Volume 139 — Missouri Appeal Reports

— Hon. Henry C. Riley, Judge. This is jurisdictional, and may be raised for the first time in this court. It is necessary to show that the property in question in an action of replevin before a justice of the peace, was not seized under any process or attachment against the property of the plaintiff. That is a necessary allegation, and should be proven. R. S. 1899, sec. 3901; Turner v. Bondalier, 31 Mo. App. 582; Fredrick v. Tiffin, 22 Mo. App. 443; Dowdy v. Womble, 41 Mo.

<p>1. GARNISHMENT: Res Judicata: Contingent Liability. Where a surety on an injunction bond receive a sum of money by way of indemnity and subsequently was garnisheed by a judgment creditor of the party who deposited the money and was discharged from the garnishment because the injunction suit was still pending, such discharge did not bar a second garnishment on the same judgment to secure the same fund, brought after the injunction had been determined in favor of the plaintiff.</p> <p>2. -: Prima Facie Case. In a proceeding against a garnishee by a judgment creditor, where the issue was whether the 'garnishee had received money from the judgment "defendant as an indemnity, on account of his being surety on an injunction bond of another party, the evidence is examined and held sufficient to make out the prima facie case for the plaintiff.</p> <p>3. -: Cost: Allowance to Garnishee. Where a garnishee incurred trouble and expense in resisting a garnishment proceeding, which was decided against him, he cannot be allowed anything for expense and trouble thus incurred.</p>

Louis City Circuit Court. — Ho». Moses N. Sale, Judge. Defendant cannot claim penalties for plaintiff’s not completing the building within the time specified in the contract, when such failure of plaintiff was not due to any fault or neglect of plaintiff, but was caused by defendant ordering tile to be substituted for corrugated iron. Van Burén v. Diggs, 11 How.

— No». Chas. J. Stewart, Judge. Error No. 1 and Error No. 2 can be considered together, to-wit: the overruling the motion to squash and the motion to compel the State to elect as the authorities and our argument will be directed to both. There are five distinct, separate, inconsistent offenses grouped together in the information. 1st. That defendant sold intoxicating liquors; 2nd. That he gave away intoxicating liquor; 3rd. That he furnished intoxicating liquor; 4th.

Louis City Circuit Court. — Eon. Jas. E. Withrow, Judge. Where overpayments are made through honest mistake of parties as to facts, excess may he recovered back, though no fraud exists. Koonce v. Bank, 51 Mo. 275; McDonald v. Lynch, 59 Mo. 350; Williams v. Carroll County, 167 Mo. 9; Harris v. Board of Education, 2 Mo. App. 570; Davis v. Krum, 12 Mo. App. 279; Lyle v. Shinnebarger, 17 Mo. App. 66; Hanson v. Jones, 20 Mo. App. 595.

— Eon. John T. Moore, Judge. This case originated before a justice of the peace and for that reason a demurrer is never allowable in it at any stage of the proceedings either before the justice or in an appellate court. Wendleton v. Kingrey, 110 Mo. App. 69; R. S. 1899, sec. 591; Lumber Co. v. Schuler & Muench, 59 Mo. App. 97; Martin v. Creech, 58 Mo. App. 393; Kane v. Dauernheim, 51 Mo. App. 636.

<p>Original Proceeding by Writ of Certiorari to the St Francois County Court.</p>

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. The verdict is not against the weight of the evidence. There was substantial evidence to support it. There was a clear and sharp dispute as to the facts and it was for the jury to pass upon the weight of the evidence and the credibility of the witnesses. Harvey v. Reynolds, 75 Mo. App. 86; Hanson v. Russell, 75 Mo. App. 110; Downing v. Railroad, 70 Mo. App. 657; Winston v. Wales, 13 Mo. 569; State v. Anderson, 19.

— Eon. J. O. Sheppard, Judge. The testimony of defendant’s agent, Busby, shows that he knew the consignee was in charge of the car set out upon the unloading track of the defendant company; to use the agent’s own language, referring to the consignee, “He was supposed to be there.” This notice was equivalent to knowledge of plaintiff’s danger, or, to Say the least that could be said, was notice enough to put a prudent man on the alert, and is sufficient.

— Eon. J. O. Sheppard, Judge. The court erred in refusing to give to the jury instruction numbered 3, requested by the defendant. It was the province of the jury to say whether, under all the evidence in the case, it was necessary that the point where plaintiff’s animal got upon the track should be left unfenced for a depot grounds for the defendant. Acord v. Eailroad, 113 Mo. App. 84; Smith v. Eailroad, 111 M'o. App. 414; McGuire v. Eailroad, 113 Mo.

Louis City Circuit Court. — Hon. Robert M. Foster, Judge. When a case is sent by change of venue from one justice of the peace to another, a judgment rendered by the latter, in the cause, against one of the parties who had not been served with notice in like manner as an original writ of summons is required to be served, and who has not waived such service by voluntarily entering his appearance in the case, is premature and irregular.

— Eon. Chas. D. Stewart, Judge. 1. There is no averment in the petition that defendant failed to furnish the cars within a reasonable time after application made for them, or that there was an agreement to furnish bedded cars, or that cars were to be furnished at any particular time, or to deliver the stock for any particular market.

— Hon. Henry G. Riley, Judge. Statement. — This is an action against defendant as a common carrier, for its failure to deliver an express package consigned to plaintiff, at Vanduser, containing $500 in silver coin. Plaintiff is a banking corporation, doing business at Vanduser, and defendant is an express company and as such a common carrier of goods, wares, money, etc., for hire, and, at the time of the transaction involved, had an office and agent at Vanduser.

— Hon. Jas. T. Neville, Judge, On the evidence adduced by plaintiff and on the whole evidence a verdict should have been directed for defendant. A. The pleadings tender issues different from the issues raised by the evidence adduced on behalf of plaintiff. B. The evidence of physical conditions shows that it was impossible for the alleged accident to have occurred as detailed by plaintiff and her witnesses.

<p>Appeal from the Scotland Circuit Court.— Hon. Chas. D. Stewart, Judge.</p>

Writ of Error to the St. Louis City Circuit Court.— Hon. W. M. Kinsey, Judge. The promise- of the defendant was to accept a draft drawn for the Bailey cattle. The testimony shows that the defendant refused to accept the draft drawn for the Bailey cattle. The evidence conclusively shows an oral agreement to accept Hobson’s draft drawn for the purchase of the cattle. Plaintiff cannot recover upon this oral promise. R. S. 1899, sec. 143; see Sess.

Louis City Circuit Court. — Hon. Geo. H. Shields, Judge. The court erred in refusing plaintiff leave to file amended statement of its cause of action and sustaining defendants’ motion to dismiss.

Louis City Circuit Court. — Hon. George H. Shields, Judge. Defendants’ demurrers to the evidence offered at the close of plaintiff’s evidence in chief should have been sustained by the court. Stepp v. Railway, 85 Mo. 229; Brown v. Railway, 20 Mo. App. 226; Anderson v. Box Co., 103 Mo. App. 382; Pohlmann v. Am. Car & Fdy. Co., 123 Mo. App. 219. Defendants’ demurrers offered at the close of all the evidence should have been sustained by the court.

— Hon. O. A. Mosmrn, Judge. (1) The court erred in giving defendant’s peremptory instruction, because there was evidence which should have been submitted to the jury, tending to show that the loss was due to defendant’s negligence. That defendant’s officers and servants knew or could have, known of the approach of the flood in time to have saved the goods. Davis v. Railroad, 89 Mo. 347; Pinkerton v. Railway, 117 Mo. App. 288; Railroad v. Beck (Pa.), 11 Am. St. R. 924.

— Sou. O. A. Mosman, Judge. (1) The policy sued on contained this condition: “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void'if the insured now has or shall hereafter make or procure any other contract of insurance, whether valued or not, on property covered in whole or in part by this policy.” This policy condition has always been upheld by our courts. Barnard v. Insurance Co., 27 Mo.

— Hon. Henry M. Barney, Judge. (1) The ordinance authorizing the work referred in two sections to the specifications on file in the engineer’s office. ■ The undisputed evidence of Engineer Rackliffe, shows that the contract and specifications on file at the time of the passage constituted one document and that after the passage of the ordinance bidders bid with reference to this entire document, and it was therefore a part of the ordinance.

— Hon. Hat. M. Shelton, Judge. (1) Our statute provides a complete scheme for grading public roads; clearly set forth in Acts of General Assembly, approved March 26, 1908, secs. 1 to 12 inclusive, at pages 118, 119, 150. (2) The grading of the public road, by Williams, one of the plaintiffs herein, was an attempt on his part, to exercise the power of eminent domain, which can only be done by a strict compliance with the statute.

— Eon. G. A. Denton, Judge. Statements of deceased against his interest, when in the nature of admissions, made in connection with and explanation of, acts of the deceased, are competent evidence. . Stewart v. Glenn, 58 Mo. 481; Winn v. Corey, 48 Mo. 346; Obuchon v. Boyd, 92 Mo. App. 416; Bank v. Ragsdale, 171 Mo, 168; Klofer v. Levi, 33 Mo. App. 322; Martin v. Jones, 59 Mo. 181; Looker v. Davis, 47 'Mo. 140; Emmerson v. Pirón, 151 Mo. 107.

— Hon. Jno. P. Butler, Judge. (1) An injunction cannot have a retro-active effect and where an act has been done, injunction is not the proper remedy and in this case the band stand having been completed' at the time that the suit was brought, injunction will not lie to restrain it or compel its removal.

— Eon. Eenry M. Barney, Judge. (1) Defendant’s demurrer should have been sustained for the reason that plaintiff was guilty of contributory negligence. Cowen y. Kansas City, 108 M'o. 394; Baker y. Railroad, 122 Mo. -550. (2) Defendant’s demurrer should haye been sustained because the evidence shows the sidewalk complained of was not defective. Fairgrieve v. Moberly, 39 Mo. App. 37; Grossenbach y. Milwaukee, 65 Wis. 31.

— Hon. Alonzo D. 'Burnes, Judge. (1) The decision of the appellate court on a former appeal furnishes the law by which a subsequent appeal is to be determined. McKinney v. Harral, 36 Mo. App. 377; Baker v. Railroad, 147 Mo. 140 { Burk-holder v. Henderson, 78 Mo. App. 287; Hamilton v. Marks, 63 Mo. 167.

— Hon. Nat M. Shelton, Judge. (1) The court erred in refusing to direct a verdict for defendant on plaintiff’s claim for personal injuries and in refusing defendant’s instructions 2 and 3. Bruce v. Railway, 116 S. W. 447; Richmond y. Railway, 133 Mo. App. 463; Crawford y. Stockyards Co., 114 S. W. 1063, top col. 1, by Valliant, C. J., and cases cited; 215 Mo. 414. (2) The court erred in giving plaintiff’s instruction 1.

— Eon. Alonso D. Burnes, Judge. (1) There being no competent probative evidence of the measure, or amount, of damages, the demurrer, at the close of the whole case, should have been sustained. Dunham v. Joice, 129 Mo. 5; Hite v. Railroad, 130 Mo. 132; Hunt v. Railroad, 89 Mo. 607; Champagne v. Harney, 189 Mo. 709. (2) Instruction No. 3 on behalf of plaintiff erroneously states the measure of damages.

— Eon. Jas. E. Goodrich, Judge. (1) - Covenants in a deed are separate from the conveying part and are personal in their nature. Rawle, sec. 57; Sumner v. Williams, 8 Mass. 162; 11 Cyc. 1044; Poison v. Stewart, 167 Mass. 211. (2) The contract was made and executed in this State, and between citizens of this State; therefore the law of this State determines what covenants are in the deed, the effect to be given them, and the measure of damages for their breach.

— Eon. Wm. E. Martin, Judge. (1) The defendant could not be held liable for the alleged misconduct of the brakeman unless the brakéman was acting within the scope of his authority. This the plaintiff did not prove, and therefore the court erred in refusing the defendant’s demurrer to the evidence and in giving the plaintiff’s instructions, and in refusing to grant a new trial.

— Hon. F. Ü. Johnston, Judge. (1) The motion for judgment should have been sustained. R. S. 1899, secs. 3027, 3028 and 6300. (2) The motion for new trial should have been sustained. Land Co. v. Quinn, 172 Mo. 563. (3) The court should have sustained the motion in arrest of judgment. Sturgeon v. Hampton, 88 M'o. 203.

Lawrence Circuit Court. — Eon. F. O. Johnston, Judge. (1) The motion for judgment should have been sustained. R. S. 1899, secs. 3027, 3028, 6300. (2) The motion for new trial should have been sustained. Land Oo. v. Quinn, 172 Mo. 563. (3) The court should have sustained the motion in arrest of judgment. Sturgeon v. Hampton, 88 Mo. 203.

— Hon. L. B. Woodside, Judge. (1) Plaintiff’s petition states no cause of action. Injunction will not lie to restrain tbe application of public funds, unless tbe expenditure will be illegal. Black v. Ross, 37 Mo. App. 250. Courts will not restrain by injunction tbe doing of any discretionary act, in a particular manner. Tbe court bad no right to interfere with tbe board’s discretion in establishing ward or high school. State ex rel. y. Johnes, 155 Mo. 570.

— Eon. James T. Neville, Judge. (1) In tbis case the evidence was ample to submit to the jury the question whether the presumption of gratuity, which goes with the family relation, was overcome by proof of an agreement for compensation for the service rendered by plaintiff. Evidence to show that the recipient of the service intended to pay for the same and that the servitor expected pay, has always been held sufficient to establish such an agreement. Fry v. Fry, 119 Mo.

— Hon. F. G. Johnston, Judge. (1) A corporation in this State has the same power to make contracts, oral or written, through its officers in charge of its business, as an individual would have, unless prohibited by statute in order to carry on its business. Vogeler v. Punch, 205 Mo. 558; R. S. 1899, sec. 974; Eosenbaum v. Gilliam, 101 Mo. App. 126; Eugene Lungstrass v. German Insurance Company, 57 M’o. 107; Taussig v. Eailway, 166 Mo. 28.

— Hon. Haywood Scott, Judge. (1) Evidence in support of a witness’ character for truth and veracity offered before any impeaching testimony is introduced, is premature and should be excluded. State v. Cooper, 71 Mr. 436; State v. Thomas, 78 Mo. 327; Alkin Grocer Co. v. Tagart, 78 Mo. App. 166; Gutzwiller v. Lackman, 23 Mo. 168; Yawter v. Hullz, 112 Mo. 633; Fulkerson v. Murdock, 53 Mo.

— Eon, Argus Cox, Judge. (1) Whatever rights, if any. of removal of the fence may have existed in favor of defendant as against his prior landlord, Lewis, yet plaintiff as purchaser of the realty by deed from Lewis, without knowledge of such right, if any, existing in favor of the defendant, took the realty and all fencing attached thereto, free from such right, if any, of the defendant.

— Hon. Haywood Scott, Judge. (1) The court erred in overruling plaintiff’s application for change of venue. Secs. 818, 821 and 822, Revised Statutes 1899; Corpenny v. City of Sedalia, 57 Mo. 88; Douglass v. White, 134 Mo. 228. (1) The court did not err in overruling plaintiff’s application for a change of venue. State v. Davis, 203 Mo. 616; Railway v. Holladay, 131 Mo. 440; Walker v. Evans, 98 Mo. App. 301.

■ Appeal from Jasper Circuit Court. — Hon. Henry L. Bright, Judge. (1) The court over the objection and exception of defendant permitted plaintiff to show what the meaning of the term “macadam” was at the time the contract was entered into. The contract is not ambiguous and it was the duty of the court to construe the contract. Ford v. Dyer, 148 Mo. 541’; Chapman v. Railroad, 114 Mo. 542; Greason v. Railroad, 112 Mr. App. 129.

— Hon. F. C. Johnston, Judge (1) The statement of the plaintiff was not sufficient to warrant any judgment against the defendant. St. Louis Trust Co. y. American Real Estate and Iny. Co., 82 Mo. App. 260; Knapp v. Hanley, 108 Mo. App. 353. (2) Appellant’s abstract of the record and brief fully comply with the statute and rules of this court. The appeal was taken in the long form upon a full transcript. Sullivan y. Holbrook, 211 Mo. 104.

— Hon. F. 6. Johnston, Judge. (1) In permitting the witness, Fate Paris, to testify that defendant offered to pay plaintiff five dollars rather than have any trouble over the account here sued on, the court admitted evidence that is excluded on the grounds of public policy. Terry v. Taylor, 33 Mo. 323; Taussig v. Shields, 26 Mo. App. 318; Huettman v. Viesselman, 48 Mo. App. 582; Gorham v. Auerswald, 59 Mo. App. 77; Herman v. Railroad, 77 Mo.

— Eon. F. C. Johnston, Judge. (1) The state election for the nomination of candidates for public offices under the Act of 1907, is as much within the… Held: and at the time of commencing and trying this case, no adequate statute authorizing such contests, this proceeding is without authority and a nullity. Kehr v. City of Columbia, 116 S. W. 428. (2) In this State election contests are purely statutory, and, in the absence of such a statute, there can be no such contests.

— Eon. F. O. Johnston, Judge. (1) If the plaintiff relied on some ordinance duty to him from the defendant, which was being violated, it was his duty to plead the ordinance either in substance or effect, so that the court could determine what the duty was. Keane v. Klousman, 21 Mo. App. 185; Givens v. Van Studdiford, 86 Mo. 119; Nutter v. Railroad, 22 M'o. ,APP- 356; Moberly v. Hogen, 131 Mo. 19.

— Hon. F. O. Johnston, Judge. The filing of the motion to quash the information had the effect of withdrawing the plea of not guilty, the defendant was, therefore, tried without arraignment or plea, there being no plea, there was no issue, and the verdict rendered in the absence of such plea cannot stand. State v. Reeves, 97 Mo. ,672; State v. Copeland, 2 Swan 626; Hill v. State, 3 Yerg. 248.

— Hon. F. G. Johnston, Judge. (1) Plaintiff’s petition states a canse in equity entitling plaintiff to have the assets of the insolvent partnership subjected to the payment of the demand of the plaintiff in preference to the rights of the defendants to satisfy their demands against an individual partner. Pendleton v. Perkins, 49 Mo. 565; West v. Wayne, 3 Mo. 16; Luthy v. Woods, 1 Mo. App. 168; Burnham, Munger & Co. v. Smith, 82 Mo. App. 35; Kemper V. San Antonio Co., 118 Mo.

— Eon. F. O. J.ohnston, Judge. (1) The information filed August 15, 1907, charging a violation the -day of June, 1906, being void on its face, will not sustain a conviction. No motion to quash or plea of limitation was necessary, and the question can be first raised in this court. State v. Coleman, 186 M'o. 166. (2) The verdict was rendered at the August term, 1907, and judgment entered at the January term, 1908.

— Hon. F. G. Johnston, Judge. (1) Without any evidence, the grand jury found the material fact that the Local Option Law was in force in the county. Where there is no evidence the indictment should be abated. State v. Grady, 84 Mo. 224; State v. Faulkner, 185 Mo. 695. (2) Imprisonment being assessed by the court, the record must affirmatively show the presence of the defendant. State v. McClain, 156 Mo. 99; R. S. 1899, sec. 2656.

— Hon. Argus Cox, Judge. (1) The judgment under the plea in abatement should be reversed. Finley v. Bryson, 84 Mo. 664; Sandeen v. Railroad, 79 Mo. 278; Force v. Squier, 133 M'o. 306. (2) The second amended petition was a departure and stated a new cause of action. Drake v. Railroad, 35 Mo. App. 553; Lumpkins v.' Collier, 69 Mo. 170; Herman v. Gian, 129 Mo. 325; Scovill v. Glasner, 79 Mo. 449; Purdy v. Pfaff, 104 Mo.

— Hon. James T. Neville, Judge. (1) An indefinite hiring at a stipulated sum per year is a hiring at will, and may he terminated by either party at will. Held: and the commencement comes the first Thursday after the annual meeting. The annual meeting of the College — that is, the annual meeting of the Board — shall be held in Springfield, Missouri, on Wednesday immediately preceding the first Thursday in June. “Q. Does that vary from time to time?

— Hon. Haywood Scott, Judge. (1) Defendant’s demurrer at the close of plaintiff’s case should have been sustained. There is no evidence tending to show the explosion which caused the damage complained of was caused and preceded by the fire. Home Lodge Assn. v. Insurance Co., 110 N. W. 778; Biggs v. Insurance Co., 53 N. Y. 446.

— Hon. Argus Good, Judge. (1) An administrator with the will annexed may make a valid transfer of a promissory note. B aimer v. Sunder, 11 Mo. App. 454. (2) Before appellant Grimes can be defeated in this action it must be shown that his knowledge of defect or infirmity, if any, in the title of Burchett was such that his act in purchasing same amounted to bad faith. Session Acts 1905, secs. 56, 57, p. 250. (3) The fact of the indorsement of Mrs. Fleming to her son, Wm.

— Hon. Howard Gray, Judge. (1) The city of Carthage, being a city of the third class, has the power under the general welfare clause of its charter to enact the ordinance in question. R. S. 1899, sec. 5834; Lebanon v. Gordon, 99 Mo. App. 277; Green City v. Holsinger, 76 Mo. App. 567; St. Louis y. Schoenbusch, 95 Mo. 618; St. Louis v. Bentz, 11 Mo. 61; St. Louis y. Cafferata, 24 Mo. 94; Gallatin y. Tarwater, 143 Mo. 40.

— Hon. Hugh Dabbs, Judge. (1) The petition in this case does not state facts sufficient to constitute a cause of action. The only allegation of negligence in plaintiff’s petition is that of failing to cover the gutter. Gutters are constructed without covers in order that they may carry off surface water. There is no duty on a city to cover its gutters.

— Hon.. Haywood Scott, Judge. (1) In an action before a justice of the peace there must either he an itemized statement of account filed or some statement from which the defendant can learn upon what account he is sued and be sufficiently specific to bar another action. Freimuth v. Rudd, 8 Mo. App. 568; McDonough y. Daly, 6 M'o. App. 598; Patterson v. Lutz, 1 Mo. App. 134; Doggett y. Blanke, 70 Mo. App. 499; McCrary v. Good, 74 Mo.

— Hon. Nat. M. Shelton, Judge. The court erred in finding the issues for defendants. The note was admittedly without consideration. The finding and judgment of the court should have been for the plaintiffs on both counts. The note was a negotiable instrument, payable to the order of Edwin L. Hilbert and was transferred to defendants simply by delivery, without indorsement. It was therefore not negotiated to defendants.

— Eon. Nat. M. Shelton, Judge. (1) John C. Pierce, in his last will and testament, made and provided in item third of his will, that his estate should be converted into money and distributed to his heirs as theirs only “after the death of my said wife, and the payment of her lawful debts and funeral expenses.” The deceased, John C. Pierce, had the right to make the above provision in his will, and the same is payable as directed in his will.

<p>1. MATRIMONIAL AGENCY: Marriage Brokerage: Public Policy. A contract by one wishing to be married to pay for services in getting a husband by correspondence is against public policy and void.</p> <p>2. MARRIAGE BROKERAGE: Aid in Correspondence. The fact that the correspondence and effort to marry a particular person had begun before the agreement was made to pay for aid in the effort, does not affect its invalidity.</p> <p>3. MARRIAGE BROKERAGE: In Pari Delicto. The demand of public policy overcomes the objection of joint guilt and permits relief being granted against the marriage broker.</p> <p>4. UNCONSCIONABLE AGREEMENT: Correspondence. An agreement to pay one half of a livery stable stock and business worth five hundred dollars, for service in writing two letters, is unconscionable.</p>

— Son. C. A. Mosman, Judge. Where the circuit court specifies the grounds upon which it sustains the defendants’ motion for a new trial it is to be presumed in this court on appeal that the court’s action was founded alone on the grounds stated, and an appellant who appeals from an order granting a new trial is required to show in the first instance, error, only as to the grounds therefor set out in the record of the trial court.

— Hon. Walter A. Powell, Judge. Appellant is an Iowa corporation; it was organized and incorporated in March, 1897, under the provisions of an act of the Legislature of that State approved April 3,… Held: in the cases cited, that appellant was not such a fraternal society as could claim exemption from the provisions of the Missouri Statutes relating to suicide and misrepresentations, it has always held appellant to be a fraternal benefit society.

— Hon. A. D. Bv/rnes, Judge. Tbe defendant obtained its pro forma decree of incorporation on tbe 6tb of September, 1906. Tbe articles of association were filed and recorded in tbe recorder’s office that day and were filed in tbe office of tbe Secretary of State and a copy issued by that officer on tbe Stb of tbe same month. Its corporate existence was complete on tbe 8tb of September, 1906. R. S. 1899, sec. 1395.

— Son. Alonso D. Burnes, Judge. The evidence adduced in this case abundantly shows that the relation of parent and child existed between appellant and respondent. Under such circumstances appellant contends that the trial court committed a serious error against him in giving to the jury instruction numbered one, in behalf of respondent.

— Son. 'William C. Ellison, Judge. The court erred in refusing defendant’s demurrer offered at the close of plaintiff’s case and again at the close of all the evidence. Gibbs v. Railroad, 104 Mo. App. 276; Manning v. Railroad, 119 S. W. 464; Campbell v. Railroad, 121 Mo. 340; Erhart v. Railroad, 118 S. W. 657. There is no direct evidence in the record that the fire was communicated from defendant’s engine. No witness testified that it was.

— Eon. Alonzo D. Bwrnes, Judge. The debt evidenced by the judgment in favor of Elijah M. Groom was created before the defendant put on record his deed to the land known as the sixty-six acres. For that reason, neither defendant nor his grantee for him, could claim a homestead right therein. R. S. 1899, sec. 3622.

— Eon. A. E. Waller, Judge. (1) Tbe evidence established, beyond peradventure, that the clover huller 'did not do good work. This appears, not only from the testimony of plaintiff’s witnesses, but also from that given on the part of the defendant. So the judgment below cannot be sustained on the ground that the machine complied with the warranty. Miller Lock Co. v. Deihl Mfg. Co., 37 Pa. gup. Ct. 585.

— Eon. A. E. Waller, Judge. (1) The petition does not state a cause of action. The petition must be taken in connection with the statement of plaintiff’s counsel. Pratt v. Conway, 148 Mo. 291; O’Keefe v. United Railways, 124 Mo. App. 613; Oscanyan v. Arms Co., 103 U. S. 261. (2) And taken in connection with such statement, it does not state a cause of action.

— Hon. John P. Butler, Judge. (1) The evidence is insufficient to support the judgment on the petition for review, it not being shown that appellant was an unfit or improper person to have the care and custody of said minor child. Jennings v. Jennings, 85 Mo. App. 290; Brown v. Brown, 53 Mo. App. 453; Clarkson v. Clarkson, 22 M'o. App. 253; Messenger v. Messenger, 56 Mo. 337; Million v. Million, 106 Mo. App. 683; Cole v. Cole, 89 Mo.

<p>Appeal from Jackson Circuit Court. — Hon. Thos. J. See}wrn, Judge.</p>

— Hon. A. D. Burnes, Judge. The order appointing a receiver is erroneous for many reasons, including the following: (a) This is a suit on an alleged contract of purchase of lands. The contract is denied and the defendants are in possession of the lands. The respondent cannot legally oust the defendants, and get possession of this land, by the erroneous appointment, by the judge in vacation, of a receiver.

<p>1. CONVERSION: Pleading: Ownership: Possession. In an action for conversion of personal property if the petition merely states that the plaintiff was the owner, and does not allege possession or right to possession, it fails to state a cause of action and is fatally defective.</p> <p>2. INSTRUCTIONS: Right to Possession. Instructions should include the hypothesis of the plaintiff’s right to the possession, in an action for conversion.</p> <p>3. BRIEFS: Decision by Court. If a point is made hut not briefed as required by statute and rules of court, the court does not feel called upon to decide it.</p>

— Eon. G. A. Mosman, Judge. - (1) When Mrs. Greenard wrote these letters, paid the $300 and took possession of the land she became indebted to the Salvation Army in the sum of $2,000, payable in installments at the several times fixed in the letters. These amounts constituted an indebtedness which could have been collected by suit at law as they became severally due and payable according to the terms of the contract.

— Hon. A. H. Waller, Judge. (1) The court erred in not striking out defendant’s answer and counterclaim and in admitting evidence in support of the same. Both in the justice and circuit courts, defendant set up a counterclaim for $300, an amount in excess of the jurisdiction of the justice and it should have been stricken out. R. S. 1899, sec. 3936; Nenno v. Railroad, 105 Mo. App. 552; Brownfield v. Thompson, 96 Mo. App. 340.

— Eon. John P. Butler, Judge. (T) The statute is penal and a strict compliance With all of its provisions must he shown in order to sustain a recovery. R. S. 1899, sec. 1105; Barnett v. Railroad, 68 M'o. 56; Railroad v. Ziegler, 108 111. 304. (2) The giving of notice of an intention to build a fence is not required by the statute. McNear v. Railroad, 42 Mo. App. 14. (3) A notice to repair is the only notice required or allowed by the statute where there is an existing fence.

<p>Appeal from Buchanan Circuit Court. — Eon. Inician J. Eastin, Judge.</p>

— Hon. Lucian J. Eastin, Judge. (1) Defendant is entitled to a new trial by reason of the misconduct of plaintiff’s counsel in his argument to the jury. Norton v. Railway, 40 Mo. App. 647; McDonald & Co. v. Cash & Hainds, 45 Mo. App. 79; Haynes v. Trenton, 108 Mo. 133; Ritter v. Bank, 87 Mo. 576; Marble v. Walters, 19 Mo. App. 134; Gibson v. Ziebig, 24 Mo. App. 67.

— Eon. O. A. Mos-man, Judge. (1) The court erred in permitting the original cost price of the various musical instruments to be proven in the absence of any showing as to their condition at the time of the fire. The original cost price of an article is no criterion of its value. Flournoy v. Railroad, 44 Mo. App. 398.

— Eon. Lucian J. Eastin, Judge. (1) Plaintiff’s instruction one, is erroneous for the following reasons: It does not require the jury to find that the defendant had notice of the defect for a sufficient length of time to enable the city to have a reasonable length of time in which to repair the same.

— Hon,. C. A. Mosmcvn, Judge. Under the written contract of purchase, which was fully complied with by Philip Kneib, deceased, who paid the full purchase price; and under the covenants in the general warranty deed executed by the defendants in error, for and on account of said consideration and in pursuance of their written obligation so to do, there is no defense to this suit pleaded in the answer, or mentioned in the evidence.

— Eon. R. 8. Ryors, Judge. (1) The plaintiffs motion to strike out (the answer) confesses the facts (stated in said answer), and the only question, therefore, is, Do the facts stated (therein), constitute a defense? Wonderly v. Lafayette Co., 150 Mo. 647; Mfg. Co. v. Dawson, 77 Mo. App. 128. (2) The court erred in sustaining the motion of the plaintiff to strike out the answer of the defendant. (3) The motion to strike out the answer admitted all the facts therein stated.

— Hon. Hat. M. Shelton, Judge. (1) The contract between the plaintiffs and the city is severable and divisible. Johnson v. Duer, 115 Mo. App. 366; Excelsior Springs v. Ettenson, 120 Mo. App. 215; 7 Ency. of Law, pp. 95-7; Page on Contracts, secs. 1483-87.

— Eon. F. C. Johnston, Judge. (1) The court erred in the time of finding the breach of contract. It should have been declared to have been when the defendant first had notice- of the default, as the defendant had time then and it became his duty to go upon the market and get his tomatoes elsewhere. For the plaintiff would not be responsible for any loss which the defendant might have avoided by procuring tomatoes elsewhere. State v. Harrington, 44 Mo.

— Hon. F. O. Johnston, Judge. (1) Allegations of fact in motions do not prove themselves but must be supported by evidence. Dougherty v. Whitehead, 31 Mo. 225; State v. Brown, 119 Mo. 527. (2) The motion for judgment on the pleadings was in the nature of a demurrer to plaintiff’s reply. At any rate to the extent that it admitted all facts well pleaded in the reply. Sternberg v. Levy, 159 Mo. 617; Todd v. Railroad, 33 Mo. App. 110.

— Hon. L. iB. Woodside, Judge. (T) The assessment was valid. The constitution fixed the amount and date of the assessments, and the persons on whom it should be ordered. The directors had no discretion. The duty to order an assessment was purely ministerial and mechanical and could be delegated to the secretary. Insurance Co. v. Birnbaum, 116 Pa. St. 565; Benefit Assn. v. Robinson, 147 111. 138, 35 N. E. 168; Van Frank v. U. S. Ben.

— Hon. John T. Moore, Judge. (1) When goods are obtained through fraud, the vendor does not part, with his right to them. Kelley’s New Treatise for Justices and Constables (Ed. 1881), sec. 606; Plow Co. v. Wayland, 81 Mo. App. 305. (2) Although they may be in the hands of attaching creditors. Goodger v. Finn, 10 Mo. App. 226; Stein, Block & Go. v. Hill, 100 Mo. App. 38; Bidault v. Wales, 20 Mr. 546.

<p>1. APPELLATE PRACTICE: Criminal Case: Typewritten Record: Duty to Examine. In a criminal case, notwithstanding no printed abstract of the record or brief is filed by the parties, hut the state has, however, filed a complete typewritten trans-script of the case, it is the duty of the appellate court to examine the record, including all the motions and everything that was done in the trial court.</p> <p>2. CRIMINAL LAW: Plea in Abatement: Appeal by the State. The State cannot appeal from the judgment of the court sustaining a plea in abatement to an indictment.</p>

— Hon. F. O. Johns: ton, Judge. (1) The reasonableness or unreasonableness of the action of the council cannot be questioned, unless fraud be shown and none was pleaded in this case. Akers v. Kalkmeyer, 97 Mo. App. 520; Miller v. Anheuser, 2 Mo. App. 168; State ex rel. v. Birch, 186 Mo. 221; Hernán v. Schulte, 166 Mo. 409. (2) The burden in cases of this character is on plaintiff and the evidence must be confined to the allegations in the petition.

— Eon. F. O. Johnston, Judge; (1) A court commits reversible error where it strikes out an answer filed out of time, where the default has not been acted upon and where the defendant has a real defense to make and there is nothing to show that the failure was due to improper motives, and especially would the court err where, as in this case, there was no delay occasioned to the plaintiff by such failure or the slightest inconvenience, whatever, and the answer was filed by…

— Hon. David E. Blair, Judge. (1) Where the agent is required by the terms of his contract with the principal to furnish the purchaser within a fixed period of time, he must furnish the purchaser within that time. Page & Austin v. C. C. Griffin, 71 Mo. App. 524; LaForce v. Washington University, 106 Mo. App. 517. (2) It is material error to give the the jury conflicting instructions. Edmondson v. Jones, 96 Mo. App. 83; Hoover v. Merc. Town Mutual, 93 M’o. App.

— Hon. Hugh Dabbs, Judge. (1) Actions of this character are barred unless commenced within five years after the cause of action accrued. R. S. 1899, sec. 4273; Thomas y. Hurst, 73 Fed. 372; Bouney y. Stoughton, 122 111. 536, 13 N. E. 833. This section is applicable to all civil actions, whether at law or in equity.

— Hon. A. B. Lovan, Special Judge. The question of contributory negligence is generally one for the jury to determine from the circumstances of the case. But where the facts are undisputed, and but' one reasonable inference can be drawn from them, the question is one of law for the court and the case should be taken from the jury.

— Eon. John T. Moore, Judge. (1) Instruction No. 1 is condemned by our appellate courts for the reason it does not direct the jury as to the measure of damages but leaves them in the dark on this matter. Schwab v. Railway, 106 Mo. 74; Goss v. Railway, 50 Mo. App. 614. It is error to instruct the jury to assess damages at whatever sum they may believe she has sustained. Flynt v. Railroad, 38 Mo. App. 94.

— Eon. A. H. Waller, Judge. (1) The certificates pointed out where the fund should go in the contingencies which happened, namely, to the legal representatives of the insured. The words “legal representatives” were employed in the certificates in the sense of executors and administrators. Loos v. Insurance Co., 41 Mo. 538; 3 Am. and Eng. Ency. Law (2 Ed.), 975; 18 Am. and Eng. Ency. Law (2 Ed.), 813; Insurance Co. v. Bank, 121 Mo.

— Hon. Wm. O. Ellison, Judge. (1) Credit for the services rendered in this case, was not originally extended to Abner Smith, whose estate is sought to be charged. This all the evidence clearly shows. Such being the case the alleged promise or contract made by him could not be enforced, because it was oral, and collateral, and clearly within the Statute of Frauds. Rottman v. Fox, 25 Mo.

<p>1. CARRIERS: Freight: Damages: Notice. Provision in shipping contracts requiring notice of damages to he given the c’arxier will be enforced only when reasonable and where the circumstances of the particular case justify their strict enforcement to protect the carrier against possible fraud or imposition.</p> <p>2. -: -: -: -: Reasonable Time. Where cattle were placed in a separate pasture and were open to inspection by defendant during the time that plaintiffs claim was being investigated, and the extent of the damage could have been ascertained after notice was given, and where the full extent of the damage could not be determined within the time limited for giving notice, plaintiff is not barred from recovery by a failure to give notice until twenty-seven days after the delivery of the cattle at destination, although the shipping contract provided for notice one day after such delivery.</p> <p>3. -: -: -: -: Requirement for Notice. The requirement of notice may be invoked as a check against imposition and not as a sword to defeat an adversary without regard to the justice of merits of his case.</p> <p>4. -: -: -: Delay: Negligence. Where proof of delay will not support an inference of negligence oni the part of the carrier, but very slight evidence of negligence in addition to such proof, is sufficient for such inference.</p> <p>5. -: -: -: —-: -: -: -: -: -: -. Where a carrier accepts goods for shipment knowing that transportation will be delayed by shortage of coal or trainmen. without notifying the shipper or stipulating against delays from such causes, it is liable for damages caused therefrom.</p> <p>6. -: -: -: -: -. Where a delay of nearly three hours occurred in switching cars of exhausted and suffering, cattle at a station where they were to be unloaded and fed, a fair inference of negligence arises.</p> <p>7. -: -: -: -: Cause. Where there was evidence that the cattle were in condition to stand the transportation if accomplished in the usual time and manner and that they arrived at their destination in an exhausted and ■weakened condition, and that seven died en route and twenty more died after arrival, the cause of the damage was properly left to the jury under appropriate instructions.</p> <p>8. -: -: -: Release: Consideration. At the time of loading the cattle plaintiff signed a shipping contract reciting that the tariff rate, which was charged plaintiff, was less than the rate imposed at shipper’s risk, and containing a stipulation releasing defendant from any damages that had accrued to him by any written or verbal contract prior thereto. Held that the recital in the shipping contract that the tariff rate, charged plaintiff, was a reduced rate was, in the absence of contrary proof, conclusive,- and constituted a sufficient consideration for the release of prior claims for damages.</p> <p>On Rehearing.</p> <p>9. -: -: Shipping Contracts: Rates. The “tariff” rate is the highest rate a carrier can charge and a recital in the shipping contract that the “tariff” rate was charged will control over a recital that the rate was “less than the rate charged for shipments transported at carrier’s risk.” [Following George v. Railroad, 214 Mo. 55.]</p> <p>10. -: -: -: Hepburn Act. Under the express provisions of the Amendment to the Interstate Commerce Act Known as the Hepburn Bill, which went into effect August 28, 1906, no contract the carrier may make with the shipper, for interstate transportation of freight, whether supported by consideration or not, shall have the effect of releasing any part of the carrier’s common law liability.</p> <p>11. -: -: Damages: Release. A shipper claimed that cattle were damaged while in the yards waiting for cars which the carrier had failed to furnish on the date promised; upon the arrival of the cars and the loading of the cattle the shipper signed a shipping contract reciting that the rate charged was the “tariff” rate, that the rate was less than the rate charged for transportation at carrier’s risk and containing a stipulation releasing the carrier from all prior claims for damages; the shipment was interstate. Held, that the stipulation for release of damages was void because without consideration and also as being in contravention of the express provisions of the Hepburn Bill.</p>