Volume 147 — Missouri Appeal Reports

<p>Appeal from St. Francois Circuit Court. — Eon. Chas. A. Killian, Judge.</p>

Francois Circuit Court. — Hon. Ghas. A. Killian, Judge. (1) Tbe demurrer offered by appellant at tbe close of respondent’s case should bave been sustained. Respondent offered no proof to show a collision with appellant’s train or that any train was ever run over tbe road near where the mule was found. Gilbert v. Railroad, 29 Mo. App. 65; Lindsay v. Railroad, 36 Mo. App. 53; Logan v. Railroad, 111 Mo. App. 674; Perkins v. Railroad, 103 Mo. 52; Shaw v. Railroad, 110 Mo.

Pemiscot Circuit Court. — Hon. Henry 0. Riley, Judge. • (1) The court erred in overruling tbe motion filed by defendant to require the plaintiff to make his petition more definite and certain.

Louis County Circuit Court. — Eon. Wm. F. Broadhead, Special Judge. (1) A parol license may be revoked at any time. Pitzman v. Boyce, 111 Mo. 387; Nelson v. Nelson, 41 Mo. App. 130. (2) No mere user of a way, however long it may continue, can ripen into an easement. There must he an adverse claim in addition to the user, and this adverse claim must be known to the owner of the ser-vient estate. Pitzman v. Boyce, 111.

<p>APPELLATE PRACTICE: Judgment Sustained by Substantial Evidence. Where a judgment is sustained by substantial evidence it will not be disturbed on appeal on issues of fact.</p>

— Eon. Eenry C. Riley, Judge. (1) When a party bases Ms action on specific negligence, he must prove the negligence relied upon and that the injury resulted from it. Hurst v. Railroad, 117 Mo. App. 37. And he must recover, if at all, on the cause of action stated in the petition and not on one stated in the reply. Mathieson v. Railroad, 118 S. W. 12; Milli-ken v. Com. Co., 202 Mo. 654.

— Hon. Henry O. Riley, Judge. (1) Where a purchaser buys property from a debtor and pays its value for it, if the sale is made by vendor with fraudulent intent to defeat his creditors and the purchaser knew of that fraudulent intent, then the sale will be void; and the purchaser is not required to participate in that fraud, knowledge is sufficient.

— Hon. Henry 0. Riley, Judge. (1) Tbe court erred in refusing to instruct tbe jury at tbe close of all tbe evidence, that under tbe law and tbe evidence in this case, tbeir verdict and finding should be for tbe defendants. Roberts v. Railroad, 56 Mo. App. 60; Peck . v. Railroad, 31 Mo. App. 123; Mexico v. Jones, 27 Mo. App. 534; Reicbenbacb v. Ellerbe, 115 Mo. 588; Jackson v. Hardin, 83 Mo. 175.

— Hon. James D. Barnett, Judge. (1) Plaintiff lost the value of $1493'. 02 as security by the negligence or design of defendants North Missouri Trust Company and J. C. Mundy and as surety on the note involved in' this suit is dicharged to that extent from liability thereon. Murrell v. Scott, 51 Tex. 520; Bank v. Bartle, 114 Mo. 276; Bank v. Kilpatrick, 204 Mo. 119; Taylor v. Jeter, 28 Mo. 244; 1 Brandt on Securityship and Guaranty (3 Ed.), p. 934, sec. 498.

<p>JURISDICTION: Appellate Jurisdiction: Suit to Quiet Title: Appeal from Order Setting Aside Judgment. A case to quiet the title to land falls within the clause of the Constitution which withholds jurisdiction from the Court of Appeals of causes involving the title to real estate, and the Court of Appeals has no jurisdiction of an appeal from an order setting aside a final judgment In such a cause; the Supreme Court alone having jurisdiction thereof.</p>

— Hon. David H. Eby, Judge. (1) A transcript of this judgment was filed in the circuit court and thereby becomes for many purposes, the same as a judgment of that court. Carpenter v. King, 42 Mo. 219; Gordon v. Surghnor, 107 Mo. 520. (a) A judgment upon a judgment does not merge the original judgment. 23 Cyc., 1474.

<p>JUDGMENTS: Bick v. Dixon Followed. The facts being the same as in Bick v. Dixon, ante, that case is followed.</p>

<p>Appeal from Clark Circuit Court. — Son. Chas. D. Stewart, Judge.</p>

— Son. R. B. Ryors, Special Judge. , (1) (a) Where a principal puts an agent forward as a general agent, though in a particular line, or places him in a position where others are justified in the belief that his powers are general, the restrictions that maybe imposed upon, him privately will be immaterial except as between him and his principal. Woolen Mills v. Meyers and Cole, 30 Mo. App. 124; Manufacturing Co. v. Ball, 43 Mo. App. 504; Samuels v. Bartree, 53 Mo.

<p>1. INSTRUCTIONS: Failing to Hypothesize Ail the Facts: Appellate Practice: Presumption. A requested instruction, which fails to hypothesize all the relevant facts in proof, is presumed to have been refused because of such failure.</p> <p>2. CONTRACTS: Evidence: Parole Evidence Admissible to Remove Ambiguity in Written Contract. If the intention of the parties sought to be set forth in a written contract is not clear because of ambiguous language used therein, the ambiguity may be removed and the intention of the parties clarified by parole testimony; and while direct evidence as to the intention of the parties is incompetent, parole evidence is competent to show the parties’ situation, the surrounding circumstance and the relation which the words of the writing may bear to facts which constitute the subject-matter of the contract.</p> <p>3. BILLS AND NOTES: Evidence: Parole Evidence Inadmissible to Impeach Written Contract. Parole evidence is inadmissible to vary, contradict, add to, or subtract from, the terms of a written instrument, except in cases where, from fraud, mistake or illegality, it has not acquired original force as a contract.</p> <p>4. -: -: Parole Evidence Inadmissible to Impeach Note. Under the rule that parole evidence is inadmissible to impeach a written instrument, except in cases of fraud, mistake or illegality, parole evidence is incompetent to destroy the obligation of a promissory note as such and show it to be a mere receipt.</p> <p>6. -: Promise to Pay May be Implied. It is sufficient if the promise to pay in a promissory note is either expressed in words or raised by the law as a necessary implication on an acknowledgment of indebtedness therein contained.</p> <p>6. CONTRACTS: Law Enters Into. The legal import of every written undertaking is a part of the contract as well as the express obligations therein contained.</p> <p>7. BILLS AND NOTES: Consideration: Promise to Pay: Facts Stated. Plaintiff, on surrendering certain stock to decedent, received from him an instrument containing the words, “Good for $1000 . . . for ten shares Kinloch Jockey Club stock surrendered to the undersigned, . . . by the owner of said stock J. Kessler and for which I am liable. Joseph D. Lucas.” Held, that the word “surrendered” did not mean mere delivery, but imported a transfer of title, a giving up or making over, a relinquishment of a right or privilege, and that the words “Good for $1000” and “for which I am liable” imported a promise on decedent’s part to pay plaintiff $1000 for the stock, so that the instrument contained all the elements of a note, as between the parties.</p> <p>8. -: Requisites. The essential elements of a note are, that it must be in writing, must contain a promise to pay, either express or implied, that the promise must be for the payment of a certain sum of money absolutely and at all events, that the promise must be unincumbered with collateral agreements to do something else, and that the instrument must indicate with certainty the parties to the contract.</p> <p>9. -: Identity of Payee. A note sufficiently identifies the payee if it discloses from whom the consideration was received, and the promise is interpreted to be a promise to pay him from whom the consideration moved.</p> <p>10. -: Negotiable: Necessity of Words of Negotiability. A note in the form “Good for $1000 . . . for ten shares Kinloch Jockey Club stock surrendered to the undersigned ... by the owner of said stock J. Kessler and for which I am liable. Joseph D. Lucas,” is held to be a non-negotiable note for the reason it contains no word of negotiability, but held to be a promissory note and as such entitled to the prerogatives and attributes incident to such obligations.</p> <p>11. -: Evidence: Parole Evidence Inadmissible to Impeach Note: Consideration May be Contradicted. Except in cases of fraud, mistake or illegality, or total or partial failure of consideration, parole evidence of a verbal agreement made at the time of, or prior to, the execution of a promissory note absolute on its face is not to be received to qualify, contradict, vary, subtract from or add to its terms; but the consideration is always open to contradiction between the immediate parties to the note, and the want or illegality of consideration may be proved by parole evidence.</p> <p>12. APPELLATE PRACTICE: Judgments: Presumption in Favor of. Since all presumptions are indulged in favor of the judgments of the trial court, in the absence of erroneous declarations of law, such a judgment will be affirmed on appeal, if it may be sustained on any theory of law within the pleadings, although the appellate court is unable to discern the precise ground on which it was given.</p> <p>13. PLEADING: Probate Courts: Formal Pleadings not Required. Formal pleadings are not required in proceedings in probate courts, under section 200, Revised Statutes 1899.</p> <p>14. -: -: Formal Pleadings not Required in Circuit Court on Appeal. On appeal from the probate court, no formal pleadings are required in the circuit court, since that court proceeds to try and determine the cause anew, under section 285, Revised Statutes 1899.</p> <p>15. BILLS AND NOTES: Failure of Consideration: Evidence Reviewed. Defendant’s decedent gave plaintiff an instrument in the following form: “Good for $1000 ... for ten shares Kinloch Jockey Club stock surrendered to the undersigned . . . by the owner of said stock J. Kessler, and for which I am liable. Joseph D. Lucas.” In an action on said note, on a review of all the evidence, held the stock referred to in said note, together with other stock of like kind, was accumulated for the purpose of depositing it with a trustee who was acting for all the stockholders in a reorganization scheme, and that the equitable title of said stock at least remained in plain- ■ tiff, and, therefore, the maker of the note received no consideration therefor from plaintiff.</p>

— Rom,. Jas. D. Barnett, Judge. As to tbe jurisdictional question, we insist that tbe will of tbe deceased gave bis executor jurisdiction of tbe subject-matter, and it authorized bim to conduct and manage tbe affairs of bis private bank to tbe best advantage of bis estate, and there is no question but that it was so managed. “Both at law and equity tbe whole personal estate of tbe deceased vests in tbe executor.” Hounson v. Moore, 18 Mo. App. 410.

— Hon. Benj. H. MarTmry, Special Judge. Statement. — An indictment was returned against tbe defendant for that, being a druggist and the proprietor of a drugstore and a pharmacist in Bollinger county, he had willfully and unlawfully sold and disposed of intoxicating liquor in less quantities than four gallons, as charged in the first count, and in the second count, that he hiad willfully and unlawfully suffered and permitted intoxicating liquors to be drunk at and about his…

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

<p>Appeal from Dunklin Circuit Court. — Hon. J. L. Fort, Judge,</p>

— Hon. Joseph J. Williams, Judge. (1) The statute provides, inter alia, that a fraternal beneficiary association must bave a “representative form of government.” Sec. 1408, R. S. 1899; Wester-man v. Knights of Pythias, 196 Mo. 670; Gruwell v. National Council, etc., 126 Mo. App. 496; Brasfield v. Modern Woodmen, 88 Mo. App. 208; Supreme Lodge v. Simmering, 88 Md. 276.

— Eon. Jas. D. Barnett, Judge. (1) The defendants having availed themselves of the judgment as an adjudication and pleaded it as in full force and effect are estopped now from interposing any defense to i,ts force and effect. A party is bound by statements made in Ms own pleading. Knoop y. Kelsey, 102 Mo. 291; Lilly v. Menke, 143 Mo. 137; Cousin v. Bowling, 100 Mo. App. 459. (2) The judgment sued on is personal as well as a charge against the land.

Francois Circuit Court. — H.on. Chas. A. Killian, Judge. (1) The contract herein sued on is a contract between the member and the society and includes the application, the certificate and the constitution and bylaws of the defendant. 3 Am. and Eng. Ency., of Law, Yol. Ill, (2 Ed.), p. 108, and cases cited therein; Bacon on Benefit Societies, secs. 37, 91,116; Niblack on Benefit Societies, sec. 136.

— Hon. Chas. A. KillianJudge. (1) The law is well settled, that any change of the contract without the consent of the surety, destroys the identity of the contract and the surety is thereby discharged. School District y. Green, 134 Mo. App. 421; Reissaus y. Whites, 128 Mo. App. 135; Burnes Estate y. Fidelity & Deposit Co., 96 Mo. App. 467; Beers v. Wolf, 116 Mo. 179. The liability of a surety is not to be. extended beyond the conditions contained in the contract.

<p>SCHOOL DISTRICT OF FREDERICKTOWN EX REL. V. BEGGS, ANTE, FOLLOWED.</p>

— Hon. Henry O. Riley, Judge. (1) The material issues presented in the pleadings Avere the right to the possession of a certain lot of lumber and logs and the damages asked by both the plaintiff and the defendant. The judgment did not dispose of the issue as to plaintiff’s damages, nor as to the right of either party to the possession' of the lumber or logs, but only determined the issue as to the defendant’s claim for damages.

— Hon. Henry G. Riley, Judge. (1) The court erred in failing to excuse juror Eobert Pophaxn. Sec. 3785, E. S. 1899; Mahaney v. Eailroad, 108 Mo. 191; State v. Walton, 74 Mo. 285. (2) The verdict was for nominal damages and under-the law and evidence in this case there was no nominal’ damage in the case. 8 Am. and Eng.

<p>Appeal from Jefferson Circuit Court. — Son. Jos. J. ’Williams, Judge.</p>

— Hon. F. 0. Johnston, Judge. (1) Tbe contract between plaintiff and defendant is specially authorized by tbe Statutes of Missouri. R. S. 1899, sec. 1254. (2) Tbe contract between plaintiff and defendant is not invalid as being in restraint of trade, monopolistic or in violation of chapter 148, Revised Statutes of Missouri, 1899.

— Hon. Charles D. StewartJudge. (1) In an action on a stated account or claim, while the defendant will not be allowed to go behind the settlement to open up the whole merits of the antecedent transaction, yet he may introduce evidence respecting the earlier transactions to show whether there was a foundation for the settlement. Koegel v. Givens, 79 Mo. 77; Railroad v. Kimmel, 58- Mo. 84.

— Hon. Henry G. Riley, Judge. Reversed and remanded as to Chesterville, Perry-VILLE AND STE. GENEVIEVE RAILWAY COMPANY. Reversed as to Cape Girardeau and Chester Railroad Company. (1) The court erred in overruling the objection to the admission of any evidence and in overruling the motion for judgment on the pleadings, and in overruling the motion in arrest.

<p>Appeal from St. Louis City Circuit Court. — Ho.n. Virgil Rule, Judge.</p> <p>. (1) An agreed cas must be verified by affidavit. R. S. 1,899, sec- 198. (2). A contract must be construed as an entirety.. County, of Johnson y, Wood? 84 Mo. ¡ 489 5 Lewis, v. Penn, 3 Mo. App. ¡ 372;. Qonstruc.tion Co. y.; Hayes, 191 Mo. 292. (3) Recital-of a prior agreement, in a later one, after if has been executed, does not, extinguish, the former, Johnson y. -Wood, 84 Mo. 507; Bank v. Patterson’s Admr., 11 U. . 2994 Noel v, Gaines, 68 Mo. 658; Bunce Admr. v,.Reck,, 43 Mo. 280; Menne v, Neumeister, 25 Mo. App. 305. [A), Circumstances surrounding the execution of a contract and a supplementary one may be looked to, to ascertain the intention of the parties, or, as the. Westlake Construction Company could have compelled the surety on Ellinger’s bond to, finish the contract for the contract price of $1500,-.there was.no: inducement for it>-in,enter into the-modified; agreement unless it. expected work to be done for that , price*. The. surrounding, -circumstances must be looked to to ascertain intention of parties Koehring v. Mendngkoii, 61 Mo. 403; Pratt v. Langston, 111 Mp, App. 102; Knoepker y-. Bedel, 116. Mo. App. 67;, Nor&yke y. Martuon, 155 Mo. 643. .. (oj A contract modified, .amid circumsfances.,whic:k imply, or warrant the belief that no additional expense will result from the change, will not warrant a construction that the contracting party intended to add to the' amount of the original consideration. Boqdy v, Rut-land, 3 Rlateh. 25, Fed. Cases. No. 1635; Weay Bros, y, Schnelzer, 92, Mo, App-, 314; Gibbons v. United States,, 15 Of., Claims. 193; Gallagher y. Hist, CplumMfij dd gt. Claims 564. 1(g , , , ; y;;*</p> <p>(1) Wbat is clear needs no interpretation, and oral testimony is inadmissible to contradict or vary tbe terms of a written contract. 1 Greenleaf on Ev., sec. 275; 7 Am. and Eng. Ency. Law (1 Ed.), 91. (2) A person signing a contract is conclusively presumed to know its contents and to accept tbe same, and all prior negotiations are merged in tbe writing. Leicber v. Keeney, 98 Mo. App. 394; Crim v. Crim, 162 Mo. 544. (3) A party may change or modify tbe terms of a written contract by a subsequent agreement, and when this is done be must declare on tbe agreement as modified. Lanitz v. King, 93 Mo. 513; Munroe v. Perkins, 9 Pickering. 298; Lattimore v. H'arson, 14 Johnson 330; 1 Greenleaf on Ev., sec. 303. (4) In tbe absence of fraud or mistake, a complete written contract is a merger of all antecedent agreements between tbe parties and affords conclusive evidence of tbe knowledge and assent on tbe part of tbe parties to all its contents terms and conditions. Huber Mfg. Co. v. Hunter, 87 Mo. App. 50; Bishop on Contracts, sec. 319.</p>

Genevieve Circuit Court. — Eon. Chas. A. Killian, Judge. (1) It is alleged in the petition that the receiver was authorized by the order of the court appointing him to operate the quarry. This was denied in the answer and no proof was offered by the plaintiff to support this averment in the petition. This was a material allegation necessary to be alleged, and therefore must be proved. Scott v. Robards, 67 Mo. 289; Pier v. Heinrich-•often, 52 Mo. 333.

— Eon, Jas, L, Fort, Judge. (1) The failure to block the frogs and guardrails in appellant’s railroad yards, was not the proximate cause of the injuries to respondent’s husband. Stepp v. Railroad, 85 Mo. 229; Mathiason v. Mayer, 90 Mo. 585; Kennedy v. Railroad, 70 Mo. 352; Rutledge v. Railroad, 110 Mo. 312; Henry v. Railroad, 76 Mo. 294;.

Original Proceeding by Mandamus. (1) Mandamus is tbe proper and tbe only remedy. State ex rel. Wolff v. Yogel, 6 Mo. App. 526. Mandamus will lie to compel a circuit clerk to issue execution where be bas wrongfully refused to do so. Wolff y. Yogel, supra; State ex rel. y. Eenick, 157 Mo. 292.

<p>1. CARRIERS OF PASSENGERS: Injury to Passenger: Freight Train: Proximate Cause of Injury. Where a passenger on a freight train attempts to board it while moving and actually grabs the handrods and gets his feet on the steps of the caboose and is then thrown off by a jerk of the train, any antecedent negligent acts of the operatives of the train inducing the passenger to attempt to get on could not be the legal cause of the injury.</p> <p>2. -: -: -: Risks Assumed. A person who takes passage on a freight train assumes the risk of injury from such jars and movements as are incident to its operation, if its parts are well constructed and in good repair and it is properly operated on a safe track, but does not assume the risk of injury from faults in either of these matters.</p> <p>3. -: -: -: Jerks: Res Ipsa Loquitur. The mere fact that a person, in attempting to board a moving freight train, which was getting under full speed, is thrown off by a jerk of the train, does not warrant the conclusion of defective track or train appliances or negligent operation, and hence the doctrine of res ipsa loquitur does not apply.</p> <p>4'. -: -: -: Unusual Jerks: Evidence: Competency of Expert Witness. A passenger who is jerked from a freight train does not qualify as an expert, entitled to give an opinion that the jerk was an extraordinary one, by testifying that he had had considerable experience on such trains and had shipped stock over the road for seven years, not testifying how often he accompanied his stock.</p> <p>5. -: -: -: -: Opinion Evidence: Non-Expert Witness. An expression of opinion by a non-expert witness that a jerk of a freight train was an unusual and extraordinary one possesses no probative value.</p> <p>6. -: -: -: Jerks: Evidence Insufficient to Show Negligence: Facts Stated. In an action against a railroad company for injuries to a passenger by being jerked from the rear platform of a freight train caboose, which he had just boarded, the train being in motion when be did so, where there was no evidence to prove the train or caboose was in imperfect condition, the track out of order, or the existence of any physical defect that could cause an unusual jar or jerk of the train, and no article on the train or caboose was misplaced nor any person but plaintiff disturbed, and the only evidence adduced with respect to the character of the jerk was that given by plaintiff, who testified it was an unusual and extraordinary one, it is held there was no substantial evidence the jerk was imputable to defendant’s negligence.</p>

<p>Appeal from Audrain Circuit Court. — Eon, Jas. D. Barnett, Judge.</p> <p>(1) The defendants are connecting carriers and not partners. Sec. 13, art. 12, Const, of Mo., see. 5222, R. S. 1899; secs. 1122,1132,1134,1138,1139, R. S. 1899; Moore on Carriers, sec. 24, p. 491; McCann v. Eddy, .133 Mo. 59; Grain Co. v. Railroad, 176 Mo. 480; Hutchinson on Carriers, secs. 164-171; 6 Cyc. 478; Live Stock Co. v. Railroad, 87 Mo. App. 330; Shewalter v. Railroad, 84 Mo. App. '589. (2) The evidence fails to show where any delay occurred, whether on the line of the initial carrier, the intermediate carrier, or the final carrier, and having failed to establish a joint liability as against the two defendants, there can be no recovery as against the intermediate carrier, this defendant. There was no evidence whatever as to any negligent handling of the stock or handling of the cars, but the court in the instructions given as to each count submitted the question to the jury as to the negligent handling of the hogs, and the failure to exercise ordinary and reasonable care for their safety and allowed a recovery for delay and negligent handling' by which some of the hogs were killed or crippled. Before the plaintiff could be entitled to recover for crippled or dead hogs, he must establish by evidence that they were given such rough handling as to injure or kill them. Schureman v. Bailroad, 88 Mo. App. 183. Plaintiff’s instructions allow the jury to allow for the crippled and dead hogs on mere conjecture that some wrongful act was committed and all of them on that point are erroneous. Cash v. Railroad, 81 Mo. App. 109; Paddock v. Bailroad, 60.Mo. App. 328. To warrant a recovery by a shipper against a common carrier for damages to live freight, it is not sufficient for the shipper to show a delivery of the live freight to the carrier in good condition and its redelivery in a damaged condition, but he must further produce evidence tending to prove an injury by human agency causing or concurring to cause the loss. Hance v. Express Co., 66 Mo. App. 486.</p> <p>As to the shipments mentioned in the 3d and 4th counts in the petition, the initial carrier, the St. Louis' & Hannibal Bailroad Co., only contracted to transport the live stock to the end of its line and limited its liability to matters occurring on its own line. This it may lawfully do, as is settled by the rulings announced in the following cases, some of which are very recent ones. Western Sash & Door Co. v. Bailroad, 177 Mo. 641; Jones v. Bailroad, 115 Mo. App. 232; McLendon v. Bailroad, 119 Mo. App. 128; Bank v. Bailroad. 72 Mo. App. 82; McCann v. Eddy, 133 Mo. 59.</p> <p>(1) This action was instituted July 28, 1905’. The amendment to section 5222, B. S. 1899, was then in force. Under this act suit may be brought against all connecting carriers in any county where any one of them might be sued. It stands confessed that the Wabash may be sued in Audrain county, hence the court had jurisdiction. R. S. 1899, sec. 5222; Session Acts 1905, p. 94. (2) A corporation has no vested right to be sued in any particular place and a change in the place where suit may be brought pertains to the remedy which the State provides for its citizens and is at all times subject to modification and control by the Legislature and the fact that the causes of action declared on in this suit, arose before the amendment of 1905 does not in any way preclude the bringing of suit in Audrain county. Cooley’s Const. Lim. (6 Ed.), p. 450; Kick v. Doerste, 45 Mo.. App. 134; In re Garishe, 85 Mo. 469; Schuster v. Weiss, 114 Mo. 158; Roenfeldt v. Railroad, 180 Mo. 554. (3) It is provided by our statutes that every person who shall have a cause of action against several persons may bring suit thereon jointly or severally against any of the persons liable as he may think proper. R. S. 1899', sec. '545; Hill v. Combs, 92 Mo. App. 245; Maddox' v. Duncan, 143 Mo. 613; Ess v. Griffith, 128 Mo. 50. (4) Under the General Practice Act it is provided that when there are several defendants and they reside in different counties, the suit may be brought in any such county. R. S., sec. 562; Davison v. Hough, 165 Mo. 561. (5) Under section 562 the principal residing in one county and the agent residing in another may be jointly sued. Stotler v. Railroad and Wiseman, 200 Mo. 107; Lanning v. Railroad, 196 Mo. 647; Ess v. Griffith, 128 Mo. 50. Under the doctrine that the connecting carrier is agent of the initial (which is unquestionably true at least as to two counts in this case), the two companies were jointly liable and suit might be maintained against them in any county in which either the principal or agent resided. (6) The petition states a cause of action against the two companies as connecting carriers and even if it did not and a variance arose under the proof appellant cannot complain because it failed to file an affidavit alleging variance. Ingwerson v. Railroad, 116 Mo. App. 139; Litton v. Railroad, 111 Mo. App. 140>; Hensler v. Stix, 113 Mo. App. 162. (7) It is well settled that where several common carriers, each having its own line, associate and form what to the shipper is a continuous line, and contract to carry goods through for an agreed price which the shipper pays in one sum, and which the carriers divide among themselves, they are jointly and severally liable to the shipper with whom they have contracted for a loss taking place on any part of the whole line. Eckles v. Railroad, 112 Mo. App. 240; Wyman v. Railroad, 4 Mo. App. 35; Barrett v. Railroad, 9 Mo. App. 226; Cherry v. Railroad, 61 Mo. App. 303; Shewalter v. Railroad, 84 Mo. App. 589; Live Stock Co. v. Railroad, 87 Mo. App: 334; Champion v. Bostwick, 11 Wend. 571; Champion v. Bost-wick, 18 Wend. 175; Pattison v. Blanchard, 1 Seld. 186; Cobb v. Abbott, 14 Pick. 289; Railroad v. Spratt, 2 Dwall. 4; Black v. Railroad, 139 Mass. 308; Hart v. Railroad, 8 N. T. 37; Hutchinson on Carriers (3 Ed.), secs. 250, 251, 252, 253, 254 and 255; Weyland v. Wilkins, Holt N. P. 227; 1 Starkie 272; Laughter v. Pointer, 5 B. & C. 547; Carter v. Peck, 4 Sneed 203; Cobb v. Abbot, 14 Pick. 289; Fromont v. Coupland, 2 Bing. 170; Rocky Mt. Mills v. Railroad, 119 N. Car. 693, 25 S. E. Rep. 854, 56 Am. St. Rep. 682. (8) The rule is well established, that while a common carrier cannot be compelled to do so, it may contract to carry the goods to a point beyond the terminus of its own lines, and thus assume all of the obligations of the whole route so as to become liable for the delivery at such point, and the liability thus attached at the commencement will continue throughout the entire transit. Where it so undertakes to transport the goods throughout to destination, all connecting carriers employed'in furthering and completing such transportation become agents of the initial or contracting carrier, for whose defaults the initial or connecting carrier is responsible to the owner of the goods. Ingwer-son y. Railroad, 116 Mo. App. 139; Bank v. Some, 119 Mo. App. 1; Hardin v. Railroad, 120 Mo. App. 203; Buffington v. Railroad, 118 Mo. App. 476; Davis v. Railroad, 126 Mo. 69; Eckles v. Railroad, 112 Mo. App. 240; Eckles v. Railroad, 72 Mo. App. 296; Les-insky v. Great Western Dispatch, 10 Mo. App. 134; Clothing Co. v. Merchants’ Dispatch, 106 Mo. App. 487; Hendrix v. Railroad, 107 Mo. App. 127; Hutchinson on Carriers (3 Ed.), 226-230. The shipping contracts involved in counts 1 and 2 have been construed by this court and held to be contracts for a through shipment. Ingwerson v. Railroad, 116 Mo. App. 139; Bank v. Railroad, 119 Mo. App. 1. The contracts relating to the live stock mentioned in the 3rd and 4th counts are contracts for a through shipment. Colfax V.-Railroad, 118 Cal. 648; 40 L. R. A. 78; Eckles v. Railroad, 112 Mo. App. 240; Buffington v. Railroad, 118 Mo. App. 476; Bushnell v. Railroad, 118 Mo. App. 623; Railiff Bros. v. Railroad, 118 Mo. App. 644; Hardin v. Railroad, 120 Mo. App. 203;. Davis v. Railroad, 122 Mo. App. 637; Hutchinson on Carriers (3 Ed.), sec. 238.</p>

— Hon. B. 8. Byors, Judge. (1) There was no substantial evidence produced at tbe trial to warrant tbe trial court in submitting tbe case to tbe jury; tbe court, therefore, erred in refusing tbe demurrer offered by defendants at tbe close of all tbe evidence. Hickey v. Welch, 91 Mo. App. 4.

— Now. Henry C. Riley, Judge. The court erred in overruling the demurrer to the evidence offered by the defendant at the close of the plaintiff’s case. Smith v. Eailroad, 111 Mo. App. 410; Foster v. Eailroad, 112 Mo. App. 72; McGuire v. Eail-road, 113 Mo. App. 79; Acord v. Eailroad, 113 Mo.. App. 84; Welch v. Eailroad, 131 Mo. App. 464.

'Appeal from Pemiscot Circuit Court. — Hon. Henry G. Riley, Judge. (1) The court in overruling the defendant’s motion for a new trial. The verdict under the pleadings was so manifestly against the evidence that it ought to have been set aside. Spiro v. St. Louis Transit Co., 102 Mo. App. 250; Priesz v. Fallon, 24 Mo. App. 439; Kennedy v. Transit Co., 103 Mo. App. 1; Spohn v. Railroad, 87 Mo. 74; Bank v. Railroad, 98 Mo. App. 330.

Louis City Circuit Court. — Now. Eugene McQuiUin, Judge. (1) There was not sufficient testimony to justify ■a finding that plaintiffs’ child was struck on the crossing, and therefore the court should have directed a verdict for the defendant. A verdict cannot he based on mere conjecture. Connelly v. Railroad, 113 S. W. 235; Lynch v. Railroad, 112 Mo. 432; Moberly v. Railroad, 98 Mo. 183; Rapp v. Railroad, 10G Mo. 423; Peck v. Railroad, 31 Mo.

Charles Circuit Court . — Hon. Jas. D. Barnett, Judge. (1) The motion to require the prosecuting attorney to elect on which count he would proceed should have been sustained. In the first count defendants are charged with a felony. In the second with a misdemeanor. Felonies and misdemeanors cannot be joined in the same indictment unless specially authorized by statute. Hildebrand v. State, 5 Mo. 548; State v. Porter, 26 Mo. 201; State v. Kneeland, 90' Mo. 337.

Louis City Circuit Court. — Eon. Chas. Glaflin Allen, Judge.

<p>Appeal from St. Louis City Circuit Court. — Hon. Robb. M. Foster, Judge.</p> <p>(1) The contract of hiring as shown by respondent’s testimony was at will and not for a year. Boogher v. Insurance Co., 8 Mo. App. 534; Finger v. Brewing Co., 13 Mo. App. 311; Evans v. Railroad, 24 Mo. App. 114; Martin v. Insurance Co., 148 N. Y. 119 ; Creer v. Arlington Mills, 1 Pen. Del. Sup. Ct. Rep. 581; Railroad v. Robinson, 3 Colo. 144; Orr v. Ward, 73 Ill. 119; Prentiss v. Ledyard, 28 Wis. 133. (2) The prior decision in this case, being erroneous, should not be followed. Chamber’s Admr. v. Smith’s Admr., 30 Mo. 158; Boone v. Shackleford, 66' Mo. 497'; Guión v. Wag-goner, 116 Mo. 151; Bird v. Sellers, 122 Mo. 32; Rutledge v. Railway Co., 123 Mo. 131; Wilson v. Beck-with, 140 Mo. 369; Beasley v. Smith, 158 Mo. 523; Williams v. Butterfield, 119 S. W. 19. (3) An accord and satisfaction must rest upon agreement. Perkins ■v. Headley, 49 Mo. App. 561; 16 Cyc. 312; Wilkerson v. Bruce, 37 Mo. App. 156; Land & Lumber Co. v. Lumber Co., 136 Mo. App. 181. (4) Assuming a contract at the beginning for a year’s service, and after its termination the engagement was at will. Rose v. Carbonating Co., 60' Mo. App. 28; Embry v. Dry Goods Co., 115 Mo. App. 130', 127 Mo. App. 383. (5) The instruction given for respondent submitted, without explanation, a question of law to the jury. Stevens v. Crane, 37 M’o. App. 494; Estes v. Fry, 22 Mo. App. 123; Kendall, etc., Co. v. Bain, 46 Mo. App. 590; Carroll v. Campbell, 110 Mo. 571. (6) Tbe conrt erred in excluding from tbe jury tbe testimony .of Fitzpatrick as to tbe terms of tbe original contract. Buebanon y. Aebison, 39 Mo. 503; R. S. 1899, sec. 2906; Glasgow v. Ridgley, 11 Mo. 26; Walsh v. Agnew, 12 Mo. 525; Fox y. Webster, 46 Mo. 185; Leszinsky v. Dispatch Line, 14 Mo. App. 598; Warlick v. Peterson, 58 Mo. 408; Patton v. Railroad, 87 Mo. 122; Williamson v. Brown, 195 Mo. 328.</p> <p>(1) Tbe contract of biring between plaintiff and defendant as shown by respondent’s evidence was a contract for a year, and when continued after its expiration without a new agreement, tbe employment continued under tbe terms of tbe original contract. 26 Cyc. 969 and 976, and cases cited; 20 Am. and Eng. Ency., p. 16,and cases cited; Hendrix v. Mill Co., 77 Mo. App. 224; Arnold v. R. Steel Spring Co., 131 Mo. App. 612; King v. Railroad, 140 N. C. 433. (2) Whatever has once been passed upon on appeal, will, in tbe same case upon a second appeal, he treated as no longer open to dispute or further controversy. Searles v. Lum, 89 Mo. App. 239; Railroad v. Combs C. Co., 89 Mo. App. 182; Overall, Admr., v. Ellis, 38 Mo. 209; Redpath Bros. v. Lawrence Manning & Cushing, 48 Mo. App. 429; Rice v. McFarland, 41 Mo. App. 409; Rigsby v. Oil Well Sup. Co., 130 Mo. App. 128; Chapman v. Railway, 146 Mo. 481; Railroad v. Bridge Co., 215 Mo. 286. (3) Even if there was no contract of hiring for a year, and tbe question had not been adjudicated, tbe disputed claims of tbe parties were sufficient consideration to support tbe compromise contract sued on. There was more than reasonable grounds for belief in tbe validity of tbe claim. 1 Cyc. 316; Dailey v. Jessup, 72 Mo. 144; Laud & Lumber Co. v. Lumber Co., 136 Mo. App. 181; Bank v. Rockefeller, 174 Fed. 22. (4) Tbe term, ‘‘yearly employment,” used in an instruction does not require definition. If so, appellant used it also without interpretation,. which estops it from complaining at this time. Fearey v. O’Neill, 149 Mo. 477; Wheeler v. Bowles, 163 Mo. 409; Railroad v. Shoemaker, 160 Mo. 434; Harmon v. Donohoe, 153 Mo. 274; Iron Co. v. Carpenter, 67 Md. 554; Harper v. Fidler, 105 Mo. App. 689. (5) A question asking for the substance of a conversation is improper, as it permits witness to state conclusions, and decide what is and what is not material. The objection was not against the form of the question, but against the matter called for. State v. Miller, 44 Mo. App. 165; Muff v. Railroad, 22 Mo. App. 587; Madden v. Railroad, 58 Mo. App. 673; Sparr v. Wellman, 11 Mo. 150'.</p>

<p>COMMON CARRIERS: Delay In Transporting Goods: Evidence to Establish Contract Insufficient. Plaintiff delivered goods to defendant railroad company, to be transported to a point on the line of a connecting carrier. The consignee refused them, and thereupon plaintiff wrote to defendant, asking it to have the goods returned and enclosing the bill of lading. Defendant did not answer this letter nor expressly agree to do anything, but did make an effort to have the goods returned by the connecting carrier. There was no proof of payment of the usual tariff charges. The connecting carrier did not promptly return the goods, and plaintiff brought suit against defendant, alleging it had breached a contract to have the goods returned within . a reasonable time. Held, it was not so certainly established such a contract was made as to preclude the trial court from finding it was not made.</p>

Louis City Circuit Court. — Hon. Geo. H. Williams, Judge. (1) Tlie court erred in refusing to discharge tlie special jury. “While statutory provisions respecting the drawing of a jury are regarded as discretionary merely, it does not follow that essential provisions of the statutes can he absolutely disregarded.” State v. Austin, 183 Mo. 478; State v. Lehman, 175 Mo. 619.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The sole and only specification of negligence contained in the petition is as follows: “Negligently and carelessly injected into the parts affected a preparation which formed a waxy substance and resulted in an inflammation of the intestines.” Plaintiff having alleged this ground of negligence in his petition, is hound by it and cannot recover upon any other ground.

<p>COMMON CARRIERS: Negligence: Destruction of Goods: Flood: Act of God: Proximate Cause: Facts Stated. The waters of rivers had been gradually rising for several days until the night of May 30th, threatening to inundate railroad tracks on which goods were standing, and the weather office and newspapers had sent out warnings of danger. Similar overflows had occurred before without damaging property, and similar warnings had been given by the weather office. On May 31st, an unforeseen, unprecedented and overwhelming flood occurred. The flood was unexpected even by the government weather officials, and the goods which had not been removed from the yards were destroyed. Held, that the loss was due to the flood, and not to the railroad’s failure to remove the goods to a place of safety.</p>

— Hon. Henry G. Riley, Judge. ' (I) The court erred in refusing to admit relevant and competent testimony offered by the appellant. Type Foundry v. Printing Co., 3 Mo. App. 149'; Strother v. Lumber Co., 200 Mo. 647. (2) The court erred in admitting irrelevant and incompetent testimony offered by the plaintiffs.

Louis City Circuit Court . — Hon. Geo. E. Williams, Judge. (1) The delivery of goods to a common carrier for transportation to the purchaser passes title to the latter and is equivalent to delivery to the purchaser, subject only to the right of stoppage in transitu. Seharff v. Meyer, 133 Mo. 428; Bank v. Smith, 107 Mo. App. 188; Cultivator Co. v. Railroad, 64 Mo. App. 306.

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. (1) Under the evidence it was for the jury to determine whether or not punitive damages should he assessed against the defendant. The court erred, therefore, in setting the verdict aside on the ground that the plaintiff was not entitled to punitive damages. Yeager v. Berry, 82 Mo. App. 534; Prentiss v. Shaw, 56 Me. 427; Summerfield v. Transit Co., 108 Mo. App. 718; Carmody v. Transit Co., 122 Mo.

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

Louis City Circuit Court. — Now. Eugene McQuillin, Judge. (1) A mistake in a notice of appeal from the judgment of a justice of the peace as to the date of the judgment appealed from, will not deprive the appellant of the benefit of his appeal, if it appears that there is enough in the notice to apprise the appellee what judgment was appealed from, or if it is not shown that there is some other judgment, or unless it appears that the appellee has been misled by the notice to…

Louis City Circuit Court. — lion. Virgil Rule, Judge. (1) The demurrer to the evidence should have been sustained: (a) Because there is no evidence in the record to show that any defective condition in the cogs of the wheel referred to in the evidence was the proximate cause of the accident to plaintiff, (b) Because there was no evidence of any notice either actual or constructive to the defendant concerning a defective condition of the cogs on the wheel referred to in the…

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. (1) Wherever one person is placed in such a relationship to another, by the act or consent of the- other, or by the act of a third person or the law, that he becomes interested for him or interested with him in any subject of property or. business, he is prohibited from acquiring rights antagonistic to the persons with whose interests he has become associated. Barrie v. Railroad, 138 Mo.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The circuit court erred in dismissing plaintiff’s petition, as under the law and the evidence, he is entitled to the relief prayed for in his petition. (2) The defendant, under the circumstances of this case, absented herself from plaintiff, without reasonable cause. Grove v. Grove, 79 Mo. App. 142; Freeman v. Freeman, 94 Mo. App. 504.

Louis Court of Criminal Correction.— Hon. Wilson A. Taylor, Judge.

<p>1. MUNICIPAL CORPORATIONS: Power to Contract: Constitutional Provisions. Tinder section 48 of article 4 of the State Constitution, municipal corporations are inhibited from paying or authorizing the payment of moneys on contracts made without express authority of law, and such contracts are declared to he null and void.</p> <p>2. -: -: Contract for Legal Services: Presumption of Rightful Exercise of Authority: Pleading. Where it appears a municipality is acting within its jurisdiction, the presumption of right and not of wrong attends its oficial acts, unless the contrary appears; so that, in a case where a municipality is sued on a contract for legal services, which, under section 5907, Revised Statutes 1899, as amended in 1903, the city had power to make, where there was a vacancy in the office of the city attorney or where the attorney was employed to assist the city attorney, the petition is not insufficient for failure to allege the existence of the vacancy or that plaintiff was employed to assist the city attorney, as the law will presume the city officers exercised their authority rightly, nothing to the contrary appearing.</p> <p>3. -: -: Employment of Counsel: Matter of Discretion. The matter of employing counsel to represent a municipality in matters of controversy involves the exercise of discretion.</p> <p>4. -: Delegation of Power. While a municipality may delegate to an agent a mere ministerial act, unless expressly forbidden, yet discretion conferred upon one class of city officers by positive legislative direction may not be transferred or delegated to others.</p> <p>5. -: Employing Counsel: Unauthorized Delegation of Authority. Under section 5907, Revised Statutes 1899, as amended by Acts 1903, page 81, which provides that the mayor and board of aldermen of a city of the fourth class may by ordinance employ special counsel to represent the city in certain contingencies and pay reasonable compensation therefor, an ordinance of such a city, which directs the city collector to employ counsel, is an invalid delegation of the power of the mayor and board of aldermen.</p> <p>6. -: -: -: Contracts. A contract made by the city collector with an attorney, under such an ordinance, is intra vires, its only infirmity being that the power properly lodged in the mayor and board of aldermen was defectively executed.</p> <p>7. —;-: Equitable Estoppel: Intra Vires and Ultra Vires. An equitable estoppel may not be invoked against a municipality which has acted wholly beyond its power in entering into a contract, yet where the power to contract is clearly vested in a municipality and it- is irregularly exercised, the doctrine of equitable estoppel will be applied, it being the rule that as to matters within the scope of theif powers and the powers of their officers, municipal corporations may be. estopped on the same principles and under the same circumstances as natural persons.</p> <p>8. -! -: Invalid Contract for Employment of Attorney: Acceptance of Service by City. A municipal corporation, which had authority to engage special counsel by its mayor and board of aldermen, passed an ordinance authorizing the city collector to engage special counsel, said ordinance being void as an unauthorized delegation of the power of the mayor and board. Plaintiff was engaged by the city collector in accordance with the directions of the ordinance and performed the services for which he was engaged, the city receiving and retaining the benefit thereof. In an action for compensation for the services performed under the contract, held, that the city by accepting the fruits of the contract invoked the doctrine of equitable estoppel against itself and would not be heard to dispute the obligation to recompense plaintiff on the terms which induced his services.</p> <p>9.-: City Officers: Personal Liability. In every ease the presumption is, that municipal officers act for their principal and not for themselves, unless something to the contrary appears; and when such officers act within their authority, they are held to a personal obligation only in those cases where by apt and appropriate language a clear intention to assume such is disclosed.</p> <p>10. -:-: Scope of Authority: Persons Contracting Bound to Ascertain. Where the obligation of the public negotiated through its agent is sought to be enforced against the municipality, the rule obtains that every person is required at his peril to ascertain at the time the contract is entered into that it is within the scope of the authority which the law conferred on the officer.</p> <p>11. -:-: Personal Liability of Officer: Mistake as to Law. A public officer, who avowedly contracts for the municipality only and acts in good faith, without misrepresentations of facts, will not be held personally liable for a mere defective execution of the power, which appears to have resulted from an error as to the law, induced by the concurrence of all the parties.</p>

— Ho». C. M. Stewart, Judge. Respondent’s grantor, promised and agreed in writing, to build by October 1, 1880, tbe passway and watergap in question, as part consideration for the land it bought from Blair, and the building of which structures, respondents now concede is reasonably worth the sum of $700', and this consideration was open and expressed upon the face of Blair’s deed. This watergap1 and backwater gate, respondents concede was never, at any time built.

<p>Appeal frbm St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.</p> <p>(1) The demurrers to the evidence offered by appellants should have been sustained. Dinsmore v. Livingston Co., 60 Mo. 244; Williams v. Railroad, 112 Mo. 489, S. C. .153 Id. 497; Chapman v. Railroad, 114 Mo. 547; Howard County v. Baker, 119 Mo. 407; Mc-Gregor v. Construction Co., 188 Mo. 623; Roy v. Boteler, 40 Mo. App. 222; Eldridge v. Fuhr, 59 Mo. App. 49; International, etc., Co. v. Biefeld, 173 Ill. 185; 30- Am. and Eng. Ency. of-Law (2 Ed.), p. 1264; O ’Keefe v. St. Francis Church, 59 Conn. 567; DeMattos v. Jordan, 15 Wash. 378; Tally v. Parsons, 131 Calif. 516; Scott v. Texas, etc., Co., 55 S. W. (Tex. Civ. App.) 38; American, etc., Co. v. Gibson Co., 127 Fed. 671; New York, etc., Co. v. Springfield, etc., Co., 56 App. Div. (N. Y.) 294. (2) The instruction given by the trial court to the jury was erroneous because it authorized a recovery without the production of the architect’s certificate required by the contract. Cases cited supra.</p> <p>(1) The conditions of the bond sued on are paramount to all stipulations in the contract; for it is the general rule, that one incurs the precise liability nominated in the bond, and he can relieve himself by performance of the conditions. The words “unconditionally bound” constitute a vaiver of all stipulations in the contract. The covenants in bond to pay, etc., are independent and additional covenants to those mentioned and contained in the contract and stand without limitations upon them. The bond in suit is an “ omnibus” bond. Davis v. Wells Fargo Co., 104 U. S. 164; Kent v. Silver, 106 Fed. 365; Harvesting M. Co. v. Laster, 70 Ill. App. 425, s. c. 81 Ill. App'. 316; Robbins v. Robbins, 176 Pa. St. 341; Lionberger v. Krieger, 88 Mo. 160; Bank y. Trustee, 75 Mo. 199; Boteler v. Boy, 40 Mo. App. 234; Fisher v. Cutter, 20 Mo. 209; Cock-ran y. Stewart, 63 Mo. 424; Fisse v. Einstein, 5 Mo. App. 78; Martin et al. v. Whites & Cos, 128 Mo. App. 117. (2) The stipulation in article 5: “The expense incurred, etc., by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified to by the architects whose certificate thereof shall be conclusive upon the parties,” is not merely, a provision in the nature of an appointment of a third party for the purpose of an appraisement or valuation, but also involves and requires the determination of the question as to the measure of damage to be applied in the matter. It is, therefore., in the nature of a provision for arbitration and award. Such a provision, following after the express provision in said article 5, . . . but if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner,” does not, on arising of a dispute as to whether under the contract certain expenses ought to' be taken as an element of damage to the owner, make such an award of arbitration a condition precedent to a right of action. Nor is such a provision for award and arbitration irrevocable. It is revoked by the institution of suit. The two stipulations, viz.: The one providing for the contractor to pay the owner such excess, and the other that the expense in finishing the work and damages incurred shall be audited and certified, are distinct and independent stipulations. The stipulation to audit and certify to the expense and damage is collateral. Neither by express stipulation or by-the necessary implication is such an award by arbitration made a condition precedent to plaintiff’s right of action, nor is such an award a grant of power coupled with an interest, and therefore irrevocable. If such a provision is to be construed to be an irrevocable award, then it is a plain attempt to oust the jurisdiction of tlie courts to determine the rights of the parties. Such is against public policy and the law. George A. Fuller Co. v. .Doyle, 87 Fed. 687; Mfg. Co. v. Locomotive Co., 119 Fed. 489; Hamilton v. Ins. Co., 137 U. S. 370, 380', 388, see cases Cent. Dig. No. 30; Green v. Cotton Co., 112 Fed. 743; Parsons v. Ambos, 121 Ga. 98; Lloyd on Building and Builders, pars. 15,16,17,18; Preston v. City of Syracuse, 92 Hun (N. Y.) 301; Seward v. Rochester, 109 N. Y. 154; Canal Co. v. Coal Co., 50 N. Y. 250; Hurst v. Leifield, 39 N. Y. 377.</p>

Louis City Circuit Court. — Hon. Geo. H. Williams, Judge. (1) The petition states a cause of action against the defendant LaMothe, and the damage is a definite sum, $2632. (2) When the plaintiff has a well defined cause of action against one of the defendants, she may join with LaMothe anyone who knowingly and wrongfully aided and assisted LaMothe in accomplishing the act which caused the damage to plaintiff.

Louis City Circuit Court . — Eon. Eugene McQuillin, Judge. (1) The court erred in admitting improper evidence offered by the plaintiff over the defendant’s objection. Coont v. Railroad, 115 Mo. 669'; Edwards v. Railroad, 79 Mo. App. 257; Mellor v. Railroad, 105 Mo. 455; Prior v. Railroad, 85 Mo. App. 367.

<p>Appeal from St. Louis City Circuit Court. — Mon. Wm. M. Kinsey, Judge.</p> <p>(1) If there was a conflict of evidence as to intention in the execution of the written document, it was proper to submit the question of intention to the jury, There being no evidence that the parties did not intend an actual transfer, and the purpose of the parties in the execution and delivery of the written document being gathered exclusively from the construction of the instrument, the intention was a matter of law for the court, and not for the jury. The verdict was against the evidence. 1 Thompson on Trials, secs. 1065, 1096; Lockwood v. Ins. Co., 47 Mo. 50; Price v. Evans, 49 Mo. 396; Winson v. Radway, 45 Mo. App1. 123; Northwestern P. Co. v. Danielson, 57 Fed. Rep. 915. (2) The first instruction violates the well-settled principle of the law, because it tells the jury that if they find it merely colorable and fictitious, and not intended by the parties as an actual transfer “but was merely designed and intended to relieve the said Keeley Real Estate Co. from liability for the payment of taxes under the lease,” for the reason that it is the law that Keeley Real Estate Co. could make the assignment for the express purpose of avoiding liability for the payment of taxes under the lease. Tyler v. Giesler, 74 Mo. App. 543; Jones on L. & T., sec. 456; Wood on L. & T., sec. 340 (2 Ed.), and sec. 337 (3 Ed.); 18 Ency. Law, p. 674; Taylor v. Shum, 1 Bos. & T. 21; Johnson v. Sherman, 15 Cal. 287; Nat. Gas. Co. v. Johnson, 123 Pa. St. 576; McLean v. Caldwell, 107 Tenn. 138; Tibbals v. Iffland, 10 Wash. 451; Sharon Cong. Soc. v. Rix, 17 Atl. R. 719; 1 Wash. Real P. (2 Ed.), sec. 13, p. 438; Tait v. McCormick, 23 Hun (N. T.) 218; Johnson v. Bates, 48 N. T. Sup.” Ct. 1801. (3) The instruction violates the law when it tells the jury that if they “further believe from the evidence that said Henry Kittrell never toot actual possession of the .premises covered by the lease” because it was not necessary for Henry Kittrell to take actual possession, and because the court in that part of the instruction submits to the jury the legal effect of the sub-lease of Henry Kittrell to Keeley Real Estate Co., which could be given by Kittrell upon no theory other than that he did take actual possession of the premises. Johnson v. Sherman, 15 Cal. 287; Taylor v. Shum, 1 Bos. & T. 21; Wood on L. & T. (1 Ed.), sec. 349; Tyler v. Griesler, 74 Mo. App. 543. (4) The part of the instruction “that said Keeley Real Estate Co. continued in beneficial use and enjoyment of the premises and received the rents due thereafter from subtenants in occupation of said premises” was given without any warrant in the evidence and in the face of the undisputed testimony that the defendant’s possession was ascribable to the sublease from Kittrell. (5) The first instruction is misleading, and misstates the law to the jury. After telling the jury that the Keeley Real Estate Company admits that it became the as-signee, the instruction further directs: “You are further instructed that by accepting said assignment said defendant became liable for the payment of taxes thereafter becoming due against the premises during the unexpired term of the lease.” There is nothing in any part of the instructions given, to qualify this broad declaration. The next paragraph does not do it. It is entirely outside of the issues. The next paragraph is likewise a misstatement of the law, as much a misstatement of the law and as foreign to the issue as the direction that “Henry Kittrell never took actual possession of the premises.” See authorities under the second and third points, supra. (6) The second instruction asked for plaintiff submits to the jury the following question of law; “And in determining whether or not the assignment . . . was an actual transaction intended to vest tlie ownership and beneficial enjoyment of the leased premises according to its purport .... or whether said transaction was merely colorable or fictitious, designed solely to relieve Keeley Real Estate Co-, from liability for the payment of taxes under the lease,” and is contrary to the well-settled law, because there can he no fraud in an as-signee assigning a lease to get rid of liability. Tyler v. Griesler, 74 Mo. App. 543; Jones on L. & T., see. 456; Taylor v. Shum, 1 Bos. & T. 21; Tait v. McCormack, 23 Hun (N. T.) 218 ;TJnderhill on L. &T. .(Ed. of 1900), sec. 649, p. 1090. (7) The instruction that if the jury believed the assignment was “merely colorable and fictitious” was in effect submitting to the jury the question as to whether the assignment was fraudulent when there could he no fraud in the act. Railroad v. Alfree, 64 Io. 500; 7 Cyc., p. 400, tit. “Color;” Black’s Law Diet., tit. “Color” and authorities cited. (8) There is no covenant against or regulating assignment. The lease could therefore he transferred at will. The assignments shown in evidence were sufficient to carry the title from Keeley Real Estate Co. to Kittrell. 2 Under-hill on L. & T., p. 1050, sec. 1027; Clark v. Aldrich, 40 N. Y. 5440; Reid' v. Werssiner & Son B. Co., 88 Mo. 234.</p>

Louis City Circuit Court. — No®. Hugo Muench, Judge. (1) Tlie court erred in setting aside the verdict because the statute requires that before granting a new trial the court must' he satisfied that an improper verdict was occasioned by the error on account of which the new trial is granted. R. S. 1899, secs. 659', 672, 800, 865.

Louis City Circuit Court. — Eon. Eugene McQuillin, Judge. (1) The court erred in giving instruction No. 2. on the second count. The contract for the second car only required the lemons to he equal to the first car. while the instruction required them to he fancy lemons, the fancy lemons of various packers and localities varying both in quality and price.

<p>1. MONOPOLIES: Contracts: Valid and Invalid Provisions: Divisibility. A contract, by wbicb one party agreed to teach another a method for treating the hair, the latter agreeing to use the former’s remedies exclusively, and further agreeing not to mention having learned said method except in connection with the use of said remedies nor to teach said method without having exacted.a similar contract from the pupil, consists of sep-erable stipulations, some of which go too far toward restraining trade and favoring monopoly to be enforced, while others are not subject to this objection.</p> <p>2. -: -: Stipulations Held to be In Restraint of Trade. The agreement not to use any remedies but those belonging to said party while treating patients by a common method to which said party had no exclusive right was in restraint of trade and fostered monopoly, was unreasonable at common law and in contravention of section 8966, Revised Statutes 1899, there being no limitation in respect of territory or time.</p> <p>3. GOOD WILL: Is Species of Property. The good will of preparations used in treating the hair and system of treatment is a species of property.</p> <p>4. CONTRACTS: Negative Covenant: Action Will Lie to Restrain Breach: Equity. An action in equity will lie to restrain the breach of a negative stipulation in a contract, which is supported by a consideration, if it is not oppressive, opposed to the policy of the law, nor for personal services.</p> <p>5. -: -: -: -: No Irreparable Injury. There» is authority for saying the violation of a negative covenant will be restrained, even though it does not appear irreparable damage will flow from a violation of it, and that an injunction will be granted almost as a matter of course to prevent the breach of such covenants.</p> <p>6. -: -: Stipulations Held Valid: Breach of Negative Covenants. Plaintiff agreed to teach defendant a method for treating the hair, the latter agreeing to use the former’s remedies exclusively and further agreeing not to mention having learned said method except in connection with the use of said remedies. In an action to restrain the breach of said contract, 7/eZd, the stipulation that defendant should not mention having learned plaintiff's method of treatment except in connection with the use of her preparations was enforceable, and that plaintiff could enjoin defendant from advertising herself as plaintiff’s pupil after she had ceased to use plaintiff’s remedies in treating the hair, under the rule authorizing injunctions to restrain the breach of a negative covenant in a contract.</p>

<p>1. TRIAL PRACTICE: Improper Argument of Counsel: Retraction. Where, in an action for loss of goods by fire, on objection to the argument of plaintiff’s counsel to the effect that plaintiff showed defendant took the goods away and. burned them up, the court stated there was no evidence that the goods were burned up by defendant, and counsel retracted his statement, such statement, though improper, because outside of the evidence, is not ground for reversal.</p> <p>2. WITNESSES: Husband and Wife: Agency of Wife. Where a husband called up a corporation engaged in the business of moving household goods, and asked its representative to come to his house and arrange with his wife for the moving of bis goods, tbe wife as the agent of the husband was competent to testify as to the arrangement made with the corporation for the moving of the goods, and the incidents connected therewith.</p> <p>3. TRIAL PRACTICE: Discretion of Court: Evidence: Refreshing Memory from Memorandum. The action of the trial court in allowing a witness to refresh his memory from memoranda made sometime after the happening of the events in issue is within its discretion, and its rulings will not he disturbed unless the discretion was abused.</p> <p>4. COMMON CARRIERS: Who Are: Question of Law or Fact. It is a question of law for the court to determine as to what constitutes a common carrier, but it is a question of fact for the jury to determine whether the person charged as a common carrier is within that definition and is carrying on his business in that capacity.</p> <p>5. WAREHOUSEMAN: Liability of: Destruction of Goods by Fire. A warehouseman is not liable for the destruction of goods by fire not due to his negligence or that of his agents in the course of their employment, where due diligence has been exercised for the safety of such goods, and the burden of showing negligence of the warehouseman is always on plaintiff; but it is sufficient for plaintiff to show delivery of the goods in good condition and their return in- a damaged state, from which facts the law declares a prima facie case of negligence is made out.</p> <p>6. PRIVATE CARRIERS: Liability. A private carrier with or without a reward is only a bailee, and his liability is determined by the rules governing the responsibility of bailees.</p> <p>7. COMMON CARRIERS: Who Are. A “common carrier” is one who undertakes for hire to transport the goods of such as choose to employ him, and ordinarily carters and expressmen engaged in carrying freight to and from a depot or warehouse, or between places in the same locality, or between different localities, are common carriers.</p> <p>8. -: -: Liability: Limiting Employment. The fact that one engaged in the carriage of goods may have limited his employment to the carriage of household goods only does not change his position as a common carrier, for the employment may be limited to the mere carriage of particular kinds of property, and when this is shown and is a known and avowed fact, such person will not be liable as a common carrier for- any other goods or property entrusted to his agent without his con-sept; but he will be liable as a common carrier for the loss of those goods, in the carriage and moving of which he is engaged as a regular business.</p> <p>9.-: Warehouseman: Liability. A common carrier may be a warehouseman, and when acting as such its liability is that of a warehouseman and not that of a common carrier.</p> <p>10. BAILMENT: Loss of Goods: Burden of Proof. A bailee for hire, who fails to deliver goods received by him, has the burden of excusing the non-delivery.</p> <p>11. COMMON CARRIERS: Negligence: Destruction of Goods by Fire: Evidence Sufficient to Prove Negligence. In an action against a common carrier of household goods for loss of goods by fire while in its custody, evidence that the driver of a moving van in which said goods were being transported was told -there was a fire in the van but that he paid no attention to it until when, sometime afterwards, he looked around and discovered the fire, was sufficient to warrant the jury in inferring defendant was guilty of negligence resulting in the loss.</p> <p>12. -: Who Are: Liability of: Destruction of Goods by Fire. One holding himself out as engaged in the general business of moving household goods from one residence to another in a city, for all who choose to employ him, is a “common carrier,” and is an insurer against all losses save these due to the act of God, or the public enemy, and a fire destroying goods in his possession is an accident against which he insures, unless it is the result of lightning.</p> <p>13. -: Destruction of Goods by Fire: Instructions: Making Defendant Liable as Bailee: Harmless Error. A common carrier of household goods sued for loss of goods by fire while in its custody as carrier may not complain of instructions limiting its liability to the liability of a bailee for hire, where the jury could find that its negligence caused the loss, and where the uncontradicted evidence showed its liability as a common carrier, whether it was negligent or not.</p>