Volume 161 — Missouri Appeal Reports

— Hon. J. G. Sheppard, Judge. (1) The court erred in refusing to decláre the law as asked by defendant at the close of all testimony by way of demurrer thereto. Gilpin v. Railroad, 197 Mo. 319; Pearson v. Railroad, 33 Mo. App. 543; Jennings v. Railroad, 37 Mo. App. 651; Crenshaw v. Railroad, 54 Mo. App, 233; Webster v. Railroad, 57 Mo. App. 451; Grant v. Railroad, 56 Mo. App. 65; Ellis v. Railroad, 89 Mo. App. 241; Duncan v. Railroad, 111 Mo.

<p>1. REAL ESTATE AGENTS: Commission. Where real estate agents are employed to find a purchaser ready, willing and able to buy a farm on terms and they find a purchaser who entered into a written contract to buy the farm and paid part of the purcase price as earnest money, but thereafter refused to consummate the sale on the ground that he was unable to procure the necessary funds, it being shown however that he was solvent.and able to respond in damages,, they are entitled to their commission; as the ability of the purchaser is to be tested, not by his ability to procure the money to pay for the farm, but to respond in damages should he fail to perform the contract of sale.</p>

<p>1. ADMINISTRATION: Bills and Notes: Joint Owners. Notes payable to plaintiff and another were found among the papers of the latter by his administratrix, and were included in the distribution of the personal estate. When plaintiff asserted his interest in said notes, the distributees conceded his claim. Held, that the inclusion of the notes in the order of distribution did not constitute a conversion of plaintiff’s interest therein.</p> <p>2. -: -: Order of Distribution. The order of distribution only transferred the interest of the intestate to the distributees and. they became tenants in. common with plaintiff, and as such were entitled to retain possession of the notes.</p> <p>3. -: -: Tenants in Common. A tenant in common can only be held liable for conversion when he so appropriates the common property as to render its future use to his co-tenant impossible.</p>

<p>Original certiorari.</p>

<p>1. BILLS AND NOTES: Chattel Mortgages: Recoupment. Defendant owned two stores, both containing soda fountains, for which notes were given in payment secured by chattel mortgages on each fountain. Afterward a partnership was formed with plaintiff, and both stores were owned and operated by the partnership, which was later dissolved by agreement in writing, and plaintiff got one store and defendant the other. The dissolution contract provided that defendant should pay all hills heretofore contracted by him or the partnership. Defendant was compelled to pay the notes secured by mortgages on the fountain in his store to prevent foreclosure, and sued to recover the amount so paid. Held, that as the defendant alone executed the soda fountain notes and mortgage and the dissolution written contract being silent concerning their payment, the judgment for the plaintiff will not he disturbed.</p>

<p>1. WITNESS: Competency: Interest: Party: Death. The witness statute of Missouri removes the commoti. law disqualification of a witness by reason of his interest as a party to the suit or cause of action, except where the other party to the contract is dead or insane. His disqualification where the other party is dead or insane is not because of his interest, but for the reason that the other party is dead or insane.</p> <p>2. -: -: Party to the Suit. A witness who was a party to the contract or cause of action in issue, is incompetent where the other ■ party to such contract is dead or insane, whether he (the witness) is a party to the suit or not.</p> <p>3. -: Joint Interest with Plaintiff: Contract or Cause of Action. A proposed witness who is not a party to a suit, but who jointly with the plaintiff prosecuted the business upon which the claim in suit is based, with the consent of the principal, and assisted in prosecuting the suit, and was equally interested with the plaintiff in the sum to be recovered, is a party to the contract or cause of action in issue and on trial, in the sense of the statute (Sec. 6354, R. S. 1909),. and is therefore incompetent.</p> <p>4. -: -: -: Inconsistent Positions: Estoppel. One real estate agent represented the seller in the sale of lands and another represented the buyer. In the negotiations they each agreed that they would share commissions received from their principals. Each brought suit against his principal for his commission. In the suit of the .first the defense, in part, was that the agents had this agreement as to commissions without the knowledge of the principals, and therefore the agreement of the agent was illegal and no commissions could be recovered. The plaintiff avoided such defense by claiming that the other agent was not the agent of the buyer. In the suit of the second, prosecuted on the theory that he was the agent of the buyer, but both the buyer and seller knew of the agreement to share commissions and consented thereto, it was held that the two positions were inconsistent and that the plaintiff in the second suit could not recover.</p>

<p>Appeal from Jackson Circuit Court. — Now. Hunt G. Moore, Special Judge.</p> <p>°(1) The contract for this coal is admitted. It was unconditional and it is admitted that forty-five out of the fifty ears were not delivered; therefore the judgment should necessarily he for the plaintiff for some amount. Eaton v. Coal Co., 125 Mo. App. 194. (2) The cause printed in the left-hand corner of the letterheads, all of which letters were written after the contract was entered into, was entirely irrelevant, immaterial and incompetent as evidence, and that .clause constituted no part of the contract, nor was the contract in any way modified by it. (3) The evidence is conclusive that the failure to supply the coal as per contract was because defendant’s contracts to furnish that quality of coal to plaintiff and others (Abst. 43!) was in excess of their supply and therefore the provisions of the clause in the corner of the letter-heads could not be material; nor for the same reason could the question of custom be material. (4) There is no evidence to show that plaintiff knew of any such custom as was claimed by defendant and plaintiff could not be bound by such a custom unless knowledge of it was brought home to him. Hoolan v. Bailey, 30 Mo. App. 585. (5) The fact that a certain firm ha.s a certain clause printed on its letter-heads cannot make the matter stated in that clause into a custom. A custom is a rule of the trade and not a rule of an individual. Hoolan v. Bailey, 30 Mo. App. 585; Coquard v. Bank, 12 Mo. App. 192; Martin v. Ashland, 49 Mo. App. 43. (6) The contract having been in the name of Henry Eaton, he was necessarily the proper party plaintiff. Wolf v. Railroad, 97 Mo. 473; Harrigan v. Welch, 49 Mo. App. 496,</p> <p>(1) The bill of exceptions was signed and filed ont of time and can not be considered on this appeal, (a) The special judge had exclusive jurisdiction over the case, and the regular judge had no right to extend time of filing bill of exceptions, (b) The order made by the regular judge on September 14, 1911, giving appellant till November 15; 1911, to file bill of exceptions, was made without authority of law, and the bill of exceptions filed on October 23, 1911, was filed out of time, (c) Where the regular judge is unable to hold a term of court and a special judge is elected and holds the term, the regular judge has no authority to sign a bill of exceptions in a case tried by the special judge at a preceding term, but such bill of exceptions should be signed by the special judge. Ranney v. Packing Co., 132 Mo. App. 324; Martin v. Ins. Co., 124 Mo. App. 221; State v. Bobbitt, 215 Mo. 10; The court sitting as a jury also found as a fact (instruction 5) that there was no evidence as to the number of tons of coal defendant failed to deliver plaintiff; that there was no basis upon which the court could estimate damages even if plaintiff were entitled to damages. (2) The court sitting as a jury found that the evidence in the case showed that by the custom at Weir City, such orders as the one sued on were made subject to the car supply. The court declared the law as to the measure of damages to be, that there was no evidence in the case to support a finding, even if plaintiff had been entitled to such finding.</p>

<p>Appeal from Jackson Circuit Court. — Sew. W. O. Thomas, Judge.</p> <p>(1) The motion to discharge the jury should have been sustained. Peck v. Traction Co., 131 Mo. App. 1. c. 141; Wojtylak v. Coal Co., 188 Mo. 1. c. 286; State v. Spivey, 191 Mo. 87 1. c. 110'; State v. Martin, 229 Mo. 1. c. 640. (2) The verdict is excessive. (3) In view of the undisputed physical facts.defendant’s peremptory instruction should have been given. Scroggins v. Ry. Co., 138 Mo'. App. 215.</p>

<p>Appeal from Jackson Circuit Court.— Hon. B. B. Middlebrook, Judge.</p> <p>(1) Tire circuit court acquired no jurisdiction of the cause, because of a defective amended petition. Sec. 2373, R. S. 1900'; Ticknor v. Vorhees, 46 Mo. 110; Anderson v. McPike, 86 Mo. 293; Pate v. Pate, 6 Mo. App. 49; Stansberry v. Stansberry, 118 Mo. App. 427. (2) Plaintiff must establish a cause for divorce and that he is the innocent party. Miles v. Miles, 137 Mo. App. 38; Solomon’s Proverbs, chapter 31. (3) The marital contract is not to be severed upon slight grounds. Weller v. Weller, 154 Mo. App. 10; Libbe v. Libbe, 138 S. W. Rep. 685; English v. English, 139 S. W. Rep. 618; Rutlege v. Rntlege, 139 S. W. Rep. 1180.</p> <p>(1) The circuit court acquired and retained jurisdiction to grant plaintiff a decree of divorce. Smith v. Smith, 48 Mo. App. 612; Wood v. Wood, 59 Ark.' 441 ;• Luce v. Luce, 15’ Wa,sh. 608, 47 Pac. 21; Michael v.. Michael, 79 S. W. (Tex.) 74; Dunlop v. Dunlop, 130 'S. W. (Tex.) 715; R. S. 1909, section 2373, (2.) Plaintiff did establish a cause for divorce and that he is the innocent party. Green v. Green, 22 Mo. App. 497; Clinton v. Clinton, 60 Mo. App. 300; Tripp v. Tripp, 78 Mo. App. 415; Lynch v. Lynch, 87 Mo. App. 36. (3) The marital contract in this instance was not severed upon slight grounds. Tripp v. Tripp, 78 Mo. App. 415; Lynch v. Lynch, 87 Mo. App. 36; Schweikert v. Schweikert, 108 Mo.'App. 478; Rose v. Rose,-129 Mo. App. 179; Clark v. Clark, 128 S. W. 218.</p>

— Now Jas. N. • Slover, Judge. (1) There was no evidence that the collision was the proximate cause of plaintiff’s injuries, and defendant’s demurrer to the evidence should have been sustained. Byerly v. Light, Power & Ice Co., 130 Mo. App. 1. c. 608; Dunphy v. Stock Yards Co., 118 Mo. App. 1. c. 516; Trigg v. Land & Lumber Co., 187 Mo. 227; Goransson v. Manufacturing Co., 186 Mo. 300.

— IIon. G. W. Wcmamdker, Judge. (1) The master is not an insurer of the safety of the servant. It is a well settled rule of law that if the work is of a dangerous character, and such danger is patent to the servant, he assumes the hazards and risks incident to such employment, and if injured thereby cannot recover of the master for such injuries. Watson v. Coal Co., 52 Mo. App. 366; Flynn v. Bridge Co., 42 Mo.

— Ro». James E. Goodrich, Judge. (1) Under the law of Kansas when two persons are riding on the driver’s seat of a wagon, one of whom is driving, and are engaged in a common purpose with equal opportunity to see and appreciate the approaching danger from such objects as approaching cars the negligence of the driver is imputable to his companion. Bush v. Railroad, 62 Kan. 709, 64.

<p>Appeal from Jackson Circuit Court. — Hon. Walter A. Powell, Judge.</p> <p>The verdict in this case was for the right party. R. S. Mo. 1909, sec. 2082; Bassett v. Glover, 66 Mo. 388; Fairbanks v. Long, 91 Mo. 628; Biishey v. Glenn, 107 Mo. 331; Henry v. Railway, 133 Mo. 526; Burns v. City, 131 Mo. 372; Carr v. Railway, 195 Mo. 224; Wabash v. Sloof, 202 Mo. 198; Quinn v. Railway, 218 Mo. 545.</p> <p>Respondent moves the court to dismiss this appeal for the reason that the abstract of record does not show that a sufficient affidavit for appeal was filed. Shemwell v. McKinney, 2.14 Mo. 692; Wright v. Seiffle, 214 Mo. 694; Greenwood v. Parlin, 98 Mo. App. 407; Schested v. Kansas City, 68 S. W. 1068; Harding v. Bedoll, 202 Mo. 625. The court sustained respondent’s motion for a new trial for the reason “that the court committed error in giving the instructions for defendant.” By reference to respondent’s petition, the court will observe the negligence on which this case is predicated. The allegations of the petition were proven, in toto, by the evidence on behalf of respondent, and these instructions did not -properly declare the law applicable-to this case. Hurley v. Street Car Co., 120 Mo. App. 262; Green v. Railroad, 122 Mo. App. 647; Bond v. Railroad, 122 Mo. App. 207.</p>

— Hon.' W. O. Thomas, Judge. (1) The court erred in finding for defendant because her self-contradictory testimony shows that same lacks the credibility on which a decree could be based. Moore on Facts, vol. II, sec. 1262; Clarkson v. Clarkson, 22 Mo. App. l. c. 248; Starkie on Evidence, 583; State v. Jim, 1 Dev. 510; Stoffer v. State, 15 Ohio St. 47. (2) The testimony of defendant discloses that no indignities within the meaning of the law were offered to her by her husband.

<p>1. ANIMALS: Vicious Dogs: Damages: Instruction. An instruction, in an action for damages for killing a dog which was on defendant’s farm and about to attack bis sheep, which left to the jury to say whether the act of defendant was wrongful and without good cause, is erroneous.</p> <p>2. -: -: -: -. Where a dog, while unattended, was chasing sheep, or threatening to do so, on the farm of the owner of the sheep, the latter had a right to cause it to be killed.</p> <p>3. -: -: -. Under the laws of this state, dogs are held and considered to be property, and, as such, are entitled to the same protection and consideration as other property.</p>

— Hon. E. E. Porterfield, Judge. (1) The court erred in not sustaining demurrer asked by the defendant at the close of the plaintiff’s case. Quinn v. Railroad, 218 Mo. 545. (2) The court erred in excluding testimony offered by the defendant. Ayers v. Railroad, 190 Mo. 1. c. 235; Anderson v. Railroad, 161 Mo. 411. (3) The court erred in not sustaining the motion for a new trial. Howland v. Reeves, 25 Mo. App. 458.

— Hon. Joseph D. Perkins, Judge. (1) The agent has no right to delegate his authority unless he is given such authority by expressed terms of substitution. Story on Agency, secs. 14, 29, 108; Land & Lbr. Co. v. Christman, 204 Mo. 378. (2) It is a well-settled principle in the law of agency where discretion is required on the part of the agent and no power of substitution is given that the agent must act in person, and the principal is not bound by the sub-agent.

— Hon. Carr McNatt, Judge. (1) The contract at all times contemplated that the person occupying’ the status of wife of Martin Dieterich should any such person survive him, should take the benefits. And none of the interpleaders bore that relation or occupied that status. Order of Railway Conductors v. Koster, 55 Mo. App. 196. (2) Martin Dieterich is conclusively presumed to have known the by-laws of the association. Harvey v. Grand Lodge, 50 Mo.

— Hon. G. H. Skinker, Judge. (1) Nothing will be presumed to be within the jurisdiction of inferior courts and tribunals and their jurisdiction must appear by the record in all cases where it is directly attacked.

— Eon. David E. Blair, Judge. (1) We’have hut one form of action in this state for actions at law and in equity. Gawtry v. Adams, 10 Mo. App. 32.

— Row. Carr McNatt, Judge. (1) The court-erred in refusing to follow the mandate of the Supreme Court, when it directed that further proceedings be had in the circuit court in conformity with the opinion of this court herein delivered. Nowhere in the opinion is there any authority for the trial court to sustain a demurrer, but the opinion expressly states to the contrary and is the law of this case.

— Hon. Carr McNatt, Judge. (1) The verdict in this case was grossly against the evidence. There was no. creditable evidence to support it. The court should have granted a new trial on that ground. The discretion of the trial court is not absolute. This court will interfere with such discretion if it appears to have been unwisely exercised. Gould v. St. John, 207 Mo. 631. (2) The court erred by refusing to give instruction “G” offered by plaintiff.

— Hon. Joseph D. Perkins, Judge. (1) This case originated in the justice court, and the defendant made no answer in the justice court or the circuit court. Therefore the pleadings in this ca.se a.re as though a general denial had been filed. Barr v. Teke, 147 Mo. App. 256. (2) Accord and satisfaction is an affirmative defense and must be pleaded in order to be available as a defense. Trimble v. Railroad, 199 Mo. 44; Bank v. Stewart, 136 Mo. App. 34.

— Row. Alfred Page, Judge. (1) The mare was bought for a specific purpose. If she was not capable either of work or of breeding, there was an entire failure of consideration and defendant was entitled to rescind. Birdsall Co. v. Keyes, 99 Mo. App. 45-8; Conings v. Leedy, 114 Mo. 478; Buss v. Glass Co., 123 S. W. 949 ; Moore v. Koger, 113 Mo. App. 423, 87 S. W. 604; Barr v. Baker, 9 Mo. 494; Brown v. Weldon, 9-9 Mo. 564; Young v. Yan N-atta, 113 Mo.

<p>1. CRIMINAL LAW: Unlawfully Herding Cattle: Sufficiency of Evidence. In a prosecution of defendant on an information charging him with unlawfully driving cattle from one county to another for the purpose of herding and grazing them upon unimproved and unenclosed lands in the latter county, the evidence is examined and held sufficient to justify a conviction. Held, further, that the instructions given in the case were proper and amply sustained by the evidence.</p> <p>2. STATUTES: Contruction. Courts in construing statutes cannot depart from their unambiguous language.</p>

Hugh Dabbs, Judge. (1) The elements of an estoppel in pais are wanting in the case at bar.. The first essential is a full knowledge of all the facts and of the party’s rights. Herman on Estoppel, 452; Taylor v. Zepp, 14 Mo. 489; Terrill v. Boulware, 24 Mo. 257; Burke v. Adams, 80 Mo. 514; Acton v. Dooley, 74 Mo. 69; G-aresche v. Ins. Co., 146 Mo. 451; Burrill v. Ins. Co., 211 Mo. 158; Tennent v. Ins. Co., 133 Mo. App. 361.

— Ho». W. N. Evans, Judge. (1) Plaintiff was incompetent under our law to testify to any fact concerning this transaction, because of the death of Geo. ~W. Neily, with whom plaintiff had all the transactions concerning the matters sued on in this action. Crow v. Crow, 124 Mo. App. 120; Williams, Admr. v. Perkins, 83 Mo. 379; Bntts, Admr. v. Phelps, 79 Mo. 302. (2) After excluding plaintiff’s testimony there is absolutely no- evidence left to support the verdict of the court.

<p>Appeal from Jackson Circuit Court. — Hon. James E. Goodrich, Judge.</p> <p>(1) The petition did not state facts sufficient to constitute a cause of action. Gabriel v. Railway, 130 Mo. App. 551; Earning’ v. Railway, 157 Mo. 508; Sherman v. Rockwood, 26 Mo. App. 403; England v. Den-ham, 93 Mo. App. 13-19; Adams v. Trigg, 37 Mo. 141; Darrett v. Donnelly, 38 Mo. 492; Haley v. Railroad, 197 Mo. 13; White v. Railroad, 202 Mo. 539; Jordon v. Transit Co., 202 Mo. 426. (2) The court erred in giving appellant’s instruction in the nature of a demurrer to the evidence offered at the close of the plaintiff’s evidence and again at the close of all the evidence. Grout v. Railway, 125 Mo. App. 552; Haley v. Railroad 197 Mo. 25; Riñe v. Railway, 88 Mo. 400; Ross v. Railway, 112 S. W. 91. (3) The court erred in giving instruction marked P-1%. Railway v. Trego, 101 S. W. 256; Railway v. McCorkle, 140' Ind. 613, 40 N. E. 62; Railway v. Jones, 33 Ind. App. 333, 71 N. E. 275,</p> <p>(1) The petition states facts sufficient to constitute a cause of action and the allegations of negligence are not inconsistent. Heinzle v. Railway, 213 Mo. 102; Nipper v. Railway, 145 Mo. App. 224; MeQuade v. Railway, 200 Mo. 150; Thompson v. Livery Company, 214 Mo. 487; Blyston-Spencer v. Railroad, 152 Mo. App. 118'; Sharp v. Railway, 213 Mo. 525; Childres v. Railroad, 141 Mo. App. 685'. (2) The case was tried on the humanitarian doctrine and was submitted to the jury on that theory alone, and by being submitted to the jury on that theory alone by plaintiff’s instructions all other charges of negligence and theories were eliminated. White v. Railroad, 20*2 Mo. 561. (3) The court did not err in refusing to give appellant’s instruction' in the nature of a demurrer offered at the close of plaintiff’s evidence and again at the close of all the evidence. Behen v. Transit Co., 186 Mo. 441; McQuade v. Railroad, 200 Mó. 156; Nipper v. Railroad, 145 Mo. 227; Waddell v. Railroad, 213 Mo. 16. (4) Plaintiff’s instruction marked P-1% was a correct declaration of the law. Nipper v. Railroad, 145 Mo. 228; Waddell v. Railroad, 213 Mo. App. 16; Zander v. Railroad, 206' Mo. 464; Spencer v. Transit Company, 221 Mo. 310. (5) The allegation in plaintiff’s petition that defendant’s motorman failed to have the car under control when it ran over plaintiff and as it approached plaintiff, did not mean when properly construed, namely when construed “liberally with a view of substantial justice between the parties, ’ ’ does not mean that the car was running away or was beyond the control of the motorman. R. S. 1909, section 1831; Cornovski v. T. Co., 207 Mo. 263.; Cyrton v. T. Co., 205 Mo. 692; Meeker v.'Railway, 178 Mo. 173.</p>

<p>1. NEGLIGENCE: Street Railways: Personal Injuries. Plaintiff sued for damages for injuries received when thrown from the rear platform of an electric street car, by the sudden starting of the car as she was about to alight therefrom at a regular stopping place. The heel of her shoe caught on a projection in the metal plate on the board step and tripped her and the heel of the shoe was torn off. Held that plaintiff was entitled to go to the jury on both the issue of the sudden starting of the car and of negligence in operating the car with a defective step.</p> <p>2. -: -: Instruction. An instruction is not erroneous where the only reasonable meaning of the word “thereon” in a clause “the heel of one of her shoes caught thereon” is that the word refers to the projection and not to the step.</p> <p>3. -: -: Damages. A verdict for twenty-five hundred dollars is not too much for continuously painful, permanent and partially disabling injuries.</p>

— Ho». O. A. Lucas, Judge. (1) The testimony admitted on behalf of the defense, tending to establish a collateral or contemporary agreement, in connection with the giving of the note in question, constituted no defense to this action, as it amounted to an attempt to contradict or vary the terms of a written agreement by parol testimony. Gardner v. Mathews, 81 Mo. 627; Pearson v. Carson, 69 Mo. 550'; Life Ass ’n v. Cravens, 6-0 Mo. 388; Harwood v. Brown et al., 23 Mo. 69; Ins.

— Bern. David H. Harris, Judge. (1) The wife has such an interest in the homestead that it cannot be mortgaged or sold by the husband without she joins in the mortgage or deed. 2 B. S. 1909, sec. 6704; Bushnell v. Loomis, 234 Mo. 371. (2) The wife, by joining in a mortgage or cleed of trust only surrenders her homestead rights to the extent necessary for the purposes of the mortgage. The homestead remains in the equity of redemption.

<p>Appeal from Jackson Circuit Court. — Ho». O. A. Lucas, Judge.</p>

. Appeal from Boone Circuit Court. — Now. D. E. Earns, Judge. (1) The original petition stated no cause of action, either in tort or in contract. While it alleged that defendant “undertook and agreed” it alleged no consideration, and it alleged no breach of contract; it simply alleged that the shipment was “by the negligence of defendant . . . delayed and not delivered within a reasonable time.” This did not constitute a cause of action in contract.

— Eon. A, E. Waller, Judge. (1) Where a parent turns property over to a child, the presumption is that it is an advancement or a gift, rather than a sale. Trust Co. v. Rudolph, 136 Mo. 169 ; Gerding v. Walter, 29 Mo. 426: (2) It being established that the conveyance was a gift, it follows that it must be held as a gift, pure and simple, since advancements are required to be brought into hotchpot only in cases of intestacy.

- — Hon, H. B. Shain, Judge. (1) In handing defendant’s wire deceased Was a trespasser, and defendant could be held liable only for willfully injuring him. There is no question of willful injury in this case. Smith v. Packing Co., 8-2 Mo. App. 9 ,- Sias v. Railway, 179 Mass. 343; New Tork Co. v. Speicher, 39 Atl. (N. J.) 661.

— No». D. N. Harris, Judge. (1) Upon the uncontradicted evidence in this' case, the trial court should have instructed a verdict for the defendant, upon the grounds that the contract of sale was within the Statute of Frauds. R. S. 1909‘, sec. 2784; Kerby v. Johnson, 22 Mo. 354; H'arvey v. Butchers, 39 Mo. 212; Delventhal v. Jones, 53 Mo. 460; Lovelace v. Stewart, 23 Mo. 384; Sotham v. Weber, 116 Mo. App. 104; Eichberg v. Paper Co., 119 Mo. App. 262; Shelton v. Sires, 96 Mo.

— No». Thos. J. Seehorn, Judge. (1) Defendant’s demurrer to the evidence should have been sustained because there was no evidence that the city constructed the meter into which plaintiff fell and there is no evidence that the city had actual knowledgeof the alleged defect or that it had existed for such a length, of time that it should have known of it so that it could have repaired it.

<p>BUILDING CONTRACT: Bond: Husband and Wife: Liens. If a husband, gratuitously, or for a consideration, undertakes to construct improvements on his wife’s property by written agreement with a contractor who gives him a bond with surety to indemnify him against any pecuniary loss he may sustain by reason of the contractor failing to perform, and the contractor suffers mechanics’ liens and judgments to be placed against the property, which the husband discharges, the husband has suffered a pecuniary loss and may maintain an action on the bond against the surety.</p>

<p>1. ATTACHMENT: Appeal and Error: Order Quashing Attachment: Premature Appeal. Plaintiff instituted a suit by attachment, alleging in bis affidavit as ground therefor, that defendant (a corporation) is a non-resident of the state of Missouri. The sheriff attached certain property belonging to the defendant, but failed to get service on the defendant. The defendant filed a motion to quash the writ of attachment, which, said motion was sustained, and upon the trial court refusing to permit plaintiff to file an amended affidavit for attachment, the plaintiff appealed. Held, that plaintiff’s appeal would not lie'; that the order quashing the attachment was not a final judgment; that the original suit remained pending and that plaintiff could have perfected his appeal only after a final judgment had been entered, disposing of the rights of all the parties to the suit in the attachment proceeding and in the original suit itself.</p> <p>2. APPEAL AND ERROR: Attachment: Order Quashing Attachment: Premature Appeal. The order of the court on a motion to quash the writ of attachment is -not a final disposition of the entire case and it' is not a final judgment from which an appeal can be taken.</p> <p>3. JUDGMENTS; Final Judgment: Appeal and Error. There can be but one final judgment in a cause and such final judgment cannot be composed of fragments. It must be such a • judgment as will relieve the defendant from further appearance as to the entire cause.</p> <p>4. ACTIONS: Commencement of Suit. The filing of a petition in a court of record, or a statement of account before a court not of record, and suing out process therein shall be taken and deemed the commencement of a suit.</p> <p>5. JURISDICTION. Questions of jurisdiction assert themselves at any stage of a proceeding and in any court and are considered sua sponte.</p>

<p>1. EVIDENCE: Records Introducing by Page Number: Failing to Read: Local Option Law Violation. In the prosecution of defendant for violating the Local Option Law, the prosecuting attorney called as a witness the county clerk, who had with him one of the records of the county court, and offered in evidence, by page number, certain parts' of the record, for the purpose of showing the adoption of the law, the notice and the result, etc. But the record was not read to the trial court, nor was it again referred to in any way. No objection of any kind was made to this offer, nor was any request made that the record he read to the court. Held, that the record was sufficiently in evidence to justify the trial court’s finding that the Local Option Law had been adopted.</p> <p>2. LOCAL OPTION LAW VIOLATIONS: Evidence Showing Adoption of Law. The question of whether the Local Option Law has been adopted in the county is one of law for the court and the adoption thereof is established prima facie by tbe state by the production of a certified copy of the result of the election, as spread upon the records of the county court in compliance with that law, and proof that the requisite subsequent publication of the result was made.</p> <p>3. -: -: -: Appeal and Error: Preserving Evidence in Record. Appellant was tried and convicted for violating the Local Option Law. On appeal he raised the objection for the first time that the prosecuting attorney in his attempt to show that the Local Option Law had been adopted, introduced the record of the county court by designating certain pages upon which the various orders of the court relating to the adoption of the law were found, but did not read said orders and the same were not preserved in the record. Held, that it was not essential that the orders of the county court be read to the judge; that the material question was whether the Local Option Law had in fact been adopted and if appellant desired to have that question reviewed pn appeal, he should have preserved the orders of the county court in the record.</p> <p>4. APPEAL AND ERROR: Bill of Exceptions: Presumption as to Verity. A bill of exceptions when signed by the judge and duly filed becomes a part of the record and must be accepted by the appellate court as a verity until corrected in the manner provided by law.</p> <p>5. -: Appellant’s Burden: Presumption That Trial Court Discharges Duty. The burden of proof in the appellate court is upon the appellant to show by the record that prejudicial error was committed, as the trial-court is presumed to have discharged its duty until the contrary is made to appear.</p>

— Hon. L. B. Woodside, Judge. (1) Annual crops raised by yearly labor and cultivation are to be regarded as personal property, independent of and distinct from tbe land, and capable of being sold by oral contract, and sucb contract is not within the Statute of Frauds. Hence the grantor of land can make a valid reservation of said crop by parol contract and without incorporating such reservation in his deed.

— Hon. David E. Blair, Judge. (1) The demurrer to the evidence should have been sustained-because, considering plaintiff’s knowledge and capacity it conclusively appears he knew the danger of his act in voluntarily hopping the car and how to avoid it, and he was, therefore guilty of contributory negligence as a matter of law.

— Hon. L. B. Woodside, Judge. (1) The second count charged acts constituting different offences.. They may he so charged in separate counts, if the acts charged are not repugnant, but not in the same count. State v. Nichols, 124 Mo. App. 330; State v. Fox, 148 Mo. 517; State v. Blakely, 184 Mo. 187. (2) The information charged “keeping, storing for and delivering to” the witness Mattison.

— How. Guy D. Kirby, Judge. (1) Plaintiff cannot sue upon one cause of action and recover upon another. The finding of facts and the undisputed evidence are outside the issue taken by the petition, and so is the judgment, and it is therefore erroneous. Schweider v. Patton, 175' Mo. 684; Laclede Gas Co. v. Iron Works, 169 Mo. 137; Cole v. Armour, 154 Mo. 351; Neals v. Ford, 167 Mo. 495; Tegeler v. Mitchell, 60 Mo.

<p>Appeal from Polk Circuit Court.— IIon. C. II. Skinker, Judge.</p>

— Hon. John T. Moore, Judge. (1) The letter written by defendant to plaintiff of date July 22, 1908, and at a time when the good in question were in defendants’ possession and from which defendants were selling, is sufficient to show a promise to pay and a contract for the goods, regardless of the first difference. 2 Beach on Contracts, p. 575, sec. 61; Pub. C'o. v. Emerson, 64 Mo. App. 662; Harp v. Assembly, 127 Mo. App. 195'; 17 Cyc. 406, 411; 16 Cyc. 945.

<p>Appeal from Texas Circuit Court. — Hon. L. B. Woodside, Judge.</p>

— Hon. D. E. Blair, Judge. (1) The holder of negotiable-paper as collateral for a pre-existing debt, having given no consideration for it, holds it liable to the equity existing between the original parties. Napa Yalley Wine Co. v. Rinehart, 42 Mo. App. 172; Loewen v. Forsee, 137 Mo. 29; Wright v. Trust Co., 144 Mo. App. 648.

— Hon. L. B. Woodside, Judge. (1) The evidence was not sufficient to carry the question to the jury of whether the fire originated at defendant’s brush pile. Kenny v. Railroad, 70 Mo. 248; Sheldon v. Railroad, 29 Barb. 228; Peck v. Railroad, 31 Mo. App. 123; Peffer v. Railroad, 98 Mo. App. 291; Manning v. Railroad, 137 Mo.

— Hon. Alfred Page, Judge. (1) The trial court erred in refusing to admit evidence showing the prosecutrix’s interest in this case. R, S. 1909, secs. 6354, 6230; R. S. 1899, secs. 2637, 4652; Hess v. Bakery, 210 Mo. 57; State v. Barling, 202 Mo. 170; State v. Thornhill, 177 Mo. 691; State -v. Nelson, 166 Mo. 191; 3 Eney. of Evidence, 771.

— Hon. L. B. Woodside, Judge. (1) Different offenses may be charged in separate counts, if the acts charged are not repugnant, but not in the same count. State v. Nichols, 124 Mo. App. 330; State v. Rosenslatt, 185' Mo. 114; State v. Blakely, 184 Mo. 189; State v; Fox, 148 Mo. 514. The indictment charged “keeping, storing and delivering too” the witness Organ. The acts of keeping and storing for are inconsistent with the act of delivering to.

— Hon. L. B. Woodside, Judge. (1) Where a broker employed to negotiate a loan obtains one ready and willing to make the loan and it turns out that the title to the real estate is imperfect, so that the loan is not made, he is entitled to his commission; also where the borrower changed his mind and refused to accept the loan. Fitch on Real Estate Agency, 113.

— Hon. W. N. Evans, Judge. (1) The court erred in that it did not render judgment for the plaintiff, because upon the whole record the judgment should have been for the plaintiff. Bank v. Burkham, 32 Mich. 328; Chambers v. Miller, 13 C. B. (N. S.) 125; Andressen v. Bank, 2 Fed. 122; Savings Assn. v. Kehlor, 7 Mo. App. 158; Behring v. Somerville, 63 N. J. L. 568; Pegan v. Railroad, 9' ND. -30; Levy v. Terwilliger, 10 Daly (N. Y.) 194; Boaz v. Updegrove, 5 Pa.

— Hon. L. B. Woodside, Judge. (1) It is elementary that a justice court is a court of inferior and limited jurisdiction not proceeding according to the course of the common law, and no presumptions are indulged in their favor.

— Hon. Carr McNait, Judge. (1) The word housekeeper and the word “head of family” are used interchangeably by the statute, so as to secure a broad construction of the statement in favor of any one who has dependent persons living with him. Uppenheimer v. Meyers, 99 Ya. 582, 39 S. E. 218; 12 Am. and Eng. Ency. Law (2 Ed.), 89; Ridenour Co. v. Monroe, 142 Mo. 165.

— Hon. Guy D. Kirby, Judge. (1) Appellant having paid commission in making the sale to respondent, and incurring expense in párt performance of the contract, before its repudiation by respondent; the law gives appellant a remedy by suit, to recover the money so expended and the value of labor bestowed in part performance of the contract, plus the profits that would have accrued had not the performance of the contract been prevented by the respondent. 1 Sedgwick on Damages,…

— Hon. W. N. Evans, Judge. (1) Everything was done to make the contract binding, and defendant cannot arbitrarily or through unknown reasons to plaintiff refuse to abide by the sale or note, or later require other or further security. Brown v. Smith, .113 Mo. App. 6G. (2) The parties had agreed upon the terms of the sale and contract when the property was set out and turned over to plaintiff and the sale was complied with and became effective. Hudson v. Rogers, 121 Mo.

<p>Error to Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.</p>

<p>Appeal from Livingston Circuit Court. — Hon. Arch B. Davis, Judge.</p>

<p>ABSTRACT: Appeal from Justice Court. Where a case is begun before a justice of the peace and neither the abstract nor the transcript shows that any appeal was taken to the circuit court; or that any papers relating to the case were ever filed in the latter court, the appeal to the'court of appeals will be dismissed.</p>

<p>Error to Jackson Circuit Court. — Hon. John G. Park, Judge.</p>

<p>1. USURY: Pledge: Conversion. If an usurious loan is secured by the pledge of personal property, the. pledge is void and may be recovered in replevin, or damages for conversion may be had.</p> <p>2. -: -: -. While usury does not render the debt void, and the latter may be recovered credited by the usury paid, yet the pledge or chattel mortgage securing the loan is void under the statute.</p>

<p>1. WATERCOURSES: Change of Course: Riparian Rights. If an artificial channel is substituted for a natural one, or is created under such circumstances as indicate that it is to be permanent and to be a watercourse the same as though it was created by nature, riparian rights may attach to it.</p> <p>'2. -: -: -: Obstruction. In order to make the rule governing the obstruction of watercourses applicable in any case, a watercourse must be found to exist. But if a watercourse, in fact, exists, the fact that it is not an ancient one will not confer a right to obstruct it. And the rule is not changed by the fact that the water was flowing in an artificial channel.</p> <p>3. -: -: -. If, by common consent, a ditch was dug as a neighborhood drain and has remained open as a watercourse for a series of years, it ought to be governed by the same rules that apply to the cases of other watercourses.</p> <p>4. -: -: -: -. Although a watercourse was artificially constructed, it may be rightfully located and maintained. Everybody whose property was liable to be affected by setting back the water had a right to exemption from disturbance by an interference with its flow. It is immaterial whether the plaintiff had acquired rights by prescription. The liability of the, defendant in reference to obstructions caused by it which would naturally injure the plaintiff’s property was the same as it would have been if the parties had been riparian proprietors upon a natural watercourse.</p> <p>5. -: -: -: -. A railway company dug a ditch along its right of way to a point within fifteen feet of a creek. In the course of years this space was-washed out and the principal part of the water flowing in the creek thence afterwards passed through the ditch. Then the railway company dammed the ditch where it connected with the creek, but the water still found its way into the ditch by cutting around the dam. The railway company then built an extension of the dam. The diversion of the water into the ditch caused the bed of the creek below the ditch to partially fill up and when the dam was built forcing the water -back into the creek, its outflow was obstructed and it backed up on plaintiff’s crops and destroyed them. It was held that the railway • company was liable in damages.</p>

<p>OVERDRAFT: Note: Consideration. R, as secretary of a railway company, by an understanding with a bank gave the company’s check on a hank where it had no funds, and the bank paid it. Afterwards R and another, at the request of the bank, gave their note to it for the amount of the check; but there was no agreement that the note settled and discharged the bank’s claim against the railway company. Held, that the note was without consideration.</p>

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

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

— Hon. Jos. A. Guthrie, Judge. (1) The court erred in overruling tlie demurrer to the evidence offered by tbe appellant at the close of plaintiffs’ evidence, and at tbe close of all tbe evidence, for tbe reason that tbe servants, agents and employees of appellant at tbe time tbe alleged wrongs were committed were not acting witbin tbe scope'of their authority, or in tbe furtherance of their master’s business, (a) Tbe constable was not tbe agent and servant of tbe appellant…

— Hon. Thos. J. Seehorn, Judge. (1) After default and possession taken by mortgagee be is not bound to restore the property on a tender. Mortgagor is left to Ms remedy in equity. Hunt on Tender, sec. 375, p. 418. (2) When, after default, mortgagee asserts his rights by taking possession, a tender not kept good did not bave the effect of discharging the lien and revesting the title in mortgagor. Smith v. Philips, 47 Wis. 202; Jackson v. Cunningham, 28- Mo.

— Hon. Herman Brimback, Judge. (1) Defendant’s demurrer to the evidence should have been sustained on two grounds, (a) because there was no evidence that the alley which only existed on paper had ever been thrown open to the public. Downend v. Kansas City, 156 Mo. 60; Ely v. St. Louis, 181 Mo. 724. (b) Because plaintiff on his own evidence wes guilty of contributory negligence — if the alley in question was a public highway.

— Hon. B. B. Middlebrook, Judge. (1) The court erred in admitting any evidence under the petition herein. R. S. 1899', sec. 1794; Behen & Transit C'o., 186 Mo. 430; Deolshagen v. Railroad, 186 Mo. 258; Rodgers v. Ins. Co., 186 Mo. 255; Gabriel v. Railway, 130 Mo. App. 651. (2) The court erred in overruling the demurrer interposed at the close of the case, on the ground that under the pleadings and the evidence there could be no recovery.

— Hon. D. H. Harris, Judge. (1) The second count of plaintiff’s petition does not state facts sufficient to constitute a cause of action. Plaintiff must allege and prove that the words charged were used in an actionable sense and that the hearers so understood them. Unterberger v. Scharff, 51 Mo. App. 102; Walker v. Hoeffner, 54 Mo. App. 554; Lewis v. Humphries, 64 Mo. App-. 466.

— Hon. Jas. E. Goodrich, Judge. (1) The court erred in overruling the defendant’s demurrer to the evidence.

— Hon. Wm. O. Thomas, Judge. (1) The court erred in admitting any evidence under the petition herein. The petition does not state facts sufficient to constitute a cause of action. R. S. 1899, sec. 1794; Behen v. Transit Co., 186 Mo. 430; Drolshagen v. Railroad, 186 Mo. 258; Rodgers v. Ins. Co., 186 Mo. 255; Gabriel v. Railroad, 130 Mo. App. 651.

<p>1. ASSAULT AND BATTERY: Damages: Tort of Agent: Scope of Employment. Plaintiff sued for damages for an assault upon him by the station agent of defendant. Plaintiff ordered a car in which to ship wheat, but refused to use the one set out for him because of its .condition, and went to the next station and induced the conductor of a local freight train to bring down another car. When it. arrived plaintiff and defendant’s agent got into an altercation on the depot platform concerning the use of the new car and payment for the one first ordered. Plaintiff, an old man, seventy-six years of age, used abusive language to the agent and the latter struck him, knocking him down and injuring him. Held, that the act of the agent was committed in the performance of the particular business entrusted to him by the master, and while acting within the pcope of his authority, and the master is liable.</p> <p>2. -: Excessive Verdict. The verdict is not excessive under all the facts and circumstances shown in evidence.</p> <p>3. -: Pleading: Demurrer to Petition. The action of a trial court in overruling a demurrer to the petition cannot be raised on appeal where the defendant does not stand on the demurrer but pleads over and proceeds to trial.</p>

— No». Walter A. Powell, Judge. (1) The court erred in refusing the defendant’s declaration of law number one. The petition, answer and reply contain absolutely nothing in the nature of a plea of waiver, estoppel or innocent purchaser. In order to be available, this defense must be pleaded. Trust Co. v. Real Estate Co., 82 Mo. App. 260'; H’olvesworth v. Shannon, 113 Mo. 524.

<p>Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.</p> <p>The charter of 1908, section 5, article 2, is inconsistent with ordinance of Kansas City, No. 35479 and therefore repeals it. Smith v. State, 14 Mo. 147 ,• State v. Roller, 77 Mo. 120; Gunn v. Jones, 115 Mo. App. 597; State v. Crane, 202 Mo. 54; United States v. Fisher, 109 U. S. 143; District of Columbia v. Hutton, 143 U. S. 18; Camden v. Yarney, 63 N. J. L. 325.</p> <p>The charter of 1908, section 5, article 2, in so far as this relator is concerned, is not inconsistent with ordinance of Kansas City No. 35479' and is, therefore, not repealed, but still in force. Section 1, art. 18, p. 478, Charter of Kansas City 1908; 29 Cyc. 1427; Hall v. Gillham, 187 Mo. 405; State ex rel. v. Wilder, 197 Mo. 35; State ex rel. v. Wells, 210 Mo. 620.</p>

<p>1. NEGLIGENCE: Street Railways: Driving on Track. Plaintiff sued for damages for injuries received when an electric street car struck the hack which he was driving along a public street, at night. He was driving westward on the street car track and the hack was struck from behind. There was sufficient light for him to have seen a man a block away. The motorman could have seen the hack in time to have avoided the collision by the exercise of reasonable diligence. Held, that the ease was properly submitted to the jury.</p> <p>2. -:-: Humanitarian Doctrine: Pleading. Although a petition alleges that plaintiff was in the exercise of ordinary care recovery may be had under the humanitarian or last chance doctrine, where it also contains the allegation that the defendant was guilty of negligence in striking plaintiff while it could have, by the exercise of ordinary care, avoided so doing. There is nothing inconsistent in the two allegations.</p> <p>3. -: Humanitarian Doctrine: Approximate Cause. The humanitarian theory is a statement of nothing more or less than that of approximate cause, which must exist in every case in order to render the defendant liable for negligence.</p>

— Eon. O. A. Lucas, Judge. (1) The court erred in refusing to give defendant’s peremptory instruction in the nature of a demurrer to the evidence at the close of plaintiff’s evidence and at the close of the whole case. If there is no evidence tending to establish the cause of action alleged in the petition, the court has but one duty to perform — and to so declare by instruction.

<p>Appeal from Jackson Circuit Court. — Hon. James H. Slover, Judge.</p>

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

<p>Appeal from Jackson Circuit Court. — How. W. O. Thomas, Judge.</p>

<p>1. LIFE INSURANCE: Old Line or Assessment: Contracts. The character of a life insurance policy is determined by the nature of the contract it expresses. If the payments to be made by the insured are unalterably fixed by the contract, it is assessment insurance; and where the premium is fixed and unalterable and the liability incurred by the company is also fixed, definite and unchangeable, it is an old line policy.</p> <p>2. -: -: Ultra Vires. Insurance companies cannot ma’squerade as assessment companies and then repudiate their obligations under old line contracts made by them, after collecting and retaining the premiums, on the ground that they had no authority to make such contracts.</p> <p>3. -: -: -: Raising Premium. Where the face of an life insurance policy unalterably fixes the amount of the benefit and also the amount and time of payment of the premiums and gives the insurer no express authority to raise the rate of premium, any attempt to do so is a violation of the terms of the contract.</p> <p>4. -: -: Tender of Premium. Where an attempt is made to raise the premium to he paid on an old line life insurance policy and the insurer refuses to accept the fixed premium, a tender of amount due’ under the contract is sufficient to preserve the rights of the insured, so long as the insurer persists in its wrongful course.</p>

<p>1. LOCAL OPTION: Intoxicating Liquor. Defendant was indicted for selling a pint of whiskey to a negro in the city of Fulton where the Local Option Law had been adopted. The evidence of the state is held to be sufficient to sustain a verdict of guilty.</p> <p>2. -:-: Indictment. The omission in an indictment to refer to the latest revision of the statutes cannot be regarded as a failure to charge an offense against the law.</p> <p>3. -: -: -. The endorsement and signature of the foreman of grand jury need not appear at the end -of each count of an indictment.</p> <p>4. JURY: Remarks of Court: Change of Venue. Where an application is made for a change of venue in good faith and for an honest purpose, it is prejudicial error for the judge, in granting the change Qf venue, to severely criticise the defendant in the presence of the jurors who were to try him.</p>

— Hon. Joseph A. Guthrie, Judge. (1) The judgment was sufficient both as to form and substance to uphold each and every part of said execution. Freeman on Judgments (3 Ed.), se&s. 45’, 47 and 50; Church v. Crossman, 41 Iowa 379; Lewis v. Watrus, 7 Neb. 477; Barrett v. Garragan, 16 Iowa 47; Fish v. Emerson, 44 N. T. 376; Towles v. Doyle, 16 Iowa 534; Finnagan v. Manchester, 12 Iowa 521; House v. Camp, 32 Ala. 541; 19 Cyc. 1178.

— Eon. Walter A. Powell, Judge. (1) Demnrrer to plaintiff’s evidence should have been sustained, (a) Because plaintiff was clearly guilty of contributory negligence. Renfro v. Railroad, 86 Mo. 302; Van CaxRp v. Railroad, 141 Mo. App. 344; Moore v. Railroad, 146 Mo. 572; Whiteley v. Railro.ad, 109 Mo. App. 123; Montgomery v. Railroad, 109 Mo. App. 88; Cahill v. Railroad, 105’ Mo. 393.

— Hon. W. O. Thomas, Judge. (1) The corporation had no legal existence and was unlawful because the incorporators did not comply with the provisions of article 9, ch. 33, R. S. 1909, relating to co-operative companies, under which it attempted to organize and do business, and therefore, it had no authority to issue stock or to transact any business; and the stock so issued or other business transacted by it was void.

— How. H. B. Slain, Judge. (1) Plaintiff’s own evidence clearly shows him to he guilty of such contributory negligence as will bar a recovery. Wheat v. St. Louis, 179 Mo. 572; Sindlinger v. Kansas City, 126 Mo. 315; Wiggins v. St. Louis, 135 Mo! 565; Cohn v. Kansas City, 108' Mo. 387; Diamond v. Kansas City, 120 Mo. App. 185; Boyd v. Springfield, 6-2 Mo. App. 458; Lowe v. Railroad, 145 Mo. App. 255.

— Eon. R. B. Middlebrooh, Judge. (1) The second count in the plaintiff’s petition is not a count on quantum meruit and a reading of the second count shows that in it the plaintiff charges that it sold and delivered to the defendants a carload of hottle wrappers and pads at and for the price and sum of $4.75 per thousand and that the defendants promised- and agreed to pay that price for the pads and that they failed and refused to do so.

— Hon. R. B. Middlebrooh, Judge. (1) Plaintiff’s petition failed to state a canse of action. Stanley v. Union Depot Company, 114 Mo. 606. (2) The court erred in .overruling defendant Frank E. Lott’s demurrer at the close of plaintiff’s testimony. Wolf v. Traction Co., 119 Ill. App. 481; Railroad v. Rood, (111 Sup. Ct.), 45 N. E. 238; Black v. Railroad, 187 Mass. 172, 72 N. E. 970; Potts v. Railroad, 33 Fed. 610; Lohner v. Railroad, 116 Ill.

— Hon. Walter A. Powell, Judge. (1)' The cause of action, if any, for .the cancellation of defendant’s taxbill can not be stated for the first time in a so-called reply. 'Where as here the nature of defendant’s claim is not alleged in the petition to be “unknown” to plaintiff but is distinctly stated, without intimation, even that it is invalid. Rhodes v. Land & Lumber Co., 105 Mo. App. 279; Gage v. Cant-well, 191 Mo. 698.

— Now. B. G. Thurman, Judge. (1) These provisions of the statute are mandatory. Ballots without numbers were counted in the 5th ward, and the ballots in the 5th ward were not sealed up in a package, but were returned loose on a string in an unfastened box, and should not have been counted. West v. Ross, 53 Mo. 350; Ledbetter v. Hull, 62 Mo. 422; Donald v. Lee, 101 Mo. App. 191; McKay v. Minor, 154 Mo. 608. (2) The law governing special elections must be strictly followed.

— Hon. James D. Barnett, Judge. (1) The court erred in refusing to instruct a verdict for the defendant both at the close of the plaintiff’s evidence and at the close of all the evidence.

— Hon. James D. Barnett, Judge. (1) The policy provided: “Proofs of death under this policy shall he made upon blanks to be furnished by the company and shall contain answers to each question propounded to the claimant, physician and other persons.

<p>1. FRATERNAL BENEFICIARY ASSOCIATIONS: Action on Benefit Certificate: Affirmative Defenses: Burden of Proof: Trial Practice. In an action on a benefit certificate issued by a fraternal beneficiary association, tbe burden of proof is on the defendant to establish an affirmative defense that insured had become sick after making her application and before the delivery of the certificate, and had not been subjected to another examination, thereby rendering the certificate void, pursuant to ' an agreement contained 'in the application for insurance.</p> <p>2. TRIAL PRACTICE: Uncontradicted Evidence: Directing Verdict. The trial court-has no right to direct a verdict in favor of the party having the burden of proof, although the testimony given on his behalf is uncontradicted, where the issue of fact is controverted and the proof consists of oral testimony, not admitted to be true.</p> <p>3. -: -: Credibility of Witnesses: Province of Jury. The credibility of the witnesses and the weight of the evidence are, in the first place, questions for the jury, and the jury may reject uncontradicted testimony as untrue, and return a verdict against it.</p> <p>4. -: -: Directing Verdict: Weight of Evidence. If plaintiff has made a prima facie case, the fact that an affirmative defense is established by uncontradicted evidence' would not warrant the trial court in directing a verdict for defendant on the ground that it would feel compelled to set aside a verdict 'for plaintiff as being against the weight of the evidence.</p> <p>5. NEW TRIAL: Verdict Against Weight of Evidence: Only One New Trial. The court may set aside a verdict on the ground it is against the weight of the evidence and award the losing party a new trial, but if, on the new trial, the same party should again prevail, the trial court would be powerless to interfere on the same ground, under section 2023, Revised Statutes 1909.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The verdict of the jury in finding against plaintiff’s right to a lien was rendered' in disregard of the uncontradicted evidence. Hewitt v. Doherty, 25' Mo. App. 326; Hearn v. Keith, 63 Mo. 84; Hallan v. Railroad, 62 Mo. 480'; Lionberger v. Pohlman, 16 Mo. App. 392; Ackley v. Stehlin, 56- Mo. 558. (1) The verdict of the jury follows and is responsive to the first instruction of the court.