Volume 144 — Missouri Appeal Reports

— Hon. Alonso D. Burnes, Judge. (1) The conduct of the jury on its first verdict evidences prejudice and passion, and the judgment should he set aside. Fallow v. Grantham, 66 Mo. App. 509; Spiro v.- Transit Company, 102 Mo. App. 266; Richardson v. Forebuckles, 122 M'o. App. 529; Whitsett v. Ransome, 79 Mo. 258; Morris v. White, 188 Mo. 20. (2) Evidence of the character of a horse is always admissible.

— Hon. James H. Slover, Judge. (1) , Deceased was guilty of absolute recklessness, in coming upon or walking along the track, at the time and place of accident, and tbe plaintiffs, by reason thereof,- are not entitled to maintain this action. The demurrer to the evidence should therefore be sustained.

— Hon. George W, Wanamalcer', Judge. (1) In slander, the jury is not the judge of the law, to any extent. Grimes v. Thorp, 113 Mo. App. 652; Sands v. Marquardt & Sons, 113 Mo. App. 490. (2) Justification must be pleaded. R. S. 1899, sec. 636; Bliss, Code Pleading (3 Ed.), secs. 359, 361; Boone, Code Pleading, 72; Yager v. Bruce, 116 Mr. App. 473; 18 Am. and Eng. (2 Ed.), pp. 1008, 1070. The defendant is now dead.

— Eon. Nat M. Shelton, Judge. (1) The order of the county court calling the election is insufficient because it attempts to leave to the discretion of the county clerk the number of publications, etc. State v. Kellogg, 133 Mo. 431; State ex rel. v. Baldwin, 109 Mo. App. 573; People v. Town of Linden, 107 Cal. 94; City of St. Louis ex rel. v. Clemens, 43 Mo. 395. (2) The county court was without authority to make the order, of January 13th.

— Hon. A. F. Evans, Special Judge. (1) The shipment in this case having originated in Alabama and the bill of lading having been issued there, it is not affected by the statute of this State (R. S. 1899, sec. 5222), but all rights and liabilities will be governed and controlled by the common law. Coal & Coke Co. v. Railroad, 116 Mo. App. 224; Cronch v. Railroad, 42 Mo.

<p>Appeal from Carroll Circuit Court. — Hon. Francis H. Trimble, Judge.</p>

<p>Appeal from Buchanan Circuit Court. — Hon. C. A. M osman, Judge.</p>

— Eon. Thomas J. Beehorn} Judge. (1) It is not alleged or proven that any rebate or contract therefor enhanced to any extent the contract price, or that but for such arrangement the work could have been let cheaper. This being so, it is dámnum absque' injuria. Allen v. Labsap, 188 Mo. 692; Jaicks v. Merrill, 201 Mo. 91; Gist v. RacklifE, 123 S. W. 921.

— Hon. O. A. Mos-man, Judge. (1) Under the evidence in this case, the company was liable as an insurer of the baggage belonging to Mr. and Mrs. Burnes. The baggage was not in the sole possession and control of the owners, and under these facts the company is liable. Railroad v. Lillie (Tenn.), 78 S. W. 1055; 4 Elliott on Railroads, sec. 654. (2) Essex Allen was agent of the defendant company, although paid by tips. Perkins v. Wright, 37 Ind. 27.

B. G. Thurman, Judge, (1) Bills and notes remain negotiable after payment, so far as respects the parties who shall knowingly negotiate the same afterward, for in such case the negotiation cannot prejudice any other persons and will only charge themselves. Mabry v, Matheny, I'O Smedes and Marshall, 323, 48 Am. Dec., 753; Daniels on Neg. Inst. (4 Ed.), 1242; Wade v. Small, 2 Greenleaf, 207; 11 Am.

Appeal, from Saline Circuit Court. — Son, Samuel Davis, Judge. In all cases of uncertainty, the tenant is most favored by law because, the landlord, having the power of providing expressly in his favor, has neglected so to do; and on the principle, also, that every man’s grant shall be taken most strongly against himself. Taylor’s Landlord and Tenant (4 Ed.), sec. 81;.Webb v. Dixon, 9 East 15; Folts v. Huntley, 7 Wend.

— Hon. • Denton Dunn} Special Judge. The evidence wholly fails to sustain any verdict against the defendant: (a) Because being landlord out of possession at the time of the accident, he is not liable, (b) Because, in any case, the undisputed testimony shows diligent attention to the premises on his part, though not incumbent on him.

— Eon. Nat M. Shelton, Judge. (1) The life tenant is bound to pay all the accruing interest on existing incumbrances upon the estate. Tiedeman on Real Property, sec. 66, p. 42; 16 Cyc., p. 634, par. 12. (2) ' If the incumbrance itself is discharged by the life tenant the amount should he apportioned ratably between him and the remaindermen. See authorities above cited.'

— Hon. Arch B. Davis, Judge. (1) An appellate court is not required to search the transcript to see if appellant’s abstract is correct. If defendant in error questions the sufficiency of the abstract, he must properly present his point. McQueen v. Groff, 105 Mo. App. 165; Mink v. Chesney, 110 Mo. App. 334; Fischer v. Mayor, 112 Mo. App. 686; Telephone Co. v. Hope, 123 S. W. 501; Parkey v. Reese, 125 S. W. 212; Grubbs v. Watkins, 125 S. W. 214.

<p>USURY: ■ Criminal and Civil Statute. Though a criminal statute makes the act of receiving usury a misdemeanor and punishes the act, yet if the civil statute fixes the status of usurious contracts by providing the penalties to be inflicted in civil actions upon them,' the latter statute governs and the contract is not void.. .</p>

— Eon. Walter A. Poioell, Judge. (1) The State has not the power to enter into business for the purpose of furnishing a commodity more economically to the consumer. Opinion, of the Justices, 155 Mass. 598, 15 L. R. A. 809; Re Municipal Fuel Plants, 182 Mass. 605, 60 L. R. A. 592.

— Hon. N. D. Thurmond, Judge. (1) When a parent resides-in.the household of a child, and the child renders services for the parent, the legal inference arises that such services were gratuitous, and in natural response to the promptings of filial affection and duty. Lawrence v. Bailey, 84 App. 107; Erhart, Adm’r, v. Deitrich, 118 Mo. 431; Penter v. Roberts, 51 Mo. App. 222. (2) The court did not err in sustaining defendant’s demurrer to the evidence. Cotton v. Huston, 110 Mo.

— Hon. John G. Park, Judge. Under a covenant of warranty to defendant “against tke lawful claims and demands of all persons whomsoever,” the covenantee is entitled to- recover his costs and the reasonable expenses, including attorneys’ fees, of defending an attack upon the title so warranted in cases where the attack is formidable and made with reasonable ground of recovery, and is not merely a vexatious pretended claim.

— Hon. John P. Butler} Judge. (1) The Opinion Rule excluding opinions of non-expert witnesses is not applied 'so as to forbid “descriptions of the appearances externally indicating internal states — for example, whether a person booked’ sick or sad or angry.” 3 Wigmore on Ev., sec. 1974.

<p>1. DIVORCE: Custody of Children. A mother of two girl children eleven and thirteen years of age was divorced from their father on account of his adultery. She was given the custody of the children. She afterwards married and went to reside in another State, taking the children with her. On an application to change the custody to the father it was shown that she had married a good and worthy man of competent fortune; that, the children were and would be well provided for in every proper way. Held, that it was error to take the custody of the children from the mother.</p> <p>2. -: -: Subsequent Marriage. Where the mother secures a divorce for the fault of the husband and is awarded the custody of the children, her subsequent marriage and taking the children to reside with her husband is, of itself, not sufficient to cause a change of custody.</p> <p>3. -: -: Removal to Another State. Where the mother, upon a decree of divorce in her favor, is awarded the custody of the children, remarries, and, with them, resides with her husband in another State, it is not of itself sufficient to justify a change of custody to the father, there being nothing in the decree preventing a removal beyond the jurisdiction of the court.</p> <p>4. -: -: Appeal. An appeal will lie from the order of the circuit court changing the custody of children from that made when the divorce was granted; provided it is applied for at the term the order is made.</p>

— Eon. Francis E.. Trimble, Judge. (1) The plaintiff was employed to do certain .work: pile and re-pile timbers and paint or varnish them; that was his work and whatever risks attended the work were assumed by him, and for that reason the demurrer to the evidence should have been sustained. Bradley v. Forbes Tea Co., 213 Mo. 320; Hollaran v. Union Co., 133 Mo. 470; Harvester Co. v. Zak Zewski, 220 111. 522, 77 N. E. 147; Winkler v. Basket Co., 137. Mo. 400.

— Eon. Alonzo D. Burnes, Judge. The city by its own wrong prevented the contract from being carried out on the line contracted for. And by its own wrong caused the added expense and is liable to plaintiffs for the loss occasioned them by its fault or neglect. Murray v. Kansas City, 47 Mo. App. 105; Brady v. St. Joseph, 84 Mo. App. 399; Chambers v. St. Joseph, 83 Mo. App. 536; Ash v. Independence, 79 Mo.

<p>1. COMMON CARRIERS: Street Railways: Right to Refuse to Carry Passengers. A street car company has the right to move its cars from one place to another on its lines, without putting such cars in passenger-carrying service, and a person who is' advised of the fact that a car is not carrying passengers and who thereafter insists on taking passage on such car is a trespasser.</p> <p>2. -: -: -. While a carrier has the right to eject a trespasser from one of its cars, it must use no more force in his expulsion than is reasonably necessary to accomplish that result.</p> <p>3. -: -: -. There was substantial evidence in this case that defendant’s employees in charge of defendant’s car1 used unnecessary force in expelling plaintiff while he was trespassing thereon, and this court will not interfere .with the verdict on the claim that it is against the weight of the evidence.</p> <p>4. -: -: -: Punitive Damages: Evidence Showing Mitigation of Offense. Where a plaintiff is seeking punitive damages for excessive force used in his ejection from defendant’s car, it is competent for defendant to prove by its witnesses that plaintiff had made a practice of riding on cars which were not in passenger-carrying service and had had controversies with defendant’s employees over his claimed right to enter such ears. This evidence was competent on the question of malice, and its effect would tend to show that plaintiff had persisted in making a nuisance of himself, and it would have tended to mitigate defendant’s offense in using excessive force. The court erred • in refusing to admit such evidence, but as the jury allowed no punitive damages its error was harmless.</p> <p>5. -: -: -. If the above evidence had been admitted it would have impeached plaintiff as to certain statements made by him in his evidence on that issue. But as the jury allowed plaintiff no punitive damages, the failure of the court to admit this impeaching evidence became harmless error.</p>

— Son. Alex. S. Waller, Judge. (1) Every defect or imperfection in the streets or sidewalks of a city is not actionable, nor is the city a warrantor of the safety of its streets or sidewalks, or an insurer against accidents thereon. Craig v. Sedalia, 63 Mo. 417; Brown v. Glasgow, 57 Mo. 156; Russell v. Columbia, 74 Mo. 480.

— Eon. Walter A. Powell, Judge. (1) The remittitur should have been accepted and judgment entered for the reduced amount. Schergen y. Const. Co., 108 Mo. App. 262; Tilford y. Ramsey, 43 Mo. 420; Higgs v. Hunt, 75 Mo. 107; Rider y. Kirk, 82 Mo. App. 124; Furnish y. Railroad, 102 Mo. 456; Dawson y. Waldheim, 89 Mo. App. 248; 18 Ency. PL and Pr., p. 148.

— Son. James 23. Goodrich, Judge. (1) Omission to make the beneficiaries named in tbe deed of trust parties defendant was fatal; tbe suit could not be maintained against tbe trustee alone; be should not be required to take sides against one or for another of his beneficiaries, or to determine their rights as between each other. 2 Ency. PL and Pr., p. 890; 22 Id. 121, 141; Sampson y. Mitchell, 125 M'o. 217; Hubbard y. Burrell, 41 Wis. 365; Story Eq. Pldg.

— Hon. Samuel Davis, Judge. When a case has been decided upon appeal in the ultimate appellate court, and upon retrial in the court below', again reached the appellate court by appeal or writ of error, only such questions will be noticed on the latter appeal as wrere not determined in the previous decision; whatever was passed upon in the previous decision will be deemed res .adjudicata, and no longer open to dispute or further controversy.

— 3on. Francis H. Trimble, Judge. (1) Parol evidence of any agreement previous to the execution of the deed in question was inadmissible; the contract having been reduced to writing all prior arrangements became merged therein. Woodward v. McGaugh, 8 Mo. 161; Gooch v. Conner, 8 Mo. 391; Mc-Ilvane v. Harris, 20 Mo. 457; McLeod v. Skiles, 81 Mo. 595; Nichols v. Lapain, 105 Mo. App. 402.

— Hon. James E. Goodrich, Judge. On the pleadings, the law and the evidence, the finding and judgment should have been for the defendant, for the reason that the defendant, at time of the execution of the contract sued on, which was made in this State and to be performed here, was a foreign corporation doing business in this State without having complied with the law of this State in regard to such corporations; and hence, the contract is void, a mere nullity, and binding…

— Eon. Howard Gray, Judge. (1) The deceased was guilty of such contributory negligence in going upon defendant’s track in its switch yard, while its engine and cars were engaged in switching thereon, in plain sight and hearing, without taking any precaution whatever for his own safety, as to defeat a recovery.

<p>1. PRACTICE: Instructions: Common Error: Humanitarian Doctrine. At the request of plaintiff, who had a cause'of action, under the humanitarian doctrine, the court gave an instruction authorizing a finding for plaintiff if the jury found certain facts to be true. This instruction required the jury to find among other things that plaintiff “was not guilty of any negligence directly contributory to his injuries.” In such case plaintiff waived his right to complain that defendant’s instructions authorized a verdict for defendant if plaintiff was guilty of negligence directly contributing to cause his injuries.</p> <p>2. -: -: -. Defendant’s instructions in this case did not erroneously state the law with reference to the question of contributory negligence.</p>

— Eon. G. A. Denton, Judge. Before a vendee can sue to recover money paid on a land contract, lie must put tbe vendor in tbe wrong by tendering full payment. Abbott v. Draper, 4 Denio 51. (1) Even under tbe testimony of tbe appellant wbicb is just tbe opposite of tbe testimony of tbe respondent, there was no waiver of tbe terms of tbe contract in this case. Boulware v. Orobn, 122 Mr. App. 571; Burns v. Freling, 98 Mo. App. 267.

<p>Appeal from Jasper Circuit Court. — Eon. E. D. Blair, Judge.</p>

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

— Eon, L. B. Wood-side, Judge. (1) Plantiffs were entitled to pay the amount necessary to redeem from the sheriff’s deed and be subrogated to the rights of Halley against the interests of their co-tenants. Parsons t. Urie, 8 L. R. A. (N. S.) 559. (2) “A purchaser is fixed with constructive notice of whatever appears in the conveyances constituting his chain of title.” 23 Am. and Eng. Encv.

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

— Hon. John T. Moore, Judge. (1) On tbe question of tbe arresting of tbe running of tbe Statute of Limitations, tbe ultimate or constitutive facts are not disputed, and tbe proper verdict is merely the conclusion of the law upon the facts, and it was the duty of the court to peremptorily instruct the jury to find for the defendants on their counterclaim. Rhodes v. Farish, 16 Mo. App. 430; Bank v. Hainline, 67 Mo. App. 483; Clemens y. Knox, 31 Mo.

— Hon. W. N. Evans, Judge. (1) Defendants’ right of recovery must be confined to the facts alleged and proved, as constituting the cause of action. They cannot allege a state of facts and, on failure of proof, recover on another and different state of facts not pleaded. Link v. Vaughn, 17 Mo. 385; Enterprise Soap Works v. Sayers, 51 Mo. App. 310; Marcum v. Smith, 56 Mo. App. 460; Thompson v. Railroad, • 135.

— Hon. Henry L. Bright, Judge. (1) Where, under the regulations of the railroad company, the passenger is placed in a situation needing explanation as between himself and the conductor, it is the duty of the passenger to give the needed explanation and if he does so truthfully it will be at the risk of the carrier if the explanation is not accepted. Cleveland Ry. Co. v. Kinsley, 27 Ind. App. 135, 87 Am.

— Hon. Howard Oray} Judge. (1) Instruction number 5, given on behalf of plaintiff, should have been refused, and instruction 0, asked by defendant, given, as all the testimony on the question shows the sleet storm, to have been extraordinary and unusual, and it is in conflict with instruction number 10, given for defendant. Turner v. BOarr, 114 Mo. 346; McPherson v. Railroad, 97 Mo. 253; Stoher v. Railroad, 105 Mo. 195; Flori v. Railroad, 69 Mo. 341.

<p>Appeal from Christian Circuit Court. — Hon. John T. Moore, Judge.</p> <p>(1) The contract, the consideration for defendant’s notes, was an illegal and void contract. Greenhood on Pub. Pol., 1, 152; Champion Fdy. Co. v. Heskett, 125 Mo. App. 516, 102 S. W. 1050; Century Co. v. Quilling, 110 N. W. 174; Schmuckle v. Waters, 25 N. E. 281; Merrill y. Packer, 45 N. W. (Mich.), 1076; McNamara v. Gargett, 36 N. W. (Ia.) 218; Davis v. Seeley, 38 N. W. 901; Hubbard v. Greiburger, 94 N. W. 727; Sprague v. Rooney, 104 Mo. 358; McDearmott v. Sedgwick, 140 Mo. 181; Keim v. Vette, 167 Mo. 402; Attaway v. Bank, 93 Mo. 485. (2) The burden of proof of good faith was on plaintiff. Henry v. Sneed, 99 Mo. 422; Johnson v. McMurray, 72 Mo. 278; Hahn v. Bradley, 92 Mo. App. 405; Bank v*. Hammond, 104 Mo. App. 409; Stewart v. Andes, 110 Mo. App. 247, 84 S. W. 1134; Brown v. Hoffelmeyer, 74 Mr. App. 385; Gaus v. Weisenberger, 66 Mo. App. 114; Campbell v. Hoff, 129 Mo. 324. (3) The evidence admitted was proper, both to show the fraud in the inception of the contract, and as tending to show notice to the bank and a lack of good faith. Edwards v. Thomas, 66 Mo. 483; Brown v. Hoffelmeyer, 74 Mo. App. 391; Dávis v. Seeley, 38 N. W. 904; Manheimer v. Harrington, 20 Mo. App. 301; Davis v. Yories, 141 Mo. 241; Wood v. U. S., 16 Pet. 342; Swinney v. Patterson, 62 Pac. 1; State v. Beaucleigh, 92 Mr. 490.</p> <p>(1) The demurrer to the defendant’s evidence offered at the close of the testimony should have been sustained. Laws of Mo. 1905, 250; Bank v. Hainline, 67 Mo. App. 483; Hoster v. Lange, 80 Mo. App. 238; Mosby v. Commission Co., 91 Mo. App. 504; Bank v. Hammond, 104 Mo. App. 403; Poindexter v. McDowell, 110 Mo. App. 236. (2) The bank had no notice of the defect of title, if any, in O. S. Lowthrop and this is so, even if the evidence showed (which it did not) that Adams, the assistant cashier, had notice acquired by him through private transactions, heyond scope of his official duties. Bank v. Froman, 129 Mo. 437; Benton v. Bank, 122 Mo. 332; Bank v. Fitze, 76 Mo. App. 356; Penfield Inv. Oo. v. Bruce, 111 S. W. 888.</p> <p>Statement. — This was an action by the Bank of Ozark, appellant, as assignee without recourse, on two promissory notes, each for $144. There was a judgment for defendant in the circuit court and the plaintiff has appealed.</p> <p>The facts out of which this action arose are substantially as follows: Some time in April, 1906, Mark Lowthorp and W. F. Payne arrived in the city of Ozark, strangers, ostensibly for the purpose of selling a patent window-sash lock. They traveled over the country, making themselves agreeable to well-to-do farmers, staying for dinner and putting up window-sash locks. They represented that their business was a profitable one, and that they were making from four to ten dollars a day from the sale of these locks; they exhibited rolls of money and a bank book showing large deposits in the Bank of Ozark, hut in which, during the three months he was there, Lowthorp only deposited something less than one hundred dollars. They placed locks on public buildings, mostly on trial, to be returned if called for, and most of which were never called for or returned. They represented that they intended to make Ozark a distributing center for their wares, and that they had already arranged with Adams and Taylor, the cashier and assistant cashier of the plaintiff bank, to take charge of their general office. They stated that in such business they would need a large number of managing agents to have charge of the salesmen, look after supplies, and so forth. By means of their industry, quite an interest was aroused in the business by June 1st, at which time they brought on O. S. Lowthorp and one Fox to assist in gathering in their ripening harvest, Lowthorp having an interest as owner in the patent on the lock. In the meantime, they had taken pains to have the plaintiff hank write to Hope, Ark., procuring letters concerning the character of C. S. Lowthorp. The plan on which the scheme was to he operated was that each of the persons selected as managing agent was required to buy a so-called “contract,” for the price of $288; the price, however, was not made offensively prominent, and from some customers was altogether concealed. When a managing agent obtained a “contract,” he was furnished with a book of forty-eight coupons of six dollars each. Each of these coupons was good for an order for locks in any county in the United States. He was also given a power of attorney to appoint other managing agents on the same terms and furnish them with similar “contracts” and power of attorney to appoint yet other managing agents, giving them the same power of attorney. Any one making a sale of a “contract” was to receive one-half of the proceeds, and they had placed all the counties in the United States at the same price. They made a contract with the plaintiff bank for it to collect for such sales as might be made by their managing agents, and referred all persons to whom they wished to sell contracts to Adams and Taylor, and all persons who made inquiry of Adams and Taylor were informed by them that C. S. Lowthorp came highly recommended, saying to one victim — who had a stormy scene with Fox, and who was talking with Lowthorp in plaintiff bank — that they (Adams and Taylor) had wired to Arkansas, and, according to their knowledge, these men were all right. Several days before the plaintiff bank bought any of the notes, Adams and Taylor were shown the contract, power of attorney, and so forth, and represented that they had bought a “contract.” It was shown that during June, Taylor, while in and out of the bank every day, was not on duty, and that Adams had the entire management of the bank, merely reporting his action to the board at the end of each month.</p> <p>From the time of the beginning of their work, Mark Lowthorp had been stopping at defendant’s house, taking meals and leaving unsold locks there, showing silver loose in his buggy, telling him of their desire to appoint him as a managing agent to keep supplies, and so forth. On June 23d, Saturday evening, they all got the defendant into a room to “close up.” He is an old man, had been subject to “dizzy spells” when hot, and the evening being very warm, he states that he grew hot and dizzy. They stood between him and the door, some of them fanning him, and they asked him to sign what they represented and he believed to be a “receipt” of contract —two papers. His eyesight was bad and he was unable to see without his glasses, which were at home. But they showed him where to sign and he signed the papers, supposing them to be as represented, and not seeing anything which looked like a promissory note.' He had been 'told that the.book of coupons given him might be delivered to Adams and Taylor, or all coupons not used in ordering locks, and he would be credited therefor. His notes were sold to the bank the following Monday, June 25th. On that day, having read his “contract” and the receipt thereon and becoming dissatisfied, he went back and wanted to rescind and was told that his papers had been sent to the company making the locks in Illinois. It was also shown in evidence that on June 22d or 23d, one Hammond, who had bought a “contract,” had gone to the bank with Lowthorp, claiming to have been defrauded by him, and that Adams told Hammond they were all right. That one Hartley, on Saturday, June 23d, had also gone to the bank and talked with Adams, he being suspicious also, and Adams satisfied him it was all right. That one Billingsley, who had made his notes on June 22d (Friday), had gone to Ozark, not being able to sleep because of his suspicions, and told Taylor on the 23d or 24th of June that he had heard it was a fraud and asked if his note had been bought by the bank; that he was told it had not and he then told Taylor not to buy the note, that he would not pay it, at the time calling witnesses to the warning given Taylor, and that Taylor said they would not buy it. And Taylor testified that he told Adams not to buy it and they did not.</p> <p>On the first day of July the Lowthorps and their agents left Ozark and went to Marshfield, Taylor going with them. The scheme having been exposed by an Ozark newspaper, they were compelled to go elsewhere, and about the middle of July went to Linneus, Missouri, where the same program as at Ozark was followed. Several depositions of persons residing at or near Linneus were introduced by defendant, showing that the same tactics were used at Linneus as at Ozark.</p> <p>When defendant’s first note became due, he was notified that it was held by the plaintiff bank, and. upon his refusal to pay, this suit was instituted at the same time as others on similar notes.</p>

— Hon. F. G. Johnston, Judge. (1) It is the law that a release or an acquittance given by one joint obligee binds the other, but to this rule there are certain exceptions. One of those exceptions as where the joint obligee executing the release is acting in fraud of his co-obligee, and especially as alleged here, where the person in whose favor the receipt is given is assisting in the perpetration of the fraud. Lumberman’s Ins. Co. v. Preble, 50 111. 332; .

— Hon. W. N. Evans, Judge. (1) The five years in which the defendant’s timber deed limited it to remove the timber from the land involved having expired by more than a year when it cut the timber in controversy, it had absolutely no right to cut and remove such timber. State v. Kempf, 11 Mo. App. 88; Adkins v. Huff, 7 A. and E. Ann. Cas., 246; St. Louis Cypress Co. v. Thibedeaux, 45 S. R. 744; Saltonstall v. Little, 90 Pa.

— Eon. F. G. Johnston, Judge. (1) It was error to submit the case to the jury-on the entire information, as tbe verdict of guilty on the first count on tbe trial before tbe justice was an acquittal on the second and third counts. State v. Whitton, 68 Mo. 91; State v. Hays, 78 Mo. 609; State v. Patterson, 116 Mo. 511.

Clair Circuit- Court. — Hon. G. A. Denton, Judge. (1) The unauthorized setting of telephone poles and stringing wires and cables thereon is an obstruction of a public highway, and a private person has’ a right to enjoin such illegal obstruction, if he be damaged thereby differently than is the public at large, not merely in degree but kind. Heer D. G. Co. v. Railway, 41 Mo. App. 63; Gay v. Telephone Co., 12 Mo. App. 493; Cummings v. Ice Co., 156 Mo-. App. 32; 3 Pomeroy Eq.

<p>1. APPELLATE PRACTICE: Term to Which Appeal is Returnable. Under the rules of the appellate court (Rule 16, Springfield Court of Appeals), the date of the allowance of the appeal, and not the time of filing the hill of exceptions after the appeal is granted, shall determine the term of the appellate court to which such appeal is returnable.</p> <p>2. -: Failure to File Abstract: Delay in Filing Bill of Exceptions. Under Rule 21 of the Springfield Court of Appeals, an appeal must be dismissed for failure to comply with the statute (R. S. 1899, sec. 813), and Rule 12 of that court requiring abstracts to be served and filed. Appellant asked a continuance on the ground that the stenographer had not delivered the bill of exceptions in time to have the abstract printed, but from affidavits filed, it appeared that the fault was with the appellant in having failed to pay for the bill of exceptions, and respondent not agreeing to a continuance under Rule 21, the appeal must be dismissed.</p>

<p>Appeal from Newton Circuit Court. — Hon. F. C. Johnston, Judge.</p>

— Hon. Henry L. Bright, Judge. (1) Under the facts, the plaintiff was either a trespasser or a licensee without invitation. If he was even a licensee without invitation plaintiff owed him no affirmative duty, but only the obligation not to recklessly or purposely injure him. Shaw v. Goldman, 116 Mo. App. 340; Lowenstein v. Railroad, 134 Mo. App. 30; Yarnall v. ■ Railroad, 75 Mo. 573; Berry v. Cemetery Assn., 106 Mo. App. 358; Glassner v. Rothchild, 106 Mo.

— Hon. B. G. Thurman, Judge. (1) The petition did not allege a cause of action, in that it only charged a condition “likely” to cause an injury, and wholly failed to allege facts sufficient to constitute a cause of action for either common law or statutory negligence. Beasley v. Transfer Co., 148 Mo. 421; Plefka v. Knapp, 145 Mo. 318.

— Hon. F. G. Johnston., Judge. (1) Plaintiff’s reply to the said amended answer, “Denied generally each allegation of new matter in the said answer contained,” denied nothing, and the facts pleaded in said answer are confessed to be true. Long y. Long, 79 Mo. 644; Snyder y. Free, 114 Mo. 360; Bowles y. Bennington, 136 Mo. 522; Young y. Schofield, 132 Mo. 650; Dezell y. Casualty Co., 176 Mo. 279; Betz y. Telephone Co., 121 Mo. App- 473.

— Hon. W. N. Evans, Judge. (1) The statement wholly failed to allege a cause of action either under the statute or at common law. In alleging a statutory action it is necessary that facts be alleged sufficient to bring the case within the statute. Kennedy v. Railroad, 45 Mo. 255; Camp v. Railroad, 94 Mo. App. 272. This failure was not raised in the triál court, but may be raised for the first time on appeal. Weal v. Greene Co., 69 Mo. 281'; Usher v. Telegraph Co., 122 Mo.

— Hon. John T. Moore, Judge. (1) Clark changed his residence to Douglas county and removed thereto the property. It then became necessary that the mortgage be recorded in Douglas county which was not done. R. S. 1899, sec. 3404; Fahy v. Gordon, 133 Mo. 425; Rice, Stix & Co. v. Sally, 176 Mo. 133.

— Hon. Henry L. Bright, Judge. The court erred in refusing to give defendant’s peremptory instruction to find the issues for the 'defendant. Williams v. Railroad, 119 Mo. 319; Glasscock v. Dry Goods Co., 106 Mo. App. 657; Gurley v. Railroad, 104 Mo. 223; Yarn ell v. Railroad, 113 Mo. 570; Dowell v. Guthrie, 116 Mo. 646; Fuchs v. City, 167 Mo. 635; Sherman & Redfield on Negligence, sec. 185; Ring v. Railroad, 112 Mo. 231; Kane v. Railroad, 112 Mo.

— Eon. F. O. Johnston, Judge. (1) A justice of the peace has no power to vacate a judgment unless the same he a judgment by default or nonsuit. Langford v. Doniphan, 61 Mo. App. 288; Carson v. Tate, 8 Mo. 45; Leith v. Shingleton, 42 Mo. App. 449; Weeks v. Eitter, 81 Mo. 375; St. Joseph v.Hamilton, 43 Mo. 45.

— Hon. John T. Moore, Judge. (1) A broker may be the agent of both parties to a sale for the purpose of signing a memorandum of the sale, but in all other respects he is the agent only of the party employing him. Schlessinger v. Railroad, 13 Mo. App. 471, 87 Mo. 146. (2) Instructions should not be given where there is no evidence on which to predicate them. Gessley v. Railroad, 26 Mo. App. 161; Hinds v. Marshall, 22 Mo.

— Hon. F. G. Johnston, Judge. (1) It is a well-settled law in this State that money paid, under a mutual mistake of fact may he recovered back in an action for money bad and received. Davis v. Krum, 12 Mo. App. 279; Lyle v. Sbinnebarger, 17 •Mo. App. 74; Boon v. Miller’s Executors, 16 Mo. 457; Marion County v. Phillips, 45 Mo. 75; Koontz y. Bank, 51 Mo. 275; Dobson v. Winner, 26 Mo. App. 335; McDonald v. Lynch, 59 Mo. 350; Jordan v. Harrison, 46 Mo.

— Hon. Henry C. RUey, Judge. (1) This was a suit at law, the injunction being a mere incident or ancillary proceeding. Davison v. Hough, 165 Mo. 561; Beland v. Brewing Assn., 157 Mo. 593. (2) A jury being waived in this case, the finding of facts by the court sitting as a jury are as conclusive on appeal as would be a verdict of a jury. Baumhoff v. Railroad, 171 Mo. 120; Crain v. Peterman, 200 Mo. 295; Warner v. Close, 120 Mo. App. 211; Fuhlhage v. Nagle, 105 Mo.

Louis City Circuit Court. — Hon. D. D. Fishe-r, Judge. The deceased son of plaintiffs was guilty of negligence which proximately caused his own death or which contributed thereto. Hudson v. Railroad, 101 Mo. 13; Gurley v. Railroad, 104 Mo. 211; Lewis v. Railroad, 38 Md. 588; Railroad v. Pinchin, 31 Am. and Eng. Rd. Cas. 428; Jones v. Railroad, 13 L. R. A. (N. S.) 1066; 2 Rorer on Railroads, 1055; Moore v. Railroad, 146 Mo. 572; Montgomery y. Railroad, 109 Mo. App. 88.

— Hon. George Pepper dine, Special Judge. (1) The place where the captain wanted to alight was, by the-custom of the company, a regular stopping place. That being true, when he notified the agents of defendant in charge of the car that he desired to alight, and they recognized his notice by slackening the speed, it was their duty to have stopped the car and held it a reasonable time. And they were guilty of negligence when they accelerated its speed before he had gotten off.

Louis City Circuit Court. — Hon.Matt G. Reynolds, Judge. (1) Tbe subscription to tbe capital stock of a corporation in Missouri is an asset of tbe company, in which, by virtue of tbe subscription, tbe company, all individual members thereof, and all creditors, acquire an interest. Such a contract is one that cannot be can-celled or relinquished without the consent of all interested parties. Oldsheim v. Thompson, 44 Mo. App. 181; Erskine v. Peck, 18 Mo.

Louis City Circuit Court. — Eon. Charles Claflin Allen, Judge. (1) The agreement between plaintiff and defendant for a division of profits gives this case the aspect of partnership and the account of sales rendered, received by defendant January 12, 1901, being treated as an account stated, as it may be, indicates that this case must be governed by the limitation rule applicable to partnerships and accounts stated.

<p>1. BONDS: Assignment of Bonds Payable to Order: Proof of Ownership by Third Party in Possession: Sufficiency of Evidence. Where bonds are payable to the order of a person named therein the possession of the bonds by a third party is not prima-facie evidence of ownership, but such party is required to prove the assignment and his title. Evidence in this case held sufficient to-establish a prima-facie case of ownership of part of the bonds.</p> <p>2. -: -: -: -. Where it is impossible to obtain better evidence to establish plaintiff’s ownership of bonds; it was held proper, to show the possession of plaintiff, that he purchased the bonds of a broker, that the'former owner who had since died had delivered them to a broker to be sold, that during her lifetime she did not, and since her death her legal representative has not challenged plaintiff’s ownership. Held further, that this showing, under the circumstances, was sufficient to establish prima facie plaintiff’s ownership of the bonds.</p> <p>2. EVIDENCE: Best Evidence Rule. The rule of law which demands the best evidence is qualified to mean the best evidence available to the party producing it.</p> <p>4. APPELLATE PRACTICE: Equity: Questions of Fact. In a proceeding in equity, although the appellate practice will defer largely to the trial court’s findings on matters of fact, they are not bound thereby the same as in actions at law.</p>

<p>1. APPEAL AND ERROR: Motions for New Trial Filed by Both Parties: Appeal Without Merit When One Motion is Sustained. After a verdict in favor of plaintiff, both the plaintiff and defendant filed motions for a new trial. The court sustained plaintiff’s motion but overruled defendant’s motion. Defendant appealed. Held, that there was no merit in the appeal for a new trial having been granted, the case is put in condition so far as the trial court is concerned as if there had never been a trial, and this being what defendant wanted, he was not aggrieved by the action of the trial court in granting a new trial on .plaintiff’s motion.</p> <p>1. PRACTICE: New Trial: Res Adjudicata. When a new trial is granted by a trial court, the rulings of the court in the former trial are in no sense res adjudicata.</p>

— Hon. J. O. Shop* pard, Judge. (1) The trial court correctly ruled that plaintiff’s petition stated a cause of action. Joplin ex rel. v. Hollingshead, 123 Mo. App. 602; Sedalia ex rel. y. Smith, 206 Mo. 346; Joplin ex rel. y. Freeman, 125 Mo. App. 717; R. S. 1899, secs. 5858, 5859, 5860; Sessions Acts of 1901, p. 63.

<p>Appeal from the St. Louis City Circuit Court. — Hon. George H. Shields, Judge.</p> <p>The instruction in the nature of a demurrer to the evidence should have been given. Lancaster v. Ins. Co., 62 Mo. 128; Hancock v. Ins. Co., 62 Mo-. 26; Donaldson v. Lewis, 7 Mo. App. 408; Dickens v. Miller, 12 Mo. App. 408.</p>

Louis City Circuit Court. — Eon. William M. Kinsey, Judge. (1) The defendant’s motion in arrest of judgment should have been sustained on the point that each count of the respondent’s petition is fatally defective in not alleging that the respondent had the possession or the right to the immediate possession of the money charged to have been converted, and therefore fails to state a cause of action; the omission of such an essential aliegation being a defect that is not…

Louis City. — Eon. Walter B. Douglas, Judge. (1) Where a carrier undertakes to transport live stock it, as well as the connecting carriers, are liable for damages resulting from unreasonable delay. Clark y. Railroad, 55 Mo. 167; Patterson y. Railroad, 79 Mo. 296; Tucker y. Railroad, 50 Mo. 385; Griffin v. Railroad, 115 Mo. App. 549; Ratliff v. Railroad, 118 Mo. App. 644; Smith v. Railroad, 112 Mo. App. 610.

Louis City.— Hon. Daniel Gf. Taylor, Judge. If Independence, Iowa, was tbe place of delivery of tbe bay, evidence ought to have been allowed to show that both parties knew tbe bay was intended for tbe St. Louis market, and that St. Louis was tbe natural market for bay from this point and was in contemplation of the parties on entering into tbe contract.. 3 Sutherland on Damages, 1893; Cook Mfg. Co. v. Randall, 62 Iowa, 244; Anderson v. Frank, 45 Mo.

— Eon. J. G. Sheppard, Judge. The demurrer offered by the defendant at the close of plaintiff’s case, as well as the peremptory instruction at the close of all the evidence, should have been given as the evidence shows that the plaintiff’s land was iower at the point where it touches the railroad than the point at Little Raft Slough, where they expect to intersect the slough to carry off the water. Kenny v. Railroad, 69 Mo. App. 569; Collier y. Railroad, 48 Mo.

<p>Appeal from Ripley Circuit Court. — Eon. J, O. Sheppard, Judge.</p> <p>(1) Respondent, having declared on a special contract, can recover only on proving full performance thereof. Warson v. McElroy, 33 Mo. App. 553; Lumber Co. v. Snyder, 65 Mo. App. 568; Hayes v. Bunch, 91 Mo. App. 467; Mohney v. Rudd, 40 Mo. App. 99; West v. Freeman, 76 Mo. App. 96. (2) A litigant is hound by ■the averments of his pleadings. Budd v. Hoffheimer, 52 Mo. 303; Bank v. Westlake, 21 Mo. App. 573; Matson v. Frasier, 48 Mo. App. 302. (3) Under a contract to deliver at Doniphan appellant, and not respondent, had the right to select the particular place of delivery. Still-well v. Bowling, 36 Mo. 311; Morel v. Stearnes, 88 N. Y. Supp. 416. (4) A contract with reference to a particular trade in a particular locality is to be interpreted in the light of the usages of the trade in that locality. Soutier v. Kellerman, 18 Mo. 512; Evans v. Western Co., 118 Mo. 553; Heyworth v. Miller, 174 Mo. 185; Snoqualmi v. Moynihan, 179 Mo. 643; Lillard v. Kentucky Co., 134 Fed. 168; Landry y. Adaline Co., 52 La. Ann. 258, 26 So. 824; Gehl v. Milwaukee Co., 105 Wis. 573, 81 N. W. 666; Williams v. Adams, 3 Sneed (Tenn.) 359. (5) It is error to give instructions submitting to the jury issues of fact of which there is no evidence. Waddingham v. Gamble, 4 Mo. 456; Bergman v. Railroad, 104 Mo. 90; Heinzle v. Railway, 182 Mo. 599; Pandjeris v. Hartman, 196 Mo. 547; Marr v. Bunker, 91 Mo. App. 661; Stephen y. Metzger, 95 Mo. App. 626; Meilv v. Railroad, 107 Mo. App. 466; Chambers v. Railroad, 111' Mo. App. 611.</p>

<p>MUNICIPAL CORPORATIONS: Information: Unlawful Use of Water: Failure of Proof. Tile information filed by the city attorney of a city of the third class charged the defendant with the unlawful turning on and use of the city water which had been shut off from defendant’s premises for nonpayment of rent. There was substantial conflict in the evidence as to whether the water had been shut off for non-payment of rent or at the request of defendant before an indebtedness had accrued. The trial court found that it had not been shut off for non-payment of rent, as charged in the information, and the defendant was acquitted. Held, that this finding will not be disturbed in the appellate court.</p>

<p>1. HUSBAND AND WIFE: Wife May Bind Husband for Her Necessaries. As long as a wife is not separated from her husband by her fault, she may pledge his credit for necessaries for her upport, if he fails to supply them himself; but the wife cannot bind the husband for necessaries furnished the wife’s parents.</p> <p>2. -: -: Conflict of Evidence: Questions of Fact: Appeal and Error. In a suit on an account against a husband for necessaries which plaintiff claimed to have furnished the wife, the evidence was conflicting as to whether plaintiff furnished necessaries to the wife. Held, that this was a question of fact and, there being substantial evidence on both sides, the finding of the trial court will not be disturbed by the appellate court.</p>

— Eon J. O. Sheppar d, Judge. (1) The court erred in sustaining plaintiff’s motion for judgment upon the pleadings. Revised Statutes 1899, secs. 2683, 2774, 2780, 2790, 2828, 4032,. 604; State v. Latshaw, 63 Mo. App. 498; Musser v. Harwood, 23 Mo. App. 495; Bailey v. Winn, 113 Mo. 155; Ex parte Kiburg, 10 Mo. App. 442; State v. Barker, 63 Mo. App. 535; Ex parte Barker, 106 Mo. 551; State v. Butler, 191 Mo. 201; Gibson v. Mozier, 9 Mo. 256; Sterne Co. v. Mason, 16 Mo.

Louis City Circuit Court. — Hon. Robert M. Foster, Judge. The petition in this case states a canse of action and the court was in error when it held the petition bad and sustained the defendant’s motion for judgment on the pleadings. Fulkerson v. Eads, 19 Mo. App. 620; Dulaney v. Sugar Ref. Co., 42 Mo. App. 659; Middleton v. Moore, 36 Mo. App. 627; Fidelity Co. v. Colvin & Jackson, 83 Mo. App. 204.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. Held: at which said meeting a resolution was adopted by the shareholders providing for the purchase of said assets; that a record of said meeting was kept in writing and signed by all the shareholders; that prior to said meeting said corporation had no property at all; that prior to October 25th, the said corporation did not acquire the…

<p>1. NEGLIGENCE: Licensees: Owner of Building: Sufficiency of Evidence. Plaintiff was injured by falling down a stairway, and claimed to bave tripped on a raised or bent metal cleat on a step. The evidence failed to show wbo was the owner of tbe building, or any duty on the part of defendant to fceep the stairway repaired, or that defendant was in possession or claimed to own or control the building. Eeld, that the trial court was correct in sustaining a demurrer to plaintiff’s evidence.</p> <p>2. -: Essential Elements. It is elementary law that in order to constitute actionable negligence three elements are essential: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) A failure of tile defendant to perform that duty; (S) The injury to the plaintiff from such failure of the defendant. It is only when these three elements are brought together that actionable negligence exists.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge.</p>

Louis City Circuit Court. — Eon. Virgil Rule, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. To call a woman a hitch is not actionable-per se, and a fortiori it is not actionable to call her a hen or a cat. Schurick v. Kollman, 50 Ind. 338; Craig v. Pyles, 101 Ky. 593; Blake v. Smith, 19 R. I. 481; Graver v. Norton, 114 la. 47; Shields v. State, 89 G;a. 549; Roby v. Murphy, 27 111.

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. The motion in the case was not preserved in a bill of exceptions, and unless such motion is preserved in a bill of exceptions there is nothing for the appellate court to review. Force v. Patten, 149 Mo. 448; Railroad, v. Carlisle, 94 Mo. 166; State v. Gee, 79 Mo. 313; Esty v. Post, 76 Mo. 411; Corby v. Tracy, 62 Mo. 511; Brown v.Foote, 55 Mo. 178; London v. King, 22 Mo. 336; Tarkio v. Clark, 186 Mo. 293.

Louis City Circuit Court. — Son. Charles Glaflin Allen, Judge. (1) Clonts did .not receive tlie fatal shock from electricity which defendant had negligently or otherwise permitted at all times to pervade its premises, bnt from the invasion of foreign electricity. The shock was dne to a cause of which defendant had no knowledge and over which it had no control. The case is one, not of variance, bnt of a total failure of proof.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) The approval of the plat by Charles Pfeifer, engineer, and the recording of same and the assessment of taxes in accordance with the said plat from 1877 until it was shown by the plaintiff to have been assessed in feet in 1898, was a complete acceptance by the city of the subdivision, if an acceptance was needed, but such acceptance by the city was not necessary to make out a dedication, and, when once dedicated,…

Louis City Circuit Court. — Eon. Robert M. Foster, Judge. (1) It was not the duty of plaintiff to examine the sidewalk for defects. He could act on the presumption that the walk was reasonably safe so long as he conducted himself as a reasonably prudent person would under the circumstances.

<p>1. REAL ESTATE BROKER: Procuring Cause of Sale: Commission: Instructions. In a suit for a real estate agent’s commission, the defense was that the plaintiff had not been the procuring cause of the sale and, to establish this evidence was, introduced tending to show that another real estate firm had been the procuring cause. Held,, that this evidence was proper for the defense, and an instruction to the effect that plaintiff was not entitled to recover, in case the jury found that the other real estate firm was the procuring cause, is approved.</p> <p>2. -: -: -: -. In a suit for a real, estate broker’s commission, it is not sufficient for plaintiff to show that Ms efforts were one of a chain of causes culminating in a sale. He must show that Ms efforts were a procuring or inducing cause. An instruction covering this proposition is approved.</p> <p>3. -: -: -: Deal Closed by Different Agent. It is entirely proper for the owner of real estate to place it in the hands of more than one agent for sale. Where this is done, in the absence of a distinct contract to the contrary, when the sale is made, the commission will belong to the agent whose efforts are the procuring cause of the sale, no matter which one may close the deal.</p> <p>4. -: -: -: Other Agent Authorized to Sell for Less. A real estate owner has the right to place his property in the hands of more than one agent to sell, and he may authorize one agent to sell at a less price than the other.</p> <p>5. INSTRUCTIONS'. Real Estate Broker: Commissions: Procuring Cause of Sale. In a suit for a real estate agent’s commission, where the evidence tended to show that another agent was the procuring cause of the sale, the instructions presenting both theories of the case are examined and approved.</p>

Louis City Circuit Court. — Eon. Matt. O. Reynolds, Judge. (1) Plaintiff’s instruction number 2 is erroneous in that it assumes that plaintiff was injured, and that she suffered mental and physical pain as a result thereof. These matters were disputed issues of fact and should have been submitted hypothetically to the jury. Plummer v. Milan, 70 Mo. App. 598; Evans v. Joplin, 76 Mo. App. 20; Fullerton v. Fordyce, 121 Mo. 1; Freeman v. Street Ry., 95 Mo. App. 94.

Louis City Circuit Court. — Hon. Robert M. Foster, Judge. (T) McReynolds & Co. bad a general standing-agreement with appellant, made prior to January 18, 1906, providing that McReynolds & Co. would deposit with appellant before three o’clock collateral sufficient to secure appellant against tbe overdrafts accruing on that day, and the collateral deposited on January 18, 1906, in compliance with this agreement, was the consideration for said overdraft of that day and hence…

Louis City Circuit Court. — Hon. Virgil Rule, Judge. Instruction No. 2 is had because plaintiffs could not recover for both the damage inflicted on the building and for the loss of rent. Trust Co. v. Bambrick, 149 Mo. 560; Sheehy v. Street Ry., 94 Mo. 574; Martin v. Railroad, 47 Mo. App. 452. ■ (1) The measure of damages arising from a continuing nuisance is the actual damage up to the beginning of the action, without reference to the value of the inheritance.

— Eon. Alfred Page, Judge. The essential elements of fraudulent representations which will entitle a party to recover damages therefor are, first, that the false representations were of materia] matters; second, that he believed them to be true; third, that his reliance on them was an act of ordinary prudence; and, fourth, that they influenced his actions. Foundry Co. v. Heskett, 125 Mo.

— Eon. O. E. Skinker, Judge. (1) The statement states no cause of action against defendant. I Chitty on PI. (14 Am. Ed.), 388. (2) Plaintiff is not entitled to recover as the mother of Woodfin Tice. She was not at the time at the head of the family, and was not liable for the support of Tice and was not entitled to his wages. Plaintiff’s husband, Mr. Franklin, assumed the relation of father to Tice. Eickhoff v. Railroad, 106 Mo. App. 541; Academy v. Bobb, 52 Mo. 357.

<p>1. PLEADING: Sufficiency of Petition: Damages: Waiver of Defects by Answering. In a suit in which plaintiff claimed that he and his entire family contracted smallpox from defendant through his carelessness and negligence, the petition was l one count and several items of damages were enumerated. Held,, that the petition was goód, that the elements of damages were proper and that the defendant, having answered, waived any objections that might have been made to the sufficiency of the petition.</p> <p>2. NEGLIGENCE. It is familiar law that before an action will lie for negligence some duty must be neglected on the part of the person charged.</p> <p>3. -: Spreading Contagious Disease: Duty of Person with Smallpox. Any one afflicted with the disease of smallpox owes to everyone the duty to so conduct himself as not to communicate the disease to them, after he becomes aware that he is afflicted with it. In such ease, he must keep away from other persons, or, should others persons approach him, he should notify them of his disease so they may protect themselves.</p> <p>4. -: -: Instructions: Evidence Failing to Show Value of Wife’s Services. In a suit for damages where plaintiff claims that his wife contracted smallpox from defehdant through his negligence, the evidence failed to show the value of the wife’s services. Held, error to submit this question to the jury by an instruction.</p> <p>5. INSTRUCTIONS: Damages: Submitting Items of Damages Not Shown by Evidence. Where an instruction submits two items of damages to the jury, and there is evidence to sustain one hut not the other, and the jury brings in a general verdict, it ■ being impossible from the evidence to determine how much was allowed for either item, the verdict cannot he permitted to stand.</p> <p>b. -: -: -: When Judgment May be Sustained in Part. In a suit for damages, where several items for damages are alleged and are submitted to the jury and some of them are accurately proven and about which there is no contest, and other items are either not proven at all, or it cannot he determined from the evidence what amount the jury allowed for them, a judgment for the first mentioned items may be permitted to stand, provided a remittitur is entered for the balance of the judgment.</p>

Louis City Circuit Court. — Hon^ Daniel D. Fisher, Judge. (1) The rules and regulations of defendant trust company constituted a valid and binding contract governing the relations between it and the plaintiff. Such rules and regulations are necessary because of the nature of defendant’s business. Kelly v. Bank, 180 N. Y. 176; Sullivan v. Savings Inst., 56 Me. 507; Langdale v. Bank, 121 Ga. 108; Appleby v. Bank, 62 N..

— Eon. J. O. Sheppard, Judge. There being no exception saved to the action of the court in overruling plaintiffs’ motion for a new trial, there is nothing in this court for review. Danforth v. Railroad, 123 Mo. 196; State v. Murray, 126 Mo. 529; State v. Libby, 203 Mo. 598; Mclrvine v. Thompson, 81 Mo. 617; Wilson v. Haxbv, 76 Mo. 315; Parsons v. Clark, 98 Mo. App. 28; Hoffman v. Trust Co., 151 Mo. 520.

— Hon. J. O. Sheppard, Judge. (1) The measure of damages in this case is the cost, of reseeding the land plus the rental value thereof from the time of the destruction of the crop to the time it was replanted. Adam v. Railroad, 122 S. W. 1136; Standley v. Railroad, 121 Mo. App. 537; Jones v. Lake Club, 122 Mo. App. 113; Mattis v. Railroad, 138 Mo. App. 61.

— Eon. J. G. Sheppard, Judge. (1) The petition in this case does not state a cause of action for negligently or wilfully permitting a right of way fence once constructed to become out of repair, but does state a cause of action for failure to fence at all. Deitrich y. Railroad, 89 Mo.

Louis City Circuit Court. — Hon. Geo. H. Shields, Judge. “A general traverse under the code authorizes the introduction of no evidence on the part of the defendant except such as tends directly to disprove some fact alleged in the complaint.

Appealed from the St. Louis City Circuit Court. — Eon. Walter B. Douglas/ Judge. Defendants are liable as trustees and in their representative capacity in an action at law for damages for a breach of the contract alleged in plaintiff's petition. R. S. 1899, sec. 541; Moore v. Stemmons, 94 Mo. App. 480; Bushong v. Taylor, 82 Mo. 670; Colley v. Wilson, 86 Mo. App. 402; Harris v. Wilson, 86 Mo, App. 420; Yoorhis v. Gamble, 6 Mo. App. 4; Yerkes v. Richards, 170 Penn.

Appeal .from- the City of St. Louis Circuit Court. — Hon. Yirgil Buie, Judge. (1) The evidence introduced by plaintiff clearly shows that the death of her husband was caused by his own negligence. The demurrer offered by the defendant at the close of the plaintiff’s case therefore should have been given by the court.

— Hon Jesse A. McDonald, Judge. (1) The court erred in refusing to submit the question of liability on the part of William Suedmeyer, Sr.,and William Suedmeyer, Jr., to the jury. Canfield v. Railroad, 59 Mo. App. 854; Carrigan v. Duenckel, 50 Mo. 104; Perkins v. Railroad, 55 Mo. 201; Eckert v. Transfer Co., 2 Mo. App. 36; Heahl v. Railroad, 119 Mo. 325; Collette v. Rebori, 107 Mo. App. 7Í1; Greer v. Bank, 128 Mo. 559.