Volume 154 — Missouri Reports

Transferred from St. Louis Court of Appeals. (1) The deed of trust set out in plaintiff’s petition was entirely without consideration, a nudum factum. Where a collateral undertaking is subsequent to the original undertaking and was not an inducement to it, though the subsisting liability is the ground of the new promise, there must be some further consideration in order to support the collateral undertaking. Peck v. Harris, 51 Mo.

— Hon. Joseph D. Perkins, Judge. (1) The agreement made by Etch, on behalf of the company, with the defendants, to give the defendants a five cent rate to Carthage, was the inducement and consideration for the defendant’s agreement to convey the right of way and the six-acre tract. It is competent for the defendants to show this agreement by parol. Aull Sav. Bank v. Aull, 80 Mo. 199; Hines v. Wilcox, 33 S. W. Eep. 914; Chambers v. Livermore, 15 Mich. 381; 2 Pomeroy’s Eq.

<p>The issues in this ease are determined in ease of Jasper County Electric Railroad Company v. Curtis, page 10 of this volume.</p>

— Hon. Rudolph Hirzel, Judge. (1) A statute in force at the time Bernard Westmeyer, the common source of title, died is: “Until dower be assigned, the widow may remain in and enjoy the mansion house of her husband, and the messuages and plantation thereto belonging, without being liable to pay any rent for the same.” E. S. 1855, p. 672, sec. 21. This right of the widow is in the nature of a life estate.

Transferred from St. Louis Court of Appeals. (1) The sheriff in selling the property under the execution, under which Maggie C. Baker obtained her title, was the agent of both plaintiff and defendant, owing a like duty to each, and bound to protect the interest of all parties concerned.

Louis City Circuit Court. — Hon. P. B. FlUcraft, Judge. (1)' As there was no reassignment to Delaney Bros, of any interest in what was coming under this subcontract prior to the filing of the lien and the making of the assignment of May 3d, it follows that Delaney Bros., on May 3d, had been paid in full by the assignment to Ittner, and bad no claim under their contract with Hughes for which they could file a lien, or which they could assign to plaintiff, so that the lien and…

Louis City Circuit Court. — Hon. Jacolo Klein, Judge. (1) The court erred in refusing to substitute King as plaintiff in the case. R. S. 1889, sec. 2204; Childs v. Thompson, 81 Mo. 337. (2) It was erroneous to permit defendant King to be questioned as to the rate of interest usually charged by the National Loan Company in its business and as to his testimony on this point on the former trial.

— Hon. James D. Fox, Judge. On April 25, 1896, as the record discloses, appellant was granted ninety days within which'to file a bill of exceptions. While the record certified to this court does not-properly show a finding at any time, yet it is alleged in said record that the bill was filed on July 25, 1896. Even if this were true, yet the filing was not within ninety days under the rule laid down by this court in a number of cases.

Louis City Circuit Court. — Hon. John A. Tally, Judge. (1) Division No. 8 of tbe circuit court of tbe city of St. Louis, Mo., bad jurisdiction of tbe case. Tbe record affirmatively shows tbat tbe court in No. 8 did not pass on the plea to tbe jurisdiction until tbe transcript from division No. 9, together with all the original papers were filed in No. 8. This being so, it disposes of the question.

W. N. Evans, Special Judge. (1) The court committed manifest error: It permitted respondent to testify to what he had learned of appellant’s wife’s condition during a professional examination, and the giving of her purported statements during the same without her permission and over the objections of the appellant. R. S. 1889, sec. 8925; Gartside v. Ins. Co., 76 Mo. 446; Kling v. City of Kansas, 27 Mo-. App. 231; Underhill o-n Evid., sec. 178.

- — Hon. D. W. Shackleford, Special Judge. (1) Had the defendant any rights in his store or place of business, with reference to the conduct of the deceased, John Eaulk, that he would not have had elsewhere? If so, the court should have given instructions as asked by the defendant and should not have obscured these special rights as the court did do in paragraph 7 of the given instructions.

<p>Appeal from Oregon Circuit Court. — Hon. W. N. Evans, Judge.</p>

— Hon. W. W. Bucher, Judge. (1) If it is true as alleged in tbe petition tbat plaintiff procured tbe issuance of a capias and caused Marcbbanks to be arrested, and tbat tbe sheriff of said defendant county took and accepted bis body before tbe final judgment on tbe recognizance, the county had no right to the money in Lowenstein’s hands, and the procuring of it from him was wrongful.

—Hon. Andrew Ellison, Judge. (1) Tbe facts stated in the petition entitled plaintiff to a decree cancelling said warranty deed on account of the fraud practiced by the defendants in procuring the same. It is true that no deception was practiced upon the plaintiff, and no false representations were made to it to induce it to part with any property. This, however, is not decisive as to the existence of fraud.

— Hon. O. A. Anthony, Judge. (1) The court under this notice acquired no jurisdiction, either of the person or subject-matter, of this case, for the reason: Eirst, the defendants are all residents of the county of Atchison, state of Missouri, and were neve*r personally served with said notice, but the only service attempted or relied upon, was service by publication in the Atchison County Journal. The service, as to resident defendants, is null and void.

<p>1. Incomplete Contract: verbal evidence. Where a purported contract is incomplete within itself, is in fact nothing more than a memorandum, is not such as the statute of frauds requires to be in writing and has been performed by one of the parties, verbal testimony is admissible to explain the omitted parts.</p> <p>2. Evidence: no exceptions. Questions as to the ineompetency of testimony regarding the contents of books and papers, can not be raised for the first time, on appeal. They will be disregarded unless proper objection and exception were made at the trial.</p> <p>3. -: cross examination OF defendant: flight. In defendant’s direct examination he stated that a certain letter “was received in Springfield after I left the city.” Held, that it was clearly within the limits of legitimate cross examination to ask him how long it was after he left the city until he got back.</p> <p>4. -; EMBEZZLEMENT: BROKER: COMMINGLING FUNDS WITH HIS own. Where the defendant is a broker, and as such received money from another with which to buy wheat in another city, it is no defense to a charge of embezzlement that he commingled it with his own. It is a special bargain whereby he is 'without authority to mix with his own.</p> <p>5. Embezzlement: gambling contract. The defendant received $250 to be used in the buying of 5,000 bushels of wheat to be thereafter delivered “if the buyer did not thereafter sell it.” The defendant transmitted $10 to a commission company, for which he ‘was a correspondent and appropriated the balance. Held, that he was guilty of embezzlement, although within the meaning of the statute (sec. 3931, E. S. 1899^ the contract was a gambling contract.</p> <p>6. -: no instruction as to age. Where the evidence shows that defendant was forty-five years old, and there is no pretense to the contrary, it was not reversible error to omit from a State’s instructions the issue that the defendant (who was being tried for embezzlement) was under sixteen years of age. He could not have been prejudiced by such omission, although the instruction would have been less objectionable had this issue not.been omitted.</p> <p>7. -: intent. It is necessary that an instruction tell the jury that, in order to convict the defendant of embezzlement, they must believe from the evidence that he converted the money or thing to his own use without the assent of his principal, with a felonious and fraudulent intent to deprive him thereof. And a failure to so instruct is reversible error. The use of the words “unlawfully convert to his own use without the assent,” etc., does not supply the word felonious or the words fraudulent, etc.</p> <p>8. -: -: inferred. No one can be convicted of a felony in the absence of an intent to do a criminal act, but such intent in a case of embezzlement may be inferred from'a felonious or fraudulent conversion. Thus, where a defendant, after receiving money with specific directions as to its application, disobeyed his instructions, abandoned his place of business, kept the money and left the country, the fraudulent intent to convert the money may be inferred from these circumstances.</p>

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) It is no defense to an action for a breach, of promise of marriage that the plaintiff had previously contracted to marry another person, and plaintiff’s first, third and fourth errors are, therefore, well assigned. Eoper v. 'Clay, 18 Mo. 383. (2) While it would have been competent for plaintiff to have introduced evidence, in making out her case in chief touching defendant’s wealth, yet she did not do so.

<p>Taxation of Personal Property: situs. All personal property is assessable and taxable in the county in which the owner resides, it matters not where the property itself actually is. And if the property belongs to minors, and the probate court appoints a curator for them, and they and the curator move from the county, their property is not thereafter taxable in such county, although such probate court may continue to exercise jurisdiction over it until final settlement by the curator of the minors’ estate.</p>

— Hon. H. L. Scarritt, Judge. (1) Tbe plaintiff can recover only on tbe case be makes in bis pleading. It is familiar law tbat plaintiff can not declare on one cause of action and recover on another and entirely different one. Whipple v. Peter Cooper B. and L. Ass’n, 55 Mo. App. 554; Smith v. Haley, 41 Mo. App. 611; R. S. 1889, secs. 2039, 2238; Field v. Railroad, -76 Mo. 614; Stix v. Matthews, 75 Mo. 96; Phillippi v. McLean, 5 Mo.

Louis City Cireuit Court. — Hon. Horatio D. Wood, Judge. (1) Tbe objections to tlie introduction of testimony because tbe petition does not state facts sufficient to constitute a cause of action, and stated facts showing affirmatively that plaintiff had no cause of action, admits all the facts stated in the petition, together with the deed of George Schiffman to Philip Schmidt, trustee for plaintiff, Charlotte Schiffman.

'Appeal from St. Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. (1) The final decree is erroneous in foreclosing the third deed of trust and ordering a sale for the full amount of the bonds and interest, secured by the third deed of trust, and actually issued.

— Hon. O. A. Anthony, Judge. (1) Tbe testimony in. this case to establish a resulting trust is of very doubtful character, being altogether the conduct and intention of a father in deeding land to… Held: we think no case will be found, holding that an attorney to whom the client has confided his secrets, can use such information to coerce his client into making a deed to two-thirds of an eighty acre farm for $240.

— Son. J ames T. Nevill6¡ Judge (1) The admission of evidence in relation to acts done by and conversations had between parties charged to have been implicated in the robbery with defendant, after the perpetration of the robbery and separation of the participants, was erroneous. State v. Minton, 116 Mo. 615; State v. Hilderbrand, 105 Mo. 318; State v. Melrose, 98 Mo. 597; State v. McGraw, 87 Mo. 164; State v. Duncan, 64 Mo. 266; State v. Ross, 29 Mo. 32; 1 Greenl. Ev.

- — Hon. Reuben F. Roy, Judge. (1) Plaintiff is a party to the warranty deed, conveying to the defendant the “Coles tract” of land. She is therefore estopped from setting up a claim for dower as against Estes, her grantee in said warranty deed, and from claiming that because such deed has beendeclaredfraudulent as against the creditors of her husband and at the instigation of his creditors, it is also void as against her.

Prohibition. (1) The court of appeals transcended its constitutional power when it undertook to decide the case of Elliott v. Missouri, Kansas & Texas Railway Company in disregard of and contrary to the ruling of this court in the case of Brown v. Baldwin, 121 Mo. 126, which is the last ruling of the Supreme Court upon the questions of law and equity involved in the case before the court of appeals, which was therefore controlling authority in that court.

— Hon. JE. L. Scarritt, Judge. (1) It is tbe settled law of' this State tbat tbe husband is entitled to curtesy in all estates of inheritances of which the wife dies seized either at law or in equity, and the limitation of estates to the sole and separate use of the wife will not debar the husband from curtesy, as such limitations necessarily terminate upon the death of the wife.

— Son. S. L. Bcarritt, Judge. (1) Tbe entire record discloses a failure on tbe part of plaintiff to prove Ms case. The evidence neither sustains the allegations of his petition nor shows his right to recover. Denny v. Kyle, 16 Mo. 454; Stout v. St. Louis Tribune Co., 52 Mo. App. 346; Turner v. Mellier, 59 Mo. 535; Clements v. Yeates, 69 Mo. 625; Smith v. Haley, 41 Mo. App. 616; Whipple v. Peter Cooper B. & L. Ass’n, 55 Mo.

Transferred from St. Louis Court of Appeals. (1) A party will not be allowed to sue on one cause of action and recover on another although the same subject-matter may be the subject of the suit. Clements v. Yeates, 69 Mo. 623; Sedalia Gas Light Co. v. Mercer, 19 Mo. App. 650; Gurley, v. Railroad, 93 Mo. 450; Ely v. Railroad, 77 Mo. 34; Price v. Railroad, 72 Mo. 414; Waldhier v. Railroad, 71 Mo. 514.

— Eon. Edward G. Grow, Judge. Tbe bill of exceptions was filed out of time. By tbe terms of tbe order of February 21, 1896, plaintiff was given ninety days to file same. In April this time was extended to June 30, 1896. The order of July 14 was void as not having been made within the time limited. The bill was filed July 29, 1896.

— Hon. Richard Field, Judge. (1) The notes described in the deed of trust having been shown to be without consideration and being evidence of debts not really owing by Field to the Citizens Stock Bank at the date of the assignment to Storts, it necessarily follows as a conclusion of law that the deed of trust must be set aside. State ex rel. v. Hope, 102 Mo. 440; Boland v. Ross, 120 Mo. 208; National Tube Works v. Machine Co., 118 Mo. 377.

— Son. A. M. Woodson, Judge. (1) The first objection made in the lower court was that “a license fee so large as to become an exaction for revenue, is a tax. A license may be imposed: 1, for regulation; 2, for revenue; 3, to give monopolies; 4, for prohibition,” and it may be imposed for any one or all of these purposes at the same time.

Prohibition. (1) An injunction will be refused where sought on the ground that the enforcement of a law or ordinance will depriye parties of their right to exercise the functions of public offices which they hold. Spelling on Extraord. Relief, sec. 692; Sheridan v. Colvin, 78 111. 237.

<p>1. Cause of Action: assignment of equity right to sue. The bare right to maintain a suit in equity to set aside a deed obtained from the assignor by fraud, is not assignable. But if the assignee has an interest in the thing independent of the assignor and the fraudulent act lies in the way of the assignee’s attainment of his independent right, he may acquire the assignor’s right to sue to remove the obstacle, and a court of equity will entertain his suit.</p> <p>2. -: tried on wrong theory: practice. Where plaintiff, under the evidence, has a cause of action, but by his petition tried the case on a theory on which by the evidence he is not entitled to recover, and defendant did not file a timely demurrer, this court will not give judgment for plaintiff, but remand the cause to be tried again, by allowing an amendment of the petition, etc.</p> <p>3. Defective Pleading: challenge after trial begun. Courts do not look with favor on the practice of waiting until the trial, to challenge the sufficiency of a pleading; the fair way is to demur at the beginning. If a party lies in wait for his adversary the court should not allow him an advantage that he could not have attained in the open field.</p>

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) Tbe presumption of law is that property acquired by tbe wife during coverture was paid for witb tbe means of the husband, and tbe burden of proof was on the defendants to rebut tbe presumption by evidence, specific and in detail, to sbqw where tbe money witb which tbe purchase was made came from.

Louis City Circuit Court. — Hon. John A. Talty, Judge. (1) It appears that there was “a decree for the plaintiff on the first count of her petition.” It also appears that the trial court allowed an appeal from that decree after the usual motions for its correction in that court. Until the contrary appears, it will be presumed that the action of a trial court is correct, throughout the proceedings.

— Son. H. L. Bcarritt, J udge. (1) This law applies to all cities of a class, excludes none, and hence is general. It applies to cities which have special charters, and which contain, or may contain, a certain population. Such cities are recognized by the Constitution, and it is not necessary to cite authorities to show that a law based on population may be general. (2) It would seem that the act did not become unconstitutional until the city took action under it.

<p>Appeal from Cole Circuit Court. — Hon. D. W. Shackleford, Judge.</p> <p>(1) Even if the plat had not been acknowledged, or had been otherwise defectively executed, still this would not have been fatal to its admissibility in evidence. Rollins v. McIntyre, 87 Mo. 496; Baker v. Vanderburg, 99 Mo. 390. A plat will amount to a dedication with the streets and numbers indicated thereon in general terms, without giving the dimensions of the lots. California v. Howard. 78 Mo. 88. (2) The evidence conclusively shows that taking Main street (as located on the plat) for a base or starting line, and measuring therefrom according to the notations on the plat to the alley in controversy, defendant’s fence is within the alley limits as claimed by plaintiff, (a) When the number of the lot on a plat referred to in a deed is the only description of the land conveyed, the courses and distances 'and other particulars in the plat are to have the same eff ect as if recited in the deed. Dolde v. Vodicka, 49 Mo. 98; Thomas v. Patten, 13 Me. 329. (b) Where two monuments are referred to in a deed incompatible with each other, that which is the most certain and the more prominent is to be. preferred. Lincoln v. Wheeler, 29 Me. 169. Main'street, as marked on the plat, and as it has existed without change since 1865, and possibly prior thereto, is a more certain and prominent monument than the stones found by the surveyor, and whose histories are unknown. (c) A survey (and monuments placed in pursuance thereof) do not prevail over a plat when the survey is subsequent to the plat. Thomas v. Patten, 13 Me. 329. (d) Where streets have been opened and have been acquiesced in by the parties interested, or by the public authorities (as shown with reference to Main street delineated on the plat) “they become permanent boundaries and form new starting points for later surveys.” Twogood v. Hoyt, 42 Mich. 609; Hoffman v. Port Huron, 102 Mich. 417; Thomas v. Patten, 13 Me. 329. (2) Streets which are well defined and in use for a long time are governing monuments. Doe v. Eiley, 28 Ala. 164. (f) Old fences have always been regarded as strong and trustworthy evidence in ascertaining and fixing boundaries. Hoffman v. Port Huron, 102 Mich. 417. (3) Injunction is a proper remedy for plaintiff in this case. Downing v. Dinwiddie, 132 Mo. 92; Lakenan v. Eailway, 36 Mo. App. 363; Schopp v. St. Louis, 117 Mo. 131. And it is immaterial that the act obstructing the alley was completed before the suit was brought, although the weight of the evidence is to the contrary. Lakenan v. Eailroad, 36 Mo. App. 363.</p> <p>(1) The court could not determine the contention from the evidence submitted. There never was any lawful plat in evidence, or one that in any wise conformed to the law, or any law that ever existed. The copy offered does not describe the land upon which the addition is located, the ground reserved for streets and alleys by boundaries, course and extent, or in any way comply with law. E. S. 1845, chap. 176, p. 1055; E. S. 1855, chap. 158, p. 1535; G-. S. 1865, chap. 44, p. 247; E. S. 1879, p. 1287. (2) It is unlawful to sell lots before the requirements of the statute is complied with, and a sale before compliance is void. See. 7313, E. S. 1889; Downing v. Einger, 7 Mo. 585. (3) Such plat, so made out and recorded, vests the fee of the lands laid out as streets and alleys in the county. Sec. 7313, E. S. 1889. And ejectment may be maintained therefor. California v. Howard, 78 Mo. 88. The following cases recognize ejectment, as proper remedy to recover lands dedicated to public use for parks, squares, streets, alleys, etc. Baker v. Vandenberg, 99 Mo. 378; Price v. Breckenridge, 77 Mo. 447; Eeid v. Board of Ed. of Edina, 73 Mo. 295. Secs. 7920 et seq., E. S. 1889, places the streets and alleys, etc., under the control of the county court, and gives the road overseer the same control over, and requires of him the same duty towards them, as county roads. See. 7827 provides for punishing persons obstructing roads and also provides for a penalty of $5 per day to be recovered of any one refusing to remove obstructions, within five days after being notified by the overseer, requiring him to remove such obstruction. The plaintiff having shown no title in himself is in no position to complain. Ziebold v. Foster, 118 Mo. 349; Brown v. Carthage, 128 Mo. 10.</p>

— Eon. Rudolph Eirzel, Judge. (1) The trial court committed error in admitting over defendants’ objections, immaterial, incompetent and hearsay testimony of the declarations made by testator long before ■and after the date of the will, to the prejudice of defendants. These declarations of testator, introduced in evidence by plaintiffs, were all remote from the time of execution of the will in contest and did not have any connection with it.

Louis City Circuit Court. — Hon. James B. Withrow, Judge. (1) There was ample evidence upon wbicb to predicate constructive notice to the city of the pitfall in the sidewalk in question. Bonine v. Richmond, 75 Mo. 438; Maus v. Springfield, 101 Mo. 616; Charter of St. Louis, art. 4, sec. 35; Davenport v. Hannibal, 108 Mo. 472; Frank v. St. Louis, 110 Mo. 517; Carrington v. St. Louis, 89 Mo. 208; Welch v. St. Louis, 73 Mo. 73; Russell v. Columbia, 74 Mo. 485.

— Hon. Argus Oox, Judge. (1) Where persons stand by knowing their rights in the premises, and see others making lasting and valuable improvements, and paying taxes thereon, they are estopped from claiming the same. Evans v. Snyder, 64 Mo. 516; Landram v. Bank, 63 Mo. 48; McNees v. Swaney, 50 Mov 388.

— Hon. H.- O. Timmonds, Judge. (1) Oontestee claims, that section 4785, R. S. 1889, is simply directory.

— Hon. James H. Parrish, Judge. (1) The trial court erred in overruling the objections of the defendant to the introduction of the letter of L. L. McDonald and the reply of E. E. Clark thereto, because the letters did not tend to prove the making of the proof of the death of Daniel McDonald by the plaintiff, or the waiver of such proof by the defendant association; the making of such proof not being admitted in the pleadings, nor was the death of the insured admitted by the…

Prohibition. (1) It has been settled by the repeated decisions of this court as well as the Act of 1895, that the remedy by prohibition is available for the purpose of keeping a court within the compass of its legitimate judicial action as defined by law, and a proper remedy to prevent a court from asserting or assuming jurisdiction in any case where, under the facts, the law does not authorize the exercise of such jurisdiction.' State ex rel. v. Ross, 122 Mo. 461; Railroad…

Louis City Circuit Courts — Hon. Jacob ■ Klein, Judge. (1) Instruction numbered 1, given for plaintiff, was erroneous, because: (a) It assumed that plaintiff was an old man. Stone v. Hunt, 94 Mo. 475. (b) It commented on the fact of plaintiff’s age, and unduly directed the attention of the jury to that fact by singling it out. Chouquette v. Barada, 28 Mo. 491; Miller v. Marks, 20 Mo. App. 369; Hopp'er v. Yance, 27 Mo-. App. 336; Doud v. Reid, 53 Mo.

Certiorari. (1) At common law the writ of certiorari was used by the superior court for the purpose of reviewing the acts and proceedings of inferior tribunals, courts -and officers, whether they proceeded according to the course of the common law or not, and this process of review was used. First. Before judgment for the purpose of bringing the record into the superior court for trial.