Volume 152 — Missouri Appeal Reports

<p>1. JUDGMENT: 'Judgment by Default: Setting Aside Judgment: Discretion of Trial Court. In a suit against two defendants, one of whom answered and the other (appellant here) failed to answer because he had instructed and been assured that his co-defendant would employ an attorney to look after appellant’s interests, and on the fourth day of the term the suit was dismissed against the defendant who answered, and judgment by default was taken against appellant, who on the sixth day filed a motion to set aside the judgment, which motion was overruled by the trial court; the facts relating to the merits of the case are examined and held that the trial court erred in not setting aside the judgment.</p> <p>2. -: Motion to Set Aside: Filing at Same Term. A motion to set a'side a judgment may be filed any time during the term at which the judgment was rendered.</p> <p>3. -: -: Discretion of Trial Court. The trial court is invested with large discretion in determining a motion to set aside a default judgment, and an appellate court is less apt to interfere when the judgment is set aside than when it is not.</p> <p>4. -: -: -. Where a judgment by default has been rendered and a motion to set the same aside has been filed at the same term, the general rule is that when the defendant discloses a good defense on the merits, and a reasonable excuse for delay is shown and no substantial injury has resulted from such temporary delay,' the court should exercise its discretion in favor of the trial on the merits.</p> <p>5. -: -: -. The discretion that a trial court has with reference to setting aside a judgment by default, is not an arbitrary or capricious one, but legal and judicial, to be exercised in conformity with the spirit of the law.</p> <p>G. —■-: -: -: Defense Must be Shown. Before a judgment by default should be set aside, the defendant must show that he had a good defense on the merits, but the court will not weigh the evidence on the question of the defense with too great exactness, but will take into account the tendency of the evidence, and the probability of the result on the trial upon the merits.</p> <p>7. -: -: Attorney and Client: Attorney Abandoning Case. Where an attorney abandons the prosecution or defense of his client’s cause without notice to such client, a reasonably sufficient length of time should be given to enable the party to* secure other counsel before judgment is rendered against him. The' same rule should be applied where the party has directed his agent to secure counsel and has been assured _ that the case would be properly looked after.</p> <p>8. -: Setting Aside Default Judgment: Imposing Reasonable Conditions. In setting aside judgments by default the court may impose reasonable conditions.</p>

<p>1. PRACTICE: Demurrer to Evidence. Where a defendant offers a demurrer at the close of the plaintiff’s ev’dence, which is overruled, and the defendant then offers testimony, in so doing the first demurrer is waived and plaintiff’s right to recover is to be determined from all the evidence in the case.</p> <p>2. STREET RAILWAYS: Negligence: Contributory Negligence: Collision', With Vehicle: Humanitarian Doctrine. While plaintiff was driving his wagon across a street railway track the vehicle was struck by a street car. Plaintiff from his own testimony was guilty of negligence in failing to' look in both directions for cars, but from defendant’s' witnesses there was evidence tending to show that the motorman might, by the exercise of proper care, have stopped the car after he saw plaintiff in a perilous position. Held, that it was proper to submit the case to the jury under the humanitarian doctrine.</p> <p>3. CONTRIBUTORY NEGLIGENCE: Street Railways: Crossing Track. If a person goes upon a track directly in front of an approaching car, and so close that the servant in charge of the car could not, with the means at hand and with proper regard for the safety of the car and its passengers, have stopped the car and prevented a collision, an injury to such person the company is not liable.</p> <p>4. -: -: -: Humanitarian Doctrine. If a person was guilty of negligence in an attempt to cross the track without looking for an approaching car, but the servant in charge of such car saw the plaintiff in a position of peril, or by the exercise of ordinary care might have seen him in such position in time to have avoided injuring him, and failed to do so, then the company is liable, notwithstanding the negligence of plaintiff.</p> <p>5. STREET RAILWAYS: Negligence: Duty of Motorman: Presumption. A street car motorman has the right to presume that an adult will not undertake to cross the track in front of an approaching car, that when he gets near the track he will stop and look for cars. It is only when the motorman discovers that the traveler does not intend to stop, and is in a position of peril that it becomes the duty of the motorman to attempt to stop his car.</p> <p>G. PRACTICE: Objections to Evidence. As a general rule testimony should he objected to when offered, and it is too late to raise the question of incompetency of the evidence under the pleading to move to have it excluded after it has been admitted without objection.</p> <p>7. PLEADING: Proof: Personal Injuries. In a personal injury case the allegations of the petition are examined and held, sufficient to' authorize the' introduction of evidence that plaintiff’s mind had been rendered weak as a result of his injuries.</p> <p>8. EVIDENCE: Admissions: Rejecting Deposition of Plaintiff: Harmless Error. In a personal injury case it was held error for the trial court to refuse to allow the defendant to introduce plaintiff’s deposition to show in what part of the street plaintiff was driving at the time he was struck by the car, but under the admissions of plaintiff as to what he did state in his deposition and in view of the fact that it was not claimed that he admitted in his deposition that he was on the side of the street that defendant contended he was on, the error in rejecting the deposition was held harmless.</p> <p>9. PLEADING: Negligence: Instructions: Street Railways. In a suit for damages for personal injuries received by plaintiff in being struck by a street car while driving across the track in a wagon, the petition is examined and held sufficient to authorize an instruction submitting to the jury the question of the negligence of defendant’s motorman in failing to stop the car upon discovering plaintiff’s perilous position.</p> <p>10. INSTRUCTIONS: Loss of Time: Damages: Negligence: Personal Injuries. In a personal injury case an instruction given for plaintiff permitted a recovery for the value of time lost and the evidence showed that plaintiff’s wages continued, but that he paid another to work in his place. Held, that the instruction was proper as the amount paid might be considered a loss of time as it was an expense caused by the plaintiff being unable to put in his own time at his work.</p> <p>11. -: Admission Against Interest: Presumptions. It is not reversible error to refuse an instruction to the effect that if plaintiff knowingly made a statement against his interest in the case, the law presumes such statement to be true.</p>

— How. Henry L. Bright, Judge. (1) Municipal corporations only have such powers as aré expressly conferred or fairly or necessarily implied, and such as are essential to the declared objects and purposes of the corporation. Joplin v. Reekie,- 78 Mo. App. 8; Independence v. Cleveland, 167 Mo. 384; St. Louis v. Telephone Co., 9'6 Mo. 623.

— Hon. Henry L. Bright, Judge. (1) It lias been the law in this state for a great many years that where time is the essence of the contract, the city council could not extend the time for completing the work, after the original time mentioned in the contract had expired. Jones v. Paul, 136 Mo. App. 538; Neill v. Gates, 152 Mo. 585; Hund v. Rack- . iiff, 192 Mo. 312; Construction Co. v. Coal Co., 205 Mo. 49.

Louis Circuit Court. — Hon. George H. Shields, Judge. (1) The trial court erred in refusing to give a peremptory instruction to find for defendant on plaintiff’s evidence. Her own evidence showed that her own negligence caused the injury. Sindlinger v. Kansas City, 126 Mo. 315; Wiggins v. St. Louis, 135 Mo. 558; Cohn v. Kansas City, 108 Mo. 387; Wheat v.,St. Louis, 79 Mo. 579; Warner v. Railroad, 178 Mo. 125; Slepp v. Railroad, 85 Mo. 229.

<p>1. CRIMINAL LAW: Practice: Ccmtinuance: Discretion of Trial Court. In passing upon the application of the defendant’in a criminal case for a continuance there is accorded to the trial judge a large discretion, and unless it clearly appears that such discretion has been abused to the prejudice of the rights of the defendant, an appellate court will not interfere. The overruling of the application for continuance in this case is upheld.</p> <p>2. CONTINUANCE: Absence of Witnesses: Diligence: Discretion of Trial Court: Criminal Law. Defendant in a criminal case filed an application for a continuance, alleging the absence of two witnesses. It appeared that one witness had been sick for some time and there was no showing why his deposition was not taken. The other witness had been subpoenaed and there was no showing why his attendance was not secured by an attachment. It also devolved at the trial that the testimony of these witnesses as set out in the motion for continuance would have been of no material benefit to the defendant. Held, that the trial court did not abuse its discretion in denying a continuance.</p> <p>S. WITNESSES: Criminal Law: Impeaching Defendant as Witness: Showing Reputation for Similar Offenses. When a defendant offers himself as a witness in his own case his credibility may be assailed by proof of the fact that he bears the reputation in the community of being guilty of offenses against the law analogous to the one for which he is being tried. Hence, in a prosecution for violating the Local Option Law, when defendant became a witness, it was held competent to show that he had the reputation in the community of running a “blind tiger.”</p> <p>4. CRIMINAL LAW: Practice: Asking Questions: Suggestion by Trial Court. It is not improper for a trial court in a criminal case to suggest' to the prosecuting attorney a proper way to ask a question.</p>

Louis City Circuit Court. — lío». Jesse A. McDonald, Judge. (1) The garnishee should have been discharged after its motion to strike out parts of plaintiff’s denial of garnishee’s answer had been sustained and plaintiff refused to'plead further. R. S. 1899, sec. 621; Mumford v. Keet, 154 Mo. 36, 71 Mo. App. 535; MacAdam v. Scudder, 127 Mo. 345.

— Hon. David E. Blair, Judge. The mandate from the Kansas- City Court of Appeals reversing the judgment of the trial court on the non-suit judgment, was filed April 1, 1908, and the present suit was commenced on the 28th day of April, 1908. It is our contention that plaintiff’s case was not barred by the Statute of Limitations, and that this contention is supported by the following authorities.

<p>Appeal from Butler Circuit Court. — Hem. J. G. Sheppard, Judge.</p>

— Non. David N. Blair, Judge. (1) The stipulation in the policy that “No obligation is assumed by the company prior to the date' hereof nor unless on said date the insured is alive and in sound health,” is binding on the parties, and is equivalent to a warranty of the sound health of the insured at the time of the delivery of the policy and' is a condition precedent to the liability of the defendant.

— Hon. B. G. Thurman, Judge. Defendants’ peremptory instruction should háve been given and the court erred in refusing it when offered at the close of plaintiffs’ case and again when it was offered at the dose of all the evidence. Arnold v. St. Louis, 152 Mo. 173; Marcheck v. Klute, 133 Mo. App. 280; Glaser v. Rothschild, 221 Mo. 180; Parker v. Publishing Co., 69 Me. 173; Pierce v. Whitcomb,_ 18 Vt. .127; Ryerson v. Bathgate, 67 N. J. L. 337; Shaw v. Goldman, 116 Mo.

Louis City Circuit Court. — No». J. Hugo Grimm, Judge. (1) The court erred in overruling defendant’s challenges of jurors Marshall, Metzner, Orr, Penseneau and Hennessy, on the ground that each of them had served on a jury in said court within twelve months next preceding the trial of this case. Williamson v. Transit Co., 202 Mo. 365; R. S. 1909, sec. 7342. (2) The court erred in giving to the jury plaintiff’s second instruction.

— Hon. Jesse G. Sheppard, Judge. The court erred in sustaining the defendant’s motion to quash the indictment herein, as said indictment sufficiently informs the defendant of the offense with which she was charged. R. S. 1899, see. 2197; State v. Bregard, 76 Mo. 32A; State v. Raymond, 86 Mo. App. 537; Sherwood’s Commentaries on Criminal Law, 668.

— Hon. Thos. J.' Seehorn, Judge. (1) Plaintiff’s petition stated no cause of action for the reason that it showed on its face that the eon-tract relied on and for recovery in both, counts of petition showed expressly that it called for work to be done on Sunday, which was in express violation of.the statutes. See sec. 2240' and 2243, R. S. 1899. Tbe court will take judicial notice that the 12th and 19 th of April, 1908, were both on Sunday.

- — Eon. C. A. Mos-man, Judge. (1) It stands admitted that defendant is a fraternal beneficiary association, organized in Nebraska, and doing business, at the time it issued the certificate sued on, in Missouri, as an assessment insurance company, within the meaning of article 3, chapter 119., Revised Statutes of Missouri, 1899, and not governed by the general insurance law of the state. Hanford v. Mass. Ben.

— Hon. Wm. H. Martin, Special Judge. (1) The court erred in permitting the petition, after, it had been adjudged insufficient, to be read to the jury or any testimony to he introduced thereon, and erred in proceeding with the trial of the case. Sec. 592, R. S. 1899; Sec. 593, R. S. 1899; Henderson v. Dickey, 50 Mo. 161; Stevenson v. Judy, 49' Mo. 227; Childs v. Railroad, 117 Mo. 414; Harris v. Railroad, 51 Mo. App. 125; Zeideman v. Molasky, 118 Mo. App. 123.

<p>1. RAILROADS: Personal Injury: Physical Facts. If the testimony for plaintiff in an action for personal injury is contradictory to physical facts and to common knowledge of men, it does not offer an issue of fact, apd a demurrer to the evidence should he sustained.</p> <p>2. -: -: •-: Epilepsy: Fits. W. left his home at 3:2'5 a. m. in April intending to take a train which passed at 3:55. His road led across the railway tracks (three in number) at one-half mile from the station and he was run over by the train while on the last track. There was evidence tending to show that he was afflicted with a disease which caused him sometimes to become unconscious and to suddenly fall in a fit, and that he fell on the track in such a fit on this occasion; but it was held, that the evidence supporting such view was not of such strength as to justify the court in taking the case from the jury.</p> <p>3. -:-: -: Evidence: Unreasonable. W. was injured at a railway crossing before daylight in April. There were three tracks, one fifty yards from a double track. He testified that he stopped, looked and listened at the first track and did not hear or see a passenger train then due. That at the first one of the double tracks he again stopped, looked and listened, and neither hearing nor seeing anything, he crossed, and again stopped, looked and listened at the last track, and still did not see or hear a train. That he then stepped on the track and in two or three seconds heard the loud noise of the train, which immediately struck him. That there was no headlight, and that though the cars were well lighted he did not see any light. Held, That such evidence was contrary to common experience of men and too unreasonable for belief, and- that a peremptory instruction to the jury to find for the railway should have been given.</p>

— Ho». L. J. Eastin, Judge. (1) The written notice served on the city was defective, and therefore defendant’s demurrer should have been sustained. R. S. 1899, sec. 5724; Cardner v. City of New London, 28 Atl. R. 42; Larkin v. Boston, 128 Mass. 522; F’religh v. Directors of Sogrates, 70 Hun. 589, 24 N. Y. Sup. 182; Donnelly v. City of Fall River, 132 Mass. 299; White v. Stowe, 54 Vt. 510; Lilly v. Town of Woodstock, 59 Conn. 219', 22 Atl.

- — Hon. N. D: ■ Thurmond, Judge. (1) The answer does not set np or plead a license from W. B. Hunt to build the culverts and dispose of the water from the north side of the railroad in the manner adopted by the defendant company; neither is there any waiver or estoppel so pleaded. Such a defense was not available to the defendant in the absence of a pleading properly tendering such an issue.

— Hon. Nat. M. Shelton, Judge. (1) The court erred in giving instruction No. 2 by instructing the jury to find for plaintiff without requiring them to find that the plaintiff was the procuring cause of the sale. Russell v. Poor, 133 Mo. App. 723; Meade v. Arnold, 131 Mo. App. 214; Eamsey v. West, 31 Mo. App. 676; Eeal Estate Co. v. Eeal Estate Co., 129 S. W. 419. (2) The court erred in not instructing the jury to find for the defendant.

<p>.1. FRAUD AND .DECEIT: Remedies. Where one is induced to enter into a contract by false and fraudulent representations, he has two remedies at law, which are: First, a prompt rescission of the contract and a recovery of whatever money or property he gave on account of the transaction, or second, stand on the contract and recover damages for the tort committed by the fraud.</p> <p>2. Contracts: Rescission. Plaintiff was induced, by false and fraudulent 'misrepresentations to exchange a note and some money for the note of a third party, endorsed by defendant. After the fraud was discovered, plaintiff demanded of defendant the payment of interest on the latter note, and said nothing about rescinding the trade, nor did he tender back said note and demand the return of the note and money given defendant. Held, that plaintiff waived the fraud and elected to stand by the contract.</p> <p>3. -: Pleading Proof. In order to maintain an action at law for fraud and deceit in an exchange of property, it is necessary to plead and prove that the right to rescind was exercised and a return of the property received tendered.</p>

<p>. 1. RAILROADS: Killing Animals: Maintaining Fences. Plaintiff’s cow went through, a gap in the fence on the right of way of defendant, wandered along the tracks, passed over a cattle-guard and was struck by an engine at a crossing and killed. The gap in the fence was made by defendant in repairing a nearby trestle, • and therefore had actual knowledge of the gap a reasonable time, after the necessity for taking down the fence at that point, had elapsed. Held, that the demurrer to the evidence was properly overruled.</p> <p>2. -: -: Pleading and Proof. The statute (sec. 3145, R. S. 1909) makes it the duty of a railroad company to erect and maintain lawful fences on tne sides of its road, and where a petition alleges that defendant “failed and neglected to erect and maintain lawful fences on the sides of its railroad” and the proof shows a failure “to maintain a lawful fence,” there is no variance between the pleading and proof.</p>

— Eon. L. J. Eastin, Judge. The hoard of managers of state hospital No. 2 had the right to remove Dr. Kuhn as superintendent for “incompetency, willful neglect or refusal to discharge any of his duties, or for any other misconduct which might render it unfit for him to remain in his office.” See. 4850, R. S. 1899. The only limitation upon this right is that he must have reasonable notice of the charges preferred and he given an opportunity to he heard in his own defense.

<p>1. HUSBAND AND WIFE: Alienation of Affections: Instructions. In an action for damages by a husband, for the alienation of the wife’s affection, it was error for the trial court to include in an instruction purporting to cover the whole • case, a direction for a verdict on the hypotheses that illicit relations, between the wife of plaintiff and her paramours, including defendant, were merely acts of common prostitution known to the husband and forgiven by him, as this was a matter for the. consideration of the jury under proper guidance by the court.</p> <p>2. -: -: -. Where a wife voluntarily gives her affections to another, the latter doing nothing wrongfully to win such affections, no action can be maintained. Mere proof of abandonment and that the wife maintained improper relations with the defendant is not sufficient. It must be established that he was the enticer.</p> <p>3. Instructions: Specific Objection. The trial court may with propriety call upon counsel during the trial to máke objections to instructions, specific, but such practice should not be used as a technical device to foreclose the right of the defeated party to have substantial errors reviewed in the appellate court.</p>

<p>Appeal from Andrew Circuit Court. — Ho». Alonso D. Burnes, Judge.</p>

<p>Appeal from Jackson Circuit Court.- — Hon. Jas. E. Goodrich, Judge.</p>

<p>1. FOOD PRODUCT: Artificial Coloring: Statute. A section of a statute enacting that no vinegar should be artificially colored or flavored, followed in the same chapter by another section inflicting a punishment.for a violation of such section, is a prohibition on such coloring or flavoring and one violating it is properly convicted.</p> <p>2. -: Police Power: Labels and Brands. ■ A statute absolutely prohibiting the coloring or flavoring of vinegar is a valid exercise of the police power of the Legislature. And the fact that the vinegar is colored may be branded or labeled on its receptacle, will not relieve one who sells it from the penalty of the statute.</p> <p>3. -: -: Harmless: Liability to Deceive: Fraud. The fact that coloring matter put into articles of food is harmless, does not prevent the Legislature from forbidding it, if the acts are of such character as to make it difficult to determine whether they are committed for an innocent or a harmful purpose.</p> <p>4. -:-: -: Taste: Prejudice: Authority to Prohibit: Quaere. Many articles of wholesome and nutritious food are at first obnoxious and require cultivation of taste to become palatable; and the authority of the Legislature to absolutely prohibit the manufacture and sale of such articles on the ground that a present prejudice exists against them so as to render them objectionable, is questioned.</p> <p>5. -: -: -: Right to Color: Attractiveness. In the absence of a probability of deception and fraud upon the public, a manufacturer or merchant may render his merchandise more beautiful or attractive by harmless artificial coloring.</p>

<p>1. MOTION FOR NEW TRIAL AND IN ARREST: Exception. Where the record shows the trial court made a single ruling in overruling both motion for new trial and in arrest of judgment, and that but one exception was taken, such exception is not sufficient, and the bill of exceptions cannot be considered on appeal.</p> <p>2. -: -. a motion for new trial and a motion in arrest of judgment are two separate matters of procedure, involving distinct questions and requiring sepa'rate adjudication, and the record should show that they have been considered and decided separately; and it is necessary that separate exception should be taken to the ruling on each.</p> <p>¿. -:-:-: Duly Excepted. If the record shows but one exception to the ruling on both motion for new trial and in arrest of judgment, the fact that it characterizes such exception as having been “duly” taken, will not aid it</p>

<p>Appeal from Buchanan Circuit Court. — Hon. L. J. Easiin, Judge.</p> <p>(1) The jury should have been instructed to find for defendaht. There was no evidence, that the automobile was making loud noises, or buzzing, rattling and making frightful and terrifying noises and emitting steam and gasoline odors. The incident could not have happened as plaintiff alleges and testifies. lit must have happened some other way; and the jury should not conjecture that it did in a way to involve negligence- by defendant. Spiro v. St. Louis Transit Go., 102 Mo. App. 250; Hunter v. Railroad, 116 N. Y. 615; Gurley v. Railroad, 104 Mo. 211; Wright v. Crane, 106 N. W. 71; O’Donnell v. O’Neill, 130 Mo. .App. 360. (2) It was error to instruct the jury that the auto driver was guilty of negligence if under the circumstances of this case he fail seasonably to turn to the right. But if it was a proper direction to give the jury,, it should have been qualified by defendant’s instruction “E,” because it would not have been negligent not to turn to the right if plaintiff had taken that part of the road himself, and thereby put himself in the way the auto would have taken by turning to the right. Brooks v. Hart, 14 N. H. 307; Tyler v. Nelson, 109 Mich. 37; Becherle v. Weiman, 12 Mo. App. 354; 18 Am. and Eng. Ency. 580; Needy v. Littlejohn, 115 N. W. 483. (3) The jury should have been discharged. The article represented a transaction in court in this-case, in which was developed a fact the court considered the jury should not know. The reporter who wa.s permitted to' overhear what transpired, and knew the court’s view and order respecting it, went away and printed the fact in his paper and sent it to his subscribers who were members of the jury. The motion to discharge alleges and plaintiff in his objection admits the jurors read the article. It was as injurious to defendant as if introduced by plaintiff on the trial. It was communicated to the jury by one who was permitted by the courtesy of the court, to overhear what was quietly and secretly being done out of the hearing of the jury and in the same room with them. Trent v. Printing Co., 126 S. W. 238; Mann v. Phoenix B. & C. Co. (opinion by this court filed at October term, 1900-, now on rehearing- on other grounds); Sawyer v. Arnold, 38 Alt. 333 ; Anderson v. Duckworth, 162 Mass. 251; Cudahy Pack. Co. v. Skoumal, 125 Fed. 470-. (4) For the like reason the motion for a new trial should have been sustained. It was proved by the affidavit of the manager that four of the jurors were subscribers to the paper and that it was delivered to them. This affidavit was not denied, and while defendant could not file affidavits of jurors that they did read and were affected by the publication, plaintiff could that they did not read it and were not influenced by it. That plaintiff did not have the jurors support their verdict, when he easily could do so and by defendants proof was called upon to do so, raises the presumption that jurors could only have testified against their verdict. 1 Stark, Evid., 54; Blatch v. Archer, Co'wper 63; Com; v. Webster, 5 Cush. 316; People v. McWharter, 4 Barb. 438; Kirby v. Tallmadge, 160' TJ. S. 383; Graves v. U. S., 150 U. S. 121 and cases cited. (5) The verdict is the result of rural prejudice against automobiles inflamed by poison administered by the newspaper article; against the overwhelming weight of the evidence and all reasonable probabilities and should not be allowed to stand.</p> <p>(1) It was not error on the part of the court to refuse to instruct the jury to find for the defendant. There was ample evidence to support the verdict. The contention that upon plaintiff’s testimony the jury were left to conjecture as to how the accident happened is wholly without merit, and is fully and completely answered in third point decided in the case of Setzler v. Met. St. Ry. Co., 127 S. W. 1. (2) The case was properly tried, and the instructions given on the part of the respondent are legal and proper. There were only four instructions given on his part; No. 2 defines the measure of damages; No. 3 tells the jury that nine or more may return a verdict; and No. 4 is simply the form of verdict; so that the only instruction given on the part of respondent is instruction No. 1. It is absolutely in accordance with the law as defined by this court and the Supreme Court, and as contained in the Act of the General Assembly, approved March 19,1907. (Acts 1907, p. 73.) McFern v. Gardner, 121 Mo. App. 1; Hall v. Compton, 130 Mo. App. 675; Ransom y. Union Depot Co., 126 S. "W. 675; Sapp v. Hunter, 134 Mo. App. 685. (3) The complaint in reference to the newspaper article is without foundation. There is no evidence that the article was even seen, read or heard of by any one of the jurors. If the jurors had read it there is nothing’ in it material, or so material as to have a jury,-in the middle of a trial properly conducted, discharged from a further consideration of the case. The appellant does not in his motion allege that any juror read the article, but he simply says that he believes that it was read by them, or a majority of them. There was no evidence before the court to show that any one of these jurors had read the article. The court was decidedly of the opinion that the said article had no influence, and could have no influence on the jury.</p>

— Hon, Francis H. Trimble, Judge. The court of its own motion modified instruction No. 2 as requested by the plaintiff, by adding at the conclusion thereof the words, “But if at the time the mortgage securing plaintiff’s notes was taken the mortgagee, W. H. Gatlin or his agent, had notice of possession, if any, of Roney then it is not material whether .said possession was notorious or not,” the court also gave instruction number four over the objection of the plaintiff and…

<p>Appeal from Jackson Circuit Court. — Ho». Walter A. Powell, Judge.'</p>

— Hon. Nick M. Bradley, Judge. (1) The work was not done in substantial compliance with the ordinance, and the taxbills were therefore void.

<p>Appeal from Randolph Circuit Court. — Eon. A. E. Waller, Judge.</p> <p>(1) The petition is sufficient to uphold verdict. Sec. 672, R. S. 1899'; McKinney v. Northeutt, 114- Mo. App. 160; Howe v. Ins. Co., 75 Mo. App. 66; Bectenwald v. Railroad, 121 Mo. App. 601. (2) Great latitude of discretion rule not applicable to this case. Loftus v. Railroad, 220 Mo. 470. (3) Grounds set out in the order granting new trial insufficient. See. 672, R. S. 1899; Lee v. Dunlap, 55 Mo. 454. (4) The court overruled the grounds in defendant’s motion for new trial. Without exceptions taken and saved they are not here for review. Vastine v. Rex, 98 Mo. App. 93'; Bradley v. Repelí, 133 Mo. 560; Thiele v. Railroad, 140 Mo. 319. (5) Facts outside the case no grounds for reversal. Rowell v. City of St. Louis, 50 Mo. 92. (6) The issue of facts submitted required the jury to find more than was necessary for plaintiffs to recover, if error, were harmless. Rose v. Railroad, S. W. 123, p. 946; Richardson v. Railroad, S. W. 123, p. 27; Harrington v. City of Sedalia, 98 Mo. 588; Houx v. Bet-teen, 68 Mo. 84; Jackson v. German Ins. Co., 27 Mo. App. 162.</p> <p>(1) Instructions Nos. 1, 2, and 3 were erroneous and the court properly set the verdict aside and granted a new trial. There was absolutely no evidence of any new or subsequent agreement. (2) The granting of a new trial is discretionary with the trial court. Lawson v. Mills, 130 Mo. 170;; Bank v. Armstrong, 92 Mo. 265; Noble v. Kansas City, 95 Mo. App. 167;. Yonng v. Ruhwedel, 119 Mo. App. 231; Baughan v. Waterworks Co., 58 Mo. App. 576.</p>

<p>t. RAILROADS: Injuries to Horses. Plaintiff’s blind and ordinarily gentle horse became frightened at the noise of a locomotive, while bein-g driven near the team track of defendant to get a load of freight from a car on the team track, jumped into a deep ditch on the opposite side of the roadway, and was killed. This ditch was not guarded or protected in any way and was only sixteen feet in the clear from the team track. Held, that the issue of proximate cause involved the jury question of whether the injury was solely caused by the dangerous state of the road, or in part was due to an individual defect or vicious propensity in the horse, and the demurrer to the evidence was properly overruled.</p> <p>2. -: Invitees. When one expressly, or by implication, invites others to come upon his premises, whether for business or for any other purpose, it is his duty to he reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.</p> <p>3. -: Jury Question. It was a proper question for a jury to determine whether or not a roadway which, in the clear, was only sixteen feet wide and which, on one side, adjoins a place of horse-terrifying noises and moving objects and on the other side a deep, unguarded ditch, was a reasonably safe road for the purposes of its' intended use.</p>

<p>Appeal from Pettis Circuit Court. — Hon. George F. Long an, Judge.</p>

<p>1. RAILROADS: Negligence: Master and Servant. Plaintiff sued for damages for death of her husband, who, while at work as a section hand, was struck by a rapidly moving passenger train. When struck, his back was toward the approaching train, and his face toward the section foreman. No warning was given by the engineer, and the warning given by the foreman tended to confuse him. Held, that a consideration of all the facts and circumstances, leads to the conclusion that the failure of the engineer to give warning was the proximate cause of his death, and that'the case was properly submitted to the jury.</p> <p>2. -: -: Evidence. Where there is no positive evidence that the engineer did see deceased on the track, but the circumstances show that he must have seen him, the jury might reasonably infer that the engineer did see him when he got upon the track.</p> <p>3. -: -: -: — . Tke admission in evidence of the statement of deceased “How did this thing happen,” after he regained consciousness, was not error, as it worked no prejudice to defendant. It was only a natural inquiry from one who was ignorant of the cause of his injury.</p>

<p>1. MECHANICS’ LIENS: Delivery of Material: Statutory Limitation. A sub-contractor for material bas four months from the time the material is put into the building within which to file his mechanic’s lien account. The limited time named in the statute does not begin to run at the date of delivery to the purchasing contractor. '</p> <p>2. -: -: -. For lien purposes the indebtedness made by the purchase of material by a, sub-contractor from a materialman, becomes the indebtedness of the building, and it does not accrue until put into the building.</p>

Scott Circuit Court. — Hon. Henry C. Riley, Judge. (1) The respondent in its proceeding to form a new district had no authority of law to submit a different proposition to the voters of the different distriets. R. S. 1899, sec. 9744; School District v. Neal, 74 Mo. App. 557; School District v. Smith, 90 Mo. App. 215.

— No». B. G. Thurman, Judge. (1) The court admitted evidence tending to show that after the giving of orders sued on and after the payment by plaintiff of the checks drawn by the partnership of Roley & Co. on account of said orders, that Roley & Co. made deposits in the plaintiff bank in amounts greater than the moneys paid out by plaintiff on Roley & Co.’s checks.

— Hon. Henry L. Bright, Judge. (1) The defendant is not liable for interest from date of rendition of judgment in circuit court, but only from date of payment of the judgment by plaintiff, and the trial court properly so ruled. MunrO’ v. Casualty Co., 96 N. Y. Supp. 705; National Mills v. Marine Co., 28 E. I. 126, 66 Atlantic, 58; Davison v. Casualty Co., 197 Mass. 167, 83 N. E. 407; Henderson v. Casualty Co., 29 Pa. Sup.

Francois Circuit Court. — Eon. Chas. A. Killian, Judge. (1) One of the essential requisites for the protection of a holder of a note is that he shall have taken' it without notice of any defect of title, illegality or fraud that would defeat recovery in the hands of his transferer. Notice is equivalent to knowledge. 4 Am. and Eng. Ency Law, 302.

— lion. Joseph J. Williams, Judge. . (1) Tbe question of casting up and declaring the vote was not the business nor interest of the county. In other words, a special term could not be called,’ unless the business and interest of the county required it. Sec. 1785, R. S. 1899. We’ see no interest, business interest that the county could have in the result of a special election.

Louis Circuit Court. — Hon. G. A. Wurdeman, Judge. (1) The petition does not allege nor the ..evidence prove that at the time the note and check were given,. or at the time they were paid, the facts were such as to constitute duress, and consequently, even if it be held that defendant was not entitled to tbe alleged excess payment, tbe plaintiff, who paid his money with full knowledge of the facts, is not entitled to recover the payment made to defendant.

—Hon. Robert C. Ranney, Judge. (1) The petition shows on its face, and the evidence so developed, that the- steer was killed in Scott county, and that the cause of action arose there, therefore, the only circuit court having jurisdiction of this cause, is the Scott County Circuit Court, and neither the circuit court of Cape Girardeau county, nor the Cape Girardeau Court of Common Pleas has such jurisdiction. R. S. 1909, secs. 4233, 3956, 7395,1754, 7427, 7399.

— Eon. Joseph J. Williams, Judge. (1) All acts of the board of aldermen not within the scope of authority granted them by their organic law are ultra vires, and void. Independence v. Cleveland, 167 Mo. 381; Kirkwood v. Highlands Co;, 91 Mo. App. 637; State ex rel. v. Allen, 178 Mo. 573. (2) It requires á majority of the aldermen elected members of the council to pass an ordinance or a resolution, and the yeas and nays voting therefor must appear in the minute journal.

— Eon. L. B. Woodside, Judge. (1) The petition is insufficient and does not state a cause of action under the statute. 30 Cyc. 1352; Wood v. Telegraph Co., 59 Mo. App. 236; Connell v. Telegraph Co., 108 Mo. 459; State to use v. Railroad, 83 Mo. 144; Parrish v. Railroad, 63 Mo. 284. (2) The statute is penal and must he strictly construed. Cowan v. Telegraph Co., 129 S. W. 1066; Eddington v. Telegraph, 115 Mo. App. 93; Rixke v. Telegraph Co., 96 Mo.

Francois, Circuit Court. — Son. Charles A. Killian, Judge. (1) The petition in this canse is fatally defective for the reason that it 'does not show that plaintiff has any interest in the damages claimed in such petition. R. S. 1899, see. 2864. (2) The right of action being purely statutory, plaintiff must allege and prove every essential fact showing that she is entitled to the benefits of the statute.

Louis City Circuit Court. — lion. ■ ■ George H. Williams, Judge. (1) Defendant’s demurrer, wbicb was- a general demurrer, should not have been sustained, as in order to take advantage of any defect of capacity to sue, same must be done by a special demurrer. Bliss on Code Pleadings (3 Ed.), sec. 409a, pp. 621-622, and sec. 408, p. 620; Baxter v. Transit Co., 198 Mo. 1; Randolph v. Railroad, 18 Mo.

— Hon. Joseph J. Williams, Judge. (1) The court erred in granting the lien for the reason that it is not sustained by either the pleading, law or evidence. Estes v. Alexander, 90 Mo. 458; Throckmorton v. Pence, 121 Mo. 57; Cunningham v. Edsall, 200 Mo. 197; Burkham v. Manewal, 195 Mo. 500; Haarstick v. Babriel, 200 Mo. 237; Rowe v. River Co., 99 Mo. App. 158; Petering v. River Co., Ill Mo. App. 272; Foley v. Boulware, 86 Mo.

Louis City Circuit Court. — Hon. William Mi Kinsey, Judge. (1) The contract has all the elements of a valid contract and is not immoral, nor against public policy, nor against any law or established interest of society. Peltz v. Long, 40 Mo. 532; State v. Preferred & M. Co., 184 Mo. 160; Angelica v. Angelica, 121 Mo. App. 226; O’Day v. Meadows, 194 Mo. 617. (2) Contract to be performed at the death of a given person is not invalid on that account.

— Hon. U. F. Johnston, Judge. (1) The court erred in refusing plaintiff’s instruction A. Upon the undisputed and admitted facts plaintiff was entitled to a peremptory direction to find for it. Thompson v. Massey, 76 Mo. App. 197; Tufts v.' Thompson, 22 Mo. App. 64; Drew v. Drum, 44 Mo. App. 25 ; Bank v. Iron Co., 102 Fed. 755; Peet y. Spencer, 90 Mo. 384; Green v. Conrad, 114 Mo. 651; Collins v. Wilhoit, 108 Mo. 456; In re New York Printing Co., 110 Fed. 514; Thomas Mfg.

— Eon. Wm. H. Martin, Judge. .(1) The cross-walk was built iu accordance with the plans devised by the board of aldermen, and when the legislative body of a city thus adopts •vyhat it conceives to be the best plan for effectuating drainage, construction of cross-walks, or other purposes, according to the means at its disposal, it must follow that the municipality cannot be held civilly liable for any defect in the plans so devised.

— Ron. L. J. Eastin, Judge. (1) No negligence on the part of the driver of the car was shown. (2) The court erred in giving instructions F and G on his own motion for defendant. The automobile is not considered in law as dangerous per se. Huddy on Automobiles (2 Ed.), pp. 24, 29 and 33; 28 Cyc. 25; Cunningham v. Castle, 3 N. Y. S. 1057; Vincent v. Crandall and Godley Co., 115 N. Y. S. 600; Danforth v. Fisher, 75 N. H. 3, 71 A., 535; Lewis v. Amorous (Ga.), 59 S. E. 338.

— Hon. Wm. H. Martin, Judge. (1) The court erred in permitting the plaintiff to testify to conversations and negotiations prior to the execution of the written contract. These were merged in the writing. The written agreement required the plaintiff to pay sixty dollars per acre for the land, the' deed to be made and possession delivered on the first of January, 1909.

— Hon. G. A. Mosinan, Judge. (1) The court erred in its judgment declaring a lien against the improvements owned by Mattie Ozenberger, after finding and adjudging that she was not a party to the contract with respondent for the purchase of tbe materials that entered into the construction of the improvements. Planing Mill Co. v. Chrisophel, 60 Mo. App. 106; State to use v. Hailey, 71 Mo. App. 200; Frost v. Frost, 200 Mo. 481; Holmes v. Kansas City, 209 Mo. 513.

— Hon. N. D. Thurmond, Judge. (1) A real estate broker is ordinarily a special agent of limited authority and he is strictly confined to his instructions. The rule would be as strict against one not a real estate broker. See 19 Cyc. p. 196, sec. C.. If an agent’s employment be by special agreement, his right to compensation will be determined by the terms of the agreement exclusively. 1 Am. and Eng.

— Eon. O. A. Mos-man, Judge. (1) A demurrer to the evidence admits every fact which the jurors might infer if the evidence was before them and should be sustained only when the evidence fails to. make pi’oof of some essential averment. Bine v. Railroad, 100 Mo. 228; Bender v. Railroad, 137 Mo. 240; Franke v. City of St. Louis, 110 Mo. 516.

— Hon. James H. Blorer, Judge. (1) Plaintiff failing to set out the legal effect of the contract sued on failed to state a cause of action and the defendant’s objection to the introduction of any evidence at the beginning of the trial for the reason that plaintiff’s petition did not state facts sufficient to constitute a cause of action should have been' sustained. Mooré & Hunt v. Platte Co., 8 Mo. 471; Penrose v. Life Ins. Co., 66 Fed. 253.

— Eon. Wm. E. Martin, Judge. (1) The trial court granted a new trial on the ground that error was committed in the giving of instructions on measure of damages. There were only two instructions given both for plaintiff, the defendant offering none. A party, as in case at bar, asking no instruction himself on a given branch of the case is in no condition to complain because the instruction is not as full and complete as it might have been. Bank v. Ragsdale, 171 Mo. 168.

— Eon. Sam Davis, Judge. .(1) The court committed error in overruling the demurrer to the evidence and refusing the instruction in the matter of a demurrer offered by the defendant at the close of all the evidence. Schaub v. Railroad, 133 Mo. App. 444; Gumm v. Railroad, 141 Mo.

<p>Appeal from Henry Circuit Court. — Hon. O. A. Denton. Judge.</p>

— Hon. N. D. Thur* mond, Judge. (1) If a broker produces a bona-fide purchaser, that is, a purchaser who is able, ready and willing to perform the contract, upon his principal’s terms, or upon modified terms accepted by the principal, he is entitled to his commissions without reference to the consummation of the sale, unless the failure to consummate it is chargeable to the purchaser, and not to the fault or refusal of the principal. Henderson & Jones v. Mace, 64 Mo.

— Eon. R. 8. Ryors, Judge. (1) Waste is the destruction by the tenant of such things on the land as are not included in its temporary profits. Profit v. Henderson, 29 Mo. 325. (2) Defendant sold farm to plaintiff on January 21, 1910, and on the same day rented it from plaintiff until October 21, 1910, for $75, to be paid at the end of the term, and one-sixth of the crop raised on said land.

<p>Appeal from Buchanan Circuit Court. — Eon. C. A. Mosiman, Judge.</p>

— Eon.. Walter A. Powell, Judge. (1) It wag unnecessary, to constitute a valid lease, that plaintiff’s husband should join with her in the… Held: and is, we think, well settled, that a married woman may convey her real estate without being joined in the conveyance by her husband because under the statute as to her separate estate she is a femme sole. Bank v. Hageluken, 165 Mo. 443. By the statute her disability was removed and her husband’s marital rights swept away.

— Hon. B. Q. Thurman, Judge. (1) The court erred in refusing ■ instruction No. ! on the presumption of payment, thereby requiring defendant to prove payment, out and out. Baker y. Stonebraker, 36 Mo. 338; West v. Brison, 99 Mo. 684; 30 Cyc. 1276. (2) The interruption of counsel in his argument to the jury by the court was unwarranted and highly prejudicial. Evans y. Town of Trenton, 112 Mo. 390.

— Mon. L. J. Mas-tin, Judge. The written notice served upon the city did not meet the requirement of the statute, and the verdict should have been for the defendant, city. R. S. 1899, sec. 5724; Gardner v. City of New London, 28 Atl. Rep. 42; Larkin v. Boston, 128 Mass. 522; Freligh v. Directors of Sogrates, 70 Hun 589, 24 N. Y. Sup. 182; Donnelly v. City of Fall River, 132 Miass. 299; White v. Stowe, 54 Yt. 510; Lilly v. Town of Woodstock, 59 Conn. 219, 22 Atl.

<p>Appeal from Jackson Circuit Court. — Hon. Herman Brumbaoh, Judge.</p>

<p>CRIMINAL LAW: Auction: License: Proprietor: Manager. Where a city ordinance requires a person, firm or corporation, who are proprietors of auction houses, to take out a license, the manager or clerk for such person, firm or corporation is not liable to the penalties of the ordinance for conducting the business without a license.</p>

<p>Appeal from Bates Circuit Court. — Hon. O. A. Denton, Judge.</p>

' — Eon. E. D. Thurmond, Judge. (1) Error was committed by the trial court in giving defendant’s instruction No. 1. The answer, which was read to the jury, and upon which the cause was tried, was simply a general denial; accordingly such an instruction was erroneous. In other words, even though there may be evidence to justify the giving of an instruction, yet' the defendant ‘is not entitled to such an instruction, unless his answer tenders such an issue.

<p>1. FOREIGN CORPORATIONS: License. Tbe statute requiring foreign corporations to take out a license and obtain a certificate to do business in tbis state,, applies to sucb corporations as have a place of business in tbis state in charge of a local agent for tbe purpose of selling goods, which are sent to such agent for the purpose of being thereafter sold to customers, and not to such corporations selling goods through traveling salesmen to be delivered from the foreign house.</p> <p>2. -: -. Where a foreign corporation has no agent and no place of business in this state, and the material in controversy was sold and delivered to the purchaser in a foreign state and used by the latter in the construction of a building in this state, such foreign corporation may maintain an action therefor in this state without first obtaining such license.</p> <p>3. Verdict: Default: A verdict in favor of two defendants, one of whom defaulted, was properly set aside as against the weight of the evidence where the demand against such defendant is well supported and no answer was filed.</p>

Louis City Circuit Court.- — Hon. Eugene MeQuillin, Judge. (1) There is no claim made that appellant had not the lawful right to maintain a switch at the place in question, and there being no evidence that the switch used was an unnecessarily dangerous obstruction, plaintiff made no case for the jury. Morie v. Transit Co., 1.16 Mo. App. 12; Randle v. Railroad, 65 Mo. 835.

<p>1. CONSTABLES: Action on Bond: Liability for Damages by Property in Constable's Custody. A deputy constable arrested some parties charged with the offense of keeping dangerous explosives concealed in a dwelling house. When the arrest was made the parties had in their possession a quantity of dynamite, and the constable took the dynamite and stored it in another building in a thickly settled locality, where, during a fire, it exploded and killed a fireman. In an action on the constable’s bond for the death of the fireman, it is held that the deputy constable acted as a private individual in taking charge of the dynamite, and that the bondsmen were not liable.</p> <p>2. -: -: -. Section 5325, Revised Statutes 1909, does not -make it the official duty of a constable to keep all property that may come into his possession, and unless acquired in some of the manners specified in said' section, the custody of said property is as an individual, and not as an officer, and an action will not lie on the constable’s bond for damages from such property- held by the constable as an individual.</p> <p>3. GUARANTY AND SURETY: Bond: Actions on Bonds. Where the rights of sureties are involved, courts will not extend the construction of an instrument beyond its plain and obvious . meaning. The meaning of this rule is that the surety’s obligation cannot be.extended to other subjects, persons or periods of time than those expressed' or necessarily included in his contract.</p> <p>4. OFFICERS: Bonds: Liability of Surety. The sureties of a public officer are only responsible for his performance of the duties assigned by him by law.</p>

- — Hon. Charles A. Killian, Judge. (1) Whatever duty or obligation rests upon railroad companies- in regard to the construction of fences- or cattle-guards, arises solely from statutes. Gorman v.-Railroad, 26 Mo. 441; Clark’s Adm. v. Railroad, 36 Mo. 221; Busick v. Railroad, 86 S. W. 674; Rowland v. Railroad, 88 S. W. 994. (2) No statute in this state has imposed any absolute liability on railroads for a failure to construct lawful fences and cattle-guards.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The rights of the parties under the policy-note agreement are controlled by the statute as amended by the Act of March 27, 1903, whereunder at least three-quarters of the reserve less existing indebtedness, must be applied to the purchase of extended insurance. In the case at bar, the full value of the reserve, less the admitted indebtedness, was so applied and the term expired before the death of the insured.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) No contract to pay for services will be implied unless the circumstances under, which they were rendered show that such was the intention of the parties at the time. Morris v. Barnes’ Admr., 35 Mo. 412; Bit-trick v. Gilmore, 53 Mo. App. 53; Hayden v. Parson, 70 Mo. App. 493; McQueen v. Wilson, 51 Mo.

— Hon. Joseph J. Williams, Judge. (1) The transfer of the property from Brassel to Block was made subject to the deed of trust sought to be foreclosed and the amount of the indebtedness secured by the deed was considered by the parties as a first lien, and the payment of the interest by Block was a part payment of the indebtedness, and, being within the statute, there is a clear right to a decree of foreclosure.

<p>Appeal from St. Louis City Circuit Court. — Eon. Chas. Claflin} Judge.</p> <p>(1) Where a written contract is shown, evidence of representations . looking to a former different oral contract relating to the same subject-matter is inadmissible. Egger v. Egger, 123 S. W. 937; Biddle on Warranties, sec. 65; Standard v. Fireproofing Co., 177 Mo. 571; Laclede Co. v. Tie Co., 185 Mo. 61; 1 Greenleaf on Evidence, sec. 275; 2 Phillips on Evidence (Edw. Ed.), 637; Tracy v. Iron Works, 104 Mo. 199, 29 Mo. App. 342; Johnson County v. Wood, 84 Mo. 515; Bronson v. Implement Co., 135 Mo. App. 486. (2) Where there is a written contract of sale and warranty, nothing is implied and in the absence of fraud in the inducement, the entire understanding of the parties is merged in the Avriting. The plaintiff therefore, in proving the written contract proved himself out of court. Robinson Co. v. Ligón, 124 S. W. 590; Boyer v. Neel, 50 Mo. App. 35; Pavement Co. v. Smith, 17 Mo. App. 264; Beck & Corbitt v. Holbeck, 10.9 Mo. App. 179; Fairbanks, Morse & Co. v. Baskett, 98 Mo. App. 70.</p> <p>(1) When a contract for the sale and future delivery of an article is made and the article is purchased for a specific purpose known to the vendor, there is an implied warranty that it will be reasonably fit for that purpose. Creasy v. Gray, 88.Mo. App. 459; Comings v. Leedy, 114 Mo. 454; Chapin v. Dobson, 78 N. Y. 82. (2) The reduction of one feature of an entire transaction to writing in part execution thereof does not preclude proof by parol of the other features and the enforcement of the intention of the parties, as evidenced by the whole transaction. Smith v. Pfluger, 2 L. R. A. (N. S.) 783; Walker v. Prance, 112 Pa. St. 203; Cull-man v. Lindsay, 116 Pa. St. 166. (3) The paper in evidence, described by appellant as a written contract, referred to a “Model E. Victor Automobile.” This is not a specific description whose meaning is a matter of common understanding. Therefore, appellant’s assurances that a machine of that designation would be of first class workmanship and material and so constructed as to run noiselessly and over sandy branches, etc., must be taken as part of the description. Pike v. Pay, 101 Mass. 134; Leavitt v. Fiberloid Go., 196 Mass. 445.</p>

Louis Oity Circuit Court. — Hon. James E. Withrow, Judge. (1) Plaintiff was not guilty of contributory negligence as a matter of law, under the evidence, since he took care to see that he would be safe from any car running at a laAvful rate of speed ánd he assumed, as he had a right to do, that cars would not be run at a reckless or unlawful speed. Riska v. Railway, 180 Mo. 168; Weller v. Railroad, 164 Mo. 180; Powers v. Transit Co., 202 Mo. 267; Meng v. Railroad, 108 Mo.

— Hon. James T. Neville, Judge. (1) The agreement between Brown and Pate that Brown would buy bank stock with the $1500 and put it up1 as security for the note was sufficient to create an equitable lien. 31 Oyc. 797; Bispham’s Principles of Equity, 470. (2) The. agreement between Brown and Coffman that Coffman could hold Brown’s stock as security for plaintiff, was sufficient to establish a lien on the stock. Bank v. Trust Co., 135 Mo. App. 366; 31 Cyc. 801.

Louis' City Circuit Court. — Eon. Eugene McQuillin, Judge. The statement filed by the plaintiff is insufficient. It does not comply with the requirements of section 3852, R. S. 1899. Brasheir v. Strock, 46 Mo. 221; Swartz y. Nicholson, 65 Mo. 508; Butts y. Phelps, 79 Mo. 302; Doggett v. Blanke, 70 Mo. App. 499; Bough-ton y. Railroad, 25 Mo. App. 10; Drug Co. y. Johnson, 80 Mo. App. 428; McCrary y. Good, 74 Mo. App. 425; Rechnitzer v. Voglesang, 117 Mo.

Louis City Circuit Court. — Hon. Eugene McQuilUn, Judge. (1) The court erred in overruling defendant’s challenge for cause of jurors on their voir dire for the reason that they had served on a jury within twelve months next preceding the date of trial R. S., 1899, sec. 6547; Williamson v.-Transit Co., 202 Mo. 365. (2) The verdict of the jury is against the evidence and physical facts and the result of passion and prejudice. Lehwick v. Railroad, 118 Mo.

<p>APPELLATE PRACTICE: Jurisdiction: Court of Appeals: Transfer of Cause: Waiver of Jurisdiction. Where a- cause was appealed from a county within the jurisdiction of the St. Louis Court of Appeals, and transferred from that court to ' the Springfield Court of Appeals, under the Act of 1909, page 396, and no appearance was entered, nor hriefs filed in the latter court, the Springfield Court of Appeals, following the holding of the Supreme Court, will not assume jurisdiction, hut will transfer the cause to the St. Louis Court of Appeals.</p>

<p>Appeal from Wayne Circuit Court. — Hón. J. L. Fort, Judge.</p>

Writ of Error to the Jasper Circuit Court. — Hon. Haywood Scott, Judge. (1) A general demurrer is good at any stage of the cause of action. Hyatt v. Association, 106 Mo. App. 610. (2) If'the petition ■ contains two causes of action which are of such character that they cannot 'legally be joined in one petition, demurrer is the proper pleading to reach the irregularity. Lane v. Dowd, 172 Mo. 167; Williams Co. v. Bolivar, 122 Mo. App. 150.

— Hon. Henry L. Bright, Judge. (1) Admissions in tbe proof of death are only prima facie evidence, and when it is shown that they were induced by a misapprehension or that they are contrary to the facts, they should be disregarded. Almund v. M. W. A., 113 S. W. 695; Union Mutual Life Ins. Co. v. Payne, 45 C. C. A. 193,. 105 Fed. 172; Hassencamp v. Ins.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1’) The jurisdiction of probate courts to grant and revoke letters testamentary and letters of administration is exclusive. Art. 6, Constitution of Missouri, sec. 84; R. S. 1899, sec. 1753. (2) The trial in the circuit court on appeal from the probate court is a trial anew of the whole case and the court is invested with power to review every item. In re Boothe’s Estate, 38 Mo.

Louis Circuit Court. — Eon. G. A. Wur deman, Judge. (1) The demurrer to the evidence should have been sustained because the evidence showed that the presence of the brick making machine was not the proximate cause of plaintiff’s injury. Recovery can be had only where the negligence complained of is the proximate cause of the injury. Labatt on Master and Servant, sec. 810; Trigg v. Lumber Co., 86 S. W. 222; Goransson v. Mfg.

Louis City Circuit Court. — Eon. George E. Shields, Judge. (1) A clear case of contributory negligence on the part of the deceased was shown by the evidence, and the case should not have been submitted to the jury.

<p>1. APPEAL. AND ERROR: Court of Appeals: Transfer of Causes: Jurisdiction: Waiver. Wiiere a cause, originating in a county within the jurisdiction of the St. Louis Court of Appeals, is transferred hy that court to the Springfield Court of Appeals, and the plaintiff in error files his abstract and brief in the latter court, and makes no objection to the jurisdiction of Said court, he thus waives the question of jurisdiction.</p> <p>2. APPELLATE PRACTICE: Defective Abstract. A printed abstract must be filed in the appellate court, even though a complete transcript is filed. The purported abstract in this case is examined and held insufficient.</p>

Louis County Circuit Court. — No». John W. McElhinney, Judge. (1) The plaintiff declares upon a-contract whereby defendant agreed to pay $1000 to the person who sent in the greatest number of subscribers before November 15th, and remitted for same prior to December 15th.

Louis City Circuit Court. — Eon. Matt G. Reynolds, Judge. (1) It stands admitted by failure to deny the allegation of the petition that the note was to bear interest at 8 per cent from date, and also by the averment in the plea of paymeut that defendant had prior to the institution of the suit paid said note with accrued interest thereon.