Volume 162 — Missouri Appeal Reports

Louis City Circuit Court.— Hon. William M. Kinsey, Judge. (1) The agreement between plaintiff and Barrett to keep replenished the stock of goods upon which paintiff had a mortgage was in every respect legal and was undoubtedly good as between plaintiff and Barrett and as between them plaintiff’s mortgage covered the after-acquired stock. McDonald v. Hoover, 142 Mo. 482; Mfg. Co. v. Supply Co., 149 Mo. 538.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. S-tatemestt. — This appeal involves the right of the plaintiff to recover the reasonable value of two items of “extra” work done by the plaintiff at the instance of the defendant. The plaintiff had contracted to do certain earth excavating work for a definite sum and the defendant insists that the so-called “extra” work should have been done under that contract without additional compensation.

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

Louis City Circuit Court.— IIon, George H. Williams, Judge. (1) A demurrer to the evidence admits as true every fact which the testimony tends to prove, and’ every inference which may be reasonably drawn therefrom. .Kinlen v. Railroad, 216 Mo. 145, 155.

<p>1. CONTRACTS: Joint Adventure: Division of Profits: Interest: “Profits” Defined. An agreement between two persons for tbe purchase and sale of real estate and a division of the profits, which binds one of them to furnish the money for the purchases and the other to furnish his efforts and experience and which provides that the latter shall receive one-third of the profits made in the venture, requires that interest on the money furnished for the purchase of .unproductive real estate, from the dates of purchase, be allowed before profits can be distributed; “profits” being the excess of returns over advancements, and interest on the price of unproductive property being a part of its cost.</p> <p>2. -; -: -: Action for Accounting. In an action for an accounting of profits in a joint adventure for the purchase and sale of real estate and a distribution of profits, evidence held to support a finding that one of the parties had paid taxes on property acquired pursuant to the agreement, requiring the court to give him credit therefor.</p> <p>3; EVIDENCE: Conveyances: Explaining Consideration Clause. A deed by a party to a joint adventure for the purchase and sale of real estate and a distribution of the profits, which conveys real estate acquired pursuant to the agreement and which recites a consideration in the form of the usual receipt clause in deeds, is not conclusive on the parties to the joint adventure; and in an action by the adverse party for an accounting, it is competent to show the actual consideration for the conveyance, as bearing on the amount for which the other party must account.</p>

— Eon. David E. Eby, Judge. (1) Tlie power of an administrator or. executor to sell or dispose of tlie debts and evidences of debt of tbe estate of Ms intestate is limited and regulated by statute. Any such sale or disposition is void except to creditors, legatees and distributees in discharge of an amount of their claims equal to the amount of such debt or evidence of debt. Sec. 210, R. S. 1899 ; Marshall v. Myers, 96 Mo. App. 643; Cowgill v. Linville, 20 Mo.

Louis City Circuit Court. — How. Matt. G. Reynolds, Judge. (1) The trial court erred in excluding the counterclaim, because an action lies for malicious prosecution of a civil action. Cooper v. Scyoc, 104 Mo. App. 414; Brady v. Erwin, 48 Mo. 533. (2) The counterclaim states a perfect cause of action for malicious prosecution of the civil action mentioned.

Charles Circuit Court.— lion. James D. Barnett, Judge. (1) The facts stated in the petition show that the appellant had been and was promoting the organization and incorporation of the Central Bank of St. Charles at the time the alleged contract between him and respondent was entered into, by and through which contract he was to receive from respondent the sum of eleven hundred dollars for his services and influence with the subscribers for stock and stockholders in said…

— Hon. Henry C. Riley, Judge. (1) One- can not state one cause of action in his petition and recover upon another. Link v. Vaughn 17 Mo. 585 ; Hubbard v. Railroad, 63' Mo. 68; Boon v. Stover, 66 Mo. 430 ; Clements v. Yeates, 69 Mo. 623-, Carson v. Cummings, 69 Mo. 325; Weil v. Poston, 77 Mo. 284; Summers v. Rogers, 90 Mo. 324; Huston v. Tyler, 140 Mo. 264. (2) And the facts constituting the cause of action must be stated as they actually exist.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Tlie covered platform directly in. front of the main entrance of appellant’s residence does not violate any restrictions imposed upon appellant’s lot and is permissible under that clause of the restrictions covering Ms lot which says that “ the 'steps and platform in front of the main door may extend over said building line not to exceed eight feet.” (2) A court of equity will not lend its aid to restrain the…

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

— Eon. W. 0. Thomas, Judge. (1) The court erred in overruling appellant’s motion to make the petition more definite and. certain, Orcutt v. Bldg. Co., 201 Mo. 424; Roscoe v. Railroad, 202 Mo. 587; Keller v. Railroad, 140 Pa. St. 65; Le-Barron v. Perry Co., 11 Allen (Mass.), 312; Parley v. Traction Co., 132 Pa. St. 58; Ilayman v. Railroad, 118 Pa. St. 508; F'earn v. Perry Co., 143 Pa. St. 122.

<p>Appeal from Jackson Circuit Court. — Now. W. A. Powell, Judge.</p>

<p>1. SLANDER: Jury Question. Plaintiff, the wife of defendant’s son, sued for damages for slander claiming defendant called her a “God damn little black bitch” in the presence of others. Defendant denied using that language. Held, that the credibility of defendant and his witnesses as well as the truth of their account of the quarrel were issues of fact for the jury to solve.</p> <p>■2. SLANDER PER SE. To call a woman “a whoring bitch” is slander per se since the adjective carries the charge that the woman has been guilty of fornication or adultery.</p> <p>3. SLANDER: Instruction. Where the only effect of a provision in an instruction is to increase the burden of plaintiff, the defendant has no cause for complaint.</p> <p>4. -: Remarks of Counsel. Remarks of counsel to the jury considered and held to be without justification or excuse and highly prejudicial.</p>

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

— Hon. W. A. Poiuell, Judge. (1) Under the evidence it stands undisputed that plaintiff, as “material man,” furnished the radiators to Rood & McIntyre, contractors, to he put in the Curtice residence. Plaintiff was therefore entitled to the benefits- of mechanic’s lien statute, Sec. 8212, R. S. 1909; Smith & Co. v. Spear, 65 Mo. App. 87; Thompson & Co. v. Massey, 76 Mo. App. 197.

<p>DIVORCE: Desertion: Period of Abandonment. Plaintiff sued for-divorce upon the ground of desertion for one year and a decree was granted to him. After deserting plaintiff, the defendant commenced an action for divorce in another county, but upon a. hearing, her petition was dismissed. The time during which her suit was pending was included in the year that plaintiff' charged she remained away from him. Held, that defendant’s suit was not brought in good faith and that the period of abandonment ran continuously from the time she left plaintiff to the filing of this suit.</p>

<p>Appeal from Callaway Circuit Court. — How. M. D. Thurmond, Judge.</p>

— Hon. E. E. Porterfield, Judge. (1) Respondents did not deny partnership under oath and it stands admitted. R. S. 1909, see. 1985; Nephler v. Woodward, 200 Mo. 179; Tyrrel v. Milliken, T35 Mo. App. 293. (2) Where one asks and receives service there is an implied contract to pay. By appellants asking for information and receiving it, there was an implied contract to pay therefor as found by the trial court. Levitt v. Miller, 64 Mo. App. 147; McQueen v. Wilson, Adm’r, 51 Mo.

<p>Appeal from Jackson Circuit Court. — How-. Jas. E. Goodrich, Judge.</p>

<p>Appeal from Johnson Circuit Court. — Eon. N. M. Bradley, Judge.</p>

— Hó,». B. B. Midcllebrook, Judge. (1) Plaintiff’s right to forfeiture was waived hy recognizing defendants as his tenants and demanding rent after right of forfeiture had accrued. Camp v. Scott, 47 Conn. 366 ; Conger v. Durye, 90 N. Y. 600; Nagel v. League, 70 Mo. App. 487; Garnhart v. Finney, 40 Mo. 449; Platt on Leases, 468; Murray v. Aorway, 56 N. Y. 342; 18 Am. & Eng., (2 Ed.), 382, sec. B. 24 Cyc. 1360, sec. 2; Tailor on Landlord and Tenant, 497.

<p>1. JUDGMENTS: Jurisdiction: Service on Corporation: Delinquent Stockholder. Plaintiff purchased a judgment against the defendant railway company and, finding the latter insolvent, filed a motion under the statute to obtain an execution against the other defendant as a delinquent stockholder. Held, that as the court had no jurisdiction for want of service on the railway company the judgment was void, and plaintiffs’ motion should be denied.</p> <p>2. -: -: Estoppel. A delinquent stockholder in an insolvent corporation, is not estopped from setting up want of jurisdiction in the court to render a judgment because there was no service on the corporation, where it is sought to hold him liable as a delinquent stockholder, by a corporation, that had purchased the judgment through the said stockholder who was one of its officers, but who was not aware, at the time, that the judgment was void.</p>

<p>Appeal from Jackson Circuit Court. — Ho». John I. Williamson, Special Judge.</p>

<p>1. EMPLOYERS LIABILITY INSURANCE: Assistance Rendered by Assured: Solvency of Assured: Protecting Payment of Judgment. In an action on an employer’s liability policy it appeared that a judgment had been obtained against plaintiff on account of the negligent killing of one of plaintiffs employees. The insurance company had full charge of the defense of the suit. While the' appeal was pending, plaintiff (in this case) in order to consummate a sale of its mining property, agreed that that much of the purchase price in excess of a mortgage debt against the property should be deposited in a bank to be paid on the judgment in case it was affirmed. Held, that such action on part of plaintiff did not violate the condition of the policy which provided that the plaintiff should render defendant all co-operation and assistance in its power, even though the deposit of said purchase money rendered it more difficult to compromise with the judgment creditor by causing her to feel secure in the payment of that amount of her judgment.</p> <p>2. -: Judgment in Excess of Liability: Reduction of • Excess Judgment: Effect on Liability Under Policy. In an action on' an employer’s liability policy, it appeared that a judgment of $7,000 had been obtained against the plaintiff on account of the negligent killing of one of plaintiffs employees. The insurance company had full charge of the defense of this suit and an appeal was taken to the .appellate court where the judgment was affirmed. After affirmance of the judgment the same was compromised by plaintiff paying a little over $5,000, which was the amount of the liability of the defendant company under its policy. Held, that the defendant was not entitled to any deduction from its full liability on account of the reduction in the judgment under the compromise thereof.</p> <p>8. -: Insolvency of Assured: Duty to Pay Judgment: Assistance Rendered by Assured. Insolvency is not a legal defense to a debt and the question of solvency or insolvency has nothing to do with the duty to pay, only the ability, and the assured under the conditions of an employer’s liability policy, requiring it to render the insurance company all the co-operation - and assistance in its power, is not required to boast of an insufficient appeal bond or its own insolvency for the purpose of enabling the insurance company to compromise a judgment from the payment of which the assured was protected by the policy.</p> <p>4. CONTRACTS: Construction: Employer’s Liability Insurance. An employer’s liability insurance policy is construed, tbe same as other insurance contracts, to-wit: most favorable to the insured.</p> <p>5. EMPLOYER’S LIABILITY INSURANCE: Penalty for Failure to Pay Loss. Section 7068, Revised Statutes 1909, which provides for the recovery of an amount not exceeding ten per cent of the loss, and reasonable attorney’s fees, in an action against any insurance company for loss under a policy of fire, life, marine or,other insurance, where the company vexatiously refused to pay such loss, does not cover actions on employer’s liability insurance, because such insurance is not of the same class as ordinary fire, life and marine insurance, and was not in fact in vogue at the time this law was passed, and the amendment to this section in 1911; so as to include employers’ liability insurance, indicates that the lawmakers were of the opinion that the statute before amendment was not broad enough to include such insurance.</p> <p>6. STATUTORY CONSTRUCTION: General Words and Particular Classes: Ejusdem Generis. Where a statute contains general words only, such general words are to receive a general construction. But where a statute enumerates particular classes or things, followed by general words, the general words will not ordinarily have a general meaning, but will be limited in their meaning to objects of the kind and character specified.</p> <p>7. -: -: --. The rule that general words followed by particular ones will be limited to the same class as the particular ones, does not apply in full force in all cases, but is resorted to merely as an aid in the construction of statutes, and where from a full consideration of the entire statute and the purposes the Legislature had in view in enacting it, it is apparent that the Legislature intended the general words to include classes not specially designated, the general words must be given a meaning beyond their special class; also where the particular words exhaust the class then the general words must have a meaning beyond the class or be discarded altogether.</p> <p>8. -: Penal Statutes: Penalty for Failure to Pay Insurance: Employers’ Liability Insurance. Section 7068, Revised Statutes 1909, providing for the recovery of damages against certain classes of insurance companies for vexatiously refusing to pay losses is highly penal and should not be held to apply to any company or class of insurance that is not plainly included by its provisions.</p>

— Hon, Guy D. Kirby, Judge. (1) The agreement is sufficient within the statute of frauds if it appears by different memoranda, or even if in a letter written by the party sought to be charged and directed to a third party. Cunningham v. Williams, 43 Mo. App. 629; Black & Snyder v. Crowther, 74 Mo. App'. 480; Grocer Co. v. Capen, 23 Mo. App. 301; Peyeke Bros. v. Aherns, 98 Mo. App. 456.

<p>Appeal from Pettis Circuit Court. — Hon. Louis Hoffman, Judge.</p>

<p>1. NEGLIGENCE: Cities: Falling Limbs. While walking on the sidewalk along a public street in Sedalia a rotten limb of a tree fell and struck plaintiff and injured her. The appearance of the limb after it fell indicated that it had been in a.rotten condition for a long time. The city’s officers had no actual knowledge of the condition of the limb. Held, that it was a question for the jury to determine as to whether or not the city officials could have, by the exercise of reasonable care, discovered that the limb was rotten and a source of danger in time to have prevented the injury.</p> <p>2. -: -: -. Cities must exercise reasonable care to keep their streets reasonably safe from falling substances, as well as from defects in the roadbed.</p>

— How. John P. Butler, Judge. (1) The court erred in admitting in evidence, over objection of defendant, the certified copy of the alleged original judgment of the circuit court of Macon county, the same being irregular, erroneous and void; and, because it did not tend to prove the cause of. action declared in the' plaintiff’s petition; and, because there was a fatal variance between it and the cause of action alleged in the petition; and because the evidence offered does…

<p>1. FRATERNAL BENEVOLENT ASSOCIATIONS: Ultra Vires. A plea of ultra vires cannot be invoked where the contract is executed and especially where the association has been receiving the premiums on the policy with knowledge.</p> <p>2. -: Foreign Fraternal Benevolent Associations: Life Insurance. Although a foreign association is organized as a fraternal benevolent association and licensed as such in this state, its policies will be considered regular life insurance contracts where they contain a definite agreement as to the benefits to accrue and a fixed amount and terms of payments of - premium and no reservation of authority to vary the terms or to raise the rates of premium.</p> <p>3. -: Consolidation Contracts. The provisions of a contract consolidating two life insurance companies or fraternal associations can only be incorporated in the contract of insurance by direct reference to it, showing that the parties intended' to make the terms of the former a part.</p> <p>4. -; Committee of Appeals: Arbitration. A provision in a benefit certificate requiring an appeal to a committee of appeals as a condition precedent to the commencement of suit is void where the question was one of law and not of fact.</p>

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

— Ron. Jas. E. Goodrich, Judge. (1) By the terms of the contract between plaintiff and the other members of the association, it was made a condition precedent to the taking effect of any insurance, and the attaching of any liability on the part of a member, that the association should have one hundred or inore subscribers. At no time did the association have one hundred subscribers. For such cause this action must fail. Railroad v. Newton, 74 Mass. 596; Literary and Seien.

<p>Appeal from Lafayette Circuit Court. — Eon. Samuel Davis, Judge.</p> <p>(1) The justice had no jurisdiction. Smith v. Simpson, 80 Mo. 634; Dennis v. Bailey, 104 Mo. App. 638; Harris v. Merdith, 106 Mo. App. 586; Barnes v. Plessner, 121 Mo. App. 677; Grant v. Stubblefield, 138 Mo. App. 555. (2) One joint owner of personal property can not maintain replevin against Ms co-owner. Gray v. Parker, 38 Mo. 160; Cross v. Hulett, 53' Mo. 397; Lisbnby v. Phelps, 71 Mo. 522; Pulliam v. Burlingame, 81 Mo. Ill; Ingals v. Ferguson, 138 Mo. 358; Upham v. Allen, 73 Mo. App. 228; Miller v. Crigler, 83 Mo. App. 406; Kelley v. Vandiver, 75 Mo. App. 435; Bryant v. Dyer, 96 Mo. App. 455. (3) The posts in controversy were cut from a hedge fence standing-on the line between the lands of plaintiff and defendant, and were therefore the common property of both, and not subject to replevin. 1 Wash Real. Prop. (3 Ed.), sec. 7; Griffin v. Bixby, 12 N. H. 454, 37 Am. Dec. 225; Dubois v. Beaver, 25 N. T. 123, 82 Am. Dec. 326; Scarborough v. Wodill (Cal.), 93 Pac. 383; Harndon v. Stultz (Iowa), 100 N W. 329; Quillen v. Betts (Del.), 39 Atl. 595; Phillips v. Brittingham (Del.), 77 Atl. 964.</p> <p>(1) A fence not built on the boundary line between two landowners, but on the builder’s own'land, is not a division fence under the statute and cannot become one. Jeffries v. Burgin, 57 Mo. 327; Sims v. Field, 74 Mo. 138. (2) If a party builds at his own expense a fence separating- his land from his neighbor’s, whether it be on the line or not unless the necessary steps are taken under our statute to make it a division fence, it- remains the exclusive property of the builder. Demetz v. Benton, 35 Mo. App-. 559'. (3) Under section 6468; R. S. 1909', any person can build and own a hedge fence right on the line between his and another’s land. (4) Where the record is silent as to jurisdictional facts in the inferior court and does not show a want of jurisdiction, and appearance entered both there and in superior courts without objection to the jurisdiction the presumption will prevail that the superior court had jurisdiction. Kellogg v. Linger, 60 Mo. App'. 571; Edwards v. Smith, 16 Colo. 529; Schrader v. Hoover, 87 la. 654; Warsen V. Grlynn, 37 N. H. 340; Mason v. Alexander, 44 Oh. St. 318.</p>

<p>REAL ESTATE AGENTS: Justices of the Peace: Jurisdiction. Plaintiff sued in a justice court to recover a real estate agent’s commission. He filed a written statement of his cause of action alleging that his contract of employment was in writing, hut he did not file the contract with the justice at any time. He obtained judgment and upon appeal the circuit court sustained a motion to dismiss the cause upon the ground that the court had no jurisdiction because the written contract was not filed. Held, that the filing of the contract was not essential to the jurisdiction of the justice over the subject-matter.</p>

— Eon. N. M. Bradley, Judge. (1) Fee bill is the proper means for the enforcement of the payment of fees due circuit clerk. Page v. Bettes, 19 Mo. App. 627; Beadle v. Mead, 81 Mo. 297; Hoover v. Railroad, 115 Mo. 77; Watkins v. McDonald, 70 Mo. App. 362. (2) Fee bill has the same force and effect as an execution, and is governed by the same rules of procedure. R. S. 1909, sec. 10690.

— Ho». L. B. Woodsicle, Judge. This appeal should be dismissed. The transcript of the record and bill of exceptions were not filed in time. R. S. 1909’, secs. 2047, 2048 and 2049; Rule 16, Springfield Court of Appeals; State ex rel. v. Smith, 172 Mo. 456 ; State ex rel. v. Gibson, 187 Mo. 558; St. Louis to use v. Bambrick, 41 Mo. App. 648.

Louis City Circuit Court. — Row. Eugene McQuillin, Judge. (1) The contract of a real estate agent is to secure a purchaser ready, willing and able financially and otherwise, to buy the property, and when the real estate agent has obtained such a person and has introduced the parties for the first time, and has shown the prospective buyer the property, he is entitled to his commissions. Butts v. Ruby, 85 Mo. App. 405; Crone v. Trust Co., 85' Mo.

Louis City Circuit Court. — Row. Charles Claflin Allen, Judge. (1) Neither trover nor conversion will lie when the plaintiff has neither the right of property in, nor the right of possession to, the chattels alleged to have been converted. Johnson-Brihkman Co. v. Bank, 116 Mo. 558; Parker v. Rhodes, 791 Mo. 88; Meyers v. Hale, 17 Mo. App-. 204; Frazier v. Railroad, 104 Mo. App. 355; Hardwick v. Cox, 50 Mo. App. 509; Greenway v. James, 34 Mo. 326; Davis v. Tandy, 107 Mo.

<p>Appeal from St. Francois Circuit Court. — Hon. Charles A. Killian, Judge.</p> <p>(1) The evidence is undisputed, the house was vacant and unoccupied-for ten days before the fire. The court by instructions given, recognized the provision of the policy that if the property became vacant and unoccupied and so remained for ten days the insurance should be void, as valid, and the law of the case, and upon that theory should have sustained the demurrer to the evidence. Hoover v. Ins. Co., 93 Mo. App. Ill; Cook v. Ins. Co., 70 Mo. 610; Craig v. Ins. Co., 34 Mo. App. 481. (2) The policy became void when the insured, Wheeling, deeded and delivered possession of the property insured to Walton. The change of title and possession made it so. It at the same time became void as to the mortgagee because the mortgage interest was insured “subject to all the terms and conditions of the policy.” Kambrich v. Ins. Co., 48 Mo. App. 393; Kempf v. Ins. Co., 41 Mo. App. 27; Manning v.- Ins. Co., 123 Mo. App. 456; Bamerd v. Ins. Co., 27 Mo. App. 26. (3) Plaintiff sued as mortgagee. His mortgage was canceled by the transfer of the property to him to satisfy and in payment of the debt and no interest as mortgagee remained to sustain a claim in his favor as mortgagee under the policy. Gfriswald v. Ins. Co., 70 Mo. 654; Ins. Co. v. Davis, 60 S. W. 802; Reynolds v. Ins. Co., 60 Pac. 467; Hossie v. Ins. Co., 6 R. I. 517.</p> <p>(1) A local agent, vested with authority to make contracts of insurance, countersign, issue and deliver policies and receive premiums, stands in the place of companies and may waive stipulations which purport to he essential to the validity of the contract. Rudd v. Ins. Co., 120 Mo. App. 10; James v. Ins. Co., 135 Mo. App. 1; Riley v. Ins. Co., 117 Mo. App. 234. (2) A fire insurance policy, which stipulates that certain given changes in the title to the property insured will render the entire policy void, may he and is waived when the agent issues the policy with full knowledge of all the circumstances resulting in such changes or attempted changes of title, and especially so when the agent assents to such changes, and conclusively so when he advises and directs such changes, and does not seek to avoid such policy and return the unearned premium. Millis v. Ins. Co., 95 Mo. App. 216; 0 ’Brien v. Ins. Co., 95 Mo. App. 303; Field v. Ins. Co., 140 Mo. App. 166; Trust Co. v. Ins. Co., 79 Mo. App. 362; Gris-wold v. Ins. Co., 1 Mo. App. 97. (3) A person in' possession of real estate, under a contract in escrow and deed in escrow for title upon payment of the purchase money, is not the sole, entire and unconditional owner thereof, and these facts do not avoid the policy, and he has no insurable interest as such escrow owner. Harness v. Ins. Co., 62 Mo. App. 248; Hubbard v. Ins. Co., 57 Mo. App. 1. (4) The tenant was moving his family, and had moved several loads into the house, which was destroyed by fire, and had arranged and placed the furniture so moved; he did not get through, on account of rain, and left a portion of his furniture in his former home, and he and his family occupied his former home on the night of he day during which he was moving. The house into which he was moving had been vacant from September 28th to October- 6th, inclusive. The new home, which, was the one insured, was not vacant within the stipulations of the policy against vacancy for the reason that it was not vacant and so remain for ten days. Norman v. Ins. Co., 74 Mo. App. 460; Brewing Co. v. Ins. Co., 63 Mo. App. 663; 8 Words and Phrases, p. 7258.. (5) The stipulation of the policy, that if the building “be and become vacant or unoccupied and so remain for ten days,” is not violated if the property is not vacant. The distinction between “vacant” and “unoccupied” is, the latter condition being broken when the-house was either empty or unused as an abode, while the former requires a concurrence of the absence of the occupant and the removal of the inanimate contents of the premises. Norman v. Ins, Co., 74 Mo. App. 4601; 8 Words and Phrases, p. 7258; 1 May, Ins. (3 Ed.), par. 249a; Estrauder, Fire Ins. (2 Ed.), par. 144; Couch v. Fire Ins. Co., 72 N. Y. Supp. 97. (6) Under a policy of fire insurance, such as is herein sued on, the burden of proof to show the vacant or unoccupied condition of the building is upon the appellant. Brewing Co. v. Ins. Co., 63 Mo. App. 663; Hoover v. Ins. Co., 93 Mo. App. 11.</p>

Louis City Circuit Court. — Roí?. George R. Shields, Judge. (1) It was error on the part of the court to permit Joseph W. Dowler to testify relative to statements made by the plaintiff, especially in view of the fact that Joseph A. Goodfellow was hard of hearing and took no part in the conversation.

Louis City Circuit Court. — Row. George• G. Hitchcock, Judge. (1) The contract was not an executed one, hut. merely an agreement to purchase at a future time, so that the measure of the plaintiff’s recovery was not the purchase price, hut rather the difference between that and the market price at the time and place of delivery.

<p>Appeal from Scott Circuit Court.- — Eon. R. G. Ranney, Special Judge.</p>

— lion. Henry C. Riley, Judge. (1) By the allegations of the petition plaintiff seeks to recover for the joint negligence and carelessness of defendants. No contract having been shown this action can not be maintained. Otrich v. Railroad, 134 S. W. 665; Meyers v. Railroad, 120 Mo. App. 292; Shewaltér v. Railroad, 84 Mo. App. 597; Milling Co. v. Railroad, 127 Mo. App. 89; McLendon v. Railroad, 119 Mo. App. 128.

. — Hon. Joseph J. Williams, Judge. (1) The court, after all the evidence was in struck out appellants’ set-off because it was “of a greater and different amount than the original set-off filed in the justice court,” and thereby committed error: (a) Because said set-off stated all the items of indebtedness between parties, as intended to be set out in the original set-off and the balance due appellants was stated to be not greater than the amount stated in the original, and…

— Eon. Jas. D. Barnett, Judge. (1) Judge Baskett bad no authority whatever to take Reid and Welch paper in exchange for defendant’s note. And this applies as well to Cannon as to Gibson who knew the ownership of the paper. It was no payment. Mechem on Agency, secs. 375-383; Story on Agency, secs. 89, 181; 31 Cyc., p. 1373-1375', par. 3, A. and B.; Graham v. Savings Inst., 46 Mo. 186; Nichols v. Jones, 32 Mo. App. 657; Knoche v. Whitiman, 86 Mo.

<p>1. APPELLATE PRACTICE: Review; Bill of Interpleader. A bill of interpleader, being an equitable proceeding, is triable de novo on appeal, and if tke judgment is for the right party, it will be affirmed, regardless of the theory followed by the trial court in arriving at it.</p> <p>2. CONTRACTS: Performance: Sufficiency of Evidence. In an action for money deposited by defendant for his performance of a contract for the purchase of land, which provided that the deposit should be refunded in the event he was unable to secure a loan of “eastern money” on the land, after making a faithful effort to obtain the same, evidence held to show that defendant made a “faithful effort” to secure an “eastern loan” as contemplated by the contract, and hence he was entitled to a return of the deposit.</p> <p>3. -: -: Construction: “Faithful Effort to Secure Loan.” A “faithful effort” to secure a loan, within a contract providing that money deposited for the performance of an agreement for the purchase of land should be returned to the depositor, in the event he was unable to secure a loan on the land after making a faithful effort to obtain the same, means such an effort as the depositor, with his experience and limitations, was capable of and could reasonably be expected to make under the circumstances, assuming he was reasonably desirous of consummating the purchase.</p> <p>4. COSTS: Retaxation After Lapse of Judgment Term. Where a motion for a new trial is still pending, a motion to retax an item of costs may be acted upon at a term subsequent to the judgment term, despite the rule that the court cannot alter a judgment after the term at which it was rendered has lapsed, for the pendency of a motion for a new trial carries the entire case over.</p> <p>5. -: Retaxation: Correction of Judgment. The object of a motion to tax against the adverse party an item of costs, which the court by its judgment had taxed against movant, is to have the court reconsider its judgment and make a different award, and by sustaining the motion, the court did, in effect, correct its judgment in that respect.</p>

Louis City Circuit Court-. — Now. Hugo Muench, Judge. Tlie defendant was not the legal owner of the premises leased but simply had charge thereof under the order of the probate court. Her powers as administratrix being limited by the order and there being no order directing her to make repairs, she was without authority to do so, and, being without such authority, no legal duty is imposed upon her to make such repairs.

— So». James D. Barnett, Judge. (1) There was no sufficient publication of notice of the submission of the stock law election at special, election held on September 10, 1887, for the reason that the county court failed to designate what newspaper published in Lincoln county, Missouri, publication of the notice of such special election should be given. R. S. 1909, sec. 780; State ex rel. v. Baldwin, 109 Mo. App. 573; State ex rel. v. Hemmesmeyer, 134 Mo.

— Hon. N. D. Thurmond, Judge. (1 A city has no right to collect water by ditches .from the whole neighborhood and discharge it on private porperty. Stewart v. Clinton, 79 Mo. 612 j Ryehlicki v. City, 98 Mo. 497; Carson v. Springfield, 53 Mo. App. 294; Canonn v. St. Joe, 67 Mo. App. 370. And if it does, it is responsible for the damages caused. Ryehlicki v. City, 98 Mo. 497; Payne v. Railroad, 112 Mo. 18 ; Lewis v. Springfield', 142 Mo. App, 88.

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

— Ron. R. B. MiddlebrooJc, Judge. (1) The court erred in setting aside the involuntary nonsuit because the catch basin where plaintiff received her injury was outside the portion of the street dedicated and prepared for travel and had never been thrown open to the public, and the city was under no duty to keep it in repair. Downend v. Kansas City, 156 Mo. 60'; Ely v. St. Louis, 181 Mo. 724; Atkinson v. Nevada, 133 Mo. App. 1.

— Ron. John P. Butter, Judge. Under the Statute of Wills, section 546, Revised Statutes 1909, appellant’s ward takes the estate devised to her father, directly from her grandfather under the will. Heady v. Crouse, 203 Mo. 100'.

— Hon. James E. Goodrich, Judge. (1) The motion to dissolve for want of equity in the bill amounted to a demurrer, and, this ‘having- been sustained, the appeal was properly taken on the record without a bill of exceptions. R. S. 1909', sec. 2038; Crow v. Jewelry Co., 116 Mo. App: 624; Austin v. Loring, 63 Mo. 19. (2) Answer had been.filed by defendant and is still on file, forming a part of the record proper, and hence before this court.

— Hon. George H. Shields, Judge. (1) The document filed as an exhibit to the petition and read in evidence is no contract. As plaintiff sues for breach of a contract she must prove a contract between herself and defendant, and as she failed to do this the instructions asked by defendant to the effect that she could not recover should have been given. Const. Co. v. Iron Works, 169 Mo. 137; Cole v. Armour, 154 Mo. 333; Const. Co. v. Wrecking Co., 137 Mo.

— Eon. Charles J). Stewart, Judge. (1) The justice of the peace in this case had no jurisdiction, because the statement in the cause does not allege that the defendant resides in Liberty township, the place where the suit was commenced, or an adjoining township. Neither does the record show such fact. Sawyer v. Burris, 121 S. W. 321; Burris v. Leadwill, 6 Mo. App. 192; Patchen v. Durrett, 116 Mo.

<p>1. CARRIERS OF PASSENGERS: Street Railways; Boarding Car in Motion: Contributory Negligence. Whether a person who boards a street car, which has been slowed down on his signal to receive him as a passenger and which is moving so slowly as to be practically stopped, is guilty of contributory negligence is a question for the jury.</p> <p>2. -: -: Action for Injury: Boarding Car: Pleading: Petition Construed. In an action for injuries sustained by plaintiff as a result of being thrown from a street car which was put in motion while he was boarding it, the gravamen of the petition field to charge that, after plaintiff had been invited to become a passenger and was upon the step of the car in the act of becoming such, the operators of the car, with full knowledge of his situation, suddenly started it forward, and hence that an allegation that the car was standing still at the time plaintiff attempted to board it was merely matter of inducement.</p> <p>3.--: -: -: -: -: -: — : Instructions. Where the petition in an action for personal injuries by a street car passenger, alleged that, after plaintiff had been invited to become a passenger and was upon the step of the car in the act of becoming such, the operators of the car, with full knowledge of his situation, suddenly started it forward, the negligence relied upon had no relation to the fact whether plaintiff attempted to board the car while it was in motion or ■ at rest, and hence it was error to instruct the jury that he could not recover, if he attempted to board the car while it was in motion.</p> <p>4. -: -: Creating Relation of Carrier and Passenger. While one cannot create the relation of carrier and passenger between a street railway company and himself by merely attempting to board a moving car, that relation may be found to exist from the fact that one, who signalled an approaching car to stop, attempted to board it after it had slowed down at a usual stopping place so as to be almost stopped.</p>

Louis City Circuit Court. — lion. Matt G. Reynolds, Judge. (1) The court erred in allowing plaintiff to recover upon a theory different from that set forth in the petition.

— Hon. Henry C. Riley, Judge. (1) A city is only liable for negligence in the exercise of powers conferred for its private corporate advantage; but is not liable for the negligence of its officers when engaged in enforcing the police regulations of the city, because their duties are in the interests of civil government and of the public, and are not for this reason regarded as mere officers of the town in its corporate capacity.

<p>1. LANDLORD AND TENANT: Unlawful Detainer: Statutory Construction: Ejusdem Generis. The words, “other possessions,” in section 7657, Revised Statutes 1909, authorizing an action of unlawful detainer where one willfully and without force holds over any lands, tenements or other possessions after the time for which they were demised or let to him or the person under whom he claims, are to be interpreted, under the rule of ejusdem generis, as relating to a subject-matter of like character to those described in the prior words of the statute.</p> <p>-: -: When Maintainable. An action of unlawful detainer will not lie, under section 7657, Revised Statutes 1909, unless the relation of landlord and tenant exists between the parties.</p> <p>3. -: Leases: What Constitutes. That an instrument is denominated a lease and uses technical words of demise is not sufficient to constitute it a lease, if it in fact appears to be something else.</p> <p>4. -: When Relation Arises. -The relation of landlord and tenant is created by contract, express or implied, for the possession of lands or tenements, in consideration of certain rent to be paid therefor, and does not obtain unless possession of the premises is conferred upon the tenant.</p> <p>5. -: Unlawful Defainer: Leases: Possession. An instrument granting, for a definite time, in consider.ation of a stipulated payment, a privilege to certain persons to hunt and fish on certain premises, and stipulating that the owner and his family should enjoy the same privileges, reserving possession of the premises to the owner for the purpose of agriculture, was not a lease and did not create the relation of landlord and tenant between the parties, although it employed technical words of demise, since it did not confer possession of the premises on the grantees; and hence the owner could not maintain an action of unlawful detainer, under section 7657, Revised Statutes 1909, on the failure of the licensees to cease exercising the privileges granted, after the license had expired.</p>

Louis County Circuit Court. — Ron. G. A. Wurdemcm, Judge.. (1) Neither does the petition allege nor the evidence prove that at the time the note and check were given, or at the time they were paid, the facts were such as to constitute duress, and consequently, even if it be held that defendant was not then entitled to the alleged excess payment, the plaintiff, who paid his money with full knowledge pf the facts, is not entitled to recover the payment made to defendant, (a)…

. Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) Samuel M. Piper, having by leave of court, filed an interplea and petition of claims, in which he claimed an interest in the property by reason of ownership of the judgment in the case of Piper Carriage Company v. Harry H. Grove et ah, No. 32097, room 7, and suit to enforce same, No. 65370', room 5, he was entitled to a hearing on his said interplea and petition of claims.

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. (1) In Missouri, a corporation cannot be guilty of a criminal contempt. Section 2528, Revised. Statutes 1909; section 3642, Revised Statutes 1899. (2) If tlie operating officers and' servants of tlie defendant were not guilty of contempt (and the court so found) then the corporation could not be guilty of contempt.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. (1) Tbe absence of John Walsh is adequately explained by the fact that he had no close family ties in St. Louis, and when last seen had suffered the disgrace of a dishonorable discharge from the United States Army. Biegler v. Supreme Council, 57 Mo. App. 419; Bradley v. M. W. A., 146 Mo. App. 428.

Louis City Circuit Court. — Eon. George H. Williams, Judge. (1) The court erred in permitting plaintiff to testify over defendant’s objection as to the number of her children and their respective ages. Stephens v. Railroad, 96 Mo. 207; Dayharsh v. Railroad, 103 Mo. 570; Mahoney v. Railroad, 168 Mo. 191; Wihiams v. Railroad, 123 Mo. 573.

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) Mr. Conrad Schopp bought the Schopp Building subject only to the written recorded lease to Geo. P. Schoop & Co. Verbal licenses or easements granted by a former owner do not run with the land. R. S. 1909, sec. 2782. (2) The lessees had no right to authorize the building to be used for any purpose which under the contemplation of the lease would be considered an unreasonable use. Murphy v. Type Fdry., 29 Mo.

— Hon. Henry C. Riley, Judge. (1) The record discloses the undisputed fact that respondent did not show that she was hurt at the placa set out in her petition. The demurrer offered by appellant at the close of the testimony should have been sustained. There was variance between the testimony and the petition. G-roll v. Tower, 85 Mo. 249 ; Lind v. Vaughn, 17 Mo. 585.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. (1) The defendant had the power to enter into with the plaintiff the contract sued upon, and even if defectively executed, the plaintiff is entitled to recover thereon to the extent of services rendered under said contract. Laws of Missouri 1903, p. 81; Edwards v. Kirkwood, 147 Mo. App. 599'.

<p>1. STREET RAILWAYS: Rights in Streets: Rights of Vehicles. While neither a street car nor any other vehicle has exclusive rights in the public streets, and while other vehicles must not unduly obstruct cars on the tracks, yet, where a vehicle cannot turn out because of obstructions in the street, a street car following such vehicle must be operated at such speed as will not endanger the latter.</p> <p>2. -: Person Driving in Track: Duty of Motorman. A motorman, who operates a street car following a vehiple on the track in a street which is so obstructed so as to render it almost impossible for tbe vehicle to turn out, and who knows that because of the conditions of the traffic the vehicle is liable to come to a sudden stop, must keep his car under complete control, so that it can be stopped instantly, and the failure to so control it is actionable negligence.</p> <p>3. —-: Injury to Person Driving in Track: Negligence: Sufficiency of Evidence. In an action for injuries sustained in a collision between a street car and a buggy in which plaintiff was riding, it was shown that the street was obstructed on both sides, so as to render it almost impossible for the vehicle to turn out of the track, and that upon its being suddenly stopped, it was struck by a street car which had been following it, and that the car ran quite a distance beyond the point of collision. Held, there was evidence that the motorman failed to keep the car under complete control, as it was his duty to do, and the case, therefore, was one for the jury.</p> <p>4. APPELLATE PRACTICE: Invited Error: Instructions: Street Railways. In an action against a street railway company for injuries received by plaintiff, while riding in a buggy, by reason of the buggy, which had been traveling in the track, being struck by a car Which approached from the rear, the court, on the request of defendant, charged that if the buggy stopped on the track immediately in front of the car, so as to make it impossible for the motorman to prevent a collision, the verdict must be for defendant, and, at the instance of plaintiff, charged that if the collision occurred by neglecting to stop or check the speed of the car within the shortest time and space possible after the motorman saw the dangerous situation of the buggy, the verdict should be for plaintiff. Held, that defendant could not be heard to complain of plaintiff’s instruction, on the ground that it was not justified by the evidence, since it was practically the converse of the instruction given on its request.</p> <p>5. -: Review: Invited Error: Instructions.- A party will not be heard to complain of an error which he invites or adopts, and where a party has requested similar instructions to those given, he is in no position to complain of the latter.</p>

<p>JUSTICES’ COURTS: Pleading: Amendment. Where, in an action before a justice of the peace, plaintiff filed an insufficient statement of his cause of action, but afterwards filed a sufficient statement within the time required by the justice, on which the-case was tried, the action was not subject to dismissal, on appeal to the circuit court, on the theory that the original statement filed was no statement at all and hence was not amendable, since section 7413, Revised Statutes 1909, provides that no such suit shall be dismissed or discontinued for want of a statement of the cause of action or for any defect or insufficiency therein, if the plaintiff shall file a sufficient statement before the jury is sworn or the trial commenced, or when required by the justice.</p>

— Son. Charles D. Stewart, Judge. (1) In eases of doubtful right a court of chancery will wait for the right to be settled at law, before it will interfere by the extraordinary process of injunction. Skrainka v. Oertel, 14 Mo. App. 479.

Charles Circuit Court. — Ron. James D. Barnett, Judge. (1) The demurrer of defendant to plaintiff’s petition should have been sustained, because: (a) The transactions pleaded between plaintiff and defendant’s station agent Steed, on January 17,1906, do not, in law, create a contract. Yersteeg v. Fruit Co., 138 S. W. 901: Clemens v. Bloomfield, 19 Mo. 118; Batavia v. Railroad, 126 Mo. App. 13; Service Co. v. Drug Co., 148 Mo. App. 327.

—Eon. R. G. Romney, Judge. (1) Negligence consists in the violation of some dnty having regard to the relation between the parties, to time, place and circumstances. Henry v. Railroad, 76 Mo. 288; Richmond v. Railroad, 133 Mo. App. 463; Dowd v. Railroad, 20- L. R. A. (Wis.) 532; Carr v. Railroad, 195 Mo. 214. (2) Appellant owed no duty to the plaintiff.

Louis City Circuit Court. — Eon. . George E. Williams, Judge. (1) The court should have given the peremptory instruction requested by the defendant at the close of the whole case, for the reason that under all the evidence the plaintiff made no case for the jury and was not entitled to recover. Greeley v. Foster, 75 Pac. 351 TVoerhide v. Foundry Co., 32 Mo. App. 367; Zigenmeyer v. Lime, etc., Co., 113 Mo. App. 330; Bennett v. Lime Co., 146 Mo.

<p>Appeal from Jackson Circuit Court. — Eon. R. B. Middlebrook, Judge.</p>

<p>NEGLIGENCE: Humanitarian Doctrine: Street Railways. Plaintiff sued for damages for injuries received when his electric coupe collided with an electric street car, while crossing the tracks at a street intersection. Held, that the evidence of plaintiff presents an issue of negligence on the part of the motorman in the performance of a humanitarian duty he owed plaintiff and the jury were entitled to believe that the motorman had ample opportunity to avoid the injury but recklessly disregarded it and negligently ran into plaintiff.</p>

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

<p>CONVERSION: Chattel Mortgages: Tender: Pleading. Plaintiff sued for damages for the conversion of certain personal property-comprising a restaurant. He conducted the restaurant for some time and while doing so placed a chattel mortgage thereon to secure a note given for borrowed money. Later he leased the restaurant. The mortgagee sold thé note and the purchaser foreclosed and sold the restaurant. Plaintiff tendered the amount due on the mortgage note to the purchaser thereof as agent of defendant. Payment was refused upon the ground that the property had beep'sold under foreclosure. The petition alleged tender but failed to allege that the tender was kept good. Objection to the introduction of any evidence under the petition on this ground, was made at the beginning of the trial and was overruled. Held that the objection to the admission of any evidence-should have been sustained.</p>

— Hon. William H. Martin, Judge. (1) Tlie evidence adduced at tlie hearing July, 1910, establishes plaintiff’s right to a divorce, and the court should have granted her a decree. Lynch v. Lynch, 87 Mo. App. 32; Ulrey v. Ulrey, 80 Mo. App. 48; Ramey v. Ramey, 128- Mo. App. 167; Morgan v. Morg’an, 134 Mo. App. 165. There was no collusion between the plaintiff and defendant. Rosenfeld v. Rosenfeld, 67 Mo. App. 29; Shirk v. Shirk, 75 Mo.

<p>Appeal from Jackson Criminal Court. — Hon. Ralph 8. Laishaio, Judge,</p>

<p>1. FORCIBLE ENTRY AND DETAINER: Sufficiency of Complaint. A complaint in forcible entry and detainer, describing tire land involved as “a strip of ground four (4) feet wide at the north end and six and one-half (6%) feet wide at the south end, extending across the entire west side” of a quarter section of land, held too indefinite to support a judgment for plaintiff.</p> <p>2. -: -: Description. A judgment in forcible entry and detainer wherein the description of the land does not correspond with the description in the complaint, held to be improper and cause for reversal.</p>

<p>1. UNLAWFUL DETAINER: Notice: Summons: Appearance and Trial. Notwithstanding no summons should be issued and served on defendant in unlawful detainer before a justice of the peace, yet if the defendant appeals to the circuit court and there enters upon a trial on the merits, the lack of a summons is waived.</p> <p>2. -: Complaint: Jurisdiction. A complaint in unlawful detainer examined and found sufficient to give the justice of the peace jurisdiction.</p>

<p>1. DISBARMENT: Attorney at Law: Character. Too much is staked upon the honesty and good conduct of lawyers for courts to wink at flagrant misconduct. They are trusted by the community with the care of their lives, liberty and property, with no other security than personal honor and integrity.</p> <p>2. PROSECUTING ATTORNEYS: United States District Attorneys: Partners: Statute. The statute of Missouri (Sec. 1039, R. S. 1909) forbidding partners of prosecuting attorneys from defending in criminal cases, does not apply to United States district attorneys practicing in the Federal court.</p> <p>3. -: -: -:--. Aside from a statute, it would be unprofessional conduct, justifying disbarment, for a United States district attorney to have a partner defending criminal cases in the Federal court.</p> <p>4. -: Partner: Civil Business: Criminal Cases. The law of Missouri does not forbid a person holding the office of prosecuting attorney, from having a partner in civil business. But it would be unlawful for such partner to defend criminal cases.</p> <p>5. GRAND JURY: Accused: Right to Appear Before. One under investigation by a Federal grand jury for a criminal offense, has no right to demand that the United States district attorney permit him to go before such jury for the purpose of explaining the charges; and it is not misconduct in the attorney if he fails to invite him before the jury.</p> <p>6. - — :--: -: Private Papers: Evidence: Order of Court. Where papers belonging to one accused of using the mails for fraudulent purposes, are turned over to a post-office inspector by the accused party, with the promise that he will return them, and he places them in the hands of the United States district attorney; it was held not unlawful or improper for the latter to obtain an order from the Federal court placing the papers in the custody of the clerk of the court for use of either party at the trial.</p> <p>7. -: -: -: -: -: -. A number of charges against a United States district attorney, of alleged misconduct, with a view to his disbarment from practice in the state courts, are separately examined and each found to be wholly unsupported by evidence.</p> <p>8. -: Zeal: Duty: Persecution: Disbarment Proceeding. While a prosecuting officer should not allow his zeal in the performance of a public duty to lead him into a persecution of the accused, yet he should be allowed a full performance of that duty, unhampered by the embarrassment of disbarment proceedings.</p>

<p>Appeal from Adair Circuit Court. — lion. Nat M. Shelton, Judge.</p>

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

<p>Appeal from Moniteau Circuit Court. — JJon. John M. Williams, Judge.</p>

<p>APPEAL AND ERROR: Justice Courts: Motion to Retax Costs:. Tender. Where a tender was made before suit was brought in a justice court and kept good by depositing the money in court and thereafter the justice entered judgment against the party making the tender, including costs, no appeal can be taken from the judgment for costs unless a motion to retax costs is filed, within the prescribed time, and overruled.</p>

— lion. G. II. Shinier, Judge. (1) The word “residence” within the meaning of the statute providing for' the venue of actions means a permanent and fixed home and is synonymous with the word “domicile.” Humphrey v. Humphrey, 115 Mo. App. 363; Hamill v. Talbot, 81 Mo. App. 216; State ex rel. v. Shepherd, 218 Mo. 666-; Green v. Beck-with, 38 Mo. 384; Crenshaw v. Insurance Co., 71 Mo. App. 42; McDowell v. Friedman, 135 Mo. App. 287; Lagerholm v. Lagerholm, 133 Mo.