Volume 165 — Missouri Appeal Reports

<p>1. APPEAL AND ERROR: Appellant Must Be Interested Party. Where one of the plaintiffs appealed from a judgment in an action on promissory notes, and it appeared from the record that he had no interest whatever in said notes, and the judgment did not even impose a liability for costs on him, the appeal will be dismissed.</p> <p>2. -: -¡ The appellant must be a party aggrieved; one who is affected by the judgment, and unnecessary parties wholly unaffected by the judgment cannot appeal therefrom.</p> <p>3. JUDGMENT: Appeal and Error: Final Judgment: Amending Judgment Without Order. Where the judgment in favor of the defendants was incomplete and was not in fact a final judgment, in that it did not discharge the defendants and render a judgment in their favor for the costs, an appeal from such judgment by a plaintiff will not lie; neither will it avail plaintiff anything after the appeal has been taken and after the judgment has been written and without any order from the court and without notice to the defendants to have the clerk add to the incomplete judgment a proper conclusion and enough to make it a final judgment,</p> <p>4. APPEAL AND ERROR: Final Judgment. An appeal will not lie where there is no final judgment.</p> <p>5. JUDGMENT: Final Judgment. A final judgment must purport to be the actual and absolute judgment of the law, as distinguished from a mere finding that one of the parties is entitled to a judgment.</p> <p>6. APPEAL AND ERROR: Party Not Joining in Appeal. A party to a judgment to be benefited by an appeal should join in it and unless so joining he has no standing in an appellate court. To hold otherwise would allow a party to share in all the advantages of an appeal without being responsible for any part of the costs and expenses.</p>

<p>The opinion of the Springfield Court of Appeals in this case (151 Mo. App. 234) is adopted as the opinion of the court. •</p> <p>NORTONI, J., Dissents.</p>

— Hon. Henry G. Riley, Judge. The evidence clearly establishes the fact that appellant gave his note in full satisfaction of his open account with respondent and this action should have been upon the note and the judgment should, therefore, have been for the appellant. Rawlings v. Rawlins, 102 Mo. 563; Curtis v. Browne, 63 Mo. App. 431 , Mohney v. Reed, 40 Mo. App. 99; Griffith v. Creighton, 61 Mo. App. 1; 1 Cyc., pp. 336, 337 (d).

Louis City Circuit Court. — Eon. Robert M. Foster, Judge. (1) Deceased was guilty of contributory negligence as a matter of law in attempting to cross tbe Olive street tracks at a rate of speed which, rendered it impossible for him to avoid a collision with the car. There being no last chance doctrine in the case, the demurrer should have been given. Dey v. United Rys.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. Under section 3436 of the statute, the fund here in dispute was attached by the garnishment writ in this cause, and was therefore, after the service of the writ upon the garnishee, on October 26, 1908, a fund in custodia legis, which could only be thereafter lawfully paid out under the order of the circuit court of St. Louis County, Missouri, in whose sole custody said fund then was.

Louis City Circuit Court. — Eon. George E. Williams, Judge. (1) The petition does not state a cause of action. It counts on the “award in writing,” and yet states no facts or terms of the policy which give effect to the award. No liability whatever is disclosed by the petition. Frissell v. Fiches, 27 Mo. 557; Walt v. Huse, 38 Mo. 210; Bridgeman v. Bridgeman, 23 Mo. 272.

Genevieve Circuit Court. — Hon. Henry G. Riley, Judge (1) The petition contains all the necessary allegations in an action for money had and received, and the matters of inducement contained in the petition only clarify the facts, and are unobjectionable. Creigler v. Duncan, 121 Mo. App. 390; Stout v. Hardware Co., 131 Mo. App. 528.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The plaintiff should have been nonsuited at the close of plaintiff’s case, or the court should have directed a verdict for the defendants at the close of the whole case, because there was no proof whatever of any defect in the hayfork or the rope to which it was attached, or of any negligence in the manner in which they were fastened.

— Eon. R. S. Ryors, Judge. (1) The well established rule in this state is that, “The mortgage must point out the subject matter so that a third person by its aid, together with the aid of such inquiries as it suggests may identify the property covered by it.” Dierling v. Pettit, 140 Mo. App. 91; Young v. Bank, 97 Mo. App. 576; Com. Co. v. Com. Co., 93 Mo. App. 123; Bank v. Shackleford, 67 Mo. App. 475; Trimble v. Keet, 65 Mo.

—Hon. R. O. Ranney, Judge. (1) The demurrer to plaintiff’s evidence under the second count of the petition should have been sustained. The peremptory instruction at the close of all the evidence under the second count should have been given, (a) Plaintiff was not a passenger on the train. O’Donnell v. Railroad, 197 Mo. 110; 4 Elliott on Railroads, secs. 1580, 1581.

— Eon. James D. Barnett, Judge. (1) Plaintiff’s petition alleges and the testimony of plaintiff and his witnesses shows that the place where he went to work was not only dang'erons but its dangerous condition was patent to all and the very character of the work they were to do was known to all of them to be dangerous; and, therefore, the demurrer at the close of plaintiff’s evidence should have been sustained. Berry v. Kansas City, 128 Mo.

— Hon. D. H. Eby, Judge. (1) The trial court should have given appellant’s instruction in the nature of a demurrer to the evidence at the conclusion of the respondent’s case in chief qnd certainly should have given that instruction at the conclusion of all of the evidence in this cause. Ficldand & Son v. Railroad, 115 Mo. App. 633; Otrich v. Railroad, 154 Mo. App. 420; Meyers v. Railroad, 90 Mo. 98; Paddock v. Railroad:, 155 Mo. 524; Huston Bros. v. Railroad, 63 Mo.

Louis City Circuit Court. — Soto. Daniel D. Fisher, Judge. (1) Although called hv amendment of the second amended petition a subletting the proposed transaction of the Underwood Typewriter Company with the Booklovers Library was according to the legal effect of the undisputed testimony an assignment. Plaintiff proposed to transfer its entire interest in the unexpired lease which would constitute in law an ¿ssignment. Railroad v. Railroad, 135 Mo. 190.

Louis City Circuit Court.- — Hon. William M. Kinsey, Judge. (1) Any fraud perpetrated- on a third party in the course of his employment and for the benefit of his principal must he imputed to the principal, whether or not the latter had actual knowledge of it. Judd v. Walker, 215 Mo. 312; Kayser v. Kinkle, 127 Mo. App. 6-2. The defendants permitted the agent to sell the stock and statements concerning the value of the same are within his apparent authority.

'Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The court erred in admitting over appellants’ objections, evidence of special damages to the business of respondent, the petition not pleading damages of such character. Townsend on Slander & Libel (4 Ed.), p. 263; 25 Cyc., p. 475 (e); Hermann v. Bradstreet, 19 Mo. App. 231; Nicholson v. Rogers, 129 Mo. 140; Friedman v. Pub. Co., 102 Mo. App. 694'.

— Hon. Henry G. - Riley, Judge. (1) (a) All the evidence shows that the water, which is alleged to have been diverted on Mississippi avenue, was water from rains and melting snow; not a natural watercourse, hut merely surface water. Jones v. Hannovan, 55 Mo. 462; Benson v. Railroad, 78 Mo. 504; Stewart v. Clinton, 79 Mo. 603; Abbott v. Railroad, 83 Mo. 271.

Louis City Circuit Court. — Eon. Leo S. Rassisur, Judge. (1) It was manifestly improper for plaintiffs’ counsel in Ms opening statement' to the jury, before .they were examined on their voir dire, to state as a fact that defendant “undermined the wall of plaintiffs’ house and that the house fell in, and finally had to be removed, so that the house is now totally destroyed down to the joists of the first floor,” and that he was “acquainting the jury with the facts,” instead…

Louis County Circuit Court. — Hon. John W. McElhiwney, Judge. (1) Where the contract is not for a lump sum but for specific amounts for given quantities, the quantities as afterwards ascertained, may be considered in determining whether the contract is within the estimate. In re Marsh, 83 N. T. 431. (2) An estimate is necessarily only an expression of opinion formed upon the best data obtainable. It is not; and is not intended as, an accurate statement or computation.

<p>1. CRIMES AND PUNISHMENTS: Appellate Practice: Failure to Prosecute Appeal. Where the defendant in a criminal case appeals from a judgment of conviction, and fails to file a transcript of the proceedings or a certified copy of the judgment and order granting the appeal, within the time prescribed hy law, the appeal will be docketed and dismissed for failure to prosecute it, upon a transcript being filed hy the state.</p> <p>2, -¡ Appellate Jurisdiction: Indictment for Felony and Conviction of Misdemeanor. Where, in a criminal prosecution, the defendant is indicted for a felony but is convicted of a misdemeanor, the Court of Appeals has jurisdiction of the appeal.</p>

<p>The opinion of the Springfield Court of Appeals in this case (145 Mo. App. 33) is adopted as the opinion of the court.</p>

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) An amendment to a petition at the close of plaintiff’s case, materially changing the cause of action, is not permissible. If such amendment is allowed it should only be on proper terms. R. S. 1909, sec. 1848; Carter v. Dilley, 167 Mo. 564; Joyce v. Growney, 154 Mo. 253; Scovill v. Glasner, 79 Mo. 449; Purdy v. Pfaff, 104 Mo. App. 331; Johnson v. Blell, 61 Mo. App. 37; Manufacturing Co. v. Givens, 35 Mo.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The declaration of law given for plaintiff is erroneous in that it ignores the question of whether or not O’Connor had been discharged for good cause. United Railways Co. v. O’Connor, 153 Mo. App. 128. (2\ The court erred in finding that plaintiffs were entitled to the sum of five hundred dollars. A finding, if for plaintiffs, can only be for the sum of three hundred dollars. United Railways Co. v. O’Connor, supra.

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) It was error for the trial court to give to the jury a peremptory instruction to find for plaintiff. No matter how strong the evidénce, the court could not, as a matter of law, rule that plaintiff had made out a case which entitled her to recover. That issue should have been submitted to the jury upon a proper instruction. Gannon v. Gas Co., 145 Mo. 502; Reynolds v. Railroad, 115 Mo.

Louis City Circuit Court. — Hon. Charles Clafiin Allen, Judge. The appeal in this case should he dismissed because there is nothing for this court to review. When the appellants filed their fifth amended petition, the original petition and the other four amended petitions were abandoned. Ingwerson v. Railroad, 205 Mo. 333.

— How. David H. Eby, Judge. (1) Instruction No. 3 offered on the part of plaintiff was in the usual form which has been approved by the courts of this state and should have been given. 1 Greenleaf… Held: That where mere reference is made to the pleadings in an instruction, for the purpose of brevity, it is , not error, (b) That where the other instructions fully present the issues to the jury there is no error. This plaintiff’s and defendants’ other instructions fully did.

— Hon. James D. Barnett, Judge. (1) Replevin will lie for the recovery of records, documents, notes, checks and writings in general of value when unlawfully detained. 34 Cyc., p. 1358. (2) A county warrant is both a judicial ascertainment and a written acknowledgment of indebtedness by the county and to all intents a promissory note of the county. Bank v. Franklin Co., 65 Mo. 112.

— Hon. Henry G. Riley, Judge. (1) When one of the original parties to the contract or cause of action in issue and on trial is dead, the other party to such contract or cause of action shall not be permitted to testify in his own favor o,r in favor of any one claiming under him. Angelí v. Hester^ 64 Mo. 142; Ring v. Jamison, 66 Mo. 424; Meier v. Thieman, 90 Mo. 433; Messimer v. McCray, 113 Mo. 382; Weiermueller v. Scullin, 203 Mo. 466; Griffin v. Nicholas, 224 Mo. 275.

Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge. (1) There was not sufficient testimony to authorize a finding that plaintiffs’ son was struck while on the crossing, and therefore the court should have directed a verdict for the defendant. A verdict based on conjecture should not stand. Lynch v. Railroad, 112 Mo. 432; Moberly v. Railroad, 98 Mo. 183; Rapp v. Railroad, 106 Mo. 423; Peck v. Railroad, 31 Mo.

<p>CRIMES AND PUNISHMENTS: Appellate Practice: Sufficiency of Record. In an appeal from a conviction for a misdemeanor, the certified copy of the judgment and order granting the appeal, which were the only records filed in the appellate court, are examined and held to he free from error.</p>

Louis City Circuit Court. — Hon. George H. Williams, Judge. The demurrer to the evidence at the close of plaintiff’s case should have been sustained, because of plaintiff’s failure to prove ownership of the property alleged to have been damaged, which it was necessary to prove to entitle plaintiff to recover under the law of this case as announced by the St. Louis Court of Appeals on a former appeal. Parker-Washington Co. v. Transit Co., 131 Mo.

Louis City Circuit Court. — Eon. W. B. Eomer, Judge. (1) No abstract of the entire record of this cause has been filed in the office of the clerk of this court touching the matters, facts and court entries called for by the bill of exceptions: The bill of exceptions is not even filed. All that we have is a transcript of a portion of the bill of exceptions, and no attempt is made to furnish or file a transcript of the record entries made in the case by the trial court.

— Eon. E. G. Riley, Judge. (1) This action cannot he maintained because it is a penal action based upon certain statutes of the state of Missouri; and because the petition on its face •discloses that the shipment complained of was an interstate shipment, that is to say a shipment of a carload of hay from Rodney in the state of Missouri, to Memphis in the state of Tennessee.

-Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The court erred in asking Hr. Corley, the physician who attended the plaintiff, “what was the ■cause of the actual miscarriage that took place on the 17th,” and in permitting him to answer the question, notwithstanding defendant’s objection. Baehr v. Casualty Co., 133 Mo.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. (1) The demurrer to the evidence should have been sustained: (a) Because the proof shows that the accident was due to plaintiff’s own contributory negligence. Clancy v. Transit Co., 192 Mo. 615; McCreery v. Railways Co., 221 Mo. 18; Wheeler v. Wall, 137 S. W. 63; Newton v. Railroad, 132 S. W. 1195.

— Hon. W. B. Homer, Judge. (1) Although, the petition was filed in a justice court, yet a formal petition was drawn. And, having pleaded formally, the plaintiff should be held to his pleadings.

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) The rule of respondeat superior may not be invoked by one who knowingly causes a servant to act contrary to his master’s express instructions. Snider v. Crawford, 47 Mo. App. 8.

Louis City Circuit Court. — Hon. ' James E. Withrow, Judge. The proceeding by way of forfeiture and scire facias was wholly irregular, without jurisdiction in the court and void. It is immaterial liow the proceeding in contempt should be considered — that is, whether as a civil or a criminal case. The appeal bond was the one ordinarily given in civil causes. The obligation was to the Chicago, Burlington & Quincy Railway Company.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) By the judgment defendants are punished for offenses substantially different from that charged in the petition, and therefore cannot he sustained. In re Reese, 47 C. C. A. 87, following and distinguishing In re Lemon, 166 H. S. 548. (2) ¥m. Freudenau, as lessee, is not bound by the injunction against the Star Bottling Company, nor is the Star Bottling Company liable, as lessor, for the acts of its lessee.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file. Bouv. Law Dictionary, also State v. Hockaday, 98 Mo. 493. The 'filing is the actual delivery of the paper to the clerk without regard to any action that he may take thereon. State v. Hockaday, supra; Grubbs v. Cones, 57 Mo. 83; Dawson v. Cross, 88 Mo. App. 292.

Louis City Circuit Court. — Hon, George H. Williams, Judge. (1) The contract of September 13, 1904, was a new promise on good consideration and was amply sufficient to take the Young judgment out of the Statute of Limitations. The judgment, it is true, was five years, one month and twelve days old, at that time, and it was barred as a cause of action, but could have been revived by scire facias at any time prior to the expiration of ten years after its date.

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) When a pleading does not comply with the requirements of the statute as to setting forth the items of the account, or attaching the bill of items thereto, the adverse party may either move to have it made more definite or at the trial object to the introduction of any evidence in support of it.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) A judgment cannot be revived through proceedings upon a writ of scire facias in the name of the assignees. Such a judgment of revival is utterly void. Bick v. Tanzey, 181 Mo. 515; Goddard to the use of Hyde v. Delaney, 181 Mo. 564; Bank v. Lambert, 116 Mo. App. 620; Strother v. Hilliker, 120 Mo. App. 165; Bick v. Robbins, 131 Mo. App. 670'.

Ajopeal from St. Louis City Circuit Court. — Eon. Charles Claflin Allen, Judge.

Louis City Circuit Court.- — Hon. Hugo Muench, Judge. (1) The court erred in refusing to grant instruction No. 1 prayed for by plaintiff. Revised Statutes 1899, section 4213; Lumber Co. v. Roeder, 81 Mo. App. 337. (2) The court erred in refusing to grant instruction No. 2 prayed for by plaintiff. (3) The court erred in granting instruction No. 1 prayed for by defendant, Doering.

—Eon. B. G. Bavmey, Judge. (1) In an action for a negligent injury to real estate the rule of damages as generally adopted is to allow the plaintiff the difference between the market value of the land immediately before the injury occurred and a like value immediately after the injury is completed.

Louis City Circuit Court. — Eon. George E. Williams, Judge. (1) Abutting property holders have the right to make any use of a highway which is consistent with the paramount easement of the public. Felhauer v. St. Louis, 178 Mo. 646. (2) ITence, the liability in cases of this kind, is not for the construction or maintenance of an unlawful thing, but for the negligent construction or maintenance of a lawful thing.

— Hon. G. H. Shinker, Judge. (1) The court erred in refusing to give defendant’s peremptory instruction at the close- of plaintiff’s case and again when offered at the close of all the evidence in the cáse. McGfraff v. Transit Co., 197 Mo. 97; King v. Singling, 145 Mo. App. 293; Fowler v. Elevator, 143 Mo. App. 422; Cothron v. Packing Co., 98 Mo. App. 348; Breen v. Cooperage Co., 50 Mo. App. 215; Morarity v. S. & S. Co., 132 Mo. App. 653; Frisbie v. Casualty Co., 133 Mo.

— Hon. L. B. Woodside, Judge. (1) Order calling the election sufficient, the statute only requires the board to make an order. State ex rel. v. Allen, 178 Mo. 555; State v. Armstrong, 140-Mo. App. 721; R. S. 1909, sec. 9545. (2) Notice of election was'given, by mayor’s proclamation, which was sufficient. State ex rel. v. Gordon, 217 Mo. 110; Oloughlin v. Kirkwood, 107 Mo. App. 302; Ex parte Leach, 149 Mo. App. 326; State v. Du'gan, 110 Mo. 146.

— Row. John T. Moore, Judge. (1) The court erred in permitting the action to be dismissed as to H. M. Russell and a recovery to be had in favor of Paul Clark, because the statement of plaintiffs’ cause of action states a joint demand in favor of both Clark and Russell, and in such case a recovery cannot be had by one plaintiff alone. 22 • Encv. PL l& Pr. 576, 585; Davis v. Association, 63 Mo. App. 477; Timber Co. v. Railroad, 180 Mo. 463.

— Eon. Joseph D. Perkins, Judge. (1) Defendant has a right to object for the first time in the appellate court that the petition does not state a cause of action, and it matters not what the ground of objection may be, provided only that it be good and sufficient in law. Andrews v. Lynch, 27 Mo. 167; Burns v. Patrick, 27 Mo. 434; Syme v. Steamboat, 28 Mo. 335; Weil v. Greene County, 69 Mo. 281; Wells v. Association,' 126 Mo. 630; State to use v. Bacon, 24 Mo.

— Eon. Joseph D. Perkins, Judge. (1) A taxbill may be amended at any time to show tbe name of the real owner of the property, and from that time on is prima facie evidence against the' defendant as to the validity of the charges against the property therein described and of the liability of the defendant. St. Joseph ex rel. v. Forsee, 110 Mo. App. 237; Galbreath v. Newton, 45 Mo. 317.

— Hon. John T. Moore, Judge. (1) As respondent did not stand on its demurrer at close of plaintiff’s case, but put on its evidence, apReliant is entitled to all tbe evidence from the defendant’s side in aid of his case. Phelan v. Paving Co., 227 Mo. 704; McPherson v. Railroad, 97 Mo. 253; Klockenbrink v. Railroad, 172 Mo. 683.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. (1) The demurrer to the evidence should have been sustained, because plaintiff was guilty of contributory negligence in failing to use his own senses and knowledge for his own protection. McGrath v. Transit Co., 197 Mo. 107; Clancy v. Transit Co., 192 Mo. 615; Wheat v. St. Louis, 179 Mo. 572; Hagar v. Railroad, 105 S. W. 744. (2) Rules and regulations are not intended to displace ordinary prudence.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. Statement. — This action was brought before a justice of the peace of the city of St. Louis, to recover $84.50 for five “wash drawings” made to order for the defendant. Upon appeal to the circuit court the defendant moved to quash the summons and dismiss the suit on the ground that the justice had acquired no jurisdiction of the person. This motion was overruled and the defendant duly' excepted.

Louis City Circuit Court. — Ron. Rugo Muench, Judge. (1) The court erred in refusing to direct a verdict, for the reason there was no showing that the collision would not have occurred had the car been running at fifteen miles per hour, and therefore, no causal connection was established between the alleged operation of the car at a negligent rate of speed and the injury to decedent. Schmidt v. Transit Co., 140 Mo.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. (1) The court erred in overruling a peremptory instruction in the nature of a demurrer to the evidence offered by defendant at the close of plaintiff’s case, because plaintiff admitted signing the release pleaded in defendant’s answer, admitted that she could read and had an opportunity to read it and failed to introduce evidence sufficient to raise the issue of plaim tiff’s want of mental capacity to understand the nature…

Louis County Circuit Court. — No». G. A. Wurdeman, Judge. Plaintiff’s instruction No. 2 is erroneous, in that it fails to limit the amount of plaintiff’s recovery for doctor’s hill, medicine and nurse hire to the sums pleaded in her petition to-wit, sixty-five dollars, ten dollars and twenty dollars, respectively. Smoot v. Kansas City, 194 Mo. 513; Heinz v. Eailroad, 143 Mo. App. 38; Shinn v. Eailroad, 146 Mo'.

Original Proceeding by Certiorari. Tbe judgment or order of tbe county court granting a dramsbop license at tbe same term of court at Wbicb tbe petitions of tbe assessed tax paying citizens and guardians of minors of tbe block and municipal township are filed is void. R. S. 1909, sec. 7201; State ex rel. v. Heege, 37 Mo. App. 338; State ex rel. v. Mitcbell, 127 Mo. App. 455; State ex rel. v. Higgins, 84 Mo. App. 531.

— Eon. James D. Barnett, Judge. (1) The nonforfeiture law is not applicable because only one premium was paid on the policy sued on, and the nonforfeiture law (Sec. 7897, R. S. 1899) is, by its letter, applicable only when three premiums have been paid on the policy to which it is sought to be applied.

Louis City Circuit Court. — Hon. D. Fisher, Judge. (1) The court should have given appellant’s instruction No. 1 to find for plaintiff in the amount sued for, because, aside from the insufficiency of respondent’s evidence as to the leased premises beinguntenantable, the respondent’s evidence as to vacating said premises is not tenable; it appearing that respondent’s tenant remained after such alleged vacating and during all the time covered by appellant’s claim for rent in…

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) There was no ambiguity in tbe contract of release sued upon; tbe consideration clause was not a mere receipt but inter alia was a contract to pay tbe bill of Dr. Brokaw; and tbe court therefore erred in admitting parol evidence to very and extend its terms so as to include an agreement to furnish tbe services of Dr. Brokaw. Jackson v. Railroad, 54 Mo. App. 636; Tate v. Railroad, 131 Mo.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. The law allows but one bill of exceptions, which must be made up at the conclusion of the trial,' and all exceptions taken at previous terms of the court and preserved by term bill must be embraced in such final bill, otherwise they are regarded as waived. The statute is mandatory. Dougherty v. Whitehead, 31 Mo. 257; Pearce v; Shoe Co., 103 Mo. App. 662; Pendrich v. Lloyd, 129 Mo. App. 457.

<p>1. WATERS AND WATERCOURSES: Eavesdrip: Action for Damages: Pleading: Sufficiency of Petition. In. an action for damages for the erection and maintenance, on defendant’s land, of sheds or piles of lumber in such a position as to divert rainwater from its natural course on defendant’s land onto plaintiff’s adjoining land, causing it to be discharged against a building thereon, thereby injuring the same, the petition is li-eld to be a copy of the petition which was approved in Paddock v. Somes, 102 Mo. 226; and, accordingly, it is held that the petition states a cause of action.</p> <p>2. -: -: -: Right of Action: Pleading: Malice and Wilfulness: Surplusage. In an action for damages for erecting and maintaining sheds or piles of lumber in such a position as to divert rainwater from defendant’s land to plaintiff’s adjoining land, a showing that the erection and maintenance of the lumber was wrongful was sufficient to warrant a recovery; and allegations in the petition that defendant wilfully and maliciously piled the lumber should be rejected as surplusage, upon the withdrawal by the court of the prayer for punitive damages, and hence it was not necessary for plaintiff to prove that defendant’s acts were willful or malicious, in order to avoid, a variance between the allegations and the proof.</p> <p>'3. -: -: -:• Instructions. In an action for damages for wrongfully discharging rainwater upon plaintiff’s land, an instruction that if defendant, owning land adjoining that owned by plaintiff, piled lumber on his land in watersheds, so as to divert and discharge the rainfall thereon upon plaintiff’s land in greater volume than it would flow in its natural course, and thereby injured the wall of plaintiff’s building and lessened the value of his property, plaintiff could recover, was proper.</p> <p>4. -: -: -: -: Measure of Damages. In an action for damages for wrongfully discharging rainwater on plaintiff’s land, an instruction that the measure of damages was the difference in value of the property before and after the injury, resulting from the diversion of the water from its natural course and causing it to be discharged in increased volume against plaintiff’s building, but not from any other cause, and not from any such diversion of water as might thereafter take place, was correct.</p> <p>5. -: -: -: Right of Action. The act of a landowner in piling lumber on his land in such a manner as to cause the accumulation of rainwater thereon and its precipitation on adjoining land gives the owner of such adjoining land a cause of action for the damage sustained.</p> <p>6. -: -: -: Sufficiency of Evidence. In an action for damages for erecting and maintaining sheds or piles of lumber in such a position as to divert rainwater from defendant’s land to plaintiff’s adjoining land, evidence held sufficient to warrant a recovery by plaintiff.</p> <p>7. REAL PROPERTY: Right of Action for Injuring: Possession or Claim of Title: Waters and Watercourses. Possession of land under claim of title, or a claim of title in fee for more than sixteen years, with or without possession for that time, is sufficient title to maintain an action against an adjoining owner for the wrongful discharge of rainwater resulting in injury to such land.</p> <p>8. WATERS AND WATERCOURSES: Surface Water: Common Law Rule. The common law rule with respect to surface water prevails in this state.</p> <p>9. AFPELLATE PRACTICE: Misconduct of Jury: Review. The trial court’s denial of a new trial on the ground of misconduct of the jury, upon a hearing of contradictory affidavits, is conclusive on appeal.</p>

<p>1. APPELLATE PRACTICE: Conclusiveness of Verdict. A verdict supported by substantial evidence is conclusive on appeal.</p> <p>2. FIXTURES: Fences: Real Property. A fence located wholly on a lot is appurtenant to it.</p> <p>3. APPELLATE PRACTICE: Tria) Practice: Exclusion of Evidence: Offer of Proof. The exclusion of evidence will not be reviewed on appeal, where the record does not show what it would have been, had it been admitted.</p> <p>4. -: Right to Complain: Instructions: Refusal of Instruction Making Admission: Fences. In an action for damages for the removal of a fence, where it appeared that plaintiff and defendant owned adjoining lots, and each claimed that; the fence w.as on his lot, held that defendant will not be heard to complain, on appeal, of the refusal of an instruction that if plaintiff, before he purchased his lot from defendant, examined it and saw the location of the fence, and if he intended to purchase and did purchase the land between the fence and the other line of his lot, then plaintiff was not entitled to recover, since the instruction admitted that, when plaintiff purchased the lot, he saw that the fence was on it.</p> <p>5. CONVEYANCES: Conclusiveness: Intention of Grantee: Fences: Instructions. In action for damages for the removal of a fence between lots owned, respectively, by plaintiff and defendant, an instruction that if plaintiff, before he purchased his lot from defendant, saw the fence on the lot and' noted its- location, and if plaintiff intended to purchase and did purchase the land between the fence and the other line of his-, lot, then plaintiff was not entitled to recover, was properly-refused, since it did not call attenion to any acts which might have indicated such intention on the part of the plaintiff, and' it was not competent for the jury to find what his intention may have been unless it was indicated by acts, and since, also, the instruction would make the intention of plaintiff, as purchaser,. prevail over the deed, when the deed was the measure-of his title.</p> <p>6. -: -. A deed is the measure of the grantee’s title, and, in the absence of fraud or mistake, he cannot be assumed to have intended to purchase anything not covered by it, and he is conclusively presumed to have purchased all the-ground between the lines called for in it.</p> <p>7. FIXTURES: Fences: Real Property. A fence is part of the-freehold and passes with the land on which it is built.</p> <p>8. REAL PROPERTY: Boundaries: Fixing by Agreement: Effect: on Third Parties: Fences. A fence between two tracts of land,, put up by agreement between the owners, may be binding on. them as indicating the boundary line, but is not binding on a. third party, unless he has knowledge of the agreement and assents to it.</p> <p>9. INSTRUCTIONS: Refusal: Not Based on Any Evidence. Air instruction which submits a hypothesis not warranted by any testimony in the case is properly refused.</p> <p>10. --: -: Covered by Other Instructions. It is not error to refuse an instruction which submits- matters that are fully covered by other instructions given.</p> <p>11. CONVEYANCES: Conciusiveness: Fences: Instructions. In-.an action for damages for the removal of a fence which each of the parties (who were adjoining proprietors) claimed was-located on his lot, where the jury were clearly instructed as to the matters of the location of the fence with reference to the lots and the rights of the respective parties as dependent thereon, the refusal of an instruction offered by-defendant, that if, at the time the fence was erected by defendant (who was plaintiff’s grantor), there were stakes set in the line between the two lots to designate the line between them, and the stakes designated .the true line, and defendant built the fence on that line, plaintiff could not recover, was not reversible error, inasmuch as it was covered by other instructions, and inasmuch, also, as it omitted reference to the conceded fact that plaintiff bought his lot from defendant and had a right to rely on the description of it given in the deed, unless estopped by same act of his own, of which there was no evidence.</p> <p>12. REAL PROPERTY: Boundaries: Monuments. Wooden stakes or pins, about an inch square, driven by an auctioneer at points supposed to be the corners of lots in a block, several years after the addition was laid out, do not constitute permanent monuments. .</p> <p>13. CONVEYANCES: Conclusiveness: Real Property: Monuments. A grantor and his grantee' are hound by the description in the deed and by the description of the lot as found in the recorded plat of it, and not by temporary stakes set in the ground, as locating or bounding the lot, although they may, by agreement, establish a different boundary from that called for in the deed, or may, by long acquiescence in a fixed boundary, marked out and established, estop themselves from asserting that it is not the true line.</p> <p>14. REAL PROPERTY: Boundaries: Estoppel: Sufficiency of Evidence. In an action for damages , for the removal of a fence between lots owned, respectively, by plaintiff and defendant, held that there was no evidence to warrant a finding that plaintiff was estopped to claim that the boundary line of his lot was other than that described in the deed thereto.</p>