Volume 149 — Missouri Appeal Reports

Knox Circuit Court. — Hon. Chas. D. Stewart, Judge. (1) There is no allegation in the second count of the petition that holes or pools in the creek were filled up. The plaintiff attempted to specify the injuries to his land and cannot go outside of those stated. Pinney v. Berry, 61 Mo. 359.

— Hon. Henry C. Riley, Judge. (1) The defendant, on account of the condition of its track at the north end, was unable to receive plaintiff’s shipment earlier than it did, and it had the right to decline to receive his cattle for shipment until it could transport them.

— Hon. David H. Eby. Judge. (1) The sale of the eggs in controversy was consummated through a series of telegrams and letters. No time of delivery was mentioned. If there was no custom then the plaintiff would have to deliver the eggs within a reasonable time. Under the undisputed evidence, however there was a universal custom and usage understood by all people engaged in the commission business.

— Eon. Chas. D. Stewart, Judge. ^(1) The court erred in admitting any evidence, over defendant’s objection, on fourth count of plaintiff’s petition, wherein it is attempted to be charged that defendant accused him of forgery. It is therein simply alleged that defendant stated that plaintiff had changed a contract which is not sufficient to charge forgery.

— Hon. Henry G. Riley, Judge. (1) A railroad may take less than one hundred feet for a right of way but not more. R. S. 1899, sec. 1035; Railroad v. Railroad, 135 Mo. 549; Leisse v. Railroad, 72 Mo. 561, 2 Mo. App. 105; Railroad v. Railroad, 138 Mo. 598; Sugar Oo. v. Elevator Co., 82 Mo. 121; St. Louis v. Gleason, 93 Mo. 33.

— Hon. Henry O. Riley, Judge. (1) The law is that the measure of damages in such cases is the difference' between the actual value of the article sold and the price charged therefor. at the place of delivery to the vendee. Black River Lbr. Co. v. Warner, 93 Mo. 374; Whitmore v. Coates, 14 Mo. 9; Rickey v. Tenbroek, 63 Mo. 563; Kingsland v. Iron Co., 29 Mo. App. 526; Holly v. Railroad, 34 Mo. App. 302; Hayner v. Churchill, 29 Mo. App. 676; Miles v. Withers, 76 Mo. App. 91.

— Eon. Eenry C. Riley, Judge. (1) Plaintiff’s petition does not state facts sufficient to constitute any cause of action, and is not sufficient to support the judgment. 26 Cyc. 10, 74; Witascheck v. Glass, 46 Mo. App. 212; Moody v. Deutscli, 85 Mo. 237; Kelly v. Osborn, 86 Mo. App. 239; 13 Ency. PI. and Pr. 427; 3 Am. and Eng. Ann Cas., 720; 19 Am. and Eng. Ency. Law (2 Ed.), 655; Freymark v. Bread Co., 55 Mo. App. 437.

— Hon. Henry O. Riley, Judge. (1) Under this proof it was the duty of the court to give judgment for the plaintiff, and the court erred in not doing so. R. S. 1899, secs. 4115, 4123, 4127, 4128; Belshe v. Batdorf, 98 Mo. App. 627; Williams v. DeLisle, 104 Mo. App. 567; Garroutte v. White, 92 Mo. 237. (2) The court erred in admitting evidence of statements on the part of defendant, made by Sharp as to the scope of his authority in dealing with plaintiff’s farm.

— Eon. David E. Blair, Judge. (1) There can be no recovery where there is no actual partnership, unless there is a holding out of such partnership and the sale made in faith and belief of such partnership. Halo v. Mayer, 102 Mo. 93; Rimel v. Hayes, 83 Mo. 201; Thompson v. Bank, 111 U. S. 530, 28 L. Add. 507; Bissell v. Ward, 129 Mo. 439. (2) The mere participation in profits or the mere acquiring of an interest is not sufficient to constitute a partnership inter se.

— Hon. J. G. Sheppard, Judge. (1) Where a defendant denies an allegation material to the plaintiff’s case, the burden is on the plaintiff to establish its truth, whether the action be in contract or in tort. 16 Cyc. 928; Merchant v. Manion, 97 111. App. 43; Piper y. Matldns, 8' Kan. App. 215; Kenton Ins. Co. y. Osborne, 51 S. W. 306; Ford v. Oil Co., 32 N. Y. App. 596, 53 N. Y. S. 48; 1 Greenleaf on Evid., 107; State to Use y. Martin, 18 Mo.

<p>Appeal from Shannon Circuit Court. — Eon. W. N. Evans, Judge.</p>

— Hon. Henry O. Riley, Judge. (1) The testimony was that the sale was made by the bartender. The defendant and his bartender’s testimony was that the bartender was instructed not to sell to minors and that this instruction was given in good faith with the intention of having said instruction carried out. This testimony was undisputed and constituted a perfect defense in this case. State v. Me Canee, 110 Mo. 398; State v. Webber, 111 Mo. 204; State v. Meadows, 106 Mo.

<p>Appeal from Pemiscot .Circuit Court. — Hon. Henry G. Riley, Judge.</p>

— Eon. David E. Blair, Judge. (1) The court erred in overruling defendants’ demurrer in the nature of an instruction at the close of plaintiff’s testimony. Chaney v. Bailroad, 176 Mo. 598; Halloway v. Kansas City, 184 M'o. 19; Warner v. Railroad, 178 Mo. 125; Asphalt & Granitoid Construction Co. v. Transit Co., 102 Mo. App. 469; Deckerd v. Bail-road, 111 Mo. App. 117; McGrath v. Transit Co., 197 Mo. 105; Dorrell V. Sparks, 127 S. W. 103; McCarthney v. Ins. Co., 45 Mo..

<p>Appeal from Greene Criminal Court. — Eon. Alfred Page, Judge.</p>

— Hon. Henry C. Riley, Judge. (1) This information fails to lay the offense within the' time limited by law, and on, the trial the State failed to show facts which would bring the prosecution within the exception of the Statute of Limitations, and is, therefore bad, and is barred by the statute. State v. English, 2 Mo. 182; State v. Meyers, 68 Mo. 268. (2) The court erred,in admitting incompetent, immaterial, irrelevant and illegal testimony.

— Eon. Alfred Page, Judge. (1) Plaintiff’s statement does not state facts sufficient to constitute a cause of action. Railroad y. Kimmel, 58 Mo. 85. (2) Plaintiffs cannot sue on one cause of action and recover on another. The original statement was intended for an account stated. Koegel v. Givens, 79 Mo. 80. The amended statement is an account current. Cole v. Armour, 154 Mo. 351. Plaintiff must recover on the action pleaded or not at all.

— Hon. Henry O. Riley, Judge. (1) Tbe plaintiff was not entitled to recover in this case, and the court ought to have sustained the demurrer to the evidence. Eads v. Railroad, 43 Mo. App. 536; Berry v. Railroad, 124 Mo. 254; Chilton v. Railroad, 114 Mo. 88; Younger v. Judah, 111 Mo. 303. (2) A regulation by a carrier requiring passengers to purchase tickets before entering trains, is a reasonable regulation.

— Bon. W. N. Evans,Judge. (1) The contract and the correspondence show that plaintiff; is not entitled to recover, therefore defendant’s instruction No. 2, directing a verdict for him should have been given. Big 4 Realty Company v. Clark, 123 S. W. 95; Mo. Ejdson Electric Co. v. Bry, 88 Mo. App. 136; Trust Co. v. York, 81 Mo. App. 342; Robinson v. Easton, 93 Col. 80, 27 Am. St. Rep. 167; Keene v. Demelwan, 172 Mass. 17, 51 N. E. 188.

<p>Appeal from Scott Circuit Court. — Hon. Henry G. Riley, Judge.</p>

<p>1. ATTACHMENT: Debt Fraudulently Contracted: Sufficiency of Evidence. To sustain the ground of attachment that “the debt sued for was fraudulently contracted,” the evidence was to the effect that defendant had purchased three mules from plaintiff and had promised to send a check in payment for the same on his return home, and that defendant failed to send the check. EM, that this evidence showed a breach of contract and not such a false representation as to constitute a debt fraudulently contracted on the part of the debtor within the . meaning of section 366, R. S. 1899 of the Attachment Act.</p> <p>2. FRAUD: Misrepresentations. A representation to constitute in law a fraud, must relate to an existing fact as distinguished from a promise and the representation regarding the existing fact must be relied upon.</p>

— Ron. Renry C. Riley, Judge. (1) Defendant’s motion to dismiss the appeal should have been sustained. There was no appeal bond and the plaintiff cannot cure this defect by giving simply a cost bond, as was done in this case, especially after a motion is made to dismiss for want of an appeal bond. R. S. 1899, sec. 4060; Devor v. Stacker, 49 Mo. App. 547; Kelm v. Hunkier, 49 Mo. App. 664; Moulder & Simpson v. Anderson, 63 Mo. App. 34; Littlefield v. Lemley, 75 Mo.

<p>Appeal from Stoddard Circuit Court. — Eon. J. L. Fort, Judge.</p>

— Hon. Henry O. Riley, Judge. (1) Under the facts in this case the court erred in holding that the diamond was baggage. Hubbard v. Railroad, 112 Mo. App. 474; Saunders v. Railroad, 62 C. C. A. 528; N. Y. Railroad v. Fraloff, 100 Ú. S. 24, 25 Law Ed. 531; Whitmore v. Caroline, 20 Mo. 518; 4 Elliott on Railroads (1 Ed.), secs. 1646, 1647. (2) It was the duty of the plaintiff under the facts in this case to have disclosed to the baggage agent the contents of her suit case.

<p>Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.</p>

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

— Eon. W. N. Evans, Judge. (1) The Constitution abolishing the Fellow-Servant La.w in that State took effect on the day that the Constitution was adopted by the people. 8 Oyc. 744 ; State v. Kyle, 166 Mo. 287. (2) Duncan, the section foreman, was as clearly the vice-principal of defendant as ever such fact occurred in any case.

— Eon. Henry G. Riley, Judge. (1) Tlie plaintiff must recover on the cause of action stated in his petition, and not on one stated in his reply. Moss v. Fitch, 212 Mo. 504; R. S. 1899, sec. 609; Rhodes v. Lbr. Co., 105 Mo. App. 314; McMahill v. Jenkins, 69 Mo. App. 280; Crawford v. Spencer, 36 Mo. App. 82; Mohney v. Reed, 40 Mo. App. 109; Stepp v. Livingston, 72 Mo. App. 179; Jackson v. Powell, 110 Mo. App. 252; Hill v. Mining Co., 119 Mo. 30; 18 Ency.

Louis Circuit Court. — Hon. Warwick Hough, Judge. (1) The broker must be the procuring cause of the contract on which he depends for his recovery. It will not suffice for his act to be one of a chain of causes producing the contract; for it must be the procuring cause or, as it has been said, it must be the causa causans. Ramsey v. West, 31 Mo. App. 676; Mead v. Arnold, 131 Mo. App. 222; Newton v. Richie, 75 Iowa 91; 23 Am. and Eng. Ency. Law (2 Ed.), 911.

— Eon. J. G. Sheppard, Judge. (1) In order to justify a recovery for negligence, it must be shown that defendant owed a duty to protect plaintiff from the injury of which he complains; that the duty was not performed, and that the injury to plaintiff resulted from the failure to perform the duty. Shaw y. Goldman, 116 Mo. App. 332, 92 S. W. 165; Wheeler v. Railroad, 66 Mo. App. 260; Loehring v. Construction Co., 118 Mo.

Charles Circuit Court. — Hon. James D. Barnett, Judge. (1) The demurrer to the evidence should have been sustained; because there was no negligence shown on the part of the defendant, the plaintiff having failed to prove the negligence charged in the petition. E. S. 1899, secs. 1119, 1120; Thomas v. Eailroad, 109 Mo. 187; Herbert v. Boot & Shoe Co., 90 Mo. App. 305; Nugent v. Milling Co., 131 Mo. 241; Goransson v. Mfg. Co., 186 Mo. 300; Browning v. Railroad, 106 Mo.

Louis City Circuit Court. — Hon. Daniel G-. Taylor, Judge. (1) The court erred in not finding that the satisfaction piece was voluntarily made and operated as a bar to plaintiff’s recovery. Court erred in not finding that the execution of the satisfaction piece and the placing of the same upon record or the delivery thereof to defendant amounted to an executed gift of plaintiff to the defendant.

— Hon. Henry O. Riley, Judge. (1) The petition would have had to allege, either that the gate was opened by defendant, its servants, agents or employees, that defendant knew it was open or that it had been open so long that defendant should have known it was open and should have had it closed. Litton v. Railroad, 111 Mo. App. 140; Railroad v. Kavanaugh, 163 Mo. 54. (2) The court should have given defendant’s instruction in the nature of a demurrer to the evidence.

— Eon. D. E. Blair, Judge. (1) Even if the record discloses negligence on the part of the appellant, and we claim it does not, it is still true that its violation of duty does not render it liable for an injury resulting from the injured person’s own negligence in failing to stop and look and listen, before going upon appellant’s track, as to bar him of recovery and his negligence continued up to the time of the collision. Asphalt Co. v. St. Louis Co., 102 Mo.

— No». J. L. Fort, Judge. (1) There was no casual connection shown between the things complained of and the accident. There was an entire failure of proof as to the proximate cause. Foley v. McMahan, 114 Mo. App. 442; King v. Railroad, 211 Mo. 1; Coin v. Lounge Co. (Mo.), 121 S. W. 1; St. Clair v. Railroad, 34 S. W. 76; Evans v. Railroad, 17 Mo. App. 624; Lowry y. Railroad, 40 Mo.

— Hon. Henry C. Riley, Judge. (1) There was a variance between the allegations and the proof. R. S. 1899, sec. 655. (2) It is clearly shown that the contract, if any, was not an original undertaking whereby the debt was created, but was collateral, and within the Statute of Frauds. R. S. 1899, sec. 3418; Rottmann v. Pohlmann, 28 Mo. App. 399; Osborn v. Emery, 51 Mo. App. 408; Crain Co. v. Pierce, 106 Mo. App. 200.

— Hon. Henry G. Riley, Judge. (1) Issues cannot be raised or disposed of by instructions which are hot made by tbe pleadings. Koenig v. Railroad, 173 Mo. 724; Nugent v. Milling Co., 131 Mo. 257; Merrett t. Poulter, 96 Mo. 237; McQuillin on Instructions, sec. 71; State ex rel. v. Land Co.,. 161 Mo. 673; Webb y. Carter, 121 Mo. App. 155; Link v. Yaugbn, 17 Mo. 585; Bircber v. Boemler, 204 Mo. 563,.

— Eon. John T. Moore, Judge. (1) Plaintiff’s letters plainly show that he did not intend to relinquish all further claim as owner and the evidence shows that the defendant never assumed ownership with all its liabilities. England v. Mortland, 3 Mo. App. 490; Kerr v. Haymaker, 20 Mo. App. 350; Cohn v. Reid, 18 Mo. App. 115; Straus v. Kingman, 42 Mo. App. 208.

— Hon. D. E. 'Blair. Judge. (1) The insurance contract being executed here is subject to the laws of Missouri, anything in the contract to the contrary notwithstanding. Cravens v. Ins. Co., 148 Mo. 583; Insurance Co. v. Cravens, 170 U. S. 389; Insurance Co. v. Cohen, 170 Mo. 262. (2) The plaintiff and the defendant, Pearl. L. Haven, having been divorced by the judgment and decree of the court, plaintiff was and is entitled to change the beneficiary in the policy of insurance.

— Hon. Henry C. Riley, Judge. (1) The rule in this State is that no action can be brought against an heir, devisee, legatee or next of kin, on a claim or demand against the decedent which the creditor might have recovered from the executor or administrator. 2 Woerner’s Amer. Law on Administration (2 Ed.), 1265, 1266; Titterington v. Hooker, 58 Mo. 593; Pearce v. Calhoun, 59 Mo. 274; Crowley v. Mc-Crary, 45 Mo. App. 350.

— Eon. J. L. Fort, Judge. (1) The water which was carried through the ditch being surface water, defendant was not liable for diverting the same, unless such diversion was done in a reckless or unskillful manner. Thompson v. Railroad, 137 Mo. App. 62; Mehonray v. Foaster, 132 Mo. App. 229; Beauchamp v. Taylor, 132 Mo. App. 92; Johnson v. Railroad, 111 Mo. App. 378; Abbott v. Railroad, 83 Mo. 280; Jones v. Railroad, 18 Mo.

<p>APPEAL AND ERROR: Motions: Bill of Exceptions: Dismissing Appeal from Justice Court: Exception Must be Taken. If a party wishes to complain on appeal of the action of the circuit court on any motion filed by him or the other party, he must except to the action of the court and preserve his exception by a bill of exceptions. So when the appeal of the defendant from a justice court has been dismissed on the motion of the plain-' tiff, and the defendant filed no bill of exceptions to the action of the court in dismissing the appeal, there is nothing before the appellate court to review. '</p>

<p>1. HABEAS CORPUS: Not a Writ of Course. The writ of habeas corpus is a writ of right, but it is not a writ of course, and is not to be had for the asking. It is not every question, the proper solution of which would result in the prisoner’s discharge, that can be determined in proceeding by habeas corpus.</p> <p>2. -: Appeal and Error: Constitutional Law. A proceeding by habeas corpus cannot be used as a substitute for an appeal or writ of error, although some questions that could be determined on appeal or writ of error, may also be determined in a proceeding by habeas corpus. The constitutionality of a law may be determined in a habeas corpus proceeding.</p> <p>3. -: Local Option Law: Legality of Election. Notwithstanding the statute (section 3581, R. S. 1899), the Supreme Court has held, without mentioning the statute, that one convicted of the violation of the Local Option Law could by habeas corpus test the validity of the adoption of said law (Ex parte Lucas, 106 Mo. 218), and this decision is followed in this case.</p> <p>4. LOCAL OPTION LAW: Notice of Election: Sufficiency of Order Requiring Publication. Where a city council orders the clerk to publish the notice of a local option election, “in some newspaper published in the city” and in pursuance to this order the clerk has the notice published in one of the two newspapers published in the city, and the notice was given general publicity by reason of said publication and the integrity of the election or its result was in no way affected, held, that the election was valid and the order of the council in failing to designate the newspaper was a harmless irregularity. But this holding is held to he in conflict with the ease of State v. Gatlin, 128 S. W. 806, decided by the Kansas City Court of Appeals, and because of the conflict this case is transferred to the Supreme Court.</p> <p>5. -: Constitutional Law. The constitutionality of the Local Option Law has been settled beyond cavil and in prosecutions for its violation the only question open is the question whether this law has been adopted in the territory in -which it is alleged the offense is committed, and this question is one of fact to be proven like any other fáct in the case.</p> <p>6. -: Criminal Law. The question whether the Local Option Law has been adopted remains at all times an open question and may be tested at each successive trial of a party charged with its violation, so there is the possibility of the same court holding in one case that the law has been adopted, and' in another case that it has not been adopted, according to the testimony in each case.</p> <p>7. -: Legality of Election: Sufficiency of Notice. "When a city council or the county court makes an order of publication in the language of the statute, and in pursuance thereto a notice is “published in some newspaper published in the county,” as the statute requires, this should be prima facie good, and before the election could be annulled there should be some showing that the notice had failed of its purpose.</p> <p>8. OFFICERS: Presumptions: Local Option Law. In a habeas corpus proceeding where the validity of a local option election was in question, it was held that the presumption would be indulged that the city council and the city clerk acted honestly and did their duty in regard to the publication of the notice of the local option election.</p>

— Hon. Henry O. Riley, Judge. (1) Defendant was not liable to plaintiff under the issues in this case, as it had a lawful excuse for failing to furnish the cars for plaintiff, and the court should have directed the jury to find for the defendant on the uncontradicted evidence.

— Hon. J. O. SheppardJudge. (1) The mere fact that a pile of lumber fell down upon a man working in defendant’s plant, did not prove, nor tend to prove negligence.

<p>Appeal from Pemiscot Circuit Court. — Eon. George E. Williams, Judge.</p>

Louis City Circuit Court. — Hon, Hugo. Muench, Judge. (1) It was the duty of defendant to keep its wires in a condition not dangerous to human life and to use all usual, available, necessary and reasonable precautions against injury to its employee.

— Hon. J. L. Fort, Judge. (1) When a pass specifies that it must be a continuous trip, then the passenger must remain on the train on which they start until they arrive at their destination; the holder of such ticket is not, after the beginning of the journey, entitled to stop off at any intermediate point and subsequently resume the journey. Walker v. Railroad, 15 Mo. App. 333; Kellett v. Railroad, 22 Mo. App. 356; 6 Cyc.

<p>Appeal from Dunklin Circuit Court. — Eon. J. L. Fort, Judge.</p> <p>(1) The court erred in admitting the testimony of Mrs. T. J. Baird on behalf of the plaintiff, respondent herein. R. S. 1899, sec. 4656; White v. Chaney, 20 Mo. App. 389; Wheeler v. Tinsley, 75 Mo. 459; Reno v. Kingsberry, 39 Mo. App. 240; Flannery v. Railroad, 44 Mo. App. 396; Bank v. Wright, 104 Mo. App. 243; Hardy v. Matthews, 42 Mo. 406.</p>

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

— Eon. J. L. Fort, Judge. (1) The cause did not stand for trial at the March term, 1908, hut as a rule of law stood adjourned until the September term, 1908, of said circuit court. R. S. 1899, secs. 4074, 4075; Nay v. Railroad, 51 Mo. 515; Blakely v. Railroad, 79 Mo. 342; Hawley v. Railroad, 80 Mo. 540. (2) The-jurisdiction of the circuit court in appeal cases from the justices of the peace is derivative. Mason v. Hannah, 30 Mo. App. 190; R. S. 1899, secs. 3835, 4077.

<p>1. APPEAL AND ERROR: Motion for New Trial: Time for Filing, When a trial was had on the 14th day of September and the motion for new trial was not filed until the 20th of September, the motion was not filed in the time required by statute.</p> <p>2. -: -: Exception to Overruling Motion. If the bill of exceptions fails to show that an exception was saved to the overruling of the motion for a new trial the grounds assigned in said motion are not open for review on appeal.</p>

<p>1. VENDOR AND PURCHASER: Vendor’s Lien: Liability of Deceased Purchaser’s Heirs: Pleading: Evidence. In a suit against the heirs of a deceased purchaser of real estate to recover on promissory notes alleged to have been given for the purchase of real estate and to have a lien declared on the land the answer denied under oath the execution of the notes. Held, proper to permit the defendants to show that a note other than the one sued on had been given as the purchase price of the land and that this note had been paid. Heidi further, that unless the notes sued on were given for the purchase price of the land no judgment of any kind should be rendered against the defendants.</p> <p>2. PLEADING: Non Est Factum: Vendor’s Lien: Burden of Proof. The burden of proof in a suit against the heirs of a deceased purchaser of real estate to recover on promissory notes alleged to have been given for the purchase price of the land and to have a lien declared on the land, the answer was a plea of non est factum. Held, that the burden was upon the plaintiff to prove the execution of the notes and that they were given for the purchase price of the land upon which the lien was sought.</p> <p>3. EVIDENCE: Witnesses: Practice: Objecting to Testimony. Where the witness is competent for any purpose a general objection against the witness testifying should be overruled.</p> <p>4'. PRACTICE: Declaration of Law. When a case is tried by the court without a jury the purpose of declarations of law is that the appellate court may know the theory upon which the case was tried in the lower court.</p>

— Hon. Henry G. Riley, Judge. (1) There never was an agreement on the part of the defendant to furnish plaintiff cars, and the court erred in so finding. Lucky v. Railroad, 133 Mo. App. 589; Railroad v. Arnett, 88 S. W. 448; Railroad v. Cannington, 110 S. W. 965; Gann v. Railroad, 65 Mo. App. 670; Cangas v. Mfg. Co., 37 Mo. App. 307; Egger v. Nesvitt, 122 Mo. 667; Embry v. Hargadine, 127 Mo. App. 383; Mfg. Co. v. Lumber Co., 115 Mo. App. 114; Batavia v. Railroad, 126 Mo.

— Son. J. L. Fort, Judge. (1) The master is not liable for the torts of its servant unless the tortious act of its servant causing injury was done while the servant was in the line of his employment, and acted within the scope of his employment. In this case the conductor had charge of the train, but had no authority, either express or implied, to require the passengers on his train to go forward and aid and assist him in taking care of defendant’s property.

— Hon. Joseph J. Williams, Judge. (1) The statute under which plaintiff sues being a penal statute, must be strictly construed, and the plaintiff must bring his case within the clear terms of the statute before he will be allowed to recover. Burnett v. Telegraph Co., 39 Mo. App. 599; Wood v: Telegraph Co., 59 Mo. App. 236 ; Parker v. Telegraph Co., 87 Mo. App. 553; Rixke v. Telegraph Co., 96 M'o. App. 406; Connell v. Telegraph Co., 108 Mo. 459.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) A deposition may not be read in evidence unless one of tie reasons assigned in tie statute for the admission of said deposition is properly established by competent evidence. Wetherall v. Patterson, 31 Mo. 459; Livermore v. Eddy, 3 Mo. 547; Grinan v. Mockler, 29 Mo. 346; Hollfield v. Block, 20 Mo. App. 331.

<p>Appeal from Pemiscot Circuit Court. — Hon. Henry G. Riley, Judge.</p>

— No». Joseph J. Williams, Judge. (1) The plea of non est factum raises a question of fact, and the burden of proof is on the plaintiff to prove that the defendant signed the note. Edmonston v. Henry, 45 Mo. App. 346. (2) If the discretion of the trial court is wrongly used, the appellate court will not allow the action to stand. Coleman v. Cole, 96 Mo. App. 22. (3) The only question in this appeal is the grounds assigned in the order granting the new trial.

Louis City Circuit Court. — Eon. Robert M. Foster} Judge. (1) Where it appears in an action upon an account that defendant has at all times offered to pay the amount claimed less certain set-offs, interest should be allowed plaintiff on the balance found to be due from the date demand of payment is made. R. S. 1899, sec. 3705, 4493; 22 Cyc. 1514, 34 Cyc. 758; Healy v. Fallon, 69 Conn. 235; Railroad v. Iron Works, 117 M'o. App. 167; Attrill v. Patterson, 58 Md. 245.

— Hon. J. L. Fort, Judge. (1) Where there is no substantial proof of the charge of negligence contained in the petition, the court should sustain a demurrer to the evidence. Waldheir v. Railroad, 71 Mo. 514; Kennedy v. Railroad, 128 Mo.' App. 297; McGrath v. Transit Company, 197 Mo. 97; Feary v. Railroad, 162 Mo. 75; Kane v. Railroad, 112 Mo. App. 650; Bromley v. Lumber Co., 127 Mo. App. 158. (2) The verdict of $5000 should not be permitted to stand.

— Hon. Henry C. Riley, Judge. (1) There is an absolute variance between the plaintiff’s petition and the proof adduced and a judgment for him cannot be sustained. Stix v. Matthews, 75 Mo. 96; Summers v. Rodgers, 90 Mo. 224; Wesley v. Bowers, 58 Mo. App. 422.

— Hon. F. G. Johnston, Judge.' (1) It is settled in this State that when the maker is released, the surety and all subsequent parties to the note are released. Stilwell v. Aaron, 69 Mo. 539; B{rown v. Croy, 74 Mo. App. 466; Story on Promissory Notes, sec. 423.

<p>Appeal from Jackson Circuit Court. — Eon. Hermann Brumbaclc, Judge.</p>

— Eon. John G. Parle, Judge. (1) Agreements by the secretary of a local lodge of a beneficiary association extending a member’s time for payment of dues or assessments beyond the time limited in the member’s contract, are, in the absence of knowledge of such agreements on the part of the general officers, of no binding force on the general body. Knights of Columbus y. Burroughs, 107 Va. 671, 17 L. K. A., n. s. 246; Burke v. A. O. U. W., 136 Mo.

<p>Appeal from Jackson Circuit Court. — Eon. Thos. G. Seehorn, Judge.</p>

— Hon. Thos. G.. Seehorn, Judge. The court should have sustained defendant’s demurrer to plaintiff’s evidence. There was no evidence tending to show negligence on the part of the defendant. Powell v. Railroad, 76 Mo. 80; Commissioner v. Clark, 94 U. S. 284; Bank v. Bank, 10 Wall. 689; Jackson v. Hardin, 83 Mo. 175; Avery v. Fitzgerald, 94 Mo. 207; Long v. Moon, 107 Mo. 338; Moore v. Railroad, 28 Mo. App. 622; Peck v. Railroad, 31 Mo. App. 123; Zurfluh v. Railroad, 46 Mo.

— Hon. G. A. Denton, Judge. (1) Plaintiff was in the stockyards of defendant delivering property that he had sold to one C. L. Smith, and which was to be shipped by Smith from the stockyards over defendant’s road. Acting under Smith’s direction plaintiff was putting the property into a particular pen when in the act of opening a gate, leading to such pen, he was injured. Plaintiff was thus engaged in a transaction in which he, Smith, and defendant were interested.

— Hon. W. O. Thomas, Judge. (1) The court erred in giving instruction No. 1 for plaintiff. Biurnes v. Bangert, 16 Mo. App. 22; Mc-Farran v. Kinney, 22 Mo. App. 554; McClain v. Abshire, 68 Mo. App. 339. (2) The court erred in giving instruction No. 2 for plaintiff. Burnes v. Bangert, supra; McFarran v. Kinney, supra. (3) The court erred in giving instruction No. 3 for plaintiff. (4) The court erred in refusing instruction No. 1 offered by defendant.

— Hon. Thos. J. Seehorn, Judge. (1) The evidence is not sufficient to entitle the plaintiff to recover, and the court erred in refusing to instruct the jury to find the issues in favor of the defendant, as requested at the end of plaintiff’s evidence, and renewed at the close of all the evidence. Zeidler v. Walker, 41 Mo. App. 118; Reiger v. Bigger, 29 Mo. App. 421; Ramsey v. West, 31 Mo. App. 676; Kimherly v. Henderson, 29 Md. 515.

— Eon. Jas. H. Sloeer, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence at the close of plaintiff’s testimony and at the close of all the testimony, for the reason: (a) That the fall of plaintiff’s wife occurred in broad daylight and the obstruction which plaintiff’s wife claims caused the fall was in full view of her. There was nothing to distract her attention.

— Hon. N. D. Thurmond, Judge. (1) The plaintiff was not the real party in interest because the settlement of the loss in full worked a transfer of the right of action to the insurance companies, and therefore the plaintiff was precluded from maintaining the action by section 540, R. S. 1899. Allen y. Railroad, 68 N. W. (Wis.) 873; Cunningham y. Railroad, 51 S. E. (N. C.) 1093; Railroad y. Blunt, 165 Fed. 258.

— Hon. G. A. Denton, Judge. (1) Proof of delay in the transportation of live stock, unaccompanied by proof that it was caused by negligence, does not prove the negligence of the carrier. Clark et al. y. Railroad, 122 S. W. Rep. 318; Standard Milling Co. y. Transit Co., 122 Mo. 258. (2) A shipper, suing a carrier for delay in transporting live stock, has the burden of proving that the delay was caused by the negligence of the carrier. Wright v. Railroad, 118 Mo.

— Hon. Thos. J. Seehorn, Judge. The city is not liable for the unauthorized acts of its contractors in placing improvements such as sidewalks and curbing above an established grade. The evidence showed that the sidewalk and curbing were without authority constructed by the contractor from six to nine inches above the established grade. McQuarter v. St. Joseph, 114 S. W. 1140; Gehling v. St. Joseph, 49 Mo. App. 430; Hall v. Trenton, 86- Mo.

<p>Appeal from Boone Circuit Court. — Eon. A. E. Waller, Judge.</p>

— Son. Samuel Davis, Judge. (1) The court erred in sustaining said motion. The amendment is expressly allowed by article YI, chapter 8, section 663, Stat. 1899. Title, “Amending Pleadings and Proceedings.” (2) The court erred in holding that the above statute did not apply to the present proceedings, notwithstanding section 675 of the statutes, being a part of said article VI. (3) The amendment should have been allowed expressly to avoid the Statute of Limitations.

— Hon. Walter A. Powell, Judge. (1) Plaintiff was legally employed by the school board at a regular meeting by proper resolution in pursuance of which she executed the usual written contract with the school board. She held the necessary teacher’s certificate. R. S. 1899, sec. 9766. The record of the board meeting shows specifically that plaintiff was employed to teach in the high school.

Louis City Circuit Court. — Eon. Moses N. Bale, Judge. The demurrer to the evidence should have been sustained. (a) Because there was no negligence on the part of the defendant shown by the evidence in this case, (b) Because the plaintiff admitted that she signed the release pleaded in bar of the plaintiff’s action and received the consideration, and did not prove, as she alleged, that her signature thereto was obtained by fraud or misrepresentation of any kind.

Francois Circuit Court. — Eon. Chas. A. Killian, Judge. (1) The court erred in not sustaining defendant’s instruction in the nature of a demurrer to the evidence at the close of the entire case. Hawk v. Lumber Co., 166 Mo. 121; Card y. Eddy, 129 Mo. 510, 28' S. W. 979; Stephens v. Lumber Co., 110 Mo. 399; Hester v. Packing Co., 95 Mo. 17; Rains v. Railroad, '71 kilo. 165; Fogarty v. Transfer Co., 180 Mo. 490, 79 S. W. 664.

<p>Appeal from Hannibal Common Pleas Court. — Hon David H. Hby, Judge.</p>

— Hon.t Henry O. Riley, Judge. (1) The appellant had the right to have the trial court review the findings of fact in the light of the evidence adduced and to insist that the judgment should be in its favor on a proper finding of the facts. Berry v. Rood, 209 Mlo. 662. (2) The constant practice in cases of this character is to first ask the trial court to review the findings of the referee, and correct them, where the evidence shows the findings are erroneous.

— Hon. David H. Eby, Judge. (1) An appellant from an order granting a new trial, is required to show in the first instance error only as to the grounds therefor as set out in the ruling of the trial court, the burden being on the respondent to show that the new trial should have been awarded on the other grounds, set out in his motion. Millar v. Car Co., 130 Mo. 523; Candee v. Railroad, 130 Mo. 154; Hoven v. Railroad, 155 Mo. 224; Owens v. Railroad, 110 Mo. App. 320.

— Hon. Henry O. Riley, Judge. (1) That the court erred in overruling defendants’ demurrer and in permitting the plaintiff to offer any testimony on the petition over the objections and exceptions of the defendants at the time, the petition not stating facts sufficient to constitute a .cause of action. The objections that the petition does not state facts sufficient to constitute a cause of action in law or equity can be raised at any time. Hudson v. Cahoon, 193 Mo. 547.

— Eon. R. G. Ranney, Judge. (1) Under sections 5876 to 5893 adopted by the voters, the city had “the power to accept and acquire by gift, devise, purchase or by condemnation proceedings, both within and beyond the territorial limits of the city, the right of way for drains and sewers.”' The condemnation proceedings provided is similar in character to proceedings to condemn a railroad right of way, is summary and speedy, and permits taking possession and construction' as soon…

— Hon. Jas. D. Barnett, Judge. (T) The petition does not state facts sufficient to constitute a cause of action. The petition charges that the engineer carelessly, negligently and suddenly and unexpectedly started his engine forward with an unusual jerk or start and thereby caused the caboose to be jerked, jarred and moved.

<p>Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.</p> <p>(1) The court erred in refusing to sustain the defendant’s demurrer to the evidence. Shaw v. Railroad, 110 Mo. App. 561; Geltz v. Railroad, 38 Mo. App. 579; Briggs v. Railroad, 111 Mo. 168; King v. Railroad, 90 Mo. 520; Jewett v. Railroad, 38 Mo. App. 48;' Backenstoe v. Railroad, 86 Mo. 492; Mitchell v. Railroad, 82 Mo. 106; Hansberger v. Railroad, 43 Mo. 196; Haggard v. Railroad, 63 Mr. 302; Sec. 3839, R. S. 1899. (2) The verdict is not supported by the evidence. The facts and circumstances relied on must constitute substantial evidence and pass beyond the pale of mere possibility or conjecture. Reed v. Railroad, 112 Mo. App. 581; Shore v. Bridge Co., Ill Mo. App. 278; Shaw v. Railroad, 110 Mo. App. 561; Geltz v. Railroad, 38 Mo. App. 579; Perkins v. Railroad, 103 Mr. 52; Yeager v. Railroad, 61 Mo. App. 594; Peffer v. Railroad, 98 Mo. App. 291; Peck v. Railroad, 31 Mo. App. 128. (3) The gist of the action is the negligence of the defendant in failing to ring the bell or sound the whistle, and the burden of proving such negligence is on the plaintiff. The mere fact of killing does not authorize a recovery. Brown v. Railroad, 33 Mo. 309; Smith v. Railroad, 47 Mo. App. 546; Wolf v. Smith, 9 L. R. A. (N. S.) 338.</p>

Louis City Circuit Court. — Eon. Wm. M. Kinsey, Judge. (1) The cause of action in cases of this kind, is not the amount of money paid to satisfy a “judgment,” but the actual loss sustained by plaintiff. Neither the petition nor the proof of plaintiff make any such case, the conduct and condition of the person complaining must be alleged.

— Hon. H. G. Riley, Judge. (1) There was no proof of any negligent handling of the train. Therefore, plaintiff was not entitled to recover. Hedrick v. Railroad, 195 Mo. 121; Portuchek v. Railroad, 101 Mo. App. 52; Erwin v. Railroad, 94 Mo. App. 289; Saxton v. Railroad, 98 Mr. App. 503; Young v. Railroad, 93 Mo. App. 274; Shields v. Railroad, 87 Mo. App. 645; Hite v. Railroad, 130 Mo. 139; Guffy v. Railroad, 53 Mo.

Louis City Circuit Court. — Eon. Eugene McQuillin, Judge. (1) The court erred in overruling the defendant’s demurrer to tbe evidence because there was no evidence whatever of any notice, either actual or constructive, to the master informing the master of the darkness of the stairway. Wojtylak v. Coal Co., 188 Mo. 281; Kelley v. Railroad, 105 Mo. App. 365; Krampe v. Brewing Assn., 59 Mo. App. 277; Pavey v. Railroad, 85 Mo. App. 218; Herbert v. Shoe Co., 90 Mo. App. 305; Mfg.

<p>1. TENANCY IN COMMON: Recovery for Improvements: Good Faith Essential: Improvements Held Not to Have Been Made in Good Faith. Plaintiff purchased a tract of land with the money of his wife and of his stepson, of whose estate he was curator, taking title in the name of himself and wife. After the death of his wife, he set up title to the entire tract, under a claim as tenant by the entirety. For his dereliction of duty in investing the money of his ward and taking title in his own name and thereafter setting up an adverse claim against his ward, he was removed as curator, and in an action by the ward the court decreed a trust in said land and ordered it partitioned between him and his former ward, the partition being made by setting off aliquot parts. Plaintiff retained possession of the land pending the litigation and made improvements on that part of it which was subsequently set off to the infant. In an action to recover for the value of such improvements, held they were not made in good faith and that plaintiff could not recover for them.</p> <p>2. REAL ESTATE: Permanent Improvement Placed on Land of Another: Recovery For: Common Law Rule. At common law, originally, any permanent improvement placed upon the land of another, without the owner’s consent, by one having no interest or title therein, prima facie became part of the realty and belonged to the owner of the fee; but this rule has become modified to the extent of permitting a recovery for permanent improvements made in such circumstance's, if made in good faith and under a belief by the party making them that he had a valid claim or title.</p> <p>3. TENANCY IN COMMON: Recovery for Improvements: Good Faith Essential., In an action by a tenant in common against a co-tenant for improvement placed upon that part of the estate which was subsequently set off to the latter in partition proceedings, plaintiff is not entitled to recover, unless he acted bona fide and in good faith in making the improvements, and Where at the time they were made he claimed to own the entire estate and was contesting the right of his co-tenant in the courts, knowing that part of the purchase price of the land was obtained from funds he had wrongfully diverted from his co-tenant’s estate, of which he was curator, he could not have acted in good faith and is not entitled to recover for such improvements.</p> <p>4. NOTICE: Constructive Notice: Good Faith. One cannot have acted in good faith with reference to a matter, when he has such notice thereof as would put one of ordinary prudence on inquiry.</p> <p>5. TAXATION: Lien of State. The state has a lien for taxes assessed against realty, which may be enforced by an action at law, and the property may be sold on execution after judgment, so as to divest the owner 'of his entire estate.</p> <p>6. TENANCY IN COMMON: Recovery for Taxes Paid: Contribution of Co-Tenant: Good Faith Not Essential. A tenant in common is entitled to contribution from his co-tenant for taxes paid on the common estate, though he was at the time wrongfully claiming title to the whole estate, since by paying taxes he protected his co-tenant’s interest a's well as his own.</p> <p>7. -: -; -; -: Facts Stated. Where plaintiff, who was removed as defendant’s curator for wasting the estate and claiming all of it, when he had only a joint interest therein as co-tenant, was charged with rents while in- possession, for defendant’s interest, in a suit by defendant to'establish a resulting trust in his favor and for partition, justice requires that plaintiff be compensated to the extent of a proportionate part of the taxes paid by him on the joint estate while in possession.</p>

— Eon. James D. Rarnett, Judge. (1) Under the evidence of plaintiff her own contributory negligence was the proximate cause of her injury, and the court erred in refusing to direct a verdict for the defendant, both at the close of the plaintiff’s evidence and at the close of all of the evidence.

— Son. Chas. A. KillianJudge. (1') The court should have sustained appellants motion to quash said information, as the evidence in support of the same, showed that there was pending and undetermined, an indictment against the appellant, filed October 1,1907, and for the same offense charged in the information. The only way to proceed is by indictment. Sec. 2476, Laws 1901, p. 138.

— Eon. Henry G. Riley, Judge. (1) The petition is fatally defective, (a) It fails to charge defendant with' a legal duty to maintain a fence at the point where the cow entered the right of way. Cecil v. Railroad, 47 Mo. 246; Nance v. Railroad, 79 Mo. 196; Hudgens v. Railroad, 79 Mo. 418; Clark v. Railroad, 79 Mo. 419; Asher v. Railroad, 79 Mo. 432; Manz v. Railroad, 87 Mo. 278; Ward v. Railroad, 91 Mo. 168; Wood v. Railroad, 39 Mo. App. 63; Moreland v. Railroad, 17 Mo.

— Hon. Henry C. Riley, Judge. (1) Defendants demurrer to plaintiff’s evidence should have been sustained.

— Hon. David H. Eby, Judge. Statement. — This action was commenced before a justice of tbe peace of Monroe county, upon a note signed by tbe defendants, whereby on or before tbe 1st of October, 1907, they promised, for value received “in one rebuilt Rumley Separator,” to pay to tbe order of tbe Weber Implement Company, $200, with interest at tbe rate of 7 per cent per annum from date of delivery until paid.

— Eon. Henry G. Riley, Judge. (1) Tlie circuit court had no jurisdiction because the petition of the plaintiff fails to state that she was a resident of the State of Missouri, and had resided in this State one whole year next before the filing of her petition, or that the offense or injury complained of was committed within this State, or whilst one or both of the parties resided within this State. R. S. 1899, sec. 2924; Coulter v. Coulter, 124 Mo.