Volume 137 — Missouri Appeal Reports

— Hon. John G. Parle, Judge. (1) The rule in suits for conversion of property that allowance of interest is discretionary with the jury has no application to actions on attachment bonds on account of the detention of an interpleader’s money by the attachment proceedings, in which case interest is the proper measure of damages. Padley v. Catterlin, 64 Mo. App. 647; Goodman v. Railway, 71 Mo. App. 464; York v. Bank, 105 Mo. App. 139.

from Carroll Circuit Court. — Hon. John P. Butler, Judge. (1) The peremptory instruction requested by defendant at the close of all the evidence in the case should have been given for the following reasons: First: In actions of fraud and deceit, to entitle plaintiff to recover, it is incumbent on him to show that he suffered actual damage. In the case at bar, plaintiff failed to show any actual damage, hence he made no case, and the demurrer should have been sustained.

— Hon Hugh Dabbs, Judge. (1) The honest mistake in naming the owner in the lien papers as James D. James instead of John D. James, his correct name, does not invalidate the lien, particularly when said James has been served with the notice of lien and summons, personally, and personally appeared and defended against the lien, and no one was misled or injured by such mistake.

— Eon. Francis H. Trimble, Judge. (1) The second amended information on which, the defendant was convicted is fatally defective, in this,that there is no averment therein, that the. l'8th day of August, 1908, was the first day of the week commonly called Sunday. (2) The defendant was charged with having shaved Eobert Bates, and this is based on affidavit of prosecuting witness Blackwell. Eight parties found afterward made affidavit that defendant did not shave Bates.

— Hon. John G. Park, Judge. (1) The court committed error in not permitting defendant to put in evidence the contract under which the horse was shipped. Oi’Bryan v. Kinney, 74 Mo. 125; Railroad v. Cleary, 77 Mo. 634; Rice v. Railroad, 63 Mo. 314; Kellerman v. Railway, 136 Mo. 177.(2) Delivery is completed by the acceptance by the owner or consignee of the goods before they are unloaded.

— Eon. John Gr. Park, Judge. (1) The plaintiff made a case sufficient to go to the jury, even if the defendant was not a participant in the particular meeting at which the minutes showing the adoption of the contract in question were approved. Ferris v. Thaw, 5 Mo. App. 279; Ferris v. Thaw, 72 M'o. 446; Richmond v. Judy, 6 Mo. App. 465; Insurance Co. v. Burkett, 72 Mo. App. 1; Heath v. Goslin, 80 Mo. 310; Riffe v. Proctor, 99 Mo. App. 601.

— Eon. John G. Park, Judge. (1) Tbe court erred in refusing tbe plaintiff a divorce. (2) Tbe plaintiff made tbe necessary proof to obtain bis divorce and bad and bas a legal right to it. The court bad no discretion to deny it. Grenzebach v. Grenzebach, 118 Mo. App. 280; Wald v. Wald, 119 Mo. App. 341; Wares v. Wares, 122 Mo. App. 129. (1) The court committed no error in denying the divorce prayed for by appellant.

— Hon. John P. Butler, Judge. (1) As to the service the facts are stated in our statement of facts. The service is purely constructive, having been attempted to be made on the superintendent of insurance appointed by law to receive and accept service on behalf of insurance companies doing business in this State. Such service is not what is commonly known as personal service, but is constructive, and must be technically correct in order to give the court jurisdiction.

— Eon. John G. Park, Judge. (1) The court erred in refusing plaintiff’s instruction A, on the right of the plaintiff and of the defendant to that part of Ninth street covered by defendant’s tracks, and the duty of defendant’s motorman in avoiding the collision. Deitring v. Transit Co., 109 Mr. App. 524; Luider v. Transit Co., 103 Mo. App. 574; Zander v. Transit Co., 206 Mo. 447. (2) The court erred in refusing plaintiff’s instruction B, on contributory negligence.

— Hon. Argus Ooao, Judge. Plaintiff’s petition stated a good cause of action. Tlie contract was not within the Statute of Frauds; the description was sufficient; parol evidence was admissible to identify the land.

<p>Appeal from Jackson Circuit Court. — Hon. Sanford B. Ladd, Special Judge.</p>

<p>1. EASEMENTS: Owner’s Rights: Improvements: Damages. The owner of land has the right to remove improvements and erect new ones for his legitimate purposes, and to create a liability therefor there must exist some abuse of his lawful right to use his property as he would. An injury resulting alone from lawful use is damnum absque injuria.</p> <p>2. WATER AND WATERCOURSES: Surface Water: Rights and Duties: Improvements. Surface water is a common enemy which every owner must fight as best he may and when one of the natural and incidental results of improvements is to divert surface water to a neighbor’s injury such consequence is damnum absque injuria since the proprietor may lawfully give the water a new direction. The owner of the servient estate has no right to demand protection from his neighbor, but must keep diverted surface water from his own land.</p>

— Hon. Hoioard Gray, Judge. (1) The information on file in this case and under which the defendant was convicted is under section 3018, Revised Statutes 1899, leveled at dramshop keepers to prohibit gaming and gaming tables, etc. The language used in the information is so indefinite and uncertain, and the several charges óf the different offenses being so repugnant to each other, it becomes ineffective as a charge of any offense under the law against the defendant, and is an…

<p>Appeal from Vernon Circuit Court. — Ron. 'Berry Or. Thurman, Judge.</p> <p>(1) The case at bar is an attempt at judgment by confession under section 4006, Revised Statutes 1899. Chamberlin v. Mining Co., 20 Mo. 96; Frause v. Owens, 25 Mo. 334; Loth v. Faconesowich, 22 Mo. App. 68; Burr & Co. v. Mathers & Co., 51 Mo. App. 475.</p> <p>(1) The defendant, confessed judgment before the justice, and no appeal lies from such confession of judgment. Wade v. Swope, 107 Mo. App. 377; R. S. 1899, secs. 4059, 4005, 4006. (2) The defendant was duly served with process, the court had jurisdiction in the premises, and before the day set for the trial, he appeared in open court, which in case of a justice of the peace is always open, and confessed judgment. R. S. 1899, sec. 3835; Simpson v. Watson, 15 Mo. App. 425; Sullivan v. Construction Co., 86 Mo. App. 155; How v. Dorscheimer, 31 Mo. 349.</p>

— Hon. James H. Blover, Judge. (1) The amendment of the petition or statement was a changing of the issues in the circuit court from those upon which suit was originally brought. This proposition is elemental. Powell y. Shipps, 85 Mo. App. 467. (2) The only disputed fact is as to the payment of the fifth $7.50. Four payments are admitted. Defendants claim they made five. Ray states positively that he paid Seaver. Seaver does not deny it.

— Eon. John P. Butler, Judge. (1) The decree in the divorce suit was not appealed from and is final and conclusive between the parties as to all matters adjudicated by it, one of which was that the appellant was the injured and innocent party and entitled to the custody of the two children he had in his charge and under his control.

<p>Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.</p> <p>(1) Payment of the judgment to the clerk did not satisfy the judgment. 7 Cyc. 224; Seymour v. Haines, 104-111. 562; Deirant v. Gabby, 2 Mete. (Ky.) 91; Chinn v. Mitchell, 2 Mete. (Ky.) 192; Henry y. Benlisa, 37 Fla. 609, 620; Matusevitz v. Hughes, 26 Mont. 218; Lewis y. Cockrell, 31 Mo. App. 476; Lewis v. Kean, 102 Mich. 605; Baker y. Hunt, 1 Wend. 103; Milburn-Stoddard Co. v. Stickney, 14 N. D. 282; Tompkins v. Wood-ford, 1 Pa. St. 156; Baer v. Kistler, 4 Rawle 364; Mazycky. McEwen, 2'Bailey (S. C.) 28; Whitesboro v. Diamond (Tex.), 75 S. W. 540; Hays v. Boyer, 59 Ind. 341; Railway y. Walker, 93 Tex. 611. (2) The lien of Prince on the judgment was personal”to him and could not be*, satisfied by his associate counsel without his authority. Jackson v. Clopton, 66 Ala. 29; People y. Pack, 115 Mich. 669; Heavenrich y. Kelley, 111 Mich. 163; Smith y. Goode, 29 Ga. 185. (3) The remedy given an attorney by our law against a defendant who has paid a judgment except his fees, is by motion for execution upon the judgment pro temto. Young v. Renshaw, 102 Mo. App. 173; Curtis v. Railway, 118 Mo. App. 341; Wait v. Railway, 204 Mo. 491. _</p> <p>(1) Appellant was entitled to one-half of the judgment recovered. He employed Boyle, Guthrie & Smith to help him collect the judgment. This employment carried with it authority to receive payment of the judgment. Since Boyle, Guthrie & Smith had this authority from appellant, appellant cannotnowobjectbecause the judgment was paid to Boyle, Guthrie & Smith. R. S. 1899, sec. 3731, 3 Am. and Eng. Enc. of Law, 365, note. (2) Appellant authorized the clerk to receive this money and directed the clerk to hold the money for him. He urged respondent to pay the money when he knew that respondent was intending to pay it to the clerk for him; and after the money had been paid to the clerk and by him in turn paid to Boyle, Guthrie & Smith, he ratified the transaction by endeavoring to recover it from Boyle, Guthrie & Smith. The clerk was therefore appellant’s agent, and payment to the clerk was payment to appellant. Berrel v. Davis, 47 Mo. 407; Simon v. Brown, 38 Mich. 552; Quinn v. Dresbach, 75 Cal. 159. (3) Appellant by all of his actions induced respondent to pay the money to the clerk. He is therefore estopped to deny that the clerk was his agent. Hirst v. Whitney, 47 Ga. 366. (4) The attorneys’ lien law is not designed to protect one co-counsel agent payment of judgment to another co-counsel. • In the case of such, payment the lien follows the fund into the hands of the co-counsel, and the remedy of counsel claiming a lien is an order on the counsel to whom the money was paid to show cause why the money should not be paid over to him. Smith v. Goode, 29 Ga. 185.</p>

— Hon. Walter A. Powell, Judge. It is well settled that the allowance of temporary alimony is not a matter of right, and where the plaintiff who asks for temporary alimony has sufficient property in her own right to conduct the action and to maintain herself during its pendency, she is not entitled to temporary alimony. Adams v. Adams, 49 Mo. App. 592; McClosky v. McClosky, 68 Mo. App. 199; Penningroth v. Penningroth, 71 Mo. App. 438; 2 Am. and Eng.

— Now. Thomas J. Seehorn, Judge. (1) The only question in the case is, did the insurance policy sued upon, insure the property which was destroyed. (2) The defendant knew of the character of the business conducted by the insured and its surroundings, also the kind of power with'which the plant was operated and where and by what the power was generated. Joyce on Insurance, sec. 497; Rissler v. Insurance Co., 150 Mo. 836; Williams v. Insurance Co., 73 Mo.

— Hon. E. E. Porterfield, Judge. „ (1) Courts will not receive the affidavits of jurors to impeach their verdict or show their misconduct. Pratte v. Coffman, 33 Mo. 72; Sawyer v. Railroad, 37 Mo. 263; State v. Underwood, 57 Mo. 52; State v. Fox, 79 Mo. 112; State v. Rush, 95 Mo. 199; State v. Robinson, 117 Mo. 666; Devoy v. Transit Co., 192 M'o. 218; Green v. Railway, 211 Mo. 18; State v. Gage, 52 Mo. App. 470; Jobes y. Weaver, 77 Mo. App. 665; Meisch v. Sippy, 102 Mo.

<p>Appeal from Dallas Circuit Court. — No». Argus Cox, Judge.</p> <p>(1) The information is sufficient. State v. Searcy, 39 Mo. App. 393; State v. Hutton, 39 Mo. App. 410; State v. Prather, 41 Mo. App. 451; State v. Handler, 178 Mo. 38; E. S. 1899, sec. 3032. (2) The constitutionality of the Local Option Law has been many times sustained by this court. State v. Handler, 178 Mo. 38; State v. Dugan, 110 Mo. 138; State v. Watts, 111 Mo. 553; State v. Searcy, 111 Mo. 236. (3) A certified copy of the result of a local option election as spread upon the records of the county court, and proof of the subsequent publication of the result in compliance with the statute, sufficiently shows that the local option law is in force in the county. State v. Searcy, 46 Mo. App. 421; State v. Searcy, 111 Mo. 236. (4) The notice of election must be given for twenty-eight days under the local option law, which notice, if in a weekly paper, requires five insertions, and the election can take place on any of the ten days next following the fifth insertion. State v. Dobbins, 116 Mo. App. 29. (5) The prescribed publication of the result of a local option election is not required to be proved in any particular form or manner. It may be established by the oral testimony of the publisher or of any competent witness. State v. Baker, 36 Mo. App. 58.</p>

— Eon. John P. Butler, Judge. (1) The former suit was not res adjudicata as to the dismissed item. It was not the same subject-matter. While in the former suit recovery was had for money had and received, this is a suit on account. It will not be res adjudicata merely because it might have been litigated in said former suit. Garland v. Smith, 164 Mo. 22; Lincoln Trust Co. v. Nathan, 122 Mo. App. 327; Barkhoefer v. Barkhoefer, 93 Mo. App. 381; Hingston v. Montgomery, 121 Mo.

Louis City Circuit Court. — Hon. Oteo. H. Shields, Judge. The plaintiff being an employee of the defendant and in no way a beneficiary of its trust fund, the defendant corporation, though a charitable one, was liable to the plaintiff like any one else for its negligence. Adams v. Hospital, 99 S. W. 454, 122 Mo. App. 679; Bruce v. Methodist Church, T47 Mich. 250; Powers v. Hospital, 47 C. C. A. 122, 65 L. R. A. 372.

— Hon. Jas. T. Neville, Judge. (1) The same cause of action, and no other, that was tried before the justice, shall be tried before the appellate court upon.the appeal. R. S. 1899, sec. 4077; Evans v. Railroad, 67 Mo. App. 255.

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. (1) Section -5222, Revised Statutes 1899, as amended in 1905, does not preclude the skipper and carrier from entering into a contract at the time of tbe receipt of goods wliicb are destined to a point on a connecting line, limiting tbe duty and obligation of tbe carrier for transportation over its own route; and where tbe contract so provides tbe initial carrier cannot be beld for tbe negligence of tbe connecting…

Louis City Circuit Court . — Hon. Chas. Claflin Allen, Judge. Plaintiff’s demurrer to defendant’s evidence should have been sustained. There can be no assessment of damages on an injunction bond unless an injunction shall have been granted and dissolved. E. S. 1899, secs. 3630-3647; Keber v. Bank, 4 Mo. App. 195; Bank v. Bank, 4 Mo. App. 505; St. Louis v. Gas Light Co., 82 Mo-. 349; Baking Powder Co. v. Baking Powder Co., 82 Mo.

Louis Circuit Court. — Eon, Jesse A. McDonald, Judge. (T) After plaintiff, with full knowledge of tbe facts retains tbe fruits and proceeds of tbe acts of bis agent, be cannot repudiate tbe other acts or features of tbe transaction wherein tbe agency existed. Tbe delivery of tbe check to create tbe loan is part of tbe transaction. This rule of law, we believe, is lost sight of in tbe learned opinion, which does not treat tbe question of estoppel, at all.

<p>INTEREST: Wills: Contest of Wills. While a suit contesting a will is pending and undetermined, the executor of the will cannot carry out its provisions and is not liable to a legatee for interest on the legacy on account of his failure to pay it when it was properly payable but for the pending contest, until after a determination of the contest and a certification of the establishment of the will to the probate court; after that time the executor is liable to the legatee for interest.</p>

<p>1. PRACTICE: Presumptions: Special Judge: Oath of , Office. Where the record is silent as to the qualifying of a special judge who sat in a case, and no point was made on it below, .it will be presumed that he was duly qualified.</p> <p>2. TRADEMARKS: False Device. Where the union label, used by the Typographical Union of North America and the Allied Printing Trades Council of Missouri, was used' as a device or trade mark for selling and delivering cards by one who had never obtained the right to use it, such one was liable to prosecution and punishment as provided by section 10367, Revised Statutes 1899.</p>

Ripley Circuit Court. — Son. J. G. Sheppard, Judge. Statement. — Plaintiff instituted an action against defendant to quiet the title to a tract of land containing one hundred and sixty acres in Ripley county.

— Hon. W. N. Evans, Judge. The statute declares that notice of such election shall be published for four consecutive weeks, and the honorable Kansas City Court of Appeals in the recent case of State v. Dobbins,’116 Mo. App. 29, held that if such publication of notice was in a weekly newspaper it must be published five times to fulfill the requirements of the statutes. And that the election should take place on any of the ten days following the fifth publication.

Louis City Circuit Court. — Son. John .IF. McElhinney, Judge. (1) The plaintiff is estopped to maintain the present action by reason of his acceptance of the amount of the judgment rendered against defendant in the former suit of Leet v. Gratz, 92 Mo.

<p>Original Proceeding by Motion to Correct Record of Naturalization.</p>

— Eon. W. N. Evans, Judge. Respondent testified that lie sold the Hardy property some months before the commencement of this suit, and if there had been a verbal contract of sale of said property entered into between the parties, said sale of the' property by respondent not only entitled appellant to recover for the account given as a part of the purchase price,' but also to a lien on said property for its payment. Devore v. Devore, 138 Mo. 181; Birge v. Bock, 44 Mo.

Louis City Circuit Court. — Eon. Daniel Q-. Taylor, Judge. The judgment should he reversed, because the court erred in giving plaintiff’s instruction 1. “Where two separate and independent declarations of law are directly in conflict, one of them declaring the law correctly and the other erroneously, one does not cure the other' and the error is a fatal one, since the appellate court cannot tell by which one the jury were guided.” Sheperd v. Transit Co., 189 Mo. 373; Brown…

<p>1. SALES: Leases: Conditional Sale. An instrument purporting to be a lease of a storeroom, fixtures and stock of goods to the lessees, for a fixed period, in consideration of a certain sum payable in monthly installments, to which instrument .was added a second part or contract in the form of a proposal by the lessees, accepted by the owner, to purchase the stock and fixtures and the good will of the establishment at the expiration of the lease, together with certain stipulations about the termination of the lease on giving notice, the posting of earnest money to be forfeited for failure to comply with the agreement, the giving of a chattel mortgage to secure certain payments and other stipulations, is examined and, Held, the instrument was not a lease and an option to purchase, as it purports to be on its face, but taken as a whole was a conditional sale executed in that form for the purpose of evading the statute regarding conditional sales.</p> <p>2. -: Conditional Sale: Recording. Our statute, section 3412, Revised Statutes 1899, requiring sales, etc., of personal property to be evidenced by writing, executed, acknowledged and recorded, otherwise making them void as to creditors and purchasers in good gaith, does not apply to one who is not a purchaser or a creditor of the transferee; a guarantor of the performance of the conditions of such an instrument on the part of the vendee was not under the protection of the statute.</p> <p>3. -: -: Reclaiming Property by Seller. Section 3413, Revised Statutes 1899, providing that it shall be unlawful for the seller of property upon condition to retake the same without tendering back to the purchaser what he has paid, less compensation for use of the property, does not require the seller to reclaim and pay back part of the purchase price, but only prevents him from reclaiming without a tender. A guarantor of the performance of a conditional sale by the purchaser would not be released on account of the failure of the seller to reclaim.</p> <p>4. GUARANTY: Rescission: Bankruptcy: Allowance of Claim. Where the seller in conditional sale of a stock of goods procured the allowance before a referee in bankruptcy of sums to be paid by the purchaser, he did not thereby elect to rescind the contract of purchase so as to release the guarantor of such payments and prevent an action to recover the same against the guarantor; he could have different judgments for- the same breach of the contract, hut could only have one satisfaction.</p>

(1) The petition states a cause of action. It is alleged that plaintiff duly performed and fulfilled all the .conditions required of him by the terms of the policy, and in due time after the fire, and more than sixty days before the commencement of the action, to-wit, on the 20th day of May, in the year 1903, gave to defendant due notice and proof of the fire and loss, and demanded payment of the sum insured, but defendant has ever failed and refused, and still fails and…

— Eon. J. O. Sheppard, Judge. (1) In a proceeding based upon an attachment bond, it is necessary that the petition allege the nonpayment of the damage, otherwise it is fatally defective. Morgan v. Menzies, 60 Cal. 341; Cunningham v. Jacobs, 120 Ind. 306; Hencke v. Johnson, 62 Iowa 555; Church v. Campbell, 35 Pac. 381; Piney v. Hushfield, 1 Mont. 367.

— Hon. David H. Eljy, Judge. Statement. — The petition in this case is as follows: “Plaintiff for cause of action against defendant states that the defendants made, executed, signed and delivered, for value received, their promissory negotiable note, dated December 28, 1898, for one hundred and twenty-eight and fifty-one-hundredths dollars ($128.50), due in twelve (12) months from the date thereof with eight per cent interest, due and payable annually, and if not so paid, to…

<p>JUDGMENTS: Appeals: Final Judgment. Where the trial court, after sustaining a motion to strike out the defendant’s answer, makes and enters a ruling to the effect that the petition does not state facts sufficient to constitute a cause of action against the defendant and orders dismissal of the case, this is not a final judgment from which an appeal will lie.</p>

Louis City Circuit Court. — Hon. Robert M. Foster and Hon. Virgil Rule, Judges. (1) The court should have given defendant’s instruction that plaintiff was not entitled to recover. The evidence of the plaintiff showed that there had been no meeting of the minds of plaintiff and defendant either expressly or impliedly on the proposition that defendant owed plaintiff $1,000.

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

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

<p>1. RAILROADS: Fences: Pleading. Ip. an action against a railroad company for damage to the plaintiffs’ crops caused by animals which came upon his fields from the defendant’s right of way, where it was alleged that the animals came into plaintiffs’ field by reason of the defendant’s failure to erect and maintain fences and cattle-guards, this was sufficient after verdict so that it was not necessary to allege that the animals came upon the plaintiff’s fields from the defendant’s right of way on account of defendant’s failure to maintain a fence and cattle-guards where it should maintain them.</p> <p>2. PRACTICE: Pleading: Objection to Evidence. The practice of objecting to the introduction of evidence on the ground that the petition does not state facts sufficient to constitute a cause of action is only tolerated by the law; such an objection is well taken only in those cases where the petition is fatally defective after verdict.</p> <p>3. RAILROADS: Fences: Ownership. Where a railroad company was operating a railroad, it was liable for failure to fence its right of way and it was immaterial whether it owned the road which it was operating or not.</p> <p>4. -: -: Waiver by Owner. Where the owner of land through which a railroad company was constructing a railroad obtained permission to fence across the place where a cattle-guard should be, in order to protect his crops, but before he erected the fence he was forbidden by the company to proceed with the work and assured by it that cattle-guards would be erected, he did not thereby waive his right to damage for failure of the railroad company to maintain cattle-guards.</p>

<p>Appeal from Stoddard Circuit Court. — Hon. J. L. Fort, Judge.</p> <p>Negligence is an affirmative fact to be established by proof before there can be any recovery of damage on account thereof, and it is a question of law whether or not the evidence tends to prove such negligence in any case. Ryan v. McCully, 123 Mo. 646; Chandler v. Gas Co., 174 Mo. 328; Stepp v. Railway, 85 M'o. 229; Rutledge v. Railway, 123 Mo. 121; Warner v. Railroad, 178 Mo. 125. The court erred in giving instruction 2 on the part of plaintiff, in that it instructs the jury that in arriving at their verdict they may take into consideration any loss of earnings during the remainder of her life. This is error, for the reason that there is no testimony on which to base that instruction; in other words, there is no evidence as to what the plaintiff’s earning capacity was. There was no evidence that she was in any business or in any calling that she would derive any income from whatever. In the case of Wallack v. Transit Co., 123 Mo. App. 167, the court says: “Plaintiff’s instruction on the measure of damages is erroneous in authorizing the jury to assess damages for loss of time and earnings, caused by the injury, for the reason there is no evidence of the value of plaintiff’s earnings.” This being a mixed or freight train, the plaintiff as a passenger on said train assumed the dangers or perils which are necessarily incident to that mode of conveyance. McGee v. Railway, 92 Mo. 208; Whitehead v. Railway, 99 Mo. 263; Tuley v. Railway, 41 Mo. App. 432; Fullerton v. Railway, 84 Mo. App. 498; Wait v. Railroad, 165 Mo. 612.</p> <p>Statement. — The plaintiff in this case brought her action for personal injuries received while a passenger on a freight train of the defendant to which was attached a passenger coach, into which she was escorted by the conductor of the train and against which coach, while on the track, other cars were backed with such violence, as it is claimed, as to throw her forward across the seat and injure her internally. Charging negligence. in the operation of the train, she sues for $15,000 damages. At a trial before the court and jury she was awarded $1,000. . Various errors are assigned to the giving and refusal of instructions and it is insisted that there was no evidence whatever in the case to sustain the verdict. Among other instructions given at the instance of the plaintiff is this, in part, in instructing.on the measure of damages, namely, that the jury should assess plaintiff’s damages at such sum, not exceeding fifteen thousand dollars, as from the evidence they might believe to be a fair compensation for the injuries sustained by her on account of the collision; this instruction closing with these words: “and that in estimating such damages you should take into consideration the physical.,pain and mental anguish occasioned by her injuries,, if the jury find that she was injured. The fact, if you so find from the evidence, that her injuries are permanent, and their future effect upon her health, if from the evidence you believe it will be affected thereby; and further, any loss of earnings during the remainder of her life.” This covers all contained in the instructions as to the rule for estimating the damage. It is objected to this instruction that it submits to the jury the question of loss of earnings by plaintiff during the remainder of her life and that there was no evidence whatever showing what earnings she had theretofore been receiving or would lose by reason of her injuries. The testimony on this point, as set out in the brief of plaintiff’s counsel is this:</p> <p>“Q. I will ask you if you are able now, or have been since you got this injury, to do your work? A. No, sir; I have not been able to do anything.</p> <p>“Q. I will ask you, if before you received this shock, you was able to do your work, and a healthy woman for your age? A. Yes, sir; I whs able to do my work and make my own living for myself and daughter, and I was sound in body and mind and in good health.</p> <p>“Q. Now, I will ask if this injury has tothlly incapacitated you from making your living? A. Yes, sir.</p> <p>“Q. What had you been doing prior to this time? A. Sometimes, for several years, I have been keeping a rooming house, renting rooms.”</p> <p>This is all the evidence touching the matter of earnings claimed by counsel for plaintiff to be in the case.</p>

Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.

Louis City Circuit Court. — Hon. Geo. E. Shields, Judge. The single question in this case is whether under section 997, Revised Statutes 1899, the court had jurisdiction of the cause of action.

<p>(Opinion by GOODE, J.)</p> <p>1. NUISANCE: Obstruction of Highway. Where a Iotowner built a sidewalk across an alley which ran in the rear of his</p> <p>' property in such a way as to cut off access from that direction to the rear of the lot adjacent, which was depressed below the grade, the owner of the latter lot could maintain a proceeding for a mandatory injunction to have the obstruction abated.</p> <p>2. -: -: Consent of the Municipality. It was no defense to such action that the sidewalk was laid on the established grade and under the direction of the city engineer.</p> <p>(Dissenting Opinion by REYNOLDS, P. J.)</p> <p>3. -: -: Modification of Decree. Under the facts mentioned the sidewalk should not’ be ordered removed, but the defendant should be ordered to remove the curbing and put in an incline from the inner line of the sidewalk to the ground so as to enable plaintiff to drive across.</p>

<p>Appeal from St. Louis City Circuit Court. — Eon. Geo. E. Shields_, Judge.</p>

<p>1. CARRIERS OF PASSENGERS: Negligence: Passenger Alighting From Train. To back or jerk a passenger car while a passenger is in the act of alighting from it, without waiting a reasonable time for the passenger to alight, is negligence on the part of those in charge of the train to which the car is attached for which an action will lie by the passenger for an injury caused thereby.</p> <p>2. -: -: Pleading: Instruction: Res Adjudicata. When an instruction has been approved on a previous appeal of the same case it remains the law of the ease thereafter. An instruction objected to held no broader than the pleadings in this case on a former appeal. [124 Mo. App. 224.]</p> <p>3. PRACTICE: Evidence: Timely Exception. Where no objection was made or exception taken to the introduction of evidence at the trial, the appellate court will not consider errors assigned upon its incompetency.</p> <p>■4. DAMAGES: Personal Injuries: Excessive Verdict. In an action for personal injuries where the evidence shows the plaintiff had suffered hemorrhages of the lungs, a broken rib, had developed consumption as a result of the injury, had lost twenty-eight pounds in weight and had spent $200 or $300 for medical aid, a verdict for $4,500 is not excessive.</p>

— Eon. James T. Neville, Judge. (1) The testimony — by plaintiff’s witnesses as well as by defendant and his superintendent show that there was no disturbance of the rock foundation made when the street was originally paved — and that the resolution did not contemplate disturbing it, but merely cleaning off the loose dirt, leaves, etc., and placing a new surface on the stone foundation already there.

Louis City Circuit Court. — Hon. Daniel (x. Taylor, Judge. The plaintiffs were members of the old congregation of St. Stanislaus and under the articles of association and deeds read in evidence became members of the new corporation known as the Polish Eoman Catholic St. Stanislaus Parish. É.

<p>Appeal from Lincoln Circuit Court. — Eon. Jas. D. Barnett, Judge.</p>

Louis City Circuit Court. — Hon. Robert M. Foster and Hon. Virgil Rule, Judges. The motion of appellants to amend their answer by interlineation to correspond to the proof should have been allowed. A pleading may be amended to conform to the evidence after the close of the evidence. R. S. 1899, sec. 657; Baltis v. Friend, 90 Mo. App. 408; Dorsey v. Railroad, 83 M'o. App. 528; Howard v. Shirley & Hawkins, 75 Mo. App. 150; Insurance'Co. v. Smith, 117 Mo. 297.

— Hon. Jas. D. Barnett, Judge. (1) The court erred in not directing a verdict for the appellant in as much as plaintiff’s assignor had failed to comply with the requirements of lines 81, 82, 83, 84 and 85 of the policy. Mueller v. Insurance Co., 45 Mo. App. 85; Fleisch v. Insurance Co., 58 Mo.

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. (1) Where parties have reduced their contract to writing, it is conclusively presumed that the writing embodies and expresses their entire agreement. In arriving at the meaning of that agreement, the court is limited to the language employed by the parties. “The question is not, what did the parties mean to say but what is the meaning of what they have said.” Missouri Edison Co. v. Bry, 88 Mo.

Louis City Circuit Court. — No». Matt Gr. Reynolds, Judge. Where the policy excepts injury happening while the insured is intoxicated, the exception applies to prevent a recovery Avhether the condition was the cause of the injury or not. 1 Am. and Eng. Enc. (2 Ed.), 318; Shader v. Assurance Co., 66 N. Y. 441; 23 A. R. 65; Standard L. A. I. Co. v. Jones, 94 Ala. 434; 5 Thomp. & C. (N. Y.) 643; Campbell v. Fidelity & C. Co., 109 Ky. 661; Carr v. Insurance Co., 100 Mo.

— Eon. Argus Cox, Judge. Tbe action of tbe Greene Circuit Court in quashing tbe panel of jurors after issue joined and jury sworn was in legal effect a nonsuit and tbe court erred in continuing tbe cause. Tbe court upon review should have dismissed said action. Tbe alleged affidavit upon which said action was predicated is in law no affidavit.

— Hon. Jas. T. Ne-ville, Judge. The deputy, while denying the promise, had testified to his having been there twice for that purpose, and had testified that on the day of sale a bystander had said to him in the sheriff’s office just before the sale took place, that Mr. McCammon was interested in the sale and wanted to be present — but no effort was made to let him know of the sale.

— Hon: Chas. D. Stewart, Judge. The note is sued on as one negotiable and it is alleged that the holder and plaintiff1 succeeded to his title by indorsement. It was incumbent on the plaintiff to prove the indorsement. It is denied in the answer. Dempsey v. Harrison, 4 Mo. 267. The general rule is that the possession of a note not payable to bearer nor indorsed in blank by a third person is not prima facie evidence of ownership. Dorn v. Parsons Estate, 56 Mo. 601.

Louis City Circuit Court. — Eon. Matt. G. Reynolds, Judge. When a case is tried by tbe court sitting as a jury, declarations of law serve to advise the appellate court of the view of the law which the trial court took and of the theory on which the case was tried. Matson v. Frazer, 48 Mo. App. 310; Pottery Co. y. Folockemer 131 Mo. App. 105. Instructions and declarations of law must be based on tbe issues made by tbe pleadings.

Louis City Circuit Court. — Hon. Virgil Rule, Judge. In a cause originating in a justice court unless an instrument or statement of account is filed a statement of the facts constituting the cause of action upon which the suit is founded must be filed. R. S. 1899, sec. 3852; Brashears v. Strock, 46 Mo. 222; St. Louis v. Babcock, 156 Mo. 153. When a party sues on a contract a substantial compliance with the terms of the contract must be proven to entitle him to recover.

<p>PRACTICE: Bill of Exceptions: Time for Filing. Where the abstract of the record shows no order made during the term at which the appeal was taken, giving time beyond the term for filing a bill of exceptions, but shows that an order was made by the judge in vacation after adjournment for extension, reciting that it was within the time originally given, and the bill was filed within such extended time, an appellate court will not consider matters of exception to the proceedings in the trial court.</p>

<p>1. SALES: Mistake in Bid. A lumber company submitted to a contractor a bid to furnish lumber, called for in a list submitted by the contractor, the bid setting out the number of pieces required of each dimension and kind of lumber, with extensions showing the number of feet of each dimension and kind. The bidder made a mistake in calculating and extending the number of feet in one item, showing the number of feet much ■ less than a proper calculation would show. The bid was a lump sum for the lumber described, and was much less than it would have been if the mistake in feet had not been made. The contractor accepted the bid and signed a contract with the owner to erect the building for which the lumber was desired, before discovering or being apprised of the mistake. Means of - detecting the mistake were more available to the bidder than to the contractor. Held, on a refusal of the bidder to comply with his bid, the contractor could maintain a suit against him for the breach of his contract.</p> <p>2. -: -: Cautionary Proviso. A proviso in the printed form of the bid that errors in extensions and footings were subject to correction, did not affect the contractor’s right, since he had asked a round bid for the various pieces of lumber of different kinds, and not for a bid by feet, and on the strength of the bid had changed his position by entering a building contract with the owner. [On questions raised by this point the case is identical with Boeckler Lumber Co. v. Cherokee Realty Co., 135 Mo. App. 708, 116 S. W. 452.]</p>

Francois Circuit Court. — Eon. Chas. A. Killian, Judge. The State can prosecute a writ of error in the Court of Appeals, only in cases where the statute authorizes an appeal; and the statute nowhere authorizes the State to appeal, or to a writ of error from the ruling of the court in quashing an information in a prosecution for misdemeanor. R. S. 1899, sec. 2708, 2709; State v. Beagles, 174 Mo. 627; State y. Rozelle, 174 M'o. 632; State y..R,oss, 119 Mo.

— Hon. Ben Eli Guthrie, Special Judge. A contract entered into for the purpose of forming a corporation, by the terms of which the subscribers agree to take a stipulated amount of stock in said concern, is valid. It inures to the corporate body when organized and is enforcible against the signers. 26 Am. and Eng. Ency. of Law (2 Ed.), pp. 902-903, and authorities there cited. 10 Cyclopedia of Law and Procedure, 386, 388; Hotel Co. v. Smith, 13 Mo.

Louis City Circuit Court. — No». Jesse A. McDonald, Judge. The liability of the defendant is fixed in this case by contract. The terms of the contract are plain, unambiguous, and not open to dispute. The law is well settled that payment' of part of a debt is not a payment of the whole.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. (1) The act of 1905 (Laws 1905, p. 53) gave no new right of action. The shipper could always have sued either the connecting carrier if negligent, or the initial carrier. Each was liable even when the latter had not itself been negligent. Meyer v. Railroad, 120 Mo. App. 294; Halliday v. Railroad, 74 M'o. 159.

— Hon. Jas. T. Neville, Judge. (1) Instruction No. IV asked for by and given for the plaintiff, in so far as it includes and deals with tuberculosis and other latent diseases, other than rheumatism, is erroneous and harmful, for the reason: (a) It is not based on the allegations of the petition and is not justified or supported by any testimony whatever, ft submits issues to the jury on which there is no evidence.

<p>Appeal from Lincoln Circuit Court. — Hon. Jas. D. Barnett, Judge.</p>

Louis City Circuit Court. — Son. Jas. E. Withrow, Judge. (1) Where a fact is admitted at the trial and the case is submitted to the court by both parties on that theory, no party will be allowed to advance upon appeal a different theory as to the fact admitted. Bray v. Se~ ligman, 75 Mo. 31; Matousek v. Union, 192 Mr. 596; Walsh v. Railroad, 102 Mo. 588.

— Eon. Benj. F. Davis, Judge. (1) The Northcut Cypress, before the construction of the ditch through it, never was a watercourse. It was a cypress marsh, densely covered with grass, cypress knees, brush and timber, and called by some of the witnesses a “jungle.” Byrne v. Railroad, 47 M'o. App. 383; Jones v. Railroad, 18 Mo. App. 251; Benson v. Railroad. 78 Mo. 504; Railroad v. Schneider, 30 Mo. App. 620; 2 Farnham on Waters and Watercourses, p. 1562, sec. 459; 30 Am. and Eng.

— Noto. Henry O. Riley, Judge. (1) Unquestionably Tinsley would be estopped to deny his declarations to Corbett, representing Roberts, to the effect that the debt due him from Campbell, to secure which his mortgage from Campbell was given, had been paid, and that it was all right for Roberts to go ahead and take the mortgage to secure this note for $500. In his declarations and actions every element to constitute estoppel is present, which are: 1.

Louis City Circuit Court. — Hon. Dan’l G. Taylor, Judge. (1) (a) To render words actionable per se, where the charge is the commission of a crime; the crime charged must be indictable, or punishable by imprisonment, or other corporal penalty, or punishable by an infamous punishment; and they must make out the charge without requiring any help from the surrounding facts.

— Son. Chas. D. Btevyart, Judge. Barnes cannot maintaini this suit against Otto Plessner, the defendant, because at the time the suit was instituted Mrs. Plessner was in possession. In order to maintain a replevin suit against a defendant lie must at the time the snit was instituted he in possession. Davis v. Randolph, 3 Mo. App. 454; Haeger v. Marcus, 5 Mo. App. 565; G-ulatha v. Walsten, 7 Mo. App. 66; Penn v. Brasher, 56 Mr. App. 24; Myers v. Lingenfelter, 81 Mo.

— Eon. David B. Eby, Judge. The agreement of September 2, 1905, pleaded and introduced in evidence as Exhibit 3, was not a subscription for shares of stock in any corporation, but was simply an informal or preliminary paper of subscription —such as is commonly signed as a part of the enterprise and zeal which gives birth to a corporation; but which the statute fails to recognize among the necessary and prescribed steps to be taken by the incorporators to create a body…

Louis City Circuit Court. — Now. Daniel D. Fishery Judge. The liability of a landlord, for injuries on common portion of property extends to tenant’s guest, guest of tenant’s wife, and on principal to guest of tenant’s son. Roche v. Sawer, 176 Mass. 71; Hart v. Cole, 156 Mass. 479; Henkel v. Muir, 31 Hun 28; Gleason y. Boehm, 58 N. J. L. 477; Fisher v. Jensen, 30 111.

— Hon. Chas. D. Stewart, Judge. Statement. — This action is in the nature of trespass on the case for alleged fraudulent representations whereby the executors of the will of Augusta Feldman, deceased, have been induced to delay payment of a legacy to plaintiff. The petition states these facts: Plaintiff Henry Feldman, was one of the heirs at law of another Henry Feldman, who resided in Van Burén county, Iowa, and died there in 1899.

— Hon. Jas. D. Barnett, Judge. (1) The affidavit for appeal failed to state whether it was from the merits or from an order of judgment taxing costs. That statement was necessary in the affidavit in order to confer jurisdiction upon the circuit court. R. S. 1899, sec. 4062; Bader v. Jones, 119 Mo. App. 688.

Louis Court of Criminal Correction.— Eon. Wilson A. Taylor, Judge. (1) The information charges separate, distinct, repugnant and inconsistent offenses in one count. It is charged that the defendant did set up, keep, use and ‘permit to be kept and used.’ This read in the light of the statute, to-wit: “Permit to be kept or used by any other person,” makes the point clear.

<p>1. MASTER AND SERVANT: Guarding Machinery: Injuries to Servant. The facts in this case are fully set out in the opinion in a former suit for the same injuries brought in the Federal Court, which case is reported in 126 Fed. Rep. at page 495, St. Louis Cordage Co. v. Miller. The law of the case is expressed in the dissenting opinion there reported.</p> <p>2. -: -: Instructions: Jury Questions. In an action for injuries received by the plaintiff while operating a machine as an employee of defendant, it was proper under the circumstances of the case, to submit to the jury the questions, whether the cogwheels of the machine, by which plaintiff was injured, were so placed as to be dangerous unless they were guarded, and whether it was practicable to guard them without interfering with the proper working of the machine.</p> <p>3. -: -: -: Ground Covered. In such action instructions requested by the defendant were properly refused because they singled out particular facts for comment, and, so far as they were correct, the ground was covered by the instructions given.</p>

— Hon. Henry G. Riley, Judge. Defendants’ evidence, tending to show that the flue was the true cause of the fire, made it necessary 'for plaintiff’s circumstantial proof to be of the very strongest character. Peck y. Railroad, 31 Mo. App. 123; Peffer v. Railroad, 98 Mo. App. 292; Brooks v. Railroad, 98 Mo. App. 106; Torpey v. Railroad, 64 Mo. App. 382; Gibbs v. Railroad, 104 M'o. App. 276; Bank v. Railroad, .98 Mo. App. 336; Wright v. Railroad, 107 Mo. App. 212; Big Riv. Ld.

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. Plaintiffs’ causes of action mentioned in the first two counts of their petition accrued in the city of St. Louis, the place where the services were rendered in preparing the plans and specifications, and the trial court erred in deciding that the cause of action accrued in Springfield, the place where defendant let the contract for the erection of the hotel building.

<p>1. SUNDAY: Sell Liquor: Delivery. In a prosecution of a defendant for selling a keg of beer on Sunday, contrary to the provision of section 2243, Revised Statutes 1899, the evidence is examined and held sufficient to warrant a finding that the beer was sold and delivered on Sunday.</p> <p>2. -: -: Wholesale. And in such case, where it was shown that there were eight. gallons of beer, a wholesale lot, instead of a retail lot, the act is nevertheless forbidden by the statute, section 2243, which is directed against any one who shall “sell or retail” fermented liquor, etc.</p> <p>3. PRACTICE: Irrelevant Evidence: Declarations of Law. The admission of irrelevant evidence is not reversible error where the cause was tried before the court without a jury and declarations of law were given indicating that the irrelevant testimony had nothing to do with the result.</p>

— Hon. James H. Slower, Judge. (1) There was an entire failure of proof on the part of the plaintiff and the ruling of the court overruling defendant’s demurrer to plaintiff’s evidence was error, but as defendant introduced evidence in defense we refer this court to the entire evidence in the case and make the point that the evidence wholly fails to prove plaintiff’s cause of action, and defendant’s demurrer to the evidence at the close of all the evidence and request to…

— Hon. William H. Martin, Judge. (1) The first reason given by the trial court, that the court erred in giving the second instruction for plaintiff is not well founded. Taken in connection with instruction “A” for defendants the instructions presented the case to the jury in a more favorable light than defendants were entitled to.

— Hon. Nick. M. Bradley, Judge. (1) At common law, Lulu Harrison, the wife of the defendant, was incompetent to testify in any case to which ■ her husband was a party. Oexner y. Loehr, 117 Mo. App. 709; Bank v. Wright, 104 Mo. App. 242.

— Eon. Haywood Scott, Judge. (1) A factor has no power tb .transfer the title of his principal to goods consigned to him for sale, in payment of a precedent debt due from himself, and a creditor who receives the goods under such an arrangement, though acting in good faith, and in ignorance of the fact that the goods do not belong to the factor, acquires no title, as against the principal. Warner v. Martin, 11 Howard (TJ.

— Eon. Eenry L.. McCune, Judge. (1’) It was error to permit witness Smith, for plaintiff, to say that the wagon was damaged $25. This is not the way to prove damages. Spencer v. Eailroad, 120 Mo. 154; Hurt v. Eailroad, 94 Mo. 255; Belch v. Eailroad, 18 Mo. App. 80; White v. Stoner, 18 Mr. App. 540. (2) The court erred in overruling the demurrer to the evidence offered at the close of the testimony,.

Jasper Circuit Court. — No». Hugh O. Dabbs, Judge. (1) An expression of value or an expression of opinion does not amount to or constitute a warranty. Anderson v. McPike, 86 Mo. 292; Kerr v. Emerson, 64 Mo. App. 129. (2) In this case there was no word of warranty or guaranty used. Carter v. Black, 46 Mo. 531; Gilbreath v. Cams, 91 Mo. App. 516; Sumner v. Bogers, 90 Mo. 333; Lindsay v. Davis, 30 Mo. 410; Anderson v. M'cPilce, 86 Mo. 292; Kerr v. Emerson, 64 Mo. App. 129.

— Hon. James B. Goodrich, Judge. (1) The first and principal error of the court in this case was its refusal to give a peremptory instruction in favor of defendant. Cole v. Railroad, 121 M'o. App. 613; Ellerman v. Transit Co., 102 Mo. App. 295; Warner v. Railroad, 178 Mo. 125; Cogan v. Cass Ave. Railroad, 101 Mo. App. 190; Asphalt and Granitoid Construction Co. v. Transit Co., 102 Mo. App. 469; Hebeler v. Railroad, 132 Mo. App. 551.

— Hon. Walter A. Powell, Judge. (1) There was no evidence of negligence on the part of defendant’s hrakeman. (2) The plaintiff’s injuries were the result of an accident, for which the defendant was not at fault. Sawyer v. Railroad, 37 Mo. 262; Henry v. Railroad, 113 M'o. 555; Feary y. Railroad, 162 Mo. 99. (3) Plaintiff’s evidence shows that she was guilty of contributory negligence.

Original Proceedings by Mandamus. ’(1) On tbe record presented to this court by tbe pleadings, mandamus is tbe only speedy, appropriate, and adequate remedy, to settle the questions of law involved in this action. State ex rel. v. Turner, 210 Mo. 85; State ex rel. v. Meyers, 80 Mo. 601; Bean v. Barton County, 33 Mo. App. 636; Scarritt v. Jackson County, 89 Mo. App. 585; State ex rel. v. McCammon, 111 Mo. App. 630-633; State ex reí. v. Russell, 131 Mo.

— Non. Francis H. Trimble, Judge. (1) Payment made in good faith to the administrator at the domicile of the deceased before there is any local administration is a valid discharge of the debt. Watkins v. Ellett, 108 U. S. Sup. .256; Maas, Adm., etc. v. Bank, 176 N. Y. 377; Schluter v. Bank, 117 N. Y. 125; Ramsey v. Ramsey, 97 111. App. 270; 13 Am. & Eng. Ency. Law (2 Ed.), page 932, and cases cited in note; 18 Cyc., page 1227; In re Williams, 130 Iowa 553, 107 N. W. 611.

Howard Gray, Judge. (1) The court erred in giving in charge to the jury-plaintiff’s instruction numbered 1. (2) The instruction is a departure from the petition, in that the petition, alleges one act of negligence, while the instruction permits recovery under a totally different charge of negligence. .Haines v. Pearson, 100 Mo. App. 555; McLeland v. St. Louis Transit Co., 105 Mo. App. 473; Herbert v. Mound City Boot & Shoe Co., 90 Mo. App. 305.