Volume 127 — Missouri Reports

Louis City Circuit Court. — Hon. Jacob ■ Klein, Judge. The petition in this case was a bill of interpleader and set forth that the plaintiff was clerk of the St. Louis court of criminal correction; that Henry F. Harrington died in February, 1892, and that Edward H. Harrington was duly appointed his administrator; that during the years 1885, 1886 and 1887 the former was duly qualified sheriff of the city of St. Louis, and that during the year 1888, from January 1 to December…

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Tlie court erred in sustaining plaintiff’s motion for a new trial, there being no error in giving and refusing instructions. (2) Plaintiff’s instruction number 4 was properly refused because it was too general in its terms. (3) Plaintiff’s instruction number 1 was properly modified by the court.

<p>Deed: consideration: resulting trust: extrinsic evidence. Where a- deed recites a consideration, extrinsic evidence is, in the absence of fraud or mistake, inadmissible to disprove such consideration and to establish a resulting trust in the grantor.</p>

Louis City Circuit Court. — Hon. J. E. Withrow, Judge. (1) The general ground of demurrer being followed by special grounds, only the latter can be considered. Boone on Code Pleading, sec. 44; Reveille v. Case, 9 'Mo. 502.

(1) In Gratiot v. Railroad, 116 Mo. 466, Judge Burgess, speaking for the court, said: “In considering the instruction in the nature of a demurrer to the evidence, every reasonable intendment in favor of plaintiff to be drawn from tbe evidence offered by bim must be indulged, and the evidence introduced in his behalf regarded as absolutely true.” Miller v. Bail-road, 90 Mo. 394; Kellogg v. Railroad, 26 Wis. 223; Higgins v. Dewey,. 107 Mass. 494; Memphis, etc., v. Whitfield,…

Louis City Circuit Court. — Hon. D. D.. Eisher, Judge. The statement of facts by the referee, mentioned', in the opinion of the court in banc, is as follows: It appears that in and prior to 1864, G-eorge Knapp, Nathaniel Paschall and John Knapp were equal co-partners under the firm name of G-eorge Knapp &■ Company, engaged in the business of newspaper, book and job printing, and well known as publishers of the Missouri Republican in St. Louis; that in April of that year…

<p>1. Practice: continuance. Where a party to a suit announces ready for trial and the jury is selected and accepted, it is too late for him to ask for a change of venue because of objection to the inhabitants of the county.</p> <p>2. Electric Light Company: employee: contributory negligence. Where an experienced employee of an electric light company neglected to use rubber gloves furnished by the company and brought his hands in contact with wires which were obviously not insulated and lost his life the company is not liable for his death.</p>

Appeal' from St. Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The power of the court, sitting as a court of equity, is to construe the will, not to make a new will. Marshall v. Radley, 50 N. J. Eq. 547; Academy v. Adams, 65 N. H. 225; 1 Perry on Trusts, sec. 460. (2) A court of equity can no more authorize an act to be done which is in excess of the powers conferred by the will than can the trustees do such act.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Plaintiff, as an abutting owner, has an easement (an incident of his title) of ingress and egress, and a right of way over the alley; depriving him thereof is a taking of private property, for private use, without due compensation.

— Hon. R. E. Roy, Judge. (1) The court erred in refusing to permit defendant to impeach the witness Marts by examining him as to his relations with his wife before her marriage. Muller v. Association, 5 Mo. App. 401. (2) The court erred in refusing defendant’s instruction marked “refused instruction number 2.” A city is bound to keep only so much of its sidewalk in good condition and repair as is necessary to render it reasonably safe for travel.

<p>1. Husband and Wife: land acquired during coverture: presumption. Laud acquired during coverture the title to which is taken in’the name of the husband and wife jointly, is presumed, in the absence of evidence to the contrary, to have been purchased with the means of the husband.</p> <p>2. -: voluntary conveyance: presumption. A voluntary conveyance by a debtor to his wife is, as against prior creditors, presumptively fraudulent.</p> <p>3. -: -: -: burden of proof. To render a voluntary conveyance by a husband to Ms wife valid as against prior creditors, the burden of proof is on the grantee to show that the debtor retained sufficient property to pay his debts.</p> <p>4. -: -: fraudulent CONVEYANCES. The evidence in this ease examined and held to show that a conveyance by a husband through another to himself and wife jointly was fraudulent as to his creditors.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. L. B. Yalliant, Judge.</p> <p>(1) The court misdirected the jury as to the meaning of the term “satisfactory.” Osborne v. Francis, 38 W. Ya. 312; Singerly v. Thayer,- 108 Pa. St. 291; Boiler Works v. Schnaber, 155 Pa. St. 394; Zaleski v. Clark, 44 Conn. 218; Brown v. Foster, 113 Mass. 136; Allen v. Company, 14 S. Rep. 362; Tiedeman on Sales, sec. 213. (2) The above quoted part of said first instruction is bad, for the further reason that it assumes as a fact that there was an understanding as to the terms of the proposed lease between plaintiff and defendants at the time the written agreement of October 20 was made. Stone v. Hunt, 94 Mo. 475; Comer v. Taylor, 82 Mo. 341; Wilkerson v. Thompsonr 82 Mo. 317; Heckv. Bitchey, 66 Mo. 114; jRailroad v. Griffin, 68 111. 499; Durham v. Goochoin, 54 111. 469. (3) The same' error is repeated further down in the same instruction. (4) This instruction is bad, because it restricts the jury to a consideration of the terms of the lease, in determining whether it was satisfactory, and ignores the important element in a lease of the character and responsibility of the lessee.</p> <p>(1) The law governing this cause was properly declared by the circuit court. It is well settled, by a long series of adjudications, in this state, that a real estate agent or broker performs his duty, and is entitled to his commissions, when he produces a purchaser who is ready, willing, and able to buy on the terms authorized by the principal. And this is true, although the trade falls through, if the failure is due to the fault of the principal. Gelatt v. Ridge, 117 Mo. 553; Carpenter v. Rynders, 52 Mo'. 278; Hayden v. Grillo, 35 Mo. App. 647; Bell v. Kaiser, 50 Mo. 150; Tyler v. Parr, 52 Mo. 249; Timbermm v. Craddock, 70 Mo. 638; Zeidler v. Walker, 41 Mo. App. 118; Love v. Owens, 31 Mo. App. 501. (2) The instructions given by the court covered the entire case and every issue in it. It was, therefore, unnecessary to give all the instructions asked on both sides, although some of them doubtless enunciated correct principles of law. A failure to give such instructions, when others which were given cover the ground, is not error. McQuillin’s Dig., p. 263, sec. 107. (3) The court did not err in defining the meaning of the term “satisfactory’’ lease. In matters of utility the refusal to accept can not be capricious. Rapalje on Real Est. Brokers, pp. 183,184; Sloan v. Hayden, 110 Mass. 141; Pope Iron Co. v. Best, 14 Mo. Ápp. 502; Braunstein v. Ins. Co., 1 Best & Smith, 782; Lord v. Stevens, 1 Y. & C. 222; Lawson on Contracts, sec. 409; Cutler v. Cutler, 98 N. Y. 628; 21 Am. and Eng. Encyclopedia of Law, 714; Hart v. Hoffman, 44 How. Pr. 168.</p>

— Hon. C. C. Bland, Judge. (1) It was necessary as a condition precedent to a right to a decree of the court, giving the title to the property in question to the complainants, that they prove that they were the only heirs at law of Joel and Vianna Hinds. (2) The party seeking the aid of a court of equity should show distinctly and unambiguously all the. facts necessary to entitle him to that aid.

Louis City Circuit Court. — Hon. D. D„ Eisher, Judge. . (1) Item, $566.63, taxes paid C. H. Turner & Company, should be allowed, as there is no exception thereto. (2) Item, costs paid in Basset case, $194.75,. should be allowed, as there is no exception thereto.. (3) Item, fee paid Klein & Fisse should be allowed, as there is no exception thereto. (4) Item, fee paid G-. H. Shields, $500, should be allowed. Evidence is. that Madill authorized it and no contradiction thereto.

<p>1. Note: indorsement: authority of agent. Whether one acted within his authority in indorsing the note for his nonresident principal so as to comply with Revised Louisiana Civil Code, section 2997, requiring power to indorse a note to be express and special, considered and held, that he acted within his authority.</p> <p>2. Evidence: general objections. The general objection of the incompeteney of the evidence is sufficient only when such evidence is inadmissible for any purpose.</p> <p>3. -: -: notary: certificate of protest. The objection that a notary’s certificate of protest is not verified by his oath, as required by Revised Statutes, 1889, section 4880, should be specifically made in the trial court; otherwise its admission will not be reviewed on appeal.</p> <p>4. Note: indorsement: notice of protest. Where it appears that the indorser resided in a certain city when the note was protested, and the notary’s certificate of protest showed that notice of protest, addressed to the indorser at such city, was mailed, and there was no evidence that he did not receive notice, the fact that he did receive it could be properly inferred. .</p> <p>5. -: -: -1 — . Where the indorser signed his name on the note with the addition of the words "and company,” and there was no such firm, and a notice of protest directed to such firm at the city in which the indorser resided was mailed, and no other person of the indorser’s name lived there, and there was no evidence that the indorser did not receive the notice, a finding that he did receive it was justifiable.</p> <p>6. Pleading: defective petition: aider by verdict. If a material allegation he not expressly averred in the petition, but the same is necessarily implied from what is stated, the defect is cured by the verdict, the presumption being that plaintiff proved the fact imperfectly alleged, the existence of which was necessary to a recovery.</p>

— Hon. D. W. Shackleford, Judge. (1) Tbe pleadings and evidence in this case show that plaintiff has no standing in a court of equity. Moore v. Wingate, 53 Mo. 398; Mullen v. Heivitt, 103 Mo. 631; Humphreys v. Co., 98 Mo. 548. (2) It is clearly shown by the evidence that defendant James 8. Guthrey was the head of a family and a housekeeper, and that he was entitled to the premises in question as a homestead.

Louis City Circuit Court. — Hon. L. B. Yallí ant, Judge. (1) The plaintiff must prove facts which establish the negligence of the defendant as the proximate cause-of his injuries. 16 Am. and Eng. Encyclopedia of Law, page 453.

— Hon. James E. G-reen, Judge. (1) Under the practice in this state, equity cases are practically triable de novo in the appellate court. Blount v. Spratt, 113 Mo. 54; Benne v. Schnecko, 100 Mo. 258; McElroy v. Maxwell, 101 Mo. 308. (2) When a court of equity once acquires jurisdiction of a case, if authorized to act at all in the premises, it will, to avoid a multiplicity of suits, do adequate and complete justice between the parties.

Certified from Kansas City Court of Appeals. (1) Where a court has jurisdiction of the parties, injunction will lie against them to prevent the annulment of the laws of its own state by the action of any one of the parties outside of the state. Railroad v. Sharritt, 43 Kan. 375; Cole v. Cumningham, 133 U. S. 107; Needham v. Thayer, 147 Mass. 536; 3 Am. and Eng. Encyclopedia of Law, p. 523, and note; 8 Am. and Eng. Encyclopedia of Law, pp. 1254, 1255.

Quo Warranto. (1) The election held in 1892 was a valid election to fill the vacancy caused by the resignation of Granzhorn. State v. Comrades, 45 Mo. 45; State ex rel. v. Manning, 84 Mo. 661; Morgan v. Com’rs, 24 Kan. 71; State ex rel-. v. Foster, 36 Kan. 504.

. Appeal from St. Louis City Circuit Court. — Hon. D. D. Eisher, Judge. (1) The court erred in refusing to permit defendant to strike out of its answer the erroneous admission as to possession contained in such answer. Carr v. Moss, 87 Mo. 447; Waverly Timber Co. v. Cooperage Co., 112 Mo. 383.

— Hon. H. M. Ramey, Judge. Equitable proceeding instituted at the September term, 1888, by Charles Lins and wife against Theresa Lenhardt, the widow of John Lenhardt, who died March 1, 1888, a little over seventy years old. Mrs. Lins or “Katy” is one of the children of John Lenhardt by his first marriage. Maggie, Marie, Josie and Frank are children of John and Theresa by a second marriage. The children of the second marriage, as well as the widow, were made parties defendant.

— Hon. J. W. Wofford, Judge. (1) Instruction number 1 asked by the state may be carried as abstract law, but the evidence did not support it as given. There was no evidence that defendant took anything from Irvin, either by the 'means described in the instruction or otherwise; the instruction was therefore not warranted as given. Givens v. Van Studdiforcl, 4 Mo.

— Hon. J. H. Slover, Judge. Ejectment for a strip of ground occupied by the-defendant company for its tracks and right of. way through the land of plaintiff’s testator, the action having been brought by him.

— Hon. E. J. Broaddus, Judge. (1) In an action in chancery, it is the duty of the court to look into the evidence and determine from it the rights and liabilities of the parties as to all the matters in litigation. Dale v. Hogan, 39 Mo. App. 646; Suddoth v. Bryan, 39 Mo. App. 653. (2) Facts essential to a right of recovery must be proved by testimony having at least a preponderating influence. Moore v. Bailroad, 28 Mo. App. 622.

(1) Before the making of the lease in suit, defendant was bound to plaintiff with a different tenant by a precisely similar lease for the payment of the rent of the same premises for the same time covered by the lease in suit. The lease in suit was assigned to defendant and he bound himself in writing to pay the rent. Defendant thus became bound by express contract and by operation of law. The consideration thus disclosed was valuable, and hence sufficient.

— Hon. W. M. Robinson, Judge. (1) There is absolutely no evidence of negligence on the part of defendant, and the court properly so instructs the jury. Cotton v. Wood, 8 0. B. (N. S.) 568; Bothwell v. Railroad, 59 Iowa, 192; Railroad v. State, 71 Md. 590; Paris v. Company, 15 Wall. 524; Wharton on Negligence, sec. 421; Railroad v. Schertle, 97 Pa. St. 450; Baulec v. Railroad, 59 N. Y. 356.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) That defendant’s ignorance, arising from the ■alleged indefinite and uncertain character of the petition, rendered him unable to have any idea as to what ■evidence he will be called upon to meet, is no reason why the pleading should be made more definite and ■certain by amendment.

Neville, Judge. -Hon. Jas. T. (1) The petition declares upon an express contract made by and between the plaintiff and the defendants, and upon this theory must recover. It can'not recover, on the theory of implied contract raised by law, because the defendant corporation had no legal existence. If plaintiffs intended to rely upon the latter theory, the facts should have been pleaded.

Hon. Alexander Ross, Judge. (1) The tax bill shows on its face that there is no description of the land for the years 1875 and 1876 describing the land as “Erl. sec. 17, etc,” when follows the perfect description of the “S. W. frl. —a patent ambiguity that renders the assessment for these years void. State to use, etc., v. Railroad, 114 Mo. 1; Cooley on Taxation [2 Ed.], p. 404. (2) In no event can plaintiff maintain this suit.

— Hon. W. M. Robinson, Judge. (1) The courts .in construing a deed must ascertain the intention of the parties, and this is done by considering the instrument in its entirety. Davis v. Hess, 103 Mo. 31. (2) It is the settled law that the call for quantity may be resorted to for the purpose of making that certain, which otherwise would be uncertain, and especially is this true where the land, as in this case, is described by sectional subdivisions.

Louis County Circuit Court. — Hon. Rudolph Hiezel, Judge. (1) The law presumes that the plaintiff was in the ■exercise of ordinary care, and this presumption is not ■overcome by the mere fact of injury. -Buesching v. Gaslight Co., 73 Mo. 219. (2) The mere fact that an appliance proves to be defective and the servant is injured, •does not make out as between master and servant, for the latter, a prima facie case of negligence on the part of the master.

Louis City Circuit Cowrt. — Hon, Jacob Klein, Judge, (1) This court will reverse the action of the court below in refusing to set aside a default when the result is a manifest injustice. Tucker v. Ins. Co., 63 Mo. 588; Judah v. Hogan, 67 Mo. 252. (2) It is of no consequence that the stipulation extending the time of pleading was not in writing, the same being admitted as clearly proved. People v. Stephens, 52 N. Y. 310; Montgomery v. Filis, 6 How. Pr. 326; Benhamv.

— Hon. John A. Hockaday, Judge. (1) First. The motion in arrest should have been sustained. The Sturgeon Savings Bank could not maintain the interplea and was not a proper party thereto. If the deed of trust was valid, the trustee had the legal title to the property involved and was alone authorized to maintain the action. Meyers v. Bale, 17 Mo. App. 204; Parker v. Bodes, 79 Mo. 88; Pace v. Pierce, 49 Mo. 393; Lacy v. Gibony, 36 Mo. 320. Second.

<p>1. Deed of Trust: Sunday: statute. A deed of trust executed on Sunday is not for that reason invalid under Revised Statutes, 1889, section 3852, prohibiting the performance of work and labor on that day.</p> <p>2. -: fraudulent Conveyance. A conveyance by an insolvent to an administrator to secure to the estate a disputed debt on a secret agreement that a part of the proceeds shall be turned over to the grantor by the administrator, who was also a distributee of the estate, is invalid as against other creditors of the grantor.</p>

— Hon. Rudolph Hiezel, Judge. (1) The respondent having failed to file his exceptions to the report of the commissioners, “on or before the third day of the term” of court at which they were filed, lost his right of appeal; and, having no jurisdiction, the court should have sustained the plaintiff county’s motion to dismiss the appeal. This point was absolutely and essentially a jurisdictional fact, and may be raised at any time. See statutes of 1889, section 7799.

— Hon. J. H. Sloveb, Judge. (1) It will not be claimed by respondents that the charter of Kansas City adopted in 1889 authorized any redemption after sale under execution for benefits arising from establishing or changing the grade of a street. Art. 8, Charter Kansas City, section 9, on page 79. (2) The amendments to the charter of 1889, adopted February 27, 1892, so far as applicable to article 8, amended sections 1 and 2, and section 5, and no more.

<p>Appeal from Jackson Circuit Court. — Hon. J. H. Slover, Judge.</p>

— Hon. J. H. Sloven,, Judge. (1) Where money is paid through a mistake of fact, or even by a mistake of law mixed with a mistake of fact, the one so paying can recover. Snell v. Ins. Co., 98 U. S. 92; Swift Co. v. TI. S., Ill U. S. 30; Colton v. Lewis, 119 Ind. 183; Panic v. Upton, 87 N. Y. 327; Powell v. Board, 46 Wis. 213; Corrigan v. Tiernay, 100 Mo. 280; Kelly v. Sola/ri, 9 Mees & W. 54; Louisiana v. Wood, 102 U. S. 298.

— Hon. James T. Neville, Judge. (1) The defendant Hahn, the secretary of the Current River Lumber Company, by taking the legal title to the property in controversy in his own name, became a trustee ex maleficio for the company and its creditors. Wells, Fargo & Co. v. Robinson, 13 Cal. 133; Bartlett v. Brew, 57 N. Y. 587.

— Hon. Richard Field, Judge. (1) The instructions given by the court at the instance of the plaintiff are illegal and improper. They ignore all evidence tending to prove negligence of the plaintiff, and virtually direct the jury to find for the plaintiff, regardless of whether or not he was guilty of negligence which was the proximate cause of his injury.

Charles Circuit Court. (1) The drainage tax sought to be collected constitutes a lien enforceable like general tax liens. B. S. 1889, secs. 6207, 6208 and 6209, etseq.-, State, etc., v. Donaldson, 28 Mo. App. 191. (2) The back tax bill is made out in the name of W. F. Bobbins, who formerly owned the land; the petition, however, alleges that the defendant, Hy Angert, the respondent, is now the owner of said land.

Hon. Maurice Cramer, Judge. (1) The land in question was legally sold by the commissioner at private sale. Prior v. Scott, 87 Mo. 303; Poolv. Brown, 98 Mo. 675. (2) The objection that the paper offered in evidence was not sealed is not well taken. Gh S. 1865, p. 444, sec 4; Pease v. Lawson, 33 Mo. 35; Gh S. 1865, p. 398, sec. 5; E. S. 1889, sec. 2388. A seal consisting of a piece of paper attached by mucilage at the end of the signature has been held sufficient.

— Hon. Richaed Field, Judge. (1) The court erred in permitting witnesses to ■repeat what defendant Thompson had said to them, «specially witness John M. Johnson, for reasons: First. That Thompson had parted with all interest he «ver had in the notes and deeds of trust before- his statements testified to were made and he could not -then impress the title of his assignee as fraudulent. He was not in possession. Second.

Habeas Corpus. (1) No appeal or writ of error would lie. Habeas ■corpus is the only remedy and the proper one. R. S. 1889, secs. 3263, 5378. The process (commitment) was issued under circumstances not allowed by law; for where the alleged contemptuous conduct occurs beyond the immediate view and presence of the court, the law requires (sec. 3263, supra) citation before commitment.

<p> Certified from Kansas City Court of Appeals. </p> <p>(1) Guardians of insane persons are trustees, and are governed by the law pertaining to trustees. Michael v. Locke, 80 Mo. loe. cit. 551; State to use v. Jones, 89 Mo. loe. cit. 478. (2) Trust funds in the hands of trustees are to be managed and disposed of by them for the equal benefit of all creditors. State ex rel. v. Brockman, 39 Mo. App. 131, and cases cited. (3) A power given to a trustee to pay such creditors, and prefer such claims as he pleased, would render the trust void. 2 Perry on Trusts [2 Ed.], sec. 600. (4) The statute makes it the duty of the guardian of an insane person to pay all debts due from his ward, so far as his estate and effects will extend. R. S. 1889, sec. 5530; Concmt v. Kendal, 21 Pick. (Mass.) 36-41.</p> <p>(1) Before the institution of plaintiff’s suit, defendant had paid for his ward, and his creditors, $475.92 more than he had received, and he is not, therefore, liable to plaintiff in this, or any other action. And the fact that in paying his ward’s debts he did not pay them pro rata, does not render him liable. Frost v. Bedford, 54 Mo. App. 362; State to use v. Jones, 89 Mo. 470; R. S. 1889, chap. 86. (2) Our statutes are an absolute bar to plaintiff’s recovery in this action against defendant. “In all actions commenced against such insane person, the process shall be served upon his guardian, and, on judgment against such insane person or his guardian, as such, the execution shall be against his property only.” B. S. 1889, sec. 5544. (3) At common law, the administrator of a deceased person, was not compelled to pay the debts of the deceased person pro rata. It is only by virtue of the statutes that he is compelled to do so now in this state. Woerner on Administration, sec. 376. (4) And under the statutes of this state, as they existed prior to 1883, for settling insolvent partnership estates, the surviving partner was not required to pay pro rata, but was permitted to pay in full such as he saw fit. Crow v. Weidner, 36 Mo. App. 412; Collier v. Cairns, 6 Mo. App. 190. In order to provide for payment pro rata, the statute has since been amended. B. 8. 1889, sec. 64. (5) Defendant’s plea of res adjudicata was fully made out. Plaintiff brought suit against E. D. Erost, the insane person, and the defendant in his original demand, ashing judgment against both of them. Upon trial had, judgment was entered in favor of the defendant, which stands unreversed and unappealed from, and is, therefore, a bar to this action. The fact that plaintiff obtained judgment against E. D. Frost, the insane person, does not give him a new right of action against defendant on that judgment.</p>

<p>Appellate Practice: bill op exceptions. Where the record shows that the bill o£ exceptions was filed at a term subsequent to that at which the appeal was taken, no permission being asked or given, of record, for such filing, such bill will not be considered upon appeal, though the opposing counsel do not challenge its regularity.</p>

— Hon. J. C. Lamson, Judge. On November 7, 1891, plaintiffs brought ejectment for the southeast quarter of the southeast quarter of section 27, township 22, range 28. They are the children and heirs at law of John M. Lillard. The tract in litigation is part of one as set forth in the subjoined plat: NORTH. James M. Lilliard is the common source of title, and the former owner of the whole land described in the plat.

— Hon. J. H. Slover, Judge. The evidence that Squier refused to bind himself in writing, but verbally agreed with defendants, before the execution of the written guaranty, to stand his proportion of the loss, was inadmissible, and the plaintiff is entitled here to the judgment which he should have been given below. The rule that parol ■evidence can not vary the terms of a written contract is 'well settled, and has recently been considered at large and enforced by this court.

<p>1. Master and Servant: wrongful discharge: measure of damages. In an action by an employee for wrongful discharge by the master from his service, an instruction on the measure of damages is not erroneous which permits plaintiff to recover for the whole contract period, less his earnings from other sources, until the time of the trial and his prospective earnings to the end of the contract period.</p> <p>2. Practice : instructions. An instruction is not erroneous because it assumes a fact not controverted by the pleadings.</p>

— Hon. D. P. Stratton, Judge. (1) The evidence shows that all just claims accruing at the inquest were paid and no further sum should he exacted from the county. (2) The coroner, or justice of the peace acting for him, is not authorized to continue his inquest indefinitely.

— Hon. D. W. Shackleford, Judge. (1) The finding and judgment of the court should have been for the plaintiff. The mere entry on waste and uncultivated and unimproved lands under a survey, or a conveyance or other claim of title, and occasional acts of trespass extending over the statutory period, though coupled with the payment of taxes, are not such acts of possession as will deprive the true owner of his title.

— Hon. Joseph Cravens, Judge.. ' Where one is sued for his road poll tax, the defense-that he was not an able-bodied man can not be raised on the trial, unless he produces a certificate to that effect from the county court. Revised Statutes, 1889, section 7815. As the defendant in this case did not have the-certificate of exemption from the county court, the judgment of the lower court should be reversed. The judgment of the lower court should be affirmed because: First.

Charles Circuit Court. Action for damages. The substantial portion of the petition is as follows: “That, heretofore, to wit, in the month of-, 1887, she was engaged by Erwin Spraul, then husband ■of defendant, but since deceased, as a cook at his residence, and that she continued in her said employment for said Spraul until about the first day of June, 1889; that while she was thus engaged, she was under the direction and control of defendant, the wife and agent of said…

<p>Appeal from St. Louis City Circuit Court. — Hon. L. B. Valliant, Judge.</p> <p>(1). Fraud and undue influence are distinct matters. 1 Bigelow on Fraud, p. 571; Beach on Wills, sec. 107; Davis v. Calvert, 5 Grill & John. 269; Stewart v. Elliott, 2 Mackay, 307; Terry v. Buffington, 11 Gra. 337; In re Hesse’s will, 31 Am. St. Rep. 665; Smith v. Dubois, 78 Gla. 413; Greenwood v. Cline, 7 Ore. 17; Dietrich v. Dietrich, 5 Serg. & R. 323. (2) A will, the offspring of deception, can not stand anymore than the offspring of constraint. Schouler on Wills, sec. 230; Kerr on Fraud, 299; Tyler v. Gardner, 35 N. Y. 559; Milton Budlong’s will, 126 N. Y. 423; Davis v. Dean, 66 Wis. 100; Greenwood v. Cline, 7 Ore. 17; Davis v. Calvert, 5 Grill & John. 269; Beaubean v. Cicotte, 12 Mich. 461; Haynes v. Hayden, 95 Mich. 332; Porter v. Throop, 47 Mich. 313. (3) Where a fiduciary relation exists between a donor and the beneficiary, a presumption arises that undue influence has been acquired and exercised; such presumption being, however, one of fact, and may be rebutted and overcome. This rule obtains both as to deeds and wills. The decisions in this state, upon this subject, and to that effect, are familiar to the court and need only to be cited. Garvin v, Williams, 44 Mo. 465; s. c., 46 Mo. 206; Harvey v. Sullens, 46 Mo. 147; s. c., 56 Mo. 372; Street v. Goss, 62 Mo. 226; Ford v. Hennessy, 70 Mo. 580; Mueller v. St. Louis Hospital Ass’n, 73 Mo. 242; Bridwell v. Sivank, 84 Mo. 455; Gay v. Gillilan, 92 Mo. 250; Carl v. Gabel, 120 Mo. 283. The finding of the trial court n a will contest is not conclusive on the supreme court. Kaarev. Co., 19 N. Y. 789; see Hamilton v. Armstrong, 120 Mo. 597; Whitelaiv v. Simms, 19 S. E. Eep. 113; Chappel v. Trent, 19 S. E. Eep. 314; Tresevant v. Baines, 19 S. W. Eep. 577; State v. Primm, 98 Mo. 368.</p> <p>(1) A will contest, so far as the review on appeal is concerned, is an action at law, and the finding of facts will not be reviewed. Eddy v. Park, 31 Mo. 513; Harris v. Hayes, 53 Mo. 90; Young v. Bidenbaugh, 67 Mo. 574; Appleby v. Brock, 76 Mo. 314. (2) This cause was tried below on contestant’s own theory of the law. If any error was committed, it was in favor of appellants and against respondents, in the declarations of law given on both issues. • First. Instruction number 8, in form on the issue of undue influence. Carl v. Goebel, 25 S. W. Eep. 214. And also in requiring “clear and convincing proof” to repel the alleged presumption. Gay v. Gillilan, 92 Mo. 258. Second. Instruction number 3, in applying an erroneous test of a disposing mind. Couch v. Gentry, 113 Mo. 248. Third. None of the instructions were warranted by the testimony. (3) There is no merit in the specific assignments of error, as to rulings of trial court. In fact the record is notable in the extraordinary and unprecedented range permitted to contestants in intro-during remote and irrelevant testimony. Ketchwn v* Stearns, 8 Mo. App. 70; 76 Mo. 396; McFaddin v. Catron, 25 S. W. Rep. 506. (4) The contention of appellants in this case is nothing but an attempt to-reopen the finding on the facts of the circuit court rendered on their own theory of the law. (See authorities, supra, 1.)</p>

<p>1. Equity: jurisdiction: will. Courts of equity have, in this state, no jurisdiction to set aside a will on the ground of fraud.</p> <p>2. -: -: -. While courts of law apply equitable principles in the determination of will contests, their jurisdiction is still that of courts of law, and their procedure is according to the course of the latter courts.</p> <p>3. Will: trust: appellate practice. A declaration of trust anda subsequent will making the same disposition of the property were assailed on the ground of undue influence and the want of mental capacity on the part of the testatrix. A judgment sustaining the will was affirmed on appeal. Held, that a decree sustaining the trust should also be affirmed, as a-reversal would be nugatory.</p>

— Hon. J. H. Slover, Judge. (1) Plaintiffs were permitted to recover upon an alleged agreement on which, they had- not sued, and on which no action could be maintained by them. (2) No agreement between the parties was ever consummated. It was to have been reduced to writing and signed by the parties, which was never done. Nothing was ever done in pursuance of any contract or agreement between the parties. (3) There was no contract.

— Hon. E. M. Hughes, Judge. (1) The court erred in admitting evidence of the value of the leasehold property; it was irrelevant. (2) Defendant’s first instruction is misleading, contradictory and not supported by the evidence; it absolutely took from the jury plaintiff’s theory of the case. BirtwMstle v. Woodward, 95 Mo. 113; Brownfield v. Ins. Co., 26 Mo. App. 399.

— Hon. D. P. Steatton, Judge. (1) A contract at the common law is an agreement, for a sufficient consideration to do, or not to do, some-particular thing. 1 Parsons on Contracts, sec. 6. The contract is said to be complete when the minds of the-contracting parties meet; when a. proposition is made-by one and accepted by the other of the contracting-parties. Wilson v. Board, 63 Mo. 137; Langstrauss v. Ins. Co., 48 Mo. 201.

— Hon. J. H. Slover, Judge. The court erred in overruling appellant’s objection to the introduction of any testimony in this case, because the act of the legislature under and by virtue of which the proceeding is had is unconstitutional and void. First. Because the purposes of said act are not clearly defined in its title, and the act contains more than one object. Const, of Mo., art. 4, sec. 28. Second.

— Hon. A. M. Woodson, Judge. (1) A man of ordinary prudence and care would not have undertaken to get on the engine as Francis did, under the circumstances of this ease, and Francis was guilty of negligence contributing directly to his injury in making the attempt. English v. Railroad. 24 Fed.

— Hon. H. C. O’Bryan, Judge. (1) The instructions given to the jury by the court, (on its own motion) as to the obligation of the defendant to the plaintiff as from a master to his servant are erroneous. It was only the duty of the defendant to-exercise ordinary care to provide cars that were reasonably safe. These instructions made the defendant, the insurer of their safety. Cutridge v. Railroad, 105-Mo. 520; Browning v. Railroad, 27 S. W. Rep. 644;.