Volume 148 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) The rule that a drawee is presumed to know the signature of his drawer, and that if he pays money on a forged check, to a bona fide holder, he cannot recover it, does not apply to a case where the holder has himself been negligent in taking the check, and has thereby led the drawee to relax his vigilance. Ellis & Morton v. Insurance & Trust Co., 4 Oh.

<p>BILLS AND NOTES:. National Bank of Commerce v. Mechanics’ American National Bank et al., ante, followed.</p>

Louis Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) Where the defect complained of is not only '‘as obvious and open to the employee as to the employer,” but, so far as it exists at all, such existence is glaring and palpable, recovery is never permitted. Under such circumstances the employee assumes the risk. Bennett v. Lumber Co., 116 Mo. App. 699; Burning v. Me-dart, 56 Mo. App. 448; Marshall v. Hay Press Co., 69 Mo. App. 256; Kleine v. Shoe & Clothing Co., 91 Mo.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. (1) Proofs of death furnished to the society are prima-facie evidence of the facts therein stated and are conclusive unless the beneficiaries show that the statements made therein were erroneous or were given through mistake. Almond v. Modern Woodmen of America, 113 S. W. 695; Insurance Co. v. Newton, 22 Wall. 32; Hassencamp v. Ins. Co., 120 Fed. 475; Hanna v. Ins.

<p>1. BILL OF EXCEPTIONS: Extension of Time for Filing: Ineffective, When. An extension of time for filing a bill of exceptions granted after the expiration of tbe period first fixed is ineffective.</p> <p>2. APPELLATE PRACTICE: No Exception to Overruling of Motion for New Trial. Where no exception is saved to tbe overruling of a motion for a new trial, nothing is left for review, on appeal, except the record proper.</p>

Louis City Circuit Court. — Eon. J. Eugo Grimm, Judge. (1) The dual capacity doctrine, as applied in this State,.means this: When a servant and his master’s vice-principal undertakes to do some work or act, in the master’s service, that belongs to the duty of the servant, as to the doing thereof, the servant and vice-principal are fellow-servants, and if while doing such work or act the servant is injured through the negligence of the vice-principal, the master will not be…

<p>1. MUNICIPAL CORPORATIONS: Negligence: Injury on Sidewalk: Assumption That City Had Done Duty. A person using a city sidewalk cannot presume that the city has done its duty in keeping the sidewalk in repair, when she knows it is in bad condition.</p> <p>2. -: -: -: Duty of City. A city is not bound, at all hazards, to keep its sidewalks in safe condition for travel, but is only bound to use ordinary care to -keep them in a reasonably safe condition for travel by day and night.</p> <p>3. -: -: -: -: Overstating Degree of Care: Instructions: Harmless Error. In an action against a city for injuries received on a defective sidewalk, an instruction overstating the degree of care required of a city was harmless error, where it was conceded the sidewalk was out of repair and had been for months and that its condition was known to everybody.</p> <p>4. -: -: -: Presuming City Had Done Duty: Instructions: Harmless Error. In an action against a city for injury received on a defective sidewalk, an instruction that plaintiff might presume that the city’s duty had been performed by it and that the sidewalk was in a safe condition for use, was not prejudicial error, where there was no evidence tending to show plaintiff’s contributory negligence.</p> <p>5. -: -: -: -: -: Prejudicial Error, When. In stating plaintiff might presume defendant had performed its duty and that the sidewalk was in a safe condition for use, when she knew it was in bad condition; the court would have committed prejudicial error on the issue of whether plaintiff used due care for her own safety, if there was any evidence tending to convict her of contributory negligence.</p> <p>6. -: -r: -: Contributory Negligence. It is not negligence for a person to use a sidewalk which he knows to be in bad repair, unless it is so unsafe that no person of ordinary prudence would attempt to walk over it.</p> <p>7. DAMAGES: Excessive Verdict. Plaintiff, a school teacher, sustained a contusion of the lower third of the tibia from a defective sidewalk, causing considerable pain and injuring the nerves. At the time of trial, nearly two years afterward, she was still suffering from the injury, and had been disabled from pursuing her vocation for nearly a year. Reid, a recovery of $2000 was not excessive.</p> <p>8. -: Loss of Time: Evidence: Harmless Error. In an action for personal injuries where evidence concerning the salary paid to plaintiff was received, although the petition did not allege loss of time or earnings, such evidence, whether rightly admitted or not, will not work a reversal of the judgment, where the jury were not authorized in the instruction on the measure of damages to assess damages for loss of time or earnings.</p>

Louis City Circuit Court.- — No». Matt. Q-. Reynolds, Judge. (1) The relation of landlord and tenant is established, not by virtue of occupancy of the premises, as the respondent contends, but by the plaintiff: hiring the premises to the defendant, who can occupy them or not as he sees fit. i McAdam on Landlord and Tenant, p. 52.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) Gardner’s contract under date of September 28, 1906, to pay as a part of the purchase money, the' deed of trust dated September 29, 1905, executed by L. I. Finegan, for the sum of $2500, as shown by the contract of purchase, and his confirmation of that contract and further contract under date of October 8, 1906, as contained in the deed of the Euldng Realty Co., to him, made the debt his own; and his attempted…

Louis City Circuit Court. — Eon. Win. M. Kinsey, Judge. (1) The law of the State where the contract was made governs even though the contract is to-be performed in another State. Otis Co. v. Railroad, 112 Mo. 662; Reed v. Tel. Co., 135 Mo. 661; Hartmann v. Railroad, 39 Mo. App. 88; Crouch v. Railroad, 42 Mo. App. 248; Nenno v. Railroad, 105 Mo. App. 540; Townsend and N. D. G-. Co. v. Express Co., 133 Mo. App. 683.

Louis City Circuit Court. — Hon. Robert M. Foster, Judge. (1) The demurrer to the evidence should have been sustained: (a) Because there was no evidence whatever of any negligence on the part of the defendant, or anybody else, contributing to the plaintiff’s alleged injuries. The doctrine of res ipsa loquitur does not apply here; negligence cannot be inferred from the mere striking of one wagon by the other. Some negligent act on the part of defendant must be proven.

Louis County Circuit Court. — Eon. J. W. McJElhinney, Judge. (I) The description of the property was not a true description or so near as to identify same, consequently the lien must fail and suit against the owner dismissed. R. S. 1899, secs. 4203, 4207; Williams v. Porter, 51 Mo. 441; Wright y. Beardsley, 69 Mo. 548; Matlack y. Bare, 32 Mo. 262; Oster y. Rabeneau, 46 Mo. 595; Mayes y. Murphy, 93 Mo. App. 37; Planing Mill y. Christophel, 60 Mo.

<p>MECHANICS’ LIENS: Kirkwood Mfg. & Sup. Co. v.'Sunkel, Ante, followed.</p>

<p>1. TRIAL PRACTICE: Dismissing Appeal from Justice’s Court: Improper to Exercise Jurisdiction when Appeal Dismissed. On an appeal from a justice’s court to the circuit court in an attachment suit, where the appeal was dismissed for lack of jurisdiction in the circuit court in consequence of the justice from whom the appeal was taken having no jurisdiction, it was improper to overrule a motion filed by appellant to establish the priority of his lien, since that act was an exercise of jurisdiction.</p> <p>2. JUDGMENTS: Conclusiveness. A judgment entry must be taken to express the true ruling of the court.</p> <p>3. ATTACHMENT: Jurisdiction: Misnomer of Defendant. In attachment, jurisdiction over the subject-matter is obtained by the levy thereon of a writ properly issued, and no matter what error or irregularities may subsequently occur, the res remains in the grasp of the court, and its judgment in regard thereto will be valid until reversed or set aside in a direct proceeding for that purpose; and hence an attachment levy on property was not void because defendant, a married woman, was sued by her maiden name.</p> <p>4. -: Priority of Liens. The levy not being a nullity, one subsequently bringing attachment could not acquire priority, under section 415, Revised Statutes 1899, where he knew when he levied his writ that the other plaintiff had sued and levied on the property, and knew the amount of claim and did not think of opposing the attachment, or that he could do so, until after he had ascertained the mistake in defendant’s name, when he seized on the mistake as a means to obtain a lien prior to the other plaintiff’s, which he had previously endeavored to get out of the way by a settlement.</p>

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) If the grantor desired to restrict the use of the lot for dwelling purposes to a single family, apt words for that purpose could have been used. A restriction will not be extended by implication to some other matter not within the words of the provision. Pank v. Eaton, 115 Mo. App. 171; Sanders v. Dixon, 114 Mo. App. 229; 1 Jones on Real Property, p. 601, sec. 735.

Louis City Circuit Court. — Eon. Wm. M. Kinsey, Judge. (1) The plaintiff had a lien on Mrs. Ellson’s cause of action from the time of his employment, and this lien continued until it was merged in the judgment- — • the formal finding of the court of the amount of her interest in the estate of G. T. Dunn, deceased, and no notice of this lien was required to be served on any person. The filing of the same with the clerk of probate court imparted notice. It was fixed by law.

<p>1. APPELLATE PRACTICE: Abstract: Sufficiency of. Under court rules 14 and 15, providing that, where a case is brought up by a full written transcript, the plaintiff in error shall deliver a copy of his abstract of the record to defendant in error and file copies with the clerk, and that it shall contain a complete index and must set forth so much of the record as is necessary to a complete understanding of all questions presented for decision — that is an abstract of the record proper and all matters of exception, a statement containing no reference as to when a bill of exceptions was filed, no exceptions to rulings on evidence, or on instructions, or to overruling a motion for new trial, save an exception to overruling the demurrer to the evidence at the close of plaintiff’s case, and no summary of pleadings, except a reference to some of the counts in the petition, following which is a synopsis of the testimony for plaintiff and defendant, and this followed by a heading “Assignment of Errors” and then by the heading “Argument, Points and Au: thorities,” is not an abstract such as is required by said rules.</p> <p>2. -: Necessity of Exception to Overruling of Motion for New Trial. Where no exception is saved to the overruling of a motion for a new trial, the appellate court will not review proceedings at the trial nor notice any errors not appearing in the record proper.</p> <p>3. -: Non-Compliance with Rules: Affirmance of Judgment. Where, under court rules 14' and 15, there is no abstract of the record, the absence of which would authorize the dismissal of a writ of error, and in addition there is a failure to except to the overruling of the motion for a new trial, and the judgment is sustained by the petition and is in accordance with the issues, the judgment will he affirmed.</p>

Louis City Circuit Court. — Eon. Jamos E. Withroio} Judge. (1) The contract is mutually binding on both parties. Laclede Const. Co. y. Iron Works, 169 Mo. 137; Williams y. Railroad, 112 Mo. 463. (2) The court erred in excluding the contract from evidence in the case. See authorities under point 1.

<p>1. APPELLATE PRACTICE: Conclusiveness of Court's Finding Under Conflicting Evidence. The findings of the chancellor on conflicting testimony -will ordinarily be followed on appeal, though the court on appeal is not bound thereby.</p> <p>2. LIFE INSURANCE: Action on Policy: Interpleaders: Equitable Proceeding. Where a benefit order, sued on a certificate by the beneficiary named therein, pleaded that the member attempted to change the beneficiary by making the certificate payable to his minor children instead of his wife, and a'sked that the wife named as beneficiary in the original certificate and the curator of the children interplead, and the wife averred that at the time of the attemped change the member was not of sound mind, and the curator claimed the certificate by virtue of the attempted change of beneficiaries, the cause became a suit in equity, and the controversy should be determined according to equitable principles.</p> <p>3. CONTRACTS: Construction: Effectuating Intent: Equity. Where the intention of the parties to a contract is clearly manifest or can be ascertained with reasonable certainty, equity will carry it out, though the form of its expression may be defective, either in non-compliance with some specific rules or even conditions of the law itself.</p> <p>4. LIFE INSURANCE: Fraternal Beneficiary Association: Change of Beneficiary: Non-conformity to Rules. The rules of a beneficiary order required that the name of the beneficiary should be given in every benefit certificate issued, and that if the member desired to change the beneficiary he could do so by forwarding to the sovereign camp his certificate with a request written thereon, giving the name of the new beneficiary. A member, who did not have the certificate, executed an instrument asking for a change of beneficiaries so as to make the certificate payable to his children, instead of to his wife, and asking for a new certificate. The instrument was sent to the sovereign camp, and it returned the same with the statement that it was necessary that the request for a change of beneficiaries be filled out on the official blank of the order, a copy of which was inclosed. The member died before the instrument from the sovereign camp was received. Held, (1) That while the form in which the change of beneficiaries was attempted to be made was not strictly in accordance with the rules of the order, it was substantially as required by them; (2) That equity, as between the original and new beneficiaries, will enforce the intent of the member to make the change of beneficiaries, though death intervened before he could conform to the rules and formally express his intention.</p> <p>5. -; -: -: - — : Failure of Order to Object. The failure of a fraternal beneficiary association to insist on the form required by its rules and by-laws for a change of beneficiaries does not bind parties claiming under the rules of the order.</p>

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) The foundation of a republic is tbe virtue of its citizens. Marshall v. Railroad, 16 How. 314; Trist L. C., 214, Hughes’ Datum Posts, p. 102; Oakley v. Da-' vies, 58 Tex. 141; cases stated in Newcomb. (2) National morality depends upon religion.

Louis City Circuit Court. — Eon. Geo. G. Eitchcoch, Judge. (1) The merits of the plaintiff’s case are not proper subjects of inquiry on a plea in abatement, and the plea in abatement must be determined before the other issues are tried. Jordan v. Railroad, 105 Mo. App. 446; Commission Co. v. Block, 130 Mo. 668; Chouteau v. Broughton, 100 Mo. 406; Sauerwein v. Champagne Co., 68 Mo. App. 29; Byler v. Jones, 79 Mo. 261.

Louis City Circuit Court. — Hon. Eugene MeQuillm, Judge. (1) The doctrine of cav'eat emptor does not apply to the case at bar. McLean y. Martin, 45 Mo. 393; Wilchinsky v. Cavender, 72 Mo. 192; 25 Am. and Eng. Ency. Law (2 Ed.), p. 844, note d. (2) If a careful purchaser has been led into mistake by the conduct of the seller, the court should not hold the sale void. Owsley v. Smith’s Heirs, 14 Mo. 153; Swartz y. Dryden, 25 Mo. 572; 24 Cyc. 41.

Louis City Circuit Court. — Hon. Matt. G-. Reynolds, Judge. (1) Tbe error which appellant assigns is that the trial court took the case from the jury by sustaining a demurrer to the evidence. The case is one showing that the defendant had not furnished its employee, the plaintiff, with a reasonably safe place in which to do his work. This duty is oue the master cannot delegate. Jones y. Packet Co., 48 Mo.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The demurrer to the evidence offered by the defendant at the close of the case should have been sustained as the evidence showed that plaintiff’s intestate, Mary F. Kelly, had no insurable interest in the life of the insured, and hence, the assignment to her was invalid. Whitmore v. Supreme Lodge, 100 Mo. 36; Huesner v. Insurance Company, 47 Mo. App. 336; Insurance Company v. Bichards, 99 Mo.

Louis City Circuit Court. — Eon. Jas. E. Withrow, Judge. (1) Since the plaintiff was the son of insured and in possession of the policy and premium receipt book, the judgment should have been for him and not for defendant. Wilkinson v. Metropolitan Life Ins. Co., 63 Mo. App. 404; Wilkinson v. Metropolitan Life Ins. Co., 64 Mo. App. 172; Floyd v. Prudential Ins. Co., 72 Mo. App. 455; Thomas y. Prudential Ins. Co., 158 Ind. 463; McCarthy v. Metropolitan Life Ins.

Charles Circuit Court, — No». Jas. 'D. Barnett, Judge, (1) After the affidavit for an appeal was made and the appeal bond approved by Justice Frey, his jurisdiction over the case ceased. Ostmann had done all the law required him to do. If the learned prosecuting attorney of St. Charles county desired an affirmance of the judgment he could have presented a copy of the record below and asked for an affirmance.

<p>1. INJUNCTIONS: Staying Proceedings: Operates on Parties and not on Court. An injunction granted to stay proceedings in a court of law does not operate as a restraint on such court in 'the exercise of its jurisdiction, but operates upon the parties to the action or ministeral officers of the court.</p> <p>2. -: -: Judge Will not be Restrained. An injunction will not be awarded to restrain a judge in the exercise of judicial functions.</p> <p>3. JUSTICES' COURTS: Restraining Execution: Injunctions. An injunction will not lie to restrain a justice of the peace issuing an execution, his act in doing so being judicial.</p> <p>4. INJUNCTIONS: Staying Proceedings: Adequate Remedy at Law. An injunction to restrain a sale under an execution issuing from a court or on a judgment given without jurisdiction will not be awarded, for the reason an adequate remedy at law exists, which may afford complete relief.</p> <p>5. -: -: -: Replevin. An injunction will not lie to restrain further proceedings by a constable on an execution levied by him, though the execution was issued after the judgment was suspended by a perfected appeal and the levy was under such circumstances that the constable would not be liable for damages; there being an adequate remedy at law, by replevin, for the property.</p>

— Mon. James D. Barnett, Judge. (1) The court erred in giving to the jury instruction No. 9 on behalf of defendants. The instruction is erroneous in that it places the burden on plaintiff to disprove the plea of justification set up in the answer.

— Hon. B. 8. Byors, Judge. (1) If different proofs are required to sustain the two actions, a judgment in one is no bar to the other. Warder v. Henry, 117 Mo. 541; Garland v. Smith, 164 Mo. 22; Callahan v. Davis, 125 Mo. 35. The same rule applies to a plea of another action pending under the statute. Rodney v. Gibbs, 184 Mo. 10.

Louis City Circuit Court. — Hon. Hugo Huench, Judge. (1) The finding and verdict and judgment are for tbe plaintiff on each of the seven counts alleged in plaintiff’s amended petition, although there was a failure of proof upon each of the causes of action alleged in each of said counts of plaintiff’s amended petition. Ingwerson v. Railroad, 205 Mo. 328.

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. • (1) (a) The contract in this case was an agreement for a period of two years with the right reserved to the defendant to terminate the same at any time upon reasonable notice to appellant that the price and service were not satisfactory, (b) There was no termination of the contract, (c) The defendant at the time of the sale of its business to the Merrill Drug Company, and subsequently thereto, expressly recognized…

Louis. City Circuit Court. — Eon. Geo. O. Eitchcoch, Judge. (1) The proper judgment in replevin, where defendant has the property in his possession, is that defendant return the property or pay the assessed value at the election of plaintiff. E. S. Mo. 1899, sec. 4476; Gulath v. Waldstein, 7 Mo.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) An exclusive agency does not deprive the owner of tlie right- to find a purchaser or obligate him to pay a commission, if he sells his own property without the aid of the broker. Packing Co. v. Farmer’s Union, 55 Cal. 606; Waterman v. Boltinghouse, 82 Cal. 659; Moses v. Bierling, 31 N. Y. 462 ; Schoenmann v. Whitt, 136 Wis. 332; Stensgaard v. Smith, 43 Minn. 11.

■ Appeal from St. Louis City Circuit Court. — Hon. Geo. H. Williams, Judge. (1) Under the modern law a banting corporation is fully entitled to protect and to enjoy its good name and reputation against attack and injury by written or printed defamation, impairing public confidence in its conduct, as is a private individual. State v. Boogher, 3 Mo.

<p>1. INSTRUCTIONS: Ignoring Facts. An instruction which ignores a concession of fact made hy the party requesting it is properly refused.</p> <p>2. BANKS: Evidence: Admissions: Entries in Passbook. Where an entry in a bank depositor’s passbook was canceled by the •bank on first detecting it, and the evidence tended to show it was erroneous, it could not be regarded as an admission by the bank.</p> <p>3. -: Action by Depositor: Evidence: Entries in Passbook. In an action against a hank by a depositor for a balance claimed to be due him on his account, entries in his passbook proved to have been made by the bank’s officers make a prima facie case in his favor.</p> <p>4. -: -: Instructions: Singling out Facts. Where, in an action against a bank for a deposit, it appeared the bank canceled its entry in the depositor’s passbook on first detecting it and offered testimony to prove the entry was erroneous, an instruction that the entries made by the bank on the depositor’s passbook were admissions by the bank that the amounts so entered were deposited by the depositor, was erroneous, because giving undue emphasis and weight to the entry.</p>

Louis Court of Criminal Correction.— Hon. Wilson A. Taylor, Judge. The information fails to allege facts sufficient to constitute any offense against the laws of the State of Missouri, in this that it fails to allege that defendant tvas the owner, proprietor, lessee or keeper of the building. Yall v. Snow, 100 S. W. 1; Johnson y. Snow, 102 Mo. App. 233.

Louis City Circuit Court. — Eon. Eugene MeQuillin, Judge. Statement. — Tbe defendant in this case, with his wife, left their home in St. Louis about the 12th of June, 1908, for a trip to Europe, on the day of the accident, June 25th of that year, being in Germany. Defendant was the owner of an automobile and he had in his employ as chauffeur one Conley, who was left in charge of the machine and under pay of the defendant during the absence of defendant.

Louis City Circuit Court. — Hon. Geo. H. Williams, Judge. (1) A final settlement made in the prohate court is equivalent to a final judgment and can be vacated only for the causes for which any other final judgment can be vacated. This would be true of the judgments fixing the appropriation for support which would involve a consideration, necessarily of the earnings of the ward, the amount of the estate, and his position in society, and wants and necessities.

Louis City Circuit Court. — Hon. RoM. M. Foster, Judge. The pleadings of the interpleaders, either and both, will not sustain a verdict for the following reasons: The pleadings fail to show a transcript.of a judgment from the justice’s court or the circuit court. This applies to both interpleas. The interplea of Jared W. Young fails to show that the judgment was filed in the circuit court by Annie Haliburton and fails to show that it was ever revived.

<p>GUARDIAN AND WARD: Final Settlement: Conclusiveness: Collateral Attack. Where the claim of a ward for wages received while working for others and turned over to the guardian was not included in the final settlement of the guardian, the judgment approving the settlement must be attacked directly, and not collaterally, as by an action by the ward against the administrator of the deceased guardian.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The rule that goods delivered in good order to an initial carrier, are presumed to continue so until they get into the possession of the carrier which delivers them- at the place of destination in a damaged condition cannot apply to highly perishable property. Flynn v. Railroad, 43 Mo. App. 424; Hull v. St. Louis, 138 Mo. 618; Lin v. Railroad, 10 Mo. App. 125; Crouch v. Railroad, 42 Mo.

Louis City Circuit Court. — 3on. J. Hugo Grimm, Judge. (1) An order affirming a judgment of a lower court without a trial de novo, for mere failure of the appellant to appear can only be based on a statute. State v. McCarthy, 4 R. I. 867; 3 Cyc. 412. 1. There is no statute authorizing such affirmance. Section 4075 of the Revised Statutes 1899, does not apply, because, (a) The defendant gave notice of the appeal. Holloman v. Railroad, 92 Mo. 286.

Louis City Circuit Court. — Eon. Moses E. fS'aie, Judge. (1) “Where the facts are in dispute or more than one inference can be drawn therefrom the question of the employee’s negligence is for the jury, as is the cause of the injury, and whether the servant acted within the scope of his employment.

— Hon. Ohas. D. Stewart, Judge. (1) Plaintiff’s instruction one is erroneous, (a) In instruction number 1, the court declares that plaintiff was a passenger. He was riding free and the defendant was paying him for his services at the time he was upon the train. He worked in the forenoon, he worked that afternoon, he was an employee and not a passenger. He comes within the rule laid down by this court in St. Clair v. Bailroad, 122 Mo. App. 519.

Louis City Circuit Court. — Eon. Geo. E. Williams, Judge. The agent is personally bound when be contracts in Ms own name or when be does not disclose bis principal, or when be exceeds bis powers. 1 Am. and Eng. Ency. of Law, pp. 1122, 1124; Central Law Journal, vol. 70, p. 49; Carpet Co. v. Crawford, 127 Mo. 356; Potter v. Bassett, 35 Mo. App. 417; Hamlin v. Abell, 120 Mo. 188; Hovey v. Pitcher, 13 Mo. 191; Blakeley v. Benecke, 59 Mo. 193; Sessions v. Block, 40 Mo.

— Son Chas. D. Stewart, Judge. (1) The appellant complains of the instructions generally and especially instructions Nos. 6 and 9.

— Hon. Chas. D. Steioart, Judge. (1) Any contract, the making of which is induced by the fraud of either party, practiced upon the other at the time the contract was made, or while negotiations in regard to it are being carried o,n, is voidable, and may be rescinded at the election of the party defrauded.

Louis City Circuit Court. — Eon. Geo. E. Williams, Judge. Held: owned or controlled by said defendant corporation, together with all rights and contracts, with full authority to operate and manage the same under the direction of the court; that all the officers, managers, agents and employees of said defendant hotel company, .and that defendant J. Wm.

<p>DRAMSHOP KEEPER: Local Option Election: Conviction After Adoption of Local Option Law for Offense Committed Before Its Adoption. This case involves the same questions of law determined in State v. Walker, 129 Mo. App. 371, and is determined in conformity with the opinion therein rendered.</p>

— Hon. Chas. D. Stewart, Judge. (1) When the transcript of a justice’s judgment is filed in tlie office of the clerk of the circuit court it becomes as a judgment of the circuit court, its life and efficacy being the same. Tracy v. Whitsett, 51 Mo. App. 149. (2) One of the ways of giving life and carrying into effect a judgment of the circuit court is by instituting a suit thereon before the period of limitation has expired, which is ten years.

— Hon. Olías. D. Stewart, Judge. (1) The court erred in giving to the jury instruction No. 6 on behalf of defendants, (a) This instruction wrongfully excludes the jury from considering the admissions of defendants arising from the failure of defendant Brown to answer or respond to the two letters written to him by plaintiff in the latter half of December, 1906. 1 Ency. of Ev., pp. 359, 361; Learned v. Tillotson, 97 N. Y. 1, 48 Am.

Louis City Circuit Court. — Hon. Eugene MeQuillin, Judge. (1) The insurance company, not having issued a policy of insurance on the life of Edgar B. Woodward, had no such interest in the note herein sued for, as would entitle it to maintain replevin therefor. If the International Bank of St. Louis was not the bona fide owner for value, then the Woodward & Tiernan Printing Oo. is entitled to possession of the note, and not the insurance company.

<p>1. APPELLATE PRACTICE: Revivor: Foreign Executor: Statute. Where plaintiff in error died, the action could not he revived in the name of his personal representative, a foreign executor, under Laws 1905, page 95, where there was no showing that the laws of the state where deceased died, nor those of the state where the cause of action accrued, authorized such executor to prosecute the action in his name.</p> <p>2. -: Appeal from Order Overruling Motion to Tax Costs: Necessity of Bill of Exceptions. Where a bill of exceptions is not filed, exceptions to the action of the trial court in overruling a motion to tax costs are not before the appellate court for review, and the presumption always being in favor of the regularity and correctness of the action of the trial court, its judgment will be affirmed.</p>

Louis City Circuit Court. — Ron. Virgil Rule, Judge. (1) The court erred in overruling the defendant’s demurrer to the evidence, (a) Because there was no proof of delivery of any specific amount of the flooring, (b) Because there was no proof of a specific price or of the reasonable value of the goods delivered. Such proof is essential or the judgment will be reversed. Rose v. Rubeling, 24 Mo. App. 369; Siegel v. Howard, 13 Mo. App. 588; Rottmann v. Pohlmann, 28 Mo. App. 399.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. The court erred in refusing to give, at the close of all the testimony, the instruction in the nature of a demurrer to the evidence offered by defendant and refused by the court. Bowen v. Railroad, 95 Mo. 277; Herbert v. Ferry Co., 107 Mo. App. 287; Forbes v. Dunnavant, 198 Mo. 193; McGinnity v. Reservoir Co., 155 Mass. 183; O’Connor v. Rich, 164 Mass. 560; Adasken v. Gilbert, 15 Am. Neg.

— Hon. David H. Eby, Judge. (1) The position of the plaintiffs is that the title to real estate is not involved in this action. A suit in equity to enjoin the sale of real estate under a deed of trust on .the ground that the debt has been paid is not an action involving the title to real estate. Gay v. Savings and Bldg. Assn., 149 Mo. 606; Bonner v. Lisenby, 157 Mo. 165; State ex rel. v. Bearing, 180 Mo. 53; Christopher v. Home and Sav. Assn., 180 Mo. 568.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. ' (1) (a) The words “all liens” in the letter of November 7, 1907, set out in appellant's statement, means the right to file liens, as well as the actual filing thereof, without regard to the previous negotiations between Gatlin and Mr. Duncan, agents of the respondent in procuring the loan, on one hand, and appellant on the other. Douglass v. Zinc Co., 56 Mo. 388; Morgan v. Campbell, 22 Wall. 390.

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. (1) The court erred in striking from the files the amended answer of defendants filed November 9, 1908. Because the motion was not in writing. Sec. 640, R. S. 1899. (2) The court erred in refusing to permit defendants to file their amended answer on November 11, 1908.

— Eon. Ghas. D. Stewart, Judge. (1) The court erred in overruling the objection to the introduction of evidence, upon the ground that the information did not charge an offense under the statute; and in overruling a motion for a new trial, which, challenged the sufficiency of the information. The information fatally departs from the statute. Laws 1907, p. 231, sec. 2; State v. Clark, 122 S. W. 665.

Louis City Circuit Court. — Eon. Geo. E. 'Williams, Judge. (1) The cause of action was properly pleaded, it being in tort and arising from a breach of a contractual obligation. Everett v. Railroad, 214 Mo. 54; O’Brien v. Transit Company, 212 Mo. 59. (2) Without the contractual relation existing between the parties, the critical condition of the appellant’s health, of itself, imposed an obligation on respondent commensurate with the dangers to which she was exposed.

— Hon. James D. Barnett, Judge. (1) The court, erred in refusing to instruct the jury that there could be no recovery for punitive damages, for the reason that the petition itself does not allege either malice or wantonness. (2) Plaintiff’s instructions numbers 2 and 3 are erroneous in that they authorize a verdict against Henry Ostmann, Sr., without regard as to whether or not he acted in concert with his co-defendant.

Francois Circuit Court. — Hon. Olías. A. Killian, Judge. (1) A contract must be stated with reasonable certainty or it will be void.. And if memorandum is incomplete as to any essential part, parol evidence cannot be received to supply sucb omission. Ringer v. Holtzelaw, 112 Mo. 523; Dunham v. Hartman, 153 Mo. 629; Buck-man v. Dry Goods Co., 91 Mo. App. 463, and cases cited.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) It was the duty of tbe court to point out the competent and incompetent parts of the deposition, and to exclude the incompetent parts. Hamilton v. Scull, 25 Mo. 165. The objection to the introduction of the deposition was timely, under section 2906, R. S. 1899, objections to incompetency and immateriality can be urged at any time. Rule 19, rules St. Louis Circuit Court, p. 14.

Louis City Circuit Court. — Eon. J. Hugo Grimm, Judge. (1) The subscription contract entered into between the various subscribers was a valid contract. It was not unilateral. The promises of each subscriber to the-' other were sufficient consideration. These promises were made to each other for the benefit of the corporation. Railroad v. Crow, 137 Mo. App. 461; Business Men’s Association v. Williams, 137 Mo.

— Hon. Jas. D. Barnett, Judge. (1) The court erred in permitting the plaintiff to testify to conversations with the agent at Perry, Missouri. All such conversations were merged into the written contract. Ingwerson v. Railroad, 103 S. W. 1143; Henning v. Ins. Co., 47 Mo. 425; Sticks v. Matthews, 75 Mo. 96; Weil v. Posten, 77 Mo. 284; Clements v. Yates, 69 Mo. 623. (2) The defendants are connecting carriers and not partners.

<p>JURISDICTION: Supreme Court: Title to Land: Question involving Construction of Homestead Laws. Where the point of law in issue is whether, under the Homestead Statutes of 1895, the heirs of a deceased took the homestead in fee, free from the demands of creditors of decedent, or whether it was subject to he sold for his debts, a question of title to real estate is involved, and hence the Supreme Court has jurisdiction of the appeal.</p>

<p>Appeal from Monroe Circuit Court. — Eon. David E. Eby, Judge.</p> <p>(1) The amended petition was not a departure. “There are two tests which determine whether a second petition is an amendment or new cause of action. First, whether the same evidence will support both petitions; and, second, whether the same measure of damages will apply to both. If these questions are answered in the affirmative it is an amendment; if in the negative, it is a substitution.” Liese v. Meyer, 143 Mo. 547; Burnham, v. Tillery, 85 Mo. App. 453; Grigsby v. Barton County, 169 Mo. 221; B'oecker v. Milling Company, 101 Mo. App. 136. (2) The original petition was a suit on a judgment and defendant brought in on a summons. The amended petition declares on the same judgment. The same proof is required to support both and the dropping of unnecessary words from the prayer of the amended petition makes no change in the cause of action. (3) The rule as to amendments or changes in the prayers to petitions is liberal. Thus, in an action for a breach of contract of marriage, aggravated by seduction, changing prayer for relief in the petition from one for damages caused by the seduction to one for damages for breach of contract to marry, is an amendment and not a change of the cause of action.” Liese v. Meyer, 143 Mo. 547; see also Howard v. Shirley, 75 Mo. App. 150.</p>

— Eon. Jos. J. Williams, Judge. (i) The petition of plaintiffs does not state facts sufficient to constitute the cause of action attempted to be stated. The petition alleges an oral agreement to sell the land to Casey, and further that the oral agreement was not in writing, which agreement set up in the petition is within the Statute of Frauds and could not have been enforced by plaintiffs, hence, they had no right of action against defendant. Brentman v. N. Y. City Ct.

— Eon. Chas. D. Stewart, Judge. (1) The court may pass over a person whose relation to the decedent would otherwise entitle him to preference because of his unsuitableness for the trust. Cholers Succession, 39 La. Am. 308, 1 So. 820; Stearns v. Fiske, 18 Pick., p. 24; Fitzgerald v. Smith, 78 S. W. 1050.

Louis County Circuit Court. — Hon. John. W. MeElhinney, Judge. (1) Where the allegation of the cause of action or defense to which the proof is directed is unproved, not in some particular or particulars only, but-in its entire scope and meaning, it shall not be deemed a case of variance, but a failure of proof. R. S. 1899, sec. 798.