Volume 129 — Missouri Appeal Reports

— Hon. Chas. D. Stewart, Judge. Plaintiff’s instruction number 1 is erroneous. (a) It declares it the legal duty of defendant to return plaintiff from National Stock Yards, Illinois, to Edina, Missouri, without expense because he had shipped a carload of horses from Edina to National Stock Yards. His contract provided: “No return transportation will be given.” His pass was a gratuity. .

— No». Chas. D. Stewart, Judge. Peremptory instruction to find for defendant should have been given. Plaintiff had no intention of paying fare when he got aboard the train, and refused to pay when called on by the conductor. He was a trespasser, and his removal was lawful. Logan v. Railroad, 77 Mo. 663; Lillis v. Railroad, 64 Mo. 464; Gilbert v. Nagle, 118 Mass. 278; Condran v. Railroad, 67 Fed. 522; Holt v. Railroad, 174 Mo. 524; Gates v. Railroad, 102 S. W. 50.

<p>Appeal from Monroe Circuit Court. — Hon. David Hi Eby, Judge.</p>

<p>Appeal from. Montgomery Circuit Court. — No». Jas. D. Barnett} Judge.</p> <p>(1) The agent who issued policy, “Carr Bros.” is the agent of defendant to receive proofs. Nickell v. Insurance Co., 144 Mo. 420; Parsons v. Insurance Co., 132 Mo. 594; James v. Insurance Co., 148 Mo. 3; Bush v. Insurance Co., 85 Mo. App. 158. (2) The agency of “Carr Bros.” once being shown is presumed to continue. McCullough v. Insurance Co., 113 Mo. 615. (3). Coffman, the adjuster of the insurance company by his conduct waived any other or further proofs, when he told Mrs. Webster, that the list was all that is required. Insurance Co. v. Fultz, 80 S. W. 576; Sisk v. Insurance Co., 95 Mo. App. 695. Such adjuster has apparent authority and, indeed, actual authority to act for the company. Bowen v. Insurance Co., 69 Mo. App. 272; Roberts v. Insurance Co., 94 Mo. App. 142; Gerhart v. Insurance Co., 86 Mo. App. 599; McCullom v. Insurance Co., 67 Mo. App. 66. (4) A waiver once made, the clause in the policy to which the waiver applies, is forever gone. It is equivalent to wiping such provision out of the policy. Terti v. Insurance Co., 76 M'o. App. 42; Porter v. Insurance Co., 62 Mo. App. 520; Okey v. Insurance Co., 29 Mo. App. 105; Brownfield v. Insurance Co., 84 Mo. App. 134. (5) In regard to the point, which is made by the defendant company, that an appraisal was not had — by accepting proofs of loss (which the company did in this case through “Carr Bros.” and have ever since kept them) the appraisal provision of the policy is waived, even though the parties differed as to the amount of loss. Cannon v. Insurance Co., 46 S. W. 375. Cannot insist on proofs of loss and appraisement ; they are inconsistent. Murphy v. Insurance Co., 70 Mo. App. 86; Bank v. Insurance Co., 109 Mo. App. 660; Hickerson v. Insurance Co., 35 S. W. 722. Demand for appraisal is, of itself, a waiver of proofs of loss. Smith v. Herd, 30 Ins. Law Jour. 393; Dee & Sons v. Insurance Co., 104 la. 167, 73 N. W. 594; Walker v. Insurance Co., 22 Ins. Law Jour. 752; Hall v. Insurance Co., 41 Pac. 65. (6) There can be no arbitrary disagreement on the part of the company. Before the appraisal clause can be brought into operation, the insurance company must seek out the insured and make an honest and sincere effort to agree on the amount of loss. That Avas not done in this case. Vangindertaelen v. Insurance Co., 82 Wis. 112; Harrison v. Insurance Co., 30 Ins. Law Jour. 253; Brock v. Insurance Co., 24 Ins. Inw Jour. 469; Alvord v. Insurance Co., 23 Ins. Law Jour. 805; Parnum v. Insurance Co., 83 Calif. 246.</p>

— Hon. Jos. J. Williams, Judge. (1) The judgment- should he reversed and the indictment held insufficient for the reason that it did not inform appellant of the place where the liquor was sold nor to whom sold. State v. Martin, 108 Mo. 117; Sherwood’s Com. on Crim. Law, pages 613-619. (2) Whatever is to be proved must be alleged. 1 Bishop Crim. Prac., secs. 81, 86, 88, 519, 566; Sherwood’s Com. on Crim. Law, 616; State v. Bankhead, 15 Mo. 558; State v. Hogan, 31 Mo. 310.

— Hon. David H. Eby, Judge. The court will observe from section 9631 that the law is mandatory, it says that the court shall declare the result of the vote, and make an order declaring article ten to be the law. The section does not say when the court shall so declare, therefore, it may be done at any term of the court. But in this instance, the court, by order of court as shown by the record, refused to make the ordc-r as required by said section.

— Hon. David H. Eby, Judge. (1) Upon the presentation of the petition, for a private road by plaintiff, the court failed to find that the land described in plaintiff’s petition was in Pike county, Missouri. And.the court also failed to find that the plaintiff was a resident of Pike county, Missouri. Fisher v. Davis, 27 Mo. App. 326; Railroad v. County, 96 Mo. 39; Anderson v. Pemberton, 89 M'o. 61.

— Hon. David H. Eby, Judge. A person charged with the violation of one section of the statute may be convicted of the violation of an-, other section if the indictment is broad enough to cover it. State v. Heckler, 81 Mo. 420; State v. Kurtz, 64 Mo. App. 125; State v. Quin, 94 Mo. App. 66. • It is not necessary to negative an exception or proviso contained in the section creating or defining the offense unless it is a necessary part of the description of the offense.

— Hon. L. B. Wood-side, Judge. Under the undisputed facts in this case, the plaintiff is not entitled to recover. Instruction number 7 asked by the defendant should have been given, also instructions numbers 1 and 6, refused by the court, declared the law correctly, and should have been given, if the case was to be submitted to the jury at all. This was a contract of sale and not a sale. No title passed. Benjamin on Sales (7 Am.

<p>NEW TRIAL: Verdict Against the Weight of Evidence: Appellate Practice. Where a motion for new trial was sustained and no reason assigned for the ruling, and where one of the grounds of the motion was that the verdict was against the weight of the evidence, the evidence being conflicting, the appellate court will not interfere with the ruling; the reason for setting aside the verdict may have been that in the opinion of the trial court the verdict was against the weight of the evidence, and, if so, the court did right to set the verdict aside.</p>

— Hon. David H. Eby, Judge. There was not sufficient evidence to establish the fact that fire from defendant’s engine ignited the depot from which the plaintiff’s barn caught fire, and the court should have sustained the instruction offered by defendant at the close of all the testimony in the nature of a demurrer to the evidence. Gibbs v. Railroad, 104 Mo. App. 276; Wright v. Railroad, 107 Mo. App. 209; 'Peffer v. Railroad, 98 M'o. App. 291; Peck v. Railroad, 31 Mo.

— Eon. Chas. D. Stewart, Judge. (1) It was error to allow Doctors Morris and Jurgens to testify as to their opinion of plaintiff’s condition from their subjective examination of him. The statements upon which they based this opinion were made by plaintiff at the time of an examination, was not before the court, and was not sworn to. In Livery Co. v. Railroad, 105 Mo.

— Hon. R. Steele Ryors, Special Judge. (1) The pretended tender of one dollar was not sufficient. Costs had accrued, and the tender after the commencement of the suit must be made to the constable of the township where the suit is pending. R. S. 1899, sec. 3944; Voss v. McGuire,-26 Mo. App. 452. (2) No demand is necessary in this State before the institution of the suit unless it is so made by the contract.

— Hon. Jas. D. Barnett, Judge. Tbe demurrer to tbe evidence should have been sustained. First. Because no negligence of defendant alleged in tbe petition Avas proven. If any negligence Avas proven, it was the negligence of Ferry, who was a fellow-servant with plaintiff. Hebert v. Wiggins Ferry Co., 107 M'o. App. 287; Forbes v. Dunnavant, 198 Mo. 198. Second.

<p>Appeal from Lincoln Circuit Court. — Hon. James D. Barnett, Judge.</p>

— Hon. James L. Fort} Judge. “If a party were unable to read, and signed a note after due inquiry and precaution, under an assurance that it was an agreement of a different kind, whether he signed in ignorance, through artifice of the payee, is a question for the jury.” Bank v. Clark, 52 Mo. App. 593; Frederick v. Clemens, 60 Mo. 313 j Harrison v. Walden, 89 Mo. App. 164.

<p>Appeal from Stoddard Circuit Court. — Hon. W. N. Evans, Judge.</p>

— Hon. James T. Neville, Judge. “The mere exhibition of a.sample at a sale amounts only to a representation that the sample exhibited has been taken from the bulk of the commodity offered for sale in the usual way.” Benjamin on Sales, p. 848; Horgons v. Stone, 5 N. Y. 85. “Every exhibition of a. sample to the purchaser at the time of the sale does not per se make a sale by sample.

— Hon. James D. Barnett, Judge. (1) The validity of the charter of a town can only be contested by a proceeding in quo warranto. Kayser v. Trustees of Bremen, 16 Mr. 88; St. Louis v. Shields, 62 Mo. 247; State ex rel. v. Flemming, 147 Mo. 1; Parker v. Zeisler, 73 Mo. App. 541; State ex rel. v. Birch, 186 Mo. 205; Bank v. Rockefeller, 195 Mo. 52.

Newton Circuit Court. — Hon. F. G. Johnston, Judge. (1) Tbe original bill of exceptions not containing either motion for new trial, motion in arrest, or affidavit for an appeal, and no call for their insertion, there is nothing before this court for review. State ex rel. v. Pulliam, 104 Mo. App. 94; Parsons v. Clark & Co., 98 Mo. App. 28; Warher v. Morin, 13 Mo. 455; Kurz v. Turley, 4 Mo. App. 237.

<p>1. INSURANCE: Fraternal Beneficiary Societies: Pleading. In an action on a benefit certificate in a fraternal beneficiary society, where the defense pleaded was false representations as to the physical condition of the applicant and a general allegation that the applicant did not comply with the by-laws of the society so that his certificate never became operative, this was not sufficient to admit evidence that after the application was made the applicant had had a spell of sickness before he was initiated as a member . into the society and had fraudulently concealed the fact.</p> <p>2. -: -: Misrepresentations. Where the application for a benefit certificate in a fraternal beneficiary society stated among other things in answer to questions propounded to the applicant that he had not been attended by a physician professionally within five years, this statement was not rendered untrue by the fact that within that time he had called upon his doctor for the purpose of paying a bill and while there mentioned that he had difficulty with his hearing and the doctor on ’ examination discovered and extracted an accumulation of wax from his ear, it appearing that the ailment was not uncommon, nor evidence tending to show the presence of any bodily disease or a condition inconsistent with sound health.</p>

— lion. L. B. Woodsicle, Judge. (1) The court should have sustained defendant’s demurrer to the evidence, because there was no negligence shown on the part of defendant’s employees in charge of the train. Lowe v. Eailroad, 32 South. 907; -Eailroad v. Eoberts, 91 N. W. 707; Eailroad v. Ganóte, 13 A. & E. E. E. Cas. (O. S.) 519; Warren v. Eailroad, 59 Mo. App. 367; Eevenscraft v. Eailroad, 27 Mo. App. 617; Grant v. Eailroad, 25 Mo.

<p>Appeal from Wayne Circuit Court. — Son. Joseph J. Williams, Judge.</p>

— Son. James D. Barnett, Judge. (!) Further, section 9 of sidewalk ordinances requires one week’s advertisement for bids and the affidavit of the printer shows publication of advertisement for bids on “Sept. 3d, 4th, 5th, 6th, 7th, 8th and 10th” which was not' a week for a week is a definite period of time commencing- on Sunday and ending on Saturday.” Leach v. Burr, 188 U. S. 510, 47 L. Ed. 567; Ronkendorf v. Taylor’s Lessee (U. S.), 4 Pet. 360, 7 Law Ed. 882, 886; Medland…

— lion. W. N. Evans, Judge. (1) The consideration of negotiable paper in the hands of a bona fide holder for value before maturity cannot be inquired into; mala fides alone can open the door to such inquiry. Gross negligence is not sufficient, but actual notice of the facts which impeach the validity of the notes must be brought home to the holder. Mays v. Robinson, 93 Mo. 114. (2) This case is on all fours Avith the cases cited below and is conclusive.

— Hon. James D. Barnett, Judge. (1) When tbe question is whether or not there was want of due care in any particular case, evidence of usage is admissible to show what constitutes due care as applied to that particular case. “Ordinary care” is not measured by a fixed rule, but by the usages of different places and trades.

— Hon. Charles D. Stewart, Judge. (1) The complaint follows substantially, the form No. 135, in the appendix of the Revised Statutes of 1899, and is the form which has been approved in this State for over fifty years by an unbroken line of decisions. It contains every requirement of the statute for actions of unlawful detainer, as provided for in the first part of section 3321 of the Statutes of 1899. The rule of stare decisis is eminently applicable to this case.

<p>1. CORPORATIONS: Stockholders’ Right to Examine Books: Mandamus: Another Suit Pending. Both at common law and “under the statute, a stockholder has a right to examine the books and records of the corporation in which he holds stock at seasonable times and for proper purposes; the right to enforce such privilege by writ of mandamus will not be denied on the ground that a bill in equity is pending on behalf of the same stockholder against the corporation and its officers, the purpose of which is to dissolve the corporation and wind up its business; the old chancery bill of discovery no longer obtains in this State and the statutes, authorizing the court to compel the production of hooks and papers in the power of the opposite party, is not as broad as the right of examination by a stockholder because it is limited to such examination as is essential to the merits of the controversy then pending.</p> <p>2. -: -: -: Discretion of Court. The awarding of a writ of mandamus to allow the examination of the books of a corporation by a stockholder is discretionary with the court; it is not affected by tbe existence of possible equitable remedies; notwithstanding tbe fact that another suit is pending between the same parties where equitable relief is sought, concerning the same matters the court in its discretion may grant the writ unless the relief to be obtained in the equitable proceeding is full, adequate and complete.</p>

Montgomery Circuit Court. — Hon. J. D. Barnett, Judge. (1) The defendants’ motion to strike out new matter .in plaintiff’s reply should have been sustained, for the reason that said new matter was not germane to the issues in said cause; for the further reason that said new matter was only a statement of evidence, which, under the code should not he pleaded.

— Eon. David E. Eby, Judge. The record shows all of the requirements of a toll road under sections 9547 and 9548 and 9476 of Revised Statutes of 1899.

— Hon. L. B. Woodside, Judge. (1) The general election law governs in this class of cases, there being no restriction on the legislature by the organic law on this class of cases, hence sections 4785, 5786 and 4788 of our Revised Statutes control. Eussie y. Brazell, 128 Mo. 110; Eichardson v. Mc-Eeynolds, 162 Mo. 649.

— Hon. David H. Eby, Judge. This suit being upon an instrument in writing, filed with the justice at tbe commencement of the action, and attached to the statement of account, as an exhibit and a part thereof, and being signed and executed by respondent only, stood confessed, not being denied under oath, and plaintiff was entitled to judgment thereon. Brown Mfg. Co. v. Gilpin, 120 Mo. App. 130; R. S. 1899, sec. 3967.

Louis City Circuit Court. — Hon. Matt. 6. Reynolds, Judge. (1) A beneficiary in a life insurance policy has a vested interest in the same from the moment it is issued. Blum v. Insurance Co., 197 Mo. 514; U. S. Casualty Co.. v. Kacer, 169 M'o. 301; Bank v. Hume, 128 U. S. 206; 3 Am. and Eng. Ency. Law (2 Ed.), p. 980.

Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge. (1) Under the statute any person has the right to inform the probate court that there is a person of unsound mind in its county, and upon such information it is the duty of the probate court to proceed to a hearing as provided by statute to ascertain whether the person complained of is sane or insane. This information can' be made by an “unofficial person.” Sess.

Petition for Prohibition. The county treasurer was the custodian of the funds of the county. “His duties are prescribed by law, and are as follows: ‘To receive all moneys payable into the treasury of the county, and to disburse the same on warrants drawn by order of the county court, to keep a just account of all moneys received and disbursed; to deliver over to his successor in office all things pertaining thereto, together with all moneys belonging to the county.’ ” These…

— Eon. W. N. Evans, Judge. The instructions numbered one and two on part of the plaintiff correctly declare the law. The court erred in granting a new trial.

<p>CRIMES: Carrying Concealed Weapons: Defense of Person. In a prosecution for carrying a concealed weapon, where the defendant claimed the right to carry a weapon on the ground that he “had been threatened with great bodily harm” and had reason to carry the same “in the necessary defense of his person,” the evidence is examined and held sufficient to justify an instruction directing the jury to find the defendant not guilty.</p>

— Hon. James L. Fort, Judge. (1) The appraisement of personal property, petition for the sale of real estate, report of the sale of real estate, and the first, second, third and fourth annual settlements, admitted in evidence over defendant’s objection, related only to transactions ending January 28, 1896, nearly four years before the rendition of first services sued for.

— Eon. James L. Fort, Judge. (1) The court erred in admitting testimony as to the loss of salary suffered by plaintiff, for the reason that there is no averment in the petition as to any loss of earnings. Paquin v. Railroad, 90 Mo. App. 118; Slaughter v. Railroad, 116 Mo. 269; Mellor y. Railroad, 105 Mo. 455; Coontz y. Railroad, 115 Mo. 669.

— Hon. L. B. Woodside, Judge. (1) It was clearly erroneous for the court to admit in evidence to prove the laws of Tennessee the hook offered by plaintiff. Charlotte v. Chauteau, 25 Mr. 465; 1 Greenleaf on Evidence, secs. 486-488; Pierce v. Indseth, 106 U. S. 551; Bright v. White, 8 Mo. 425. (2) The court erred in giving instruction numbered 1 on the part of the plaintiff.

— -Eon. W. N. Evans, Judge. When affirmative representations of fact are made, and designed to be acted on by another, and he does act upon such representations believing them to be. true, when they are in fact false, the party making them is liable for the consequences thereof, regardless of the question of his knowledge of such falsity or intent to deceive. Mitchel v. Zimmerman, 4 Tex. 80, 51 Am.

— Eon. J. G. Sheppard, Judge. (1) The statute (R. S. 1899, sec. 813.) is mandatory and is without exception or excuse. This duty to file transcript is a personal duty imposed upon the appellant by law, and if he fails to do so he must suffer the consequences. Ziefle v. Seid, 137 Mo. 538; Caldwell y. Hawkins, 46 Mo. 263; Dean y. Jones, 27 Mo. App. 468; McCaffery y. Railroad, 31 Mo. App. 348; Barnes y. Wynn, 31 Mo. App. 486.

- — Eon. Argus Cox, Judge. (1) The court cannot read into a contract already plain an additional article of agreement, not contemplated by tbe parties, and then by an instruction allow a party to escape a liability where no such escape was provided for in the original agreement. Johnson v. Pugh, 85 N. W. 641, 110 Wis. 487; Walker v. Automobile Co., 124 Mo. App. 628.

Louis City Circuit Court. — Eon. Jno. W. McEllimney, Judge. (1) The verdict is so wholly unsupported by the evidence that it is manifestly the result of passion and prejudice on the part of the jury. It is one of those unaccountable cases where the jury is moved to its conclusion by some motive not found in the evidence, and in the interest of justice and for the protection of personal rights, the appellate court must consider the evidence.

— Eon. W. N. Evans •Judge. A shipper, for loss or misshipment of goods, can only recover the market value at the place of destination; and this is the rule even if the shipper had contracted to sell them at a special price above the market value, unless the carrier had notice at the time of shipment of the special price and purpose for which the shipment was made. And the plaintiff must plead and prove this notice. Rogan v. Railroad, 51 Mo. App. 665; Gray v. Railroad, 54 Mo.

— Hon. Jesse G. Sheppard, Judge. The bill of exceptions was filed in the office of the clerk of the trial court June 11, 1908. The appeal therefore was returnable to the October, 1906, term of this court, but the certified copy of the judgment and order granting appeal was not filed in this court until February 16, 1907, which was not in time, and we therefore insist that the judgment of the trial court be affirmed. R. S. 1.899, secs. 812, 813. Rules 14a and 22 of this court.

— Hon. Joseph J. WilUams_, Judge. The court erred in permitting the plaintiff to prove the relative value of the land upon which the meadow was growing just before and just after the. stock had trampled on the same, as the injury was not permanent. He says his meadow made nothing that spring, but came out the next spring and he had a good stand. In such cases the measure of damages is not the damage to the freehold, but is the value of the meadow at the time of the injury.

<p>Appeal from Butler Circuit Courts — Hon. J. G. Sheppard, Judge.</p>

<p>Appeal from Wayne Circuit Court. — Hon. Joseph . J.. Williams, Judge.</p>

— Eon. W. N. Evans, Judge. (1) The adoption of the local option law, article 3, chapter 22, Revised Statutes 1899, bars any prosecution in the locality adopting said law for violation of the dramshop law. The dramshop law was not in force in Howell county at the time of the trial and conviction of defendant.

<p>1. UNLAWFUL DETAINER: Notice to Quit: Disclaimer by Tenant of Landlord’s Title. The facts in this case' are fully stated and the points of law raised fully decided on -a former appeal. [Cook v. Penrod, 111 Mo. App. 128.]</p> <p>2. PRACTICE: Jurisdiction: Waiver of Objection to Jurisdiction. Where the party to an action, after a change of venue was awarded, appeared in the court to which the cause was sent, applied for and obtained a continuance there, and participated in the trial, he waived his right to object that the judge who ordered the change of venue in the first place was disqualified to sit and had no jurisdiction to make the order.</p>

<p>PLEADING: One Pleading for all Matters of Action or Defense. Section 666, Revised Statutes 1899, is imperative and must be followed in its requirement that a party shall set forth in one entire pleading all matters which by the rules of pleading may be set forth in such pleading; where a defendant filed several different and distinct answers, setting up as many counterclaims, this was reversible error, although evidence was introduced upon the several counterclaims without objection.</p>

— Son. J. O. Sheppard, Judge. (1) The amended, petition was the statement of a different cause of action from that contained in the original petition, and defendant’s motion to strike it out should have been sustained. Scoyille y. G-lasner, 79 Mo. 449; Liese y. Meyer, 143 Mo.' 547; Jordan y. Railroad, 105 Mo. App. 455; Ross y. Land Co., 162 Mo. 331; Walker y. Railroad, 193 Mo. 478; Jackson y. Yan Horn, 91 Mo. App. 657; Clothing Co. y. Railroad, 71 Mo. App. 247.

— Eon. Chas. D. Stciaart} Judge. (1) The county court-having exercised its judicial function and granted the license, then the duties of the clerk and collector are merely ministerial and mandamus will lie to compel the performance of the same. Mandamus is the proper remedy to compel the issuance of a dramshop license when the applicant has complied with all the requirements of the laws of the State. State ex rel. v. Baker, 32 Mo.

— Hon. Frank H. Trimble, Judge. (1) Plaintiffs alleging contracts with corporations as the basis of recovery in an action should, when the contract is an issue by a positive denial, not only prove that it was made with some agent, being its duty or ratified by corporation having knowledge or authorized by competent evidence. Griffin v. Railway, 22 M'o. App. 622. (2) A special agent’s authority must be proved. Beusberg v. Harris, 46 Mo. App. 406; Alt v. Grosclose, 61 Mo.

— Eon. Alomo D. BurneSj Judge. (1) Under the facts in this case, if respondent rendered any services to her mother in boarding, caring for in sickness, washing for, or boarding, caring for or cooking for friends and visitors of deceased such services were rendered in aid of her husband to support her family and constituted a part of her duty to him as his wife.

— Hon. Nat. M. Shelton, Judge. (1) The court erred in refusing to direct a verdict for defendant at the close of plaintiff’s evidence, as also at the close of all the evidence. Skipton v. Railroad, 82 Mo. App. 143; Brockschmidt v. Railroad (Mo.), 103 S. W. 966, 968; Grout v. Railway, 102 S. W. 1027; White v. Railway, 84 Mo.

— Hon. Alonso D. Bwnes, Judge. (1) If this verdict and judgment had been rendered in another suit their admissibility in evidence and their legal effect would not, and could not, be questioned. The fact that the verdict and judgment were rendered in another count in the same case at a preceding term of the court does not abate their legal effect. Russell v. Railway, 154 Mo. 428; Sheridan v. Forsee, 114 Mo. App. 588; Henderson v. Diclcey, 50 Mo. 161;' Seay v. Sanders, 88 Mo.

— Hon. John G. Park, Judge. The petition fails to state a cause of action in that it alleges no negligence, and the court erred in overruling the objection made at the beginning of the trial to the introduction of any evidence under the petition. This objection was also called to the attention of the trial court by demurrer to the petition and in the motion in arrest of judgment. Gurley v. Railroad, 93 Mo. 450; Sullivan v. Railroad, 97 Mo. 117; Jacquin v. Gable Co., 57 Mo.

— Hon. Howard Gray, Judge. (1) Upon the special finding of facts as made by the court, the court should have sustained the defendant’s demurrer to the evidence at the close- of plaintiff’s evidence, and also at the close of all the evidence,.for the reason that the court by its special finding of facts,found, and the evidence so showed, that the plaintiff had not found a person before the defendant did who would take the mines and lease on the terms dictated by the…

— Hon. Howard Gray, Judge. (1) The appellant from a justice’s court is at all times bound to prosecute his appeal with diligence. R. S'. 1899, secs. 4073, 4074, 4075, 4076; Cabanne v. Macadaris, 91 Mo. App. 70; Hardison y. Steamboat, 13 Mo. 226.

<p>Appeal from Macon Circuit Court. — Hon. Hat. M. Shelton, Judge.</p> <p>(1) Defendant’s motion to strike out should have been sustained. Francis v. Transfer Co., 5 Mo. App. 7; Trigg v. Railway, 74 Mo. 147; Henry v. Railway, 76 Mo. 293; Strange v. Railway, 61 Mo. App. 586; Spry v. Railway, 73 Mo. App. 211; Deming v. Railway, 80 Mo. App. 172; Owens v. Railway, 84 Mo. App. 148; Snyder v. Ry., 85 M'o. App. 495; Rawlings v. Ry., 97 Mo. App. 511, 515; Grayson v. Transit Co., 100 Mo. App. 60. (2) Plaintiff’s evidence failed to make a case. She produced no ticket entitling her to ride on that train. There was no proof of unnecessary force. Randell v. Railway, 102 Mo. App. 342. (3) Plaintiff’s petition states no cause of action hut shows she had no right to ride on that train. It fails to state that the train stopped at her station. Logan v. Railway, 77 Mo. 665; Marshall y. Railway, 78 Mo. 616; Gurley v. Railway, 93 Mo. 450; Sira v. Railway, 115 Mo. 133; Turner v. McCook, 77 Mr. App. 200. (4) The evidence of conversations betAveen -the agent selling the tickets at Keytesville and plaintiff’s party is Avholly incompetent and prejudicial and its admission is reversible error. See authorities under point 3. (5) All evidence relating to the Avalk from Brunswick to Keytesville and the plaintiff’s sickness and premature confinement was incompetent and is prejudicial error and produced-the excessiwe damages found by the jury, since the verdict shows there was no unnecessary force or any insult used in the expulsion. (6) Plaintiff was- an incompetent witness. The conductor is -dead. Harvesting-Machine Co. v. Heath, 65 Mo. App. 468; Williams v. Edwards, 94 Mo. 451.</p> <p>(1) The ticket agent at Keytesville was acting within the scope of his authority when he directed plaintiff that she could return from Chillicothe upon the train from which she was expelled. The company Avas therefore bound by such directions. Graham v. Railroad, 66 Mo. 536; Hicks v. Railroad, 66 Mo. 329; Logan v. Railroad, 77 Mo. 668. (2) Plaintiff’s cause of action is not for breach of contract, but for tort committed upon her by defendant in wrongfully expelling- her from a train where she had a right to be by reason of the payment of her fare and the direction of defendant through its agent to take this train. Defendant was therefore liable for all damages directly resulting from its Avrong. Cowan v. Telegraph Co., 64 L. R. A. 545;- Green v. Telegraph Co., 67 L. R. A. 985; Brown v. Railway, 54 Wis. 342; Barnes v. Telegraph Co., 65 L. R. A. 666. (3) Plaintiff having been directed by defendant, through its agent, to take passage upon the train from Avhich she was ejected, then it becomes immaterial as to what defendant’s rules and regulations were in regard to stopping that train at Keytesville. Having- directed plaintiff to take this train, it could not thereafter eject her from the train before she reached her destination, without committing an actionable tort. Logan y. Railroad, 77 Mo. 668; McGee v. Railroad, 92 M'o. 208; Hicks v. Railroad, 68 Mo. 329; Owens v. Railroad, 84 Mo. App. 143; Scoffield v. Railway, 55 L. R. A. 223; Railway y. Wood, 55 L. R. A. 536; Railway v. Harper, 64 L. R. A. 283; Railway v. Payne, 70 L. R. A. 946; Railway y. Little, 61 L. R. A. 122; Railroad v. Nuzurn, 50 Ind. 141. (4) Defendant’s motion to strike out was properly overruled. Defendant’s wrong in expelling plaintiff from its train was the direct and proximate cause of her injury. Evans v. Railroad, 11- Mo. App. 463; Estes y. Railroad, 110 Mo. App. 725; Dickenson y. Railroad, 90 Mo. App-. 389; West y. Railroad, 187 Mo. 351; Farney y. Geldmocher, 75 Mo. 113; Barnes v. Telegraph Company, 65 L. R. A. 666; Brown y. Railroad, 54 Wis. 342; Cowan v. Telegraph Company, 64 L. R. A. 545; Green v. Telegraph Company, 67 L. R. A. 985. (5) Defendant’s conductor was not a party to a contract or cause of action in the meaning of the statute, and the fact that he was dead at the time of trial is no reason for excluding plaintiff’s evidence.</p>

— Hon. Alomo D. Burnes, Judge. (1) At the close of-the evidence in chief for plaintiff and again at the close of all the evidence, the defendant asked the court to instruct the jury that, under the pleadings-and the evidence in the case, the plaintiff could not recover. Both were refused. The appellant claims this was error. Lindersmith v. Land Co., 31 Mo. App. 258; Pickle v. Commercial Assn., 10 Mo.

— Eon. Louis Hoffman, Judge. (1) Where the building destroyed constitutes the entire subject-matter of the contract or lease the leasee is relieved against an express covenant to pay rent. The consideration to the tenant to pay the rent is .based upon his occupancy of the premises and the benefits derived therefrom. When the premises are destroyed the consideration fails. 7 Am. and Eng. Ency.

— Son. Ghesley A. Mosmcm, Judge. (1) The first sentence in the decree of the court recites the filing, examination and recording of the published notice of the administrator of his intention to file his final settlement at the next term of the probate court. This notice was under section 282, Revised Statutes 1899. (2) This statute is not particular to any one, but general to all. The notice is to all creditors and others interested in the estate.

— Eon. Ohesley A. Mosman, Judge. (1) The validity of a clause providing for costs of collection including attorney’s fees has been recognized by the courts of this state. Creasy v. Gray, 88 Mo. App. 454; Bank v. Jacobs, 73 Mo. 35; McCoy v. Green, 83 Mo. 626; 1 Daniel on Negotiable Instruments (1 Ed.), p. 78; Bowie v. Hall, 1 L. R. A. 546; Alexander v. McDow, 108 Cal. 25; Boyd v. Smith, 39 N. E. 208; Kendall v. Page, 83 Tex. 131.

— Hon. John P. Butler, Judge. (1) The court had no more right to instruct the jury to convict the defendant unless he accounted for the possession of the property, than to convict unless he established his alibi, in other Avords, the court had no right to instruct the jury to ignore either of these defenses and it Avas as much of a misdirection to instruct the jury to ignore the evidence of alibi and convict defendant unless he accounted for the possession as it Avould have…

— Hon. Hermann Brumback, Judge. (1) Plaintiff’s injuries are due to her own negligence and not to the negligence of the defendant, as appears from the overwhelming weight of the evidence. Friesz v. Fallon, 24 Mo. App. 439; ELickman v. Railroad, 47 M'o. App. 65; Walton v. Railroad, 40 Mo. App. 544; Weaver v. Railway, 60 Mo. App. 210. (2) The verdict is excessive. Stoetzel v. Swearingen, 90 Mo. App. 588; Haynes v. Trenton, 108 Mo. 123.

— Hon. Henry L. McGune, Judge. (1) The court should not have admitted in evidence the statement of the expert witness Hardy of his conclusion as to the cause of the explosion or fire in question. It was the province of the jury, not of the expert, to determine the cause of the explosion or fire. Guthridge v. Railway, 94 Mo. 468; Glasgow v. Railway, 191 Mo. 347; Taylor v. Railroad, 185 Mo. 239; Roscoe v. Railway, 202 Mo. 576; Lutz v. Railway, 123 Mo.

— Hon. J. B. Johnson, Special Judge. (1) A book or record is the best evidence of what it contains, and parol evidence of its contents is not admissible in the absence of any showing of inability to produce it. (2) Declarations of an agent to bind a principal must be made at the very time he is doing an act he is authorized to do, and must be concerning the act he is then doing.

<p>1. TRIAL PRACTICE: Submitting Controversy: Agreed Case: Jurisdiction. Where an agreed case is submitted without action the jurisdiction of the court attaches only to the precise state of facts contained in the stipulation in the former proceeding, and the court has no authority to permit either party against the objection of the other to adduce other facts or to introduce evidence of any character or withdraw from the contract.</p> <p>2. -: -: -: -: Equity: Mandamus. Where one of the parties to a controversy submitted on an agreed case, filed a bill in equity to cancel the contract of submission and proper service was had upon the parties, the court becomes possessed of jurisdiction over the parties and the subject-matter, and the question whether the facts alleged sufficiently state a cause of action for equitable relief is primarily to be determined by the trial court; and if it commits error thereon the aggrieved party has his remedy by appeal or writ of error and mandamus will not lie to compel the trial court to proceed to hear the submitted controversy on the ground that the petition in equity states no cause of action.</p>

Pettis Circuit Court. — Hon. Louis Hoffman, Judge. (1) - Instruction number one, given by tbe court for plaintiff, was manifestly erroneous. This instruction practically told tbe jury that if they believed defendant made an assault upon plaintiff, then it was the duty of tbe jury to find a verdict for tbe plaintiff, even though defendant did not strike plaintiff or injure him in tbe slightest degree.

— Hon. William, B. Teasdale, Judge. (1) The court erred in the admission of all testimony as to the value of the work and wages of the wife of plaintiff, and the loss thereof, as a clerk in the store. The only services for which plaintiff was entitled to recover was the domestic services of his wife. Cullar v. Railroad, 84 Mo. App. 347; Smith v. Railroad, 119 M'o. 246; Macks v. Drew, 86 Mo. App. 224; 21 Cyc. 1393.

— Hon. Alomo D. Burnes, Judge. (1) It is only in cases where the complete transcript or in lieu thereof a certificate of the judgment, is not filed in this court in proper time that the judgment may be affirmed.

— Non. William O. Ellison, Judge. (1) The sole question to be determined by this court, on this appeal, is whether or not the trial court committed error in sustaining defendant’s motion for new trial, on the ground stated by the trial court in its order granting a new trial as stated in the record. Milling Co. v. White Line, etc., 122 Mo. 258; Bradley y. La-ppel, 133 Mo. 545.

— JEL on. John P. Butler, Judge. (1) A guaranty of collection cannot be enforced until legal proceedings to collect have been instituted and proved ineffectual, although the principal may have been insolvent. Bosnian v. Akeley, 39 M'ich. 710, 33 Am. 447; Dwight v. Williams, 4 McLean 581; McMurry v. Noyes, 72 N. Y. 523; Osborn & Co. v. Lawson, 26 Mo. App. 549.

— Hon. Wm. H. Martin, Judge. (3) If a Avriting admits the construction placed on it by the parties to it, that construction will prevail. Rose v. Carbonating Co., 60 M'o. App. 32. A written .instrument means whatever the parties to it intend that it shall import. There is probably no safer guide to lead up to its proper construction than the acts of the parties themselves.

— Eon. James E. Goodrich, Judge. (1) The lav? does not impose upon the master the obligation to furnish a good and sufficient appliance. He Js not an insurer of the safety of the appliance, he furnishes. He is only bound to use ordinary care in furnishing reasonably safe appliances. Goins v. Railroad, 37 Mo. App. 221; Harrington v. Railroad, 104 Mo.

— Eon. Alomo D. Btimes, Judge. (1) Plaintiff was not entitled to recover any damages on account of alleged wounded feelings, humiliation or mortification in being required to leave the train at the time and place in question. Trigg v. Railway, 74 Mo. 147; Connell v. Telegraph Co., 116 Mo. 34; Kellett. v. Railway, 22 M'o. App. 356; Breen v. Transit Co., 102 Mo. App. 479; Grayson v. Transit Co., 100 Mo. App. 60; Snyder v. Railroad, 85 Mo. App. 495; Deming v. Railway, 80 Mo.

— Hon. George W. Wanamalcer, Judge. (1) The court erred in giving plaintiff’s instruction 2, submitting the question of negligence because of the failure to have a toggle on the pile driver. Instructions must be based on the evidence as well as the pleadings and there being no evidence to support such an instruction it was error to give it.

— Hon. Howard Gray, Judge. (1) Granting that Louisa Guthrie was the owner of the funds in the Franklin Bank at St. Louis, the check given by her to the Velvet Mining Company when accepted and paid by the Franklin Bank and issuance of its draft to the Velvet Mining Company was an absolute assignment of her funds to the company. The drawer cannot revoke the owner’s right. Lewis v. International, 13 Mo.

— Hon. John G. Butler, Judge. (1) If the house was personal property between the parties as claimed by respondent then respondent had a right to remove it from the premises at the expiration of the lease or at the abandonment of the leasehold; and if he did not remove it at such time he forfeited all rights thereto and it immediately became a part of the realty and therefore the property of appellant. i Washburn on Real Property (4 Ed.'), p. 27; 8 Am. and Eng.

— Hon. Hermann Brumback, Judge. (1) The evidence was not sufficient to entitle the plaintiff to recover, and the court erred in refusing to give defendant’s peremptory instruction asked at the close of plaintiff’s evidence, and again at the conclusion of all the evidence. Smart v. Kansas City, 91 M'o. App. 593; Smith v. Bank, 99 Mass. 612; Glasscock v. Swofford Bros., 106 Mo. App. 657; Franklin v. Railroad, 97 Mo. App. 473; Kelley v. Railroad, 105 Mo. App. 365.

— Eon. Henry L. McGune, Judge. (1) On all the evidence in the case the verdict should have been for the defendant. Feary v. Railway, 162 Mo. 96; Hamilton v. Railway, 114 Mo. App. 509; Chitty v. Railway, 149 Mo. 74; Orcutt v. Building Co., 99 S. W. 1062; McManamee v. Railroad, 135 Mo. 447; McGrath v. Railroad, 197 Mo. 105; Trotter v. Railway, 122 Mo. App. 405; Beebe v. Railroad, 103 S. W. 1019. (2) The court erred in giving instructions 1, 2, as requested by the plaintiff.

<p>1. PASSENGER CARRIERS: Pleading: Acts of Negligence. A petition is analyzed and found to contain two separate acts of negligence, to-wit: The sudden starting of the car on which the passenger was approaching a seat so as to swing him out of the car whereby he was struck by a passing car; and the further act that he was so struck.hy reason of the negligent conduct of-the employees in charge of the latter car. Held, further, that said acts of negligence are not contradictory and that a recovery may be had upon both or either one as the evidence may show.</p> <p>2. -: -: -: Instruction. The criticism of an instruction is overruled, since the consideration of all the other acts of negligence than the one mentioned in the petition had been withdrawn from the jury.</p> <p>3. -: Negligence: Instruction: Reasonable Care. Nor is an instruction necessarily objectionable because of the use of the words “reasonable care” instead of “ordinary care.”</p> <p>4. -: -: -: Prudent Person: Common Error. n. criticism of an instruction using “a prudent person” instead of an “ordinarily prudent person” is held not well taken, since the appellant by its own instructions referred to and adopted said expressions.</p>

<p>1. PASSENGER CARRIERS: Negligence: Pleading: Facts: Presumption. A petition averred the relation of passenger and carrier and stated that plaintiff was hurt hy the closing of certain doors without alleging any negligence. Held, the pleading was insufficient since the liability of the carrier to the injured passenger is based on the former’s negligence; and a petition cannot leave it problematical whether there was negligence or not, though at the trial the evidence of the facts pleaded would raise the presumption of negligence.</p> <p>2. -: -: -: -. The presumption of negligence drawn from an injury to a passenger is an argumentative one, or rather an inference and not a presumption proper and the negligence should be averred, since it is not good pleading to allege evidence of a fact instead of the fact itself. [Hamilton v. Railway, 114 Mo. 504, 509, applied.]</p>

— Hon. Ohesley A. Mosman, Judge (1) Instruction number 2 given for defendants is correct, (a) A lot owner has a legal right to grade his lot for the full width thereof to any depth. 1 Cyc. 777, and cases cited in note 56. (b) There is no legal wrong in making the excavation.

<p>APPELLATE PRACTICE: Abstract: Motion for New Trial: Bill of Exceptions: Record: Judgment. The abstract must show by the record proper the filing of motion for a new trial, the extension of time to fill bill of exceptions and the filing thereof, and also that there was a final judgment.</p>

— Hon. Hugh Dabbs, Judge. (1) The duty of collecting the city taxes is imposed by law upon the city collector. R. S. 1899, section 5813. (2) Since the tax in question had been extended on the tax books of the city, which books had in turn been delivered to the city collector for the purpose of collecting said tax, and the city collector was demanding the payment of the same from the plaintiff, it results that the city collector is a necessary party defendant to this suit.

— JEon. S. A.. 'Wright, Special Judge. If the parties to the case fail and refuse to agree to a special judge, or fail and refuse to agree to the election of a special judge, then it is the duty of the court to send it to another circuit or to call in a regular judge from another circuit to try the case. R. S. 1899, secs. 819, 820, 821, 822; Coffey v. Carthage, 200 Mo. 616; State ex rel. v. McKee, 150 Mo. 233.

— Hon, Henry L. MeGune, Judge. (1) The petition did not state facts sufficient to constitute any cause of action in favor of plaintiffs and against these defendants. (2) The court erred in overruling defendants objections to the introduction of any testimony under the statement filed by plaintiffs.

— Hon. Howard Gran/, Judge. (1) The court had no authority or jurisdiction to pass sentence upon the defendants at the June term, 1907, upon a plea of guilty entered at the November term, 1906. People ex rel. Smith v. Allen (111.), 39 N. E. 568; United States v. Wilson, 46 Fed. 748; Colby, Cr. Law, 392; People v. Morrisette, 20 How.

— Hon. Hoiwrd, (Hay, Judge. (1) It has been held on a former appeal in this case that plaintiff had a right under its contract with defendants to elect to sell certain vehicles to defendants for the promissory note of defendants, and that the refusal of defendants to accept said vehicles and execute their promissory note for the same was a breach of the contract in controversy entitling plaintiff to damages. Carriage Co. v. Gilmore, 123 Mo. App. 19.

— Hon. Hugh Dabbs, Judge. In this statutory action the person suing must bring himself within the statutory requirements neces-' sary to confer the right of action, and this must appear in the petition, otherwise it will show no cause of action. Barker v. Railroad, 91 Mo. 86; Dulaney v. Railway, 21 Mo. App. 597; Sparks v. Railway, 31 Mo. App. Ill; McIntosh v. Railway, 103 Mo. 131.

— Hon. Howard Gray, Judge. ' (1) There was no evidence that plaintiff owned the mare and buggy, to recover the value of which this suit was brought, all the evidence on the question of ownership being to the effect that this mare and buggy belonged to James Flanery, the husband of plaintiff. Turner v. Railroad, 76 Mo. 261; Alexander v. Railroad, 76 Mo. 494.

<p>Appeal from Schuyler Circuit Court. — Hon. Nat. M. Shelton, Judge.</p>

<p>Error to Pettis Circuit Court. — Hon. Louis Hof man, Judge.</p>

Appeal .from Henry Circuit Court. — Hon. Charles A. Denton, Judge. (1) The petition states facts sufficient to constitute a cause of action. It parallels the petition in the case of Crimes v. Eddy, 126 Mo. 168, so far as the acts' of the defendant are concerned, the only difference being the resultant damages and the proximity of the cause. There was the wreck.

— Hon, J. B. Johnson, Judge. (1) In the garnishment of a corporation the return of the sheriff must- show that he served a notice in writing upon the officer of the corporation. R. S. 1899, sec. 8427.

— Ron. Levin Wilooooen Shaffer, Judge. (1) We attacked this petition all the way through the circuit court; by special demurrer, by objection to any evidence, by demurrer to the evidence, and by motion in arrest of judgment. It is bad for various reasons. R. S. 1899, secs. 7977, 7979; Burnham v. Insurance Co., 75 Mo. App. 399; Burgess v. Insurance Co., Ill Mo. App. 186; Todd v. Insurance Co., 1 Mo. App. 172; Wright v. Insurance Co., 73 Mo.

— Hon. Joshua W. Alexander, Judge. (1) The right of trial by jury is a constitutional right. The lower court deprived the plaintiff of the right of trial hy jury. Ladd v. Williams, 104 Mo. App. 397; Jones v. Railroad, 32 L. Ed. 480, 128 U. S. 443, 9 Sup. Ct. 118; Supp. Fed. Stat. Ann. 1907, p. 68, sec. 2. Act June 11, 1906, c. 3073, sec. 2, 34 Stat. 232; Dean v. Woodenware Works, 106 Mo. App. 177 ; James v. Mut. R. F. L., 148 Mo. 16; Ballard v. Railway, 51 Mo.

— Eon. Joshua W. Alexander, Judge. (1) The court erred in giving plaintiff’s instructions numbered one and five. ’ Both these instructions assume that defendant was negligent and also that the well in question belonged to plaintiff, and direct a recovery without proof of either defendant’s negligence or plaintiff’s ownership of the well, two facts that it was essential for plaintiff to prove in order to make out her case.

— Hon. Hugh Dabbs, Judge. (1) Recitals in the bill of exceptions will not supply the abstract of record proper. State v. Harris, 121 M'o. 445; Walser v. Wear, 128 Mo. 652; Bick v. Williams, 181 Mo. 526; Wire Co. v. Brooks, — Mo. App. —, 104 S. W. 482.

— Hon. William H. Martin, Judge. An indictment or information which follows the language of the statute in describing the offense is sufficient. State v. Edgen, 181 Mo. 582; State y. Villines, 107 App. 593; State y. Kentner, 178 Mo. 493, and cases cited; State v. Wilkerson, 170 Mo. 184; State y. Adams, 108 Mo. 208; State y. Johnson, 83 Mo. 317; State v. Davis, 70 Mo. 467; State v. Dewitt, 152 Mo. 76; R. S. 1899, sec. 2991; Kelley’s Criminal Law & Practice, sec. 187.

— Hon. Hugh Dabbs, Judge. (1) The return shows copy of writ and petition was left with a member of his (Luke’s) family. The statute requires that it be left with a person of his family. R. S. 1899, sec. 570. (2) Luke’s motion to set aside the default judgment duly sworn to, shows that plaintiff was never in his employ, and that Luke was not operating the mine in which plaintiff was injured and had no interest therein and had not had for about two years.

— Eon. Jaolcson L. Smith, Special Judge. (1) The court should have directed a verdict for defendant because under all the evidence plaintiff was not entitled to recover. Ashbrook v. Railway Co., 18 Mo. App. 290; Willmott v. Railway Co., 106 Mo. 535; Petty v. Railroad, 179 Mo. 666; Lee v. Jones, 181 Mo. 291; Sweeney v. Railway, 150 Mo. 386; Parks v. Railway, 178 Mo. 108.

— Eon. John G. Park, Judge. (1) Appellant’s instruction directing a verdict in its favor, ought to have been given, as there was no evidence of negligence on the part of appellant’s driver, and negligence could not be inferred from the mere fact of the collision. Lee v. Jones, 181 Mo. 291, 298; Carvin v. St. Louis, 151 Mo. 345; Yarnell v. Railroad, 113 Mo. 580; Breen v. Cooperage Co., 50 Mo. App. 214.

— Hon. A. L. Cooper, Special Judge. (1) The court erred in refusing to sustain the demurrer offered by the appellant at the close of the evidence of the plaintiff, and manifestly erred in overruling the appellant’s peremptory request for a verdict in its favor at the conclusion of the whole case. The evidence fails to establish a case against the appellant and conclusively shows that appellant was not guilty of any negligence whatsoever.