Volume 125 — Missouri Appeal Reports

Louis City Circuit Court. — No». Matt. ' G. Reynolds, Judge. The demurrer to plaintiff’s evidence offered at the close of his case in chief should have been sustained. Galbraith v. Fleming, 27 N. W. 581; Harrison v. Fink, 12 Fed. 787; Sonnen v. Transit Co., 102 Mo. App. 271; Eads v. Railway, 18 Mo. App. 586; Scott v. Railway, 53 Hun (N. Y.) Ill; Wise v. Railroad, 91 Ky. 537, 31 S. W. 891; Railway v. Wetmore, 19 Ohio St. 110, 2 Am. Rep. 373; Peavy v. Railroad, 81 Ga. 185.

— Eon. L. B. Woodr side, Judge. (1) The court erred in refusing to give instruction No. 2 asked by defendant, which was as follows: The court instructs the jury that the road crossing testified to by the witnesses was in contemplation of law a public crossing, and the defendant was not required to fence its road at that point. Walton v. Railroad, 67 Mo. 56; Luckie v. Railroad, 76 Mo. 639; Brown v. Railroad, 20 Mo.

<p>STREET RAILWAYS: Lessor and Lessee: Liability of Lessor for Lessee’s Torts. Tiie owner and lessor of a street railway system is not liable for tbe torts of its lessee in full charge of the operation and management of the system. [Following Moors-head v. United Railways Company, 119 Mo. App. 541.]</p>

— Hon. F. G. Johnston, Judge. Under tbe State’s evidence it was clearly tbe duty of tbe court to sustain tbe demurrer to tbe State’s evidence.

Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge. (1) The demurrer of defendant St. Louis Car Company, offered at the end of plaintiff’s case, was properly overruled. Sacks v. Car Co., 87 S. W. 80. ,(2) This case comes within the doctrine of res ipsa loquitur. Dougherty v. Railroad, 81 Mo. 329. (3) Appellant cannot complain that the court sustained the demurrer 'of Ratterman Building & Contracting Company. (4) Plaintiff’s instruction No. 1 was properly given.

<p>1. ADMINISTRATION: Life Insurance: Liability of Heirs ■ for Debts of Ancestor. The heirs are not liable for a debt of their ancestor, although they received the proceeds of a benefit certificate in a fraternal benefit society on his life. This is true whether the premiums on the insurance were paid by the ancestor or not. [R.' S. 1899, sec. 1418.]</p> <p>2. PRACTICE: Record Proper: Motion for New Trial and in Arrest. . Where the record shows that the proceeding was an attempt to procure the allowance of a demand against the estate of minor defendants for a debt which their ancestor owed, there was no statement of a cause of action. This was shown upon the record proper and could be taken advantage of in the court of appeals, though there was no motion for new trial or in arrest of judgment filed in the trial court.</p>

— Hon. F. O. Johnston, Judge. (1) It will he observed that the policy had long before been delivered to plaintiff and since the list of employees was constantly changing the mode of securing this list and the persons to whom it applied was a subject of subsequent oral arrangement.

Louis City Circuit Court. — Eon. Wm. M. Kinsey, Judge. (1) All of the instructions given by the court tender plaintiff’s theory of the case to the jury. These instructions are to be considered in their entirety and not as though each separate instruction was intended to embody the whole law of the case, and if taken as a whole they fairly state the law applicable to the case; this is sufficient.

<p>1. TRESPASS ON THE CASE: Negligence: Nominal Damages. While the owner of land may recover nominal damages without showing any actual damages in an action in the nature of trespass quare clausum fregit, he could not in an action of trespass on the case for damages to his premises caused hy negligent blasting and for damages to his cattle caused hy frightening and driving them, recover without showing actual damages.</p> <p>2. -: -: Actual Damages. In an action for damages caused to plaintiff by negligent blasting and throwing rocks upon his farm from an adjacent quarry, where the evidence tended to show that an insignificant amount of plaintiff’s corn was knocked down, his cattle frightened and driven around without any appreciable effect upon their weight or value, this was sufficient to w'arrant a verdict for the defendant.</p>

— Hon. Henry C. Riley, Judge. The court erred in overruling plaintiff’s objections to the competency of Mike Stevens and Elias Nunn, to hear and try this cause. Bilmeyer v. Transit Co., 108 Mo. App. 6; State v. Fullerton, 90 Mo'. App. 411. (a) Appellant complains that his challenges for cause of jurors Stevens and Nunn should have been sustained. The juror Stevens bad heard a case tried between another person and this defendant.

Louis City Circuit Court. — Hon. Daniel G-. Taylor, Judge. The demurrer to the evidence should have been sustained. Williams v. Railway, 78 S. W. 45. The court erred in giving the first instruction on behalf of plaintiff because the charge of negligence submitted therein is not sustained by the evidence. M'eily v. Railroad, 107 Mo. 466; Campbell v. Railroad, 175 Mo. 181; Reno v. Railroad, 180 Mo. 487; Hienyle v. Railway Co., 182 Mo. 559. .

— Hon. Jas. T. Ne-ville,, Judge. In directing tlie jury to find no more than nominal damages, in any event, the court erred. For it was the jury’s business to fix the amount of the damage, and not the court’s. Berlin v. Thompson, 61 Mo. App. 243; Spencer v. Railway, 120 Mo. 159. It was error to instruct against a recovery for the injuries to the house and cistern.

Louis Circuit Court. — Hon. Robert M. Foster, Judge. (1) The burden of proof was upon the plaintiff to prove the negligence charged. Holly v. Gaslight Co., 8 Gray 123.

Louis City Circuit Court. — Now. Daniel D. Fisher, Judge. (1) Where all the directors in one corporation are directors in another, and assume to represent both in transactions in which their interests are opposed, the substantial elements of a contract are wanting, a breach of trust is obvious, since the same persons cannot serve two antagonistic masters.

<p>Appeal from St. Louis County Circuit Court. — Eon. J. W. McElhinney, Judge.</p> <p>The demurrer to the evidence should have been sustained. McG-auley v.' Transit Co./ 179 Mo. 583; Reno v. Railway, 180 Mo. 469; Roenfeldt v. Railway, 180 Mo. 534; Theobald v. Transit Co., 191 Mo. 395; Zurfluh v. Railway, 46 Mo. App. 636; Cogan v. Railway, 101 Mo. App. 179. The first is, there was no evidence to show any connection of the United Railways Company with the railway line or car in question. R. S. 1899, sec. 1187; Eyre v. Jourdan, 111 Mo. 428; 1 Beach on Private Corporations, sec. 367; 3 Thompson on Corporations, sec. 588; Mr. Freeman’s Note, 71 Am. Dec. 297; Arrowsmith v. Railroad, 57 Fed. 165; 3 Wood’s Railway Law, sec. 490; Nellis on Street Surface Railroads, p. 266, sec. 16; 2 Elliott on Railroads, p. 605, sec. 469. Plaintiff’s instruction numbered 1 is erroneous and should not have been given. The third paragraph of the instruction is erroneous, because there is no evidence from which the jury could fairly find that the motorman saw, or could have seen, the wagon and team on the track in a position of peril in time to control the speed of the car and avoid the collision. Reno v. Railroad, 180 Mo. 469; Holwers'on v. Railroad, 157 M’o. 216.</p> <p>(1) Appellant contends that the driver was guilty of such negligence as precluded a recovery, and hence a demurrer to the evidence should have been sustained. The facts are that the driver waited at the lunch stand for a north-bound car to pass him; then he looked south along the track; seeing no car in sight he drove onto the track and continued north thereon for a distance of four hundred and seventy feet at a speed of five miles per hour — in other words he drove north on that track for fifty-five seconds, when he was struck from the rear. That this was not such negligence as would defeat a recovery in this action is shown by the cases of Morgan v. Railroad, 159 Mo. 262; Grocery Co. v. Railroad, 89 Mo. App. 391; Barrie v. Transit Go., 102 Mo. App. 92; Kolb v. Transit Go., 102 Mo. App. 143; Biscuit Go. v. Transit Go., 82 S. W. 288; Degel v. Transit Go., 101 Mo. App; 56; Moritz v. Transit Go., 102 Mo. App. 557; Dairy Go. v. Transit Go., 103 Mo. App. 90; Scullin v. Railroad, 82 S. W. 760; Woods v. Railroad, 86 S. W. 1082. (2) Again plaintiff’s case is predicated upon the theory that defendant’s motorman either saw, or by the exercise of ordinary care would have seen plaintiff’s position of peril in time to have averted the injury by the exercise of ordinary care. If there was evidence to sustain this hypothesis, then the rule as laid down in Kloekenbrink y. Railroad, 172 Mo., is applicable.</p>

— Hon. William, B. Teasdale, Judge. (1) It was error to permit witness Dr. Beattie to give his opinion as to the cause of the injury when the question did not embrace all the facts which should have been included, the particular objection being that it did not mention the. physical condition of plaintiff at the time of the accident.

— Hon. Chas. A. Denton, Judge. The evidence in this case shows that plaintiff, without having waited until the end of the time designated in the contract for the delivery of the com in question by the defendant to the plaintiff, went upon the “floor of the exchange” at Kansas City, and bought the corn and so notified the defendant of such fact. ' This released the defendant from the performance of the contract on his part, he, defendant, not having previously notified…

— Eon. Samuel Davis, Special Judge. (1) The first defense relied upon is not tenable. Where a taxbill is issued for an amount, a part of which is legal, and a part illegal, it can be enforced for the legal or just amount. St. Joseph ex rel. v. Wilshire, 47 Mo. App. 125; Neenan v. Smith, 60 Mo. 292; Bank y. Arnoldia, 63 Mo. 229; Bank v. Nelson, 64 Mo. 418; Farrar y. St. Louis, 80 Mo. 393; St. Joseph v. Denahar, 61 Mo. App. 317; Marionville ex rel. v. Henson, 65 Mo.

— Hon. Sanford B. Ladd, Special Judge. (1) This case must he reversed for error in giving respondent’s instruction numbered 5, authorizing the recovery of an amount for obligations incurred for “medical treatment and attention” in excess of the amount claimed and for expenditures therefor not alleged to have been made.

— Eon. James E. Slover, Judge. (1) The court erred in admitting the testimony of Dr. Forster in regard to the permanent injuries of plaintiff. The question was objectionable in form in that it called for the opinion of the witness upon a state of fact not disclosed by the evidence; and also because it passes upon a question to be submitted to the jury. Turner v. Haar, 114 Mo. 345; Senn v. Railway Co., 108 Mo. 143; Russ v. Railroad, 112 Mo. 45; Smart v. K. C., 91 Mo.

— Son. James S. Slover, Judge. (1) The undisputed evidence shows that the diamond stud was given to appellant by Patterson Stewart in 1898, while she was occupying his house as tenant. No element was lacking to constitute this a valid gift inter vivos. There were an intention to give, a delivery of possession, and an acceptance by the donee. 20 Cyc. of Law and Procedure, 1192; Brandon v. Dawson, 51 Mo. App. 237; In re Estate of Soulard, 141 Mo. 657.

— Hon. Alonzo D. Bwrnes, Judge. (1) A finding of court must show upon which count of petition it is based, and must dispose of every count. Wells v. Adams, 88 Mo. App. 215; Grimes v. Sprague, 86 Mo. App. 245; Welsh v. Stewart, 31 Mo. App. 376; Griggs v. Deal, 30 Mb. App. 152; Adams v. Railroad, 58 Mo. 386; St. Charles v. Duel, 45 Mo. 269; Pitts v. Fugate, 41 Mo. 405; Clarks v. Railroad, 36 Mo. 202. And must dispose of every party to the record.

— Eon. Henry L. McCune, Judge. (1) The court erred in'overruling defendant’s motion to strike out the amended petition of plaintiff. It was a departure fr'om the original petition; the cause of action alleged in the amended petition required different proof from that in the original petition. Lump-kin v. Collier, 69 Mo. 170; Hernán y. Glann, 129 Mo. 335.

— Hon. William B. Teasdale, Judge. (1) The petition states a cause of action, and the evidence tends to prove the allegations of the petition. Laclede Co. v. Iron Works, 169 Mo. 137; Publishing Co. v. Walker, 87 Mb. App. 305. (2) The court erred in giving the declaration of law which was in the nature of a demurrer to the evidence. Laclede Co. v. Iron Works, 169 Mo. 137; Publishing Co. v. Walker, 87 Mo. App. 305. (3).

— Mon. James M. glover, Judge. (1) The court erred in ignoring the equity count of the petition and in submitting the issues made by both the law and equity counts to the jury together. The pleadings presented no issue triable to a jury. The case was triable solely to the court.

— Son. John P. Butler, Judge. (1) The court had no right to reject Messrs. William Fulcher, Walter Bowman and George Frazier upon the voir dire examination of the jury for the sole reason that they were members of the appellant society. No evidence of prejudice on their part, was shown, in fact, no questions along that line were asked. (2) The court should have given to the jury instructions numbered 3 and 4 asked by the appellant.

<p>1. COMMON CARRIERS: Cattle Shipment: Delay: Reasonable Time. An agreement for the transportation of cattle which does not fix a time of delivery must be complete in a reasonable time and the customary time for such shipments ■ will be considered a reasonable time.</p> <p>2. -: -: - — : Negligence. Mere proof of delay is not proof of negligence. There must be something additional which characterizes the delay as culpable.</p> <p>3. -: -: -: -: Accident. A mere delay of three hours in starting from a shipper’s station will not fix the liability for negligence, especially where it affirmatively appears that such delay was caused by an unforeseen accident in running over a man; and a carrier like other bailees may excuse delay in delivery by accident or misfortune.</p> <p>4. -: -: -: Interstate Law. Stopping a shipment of cattle to feed them in compliance with the interstate commerce act excuses the carrier’s delay in delivery caused thereby; but if negligent delay causes the unloading of the cattle to comply with said law then it would not ■ excuse.</p> <p>6. -: -: -: -: Evidence. Evidence in the record held sufficient to show the compliance with the interstate act was necessary.</p> <p>6. -: -: --: Pleading: Evidence. Where an action is founded on negligent delay in delivery there can be no recovery on a failure to furnish proper trains with faster schedule; and evidence of the schedule of other trains can have no application.</p>

<p>Appeal from Jackson Circuit Court, — Hon. John G. Parle, Judge.</p> <p>(1) The verdict was so excessive as to show passion and prejudice on the part of the jury. Nicholds v. Glass Co., 126 Mo. 55; Johnson v. Eailroad, 67 Minn. 260; Collins v. Janesville, 111 Wis. 348; Bennett v. Backus L. Co., 77 Minn. 99; Corcoran v. Western D. E. Co., 40 N. Y. Supp. 1117. (2) The court erred in not granting a new trial on the ground of newly-discovered evidence. Folding Bed Co. v. Eailroad, 148 M'o. 478; Howland v. Eeeves, 25 Mo. App. 458. (3) The court erred in this because the court refused to permit defendant’s counsel to state the evidence to the jury and in the presence of the jury commented on and misstated, the evidence of Dr. Wilson in regard to respondent’s injuries. State ex rel. v. Mfg. Co., 149 Mo. 181; Schmidt v. Eailroad, 149 Mo. 269; Wright v. Eichmond, 21 Mo. App. 81; Cronkhite v. Dickerson, 51 Mich. 177; Wheeler y. Wallace, 53 Mich. 355; Andreas v. Ketcham, 77 111. 377; Perkins v. Kinsely, 204 111. 275; Padgitt v. Moll, 159 Mo. 157; Neil v. Abel, 24 Wend. 185; M'itchell v. Carter, 14 Hnn 448; Stroker v. St. Joseph, 117 Mo. App. 350. (4) The court erred in refusing defendant’s instruction numbered 5 and giving it as modified. Jackson v. Kansas City, 106 Mo. App. 52; Wheat v. St. Louis, 179 Mo. 572.</p>

<p>Appeal from Carroll Circuit Court. — Hon. John P. Butler, Judge.</p>

— Eon. William B. Teasdale, Judge. (1) (a) The court erred in the admission of the testimony of Creta M. Fulton, in which the witness compared the ability of plaintiff to “get around” after the injury with the same before the injury, (b) The court erred in the admission of the testimony of Mrs. B. Fitzgerald to the effect that plaintiff “appeared to be suffering.” (c) The court erred in the admission of the testimony of Mrs. F. M. Darnall as to the “activity” of plaintiff.

Appeal fiom Daviess Circuit Court. — Non. Joshua W. Alexander, Judge. (1) What was the apparent and actual scope of Ogden’s authority under the partnership? Appellant did not rely upon this presumption alone. The record conclusively show's that Ogden possessed this power by the very terms of the partnership agreement. Respondent’s testimony is clear and circumstantial on this point.

— How. William 0. Ellison, Judge. (1) The deeds all contain an assignment of tbe covenants, but whether they do or not, the covenants attach to and pass with the land, so that the present owner or party on whom the loss falls, though a purchaser at sheriff’s sale, may sue upon the covenants. Dickson v. Desire, 23 Mo. 151; Charles y. Smith, 23 Mo. 174. So may one holding under a quitclaim deed. 10 Mo. 203; 119 Mo. 280; 79 M'o.. App. 248.

— Eon. Alonzo D. Burnes, Judge. (1) The court cannot 'make a new will for the parties. (2) The trustee must act strictly within the terms of the will and cannot get credit for any money expended except such sums as are plainly authorized. Drake v. Crane, 127 Mo. 102; Garesche v. Investment Co., 146 M’o. 448; Davis v. Hoffman, 167 Mo. 582; In re Bowie’s Est., 74 Mo. App. 191.

Appeal form Jackson Circnit Court. — Hon. John G. Park, Judge. (1) The court erred in refusing to sustain tbe demurrer of appellant. There was no evidence that the employees saw or might have seen plaintiff getting off the car, and the physical facts disproved her evidence in relation to the same. Jackson v. Railroad, 118 Mo. 220; Price v. Railroad, 72 Mo. 416. (2) The court erred in giving instructions asked by the plaintiff.

— Hon. John P. Butler, Judge. (1) In a proceeding to establish a private road the appeal is governed by sections 1674 and 1788, Revised Statutes 1899, and when the case reaches the circuit court it is tried de novo and without regard to errors committed by the county court. Colville v. Judy, 73 Mo. 651; Bennett v. Hall, 184 M'o. 407.

— No». Alexander N. Waller, Judge. (1) There was no formal arraignment of defendant or entry of plea, hence the judgment of the court is void. R. S. 1899, sec. 2561; State v. Geiger, 45 Mo. App. Ill; State v. Haycroft, 49 Mo. App. 488; State v. Hoffman, 70 Mo. App. 271; State v. Sharpe, 95 S. W. 299. Unless the record shows an arraignment the verdict must he set aside.

— Horn. Joshua W. Alex- ■ ander, Judge. (1) Tbe petition was to recover damages for assault with intent to rape, but plaintiff testified that she was raped. Now, whether this testimony was with or without probative force in view of the surroundings, it Avas insufficient to sustain the cause of action declared on. It was error to refuse the demurrer to the evidence. 1 Bishop’s Crim. Law (7 Ed.), sec. 786; 20 Am. and Eng. Ency.

— Hon. W. P. Cave, Special Judge. (1) The court will place upon the contract that construction which will make it most reasonable and just to all parties. Bishop on Contracts, sec. 400.

— Norn. Hugh Dabbs, Judge. (1) To constitute a watercourse there must he-a stream usually flowing in a particular 'direction, though it need not flow continually; it must flow in a definite channel, have a bed, sides or banks and usually discharge itself into some stream or body of water. Benson v. Railroad, 78 Mo. 504; Jones v. Railroad, 18 Mo. App. 251.

<p>Appeal from Holt Circuit Court. — Now. 'William, C. Ellison, Judge.</p>

<p>SALES: Construction: Guaranty: implication. A contract relating to the sale of certain corn chops is construed to mean that they were to be delivered to the consignee at his business town in a good merchantable condition, since the word “guaranteed” used in the contract is equivalent to “warranty.” Such quality would have been implied had the contract been silent in that respect.</p>

Appeal front Jackson Circuit Court . — Hon. Henry L. MoGune, Judge. (1) The instructions asked and given for the plaintiff wholly fail to advise the jury what issues they are to determine, hut leave, the same to the unrestrained action thereof. Butcher v. Deane, 15 Mo. 271; Gessly v. Railroad, 26 Mo. App. 156; Fleischmann v. Miller, 38 Mo. App. 177; Allen v. Transit Co., 183 Mo. 532; Boyd v. Transit Co., 108 Mo. App. 306; Summers v. Transit Co., 108 Mo.

— Ho». Nat M. Shelton•, Judge. (1) The trial court erred in instructing the jury that they could find for the plaintiff even though he was properly ejected, if they further found that he was ejected with unnecessary force or at an unsafe and dangerous place.

— Hon. Joshua W. Alexander, Judge. An action of replevin cannot be maintained in this State, where the defendant had not possession or control of the goods at the time the writ of replevin was issued. Davis v. Randolph, 3 Mo. App. 454; Rogers v. Davis, 21 Mo. App. 150; Myers v. Lingenfelter, 81 Mo. App. 251; Shinn on Replevin, p. 153, par. 164; Cobbey on Replevin (2 Ed.), p. 34, par. 61.

— No». Nat. M. Shelton, Judge. (1) The sheriff’s return on the writ of attachment does not show whose property was attached; it does not state that relator had any interest in the property attached, or that it was taken out of his possession. The court erred in permitting the return to be read in evidence. A levy on mules, generally, without stating whose they were, or in whose hands they were is riot a good levy; the return and levy are bad.

— Eon. Ghesley A. Mosman, Judge. (1) The plaintiff should have been nonsuited. (2) The plaintiff should have been nonsuited for the further reason that the physical facts show that the injury to plaintiff was the result of pure accident, or was caused by plaintiff’s own carelessness. Dean v. Woodenware • Co., 80 S. W. 292; Barberi Case, 118 Mo. App: 218. (3) Plaintiff’s first instruction is erroneous.

— Hon. William H. Martin, Judge. (1) The note was properly indorsed and transferred to appellant. Mayer v. Old, 57 Mo. App. 639; Bank y. Stoneware Co., 4 Mo, App. 276; Bank v. Fesler, 89 Mo. App. 217. (2) The note is a negotiable promissory note. Randolph on Com. Paper, sec. 2.01; Daniel on Neg. Inst. (4 Ed.), sec. 54; Bank v. Goode, 44 Mo. App, 129; Hill v. Todd, 29 111. 101; Nicely v. Bank, 18 Ind. App. 30; Clauser v. Stone, 29 111. 114.

— Now. William B. Teasdale, Judge. The court erred in its refusal to give the declarations of law as asked hy the defendant, and especially those numbered 1, 5, 6 and 7. Yonge v. Transit Co., 109' Mo. App. 235; Leslie y. York, 66 S. W. 751; O’Con-nor y. Transit Co., 97 S. W. 150; Taylor y. Transit Co., 97 S. W. 156; Wilbur v. Baker, 24 Hun (N. Y.) 24. (1) The opinion of this court on the former appeal is the law of the case upon this appeal.

— Now. Levin W. Shafer, Judge. (1) Mrs. Martin, plaintiff. W. A. Martin’s wife, was clearly incompetent to testify on behalf of her husband and the objection to her testimony should have been sustained by the court. Moore v. Wingate, 53 Mo. 409; Tucker v. Gentry, 93 Mo. App. 663; Lynn v. Hockaday, 162 Mo. 123; 2 Rice on Evidence, sec. 381, and cases cited.

— Eon. Samuel Davis, Judge. (1) Upon exhibit A, and the above parole evidence, the court erred in giving a peremptory instruction to find for plaintiff sixty-four dollars. The false and fraudulent statements and misrepresentations of the agent stand admitted, he being present in court and not called to contradict them. Baldwin v. Whitcombe, 71 Mo. 651; Wells v. Adams, 87 Mo. App. 227.

— Hon,. Samuel Davis, Judge. (1) The instructions must be predicated upon tbe case made by the pleadings, and it is error to submit an issue in an instruction not made by tbe pleadings. Dunn y. Railway, 21 M'o. App. 188; Heinze y. Railway, 182 Mo. 528; Bond y. Railway, 110 Mo. App. 131; Heck-er y. Railway, 110 Mo.. App. 162; Yarnell y. Railway, 113 Mo. 570.

— No». Howard Gray, Judge. (1) It was necessary, in order to state a cause of action, that the amount of the principal of the mortgage debt be averred in the petition. In this way only, could the court determine the amount (if any) of the penalty for which the defendant was liable. Henry v. Orear, 104 Mo. App. 576.

— Hon. Hugh Dabbs, Judge. (1) The court should have given the instruction in the nature of a demurrer to the evidence offered by defendant at the close of plaintiff’s case and at the close of all the evidence.

<p>SELLING LIQUOR: Evidence: Clerk: Time. Evidence is reviewed and held not to show that the defendant knew of the alleged sale of whisky or that the person was his clerk or that the sale was within one year prior to the finding of the indictment.</p>

— Now. Argus Cox, Special Judge. (1) If the consideration of a contract is illegal, in whole or in part, this defeats the entire contract, and it is immaterial whether such illegality is declared by the contract, or' is established by evidence aliunde.. Brick v. Seal, 45 Mo. App. 475; Woolf oik v. Duncan, 80 Mb. App. 421.

— Hon. Francis Hoffmann, Judge. (1) The court erred in refusing to give the defendant’s instructions number five, six and nine. Number five declared that a station agent did not have authority by virtue of his position, to employ any one to render the services for which plaintiff sued, in the absence of express authority from some superior officer conferring upon the agent such power.

— Non. John P. Butler, Judge. (1) The court erred in refusing defendant’s demurrer to plaintiff’s evidence. There was no evidence that the defendant made any statement of fact to the plaintiff, either true or false, with respect to the Dade county property. It is elementary that in order for a false statement to be the basis of an action for fraud and deceit, the- false representation must be with reference to an existing fact.

— Hon. William H. Martin, Judge. (1) It is elementary that the jurisdiction of courts of limited and inferior powers must somewhere appear on the face of the proceedings, otherwise their acts are void. Karnes y. Alexander, 92 Mo. 660; Rohland v. Railroad, 89 Mo. 180; Barhydt & Co. y. Alexander & Co., 59 Mo. App. 195; Kincaid v. Griffith, 64 Mo. App. 673; Ewing v. Donnelly, 20 Mo. App. 6; Robbins y. Boulware, 190 Mo. 44.

— Hon. William B. Teasdale, Judge. (1) The court erred in giving instruction numbered one at the request of plaintiff. It placed a greater burden on defendant than the law imposes, in that it declared the law to be that the car should not have been started until plaintiff had become seated. Dougherty v. Railroad, 9 Mo. App. 485; Dougherty v. Railroad, 81 Mo. 325; Maggioli v. Transit Co., 10 Mo. App. 421; Yarnel] 113 Mo. 576.

— Hon. John G. Parle, Judge. (1) The court erred in not setting aside the verdict because it is against the evidence and the greater weight of evidence. (2) The court erred in not setting aside the verdict because the record shows the verdict is so palpably against all the credible evidence that it shows the jury were actuated by passion and prejudice.

— Now*. William B. Teasdale, Judge. (1) A private individual cannot grant a license to a railroad to construct a track over bis land and be permitted to charge shippers for the privilege of allowing cars to be transported over the track on bis land. (2) Railroad companies may take land by grant, easement, license or condemnation or otherwise, but it must • be taken and used solely and only for public purposes. R. S 1899, secs. 1035, 1054.

— Hon. Chesley A. Mosman, Judge. (1) The evidence excluded by the court to part of the conversation between Mr. Gabbert and Mr. Penfield, even though it referred to what some other person, namely Judge R. E. Culver, had told Mr. Penfield, was relevant, competent and material, as the entire conversation was admissible in evidence so that the jury could form a correct conclusion from all that occurred at such conversation.

— No». John P. Butler, Judge. (1) The judgment should be affirmed for the reason that nowhere in appellant’s abstract does it appear that any steps were ever taken for an appeal or that an appeal was ever granted. Greenwood v. Parlin, 98 Mo. App. 407; Jordan v. Railway, 92 Mo. App. 81.

— Now. George W. Wannemaher, Judge. (1) The court erred in overruling appellant’s, instruction in the nature of a demurrer to the evidence. (2) The plaintiff being accustomed to riding on freight trains knew there was necessarily more or less jerking and jolting in starting and stopping the train, and assumed all the risk incident to riding on said train. There was no unusual or extraordinary jar or jolting of the train proven.

. Appeal from Gentry Circuit Court. — Hon. William 0. Ellison, Judge. (1) The table in question does not form a part of the policy. 1 Wood on Fire Insurance (2 Ed.), sec. 61 p. 167; 1 May on Insurance, sec. 29A; 1 Beach on Insurance, sec. 517; Kingsley v. Insurance Co., 8 Cush. (Mass.) 403; Insurance Co. v. Rowland, 66 Md. 240; Stone v. Casualty Co., 34 N. J. L. 376; Insurance Co. v. Harmer, 2 Oh. St. 452, 59 Am. Dec. 694; Yilas v. Insurance Co., 72 N. Y. 590, 28 Am.

— No». Ohesley A. Mosman, Judge. (1) The contract introduced in evidence by plaintiff does not show that it was the duty of the engineer to designate the established grade, but on the contrary, the profile and specifications were filed with the board of public works and were made a part of the plaintiff’s contract, giving the established grade for plaintiff, and under the contract it only became the duty of the said -engineer and. board of public works to superintend and…

— No». Howard Gray, Judge. There was no arraignment of the defendant. There was therefore no issue to be tried by the jury. State v. Lewellen, 93 Mo. App. 469; State v. Hull, 73 Mo. App. 300; State v. VanHook, 88 Mo. App. 105; State v. Sharpe, 95 S. W. 298. W. N. Andrews and H. L. Bright, fór respondent, filed no brief.

— Hon William H. Martin, Judge. (1) Tbe trial court .erred in overruling defendant’s plea in bar. An issue of fact was raised by it and entitled defendant to a trial of that issue. State v. Anderson, 166 Mo. 28; State v. Huffman, 186 Mo. 63; State v. Scbmidt, 136 Mo. 644; State v. Wiseback, 139 M'o. 216; State v. Harris, 47 Mo. App. 558. (2) There was no person named in the information to whom the sale was alleged to have been made.

— Hon. James H. Sloven, Judge. (1) Plaintiff’s reply to defendant’s second amended answer is insufficient in every respect and contains only conclusions of law and thereby becomes an admission of the facts as set up in defendant’s second amended answer. Our Supreme Court has especially held such answers bad, and that the defendant is in no case compelled to file a motion to make such answers more definite and certain or sufficient.

— Hon. Hugh Dabbs, Judge. (1) The courts of this State have uniformly held taxbills to be valid in cases in which the facts and circumstances are almost identical with those in this case. Sparks v. Land Co., 99 Mo. App. 489; Hilbert v. Asphalt Co., 107 Mo. App. 400; Rund v. Rackliff, 192 Mo. 312.

— Hon. Armwell L. Cooper, Special Judge. (1) The court erred in giving plaintiff’s instruction number 1. It purported to cover the whole case, yet authorized a recovery for plaintiff without requiring plaintiff to have been in the exercise of ordinary care herself. It was also in conflict with number 7 and 8 for defendant. Lumber Co. v. Tie Co., 87 Mo. App. 177; Flynn v. Bridge Co., 42 Mo. App. 529; Implement Co. v. Ritchie, 43 Mo. 587; Boothe v. Loy, 83 Mo.

&wkey;ffow. Argus Cox, Judge. (1) The shareholders are hound to make good to the creditor to the extent of their subscription in some form of proceeding, Walker v. Lewis, 49 Tex. 123. Liability of shareholders to creditors are not exhausted until they have made full payment of their subscription. Green v. Medical Co., 96 Cal. 322; Railroad v. Spreckles, 65 Cal. 193; Gainey v. Gilson, 149 Ind. 58; Spense v. Iowa Con. Co., 36 Iowa 407; Monaghan y. Hall, 18 La. Ann. 310.

— Now. Samuel Davis, Judge. (1) ' For material error apparent on the face of the record, the appellate court will reverse a cause, although no motion for a new trial, in arrest or for review is made in the court below. Mclntire v. Mclntire, 80 Mo. 470; In re Garrison v. Trust Go., 77 MG'. App. 337; Land Go. v. Bretz, 125 Mo. App. 418; State ex rel. v. Scott, 104 Mo. 26; Distilling Go. v. Hubbard, 53 Mo. App. 23.

— Hon. Hugh Dabbs, Judge. (1) The order of the county court granting a license to the defendant did not constitute defendant a licensed dramshop keeper. The license toust be actually issued and delivered. State v. Totman, 82 Mo. App. 56; State v. Barnett, 110 M'o. App: 592; State v. Hughes, 24 Mo. 147; 23 Cyclopedia, of Law, 111; 17 Am. and Eng. Ency. of Law, 236. (2) The state must show, affirmatively, that the offense was' committed prior to the filing of the information.

— Hon. Howard Gmy, Judge. (1) The Glendale Mining Company was not entitled to recover and the verdict should have been in favor of defendants and against the Glendale Mining Company, because under the evidence there is nothing to show that the Glendale Mining Company would have mined the ore that was mined by the defendants during the life of their license and under the rule laid down in such cases the licensee cannot- recover in trespass. Arnold v. Bennett, 92 Mo.

— Now. William N. Martin, Judge. (1) The judgment of the court is complained of by plaintiff in motions for rehearing and in arrest, and should be reversed, for defendant will not be permitted to retain the fruits of his venture and avoid its burdens. 24 Am. and Eng. Ency.,.p. 624, et seq; Robinson v. Siple, 129 Mo. 220; Jenkins v. Life Ins. Co., 79 Mo. App. 55; Bank v. Hunt, 76 Mo. 439; Wade v. Ringo, 122 M'o. 322; Fleckenstein v. Inv.

— Hon. James Hi Slover, Judge. (1) The court below erred in giving instruction nuimbered 3 asked by defendants, and refusing instruction numbered 5, asked by plaintiffs. Goodson v. Embleton, 106 M'o. App. 77; Nesbit v. Helser, 49 Mo. 383; Finch v. Trust Co., 92 Mo. App. 263; Reeves v. Vette, 62 Mo. App. 440; Tyler v. Parr, 52 Mo. 249; Gwinnup v. Sibert, 106 Mo. App. 709; Brown v. Smith, 113 Mo. App. 59; Hayden v. Grillo, 42 Mo. App. 1; Sallee v. McMurray, 113 Mo.

— Hon. William iB. Teasdale, Judge. (1) The court erred in submitting the cause to the jury. The evidence conclusively establishes the contributory negligence of the plaintiff:, and the court should have so declared as a matter of law. Watson v. Eailway, 133 Mo. 246; Moore v. Eailway, 176 Mo. 246; Cogan v. Eailway, 101 Mo. App. 179; Fanning v. Eailway, 103 Mo. App. 151; Burris v. Transit Co., 102 Mo. App. 87; Felling v. Eailway, 106 Mo.

— Hon. James H. 8lover, Judge. (1) Plaintiff utterly failed to show that any injuries sbe might be suffering from when examined by Dr. Hanawalt were caused by defendant. Unless this was done there can be no recovery; this was the principal issue in the case.

— Hon. William B. Teasdale, Judge. (1) The 'motion to set aside the judgment was in fact only a second motion for a new trial filed after the first motion for a new trial had been heard by the court and had been overruled, and the court had no power to set aside the judgment and grant a new trial on such 'motion filed after the lapse of more than four days after the rendition of the judgment.

<p>1. CONTRACTS: Frauds and Perjuries: Performance Within a Year: Writing. A contract not to be performed within a year from its making must be entirely in writing to be valid upon the Statute of Frauds and cannot be helped out by parol evidence.</p> <p>2. -: -: Pleading: Answering Over: issue. The petition on a contract within the Statute of Frauds averred that the contract was partly in writing and partly oral. The answer was a general denial with a statement of the contract in writ; ing setting up certain verbal matters as inducements to the contract. A reply to the the introduction of any evidence at the trial was overruled. Held, a petition which would he readily ruled to be defective if demurred to may be aided by answer and when an issue is tried which is tendered by an answer, complaint afterwards comes too late. The defendant should abide by the result of an issue that he aided in making.</p> <p>3. EVIDENCE: Frauds and Perjuries: Motion to Strike Out. Held, the motion to strike out certain evidence because of the Statute of Frauds was properly overruled. ></p>

— Now. John 0. Park, Judge. (1) The court erred in the admission of the testimony of Drake as an alleged witness on stopping cars: (a) It was a subject for expert testimony. Mammersberg y. Railroad, 62 Mo. App. 566; Rodgers on Expert-Testimony, sec. 237; Gourly y. Railroad, 35 Mo. App. 92; Mahr v. Railroad, 64 Mb. 276; Czezewzka v. Railroad, 121 Mo. 212; Culbertson v. Railroad, 140 Mo. 59; Grinnell y. Railroad, 73 la. 93; 6 Thompson on Negligence, sec. 7753.

— Eon. James E. Mover, Judge. (1) Plaintiff was clearly guilty of contributory negligence and the trial court should have taken the case away from the jury. Griffith y. Railroad, 44 Fed. 580 ; Hoag y. Railroad,- 111 N. Y. 199; Van Bush v. Railroad, 62 Kan. 709; Smith v. Railroad, 32 Atl. 967; Dean v. Railroad, 18 Atl. 718; Township of Crescent v. Anderson, 8 Atl. 379; Railroad y. McLeod, 29 So. 76; Dean y. Railroad, supra; Railroad v. Anderson, 8 Atl. 379.

— Hon. Howard Gray, Judge. (1) The court erred in ignoring- plaintiff’s claim for damages and deciding the case as though it was a bill in equity for an injunction alone. (2) The court erred in finding that there was any necessity to. change the creek onto plaintiff’s land when, obviously, the whole complaint could have been remedied by cleaning- out the creek at much less expense than was necessarily expended in digging the ditch.

— Hon. John P. Butler, Judge. - (1) All questions with regard to the character of the appellant as to whether or not it is a fraternal beneficiary association are disposed of so far as this appeal is concerned by the fact that the trial court found that the appellant was a fraternal beneficiary association and so instructed the jury, and no exceptions were saved to the giving of the same by the respondent. Westminster College v. Pierson, 161 Mo. 286.

— No». Samuel Davis, Judge. (1) The correct measure of recovery in this case is the reasonable value of plaintiff's services less what he has received in payment. (1) The plaintiff gave credit for the amounts which he claimed he received. The defendant offered no evidence whatever of any further or greater payments. If the defendant knew of other payments it became his duty to offer proof in that behalf.

— How-. William B. Teasdale, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. Cramer v. Traction Co., 112 Mo. App. 363; Hurt v. Railroad, 94 Mo. 263; Deming v. Railroad, 80 Mo. App. 156. (2) The court erred in giving plaintiff’s instruction number one. See authorities under point I. (3) The court erred in refusing to give defendant’s instruction number thirteen. Madison v. Railroad, 60 Mo. App. 608; Gray v. McDonald, 28 Mo.

— Hon. John G. Park, Judge. (1) The court erred in admitting certain portions of the testimony of Dr. Fellows; (a) some of it because it was an opinion and a conclusion of the witness; (b) and, finally, in overruling defendant’s motion to strike out all the evidence of this witness introduced for the purpose of showing rheumatic trouble in the years 1904 and 1905.

— Hon. William B. B. Teasdale, Judge. The court erred in overruling defendant’s demurrer to the plaintiff’s testimony, and again in overruling the demurrer to all of the testimony. Plaintiff utterly failed to show that her injuries were the result of any negligence on the part of defendant, to which she did not contribute, and if she did contribute to them she cannot recover.

<p>1. PASSENGER CARRIERS: Boarding Car: Sudden Start: Instructions. Certain instructions had properly stated the requisite care to be exercised by both carrier and passenger; an instruction then said that if the “defendant’s servants knew, or by the exercise of proper care could have known,” etc. Held, the expression of “proper care” was not prejudicial.</p> <p>2. -: -: -: -. The criticism of an instruction because it said if defendant’s servants “started the car or permitted it to be started,” is held without merit.</p> <p>3. -: -: -. The court modified an instruction so that it read that plaintiff’s statements against her interests were “presumably true” instead of that they were “absolutely true.” Held, proper.</p> <p>4. EVIDENCE: Irresponsive Answer: Error. Striking out an irresponsive answer is not error.</p>

— Hons. Shannon C. Douglass and Henry L. McCune, Judges. • (1) There was no existing reason, when the contract was made, why the work embraced by it should not be commenced immediately, and the contract specified that the work should be commenced within ten days from the time the contract became binding and took effect, and made it an essential condition of the contract that the work should be commenced within said ten days. 7 Am. and Eng.

— Eon. Joshua W. Alexander, Judge. (1) Failure to name James H. Mulligan, the Hannibal & St. Joseph Railroad Co. and the school district as owners of land to be affected by the establishment of the road petitioned for rendered the road petition void. Spurlock v. Dornen, 182 Mo. 242; St. Louis v. Koch, 169 Mo. 687. (2) As the record of the board on its face showed the board never had jurisdiction to condemn the land, it afforded the defendants no protection.

— Hon. John G. Parle, Judge. (1) Where money is paid to an agent for the benefit of a disclosed principle and such agent delivers the money to his principle, it cannot be recovered from the agent. The right of action is against the principle alone. 1 Aim. and Eng. Ency. .of Law, 1119; Winningham v. Pancher, 52 Mo. App. 462; Bogart v. Crosby, 80 Cal. 195; Zimttnele v. Plaster Board Com., 1 N. Y. App-. Div. 327; Grocery Co. v. Bank, 118 Ala. 408; Kurzowski v. Schneider, 179 Pa.

— Hon. Joshua W. Alexander, Judge. (1) Under section 8079, Revised Statutes 1899, under which defendant is incorporated, the provisions of the constitution and by-laws become a part of the contract of insurance without being referred to in the policy, and the court committed error in refusing defendant’s declaration of law numbered 27, so declaring. Havens v. Insurance Co., 123 Mo. 417, and cases cited.

— No». Joshua, W. Alexander, Judge. (1) The Burlington had a right to act on the authority of Clark’s letter, as he was president and general manager of the H. & K. and had been in charge of its business for several years prior thereto. R. S. 1899, sec. 974.

— Hon. John G. Park, Judge. (1) The court erred in giving instruction 2 as requested by plaintiff. This was not a proper case for the application of the rule res ipsa loquitur. Plaintiff was bound by the allegations of negligence in her petition and must recover for those or not at all.

— Hon. James H. Slover, Judge. • (1) The court erred in not giving the peremptory instruction as requested by defendant at the close of the testimony. The proof was overwhelming that plaintiff attempted to alight from the car before it had stopped — before, in fact, it had reached its stopping place, and under these circumstances this was such contributory negligence as to prevent a recovery.

<p>Appeal from Jackson Circuit Court. — Wro. B. Teas dale, Judge.</p>

<p>1. WITNESSES: Expert: Compensation. A witness, physician or other expert, may be compelled to give his opinion on hypothetical or other questions involving his professional knowledge without compensation other than the witness fee taxed to the ordinary witness: [Cases and history considered.]</p> <p>2. -: -: -: Extent of Duty. An expert owes it to the State rather than to the litigant to give the court the benefit of knowledge he has in store at the time he is called upon; but he cannot be compelled to make investigation in order to qualify himself to testify upon the given subject of litigation.</p> <p>3. -: -: -:-: Contract. A contract to pay an expert witness for any service which is necessary to qualify him to testify on the given subject in litigation, would be valid; but an agreement to pay for an expert’s testimony as to the matters he is required as a citizen to testify to, would be without consideration, against public policy and invalid.</p> <p>4. -: -: -: Custom. The fact that a physician’s custom was to charge extra for attendance as a witness in the line of his profession, of which custom the party calling him had knowledge when he subpoenaed him, will not validate his claim for compensation.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Jaclcson L. Smith, Special Judge.</p> <p>(1) Defendant’s motion to dismiss and for judgment should have been sustained. Whitsett v. Blu'menthal, 63 Mo. 479; Timmons v. Chouteau, 13 Mo. 223; Shreve v. Cheesman, 69 Fed. 785; Implement Co. v. Harvester Co., 133 Fed. 376; Bank v. Fritzlen, 135 Fed. 650. ’ (2) Instruction number 2 given for plaintiff contains an erroneous statement of the law and is in direct conflict with instruction number 1 given -for defendant. Instruction number 3 given for plaintiff is also erroneous. ‘Hughes, Instructions to Juries, sec. 247; McQuillin, Instructions to Juries in Missouri Civil Cases, sec. 291, and the Missouri cases cited; Redpath v. Lawrence, 42 Mo. App. 101. (3) Instruction B requested by defendant correctly states the law and should have been given. Harding, Whitman & Co. v. York Knitting Mills, 142 Fed. 228; 24 Am. and Eng. Ency. of Law, p. 1105; Plow Works v. Ross, 74 Mo. App. 437; Beal v. Minneapolis, etc., Co., 84 Mo. App. 539; Culbertson v. Young, 86 Mo. App. 277; Carson v. Smith, 133 Mo. 606. (4) Plaintiff’s evidence proved conclusively that the suit was prematurely brought and that plaintiff was not entitled to recover. Richardson v. Lowe, 149 Fed. 625; Cahn v. Reid, 18 Mb. -App. 115; Shoe Co. v. Bank, 56 Mo. App. 662; Chemical Co. v. Nickells, 66 Mo. App. 678; Ross v. Cates, 117 Mo. App. 237.</p> <p>(1) Respondent’s second and third instructions were correct, and any conflicting instruction given at appellant’s instance was error in his favor of which he cannot avail himself. Summers v. Insurance Co., 90 Mo. App. 691; Weston v. Mining Co., 105 Mo. App. 710; Fehlhauer v. St. Louis, 178 Mo. 653. If the false representation is one cause of the sale, it is fraudulent, though there may have been reliance placed on other matters. Kirkendall v. Hartsock, 58 Mo. App'. 234; Saunders v. McOlintock, 46 Mo. App. 224; Cahn v. Reid & Bunghardt, 18 M'o. App. 131; Hersey v. Benedict, 15 Hun 282. (2) The record below shows no point expressly raised as to the notes, but in any event the production and tender of the notes at the trial was alone necessary, especially as they were the buyers’ own unsecured and unnegotiated notes. Steamboat v. Lumm, 9 Mo. 66; Doebling v. Loos, 45 Mo. 152; Bertiaux v. Dillon, 20 Mo. App. 603; O’Bryan v. Jones, 38 Mo. App. 94; Commission Co. v. Railroad, 72 Mo. Appi 445; Thurston v. Blanchard,'22 Pick. 18; Girard v. Carwheel Co., 123 Mo. 387; Berkshire v. Hoover, 92 Mo>. App. 352; Bailey v. Bank, 99 Mo. App. 571, 575; Duval v. Mowry, 6 R. I. 479; Frost v. Lowry, 15 Ohio 200; Dayton v. Monroe, 47 M'ich. 193; Wood v. Garland, 58 N. H. 154; Coghill v. Boring, 15 Cal. 213; Ladd v. Moore, 3 Sanf. 589; Armstrong v. Tufts, 6 Barb. 432; Pearse v. Pettis, 47 Barb. 285; Nichols v. Michaels, 23 N. Y. 273; Ryan v. Brant, 42 111. 78. (3) In a suit based on a rescission on account of fraud, the vendor need not tender a part payment made by the purchaser, when the latter has disposed of a part of the goods of greater value than the amount paid. Hunt on Tender, sec. 33; Kley v. Healey, 127 N. Y. 555; Allerton v. Allerton, 50 N. Y. 670; Pearse v. Pettis, 47 Barb. 285; Symns v. Benner, 31 Neb. 597; Tootle v. Bank, 34 Neb. 863; Ladd v. Moore, 3 Sanf. 589; Farwell Co. v. Hilton, 84 Fed. 293; Iron Co. v. McEbony, 47 Neb. 228; Sisson v. Hill, 18 R. I. 212; Lewisjohn v. Apple, 12 Civ. Proc. R. (N. Y. 1887,) 274; Roby v. Frank, Herman & Co., 12 Tex. Civ. App. 125, 128.</p>

— Hon. E. W. Hinton, Special Judge. (1) The buyer of live stock is entitled and has a right to rely upon statements made by the seller concerning the condition of the animal and to treat such statements as warranties where they are not obviously mere expressions of opinion or dealers talk. 30 Am. and Eng. Ency. Law (2 Ed.), 158; Brausonv. Turner, 77 Mo. 489. (2) Appellants have a complete remedy by suing for damages after the purchase money has been paid. Kerrv.

— Hem. JoJm G. Park, Judge. (1) The court erred in giving instruction nulmbered 3, at the request of plaintiff, (a) It authorizes a recovery by plaintiff if he was injured while the car was “either stopped or was moving very slowly,” or “while it was either stopped or was running slowly.” There was no proof on which to base that portion relating to its “slowly moving.” Plaintiff’s testimony was that the car was stationary; defendant’s that it was running from four to five…

— No». Howard Gray, Judge. The taxbills, being prima facie evidence of all that was necessary to make out plaintiff’s case, tbe petition contained all tbe necessary, allegations and was sufficient. Joplin ex rel. v. Hollingsbead, 123 Mo. App. 602; Carthage ex rel. v. Bagley, 73 Mo. App-. 125; Vieths v. Planet Co., 64 Mo. App. 207.

<p>APPELLATE PRACTICE: Res Adjudicata: Former Appeal. Tlie former appeal of this case (117 Mo. App. 374) having settled all questions arising on this appeal, the judgment is affirmed.</p>