Volume 133 — Missouri Appeal Reports

— Hon. B. G. Thurman, Judge. The approval by the council of a plat of a pro-' posed addition to a city, is in no sense an acceptance of a street thereon as a public highway, nor does it cast upon the city the duty of keeping such street in repair.

— Hon. Thomas J. Seehorn, Special Judge. Under the evidence in this ease respondents were not the procuring cause of the sale to Katherine Wolfe and the demurrer submitted by appellant at the close of the evidence should have been sustained. Crone v. Trust Co., 85 Mo. App. 601; Goffe v. Gibson, 18 Mo. App. 1; Stinde v. Blesch, 42 Mo. App. 580; Wright & Orrison v. Brown, 68 Mo. App. 577; Brennan v. Roach, 47 Mo. App. 290.

— Hon. Nicholas M. Bradley, Judge. (1) In order to constitute a causé of action, three things devolve upon the plaintiff; First, that the injury must appear to have occurred at a place where there was no lawful fence; Second, at a place where such fence could have been erected by the company should it have so desired; and third, that it occurred at a place other than the crossing- of a public highway and not within the limits of any incorporated town or city.

— Hon. Walter A. Powell, Judge. The evidence of Mr. White, discovered after the trial, was material in defendant’s behalf and should have secured it a new trial. State v. Morgan, 96 Mo. App. 343; Mersch v. Sippy, 102 Mo. App. 559. (1) Courts are extremely reluctant to grant new trials on the ground of newly-discovered evidence. State v. Morgan, 96 Mo. App. 343; Cook v. Railroad, 56 Mo. 380; State v. Sansone, 116 Mo. 1.

— Hon. Howard Gray, Judge. (1) As has been recently said by this court: On demurrer by defendant to the evidence the facts most favorable to plaintiff will be accepted as the facts in the case supported by substantial evidence. Fassbinder v. Railroad, 104 g. W. 1154; Berry v. Railroad, 124 Mo. 245; Montgomery v. Railroad, 181 Mo. 504; Holloway v. Kansas City, 184 M'o. 29; Moore v. Transit Co., 95 Mo. App. 728.

Hon. Thomas J. Seehorn, Judge. (1) We contend that the company is not liable for a loss under this condition of the policy contract for the reason that the damage happened by and in consequence of a fire and that the proximate cause of the loss was brought about by and in consequence of the fire. Insurance Co. v. Boone, 95 U. S. 117; Gordon v. Eimington, 1 Campbell 123; Holwerson y. Eailroad, 157 Mo. 230; Saxon v. Eailroad, 98 Mo.

<p>1. RECEIVERS: Discharge: Right to Sue. On final discharge a receiver ceases to be a representative of his court and can neither sue nor be sued as such.</p> <p>2. -: -: -. A receiver appointed by a foreign court is entitled to sue in the courts of this State.</p> <p>3. -: -: -: Abatement of Action. The fact that a foreign receiver may be discharged by his court after he has brought suit in this State, will not authorize the abatement of the action, which may be prosecuted in his own name or in that of his transferees.</p>

Louis City Circuit Court. — Hon. Geo. N. Shields, Judge. The court erred in overruling defendant’s challenge of juror Meyer for cause. Billmeyer v. Transit Co., 108 Mo. App. 6; Theobald v. Transit Co., 191 Mo. 395; Gibney v. Transit Co., 204 Mo. 704. Rudolph Meyer did not sign the verdict, and no error was committed. Williamson v. Transit Co., 202 Mo. 368.

— Hon. Henry C. Riley, Judge. The first error contended for on the part of the appellant as being reversible is the action of the court in permitting witness Gus. Richards to'testify as to his general reputation as being a quarrelsome, dangerous and turbulent man, over the objection of appellant.

— Hon. E. R. McKee, Judge. Tbe subscribers for stock in a proposed, or the stockholders in an illegal corporation, are liable as partners, and they are liable as partners among themselves and the defective corporation if they have knowledge of the fact and take part in the management of the business. 4 Current Law, p. 91.0; Telephone Co. v. Telephone Co., 84 S. W. 515; Robinson v. Bank, 79 S. W. 103; Bolton v. Prather, 80 S. W. 666.

— Hon. Henry C. Riley, Judge. To determine whether the second petition is an amendment or the substitution of a new cause of action, the following tests must be applied: First. The same evidence must support both petitions. Second. The same measure of damages must apply to both petitions. Scorill v. Glasner, 79 Mo. 449; Liese v. Meyer, 143 Mo. 547; Purdy v. Pfaff, 104 Mo. App. 331.

— Hon. Henry C. Riley, Judge. (1) A- mortgage is a matter material to the risk and a failure to disclose the same when disclosure is required avoids the policy. Oagle v. Insurance Co., 75 Mo. App. 215; Holloway v. Insurance Co., 48 Mo. App. 1, affirmed on this point, 121 Mo. 87; Baxter v. Insurance Co., 65 Mo. App. 255; Hubbard v. Insurance Co., 57 Mo. App. 1; Harness v. Insurance Co., 62 Mo.

<p>WITNESSES: One Party Dead: Agency. In an action on a promissory note in favor of a corporation, the defendants, makers of the note, were not competent witnesses to testify to a settlement whereby the indebtedness represented by the note was cancelled, where it was shown that the agent of the corporation, who negotiated the settlement and made the contract cancelling the indebtedness, was dead at the time of the trial.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge.</p>

Louis City Circuit Court. — Hon. Jesse McDonald, Judge. This instruction offered by defendant predicated his defense on an alleged breach of contract. The court undertook to modify this instruction, which from the wording of the instruction seemed impossible. Now, as there was no counterclaim filed, nor contract put in evidence that instruction was certainly bad, the only question in issue was the reasonable value of the material furnished by plaintiff. Baer v. Lisman, 85 Mo.

— Hon. J. L. Fort, Judge. (1) Where the deed expresses a consideration, the grantor is estopped to deny the title passed Avhether the consideration is paid or not, and no use can be raised in the grantor. Bobb v. Bobb, 7 Mo. App. 501. An ac-lcnoAvledgment is not necessary to the validity of the deed as between the parties. The purpose of the acknoAvledgment is- to make the deed admissible to record. Louisville v. Greene, 165 Mo. 308.

— Hon. Henry C. Riley, Judge. (1) The plaintiff by Ms allegation made his petition clear by declaring Ms intent to proceed against the defendant for failure to furnish him reasonably safe appliances to do his work. Butts y. Long, 94 Mo. App. 687; Sidway v. Land & Live Stock Co., 163 Mo. 342; Stillwell v. Hand, 97 Mo. 579; Sexton v. Railroad, 98 Mo. App. 494; Loehr y. Murphy, 45 Mo. App. 519.

— Hon. H. G. Riley, Judge. There is no proof, nor is there any contentiofi, that the alleged oral contract made by Tucker (but not by King), with Pingle was ever ratified by the company. Unless it be held that Pingle was an agent whose powers as to the matters in issue were of a general character, the admission of this testimony was error. R. S. 1899, sec. 974; Hardware Co. v. Grocer Co., 64 Mo. App. 677; Famous, etc., Co. v. Iron Works, 51 Mo. App. 66.

Louis City Circuit Court. — Hon. Dan’l D. Fisher, Judge. (1) Plaintiff was entitled to withdraw from defendant’s litigation not only because of the false representations which induced him to enter into the contract with reference to the first suit, but also on account of defendant’s failure to pay plaintiff for his services in accordance with their original agreement. Evans v. Bell, .6 Dana (Ky.) 479.

— No». Jas. L. Fort, Judge. (1) The evidence of plaintiff shows that the deceased had been working for the company quite a while and was on this road for ten days and knew the condition of the road of which plaintiff makes complaint, and no complaint, so far as the testimony shows, was ever made to the defendant in this case, but the deceased went on working for the company, and, of course, by reason of that and by his own acts, must be held to have assumed the risks of the…

— Hon. J. D. Barnett., Judge. (1) A contract will be held illegal though it does not involve the commission of an indictable offense, or the violation of a statutory prohibition, although the formation of it does not amount to the offense of conspiracy, if it involves or contemplates the perpetration of a fraud upon a third person. Ward v. Hartley, 178 Mo. 135; Siver v. Guaranty Co., 183 Mo. 41; McClure v. Ullman, 102 Mo. 697; Pendleton v. Asbury, 104 Mo.

<p>Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge;</p> <p>The court sustained objections to the proffered testimony on the theory that it was a self-serving statement. But this was error. The testimony was admissible as a part- of the res gestae, a statement made by the defendant when he is charged with the theft of the property or when being arrested for stealing it, and said property yet being in his possession and in the presence of himself and the officer. This is Hornbook law. 2 Bishop', New Crim. Proc. (4th Ed.), sec. 746; State v. Ware, 62 Mo. 60.1; Abbott’s Trial Brief, p. 473 (171); 25 Cyc. Law and Proc. p. 138 (d).</p>

Louis City Circuit Court. — Eon. Jas. K. Kmeaty, Judge. (1) The denial of the right of trial by jury was error. This proposition is not open to dispute, if the action was properly one of law. Mo. Const., art. II, sec. 28; Rogan v. McCoy, 29 Mo. 356; Donovan v. Barnett, 27 Mo. App. 460; Hardware Co. v. Wolter, 91 Mo. 484; New Harmony Lodge v. Railroad, 100 Mo. App. 407. (2) Under the facts pleaded and proven there was never any partnership between the parties.

<p>1. CARRIERS OF PASSENGERS: Negligence: Contributory Negligence. Many of the propositions involved in this case were considered and settled on a former appeal. [120 Mo. App. 328.]</p> <p>2. PERSONAL INJURIES: Measure of Damages: Loss of Earnings: Pleadings. In an action for damages on account of personal • injuries where the petition alleged that the plaintiff would lose earnings on account of the injuries hut failed to allege that he had lost them, this was sufficient to entitle him to a verdict for whatever earnings he had lost from the time of filing the petition up to the time of the trial, as well as earnings he would lose in the future. He was entitled to a verdict for such loss of earnings although he filed an amended petition long after the trial,’ in which the only allegation re>lating to the loss of earnings was that he would lose them in the future; the amended petition related back to the commencement of the action, so that the allegation would include all that he would lose from the date of the action.</p> <p>3. -: -: -: Evidence. Where plaintiff in an action for damages on account of personal injuries claimed damages for loss of earnings and it was shown that his arm was broken whereby he was disabled and that the arm was rendered stiff and that he suffered pain from it and that he laid off from work for several months after the accident, this was sufficient to warrant a conclusion that he had lost earnings by reason of his injury.</p>

— Now. David N. Ely, Judge. The trial court should not have sustained respondent’s motion to strike out part of the answer of the appellant setting up the defense of limitation of one year for bringing suit and pleading that this was an Illinois contract and that the limitation was good under the laws of Illinois. This contract having been made in the State of Illinois and this clause being a valid contract under the laws of that State, is a valid defense in Missouri.

Louis City Circuit Court. — Now. Jas. E. WithrowJudge. (I) The burden of proof being on the defendant, the court erred in refusing to permit counsel for defendant to open and close tbe argument to the jury. Bank v. Metcalf, 29 Mo. App. 384; Bates v. Forclit, 89 Mo. 121; Beller v. Supreme Lodge, K. P., 66 Mo. App'. 499; Quarry Oo. v. Construction Co., 72 Mo. App. 350. (2) The court erred in giving instruction number 2, at the request of plaintiff. Oexner v. Loebr, 117 Mo.

<p>SALES: Assumpsit: Agency: Fraud. In an action in assumpsit for the value of several carloads of brick, where it was shown that the defendant ordered the brick from a third person, that the brick was shipped by the plaintiff and that the defendant paid the third person who obtained possession of the bills of lading by permission of the plaintiff, in the absence of fraud or collusion betwen the defendant and the third person, and in the absence of evidence to show that such third person was defendant’s agent, the defendant was not liable.</p>

<p>Appeal from St. Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge.</p> <p>(1) The undisputed evidence is that Enderle made-the note sued on, of date January 25, 1898, and that a number of days after that date, the note being then in the-possession of the plaintiff and at the plaintiff’s place of business, the defendant placed his name on the back of the said note; therefore, the law. presumes: (a) That the note had been delivered by Enderle to the plaintiff' bank. 1 Daniel on Negotiable Instruments (5th Ed.), sec. 65, p. 84; Griswold v. Davis, 31 Yt. —; Knapstein. v. Tinnette, 156 111. 322. (b) That the note had been delivered by Enderle to the plaintiff, on the day of its date, January 25, 1898. Daniel on Negotiable Instruments (5 Ed.), sec. 65, and cases cited. Cranston v. Goss, 107 Mass. 139; Emery v. Vinall, 26 Me. (c) That the note took effect on the day of its delivery, i. e., on January 25, 1898. (2) It is the well-settled law that one not a payee nor an endorsee on a note, who places his name thereon after the delivery thereof to the payee, becomes, if, anything, merely a guarantor. Howard v. Jones, 10 Mo. App. 81; Howard v. Jones, 13 Mo. App. 595; Adams v. Huggins, 73 Mo. App. 110; Lowenstein v. Sorge, 75 Mo. App. 280; Hill v. Combs, 92 Mo. App. 212. (3) The uncontradicted evidence having disclosed that the defendant Pryibil placed his name on the back of the note sued on, some days after its execution and delivery to the bank by Enderle, was at least some evidence that Pryibil was a guarantor and not a joint maker of the note, and the refusal of the court to give an instruction as to the legal effect of Pryibil’s endorsement of the note after its execution and delivery by Enderle, ignored a part of the evidence in the case, and in effect told the jury to ignore it. The instructions “should embrace all the issues which there is any evidence to support.” “Instructions should be given with reference to the whole case and not with reference to a few of the facts involved.” Hoffman v. Parry, 23 Mo.App. 20; Wyatt v. Railroad, 62 Mo. App. 108; Ravsdon v. Trumbo, 52 Mr. 35; Chappell v. Allen, 38 Mo. 213; Fitzgerald v. Hayward, 50 Mo. 516; Jackson v. Boyles, 67 Mo. 609; Greer v. Parker, 85 Mo. 107. The defendant Pryibil, having written his name on the back of the note after its execution and delivery by Enderle to the bank became a guarantor of the said note. His obligation to the plaintiff was not a joint obligation with Enderle, but a separate, distinct and independent engagement of the defendant’s own. Corbyn v. Brokmeyer, 84 Mo. App. 652; Stagg y. Linnenfelser, 59 Mo. 336; Burnham y. Gosnell, 47 Mo. App. 637; Powell v. Thomas, 7 Mo. 221.</p> <p>(1) “It has long been the settled law of this State that one who writes his name on the back of a note of which he is neither payee or endorser, becomes prima facie liable as a comaker, and will be held to be such in the absence of extrinsic evidence that it was the contract or understanding of the parties at the time he so endorsed it, that he should be liable only as an endorser.” Appellant is therefore liable on the note as comaker unless he has established a contract or understanding at the time, that his liability should be something different. Boyer v. Boogher, 11 Mo. App. 130; Powell v. Thomas, 7 M'o. 440; Baker v. Block, 30 Mo. 225; Cahn v. Dutton, 60 Mo. 299; Semple v. Turner, 65 Mo. 697. (2) To overcome this prima-facie liability as a comaker, and make it that of a guarantor or surety in this case, appellant must show that he did. not place his signature on the note or agree to do so until after it had been negotiated and delivered by Enderle to the bank, and Enderle had received the consideration therefor from the bank; that the deal between Enderle and the bank had been wholly completed, and that he, Pryibil, signed the note as a subsequent and distinct transaction, not in any way connected with the formation of the note. Howard v. Jones, 13 Mo. App. 596; Hill v. Combs, 92 Mo. App. 252; Bank v: Wells, 98 Mo. App. 573; Stagg v. Lingensfelter, 59 Mo. 342; Lowenstein v. Sorge, 75 Mo. App. 281; Oorbyn v. Brockmeyer, 84 Mo. App. 649. (3) “No contract arises upon a bill of exchange or promissory note until the delivery of the instrument. By delivery is meant a transfer of the possession of the instrument with intent to transfer the title thereto and the acceptance thereof with intent to receive title.” 4 Am. and Eng. Ency Law, 201-202.</p>

Louis City Circuit Court. — Hon. Chas. Claflin Allen, Judge.

<p>Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.</p>

Apueal from St. Louis City Circuit Court. — Son. O’Neill Ryan, Judge. (1) It is a good defense to a motion against a stockholder by a creditor that the stock holder has already paid corporate debts to an amount equal to that for which he is liable under the statute, existing as a claim in his favor prior to nulla bona return. 26 Am. and Eng. Ency. Law (2 Ed.), 1026; Webber v. Leighton, 8 Mo. App. 502; Bank v. Bank, ISO Mo. 169; Coquárd v. Pendergast, 35 Mo.

Louis Circuit Court. — Son. Jesse A. McDonald, Judge. (1) An interlocutory default can, for good cause shown, be set aside at any time before final judgment, but not afterward, when the statutory method (secs. 777, 778) is a defendant’s only remedy. R. S. 1899, sec. 779; Matthews y. Cooke, 35 Mo. 289; Burnes v. Burnes, 61 Mo. App. 616; Billingham y. Com. Co., 115 Mo. App. 157; Rumsey y. Baker, 35 Mo. App. 217.

Louis City Circuit Court. — Hon. Geo. N. Shields, Judge. (1) The provisions in the lease as to the effect of the failure to procure the saloon license referred only to the first license, the one that was being sought when the lease was signed. The court therefore erred in refusing plaintiff’s instructions and giving defendant’s. Construction Co. v. Tie Co., 185 Mo. 25; 17 Am. & Eng. Ency. of Law (2 Ed.), p. 2; Hanna v. Land Co., 126 Mo. 1.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) On appeal from an order granting a new trial a reversal can be bad only where the order has wrought manifest injustice, or shown an unjudicial bias. Taylor v. Architectural Co., 47 Mo. App. 257. (2) “The rule is that the granting of a new trial rests peculiarly within the discretion of the trial court.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge.- (1) The petition does not allege- any contract or agreement on the part of defendants to alter the premises or to make any change therein. In the absence of such an. agreement, the defendant was not bound to do so, and the alleged defect not being latent or concealed,, but open, obvious and visible, defendant cannot be held liable. 18 Am. and Eng. Ency. Law, p. 215; Taylor’s Land! and Ten.

Louis City Circuit Court.— Hon. Geo. H. Shields, Judge. (1) Drawing a line through the name designating the boundary without erasing it, and uniting over it another name, does not in law constitute an alteration. An alteration is an act done upon the instrument by which its meaning or language is changed.

Louis Court of Criminal Correction.— Hon. Wilson A. Taylor, Judge. (1) In order to constitute the crime of larceny, it was incumbent upon the State to establish beyond a reasonable doubt that the property charged to have been taken, was that of Amanda Rose and that it was taken without her consent. This it failed to do. R. S. 1899, sec. 1910; State v. Waller, 174 Mo. 518.

Louis County Circuit Court. — Hon. J. W. McElhinney, Judge. Only the record proper in this cause is before this court, no exceptions having been saved to the rulings of the trial court sustaining the motion to affirm the judgment of the justice and overruling the motion for leave to amend the notice served on plaintiff at the term when said rulings were made. The record proper shows no error.

<p>DIVORCE: Jurisdiction: Residence In County. Under the provisions of section 2922, Annotated Statutes of 1906, requiring proceedings in divorce cases shall be had in the county where plaintiff resides, where the plaintiff in a divorce case to which the defendant had answered and filed a cross-bill, admitted in his testimony that he was a resident of another county from that in which suit was brought, his bill and the cross-bill of the defendant were properly dismissed.</p>

Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge. ■ (1) Instruction No. 3 for respondent is erroneous: (a) Because it assumes and takes it for granted or admitted by appellant that tbe Southern Railroad Company was in possession of tbe car between Winona and West Point, wbicb is not the case. Cole v. Long, 1 Mo. App. 315; Dulaney v. Sugar Co., 42 Mo.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) Plaintiff’s action is in tort and based upon tbe negligence of the defendant in failing to exercise ordinary care for the protection of plaintiff’s property while in its custody; and under the pleadings and evidence offered by plaintiff, the case should have gone to the jury. Davis v. Railroad, 89 Mo. 340; Lamar Mfg. Co. v. Railroad, 117 App. 453; Pinkerton v. Railroad, 117 Mo.

— Hon. Jas. T. Ne-ville, Judge. Statement. — This is a suit in equity to enjoin the respondents, as judges of the county court of Stone county, from issuing to L. U. Crawford, a warrant to pay said Crawford for services rendered as an expert accountant in examining, checking up and auditing the accounts of various officers of Stone county, pursuant to employment by the county court.

<p>Appeal from St. Louis City Circuit Court. — Hon. D. D. Fisher, Judge.</p>

<p>1. LOCAL OPTION: Notice of Election: “Will be Held.” A notice of a local option election which recited in full the order of the County Court ordering it, stating a full compliance with all prerequisite steps, with full directions as to how the election should he held, and stating that it “was ordered” by the county court “that a special election be held,” etc., was sufficient without declaring directly that an election “will be held.”</p> <p>2. -: -: Time of Opening and Closing Polls. It was not necessary for such notice to designate the time at which the polls should open and close; section 3027, Revised Statutes 1899, provides that such elections shall be conducted in accordance in all respects with the laws governing general election, and they prescribe the time for opening and closing.</p>

<p>1. CARRIERS OF PASSENGERS: Negligence: Res Ipsa Loquitur. Where a hose wagon, while driven rapidly to a fire, ran against a street ear which was passing on a cross street, with such force as to injure a passenger on the car, the accident was such that it would not have happened had the managers of the car exercised proper care; and in a suit by the passenger against the street railway company the doctrine of res ipsa loquitur applies.</p> <p>2. -: -: Prima-Facie Case. In such case where the plaintiff’s evidence showed that the gong of the hose wagon was constantly sounded, that when the car was 120 feet from the crossing a bystander rushed into the middle of the track and signaled the car to stop, that the car could be stopped in a distance of ninety feet, plaintiff made out a prima-faeie case of negligence on the part of the street railway company.</p> <p>3. DAMAGES: Permanent Injuries: Evidence: Instruction. In an action for personal injuries where a physician testifying fox-plaintiff said that the bone of plaintiff’s injured limb was thickened, and the muscles atrophied, and that in his opinion the injury would he permanent, this was sufficient to warrant an instruction submitting the question of pex-manent injury.</p> <p>4. PRACTICE: Instruction: Limiting Amount of Verdict. In an action for damages an instruction on the measure of damages, which did not limit the amount recoverable to amount sued for, w”! not reversible error where the verdict was for less than that amount.</p> <p>5. STREET RAILWAYS: Last Chance: Conductor and Motorman. It is the duty of the conductor as well as the motorman, ■ in charge of a street car on being apprised of danger of a collision, to exercise care to stop the car in time to avoid it.</p> <p>6. PRACTICE: Instruction: Omitting Necessary Elements. An instruction which correctly states an abstract proposition of law, but fails to require a finding of facts necessary to a recovery, is erroneous.</p>

— New. John G. Parle, Judge. (1) Proofs of death are admissible in evidence and are prima-facie proof of the facts stated therein against the beneficiary and on behalf of the society, the same being admissions by her. Insurance Co. v. Newton, 22 Wall. 32; Benefit Assn. v. Sargent, 142 U. S. 691; Hassencamp v. Insurance Co. (C. C. A.), 120 Fed. 475; Walther v. Insurance Co., 4 Pac. (Cal.) 413; Modern Woodmen of Am. v. VonWald, 49 Pac. (Kan.) 782.

— Hon. W. D. Bush, Judge. (1) The property insured was not a drugstore. Defendant’s policies were issued to insure a drugstore and such goods as are usually kept for sale in a drugstore. They do not purport, and were not intended to insure any other class of property and the fact plaintiff conducted a saloon and saloon business in the place created a new risk and condition not insured against. RossLangford y. Insurance Co., 97 Mo. App. 79; Mensing y. Insurance Co., 36 Mo.

— Now. Ghesley A. Mosman, Judge. (1) The court erred in giving the peremptory instruction against defendant Toll and in refusing his demurrer. The changes in the contract discharged Toll as surety, and entitled him to judgment. Chapman y. Emberg, 95 Mo. App. 127; Lumber Co. y. Gates, 89 Mo. App. 201; Eldridge v. Fuhr, 59 Mo. App. 44; Killoven v. Meehan, 55 Mo. App. 427; Burnes Estate v. Fidelity Dep. Co., 96 Mo. App. 467. (2) Plaintiff’s eighth instruction was erroneous.

— -No». John G. Park, Judge. (1) The petition does not state a cause of action at. common law, nor does it state facts’ sufficient to bring it clearly witliin the statute. Case y. Cordell Zinc Co., 103 Mo. App. 477; Barker y. Railroad, 91 Mo. 86; Barron y. Lead & Zinc Co., 172 Mo. 228; Hewitt y. Harvey, 46 Mo. 368; Pitt y. Daniel, 82 Mo. App. 168; Russell v. Railroad, 83 Mo. 507; Culsliall y. McGowan, 98 Mo. App. 705.

— Hon. John G. ParkJudge. (1) The court erred in refusing to sustain defendant’s demurrer to plaintiff’s petition. Cummings v. Railroad, 26 Mont. 434; Kennon v. Gilmer, 4 Mont. 451; Railroad y. Murphy, 46 Tex. 356; Stillwell’s Adm’r y. Land Co., 58 S. W. 696.

— Hon. Frank P. Walsh, Special Judge. (1) The court erred in refusing to give defendant’s peremptory instruction, asked at the close of plaintiff’s evidence and renewed at the close of all the evidence. Bond v. Railroad, 110 Mo. App. 138. (2) The court erred in giving each of the following instructions, to-wit: Instructions 1, 2, 3, 4 and 5, on behalf of the plaintiff. As to instruction one, Cramer v. Transit Co., 112 Mo. App. 363.

— Hon. William C. Ellison, Judge. (1') It has been universally beld that tbis, and similar provisions in statutes relating to tbe adoption of local option laws, are mandatory and tbe election must be beld witbin forty days after tbe receipt of tbe petition, by tbe county court, and if not so beld, tbe election is void. State ex reí. v. Ruark, 34 Mr. App. 325; State v. Webb, 49 Mo. App. 407; Ex parte Sublett, 23 Tex. Civ. App. 309, 4 S. W. 894; Curry v. State, 28 Tex.

— Hon. Thomas J. Seehorn, Judge. (1) The court erred in refusing to give the instruction in the nature of a demurrer interposed by the defendant at the conclusion of plaintiff’s evidence and renewed at the close of all the evidence, for the reason that under the pleadings and the evidence the plaintiff was not entitled to recover.

<p>Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.</p> <p>(1) Plaintiff was guilty of contributory negligence as a matter of law. Fletcher v. Railroad, 64 Mo. 484; Harlan v. Railroad, 65 Mo. 22; Zimmerman v. Railroad, 71 Mo. 476; Henze y. Railroad, 71 M'o. 686; Purl y. Railroad, 72 Mo. 168; Turner y. Railroad, 74 Mo. 602; Powell y. Railroad, 76 Mo. 80; Lenix y. Railroad, 76 Mo. 86; Hixson y. Railroad, 80 Mo. 885; Fox y. Railroad, 85 Mo. 679; Kelly v. Railroad, 88 Mo. 534; Butts v. Railroad, 98 Mo. 272; Dixon y. Railroad, 104 Mo. 491; Hayden y. Railroad, 124 M'o. 566; Kelsay y. Railroad, 129 Mo. 362; Lane y. Railroad, 132 Mo. 4; Huggart y. Railroad, 134 Mo. 673; Payne v. Railroad, 136 Mo. 562; Peterson v. Railroad, 156 Mo. 552; Hook y. Railroad, 162 Mo. 569; Van Bach v. Railroad, 171 Mo. 338; Guyer y. Railroad, 174 Mo; 344; Markowitz y. Railroad, 186 Mo. 350; Schmidt v. Railroad, 191 Mo. 215; Green y. Railroad, 192 Mo. 131; Walker y. Railroad, 193 Mo. 453; Sanguinette y. Railroad, 196 Mo. 466; Mockowik v. Railroad, 196 Mo. 550; Porter y. Railroad, 199 M'o. 82; Stotler y. Railroad, 103 S. W. 1; Duncan y. Railroad, 46 Mo. App. 198; Sims y. Railroad, 116 Mo. App. 572; Grout v. Railroad, 102 S. W. 1026; Hodgin y. Railroad, 143 N. C. 93, 55 S. E. 413; Tiffin y. Railroad, 93 S. W. 564; Lierman y. Railroad, 82 Wis. 286, 52 N. W. 91; 33 Am. St. Rep. 37; Railroad y. Keister, 163 Ind. 609, 67 N. E. 521; Barr y. Railroad, 105 Tenn. 544, 58 S. W. 849; McGrath y. Railroad,- 59 N. Y. 468; Smith y. Railroad, 141 Ind. 92; 40 N. E. 270; Golinyaux y. Railroad, 125 la. 652, 101 N. W. 465. (2) Instruction numbered 3P, given at the request of the plaintiff, is erroneous. Nixon y. Railroad, 141 Mo. 425; Reno y. Railroad, 180 Mo. 483; Green y. Railroad, 192 Mo. 131; Bragg y. Railroad, 192 Mo. 331; Mockowik v. Railroad, 196 Mo. 550; Stotler v. Railroad, 103 S. W. 1; Grout v. Railroad, 102 S. W. 1026.</p>

— Hon. William H. Martin, Judge. (1) The jury were instructed that appellant could not be held liable unless it knew or by the exercise of reasonable diligence should have known of the defect in the wires a sufficient length of time before the accident occurred to have repaired the same. This instruction was the law of the case, which the jury could not disregard. Peet v. Railroad (la.), 55 N. W. 508; Smith v. Pearson (Minn.), 46 N. W. 849; Railroad v. Hutchinson, 40 Kan. 51.

— Hon. Thomas J. Seehorn, Judge. (1) Defendant, the Missouri Pacific Railway Company, was not guilty of any negligence. (a) Defendant’s engineer approached the crossing in question in the usual and customary manner and with his engine under perfect control. Kleiber v. Railroad, 107 Mo. 240. (b) Negligence consists of failure to discharge a duty which one person owes to another. Henry v. Railroad, 76 l. c. 295.

— Hon. Henry L. McCune, Judge. (1) The evidence of plaintiff being- confusing-, the verdict of the jury against the great' mass of defendant’s evidence can be accounted for only upon the ground of passion and prejudice and for that reason should not be allowed to stand. Spohn v. Railroad, 87 Mo. 74; Hipsley v. Railroad, 88 Mo. 348; Garrett v. Greenwell, 92 Mo. 120; Whitsett v. Ransom, 79 Mo. 258; Hite v. Railroad, 130 Mo. 141..

— Hon. William H. Martin, Judge. (T) Tbe sale by Waller, trustee, transferred the legal title from Paxton and wife to defendant Mullett, whether the sale was regular or not. Schanewerk v. Hoberecht, 117 Mo. 28; Bldg. & Inv. Co. v. Dunsworth, 146 Mo. 370; Long v. Long, 141 Mo. 367; Hume v. Hopkins, 140 Mo. 73.

Circuit Court. — Hon. John G. Park, Judge. (1) This principle of law was settled in this country by the Supreme Court of the United States in 1839, which decided that it is the business “for which it is created” that a corporation cannot carry on, outside of the State whose laws gave it existence, without permission from the other State which it proposes to enter.

— Hon. William, Davidson, Judge. (1) The court erred in making an order affecting the rights of the town of Linn, and in entering judgment against it for costs. It was not before the court. The improvements on the lot in question could not he torn down without affecting the rights of the town of Linn. The court had no right to order the improvements torn down without having both of the defendants before the court. Baker v. McDaniel, 178, Mo. 1. c. 471.

— Hon. Thomas N. Reynolds, Special Judge. (1) The court erred in permitting the plaintiff to introduce in evidence over the objection of the defendants a copy of the chattel mortgage and in overruling the defendant’s motion to strike such evidence from the record. The mortgage had been released of record and satisfaction acknowledged as provided for by statute.

— Hon. Argus Cox, Judge. (1) There being no contract in writing with James D. Akins he could not recover. R. S. 1899, sec. 6759; Crutchfield v. Warrensburg, 30 Mo. App. 456; Woolfolk v. Randolph County, 83 Mo. 501. (2) The decree or finding is not supported by the evidence. (3) The judgment should have been for defendant. Iron Co. v. Lancaster, 15 Pa. Sup. Ot. 556, affirming 17 Lane. L. Rev. (Pa.) 161; Sanders v. Brown (Ala.), 30 So. 732.

— Hon. William C. Ellison, Judge. (1) The witness, Margaret Pettigrew, was incompetent to testify; she being the wife of Chas. Pettigrew, deceased; to any conversations had by her with Geo. W. Jackson, who was also deceased, relative to the alleged contract of purchase and sale of said land from Geo. W. Jackson, deceased, plaintiff’s father. R. S. 1899, sec. 1652; Smith v. Sedalia, 182 Mo. 10; Danker v. Goodwine Mfg. Co., 102 Mo.

— Hon. E. E. Porterfield, Judge. (1) The first and principal error of the court in the trial of this case was its refusal to give a peremptory instruction in favor of defendant. McGauley v. Transit Co., 179 Mo. 590; Noll v. Transit Co., 73 S. W. 907; Burén v. Transit Co., 104 M'o. App. 231; Lien v. Railroad, 79 Mo. App. 479; Petty y. Railroad, 179 Mo. 674; Reno v. Railroad, 180 Mo. 469; Fellenz v. Railroad, 106 Mo.

— Hon. George W. Wanamaker, Judge. (1) When a tenant moves from the demised premises, leaving them uncared for and unprotected and exposed to injury or waste, the landlord may re-enter for the purpose of preventing the threatened loss or impairment of the estate, whether the tenant consents or not. Churchill v. Lorimers, 60 Mo. App. 244; Buck v. Lewis, 46 Mo. App. 227; Jones v. Barnes, 45 Mo. App. 590; Hulin v. Roll, 43 Mo. App. 234; Duffy v. Day, 42 Mo.

— Hon. E. E. Yates, Special Judge. (1) The petition did not state a cause of action. Whatever damage or inconvenience suffered by plaintiff was borne by the public in general, according to the petition. The allegation therein contained that his damage was special to him was a conclusion. The facts alleged in detail show that “his cnstomers and the public in general” were put to the same inconvenience he was. This is fatal.

— Hon. William C. Ellison, Judge. (1) The policy in suit separately valued and separately insured the property covered by the three respective items, and they are, in fact, three distinct and independent contracts; neither bound by the terms of, or valuations in the other, hence plaintiff’s instruction requiring the jury to consider and value the three items as one, and apply depreciation, etc., if any, to the aggregate value of the three, was erroneous.

<p>1. ACCIDENT INSURANCE: Reinsurance: 'Proximate Cause: Two Accidents: Liability. The Union. Company in .June insured the decedent against death by accident occurring within ninety days after the injury. He was injured in July. In December the Maryland Company assumed the Union Company’s obligations. In February the decedent received another injury and died within the ninety days. Held, if the February injury was the proximate cause of the death then both companies are liable, but if the July injury was the proximate cause, then neither, since the death did not occur within the ninety days and the accident did not occur after the assumption of the liabilities by the Maryland Company.</p> <p>2. -: -: -: -: -. Where the assured has received two injuries at different times and would not have died but for the last injury, he may recover though that injury would not have proved fatal but for the first.</p> <p>3. EVIDENCE: Expert: Opinion: Conclusion. Expert witnesses should not usurp the functions of the jury; and there is a difference between the opinion that a certain result could reasonably follow from certain facts and the expert’s conclusion that such result actually did follow.</p>

— Hon. Louis Hoffman, Judge. (1) What witnesses said to street commissioner was hearsay — expression of an opinion. King v. Eailroad, 98 M'o. 235. This was a usurpation of the province of the jury. Schaefer v. Eailroad, 98 Mo. App. 432. (2) The court erred in proving city repaired street after the injury. Bailey v. Kansas City, 189 Mo. 503; Wojtylak v. Coal Co., 188 Mo. 286; State v. Todd, 194 Mo. 393.

— Hon. William C. Ellison, Judge. (1) A riparian owner may divert the water flowing through his land, provided he returns it to the original channel when it leaves his land; 28 Am. and Ehg. Ency. Law (1 Ed.), 978, 982'; 3 Kent (12 Ed.), 439; Norton v. Volentine, 39 Am. Dec. 223; 20 Am. and Eng. Ency. Law (2 Ed.), 362. (2) This ditch drain empties into the old bed of Tarkio creek, a natural watercourse, and the drainage for agricultural purposes.

— Hon. Samuel C. Davis, Special Judge. (1) The complaint filed by the city attorney with the mayor and council nowhere stated any facts that would render the relator Knox, subject to impeachment under section 5761, Revised Statutes 1899. R. S. 1899, secs. 5791, 5793, 5795, 5802. And the only jurisdiction that the mayor and council had hy virtue of the complaint filed by the learned city attorney was to dismiss the said complaint and proceed no further.

— Hon. William H. Martin, Judge.' (1) Instruction numbered two is palpably erroneous. The instruction is further erroneous and more glaringly so, because it advised the jury that a railing or other guard on the crossing was necessary. (2) Instruction numbered one, is likewise susceptible to just criticism. It begins by saying that certain facts are uncontradicted.

— Hon. Chesley A. Mosman, Judge. (1) The court’s refusal to give instruction V, for plaintiff, was not error and did not entitle plaintiff to ,a new trial for the reasons, (a) that the part in italics assumes that the girder was an obstruction ; (b), that there was no evidence to call for such an instruction, as plaintiff knew of the location of the girder of which she complains; (c), that it was not such error as would be prejudicial to plaintiff.

Original Proceedings by Mandamus. (1) The authority of the relator, as such justice of the peace, to tax the costs of such proceedings against Linn county, is found in section 2778, Revised Statutes 1899. (2) The statute relating to costs should he strictly construed. Unless the prosecuting witness, J. H. Cassity, was liable under the statute, the court would have no authority to tax the cost against him.

Berry G. Thurman, Judge. (1) The mortgage was an instrument purporting to be under seal, and had a scrawl attached. This made the same a sealed instrument. R, S. 1879, See. 662. Sealed instruments import consideration. Montgomery Co. v. Auchley, 92 Mo. 129. (2) No proof'of consideration is necessary, when plaintiff’s cause of action is founded on an instrument importing consideration. Montgomery Co. v. Auchley, 103 Mo. 499; Homes y. Farris, 97 Mo.

<p>Appeal from Jackson Circuit Court. — Hon. James N. Blover, Judge.</p> <p>(1) The defendant’s instructions 6, 7, 8, and 9, are correct. Wolf y. Rosenberg, 67 Mo. App. 403; Crowley v. Summerville, 70 Mo. App. 376; Hey don y. Grillo, 26 Mo. App. 289; Heydon y. Grillo, 35 Mo. App. 650; Ramsey v. West, 31 Mo. App. 676; Stinde y. Scharf, 36 Mr. App. 15; McGuire v. Carlson, 61 111. App. 395; Blodgett v. Sioux, 63 la. 606; Mears y. Stone, 44 111. App. 444; Francis y. Eddy, 49 Minn. 447; Blackwell v. Adams, 28 Mo. App. 61; Zeidler v. ’Walker, 41 Mo. App. 121; Harkness y. Briscoe, 47 Mo. App. 196; Campbell y. Yan Stone, 73 Mo. App. 84; Whitcomb v. Bacon, 170 Mass. 479; Sibald v. Bethlehem, 83 N. Y. 378; Ward y. Fletcher, 124 Mass. 224; Glasscock y. Yan Fleet, 100 Tenn. 603; Seivers v. Griffin, 14 111. App. 63; Tinges v. Moale, 25 Md. 480; Harwood v. Triplett, 34 Mo. App. 237; Carlson v. Nathan, 43 111. App. 364; Livezy v. Miller, 61 Md. 336; Crowinshield v. Foster, 169 Mass. 237; Freedman y. Havenejer, 37 N. Y. App. Div. 518; Feldman y. O’Brien, 23 Misc. (N. Y.) 341; Cathcart v. Bacon, 47 Minn. 34; Getzler v. Boehm, 16 Misc. (N. Y.) 390; Mittingly v. Pennie, 105 Cal. 514; Flynn v. Jordal, 124 la. 459; Higgins v. Herme, 74 Mo. App. 86; Lawrence v. Weir, 3 Colo. App. 401; Baars y. Hyland, 65 Minn. 150; Walton v. M'cMarrow, 175 N. Y. 493; Glenn v. Davidson, 37 Md. 365; Stewart v. Woodard, 7 Kan. App. 633; Scott v. Loyd, 19 Colo. 401; Bowser v. Mick, 29 Ind. App. 49; Stauffer v. Bell, 99 la. 545; Stinde v. Blesch, 42 Mo. App. 587; Higgins v. Miller, 109 Ky. 209; Goin y. Hess, 102 la. 140. (2) The instructions in question are not objectionable on account of ignoring the principle of procuring cause, because taken with the other instructions and construing them as a whole, that issue was fully and fairly presented to the jury. Blake y. Stump, 78 Md. 160; French y. McKay, 181 Mass. 485; Walton y. Cheesebrough, 167 N. Y. 606; Bickart y. Hoffmann, 19 N. Y. Supp. 472; Dougherty v. Railroad, 97 Mo. 647; Gordon y. Burris, 158 Mo. 228; M'uelhausem y. Railroad, 91 Mo. 382; Fisher v. Heizberg Co., 77 Mo. App. 108; Swann y. Leellman, 12 Mo. App. 583; Owens y. Railroad, 95 Mo. 169; Deweese y. Iron Co., 54 Mo. App. 476; Bank v. Hatch, 98 Mo. 376; Holliday Klotz L. & L. Co. v. Tie Co., 87 Mo. App. 167; Perrett y. Kansas City, 162 Mo. 238. (3) The verdict is for the right party and should not have been disturbed by the trial court. State ex rel. v. Benedict, 51 Mo. App. 642; Randle v. Railroad, 65 Mo. 325; Daniel v. Atkins, 66 Mo. App. 342; Muldrow v. Railroad, 62 Mo. App. 431; Fidelity & Dep. Co. v. Coldin, 83 Mo. App. 204; Bowman y. Lickey, 86 Mo. App. 47; Wagner v. Edison El. & 111. Co., 82 Mo. App. 287.</p> <p>(1) Instructions numbered 6, 7, 8, and 9, given to the jury on the part of the defendant, were each erroneous in that they eliminated from the consideration of the jury the question as to whether or not plaintiffs were the procuring cause of Braley’s purchasing the property from the defendant. (2) Each of these instructions contain vital error. They are not the law. Crone y. Trust Co., 85 Mo. App. 601; Tyler y. Parr, 52 Mo. 250; Wright v. Brown, 68 Mo. App. 577; Goffe v. Gibson, 18 Mo. App. 4; Stinde v. Blesch, 42 Mo. App. 578; Grether v. McCormick, 79 Mo. App. 325; Cunliff y. Hansman, 97 Mo. App. 467; Brennan y. Roach, 47 Mo. App. 290; Hogan y. Slade, 98 Mo. App.’ 50; Sallee y. McMurray, 113 Mo.. App. 253; Glade v. Mining Co., 107 S. W. 1002.</p>

— Hon. Howard Gray, Judge. (1) Where the terms of an insurance policy will bear two interpretations, that one will be adopted which sustains the claim for indemnity. Insurance Co. y. Hoffman, 31 111. App. 295, affirmed 132 111. 522, 24 N. E. 413; Goodwin v. Assur. Soc., 97 Iowa 226, 32 L. R. A. 473; Phoenix Insurance Co. v. Barnd., 16 Neb. 80, 20 N. W. 105; Western & Atlantic Pipe Lines y. Insurance Co., 145 Pa. 346, 27 Am.

— Hon. Howard Gray, Judge. (1) The court should have sustained defendant’s demurrer to the evidence, because there was no evidence that the contract set out in the petition was ever made by plaintiff and defendant, as the evidence clearly shows that plaintiff merely ordered the car for June 6th. Gann v. Bailway, 65 Mo. App. 670; Cangas v. Bumsey M’fg. Co., 37 Mo.

— Hon. E. E. Porterfield, Judge. (1) The decision of this court in Abies v. Ackley, 103 S. W. 974, was res adjudicaba. The evidence, pleadings and issues were the same. Hinzman v. Railroad, 199 Mo. 56; Winter v. Lodge, 101 Mr. App. 550; State ex rel. v. O’Neal, 170 Mo. 7; K. O. Ex. Park v. K. C., .174 Mo. 425; Garretson v. Insurance Co., 60 N. W. 541.

<p>Appeal from Boone Circuit Court. — Hon. Samuel C. Davis, Special Judge.</p>

— Hon. E. E. Porterfield, Judge. (1) The court erred in refusing to give appellant’s sixth declaration of law. This sale was brought about and procured within the meaning of our decisions by appellant and he is entitled to his commission. Goffe v. Gibson, 18 M’o. App. 4; Brennan v. Roach, 47 Mo. App. 290; Millan v. Porter, 31 Mo. App. 563; Tyler v. Parr, 52 Mo. 251; Corder v. O'Neill, 176 Mo.

<p>Appeal from Buchanan Circuit Court. — Hon. Chesley A. Mosman, Judge.</p> <p>(1) The court erred in refusing to instruct the jury to find for the defendant. Hornstein y. Railroad, 195 Mo. 450; Kelsay y. Railroad, 129 Mo. 362; Green y. Railroad, 192 Mo. 131; Stotler y. Railroad, 204 Mo. 619; Boring y. Railroad, 194 Mo. 541; Schmidt y. Railroad, 391 Mo. 215; Giardina y. Railroad, 185 Mo. 330. (2) She should haye looked again before stepping upon the track, when she would have had an unobstructed yiew of the train, and her failure to do so was contributory negligence. Kelsay y. Railroad, 129 Mo. 375; Schmidt v. Railroad, 191 Mo. 234; Giardina y. Railroad, 185 Mo. 335.</p> <p>(1) The court properly submitted to the jury the question of whether or not plaintiff was in the exercise of ordinary care in watching where she stepped in going across defendant’s track after she had stopped at a point within three or four feet of the track before going upon it and looked for the approach of trains and finding that her vision was obstructed, listened for the approach of trains. (2) The court properly refused instructions numbered two, three and four, asked by the defendant, for the reason that they required plaintiff as a matter of law to look for the approach of trains instead of watching where she stepped while she was upon the track. The question of Avhat was proper conduct under such circumstances was a question for the jury.</p>

Henry L. McCune, Judge. (1) The admission of the reports of December 31, 1900, and December 31, 1901, as evidence, was error: (a) Because the law does not require that the funds belonging to the different forms of policies, should be separately stated, and the plaintiff failed to show that the funds referred to in said reports, pertained only to the single form of policy or contract of insurance in controversy. Reynolds v. Insurance Co., 88 Mo. App. 679.

Jackson Circuit Court. — Hon. John G. Park, Judge. (1) The objection to the introduction of any evidence under the petition ought to have been sustained. The petition was not a good pleading. McHugh v. Transit Co., 190 Mo. 85; Clancy v. Transit Co., 91 S. W. 509; Kendrick v. Railroad, 81 Mo. 521; 1 Ency. Pleading & Practice, 569; Hansberger v. Railroad, 43 Mo. 199; Gregory v. Railroad, 20 M'o. App. 448; Holliday v. Jackson, 21 Mo. App. 666; Mo.

— Now. John G. Park, Judge. (1) The answer tendered a sufficient equitable defense to tbe second, third and fourth counts, of the petition. Leitensdorfer v. Delphy, 15 Mo. 161. (2) One who prepares a contract pursuant to a previous agreement, and delivers a contract materially varying from the one contemplated, cannot impute negligence to the other party, if the latter, reposing confidence, fails to discover the variance. Wells v. Adams, 88 Mo. App. 216.

— Hon. Nat. M. Shelton, Judge. Respondent’s motion to affirm should be sustained, (a) There is no way of distinguishing what is matter of exceptions from what is record proper in appellant’s brief and abstract. The brief and abstract of appellant in this case leave the appellate court wholly in the dark as to this necessary distinction. Stark Bros. v. Martin, 126 Mo. App. 575; Thompson v. Ruddick, 213 Mo. 561, 111 S’. W. 1131.

— Hon. Hermann Brumback, Judge. (1) Where the testimony is such that it falsifies well known laws of nature, the court should give a peremptory instruction. Weltmer v. Bishop, 171 Mo. 110. (2) The damages were excessive. Doherty v. Kansas City, 105 Mo. App. 173; Stoetzele v. Swearingen, 90 Mo. App. 588; Haynes v. Trenton, 108 Mo. 123. (3) In connection with the claim of excessive damages the instruction given by the court on the question of damages was erroneous.

— Hon. William H. Martin, Judge. (1) Tlie petition does not state facts sufficient to constitute a cause of action under section 1105, Revised Statutes 1899, upon which it is based. 8 Am. and Eng. Ency. Law (2 Ed.), p. 428; Mangold v. Railroad, 116 Mo. App. 606; McNear v. Railroad, 42 Mo. App. 18; Barnett v. Railroad, 68 Mo. 62. (1) The petition in this cause states a good cause of action, under the repeated decisions of the appellate courts of this State.

— Hon. John G. Park, Judge. (1) Under an ordinance to grade one-half of a street longitudinally, the cost of the work should be assessed only against the property fronting on such longitudinal half. Wakefield v. Mander, 5 C. P. Div. 248; Central Covington y. Busse (Ky.), 80 S. W. 210; McDonald v. Coniff, 99 Cal. 386, 34 Pac. 71; Perine v. Erzgraber, 102 Cal. 234, 36 Pac. 585; Philadelphia v. Eastwick, 35 Pa. St. 75; Holt y. Somerville, 124 Mass. 408.

<p>1. REVISED STATUTES 1899: When Effective: From and After. The Revised Statutes of Missouri 1899, became effective on the first day of November, 1899, the phrase “from and after” having been so interpreted by the Supreme Court.</p> <p>2. LIFE INSURANCE: Missouri Contract: Statute. Where an insurance company- does business in this State and issues its policies to the residents thereof the validity of the clauses of such policies must be treated by the laws of this State which become a part thereof as much as if copied therein; and a policy issued on the first day of November, 1899, is governed by the Revised Statutes of that year.</p> <p>3. -: -: -: Default: Extension. Under section 7898, Revised Statutes 1899, default after the payment of three premiums does not forfeit the policy and three-fourths of its net value is to he treated as a premium for the purchase of extended insurance; and section 7900 does not except the policy in suit from the operation of the former section, notwithstanding its stipulations.</p> <p>4. -: -; -: Automatic Paid-Up Insurance. The stipulation of a policy relating to automatic paid-up insurance and loans are construed together, and it is held that the former stipulation is not unconditional so as to come within the exceptions of the statute providing for the unconditional commutation of the policy from nonforfeitable paid-up insurance.</p>

— Hon. John G. Park, Judge. (1) As no declarations of law were asked or given, and the court was not requested by either party to make special findings of fact and conclusion of law, there is nothing .before this court for review except the question whether there is any evidence to support the judgment. R. S. 1899, sec. 695; Rausch v. Michel, 192 Mo. 303; Railroad v. Holschlag, 144 Mo. 257; Nichols v. Carter, 49 Mo. App. 401; Paint & Color Co. v. Shooting the Chutes, 74 Mo.

— Hon. Alonzo D. Burnes, Judge. ' (1) A life estate is a net use and income not including a diminution of the capital by diversion of it to the payment of any part of the ordinary expenses of its preservation. Pierce v. Burroughs, 58 N. H. 305; 1 Words and Phrases, p. 4154.

— Hon. Chesley A. Mosman, Judge. (1) The law is well settled in this State and in New York that a common carrier cannot limit its common law liability, for its negligence, in whole or in part, by contract, unless fairly entered into, made in clear terms, about which there can be no misunderstanding, and for a sufficient consideration. Conover v. Express Co., 40 Mo. App. 31; Powder M’fg. Co. v. Railroad, 101 Mo. App. 453; Myers v. Railroad, 120 Mo.

— Hon. Nat. M. Shelton, .Judge. (1) Plaintiff’s amended petition stated a good cause of action, and the court erred in excluding the evidence offered by plaintiff tending to prove the allegations of said petition. Laws 1901, sec. 9696n. (2) The court erred in holding that the fact plaintiff had no certificate of exemption at the time Scott brought suit before the justice was fatal to plaintiff’s case.

— No». William O. Ellison, Judge. Read plaintiff’s petition as you may, you are unable to find any statement therein that the plaintiff had any interest in the property sued for, by ownership or otherwise, and this is an indispensable allegation in actions of replevin. Dillard v. McClure, 64 Mo. App. 491; Benedict and Burnham Mfg. Co. v. Jones, 60 Mo. App. 220; Harmon v. Iden, 88 Mo. App. 315; McCabe v. Black River Transí.

— Hon. Alonzo D. Burnes, Judge. (1) The petition does not state a cause of action. R. S. 1899, sec. 5222, as amended by the laws of 1905; Griffith y. Railroad, 114 Mo. App. 591; Rawson y. Railroad, 107 S. W. 1101. (2) The plaintiff cannot recover either upon an oral contract of transportation or upon the written bill of lading introduced by him in evidence.

<p>1. NEGLIGENCE: Contributory Negligence: Pleading: Defense: Instruction. A plea of contributory negligence is a specie of confession and avoidance and must be affirmatively pleaded and proven; and a modification of defendant’s instruction on the burden of proof that accepts the defense of plaintiff’s negligence throws the burden of proving contributory negligence on the defendant.</p> <p>2. -: —--: -: Answer. An answer was a general denial and a further averment "that if plaintiff received any injuries . . . same was caused by plaintiff’s own fault and negligence.” Held, the answer simply averred that plaintiff was the sole cause of her injury and was not the equivalent of an allegation that her negligence contributed with the defendant’s to the production of the injury and therefore there was no contributory negligence pleaded.</p> <p>3. -: -: -: Instruction: Invited Error. Where the defendant by his instruction invites an error he may not complain that the court of its own motion instructed to the same effect.</p>

— Hon. J. B. Johnson, Judge. (1) Before there could be any liability under the bond it was necessary for the employer to introduce such proof as would convict the employee of the crime of embezzlement or larceny. Embezzlement and larceny are both terms of the criminal law and in no respect are they terms of contract law; their meaning therefore, is to be found in the criminal code. Reed v. Fidelity & Casualty Co., 189 Pa. St. 596; Guarantee Co. v. Bank, 100 Fed. 559; Mfg.

— Hon. John G. Park, Judge. (1) Where there is some evidence that the relation of independent- contractor does not exist between the owner and employee, or where the alleged contract of employment is oral, then the question of whether or not such independent contractor relationship exists is one for the jury. Gayle v. Car & Foundry Co., 177 Mo. 447; 16 Am. & Eng. Enc. of Law, p. 191.

— Hon. Alexander H. Waller, Judge. (1) It was necessary for the wife to defend the action for divorce begun by her husband, that she might, thereby, defend her character and good name, also, protect her rights in the property that had been accumulated since her marriage to her said husband, as the result of their joint efforts, which property was all in the name of her husband. R. S. 1899, sec. 2929.

— Eon. James E. Slover, Judge. (1) The court erred in not giving the peremptory instruction requested by the defendant. Mo. Ann. Stat. 1906, sec. 1993; Rothwell y. Gibson, 121 Mo. App. 279.