Volume 139 — Missouri Reports

<p>1. Corporations: contracts ; intention of parties. Where a contract apears on its face to be a personal one but one of the persons who signed it had authority to sign it as agent of a corporation, the question of whether he signed it in his personal or representative capacity, is one of intention. It is not therefore necessary that his authority should have been recited in the contract or his official character suffixed to his name, since this can be shown by evidence aMumde.</p> <p>2. --: STOCKHOLDERS: POWERS TO MAKE CONTRACTS: RATIFICATION. Corporations must act through boards of directors and by their authorized agents. No stockholder as such, whatever his interest, can without authority from the corporation, bind it by contract, however simple; but his voluntary acts may be adopted and ratified by, and thereby become the acts of, the corporation.</p> <p>3. -: BUSINESS, HOW CONDUCTED: DELEGATED AUTHORITY. Section 2508, Revised Statutes 1889, requires that the property and business of a corporation, such as that here involved — a publishing company, whose business was the publication of a daily newspaper — shall be controlled and managed by directors; but it also authorizes these directors “to appoint such subordinate officers and agents as the business of the corporation may require.” This statute is not contravened by a contract made by the president of the company whereby one is appointed editor and manager of the newspaper, with exclusive control and management for a period of five years; for, under it the directors of a corporation have authority to delegate to officers, agents or executive committees the power to transact, not only ordinary and routine business, but business requiring the highest degree of judgment and discretion; nor is formal action of the board of directors necessary in order to confer such authority; and the power of such agent is governed by the'general law of agency. t</p> <p><1. Authority, Shown by Usage: ratification by acquiescence. The evidence shows that Pulitzer, the president of the company, and the owner of nearly five sixths of its stock, had from its formation exercised absolute power over it, and that his acts had always been acquiesced in by the other directors and stockholders; in fact, that he was the company’s alter ego. The contract between him and the plaintiff by which the latter was appointed editor and manager of the newspaper, with exclusive control and management thereof for a period of five years, was against the interest of two of the directors and was not approved by them, but it is nevertheless binding upon them and upon the company, inasmuch as they did not protest against the same, they remaining silent because they recognized the power and delegated authority of Pulitzer.</p> <p>5. Contract: for purchase of shares and appointment to office in COMPANY NOT INVALID AS AGAINST PUBLIC POLICY, WHEN. The Contract by plaintiff with Pulitzer for the purchase of shares in the cor- . poration coupled with an agreement for the election of plaintiff as director and president and his appointment as editor and manager of the newspaper, with exclusive control for a period of five years, at an annual salary of $10,000, was not invalid as against public policy, such contract having been approved by the unanimous acquiescence of all the stockholders; and this is so whether they voted with full knowledge of all the terms of the contract, or blindly in obedience to the directions of Pulitzer.</p> <p>G. -: PERSONAL SERVICES: PROPERTY INTEREST: PRETIUM AFFECtionis : injunction. Plaintiff by his contract purchased one sixth of the stock of the company for which he paid $80,000, and in consideration of this was to have the control and management of the newspaper for five years at a salary of $10,000 a year. He was also entitled to the dividends upon the stock purchased. He had also a reputation as a successful manager of a great metropolitan newspaper to sustain and an opportunity to increase it. In addition, the contract and management of the paper would give him a power and influence among men which were preiium affeefionis and not estimable in money. An action for damages would not give him an adequate remedy for the breach of the contract and therefore a suit for an injunction would lie.</p> <p>7. -■ : DAMAGES: EQUITABLE INTERFERENCE. In giving construction to section 5570, Revised Statutes 1889, this court holds that the action of injunction may be resorted to, notwithstanding there may be an adequate remedy at law for the injury, in all cases where an adequate remedy can not be afforded by an action for damages as such. Where it is perfectly clear that the chief inducement for the acceptance by the plaintiff of the contract were the facts that he was given the control and management of a great newspaper in St. Louis at a time of intense political movements and that he has a reputation as a successful manager of great metropolitan papers to maintain, this court will hold, under the terms mentioned in the contract of his employment, that he had no adequate remedy at law for his discharge in an action for damages, because by the terms of the contract of employment the company had given plaintiff absolute control of the paper if he brought 'it up to the test of financial success by the contract prescribed, and the injury resulting in depriving him of this right to control could not be compensated in damages.</p> <p>8. -:-: mutuality. Nor was there any such want of mutuality in the contract as would prevent a court from restraining an attempt by the board of directors to remove and discharge the plaintiff, inasmuch as his exclusive control of the paper was by the contract conditioned upon his making the net profits for two years as large as they had been for the prior two years, and inasmuch as this contract provided that in case of his failure to meet these tests he should forfeit his position and salary; for, while the court could not by decree compel him to perform the duties of editor and manager in ease of his failure to do so, it could enjoin his interference with the conduct and management of the paper if he failed to measure up to these tests.</p> <p>9. -: -: contracts for personal services. Where by the terms of a contract the plaintiff is answerable to no one for the manner in which he performs his duty, and is accountable only for the stipulated results, namely, that the financial profits of a newspaper for two years shall be as large as they were for two years prior, his position gives him a property right in the possession,- control and management of the paper.</p> <p>10. -: PERSONAL SERVICES: PROPERTY INTEREST: SPECIFIC BERFORMance. Contracts for personal service will not, because they can not, be enforced by courts of equity. But the contract of plaintiff was not merely for personal service. It gave him a property right in the possession, control, and management of the paper, and where such is the case he will be protected by a court of equity from dismissal and ouster. (Sherwood and Robinson, JJ., dissenting.)</p> <p>Per Sherwood, J., Dissenting, Robinson, J., Concurring.</p> <p>1. Contract: sale of shares by majority stockholder, though COUPLED WITH APPOINTMENT TO OFFICE NOT CORPORATE ACT. The contract between Pulitzer and plaintiff was for the sale by Pulitzer of shares in the company belonging to him for a price to be paid to him. It provided also for the election of plaintiff as director and president of the company. It provided further for the appointment of plaintiff as editor and manager of the newspaper published by the company for five years at an annual salary of $10,000. This appointment was by the contract expressly stated to be a part of the consideration moving to Pulitzer for the sale of the shares. The contract in form was between Pulitzer and plaintiff personally, and evidence aliunde showed that the parties dealt as individuals. The contract under these circumstances can not be held to be the act of the company, even though Pulitzer owned a large majority of the stock.</p> <p>2. -: RATIFICATION: MUST BE AFFIRMATIVE AND WITH FULL KNOWLEDGE. The contract could not be ratified by the company except by some affirmative act done with full knowledge of the terms of the contract. Some of the shareholders of the company had no knowledge of its terms, until the first stockholders’ meeting held after its execution when a by-law was adopted, by the concurring vote of all save plaintiff, which was objected to by him as in violation and repudiation of his contract. At the meeting of the board of directors, held next after the stockholders’ meeting, resolutions were passed with the assent of plaintiff by which it was determined that the policy of the paper should remain unchanged and that the president as such should have control of the paper, subject to the paramount authority of the board of directors. Plaintiff was appointed editor and manager for the term of one year and was elected president for the term of one year. He had been shown the resolutions referred to before they were offered for adoption and had written that he could and would work as president, editor, and manager under them in a peaceable and mutually satisfactory manner. Held, to show not a ratification but a repudiation of the claim of plaintiff to absolute control of the paper and acquiescence by him in the paramount authority of the directors.</p> <p>3. Corporation: existence of : estoppel. The plaintiff having proceeded in this suit against the corporation as a corporation and against three of its directors as such, can not now be heax’d to assert that the company is a mere “dummy” organization and that thex’efore the individual contracts of Pulitzer may be enforced against it.</p> <p>4. Contract: mutual assent. Although plaintiff contends that the contract was designed to give him absolute control of the newspaper, it clearly appears that Pulitzer understood otherwise and the minds of the parties not having met upon this essential element specific performance will not be awarded.</p> <p>5. --: construction. The contract did not by its terms give plaintiff “absolute” control of the newspaper. Such control was by section 2772, Revised Statutes 1889, reserved to the board of directors, and any construction of the contract divesting or suspending the authority of the board would render it illegal.</p> <p>6. -: BREACH BY PLAINTIFF: Specific performance. By a supplementary writing executed contemporaneously with the contract sued upon and as a part of it, plaintiff agreed that the board of directors should have the sole power to incur financial obligations on behalf of the company. This stipulation having been violated by him, he is not entitled to the remedy of specific performance.</p> <p>7. -: specific performance: mutuality. Plaintiff could quit his employment as editor and manager at any time without breach of his agreement. The contract therefore should not be specifically enforced for want of mutuality in its obligations.</p> <p>8. -. : unconscionable: not SPECIFICALLY enforoed. As construed by plaintiff the contract would make the corporation liable for libelous publications in the newspaper when it was without power to prevent them, and specific performance of the contract should be refused because it was unreasonable and unconscionable in its operation.</p> <p>9. -: PERSONAL SERVICE: PROPERTY INTEREST: INJUNCTION. The contract was one for personal service, none the less so because coupled with and part of an agreement for the purchase of property, and an injunction will not be granted to coerce the employer into continuing the employee in his service.</p> <p>10. -: POWER TO ENFORCE. The want of power in the courts to enforce a contract for personal service can not be supplied by any provision of the contract itself.</p> <p>11. -— : ultra vires: publio policy. The contract as eonstruedby the majority is ultra vires, because in conflict with section 2772, Revised Statutes 1889, which requires that the property or business of á corporation “shall be controlled and managed” by a board of directors who shall be chosen in a certain prescribed manner. It is also void because opposed to public policy, in that with a sale of stock it welds an agreement for the sale of an office, of trust, a position with a salary and the control of the corporate business.</p>

<p>1. Tenure of Office: general law. Where the statute uses the words “until his successor shall be elected and qualified” there can he no doubt that the duration and power of such holding-over elective officer will continue until his successor has been chosen and qualified; hut where such words are omitted it is sometimes a matter of doubt whether or not the incumbent can hold over.</p> <p>2. -: circuit judge: appointed by governor. A circuit judge was appointed by the Governor “until his successor shall he elected and qualified.” Section 3276, Revised Statutes 1889, says that if a vacancy occur in the office of judge of a court of record it shall be filled by appointment of the Governor “until the next general election held after such vacancy occurs, when the same shall be filled by election for the residue of the unexpired term.” The successor to said appointee was elected in November, 1896, and qualified on January 2, 1897. Held, that the official term of such appointee expired at the general election in November, 1896, and eould not be extended by reason of the fact that the commission he received from the Governor assumed to enlarge his official term until his successor qualified; hut whether his official acts were valid as a de facto judge between the time of the general election and the qualifying of his successor, is not decided because not necessary to a proper determination of this case.</p> <p>3. -:-: motion for new trial. The respondent was elected circuit judge in November, 1896, and qualified, in the presence of his predecessor, on January 2, 1897. His predecessor had decided two cases on December 31, and adjourned court till January 4, and on December 31 motions for new trials were filed in each ease, which were on January 4 overruled by respondent’s predecessor, who stated at the time that he was closing up the unfinished business of December 31, and having overruled the motions resigned the bench, and respondent at once assumed the duties of the officer. Sold, that respondent alone had control over the motions, and that his predecessor’s ruling thereon was wholly unauthorized and void.</p> <p>4. -: -: -. Formerly the practice was for an incoming judge, when called upon to pass upon a motion for a new trial filed before his predecessor, to grant such motion. But under section 2171, Revised Statutes 1889, which is a remedial statute, such judge has the power to pass upon the motion for a new trial and to sign the bill of exceptions of a ease tried before his predecessor, thus setting aside the authority of Cooker v. Cocker, 56 Mo. 180, and Wolfolk v. Tate, 25 Mo. 597.</p> <p>5. Statutory Power: coincident power. The statutory power to sign a bill of exceptions carries with it as a coincident power the authority to pass upon a motion for a new trial, without the exercise of which coincident authority the power to sign a bill of exceptions would be void and useless, because, “whenever a power is given by a statute, everything necessary to the making it effectual or requisite to attain the end, is implied.” Ex parte Marmachilce, 91 Mo. loo. eit., 262, and eases cited.</p>

— Hon. J. E. G-reen, Judge. (1) It was not necessary in this case to prove actual and positive fraud in the act of obtaining the judgment of approval of the final settlement of I. M. Davidson, as administrator of the estate of J. W. Baldwin, to authorize a court of equity to set it aside. But any improper omission or concealment, which results in -loss to those interested, is sufficient without regard to the motives that actuated it.

Louis City Circuit Court. — Hon. Leeot B. Valliant, Judge. (1) The circuit court erred in overruling defendant’s objection to the introduction of any evidence, and in refusing to give defendant’s instruction for a nonsuit at the close of plaintiff’s ease.

<p>Appeal from St. Louis Circuit Court. — Hon; Jaoou Klein, Judge.</p>

— Hon. James H. Lay, Special Judge. (1) There being no other property attached than the four street cars under the writ of attachment, and the interpleader having claimed the property attached and that issue having been decided in favor of the interpleader by final judgment, there was practically no attachment suit pending. The attachment and all of its incidents had been determined, and hence the court had no jurisdiction whatever to order a new bond.

— Hon. James T. Neville, Judge. (1) The widow has the right, until dower is assigned, to occupy and enjoy the mansion house of her husband and the messuages thereto belonging, and can defeat ejectment brought against her. 1 R. S. 1855, sec. 21, p. 672; R. S. 1889, sec. 4533; Holmes v. Kring, 93 Mo. 452, loe. cit. 458; Gentry v. Gentry, 122 Mo. 202.

— Hon. P. O. Stepp, Judge. (1) Inquest had in the probate court having been subsequent to the transaction in question, was not competent evidence of the insanity of Mr. Rhoades. Bank v. Moore, 78 Pa. St. 407; Hovey v. Chose, 83 Am. Dee. 517; Jackson v. King, 15 Am. Dec. 357.

— Hon. Andrew Ellison, Judge. (1) Section 7079, Revised Statutes 1889, provides for the redemption of real estate from sale under trust deed where the cestui que trust, his assignee, or any person for him shall have been the purchaser, and if the allegation in the petition that the property was purchased for the cestui que trust or for him and the purchaser jointly, is sustained by the evidence, we assume that the case is within the statute, the same as if the cestui que…

<p>Appeal from Welster Circuit Court. — Hon. Angus Cos, Judge.</p>

— Hon. G-eorge E. Longan, Judge. (1) It-was clearly error to refuse instruction number 12. Walker was under no obligation to assist Brown, nor was he justified in attacking the defendant or interfering in the defense of Brown, R. S. 1889, sec. 3462. (2) The court erred in admitting illegal and incompetent testimony on the part of the prosecution. First. In allowing counsel for the State to ask witness Greer leading questions. .Second.

<p>1. Criminal Practice: in jeopardy defined. When the jury was charged with defendant’s deliverance, that is, when they were impaneled and sworn, the indictment being sufficient and the court possessed of jurisdiction, then his jeopardy began.</p> <p>2. -: twice in jeopardy. The Missouri Constitution declares: “Nor shall any person, after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life or liberty.” Defendant was charged with stealing a horse owned by John W. Hayes, who was absent at the trial, and was acquitted because the ownership of the horse was not shown. He was again indicted for stealing the same horse from some person to the grand jury unknown. He filed his plea in bar, but was forced to trial, convicted and sentenced to three years’ imprisonment. It was admitted that Hayes was the owner of the horse. Reid, that the jury should have been per- . emptorily instructed to find a verdict for defendant.</p> <p>3. Indictment: known ownership. If the grand jury knows to whom the stolen property belongs, but charges that it belongs to some unknown person, the defendant can not be properly convicted regardless of the fact whether he is guilty or not.</p>

Louis Criminal Cornet. — Hon. H. L. Edmunds, Judge. (1) Defendant’s objection to the sufficiency of the indictment can not be maintained, it being legal and in proper form. State v. Wood, 124 Mo. 412; State v. Elvins, 101 Mo. 244. (2) The evidence is ample to convict defendant of the offense charged. Where an inference of guilt can be reasonably drawn the appellate court will not undertake to interfere with the verdict on the ground of the insufficiency of the testimony.

— Hon. R. E. Culver, Judge. (1) Objection to testimony can not be heard at this time from the fact that defendant failed to state reasons for the same at the time the question was put. A general objection is not sufficient to raise the question in motion for new trial or in this court on appeal. State v. Hope, 100 Mo. 347; State v. Moore, 117 Mo. 401; State v. Nelson, 132 Mo. 197. (2).

— Hon. William S. Heendon, Judge. (1) One of the questions presented to this court for its decision by this appeal is, will the bare claim of adverse possession by an heir in a suit for the partition of the lands which have descended to all, bar the plaintiffs of their right to such partition and drive them to an action of ejectment to establish their title? Wommack v. Whitmore, 58 Mo. 457; Shaw v. Gregoire, 41 Mo. 410; Haeussler v. Mo.

— Hon. W. M. Robinson, Judge. (1) The court erred in excluding the re-survey signed “E. Lloyd, Deputy County Surveyor,” made and recorded in 1870. Gr. S. 1865, sec. 19, p. 164; R. S. 1889, sec. 8320. Surveys made by county surveyors or tbeir deputies shall be considered legal evidence in any court in this State. Gr. S. 1865, sec. 11, p. 163; R. S. 1889, sec. 8312. (2) It was shown by surveyor Edwards and others that E. Lloyd was deputy county surveyor.

Louis City Oirctát Court. (1) In no event can the judgment be considered final so. that interest can be calculated thereon earlier than the date of the passage of the appropriation ordinance by the city. The judgment of the circuit co^urt was liable to become an absolute nullity in the event the municipal assembly failed to make the appropriation to pay the damages, and therefore the judgment of condemnation became a finality only when the appropriation bill passed.

— Hon. A. L. Thomas, Special Judge. (1) Where a note secured by a deed of trust has been obtained by the payee through fraud, and the maker of the note files a sufficient bill in equity in the proper court to set aside the note and deed so obtained, and files a sufficient notice of the pendency of said suit in the office of the recorder in the proper county, then the negotiation of said ■ note, after filing said bill and such Us pendens, will not give the purchaser of such…

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The court erred in sustaining the plaintiff’s motion for a new trial on the ground that the instructions given were erroneous. Candee v. Railroad, 31 8. W. Rep. 1032; Miller v. Car Co., 31 S. W. Rep. 574; R. S. 1889, sec. 2241; Sess. Acts 1891, p. 70'; Tetheroio v. Railroad, 98 Mo. 85; Tomlinson v. Ellison, 104 Mo. 112; McClanahan v. West, 100 Mo. 322; Green v. City, 106 Mo. 454.

— Hon. W. W. Wood, Judge. (1) The court erred in overruling appellant’s motion for new trial on the ground that the amount of damages assessed by the jury shows prejudice, bias or mistake. This is not a case in which nominal damages can be given. Boggess v. Railroad, 118 Mo. 328; Fair-grieve v. Moberly, 29 Mo. App. 141; Welch v. McAllister, 13 Mo. App. 89; Railroad v. Ashcraft, 48 Ala. 15; 2 Thompson, Neg., sec. 58, p. 1266; Field on Damages, sec. 886; Reid v. Ins.

Louis County Circiiit Court. — Hon. Rudolph Hirzel, Judge. (1) The first instruction given for the defendant ignores any duty, on the part of defendant’s servants, of preventing the injury, though they may have seen the boy standing on the track, and that he did not observe the approaching train. This has never been the law.

<p>1. - Constitution: appellate jurisdiction: political subdivision oe state. A city within, a county is not a “political subdivision of the State” within the meaning of the constitutional language defining the jurisdiction of the Supreme Court.</p> <p>2. -:--: --: consent oe parties. Consent can not confer jurisdiction of the subject-matter of an appeal any more than of a cause in its earlier stages. It is the duty of the Supreme Court to ascertain, and keep within the limits of its jurisdiction, whether the interested parties so request or not.</p> <p>3. -: -: -: stare decisis. The Supreme Court and both the courts of appeals having for many years followed a certain ruling as to the division of jurisdiction between the courts', the Supreme Court adheres to that ruling, following the maxim stare decisis.</p>

— Hon. E. M. Hughes, Judge. (1) Any money expended by a county under the provisions of section 484 in the support of a county or pauper patient in the insane asylum creates no relation of debtor and creditor. It is an expenditure of public money for the advantage of the insane person, perhaps, in some respects, but also for -the advantage of the community and for the protection of the community.

— Hon. D. W. Shackleford, Judge. (1) The contention is as to the line between the north fractional half (left bank of the Graseonade river), section 30, township 41, range 8, and the south half of the section. The verdict does not decide the contention, and judgment thereon follows the verdict so far as'description is concerned. Robertson v. Drane, 100 Mo. 273, is decisive of this case. (2) The answer of defendant, Ray James, is a complete defense to plaintiff’s suit.

Louis City Circuit Court. — Hon. P. R. Elitcraet, Judge. (1) The court erred in permitting respondent to show what appellant had been compelled to pay for other property in the neighborhood, under condemnation proceedings, and in refusing appellant’s third instruction that “the jury can not take into consideration what may have been paid for other property in the neighborhood, by plaintiff, under condemnation proceedings for its right of way.

— Hon. E. L. íScareitt, Judge. (1) The court erred in permitting the defendant, Pierce, to testify as to the alleged conversations between said Pierce and the deceased, Fowler. R. S. 1889, sec. 8918; Messimer v. McCray, 113 Mo. 382; Leach v. McFadden, 110 Mo. 584; Williams v. Fdivards, 94 Mo. 447; Nichols v. Jones, 32 Mo. App, 657; Meier v. Thieman, 90 Mo. 433; Oreenleaf on Evidence, secs. 394, 397, 398 and 417.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. The statement of appellant, mentioned in the opinion of the first division, is substantially as follows (omitting references to the printed abstract of the record, and some commentary): “This appeal arises out-of the litigation and judgment in the case of Dempsey v. Schawciclter, which is in this division of this court for review, case No. 7515, in which appellant is security for costs. “Plaintiffs made a contract in…

Louis City Circuit Cowt. — Hon. Jacob Klein, Judge. (1) The action of the circuit court in overruling a motion to set aside a judgment will be reversed if it appear that injustice has been done, the court has acted arbitrarily, shown an unjudicial bias, or abused its discretionary powers. Whitsett v. Ransom, 79 Mo. 258; Warner Bcmlcv. Clement, 58 N. H. 533; Hamilton v. Yocum, 108 Pa.

Louis City Circuit Court — Hon. Jacob Klein, Judge. (1) As appears in the record and the statement of facts,- the only point in controversy is that contended for by the appellants., to wit: That the sale was not advertised “in some newspaper printed in the English language in the eity of St. Louis,” within the meaning of said deed of trust, and of the statutes of Missouri governing trustees’ sales.

— Hon. H. M. * Ramey, Judge. (1) The deed of trust in question here is prima facie fraudulent, and the burden was on defendants to show that the debts of the creditors secured in the deed were valid debts of the corporation. See former opinion in this case, 131 Mo. 280.

Mandamus. (1) The right of Clark and Campbell was capable of being contested, and the .judgment involved issues of law and facts. State ex rel., etc., v. Sportsman’s Park Ass’n, 29 Mo. App. 329; High on Extr. Legal Rem. [3 Ed.], sec. 310; 1 Morawetz on Priv. Corp. [2 Ed.], sec. 473; Merrill on Mandamus, sec. 161; 19 Am. and Eng. Eney. of Law, 231, par. 2.

— Hon. Paris O. Stepp, Judge. (1) . Before the court will reform the deed on account of mistake, the mistake must be made out by evidence which will strike the mind of the chancellor as free from reasonable doubt. Steinberg v. Ins. Co., 49 Mo. App. 255; Forrester v. Seoville, 51 Mo. 268; Atkison v. Henry, 80 Mo. 151; Tesson v. Atlantic Mutual Ins. Co., 40 Mo. 33; Sweet v. Owens, 109 Mo. 1; Turner-v. Shaw, 96 Mo. 22; Johnsonv. Quarles et al., 46 Mo. 423.

— Hon. Richard Field, Judge. Agreed statement on which the case was tried: “It is admitted that the defendant is a corporation duly organized under the laws of the State of Illinois, as an insurance company, on the assessment plan.

<p>1. Appellate Jurisdiction: replevin: suits involving title to real estate. A cause can not be appealed to this court as involving title to real estate unless the title in some way be affected by the judgment to be rendered on the entire ease as made by the pleadings and evidence.</p> <p>2. -: -: -. Title to real estate may he inquired into in an action of replevin for the purpose of determining the owner of crops that have grown on the land, yet a suit in replevin can not be made the means of determining the title, for the title is not within the issues to be tried, and will not in any wise be affected by the-judgment.</p> <p>3. -: -: deed oe trust: crops. The ownership of crops, in an action in replevin, depended on the question of whether or not a deed of trust was procured by fraud. The verdict showed that the jury believed if was fraudulently procured. This court holds that such a cause is not one so involving title to real estate within the meaning of the Constitution as gives the Supreme Court jurisdiction on appeal. (Barclay, C. J., dissenting.)</p>

— Hon. John A. Hockaday, Judge. (1) The trial court should have sustained the defendant’s demurrer to the evidence for the reason that the evidence only tended to show a single utterance of the alleged slanderous words, namely, to a public peace officer in the course of such officer’s investigation of a recent larceny. Ciarle v. Molyneux,. L. R. 3 Q. B. D. 237; Blaleeslee v. Carroll, 29 Atl.

— Hon. John A. Hockaday, Judge. (1) That the “intention” of the testator shall control in the construction of wills is a rule universally-recognized by the courts of this country. R. S. 1889, sec. 8916; Nichols v. Bostoell et al., 103Mo. 151; Small v. Field, Green et al., 102 Mo. 104; Rose v. McHose, FxWs, 26 Mo. 590; Murphy v. Carlin et al., 113 Mo. 112; Redman v. Barger, 118 Mo. 568.

(1) This court approved a judgment like the one in this case in the case of Missouri Lead Mining and Smelting Company v. Reinhard, 114 Mo. 218. Held: yet they could not, as directors of the corporation, absorb all of the property and leave plaintiff’s debt unprovided for. The assets of an insolvent corporation are trust funds for the benefit of all its creditors, in so far as to prohibit the disposition of its assets toward the payment of debts due its officers.

Louis City Circuit Court. — Hon. John M. Wood, Judge. (1), Breckenridge was entitled to be subrogated to the rights of the mortgagee, having paid :off the incumbrance, which was a charge on the estate, under the belief that he had the title thereto. Cobb v. Dyer, 69 Maine, 494; Wood v. Smith, 51 Iowa, 156; Young v. Morgan, 89 111. 199; Brewer v. Nash, 16 R. I. 458; Billow v. Warpel, 71 Iowa, 106; Valle v. Fleming, 29 Mo. 152.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The referee admitted illegal and incompetent evidence against the objections of the defendants. Carthage MaA'ble Co. v. Baivman, 44 Mo. App. 886. (2) There is no evidence tending to show that the defendant, M. R. Collins, Jr., was a party to the contract and it was error, therefore, to ’render judgment against him. Carthage Marble Co. v. Bauman, 44 Mo.

— Hon. John A. Hockaday, Judge. (1) If the clerk retained rüoney belonging to the county and refused afterward to make correct returns the county was thereby defrauded, and the defendant was guilty of fraud in procuring the orders of the county court approving his reports. Constitution of Missouri, art. 9, sec. 13; R. S. 1889, secs. 5009 to 5013.

— Hon. William S. Herndon, Judge. (1) There being no bill of exceptions filed in this case, the indictment being in legal form and the record appearing regular on its face, the judgment of the lower court should be affirmed.'

<p>Appellate Practice. The indictment being in proper form, the record proper free from error, and no bill of exceptions having been filed in this court, the judgment will be affirmed.</p>

<p>Appeal from St. Louis Criminal Court. — Hon. Henry L. Edmunds, Judge.</p>

Louis Criminal Court. — Hon. 'Henry L. Edmunds, Judge. (1) Defendant having failed to except to the instructions given, no objections can be urged against them in this court. State v. Johnson, 115 Mo. 495; R. S. 1889, sec. 4270; State v. Gilmore, 110 Mo. 7. (2) The evidence discloses malice, premeditation and deliberation on part of the defendant in the commission of the offense and the verdict of murder in the first degree, as returned by the jury, was warranted.

— Hon. John E. Ryland, Judge. (1) Defendant questions the sufficiency of the indictment. It has been properly held by this court that an indictment for bigamy, if drawn in the language of the statute, is sufficient. 'State v. Gonce, 79 Mo. 600; Commonwealth v. Jennings, 121 Mass. 47; State v. O’Brien, 74 Mo. 550; State v. Cox, 32 Mo. 566; State v. Shiflett, 20 Mo. 417.

<p>1. Practice: exceptions to instructions. This court will not notice the contention that an instruction is erroneous unless exception to its being given was saved.</p> <p>2. -: EXCEPTIONS: INSTRUCTIONS ON ALL POINTS OP LAW. The failure of the trial court to instruct upon all questions of law will not be noticed by this court unless exceptions were saved on this account when the instructions on behalf of the State were given; and even if such exceptions were saved it would avail defendant nothing unless preserved in the motion for a new trial.</p> <p>3. Larceny: evidence: dependant’s statements. Defendant, who was indicted for stealing a horse, was not entitled to have a witness repeat a conversation with him a few days after he took the horse, which was yet in his peaceable possession, in which he told the witness that the horse did not belong to him, but that the owner, who lived over west, would sell him, such conversation having taken place long after defendant had taken the horse into his possession.</p>

— Hon. C. D. Corum, Special Judge. (1) Indeed, the statute of limitations can in nowise be made to apply unless it be first held that defendant was being tried for the commission of the first offense as well as the second.

— HoN. J. H. Slover, Judge. (1) The assessment of the taxes against the real estate owned by the defendants created a personal liability against them for the taxes. E. S. 1889, sec. 7569; Burrows on Taxation, sec. 7, p. 4; Cooley on Taxation [2 Ed.], p. 354; 2 Desty on Taxation, p. 706. (2) The State can collect said taxes by a suit, as in this case.

-T-Hcm. William S. Herndon, Judge. (1) The evidence does not show that appellant ever received one cent, or any other thing, from Mrs. Milotte, or anyone else for the Wyandotte lot. (2) The consideration in a deed is always open to an explanation; and it was an error to exclude the statement of Darnall, showing that appellant received only $700, and that from' Chesnut, and not from Mrs. Milotte. If he received only $700, then he is liable for that amount only.

Louis Court of Criminal Correction. Hon. David Muephy, Judge. (1) It is manifest that the charter does not confer upon the city power to require owners of steam boilers to employ anybody; it is entirely silent on such subject. Therefore, the assumption by the city of such power is void.

<p>Appellate Jurisdiction: motion to remove assignee. Where there is nothing involved in a motion to remove an assignee which gives this court jurisdiction, the case will he transferred to the proper court of appeals.</p>

Charles Circuit Court. — Hon. W. W. Edwards, Judge. (1) The important question in this case is whether plaintiffs have shown such facts as would create an estoppel in, pais as against Hollins, and as against his assignees, plaintiffs in error.

— Hon. John W. Henry, Judge. (1) Under our statute no mere irregularity of any kind should invalidate the tax. The fact that the valuation determined by the assessor was placed in the assessment book for the year 1887 under the column headed “Valuation adjusted by the county board of equalization” was a 'mere irregularity. R. 8. 1889, secs. 7563 and 7708; Black v. McGonigle, 103 Mo. 192; Thomas v. Chapin, 116 Mo. 396; Bailroad v. County Clerk, 57 Mo. 223.

— Hon. W. M. Robinson, Judge. (1) The trial court erred in finding for defendants and dismissing plaintiff’s bill. The proof was overwhelming that the deeds sought to be set aside were obtained by the defendants from plaintiff by fraudulent representations and undue influence and the decree should have been for plaintiff.

— Hon. E. L. Soakritt, Judge. (1) A distinguishing characteristic of this case is the total want of any connection whatever of the appellants with the transaction in which the plaintiff claims to have been deceived. The New Hampshire Investment Company of which they were officers was not even connected with it. It was wholly between the plaintiff and the Winner Investment Company.

— Hon. W. W. Rucker, Judge. (1) The court erred in admitting in evidence the certified copies of assessment lists. Strother v. Christy, 2 Mo. 148; Railroad v. Suydam, 17 N. J. L. 60; State v. Cake, 24 N. J. L. 516. While the statute (R. S. 1889, sec. 7534) provides that the assessor shall file assessment lists with the county clerk, by whom they shall be preserved and kept, it does not authorize copies thereof, certified to by the clerk, to be used as evidence.

— Hon. A. M. Woodson, Judge. (1) This is a proceeding in equity by which plaintiff seeks to set aside a decree in partition, and to cancel a forged deed upon which that decree is based. The lower court on demurrer dismissed the bill. (2) A forgery, except by consent, expressed or implied, can not be made the basis of a right in any form whatever. Remington Paper Go. v. O’Dougherty, 16 Hun. 594; Jackson v. Summerville, 13 Pa. St: 359, 368; Rowland v. Jones, 2 Heisk.