Volume 132 — Missouri Appeal Reports

— Hon. Henry C. Riley, Judge. (1) This suit was to recover the purchase price for the goods sold to the firm of Crawford & Carter. And the first and main question is, “Can the defendant, M’Elvain, who claims to have had a mortgage on the business of Crawford & Carter, in the Climax Saloon, be termed an innocent purchaser, for value to such an extent as to defeat plaintiff’s suit for purchase money?” Wine Co. v. Rinehart, 42 Mo. App. 171.

Louis City Circuit' Court. — Ho». Geo. H. Shields, Judge. (1) (a) In actions before a justice it is no more permissible to sue on one cause of action or theory and recover on another than it is in the circuit court. McClure v. Feldman, 184 Mo. 710; Turner v. McCook, 77 Mo. App. 196 ; Penninger v. Reilley, 44 Mo. App. 255. (b) Allegations or admissions in a pleading are conclusive upon the pleader. Cousins v. Bowling, 100 Mo.

— Hon. R. Steel Ryors, Judge. In order to entitle plaintiff to have her case go to the jury it was not necessary for her to prove an express promise made by her father to her to pay for her services. The evidence was such that therefrom the jury would have been justified in finding an implied contract to pay therefor. The circuit court therefore erred in taking the case from, the jury, and its judgment should be reversed. Bonsieck v. Boonschmidt’s Admr., 63 Mo.

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. (1) A stable is not a nuisance per se. City v. Russell, 116 Mo. 259; State v. Beattie, 16 Mo. App. 141; Flint v. Russell, 5 Dill. 151. (2) Where the'thing complained of is not a nuisance per se, and the allegations of the bill are denied, the preliminary injunction must be dissolved on motion to that end. Mygatt v. Gotchins, 20 Ga. 350; Chambers v. Cramer (W. Ya.), 54 L. R. A. 547. (3) The bill stated no cause of action.

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

Louis City Circuit Court. — No». Daniel D. Fisher, Judge. Plaintiff and Finn were unloading baggage from one of defendant’s trains and taking it to tbe baggage room. They were “engaged in the work of operating snch railroad” within the meaning of the statute. It is a terminal railroad and conld not he operated at all without the baggage being put on and off the cars, and taken to and from the baggage room.

— Eon. David E. Eby, Judge. (1) Appellant first contends that there is no precedent for such proceeding to discover assets belonging to an estate. R. S. 1899, sec. 74.

— No». J. L. Fort, Judge. The court erred in sustaining objection to the introduction of evidence under the petition, and dismissing plaintiff’s cause of action. Butz v. Construction Co'., 199 Mo. 280; Murrell v. Railroad, 105 Mo. App. 88; Langan v! Railroad, 72 Mo. 392, 180- Mo. 168. (1) Petition does not state a cause of action.

Louis Oity Circuit Court. — Hon. Robt. M. Foster, Judge. (1) A pretended sale of stocks upon margins, with no intention of either delivering or receiving the stocks, is a gambling transaction and is unlawful; and such contracts are void. R. S. 1899, secs. 2337, 2338, 2342; R. S. 1896 (111.), secs. 253, 262, 263. (2) It is not essential to render such contracts void, that both parties thereto should agree that the sale should be a fictitious one.

— No». Henry C. Riley, Judge. The court erred in sustaining respondents’ motion for a new trial and in not sustaining appellant’s motion to set aside the order of the court in sustaining said motion for a new trial, because appellant was entitled to damages for all that portion of the personal property which had been destroyed by fire prior to the trial and was entitled to a judgment for the value of that portion of said property which was in esse at the time of the trial.

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

— No». David N. Eby, Judge. (1) There is no denial of the fact that respondent knew when he bought the “Shipp” forty-acre tract that the levee in controversy was there. He admits it. The levee was built in 1897; respondent did not purchase until 1900. He, therefore, took the land with all the encumbrances thereon, and with the levee constructed upon the land in the condition in which it was at the time of the purchase.

<p>1. PRACTICE: Estoppel by Pleading. In an action to which the defendants filed two counterclaims on two promissory notes and the plaintiff in reply alleged that the second note was executed as a renewal of the first, hut pleaded that it was never delivered and therefore was not binding, he was estopped by so pleading to assert in defense of the first note that the second was given in payment of the first.</p> <p>2. -: -: Abandoned Pleading. And in such action where the plaintiff in his answer to the counterclaim on the second note alleged facts which showed a non-delivery of such note, and the defendants abandoned their counterclaim on such note, the plaintiff on the second trial of the case after it had been to the Court of Appeals, although he amended his reply to the second counterclaim by striking out the allegations showing that it was not delivered, was nevertheless es-topped, by such former pleading and by inducing the defendants to abandon their counterclaim on said second note, to 'assert in defense to the first note that the second was given in payment of the first.</p> <p>3. -: -: Statute of Limitations: Partial Payments. In an action where the defendants filed two counterclaims on two promissory notes, the second of which was given in renewal of the first, and the plaintiff, by his pleading the failure to deliver the second, was estopped to deny that it was delivered in payment of the first, it did not fdllow that he was also es-topped to show, on his plea of the Statute Limitations to the first note, that certain partial payments were made on the second note and not on the first; the estoppel only went to the facts covered by the pleading.</p> <p>4. STATUTE OF LIMITATIONS: Partial Payments: Renewal Note. Where one note was given in renewal of anoth'er, in an action on both of said notes, where it was shown that the principal on the notes in making partial payments directed their application on the second note, this would not prevent the running of- the Statute of Limitations in fa^-or of a surety on the first note, who treated the second note as invalid, -on the ground that the partial payments were on the debt and not on the particular note; while partial payments by principal will stop the-running of the statute as to the surety, such payments by tbe principal on a renewal note would not stop it as to tlie surety on tbe original note.</p> <p>6. -: Residing out of State: Ordinary Process of Law. The Statute of Limitations will cease to run as to a debtor who departs from and resides elsewhere with his family and has no place of abode in this State where service of process can be obtained, although such debtor may occasionally return to this State for the purpose of attending court. Where a debtor moved with his family out of the State and remained temporar ily, and during the time made several visits to the State, attending court and looking after other business, it was a question for the jury as to whether he had departed from and resided out of the State so as to prevent the Statute of Limitations from running in his favor against a note which he owed in this State.</p>

— No». Jas. T. Neville, Judge. The court erred in giving instruction numbered 1 in the nature of a demurrer, at the close of plaintiff’s case. Schermerhoon v. Herold, 81 Mo. App. 46; Smith v. Stokes, 72 Mo. 178; Larson v. Railroad, 110 Mo. 234.

— Eon. Chas. D.. Stetoart, Judge. (1) There was no legal service on defendant in this cause. R. S. 1899, sec. 995, as amended by Mo. Sess. Acts 1903, p. 115. (2) The plea in abatement, should have been sustained, as the defendant was not sued in its corporate name. Hazek v. Benevolent Society, 66 Mo. App. 568. This case is almost on all-fours and the court then held no valid judgment could be rendered. The proper defendant must be brought, before the court.

— No». David N. Eby, Judge. (1) To constitute a circuit court for Monroe county it is necessary that it be regularly convened in an authorized place, at an appointed time and by some person authorized by law to administer justice at that place. “It must appear upon the face of the record, while the cause is in the court where the indictment was found, and from the transcript of the record, after its removal into this court upon appeal or writ of error, not only that the…

Audrain Circuit Court. — No». Jas. D. Barnett, Judge. Defendant’s peremptory instruction should have been given because plaintiff failed to prove any negligence on the part of defendant. Not a witness pretends to testify that any improper thing was done by the train crew in making the coupling in question. Hedrick v. Railroad, 195 Mo. 104; Wait v. Railroad, 165 Mo. 612; Bartlfey v. Railroad, 148 Mo. 124; Hite v. Railroad, 180 Mo. 132; Portuchek v. Railroad, 101 Mo.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) Plaintiff was not entitled to the relief prayed in his petition, because: On the face of his petition, and under the testimony in the case he was guilty of gross, laches. 18 Am. and Eng. Ency. Law (2 Ed.), p. 97 and note 4. (2) The decree is too general; and is so worded as to unnecessarily infringe defendants’ rights in the premises. Schaub v. Construction Co.,. 108 Mr. App. 122; McMenomy v. Band, 87 Cal. 134.

— Now. A. W. Lincoln, Judge. (1) The attempted impeachment of the defendant, by his testimony at former trials in the police court, was entirely incompetent. The statute allows for several defenses, and it is the privilege of an accused to use any one of the number or all., B. S. 1899, sec. 1852. It was in addition improper to allow such cross examination, as the same was based entirely on matters outside of the examination in chief, and therefore improper.

<p>1. INSURANCE: Fraternal Beneficiary Associations: Definition. A fraternal beneficiary association as defined by section 1408, Revised Statutes 1899, is one organized for tbe sole benefit of its members and tbeir beneficiaries and not for profit, fias a lodge system with a ritualistic form of work and a representative form of government: the clause of the section naming the beneficiaries, to whom death benefits should be payable, should mot be regarded as a part of the definition of fraternal beneficiary societies.</p> <p>2. -: -: Foreign Beneficiary Societies. Where a fraternal beneficiary association, organized under the laws of another State, was authorized to do business in this State, by having complied with section 1410, Revised Statutes 1899, although the law of the State under which it was organized authorized the payment of benefit certificates to classes not recognized as beneficiaries under the laws of this State, it was entitled to the exemption from the general insurance law contained in section 1408. The defense of suicide provided for in a benefit certificate, issued by such order, could be maintained against an action on such certificate, where the beneficiary belonged to a class recognized by the law of this State. Had the certificate designated as a beneficiary one of a class not recognized by the law of this State, such designation would be treated as ultra vires.</p>

— No». Henry G. Riley, Judge. The police regulations of a city are not made and enforced in the interests of the city in its corporate capacity, but in the interest of the public. A city is not liable therefore for the acts of its officers in attempting to enforce such regulations nor will it be made liable by ratifying torts of police officers. Ulrich v. St. Louis, 112 Mo. 143.

-Appeal from Johnson Circuit Court. — Hon. Nick M. Bradley, Judge. (1) The facts create a tenancy from November 24, 1906, to January 1, 1907, a time certain, fixed and. agreed upon. (2) In this case no notice to quit was necessary, the time for the termination being definite, certain and understood. Young v. Smith, 28 Mo. 65; Butts v. Fox, 96 Mo. App. 437; Mostin v. Wetsinger, 99 Mo. App. 613; Ray v. Blackman, 120 Mo. App. 497.

— Hon. Alonzo D. Burnes, Judge. (1) • The affidavit of juror Sifers was incompetent to impeach the verdict of the jury and it was the duty of.the court to disregard such affidavit and refuse consideration. Pratte v. Coffman, 33 Mo. 71; Sawyer v. Railway, 37 Mo. 264; State v. Underwood, 75 Mo. 51; State v. Copenkaver, 39 Mo. 430; McFarland v. Bellows, 49 Mo.

Apeal from DeKalb Circuit Court. — Hon. Alomo D. Burnos, Judge. (1) Plaintiff failed to perform the contract alleged. There was a plain abandonment of the contract alleged in the petition. Gabriel y. Brick Co., 57 Mo. App. 526; Freeman y. Aylor, 62 Mo. App. 613; Billups y. Doggs, 38 Mo. App. 367; Smith y. Coal Co., 36 Mr. App.' 567; Marsh y. Richards, 29 Mo. 99; Hayden v. Grillo, 26 Mo. App. 289; Craycroft v. Walker, 26 Mo. App. 469.

— Hon. Henry M. Ramey, Judge. (1) No mono pro tuno judgment can be rendered unless there is some court record evidence or memoranda upon which to base the new entry. Burnside v. Wand, 170 Mo. 543; Burns y. Sullivan, 90 Mo. App. 1; Dawson v. Waldheim, 89 Mo. App. 249. (2) The respondent acted upon the original judgment, and ratified it, by taking and receiving thereunder the personal property therein mentioned.

— Hon. John G. Park, Judge. If the trustee be notified to prosecute tbe action, ■ and refuses or fails to do so, then the bankrupt, to preserve his property, may continue the prosecution of the action in his own name.

— Hon. Henry L. McOune, Judge. (1) We snbmit that according to said contract Stoops and Pratt became partners, but it is not material that tbis court should hold that they were such partners.

— Now. John G. Park, Judge. (1) The motion of defendants to have the cause placed on the court docket, and tried as an equity cause should have been sustained. The answer admitted the execution and delivery of the check, the stoppage of payment thereof, plead mistake, and asked affirmative equitable .relief. Hodges v. Black, 8 Mo.

— Eon. James H. Slover, Judge. (1) Surface water is a common enemy and appellant owed respondent no such duty Avhen leveling his lot by filling in the rear end, as protection of her property against it. McCormick y. Eailroad, 57 Mo. 437; Hosher v. Eailroad, 60 Mo. 333; Benson y. Eailroad, 78 Mo. 504; Stewart v. Clinton, 79 Mo. 603; Abbott v. Eailroad, 83 Mo. 271; Hoesten y. Hensath, 16 Mo. App. 485; Collier v. Eailroad, 48 Mo. App. 398; Gray v. Schreiber, 58 Mo.

— Hon. Samuel G. Davis, Special Judge. (1) It is an elementary rule of pleading that in an action on a bond a breach of the condition must be assigned, for without a breach there is no cause of action. Barret y. Fletcher, Cro. Jac. 220; Holman y. Criswell, 13 Tex. 38; Moxley y. Moxley, 2 Met. (Ky.) 309; Schuyler v. Chittenden, 47 Mo. 65.

— No». Ghesley A. Mosman, Judge. Statement. — “This is a suit in equity to enjoin the defendant from laying a spur track in an unpaved alley twenty feet wide, running north and south through blocks 42 and 43 in Patee’s addition to the city of St. Joseph.

— Now. Henry L. McCune, Judge. (1) That appellant could have maintained a suit against said commission company for the amount so retained by it cannot be controverted. Forge Cio. v. Cullen, 105 Mo. App. 484; Thorn L. & Co. v. Bank, 158 Mo. 272; M'fg. Co. v. Gerodi, 166 Mo. 142; Rothwell v. Skinker, 84 Mo. App. 169; Glenco L. & C. Co. v. Wind, 86 Mo. App. 163.

— Hon. Henry M. Ramey, Judge. (1) The agreement between the National Separator Company and defendant, executed May 21, 1904, and all testimony relating thereto, should not have been admitted in evidence, (a) This agreement was signed simply by E. L. Wortham., vice-president, and there is no evidence that he was authorized by the National Separator Company to bind it by such an agreement, (b) There was no evidence that A. H. Penfield acquired knowledge of this agreement while…

— No». Charles A. Denton, Judge. (1) The only instruction given on actual damages was wrong. In the case of Comer v. Taylor, 82 Mo. 347, an- instruction containing the same vice was severely condemned and held reversible error. Also in the case of Walters v. Cox, 67 Mo. App. 302, an instruction almost identical in language was held reversible error. In Plummer v. City of Milan, 70 Mo. App. 601, an instruction of the same verbiage was likewise held reversible error.

— Now. Alonso Zb Burnes, Judge. (1) The petition does not state facts sufficient to constitute a cause of action, and the court erred in overruling the defendant’s demurrer thereto. (2) The petition is insufficient in that it fails to allege any contract or promise to pay on the part of the defendant Sappington v. Insurance Co., 72 Mo. App. 76; Hall v. Southmayd, 15 Barber 33; McKinney v. Bull, 16 N. Y. 303.

— No». Hugh Dabhs. Judge. (1) Agreeing to pay a debt in a deed which the grantee accepts, makes a contract and the relation of principal and surety then' exists between the mortgagor grantor, which was Paul in this case, and the grantee, Mr. Priddy. Nelson v. Brown, 140 Mo. 580; Pratt v. Oonway, 148 Mo. 291; Otrrick v. Durham, 79 Mo. 174; Greenwell v. Heritage, 71 M’o. 459; Bank v. Petit, 85 Mo. App. 508; Bank v. Edwards, 84 Mo.

— No». William PL. Martin, Judge. (1) If the plaintiff’s theory of .the case is correct, the measure of damages might be compensation for actual loss or difference in its market value immediately before the injury and the like value after the injury is complete; but surely he could not be entitled to both.

— No». Herman Brumback, Judge. (1) Tbe justice did not have jurisdiction of this case and, for that reason, the circuit court was also without jurisdiction. R. S. 1899, sec. 3839; Smith v. Simpson, 80 Mo. 634; Gideon v. Hughes, 21 Mo. App. 529; Cunningham v. Railroad, 61 Mo. 36; Allen y. Scharringhausen, 8 Mo. App. 229; Olin v. Z edgier, 46 Mo. App. 193; Marden y. Railroad, 78 Mo. App. 664; Trimble & Fyfer v. Elkin, 88 Mo. App. 229; State ex rel. y. Cunningham, 106 Mo.

— Hon. J. D. Perkins, Special Judge. (1) The court erred in overruling the defendant’s •demurrer to the evidence and in giving plaintiff’s instruction number 2 and in giving instructions of its ■own motion numbers 3 and 4, and in refusing defend- ■ ant’s instructions numbers 7, 8 and 9. Norman v. Rose-man, 59 Mo. App. 685; Chapman v. Currie, 51 Mo. App. 43; Carr v. Ubsell, 97 Mo. App. 331; Morrison v. Murphy, 36 Mo. App. 36; Bent v. Priest, 86 Mo. 482.

— No». Hoioard Gray, Judge. (1) The court correctly held that plaintiff was not entitled to recover. McMillan v. Water, 57 Mo. App. 220; Becraft v. Lewis, 41 Mo. App. 546.

— Son. John C. Park, Judge. (1) The court erred in giving the instruction in the nature of a demurrer to plaintiff’s evidence. It was certainly a question of fact, which should have been submitted to the jury, as to whether or not the rack around the automobile complied with the requirements of the rule of defendant’s schedules in regard to racking or crating. Jones v. Railroad, 59 Mo. App. 137; Blair v. Heibel, 103 M'o. App. 621; Keithley v. Independence, 120 Mo. App. 255.

<p>1. SALES: Contract: Future Delivery: Inspection. An executory contract for tlie future delivery at a definite place implies the right of inspection of the quantity and quality and then as contemporaneous acts there should be delivery and payment.</p> <p>2. -: Future Delivery: Shipment: Shipper’s Order. A shipment directly to the vendee makes a delivery to the carrier delivery to the vendee, but when the shipment is to the consignor’s own order there is no delivery and the property remains in the consignor.</p> <p>3. -: -: -: -: Case Stated. A vendor agreed to deliver to the purchaser certain goods free on board cars at the purchaser’s station. He shipped the goods to his own order, and drew on the plaintiff for the purchase price. Held, this deprived the purchaser of his important rights under executory contract of inspection before receiving and paying.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Walter A. Powell, Judge.</p> <p>(1) It was the duty of plaintiff to either pay her fare or leave the train. Woods v. Railroad, 48 Mo. App. 125; Turner y. McCook, 77 Mo. App. 196; Boling y. Railroad, 189 Mo. 219; N. Y. L. E. & W. v. Bennett, 1 O. C. A. (U. S.) 549, 50 Fed. 496; Railroad y. Daniels, 90 111. App. 454; Brown y. Railroad (Mich.), 96 N. W. 925; Railroad v. Griffin, 68 111. 490; Peabody v. Railroad, 21 Ore. 121; 12 L. R. A. 823; Poulin y. Railroad, 3 C. C. A. 23; Maxson y. Penna. Co., 97 N. Y. 962; Frederick v. Railroad, 37 Mich. 342; Hufford v. Railroad, 53 Mich. 118. (2) When plaintiff refused to pay her fare she technically became a trespasser to whom the company owred only proper care and civility until her removal could be effected. Woods v. Railroad, 48 Mo. App. 125; Randall y. Railroad, 102 Mo. App. 349; N. Y. L. E. & W. v. Bennett, 1 U. S. O. C. A. 549; Edwards v. Railroad, 81 M'ich. 364; Frederick y. Railroad, 37 Mich. 42; Hufford v. Railroad, 53 Mich. 118; Mosher v. Railroad, 127 U. S. 390; Bavlan v. Railroad, 132 U. S. 146. (3) A railroad company is not liable for mere rudeness of its conductor, nor for brusqueness of manner in the discharge of his duty. Railroad y. Bennett, 1 U. S. C.,C. A. 544; Rose v. Railroad, 106 N. C. 168; Daniels y. Railroad, 62<S. 0.16 L. C. (4) But would be for abusive language amounting to a slander. Maleeek v. Railroad, 57 Mo. 17; McGinnis v. Railroad, 21 Mo. App. 399; Cole v. Railroad, 102 Ga. 474; Grayson v. Transit Co., 100 Mo. App. 72; Connell y. Tel. Co., 116 Mo. 1. c. 46-7. (5) There was no evidence of any insult being offered to plaintiff by defendant’s conductor. Chaffin y. Lynch, 83 Ya. 116. (6) Unless there was physical or bodily injury or slander — mental anguish, distress of mind or fright affords no ground for action. CSonnell v. Tel. Go., 116 Mo. 41; Trigg v. Eailroad, 74 Mo. 147; Grayson v. Transit Co.,. 100 Mo. App. 72; Deming v. Eailroad, 80 Mo. App. 158; Strange v. Eailroad, 61 Mo. App. 592; Barnett v. Eailroad, 75 Mo. App. 446; Brown y. Craven, 175 111. 401; Mitchell y. Eailroad, 151 N. Y. 107; Nelson y. Crawford, 122 Mich. 466; Chicago v. McLean, 133 111. 40; I. & S. L. . Co. y. Stables, 62 111. 313. (7) It has been held that damages for a nervous shock or mental injury caused by fright at an impending collision are too remote. So, for a greater reason are damages for nervous shock caused by a threatened performance of a duty. Shade v. Eailroad, 168 Mass. 287; White v. Sander, 168 Mass. 296; Ewing y. Eailroad, 147 Pa. St. 40; Victorian Commrs. y. Coultas, 13 App. Cas. 222; Mitchell v. Eailroad, 151 N. Y. 107; Haile v. Eailroad, 60 Fed. 557; Canning y. Williamstown, 1 Cush. 451.</p>

— Hon. Hugh Dabbs, Judge. (1) The plaintiff’s testimony is that no time was fixed. Tbis being the case the plaintiff must have produced a purchaser within a reasonable time thereafter. Hearst v. Williams, 102 S. W. 1176; Randolph v. Frick, 57 Mo. App. 400; Bradnor v. Rockdale Powder Co., 115 Mo. App. 102; Locksley v. Studebaker, 68 Atl. 98; LaForce v. Washington University, 106 Mo. App. 517.

— Eon. Eenry M. Barney, Judge. (1) There is nothing in this case, before the court, for its determination except the petition and judgment. There is no bill of exceptions in the case. Under the facts Judge Ramey had no authority on December 10, 1907, during the September term, to sign it nor to make any order. R. S. 1899, secs. 730, 731, 1079. (2) Judge Ramey was then out of office.

— Now. William G. Ellison, Judge. (1) The statute requires that every action shall be prosecuted in the name of the “real party in interest.” R. S. 1899, sec. 540. Appellant’s demurrer to the evidence at the close of respondent’s case should have been sustained and error was committed by the court in refusing to do so. State to use v. O’Neal, 151 Mo. 89; Reichenbach v. Ellerba, 115 Mo. 594; Lee v. David, 11 Mo. 114; Kingsland & Ferguson v. Chrisman, 28 Mo.

— Hon. Henry G. Timmonds, Judge. (1) Under the plaintiff’s own evidence an usurious rate of interest was charged the defendant, W. C. Woods, which under our statute rendered void the chattel mortgage under which alone plaintiffs claimed right of possession of the cattle in question. R. S. 1899, sec. 3710; R. S. 1899, sec. 3706; Koehring v. Mueniminghoff, 61 Mo. 403; Kriebohm v. Yancy, 154 Mo. 85; Bank v. Donnell, 172 M'o. 416.

— Eon. Robert B. Middlebrooh, Special Judge. (1) The court erred in admitting evidence of the statements, of the conductor after the alleged ejection. Barker v. Railway, 126 Mo. 143; Koenig v. Depot C'o., 173 Mo. 721. (2) The court erred in admitting the opinions and impressions of witnesses. 7 Am. and Eng. Ency. of Law (1 Ed.), p. 472. (3) The punitive damages were excessive.

— Eon. Walter A. Powell, Judge. (1) Defendant was not guilty of any negligence. Aldrich y. Transit Co., 101 Mo. App. 77; Rissler v. Transit Co., 113 Mo. App. 120. (2) Plaintiff was guilty of contributory negligence. He swears he saw both lights one block away, knew that they meant obstructions in the street, yet rushed along on the left-hand side of the street and ran into the hole. Smith y. Jackson, 106 Mich. 136, 63 N. W. 982; Morgan v. Penn Yan, 59 N. Y. Supp. 504.

— No». Walter A. PoiceU, Judge. (1) Tbe court erred in overruling appellant’s objection to the introduction in evidence of the note sued on. There is no evidence in the record that Casey had authority to assign the note to respondent. Lee v. Smith, 84 Mo. 304; Tennessee v. Davis, 50 How. Pr. (N. Y.) 447; Bank v. Parmalee, 95 U. S. 557; Bank v. Bank, 66 Fed. 691; Matt, vi, 24. (2) For the same reason the court erred in refusing appellant’s instruction numDer 4.

-Appeal from Jackson Circuit Court. — Now. James E. Goodrich, Judge. (1) Defendant’s demurrer to the evidence should have been sustained at the close of plaintiff’s case. Spiro v. Railroad, 102 Mo. App. 261; McCarty v. Hotel Co., 144 Mo. 397j Moore v. Railroad, 28 Mo. App. 622; Zurfluth v. Railroad, 46 Mo. App. 636; Hamilton v. Railroad, 144. Mo. App. 504; McGrath v. Railroad, 197 Mo. 105; Orcutt v. Building Co., 201 Mo. 443, and cases cited; Roscoe v. Railroad, 202 Mo. 588.

— Nott. Howard Gray, Judge. (1) The petition in this case declared on a special contract and not on quantum meruit. Chapman v. Currie, 51 Mo. App. 40. (2) The plaintiff may have the remedy of quantum meruit in a case where the defendant prevents the full performance of a contract and is therefore in fault.

— Eon. John P. Butler•, Judge. (1) The. court erred in excluding indorsements of payments on the back of the note in suit. Hence an action on the note was commenced within ten years from the date of the last payment indorsed on the note, and if the payment was made by the debtor, then an action on the note was not barred by the statute of limitations. R. S. 1899, sec. 4296; Waltemar v. Schnick’s Estate, 102 Mo. App. 142; Elsea v. Pryor, 87 Mo.

— Hon. Ghesley A. Mosman> Judge. (1) While making the joints with Wiley’s assistance, he was not performing a duty the master owed any servant, he and Wiley were on equal footing accomplishing by a joint act the common object of their employment. Both were connecting pipe from which gas was escaping, and each knew what they were about. Stephens y. Lumber Co., 110 Mo. App. 405.

— Non-. Nick M. Bradley, Judge. (1) When the return of the constable on the execution issued showed that none of the property attached could be found it was his duty to assign the bond to the plaintiff, which he did. R. S. 1899, sec. 419; State ex rel. v. Immer, 52 Mo. App. 536; Jones v. Jones, 38 Mo. 429; Hubbard v. Moss, 65 Mo. 657; Hoshaw v. Gullett, 53 Mo. 209; Weed v.'Dells, 34 Mo. 428.

— Now. Samuel O. Davis, Judge. (1) The case should have been submitted to the jury. The question of the validity of the assignment does not affect the right of the plaintiff to recover on account of money had and received. The plaintiff had the right to neglect the security and sue for the debt. Bank v. Goodloe-M'cClelland Com. Co., 93 Mo. App. 136; Owings v. McKenzie, 133 Mo. 323; McMillan v, Grayston, 83 Mo. App. 125.

— Hon. Henry M. Ramey, Judge. (1) The letters excluded should have been received in evidence. Plaintiff asked Dr. Campbell “to put it right before the company,” which was full authority to enter into the correspondence in her behalf. The correspondence was a part of the proof offered under the terms of the policy, and plaintiff by her attorney asked defendant to pay on the grounds stated therein.

— Eon. B. G. Thurman, Judge. (1) There was a disagreement as to the amount of loss when the insurer offered a sum in settlement, which insured refused to accept and thereupon the appraisal of the contract immediately became operative and no right of action could accrue to insured until there had been an appraisal of the amount of his loss or an effort put forth by assured to secure an appraisal. An action instituted before that had been done, is prematurely brought.

— Hon. Chesley A.. Mosman, Judge. (1) There was no attack made on the answer filed, by motion or otherwise. The answer sets out grounds for equitable action. The allegations fully show that in case there were two or more overflows, there should be reduction from the rents (one-half) for such years and that it was the intention of the parties to so write the lease. The omission was proven by an entirely disinterested witness whose veracity was unquestioned.

<p>Appeal from Jackson Circuit Court. — No». John G-. Park, Judge.</p>

— No». John G. Parle, Judge. (1) Tbe court erred in admitting'evidence that Tyner, the employee, who was alleged to have been incompetent, had had “fits” or was subject to “fits.” There was no evidence that Tyner had a “fit” when the accident occurred, or that the alleged fact that he was subject to “fits” had anything whatever to do with his alleged negligence.

<p>1. BILLS AND NOTES: Holder for Collection: Protest: Notice: Agency. A holder of commercial paper for collection, must be regarded as a separate and independent holder for the purpose of presentment, demand, protest and notice of dishonor; and while it may he assumed that it is the duty of the owner to communicate the facts to his agent, it is not his duty to personally perform the duties he had delegated to his agent.</p> <p>2. -: Indorser: Protest: Notice: Diligence. The question of diligence in giving notice of dishonor on a bill is a question of law where the facts are undisputed, and when disputed, for the jury under the proper instructions from the court.</p> <p>3. -: -: -: -: -. Where the indorser resides in the town he should receive personal notice or have the notice left at his residence or place of business; but if he lives in the country the notice should be addressed to his post-office; if that is not known, it should be addressed to the nearest postoffice to him if good faith and reasonable diligence fail to find his postoffice.</p> <p>4. -• : -: -: -: Evidence. On the evidence it is held that the owner, holder for collection and notary exercised reasonable diligence to ascertain the indorser’s post-office and that their failure was his misfortune.</p>

— Hon. Levin Wilcoxen Shaffer, Judge. (1) The books of account read in evidence, over the objections of appellant were improperly admitted. They were shown by the plaintiff’s witnesses not to be books of original entry. Owen v. Bray et al., 80 Mo. App. 526; Milling Co. v. Walsh, 108 Mo. 277; Gregory v. Jones, 101 Mo. App. 270; Hill v. Johnson, 38 Mo. App. 394; Martin v. Nichols, 54 Mo. App. 597, and authorities cited.

— Hon. Howard Gray, Judge. (1) Where there is a want of jurisdiction of' either the person or subject-matter, a justice of the peace who commits a party to prison is guilty of false imprisonment; and where a constable assists in effecting such imprisonment, with knowledge of the justice’s want of jurisdiction, he is also gui-lty of false imprisonment. Patzack y. Yon Gerichten, 10 Mo. App. 424; Tracy y. Williams, 10 Am.

— Now. Joshua TP. Alexander, Judge. (1) The court committed error in permitting the introduction in evidence of the notes sued on, over the objection of the defendant and garnishee, Schmitz. There being no evidence that the said notes were executed by the principal debtor, Fred H. Hoppe, and being an existing indebtedness owing to the plaintiff by.the said Hoppe. R. S. 1899, sec. 746.

<p>Error to Jasper Circuit Court. — Hon. Hugh Dabbs, Judge.</p>

— Hon. B. Cf. Thurman, Judge. (1) The arrangement between plaintiff and defendant as to putting in the crop of wheat did not create-the relation of landlord and tenant between them. Johnson v. Hoffman, 53 Mo. 504; Mosser v. Lower, 48 Mo. App. 85; Davis v. Baldwin, 66 Mo. App. 577; Shoe-mater v. Crawford, 82 Mo. App. 487.

Appeal'from Vernon Circuit Court. — No». B. G. Thurman, Judge. (1) The petition does not state a cause of action, because tbe bond sued on and set out in haec verba does not purport to cover commissions of tbe administrator. Lloyd v. Eowe, 20 N. J. Law 680; Long v. Howell, 21 N. Y. Supp. 102.

— Hon. Henry L. McGune, Judge. (1) The court should have sustained the demurrer to the evidence, (a) There was an entire failure of proof of negligence on the part of the motorman as alleged in the petition, (b) The plaintiff was guilty of continuing negligence concurring with any supposed negligence on the part of defendant. Bennett v. Railway, 122 Mo.

— Hon. Alexander H. Waller, Judge. (1) The court should not, at the instance of defendant, have given the peremptory instruction to the jury to find for the defendant. The petition stated a cause of action, and the evidence sustained the petition. The evidence and every reasonable deduction therefrom must, in this case, be considered as absolutely true. Taylor v. Short, 38 Mo. Ápp. 21; Ladd v. Williams, 104 Mo. App. 390, and cases cited; Pauck v. Beef & Pro.

— Hon. John G. . Park, Judge. (1) Appellants direct 'the court’s attention to the rule of strict construction of the rights of court officers to fees, in this State. Sinclair v. Railway, 74 Mo. App. 500; Lucas v. Brown, — Mo. App.--. (2) The $3 stenographer’s fee taxed in favor of Jackson county was wrong. The statute allows such fee only in a case “tried.” R. S. 1899, sec. 10116; R. S. 1899, secs. 679, 690; Halsey v. Meinrath, 54 Mo. App. 336; 14 Am. and Eng. Ency.

— Hon. Henry L.. McCune, Judge. (1) Mr. Carroll, the respondent, cannot maintain this suit, regardless of what conversation took place in regard to the $4,000 at the meeting held on the 30th of November, 1900. State ex rel. v. Hawes, 177 Mo. 380; Rector v. Albers, 174 Mo. 331.

— Hon. Samuel C. Davis, Judge. (1) Having based his cause of action upon contract, it became necessary for him to establish the existence of the same by the evidence before he could recover upon the same. This we cl'aim he did not do, and that for such reason the verdict has no evidence to support it. Nordyke & Marmon Oo. v. Kehlor, 155 Mo. 658; Robertson v. Shepherd and Stone, 160 Mo. 375; Leveredge v. Lipscomb, 36 Mo. App. 634; Cole v. Armour, 154 Mo. 351.

— Eon. John G. Park, Judge. (1) The court erred in refusing to sustain appellant’s application for a continuance on the ground that the petition did not describe the goods and merchandise alleged to have been sold and delivered, and no itemized account was filed with the petition, after sustaining appellant’s objection to 'the introduction of evidence on the petition, and permitting respondent to file itemized statement of account in amendment of its petition.

— -No». Henry L. McOune, Judge. (1) The directors of the Western -Stores Company never authorized the guaranty. A person holding all but two of the shares of stock of a corporation, and being also president, treasurer and general manager, cannot lawfully mortgage its property without authority of its board of directors. England v. Dearborn, 141 Mass. 590; Jones v. Williams, 139 Mo. 75. Much more is this true if the act is an ultra vires one.

Appeal irom Randolph Circuit Court. — No». George Robertson, Special' Judge. (1) The court erred in overruling defendant’s motion to require plaintiff to elect upon which canse of action stated in the second count of his petition he would proceed to trial. Bliss on Code Pleading (1 Ed.), sec. 118; Spurlock v. Railroad, 93 Mo. 530; Sims v. Railroad, 83 Mo. App. 246. (2) The court erred in holding that plaintiff could recover for permanent injury and damage to his land.

.Appeal from Barton Circuit Court. — Eon. Eenry O. Timmonds, Judge. (1) If tbe section men were guilty of no negligence •as beld by the court below, then no common law right of •action could possibly arise under the facts in this case. •At common law the defendant was not required to fence its track or put in any cattle guards. Barney v. Railway, 126 Mo. 388; Turner y. Thomas, 71 Mo. 596; Hughes y. Railroad, 66 Mo. 325; Hill v. Railway, 49 Mo.

— Eon. George IF. Wanamaker, Judge. (1) Knotvledge of Sires precludes recovery in this cause. Overton v. Meggs, 105 S. W. 208; BroAvn v. BaldAvin, 121 Mo. 115. (2) Sires is not entitled to appropriate the defendant’s property by reason of his exercise of his OAvn rights.

— Hon. Hermann Brumhaclc, Judge. (1) The court erred in admitting illegal and improper. evidence over defendant’s objection, viz.: Deed from W. B. Hoffman and wife to plaintiff. (2) Under the evidence the plaintiff was hot entitled to recover, and the court erred in not so finding. Doyle v. O’Neil, 7 Mo.

— Hon. Henry L. HcCune, Judge. (1) Instruction number 4, for plaintiff, is erroneous because it submits to tbe jury tbe questions of an injury to plaintiff’s hand, and bruising and wounding his abdomen, when there was absolutely no evidence to support either claim. Lester v. Railway, 60 Mo. 268; Duke v. Railway, 99 Mo. 347; White v. Chancey, 20 Mo. App. 397; Bowles v. Lewis, 58 Mo. App. 647; Cottrell v. Spiess, 23 Mo. App. 35.

<p>Appeal from Jackson Circuit Court. — Hon. Hermann Brumback, Judge.</p> <p>(1) Tbe court erred in giving plaintiff’s instruction, number 3, and in refusing defendant’s instructions A and E. Sepetowski v. Transit Co., 102 Mo. App. 110; Shanks v. Traction Co., 101 Mo. App. 702, (707); Sinclair v. Railroad, 133 Mo. 233; Holwerson v. Railroad, 157 Mo. 216; Watson v. Railroad, 133 Mo. 246; 1 Thompson, Com. on Negligence, 176. (2) The court erred in refusing defendant’s instructions B, C, D and <3r. Same cases cited under point 1. (3) The court should .have granted, defendant’s, peremptory instruction. Holwerson v. Railroad, 157 Mo. 216; Roenfeldt y. Railroad, 180 M'o. 554; Booth on Street Railways, sec. 380; Davies v. Railroad, 159 Mo. 1.</p> <p>(1) The issue of contributory negligence was not pleaded by the defendant and so it was not error to refuse to submit the question to the jury on this ground. Donivan v. Railroad, 89 Mo. 150; Nephler v. Woodward, 200 Mo. 187; Zalotuchin v. Railroad (Mo. App.), 106 S. W. 551; Kaminski v. Iron Works, 167 Mo. 470; Allen v. Transit Co., 183 Mo. 424. (2) Even though plaintiff was guilty of negligence in driving on defendant’s track in question, all the evidence tends to show that he tried to drive to a place of safety as soon as he saw the approaching car. If, after defendant saw, or by the exercise of ordinary care and caution on its part, coul'd have seen plaintiff’s servant in this position of peril in time, so that, by the exercise of ordinary care and by employing the means at its command it could have stopped the car with safety to the car and to those riding thereon, it carelessly and negligently failed to do so and by reason thereof the injury occurred, then the defendant is liable. Cole v. Railroad, 121 Mo. App. 611; Moore v. Transit Co., 194 Mo. 12; Feeney v. Railroad, 123 Mo. App. 431; Smith v. Railroad, 107 S. W. 22; Prendeville v. Transit Co., 107 S. W. 455; Zander v. Transit Co., 206 M’o. 464; White v. Railroad, 202 Mo. 555; Ross v. Railroad, 113 Mo. App. 605; Johnson v. The Railways, 203 Mo. 415; Klockenbrink v. Railroad, 172 Mo. 689; Baxter v. Transit Co., 198 Mo. 20; Rectenwald v. Railroad, 121 Mo. App. 595.</p>

Saline Circuit Court. — Hon. Samuel O. Davis, Judge. (1) The finding and judgment of the court were against the law. There being no sufficient evidence of cohabitation and reputation, such finding and judgment could only be on the theory that a marriage contract, per verba de praesenti, without more, was a sufficient common law marriage. This is not the law.

— No». William N. Martin, Judge. (1) Under the law of this State passing tracks must he fenced. “But the clear implication from the opinions is that tracks are imperatively required to be fenced whenever a road runs through unenclosed lands, and that loading or passing switches located away from stations must be enclosed as well as other parts of the roads,” Smith v. Railroad, 111 Mo. App. 421.

— lion. Henry L. McOune, Judge. (1) The court erred in refusing defendant’s peremptory instruction for the reason that, under the evidence and the pleadings, the plaintiff was not entitled to recover. Reno v. Railroad, 180 Mo. 486; Grout v. Railroad, 102 S. W. 1029; Rissler v. Transit Co., 113 Mo. App. 125; Heintz v Transit Co., 115 Mo. App. 670; Heinzle v. Railroad, 182 Mo. 555; Ruchenberg v. Railroad, 161 Mo. 70.

— -No». Henry K. McOune, Judge. (1) Under the petition in the case at bar, actual fraud is alleged, so that the measure of damages would be the actual loss sustained by plaintiff. Stone Cutter Co. v. Scott, 157 Mo. 525; VanCleave v. Berkey, 148 Mo. 136; Leonard v. Springer, 197 111. —; Hindman v.Bank, 112 Fed. 931, 50 C. C. A. 623, 57 L. R. A. 108.

Jackson Circuit Court. — Eon. James E. Blover, Judge. (1) The peremptory instruction given by tbe court of its own motion (in such language as to render useless the discussion of the instructions asked by appellant) was erroneous. R. S. 1899, sec. 4340; Glaves v. Wood, 87 Mo. App. 97. (2) This instruction forced the jury to believe respondent’s testimony on all other issues, in spite of its contradictions.

— No». Edivard N Porterfield, Judge* (1) This is an agreed case under section 793,. Revised Statutes 1899, which is a case without action,, which means without filing a suit; having summons issue and having the defendant brought into court against his will, followed by the usual steps in a suit; and it is to be distinguished from cases where there is an-agreement after suit is begun, as to certain evidential facts.

— Now. Hermann Brumbaclc, Judge. (1) Defendant’s motion in arrest of judgment should have been sustained. 1 Ency. of Pleading and Practice, p. 159, note 1; Pucket v. Railroad, 25 Mo. App. 650; Steigliger v. Railroad, 38 Mo. App. 511. A wrongdoer is not bound to submit to more than one action for damages. Insurance Co. v. Railroad, 74 Mo. App. 106; Railroad v. Insurance Co., 53 Neb. 514; Insurance Co. v. Railroad, 41 S. C. 408; Watts v. Telephone Co., 66 Fed. 453.

— Hon. Howard Gray, Judge. (1) The court erred in giving the instruction, covering the whole ease, on plaintiff’s part, as such instruction, on different vital issues in the cause, contained numerous improper assumptions and illegal charges to the jury. Harrington v. Railroad, 71 Mo. 386; Rowen v. Railroad, 198 Mo. 654; Rowen v. Railroad, 82 Mo'. App. 27; Stumpe v. Railroad, 61 Mo.

— Eon. E dioar d E, Porterfield, Judge. (1) It was error for the court to submit to the jury the duty of construing the written contract introduced in evidence. To construe the contract was exclusively the duty of the court. Burress v. Blair, 61 Mo. 139; Charles v. Railroad, 124 Mo. App. 303; Bastress v. Chickering, 18 111. App. 198, 130 111. 206. (2) The contract is not a contract of bailment. It is not a contract of consignment.

— No». John G. Park, Judge. (1) The court erred in giving a peremptory instruction on behalf of defendant at the close of plaintiff’s case. (2) The deed introduced in evidence does not bar his rights. Sneathen v. Sneathen, 104 Mo. 201; White v. Pollock, 117 Mo. 467; Fischer Leaf Co. v. Whipple, 51 Mo. App. 184; Allen v. DeGroodt, 105 Mo. 449; Williams v. Latham, 113 Mo. 165; Marshall v. Hartzfelt, 98 Mo. App. 178; Bray v. Conrad, l'Ol Mo. 332; Linville v. Greer, 165 Mo. 380.

— No». Hennf L. McCmie, Judge. (1) Tbe lack of an order of the board of aldermen of Westport, for the newspaper publication of the board’s resolution declaring tbe necessity of tbe street pavement, is fatal to tbe validity of sucb publication and tbe special ■ taxbills.

— Noil Edward P. Gates, Judge. (1) Upon the evidence introduced plaintiff was not entitled to recover upon either the first or second counts of his petition. Therefore, in overruling said instructions to said first and second counts the court committed reversible error. Mooney v. Kennett, 19 Mo. 551; Christal v. Craig, 80 Mo. 367; Lancaster v. Insurance Co., 92 Mo. 460; Lang v. Oppenheimer, 96 Ind. 47; Greenwood v. Cobbey, 30 Neb. 579.

<p>Appeal from Jackson Circuit Court. — Hon. Heivry L. MeOune, Judge.</p> <p>(1) Jurors should not be permitted to base their verdicts on mere conjecture. McCarthy v. Fagin, 42 Mo. App. 606; Murdock v. Brown, 16 Mo. App., 548; McOoney v. Wallace, 22 Mo. App. 377; Peck v. Railroad, 31 M'o. App. 123; McGrath v. Transit Co., 197 Mo. 97; Cothron v. Packing Co., 98 Mo. App. 343. (2) Proof of the existence of a defect in appliances in itself does not establish a right of recovery. Breen v. Cooperage Co., 50 Mo. App. 202; Brown v. Lumber Co., 65 Mo. App. 162; Plefka v. Knapp, 145 Mo. 316. (3) The •evidence fails to show negligence on the part of the defendant, as charged in the petition. 20 Am. & Eng. Ency. of Law 78; Pleasants v. Railroad, 120 N. O. 402; Pleasants v. Railroad, 61 Am. St. 674; Kappes v. Shoe Co., 116 Mo. App. 165; Pnrcell v. Shoe Co., 187 Mo. 276; Labatt on Master and Servant, sec. 590. (4) The delinquent coservant may have failed to use the instrumentalities furnished, and so created the abnormal danger which caused the injury. Labatt, Master and Servant, secs. 590, 593, and cases cited in footnotes; Guggenheim v. Flanigan, 62 N. J. L. 354, 42 Atl. 145; Kimmer v. Webber, 151 N. Y.. 417, 45 N. E. 860; Lambert v. Pulp Co., 72 Yt. 278. (5) If Flisk was in any manner negligent, his act was that of a fellow-servant. Foley v. The Peninsular, 79 Fed. 972; Deehan v. The Bolivia, 59 Fed. 626; Kenny v. The Cunard, 52 N. Y. Sup. 434; Labatt, Master and Servant, sec., 594; Griffiths v. Gidlow, 3 Hurlst & N. 648; Ludlow v. Bridge Co., 42 N. Y. Supp. 343; McPhee v. Scully, 163 Mass. 216; Pierce v. Oliver, 18 Ind. App. 87; Collyer v. Railroad, 49 N. J. L. 59; Bagley v. Gas Co., 39 N. Y. Supp. 302; Frawley v. Sheldon, 20 R. I. 258; Snyder v. Mining Co., 2 Idaho 771; Railroad v. Becker, 38 111. App. 523; Tobin v. Friedman, 67 111. App. 149; Kraeft v. Mayer, 92 Wis. 252; Gaeghegan v. Atlas Co., 146 N. Y. 369; Quebec Co. v. Merchant, 133 TJ. S. 375; Sofield v. Smelting Co., 64 N. J. L. 605; Filbert v. Canal Co., 121 N. Y. 207; The Louisiana, 74 Fed. 748; Olson v. Coal Co., 104 Fed. 574.</p> <p>(1) The negligence of the defendant was the proximate cause of plaintiff’s injury. Wendler v. Furnishing Co., 165 Mo. 541; Schultz v. Moon, 33 Mo. App. 340; Shore v. Bridge Co., Ill Mo. App. 287; Hallweg v. Telephone Co., 195 Mo. 149. (2) Defendant is liable for neglect of the duty it owed the plaintiff even though the negligence of a fellow-servant contributed to the injury. Cole v. Transit Co., 183 Mo. 94, cases cited.</p>

<p>1. MASTER AND SERVANT: Evidence: Elevator Weight: Physical Facts. Held, that under the circumstances the evidence of an elevator operator that a weight fell down the main shaft was supported and not contradicted by the physical facts. Held, further, that the theory that such weight in descending struck a servant looking into the shaft is likewise supported and not contradicted by the physical facts.</p> <p>2. -: -: -: Defective Brake. Held, the trial court properly refused to treat as an issue to go to the jury the question whether an elevator brake was in proper repair ■or not.</p> <p>3. -: -: Prior Fall of Elevator. Held, evidence relating to the prior fall of the elevator and its weight, was substantial testimony and consistent with the physical facts.</p> <p>■4. -: -: -: Rule: Scienter. Evidence of other important and disconnected acts of negligence are not admissible to show negligence in the particular case; but this rule has no application to master and servant cases where the prior occurrences appear to have a direct bearing on the instrumentality from which the servant received his injury and the master’s knowledge thereof.</p> <p>5. -: Elevator Shaft: Infant Employees: Negligence. The owner of an elevator operated in a large department store where juvenile employees come in contact with the elevator shaft owes them the duty to keep such elevator in reasonably safe repair so that dangerous things may not be thrown down the shaft, notwithstanding it keeps posted over every opening in such shaft “keep heads out;” and whether the failure so to do is negligence, is a question for the jury.</p> <p>•6. -; -; -: -: Contributory Negligence. Whether the conduct of a cash-girl thirteen years of age in loading an elevator and then in poking, in the face of warning, her head into the shaft, constituted contributory negligence, is a question of fact for the jury and not of law for the court.</p>

— Eon. Louis Hoffman, Judge. (1) While a mere receipt may he explained or contradicted yet when it is contractual in its nature and is given as evidence in the settlement of a disputed claim,, it is like any other written contract and cannot he disputed or contradicted by parol evidence.

— No». Alexander N. Waller, Judge. (1) This being an equity case, the appellate court will review the whole evidence for the purpose of determining the case on its merits. Nichols v. Nichols, 39 Mo. App. 291; Drosten v. Mueller, 103 Mo. 634; State ex rel v. Jarrott, 183 Mo. 204; Rumsey Mfg. Co. v. Kaime, 173 M'o. 551. (2) A general agent is one who is authorized, to do all acts connected with a particular trade, business or employment. T A. & E. Ency.

— Hon. Edward P. Gates, Judge. (1) The court committed error, both in not sustaining a demurrer to plaintiff’s evidence, and in refusing to instruct the jury at the close of all the evidence to return a verdict for the defendant.

— Hon. Henry M. Barney, Judge. (1) The evidence is insufficient to warrant a finding that the horse which died contracted pneumonia or that the other two who became sick contracted the fever as the result of any negligence on defendant’s part. Railroad v. Brosins, 105 S. W. 1131.

— Eon. B. G. Thurman, Judge. (1) Néither the failure to give the crossing signals, nor the failure to place and maintain gravel or macadam on the road crossing, was the proximate cause of the injuries complained of, and these being the only grounds of negligence relied on in this case, no liability was established.

— No». Howard Gray, Judge. (1) The court should have given the peremptory instruction at the close of all of the evidence. Nugent v. Milling Co., 131 Mo. 252; Deane v.- Transit Co., 192 Mo. 584; Gurley v. Railroad, 104 Mo. 233; McLachlin y. Faker, 64 Mo. App. 511; Railroad 'v. Collier, 157 Fed. 347. (2) An examination of the testimony in this case will clearly show that the verdict of the jury is against the weight of the evidence.

<p>Appeal from Randolph Circuit Court.— Hon. Willard P. Gave, Special Judge.</p>

<p>1. CARRIERS: Damage: Notice: Waiver: Intention. Ordinarily a waiver should be made within the time limit for giving notice of loss, but evidence is admissible to show an intention to waive after the limit of such time; and the evidence in this case supports such intention.</p> <p>2. -; Delay: Negligence: Evidence. Causes that will excuse unusual delay in forwarding a shipment are those that cannot be reasonably anticipated, controlled or avoided, and the evidence fails to show such in this case.</p> <p>3. -: Delivery: Unloading Place: Evidence. Under the evidence, held, the carrier did not deliver the cattle at the unloading place hut at another place; and the rule in the case of Ratliff v. Railroad, 118 Mo. App. 644, does not apply.</p> <p>4. -: Damage: Evidence: Minimizing Loss. One injured by the act of another must use reasonable diligence to protect himself and thereby prevent additional damage; and it is error to refuse evidence tending to show a failure to use such diligence.</p> <p>5. -: -: -: -: Trial Practice. Where the court erroneously refused to allow a witness to testify as to certain facts but subsequently allows other witnesses to testify and rules that the evidence is admissible, it is the duty of the party tendering the evidence to recall the witness whose testimony was refused, and if he fails to do so, he cannot complain of the original ruling.</p>