Volume 155 — Missouri Reports

Louis City Circuit Court. — Hon. John M. Wood, Judge. (1) There is no covenant from which an obligation on defendant’s part to pay into the city treasury five per cent of its gross receipts from private lighting, can be inferred, (a) The requirement that the “operations” of the contractor shall be in accordance with and subject to all existing and future ordinances of the city does not even suggest an obligation to pay five per cent of his gross receipts, much less does it…

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) An erroneous instruction is not remedied by the giving of a correct instruction, which is inconsistent and irreconcilable therewith. State v. Clevenger, 25. Mo. App. 653; Stevenson v. Hancock, 82 Mo. 612; State v. Herrill, 97 Mo. 105; State v. Cable, 117 Mo. 384; Bluedom v. Railroad, 108 Mo. 439. (2) It is reversible error to give contradictory or conflicting instructions.

Apeal from St. Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. (1) Plaintiff’s demurrer to the first affirmative defense set forth in the answer should have been overruled. Green-hood on Public Policy, pp. 1, 97 and 115; Koehler v. Eeuerbacher, 2 Mo. App. 11; Kent v. Miltenberger, 13 Mo. App. 502; Buckingham v. Eitch, 18 Mo. App. 91; Turley v. Edwards, 18 Mo.

— Hon. E. M. Hughes, Judge. The plaintiffs -were entitled to a re-trial of the case below, and to produce evidence in addition to that offered at the former trial in support of their… Held: that it should look to the entire opinion of the Supreme Court, and not merely to the mandatory words with which it concluded, in determining how to proceed under the mandate. Gamble v. Gibson, 10 Mo. App. 335; West v. Brashear, 14 Pet. 51; Supervisors V. Kenn-ecot, 94 IT. S. 498.

— Hon. W. W. Bucher, Judge. (1) The words set out in plaintiff’s petition are actionable per se and special damages need not be alleged. Newel] on Defamation, Slander and Libel, pp. 84, 168; Cooley on Torts, p. 196; Pollard v. Lyon, 91 U. S. 225; Townsend on Libel and Slander (4 Ed.), p. 221; St. James Military Academy v. Gaiser, 125 Mo. 525; Morasse v. Brochee, 151 Mass. 567; Price v. Conway, 134 Pa. St. 340; Odgers on L. and S. (2 Ed.), p. 65.

Prohibition. (1) The question of eligibility can not be raised by injunction proceeding, because Washburn was in fact a Ke facto officer, and even if he had not been eligible, which we do not concede, that question could not be raised in this proceeding. Mechem on Public Officers, sec. 318.

— Hon. Andrew Ellison. Judge. (1) The assessment in this case is strictly in accordance with both Federal and State law. First Nat. Bank v. Ohehalis Co., 166 II. S. 440; Law's 1895, p. 242; Secs. 7540, 7610, B. S. 1889; Merchants Nat. Bank v. Com., 167 IT. S. 461. (2) But even conceding inequality in the assessment the only remedy was by appeal to the county board of equalization, which it is conceded in this case was not made.

<p>Transferred from St. Louis Court of Appeals.</p> <p>By the national banking act, section 5198, Revised Statutes of the United States 1878, which is the law governing the case of national banks, there are two provisions, upon the first of which this case is bottomed, and provides as follows: “The taking, receiving, reserving or charging a rate of interest greater than is allowed by law, when knowingly done, 'shall be deemed a forfeiture of the entire interest which the note,"bill or other evidence of debt carries with it, or which has been agreed to be paid thereon.” The Supreme Court of Missouri has construed this clause of said statute in a case on “all fours with this one.” Moniteau Nat. Bank v. Miller, 73 Mo. 187; Snyder v. Sterling Nat. Bank, 21 S. W. Rep. 1050; Bank v. Turner, 42 Pac. Rep. 936; Guthrie v. Reid, 107 Pa. St. 251; Bank v. Lewis, 75 N. Y. 516; Bank v. Davis, 6 Cent. L. J". 106.</p> <p>The laws of this State do not apply to this case. The laws of the United States do, and under the United States law usurious interest already paid can not be applied to the payment of the debt by way of setoff, but can only be recovered by a direct suit for interest from the bank as a penalty and in the manner prescribed by the law of Congress. Farmers Nat. Bank v. Dearing, 91 U. S. 299; Barnet v. Nat. Bank, 98 U. S. 555; Driesbaek v. Bank, 104 U. S. 52; Stephens v. Monongahela Bank, 111 U. S. T97; Carter v. Carmi, 112 U. S. 478; First Nat. Bank Grundy Center v. Moon, 83 la. 743; Bank v. Gruber, 91 Pa. St. 377; Higley v. First Nat. Bank, 26 Ohio St. 75; Petersborough Nat. Bank v. Childs, 133 Mass. 248.</p>

— Hon. James T. Neville, Judge. Until plaintiffs had paid the entire debt, principal and interest, to the bank they could not recover the excessive or usurious interest they had* paid on that debt. Wheaton v. Hibbard, 20 Johns. 293; Hawkins v. Welch, 8 Mo. 490; Rutherford v. Williams, 42 Mo. 18; Livingston v. Burton, 43 Mo. App. 272; McBroom v. Scottish Mtg. Co., 153 U. S. 318. (1) In this appeal it is admitted by defendant bank that it violated the U. S. statute.

Louis City Circuit Court. — Son. D. D. Fisher, Judge. (1) It is a familiar rule in election contest cases that when ballots have been rejected by the judges of election, the burden is on the party who claims an illegal rejection, to prove such illegality. In the absence of evidence beyond the ballots, the presumption that they were properly rejected becomes conclusive. Therefore, the nine ballots marked “rejected ballots,” were improperly counted for respondent.

— Hon. Rudolph Hiredi Judge. (1) As this is an action of ejectment, and the answer contained, 'among other defenses, a general denial, a recovery must be had, if at all, on the strength of complainant’s title, and not on the weakness of those in possession. Large v. Fisher, 49 Mo. 307; Mather y. Wash, 107 Mo. 121; Mulherin v. Simpson, 124 Mo. 610.

— Hon. H. M. Ramey, Judge. (1) The holding of the trial court that the validity of the Missouri mortgage had been adjudicated in. the Illinois court, was error. Story on Conflict of Laws (EedfieicPs Ed.), sec. 591; 3 Am. and Eng. Ency. of Law, p. .565; Davis v. Headley, 22 N. J. Eq. 115; Pittsburg & St. Louis Eailroad’s Appeal, 4 Atl. Eep. 385; McCartney v. Osborn, 121 111. 408; Jones on Eeal Prop., sec. 189; Boyce v. St. Louis, 29 Barb. 650.

— Eon. Ohas. F. Strop, Judge. (1) While by the terms of the Statute of Frauds trusts in real property are required to be manifested and established by written evidence and trusts in personalty are left to be established by either written or oral evidence, there is no difference in the character or extent of the words necessary to create them, whether those words be written or spoken.

— lion. R. M. Hughes, Judge. (1) The indebtedness due to the father by the child is equivalent to an advancement to the child. On distribution of the father’s estate, the child’s right of inheritance, or his right as distributee, will not attach until his indebtedness be first paid. Eord v. O’Donnell, 40 Mo. App. 52. (2) The right of exemption under section 490Ó, R. S. 1889, is a specific right.

— Hon. Jos. D. Perkins, Judge. (1) In this case the action of the circuit court in refusing the defendant’s declaration of law and in giving the peremptory instruction on behalf of plaintiff in the trial of said cause on the issue joined on the plea in • abatement can only be justified on one theory, and that is, 'that of usury in the transaction. This is no ground under our statute unless the very fact that claims of that kind are of themselves fraudulent conveyances.

<p>1. Will: active trust: eee. The trustees under the will were given power to exercise a control over the real and personal property except the house and garden where the widow was to live, were charged with the duty of applying the rents to the support of the widow and the maintenace and education of the children, of making repairs, and were given discretion in the management of the estate and charged with the duty of protecting it until the death of the widow and until it was divided between certain legatees. Beld, first, that the trust was an active trust, and although the use was not executed the fee vested in the trustees, and still remains in them, although they nine years ago resigned and no successors were appointed in their stead; second, the sale by the widow and surviving children, after their majority, did not entitle the grantee to the possession or divest the trustees, the duty yet remaining on them to control and rent the property and apply the rents to the support of the widow, although she may have ample support from other property or the proceeds of the personalty; third, one of the legatees having died his heirs (sisters of the half-blood) can not sue for possession of their share in the property during the life of the widow but the trustee (to be appointed) alone is entitled to possession.</p> <p>2. -: resignation oe trustees. When land is vested in trustees by an active trust, and they resign, the title still remains in them, and if the trust property is surrendered the cestuis que trust have authority to apply to the proper court for the appointment of a trustee, who alone has right to recover the possession in ejectment.</p>

— Hon. Thomas H. Parrish, Judge. (1) The children had nothing to do with these policies or their proceeds. Baker v. Young, 47 Mo. 458; Eeed v. Painter, 129 Mo. 674. Held: that the proceeds of policies, so written as not to fall within the express provisions of the statute, are yet protected against the claims of creditors, on the ground that they are within the spirit of the law.

— Non. John A. Iloclcaday, Judge. (1) The -testimony of all the witnesses in the case, who claim to have any knowledge of the re-formation of the land in question,, including the plaintiff, shows that such re-formation commenced out in the river, south of the original main channel, in the shape of bars, or tow-heads, which gradually increased in size and elevation, approaching the north and south shores of the river until a large body of land was formed including that in…

Transferred from St. Louis Court of Appeals. (1) Justice Swinney issued execution on the revived judgment August 1, 1895, directed and delivered to the constable of Monroe township, where the defendant Cole resides, and which was returned by said constable November 4, 1895 (more than ninety days), not satisfied, no goods or chattels of the defendant being found upon which to levy the same.

<p>1. Mominal Damages: verdict when set aside. The plaintiff/ is not entitled as a matter of law to have a verdict for nominal damages set aside by the aj/pellate court, unless his case is such that if the verdict had been for the defendant he would have been entitled to have it set aside.</p> <p>2. -: in effect verdict for defendant. Where the logical finding which the jury could have made from the evidence, in a suit for damages for personal injuries charged to be due to defendant’s negligence, was either that the defendant was not negligent or that plaintiff was guilty of contributory negligence, the court should consider the verdict for nominal damages as in effect a verdict for defendant.</p> <p>3. Order for Mew Trial: appeal. An appeal from an order of the circuit court granting a new trial, brings only the ruling of the trial court on the motion for new trial to this court for review. The usual and immemorial practice here obtains in considering the sufficiency of the trial court’s reasons for granting the new trial, to-wit, the appeal is here for review on matters of law, and not on the weight of the evidence, nor is this court to substitute its discretion for the discretion of the trial court.</p> <p>4. -: -: SUBSTANTIAL EVIDENCE: INTERFERENCE. Although the great preponderance of the evidence shows that the verdict should have been for the defendant, and although the trial court set aside the verdict for nominal damages “for the reason that the jury, having found that the plaintiff was entitled to recover, disregarded the court’s instructions as to the measure of damages, and shrunk from deciding the issues submitted to them,” yet if there was substantial evidence on which the verdict for plaintiff could rest, this court will not interfere with the discretion of the trial court in giving one new trial.</p>

— Hon. Richard Field, Judge. (1) The finding of the referee in this case is a general finding and the law does not require the report of the referee to be in any particular form or that he shall… Held: that the referee did not find that defendant had knowledge of the insolvency of the bank at -the time of the creation of the indebtedness to the plaintiff. The report nowhere states any such finding.

<p>Utley v. Hill, 155 Mo. 232, followed and approved.</p> <p>Heferenee: no written exceptions. Where no written exceptions are filed to the report of a referee finding certain facts and that they constitute a fraud, but such finding is submitted to in the trial court, the point is not before the appellate court for review.</p>

<p>The decisions in Union Nat. Bank v. Hill, 148 Mo. 380, and Utley v. Hill, 155 Mo. 232, dispose of this ease.</p>

Transferred from St. Louis Court of Appeals. (1) Tbe court erred in sustaining respondent’s motion for new trial on the grounds that the verdict of no lien was against the evidence- and also against the weight of the evidence, because there was no evidence that Mrs. Stevens had any agent. Bank v. Bank, 130 Mo. 161; Garnett v. Berry, 3 Mo. App. 187; Barker v. Berry, 8 Mo. App. 446’; Bauman case, 55 Mo. App. 490; Thompson case, 60 Mo. App. 490; Duross case, 78 Mo. App. 265.

— Hon. E. L. Scarritt. Judge. (1) When there is a conflict between a map or plat and an actual survey, the latter controls and the reference to the map may he rejected as surplusage. This is upon the supposition that the corners and lines established by the survey can be identified. 1 Jones Real Property, sec. 431; O’Earrell v. Harney, 51 Cal. 125; Penry v. Richards, 52 Cal. 496; Root v. Cincinnati, 87 Iowa, 202; Ogden v. Porterfield, 34 Pa.

Louis City Circuit Court-. — Hon. Jacob Klein, Judge. (1) No evidence was offered on the part of the State tending to show that defendant, Thomson, was a person over the age of sixteen at the time of the alleged embezzlement, as charged in the indictment, although the court instructs the jury that they must believe and find from the evidence that the defendant at the time of its employment of agent was not a person under the age of sixteen years.

— Hon. Reuben F. Roy, Judge. (1) It is alleged that on the day of the sale, notice of defendant’s intention to redeem, was given plaintiff’s representative and witnesses Rogers and Creigh both testified that such notice was given. There was proof offered on every material point and defendant was entitled to have the case submitted to the jury. (2) The trial judge sustained the demurrer to the evidence because notice of intention to redeem was not given to the trustee.

— Hon. Edward L. Scarritt, Judge. When property is given by a will to the “heirs” of certain designated persons, in such manner as to leave it doubtful as to whom, or in what proportions, the property should go, the persons who take and the portions taken, should be determined by the statute of distributions.

— Hon.- E. J. Broaddus, Judge.: (1) The filing of the demurrer admits all facts, set up in the return to the writ, that are well pleaded, and upon the facts so admitted in this case the judgment and finding of the trial court must be reversed. (2) By section 8589, B. S. 1889, and by the decisions of this court, the fiscal year begins the first day of January and closes the thirty-first day of December of each year.

— Hon. H. L. Scarritt, Judge. (1) Under all the circumstances of this case the evidence affirmatively sho-ws that the foreman was not only guilty of no negligence in inspecting the wire, but that he exercised extra-ordinary care in so doing before he ordered the plaintiff to. ascend the pole. Defendant was not- bound to adopt a system of inspection-which would absolutely insure plaintiff -against injury.

Transferred from St. Louis Court of Appeals. (1) The maintenance ordinance, sec. 56J, Revised Ordinance, is a valid enactment, and so, also, is ordinance No. 17151, under which 'the work was done. Seaboard Bank v. Woesten, 147 Mo. 467; Morse v. Westport, 110 Mo. 509; St. Louis v. Schoenbusch, 95 Mo'. 622; State v. Inhab. of Trenton, 20 AÜ. Rep. 1076; Elliott, Roads & Streets, 335; 1 Kent, Com. 464; Bishop, Stat. Grim. 127; Johnson’s case, 1 Greenl. (Me.) 230; Suth.

<p>1. Widow’s Quarantine: residence. To entitle a widow to quarantine in the mansion house and plantation of her deceased husband, it is not necessary that she should actually reside in such mansion house at the time of his death. If the husband dies in possession, the widow’s right of quarantine attaches, whether she is then residing in the mansion house or elsewhere.</p> <p>2. -: -: evidence. For the reason that the possession of the husband and not the residence of the wife determines her right to occupy the mansion house and plantation after his death, it follows that there was no error in the exclusion of testimony offered for the purpose of showing that after separating from her husband the wife established her residence in another State.</p> <p>3. Mansion House: abandonment oe: instructions. Upon the issue whether the husband at the time of his death was in possession of the mansion house, or had previously abandoned it and acquired another domicile, held, that a series of instructions given by the trial court were substantially correct.</p> <p>4. Appellate Practice: erroneous instructions: verdict eor. right party. Held, further, that even if the instructions complained of ■ in this case were erroneous, there could be no reversal on that ground, for the reason that the evidence would not sustain any other finding than that made by the jury. *</p>

Prohibition. (1) It is not necessary, in order to justify resort to prohibition, that the proceedings of the lower court should be so far beyond its legitimate authority that they would be held void in a collateral proceeding. “Where a court or judge assumes to exercise a judicial power not granted by law, it matters not (so far as concerns the right to a prohibition) whether the exhibition of power occurs in a case which the court is not authorized to entertain at all, or…

Mandamus. (1) Courts can not go behind the enrolled bill, as authenticated. Enrollment and authentication are presumption conclusive that the act was regularly passed. A bill is properly authenticated by being signed by the presiding officers of each house of the legislative department of the State government in open session.

Louis City Circuit Court. — Hon. Thomas A. Bussell, Judge. (1) The declaration of law is erroneous.

<p>1. Reis Adjudicaba: decision of court of appeals. A decision of a court of appeals is binding upon the circuit court in a further trial of the same cause, but is not 'binding upon this court.</p> <p>2. Railroad: revision of statutes. The bill enacted by the thirty-fifth General Assembly revising chapter 42, R. S. 1889, and bringing forward into article 2 of said chapter the acts of March 23rd and March 31st, 1887, as secs. 2593-2597 and 2590-2591, respectively, was merely a continuation of said laws, and not a new enactment of them. Said acts continued to be entirely different laws notwithstanding said revision.</p> <p>3. -: -: treble damages. It follows that in an action by a shipper of live stock founded upon sec. 2590, R. S. 1889, for stock killed by reason of the failure of a railroad company to provide a trap-door in the roof of its car, the plaintiff can not recover treble damages under see. 2597 of said revision. •</p> <p>3. -: CONSTITUTIONAL LAW: ALLOWANCE OF ATTORNEY’S FEE. The provision of sec. 2590, R. S. 1889, for taxing an attorney’s fee in favor of plaintiff is in conflict with article 5 of the Amendments to the Constitution of the United States, and void. (Following Railroad v. Ellis, 165 U. S. 150, and overruling Perlcins v. Railroad, 103 Mo. 52.)</p> <p>5. -: MIXED SHIPMENT OF LIVE STOCK: PRESUMPTION. Where a shipper mixes two different kinds of live stock in the same ear, as authorized by see. 2594, R. S. 1889, the presumption is that any injury thereto resulted from such mixed shipment; but this presumption may be overcome by proof to the contrary.</p> <p>6. -•: TRAP-DOOR IN CAR: STATUTE CONSTRUED: PRESUMPTION. Under see. 2590, R. S. 1889, it is the duty of a railroad company to furnish oars having trap-doors in the roof, and for failure so to do it is liable for all damages sustained by the shipper on that account; but the mere fact of injury to stock during shipment does not raise the presumption that such injury was caused by the company’s failure to provide a ear having a trap-door.</p> <p>7. -: -: -: ERRONEOUS INSTRUCTION. It Was error to instruct the jury that the failure of defendant company to furnish plaintiff a ear having trap-doors, overcame the presumption that the injury complained of was caused by the mixed shipment.</p> <p>8. -: CONTRACT OF AFFREIGHTMENT: LIMITING LIABILITY: CONSIDERATION. By the contract of affreightment in this case it was agreed that any injury occurring to the stock in transit should be presumed to have been caused by over-loading or inattention on the part of the shipper. Reid, first, that this is not a contract exempting the company from the result of its own negligence,- but is only an exemption from a statutory obligation, which the shipper may waive; second, that if the rate fixed by the contract of affreightment was less than the legal rate, the difference constituted a sufficient consideration to support said eonti'act; but if the company would not have received said stock for shipment at the legal rate, but would have imposed an additional charge if plaintiff had refused to sign a special contract, then said special contract was not supported by a legal consideration, and was not binding upon the shipper.</p> <p>9. -: FAILURE TO POST SCHEDULE OF MAXIMUM RATES: PENALTY. The statutory penalty imposed for the violation of see. 2639, B. S. 1889, is exclusive of all others, and the courts have no power to declare void a contract of affreightment because of the failure of a railroad company to comply with the requirements of said section.</p> <p>10. -: CONTRACT OF AFFREIGHTMENT: RATES: OPTION. Where a shipper is given his option between signing a regular contract at the legal rate, or a special contract at a reduced rate, he will be bound by his election to take the special contract. But if he were given only an option between a regular contract at an illegal rate and a special contract at a reduced rate, his election of the special contract will not bind him, because not founded on a legal consideration.</p>

<p>1. Municipal Corporation: condemnation proceedings: expediency. Where the condemnation of private property is undertaken for a use alleged to be public, the courts will decide whether or not the suggested use is in fact a public one. But where there is no question as to the public character of the use, such as that resulting from widening the streets of a city, it is not for the courts, but for the legislative and executive departments of the municipal government, to determine whether or not in the instance proposed it is politic or expedient to exercise the power of condemnation.</p> <p>2. -: -: OBJECTIONS TO commissioner. One who appeared before the mayor of a city on behalf of a property owner for the purpose of using his influence in procuring the veto of an ordinance for the widening of a street, was not, on that account, disqualified to serve as a commissioner in condemnation proceedings subsequently instituted under said ordinance.</p> <p>3. -: -: -: WHEN to be urged. Where parties have valid objections to a commissioner in condemnation proceedings they should urge such objections as soon as possible, without waiting to see the result of the commissioner’s, judgment.</p> <p>4. ----- - : -: CITY OE ST. LOUIS: APPORTIONMENT OE DAMAGES. Under the charter provisions of the city of St. Louis, and ordinances conforming thereto, commissioners in proceedings for improving streets are required to apportion tlie burden of damages to private property between the city and the owners of property especially benefited by the proposed improvement, and to that end are also required to define and establish a district embracing all property so benefited, first giving notice by publication of the boundaries of said district, and of the time and place of their meeting to assess such benefits, and to hear complaints. Held, that the commissioners after holding such meeting had authority to reduce the size of a district as originally marked out by them, at any time before completing and filing their final report.</p> <p>5. -; PUBLIC IMPROVEMENTS: LIABILITY OE PUBLIC PROPERTY TO special assessment. It is ’ competent for the law-making power to include public property belonging to a city or county within the limits of special assessments for public improvements, but such property is not so included unless done by express enactment, or by clear implication; and where the remedy provided by law for the collection of the tax is inapplicable to the case of public property, the courts must conclude that the law-makers did not intend public property to be affected by such assessments.</p> <p>6. Condemnation Proceedings: measure of damages. Under an ordinance for widening a public street, the city of Stf Louis appropriated 35 feet of a lot upon which the owner had commenced to excavate preparatory to erecting a large mercantile building, which had been contracted in advance to reliable tenants. In order to conform to the new line of the street said lot owner moved the site of his building back, thereby taking off one-half of another lot having an original frontage of 70 feet. „ In estimating the damage sustained by said lot owner, held, that the commissioners properly awarded him not only the value of the land actually taken for the street, but also the expense of moving the site of his building, the loss occasioned by the delay in completing liis house, and the impairment in value of the adjoining lot consequent upon the reduction of its size.</p> <p>7. -• COMMISSIONERS’ REPORT: INTERFERENCE BY COURT. On a mere question of value depending on conflicting evidence the circuit court should hesitate to interfere with the commissioners’ findings, although in a proper ease it has undoubtedly the right to do so.</p> <p>8. Constitutional Question: point not raised in trial court. The point that an ordinance authorizing condemnation proceedings violates the Constitution of the United States, will not be considered on appeal, where no such point was included in the exceptions filed in the circuit court to the report of the commissioners.</p>

<p>CJtley v. Hill, 3 55 Mo. 232, followed and approved.</p>

<p>Utley v. I-Iill, 155 Mo. 232, followed and approved.</p>

— Non. E. M. Hughes, Judge. (1) Two courses are open to the respondent in mating return to an alternative writ of mandamus, to-wit: He may either traverse substantially the suggestions of the alternative writ, or he may confess and avoid, as he chooses, but he can not adopt both in the same pleading. High on Ex. Rem. (2 Ed.), secs. 460, 461, 466, 467; Donohoe v. Heidel, 33 Mo. 336; Atterberry v. Powell, 29 Mo. 429; Adains v. Trigg, 37 Mo. 141; McCord v. Railroad, 21 Mo.

Louis City Circuit Court. — Hon. Jacolo Klein, Judge. (1) Either the demurrer to the petition or the motion to strike out parts thereof should have been sustained. R. S. 1889, sec. 2043; Scott v. Robarás, 67 Mo. 289; Marsh v. Richards, 29 Mo. 99; Mooney v. Kennett, 19 Mo. 551; Mitehner v. Holmes, 117 Mo. 185.

— Hon. P. Steele Byers, Special Judge. (1) While deference is shown to the decision of the circuit judge, an equity case appealed is practically for hearing in the appellate court, and will be considered as if it had originated there, and was to be heard for the first time. Blount v. Spratt, 113 Mo. 48; Lins v. Leonhardt, 127 Mo. 271; Warren v. Ritchie, 128 Mo. 311; Morey v. Staley, 54 Mo. 419. (2) And the appellate court will review both the law and the facts.

— Hon. James H. Blover, Judge. (1) The validity of the mortgage and the propriety of giving the interpleader's instruction numbered 4, as modified by the court, are the questions involved in this appeal. Eolding-bed Co. v. Railroad, 50 S. W. Rep. 87; Miller v. Car Co., 130 Mo. 517; Real Estate Co. v. McDonald, 140 Mo-. 605. (2) Instruction numbered- 4, as modified by the court, properly stated the law applicable to the evidence, and the court did-not err in giving it.

Louis City Circuit Court. — Son. John A. Tally, Judge. (1) Tbe court below erred, in giving plaintiff’s instruction, numbered 3, of its own motion. The effect of this instruction was to allow plaintiff to recover, even though the accident happened in a way different from that set out in plaintiff’s petition.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The record discloses no valid reason for the rescission of the contract by the respondent, (a) There was no impossibility of performance. Paradme v. Jane, 8 T. R. 267; The Harriman, 9 Wall. 172; Blight v. Page, 3 Bos. & Pull. 295; Barker v. Hodgson, 3 Maulé & S. 271; Railroad v. Reichert, 58 Md. 261; Neil v. Reed, 9 Bing. 68; Harrison v. Railroad, 74 Mo. 371; Robson v. Log Co., 61 Eed.

Louis City Circuit Court. — pión. Jacob Klein, Judge. (1) When one receives services, or board and lodging, the law implies a promise to pay therefor. Kinship, other than the relation of parent and child, does not overcome this presumption. Only as between parent and child does kinship make an exception in this rule. And, except as between parent and child, -the burden is on defendant to overcome the presumption. Smith v. Milligan, 43 Pa. 107; Curry v. Curry, 114 Pa.

Transferred from St. Louis Court of Appeals. (1) The court erred in refusing the instruction ashed by the plaintiff. Under the undisputed facts in the case the plaintiff was entitled to a judgment. The plaintiff was and is a city of the third class and had authority by express grant in its charter to pass the ordinance upon which -the complaint is based for the regulation of weighing .and measuring any commodity sold in the city, including coal. Laws 1893, p. 84, sec. 91.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) This suit was properly brought by appellant in his own name. To have called on the directors to sue, would have been nugatory. To have induced them to sue, impassible. Bulkley v. Big Muddy Co., II Ma. 105. (2) The instruction, given upon the whale case, was erroneous. The evidence clearly showed that the wrecking of the corporation was the handiwork of the respondents.