Estoppel. In an action by a railroad company against the owner of land for a breach of a contract to convey a right of way through the owner’s premises, an allegation in the petition that the plaintiff was obliged to condemn the land because the parties failed to agree on a proper compensation, did not estop the railroad company from showing by the contract sued upon, that there was an agreement as to the compensation for the land to be conveyed; the failure to agree on the value of the easement acquired by condemnation did not necessarily involve a failure to agree on the value of the fee as contemplated in the contract.</p> <p>7. -: -: -.. (Bland, P. J., dissenting.) The allegation in the petition that the parties failed to agree on the compensation and therefore the property was condemned, es-tops the railroad company from showing that there was an agreement upon which the action was brought.</p>

— Hon. Henry G. Riley, Judge. (1) Under the facts in this cáse the railroad company was not authorized to fence the road. Dowe v. Railroad, 116 Mo. App. 555; Giltz v. Railroad, 65 Mo. App. 445; Roberts v. Railroad, 43 Mo. App. 287; Henderson v. Railroad, 36 M'o. App. 113; Luclde v. Railroad, 76 Mo. 639; State v. Walters, 69 Mo. 463.

— Hon. Jesse G. Sheppard, Judge. (1) The testimony of the witness Charles Baldwin, to the effect that the general condition of the sidewalk in question “has never been good,” and which was admitted over objection of counsel for the defendant, was too general in character, and should have been excluded by the court on the ground that it was too general and the expression of the opinion of the witness. Spears v. Mt. Ayr, 66 Iowa 721; Eubanks v. Edina, 88 Mo. 650.

— Hon. Henry C. Riley, Judge. (1) This suit was brought in the circuit court,, and not before a justice of the peace, under the. Double Damage Statute, which is a penal statute. R. S. 1899, sec. 1105; Barnett v. Railroad, 68 Mo. 56. The statute defines what a lawful fence shall be. R. S. 1899, sec. 3295.

Original Proceedings by Habeas Corpus. There is naught in any of the cases cited in respondent’s brief that reflects upon the position announced by the court that the welfare of,the child is a paramount question and that in the absence of any cause to contrary the parent is entitled to the possession of his infant child. Richards v. Collins, 45 N.J. 283; Campbell y. Campbell; 76 Mo. App; 396; West v. West, 96 Mo. App. 683.

<p>APPEALS:\ Premature Appeal: Motion to Retax Costs. No appeal will lie from the ruling of the trial court upon a motion to retax costs while the cause in which the motion is filed is still pending in the circuit court.</p>

— Mon. Menry G. Riley, Judge. (1) The agreement, or lease, in this case relates to property in the town of Oran and, as it was not reduced to Avriting, is a tenancy from month to month. R. S. 1899, sec. 4110; Combs y. Transfer Co., 58 Mo. App. 112; Tool Co. v. Spring Co., 93 Mo. App. 530.

-Appeal from Butler Circuit Court. — Hon. J. G. Sheppard, Judge. (1) Samuel Gardner, being the husband of plaintiff, was not a competent witness in the case. Bayse v. Railway, 65 Mo.- App. 476; Williams v. Williams, 67 Mo. 661; Wheeler & Wilson v. Tinsley, 75 Mo. 458; Scrutchfield v. Sa-uter, 119 Mo. 625; Coxner v. Loehr, 117 Mo. App. 698; Layson v. Cooper, 174 Mo. 211; Orchard v. Collier, 171 Mo. 390; Bank v. Wright, 104 Mo. App. 242; Flannery v. Railroad, 44 Mo.

— Hon. F. O. Johnston, Judge. (1) Tbe ruling of tbe court on motion of L. L. L. Allen and J. Forsythe, requesting that they be permitted to enter their voluntary appearance and be made parties defendant, was properly sustained. State ex rel. v. Hudson, 86 Mo. App. 512; Creen v. Conrad, 114 Mo. 665. (2) Instruction numbered 1 given on behalf of relator is erroneous in that: (a) The damages are not limited to securing a dissolution of the attachment.

— Hon. Henry O. Riley, Judge. Delivery of tbe policy to insured and payment of premium is a condition precedent to tbe taking effect of tbe contract of insurance. Tbe policy having never been delivered to tbe deceased, and tbe premium never paid there was no contract. Cravens v. Insurance Co., 148 Mo. 599; Kilcullen v. Ins. Co.,. 108 Mo. App. 61.

— Eon. Eenry O. Riley, Judge. It being conceded by both respondent and appellant that the chattel mortgage and note was the consummation of the deal between the parties, and there being no ambiguity or uncertainty in the terms of either, then oral testimony was incompetent to vary its terms. The court, over repeated objections of appellant, permitted' such proof to be detailed to the jury. Indeed, the petition is drawn upon the theory of an antecedent agreement.

<p>JURISDICTION: Supreme Court: Constitutional Question. In an«. motion to quash an execution, certain clauses of the Constitu-. tion were set forth as entitling the appellant to have the motion sustained. In the overruling of the motion, the constitutional questions were decided against appellant, and this gave the Supreme Court jurisdiction of the appeal.</p>

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) No yiolation of section 6433, Eevised Statutes 1899, was shown and the court erred in submitting such to the jury. Strode y. Box Co., 124 Mo. App. 511; Muir v. Milligan, 19 Sc. Sess. Cas. 18; Bobb y. Bullock, Id. 974; Hindle y. Birtwistle (1897), 1 Q. B. 193; Cobb y. Welcher, 75 Hun (N. Y.) 283; Glassheim y. Economical Pr. Co., 34 N. Y. Supp. 69; Glenn Falls Co: v. Ins.

<p>APPELLATE PRACTICE: Filing Motion for New Trial and Bill of Exceptions: Record Proper. The filing of a motion for new trial and of the bill of exceptions must appear by the record proper; a recital of such filings in the bill of exceptions is not sufficient.</p>

<p>Appeal from Greene Circuit Court. — Hon. James J. Gideon, Judge.</p>

— Hon. F. O. Johnston, Judge. A holder of negotiable papers as collateral for a pre-existing debt and having given no consideration therefor and not being an innocent purchaser for value before maturity, holds it liable to equities existing between the original parties. Wine Co. v. Rinehart, 42 Mo. App. 171.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. To entitle plaintiff to read in evidence the testimony of Dr. Waldo Briggs, as preserved in the bill of exceptions of tbe former-trial, it was necessary for bim to show by competent and legal evidence, first, that tbe witness bad been properly subpoenaed, and second, that witness was engaged in bis professional duties at tbe time of tbe trial. R. S. 1899, secs. 2904, 3149.

Louis County Circuit Court. — Hon. Jno. W. McElhmney, Judge. Tbe court erred in refusing to give the peremptory instruction offered by appellant at tbe close of all tbe evidence, (a) Because section 6483, requiring beltings to be guarded, bas no application to a case of this kind where tbe injury results to an employee from tbe breaking of a belt. Neeman v. Smith, 50 Mo. 528; Fusz v. Spaunhorst, 67 Mo. 267; State v. Hayes, 81 Mo. 584; Potter v. Douglas.

— Hon. 1H. R. McKee, Judge. The purchaser must have actual knowledge of the purpose of the debtor to defraud creditors. It is not sufficient that he had knowledge of such facts as would put an ordinary man on inquiry, gammons v. O’Neil, 60 Mo. App. 530. Hence the instruction offered and given by the court that if they had sufficient knowledge to put an ordinary man on inquiry was reversible error, as held by the court in White v. Million, 102 Mo.

Louis City Circuit Court. — Eon. Roibt. M. Foster, Judge. (1) The circuit court, under its supervisory power, cannot compel a justice of the peace to alter his record. Dixon v. Judge, 4 Mo. *p. 286; Garnet v. Stacy, 17 M'o. 601; State ex rel. v. Walker, 85 Mo. App. 247; State ex rel. v. Klein, 140 Mo. 502; Lebetter v. Osborne, 66 N. Car. 879.

Henry O. Riley, Judge. (1) Instruction numbered 1 given on behalf of the plaintiff authorized the jury to find for the plaintiff if they were satisfied from the evidence that the bell was not rung and the whistle sounded at least eighty rods before reaching the crossing, and it neglected to cause said whistle to be sounded at intervals until the train reached the crossing. This instruction is wrong. A compliance with either duty was sufficient.

<p>Appeal from St. Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge.</p> <p>(1) The defendant could not be compelled to assume tbe responsibilities of a common carrier, without prepayment of freight charges, or an agreement waiving the same, and the court therefore erred in refusing defendant’s second instruction. Railroad v. Steamship Co., 86 Fed. 407. (2) The bill of lading provided that the amount of any loss or damage should be computed at the value or cost at the place of shipment. The only proof of value was as to what the corn was worth at Wichita Falls, Texas, the destination. There was, therefore, no proper evidence on which to submit the case— and the court erred in sending it to the jury. Capíes v. Railroad, 17 Mo>. App. 14; Rogan v. Railroad, 51 Mo. App. 672. (3) The plaintiff proved that the title to the corn sued for had passed to E. G. Rail, of Wichita Falls, and there was no evidence that it had ever been revested in plaintiff, and for that reason there could be no recovery in this case. Ober v. Railroad, 13 Mo.' App. 86; Com. Co. v. Railroad, 87 Mo. App. 336; Dymock v. Railroad, 54 Mo. App. 400; Bank v. Railroad, 62 Mo. App. 538; Skilling v. Bollman, 73 Mo. 665. (4) The loss of the corn in question resulted from the flood— an act of God — on account of which the defendant was not liable. Grier v. Railroad, 108 Mo. App. 565; Brewing Assn. y. Talbot, 141 Mo. 674; M'offatt y. Railroad, 113 Mo. App. 544.</p> <p>(1) Tbe appellant’s responsibility is not affected by the fact that the freight on the car of cbm was not paid in advance, and, therefore, appellant’s second instruction was properly refused. Ray on Imposed Duties of Freight Carriers, sec. 126, p. 847; Railway v. Keith, 8 Ind. App. 57; 3 Wood’s Railway Law, sec. 428; Railway v. Morton, 61 Ind. 539; Railway v. Hollowell, 65 Ind. 188; Bastard v. Bastard, 2 Shaw 82; Barnes v. Marshall, 18 lb. 785; Pickford v. Railway, 8 M. & W. 372. (2) The respondent’s evidence showed the value or cost of the corn at the place of shipment and the finding of the jury was in accordance with such testimony. Mitchell v. Weir, 45 N. Y. Supp. 1085; The Arctic Bird, 119 Fed. 167, 175; 3 Suth., Damages, 247. (3) The respondent, as the consignor in the bill of lading, was the proper party to bring this suit. Atchison y. Railroad, 80 Mo. 213; Harvey y. Railroad, 74 Mo. 538; Blanchard v. Page, 8 Gray 281; Finn v. Railroad, 112 Mass. 524; Southern Express Co. v. Kraft, 40 Miss. —; Railroad y. Schwartz, — Ill. App. 490. (4) The loss of the respondent’s corn did not result from an act of God, but was occasioned by the acts of appellant and failure to use due diligence in caring for the car of corn. Woll y. Express Co., 43 M'o. 425; Davis y. Railroad, 89 Mo. 340; Lamont ;& Co. y. Railroad, 9 Heisk. 58; Greer y. Railroad, 108 Mo. 568; Prince & Co. v. Compress Co., 112 Mo. App. 49. (5) When the appellant received respondent’s corn, a rise in the river was threatened such as to make the loss of the com in transportation a probability, and it was for the appellant to determine whether or not the corn could be safely transported to Wichita Falls. Hutchinson on Carriers, sec. 186; Charleston, etc., S. B. Co. v. Boston, 1 Harper 262; Express Co. y. Jackson, 8 Pickle 326; Loomis v. Pearson, — Harp. 468; New Brunswick Co. y. Tiers, 64 M- Dec, 394, 411.</p> <p>Statement. — The suit is for the value of a carload of corn, which, while under contract of affreightment, was damaged and practically destroyed by means of the high water resulting from the overflow of the Mississippi river, June, 1903. The material facts are: plaintiff a dealer in and shipper of grain, having an order for a car of corn from a customer in Texas, delivered the laden car to the Wiggins Ferry Company for the purpose of delivering the same to the defendant railroad company on June 3, 1903, received from the ferry company a receipt therefor, and on the same date, June 3, at about one o’clock, p. m., the plaintiff delivered this receipt to the defendant’s proper agent at and in charge of its commercial office, Broadway and Chestnut streets, St. Louis, and contracted with the defendant, through said agent, for the shipment of the car, shipper’s order, consigning same to itself (the plaintiff) at Wichita Falls, Texas, with directions to notify E. G. Rail, he being the plaintiff’s customer for such corn, at which time defendant’s commercial agent, upon the surrender by plaintiff to him of the Wiggins Ferry Company’s receipt evidencing the car then in the ferry company’s custody, issued in duplicate two bills of lading therefor, the original of which was delivered to plaintiff and the copy retained by defendant’s said agent. The bill of lading then issued and delivered to plaintiff and under which ffhe car was shipped, is dated June 3, 1903, and covers fifty-six thousand pounds bulk corn then contained in this car marked M., K. & T. R. R., No. 11747, and provides for its carriage over defendant’s and connecting lines to Wichita Falls, Texas, at the rate of 22% cents per hundredweight. As said before, the shipment was made by the plaintiff to itself, it being both consignor and consignee, marked “Shipper’s order, notify E. G. Rail.” The bill of lading introduced in evidence bears the stamp of the defendant’s transit inspection bureau, June 3, 1903, and among other things, contains the following provisions. “It is understood as a part of the conditions under which said packages are received,, that neither this railway company, nor any other carrier shall be liable . . . for any loss or damage occasioned by riots, strikes, the acts of God, or the public enemy.” And provides that in event of loss or damage to the property (the corn) therein mentioned, “the amount of loss or damage shall be computed at the value or cost” of such corn “at the place and time of shipment.”</p> <p>The car of corn never reached the destination mentioned. On June 5, it was still in the defendant’s yards, immediately adjacent to the Mississippi river in North St. Louis, and Avas so damaged by the high waters of that date as to be practically destroyed. The principal defense interposed and relied upon to defeat plaintiff’s recovery, is that the damage resulted from the act of God, by the sudden and unexpected inundation of defendant’s yards, by reason of the extreme high water of June 5. It will be observed by reference to the clause of the bill of lading above quoted, that the defendant is not liable for loss or damage resulting from the act of God.</p> <p>The plaintiff having made a prima-facie case by the introduction of the bill of lading and oral testimony in support of the allegations of its petition, the defendant sought to bring itself within the exception in the bill of lading referred to, and in order to escape liability under this provision of its contract, showed first, that although the bill of lading was issued by it to plaintiff on June 3 at about one o’clock p. m., the car, in fact, was not placed in its yards by the Wiggins Ferry Company until 1:25 p. m. on the following day, June 4, and that when the car was thus actually placed in its charge there was no “card” accompanying the same, showing its .destination, nor did any shipping instructions accompany the car from the ferry company and in the absence of this card or shipping instructions, the car was 'placed on the holdover track by defendant’s yard men, awaiting the necessary billing and instructions, in the usual course, from its commercial office, and that such billing and instructions were not received by those in charge of ' the yard office until morning of June 5, on which date, at about eleven o’clock a. m., the yards became so completely inundated as to enforce a suspension of the work of removing the cars therefrom, and that for the reason no card or instructions accompanied the car on June 4, when received from the ferry company, and none were communicated from its commercial office to the yard office until the morning of June 5, it was impossible by the exercise of ordinary endeavor and diligence in that behalf, to remove the car from its perilous situation before the inundation became of such proportions as to render it wholly impossible.</p> <p>By Mr. Bowie, the officer in charge of the United States Weather Bureau at St. Louis, the defendant showed the high water which occasioned the loss to have been of an extraordinary character, so much as to, on June 10, exceed any stage of the river since the year 1844. Witness gave testimony with respect to the comparative statement of the several high-water stages for many years at St. Louis from the records at his office, from which testimony the following table is taken:</p> <p>“Flood of 1844, high water mark, 41.4 ft.</p> <p>Flood of 1857, high water mark, 37.1 ft.</p> <p>Flood of 1892, high water mark, 36. ft, ■</p> <p>Flood of 1903, high water mark, 38. ft.”</p> <p>His record also showed for. the several days, including the date of the shipment involved, just prior thereto and mediately thereafter, the stage of the water, as ascertained about 6:30 each morning and 6:30 each evening as follows:</p> <p>“May 31 ................. 25.6 ft.</p> <p>June 1....................27.8 ft.</p> <p>June 2 ................... 29.9 ft.</p> <p>June 3.....................31.2 ft.</p> <p>June 4.................... 32.8 ft.”</p> <p>On the morning of June 5, the high-water mark was 33.5 feet and the evening of the same day, 34.2 feet. It reached its highest stage of thirty-eight feet on June 10, after which it gradually receded. It was also shown by this witness that his office issued daily bulletins from May 29, each day, prior to and including the days involved in this controversy, predicting a continual rise in the river at this point, as above indicated, and that these bulletins were daily published in the morning and afternoon papers of the city of St. Louis for the information of the public. On June 2, the weather bureau predicted and published the Mississippi river to be above the danger line at all points in the St. Louis district and that it would rise rapidly. On June 3, the prediction was the rise would continue rapidly during the next forty-eight hours, with a stage of 32% feet by Thursday morning and thirty-four feet by Friday. Measures to protect property subject to damage from a thirty-five foot stage Saturday or Sunday were advised. On June 4, witness’ bulletin was to the following effect: “The rise will continue rapidly and 32% feet will be reached Friday morning, 34% feet Saturday morning and a stage of thirty-five feet is forecasted for Saturday night or Sunday. Measures to protect property from a thirty-six foot rise on Monday should be taken.”</p> <p>Defendant proved that its main line of railroad runs along an embankment immediately on the west bank of the Mississippi river in north St. Louis, and its yards for the handling of its freight cars and loads is immediately west of its main line at this point; that its said yards are about three feet lower than its main line and that it has a line of railroad or trackage also constructed on an embankment immediately on the west side of its yards. The two levees or embankments, the one on the east side, on Avhich its main line is situate, and the one on the west mentioned, operate as a levee or protection against the rising river and the overflow therefrom and therefore render its yards, although on lower ground, secure from all ordinary rises of the river, and had since their construction in 1892, operated a safe and reliable protection from the thirty-six foot stage of water of that year, which was the highest stage knoAvn since 1857, and it afforded complete protection at all times thereafter, up to June 5, 1903, the date on which plaintiff’s corn was lost. Upon this showing, it maintains that it had exercised reasonable diligence with respect to this and other cars then in .its yards and that the exceeding high stage of water inundating its yards on June 5, so far exceeded all recent human experience as to extend quite beyond the rule requiring the defendant to exercise due diligence to the end of preserving the car from loss, within the range of reasonable anticipation, and that the exceeding high stage of water at that date and the consequent overflow of its yards from which the plaintiff’s loss occurred, was therefore solely an act of God, without the defendant’s negligence in any manner, contributing thereto, inasmuch as an ordinarily prudent person would not anticipate this extraordinary stage of water. In furtherance of the theory that it was in noAvise negligent, contributing to the loss, it introduced much evidence tending to show the usual course of procedure for handling freight and placing in an outgoing train, cars situate as this one was (not accompanied upon its delivery with a card or other shipping instructions). The result of this evidence is that in case a car is not accompanied with a card or other shipping instructions, then it is held on the hold-over track, until, through the usual course, a shipping bill, as issued, by the commercial office, is conveyed by messenger from that office and passes through an intermediate office, Avhere certain records are made, and finally, reached the yard men, in the usual course of from four to six hours after the bill of lading is issued, if issued early in the day. The defendant’s clerk gave evidence to the effect that a bill of lading, issued as this one was, about one o’clock p. m. would in the usual course, reach his intermediate office about four o’clock in the afternoon, where certain records were made of the transaction, and it would then pass to the hands of the yard men the following morning. This evidence seems to have been introduced upon the theory that the bill of lading was issued about one o’clock June 4, instead of June 3, and that in the usual course, by the exercise of the most urgent endeavor, it taking its place with other shipments, would not have reached those in immediate charge of the car in the yard, until the morning of the fifth, too late to have enabled them to remove the car, taking its turn wdth several hundred others in the yard, prior to the complete inundation which occurred about eleven o’clock a. m. of that same day, which operated to dampen the fires in the locomotives so as to suspend operations. Parenthetically, we will say here that this theory is not sustained by the proof, for all the evidence goes to show, and it stands as an established fact in the case that the bill of lading was issued about one o’clock p. m., on June 3, as appears by its date, also by the stamp of the inspection bureau thereon, and is also verified by the testimony of Mr. Weidmer, president of plaintiff warehouse company, the only witness testifying to the transaction, who affirms that he had verified the date, as appears by the question of the learned counsel for defendant and the witness’ unqualified and pointed answer thereto, as folloAvs: “Q. Isn’t it very possible yon would take it (the bill of lading) around there and leave ft on the third and get it on the fourth? A. No,’ sir; I looked it up. I drew our draft on the third. Q. “You might draw your draft on the third —. A. No, I looked it up.” Speaking of the bill of lading, therefore, in view of this established and uncontroverted fact that the bill of lading was issued on the third, in its usual course, according to defendant’s evidence, it would be in the hands of the yard men on the morning of the fourth of June, a few hours prior to the actual delivery of the car to it in the yards by the ferry company at 1:25 p. m. that day, and defendant’s general yardmaster testified that eight or ten hours was a reasonable and the usual time required in the ordinary course, for transporting a car from the yards in an outgoing train after the billings were received by the yard men.</p> <p>To the end that the defendant’s negligence contributed to the loss of the car of corn, plaintiff proved in rebuttal by one Smythe that he was assistant general yardmaster on the date in question in defendant’s yards; that the defendant had been employing five locomotives and crews all of the time in the yard and one additional locomotive a portion of each day and night, immediately prior thereto, but by reason of the impeded business resulting from the floods and washouts, had reduced the force on the day in question to three locomotives and crews in the yard proper, placing another locomotive at a different point, denominated Prospect Hill, and another at Mound street; that it then had available for work in its yards, ten locomotives, only three of which were employed on the day in question; that at seven o’clock in the morning of June 5, the water from the river was seeping over the embankment and under the rails of the main line for about two miles, and running-down what was termed “a lead” into the yards, so that it was at places ankle deep; that witness suggested to Mr. Ustick, general superintendent, and Mr. Swanson, genera] yardmaster, both of whom were then present and directing operations, the possible overflow of the yards, from the source mentioned, and that additional locomotives and crews should be furnished to aid in the removal of the several hundred cars, then imperiled. The witness said: “I told Mr. Swanson and M'r. Ustick on the morning of the fifth; I told them we had better put on- more power and try to get those cars out of the yard. . . . They said they thought they would be able to save it.” No additional locomotives and crews were furnished. He further testified that in the morning, the general superintendent said he did not want the wheels of the néw cars to get rusty and therefore devoted a portion of the time to removing about one hundred and fifty empty cars to Branch street, which time would otherwise have been devoted to removing the loaded cars; that the water which finally inundated the yards about eleven o’clock and prevented the removal of the remaining loaded cars, of which the plaintiff’s car was one, came from the west side of the yard and was admitted by the act of defendant’s section men, under the direction of the general superintendent, cutting the embankment supporting the track on the west side of the yard so as to remove the pressure of water upon, and the probable consequent dislodgment of the main line, and that the cars could have been removed had this embankment not been cut. On this matter the defendant’s learned counsel asked, and the witness gave the following testimony: “Q. Do you mean to have this jury understand, that if they had not cut this track there would not have been any water in there? A. No, sir; I do not say that, but I say that we would have had a chance to have removed these cars before they were swamped in this hole.” In surrebuttal the defendant’s general superintendent denied his order to remove the new empty cars, but admitted the- removal of many of them saying they were so located in the distribution oyer the yard as to render their removal necessary in order to reach the loaded cars. He said as all of the cars had been removed from the west yard, which was somewhat lower than the east yard, the yards being adjacent, however, under the direction of the company’s civil engineer, he caused the embankment on the west of the yard to be cut about 10:30, June 5, for the purpose of removing the pressure of water from the main line, and that the work of removing the cars was suspended about eleven o’clock because the water had reached such a stage in both yards as to destroy the locomotive fires and render it impossible to further proceed.</p> <p>Upon this state of facts, the case was well instructed to the effect that if the plaintiff’s loss occurred solely from an act of God, without defendant’s negligence contributing thereto, then the finding should be for the defendant; and on the other hand, that if the defendant’s negligence contributed or was the prokimate cause of the loss, then the finding should be for the plaintiff. The jury found the issues for the plaintiff. Defendant appeals. Other facts relevant only to the questions presented will be noticed in the opinion in connection therewith.</p>

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. The article delivered is not the sound piano sold by Mrs. Sampson, plaintiff’s agent. There can be no question of her agency; plaintiff’s testimony shows that she was her agent, all the testimony shows it — her respresentation bound plaintiff. If she acted beyond her authority in representing the piano sound, plaintiff, or some one for her, should have denied her agency and authority.

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

Louis City Circuit Court. — Son. Walter B. Douglas, Judge. (1) The court erred in not sustaining the defendant’s demurrer to the evidence. Champagne v. Harney, 189 Mo. 729; Payne v. Railway, 136 Mo. 575; Powell v. Railway, 76 Mo. 85. (2) The court erred in refusing to permit the defendant to shoAV by the witness Houck that the deposition of the plaintiff had been altered. Mark v. Hart, 166 Mo. 523.

Louis City Circuit Court. — Eon. Wm. M. Kinsey, Judge. (1) There is nothing in the so-called abstract of the record, or in anything on file in this court except recitals in the bill of exceptions itself, to show that any bill of exceptions was ever filed, or any motion for new trial, therefore, this court can not consider any matter of exception to the action of the court below. Bradbury v. Kerns, 115 Mo. App. 99; Bailey v. McWilliams, 111 Mo. App. 35; Allen y. Aylor, 111 Mo.

— Hon. Henry C. Biley, Judge. Both suits were for unliquidated damages, and the statute, authorizes the consolidation of suits hy the court, of its own motion, where they are “founded alone upon liquidated demands,” and in no other case. R. S. 1899, sec. 749; Anderson v. Gaines, 156 Mo. 668.

— Hon. Henry O. Riley, Judge. (1) The voucher introduced in evidence by the plaintiff himself was a complete settlement of all claims from damage to land and crops up to August 27, 1904, its date. And the court erred in not so construing the same. It was an accord and satisfaction of all claims against the defendant on account of the matters therein set forth.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The appellant should not he heard to say that the evidence does not disclose that it was the owner and operator of the car which injured plaintiff, (a) In a case like this inferential proof of ownership of the tracks, however slight, is all that is required. Kerr v. Railroad, 113 Mo. App. 1; Geiser v. Railroad, 61 Mo. App. 462; Welsh v. Railroad, 102 Mo. 582; Johnson v. Railroad, 104 Mo. App. 588.

Louis City Circuit Court. — Eon. Daniel G. Taylor, Judge. (1) Where a contract provides for the sale of an article, which, is to he satisfactory to the vendee, it must be satisfactory to him. and not merely sncb an article as ought to be satisfactory or as would be satisfactory to other persons. McCormick y. Finch, 100 Mo. App. 641, distinguishing Pope y. Best, 14 Mo. App. 502; Thompson y. Dickerson, 68 Mo.

<p>1. JUDGMENTS: Double Damages: Remittitur. A plaintiff was given a verdict for $25 in an action against a railroad company for killing stock and tke court rendered judgment for double the amount as provided by statute. The plaintiff then remitted $10 from the damages “assessed by the court and jury;” This meant a remittitur from the total judgment of $50, not from the verdict of $25, and the court properly set aside the judgment and entered another for $40.</p> <p>2. RAILROADS: Killing Stock: Instruction. In an action against a railroad company for. killing plaintiff’s cow, an instruction required the jury to find that the cow entered upon the track by feason of insufficient cattle-guards; the undisputed evidence showed the cow went on the track at a crossing and the instruction further declared that the plaintiff could not recover if the cow was killed at the crossing, this was a sufficient requirement that the jury should find the cow escaped onto the right of way by reason of defective cattle-guards and was there killed, in order that plaintiff might recover.</p>

— Hon. Henry O. Riley, Judge. Trover will not lie against one who came into the possession of the property lawfully, until after demand and refusal. Yeager v. Wallace, 57 Pa. 368; Carey v. Bright, 58 Pa. 83; Waring v. Railroad, 76 Pa. 491; Taylor v.' Hanlon, 103 Pa. 504; Boobier v. Boobier, 39 Me. 406; Kelsey v. Griswold, 6 Barb. 436; Hill on Torts, 582; 4 Ency. of Law, (1 Ed.), p. 115; Hays v. Ins. Co., 1 L. R. A. 305.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) If the defendant Dickman, as sheriff, levied upon and sold relator’s property without apprising him of his exemption rights, he could have had the levy and sale set aside by timely application to the court. Stinson v. Call, 163 Mo. 323.

Louis City Circuit Court. — Eon. O’Neill Ryan, Judge. (1) Tlie court erred in refusing to give defendant’s instruction, which was in the nature of a demurrer to the pleadings and evidence, (a) Plaintiff’s statement of his case failed to state facts sufficient to constitute a cause of action. Pat., Code PL, sec. 421; Gurley v. Railroad, 93 Mo. 445; Jacquin v. Railroad, 57 Mo.

— Hon. Jas. T. Ne-ville, Judge. (1) A covenantee may recover for a breach, of a covenant of warranty without showing actual eviction; it is sufficient if he shows an assertion of a paramount title to which he has yielded either by surrendering possession or extinguishing the paramount title. Lambert v. Estes, 99 Mr. 608; Eagan v. Martin, 71 Mo. App. 65, 81 Mo. App. 676; Leet v. Grate, 92 Mo.

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

F. O. Johnston, Judge. Courts zealously guard against the efforts of principals to avoid the payment of legitimate commissions to agents whom they have employed in the sale of their property. The rule is that, “Where the broker is the instrument through which the sale has been effected, no sort of artifice, deceit or fraud, will deprive him of his commission.” Cordér v. O’Neill, 176 Mo. 401; Bracken-ridge v. Claridge, 43 L. R. A. 593.

— Hon. F. G. Johnston, Judge. (1) The court erred in taking up the motion to dismiss the appeal as soon as filed without giving defendant’s attorney any time to examine same or to present the questions involved. R. S. 1899, secs. 641, 3974; Paddock v. Somes, 102 M'o. 226; State v. Underwood, 76 Mo. .630; Remhardt v. Kemff, 72 Mo-. App. 649.

<p>STREET RAILWAYS: Lessor and Lessee: Liability of Lessor for Lessee’s Torts. The owner and lessor of a street railway is not liable for personal injuries to a passenger on one of its cars caused by the negligence of the lessee operating such street railway. [Following Moorshead v. United Railways, 203 Mo. 121.]</p>

Louis City Circuit Court. — Hon. J. W. McMhinney, Judge. In cases where the danger is so great, or apparent, that a man of ordinary intelligence and prudence would have observed it, then, as a matter of law, the man so observing, and not avoiding it, is guilty of contributory negligence. Bradley v. Railroad, 138 Mo. 293; Monahan v. Coal Co., 58 Mo.

Louis City Circuit Court. — Eon. John A. Blevins, Judge. (1) The demurrers to the evidence offered at the close of plaintiff’s case and at the close of the entire case should have been sustained. • It is undisputed that had the plaintiff looked, or had any one on the fire truck looked, the approaching car could have been seen in time to have avoided going on the track, or by hurrying across before the car struck the fire truck.