Volume 135 — Missouri Appeal Reports

— Eon. Francis H. Trimble, Judge. (1) The burden of proof in the trial of this case was upon respondent, interpleader; and Ms recovery, if at all, must be upon the strength of his own title. Brownwell & Wright C. Co. v: Barnard, 139 Mo. 142; Young y. Glasscock, 79 Mo. 575; Paper Co. y. Crow-ther, 92 Mo. App. 273; Giett y. McGannon, 74 Mo. App. 209; Brownwell & Wright C. Co. y. Barnard, 139 Mo. 144; Spooner y. Ross, 24 Mo.

— Hon. Henry M. Ramey, Judge. (1) As defendant in his answer and evidence admitted conversion and nonpayment, plaintiff’s instruction 1 was equivalent to a peremptory charge. It is no answer to this to say that the defendant might have asked instructions. He was not bound to do so. Griffith v. Conway, 45 Mo. App. 574; Sullivan v. Railroad, 88 Mo. 169; Mailman v. Harris, 65 Mo. App. 128; Cultivator Co. v. Railway, 64 Mo. App. 805; Fitzgerald v. Hayward, 50 Mo. 524.

— Hon. E. W. Hinton, Special Judge. (1) When there are no declarations of law given by the court, the appellate court will presume that the trial court took a correct view of the law, if there was substantial evidence to support a verdict on that theory. The theory of the trial court in this cause could only have been that appellant by “laches” had forfeited its rights. We contend that there is not a scintilla of evidence to justify the court in so holding.

— Now. Chesley A. Mosmcm, Judge. (1) If an agent have direct authority to bind his principal in a particular transaction, this direct authority will carry with it by implication all powers that are suitably and reasonably necessary to accomplish the intended purpose, though no incidental powers are mentioned between the principal and the agent.

— Hon. George W. Wanamalcer, Judge. (1) Even should it be held that the evidence as to the destruction of the grass roots is competent, then the court erred in giving plaintiffs’ instructions, two, three, four and five for the reason the destruction of the grass roots was an injury to the inheritance, and the measure of damage is the difference between the market value of the real estate just before and just after the injury, in the condition it was in at the time.

— No». Hugh Dabbs) Judge. There has been no legal bill of exceptions filed in this case. This being the situation there is nothing for this court to consider except the record proper. Do-herty y. Robb, 154 Mo. 365; Powell v. Sherwood, 162 Mo. 605; State v. Apperson, 115 Mo. 470; State y. Scott, 113 Mo. 559; Dorman y. Coon, 119 Mo. 68; State y. Britt, 117 Mo. 584; State y. Mosley, 116 Mo. 545; State, y. Seaton, 106 Mo. 198.

— Hon. Hide M. Bradley, Judge. (1) The lower court on the undisputed facts, could have consistently directed a verdict for plaintiff. Crawford v. Stayton, — Mo. App. —, TIO S. W. 665; Purdy et al. v. Wilson, •— Mo. App. —, 108 S. W. '1124; Bank y. Hainliue, 67 Mo. App. 48B; May v. Crawford, 150 Mo. 527; Commissioners v. Clark, 94 U. S. 284, 24 L. Ed. 59. (2) The Statute of Frauds is not involved in this case. Crawford v. Stayton, — Mo.

— No». Francis H. Trimble, Judge. (1) The court erred in finding against appellants on their claim for commission in the sum of $170 for securing for respondent the $8,500 loan, to pay off the loan held at Shelbina. (2) The court erred in finding against appellants on their claim for commission in the sum of $150, in securing the loan for $7,500 for respondent under agreement with respondent therefor.

— Non. Ghesley A. Mosman, Judge. (1)1 Appellant’s motion ;in arrest should have been sustained. Appellant saved every exception to the errors complained of in the motion in arrest by oral demurrer to the admission of testimony and by the demurrer to the evidence at the close of respondent’s case and at the close of the ivhole case. The petition fails to state a cause of action. R. S. 1899, sec. 4573; Wilson v. Burton, 96 Mo. App. 686; Frederick v. Bruckner, 124 Mo.

Court. — Now. Louis Hoffman, Judge. (1) Where plaintiff seeks, as her equitable relief, by an abatement of the alleged nuisance and also damages therefor in the same action, damages may be awarded down to the time of the trial, but not such as may occur thereafter. Pinney y. Berry, 61 Mo. 359; Frick y. Kansas City, 117 Mo. App. 488; lye v. McM'unegal, 66 Mo. App. 437’; Frudenstein y. Heime, 6 Mo. App. 287; Foncannon v. Kirksyille, 88 Mo. App. 279; Scott v. Nevada, 56 Mo.

— No». Walter F. Poiuell, Judge. (1) The statute (sec. 2929, R. S. 1899) provides that “the guilty party shall forfeit all rights and claims under and by virtue of the marriage.” R. S. 1899, sec. 2947. (2) But the court was without jurisdiction to render judgment for alimony “as alimony” for the support of the defendant, she being guilty. Doyle v. Doyle, 26 Mo. 545; De Graw v. De Graw, 7 Mo. App. 121; Mc-Intire v. Mclntire, 80 Mo. 470; Slaughter v. Slaughter, 106 Mo.

— Now. Nick M. Bradley, Judge. (1) Prima facie, the consignee is the person entitled to demand and receive the goods of the carrier at the place of destination, and to sue for any breach of the carrier’s contract.

- — Hon. Niele M. Bradley, Judge. The petition stated no facts constituting a cause of action and objection to any evidence should have been sustained. (1) There was no allegation of fraud or mistake of fact in making assignment by defendant trustees declared on. Insurance Co. v. Landis, 50 Mo. App. 116; Gilmore v. Cook, 88 Mo. 25; Tiedeman, Real Property, sec. 781; Armstrong v. Winfrey, 61 M'o. 354; German v. Gilbert, 83 Mo. App. 411; Chenoweth v. Express Co., 93 M®.

— No». Nick M. Bradley, Judge. (1) • In this case, plaintiff’s debt and Ms right to recover tbereon, prima facie, are conceded. (2) Defendant’s amended answer confirms the sale and rests his defense npon a breach of an express warranty, and is presented and pleaded in one count, and the relief sought is in one prayer and from one wrong.

— Hon. William H. Martin, Judge. (1) Appellant bank, being a creditor of Catherine Kuehner, could assert in garnishment proceedings the invalidity of the transfer of the note to respondent. Epstein v. Clothing Co., 67 Mo. App. 221; Strauss v. Ayers, 34 Mo. App. 248. (a) This is true even if the note has been collected. Grocer Co. v. Clark, 79 Mo. App. 401'. (2) The assignment of the note by Mrs. Catherine Kuehner to respondent Yollrath was without any consideration whatever.

— Hon.' James H. 8 lover, Judge. (1) The court erred in rendering judgment against the garnishees or either of them, because there was no evidence whatever that either garnishee was indebted to the defendant, Mignona, at the time of the service of the garnishment npon either garnishee or at any time thereafter np to and until the filing of answers to the interrogatories. R. S. 1899, sec. 3436.

<p>Appeal from Jackson Circuit Court. — Hon. Thomas J. Beehorn, Judge.</p> <p>(1) Contract to pay in advance is good in absence of fraud. Eeinhart v. Empire, 83 Mo. App. 24; Spengler v. Kaufman, 48 Mo. App. 15; Spengler v. Kaufman, 46 Mo. App. 561. (2) Burden of proof is on creditor. He has the onus. Smith v. Heidecker, 39 Mo. 157; Holt v. Eailroad, 50 Mo. 151; Brucker v. Hib-ler, 49 Mo. App. 544; Hax v. Acme, 82 Mo. App. 477; Dunkins v. Crundin, 91 Mo. App. 213; Maagers v. Williams, 92 Mo. App. 680; Lomax v. Electric, 119 Mo. App. 192. (3) Evidence as to fraud must exist. Surmise and conjecture will not do. Honesty is presumed. N. E. Loan v. Browne, 177 Mo. 412; Bank v. Washington, 145 Mo. 91; Hoeller v. Haffner, 155 Mo. 589. (4) The judgment is responsive. K. S. 1899, secs. 3451, 3456.</p> <p>(1) Sliglit circumstances are sufficient to show fraud. Massey v. Young, 73 Mo. 260; Reinhart v. Soap Co., 33 Mo. App. 24; Spengler y. Kaufman, 46 Mo. App. 644. (2) Payment of wages in advance to an employe who Avishes to thereby defeat a creditor involves the same principle as in a fraudulent sale. A voluntary conveyance' is void as against existing creditors regardless of intent. Strauss v. Ayers, 34 Mo. App. 248; 14 Am. &'Eng. Enc. of LaAV (2 ed.) 289. (3) Scholz intended to avoid the payment of his wife’s judgment for alimony and his purpose was known to garnishee. A payment under such circumstances is void as against the creditor. Spengler v. Kaufman, 43 Mo. App. 5; Spengler v. Kaufman, 46 Mo. App. 644; Eunkins v. Crunden, 91 Mo. App. 209; Jarboe v. Jarboe, 106 Mo. App. 459. (4) ' The judgment is not responsive to the issues raised by the pleadings and therefore erroneous. Schneider v. Patton, 175 Mo. 684; Ross v. Ross, 81 Mo. 84; NeAvham v. Kenton, 79 Mo. 382.</p>

— Eon. James E. Goodrich, Judge. (1) Under tbe undisputed evidence tbe defendant was not guilty of conversion and tbe court erred in _ refusing to direct a verdict for defendant. Sbewalter v. Railway, 84 Mo. App. 589; Bank v. Brussoig, 107 Mo. App. 401; Fruit Co. v. Railway, 115 Mb. App. 352; Redmond v. Railway, 90 Mo. App. 68; Russell Grain Co. v. Railway, Í14 Mo. App. 488; Freeman v. Railway, 118 Mo. App. 526; Shewalter y. Railway, 84 Mo.

- — Eon. John P. Butler, Judge. (1) The statute under which defendant is proceeded against • is highly penal and must be strictly construed against and liberally construed in favor of the defendant. 2 Lewis’ Sutherland on Statutory Construction (2 Ed.), secs. 837, 520-527; Dwarris on Statutes (1 Ed.), pp. 736, 743; State v. Railroad, 19 Mo.

<p>Appeal from Jackson Circuit Court. — Hon. James E. Goodrich, Judge.</p> <p>(1) The assessment of the amount of the recovery cannot , be done by the court. Cates v. Nickell, 42 Mo. 169; Burghart v. Brown, 60 Mo. 24; Dyer v. Combs, 65 Mo. App. 152; Corbitt v. Mooney, 84 Mo. App. 647; Calkins v. Bank, 99 Mo. App. 513; Dawson v. Wombles, 111' Mo. App. 539; Kroge v. Modern Brotherhood, 126 Mo. App. 706. (2) The court erred in giving the eighth instruction for the plaintiff.</p> <p>(1) On the admission by defendant the amount of judgment was wholly a legal conclusion and it was the duty of the court to fix it. Compton v. Johnson, 19 Mo. App. 88; Clemens v. Knox, 31 Mb. App. 185. (2) All objections to the verdict, being a part of the record proper, are waived and cannot be reviewed where no motion in arrest of judgment was filed. Henderson v. Davis, 74 Mo. App. 1; Saddlery Co. v. Bullock, 86 Mo. App. 89; Warren v. Nickles, 72 Mo. App. 482; Grier v. Strother,- Ill Mo. App. 386; Baird v. Baird (Mo.), 113 S. W. 216; Feary v. O’Neill, 149 Mo. 467; Copeland v. Railroad, 175 Mo. 650; Chambers v. Chester, 172 Mo. 461; Norton v. Kramer, 180 M’o. 536; McKinstry y. Transit Co., 108 Mo. App. 12; Hines v. Kansas City, 120 Mo. App. 190.</p>

— Hon. E. E. Porter-field, Judge. (1) The court erred in refusing to give to the jury plaintiff’s instruction numbered 4. It was error on the part of the court to refuse to instruct the jury that plaintiff was entitled to her rent in this action, unless defendants could show a release, supported by a valid consideration. A release unless supported by a valuable consideration is a mere nudum pactum. Ha-zeltine v. Ausherman, 87 Mo. 410; Evers and Hunt v. Shumaker, 57 Mo.

— Hon. George W. Wcmamalcer, Judge. (1) The trial court erred in refusing appellant’s peremptory instructions and in trying the replevin suit or the right of possession of the property in this suit on the replevin bond. The fact that appellant failed to have his damages assessed or judgment for the return of property, as provided by the statutes, did not deprive him of his right of action. Berghoff v. Heckwolf, 26 Mo. 511.

— Hon. E. E. Porterfield, Judge. (1) The demurrer to the evidence was properly sustained for the reason that the plaintiff utterly failed to prove any joint liability on the'part of the defendant. Hutchinson on Carriers (3 Ed.), secs. 231, 249, 264, 309; 15 Encyc. PI. and Pr., 547; Heikamp v. La M'otte, 59 Mo. App. 249; Meyer v. Raihvay, 120 Mo. App. 288; Steamboat Lynx v. King, 12 Mo. 272; Davis v. Railroad, 89 Mo. 340; Gillespie v. Railroad, 6 Mo.

Jackson. Circuit Court. — Hon. Thomas J. Seehorn, Judge. (1) In Wilson y. Railroad, 58 Mo. App. 342, the clerk of the court allowed and taxed as costs mileage in fayor of certain witnesses who had in writing accepted service of the subpoenas. Subpoenas were regularly issued and the witnesses attended the trial. Cemetery Assn. v. Dalton, 53 Mo. App. 345; McHoney v. Kerwin, 56 Mo. App. 462; State ex rel. v. Seibert, 130 Mo. '222.

— No». Nick, M. Bradley, Judge. (!) Many of the authorities heretofore cited, sustain the right of appellants to appeal from the judgment of the county court, in cases of this character. We call special attention to the statutes of this State in respect to appeals. Section 1674, Mo. Ann. St. 1899, p. 1217; sec. 1788, Mo. Ann. St. 1899, p. 1248; sec. 4059, Mo. Ann. St. 1899, p. 2207; sec. 4060, Mo. Ann. St. 1899, p. 2208; sec. 4061, 2 Mo. Ann.

— Hon. Henry M. Barney, Judge. (1) The court by its finding and judgment found that the proceeds of the settlement were represented by an amount found by adding to the amount paid in settlement of each case, the amount due- to the attorney as shown by his contract.

— Eon. William P. Borland, Special Judge. (1) Plaintiff was, in law, guilty of contributory negligence, in not leaving bis buggy at tbe time bis three children did, or in not turning and driving-north} and in .driving in front of defendant’s team. Diamond v. Kansas City, 120 Mo. App. 188; Zumault v. Railway, 175 Mo. 288; Moore v. Railway, 176 Mo. 528; Wolf skill v.-Railway, 8 Am. Neg. (1 Cal. case).

Original Proceeding by Prohibition. (1) Even where the circuit court has jurisdiction of the general subject-matter, yet if it attempts to exceed its jurisdiction, prohibition will lie in this court to restrain such attempt.

— Eon. Louis Hoffman Judge. (1) Tbe judgment of tbe circuit court should be affirmed for the reason that there have been no errors assigned in appellant’s brief, the appellant thereby failing to comply with rule seventeen of this court. Rule seventeen of the Kansas City Court of Appeals; .Corrigan v. Kansas City, 93 Mo. App. 173; Isaac v. Lumber Co., 47 Mo. App. 30; Clark v. Hill, 69 Mo. App. 541; Bauer v. School District, 78 Mo. App. 442.

Appeal irom Polk Circuit Court. — No». Argus Cox, Judge. (1) Plaintiff, being the original owner of the vault doors, and having skipped them to its own order, with instructions to deliver on original bill of lading only, never parted with its title. Until the draft was paid and the bill of lading surrendered, plaintiff remained the owner.

Original Proceedings by Certiorari. (1) The application in this case was not filed at the time of presenting of the petition, and there is no filing mark upon it to show when it was filed. It does not comply with the law, as amended at the 1907 session of the General Assembly, for the following reasons: First, that it does not state who is or who is to be the owner or owners of the said dramshop.

— Hon. Hugh Dabbs, Judge. The amended petition states a good cause of action in equity for the following reasons: First. Because appellant has no adequate remedy at law and is therefore entitled to maintain injunction.

— No». Charles A. Denton, Judge. (1) The court alone can render a judgment and the clerk’s entry was a nullity, and should have,been stricken from the records upon defendant’s motion. Pump Co. v. Jones, 126 Mo. App. 536; R. S. 1899, sec. 4476. (1) The judgment as entered was the judgment of the court, and hot the mere act of the clerk, as appellants contend. R. S. 1899, sec. 1586; Rohm Bros. & Co. v. Stivers, 75 M'o. App. 296. (2) A court of record speaks by its record.

' — Hon. William, O. Ellison, Judge. The court erred in finding by its judgment that the defendants were indebted to the plaintiff on account of the breach of the conditions of the attachment bond and that the plaintiff was indebted to the defendants on account of a judgment previously obtained and in not offsetting the one against the other and in allowing plaintiff as his exemptions $300 out of the amount found ,to be due him from the defendants.

— No». Charles A. Denton, Judge. (1) Where there is no sheriff or other ministerial officer qualified to act, or where they are interested or prejudiced, the court may appoint one or more persons to execute the process and perform any other duty of such officer. R. S. 1899, section 1599; Orscheln y. Scott, 79 Mo. App. 534; State y. Leabo, 89 Mo. 247; State v. Hultz, 106 Mo. 41, and authorities cited on page 48.

— Hon. Argus Cox, Judge. (1) The legal effect of the adoption of the local option law is to suspend, the dramshop law in the locality where the local option law is adopted. Ex parte Swann, 96 Mo. 44; State v. Beam, 51 Mo. App. 368; Ex parte Handler, 176 Mo. 383. (2) The adoption of the local option law constituted a good defense to a prosecution under the dramshop law for a sale of liquor by a dramshop keeper without a license. State y. Beam, 51 Mo. App. 368.

— No». Berry Q-. Thurman. Judge. (1) That the verdict and judgment is against the evidence, against the weight ,of the evidence, and against the law under the evidence. (2) That instruction 1 given by the court of its own motion is erroneous. (3) That the court erred in refusing the defendant a new trial upon the newly discovered evidence set up in the affidavit attached to the motion for a new trial.

— Hon. Ghesley A. Mosman, Judge. (1) The court sustained the motion for new trial on the sole ground that errror was committed in giving plaintiff’s instruction number fpur. There is no error in this instruction. It correctly states the law. Dickson v. McCoy, 89 N. Y. 400; Brown v. Green, 42 Atl. 991. (2) By a vicious propensity, is included a propensity to do any act that might endanger the isafety and property of others in a given situation.

— Hon. Hermann Brumbach, Judge. (1) The court did not err in giving plaintiff’s peremptory instruction at the close of all the evidence. Bank v. Hainiine, 67 Mo. App. 488; Zwisler v. Storts, 30 Mb. App. 174; Asphalt Co. v. Transit Co., 102 Mo. App. 476; Woolf v. Campbell, 110 Mo.-114. (2) The evidence utterly failed to show an eviction. Lincoln Trust Co. v. Lincoln, 175 Mo. 43; Gray v. Gaff, 8 Mo. App. 392; French v. Pettingill, 128 Mo.

— Eon. Berry G. ThurmanJudge. (1) Now, bearing in mind that the charge as to whisky is the only one now involved, as there was no attempt to prove a sale of wine or brandy, we insist that the indictment is wholly insufficient to sustain a conviction for selling whisky. All the cases agree that the specific quantity must be alleged (although of course the state might not be confined to that exact quantity). Such an allegation is material.

<p>Appeal from Jackson Circuit Court. — Hon. Walter A. Powell, Judge.</p>

— No». Henry L. McCune, Judge. (1) The contract of shipment itself recites that the given rate is in consideration of an agreed valuation and that there is a different and higher rate where no valuation is given. Such is a legal contract and where signed, as in this instance by the parties, is prima facie evidence of the truth .of the statements therein. Hancock v. Railway, 111 S. W. 519; Cable Co. v. Rothgaber, 113 N. W. 88; Railway v. Greer, 58 S. E. 782.

— lion. Louis Hoffman, Judge. (1) The court erred in giving a peremptory instruction in this case, directing a verdict for defendant and in refusing to give the instructions one and two asked by the plaintiff. It was for the jury to say whether the plaintiff had rendered extra and additional services in nursing her mother which were not included in nor contemplated by the provisions of the contract, which had been made for ,$150 per year.

— Eon. Wm. H. Martin, Judge. The abstract states all the facts necessary to enable the conrt to pass on the instructions and other questions presented. Christian v. McDonnell, 127 Mo. App. 630; State ex rel. v. Smith, 172 Mo. 446. Appellant’s abstract does not meet the requirements of the rules of court, nor of the decisions. R. S. 1899, sec. 813. Two juries have found alike for respondent. The judgment was for the right party and should not be interrupted.

— Eon. Henry L. HoCune, Judge. (1) The trial court erred in its conclusion that there was no contract between the parties either expressed or implied, and further erred in refusing the findings of law and fact asked by appellants. 24 Am. & Eng. Ency. Law (2 Ed.), 1090; Hobbs v. Whip Co., 158 Mass. 194, 33 N. E. 495. (2) By agreement of parties there had been a long and continuous course of dealing. This was understood by both.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) Tbe carrier cannot be held responsible for losses resulting from the shipper’s negligence and mistake in indicating tbe intended destination of bis shipment. Express Co. v. Kaufman, 12 Tenn. 161; Con-gar v. Railroad, 24 Wis. 157; Erie V. Wilcox, 84 Ill. 239; Railroad v. Weisman, 2 Tex. Civ.

<p>Appeal from St. Louis City Circuit Court. — No». Jesse A. McDonald, Judge.</p>

— Hon. Chas. A. Killian, Judge. Such a plain case of contributory negligence on part of plaintiff was disclosed by tbe evidence that the court should have given the peremptory instruction requested by defendant. Hedrick v. Railroad, 195 Mo. 121; Guffy v. Railroad, 58 Mo. App. 462; Wait v. Railroad, 165 Mo. 612; Barkley v. Railroad, 148 Mo. 141; Hite v. Railroad, 130 Mo. 139; Portucheke v. Railroad, 101 Mo. App. 52; Erwin v. Railroad, 94 Mo.

— if on. Jas. D. iBarnett, Judge. (1) The court erred in permitting the plaintiff to state that she had broken ribs, it not being shown that she had any special skill or knowledge upon the subject. Eogers on Ex. Test., secs. 3 and 4; Underhill on Ev., secs. 185-187; Wigmore on Ev., sec. 568. (2) The court erred in granting plaintiff’s instruction 1.

— Eon. Jas. G. Barnett, Judge. The court erred in refusing to give the instruction in the nature of a demurrer to the evidence, asked by defendant, at the close of plaintiff’s testimony. Th¿ policy contains a provision that in case of a disagreement as to the amount of loss, that the said loss should be ascertained by appraisers in the manner provided in the policy, and that such appraisal is a condition precedent to the plaintiff’s right to recover.

<p>3. CARRIERS OF PASSENGERS: Instruction: General .Proposition of Law: Harmless Error. In an action against a railroad company for damage incurred by plaintiff, a passenger, in being put off the train short of her destination by the negligence of the defendant, an instruction defining the duty of the defendant railroad company in general terms was cured by other instructions which correctly and definitely stated the law applicable to the case. .</p> <p>2. -: Negligence: Warning to Passengers: Stopping Train Away from Station. The employees of a railroad company on starting from a station announced to the passengers that the next stop would be a certain station. The train stopped before reaching that station and the brakeman went through the car announcing tlie station. A passenger, whose destination was the station thus announced as the next stop, got off the train in mud and water and hy reason of the exposure suffered sickness and physical injury. Reid, in an action for the damage caused thereby, that the employees of the railroad company were negligent in failing to warn the passengers against alighting at the place mentioned.</p> <p>3. -: -: Element of Damage: Instruction. In such action it was proper for the jury in arriving at the amount of plaintiff’s damage to take into consideration the place where she got off the train, the condition of the weather and the sickness and suffering, if any, caused hy alighting at that point.</p> <p>4. -: -: -: Mental Suffering. In such case the plaintiff was not entitled to recover as an element of damage for fright or mental anguish unless she suffered physical injury, hut bodily suffering from cold or being wet, if any, was physical injury within the meaning of the instruction.</p> <p>5. -:-: Prima-Facie Case. In such case the evidence is examined and held sufficient to make out a prima-facie case for plaintiff.</p>

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. The misrepresentation by the respondent (whether innocent or fraudulent) was of a then existing, material fact which pertained to the subject-matter of the contract. There was no meeting of the minds of the parties. To constitute a binding contract the minds of the parties must assent to the same thing in the same sense. Green v. Cole, 103 Mo. 76; Nordyke v. Kehlor, 155 Mb. 654; Perkins v. School District, 99 Mo.

Louis City Circuit Court.— Hon. Daniel (f. Taylor, Judge. (T) To establish the fifth statutory ground for attachment, the plaintiff is required to allege and prove: (a) A purpose on the part of the debtor to remove his property out of the State, (b) An intent by such removal to defraud, hinder or delay his creditors. The element of wrongful intent to defraud, hinder or delay is material to constitute the fifth ground. Reed v. Pelletier, 28 Mo. 173; Douglass v. Cissna, 17 Mo.

Louis City Circuit Court. — Son. Robt. M. Foster, Judge. The court erred in giving to the jury the instruction 1 at the request of the appellee. State ex rel. v. Smith, 64 Mo. App. 819; Hamill v. Talbott, 81 Mo. App. 217; Griffith v. Bailey, 79 Mo. 472; Lankford v. Gebhart, 180 Mo. 632; Hall v. Schoenwecke, 128 Mo. 667; Walker v. Walker, 1 Mo. App. 404; State ex rel. V; Dayton, 77 M'o. 682; State ex rel. v. Banta, 71 Mo.

<p>Appeal from Laclede Circuit Court. — Eon. L. B. - Woodside, Judge.</p>

Louis City Circuit Court. — Hon. Jesse A. McDonaldJudge. The trial court erred in permitting the amended petition to be filed and should have stricken the same from the files, because it amounted to a. change from the cause of action sued on to an entirely different action — from a separate, individual cause of action in favor of A, to a joint cause of action in favor of A, B and C. Slaughter v. Davenport, 151 Mo. 26.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) “Although a corporation is an existence entirely distinct from its officers or members, yet the latter may be held answerable, or in contempt of court, for refusal or neglect to perform the orders, decrees or judgments of the court.” Cook on Corporations, sec. 756.

— Eon. Jas. D. Barnett, Judge. (1) The burden of proving fairness and honesty of transactions between an attorney and his client is on the attorney. Barrett v. Ball, 101 Mo. App. 288;. French v. Cunningham, 149 Ind. 637, 49 N. E. 797; Bingham v. Saline, 3 Am. St. 152; Darlington’s Estate, 30 Am. St. 776; Elmore v. Johnson, 36 Am. St. 401; Cossem v. Herestis,- 94 Am. St. 160; Lawson on Contracts. (2 Ed.), pages 313, 314 and 318; 3 Am. and Eng. Ency.

— Hon. Jas. D. Barnett, Judge. Statement. — On March 24, 1906, S. V: Taylor entered into two contracts with defendant for the transmission of two parcels or sums of money and the payment of them to the order of plaintiff, Leslie A. Downs. One of these contracts was for the transmission and payment of $40 and the other for $24.73.

<p>1. RAILROADS: Fencing Right of Way: Killing Stock. In an action against a railroad company for damage for killing plaintiff’s cow at a point on the road where defendant was required to fence its right of way, the railroad company could not defeat the action on the ground that the plaintiff prevented it from fencing the right of way' at that point, where there was no evidence to show that it was the owner of the land along the right of way where it proposed to run its fence, and where plaintiff claimed that the defendant was attempting to fence oyer its line.</p> <p>2. -: Killing Stock: Venue. In an action against a railroad company for damages for killing plaintiff’s cow, the evidence is examined and held sufficient to warrant a finding that the action was brought in the township adjoining the one where the animal was killed.</p>

<p>Appeal from Franklin Circuit Court. — Eon. R. 8. Ryors, Judge. ■</p>

<p>Appeal from Barry Circuit Court.- — Eon. F. 0. Johnston, Judge.</p>

Louis City Circuit Court. — Eon. J. T. McElhinney, Judge. The. agreement made between Robert G-. Hogan and Cornelia S. Hogan in May, 1901, that he should occupy his wife’s separate property as a home for his family and should pay therefor in lieu of rent, the interest on the encumbrance, the taxes, repairs and insurance, was lawful and valid and was not in any sense fraudulent as to the creditors of Robert G. Hogan.

Louis City Circuit Court. — Hon. Virgil Rule, Judge. Statement. — This action was begun to recover-from defendant, in its own capacity and as trustee under a deed of general assignment, the proceeds of sixteen pianos conveyed by said deed and afterwards sold by defendant. Prior to May 22, 1907, John Feld was a piano dealer in St. Louis. His 'salesrooms were in the-Odeon building on Grand avenue, and his storage room at No. 3505 Easton avenue.

— Hon. L..B. Wood-side, Judge. Appellants were merely endorsers of tbe note sued upon, and as such were entitled to notice of tbe presentment, demand, non-payment and protest of tbe note before they could be held liable tbereon. Sessions Acts 1905, sec. 23, p. 251; Bunker Neg. Inst. Law, sec. 65; Crawford’s Ann. Neg. Inst., sec. 64; Cora v. Levy, 89 N. Y. 658; Downey v. O’Keefe et al. (B. I.), 59 Atl. 929.

Louis City Circuit Court. — Son. Matt. G-. Reynolds, Judge. The defendant was not an innkeeper, upon whom as such was imposed by considerations of public policy and not by contract between the parties, the liability of insurer, for all losses to a guest, not resulting from the act of Cod, the public enemy, or the negligence of the guest himself. And first as to the liability of an innkeeper, its limitations and the policy of the law in defining the term.

— No». Jas. D. Barnett^ Judge. (1) The enforcement of plaintiff’s lien against the land he had bought is one of the recognized heads of the equity jurisprudence, and is not attainable in a simple action at law for damages, and lienee there is a prerogative jurisdiction in equity for this relief, and -a court of equity having- once acquired jurisdiction will retain it to do complete justice. McGhee v. Bell, 170 Mo. 135; Holland v. Anderson, 38 M'o. 55; Real Estate Sav.

— Eon. L. B. JVoodside} Judge. Title to premises in dispute goes only to character of relief. If plaintiff is in actual possession and has been for many years he is not in a position nor has he occasion to sue. The defendant is proper party to bring action and if he neglects injunction will be made perpetual. Echelkamp v.' Shrader, 45 Mo. 509; Sills v. Goodyear, 80 Mo. App. 134.

— Ron. Jas. L. Fort, Judge. (1) Our contention is, and all tbe evidence bears out our contention, that tbe'mule came upon tbe railroad track at a public crossing, and it makes no difference where it was struck if it came upon tbe track at a public crossing with tbe company’s railroad, tbe company is not liable for double 'damages for tbe killing of tbe mule.

— Hon. Jas. T. Neville, Judge. Where action is commenced against several defendants, plaintiff may have judgment against one of them only. As in the instance of suit against partnership, where the evidence, as in this case, shows that defendant; Haseltine is liable, the judgment against him is proper. Mfg. Co. v. Ham, 112 Mo. App. 722; Crews v. Lackland, 67 Mo. 619.

— Hon. Henry 0. Riley, Judge. No negligence on tlie part of defendant was proven, but the evidence showed simply a cáse of accident; for which there is no liability. Fuchs v. St. Louis, 167 Mo. 635; Boland v. Railroad, 36 Mo. .484; Chanler v.. Gas Company, 174 Mo. 321; Kelley v. Railroad, 105 Mo. App. 376.

— Eon. Jos. J. Williams, Judge. Statement. — This is an appeal from the action of the circuit court of Washington county in overruling a motion to set aside a levy on real estate in St. Francois county, made under an execution issued out of the circuit court of Washington county and directed to the sheriff of St. Francois county, on a judgment of the Washington Circuit Court, in favor of respondent and against the appellant and one Queen.

<p>Appeal from Lewis Circuit Court. — Hon. Chas. D. Blew art, Judge.</p>

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. The burden of proof should have been on plaintiff to show, as was alleged by him, that the alleged agreement between garnishee and defendant whereby the latter was to receive his -wages bi-weekly in advance, was not made in good faith but was made for the purpose of defeating plaintiff’s claim and fraudulently preventing the collection thereof. Such agreements are not void as a matter of law.

—Eon. John T. Moore, Judge. The court is authorized to tax an attorneys’ fee in favor of attorneys bringing a partition proceeding, but cannot tax it in the absence of any agreement whatever, or tax a fee in excess of the amount agreed upon between the plaintiff and Ms counsel. Liles v. Liles, 116 Mo. App. 413; Frank v. Crawford, 14 Mo. App. 599; Gulick y. Huntley, 144 Mo. 241; Bank y. King, 73 Mo. 590; Draper v. Draper, 29 Mo. 13.

<p>Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.</p> <p>(1) Where the finding is inconsistent with the admissions of the successful party or the uncontra-dicted evidence, it will be set aside on appeal. Holt v. Martin, 53 Mo. App. 187; Muir y. Proctor & Gamble Co., 81 Mo. App. 420; Joy v. Cale, 124 Mo. App. 575. (2) It is settled in this State that the solemn admissions of a party, made in the course of a trial, have the same effect as if contained in his pleadings, and for the purpose of the action are to be taken as true. Shanahan y. Transit Co., 109 Mo. App. 228, 233; Holmes v. Leedbetter, 95 Mo. App. 419; Feary v. Railroad, 162 Mo. 105; Septomsld v. Railway, 102 Mo. App. 110; Cogan v. Railway, 101 Mo. App. 179; Erwin v. Railway Co., 94 Mo. App. 297; Taylor v. Railroad, 185 Mb. 240,. 262.</p> <p>Where a jury is waived, and the issues are submitted to the cojirt, all presumptions are in favor, of the correctness of its findings on the questions of fact involved. Bond & Stock Company (Mo.), 112 S. W. 244; Hamilton v. Boggess, 63 Mo. 251.</p>

— Hon. Henry G. Riley, Judge. The defendant, Hainley, was totally incompetent 'to testify in this suit as to any transaction which he may have had with the deceased, Coleman. R. S., 1899, sec. 4652.

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. (1) A reply 'denying each and every allegation of “new matter” contained in tbe answer is -insufficient and does not put in issue tbe matters of avoidance set forth in said answer. Long v. Long, 79 Mo. 644; Snyder v. Free, 114 Mo. 860; Young v. Schofield, 132! Mo. 650; Dezell v. Fidelity &.Casualty Co., 176 Mo. 253; Betz y. Telephone Co., 121 Mo. App. 473.

— Hon. Henry G. Riley, Judge. (1) The deceased in this case was on the north side of the railroad track, going west, and the train which struck her was coming east, and the court erred in refusing to give the peremptory instruction at the close of all the evidence in the case as prayed for by the defendant. Kries v. Railroad, 161 Mo. 379; Skipton v. Railroad, 82 Mo. App. 134; White v. Railroad, 84 Mo.

<p>JUDGMENTS: Final Judgment: Several Defendants: Assignment. Under section 766, Revised Statutes 1899, a judgment is not final until the rights of all the parties to the action are finally determined. Where, in an action, against three parties, judgment was rendered against two of them and not dismissed hut continued as to' the third, it was not a final judgment which could be assigned so as to entitle the assignee to maintain suit upon it.</p>

— Hon. Henry G. Riley, Judge. The judgment is fatally defective because the verdict .rendered was not concurred in by three-fourths of the members of the jury. Amendment to the Constitution, adopted 1900; Session Acts of Missouri, 1889, page 382; Marshall v. Armstrong, 105 Mo. App. 234.

— Ron. Jos. J: Williams, Judge. Statement. — The defendant was proceeded against on information for carrying concealed upon and about Ms person a “dangerous and deadly weapon, to-wit: a pistol, in violation of section 1862, Revised Statutes • 1899. ’ ’ His trial was before the court and a jury • be was found guilty, Ms fine assessed at the sum of fifty dollars aud judgment went accordingly. Prom this defendant has appealed.

— Hon. F. G. Johnston, Judge. (1) The description of the property sued for is sufficient and as good as could be given of such chattels. Crum v. Eliisten, 33 Mo. App. 591; Bank v. Jennings, 18 Mo. App. 651; Hill v. Robinson, 16 Ark. 90.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. The general rule that where a person requests the performance of a service' and the request is complied with and the service is performed, the law raises an implied promise to pay the reasonable value of the services, does not obtain where one person requests a physician to perform services for a patient, unless the relation of the person making the request to the patient is such as raises a legal obligation on his part…

— Now. -John T. Moore, Judge. Now, the plain, indisputable legal proposition is presented, that if such were true, the agreement is wholly without consideration, and a mere nudum pac-tum. This contention of appellants is so apparent and the law so Avell settled in his favor that it would seem tó be useless to cite authorities. Zeer v. Klnng, 121 Mo. App. 285; Ward v. Hartley, 178 Mo. 135; Haseltine v. Ausherman, 87 Mo. 410; Smith v. McCall, 63 Mo.

<p>1. FRATERNAL BENEFICIARY ASSOCIATIONS: False Statements in Application for Membership: Warranties. Representations made by an applicant for membership in a fraternal beneficiary association are warranties in this State and when false avoid the policy issued thereon whether the matters misrepresented contribute to produce death or not.</p> <p>2. -: -: Corporations Organized in Foreign State. Wihere a fraternal beneficiary society is organized under the laws of another State its charter and laws will be given their natural effect unless shown to be inconsistent with the laws of the State under which it was organized.</p> <p>3. EVIDENCE: Admissions: Practice. The deposition of a party to a suit may be introduced in evidence as an admission, although the party is present in court at the trial.</p> <p>4. -: Witnesses: Privilege. Where a trial court carefully inquired into whether the testimony of a physician offered by a party was privileged, its ruling upon the subject will not be disturbed by the appellate court.</p>

Louis City Circuit Court. — Hon. Warwick Hough, Judge. Tbe court erred in finding that there were only thirty-seven days of the admitted eighty-six days’ delay in the final completion of the work by the plaintiff for which it ivas responsible under the terms of the contract, because the evidence does not show that the defendants’ failure, if any, to comply with the strict letter of the contract caused plaintiff even a day’s delay in the performance of its part of the work…

— No». Ghas. Killian, Judge. Instructions 1 and 3, given on behalf of defendant, conflict with instruction 1, given on behalf of plaintiff. The instruction given on behalf of plaintiff correctly states the law, while the instructions given on behalf of defendant do not correctly state the law.

<p>Appeal from St. Francois Circuit Court. — Hon. Chas. A. Killicm, Judge.</p>

— Eon. Ghas. A. Killian, Judge. (1) The widow must have filed her election in order to have been entitled to one-half of personal estate. R. S. 1899, secs. 2939, 2942, 2943; Bryant v. Christian, 58 Mo. 98; Griffith v. Canning, 54 Mo. 282. (2) The doctrine is: That when ap election creates an interest, nothing will pass until an election is made. Hamilton v. O’Neil, 9 Mo. 11;' Matney v. Graham, 50 Mo. 564; Bradford v. Wolf, 103 M'o. 398.

— Hon. John T. Moore, Judge. That the demurrer to the evidence should have been sustained by the court of the evidence of plaintiff and his witnesses failed to prove the allegations in the petition. Flanders v. Green, 50 Mo. App. 371; Riley v. Sherwood, 144 Mo. 354. That the court erred in receiving evidence subject to objection of the defendant and withheld his ruling on such evidence and then oral-Iv told the jury not to consider certain parts of it.

<p>Appeal from Greene Circuit Court. — Hon. Jas. T. Neville, Judge.</p>

— Eon. F. G. Johnston, Judge. (1) The court erred in giving, over plaintiff’s objection, defendant’s instruction “A.” The instruction is not based upon all the evidence bearing upon the issues to which it is directed. The evidence is conclusive that the stallion was to be returned for exchange by July 1, 1906, if not satisfactory.

<p>1. JUSTICES OF THE PEACE: Contract Sued on: Evidence. In an action on an account filed before a justice of the peace for several items of advertising matter furnished by the plaintiff to the defendant, the order given for the advertising matter was not the contract sued on, so as to require it to be filed, under the provisions of section 3853, Revised Statutes 1899; such order was mere evidence.</p> <p>2. APPELLATE PRACTICE: Bill of Exceptions: Time for Filing. Where on appeal to the Court of Appeals, the appellant was granted on the 15th day of August ninety days from that date in which to file bill of exceptions and thereafter the time was was extended ninety days from the expiration of that time, the time expired on February 11 following so that filing the bill of exceptions on February 12 was out of time.</p>

— Hon. Henry G. Riley, Judge. (1) An indorsee or purchaser of a negotiable hill or note, after maturity, takes the same and only the same interest that his indorser or vendor had at the time of the indorsement or sale. Kellogg v. Schnaake, 56 Mo. 138; Fisher v. Leland, 4 Cush. 456; Tiedeman on Bills and Notes, sec. 107.

<p>Appeal from Stoddard Circuit Court. — Eon. James L. Fort, Judge.</p>

<p>Appeal from Butler Circuit Court. — Non. J. 0. Sheppard, Judge.</p>

<p>APPELLATE PRACTICE: Insufficient Transcript of Record: Indictment. On an appeal from a conviction wiiere the only errors assigned go to the sufficiency of the indictment to sustain a verdict, the court cannot review such errors where the trans-script fails to set out the indictment either in full or in substance.</p>

<p>1. DIVORCE: Judgment for Alimony: Imprisonment for Debt. A decree of court directing the payment of a sum of money as alimony in a proceeding for divorce is a judgment for debt, and á party cannot be imprisoned for contempt of court in refusing to obey the decree for the reason that imprisonment for debt has been abolished in this State. [Following Cough-lin v. Ehlert, 39 Mo. 285.]</p> <p>2. -: -: -: Fraudulent Conveyance. A defendant in a divorce proceeding who had been ordered by a decree to pay certain sums of alimony to his former wife, could not be imprisoned for contempt of court in refusing to obey the order on the ground that he had fraudulently conveyed his land in order to defeat the payment, the decree being for the payment of money and not for the delivery of a specific thing or the conveyance of the land.</p>

<p>Appeal from Montgomery Circuit Court. — Eon. Jas. D. Barnett} Judge.</p>

<p>Appeal from Oregon Circuit Court. — Now. W. N. Evans, Judge.</p>

— Eon. J. G. Sheppard, Judge. Defendant’s set-off being based upon a mutual, open and current account, embracing reciprocal demands between the parties, was not barred by the five-year Statute of Limitations, for the reason that the last item on the account was May 4, 1907, within five years of the time of filing the set-off. R. S. 1899, sec. 4278; Chadwick v. Chadwick, 115 Mo. 581; Gibson & Bro. v. Jenkins, 97 M'o. App. 27; Moore v. Renick, 95 Mo.

— Eon. J. G. Sheppard, Judge. (1) . The court erred in permitting the plaintiff to testify that the soil was washed away from two or three acres of his land, and that he was damaged by the washing away of this soil in the sum of $500. That is not the measure of damages in a case where there is injury to the freehold, the measure of damages is the difference between the yalue of the land just before the injury and immediately after. Wiggins v. Railroad, 119 Mo. App. 492.

Louis City Circuit Court. — Eon. , O’Neill Ryan, Judge. In order to recover against either of said defendants, the evidence must show not simply the neglect of official duty by the defendant directors, whereby the plaintiffs herein suffered loss, but actual fraud upon the part of said directors in the transaction complained of.

— Eon. Henry 0. Riley, Judge. (1) It is insisted by defendant that the failure to furnish oil to plaintiff for a light for his torch was not the proximate cause of the injury under the facts in this case and he should not recover. The accident might have happened in broad daylight and it is conjecture to assume, under the evidence, that the defendant is liable because it happened on a dark night.

<p>Appeal from Knox Circuit Court. — No». Charles D. Stewart, Judge.</p>

St. Francois Circuit Court. — Hon. Ghas. A. Killian, Judge. Monopolies are not regarded favorably by the law and the power to create them will not be implied in a municipal charter. Town v. Company, 94 Mo. App. 644; Dillon, Munic. Corp. (4 Ed.), sec. 692; Endlicb, Interpretation (1888), sec. 354.

<p>Appeal from Stoddard Circuit Court. — Hon. Jas. L. Fort, Judge.</p>

<p>REPLEVIN: Prima-Facie Case. In an action to replevin a wagon, the evidence is examined and held sufficient to warrant a finding that the wagon was delivered to the defendant for the purpose of settling a debt and that the person who conducted the transaction for the plaintiffs had due authority to do so.</p>

Louis City Circuit Court.Judge. (1) Under tbe pleadings tbe burden to establish this contract by clear and satisfactory evidence rests upon defendant. Taylor v. Yon Scbrader, 107 Mo. 225; Arnold v. Cason, 95 Mo. App. 437; Strange v. Crowley,. 91' Mo. 287; Yeth v. Giertb, 92 Mo. 97.

— Hon. L. B. Wood- ' side, Judge. Where all members of the school board are present and participate in hiring a teacher the contract is valid notwithstanding a lack of call or notice of the meeting. R. S. 1899, sec. 9766; Decker v. School Dist., 101 Mo. App. 119; Armstrong y. School District, 28 Mo. App. 177; 20 A. & E. Ency. L., 1212 and note 3; Troy Mining Co. v. White, 42 L. R. A. 549; Magnan v. Freemont, 27 Am. St. 436.