Volume 141 — Missouri Appeal Reports

— Hon. James L. Fort, Judge. (1) The notice to a warrantor of land of tbe adverse suit therefor, in order to conclude him by the judgment therein, must be distinct, unequivocal, and expressly require him to defend such adverse suit. Wheelock v. Overshiner, 110 Mo. 100; McCrillis v. Thomas, 110 Mo. App. 699. (2) Cook .was a necessary party as to the tract claimed by him and was bound to defend that.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) The entire evidence showed that appellant had paid respondent the full amount due on the contracts sued on and there was absolutely no evidence to support the judgment in respondent’s favor. (2) The undisputed evidence shows an accord and satisfaction duly entered into and carried out by appellant and respondent by which the latter is forever estopped from recovering any sum from appellant.

Louis City Circuit Court, — Eon* Chas. C. Allen, Judge. (1).

Louis City Circuit Court. — Hon. War-mok Hough, Judge. The circuit court erred in giving, at defendant’s request, instruction IV. Held: under the same evidence which was submitted to the jury in this case, that appellant was appointed supervising engineer by the committee which was the agent for that purpose of all the companies. Wagner y. Electric Ill. Co., 177 Mo. 44; s. c. 82 Mo. App. 287.

Louis City Circuit Court. — Eon. James E. Withrow, Judge. The first instruction given for plaintiff was erroneous in these particulars: (a) It made defendant liable if he agreed to perform the services on a ten per cent basis, without indicating with whom or for whom he agreed to perform, (b) It interjected a misleading and inaccurate reference to the Strode case thus beclouding the real issue and confusing the jury, (c) It undertook to cover the entire case on the…

— Eon. J. L. Wort, Judge. The justice court had no jurisdiction in the attachment suit.

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. Where the motion for a new trial sets out that the verdict is against the weight of the evidence (as it does in this case), and the court grants a new trial without stating its grounds (as it did in this case), the appellate court will presume that the court awarded the new trial on that ground. Willard v. Car Co., 130 Mo. 529; Bank v. Wood, 124 Mo. 76; Hewett v. Steel, 118 M'o. 474.

Louis City Circuit Court. — No». Virgil Buie, Judge. (1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered at the close of the plaintiff’s case in chief. Brands v. Oar Co., 112 S. W. 511; Schmidt v. Distilling Go., 90 Mo. 284; Barney v. Railroad, 126 Mo. 872; Sullivan v. Railroad, 188 Mo. 1; American Brewing Co. v. Talbot, 141 M'o. 674; Houck v. Railroad, 116 Mo.

— Hon. Charles A. Denton, Judge. (1) That the note in question was paid in full by appellant is evidenced by the receipt given her by Mr. Lay, attorney for the legal holder of the note in the suit instituted against her, in which judgment was rendered thereupon for the full amount thereof. That an attorney of record has authority to collect the judgment is established by the following authorities.

— Eon. H. L. McOune, Judge. (1) The sale was void on account of combination Yof appellee with other bidders to prevent competitive bidding. Merritt v. Poulter, 96 Mo. 237; Durfee v. Moran, 57 Mo. 379; Neal v. Stone, 20 Mo. 296; Worten v. Hinckle, 20 Mo. 290; Brown v. Hogle, 30 Ill. 11'4; Singer Mfg. Co. y. Yarger, 12 Fed. 487; Slater v. Maxwell, 73 IT. S. 276; Herndon v. Gibson, 20 L. R. A. 545; Ker-wer y. Allen, 31 Iowa 578.

— Son. T. J. See-horn, Judge. (1) The refusal of the court to allow an answer to the question, Assignment I-(a), was error. Meade v. Arnold, 110 S. W. 656. (2) The exclusion of the letter of February 13, 1900, was error. Goncher v. Novelty Co., 91 S. W. 447; Hardin v. Railroad, 96 S. W. 681, 682. (8) The cross-examination of Sills was error. Wilkerson v. Eilers, 114 Mo. 245; Dry Goods Co. v. Mansur, 87 Mo. App. 113; State v. Stein, 79 Mo. 330; State v. Myers, 198 Mo. 255.

— Hon. T. J. Beehorn, Judge. (1) The court erred in refusing to sustain the demurrer offered by the defendant at the conclusion of plaintiff’s evidence, also erred in refusing to peremptorily charge at the conclusion of all the evidence that the plaintiff could not recover. Oliver v. Railroad, 9 So. 431; Wilmot v. Railroad, 106 Mo. 535; Ellinger v. Railroad, 153 Pa. St. 213, 25 Atl. 1132; Ransdale v. Railroad, 139 Pa.

<p>1. JURISDICTION: Appellate: Amount in Dispute. Where judgment was rendered in favor of plaintiff for $5,500 and subsequently after the accrual of interest in the amount of $132 plaintiff remitted $1,000 and agreed that judgment might be rendered on the verdict for $4,500 the effect of the remittitur was to nullify the judgment and to require the court to enter a new judgment for the amount of the verdict less the sum remitted. The new judgment could have been discharged by the payment of $4,500 which is the amount in dispute.</p> <p>2. EVIDENCE: Physical Condition: Remoteness. Where plaintiff's evidence tended to show injury to his wife’s private organs and nervous system rendering her an invalid and defendant introduced evidence to show that the womb was enlarged from causes antedating her injuries, and that the perineum had been lacerated in childbirth some years prior to her injury, evidence that five years and more prior to her injuries she was strong and vigorous, was not open to the objection of being too remote.</p> <p>3. -: -: -: -. It was material for plaintiff to show that from girlhood up to the time of the injury his wife was robust and vigorous and apparently in perfect health.</p> <p>4. INSTRUCTIONS: Enlarging Issues. Where plaintiff specifies certain injuries in his petition he will be held to his specifications both in his proof and his recovery.</p> <p>5. -: -: -. It would have been better if the consideration of the jury had been expressly confined to the injuries specified in the petition, but the omission of such express restriction would not constitute reversible error unless the evidence discloses other injuries than these pleaded.</p> <p>6. -: -: -: Scope of Testimony. Where there was evidence that plaintiff’s wife complained at first of pain in her arm, but no attempt was made to show the existence of such injury, it is inconceivable that the jury could have considered such injury in making up its award of damages.</p> <p>7. -: -: -: -: -. Where the impairment of the ovaries and the subsequent formation of an abscess were natural results of the injuries pleaded, the jury were properly permitted to consider them in its estimate of the damages.</p> <p>8. -: -: -. Where it is alleged that the injuries are permanent and that loss of society and services has resulted therefrom and the condition which produced such loss is still existent and will continue such averment is a sufficient equivalent for the specific statement that such loss will continue.</p> <p>9. DAMAGES: Excessive Award. Where the evidence shows that plaintiff’s wife was a strong vigorous woman in perfect health and by the .injury she was left broken in health and a helpless and incurable cripple, a judgment of §4,500 was not excessive, and the fact that the jury awarded $1,000 in excess of that amount is not sufficient, in itself, to warrant the influence that the jury were guided by improper motive.</p>

— Eon. A. D. 2f~ Eurnes, Judge. (1) No city can enter into any contract except in writing. R. S. 1899, sec. 6759. And tbe entire work must be done after, and not before, the making of the contract. Prior’s hid does not specify thirty days in which to complete the work, nor any time at all; nor does the advertisement for bids specify any time. On October 2,1907, the board of aldermen accepted Prior’s bid, but added that the work should be completed in thirty days.

— Hon. John Q-. Park, Judge. (1) Tbe court erred in sustaining defendant’s objection to tbe introduction of any evidence on tbe ground that plaintiff’s petition did not state a cause of action. Plaintiff’s petition states a cause of action.

— Hon. H. M. Ramey, Judge. (1) The merger of the two districts annulled the executing contracts sued upon, leaving the defendant district liable only for the value of services performed at the time of the merger. 7 A. and E. Ency. of Law (2 Ed.), 116; People v. Insurance Co., 91 N. Y. 174; Mumma v. Potomac Co., 8 Peters 287; Read v. Bank, 23 Me. 321; Jones v. Judd, 42 N. Y. 41; Segall v. Eaton, 165 Ill. 550.

— Son. W. B: Teasdale, Judge. (1) Plaintiffs having had notice that the corn was in a stock car and having failed to object at the time are estopped from objecting now. (2) The plaintiffs are hound by the bill of lading which provides that plaintiffs shall take the risk arising from the corn being loaded in a stock car.

— Hon. John P. Butle^ Judge. (1) The judgment should be reversed as to the insurance on merchandise, because there was a total failure on the part of respondent to “keep books of account correctly detailing all purchases and sales of said stock.” Gibson v. Ins. Co., 82 Mo. App. 515; Keet-Roundtree Dry Goods Co. v. Ins. Co., 100 Mo. App. 504-514; Johnson et al. v. Ins. Co., 120 Mo. App. 80-86; Hollenbeck v. Ins. Co., 138 Mo. App. 57-60; Tenn. Mut. Ins.

— Hon. Jno. P. Butler, Judge. (1) The proofs of death offered in evidence by respondents were admissible for no purpose except to show that proofs had been duly furnished; their contents were not admissible as evidence for respondents. 2 Bacon, Benefit Societies (3d Ed.), 471; Breckenridge v. Insurance Co., 87 Mo. 72; Baile v. Insurance Co., 73 Mo. 371. (2) Sections 7890 and 7891 of the Revised Statutes 1899, have no application to the defense sought to be made by appellant.

— Hon. H. L. Me-Cune, Judge. (1) Tbe attorney’s lien law of 1901 does not vest any right of property in the attorneys for plaintiff, but gives them a lien for the purpose of security only, hence plaintiff has an absolute right to settle her cause of action without the consent of her attorneys. Laws 1901, p. 46; O’Connor v. Transit Co., 198 Mo. 641. (2) If Rieger and Carmean are entitled to recover at all in this proceeding they cannot recover over $200.

— Eon. Francis E. Trimble, Judge. (1) Tbe court erred in refusing instructions numbered 2, asked by appellant, there is no evidence in the case upon which the respondent is entitled to recover, and upon the whole evidence the judgment should have been for appellant. Anltman & Co. v. Gaggs, 50 Mo. App. 280.

— Hon. Walter A. Powell, Judge. The court erred in sustaining defendant’s motion for a new trial on tbe ground that plaintiff’s instructions were wrong. Plaintiff’s instructions are the law ■ and the court committed no error in giving them. Loftus v. Met. St. Railway Co., 220 Mo. 481; Green Co. ex rel. v. Wilhite, 29 Mo. App. 459; Draper v. Fitzgerald, 30 Mo.

— Eon. E. L. McCune, Judge. (1) Jurisdiction of the appeals is in the Supreme Court and the causes should be transferred to that court. In re Opening Essex Aye., 44 Mb. App. 288; State ex rel. y. St. Louis Court of Appeals, 97 Mo. 276; Mining Co. v. Joplin, 48 Mo. App. 601; State ex rel. y. Smith, 177 Mo. 69. (2) The proceedings were irregular and were not due process of law. Schaeffer y. Siegel, 7 Mo.

— Hon. A. D. Burnes, Judge. (1) A right of recovery in the plaintiff may exist though the facts are not such as to show a right of recovery in any of the common law forms of action. (2) A ministerial officer acting judicially is liable for damages if his acts be wilful and malicious. (8) A judicial officer is liable for his wrongs if the plan to commit them is formed maliciously before the decision complained of is rendered.

— Hon. iB. G. Thurman, Judge. (1) A deed or chattel mortgage does not convey title unless the name of the grantor appears in the body of the instrument. McFadden v. Rogers, 70 Mo. 421; Houx v. Batteen, 68 Mo. 84; Golden v. Tyer, 180 Mo. 196; Martindale on Conveyancing, p. 62. (2) In replevin the value of the property at the time of the trial is to be determined. In this case there was no such evidence. Oil Co. v. Drug Co., 84 Mb.

— Eon. Chas. A. Cen-tón, Judge. (1) Tbe court erred in instructing tbe jury to find for tbe defendant.

— Eon. B. Cf. Thurman, Judge. (1) Instructions numbered 1, 2 and 3 given at the instance of the plaintiff, are fatally erroneous under the rule laid down by this court in Knight Brothers v. Railroad, in that they permit the jury to enter the remote field of conjecture. Knight Brothers v. Railroad, 122 Mo. App. 38.

— Eon. B. G. Thurman, Judge. (1) In passing on a demurrer to tbe evidence, the testimony of plaintiff and bis witnesses is to be taken as true; and further, plaintiff is entitled to every reasonable and favorable inference of fact properly deducible therefrom. Forbes v. Dunnavant, 199 Mo. 193. (2) Every wrongful breach of contract carries with it the right to at least nominal damages. Fulkerson v. Eads, 19 Mo. App. 620.

— Hon. Wm. H. Martin, Judge. (1) Tbe issues in this case, as stated in tbe petition, are: First.

Jackson Circuit Court. — Hon. Hermann Bruiribach, Judge. (1') That it is negligent for employees to disobey their foreman, that they assume the risk of doing a certain piece of work in a manner contrary to his instructions, and if such disobedience is the proximate cause of the injury resulting therefrom, the injured employee cannot recover, is well established by the following cases: York v. Railroad, 117 Mo. 405; Maxfield v. Granson, 131 Fed. 841; Holmes v. Brandenbaugh,…

— Eon. Thos. J. Beehorn, Judge. (1) The demurrer to the evidence should have been sustained at the close of plaintiff’s case, and at the close of the whole case. (2) It is reasonable that if plaintiff had on high heel shoes at the time she stepped on the brick, of which there was evidence, that it was more difficult for her to adjust her foot and balance herself so as to prevent the fall than it would have been had she had on a common-sense shoe.

— Hon. W. 0. Thomas, Judge. (1) As to appellant’s assignment of errors numbers 1, 2, 3 and 7, be respectfully contends that no negligence was charged against the defendant and that the proof failed to show any negligence on his part. All the proof goes to show that he used an unusually high degree of care and caution with reference to ascertaining as to the safety of the wall. Turner v. Haar, 114 Mo. 335; Klebe v. Distilling Co., 207 Mo. 480.

— Hon. John Q-. Park, Judge. (1) Defendant’s instruction in the nature' of a demurrer at the close of all of the evidence should have been sustained- for the reason that the plaintiff had failed to properly plead or prove the statutes of another State, and the note on its face is void for the reason that it calls for twelve per cent interest. Clark v. Barns, 58 Mo. App. 667; Hatch v. Hanson, 46 Mo. App. 330; Lee v. Railroad, 195 Mo. 400.

— Hon. Thos. J. Beehorn, Judge. Tbe suit baying been commenced witbin ninety . days after tbe filing of tbe lien, it was proper to permit tbe plaintiff to file its amended petition making new parties who had an interest in said property by virtue of deeds of trust upon tbe same, and such new parties could be brought in after tbe period of ninety days bad elapsed from tbe time of tbe filing of tbe lien. Scbnlenberg y. Hayden, 146 Mo. 596; Lumber Co. v_. Harris, 131 Mo.

Appea.1 from Jackson Circuit Court. — Hon. Walter A. Powell, Judge. (1) It is not permissible, either at common law or under the statute, to traverse the allegations of the petition, and then, as new matter, confess and seek to avoid them; and where this is attempted, plaintiff is entitled to judgment on the. pleadings. Bank v. Stone, 93 Mo. App. 292, and authorities there cited; Price v. Mining Co., 83 Mo. App. 474; State ex inf. v. Jockey Club, 200 Mo. 64.

<p>1. NEGLIGENCE: Railroad Crossing: Contributory Negligence: . Humanitarian Doctrine. Plaintiff sued for the death of his wife who was killed at a railroad crossing. The petition charged in its first count a negligent failure to maintain a flagman at the crossing, and excessive speed of the train, causing the death, both of which were sustained hy the evidence. It was also established that if the deceased had used due care she would have seen and avoided the train. The petition charged in its second count a cause of action under the humanitarian doctrine. Instructions were given submitting the case under the first count, but not under the second, and a verdict was returned for plaintiff. Held, plaintiff was not entitled to recover under the first count of his petition, because his wife was guilty of contributory negligence as a matter of law.</p> <p>2. CONTRIBUTORY NEGLIGENCE: Presumption. Deceased, under the facts in this case, had no right to leave her position of safety, relying on the presumption that the train was running at a lawful rate of speed.</p> <p>3. -: Humanitarian Doctrine. .The virility of the defense of contributory negligence is not weakened hy the humanitarian doctrine. It is only when the negligence of the injured person has been superseded in the chain of causal events hy negligence of defendant in failing to reasonably employ an opportunity to discover the peril and avoid the injury that contributory negligence ceases to he a good defense.</p> <p>4. NEGLIGENCE: -: -. In order to authorize a recovery in such a case as this, plaintiff must show that the engineer of the train saw, or ought to have seen, that deceased was about to put herself in a place of danger, in time to have prevented her injury.</p>

— Eon. Jas. H. ¡Mover, Judge. (1) It is certainly true that a court of equity will lend no assistance toward perfecting a voluntary contract or agreement for the creation of a. trust, nor regard it as binding so long as it remains executory. Before the trust deed, or any of its parts, could be enforced between the parties hereto, the transfer and delivery from the donor to the trustee of the $2,000 note must he absolute and unqualified.

— Eon. R. 8. Ryors, Special Judge. (1) Under tbe provisions of section-3029 of tbe Revised Statutes of Missouri, 1899, a valid publication of a local option election must bave been made in a newspaper published witbin tbe territorial limits of tbe county affected by tbe local option vote. That tbe above is a proper interpretation of said section appears: From tbe context of tbe local option law. R. S. 1899, secs. 3027, 3028. From statutes on cognate subjects.

— Eon. Louis E off man, Judge. (1) Tbe court erred in refusing defendants’ third instruction. Tbe mortgage provides on its face in tbe condition clause that if tbe $24.50 note, with interest is paid then tbe conveyance is to be void. In Feller v. McKillip, 109 Mo.

— Eon. Waiter A. Powell, Judge. (1) The court committed error in overruling defendant’s demurrers to the evidence, and in refusing its peremptory instruction directing a verdict in its favor. Meyers v. Glass Co., 129 Mo. App. 556; Marshall v. Hay Press Co., 69 Mo. App. 256; Hicks v. Railroad, 46 Mo. App. 304; Cox v. Granite Co., 39 Mo. App. 424. (2) The verdict is excessive.

— Eon. Thos. J. Sechorn, Judge. (1) The question of plaintiff’s negligence should never be submitted to the jury where there is no dispute as to the facts and where on such facts no fair difference of opinion can exist as to the presence or absence of such negligence. Beach on Contributory Negligence (2 Ed.), secs. 446, 447, 449; Am. and Eng. Ency. of Law (2 Ed.), p. 456; Glaser v. Rothschild, 120 S. W. 1-9; Kelly v. Stewart, 93 Mo. App. 47; Brown v. Railroad, 31 Mo.

— Eon. Ralph 8. Latshaw, Judge. (1) Tbe motion for new trial was filed after the time limited in the statute, and for that reason nothing occurring at the trial is presented to this court for review. R. S. 1899, sec. 2689; State v. Pritchett, 219 Mo. 696,119 S. W. 386. To the same effect see the following cases: State v. Rosenblatt, 185 Mo. 114; State v. Brooks, 92 Mo. 591; State v. Maddox, 153 Mo. 473.

- — lion. Francis E. Trimble_, Judge. (1) It was the duty of defendant to provide reasonable rules of safety for 'the protection of its employees; it was the duty of the employees to obey such rules, and for injuries received by the employees while violating the rules and in consequence of disobedience thereof, no recovery could be had.' The breach or violation of the master’s known system and order of business by the servant amounts to such contributory negligence on the…

<p>Appeal from Bates Circuit Court. — Son. O. A. Benton, Judge.</p> <p>(1) The petition in this case states no cause of action and timely objection was made to the introduction of evidence thereunder for that reason. The petition charges that plaintiff went to the turntable at the request of Charles Scales. The duties of this man Scales are set forth in paragraph 9 of the petition. There is no allegation in the petition that Scales, a mere engine watcher, had any authority to procure the services of plaintiff or any other person to assist in the work of defendant. Without an allegation of some authority being vested in Scales to do such a thing, the petition is fatally defective. Snyder v. Railroad, 62 Mo. 413. The Snyder case has been cited in a number of cases, and always with approval. Farber v. Railroad, 116 Mo. 81; Stringer v. Railroad, 96 Mo. 299; M'ilton v. Railroad, 193 Mo. 57; Wahl v. Transit Co., 203 Mo. 271, et seq. (2) Defendant’s instruction in the nature of a demurrer should have been sustained, because there is no evidence to show any authority in Charles Scales to request assistance from plaintiff. Snyder v. Railroad, 60 Mo. 413; Sherman v. Railroad, 72 Mo. 62; Springer v. Railroad, 96 Mo. 299; Walker v. Railroad, 121 Mo. 575; Morgan v. Foley, 33 Mo. App. 250; Hartman v. Muehlbach, 64 Mo. App. 565; Church v. Railroad (Minn.), 52 N. W. 647.</p> <p>(1) Plaintiff’s petition states a good cause of action and appellant’s counsel in his criticism of the petition in this respect failed to take notice of paragraph ten of the petition, reciting that it had been the custom for years for boys of the age of plaintiff to assist the regular employees of .defendant in turning this turntable, and that this was by and with the knowledge and acquiescence of defendant. (2) If it should be conceded that the evidence does not show by implication, the acquiescence of the railroad company in the employment of hoys in the doing of this work, still the evidence shows without contradiction that for a period running back as much as seven years they had been so engaged, and necessarily Avith the knoAvledge of the defendant’s servants, whose duty it was to turn this table. Such being the fact, it was the duty of the defendant to be watchful and careful in the doing of this work so as not to injure one of whose probable presence defendant was under the circumstances bound to take notice, and Avhose immature judgment and want of knowledge would prevent his realizing the dangers incident to the operation of this table. Reilly v. Railroad, 94 Mo. 608; Gurley v. Railroad, 104 Mo. 228; Schmitz v. Railroad, 119 Mo. 270; Montgomery v. Railroad, 181 Mo. 502; Scullin v. Railroad, 184 Mo. 707; Stiles v. Knott, 197 Mo. 717. (3) The refusal of the court to exclude the evidence offered by plaintiff showing that boys of the age of plaintiff had been in the habit of being present and assisting in the turning of the turntable was proper, the evidence being pertinent to the question of defendant’s alleged negligence, resulting in plaintiff’s injury. Gurley v. Railroad, 104 Mo. supra; Fiedler v. Railroad, 107.Mo. 645; Schmitz v. Railroad, 119 Mo. 270.</p>

— Hon. David E. Blair, Judge. (1) This action, being based upon negligence, it was incumbent upon plaintiffs, in order to bold defendants to prove tbe negligence, and that tbe negligence caused tbe injury. Breen v. Cooperage Co., .50 Mo. App. 212; Slepp v. Railroad, 85 Mo. 229; 6 Tbomp. Neg. 657.

— Hon. John T. Moore, Judge. (1) Where it appears from the evidence that the judgment was paid by one of the defendants therein, it becomes extinct, and an execution issued thereon was wholly unauthorized, and should have been quashed. McDaniel v. Lee, 37 Mo. 204; Hull v. Sherwood, 59 Mo. 172; Burton v. Rutherford, 49 Mo. 255; Johnson to use v. Grove, 60 M'o. App. 170.

Writ of Error from Pulaski Circuit Court. — Eon. L. B. Woodside, Judge. (1) Under, the law and the evidence the finding of the court should have been for the plaintiffs, on the question of rescission of the contract. 24 Am. and Eng. Ency. Law (2 Ed.), 647, 611, 631; 29 Am. and Eng. Ency. Law (2 Ed.), 660.

— Hon. W. N. Evans, Judge. (1) A mere power uncoupled with an interest dies with the grantor; and the interest that will cause the power to survive the death of the grantor must be an interest or title in the thing, which interest or title is conveyed with the power, and not left to he conveyed afterwards with the exercise of the power. Hunt v. Rousmanier, 8 Wheat. (21 U. S.) 174; Gardner v. Bank, 10 L. R. A. 45.

— Hon. James T. Neville, Judge. The court erred in admitting improper evidence offered by the plaintiff and in excluding competent, relevant and material evidence offered by defendant.

— Hon. James T. Neville, Judge. (1) The motion to strike out a part of defendant’s answer is in the nature of a demurrer, and if that part of the answer included in the motion does not state a defense, the motion should have been sustained, and pleading oyer by filing a reply does not waive the point. Elfrank y. Seiler, .54 Mo. 134; Ryans v.. Prior, 31 Mo. App. 561; Donahue v. Bragg, 49 M'o. App. 276; Haase y. Nelson, 64 Mo. App. 131.

1. CIRCUIT COURTS: Jurisdiction: Reinstatement of Case at Term Subsequent to Term at Which it was Dismissed. Where a cause has been dismissed by plaintiff, and no further entry or order concerning the case is made at that term, then after the adjournment of that term the case was out .of court and the court lost all jurisdiction thereof and was powerless to reinstate it, or make any orders at a subsequent term without the voluntary appearance and consent of all the parties.

— Hon. L. B. Woocl-side, Judge. (1) In tbe absence of service upon tbe defendant or seizure of property within tbe jurisdiction of tbe court, tbe court was without jurisdiction whatever. 22 Ency. PI. and Pr., 21; Hitch v. Stonebreaker, 125 Mo. 228; Latimer v. Railroad, 43 Mo. 105; Moss v. Pitch, 212 Mo. 484; Smith v. McCutcheon, 38 Mo. 415; Wilson v. Railroad, 108 Mo. 580; Abbott v. Shepard, 44 Mo. 273; Lovejoy v. Allen, 33 Me. 414, 54 Am. Dee. 630; Alley v. Caspari, 6 Am.

— Hon. L. B. Wood-side, Judge. (1) The terms of this clause are plain and unambiguous and required no construction. It was the duty of the court to give it effect according to its terms. Koehring v. Muemminhgoff, 61 Mo. 408; Staluth v. Guaranty Co., 81 Mo. App. 627; Electric Co. v. Bry., 88 Mo. App. 135; Meyer v. Christopher, 176 Mo. 580; Hal-liday v. Lesh, 85 Mo. App. 285; Drug Co. v. Sanders, 70 Mo.

— Son. L. B. Wood-side, Judge. (1) The court erred in refusing appellants’ peremptory instruction to acquit offered by them at the close of the State’s case. If there is no evidence tending to prove the commission of the crime, it is the duty of the court to so declare. State v. Brosius, 39 Mo. 534; State v. Daubert, 42 Mo. 242. (2) There was no evidence at all to show that the alleged disturbance occurred before the minister dismissed the congregation.

— Hon. Charles A. Denton, Judge. '(1) There was neither any showing, nor offer to show, that the land would have sold better in separate lots than it did as a whole. No such claim was made in the petition. The mortgagor, Journey, requested the land to be sold in a body. 28 Am. and Eng. Ency. Law (2 Ed.), p. 806; Kellogg v. Carrico, 47 Mo. 157; Dunn v. McCoy, 150 Mo. 566; Lazarus v. Caesar, 157 Mo. 212. (2) The court should have sustained defendant’s demurrer to the evidence.

- — Hon. E. E. Porterfield, Judge. (1) The charter of Kansas City, sec. 21, art. 9, requires a resolution to be passed declaring the proposed work to be necessary. No such resolution was passed. This was a jurisdictional step and not being done the taxbills are void. Sec. 21, art. 9, charter of Kansas City; Hoyt v. City of East Saginaw, 19 Mich. 39; Blanchard v. Barre, 77 Yt. 420; Paving Co. v. O’Brien. 128 Mo. App. 267; Kirksville v. Coleman, 103 Mo.

Appéal from Jackson Circuit Court. — Hon. E. E. Porterfield, Judge. (1) Defendant purchased a machine of standard make and daily inspected the same. He thereby performed his full duty. Little v. Head, 69 N. H. 494; 1 Labatt, Master and Servant, secs. 44, 153. The doctrine of res ipsa loquitur did not apply in this case. Breen v. Cooperage Co., 50 Mo. App. 202; Kremer v. Mfg. Co., 120 Mo. App. 247, 252; Deckard v. Railroad, 111 Mo. App. 117; O’Donnell v. Baumm, 38 Mo.

— Eon. E. E. Por-terfield, Judge. (1) The demurrer to the plaintiff’s evidence should have been sustained because there was no evidence upon which a jury was entitled to pass. Epper-son v. Cable Co., 155 Mo. 346; Showalter v. Fairbanks, Morse & Co., 88 Wis. 376; Whaley v. Coleman, 113 Mo. App. 598; Knorpp v. Wagner, 195 Mo. 637; Myers v. Glass Co., 129 Mo. App. 557; Pulley v. Oil Co., 136 Mo.

— Son. Wm. H. Martin, Judge. (1) No negligence was shown on tbe part of tbe defendant in relation to tbe shipment. Elliott on Railroads, sec. 1482; Ecton y. Railroad, 125 Mo. App. 223; McCrary y. Railroad, 109 Mo. App. 569. (2) Instruction No. 1 giyen on the part of the plaintiff is erroneous, in defining the measure of damages. Hutchinson on Carriers (3 Ed.), sec. 1370; Birney y. Railroad, 20 Mo. App. 470; Gelvin y. Railway, 21 Mo. App. 273.

— Hon. Louis Hoffman, Judge. (1) Defendant was not negligent. Howard y. Eailroad, 173 Mo. 524; Herington y. Eailroad, 104 Mo. App. 663. (2) The employer is required to use only reasonable and ordinary care in providing safe appliances and safe places. to work. Howard y. Eailroad, 173 Mo. 524; Franklin y. Eailroad, 97 M'o. App.-473. (3) The master is not liable for a defect unless be knew or by tbe exercise of ordinary diligence should have known, of the defect.

— Hon. Louis Hoffman, Judge. (1) The court erred in refusing plaintiff’s first instruction. Tbe plaintiff made out a complete case by the evidence. R. S. 1899, secs. 4115, 4123, 4127, 4128; Garroutte v. White, 92 Mo. 237; Williams v. Bra-den, 63 Mo. App. 513; Phillips v. Burrows, 64 Mo. App. 351. (2) The court erred in submitting the question of waiver to the jury. Fulkerson v. Lynn, 64 M'o. App. 653.

— Hon. Thomas J. Beehorn, Judge. (1) The doctrine of res ipsa loquitur does not apply in this case. Breen v. Cooperage Co., 50 Mb. App. 202; Kremer v, Mfg. Co., 120 Mo. App. 247, 252; Deckard v. Railroad, 111 Mo. App. 117; O’Donnell v. Baum, 38 Mo. App. 245. (2) An employer is not liable for an injury caused by a “latent” defect; that is to say, one which is not discoverable by a reasonable inspection.

— Eon. Nick M. Bradley, Special Judge. The information in this case is fatally defective in, that it fails by the nse of the language of the statute or otherwise to charge any offense. State v. Umphrey, 40 Mo. App. 827. (1) The information is in the exact language of the statute and this court has repeatedly held that in charging an offense of this kind, that is sufficient. State v. Fare, 89 Mo. App. 110; State v. Parker, 39 M'o. App. 120; State v. McDaniel, 40 Mo.

— Eon. John 8. Butler, Judge. (1) The law of 1905 (Session Acts 1905, p. 95), authorizing a foreign administrator to sue on a cause of action arising in another State is unconstitutional and void for the reason the Legislature of this State has no power or authority to confer on an officer appointed by the courts of another State, the right to withdraw assets under its exclusive control and jurisdiction, and take them to another jurisdiction without the consent or authority…

— Hon. B. G. Thurman, Judge. (1) Testing the eyes with instruments in order to prepare and fit tbe proper glasses, is not practicing medicine. People y. Smith, 69 N. E. 810.. (2) The court erred in admitting evidence that defendant advertised himself as a doctor. (1) The indictment in this case is good. It follows the exact language of approved precedent. State v. Davis, 194 Mb. 485.

— Hon. Walter A. Powell, Judge. The agreement was within the Statute of Frauds and therefore not enforcible. R. S. 1899, sec. 3418. The action should have been brought in Kaw township. Rottman v. Fix, 25 M'o. App. 571; Rottman v. Pohlman, 28 Mo. App. 399; Osborne v. Emery, 51 Mo. App. 413; Gill v. Reed, 55 Mo. App. 246; Frussel v. Williams, 87. Mo. App.. 518.

— Eon. E. E. Por-terfield, Judge. (1) The conditions which caused the accident were conditions that arose as a necessary incident to the operation of defendant’s casing room and the machines therein, and there was no negligence on défend-ant’s part. Brands v. Car Co., 213 Mo. 707; Bohn v. Railroad, 106 Mo. 439; Steinhauser v. Spraul, 127 Mo. 562; Cbrismer v. Telephone Co., 194 Mo. 189; Harrington y. Railroad, 104 Mo. App. 670.

— Eon. John (J. Parle,, Judge. (1) There was a failure of proof that the motorman committing the assault was acting within the scope of his employment. ■ Parber y. Railroad, 32 Mo. App. 381; McPeak y. Railroad, 128 Mo. 636, and cases cited; Jones v. Packet Co., 43 Mo. App. 410. (2) The court erred in overruling defendant’s application for a continuance.

— Eon. Walter A. Powell, Judge. (1) The contract of the attorney and client is not void on the grounds of public policy, because it prohibits settlement without the attorney’s consent. Laws of Missouri, 1901, p. 46; Beagles v. Robertson, 135 Mo. App. 306; Lipscomb v. Adams, 195 Mo. 530; Young v. Transit Co., 109 Mo. App. 235; Curtis v. Railroad, 118 Mo. App. 345. (2) Because a contract contains a penalty ■ against its violation, the whole contract is not rendered void.

— Eon. Thos. J. Beehorn, Judge. (1) In the case of vendee’s wrongful refusal to receive and pay for goods, the vendor cannot treat the property as his own, or exercise dominion over it and at the same time sue vendee for the purchase price. Campbell v. Woods, 122 M'o. App. 719; Lbr. Co. v. Lbr. Co., 51 Mo. App. 565; Vinegar & Spice: Co. v. Wehrs, 59 Mo. App. 493; Walker v. Nixon, 65 Mo. App. 326; Range Co. v. Merc. Co., 120 Mo. App. 438; Mfg. Co. v. Gilpin, 120 Mo.

— Hon. Jno. Gf. Parle, Judge. (1) Defendant’s demurrer to plaintiff’s evidence should have been sustained. (2) The ruling* of the trial court in admitting evidence after the motion for a new trial was overruled is error. St. Louis v. Brewing Co., 96 Mo. 677; Danforth v. Railroad, 123 Mo. 196; Taylor v. Switzer, 110 Mo. 410; Smith v. Ins. Soc., 101 Mo. App. 696. (3) The court erred in giving* declarations of law numbered three and six.

— Eon. E. E. Por-terfield, Judge. (1) Allowance to widow by probate court and af-firmance thereof on appeal to circuit court were not res adjudicada on question of validity of marriage. Probate court has no equitable powers. Church y. McEl-hinney, 61 Mo. 543; Butler y. Lawson, 72 Mo. 227; Church y. Robertson, 71 Mb. 326; Conley y. Truitt, 63 Mo. App. 356; Johnson y. Jones, 47 Mo.

<p>Appeal from Jackson Circuit Court. — Hon. James H. Clover, Judge.</p> <p>(1) There was no substantial evidence to sustain a verdict for the plaintiffs. Powell v. Railroad, 76 Mo. 80; Commissioner v. Clark, 94 U. S. 284; Bank v. Bank; 10 Wall. 639; Jackson v. Hardin, 83 Mo. 175; Avery v. Fitzgerald, 94 Mo. 207; Long y. Moon, 107 Mo. 338; Moore v. Railroad, 28 Mo. App. 622; Peck v. Railroad, 31 Mo. App. 123; Znrflnh v. Railroad, 46 Mo. App. 636; Peffer y. Railroad, 98 M'o. App. 291; Railroad v. Shir-tle, 97 Pa. St. 450. (2) The evidence shows the grossest kind of negligence on the part of the deceased, which was the direct and proximate cause of the accident. Kitzberger y. Railroad (Neb.), 30 Am. and Eng. R. Cases (N. S.), 275; Teuker y. Railroad (Pa.), 32 Am. and Eng. R. Cases, 54; Dolphin y. Railroad (Mass.), 29 Am. and Eng. R. Cases, 341; Fielding v. Railroad (Neb.), 38 Am. and Eng. R. Cases, 769; Aerkfetz v. Humphrey, 145 U. S. 418. (3) No notice of the accident, was served on the defendant, as required by the statutes of the State of Kansas. Sec. 6313, Gen. Stat. of Kan. 1905 (Dassler). (4) Under the statutes of the State of Kansas suit could be maintained only .in the county where the accident occurred, which was Saline county, Kansas, or in the county where defendant had its principal office and place of business in the State of Kansas, which was Atchison county. Sec. 4921, Gen. Stat. of Kan. 1905 (Dassler). (5) The deceased and the plaintiffs all being aliens, the plaintiffs were not entitled to the benefit of the statutes of Kansas under which this suit was prosecuted. Sec. 4872, Gen. Stat. of Kan.; Deni y. Railroad, 181 Pa. St. 525.</p> <p>(1) The demurrer to the evidence was without merit and properly overruled. Charlton v. Railroad, 200 Mo. 413; Mockowik v. Railroad, 196 Mo. 550; Forbes v. Dunnavant, 198 Mo. 193; St. Louis v. Railroad, 114 Mo. 13; McFern v. Gardner, 121 Mo. App. 1. (2) The Kansas notice statute pleaded by defendant only applied to the negligence of fellow servants and is not pertinent to this case, although plaintiffs’ testimony established a substantial compliance therewith. Railroad y. Little, 75 Kan. 716, 90 Pac. 447; Mitchell v. Milling Co., 12 Colo. App. 277, s. c., 26 Colo. 284, 58 Pac. 28; Ryalls y. Mills, 150 Mass. 190, 5 L. R. A. 667. (3) Actions on death statutes of other States may be maintained in the Missouri courts. Lee y. Railroad, 195 Mo. 400; Burdict v. Railroad, 123 Mo. 221; Gray y. McDonald, 104 Mo. 303; Hennessy y. Brewing Co., 63 Mo. App. I'll. (4) An alien is entitled to maintain an action for wrongful death. The later American and English decisions establish this right. Gaska y. Car & Foundry Co., 127 Mo. App. 169; King of Prussia v. Kueppers, 22 Mo. 550; Philpott y. Railroad, 85 Mo. 164; Romano v. Brick Co., 125 Iowa 591, 101 N. W. 437, 68 L. R. A. 132; Bonthron y. Light & Fuel Co. (Ariz.), 71 Pac.-941, 61 L. R. A. 563; Mulhall y. Fallon, 176 Mass. 266, 57 N. E. 386, 54 L. R. A. 834; Yetaloro v. Perkins, 101 Fed. 393; Renlund y. Mining Co. (Minn.), 93 N. W. 1057; Coal Co. y. Patraytis, 195 Ill. 215, 63 N. E. 94; Tanas y. Gas Co., 84 N. Y. Supp. 1053; Knight y. Railroad, 108 Pa. St. 250; Luke y. Calhoun, 52 Ala. 115; Railroad y. Higgins, 85 Tenn. 620; Davidson y. Hill, 70 L. J. Q. B. 788; The Explorer, L. R., 3 Adm. & Ecc. 289. (5) The court did not commit error in permitting Tom Philes to testify in rebuttal. Wheeler y. Land Co., 193 Mo. 279; Garland y. Smith, 127 Mo. 567; State y. Murphy, 118 Mo. 7; Tierney y. Spiva, 76 Mo. 279.</p>

— Hon. H. L. McOune, Judge. (1) The Missouri court must determine its jurisdiction for itself. Huntington y. Attrill, 146 U. S. 657; Hunt y. Searcy, 167 Mo. 158; Malloy v. Hide & Leather Co., 148 Fed. 482. (2) The cause of action is in plaintiffs (See authorities under point 8, next following). Guerney y. Moore, 181 Mo. 650; Gay y. Orcutt, 169 Mo. 400; Thompson on Corp., yol. 7, secs. 8530-1.

— Eon. James E. glover, Judge. (1) If plaintiff’s testimony, to the effect that he slipped and his hand was thrust down into the knives while the machine was not moving, be uncorroborated and be further contrary to all the physical facts appearing in evidence, it will not support a verdict.

— Hon. Hermann Brumbaelc, Judge. Plaintiff made out a prima facie case; it was shown that no alarm bell was rung as the car went around the curve; that this curve was dangerous and no watchman was stationed there; that the car went around this curve at an unreasonable rate of speed; that had the motorman kept an outlook for pedestrians he could have seen Mr. Allen on or approaching the track and could have avoided injuring him; that even going at eight miles an hour, the…

— Eon. R. G. Thurman, Judge. (1) The evidence showed a failure on the part of plaintiff to comply with the iron-safe clause. The alleged inventory was not an itemized inventory. Roberts, Willis & Taylor v. Insurance Co., 48 S. W. 559. (2) The hooks kept by plaintiff did not clearly and plainly present a complete record of the business transacted, including all purchases, sales and shipments of said stock, both for cash and credit.

— Hon. Thomas J. Seehorn, Judge. (1) At common law, where the owner of property entitled to possession thereof enters the premises, the person wrongfully in possession has no civil remedy. Krevet v. Meyer, 24 Mo. 107; Yeates v. Allin, 2 Dana 184; Reed v. Price, 30 M'o. 446; Barbarick v. Anderson, 45 Mo. App. 272; Hyatt v. Wood, 4 Johns, (N. Y.), 150; Turner v. Meymott, 1 Bing. 158; 8 Eng. Com. L. Rep. 450; Todd v. Jackson, 26 N. J. Law, 525, 532.

— Hon. John P. Butler, Judge. (1) The court erred in permitting the respondent to introduce evidence under his petition, when the petition failed to state the items of the account sued on, and did not' have attached to it an itemized statement of the account between the plaintiff and the defendant as alleged partners. Savings Assn. v. Morris, 52 Mo. App. 612; Dawson v. Quillen, 61'Mo. App. 676; R. S. of Mo. 1899, sec. 630; Mangelsdorf Co. v. Seed Co., 132 Mo. App. 511.

— Hon. H. L. Mo-(June, Judge. • (1) To constitute a gift, the thing given must be delivered by the donor and accepted by the donee. Safe Dep. Co. v. Huntington, 85 Hun 465; Camherling v. Graham, 79 Hun 247; Rex v. Hunt, N. Y. App. Div., 540; Mathews v. Hoogland, 48 N. J. Eq. 455; Taylor v. Henry, 48 Md. 550; Telford v. Patton, 144 Ill. 611; Williamson v. Johnson, 62 Vt. 378; Voegel v. Gash, 20 Mo.

— Eon. Walter A. Powell, Judge. (T) Plaintiff’s case being based on mere conjecture, the court erred in not sustaining defendant’s demurrer to the evidence. Sheldon v. Éailroad, 29 Barb. 272; Oglesby v. Railroad, 177 Mo. 295; Moore v. Railroad, 28 Mo. App. 622; Cothron v. Packing Co., 98 Mo. App. 843; Browning v. Railroad, 106 Mo. App. 729; Caudle v. Kirkbride; 121 Mo. App. 92; Hamilton v. Railroad, 128 Mo.

— Hon. H. L. Mc-Cwne, Judge. (1) The statement in the defendant’s letter that he was returning goods to the plaintiff for which he was entitled to and claimed a, credit on the account made the plaintiff’s claim a disputed, unliquidated one. Ostrander v. Scott, 161' Ill. 339; Coal Co. v. St.. Louis, 145 Mo. 651; Andrews v. Contracting Co., 100 Mo.

— Hon. H. L. Mo-Oune, Judge. (1) Where plaintiff is depending upon a single witness to establish the case and when such witness tells an irreconcilable story the court should treat it as if nothing substantial had been shown in the case. Oglesby v. Railroad, 177 Mo. 295; Spiro y. Transit Co., 102 Mo. App. 260 and cases there cited; Deane v. Transit Co., 192 Mo. 586; Payne y. Railroad, 136 Mo. 562; O’Keefe y. Railroad, 81 Mo.

— Hon. D. H. Cecil, Judge. A municipal corporation is liable for nuisances committed, permitted or maintained by it upon its own property, in. tbe same way and to tbe same extent as a private individual. 21 Am. and Eng. Ency. of Law (2 Ed.), p. 717; 20 Am. and Eng. Ency. of Law (2 Ed.), p. 1191, 1205; “Cyc.,” vol. 28, p. 1293; Torpey v. Independence, 24 Mo. App. 288; Booth v. Fulton, 85 Mo. App. 19; Whitfield v. Carrollton, 50 Mo. App. 102; Bul-master v. St. Joseph, 70 Mo.

— Hon. N. M. Bradley, Judge. (1) Plaintiff having obtained judgment in a substantial sum, against the defendant, was entitled to recover of and from the defendant, all costs necessarily incurred in the establishment of said cause of action. R. S. 1899, sec. 1547; Boothe v. Cowan, 5 Sneed (Tenn.) 354; Brattebo v. Tjernagel, 59 N. W. 278.

Original Proceedings. (1) There can only be one administration at a time on the same estate. The administration first taken out is valid and collaterally unassailable until it has been set aside by the court granting it or on appeal. All other subsequent administrations are void. In re Estate of Davidson, 100 Mo. App. 267; Post v. Oaulk, 3 Mo. 35; Wabash v. Sweet, 103 M'o. App. 280; Cobe v. Richetts, 111 Mo. App. 105.

— Hon. Samuel Davis, Judge. (1) The court erred in permitting the plaintiffs to proceed to trial without first returning to defendants the ore involved in the litigation. Shoe Mac. Co. v. Rambon, 210 Mo. 681; Hoehenthal v. Watson, 28 M'o. 360; White v. Yanhoutin, 57 Mo. 577; State ex rel. v. Dunn, 60 Mo. 64; Manley v. King, 40 Mo. App. 531; Clinton v. Stovall, 45 Mo. App. 642; R. S. 1899, sec. 4465.

— Hon, David E. Blair, Judge. (1) The trial court should have discharged the jury and continued on defendant’s affidavit of surprise and application for continuance. Fretwell v. Laffoon, 77 Mo. 28; Peers v. Davis, 29 Mo. 18á; Connoly v. Pehle, 105 Mo. App. 419; Albert v. Seiter, 30 Mo. App. 257; Bragg v. Moberly, 17 Mo. App. 211; 3 Am. and Eng. Cyc. of Laws, 813; Childs v. State, 10 Tex. 183; Branch v. Dnbree, 55 Ga. 21; O’Connor v. Duff, 30 Mo. 599.

— Eon. John T. Moore, Judge. (1) The general doctrine is that the contract of the guarantor,being independent of that of the principal he cannot he jointly sued in the same action with the principal. Prior v. Kiso, 81 Mo. 241; Bank v. Shine, 48 Mo. 463; Graham v. Ringo, 67 Mo. 324. (2) The note in suit was giyen in August, 1901, and not transferred to plaintiff until January, 1904, a year or more after maturity.

Appeal, from. Dent Circuit Court. — Eon. L. B. Wood-sideJudge. If June 9tb issue is included in tbe count, then more than a week — seven days — elapsed from May 31st issue to June 9th, and the continuity of the notice was broken. Notice on election day could serve no purpose. R. S. 1899, sec. 3029; State v. Kampman,. 75 Mo. App. 635; State v. Kaufman, 45 Mo. App. 656; State v. Dobbins, 1T6 Mo. App. 29; State v. Brown, 130 Mo.

— Eon. F. G. Johnston, Judge. (1) This proceeding having been commenced by indictment of a grand jury and that mode of procedure adopted, it was not competent to change the same to the other mode of an information by the prosecuting attorney. Laws of 1901, p. 138; State v. Harvey, 214 Mo. 403; State v. Gieseke, 209 Mo. 331. (2) “The burden is on the State to establish such facts as would arrest the running of the statute.” State v. Moore, 67 Mo..

— Eon. E. L. Bright, Judge. (1) Plaintiff was not entitled to recover under tbe pleading and evidence in this case. Tlie petition alleges one state of facts and the proof shows an entirely different state of facts. Behen v. Transit Co., 186 Mo. 439; Murphy v. Transit Co., 125 Mo. App. 274; Nellis, Street Surface Railroads, 484; Jacobson v. Transit Co., 106 Mo. App. 347; Yarnell y. Railroad, 113 Mo. 578.

— Eon. L. B. Wood-side, Judge. (1) “A bank which pays a forged check drawn upon it in the name of a depositor may, if 4t acts within a reasonable time, recover the amount thereof from the bank which took the check in course of business, and negligently paid the money upon the endorsement of the check by the payee named, without inquiry into its genuineness, or without requiring any identification of the person presenting such check for payment, or any showing that he was…