Volume 163 — Missouri Appeal Reports

— Ron. Carr McNatt, Judge. (1) While a contract remains executory on both sides, an agreement to annul on one side is a consideration to annul on the other and vice versa. On the other hand if the contract has been executed on one side an agreement without any new consideration, that it shall not be binding, is without consideration and void. 9 Cyc. 594; Coal Co. v. Strunk, 96 S. W. (Ky.) 608; Gibbons v. Bente, 22 L. R. A. (Minn.) 80; In re Naylor Mfg. Co., 135 Fed.

— No». Carr McNait, Judge. (1) Plaintiff’s entire case is based on his right to recover for the breach of a verbal, agreement as to the nature and quality of title to be conveyed made at the .time of or contemporaneous with the execution of the warranty deeds. It was error to admit any evidence of such contract or submit the same by instruction. All negotiations or agreements were merged in the deeds. Smyth v. Byroff, 156 Mo. App. 28; Brauckman v. Leighton, 67 Mo.

— lio». W. N. Evans, Judge. (1) The general rule as to the recovery of anticipated profits in a commercial business is that they are too remote, speculative and too dependent upon changing circumstances to warrant a judgment for their recovery. They may be recovered only when they are made reasonably certain by proof of actual fact which present data for a rational estimate of their amount.

— Hon. B. G. Thurman, Judge. ■ (1) Appellants’ motion to quash, the information should have been sustained, for the reason that no offense prohibited by the laws of the state of Missouri was charged therein. The intention was doubtless to charge a violation of section 4751, Revised Statutes 1909. But “dice and a blanket” are not such gambling devices as are prohibited by section 4750, Revised Statutes 1909, nor are they ejusdem generis with those devices.

<p>APPELLATE PRACTICE: Criminal Law: Examining Record Proper. In an appeal by defendant convicted of violating the Local Option Law, the transcript filed in the appellate court did not contain any bill of exceptions and there was nothing to examine but the record proper, which is examined and held to contain no substantial error.</p>

<p>1 CRIMINAL LAW: Gaming: Information: Practice. This case is similar in many respects to the case of State of Missouri v. Pete Brown et al., 163 Mo. App. 30. The same points were made by the defendants in this case as were made in the Brown case, and the rulings of the appellate court thereon are the same as in the Brown case.</p> <p>2. -: -: Sufficiency of Evidence. Defendants were prosecuted and convicted of gaming. On appeal it was contended that the trial court should have given a peremptory instruction to the jury to find the defendants not guilty. The evidence is examined and held sufficient to justify the trial court in submitting the case to the jury; that the defendants had a fair trial and the judgment should be affirmed.</p>

<p>1. CRIMINAL LAW: Suspending Sentence: Enforcing Punishment After Unreasonable Delay. In a habeas corpus proceeding it appeared that the petitioner had been convicted of illegally selling liquor in two eases. In case No. 43 a fine was assessed and in case No. 54 a jail sentence. The petitioner was imprisoned in case No. 43 for failure to pay the fine, but at a subsequent term the court made an order suspending further punishment and defendant was permitted to leave the state. No such order was made in case No. 54. The petitioner left the state in April 1909 and on his return in November, 1911, he was imprisoned under a capias execution issued upon the judgment in case No. 54. Held, that the order of court releasing the petitioner was void and unwarranted in law. Held, further, that under the facts in this case it would be against a sound public policy to enforce the judgment of imprisonment after the lapse of so long a time, where defendant could not be blamed for the delay and after society could no longer have any interest in the enforcement of the sentence.</p> <p>2. -: -: Courts: Usurping Pardoning Power. A trial court has no right in a criminal case to indefinitely suspend an execution after sentence, and judgment. To permit it to do so would be to usurp the pardoning power which it does not have. *</p> <p>3. -: Jail Sentence: Enforcing Punishment: Statute of Limitations. There is no Statute of Limitations as to jail sentences. The law proceeds upon the theory that the protection of society requires that speedy as well as certain punishment shall be meted out to offenders and it is expected that after final judgment imposing a jail sentence, imprisonment shall begin at once, unless a stay of execution be granted, which cannot exceed ninety days, or that the prisoner be paroled.</p> <p>4. -: -: -: Unreasonable Delay. A mere delay in the infliction of the punishment assessed in a criminal case is not sufficient reason for relieving the convicted party from the consequences of a judgment against him, unless the delay has been so great that society could derive no good from its enforcement; but when such delay has occurred without the fault of the defendant, although with his consent, the judgment will not be enforced.</p>

<p>CRIMINAL LAW: Appeal and Error. Where the defendant appealed from the judgment of conviction in a criminal action, but filed no bill of exceptions and there was no error in the record proper, the judgment will be affirmed.</p>

<p>CRIMINAL LA,W: Appeal and Error. Where the defendant appealed from the judgment of conviction in a criminal action hut filed no bill of exceptions and there was no error in the record proper, the judgment will be affirmed.</p>

— Hon, J. G. Sheppard, Judge. (1) It is negligence as a matter of law for one to climb over the couplings of cars standing over a public crossing. Reimer v. Railroad, 46 Fed. 344; Railroad v. Pinchin, 13 N. E. 677; Andrews v. Railroad, 12 S. W. 213; Smith v. Railroad, 7 N. W. 398; Lewis v. Railroad, 38 Md. 588.

— Eon. W. N. Evans, Judge. (1) Instruction No. 1 given on part of the defendant was erroneous because, first, scienter being the gist of defendant’s defense on a charge of fraud and misrepresentation, the instruction should have told the jury that if the representations made to the defendant were false, the defendant must have believed them to be true. Snyder v. Stemmons, 151 Mo. App, 156; Woods v. Letton, 111 Mo. App. 51; Cement Co. v. Stewart, 103 Mo.

Howell Circuit Court. — How. W. N. Evans, Judge. (1) This is a suit for the enforcement of a statutory penalty. It is a well settled and unbroken rule in such cases, that before the plaintiff can recover, he must establish all the facts upon which the law predicates the right of action. Dunkin v. Life Ins. Co., 63 Mo. App. 260.

— Hon. L. B. Woodside, Judge. (1) Respondent relied upon an alleged oral agreement which, he claimed was made in July, 1910', by which the farm was rented to him for a further term of one year, to begin on the first day of March, 1911, and terminating on the first day of March, 1912. Appellants denied making such agreement.

— Hon. C. H. Skinker, Judge. (1) In order that the defendant may be liable in any kind of action there must be either an express warranty ox fraud. Peers v. Davis Admr., 29' Mo. 184; Joliffs v. Collins, 21 Mo. 242; Tootle & Co. v. Lysaght' & Co., 65 Mo. App. 141; Brookings v. Shinn, 25 Mo. App. 277; Koontz v. Kaufman, 31 Mo. App. 397; Lindsay v. Davis, 30' Mo. App. 406; Grogan v. Darby, 135 Mo. App. 586.

— Hon. B. G. Thurman, Judge. (1) Appellants.’ motion to quash the-information should have been sustained, for the reason that no offense prohibited by the laws of the state of Missouri was charged therein. The intention was doubtless to charge a violation of section 4751, Revised Statutes 1909. But “dice and a blanket” are not such gambling devices as are prohibited by section 4750, Revised Statutes 1909, nor are they ejusdem generis with those devices.

— Hon. L. B. Woodside, Judge. (1) This action being on a penal bond nothing should be taken by intendment but all the facts relied on for a judgment should have been set out in the petition, and no such charges are made as this evidence attempts to prove. Parties can only recover, if at all, on their case as made by the pleadings. As said by the court in the case of Wright v. Fonda & Higgins, 44 Mo.

APPEAL AND ERROR: Criminal Law: Failure to File Bill of Exceptions. In a criminal case, where the transcript on file in the Court of Appeals shows that the defendant was given thirty days in which to file his hill of exceptions, hut it does not appear that the hill was ever filed and no copy of the same is found in the transcript, and no errors appear in the record proper, the judgment will be affirmed. Appeal from Dent Circuit Court. — Hon. L. B. Woodside, Judge.

— Hon. Carr McNatt, Judge. (1) The court erred in not giving- the demurrer in the nature of a peremptory instruction asked for by defendant at the close of plaintiff’s evidence. There was no negligence on the part of the defendant in constructing the crossing complained of. It is shown to have been constructed in a safe and substantial manner.

C. H. Skinker, Judge. (1) In civil actions the character of neither party, until put in issue, can be inquired into, unless it is put in issue by the proceeding* itself. Gutzwiller v. Lackmann, 23 Mo. 172; Roger and Gillis v. Troost’s Admr., 51 Mo. 470; Dtaclley v. McClure, 65 Mo. 241; Vawater v. Plultz, 212 Mo. 639; Black v. Epstein, 221 Mo. 304; Lumber Co. v. Hartman, 48 Mo. App. 647; Grocer v. Targart, 78 Mo. App. 166; Gordon v. Miller, 111 Mo.

--No». L. B. Woodside, Judge. If it be conceded that defendant gave plaintiff a parol license to build the fence on bis (defendant’s) land, the defendant bad the right at any time to revoke the license and to tear down the fence and the court erred in giving instruction No. 3 of its own motion. Pitzman v. Boyd, 111 Mo. 387; Desloge v. Pearce, 38 Mo. 588; Fowler v. Delapin, 78 Oh. St. 279, 87 N. E. 260; Crosdale v. Lanigan, 129 N. Y. 604, 26 Am.

— How. W. N. Evans, Judge. (1) Burden of proving the instrument rests upon defendants. They are required to show the testator was of lawful age and of sound mind, as well as' the due execution of the will. Harris v. Hays, 53 Mo. 9'6; Holton v. Cochran, 208 Mo. 410; Mowry v. Norman, 204 Mo. 189'; Cowan v. Shaver, 197 Mo. 212.

— Hon. W. N. Evans, Judge. (1) On the whole record it was undoubted error on the part of the court to refuse plaintiff’s peremptory instruction. Williams v. Williams, 132 Mo. App, 266; Coleman v. Reynolds, 207 Mo. 463; Maloy v. Sweazea, 123 Mo. App. 179; Bank v. Eubanks, 124 Mo. App. 499; Strauss v. Gum Co., 134 Mo. App. 110.

— Eon. David E. Blair, Judge. (1) In an action of replevin if the plaintiff has obtained possession of the property the defendant must in his answer claim it and demand a return thereof, otherwise the court cannot upon a finding in his favor give judgment against the plaintiff for its value. Young v. Glasscock, 79' Mo. 574.

— lion. David E. Blair, Judge. (1). The casé was clearly decided in favor of the defendant upon the ground that the engineer’s estimates were not filed prior to the adoption of the respective resolutions for the work. This was error. The estimates may be filed at any time prior to the letting of the contract. R. S. 18991, sec. 5859; Kirksville v. Coleman, 103 Mo.

- — Eon. G. E. Slcinker, Judge. (1) Section 9300, Revised Statutes 1909, grants an extraordinary latitude of discretion to the mayor and board of aldermen in making extension of city limits, which, discretion is not amenable to judicial review, except in a capital case. State ex rel. v. Birch, 186 Mo. 221.

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

— How. H. G. Thurman, Judge. (1) The statute of Missouri governing this case authorizes a change of beneficiary, provided it is done in the manner directed by the by-laws of the associa- . tion. R. S. 1899, sec. 1417.

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

— Hon. Wm. D. Rusk, Judge. The petition failed to state facts sufficient to constitute a cause of action in this, that the petition does not allege that Dr. Harry E. Des Mond was licensed by the proper authorities to practice medicine in the state of Missouri and the evidence failed to show that he was authorized to practice medicine in said state.

<p>ADMINISTRATION: Allowance to Widow: Prenuptial Contracts. Plaintiff filed a claim in the probate court against the estate of her deceased husband for an allowance in lieu of provisions. Before marriage she had entered into a contract with her husband covering the rights of each in the property of the other, but no mention was made of the allowance to widows provided in section 114, Revised Statutes 1909. Held, that, in the absence of express language in a prenuptial contract, it will be presumed that the parties did not include the absolute property of the wife as one of her marital rights in the property and estate of her husband.</p>

— Now. William K. Amick, Judge. (1) The demurrer to the evidence offered by the city should have been sustained for the reason that the plaintiff, a pedestrian, was not traveling in that part of the street set apart for pedestrians, and the city is not held to anticipate such use as plaintiff made of the street. Holding v. St. Joseph, 92 Mo. App. 143'; Woodson v. Railroad, 224 Mo. 685'. (2) The court should have given instruction number one.

<p>Appeal from Chariton Circuit Court. — Now. Fred Lamb, Judge.</p>

— Hon. Francis H. Trimble, Judge. (1) In this action plaintiff could not recover for injuries or damages to his buggy and harness. B. S. 1909, sec. 3145; Huss v. Bailroad, 84 Mo. 111. . (2) Plaintiff was not entitled to recover double damages for injuries to his buggy. B. S. 1909, sec. 3145; Huss v. Bailroad, 84 Mo. 111. (3) Plaintiff was not entitled to recover for any injuries to his horse. There is no proof of an actual collision.

<p>Appeal from Macon Circuit Court. — Hon. Nat M. Shelton, Judge.</p>

— How. William G. Ellison, Judge. (1) The court erred in refusing to give appellant’s peremptory instruction at the close of all the evidence. Egan v. Ins. Co., 80 N. W. 1020; 105 Wis. 217; Thiebaud v. Woodmen of the World, 69 Pac. 348, 65 Kan. 332; W. O'. W. v. Hruby, 96 N. W. (Neb.) 998; W. O. W. v. Huyler, 24 Ind. App. 109; Mason v.. Supreme Lodge, 109 111. App. 10; Fletcher v. Sovereign Camp, 81 Miss. 249. Same facts passed on in 78 Miss. 377 and 111 Fed. 773.

<p>GUARDIAN: Sale of Personal Property: Guaranty: Rescission. If, at a guardian’s public sale of a pair of mules, be, for tbe purpose of inducing a purchaser to bid them in, guarantees they are sound when they are worthless from disease, the purchaser may, upon discovering the .unsoundness, apply to the probate court for a return of the purchase money on his returning the mules.</p>

<p>Appeal from Clinton Circuit Court. — Hon. Alonzo D. Burnes, Judge.</p>

<p>Appeal from Grundy Circuit Court. — Hon. G. W. Wanamaker, Judge.</p>

<p>1. NOTE: Surety: Notice to Sue: Duplicate Copies. A notice by a surety to the payee of a promissory note, requiring him to sue tbereon witbin thirty days, must be in writing, but need not consist of two copies, one to be served on the payee and the other to be retained by the surety. It is sufficient that the payee is properly served with a notice in writing.</p> <p>2. -:-: Lost Notice: Verbal Testimony. If a written notice by a surety to a payee in a note, to sue thereon within thirty days, is lost by the payee, the surety may prove its service and contents by oral testimony.</p>

— Hon. W. 0. Thomas, Judge. (1) The defendant was entitled to go to the jury on the question of self-defense. Callahan v. Billat, 68 Mo. App. 435; Norris v. Whyte, 158 Mo. 20’; Keep v. Quallman, 68 Wis. 451, 32 N. W. Rep. 233. (2) The defendant was not liable for the result of an altercation provoked by plaintiff.

— Hon. B. G. Thurman, Judge. The court erred in overruling defendant’s motion to set aside the default judgment for the following reason: The answer, in contemplation of law, was filed as soon as it came into the clerk’s possession for that purpose. Therefore, the answer was on file several days prior to the first day of the term, and the court had no -authority to render the -default judgment. Baker v. Henry, 63 Mo. 517; Building and Planing Mill Co. v. Huber, 42 Mo.

— How. John M. Williams, Judge. (1) The act of Carter, defendant’s servant, in placing the box and its contents under plaintiff’s porch, not being within the course or scope of his employment in defendant’s business, plaintiff cannot recover in this action and the demurrers to the evidence should have been sustained.

<p>1. CRIMES AND PUNISHMENTS: Disturbance of Peace: Instructions. Defendant was convicted of disturbing tbe peace of several persons who were at the time engaged in erecting a hitch rack near a church on land claimed by defendant. The latter ordered the others to leave, using abusing language, drew his knife and shoved one of them from the disputed, territory. It was not shown which of the disputants was the owner of the disputed territory. The'instructions for the state required the jury to find that there was no dispute about the ownership of the ground. Held, that the instructions were erroneous, as it was admitted that the ground was in dispute.</p> <p>2. -: -: Abusive Language. One who uses violent language, though on his own premises, may be guilty of a disturbance of the peace, if the person to whom it is addressed is rightfully there, but not so, if such language is used by one on his own premises towards an intruder.</p>

<p>Appeal from Jackson Circuit Court. — Hon. R. B. MiddlehrooJc, Judge.</p>

<p>1. HOMESTEAD: Antecedent Debts: Exemptions. A homestead is not exempt from debts contracted prior to the acquisition of the homestead.</p> <p>2. -: Jurisdiction: Equity. The circuit court has no jurisdiction to decree that judgments against an estate for debts of the deceased, be enforced as a prior lien to any claim of homestead on the part of the widow. Probate courts alone have jurisdiction of the administration of the estates of deceased persons and the statutés provide a complete remedy for the determination of homestead rights.</p>

— JTo». G. A. Calvird, Judge.- An indictment in the language of the statute is sufficient only where all the facts which constitute the offense are set forth in the statute. The indictment should not only follow the language of the statute in this case, but it should descend to particulars and allege for what particular, purpose this liquor was to be used. State v. Krueger, 134 Mo. 263; State v. Haywood, 83 Mo. 299. Nothing is taken by intendment.

<p>Appeal from Schuyler Circuit Court. — Hon. Nat. M. Shelton, Judge.</p>

— Hon. William D. Bush, Judge. (1) The city had never accepted and improved Scott street for use by the public. Curran v. City of St. Joseph, 143 Mo. App. 618; Downend v. Kansas City, 156 Mo. 60; Ely v. St. Louis, 190 Mo. 213; Benton v. St. Louis, 217 Mo. 687. (2) The written notice was defective in its failure to properly locate the defect.

— Hon. Alonso D. Bwrnes, Judge. Defendant’s demurrer and its objection to any evidence under the pleadings should have been sustained. Corcoran v. Railroad, 138 Mo. 417-, Boyle v. Railroad, 21 Mo. App. 416; Hurd v. Chappell, 91 Mo. App. 322; Manz v. Railroad, 87 Mo. 278; Ehret v. Railroad, 20' Mo. App. 251; Ward v. Railroad, 91 Mo. 168; Brassfield v. Patton, 32 Mo.

Louis City Circuit Court. — Hon. Matt. O. Reynolds, Judge. (1) The four essential facts for the plaintiffs to prove in order to sustain their claim to an easement by prescription are: First, user for the prescribed period; second, that the user was adverse; third, that it was under a claim of right.; and fourth, notice to the owner of the user and of its character and the claim of right. 188 Mo. 704.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) The judgment should be reversed and the cause remanded as the jury was not instructed according to the true law of the case and the verdict was for the wrong party. Schmidt v. Banlrin, 193 Mo. 254; Shepherd v. Transit Co., 189' Mo. 362; Porter v. Eailroad, 199 Mo. 82.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. All of the decisions and text-books announce the rule that when a party to a contract with concurrent' and dependent conditions comes into court and asserts that he is invested with a right of action on such contract, he must allege and prove, either, first, an offer to perform on his part and a mere failure to perform on the part of the other party to the contract.

<p>1. DEATH: Life Insurance: Evidence: Proof of Death: Burden of Proof. In an action on a life insurance policy, -where there is no direct and positive proof that insured is dead and no room for the presumption of death from seven years’ unexplained absence, the presumption is, that insured is alive, and the burden to prove the contrary rests on the plaintiff.</p> <p>2. -: -: -: -: Modes of Proof. In the absence of direct or positive proof, the fact of death may be established by proof that the person whose death is in issue was, at last accounts, in a position of particular peril, as, for example, that he was dangerously ill, or was exposed to great peril of disease or accident, or even that he was near a river, despondent and threatening to kill himself; or by proof that his character, habits, condition, affections, attachments, etc., were such as to render his absence from home and family for any cause, other than death, improbable.</p> <p>3. -; -: -: -: Question for Jury, When. In an action on a life insurance policy, where plaintiff seeks to show the death of insured by proving that he had been absent from home and family, unheard of, for over two years, and that his character, habits, condition, affections, attachments, etc., were such as to render his absence for any cause, other than death, improbable, in order to justify a refusal to submit the question of death to the jury, the insufficiency of the showing made to create tne necessary improbability of life’s continuance must be so apparent that reasonable minds would not differ concerning it; and when the evidence is such that the question becomes dependent upon shades of character and condition, degrees of affection or strength of áttachment, or of the comparative controlling influences of different affections or attachments, and reasonable minds could well differ as to absence without death being probable, under the circumstances disclosed, the question should be submitted to the jury.</p> <p>4. TRIAL PRACTICE; Insufficiency of Evidence: Directing Verdict. In order to warrant a direction of a verdict because of the insufficiency of the evidence to warrant a recovery, the evidence must be so deficient that reasonable minds would agree that it is insufficient.</p> <p>5. DEATH: Life Insurance: Proof of Death: Sufficiency of Evidence. In an action on a life insurance policy where there was no direct and positive proof of the death of insured, but plaintiff sought to show his death by proving that he had been absent from home and family, unheared of, for over two years, and that his character, habits, condition, affections, attachments, etc., were such as to render his absence for any cause, other than death, improbable, evidence held sufficient to warrant a recovery by plaintiff.</p> <p>6. -: -: -: Instructions: Singling Out Testimony. In an action on a life insurance policy, where the petition alleged insured died on a certain day, and plaintiff did not undertake to prove such death by direct and positive proof, but sought to show it by proving that insured had been absent from home and family, unheard of, for over two years from the date mentioned in the petition, and that his character, habits, condition, affections and attachments, etc., were such as to render his absénce for any cause, other than death, improbable, it was proper to refuse to give an instruction offered by defendant, that if insured was seen alive after the date mentioned in the petition, plaintiff could not recover, for the reason it savored too strongly of singling out the testimony of one of defendant’s witnesses, who testified he had seen insured two days after such date, and laid too much stress upon the exact day of insured’s death; a finding that he died on or about the date alleged being sufficient, and defendant moreover having, by its admissions, made it manifest that the exact time of death was not deemed of any particular importance.</p> <p>7. INSTRUCTIONS: Refusal: Singling Out Testimony: Contrary to Admissions. An instruction, which singles out certain testimony and which is contrary to admissions made by the party asking it, is properly refused.</p> <p>8. APPELLATE PRACTICE: Admissions at Trial: Binding Effect: Life Insurance. In an action on a life insurance policy, where proof of death was based on insured’s unexplained absence, defendant is not entitled, on appeal, to deny plaintiff’s right to an amount provided in the policy for placing a monument at insured’s grave, because there was no grave, where a claim for such amount was made in the petition and defendant stated at the trial the sole issue in the case was whether or not insured was dead.</p> <p>9. -: -: -. A right conceded at the trial cannot be attacked on appeal.</p>

— Horn. jDavid PL. Eby, Judge. (1) Where husband and wife live together, he is presumed to be the head of the family, and regardless of ownership he is presumed to be liable for an unlawful use… Held: this was insufficient to sustain a conviction for keeping a disorderly house. Ramey v. State, 45 S. W. 489, 39 Tex. Cr. R. 200. The demurrer to the evidence should have been sustained. There is not sufficient evidence to support a conviction and the judgment should be reversed.

<p>Appeal from Cape Girardeau Court of Common Pleas. —Hon. Robert G. Ranney, Judge.</p>

<p>1. APPELLATE PRACTICE: Conclusiveness of Finding, of Facts. A finding of fact by tbe trial court on conflicting evidence will not be disturbed on appeal.</p> <p>'2. WATERS AND WATERCOURSES: Negligence: Eavesdrip: Duty of Owner. Although the owner of premises has the right to protect them against Tain or snow, even though incidental injury may result to adjacent property in consequence, yet he must respond in damages to one injured through his negligent breach of duty in the matter; and where one constructs his building so as to cast water therefrom upon the land of his neighbor, or, although he places proper eave-troughs or gutters upon his building for leading off the water upon his ground but negligently permits them to become defective or neglects to maintain them in a reasonably proper condition, thereby permitting the water accumulated upon the roof of his building to be precipitated upon the adjacent premises, he is liable for the damage caused thereby.</p> <p>3. INSTRUCTIONS: Refusal: Covered by Other Instructions: Water and Watercourses. In an action to recover damages resulting to a wall of plaintiffs building, from water precipitated on it from a defective gutter on defendant’s adjacent property, which was tried before the court without the aid •of a jury, a requested instruction, that plaintiff could not recover unless the wall was upon his premises, was sufficiently covered by an instruction that, unless it appeared that defendant had collected water on its premises by artificial means and east it upon plaintiff’s premises, no recovery could be had, and hence the refusal of the former instruction was not error.</p> <p>4. -: -: Not Based on Facts. An instruction, which hypothesizes facts, concerning which there is no evidence, and which is repugnant to admissions made by the party offering it, is properly refused.</p> <p>5. BILLS OF EXCEPTIONS: Contradictory Recitals: Construction. Where a bill of exceptions recited that a certain instruction was refused and that the party offering it saved exception to such refusal, but subsequently recited that the instruction was given and that the indorsement of the word “refused” on it was a clerical error, the latter recital, being the more recent, will be accepted by the appellate court as setting out the truth of the matter.</p> <p>6. -: Verity: Bystanders’ Bill. If either of the parties is not satisfied with the bill of exceptions as the trial judge would make it read, the statute (section 2031, Revised Statutes 1909) provides for a bystanders’ bill; and when no such bill is taken, the one signed by the trial judge, properly filed and made part of the record, imports absolute verity, and the truth of its statements is not to be doubted.</p>

<p>1. LOCAL OPTION: Simultaneous Pendency of Indictment and Information: Identity of Offenses. An indictment for the violation of the Local Option Law, which charged that defendant, on November 14, 1908, sold one point of whiskey for the sum of fifty cents (the purchaser not being named), and an information for the violation of said law, subsequently filed, which charged that defendant, on November 14, 1908, sold one half pint of whiskey for twenty-five cents and one half pint each of other named intoxicating liquors for the sum of twenty-five cents-each (the purchaser not being named), did not show on their face that they charged the same offense against defendant.</p> <p>2. -: Separate Offenses. Each separate sale of intoxicating liquor in violation of the Local Option Law constitutes a dis- ■ tinct offense, for which a separate presentment and conviction may be had.</p> <p>3. LOCAL OPTION: Simultaneous Pendency of Indictment and Information: Identity of Offenses. An appellate court may not, under section 5055, Revised Statutes 1909, quash an information charging a sale of intoxicating liquor, in violation of the Local Option Law, on the ground a pending indictment .charged the same offense against defendant, unless it conclusively appears that the two alleged sales were in fact one and the same sale.</p> <p>4. INDICTMENTS AND INFORMATIONS: Information: Filing on Information and Belief. Under section 5057, Revised Statutes 1909, authorizing a prosecuting attorney to file an information charging a person with a crime, he may file an information on information and belief, without hearing the evidence upon which he bases the information.</p>

— Hon. Charles D. Stewart, Judge. (1) The information in this case, was illegally filed by the prosecuting attorney, because at the time of the filing of same, July 26, 1909, there was then pending in the circuit court of Knox county, Missouri (the same court), and indictment against the defendant for the same offense charged in said information. State v. Grieseke, 209 Mo. 331; R. S. 1909, section 5055; State v. Harvey, 214 Mo. 403.

Louis City Circuit Court. — Eon. Eugene McQuilUn, Judge. (1) The court erred in allowing plaintiff to take a nonsuit after the cause had been finally submitted. E. S. 1909, sec. 1980; Strottman v. Eailroad, 128 S. W. 192; Lawyers Co. v. Gordon, 173 Mo. 143; Ivory v. Delore, 26 Mo. 505.

Louis City Circuit Court. — Hon. Echvin W. Lee, Judge. (1) • The appeal was properly allowed under the provisions of section 289, Revised Statutes 19091. (2) The jurisdiction of the circuit court to entertain the appeal herein is conclusively established by section 3956, subdivision 4, Revised Statutes 1909. The appellate jurisdiction of circuit courts is not derived from section 3956, Revised Statutes 1909. Kenrick v. Cole, 46 Mo. 85; 2 Woerner on Administration, sec. 543'.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) This being a proceeding in equity to construe a deed which created a trust e.state and to obtain directions of court to enable the trustees to properly administer their trust and protect them from possible claims of the beneficiaries, the court had full power and authority to construe said deed and render a decree in said cause which should be binding and conclusive upon all the parties thereto whether trustees or…

Louis City Circuit Court. — Hon. ' George H. Williams, Judge. The court erred in giving instruction 3, on behalf of plaintiff-and over defendant’s objection, because: (a) Said instruction allows a recovery for injuries the evidence shows that plaintiff has sustained, although they were not the result of her fall from the car in question, (b) Because it submits to the jury elements of damages not pleaded in the petition. Muth v. Railroad, 87 Mo.

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) The petition does not state facts sufficient to constitute a cause of action against the defendant, in that it' merely charges that the negligent act complained of was committed by one of the “defendant’s agents, servants and employees” instead of charging that it was done by defendant or stating facts showing that the servant was at the time acting in the scope of Ms employment as defendant’s servant.

Louis City Circuit Court. — Row. William B. Biomer, Judge. (1) The ground of plaintiff’s action is negligent delay. There was no evidence to sustain that ground. Conceding that there was evidence of delay in the transportation, there was no evidence that such delay was caused by negligence, and for aught that appears in the record the delay may have been unavoidable.

'Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.

Louis City Circuit Court. — Eon. George G. Hitchcock, Judge. (1) A dividend, properly declared, becomes, from tbe time of its declaration, an enforcible claim against tbe company, whether or not a specific fund is set aside out of which to pay it. McLaran v. Mill Co., 117 Mo.

— Hon. David H. Eby, Judge. (1) Instructions should cover the whole case and should not be so framed as to single out isolated portions of the evidence not in themselves decisive and make the verdict turn upon them. Thompson on Trials, sec. 2328; Weil v. Schwartz, 21 Mo. App. 382; Chappell v. Allan, 38 Mo. 222; Williams v. Stephens, 38 Mo. App. 164; Judd v. Railroad, 23 Mo. App. 62; Capp v. Hardy, 32 Mo. App. 592; Gage v. Mears, 107 Mo. App. 140; McKnight v. Hudson, 116 Mo.

<p>BILLS OF EXCEPTIONS: Filing Out of Time: Appellate Practice: Scope of Review. Where a bill of exceptions, filed in 1910, was filed after tbe expiration of the time granted in which to file it, the evidence and proceedings at the trial were not open to review.</p>

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The condition of the account between Bird and the Export Company was an irrelevant issue, Even though the Export Company was indebted to Bird (which is by no means conceded) this did not authorize him to appropriate credits or funds of his principal in liquidation of his account. Benny v. Pegram, 18 Mo. 191.

— Eon. David E. Eby, Judge. (1) The corporate existence of both the G-liddenFelt Manufacturing Company and Francis T. Simmons & Co., was squarely put in issue by defendant’s second amended answer upon which the cause was tried, which answer was duly verified by affidavit; therefore it was essential that plaintiff should “prove the fact of such incorporation” in order to escape the deadly effect of the demurrers. R. S. 1909, sec. 1985; White v. Lodge, 301 Mo. App. 682.

Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge. (1) The subscription to the capital stock of a corporation in Missouri is an asset of the company, , in which, by virtue of the subscription, the company, all individual members thereof, and all creditors, acquire an interest. Such a contract is one that can not be canceled or relinquished without the consent of all interested parties.

Louis City Circuit Court. — TIon. Rugo Muench, Judge. (1) The assignment of the policy was null and void, because no officer of the company assented to same.

<p>The opinion of tlie Springfield Court of Appeals in this ease (144 Mo. App. 474) is adopted as tlie opinion of tlie court.</p>

<p>The opinion of the Springfield Court of Appeals in this case (154 Mo. App. 440) is adopted as the opinion of the court.</p>

<p>The opinion of the Springfield Court of Appeals in this case (152 Mo. App. 567) is adopted as the opinion of the court.</p>

<p>Appeal from Scott Cirenit Court. — Hon. Henry C. Riley, Judge.</p>

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

— Hon.. G. H. Slcinher, Judge. (1) Gammon’s testimony that he signed the note sued on at the request of plaintiff and merely as surety was erroneously excluded. Coats v. Swindle, 55 Mo. 31.

— Hon. David E. Blair, Judge. • (1) Plaintiff lias brought and tried Ms ease on the theory of defendant’s liability for the negligence of Breedlove, Ms alleged fellow-servant, he must so-recover, if at all, and therefore, the fourth and fifth instructions, which ignore that theory are wrong. Latapie-Vignax v. Saddlery Co., 193 Mo. 1; Hamilton v. Railroad, 114 Mo. App. 509; Crow v. Railroad, 212 Mo. 610; Percell v. Railroad, 126 Mo. App. 49.

— Mon- W. N. Evans, Judge. (1) The universal rule is that a principal is liable for the neglect, fraud or other wrongful act of his agent in the course of his employment, though the principal did not authorize the specific act. G-aretzen v. Duenckel, 50 Mo. 107.

— Mon. G. M. Skinker, Judge. (1) The word “at” is a word of somewhat indefinite meaning whose significance is generally controlled by the context and attending circumstances denoting ■the sense in which it is nsed. Used in reference to place it often means in or within, bnt its primary idea is nearness or proximity and it is commonly used as the equivalent of near or about.

— No». James T. Neville, Judge. (1) Justices of the peace are denied by the statute law of this state jurisdiction of any strictly equitable proceeding. R. S. 1909, sec. 7397; Newberger v. Friede, 23 Mo. App. 636. (2) This being a proceeding, instituted for the sole purpose of enforcing contribution between the stockholders of an insolvent corporation, is strictly equitable in its nature and maintainable only in a court having chancery jurisdiction.

— Wo». A. W. Waller, Judge. (1) Where the court gives two reasons, as in this case, for its actions in granting a new trial and those reasons are: 1st. Because the court erred in not giving the instruction, in the nature of a demurrer offered at the close of all the evidence, and 2nd, because the verdict is against the weight of the evidence, the one that the court erred in not giving the instruction in the nature of a demurrer offered at the close of all the evidence, is…

<p>JUSTICE COURTS: Appeals. The circuit court acquires no jurisdiction of a cause on appeal from a justice court unless a bond and affidavit were made and filed with the justice within the time provided for the taking of such appeal, or unless an order of the justice granting an appeal was made within such time.</p>

<p>1. APPEARANCES: General and Special: Continuance. After a special appearance on a motion to dismiss was overruled, defendant appeared and consented to a continuance of the cause to the next term, and it was held to waive notice by summons.</p> <p>2. REPLEVIN: Petition and Affidavit: One Paper. In replevin, the petition and affidavit may be on one paper, the petition containing all that need be stated in an affidavit, the affidavit, itself, following the petition.</p> <p>3. -: -: Prayer: Jurisdiction: Amendment. A petition and affidavit in replevin being on one paper, the fact that the petition does not contain a prayer for a return of the property is not so fatally defective as to destroy jurisdiction, and an amendment by adding a prayer may properly be allowed.</p> <p>4. -: -: Description: Return: Judgment. If a petition in replevin sufficiently describes, the property, the fact that the sheriff’s return and the judgment describe the same property more minutely, will not vitiate the proceedings, where the judgment recites that it is the same property described in the petition.</p>

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

<p>1. PRINCIPAL AND AGENT: Liability of Agent. Where an agent fails to perform the duties pertaining to his employment and his principal suffers loss, the agent is liable in damages.</p> <p>2. -: -. When a loss results to a principal from his agent’s failure to pursue the instructions given him, a cause of action arises in favor of the former.</p>

<p>Appeal from Howard Circuit Court. — Hon. A. H. Waller, Judge.</p>

<p>Appeal from Nodaway Circuit Court. — Hon. William C. Ellison, Judge.</p>

<p>Original Proceeding. Habeas Corpus.</p>

<p>1. INSURANCE, ACCIDENT: Notice of Accident by Beneficiary. The beneficiary in an accident insurance policy is not required to give any notice to the company of an injury to the insured until a claim matures by the death of the latter.</p> <p>2. -: -: -. It would be unreasonable and absurd to require the wife of the insured, who is the beneficiary of the death indemnity in an accident insurance policy, to notify the company of a possible future death claim every time her husband receives an injury.</p> <p>3. -: Righf to Hold Autopsy. Where the contract of insurance against accident does not give the company the exclusive right to perform an autopsy on the insured in case death ensues, nor require the beneficiary to notify the company of an intention to have one performed, the holding of such autopsy without notice to the company will not forfeit the policy.</p>

— Eon. B. G. Thurman, Judge. Where one party to a cause of action is dead, the agent of the other party is incompetent to testify. Grubbs v. Ray, 141 S. W. 17; Carroll v. Railroad, 137 S. W. 303. In an action for breach of covenant of warranty of seizin, the measure of damages is limited to the consideration paid. Allen v. Kennedy, 91 Mo. 324; Coleman v. Lucksinger, 224 Mo. 1; Lambert v. Estes, 99 Mo. 604.

— Mon. John M. Williams, Judge. The court erred in refusing to submit the defendant’s right of self-defense to the jury. Even if plaintiff’s'testimony was believed by the jury they would have been warranted in finding for the defendant on the ground of self-defense if the instruction had permitted them to do so. The law requires juries to find the facts by weighing all the testimony from whatsoever source it may come.

— Eon. John M. Williams, Judge. (1) The fact that the bond ox surety agreement sued on was made to the board of managers of the Confederate Soldiers’ Home instead of to the state of Missouri, does not render it invalid or preclude recovery thereon. Waterman v. Prank, 21 Mo. 108; Barnes v. Webster, 16 Mo. 258; Henoch v. Chaney, 61 Mo. 129. A bond of a county treasurer executed to the state instead of to the county, as required by statute, is good as a common law bond.

<p>1. NEGLIGENCE: Defective Sidewalks: Ice and Snow. Plaintiff sued for damages for injuries received as the result of a fail on an icy sidewalk. Snow and sleet had accumulated on the sidewalk, had been trodden on, and had partly melted and formed ice, and the surface was rough and uneven. This condition had existed for a long time prior to the time plaintiff fell, and her fall was occasioned by the uneven and slippery condition of frozen snow and ice on the sidewalk. Held that the court did not err in refusing to direct a verdict for defendant.</p> <p>2. -: -: -. Where the gravamen of the charge ' of negligence was the unsafe condition of the surface of the sidewalk by reason of the accummulation of ice and snow thereon, and_ that plaintiff’s injury was due to that condition, it is entirely immaterial whether the walk itself was in good or poor condition.</p> <p>3. -: Notice of Injury. The notice required to he given of a claim for damages against the city of St. Joseph should be liberally construed, and where it state's the time, place- and character and circumstances of the injury, it is sufficient.</p> <p>4. -: -: -. An instruction which required the jury to find that the notice served upon the city was given the defendant within sixty days after the alleged injury, but did not require the jury to find that said notice stated the place where, a time when, and the circumstances of plaintiff’s injury, is not erroneous. It is for the court to say whether or not the notice was sufficient.</p>

<p>1. CARRIERS OF PASSENGERS: Ejecting Passengers. Plaintiff and his wife were ejected, between stations, from one of defendant’s passenger trains by the conductor thereof, because their tickets did not entitle them to transportation to a station on defendant’s line where that train stopped. They were directed, after purchasing their tickets, by one of defendant’s employees, to enter one of the cars of this train, and did not know that it was not scheduled to stop at their destination. In putting them off, the conductor was angry and discourteous, and used abusive language to them. Held, that plaintiff was entitled to recover punitive damages.</p> <p>2. —:-: Instructions: Non-direction. The failure of the court to instruct the jury as to what was meant by the terms punitive and exemplary damages amount, at most, to mere non-direction, and the opposite party may, if he desires, supply the omission; otherwise he has no just ground for complaint.</p>

<p>1. MANDAMUS: County Counselor: Salary. Where the county court refuses to issue its warrant to the duly appointed county counselor for his salary, his remedy is by mandamus, and not by action at law to recover his salary.</p> <p>2. -: -. The right to the salary which the statute prescribes shall be paid to a public officer exists as a creature of law and as an incident to the office, and that salary is to be paid him whether or not he neglects his official duties, or performs services for which it is no fair compensation.</p> <p>3. COUNTY COURTS: County Counselor: Salary. A county court is bound to issue to a duly appointed county counselor a warrant for each month for the amount of his salary then due, whether there is any money in the treasury or not.</p> <p>4. -: County Clerk. The county court cannot avoid the discharge of its duty to issue its warrant to the county counselor for his salary each month on the ground that the clerk of the court did not present the warrant for signature.</p>

<p>Appeal from Clay Circuit Court. — Hon. Francis H. Trimble, Judge.</p>

— Son. Arch B. Davis, Judge. (1) The petition states no facts constituting any cause of action. Welch v. Mastin, 98* Mo. App. 277; Castlio v. Greenburg, 51 Mo. 163; Hoffman v. London, 96 Mo. App. 189; Eobyn v. Chrenide, 127 Mo. 390. (2) No application was ever made to the probate court for her absolute allowance of four hundred dollars until the personal property had all been exhausted by the payment of debts.

<p>ADULTERY: Circumstantial Evidence: Instructions. An instruction on circumstantial evidence which is not alone relied upon by the' State for conviction, need not be given at all by the court. But if, nevertheless, the court should give one on that head, it should embrace all the elements governing the probative force of such evidence.</p>

<p>Error to Cass Circuit Court.- — Hon. N: M. Bradley, Judge.</p>

— Eon. Charles A. Benton, Judge. A petition on an executory contract for .the sale of land for a breach thereof, should aver that the plaintiff had a good and sufficient title, which he was ready and willing to convey, in order to state a cause of action. Davis v. Watson, 89' Mo. App. 15.

<p>Appeal from Cole Circuit Court. — Eon. John M. Williams, Judge.</p> <p>(1) The demurrer to the evidence should have been sustained. Mockowik v. Eailroad, 196 Mo. 567; Reams v. Dry Goods Co., 99 Mo. App. 405; Young v. Eailroad, 93 Mo. App. 267; Pullman Co. v. Barker, 4 Colo. 344; Terrintine v.. Eailroad, 92 N. C. 638; Mewethy v. Carrier Co., 86 N. W. 827; O’Donnell v. Eailroad, 42 S. W. 846. (2) The court erred in permitting the plaintiff to ask hypothetical questions which called for conclusions of the expert witnesses and erred in permitting the expert witnesses to give their conclusions that exposure to the cold in the car accounted for the recurrence of plaintiff’s ailment. Glasgow v. Railroad, 191 Mo. 360; Smart v. Kansas City, 208 Mo. 200; Roscoe v. Railroad, 202 Mo. 594; Holtzen v. Railroad, 140 S. "W. 756; Thomas v. Railroad, 125 Mo. App. 137; Spaulding v. Edina, 122 Mo. App. 69; Smith v. Kansas City, 125 Mo. App. 158. (3) The court erred in giving instructions to the jury on behalf of the plaintiff which permitted the jury to find for the plaintiff if they found that the car was not sufficiently heated for the comfort of plaintiff in her enfeebled condition. The defendant owed the plaintiff no higher duty than it did any other passenger unless it had notice of her infirmity. There was no evidence tending to show that it had such notice. The instructions' permitted the jury to find the defendant liable without requiring a finding that defendant had notice of the enfeebled and sickened condition of plaintiff and permitted a recovery on the part of plaintiff even though' the car was sufficiently warm for the comfort and safety of one in ordinary health. This was error. Young v. Railroad, 93 Mo, App. 267; 2 Hutchinson on Carriers, sec. 992; Hanks v. Railroad, 60 Mo. App. 274; Denning v. Railroad, 80 Mo. App. 156; Matthews v. Railroad, 115 Mo. App. 473; 6 Cyc., p. 599.</p> <p>(1) The trial court rightly overruled the demurrers to the evidence and permitted the case to go to the jury. It was the duty of the defendant, as a common carrier of passengers, to keep the car in which plaintiff was a passenger reasonably warm and comfortable, and it is responsible for injuries to plaintiff for peglect of such duty. Taylor v. Railroad, 38 S. W. (Mo.) Rep. 304; Coast Line v. Powell, 127 Ga. 805 ¡ Dillingham v. Hodges, 26 S. W. (Tex.) 86; 2 Hutchison on Carriers (3 Ed.), sec. 922; 3 Thompson on Negligence, p. 302. (2) It is true that Dr. Helbin'g did, in his answer, state that the exposure to the cold in the car “undoubtedly caused the return.” But the question being in proper form, if defendant desired to avail itself of an objection to the answer as an improper one, it should have moved to strike it out, and not having done so it waived objection to it. Corbett v. Eailroad, 26 Mo. App. 621; Yette v. Johnson, 43 Mo. App. 300; State v. Purcell, 131 Mo. 312; State, v. Eisenhour, 132 Mo. 141.</p>

— Hon. A. H. Waller, Judge. (1) A sufficient petition and bond for removal having been filed in due time by The Atchison, Topeka & Santa Fe Railway Company, it was the duty of the court below to proceed no further, except to make an order or removal, and all subsequent proceedings were coram non judice. Wecker v. Enameling’ Co., 204 U. S. 176; Donovan v. Wells Fargo & Co., 169 Fed. Rep. 363; Hunter v. Railroad, 188 Fed. Rep. 645; Shaver v. Milk Co., 185 Fed.

<p>Appeal from Carroll Circuit Court. — Hon. Francis H. Trimble, Judge.,</p>

— Hon. William. G. ElUson, Judge. The acceptance to close a contract on an offer must be absolute, unambiguous, unequivocal, without condition or reservation, and in exact accordance with the offer. In this case Bobart never accepted defendant’s proposition of sale as required by law, so that defendant would be bound to pay plaintiff commission upon the proposed exchange of farms. McLean v. Gy. M. Ass’n, 64 Mo.

<p>Appeal from Randolph Circuit Court. — -Hon. A. H. Waller, Judge.</p>