Volume 143 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. Daniel Q. Taylor, Judge. (1) The second declaration of law for defendant is erroneous. Reliance upon a mechanic’s lien is not precluded by the fact that the materialman looks to some extent to the contractor, nor is the materialman deprived of his lien because he did not know the location of the building at the time the sale was made. Ridge v. Mercantile & T. Co., 56 Mo. App. 158; Lumber Co. v. Hoos, 67 Mo. App. 274; Bruce v. Berg, 8 Mo.

Louis City Circuit Court. — Eon. Chas. Claflin Allen, Judge. (1) A writ of scire facias to revive a justice’s judgment may be applied for at any time within ten years from the date of the rendition of the judgment of a justice of the peace. Stewart v. Justices, 47 Fed. Rep. 485; Sublette v. Railway, 96 Mo. App. 122; Walsb v. Bosse, 16 Mo. App. 231; George v. Middough, 62 Mo. 551; Long v. Thormond, 83 Mo.

Louis City Circuit Court. — Eon. Virgil Rule, Judge. (1) As there was no conflict of evidence on any point affecting the merits of the issues, there was no occasion for granting a new trial on the “weight of the evidence”; and there being no other error in the trial record, the order of the court was error and should be reversed. .Ordelheide v. Land Co., 208 Mo. 243; Crawford v. Stock Yards (Mo. Sup.), 114 S. W. 1059.

<p>Appeal from St. Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge.</p> <p>■ (1) Plaintiff pleaded and proved a case of negligence for the jury. 2 Hutchinson on Carriers (3 Ed.), sec. 924; Wise v. Railroad, 135 Mo. App. 230, 115 S. W. 452; Briscoe v. Railroad, 222 Mo. 104, 120 S. W. 1162; Price v. Railroad, 220 Mo. 435, 119 S. W. 932; Moorman v. Railroad, 105 Mo. App. 711; Holland v. Railroad, 105 Mo. App. 117; Gidionsen v. Railroad, 129 M'o. 392; Burr v. Railroad, 64 N. J. Law 30; Field v. Railroad, 69 N. J. Law 433; Farnon v. Railroad, 180 Mass. 212; Railroad v. Bell, 93 Tex. 632; Railroad v. Pollard, 22 Wall. 341; Lynn v. Railroad, 103 Cal. 7, 24 L. R. A. 710. (2) Plaintiff should not be held guilty of contributory negligence as a matter of law; that-question the court upon proper instructions submitted to the jury. - 3 Hutchinson on Carriers (3 Ed.), sec. 1216; 1 Fetter on Carriers, par. 165, p. 420; 2 Wood on Railway Law, sec. 309, p. 1333; Holland v. Railroad, 105 Mo. App. 117; Coudy v. Railroad, 85 Mo. 79; Burr v. Railroad, 64 N, J. Law 30; Moore v. Railroad, 119 Mich. 613; Barden v. Railroad, 121 Mass. 426; Sturdivant v. Railroad (Tex.), 27 S. W. 170; Romine v. Railroad, 24 Ind. App. 230. (3) The law as stated in the authorities cited under Points and Authorities, I. and II., supra, was embodied in the first instruction, and the court erred in granting defendant a new trial. Saxton v. Railroad, 98 Mo. App. 494; Vaughn v. Traction Co., 139 M'o. App. 91, 120 S. W. .683; Bartley v. Railroad, 130 Mo. 124; Hite y. Railroad, 130 Mo. 132; Burr y. Railroad, 64 N. J. Law 30; Fitch v. Mason City, 124 Iowa 665; Railroad v. Adams, 192 U. S. 440. (4) The granting of a new trial for alleged errors of law should not he sustained on the grounds of judicial discretion. Loftus y. Railroad, 220 Mo. 470, 119 S. W. 942. (5) If the court erred in granting a new trial, the judgment should be reinstated as of March 17, 1908, the date of original entry. Deschner y. Railroad, 200 Mo. 310; Loftus y. Railroad, 220 Mo. 470, 119 S. W. 942.</p> <p>(1) As appellant’s abstract of the record does not show that a certified copy of the order sustaining respondent’s motion for a new trial, and the order granting the appeal were ever filed in this court, the appeal should be dismissed. Wagon Co. v. Cornell, 131 Mo. App. 345. (2) The court did not err in sustaining respondent’s motion for a new trial on the ground stated in its order. Railroad y. Byrd et al., 42 So. 288; Railroad v. Newmeyer, 28 N. E. 862; Flynn v. Bridge Co., 42 Mo. App. 536; Sullivan y. Railroad, 88 Mr. 182; Implement Co. v. Richey, 143 Mo. 612; Shepherd v. Transit Co., 87 S. W. 1010; Toncrey v. Railroad, 107 S. W. 1091. (3) If the action of the trial court in sustaining the motion for a new trial is sustainable on any other ground than that stated in the order, its action will be affirmed by this court. Emmons v. Quade, 176 Mo. 22; Hewitt v. Steele, 108 Mo. 473; Morrison v. Roach, 104 Mo. App. 637; Morelock v. Railroad, 112 Mo. App. 644. (4) The action of the trial court in sustaining respondent’s motion for a new trial is sustainable on other grounds. Adams y. Railroad, 74 Mo. 556; Scovill v. Glassner, 79 Mr. 455; Lockhart v. State, 111 S. W. 1027; Abies y. Ackley, 126 Mo. App. 87; Canterbury y. Kansas City, 130 Mo. App. 4; Sharp v. Odum, 121 Mo. App. 566; Railroad v. Barger, 12 S. W. 156; Rider y. Railroad,-14 Mo. App. 533; Railroad v. Smith, 84 S. W. 853; Lowry y. Railroad, 40 Mo. App. 557; Railroad v. Taliaferro, 89 S. W. 1120; Elcox v. Hill, 98 U. S. 224; Heddles y. Railroad, 42 N. W. 241; More-lock v. Railroad, 112 Mo. App. 644; Railroad v. Physioc, 92 S. W. 305; Foley y. Railroad, 79 N. E. 765; Hawk v. Railroad, 108 S. W. 1121; Sansom y. Railroad, 111 Fed. 890; Ozanne v. Railroad, 151 Fed. 902; Wait y. Railroad, 165 Mo. 623; Dougherty v. Railroad, 36 So. 699; Hite v. Railroad, 130 Mo. 139; Hedrick y. Railroad, 195 Mo. 121; Harris v. Railroad, 89 Mo. 233; DeBolt y. Railroad, 123 Mo. 507; Martin y. Railroad, 119 S. W. 444; Young y. Railroad, 84 S. W. 175; Krum v. Railroad, 76 S. W. 1075. As appellant did not file a complete transcript of the evidence, this court will presume that the trial court’s action in sustaining respondent’s motion for a new trial was correct. Mfg. Co. v. Roach, 104 Mo. App. 637; Moore y. Harmes, 123 Mo. App. 35; Plumbing Co. v. Brewing Co., 126 Mo. App. 270.</p>

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. The demurrer to the evidence should have been sustained. Plaintiff! used chain for unauthorized and improper purpose. The end-gate chain was not furnished or designed to boom to. Defendant furnished safe and secure rings and bars for this purpose. Plaintiff’s injury was due to the fact that he improperly used the end-gate chain to boom to, a purpose for which it was neither furnished nor designed.

Louis City Circuit Court. — Hon. Ghas. Glaflm Allen, Judge. (1) Appellant is not liable under the lease, because neither an. assignment of the lease to him nor any occupation of the premises by him is shown. Dougherty v. Mathews, 35 Mo. 520; Hynes v. Ecker, 34 Mo. App. 650. (2) Neither a contract to occupy the premises nor any occupancy thereof being shown, appellant cannot be held liable as a monthly tenant. 1 R. S. 1899, sec. 4110; Squire v. Brewing Co., 90 Mo.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. Plaintiff’s second instruction is erroneous, because it does not limit plaintiff’s recovery for tbe items of damage, medical attention and loss of earnings to the respective amounts demanded therefor in his petition. Smoot v. Kansas City, 194 Mo. 522; Tirkle v. Railroad, 212 Mo. 445. The instruction was correct both in form and as to substance.

Louis City Circuit Court. — Hon. Dan'l Q-. Taylor, Judge. (1) The bill of lading introduced by plaintiff shows that the goods were to be delivered to the Merchants Despatch Transportation Company at the port of Boston, and by them to be forwarded from Boston to East St. Louis, 111.

Louis City Circuit Court. — Ron. Dan’l G. Taylor, Judge. (1) The court erred in permitting witnesses Carter and Hurley to testify as experts on the stopping of cars because it was not shown that they were experienced in the operation of cars of the kind in question, or in the handling of air-brakes such as' were used on the defendant’s car. Mamerberg v. Railroad, 62 Mo. App. 563; Culbertson y. Railroad, 140 Mo. 59; Heinzle v. Railroad, 182 Mo. 554; Gourley v. Railroad, 35 Mo.

Louis City Circuit Court. — Eon. James E. Withrow, Judge. (1) Appellant’s instruction No. 3 which was in the nature of a demurrer to the evidence should have been given, because (1) there was no substantial evidence of any undue influence, and (2) there was no substantial evidence of want of mental capacity, (a) There Avas no substantial evidence of “undue influence” as defined by Gay v. Gillilan, 92 Mo. 261; Studebaker v. Cofield, 159 Mo. 614; McKissock v. Groom, 148 Mo.…

Louis City Circuit Court. — Hon. Robert M. Foster, Judge. The defendant cannot be bound by the admissions charged to have be'en made by Joseph M. Hafner previously in litigation to which this defendant was not a party, and wherein said Hafner was testifying as a defendánt in that case and not on behalf of or as representing the defendant in this case.

Louis City Circuit Court. — Eon. Wm. M. Kinsey, Judge. (1) The court erred in admitting the statutes of Illinois in evidence and in rendering judgment on the verdict of the jury against Margaret Epperson and Jane Harris in the sum of $435.42, when under the deed offered in evidence, the said Margaret Epperson and Jane Harris only had a dower interest in said property.

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) In order for one person to be bound by the acts of another upon the theory of agency, such other must have been expressly given authority to do the act in question; or the act when done must have been knowingly ratified by the principal, or such conduct on the part of the principal must be shown as would constitute a holding out to third persons by the principal of such person as his agent.

Louis County Circuit Court. — Eon. John W. McElhinney, Judge. (1) The remedy by injunction to prevent the violation of a negative agreement, or a contract not to do a particular thing, is closely akin to the remedy by way of the specific performance of an agreement of an affirmative nature. By enjoining the violation of a negative contract a court of equity in effect decrees its specific performance.

Louis City Circuit Court. — Eon. O’Neill Ryan, Judge. Statement. — The petition in this case contains two counts, the first asking the cancellation of the record of a certain deed of trust given by plaintiffs, it being averred that the debt secured thereby had been paid and discharged in full and that the plaintiffs had tendered the necessary fee fixed by law to entitle them to have the satisfaction of the deed of trust indorsed on the record thereof.

Louis City Circuit Court. — No». Jesse A. McDonald, Judge. (1) The trial court erred in refusing the following instruction asked by the defendant, to-wit: Plaintiff alleges in his petition that one result of his injuries is that he has become sexually impotent.

<p>1. JURISDICTION: Subject-Matter. A court of general jurisdiction is possessed of jurisdiction of the subject-matter if it has jurisdiction to hear and determine causes of the general class of the one under consideration.</p> <p>2. -:-■ — : Waiver: Unlawful Detainer. Although a circuit court has no jurisdiction, in the first instance, pertaining to an action for unlawful detainer of land situate in another county, it nevertheless has jurisdiction of the general class of such actions, and when such an action was maintained in the circuit o'ourt of the county other than that in which the land in controversy, is situated and the parties appeared in that court and proceeded to a trial of the cause, they waived their right to complain.</p> <p>3. JURISDICTION: Person: Consent. The appearance of parties at the trial of a cause gives the court jurisdiction over their persons, by consent.</p> <p>4. APPEAL BONDS: Sureties Liable When Judgment Is Established as Valid. Where a judgment was affirmed on appeal and determined to be valid, and the covenant of the sureties on the appeal bond was to pay a “valid” judgment, if such should be obtained against their principal, the judgment was within the covenant of the sureties and they should respond in accordance with the condition of their undertaking.</p>

<p>Appeal from Jackson Circuit Court. — Hon, Hermann Brumback, Judge.</p> <p>(.1) The defendant’s employees were not guilty of negligence. Evans v. Railroad, 178 Mo. 508; Cahill v. Railroad, 205 Mo. 393; Sissel v. Railroad, 214 Mo. 515; McKee v. Railroad, 96 Mo. App. 671. (2) The plaintiff was guilty of contributory negligence. Moore v. Railroad, 146 Mo. 572; Davies v. Railroad, 159 Mo. 1; Hurst v. Railroad, 163 M’o. 309; Evans v. Railroad, 178 Mo. 508; Clancy v. Railroad, 192 Mo. 615; McGrath v. Transit Co., 197 Mo. 97; Cahill v. Railroad, 205 Mo. 393; Brockschmidt v. Railroad, 205 Mo. 435; Sissel v. Railroad, 214 Mo. 515; Grout v. Central Electric Co., 125 Mo. App. 552; Schaub y. Railroad, 113 S. W. 1163. (3) The switch crew, including the engineer and fireman, were fellow servants of the plaintiff, and he cannot recover for their negligence, e-ven if they were negligent. McDermott v. Railroad, 30 Mo. 115; Rollback v. Railroad, 43 Mo. 187; McGowan v. Railroad, 61 Mo. 528; Long v. Railroad, 65 Mo. 225; Zimmerman v. Railroad, 71 Mo. 476; Blessing v. Railroad, 77 Mo. 410; Corcoran v. Railroad, 78 Mo. 567; Renfro v. Railroad, 86 Mo. 302; Parker v. Railroad, 109 Mo. 362; Card v. Eddy, 129 Mo. 510; Lanning v. Railroad, 196 Mo. 647; Koerner v. Car Company, 209 Mo. 141; Tabor v. Railroad, 210 Mo. 385 ; Strottman v. Railroad, 211 Mo. 227; Broadwater v. Railroad, 212 Mo. 437; Mathieson v. Railroad, 118 S. W. 9.</p> <p>(1) Appellant was negligent in not warning respondent of the locomotive’s approach. Koerner v. Car Co., 209 Mo. 142; Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856; Johnson v. Railways, 203 Mo. 381; 23 Am. and Eng. Ency. Law (2 Ed.), sub. “Negligence,” p. 768; 5 Thompson on Negligence, p. 187; Railway v. McGlamory, 89 Tex. 635, 35 S. W. 1058; Steffe v. Railway, 156 Mass. 262, 30 N. E. Rep. 1137; Taylor v. Railway (Tenn. 1893), 27 S. W. 663; Railway v. Slattery, 57 Kan. 409; Dickson v. Railway, 104 Mo. 504; Guliek v. Clarke, 51 Mo. App. 33; Snyder v. Railway (1899), 60 Ohio St. 477, 54 N. E. 475. (2) Respondent, a car inspector, not a fellow servant with switching crew. Parker v. Railway, 109 Mo. 391; Sullivan v. Railway, 97 Mo. 113; Murphy v. Railway, 98 Mo. 537; Dayharsh v.. Railway, 103 M'o. 575; Koerner v. Car Co., 209 Mo. 142; Miller v. Railway, 112 Mo. 86; Schlereth y. Railway, 115 Mo. 87; Jones y. Railway, 178 Mo. 528; Young y. Railway, 196 Mo. 647.</p>

— Hon. Wm. B. Teasdale, Judge. (1) Plaintiff’s first instruction was erroneous. It went beyond the issues made by the pleadings, and did not limit the “highest reasonably practical degree of care” to the specific negligence charged in the petition; it covered the entire field of negligence.

Original Proceeding: Prohibition. (1) A public office, and not a mere employment, is involved herein. The commissioner of street cleaning is an officer, and not a mere employee. State ex rel. v. May, 106 Mo. 488; K. C. Charter, pp. 367-368. He is a municipal officer and not an officer “under the state” in the meaning of article 6, section 12 of the constitution. State v. Ragsdale, 132 Mo. 210.

— Hon. Wm. H. Martin, Judge. (1) The court has no jurisdiction of the defendant Vaughn. State ef rel. v. Bradley, 193 Mo. 33; Graham v. Ringo, 67 Mo. 324; Bank v. Knox, 47 Mo. 333; Hazelton v. Messmore, 184 Mo. 298. (2) Unless there is a joint liability between the defendants the plaintiff cannot maintain the action.

— Hon. Henry M. Ramey, Judge. (1) Under the facts, it is impossible for plaintiffs to be innocent holders, of the note in suit, for the reason, that they received it from an insolvent corporation organized under foreign laws.

— Hon. Clyde Taylor, Special Judge. (1) All the evidence in the case having been offered by respondent, she is bound by the testimony of the witnesses, which is nncontradicted. Claflin v. Dodson, 111 Mo. 195; Bensberg v. Harris, 46 Mo. App. 404; St. Louis v. Kansas Oity, 110 Mo. App. 653.

— Hon. E. B. Morrison, Special Judge. (1) The party wall agreement provided that the ownership in the party wall acquired by Fredricka D. Evans and Henry F. Evans, grantors of Swentzel, runs with the land, and thereby it became a part of the land covered by the description of lot 115 in block 8, McGee’s addition. These rights inured to the future owner or owners of the above named lot. See Exhibit 1, abstract 32-34; 30 Oyc. 794; Huston v. deZeng, 78 Mo.

— Hon. Alonzo D. Burnes, Judge. (1) Whenever a change of policy takes place in the State on the subject of its liquor legislation, by the adoption of a different system, as when general prohibition, or prohibition for particular localities is enacted, this has the effect to repeal all the inconsistent provisions in municipal charters and the ordinances adopted under them. Black on Intoxicating Liquors, sec. 224; State ex rel. v. M'cCammon, 111 Mo.

<p>Appeal from DeKalb Circuit Court. — Hon. Alonso D. . BurneSj Judge.</p>

— Hon. John P. (1) The term “usual short rate” in the policy means a “customary short rate.” And that this custom must he so well known by the. insurer as well as the insuring public, in the community where the insurance was written, that the parties to the contract will be presumed to have contracted with reference to it. 29 Am. and Eng. Ency. of Law, 371, 372, 388-390; S. W., etc., Co. v. Stanard, 44 Mo. 71; 7 Ency. of Ev., p. 513. (2).

— Hon. Thomas J. Beehorn, Judge. (1) William. Murphy was the owner of the land at the time this suit was brought, and he was not made a party until long after the statute of limitations had run, although plaintiff had actual notice of his ownership. The bills were issued November 7, 1902; the last installment fell due May 31, 1906, and the lien expired as to parties sued after May. 31, 1907.

<p>Appeal from Ray Circuit Court.- — Eon. F. E. Trimble, Judge.</p>

— Hon. John P. Butler, Judge. (!) There was no contract or agreement of settlement. Page on Contracts, sec. 24-28; Egger y. Nesbit, 122 Mo. 667; Cangass y. Mfg. Co., 37 Mo. App. 297.

— Eon. James T. EemUe, Judge. (1) A real estate agent is entitled to his commission when he procures a purchaser able and willing to buy on the terms authorized by the principal, and the purchaser is ready, able and willing to carry out such terms. Morgan v. Keller, 194 Mo. 663. (2) The refusal of the owner’s wife to join in the deed will not relieve the owner from liability for the commission. McCray y. Pfast, 118 Mo. App. 672; Curry y. Whitmore, 110 Mo. App. 204.

Alfred Page, Judge. (1) It devolves upon defendant to establish the failure of consideration, or fraud and the knowledge thereof, on part of the plaintiff before or at the time of such purchase. Hahn v. Bradley, 92 Mo. App. 399; 7 Cyc. 943. (2) Failure of consideration is no defense, if instrument is in the hands of a person who received it in “due course.” Neg. Inst. Law, secs. 28, 57.

— Eon. James T. Neville, Judge. Under these circumstances, if plaintiff in fact sustained any damage, it was merely incidental to a proper and lawful change made in the road by the county court for the common good, for which the defendant cannot be held liable in this action. Reardon v. St. Louis Coiinty, 36 Mo. 555; Swinneford v. Franklin Co., 73 Mo. 279; Abbott v. Railway, 83 M'o. 277; Foster y. Kansas City, 114 Mo.

— Eon. L. B. Woodside, Judge. This case falls clearly under section 3410, vol. 1, Eevised Statutes 1899: “After ■ every sale of personal property possession must he taken within a reasonable time and must be open, notorious and unequivocal such as to apprise the community or those who are accustomed to deal with the vendor that the goods have changed hands, and that the title has passed out of the seller and into the purchaser;” this may be determined by the vendor using the…

— Hon. Argus Good, Judge. (1) Tbe trial court erred in refusing to direct a verdict for tbe defendant, under tbe undisputed evidence and tbe admitted physical facts. Loring v. Railroad, 128 Mo. 349; Aerkfetz v. Humphreys, 145 U. S. 418; Elliott v. Railroad, 150 U. S. 245; Fore v. Railroad, 114 Mo.

— Hon. James T. Neville, Judge. (1) Estoppel in pais whether the estoppel arises from negligence, laches or otherwise must be pleaded in order to be available as a defense. 16 Cyc. of Law and Proc., 772; Bank v. Doran, 109 Mo. 40; Golden v. Tyler, 180 Mo. 196; Cockrill v. Hutchinson, 135 Mo. 67; Bray v. Marshall, 75 Mo. 327; Noble v. Blunt, 77 Mo. 235 ; Vanderline v. Smith, 18 Mo. App. 55; Inv. Co. v. Bank, 96 Mo. App. 125.

— Eon. James T. Neville, Judge. (1) If the main purpose of the contract in question was to foster the trade and enhance the business of plaintiff, it is valid, and does not contravene the antitrust laws of the State, although it may incidentally or indirectly restrict competition.

— Eon. A. W. Lincoln, Judge. (1) Instruction number one should ha.ve been refused, because it fails to instruct the jury “that ten years adverse occupancy and use of a road by the public will be sufficient, if acquiesced in by the owner, to vest in the public an easement in the road and cause it to become a public highway.” State v. Wells, 70 Mo. 635; State v. Walters, 69 Mo. 463; State v. Baldridge, 53 Mo.

— Hon. W. N. Evans, Judge. 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 an indictment will he taken by intendment. State v. Patterson, 159 Mo. 191; State v. Meyers, 99 Mo. 197; State v. Minor, 193 Mo. 597.

— Eon. W. N. Evans, Judge. When the defendant comes lawfully into the possession of goods and his conversion of them is only technical and without willful wrong, and the property remains in statu quo, evidence of a tender of the goods made to the owner subsequent to such conversion and of his continued readiness to return the property, is admissible in .mitigation of the damages, but not. as a complete defense to the action. Ward v. Moffett, 38 Mo.

<p>Appeal from Greene Circuit Court. — Hon. James T. Neville, Judge.</p>

— Hon. Walter A. Powell, Judge. (1) Tbe certificate of deposit introduced in evidence is a negotiable instrument and the rights and liabilities of the parties to this suit should be determined by the statutes of Missouri and the law of merchants. Laws of 1905, p. 243, sec. 1; 7 Cyclopedia of Law, p. 535, 811, note 55 and p. 853; Adell & Frink v. Cray & Co., 15 Mr. 357.

<p>Appeal from Jackson Circuit Court. — Hon. W. O. Thomas, Judge.</p> <p>(1) The court erred in excluding evidence as to the directions given to deceased by his foreman. Brim v. Fleming, 135 Mo. 606; Bank v. Rood, 132 Mo. 261; Stanton v. Ryan, 41 Mo. 510; Leahy v. Simpson, 60 Mo. 83; Baer v. Paff, 44 Mo. App. 35; Clark v. Thias, 173 Mo. 645. (2) The court erred in admitting in evidence mortality tables taken from the statutes of 1879. The omission of that table of figures from the revision of 1889, and the substitution of the actuaries’ or combined experience table, was equivalent to a repeal of so much of that law as was so omitted. R. S. 1889, sec. 6606; Blodgett v. Shafer, 94 Mo. 653; Bird v. Sellard, 113 Mo. 580; M'erriwether v. Love, 167 Mo. 514; Berkshire v. Railroad, 28 Mo. App. 225; Young v. Railroad, 33 Mo. App. 509. (3) If these statutes were in force, they should not have been read to the jury. R. S'. 1899, sec. 748; Sparf v. United States, 156 U. S. 51; Woods v. Campbell, 110 Mo. 572. (4) The court erred in refusing defendant’s seventh instruction on the issue of the contributory negligence of deceased. Rigsby v. Supply Co., 115 Mo. App. 297; Lang v. Bolt & Nut Co., 131 Mo. App. 146; Holmes v. Brandenbaugh, 172 Mo. 53; Shepherd v. Transit Co., 189 Mo. 362; Adolff v. Baking Co., 100 Mo. App. 199; Browning v. Kasten, 107 Mr. App. 59; McKee v. Railroad, 96 Mo. App. 671.</p> <p>(1) It was the duty of the defendant to safely and securely guard its shafting, gearing, etc., in its manufacturing establishment, the same being dangerous to its employees while engaged in their ordinary duties. R. S. 1899, sec. 6433; Lore v. Manufacturing Co., 160 Mo. 608; Bair v. Heibel, 103 Mo. App. 623; Stafford y. Adams, 113 Mo. App. 717. (2) Where a master fails to safely and securely guard the shafting, gearing, etc., as required by statute, the servant does not assume the risk thereof. Bair v. Heibel, 103 Mo. App. 623; Stafford v. Adams, 113 Mo. App. 717; Curtis v. McNair, 173 Mo. 279; Parks v. Railway, 178 Mo. 108. (3) It is negligence per se for the owner of a factory to fail to so guard said shafting, gearing, etc. Stafford v. Adams, 113 Mo. App. 717; Colliott v. Mfg. Co., 71 Mo. App. 163; Lore v. Mfg. Co., 160 Mo. 608. (¡4) In the absence of evidence to the contrary, deceased is presumed to have been in the exercise of ordinary care at the time of his injury. (5) Contributory negligence is a defense, and the burden is upon the defendant to establish that defense with proof. M'iller v. Railway, 164 Mo. 198; Bueshing v. Light Co., 73 Mo. 219; Pairgrave v. Moberley, 29 Mo. App. 155; Smiley v. Railway,'160 Mo. 635. (6) In a suit under sections 2865-6, Revised Statutes 1899, for the death of a person, caused by a wrongful act, neglect or default of another, the expectancy of life may be considered by the jury in estimating the damages. O’Mellia v. Railroad, 115 Mo. 205; Jones v. Railroad, 178 Mo. 528. (7) And the American experience mortality table is admissible in evidence to show, probable duration of life. Boéttger v. Architectural Co., 136 Mo. 531; Corbitt v. Mooney, 84 Mo. App. 645. (8) The testimony of Thomas Pearson, defendant’s superintendent and agent, with respect to the contract of employment between himself as agent for defendant and Joseph Collins, was properly excluded. Williams v. Edwards, 94 Mo. 447; Hollmann y. Lange, 143 Mo. 107; Nelson v. Railroad, 66 Mo. App. 652; Henry v. Buddecke, 81 Mo. App. 365; Donnell v. Jung, 81 Mo. App. 581.</p>

<p>Appeal from Harrison Circuit Court. — Hon. G-. W, Wwinamaker, Judge.</p>

— Eon. G-. W. yVannamalcer, Judge. (1) The separation agreement was a bar to the action for divorce. Simpson v. Simpson, 31 M'o. 24; Dwyer v. Dwyer, 16 Mo. App. 422. The evidence did not establish Indignities within the meaning of the statute. (2) All of it amounted simply to the wrangling due to lack of conciliatory temper of both parties. It was not an indignity. Holschbach v. Holschbach, 134 Mo. App. 257; Webb v. Webb, 44 Mo. App. 229; Griesedieck v. Griesedieck, 56 Mo.

— Eon. G. A. Mosman, Judge. (1) The action of the court in the grading proceedings was proper. No person claimed damages and there was no necessity or even propriety in appointing commissioners. Sec. 5670, Mo. Annotated Stat. 1906. (2) The record shows that in the grading proceedings the court had jurisdiction of the subject-matter and of the parties; of the subject-matter by the certified copy of the ordinance and plat filed, of the parties by the order of publication.

— Eon. John Q. Park, Judge. (1) On the conceded facts in this case, plaintiff’s wife was both expressly and impliedly invited by defendant to go on defendant’s premises where she fell into the well, from which her death resulted. And the trial court erred in sustaining defendant’s demurrer to the evidence and in not submitting the case to the jury.

— Ron. Wm. P. Borland, Special Judge. (1) The court erred in refusing appellant’s instruction in the nature of a demurrer to the evidence. Rissler v. Transit Co., 113 Mo. App. 120; Trigg v. Transit Co., 114 S. W. 972; Haley v. Railway, 197 Mo. 15. (2) There is no presumption of law that a child of the age of deceased, old enough to attend school, is incapable of contributory negligence.

— Son. L. J. Eastin, Judge. The city ordinance pleaded in plaintiff’s petition and introduced in evidence is not unreasonable and void. McHugh v. Transit Co., 190 Mo. 85: Sluder v. Transit Co., 189 Mo. 107. The rule of law that a carrier of passengers is not an insurer is well established in this and other jurisdictions, and the passage of the ordinance in question did not in any way change or modify this rule.

— Eon. Louis Hoffman, Judge. (1) The petition in this cause is based upon the contract shown by the ticket on its face and as being the contract between the parties. This contract only entitles the plaintiff to ride to Muskogee, but she was allowed to show and recover upon a contract lying behind the ticket, and which entitled her to ride to Sedalia.

— Hon. L. J. Eastin, Judge. The court erred in admitting in evidence the written notice offered, by plaintiff, there being no evidence that the same had been served upon the city, (a) The affidavit of Mr. Mitchell reciting that he had served the notice was not competent evidence. Patterson v. Fagan et al., 38 Mo. 82. (b) The statute requiring this notice to be served upon the city, does not provide that service may be shown by affidavit. R. S-. 1899, sec. 5724.

— Hon. N. D. Thurmond, Judge. (1) It appears without contradiction or controversy that Youmans, with full knowledge of the conductor’s lack of authority, and of the express rules forbidding it, persuaded him to allow him to ride free of charge on a through freight train which was not permitted to carry passengers. Hence, deceased was in law, and in fact, a trespasser upon the train at the time of the accident. Purple v. Railway, 114 Fed.

<p>1. CARRIERS: Assault on Passenger by Conductor. While a passenger who starts a controversy with an employee of the carrier cannot ordinarily complain of too vigorous a defense, yet where the employee beats him excessively and unreasonably, the carrier is liable.</p> <p>2. -:-: Master and Servant. A carrier is responsible for the assault of a conductor upon a passenger while the latter is engaged in the performance of his duties, but not after the relationship of carrier and passenger has ceased.</p> <p>3. -:-:-. Where the employee uses only such force as is reasonably necessary to defend himself there is no liability.</p> <p>4. -: -; instructions. An instruction authorizing a verdict for defendant if the plaintiff gave defendant’s conductor reasonable cause for an assault is properly refused because its effect was to justify the action of the conductor even though he may have used unreasonable and unnecessary force after plaintiff had started the controversy.</p> <p>5. -: ————: -. In a simple case there is no necessity for twenty-eight instructions on behalf of one of the parties.</p> <p>6. -: -: Exemplary Damages. Where a conductor ■follows a passenger to the steps of the car and strikes him with an iron bar while he is in the act of getting off, the jury is justified in assessing exemplary damages.</p> <p>7. 'PLEADING: Special Damages. Where plaintiff’s petition charges mental derangement, evidence as to change of disposition is not without the .issues.</p> <p>8. -: -. Functional troubles which might result from an injury hut do not necessarily so result, should he specially pleaded.</p> <p>9. DAMAGES: Excessive. Under the evidence in this case a verdict for $5000 is not excessive.</p>

<p>Appeal from Buchanan Circuit Court. — Eon. Geo. L. Zwichj Judge.</p> <p>(1) The damages claimed were speculative. Fisher v. Goebel, 40 Mo. 475; Wilson v. Weil, 67 Mo. 399; Rannells v. Hewitt, 10 Mo. App. 593; Sanders v. Brossius, 51 Mo. 50; Lewis v. Insurance Co., 61 Mo. 534; Turner v. Gibbs, 50 Mo. 556; Taylor v. McGuire, 13 Mo. 517; Burdall v. Johnson, 122 Mo. App. 119; Knight Bros. v. Railway, 122 Mo. App. 42; Connoble v. Clark, 38 Mo. App. 477; Hughes v. Hood, 50 Mo. 350. (2) The loss- to plaintiff is not the correct measure of damages. Huiest v. Marx, 67 Mo. App. 422.</p> <p>(1) The contract shown in evidence, although verbal and for a longer period than a year, when followed by the delivery of possession created a tenancy for one year. It was therefore valid and binding on the parties and upon its breach appellant was answerable to respondent for the full measure of the damages sustained. R. S. 1899, sec. 3414; Kerr v. Clark, 19 Mo. 132; Ridgely v. Stilwell, 28 M'o. 400; Scully v. Murray, 34 Mo. 420; Cunningham v. Roush, 157 Mo. 336; Hoser v. Yokel, 58 Mo. App.. 169; Kroeger v. Bohrer, 116 Mo. App. 208; Womach v. Jenkins, 128 Mo. App. 408. (2) The tenancy in this case began in November, 1904, when respondent entered into the contract for the premises, and took possession thereunder. Taylor- on Landlord and Tenant, sec. 58; Womach v. Jenkins, 128 Mo. App. 408. (3) The damages were not speculative, but were such as could reasonably be 'determined from the evidence. Park v. Kitchen, 1 Mo. App. 357; M'anter v. Truesdale, 57 Mo. App. 435; Brandt v. Schuchman, 60 Mo. App. 70; Stewart v. Patton, 65 Mo. App. 21; Chalice v. Witt, 81 Mo. App. 84; Shoemaker v. Crawford, 82 M'o. App. 487; Gildersleeve v. Overstolz, 90 Mo. App. 518; Shirt Co. v. Frankenthal, 96 Mo. App. 307; Fitzgerald v. Hayward, 50 Mo. 516; Hammond v. Bee-son, 112 M'o. 190; Bendell v. Johnson, 122 Mo. 123; Taylor v. Bradley, 39 N. Y. 129; Wak eman y. Mfg. Co., 101 N. Y. 205; Wolf v. Studebaker, 65 Pa. St. 461; Chapman y. Kirby, 49 111. 211.</p>

<p>LIMITATION OF ACTIONS: Origin of Cause of Action: Foreign Statute: Application Here. A suit in Missouri on a note made in Pennsylvania, dated and payable in Missouri and delivered in Missouri, is not barred by the Pennsylvania Statutes of Limitation, but is governed by our own statute.</p>

— Hon. Alonso D. Burnes, Judge. No notice of tbe loss of tbe property was required in this case, as tbe property was not delivered by defendant to plaintiff, at tbe place of destination. Ward v. Railroad, 158 Mo. 226; Milling Co. v. Railroad, 127 Mo. App. 80.

— Hon. Thomas J. Seehorn, Judge. Under the evidence in this case the verdict was the result of conjecture. Such a verdict should not be upheld. Sheldon v. Railroad'Co., 29 Barb. 226; Byerly v. Consolidated, etc., Co., 130 Mo. App. 593, 603; Oglesbay v. Railway Co., 177 Mo. 272; Moore v. Railway, 28 Mo. App. 622; Smart v. Kansas City, 91 Mo. App. 586; Cothron v. Packing Co., 98 Mo. App. 343; Browning v. Chicago, etc., Co., 106 Mo. App. 729; Young v. Railway, 113 Mo.

<p>Error to Jackson Circuit Court. — Hon. E. E. Porter-field, Judge.</p>

— Hon. Wm. H. Martin, Judge. (T) It is competent to show that the consideration recited in a deed is fictitious. Bobb v. Bobb, 89 Mo. 411; Hollocher v. Hollocher, 62 Mo. 267; O’Day v. Conn, 131 Mo. 321; Fontaine v. Savings Institution, 57 Mo. 552. (2) The description in question is wholly insufficient to support a judgment to enforce a vendor’s lien. Jefferson City v. Whipple, 71 Mo. 519; State v. Burroughs, 174 Mo. 519; State v. Railway, 114 Mo. 1.

— Hon. John G. Parle, Judge. (1) Defendant’s demurrer to plaintiff’s evidence should have been sustained. Scott v. Riley, 49 Mo. App. 251; Commission Co. v. Hunter, 91 Mo. App. 436; Blackman v. Welch, 44 Mo. 45; Bank v. Powers, 134 Mo. 446. (2) Plaintiff’s instruction number 1 was erroneous. It failed to state the rule as to what would make a mortgage fraudulent.

— Hon. L. B. 'Woodside, Judge. (1) The court erred in admitting evidence of the price paid by plaintiff for the property in question. This is not proper evidence of damage. Miller v. Bryden, 34 Mo. App. 602; St. Louis Range Co. v. KlineDrummond Co., 120 Mo. App. 438.

— Hon. L. B. Wood-side, Judge. (1) The resolution as published complied with all the requirements of law. R. S. 1899, sec. 5989; King v. Lamb, 117 Cal. 401, 49 Pac. 561; Paving Co. v. O’Brien, 128 M'o. App. 268; Jones v. Plummer, 118 S. W. 109. (2) The board of aldermen had the right and authority to correct the minutes of April 8, 1909, by entry made June 28, 1909; 21 Am. and Eng.

— Hon. L. B.Woodr ■ side, Judge. (1) “Saw Timber,” as a matter of law, and in the light of the testimony, embraces all trees of every variety whatsoever, including all species of oak, not less than six inches, and certainly not less than eight inches at the butt, found on the premises in controversy. 28 Am. and Eng. Ency. of L. (2 Ed.), 536; 26 Am. and Eng. Ency. (2 Ed.), 453; 19 Am. and Eng. Ency.

— Hon. George Pepper dine, Special Judge. (1) The contract, while testamentary in character, is lacking in all the essential forms of a will and is not effective as a testamentary disposition. M'iller v. Holt, 68 Mo. 584; Murphy v. Gabbert, 166 Mo. 696; Chew v. Keller, 171 Mo. 222; Dozier v. Toalson, 180 Mo. 552; Hershey v. Clark, 35 Ark. 17; Wilenou v. Handlon, 69 N. E. (111.) 892; Culey v. Upham, 94 N. W. (Mich.) 405; Aldridge v. Aldridge, 202 Mo. 565.

<p>CRIMINAL LAW: Druggist: Selling Intoxicating Liquor: Evideince. Defendant, a druggist, was tried on the charge of selling intoxicating liquor in violation of law. In addition to one witness testifying that he had purchased a half pint of whisky of defendant’s clerk, it was also shown by the State, over the objections of defendant, that out of a barrel of whisky purchased by defendant on the first of the month, sixteen gallons had been sold by the middle of the month, and that defendant also kept beer on ice in the back room of the drugstore. Held, that the evidence was sufficient to support the verdict of guilty, and that the evidence admitted over defendant’s objection was properly admitted as circumstances to be considered by the jury.</p>

— Hon. James T. Neville, Judge. (1) The agreement in the written contract of June 21, 1906, to “furnish repairs, ordinary wear and tear excepted,” obligated the defendant to rebuild and repair, after a partial destruction by fire. Hoy v. Holt, 91 Penn. 88, 36 Am. Rep. 659; Beach v. Crain, 2 N. Y. (2 Comst.) 86, 49 Am. Dec. 369; Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115; Scott v. Scott, 18 Gratt (Ya.) 166; Ross v. Overton, 3 Cal. 309, 2 Am.

<p>Appeal from Barry Circuit Court. — Eon. F. C. Johnston, Judge.</p>

— Hon. L. B. Wood-side, Judge. (1) • It was incumbent upon the plaintiff, having alleged a partnership liability, to prove a partnership contract; and not a joint liability by operation of law. Dempsey v. Harrison, 4 Mo. 267; Campbell v. Hood, 6 Mo. 211. (2) When a corporation, as in this case, has been lawfully formed, the stockholders are not partners, even among themselves, unless the governing statutes have made them so.

— Eon. Alfred Page, Judge. (1) Plaintiff’s own testimony shows that she fully knew and understood the character and construction of the stairway down which she fell, as well as all the surrounding conditions; for nearly eleven months had been familiar therewith, and fully knew, understood and appreciated the dangers, if any, incident to the use thereof.

— Hon. Hugh Dabbs, Judge. Where a plaintiff has elected one of two remedies for the enforcement of a right, and such action is barred by the statute, he is bound by his election, and cannot ' thereafter resort to the other remedy for which a different limitation is provided. 25 Cyc. 999; Garrett v. Conklin, 52 Mo. App. 654; McCormick v. Kaye, 41 Mo.

Writ of error to Dent Circuit Court. — Eon. L. B. Wood-side, Judge. (1) The election was.also illegal because tbe ballots were illegal and did not have printed thereon the language expressly provided by the statute. R. S. 1899, sec. 9752; People ex rel. y. Hanson, 36 N. E. 998; Union Co. y. Ussery, 35 N. E. 618. (2) Provisions of the statute prescribing the kind of ticket to be used bv the voter are mandatory.

<p>Appeal from Barton Circuit Court. — Son. B. G. Thurman, Judge.</p> <p>(1) In a case involving a long account on either side, such cases should be referred. R. S. 1899, sec. 698; Smith v. Healy, 41 Mo. 611; Goetz v. Piel, 26 Mo. App. 634; McCormick v. St. Louis, 166 Mo. 315; Drug Co. v. Graddy, 57 Mo. App. 41; Ittner v. Ass’n, 97 Mo. 561; Roscoe v. Kinnealy, 8 Mo. App. 76. (2) Where property is insured and is destroyed through the negligence of another and the insurance paid exceeds the value of the property destroyed, the right of action against the party who causes the loss is in the insurer and the insured has no right of action therefor. Insurance Co. v. Railroad, 74 Mo. App. 107; Insurance Co. v. Railroad, 149 Mo. 165; Allen v. Railroad, 68 N. W. 873; Marvin Ins. Co. v. Railroad, 41 Fed. 643. (3) There was not sufficient evidence in this case to go to the jury upon the question of a locomotive engine of the appellant having set out the fire. Gibbs v. Railroad, 104 Mo. App. 276; Peffer v. Railroad, 98 Mo. App. .291; Bates Co. Bank v. Railroad, 98 Mo. App. 330; Manning v. Railroad, 119 S. W. 464.</p> <p>(1) The court committed no error in overruling appellant’s motion to refer. Fitzgerald v. Hayward, 50 Mo. 516; Vicar v. Stone, 47 Mo. App. 530; Ice Co. v. Tamm, 138 Mo. 385; Kenneth Inv. Co. v. Bank, 96 Mo. App. 125; Thornton v. Life Assn., 7 Mo. App. 544; Freeman v. Insurance Co., 13 Abb. Pr. 125. (2) The action was well brought in the name of the owner of the property. The legal title to the property was in her. The fact that she had insurance was wholly immaterial. The appellant was no party to the insurance contract and could derive no benefit therefrom. Carroll v. Eailroad, 88 M'o. 239; Dillon y. Hunt, 105 Mo. 154; Matthews v. Eailroad, 121 Mo. 298, 142 Mo. 645; Conner v. Eailroad, 181 Mo. 397; Ekhart v. Eailroad, 136 Mo. App. 617; Muldron y. Eailroad, 62 Mo. App. 431. (3) The evidence was amply sufficient to justify the court in submitting the question of the origin of the fire to the jury, and amply sufficient to support the verdict. Kenney v. Eailroad, 70 Mo. 243; Torpey v. Eailroad, 64 Mo. App. 382; Fields y. Eailroad, 113 Mo. App. 647; Lead Co. v. Eailroad, 123 M'o. App. 397; Tapley v. Eailroad, 129 Mo. App. 88; Wright v. Eailroad, 107 Mo. App. 209.</p>

— Hon. Howard Gray, Judge. (1) The liability of appellant is measured by the terms of its written contract. Wollman v. Casualty Co., 87 Mo.' App. 677. (2) Where the policy so provides, defendant is not liable to plaintiff until actual payment of the judgment in the original case. Allen v. Insurance Co., 145 Fed. 881, 137 Fed. 136; Connolly v. Bolster, 72 N. E. (Mass.) 981; Travelers Ins. Co. v. Moses, 63 N. J. Eq. 260, 49 Atl. 720, 92 Am.

— Hon, Henry. L. Bright, Judge. A city cannot accept the benefits of the water supplied it by a waterworks company and then, when sued for a recovery of the amount agreed to be paid for the: supply of water, urge that the amount supplied was; insufficient and for that reason there was a failure to comply 'with the contract, and hence the company is not entitled to recover anything.

<p>Appeal from Jasper Circuit Court. — Hon. Hugh Dabbs, Judge.</p>

<p>APPELLATE PRACTICE: Defective Abstract. A purported abstract .contained some excerpts from the testimony, motions for new trial and in arrest, and two instructions of which complaint was made, but there was nothing to show that the bill of exceptions contained any of the matters of exception: Held, that the appellate court could not pass on these matters and that because of the defective abstract the appeal should be dismissed.</p>

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

<p>APPEAL AND ERROR: Transfer of Cause. The Act of 1909, pp. 396 and 397, provides that certain cases shall be transferred from the Supreme Court to the proper courts of appeal, “to be heard and determined by them.” Held, that a fair and reasonable construction of this Act is that when a case is so transferred, it shall be heard and determined by the court of appeals in the same manner as if the case had gone to the court of appeals originally, and that the case can be again transferred to another court of appeals under the Act' authorizing such transfer.</p>

— Hon. F. O. Johnston, Judge. .When a cause is reversed and remanded with directions to enter a particular judgment, the trial court cannot include in the judgment any other or different relief than that directed. It is confined to the relief ordered and cannot take any step not directed. It was error for the court to restrain plaintiff from taking any step to determine and enforce the liability of the surety on the forthcoming bond, as no such relief was- ordered.

<p>DRAMSHOPS: Local Option: Winegrowers. The adoption of the Local Option Law suspends the provisions of the dramshop article in toto, and the provision df the dramshop article which permits a winegrower to sell wine on his own premises does not permit him to make such sale after the adoption of the Local Option Law.</p>

— Son. Sermann Brumback, Judge. (1) A plaintiff will not be permitted to bring a suit upon one cause of action and recover upon another. Ensworth v. Barton, 60 Mo. 511; Eyerman v. Cemetery Assn., 61 Mo. 489; Huston y. Scale Works, 56 M'o. 416; Robinson v. Rice, 20 Mo. 229; Chitty v. Railway, 148 Mo. 64; Raming v. Railway, 157 Mo. 477; Harrison v. Railroad, 37 Mo. 307.

— lion. G. A. Mossman, Judge. (1) An allegation that the wrong complained of consisted in failing to give the passenger an opportunity to alight at the point designated in his contract of carriage is not proven by evidence showing that the conductor undertook to let him off at some other .point, and negligently performed the undertaking. The variance is one that goes to the entire cause of action, and will not sustain a verdict upon the petition.

<p>Appeal from Daviess Circuit Court. — Eon. Arch B. Davis, Judge.</p>

<p>SUPREME AND COURTS OF APPEALS. Where a case has been decided by the Supreme Court, which, in the opinion of the court of appeals, applies to a case in the latter court, it is the duty of the latter court to follow it, even though wrong. And though it should be conceded that matters of controlling importance in such case were not brought to the knowledge of the Supreme Court, of which, if that court had been advised, it would not have decided as it did, yet the court of appeals must nevertheless follow the decision as it stands.</p>

— Eon. Alomo D. BurneSj Judge. (1) The petition on its face discloses that the agreement was within the Statute of Frauds (sec. 3419, R. S. 1899), and the objection to the introduction of any evidence should have been sustained. (2) Defendant may rely on the Statute of Frauds when the agreement is denied by his answer, and it is not necessary to insist upon the statute as a bar. Wildbahn v. Roubidoux, 11 Mo. 419; Milling Co. v. Burgher; 122 Mo.

— Hon. L. J. Eastin, Judge. • A city owns and controls its streets as a trustee for the public. It is charged by the law that the primary and bounden duty of keeping them free from nuisances, defects and obstructions caused by itself or third parties if it (in the latter instance) had actual or constructive notice thereof in time to abate the nuisance, remove the obstruction and improve the defect, and that duty it cannot shirk or shift over to or halve with others.

— Hón. E. E. Porterfield, Judge. (1) To entitle plaintiff to recover there must have been substantial evidence 'tending to establish negligence on the part of the defendant. Powell v. Railway, 76 Mo. 80; Commissioner v. Clark, 94 TJ. S. 284; Bank v. Bank, 10 Wall. 639; Jackson v. Hardin, 83 Mo. 175; Avery v. Fitzgerald, 94 Mo. 207; Long v. Moon, 107 Mo. 338; Moore v. Railway, 28 Mo. App. 622; Peck v. Railway, 31 Mo. App. 123; Zurfluh v. Railway, 46 Mo.

— Son. O. A. ■ Mosman, Judge. Punitive damages are not given as a matter of right and it is always a question for the jury to determine in any case whether or not they are to he allowed. Callahan v. Ingram, 122 Mo. 372; Nicholson v. Rogers, 129 Mo. 136; Sedgwick on Damages, sec. 387;. 2 Thompson on Trials, sec. 2065; Carson v. Smith, 133 Mo. 606.

Appeal'from Buchanan Circuit Court.’ — Hon. C. A. Mosman, Judge. The decree is erroneous in that it prohibits the construction of this track until the damages plaintiffs may sustain by reason of the operation of the track are assessed and paid. Railway v. Railway, 97 Mo. 457; Railway v. Railway, 118 Mo. 599; Bldg. Ass’n v. Telephone Co., 88 Mo. 25S; De Goefroy v. Railroad, 179 Mo. 720; Sherlock v. Railway, 142 Mo. 172.

— Hon. James T. Neville, Judge. (1) While it is sufficient to charge negligence in general terms, if plaintiff attempts to particularize and make specific allegations of negligence, the special facts pleaded must be so pleaded as to constitute a cause of action. Feary v. Railroad, 162 Mo. 75; Fuch v. City, 167 Mo. 620; Conrad Gro. Co. v. Railroad, 89 Mr. App. 534; Spiro v. Transit Co., 102 Mo. App. 250; Aston v. Transit Co., 105 Mo. App. 226; Garven v. Railroad, 100 Mo.

Appeal fro-m Howell Circuit Court. — Son. W. N. Evans. Judge. (1) If there is any immaterial variance between the pleading and the proof, the court should instruct on the evidence as it is adduced on the trial. Hensler v. Stix, 113 Mo. App. 162; Fisher v. Realty Co., 159 Mo. 562; Chouquette v. Railroad, 152 Mo. 257; Mellor v. Railroad, 105 Mo. 455; Madison v. Railroad, 60 Mo. App. 599; Edge v. Railroad, 206 Mo. 471.

— Hon. John T. Moore, Judge. On respondent’s motion to dismiss appellant’s appeal or affirm the judgment, we submit the following authorities: Lawson v. Mills, 150 Mo. 428; State v. Harris, 121 Mo. 445; State v. Ryan, 120 Mo. 88; West: ern Storage Co. v. Glasuer, 150 Mo. 426; St. Charles v. Deemer, 172 Mo. 122; Walner v, Wade, 124 M'o. App. 496; Paxson v. Drayage Co., 55 Mo. App. 556; Hodstadt v. Daggs, 49 Mo; App. 157; Brand v. Cannon, 118 Mo. 595; State v. Chaney, 49 Mo.

— Hon. F. C. Johnston, Judge. (1) Instruction No. 1 is erroneous in that it directs tbe jury that tbe law presumes tbe falsity of defendant’s statement; and instructions 6 and 10 are subject to the same objection. Ham v- Barret, 28 Mo. 388; Erhart v. Dietrich, 118 Mo. 426; Sackberger v. Grand Lodge, 73 Mo. App. 38; Winter v. Lodge of K. P., 96 M'o. App. 1; Lynch v. Railroad, 112 Mo. 433; Moberly v. Railroad, 98 Mo. 183; Burkholder v. Henderson, 78 Mo.

— Hon. John T. Moore, Judge. (1) ■ The court erred in not giving defendant’s requested declaration of law, in the nature of a demurrer to the evidence, because plaintiff had entirely failed <to comply with the provisions of the contract of shipment requiring him to give notice in writing, within one day after the delivery of such stock at destination, before such stock was removed from such place of destination or was mingled with other stock.

<p>1. PRACTICE: Pleading: Abatement of Action: Suit Against Stockholder and Another Against Corporation for Same Debt. Plaintiff instituted a suit to recover judgment against the defendant for a debt owed by a corporation of which defendant was a stockholder, and which corporation was alleged to be insolvent. The defendant filed a motion to strike the cause from the docket on the ground that plaintiff had instituted a suit for the same debt against the corporation. On the showing that the other suit was pending, th© trial court sustained the motion. Held, that the pendency of the suit against the corporation was no ground for abating the suit against the stockholder and that the motion to dismiss was not the proper pleading in any event; that the plea of another suit pending should be set up in the answer.</p> <p>2. -: — : -: Actions Against Stockholders and Corporations. The statute (R. S. 1899, sec. 987) which provides that if a corporation be dissolved leaving debts unpaid suit may be brought against stockholders without joining the corporation leaves the implication that it would be proper to join the corporation in the same suit.</p> <p>3. -: Actions Between Same Parties: Abatement of Action. The general rule is, where two suits are brought at different times between the same parties, and for the same thing, the suit first brought occupies the ground, and that subsequently brought will be abated.</p> <p>4. -: -: -: Pleading. Though under our code a former suit pending between the same parties for the same thing is a matter of defense and must be pleaded with matter going to the merits of the action, still such defense is matter in abatement of the suit.</p> <p>5. -: Another Suit Pending: Abatement of Action. The ground upon which courts proceed in the abatement of subsequent suits is that they are unnecessary and vexatious and that the plaintiff can obtain his remedy in the first suit as completely as in the second; but, where it is sought to abate one action because another suit is pending, and it appears that the other suit is not between the -same parties, the principle can have no application.</p>

Writ of Error to Jasper Circuit Court. — Hon. Haywood Scott, Judge. (1) Complying witli the statute by the making and filing of the estimate by the city engineer gave the council jurisdiction. Independence v. Biggs, 58 Mo. App. 246; De Soto v. Showman, 100 Mo. App. 323, 73 S. W- 257; Boonville ex rel. y. Stephens. 95 S. W. 316. (2) In general, the requirements of the ordinance as to notice for bids are directory in their character.

— Hon. D. E.~ Blair, Judge. (1) The special finding of facts made by the court is not conclusive where the record does not contain evidence sufficient to support such findings. De Soto v. Insurance Co., 102 Mo. App. 1; Freeman v. Hemingway, 75 M'o. App. 617; Nichols v. Carter, 49 Mo. App. 401; Kansas City Gro. Co. v. McDonald, 118 Mo. App. 471; Fitzpatrick v. Weber, 168 Mo. 572. (2) The finding of facts must conform to the pleadings, issues and proof.

<p>CRIMINAL LAW: Misdemeanors: State Cannot Appeal From Order Sustaining Plea in Abatement. The State has no right to appeal from an order of the trial court sustaining a plea in abatement to an indictment charging defendant with a misdemeanor.</p>

<p>Appeal from Jasper Circuit Court. — Hon. Henry L. Bright, Judge.</p>

<p>Appeal from Ozark Circuit Court. — Eon. John T. Moore, Judge.</p>

<p>1. CRIMINAL LAW: Violating Local Option Law: Sufficiency of Evidence. In a criminal case, where defendant was charged with violating the Local Option Law, a witness testified that he went into defendant’s hack room and .found a bottle where another party told him he would find it, took some of the whiskey and left thirty-five cents; that he had no conversation with the defendant or any of the clerks about- the sale. The instruction submitted the question to the jury of the sale by any one of the employees of defendant. Held, erroneous, as there was no evidence upon which to base the instruction; but the evidence in this case was held sufficient to go to the jury on a sale by defendant.</p> <p>2. INSTRUCTIONS: Criminal Law: Violating Local Option Law. Defendant was charged with the illegal sale of intoxicating liquor. The instruction used the phrase “directly or indirectly” in submitting the question of sale. This Was condemned, and it was held further that under the evidence the court should have given a proper instruction telling 'the jury what would constitute a sale.</p> <p>3. -: -: -. In a criminal case, where defendant was charged with violating the Local Option Law, the use ■of the word “therefore” in an instruction is condemned for by its use it assumes that the defendant was engaged in the sale of intoxicating liquors.</p>

— Eon. John P. Butler, Judge. The court erred in giving the plaintiff’s 4th instruction. The law is that any carrier may, in consideration of a reduced rate or charge, limit the amount of its liability in case of loss in transportation. Rice v. Railway, 63 Mo. 314; Harvey v. Railroad, 74 Mr. 638; Kellerman v. Railroad, 136 Mo. 177; Railroad v. Oleary, 77 Mo. 634; George v. Railroad, 214 Mo. 551; Smith v. Railway, 112 Mo.

<p>1. CONTRACTS: New Parties: Quantum Valebat: Estoppel. Defendant contracted with a quarryman for crushed stone at 85 cents per cubic yard if he would furnish 150 yards per day, and 70 cents per cubic yard if less was delivered. While deliveries were being made the quarry plant changed hands and the last operator continued to furnish rock to defendant, billing the same at 85 cents per yard, but delivered less than 150 yards per day. Defendant knew of the change of management, the last operator of the quarry did not know the terms of his predecessor’s contract. Eighty-five cents per yard was the reasonable value of the rock furnished. Plaintiff, assignee of the last operator, was entitled to recover 85 cents per yard for the rock delivered to defendant.</p> <p>2. PLEADING: Amendment. The original petition charged that the stone was delivered at the “agreed price” of 85 cents per yard. . On the trial the court properly permitted plaintiff to amend by substituting for the original charge the allegation that the stone was delivered at the “reasonable value” of 85 cents per yard.</p>

<p>COUNTY ROADS: Practice: Appeals: Costs. On petition filed to establish a public road the county court appointed commissioners who allowed appellant $200 on account of damages to his land. He excepted and on motion was allowed a trial before a jury, which also allowed him $200, and the county court thereupon dismissed the petition and taxed the costs of the jury trial against appellant, who appealed “from the judgment taxing costs” to the circuit court. On motion the circuit court properly dismissed the appeal, there being no provision of statute for the allowance of an appeal from the judgment of a county court taxing costs in such a case.</p>

— Eon. John P. Butler, Judge. *'(1) An express trust as to land cannot be created by parol. R. S. 1899, sec. 3416; Woodford v. Stephens, 51 Mo. 443; Crawley v. Crafton, 193 Mo. 421. (2) A voluntary executory agreement to create a trust as to personal property cannot be enforced. Banking Co. v. Miller, 190 Mo. 640.