Volume 165 — Missouri Reports

— Hon. D. II. Eby, Judge. (1) The statement made by Burns in tbe presence of Weaver and Logan while they were confined in the city calaboose at Louisiana, a year or so prior to the night Pew was killed, and which was to the effect that “he (Bums) would get even with the police of Louisiana if it took twenty years,” should not have been admitted in evidence in trial against Weaver.

<p>1. Summons: service: with member of family. A judgment by default rendered on a service of summons in which the officer states that he executed the same “by leaving a true copy of the within writ and petition as furnished by the clerk with a member of defendant’s family over fifteen years of age,” etc., is null and void, since the service omits the words “at his usual place of abode.”</p> <p>2. Stipulation as to Invalid Judgment: estoppel. Under a judgment by default against defendants’ father, invalid because of defective service, the land in controversy, which was deeded to defendants’ mother, was sold and bought by plaintiff, who thereupon brought this suit against the husband and wife to have the title vested in him, but both husband and wife dying before judgment, the suit was revived against defendants, who by their answer maintained the validity of their mother’s title, that they were her devisees and that the judgment was void, and thereupon the plaintiff set up by reply, in the nature of an estoppel, that before the death of the original defendants it had been stipulated by the attorneys in the case that “a judgment was rendered in the circuit court... .in favor of plaintiff herein......against” the father......and “that the legal title to the real estate in co'ntroversy was at the time of the rendition of said judgment and at the time plaintiff bought the right, title, and interest of said” father in said real estate, in his wife. Held, first, that, the claim of these defendants being based on their mother’s title and being therefore antagonistic to their father and the plaintiff claiming under him, they are not estopped by any agreement he may have made with plaintiff in regard thereto; second, they are not estopped by tjhe stipulation from showing the judgment therein referred to was void, nothing therein being said as to its validity; third, the court did not err in permitting the defendants to withdraw the 'Stipulation and introduce the whole record in evidence, which showed the true character of the judgment.</p>

— Hon. L. B. Woodside, Judge. (1) ■ The head of a family can have only one homestead exempt at a time, and the homestead owned and used as such at the time the debt accrues is the one exempt. Stanley v. Raker, 15 Mo. 60; Goodall v. Boardman, 53 Vt. 92. In the case at bar, the respondent owned and lived on a homestead in Mt. View, Howell county, at the time the debt was contracted and at the time suit was brought thereon.

— Hon. W. N. Evans, Judge. ' (1) This being a voluntary conveyance on the part of R. M. Morgan to his children, the respondents herein, it is in law fraudulent as to existing creditors, unless he was solvent at the time the deed was made, and had ample means to pay his debts; and it devolves on the donees, the respondents herein, to show that Morgan was solvent and able to pay his debts, and unless they have so done, the finding should be for the appellants.

— Hon. James T. Neville, Judge, This suit is founded on the act of the General Assembly approved March 15, 1897, and incorporated in Revised Statutes 1899, as section 650. We refer to the original áct for the reason that we can more clearly arrive at the legislative intent in its passage. At the date of the passage of this act, we had in force in this State two methods by which a disputed title might be perfected.

-* — Hon. L. B. Woodside, Judge. This case was tided by the circuit court without the intervention of a jury. Oounsel who tried the case in the court below, both for plaintiff and defendant, proceeded on the theory that it was purely an equitable action. The plaintiff styles her suit — “Bill in equity to set aside a will.”

— lion. B. F. Boy, Judge*. (1) This suit being prosecuted by a creditor, the statute of frauds has no application. Shaw v. Shaw, 86 Mo. 594; Ryland v. Callison, 54 Mo. 513; Bobb v. Woodward, 50 Mo.. 100; Herrington v. Herrington, 27 Mo. 560; Rogers v. Rogers, 87 Mo. 257. (2) A part of the money to purchase the lands in controversy was furnished by Lemuel M. Wells, and the entire transaction is therefore void.

— No». James F. Green, Judge. (1) The bond for $1,000 was given for the very purpose of fixing the liability of Adams for a violation of the contract in suit; hence, plaintiff could not sue on the contract for the price of the goods mentioned,, and especially he could not sue for the valuation fixed by the contract. This valuation was not fixed in cash, but for the exchange of lands, goods, etc.,. at stated valuations of each separately.

— Hon. Rudolph Hirzel, Judge. (1) “A tax is an impost or duty levied upon the owners of property, in invitum, for the support of the government. It can only be levied and assessed in the strict mode provided by the statute authorizing its levy and assessment.

— Hon. J. H. Slover, Judge. (1) It was the duty of tbe court to say whether the undisputed facts amounted to a waiver of payment of balance of purchase price under the contract on delivery of the cattle. The cattle were sold for cash on delivery at Norman, Oklahoma Territory. By unconditional delivery, without any demand being made at the time for payment, the seller waived the payment as a condition precedent. Spring Garden Ins.

— lion. B. E. Quiver, Judge: The ordinance is void because violative of sections 4 and 30 of article 2, and section 53 of article 4 of the Constitution of Missouri. Section 2 of the ordinance provides that any person carrying on the business of a brewer’s agent shall pay an annual license of $100.

— Hon. L. B. Woodside, Judge. (1) Tbe question asked Mrs. Dunnigan as to wkat ber son said at Printz’s office as to circumstances under which deed was signed, was. a proper one, and witness should have been permitted to answer same.

— Hon. M. G. McGregor, Special Judge. “The court found from the evidence that plaintiffs and defendants, Oliver and Erazee, were partners and that A. J. Oliver was acting for the others as their superintendent, and defendants, Carney and Aldrich, were their sublicensees, working under them, and could not acquire a new relation to the property antagonistic to the plaintiffs,” or in other words, if they acquired any rights in or to the said land from Porter and others it would…

— Hon, David H. Eby, Judge. .(1) The defendants, James W. Lester and Eirst National Bank of Saratoga Springs, New York, should not have been permitted to come in and defend and introduce evidence of acts subsequent to the institution of this suit and filing of the lis pendens. 13 Am. and Eng. Ency. of Law (1 Ed.), 871, 910. (2) The deed from White to Bockes was void for the want of consideration. 15 Am. and Eng. Enc. Law (2 Ed.), pp. 225 and 781.

Louis City Circuit Court. — Hon. Jas. E. Withrowj Judge. (1) Plaintiff claims that the evidence shows that this conveyance made Busch insolvent; and it being voluntary on his part, it is void as to the plaintiff as one of Busch’s creditors at the time.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) The court erred in refusing to give the demurrer to the evidence at the close of plaintiffs case, as it clearly appeared that the lien was not filed in time. E. S. 1899, sec. 4807. (a) The lien should have been filed within four months after the acceptance and approval of the plant, on July 23, 1896. Mfg. Co. v. Burns, 59 Mo. App. 391; Scott v. Cook, 8 Mo.

Circuit Court. — Hon. W. N. Evans, Judge. (1) Conceding, for the sake of this case, that the deed to Susan M. Fraley was fraudulent, it in nowise impaired any homestead rights. Vogler v. Montgomery, 54 Mo. 577; Kendall v. Powers, 96 Mo. 142; Holland v. Kinder, 86 Mo. 59; Davis v. Land, 88 Mo. 436; Bank v. Guthrey, 127 Mo. 189. (2) The decisions in this State on the homestead law, are, in the main, confusing and conflicting.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The facts admitted by defendant himself, as a witness, are binding on him with like effect as though parts of his pleadings in the cause. Shirts v. Overjohn, 60 Mo. 308; State v. Brooks, 99 Mo. 137; Payne v. Railroad, 30 S. W. 148. (2) On the facts admitted by defendant, the court erred in declaring the law to be that the plaintiff, as receiver of the Globe Savings Bank, was in no better position than the bank itself.

Louis County Circuit Court.- — Hon. Rudolph Hirzel, Judge. The court erred in sustaining the demurrer to the evidence-at the close of the plaintiff’s case, as it clearly appeared that the conveyance of the right of way was made upo-n the valid conditions subsequent; that these conditions had not been com•plied with by the defendant, thereby rendering their estate void and of no effect, and giving a right of re-entry- in the plaintiffs, which under our statutes and decisions…

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) The plaintiffs claim that tbe strip in question is a public highway, first, by prescription, secondly, by common law dedication, and thirdly, in connection therewith, that, whether by prescription or by dedication, the defendant is estopped to deny the existence of a public easement in the premises.

— Hon. Henry G. Riley, Judge. The husband is entitled to curtesy in all lands of which his deceased wife was seized during the coverture, where there were children born alive, as in this case. Curtesy is a marital right, and marital rights are vested rights, and can only be destroyed by the contract, or wrongful act of the person entitled thereto. Leete v. State Bank, 115 Mo. 194; Mitchell v. Violet, 47 S. W. 195; Cooley Const.

— Hon. Romulus E. Gul- • ver, Special Judge. (1) The remedy against these sureties is not confined to scire facias. While that is the usual course adopted, it is not exclusive. The State may sue in a civil action as of debt at common law. Bodine v. Com., 24 Pa.

Polk Circuit Court. — Hon. Argus Cox, Judge. (1) The indictment is fatally defective because it does not charge the assault was made with felonious intent. The indictment herein attempts to charge a felony that is a crime which is liable to be punished by imprisonment in the penitentiary, not one which must be thus punished. R. S. 1899, sec. 1841.

— Hon. Argus Oox, Judge. The pleader attempted to put two counts in the indictment. Both are bad because they do not conclude “against the peace and dignity of the State.” Const., sec. 38, art. 6; State v. Lopez, 19 Mo. 254; State v. Pemberton, 30 Mo. 376. The appellant, in his brief, depends altogether upon the sufficiency of the indictment for a reversal of the cause.

— lion. W. N. Evans, Judge. (1) The Act of April 18,1895, if construed to require the payment of ten dollars to judges then in office, when a cause is sent from one circuit to another on a change of venue, is in violation of section 33, article 6, Constitution. (2) The order made at the June term, 1898, of the Howell Circuit Court, changing the venue to the Texas Circuit Court, divested the former court of all jurisdiction of the cause.

<p>1. Contract: breach: tender oe performance: recovery. If one party while engaged in executing a contract is notified by the other that he has annulled and repudiated it, the first party may stop, and without tendering further performance, bring his action to recover the contract price for the work performed or goods furnished, and for his damages for the difference between the contract price and what it would have cost to perform the uncompleted part. The unqualified annulment of a contract by one party, without reasonable cause, and a refusal to permit the other to perform his part, is tantamount to a compliance with the contract by such other party.</p> <p>2. Recovery Without Performance. It is held that an instruction set out in full in this case does not permit a recovery on the contract, for the work performed thereunder by plaintiff prior to the time of its annulment by defendant, without requiring a performance of the contract by plaintiff.</p> <p>3. -: PAY BY INSTALLMENTS: ANNULMENT: RECOVERY. Where work is done under a contract which provides for payment by installments, if the party who so agrees fails to so pay, the other party may quit the work and recover for all he has done at the contract price.</p> <p>4. Issues Admitted by Pleadings: einding: breach oe contract. The court sitting as a jury is not required to submit to himself the finding of a fact conceded by the pleadings. And where defendant’s answer admits the annulment of a contract, but asserts just cause therefor, it is not error to give an instruction which is a necessary deduction from his finding that defendant had broken the contract without just cause.</p> <p>5. -: -: RECOVERY NOTWITHSTANDING ERRONEOUS INSTRUCTION. Where the whole evidence shows that plaintiff had performed a part of the work under the contract prior to its annulment, and that defendant had inspected and accepted it, and had suffered no damages for any breach thereof by plaintiff, the judgment for plaintiff for the value of the work done at the contract price, should stand, notwithstanding an erroneous instruction may have been given in his behalf.</p> <p>6. -: ANNULMENT: tender OE performance. Where there is an executory contract for the supplying of goods from time to time, to be paid for by installments after delivery, if the purchaser having received and accepted a portion of the goods contracted for, gives notice to the vendor that the contract is annulled because of the vendor’s failure to comply therewith, which annulment the court finds on the trial to have been without reasonable cause, the vendor, having been desirous and able to complete the contract, may without tendering the rest of the goods, maintain an action against the purchaser for breach of contract.</p> <p>7. -: -: SUBLETTING:- INSPECTION: APPLICABILITY TO breach. A contract for the sale and delivery of telephone poles provided that the vendor should “give his personal attention to the work and not sublet the same or any part thereof without the written consent” of the purchaser, and that a “failure to comply with this stipulation......shall be deemed a breach of the contract” if the purchaser “shall so elect.” The purchaser knew that the character of poles required were to be had only in a distant State, and that the vendor had contracted with a supply company in that State to furnish them, and sent his inspector there, who left an order with the supply company for a lot of poles instead of giving it to the vendor, and there received the ties without an intimation that the purchaser considered this a breach on the part of the vendor— the contract on its face reserving the right to the purchaser to have an inspector at the place where the ties were obtained and also at their place of delivery. Held, first, that, the contract being one for the sale of materials, this subletting provision refers to work, and, hence, had no application as a defense to a suit for damages for the annulment of the contract by the purchaser; second, there was no subletting or assignment of the contract under the facts in evidence.</p> <p>8. -: BREACH; PERFORMANCE: SATISFACTORY RATE OF PROGRESS. The contract for the delivery of telephone poles provided that “the delivery shall begin within sixty days after the award of the contract, and continue uninterruptedly and be completed six months after said sixty days,” and further said: “It is hereby mutually agreed and expressly understood” that the purchaser “shall have-the right to suspend the execution of this contract, and to annul the same whenever” the vendor “shall fail to carry out the work with a satisfactory rate of progress." Held, that, the contract being an ordinary one for materials, the court correctly construed it as requiring that reasonable progress in the delivery of the poles which a reasonable man under like circumstances would regard as a satisfactory rate of progress, and not as giving the purchaser the arbitrary right to annul it whenever he saw fit without regard to the rights of the vendor or the other stipulation thereof; and, what is, a satisfactory progress under the contract was peculiarly a question of fact.</p> <p>9. -: -: measure OE damages. Where a contract for the purchase of telephone poles is wrongfully annulled by the purchaser, the vendor’s measure of damages, where the purchaser has bought from another the complement of poles, of the same size for the .same price as specified in the contract, is the difference between the contract price and the amount it would have cost the vendor to furnish and deliver the poles, under the contract, and that cost, where such poles are not carried in stock at the place of delivery, i-s their cost at the log camp, plus the transportation charges, plus the cost of trimming them to meet the requirement of the contract.</p>

Xppeal from Morgan Circuit Court. — Eon. Dorsey W. Shackleford, Judge. (1) The will of Addison T. Ball gave his widow Orinda I. Ball, “such portion as she would be entitled to under the statute of descent and distribution now (then) in force in this State.” She took under the will. She pleads the will in her answer, and claims to hold under and by virtue of its provisions. Davidson v. Davis, 86 Mo. 440.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) The State’s attorney was guilty of such misconduct in his remarks to defendant’s witnesses on cross-examination and in his willful and malicious characterization of defendant as should warrant this court in reversing this ease on that ground alone. State v. Ulrich, 110 Mo. 350; State v. Young, 99 Mo. 666; State v. Fischer, 124 Mo. 460.

— Hon. W. W. Wood, Judge. (1) In equity eases, the evidence is reviewable by tbe appellate court as upon first impression. It is tbe duty of tbe ■court to review tbe evidence and make its finding of facts. And it may admit or exclude evidence that was admitted or rejected by tbe trial court. Baxter v. Donnell, 69 Mo. App. 588; Goodrich v. Harrison, 130 Mo. 263; Bush v. Arnold, 50 Mo.

<p>1. Conveyances: wife’s acknowledgment in 1852: before justice: title conveyed. A justice of the peace had no authority, under the statute in 1852 (R. S. 1845, p. 225, sec. 35), to take a married woman’s acknowledgment to a deed. Justices’ of courts having seals were the only justices that could do that, and as justices of the peace had no seal they were without authority to take a married woman’s acknowledgment.</p> <p>’2. -: ACKNOWLEDGED BY HUSBAND AND WIFE BEFORE JUSTICE: title conveyed. A deed acknowledged by both husband and wife before a justice of the peace in 1852, did not pass the wife’s title to her lands, but was sufficient to convey the husband’s curtesy initiate.</p> <p>3. -: ACKNOWLEDGMENT BEFORE MAYOR OF KANSAS CITY. The mayor of the City of Kansas, under the act incorporating that city in 1853, had authority to take acknowledgments to deeds conveying lands lying outside the corporate limits of the city.</p> <p>4. -: -: restricted authority. Where, in an act incorporating a city, the mayor is “authorized to take acknowledgments of deeds and all other instruments of writing affecting the title to-lands and certify the same under the seal of the city,” it will be held, in the absence of any provision restricting his authority to take acknowledgments to such lands only as lie within the city limits, that his authority was eo-extensive with the county, as the acts-of officers having seals generally are.</p> <p>5. -: MARRIED WOMAN’S ACKNOWLEDGMENT: “AS A PARTY thereto.” The validity of the deed of a married woman conveying her lands, dated in 1853, is not affected by the fact that the eertifi* cate of acknowledgment omitted to say that she executed the deed “as a party thereto.”</p> <p>6. -: DEEDS OF DOUBTFUL MEANING: CONSTRUCTION LESS FAVORABLE TO GRANTOR: HEIRS CONVEYING MOTHER’S DOWER; HABENDUM clause. A deed should be construed in accordance with the intent of the parties thereto when such intent can be obtained from the instrument itself; and when its language will admit of two constructions the one less favorable to the grantor is to be adopted. So that if grantors describe the land as “two undivided ninth parts of all our mother’s dower,” it will be held that the intention of the parties was to convey the fee to two-ninths interest in the land subject to their mother’s dower. This construction is less favorable to the grantor, and without it, as the grantors had no interest whatever in their mother’s admeasured dower, the deed would be wholly inoperative. Besides, this view is enforced by the habendum clause, which says “To have and to hold the two undivided ninth parts of the above described real estate after the death of our mother,” etc.</p> <p>7. -: -: office of habendum. The habendum clause of a deed, if there is any doubt as to the intention of the parties, performs the office of defining, qualifying or controlling the granting clause when not in conflict with it.</p> <p>8. -: DEED BY MARRIED WOMAN WHILE A MINOR: DISAFFIRMANCE. A married woman who at the time she executed a deed was a mbior, and therefore under the disability of coverture and infancy, is not obliged to take action to disaffirm the deed until the last disability is removed, however long it may last; and if she dies before either or both such disabilities are removed, the right to disaffirm does not die with her, but descends to her heirs, and can be exercised by them within ten years after her death, and if they sell their interest to another, he can within that time bring suit to recover the same.</p> <p>9. -: -: -: silence. Mere silence, however long, or omission to act, is not an affirmance of a deed made in infancy or coverture.</p> <p>10. -: -: INCUMBERED WITH DOWER: limitation. Where a. deed conveying the grantor’s interest in inherited land, then incumbered with their mother’s dower, was made by a married woman and her husband while she was yet a minor, and by another sister who married before she arrived at her majority, and they both remained under the disability of coverture until their death forty years after-wards, having never at any time in any way ratified or confirmed said deed, the heirs of each of them are entitled, under the statute # of limitations, to ten years after their respective deaths in which to disaffirm said deeds, and can do so by an ordinary suit in ejectment, although the land has been held in adverse possession for more than thirty years since the termination of the dower.</p>

— Hon. E. M. Hughes, Judge. (1) (a) The defendant should have been allowed to appear in person in court before the grand'jury was impaneled, charged and sworn, because he is specially given that right by statute. R. S. 1899, sec. 2487. (b) “In criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel.” Art. 2, sec. 22, Constitution of Missouri; State v. Hoffman, 78 Mo. 256; State v. Smith, 90 Mo. 37.

— Eon. J. G. Lamson, Judge. On the twenty-eighth day of October, 1897, “it is ordered by the court that the plaintiff be allowed sixty days from now in which to file a bill of exceptions in this cause.” Then on the eighth day of January, 1898, the appellant filed the written order of the circuit judge extending the time to the fifteenth of February, the order reading: “The time for filing the bill of exceptions by appellant in this cause is hereby extended, till the…

— Hon. George F. Longan. Judge. (1) A trustee may purchase the trust property from the beneficiary if the trade be fair and beyond suspicion. Richard v. Pitts, 124 Mr. 602; State ex rel. v. Jones, 131 Mo. 194; Sallee v. Chandler, 26 Mo. 124; x\llen v. Gillett, 127 U. S. 595. (2) These three residuary devisees had a right to sell. The estate became vested in them upon the death of Warren Wharton.

— Hon. P. O. Stepp, Judge. (1) The deed from Eichard and wife to Ann P. Henderson vested in her an estate which the common law formerly denominated a conditional fee, which became absolute if the grantee or donee had bodily heirs. 2 Blackstone, 110, 111; Tiedeman on Eeal Property, sec. 45.

— Hon. E. B. McKee, Judge. Appellant Isabella Hageluken was at the time of the execution of the trust deed sought to be foreclosed in this action, a married woman, living with her husband, she having obtained the property in controversy by deed from one William Corn-mans. The land in this suit, under the evidence, was not her separate estate.

T. J. Murray, Special Judge. (1) All questions concerning the regularity, good faith and validity of the transactions of Elisha Headlee, administrator de bonis non, in selling other land (not involved in this trial), the amount due Sarah M. Harrington on her final settlement with him, are res adjudicata, having been determined by the court in affirming the judgment of the circuit court. Carey v. West, 139 Mo. 146.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. “This court will notice only such questions in this cause, upon this appeal, as were not determined by its decision on the ■ former appeal. Whatever was there passed upon will be deemed res adjudicata and no longer open to further controversy.

— Hon. Andrew Ellison, Judge. (1) Final settlement without the statutory publication has not the force and effect of a judgment. Yan Liew v. Beverage Co., 144 Mo. 509; State ex rel. v. Donegan, 83 Mo. 374; s. e., 12 Mo. App. 190.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. The board of directors of a corporation are trustees for tbe corporation and its stockholders, and when acting for them are botuid to exercise the utmost good faith. Any attempt, in dealing with its property or affairs, to secure to themselves personal advantages over other stockholders, is subject to the most vigorous scrutiny. Schufieldt v. Smith, 131 Mo. 287; Hill v. Coal Co., 119 Mo. 9; 1 Morz on Priv. Cor.

— Mon. Jas. E. Mazdl, Judge. (1) The circuit court erred in overruling motion to quash the paper deposited with the clerk of the Moniteau Circuit Court in this cause on the third day of January, 1901, in vacation of court, before the January term of the Moniteau Circuit Court, 1901, by N. C. Hiekcox, as prosecuting attorney.

— Hon. Jno. W. Henry, Judge. (1) The point is made that by the acceptance of the foregoing act of the Federal Government the telegraph company “is constituted a government agency within the meaning of the law exempting such agencies from the burdens of taxation imposed by the States.” In this counsel are in erro-r for two reasons : First, because the privileges conferred upon companies of this character by the act of the Federal Government, carries with it no exemptions…

<p>Appeal from St. Louis County Circuit Court — Hon. Rudolph Ilirzel, Judge.</p> <p>(1) The court should have sustained the demurrer to the evidence as, under the pleadings and evidence, the plaintiff was not entitled to recover for the reasons: First. Because the plaintiff had been working at that place and using that elevator for eighteen months prior to the accident; the conditions were the same when he entered the defendant’s employ as when he was hurt, and had been the same during the intervening time; he was a man of mature years, the conditions complained of and the risks and dangers incident thereto were obvious, were well known to him, even better than to his master, and, by continuing to work in those conditions without. complaint, he assumed the risks incident thereto and can not now complain when they have resulted in injury — and this even though the court should hold there was a violation by defendant of the ordinance pleaded and that this constituted negligence per se. Price v. Railroad, 11 Mo. 511; Spiva v. Osage C. & M. Co., *88 Mo. 68; Alcorn v. Railroad, 108 Mo. 97; Eugler v. Bothe, 117 Mo. 493; Junior v. M. E. & P. Co., 127 Mo. 83; Lucy v. Hannibal, etc. Co., 129 Mo. 39; Nugent v. Milling Co., 131 Mo. 254; Holloran v. H. I. & E. Co., 133 Mo. 470; Winkler v. St. L. B. & B. Co., 137 Mo. 394; Doyle v. Trust Oo., 140 Mo. 18; Epperson v. Postal O. T. Oo., 50 S. W. 803; Railroad v. Seley, 152 U. S. 154; Hunt v. Kile, 98 Eed. 53; Iron Oo. v. Weiss, 90 Eed. 46; Tbe Saratoga, 87 Eed. 349; Dredging Co. v. Walls, 84 Eed. 428; Pierce v. Olavin, 82 Eed. 552; Carpet Oo. v. O’Keefe, *51 U. S. App. 74; Knisley v. Pratt, *148 N. Y. 372; Marsh v. Chickering, 101 N. Y. 396; Gibson v. Railroad, 63 N. Y. 449; (followed in 88 N. Y. 264, and 111 lb. 554) ; Horton v. The Yulcan Iron Works, *13 App. Div. (N. Y.) 508; Gruner v. Brewer, 4 App. Div. (N. Y.) 327; Eeely v. Pearson Cordage Co., 161 Mass. 426; Goodridge v. Washington Mills Co., 160 Mass. 234; Kleinert v. Kimhardt, 160 Mass. 230; O’Malley v. S. B. G. L. .Oo., *158 Mass. 135; Taylor v. Oarew Mfg. Co., *143 Mass. 470; s. c., 140 Mass. 150; Scharenbraich v. St. Cloud E. W. Co., 59 Minn. 121; Jenny Electric L. & P. Oo. v. Murphy, 115 Ind. 566; Reynolds v. Hindman, *32 Iowa, 146; Willey v. Mulledy, * 78 N. Y. 315; Disano v. N. E. S. B. Co., 40 Atl. (R. I.) 7; Boyd v. Harris, 35 Atl. (Pa:) 222; McDonald’s Adm. v. N. & W. R. Oo., 27 S. E. (Ya.) 821; Bailey oh Personal Injuries, etc., secs. 778, 837, 946-8; Bailey on Master’s Liability to Servant, p. 180; Beach on Cont. Neg., secs. 370, 371; (Mem: The cases marked with an asterisk are cases of violation of a statute). Second. Because the plaintiff, knowing exactly the conditions as to light existing about the elevator at the time he was hurt, and knowing the gate was up, and that according to the unvarying method of using the elevator, he must look to see if it was a.t the landing, and, if not, pull it up or down to that floor, nevertheless walked on to the elevator, and, without stopping to see 'if it was there, or turning on the light that hung before it, walked into the open shaft, and thus by his own carelessness and negligence directly contributed to the happening of the accident, and this forbids his recovery; and as this was the proximate cause, it would make no difference if the court should, hold that defendant violated the ordinance pleaded, and that this constituted negligence per se. Lenix v. Railroad, 76 Mo. 91; Powell v. Railroad, 76 Mo. 83; Butts v. Railroad, 98 Mo. 272; Weber v. Railroad, 100 Mo. 200; O’Donnell v. Patton, 117 Mo. 21; Plogan v. Railroad, 150 Mo. 55; Holwerson v. Railroad, 57 S. W. 770; The Saratoga, supra; Claus v. Steamship Co., 89 Eed. 646; Beach on Cont. Neg., see. 58. (2) The court erred in admitting the ordinance in evidence for these reasons: First It could not be made the basis on which to rest a civil liability on the part of defendant to plaintiff. Holwerson v. Railroad, 57 S. W. 770; Murphy v. Railroad, 153 Mo. 252; Sanders v. Railroad, 147 Mo. 426; Byington v. Railroad, 147 Mo. 673; Path v. Railroad, 105 Mo. 537. Second. The ordinance did not make the violation negligence, on the ■ contrary, it only fixed and limited the punishment for violation at a certain fine, and hence, was only punitive, and not compensatory. Holwerson v. Railroad, supra. Third. The plaintiff failed to show that defendant had been notified by the commissioner of public buildings to erect gates, and until such notice was given, and disregarded for thirty days, there was no obligation to comply with the ordinance, and hence there was no violation thereof by defendant.</p> <p>(1) “It is the duty of the master to keep his premises, necessary in the prosecution of his business, in a reasonably safe condition, and if he fails to do so he is liable to the servant for all injuries resulting to him from such defects, precisely as he would be to a stranger affected with the same knowledge of their condition that the servant has, unless such defect arises or is not repaired in consequence of a co-servant. The master owes the same duty in this respect to the servant that he owes to a stranger lawfully upon the premises, and in either case it is a question of care and diligence on the master’s part and a want of proper care and diligence on the part of the person injured.” Wood, Master and Servant (2 Ed.), pp. 695, 696, sec. 334; Dayharsh v. Railroad, 103 Mo. 576; Turner v. Haar, 114 Mo. 346; Williams v. Railroad, 119 Mo. ¿522; Herdler v. Buck, S. & R, Co., 136 Mo. 15. (2) The servant Wendler, upon entering the service of the defendant, assumed the risks and dangers ordinarily incident to the service he engaged to perform. These are risks and dangers which attend tire service, when the master performs his duties to his servant. They are such risks and dangers which accompany the work notwithstanding the master performs his duties. But the rule is equally as well settled that the servant does not assume the risk which may arise by reason of the neglect to provide a reasonably safe place and appliances to do the work he engages to perform. The duty of the master as to supplying a reasonably safe place, and reasonably safe appliances "is a continuing duty of the master and a neglect of it is negligence.- On entering the employment the servant does not assume the risk of dangers arising from its neglect” Settle v. Railroad, 127 Mo. 343; Railroad v. Spangler, 44 Oh. St. 471; Roesner v. Hermann, 10 Biss. 486; Railroad v. Eubanks, 48 Ark. 460; Hessonger v. Railroad, 191 Ala. 514; Blanton v. Dold, 109 Mo. 76; Settle v. Railroad, supra; Gibson v. Railroad, 46 Mo. 163; Huhn v. Railroad, 92 Mo. 447; Soedey v. Railroad, 100 Mo. 681. (3) That the city has the power to pass an ordinance for the protection of life and limb is not challenged even in the Fath case. It is distinctly asserted by able text writers. 2 Dillon on Municipal Corporations, sec. 713; 2 Shearman & Redfield on Railways, pp. 577, 578, cited by this court in Merz v. Railroad, 88 Mo. 677. And an ordinance in pari materia with the one in this case was upheld as a beneficient exercise of the police power to protect life and limb, which resides in a municipal corporation. Brannock v. Elmore, 114 Mo'. 59, where the court says: “The disregard of the ordinance was in itself an omission of duty sufficient to justify a verdict for plaintiff against the person who was guilty of the negligent omission.” 1 Shearman & Redfield on Negligence, sec. 13; Murray v. Railroad, 101 Mo. 236 j Dickson v. Railroad, 104 Mo. 501.</p>

— lion. Gallatin Craig,. Judge. (1) Objection to introduction of any evidence should liave been sustained because the petition shows that plaintiff was guilty of contributory negligence. (2) Respondent’s instruction number one is misleading and unintelligible. It is not sufficient that a skilled lawyer may be able to spell out correct legal principles from an instruction.

Prohibition. (1) (a) The colloquy of court and counsel, and 'matters set forth in the return but not appearing of record, are incompetent as evidence or otherwise, and should not be considered. “A court of record can only speak by its records.” Eranklin Co. v. Maupin, 67 Mo. 327; Hewett v. Steele, 118 Mo. 463; Johnson Co. v. Wood, 84 Mo. 489; Kansas City v. Eailroad, 81 Mo. 296; Dennison v. Co. Court, 33 Mo. 165; Milan, etc. v. Pendleton, 12 Mo. 598; Medlin v. Platte Co., 8…

— Hon. Jas. T. Neville, Judge. (1) Baldwin, by his agreement, became a trustee, holding the title to the lot for his associates and for the company afterwards organized. “Promoters occupy a confidential relation to each other, and between a promoter and the company, a fiduciary relation may exist long before the actual formation of a company by registration or otherwise.

<p>1. Evidence: relationship: testimony oe one person: finding of jury. . The testimony of the plaintiff alone that she is a half-sister of the last owner of the land, under whom both plaintiff and defendant claim in ejectment, is substantial evidence to support the verdict of the jury finding that she was so related, and is sufficient to establish her right to inherit from that owner, although her legitimacy is disputed by defendant, another half-sister.</p> <p>2. Ejectment: husband’s right to rents of wife’s lands. The husband, during coverture, is entitled, as husband, to the possession of the wife’s lands and to the rents and profits arising therefrom, and his widow in ejectment is not_ entitled to recover for rents accruing prior to his death.</p>

— Son. R. F. Roy, Judge. (1) It is admitted by tbe parties to this action, that tbe taxes of 1894, sued for in plaintiff’s petition as “for Buffalo township tax” and “for Cuivre township tax,” are for the payment of bonds, township railroad bonds, of said townships, and the interest thereon, which bonds are known as “Refunding Railroad Bonds,” and were not issued and negotiated until the year 1883.

— Hon. Jno. P. Butler, J udge. (1) The obligation of the carrier begins with the reception of the passenger. State v. Blunt, 110 Mo. 322.

Louis City Circuit Court. — Son. Selden P. Spencer, Judge. (1) A judgment of divorce becomes valid when pronounced by the court, and it need not be in writing or signed by the judge. In re Estate of Cook, 77 Cal. 220; s. c., 83 Cal. 415; Box v. Hale & Norcross Silver Min. Co'., 108 Cal. 478; Holt v. Holt, 107 Cal. 258; Eranklin v. Merida, 50 Cal. 289.

<p>1. Negligence: joint liability of two defendants: waterworks: flooding private property. The city contracted with its co-defendant to sprinkle its streets, and he was to get the water from the city hydrants, and was furnished a key for unlocking the hydrants and turning the water into the hose, which was attached to the hydrant by means of a brass screw. Whenever the hydrants were unsafe or were not to be used they were painted red, and when safe they were painted black. The hydrant in question was painted black, but the knob was badly worn, and after the driver had made the connection and filled the tank and was attempting to close the plug the key slipped off the knob, and striking against the coupling broke it loose and the escaping water flooded plaintiff’s private premises. The knob and the threads in the screw were badly worn, and these defects caused the damage,- the defective knob caused the key to slip off, and the defective screw caused the connection to break. The city’s co-defendant did not know the hydrant was defective, and had no control or authority over the hydrant or the waterworks. As soon as it was suggested to the driver he backed his wagon in front of tie spouting water, and thus deflected it from plaintiff’s premises. Held that the city alone is liable. Held, also, that the fact that the negro driver, in his excitement, did not sooner back the wagon against the escaping stream does not impute negligence to his master.</p> <p>2. -: -: -: -: evidence of DRIVER: res gestae. A statement by one driver of the co-defendant’s tanks to the one in charge when this accident occurred, but after it had occurred, that he knew the hydrant was defective, did not charge his master with such knowledge.</p>

Louis City Circuit Court. — Hon. Leroy B. ValUant, Judge. (1) A contract procured through fraud is voidable at the election of the party defrauded. Held: a demand for an affirmance with damages held warranted on the ground that every proposition urged by the appellant had been determined adversely to him by prior decisions of the Supreme Court and this court. Osborn v. Oliver, 23 Mo. App. 667.

— Hon. Jno. P. Butter, Judge. (1) There was no evidence tending to prove that respondent was an heir at law of William Downey, deceased; hence the judgment should have been for appellants. (2) (a) Respondent was not entitled to damages.

— Hon. Jos. D. Perkins, J udge. (1) Procuring a franchise by plaintiffs was made, by the contract, an essential part of the consideration for payment by Hennessy and Massie. It was a condition precedent. (2) Plaintiffs can not recover without- showing performance, or that performance was waived by the other parties. 7 Am. and Eng. Ency. of Law (2 Ed.), 145; Eyerman v. Mt. Sinai Ass’n, 61 Mo. 489; Railroad v. Boestler, 15 Iowa 555.

— Hon. Richard Field, Judge. (1) Section'6, of the city charter, which authorizes the city to levy a special tax for the erection of.......waterworks and the purchase of..............waterworks, and the entire section, which is lengthy, shows that the powers are strictly limited to such erection or purchase of waterworks and can not by any implication authorize a tax for hydrant rental from a waterworks owned by some other person or company. Nor can such power be delegated.

— Hon. ,Jno. Or. Wear, Judge. (1) There is no evidence to support the finding. The evidence fails to show the value of either the lot on which respondent lives, or the lot in qúestion, or the area of either. In order to claim the property as exempt,' it must appear that the value of the entire property claimed does not exceed the sum of fifteen hundred dollars, or five acres in area. R. S. 1899, sec. 3616.