Volume 156 — Missouri Appeal Reports

Louis City Circuit Court.—Eon. George G. Eitchcoclc, Judge. (1) The court should have sustained the defend-ant’s demurrer to the evidence at the close of all the evidence, (a) The plaintiff’s second amended petition does not state a cause of action. The right of recovery is predicated upon the theory that the proximate cause of the plaintiff’s injury was the defendant’s failure to warn plaintiff of the danger of the mule’s propensity to kick.

Louis City Circuit Court.—Eon. James E. Withrow, Judge. (1) In the construction of testamentary dispositions where the language is unskilled or inaccurate, but the intent can be clearly gathered from the writing, it is the duty of the Court to give that intent effect. Masterson v. Townsend, 123 N. Y. 458; Metcalf y. Framingham, 128 Mass. 370; Ex parte Wynch, 5 De. G. & M. & G. 188. (2) The word cancel means pay. Bank v. Leonard, 40 Barber, 119'.

—Ron. Henry C, Riley, Judge, (1) The court erred in refusing appellant a jury to try tbe issues in this case. An issue of fact in an action for the recovery of money only, or of specific real . or personal property, must be tried by a jury, unless a jury trial be waived. R. S. Mo. 1909, sec. 1968; Rand v. Wicksham, 60 Mo.

Louis City Circuit Court.—Hon. Eugene McQuillin> Judge. (1) An agreement between an insured person and a proposed beneficiary that the latter shall have the proceeds of the insurance, or any fixed part thereof, in consideration of his paying the insured’s premiums or assessments, the beneficiary having no insurable interest in the life of the insured, is against public policy as a wagering contract; but where the agreement is not tainted with fraud, such beneficiary is…

—Eon. James D. Barnett, Judge. (1) The evidence shows'that the note was delivered to the appellant either, on account of a new loan or by way of substitution for other collateral which was surrendered in the same transaction; and it is well settled that a transferee who takes collateral by way of substitution for other collateral surrendered becomes a holder for valuable consideration.

—Hon. James D. Barnett, Judge. The court erred in sustaining plaintiff’s motion’ for a new trial, (a) But one ground was assigned by the trial court for sustaining plaintiff’s motion for new trial. The grounds not mentioned are deemed to have been overruled. Connally v. Pehle, 105 Mo. App. 407; Dale & Bennett v. Mining Co., 110 Mo. App. 317; Crawford v. Stock Yards Co., 215 Mo. 402.

Louis Court of Criminal Correction.—■ Hon. Benj. J. Eiene, Judge, Tbe information in this case is fatally defective, as shown by a decision of this court, in State v. Hellscher, 129 S. W. 1035, in which the information was held “fatally defective in failing to charge that the accused was-a physician or surgeon ‘not registered as such on or prior to March 12, 1901; also in State v. Brand, 131 S. W. 923.’ ” (1) The finding of the court is warranted by the evidence -and the law.

Louis City Circuit Court.—Hon* Charles C. Allen, Judge. (1) The court erred in the giving of the following instruction for defendant at the close of the evidence: “The court declares that under the law and the evi dence the plaintiff is not entitled to a mechanic’s lien on the property described in the petition. R. S. 1909, tit. Mechanic liens.

Louis City Circuit Court.—Hon. Geo. H. Williams, Judge. (1) Plaintiff’s right to recover rests upon the meaning of the clause “compensation or commission” agreed upon is fifty cents per ton, this commission to apply on all sales or shipments. Fries v. Merck, 167 N. Y. 445; Creveling v. Wood, 95 Pa. 152; State v. Boucher, 59 Wis. 477; Hamilton v. Steck, 5 N. Y. Sup. 881.

Louis City Circuit Court.—Eon. Eugene MeQuilUn, Judge. (1) Plaintiffs, G. D. Powers and Charles Ziegler, being dead at the time of trial and rendition of judgment, said judgment is void. Weller Mfg. Co. v. Eaton, 81 Mo. App; 657; Murphy v. Redmond, 46 Mo. 317; Railroad v. Woodson, 110 Mo. App. 208.

Louis Circuit Court.—Hon. James E. Withrow, Judge. (1) The justice had no jurisdiction to render judgment, on service by publication, against defendant, and hence had no jurisdiction to render judgment against this appellant, as garnishee, because when the suit was filed and when this garnishee was served, there had been no seizure of any property belonging to defendant and no debtor of defendant had been summoned as garnishee. McCord & Nave Co. v. Betties, 58 Mo.

Louis City Circuit Court.—Hon. George C. Hitchcock, Judge. (1) On the undisputed evidence plaintiff was disqualified from maintaining and prosecuting this suit. R. S. 1809, sec. 3040; Zinc and Lead Co. v. Zinc Mining Co.. 221 Mo. 7. (2) The contract was made in Missouri with a foreign corporation “doing business” in Missouri,, within the meaning of the statute, without having been, licensed, and is therefore void. .

Louis City Circuit Court.—Eon. Daniel D. Fisher, Judge. (1) The plaintiff was guilty of such, negligence as to prevent a recovery. Tbe defendant was guilty of none. The demurrer to the evidence should have been sustained. Minnier v. Railroad, 167 Mo. 99; Pugler v. Bothe, 117 Mo. 500; Barnett v. Mill Co., 130 S. W. 1119; Meyers v. Glass Co., 129 Mo. App. 556; Coonce v. Biscuit Co., 115 Mo. App. 629; Hester v. Pkg. Co., 84 Mo. App. 451; Marshall v. Press Co'., 69 Mo.

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. (1) Appellant’s indebtedness accrued, under the statutes of Missouri, on the 18th day of January, 1906, the date on which the last work was done and the last material was furnished by him, pursuant to the contract between the owners, respondents, and the original contractor, Adolph Schatz, and pursuant to the contract between the original contractor and appellant, plaintiff.

Louis Court of Criminal Correction.— Hon. Wilson A. Taylor, Judge. Statement.—The defendant was convicted on September 8, 1909, of the offense of abandoning his wife without good cause, and failing, neglecting and refusing to maintain and provide for her, and was adjudged to-serve six months in the workhouse of the city of St. Louis.

Louis City Circuit Court. — Eon. William M. Kinsey, Judge. Where the same person is agent for both parties to a transaction without the knowledge of both, a contract made by such agent is void as to the one not having knowledge of the dual agency. McClure v. Ullman, 102 Mo. App. 697; Harper v. Fidler, 105 Mo. App. 680; Rosenthal v. Drake, 82 Mo. App. 358; Smith v. Tyler, 57 Mo. App. 668; Chapman v. Currie, 51 Mo. App. 40; DeStieger v. Hollington, 17 Mo.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) An appeal from the probate court is properly taken in the name of a claimant against an estate, even though after filing the claim and before the appeal the claimant has assigned his claim to another. Sec. 1924, R. S. 1909; McPaul v. Haley, 166 Mo. 56; Asher v. Railroad, 89 Mo. 116; i Ency. L. & P- (New Am. and Eng. Ency.) 1002.

<p>Appeal from St. Louis City Circuit Court.—Eon. Eugene McQuillin, Judge.</p>

Louis City Circuit Court.—Eon. Virgil Rule, Judge. (1) The court erred in treating the contract in suit as .a contract of employment and in instructing the jury that defendant had a right to discharge plaintiff under certain circumstances. Plaintiff had a property right in his route, paid for by valuable consideration, and the contract could not be revoked, even for cause, without payment to plaintiff of the reasonable value of his vested interest. 1 Am. and Eng.

Louis City Circuit Court. — Eon. William, M. Kinsey, Judge. (1) There being no actual agreement and no actual knowledge, the respondent maintains that there was no constructive notice, merely because a schedule of the rates had been filed and posted as required by the Interstate Commerce Act, and that the shipment at a rate thus posted did not carry with it, as a. matter of law. the adoption of the conditions attached to the rate.

Louis City Circuit Court.—Hon. James E. Withrow•, Judge. (1) The motion of plaintiff to make more definite and certain the counterclaim of defendant should undoubtedly have been sustained. Atterbury v. Powell, 29 Mo. 429; Mfg. Co. v. Saltzmann, 42 Mo. App. 85; MacAdam v. Seudder, 127 Mo. 345; Walker v. Ins. Co., 62 Mo. App. 209.

<p>Appeal from Jackson Circuit Court.—Eon. E. E. Porterfield, Judge.</p>

—Eon. B. G. Thurman, Judge. (1) In an exchange of lands when the value is-agreed upon by the parties, the value thus fixed becomes, the measure of' damages in an, action on the covenant, of warranty. Cook v. Curtis, 68 Mich. 611; 8 Am. and Eng. Eficy. of Law (2 Ed.), p. 189.

—Hon. Wm. G. Ellison, Judge. (1) The defendant in an execution may claim $300 in lieu of the property in the first two subdivisions of section 3159, R. S. 1899. R. S. 1899, secs. 3162 and 3163; Fink v. Craig, 57 Mo. App. 393; Bank v. Farrell, 125 Mo. App. 472. The time for defendant to make this claim is when the sheriff calls with the execution to make the levy. Caldwell v. Renfro, 99 Mo. App.' 376; Garret v. Wagner, 125 Mo. 450.

<p>MECHANICS’ LIENS: Intentional Failure to File True Account: Loss of Lien. Where it is shown that under the direction of plaintiff’s manager, the contractor was given a credit to which he was justly entitled, and that, for some reason, wholly unexplained, plaintiff intentionally omitted to enter this credit in its lien account, the motive that actuated plaintiff was immaterial, but plaintiff’s lien was destroyed by its intentional failure to file a statement containing "a just and true account,” as provided for in section 8217, R. S. 1909.</p>

<p>Error to Buchanan Circuit Court.—Hon. Henry M. Ramey, Judge.</p>

<p>1.. ROADS AND HIGHWAYS: When Fixed Monuments Not Govern. Plaintiff brought an action for trespass quare clausum fregit, against the road overseer for tearing down a fence which plaintiff had erected on land which over twenty years before had been dedicated for a public road. The land within plaintiff’s enclosure by agreement had never been used by the public for travel, although other parts of the road as located had been so used and worked. Held, that where plaintiff does not claim that the description of the road as laid out is defective, he cannot take advantage of the rule that in the absence of a definite location of a road by courses and distances, fixed monuments (i. e., plaintiff’s fence) are to govern.</p> <p>2. -: Abandonment: Evidence: Fences. When a public road is located by proper authority, and is accepted and used by the public within its boundaries as established, the fact that some part thereof is not used for actual travel is no evidence whatever of abandonment, and the rule is the same whether the road be fenced or not by adjoining landowners.</p>

<p>Appeal from Jackson Circuit Court.—Hon. Jas. H. Plover, Judge.</p>

<p>1. SALES: Quality of Goods: Jury Question. In án action to recover the purchase price of merchandise sold and delivered, held, that the trial judge erred in not submitting to the jury the issue of whether or not the goods delivered by plaintiff, and shipped back by defendants, were of the character and quality described in the contract of sale..</p> <p>2. CONTRACTS: Memorandum Distinguished from Alteration: Effect. In a written contract of sale of an assortment of jewelry, the body of the agreement contained the words, “One case or cabinet free.” The plaintiff’s salesman appended a memorandum under the head “Remarks,” containing the words “Floor case.” The position of this notation, showed that it was not any part of the contract, nor intended as anything but a mere agent’s memorandum concerning a fact not covered by the contract. Held, that such a notation could not be considered as an alteration of the contract, and hence, that the contract was not thereby invalidated in any way.</p> <p>3. EVIDENCE: Written Contract Incomplete on Face: Supplementary Oral Agreement Admissible. Where the evidence of the defendants tended to show that a counter show case was to be furnished with an assortment of jewelry for which plaintiff sued to recover the purchase price, and where the words in the body of the .agreement, “One case or cabinet free,” were supplemented by no description of the show case, held, that the rule that all antecedent or contemporaneous oral agreements are merged in the written contract does not apply where the instrument shows on its face that it does not cover the entire transaction. Hence, evidence of the oral agreement as to whether a counter or floor case was to he furnished, was admissible, which evidence raised an issue of fact for the jury.</p> <p>4. CONTRACTS: Performance or Non-Performance: False Representations. Where there is no evidence that the samples shown defendants did not correspond to the articles described in the contract, and" defendant’s own expert witnesses do not say that defendants would not have received a fair and reasonable consideration for their money had the goods delivered fulfilled the contract- descriptions, the case is narrowed to the single issue Of whether or not plaintiff complied with the contract, and defendant’s argument that the contract was procured by false and fraudulent representations is without merit.</p>

<p>1. PRACTICE, APPELLATE: Defective Abstract of Record: When Supplemental Abstract Not Allowable. In. an appeal taken by the short form, the abstract of record proper failed to show that motions for a new trial and in arrest were filed and overruled, and the only reference to the bill of exceptions did not state the time of filing, nor show in any way that the same was filed in proper time. Appellant made no effort to correct the defects, until after it was served with a copy of respondent’s brief calling attention thereto. Appellant then filed a motion for leave to file a supplemental abstract, and tendered an -additional abstract which supplied the omissions of the original. Held, that the appellant’s motion, should be, and is overruled, because the statement that the mistakes were not in the copy furnished the printer, and that the printed abstraet was filed without examination by appellant’s counsel discloses that the errors were not the result of excusable accident.</p> <p>■ 2-, -: -: When No Waiver. When respondent expressly relies in his brief on the omissions in the abstract for an affirmance of the judgment, he does not waive anything by discussing the merits of the case in his brief.</p>

—Hon. G. W. W ana maker, Judge. (1) Absence does not create an absolute presumption of death, without proof that the absentee went from this state and. did not return thereto for seven successive years. R. S. 1899, sec. 3144; Dickens v. Miller, 12 Mo. App. 411; Biegler v. Supreme Lodge, 57 Mo. App. 419.

—Eon. N. D. Thurmond, Judge. (1) Tlie evidence failed to show anything more than an injury inflicted by the mule itself by reason of its… Held: and so have other Missouri courts, that direct proof is not necessary to establish negligence on the part of the carrier in the transportation of live stock, nor .to prove that live stock was injured by reason of negligence of the carrier and not by reason of the vicious propensities of the animal. Hance v. Express Co., 48 Mo.

<p>BILLS AND NOTES: Guaranty by Endorsement: Waiver of Notice. In a suit by tbe indorsees of negotiable promissory notes transferred before maturity by the original payee by the following endorsement, “For value received, I hereby guarantee the payment of the within note, and assign my interest in it,” etc. Held, that the incprporation in the indorsement of a guaranty of payment constitutes a waiver of notice, and hence defendant’s demurrer to plaintiff’s petition was erroneously sustained on the ground that the petition was fatally defective in failing to allege demand on the maker, and notice of dishonor to the endorser.</p>

<p>Appeal from Jackson Circuit Court.—Hon. John G. Park, Judge.</p>

<p>1. RAILROADS: Evidence: Negligence: Order to Fireman: Turkey on Track: Jury Question. Plaintiff was a fireman on one of defendant’s engines and was injured by falling from the engine, being run over and having his feet cut off. tie testified that he was ordered by the engineer, while the train was running in the morning at ten or fifteen miles an hour, to go forward and see if the headlight had been turned out. That on account of the sun shining in on the reflector, it could not be told 'from the cab; he went forward, stepped down off the running board to the pilot beam and stood on tiptoe and looked in the headlight reflector and found the light had been put out. That as he went to return he lost his balance on account of the rough and uneven track and fell in front of the engine. The engineer testified in denial of plaintiff’s story and stated that he asked plaintiff “if he had caught any turkeys this year,” and just then seeing some on the track told plaintiff, who, of his own accord, went forward to take position on the pilot to catch a turkey; that the turkeys left the track without plaintiff getting one, and he started to return, when he, by some means, fell off the engine and was hurt. Held: That however strange and uncommon these opposing stories were, it was for the jury to decide between them, and having found for the plaintiff, the verdict will not. be disturbed in an appellate court.</p> <p>2. --: -: -: Order: Engineer: Fireman. Where an engineer said to a fireman on an engine running ten or fifteen miles per hour, on an early morning when the sun was shining into the headlight reflector: “George, is the headlight out?” and is answered: “Yes, I think it is,” and then said “Go out and see if the headlight is burning and put it out.” Sold-. That .this was an order to the fireman.</p> <p>3. -: -: -: Glaring Danger: Jury Question. Though a servant is ordered to perform a service, yet if such service is so glaringly dangerous that no prudent man .would attempt to perform it, the master is not liable to the servant if he is injured in obeying the order. But if the service consists in going out on the engine while it is running, that being a thing frequently done by the engineer and fireman, it makes a question for the jury whether plaintiff was guilty of contributory negligence in obeying the order.</p>

<p>NEGLIGENCE: Runaway Team: Broken Line: Appearances. Where a livery man. was conveying persons to a fair being held at the grounds on the outskirts of a city, with a wagon and team, the latter known by him to be high spirited, provided with lines, one of which broke in the driver’s efforts to hold them, whereby they ran. away, and the passengers jumped out, one of them being injured; it was held, that the liveryman was liable. It was further held, that notwithstanding the passenger would not have been, hurt if he had remained seated, yet, if the appearances of danger were such as that an ordinarily prudent and careful man in the same situation and circumstances would have jumped out, a recovery may be had.</p>

<p>1. LIFE INSURANCE: Application: Conditions: Delivery of Policy. A written application for life insurance is no more than a proposal made to the insurance company, to he accepted or rejected by the company, and when such application states the time and manner for the proposition to become a completed contract, those conditions (such as delivery of a policy) must transpire before the contract takes effect, unless waived by the company.</p> <p>2. -: -r Agent: Authority. An agent with authority to solicit life insurance, collect the premium and deliver policies which may be sent to him for that purpose by the company, but who does not issue or countersign the policies, is not authorized to make contracts of life insurance.</p> <p>3. -: -: Dead Man: Conditions Precedent. The life of a dead man cannot be insured and the issuance and delivery of the policy during the lifetime of the insured are conditions precedent to liability.</p> <p>4. -:--: Waiver: Retaining Premium. Conditions precedent to liability for life insurance, such as the approval of the medical director and the delivery of a policy, may be waived by the insurer. Where a soliciting agent takes a written application for life insurance containing a stipulation that. no contract should become operative until the approval of the medical director at the home office, and the issuance and delivery of the policy, yet the agent takes a note for the first year’s premium and transmits the application to the company, and the applicant dies before any action is taken on the application and no policy is issued; if the agent, with knowledge of the applicant’s death (but which the company does not know), collects the note and after taking out his commission remits the balance to the company, which receives it, and after becoming informed of the facts, including the death of the applicant, retains the money: It was held that it ratified the acts of its agent in collecting the note as premium money on a completed contract of insurance, and to have become liable as though a policy had been delivered.</p>

—Hon. G. A. Denton, Judge. (1) Although one has not ordered a newspaper or periodical sent to him, or if his subscription has expired, yet if the paper is sent to him through the mails and he takes it out and uses it, this raises an implied contract on his part to pay the subscription price. 9 Cyc. 258-259; Fogg v. Portsmouth Atheneum, 44 N. H. 115, 82 Am. Dee. 191; Goodland v. LeClair, 78 Wis. 176, 47 N. W. 268; Ward v. Powell, 3 Harr. (Del.) 379, 7 Am. and Eng. Ency.

<p>Appeal from Jackson Circuit ■ Court.—Hon. W. 0. Thomas, Judge.</p> <p>(1) Was G. G. Elser the agent of defendant, Mary Elser, in the ‘execution of the building contract with defendant, Btradfield? Burgwald v. Weippert, 49 Mo. 60; Winslow Bros. Co. v. Stone Mason Co., 169 Mo. 2B6; McDonnell v. Nicholson, 67 Mo. App. 408; Becker Lbr. Oo. v. Stevens, 84 Mo. App. 558; Lime Oo. v. Bauman, 55 Mo. App. 204; Collins v. McGraw, 47 Mo. 495; Leisse v. Schwartz, 6 Mo. App. 413; Fischer & Co. v. Anslyn, 30' Mo. App. 316. (2) When the last day of the time within which a lien may be filed falls on Sunday, the following day is in time. Bank v. Williams, 46 Mo. 17; Evans v. Railroad, 76 Mo. App. 468; Jourdan v. Railroad, 92 Mo. App. 84; State ex rel. v. Wilson, 99 Mo. App. 675. (3) A materialman is not allected by separate contracts between OAvner and contractor when goods are furnished under continuous open account without notice. Moore v. Renick, 95 Mo. App. 209; Lumber Co. v. Harris, 107 Mo. App. 148; Cut Stone Co. v. Gray, 114 Mo. 497. (4) Notice of intention to file lien may be served upon the agent of the owner or filed in the office of the recorder of deeds. Sec. 8232, R. S.</p> <p>(1) Where the husband contracts in writing in his own name for the construction of a house upon his wife’s land, that the wife kneAV of the erection, but gave no directions as to the construction, does not show that the husband acted as her ag’ent, nor that she adopted the contract and made it her' OAvn, and is not bound thereby. Barker v. Berry, 8 Mo. App. 446; Garnett v. Berry, 3 Mo. App. 197; Planing Mill Co. v. Brundage, 25 Mo. App. 268; Kuenzel v. Stevens, 73 Mo. App. 17; Boisot on Mechanic’s Liens, p. 271, par. 277. (2) Service of notice-of intention to file a mechanic’s lien should be left' in the hands of the owner, and the statute covering certain exceptions does not apply. Ryan v. Keeley, 9 Mo. App. 396; Meyer v. Christian, 64 Mo. App. 203; Conway v. Campbell, 38'Mo. App. 473; School District v. Holmes, 53 Mo. App. 487; Langan v. Schlief, 55 Mo. App. 213; Van Studiford v. Kohn, 4.6 Mo. App. 436. (3) The rule that Avhen the.last day of a period of time falls on Sunday thé period will be extended to include the following Monday is not applicable to acts which by the statute are required to be done within a certain time therein limited. Patrick y. Faulke, 45 Mo. 312; Miner y. Tilley, 54 Mo. App. 627; Williams y. Lane, 87 Wis. 152, 58 N. W. 77; Bowes v, Christian Home, 64 How. Pr. 509; Haley y. Young, 134 Mass. 364; Allen y. Elliott, 67 Ala. 432. (4) A materialman cannot haye a lien upon a lot and building thereon for material furnished for a sidewalk laid in the street joining the building if the work for the sidewalk was done under a separate and distinct contract. Cut Stone Co. y. Gray, 43 Mo. App. 671; Cut Stone Co. v. Gray, 114 Mo. 497; Boisot on Mechanic’s Liens,' p. 114, par. 110. (5) Where there are separate contracts, in order for a lien account to be good for the entire work, it must be filed within the statutory period after the- completion under each contract. Schulenberg v. Vrooman, 7 Mo. App. 123; Liver-more y. Wright, 33 Mo. 31; Page v. Betts, 17 Mo. App. 366; Pullis y. Hoffman, 28 Mo. App. 666; Kearney v. Wurdeman, 33 Mo. App. 447; Miller y. Herbert, 62 Mo. App. 682; Slate Co. v. Anderson, 76 Mo. App. 281.</p>

<p>1. NEGLÍGENCE: Contributory Negligence: Sidewalks. In an action for damages for personal injuries caused by falling upon a strip of ice on a sidewalk of defendant city, where plaintiff slipped and fell while stepping to one side of the walk to let a pedestrian pass, held, that the law did not require plaintiff to leave the sidewalk to avoid encountering' the ice, but that he might lawfully proceed thereon, if he had reason to believe that he could do so safely. Hence, plaintiff should not be held guilty of contributory negligence as a matter of law. It was a question for the jury to say whether he was in the exercise of reasonable care.</p> <p>2. -: Presumption of Law: Instructions. Where it was shown that the ice which had accumulated on the sidewalk one day would melt during the midday hours of the next, which process had been in progress four or five days before plaintiff’s accident, this condition was sufficient evidence for the-jury to presume that defendant’s officers, notwithstanding that they knew the walk had been cleared of ice after it had melted, must also have known that it would re-form again later in the day, and form anew an obstruction on the sidewalk. Consequently there is sufficient foundation for the presumption of law that the city’s officers should have known in the short space of two or three hours, or less, after the ice had been cleared away, that it would re-form again, and to give an instruction grounded on such a presumption is not error.</p>

—Hon. D. E. Blair, Judge. (1) Tlie court committed error by ruling and bolding upon tbe trial of said cause that failure and want of consideration for tbe contract declared upon by plaintiffs could not be shown by defendant on account of tbe fact that said contract was in writing. R. S. 1909, sec. 1974.

—Hon. L. B. Wood-side, Judge. (1) Cummings retained a vendible interest in tbe Brown note and had a right to and did make a valid sec-' ond pledge. Bank v. Brown, 133 S. W. 860; Bank v. Tot-ten, 144 Mo. App. 103; Southworth Co. v. Lamb, 82 Mo. 249; Dickey v. Porter, 203 Mo. 22; Bank v. Trust C'o., 135 Mo. App. 366; Jordan v. Harris, 46 Mo. App. 177; 22 Am. and Eng. Eney. Law (2 Ed.), 879; Colebrook on Collateral Securities, 229.

<p>1. APPEAL AND ERROR: Equity Cases: Reviewing Errors as to Admission of Evidence. ' On appeal in an equity case all the evidence is before the appellate, court and the issues of fact, as well as those of law, are before the court for review, and although incompetent testimony may have been admitted by the trial court, the appellate court will sift the competent from the incompetent and render the proper judgment, and will not consider mere questions of the admissibility of evidence, and the ruling of the chancellor thereon.</p> <p>2, DEEDS OF TRUST: Mortgages: Foreclosure Sale: Authorized Sale: Principal and Agent: Ratification. In a suit to foreclose a deed of trust the defense was that there had already been a valid foreclosure sale under the deed of trust by the sheriff as acting trustee several years previously. The plaintiff claimed that such foreclosure was not valid for the reason that the foreclosure sale had not been ordered by the holder of the note or his authorized agent. The evidence is examined and held, to show that the sale was ordered by the loan agent of the holder of the note; that the agent at the time had no authority to order the sale, but on notifying his principal that the property had been advertised for sale under the deed of trust the principal had fully ratified the same, then the sale was valid even though the loan agent had subsequent to the sale notified his principal that the sale had not taken place and the fact that the agent had embezzled the proceeds of the sale would not effect the ratification.</p> <p>3. -: -: -: -: A foreclosure sale of a deed of trust made without authority of the legal holder of the note, would in a controversy between the owner of the note and the purchaser at the sale, be declared void.</p> <p>4. -: -: -: -: -, In a suit to foreclose a deed of trust, the defense was that there had been a valid foreclosure of the deed of trust several years previously; plaintiff claimed that the first foreclosure’had not been authorized by the legal holder of the note; it appeared that the sale had been authorized by the loan agent of the owner of the note, but this agent had no authority to order the sale. There was no evidence that the agent made any representations or claims to the purchaser at the first foreclosure sale that he was acting in any respect as the agent of the owner of the note, and there was no .proof that such purchaser relied in any way upon the acts of the agent. Held, that the doctrine of estoppel would not apply.</p> <p>5. -: —-: -: -: -: Agent to Collect Not Agent to Authorize Foreclosure. An agent to collect an interest coupon or a note, secured by a mortgage or deed of trust, containing a 'power of sale, has no implied authority, by reason of such agency, to order the foreclosure of the mortgage.</p> <p>6. -: -: -: -: Burden on Purchaser to Show Authority to Foreclose. At a foreclosure sale under a deed of trust, it appeared that neither the sheriff, who acted as trustee in making the sale, nor the purported agent of the owner of the note, who had ordered the sale, had possession of the note or deed of trust, field, under such circumstances that it was incumbent upon those purchasing at the sale in a suit where the validity of such sale was questioned, to show that either the agent or the sheriff had express authority from the holder of the note and deed of trust to foreclose.</p> <p>7. -: -: -: -: -. The purchasers of land at a trustee’s sale have no right to assume or presume that the sheriff, as acting trustee, was authorized to foreclose the deed of trust. They are required at their peril to determine whether or not he had such authority.</p> <p>8. -; -: -r-: -: Principal and Agent: Ratification. Where a loan agent had ordered a foreclosure sale under a deed of trust, and had notified the general agent of the holder of the note that the sale had been ordered, and said general agent fully ratified the act of the loan agent in ordering the sale, it is not material that the sale had actually taken place without the knowledge of the general agent at the time he ratified the action of the loan agent in ordering the sale.</p> <p>9. PRINCIPAL AND AGENT: Authority to Collect Notes: Assumption of Authority. Where a principal knowingly permits an agent to assume authority to collect notes or holds him out to the public or to the maker of the note as possessing such authority, and money is paid to him in reliance thereon, the payment will be good, although no authority in fact was given.</p> <p>10. -: Authority From Principal. No one can become the agent of another, except by the will of the principal, either expressed, or implied from the particular circumstances.</p> <p>11. -: -: Custom: Usage. Any usage or custom pertaining to any particular business will not affect the principal nor enlarge the scope of the agent’s authority, if not known to the principal at that time, unless it has existed for such a length of time and becomes so widely known as to warrant the presumption that the principal had it in view when he appointed the agent.</p> <p>12. -: General Agents: Private Restrictions. When the principal puts an agent forward as a general agent, though in a particular line, or places him in a position where others are justified in the belief that his powers are general, the restrictions that may be imposed upon him privately will be immaterial except between him and his principal.</p> <p>13. -; Ratification. The ratification of a part of an action of an agent is a ratification of the entire transaction.</p> <p>14. -: -: Existing Agency: Sufficiency of Evidence To Show Ratification. Where an agency has been shown to exist between the parties the facts will be liberally construed in favor of the approval by the principal of the act of the- agent, and very slight circumstances will sometimes suffice to raise the presumption of ratification.</p> <p>15. -: -: Ratification Cannot be Repudiated. A ratification when once made becomes irrevocable and cannot after-wards be repudiated by the principal.</p>

—Hon. J. 0. Sheppard, Judge. (1) The court erred in overruling the defendant’s exceptions to the referee’s report for the reason that the referee had improperly overruled defendant’s application for a continuance. Campbell v. McCaskill, 88 Mo. App. 44; Shoe Co. v. Hilig, 76 Mo. App. 301; Distilling Co. v. Van Frank, 88 Mo. App. 50.

—Hon. L. B. Woodside, Judge. (1) There is only one count in this information, and there are four separate and distinct charges, one that defendant did unlawfully permit one crap table, upon which dice are used, and one poker table, upon which cards are used, to be set up and used; to set it up is one offense and to use it is quite another offense; here it is charged that the two tables have been set up, which is two offenses, and two tables have been used, which, under the…

—Son. Henry L. Bright, J udge. (1) When the defendant Coyne, showed to the court that he had a meritorious defense and the decree of diligence had been employed which the evidence here established, and taking into consideration the conduct of the plaintiff from the beginning of this cause until the day on which the default judgment was» entered, it was the duty of the trial judge to set aside the interlocutory judgment. Adams v. Hinchman, 43 Mo. 168;Robinv.Pub.

—Hon. W. N. Evans, Judge. (-1) It is essential- to a donation inter- vivos - that the gift should go into immediate effect, that it be absolute and irrevocable, and that the donor part with all present and future dominion over the property given and that theré be an absolute delivery. In re Soulard,. .141 Mo. 642; Dunn v. Bank, 109 Mo. 97; McCord v. McCord, 77 Mo. 166; Shafer v. Manning, 132 111. App. 570; Howe v. Ripka, 199 Mass. 359; Stark v. Kelley (Ky.), 113 SW. 498..

<p>Appeal from Dade Circuit Court.—Hon. B. G. Thurman, Judge.</p>

<p>1. ASSIGNMENTS: Assignment of Future Wages: Equity: Justices’ Courts. One, Patrick, executed an assignment of wages to the plaintiff. The instrument • attempted to assign future wages from his present employment as well as from any subsequent employment, and covered a period of one year from the date of its execution. At the time of the assignment, Patrick was employed by a mining company. Later he was employed by defendant, who refused to recognize the assignment of wages when notified by the plaintiff, and a suit was instituted before a justice of the peace on the assignment, against the defendant to recover wages due Patrick sufficient to pay Patrick’s indebtedness to plaintiff- Held, that any right of action plaintiff had was an equitable right and the same could not be enforced in an action at law before a justice of "the peace.</p> <p>2. -: Choses in Actions. The trend of modern decisions is in the direction of enlarging and protecting more fully the rights of assignees of choses in action, and the necessary effect of our reformed code of procedure, which requires actions to be brought in the name of the real party in interest, is to change to a large extent the right acquired by an assignee of such chose in action from an equitable to a legal right.</p> <p>3. -: Assignment of Future Wages: Present Contract. An assignment of prospective wages to be earned under a contract of employment then existing although the contract‘may be indefinite as to time and amount, is held to create a legal right in the assignee, whether such assignment was intended as a present sale or a mere security for present or future advancements. But the rule is different where the assignment covers wages that may be earned in the future under an employment not then existing. Such an assignment will convey only an equitable right.</p> <p>4. -: -:--: Without a present contract of employment there cannot be a valid assignment at law or equity of wages to be earned in the future, for the reason that under such circumstances future earnings constitute a mere possibility not coupled with an interest.</p> <p>5. -: -: —;--: Future Contract. Future wages that may possibily be earned under some employment not then existing, cannot, strictly speaking, be assigned, but an attempted assignment of such wages might create an equitable right, enforcible in equity, should the assignor actually obtain such future employment and earn wages thereunder.</p> <p>6. -: Mortgages: Property to be Acquired in the Future: Equity. A sale or mortgage of property to be acquired in the future does not operate as an immediate alienation at law, but it does operate as an equitable assignment of the present possibility, which changes it to an assignment of the equitable ownership as soon as the property is acquired by the vendor or mortgagor.</p> <p>7. COURTS: ' Jurisdiction: Equity. The courts of law have no jurisdiction to enforce a right which is purely equitable.</p> <p>8. JUSTICES' COURTS: Equitable Liens. A justice of the peace has no jurisdiction over the foreclosure of an equitable lien.</p> <p>9. —:-: Equitable Assignments. A right under an equitable assignment of future wages that may be earned under an employment not then existing, cannot be enforced in a justice’s court.</p>

—Son. John T. Moore, Judge. (1) The court erred in refusing to sustain the demurrer offered at the close of respondent’s evidence and in refusing appellant’s request for a peremptory charge at the conclusion of all the evidence in the case. Dunn v. Nicholson, 117 Mo. App. 377; Seila v. Railroad, 82 Mo. 435; McCarty v. Hotel Co., 144 Mo. 402; Richardson v. Mesker, 171 Mo. 674; Mathews v. Railroad, 227 Mo. 250; Hartman v. Muehlebach, 64 Mo.

—Eon. James T. Neville, Judge. (1) The negligence alleged was leading “a wild and unruly mule” in a “careless and negligent manner.” There was a total failure of proof. The mule was quite gentle. A careless manner of leading a gentle mule is not alleged. In order to recover plaintiff was obliged to prove that the mule was wild and that defendant knew it. Cathorn v. Walsh, 7 Mo. App. 588; O’Neil v. Blase, 94 Mo. App. 662.

—Hon. L. B. Wood-side, Judge. (1) The burden of proving fraud rests upon him who charges it, and must be by clear and convincing evidence. Disberger v. Harrington; 28 Mo. App. 632; State ex rel. v. Hope, 102 Mo. 410; Peters v. Miller, 53 Mo. App. 640; Jackson v. Wood, 88 Mo. 76; Taylor v. Crockett, 123 Mo. 300; Tison y. Lahaume, 14 Mo. 128; Naster v. Truesdale, 57 Mo. App. 535. (2) A party sui juris will not be permitted to show that he did not read or hear* a contract read.

—Hon. L. B. Wood-side, Judge. (1) An application for a continuance is addressed to the sound discretion of the trial court, but such discretion is judicial and is subject to review on appeal. Distilling Co. v. Van Prank, 80 Mo. App. 50; Alt Vj Groseclose, 61 Mo. App. 409; Barnum v. Adams, 31 Mo. 532; Nichols v. Grocer C'Q., 66 Mo. App. 320; State v. Maddox, 117 Mo. 667; Fuert v. Caster, 174 Mo. 299.

—Hon. B. G. Thurman^ Judge. (1) A general reputation cannot be shown by the-character of business engaged in or by reputation attaching generally to the business. State v. Duffy, 124 Mo. 1; State v. King, 78 Mo: 555. (2) Evidence assailing the character of a witness must be on lines of general reputation. State v. Grant, 79 Mo. 113; State v. Bradford, 79 Mo. App. 346. (3) The evidence fails to show the adoption of the so-called Local Option Law.

—Hon. L. B. Woodside, Judge. (1) The testimony in the whole case fails to show that defendant owes plaintiff anything, or that he obtained any money from him, or promised to pay him anything. Morelock v. Railroad, 112 Mo. App. 610, 87 S. W. 6. (2) The guaranty of the payment of an obligation is an independent contract, and must be supported by an independent consideration. Osborne & Oo. v. LaAVSon, 26 Mo. App. 519.

—Eon. J. G. Sheppard, Judge. (1) Plaintiff’s petition wholly fails to state a cause of action against these defendants, and particularly the defendant, John S. Guhman. The note set out in the petition shows that defendant John S. Guhman is not liable thereon under the other facts pleaded. R. S. 1909, sec. 9989, Laws 1905, page 243; R. S. 1909, sec. 9991; Baum v. Stephenson, 133 Mo. App. 187; Joplin v. Hollingshead, 123 Mo. App. 602; Tate v. Railroad, 131 Mo.

<p>1. APPEAL AND ERROR: Practice: Criminal Law: Exceptions: Motion for New Trial. In criminal cases matters of exceptions must be preserved in a motion for a new trial and only matters of exception so preserved are before tbe appellate court for review.</p> <p>2. CRIMINAL LAW: Slander: Sufficiency of Evidence. In an action for slander the evidence is held sufficient to justify submitting the case to the jury on the question as 'to whether or not the slanderous words were uttered as charged.</p> <p>3. -: -: Instruction. In an action for criminal slander, where the information, charged defendants, with having said that a certain married woman was a bitch and a whore, it was held proper to refuse an instruction which told the jury that they should find defendant not guilty if they believed the woman had been guilty of adultery or fornication before her marriage; the effect of the instruction being to include any illicit intercourse with her husband before her marriage, which would not excuse the slander.</p> <p>4. -: -: Defense. It is not the law that a man can charge that a woman is a whore and then escape punishment by showing that at some earlier time in her life she had improper intercourse with a man she afterwards married.</p>

<p>Appeal from Dade Circuit Court.—Hon. B. G.. Thurman, Judge.</p>

<p>1. CORPORATIONS: Rejuvenating Non-Active Corporation: Liability of Stockholders: Collateral Attack. A mining corporation was organized in 1899, a charter procured and the company operated for two years, until it had expended its capital, when it quit active business. One of the defendants then purchased all the stock of this corporation. In 1909, in order to encourage other mining operations, this defendant transferred a certain number of shares of stock in this corporation to all those who paid in a certain amount for the purpose of promoting this mining enterprise. The mining operations were carried on in the name of the corporation and while so operating certain goods were sold to the corporation for which it was unable to pay, and this suit was against those who held shares in the corporation, to recover the price of the goods sold, on the theory that they were liable as individuals, because they were operating under the name of a defunct corporation with a claimed capital stock greatly in excess of the value of the property owned by the company, in order that they might get credit and also escape personal liability. It appeared in evidence that the plaintiff and his assignors, were familiar with the re-organization of this corporation and sold and gave credit to the corporation with full knowledge thereof. Held, that the stockholders were not individually liable for the debts of the corporation, and that plaintiff could not attack the existence of the corporation in this collateral proceeding.</p> <p>2. -: False Representations: Liability of Stockholders: Pleading: Sufficiency of Petition: Sufficiency of Evidence. Plaintiff sought to hold the defendants jointly and severally liable on the theory that he had extended credit for goods sold, because they had falsely represented that they were stockholders in a corporation with a capital stock of $5000, fully paid up, when in fact no such corporation had been organized. The petition is held, to state a cause of action, but the evidence is examined and held that it did not show defendants made any false statements as to the property owned by the corporation, or its capital stock, or any other statements to induce the sale of goods or the giving of credit to the corporation.</p> <p>3. -: Dealing With Corporation: Estoppel to Deny Existence: Irregularities in Organization: Charter Not Issued. The general rule is that where a person has contracted and dealt with another, as a° corporation, he would be estopped in a proceeding wherein such dealings are in issue, to deny the existence of the corporation, but this rule has been limited to those cases where there are irregularities in the organization of a corporation and has not been extended to cases where no charter has been obtained from the Secretary of State.</p> <p>4. -: Dissolution: Judicial ^Determination. A corporation ■ is not to be deemed dissolved by means of any misuser or nonuser of its franchise, until default has been judicially ascertained and declared.</p> <p>5. -: -: Non-Active Corporation: Stock Owned by One Person. A corporation is not dissolved by the mere fact that it has ceased to transact business for several years; that it owns no property and all of the stock of the corporation is owned by one individual.</p> <p>6. -: -: Matters Not Effecting Dissolution. A dissolution is not effected by a failure to elect officers; by a sale or assignment of all the corporate property; by the fact that one person owned all the stock; by a cessation of all corporate business; by death of all its stockholders; by insolvency; nor in all cases, by a consolidation with another corporation under statutory authority. For certain purposes, however, such as rendering stockholders liable on their statutory liability or relieving directors from a penal liability, dissolution is held to arise by some of these acts.</p>

—Hon. L. B. Wood-side, Judge, (1') The petition alleges specific acts of negligence and it was error to instruct on other acts not pleaded. Gilber v. Railroad, 128 S. W. 791; McNamee v. Railroad, 135 Mo, 440; Waldheir v. Railroad, 71 Mo. 514; Mc-Grath y. Transit Go., 94 S. W. 872; Evans v. Railroad, 121 S. W. 36; Anderson y. Railroad, 130 S. W. 82; Onristian v. Ins. Go., 143 Mo. 469.

—Hon. G. H, Bkinker, Judge. (1) The court should have given defendant’s peremptory instruction to the jury to find the issues on its behalf.

<p>APPELLATE PRACTICE: Printed Abstract. Section 813, Revised Statutes 1899, as well as tlie rules of all the other appellate courts require that a printed abstract of the record be filed and this is necessary even though there may be a complete typewritten transcript on file with the clerk of the appellate court.</p>

—Hon. Alexander H. Waller, Judge. (1) Plaintiff’s petition taken in connection with the opening statement of counsel to the jury does not state a cause of action and defendant’s objection to the introduction of any testimony under the petition should have been sustained. Pratt v. Conway, 184 Mo. 291; O’Keefe v. United Railways, 124 Mo. App. 618; Oscanyn v. Arms Co., 103 U. S. 261.

—Hon. Francis J. Trimble, Judge. (1) The court committed error in overruling defendant's demurrer to the evidence for the reason that plaintiff’s own testimony failed to show that he was either the procuring cause of the sale or had performed his contract within a reasonable time. Bassford v. West, 124 Mo. App. 248; McLaughlin v. Hardin, 183 Mo. App. 605; Mead v. Arnold, 131 Mo.

<p>1. MASTER AND SERVANT: Negligence: Assumption of Risk. The risks assumed by a servant as a part of his contract of employment were those which naturally inhered in the work of removing a rocky bluff by the process of blasting the rock and shoveling away the loose materials produced by such blasting. One of the effects of blasting, in a rocky wall, is to shatter and crack the rocks remaining in the wall after the blast and the ordinary dangers to the servants employed to shovel the loose rock resulting from such effects, are to be-regarded as natural dangers of the employment for which the master is not liable.</p> <p>2. -: -: Duty of Master. But the fact that the work conducted by the master changes the conditions of the place in which the servant is required to labor does not absolve the master from the duty to exercise reasonable care to avoid the enhancement of the natural risks of the employment.</p> <p>3. -: -: Inspection. Where the servant had neither opportunity nor skill to make an inspection of the place where he was required to work, and there was no appearance of imminent danger, he had a right to rely on the assurance of the foreman that the place was safe.</p>

—Eon. James, E, Blovcr} Judge. The court erred in not sustaining defendant’s motion in arrest of judgment for the reason “that the petition on its face does not state facts sufficient to com stitute a cause of action.” • The court erred in overruling the defendant’s motion for a new trial, for the reason that the peremptory instruction in the nature of a de^ murrer to the evidence asked by defendant at the close of plaintiff’s case and renewed at the conclusion of all of the…

—Hon. E. E. Porterfield, Judge. (1) The demurrer to the evidence should have been sustained. (2) The appellant had the right to conduct its business in its own way, and respondent assumed all the risks and dangers ordinarily incident thereto., (3) Appellant was not guilty of negligence because it furnished sufficient men, with the use of the trucks, dollies, derricks, and other appliances furnished, to safely perform the work of removing the cog-wheel in question.

—Hon. Hermann Brumbaclc, Judge. (1) The court erred in overruling the demurrer to the evidence and in refusing to instruct the jury by mandatory instruction to find for the defendant because (1) the jury was caused by the negligence of the deceased and his co-servants; (2) because the deceased assumed the risk, and (3) because the defendant was not guilty, of negligence. (1) The injuries were caused by the' negligence of the deceased and his co-servants.

—Hon. John P* Butler, Judge. (1) Errors in admission of evidence which caused a reversal on the last appeal, were again committed by the admission of the same evidence. The court erred in admitting evidence as to the condition of the hand car long before and long after the accident and as to repairs made upon it before and after the accident. This evidence did not prove the condition of the car at the time of the accident and was clearly erroneous and prejudicial.

—Hon. W. 0. Thomas, Judge. (1) The distinction is clearly drawn, in our authorities, between a preferred creditor who. receives from an insolvent- debtor enough goods to pay or secure his claim, and a volunteer purchaser from such insolvent. The preferred creditor is protected, provided he does not further participate in the fraud of the debtor than by accepting the goods with knowledge of his fraudulent intention.

—Eon. Herman Brumback, Judge. (1) The court erred in not sustaining plaintiff’s motion to discharge the jury for the reason that the testimony introduced by the defendant that the plaintiff was in a pool, trust or combination was of so highly a prejudicial nature as to influence the jury in their verdict. Cobb y. Griffith, 12 Mo. App. 130; Meyer y. Lewis, 43 Mo.

<p>1. PRINCIPAL AND SURETY: Release: Composition. Plaintiff sued on a warehouse bond given by defendant as surety. The principal went into bankruptcy, and was discharged from liability by a composition with its creditors. Held that under sec. 16, Bankruptcy Act of 1898, the release of the principal in bankruptcy did not operate to release the surety on the bond.</p> <p>2. -: Judgment: Joint and Several Bond. Where the bond is joint and several judgment may be taken against the surety without first proceeding against the principal.</p> <p>3. -: A/Varehouse: Fraud. Where it is shown that the property described in a warehouse receipt was not found in the warehouse and not accounted for, the jury may presume that the receipt was fraudulently issued, and that the property was not in the warehouse when it was given.</p>

Appeal, from Pettis Circuit Court.—Hon. Charles Hoffman, Judge. (1) Where the property is in the hands of several brokers, the commission is due the broker, who is the procuring cause of the sale. Wright et al. v. Brown, 68 Mo. App. 577. Where two or more real estate brokers are employed to sell the same property, the commission is to be paid to whoever makes the sale. Votane v. Mc-Keever, 76 Kan. 870.

C. A. Masman, Judge. (1) The evidence clearly shows that to handle a substance containing twenty-eight per cent of carbolic acid, is dangerous to the human body, and especially to the eye; and respondent being ignorant of what the substance contained, and appellant having actual knowledge thereof, and failing to warn respondent and notify him of what the substance contained, and the danger in handling it, the demurrer to the evidence was properly overruled.

—Hon. John B. Butler} Judge. (1) There is no evidence tending to establish an express contract, and no proof of facts and circumstances from which an implied contract can reasonably be inferred. The casual declarations alleged to have been made by deceased are wholly insufficient to justify the inference of a contract. The legal presumption are against plaintiff. The defendant’s demurrer should have been sustained. Birch v. Birch, 112 Mo. App. 163; Lawrence v. Bailey, 84 Mo.

—Hon. Charles Hoffman, Judge. (1) Liability does not follow every negligent act even though injury does ensue. There can be no recovery unless the negligence pleaded was the proximate cause of injury, that is, was an act which, in natural and continuous sequence, unbroken by any new responsible cause, produced the injury. Hicks v. Railroad, 46 Mo. App. 309; Oats v. Railroad, 168 Mo. 548.

—Eon. E. L. Mc~ Cune, Judge. (1) In the absence of mistake or fraud, parol evidence is not admissible to vary, add to or in any way change the terms of a written contract. Boggs v. Laundry Co., 171 Mo. 282 1. c. 287 and cases cited; Harrington v. Com. Co., 107 Mo. App. 418; Dexter v. McDonald, 196 Mo. 873 1. c. 391, and cases cited; Smith v. VanWyck, 40 Mo. App. 522; Osborne & Co. v. Lawson, 26 Mo. App. 549.

—Hon. James H. Blover, Judge. Instruction No. 4, given by plaintiff’s request, was erroneous in that it allowed the jury to consider the expense of physicians, and nurses, and medicines, although there was no evidence of any such items of expense. Duke v. Railroad, 99 Mo., 347; Culberston v. Railroad, 50 Mo. App 556; Waldofel v. Transit Co., 102 Mo. App. 524; Gibler v. Terminal Railroad Assn., 203 Mo. 208; Nixon v. Railroad, 141 Mo. 440. 2.

—Hon. E. E. Porterfield, Judge. (1.) The court erred in admitting the immaterial testimony of Jesse Horr, as to the condition in which he found his wife the evening after the accident. Greenleaf on Evidence (13 Ed.), sec. 52; Smith v. Young, 26 Mo. App. 515; Gorham v. Auerswald, 53 Mo. App. 131; Ritter v. Bank, 87 Mo. 574.

—Hon. A. H. „ 'Waller, Judge. The court erred in granting the decree of divorce, as the evidence shows that plaintiff is not the injured and innocent party, (a) A party seeking a divorce must, as in a court of equity, come into court with clean hands and must be both an injured and innocent party. Tarlotting v. Tarlotting, 82 Mo. App. 201; Morrison v. Morrison, 62 Ma. App. 299; Lawler v. Lawler, 76 Mo. App. 637.

Thomas' J. Seehorn, Judge. (1) To take a case out of the Statute of Limitations, there should be either an express promise to pay or an acknowledgment of an actual subsisting debt, on which the law would imply a promise, and it will be sufficient -if the party acknowledges the indebtedness, and that it remains unpaid, without any expression of willingness to remain bound.

—Hon. E. E. Porterfield, Judge. (1) The court erred in refusing to instruct the jury as requested at the close of plaintiff’s evidence, and again at the close of all the evidence that the plaintiff was not entitled to recover and to return a verdict for defendant . The evidence failed to establish that the mule was killed at a “place where the railroad crosses a traveled'public road or street.” Sec. 3140, R. S. 1909; State v. Transue, 131 Mo.

<p>Appeal from Jackson Circuit Court—Hon. Thomas J. Beehorn, Judge.</p>

John G. Park, Judge. (1) The supplemental motion for a new trial and affidavits in support were filed after the expiration of four days after the trial, and. the court was without jurisdiction to grant a new trial thereon, or to allow same to be filed. R. S. 1899, sec. 80; King v. Gilson, 206 Mo. 278; State v. Welsor, 117 Mo. 582; State v. Roy, 53. Mo. 319, State v. Rockett, 87 Mo. 666; State v. Butler, 67 Mo. 63; State v. David, 159 Mo. 531; Allen y. Brown, 5 Mo. 323.

<p>1. MASTER AND SERVANT: Guarded Machinery: Pleading: Same Cause of Action. Where an action is brought under section 7828, R. S. 1909, providing for the guarding of machinery or the posting^of notice of danger, the petition should allege facts which show the statute has been violated and therefore it should state that the machinery was so placed as to be dangerous to employees while engaged in their ordinary duties and that though it could be guarded it was not. And if the lack of notice is relied upon, it should be alleged that there was no notice posted. Where the petition is based only upon the failure to guard when it could be done, there can be no recovery for failure to post a notice.</p> <p>2. -: -: -: Evidence. If the petition declares on both a failure to guard the machinery as directed by section 7828, R. S. 1909, when it could be done, and a lack of notice, and it is shown that there was no guard and no notice, a case is made against the operator without going further and showing that the machinery could have been guarded. But if the petition is based on the clause of the statute requiring the machinery to be guarded if it can be, and it is shown that it can be, then the operator is not exonerated by showing that he posted a notice. (Millsap v. Beggs, 122 Mo. App. 1, distinguished.)</p>

<p>MUNICIPAL CORPORATIONS: Defective Sidewalk: Knowledge: Contributory Negligence. Plaintiff was walking along a board sidewalk in a city, at noontime. Sbe had not been there before. She was preceded a few feet by her son, a lad 15 years old, who turned and warned her that the boards of the walk were loose and in bad condition. She saw that they were, but thought she could get along safely, and in attempting to step over a bad board onto one that looked to her be sound, it broke and flew up and she fell, receiving serious injury. The board was rotten underneath and loose from the stringers. The street proper was paved and plaintiff could have' left the walk for the street. It was held, that the plaintiff was not precluded, as a matter of law, from recovering; and that the question of her contributory negligence was for the jury.</p>

Herman Brumbaek, Judge. Plaintiffs brought suit against the defendants to enjoin them from using a certain electric illuminating sign, alleging that it was an infringement upon plaintiffs’ trade-mark used in different places in Kansas City, and that the two signs were so similar in appearance as to be misleading.

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

<p>Appeal from Jackson Circnit Court.—Hon. E. E. Porter-field, Judge.</p> <p>(1) Tbe evidence on the part of plaintiff is in conflict with physical facts. Zaloutchin v. Met. St. Ry. Co., 127 Mo. App. 584; Spiro v. St. Louis Transit Co., 102 Mo. App. 250; Spohn v. Railroad, 87 Mo. 74; Nicholson v. Cigar Co., 158 Mo. 159; Payne v. Railroad, 136 Mo. 562; Hook v. Railroad, 162 Mo. 569; Kelsav v. Railroad, 129 Mo. 362; Oglesby v. Railroad, 177 Mo. 272; Weaver v. Railroad, 60 Mo. App. 207. (2) There was no negligence on the part of defendant. Minnier v. Railroad, 167 Mo. 99; Chrismer v. Telephone Co., 194 Mo. 208; Bohn v. Railroad, 106 Mo. 433; Steinhauser v. Spraul, 127 Mo. 562; Blanton v. Dold, 109 Mo. 74; Blundell v. Miller Mfg. Co., 189 Mo. 552. (3) The risk of injury from switch stand was assumed by plaintiff. Jackson v. Railroad, 104 Mo. 457; Hollingsworth v. Biscuit Co., 114 Mo. App. 23. (4) Evidence of no previous accident was admissible. Kappes v. Shoe Co., 116 Mo. App. 167; Rodgers v. Meyerson Ptg. Co., 103 Mo. App. 689; Fuques v. St. Louis, 167 Mo. 645. (5) Consideration of certain cases. Murphy v. Railroad, 115 Mo. Ill; Charlton v. Railroad, 200 Mo. 419; Swearingen y. Railroad, 221 Mo. 661; George y. Railroad, 225 Mo. 864. (6) Instructions. Henson y. Stone Co., 131 S. W. 934.</p> <p>(1) There can be nothing advanced against defendant’s contention that if physical facts are in absolute conflict with the evidence upon which plaintiff relies for recovery, the case must be reversed. The authorities are not, and cannot be helpful in solving this contention, since each case must depend upon its own peculiar facts. By the argument hereafter presented, we hope to demonstrate that there are no physical facts in the record of this case which stand in the way of respondent’s recovery. (2) Appellant contends that there was no negligence on the part of the defendant. If the switch stand was placed and maintained by the defendant company in such close proximity to the track upon which its trains were operated as to render possible the happening of such an occurrence as was. testified to by the plaintiff, then it goes without saying that such construction was a negligent construction. Tewksbury v. Street Railway, .134 S. W. 682, and cases therein cited; Charlton y. Railroad, 200 Mo. 413; George v. Railroad, 225 Mo. 364. (3) There is and can be no question of assumed risk in this case. A servant never assumes any risk arising from the master’s negligence. This question has recently been most fully considered by our Supreme Court and the law most definitely fixed. Jewell v. Bolt & Nut Co., 132 S. W. 703. This case so fully considers the law upon this question and is so satisfactory upon the very question here involved that no other cases need be cited. (4) Evidence of no previous accidents at this place was not admissible. Appellant’s authorities, are not in point. The exact question has been decided by this court in an opinion by Judge Broaddus, in which all concur. Kelley v. The Parker-Washington Co., 107 Mo. App. 495; Gryce v. Railroad, (la.) 72 N. W. 781; Railroad y. Vallowe, 115 111. App. 626, affirmed 214 111. 124; Same case, 73 N. E. 416; Burgess v. Davis Sulphur Ore Co., 165 Mass. 71. (5) Instruction No. 2, given for plaintiff, is correct. It declares that plaintiff- did not assume, or contract with reference to any risk or danger arising, or resulting from any negligence on the part of the defendant, if any, in failing to furnish plaintiff with a reasonably safe place in which to work. Negligence is by all lexicographers defined to be the want of ordinary care. Wencker v. Railroad, 169 Mo. 598.</p>

—Eon. L. J. Easlin, Judge. (1) The court erred in holding that an election was necessary for a widow to claim her statutory allowance of a child’s share in her deceased husband’s property, and erred in holding that by her acts she elected to take the property bequeathed and devised to her under the terms of the will not only in lieu of dower in the real estate but also in lieu of her child’s share in the personal property, and also erred in holding that by taking the $2000…

—Hon. H. L. MoCune, Judge. (1) The court erred in refusing to give a peremptory charge in favor of the defendant. There was no evidence to authorize a verdict on either specification of negligence. Nellis, Street Railroad Accident Law, pp. 59, 183; Fuchs v. St. Louis, 133 Mo. 201; Fuchs v. St. Louis, 167 Mo. 645; Aldrich v. Transit Co., 101 Mo. App. 90; Sherman & Redfield Neg. (4 Ed.), sec. 59; Lee v. Jones, 181 Mo. 298; Glasscock v. Dry Goods Co., 106 Mo. App. 663.

<p>1. DIVORCE: Habitual Drunkenness: What is. One is an habitual drunkard, within the statute making habitual drunkenness for one year ground for divorce, who has a fixed and irresistible habit of drunkenness, having by frequent indulgence lost the power or will to control his appetite, and it is not necessary that he be continually drunk or that his drunkenness incapacitate him for work, for a man may be an habitual drunkard, and yet be sober during business hours and for days and weeks together. • •</p> <p>2. -; Desertion of Wife as Bar: Reasonable Cause. In an action for divorce, brought by the wife, in order for her desertion of her husband to operate as a bar, such desertion must have been without reasonable cause; and the husband’s conduct may have been such as to warrant her action, although it would not entitled her to a divorce.</p> <p>3. -: Habitual Drunkenness of Husband: Desertion of Wife as Bar: Reasonable Cause. Where a wife had for more than sixteen months been subjected to her husband’s habitual drunkenness and the evil consequences of that habit, she was not guilty of desertion in refusing to abide with him or see him when he called. ,</p> <p>4. -: -: Reformation. The fact that a defendant becomes cured of his drink habit, after he had been addicted to it for more than the statutory period of one year and suit for divorce on that ground had been commenced, will not defeat plaintiff’s right to a divorce.</p> <p>5. -: Admission of Incompetent Testimony: Harmless Error: Appellate Practice. Appeals in divorce cases are determined according to the rules applicable in equity 'cases, and the admission of incompetent evidence will not warrant a reversal, where the same facts were established by competent evidence introduced by both parties, and where, after disregarding such incompetent evidence, the decree is in accordance with the weight of the evidence remaining.</p>

Louis City Circuit Court.—Hon. Mos.es N. Sale, Judge: (1) A mortgage of cbattles is invalid except as between the parties to it unless it be recorded in the manner prescribed by statute, or tbe mortgagee have possession of the chatties. R. S. 1909, sec. 2861. (2) Chattel mortgages being unknown at common law statutes permitting them are strictly construed. Porter v. Dement, 35 111., 478; Marsden y. Cornell, 62 N. Y. 215; Singer Mfg. Co. v. Shull, 74 Mo.