Volume 146 — Missouri Appeal Reports

Louis City Circuit Court. — Hon* Daniel Gr. Taylor, Judge. (1) The court erred in refusing to dismiss plaintiff’s petition because parts of three amended petitions had been stricken out, by reason whereof, the court lost jurisdiction to proceed further in the case; Munford y. Keet has been overruled. Sidway y. Land ,& Live Stock Co., 197 Mo. 359; Spurlock v. Railroad, 93 Mo. 13; Beardslee v. Morgner, 73 Mo. 22.

Louis County Circuit Court. — Eon. J. W. McElkinney, Judge. (1) The mechanic’s lien claim is void because it describes and demands a lien on more than one acre of land. It should not have been received in evidence. R. S. 1899, sec. 4203; Perkins v. Boyd (Colo.), 86 Pac. 1045; Poppert v. Wright, 52 Mo. App. 576; Engleman v. Graves, 47 Mo. 348; Williams v. Porter, 51 Mo. 441; Wright v. Beardsley, 69 Mo. 548; Ranson v. Sheehan, 78 Mo. 668; Mayes v. Murphy, 93 Mo.

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. (1) Instruction number 1, given by tbe court, submitted to tbe jury tbe violation of tbe speed ordinance as a basis of recovery. This was erroneous, as there was no evidence that tbe automobile, at the time of tbe accident, was running in excess of eight miles per hour, tbe ordinance speed. All tbe defendants’ witnesses placed it under this speed.

<p>Application for Cost of Printing.</p>

<p>APPELLATE PRACTICE: Allowance for Printing Abstract: Application to be Filed, When. Where a judgment of the trial court was reversed, and at a subsequent term of this court, appellant filed a motion to tax the costs of printing the abstract of the record'against respondent, this court was without jurisdiction of the cause, and said motion should be overruled.</p>

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) The defendant not having rejected the machine within a reasonable time after receipt is liable for the contract price less any partial failure of consideration if any shown. Keystone Imp. Co. v. Leonard, 40 Mo. App. 477; Voss v. Maguire, 18 M'o. App. 477. (2) The burden was on the defendant to sLloav a breach of warranty and therefore plaintiff’s instruction was erroneously refused.

Louis City Circuit Court. — Hon. Geo. H. Shields, Judge. The liability of appellants began with the date of their bond, (a) Because the undertaking written in this bond referred only to the future conduct of the principal Brady. Appellants, when they signed this bond May 13, 1902, promised that Brady should thereafter perform the duties required of him, and that he should faithfully account for all monies that might come into his hands during the continuance of his office.

Louis City Circuit Court. — Son. Roht. M. Foster, Judge. (1) The two papers, i. e., the lease by which the; advertising company agreed to furnish advertising for the use and benefit of the Star Publishing Company, and the contract dated March 31, 1905, to furnish advertising for the same corporation at the rate of $633.33 per month, are one contract and should be construed together.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Defendants’ instruction for non-suit at tbe close of tbe plaintiff’s case, and at tbe close of tbe whole -case, should have been given. No one can base a right of recovery on bis own fault. As to proximate cause: (a) Tbe youth of plaintiff can not supply tbe place of ■'negligence on tbe part of tbe defendants.

Louis City Circuit Court. — Eon. Matt. Gf. Reynolds, Judge. (1) Where there is no evidence tending to prove the constitutive facts set up by the p'arty who sustains the burden of proof, the court is hound on request to direct the jury to return a verdict for the opposite party. 2 Thompson on Trials (1889 Ed.), sec. 2245; McQuillin on Instructions to Juries in Missouri Civil Oases, sec.* 168; Russell v. Barcroft, 1 Mo. 663; Rucker v. Eddings, 7 Mo. 116; Harris v. Woody, 9 Mo.…

<p>APPELLATE PRACTICE: Equity: Findings by Trial Court. While in an equity case, the appellate court is not hound by the findings of the trial court, such findings are always very persuasive and will not be disturbed on slight or 'doubtful grounds.</p>

Louis City Circuit Court. — Hon. Geo. E. Shields, Judge. (1) The respondent made no case under his pleadings, and appellant’s demurrer to the evidence, offered both at the close of plaintiff’s case, and at the close of the entire case, should have been given, and the court erred in refusing the same and as plaintiff on this the third trial has failed to make a case and cannot improve on it, this cause should be reversed without remanding.

Louis City Circuit Court. — Hon. Robt. M. Foster, Judge. (1) Instructiou number 1 for plaintiff purports to cover the entire case and directs a verdict for plaintiff on the statement of facts therein, if found to be true. Such an instruction must cover the case as made by the pleadings and evidence, and must not ignore the defenses, as done in said instruction number 1. Hoffman v. Parry, 23 Mo. App. 20; Flynn v. Union Bridge Co., 42 Mo.

Louis City Circuit Court. — Eon. George E. Williams, Judge. (1) There was no evidence that plaintiff was the procuring cause of the offer made by Mrs. Preasier, through her agent, to the defendant, and the judgment of the trial court should, therefore, have been for defendant. 19 Cyc. 257, and cases cited; Pollard v. Banks, 67 Mo. App. 187; Henkle v. Dunn, 97 Mo. App. 671; Campbell v. Yanstone, 73 Mo. App. 84; Crowley v. Somerville, 70 Mo.

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. (1) The judgment must fail for want of proof to support the material allegations of the petition. (2) Even if this were not true, the judgment must fail for want of proof of damages. (1) All the facts being before the court, the court will determine as a matter of law whether or not defendant was guilty of a breach of covenant. Knapp Co. v. Standley, 45 Mo. App. 264.

Louis City Circuit Court. — Eon. Rol)t. M. Foster, Judge. (1) Plaintiff did not show a performance on his part of the contract sued on, and there could have been no recovery under the contract. Meyer v. Christopher, 176 M'o. 594; Clough v. Meat Co., 112 Mo. App. 185; Eyermon v. Association, 61 Mo. 489; Mfg. Co. v. School Dist., 54 Mo. App. 371; West v. Freeman, 76 Mo. App. 96; ELayes v. Burch, 91 Mo. App. 467.

Louis City Circuit Court. — Eon. Jas. E. 'Withrow, Judge. (1) Defendant did not file any written answer. Any lawful defense which the facts might develop was available to Mm.” Holmes v. Leadbetter, 95 Mo. App. 425. (2) In courts of record, contributory negligence is an affirmative defense and must be pleaded.

Louis City Circuit Court. — Hon. Matt. Gr. Reynolds, Judge. (1) It is claimed by respondents that, at the date notice was given the tenants to vacate, the lease was cancelled and a new contract made, which new contract relieved the surety, Powell.

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

Louis City Circuit Court. — Son. Matt. G. Reynolds, Judge. (1) Error of tbe court in instructing tbe jury that if they believe from tbe evidence that in pursuance of the contract pleaded the plaintiff: entered into the employment of the defendant as general manager and treasurer and continued until the 8th day of July, 1907, to discharge all the duties of general manager and treasurer, and that the defendant thereupon, without just cause, discharged him from said employment,…

Louis City Circuit Court. — Hon. Wm. M. Kinsey_, Judge. (1) The receipt given constituted an agreement of the defendant to deliver the car of goods to the American Storage & Moving Company at Fortieth and Princeton avenue, Chicago, Illinois. Wohl v. Holt, 26 W^-703; Marshall & Michel Grain Co. v. Railroad, 176 Mo. 480; Marshall & An ties v. Railroad, 74 Mo. App. 81; Sash & Door Co. v. Railroad, 177 Mo. 641; Grain Co. v. Railroad, 120 Mo.

Louis City Circuit Court. — Hon. Matt. G-. Reynolds, Judge. (1) Tbe trial court erred in excluding the counterclaim, because an action lies for malicious prosecution of a civil action. Cooper v. Scyoc, 104 Mo. App. 414; Brady v. Erwin, 48 Mo. 533; Boogher v. Life Assn., 75 Mo. 319.

Louis City Circuit Court. — Eon. Virgil Rule, Judge. (1) There was a fatal variance between the allegations and the proof in that the petition alleged the case in tort, whereas the proof showed nothing more than a breach of warranty (express or implied). Glenn v. Hill, 210 Mo. 299. (2) The court erred in giving the first instruction for plaintiffs. Brown v. Marshall, 47 Mich. 576; Akers v. Over beck, 18 Miss. 198; Howes v. Rose, 13 Ind. App. 674; Hackett v. Pratt, 52 111.

— Hon. B. G. Thurman, Judge. (1) Tlie court erred in rendering judgment against the defendant because under the petition and the agreed statement of facts, which was all the evidence, no cause of action is alleged or stated in this, that it appears that there was no relation of contract or legal obligation between plaintiff and defendant. State ex rel. v. Loomis, 88 Mo. App. 507; State v. Railroad, 125 Mo. 615; Lewis v. Land Co., 124 Mo.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) It was a prejudicial error to deny the motion of Sophia Furstenfeld to he made a party defendant to this action. She claimed an interest in the controversy and was therefore a necessary party thereto. E. S. 1899, sec. 518; 1 Ann. Statutes, 581.

— Mon. L. B. Wood-side, Judge. (1) The duty of the trial court in criminal prosecutions is to give all necessary instructions, whether requested or not, and this duty is uniformly recognized in the practice in criminal cases in this State. State v. Branstetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; State v. Taylor, 118 Mo. 153; State v. Rufus, 149 Mo. 406.

— Hon. Henry C. Riley, Judge. (1) There was no error in permitting C. B. Faris to testify that the defendant acquired the title to the lot in question from Mrs. Roberts and she from J. D. Tinsley, and the city and its grantors had been in the actual, open, notorious and peaceable possession of the lot in question since 1872. Dyer v. Reitz, 14 Mo. App. 45; Degrew v. Prior, 60 Mo. 56; Keen v. Schweigler, 70 Mo.

— Hon. Henry C. Riley, Judge. (1) A motion for a new trial not incorporated in the hill of exceptions, though contained in the transcript, cannot he noticed by the appellate court. Stephens v. Saline Co., 65 Mo. 425; McCullen v. Hedges, 20 Mo. App. 688; Rotchford v. Creamer, 65 Mo. 48; State v. Janson, 80 Mo. 97; McKey v. Calvert, 80 Mo. 384; State ex rel. v. Burthartt, 83 Mo. 430; Demske v. Hunter, 23 Mo. App. 466; Hill v. Taylor, 99 Mo. App. 524.

— Hon. Henry C. Riley, Judge. (1) The court erred in admitting any testimony for the reason that the petition fails to state a cause of action. R. S. 1899, sec. 592; Carter v. Shotwell, 42 Mo. App. 663; Moore v. Dixon, 50 M'o. 524; Maupin v. Triplett, 5 Mo. 422. (2) The petition is also defective in that it fails to state that there were other drains and ditches into which the surface water could have been carried. Graves v. Railroad, 69 Mo.

— Hon. Henry O. Riley, Judge. (1) There were no facts proved from which defendant’s negligence could be inferred, and the demurrer to the evidence should have been sustained. Guffey v. Railroad, 53 Mo. App. 468; Pryor v. Railroad, 85 Mo. App. 376; Shields v. Railroad, 87 Mo. App. 646; Saxton v. Railroad, 98 Mo. App. 503; Bond v. Railroad, 110 Mo. App. 131; Hecker y. Railroad, 110 Mo.

<p>INSTRUCTIONS: Suggesting Weakness of Plaintiff’s Case: Harmless Error. An. instruction given on behalf of defendant contained the expression, “If you find for the plaintiff at all,” it was contended by the plaintiff that the use of the words “at all” indicated that it was doubtful in the opinion of the court whether the jury should find for the plaintiff. Held, that though it would have been better to omit the words “at all,” the error was harmless.</p>

— Son. Senry (7. Riley, Judge. (1) Whenever a part of the realty is severed by a trespasser, it becomes personal property and belongs to the owner of the land on which it stood; bnt to maintain • an action of replevin therefor, the plaintiff must have in himself the right of property, general or special, coupled with the right of immediate possession, and if his title is denied the onus is upon him to prove it. Baker v. Campbell, 32 Mo. App. 529; Andrews v. Costican, 30 Mo.

<p>1. APPELLATE PRACTICE: Defective Abstract: Filing Bill of Exceptions. The filing of a bill of exceptions cannot be shown by a recital in the bill itself.</p> <p>2. -: -: What Should be Shown by Bill of Exceptions. The only way provided by law to preserve the testimony offered at the trial of a cause and the contents of a motion for a new trial and that the injured party tools: exception to the action of the court, is that these things should be preserved in a bill of exceptions and the abstract must show what is preserved by the bill of exceptions.</p> <p>3. ACTIONS: Municipal Corporations: Violation of Ordinances: Practice: New Trial. It has been uniformly held that prosecutions for violation of city ordinances are civil actions and in such a case the city has a right to a new trial on account of errors committed against it.</p>

— Hon. L. B. Wood-side, Judge. (1) The court erred in placing upon the demand-ant, appellant, the burden of proving that the money that J. B. Harrison received, belonging to Mrs. Sally, to pay to L. P. Parker, had not been so paid by Harrison to Parker. Carder v. Primm, 52 Mo. App. 102; Best v. Best, 74 S. W. 738; State ex rel. v. Weaver, 92 Mo. 679.

— Hon. John T. . Moore, Judge. (1) The defendant insists that neither in pleading nor in proof can the plaintiffs recover, hence the court 'committed error in submitting the cause to the jury. Harrington v. Railroad, 104 Mo. App. 671; Shields v. Railroad, 100 Mo. App. 517; Williams v. Railroad, 119. Mo. 316; Hager v. Railroad, 207 Mo. 302; McIntosh v. Railroad, 58 Mo. App. 285; Jackson v. Railroad, 104 Mo. 448; Bradley v. Railroad, 138 Mo. 302; Saxton v. Railroad, 98 Mo.

Louis City Circuit Court. — Eon. Virgil Rule, Judge. (1) The petition does not state a cause of action in that if fails to allege any facts to show that plaintiffs have any rights under the alleged restriction on defendant’s lot. Sanders v. Nixon, 114 Mo. App. 229; Haines v. Einwachter, 55 Atl. 38; Badger v. Boardman, 16 Gray (Mass.) 559; Meriwether v. Joy, 85 Mo. App. 634; Coughlin v. Barker, 46 Mo.

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

— Hon. Henry G. Riley, Judge. This court will take judicial cognizance of the fact that Cape Girardeau county contains less than fifty thousand inhabitants.

— Eon. David E. Eby, Judge. (1) The court erred in admitting evidence in behalf of the plaintiff, the notes sued on, as their alteration was not explained. Kelley v. Thuey, 143 Mo. 422; Land Co. v. Tie Co., 89 Mo. App. 556. (2) The court erred in overruling defendant’s objection to the witness, Gordon, testifying as to exhibits A and B that was properly testimony in chief. (3) The court erred in refusing to give the instruction asked by defendant.

Circuit Court. — Eon. David E. Eby, Judge. (1) Defendant’s instruction number 7 was error for the reason that it submitted a question of law to the jury. While various of the witnesses who testified had little knowledge as to the character of the car which proved to be an inspection car, some of them calling it a “dinky,” yet the essential characteristics of the engine which furnished the propelling power for the car were not in dispute.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) Upon the uncontroverted evidence the verdict and judgment should have been for the plaintiff.

— Hon. J. T. Neville, Judge. The verdict should not be allowed to stand because the petition does not state facts sufficient to constitute a cause of action. It fails to allege facts which show any causal connection between the negligence, attempted to be charged and the happening of the injury to plaintiff.

— Hon. Chas. D. Stewart, Judge. (1) A state once shown to have existed is presumed to continue, so that after proof of existence, there is a presumption of the continuance of life. Hancock; v. Insurance Co., 62 Mo. 26; Greenleaf on Evidence, sec. 41; 19 Am. and Eng. Ency. Law, p. 74; In re Hall, 1 Wall J. R. 85. (2) Absence for seven years is not alone sufficient to raise presumption of death; it must also be made to appear that the person has not been heard from.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. (1) An instruction singling out and. giving undue prominence to a particular fact is erroneous. Campbell v. Transit Co., 121 Mo. Ajjp. 406. (2) Tbe application for the building permit was not shown to have been tbe act of defendant or its agent; therefore, said application and tbe permit issued thereon were erroneously admitted in evidence.

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judg (1) The service in this case was insufficient to confer jurisdiction over the garnishee. The method of service pointed out by the statute in order to give jurisdiction over a corporation as garnishee not having been strictly followed as required by the authorities: Section 3437, Statutes of 1899; Gat.es v. Tusten, 89 Mo. 20; Haley v. Railroad, 80 Mo. 114; Dunn v. Railroad, 45 Mo. App. 34; Park v. Doak, 75 Mo.

Louis City Circuit Court. — Eon. Hugo Muench, Judge. (1) The contract of July 28,1893, was one of three things: (a) A plain business contract, creating reciprocal rights and obligations between appellant Laughlin and respondent Curtis; or (b) An instrument creating a trust coupled with an interest; or (c) An instrument creating a naked trust in appellant.

Louis City Circuit Court. — Hon. Chas. C. Allen, Judge. (1) Upon finding out the fact that some of the eight and ten inch pipe and junctions had not been used in the district sewers, relator reduced its gross demand in this suit for district sewer material by that amount and reduced the credit given district sewers by an equivalent amount, leaving the net balance unaffected, (a) Relator’s intent to so apply unappropriated payments as to leave an unpaid balance of $1894.5.7…

Louis City Circuit Court. — Eon. Euro MuenchJudge. • Plaintiff’s second and third instructions are erroneous because of the use of the words, “directly contributed” in each of said instructions. Schmidt v. Transit Co., 120 S. W. 96; Wilson v. Rys., (not reported); Hof v. Transit Co., 213 Mo. 445; Krehmeyer v. Transit Co., 120 S. W. 78.

Louis City Circuit Court. — Hon. Virgil Rule, Judge. (1) The attaching creditor, plaintiff, here stands in the shoes of the defendant, the Brooks Publishing Co.', and, in the absence of any issue of fraudulent transfer of assets, it has no greater rights to the property attached than does the defendant. If the mortgage is valid as against the Brooks Publishing Co., it is, in the absence of such fraud, valid as against plaintiff.

— Eon. F. . C. Johnston, Judge. (1) When a servant has a choice, of two ways of performing bis labor, one safe, and tbe other risky, which latter he voluntarily chooses, such choice is contributory negligence precluding recovery for the resulting injury. Montgomery v. Railroad, 109 Mo. App. 88; Moore v. Railroad, 146 M'o. 572; Smith v. Box Co., 193 Mo. 715; Pauck v. Beef Co., 159 Mo, 639; Holmes v. Brandenbaugh, 172 Mr. 66; Anderson v. Box Co., 103 Mo.

'Appeal from St. Louis County Circuit Court. — Son. John W. McElhinney, Judge.

— Hon. James D. Barnett, Judge. (1) The court erred in overruling the demurrer to the evidence, because: (a) No negligence on the part of defendant was shown; (b) The injury to plaintiff happened by reason of risks assumed by plaintiff in his contract of employment. Clark v. Liston, 54 111. App. 578; Mining Co. y. Parrish, 74 111.

Louis City Circuit Court. — Hon. Matt. G. Reynolds and Hon. Wm. M. Kinsey, Judges. (1) A decree which does not dispose of the question of costs is merely interlocutory where “the reservation or suspension requires the matter to he brought before the court again.” “In view of our statutes and the decisions upon them, the question is, how far the costs rest in the discretion of the court, when sitting as a court of equity or of law. Bank v. Reilly, 8 Mo.

— Hon, David H. Eloy, Judge. The summonses were properly sent and properly served and the return of the sheriffs of Coles county, Illinois, and Yan Burén county, Iowa, are in all respects in conformity with the law and are sufficient. Secs. 577, 582, R. S. 1899.

— Hon. Jas. D. Barnett, Judge. There was sufficient evidence of a conversion and the court erred in not sending the case to the jury. .¡Bank v. Brooks, 52 Mo. App. 364. (1) The demurrer to plaintiff’s evidence was properly sustained; there was no evidence of any conversion hv this defendant. 2 Greenleaf on Ev., secs. 642, 644; Bank v. Tiger Tail, etc., Co., 152 Mo. 145; 3 Starkie, 1491, 5 Am.

— Hon. David H. Eby, Judge. The court erred in not directing a verdict for tbe defendant under tbe pleadings and tbe evidence. Peffer v. Railroad, 98 Mo. App. 291; Fundu v. Railroad, 123 Mo. App. 169; Bank v. Railroad, 98 Mo. App. 330; Peck v. Railroad, 31 Mo. App. 125; Moore v. Railroad, 28 Mo.. App. 622; Glick v. Railroad, 57 Mo. App. 105. The authorities cited by appellant do not support its contention. The case falls under the following: Holland y. Railroad, 13 Mo.

— Eon. Jas. L. Fort, J udge. (1) Tlie evidence on the part of plaintiff was not sufficient to submit the case to the jury on the question of the origin of the fire, and the defendant’s demurrer to the evidence should have been sustained. Peck v. Railroad, 31 Mo. App. 123; Sheldon v. Railroad, 29 Barb. 226; Peffer v. Railroad, 98 Mo. App. 291; Bates Co. Bank v. Railroad, 98 Mo. App. 330; Glick v. Railroad, 57 Mo. App. 97; Torpey v. Railroad, 64 Mo.

— Hon. Jos. J. Williams, Judge. (1) The trial court erred in permitting the plaintiff to amend his complaint so as to increase the amount of damages from $50 to $100. Moore v. Dixon, 50 Mo. 424; Friedler v. Shroder, 59 Mo. 366; Poulson v. Collins, 18 Mo. App. 605; Broughton v. Railroad, 25 Mo. App. 10; Brennan v. McMenamy, 78 Mo. App. 122.

— Eon. Henry O. Riley, Judge. (1) The action of replevin lies .only for the recovery of specific personal property. Fisher v. Johnson, 139 Mo. 433. (2) To sustain an action of replevin, the property sought to be recovered must Be susceptible to a seizure by the officer and delivery to the plaintiff. Jones v. Dodge, 61 Mo. 368. (3) Lands include not only the soil, but everything, attaching to it, either by the course of nature or by the hands of man, as buildings thereon.

<p>1. APPELLATE PRACTICE: Criminal Law: Duty of Appellant to File Full Transcript or Abstract. Where, in a criminal case, an appeal is taken by defendant without supersedeas being awarded, it is his duty to file a full transcript or an abstract of the record in the appellate court.</p> <p>2. -: -: Record Proper Only Before Court. Where the only record before the court on appeal is the judgment following the verdict assessing a fine, and there is no error to be found therein, it will be affirmed.</p>

<p>Appeal from Wayne Circuit Court. — Eon. Jas. L. Fort, Judge.</p>

— Eon. Jas. D.'Barnett, Judge. (1) Tbe petition declares upon a contract made ' with a partnership in 1906. The contract which the evideuce tends to prove was the sole agreement of one of the plaintiffs and the plaintiff therefore failed to prove the cause of action alleged. Lumber Co. v. Railroad, 180 Mo. 420; Myers v. Railroad, 120 Mo. App. 292.

<p>1. EQUITY: Rescission: Cancellation of Note and Mortgage. In an action to replevy mortgaged property, a plea in the answer that the consideration for the notes the mortgage was given to secure had failed and demanding that the notes and mortgage be cancelled should be tried on the equity side of the court.</p> <p>2. CONTRACTS: Written Contracts: Prior Negotiations Merged in. Where no fraud is charged in connection with the obtaining or execution of written orders of purchase, all previous understandings or arrangements between the parties or their agents are merged in the contracts.</p> <p>3. -: Evidence: Written Contract: Admissibility of Catalog. In replevin for machinery sold under written orders of purchase, a catalog describing the machinery was properly admitted in evidence as part of the sale contract.</p> <p>4. -: -: -: Parol Evidence Inadmissible. In replevin for machinery sold under written orders of purchase, parol evidence as to representations or warranties or other matters outside the sale order was inadmissible.</p> <p>5. -: Sales: Defect in Goods Sold: Warranties: Discovery of Breach. In replevin to recover machinery sold under written orders of purchase, where defendant pleaded that defects in the machinery had been fraudulently concealed, and that he did not discover them until long after the time specified in the contract for making reclamation on account thereof, an objection that defendant was concluded by the express warranty in the contract, and that he could not avail himself of the breach of it until he had complied with it on his part, was properly overruled.</p>

— Hon. David H. Eby, Judge. Tbe will of Lear was conclusive as to the charges and advancements made to Tompkins and the payments made by him. The courts have no power to say that the testator made a mistake in said book of advancements.

— Eon Jas. L. Fort, Judge. Statement. — The defendant in this case, was indicted in the circuit court of Wayne county, two indictments being returned against him, the first containing one count, the second containing two counts, each' indictment charging the defendant with wilfully and unlawfully selling intoxicating liquor to three different parties at different dates, in violation of the Local Option Law, which it is charged in each indictment and in each count, has been…

— Eon. Ohas. D. Stewart, Judge. (1) The court should have sustained the objections of the plaintiff to the introduction of any evidence on the third defense plead as a counterclaim in the defendants’ answer. It stated no defense to the cause of action sued on. This error apparent on the face of the record may be raised in this court for the first time. Maginn v. Schmick, 127 Mo. App. 411; Railroad v. Car-lisle, 94 Mo. 166; Hughes v. Hood, 50 Mo. 350; Huiest v. Marx, 67 Mo.

— Eon. Henry O. Riley, Judge. (1) The court erred in admitting incompetent evidence in behalf of tbe plaintiff. Lee v. Publishers George Knapp & Co., 155 Mo. 610; Krueger v. Railroad, 84 Mo. App. 358. (2) Tbe court erred in giving respondent’s instructions one and two. Fuilerton v. Fordyce, 121 Mo. 1.

— Eon. F. O. Johnston, Judge. The court erred in admitting the bond and record “M” of the county court in evidence. First. For the reason the statute, section 2995, does not authorize the giving or taking of such a bond. The statute does require a bond to be given and approved by the court of $2000, with certain conditions, but nowhere is the court authorized to take a bond in the sum of $25.00 from a dramshop keeper. Second.

— Hon. Henry G. Riley, Judge. (1) The plaintiff failed to prove the character of the land where the animal sued for in either count was killed. It is not enough to show that the place was not at a public road crossing or within the switch limits of any station or within the corporate limits of any city, village or town. The evidence must go further and show whether the land was enclosed or unenclosed land, and a failure to show this is fatal under the double damage act.

<p>Appeal from Scotland Circuit Court. — Eon. Chas. D. Stewart, Judge.</p>

— Hon. Jas. D. Barnett, Judge. Section 751, R. S. 1899, as amended by the Session Acts of 1907 at page 121, permits a defendant in a case of unliquidated damages to offer to let judgment go against him for a certain amount, and, in the event of the judgment against him not exceeding that amount, the plaintiff will be liable for all costs subsequent to the service of the offer. Lieurance v. McOomas, 59 Mo. App. 118; Rosenberger v. Harper, 88 Mo. App. 169.

<p>1. CRIMES AND PUNISHMENTS: Evidence: Judicial Confessions: Incompetent, When Not Made Voluntarily. A judicial confession, induced by a promise of immunity from prosecution or by flattery of hope held out or by reason of fear, Is incompetent to be received as evidence against the person making it.</p> <p>2. -: -: -: Invited Error: Appellate Practice. Accused could not on appeal object to the admissibility of an alleged judicial confession where it was brought out by his counsel in cross-examining a witness for the state.</p> <p>3. -: -: Confessions: Presumed to be True. Confessions voluntarily made by accused, being against his interest, are presumed to be true.</p>

— Eon. Eenry O. Riley, Judge. (1) The collision occurred at a public crossing, and all the evidence shows that the whistle was repeatedly sounded, and hence plaintiff is not entitled to recover for failure to give the signals, required by the statutes. Wasson v. McCook, 80 Mo. App. 483.

<p>1. DAMAGES: Instruction: Failure to Limit Damages. In an action for personal injuries, an instruction on the measure of damages which does not limit the recovery for the different items of damages to the amounts respectively demanded therefor in the petition is erroneous.</p> <p>2. COURT OF APPEALS: Duty to Follow Last Controlling Decision of Supreme Court. Under Section 6 of the Amendment to the Constitution of Missouri, adopted November, 1884, it is the duty of the Court of -Appeals to follow the last previous ruling of the Supreme Court on any given question, in every instance where the ruling of that court is in point.</p> <p>3. DAMAGES: Instruction: Failure to Limit Damages: Effect of Failure to Ask Limiting Instruction. In an action for personal injuries, the failure of plaintiff’s instruction on the measure of damages to confine the award on each item of damages to the amount demanded therefor in the petition is an error of misdirection and not of non-direction, and hence the error was not waived by the failure of defendant to request an instruction properly limiting the amount of recovery on such items of damages.</p> <p>4. PLEADING: Confining Recovery. Parties are bound by relevant matter averred in their pleadings, and a recovery by plaintiff must be confined within the allegations of the petition.</p> <p>5. APPELLATE PRACTICE: Presentation of Error to Trial Court: Clerical Error in Numbering Instructions. The court gave three instructions requested for plaintiff, the third of which was erroneous. Nine instructions were given in all, three for plaintiff, three for defendant, and three by the court of its own motion. Plaintiff’s third instruction was for convenience numbered 8 in the list as given by the court, and defendant’s motion for a new trial refex’red to it as “Plaintiff’s No. 3.” Held, that such reference sufficiently pointed out to the trial court the instruction objected to so as to justify a review thereof on appeal.</p> <p>Dissenting Opinion by Reynolds, P. J.</p> <p>6. ACTIONS: Personal Injuries: Nature of Action. An action for damages for personal injuries sustained is an action for- the recovery of money, and the jury may render a general verdict only.</p> <p>7. DAMAGES: Instructions: Failure to Limit Damages. In an action for personal injuries, an instruction on the measure of damages which does not limit the recovery on each item of damages to the amount demanded therefor in the petition is not erroneous.</p> <p>8. -: -: -: Effect of Failure to Ask Limiting Instruction. The error of such an instruction, if any, would be one of non-direction, and hence would be waived by the failure of defendant to ask a corrective instruction on the measure of damages.</p> <p>9. COURT OF APPEALS: Controlling Decision of Supreme Court: What is. The fact that a decision of the Supreme Court, which is cited as a controlling authority, is later in date than other decisions will not prevent the Court of Appeals from determining which decision is the last upon the question presented in the record before it; and that decision in which the identical point presented in the Court of Appeals was presented for consideration to, and adjudicated by, the Supreme Court will be treated as the last controlling decision on that point.</p>