Volume 142 — Missouri Appeal Reports

— Hon. J. G. Sheppard, Judge. (1) The undisputed evidence is that plaintiff’s bull was killed on a public road crossing and within the corporate limits of the town of Harviell. There could be no recovery, therefore, without proof of negligence on part of the defendant. R. S. 1899, sec. 2867; Wallace v. Railroad, 74 Mo. 597; Webster v. Railroad, 57 Mo. App. 451; Lloyd v. Railroad, 49 Mo. 199; Grant v. Railroad, 56 Mo.

<p>1. APPELLATE PRACTICE: Defective Abstract: Printed Abstract Required on Appeal on Long Form. Where the printed abstract of appellant contains only the petition, answer, verdict and instructions, and makes no mention of a Judgment, bill of exceptions or motion for a new trial, only the record proper can be considered and the defects are not cured by the fact that a full typewritten transcript has been filed in the appellate court.</p> <p>2. -: Printed Abstract Required. Revised Statutes 1899, section 813, requires that a printed abstract of the record be filed with the clerk of the appellate court, and the rules of the appellate courts of this State also require that such an abstract be filed.</p> <p>3. -: Rules of Court: Not Affected by Agreement of Coun-> sel. It is not within the power of counsel by agreement either specified or implied to obviate the provisions of the rules of this court.</p>

— Hon. John T. Moore, Judge. (1) The motion to dismiss the cause of action should have been sustained as it does not affirmatively appear that the conversion, if any, was in Swan township, or in an adjoining township, or even in Taney county. Therefore the justice had no jurisdiction. Warden v. Railroad, 78 Mo. App. 664; Bank v. Doak, 75 Mo. App. 332; Biggs v. Railroad, 111 Mo. 168; Gideon v. Hughes, 21 Mo.

— Eon. J. G. Sheppard, Judge. (1) There Avas no evidence of any negligence on. part of the defendant, and even if there had been, plaintiff’s own negligence caused the injury. McGrath v. Transit Co., 197 Mo. 97; 1 Thompson on Negligence, sec. 1246, p. 1112; Gallagher v. Illuminating Co., 72 M'o. App. 576; Gannon v. Light Co., 145 Mo. 502; Oglesby v. Railroad, 177 Mo. 272; Fuchs v. St. Louis, 167 Mo. 620; Trigg y. Land & L. Co., 187 Mo. 227; Bennett v. Himmelberger, 117 Mo.

— Eon. J. G. Sheppard, Judge. (1) The filing of a statement, or the instrument sued on, as the basis of the action, before a justice of the peace, is necessary to give the justice jurisdiction. R. S. 1899, sec. 3852; Odie v. Clark, 2 Mo. 12; Peddicord v. Railroad, 85 Mo. 160; Sidway v. Land & Live Stock Co., 163 Mo. 3á2; Soné to use, v. Wallendorf, 187 Mo. 12.

— No». John T. Moore, Judge. (1) By instruction number one given for the State, the court tells the jury to convict the defendant if they find he sold liquor within one year next before the filing of the information, and ignores his defense altogether. This is error. The sale was admitted. The question for the jnry was whether the sale was made under a valid prescription, which was ,a complete bar to a conviction if so found. R. S. 1899, sec. 3047; State v. Bevans, 52 Mo.

— Hon. J. O. Sheppard, Judge. Any lien against the wages of Sanders which plaintiff acquired by the garnishment proceedings was vacated and annulled by the proceedings in bankruptcy against Sanders. 30 U. S. Statutes at Large, 1897, 1899, 565; In re Goldberg, 121 Fed. 578; In re Kenney, 97 Fed. 557; In re Reichmann, 91 Fed. 624; In re Higgins, 97 Fed. 775; Bear v. Chase, 99 Fed. 920; Klipstein v. Allen, 136 Fed. 385.

<p>1. CRIMINAL LAW: Dramshop Keeper: Selling Liquor on Sunday: Information. An information charging defendant, a dramshop keeper, with selling liquor on Sunday examined and held not subject to objections that it did not state facts sufficient to constitute any offense and that two separate and distinct offenses were charged in the same count.</p> <p>2. -: -: -: Rearragnment not Necessary After Motion to Quash is Overruled. Defendant, a dramshop keeper, was charged under an information with selling liquor on Sunday. He filed a motion to quash the information which was overruled. Held, it was not necessary that he be rearraigned after the motion to quash was overruled.</p>

- — Eon. John T. Moore, Judge. The statute authorizes appellate courts to require printed abstracts of the record in all cases, and a printed abstract of the record is required notwithstanding the appeal is taken on the long form and a full transcript is filed in the appellate court. E. S. 1899, sec. 874; McQueen v. Groff, 105 Mo. App. 165, 79 S. W, 734; Mink y. Chesney, 110 M'o. App. 334; Brand v. Cannon, 118 Mo. 595, 24 S. W. 434; Ely v. Coonts, 167 Mo. 371, 67 íá.

— Hon. F. G. Johnson, Judge* (1) If under their contract, plaintiff and Johnston were tenants in common of this wheat crop, then the possession of one was the possession of the other. Thompson y. Mawhinney, 17 Ala. 368; Putnam y. Wise, 37 Am. Dec. 309; Daniels v. Brown, 69 Am. Dec. 505; 4 Am. and Eng. Ency. of Law (1 Ed.), 996.

Blair, Judge. (1) The undisputed evidence showed that the horse came upon the track at a point where a cattle-guard and fence could not have been maintained with safety to the. trainmen in the discharge of their duties, and the demurrer should have been sustained. Edie v. Railroad, 133 Mo. App. 9; Gilpin v. Railroad, 77 S. W. 118, 197 Mo. 319; Bridges v. Railroad, 132 Mo. App. 576; Hurd v. Chappel, 91 Mo. App. 317; Grant v. Railroad, 56 Mo.

— Eon. Alfred, Page, Judge. (1) Municipal corporations are only liable for negligence of tbeir servants and agents in grading and changing of grades of its streets when same is dune by authority of an ordinance, and the passage of an ordinance can only be proved by the record. Stewart v. City of Clinton, 79 Mo. 610; Sheehan v. Gleeson, 46 Mo. 100; 1 Dillon, Munic. Corp., 310; 1 Greenleaf, Ev. (14 Ed.), 86.

— Eon. John T. Moore, Judge. (1) The presumption of law is against vice and in favor of innocence, and good' morals, and on this ground tbe law presumes marriage where, as in this case, the evidence shows ceremony, acknowledgment, cohabitation, the birth of children and reputation of marriage. Cargile v. Wood, 63 Mo. 501; Adair y. Mette, 156 Mo. 512; Plattner v. Plattner, 116 Mo. App. 405; Imboden v. Trust Co., Ill Mo.

— Eon. J. G. Sheppard, Judge. (1) The court erred in holding that the poll tax in question was payable either in labor or money. Under the law and the order of the county court, it was payable only in money. Session Acts 1901, 235. (2) ■ The court erred in admitting testimony on part of the defendant that he had not been warned out to work the roads; no warning being necessary under the law existing at the time of the levy of the tax.

<p>LANDLORD AND TENANT: Destruction of Property: Duty to Pay Rent. The law of this State has long been established that where premises are rented for a term of years, the lessee agreeing to pay rent during the term, and the lessor does not covenant to rebuild, repair or reconstruct the leasehold premises in case of injury or destruction, the lessee will not be exempt from payment of rent. The tenant must continue to pay rent for the whole term, although the leasehold may have been injured or destroyed in such a way that he can get no beneficial use out of it.</p>

— Hon. F. O. Johnson, Judge. (1) The justice had no jurisdiction to grant an appeal until the appellant should apply to him for an appeal and do so in the time, place and manner prescribed by law. State ex rel. v. Muench, 217 Mo. 124; Barhydt & Co. y. Alexander & Co., 59 Mo. App. 188; Lane v. Morse, 6 How. Pr. 894; Cook y. Staata, 18 Barb. 407; State ex rel. y. Woodson, 128 Mo. 497; State ex rel. y. Broaddus, 210 Mo. 12.

— Son. Argus Cox, Judge. (1) The court erred in refusing plaintiff peremptory instruction, for the reason that the testimony of the officials of the plaintiff bank that it had no notice of any infirmity of title, or of fraud in the procurement of the notes sued on, but purchased them for value, before maturity, in good faith, was not rebutted by any evidence on the part of defendant fixing such notice on the part of appellant bank.

— Hon. David E. Blair, Judge. (1) If a city could lawfully exact of bakery wagons a license fee, it could properly, as a means of enforcing an ordinance tberefor, make it an offense for an employee of tbe owner of such wagons to use it within the city when no license fee had been paid therefor. City of Troy v. Harris, 102 Mo. App. 60; Kansas City y. Smith, 93 Mo. App. 217.

— Eon. James T. Neville, Judge. Appellant was entitled to have the issue in this case passed upon by the jury. The court had no right, to dictate to the jury what their verdict should be. Gregory v. Chambers, 78 Mo. 298; Schroeder v. Railroad, 108 Mo. 322; Wolf v. Campbell, 110 Mo. 114; Lockwood v. Ins. Co., 47 Mo. 50.

— Eon. J. G. Sheppard, Judge. (1) The petition does not state a cause of action. It is not sufficient to allege that tbe fire occurred, and that tbe defendants’ men were negligent. Tbe casual connection between tbe negligence charged and the injury suffered must be directly alleged and proved. Rubber Co. v. Water Co., 181 Mo. 678; Rushenberg v. Railroad, 109 Mo. 112. (2) Tbe motion to make the petition more definite and certain should have been sustained.

— Hon. Argus Cox, Judge. (1) The demurrer to the information should have been sustained because there is not a sufficient designation of the particular law alleged to have been adopted. State v. Nunley, 185 Mo. 109; State v. Hillman, 128 Mo. App. 174; State v. Hall, 130 Mo. App. 174; State v. Fairlamb, 121 Mo. 154; State v. Campbell, 210 Mb. 226. (2) The demurrer to the information should have been sustained because it charges several offenses in the same count.

— Hon. Harry Glymer, Special Judge. (1) This action on the taxbill was properly brought against the defendant Young. He was, in fact, the sole owner of the land against which the lien is sought to be enforced. Hernán y, McNamara, 77 Mo. App. 1. (2) However, a valid judgment- on a special taxbill may be rendered without bringing in all the owners of the property as defendants. Granite Co. v. Taylor, 64 Mo. App. 37; Neenan v. St. Joseph, 126 Mo. 89.

<p>Original Proceedings by Mandamus.</p>

— Hon. Thomas J. Beehorn, Judge. (T) There is an important distinction between a perfected contract and an option contract. Hollman y. Conlan, 143 Mo. 369. Parties cannot lie by and speculate on their own contracts. Brown’s Ex. v. M'assy, 138 Mo. 519; Durrett y. Hook, 8 Mo. 374; Waterman v Banks, 144 U. S. 394; Armour y. Oason, 95 M'o. App. 426. (2) If the contract does not fix the time for performance the law implies a reasonable time. Blake Mfg. Co. y. Gaeger, 81 Mo.

— Hon. Alex. H. Waller, Judge. (1) The real parents having carried out their part of the agreement to adopt and the child having lived up to it, equity puts her on equality with regularly adopted child, so far as rights of inheritance are concerned. Steele v. Steele, 16!

<p>Appeal from Bucbanan Circuit Court. — Hon. O. A. Mosnw/n, Judge.</p>

<p>Appeal from Buchanan Circuit Court. — Eon. C. A. Mosman, Judge.</p>

<p>1. ARBITRATION AND AWARD: Notice: Action at Law. An award made without notice to the parties is void; and that defense can be made to it in an action at law upon it, without first having it set aside on motion, or by bill in equity. [Finley v. Finley, 11 Mo. 624, considered and held not applicable.]</p> <p>2. -: Umpire or Third Arbitrator: Notice. And if the submission provides for a third man in case the two appointed cannot agree, and a hearing is had before the two, both parties appearing, and the two do not agree but call in a third, it is necessary that a new notice be given that the parties may have an opportunity to be heard before the third party.</p> <p>3. -: -: Notice Implied: Waiver. Though the articles of submission do not provide for notice, it will be implied unless the articles show it was waived.</p> <p>4. -: -: Unanimous Award. The fact that the award finally rendered was unanimous, will not render it valid.</p>

Circuit Court. — Hon. David H. Cecil, Judge. (1) Defendant had a right to place the pole and guywire on the streets, and they were therefore not nuisanees per se; and defendant cannot be held liable for so placing and maintaining the pole and guy wire unless the city itself would have been liable for so doing. Atchison v. St. Joseph, 133 Mo. App. 563; Siebert v. Railroad, 188 Mo. 657; Building Association v. Telephone Co., 88 Mo. 266.

<p>1. PERSONAL INJURY: Res Ipsa Loquitur: Pleading. Where specific negligence is alleged, no presumption arises in plaintiff’s favor under the rule of res ipsa loquitur.</p> <p>2. -: -: Evidence: Presumption. Where proof alone of the act which causes the injury, shows negligence, there is no necessity for the aid of a presumption under the rule of res ipsa loquitur.</p> <p>3. THEORY AT TRIAL: Appeal. Where an action for damages is brought under section 2864, Revised Statutes 1899, but the defendant tries the case on the theory that the damages are measured by section 2866, and so states to the court, and the trial court in consequence gives an instruction for plaintiff on that theory, defendant cannot, on appeal, complain of the instruction, notwithstanding he excepted to giving it.</p> <p>4. INSTRUCTION: Error. Notwithstanding there is an erroneous instruction peremptorily informing the jury that they cannot find for plaintiff in less than a certain amount, yet, if they find a much larger amount, it was not harmful and is not reversible error.</p>

— Eon. Walter A. Powell, Judge. (1) The property not having been sold oh the terms set forth in plaintiff’s petition, he made no case. Cole y. Armour,' 154 Mo. 350; Warsaw v. McElroy, 33 Mo. App. 553; Reiger v. Biggs, 29 Mo. App. 421; Blackwell y. Adams, 28 Mo. App. 61; Lowry y. Mining Co., 65 Mo. App. 266. (2) Plaintiff was not the procuring cause of the trade that was made, and the court should have given the declaration of law that the plaintiff could not recover.

— Hon. James H. Slower, Judge. (1) The court erred in dismissing plaintiff’s petition and rendering final judgment for defendant. Only the equitable issue of mutual mistake in the execution of the release was submitted to the court for determination. It was the plaintiff’s right to have a jury trial of the remaining issues or of such other issues as might have been made -by amended or additional pleadings.

— Hon. W. 0. Thomas, Judge. It having been established that plaintiff’s husband was injured by reason of the fact that he negligently continued to drive on defendant’s track after, by the exercise of ordinary care, he could have seen said car approaching him, and that the motorman could have seen him thus negligently continuing to drive towards said car on said track in time, by the exercise of ordinary care, to have stopped said car and prevented injury to plaintiff’s…

— Hon. W. 0. Thomas, Judge. (1) Where the owner of a building, which is threatened by .an excavation about to be made on an adjoining lot it is his duty to protect his building by proper supports, and upon his refusal so to do, the excavator may do so and collect the cost from the owner of the building.

— Hon. James E. Goodrich, Judge. (1) The defendant was not an insurer of the safety of its employees; nor. was it its duty to furnish absolutely safe appliances.

<p>1. INSURANCE: Life: Oral Contract: Reinsurance: Effect on Insured of Contract Between Companies. Plaintiff’s mother carried a life insurance policy for $1,000 in the Union Life Insurance Company. Plaintiff was the beneficiary in said policy. The premiums were $6.27 payable monthly. In July, 1904, plaintiff was notified that said company had sold out its business to defendant. The agent who had formerly collected the premiums for the old company continued to collect the same, and represented that he collected the same for the new company. Plaintiff’s mother died July 3, 1905. The defendant then claimed that it held an “impairment lien” against said policy, which would reduce its liability thereunder to $269.11. There was evidence tending to show that the defendant had agreed to carry the policy on the same terms as had the old company, and that the plaintiff had never consented to be bound by any agreement between the two companies. Under the evidence plaintiff was not bound, as a matter of law, by the terms of the contract between the two companies, but was entitled to go to the jury on the issue that she paid her money to defendant under the terms of an oral contract, and that issue was properly submitted in plaintiff’s instructions.</p> <p>2. -: Insurance: Evidence: Statute of Frauds. Neither a contract of insurance, nor a contract of reinsurance need be written.</p> <p>3. -: Insurance: Authority of Agent: Estoppel. The defendant having accepted and retained the benefits of the contract made by one acting as its agent, it is, under the evidence in this case, estopped to deny his authority to make such con: tract.</p> <p>4. -: Pleadings: Insufficient Petition: Waiver by Answer: Express Aider. The question of whether or not plaintiff’s petition stated a cause of action was waived by defendant’s answer. The common law rule of pleading known as “express aider” still obtains in this State, and under that rule the omission to state a material fact in the petition is cured if the defendant puts the matter in issue by his answer.</p> <p>5. PLEADINGS: Construction: Strict or Liberal, After Verdict. The rule that pleadings are most strongly construed against the'pleader has no application after answer filed, and verdict made, the rule then being that the petition is to be liberally construed, and every reasonable inference indulged in favor of the pleader.</p>

— Hon. Louis Hoffman, Judge. (1) The direction to sell contained in the will being absolute, the land was converted into personalty on the day of the testator’s death. Compton v. McMahan, 19 Mo. App. 498; Craig v. Leslie, 3 Wheat. (U. S.) 577; Peter v. Beverly, 10 Pet. (IT. S.) 532; Rinehart v. Harrison, 1 Bald.

— Eon. E. E. Porterfield, Judge. (1) There was no proof that said fall was caused by the jerk or sudden starting of said cars or by any other alleged acts of negligence charged in the petition. There is no room for the application of the doctrine of res ipsa loquitur to this case.

<p>Appeal from Jackson Circuit Court. — Eon. W. A. Powell., Judge.</p>

— Hon. Win. H. Martin, Judge. (1) Tlie amount of the verdict does not indicate passion, prejudice or mistake of the jury, nor is the amount so inadequate as to shock a common sense of justice. Stumbo y. Zinc Co., 100 M‘o. App. 635; Leahy v. Davis, 121 Mo. 227; Parsons y. Railroad, 94 Mo. 296; Rains v. Railway, 71 Mo. 164; Porter v. Railway, 71 Mo. 66; Geismann v. Elec.

— Hon. W. B. Teasdale, Judge. (1) Where the petition pleads a specific ground of negligence, followed by a general charge of negligence, and the latter is followed by an additional specific charge of negligence, the plaintiff must recover, if at all, on one or the other of the specific charges, and cannot recover on the genéral charge under such circumstances.

— Hon. Hermann Bruniback, Judge. (1) The failure of the award returned to state the sound value of the property damaged is immaterial to any interest or question involved; there being no disagreement as to sound value. Cochran v. Bartle, 91 Mo. 636; Reeves v. McGlochlin, 65 Mo. App. 537; Tucker v. Allen, 47 Mo. 488; Iron Works v. Ice & C. Co., 96 Mo. App. 563; Allen v. Hickman, 156 Mo. 49.

— Eon. W. A. Powell, Judge. Evidence as to the value of the plaintiff’s stock of merchandise was competent on the question of the measure of damages. Baker v. Robertson, 138 Mo. App. 163,-119 S. W. 987; Thompson v. Newell, 118 Mo. App. 405; Miles v. Withers, 76 Mo. App. 87; Courtney v. Boswell, 65 Mo. 196; Sigafus v. Porter, 179 U. S. 116, 45 L. Ed. 113; Rockefeller v. Merritt, 76 Fed. 909, 40 U. S. App. 666; High v. Berret, 148 Pa.

— Hon. A. H. Waller, Judge. (1) When the mayor and all the councilmen meet and act as a body, they may, at such meeting transact any business Avithin the poAver conferred by law, notwithstanding the meeting Avas not called as provided by charter and that it was not a regular or adjourned meeting. The presence of all who are entitled to participate therein renders notice entirely immaterial.

— Eon. L. J. Eastin, Judge. (1) A writ of mandamus will not lie to control judicial or discretionary acts, nor to direct a court to enter any particular judgment. It only lies to compel a judge or person vested with a discretion to act, or compel the performance of a mere ministerial duty. State ex rel. v. Fort, 180 Mo. 108; State ex rel. v. MeGrath, 91 Mo. 386; State ex rel. y. Gregory, 83 Mo. 136; State ex rel. v. Francis, 95 Mo. 44.

— Eon. L. J. Eastin, Judge. It is familiar law that one cannot appeal from a judgment to which he has given his consent, and consent is implied, if exception is not taken at the time in cases where the objection must be embodied in an exception. Critchfield v. Linville, 140 Mb. 191. A demurrer to evidence has not been made a matter of record for many generations. Suydam v. Williamson, 20 How. 441.

— Hon. John P. Butler, Judge. Where plaintiff’s petition contains averments unnecessary to make his case, he need not prove all the facts so averred. Pattison’s Mo. Code Plead., sec. 74; Gann v. Railroad, 72 Mo. App. 34; Radcliffe v. Railroad, ' 90 Mo. 127; Campbell v. Railroad, 121 Mo. 340; Walker v. Railroad, 68 Mo. App. 465. (1) Plaintiff must recover on the cause of action alleged in his petition.

<p>Appeal from Jackson Circuit Court. — Hon. John G. Park, Judge.</p>

<p>1. TRESPASS: Damages: Duty of Injured Person to Mitigate or Prevent. A person against whom a trespass is committed must use ordinary care to prevent or lessen damages to himself.' A failure so to do shows a want of good faith and fair dealing.</p> <p>2. -: -: Duty to Extinguish Fire. A farmer who sees a fire which he could easily extinguish is guilty of contributory negligence if he permits it to burn, relying on the wind not changing, when the conditions indicated a likelihood of the fire spreading.</p> <p>3. PLEADING: Contributory Negligence. In the absence of a plea of contributory negligence, defendant cannot ask a peremptory instruction on that issue unless it is established by plaintiff’s evidence.</p> <p>4. NEGLIGENCE: Railroads: Obstacles on Crossings: Frightening Animals. A railroad company needlessly permitting a telephone wire to lie on a farm crossing for a long time is liable to the owner of ah colt which is frightened by the vfive, runs away and is killed while so running.</p> <p>5. -: -: -: Contributory Negligence. A ' farmer who knows a telephone wire is lying on a farm crossing, on a railroad company’s right of way, is not negligent in failing to remove it, nor in driving animals over the crossing unless the danger is glaring and imminent.</p>

<p>Appeal from Jackson Circuit Court. — Eon. Henry L. MeCune, Judge.</p>

— Hon. L: J. Eas tin, J udge. Under the pleadings and evidence defendant’s demurrer should have been sustained. Burke v. Railway, 29 Mo. App. 370; Schneider v. Railway,.. 29 Mo. App. 68; Collier v. Railway, 48 Mo. App. 398; Johnson v. Railroad, 111 Mo. App. 378; Gray v. Schrieber, 58 Mo. App. 173.

— Hon. E. E. Porterfield, Judge. (1) The consent of the owners of the majority of front feet of property upon the line of the railroad located on public streets was necessary to a franchise to construct, maintain and operate such railway. Statutory Charter of 1875; see Laws of Missouri, 1875, p. 209, sec. 8; Kansas City Charter of 1888, sec. 2, art. 12, p. 233; see Charter and Revised Ordinances of 1898; Kansas City Charter of 1908, sec. 4, art. 16, p. 219.

— Hon. A. D. Burnes, Judge. Every presumption is to be indulged in favor of the order granting a new trial, and where the verdict is set aside, as in this case, for the reason that in the opinion of the court the verdict is the result of passion, prejudice or misbehavior, the judgment should always be affirmed, if there is substantial evidence in the record tending to establish a theory of the case contrary to the verdict. Dickman v. Hespos, 141' Mo.

— Hon. George W. Wanamaker, Judge. (1) A parent has a right to decide what are necessaries for his child and a stranger cannot hold him responsible therefor if the parent has made provision for his children. The defendant denied that he bought or authorized the goods to be bought by his children and testified that he furnished them with necessaries. Hence it was error for the court to refuse defendant’s instructions numbered 1 and 2. Am. and Eng. Ency.

— Eon. John P. Butler, Judge. (1) The presumption of law is that every action of the trial court was proper, and the burden rests on the appellant to show by the record that prejudicial error was committed. Bauer v. Cabanne, 11 Mo. App. 14; Johnson v. Long, 72 Mo. 210; Holland v. Cunliff, 96 Mo. App. 67; State v. Hunter, 71 M'o. 435; Rhodes v. Rhodes, 96 Mo. App. 327; McKinney v. Northcott, 141 Mo. 146.

— Eon. John G-. Parle, Judge. (1) The peremptory instruction asked by defendant should have been given. Defendant’s employee' operating the car which injured plaintiff was acting outside the scope of his authority and could not create a liability against the defendant.. Bequette v. Rail-, road, 86 Mo. App. 601; Sherman v. Railroad, 72 Mo. 62; Evans v. Automobile Co., 121 Mo.

— Hon. Hermann Brumback, Judge. (1) Plaintiff was a licensee and this defendant owed him no duty until it discovered or should have discovered his presence. Kelly v. Benas, 217 Mo. 1; Wencker v. Railroad, 169 Mo. 592; Barney v. Railroad, 126 Mo. 372; Straub v. Soderer, 53 Mo. 38; Refining Co. v. Mobley (Ky.), 121 S. W. 657. (2) No act of this defendant was a proximate cause, a. Generally.

Original Proceedings in Mandamus. (1) The only authority and power which cities of the third class have with reference to the granting of dramshop licenses is “to levy and collect a license tax on liquor sellers.” When the license tax was paid by relator, he was entitled to the grant of a- license. Session Acts of Missouri 1907, p. 98; secs. 5857, 5835, R. S. 1899; Joplin v. Jacobs, 119 Mo. App. 134.

<p>1. PRACTICE: Compulsory Reference. The statute providing for compulsory reference in certain law cases has been declared constitutional by our Supreme Court, but the right to trial by jury is a sacred one and legislation attempting to give that right into the hands of a referee should he strictly construed.</p> <p>2. -: -: Right to Trial by Jury. In a suit for $250 damages, plaintiff claimed that he had purchased 500 pairs of shoes of defendant, and was to have them at what they cost the defendant; hut that defendant deceived plaintiff as to the cost mark so that he paid defendant fifty cents more per pair for the shoes than they had cost. Defendant claimed that, under the sale to plaintiff, he was to receive fifty cents above cost for each pair of shoes. Held, that the issues are simple and that the defendant was entitled to trial by jury and the trial court erred in referring the case over the objections of the defendant.</p> <p>3. -: -: Waiver. Where a cause is improperly referred, over the objections and exceptions of defendant, and the referee 'finds the issues for the defendant, which finding the defendant is willing to accept, hut the court refuses to approve ■of the referee’s finding and finds for the plaintiff, the defendant still has a right under his original objection to the reference to insist upon a trial by jury.</p>

— Hon. L. B. Wood-side, Judge. (1) Payment of taxes made by defendant and those under whom he claims title without the request of plaintiffs or promise to reimburse them are voluntary and cannot be recovered back. Napton v. Seaton, 71 Mo. 369; Cooley on Taxation, 467; Rowe v. C. R. L. & Co., 99 Mo. App. 164; Petring v. C. R. L. & Co., Ill Mo. App. 373; Brown v. Current R. L. & C. Co., 100 Mo. App. 75; Burkham ' v. Manewal, 195 Mo. 500; Carter v. Phillips, 49 Mo.

— Hon. G-. A. Watson, Special Judge. (1) The statement does not state facts sufficient to constitute a cause of action. Zeidler v. Walker, 41 Mo. App. 121; Bailey v. Chapman, 41 Mo. 538; Sallee v. McMurray, 113 Mo. App. 265. (2) Plaintiff cannot sue on one cause of action and recover on another. Cole v. Armour, 154 Mo. 350; Wade v. Nelson, 119 Mo. App. 278; Laclede Const. Co. v. Iron Works, 169 Mo. 137; Koons v. Car Co., 203 Mo. 254; Hayden v. Grillo, 26 Mo.

<p>APPELLATE PRACTICE: Criminal Law: Bill of Exceptions. In a criminal case where no bill of exceptions has been filed, matters of exception are not before the appellate court for review.</p>

— Eon. W. N. Evans, Judge. (1) It is the well-settled law of this State that in this class of cases it is necessary for the information to allege and set out that the place where the alleged offense occurred was then and there set apart for religious worship. State v. Kindrick, 21 Mo. App. 507; State v. Stegall, 65 Mo. App. 243; State y. Fugitt, 66 Mo. App. 625; State y. Ellis, 71 Mo. App. 269; State y. Schieneman, 64 Mo. 386.

— Hon. L. B. Woodside, Judge. (1) If the, instructions given hv the court are nst broad enough to cover the issues as presented by the evidence, defendant should call the court’s attention to that fact before the case is submitted to the jury, and should ask further instructions. State v. Price, 186 Mo. 144.

— How. W. N. Evans, Judge. (1) The only prerequisite to a valid meeting of a hoard of directors is that each member should have notice of the time, place and purpose of the meeting, and that a majority should attend. Waters v. School District No. 4, 59 Mo. App. 580; Sec. 9761, R. S. 1899. (2) An order of a school board entered of record to employ a teacher is sufficient to enable him to collect his Avages, although no Avritten contract be entered into betAveen the parties.

— Hon. James T. Neville, Judge. (1) Partition cannot be made in contravention of a will. Ex-Parte Cubbage v. Franklin, 62 Mo. 364; Stevens v. Larwell, 110 Mo. App. 151; Stewart v. Jones, 318 S. W. 1. (2) The description of the real estate to be sold in the notice of sale published in the newspaper must conform to the petition and judgment. Heirs of Burnham v. Hiatt, 143 Mo. 414; Stoffel v. Reiners, 3 Mo. App. 33.

— Eon. L. B. Wood-side, Judge. (1) The court erred in allowing the witness, R. E. Wright, to testify as an expert to the time in which a passenger train could be stopped running at a specified rate of speed, without any hypothetical question having been submitted to him involving the facts in this particular case to which, of course, the inquiry was intended to apply. Turner v. Harr, 114 Mo. 335; Senn v. Railway, 108 Mo. 142; Mammerberg v. Railway, 62 Mo. App. 563.

— Eon. James ■ T. Neville, Judge. (1) The burden of proof is always determined - from the pleadings alone and never shifts. The burden of evidence often shifts. Feurt, Ex., v. Ambrose, 84 Mo. App. 360; McCartney v. Ins. Co., 45 Mo. App. 373; Bunker v. Hibler, 49 Mo. App. 542; Livery Co. v. McKelvey, 55 Mo. App. 24Ó; Newell v. Iron Co., 5 Mo. App. 260; St. Louis v. Arnot, 94 Mo. 275.

— Hon. W. N. Evans, Judge. (1) One who aids or abets in the commission of a trespass, or participates therein or in the fruits thereof is equally liable with the principal trespasser, and is liable for the whole damage done. And the same is true of one who encourages the commission of a trespass. Canifax v. Chapman, 7 Mo. 175; Dreyer v. Ming, 23 Mo. 434; Holliday v. Jackson, 21 Mo. App. 666; Walters v. Hamilton, 75 Mo.

— Eon. L. B. Wood-side, Judge. (1) The ordinance is valid. Revised Statutes 1899, sec. 5959; R. S. 1909, sec. 9374. (2) The court erred in rendering judgment against defendant Liesmann in overruling defendant’s motion for a new trial and in not sustaining same. Evans v. Holman, 202 M'o. 284; MeVey v. Baker, 92 Mo. App. 498; Evans v. Holman, 114 Mo. App. 449.

— Hon. L. B. Woodside, Judge. (1) The plaintiff has full capacity to maintain this action although she is the wife of the defendant, John P. Montgomery. Section 4835, R. S. 1899, enfranchises a married woman and makes her a femme sole with full power to contract with her husband and maintain any action at law against him. Rice, Stix & Co. v. Sally, 176 Mo. 107 ;• Beagles v. Beagles, 95 Mo. App.' 338. (2) The petition states a cause of action.

Writ of Error to Laclede Circuit Court; — Hon. L. B. Woodside, Judge. (1) The court erred in overruling defendant’s objection to any evidence under the petition. Conversion, which is the nature of the action, cannot be maintained. Frazier v. Railroad, 104 Mo. App. 360; Parker v. Rhodes, 79 Mo. 91; Jones v. Furniture Co., 77 M'o. App. 474.

— Hon, L. B. Wood-side, Judge. (1) The answer should have set up the contract requirements and specified wherein the goods delivered fell short. Hollfield v. Black, 20 M'o. App. 328; Brewington v. Mesker, 51 Mo. App. 348; Lumber Co. v. Lumber Co., 51 Mo. App. 555. (2) A specific pleading is necessary to raise the question of variance between the sample shown and goods delivered. Weil v. Electric Co., 39 Mise. (N. Y.) 527.

— Hon. W. N. Evans, Judge. (1) The omission of the words “then and there” in the conclusion of the indictment and in the clause charging the age of the vendee, the minor, is fatal to the validity of the indictment. Nothing material in the indictment will be taken by intendment. State v. Patterson, 159 Mo. 101; State v. Meyers, 99 Mo. 107; State v. Minor, 193 Mo. 597. (2) There is nothing to show that the prosecuting attorney of Howell county signed the said indictment.

— Hon. V. 0. Coltrcme, Special Judge. The amendment was made before trial. Tbe section of the statute containing tbe limitation “when tbe amendment does not change substantially tbe claim or defense” applies only to a case where tbe amendment is offered after tbe evidence is introduced. Tbe amendment adding tbe wife of plaintiff as a party to tbe suit and alleging that tbe property belonged to her is permissible, under tbe statute and authorities.

<p>1. CRIMINAL LAW: Illegal Cohabitation: Evidence. Ia a criminal case where defendants are charged with violating Section 2175 of the Revised Statutes of 1899, by lewdly, etc., cohabiting with each other when one of them was married, evidence examined and held sufficient to show that the man had a living wife at the time of the alleged offense.</p> <p>2. INSTRUCTION: Circumstantial Evidence: Criminal Law. An instruction in a criminal case covering circumstantial evidence and the requisites thereof in the proof of a crime by circumstantial evidence examined and approved.</p>

— Hon. James T. Neville, Judge. (1) The respondent had no contract for the purchase- of the lot; the individual members of the board had no power to contract. Johnson v. School Dist., 67 Mo. 319; Kane v. School Dist., 48 Mo. App. 408; State v. Lawrence, 178 Mo. 350. (2) The contract relied on by respondent was not supported by a consideration and was void. Haseltine v. Ausherman, 87 Mo. 410; Klausman v. Brewing Co., 32 Mo>. App. 357; Ward v. Hartley, 178 Mo. 135.

— Hon. Alfred Page, Judge. When plaintiff’s own evidence demonstrates that the alleged fact on which he predicates his right to recover cannot exist, it cannot be said that the testimony of one of the witnesses that such fact does exist is any substantial evidence thereof. DeMaet v. Moving Co., 121 Mo. App. 92; Phippin v. Railroad, T96 Mo. 343; Champagne v. Harney, T89 Mo. 726; Stafford v. Adams, TT3 Mo.

— Eon. James L. Fort, Judge. (1) The court erred in refusing defendant’s instruction in the nature of a demurrer to the evidence, because the plaintiff failed entirely in proving the cause of action alleged in his petition. Ranning v. Railroad, 157 Mo. 477; State ex rel. v. O’Neil, 78 Mo. App. 20; Priest v. Way, 87 Mo. 16.

— Hon. Charles D. Stewartj Judge. (1) The court erred in overruling defendant’s motion for judgment on the pleadings. The petition avers the plaintiff gave notice — the reply admits he did not give it according to the terms of the policy and states no facts that are an excuse for not doing it in law. The one stated to he an excuse in law would have to be provided for in the contract.

Louis City Circuit Court. — Eon. William M. Kinsey, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence for the following reasons: (a) Because plaintiff’s own evidence showed that her own negligence directly contributed with the negligence of the defendant’s chauffeur in causing her to be injured, (b) Because there was no evidence, offered which showed that the chauffeur was acting in the line of his duty as the servant of the defendant.

Habeas Corpus. (1) Where the facts stated in the return are denied, the testimony of respondent comes first in the order of proof, but the petitioners have the right to open and close the argument. 9 Encyc. PI. and Pr., 1052; secs. 3572 and 3574, R. S. 1899; In re Durbin, 102 Mo. 100; In re Moyer, 35 Oolo. 159; Weir v. Marley, 99 Mo. 484; 15 Encyc. PI. and Pr., 182; Church on Habeas Corpus (2 Ed.), sec. 164, p. 246.

— Hon. Jas. D. Barnett, Judge. (1) The allegations of the petition are insufficient to constitute a cause of action against the master for an injury caused by the negligence of a fellow servant. 26 Cyc., 1393, and authorities cited, note 79; Moss v. Railroad, 49 Mo. 167; Tucker v. Telephone Co., 132 Mo. App. 418; 1 Labatt on Master and Servant, sec. 179, p. 395; Railroad v. Hetzer, 135 Fed. 272.

Louis City Circuit Court — No». Bolt. M. Foster, Judge. (1) Plaintiff had the right to maintain this action, since default had occurred in some of the payments upon the note, and since under the terms of the chattel mortgage upon such default, all of the indebtedness be- . came due and payable at the election of the mortgagee and the mortgagee so elected, and since the chattel mortgage specifically provided that the mortgagee upon such default and election might at once take…

Louis City Circuit Court. — Eon. Matt G-. Reynolds, Judge. (1) Plaintiffs’ action cannot be maintained. The money which was received by defendant was not ex aequo et bono the money of the plaintiffs and was not received at the time for plaintiffs’ use. Campbell v. Wilson, 13 D. C. 497; Monday v. Siler, 47 N. C. 389.

— Hon. James D. Barnett, Judge. (1) The demurrer to the evidence should have been sustained, (a) If it should be conceded that plaintiff sustained the burden of proof to the effect that the statutory crossing signals were not given as the train in question approached the crossing in question, still plaintiff would not be entitled to recover if it appears that he could have either seen or heard the train by carefully looking and listening as he approached and went over the…

Louis’ City Circuit Court. — Hon. Daniel G-. Taylor, Judge. (1) The demurrer to the second amended and supplemental answer and crossbill of the defendant Gbio was well taken. He claiméd tbe same thing in two capacities; as a trustee, and as a tenant in common. Tbe two titles to tbe single cause of action are inconsistent and contradictory; tbe proof of one disproves tbe other. Yates v. Kimmel, 5 Mo. 87; Mertens v. Lowenberg, 69 Mo. 208.

Louis City Circuit Court. — Hon. Chas. C. Allen, Judge. (T) Record liens on lands are entitled to their full force and effect. Mechanics, as well as others, must be held to and public record notice of liens given to secure loans when duly made and to the same extent as are others. “The law will not relieve mechanics of the consequences of their own negligence. They are held to due diligence. Bridwell v. Clark, 39 Mo. 173; Darlington v. Harris, 107 Mo.

<p>MECHANICS’ LIENS: May v. Mode, Ante, Followed. The facts of this ease being identical with the facts in May v. Mode, ante, the decision is that case is followed herein.</p>

Louis City Circuit Court. — Hon. Geo. II. Shields, Judge. (1) The demurrer to the evidence should have been sustained, (a) Because plaintiff, before getting upon the ties, saw how they Avere arranged, and kneAv, he said, that they were improperly loaded. The danger of the ties falling Avas as obvious to plaintiff as to defendant’s foreman, therefore by getting on them without complaint plaintiff assumed the danger and risk of their falling.

Louis City Circuit Court. — Hon, Geo, H. Shields, Judge. (1) An appeal from the judgment of a justice of the peace by tbe defendant does not vacate tbe judgment, but suspends its effect for tbe time being. The dismissal of bis appeal by tbe defendant reinstates tbe judgment of tbe justice.

Louis City Circuit Court. — Eon. Daniel G. Taylor, Judge. (1) There is no evidence in the record that the motorman could, by the exercise of ordinary care, have avoided the collision after the danger became apparent. Zurflnh v. Railroad, 46 Mo. App. 642; Roenfeldt v. Railroad, 180 Mo. 554; Reno v. Railroad, 180 Mo. 4.69; Engleking y. Railroad, 187 Mo. 165; Theobald v. Railroad, 191 Mo. 395.

Louis City Circuit Court. — Eon. Daniel G. Taylor, Judge. (1) Plaintiff’s second instruction is erroneous because it authorizes a verdict for the violation of the vigilant watch ordinance when no such charge was contained in that count of the petition on which the case was submitted to the jury. Bragg v. Railroad, 192 M'o. 350; Bailey v. Kansas City, 189 Mo. 514; Givens v. Van Studdiford, 86 Mo. 159; State v. Oddle, 42 Mo. 214; Mooney v. Kennett, 19 Mo. 555.

<p>Appeal from St. Louis City Circuit Court. — Hon. Matt. Q. Reynolds, Judge.</p>

Lonis City Circuit Court. — Hon. Moses N. Sale, Judge. The “abstract of record” of appellants is so imperfect and lacking in essentials that the matters presented in their brief are not properly before the court for review.

Louis City Circuit Court. — Eon. Geo. E. Shields, Judge. (1) The first exception is not well taken. There was no error in overruling the objection to the admission in evidence of section 1871 of the municipal ordinances, providing a penalty for the violation of section 1870, on the ground that section 1871 was not pleaded, section 1870 having been admitted without objection.