Volume 136 — Missouri Appeal Reports

<p>Appeal from Stoddard Circuit Court. — No». Jumes L. Fort, Judge.</p> <p>The live stock contract provides that notice in writing must be served on the defendant railroad corn-paying within one day after the delivery to the company at the stock yards, and a failure to do so would defeat any cause of action that might be brought by the plaintiff herein. Dawson v. Railway, 76 Mo. 514; McBeach v. Railway, 20 Mo. App. 445; ■ Brown v. Railroad, 18 Mo. App. 568.</p> <p>The courts of .this State are uniform in their holding that where a party has by his course of action indicated that he is satisfied with the notice given he cannot afterwards take advantage of such failure. Summers v. Railway, 114 Mo. App. 458. Nor is it the essence of the contract'here, and if it were, defendant has waived it, and by the action of it, agent is estopped from asserting it. Brown v. Railway, 18 Mo. App. 568; Live Stock Co. v. Railroad, 100 M’o. App. 674.</p> <p>Statement. — Plaintiff asks damages for injuries to sheep while in transit over defendant’s line of railway, it being alleged the sheep were delivered to the company in good and perfectly dry condition, at Elsinore, Missouri, to be carried to the National Stock Yards at East St. Louis, Illinois; that through the carelessness of defendant they became wet while in transit and the car they were shipped in became so wet as to be unfit for the use of the sheep and defendant negligently permitted them to be kept therein though it had knowledge of their condition and the condition of the car; that plaintiff was shipping the sheep to be sold on the market at the National Stock Yards, and as the direct result of the careless and negligent' acts of defendant, the sheep were damaged and on their arrival at destination were unfit for market; that plaintiff had to keep them at an expense to himself and finally sell them at a loss. The action was instituted before a justice of the peace, no answer being filed by defendant. The case progressed in due course to the circuit court, where plaintiff proved he was the owner of the sheep and gave evidence to prove the other averments of his complaint. Defendant put in evidence a bill of lading which showed the sheep, 110 head, had been shipped from Elsinore by Chas. Shrene, consigned to C. M. Keyes Commission Company, National Stock Yards, East St. Louis, .Illinois; also that as a condition precedent to a recovery of damages for delay, loss or injury to the stock covered by the contract, the shipper must give notice in writing of any claim therefor, to some general officer, of the nearest station agent of the company, or the agent at destination, before the stock was removed from the point of shipment or place of destination, and before it was mingled with other stock; that this written notification should be served in one day after'the delivery of the stock at destination so the claim might be fully and fairly investigated. The bill of lading said failure to comply with the clause requiring notice should be a bar to any recovery of damages. The shipment arrived at the stock yards July 21, 1906, and a detailed statement of damages was given by the consignee in behalf of plaintiff to defendant the second day afterward, the damages being laid at $50.30, or within a few cents of the amount demanded in the complaint. An employee of the consignee gave the live stock agent of defendant verbal notice of the damaged condition of the sheep the day of their arrival and asked the agent to examine them, but he said he would not examine them, but for the consignee to go ahead and sell the sheep and put in a claim for damages.</p>

— Hon. David H. Eby, Judge. (1) The presumption is in favor of the propriety of an assessment, and liability on it can be avoided only by showing fraud or gross mistake, of which there was no evidence in this case. There was error in refusing defendant’s ninth instruction. 11 Cooley’s Briefs, 967; Insurance Co. v. Groff, 26 Atl. 63; 11 Cooley’s Briefs, 961; Schmidt v. Insurance Co., 106 S. W. 1082; Hannum v. Waddiil, 135 Mo. 162.

<p>Appeal from Ripley Circuit Court. — Hon. J. C. Sheppard, Judge.</p>

— Eon. Henry G. Riley, Judge. ' (1) This plaintiff also introduced sections 6658 and 6660, on page 1383, of the same Digest of the Laws of Arkansas. This was all the evidence of the law of Arkansas introduced and as the injury happened in that State and the suit was a common law action brought in the courts of Missouri, the common law obtaining in the State of Arkansas will govern. Root v. Railroad, 195 Mo. 370; Lee v. Railroad, 195 Mo. 415; Chandler v. Railroad, 127 Mo.

— Eon. John O. Turk, Special Judge. A party will not be permitted to prove a matter not pleaded. Halpin Mfg. Co. v. School District, 54 Mo. App. 871. A party wrill not be allowed to introduce evidence in support of a defense not set out in his answer. Currier v. Lowe, 32 Mo. 203; Edwards v. Gibbony, 51 Mo. 129; Russell v. Whitely, 59 Mo. 196; Kuhn v. Weil, 73 Mb. 213; Weil v. Poston, 77 Mo. 284; Edgar v. Knpper, 110 Mo. App. 280.

Appeál from St. Louis City Circuit Court. — No». Bobt. M. Foster, Judge. (1) The trial court misconceived the rule of liability in this case. The defendant was only a warehouseman, holding the property described in the petition under no special contract, and was therefore liable only for negligent loss or injury to such property. G-ashweil'er v. Railroad, 83 Mo. 119, 30 Am. & Eng. Ency. Law (2 Ed.), 46.

Louis County Circuit Court. — No». John W. McElhinney, Judge. (1) In support of the proposition, that the contract contained the implied agreement on the part of Contractor Banks to pay plaintiff’s demand, appellant begs to refer to: Krey v. Husmann, 21 Mo. App. 343; Casey v. Gun, 29 Mo. App. 24.

Court. — Hon. Leigh B. Woodside, Judge. (1) • The law is well settled in this State that before an indorsee’s title to a promissory note can be impeached he must have actual knowledge of facts which impeach the validity of the note. Mere knowledge of facts which would put a prudent man upon inquiry is not sufficient. The good faith of the transaction should be, and is the decisive test.

<p>Appeal from St. Louis City Circuit Court. — Hon. O’Neill Rijan, Judge.</p>

— Non. Jas. 'p. :Barnett, Judge. The court erred in refusing to declare the law to be that this proceeding was a direct attack upon the order or judgment of the probate court of Lincoln county appointing Young curator; and that no estoppel resulted from the fact that no appeal was taken from such order or judgment. In re Looney, 112 Mo. App. 195.

<p>1. APPELLATE PRACTICE: Judicial Notice: Terms of Court. Appellate courts can take judicial notice of the beginning of a term of a trial court, but cannot take judicial notice of its «nding. Where an abstract of the record recited that a judgment was rendered on the '18th day of July and a motion for new trial filed on the 20th day of July in the same year, there being no .recital in the record showing that the term at which the judgment was rendered continued to the latter date, the Court of Appeals will not presume that the motion for new trial was filed at the same term.</p> <p>2. -: Bill of Exceptions: Abstract of Record. Where an abstract of the record purported to set out the evidence but showed no caption, no filing, no indorsement and no identification of the alleged evidence with a bill of exceptions, the appellate court could not review errors assigned at the trial.</p> <p>3. PRACTICE: Misjoinder of Parties: Demurrer: Waiver. Where a demurrer to a petition for improper joinder of parties plaintiff is overruled and the defendant answers alleging the improper joinder, he does not waive his right to raise on appeal the objection that there was such a misjoinder.</p> <p>4. -: -: Parties: Identity of Interests. Several parties dealing in bottled drinks with their several brands blown in their respective bottles, could unite in an action to enjoin another company from acquiring and using their bottles by refilling the same with inferior beverages and selling them under the names given them by the several parties; it was a species of unfair competition with all the plaintiffs which was charged against the defendant for which they had a common remedy.</p>

— Hon. L. B. Wood-side, Judge. Where the evidence shows a transaction with an individual member of a partnership made before the partnership is entered into, and the suit is against the partnership, and the evidence does not show a justification for the action against the partnership, this action cannot be maintained. CalloAvay v. Woodward, 28 Mo. App, 324.

— Hon. Henry G. Riley, Judge. (1) Before plaintiff is entitled to recover in this case he must show that either he or his grantors had been in actual possession of tbe entire premises sued for at some time within three years before tbe suit was brought. Miller v. Tillman, 61 Mo. 317. And by tbe evidence of plaintiff’s own witnesses, Norrid and Pate, plaintiff nor bis predecessors had been in possession, and on tbis material point there is no conflict in tbe evidence.

— Eon. Ghas. D. Bteioart, Judge. (1) Aside from the statute, which should conclude this case there isneither dedication nor acceptance shown that would establish a right under any law, or in reason, or justice.

— Eon. Henry 0. Riley, Judge. (1) Under the uncontradicted evidence of both the plaintiff and the defendant the plaintiff was not entitled to recover, and the court should have given defendant’s instructions so declaring. Zimmermann v. Railroad, 71 Mo. 476; Purl v. Railroad, 72 Mo. 168; M'aloy v. Railroad, 84 Mo. 270; Carrier v. Railroad, 175 Mo. 470; Aldrich v. Transit Co., 101 Mo. App. 77; Shanks v. Railroad, 101 Mo.

— Eon. J. G. Sheppard, Judge. The court erred in admitting evidence of the repair of the sidewalk made subsequent to plaintiff’s injury. Bailey v., Kansas City, 189 Mo. 503 ; McKelvey on Evidence, p. 136; Miller v. Canton, 123 Mo. App. 325; Ely v. Railroad, 77 Mo. 34; 16 Am. and Eng. Ency: Law, p. 457.

<p>Appeal from Butler Circuit Court. — Hon. J. G. Sheppard, Judge.</p>

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

<p>1. ADMINISTRATION: Appeals: Probate Courts: Order Appointing Administrator. An appeal does not lie from an order of a probate court appointing an administrator of an estate. [Following Grover v. Fowler, 108 Mo. 465.]</p> <p>On Motion for Rehearing.</p> <p>2. -:-:-:-. An appeal from a ruling of a probate court appointing an administrator does not lie, although. the order includes a refusal to appoint another person as administrator.</p>

— No». Eenry M. Ramey, Judge. (1) The ordinance authorizing the work is void because it fails to fix the time within which the work should be completed, as required by the mandate of the Charter of St. Joseph as amended by the Act of 1903. Laws 1903, p. 64, sec. 9. Woolen Co. v. Brickwedie, 60 Cal. 166; City v. King, 57 N. Y. Supp. 116; Dickey v. Porter, 203 Mo. 36; Sedalia ex rel. v. Smith, 206 Mo.„ 366.

<p>1. MASTER AND SERVANT: Judgment: Negligence: Insurer. The master is not required to have infallible judgment and is not responsible for mistake which the exercise of reasonable care would not avoid; otherwise he would be an insurer of the safety of the servant.</p> <p>2. -: Servant’s Care: Assumption: Insurer. The master has the right to assume the servant himself and his fellow-servants in performing a' joint service will exercise ordinary care in regard to their own and each other’s safety. Otherwise he would become an insurer against the negligence of fellow-servants.</p> <p>3. -: Negligence: Foreman's Direction. A foreman directed three men to move a certain iron pipe. In doing so two of the men without warning let go the rear end and in falling it injured the plaintiff who held on. Held:</p> <p>(1) The direction was not negligent since there was no evidence of the undersize of the other fellow-servants and the service was simple and nothing to show any ill results in case of the inability to perform the labor.</p> <p>(2) The approximate cause of the injury was the negligence of the fellow-servant unmingled with any negligence of the foreman.</p> <p>4. -: Protest: Master's Superior Knowledge: Discharge: Held, the case was not one of reliance upon the master’s superior knowledge and a mere threat to discharge without such reliance will not avail the servant.</p> <p>5. -: Assumption of Risk: Knowledge of Servant. Held, from the character of the work the servant must have known as much as the master about the capacity of himself and his fellow-servants to carry the pipe, and therefore he assumed the risk notwithstanding the threat to discharge.</p>

— Hon. Henry L. McGune, Judge. (1) The true contract was on the terms not of the original order, but of the varying acceptance, which did not provide for the rejection of mill culls. 9 Cyc. 265; Taylor v. Van Schreider, 107 Mo. 206; Mumford v. Wilson, 15 Mo. 540; Strange v. Crowley, 91 Mo. 287; McLean v. Pastime Gym. Asso., 64 Mo. App. 55; Can-gas v. Rumsey Mfg. Co., 37 Mo. App. 297; Howard v. Scott, 98 Mo.

<p>Appeal from Livingston Circuit Court.— Hon. Francis H. Trimble, Judge.</p>

— Hon. Ghesley A. 31 os man^ Judge. (1) The negligence pleaded was neither proved nor submitted to the jury, and there was therefore a fatal variance between the pleading and proof and plaintiff was permitted to recover upon negligence not pleaded. Raining v. Railway, 157 Mo. 447; Bohn v. Raihvay, 106 Mo. 429; O’Brien v. Steel Co., 100 Mo. 82; Current v. Railway, 86 Mo. 62. (2) Deceased assumed the risk and was guilty of contributory negligence. Roberts v. Tel.

— No». James N. Blover, Judge. (T) The court committed error in refusing defendant’s instruction number 6. (2) The court committed error in refusing defendant’s instruction number 7.

— No». Thomas J. Seehorn, Judge. (1) The record in this cause printed and filed by the appellant fails to show the filing of a motion for a new trial, or the filing of a bill of exceptions, and therefore the exceptions relied upon by the appellant cannot be reviewed in this court, and there being no error assigned on the record proper the judgment should be affirmed. Harris v. Kobusch, 127 Mo. App. 441; Ellman v. Schultz, 127 Mo. App. 203; In re Boeckenkamp, Est., 127 Mo.

— Hon. William H. Martin, Judge. (1) The evidence showed that plaintiff voluntarily chose a position of danger — a position where he was likely to sustain injury, regardless of any negligent or unusual act of the defendant’s servants, and defendant’s demurrer to the evidence, therefore, should have been sustained. Fore v. Railroad, 114 Mo. App. 551; Purcell v. Shoe Co., 187 Mo. 290; Moore v. Railway, 146 M'o. 572; Sparks v. Railroad, 31 Mo. App. 111.

— Hon. James A. Goodrich, Judge. (1) From May 23, 1905, to July 31, 1906, is an unreasonably long time to -tie up a street on work which was to be done in one hundred days. Spalding v. Forsee, 109 M'o. App. 675. (2) Plaintiffs ought to have been permitted to show that, as soon as the court proceedings were ended, they raised the money to pay damages to hasten the grading.

— Hon. E. E. Porterfield, Judge. (1) This cause should be dismissed because there is no record of any kind showing that the circuit court ever obtained jurisdiction of the case by appeal. Inks v. Brakebill Bros., 119 Mo. App. 159.

— No». Thomas J. Beehorn, Judge. (1) Where the parties make the reduction of the contract to writing and its signature by them, a condition precedent to its completion, it will not be a contract until that is done; and this is true although all the terms of the contract have been agreed upon. Eads v. Carondelet, 12 Mo. 113. (2) The draft of the contract prepared by defendant was the proposal. It contained the condition that it must be signed and returned at once.

— Eon. James E. ¡Mover, Judge. (1) There was a total failure to prove, and the jury did not find that the servant Kincaid had committed any act of negligence on his part, and, in the absence of such proof and finding there could be'no recovery against the Roehr Company in this kind of an action. Doremus v. Root, 23 Wash. 719, 63 Pac. 572; ■McGinnis v. Railroad, 200 Mo. 347; Delaplain v. Kansas City, 109 Mo. App. 107; Stevick v. Railroad, 39' l Wash. 501, 81 Pac. 999.

— Hon. Thomas J. Beehorn, Judge. (1) The contract upon which it is sought to hold the appellant is a verbal agreement, either (a) to answer for the debt, default or miscarriage of another, or (b) a contract concerning' an interest in real estate, neither of which can be proved under the statute of frauds. R. S. 1899, secs. 974, 1427, 3418; Osborn v. Emery, 51 Mo. App. 408; Rottman v. Pohlman, 28 Mo. App. 399; Bryan v. Jamison, 7 M'o. 106; Allen v. Richards, 83 Mo. 53.

— Hon. Hugh Dabbs, Judge. (1) As the mule sued for in this case was killed in the Indian Territory, plaintiff was not entitled to institute a suit to recover the value thereof before a justice of the peace in Missouri, for the reason that section 3839, Eevised Statutes 1899, limits the jurisdiction of a justice of the peace in actions against a railroad company for killing or injuring mules, cattle or other animals to the township in which the injury happened, or to any…

— Hon. Berry (?. Thurman, Judge. (1) Section 9763, Revised Statutes 1899, provides among other things, that a schoolhouse may be used for religious, literary or other public purposes, when demanded by a majority of the voters of such district voting at an annual or special meeting where such question is submitted, etc. (2) Section 1889 of the Revised Statutes provides against the wrongful entry of said schoolhouse. State v. Tutt, 63 Mo. 601, 602.

<p>Appeal from Jasper Circuit Court. — Hon. Haywood Scott, Judge.</p>

— No». Haywood Scotty Judge. (1) It is settled law in this State that either party to an executory contract has the right to repudiate the contract on the usual terms of compensating the other for damages; and, that when the contract is so repudiated, the other party is not thereafter at liberty to proceed with the performance. Catalog Co. v. Car Co., 120 Mo. App. 583; Dillon v. Anderson, 43 N. Y. 23; 2 Mechem on Sales, sec. 1699, p. 1379.

<p>BILLS AND NOTES: Delivery: Consideration: Evidence: Instruction. The defense to certain notes was non-delivery and want of consideration. It is held that while there was substantial evidence supporting non-delivery yet such evidence was not conclusive but raised issues for the triers of fact and these issues being properly submitted to the jury, the verdict binds.</p>

— Hon. George W. Wanamalcer, Judge. (1) Appellant contends that the court erred in admitting evidence of the market value of the apples, what they sold for, and what the Avindfalls or apples lying upon the ground were worth. Brooks v. BlackAvell, 76 Mo. 309; State ex rel. v. Martin, 77 Mo. 670; Haines v. Pearson, 100 Mo. App. 555; Cook v. Putnam Co., 70 M'o. 668; Arnold v. Maryville, 110 Mo. App. 254; Galm v. Railroad, 113 Mo. App. 591; Garvin v. Railway, 100 Mo. App. 617.

<p>Appeal from Jasper Circuit Court. — Non. Hugh Dabbs, Judge.</p> <p>(1) Under the evidence plaintiff was not entitled to recover. Fugler v. Bothe, 117 M'o. 493; Steinhauser v. Spraul, 127 Mo. 541; Blundell v. Miller & Co., 189 Mo. 552;' Mathis v. Stock Yards Co., 185 Mo. 434; Cristy v. Railway, 131 Mo. App. 266, 110 S. W. 694. (2) If defendants are liable here, then the master is an insurer. Plaintiff was an experienced man, the situation and all attendant dangers were open and apparent to and understood by plaintiff.</p> <p>(1) If defendant was negligent in failing to furnish plaintiff with a scaffold on which to work, plaintiff did not assume the risk of danger arising out of such negligence. Dakan y. Mercantile Co., 197 Mo. 238; Cole y. Transit Co., 183 Mb. 91; Curtis v. McNair, 173 Mo. 280; Pauck v. Beef and Prov. Co., 159 Mo. 477; Settle y. Railroad, 127 Mo. 342; Charleton v. Railroad, 200 Mo. 433; Smith v. Kansas City, 125 Mo. App. 150; Harrod v. Packing Co., 125 Mo. App. 357; Naughton v. Gas Light Co., 123 Mo. App. 192; Bokamp v. Railroad, 123 Mo. App. 270; Mack v. Railroad, 123 Mo. App. 531; Phippin y. Railroad, 196 Mo. 346; Rigsby v. Oil Well Supply Co., 115 Mo. App. 303; Dodge v. Coal & Coke Co., 115 Mo. App. 504; Gamache v. Tin Foil & Metal Co., 116 Mo. App. 599. (2) It is not suggested that plaintiff was guilty of contributory negligence, but if that question is involved in the case it should be determined by a jury. Dakan y. Mercantile Co., 197 Mo. 238; Waldhier v. Railway, 87 Mb. 37; Devlin y. Railway, 87 Mo. 545; Murphy y. Railway, 115 Mo. Ill; Settle v. Railway, 127 Mo. 336; Swadley y. Railway, 118 Mo. 268; Pauck y. Dressed Beef Co., 159 Mo. 467; Wendler v. House Furn. Co., 165 Mo. 527; Minner v. Railway,' 167 Mb. 99; Cole v. Trasit Co., 183 Mo. 81; Lee y. Railway, 112 Mo. App. 372.</p>

— Now. Louis Hoffman, Judge. (1) Tlie plaintiff’s husband, was a competent witness to testify in behalf of his wife in this case, notwithstanding the statute and the common law rule concerning his competency to testify in her behalf.

— Eon. G. A. Denton, Judge. (1) Appellant’s abstract of the record fails to show the filing of a motion for a new trial, a motion in arrest of judgment, an affidavit for appeal, or a bill of exceptions. It is true these facts are all shown by the bill of exceptions, but this is not sufficient, they must all be shown by the abstract of the record. Harris v. Kobusch, 127 Mo. App. 441; Bank v. Magee, 125 Mo. App. 439; Perry & Gordon v. Coffee & Spice Co., 98 Mo.

— Hon. Haywood Scott, Judge. (1) Plaintiffs made a prima-facie case by showing by substantial testimony that defendant’s wires, charged with an electric current sufficient to cause death, were maintained by defendant with the insulation in a rotten and defective condition at a point in a public alley where persons had a right to go, and where it knew or could have known that persons were likely to come in contact with said wires; and further showing that plaintiffs’…

— Hon. E. E. Porterfield, Judge. (1) The questions with reference to the number of people that cross and are on the streets and crossings at the point of accident, and the answers that it was a populated portion of the business district and a great many people travel about there, was immaterial and inadmissible. Objection thereto should have been sustained and the error was material. The same was not pleaded. 14 Ency.

Circuit Court. — Eon. Samuel A. Davis, Judge. (1) A stipulation contained in a contract of affreightment voluntarily entered into between the parties, requiring the shipper to give a written notice of loss as a condition precedent to the enforcement of a cause of action will be upheld by the courts without any consideration to support the same. Crow v. Railroad, 57 Mo. App. 135; Freeman and Hinsen v. Railroad, 118 Mo. App. 526.

— Eon. John G. Parle, Judge. (1) The sole cause of the accident was the negligence of Jefferson, a fellow-servant with plaintiff, in failing to properly adjust the sling. And there was no evidence that Jefferson was not competent. Bannon v. Sanders, 68 111. App. 167; Blazinski v. Perkins, 77 Wis. 12; Show v. Const. Co., 102 Mo. App. 666; Schott v. Bank, 49 App. Diy. (N. Y.) 503, 63 N. Y. Supp. 631; Roth y. Eccles, 28 Utah 456.

— Hon. Hugh G. Dabbs, Judge. The appeal should be dismissed for the reason that the record fails to show the judgment appealed from. There are numerous authorities in support of this contention. Nowhere in the record can be found the judgment appealed from.

— Hon. John P. \Butler, Judge. (1) The wilful abandonment and failure to support must concur, as they are used conjunctively and not disjunctively in the statute. (2) In a prosecution for wife abandonment there can be no conviction where the evidence for the prosecution shows that at the date of the information the wife, although abandoned by the defendant, was living upon his means. State v. Fuchs, 17 Mo. App. 458.

— Hon. Andrew F. Evans, Special Judge. (1) The title to the wire in question never passed from the interpleader to defendant. No order for this wire Avas ever given hy any one having authority to purchase it. There is no such order shoAvn in the correspondence. (2) To this point we invite the court’s earnest attention.

— Eon. Ohesley A. Mosmcm, Judge. (1) The gravamen of the charge was negligence. The plaintiff recovered, as shown by the instructions, on the ground of a nuisance. There is marked, distinction between causes of action based upon nuisance and those grounded in negligence. 1 Thompson on Negligence, sec. 1188; Dickinsen v. New York, 28 Hun 256; Casey v. Bridge Co., 114 Mo. App. 60.

— Eon. Alonso D. BurneSj Acting Judge. (1) The statute provides a complete method for the contest of an election held under art. Ill of chapter 22 of the Revised Statutes of 1899. R. S. 1899, secs. 3031, 7029, 7031, 7033; State ex rel. v. Smith, 104 Mo. 661; Montgomery v. Dormer, 181 Mo. 5; State ex rel. v. Evans, 184 Mo. 632; State v. Mcllhaney, 199 Mo. 67.

<p>1. CIRCUIT COURTS: Jackson County Divisions: Calling Judge: Electing Judge. The judge of any division of the circuit court of Jackson county may, when sick, etc., call a judge of another division to hold his court, and upon his failure to do so an election of a judge may he held.</p> <p>2. -: -: -: -: Record. Where the judge of one division calls another to hold his court the record order need not show the reason why he did so since the statutory cause would be presumed unless it appears otherwise from the record.</p> <p>3. A special judge elected by the bar, may be displaced by the judge of another division, or circuit, called in by the regular judge. And if the judge thus called in, tries á case and a motion for new trial is filed therein, such judge should pass upon the motion, even though it is continued to the next term.</p> <p>4. If, at term subsequent to the term when the motion is passed upon by the judge who tried the case, the regular judge should pass upon such motion, it could be an unauthorized act and an appeal at that term is too late and should be dismissed by the appellate court.</p>

— Eon. Louis Eoffman, Judge. (1) The plaintiff voluntarily chose a place that was glaringly and obviously dangerous. No man of ordinary caution and prudence would have selected such a place, or undertaken to perform the task in such a manner. Under such circumstances he assumed the risk of injury. His own carelessness directly contributed thereto, and precludes his recovery. Zentz v. .Chappell, 103 M'o. App. 208; Booth v. Air Line, 76 Mo.

— Hon. Haywood Scott, Judge. (1) The plaintiff could not recover on the theory that the contract had been rescinded prior to the institution of the suit. Wright v. Yetter, 54 Mb. App. 384; Poe v. Stockton, 39 Mo. App. 550; Walls v. Gates, 4 Mo. App. 5; Spangler v. Kite, 47 Mo. App. 231; Cahn v. Reid, 18 Mo. App. 115; Crumb v. Wright, 97 Mo. 13.

Glair Circuit Court. — Now. Chas. A. Denton, Judge. (1) There is no law authorizing a change of venue in matters of this kind. Change of venue is purely statutory and the statute must be strictly construed. State ex rel. v. Wofford, 119 Mo. 408; Cole v. Cole, 89 Mo. App. 233; State ex rel. v. Denton, 128 Mb. App. 304; State ex rel. v. Woodson, 86 Mo. App. 253; Morris v. Lane, 44 Mo. App. 1; Michael v. Schroeder, 4 Harris & Johnson, 227; Scott v. Speed, 25 N. W. 200.

— Hon. R. \B. Middlebroolc, Special Judge. (1) The action of the trial court in granting a new trial in this cause must be affirmed, even if tbe case bad been properly submitted to tbe jury under correct instructions, wbicb we say was not done.

— Hon. Berry G. Thurman, Judge. (1) Plaintiff gave authority to J. C. Clark to loan her money and the money was loaned through Tygard & Clark, agents. The plaintiff for many years, and through a long continued course of business, acquiesced in the loaning of her money. She wrote letters about it, and received letters, and interest was paid to her on the loan. She at all times knew that her money did not remain in the bank.

— Eon. E. E. Porterfield, Judge. (!) The instruction in the nature of a demurrer asked by the defendant at the close of plaintiff’s case should have been given. Travelers’ Assn. v. Tennent, 106 S. W. .1073; Duval v. Hunt, 34 Fla. 85. (2) Defendant’s instruction ip the nature of a demurrer at the close of all the evidence should have been given. Travelers’ Assn. v. Tennent, 106 S. W. 1073; Duval v. Hunt, 34 Fla. 85.

— Eon. Hermann Brumback, Judge. (1) The law does not permit such a change or amendment of parties as amounts to a substitution of an entirely new party plaintiff or defendant for the original plaintiff or defendant. Sears v. Loan Co., 56 Mo. Aiip. 122; Altheimer y. Teuscher, 47 Mo. App. 284; Clements y. Greenwell, 40 Mo. App. 594; Courtney v. Sheelhy, 38 Mo. App. 290; Thompson y. Allen, 86 Mo. 85; Hall y. School Dist., 36 Mo. App. 21.

— Hon. George W. Wanamalcer, Judge. (1) At the close of the evidence in this casé the court should have given plaintiff’s instruction that under the law and evidence they should find for the plaintiff. Harwood v. Diemer, 41 Mo. App. 48; Manufacturing Co. v. McCord, 65 Mo. App. 507. (2) We deem it unnecessary to cite authorities that the contract has to be construed by the court and not by the jury or attorneys, but we add a few. Lime & Cement Co. v. Fire Proofing Co., 77 Mo.

— Eon. Eugh Dabbs, Judge. (1) The demurrer to the evidence of plaintiff should have been sustained. (2) The plaintiff assumed the risks, he knew and appreciated the dangers, he was an experienced miner, the dangers arose from and were incident to, the ordinary conduct of the business. Wire Works v. Morgan, 95 S. W. 531; Wilson v. Railroad (Mich.), 108 N. W. 1021; Jennings v. Railroad (Wash.), 34 Pac. 937; Knight v. Donnelly, 110 S. W. 687; Sailer v. Shoe Co., 109 S. W. 794.

— Hon. Louis Hoffman, Judge. (1) Tbe secretary of a corporation is not an”officer of general power- or authority. Hardware Co. v. Grocer Co., 64 Mo. App. 681; Clothing Co. v. Iron Works, 51 Mb. App. 73. (2) Service not made at the company’s office but made upon the secretary, or secretary and treasurer, the president not being found, is not good. Electric Co. v. Corby, 61 Mo. App. 630; Land Co. v. Land Co., 187 Mo. 433.

— Eon. Louis Hoffman} Judge. (1) Now we recognize the well-settled rule that it is the province of the trial court to grant new trials where, in its opinion, the verdict is against the weight -of the evidence, and that it is the duty of such court to grant'a new trial when the verdict is manifestly or clearly wrong, or when it appears to be the result of passion, prejudice, or corruption on the’part of the jury. The books are full of authorities sustaining these propositions.

— Hon. Francis H. Trimble, Judge. (1) The statute requires that when a person is on trial for a criminal offense, if there is a conviction, the jury must by verdict assess his punishment. This section also requires the court to render judgment according to such verdict, which certainly means that the judgment shall be rendered as a punishment. R. S. 1899, secs. 2648, 2649, 2650, 2651, 2652. (2) The verdict is absolutely without fact to base it upon.

— Hon. Alonzo D. Bur nos, Judge. (1) It is held that mere delay is not proof of negligence in this class of cases. Wright v. Railroad, 118 Mo. App. 392. And where a party to a suit alleges negligence it devolves upon him to prove it. Milling Co. v. Transit Co., 122 Mo. 275.

— lion. Nat M. Shelton, Judge. (1) Where a depositor is indebted to a bank by bill, note or other form of indebtedness the bank may apply so much of the depositor’s funds to the payment of his matured indebtedness as is necessary to discharge it. Sparrow v. Bank, 103 Mo. App. 338; O’Grady v. Bank, 106 Mo. App. 336; Ehlerman v. Bank, 14 Mo. App. 591; Zane on Banking, sec. 130, p. 204; Bank v. Bank, 102 Mo. App. 357.

— Eon. William C. i Ellison■, Judge. (1) The judgment of the trial court will be reversed when there is an entire failure of evidence to show the guilt of the defendant as charged in the indictment. State v. Mahann, 138 Mo. 112; State v. Gordon, 199 Mo. 596. A verdict of guilty cannot rest upon conjecture or suspicion. State v. Gordon, 199 Mo. 596. If the conviction is without substantial evidence to support it the judgment will be reversed.

— Hon. Hugh Dabbs, Judge. (1) Section 1547, Revised Statutes 1899, provides that “In all civil actions or proceedings of any kind the party prevailing shall recover his costs against the other party except those cases in Avhich a different provision is made by law.” Hechct v. Heiman, 81 Mo. App. 370; R, S. 1889, sec. 2925; R. S. 1899, sec. 1552; Lamb v. Railley, 127 Mo. App.'729.

— Hon. Thos. A. Seehorn, Judge. (1) The declaration of law asked by plaintiff should have been given, because Pittsburg vitrified brick could be had at only one place of one manufacturer, and hence the designation of it was not contrary to law and the proper construction of the charter of Kansas City.

— Hon. William G. Ellison, Judge. (1') The court erred in sustaining the motion for new trial, on account of alleged error in said instructions numbers 2 and 3, for the reason that such instructions were correct when applied to sales of personal property. McQuillin’s Instructions in Civil Cases, sections 936, 937, 948; Jolliffe v. Collins, 21 Mo. 338; Chandler v. Lopus, 1 Smith’s Leading Cases, 188; Peers v. Davis, 29 Mo. 189.

— Hon. Ohesley A. Mosman, Judge. (1) The proceeding begun by this motion under section 985, was to obtain execution against a stockholder for unpaid stock. The court may award such process and control and supervise its execution. It cannot render a general personal judgment against the stockholder, which after lapse of term the court loses control of. Upon the record therefore, the judgment is erroneous.

— Eon. James E. S lover, Judge. (1) Tbe appellant being a corporation; tbe application and benefit certificates specifically, and. in terms, referring to and making the by-laws of tbe society a part and parcel of tbe contract; the society bad a right to enact by-laws; they are binding upon members and tbe members are presumed to Icuoav them. 16 Am. and Eng.

<p>Appeal from Jackson Circnit Court. — Hon. E. E. Porterfield, Judge.</p> <p>(1) Tbe peremptory instruction asked by defendant should have been- given. Roenfeldt v. Railway, 180 Mo. 554; Boring v. Railway, 194 Mo. 541; Markowitz v. Railway, 186 Mo. 350; Hebeler v. Railway, 112 S. W. 34; Cole v. Railway, 121 Mo. App. 605; Barris v. Transit Co., 102 Mo.. App. 87; Fanning v. Transit Co., 103 Mo. App. 151; Ross v. Railway, 113 Mo. App. 600; Moore v. Railway, 176 Mo. 528; Grout v. Railway, 125 Mo. App. 552; Zalotuchin v. Railway, 127 M'o. App. 577. (2) The court erred in giving instruction number 4 for the plaintiff. Roenfeldt v. Railway, 180 M'o. 554; Peterson v. Railway, 111 S. W. 37. (3) The court erred in giving instruction number 3 for plaintiff. Grout v. Railway, 125 Mo. App. 552; Zalotuchin v. Railway, 127 Mo. App. 577; Ross v. Railway, 113 Mo. App. 600; Moore v. Railway, 176 Mo. 528; Oole v. Railway, 121 Mo. App. 605. (4) The verdict was excessive. Daherty v. Kansas City, 105 Mo. App. 173; Haynes v. Trenton, 108 Mo. 123; Stoetzele v. Swearigen, 90 M'o. App. 588.</p> <p>(1) The plaintiff was not negligent as a matter of a law in going upon the track. Linder v. Transit Co., 103 Mo. App. 574. (2) Immaterial whether or not plaintiff was negligent in going upon the track, as case was submitted to the jury upon the theory of the “Humanitarian doctrine.” Johnson v. Railway, 203 Mo. 381; Cole v. Railway, 121 Mo. App. 605; White v. Railroad, 202 Mo. 539. (3) Case was properly submitted to the jury upon the theory of the “humanitarian doctrine.” Richmond v. Railway, 123 Mo. App. 495; Kelley v. Railway, 101 Mo. 67; Deitring v. Transit Company, 109 Mo. App. 524; White v. Railroad, 202 Mo. 539; Schafstette v. Railroad, 175 Mo. 142; Jett v. Railroad, 178 Mo. 664; Barrie v. Transit Co., 119 Mo. App. 38; Morgan v. Railroad, 159 Mo. 262; Bensick v. Railroad, 125 Mo. App. 121; Klockenbrink v. Railroad, 81 Mo. App. 351; Baxter v. Transit Co., 198 Mo. 1; Oates v. Railway, 168 Mo. 535. (4) In passing upon defendant’s demurrer the court must consider not only plaintiff’s evidence, but all of the evidence in the case, including defendant’s testimony. Klockenbrink v. Railroad, 172 M'o. 678; McPherson v. Railroad, 97 Mo. 253; Eswin v. Railroad, 96 Mo. 294; Jennings v. Railroad, 112 Mo. 268. (5) The court did not err in giving plaintiff’s instruction number 4. Cobb v. Railway, 149 Mo. 135; Fitzgerald v. Barker, 96 Mo. 661; Blanton v. Hold, 109 Mo. 64; O’Mara y. Transit Co., 102 Mo. App. 203; Fillingliam v. Transit Co., 102 Mo. App. 584; Berkson v. Railway, 144 M'o. 211; Swanson v. Sedalia, 89 M'o. App. 121; State ex rel. v. Hope, 102 Mo. 426; Aston y. Transit Co., 105 Mo. App. 226. (6) The court did not err in giving plaintiff’s instruction number-3. Linder v. Transit Co., 103 Mo. App. 574; White y. Railroad, 202 Mo. 539; Johnson y. Railway, 203 Mo. 381; Wise v. Transit Co., 198 Mo. 558; Degel v. Transit Co., 101 Mo. App. 56; Berkson v. Railway, 144 M'o. 211; Hall v. Railroad, 124 Mo. App. 661. (7) The verdict was not excessive. McNamara y. Transit Co., 1Ó6 Mo. App. 349; Stotler v. Railroad, 200 Mo. 107; Wills y. Railroad, 44 Mo. App. 51%</p>

— Hon. Walter A. Powell, Judge. (1) The doctrine contended for here is that, if an officer of the subordinate lodge, or the subordinate lodge itself, pays assessments for a member, at his request, either as a loan or a gift, such member, if the grand lodge officers have knowledge of such a transaction, is thereafter privileged to pay or not to pay, as he pleases, and if he does not pay, no suspension results.

— Hon. Henry M. Ramey, Judge. (1) A suit may be maintained on a note or bond against the sureties alone without joining the principal. Manny y. Surety Co., 103 Mo. App. 716. (2) A sureties’ undertaking must be construed' like any other contract, according -to the intention of the parti®. Lighting Co. y. Hobart, 98 Mo. App. 227; Fairbanks Co. y. Bonding & Trust Co., 97 Mo. App. 205; North St. Louis, etc., v. Obert, 169 Mo. 507.

— Eon. E. W. Hinton, Special Judge. (1) A reply is necessary -where answer sets up new matter. 98 Mo. 126; R. S. 1899, sec. 608. (2) The appellate courts in this State have universally held that when answer sets up good defense and no reply is filed thereto, the defendant is entitled to a judgment. 47 Mo. 513.

— Hon. Francis H. Trimble, Judge. (1) The court erred in finding for respondent. Under tbe record the judgment should have been for appellant. The answer of respondent being a general denial, the judgment was for the wrong party. Sec. 15, Ordinance 22, Chillicothe; Sec. 12, Ordinance 209, Chillicothe; Vieths v. Planet, etc., Co., 64 Mo. App. 207.

— Hon. James H. Slover, Judge. (1) The trial court erred in refusing to give defendant’s instruction in the nature of a demurrer to plaintiff’s evidence at the close 'of plaintiff’s case. (2) In giving to the jury plaintiff’s instructions 1, 2, 3, 4, 5, and 6, and each of them. Bunn v. Johnson, 77 Mo. App. 596; Overstreet v. Moser, 88 Mo. App. 79.

— Hon. James H. Slover, Judge. (1) Plaintiff’s testimony not only fails to affirmatively show malice and want of probable cause, but affirmatively shows probable cause. Van Sickle v. Brown, 68 Mo. 637; Wise v. M’cNichols, 63 Mo. App. 144; Christian y. Hanna, 58 Mo. App. 46; Grant v. Reinhart, 33 Mo. App. 80; Osborne v. Moore, 12 La. Ann. 714; Mosley v. Yearwood, 48 La.

— Hon. Walter A. Powell, Judge. (1) The court erred - in refusing defendant’s instruction two, directing a verdict for defendant at the close of ail the evidence. Ratliff v. Railroad, 110 S. W. 6.07, 118 Mo. App. 644; Gashweiler v. Railroad, 83 M'o. 112; Holzclaw v. Duff, 27 Mo. 392..

— Now. John P. Butler, Judge. (1) The verdict as returned by the jury is conclusive, and the same cannot be enlarged upon, or explained by extraneous evidence. Hancock v: Bucklev, 18 Mo. App 467. (2) The verdict was insufficient to support judgment for any amount in favor of Fulcher and the justice in rendering judgment for $17, substituted his own finding for that of the jury. Ryors v. Pryor, 31 Mo. App. 562; Dyer v., Combs, 65 Mo. App. 152; Calkins v. Bank, 99 Mo. App. 513.

— Eon. D. E. Blair, Judge. (1) It. was the duty of the plaintiff in approaching the crossing in question, to use every possible precaution necessary for his own protection. Hayden v. Railroad, .124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Hook v. Railroad, 162 Mo. 569; Schmidt v. Railroad, 191 Mo. 228; Sanguinette v. Railroad, 196 Mo. 466;'Stotler v. Railroad, 204 M'o. 619.

— Eon. Ghesley A. Mosman, Judge. (1) The plaintiff’s case, both upon the pleadings and upon his evidence, is founded on negligence, and the burden of proof is on him throughout the trial to prove it. Dowell v. Guthrie, 116 Mo. 654; Ryan v. Mc-Cully, 123 Mo. 636; Glasscock v. Dry Goods Co., 106 Mo. App. 663; Yarnell v. Railway, 113 Mo. 580. (2) And it is a question of law whether the evidence tends to prove such negligence in this case.

— Eon. Nat. M. Shelton, Judge. (1) It was immaterial whether the culvert was put in by ordinance or not. The petition alleges that the city permitted it to be erected, it stood by, and permitted it to be erected on property that it had the exclusive care and control of, and its officers and agents had knowledge of the nuisance. The city by its mayor and council is given the exclusive care and control of its streets. E. S. 1899, sec. 5858. Laws of Missouri, 1901, p. 63.

Howard Oray} Judge. (1) The general ordinance, together with the contract made time of the essence of the contract, the same’ as though it was written in the contract. This is settled law in this State. Springfield v. Divi., 80 Mo. App. 574; Herman y. Gillian, 171 Mo. 267 1. c; Paying Go. v. Munn, 185 Mo. 569 1. c.; Springfield v. Schmook, 12 Mo. App. 489.

George W. Wanamaker, Judge. (1) Where the evidence introduced by the plaintiff wholly fails to establish his right of action it is the duty of the court to thereupon direct the jury to find a verdict for defendants. Breen v. Cooperage Co., 50 Mo. App. 216; Smith v. Railroad, 37 Mo. 292; Baker v. Schneider, 85 Mo. App. 412; Epperson* v. Postal Tel. Co., 155 Mo. 383.

— No». George W. yVanamalcer, Judge. (1) If these two instructions are not directly in conflict with each other then I fail to understand the meaning of the English language.

— Hon. Alex. H. Waller, Judge. (1) The return of service was insufficient because it does not show that the officer to whom the papers were delivered was in charge “of the principal office” of defendant, as required by the law governing. town mutual companies. Haley v. Railroad, 80 Mo. 112; Thomasson v. Insurance Co., 81 S. W. 911; Gamasche v. Smythe, 60 Mo. App. 161; Williams v. Dittenhoefer, 86 S. W. 242; Vickery v. Railway, 93 Mo.

— Eon. Francis E. Trimble, Judge. (1) Courts will not enforce a contract if it appears to be unconscionable or unjust, even though signed by the party sought to be charged with full knowledge. Bond et al. v. Sanford, 114 S. W. 570; Blain v. Knapp & Co., 140 MO'. 241; Walker v. Automobile Co., 124 Mo. App. 628. (2) The paper writing, “Exhibit A,” at most is a mere admission and, being such it is open to correction, impeachment and qualification.

— Eon. E. E. Porterfield, Judge. (1) The court erred in not sustaining the demurrer to the evidence asked by appellant. Hahlo v. Mayer, 102 Mo. 439; Bissell v. Warde, 129 Mo. 439, 30 Cyc. 394. (2) As Beedy did not hold himself out as a partner, as before pointed out, the only question remaining is whether he was in fact a partner.

— Eon. Francis E. Trimble, Judge. (1) The court erred in overruling defendant’s demurrer. The plaintiff having attempted to set out the facts in its petition should have set them all out. Under the form of the pleading adopted in the plaintiffs’ petition the omission of material facts would have been ground for a general demurrer, or possibly might have taken advantage of after judgment, and defendants’ special demurrer ought to have been sustained. Carthage v. Bagley, 73 Mo.

Appeal fnom Jackson Circuit Court. — Hon. John Q. Parle, Judge. (1) The court erred in refusing to submit the case to the jury and in giving, at the close of plaintiff’s evidence, the instructions in the nature of a demurrer to the evidence. (2) Whether or not Oalhoon acted as the agent of defendants, in this transaction, was a question for the jury. Middleton v. Railway, 62 Mo. 579; Hull v. Jones, 69 Mo. 587; Hoppe v. Saylor, 53 M'o. App. 4; Werth v. Ollis, 61 Mo.

— Now. Henry M. Barney, Judge. (1) The plaintiff should have been nonsuited. His case is utterly without merit, and it is so apparently a manufactured case that it cannot excite favorable consideration. Plaintiff committed perjury upon the first and second trial. Plaintiff’s perjury forfeits his verdict. R. S. 1899, sec. 800.

— Hon. James H. glover, Judge. (1) Defendant Epperson’s two instructions in the nature of demurrers to plaintiff’s evidence at the close of plaintiff’s case and at the close of all the testimony should have been given. (2) Plaintiff’s first instruction singles out one feature of partnership, viz., profit sharing, and then directs the jury to infer from that a prima-facie partnership. This was clear error for the following reasons.

— Eon. James E. Slover, Judge. (1) Defendant’s demurrer, at close of plaintiff’s case, should have been sustained, because it clearly appeared from the evidence that defendant’s agent in uttering the words alleged to have been uttered was acting wholly outside of the scope of his employment, and the malice, if any, was his. Milton v. Railroad, 193 Mo. 58; Gas Light Go. v. Lansden, 172 U. S. 534; Singer Mfg. Co. v. Taylor, 43 So. 210.

— Now. Hugh Ddbls, Judge. (1) The plaintiff in this case could prove its cause of action, and did prove its cause of action without it be'ing necessary, or without it actually showing that any drawing whatever took place, and under such circumstances it is entitled to maintain its action. Michael v. Bacon, 49 Mo. 474; McDermott v. Sedgwick, 140 Mo. 182; St. L. Agr’l & Mech. Ass’n v. Delano, 108 Mo. 220.

— Hon. James H. Slover, Judge. (1) The court erred in overruling the defendant’s motion to strike out the parts of the reply pertaining to the special pleas and in admitting evidence to sustain such pleas. Hamilton v. Wright’s Admr., 28 Mo. 199, 24 Cyc., 1057; Boone v. Stover, 66 Mo. 430; Beiger v. Wells, 110 App. 166; Ream v. Kolkschneider, 21 Mo. App. 538; Hughes v. Hord, 50 Mo. 350; L’Hussier v. Zullee, 24 Mo. 13; Shoemaker v. Crawford, 82 Mo.

— Hon. William H. Martin, Judge. (1) In this case the amended petition as refiled June 10, 1907, haying alleged that W. J. Atkinson executed the note and deed of trust, given to secure its payment and which are referred to, in, and filed with, said petition to enforce the payment of which note and to foreclose said deed of trust, this suit was instituted, and that said W. J. Atkinson died prior to the institution of suit thereon; then, under the law, the administrator of…

— Eon. A. E. Spencer, Special Judge. Instruction numbered 1 in tbe nature of a demurrer at tbe close of tbe entire case, should have been given because: (1) Tbe petition does not allege that after tbe perpetration of tbe alleged fraud in 1899, and up to tbe date of tbe discovery of sucb fraud, tbe defendant bas committed any act or done anything which was intended or calculated to exclude suspicion and prevent inquiry by plaintiffs as to the alleged fraud.

— Hon. William 0. Ellison, Judge. (1) The session of the county court on July 18, 1906, when the order for the election was made, was not a legal meeting. County courts are courts of record; their acts and proceedings can only be known by their record, and cannot be proven by parol. Dennison v. St. L. Co:, 33 Mo. 168; Maupin v. Franklin Co., 67 Mo. 327; Eiley v. Pettis Co., 96 Mo. 318; Johnson Co. y. Wood, 84 Mo. 489; State ex rel. y. Baldwin, 109 Mo. App. 579.

— Eon. Nat. M. Shelton, Judge. (1) The court erred in admitting evidence as to how far engines of the defendant had thrown sparks upon other occasions without limiting the inquiry to the same class of engines that were in use upon the tracks of the defendant near the poultry house just prior to the fire on the 16th of September, 1907, and without limiting the inquiries to the same conditions of use as those of the operations of the engines at the time and place aforesaid.

— Hon. George W. Wanmnaher, Judge. (1) The notice waived by the administrators was given just four days before the two years statute of limitations would expire; there was nothing in the notice to indicate when the demand would be “exhibited to the court for allowance” and in fact there was no court to which it could have been' exhibited; hence the original demand was barred before the demand was presented for allowance. R. S. 1899, secs. 188, 189,197; Bank v. Bur-gin, 73 Mo.

— Eon. Eugh Dabbs, Judge. (1) The demurrer of defendants to the evidence should have been sustained as to both defendants, as under the pleading* and evidence the respondents were not entitled to recover. (2) It was not true as alleged, that appellant had no lease at the time the contract was made with respondents. 1 Jones on Real Property, sec. 620, and note.

■ Appeal from Jackson Circuit Court. — Hon. Walter A. Powell, Judge. (1) At the conclusion of the plaintiffs’ evidence and at the conclusion of all of the evidence the defendant asked a peremptory instruction. This instruction the court should have given.

— Hon. E. E. Porterfield, Judge. (1) Tlie taxbills sued on in this case were not issued in accordance with the requirements of tbe charter. Section 6, article IX, Charter of Kansas City. (2) The descriptions in the taxbills. sued on do not sufficiently identify the land sought to be charged.

— Hon. William H. Martin, Judge. (1) The court erred in compelling the wife of the defendant to testify against him. R. S. 1899, sec. 2637. (2) There has been no change of the common law rule in this State by legislative enactment by which the wife is made a competent witness against the husband, and against his consent in a criminal prosecution. State v. Willis, 119 Mo. 485.

— Hon. Nat. M. Shelton, Judge. (1) Nathaniel Broyles died single, intestate and without issue. Relators, as next of Lin, were entitled to administer. Section 7 of the statute, fixes the priority, and the probate court may be compelled by mandamus to appoint them. It is a ministerial, not a judicial act. Flick y. Schenk, 212 M'o. 279; Grover v. Fowler, 108 Mo. 470; Mitchell v. Guinotte, 113 Mo. App. 399; State ex rel. v. Reynolds, 121 Mo.

— Eon. William 0. Ellison, Judge. (1) The letters introduced in evidence, bearing date of June 10th, and June 21, 1905, and marked Exhibits “E” and “F” were wholly incompetent and the court erred in permitting them to be read to the jury. (2) The contract of June 22, 1905, or rather the order signed by defendants, for the new engine, embraced all prior negotiations and contained all of the contract. McOlurg v. Whitney, 82 Mo. App. 625; Harrington v. Brockman Com. Co., 107 Mo.

— Hon. Berry G. Thurman, Judge. (1) Section 2258 of the Revised Statutes of the State of Missouri for 1899, is the statute under which this prosecution was had. (2) Section 2262 of the Revised Statutes of Missouri for 1899, requires the jury under the direction of the court, to determine the law and the fact. (3) Under this section of the statute the court may instruct the jury as to the law of libel or slander in an advisory, but not in a mandatory way.

— Hon. Wm. D. Davis, Judge. (1) The plea in abatement should have been sustained. There was no answer to it. The facts stated in the plea stood admitted. Rodney v. Gibbs, 184 Mo. 1; Walter Commission Co. v. Gilliland, 98 Mo. App. 584; Coberly v. Coberly, 1S9 Mo. 9; Courtney v. Fidelity & Mutual Aid Ass’n, 120 Mo. App. 117.

— No». John 0-. Park, Judge. (1) The court erred in giving instruction number one, of its own motion. (2) Our contention is that there is nothing in the record, either direct or circumstantial, in the slightest degree, tending to prove that the defendant, Barmon, did not believe that the plaintiff was guilty of having received stolen property, knowing the same to have been stolen.

— Eon. William G. Ellison, Judge. (1) Where a mortgage is taken for a portion of the unpaid purchase price, the law does not imply a vendor’s lien to secure the payment of the remainder of the purchase price. Delossus v. Poston, 19 M'o. 428-429; Emison v. Whittlesey, 55 Mo. 259; Boyer v. Austin, 75 Mo. 82; Adams v. Buchanan, 49 Mo. 64; Winer v. Investment Co., 125 Mo. 543; Brisco v. Callahan, 77 Mo. 134; Nixon v. Knollenberg, 92 Mo.

— Hon. Henry M. Barney, Judge. . (1) A reading of the record will disclose that Jones, the plaintiff, entered into a conspiracy with Leach surely, and Sportsman probably, to have them run a fake footrace and thereby defraud defendant, Scott, of his money. (2) The court erred in giving plaintiff instruction number one. (3) The court erred in giving instruction number 2.

— Eon. Hugh Dabbs, Judge. (1) From the facts, it would seem that the respondents should he held to their obligation. (2) If by “no consideration” is meant that no consideration passed from Cunningham, the payee, it is not necessary that consideration proceed from the payee. The note served its purpose. It obtained the money, which on its face it promised to repay, and it is. neither good morals nor good law to hold that they who procured the money should not pay it back.

— Eon. Eenry M. Ramey, Judge. (1) The court instructs the jury that the burden of proof is on the plaintiff to establish his case by the preponderance of the evidence, and by the preponderance of the evidence is meant the greater weight of the credible testimony. (2) Plaintiff in his petition charges specific acts of negligence.

— Eon. J. P. Butler, Judge. (1) In the first place there is not one word of evidence in support of the allegation that the car was delayed in transit. (2) The consignment being made to the owner of the goods and he being advised of the time ordinarily required to make the run^ it was his duty to be on hand when the car arrived, and to unload it within a reasonable time thereafter. Hutchinson, Carriers, sec. 886; Freeman v. Railroad, 118 Mo.

— Hon. Alonso D. Burnes, Judge. (1) Mandamus is proper to compel the judges of a county court to hear and determine relators’ petition for dramshop and to require them to grant the license. Bean v. Barton Co. Court, 33 Mo. App. 644; State ex rel. y. Nodaway Co. Court, 80 Mo. 601; Sheridan v. Fleming, 93 Mo. 322. (T) Before the appellants could compel the issuance of a license, they must put themselves within the terms of section 2993, Revised Statutes 1899.

— Now. E. E. Porterfield, Judge. (1) The engine room was sufficiently lighted. Defendant was not guilty of any negligence. The demurrer to the evidence should have been sustained. Jackson v. Elevator Co., 209 Mo. 506; Holmes v. Brandenbaugh, 172 Mo. 53.

— Eon. Alexander E. Waller, Judge. (1) The court erred in not sustaining a demurrer to the evidence because it clearly appeared (1) that defendant had no knowledge of the subsale to Rumans under a guarantee nor of the delay in shipping.

— No». Ohesley A. M osman, Judge. (1) If Mrs. Landers accepted the promise of defendant to pay her $1,100 in settlement of her case, that constituted an accord and satisfaction of her claim, without the performance of the promise. Railway v. Harriet, 15 S. W. 556; 2 Chitty, Cont. (11 Am. Ed.), 1124; Bennett v. Hill, 14 R. I. 322; Smith v. Elrod, 24 So. 994; Goodrich v. Hanley, 29 Conn. 620; Jennings v. Ft.

— Hon. Joshua W. Alexander, Judge. (1) The order that alias summons issue as to plaintiff in error was an abandonment of any service theretofore had and inasmuch as the alias summons was not served, the judgment was rendered without service and is void. 20 Am. and Eng. Ency. of PL and Pr. 1180 and note; Finley v. Richards, 1 Blck. (Ind.) 487.