Volume 140 — Missouri Appeal Reports

— Hon. C. Á. Mosmcm, Judge. . (1) Section 214, Revised Statutes 1899, provides, that, “If any . . . heir ... of an estate shall, within four months after any demand shall have been allowed, file in the office of the probate court the affidavit of himself or some credible person, stating that the affiant has good reason to believe, and does believe, that such demand has been improperly allowed, and shall furnish satisfactory evidence of that fact to the court, and further,…

— Eon. A. D. Burnes, Judge. (1) The minds of the principals, in the contract sought to be made, never met and assented to the same thing, in the same sense. Therefore, there was no contract between plaintiff and defendant, The Union Gas and Traction Company. Lnngstrass v. Insurance Co., 48 Mo. 201; Botkin y. McIntyre, 81 Mo. 557; Mfg. Co. y. Broderick, 12 Mo. App. 378.

— Hon. Francis H. Trimble, Judge. '(1) Tbe plat of the town of Hardin, offered in evidence by the plaintiff, was void for uncertainty, incompetent for any purpose, and defendant’s objections thereto should have been sustained. It was indefinite as to location, uncertain as to boundary, and contained no accurate description of the land platted as required by statute.

— Hon. Wm. H. Martin, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. It'does not allege performance or ian offer to perform the agreement on the part of respondent.

— Eon. G. A. Mosman, Judge. (1) The instruction in the nature of a demurrer offered by the defendant at the conclusion of the plaintiffs’ evidence and the instruction offered by the defendant in the nature of a demurrer at the conclusion of all the testimony in the case should have been given. There was no evidence to sustain the allegations of the petition that the defendant, Lewis, sold or disposed , of or converted to his own use the property sued for.

— Hon. A. H. Waller, Judge. (1) The court erred in sustaining defendant’s demurrer to plaintiff’s petition.

— Eon. Jolm P. Butler, Judge. (1) Defendant should haye been permitted to show that lots 16, 17 and 18 in block 17, which abutted 140 feet on Snow street and were contiguous to lots 19 •and 20, were peculiarly benefited by the construction of the ditch in front of all of said lots along Snow street, and to have such benefits deducted from any damages the jury might find resulted to lots 19 and 20 in said block on account of said ditch; and to show that all of plaintiff’s…

— Hon. Geo. W. Wanamalcer, Judge. (1) Any cause of action for fraud and deceit alleged in the answer, is a cause of action for representations made to defendants for the purpose of defrauding them (not Fox) while the proof (if any) is representations made to Fox’s agent to defraud Fox. A fatal variance or failure of proof. Defendant could not recover upon his counterclaims under the pleading and evidence.

— Hon. John Q-. Park, Judge. (1) Tbe defendant Woodmen of tbe World cannot defend this case on tbe ground that plaintiff was not named beneficiary in accordance with its by-laws. Because it agreed in its contract not to do so. Because it agreed in a subsequent by-law that it would not contest its payment on that ground after tbe policy bad been in force five years. Williams v. Insurance Co., 189 Mo. 70; Levine v. Knights of Pythias, 122 Mo. App. 547.

Louis City Circuit Court. — Hon. James E. Withrow> Judge. (1) The motion to require plaintiff to elect upon which cause of action it would stand, should have been sustained. This motion was made before the introduction of any evidence, and at the conclusion of plaintiff’s evidence. Zeideman v. Mososky, 118 Mo. App. 123; Otis v. Bank, 35 Mo. 128; State to use v. Davis, 35 Mo. 406; Childs v. Railroad, 117 Mo. 414; State v. Tittman, 103 Mo. 553.

— Eon. Oharles D. Stewart, Judge. (1) The evidence of partnership adduced at the trial tended to prove a non-trading partnership, even if competent, without being alleged in the petition, one member of the firm has no implied authority to bind the firm by issuing negotiable paper and the burden of proof is upon the one seeking to hold the firm liable and plaintiff has failed to so show. 22 Am. and Eng. Ency. Law (2 Ed.), p. 153; Stavnow v. Kennefick, 79 Mo.

Louis City Circuit Court. — Eon. Dan’l G. Taylor, Judge. (1) There Avas no evidence Avhatever in this case of any tender by any one of the Meisenbach’s February assessment during the month of February, 1908, or within ten days thereafter. Hence plaintiff’s instructions 1 and 4 are Avithout any basis. Potts v. Plaisted, 30 Mich. 149; Procter v. Robinson, 35 Mich. 284; Tuthill v. Morris, 81 N. Y. 99.

<p>Appeal from Knox Oircnit Court. — Hon* Charles D. Stewart, Judge. •</p>

Louis City Circuit Court. — Hon. Charles C. Allen, Judge. (1) Plaintiff’s instruction given at the close of defendant’s case was erroneous; and defendant’s instructions Nos. 4 and 5 should have been given. Henry v. Bassett, 75 Mo. 89; Henry v. Bassett, 22 Mo. App. 667; Story, Partn. (6 Ed.), sec. 49; Campbell v. Dent, 54 Mo. 837.

<p>Appeal from Taney Circuit Court. — Hon. John T. Moore, Judge.</p>

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) Section 1417 of the Revised Statutes of Missouri is unconstitutional and void because it is in violation of section 15, article 2, and section BO of article 2 of the Constitution of Missouri in that it impairs the obligation of contracts and attempts to deprive the insured in fraternal organizations of his right and liberty to enter into a contract, reasonable and salutary in its purposes, without due. process of law.

Louis City Circuit Court. — Eon. George H. Shields, Judge. (1) Defendants were not negligent. They had performed every duty which the law and the circumstances imposed upon them. Moore v. Railroad, 85 Mo. 588; Schaub v. Railway Co., 106 Mo. 87; Browning v. Railroad, 124 Mo. 55; Card v. Eddy, 129 Mo. 510; Grat-tis v. Railroad, 158 Mo. 380; Jones v. Railroad, 178 Mo. 528; Livengood v. Lead and Zinc Co., 179 Mo. 229; Edge v. Electric Ry.

<p>Appeal from St. Louis City Circuit Court. — Eon. G. C. Allen> Judge.</p> <p>(1) The contract between respondent was for through carriage from St. Louis, Missouri, to Homestead Landing, Louisiana. Popham y. Barnard, 77 Mo. App. 629; Door Co. v. Railroad, 177 Mo. 655; Railroad y. Trading Co., 195 U. S. 439; Smeltzer v. Railway, 158 Fed. 649; White v. Railway, 19 Mo. App. 400; Johnson v. Railroad, 133 Mich. 596; Jennings v. Grand Trunk, 127 N. Y. 438, 442; Fruit Company y. Railroad, 118 Cal. 648. The boat was the agent of respondent, not appellant, to complete the carriage. Railroad v. Railroad, 110 U. S. 688; Helliday v. Railway, 74 Mo. 159; Meyers y. Railroad, 120 Mo. App. 294. Respondent had no authority to constitute the boat the agent of appellant. Bank v. Express Co., 93 U. S. 174. (2) The liability for loss occurring beyond respondent’s line falls on respondent in case of a contract for through carriage, as here. R. S. 1899, sec. 5222; McCann v. Eddy, 133 Mo. 59, 174 U. S. 580; Marshall Co. v. Railroad, 176, 480; Door Co. v. Railroad, 177 Mo. 641; Edi-les y. Railroad, 112 Mb. App. 240; Hubbard y. Railroad, 112 Mo. App. 459; Bushnell v. Railroad, 118 Mo. App. 624; Buffington y. Railroad, 120 Mo. App. 294; Dayis y. Railroad, 122 Mo. App. 644; Medicine Co. v. Railroad, 126 Mo. App. 455; Milling Co. y. Railroad, 127 Mo. App. 80. (3) The reference in the original shipping receipt to tbe company’s bill of lading does not confine respondent’s liability to its own lines, because: (a) Section 5222, Revised Statutes 1899, forbids tbe incorporation of that bill of lading into tbe original shipping receipt. Door Co. v. Railroad, 177 Mo. 654; Smeltzer v. Railway, 158 Fed. 649. (b) If tbe contract be ambiguous as to wbetber it imports a contract for through carriage, it must be resolved against the carrier. Richardson v. Railroad, 149 Mo. 311; Milling Co. v. Railroad, 127 Mo. App. 90; Railway v. Reiss, 183 U. S. 626. (c) If there is any conflict between the written shipping directions in the receipt, and the printed provisions in the bill of lading, the latter must give way. (4.) Delivery at Upper Wilton was no delivery within the contract. 4 Elliott on Railroads, par. 1526; Railroad v. Potts, 33 Ind. App. 574. (5) There should be judgment in this court for the value of the shipment, plus freight paid, and interest at six per cent from date of demand on the aggregate thereof. R. S. 1899, sec. 866.</p>

— Hon. James T. Neville, Judge. (1) The provision in the policy that no claim would be paid thereon unless the insured were in sound health on the date thereof is a valid provision and is not affected by section 7890, Revised Statutes 1899. Welch v. Guar. F. L. Soc., 81 Mo. App. 38; McAndiless v. Insurance Co., 45 Mo. App. 584; Insurance Co. v. Howie, 62 Ohio St. 204; Barker v. Insurance Co., 188 Mass. 542; Packard v. Insurance Co., 72 N. H. 1; Carmichael v. Ins.

Genevieve Circuit Court. — Eon. Chas. A. Killian, Judge. (1) The court erred in refusing to instruct for a verdict for defendant on the facts in the evidence. The burden of proof is on plaintiff as to amount of the loss and value of the goods destroyed. Summers v. Insurance Co., 53 Mo. App. 523; Trask v. Insurance Co., 53 Mo. App. 630.

<p>INSURANCE: Fields v. Insurance Co., ante, followed. For the reasons given in Fields v. Insurance Co., ante, p. 158, the judgment is affirmed.</p>

Louis City Circuit Court. — Hon. Geo. H. Shields, Judge. (T) The trial court erred in failing to sustain the instruction asked by this appellant at the close of plaintiff’s evidence, and such error was not cured by the evidence for the defendant. A party seeing an obstruction or danger in a street, as in this case, there lawfully, is negligent as a matter of law in undertaking to pass through or under it without proper investigation, and does so at his peril.

Louis City Circuit Court. — Hon. Dan’l D. Fisher, Judge. (1) The court erred in overruling defendant’s challenge of juror, Elsworth Lyons. Billineyer v. Transit Co., 108 M'o. App. 6; Theobald v. Transit Co., 191 Mo. 895. (2) The court erred in not sustaining defendant’s demurrer to the evidence, because there is no evidence tending to show negligent speed of the car, or, if the speed was negligent, that it was the proximate cause of the collision.

— Eon. C. A. Den-ton, Special Judge. It is apparent from the information that the defendant was not only appointed, hut his duties were defined by the ordinance. He, as such enumerator, had no existence, or duty to perform except as defined by the ordinance pleaded.

— Hon. Hugh Dabbs, Judge. (1) The plaintiffs’ evidence failing to establish a contract to reimburse them for loss of profits, in case of… Held: to reimburse the plaintiff’s for a loss of profits, when it was not shown that it had notice that such loss would result from the any delay in the shipment. Gray v. Railroad, 54 Mo. App. 666; SAvift River Co. v. Railroad, 169 Mass. 326, 47 N. E. 1015; 8 Am. and Eng. R. Cas. (N. S.) 513; Bradley v. Railroad, 94 Wis. 44, 68 N. W. 410.

— Hon. Haywood Scott, Judge. (1) Under tbe terms and provisions of tbe contract tbe court erred in admitting tbe parol testimony of tbe defendant, Maggie Ranson. Loan & Trust Co. v. Workman, 71 Mo. App. 278; Wood v. M'urpby, 47 Mo. App. 539; Banks v. Ricbart, 101 Mo. App. 242; Martin v. Witty, 104 Mo. App. 268; 1 Beacb on Modern Law of Contracts, sec. 784; Plano Mfg.

— Son. James T. Seville, Judge. (1) The court erred iu requiring defendant to specifically perform the contract withoiut requiring plaintiff to pay the taxbill. Section 5858, Revised Statutes 1899, as amended by laws of 1901, p. 64; Everett v. Marston, 186 Mo. 587; Mercantile Trust Co. v. Niggeman, 119 Mo. App. 56.

<p>Error to Jasper Circuit Court. — Hon, Haywood Scott, Judge.</p>

— Eon. L. B. Wood-side, Judge. The evidence shows there was no frand in obtaining this note, hence there is no evidence to support the verdict. 14 A. and E. Ency. Law, pages 33, 34; Weik v. Williamson-Gunning Adv. Co., 109 Mo. App. 6; Bretz-felder v. Waddle, 122 Mo. App. 462; Morris v. McMa-han, 75 Mo. App. 494.

<p>1. CRIMINAL LAW: Carrying Concealed Weapons: Permitted Under Certain Circumstances: Instructions. The statute provides that it shall he a good defense to the charge of carrying concealed weapons if the defendant shall show that he has been threatened with great bodily harm, or had good reason to carry the same in the necessary defense of his person, home or property; but an instruction that required the jury to find not only that he had been threatened with great bodily harm, but also that he carried the weapon in the necessary defense of his person or property, is erroneous.</p> <p>2. -: -: Instructions. The statute provides that it is a good defense to the charge of carrying concealed weapons if the defendant shows that he had 'good reason to carry the same in the necessary defense of his person, and an instruction is erroneous which omits the words “had good reason to carry the same.”</p> <p>3.-: -: Weapon May Be Carried When: Burden on Defendant. Where the defense to the charge of carrying concealed weapons is that defendant had good reason to carry the same in defense of his person, the burden is upon him to prove it, and if he introduces the evidence to show that threats were made against his life, he should further show that they were made under such circumstances that justified him in carrying the weapon in good faith and on account thereof.</p>

Appea.1 from Jasper Circuit Court. — Hon. Henry L. Bright, Judge. (1) The court erred in admitting oral testimony to show that certain matters growing out of plaintiff’s alleged accident were not included in the settlement between plaintiff and defendant made on February 19, 1908. The Cayuga, 59 Fed. 485; Pierson v. Hooker, 3 Am. Dec. 467; Duff y. Hutchinson, 57 Hun 152, 10 N. Y. Supp. 857; Slayton v. ITemken, 91 Hun 582, 36 N. Y. Supp. 249; Tate y. Railroad, 131 Mo.

— Son. David E. Blair, Judge. (1) The defendant is not liable unless it bad notice of the removal or unless the light had been removed for such a length of time as to give to defendant constructive notice as to its removal. ■ Ball v. City of Independence, 41' Mo. App. 475; Myers v. City of Kansas, 108 Mo. 487. (2) No mention is found in the first and genera] instruction of the plaintiff as to defendant’s principal defense.

<p>Appeal from Dade Circuit Court. — Hon. B. Cf. Thurman, Judge.</p>

— Hon. James T. Ne-ville, Judge. (1) A real estate broker earns bis commission when be finds and produces to tbe seller a buyer for tbe land, wbo is ready, able and willing to buy upon tbe terms upon wbicb the broker is authorized to negotiate tbe sale. Brown v. Smith, 183 Mo. App. 68; Reiger & Thompson v. Merrill, 125 Mo. App. 549; Moore v. Mount-castle, 61 Mo. 424; Peycke Bros. v. Aherns, 98 Mo.

— Eon. D. E. Blair, Judge. The court erred in finding for the defendants and not for plaintiff1, on the facts as disclosed by the evidence and on the law; because it is the absolute duty of mine operators to protect the surface of the ground being mined, and it is the absolute right of the surface owner to have his surface supported precisely as it was in its natural state.

Christian Circuit Court. — Eon, John T. Moore, Judge. (1) Fraud, in the legal acceptation, can exist only where there were representations of existing or past existing facts. It never consists in promises or agreements as to future conduct. Instruction Number T given for respondents is a flagrant violation of this settled and salutary rule. Morris v. McNahan, 75 Mo. App. 498; Nichols v. Stevens, 123 Mo. 117; Estes v. Shoe Co., 155 Mo. 588; Bullock v. Woodridge, 42 Mo.

— Hon. L. B. Woodside, Judge. (1) Tbe subsequent agreement, if it bound Espen-scheid to accept Harrison’s judgment of tbe sufficiency of tbe abstract, would be at fatal variance with tbe original contract and void under tbe Statute of Frauds. Hamilton v. Brewing Co., 125 Mo. App. 579; Miller v. Goodrich Bros., 53 Mo. App. 430; Rucker v. Harrington, 52 Mo. App. 481; Warren v. Mayer Mfg. Co., 161 Mo. 112; Ringer v. Holzclaw, 112 Mo. 522; Harrison v. Railroad Co., 50 Mo.

— Hon. John T. Moore, Judge. There was no evidence upon which to authorize the submission to the jury, and the court should have so declared. Guyer v. Railroad, 174 Mo. 330; Schmidt v. Railroad, 191 Mo. 233; Walker y. Railroad, 193 Mo. 481; Sanguinette y. Railroad, 196 Mo. 495; Stolker v. Railroad, 204 Mo. 636; 3 Elliott on Railroads (2 Ed.), sec. 1315; Lamm y. Railroad, 216 Mo. 578; Mayer v..

— Eon. L. B. Wood-side, Judge. (1) The contract of May 19, 1909, to refrain from lumber business was valid and legal. Jacket Co. v. Angelica, 121 Mo. App. 226. (2) Injunction is a proper remedy for violation of such contract. 3 Parsons on Contracts (9 Ed.), p. 343; McCurry v. Gibson, 108 Ala. 459; Gill v. Ferris, ’82 Mo. 156; Gordon v. Mansfield, 84 Mo. App. 367.

— Hon. A. H. Wear, Special Judge. (1) Tbe petition does not state a cause of action and tbe objection to tbe introduction of any evidence as well as tbe motion in arrest of judgment should have been sustained. Brown v. Gape Girardeau, 90 Mo. 377; Maker v. Faulbaber, 94 Mo. 430. (2) Tbe remark by tbe court during tbe progress of tbe trial was a comment on tbe evidence and1 unwarranted. Eck-bard v. Transit Go., 190 Mo. 620; Shanahan v. Transit Go.,. 109 Mo.

— Hon. George W. Goad, Special Judge. This action involves title to real estate and tbe cause should be transferred to the Supreme Court. Isaacs v. Strainka, 18 Mo. App. 323 ;- Nearen v. Bake-well, 40 Mo. App. 625; Kelly v. Staed, 59 Mo. App. 54; Beland v. Anheuser, 71 Mb. App. 567; Hall v. Doughett, .71 Mo. App. 576; Bouner v. Lisenby, 73 Mo. App. 562; Vandergrif v. Brock, 73 Mo. App. 646; Turner v. Overall, 83 Mo. App. 378; Lappin v. Crawford, 92 Mo.

— Hon. John T. Moore, Judge. The court erred in refusing plaintiff’s first and second instructions.

— Eon. J. B. McGil-vray, Special Judge. (1) The law favors compromises and settlements, and when parties in good faith make such offers, but fail to effect a settlement, they should not be paraded before the jury, who are too apt to draw the inference, from just such answers as in this case, that the defendant thereby acknowledged its liability. Columbia Mill Co. v. Insurance. Co., 59 Mo. App. 207; Gorham v. A,uers-wald, 59 Mo. App. 77; Fink y. Insurance Co., 60 Mo.

— Hon. John T. Moore, Judge. (1) If the trial court has anything to say, he must say it in writing in his instructions to the jury. R. S. 1899, sec. 2639. (2) It is clearly an error for the attorney representing the State to refer to the defendant not testifying in his own behalf. The State must make its case. R. S. 1899, sec. 2638; State v. Moxley, 102 Mo. 374; State v. Graves, 95 M'o. 510; State v. James, 216 Mo. 394.

— Hon. James T. ■ Neville, Judge. (1) Bonds in replevin suits instituted in the circuit court must be approved by the sheriff of the county, R. S. 1899, secs. 4465, 4466, 4469. (2) The bond may be a valid common law bond, but the court did not have jurisdiction to render a summary judgment against the sureties. (3) The bond is not a statutory one and if valid at all, is a common law bond. State to use v. Finite, 66 Mo. App. 238.

— Hon. R. Cf. Thurman, Judge. “The abstract should indicate by its own internal arrangement what is record proper, and what is matter abstracted from the bill of exceptions, where the one ends and the other begins.” Thompson v. Rud-dick, 213 Mo. 564. Stark v. Zeiinder, 204 M'o. 448; Harding v. Bedoll, 202 Mo. 630; Pennoffsky v. Coerver, 205 Mo. 137; Heltzell & Co. y. McDowell, 135 Mo. App. 204; Macon ex rel. v. Jaeger, 133 Mo. App. 643.’

— Eon. Hugh Dabbs, Judge. (1) The right of a creditor to enforce the liability of a stockholder under section 987 accrues at the majority of the claim against the corporation from which time the Statutes of Limitations begins to run. Mc-Ginnis v. Barnes, 23 Mo. App. 413; McGinnis y. Kort-kamp, 24 Mo. App. 378.

<p>Appeal from Christian Circuit Court. — Hon. John T~ Moore, Judge.</p>

<p>Appeal from Jasper Circuit Court. — Eon. Hoicurd ■Gray, Judge.</p>

— Hon. Henry L. Bright, Judge. (1) The misdemeanor as defined by the statute is the setting up of a gaming device in any house of which the defendant has “at the time the possession and control,” which is not charged in this indictment. State v. Moore, 55 Mo. App. 326; R. S. 1899, sec. 2196. (2) An offense created and defined by the statutes must be charged in the language of the statute, or in language of equivalent import. State v. Etchman, 184 Mo. 193.

— Hon. John T.. Moore, Judge.. Motion for a new trial should have been sustained. The evidence taken as a whole, proved that defendant shot and killed a dog that was trying or attempting to bite him, ,as defendants testified: “I shot for self-protection.”' State v. Badger, 95 Mo. App. 289; R. S. 1899, sec. 2627;- State v. Branstetter, 65 Mo. 149; State v. Weakley, 178 Mo. 413. An act which, would otherwise be a crime is justifiable or excusable if done under, necessity.

<p>1. CRIMINAL LAW: Violating Local Option Law: Instructions. Where defendant is charged with violating the local option law, and the testimony is such as to require the court, by an instruction, to declare what would constitute a sale, this should he done, hut it is not proper for the court to tell the jury that if the evidence shows defendant did “directly or indirectly” sell, etc., without also explaining what was meant by the words “directly or indirectly.” But where these words are: used in an instruction without such explanation .and the evidence shows that the sale was made by defendant passing the liquor to the purchaser and receiving from him the money therefor, the error is harmless.</p> <p>2. -: Number of Witnesses. Although the statute provides that in allowing costs against a county or State only three witnesses to prove any one fact shall he allowed, yet this does not require the court to limit the number of witnesses to three upon any one question, hut the court may use a sound discretion in that matter, and may limit the number of witnesses, especially upon a question of impeachment merely, and unless such discretion has been abused or defendant has suffered by the restriction, the appellate court will not interfere:</p>

<p>Appeal from Jasper Circuit Court. — Eon. David E. Blair, Judge.</p> <p>(1) The demurrer to the testimony at the close of plaintiff’s testimony, should have been sustained. Hausmann v. Hope, 20 Mo. App. 193; State v. Goetz,, 131 Mo. 675; Morrow v. Pullman Car Co., 98 Mo. App. 351; Hendley v. Globe Co., 106 Mo. App. 20; Gee v. Van Natta Co., 105 Mo. App. 27; Lenix v. Railroad, 70 Mo. 86; Holmes v. Leadbetter, 95 Mo. App. 419; Fellenz. v. St. Louis Co., 106 Mo. App. 154; Asphalt Co. v. St. Louis Co., 102 Mo. App. 469. (2) Upon the entire record, it appears conclusively, that no cause of action vested in the plaintiff and the only judgment possible under the law and the evidence, was for the defendant. Weaver v. Benton Co., 60 M'o. App. 207; Barrie v. St. Louis Co., 102 Mo. App. 87; Conrad Grocer Co. v. Railroad, 89 Mo. App. 534; Kelley v. Railroad, 75 Mo. 140; Hauselman v. Railroad, 88 Mo. App. 123; Smith v. Railroad, 61 Mo. 558; Meyers v. Railroad, 103 Mo. App. 268; Hogan v. Citizens Co., 150 Mo. 36; Zumalt v. Railroad, 175 Mo. 288; Stepp v. Railroad, 85 Mo. 229; Reno v. St. Louis Co., 180 M'o. 469; Rees v. St. Louis Co., 179 Mo. 1; Hickman v. Union Co., 47 Mo. App. 65; Bunyan v. Citizens’ Co., 127 Mo. 12; Fanning y. St. Louis Co., 103 Mo. App. 151; Moore v. Lindell Co., 176 Mo. 528. (3) Even if the record discloses negligence on the part of the appellant, it is still true that its violation of duty does not render it liable for an injury resulting from the injured person’s own carelessness and respondent was guilty of such negligence in failing to stop and look and listen, before going upon appellant’s track, as to bar her of recovery. Mc-Manamee v. Railroad, 135 Mo. 440; Hudson v. Railroad, 123 Mo. 445; Payne v. Railroad, 136 Mo. 562; Peterson v. Railroad, 156 Mo. 552; Sharp v. Railroad, 161 Mo. 214; Tanner v. Railroad, 161 M'o. 497; Reno v. St. Louis Co., 180 Mo. 469; Schmidt v. Railroad, 191 Mo. 215; Green v. Railroad, 192 Mo. 131; Kintag v. Railroad, 65 Fed. 391; Schofield v. Railroad, 114 TJ. S. 615, 29 L. Ed. 224.</p> <p>The evidence is sufficient to sustain the verdict. Goff v. Transit Co., 199 M'o. 694; Beier v. Transit Co., 197 Mo. 215; Rapp v. Transit Co., 190 Mo. 144; Murray v. Transit Co., 176 Mo. 183; Schafstette v. Railroad, 175 Mo. 142; Jett v. Electric Railroad, 178 Mo. 664; Baird v. Citizen’s Railroad, 146 Mo. 265; Klockenbrink v. Railroad, 172 Mo. 678; Linder v. Transit Co., 130 Mo. 574; Burén v. Transit Co., 104 Mo. App. 224; Kolt v. Transit Co., 102 M'o. App. 143; Moore v. Transit Co., 95 Mo. App. 728; Noll v. Transit Co., 100 Mo. App. 367; Conrad Gro. Co. v. Railroad, 89 Mo. App. 391; Zander v. Transit Co., 206 Mo. 445; Storage Co. v. Transit Co., 120 Mo. App. 410.</p>

— Eon. James T. . Neville, Judge, (1) The petition does not state a cause of action and the motion in arrest of judgment should have been sustained. Saxton y. Railroad, 98 Mo. App. 503; Stewart v. Railway, 146 Mass. 605; Meers v. Railway, 62 S. W. 1012; Dougherty v. Railroad, 81 Mo. 330; Maguire y. Transit Co., 103 Mo. App. 475; Stoddard y. Railroad, 105 Mo. App. 512.

<p>1. APPELLATE PRACTICE: Defective Abstract. In an appeal on the short form appellant assigns as errors that the finding of the court was against the evidence and that the court refused instructions asked hy the defendant, hut no refused instructions are printed in the abstract, nor does it contain the bill of exceptions. Held, that as there is nothing before the appellate court except the judgment, which is valid on its face, it will be affirmed.</p> <p>2. -: JUDGMENT: Presumptions as to Correctness. In the absence of testimony showing that the court’s finding was against the evidence, all presumptions in its. favor are to be indulged.</p>

<p>Writ of Error to the Phelps Circuit Court. — Hon. L. B. Woodside, Judge.</p> <p>There is no evidence that Pete Dunn’s yellow and white spotted dog was kept by defendant. Collingill v. Haverhill, 128 Mass. 218; Cummings v. Riley, 52 N. H. 368; Burnham v. Strother, 66 Mich. 519; Mitchell v. Chase, 87 Maine 172; Whittemore v. Thomas, 153 Mass. 347; O’Hara v. Miller, 64 Iowa 462; McCosker v. Weath-erbee, 59 Atl. 1019; Whalen v. Wetzell, 6 Ky. Law Rep. 49; Snyder v. Patterson, 28 Atl. 1006.</p> <p>(1) In reviewing a demurrer to the evidence, plaintiff should have the benefit of the most favorable view of his case that the evidence warrants, and of every reasonable inference therefrom. Larson v. Railroad, 110 Mo. 234; Pope v. Railroad, 99 Mo. 400; St. Louis v. Railroad, 114 Mo. 13; Hite v. Railroad Co., 130 Mo. 132; Stove Co. v. Spear, 65 M’o. App. 67. (2) There was evidence tending to show that defendant himself was the owner of one of the dogs that plaintiff saw chasing his sheep on the morning of July 3d, and from this evidence the jury might have well found that he was the owner of this dog. Even though he was not the owner but that the same was the property of his son-in-law, Pete Dunn, yet the testimony constituted defendant a keeper of the dog within the meaning of the law. R. S. 1899, sec. 6975; Peeler v. McMillian, 91 Mo: App. 310; Holmes v. Murray, 207 Mo. 413; Jacobsmeyer v. Poggemoeller, 47 Mo. App. 562.</p>

— Hon. B. G. Thurman, Judge. (1) ' A bill in equity will lie to set aside a judgment procured by fraud, accident or mistake, and suck an action is a direct and not a collateral attack. Engler v. Knoblaugb, 131 Mo. App. 481; Graff y. Dougherty, 120 S. W. 661; Wilhite y. Perry, 66 Mo. App. 453. (2) When a cause is sent on change of yenue from one justice to another, notice of the time of trial must be served on both parties. R. S. 1899, secs. 3973-4.

— Eon. B. G. Thurman, Judge. It is beld that, though plaintiff alleges that it is a foreign corporation and does not allege compliance by it with the laws of this State to entitle it to make contracts and enforce them in the courts of this State, compliance with the laws of this State will be presumed. And failure to comply is purely a matter of defense and must be pleaded in answer and not by demurrer.

— Hon. David E. Blair, Judge. The court erred in oyerruling defendant’s instruction in the nature of a demurrer to the evidence and in giving plaintiff’s instructions Nos. 1, 2, 3, and each of them, and in refusing defendant’s instructions 7, 8, 10, and each of them. Chapman y. Currie, 51 Mo. 43; Carr v. Ubsell, 97 Mo. App. 331; Morrison y. Murphy, 36 Mo. App. 36; Bent v. Priest, 86 Mo. 482; Norman y. Rose-man, 59 M'o. App. 685; Dennison y. Gault, 132 Mo. App. 301.

Louis City Circuit Court. — Hon. O'Neill Ryan, Judge. A benevolent or non-trading corporation is not held to such strict conformity to its rules as is required of business or shareholding corporations, provided it appears that such benevolent corporation acted within the scope of the powers given by its articles and rules. Mulroy v. Knights of Honor, 28 Mo. App. 469; Bran-denburger v. Jefferson Club; 88 Mo. App. 148.

Louis City Circuit Court. — Eon. Matt. G. Reynolds, Judge. (1) The court erred in setting aside the nonsuit directed herein for the reason that plaintiff’s evidence shows that he knowingly undertook to drive across defendant tracks in front of an approaching car going at a rate of fifteen to twenty miles an hour, and that his injuries were the result of his own negligence.

<p>1. APPELLATE PRACTICE: Criminal Law: Failure to Perfect Appeal Within Six Months. Where the appellant has failed to pay the docket fee in this court and has failed to perfect his appeal within six months, a motion to dismiss the appeal, under section 2717, Revised Statutes 1899, might well be sustained, hut in this case, the court prefers to overrule the motion and to consider the appeal on its merits.</p> <p>2. CRIMINAL LAW: Instructions: Refusal of Witness to Testify. In a prosecution for keeping a bawdy house, an instruction 'which charged the jury that in arriving at their verdict they might take into consideration the refusal of a witness to answer a question on the ground that his answer would tend to his degradation, correctly states the law.</p>

— Hon. Jas. D. Barnett, Judge. (1) The four-hundred-twenty-six-dollar note given by Charles Dnnard to Reeves & Company was sufficiently described in the chattel mortgage on the engine in… Held: then had run the engine as owner. His understanding that when Beeves & Company were paid off that he (defendant) was the owner of the machine; had not paid all of the note off before it was assigned to him; paid the balance due them on the note and then they assigned it to him.

— Hon. Jas. D. Barnett, Judge. The disposition of all of his personal property by Frank Lusse in anticipation of death and with the intent to defeat bis wife’s statutory rights is void and gives an equitable right of action against the parties who took from him.

<p>1. NEW TRIAL: Discretion of Court: Weight of Evidence. A motion for a new trial is to a great degree addressed- to the judicial discretion of the trial judge, and an appellate court is reluctant to interfere with the exercise of that discretion, especially when the case turns on the weight of the evidence.</p> <p>2. FRAUD AND DECEIT: Case for Jury.' In an action for fraud and deceit the court holds there is substantial evidence to warrant the submission of the case to the jury.</p>

— Hon. James T. Neville, Judge. (1) A rope is an implement of simple construction, presenting no complicated question of power, motion or construction, and a servant in using it daily is bound to notice at bis peril tbe ordinary wear and tear of tbe rope, and, if be is injured through a failure so to do, cannot recover from tbe master.

— Hon. BoM. 8. Byors, Judge. (1) The court erred in excluding the testimony of witnesses offered by defendant to prove plaintiff’s admissions against his interest. This was original evidence. Neither defendant or his counsel was to blame for witnesses violating the order of court. 2 Elliott’s Gen’l Practice, p. 696; O’Bryan v. Allen, 95 Mo. 68.

— Eon. George E. Pepperdine, Special Judge. (1) The pleas of plaintiff are inconsistent and she should have been put to her election. Non est factum and fraud are inconsistent defenses. Green v. Railroad, 192 Mo. 131; Drolshagen v. Railroad, 186 M'o. 258; Behen y. Transit Co., 186 Mo. 430; Yette v. Evans, 111 Mo. App. 588; Betz v. Telephone Co., 121 Mo. App. 473; Boyd v. Transit Co., 108 Mo. App. 303.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. (1) Tbe circuit court erred in refusing to bear or take jurisdiction of this case upon appeal to it; the appeal was from a judgment of the probate court based upon' the verdict of a jury, and the right of appeal from such judgment is expressly given by statute. Sec. 1674, R. S. 1899; Coleman v. Farrar, 112 Mo. 54; In re Marquis, 85 Mo. 615.

Louis City Circuit Court.- — Hon. Matt. G. Reynolds, Judge. (T) The petition' stated a cause of action, and the court under proper instructions should have submitted the case to the jury. Julian v. Kansas City Star, 209 Mo. 35; McGinnis v. Knapp, 109 M'o. 131; Ukman v. Daily Record, 189 Mo. 391; Sullivan v. Commission Co., 152 Mo. 275; Meriwether v. Knapp, 120 Mo. App. 354; Same v. Same, 211 Mo. 207; Brown v. Publishers, Geo.

Louis City Circuit Court. — Hon. C. Orrick Bishop, Judge. Appellant contends that the trial court committed error. First. — In excluding evidence tending to show the real contract or agreement between Morningstar and the American Fruit Product Company, that is, subsequent to the written memorandum, showing their mode of dealing, indicating and showing absolutely their understanding between themselves.

<p>Appeal from St. Louis City Circuit Court. — Son,. 0. Orriclc Bishop, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Ron. Dcm’l D. Fisher, Judge.</p>

— Eon. David H. Eby, Judge. The second amended petition of appellant was an amendment of the original petition filed in this 'cause under the two tests laid down by the courts of this State-. Líese v. Meyer, 143 Mo. 1. c. 555; Haines v. Pearson, 107 Mo. App..l. c. 484; Grigsby v. Barton Co.., 169 Mo. 1. c. 225.

— Hon. David H. Eby, Judge. (1) We take the position that when the defendant consented and agreed for the cause to be reset at the foot of the docket, and again when he appeared and the cause was continued by agreement of the parties, this was such an appearance as waived proper service of process and the jurisdiction of the court, and was tantamount to a general appearance in the cause.

Louis City Circuit Court. — Eon. Matt. G. Reynolds, Judge. (1) Representations as to value will not be considered fraudulent though untrue and known to be .so by the party making them. It is considered merely an expression of opinion. Cahn v. Reid, 18 Mo. App. 128; Bullock v. Wooldridge, 42 Mo.

— Hon. Henry C. Riley, Judge. (1) If tbe insured, James Mote Baker, after be became a member of defendant order, was convicted of a felony, bis benefit certificate was ipso facto, at tbe moment of conviction rendered null and void. (2) Tbe Missouri courts have many times determined that tbe contract between a member of a fraternal beneficiary society and tbe society itself will be substantially upheld and enforced. Borgraefe v. Knigbts of Honor, 22 Mo.

— Now. Henry G. Riley, Judge. The alleged counterclaim set up was a cause of action existing, if it all, in favor of both Huffman and Mitchell. It was not a liquidated claim. Only such claims, that is liquidated claims, can be set off against an action such as this; otherwise set-off would include counterclaim, which is not permitted in this State. Estate Co. v. Schmelzer & Sons Arms Co., 110 Mo. App. 406.

<p>APPELLATE PRACTICE: Motion for New Trial: Necessity of Exception. Where no exception to the action of tile court in overruling the motion for a new trial is saved, the merits of the case are not open to review on appeal.</p>

Mandamus. (1) The county court being a court of limited jurisdiction, it must appear that all the elements necessary to give jurisdiction exist at the time the court acts.

— Eon. E. L. McCune, Judge. (1) It must be proved if not beyond a reasonable doubt, at least with reasonable certainty, that the death was caused by the negligent act complained of, for which defendant is liable. In this sort of action a mere preponderance of the evidence is not sufficient. DeMart v. S. P. & M. Co., 21 Mo. App. 92; Bank v. Railway, 98 Mo.

— Eon. Hermann Brunibach, Judge. (1) A waiver presupposes knowledge of the thing to be waived. A party relying upon a waiver must prove that it was made with knowledge of all the facts by the party who thus releases his rights. In the absence of such knowledge there can be no waiver. Callies v. Modern Woodmen, 98 Mo. App. 521; Eyas v. Hanson, 14 Mo. App. 363; Thompson v. Ins. Co., 169 Mo. 12; Hearsh v. Ins. Co., 130 Mo. App. 457; Riley v. Ins. Co., 117 Mo.

— Son. O. A. Denton, Judge. There was a disagreement as to the amount of loss when the insured offered a sum in settlement, which insured refused to accept and thereupon the appraisal clause of the contract immediately became operative and no right of action could accrue to insured until there had been an appraisal of the amount of his loss or an effort put forth by assured to secure an appraisal. An action instituted before that, had been done, is prematurely brought.

<p>CONTRACTS: Evidence. In an action at law for a breach, of a contract, where there is substantial evidence in behalf of the party obtaining the verdict, the judgment thereon will be affirmed.</p>

— Eon. Wm. H. Martin, Judge. Statement filed before justice was insufficient. The sufficiency of statement was raised at every stage of the trial and in motions for new trial and in arrest of judgment, and the judgment should be reversed on that account. Butt v. Phelps, and cases cited, 79'Mo. 302; Mc-Allister v. Walker, 69 Mo. App. 496; McCreary v. Good, 74 Mo. App. 425; St. L., etc., Co. v. American, etc., Co., 82 M'o. App. 60; Calvert v. Hobbs, 107 Mo.

— Hon. James H. Blover, Judge. (1) Respondent was not obliged to coyer tbe feature of contributory negligence set up in appellant’s answer, because there was no evidence to support it. Ho-varka v. Transit Co., 191 Mo. 451; Fisher v. Transit Co., 198 Mo. 592.

— Eon. John G. Park, Judge. The court erred in refusing to give an instruction in favor of the defendant at the close of all of the evidence in the nature of a demurrer to the evidence. Boyd v. Railway, 105 Mo. 371; Guyer v. Railway, 174 Mo. 344; Yan Beach v. Railway, 171 Mo. 338; McGauley v. Trans. Co., 179 Mo. 583; Sites v. Knott, 197 Mb. 684; Markowitz v. Railway, 186 Mo. 350; Haley y. Railway, 197 Mo. 15; Fechley v. Traction Co., 119 Mo.

— Hon. Walter A. Powell, Judge. (1) The court erred in'the admission of the testimony of Dr. Krimminger in permitting the witness to state that the injury complained of did produce a certain result upon the plaintiff’s nervous system. This was the very question to he passed upon by the jury. Taylor v. Railroad, 185 Mo. 239; Glasgow v. Railroad, 191 Mo. 358; Thomas v. Railroad, 125 M'o. App. 131. (2) Plaintiff’s first instruction enlarges the issues made by his petition.

— Eon. James E. Blover, Judge. (1) It is fundamental that when an undertaking of parties is reduced to writing, in tbe absence of fraud, accident or mistake, it is conclusively presumed that the whole engagement and manner and extent of their undertaking were reduced to writing. Dexter v. MacDonald, 196 Mo. 391; Official, etc., Co. v. Weber, etc., Co., 130 Mo. App. 650; Plumb v. Cooper, 121 Mo. 676.

— Hon. L. J. JEJas-tin> Judge. The trial court is without power or authority to set aside a final judgment on default. It is in the discretion of the court to set aside default before final judgment, but the statute does not permit the filing of a motion after final judgment. R. S. 1889, sec. 770; Bil-lingham v. Miller, 115 Mo. App. 154; Burnes v. Burnes, 61 Mo. App. 612; Matthew v. Cook, 85 M'o. App. 286.

— Hon. George IP. Wanamaker, Judge. Under section 3401, R. S. of 1899, a bailor may loan personal property to a bailee and reclaim tbe same at any time within five years. Carter v. Feland, 17 M'o. 383; McDermott v. Barnum, 16 Mo. 114; Blount v. Harn-ey, 43 Mo. App. 644; Camp v. Railway, 62 Mo. App. 88.

— Hon. John A. Rich, Judge. (1) The calling of a special election by the city of Marshall under the provisions of the Local Option Law, was never made as required by law, and all proceedings in that regard by said city are without authority of law and are therefore void. R. S. 1899, secs. 5882, 5831, 5772, 5833, 3028.

<p>1. INTOXICATING LIQUORS: Instructions: Evidence. Where the information charges a sale of intoxicating liquors to a certain person on a certain day, and the evidence for the State is of one specific sale to one person on a certain day, it is error "to instruct the jury that they might find a verdict of guilty if they believed defendant sold liquor on any other day within a year.</p> <p>2. INSTRUCTIONS: Alibi. Where the court instructs for the defense that if the defendant was not at the place of sale on the day the evidence for the State tended to show he sold to the prosecuting witness, hut was at a distant place, he should he acquitted; an instruction authorizing the jury to consider other dates than that covered by the alibi, contradicts the former, and is error.</p>

<p>CRIMINAL LAW: Trial: Challenge of Juror. Wliere a juror is challenged for cause by the defendant and no exception taken to the action of the court in refusing to excuse him from the panel, no error can be based tbereon on appeal.</p>

<p>Appeal from Buchanan Criminal Court. — Eon. T. F. Ryan, Judge.</p>