Volume 131 — Missouri Appeal Reports

— Hon. Henry C. Riley, Judge. The endorsement of the $3,000 note by Robert L. Taylor to Bettie D. Hempstead upon the payment of the note for $1,342.35 on July 2d, 1904, did not continue the note in force. The note was the joint note of Benjamin R. Hempstead and Bettie D. Hempstead, and the payment by either party extinguished the debt and canceled the note. 2 Parsons on Notes and Bills, p. 237; Williams v. Gerber, 75 Mo. App. 18.

— Eon. Jas. T. Ne-ville, Judge. (1) The uniform holding in Missouri is that any change in the terms of a building contract, even in the course of its execution, -without the surety’s consent, releases his obligation under the builder’s bond. Beers v. Wolf, 116 Mo. 179; Heim Brewing Co. v. Hazen, 55 M'o. App. 277; Taylor v. Jetmore, 23 Mo. 244; Ryan v. Morton, 65 Texas 262; Bragg v. Shain, 49 Cal. 131; Kane v. Thuener, 62 Mo. App. 69; Timmerberg v. Schramm, 71 Mo.

— lion. Jas. T. Ne-ville, Judge. (1) The local camp, No. 3123, was agent of the defendant. Andre v. M. W. A., 102 Mo. App. 377; Bárbaro v, Accidental Grove, 4 Mo. App. 429; McMahon v. Maccabees, 151 Mo. 542. (2) Tbe principal is responsible for the acts of the agent. O’Donnell y. Transit Co., 107 Mo. App. 40; Haebl v. Railroad, 119 Mo. 339; State ex inf. v. Insurance Go., 152 Mo. 38; Collette y. Rebori, 107 Mo. App. 720.

— Hon. Henry G. Riley, Judge. The plaintiff has not declared on the contract of shipment, but has founded his action on the alleged negligence of the defendant in not shipping his mules on the first or “through” freight train; and he must recover, if at all, on such allegation of negligence. The plaintiff is bound by the allegations in Ms petition.

— Hon. Henry C: Riley, Judge. (1) No lien can be acquired unless the materials go into tbe building. Grace y. Nesbit, 109 Mo. 15; Deardorff y. Eyerhartt, 74 Mo. 37; Schulenberg y. Prairie Home Institute, 65 Mo. 295.

— Eon. Eenry G. Riley, Judge. (1) The first issue of fact which the jury was called upon to determine was whether the plaintiff had a contract for one year and if so was he then wrongfully discharged? Not whether he had a year’s contract and was merely discharged. Fink v. Phelps, 30 Mo. App. 431; Wyatt v. Railroad, 62 Mo. 408; Chipley v. Leathe, 60 Mo. App. 15; Jackson v. Boyles, 67 Mo. 609; Crews v. Lockland, 67 Mo. 619.

— Eon. Henry Ü. Riley, Judge. Respondent was not entitled to any damage to the goods attached for the reason that they did not belong to him, but were the property of the assignee in Tennessee when attached and if any damage occurred to the goods by reason of the attachment, such damage would accrue to the assignee and not to the assignor, the respondent herein. St. George’s Society v. Branch, 120 Mo. 226; Cody v. Vaughan, 58 Mo. App. 169; Trust Co. v. Vincent, 77 Mo.

— Hon. F. O.- Johnston, Judge. (1) The claim advanced below by defendant as a ground for tlie striking- out of the amended petition was that it was a departure from the original cause of action. The Supreme Court has announced a test under this statute in determining whether the amendment will be allowed.

— Eon. Walter A. Powell, Judge. (1) Appellant had the right to show that the agent, whom it was claimed was told of the removal of the property from 1213 Broadway to 1620-22 Main street, had no power or authority to make a contract insuring the property in the new' location. That such testimony was admissible is clearly shown by Miller v. Insurance Co., 106 Mo. App. 205.

— Hon. Thos. H. Reynolds, Special Judge. (1) The foundation of the right to a mechanic’s lien is the existence of a contract for work and materials with the owner or proprietor of the property to he charged, or with his agent, trustee, contractor, or subcontractor. R. S. 1899; sec. 4203; Hause v. Thompson, 36 Mo. 450; Hause v. Carroll, 37 Mo. 578; Lumber Co. y. Stepp, 157 Mo. 366; Wilson v. Lubke, 176 Mo. 210; Garrett v. Berry, 3 Mo. App. 197; Barker v. Berry, 8 Mo.

<p>1. CONTRACTS: New Contract: Consideration. Parties to a contract have a right to make a new one and its substitution for the first one is a sufficient consideration.</p> <p>2. TRIAL AND APPELLATE PRACTICE: Instruction: Evidence: Finding. In a trial before the court instructions are of little concern save as they may disclose the theory of the trial. And an instruction omitting hypotheses which one of the parties was entitled to have considered is properly refused. Where the evidence is conflicting but sufficient to support the finding the appellate court will affirm the judgment.</p>

— Hon. Nat. M. Shelton, Judge. (1) The release pleaded by respondent is not conclusive of appellant’s rights, the consideration therein recited is subject to explanation by parol testimony. Harrington v. Railroad, 60 Mo. App. 223; Stewart v. Railroad, 141 Ind. 55, 40 N. El 67; Dolan v. Penn Co., 6 Ind. App. 109, 32 N. E. 802; Smith v. Railroad (Tex.), 82 S. W 788; Heath v. Railroad, 29 Ind.

— Now. J. B. Johnson, Judge. (1) The court erred in refusing to peremptorily instruct the jury to find for defendant at the close of all the evidence in the case. Manufacturing Co. v. Railroad, 117 Mo. App. 453; M'offatt Com. Co. v. Railroad, 113 Mo. App. 544; Woolsey-Stafil Hay Co. v. Railroad, 113 Mo. App. 651. (1) The loss of these goods in the flood of 1903 is no defense, if defendant’s negligence concurred therein.

— No». George W. Wanamalcer, Judge. (1) The trial court erred in disregarding the former opinion of this court in this case. The facts developed in the trial of the case are the same as on the former trial and the decision of the court on the'former appeal becomes the law of this case. Thomas v. Pump Co., 28 Mo. App. 567; Haseltine v. Ausherman, 29 Mo. App. 458; Bevis v. Railroad, 30 Mo. App. 566; Hombs y. Corbin, 34 Mo. App. 397; Lane v. Eailroad, 35 Mo.

' — No». Thomas J. Seehorn, Special Judge. (1) The court erred in overruling motion for new trial as verdict was not justified hy the evidence and not warranted hy the pleadings and the evidence.

— Hon. Henry L. MoGime, Judge. (1) A verdict of $4,000 is excessive where the only substantial injury was an increased rupture which is entirely cured. Wills v. Railroad, 44 Mo. App. 51; Hall v. Water Co., 48 M'o. App. 356; Ross v. Kansas City, 48 Mo. App. 440; Coveil v. Railway, 82 Mo. App. 180; Stoetzele v. Swearingen, 90 Mo. App. 588 ; Dover v. Railway, 100 Mo. App. 330; Dawson v. Transit Co., 102 Mo. App. 277; Heyde v. Transit Co., 102 Mo.

— No». Argus Cox, Judge. (1) The court erred in permitting counsel for plaintiff to state to the jury in Ms opening statement an alleged conversation between plaintiff and the conductor of defendant. The evidence was not a part of the res gestae. Objections by defense were specific, yet the court permitted a detailed statement of incompetent and highly prejudicial testimony.

— Hon. John G. Park, Judge. (1) The mere absence of the guard or shield over the gearing and cogs did not establish negligence per se or show that it was the proximate cause of plaintiff’s injury. Loehring v. Construction Co., 118 Mo. 163, 179. (2) The cogs and gearing of the threader were manifestly not designed as a safe or reasonable repository for the can, and plaintiff had no right to attempt to make such use of them.

<p>Appeal from Jackson Circuit Court. — No». Thomas J. Seehorn, Judge.</p> <p>(1) The court committed error in overruling defendants’ demurrer to the evidence. The defendants were charged with three negligent acts, viz.: (a) negligently loading, (b) negligently covering, (c) negligently exploding a blast. (2) There is not a particle of evidence anywhere in the record showing, or tending to show, any such negligence. A party can not state one cause of action in his petition and recover upon another. Schneider v. Patton, 175 Mo. 684; McCord v. St. Joseph, 181 Mo. 678; McClure v. Feldman, 108 Mo. App. 630; Gibeline v. Smith, 106 Mo. App. 545; Studenroth v. Hammond, 106 Mo. App. 480; McKee v. Railroad, 96 Mo. App. 671. (3) Not only does the evidence fail to show any such negligence as is charged in the petition, but it fails to show any sort of negligence. (4) The court committed error in admitting immaterial, irrelevant and incompetent testimony. (5) Deceased assumed the risk, incident to the work of excavating by blasting, and defendants are not liable. Administrator v. Lime & Cement Co., 113 Mo. App. 338; Brown v. King, 100 Fed. 561. (6) If there was any negligence, it was the negligence of a fellow-servant, and defendants are not liable. All the men were fellow-servants of Knight is established by the following authorities: Schaub v. Railroad, 106 Mo. 74; Hughes v. Fagan, 46 Mo. App. 37; Sheehan v. Prosser, 55 Mo. App. 569; Ryan v. McCully, 123 M’o. 636; 12 Am. & Eng. Enc. of Law (2 Ed.), 505. (7) The verdict of the jury and the judgment of the court were excessive. Matthews v. Railroad, 26 Mo. App. 87.</p> <p>(1) The court committed no error in overruling defendants’ demurrer to the evidence. (2) Furthermore in casting rocks into the public highway defendants were guilty of a trespass without proof of negligence, as was recently decided by this court in Hoffman v. Walsh, 117 Mo. App. 278. In doing this unlawful act they killed one of their own servants. Sackewitz v. Mfg. Co., 78 Mo. App. 144; Blanton v. Dold, 109 Mo. 64; Thompson on Negligence, sec. 3883. The court committed no error in admitting immaterial, irrelevant and incompetent testimony. (3) Defendants’ next assertion that the deceased assumed the risk is not well taken. (4) The claim that the deceased was a fellow-servant of the foreman, Broome, is opposed to the decisions in this State. Moore v. Railroad, 85 Mo. 588. Kelly v. Stewart, 98 Mo. App. 47; Bain v. Foundry and Machine Works, 75 Ga. 718.</p>

Circuit Court. — Hon. Howard Gray, Judge. (1') The defendant was not released from his original liability to pay the $1,000 for the reason that there was no consideration for the extension of time. Harburg v. Kumpf, 151 Mo. 16.

— No». Alexander E. Waller, Judge. (1) The acts of the defendant as complained of in the petition constituted a wrongful and unlawful interference with the plaintiff’s right to pursue his lawful business. The acts alleged in the first count constituted malfeasance, being a systematic and persistent misuse of the defendant’s authority as a municipal corporation, calculated to destroy and destroying plaintiff’s lawful business, and depriving him of his right to engage therein.

— No». John P. Butler, Judge. (1) The evidence fails wholly in establishing any trust. Before a trust can be declared by the court, the evidence of such must be clear and explicit in defining the manner of its disposition, definite as to its beneficiaries. (2) The heir is not the proper party to sue for property belonging to the deceased unless there are no debts, and unless they are all of age and have agreed to the manner of its distribution.

— Hon. Samuel G. Davis, Judge. (1) If a testator “is induced either to make a will or not to change one after it is made, by a promise, express or implied on the part of a legatee that he will devote his legacy to a certain lawful purpose a secret trust is created and equity will compel him to apply property thus obtained in accordance with his promise.” “The trust springs from the intention of the testator and the promise of the legatee.” “The same rule applies to heirs and…

— Hon. Alonzo D. Burnes, Judge. (1) The bond the statute requires on appeal from probate courts in matters of administration, and the bond that plaintiff insists upon in the case at bar, is one conditioned that the appellant “will prosecute the appeal, and pay all debts, damages and costs that may be adjudged against him.” (2) Now, if the bond insisted upon is one to bind the estate, it is altogether unnecessary; for the plaintiff, as the administrator, is already in…

— Now. Henry M. Barney, Judge. (1) When the jury by its verdict found that plaintiff was not entitled to actual damages then the defendant was entitled to a judgment in his favor. (2) The respondent has no legal right to recover exemplary damages unless he suffered actual damages. Hoagland v. Amusement Co., 170 Mo. 343; Mills v. Taylor, 85 Mo. App. Ill; Sutherland on Damages (2 Ed.), sec. 406.

— Eon. Alonso D. Barnes, Judge. (1) There was no evidence to support the answer of defendant as to any false representations made by the agent of plaintiff when the contract of sale was made. The only evidence introduced by the defendant was his own testimony and he only says the goods received by him was of an inferior quality.

— Nora. Samuel G. Davis, Judge. (1) The case was properly tried in the circuit court. The evidence showed that the sale of the farm was not made by the plaintiff or through his efforts. The question as to whether or not the plaintiff was the procuring cause of said sale being made was submitted to the jury, under proper instructions, and the finding was against the plaintiff, and such finding : j conclusive.

— Hon. Edward W. Hinton, Special Judge. (1) The trial court committed error in giving instruction numbered 1, requested by defendants. The averments of the petition were sufficient to raise the issue of defendants’ lack of professional skill and knowledge, and the instruction being to the contrary was misleading and erroneous. Yanhooser v. Beighoff, 90 Mo. 487; Logan v. Field, 192 Mo. 54.

— Non. William O. Ellison, Judge. (1) Tbe preliminary resolution was sufficient. Tbe specifications were on file at tbe time tbe resolution was passed. Bridewell v. Cockrell, 122 Mo. App. 199. (2) The ordinance was not defective because stating that tbe work was that of “grading, paving, guttering, etc.” At most this is merely ambiguous permitting the introduction of parol testimony to show what was intended to he done and what was actually done thereunder.

— Hon. Frank F. Rozzelle, Special Judge. (1) Hon. F. F. Rozzelle was elected to bold part of the April, 1906, term of the circuit court of Jackson county, Missouri, on account of the illness of Hon. William B. Teasdale, the then duly qualified judge of Division No. 3 of said court. Under section 1679, Revised Statutes 1899, said Rozzelle signed the bill of exceptions here filed on October 16, 1906, same being- the October term of said court.

<p>1. JUSTICES’ COURTS: Appeal: Papers: Transcript. It is the duty of the justice upon an appeal to send up the papers on which the suit is based and because he fails to send any particular paper at the time he sends his transcript, does not make it unlawful to send it when his attention Is called to the matter. The rule as to transcripts does not apply.</p> <p>2. -: Statement: Paper: Amendment. Where the paper sued on is indefinite but is sufficient to warrant amendment it may be amended in the circuit court on appeal.</p> <p>3. -: Appeals: Affidavit: Bond: Statute. Under the statutes when a bond and affidavit for appeal have been filed the appeal is considered allowed though there be no entry to that effect, and such appeal should not be dismissed on account of the defective bond and affidavit.</p> <p>4'. SUBSCRIPTION PAPER: Signing: Instruction: Argument: Comment: Error. Certain instructions relating to authorizing the defendant’s name to be signed to a subscription paper are condemned because some are argumentative and others are comments on the evidence; and the error is held harmful.</p>

— Hon. Andrew F. Evans, Special Judge. (1) The motion does not attempt to show diligence on the part of the defendant in attending to the case, neither does it state any facts from which the court could determine whether or not the defendant had a meritorious defense to the cause of action stated in plaintiff’s petition and that the defendant would be benefited by the court sustaining the motion.

— Hon. Shannon G. Douglass, Judge. (1) Can plaintiffs maintain a separate suit for the enforcement of a lien for taxes?

— Now.. Paris C. Stepp, Judge. (1) The trial court erred in refusing to sustain plaintiff’s demurrer to the interpleader’s evidence. This case cannot be distinguished, on the present record, .according to interpleader’s own evidence, from the cases of Lowrence v. Barker, 82 Mo. App. 125; Dry Goods Co. v. Brown, 73 Mo. App. 245, 99 Mo. App. 444; Shoe Co. v. Arnold, 82 Mo. App. 7; Harrison v. Min. Co., 95 Mo. App. 80; Mfg. Co. v. Troll, 77 Mo.

— No». William N. Martin■, Judge. Appellant insists that the case should have been tried upon the issue joined and upon the contract sued upon and upon no other. The appellant, in support of his position, calls the attention of the court to the following authorities: Knapp v. Henley, 108 Mo. App. 353; Harmon v. Enright, 107 Mo. App. 560; Lad v. Williams, 104 M'o. App. 390; Butts v. National Exchange Bank, 99 Mo. App. 168; Hayden v. Grillo’s Administrator, 42 Mo.

— Hon. Howard Gray, Judge. (1) Defendant contends that the objection to the introduction of any testimony under the petition should have been sustained. The better rule is that in dealing with such simple instrumentalities as a ladder the' servant has no right to rely on the promise to repair. And where the tool or appliance is a simple one of this character, and the danger is obvious, the plaintiff has no right to rely upon the promise of the master to repair.

— Hon. Joshua W. Alexander, Judge. Statement. — This is a suit against the Wabash Railroad Company for damages, growing out of the shipment of a valuable trotting mare from Carrollton to Moberly on May 26, 1903. On that date plaintiff was the owner of the mare in question, “Hazel L.” He had her at Carrollton in charge of Joe O’Rourke, his trainer.

— Son. Nat. M. Shelton, Judge. (1) The court erred in refusing a demurrer at the close of plaintiff’s evidence; also at the close of all the evidence. The allegation is that the train stopped and while she was attempting to alight, it suddenly and violently started and she was thrown onto the platform. This allegation is wholly unsupported by the evidence; there was a total failure of proof.

<p>' Appeal from Johnson Circuit Court. — No». Nicholas M. Bradley, Judge.</p> <p>(1) An assignment of an interest in a policy issued by an assessment company is void. Bruer v. Insurance Co., 100 Mo. App. 540; Strode v. Drug Co., 101 Mo. App. 627; Worneck v. Davis, 104 U. S. 924. (2) A portion of a fund cannot be assigned without the consent of the debtor. At best an attempt to do so, only creates an equitable interest in the fund; and can only be enforced if at all by a proceeding in equity. McPike v. McPherson, 41 Mo. 521. (3) Probate courts have no jurisdiction to grant equitable relief, and the probate Court of Jackson county had. no jurisdiction over the subject-matter of respondents demand, because it was purely equitable. Reed v. Crissey, 63 Mo. App. 184; Patterson v. Booth, 103 Mo. 402; State ex rel. v. Jones, 53. Mo. App. 207; Gamber v. Richardson, 77 Mo. App. 463; Church v. McElhinney, 61 Mo. 542, 543; Wieber’s Administration Law, sec. 151. (4) The probate court for Jackson county had no jurisdiction to allow respondents claim as a demand against the estate of Coleman O. Jenkins, or to make any order touching the same, for the following reasons: First — Because respondents claim was not presented to the administrator in writing as a demand against'said estate, as required by sections 188 and 189, Revised Statutes 1899. Second — Because respondents, nor neither of them, made oath in open court, or filed the affidavit of both or either of them with their claim, as required by section 195, Revised Statutes 1899. Third — Because respondents did not deliver to the administrator, a written notice, containing a copy of the demand, nor give any notice of their intention to ask that the same be allowed, as required by section 197, Revised Statutes 1899. Fourth — Because the paper writing read in evidence and relied upon as an assignment, was absolutely void, and the court had no jurisdiction to allow any demand, or make any order directing its payment. Fifth — Because the order made by said court was purely equitable, the entire proceeding was an equitable one, and the probate court had no jurisdiction to entertain an equitable proceeding. R. S. 1899, secs. 188, 197, 294; Peter v. King, 13 Mo. 143; Bryan v. Mundy, 14 Mo. 461; Bank v. Ward, 45 Mo. 310; Pfeffer v. Suse, 73 Mo. 256; Dorn v. Parsons, 56 Mo. 602; Wine Co. v. Caspard, 11 Mo. App. 384; Berk v. Suman, 79 Mo. 527; Price v. Margarle, 25 Mo. App. 205; Williams v. Gerber, 75 Mo. App. 30; Walkman v. Schick, 102 Mo. App. 137; Fitzpatrick v. Stephens, 114 Mo. App. 501; Langston v. Canterbury, 173 Mo. 130. (5) Judgments of inferior courts are not good unless the record shows affirmatively that every fact necessary to give it jurisdiction of the person and subject-matter exists in its favor. Peter v. King, 13 Mo. 113; Schell v. Island, 15 Mo. 290; Ex parte v. O’Brien, 127 Mo'. 188; Strouse v. Drennan, 11 M'o. 289; State v. Metzer, 28 Mo. 65; State ex rel. v. Billion, 27 Mo. 103; Rohland v. Railway, 89 Mo. 130; Gibson v. Vaughn, 61 Mo. 118; Wernse v. McPike, 100 Mo. 188. (6) There must be a substantial compliance with the statutes respecting administration, before the probate court has jurisdiction, for the statutory provisions are prerequisites required to be observed before the probate court can allow a demand, or hear any evidence in regard to it. Dorn v. Parsons, 56 Mo. 602; Langston v. Canterbury, 173 Mo. 128; Williams v. Gerber, 75 Mo. App. 30; Bryan v. Mundy, 11 Mo. 161; Wine Co. v. Caspari, 11 Mo. App. 381; Peter v. King, 13 Mo. 113; Pfeifer v. Suse, 73 Mo. 255; Bank v. Suman, 79 Mo. 527; Bank v. Ward, 15 Mo. 310; Wood v. Booth, 60 Mo. 516. We ask the court to fully read this case. Gray v. Railway, 81 Mo. 135. (7) The probate court had no jurisdiction to order the money in the hands of the administrator to be paid to any one other than the ones on whom the law casts it. If one other than the heirs claimed the funds, or any part of them, they must first establish their claim in the circuit court. State ex rel. v. Jones, 53 Mo. App. 207; Gerber v. Richardson, 77 Mo. App. 163; Woerner’s Administration Law, sec. 151. (8) Want of jurisdiction in the probate court may be taken advantage of at any time, even after judgment. Henderson v. Henderson, 55 Mo. 511; Graves v. McHugh, 58 M'o. 500; Bray v. Marshall, 66 Mo. 122; Butler v. Lawson, 72 Mo. 215. (9) If the judgment of the Jackson probate court was void, it constitutes no defense to respondents in this proceeding and will be treated as a nullity in a collateral proceeding. Hope v. Blair, 105 Mo. 85; Hardware & Man. Co. v. Land, 54 Mo. App. 147; Decker v. Lid-well, 3 Mo. App. 586; Church v. McElhinnie, 61 M'o. 540; Meyer y. Hartman, 14 Mo. App. 30.</p> <p>(1) The action of the probate court of Jackson county on the application of Charles R. Creasy, administrator of the estate of Coleman O. Jenkins, deceased, in allowing the-claim of the defendants.for the sum of |2,880 (the money which plaintiffs sue for herein) against the estate of the said Jenkins, had the force and effect of a judgment of a court of general jurisdiction and is a complete defense to.this action. Moody v. Pay-ton, 135 Mo. 482; Cooper v. Duncan, 20 Mo. App. 355; Clark y. Tkias, 173 Mo. 628; Clark v. Betelheim, 144 Mo. 258; M'unday v. Neiper, 120 Mo. 417; R. S. 1899, sec. 192. (2) Affidavit to a claim is not necessary to confer'jurisdiction to allow claims against an estate. Robbins v. Boulware, 190 Mo. 41; In re Estate of Davidson, 100 Mo. App. 263. (3) Where the record does not show whether the statutory affidavit was made or not, but is silent, the court will presume that it was made. Wood v. Flannery, 89 Mo. App. 642; Millón y. Ohnsong, 10 Mo. App. 437; Faith v. Myers’ Adm’r, 27 Mo. 570; Kincheloe v. Gormon’s Adm’r, 29 Mo. 422. (4) Even on appeal, if it does not appear that the statutory affidavit was made, the court will not reverse a judgment in favor of the claimant and send the case back that the affidavit may be superadded. Faith v. Myers’ Adm’r, 27 M'o. 570; Kincheloe v. Gorman’s Adm’r, 422; Wood v. Flannery, 89 Mo. App. 632. (5) Probate courts have jurisdiction to hear and allow demands against estates, whether the same be legal or equitable. Hoffman v. Hoffman’s Ex., 126 Mo. 486; Church v. Church, 73 Mo. App. 424; Maginn y. Green, 67 Mo. App. 619; Grimes v. Reynolds, 94 Mo. App. 585; Fisher v. Clopton, 110 Mo., App. 668. (6) The judgment of the probate court at Kansas City, approving the final settlement of the estate of Coleman O. Jenkins, deceased, was a final judgment of a court of general jurisdiction and concludes the plaintiffs in this action, regardless of any other proposition in the case. Jones v. Brinker, 20 Mo. 87; State to use v. Roland, 23 Mo. 95; Picot v. Bates, 47 Mo. 390; Lewis v. Williams, 54 M’o. 200; Shultz v. Kirtley, 62 Mo. 417; Woodworth v. Woodworth, 70 Mo. 601; Yanbibber v. Julian, 81 Mo. 618; Patterson v. Booth, 103 Mo. 403; State ex rel. v. Gray, 106 Mo. 526; Smith v. Aanger, 150 Mo. 437; State ex rel. v. Carroll, 101 Mo. App. 110.</p>

— New. Howard Gray, Judge. (1) There is no bill of exceptions, but we are entitled to have this court pass upon our objection that the petition does not state facts sufficient to constitute any cause of action. The answer directly raises the question. R. S. 1899, sec. 602.

— No». Hugh .Dabbs, Judge. (1) A bill in equity to enjoin tbe interfering with a lot in a cemetery ground may be brought in the name of the party owning the lot or relatives of deceased buried thereon. Boyce v. Kalbaugh, 47 Md. 334, 28 Am. Rep. 464; Davidson v. Reed, 111 111. 167, 53 Am. Rep. 613 ; 6 Cyc. 72, sec. 8, par. 182, note 70; Pierce v. Cemetery, 10 R. I. 227, 14 Am. Rep. 667; Keys v. Koupel, 75 Am.

— Hon. Walter A. Powell, Judge. (1) Tke trial court erred in overruling tbe objection of defendant, tbe Kansas City Home Telephone Company, to the introduction of any evidence, for the reason that plaintiff’s petition did not state facts sufficient to constitute a cause of action. (1) If the objection to the legal capacity of plaintiff to sue as an administrator is not made by demurrer it is waived.

— Hon. Alomo D. Burnes, Judge. (1) The evidence adduced to support the indictment was of an alleged obstruction of a ford leading from the Plattsburg and Liberty road, crossing Smith Fork Creek, on the- west side of the bridge and east of defendant’s land. There was no allegation of this character in the information and all evidence in relation thereto, was outside of the case, and should have been rejected, after defendant’s objections thereto.

— Him. Joshua W. Alexander, Judge. Statement. — This action was instituted in the circuit court of Daviess county, Missouri, on the seventh day of June, 1905, for the purpose of recovering from the defendant damages for injuries to plaintiff’s crop of corn by the overflow of Weldon’s Fork of Grand River, and the flooding of the lands which plaintiff was farming there in the latter part of July, 1902.

— Hon. Hat. M. Shelton, Judge. (1) Appellant’s abstract of the record is wholly insufficient. Harding y. Bedoll, 202 Mo. 630; Stark y. Zehnder, 204 M'o. 449; Cramer y. Company, 97 S. W. 969. (2) It is not recited that the record shows an order made at the May term, 1907, extending the time to file the bill of exceptions. State ex rel. v. Broaddus, 105 S. W. 635; State y. Paul, 203 Mo. 681; Hughes y. Henderson, 95 Mo.

— Hon. Alexander H. Waller, Judge. (1) Ways of necessity arise where the owner of a large tract sells off a tract isolated from a road, in which case as appurtenant to the tract sold there passes the right to pass over other land of the grantor in order to pass in or out of the premises sold. This right still maintains even while the tract sold is patented by the government itself. Snyder v. Thomas, 11 Mr. 513. (2) This right is one recognized by the common law.

— Hon. B. Gr. Thurman, Judge. (1). The judgment should be affirmed because the abstract fails to show that the proper steps were ever taken for an appeal. And affirmance is the penalty this court has prescribed for such failure. Bank v. Magee, 125 Mo. App. 439; Schnabel v. Thomas, 92 Mo. App. 180. (2) The abstract fails to show that.a certified copy of the judgment appealed from and the order granting the appeal was ever filed in this court.

— Hon. Joshua, W- Alexander, Judge. (1) Removal of the family from the homestead constitutes a prima-facie case of abandonment, and raises a presumption against claim of homestead, and the burden of proof is upon one making such claim to rebut the presumption. Kaes v. Gross, 92 M’o. 655; Smith v. Bunn, 75 Mo. 559; Waples on Homestead, pp. 564-5; Thompson on Homesteads, secs. 259-265.

— Eon. B. Q-. Thur-. man, Judge. (1) The action of the trial court will not he reversed by an appellate court unless the trial court has, in granting a new trial,. acted arbitrarily or oppressively, or been guilty of an injustice. Kuenzel v. Stevens, 155 Mo. 281; Haven v. Railroad, 155 Mo. 216.

— 3on. George W. Wanamaker, Judge. (T) The trial court erred in permitting plaintiff; to prove the horses claimed to be injured had special value as race horses, and that he had sustained special damages, by reason of their having been injured so they could not race. To entitle plaintiff to recover special damages they must be specially pleaded. Mason v. Railroad, 75 Mo. App. 1; Brown v. Railroad, 99 Mo. 310; Harper v. Railroad, 70 Mo. App. 607.

— Son. Chesley A. Mosman, Judge. (1) All the evidence relating to the conduct of both parties agrees Avith defendant’s testimony, and the renunciation of plaintiff on February 16th. Two circumstances are very persuasive: First:- Failure to produce Mrs. Lesley in corroboration of the pretended meeting of the three on February 20th. Second: Failure to produce the notes and mortgage plaintiff pretends defendant handed her attorney to be executed by her.

— Eon. Frank E. Trimble, Judge. (1) The statements of the plaintiff to the jury regarding bis arrest and destitute financial condition, over the-objections of tbe defendant, were bigbly improper, manifestly incompetent and certainly calculated to enlist tbe jury’s sympathy for the plaintiff and to inflame their prejudice against the defendant, etc. Spohn v. Railroad, 87 Mo. 84; Chittey v. Railroad, 148 Mo. 78; Oglesby v. Railroad, 150 Mo. 224; Gage v. Trawick, 94 Mo.

— Noil Walter A. Powell, Judge. (1) Tlie court should have directed a verdict for defendant because of absolute failure of proof that defendant had notice of the defect in time to have repaired it before the accident occurred. Ball v. Neosho, 109 Mo. App. 683; Drake v. City, 190 Mo. 370; Fehlhaner v. City, 178 M'o. 635; Badgley v. St. Louis, 149 Mo. 133; Gerber v. Kansas City, 105 Mo. App. 191; Bonine v. City, 75 Mo. 437.

— Now. B. Steele Byors, Judge. (1) The evidence offered by defendant, to show that prior to the engagement and prior to the seduction as alleged by plaintiff in her petition, the plaintiff had been guilty of acts of lewdness and unchastity with other men than defendant, should have been admitted for the purpose of mitigating the damages. Cole v. Holliday, 4 Mo. App. 94; State v. Patterson, 88 Mo. 89.

— Eon. William E. Martin, Judge. Where, as in this case, the uncontradicted and overwhelming weight of the 'evidence shows the fact that Batten was engaged in a hazardous occupation and that his death was directly traceable thereto, it was the duty of the trial court to direct a verdict for the defendant, and the court erred in not so directing the jury, and the appellate court will, on appeal, reverse the judgment.

— Hon. Hugh Dabbs, Judge. (1) The plaintiff and Votow were fellow-servants as to the work in which they were engaged in connection with the platform, and a verdict for defendant should have been instructed. “It is the character of the act itself that determines the relation of the actor to injured servant.” Stephens v. Lumber Co., 110 Mo. App. 398; Fogarty v. Transfer Co., 180 Mo. 490; Rigsby v. Oil Well Supply Co., 115 Mo. App. 297.

— Eon. Joshua W. Alexander, Judge. (1) It is the law that a real estate broker earns his commission when he produces to his principal, a buyer, who is able, ready and willing to buy upon the terms at which the broker is authorized to sell. Brown v. Smith, 113 Mo. App. 59; Goodson v. Embleton, 106 Mo. App. 77; Finch v. Trust Co., 92 Mo. App. 263; Finley v. Dyer, 79 Mo. App. 604; Huggins v. Hearne, 74 Mo. App. 86; Chipey v. Leathe, 60 Mo.

— Hon. Hugh Dabbs, Judge. (1) The court erred in refusing the defendant's demurrer, asked at the close of plaintiff's evidence and again at the close of the whole case. Stephenson v. Railway, 68 Mo. App. 642; Gardner v. St. Joseph, 96 Mo. App. 661; Bailey v. Culver, 84 Mo. 531; Rude v. St. Louis,-93 Mo. 408; Fairchild v. St. Louis, 97 Mo. 85; Canman v. St. Louis, 97 Mo. 92; Realty Co. v. Deere & Co., — Mo. —, 106 S. W. 496, and cases cited.

— Eon. Samuel Davis, Judge. (1) The trial court erred in overruling defendant’s demurrer at the end of plaintiff’s evidence, and defendant’s peremptory instruction at the end of all the evidence, for the reason that in the contract of shipment in this case it was agreed that should any loss or damage of any kind occur to the property in question,( the shipper would give notice in writing of his claim therefor to the first party.

— Eon. John G. Parle, Judge. The court erred in sustaining defendant’s motion for judgment on the pleadings and in dismissing plaintiff’s petition, and entering judgment for the defendant for the reason that the note upon which plaintiff based his cause of action against the defendant was a liability of the defendant’s for obtaining property by false pretenses or false representations and was not affected by defendant’s discharge in bankruptcy and plaintiff had a right to…

— No». Thomas J. Seehorn, Judge. (1) The evidence failed to show any negligence on the part of the defendant. (2) There was no causal connection between the alleged defect in the brake and plaintiff’s injury. Trigg v. Ozark Land Co., 187 Mo. 227; Shore v. Bridge Co., Ill Mo. App. 278. (3) A wagon brake is of that class of simple and universal tools which are matters of common knowledge and of which the court may take judicial knowledge. Post v. Railroad, 121 Mo. App. 562.

Jackson Circuit Court. — No». John G. Parh; Judge. (1) The second count, undoubtedly, states a New York contract. It alleges the payment of the premium and the delivery of the policy to have been made in that State; that the contract was to be construed by the laws of, and performed therein. Life Society v. Clements, 140 U. S. 226; Cravens v. Insurance Co., 148 Mo. 583'; Hill v. Insurance Co., 193 U. S. 559.

— Hon. Henry C. Riley, Judge. The bill of exceptions in this case is signed by three bystanders, respectable inhabitants of this State, who also make affidavit that the bill, as presented is true. This authentication is as valid, as if the bill had been signed, by the trial judge. There is no counter affidavit. State ex rel. v. Field, 37 Mo. App. 83. This case was brought to this court under the provisions of section 813.

Louis City Circuit Court. — Noil James E. Withrow, Judge. The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the evidence. Ege v. Brick & Construction Co., 118 Mo. 630; Fink v. Furnace Co., 82 Mo. 276; Morgan v. Bowman, 22 Mo. 538; Crenshaw v. Ullman, 113 Mo. 633; Independence v. Slack, 134 Mo. 66; Blumb v. Kansas City, 84 Mo. 112; Dillon v. Hunt, 82 Mo. 150; Gerd.es v. Christopher & Simpson, 124 Mo. 347.

<p>Appeal from Stoddard Circuit Court. — No». J. L. Fort, Judge.</p>

— Hon. Jas. D. Barnett, Judge. (1) The court erred in overruling defendant’s motion to make plaintiff’s petition more specific. R. S. 1899, sec. 592; Story v. Insurance Co., 61 Mo. App. ■538. (2) The court erred in overruling defendant’s demurrer to plaintiff’s petition. (3) The court erred in overruling defendant’s demurrer in the nature of an instruction offered at the close of plaintiff’s evidence.

<p>RAILROADS: Fences: Negligence. In an action against a railroad company for damages to plaintiff’s crops by stock which entered his field on account of the failure of the defendant to maintain a statutory fence, the railroad company could not defend by showing that the plaintiff was negligent in planting his crop with knowledge of its exposed condition and in failing to keep the fence in repair where the stock entered the field.</p>

— Hon. Henry C. Riley, Judge. (1) Plaintiff’s second instruction is wrong, as it told the jury that if they found from the evidence that the defendant maintained no depot or agent at Delisle, then it was not a station. Such is not the law. It is not necessary to constitute a place a station that a depot building should be erected, or that a station agent should be kept present. Foster v. Railroad, 112 Mo. App. 72; Smith v. Railroad, 111 Mo.

— No». Henry O. Riley, Judge. (1) When the sole purpose of the proceedings is to have a village organization declared illegal, the courts have uniformly held that judgment of ouster should not go against the officers of the municipality unless it is made a party defendant. State ex rel. v. Huff, 105 Mo. App. 354; 19 Am. and Eng. Ency. of Law (1 Ed.), 675.

— Hon. F. G. Johnston, Judge. (1) The judgment of the county court was not subject to collateral attack. No one but the court that rendered the judgment bad power to set it aside. Johnson v. Realty Co., 167 Mo. 325; State ex rel. v. Bradford, 156 Mo. 457; Brown v. Oppleman, 83 M'o. App. 79; Bradford v. Sikes, 168 Mo. 8.

— Hon. Jas. D. Barnett, Judge. (1) The defense of misrepresentation by plaintiff in procuring the insurance ‘in question is not open to defendant for two reasons: 1st. Defendant is not a fraternal beneficiary association. Gruewell v. Nat, Council K. & L. of S.,*104 S. W. 884; Baltzell v. M. W. A., 98 Mo. App. 153, 71 S. W. 1071; Logan v. Insurance Co., 146 Mo. 114, 47 S. W. 948;'Johnson y. Sovereign Camp, 119 Mo. App. 98, 95 S. W. 951; Brassfield v. K. -of M., 92 Mo.

— Hon. F. C. Johnston, Judge. (1) The shipment of the tomatoes, according to the terms of sale, by bill of lading attached to the sight draft, payable on presentation, had the effect to retain in plaintiff the title to the tomatoes till the draft had been honored hy defendant. And it can not make any difference that defendant got possession of the tomatoes. Such possession was wrongful as against plaintiff and he can recover them.

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

— Eon. John T. Moore, Judge. As the testimony of defendant and his wife shows that they wére induced to purchase the piano in question under and by reason of false misrepresentations and statements of Stephens, and that they relied on same, and as soon as they discovered the fraud within a day or two, they notified appellant of the fact and offered to place him in as good position as they found him, by offering to return the piano and also to pay some additional money, which…

— No». Henry G. Riley, Judge. (1) Giving to plaintiff the benefit of his pleading that the goods were by him bought, the goods delivered, and by plaintiff paid for, he yet fails to show any legal reason entitling him to recover a part of the payment made to defendant. His sole allegation for recovery is that defendant made certain false representations as to the cost and price of the goods sold plaintiff. This is not sufficient.

— Eon. J. G. Sheppard, Judge. (1) The petition does not state a cause of action; it alleges neither general nor special ownership in the property claimed by the plaintiff. Mere allegation of the right of possession is insufficient, and when a petition states no more it is fatally defective even after verdict. Benedict v. Jones, 60 Mo. App. 219; Rosentreter v. Brady, 63 Mo. App. 398; Dillard v. McClure, 64 Mo. App. 488; Harmon v. Iden, 88 Mr. App. 314.

Louis City Circuit Court. — Now. WaruAclc Hough, Judge. (1) The contract in question was the contract of the defendant, and it was, therefore, competent and admissible in evidence. Smith v. Alexander, 31 Mo. 193; McClellan v. Reynolds, 49 M'o. 312; Sparks v. Dispatch Transfer Co., 104 Mo. 531; McGee v. Larramore Co., 50 Mo. 425; Newberry v. Durand, 87 Mo. App. 295. (2) An objection to an entire document as a whole is futile, where any part of it is admissible.

— Eon. F. G. Johnston, Judge. (1) A warranty express or implied will obtain in favor of a buyer, where the seller has knowledge of the intended use of a machine, whether the buyer avails himself of the opportunity of inspection or not and even though the seller is ignorant of the defect, that renders the machine unsuitable for the purposes for which it was bought. Brewing Association y. McEnroe, 80 Mo. App. 429; Steel Works Co. v. Saymons, 110 Mo. App. 50.

— Non.. Ghas. D. Stewart, Judge. Where the purchaser sends an order for liquors, to a dealer in intoxicating liquors, directing him to deliver the liquors to a common carrier to he transported to the purchaser or his agent, the place of sale is where the liquors are delivered to the carrier for such transportation.

— Hon. F. O. Johnston, Judge. (1) It is not the defendant’s duty to carry the stock through at all hazards in the shortest time, possible, but it is held to the duty of exercising ordinary diligence in transporting the stock, without unreasonable delay. R. S. 1899, sec. 1084; Douglass v. Railroad, 53 Mo. App. 473; Leonard y. Railroad, 54 Mo. App. 293; Sloop y. Railroad, 93 Mo. App. 605; Perry y. Railroad, 89 Mo. App. 49; Anderson v. Railroad, 93 Mo.

— Hon. David H. Hby, Judge. (1) The statute (R. S. 1899, sec 2626) provides that “the court shall make such order touching the alimony and maintenance of the wife, and care and custody and maintenance of the children or any of them, as from the circumstances of the parties and the nature of the case shall be reasonable.” This statute contemplates that the property, owned by the wife as well as by the husband, shall be considered in fixing the amount of the alimony.

<p>1. CARRIERS OF PASSENGERS: Negligence in Starting Train: Prima-Facie Case: Physical Facts. In an action by a passenger on a railroad train for injuries received at the station when attempting to alight from the train, on account of the sudden movement of the train before she had time to alight, where the evidence showed that the train was moved towards the west and the plaintiff fell towards the west, this did not warrant a finding that she must have stepped from the train while it was in motion, that if the train had suddenly started from a stationary position when she stepped upon the platform, her feet would have been jerked from under her and she would have fallen towards the east, and if the train was in motion she would fall towards the west in the direction the train was moving, as she did; such an argument was proper for the jury to consider upon the question of plaintiff’s contributory negligence, but such facts would not warrant a ruling that no prima-facie case was made out.</p> <p>2. -; -: Stepping from Train in Motion: Contributof;/ Negligence. It is not negligence per se for a passenger to alight from a moving train, but whether it is or not must be determined from circumstances such as the age, activity and strength of the passenger and whether the passenger was encumbered by valise or other burdens, etc.</p> <p>3. -:-: Variance. In an action by a passenger against a railroad company for damages received by the sudden starting of the train before the plaintiff had time to alight at the station, where the petition alleged that the train was motionless when the plaintiff started to alight, the evidence is examined and held sufficient t'o justify the inference that it was motionless so that there was no variance between the testimony and the allegation.</p> <p>On Motion for Rehearing..</p> <p>4. APPELLATE PRACTICE: New Trial: Assigning Reason for Ordering New Trial. Where the appeal was from an order granting a new trial and the abstract of the record showed no ground given by the trial court for sustaining the motion for new trial except the giving of an instruction which was not contained in the abstract of the record, the judgment should be affirmed and new trial ordered.</p>

— Eon. Eat. M. Shelton, Judge. (1) It is the duty of a court to correct its record at any time it discovers the defects, and may do so at the instance of any person interested, or of its own motion. Yan Fleet, Coll. Attack, ch. 20, part 11; Estate of Cook, 77 Cal. 220; 11 Am. St. 267. As to such facts, there is or can be* no. issue.

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. Entire absence of evidence to prove material allegations of petition makes it the duty of the trial court to give instruction in the nature of a deniurrer. Charles v. Patch, 87 Mo. 450; Hyde v. Railway, 110 Mo. 272; Higgins v. Railway, 43 Mr. App. 547. The mere suggestion of an intention to give evidence to sustain material parts of petition is not sufficient. Noeninger v. Yogt, 88 Mo. 589; Dawling v. Allen, 6 Mo.

<p>1. CRIMES: Exhibiting Deadly Weapon: Traveling Peaceably Through the State. Persons traveling peaceably through the State are exempt from the provisions of section 1862, Revised Statutes 1899, and stand on the same footing as police officers,, etc., such persons are not liable to prosecution either for carrying concealed weapons or for exhibiting deadly weapons, in a rude, angry and threatening manner.</p> <p>2. —--:-: -: Disturbing Peace. But where a person-traveling through the State and carrying a weapon disturbs-the peace of other persons, by exhibiting the weapon, he is not “traveling peaceably” through the State within the meaning of the section and may be convicted for a violation of it.</p>

— Hon. Jos. J. Williams, Judge. Statement. — This defendant was convicted of publishing a criminal libel accusing M. G. Harrison, a citizen of Reynolds county, of having lived in adultery.

<p>1. OFFICERS: Impeachment: "Cause Shown.” An officer of a municipal corporation can not be removed from office for misconduct unless the misconduct was with respect to the office which he holds; misconduct in a prior office would.not justify his removal; by electing him to a second office, the people condoned his offense in the first. The mayor and city council of a city of the third class could not remove the treasurer elect of said city for “cause shown,” by showing that he embezzled the funds of the city while acting as collector during a previous term.</p> <p>2. -:-: -: Conviction of Former Offense. If, however, it had been shown that the treasurer had been convicted of embezzlement while' filling the office of collector during a previous term, this would have been sufficient cause for his removal.</p> <p>3. -:-:-: Eligibility. The fact that under the law the collector who had been guilty of such embezzlement was ineligible to election to another office was not sufficient ground for his removal by impeachment from such other office.</p>

Original Proceeding for Writ of Mandamus. (1) The mayor of a city in signing a license for the sale of intoxicating liquor performs a purely ministerial duty; and if a license is granted by the board of aldermen the signing by the mayor may be enforced by mandamus. The law clothes the mayor with no power to review or revoke the act of the board. The law imposes upon him the mandatory and ministerial duty of signing the license. R. S. 1899, sec. 5951; 14 Am. and Eng. Enc.

— Eon. F. O. Johnston, Judge. (1) Whether or not a case may be referred over the objections of one or both parties to a suit, must be determined by the pleadings and the issues raised by the pleadings. Kenneth Inv. Co. v. Bank, 96 Mo. App. 138; The Father Matthew Society v. Fitzwilliam,. 84 Mo. 406; Johnson v. Blell, 61 Mo. App. 37.

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. The judgment was rendered on the 28th day of May, 1894, and the execution was issued on the 30th day of’November, 1904, inore than ten years and six months after the rendition of the judgment, without any notice to the plaintiff, Rudolph H. Dreyer. The refusal of instructions five and six presenting this issue to the jury asked by the plaintiff was manifest error.

— Hon. Henry fj. Riley, Judge. That witnesses should be required to state facts and not opinions and conclusions is too well established to admit argument at our hands. Greenleaf on Evidence (11 Ed.), sec. 440; McKelvey on Evidence (Horn-book Series), 171, 172. A witness is to state facts rather than his opinion. 17 Cyc., p. 25. In Madden v. Railway, 50 Mo.

— No». David N. BÍ>y, Judge. This being suit on a judgment, plaintiff, as tbe assignee for value of tbe judgment creditor, is entitled to recover in his own name.

<p>1. PARENT AND CHILD: Torts of Minor Child: ..Liability of Parent. A father is not responsible for the tort of his minor child merely because of the relationship.</p> <p>2. -: -: -: Prima-Facie Case. Where a minor tortiously shot and killed a dog in the presence of his father, hut where there was no substantial evidence that the father consented to the act or knew of the son’s intention in time to prevent it, the owner of the dog did not make out a prima-facie case in an action against the father for the value of the dog.</p>

<p>1. MASTER AND SERVANT: Right to Discharge Servant: Refusal of Employee to Comply with Contract. Where an employee refuses to perform an essential part of the work which he is employed to perform, the employer has a right to discharge him. A superintendent of the bottling department in a brewery forfeited his right to continue in that employment by refusing to do his work and could not justify his refusal on the ground that a subordinate, whom he had dismissed for some trivial offense, had been reinstated by his employer, without being required to promise he would obey the orders of the sup erintendent.</p> <p>2. -: -: Contract of Employment: Dependent and Independent Covenants. The work which an employee has agreed to perform as a substantial part of his employment goes to the entire consideration for his service; the requirement of it is not an independent covenant and failure to perform such work forfeits his contract.</p> <p>3. -: -: Quantum Meruit. The rule in this State is that where an employee is discharged for cause or abandons his work before the end of his term of employment, he cannot recover even for the period during which he served.</p> <p>4. -: -: -: Periodical Payments. But where an employee’s contract provides for periodical installments of salary or wages, and is discharged for cause or abandons his contract, he may recover that portion of his salary due and unpaid at the time of his discharge or abandonment of his contract.</p> <p>5. -: -: -: Construction of Contract by Parties. And where an employee was to receive a portion of his salary in monthly installments and the remainder in lump sum at the end of the year and was discharged for cause before the end of the year, and his employer tendered him the monthly installments then due and the earned portion of the sum to he paid at the end of the year, this was' a construction of the contract by the parties such as to entitle the employee to the full sum earned by him up to the time of his discharge.</p>

— Hon. F. G. John- . ston, Judge. (1) Instruction number 5 is clearly erroneous. This instruction tells tbe jury that if Sig Solomon was tbe agent of defendant, then any admissions or staternents made by Solomon concerning tbe disposition of said property and the intentions of defendant become tbe admissions and statements of defendant.

Louis City Circuit Court. — Now. Jas. E. Withrow, Judge. (1) A stipulation in a policy that it shall be void if the insured is not the sole and unconditional owner of the property does not refer to encumbrances upon the property, but to the character and. quality of the title. It is well settled that this provision is not violated by the existence of liens or encumbrances. Kerr on Insurance, sec. 151; Boulware v. Insurance Co., 72 Mo.

<p>Appeal from Howell Circuit Court. — Now. TF. N. Evans, Judge.</p> <p>(1) There was no contract on which to base an action; no meeting of minds, no mutuality. To constitute a contract there must be a proposition by one party, accepted by the other, without any modification whatever. The mere proposal of a bargain by one person to another imposes no obligation upon the former until it is accepted by the latter according to the terms in which the offer was made. Any qualification of or. departure from those terms invalidates the offer, unless the same be agreed to by the person who made it. 1 Beach on Contracts, sec. 51; Egger v. Nesbit, 122 Mo. 667; Falls Mfg. Co. v. Broderick, 12 Mo. App. 379; Bruner v. Wheaton, 16 Mo. 363; James v. Fruit Jar Co., 69 Mo. App. 207. (2) If a contract did exist plaintiff departed from its terms and committed a breach by refusing to pay upon delivery as agreed and defendant had the right to refuse further shipments. Meyer v. Christopher, 176 Mo. 580; 3 Am. and Eng. Ann. Cases, 898. This case covers all points in the case with exhaustive annotation.</p>

<p>Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.</p> <p>(1) Plaintiff having alleged in his petition that he leased and rented the property in question to C. Campbell and Mary Campbell, which petition was sworn to by the plaintiff, he is now estopped to deny the truth of that allegation. Harrison v. McReynolds, 183 Mo. 533; Cousins' v. Bowling, 100 Mr. App. 452; Cross v. Railroad, 71 Mo. App. 585. (2) The court erred in permitting plaintiff to recover or to maintain this action, the same being a summary proceeding under the statute for rent and possession, when the evidence in the case showed that the plaintiff was not entitled to recover the amount prayed for in his petition, and the judgment of the court was for a smaller amount than that asked for in the petition, and the rent sued for had not been earned at the time the suit was filed. Mooers v. Martin, 23 Mo. App. 657; Same case affirmed in 99 Mo. 95; Welch v. Ashby, 88 Mo. App. 400; Fisher v. Chitty, 62 Mo. App. 406.</p> <p>If appellant is right in his contention that C. Campbell and Mary Campbell formed a copartnership under the name of Campbell & Company, then a suit against one of them is sufficient to bind the copartnership and one partner cannot plead in abatement the nonjoinder of the others. R. S. 1899, sec. .892; Oldham v. Henderson, 4 Mo. 295; Simpson v. Schulte, 21 Mr. App. 639.</p>

— Hon. Ohas. D. &'tewart, Judge. When by express direction of a statute a memorandum is required to be kept tbe memorial made in compliance thereto is a public record. 20 Am. and Eng. Ency. Law (1 Ed.), 507, and cases cited. The books of clerk or secretary of a public school. Sanborn y. School District, 12 Minn. 17; Wormley v. Carroll County, 45 Iowa 666; Lawrence v. Dunkle, 35 Mo. 395. It cannot be added to, supplied or modified by parol evidence. 20 Am. and Eng. Ency.

— Hon. Henry G. Riley, Judge. ( A carrier is required to furnish seats to the passengers entitled to transportation, if practicable, bub the carrier has a right to assign each passenger to his position in the conveyance, in the exercise of his own discretion, with reference to the control of the vehicle. 6 Cyc.