Volume 127 — Missouri Appeal Reports

—Hon. Alonzo D. Burnes, Judge. (1) Tbe personal estate is the primary fund out of which debts are to be paid. It is only when there are no.personal assets that real estate can be used for that purpose. R. S. 1899, sec. 139; R. S. 1899, sec. 144; R. S. 1899, see. 146; Lewis v. Carson, 93 Mo. 587; 2 Am. and Eng. Ency. of Law (2 Ed.), p. 830. (2) It is the duty of the administratrix to pay all debts if there is sufficient personalty to do so. R. S. 1899, sec. 184.

Circuit Court.—Eon. Alexander E. Waller, Judge. (1) Under section 1500 of the Revised Statutes of 1889, plaintiff’s cause of action was barred after one year from the maturity of the last of the three taxbills. In this case the work was completed and accepted, by the city on the 15th day of December, 1892, and the first suit was dismissed on September 24, 1897, and the present suit was not instituted until the 17th day of March, 1902.

<p>APPELLATE PRACTICE: Abstract: Amendment: Bill of Exceptions. The filing of a bill of exceptions can only be proved by a record entry. And without leave of court on good cause shown an amendment of an' abstract cannot be made after the time for service expires:</p>

—IIon. Samuel Davis, Judge. (.1) The presumption is that a parent intends that his children shall share equally in his estate. Hence the further presumption that Avhen he gives property to one of his children in his lifetime be intends the same as an advancement to such child with which he is to be charged on final distribution of his estate.

<p>Appeal from Schuyler Circuit Court.—Son. Nat. M. Bhelton, Judge.</p>

—Eon. Henry L. MeCune, Judge. (1) The verdict of the jury shows on its face that it was not based upon the law and the evidence. The trial court ought to have set it aside. (1) The jury gave substantial damages, and therefore this is not as if the jury had given a nominal sum for plaintiff. Dowd v. Air-Brake Co., 132 Mo. 579. The case of Boggess v. Railway, 118 Mo. 328, is, we think, on all fours with the case at bar.

<p>Appeal from Andrew Circuit Court.—Hon. Alonzo D. Burnes, Judge.</p>

—Eon. George W. Wanamaker, Judge. (1) The evidence is insufficient to sustain the judgment. Evidence of the payment of money to another without more does not establish a loan. Dickey v. Dickey, 45 Pac. 228.

—Eon. James E. Blover} Judge. (1) The trial court erred in overruling defendant’s demurrer filed at the close of all the testimony in the case, and in refusing to give the instruction which it asked directing a verdict in its favor. Fogarty v. Transit Co., 180 Mo. 502; Root v. Railway, 195 Mo. 371; 22 Am. & Eng. Enc. Law (2 Ed.), 1378; 1 Jaggard on Torts, p. 102, sec. 34; State to use v. Railway, 45 Md. 41; Beacham v. Proprietor, 68 N. H. 382, 40 At.

—Hon. John P. Butler} Judge. (1) Before plaintiffs would be entitled to recover it devolved upon them to prove that Hopkins & Schrenk were ready and Avilling to perform their contract with the defendant, or that they Avere financially able to respond in damages if they failed to perform their undertaking. Hayden v. Grillo, 26 Mo. App. 289; Hayden v. Grillo, 35 Mo. App. 647; Zeidler v. Walker, 41 Mo. App. 118.

—Hon. Hugh Dabbs, Judge. An award by a jury of one hundred dollars as compensation to a passenger for being carried three miles beyond her destination and for the actual inconvenience, loss of time and labor of returning said three miles is excessive. Such award is so excessive as to show that the jury were actuated by bias, passion and prejudice against defendant, and said verdict is not supported by the evidence, there having been no proof of any actual damage.

—Eon. J. B. Johnson, Judge. ’(1) Mr. Adair signed the note as a surety only. As such surety he is only bound technically and has a right to rely upon being technically released. Higgins v. Harvester Co., 181 M'o. 311.

—Eon. James E. Blover, Judge. The court erred because in respondent’s first instruction tbe court submitted the question of appellant’s negligence and respondent’s freedom from negligence, to the jury without defining in that or any other instruction what constituted negligence. Casey y. Bridge Co., 114 Mo. App. 47; Megrane v. Railway, 183 Mo. 119; Goodwin v. Railroad, 27 Mo. App. 617; Gessley y. Railway, 26 Mo.

—Hon. Henry G. liiiey, Judge. (1) The defendant is not liable in this case because the loss was caused by fire, for which the bill of lading expressly provided that the defendant should not be liable. No negligence of defendant caused the fire or contributed to it. Standard Milling Co. v. Transit Co., 122 Mo. 258; Gashweiler v. Railroad, 83 Mo. 112; Davis v. Railroad, 89 Mo. 340; Witting v. Railroad, 101 Mo. 631; Otis Co. v. Railroad, 112 Mo. 622.

—Eon. David E. Eby, Judge. (1) Defendant Angle was a patient of Dr. Pearson, and therefore Dr. Pearson’s testimony of what he learned of Angle’s condition while treating him professionally was improperly admitted over Angle’s objection. Section 4659, chap. 64, R. S. 1899; Gartside v. Insurance Co., 76 Mo. 446; Thompson v. Ish, 99 Mo. 173; Ex parte Gfeller, 178 Mo. 267; State v. Kennedy, 177 Mo, 129.

---Hem. Henry C. Riley, Judge. (1) It is the place where the animal gets on the track and not the place where it is injured or killed, that determines the liability; and the testimony fixes only one point of the animal’s entry, and that was at the public crossing. Bumpas y. Railroad, 103 Mo. App. 206; Dickinson v. Railroad, 103 Mo. App. 335; Redmond v. Railroad, 104 Mo. App. 555; Kimball y. Railroad, 99 Mo. App. 340; Wier v. Railroad, 48 Mo. 558.

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

<p>1. JUSTICES OF THE PEACE: Filing Instrument Sued On. A statement of an account with a guaranty indorsed on it, was filed before a justice of the peace as the plaintiff's cause of action against the guarantor and afterwards an amended statement was filed. On appeal to the circuit court the original account was transmitted with the justice’s transcript. This was sufficient filing of the instrument sued on under section 3853, Revised Statutes 1899.</p> <p>2. -: Pleading. A pleading filed before a justice of the peace, which apprises the defendant of the nature of the cause for which he is sued, and is sufficiently definite to bar another action for the same subject-matter, is sufficient.</p> <p>3. STATUTE OF FRAUDS: Guaranty: Terms of Contract. In an action against the guarantor of an account, where the account sets forth the items of debit, the dates, the names of the debtor and the creditor, and across the face of the account the defendant wrote “guaranteed” and signed his surname underneath the word, this was a sufficient memorandum of an agreement to pay the debt of another to be without the Statute of Frauds. (1) The signature was sufficient without giving the guarantor’s first name. (2) The undertaking was sufficiently stated although no time of payment was mentioned, the presumption being, in the absence of anything to the contrary, that payment was to be made on delivery.</p> <p>4. : -: Parol Evidence to Vary' Writing. While parol evidence may not be introduced to piece out an insufficient memorandum under the Statute of Frauds, nevertheless parol evidence may be resorted to for the purposes of explaining the circumstances under which the writing was made, such as the situation and relation of the parties and the nature of the indebtedness for which the writing is given.</p> <p>5. GUARANTY: Demand. In an action against a guarantor of an account, where the contract of guaranty is commensurate with the undertaking of the principal, whatever proof will make a case against the principal will make a case against the guarantor; no demand upon the principal is necessary in order to recover against the guarantor.</p>

<p>1. EVIDENCE: Parol Evidence to Vary Written Contract. Parol evidence is inadmissible to contradict or vary the terms of a written contract, but where there is a verbal contract and only a part of it is reduced to writing, parol evidence is admissible to prove the parts not written.</p> <p>' 2: -: -. Where a booh dealer employed a binding company to bind a quantity of the former’s boohs, by a contract which provided that the binding company would carry a blanhet insurance policy to protect its customers from loss by fire, but contained a suggestion that the booh dealer should tahe out other insurance, it was competent to prove by parol testimony that the binding company agreed, in addition, to protect the booh dealer’s property by insurance and that the item of insurance entered into the estimate of compensation paid by the booh dealer.</p> <p>3. PLEADING: Implied Contract: Variance. In an action by a boohbinder for labor performed and material furnished in printing and binding boohs, the defendant filed a counterclaim alleging that its boohs were destroyed by fire while in the plaintiff’s possession, that the plaintiff was carrying on behalf of the defendant a blanhet fire insurance policy to protect the defendant against loss, that plaintiff negligently failed to prove up or make claim for any loss caused by the destruction of the defendant’s property whereby the defendant was damaged. The proof showed that the plaintiff had made an express agreement with the defendant to protect the defendant by insurance. Sold, the counterclaim was upon an implied contract to protect plaintiff’s property, which the defendant breached by negligently failing to perform it, and the plaintiff’s liability depended upon its breach of the contract and not upon whether the breach was negligent or wilful, and there was no variance between the pleading and the proof.</p>

—Hon. James T. Neville, Judge. (1) It is no defense in this case for respondent to say that tbe danger was patent and open to observation. Tbe evidence shows that appellant, on account of bis youth, and inexperience, did not understand and appreciate the nature and extent of the danger. 20 Am. and Eng. Ency. of Law (2 Ed.), 98; Goins y. Railroad, 37 Mo. App. 221; Dowling y. Allen, 74 M'o. 13; Dowling y. Allen, 102 Mo. 213.

—Hon. Jas. D. Barnett, Judge. (1) The allegation that the railroad passed through enclosed fields must he construed to mean that the adjoining field was lawfully enclosed that is by a lawful fence. Bank y. Railway, 109 Mo. App. 165; Seidel y. Railway, 109 M'o. App. 160. Plaintiff is bound by the allegations of his petition. “Parties must stand or fall upon their pleadings.” Ray v. Bowles, 83 Mo. 170; Steinburg v. Insurance Co., 49 Mo. App. 265.

Louis City Circuit Court.—Hon. D. D. Fisher, Judge. (1) It was the duty of the defendant to protect its employees by the adoption and enforcement of a rule requiring the trussing crew to do their work only when the cars stood upon their. truck's, instead of permitting them to do the work of trussing while the cars stood upon trusses.

<p>Appeal from St. Louis City Circuit Court.—Hon. Moses N. Sale} Judge.</p>

—Hon. Charles D. Stewart, Judge. '(1) The testimony of each witness shows that he was not confined to his bed for six months entirely and continuously, but for a considerable portion of the time he was simply confined to the house.

<p>APPELLATE PRACTICE: Abstract of Record: Bill of Exceptions, Where, on an appeal on a short transcript, there was no abstract of the record, and nothing to show a bill of exceptions was filed, and no error appears on the record proper, the judgment will be affiirmed.</p>

<p>Appeal from St. Louis City Circuit Court.—Eon. Jesse A. McDonald, Judge.</p>

Louis City Circuit Court.—Hon. Jesse A. McDonald, Judge. (1) There was no evidence before the jury that appellants had any special interest in the property in question, or any evidence which justified the giving of the instruction. Waddingham v. Hulett, 92 Mo. 535; Gratton Mfg. Co. v. Troll, 69 Mo. App. 480; Colliott v. Amer. Mfg. Co., 71 Mo. App. 170; McAtee v. Valandingham, 75 Mo. App. 53.

Louis City Circuit Court.—Hon. Moses N. Sale, Judge. (1) That this proof malees out a prima-facie case and that the doctrine of res ipsa loquitur applies is well settled by the authorities of this State and other States. Gannon v. Gas Company, 145 Mo. 502; Geismann v. Electric Co., 173 Mo. 654; Overall v. Electric Light Co., 47 S. W. 442; McLaughlin v. Electric Light Co., 100 Ky. 173; Clement v. Electric Light Co., 44 La. Ann. 692, .and other cases cited therein.

—Hon. E. B. McKee, Judge. The court erred in not striking out of all of the evidence of Whiteside and Spangler with reference to holding the transcript for the reason there was no evidence that either party had any authority to make such arrangement in this case. Watson v. Ruce, 46 Mo. App. 546; Peck v. Richey, 66 Mo. 114; Fougus v. Burgess, 71 Mo. 389; Wilson v. Hempstead, 73 Mo. 667.

Louis City Circuit Court.—Now. Jesse A. McDonald, Judge. In the case of Mulford v. Caesar, 53 Mo. App. 263, it is held that the mere fact that one item in an account is disputed, does not prevent the account from becoming an account stated as to all items admitted to be correct.

Louis City Circuit Court. — Eon. Robert M. Foster, Judge. (1) It declared that a prima-facie case was made in favor of the plaintiff and the burden of proof was shifted upon the defendant, if any deck on defendant’s boat broke down, regardless of whether the deck was intended or used for carrying passengers or not, and regardless of whether the crowd of passengers were there rightfully or wrongfully.

Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge. The State has the right of appeal when a motion to qnash an indictment is sustained. R. S. 1899, see. 2709; State y. Burgdoerfer, 107 Mo. 16. Exclusive appellate jurisdiction in misdemeanor cases is vested in the St. Louis Court of Appeals. Sec. 12, art. 6, Constitution; sec. 5, Amendment 1884; State ex rel. v. Rombauer, 101 Mo. 504; State v. Ramsey, 110 Mo. 212; State v. Boatright, 110 Mo. 222.

—Hon. James D. Barnett, Judge. (1) The question involved in this case being one of jurisdiction only, the record shows clearly the question to be decided, as the sheriff’s return is conclusive on both parties, and affidavits filed in support of defendants plea cannot be considered. Hollowell v. Page, 24 Mo. 1; Newcomb v. Railroad, 182 Mo. 704. (2) The return or the amended return of the sheriff, is in our opinion sustained by both this court and the Supreme Court.

Louis City Circuit Court.—Eon. O’Neill Ryan, Judge. (1) The doctrine of election is that devisees cannot hold under and at the same time assert rights contrary to the provisions of a will; and if testator bequeaths property owned by legatee, giving by the same instrument a bequest to legatee, then legatee must elect to take under or against the will.

Louis City Circuit Court.—Hon. Robert, M. Foster, Judge. (1) According to the evidence of respondent, appellant requested him to perform the services, and the law implies a promise to pa,y a reasonable compensation. instruction number one for respondent was therefore proper. Oróle v. Thomas, 19 Mo. 70; Dougherty v. Whitehead, 31 M’o. 255.

Louis City Circuit Court.—Eon. William Z admita, Judge. Statement.—This proceeding is in the nature of a suit in equity to compel the specific performance of a contract by the respondent.

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. The burden is on plaintiff tp prove that the representations were made, that they were false, and that he acted on the faith of them. Anderson v. McPike, 86 Mo. 293; Tinker v. Kier, 195 Mo. 183. “There must be a preponderance of evidence—a preponderance is sufficient.” Marshall v. Insurance Co., 43 Mo. 586; Bothschild v. Insurance Co., 62 Mo. 356; Hitcjeock v. Baughn, 36 Mo.

Louis City Circuit Court.—Eon. Damiel G. Taylor, Judge. (1) The effect of an unqualified setting aside of a judgment, order or decree is to nullify it completely and the party should be restored to the property he has lost by reason thereof. Moore v. Damon, 4 Mo. App. Ill; 3 Cyc. 460. (2) The money sued for was in custodia legis —not subject to execution—and the assignee was compelled to act in obedience to the orders of the court.

<p>Appeal from St. Louis City Circuit Court.—Hon. Walter tí. Douglas, Judge.</p>

Louis City Circuit Court.—Eon. Jas. E. Withrow, Judge. (1) There was no agreement by plaintiff to accept a surrender of the premises, and nothing done by plaintiff or her agent which released defendant from his liability to pay rent until the premises were re-rented April 1st. Livermore v. Eddy, 33 Mo. 547; Buck v. Lewis, 46 Mo. App. 227; Sander v. Holstein Com. Co., 121 Mo. App. 293; Eubank v. Firinell, 118 Mo. App, 535.

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

<p>Appeal from St. Louisi City Circuit Court. — Hon. Wanoioh Hough, Judge.</p>

<p>Appeal from St. Louis City Circuit Court.—Eon. James E. WithrowJudge.</p>

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. Where a new trial is sought on the ground that material evidence has been discovered since the trial, and the nature of this evidence is such that its production at the trial might have produced a different result, that is, if it is doubtful how the new evidence would affect the result, the motion for a new trial should be sustained. Mackin v. Railroad, 45 Mo. App*. 82; Railroad v. Martin, 43 Mo.

Louis City Circuit Court.—Hon. O’Neill By cm, Judge. Where the correctness of an account is in dispute between two parties and the creditor agrees to accept, and does accept, and retains a sum offered by the debtor in full settlement, and executes releases in full of the account, the settlement becomes final and conclusive upon the parties.

—Hon. Henry 0. Riley, Judge. (1) Railroads are not authorized to fence across a public road, whether such road be one de jure or de facto. Gilz y. Railroad, 65 Mo. App'. 445; Lucky v. Railroad, 76 Mo. 639; Roberts y. Railroad, 43 Mo. App. 287; Henderson v. Railroad, 36 Mo. App. 113; Brown v. Railroad, 20 M'o. App. 427; Carter v. Railroad, 69 Mo. App. 295; State y. Walters, 69 Mo. 463. And a private road is a public highway not authorized to be fenced.

Louis City Circuit Court.—Hon, Moses N. Bale, Judge. (1) The suit should have been brought in the name of John B. S. Gallias. Having failed in this the non-suit instruction should have been given. King v. Clark, 7 M’o. 269; State v. Smith, 31 Mo. 120; Tower v. Pauley, 51 Mo. App. 75. (2) Instruction No. 1 was also defective in that it failed to submit the question whether the appellant had knowledge of the use to which the floor was to be put.

Louis City Circuit Court.—Eon. Daniel G-. Taylor, Judge. (1) The Statute of Frauds was enacted in view of the mode and manner in wbicli business affairs are usually conducted and was not intended to obstruct the free course of trade or to afford an excuse for violating commercial integrity. 29 A. and E. Ency. Law (2 Ed.), p. 953; Meyer y. Thompson, 16 Ore. 194.

—Eon. Jos. J. Williams, Judge. There is no testimony showing any collision between the train and the mare, that the mare had ever been on the track or was struck by defendant’s engine and cars and knocked off the track. There was not sufficient testimony to go to the jury. Gilbert v. Railroad, 23 Mo. App. 65; Lindsay v. Railroad, 36 Mo. App. 53; Perkins v. Railroad, 103 Mo. 679; Hesse v. Railroad, 36 Mo.

Louis City Circuit Court.—Eon. Wal- . ter B. Douglas, Judge. (1) Equitable jurisdiction, to restrain unfair competition, though of recent origin, is clearly established; its principles originated in the technical law of trademark, and these principles have been expanded to meet modern commercial conditions. Singer Mfg. Co. v. June Mfg. Co., 363 U. S. 169; Lawrence M'fg. Co. v. Tenn. Mfg.

—Hon. B. Steel Byors, Judge. (1) Relator bases his claim for ouster on section 5911, Revised Statutes 1899, relating to qualifications of aldermen in cities of the fourth class, which provides, “no person shall be an alderman unless he be a resident of the ward from which he is elected.” This section has no been construed by Missouri courts with reference to the question here in issue. In so far as it is derogatory to common law, it will be strictly construed.

Louis City Circuit Court.—Hon. ■ O’Neill Ryan, Judge. (1) The plaintiff declared upon an express contract of hiring for one year, but totally failed to prove any contract. Hayes v. Bunch, 91 Mo. App. 470; Lewis v. Slack, 27 Mo. App. 129; Fenrt v. Ambrose, 34 Mo. App. 366; Boogher v. Insurance Co., 8 Mo. App. 533; Levericlge v. Lipscomb, 36 Mo. App. 630; Finger v. Brewing Co., 13 Mo. App. 311; Evans v. Railway, 24 Mo. App. 114.

—Hon. J. G. Sheppard, Judge. (1) The original petition used the word “stamping” and the court, after the close of plaintiff’s case, permitted plaintiff to amend by striking out the word “stamping” and inserting in lieu thereof the word “kicking,” over the objection of the defendant. This was a material change and should not have been permitted, except upon terms. R. S. 1899, sec. 657.

Louis City Circuit Court.—Hon. Walter B. Douglas, Judge. The circuit court of the city of St. Louis had jurisdiction to make the order of peremptory mandamus to compel officers of appellee Acme Cement Plaster Company to allow appellant, a stockholder to inspect records described in the alternative writ. Swift v. State, 6 Atl. 864, 7 Houst. (Del.) 137; State ex rel. v. Land & Timber Co., 106 La., 633; Guthrie v. Harkness, 199 U. S. 158.

—Eon. J. C. Sheppard, Judge. (1) In the case at bar the plaintiff’s cause of action stated in his petition was “connected with the subject” of the original suit to quiet title, commenced by E. J. Maginn. This was a transaction and the subject-matter of the suit was the title to the land described in ther petition.

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. The burden of proof was on the defendant to establish by a preponderance of the evidence (1) That the landlord agreed at the time of the letting (and if after-wards, that there was a new consideration for the agreement), to make the repairs required; and (2) That the flat was wholly untenantable by reason of the failure to make the repairs. Blake v. Dick, 15 Mont. 236.

Louis City Circuit Court.—Hon. Moses N. Sale, Judge. In an action on an account stated based on a settlement for work and labor performed, the proof of settlement raises by implication the promise on the part of the defendant to pay. Korgel y. Given, 79 Mo. 77; Burger v. Burger, 34 Mo. App. 153; York y. Wester, Fed. Cases No. 18141; Chace y. Trafford, 116 Mass. 529; Kent v. Hig'hleyman, 17 Mo.

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. The fact that the line on which the fronts of all the houses in the tract, including defendants,’ are situated, may be less than twenty-five feet from the street line, furnishes no excuse to defendants to extend their building in front of the others.

<p>APPELLATE PRACTICE: Filing Bill of Exceptions and Motion for New Trial: Record Proper. Where the record proper fails to show the filing of a motion for new trial or bill of exceptions and no error appears on the record proper, there is nothing for the-appellate court to review. The recital of the filing of such motion and bill of exceptions in the bill itself is not sufficient.</p>

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. It was not shown that regulators were set wrongfully on pipes of plaintiff, because prior to 1908 plaintiff owned only the 18-inch lead pipe. And when, after 1903, plaintiff put in iron pipes extending them twelve feet, such extended pipes beyond tbe meters were and became fixtures, part of tbe realty, and were put in with out any agreement reserving to plaintiff ownership over them as chattels.

<p>Appeal from St. Louis City Circuit Court.—Son. Wm. M. Kinsey, Judge.</p>

Original Proceeding by Petition for Writ of Oertiorari to Review Action of Connty Court. County courts are authorized to hold as many adjourned terms as they deem necessary. All business done at such adjourned terms is considered as done at one and the same time. Adjourned terms are part of the regular terms at which order was made. State ex rel. v. County Court, 45 Mo. App. 395; Fannon v. Plummer, 30 Mo.

• Appeal froto St. 'Louis City Circuit Court.—Now. Chas. Claflin Allen, Judge. ' • ‘ (T) Appellant’s complaint as to this instruction is that it authorizes the plaintiff to recover for loss of earnings' in the future when there is no evidence tending to show that he- will sustain any future loss of earnings. This is error. Duffy v.' Transit Co., 104 Mo. App. 235; O’Brien v. Loomis, 43 Mo. App. 29; Dunn v. Railway, 21 Mo. App. 183; Mammerberg v. Railway, 62- .. .Mo.

Original Proceeding by Writ of Prohibition. (1) The New Madrid Circuit Court was without jurisdiction to assume cognizance oyer the subject-matter of the petition for injunction. That petition on its face disclosing that the object of the suit was to restrain defendant Bert Fenn (a) from.further prosecuting a certain suit filed by Bert Fenn against Conran in the St. Louis City Circuit Court; and (b) from filing any other suits against Conran in that circuit.

Louis City Circuit Court.—Hon. Walter B. Douglas, Judge. (1) There was no authority upon the part of Watrous to enter into the contract of December 12, 1902 with the plaintiff. This is shown by the contract itself. It limited Watrous’ employment to the St. Louis store. He was employed as manager of their St. Louis store. Yogel y. St. Louis Museum, Opera & Fine Art Gallery, 8 Mo. App. 587; Atelee y. Fink, 75 Mo. 100.

Louis City Circuit Court.—Hon. BoM. M. Foster, Judge. (1) The happening of an event which, in the court of the customary and proper use of an appliance, when in good condition, would not have happened, is of itself evidence of negligence, under the doctrine of res ipsa loquitur, and calls for an explanation by the defendant, and the mere fact of the relation of master and servant is not sufficient to render this doctrine inapplicable between them.

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. .(1) The court erred in refusing* to give at the close of plaintiff’s evidence, an instruction in the nature of a demurrer to the evidence asked for by the defendant, (a) Because there was no evidence of negligence on the part of defendant. Lee v. Jones, 181 Mo. 299; Holdridge v. Mendenhall (Wis.), 83 N. W. 110; Pletcher v. Traction Go. (Pa.), 39 Atl. 837; McG-lacken v. Traction, Go.

Louis City Circuit Court.—Hon. Bobt. M. Foster, Judge. The owner or keeper of domestic animals, not naturally inclined to commit mischief is not liable for injuries by such animal to another, if the animal be not trespassing in the place when the mischief was done, unless it is affirmatively shown not only that the animal was vicious, but that the owner or keeper had knowledge or notice of the fact. 2 Cyc. 386; 2 A. & E. Enc.

Louis City Circuit Court.—Hon. O’Neill Ryan, Judge. (1) An agent earns Ms commission in procuring a contract of purchase from a purchaser who is ready, able and willing to buy upon the seller’s terms and the owner cannot relieve himself by refusal to consummate the transaction. Real Estate Co. v. Ruhlman, 68 Mo. App. 506; Wright v. Brown, 68 Mo. App. 583; Brown v. Smith, 113 Mo. App. 69; Goodson v. Embleton, 106 Mo. App. 82; Gaty y. Foster, 18 Mo.

<p>1. FRAUDULENT REPRESENTATIONS: Title to Land: Opinion. "Where the purchaser of land, situated in another State, asked the seller about the condition of the title and was assured by the seller that it was good, and the purchaser traded for the land, relying upon that assurance, the further statement by the seller that “if the title was not good he would make it good,” did not relieve him of liability for damages when the title proved to be bad; the statement was not a mere expression of opinion, but a misstatement of' a fact.</p> <p>2. -: -: -: A misrepresentation about the title to land, knowingly made and intended to be relied on, and actually relied on by the purchaser from lack of opportunity to examine for himself or from hisi confidence in the seller is actionable.</p> <p>3. -: -: Measure of Damages: Evidence of Value: Province of Jury. In an action for damages to plaintiff caused by fraudulent representation of defendant regarding the title to land purchased by plaintiff from defendant, where the damages assessed by the jury showed the value they placed upon the land was higher than any witness had sworn to, it was error; the jury could not take their own opinion independent of the testimony; the fact that such land was rated higher in ensuing years was not testimony upon which the value could be fixed in the year of the trade.</p>

Louis City Circuit Court.—Eon. Jesse A. McDonald, Judge. (1) The acts complained of as constituting negligence on the part of defendant were his1 failure to cover, guard, light, fill up or otherwise protect said hole in said walk. Such act constitutes acts of nonfeasance and not acts of misfeasance, and an agent is not liable to a third party for his acts of nonfeasance.

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. (1) The provision of section 2, Acts of Missouri, 1903, p. 161, precludes a recovery herein by respondent unless it has shown written authority from appellant to negotiate the loan. Rothwell v. Gibson, 121 Mo. App. 279; Trust Co. v. Niggeman, 119 Mo. App. 56. (2) Parol evidence is inadmissible to show that it was intended for respondent. The paper must be complete in itself. Carrick v. Muscke, 60 Mo.

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

Louis City Circuit Court.—Hon. D . The case is entirely within the rule laid down in Graham v. Auerswald, 59 Mo. App. 77. If so the case should be reversed on the ground that there is no legal evidence to support the judgment. (1) In law cases, the appellate court will not weigh the evidence, nor reverse on the weight of the evidence. Waddell v. Williams, 50 Mo. 216; Will v. Dryden, 52 Mo. 319; Bray v. Kemp, 113 Mo. 552; State v. Richardson, 117 Mo. 586.

—Eon. Ghesley A. M osman, Judge. (1) The lease read in evidence and under which John Scott held said premises during the years 1908 and 1904 constituted a lien and mortgage lien in favor of the plaintiff on the wheat crop raised on said premises and harvested, gathered and threshed thereon in the summer of 1904. Feller v. McKillip, 100 Mo. App. 660; Crawford v. Benoist, 97 Mo. App. 219; Mead v. Mahoney, 62 Mo. App. 557.

—Hon. Thos J. Bee-horn, Judge. (1) The master is not liable for tbe wilful trespass or assault of the servant unless tbe master directs it (2) The exception to this rule is to tbe effect that tbe master may be held if tbe act falls within the scope of the servant’s employment. But tbe act of tbe servant must not only be done when tbe servant is employed about tbe business, but it must pertain to the duties of tbe employment.

—Hon. George W. Wanamalcer, Judge. (1) The court erred in rejecting the evidence of Dr. Powell. The plaintiff, by bringing this suit, and especially by putting on the stand Drs.

—Eon. Eugh Dabbs, Judge. (1) The court correctly found that the estate held by respondent and her husband in the land in controversy was that of tenants by the entirety. Gibson v. Zimmerman, 12 Mo. 385; Garner v. Jones, 52 Mo. 68; Hall v. Stephens, 65 Mo. 670; Russell v. Russell, 122 Mo. 236; Bain v. Bullock, 129 Mo. 117; Hall v. Stephens, 65 M'o. 670; Wilson v. Frost, 186 Mo. 311.

—Hon. Herman Brumbaclc, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence at the close of plaintiff’s testimony, and again at the close of all… Held: that the negligence of the driver, causing a collision with a street car, was not imputable to the boy. Petersen v. Transit Co., 199 Mo. 881, 97 S. W. 860. This is the well-established law in this State. Becke v. Railroad, 102 Mo. 544; Sluder v. Transit Co., 189 Mo. 107; Profit v. Railroad, 91 Mo.

—Hon. Nat; M. Shelton, Judge. (1) The trial court erred in refusing peremptory instruction to find for defendant. This action is wholly a statutory one, and must stand or fall on proof of the violation by plaintiff in error, of one or more of the statutory provisions regulating the operation of mines in this State, resulting as a proximate result thereof in the death of the defendant’s in error husband.

—Son. James S. S lover, Judge. (1) An agent or broker cannot recover a commission from his principal, when he has received pay from the other party without his principal’s consent. Mechem on Agency (1 Ed.), secs. 455, 972; DeSteiger v. Hollington, 17 M’o. App. 382; Robinson v. Jarvis, 25 Mo. App. 421; Reese v. Garth, 36 Mo. App. 641; Chapman v. Currie, 51 Mo. App. 40; Norman v. Roseman, 59 Mo. App. 682; McClure v. Ullman, 102 Mo.

—Hon. Wüliam B. Teasdale, Judge. (1) The taxbill is void because the sidewalk was not constructed in the place where the ordinance and contract provided it should be constructed, but on private property. Bishop v. Tripp, 15 R. I., 466; Leach v. Cargill, 60 Mo. 316; Neill v. Gates, 152 Mo. 585; Paving Co. v. Ridge, 169 Mo. 376; Kiley v. Oppenheimer, 55 M'o. 374; Rose v. Trestra.il, 62 Mo. App. 352; Me-. Quiddy v. Brannock, 70 Mo.

—Hon. George W. Wanamalcer, Judge. (1) The court erred in overruling defendant’s instruction in the nature of a demurrer to the evidence, especially the one offered at the close of all the evidence. The plaintiff was not the owner or proprietor of the adjoining lands. Section 1105 of the Revised Statutes of 1899 was intended for the benefit of adjoining owners or proprietors and not for the benefit of owners of trespassing animals. Carpenter v. Railroad, 25 Mo.

—Hon. James H. Slover, Judge. (1) A tax book altered by the collector by the addition of an item of taxes, not on it, when the book came into his hands, is void, as to that item and will not protect him in forcing its collection. Higgins v. Ansmus, 77 M'o. 351; Fowler v. St. Joseph, 37 Mo. 237-8.; Kansas City v. Railroad, 81 Mo. 294; Adams v. Lewellen, 117 Mo. App. 319. (2) Collector has no right to proceed under an illegal assessment.

—Hon. Henry M. Ramey, Judge. (1) To reform a written instrument the mistake must he mutual and not unilateral. 1 Story Eq., sec. 151; Gwin v. Waggoner, 98 Mo. 315; Allen v. Carter, 8 Mo. App. 585. (2) The rnle is well settled that the evidence relied on to prove the mistake must be clear and convincing. Dowing v. McHugh, 3 M'o. App. 594; Allen v. Carter, supra; Tesson v. Insurance Co., 40 Mo. 33; Meredith v. Holmes, 105 Mo.

—Hon. William 0. Ellison> Judge. (1) The court’s first reason is that instruction numbered 2 ignores the question whether appellant had abandoned his efforts to sell. In this connection permit us to say such abandonment is not set up as a defense in the answer, but the very opposite in as strong language as counsel for respondent could frame it, and there is not one jot of evidence tending to make a question of abandonment in the case.

—Hon. Herman Brumbach, Judge. (1) Defendant not having appealed, the circuit court bad no jurisdiction to enter judgment in favor of defendant for costs. R. S. 1899, secs. 4059-4062. (2) The court should have affirmed the judgment of the justice or dismissed the appeal.

Samuel Davis, Judge. (1) The city ordinance passed the 81st day of July, 1899, accepted Colyer Bros’, bid for the doing of the work, and upon such date awarded, them the contract, for the doing of such work according to the provisions of the original ordinance.

Polk Circuit Court.—Hon. Argus Cox, Judge. (1) This being a proceeding to condemn land for a private road all costs in the proceedings should have been adjudged against the petitioner and respondent. R. S. 1899, secs. 9462, 9464. And it was error on the face of the record and under the evidence adduced on the hearing of the motion to retax the costs, to tax up any part of said costs to appellants, the landowners.

—Hon. Alewander H. Waller, Judge. (1) If there is any rule for the consideration of statutes well settled in this State, it is this, that they are to operate prospectively or not otherwise, unless the intent that they are to operate in such an unusual way to-wit, retrospectively is manifested on the face of the statute in a manner altogether free from ambiguity.

<p>Appeal from Nodaway Circuit Court.—Eon. William O. Ellison, Judge.</p>

—Hon. William H. Martin, Judge. (1) No error or irregularity of a justice of the peace can affect the judgment rendered by him, but such judgment is valid and binding until reversed on error or by appeal or set aside in a direct and appropriate proceeding for that purpose. It cannot be attacked or vacated in a collateral proceeding.

—Hon. Archelaus M. Woodson, Judge. (1) The so-called notice did. not state the character of the injury. So far as any information in the notice goes, the injury might have been a sprained ankle, the loss of eyesight, damage to wearing apparel, loss of time occasioned by delay, or mental anguish alone. For this reason it was insufficient. Stoors v. Denver, 11 Mun. Corp. Cases, 560, 73 Pac. 1094.

—Hon. R. 8. Ryors, Special Judge. (1) If a cause of action stated before a justice of the peace is sufficient to indicate the intention of the pleader, it is sufficient on which to amend. Hernán v. Fanning, 34 Mo. App. 50 and cases cited; Rosenburg v. Miller et al., 61 Mo. App. 422; Nutter v. Houstan, 42 M'o. App. 366. (2) Entire performance of a contract by one of the parties, takes the contract out of the statutes of fraud. Hoyle v. Bush, 14 Mo.

—Hon. Alexander H. Waller, Judge. (X) The city of Fulton had the right to enact this ordinance and has the right to enforce the same, both as police regulation and as a source of revenue. St. Charles v. Elsnen, 155 Mo. 671; R, S. 1899, sec. 5841. (2) The weigher’s tax is not levied as against State Hospital No. 1. It puts no burden on the State. If it did why should not the State pay its pro rata share of injury done to the streets of appellant?

—Eon. Eugh Dabbs, Judge. (1) The deceased, Francis O’Connor, haying been a resident of Hamilton county, Iowa, at the time of the issue of the policy of insurance on his life and at the time of his death, and the policy of insurance being payable at the home office of the defendant in the city of New York, and the policy of insurance not being in the possession of the plaintiff nor in the State of Missouri, the Circuit Court of Jasper county was without jurisdiction to render…

<p>Appeal from Buchanan Circuit Court.-—Hon. Ohesley A. Mosman, Judge.</p> <p>(1) But plaintiff! has not preserved or made a case for review in this court. Porter v. Railroad, 60 Mo. 160.</p>

—Hon. Louis Hoffman, Judge. (1) A real estate agent must produce a purchaser, ready, able and willing to purchase on the terms prescribed by the seller and if he fails in this by the fault of the purchaser or his own fault, he has earned no commission. Yoder v. White, 75 Mo. App. 155.

<p>Appeal from Jackson Circuit Court.—Hon. John G. Park, Judge.</p> <p>(1) No error was committed in-the giving of instruction 1 on behalf of plaintiffs. Trounstine v. Fellers, 35 Ean. 447; Clark on Contracts, 40, 41, 42; Ma-clay v. Harvey, 90 111. 525; Palmer v. Insurance Co., 84 N. Y. Ct. App. 63 (39 Sickels) ; 1 Parsons on Contracts (9 ed.), pp. 518-524 (bottom paging); Eagle Mill Co. v. Caven, 76 Mo. App. 458; Bruner et al. v. Wheaton, 46 Mo. 363; Guest v. Railroad, 77 Mo. App. 258; Lancaster v. Elliott, 42 Mo. App. 503; Horton v. Insurance Co., 151 Mo. 619. (2) No error was committed in the giving of instruction 7, at the request of plaintiffs. Blaydes v. Adams, 35 Mo. App. 526; Feary v. O’Neill, 149 Mo. 467; Copland v. Railroad, 175 M'o. 650; Liese v. Meyer, 143 Mo. 547; Christianson v. McDermott Estate, 123 Mo. App. 448; Baker v. City of Independence, 106 Mo. App. 507.</p> <p>(1) The court should have sustained the demurrer to the evidence. Lindley on Partnership (2 Am. Ed.), 42; Hahlo v. Mayer, 102 Mo. 93. (2) Instruction 1 is erroneous. Newberry v. Durand, 87 Mo. App. 290; 9 Cye., 785; James & Sons v. Fruit Bottle & Jar Co., 69 M'o. App. 207; Bank v. Miller, 106 N. C. 347. (3) Instruction 7 is erroneous. ■ Delaney v. Refinery Co., 42 Mo. App. 659; Ellicott v. Turner, 4 Md. 476; Quirk v. Elevator Co., 126 Mo. 279. (4) The law presumes that the action of the trial court in granting a new trial herein was correct, that any error occurring in the trial was prejudicial to the defendant, and will sustain the action of the trial court, if it can be so done, upon any ground alleged in the motion for a new trial. ' Kuenzel v. Stevens, 155 Mo. 280; Hoepper v. Hotel Co., 142 Mo. 378; Ittner v. Hughes, 133 Mo. 680.</p>

—Hon. Thomas J. Seehorn, Judge. (1) The duty on which liability is alleged to be founded, or the contract out of which tort arises, should be correctly stated, whether the action is in form ex contractu or ex delicto. There is a variance between the duty of contractor as stated and the proof in support thereof that is fatal, for whether action is in form ex contractu or ex delicto, cause of action as set forth is based on a contract, the contract must be proven as alleged.

—Son. John G. Parle, Judge. There being evidence on the part of defendant tending to prove that plaintiff improperly used the machine this was contributory negligence and the defendant had the right to have same submitted to the jury without the limitation imposed by the insertion of the word “alone.” Cyclopedia of Law and Procedure (Cye.). Title Master and Servant, p. 1260; Holmes v. Bramdenbaugh, 172 Mo. 58; Moran v. Brown, 27 Mo.

—Hon. Henry M. Barney, Judge. • (1) Outgoing members of a partnership are not relieved from the performance of contracts made by the firm unless for a valuable consideration. (2) An outgoing member of a partnership must give notice to or have the consent of the other party to the contract of his retirement before he is released. 22 Am. and Eng. Enc. of Law (2 Ed.), p. 181. (3) Mere silence of a creditor does not amount to an assent.

—Hón. Joshua W. Alexander, Judge. (1) The service of a notice of garnishment is a levy of the attachment writ, though no actual seizure of property is made. (2) When sued in attachment, defendant has a right to file plea in abatement, but it is not essential prerequisite to suit on bond, especially when defendant has been prevented from doing so by the action of the attachment creditor by dismissing his action before the return day.

—Eon. Francis E. Trimble, Judge. (1) Fraud to be available as a defense, must be pleaded, and the facts constituting tbe supposed fraud must be set out. Consequently the court erred in admitting evidence of fraud over the objection of appellant. Nicholas v. Stevens, 123 Mo. 117; Paving Co. v. Field, 188 Mo. 204. (2) A party cannot blindly sign a statement, and then assert he was defrauded. He had the means at hand to see what the contract was.

—Hon. William B. ■ Teas dale, Judge. (1) The court erred in overruling defendant’s de- ' murrer to the evidence and peremptory instructions. Kerr on Fraud, and Mistake, p.- 381; Bernecker v. Miller, 11 Mo. 112; Garesehe v. McDonald, 103 M’o. Ill; Rumbold v. Parr, 51 Mo. 592; Funkhouser v. Lay, 78 Mo. 162; Henderson v. Henderson, 55 Mo. 531; Ridge v. Grenwell, 53 Mo. App. 183; Waddingkaxn v. Laker, 11 Mo. 132; Priest v. Way, 87 Mo. 16.

—Uon. William, A. Martin, Judge. (1) The prevailing party is entitled to recover costs, unless there is a different rule prescribed by law. R. S. 1899, sec. 1547.