Volume 130 — Missouri Appeal Reports

Jackson Circuit Court. — Hon. Thomas F. Reynolds, Special Judge. (1) The facts as proven in this case render defendant liable. The identical proposition as to pleading, evidence and instructions, has been established by the supreme court. Reno v. St. Joseph, 169 M'o. 642; Peters v. St. Joseph, 117 Mo. App. 449. (2) The granting of a new trial to defendant on the ground set forth was unwarranted and arbitrary in the extreme.

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. (1) The deceased husband of plaintiff forfeited bis membership in the Order of Railroad Telegraphers for failure to pay dues to said order within the time prescribed by law, and thereby forfeited his membership in the mutual benefit department, and thus render his certificate null and void. (2) The power of associations of this character to provide forfeiture ipso facto is uniformly sustained.

Louis City Circuit Court . — Hon. Moses N. Sale, Judge. (1) A judgment rendered in favor of one or more joint and several obligors is a bar to a suit against another co-obligor if the grounds *of defense set up in both cases are shown to be identical; that is, a discharge of the obligation or other defense equally applicable to all obligors.

Original Writ of Prohibition. Absolute writ denied and proceeding dismissed. The remedy by prohibition is the only adequate and proper proceeding in this case. R. S. 1899, sec. 4448; 16 Enc. PI. & Pr., p. 1115; State ex rel. v. Elkins, 130 Mo. 90; Howard v. Peirce, 38 Mo. 296; State ex rel. v. Alleer, 45 Mo. App. 551; State ex rel. v. Hirzel, 137 M'o. 447; Harrison County y. Burris, 84 Mo. App. 654.

<p>LOCAL OPTION: Cities of 2,500 Inhabitants: Election within Four Years. Where a county has adopted the local option law by an election held for the purpose throughout the county, a city of less than 2,500 inhabitants, which participated in the election, is hound by the law for the period of four years though it may within that period attain 2,500 inhabitants. Such city could not on attaining 2,500 inhabitants within four years resubmit the question and annul the local option law within its boundaries.</p>

— Hon. L. B. Wood-side, Judge. MeNearney was authorized to solicit insurance for defendant and to tell the people the terms of the policy. This malees his fraudulent statements the act of the Company. Greer v. Bank, 128 Mo. 574; Gentry v. Insurance Go., 15 Mo. App. 215; Hart y. Insurance Co., 27 L. R. A. 86; Brown v. Assurance'Co., 45 Mo. 221.

Louis City Circuit Court. — Now. Horatio D. Wood, Judge. Decebe eoe plaintiff in couet of appeals. (1) The defendants- are not using the premises in such manner as to violate the alleged restriction. The work of a physician is not business within the meaning of the restriction.

— No». W. N. Evans, Judge. (1) Plaintiffs have failed to prove the contract alleged in their petition, viz.: one contract with the three plaintiffs jointly to haul logs and saw them into lumber at $7 per thousand feet. Under the pleadings and evidence plaintiffs were not entitled to recover, and the court should so have instructed the jury on defendant’s motion. 9 Cyc., 704; Clements v. Yeates, 69 Mo. 625; Wonderly v. Christian, 91 Mo.

<p>1. PROHIBITION: Right of Appeal: Void Ordinance. A writ of prohibition will not he granted to prevent a proceeding where the same relief can be granted on appeal or writ of error. Under section 5937, Revised Statutes 1899, an appeal will lie from a judgment of a police judge in a city of the fourth class convicting a person of the violation of a void ordinance of such city and therefore prohibition will not lie to prevent the prosecution of such person.</p> <p>2. -: -: Multiplicity of Suits: Void Ordinance. Where a writ of prohibition was sought to prevent the prosecution of the relator for violation of an ordinance of a city of the fourth class, claimed to be void, the fact that in his suggestions, filed for the preliminary rule, he stated he would be subjected to successive prosecutions, did not warrant a granting of the absolute writ where that allegation was denied and no proof offered in its support.</p> <p>‘3. -;-: Cities of the Fourth Class: Regulating Nuisances: Void Ordinance. A city of the fourth class under sections 5958 and 5964, Revised Statutes 1899, is given power to control the erection and construction of chimneys; an ordinance of such city declaring a smokestack less than fifty feet high to be a nuisance and providing a penalty for its erection, is not so palpably invalid that the prosecution of one for its violation, in the police court of such city, will be prohibited, though whether such ordinance is valid or not is not determined.</p>

— Ron. A. W. Lin- , - coin, Judge. (1) The information in this cause is indefinite, vague and uncertain as to the charge against defendant, in this that it fails to allege any usurious intent on part of defendant. It fails to state that any agreement was made by defendant and O. A. Springfield, whereby any loan of money was made to O. A. Springfield, by defendant, or any one else, and if there was a contract between the parties it fails to state the terms of the agreement.

— Now. Henry G. Pepper, Judge. The statute on the subject of motions for new trial, section 803, requires that they be filed within four days' after the trial, and the statute is mandatory and a motion filed out of time is a nullity and would not be considered by the appellate court. Bank y. Porter, 148 Mo. 183; Maloney y. Railroad, 122 Mo. 115; St. Joseph y. Robison, 125 Mo. 1; Allen y. Brown, 5 Mo. 323; Welsh y. St. Louis, 73 Mo. 71.

— Hon. F. G. Johnston, Judge. One track of a steam railway in an alley where no sidewalks would be required, the alley being sixteen feet wide, was held to be a monopoly of the alley. Sherlock y. Railway, 1'42 Mo. 172. Again this court held that where an ordinance required the operations of a horse railway every fifteen minutes, in Olive alley, which was twenty feet wide, it was a monopoly of the .alley. Watson v. Railway, 69 Mo. App. 548.

— Hon. F. G. Johnston, Judge. The rights of exemption must be determined by their status at the time of the issuance of the writ of attachment. Caldwell v. Renfro, 99 Mo. App. 381. The wife only claims for the husband and she cannot claim for him unless he has abandoned, or absented himself from his usual place of abode, so that the ordinary process of law could not be served on him. Steele v. Leonori, 28 Mo. App. 681.

— Hon. F. G. Johnston, Judge. (1) This rice being’shipped “f. o. b. Neosho” was at the seller’s risk and he must suffer any loss or damage in transit. “The initial letters f. o. b., in contracts of sale where the property is to be transported, mean free on board the cars at a designated place whether that be the initial point of shipment or final destination.

— No». J. 0. Sheppard, Judge. (1) Maddox’s instructions as to piling the stacks were proper, and he had the right to intrust the execution of them to his employees. Forbes v. Dunna-vant, 198 Mo. 209; Ryan y. McCully, 123 M'o. 636; Brown y. Railroad,- 95 Mo. 277;'Kimmer y. Webber, 151 N. Y. 423; Hussey y. Coger, 112 N. Y. 621, 3 L. R. A. 559; Frazee y. Stott, 120 Mich. 627;. Kreigh y. Westinghouse, 152 Fed. 123.

— No». A. W. IÁn-coln, Judge. (1) Tbe erection of the telephone poles and their maintenance by the telephone company is lawful. E. S. 1899, sec. 1251. If the cutting of the trees was necessary to the maintaining of proper service by the company then the cutting was lawful, even though the tree was injured thereby, such injury being unavoidable. Gay v. Telephone Co., 12 Mo. App. 485.

<p>CRIMES: Forcible Entry and Detainer: Prima-Facie Case. In the prosecution of a defendant for taking and keeping possession of real estate by actual force and yiolence, contrary to the provisions of section 2151, Revised Statutes 1899, the evidence showed that a judgment had been rendered against the defendant for possession of the premises in question, and, while he was absent from home, his family was dispossessed by the constable under a writ of restitution and the doors of the house fastened up. Before the defendant returned, other members of his family opened the house and moved the defendant’s goods and themselves hack into it, without his knowledge. Held, the evidence was insufficient to support a verdict of guilty.</p>

<p>APPELLATE PRACTICE: Timely Exception: Involuntary Non-suit. At the conclusion of the plaintiff’s testimony the trial court directed the jury to return a verdict for the defendant, the plaintiff took a nonsuit with leave and filed his motion to set the same aside, which motion was overruled and exceptions saved. The plaintiff saved no exception to the peremptory instruction to find for defendant and for that reason the case cannot be reviewed on its merits.</p>

— No». Jas. T. Neville, Judge. The plaintiffs were entitled to their commission, when they found a purchaser ready, willing, and able to purchase the property, and a written contract was unnecessary between plaintiff and defendant. Young y. Ruhwedel, 119 Mo. App. 231; Love y. Owens, 31 Mo. App. 501; Haden y. Grillo, 35 Mo. App. 654.

<p>Appeal from Douglas Circuit Court. — Eon. John T. Moore, Judge.</p>

— No». F. 0. Johnston, Judge. The court should have given the peremptory instruction for plaintiff. The position of the defendant at the trial was that a verbal agreement had been made •with, him by the agent of plaintiff whereby plaintiff was to furnish the instruments free with the tuition. According to his testimony this promise was antecedent to the drafting and signing of the contract.

— No». J. 0. Sheppard, Judge. (1) Plaintiff’s instructions were erroneous in declaring it to be the duty of defendant to furnish a roadbed, etc., safe, “so far as human skill, diligence and foresight could provide.” No such duty was. imposed by the law. Magrane v. Railroad, 183 Mo. 119; Freeman v. Railroad, 95 Mo. App. 100; Robinson v. Railroad, 103 Mo.

— Eon. F. O. Johnston, Judge. . (1) An indictment is not good unless it charges in detail the facts necessary to put the local option law in force, or makes the general charge that such law “has been adopted and is in force within the county on the day on which the offense is charged.” State y. Searcy, 39 Mo. App. 407; State y. Prather, 41 Mo. App. 458; 'State y. Hutton, 39 Mo.

— No». J. 0. Sheppard, Judge. The plain and manifest intent of Lorenz is to devise a life estate to Ms daughter Anna and the remainder to her heirs (children). (1) Even the words “desire,” “request,” “recommend,” “hope,” etc., when they come from a testator who has the power to command, are often construed as commands, clothed merely in the language of civility. Chiles v. Bartleson, 21 Mo. 344; Munro v. Collins, 95 Mo. 33; Erickson v. Wil-Hard, 1 N. H. 217.

— Hon. W. N. Evans, Judge. Whether plaintiff willfully or ignorantly misrepresented the number of acres he was selling to appellant is wholly immaterial. The amount in either case may be recovered back in an action at law in the nature of an action for money had and Received. 1 Beach, Modern Law of Contract, sec. 660, and cases cited; Budd v. Eyerman, 10 Mo. App. 437; Ashley v. Jennings, 48 Mo. App. 142; Davis v. Krum, 12 Mb. App. 279; Yater v. Hinds, 24 Mo. App. 619.

— No». John T. Moore, Judge. Tbe extension of time by tbe plaintiff was a sufficient consideration for tbe giving of additional security by tbe defendant. Cox v. Sloan, 158 Mo. 411; Deere v. Marsden, 88 M'o. 512; Crawford v. Spencer, 92 Mo. 498. It cannot justly be regarded as a splitting of tbe cause of action where tbe mortgagee sues in replevin for tbe possession of tbe property mortgaged, and then brings a separate and distinct suit for tbe balance due on tbe debt.

— Hon. Henry C. Riley, Judge. Plaintiff Brown purchased the land long after the railroad was constructed and in operation, and knew all the facts and circumstances surrounding the situation. He was not entitled to any consequential damages which resulted to. the tract of land by reason of the location of the road over it, and plaintiffs? second instruction, under the facts in the case, on the measures of damages was wrong.

<p>APPELLATE PRACTICE: Bill of Exceptions: Record Proper. On an appeal by an interpleader from the action of the trial court in sustaining a motion to dismiss bis interplea, where the record proper does not show that a bill of exceptions was filed, the appeal will be dismissed.</p>

<p>Appeal from New Madrid Circuit Court.- — Hon. Henry 0. Riley, Judge.</p>

— Hon. F. C. Johnston, Judge. (1) The law requires that notice of a local option election shall be given by publication in some newspaper published in the county for four consecutive weeks, that is twenty-eight days, and an election held without the require^, notice is illegal and void. Under the local option law it is necessary in giving this notice, if given in a weekly paper, to have five insertions or five publications. State v. Dobbins, 16 Mo.

— No». John T. Moore, Judge. The court should have sustained the defendant’s demurrer to the petition of the plaintiff. The petition showed, on its face, that the deed in which the condition sued on was incorporated, was the joint deed of Alfred Ellis and Oma Ellis and that one only of the two cove-nantees complained of the breach. 15 Enc. PI. and Pr., pp. 529, 530; Rainey v. Smizer, 28 Mo. 310; Thieman v. Goodnight, 17 Mo.

<p>INSURANCE: Lightning Insurance: Prlma-Facie Case. In an action on an insurance policy to recover for the loss of a colt alleged to have been killed by lightning, where the evidence showed that there was a thunder storm and shortly afterwards the colt was found dead a few feet from a wire fence, hut there was no evidence on the body of the colt nor on the fence to show that either was struck by lightning, the evidence was insufficient to make out a case.</p>

— No». Henri/ G. Riley, Judge. (1) It is tbe duty of tbe, materialman to inquire bow far tbe materials are proper in quality and quantity for tbe building be is furnishing materials. And the law does not relieve tbe materialman from making inquiry into the nature of tbe building he proposes to furnish materials. Phillips on Mechanic’s Liens (3 Ed.), sec. 161. (2) Tbe court committed error in overruling tbe application of defendants for continuance.

— Hon. James T. Neville, Judge, It is the settled law of this State that an attorney at law, has no authority as such, to compromise any claim of his client for less than the full amount.' It is equally well settled that an attorney, if empowered to do so, may mate a settlement binding his client. Bay v. Trusdell, 92 Mo. App. 383.

<p>1. PRACTICE: Inconsistent Theories. Where a plaintiff, to whose action the defendant filed a counterclaim based upon a contract, asked and was given an instruction authorizing a verdict for plaintiff on the counterclaim unless the defendant had shown a “substantial compliance” with his contract, he was not in a position to ask other instructions requiring an exact .compliance on the part of the defendant before the latter could recover on his counterclaim; that would he submitting instructions on inconsistent theories.</p> <p>2. -: Verdict: Definite Findings. In an action on promissory notes to which action the defendant filed a counterclaim for damages, a verdict by the jury finding that the amount due the defendant on the counterclaim “was equal to the amount of the notes sued on by plaintiff,” was sufficiently specific and was equivalent to a finding of the amount due on the notes and finding a like amount to be due on the counterclaim.</p> <p>3. -: Evidence: Loss of Crop. A tenant leased a tract of land for three years with a stipulation in the lease that he should plant a certain portion of the ground in strawberries and in case the land should be sold before the expiration of ihe lease he should be paid the value of the strawberry patch. After the first year the landlord sold the place and the tenant yielded possession and brought suit for damages to recover the prospective profits on the strawberry patch for the ensuing two years of which he had been deprived by the sale. Held, evidence offered by the lessor tending to show a destruction of the strawberry crop by flood one season and the actual yield of another season, was admissible.</p> <p>4. -: -: Latent Ambiguity: Parol Evidence. Where a contract of lease contained a clause relating to a certain strip of land and where the evidence showed there were two strips of land on the premises which answered the description, parol evidence was admissible to show which strip of land was meant.</p>

— No». James D. Fox, Judge. (1) The plaintiff was entitled to a judgment against the respondent for $600, the difference between the amount, awarded him by the commissioners and the amount awarded him by the jury, as prayed for in its motion, and the court erred in overruling the motion. The commissioners awarded him $3,100. This amount he accepted from the clerk on December 22, 1902.

<p>Appeal from G-reene Circuit Court. — Hon. Jas. T. Neville, Judge.</p> <p>The contract is invalid in that it does not sufficiently describe the land sold. Watts v. Thompson, 22 Mo. App. 564; Beckmann v. Mepham, 97 Mo. App. 161; Weil y. Willard, 55 Mo. App. 376; Fox y. Courtney, 147 Mo. 147; Ringer v. Holtzclaw, 112 M'o. 519; Warren v. Mayer Mfg. Co., 161 Mo. 113; Boyd v. Paul, 125 M'o. 9; Kelly y. Thuey, 143 Mo. 422; Johnson y. Fecht, 185 Mo. 344.</p> <p>It is a well-settled principle that oral evidence may be offered to prove the identity of the subject-matter of a written contract. Lawson on Contracts, page 399; Means v. He La Vergne, 50 Mo. 343; Shewalter v. Pirner, 55 Mo. 218; Bates v. Bank of Missouri, 15 M'o. 305.</p>

— Hon. Chas. A. Killian, Judge. Tbe court erred in instructing tbe jury to return a verdict for the defendant: First. Because tbe testimony shows that tbe machine or appliance upon which plaintiff received his injuries was a dangerous one and came within the class of machinery required to he guarded, by section 6433, Revised Statutes 1899. Second. Because the evidence shows that the machine was not guarded, but could have been. Mill sap v. Beggs, 122 Mo.

— Hon. F. G. Johnston, Judge. The alleged promise of defendant sued on in this action in the circumstances detailed by plaintiff and his witness White, is nuda pacta, without consideration and is non-enforcible in law. Sw'aggard v. Hancock, 25 Mo. App. 596; Long y. Towl, 42 Mo. 545; Wright v. Vetter, 54 Mo. App, 384; Moss v. G-reen, 41 Mo. 389; Lamp Co. y. Mfg. Co., 64 Mo. App. 118; German y. Gilbert, 83 M’o. App. 416; Steel v. Johnson, 96 Mo.

— Hon John T. Moore, Judge. While it has often been held by the higher courts of this State that the statutory method of selecting juries is merely directory and that mere irregularities will he overlooked, yet the method adopted in this case has been very emphatically condemned, and the fact that the prosecuting officer was only endeavoring to get good men will not cure the defect.

— Hon. Jas. T. Ne-ville, Judge. (1) The court erred in admission of testimony offered by defendant. In admitting tbe pleadings consisting of the petition and the answer of the defendant in plaintiff’s suit against the railroad company for the value of the same property. That an abandoned pleading is admissible in any case is a holding of the courts of this State comparatively recent. Murphy v. Type Foundry, 29 Mo. App. 544.

— Now,. John T. Moore, Judge. (1) In all civil actions or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by statute. Revised Statutes 1899, sec. 1547. When an appeal is taken from the judgment of a justice of the peace, against the appellant, and on a trial in the appellate court the appellee recovers any sum, the appellant shall pay the costs in both courts.

— Eon. F. O. Johnston, Judge. (1) The first error complained of is that the court erred in refusing- to admit competent and relevant testimony. To-wit: the testimony of defendant Locke, and refused to admit in testimony specimen copies of said books showing- them not to be-what they were represented, when defendant has especially pleaded that the books were deficient and not as represented.

Original petition for writ of certiorari in proceeding to revoke dramshop license. Order oe county court revoking license set aside. Statement. — On February 4, 1908, the couuty court of Montgomery county granted to relator, W. H. Arnold, a license to keep a dramshop on lot 7, block 5, in the city of Wellsville, in said county, for a period of sis months.

Louis City Circuit Court. — No». Bolt. M. Foster, Judge. The court erred, in permitting plaintiff to refresh Ms memory from the memorandum made by Messrs. Fritsch and Purdy. The memorandum was of facts of which the witness had no independent recollection, and he could not therefore have testified to the facts as matters of recollection. His testimony- in this respect was the veriest hearsay. Rose v. Rubeling, 24 Mo. App. 369.

— Hon. Henri/ 0. Riley, Judge. (1) Respondents’ petition fails to state a canse of action, and the ore tenus demurrer should have been sustained because said petition fails to state that at the time Duncan collected $1,000, he was duly appointed, qualified and acting guardian and curator of said minors.

— Eon. Henry G. Riley, Judge. It is reversible error for the prosecuting attorney to comment in his argument to the jury, upon facts not in evidence. State v. Lee, 66 Mo. 167; State v. Pagels, 92 Mo. 311; State v. Woolard, 111 Mo. 248; State v. Furgeson, 152 Mo. 99. Statement. — At the January, 1906, term of tbe Cape Girardeau Circuit Court, defendant was tried by a jury and convicted of a violation of section 8011, of tbe dramshop act.

<p>Appeal from Pemiscot Circuit Court. — No». Eenry G. RileyJudge.</p>

— Son. F. G. Johnston, Judge. (1) If money is found in the-possession of garnishee the court must order the garnishee to pay the same into court and final judgment should not be rendered until this is done. R. S. 1899, sec. 3452; Rucking v. Mc-Mahan, 76 Mo. App. 372. (2) The judgment in this case is irregular and should be set aside. Orvis v. Elliott, 63 Mo. App. 96; Jameson v. Kinsey, 75 Mo. App. 198; Bank v. Bredow, 31 Mo. 523.

— No». Henry G. Riley, Judge. (1) It is the duty of the materialman to inquire how far the materials are proper in quality and quantity for the building he is furnishing materials. And the law does not relieve the materialman from making inquiry into the nature of the building he proposes to furnish materials. Phillips on Mechanic’s Liens (3 Ed.), sec. 161. (2) The court committed error in overruling the application of defendants for continuance.

<p>Opinion by Nortoni, J.</p> <p>1. PLEADING: Running Account: Objections to Petition After Judgment: Aider of Petition by Answer. In an action on an account where the petition alleged that the plaintiffs sold and delivered to the defendant “goods, wares and merchandise” of a certain value, an itemized statement of which was attached to the petition, consisting of a series of items such as the following: “March 9, to merchandise by Chris Surface.. $3.00,” the petition was insufficient if attacked before judgment in the trial court, but where the answer admitted that there was a running account between the parties during the time stated, the petition thus aided by the answer was good after judgment.</p> <p>2. -: -: Bar to Another Action. In such case another action on account between the same parties for the value of merchandise sold on the same dates would be barred because after judgment all intendment must go in aid of the pleading.</p> <p>Bland, P. J., dissenting.</p> <p>3. -: -. Under the provisions of section 630, Revised Statutes 1899, Annotated Statutes 1906, in an action on an account, the account filed with the petition is a part of the petition itself.</p> <p>4. -: -: Objections to- Petition After Judgment. Where a petition wholly fails to state a cause of action, advan-. tage may he taken of it by motion in arrest or by calling the attention of the court to it for the first time on appeal.</p> <p>5. -: -: Alder of Petition by Answer. In an action on account where the petition alleged that the plaintiffs sold and delivered to the defendant “goods, wares and merchandise” of a certain Value, an itemized statement of which was attached to the petition, consisting of a series of items such as the following: “March 9, to Merchandise by Chris Surface... $3.00,” the petition was fatally defective and advantage of the defect could be taken after judgment and such petition was not aided by an answer which admitted that there was a running account between the parties on the dates mentioned -in the petition, but contained a denial of the correctness of the account.</p>

— Hon. F. G. Johnston, Judge. The information is sufficient. It follows the language of the statute, section 1988, Revised Statutes 1899. State v. Pruett, 61 Mo. App. 156; 22 Cyc. 378, 379, 380. Defendant had no right to torture, maim, wound or kill the hogs in order to protect his growing crop, for the reason that the statute sets out the manner and means by which a person shall protect his crop. R. S. 1899, sec. 3295.

Louis City Circuit Court. — Eon. James F. Withrow, Judge. (1) The care required of the automobile operator is commensurate with the risks to which he exposes others on the highways, and demands a vigilant watch and stopping when danger is imminent. McPern v. Gardner, 121 Mo. App. 1; Ward v. Meredith, 220 Ill. 66; Christy v. Elliott, 216 Ill. 45; Strand v. Grinnell Automobile Co. (Iowa), 113 N. W. 488; Shinkle v. McCullough, 116 Ky. 960.

<p>Appeal from Pemiscot Circuit Court. — Hon. Henry 0. Riley, Judge.</p>

— Son. Argus Good, Judge. (1) Instruction number two is erroneous in that it permitted a recovery under section 2865 of tbe damage act, while the acts complained of, the proofs and instructions, brought the case under section 2864, if there was any liability at all, which we deny. Gormley v. Transit Co., 103 S. W. 1147; Casey v. Railroad,' 103 S. W. 1146; Rafferty v. Railroad, 15 Mo.

«Appeal from New Madrid Circuit Court. — Hon. Henry 0. Riley, Judge. The point where the animal was struck was right at the apes of the connecting track of the New Madrid branch of the Cotton Belt and the railroad of the appellant, along side of which runs a switch belonging to appellant, which connects with its road north of its apex.

— Now. Henry 0. Riley, Judge. (T) The court erred in permitting plaintiff to offer any testimony whátever under the pleadings filed in this case. R. g. 1899, sec. 1412; R. g. 1.899, sec. 3852; R. g. 1899, sec. 3853; Bank v. Doak, 75 Mo. App. 332; Dufin v. Railroad, 70 Mo. 661; Moffit-West Co. v. Crider, 124 Mo. App. 109; Rechnitzer v. Voglesang, 117 M'o. App. 148; Beall v. Graham, 125 Mo. App. 38.

Eon. Benj. F. Davis, Judge. . Appellant complains that the instructions given on behalf of respondent were erroneous because they ignored a possible contract.

<p>PRACTICE: Judgment: Verdict Must Follow Judgment, In an action for unlawful detainer where the petition alleged the monthly rents and profits to he $12.50 and the jury rendered a verdict for one cent damage and $87.50 for monthly rents and profits, an entry of judgment hy the court that the plaintiff recover $175 damage “for taking and detention of the premises,” was error. The verdict did not follow the judgment, although the court was authorized to render judgment for double the damages assessed.</p>

— Mon. Chesley A.. Mosman, Judge. (1) Defendant’s demurrer to the evidence should have been sustained. Shirts v. Overjohn, 60 Mo. 305; State v. Brooks, 99 Mo. 142; Houston v. Railroad, 118 Mo. App. 470. (2) The master was not an insurer of his- life or safety while employed by it.

— Eon. Francis H. Trimble, Judge. (1) The act alleged does not constitute a sale, because: (a) It is elementary that to constitute a sale of personal property there must be a proper subject, a fixed price and a consent of the contracting parties, and where one of those elements is lacking there is no sale. Cunningham v. Ashbrook, 20 Mo. 554; Nance v. Met-calf, 19 Mo. App. 183; Peycke y. Ahrens, 98 Mo. App. 456; Marten y. Mill Co., 49 Mo.

--Eon. George W. Wanamalcer, Judge. (1) It was error for the court to give instruction numbered 1 on behalf of the State; the instruction is broader than the complaint. Pattison’s Instructions in Criminal Cases, sec. 5, p. 34; State v. Hays, 36 Mo. 80; 2 Ency. Plead. & Prac., 167. This rule also applies in civil cases. Glass v. Gelvin, 80 Mo. 302; Brown v. Railroad, 80 Mo. 460; Moffatt v. Conkling, 35 Mo. 457; Camp v. Heelan, 43 Mo. 591; 2 Ency.

— Eon. Nick M. Bradley, Judge. '(1) It was Roark’s duty to disclose to the surety company any fact, materially affecting the risk, coming to his knowledge prior to his actual notification that the application had been accepted by the surety. Bank v. Owen, 101 Mo. 582; Harrison y. Insurance Co., 8 Mo. App. 41; Bank y. Traube, 6 Mo.

— Hon. Howard Gray, Judge. (1) Appellant contends that the earth and rock would confine the fumes of the powder, and that it would so remain until the earth was stirred up in the course of removing it. Much evidence was also to the effect that until the earth in which the powder fumes was confined was stirred up and the fumes liberated into the atmosphere, that an air sail would be of no use as it could not remove the fumes.

— No». Jackson L. Smith, Special Judge. (1) The original bond was void by reason of false representations in the application therefor. Savings & Loan Co. y. Guarantee Co., 183 U. S. 402. (2) The renewal of the bond was void by reason of false statements in the employer’s statement therefor. Van Cleve y. Casualty & Surety Co., 82 Mo. App. 668; M'cQuiddy y. Brannock, 70 Mo. App. 550.

— Hon. Charles A. Denton, Judge. . (1) The purchaser of mortgaged premises does not personally assume the payment of the mortgage debt, unless it is clearly 'assumed by a recital in the deed, or proved to have been expressly agreed to be paid by the purchaser as a part of the purchase price of the premises. Keifer v. Shacklett, 85 Mo. App. 449; 15 Am. and Eng. Ency. of Law (1 Ed.), p. 832; 1 Jones on Mortgages (3 Ed.), sec. 748.

— Hon, Henry L. McOune, Judge. (1) Did plaintiff prove that defendant owned or maintained the wires in question, and if so was that issue fairly submitted to the jury? (2) The issue submitted in plaintiff’s instruction was not the issue made in his petition. (3) There was no evidence of knowledge or notice of this wire by defendant. (4) What was the proximate cause of the accident? Luehrman v. Laclede Gas Light Co., 127 Mb. App. 213; 104 S. W. 1128.

— Eon. Eenry M. Barney, Judge. (1) Premises abut upon a street, road, or other premises where no other street, road, or land intervenes. 1 Am. and Eng. Ency. Law, page 222; Holt v. City Council, 127 Mass. 408. “Doubtless it is true that the words bounding and abutting have no such inflexible meaning as to require the lots assessed or injured to touch the improvement, though the usual meaning of the words is that the things spoken of do actually adjoin.” 1 Am. and Eng. Ency.

— Son. Edward P. Gates, Judge. (1) Plaintiff has failed to prove a case, based either npon the particular written contract, stated in the petition, or the oral agreement to insure, indefinitely suggested in the reply.

— Hon. E (hoard E. Porterfield, Judge. The single question, on this appeal is, did the Marion State- Bank ratify the shipment in its name by Palmer, of the cattle, by the action of the Marion Statet Bank receiving the proceeds of the cattle. We affirm that, by the act of receiving the proceeds, the defendant Marion State Bank did ratify the shipment of the cattle. Bank v. Lumber Co., 60 Mo. App. 255; McLachlin v. Barker, 64 Mo. App. 511; B'ohlman v. Rossi, 73 Mo.

— Now. James E. Goodrich, Judge. (1) This instruction was very properly refused because it singled out one particular fact in the case and gave prominence to it and ignored and obscured all other facts in the case, and instructed the jury that if such fact were established they should render their verdict for defendant, regardless of all other facts.

— No». Frank P. Walsh, Special Judge. (1) Tbe Davis-Page people paid the plaintiff, the Campbell people, between December 4, 1905, and February 24, 1906, $1,654.94, which was a general account and covered the amount in question. (2) The plaintiff was doing a general business with the Davis-Page people and had a general account with them and furnished material for a number of other jobs besides the one in question.

— Hon. Francis H. Trimble, Judge. In the cases of Penningroth v. Penningroth, 71 Mo. App. 438, and Lambert v. Lambert, 109 Mo. App. 19, the court held that where plaintiff, his wife, had sufficient' means for her support and to carry on her litigation, she was not entitled to alimony pendente lite, although on final trial on the merits she might recover alimony, notwithstanding her separate means.

— No». William B. Teasdale, Judge. (1) Upon the record in this case it should be transferred to the Supreme Court. State ex rel. v. Smith, 177 Mo. 69. (2) Upon the merits it is submitted that the judgment should be reversed. Schoenberg v. Field, 68 S. W. 945; 95 Mo. App. 241.

— Non-. Nick M. Bradley, Judge. .(1) Plaintiff on-being compelled to pay off tbe judgment against McAlister in order to protect its property, became subrogated to all tbe rights of tbe creditor, Walden, and to all tbe securities given to tbe National Surety Company.

— No». E. W. Hinton, Special Judge. (1) In the absence of a showing of other indebtedness evidence of payment of money is sufficient to show a discharge of note sued- upon. Massie v. Bowen, 29 Pa. St. 128, 72 Am. Dec. 619; Trumbo v. Fiournoy, 77 Mo. App. 324; Griswold v. Lambert, 89 Me. 534, 36 Atl. 1046.

— No». Alomo D. Burnes, Judge. (1) The order granting the new trial will not be sustained on any ground except the grounds particularly designated. Bradley y. Reppell, 133 Mo. 545, 1 Mo. Am. Stat. sec. 801, and notes; Ittnery. Hughes, 133 Mo. 679, 689; Chitty y. Railroad, 148 M6. 75; McCarty y. Hotel Co., 144 Mo. 402; M'cManamee v. Railroad, 135 Mo. 447; Breeden v. Mining Co., 103 Mo. App. 179.

<p>USURY: Assignment: Bill to Set Aside: Ca.use of Action. An assignment in the nature of a chattel mortgage to secure usur- ' ious interest is invalid and illegal; and a hill to set the same aside need not tender the original debt since such securities are absolutely void.</p>

— Now. Alexander H. Waller, Judge. (1) Tbe duties of assistant car inspector did not require deceased to jump onto and bang upon tbe outside ladder of a car and thus ride through a railroad yards in tbe night time where other cars were standing in dangerous proximity. Bacon v. Railroad, 143 Pa. St. 14. (2) The conduct of deceased in getting upon the side of a moving car in a railroad yards at night was gross negligence.

— Eon. Nat. M. Shelton, Judge. (1) The lotowner is under no duty to the public to keep the sidewalk in front of his premises in repair, and is not liable for failure to do so. Baustiam y. Young, 152 Mo. 325; Norton y. St. Louis, 97 Mo. 541; Blackwell y. Hill, 76 Mo. App. 56. (2) The lotowner is not required to indemnify the city after its payment for damages caused by defective sidewalk in front of his property.

— No». Edward E. Porterfield, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. Plaintiff’s right to recover, if any be has, must be based on the Fellow Servant Act. R. S. 1899, sec. 2873.

— Hon. Louis Hoffman, Judge. (1) The court erred in refusing defendant’s peremptory instruction in the nature of a demurrer to the evidence asked at the close of all the evidence in the case. Bank v. Donnell, 35 Mo. 373. (2) The court plainly committed error in giving plaintiff’s instruction number two. Call v. Mall, 89 M'o. App. 386; Riney v. Hill, 14 Mo. 500; Dunlap v. Kelly, 115 Mo. App. 610.

— Hon. Chas. A. Den-tonSpecial Judge. (1) The defendant filed motion to quasi, tie information, because it failed to charge any offense against defendant under tie laws of tiis State, and tie same siould iave been sustained.

— Now. Louis Hoffman, Judge. (1) Plaintiffs, being tbe admitted owners in fee to the land now being appropriated and used by defendant, are entitled to sue and recover for the value of the land and a judgment for recovery and a satisfaction thereof will vest easement in defendant. Doyle v. Railroad, 113 Mo. 280; McReynolds v. Railroad, 110 Mo. 484; Webster v. Railroad, 116 Mo. 115.

— Hon. Hermann Hrnnibaclc, Judge. (1) Technical rules applicable to pleadings in courts of general jurisdiction are dispensed with in causes originating before a justice of the peace, yet it is essential that the statement of the cause of action should be sufficiently specific to advise defendant of the nature of the claim so that he can make preparations upon an intelligent basis and meet the demand and cause of action suggested by the complaint, and it is error to give…

— Hon. William B. Teasdale, Judge. (1) There was no evidence tending to prove that defendant owned or operated the line of street railway or the car upon which plaintiff was a passenger, and for this reason the court erred in overruling defendant’s demurrer to the evidence in the form of a peremptory instruction for the defendant at the close of plaintiff’s case. Lindsey v. Railroad, 36 Mo, App. 51; Kalten-baugh v. Railroad, 34 Mo. App. 148; Geiser v. Railroad, .61 Mo.

— Son. James H. , 8lover, Judge. The ordinance is invalid and without authority of law in. delegating to the city engineer the power to determine which five feet (what part) of the thirteen-foot sidewalk space was to be paved; on which five feet was a sidewalk to be constructed. This ought to have been determined by the council, in their legislative capacity. They could not delegate this power to the city engineer.

— Hon. Henry L. McOune, Judge. (1) Where there is no agreement to the contrary,, the mortgagee is entitled to the possession of the property on the execution of the mortgage; but where there is an agreement that possession shall remain with the-mortgagor until certain conditions are broken, such, agreement must control and the right of possession will not accrue until one or more of these shall be broken. Drug Co. v. Self, 77 Mo. App. 284; Kerbs v. Zumwalt, 86 Mo.

— Now. Henry L. McCune, Judge. (1) Under the pleadings and evidence of this case, the court committed error in rendering judgment for the plaintiff. (2) The particular, covenant pleaded and relied upon by the plaintiff, did not run with, or bind the defendants’ land, or operate in any way to restrict them in their use of it. 5 Pomeroy on Equity Jurisprudence, sec. 272, note 10; Hall v. Wesster, 7 Mo.

— Hon. Chesley A. Mosman, Judge. (1) The evidence offered by the defendant should have been received. It was admissible under the general denial. State ex rel. v. Rau, 93 Mo. 130; Caven-der v. Waddingham, 2 Mo. App. 551; Manufacturing.Co. v. Hunter, 87 Mo. App. 60; Kersey v. Garton, 77 Mo. 647; Blatz v. Lester, 54 Mo. App. 285; Hudson v. Railroad,-101 Mo. 13; Cordner v. Roberts, 58 Mo. App. 440; White v. Middlesworth, 42 Mo.

— No». James H. Blover, Judge. (1) An appeal from an order of the circuit court granting a new trial brings only the ruling of the trial court on the motion for a new trial to the appellate court for review. Haven v. Railroad, 155 Mo. 224; Connally v. Pehle, 105 M'o. App. 418; Bennett v. Mining Co., 110 Mo. App. 320. Where there is any substantial evidence offered by plaintiff, it is error for the trial court to sustain a demurrer to the evidence or to nonsuit the plaintiff.

(1) A bill in equity seeking to subject specific property of the church association to the payment of appellant’s debt is the proper remedy, and the trustees are the only necessary parties defendant. Bushong v. Taylor, 82 Mo. 660. (2) The appellant’s present action is not barred by the Statute of Limitations because this action was brought within one year after the termination of the first suit.

— Hon. Howard Gray, Judge. It has been the settled law of this State since the case of Buesching v. St. Louis, etc., Co.,. 73 Mo. 219, decided in 1880, that a demurrer to evidence admits not only facts tesitfied to by witnesses, but all of the facts which the evidence tends to prove, etc. Montgomery v. Railroadj 181 Mo. 504; Moore v. Transit Co., 95 Mo.

— Eon. Edward, P. Gates, Judge. (1) In State v. Fullerton, 90 Mo. App. 411', it is decided by this court: “It is essential that all causes, as far as practicable, shall be tried by wholly impartial jurors. This is a guaranty of the Constitution which cannot be disregarded by any court.” Eberle y. Public Schools, 11 Mo. 247; Fine y. Public Schools, 30 Mo. 166; Fulweiler v. St. Louis, 61 Mo. 479.

— Hon. Henry L. MeOune, Judge. When a landlord covenants with, a tenant to make repairs but fails to do so although, repeatedly notified, but when notified repeatedly promises to make repairs but without doing so; and the tenant is injured by reason of the failure of the landlord to repair, the tenant is entitled to recover damages for the injuries sustained by him. Stoetzle v. Swearingen, 90 Mo. App. 588; Roberts v. Cottey, 100 Mo. App. 500; Mancuso v. Kansas City, 74 Mo.

— 12cm. Hugh Dabbs, Judge. (1) The action is to enjoin a trespass on real property, in violation of plaintiff’s alleged right to minpi the same. The petition fails to state that plaintiff, or his assignor was or ever had been in possession of the property, and for that reason fails to state a cause of action. Powell v. Canady, 95 Mo. App. 713, Gildersleeve v. Overstolz, 97 Mo. App. 303. (2) The right to mine this land was in dispute.

— Hon. Charles A., Denton, Judge. (1) The question of whether or not the shredder fulfilled the warranty thereof was for the jury likewise, the question of whether or not there was a failure of consideration for the note sued on in count one was a question for the jury. Where there is any evidence from which a jury might find the fact necessary to a defense, the same should go to the jury. Thomas v. Express Co., 30 Mo. App. 86; Twohey v. Pruin, 96 Mo. 104.

— Hon. Henry L. MoGune, Judge. (1) The court erred in refusing to sustain the demurrer offered by the appellant and its peremptory instruction. There is no evidence to sustain the allegations of the petition. Meriwether v. Railroad, 45 Mo. App. 534 ; Beehan v. Transit Co., 186 Mo. 44; Bond v. Railroad, 110 Mo. App. 138; Peck v. Railroad, 178 Mo. 627; FurTber v. Bolt & Nut Co., 185 Mo. 311; Cogan v. Railroad, 101 Mo. App. 190; Weaver v. Railroad, 60 Mo.

— No». John Q-. Park, Judge. (1) It has been held in a long line of decisions in this state that where a written memorandum of a contract does not purport to he a complete expression of the entire contract, parol evidence may he introduced to show what the entire contract was.

<p>1. NEGLIGENCE: Pleading: Inconsistent Averments: Evidence. Where the statements of a petition are so repugnant to each other that the testimony brought to support them would necessarily be equally repugnant and amount to no support at all, the petition is bad.</p> <p>2. -: -: -: -: Stopping Car: High Speed. Where a petition avers negligence in failing to observe the injured party in time to avoid the injury and also that the speed of the car was so high that it could not be stopped after the discovery of the injured party by reasonable care, in time to avoid the injury, the averments are inconsistent and the petition fatally defective.</p> <p>3. -: -: -: -: -: -: Humanitarian Doctrine. Where the allegation and proof show the car was run at such a rate of speed as to prevent its being stopped before the injury after the discovery of peril, it is error to submit the case to the jury on the humanitarian doctrine.</p> <p>4. -: Evidence: Discovery of Danger: Humanitarian Doctrine. Where the actions of a party on the track indicate he is not aware of his peril the motorman in charge of a street car should use reasonable diligence to stop the car or avert the peril, and his failure to do so is negligence; but the mere fact that a person is on the street with the evident purpose of crossing the track when the car is approaching is not evidence in itself that he intends to place himself in a position of peril.</p> <p>5. -: -: Stopping Car. The evidence relating to the death of a six-year-old girl who undertook to cross the street car track in front of an approaching car is reviewed and the motorman is held to have been free of negligence in failing to stop the car.</p> <p>6. -: Infant: Contributory Negligence. In considering the evidence no negligence whatever is imputed to the deceased, a girl six years old on account of her age.</p>

<p>1. PASSENGER CARRIERS: Freight Train: Extraordinary Stop: Demurrer to Evidence. The evidence relating to the stopping of a freight train whereby a passenger was thrown from'his seat onto the floor of a car is reviewed and held not sufficient to . send the case to the jury since it fails to show any extraordinarily sudden stop or jolt of the train.</p> <p>2. -: -: -: Negligence. A sudden and violent jolt in the stopping of a long freight train will not ipso facto raise a presumption of negligence; and passengers on such trains submit themselves to the inconvenience and danger necessarily attending that mode of conveyance.</p> <p>3. -: -: -: Evidence. The mere evidence of a non-expert that a stop was a “terrible shock” or “a severe shock, sufficient to knock the breath out of me,” are mere conclusions and possess no probative force.</p>

— Hon. Hugh Dabbs, Judge. (1) If damages could bave been proved and recovered under tbe general issue, defendant was es-topped from proving and recovering sucb damages, tbe answer filed not having raised any sucb issue. (2) Said damages being special damages, and being in tbe nature, if not in fact, of a counterclaim, would bave to be specially pleaded. Cobby on Rep., sec. 862; 18 Ency. PI. & Pr., 557; Whitcomb v. Hoffman, 14 Hun (N. Y.) 335; Bateman v. Blake, 81 Micb. 227.

— No». B. G. Thurman, Judge. (1) A statement in a suit before a justice must, “set out tbe facts” constituting tbe cause of action. R. S. 1899, sec. 8852, (2) And tbe sufficiency of sucb statement must appear on its face. McCrary v. Good, 74 Mo. App. 425. (8) Where husband and wife are living apart, her power to charge him for necessaries is not based on tbe doctrine of agency. His liability in sucb case is one created by law. Sauter & Adams v. Scrutchfield, 28 Mo.

— Eon. Nat. M. Shelton, Judge. (1) It was error for the court to refuse defendant’s instruction by way of demurrer to the evidence. (2) This is a case in which the trial court should have required the plaintiff to elect upon which count and cause of action he would proceed. The first count was based upon the violation of the city ordinance, simply and purely.

— Non. William H. Martin, Judge. (1) The two arithmetics were included in the last legally prescribed course of study. The abolition of the commission in 1905 did not, ipso facto, abolish the course of study it had lawfully prescribed, and this course continued until modified or annulled by competent authority. . Potter’s Divarris on Stat. and Constitutions, p. 155, note; State ex rel. v. County Court, 53 Mo. 128.

— Son. Samuel Davis, Judge. (1) The charter of a city is in the nature of a power of attorney and the authority conferred must he carried out in the manner prescribed and when a special method is prescribed for the exercise of a power, this brings the exercise of a power within the provisions of the maxim expressio wnius, etc., and renders nugatory the doing of the thing specified except in the way pointed out. Unionville v. Martin, 95 Mo.

— Now. Henry M. Ramey, Judge. (1) A valid ordinance can be passed only when the city council is assembled and acting as an organized body at a meeting held according to law. Meetings, the one at which this ordinance was introduced, and the one at which it was passed, were not legally convened and the ordinance is invalid. 2 Dillon, Municipal Corp. (3 Ed.), 324; Forry v. Ridge, 56 Mo.

— Éon. Edward P. Gates, Judge. (1) The finding and judgment of the court is contrary to the evidence in that the evidence showed conclusively that there was no demand for the irritant. That the irritant in question, was harmful in its nature, and that it would burn or harm the patient upon its application through the apparatus aforesaid.

Louis City Circuit Court. — Non. Walter B. Douglas, Judge. (1) The court erred in overruling the defendant’s demurrer to the evidence, (a) because no negligence was shown on the part of the defendant; (b) because plaintiff’s own testimony showed that he assumed the risk of any dangers connected with the operation of the machine in question; and (c) because plaintiff’s evidence showed that he was guilty of contributory negligence. Ziegenmeyer v. Goetz, L. & 0. Co., 113 Mo.