Volume 160 — Missouri Appeal Reports

— Hon. D. E. ■ Blair, Judge. (1) In general a release must either he under the seal of the relator or be supported by a sufficient consideration, otherwise in nudum pactum and void. 34 Cyc. 1048. (2) In this State it can be shown that a written instrument was not supported by a valuable consideration. Winter v. Railroad, 160 Mo. 181, R. S-1899, sec. 645'.

— Ho». Alfred Page, Judge. (1) Where a new contract is substituted for an old one they are not to be construed together. Oberbeck v. Club Co., 17 Mo. App. 310. (2.) Tbe plaintiff must declare and rely on tbe second contract, tbe first is gone. Munford v. Wilson, 15 Mo. 540; Sanitz v. King, 93 Mo. 513. (3) A mere proposition must, to constitue a valid agreement, be accepted in writing. G-reenbaum v. Adair, 60 Mo. 25.

— Hon. James T. Neville, Judge. (1) Tlie only partnership agreement alleged in plaintiff’s petition and npon which he seeks to recover in this action is void for its purpose contemplates the violation of the provisions-of the statutes of this State. Roselle v: Bank, 141 Mo. 36; Downing v. Ringer, 7 Mo. 585; Knapp v. Culbertson, 152 Mo. 147; Beck v. Seal, 48 Mo. App. 475; R. S. 18.99, sec.- 2119'; 30 Cyc. 356;-9 Cyc. 566.

— Hon. J. D. Perkins, Judge. (1) By virtue of the provisions of the lease in evidence the sub-lessee of defendant as to the substantial improvements contemplated, provided for, directed and procured became the representative, the agent, or alter ego of 'defendant and plaintiff became entitled to his lien upon the property (boiler etc.) repaired and improved. Westport Lbr. Co. v. Harris, 131 Mo. App. 94; Lbr. Co. v. Churchill, 114 Mo. App. . 578, 104 S. W. 478; Curtin Hdwe.

<p>1. ATTACHMENT: Appeal and Error: Appeal on Plea in Abatement. Under the plain provisions of section 2335, Revised Statutes 190.9, an appeal cannot be taken from the judgment on the plea in abatement in an attachment suit until after the cause has been tried on the merits, and it is immaterial whether the judgment on the plea in abatement be for plaintiff or defendant.</p> <p>2. APPEAL AND ERROR: Attachment: Plea in Abatement: Premature Appeal. In an appeal on the plea in abatement in an attachment suit it is necessary that the abstract of the record show that the cause was tried on the merits before the appeal on the plea in abatement was granted; otherwise, the appellate court cannot determine that it has jurisdiction of the appeal, for an appeal on the plea in abatement would be premature if taken before the' trial on the merits.</p> <p>3. -: Abstract Must Show Sufficient Record. The statutes and the rules of the appellate court require that thfe abstract of the record set forth so much of the record as is necessary to a full understanding of all the questions presented to the court.</p>

— Eon. D. E. Blair, Judge. (1) When not only the defect but the dangers incident to the use of the defective machinery are known to an experienced man and he continues to work therewith and is injured he cannot recover.

— Noto. D. E. Blair, . Judge. (1) The chattel mortgage and the notes in question were in writing and both were written at the same time by Mr. Ramsay, cashier of defendant' and Mr. Ramsay also admitted that the plaintiff signed the said note as surety.

— Son. J. D. Perkins, Judge. (1) To make a case of negligence, tlie evidence must show that the defect existed prior to the happening of the accident and that defendant either knew of its existence, or could have known bf its existence by the exercise of ordinary care and for a sufficient time before the happening of the accident to enable it to remedy same. Abbott v. Mining Co., 112 Mo. App. 550; Wojtylak v. Coal Co., 188 Mo. 260; Rowden v.. Daniel, 132 S. W. 23.

— Ho». Carr ' McNatt, Judge. (1) A partial failure of consideration is an affirmative defense, and in order to be available, it musí be pleaded. McCormick v. Crawford, 98 Mo. App. 3191; Skeperd v. Padgitt, 91 Mo. App. 473; Crensbaw v. Looker, 185 Mo. 387. (2) The matters pleaded in tbe first paragraph of tbe answer constitute a breach of warranty, and have to be pleaded as a counterclaim in order to be available. Chenshaw v. Looker, 185 Mo. 387; McCormick v. Crawford, 98 Mo.

<p>1. RAILROADS: Operating Trains: Injury to Servant: Passing Between Cars: Negligence: Contributory Negligence. Deceased was employed by defendant as a “freight digger.” He worked at night in separating freight in the cars and passing it out for proper reloading. On the night he was killed it appears that he was the last man who left the loading platform; he had sealed a car on one of the three switch tracks leading to the platforms, and started across to the office to give in his time. In doing so he attempted to pass between two cars on one of the switch tracks by stepping on the dead woods of the cars, or beams at the ends, this being a common practice of the workmen. One of these two cars was a bad order car, the draw bar being out. As deceased passed through, an engine of defendant came against the cars on this track and deceased was caught between tbe cars and killed. The evidence tended to show that the engine came in on this track before it had been ordered to do so and that deceased had no reason to believe that there was any danger -at the time he passed between the cars. There was also evidence of the failure to sound whistle or bell and of a failure to keep proper signal lights displayed, so as to prevent the switch engine from running against the car. yield, that the question of defendant’s negligence was for the jury and that deceased was not guilty of contributory negligence, as a matter of law.</p> <p>2. -: Contributory Negligence: Passing Between Cars: Where no Danger is Expected. Although it is held to be negligence per se for a person to attempt to cross between cars to which an engine is attached, or without looking to see if an engine was attached, at a place where the street was being obstructed, and where it was the duty of the company to move the cars, yet, it does not follow that an employee of a railroad company is guilty of contributory negligence in passing between cars when he has every reason to believe that he has ample time to get across before the engine would come in on the track and begin switching, and this is true even, though the employee might have passed around the car, for if he had no reason to believe that the way between the cars was unsafe, he would not be guilty of contributory negligence in selecting that way instead of the one around the car.</p> <p>3. -: Operating Trains: Penalty Statute: Failure to Display Signal Lights. An employee whose duty it was to assist in the handling and reloading of freight at a division point, was caught- and killed as he was passing between two freight cars on a switch track near the freight depot. An action was brought under section 5425, Revised St'atutes 1909, on the theory that he was killed through the negligence of the defendant in running or operating the engine or cars and one of the acts of negligence submitted to the jury was a failure to keep proper signal lights by night displayed at or near the switch so as to prevent the switch engine from being run on the switch track and against the cars until the work of loading had been completed and the cars ready for switching. The evidence on this question is examined and it appears that the movements of the engine were controlled by the presence or absence of these lights and served no other purpose; held, that this ground of negligence was properly submitted under the penalty statute.</p>

— No». G. H. Skinker, Judge. (1) It is apparent from the facts in this case that under no possible view point can the judgment rendered by.the trial court stand. The admitted facts show that Mr. Sidway's acceptance was altogether conditional and those conditions were set out in clear and unmistakable terms in his letters of January 3 and 8, 1908, as well as in each and every letter transmitting the drafts thereafter, to Mr. Lehnhard and the bank.

Jasper Circuit Court . — Eon. D. E. Blair, Judge. (1) The transcript of the. justice is evidence, when properly certified as was done in this case and as shown in the abstract of record and is a part of the record in this case, and is in evidence. R. S. 1909; sec. 6333, 7404. (2) These entries in this transcript come within the rule laid down in Brown v. Spierson, 8 Mo. 160; Carpenter v. Roth, 192 Mo. 669.

— Noto. David E. Blair, Judge. (1) The demurrer to the testimony was improperly sustained and the nonsuit should have been set aside and a new trial granted because the evidence showed that defendant was negligent in having made no effort to take the “twist” out of the cable, and the testimony shows that the cage was not equipped with guides or rails to guide it through the shaft and defendant was negligent in not so equipping the cage. Guffey v. Railroad, 53 Mo.

— Hon. Carr McNatt, Judge. (1) The contract declared upon was created hy correspondence, if created at all. Hence, it must appear to sustain the action that the very terms offered hy the one party were accepted by the other. Union Service Co. v. Drug Co., 48 Mo. App. 336; Robinson v. Railroad, 75 Mo. 493; Strange v. Crowley, 91 Mo. 287; 1 Page on Contracts, 24; Cangas v. Mfg. Co., 37 Mo. App. 297; Batavia v. Railroad, 126 Mo. App. 13.

Jasper Circuit Court. — Eon. David E. Blair, Judge. (1) A decree of a circuit court is self-enforcing and title is passed thereby without any act to he done on the part of the defendant. R. S. 1909, secs. 2109, 2110, 2111; Macklin v. Allenberg, 100 Mo. 341; Henderson v. Dickey, 50 Mo. 165. (2) Every court has the exclusive control of its process and no other court has a right to interfere with or control it.

— Hon. David E. Blair, Judge. (1) The individual members of the Missouri Standard Mining Company, could not assume the debts of the Oakwood Mining Company, but same would have to be done by a majority of the persons duly assembled as a board of directors. R. S. 1909, sec. 2992; Hutchinson v. Green, 91 Mo. 367; K. C. Hay Co. v. Devol, 72 Fed. 721; Calumet Paper Co. v. Haskell, 144 ' Mo. 331.

Jasper Circuit Court. — Hon. David E. Blair, Judge. (1) The secretary of plaintiff building and loan association, incorporated under the laws of Missouri, cannot bind the corporation to a purchase of real estate by defendants under a private agreement between one of the defendants and such secretary that such real estate should be held by defendant for the corporation and that defendants should not be held liable on a promissory note executed by them to the corporation for…

— No». Joseph D. Perkins, Judge. (1) Tbe city may levy three taxes under its charter powers; first, a tax on property; second, a vehicle tax for the use of streets; third, a tax on the business, or occupation. St. Louis v. Weitzel, 130' Mo. 619; Harder Co. v. Chicago, 85 N. E. 245.

— Ron. Joseph D. Perkins, Judge. t (1) The city may levy three taxes under its charter powers: first, a tax on property; second, a vehicle tax for the use of the streets; third, a tax on the business or occupation. St. Louis v. Weitzel, 130 Mo. 619; Harder’s Oo. v. Chicago, 85 N. E. 245.

— Ro». W. N. Evans, Judge. (1) The land of Isaac Shipman, original patentee, descended subject to the payment of his debts and until the appointment of an administrator the Statute of limitations did not begin to run against his debts. Woerner’s Law of Administration, sec. 401; Ayers Admr. v. Donnell, Ext’r, 57 Mo. 398; Little v. Reid, 75 Mo. App. 398; Stanton v. Gibbons, 103 Mo. App. 267. (2) Defendant was obliged to furnish a good title,, a merchantable title to appellant.

L. B. Wood-side, Judge. (1) Under the testimony the plaintiff was entitled to recover. The deed was executed in 1885; the covenant was breached in 1907. Plaintiff suffered substantial damages and had a right of action therefor after the final decision of the court against his title. R. S. 1909, sec. 1888; Blondeau v. Sheridan, 81 Mo. 554; 8 Am. and Eng. Ency. of Law (2 Ed.), 91, 93.

<p>Appeal from Boone Circuit Court. — Hon. F. H. Harris, Judge.</p>

<p>1. PLEADING: Money Had and Received: Favor of Courts. Money had and received'is a form of action favored by the courts, and it will lie whenever one person has received money which, in justice, belongs to another and should be returned.</p> <p>2. -: -: When Maintainable: Breach of Contract: Evidence. An action for money had and received may be maintained instead of breach of contract, where the contract is executed and one party is left in possession of the other’s money. And it is proper in suitable cases to admit the contract in evidence.</p> <p>3. -: -: Rent: Cash and Share: Flood. A contract of renting for five years provided for cash rent per annum in advance, but contained a further provision that if the crop of corn was injured by flood, the cash should be considered a payment of the next year’s rent and a share of the crop should be rent for the flood year. The last year of the tenancy was a flood year and the tenant, who had paid cash before the flood came, offered the landlord a share of the crop, which was refused. Held, that as there was no “next year,” of the tenancy, an action for money had 'and received would lie against the landlord for the money in his hands so paid in advance in the flood year.</p> <p>4. -: -: -: Act of Parties: Construction. That, although the contract of renting'only stipulated for share of corn, yet as wheat was sown by consent in the fall preceding the flood year, it was a construction of the contract that “corn” included wheat.</p>

<p>EQUITY: Trustee: Mortgage Securing Several Claims. Where a person took a note and chattel mortgage in Ms own name to secure three separate claims, in two of which he had an interest, the other belonging to a third party, and afterwards secured possession of the property from the mortgagor and appropriated it exclusively to the claims in which he had an interest, it was held that he was a trustee and became liable to the third party, and that an action in equity was properly brought.</p>

<p>1. HEALTH INSURANCE: Reasonable or Litera! Construction. A policy of health, insurance provided for payment when the assured was “necessarily and continuously confined within the house and therein regularly visited by physician.” The assured lived in Missouri, but was taken seriously sick at his hotel in the state of Florida. He was attended by a physician there for several days, who advised that he be taken home. He was then brought to his home in Missouri in a pullman sleeping car and remained sick for several weeks. It was held that a reasonable construction of the policy would include the sickness thus originating in Florida, and his trip home.</p> <p>2. -: -: Sickness Within the House. A policy of health insurance providing for payment in case the assured was “continuously confined within the house, and therein regularly visited by a legally qualified physician” should not be construed to mean that the assured should be actually within the walls of a house all of the time of his sickness.</p> <p>3. NOTICE: Waiver. Though a policy of health insurance requires notice of sickness to be given within ten days, yet, if no objection to the claim is made on that account and the insurer encourages the assured to go to the trouble and expense in proving his claim and afterwards advises him that the only reason it is not paid is that it does not come within the meaning of the policy, there is a waiver of notice.</p>

<p>JURISDICTION OF COURT: Voluntary Appearance. The filing of an amended statement in a justice court to which a cause was sent on change of venue, supplying a legal plaintiff is the same as bringing a new action, and if the defendant appears voluntarily to that action he will be held to have waived the issuance and service of process and to have subjected his person to the jurisdiction of the court.</p>

— Hon. W. D. Rush, Judge. (1) The cause should not have been submitted to the jury as to respondent’s second counterclaim. His evidence showed that he had not completed his contract with the Hartman Bridge and Construction Company, and did not know how much had been delivered to that company nor whether he would be called upon to deliver the remainder.

— Hon. Thomas J. Seehorn, Judge. (1) The court should have granted a new trial. The discretion of a court in overruling a motion for new trial because the verdict is against the weight of the evidence, is not absolute. If the discretion has been used unwisely, an appellate court will interfere. Gould v. St. John, 207 Mo. 1. c. 631; Canterbury v. City, 130 Mo. App. 1. c. 4. (2) The court erred by giving instruction No. 1. St. Louis v. Kansas City, 110 Mo.

<p>1. HUSBAND AND WIFE: Alienation of Affections: Damages. A husband is entitled to recover damages in an action against such as persuade the wife to live separate from him without a sufficient cause or against such as take her away either by fraud and persuasion or open violence.</p> <p>2. -: -: -. The law encourages matrimony, and the state is interested in maintaining the stability of the marriage relation, and will not tolerate even parental interference not prompted by love and desire to promote the child’s welfare.</p> <p>3. -: -: -: Conspiracy: Joint Tort-feasors. Where several wrongdoers are joined as defendants charged with the same tort, plaintiff may dismiss, at any stage of the proceedings, as to any one of them, without affecting the merit of the action as to the others.</p>

— Eon. James E. Goodrich, Judge. (1) Defendant Telephone Company could not be held liable in the absence of proof of actual knowledge that the light wire had been erected; therefore the demurrers to the petition and to the evidence should have been sustained. The first instruction given at plaintiff’s request was erroneous; and the. 4th, 13th, 14th, and 20’th instructions requested by defendant Telephone Company should have been given.

<p>Appeal from Boone Circuit Court. — How. F. H. Harris, Judge.</p>

— Eon. G. A. Mosman, Judge. (1) Plaintiff is not entitled to an easement. He does not claim by express grant, and tbe evidence does not support a claim to title by prescription. Plaintiff failed to prove tbe four essential facts to sustain a claim of adverse user, to-wit: First. User for the prescribed period. Second. That the use was adverse. Third. That it was under a claim of right. Fourth. Notice to the owner of the user and of its character and of the claim of right.

<p>1. EQUITY: Judgment: Probate Courts. Where an erroneous judgment is entered by mistake of a probate court in the final settlement of an estate, a court of equity cannot afford relief, if the action in equity is barred by the Statute of Limitations (Section 1888, Revised Statutes 1909).</p> <p>2. PROBATE COURTS: Judgment Final. A judgment of a probate court finally settling and distributing an estate and discharging the executor, is a final judgment, which, after the expiration of the term at which it is entered, cannot be set aside by that court.</p> <p>3. PRACTICE, TRIAL: Demurrer: Motion to Strike Out. Where it is sought to attack the sufficiency of a petition, the better practice is to do so by demurrer, but where proper results are obtained by a motion to strike out, the appellate court will not disturb the judgment.</p>

<p>Mandamus.</p> <p>Appeal from Sullivan Circuit Court. — Hon. Fred Lamb, Judge.</p>

— Eon. E. B. Shain, Judge. (1) The court erred in refusing the appellant’s peremptory instruction, and in giving the respondent’s. Under the undisputed facts in the case the cider mill was the personal property of the apppellant when he sold it to the respondents. Pile v. Holloway, 129 Mo. App. 593; Hines v. Ament, 43 Mo. 298; Fuller v. Tabor, 39 Main 519. (2) The court erred in refusing appellant’s fourth instruction.

<p>Appeal from Jackson Circuit Court. — Hon. Herman BrumbacJc, Judge.</p>

<p>1. SALES: Warranty: False Representation: Instruction. In order to constitute false representations as to the quality of goods, the representations must be made to the party relying on them, that he relied on and acted on them and that they were made to deceive, and where it is shown that the purchaser did not rely on the representations but examined the goods, although the opportunity for doing so was somewhat restricted, and that the seller had never seen them and knew nothing of their quality, an instruction to the effect that the seller had warranted the quality and condition of the goods, was erroneous.</p> <p>2. -: Contract: Warranty. Where an offer to sell barrel hoops, then in a car, contained in a letter which states that the quality was all right, was not accepted, but the sale was made on another and different proposition without any representation of quality, there is no warranty as to quality.</p>

<p>Appeal from Jackson Circuit Court.— Eon. Thomas J. Seehorn, Judge.</p>

— Hon. Samuel Davis, Judge. (1) Where the danger is as well known to the servant as the master, the former must he taken to have assumed the risk, and cannot hold the master responsible for his injuries. Watson v. Coal Co., 52 Mo. App. 366; Beckman v. Brewing Assn., 98 Mo. 555; Steinhauser v. Spraul, 127 Mo. 542; Hager v. Railroad, 207 Mo. 302; Booth v. Railroad, 217 Mo. 7101.

— Hon. Herman ,■ Brumback, Judge. (1) There is no evidence that the car conld have been stopped with dne regard to the safety of the passengers after plaintiff entered the danger zone and defendant’s demurrers to the evidence should have been sustained. Gabriel v. Railroad, 130 Mo. App. 1. c. 656; McKenna v. Railroad, 54 Mo.

— Hon. A. H. Waller, Judge. (1) The court erred in refusing to instruct a verdict for the defendant at the close of the evidence for the plaintiff. The petition charged that the cow entered the right of way over the negligently defective cattle-guard. There was a total absence of proof that the cow entered the right of way. In the absence of direct proof the law presumes that the animal entered upon the right of. way at the point it was struck.

— ¿few. JoJm O. Park, Judge. (1) The finding and judgment of the court should have, been for the plaintiffs. (2) The court erred in giving its declaration and conclusion of law numbered 3, page 24 appellants’ abstract of record. Boppart v. Surety Co., 140 Mo. App. 675; Martin v. White, 128 Mo. App. 117; Beers v. Wolf, 116 Mo. 179; Risse v. Planing Mill Co., 55 Kas. 518; Martin v. White, 128 Mo.

<p>1. BILL AND NOTES: Statute of Limitations. Plaintiff sued, March 25, 1910, on a promissory note dated January 21, 1899, payable one day after date, with payments endorsed thereon August 9, 1899, September 28, 1899, and May 21, 1900. The .Statute of Limitations was pleaded in bar. Held, that the burden was on plaintiff to produce proof of the last payment by' evidence aliunde an endorsement of such payment on the note itself, and as no such evidence was produced, the trial court properly directed a verdict for defendant.</p> <p>2. -: -. An endorsement on a note by the payee of a payment made after the note by its terms is barred by the statute, is a self-serving act which standing alone is of -insufficient probative strength to carry to the jury the issue of whether or not such payment, in fact, was made.</p>

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) Where a petition for divorce states a cause of action and the evidence offered is uncontradicted and substantiates the allegations of the petition, plaintiff is entitled to a decree of divorce as a matter of right, and it is the duty of the court to grant it. Deschodt v. Deschodt, 59 Mo. App. 102; Ulrey v. Ulrey, 80 Mo. App. 50; Kilpatrick v. Kilpatrick, 80 Mo. App. 73; Lynch v. Lynch, 87 Mo.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) The allegations of the petition were denied by the answer, the defendant was entitled to have the jury pass upon the evidence of plaintiff, although it may not have offered any evidence at all. The peremptory instruction was erroneous. Whitson v. Bank, 105 Mo. App. 617; Hugumin v. Hines, 97 Mo. App. 355; Barker v. Lewis Pub. Co., 131 S. W. 925.

<p>Appeal from St. Louis City Circuit Court. — Hon. George H. Williams, Judge.</p> <p>(1) Even if the judgment against the defendant were erroneous, which is not the case, still, the court has no jurisdiction after the lapse of the term to set aside a judgment on the mere ground of error in law or fact; the remedy of the aggrieved party is by appeal or error. ' McCindley v. Newton, 75 Mo. 115. (2) Where a party who is fully apprised of his rights suffers judgment to go against him when he might by the exercise of reasonable diligence have prevented a recovery, he cannot raise the question of the validity of such judgment in a subsequent proceeding. Hotel Assn. v. Parker, 78 Mo. 329; Reed v. Hansard, 37 Mo. 199; Hadley v. Bernero, 103 Mo. App. 549. (3) There are only two classes of cases in which a judgment may be attacked after the lapse of the term, even in a direct proceeding between the original parties; one is where the invalidity of the judgment is attempted to be shown by matters dehors the record, and the other where the irregularity appears from the record itself, Mfg. Co. v. Baker, 35 Mo. App. 217; McGindley v. Newton, 75 Mo. 115.</p> <p>(1) The court had jurisdiction, after the lapse of the term and any time within three years, to set aside, for any irregularity, on motion, a judgment rendered within such three years. R. S. 1899, sec. 795; Fisher v. Fisher, 114 Mo. App. 627; Downing v. Still, 43 Mo. 309; Harbor v. Railroad, 32 Mo. 423; State ex rel. v. Waters, 98 Mo. 386; Cross v. Could, 131 Mo. App. 585. (2) The court has been misled in pronouncing a judgment against the defendant Hannah Miller at a subsequent term to that at which she was discharged, and which judgment, if the court had known the real facts, would not have been entered. Such a judgment is a nullity, void of that sanctity that hedges a proper judgment. Fisher v. Fisher, 114 Mo. App. 627; Neenan v. St. Joe, 126 Mo. 89. (3) The “irregularity” for which this judgment should be set aside is the entrance of the same against the defendant Miller at a subsequent term, after she had been dismissed. The judgment is void upon its face. Clowser v. Nolan, 72 Mo. App. 217; Cross v. Could, 131 Mo. App. 585.</p> <p>Statement. — In this case, after the term had elapsed at which final judgment against the defendants was taken, the trial court set it aside for supposed “irregularity,” and the plaintiff has appealed. Whether such irregularity is disclosed on the face of the record is the only question for our consideration.</p> <p>The petition alleged that plaintiff loaned $2000 to her son John L. Morgan, for use in purchasing certain real estate, he agreeing to give her a deed of trust thereon as security; that he refused to secure her as agreed, and, in fraud of her rights, conveyed said real estate by deed of trust to the defendant; Hannah Miller,, as trustee, to secure a loan of $1450 made to bim by one Henrietta Wilkinson; that he died intestate, having the legal title to the property in his name; that on April 16, 1907, default having occurred, the defendant, Hannah Miller, trustee, sold said real estate in accordance with the provisions of said deed of trust and out of the proceeds, after paying the Wilkinson loan, has a surplus of $318.43 on hand. The petition prays that said surplus be subjected to a lien in favor of plaintiff, and that defendant Hannah Miller, trustee, be ordered and directed to pay over said surplus to plaintiff with interest thereon at six per cent from April 16, 1907. The heirs and administrator of John L. Morgan were made parties defendant in said suit, as was Hannah Miller, trustee, and they were all duly summoned.</p> <p>The defendant Hannah Miller’s pleading consisted of an answer which contained a general denial of all the allegations of plaintiff’s petition, followed by specific denial that John L. Morgan made the Wilkinson deed of trust in violation of his agreement with the plaintiff or in fraud of the plaintiff’s rights; also a cross-bill by way of interplea.</p> <p>• Plaintiff’s reply was a general denial of the new matter set up in the cross-bill.</p> <p>On December 1, 1908, the $318.43 was paid into court by defendant Hannah Miller. On February 2, 1909, and at the February term 1909, the cause came on for hearing, with the plaintiff and defendant Hannah Miller as well as the defendant administrator present, and the court made an order wherein the court first finds “that the defendant Hannah Miller, trustee, is not entitled to the relief prayed for in her cross-bill of interpleader, and doth order, adjudge and decree that the said cross-bill of Hannah Miller, trustee, in the nature of an interplea, be and the same is hereby dismissed without cost to said defendant,” and then recites that the plaintiff’s cause of action upon the pleadings, the evidence and the proofs adduced, is submitted to, and taken under advisement by, the court.</p> <p>On February 4, 1909, defendant Hannah Miller filed a motion for a new trial, which was overruled on February 13,1909, during said February term. After-wards on April 28, 1909, and at the April term, 1909, of said court, the court made and entered a final judgment or decree in the cause. This decree, after reciting that, on February 2, 1909, this cause came on for trial, with the plaintiff and the defendants Hannah Miller, trustee, and Joseph H. Morgan present, and that the same was then submitted to the court upon the pleadings and evidence adduced and taken by the court under advisement, finds the issues therein joined in favor of the plaintiff, and then proceeds as follows: “It is therefore ordered, adjudged and decreed by the court that the plaintiff have judgment against the defendant Hannah Miller for $31.05, being interest at the rate of six per cent per annum on said balance or surplus in her hands from the 16th day of April, 1907, the day on which said real estate was foreclosed, and the date on which she received said surplus, to the first day of December, 1908, the day on which said defendant paid said money into the registry of the court. It is further ordered, adjudged and decreed by the court that said surplus, amounting to $318.43, so deposited with the clerk of the court by the defendant Hannah Miller, trustee as aforesaid,, be subjected to a charge or lien in favor of - the plaintiff, and that the clerk of the court, after deducting all costs of this proceeding, pay over to the plaintiff the balance remaining thereof. ’ ’</p> <p>Afterwards on July 19,1909, and at the June term of said court, the defendant Hannah Miller, filed her motion herein to set aside said judgment, charging that it was irregular, first, “in that the same was entered against the defendant Hannah Miller on April 28, 1909, at the April term of court, when the record shows that the fact is that on February 2, 1909, at the February term of this court, the defendant Hannah Miller’s interplea was dismissed, and said defendant then went out of court and was not a party to said cause at the subsequent term of said court when the judgment was entered against her;” second, in that under the facts averred in plaintiff’s petition the defendant Hannah Miller was not chargeable with the interest for which the judgment was rendered.</p> <p>Thereupon on December 17, 1909, the court sustained said motion and modified said decree by setting aside that part thereof which charges defendant Hannah Miller with interest. The plaintiff excepted to such action and in due time filed her motion for a new trial which, was overruled and 'exception saved, and plaintiff has duly prosecuted her appeal to this court.</p>

— lion. B. S. Byors, Judge. (1) The demurrer offered by defendant should have been sustained. The cause was tried and submitted on the last clear chance theory and no evidence was offered to support the verdict based on that theory or on any theory. The humanitarian doctrine takes into account the existent situation. It does not embrace what might have been done under different circumstances. It seizes “the actual facts as they exist. . . .

Louis City Circuit Court. — Hon. George H. Williams, Judge. The court erred in holding that the defendant was not entitled to retain possession of the trunk until the charges against it had been tendered or paid. 2 Hutch-ins 56 S. W. 253; Wells v. Thomas, 27 Mo. 17; I. C. C- Conference Rulings 75, Bulletin No. 4; Railroad v. Reed, 121 S. W. 519'; Moses v. Railroad, 32 Pac. 488; Miller v. Railroad, 18 S. W. 954; Pearce v. Railroad, 192 U. S. 179; Coal & Coke Co. v. Railroad,…

— Hon. David H. Eby, Judge. (1) There is no evidence connecting this testimony with the alleged condition of defendant as brought about by the assault and battery, if any. The evidence relating to defendant’s wealth should not have been admitted for the reason that there were no aggravating circumstances shown to authorize a recovery of punitive damages. Hence, evidence of the opulence or poverty of defendant was not properly admitted in evidence.

Louis Circuit Court. — Row. George E. Williams, Judge. (1) The contract in this case is not one of insurance upon the assessment plan because the payment of the promised idemnity is not in any manner or degree dependent upon the collection of an. assessment upon persons holding similar contracts, but is an ordinary whole life policy in which the premium is fixed and level. Hence it is subject to the statute which applies to that form of policies.' Folkens v. Ins. Co., 98 Mo.

— Hon. Charles D. Stewart, Judge. - Statement. — The trial court granted a preliminary injunction restraining the defendants from enforcing a judgment for poll taxes which the defendant city of South Gorin obtained against the plaintiff Beck before defendant Jackson, a justice of the peace, but, upon a final hearing, dissolved this injunction.

<p>DAMAGES: General Damages: Contracts: Action for Breach: Pleading. The damages naturally flowing from'the breach of a, contract are general in character, and are recoverable under a general allegation of damages in the petition followed by a prayer for a stated amount.</p>

<p>Appeal from Scott Circuit Court.— Hon. Henry G. Riley, Judge.</p>

— Eon. Henry C. Riley, Judge. (1) The county court has exclusive jurisdiction over the subject of granting dramshop licenses, and its decision is conclusive. State ex rel. v. Fort, 107 Mo. App. 328. (2) What constitutes the “block or square” in which the dramshop is sought to be kept is a question of fact to be determined by the county court, and its finding on that issue is conclusive.

<p>Appeal from St. Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge.</p>

<p>Appeal from Wayne Circuit Court. — No». J. L. Fort, Judge.</p>

<p>1. LOCAL OPTION: Intoxicating Liquors: Illegal Sales: Sufficiency of Indictment. An indictment for the illegal sale of intoxicating liquor, in violation of the Local Option Law, held sufficient.</p> <p>2. APPELLATE PRACTICE: Crimes and Punishments: Constitutional Question. Where a criminal case is transferred by the Court of Appeals to the Supreme Court because a constitutional question was raised in the trial court, and the Supreme Court subsequently re-transfers the ease to the Court of Appeals without opinion, it will be assumed by the latter court that the Supreme Court determined the constitutional question adversely to defendant.</p> <p>3. CRIMES AND PUNISHMENTS: Practice: Change of Venue. In a Criminal case, where a change of venue is awarded, on defendant’s application, against the regular circuit judge, it is proper to call in the judge of another circuit to preside at the trial, under sections 2594, 2597, Revised Statutes 1909.</p> <p>4. LOCAL OPTION: Intoxicating Liquors: Illegal Sales: Evidence. In a prosecution for selling intoxicating liquor, by introducing in evidence the records of the county court showing the result of a local option election and that such result was duly published in accord with the statute, prima facie proof is made that the Local Option Law was in force.</p> <p>5. -: -: -: Sufficiency of Evidence. In a prosecution for the illegal sale of intoxicating liquor in violation of the Local Option Law, evidence held sufficient to sustain a conviction.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.</p>

<p>Appeal from St. Loiiis City Circuit Court. — Hon. Robert M. Foster, Judge.</p> <p>(1) The court erred in overruling the defendant’s demurrer to the evidence. Harper v. Railroad, 187 Mo. 575; Herbert v. Perry Co., 107 Mo. App. 287; Banks v. Railroad, 40 Mo. App. 458; Waller v. Railroad, 59 Mo. App. 410; Kappes v. Shoe Co., 116 Mo. App. 154; Henry v. Railroad, 76 Mo. 293; Haley v. St.' Louis, 179 Mo. 35; Railroad v. Kellog, 94 U. S. 469. (2) The court erred in giving an improper instruction at the request of the plaintiff. The vice of this instruction is the use of the expression, “and thereby directly contributed to cause the injuries to the plaintiff mentioned in the evidence.” This expression in an instruction has been repeatedly condemned by our Supreme Court and Court of Appeals. Hof v. Transit Co., 213 Mo. 445; Krehmeyer v. Transit Co., 220 Mo. 639; Schmidt v. Transit Co., 120 S. W. 96.</p>

<p>Appeal from St. Louis Court of Criminal Correction.— Hon. Wilson A. Taylor, Judge.</p>

<p>Appeal from Pemiscot Circuit Court. — Hon. Henry G. Riley, Judge.</p>

<p>1. EXECUTORS AND ADMINISTRATORS: Funeral Expenses: Priority. A claim for funeral expenses, if legally exhibited against decedent’s estate within a year after the granting of the first letters on the estate, is entitled to priority over all the other claims, but, if not exhibited until after the expiration of a year and within two years, it is only allowable as a claim of the'sixth class, as provided by section 190, Revised Statutes 1909.</p> <p>2. -: -: Payment by Third Person: Right of Recovery Against Estate. A third person who is not a mere interloper may lawfully incur expense for the proper interment of decedent’s body and recover the amount thereof against decedent’s estate, provided it was reasonable and suitable to decedent’s estate; but a mere interloper may not recover.</p> <p>3. -: -: Payment by Decedent’s Employer: Right of Recovery Against Estate. Where decedent, while working for a telephone company, was killed by a fall from one of its poles, and its-auditor, who was present at the time, directed an under. taker to care for the body and furnish such things as were requisite for the funeral, and the family and administrator of decedent knew these facts at the time the undertaker furnished such requisites, -the company, in paying such expenses, was neither an interloper nor a mere volunteer, and therefore was entitled to recover the amount so paid, if reasonable and not a mere gratuity, as a claim against decedent’s estate, independent of any question of subrogation to the rights of the undertaker or of an assignment of his claim.</p> <p>4. ASSIGNMENTS: Validity: No Consideration. Where a workman was killed while engaged in the performance of his work, and his employer directed an undertaker to care for his body and furnish such things as were requisite for the funeral, an attempted assignment, without consideration, of the undertaker’s bill by the undertaker to the employer, subsequent to the latter’s payment of it, was of no effect as an assignment.</p> <p>5. PROBATE COURTS: Practice. Cases are to be determined in the probate court on the real facts, and matters of form and technicalities are not important.</p> <p>6. APPELLATE PRACTICE: Conclusiveness of Finding of Facts. Findings of fact by the trial court which are supported by competent evidence are conclusive, on appeal.</p>

<p>1. REPLEVIN: Plaintiff’s Possession of Sand Bar: Sufficiency of Evidence. In an action to replevy a barge load of sand taken from an island- occupied by plaintiff, evidence held sufficient to justify a finding that plaintiff was in such actual possession Of the sand bar from which the sand was taken as entitled him to recover the sand from defendant, who was a mere trespasser.</p> <p>2. APPELLATE PRACTICE: Conclusiveness of Findings of Facts; Findings of fact by the trial court which are supported by competent evidence are conclusive, on appeal.</p>

— Hon. Henry G. Riley, Judge. (1) The court was in error in trying this case throughout, for it was submitted to the jury, over the objections and exceptions of the defendant, both as to the testimony and the instructions given at the instance of plaintiff without regard to the allegation of negligence relied upon by plaintiff in his petition, and wholly disregarding the plea of contributory negligence set up by the defendant. .Ellis v. Railroad, 17 Mo.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The court erred in overruling the demurrer to the evidence, because the plaintiff and Dowd were fellow-servants, (a) They were fellow-servants because engaged in a common employment under the same master working to accomplish the same common end. Donelly v. Mfg.

— Hon. Henry G. Riley, Judge. (1) The plaintiffs by releasing'the railroad company destroyed the rights against the wrongdoer and disabled themselves from performing their obligation to the defendant to preserve its rights of subrogation, and therefore plaintiffs cannot exact from the defendant the performance of its obligation to pay to them the loss. Ins. Co. v. Bailroad, 74 Mo. App. 106 ; Pack-ham v. Ins. Co., 91 Md. 515, 50 L. B, A. 828; Highland v. Ins.

<p>Appeal from St. Lonis City Circuit Court. — Hon. George H. Shields, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge.</p>

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) Death being’ shown to have resulted from violent, external causes, .the presumption is that the deceased was exercising due care for his own safety at the time, and not voluntarily or unnecessarily exposing himself to danger; and the burden is on the defendant to rebut that presumption, and show by positive testimony that the assured was violating conditions of the policy. Jamison v. Casualty Co., 104 Mo.

<p>1. APPELLATE PRACTICE: Theory at Trial: Binding Effect. In actions at law, parties are bound, in the appellate court by the theory they assumed in the trial court, even though such theory was not properly presented by the pleadings.</p> <p>2. LANDLORD AND TENANT: Special Taxbills: Action by Landlord to Recover Special Assessment Paid: Pleading: Evidence. In an action by devisees of a lessor against the lessee to recover a special assessment against the property, which had been paid by them, on the ground that the lessee was bound to pay it, allegations in the petition concerning the institution of the proceedings for the assessment, their result,, and that by reason thereof the premises involved became subject to the assessment and that it became and was a charge and claim against the premises, were sufficient to admit evidence of all the steps taken in the course of the proceedings.</p> <p>3. APPELLATE PRACTICE: Theory at Trial: Binding Effect. Where an action by devisees of a lessor against the lessee to recover a special assessment against the property paid by them, on the ground the lessee was hound to pay it, was tried in the trial court and presented in another appellate court, to which the case was erroneously transferred, on the theory that notice hy publication was given as required hy ordinance, that a benefit district was fixed, and that the property was included therein, defendant will not he heard to claim in the appellate court having jurisdiction of the appeal, where the case was subsequently heard, that a judgment in its favor should be affirmed for the reason the petition did not plead nor the evidence show that such' notice hy publication was given, that a benefit district was fixed, or that the property was included therein.</p> <p>4. LANDLORD AND TENANT: Special Taxbills: Action by Landlord to Recover Special Assessment Paid: Evidence: Explaining Legal Terms. In an action by devisees of a lessor against the lessee to recover a special assessment against the property, which had been paid hy them, on the ground the lease required the lessee to pay all taxes, whether general or special, evidence tending to show that the term “special tax” was generally understood bjr lessors and lessees to cover an assessment in a street-widening action was inadmissible,, since that term has a well-defined, legal meaning; hut the admission of such testimony, under the facts of the case, is held harmless error.</p> <p>5. APPELLATE PRACTICE: Theory of Parties: Binding Effect: Treating Facts as in Evidence. Where the judgment in the trial court was for the defendant, and on appeal by the plaintiff, the defendant, in order to uphold the judgment, makes points necessarily predicated on certain ordinances which the court erroneously refused to receive in evidence when offered hy plaintiff, and it is apparent that the trial court considered them in making its finding, there is no necessity for reversing the judgment and remanding the cause for retrial to permit such ordinances to he introduced, hut the appellate court may consider them as in evidence and then render such judgment on the record as ought, of right, to he rendered.</p> <p>6. LANDLORD AND TENANT: Special Taxbills: Action by Landlord to Recover Special Assessment Paid: Judgment Rendered for Plaintiff on Appeal: Appellate Practice. In an action hy devisees of a lessor against the lessee to recover a special assessment against the property paid hy them, on the ground that the lessee was hound to pay it, a judgment in favor of defendant held to he erroneous, and such judgment is reversed and the cause is remanded with directions to the trial court to enter judgment for plaintiff.</p>

<p>The opinion of the Springfield Court of Appeals in this ease (153 Mo. App. 351) is adopted as the opinion of the court.</p>

<p>Appeal from St. Louis City Circuit Court. — lion. Daniel G. Taylor, Judge.</p>

<p>Tlie opinion of the Springfield Court of Appeals in this case (152 Mo. App. 577) is adopted as the opinion of the court.</p>

<p>Appeal from St. Louis City Circuit Court. — Eon. J. Eugo Grimm, Judge.</p>

<p>The opinion of the Springfield Court of Appeals in this case (151 Mo. App. 207) is adopted as the opinion of the court.</p>

<p>Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.</p>

<p>The opinion of the Springfield Court of Appeals in this case (152 Mo. App. 562) is adopted as the opinion of the court.</p>

<p>1. OPINION OF SPRINGFIELD COURT OF APPEALS ADOPTED. The opinion of the Springfield Court of Appeals in'this case (149 Mo. App. 413), except as to the holding that the verdict is excessive, is adopted as the opinion of this court.</p> <p>■». PERSONAL INJURIES: Damages; Excessive Verdict. In an action for personal injuries,, a verdict for plaintiff for $5000 held not excessive.</p> <p>3. APPELLATE PRACTICE: Jurisdiction: Entry of Remittitur in Court Without Jurisdiction. A remittitur filed by the respondent in an appellate court which, had no jurisdiction of the cause, to procure an affirmance of a judgment in his favor, was a nullity.</p>

<p>Appeal from St. Lonis County Circuit Court. — Ho». John H. McElhinney, Judge.</p>

<p>1. OPINION OF SPRINGFIELD COURT OF APPEALS ADOPTED. The opinion of the Springfield Court of Appeals in this case (149 Mo. App. 428) is adopted as the opinion of the court.</p> <p>2. NUNC PRO TUNC ORDER: Necessity of Documentary Evidence. A nunc pro tunc record entry can only be made at a subsequent term when sustained by some entry or memorandum on file, or on the minutes of the clerk or the docket of the court, made at the trial term, and cannot be made on the recollection of the judge himself or on any evidence aliunde the record.</p>

<p>Appeal from St. Lonis City Circuit Court. — Eon. William M. Kinsey, Judge.</p>

<p>1. OPINION OF SPRINGFIELD COURT OF APPEALS ADOPTED. The opinion of the Springfield Court of Appeals in this case (152 Mo. App. 521) is adopted as the opinion of this court.</p> <p>2. STREET RAILWAYS: Action for Death: Obstruction in Street: Charter Duties of Defendant: Pleading: Petition Construed. In an action against a street railway company for the death of a teamster, alleged to have been caused by defendant’s maintenance of an improper switch in a street, an allegation in the petition that the pavement on both sides of the rails where the flanges were constructed and maintained had become out of repair and was worn and depressed for six inches on each side of the rails, from the wear incident to the ordinary uses of the street, was insufficient to raise the issue of defendant’s negligence in failing to perform its charter duty to keep the street in repair for one foot outside the rails, since, to declare on. a negligent breach of duty in that regard, it should have been, alleged that defendant either knew, or by the exercise of ordinary care could have known, that the street was defective.</p>

<p>The opinion of the Springfield Court of Appeals in this case (146 Mo. Ap.p. 288) is adopted as the opinion of the court.</p>

<p>The opinion of the Springfield Court of Appeals in this ease (153 Mo. App. 424) is' adopted as the opinion of the court.</p>

<p>Appeal from St. Louis City Circuit Court. — lion. Daniel G. Taylor, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — fio». Geo. fi. Williams, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Mon. Virgil Buie, Judge.</p>

<p>The opinion of the Springfield Court of Appeals in this case (144 Mo. App. 570) is adopted as the opinion of the court.</p>

<p>Tlie opinion of the Springfield Court of Appeals in this case (154 Mo. App. 411) is adopted as the opinion of the court.</p>

<p>Appeal from St. Louis City Circuit Court. — How. Bobt. M. Foster, Judge.</p>

— Hon. J. G. Sheppard, Judge. (1) The law fixes the maximum rate defendant was allowed to charge for the shipment in question at carrier’s risk, this being an intra-state shipment and the contract shows on its face that defendant charged all that it was allowed under the law to charge for the shipment without any limitations on its «common-law liability. It could not, therefore, call the same a lower or a reduced rate. Paddock v. Railway, 155 Mo. 524.

— Hoto. B. G. Thurmcm, Judge. (1) The court erred in refusing plaintiff’s instruction marked “ Al.” This instruction submitted to the jury the only issue of fact made by the pleadings. Every fact necessary to entitle plaintiff to recover was admitted except the amount of money paid out by the plaintiff in cashing the checks- of Roley & Company.

<p>1. DAMAGES: Common Carriers: Shipment of Corpse; Mental Anguish: Exemplary Damages. In an action against a railroad company for damages on account of the inhuman, willful and malicious manner in which the box and casket containing the body of the dead wife of plaintiff were handled, it appeared in evidence that a number of trunks had been piled around and upon the coffin box in the baggage car,, and in unloading the same the box was used as a bouncing board to break the fall of the trunks, and plaintiff’s protests against such treatment at the time were unheeded by the baggage man. Held, that plaintiff was not only entitled to a recovery of actual damages to the box and the casket and the additional expense required for preparing the body for burial, but also for his grief and mental anguish, as well as exemplary damages.</p> <p>2. PLEADING: Common Carriers: Pleading Contract: Action in Tort. In an action against the carrier for damages on account of the rough handling and inhuman treatment of a box and casket containing the dead body of plaintiff’s wife, which had been shipped as baggage, the petition refers to the contract of carriage entered into between plaintiff and defendant, but ’ this is held to be only matter of inducement and that the cause of action is in tort and not on contract. .</p> <p>3. PROPERTY: Corpse: Husband and Wife. The husband has a quasi property right in the dead body of his wife which entitles him to the possession and control of the same for the purpose of proper and decent burial.</p> <p>4. DAMAGES: Mental Anguish: Personal Injury. As a general rule mental anguish as a proper element of damages is limited to those actions where the plaintiff has received some injury to his person or some legal right has been invaded of a nature, the natural consequence of which is to cause grief and distress of mind. •</p> <p>5. -: -: Negligence; Malice. As a general rule in cases of unintentional negligence, mental suffering, unaccompanied by bodily injury, is not an element of damages, but this rule does not apply in cases of wilfull and wanton wrong, and those committed with malice and intention to cause mental distress.■</p> <p>6. INSTRUCTIONS: Common Carriers: Damage to Corpse and Coffin. In an action against a carrier for damages on account of the rough and inhuman handling of the hox and casket containing the dead body of plaintiff’s wife, the instructions given in the case are examined and held that they contain no reversible error.</p> <p>7. -: -: -: Specific Negligence: Burden of Proof: Self Invited Error. In an action against a carrier for damages to a coffin and corps, which had been shipped as baggage, the petition alleged certain specific acts of negligence, but an instruction given for plaintiff put the burden upon the defendant to show that it was not guilty of any negligence. Held, this was error, but that the defendant was in no position to complain for its instruction contained the same error.</p> <p>8. -: Damages: Failure to Define Elements of. Damages. ' An instruction is objected to for the reason that it did not define the elements that the jury had the right to consider in determining the amount of ■ plaintiff’s damages, and neither were the jurors limited to the evidence to determine the amount. The authorities are reviewed and held that the instruction is not erroneous in its general scope, that the damages are not excessive and the judgment should not be reversed, because the instruction was not more specific.</p> <p>9. - — :-: Master and Servant: Scope of Employment. In an action for damages against a railroad company for rough handling of a hox and casket containing a corpse, which was shipped as baggage, the evidence disclosed that one, M., was one of the persons in charge of the baggage in the car at the time the casket was received for shipment and during the time it was damaged while the baggage was being unloaded by M. Held. that it was not reversible error to refuse an instruction telling the jury that the defendant would only be liable for such acts as its servant committed within the scope of his employment.</p>

— No». D. E. Blair, Judge. (1) The plaintiff cannot plead one cause of action and recover on another. Buffington v. Railroad, 64 Mo. 246; Milling Co. v. Transit Co., 122 Mo. 258; Obert v. Dunn, 140 Mo. 476. (2) Where the declaration is on a special .contract, the contract must be proved as set forth or the plaintiff cannot recover. 1 Wait’s Act. and Def., p. 390, sec. 2; Lanitz v. King, 93 Mo. 513.

— IZcm. W. N. Evans, Judge. (1) The court erred in admitting the statement of witness Davidson, to the effect that plaintiffs had nothing to do with him making the deal; that plaintiffs were not the procuring and inducing cause of the sale. Stinde v. Blesch, 42 Mo. App. 578. (2) Defendant’s instruction No. 4, which requires plaintiffs to show that they were the prime cause of the sale to Davidson is highly prejudicial. The term used is unknown to the law.

— Hon. B. G. Thurman, Judge. (.1) The statute and ordinance providing that the council shall designate the time and place is mandatory ; that was a duty which the council could not delegate ; the place of holding the election was not fixed in the notice; this being a special election, the statute and ordinance must be strictly followed. State ex rel. v. Tucker, 32 Mo. App. 620; Bean v. County Court, 33 Mo.

— Ho». John T. Moore, Judge. (1) The court committed the reversible error in permitting Eura Davis and Edwin Belk to testify to what Jesse Lewis told them the day after the fire as it was hearsay and could not bind the defendant, Stewart, as defendant was absent when said conversation was had. Cobel v. McDaniel,, 33 Mo. 363; Grougue v. Burgess, 71 Mo. 389’; Dunn v. Altman, 50 .Mo.

— New. Carr McNatt, Judge. (1) The court erred in admitting evidence that the mare was injured as a race mare, when the petition did not charge damages of that kind. This being the natnre of special damages, absent such charge in the petition, this evidence was not admissible. Cook v. Clary, 48 Mo. App. 166; Krueger v. Railroad, 94 Mo. App. 458 ; Brown v. Railroad, 80 Mo. 457.

<p>Appeal from Christian Circuit Court. — Ron. John T. Moore, Judge.</p>

— Ron. B. G. Thurman, Judge. (1) A party in interest only is empowered by tbe statute .to file the affidavit of prejudice disqualifying a probate judge, R. S. 1900, sec. 4063'. Tbe words, “party in interest” and words of similar meaning bave been universally beld to mean a party in financial interest. Railroad v. Gould, 20 N. W. (Ia.) 464; In re Shepard’s Estate, 32 Atl. Rep. 1040; Jele v. Lemberger, 45 N. E. (111.) 279.