Volume 155 — Missouri Appeal Reports

— No. James T. Neville, Judge. (1) If respondent did not know that the dwelling house was not upon the land when its agents showed it to appellant, then the mistake was mutual, and equity will adjust the wrong done appellant. Weissenfels v. Gable, 208 Mo. 515; Gurry v. Griffith, 115 Mo. App. 369; Griffith v. Townley, 69 Mo. 19; Ghrisman v. Linderman, 202 Mo. 613; Miller v. Fire Brick Co., 139 Mo. App. 25.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. The provision in the policy for. paid-up non-forfeitable insurance for $118 is valid under the laws of Missouri and binding on respondent. R. S. 1899, secs. 7898-7900; R. S. 1879, secs. 5984-5986; R. S. 1889, secs. 5857-5859; Sess. Acts 1895, sec. 1 to 197; Sess. Acts 1899, secs. 12-13, pp. 247-8.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) An intended adoption, ineffectual as such by reason of some formal omission required by law, may still operate as a contract for adoption, which, on proper showing, will be specifically enforced and performance by the parties on one side of such an agreement removes the case from the statute of frauds. Wales v. Holden, 209 Mo. 552; Lynn v. Hocbadav, 162 Mo.

Louis City Circuit Court. — Eon. J. Hugo Grimm, Judge. (1) The court erred in refusing defendant’s demurrer to the evidence offered at the close of plaintiff’s evidence in chief and its peremptory instruction offered at the close of the whole case. Plaintiff not being in a dangerous position, a mere start of the car was not negligence. Waldhier v. Railroad, 71 Mo. 514; Saxton v. Railroad, 98 Mo. App. 494; Pryor v. Railroad, 85 Mo. App. 367.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The verdict of the jury is tainted with passion, prejudice, sympathy and partiality. Lehnick v. Eailroad, 118 Mo. App. 6ll. (2) The court erred in •permitting Dr. Baer to state his conclusion that plaintiff was physically unable to do nmnual labor. Glasgow v. Eailroad, 191 Mo. 847; Smart v. Kansas City, 208 Mo. 162; Lutz v. Eailroad, 128 Mo. App. 499; Thomas v. Eailroad, 125 Mo.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. The court erred in refusing to give at the close of the case, an instruction in the nature of a demurrer to the evidence, as requested by the defendant. There being no evidence that the defendant was the owner or operator of the car from which it is alleged the plaintiff was jerked, the plaintiff’s case was therefore fatally insufficient. Frisby v. Railroad, 214 Mo. 567.

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) In a mercantile contract a statement of the subject-matter is ordinarily to be regarded as a warranty, or condition precedent, upon the failure or nonperformance of which the party aggrieved may repudiate the whole contract. Norrington v. Wright, 115 U.. S. 188; Bowes v. Shand, 1 Q. B. D. 470, 2 Q. B. D. 112, 2 App. Cas. 455; Morrison, McIntosh & Co. v. Reiser, 73 Mo. App. 95; Henry Gans & Sons v. McGee, 42 Mo.

Louis City Circuit Court. — Hon. Hugo Muenchj Judge. (1) The court erred in giving defendant’s instruction numbered 1 at the close of relator’s case in the nature of a demurrer to appellant’s evidence. Lime & Cement Co. v. Wind, 86 Mo. App. 163; R. S. 1899, secs. 6761, 2; R. S. 1909, secs. 1248-9; State ex rel. v. Rubber Mfg. Co., 149 Mo. 212; Childers v. Railroad, 141 Mo.

Louis City Circuit Court. — Eon. Eugo Muench, Judge. The demurrer to the evidence should have been sustained; (a) There is no evidence that the alleged settlement, made by defendant with plaintiff’s client, was without his written consent. Sec. 965, R. S. 1909; Marshall v. Ferguson, 94 Mo.

Louis City Circuit Court.- — Eon. George E. Williams, Judge'. (1) Tbe demurrers to tbe -evidence should have been sustained. An employee cannot recover for injuries received while voluntarily performing a service for which he was not employed. Stagg v. Tea & Spice Co., Tea Mo. 489; Schaub v. Railroad, 106 Mo. 74; O’Brien v. Western Steel Co., 100 Mr. 182; Duvall v. Armour Packing Co., 119 Mo. App. 150; Leffler v. Brewing Ass’n, 127 Mo.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) The court erred, in overruling defendant’s demurrer to the evidence, (a) Because the plaintiff’s evidence show that the death of the deceased was caused by his own negligence in failing to look out for approaching trains, as it is the duty of section hands to do when working upon a track where they know trains are liable to pass and because defendant violated no duty which it owed deceased.

Louis City Circuit Court. — Hon. George H. Williams, Judge. The court erred in refusing to direct a verdict for defendant, (a) The contract covering this shipment was made in Texas. The statutes of that state were not offered in evidence, and, as there is no presumption that the statutes of one state exist in another state, the rule of the .common law must control in the interpretation of this hill of lading and the defendant’s liability there under.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. Upon non-payment of the premium due on the first policy, April 9, 1908, after the thirty days grace had elapsed and defendant had been advised from its local office at St. Louis of such non-payment, the policy was cancelled in accord with such contract, the loan paid with the cash surrender value, and this also cancelled.

, Louis City Circuit Court. — Hon. George N. Williams, Judge. (1) Plaintiff’s instruction No. 4, which directed the jury to return a verdict for the plaintiff if they believe the car was “started forward with a sudden and an unusual jerk” while' plaintiff was alighting therefrom is erroneous, because it does not require the jury to find further that the car was not stopped a sufficient length of time to permit plaintiff to alight.

Louis City Circuit Court. — Hon. George C. Hitchcock, Judge. (1) It is a well settled rule of construction of grants by the legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the Avords of the act, or derived therefrom by necessary implication, regard being had to the object of the grant.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. Held: possessed and enjoyed the income and interest from all of the estate of George Wiegand, with the exception of the stock in the Standard Stamping Company heretofore referred to as having been distributed, and held, possessed and enjoyed the income from that portion of the estate so delivered as aforesaid by her to Woerner and the…

'Appeal from St. Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. (1) There being no express contract covering the rendition of the services in question, the plaintiff’s recovery is limited to the reasonable value of the services rendered. 4 Cyc. 994, note 52, and cases cited; 3 Am. and Eng. Ency., 419 (2 Ed.) ; Kingsbury v. Joseph, 94 Mo. App. 298; Brownregg v. Massengale, 97 Mo.

— Hon. A. D. Burnes, Judge. . (1) The court erred in admitting testimony of respondent of alleged conversations with appellant’s agent, Doherty,… Held: that where it is understood between the insured and the agent of the company, that the former intends to secure additional insurance, a provision in the policy forbidding the insurance, will be waived. McCabe v. Ins. Co., 14 BDun. 599; Hartford Ins. Co. v. McLemore, 7 Tex. Civ. App. 317; Carpenter v. Ins. Co., 61 Mich. 635.

<p>Appeal from Buchanan Circuit Court. — Hon. L. J. Eastin, Judge.</p>

<p>1. MASTER AND SERVANT: Safe Place to Work: Obstructed Passageway: .Vigilant Care. Plaintiff was employed in carrying a kettle of hot melted sugar a distance of fifteen feet to a “depositor.” While walking backwards in a space of seven feet, he tripped against a “cream-tub” used in the business which had been moved (whether by an employee in his own or an adjoining department did not appear) from its usual position so as to protrude into the passageway. Plaintiff fell backwards, and the hot sugar spilled over him, burning him severely. The foreman had an unobstructed view of the passageway clear through to the “depositor.” Plaintiff tried the case on the allegation that defendant negligently failed to keep the place reasonably safe. Held, reasonable care under these circumstances meant such care as was commensurate with the dangers of the employment, and it was the duty of the defendant, through its foreman, to exercise vigilant care to see that at all times the passageway was free from such obstructions as might cause plaintiff to stumble and fall.</p> <p>2. -: -: -: Jury Question. Where the fore¡man was in a position to know, if vigilant, whether the passageway was clear or not, it was for the jury to say whether a reasonable length of time had elapsed for him to have discovered the obstruction and removed it, before the happening of the injury.</p> <p>3. -: -: -: When Immaterial by Whom Obstructed. Where the act charged is not the doing of a wrongful act, but the omission to perform a lawful duty, the master is liable for failure to keep a passageway .reasonably safe, whether its condition of unsafety was produced by the act of a servant in the same department or in an adjoining one from that in which plaintiff was working.</p> <p>4. WITNESSES: Depositions: Right to Inspect: Testing Memory.' The trial court refused to allow defendant the right to cross-examine plaintiff as to his recollection of what he stated in a deposition which he had previously given in the case, without first having read the deposition to him. Held, that the rule that before a deposition can be used to impeach a witness, he must first be given an opportunity to inspect it, applies also where the purpose is only to test the memory of the witness.</p>

— Hon. C. A. Mosman, Judge. (1) The court committed error in refusing to give defendant’s instructions Nos. 13 and 15, and thus allow the jury to say whether the city had opened up for public use the part of the street complained of.

<p>1. APPELLATE PRACTICE: Abstract of Record: Affidavit for Appeal. Where respondents attacked the sufficiency of appellant’s record of the abstract proper by a motiion to dismiss on the ground that the record did not set out the affidavit for appeal nor the substance thereof. Held, that all that is required is a recital in the record proper that the affidavit required by law was filed, and that it was adjudged sufficient by the granting of the appeal.</p> <p>2. -: -: Motion for New Trial. Where respondents attacked the sufficiency of appellant’s record of the abstract proper by a motion to dismiss on the ground that “it did not show that a record entry was made of the filing of the motion for a new trial,” etc. Held, that it is sufficient if the abstract recited the fact of the filing of the motion for the new trial, and the date, and term of the filing, from which it appears that the motion was filed on the day after the verdict was rendered, and at the same term, because the important fact to be disclosed in an authentic way is that the motion for a new trial actually was filed within the four days prescribed by statute.</p> <p>3. EVIDENCE: Circumstantial Distinguished from Speculative Evidence. Where the principal contention of defendant was that trial court erred in refusing to direct a verdict in its favor, because the inference that the deceased father of the infant plaintiffs was struck by some part of the passing engine while his foot was caught in a decayed tie, can be reached only by building inference on inference and should therefore be rejected as pure speculation; held, after reviewing the evi-' dence, that such an inference rests squarely on a foundation of convincing circumstantial evidence, and hence should not be disregarded as speculative.</p> <p>L RAILROADS: Personal Injury: Unavoidable Accident. Where the evidence discloses that the injury was not due to any fault of the deceased father of infant-plaintiffs, nor to any negligence of the engineer, but was due to the purely accidental fact that the deceased stepped into a hole caused by the decay of a tie, which constituted a lurking trap, the presence of which neither he nor the engineer had any reason to anticipate, the injury to deceased was an unavoidable accident, and defendant’s demurrer to the evidence should have been sustained.</p> <p>5. -: Duty to Self-Invited Pedestrians: Ties. Defendant railroad owed self-invited pedestrians no duty to use only perfectly sound ties. •</p>

<p>1. Crimes and Punishments: Violation of Local Option Law: Prima Facie Case. Where defendant was convicted on an information for violation of the Local Option Law; and he contended that the state did not show affirmatively that said law was in force in the city; held, that the state made out a prima facie case when it put in proof the journal of the city council declaring the result of the local option election, and proof of publication of its adoption for four consecutive weeks in a newspaper published in the county.</p> <p>2. INTOXICATING LIQUORS: Sales: Defendant Acting as Agent or Principal: Jury Question. Where defendant was paid a lump sum for the liquor, and it does not appear that any part of the same was to go to him for his services in procuring the liquor, the transaction indicated a sale, and in any event, it was for the jury to say whether defendant was acting in the capacity of an agent of the prosecuting witnesses in procuring the whiskey, or was making the sale of it on his own account.</p> <p>3. TRIAL PRACTICE: Closing Remarks by Prosecuting Attorney. One of the points in question was whether defendant had purchased the liquor in controversy at a certain drug store, or had merely gone into the drug store as a ruse, returned, and delivered to the prosecuting witness whiskey which he had been carrying continuously in his pocket. The justice, before whom defendant was first tried, testified in the circuit court that defendant had told him he had not bought any whiskey from the druggists on the day in question. The prosecuting attorney, in his closing remarks to the jury said: “the Justice says that defendant says he didn’t get any liquor there at that place. That is a fact gentlemen, I had it read over to me.” Held, that, although the prosecuting attorney was not acting within the scope of his duty when he intimated that he had seen what the witness had said, and that it was so taken down iA writing, yet, as he quoted the remark word for word, it could not work any prejudice to defendant, and hence constituted no ground for reversal.</p>

— Hon. C. A.’ Mosman, Judge. (1) The only duty resting.on the master in this case was to give timely warning to plaintiff of the shot to be fired. There are a limited number of cases reported in which a quarry employee was injured by rock discharged by a blast.

— Eon. C. A. Mosman, Judge. (1) The petition failed to state a cause of action in that it failed to state when the account sued on accrued. The court erred in overruling defendants’ objection to the introduction of evidence at the opening of the trial, and in refusing defendants’ instructions numbered 1 and 2, and in giving plaintiffs’ instruction number 1. Coal Co. v. Ryan, 48 Mo. App. 512; Mfg. Co. v. Burnes, 59 Mo. App. 391; Drey v. Ridpath, 16 Mo.

<p>Appeal from Davies's Circuit Court. — Eon. Arch B. Davis, Judge.</p>

<p>GIFT: Possession: Members of Family. In order to make a valid gift, there must he a change of possession. But possession is a relative term and the character of possession is governed by circumstances, and where a father makes a gift of live stock to his minor son, living with him as a member of the family on the farm, it cannot he expected that the son should take property from the farm in order to render the gift valid.</p>

<p>Appeal from Buchanan Circuit Court. — Son. IAician J. Eastin, Judge.</p>

<p>1. CORPORATIONS: Contract: Secretary. Where the secretary of a corporation orders work from a printing company with the knowledge of the president, and when the work is done and delivered at the office of the corporation and receipted for in its name; and where bills for the work are repeatedly sent to the corporation and no response or denial made for nearly one year; it was held sufficient evidence of the secretary’s authority to sustain a verdict against the corporation.</p> <p>2. FOREIGN CORPORATION: Void Contract: Estoppel. While contracts made in this state by a foreign corporation which has not complied with the statute as to making a statement and procuring a permit or license from the Secretary of State, are void, yet the corporation will he compelled to pay the value of work done for it, notwithstanding the illegality of the contract.</p>

<p>1. INSTRUCTIONS: Negligence: Enlarging Scope of Plaintiff’s Action: Error. Where the gravamen of the cause stated in plaintiff’s petition was negligence in allowing an engine unnecessarily to emit steam in a volume to produce a loud, unusual noise, and where it was not charged that defendant negligently failed to avoid frightening plaintiff’s horses by discontinuing the noise after the engineer saw, or by the exercise of reasonable care, should have discovered, that the noise of the escaping steam was terrifying the horses, and if continued, would cause them to run away. Held, that it was error for the trial court to enlarge the scope of the cause of action by including in the instructions given at plaintiff’s request negligence of the latter character.</p> <p>2. RAILROADS: Master and Servant: Assumption of Risk. Plaintiff, who was a laborer with his team working on a railroad embankment, sued to recover for personal injuries alleged to have been caused by the negligence of defendant in the operation of one of its trains. One of defendant’s trains frightened another team which ran away, and knocked plaintiff down. The constitutive elements of plaintiff’s cause as pleaded were, first that the noise produced by the escaping steam was the proximate cause of the runaway; second, that the emission of the steam was unnecessary; and third, that the noise was unusually loud and terrifying. Plaintiff adduced no evidence tending to establish the second and third of these elements. Held, that the relation between plaintiff and defendant was that of master and servant; that the risks of injury from passing trains operated in the usual manner were natural and inherent risks of the1 employment, and as such were assumed by plaintiff; that the evidence showed beyond a reasonable doubt that the noise which frightened the team which struck plaintiff was not unusual or unnecessary. Hence, since the injury1 to plaintiff was due to one of the natural risks of his employment, and not to negligence as averred, plaintiff cannot recover damages.</p>

<p>DEEDS OF TRUST: Satisfaction by Cestui: Penalty for Failure to Enter. In an action to recover the penalty prescribed in section 2850, R. S. 1909, for the failure of a cestui que trust to satisfy a deed of trust of record, the only allegation in plaintiff’s petition relating to a request or demand of plaintiffs, that defendant as cestui que trust enter satisfaction, failed to give the date of the request, and also failed to allege that the demand was made more than thirty days before the institution of the suit. Held, that, since the request is essential, and since no cause of action to recover the penalty can arise until the lapse of thirty days from the date of the request, the omission of plaintiff’s petition to allege one of the constitutive facts of the cause is fatal to a recovery, as the statute is highly penal, must be strictly construed, and the plaintiff invoking it must - plead and prove all of the elemental facts.</p>

<p>1. RAILROADS: Negligence: Evidence: Operation of Trains: Killing Horses. In an action |o recover damages for the negligent killing of two horses by a train on defendant’s railroad, where plaintiffs relied entirely upon the third count of their petition which averred negligence in the operation of the train. Held, that the court, sitting as the trier of fact, need not accept as conclusive the assertion of the engineer that, with a clear straight track, and on a bright sunshiny day, he could not distinguish the horses from men at a greater distance than 400 feet.</p> <p>2. -:-: Duty to Stop or Whistle. Although the mere fact that the engineer saw the horses on the track ahead in’ time to avoid killing them, did not impose a duty on him to begin stopping the train, nevertheless, where the stock is discovered to be in peril, and likely to be struck by the train, if not scared away by the stock whistle,, or saved by stopping the train, the duty arises on the discovery of such peril, to whistle or stop, and the failure to do either, or both, if necessary, is negligence.</p> <p>3. -:-: Duty to Stop. Where the engineer must have observed the horses in question running wildly down the track, recrossing the cattle-guard in their excitement, and where the track was inclosed, and it may not have been expedient to give the stock alarm, the trial court, sitting as a jury, was justified in concluding that the engineer should have realized from the first view of the situation that the horses were in peril that called imperatively for the stopping of the train, and, the evidence of plaintiffs that no proper effort to stop was made, being substantial, the charge of negligence in the operation of the. train, held to be supported by proof.</p>

<p>EVIDENCE: Presumptions: Abandoned Pleadings. In a suit on a promissory note assigned, to plaintiff bank before maturity, plaintiff alleged in its original petition that the original payee had agreed with defendant, as its agent, that he would assume payment of the note. Subsequently, however, plaintiff amended its petition by omitting the allegation in question. The evidence conclusively showed that plaintiff was mistaken in ■ this allegation, and hence omitted • it from its amended petition. S¡elá, that, although the original allegation is presumed to be true as against plaintiff, nevertheless plaintiff is not conclusively bound by such an allegation, because the word presumed does not mean that the inference to be drawn from a certain state of facts is undeniably true, and not subject to contradiction, and also because to hold that a party was bound by its abandoned pleadings would practically deprive it of the benefit of the code providing for the amendment of pleadings.</p>

— Eon. L. J. Eastin, Judge. (.1) Appellant contends that he is not liable in this action, first, because he, personally, never had possession- of the money collected from the railroad company, and therefore did not convert and appropriate it to his use, and, second, because the only control he had of the money collected from the railroad company was in his' official capacity as president of the corporation and-manager of its business.

— Hon. Herman Brumback, Judge. „ (1) There is no negligence shown on the part of the foreman and no evidence whatever from which the jury would be permitted to infer negligence. (2) As bearing on the question of whether the foreman was negligent or not the evidence was admissible and wrongly excluded by the court showing that the conduct of the business in its usual way had not been attended with any accident or injury.

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

— Hon. James E. Goodrich, Judge. (1) The suit being strictly in rem and the defendants having parted with all interest in the property years before the trial and the subsequent owners, whoever they Avere, having defaulted, it was not competent for the original defendants or their attorneys to be heard in the matter of the validity of the bill. Hunter v. Bank, 158 Mo. 270; Paving Co. v. Young, 94 Mo. App. 204.

<p>1. MUNICIPAL CORPORATIONS: Paving: Taxbllls. Where the ordinance for street paving and advertisement for bids and the contract for the work, specify a certain space to be paved, excepting a street railway track which was to be paved by the company, and after the contract is let, but before the work is done, the city by ordinance permits the street railway to lay an additional track, making it a double line, requiring the company to pave the full area occupied by it and thereby reducing the area and amount of the work, it did not invalidate the taxbills.</p> <p>2. -: -: -: Plans: Railway Tracks. Where the plans for street paving, required to be filed with the board of public works and transmitted by such board to the city council, present a plan of the paving as authorized and let to the contractor, they are not made invalid by subsequent act of the council in reducing the area by the space occupied by .a street railway track authorized after the work was let and required to he paved by the company.</p> <p>3. -:-: -: Estimate of Cost. Where a city engineer is required to make an estimate of public work, but the city charter does not restrict the cost of the work to the sum estimated, the fact that the work as let to a contractor exceeds the estimate, will not invalidate the taxbill.</p>

<p>1. MUNICIPAL CORPORATIONS: Sidewalks: One-Legged Pedestrian: Care. Though a pedestrian on a street has only one leg and walks with the aid of a crutch, yet he may recover of a city which maintains a defective sidewalk if he uses the care that a prudent person in his physical condition would use.</p> <p>2. -: -: Ice: Uneven Surface: Negligence. While a city is not liable for an injury resulting from the general slippery condition of its sidewalks by reason of snow, sleet and ioe, yet if it negligently permits the ice and snow to collect at given points in ridges rising above the general smooth surface, so as to become dangerous and unsafe, it may be held in damages.</p> <p>3. -: -,-: Answer: Abutting Owner. A pedestrian was injured by a fall on one of a city’s sidewalks which was obstructed by ridges of frozen snow mixed with ice. The walk was in front of property owned by the state, upon whiph the Supreme Court building was situated. The city by answer pleaded such fact as rendering it powerless to compel the state to clean the walk and therefore an excuse for allowing the walk to become dangerous. It was held that the answer was properly stricken out as not presenting a defense.</p> <p>4. TRIAL: Reply: Waiver. Though no reply is filed to new matter in the answer, if the parties go through trial as though a reply was in, no advantage can be afterwards taken.</p>

<p>1. MOTION TO ELECT: Exceptions. If a motion is made to require plaintiff to elect which of two counts he will try, and no exception is taken to the action of the court in overruling it, the point cannot he noticed on appeal.</p> <p>2. TRIAL: Surprise: Verdict. If one is surprised hy the evidence in behalf of his adversary, he should immediately ask a postponement of the trial, and not take the chance of a verdict in his own favor.</p> <p>3. -: Weight of Evidence: Credibility of Witnesses. Appellate courts do not weigh the evidence, nor test the credibility of witnesses, in actions at law.</p>

<p>Appeal from Clinton Circuit Court. — Hon. A. D. Burnes, Judge.</p>

<p>Appeal from Macon Circuit Court. — Eon. Nat. M. Shelton, Judge.</p>

Louis City Circuit Court. — Eon. J. Eugo Grimm, Judge. (1) To constitute a breach of the agent’s duty of fidelity and loyalty to his principal, it is not necessary to prove that the principal suffered actual injury or loss. In requiring such proof the court erred. Euneau v. Rieger, 105 Mo. '659; Missouri Class Co. v. Patterson, 72 Mo.

Louis City Circuit Court, — No. Hugo Muench, Judge. (1) The word “American” being geographical, and the words “league” and “official” being descriptive, neither was capable of exclusive appropriation as. a technical trade-mark. Brewing Co. v. Brewing Co., 47 Mo. App. 14; Wolf Bros. v. Hamilton-Brown Co., 165 Fed. 413; Meyer Bros. Coffee Co., 32 App, D. C. 277; Wrisley Co. v. Soap Co., 122 Fed. 796.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The court erred in overruling defendant’s challenge for cause on their voir dire to jurors Benton F. Dowling, George Knopfer and Isaac Kopf, for having served upon a jury within twelve months preceding the date of the trial of this cause. Sec. 6547, R. S. 1899; Williamson v. St. Louis Transit Oompany, 100 S. W. 1078.

<p>1. CORPORATIONS: Dissolution: Effect. A dissolved corporation has no officers, directors or legal existence and is dead and without capacity to appear by counsel.</p> <p>2. -: -: Denial of Corporate Existence: Effect of Appearance. The appearance of a corporation to a suit brought against it is conclusive evidence of its legal existence, for the purposes of that case, precluding the admission of evidence tending to show it was dissolved before the action was brought, although such evidence was offered in support of a plea contained in its answer.</p> <p>3. RECEIVERS: Corporations: Insolvency: Compelling Restitution from Directors. Where a corporation, pending plaintiff’s action against it, transferred its assets to another corporation, and the directors appropriated all of the proceeds to their own use and ceased to act for it, and the corporation had no place of business and no property to satisfy plaintiff’s judgment, it was proper to appoint a receiver to compel restitution from the directors.</p>

— Hon. David H. Eby. Judge. The children and heirs of deceased, A. Cooper, Sr., were incompetent witnesses on the part of respondent, for the reason that A. Cooper, Sr., being dead, and they being his heirs and beneficiaries of his -estate, have such pecuniary interest as to render them incompetent as witnesses.

. Louis City Circuit Court. — Hon. Moses N. Sale,. Judge. (1) In unlawful detainer, the party in possession of the land at the time of the institution of the suit is the only proper party defendant. Alt v. Hobbs, 62 Mo. App. 669. (2) Unlawful detainer, being a possessory action, must be brought against the party in actual possession, and cannot be maintained against one not in actual possession. Jennings v. Robinson, 82 Mo.

<p>1. APPELLATE PRACTICE: Conclusiveness of Verdict: Trial Practice: Function of Jury. The credibility of witnesses and the weight and value to be given to their testimony is for the • jury exclusively, and where there is substantial evidence in support of the verdict, it will be affirmed, in the absence of error of law.</p> <p>2. INSTRUCTIONS: Modification: Not Supported by Evidence. An instruction should not be modified so as to submit to the jury a question which is not supported by the evidence.</p> <p>3. SALES: Action for Price of Animal: Instruction: Refusal. In an action to recover the price of a jack, the refusal to instruct that if plaintiff sold and delivered the jack to defendant for an agreed sum and defendant was to pay the freight to his place of business and deduct it from the price, plaintiff was entitled to a verdict for the price, less the freight, with interest from demand, if demand was made, was error, since the instruction, besides hypothesizing plaintiff’s theory of the case, required a finding of all the facts essential to his right of recovery.</p> <p>4. -: -: -: Modification: Not Warranted by Issues or Evidence. The refusal of the court to give the instruction above set forth in the form asked and the modification of it, so as to deny a recovery for plaintiff if the jury found that the jack was wholly without value at the time of its alleged sale or that plaintiff had made misrepresentations with respect to its qualities, was erroneous, as not warranted by the evidence, and is inapplicable to the issues, since the only issue was whether or not defendant had purchased tl^e jack from plaintiff.</p> <p>5. -: Inconsistent Defenses: Denial of Sale: Misrepresentation: Pleading. While several defenses may be put forward to the same cause of action, they are required to be consistent, and one may not traverse the allegations of a pleading and at the same time avoid the action on some other ground; and hence the defendant, in an action for the price of a jack, alleged to have been purchased by him, may not deny the purchase and at the same time admit that he purchased but attempt an avoidance on the ground of a breach of warranty or a misrepresentation respecting it, for the reason the defenses are inconsistent.</p> <p>6. APPELLATE PRACTICE: Reviewing Instructions: Sufficiency of Exception: Objection Not Necessary. Where inconsistent instructions are excepted to at the time they are given, the mere exception is sufficient to authorize their review, though the words “objected to” do not appear with reference to them.</p>

Louis City Circuit Court. — Eon. William M. Kinsey, Judge. (1) The demurrer to the evidence should have been sustained. The lumber was never delivered to the defendant. Yoakum v. Dry den, 26 S. W. 312; Railroad v. Hodde, 42 Tex. 467; O’Bannon v. Exp. Co., 51 Ala. 481; Railroad v. Echols, 97 Ala. 556; Truax v. Railroad, 3 Hous. (111 Dela.) 233; Tate v. Railroad, 78 Miss. 842. (2) There was no evidence that any lumber was ever placed in the car.

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) The court erred in refusing to admit in evidence appellants’ exhibits A, B, C, D, E and F, the bills received for the goods at time of purchase by appellant, and exhibit H, the receipt for the horse in evidence. Wells v. Hobson, 91 Mo. App. 379; Nelson v. Nelson, 90 Mo. 460; Milling Co. v. Walsh, 108 Mo. 277; Briggs v. Henderson, 49 Mo. 531; Bettes v, Magoon, 85 Mo. 580; Drever v. Dieckman, 131 Mo. App. 660.

— Eon. Nat. M. Shelton, Judge. (1) The general principal of election rests upon the obligation imposed upon a party to choose between two inconsistent and alternate rights or claims, where there is a clear intention on the part of the person or statute creating them that the taker should not enjoy both. It is an extension of the law of equitable estoppel. Graham v. Roseburg, 47 Mo. Ill; Ball v. Ball, 165 Mo. 327; Fox v. Windes, 127 Mo. 512; 2 Story’s Eq. Juris.

<p>1. JUDGMENTS: Inferior Tribunals: Collateral Attack. A judgment of an inferior tribunal of limited jurisdiction is not open to collateral attack when the jurisdictional facts appear on the face of the record.</p> <p>2. SCHOOLS: Change of District Boundary Lines: Judgment of Arbitrators: Collateral Attack, The decision of arbitrators, appointed, pursuant to section 9742, Revised Statutes 1899, to settle controversies between school districts relative to a proposed change in their boundary lines is not open to collateral attack when the record of their proceedings shows the necessary jurisdictional facts.</p> <p>3. -: -: -: -: Jurisdictional Facts. Section 9742, Revised Statutes 1899, authorizing the appointment of arbitrators to. settle controversies between school districts relative to a proposed change in their boundary lines, devolves upon such arbitrators the duty of determining whether or not there is a necessity for a change of the boundary lines and whether or not the purpose of the change is merely to • enable one district to acquire territory from the other; and unless they find there is a necessity for the change and that the change is not merely to enable one district to acquire territory from the other, they have no jurisdiction to order the change.</p> <p>4. -:-: -:-:-: Conclusiveness of Judgment. Where the award of such arbitrators recites that in . their judgment the change is necessary and not for the acquisition of territory, such recitals áre conclusive on collateral attack; the award being the only record required to be kept by that tribunal.</p> <p>5. -:-:-:-:-: Rules of Decision: Statutory Construction. The rule of decision with respect to the sufficiency of proceedings for a change of school district boundary lines is to aid in effectuating the efforts of laymen to accomplish the desired result, by requiring no more than substantial compliance with the statutes, which are to be liberally construed for their benefit.</p> <p>6. -- -: — -: -: -: Requisites of Petition. A petition for a change of school district boundary lines, under section 9742, Revised Statutes 1899, in order to give regularity to the election, or 'render the judgment of the board of arbitrators, appointed by the school commissioner, upon an appeal from the refusal' of one of the affected districts to concur in such proposed change, invulnerable to collateral attack, need not state that the change of boundary desired was necessary and that it was not for the acquisition of territory by one'district from the other; such a petition being sufficient if it clearly signifies the desire of ten qualified voters of one of the districts affected to have a proposition submitted at the annual meetings looking to a change of boundary lines, and clearly and distinctly sets forth the desired change.</p> <p>7. -: -: -- — : -: -: -. The recitals in such a petition are immaterial in a collateral attack upon the judgment of the arbitrators, as the petition for appeal to the county school commissioner confers complete jurisdiction upon him and the board.</p> <p>8. -: -: -: -: -■ The proposition for a change of school district boundary lines, posted by the ‘ district clerks to be voted at the annual school meetings, is alone the warrant of authority for the vote on such proposition, and the petition is to be treated as matter in pais.</p> <p>9. -: -: -: -: Equity: Certiorari. A court of equity will not, in a collateral proceeding, restrain the enforcement of a decision of a board of arbitrators, appointed, pursuant to section 9742, Revised Statutes 1899, to settle °a controversy between school districts relative to a proposed change of their boundary lines, unless such decision is void on its face; and, as a general rule, a court of equity will not interfere, even in that case, since an adequate remedy at law by certiorari exists.</p>

<p>1. JURY: City of Over One Hundred Thousand Population: Qualification of Jurors: Service Within Twelve Months. Section 7353, of article 5, chapter 64, Revised Statutes 1909, relating to juries in cities of over one hundred thousand inhabitants, contemplates that jurors are to serve for such time as the court directs, and the mere fact that a juror may have served on one or more panels during the time for which he was summoned is not sufficient to disqualify him, under section 7342, but in order to be disqualified under that section he must have served in some court in this state within twelve months next preceding the period of his present term of service.</p> <p>2. STREET RAILWAYS: Private Right of Way: Excessive Speed: Failure to Give Signal. A street railway company may operate its cars on a private right of way at whatever speed It sees fit, provided it does not endanger passengers; and need not sound a gong or signal of a car’s approach, unless the conditions that obtain are such as to suggest the exercise of ordinary care for the rights of persons probably on or about the tracks.</p> <p>3. STREETS: Existence of, as Traveled Thoroughfares: Sufficiency of Proof: Street Railways. In an action for injuries resulting from a collision of a street car operated on a private right of way with an automobile in which plaintiff was riding, evidence held to show that the avenue, at the intersection of which with the .private right of way the collision occurred, was a traveled public thoroughfare in the city of St. Louis.</p> <p>.4. STREET RAILWAYS: Crossing Collision: Excessive Speed: Facts Stated. Defendant’s double tracks, constructed on its own right of way, cross Clarendon avenue, a public traveled street in the city of St. Louis, running north and south; westbound cars running on the north track. The cars are obscured, upon approaching the avenue, by buildings erected within ten feet of the rails on either side, and the tracks approaching it from the east curve sharply, so that west-bound cars cannot be seen by one standing on'the north rail of the track in the avenue until within sixty-five to one hundred feet from that point. In an action for injuries resulting from a collision at said crossing between a west-bound street car and an automobile in which plaintiff was riding, held, that ordinary care required that cars be operated at a reasonable rate of speed as they approached said crossing, so that the motorman could control them and thereby obviate the danger to persons passing over the crossing.</p> <p>5. -: -: -: Question for Jury. Where, in such case, the car which collided with plaintiff’s automobile was at3 the time running between twenty-five and thirty miles an hour, the question of whether the speed of the car was excessive, so as to make it negligence, was for the jury.</p> <p>6. -: Failure to Give Signals. Where persons are known to be passing on a street where it crosses over street railway tracks and their view of an approaching car is obscured to a considerable extent by obstructions, the exercise of ordinary care requires the giving of warning of the approach of a car, by gong or otherwise.</p> <p>7. -: -: -: Sufficiency of Evidence: Negative Evidence. In an action for injuries resulting from a collision between a street car and an automobile in which plaintiff was riding, evidence of witnesses who were in a position to have heard the gong, if it had been sounded, that they did not hear it sounded was sufficient to warrant the submission to the jury of the issue, whether or not the gong was sounded.</p> <p>8. -: -: Contributory Negligence: Jury Question. In an action for injuries by the collision at a crossing of a street car operated on its own right of way with an automobile in which plaintiff was riding, whether plaintiff exercised due care for her own safety held a question for the jury.</p> <p>9. NEGLIGENCE: Imputed Negligence: Negligence of Driver Not Imputable to Guest. The negligence of a driver of an automobile in which plaintiff, a young girl, was riding when it was struck by a street ear could not he imputed to her, in an action brought by her against the street railway company, where the driver was not under her control and she was, in fact, his guest.</p>

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) A demurrer to the plaintiff’s evidence should be sustained upon his failure to prove the specific acts of negligence alleged. Davidson v. St. Louis Transit Co., 211 Mo. 320; Kellogg v. Kirksville, 132 Mo. App. 519; Smith v. Railroad, 126 Mo. App. 120; McCarty v. Rood Hotel Co., 144 Mo. 397; Price v. Railroad, 72 Mo. 414; Hurley v. Railroad, 57 Mo.

Charles Circuit Court. — Hon. James D. „ Barnett, Judge. (1) Plaintiff can not recover because the evidence shows that the child died, and a surgical operation of doubtful advantage performed on an infant upon the request of the mother is not such necessity as to render the non-assenting father liable therefor. Dettwiler v. Baeuers, 9th Penn, gtate gup. Court, 173; Keaton v. Davis, 18 Georgia 186; Rogers v. Turner, 59 Mo. 116; Hyde v. Leierger, 107 Mich. 190.

<p>1. MASTER AND SERVANT: Mines and Mining: Injury to Miner: Contributory Negligence: Instructions. An instruction that a miner, injured while pushing a car with his hack toward it, should not have pushed it that way, was properly refused, where it appeared that that was the usual way of moving the car.</p> <p>2. -: -: -: Sufficiency of Evidence. In an action by a miner for personal injuries received while pushing a car, by reason of the car striking a protruding plank between the rails, causing it to tilt, so as to allow the material with which it was loaded to fall off and strike him, held the evidence was sufficient to warrant a recovery by plaintiff.</p> <p>3. -: -: -: Assumed Risk. A servant does not assume the risks of the master’s negligence; such as the maintenance of a protruding plank between the rails of a track in a mine, along which he is required to push a car, unless the injury results from the particular manner in which he uses the defective appliance, when another safe way to use it appears.</p>

<p>1. APPELLATE PRACTICE: Rules of Decision: Theory in Trial Court. A case originating in a justice’s court and appealed to the circuit court will be disposed of by the Court of Appeals on the theory under which both parties tried it in the circuit court, although such theory may not be in accord with the pleadings.</p> <p>2. BILLS AND NOTES: Non Est Factum and Failure of Consideration: Sufficiency of Evidence to Establish. In an action on a note, evidence held to sustain a finding for defendant on defenses of non est factum and failure of consideration.</p> <p>3. APPELLATE PRACTICE: Conclusiveness of Verdict. A verdict supported by the evidence is conclusive on the appellate court.</p> <p>4. TENDER: Sufficiency of: Instructions; In an action on a note, an instruction that if. a party makes a tender he must be at all times ready to pay the amount tendered, and if the jury found that defendant tendered the amount of the note to a person holding it for collection and that thereafter a demand was made on defendant for payment of the note and that defendant failed and refused to pay it, then the tender, if any, made to the person holding it for collection was no defense to the action, is correct as an abstract statement of law.</p> <p>5. INSTRUCTIONS: Refusal: Abtract Instructions. An instruction on a point concerning which no issue is made is properly refused.</p>

<p>APPELLATE PRACTICE: Failure to File Abstracts and Briefs: Municipal Corporations: Prosecution for Violating Ordinances. A prosecution for the violation of a city ordinance is a civil action, and hence where the defendant in such a case appeals, but fails to file briefs and abstracts, as required by Rules 13, 14', 16 and 18 of the St. Louis Court of Appeals, the judgment of the lower court will be affirmed.</p>

<p>1. REPLEVIN: Finding for Plaintiff: Sufficiency of Evidence. In an action to replevy a note, brought by the payee against the maker, the defense, being that the maker was-entitled to possession of the note on the ground it had been delivered to him by the payee, in pursuance of an arrangement whereby the latter had agreed to accept a testamentary gift from a third person in payment of it, held, the evidence was sufficient to warrant a finding by the jury that plaintiff had not surrendered and delivered up the note to defendant as paid and that plaintiff was entitled to its possession.</p> <p>2. INSTRUCTIONS: Refusal: Covered by Instructions Given. It is not error to refuse an instruction which is covered by the instructions given.</p> <p>■¿. EVIDENCE: Purpose of Conduct: Harmless Error: Appellate Practice. Where, in an action to replevy a note, brought by the payee against the maker, all the facts were shown by competent testimony, the error in permitting plaintiff to answer a question as to his purpose in surrendering the note to the maker was not prejudicial.</p> <p>4. TRIAL PRACTICE: Credibility of Witnesses: Question for Jury. The credibility of witnesses is for the jury.</p>

— Hon. David H. Eby, Judge. (1) Objectors are not heirs or legatees of G. L. Bralley, deceased. R. S. 1899, sec. 4613, does not apply. (2) Respondent held in trust for the heir and legatees. Byers v. Weeks, 105 Mo. App. 72. (3) Objectors not being legatees under tbe will of George L. Bralley and their interest coming through Emily Bralley, it was the duty of respondent to account for all money and property received by him — not material from whence it comes.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) Where the action is founded on a joint contract, no recovery can he had against one of the defendants on his several liability. Davis v. Creamery Assn., 63 Mo. App. 477; Timber Co. v. Railroad, 180 Mo. 463; 9 Cye. 755. (2) Where the action is based on an express contract, no recovery can be had on a quantum meruit. Koons v. St. L. Car Co., 203 Mo. 227; Taussig v. Mill & L. Co., 124 Mo.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) The fifth instruction given which was requested by the plaintiff and the eighth, which was given at the request of the defendant, were in irreconcilable conflict. Instructions which are confusing and misleading or which express different and inconsistent. views of the same matter are erroneous, and if given the judgment will be reversed.

— Eon. David E. Eby, Judge. (1) The court should have directed a verdict for defendant because tbe uncontroverted evidence of both plaintiff and defendant show the substantial truth of the article. McAtee v. Valandingliam, 75 Mo. App. 45; R. S. 1909, sec. 4821; Constitution of Missouri, art. 2, sec. 14. It is sufficient to, justify so much of the defamatory matter as constitutes the sting of the charge, the literal words need not be proven.

— Hon. James L. Fort, Judge. Under the contract, and under the law as stated in the following decisions, the decision of the Frisco tie inspectors was final, in the absence fraud, misconduct and bad faith. There is no allegation in the petition of fraud, misconduct or bad faith. The plaintiffs admit that the tie inspectors were there, hut claim that they were not notified that the ties had been rejected. Rogers v. Rehard, 122 Mo. App., 44; Strother v. Lumber Co., 110 Mo.

— Hon. James D. Barnett, Judge. There is no affidavit for an appeal. The paper filed as an affidavit is a nullity. No signature and no jurat. There is no appeal without an affidavit and the appeal should be dismissed. State ex rel. v. Gates, 113 Mo. App. 694; Peters v. Edge, 87 Mo. App. 283; Single v. Smith, 48 Mo. 276.

Louis City Circuit Court. — Eon. Virgil Rule, Judge. (1) An effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of such means, an effect which the actor did not. intend to produce and which he cannot be charged with the design of producing, is produced by accidental means. 4 Cooley’s Law Briefs, pp. 3156-7; Joyce on Ins., sec., 2863, p. 2807; Young…

Appeal- from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) Whether or not Rohan was authorized to hire plaintiffs, either expressly, or as a necessary incident, to carry out and accomplish the purposes of the committee of which he was the chairman, was, under the evidence, for the jury. Gunning Adv. Co. v. Wanamaker & Brown, 115 Mo.

— Hon. David H. Ely, Judge. The evidence not being incorporated in the record brought to this court, the presumption is that the trial court.properly refused the instructions complained of. Aultmann & Taylor Co. v. Smith,-52 Mo. App. 351; Hat-tan v. Mining Co., 40 Mo. App. 448; Bank v. Davidson, 40 Mo. App. 421; Calvert v. Bates, 44 Mo. App. 626; Hughs & Dill v. Yanstone, 24 Mo. App. 637; Guinn v. Boas 31 Mo. App. 131; Messick v. Fairburn 54 Mo. App. 29.

— Eon. E. G. lliley, Judge. (1) The offense was committed in Godair township and in Little Prairie township, and an information was properly filed in Little Prairie township before Squire Burrus. State v. Anderson, 191 Mo. 134; E. S. 1909, sec. 4967.

— Eon. James D. Barnett, Judge. (1) The only action which plaintiff can maintain is an action on the covenant of assumption. The former' action was not an action on a note, but was predicated upon the same covenant sued upon in this action. Curry v. LaFon, 133 Mo. App. 176. (2) Two or more claims already due under the same contract are deemed a single demand which cannot be split without the consent of the obligor. Pettit v. Ins. Co., 69 Mo.

Apppeal from St. Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) Where there is no evidence whatever to support a finding by a jury upon a particular issue a new trial should be granted by the trial court, and the refusal so to do is reversible error. Spooner v. Railroad, 23 Mo. App. 403; Doty v. Steinberg, 25 Mo. App. 328.

— Eon. James D. Barnett, Judge. (1) All the instructions given-for defendant are erroneous because they exclude the theory that defendant promised to pay plaintiffs after the deal was consummated. Bell v. Electric Co., 125 Mo. App. 660; Bolles v. Railroad, 134 Mo. App. 704; Toncrey v. Metropolitan, 129 Mo. App. 600.

Louis City Circuit Court. — Eon. Hugo Muench, Judge. (1) Defendant’s motion to require plaintiff to elect should have been sustained. (2) Defendant’s objection to the introduction of any testimony under the first count of the petition should have been sustained. The first count of the petition does not state a cause of action.