Volume 140 — Missouri Reports

— Hon. John W. Henky, Judge. (1) There was no evidence to take the case to the jury. No negligence was proven against the defendant. The appliance in question was one which the plaintiff could have used with entire safety, had he hut looked where he was going. There is not a scintilla of evidence in the record that it was not safe. But if it was negligent to use the scaffolding complained of by the plaintiff, he assented to its use by going to work upon it.

— Hon. W. M. Robinson, Judge. (1) It was a lease, not a license. Hobart v. Murray, 54 Mo. App. 256. (2) The lease contained a covenant to work continuously, and in good faith, and also to sink a shaft two hundred feet deep upon the land within one year, and upon a failure to do either of these things the lease was to be'forfeited and the plaintiff could enter. The remedy of the plaintiff was ejectment instead of an actual entry.

— Hon. W. W. Wood, Judge. (1) There was error in admitting in evidence section 701 of the Eevised Ordinances. This section had no application in the case of a vehicle meeting a street railway train. Booth on Street Eailways, sec. 302; Spurrier v. Bailroad, 3 Wash. -659; Began v. Bailroad, 15 N. Y. 380. (2) There was error in admitting proof that defendant was notified of the fact that Looney was a drinking man, and that he was in the habit of drinking before the accident.

— Hon. John A. Ho ok ad at, Judge. (1) The court erred in admitting the record copy of the deed of trust from Peter Haden to Goodding, trustee. The best evidence was the original deed itself, and a copy was not admissible till the original was first proven to be lost or destroyed. The plaintiff testified that he had the deed of trust among his papers somewhere, and that he had only looked for it once, and that was four months before this suit was brought.

Louis City Circuit Court. — HoN. L. B. VALLI ANT, Judge, , (1) There is no finding of facts that plaintiff was in the open, actual, notorious, hostile, adverse, and continuous possession of the real estate described in the petition, at the time of the institution of this suit, the twelfth day of July, 1894, and for one year previous thereto, and the'court erred in failing to make such finding.

Louis County Circuit Court. — Hon., Rudolph Hiezel, Judge. (1) The court erred in admitting as evidence the opinions of James E. Lavin, and Edwin C. Carlin, as to the effect of the draft caused by a rapidly moving train. They were not experts, nor is it shown that they possessed any special knowledge of the laws of physics. Their experience was only such as comes to every individual. Lawson on Expert Evidence, 195, 196; Naughton v. Stagy, 4 Mo.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) Appellant paid $3,750 to respondent for its lease and to Martha A. Beard for her equity and as a part payment to respondent on its mortgage notes. Where there has been a partial payment of the purchase money, or the vendee has placed valuable improvements, the action of ejection does not lie. The vendor has other remedies.

Mandamus. (1) The question of jurisdiction was settled by the record of the trial court, and what was done subsequent to the time the order was made by that court granting an appeal is entirely immaterial. Baldwin v. Fries, 103 Mo. 286; Bennett v. Railroad, 105 Mo. 644.

<p>1. Negligence: proximate cause. Where the evidence discloses that a dangerous appliance relied on by plaintiff as the basis of defendant’s negligence was not the proximate cause of the injury, the trial court should set aside the verdict of the jury if for plaintiff.</p> <p>§. -: CARE IN CONSTRUCTION: MUTUAL OBLIGATIONS. Street Car companies are required to so construct their cars that passengers may ride thereon and alight therefrom in safety; but this does not mean that the courts can dictate that they shall follow a certain pattern of construction, or that the cars shall be so made that injury to passengers shall be absolutely impossible. The company must exercise reasonable precaution to prevent accidents to passengers, but it does not become insurers of their safety; on the other hand, passengers must use the ear with reasonable circumspection and care.</p> <p>3. -: LONG use OF AN APPLIANCE WITHOUT AOOIDENT. While a long and general use of an appliance on a street car without accident will not exempt the party from liability when the appliance does cause an accident, yet the long and successful use of a like appliance by this and other companies without accident, and the further fact that this appliance in the particular ease is visible to all passengers, should exempt the company from liability for negligence in its use, on the ground that the occurrence of the accident is one so rare as to be unexpected and so unexpected that a reasonable precaution would not have anticipated it. Unless there is something in the construction or use of the appliance to suggest to the company that it is or will be dangerous to passengers, the company is not guilty of negligence in using it.</p> <p>(Per Barclay, O. J., and (Jantt, Macfarlane, Burgess and Brace, JJ.)</p> <p>4. Appellate Practice: appeal from order setting aside ver- . dict. Plaintiff had Judgment for damages in an action for personal injuries. On defendant’s motion, a new trial was granted on the ground that the verdict should have been for defendant. One of the reasons of the motion was that the verdict was against the weight of evidence; held, that as the order for a new trial was within the ■proper bounds of the discretionary power of the circuit court to determine the weight of evidence, the order would be affirmed, without going further into the merits of the case on plaintiff’s appeal.</p>

— Hon. D. P. Stratton, Judge. The only method whereby a city of the fourth class can contract with any person, company, or association to furnish water for the use of the city and its inhabitants is “by ordinance.” R. S. 1889, sec. 1589. (2) Where the plaintiff is an assignee, the petition must allege the fact of assignment. 1 Estee’s Pleadings, p. 255; Prindle v. Caruthers, 25 N. Y. 426; White v. Brown, 14 How. 282; Adams v. Holley, 12 How. 330.

Louis Circuit Gou/rt. — Hon. Jacob Klein, Judge. (1) A person suing under the second section of the damage act (R. S. 1889, sec. 4425, et seq.) “must, both by pleading and proofs, bring himself within its terms.” McIntosh v. Railroad, 103 Mo. 131; Barker v. Railroad, 91 Mo. 86; McNamara v. Slavens, 76 Mo. 329; Gibbs v. City of Hannibal, 82 Mo. 143; Sparks v. Railroad, 31 Mo. App. Ill; Dulaney v. Railroad, 21 Mo. App. 597. (2) First.

— Hon. William W. Ruciiee, Judge. (1) The description of the land and the judgment should correspond with the petition, or at least it shpuld appear that the premises recovered are within the boundaries of the description contained in the petition.

— Hon. 0. L. Dobson, Judge. (1) The allegation of agency in plaintiff’s petition is not supported by the evidence. Tyler v. Parr, 52 Mo. 249;. Gelatt v. Ridge, 117 Mo. 553; Egger v. Nesbitt, 122 Mo. 667. (2) The proof failing to conform to the allegations in the petition, plaintiff can not recover. Rutledge v. Railroad, 110 Mo. 312; Williams v. Railroad, 112 Mo. 463; Halpin v. Manny, 33 Mo. App-. 388.

—Hon. James E. G-reen, Judge. (1) The verdict of the trial court was against the law. Laws 1893, 1894, art. 4, sec. 25, p. 70. (2) The statute will be construed in its ordinary plain meaning, with reference to the time fixed by it when one seeking an office shall have paid his taxes, etc. Laws 1893, art. 4, sec. 25, p. 70; E. S. 1889, sec. 6570. (3) It was error of the court to grant the writ to show cause. 2 Dillon, Mun. Corp. [4 Ed.], sec. 900.

- Appeal from Monroe Circuit Court. — Hon. Reuben F. Roy, Judge. (1) Wills are to be construed as a whole. Partridge v. Gavender, 96 Mo. 456. (2) The intention of the testator as gathered from a consideration of the whole will is the polar star to guide in the interpretation. Small 'v. Field, 102 Mo. 122. (3) Every word must be given a meaning if possible. Redfield on Wills [4 Ed.], 431. Rule 16 given by Jarman as quoted by Redfield on Wills, page 427; 29 Am. and Eng.

— Hon. Cykus A. Anthony, Judge. (1) The court in its last judgment having found the facts and incorporated same in the judgment this court will review same and pass upon their sufficiency to sustain its judgment, although no motion for a new trial was filed. Land Company v. Brets, 125 Mo. 418.

— Hon. James D. Fox, Judge. (1) Appellant’s motion for discharge filed September 14, 1896, and also the one filed March 14, of the preceding term, ought to have been sustained. These were the elapsed and existing terms without trial. Four terms held and no trial. There was neither cause nor grounds for the delay. This was not the ‘‘speedy trial” prescribed by the Constitution, and fixed by sections 4222, 4223, and 4224, Revised Statutes of Missouri 1889.

— Hon. Andrew Ellison, Judge. (1) The common law right of the surviving partner to wind up the business of a partnership is still in force in Missouri.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The testimony of Lee English, identifying the property, the value of which was given in the assessment return, was competent. It is always competent to identify property. Best’s Principles of Evidence (Chamberlain), p. 231, note 2; State ex rel. Ziegenhein v. Baiboad, 117 Mo. 1-9.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) An assignee for the benefit of creditors takes the assigned estate subject to all tbe equities existing at the time of the assignment; his rights are no greater than were those of the assignor. Peet v. Spencer, 90 Mo. 388; State v. Bowse, 49 Mo. 593; Jacobi v. Jacobi, 101 Mo. 507; Green v. Conrad, 114 Mo. 664. (2) Insolvency creates an equitable right of set off where it would not otherwise exist.

Louis City Circuit Court. (1) The interpretation placed upon the contract by the petition is the only one consistent with the words and provisions thereof, and the only one which makes it reasonable and just as between the parties. ■Goode v. St. Louis, 113 Mo. 257; The Huse-Loomis Ice (1) The averments of the petition as to the legal effect of the contract sued upon are not admitted by the demurrer. (2) The petition does not show any breach of the contract by defendant.

— Hon. H. M. Ramey, Judge. (1) An agent acting in good faith for his principal whose name is disclosed to a third person with whom he may be dealing as such agent, can not be held personally liable to such third person, in the absence of a special agreement on the part of such agent to become individually responsible. Mechem on.Agency, secs. 546 and 555.

— Hon. D. P. Stratton, Judge. (1) Appellant told plaintiff he had a good title. That was the expression of an opinion based upon the fact that he had deeds for the land and nothing more, and no injury resulted to plaintiff and none was threatened. Anderson v. McPike, 86 Mo. 293.

<p>Appellate Practice: non-compliance with bules of court. Consolidated rules 15 and 16 of the Supreme Court require the appellant to file “an abstract or abridgment of the record setting forth so much thereof as is necessary to a full understanding of all the questions presented to this court for decision.’’ When these rules are not complied with, a motion to dismiss the appeal will be sustained.*</p>

Louis Court of-Criminal Correction. Hon. David Murphy, Judge. (1) The facts show a “sale’7 at Kansas City, Kansas, and not in the city of St. Louis. Also that the “sale” was made by Swift & Company, and not by the defendant. The case of State v. Wingfield, 115 Mo. 428, settles the point that in the circumstances the sale is not made in the city of St. Louis. It would make no difference if Newell had been the agent of Swift & Company, which he was not.

Louis City Circuit Court. (1) Respondent could enter the demised premises to make repairs, appellants consenting. 12 Am. and Eng. Ency. of Law, sec. 683. He is liable for such damage as is the natural consequence of his wrongful act. Christy, 24 Mo. App. 277, 278. (2) It being his duty to provide a vault, respondent can not escape liability on ground that the work was being done by his contractor.

— Hon. E. M. Hughes, Judge. (1) In order to take a ease out of the statute of frauds upon the ground of part performance of a parol contract, it is not only indispensable that the acts done should be clear and definite and inferable exclusively to the contract, but the contract should also be established by competent proofs to be clear, definite and unequivocal in all its terms. 1 Story, Eq.

— How. E. M. Hughes, Judge. (1) The deed is said to have been made the day the will was made, September 11,1886. The will after his death was offered for probate and failed to be probated for the reason one of the witnesses thought at the time he signed the will he was not capable of making a will or conveying, in any way, his property.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) The statute granting the right of change of venue on account of the undue influence of the opposite party, where the application is sufficient, is mandatory and peremptory. R. S. 1889, sec. 2262; Bowling v. Allen & Co., 88 Mo. 299; Railroad v. Fowler,' 113 Mo. 469; McGee et al. v. Porter, 14 Mo. 614. (2) Courts are not hound to consult the convenience of attorneys in making change of venue.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) Defendant’s affidavit for continuance strictly followed and complied with the provisions of the statutes of Missouri in such case made and provided. R. S. 1889, sees. 2124, 2126, 2127.

Louis County Circuit Court. — Hon. Rudolph Hikzel, Judge. (1) The lease under which appellants hold possession of the real estate, is a lease for a term of three years, with an implied covenant of quiet enjoyment which runs with the land, and the lessor could not avoid it by a voluntary conveyance to respondents. Hamilton v. Wright, 28 Mo. 199. Appellants’ lease being recorded prior to respondents’ warranty deed, the latter took title subject to appellants’ lease.

— Hon. Paris C. Stepp, Judge. (1) None of the numerous eases in which section 8922 has been construed by this court sustain the action of the trial court. Berry v. Kartsell, 91 Mo. 132; Moore v. Moore, 51 Mo. 118; Entwhistle v. Feiglmer, 60 Mo. 214. (2) The wife was competent as to any fact which she did not learn from her husband. Stein v. Weidman, 20 Mo. 17; 29 Am. and Eng. Ency. of Law, 630. Her testimony as to what she saw would violate no rule of marital confidence.

Louis City Circuit Court. — Hon. Leroy B. Vallí ant. Judge. (1) The fact that this case was retried in accordance with the principles announced in the decision of this court (117 Mo. 61) is no reason why the court should not review its former adjudication, and if it is manifest that the principles of law involved have been incorrectly decided and that great injustice will be done to one of the parties by adhering to its opinion, reverse such decision and render the judgment…

— Hon. Henry 0. Riley, Judge. (1) Contestes’s motion for an order on the county clerk to open and recount all of the ballots cast for him at Appleton and Eriedheim precincts should have been sustained. (2) In his notice contestor objects to the vote of Hy. Belderman (Bueltemann) who is alleged to have voted for contestee.

<p>Appeal from Gape Girardeau Circuit Court. — Hon. Henry 0. Riley, Judge.</p>

<p>Appeal from Cape Girardeau Circuit Court. — Hon. Henry 0. Riley, Judge.</p>

<p>Appeal from Cape Girardeau Circuit Court, — Hon. Heney 0. Riley, Judge.</p>

<p>Appeal from Gape Girardeau Circuit Court. — Hon. Heney C. Riley, Judge.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge.' (1) Payment of water license under threat of turning off the water in case of refusal is payment under compulsion, and if the charge is excessive the excess may be recovered. Westlake v. St. Louis, 77 Mo. 47. (2) Under section 1698 of the Revised Ordinance of 1887 but two things are necessary to bring the water taker within the price of one cent per one hundred gallons, viz.: First.

— Hon. E. L. Scarritt, Judge. (1) An instruction which assumes the existence of facts which are put in issue by the pleadings is always erroneous. Dulaney v. Defining Co., 42 Mo. App. 659; Dowling v. Allen, 88 Mo. 293; Peck v. Ritchey, 66 Mo. 114; Merritt v. -Given, 34 Mo. 98; Matthews v. Railroad, 26 Mo. App. 75; Siegrist v. Arnot, 10 Mo. App. 197; Bank v. Crandall, 87 Mo. 208; Comer v. Taylor, 82 Mo. 341; Wilkerson v. Thompson, 82 Mo. 317; Meriwether v. Railroad, 45 Mo.

— HoN. James T. Neville, Judge. (1) The presumption should be indulged that Dollison had in his mind a grantee living to whom he could deliver the deed when he made it. Identity of name is grima facie identity of person. Flournoy v. Warden, 17 Mo. 435; State v. Moore, 61 Mo. 276; Gitt. v. Watson, 18 Mo. 274; Globe Printing Co. v. Stahl, 23 Mo. App. 455; Hoyt v. Davis, 21 Mo. App. 235; Barrett v. Donnelly, 38 Mo. 492,494,495; Railroad v. Clark, 68 Mo. 371.

— Hon. Charles L. Dobson, Judge. (1) The legislative power in Missouri is vested in the General Assembly, and can not be delegated to or exercised by the people. State ex rel. Maggard v. Pond, 93 Mo. 632; State v. Field, 17 Mo. 529; Lammert v. Lidwell, 62 Mo. 191; State ex rel. v. Francis, 95 Mo. 49; State v. City of Orange, 36 Atl. Rep. 707. (2) Kansas City is not a ‘‘political subdivision” of this State, as is the city of St. Louis.

Louis City Circuit Court. — ;Hon. Daniel Dillon, Judge. (1) A lot of land in its natural state, and unimproved by buildings or artificial weight, is entitled'to lateral support from an adjoining lot; and if the co-terminous owner should withdraw such support by excavating so close to the dividing line as to cause the earth to slip, he will be liable in damages therefor. Charless v. Rankin, 22 Mo. 573; Larson v. Railroad, 110 Mo. 234; Washburn’s Easements and Sérv., *p. 430.

Mandamus. A practical, common horse sense construction of the intent of the legislature as expressed in its language, “shall cause the said court room ... to be furnished in a proper manner,” was that respondent should cause to be purchased for the permanent furnishing of the court room suitable furniture.

— Hon. E. M. Hughes, Judge. . (1) The form of the bond is merely directory and can not be avoided, because the form of the statute has been disregarded. Ricks v. Chouteau, 12 Mo. 342; Rail v. Cushing, 26 Mass. 395.

<p>Qup Warranto: demubeee. To quo warranto filed by the Attorney-General inquiring by what right the respondent, having failed to pay his taxes prior to his election, holds the office of city marshal, a demurrer was filed. Held, that as the demurrer confesses the marshal had not paid his taxes according to law, the information being sufficient, a writ of ouster will be issued. (Following State exrel. v. Williams, 99 Mo. 291, and State ex inf. v. Berkeley, 140 Mo. 184.)</p>

Mandamus. (1) By virtue of this alleged judgment we can never have execution to collect the sum due; nor will that amount ever draw interest by virtue of this alleged judgment; nor can the clerk ever index the same as a judgment by force of this alleged judgment; nor can a lien ever arise by virtue of it; but all of these essential attributes of a judgment given as a matter of right by the statutes are to arise by virtue of an order which may or may not be made in the future.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) “Where the statute requires that objections to the report of viewers or commissioners shall be made within a designated time, or in a prescribed mode, the failure to make the objections in the time designated, or in the mode indicated, will preclude the party from availing himself of any objections, except such as go to the jurisdiction.” Elliot on Roads and Streets, 267; Bryant v. Railroad, 61 Me. 300; Matter of Clear…

Quo Warranto. (1) By the provisions of the Constitution and these sections of the charter, it will be observed that the Governor is the conservator of peace, but that in Nansas City the entire police power is vested absolutely in the commissioners, as the local representatives of the Governor, and the power to appoint policemen is, in the express language of the charter, “to enable said board to perform the duties imposed upon them.” (2) A close reading of the section in…

— Hon. J. H, Sloveb, Judge. (1) The corporation franchise may exist in full force, even though the corporation never acquires any property, or rights, and this corporate franchise is not property in the ordinary sense of the term, and can not he transferred by voluntary conveyance, or by sale under execution unless the statutes of the State so provide.

(1) The evidence is uneontradieted that defendant demanded of plaintiff that he furnish to defendant in accordance with the plain terms of the contract, verified plans and specifications of the property damaged, and that plaintiff refused so to do. This requirement of the contract is reasonable, valid and binding. Arnold v. Ins. Co., 55 Mo. App. 149; Fawcett v. Ins. Co., 27 Up. Can. Q. B. 225.

— Hon. Edward C. Crow, Judge. (1) The notice of withdrawal of March 7, 1893, accepted as it was by the officers of the association, gave the claimant a preference over other stockholders who had not withdrawn. In re Sunderland, etc., Building Society, 24 Q. B. D. 394; Kemp v. Wright, 2 Ch. 462; Walton v. Edge, 10 App. Cas. 33; Barnard v. Thompson (1894) 1 Ch. Div. 374; MeKenny v. Loan Ass’n, 18 Atl. Rep.

— Hon. Edwabd L. Scaeeitt, Judge. (1) The court erred in excluding evidence offered by defendant to show that John W. Henry, as a part of the consideration for the conveyance from defendant to him, agreed to assume the indebtedness herein sued for. An agreement to assume mortgage as part of the consideration need not be in writing. Ely v. McNight, 30 How. Pr. (N. Y.) 97; Wright v. Bridges, 99 Ind. 565.

(1) This is not a suit to set aside the probate of the will of Asa H. Stowe, deceased, but to recover from defendants the property obtained by their unlawful act. (2) The probate of the will after .five years becomes conclusive and can not be attacked upon any ground, but the wrongful act by which these defendants obtained the will and its probate is not barred, and they are not shielded from attack by the statute that controls the probate of the will.

Louis City Circuit Court. — Hon. James E. Withbow, Judge. (1) This court on this appeal will presume that no other ground was found in 'the motion for sustaining the application for new .trial, and will limit the present investigation to the alleged error in the -instructions.

— Hon. Reuben E. Roy, Judge. (1) The findings and judgment are against the law and evidence. Snyder v. Free, 114 Mo. 360; Lionberger v. Baker, 88 Mo.. 447. (2) The court excluded from the jury and disregarded the issue whether the conveyance was made to hinder, delay or defraud creditors. Nat. Tide Works Co. v. Machine Co., 118 Mo. 365; Sexton v. Anderson, 95 Mo. 373. (3) Part of the alleged consideration being fictitious renders the conveyance fraudulent.

<p>1. Change of Venue: affidavit by only one of two plaintiffs: defendant’s appeaRanoe. Plaintiffs brought suit in Jaekson county for damages for the killing of their child by the defendant’s train, and applied for a change of venue which was granted to Cass county, the affidavit having been sworn to only by the husband. Held, that the objection, made for the'first time in the'Cass circuit court, that the affidavit was insufficient because sworn to by only one of the plaintiffs, came too late. Held, also, that, as the circuit court of Jackson county had power to grant a change of venue, the order granting the change to Cass county was not void; and when the defendant appeared to the suit in the Cass circuit court, its jurisdiction was complete. *</p> <p>2. Negligence: questions foe the juey. Where the facts in evidence are such as may well cause reasonable and fair minds to differ' as to whether the mother exercised reasonable watchfulness over her child, or the servants of the defendant in charge of the train exercised due care to prevent its being killed, the issue should be submitted to the jury under proper instructions, and in this case the court did not err in refusing an instruction which stated that “under the pleadings and evidence it is the duty of the jury to return a verdict for the defendant.”</p> <p>3. -: AN insteuction held peopeb. An instruction as to the duty and watchfulness and contributory negligence of the parent, in a suit for the killing of a child, is considered and held proper under the circumstances of this case.</p> <p>4. -: insteuction as to gbipman’s duty on a street cae. An instruction that directed the jury to find for plaintiff “if the gripman saw, or by the exercise of ordinary care could have seen, the deceased child on the track in time to have stopped the train with safety to the ear and passengers and avoided the accident,” is held proper, and is not open to the objection that it. fails to state that the gripman also owed a duty toward the safety- of passengers and to other persons on the street, such objection under the circumstances of the case being without merit.</p>

Louis City Circuit Court. The question involved in this case is whether or not the city of St. Louis has a right to allow its streets to be used by corporations in operating their cars in such a manner as to interfere with the reasonable use of said streets by the public and in such a manner as to interfere with the business of the owner of the property abutting thereon, and to the injury of the business of the owner of property so abutting.

— Hon. C. C. Bland, Judge. (1) The petition can not be sustained because of .multifariousness. Robinson v. Rice, 20 Mo. 229; Bank v. Bayless, 41 Mo. 274; Mead v. Brown, 65 Mo. 552; Peyton v. Rose, 41 Mo. 257. (2) The decree of the circuit court in this cause erroneously fails to consider or dispose of the interest of Ou. Edna Nell.

Louis Criminal Court. (1) The proper course to pursue is not to admit evidence, the competency and relevancy of which is not apparent until the competency or relevancy is disclosed by the subsequent evidence. State v. Thomas, 99 Mo. 235.

Louis City Circuit Court. — Hon. Leboy B. Valliant, Judge. (1) Appellants are entitled to recover the reasonable value of the work contracted for' on a quantum meruit, even if it exceeds the contract price. Kelly v. JRowane, 38.Mo. App. 443; Fitzgerald v. Hayivard, 50 Mo. 524; McCullough v. Balter, 47 Mo. 40; Teats v. Ballentine, 56 Mo; 538; Ahern v. Boyce, 19 Mo. App. 555; s. o., 26 Mo. App. 564.