Volume 126 — Missouri Appeal Reports

— Hon. John G. Park, Judge. The court erred in refusing to give defendant railway company’s peremptory instruction asked at the close of plaintiff’s evidence, and again at the close of all the evidence. Reno v. Railway, 180 Mo. 489; Guyer v. Railway, 174 Mo. 350; Yan Bach v. Railway, 171 Mo: 347; Bromg v. Railway, 194 Mo. 551; Saxton v. Railway, 98 Mo. App. 501; Logan v. Railroad, 96 Mo.

— No». William B. Teasdale, Judge. (1) The correspondence shows that the proposition of compromise, made by defendant’s general baggage agent, was not accepted unconditionally; that the minds of the parties never met and that all propositions were withdrawn before and without acceptance.

— Hon. John P. Butler, Judge. (1) Cities may exercise, not only the powers expressly conferred, but those necessarily or fairly implied in or incident to the express powers and those indispensably necessary for the accomplishment of the purposes of corporate existence. The act of the city of Hale in issuing the warrant in question was the legitimate and reasonable exercise of a discretionary power.

-Appeal from Jackson Circuit Court. — Hon. Henry L. McGune, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence at the close of plaintiff’s testimony. Cagan v. Railway, 101 Mo. App. 190; Stokes v. Burns, 132 Mo. 223; Smith v. Railway, 113 Mo. 70; Hite v. Railway, 130 Mo. 141; Jackson v. Hardin, 83 Mo. 186; Powell v. Railroad, 76 Mo. 80; Redchenbach v. Ellerbee, 115 Mo. 588. (2) The court erred in giving the instructions asked by plaintiff.

— No». Andrew F. Evans, Judge. (1) The court committed error in sustaining the defendant’s demurrer to the evidence under the second count of the petition. There was evidence that the plaintiff was wrongfully and without a warrant arrested by the defendant and detective Sparks. McCaskeyv. Garrett, 91 Mo. App. 354; Boeger v. Langenburg, 97 Mo. 390; 1 Bouvier’s Law Dictionary, 755; 12 Am. and Eng. Ency.

— Hon. John G-. Parle, Judge. (1) Where there is an agreement of compromise and a default is taken pending such agreement the default will be set aside without requiring the showing of a meritorious defense. Browning v. Roane, 9 Ark. 354'; Stevens v. Thompson, 1 How.

— Hon. James H. Blover, Judge. (1) The petition was too general in its allegations of negligence. • (2) The trial court erred in permitting plaintiffs to prove the number and ages of their children, the nature and extent of Mrs. Latimer’s labors in the household prior to the accident and her inability thereafter to perform such labors.

— Hon. John Gr. Park, Judge. (1) The court erred in granting plaintiff a new trial, (a) Defendant’s instruction numbered 6 properly declares the law. This was an “accident” and it was properly defined. Saxton v. Railway, 98 Mb'. App. 504; Wendall v. Railway, 100 Mo. App.. 562; Henry v. Railway, 113 Mb. 534; 1 Words & Phrases, p, 66; Crutch-field v. Richmond, 76 N. C. 320; Hite y. Railway, 130 Mo. 140; Sawyer v. Railroad, 37 Mo. 241;' Story, Bailments, sec. 602.

— Now. Hermann Brwrbbach, Judge. (1) Appellee was incompetent as a witness to testify to the contract and cause of action in controversy, because she was a party thereto and her husband, the other party, was dead. R. S. 1899, sec. 4652. (2) Appellee was also incompetent to testify to the contract in controversy because it arose solely from communications between herself and her husband. R. S. 1899, sec. 4656.

— Ron. Ghesley A. Mosmcm, Judge. (1) Mulvane occupied the position of master for the reason that he was assigned by the master to perform a duty owed by the master to plaintiff, its servant, namely, keeping the elevator or the place where plaintiff was required to perform his duty in a reasonable safe condition. Weldon v. Railway, 93 M'o. App. 674; Zellers v. Water and Light Co., 92 Mo. App. 119; Jones v. Railway, 178 Mo-. 544.

— Now. John W. Halliburton, Special Judge. (1) Instead of showing tbe condition, and the usual and ordinary method of handling such situations in the mines of the district, the witness was permitted to tell what he would have done, and to say that the way, in his opinion, to mine is to. timber and put up stringpoles and wood over it, and keep everything from dropping on the men.

<p>1. ACCIDENT INSURANCE: Policy: Repugnancy: Construction. Where two, clauses of an instrument are so totally repugnant that they cannot stand together, the first should he received and the latter rejected.</p> <p>2. -: -: -: -: Limitation. Where a clause of a contract merely limits its scope without destroying it the restriction must he considered as incorporated into and forming a part of the clause which it limits, and the intention is to he gleaned from the two clauses read together.</p> <p>3. -: -:-: -:-. A policy of accident insurance indemnified a mining company against loss from common law or statutory liability; a subsequent clause provided that the policy did “not cover loss, etc., from injuries occasioned by reason of the failure of the assured to observe any statute affecting the safety of persons.” ■ A miner was injured and recovered damages because of the failure of the company to send down props as required by the statute. Held, there was no repugnancy since the indemnity against statutory liability is entirely consistent with the agreement to keep certain statutes from its operation.</p> <p>3. -: Non-Liability: Waiver: Prejudice: Presumption. Under a certain policy the insurer was not liable for injuries resulting from the violation of the statute. Such an injury occurred. Thereupon the insurer took charge of the resulting litigation in compliance with the policy and conducted the same to final judgment on appeal. It then refused to pay the judgment because not within the provisions of the policy. Held, it had waived its defense by assuming charge of the litigation and so acknowledging its liability; and whether the assured was in fact prejudiced or not by such conduct is immaterial, since it will be so presumed.</p> <p>4. -: Violation of Statute: Negligence: Injury: Public Policy. A contract to protect another against a willful violation of law is contra horns mores and therefore void; but contracts of indemnity against the consequences of possible, but unintended, future negligent acts, are binding; and there seems to be no distinction in principle between negligent omission of statutory and common law.</p>

— Hon. James H. Slover, Judge. (1) The defendant’s demurrer to the petition should have been overruled. Goodland v. Bank, 74 Mo. App. 372; Lysaght v. Association, 55 Mo. App. 538; North Hampton County’s Appeal, 6 Casey 305. (2) Only the existing creditors of an insolvent corporation could take advantage of such a contract. Shields v.' Hobart, 172 M'o. 514; Tube Works v. Machine Co., 118 Mo. 365; Hall v. Goodnight, 138 Mo. 576.

— Eon. William B. Teasdale, Judge. (1) The court erred in refusing the instructions, in the nature of a demurrer to the evidence, offered at the close of plaintiff’s case, and again at the close of all the evidence. Smart v. Kansas City, 91 Mo. App. 592; Bartley v. Eailway, 148 Mo. 140; Smith v. Bank, 99 Mass. 612; Shields v. Eailway, 87 Mo. App. 646; Neville v. Bridge Co., 158 Mo. 318.

— No». Hugh Dabbs, Judge. (1) The court should have given the declaration in nature of demurrer to the evidence. Defandant is not liable for the reasonable value of plaintiff’s services because it made no express agreement to pay therefor. The law does not imply a contract on its part to pay therefor. Meisenbach v. Cooperage Co., 45 Mo. App. 232; Jesserich v. Walruff, 51 Mo. App. 270; Eankin v. Beale, 68 Mo. App. 325; Hasler v. Lumber Co., 101 Mo. App. 138.

— Hon. Henry L McCune, Judge. (1) The court erred in setting aside tbe nonsuit of plaintiff and reinstating this cause on tbe docket: (a) Tbe nonsuit was voluntary, and it was an abandonment of the atcion. Lewis v. Mining Co., 97 S. W. 938; McClure v. Campbell, 148 Mo. 112; Bank v. Grey, 146 Mo. 568; Carter v. O’Neil, 102 Mo. App. 391.

— No». James N. Slover, Judge. (1) Court erred in giving peremptory instruction asked by defendant, and in taking the case from the jury. Moore v. Transit Co., 194 Mo. 1. c. 9; Patton v. Bragg, 113 Mo. 1. c. 601; Bender v. Railroad, 137 Mo. 240. (2) Was the horse hitched? The evidence shows that he was and in a reasonably safe and prudent manner. (1) The action of the court in giving the instruction asked by the defendant at the close of plaintiff’s evidence was proper.

— Now. Jackson L. Smith, Special Judge. (1) If the insured possesses the equitable title to the premises, the fact that the naked.legal title which he had a right to compel to be transferred, will not amount to a breach of the condition that his title is not other than sole and unconditional ownership. Lingenfelter v. Insurance Co., 19 Mo.

— Now. John G. Parle, Judge. (1) There is no allegation of special damage, without which no action lies, if the publication is not libelous per se. Herman v. Bradstreet, 19 Mo. App. 221; Salvetelli v. Ghio, 9 Mo. App. 158; Walker v. Best, 95 N. Y. Supp. 153; Foot v. Brown, 8 Johns, 63; Walker v. Tribune Co., 29 Fed. 829; Pollard v. Lyon, 91 U. S. 237. (2) In this case the question of libel or no is one for the court, and can be raised upon demurrer.

<p>1. NEGLIGENCE: Falling Wall: Demurrer to Evidence. The evidence relating to reasonable safety of a brick wall which fell in a storm is reviewed and the casé is held properly sent to the jury.</p> <p>2. -: -: Jury: Instruction. It is for the jury to judge whether the conduct of the owner of a wall that fell in a storm was that of an ordinarily prudent man in like circumstances, and an instruction telling the jury that if the city officials and the owner’s architect advised him the wall was safe and he so believed, he was not negligent, is improper.</p> <p>3. -: -: Owner’s Right: Instruction. The owner of land has a right to maintain a wall thereon and is not the insurer of its safety and is not liable for its falling provided it was safe, or that he took every means to ascertain its safety that an ordinarily prudent man would have taken in similar circumstances, and so believed it would be safe; and an instruction set out in the opinion is condemned.</p> <p>4. JURY: Laws of 1905: Repeal: Instruction. The jury law of 1905, applicable to certain cities, only repeals the general statute governing juries and jurymen in those instances where the two are inconsistent, and section 3763, Revised Statutes 1899, providing that no exception can be taken to a juror after he is sworn to try the cause, is not in conflict with the act of 1905.</p> <p>5. -: -: -: -: Waiver. The policy of the statute is to promote fairness and impartiality in the trial, and the statutory requirements tend to subserve that purpose, but the absence of such requirements in a juror is not necessarily inconsistent with an impartial trial, and these requisites a party may . waive.</p>

— Eon. Chesley A. Mosman, Judge. (!) The court erred in refusing to instruct the jury to find for the defendant as requested by defendant. Duncan v. Railroad, 46 Mo. App. 198; Skipton y. Railroad, 82 Mo. App. 143.

— Now. Alonzo D. Burnes, Judge. (1) The statement before justices of the peace must advise the opposite party of the nature of the claim and be sufficiently specific to be a bar to other action. Butts v. Phelps, 79 Mo. 302; Hill v. Company, 90 Mo. 104. (2) We submit this petition in case at bar is a mere collocation of words, and a bare conclusion and not a statement of facts, and a new trial should be granted because there is no sufficient statement as required by statute.

— Hon. John P. Butler, Judge. (1) An information cannot be amended so as to charge a different offense from that charged in the original information. State v. Jenkins, 92 Mo. App. 439; State v. Emberton, 45 Mo. App. 56. (2) The disturbance of the peace of a neighborhood, and the disturbance of the peace of an individual, are separate and distinct offenses. R. S. 1899, sec. 2159; State v. Hughes, 82 Mo. 86.

— Eon. James T. Neville, Judge. (1) The contract with the defendant company was in writing with plaintiff alone, and he is the trustee of an express trust under the provisions of section 541, Revised Statutes 1899. Ferris v. Thaw, 72 Mo. 446; Dodson v. Lomax, 115 Mo. 555; Harrigan v. Welch, 49 Mo. App. 496; Pomeroy’s Code Rem. (3 Ed.), secs. 171, 173; Nelson v. Hirsch & Son’s Co., 102 Mo. App. 512; Jones v. Railroad, 178 Mo. 528; Albany, etc., Co. v. Lunbery, 121 U. S. 481.

Francois Circuit Court. — Hon. Chas. A. Killian, Judge. (1) Counsel for appellant recognizes that the doctrine of caveat emptor has always applied to judicial sales in this,State, and in the very nature of things there could be no warranty of title in such sales; but appellant insists that under a long line of decisions the doctrine does not inure to the benefit of the defendant in the execution, and consequently does not apply in this case.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. (1) Plaintiff’s land does not touch tbe river at any point. He bas no right whatever as a riparian proprietor; no right to any easement concerning the river. Schlag v. Jones, 131 Pa. St. 62; Lyon v. Fishmongers, 1 App. Cas. (L. R.) 662; Bank v. Asylum (Ky.), 56 S. W. 525.

Walter B. Douglas, Judge. (1) The note in suit is a negotiable promissory note, payable during banking hours, at a bank in East St. Louis, Illinois, on December 17, 1902, unconditionally, for value received. The “value received” was an option agreement under wbicb* Lumaghi bound, himself to acquire title to the land described in the agreement for three months, subject to Abt’s election to accept title, and convey the land after such election and acceptance.

<p>LOCAL OPTION: Prescription. An information charging a physician with issuing a prescription in violation of section 3050, Revised Statutes of 1899, which failed to allege that the liquor procured on the prescription was “to be used otherwise than for medicinal purposes” was defective. An allegation that the prescription was issued for the unlawful purpose of procuring the druggist to violate the local option law, was not sufficient to charge the offense defined by the statute.</p>

— Hon. Jas. T. Ne-ville, Judge. An affidavit made by the president, secretary, or other proper officer or agent of the corporation, when the corporation is a party to the suit, is in legal contemplation, an affidavit made by the corporation. Trans. Co. v. Baldwin, 14 N. J. L. 440; Ex parte Sargeant, 17 Yt. 426; 10 Cyclopedia of Law and Procedure, 904.

— Eon. Jas. T. Neville, Judge. (1) Damages should always he compensatory only, unless the act committed was 'done wilfully, wantonly, or attended by some other circumstance or circumstances of gross negligence. Franz v. Hilterbrand, 45 Mo. 121; Brown v. Plank Road Co., 89 Mo. 152.

Louis City Circuit Court. — Eon. Dml. Q. Taylor, Judge. (1) “Reconsignment orders” made new contract for through shipment. After the original contract of carriage ended by arrival in St. Louis, defendant accepted orders to ship cars to another point; these orders and acceptance constituted new contracts of carriage beyond its own line, and bound defendant to deliver accordingly within reasonable time. R. S. 1899, sec. 1082; Klass Com. Co. v. Wabash Railway, 80 Mo.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) A purchaser of a house, under1 an execution issued on a mechanic’s lieii judgment, acquires a title to the house, superior to that of a purchaser under a foreclosure of a deed of trust placed on the land before the erecting of the building was commenced. Investment Co. v. Haseltine, 53 Mo. App. 308.. And can maintain replevin therefor. Seidel v. Cornwell, 166 Mo. 51.

Francois Circuit Court. — Son. Chas. A. Killian, Judge. (1) Plaintiffs’ action was one for the destruction of immature crops; the court erred in admitting testimony as to the value of a matured crop. The measure of damages is the value of the crops at the time they were destroyed. Hosli v. Yokel, 57 M'o. App. 622; 3 Joyce on Damages, sec. 2126; 1 Sutherland on Damages, 103; Gresham v. Taylor, 51 Ala. 505; Irvin v. Holde, 176 Pa.

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

— Eon. Henry C. Riley, Judge. (1) No witnesses made any claim at New Madrid, before tbe judge on April 16,1904, nor was any witness summoned to appear there, but the testimony shows tha,t they were taken down there by the Cape Girardeau & Thebes Bridge Terminal Railway Company, to be used if necessary. They were, therefore, entitled to no fees, and the court erred in allowing the respondent anything for its expenses incurred in that behalf. R. S. 1899, sec. 8260.

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. Where the principal puts an agent forward as a general agent, though in a particular line, or places him in a position where others are justified in the belief that his powers are general, the restrictions that may be imposed upon him privately will be immaterial except as between him and the principal. Samuel v. Bar-tee, 53 Mo. App. 587; Woolen Mills v. W. B. Myers & Co., 43 Mo.

— Eon. John T. Moore, Judge. (1) “No rightful jurisdiction of a party can he acquired by fraud or misrepresentation, and if the person so proceeded against, brings it properly to the attention of the court assuming jurisdiction over him, as the defendant did in this case, the suit must be dismissed after proof or admission of the facts.” Byler v. Jones, 79 Mo. 263; Bank v. Knox, 47 Mo. 334; Graham v. Ringo, 67 Mo. 324; Christian v. Williams, 111 Mo. 429; Roberts v. Stone, 99…

<p>REAL ESTATE BROKER: Commission. A real estate broker having a farm of another for sale took a prospective buyer to see the farm and put him in negotiation with the owner; the owner diverted the purchaser to another agent who concluded the trade between the owner and the purchaser. Hold, the first agent was entitled to his commission for the sale, unless he abandoned the negotiation on account of failing to agree with the purchaser before a trade was made by the second agent.</p>

<p>1. CRIMINAL PRACTICE: Information: Felonious Assault. An information charging the defendant with a felonious assault is sufficient if it follows the language of the statute and where an information for felonious assault charged the defendant with committing the assault with a loaded pistol by pointing such pistol in a threatening manner at the person assaulted, this was sufficient and it was not necessary to state that the person as- . saulted was within such distance as to be endangered or that the pistol was pointed at a vital part.</p> <p>2. -- — : — ------: Conviction of a Lesser Crime Than the One Charged. Under section 2369, Revised Statutes 1899, where an information charged the defendant with committing a felonious assault, he could be convicted of common assault.</p> <p>3. -: -: -: Instruction. In the trial of defendant charged with felonious assault by pointing a loaded pistol at the person assaulted, it was proper for the court to instruct that if the assault was committed without intent to kill or do great bodily harm, the defendant could be convicted of common assault.</p> <p>4. -: -: Verdict. Where defendant was charged with felonious assault in two counts both referring, to the same act, and, under either count, he could have been convicted of common assault, a verdict finding him guilty of common assault is not erroneous for failing to state under which count he was convicted.</p>

Original Proceeding, Petition for Habeas Corpus. (1) It is the. law in this State that when a commissioner or- a notary makes an illegal adjournment his power to take depositions ceases. In re Green, 86 Mo. App. 228. (2) The continuance on May 9 not appearing by the record of Mr. M'cQuillin assuming to be a commissioner, to be necessary owing to any facts in the case was yo-id. Bracken v. March, 4 Mo. 74.

— Hon. F. O. Johnson, Judge. . (1) An injury resulting from an intentional and voluntary act, done in the usual and ordinary manner, and in the doing of which nothing unforseen, unexpected or unusual occurs, such injury cannot he said to have been effected through external, violent and accidental means, although the injury itself was unusual and unexpected. Fedar v. Assn., 107 Iowa 538, 78 N. W. 252, 43 L. E. A. 693; McCarthy v. Insurance Co., 8 Biss.

Louis City Circuit Court. — Eon. Dmiel D. Fisher, Judge. The marriage contract between Mr. and Mrs. Kin-sky was no bar to Mr. Kinsky’s claiming and taking possession of the personal effects which the court found he did take possession of; under the provisions of sections 105, 106, 107 and 111, Revised Statutes 1899, he had a right to these personal effects of his wife upon her death, and the marriage contract did not bar that right.

— Eon. Charles D. Sleivart, Judge. (1) Tbe gift was as complete as it could have been made and nothing remained wbicb could have been done by tbe parties to complete same. Both tbe donor and t the donee of tbe checks bad done everything in their power to make tbe gift complete. 8 Am. and Eng. Ency. of Law (1 Ed.), 1321. Bromley v. Brunton, L. R. 6 Eq. ■ 275; 14 Am. and Eng. Ency. of Law (2 Ed.), 1063; Rolls v. Pierce, 5 Ch. D. 730.

Louis County Circuit Court. — Hon. Jobn 'W. McElbinney, Judge. (1) The court on a motion to quash will look beyond the execution, to the judgment, and not put the party to a proceeding to vacate the judgment. Ex parte James, 59 M'o. 280; Lecontour v. Peters, 57 Mo. App. 449.

— Hem. Henry O. Riley, Judge. The court erred, in instructing the jury as set out in plaintiff’s instruction numbered 1. The above instruction is erroneous, whether this suit be viewed as an action upon contract or an action upon quantum 'meruit.

Louis City Circuit Court. — Hon. Darnel D. Fisher, Judge. (1) The court erred in refusing to give the peremptory instruction offered by appellant at the close of all the evidence, because there was no evidence to sustain any of the charges of negligence set up in respondent’s petition.

By the Habeas Corpus Act. It appears from petition and return that petitioner was convicted without a hearing. The petition alleges that petitioner wTas denied a hearing and the judgment fails to recite a hearing. Every valid judgment recites a hearing and the validity of the commitment depends entirely upon the judgment. There can he no commitment without a valid judgment. Ex parte Arnold, 128 Mo. 256; Ex parte O’Brien, 127 Mo. 477; People v. Oassels, 5 Hill, 164.

Charles Circuit Court. — -No». N. W. Johnson, Judge. (1) The demurrer to the evidence should have been ' sustained. The amended petition is founded upon section 2864, R. S. 1899, and fails to state a cause of action under that statute. The remedy given by that statute is the recovery'of a penalty of five thousand dob lars — no more, no less. This action is to recover forty-five hundred dollars. Section 2864 is a penal statute.

— Hon. Jas. D. Barnett, Judge. (1) It has been repeatedly held in this State that any negotiations leading up to the execution of a written contract, or anything which passes in the way of communication or talk between the parties thereto before the execution of such contract, is presumed to have entered into the written contract, and evidence of such negotiations or conversations preceding the execution of the contract is not admissible.

Louis City Circuit Court. — Hon. Moses N. Sale,- Judge. (1) The phrase delivery “at your option,” addressed to the buyer, has a well understood meaning in commercial usage, to the effect that the buyer has a right to call for delivery at any time within the contract period. Webster’s Diet., Option, 4; Kent v. Miltenberger, 13 Mo. App. 506; Williams v. Tiedeman, 6 Mo. App. 272; White v. Barber, 123 U. S. 419.

— Hon. Henry O. Timmonds, Judge. (1) Plaintiff was not an adjoining owner within the meaning or protection of the statute requiring railroads to fence their right of way through enclosed lands and cannot, therefore, recover. Ferris v. Railway, 30 Mo. App. 122; Geiser v. Railroad, 61 Mb. App. 459; Railroad v. Hollingsworth (Tex. Civ. App.), 68 S. W. 724; Railroad v. Huffman (Tex. Civ. App.), 71 S. W. 779.

— Eon. William B. Teasdale, Judge. (1) The shipment was not a through shipment to Preacher, Virginia, but to St. Louis only. McCann v. Eddy, 183 Mo. 68; Nenno v. Railway, 105 Mo. App. 549. (2) No authority was shown in the station agent to execute a bill of lading for a through shipment to Preacher, Virginia. Smith v. Railway, 112 M'o. App. 615; Sewing Machine Co. v. Railway, 70 Mo. 678; Minter Bros. v. Railway, 56 Mo. App. 282; Faulkner v. Railway, 99 Mo. App. 424.

iift.ii Circuit Court. — Bon. Ghesley A. Mosmuw.; Judge. (1) Every person must ascertain at his peril the title of the person with whom he is contracting and for whom he is furnishing material and labor, and in order to charge the fee it is necessary that there be a contract. between the owner of the fee and some person, who, under the mechanic’s lien law is called an original contractor, that the improvements are to be made and unless there is such a contract the lien must…

— Eon. James E. Blover, Judge. (1) The court erred in the admission in evidence of Ordinance No. 918 of Kansas City, Missouri. It was a question of law for the court as to which of the two ordinances was in force. Ruschenberg y. Railroad, 161 Mo. 70. Whether or not an ordinance is “reasonable” is a question of law. Neier y. Railway, 12 Mo. App. 25; White v. Railway, 44 Mo. App. 540; Zumault v. Railway, 71 Mo. App. 670.

— Son. Levin W. Shafer, Judge. (1) The court erred in refusing a new trial, for the reason the verdict is against the evidence and the weight of the evidence. (2) The agreement by the administrator to pay the debt of his intestate was within the fourth section of the Statute of Frauds and could only be proved by writing. Walther v. Merrill, 6 Mo. App. 370; Bambrick v. Bambrick, 157 Mo. 423; Nunn v. Carroll, 83 Mo. App. 135.

— Hon. Louis Hoffman, Judge. (1) The court erred in refusing to give the peremptory instruction asked by defendants at the close of the evidence, directing the jury to find for the defendants for the reason that under the undisputed evidence plaintiffs were not entitled to recover. (2) The plaintiff in its evidence claims the property by virtue of a chattel mortgage given by Mrs. McConnell to- it to secure $179.80.

<p>Appeal from Bates Circuit Court. — Son. Charles A. Denton, Judge.</p>

— Hon. John C. Park, Judge. (1) The court erred in giving the peremptory instruction to find for the plaintiff. Smith v. Woodmen of the World, 179 Mo. 119. (2) The court erred in excluding that part of section 112 of the constitution and laws of 1902, pleaded in defendant’s answer, relating to the suspension of members for the non-payment of assessments and dues. Beadle v. Insurance Co., 3 Hill (N. Y.) 161; Bacon on Benefit and Life Insurance, sec. 353.

— Eon. James E. Slover, Judge. (1) The court erred in giving defendant’s instruction numbered 3. It is a comment upon tbe testimony and singles out a certain fact and tells tbe jury that fact alone will not entitle plaintiff to recover. (2) Instruction numbered 4 given for defendant is erroneous for tbe same reasons.

— Hon. William H. Martin, Judge. (1) The description in the mortgage is wholly insufficient. The bank has no claim under such mortgage. The description is not only vague, but according to the evidence is absolutely incorrect. Young v. Bank, 97 Mo. App. 576; Chandler v. West, 87 Mo. App. 681.

— Hon. Argus done, Judge.- (1) Section 1261, Revised Statutes 1899, was intended to apply only to telegraph or telephone lines owned and operated by corporations, and not to those owned or operated by natural persons. (2) The use of general and compr hensive words in an act will not be held to enlarge the application so as to make it apply to natural persons if the context of the act shows that it was intended to apply only to corporations. State v. Kelsey, 89 Mo. 628.

— Hon. William B. Teasdale, Judge. Tbe court skould have directed a verdict for defendant because (1) there was no evidence that defendant was in any respect negligent with regard to plaintiff’s freight, and (2) the undisputed testimony showed that the proximate cause of damage to the eggs was an act of God — the unprecedented flood of 1903. Moffatt Company v. Railway Co., 113 Mo. App. 549; Woolsey Co. v. Railroad, 113 Mo. App. 651; Lamar Mfg. Co. v. Railroad, 117 Mo.

Circuit Court. — Eon. Alonso D. Burnes, Judge. (1) The motions to quash the execution and set aside the judgment constitute a collateral attack and come too late at a term subsequent to the rendition of judgment. Gerhart v. Brady, 72 Mo. App. 138; M'eyer v. Miller, 55 Mo. App. 343; Wise v. Loring, 54 Mo. App. 262; Head v. Randolph, 83 Mo. App. 284; Hathaway v. Railroad, 94 Mo. App. 348. (2) Defendants should have appealed if judgment is erroneous only.

— Eon. John G-. Park, Judge. . The court helow erred in giving instructions 2P. and 3P, asked by plaintiff because such instructions did not inform the jury that defendant was entitled to a reasonable opportunity after knowledge of the defect and before the injury to plaintiff in which to repair the sidewalk.' Eichardson v. M’arceline, 73 Mo. App. 360; Maus v. Springfield, 101 Mo. 693; Badgley v. St. Louis, 149 Mo. 122; Ball v. Neosho, 109 Mo. App, 683.

— Son. George W. WannemaJcer, Judge. (1) If tested by definitions and tbe construction of the language employed by tbe statute them tbe term “any business office of tbe company” is fully met by the facts of this case. 1 Words & Phrases, 915; 5 Am. and Eng. Ency. of Law (2 Ed.), 71, 72, 76; 1 Am. and Eng. Ency. of Law (2 Ed.), 908; Trustees of Columbia College (N. Y.), 47 How. Prac. 275; Martin y. State, 59 Ala. 36; Goddard v. Chaffee, 2 Allen (Mass.) —; 22 Am. and Eng.

— Eon. Joshua W. Alexander, Judge. (1) The allegation in plaintiff’s petition of an employment “of W. P. Cook and G. B. Kerr to sell or exchange the same for him,” does not amount to an allegation of the employment of said persons as a firm. Bank v. C-amphell, 34 Mo. App. 48. There is no allegation in the petition that W. P. Cook and G. B. Kerr were partners at the time the alleged contract was entered into. Therefore, proof of a partnership did not sustain petition.

— Hon. William H. Martin, Judge. (1) The petition is fatally defective in that it fails to charge that defendant knew or by the exercise of ordinary care might have known of the defective condition of the brake complained of. Ancient, indeed, but still alive and active are the authorities, to this effect. Mc-Dermott v. Railroad, 30 Mo. 115; Current v. Railroad, 86 Mo. 63; Obert v. Dunn, 140 Mo. 485; Corbett v. Railroad, 26 M'o. App. 628; Herbert v. Shoe Co., 90 Mo.

— Eon. William O. Ellison, Judge. (1) Defendant’s motion to dismiss the action should have been sustained. In forcible entry and detainer, tbe complaint must be made in writing, signed and sworn to by the party aggrieved, his agent or attorney. Rankin v. Fairly, 29 Mo. App. 587; Brownfield v. Thompson, 96 Mo. App. 340. (2) The statute of forcible entry and detainer, has no application to a case, such as made by this record, and defendant’s demurrer should have been sustained.

— Hon. Hat. M. Shelton, Judge. (1) The instrument and contract sued upon and made the basis of this foreclosure proceeding is in effect an equitable mortgage and amply sufficient as such to charge the land described therein with a lien as against all the defendants and as such should have been admitted in evidence. Stark v. Anderson, 104 Mo.

— Hon. William O. Ellison, Judge. (1) The court erred in excluding the evidence offered by plaintiff tending to prove his cause of action based on the breaehy known propensities of said bull. R. S. 1899, sec. 3852; Manley v. M'fg. Co., 103 Mo. App. 139; Johnson v. Kalin, 97 Mo. App. 628; Cunningham v. Dickerson, 104 Mo. App. 412;. Calmes v. Haight & Co., 85 Mo. App. 362; State ex rel. v. Delaney, 122 Mo.

— Eon. Eat. M. Shelton, Judge. (1) The court erred in directing a verdict for defendant Harle. His interest in the leasehold was clearly liable to plaintiff’s lien under section 4206 Eevised Statutes as amended in 1901, p. 206. Dougherty v. Churchill, 114 Mo.

— Hon. Alexander H. Waller, Judge. Defendant’s demurrer to the evidence should have been sustained because plaintiff failed to offer in evidence any Jien statement, thus failing to show a compliance with section 4207, Revised Statutes 1899, which is a condition precedent to the existence of a lien. The plaintiff identified a document by the clerk as the lien filed, and later offered and read in evidence his account.

— Hon. Joshua W. Alexander, Judge. Injunction will not lie to restrain the sale of land where plaintiff is in possession of the land and where his legal record title is superior to any title that can be acquired by a purchaser at the sale, and where plaintiff has a complete and adequate remedy at law against any claims that may be asserted by such purchaser. Wilcox v. Walker, 94 Mo. 89; Haeussler v. Thomas, 4 Mo.

— Eon. James E. Blover, Judge. A public service corporation, like a gas company, possessing a grant and franchise from the public, the grant thus resting upon a public and reciprocal relation imposes upon the company the legal obligation to serve all members of the public impartially, and to permit all such to use gas who offer to pay, and abide the reasonable rules, etc. State ex rel. v. Consumers’ Gas Co., 55 L. R. A. 248; Rushville v. Gas Company, 15 L. R. A. 321; State…

— Hon. Qeorge W. Warmemaker, Judge. (1) The court erred in permitting plaintiff to testify as to the price received for his cattle and their weight from the account of sales rendered to him by his commission men in Chicago.

— Eon. John G. Park, Judge. The court erred in giving instruction numbered 8P for plaintiff, on the measure of damages. The evidence ts clear and conclusive that plaintiff was attended only two weeks by a doctor, and that at the time of the trial she had fully and completely recovered. There being no evidence on which to base this instruction, it was error to have given it. Batten v. Transit Co., 102 Mo.

— Hon. Henri/ L. McCuhe, Judge. (1) The court erred in the giving of plaintiff’s instruction numbered 1. It predicates a recovery upon the act of the conductor in telling her to go back over the track, when it was not shown by the evidence that he had any authority to make any such suggestion, or that it was within the scope of his employment or his duties; but, on the contrary, it was shown that he did not.

— Hon. Chesley A. Mosman, Judge. (1) The demurrer offered by defendant at the close of the case and after all the evidence was introduced should have been sustained for the reason that the notice served upon the mayor of the city failed to allege the correct date of the injury received. For the reason that there was a variance in the evidence introdxxced as to the time of the injury received and the time stated in the notice.

— Eon. Alonzo D. Burnes, Judge. (1) It will be seen that there are three grounds for setting aside a judgment: Fraud, mistake or accident. In this case there is no ground. But even if there is fraud, mistake or accident the judgment will not be set aside unless there has been positive injustice done and there has been no laches on part of party attacking judgment.

<p>1. NEGLIGENCE: Railroads: Ordinance: Crossing: Contributory Negligence. Plaintiff riding a poiiy when twenty-five feet from the track observed an approaching train about a quarter of a mile distant, but did not notice its rapid speed. He proceeded to cross the track, and on reaching the far (rail his horse’s foot was caught between the rail and the crossing plank, which the company had negligently allowed to get out of repair. As he was attempting to get off, the train approaching at several times the ordinance speed, struck, killing the horse and injuring the plaintiff. Held,</p> <p>(1) The case was properly submitted to the jury on the question of the negligence as to the speed and the condition of the crossing.</p> <p>(2) That the plaintiff’s action did not constitute such contributory negligence as to take the case from the jury and is distinguished from cases where one attempts to run a race with an approaching train for the crossing. Cases considered.</p> <p>2. —i-: -: Horse’s Foot Caught in Crossing: Evidence. WRere plaintiff’s evidence tended to show that his horse’s' foot was caught in a railroad crossing and the defendant’s that it was impossible for the foot to have been caught, evidence that another horse got his foot fastened in the same place, shortly before, is admissible; at any rate such evidence was harmless in this case.</p> <p>3. PERSONAL INJURY: Evidence: Physician. A physician’s opinion as to what caused plaintiff’s injury, is held under the course of testimony in this case to have been harmless, since it could not have influenced the jury.</p>

— Hon. George W. Wwinemaker, Judge. (1) The Batterton deed to Samuel Winnegar is the common source of title. Samuel Winnegar’s interest was attempted to he conveyed by Wade, sheriff, for delinquent taxes to E. D. Harvey. This deed is absolutely void. Guffey v. O’Reiley, 88 Mo. 424; R. S. 1899, sec. 9304; Peak v. Laughlin, 49 Mo. 162; Simonson v. Dolan, 114 Mo. 176; Whelen v. Weaver, 93 M'o. 430; Graton v. Land & Lumber Co., 189 Mo. 338.

— Hon. George W. Wannemaher, Judge. (1) The portion of the answer asked to be stricken out stated no defense and no part of a defense, to the cause of action stated in plaintiff’s petition, and is wholly irrelevant and redundant. Poindexter v. McDowell, 110 Mo. App. 235; Harrington v. Com. Co., 107 Mo. App. 423; Bank v. Reichert, 101 Mo. App. 253; Homes v. Farris, 97 Mo. App. 309; Trustees of Christian University v. Hoffman, 95 Mo. App. 492; Bank v. Fessler, 89 Mo.

— Hon. Hugh Dabbs, Judge. (1) Defendant was negligent in providing drills that would not bore holes large enough to properly receive the explosives which plaintiff was required to use, and plaintiff did not assume the risk arising from that negligence although he may have been cognizant of the increase of danger resulting from the undersize of the drills.

— Hon. George W. Wannemaker, Judge. (1) Plaintiff Steekman and his man, McDonald, are joint owners by their own agreement. Myers v. Field, 37 Mo. 439. (2) Since Lengle v. Smith, 48 M'o. 276, is sound law, this case must be reversed, without remanding. The plaintiff has mistaken his remedy. The Supreme Court of Missouri does not regard Lengle v. Smith, supra, as having been overruled.

— Hon. Ghesley A. M osman, Judge. (1) There can be no estoppel as against the property-owner for sitting by and seeing a street improved under void ordinances, when he malees no special complaint to the contractor. Yerdin v. St. Louis, 131 Mo. 98; Perldnson v. Hoolan, 182 Mo. 189.

— Hon. Cha/rles A. 'Denton, Judge. (1) The petition in this case does not even charge general negligence, bnt pleads a specific act of negligence, and by reason thereof the plaintiff must stand or fall in respect to this allegation. Grisamore v. Railway, 118 Mo. App. 390; Hamilton v. Railway, 114 Mo. App. 508; Galm y. Railway, 113 Mo. App. 593; Mueller y. Shoe Co., 109 Mo. App. 515; Breeden y. C. M'. Co., 103 Mo. App. 179; Pryor v. Railway, 85 Mo.

— Son. John G. Park, Judge. (1) Gustof Herzberg was a resident of the State of Kansas at the time of his death. It is a settled rule of law, not requiring at this day the citation of authorities to maintain it, that the administration of all goods of an intestate, wherever situated or found, is to be made according to the law of the land of the testator’s domicile. Spreading & Keeton v. Pipkin, 15 Mo. 183.

— Eon. Alexander E. Waller, Judge. (1) The court erred in overruling the motion to make the petition more certain. It was the plaintiff’s and not the defendant’s fault that the petition was defective, . and the defendant was prompt in filing its motion and was entitled to have it passed upon according to its merits at any time before the trial. (2) The court also erred in admitting any evidence under the petition.

— Son. Chesley A. Mosmcrn, Judge. (1) Appellant’s sole burden in the first instance, is to show the error of the court in sustaining the motion for new trial upon the ground stated on the record, leaving to respondent to demonstrate that the court should have granted a new trial upon one or more of the grounds stated in the motion.

— Hon. Samuel Davis, Judge. (1) The written advertisement and notice for bids of respondent city, the written and signed bid of appellant and the resolutions passed by the city council and spread upon its record, approved and signed by the mayor and attested by the city clerk; awarding the contract to appellant constituted a contract in writing, signed by the parties. Water Co. v. Aurora, 129 Mo. 578; California v. Telephone Co., 112 Mo.

— Hon. Hugh Dabbs, Judge. (1) Information in a criminal case, when not based upon the affidavit of a person having knowledge of the commission of a crime (Laws 1901, p. 189), are required by the statute to be verified. R. S. 1899, see. 2477. (2) The first and second counts in the information in this case were not in any legal sense verified by the oath of the prosecuting attorney. Each count charged an independent statutory offense, each inconsistent with the other.

<p>SELLING LIQUOR: Minor: Dramshop Keeper: Bar Tender: Evidence. Section 3009, Revised Statutes 1889, relates merely to dramshop keepers, hut section 2179 'relates to any person who sells intoxicating liquor to a minor without the consent of the parent; and evidence that the seller was a bartender of a licensed dramshop keeper is irrelevant, since the seller is guilty whether he knows the law or not.</p>