Volume 158 — Missouri Appeal Reports

— Hon. Alfred Page, Judge. (1) The deceased was a trespasser at the time and place of the injury. Thé evidence wholly fails to establish such open, known, free, extensive, continuous and nightly use of defendant’s track at the place, and at the hour of the injury as to have required defendant’s employees to be on the lookout for deceased at the time and place of his injury. No actual knowledge or acquiescence is shown.

— Hon. L. B. Woodside, Judge. It lias been held repeatedly that knowledge of facts and circumstances which would put a prudent man on inquiry is not sufficient, nor is mere suspicion that the note was obtained by fraud, nor is the proof of negligence on his part sufficient to defeat recovery. 7 Cyc. 944; Hamilton v. Marks, 63 Mo. 167; Dickey v. Adler, 143 Mo. App. 332; Reeves v. Letts, 143 Mo. App. 196; Playes v. Blaker, 138 Mo. App. 24; Bank v. Romi-nee, 138 Mo.

— Hon. Alfred Page, Judge. (1) Defendants openly avowed their severance, which was a withdrawal from the lawful organization of the church and the forfeiture of any rights to continued membership and control of the property. Brun-dage v. Dearorf, 55 Fed. 839; Boyles v. Roberts, 222 Mo. 654. (2) The distinction between the Cumberland Presbyterian Church and the Presbyterian Church, U. S. A. is vital. Boyles v. Roberts, 222 Mo. 654.

Original Proceeding in Mandamus. (1) Tlie test to be applied in determining the right to relief by mandamus is to inquire whether the party aggrieved has a clear, legal right, and whether he has any other adequate remedy, since the writ belongs only to those who have legal rights to enforce, who find themselves without an appropriate legal remedy. High on Extraordinary Legal Remedies (3 Ed.), sec. 10.

— Hon. J. D. Barnett, Judge. There was no notice served oh defendants to produce a dramshop license and it was a reversible error for the court to admit the evidence of the county clerk and county collector as to their records, the same being secondary evidencé. State v. Mulloy, 111 Mo. App. 696; State v. Barnett, 110 Mo. App. 592; State v. Sherman, 137 Mo. App. 74.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) This was not a proper case to allow parol testimony to prove a verbal contract which, under the Statute of Frauds, should be in writing.

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

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. An unrecorded mortgage is always good as between the parties. Section 3404, R. S. Mo. 1899, does not make an unrecorded mortgage a fraudulent conveyance. Sauerwein v. Renard Champagne Co., 68 Mo. App. 29. The effect of said section is simply to render said mortgage invalid as to creditors and purchasers from a mortgagor in possession. Rawley v. Bean, 80 Mo. 614; Landis v. McDonald, 88' Mo. App. 335.

<p>1. NEGLIGENCE: Injury to Servant of Independent Contractor: Liability of Owner of Premises. In an action for injuries to an employee of an independent contractor, where the conduct complained of was not that of the independent contractor, his servant, agent or sub-contractor, but was that of the owner’s own agent and servant, the doctrine that' one is not responsible for the negligence of an independent contractor, etc., is not applicable, but the case should be governed by the broad doc-, trine “that whenever one person is by circumstances placed in a position with regard to another that everyone of ordinary sense who did think would at once recognize that, if he did not use ordinary care and skill "in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of another, a duty arises to use ordinary care and skill .to avoid such injury.”</p> <p>2. -: -: -: Facts Stated. Plaintiff’s employer having contracted to put in a new cable on a hydraulic elevator in defendant’s hotel, plaintiff, a mechanic skilled in his trade (which did not include the operation of the hydraulic cylinder and valves by which the power was communicated to the elevator), after completing his work, with the exception of testing the elevator, went to defendant’s chief engineer who had complete charge of the hydraulic appliances and requested him to turn on the power. The engineer directed plaintiff how to turn the power on and informed him, after directing his actions, that the power was on, without knowing as a matter of fact whether or not it was on and without .taking any steps to ascertain that fact. Plaintiff betrayed his ignorance of the subject by questions asked the engineer concerning the functions of other valves than those used, and displayed his dependence upon the directions of the chief engineer and recognized the latter’s position and authority by obeying his directions implicitly and in detail. Plaintiff, after being assured by the engineer that the power was on, went beneath the elevator car, withdrew the safety stops, whereupon the car immediately fell on him, because the power had not in fact been turned on. Held, it is manifest that any one of common sense who thought would at once have recognized that plaintiff would rely upon the statement of the chief engineer that the power was on and that if the latter made the statement without exercising ordinary care to ascertain if it were true, lie would cause danger of injury to plaintiff, and the duty, therefore, devolved on defendant through its chief engineer to exercise such care; held, further, that the evidence justifies the inference that the elevator fell by reason of the fact that the power was not on, and that the engineer’s negligent conduct in inducing or causing plaintiff to release the safety catches upon the faith of the power being turned on was the proximate cause of plaintiff’s injury.</p> <p>3. -: -: Contributory Negligence: Question for Jury. In an action for injuries to a servant of an independent contractor by the fall of an elevator, due to the negligence of defendant’s chief engineer in informing plaintiff that the power had been turned on when in fact it had not, whether plaintiff was negligent in- acting on the engineer’s statement held for the jury.</p>

<p>1. GAMBLING CONTRACTS: Purchase and Sale of Grain: Intent to Gamble: Statute. Under sections 4780, 4781 and 4785, Revised Statutes 1909, a contract for the purchase or sale of grain is void, if either of the parties to it lacks intention to deliver or receive the grain, irrespective of the intention of the other party.</p> <p>2. -: Speculative Transactions: Statutes: Construction. Section 4780, Revised Statutes 1909, declaring that purchases and sales of grain, either on margin or otherwise, without any intention of delivering, receiving and paying for the same, ara unlawful, and imposing a fine for violation, is a penal statute and is to be strictly construed, and only such transactions are covered by it as are within both its spirit and its letter.</p> <p>3. -: Purchase and Sale of Grain: “Calls” Not Within Statute. A contract providing that, on demand made within a specified time, the seller would execute and deliver to the buyer a contract obligating himself to sell and deliver to the buyer within a certain time a certain quantity of grain for a stipulated price, known as a “call,” is not a contract for the purchase and sale of grain, but is a contract for a contract of purchase and sale; and such a contract is not within the prohibition of section 4780, • Revised Statutes 1909, since that statute speaks only of purchase and sales, or pretended purchases and sales, or contracts for the purchase and sale, of grain, etc., and does not apply to a contract for a contract of purchase and sale.</p> <p>4. -: -: “Calls:” Intention of Both Parties to Gamble. Where the real intention of doth parties to such a contract (known as a “call”) .is, that if the holder exercises his option, no contract for the purchase by the one party and sale by the other is to be made, but, in lieu thereof, the seller is to pay the holder the difference between the price agreed upon and the market price at the time of closing the “call,” or if the intention of doth parties is to make such contract of purchase and sale, but not to make delivery thereunder, and to settle hy paying the difference between the contract price and the market price, it is a mere wager and unenforcible.</p> <p>5. -: -: “Calls.” Such a contract (known as a “call”) will not be considered a wager merely because it is optional on one of the parties and obligatory on the other, or because it contemplates the execution of a contract to sell, for future delivery, grain which he who contracts to sell has not on hand but expects to go upon the market and purchase for delivery in pursuance of his contract, or because, if the contract to sell be entered into, the party contracting to purchase later sells the same quantity of grain to the party contracting to sell, and the parties, waiving cross-deliveries, then settle by paying the difference between the price at which they respectively bought.</p> <p>6. -: -: -: Presumption of Validity: Burden of Proof. Where such a “call” contract is legal on its face, the law will not presume against its validity; the burden of proving invalidity resting upon the party alleging it.</p> <p>7. -: -: -: Validity: Question for Jury, When. Whether the buyer and seller of a “call” contract for grain contemplated a delivery or a mere settlement of difference between market and contract prices is a question for the jury, unless the uncontroverted evidence is such that reasonable, minds could not differ as to the conclusion to be drawn therefrom.</p> <p>8. -: -: -: -. In an action to recover damages for the breach of a contract giving plaintiff the option, upon demand made within a specified time, to receive from defendant, and obligating defendant to execute and deliver to plaintiff, a contract for the purchase and sale of grain, where defendant pleaded the contract was void as being a wagering contract, held, the evidence was insufficient to justify the conclusion, as a matter of lawr, that the contract was a wagering one.</p> <p>9. PLEADING: Contracts: Variance. Where an action is brought on a special contract, the plaintiff can recover only on that contract.</p> <p>10. CONTRACTS': Pleading: Variance. Where plaintiff declared on a contract for the sale of wheat, alleging that, by the instrument sued on, it was agreed that on or before May 18th, upon demand of plaintiff, defendant would sell to plaintiff a quantity of wheat at a specified price for delivery in July, and alleging a demand by plaintiff that defendant sell to him such wheat and defendant’s refusal and that at the time of the demand and at all times, in accordance with the terms of the contract, plaintiff was ready, and offered, to pay for such wheat, but the proof related to a contract to make and enter into, oh demand, an executory contract to sell, there was a total failure of proof, and plaintiff was not entitled to recover.</p>

— jEon. David H. Eby, Judge. (1) Between joint wrongdoers no right of contribution exists, that one can be heard to complain that all guilty of the wrong have not been included in the same action or included in one common judgment rendered as the result of its prosecution.

<p>1. OFFICERS: County Treasurers: Examination of Books by County Judge: Enforcement of Right by Mandamus. Under section -3768, Revised Statutes 1909, a judge of tlie county court has the absolute right to inspect and examine the books and papers of the county treasurer through the agency of expert accountants, and this right will be enforced by mandamus; following State ex rel. Gay v. Reyburn, post.</p> <p>2. APPELLATE PRACTICE: Finding by Commissioner of Appellate Court: Conclusiveness. The appellate court will defer to the judgment of a commissioner appointed by it to take testimony on a disputed issue of fact and will adopt his conclusion of fact on conflicting testimony.</p>

<p>1. OFFICERS: County Clerks: Right of County Judge to Inspect Records: Statutory Construction. Section 3780, Revised Statutes 1909, conferring upon judges of the county court the right to inspect the public records in the office of the county clerk is remedial in character and makes for a high public benefit, and hence should be liberally construed.</p> <p>2. STATUTES: Statutory Construction: Statutes for Public Benefit. Statutes made pro dono pudlico' should be construed in such a manner that they may, as far as possible, attain the end proposed, and courts, in construing them, always look to the spirit as well' as the letter, and sometimes extend words of authority even beyond the letter, to the end of effectuating the intention of the lawmakers and preventing the mischief sought to be restrained.</p> <p>3. CORPORATIONS: Stockholders: Right to Inspect Books: Nature and Extent of Right. One who enjoys the right to inspect the books and papers of a private corporation may exercise it through expert accountants, stenographers, etc., and may make copies of the books in the company’s offices in a proper manner and during prpper hours.</p> <p>4. -: -: -: -: Mandamus: When Absolute Right and When Discretionary. Where a stockholder seeks to inspect the books and papers of a private corporation, mandamus is sometimes denied, in the discretion of the court, where it appears that the relator is not proceeding in good faith or desires the information to employ it against the interests of the company; but this rule does not obtain where a statute gives a stockholder the right to examine the books, for then mandamus goes as a matter of right.</p> <p>5. OFFICERS': County Clerks: Right of County Judge to Inspect Records: Right to Delegate Duty. The matter of inspecting the books and papers of a county clerk’s office is in no respect judicial in its character, but is purely ministerial;, and the law does not devolve it as a personal duty upon a judge of the county court which he may not delegate to another who is competent to perform the task.</p> <p>6. -: -: -: -: Enforcing Right: Mandamus. Where the legislature has prescribed a right to be exercised by a public officer, such as inspecting the books and papers of another officer, and has annexed to his office, under his official oath, a duty thereabout, the courts are without discretion in the matter of issuing mandamus to enforce the right, if the duty be a ministerial one and within the purview of mandamus.</p> <p>7. -: -: -: -: -: Mandamus. Under section 3780, Revised Statutes 1909, a judge of the county court has the absolute right to inspect and examine the clerk’s books, records and accounts, either by himself or through the aid of expert accountants, which right, if denied, is enforcible by mandamus, without reference to the purpose for which an inspection is desired.</p> <p>8. -: -: -: -: -: Mandamus. Section 3780, Revised Statutes 1909, having specifically prescribed the right of inspection of books and papers of a county clerk, and annexed such right to' the office of county judge and annexed the duty to permit such inspection to the office of county clerk, it is conclusively presumed on application for mandamus by a county judge to enforce such right, that it will not be abused, and the writ should go as a matter of course.</p>

Louis City Circuit Court. — Hon. George H. Williams, Judge. The lien account is insufficient to satisfy the statutory requirements, (a) It does not show what the materials are, the abbreviations used being unintelligible and not aided by the preliminary statement attached to the account. Brickworks v. Flanagan, 87 Mo. App. 340; Henry v. Plitt, 84 Mo. 237; Lumber Co. v. Stoddard Co., 113 Mo. App. 306; Schulenberg v. Werner, 6 Mo. App. 292.

Louis City Circuit Court. — -Hon. W. B. Homer, Judge. (1) Plaintiff was defendant’s guest, an invitee, for the purpose of riding around in its machine and witnessing its operation. When he undertook to operate it or “crank it,” he became a naked licensee, to whom defendant was liable only for willful or wanton injury. Shaw v. Goldman, 116 Mo. App. 332.

<p>Appeal from St. Louis City Circuit Court. — Eon. Charles Claflin Allen, Judge.</p> <p>(1) The test of a testator’s competency to make a will is, that he understood the business about which he engaged when he had his will prepared and executed it, knew the persons who were the natural objects of his bounty and understood his relations to them.and knew what property he had and the disposition he desired to make of it. Winn v. Grier, 217 Mo. 420; Weston v. Hanson, 212 Mo. 248; Archambault v. Blanchard, 198 Mo. 384; Sayre v. Trustees Princeton University, 192 Mo. 95; Story v. Story, 188 Mo. 110; Hamon v. Hainon, 180 Mo. 685; Crowson v. Crowson, 172 Mo. 691; Wood v. Carpenter, T66 Mo. 465; Riggin v. Westminster College, 160 Mo. 570; Sehr v. Linde-mana, 153 Mo. 276 ; Riley v. Sherwood, 144 Mo. 355; De Veld v. Judy, 143 Mo. 348; Cash v. Lust, 142 Mo. 630; McFadin v. Craton, 120 Mo. 253; Maddox v. Maddox, 114 Mo. 47; Conch v. Gentry, 113 Mo. 248; Jackson v. Hardin, 83 Mo. 175. (2) The influence exerted upon a testator which is sufficient to invalidate his will must he such as amounts to over persuasion, coercion or force, destroying the free agency of the testator, and not merely the influence of affection or attachment or the desire of gratifying the wishes of one beloved, respected and trusted by the testator. Conner v. Skaggs, 213 Mo. 234; Weston v. Hanson, 212 Mo. 248; Tecken-broek v. McLaughlin, 209 Mo. 533; Seibert v. Hatcher, 205 Mo. 101; Cowan v. Sharer, 197 Mo. 203; Campbell v. Carlisle, 162 Mo. 633; Riggin v. Westminster College, 160 Mo. 570; Martin v. Bowdern, 158 Mo. 379; Schierbaum v. Schemme, 157 Mo. 1; Sehr v. Linde-mann, 153 Mo. 277; Maddox v. Maddox, .114 Mo. 35; DeFoe v. DeFoe, 144 Mo. 545; Cash v. Lust, 142 Mo. 630; Jackson v. Hardin, 85 Mo. 175. (3) Instruction numbered 9, given for the plaintiff, is erroneous in that it requires the jury to find the testator capable of “sustained thought” concerning his property and the persons entitled to his bounty as a requisite to testamentary capacity. See authorities cited under point 1; Couch v. Gentry, 113 Mo. 248; Lorts v. Wash, 175 Mp. 487. (4) Instruction numbered 11 given for the plaintiffs is erroneous in that it undertakes to enlarge the issues made by the pleadings, by putting before the jury the issue of whether “those about the testator or any of them” exercised any influence over the testator to procure the will in question, whereas the petition charges the will to have been the result of the undue influence of the defendant John H. Brock-meyer and Wilhelmina C. Brockmeyer only. Wallack v. Transit Co, 123 Mo. App. 160; State ex rel. v. Dieckman, 124 Mo. App. 653; Feddeck v. Car Co., 125 Mo. App. 24. (5) Instruction numbered 12 given for the plaintiffs is erroneous because not predicated on the evidence. There was no evidence of any undue influence over the testator as charged in the petition. See authorities collected under, points 2 and 4.</p> <p>(1) Under the evidence, the court properly submitted the case to the jury on the issue of mental capacity. Holton v. Cochran, 208 Mo. 314. (2) Also properly submitted the case on the issue of undue influence. Undue influence need not be established by direct or positive evidence; the facts and circumstances may be such as to warrant its inference. Mowry v. Kettering, 204 Mo. 173; Bradford v. Blossom, 190 Mo. 110; King v. Gilson, 191 Mo. 307. And .where, as in the case at bar, a confidential relation is shown, and the bulk of the estate is given to strangers in blood, undue influence will be presumed as a matter of law. Harvey v. Sullens, 46 Mo. 152; Dingman v. Romine, 141 Mo. 466; Mowry v. Kettering, 204 Mo. 173. (3) Instruction No. 9, given for plaintiffs, correctly states the law. The mental capacity of a testator must be more than momentary; it is not enough that testator may have spasmodic flashes of intelli-genc’e sufficient to know his property, the natural objects of his bounty, etc.; he must know and retain the facts sufficiently long to be capable of understanding them and the act in which he is engaged; and that, moreover, without the prompting or aid of others. Orossan v. Crossan, 169 Mo. 631; Holton v. Cochran, 208 Mo. 422; Converse v. Converse, 21 Yt. 168; Roller v. Kling, 150 Ind. 159; 1 Woerner, Amur. Law Adm., sec. 23; 1 Redfield on Wills, sec. 15, subdiv. 9. (4) Instruction 11, given for plaintiff, is a correct and approved statement of the law. Moore v. McNulty, 164 Mo. 111. (5) Marked changes in a testator of mature years and in his love and affection for his children are of themselves strong evidence of his unsoundness of mind. Holton v. Cochrane, 208 Mo. 418.</p>

Louis City Circuit Court. — Boto. W. ■ B. Homer> Judge. (1) There was no evidence to sustain the verdict, and defendant’s peremptory instructions, one asked at the close of plaintiff’s evidence in chief and the other at the close of all the testimony, should have been given. Porter v. Railroad, 71 Mo. 66; Seila v. Railroad, 82 Mo. 430;, Gfutridge v. Railroad, 94 Mo. 468; Mensch v. Railway, 150 Pa.

Appeal .from St. Louis City Circuit Court. — Hon. George H. Williams, Judge. The weight of authority holds that it is competent for a fraternal beneficiary association to require a claimant to exercise his remedies by appeal within the order before resorting to an action at law to recover a benefit. McMahon v. Supreme Council, 54 Mo. App. 468; Colley v. Wilson, 86 Mo. App. 396; Kane v. Lodge, 113 Mo. App. 104; Hoeffner v. Grand Lodge, 41 Mo.

<p>1. PLEADING: Motion for■ Judgment: Nature. A motion by plaintiff for judgment on the answer operates as a demurrer and admits the truth of all facts well pleaded.</p> <p>2. FRATERNAL BENEFICIARY ASSOCIATIONS: By-Laws: Suicide Clause: Illinois Rule: Missouri Rule. In Illinois, under the decisions of its courts, an agreement' by a member of a / mutual benefit society to comply with future by-laws authorizes a future by-law reducing .or destroying benefits in case of death from suicide; but the rule is otherwise in Missouri, agreements of this character being interpreted to intend no more than that the member shall comply with and be governed by such by-laws as are passed in aid of the insurance or touching the conduct of the social features of the society.</p> <p>3. CONTRACTS: Laws Governing. When a contract is both made and to be performed in the same state or country, the law thereof enters into it as a factor and controls its execution, validity, interpretation and legal- effect, in the absence of provision to the. contrary; and the law of the place of performance of a contract controls in interpreting it and determining its legal effect, regardless of where it is made, but when nothing to the contrary appears, the law conclúsively presumes that a contract is- to be performed in the jurisdiction where it is made. . .</p> <p>4. -: -. Where a contract provides that the law of some other country than the one where it is to be performed shall control in the matter of its performance, such law will 'prevail, unless the provision is a mere sham to avoid usury or something of-that character; and where the parties contemplate, at the time the contract is made, that it is to be partly performed in one state and partly in another, the law ' of each place of partial performance governs such part of the performance as is to be had there.</p> <p>■5. FRATERNAL BENEFICIARY ASSOCIATIONS: Suicide Clause: Laws Governing Interpretation: Facts Stated. .A member of a fraternal beneficiary association, organized under the laws of Illinois but authorized to transact business in this state, in " his application for a life insurance policy agreed that his policy should be subject to all by-laws of the association then in force or which might thereafter be passed. Subsequent to the issuance of the policy, but before insured’s death, a by-law was passed reducing the amount to be paid under the policy in case death resulted from suicide. The contract of insurance was made in Illinois, where insured resided at alí times during the life of the policy, and the contract was to be and actually was performed there until the cause of action accrued. Insured committed suicide, and his widow, who was the beneficiary, brought suit in this state, although she was a resident of Illinois. Reid, that the validity and legal effect of the bylaws are to be determined in accordance with the laws of Illinois.</p>

<p>1. CERTIORARI: Reaches Record Only: Appellate Practice: Presumption. The common law writ of certiorari, which prevails in Missouri, brings up for review only matters of record, and where the record is sufficient on its face the presumption is, that the judgment is sustained by competent proof.</p> <p>2. APPELLATE PRACTICE: Bill of Exceptions: Duty of Appellant. The duty of filing a hill, of exceptions and of exhibiting, on appeal, the record showing such filing rests upon the appellant.</p> <p>3. -: Diminution of Record: Certiorari. Where, on appeal, the record appears to he insufficient, the appellant may suggest a diminution of the record and cause a writ of certiorari to issue, or he may stipulate with his adversary concerning corrections to he made or omissions to be supplied.</p> <p>4. -: -: -: Scope of Review: Facts Stated. A record filed in the appellate court did not disclose the filing of a hill of exceptions, and the case was passed to allow appellant to apply to the trial court for an order nunc pro tunc, showing such filing. The trial court made the order, respondent appealing therefrom. Both parties thereafter appeared in the appellate court and suggested a diminution of the record, and a writ of certiorari was ordered issued, hut the parties in open court waived its issue and filed, as a return to that order, a printed abstract prepared by respondent on his appeal from the nunc pro /tunc order, containing the record entries pertaining thereto, and the evidence adduced at the hearing therefor, as preserved in a bill of exceptions, and thereupon respondent dismissed his appeal from that order. Held, that, inasmuch as appellant adopted the abstract to supply an omission in the record, without which its bill of exceptions could not be considered, it took said abstract cum onere, and that, inasmuch as, upon the agreement to file the abstract as a return to the order for certiorari being made, respondent dismissed his appeal from the nunc pro tunc order, appellant was estopped from insisting. that the sufficiency of said order be determined on the face of the record, according to the technical rule in certiorari, and, therefore, that the court would review the nunc pro tunc order on its merits, as disclosed by the evidence set forth in said abstract.</p> <p>5. -: Appeal from Nunc Pro Tunc Order: Scope of Review. One appealing from an order making a correction in the record nunc pro tunc is entitled to have the entire proceedings therefor reviewed.</p> <p>6. NUNC PRO TUNC ORDER: Necessity of Documentary Evidence. A nunc pro tunc order may not be made at a subsequent term of court upon evidence other than that furnished by the papers and files in the cause or something, of record or in the minute book or judge’s docket, as a basis by which to amend or supply the defective record.</p> <p>7. BILLS OF EXCEPTIONS: Filing: Nunc Pro Tunc Order: Sufficiency of Evidence. A bill of exceptions was sent to the circuit clerk by express, in time to have reached him several days before the expiration _ of the time for filing it, and was later found unsealed in his office, but bearing no file marks. A paper, reciting that the bill was filed within the time fixed and bearing the file mark and signature of the clerk, was sent to appellant’s counsel by the clerk; but this paper was not found among the files of the case nor in the clerk’s office, though a carbon copy of it bearing no file mark was. Held, that, under these facts, the court had no authority to enter an order at a subsequent term, nunc pro tunc, showing the filing of the bill of exceptions within the time fixed, although the paper in the possession of appellant’s counsel would have furnished a sufficient basis for the order, had it been found among the files of the cause or in the clerk’s office.</p> <p>8. -; -; -: File Mark. The file mark of a circuit clerk indorsed on a bill of exceptions is a sufficient note or memorandum upon which to- base a nunc pro tunc order showing its filing, where the bill is found in the clerk’s office and contains an order, over the signature of the judge, for the clerk to file it.</p>

<p>1. MUNICIPAL CORPORATIONS: Prosecution for Violating Ordinance: Civil Action. A prosecution for violating an ordi- ■ nance is a civil action and governed by the rules applicable to such actions.</p> <p>2. APPELLATE PRACTICE: Conclusiveness of Verdict. The weight of the evidence and the credibility of the witnesses are matters for determination by the jury and trial judge.</p>

— Hon. Henry G. Riley, Judge. (1) There was not sufficient evidence upon which to find a verdict for plaintiff and the judgment was for the wrong party. Bohle v. Merc. Co., 114 Mo. App. 439; Morris v. Kansas City, 117 Mo. App. 298; Schuette v. Transit Co., 108 Mo. App. 186; Northup v. Diggs, 115 Mo. App. 91; Gould v. Johnson, 207 Mo. 619; Wein-stein v. Railroad, 128 Mo. App. 224; James v. Oliver, 129 Mo. App. 85. (2) The verdict under the evidence was too large.

<p>1. BILL OF INTERPLEADER: Life Insurance: Adverse Claimants for Fund: Trial Practice. Where there are two claimants for a fund, which, by mutual consent, is deposited with a bailee to await determination by the court as to who is the owner, a suit by one of such claimants against the other claimant and the bailee, to determine the ownership, is really a case of interpleader and is distinctly one that should be tried as in equity.</p> <p>2. EQUITY: Referring Issues to Jury. In an equity case, it is within the power of the court to take the opinion of a jury on any issue of fact, but the court is not bound thereby.</p> <p>3. BILL OF INTERPLEADER: Failure to Establish Case: Right to Take Nonsuit. Where a fund was, by consent of the parties, deposited with a third party, to await determination by the court as to who was its owner, and one of the claimants brought suit for it against the other claimant and the bailee, and, at the trial, plaintiff failed to establish his right to the fund, the court should not have allowed him to take an involqntary nonsuit, upon instructions being given which were preclusive of a recovery by him, but should have dismissed his suit and disposed of the fund, which was before the court, as in inter-pleader.</p> <p>4. LIFE INSURANCE: Assignment of Policy: Mental Incapacity: Undue Influence: Sufficiency of Evidence. In an action to determine the ownership of the proceeds of a life insurance policy, where defendant, who was a son of insured, alleged title under and by virtue of an assignment of the policy to him by insured, and plaintiff’s reply averred the assignment, if made, was procured by undue influence on the part of defendant, and that insured did not possess sufficient mental capacity to execute it, held, the evidence was not sufficient to warrant a finding either that defendant exercised undue influence or that 'insured did not have sufficient mental capacity to execute the assignment.</p> <p>5. WITNESSES: Disqualification: Party to Contract Dead. On an issue as to the validity of an assignment of a life insurance policy, a notary public, who took the acknowledgment of the assignor, since deceased, to the assignment, witnessed it, and saw its delivery to the assignee, but who was the agent of neither, was not disqualified as a witness by section 6354, Revised Statutes 1909, providing that no person shall be disqualified to testify by reason of interest, as a party or otherwise, except that a party to the transaction shall not testify where the other party is dead.</p> <p>6. ” LIFE INSURANCE: Validity of Assignment: Failure to Secure Consent of Insurer: Waiver. Where an insurance company paid over the proceeds of a policy which had been assigned and claimed no benefit under a provision of the policy requiring its assent to the validity of an assignment, it thereby waived the failure to secure its assent to the assignment, and such assignment was not, for that reason, invalid as to another claimant of the fund.</p> <p>7. EVIDENCE: Exclusion: Indefinite Question. An objection to a question propounded to a witness, “What did you hear your father talk about when you met?” was properly sustained, for the reason it was indefinite in locating the time and place of the conversation.</p> <p>8. -: - — : Cumulative Evidence. It is not error to refuse to require a witness to answer further questions concerning a subject fully gone over.</p> <p>9. BILL OF INTERPLEADER: Distribution of Fund: Interest. In an action in the nature of interpleader to determine the ownership of the proceeds of a policy, which came into plaintiff’s hands as administrator, pending suit, plaintiff having taken a nonsuit, the court properly rendered judgment that defendant was entitled to the fund and interest from the date plaintiff received it.</p>

<p>1. ESTOPPEL: Pleading. Matters in estoppel must be pleaded.</p> <p>2. PRINCIPAL AND AGENT: Ratification of Agent’s Acts: Pleading: New Matter Pleaded in Reply: Anticipating Defense. Where defendant in its answer pleaded a release to the cause of action sued upon, executed by plaintiff’s agent, and plaintiff’s reply was a denial of the authority of the agent to execute the release, defendant had a right, without further pleading, to give in evidence any fact, either of prior authority or subsequent ratification, to show that the execution of the "release was the act of plaintiff and was binding upon him, since, under sections 1811 and 1830, Revised Statutes 1909, a cause is at issue when a reply is filed and no subsequent pleading is tolerated, and defendant was not bound to anticipate in its answer the defense of non est faoturn set out in the reply.</p> <p>3. APPELLATE PRACTICE: Theory at Trial: Shifting Position: Pleading. Where, to an answer setting up a release, plaintiff • replied that the release was executed by his attorney without authority, and the case was tried on the theory that defendant might avail itself- of the defense of ratification without further pleadings, it was not open to plaintiff to object, on appeal, that evidence of ratification was not admissible, under the issues.</p> <p>4. -: Conclusiveness of Finding. A finding of fact by the trial court sitting as a jury which is supported by ample evidence is conclusive on appeal.</p> <p>5. PRINCIPAL AND AGENT: Unauthorized Act of Agent: Ratification: Facts Stated. Plaintiff executed a written power of attorney, whereby he employed an attorney to assert and collect a claim against defendant arising out of personal injuries sustained by his wife. On the 14th day of June, defendant and the attorney compromised the claim, and on the same day the attorney remitted to plaintiff the proceeds of the settlement, after deducting his stipulated fee. Two days later plaintiff cashed the check remitted by the attorney and commingled its proceeds with his own funds and kept them so commingled, without protest or notice'of disaffirmance to defendant, until the 8th day of the following September, when he tendered to defendant the amount that had been remitted to him and commenced suit on his cause of action. ffeW, that a finding by the trial court, sitting as a jury, that plaintiff did not disavow the act of his agent within a reasonable time and hence that he had ratified the same was supported by the evidence and ' could not be successfully assailed on appeal.</p>

Appeal' from St. Louis County Circuit Court,. — Hon. G. A. Wurdeman, Judge. (1) Verdicts are not required to be in any particular form, but they must be certain, positive and free from ambiguity; show what the jury intended and be responsive to the issues. Neither should a general verdict contain special findings. Kenny v. Railroad, 79 Mo. App. 204; Cattail v. Pub. Co., 15 Mo. App. 587; Wiruth v. Lashmett, 85 Neb. 286; Stone v. Taylor, 72 Mo.

Louis City Circuit Court —Hon. William- M. Kinsey, Judge. (1) The review of a suit for divorce on appeal is governed by the rules applicable to equity cases, and extends to the law and the facts. While the appellate court gives due weight to the findings of fact in the trial court, it' will examine the evidence for itself and determine whether it justifies the decree of the court below. Green v. Green, 22 Mo. App. 494; Griesedieck v. Griesedieck, 56 Mo.

<p>1. JUSTICES’ COURTS: Payment as Defense: Pleading. On appeal to the circuit court from a justice’s court, payment may be shown as a defense, without being pleaded, although payment is an affirmative defense which, in cases originating in the circuit court, must he pleaded; but payment, within such rule, does not 'include the purchase by defendant of an outstanding claim against plaintiff.</p> <p>2. -: Counterclaims: Assigned Account: Pleading. An account against one who instituted an action in a justice’s court, purchased by the defendant, can he made available as a defense only by way of counterclaim, under section 7446, Revised Statutes 1909, and where such an account is not pleaded in the justice’s court, it cannot he given in evidence as a defense in the circuit court.</p>

<p>1. MASTER AND SERVANT: Injury to Servant: Pleading: Suf- ■ ficiency of Petition. In an action for injuries to a servant, ■ employed in a shoe factory, from defects in a machine on which he was working, the petition held, -as against objection first made after verdict, to sustain the judgment, although it could have been made more definite in its description of the defective condition of the machine and in its allegations concerning the injury.</p> <p>2. -: -: Sufficiency of Evidence. In an action for injuries to a servant, employed in a shoe factory, from defects in a machine on which he was working, evidence held sufficient to sustain a verdict for plaintiff.</p> <p>3. APPELLATE PRACTICE: Conclusiveness of Verdict. A verdict approved by the trial court, so far as concerns the weight of the evidence and the credibility of the witnesses, will not be disturbed on appeal.</p> <p>4. MASTER AND SERVANT: Injury to Servant: Appliances and Place to Work: Duty of Master. An employer is not under the unqualified duty to keep the machines in his factory in a reasonably safe condition for employees, but is only bound to use ordinary care in furnishing a reasonably safe place in which and reasonably safe tools with which to work.</p> <p>5. INSTRUCTIONS: Must be Considered as a Whole. In .determining a case, the jury, as well as the appellate court, are to consider all the instructions.</p> <p>6. MASTER AND SERVANT: Injury to Servant: Appliances and Place to Work: Duty of Master: Instructions. In an action by a servant for personal injuries, alleged to have been negligently inflicted, a statement in an instruction that it was the master’s duty to keep the machines in his factory in a reasonably safe condition for his employees was not reversible error, although the master was only bound to use ordinary care in furnishing a reasonably safe place in which and reasonable safe tools with which to work, where the same instruction particularly and distinctly informed the jury of the duty of an employer to furnish a safe place to work and that he is liable if he discharges that duty negligently or without the use of ordinary care, and the terms “ordinary care” and “negligence” were distinctly defined in other instructions.</p>

— Hon. Nat M. Shelton, Judge. The evidence does not disclose any acts or conduct that amount to indignities as contemplated by the statute or as defined in our law. Such indignities as will authorize the granting of a divorce must amount to a species of mental cruelty. Goodman v. Goodman, 80 Mo. App. 281; Holschbach v. Holschbach, 134 Mo. App. 247.

Louis City Circuit Court. — Hon. Hugh Muench, Judge. . An instruction singling out the evidence of plaintiff and calling the jury’s attention to his interest in the result of the suit is a comment on the evidence and will not he allowed in a civil action. Stetzler v. Railroad, 210 Mo. 704; Huff v. Railroad, 213 Mo. 495; State v. Dower, 134 Mo. App. 352.

Louis City Circuit Court. — Hon. Matt Q. Reynolds, Judge. (1) Where one honestly comes into the possession of a trade secret and does not violate any contract or confidential relation, he may use same as he sees fit. Stewart v. Hook. 118 Ga. 445; Chadwick v. Coveil, 151 Mass. 190; Watkins v. Landon, 52 Minn. 389.

— Eon. James D. Barnett, Judge. (1) Instruction No. 1 is erroneous and prejudicial to appellant in that it assumes, that appellant was guilty of negligence, and is therefore reversible error. Stone v. Hunt, 94 Mo. 475; Dodd v. Gusefi, 100 Mo. App. 311; Dulaney v. Refining Co., 42 Mo. App. 659..

<p>1. DEATH: Presumption: Seven Years’Absence: Statute. Under section 6340, Revised Statutes 1909, a presumption of death arises only where it is shown that the absent person was a resident of this state, that he departed from this state and thereafter continued absent from this state for seven successive years, and there is no showing that he was alive within that time.</p> <p>2. -: -: -: Common Law. A statement made by a person when leaving home “that he was going west and did not intend to return home” would, at common law, be an explained absence — an absence for adequate cause.</p> <p>3. -: -: -: “Going West.” The word “west” is a very indefinite word, in common usage; so that, where one, at the time he left home, stated he was “going west,” a presumption did not necessarily arise that he meant to convey the idea he was going outside of this state.</p> <p>4. LIFE INSURANCE; Death: Presumption: Seven Years’ Absence: Statute: Sufficiency of Evidence. In an action on a life insurance policy, where plaintiff, for proof of death, relied on the presumption of death, under section 6340, Revised Statutes 1909, proof that insured, who was plaintiff’s husband and had lived with her in St. Louis, left her more than seven years before the institution of the suit, and at the time he left stated he was “going west,” and that, after diligent search, his whereabouts had not been discovered, which proof did not show that, in fact, he ever did leave this state nor that ne was ever seen dead or alive outside of this state, was insufficient to raise a presumption of death from absence, under said statute.</p>

— Hon. James D. Barnett, Judge. (1) A married woman may invoke all exemption and homestead laws now in force for the purpose of protection of personal and real property owned by the head of the family, except where the husband has claimed such exemption and homestead rights for the protection of Ms own property. Sec. 4335, R. S. 1899; R. S. 1909, Sec. 8304; Bank of Liberal v. Redlinger, 95 Mo. App. 275; White v. Smith, 104 Mo. App. 199; Sharp v. Stewart, 185 Mo. 518.

<p>1. APPELLATE PRACTICE: Questions Reviewable: Questions Raised of Court's Own Motion. Since the decisions of appellate courts not only dispose of the case in hand but are important in determining other like cases, such courts have the right to notice errors appearing on the face of the record, although no point thereon is made by counsel, in order that like errors may not occur in other cases.</p> <p>2. EXECUTORS AND ADMINISTRATORS: Pleading: Petition for Distribution: Sufficiency of Petition. A petition by a legatee, to whom testator had made an advancement which the will provided should be deducted from petitioner’s share, ask- . ing merely that, when distribution is ordered, petitioner's share shall be set off without charging him with the amount of the advancement, on the ground that he had paid the advancement before testator’s death, but which fails to allege ' either that there were any funds in the estate to distribute or that the estate is in condition for distribution, was premature and unsustainable either as a petition for distribution or as a proceeding in equity.</p> <p>3. -: Distribution: Payment of Advancement: Powers of Probate Court. On a petition for the distribution of an estate, the probate court has power to determine whether an advancement required by the will to be charged against a legatee had been paid before testator’s death and is therefore not chargeable against the legatee as a part of his share of the estate.</p> <p>4. PROBATE COURTS: Jurisdiction: Equity Jurisdiction: Jurisdiction of Circuit Courts, on Appeal. The probate court has no equity jurisdiction, nor can the circuit court exercise equity jurisdiction on an appeal from the probate court.</p>

<p>1. WILLS: Construction: Jurisdiction of Circuit Courts. Circuit courts, as courts of equity, have jurisdiction to construe doubtful provisions of a will, on application by a trustee named in it, by an executor or administrator acting under it, or by any party interested.</p> <p>2. ;-: -: Rules for Construction. The rule for con- ■ struing wills, enjoined by section 583, Revised Statutes 1909, •' that “all courts and others concerned in the execution of last wills shall have due regard to the directions of the will and the true intent and meaning of the testator, in all matters brought before them” has always been the rule of decision.</p> <p>3. -: -: -. In construing a will, the testator is presumed to have used particular words according to their common and primary acceptation, unless it appears from the context that he used them in a different sense.</p> <p>4. -: --: -: “Children.” The legal import of the word “children,” used in a will designating beneficiaries, accords with its proper signification, and the term is never extended to include grandchildren or any person other than immediate descendents in the first degree of the person named as ancestor, in the absence of something showing a contrary intent.</p> <p>5. -: Personal Property: Rules Governing: Descent and Distribution. Estates in personal property, so far as the nature of the property permits, are governed by the same rules as similar estates in real property.</p> <p>6. -: Equitable Estates: Rules Governing: Descent and Distribution. Equitable estates are governed by the same rules of descent as govern the duration of legal estates.</p> <p>7. TRUSTS: Active Trusts: Wills: Construction. Testator, after reciting that he had four children, devised all of his property in fee to two children as trustees, with power to hold and manage the property, invest the personalty, lease the realty, and collect the income of both, and, with the consent of the rest of testator’s children, improve the property, and semiannually account for and divide between themselves and testator’s other children the net income. The will provided that the trust should cease on the death of the last surviving child and that the estate should then be divided among the descendants of the four children per stirpes, and further recited that it was testator’s wish and purpose to have his estate kept together as long as the trust continued, and that the trustees, with the consent of testator’s other children then living, might sell any part of the real estate, but the proceeds of such sale should be held and managed by the trustees. Held, that the trust created by the will was an active trust.</p> <p>8. WILLS: Construction: Trusts: Cross-Executory Limitations: Nature of Estate Conveyed. Testator, after reciting that he had four children, devised all of his property in fee to two children as trustees, with power to hold and manage the property, invest the personalty, lease the realty, and collect the ■ income of both, and, with the consent of the rest of testator’s children, improve, the property, and sémi-annually account for and divide between themselves and testator’s other children the net income. The will provided that the trust should cease on the death of last surviving child, and that the estate should then be divided among the descendants of the four children per stirpes, and further recited that it was testator’s wish and purpose to have his estate kept together as long as the trust continued, and that the trustees, with the consent of testator’s other children then living, might sell any part of the real estate, but the proceeds of such sale should be held and managed by the trustees. Held, that the interest of the four children in the body of the estate was an equitable one; that the fee to the realty and the absolute ownership of the body of the personalty rested in the trustees, and that the four children had a vested interest as tenants in common in the net income derived from the property, the interest of each being one-fourth. Held, further, that the species of estate each of the four children took was as “tenants per auter vie” at common law, and if any one of such children should die before the other three, his estate would continue and vest in his personal representatives, and the trust estate would so continue until the death of all four children; hence the will presented no case for the application of the doctrine of cross executory limitations. Held, further, that the interest of such tenants was assignable and could be reached by their creditors, and that if one of them conveyed it away, his grantee would hold it, unaffected by his death.</p> <p>9. -: -: Trusts: Termination. A clause in a will .which creates a trust, providing that the trust shall terminate on the death of the beneficiaries, has nothing to do with the character of the estate, but merely fixes the duration of the trust.</p> <p>10. -: -: “Descendants.” The term “descendants,” as used in a will, includes all who proceed from the body of the person named, as children, grandchildren and great grandchildren.</p> <p>11. REMAINDERS: Contingent: Wills: Construction. A provision in a will creating a trust that, on the decease of testator’s last surviving child, the estate shall be divided among the children’s descendants creates a contingent remainder.</p> <p>12. WILLS: Construction: Cross Executory Limitations. The rules as to cross limitations is not a favorite of the law, and in construing a will, courts will not construe such a limitation into it, in the absence of a clearly expressed intention or direction of the testator.</p> <p>13. -: - — ; Appellate Practice. In an action to construe a will, where one of the defendants did not appeal from an adverse finding, hut the plaintiffs appealed and presented the entire will to the appellate court for construction, the latter court will construe.it irrespective of the action of the trial court, and will determine the rights of such defendant, under the will.</p> <p>14. APPELLATE PRACTICE: Trial Practice: Agreement of Parties not Conclusive, When. No agreement of parties as to a matter of law can conclude the courts.</p> <p>15. DOWER: Child’s Part: Absolute Right. The right of the. widow of one who left children, to take a_ child’s part, under section 349, Revised Statutes 1909, is so absolute that she takes it without election, and she cannot he divested of it by any fraudulent contrivance of her husband.</p> <p>16. -: —:-: -. A cestui que trust, who had a vested interest in the net income of a trust fund created by will, descendible upon his death, died, leaving surviving him a widow and a child. In an action to construe the will, the court found that the widow had no interest in the trust property, although she claimed her right to take a child’s part, under section 349, Revised Statutes 1909. Held, that the finding was erroneous, on the facts presented.</p> <p>17. WILLS: Construction: Scope of Determination: Trusts. In. construing a will creating an indeterminate trust, with provision for distribution among the descendants of testator’s children on the death of his last surviving child, it was error to find that, at the termination of the trust, the daughter of a deceased child would be shized of a particular interest; a direction as to what shall be done when the time for ultimate distribution arrives being improper.</p>

<p>1. BUILDING RESTRICTIONS: Validity. While the law favors the free use of real estate, proper building restrictions on the use of property of such a character as the law permits to be attached to land, so as to restrict the use of one parcél thereof in favor of another, are valid and enforceable on equitable grounds.</p> <p>2. -: -: Perpetuities. A deed to a lot, which recognizes that the grantor has laid out a block into lots, subject to building restrictions, and which stipulates that after twenty-five years the owners of the greater part of the frontage on the street may modify or repeal, the restrictions, and which contains no provision preventing the owners of all the lots at any time, by consent of all, from removing the restrictions, is not objectionable as creating a perpetuity, since a perpetuity is created only when- there are no persons .in being who can convey an absolute fee in possession, discharged of a future use or estate.</p> <p>3. -: -: Run with Land. A grantor of land may restrict its use in a particular way, provided such restriction is not against public policy; and a covenant of this character runs with the land, when either the liability to perform it or the right to enforce it passes to the assignee or vendee of the land if he has notice of it.</p> <p>4. -: -: Uniform Plan. The owner of a city block may divide the same into lots and impose on them building restrictions in conformity to a plan of improvement adapted for dwelling houses, though the property on the opposite sides of the streets is not subject to such restrictions, provided the restrictions are in conformity to a general uniform plan of improvement extending over the entire tract.</p> <p>5. -: -: Failure .of Plan: Facts Stated. The owner of a city block divided it into lots and imposed on them building restrictions in conformity to a uniform plan of improvement adapted for dwelling houses. The block, except two or three vacant lots, was subsequently improved in conformity to the general plan. No attempt had been made by the owner or the purchasers of the lots, other than by the purchaser of a vacant lot, to change or abandon the general plan. Held, not to show a failure of the restrictions so as to render them inoperative.</p> <p>6. -: — : Residence Property: Becoming Suitable for Business Purposes: Effect. The mere fact that lots, subject to building" restrictions created by covenants in deeds by which they were limited to use for residence purposes only, become more valuable or suitable for business than for residence purposes is not in itself any ground to justify a court of equity in overturning and annulling such covenants.</p> <p>7. -: -: -: Street Railway Tracks. The mere presence of street railway tracks in a street will not turn it from a residence into a business thoroughfare.</p> <p>8. -: Change of Restrictions. It is beyond the power of the grantors of a subdivision or the owners of lots therein to change the building restrictions on lots, without the consent of all who have purchased under covenants providing for such restrictions.</p> <p>9. -: Violation: Carrying on Business. The erection of billboards by an advertising company, for a consideration paid to the owner, followed by the sale or letting out of space on the billboards for hire, is carrying on business on the land and using it for business purposes in violation of a building restriction prohibiting the use of the land for business.</p> <p>10. -: Knowledge of Purchaser: Recitals in Deed. One who accepts a deed containing covenants restricting the use of the land in conformity to a general plan of improvement imposed on all the lots of a subdivision by the original proprietor has actual knowledge of such restrictions.</p> <p>11. EVIDENCE: Value. The money or commercial value of a thing is not always a test of its worth.</p> <p>12. BUILDING RESTRICTIONS: Validity. That building restrictions are hurtful to business and restrict the business area of the city will not prevent their enforcement.</p> <p>13. APPELLATE PRACTICE: Equity Case: Modification of Decree. • The appellate court will not reverse a decision in an equity case merely because it is too broad, but may either modify the decree or remand the case to the lower court with directions to do so.</p>

<p>Habeas Corpus.</p>

— Hon. Henry C. Riley, Judge. (1) Where a* note is accepted in extinguishment of an open account the action should be brought upon the note, and no action lies-upon the open account. Rawlins v. Rawlins, 102 Mo. 563; Curtis y. Browne, 63 Mo. App. 431; Mohney v. Reed, 40 Mo. App. 99; Steamboat v. Lnmm, 9 Mo. 64; Steamboat v. Kings-land, 9 Mo. 67; Steamboat v. Hammond, 9 Mo. 60; 1 Cyc., pp. 336, 337 (d).

Louis City Circuit Court. — Hon. George H. Shields, Judge. The court erred in giving plaintiff’s instruction number 8, directing the. jury, in awarding damages, to consider the physical condition and earning capacity of the deceased. Young v. Railroad, 227 Mo. 307; Casey v. Railroad, 205 Mo. 721; Childress v. Railroad, 141 Mo. App. 667; Potter v. Railroad, 136 Mo.

<p>1. DEATH: .Presumption from Absence: Pleading: Fraternal Beneficiary Associations. In an action on a certificate issued by a fraternal beneficiary association, where tbe presumption of death from absence was relied upon, the time of insured’s death was not made issuable merely because it was alleged in the petition, such allegation being surplusage; and it was permissible to show the disappearance of insured, as one of the facts going to establish the presumption that he died, under the allegation of the ultimate fact of his death.</p> <p>2. -: -: Sufficiency of Evidence: Fraternal Beneficiary Associations. In an action on a certificate issued by a fraternal beneficiary association, evidence held sufficient to meet the requirements of the rule that where there is an unexplained absence for seven years without tidings to those likely to have heard from such person, if living, and there does not appear to have been any probable motive for such absence, and unavailing search has been made, a presumption of continued life ceases.</p> <p>3. -; -; -; -.in an action on a certificate issued by a fraternal beneficiary association, evidence held to show a sufficient search for the missing person to support the presumption of death, from absence.</p> <p>4. FRATERNAL BENEFICIARY ASSOCIATIONS: Limitation: Waiver of Policy Provision: Pleading: Evidence. In an action on a certificate issued by a fraternal beneficiary association, proof of waiver of the twelve month limitation, within which the policy required action to be brought, was permissible without the waiver having been specially pleaded; such proof being permissible under the allegation of full performance of the conditions.</p> <p>5. -: -: -: Facts Stated. Where the general attorney of a fraternal beneficiary association, knowing that plaintiff, a beneficiary, depended on showing the death of insured by evidence of his absence for seven years, and that plaintiff’s time allowed by the policy for bringing suit was passing, in correspondence with plaintiff insisted repeatedly upon more information as to the disappearance of and search for insured, and postponed final decision from time to time up to and beyond the expiration - of the time limited by the policy, and then placed the refusal to pay the claim on the ground that the association was not satisfied that insured was dead, his letters indicating to a reasonable mind a desire that plaintiff postpone bringing suit until the association had completed its investigations, a finding of waiver of the limitation was justified.</p> <p>6. -: Amount of Recovery: Defenses: Pleading: Burden of Proof. In an action on a certificate issued by a fraternal beneficiary association, by which it agreed to pay a stipulated sum to the beneficiary upon the death of insured, the burden of pleading and proving conditions which would delay or diminish the beneficiary’s recovery rests upon the association, and, in the absence of such pleading and proof, the beneficiary’s absolute right to the stipulated amount will be assumed.</p> <p>7. -: Presumption of Death from Absence: Amount of Recovery: Interest. When the contingency of death of one whose life is insured by a fraternal beneficiary association occurs, the obligation of the association becomes absolute and 'the sum presently due, and, by virtue of section 7179, Revised Statutes 1909, allowing interest on written contracts, the beneficiary becomes entitled to interest after the amount becomes due; and where the proof of death depends on absence for seven years, the interest runs from the expiration of that time.</p>

Louis City Circuit Court. — Hón. James E.'Withrow, Judge. The defendant company was not a connecting carrier, and accordingly the judgment of the court should have been for the defendant. Railroad v. Young, 25 Neb. 651; Roach v. Railroad, 1 Manitoba 158; Cooper v. Railroad, 27 VVis. 81; Railroad v. Scroggin and Brown, 90 S. W. 52.1 (Texas); 6 Am. and Eng. Ency. of Law, 604-605; Hutchinson on Carriers, sec. 247.

<p>Appeal from Lewis Circuit Court. — Hon.- Charles D. Sleivart, Judge.</p>

<p>Appeal from Scotland Circnit Court. — Hon. Charles D. Steivart, Judge.</p>

— Hon. Henry G. Riley, Judge. (1) Where claim is disputed and debtor tenders a part to the creditor in full satisfaction, if the cred tor accepts the tender, he is bound by the terms; he cannot accept the tender and prescribe the terms. Deutman v. Kilpatrick, 46 Mo. App. 625; Mack v. Sclmeider, 51 Mo. App. 92; Lightfoot v. Heard & Co., 113 Mo. App. 612; Coal Co. v. St. Lonis, 145 Mo. 651. (2) A tender to the agent is a tender to the principal.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) There was not sufficient evidence to support the averments of the petition, and, therefore, defendant’s instruction No. 2 should have been given.

Louis City Circuit Court. — lion. George H. Williams, Judge, (1) Where a party sues on a contract, he may recover upon that, or may recover on a quantum, etc., in the action when it is fully executed as to a stipxx-lated price, etc. — the converse of this proposition when he sues on a quantum, etc., he cannot recover on a specific contract, when the same remains open.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) Tire bill of lading which was to shipper’s order and was negotiable according to its terms under said shipping directions, by delivery to the plaintiff bank, for a valuable consideration, properly endorsed, passed the title to said property to plaintiff herein. Midland Natl. Co. v. Railroad, 132 Mo. 492; American Z. L. & S. Co. v. Lead Wks., 102 Mo. App. 159; Webster v. Bear, 141 Mo. App. 531.

Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge. (1) An instruction regarding the measure of damages authorizing the jury to consider reduced earning power is proper under the general allegation in the petition that the injury was permanent. Bartley v. Trorlieht, 49 Mo. App. 214; Scholl v. Grayson, 147 Mo.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The petition stated no cause of action, the objection to the introduction of evidence, the demurrer to the evidence at the close of the whole case and the motion in arrest of judgment should have been sustained.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) This being a suit in conversion, the petition did not state facts sufficient to constitute a cause of action in this, that it failed to allege or show that, at the time of the alleged conversion, plaintiff had possession of, or the right of possession to, the stock. Bank v. Mill & Land Co., 152 Mo. 156; Golden v. Moore, 126 Mo. App. 522; Schwald v. Brunjes, 139 Mo. App. 516.

— Hon. J. D. Barnett, Judge. (1) The court erred in overruling’ defendant’s objection to the introduction of any evidence on the ground that the petition failed to state a cause of action. Cook v. Phtnam, 70 Mo. 668; Verdin v. St. Louis, 131 Mo. 157; Mallinckrodt v. Nemnich, 169 Mo. 388; Pier v. Heinrichshoffen, 52 Mo. 333; Scott v. Robards, 67 Mo. 289..

Louis County Circuit Court. — Son. G. A. Wurdemann, Judge. (1) The hoard of aldermen of the city of Sullivan had no power with reference to nuisances in the city and their abatement, except its legislative power, which it could only exercise by ordinance. R. S. 1899, secs. 5964 and 6164. Its power with reference to nuisances and their abatement was strictly a legislative power.

<p>1. NEW TRIAL: Appellate Practice: Review. An order granting a new trial without specifying the ground on which it is given will be sustained, if any ground in the motion justifies "it.</p> <p>2. -: Discretionary Grounds: Appellate Practice: Review. A motion for a new trial on the grounds that the verdict is against the evidence, that it is against the weight of the evidence and that it is the result of bias and prejudice on the part of the jury is addressed to the discretion of the trial court, and its decision thereon will not be disturbed on appeal, except in a clear case of abuse.</p> <p>3. -: -: -. In a case where the evidence was conflicting and the court sustained a motion setting aside a verdict for defendant and granted a new trial to plaintiff, without specifying the grounds of its action, held that, under the facts of the case, the trial court was within its rights in setting aside the verdict as against the weight of the evidence, that being one of the grounds specified in the motion for a new trial.</p> <p>4. JUSTICES’ COURTS: Pleading: Amendment in Circuit Court. Where plaintiffs filed a statement in a justice’s court, setting forth that defendant was indebted to them, under their partnership name, for two certain amounts for his share of constructing two ditches, it was proper, under sections 7585 and 7587, Revised Statutes 1909, to allow them to file an amended statement in the circuit court, on appeal, setting up plaintiffs’ co-partnership, giving their full names, and pleading defendant’s breach of a contract to pay a proportionate cost of constructing a ditch.</p>

— Hon. Henry C. Riley, Judge. (1) The law is most certainly clear that a person cannot close his eyes to danger and reap damages for injuries resulting from Ms failure to see and observe.

— Hon. James D. Barnett, Judge. (1) Plaintiff as the widow of William Schaper, Sr., deceased, is entitled to a child’s share in the estate of the said William Schaper, deceased. Sec. 349, R. S. 1909. This interest of the- widow in the deceased husband’s estate is precisely the same -as the interest of a child therein. Cox v. Gun, 3 Mo. App. 348. (2) Plaintiff is a parcener within the meaning of the term parcener as set out in section 337, Revised Statutes 1909.

Circuit Court. — Hon. James D. Barnett, Judge. By failing to except to the court’s action in rendering judgment taxing the costs against it, and by failing to preserve its exceptions to the action of the court in its bill of exceptions, the appellant waived all alleged errors of the trial court. Richardson v. Agricultural Co., 156 Mo. 407.

— Hon. James D. Barnett, Judge. (1) There is in this case no express contract creating the relation of landlord and tenant between the plaintiff and defendant, and no facts from which that relation could be implied; and unless the relation of landlord and tenant does exist between the parties, by express or implied contract, a suit for use and occupation cannot be maintained. See. 7886, R. S. 1909; Cohen v. Kyler, 27 Mo. 120; Sturges v. Botts, 24 Mo.

— Hon. Joseph J. Williams, Judge. (1) The court erred in refusing to give defendant’s- instruction in the nature of a demurrer to the testimony at the close of the evidence. 1 Thompson Commentaries on Negligence, sees. 2 and 3; McMahon v. Express Co., 132 Mo. 641.

— Hdn. James' D. Barnett, Judge: (1-) The mortgagor cannot be put in default for non-payment of interest on the mortgage debt while the holder of the mortgage debt is engaged in the prosecution of a suit seeking to obtain a decree for the absolute title to the mortgaged premises and to relieve' the mortgagor from the payment of the mortgage debt. Such conduct amounts to a waiver of default pending the litigation.

— Hon. Henry C. Riley, Judge. (1) This cause was certified and all papers transmitted by the justice to the circuit court of Pemiscot county upon the affidavit of respondent that the title to real estate was involved in the suit, and under the statutes' this cause, when so certified to the circuit court, was then controlled by the statute regulating the practice in circuit courts. R. S. 1909; secs. 7460, 7778; McLain v. Berkebile, 123 Mo. App. 647.

St. Louis City Circuit Court. — Hon. Geo. H. Williams, Judge. What constitutes a reasonable time in which to rescind is a question of fact for the jury and not a question of law for the court. Althoff v. Transit Co., 204 Mo. 166; Tower v. Pauly, 51 Mo. App. 83.

Louis City Court. — Hon. Daniel D. Fisher, Judge. The court erred in giving instruction No. 1 for the plaintiff for two reasons: first, that said instruction permitted the plaintiff to' recover, when the evidence disclosed that the legal title to the, property described in the petition was in the defendant at the time of the alleged conversion; and second, that said instruction provides an improper measure of the damages even were plaintiff entitled to recover.

<p>1. JUSTICES’ COURTS: Pleading: Filing Written Contract. A written instrument, filed in a justice’s court, which authorized the insertion of an advertisement, for which the advertiser agreed to pay a fixed sum, on it appearing, before a certain date, that sales to a given amount could be traced to the advertisement, was sufficient as the basis for the suit, under .section 7413, Revised Statutes 1909, without any statement or pleading being filed.</p> <p>2. APPELLATE PRACTICE: Presumptions in Support of Judgment. In the absence of a bill of exceptions, it will be assumed, on appeal, in support of a judgment for plaintiff, that sufficient evidence, outside of the recitals of the instrument filed as the basis of the suit in a justice’s court, was adduced to establish defendant’s liability under such instrument.</p>

— Hon. James D. Barnett, Judge.' (1) Our insistence is that the portions of section 1408, R. S. Mo. 1899 and of section 3 of the laws of Iowa merely designating the persons to whom benefit certificates may be made payable, are no part of the definition of a fraternal benefit society under either statute.