Volume 145 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. Matt. G-. Reynolds, Judge. (1) The first ground for sustaining defendant’s motion for a new trial is not good, (a) Because no objection or exception was made to the remarks of the court at the time, (b) Because said remarks on theil face were not prejudicial to defendant. If they were prejudicial to either party it was to the plaintiffs. Nall . v. Eailroad, 97 Mo. 75; Eailway v. North, 31 Mo. App. 355; Walsh v. Drayage Co., 40 Mo.

— Hon. J. G. Sheppard, Judge. (1) The physical facts in this case show that the emigrant car was struck by another car with terrific force sufficient to cause the fire, and the company is liable not only as an insurer but on the ground of negligence, which is charged generally. Powder Mfg. Co. y. Railroad, 101 Mo. App. 442; Mires v. Railroad, 134 Mo. App. 379; Milling Co. r. Railroad, 121 Mo. App. 80.

Louis City Circuit Court. — Hon. Dcuniel Gf. Taylor, Judge. All of the decisions and test books announce the rule that when a party to a contract with concurrent and dependent conditions comes into court and asserts that he is invested with a right of action on such contract, he must allege and prove, either, first, an offer to perform on his part and a mere failure to perform on the part of the other party to the contract.

<p>1. GARNISHMENT: Right of Execution Creditor. In garnishment proceedings, the execution creditor acquires no greater right against the garnishee than was held by the principal debtor. If the defendant could not maintain an action against the garnishee, then the execution creditor of the defendant cannot.</p> <p>2. -: -: Garnishee Must Be Legally Liable to Execution Debtor. The section foreman of a railroad company made a verbal promise to a boarding house keeper that tbe company would guarantee tbe payment of tbe board bills of its section men. Plaintiff obtained a judgment agains-t the boarding bouse keeper and garnisheed tbe railroad company. After the service of garnishment, the company paid tbe boarding house keeper tbe employees’ board as was its custom. Held, that tbe company was not liable on tbe garnishment because there was no contract legally binding the company to pay tbe boarding bouse keeper, tbe oral promise of tbe foreman being without consideration and also void under tbe Statute of Frauds.</p>

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) Since the act or omission of the notary must have accrued while he was yet a notary, it follows that after the notary has been out of office three years no one can sue on the bond. This statute is, therefore, like the one which limited the actions on constables’ bonds to two (now three) years after the expiration of the officer’s term. State ex rel. v. Schaeffer, 12 Mo. App. 276.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. (1) As the only order made by the court to deliver the attacked property was made on February 28, 1898, not only should the value have been fixed on that date, but if interest was recoverable, it could only be from February 28, 1898, and not from the date of giving the bond on May 28, 1896.

— Hon. Alfred Page, Judge. (1) On the whole, the record fails to disclose evidence of probative force sufficient to sustain a verdict. Young v. Rubwedel, 119 Mo. App. 244; Franklin v. Railroad, 188 Mo. 542; Bobl v. Mercantile Co., 114 Mo. App. 439; Morris v. Kansas City, 117 Mo. App. 298. (2) A verdict, unless supported by substantial evidence, should be set aside.. Friesz v. Fallon, 24 Mo. App. 479; Steber v. Davis, 12 Mo.

— Eon. J. C. Sheppard, Judge. (1) The pretended abstract of record fails to show the filing of a bill of exceptions by appellants by an entry of the record proper. This it must do to enable this court to review the testimony in this cause. Cummins y. Eiler, 121 Mo. App. 576; Scott y. Express Co., 116 Mo. App. 174; State ex rel. y. Holland, 116 Mo. App. 845; Watkins v. Green, 116 Mo. App. 593; Kampf v. Transit Co., 102 Mo. App. 314; Hughes y. Henderson, 95 Mo.

■Appeal from St. Louis City Circuit Court. — Hon. Chas. Claflin Allen, Judge. (1) Plaintiffs sue on an alleged joint contract, and such allegation will not support the verdict herein against one of the defendants on his alleged individual undertaking. Davis v. Creamery Assn., 63 Mo. App. 477; Waldhier v. Eailroad, 71 Mo. 514; Faulkner v. Faulkner, 73 Mo. 327; Bagnell Timber Co. v. Eailway, 180 Mo. 420; Van Hoosier v. Dunlap, 117 Mo. App. 529; Meyers v. Eailroad, 120 Mo.

<p>Appeal from. Greene Circuit Court. — Hon. James T. Neville, Judge.</p> <p>(1) The false statements contained in the city engineer’s report to the council, by which excessive charges for flint ledge, lime rock and earth excavation were sought to be created against the property of appellants, and so made by the engineer with full knowledge on the part of the defendant, Huff, of their material falsity, constitute such fraud as to render the taxbills void. Derby v. Donahue, 208 Mo. 684; Mill Co. v. Sugg, 206 Mo. 148; White y. Reitz, 129 Mo. App. 307; Baird v. Grannis, 208 Mo. 426; Brokerage Co. v. Gates, 190 Mo. 391; Hamlin y. Abell, 120 Mo. 203; Bishop v. Seal, 87 Mo. App. 261; Lovelace v. Suter, 93 Mo. App. 429; Chism v. S chipper, 2 L. R. A. 544; Edwards v. Hartshorn, 1 L. R. A. (N. S.) 1050; State ex rel. v. Cartwright, 122 Mo. App. 267; Serrano v. Commission Co., 177 Mo. App. 199. (2) Since it is impossible to separate with even approximate accuracy the illegal overcharges from the taxbills, the whole assessment is necessarily illegal and void. Hoag v. Ward, 186 Mo. 325; Hallett v. Bond Co., 90 Pac. 683. (3) The inspector, Mr. Eddy, was not-properly appointed by the council, was not sworn in as an inspector and was not a city officer. Weisner y. Bank, 106 Mo. App. 668; Nevada y. Eddy, 123 Mo. 540; Hernán v. Farrish, 97 Mo. App. 377'; Akers v. Kolkmever, 97 Mo. App. 520; State ex rel. y. Washburn, 167 Mo. 680; Trenton y. Collier, 68 Mo. App. 492; Wheeler v. Poplar Bluff, 149 Mo. 36.</p> <p>(1) The superficial and crude investigation by some members of the council long after the sewer‘had been completed and filled up was unauthorized and void. Rogers v. Rehard, 122 Mo. App. 44; Board of Education v. Surety Co., 183 Mo. 182; McGregor v. Construction Co., 188 Mo. 622; McCormick v. St. Louis, 166 Mo. 326; Williams y. Railway Co., 112 Mo. 487; Whitworth y. Webb City, 204 Mo. 599; Reilley v. Albany, 112 N. Y. 32; Joplin ex rel. v. Freeman, 125 Mo. App. 722. (2) In this case the eyidence conclusively shows that all the proceedings were regular and that the work was done in substantial compliance with those proceedings, and the court has so found in its judgment rendered in the case. State ex reí. v. Fiad, 26 Mo. App. 503; Dickhaus v. Olderheide, 22. Mo. App. 79; Johnson v. Duer, 115 Mo. 382; Porter v. Paving Co., 214 Mo. 22; Treat v. Chicago, 130 Fed. 444. (3) The trial court deducted the excessive flint allowance, offset it against the accrued interest on the correct amount due on the taxbills and rendered judgment in favor of the defendant contractor for the face of the respective taxbills. In an action at law this finding of facts is conclusive. Platte City v. Paxton, 124 S. W. 531; Fruin v. Meredith, 122 S. W. 1113. (4) The inspector was appointed in the regular way. Nothing to the contrary is shown. He is in no sense a city officer. Hie does not draw an annual salary, nor is he appointed for a definite term. Akers v. Kolkmeyer, 97 Mo. App. 528; Hilgert v. Paving Co., 107 Mo. App. 385; Jones v. Plummer, 137 Mo. App. 337. (5) When the court reduces the amount of taxbills because found to have been issued for too large an amount, the interest or penalty provided in the taxbills must be allowed on the balance of the taxbills after making the proper reductions. Neill v. Ridge, 220 Mo. 256; Neeman v. Smith, 60 Mo. 295; Perkinson v. Schnaake, 108 Mo. App. 261.</p>

— Eon. Thomas J. Beehorn, Judge. Where a landlord has the legal right to the possession of the premises and has made a peaceable entry upon the land, he can maintain an action to enjoin a continuing trespass. 24 Cyc. 1398; Muyford v. Richardson, 6 Allan (Mass.) 77; Curl v. Lowell, 19 Pick. 25; Holly v. Brown, 14 Conn. 269; Alexander v. Hodges, 3 N. W. 417; Taylor on Landlord and Tenant, sec. 296; Tiedeman on Real Property, sec. 693.

<p>1. COLLATERAL SECURITY: Pledge. The delivery of a promissory note as collateral security for the payment of a principal note is a pledge within the meaning of the statute (Sec. 3710, R. S. 1899) declaring void the pledge of any personal property to secure the payment of usurious indebtedness.</p> <p>2. -: -: Debtor’s Obligation. Collateral security is the transfer of incorporeal property such as the obligation of third parties, as additional security for the payment of the principal indebtedness. The transfer of the debtor’s own obligation to the creditor is not collateral security.</p> <p>3. -: Surety. If three payors of a promissory note execute another note to the payee, being joined therein by another person, it makes such second note a collateral security for the first.</p> <p>4. STATUTORY CONSTRUCTION: Personal and Incorporeal Property. Where a statute made void the lien “upon personal property pledged or mortgaged to secure indebtedness” tainted with usury, it was held that the statute was partly remedial and should receive a more liberal construction than if wholly penal, and that the words “personal property” would include incorporeal property, such as collateral notes.</p>

<p>EVIDENCE: Indefiniteness. The burden is on a plaintiff to make out his case by some definite and substantial evidence. And where the evidence in his behalf is of such inconclusive and indefinite character as to leave the court unable to say that he ought to recover, the court is justified in finding for defendant on that ground.</p>

— Hon. John G. Park, Judge. The court erred in refusing defendant’s application .for a continuance, the same showing full compliance with terms of the statutes, section 685, Revised Statutes 1899. McClane v. Harris, 1 Mo. 700; Moore et al. v. McCullough, 6 Mo. 448; Dome v. Broad Water, 9 Mo. 19; Truststall v. Hamilton, 8 Mo. 501; Barnum v. Adams, 31 Mo. 532; Alt. v. Grosclose, 61 Mo. App. 409; Nichols v. Grocer Co., 66 Mo.

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

— Hon. John G. Parh, Judge. (1) The uncontradicted testimony in this case shows the plaintiff was injured at a place where passengers had no right to alight. There was no proof in the case that any employee of defendant knew that plaintiff was going to alight at said point. Therefore defendant’s demurrer to the evidence should have been sustained. McCarty v. Railroad, 108 Mo. App. 600; Corum v. Railroad, 113 Mo. App. 635; Jacobson v. Transit Co., 106 Mo.

Jackson Circuit Court. — Eon. John G. Park, Judge. The court should have peremptorily directed a verdict in defendant’s favor because: (a) There is no evidence of negligence creating liability on the part of defendant. Administrator v. Lime & Cement Co., 113 Mo. App. 330; Armour v: Hahn, 111 U. S. 313; Finlayson v. Mining & Milling Co., 67 Fed. 507; Bridge Co. v. Seeds, 114 Fed. 605.

<p>Appeal from Jackson Circuit Court. — Eon. James E. Blover, Judge.</p> <p>No proofs of death are required where the defendant denies liability in toto. Weber y. A. O. of Pyramids, 104 Mo. App. 730; Gratin y. Insurance Co., 80 N. Y. 281; Covenant Mutual v. Spies, 114 111. 463.</p>

— Eon. A. D. Burnes, Judge. Appellant’s abstract of record fails to show that any bill of exceptions was ever filed in this case. There is nothing before this court to review, since the only error upon which appellant relies is the court’s action in sustaining plaintiff’s motion for new trial. Lafollette v. Thompson, 83 Mo. 199; State v. Eolly, 135 Mo. 677; Finch v. Trust Co., 92 Mo. App. 263; Findley v. Gill, 80 Mo.

— Eon. John G-. Parle, Judge. Section 12, art. 17, of the Kansas City charter, required competition and the ordinance prohibited it and the ordinance is void. Schoenberg v. Field, 95 Mo. App. 241; Curtice v. Schmidt, 202 Mo. 703; Swift v. St. Louis, 180 Mo. 80; Glennon v. Gates, 136 Mo. App. 421; Taylor v. Schroeder, 130 Mo. App. 483.

— Eon. Francis E. Trimble, Judge. (1) Contracts, involving the relation of personal confidence, and such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided, are not transferable. Pritts v. McMurray, 74 Mo. App. 495; Implement Co. v. Iron Works, 129 Mo. 222; Kernochan v. Murray, 111 N. Y. 306.

— Son. Thomas J. Seehorn, Judge. (1) Where the record affirmatively discloses a want of jurisdiction the appointment of an administrator may always he collaterally attacked. 19 Encv. of PI. and Pr., p. 841.

—Hon. R. 8. Ryors, Judge. (1) Plaintiff’s injury was caused wholly and solely ’by his own carelessness and negligence in voluntarily and unnecessarily and contrary to instructions placing himself in contact with the rapidly revolving machinery. Huss v. Bakery Co., 210 Mo. 44; Spiva v. Coal Mining Co., 88 Mo. 68.

— Eon. W. O. Thomas, Judge. The evidence on behalf of plaintiff clearly established a prima-facie case that the automobile was stolen. Dailey v. Black & Dixon, 92 Mo. App. 228; Morrow v. Palace Car Co., 98 Mo. App. 356; State v. Anderson, 186 Mo. 25; Michaels v.Fidelity & Casualty Co., 128 Mo. App. 18; Hadley v. Orchard, 77 Mo. 148; Webster’s Dictionary.

<p>Error to Boone Circuit Court. — Hon. Hide M. Bradley, Special Judge.</p>

— Hon. Louis Hoffman, Judge. (1) The court erred in sustaining the objection of the defendants to the introduction of evidence, under the petition and the opening statement of counsel for plaintiff. The petition states a cause of action. Geismann v. Missouri, etc., Co., 173 Mo. 654; Winkleman v. K. C., etc., Co., 110 Mo.

— Hon. N. D. Thurmond, Judge. The verdict is amply supported by the evidence and the trial court committed no error overruling the demurrer offered by the city at the close of all the evidence in the case. Kroffee v. Springfield, 86 Mo. App. 530 ; Hickman v. Kansas City, 120 Mo. 110; Carson v. Springfield, 53 Mo. App. 289; Schrodt v. St. Joseph, 109 Mo. App. 627; Smith v. Kansas City, 128 Mo. 23.

<p>Appeal from Lafayette Circuit Court. — Eon. Banmel Dams, Judge.</p>

<p>APPELLATE PRACTICE: What Record Must Show. The abstract of the record proper must show the filing of a motion for new trial and a hill of exceptions, as well as that an appeal was granted. The bill of exceptions showing these things will not suffice.</p>

— Hon. Hielo M. Bradley, Judge. (1) A railway company is not bound to be ready for a wholly unprecedented and unforeseeable increase of traffic. Pruitt v. Railway, 62 Mo. 527; Meriwether v. Railroad, 128 Mo. App. 647. (2) If damages accrue upon a verbal contract and a written agreement covering the same shipment waives the previous loss, thereby evincing an intention to cover the whole, in the writing, no action can be maintained for such loss under the verbal contract.

— Eon. G. A. Mosma-n, Judge. (1) There was an entire failure of proof on the part of the plaintiff to sustain the allegations of his reply. When confronted with the certificate of stock, showing on its face to have been issued to defendant on April 5, 1902, plaintiff admitted that the stock was transferred to defendant at that time and that he had entirely forgotten the transactions. His entire defense thereupon failed. Wesley v. Bowers, 58 Mo.

— Eon. A. E. Waller, Judge. (1) Where, as in this case, the undisputed evidence disclosed that numerous answers in his application for membership were false and untrue, it became the duty of the trial court to direct a verdict for the defendant; and the trial court having refused to so direct the jury, the appellate court, will on appeal, reverse said judgment. Reichenbach v. Ellerbe, 115 Mo. 588; Asphalt Co. v. Transit Co., 102 Mo.

— Eon. James E. GoodrichJudge. (1) That the plaintiff’s intestate received the injury to his foot from the fall of the deck sash was amply established by circumstantial evidence. -Hobbs v. Railroad, 113 Mo. App. 126; Yoegeli v. Pickel Co., 56 Mo. App. 678; Yongue v. Railroad, 133 Mo. App. 141; Buesching v. Gas Light Co., 73 Mo. 219; Kelly v. Railroad, 70 Mo. 604; Longree v. Mfg. Co., 120 Mo. App. 494; Duerst v. Stamping Co., 163 Mo. 608; Winkle v. Dry Goods Co., 132 Mo.

— Hon. Wm. B. Teasdale, Judge. (1) Defendant’s first instruction ignores the last chance doctrine. Davis v. Mann, 10 M. & W. 546; Huelsenkamp v. Railroad, 37 Mo. 537. (2) Defendant’s seventh instruction is opposed to every principle of the last chance doctrine. Waddell v. Railroad, 113 Mo. App. 685; Cole v. Railroad, 121 Mo. App. 612; Eppstein v. Railroad, 197 Mo. 737.

Apppeal from Adair Circuit Court. — Hon. Samuel Davis, Judge. There is nothing shown in, the record in this case to bring it within the humanitarian rule. There is nothing to show that deceased was in a position of peril; that he was unconscious of it; that the engineer was aware of his peril or by the exercise of ordinary care could have become aware of it in time to have averted his death.

— Eon. Thomas J. Seek or 11, Judge. (1) Where specific acts of negligence are pleaded, it devolves upon the plaintiff to prove the acts of negligence pleaded, and, if he recover at all, it must be on the specific acts of negligence pleaded, and not otherwise: Detrich v. Railroad, — Mr. App. —; Black v. Railroad, 217 Mo. 672; Beave v. Railroad, 111 S. W. 52; Kennedy v. Railroad, 128 Mo.

— Hon. Hermann Brumbach, Judge. (1) The court erred in overruling the demurrer of defendant offered at the close of plaintiff’s evidence, and at the close of all the testimony, because plaintiff’s own evidence shows she was guilty of contributory negligence. Woodson j-. Kansas City, 123 S. W. 820; Roberts v. Tel.

— Eon, Nich M. . iBradley, Judge. The three banks, plaintiffs, had no authority under their charter powers, or the law, to operate coal mines, and no authority to purchase mines or mining machinery; their acts were ultra vires and void. Schofield v. Banking Co., 98 Fed. 271; Bank v. Hart, 37 Nebr. 197, 55 N. W. 631; Bank v. Kennedy, 167 U. S. 362; Bank v. Railroad, 119 Mo. App. 1.

Jackson Circuit Court. — Hon. Thomas J. Beehorn, Judge. The court committed error in refusing to give the demurrer to the evidence and the instruction in that nature, requested by defendant. Kane v. Railroad, 112 Mo. App. 650; Murphy v. Railroad, 115 Mo. Ill; Swearingen v. Railroad, 221 Mo. 644; George v. Railroad, 125 S. W. Rep. 196; Hager v. Terminal Association, 207 Mo. 302; Slagel v. Lumber Co., 138 Mo. App. 432; Pulley v. Oil Company, 136 Mo.

— Son. John I. Williamson, Special Judge. (1) In an action for breach of contract the measure of damages should not be left to the speculation of the jury. Rhodes v. Holladay, 105 Mo. App. 279; Camp y. Railroad, 94 Mo. App. 272; Sherwood y. Railroad, 132 Mo. 339. (2) The measure of damages in breach of contract cases is fixed definitely as the profit plaintiff would have realized had he been permitted to finish the work. 13 Cyc., p. 51; Speed v. U. S., 8 Wall.

— Eon E. E. Porterfield, Judge. (1) The new matter relied on as a defense, consists merely of conclusions of law; no facts are alleged at all. Bowers v. Smith, 111 Mo. 45; Schiffman v. Schmidt, 154 Mo. 204.

— Eon. John Gr. Park, Judge. (1) If the handhold on the car in question was defective, it was a latent defect which could not have been discovered by an ordinary inspection. Goodrich v. Eailroad, 152 Mo. 231; Clardy v. Eailroad, 73 Mo. 578.

— 3on. L. J. Eastin, Judge. (1) An inference can be drawn only from facts, and that one inference cannot be based on another inference. Swearingen v. Railroad, 120 S. W. 778; Cahill v. Railroad, 205 Mo. 404; Haynie v. Packing Co., 126 Mo. App. 92. (2) An inference cannot even be based on a presumption of law. Looney v. Railroad, 200 U. S. 480. (3) This is a negligence case. The doctrine of res ipsa loquitur does not apply.

— Hon. Thomas J. Seehorn, Judge. (1) It was the duty of the Scarritt Building Company to anticipate danger and to protect persons in the building; because those who invite the public to become their patrons and customers, assure their personal safety, and this duty extends to the tenants of the building and their customers. Such persons have a right to be protected, and it is the special duty of the building company to see to their personal safety. Mauzy v. Kinsel, 19 111.

— Hon. Walter A. Powell, Judge. (1) The best evidence of market value is tbe price realized in actual, open, sales, and “quotations” made by a committee of an exchange which are materially loAver than such actual prices are not evidence of market value. 16 Cyc. .143; 19 Cyc. 1153; 26 Cyc. 819; Parlin & Orendorff Co. v. Boatman, 89 Mo. App. 48; Commission Co. v. Railroad, 64 Mo. App. 593; Fountain v. Railroad, 114 Mo. App. 683; Henderson v. Railroad, 126 Mo.

— Eon. Charles Hoffmem, Judge. (1) Defendant corporation clothed its vice-president and general manager in the city of Sedalia with apparent authority to represent and act for it in negotiating the loan represented by the note sued on, and in executing said note in its name and behalf, and should have known of his habit of making such loans.

— Hon. J. W. Alexander, Judge. (1) Upon the filing of the petition for removal and removal bond in this case, the jurisdiction of the State court ceased ipso facto, and that of the Federal court immediately attached.

<p>1. PRACTICE: Pleadings: Amendment. The action of the trial court in permitting a plaintiff to amend his petition after the arguments of the case by counsel is not erroneous.</p> <p>2. -: -: -. After the amendment by interlineation of a petition for divorce, the petition need not be again verified by the affidavit of the plaintiff.</p> <p>3. -: -: -: Marriage and Divorce: Allegation of Residence. Unless the offense or injury complained of in defendant’s petition was committed within this State, plaintiff’s petition must show that the plaintiff resided within the State one whole year before the filing of the petition. An allegation “that plaintiff is now a resident of Livingston county, Missouri, and has been continuously for the last ten years,” is a compliance with the requirements of the law with reference to such allegation of residence.</p>

<p>1. PRINCIPAL AND SURETY: Bond of Manager to Account for Moneys Received in Business. Where the manager of a business gave a bond to secure his employer an account of all money that might come into his hands as such manager, it is necessary for the plaintiff in a suit on such bond to show that a claimed shortage came within the provisions of the bond. In the absence of such proof, the defendant is entitled to a directed verdict.</p> <p>2. -: -: -. In such a case the-surety would not be liable for collections made by agents not reported to the manager, or for samples or sample cases handed to agents and not returned by them to the manager.</p>

— Hon. B. Gr. Thurman, Judge. The court erred in refusing the defendant the right to contradict the testimony of the witnesses, Poole and Johnson, who testified to hearing a conversation between the appellant and Prank Gallagher, in the latter part of March or first of April, 1908. This was nearly three months before the death of Holmes, and he was not present and knew nothing of this conversation.

<p>1. LANDLORD AND TENANT: Negligence: Promise to Repair. Ordinarily, an action sounding in tort for the recovery of damages for personal injury sustained by the tenant in consequence of the breach of the landlord’s promise to repair, cannot be maintained, even in cases where the promise was a part of the contract of letting. The measure of damages in such cases is the expense incurred by the tenant in the doing of the work the landlord agreed to do, but did not. A breach of a mere contractual duty will not afford a cause of action e® delicto.</p> <p>2. -: -: Exception to the Rule. Where the floor of a! building rented to a tenant is not only defective, but is in a dangerous condition, and its use by the tenant would be a constant menace to his safety, the landlord, having knowledge of this condition, is negligent in failing to make the necessary repairs, and if the tenant, without fault on his part, is injured as the result of such negligence, he has a cause of action.</p> <p>3. -: -: -. There are exceptional cases where the landlord’s failure to perform his promise to repair is more than a mere breach of contract. In such case it is the breach of a duty imposed by the relationship established with his tenant.</p>

<p>Appeal from Caldwell Circuit Court. — Eon. Francis E. Trimble, Judge.</p>

Circuit Court. — Eon. 'William, O. Thomas, Judge. (1) An assignment of error in the overruling of a demurrer to plaintiff’s’ evidence will not be considered unless the whole evidence is set out in haec verija, in the abstract. Nash v. Brick Co., 109 Mo. App. 600; Keithley v. City of Independence, 120 Mo. App. 255; Moore v. Harmes, 123 Mo. App. 34; Plumbing Co. v. Brewing Co., 126 Mo. App. 268; Haggard v. Walker, 111 S. W. 904; ■Goodson v. Railroad, 23 Mo. App. 76.

— Hon. Francis H. Trimble, Judge. (1) Defendant’s instruction in the nature of a demurrer to the evidence tendered at the close of all the evidence in the case should have been given. There was not sufficient evidence of a contract. The law will not imply a contract from loose declarations such as are relied on in this case; neither is there any. evidence even ■approximating the date of any contract. Woods v. Land, 30 Mo.

— Hon. A. D. Burnes, Judge. (1) Our statutes of administration have entirely superseded tbe machinery of the common law concerning the whole doctrine of equitable assets, marshalling of assets in equity, and bill for discovery of assets and accounting. The probate court was vested with power and authority under the statutes to compel an accounting by the executor upon proper complaint of any person interested in the estate. R. S. 1899, secs. 74-78.

— Hon. A. D. Burnes, Judge. (1) Under the allegations of the respondent’s petition the only action he could have against the defendant Frank Carter would be one at law on an implied contract for necessaries furnished an insane person. 16 Am. and Eng. Ency. Law (2 Ed.), 601; Reando v. Misplay, 90 Mo. 251.

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. (1) The court erred in refusing instructions offered by the plaintiff. Hutchinson on Carriers, vol. 1, page 210, paragraph 193; page 211, paragraph 194; Mechem on Sales, sec. 740, p. 664; Mechem on Sales, sec. 788, p. 664; Mechem on Sales, sec. 789, p. 664; Wigton v. Bowley, 130 Mass. 252; Tiedeman on Sales, secs. 85, 332, p. 532, second par.; Benjamin on Sales (7 Ed.), sec. 764, p. 791; sec. 804, par. 789.

— Son. L. B. Woodside, Judge. Declarations of law, number one and two, for plaintiff, given by the court of its own motion, are not law, and should not have been given. A holder, in due course, of commercial papers, blank as to date, may fill in the blank with any day, and has implied authority of both maker and indorser to fill the blank with any date. Story on Prom. Note (7 Ed.), sec. 10 and note on p. 19; Bunker on New Neg. Inst.

— Hon. J. G. Sheppard, Judge. (1) Neither is there any merit in the statement of counsel for respondent that no motion for a new trial having been filed, the errors complained of cannot be reviewed in this court. In order to obtain a review of the action of the trial court in ruling upon a motion which results in a final determination of the matter in controversy without a trial upon the merits, no motion for a new trial is necessary. Aultman v. Daggs, 50 Mo. App. 280.

— Hon, Joseph J. Williams, Judge. (1) Tbe court erred in overruling plaintiff’s motion to dismiss defendant’s appeal, tbe action being a civil action. Billings v. Brown, 106 Mo. App. 243; DeSoto v. Brown, 44 Mo. App. 148; State v. Witzel, 130 Mo. 600; Stevens v. Kansas City, 140 Mo. 460. (2) Tbe court erred in giving tbe jury a peremptory instruction to acquit tbe defendant. State v. Foger, 29 Mo. 416; State v. Parker, 39 Mo. App. 116; State v. Rumsey, 52 Mo. App. 668.

Louis City Circuit Court. — Son. Jesse A. McDonald, Judge. (1) The court erred in overruling appellant’s motion for an-order requiring respondent to elect upon which cause of action, or specification of negligence, he would proceed to trial for the reason that the two causes of action, set up in respondent’s petition, were inconsistent with each other.

Louis City Circuit Court. — Hon., Virgil Buie, Judge. (1) Tbe court erred in refusing to give defendant’s instruction in the nature of a demurrer at the* close of plaintiff’s case. “Before any process shall be* issued in any suit tbe plaintiff shall file with tbe justice- . . . or a statement of tbe account, or of tbe facts constituting tbe cause of action upon which tbe suit' is founded.” R. S. Mo. 1899, sec. 8852. Parties are-bound to set out their name.

Louis City Circuit Court. — Eon. Matt Gf. Reynolds, Judge. (1) When the pleadings in a case present an equitable issue, the appellate court is not bound by the findings of fact made by the chancellor, but it becomes the duty of the appellate court to examine the evidence and make its own findings of fact. Patterson v. Patterson, 200 Mo. 335; Zweigart v. Reed, 119 S. W. 960; Barrie v. Railroad, 119 S. W. 1020.

Louis City Circuit Court. — Son. Matt. Q-. Reynolds, Judge. (1) The general five-year Statute of Limitations, section 4273, Revised Statutes 1899, bars the claim of a widow for an allowance in lieu of provisions. See •cases cited infra. (2) (a) Title to the “grain, meat and other provisions,” granted a widow by section 105, Revised Statutes 1899, does not in all probability pass to her directly by virtue of the husband’s death, but goes first to the administrator.

Louis City Circuit Court. — Hon. Virgil Rule, Judge. (1) The court erred in rejecting the first deed of trust and note offered in evidence by the defendant. McNutt v. Life Ins. Co., 181 Mo. 102; McKnight v. Wimer, 38 Mo. 134. (2) The court erred in not permitting an explanation of the cause of the second sale of the property.

<p>1. LANDLORD AND TENANT: Lease: Agreement by Lessee to Repair: Effect of Making New Lease. In an action by a lessor against a lessee for damages arising from the failure of the ¡After to keep the demised premises in repair, as required by the lease, where, -before the expiration of the lease, it was extended by mutual agreement, the document providing for such extension containing a provision that all the covenants of the original lease should be and remain in full force and effect during the extended term, held, the new agreement bound the lessee to performance of all the covenants contained in the original lease, and against an express agreement of that kind the law will not imply, from the surrender of the original lease, a waiver or discharge of performance of its covenants; and hence the lessee could derive no defense from the new agreement for the breach, either prior or subsequent to its date, of any covenant in the original lease.</p> <p>2. -: -: -: -. The law does not deduce a relinquishment or waiver of liability accrued under a lease from the bare acceptance by the landlord of a surrender of such lease or the granting of a new one to the tenant; but those acts do extinguish the right to demand performance, or damages for non-performance, of covenants which the tenant had further time to perform beyand the date of surrender, and unless performance of covenants of that kind is retained by expression or implication in the new lease, it must be taken as waived.</p> <p>3. -: -: -: Repairs Must be Made as Needed. A covenant in a lease binding the lessee to make repairs from time to time is not satisfied by making repairs at any time before the premises are surrendered to the landlord, but repairs must be made when needed.</p> <p>4. -: -: -: Agreement Runs with Land. A covenant in a lease binding the lessee to make repairs from time to time runs with the land and is binding on the assignee of the lessee.</p> <p>5. -: -: -: Construction of Provisions: Natural Deterioration. 'Where a lease expressly excepted from the obligation to repair, injury due to natural wear and decay, but imposed upon the lessee the duty to repair damage done to the buildings by the negligence of his employees, careless usage “or from any other cause whatever,” the phrase “or from any other cause whatever” must be read in connection with the prior exception of natural wear and decay and must mean any cause other than the latter; and rusted guttering, leaky roof and other like particulars of bad repair did not fall within the covenant to keep in repair, for said covenant did not require the lessee to counteract the effect of natural deterioration.</p> <p>6. -: -: Covenant to Return Premises in as Good Condition as When Received: Runs With Land. A covenant in a lease binding the lessee at the expiration of the term to surrender the premises to the lessor, his heirs, assigns, or successors in the condition received, except natural wear and decay, runs with the land and is binding on the assignee of the lessee.</p> <p>7. -: -: -: Effect of Making New Lease. A lease provided the lessee should, at the expiration nf the term, surrender the demised premises to the lessor in as good condition as when received. Before the expiration of said term, a new lease was made to begin at the expiration of said term, which contained a stipulation requiring the lessee, at the end of the term thereby created, to surrender possession of the premises in as good condition as when received, and which further provided that the lessee should take the premises in their present condition. The buildings had been altered during the term of the first, but before the date of the second, lease. Held, the effect of the second lease was to bind the lessee to return the premises at the end of the term in the altered condition they were in at the date of the second lease, and not the condition they were in at the date of the first lease.</p> <p>8. CONTRACTS: Subsequent Contract Supersedes Prior One. Where a later contract is entered into between the same parties in relation to the same subject-matter as the earlier one, and fully covers the terms of the earlier one, the later contract supersedes the earlier one.</p> <p>9. LANDLORD AND TENANT: Lease: Covenant to Return Premises in as Good Condition as When Received: Effect of Making New Lease: Waiver. A lease for a fixed term bound the lessee to surrender the premises at the expiration of the term in the condition received. A renewal lease executed before the expiration of the term stipulated that the lessee should take the buildings in their present condition and should surrender possession thereof in as good condition as received. The lessee had altered the building before the renewal. Held, that performance of the covenant in the original lease was waived by the execution of the renewal lease, because the lessee or his assignee had until the end of the original term in which to restore the premises to their original condition.</p>

<p>1. MECHANICS’ LIENS: Sufficiency of Statement: Description of Materials: Trade Abbreviations. Tbe use of ordinary trade abbreviations in describing materials set out in a mechanic’s lien account disclosing a demand for lumber and hardware satisfies the requirements of Sec. 4207, Revised Statutes, 1899, where the itemized account is read in connection with the statement preceding and the affidavit following it, in both of which it was made clear that whatever materials were furnished, according to the itemized account, were of a character for which a lien is given.</p> <p>2. -: -: -: -: Parol Evidence to Explain, ii necessary, evidence aliunde may be resorted to at the trial, to explain the meaning of the trade abbreviations used in 'a mechanic’s lien itemized statement of account.</p>

Louis City Circuit Court. — Eon. Virgil Buie, Judge. (1) Under this contract, on the face of the stock, and the Indiana statute, this certificate of stock is an interest-bearing debenture of the company, redeemable by it, and the agreement to pay interest or dividends creates an absolute debt, payable whether anything is earned by this company or not, or whether any dividends are declared by the directors. 10 Cyc., p. 574; Williams v. Parker, 136 Mass. 204; Burt y. Battle,…

<p>1. CONTRACTS: Consideration: Mutual Promises. Plaintiff, a subcontractor, contracted to plaster the interior of a schoolhouse, agreeing to do a first-class job and to guarantee the plastering upon the ceiling would remain in place two years. The plaster, which was manufactured by defendant, was put upon the ceiling in a workman-like manner, but, shortly after being put on, it began to blister and fall off. Walker, one of defendant’s officers, was called in to examine the work, and he told plaintiff to replaster the ceilings at once, and send the bill to him, and he would pay it. Nothing was said about what materials should be used in replastering, and the same kind was used. Held, it is a fair inference that plaintiff assented to Walker’s proposal for him to replaster at Walker’s expense, and if this be true, there were mutual promises which would constitute a contract binding on plaintiff and Walker, or defendant, whom the latter represented.</p> <p>2. -: -: Unilateral Contracts: Performance. Though the contract was unilateral in the first instance, it became binding on defendant when plaintiff did the work and incurred expenses under it.</p> <p>3. .-: -: Restricting Original Obligation. Plaintiff’s original contract did not require him to use defendant’s cement in replastering, but likely he and Walker understood the re-plastering was to be done with that cement, and if this were true his obligation was more restricted and onerous than the original contract, and this would furnish a consideration.</p> <p>4'. -: -: Commercial Advantage. While, from a commercial point of view, defendant had a strong motive to get the work done over without the faults of the plastering becoming generally known, as would happen if there was a prolonged dispute or litigation, it' cannot he said this motive amounted to a consideration, for the financial benefit defendant would receive from having the subject dropped would be indirect and not accrue from the agreement.</p> <p>5. -; •-; Detriment to Promisee-. Though- plaintiff under his original contract was bound to replaster, and though he was not bound by his agreement with Walker to use defendant’s cement, Walker’s conduct in cutting off further investigation as to where the responsibility lay for the failure of the plaster to adhere, and directing plaintiff to replaster at once, at least caused plaintiff to waive a further examination into his obligation and responsibility and further deliberation upon whether he would replaster with defendant’s cement or some other, and hence was a detriment to plaintiff and as such constituted a valid consideration for the contract.</p>

<p>Appeal from St. Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge.</p> <p>(1) The remarks of tbe court when defendant offered to read from the hill of exceptions a portion of the testimony of the witness Smidt on the former trial were highly improper and were prejudicial. State y. Stein, 79 Mo. 330; Schlicker v. Gordon, 19 Mo. App. 479; Kreibohm v. Yancey, 154 Mo. 67; (2) Defendant should have been permitted to read to the jury the letter to plaintiff’s counsel in regard to removing the paper from the back of the receipt. (3) The first of defendant’s refused instructions should have been given. 1 R. S. 1899, sec. 4652. (4) Defendant’s second and third refused instructions should have been given. Cunningham v. Batchelder, 32 Me. 316; Cash v. Freeman, 35 Me. 483; Gibson v. Hanna, 12 Mo. 162; Buffing-ton v. Land Co., 25 Mo. App. 492.</p> <p>(1) First, appellant was an incompetent witness to testify about any contract or conversation he had with deceased and as maker of the note cannot testify to the discharge thereof in a suit against himself by the administrator. Sec. 4642, R. S. 1899; Kaho v. King, 19 Mo. App. 45; Lightner’s Adm. v. Greeg, 61 Mo. App. 650; Teats v. Flanders, 118 Mo. 660. (2) The court was correct in not permitting appellant’s counsel to read to the jury the letter directed to respondent’s counsel before trial. Nulsen v. Priesmeyer, 30 Mo. App. 126; Anslyn v. Franke, 11 Mo. App. 598; Hutchins v. Railroad, 99 Mo. App. 549; Mosby v. Commission Co., 91 Mo. App. 500. (3) The contentions of error claimed by appellant are not material to the merits of the action, therefore, judgment should be affirmed. Sec. 865, R. S. 1899; Water :& Light Co. v. Lamar, 140 Mo. 146; Commission Co', v. Block, 130 Mo. 669.</p> <p>Statement. — This is action by the administrator of Edward Doyle against defendant, appellant here, on a note which, as set out in the petition, reads as follows:</p> <p>“St. Louis, Missouri, January 1st, 1896.</p> <p>$1830.00</p> <p>Three years after date I promise to pay to Edward Doyle or order eighteen hundred and thirty and no hundred dollars for value received with interest from date at the rate of seven per cent, per annum, until paid, and I agree to pay the same at maturity and same is due to Edward Doyle only.</p> <p>J. Y. S. Barrett.”</p> <p>The answer, after denying each and every allegation in the petition, sets out the note, admits the execution and delivery of it to Doyle, avers that the note was prepared on a printed blank form and the words, “date”, “promise to pay”, “or order”, were printed as part of the blank form, and the words, “and the same is due to Edward Doyle only,” were written by defendant; and avers that long prior to the maturity of the note, he fully paid it to Doyle as well as paying to him, Doyle, all other notes he had ever made to him; and that Doyle, at the time of the payment of the note, was in possession of it and that this is the only note hearing date January 1, 1896 that defendant ever made or delivered to Doyle. The answer further avers that defendant did not execute or deliver to Doyle the note described in the petition or any note of that date, save that set forth in his answer. This answer was sworn to by defendant. The reply is a general denial of the new matter.</p> <p>At the trial, the plaintiff proved that he was the administrator of the estate of Doyle and as such had duly qualified and taken possession of the assets of the estate; he also introduced evidence tending to prove that the note in suit had come into his possession as assets of the estate; that he had endeavored to collect it from defendant; that defendant had claimed that he had paid it. Plaintiff also introduced evidence tending to show how and when and by whom the note had been found among the effects of the decedent or had come to the hands of the parties who had turned it over to him, and also tending to show that defendant had made statements and had done acts in connection with the note which it is claimed tended to contradict defendant’s denial of the indebtedness on the note, and introducing the note in evidence, rested.</p> <p>On part of defendant evidence was introduced tending to sustain his claim, that he had paid the note and that he owed decedent nothing on account of it, among the other evidence introduced by defendant being the receipts, which are set out in 115 Mo. App. 324, where the decision of this court is reported when the case was here on a former appeal.</p> <p>The receipts now particularly relied on by defendant are as follows:</p> <p>“Received of J. Y. S. Barrett, $1235.85 for board, lodging and money advanced Oct. 8, 1900; Nov. 8. 1897.</p> <p>Edward Doyle.”</p> <p>“Received of J. Y. S. Barrett the amount of money advanced to him by me in full Nov. 8, 1897.</p> <p>Edward Doyle.”</p> <p>The defendant at the trial was excluded from testifying as to transactions between himself and the decedent during the lifetime of the latter, his own testimony being confined to the narration of acts since the death of the decedent and to his transactions with the administrator and others after the death of the decedent. The witness Smidt, again testifying, the error in the admission of part of his testimony for which error, in part, the judgment was before reversed, was avoided both during this trial and by instructions. During the progress of the trial, counsel for defendant offered in evidence a portion of the testimony of this witness Smidt which had been preserved in the bill of exceptions. On the court asking him what he offered it for, counsel said it was offered as contradictory of the testimony of the witness given at the present trial. Counsel for plaintiff objected to it unless all of this witness’ testimony was read. Whereupon the court said:</p> <p>“You didn’t read any part of it to him and ask him whether he made the statement or not. You asked him in a general way. You should have treated the witness fairly by reading the statement claimed he had made contradictory to his present statement. Let me see the part you want to read. The proper way and the fair way is for you to read the statement and ask him whether he made that statement or not.”</p> <p>Counsel for defendant excepted to the remarks of-the court; not however assigning any ground for the exception. Whereupon counsel handed the transcript of the testimony to the court with the pages marked which he proposed reading and they were thereupon read and the witness examined concerning what were claimed to be discrepancies between his testimony there given and what he had given in the present trial. Counsel for defendant also offered to read in evidence a letter which he had served on counsel for plaintiff, containing an offer by counsel concerning the examination of the back of some of the receips given in evidence, there being some question as to whether paper had been pasted over the hack of the original in an effort to conceal or cover up whatever was on the back. The court excluded it, to which defendant excepted. Much evidence, pro and con, was introduced in an effort to meet the issue as to whether the receipts in evidence covered the money evidenced by the note.</p> <p>At'the instance of plaintiff, the court gave three instructions, in the first of which the jury were told that the suit was on a note, the court setting the note out in the instruction as it appears in the petition. It also told, the jury that the defendant denies every allegation in the petition, hut in answering further, also admits that he executed and delivered to the decedent a promissory note in words as follows:</p> <p>“$1830.00</p> <p>St. Louis, Missouri, January 1st, 1896..</p> <p>Three years after date I promise to pay to Edward Doyle, or order, eighteen hundred and thirty, no hundred dollars, for value received, with interest from date at the rate of seven per cent per annum, until paid, and I agree to pay the sum at maturity and the same is due to Edward Doyle only.</p> <p>J. Y. S. Barrett.”</p> <p>The instruction then proceeds:</p> <p>“And defendant admits that the note last referred to was the only note bearing date of January 1, 1896, that defendant ever made and delivered to the decedent.”</p> <p>The second instruction was to the effect that it had been proved plaintiff was the person entitled to sue as administrator of the decedent and that he was now such administrator. By the third instruction the jury was told that if it believed from the evidence that defendant executed and delivered to decedent the note sued on and further believed from the evidence that the note has not been paid, the jury must find for plaintiff for the value of the note, $1830; but if the jury finds the note had been partly paid, that it would find for plaintiff only in such an amount as the jury finds from the evidence remains unpaid and if the jury further finds that the interest on the note or any part thereof has not been paid, it must find for plaintiff in such further amount as it finds from the evidence is due on account of interest.</p> <p>Of its own motion the court instruted the jury that defendant claims the note has been paid and fully satisfied and that the burden of establishing by a preponderance of the evidence that such payment has been made is upon the defendant. In the second instruction given by the court of its own motion, the jury were instructed as to the meaning of the term “burden of proof.” In the third the usual instruction as to the credibility of witnesses was given, while in the fourth instruction the jury were advised that nine of their number had power to return a verdict. Exceptions were duly saved by defendant to the giving of all these instructions.</p> <p>At the request of defendant the court gave three instructions. The first is to the effect that if the jury believed from the evidence that the note offered in evidence on the trial and interest thereon was paid, they would find for the defendant. By the second instruction they were told that the note offered in evidence is not a negotiable note, and by the third they were told that any statements of the witness Smidt while testifying upon the trial of the cause as to what was told him by Edward Doyle, deceased, are to be entirely disregarded by the jury as evidence in the case, in arriving at their verdict.</p> <p>Defendant also asked the court for three instructions substantially as folloAvs: First, that under the law the defendant could not testify in this action to any transaction between him and the deceased relating to the note sued on or its payment, unless the plaintiff had consented that he might do so, and that the failure of defendant to explain any matter connected with the note or its alleged payment, is not to be considered against him in arriving at a verdict. In the second instruction, the court was asked to charge that if the jury found from the evidence that the receipts offered in evidence as being signed by the deceased were in fact signed by him “then in the absence of sufficient rebutting proof, it is the duty of the jury to find that deceased received from the defendant on November 8, 1897, the sum of $1,285.85, and also all the money which, up to that time said Edward Doyle had advanced to defendant and that plaintiff cannot recover in this action; and they are further instructed that rebutting proof, sufficient to overcome those receipts must be clear and convincing and not rest upon mere impressions.” The third instruction asked and refused was to the effect that plaintiff claims the note sued on is wholly unpaid and defendant claims that it was paid to the decedent “and produces in support of his contention receipts claimed to have been signed by said Edward Doyle, and the jury were further instructed that if they find from the evidence that the signature of those receipts is that of said Edward Doyle, then those receipts are a complete defense to plaintiff’s claim unless they are overcome by proof that the payments acknowledged by those receipts were not in fact made; and the proof for that purpose must be clear and convincing and not resting on mere surmises.” The court refused the'se instructions and defendant duly excepted.</p> <p>Further controversy • arose over remarks made by counsel for plaintiff in closing the case to the jury, but no request appears to have been made to the court to correct them nor to check counsel and no exception saved of record.</p> <p>There was a verdict for plaintiff for $3023.78. Motion for new trial was duly filed, overruled, exception saved and an appeal duly perfected to this court by defendant.</p>

<p>NEW TRIAL: Refusal to Require Answer to be Made More Specifier Allegations Attacked Eliminated by Court’s Finding. Plaintiff’s motion for new trial, on the ground she had been deprived of an opportunity to meet certain testimony by the refusal of the court to require defendant to make certain allegations in his answer more specific, was properly denied, the point to which the testimony might have been relevant having been eliminated from the case by the finding of the court.</p>

<p>1. PARTNERSHIP: Compromise of Disputed Matters: Adjustment- and Settlement of Accounts: Setting Aside Compromise: Mistake. Where the accounts of a partnership were examined, the-property inventoried, liabilities deducted, and a balance struck' between the partners, and one of the partners was informed his’ share was sixty dollars, and he thereupon offered to take-one hundred dollars and “he would walk out,” which offer was accepted by the other partners, such offer and acceptance-come more closely under the domain of a compromise of disputed matters than a case of intended settlement and adjustment of accounts between the parties; and such compromise-' will not be set aside, although there may have been a mistake in striking the balance.</p> <p>2. ACCORD AND SATISFACTION: Impeachment: Mistake. A compromise will not be disturbed for any ordinary mistake either of law or fact, in the absence of conduct otherwise inequitable.</p> <p>3. EQUITY: Rescission: Necessity of Returning Consideration-It is a rule, without exception, that one coming into a court of equity must do equity, and before he can have a transaction undone, he must return all that he received on account of it.</p> <p>4. -: -: -: Pleading: Prayer for General Relief and Offer to do -Equity. A general prayer for relief and offer to do equity is sufficient, in order to invoke the powers of equity to set aside an inequitable transaction, without specifically pleading a tender of the money received thereunder, as the court will require complainant to put the other party in statu quo as the price of its decree.</p>

<p>1. CORPORATIONS: Transfer of Property in Good Faith: Effect on Creditors. While, as a general rule, the assets of a corporation are a trust fund for the benefit of its creditors, yet a corporation may dispose of the whole or any part of its assets for value and in good faith, and the purchaser takes such assets discharged of any trust in favor of the creditors of the selling corporation.</p> <p>■2. -: -: Creditors’ Bill: Evidence Reviewed. On a review of the evidence, it is held that a corporation transferring-its assets to another corporation did so in good faith and for an adequate consideration, and that there was neither fraud in fact, fraudulent intent nor constructive fraud shown, so as to entitle plaintiff, a' creditor of the former, to recover in an action against the latter, in the nature of a creditor’s bill.</p> <p>3. -:-: -: Lien of Judgment, Pending Appeal. The fact that the claim of a creditor of a corporation had not been liquidated when the debtor corporation transferred its-assets to another corporation would not render the claim the less a lien on the assets in the hands of the other corporation, if they were not transferred in good faith and for an adequate-consideration.</p> <p>4. -: -: -: Equitable Title In Transferee;" Legal Title in Debtor. Where a corporation undertook in good faith, and for an adequate consideration, to transfer all its assets to another corporation, but by mistake a city lot belonging to-it was omitted from the conveyance of its real property, the equitable title to the lot passed to the transferee, and, in an equitable action by the creditor of the transferrer against the transferee to subject the conveyed assets to satisfaction of the debt, the creditor could not assert a right, based upon the fact-that the legal title had not been conveyed.</p>

Louis ' City Circuit Court. — Eon. Virgil Rule, Judge. (1) The statement filed before the justice is an insufficient statement of a cause of action in a justice of the peace court. Nutter v. Houston, 32 Mo. App. 451; Butts y. Phelps, 79 Mo. App. 302. (2) The acceptance of the check by respondent was an accord, and satisfaction. 1 Am. and Eng. Ency. Law and P. (new series), p. 629; Lightfoot v. Hurd, 113 Mo. App. 612.

Louis City Circuit Court. — Hon. Bobt. M. Foster, Judge. (1) Recognition and ratification by a party of an act previously performed by one who assumes to act as Ms agent are tantamount to its antecedent authorization. Flesh v. Lindsay, 115 Mo. 1; Sharp v. Knox, 48 Mo. App. 169; Cummings v. Head, 49 Mo.

Louis City Circuit Court. — Hon. Daniel Gr. Taylor, Judge. (1) It being conceded that default was made on the whole bills, and that no part of them was ever paid, it is clear that the bills were not paid in installments, withing the meaning of the charter, and the lien thereof consequently terminated within two years after the date of the bills, six days before the suit was instituted. Charter, city of St. Louis, art. VI., sec. 25.

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. ■ (1) To sustain this statutory action for support and maintenance two things must concur: Abandonment by the husband a failure to support. Youngs v. Youngs, 78 Mo. App. 228.

— Hon. B. 8. Byors, Judge. (1) Appellants Bertha Mueller and John Grunker, and respondents August Grunker and A.nna Grunker, being joint beneficiaries of the.will of their father, Anton Grunker, it is inequitable that one of them having received (though wrongfully) more than his or her share of the personal estate of Anton Grunker, should be allowed an equal sháre of the real estate without having the same charged with such contribution as is necessary to the equality of the…

— Hon. James D. - Barnett, Judge. (1) The proof shows that the payment by plaintiffs was voluntary, and they had knowledge of all the facts, and were not misled by any fraud. State ex rel. v. Stonestreet, 92 Mo. App. 220; Teasdale v. Stoller, 133 Mo. 651; Jefferson County v. Hawkins, 23 Florida 231; Baldwin v. Foss, 71 Iowa 389; Redmond v. Mayor, 125 N. Y. 632.

Howell Circuit Court. — Eon. W. N. Evans, Judge. (1) Under the evidence in this cause, plaintiff was not entitled to recover. And the court erred in refusing peremptory instruction requested hy defendants. McKinley v. Williams, 74 Fed. 95; Mechem on Agency, 300; Jewelry Co. v. Bertig, 81 Mo. App. 398; Elec. Co. v. Bry, 88 Mo. App. 136; Bank v. Haywood, 62 Mo. App. 550; Trust Co. v. York, 81 Mo. App. 342; Goode v. St. Louis, 113 M'o. 257; McMannus v. Gregory, 16 Mo.

Louis City Circuit Court. — Eon. Matt. Cr. Reynolds, Judge. (1) Mesker’s mistake or . confusion that both garnishments originated upon judgments in favor of Leo Hadley and his arrangement with Hadley as to the disposition of both, was such an uncontrollable accident or mistake, unmixed with any negligence on his part, as to warrant the interference of a court of equity as against the judgment rendered, especially where it is admitted, as in this case, that Mesker owed…

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. (1) In the absence of an express undertaking to that effect, a landlord is not hound to keep the demised premises in tenantable repair, and it is no defense to a suit for rent agreed upon that the building had become dilapidated and unsafe so that tenant was compelled to leave it. Burnes v. Fuchs, 28 M'o. App. 279; Eoberts v. Cottey, 100 Mo. App. 503; Johnson v. Snow, 102 Mo. App. 241; Eutledge v. Quinlan, 127 Mo.

Louis City Circuit Court. — Hon~. Geo. H. Williams, Judge. (1) A materialman can have a mechanic’s' lien; only when the said materials are furnished in pursuance’ to a contract with the owner or his contractor. And the contract meant is the one between the owner and the-contractor and not the one between the contractor and: the materialman. There can be no materialman’s lien1 unless there is a contract between the owner of the lot and the contractor. Kline v. Perry, 50 Mo.

<p>Appeal from St. Louis Court of Criminal Correction.— Hon. D. D. Fisher, Judge.</p>

<p>JURISDICTION: Supreme Court: Constitutional Question. The petition, which alleged that a building loan was made to decedent at an usurious premium, pursuant to a by-law of defendant company, as authorized by a statute, and that the by-law contravened a constitutional provision, and sought bo recover the usurious interest paid, alleged that the statute was unconstitutional and raised a constitutional question, so that the Court of Appeals did not have jurisdiction to determine such question.</p>

Louis City Circuit Court. — Hon. Wto. M. Kinsey, Judge. (1) (a) The cause of action declared upon is not bottomed npon any statute. Therefore, proof of specific acts of negligence on the part of defendant was a prerequisite to a recovery by plaintiff. Catron v. Nichols, 81 Mo. 80; Coffman v. McCauslin, ■ 70 Mo. App. 34; Smith v. Railroad, 37 Mo. 287.

Louis City Circuit Court. — Now. Geo. N. Shields, Judge. (1) On a demurrer to the evidence, every presumption will be indulged in favor of the plaintiff. (2) Tbe defendant, having placed the obstruction on the landing, cannot escape liability by transferring the possession of it to another. Even inability to remove the obstruction after delivery to another is no excuse.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. Statement. — Plaintiff commenced this suit, and after filing several petitions, stood on this as his cause of action, it being his second amended petition: “That heretofore, to-wit, on the first day of September, 1904, he in conjunction with R. H. Kobusch, Charles H. Thuner, Wm.