Volume 167 — Missouri Appeal Reports

— Son. A. S. Waller, Judge. ' (1) Plaintiff’s petition does not state facts sufficient to constitute a cause of action against the defendant. This objection is not waived by pleading to the merits. Section 1804, Revised Statutes of Missouri, 1909; Paddock v. Somes, 102 Mo. 226; Hudson v. Cahoon, 193 Mo. 547. Such defect is incurable. Marx Co. v. Watson, 168 Mo. 133. An objection may be raised for the first time in the appellate court. Jackson v. Mining Co., 106 Mo.

<p>DEAD ANIMAL: Possession: Directed Verdict. An ordinance of a city provided that the person in possession or control of a dead animal should remove it out of the city limits within twelve hours after death. A farmer brought his horse on Saturday evening to a veterinarian in the city to have one of its teeth pulled. In endeavoring to do so, with the owner’s help, the horse suddenly died. The owner immediately engaged a man to haul it away, which the latter could not do that evening, it being about dark, but agreed he would do so next morning. The owner left. The horse was not taken away as agreed and when the verterinariam learned that it had not been, he endéavored to get the city officials to do' so. Finding they would not, on Monday morning, he had it hauled off. Held, that though the proof showed the horse remained on the veterinarian’s premises more than twelve hours, yet it did not show him to be in possession of it in the sense of the ordinance, and a directed verdict for defendant was properly ordered.</p> <p>Query: Whether, conceding the veterinarian was in possession of the horse, he was yet not guilty, in view of his effort to get it taken off when he learned the man employed by the owner had not done so.</p>

<p>BAWDY HOUSE: Costs: Prosecuting Witnesses. In a prosecution by information filed by the prosecuting attorney on tbe written affidavit of several complainants, for keeping a bawdy bouse, of which charge the defendant was acquitted, the complainants are not liable for costs as prosecuting witnesses.</p>

Circuit Court. — Hon. Wm. D. ■ BusJc, Judge. (1) The seller of machinery fixtures, which are sold under a conditional sales contract, or where a chattel mortgage is given at the time of the sale to the seller, gives the seller a superior right and title to the fixture, to that of a prior mortgagee of the land and machinery. Anderson v. Creamery Co., 67 Pac. (Idaho) 493; Binkley v. Forkner, 19 N. E. (Ind.), 753; Northwestern Mut. Life Ins.

— Eon. John M. Williams, Judge. (1) The appeal from the judgment with supersedeas in the former suit superseded the judgment until this court rendered its judgment. Ketehum v. Thatcher, 12 Mo. App. 185; Young v. Thrasher, 61 Mo. App. 418; Chotean v. Rowse, 90 Mo. 191; Mason v. Railroad, 226 Mo. 224; Cohn v. Selman, 93 Mo. 574.

— Hon. Fred. Lamb, Judge. (1) A change of beneficiary in the certificate of a beneficial association must be made in the manner provided by the by-laws, subject to three exceptions: First, where the association has waived strict compliance with the by-laws before the rights of the original beneficiary have become vested; second, where it is beyond the power of the insured to comply strictly with the by-laws, a court of equity will treat the change as legally made, where all…

— Eon. Alonzo D. Burnes, Judge. (1) Except where deprived of their jurisdiction by statutory enactment, courts of equity have always entertained suits to set aside awards for prejudice or partiality of the arbitrator, and for some other causes. Their jurisdiction in such matters is ancient. 3 Ency. Plead, and Prac. 154; 3 Cyc. 753.

— Hon. N. D. Thurmond, Judge. (1) Where a corporation, becomes insolvent it is the duty of the directors to make an assignment for the benefit of creditors. Huse v. Ames, 104 Mo. 91. (2) The assignment dissolves the corporation. Kehlor v. Lademann, 11 Mo. App. 550. (3) All the assets of the assigned corporation, including unpaid balance on stock passes to the assignee, by the deed of assignment, to he held in trust for the benefit of the corporation creditors.

<p>1. NEGLIGENCE: Master and Servant: Defective Tools. Plaintiif, while at work cutting away an old concrete base for -a huge flywheel in an ice plant, using a piece of a file and, striking it with a steel hammer, was struck in the eye by a piece of steel or concrete ahd the eye destroyed. The foreman gave him the file, and instructed him how to use it, and he was using it as instructed. He did not know the danger of striking its brittle end with a steel hammer. Eeld, that the file, on account of its temper, was not a reasonably safe tool for the work the foreman directed to be done with it, and that the defendant was guilty of a negligent breach of its duty to furnish its servants with reasonably safe tools.</p> <p>3. -: -: Evidence. In this class of cases plaintiff must not only show negligence of the master, but also that such negligence caused the injury, and if the accident might have resulted fr'om more than one cause, for one of which the master is liable and not for the others, it must be. shown that the injury arose from the cause for which the master is liable.</p>

<p>1. INJUNCTION: Municipal Corporations: Tax Payer’s Remedy. To prevent illegal action on the part of municipalities tending to an increased taxation on their constituents, the state, through its appropriate officer, or any taxpayer of the municipality, may institute a proceeding for an injunction.</p> <p>2. -: Petition: Indefinite: Judicial Notice. A petition is not indefinite because it fails to state the class of the city that is being sued, for the courts take judicial notice of the population of cities, which determines their class.</p> <p>3. INJUNCTION: Municipal Corporations. Where a city is about to alter the grade of a street at the expense of the city and thereby cast upon the taxpayers of the city an additional burden, any taxpayer is entitled to relief by injunction.</p>

— Eon. Wm. D. Bush, Judge. The court should have directed a verdict for the defendant. First, because there was an entire failure of proof to support the allegations of the petition and to support the theory of the plaintiff that an oral contract for a continuous carriage was made with the defendant. He is bound by the theory adopted by him and cannot recover upon any other. This is the settled law of this state.

<p>Appeal from Clinton Circuit Court. — Hon. Alonso T>. Burnes, Judge.</p>

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

— Hon. Wm. G. Ellison, Judge. The application, by express agreement makes the by-laws a part of the contract of insurance, and such by-laws are binding upon both parties to the benefit certificate. Lloyd v. M. W. A., 113 Mo. App. 19; Mc-Lendon v. W. O. W., 64 S. W. 36. The competency of' parties to themselves arrange the terms and conditions of the contract and to expressly determine and declare when it shall become operative cannot be questioned.

<p>Appeal from Jackson Circuit Oonrt. — Son. B. M. Middlebrook, Judge.</p>

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

<p>1. INDICTMENT AND INFORMATION: Misdemeanors: Statutory Language. An information, in statutory misdemeanors, is sufficient if it contains substantially the language of the statute. It is not necessary to use the exact language of the statute.</p> <p>2. -: Venue. It is not necessary to state any venue in the body of an indictment or information, but the county or other jurisdiction named in the margin or caption thereof shall be taken to be the venue for all the facts stated in the body of the same.</p>

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

<p>1. VENDOR AND VENDEE: Personal Property: Delivery: Exchange. A negro man wished to purchase a buggy and harness. S took him to R’s place of business and helped him select a buggy and harness at the price of fifty dollars. S said to the salesman that he would pay for it and to charge it to him, which was done; but no money was paid and no writing signed. S and the negro left the place, the latter to return and get the property. He did return that afternoon and took possession of the property, but before taking it away he concluded to exchange the harness for another set worth five dollars more and did so, paying the five dollars himself. It was held that conceding the negro took possession of the property and then exchanged the harness, the agreement of S to pay was. valid. But if the harness originally purchased was not delivered, and another set was substituted, S was discharged from his agreement to pay.</p> <p>2. -: -: -: Sale: Statute of Frauds. Though a sale of specific and ascertained personal property is valid and title passes at common law without delivery, yet if the price is over thirty dollars and there is no part payment or writing, it is invalid under the statute of frauds.</p>

<p>Appeal from Andrew Circuit Court. — Hon. A. D. Burnes, Judge.</p>

<p>1. STREET PAVING: Equitable Owner: Protest. One who has an equitable title to his property abutting on a street to be payed, by haying a contract therefor, having paid part of the • purchase price and taken possession, is a property holder within the meaning of the statute as to the majority protesting against the improvement.</p> <p>2. -: -: -: Resident. One who removes from a city to the country and resides there with his family, and votes there, though intending to return if conditions get better, is not a resident of the city.</p> <p>3. -: -: -: -: Voter: Resolution. One, to be a qualified property owner to protest against a street improvement, need not be a voter, but he must have resided in the city at the date the resolution for the improvement is passed.</p>

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

<p>Appeal from Andrew Circuit Court. — Ron. A. D. Burnes, Judge.</p>

— Hon. John M. Williams, Judge. (1) There was no duty imposed by law on defendant, under the circumstances of this case, to keep its station open before the arrival of the train which plaintiff was going to take. Railroad v. Commonwealth, 102 Ky. 300; Sandifer’s Admr. v. Railroad (cited below). (2) The plaintiff was not obliged to take shelter in the box car.

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

<p>Appeal from Jackson Circuit Court. — Hon. James E. Goodrich, Judge.</p>

Randolph Circuit Court. — Éon. A. H. Waller, Judge. The defendant, not being responsible for the contact of the wires, the law is that there is no negligence on its part unless it had a reasonable time after the dangerous act was committed, or the dangerous situation created, in which to discover the danger, and obviate its probable consequences. Clonts v. Gras Light Co., 144 Mo. App. 582; Frauenthal v. Gras Light Co., 67 Mo. App. 1; Abbott v. Mining Co., 112 Mo.

— Hon. Fred Lamb, Judge. (1) Eespondent cannot recover in. this action, as it is improperly brought, being an action for damages to the stock of the respondent, and the recovery, if any, must be for damages to the realty. Defendant’s sewer system is permanent, and the damages for which the city would be liable on account thereof are for permanent injury to the land, and not for remote injuries to plaintiff’s stock, made sick by drinking the polluted water.

<p>1. NEGLIGENCE: Master and Servant: Mines. Plaintiff’s husband was killed by the fall of a large rock from the roof of an entry of a coal mine. He was engaged with other miners in “drawing pillars” or removing walls of coal supporting the roof. They had withdrawn from their work some distance according to plaintiff’s testimony, and were eating their, lunch when the rock fell. The evidence of defendant tended to prove that the rock had fallen from the roof where the miners were at work. S-eld, that this issue was properly submitted to the jury.</p> <p>2. PLEADING: Petition: After Judgment. A petition must be read as a whole, and where it is not attacked until after judgment, should he scanned with a friendly eye and all doubts resolved in favor of the pleader.</p> <p>3. -: Mines: Master’s Duty. Where the petition does not allege and the proof does not show that the mine was “generating explosive gas” the duty of defendant is not measured by the provisions of Sec. 8*447, R. S. 1909, but by the general rule requiri'hg the master to exercise reasonable care to provide his servant a reasonably safe place in which to work.</p> <p>4. NEGLIGENCE: Instructions. An instruction which assumes to cover the whole case, hut omits reference to the issues of whether or not the dangerous character of the rock which caused the injury, would have been discoverable to an ordinarily careful and prudent master in the exercise of due care toward his servant, and that defendant did employ due care in the discharge of his duty as master, is erroneous.</p> <p>5. -: -: Aggravating Circumstances. Where there is neither allegation of malice, wickedness or wantonness, nor evidence of any aggravating circumstances, it is improper in an instruction to include the words “having due regard to the mitigating or aggravating circumstances.”</p>

<p>1. NEGLIGENCE: Master and Servant: Defective Machinery.’ Plaintiff, a miner, was operating a coal mining machine when one of the links of a heavy wrought iron feed chain broke and a piece of it struck him in the leg. The chain had become worn and dangerous and defendant knew its condition. It is held that a consideration of all of the evidence warranted the submission of the case to the jury.</p> <p>2. -: -: Assumed Risks. The rule is now firmly embedded in our laws that the servant does not and cannot assume the risks caused by the master’s negligence.</p> <p>3. -: -: Knowledge of Defect. There is a vital difference between knowledge of the extent and character of a danger and. knowledge of a defect in which lurks a danger, the extent and imminence of which is not discoverable to the servant by the reasonable use of the opportunities his situation affords.</p>

<p>1. BILL OF EXCEPTIONS. Where a court grants, “until the last day of next term of this court to file” a hill of exceptions and the next term was not held, owing to the absence of the judge, and such bill of exceptions was filed before the beginning of the second term after said order was made, it is filed in time.</p> <p>2. ATTORNEY AND CLIENT: Settlement of Cause. The general authority of an attorney does not give him authority to compromise his client’s claim or to make any agreement that will sacrifice his client’s cause without express authority.</p> <p>3. INSTRUCTIONS: Violation of Ordinance: Reasonable Doubt. In a prosecution for violation of a city ordinance where the offense charged is also an offense under the public laws of the State, it is error to refuse an instruction that the burden is on the plaintiff to establish by proof the guilt of defendant beyond a reasonable doubt.</p>

— How. Fred Lamb, Judge. (1) Plaintiff was an indorser on the note and only secondarily liable, and was therefore released by the unauthorized extension of time, it being made without her knowledge and for a valuable’ consideration. Sec. 10090 and 10161, R. S. 1909; Jamison v. Copher, 35 Mo. 483; Nelson v. Brown, 140 Mo. 580. Therefore, •whether the payment was made by Martha Wilson the plaintiff or her husband G. W. Smith, the payment was voluntary.

<p>1. NEGLIGENCE: Defective Sidewalk: Instructions. Plaintiff was injured by falling through a defective culvert over a street crossing, on a dark night, there being no street lights. The crossing was constructed of boards and had been out of repair a sufficient length of time to charge the city with notice, field, that there was no evidence that the plaintiff was guilty of any negligence whatever, and it was, therefore, unnecessary to submit to the jury by instruction the question of whether or not plaintiff was in the exercise of ordinary care.</p> <p>2. -: Municipal Corporations: Financial . Ability to Meet Obligations. Evidence concerning the extent of the financial ability of a city to meet all of its duties and obligations as a corporation for the purpose of showing ordinary care, is inadmissible in this State, because it is the absolute duty of municipalities to keep their streets in a reasonably safe condition for travel at all times and under all conditions, except reasonable time to repair or remove obstructions or those caused by the act of God.</p>

<p>1. ACCORD AND SATISFACTION: Disputed Claims. Where a debtor in good faith disputes the amount claimed by his creditor to be due and tenders the amount admitted to be due, if the-tender is on condition that it is in full payment of the amount due, and the creditor accepts the tender, this would amount to accord and satisfaction.</p> <p>2. -: Consideration. The acceptance of a part of an admitted debt in discharge of the whole, will not bind the creditor for lack of consideration; but if there is an honest difference as to the amount due and the parties agree that the debtor may pay a less sum in full of the creditor’s claim and the former does so, he is discharged.</p>

<p>EXECUTIONS: Sales: Personal Property. A short time before a levy on an execution was made on personal property, the judgment debtor executed a bill of sale for same to other .creditors. The purchasers did not attempt to take possession, but suffered it to remain in the debtor’s possession and be sold at public sale. The sheriff garnished the proceeds of the sale in the hands of the clerk. The latter deposited them in court and the claimants filed interpleas. Held, that the question was one of fraud in law and not one of fraudulent intent, and the demurrer to interpleader’s evidence should have been sustained.</p>

<p>1. APPELLATE PRACTICE: Rules of Decision: Reasons Assigned by Trial Court: Conclusiveness. The appellate court is not bound by erroneous reasons assigned by the trial court, if, on consideration of the whole case, it be of the opinion that the conclusion arrived at or the judgment rendered is a correct ■ one.</p> <p>2. LIBEL AND SLANDER: Foundation of Action. The foundation of an action for defamation, whether libel or slander, is 'the injury done to reputation.</p> <p>3. -: Action by Corporation: Injury to Business: Going Concern. In an action by a corporation for a libel, alleged to have injuriously affected its business, it is essential to a recovery that the corporation prove that, at the time of the publication, it was engaged in the particular business alleged to have been affected.</p> <p>4. -: Foundation of Action. Defamatory words, to be actionable, must prejudice the one concerning whom they are published, in the special proféssion or business in which he is actually engaged, and it is not sufficient that the words merely be injurious to one, whatever his pursuit. As to the latter, it is immaterial whether or not he is in business, but as to the former, if the publication is as to his trade, it must appear that he was in that trade when the publication was made.</p> <p>5. EVIDENCE: Presumptions: Continuation of Status Quo. A state of facts once shown to exist is presumed to continue until the contrary is shown.</p> <p>6. -: Corporations: Proof of Doing Business. In an action by a corporation for libel, the mere fact that a certificate of incorporation and authority to carry on business was issued, was no proof that the corporation ever engaged in business or was so engaged at a later time when the alleged libelous publication was made.</p> <p>7. LIBEL AND SLANDER: Action by Corporation: Injury to Business: Sufficiency of Evidence. In an action by a corporation for alleged libel directed to the management of its business, evidence held to be insufficient to establish that the corporation was carrying on business at the time the alleged libelous publication was made, and hence it is held that the trial court properly directed a verdict for defendant.</p>

— Hon. ■ David H. Eby, Judge. (1) The peremptory instruction asked by the appellant should have been given to the jury. Where the undisputed evidence shows that the plaintiff should not recover the court should peremptorily instruct the jury for the defendant. Knorpp v. Insurance Company, 195 Mo. 637; Cornovski v. Transit Co., 207 Mo. 263; Furber v. Bolt Co., 185 Mo. 301; Powell v. Price, 111 Mo. App. 320; Howard v. Hurst, 137 S. W. 1; May v. Crawford, 150 Mo. 504.

Louis City Circuit Court. — Eon. William B. Eomer, Judge. (1) Where a foreign corporation appoints a sales agent with exclusive right to sell its goods and authority to make contracts, and such an agent maintains a branch office in Missouri where he makes contracts on behalf of the corporation, grants requests for cancellation, extends the time for delivery, makes collections, and in general, does in behalf of the corporation all acts necessary to be done in connection with…

— Eon. Charles D. Stewart, Judge. (1) .Upon the entire record, plaintiff is not entitled to recover, (a) No fraud or deceit was perpetrated on Cook & Devine, but they acted on their own responsibility, and plaintiff cannot recover on account thereof. Anderson v. McPike,' 88 Mo. 292; Edwards v. Noel, 88 Mo. App. 439'; Warren v. Ritchie, 128 Mo. 311; Bryan v. Hitchock, 43 Mo. 527; Dean v. Whire,' 63 Mo. 186; Champion, etc., v. Heskett, 125 Mo.

Louis County Circuit Court. — Hon, John W. McElhinney, Judge. Held: ■“If both parties are guilty of improper conduct neither as entitled to a divorce.”' Morrow v. Morrow, 62 Mo. App. 299 ; Nagel v. Nagel, 15 Mo. 53; Hoffman' v. Hoffman, 42 Mo. 547; McKeehn v. McKeehn, 84 Mo.' 403; Wells v. Wells, 108 Mo. App. 88. (4) ' In conclusion, the judgment is against the preponderance of the evidence.

— Hon. Chas. D. .'teioarl, Judge. ■ Instruction No. 1 given on behalf of plaintiff is erroneous in that it permits a recovery for an unreasonable delay in transportation. Plaintiff can recover, if at all, only upon tbe allegations of Ms petition. Gibler v. Railroad, 148 Mo. AppV 475'; Evans v. Railroad, 222 Mo; 435; Roscoe v. Railroad, 202 Mo. 576.

— Hon. James D. Barnett, Judge. (1) The petition improperly joins a canse of action ex contractu and a canse of action ex delicto, and the court erred in overruling defendant’s demurrer, defendant’s objection to the introduction of any evidence, the motion for new trial, and motion in arrest of judgment, raising this objection. Pipe Co. v. Eailroad, 137 Mo. App. 479; Barnes v. Eailroad, 119 Mo. App. 303; The Southworth Co. v. Lamb, 82 Mo. 242.

<p>1. CONVERSION: Necessity of Proving Ownership. In a suit for conversion, it is essential to a recovery by plaintiff that he prove his ownership of the property involved.</p> <p>2. SALES: Construction of Contract: Question of Law. Whether a given contract is one of sale which passes the property is a question of construction, to be determined by the court as a matter of law.</p> <p>3. -: -:' When Title Passes. If a contract of sale requires anything to be done in the way of inspection, testing, weighing, or the like, before acceptance, title to the property remains in the vendor until such has been accomplished.</p> <p>4. -: Executory Contract: Performance. An executory contract of sale becomes executed only upon delivery -and acceptance of the goods in accordance with the contract and with intent tb pass title.</p> <p>5. CONVERSION: Necessity of Proving Ownership: Sales: Facts Stated. A coal company entered into a contract to sell plaintiff coal f. o. b. cars in St. Louis, subject to plaintiff’s right to reject shipments not meeting certain tests. This contract was 'afterwards modified so as to provide for delivery f. o. b. cars at the mine. A coal company loaded a large number of ears of coal at its mine on defendant’s railroad, and sought to bill them to plaintiff, but defendant railroad company billed them to itself. In a suit by plaintiff against defendant railroad company for conversion, held that, inasmuch as plaintiff had the right to reject the coal if it did not meet the required tests, title thereto would not vest in plaintiff until it had accepted the same, and as no such acceptance was shown, plaintiff could not maintain the action.</p>

— Eon. David E. Eby, Judge. (1) The court erred in permitting defendant Sidwell to show that the case of State v. Ogle had been pretty generally discussed in the community and that others had made statements similar to those attributed to him. Neither mitigation nor justification was pleaded, the answer being a general denial; hence such evidence was incompetent for any purpose. Sec. 1838, R. S. 1909; Baldwin v. Fries, 46 Mo. App. 288; Bucldey v. Knapp, 48 Mo. 152.

Louis City Circuit Court. — Ho». Daniel D. Fisher, Judge. (1) The capital stock of a corporation is a trust fund charged with the payment of debts, and must be treated as such. The contract alleged in the petition is unlawful, ultra vires. It is contrary to public policy for a corporation to buy and sell its own stock. Brice on Ultra Vires, p. 94; Am. & Eng. Ency. Law, p. 703; Trans.

— Hon. James T. Neville, Judge. (1) The false statements contained in the city engineer’s report to the council, by which excessive charges for flint ledge, lime rock and earth excavation were sought to be created against the property of appellants, and by which it was made to appear that the work of constructing the sewer had been completed in accordance with the contract, plans and specifications, having been made with the intention of securing the issuance of the taxbills…

— Eon. W. N. Evans, Judge. (1) The lease having less than two years to run on, the Hardcastle land could not he assigned without the written consent of plaintiff. R. S. 1909, Sec. 7880. (2) A lease held for a term of years is personal property and on the death of the lessee it goes to his legal representatives. Kelly’s Probate Guide, Edition of 1884, Sec. 104; Sutter v. Lockman, 39 Mo. 91; Orchard v. Store Co., 225 Mo. 436.

<p>Appeal from Howell Circuit Court. — Hon. W. N. Evans, Judge.</p>

— -Hora. G. E. Shinlcer, Judge. (1) It is elementary law in this State that a demurrer admits, every fact of the plaintiff’s case to be true, which the evidence tends to prove, whether the evidence be direct or indirect, as well as reasonable deductions that are to be drawn therefrom. Morgan v. Mining Co., 141 8.

— No». Guy D. Kirby, Judge. (1) Lowest and best bidder required and protects public against favoritism and corruption. R. S. 1909, Sec. 9255; Schoenberg v. Field, 95 Mo. App. 241; Curtice v. Schmidt, 202 Mo. 703; Paving Co. v. McLord, 145 Mo. App. 145. (2) An ordinance requiring material to be purchased of some designated person, or which was manufactured by some designated person, was a violation of such salutary provision and was void. Paving Co: v. McLord, 145 Mo.

Writ of error to Pulaski Circuit Court. — Hon. L. B. Woodside, Judge. '' ' (1) The first assignment of error is the refusal to give declaration of law numbered 2, requested by plaintiff in error. Wright v. Pratt, 17 Mo. 43; Lumber Co. v. Wright, 114 Mo. 326; McGrath v. Railroad, 128 Mo. 1; Nicholls-'Shepard Co. v. Donavon, 67'Mo. App. 286-; McFaul v. Haley, 166 Mo. 56; Baker v. Henry, 63 Mo. 517.

— Hon. W. N. Evans, Judge. (1) Fraud must be proved, it may not stand upon a fog of suspicion or be based upon mere presumption. Kilpatrick v. Wiley, 197 Mo. 123; Lomak v. Railroad, 119 Mo. App. 192.

— Son. W. N. Evans, Judge. (1) The proper measure of damage is the difference between the market value of the hub timber at the place of delivery and the contract price. If there is no market value of such timber at the place of delivery, the value at the nearest available market may he shown and allowances made for transportation charges. 24 Am. & Eng. Ency. Law, 1150-54; Wall v. Storage Co., 87 S. W., 574, 112 Mo. App. 659; Marks v. Cooperage Co., 103 S. W. 20.

— IIon. L. B. Woodside, Judge. (1) There being a clear space as deceased approached defendant’s main track where he was struck and killed, and after he passed the obstruction of the granary and car standing on the sidetrack and before he entered upon the main track from which he could see, had he looked, the approaching train for a distance something like nine hundred feet, as disclosed by the evidence, he was guilty of such contributory negligence in going upon the track…

— Hem. Thos. J. Seehom, Judge. (1) The court erred in the admission of testimony offered by plaintiff. (2) The court erred in not granting the peremptory instruction asked by defendant at the close of plaintiff’s case and at the close of the entire ease. Mason v. Railroad, 27 Kan. 83; Railroad v. Schmidt, 67 Kan. 8; Mcllhoney v. Railroad, 120 N. C. 557; Beck v. Railroad, 25 Oregon, 32; Zirkle v. Railroad, 67 Kan. 77; Ry.

— Hon, Francis H. Trimble, Judge. (1) When tlie title to land is in the wife and she allows her husband to manage the same without any thing showing that he acted as her agent, she is con-conclusively presumed to concede his right to use the proceeds. Holt v. Coyler, 71 Mo. App. 285; Bank v. Winn, 132 Mo. 80; Donovan v.' Griffith, 215 Mo. 149; Schroyer’s Appeal, 40 Pa. St. 420; McGlinsey’s Appeal, 14 Serg. & R. 64; Hamilton’s Appeal, 88 Pa. St. 363; Wormsley’s Appeal, 20 Atl.

— Hon. Wm. D. Rusk, Judge. (1) Defendant’s demurrer should have been sustained for the following reasons: (a). Deceased was guilty of contributory negligence since he must have left the traveled roadway and fallen over an embankment that was obvious and with which he was familiar.

<p>Appeal from Buchanan Circuit Court. — Hon. Wm. D. Busk, Judge.</p>

<p>1. CONTRACTS: Sale and Delivery of Shares of Stock. Plaintiff sued the defendant, the president and manager of California Telephone Company, to recover damages for breach of a contract for the sale and delivery of certain shares of stock in the above named company. The transaction was carried on by letter, the contents of which were not in evidence, because neither originals nor copies were in existence, but there was evidence that defendant destroyed the bill of sale and other papers, after the contract was entered into. Judgment was for defendant, but the trial court granted a new trial because an instruction, which in substance told the jury that dáiendant was plaintiff’s agent, was given to the jury. Held, such an instruction was erroneous, and a new trial was rightfully given.</p> <p>2. EVIDENCE: Spoliation of Documents. Where spoliation of documentary evidence is proved against a party, he is held to admit the truth of the complaining party’s allegations.</p> <p>3. CONTRACTS: Breach: Damages. Where the contract of sale of certain shares of stock is admitted and a breach indubitably established, there is only one issue of fact to go to the jury,' viz., the quantum of damages.</p> <p>4. INSTRUCTIONS: Measure of Damages: New Trial. An instruction on the measure of damages which directed a verdict for defendant unless the jury found' that plaintiff' had suffered substantia] damages for the breach of the contract, is erroneous and sufficient to warrant an order for a new trial.</p>

- — Hon. John M. Williams, Judge. The instrument sued on was' a negotiable one, strictly complying, with the requirements of' Sec. 9972, R. S. 1909. It being in the. hands of the defendant, who was the payee in the note, it was “presumptively a subsisting obligation.” Bush v. Brandecker, 123 Mo. App. 470. When Wiest put his name upon the back of the note without otherwise indicating his intention, he became, as a matter of law, an indorser.

<p>1. FALSE IMPRISONMENT: Evidence: Agent. A policeman arrested a man for stealing halters, the property of a corporation. After detaining him a few hours, he was released. In an action for false imprisonment it was sought to show that the corporation ordered, or sanctioned, the arrest, by the admissions of its superintendent made the next day. It was held that such evidence was incompetent.</p> <p>2. -: -: -: Res Gestae: Principal and Agent. Am agent cannot bind a corporation by admissions as to a patt transaction. As to that, his agency has ceased, and what he says is not a part of the res gestae.</p>

<p>Appeal from Mercer Circuit Court. — Hon. Geo. W. W. Wanamaker, Judge.</p>

<p>Appeal from Sullivan Circuit Court. — Son, Fred Lamb, Judge.</p>

<p>Appeal from Chariton Circuit Court. — Eon. 8. J. Jones, Special Judge. •</p>

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

<p>Appeal from Buchanan Circuit Court. — Hon. Wm. D. Rusk, Judge.</p>

— lion. Hat. M. Shelton, Judge. (1) Before a purchaser can defeat the entire claim of the purchase price of a chattel he must not only allege and prove that the machine did not answer the demands of the warranty, but he must also show that he returned or offered to-return the machine, or that it was entirely worthless for any purpose. McCormick v. Brady, 67 Mo. App. 292.

— Eon. L. B. Woodside, Judge. (1) Under the evidence the judgment should have been for the; defendants, as the plaintiffs failed to show any right to prosecute the action. Fugate v. McManama, 50 Mo. App. 39; Newmeyer v. Railroad, 52 Mo. 81; Ranney v. Bader, 67 Mo. 476; Dennison v. City of Kansas, 95 Mo. 416; State v. Wood, 155 Mo. 485; Grivens v. Mcllroy, 79 Mo.

Polk Circuit Court. — Noto. G. E. Skinker, Judge. (1) The plaintiff was entitled to the peremptory instruction to find the issues for him. Secs. 772, 773, 774, 775, and 815, R. S. 1909; Crook v. Peebly, 8 Mo. 344; Wright v. Richmond, 21 Mo. App. 76 ; Howlett v. Erie., 79 Mo. App. 660- Gates v. Crandall, 123 Mo. App. 414. (2) A person taking up animals must show that all the prerequisites of the law have been complied with.

— Hon. L. B. Woodside, Judge. (1) Under the testimony the plaintiff was entitled to recover. The deed was executed on the 20th day of August, 1897; the covenant was breached in 1907. Plaintiff suffered substantial damages and had a right of action therefor after the final decision of the court against his title. R. S. 1909, Sec. 1888; Blondeau v. Sheridan, 81 Mo. 554; 8 Am. & Eng. Ency. Law (2 Ed.), 91-4.

— Eon. W. N. Evans, Judge. (1) An application for new trial, on the ground of newly discovered evidence must show diligence has been used. Barry v. Blumenthal, 32 Mo. 45;. Shaw v. Besch, 58 Mo. 107. (2) An application for a new trial upon the ground, of newly discovered evidence must show that the party has used all due diligence, and that the evidence is competent, material and not cumulative.

<p>Appeal from Nodaway Circuit Court. — Eon. Win, C. Ellison, Judge.</p>

— Hon. Nat M. Shelton, Judge.. 1. The contract offered in evidence and under which the property in controversy was delivered by plaintiff to Talhnan is a consignment or bailment for .sale, and not a sale, conditional or otherwise, and does not create the relation of vendor and vendee between plaintiff and Talhnan and is not affected by the provisions of the statute relating to conditional sales, and is not required to be filed or recorded.

<p>Appeal from Jackson Circuit Court. — Ron. Jas. R. Slover, Judge.</p>

— Hoto. W. K. * Amick, Judge. (1) It was error to grant the preliminary restraining order upon the reading of the petition. The verification was insufficient. The affiant only swore to his belief, not to the truth of the facts stated. Dine-hart v. Lafayette, 19 Wis.723; Shonk v. Knight, 12 W, Ya. 679,- Bank v. Skinner, 9 Paige 304 ; 2 High on Injunctions, Sec. 1567, 1569; 1 Spelling- on Injunctions, Sec. 29 and 25, note 2, p. 40.

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

— Hon. Wm. D. Hush, Judge. (1) It was error to permit Dr. Gray to testify that the plaintiff stated to him that she' had been injured. ' Gibler v. Railroad, 129 Mo. App. 93; Holloway v. Kansas City, 184 Mó. 19; Dunlap v. Railroad, 145 Mo. App. 215; Brády v. Traction Co., 140 Mr. App. 421. (2)' The testimony of Mrs. Churchill and Mrs. Metz that the plaintiff afterwards complained to them of' her injuries should not have been admitted.

— Son. W. O. Thomas, Judge. (1) The demurrer to the plaintiff’s evidence should have been sustained because there was no evidence upon which a jury was entitled to pass., (2) The instruction.

<p>1. ATTACHMENTS: Voluntarily Dismissed: Damages. Where an attachment is sued out on certain property and the attachment proceedings thereafter voluntarily dismissed, but not before the defendant has incurred expense and loss in preparing to contest the ground of attachment, the latter may recover damages in an action in the nature of an action on the case, if it be shown that no ground for attachment existed.</p> <p>.2. ATTACHMENTS: Probable Cause. The statute (Sec. 2294, R. S. 1909), allows an attachment to be issued only where certain facts exist and where no such facts exist, the procurement of a writ of attachment is wrongful regardless of whether or not there was probable cause for suing out the writ.</p>

— Son. W. K. Amich, Judge.' (1) Defendant’s demurrer should have been'sustained for the following reasons: (a) That portion of the street where plaintiff was injured the city had never opened up or improved for use by the public. Curran v. St. Joseph, 143 Mo. App. 618; Downend v. Kansas City, 156 Mo. 60; Ely v. St. Louis, 181 Mo. 723.

— Hon. John M. Williams, Judge. (1) The court erred in overruling appellant’s motion in arrest of judgment. The petition does not state facts sufficient to constitute a cause of action. It shows upon its face that the respondent was in default and not the appellant. Webb v. Steiner, 113 Mo. App. 482; Crews v. Carnean, 14 Mo. App. 505; Davis v. Real Estate Co., 115 Mo. App. 327; Bishop on Contracts, Secs. 834, 1418; Felix v. Bevington, 52 Mo.

<p>Appeal from Jackson Circuit Court — Ho».' Tho's. J. 'Seéhbrn, Judge.</p>

— Now. Fred _ Lamb, Judge. (1) Parol evidence was inadmissible to show what was intended to be included in the policy, or to add to, contradict, or vary its terms. The suit is upon tbe policy of insurance, and plaintiff — in this form of action — is concluded by the writing.

— Hon. W. K. Amick, Judge. The law is well settled in this State by a long line of decisions that to enable a real estate broker to recover his commission he must be the efficient and procuring cause of the sale; it is not sufficient that the acts of the broker were a part of a chain of causes which resulted in the sale, but in order to entitle the broker to recover for his services, his act or acts must have been the direct inducing or procuring cause, and the burden is…

— IIon. John M. Williams, Judge. The plaintiff offered no evidence to establish proof of the defendant’s negligence. Mere proof of delay was not sufficient proof of negligence; therefore defendant’s instructions in the nature of a demurrer to the evidence should have been sustained. Whitting Railroad, 101 Mo. 640; Otis v. Railroad, 112 Mo. 633; Anderson v. Railroad, 93 Mo. App. 679; Standard Mill Co. v. Transit Co., 122 Mo. 258; McCrary v. Railroad, 109 Mo.

<p>Error to Jackson Circuit Court. — Hon. Herman Brumback, Judge.</p>

<p>1. INSURANCE ACCIDENT: Misrepresentation: Jury. Plaintiff seeks to recover $200.00 on a policy of accident insurance for $1000.00. Plaintiff had settled with the defendant for $800.00, and signed a release fully discharging the defendant from all further liability. Plaintiff now contends that she was induced by the defendant to sign the release by false and fraudulent representations namely, that the policy was void because her husband had changed his occupation. Held, plaintiff could recover the $200.00 and interest, as the question of misrepresentation was properly submitted to the jury.</p> <p>2. --: Fixed Sum: Consideration. Where the amount of the benefit in a policy of insurance is for a fixed sum, a settlement and receipt for a less sum is without consideration.</p> <p>3. -: Consideration: Liquidated Amount. Where an unqualified tender of part of a liquidated amount is accepted it will not prevent an action for the balance as the acceptance . was without consideration.</p> <p>4. -: Compromise Agreements: Doubtful Rights. Compromise agreements are upheld when the parties fairly suppose that their rights are doubtful.</p> <p>5. -: False Representations: Ignorance of His Rights. The maxim of the law that “fraud vitiates all contracts” applies where a settlement- is procured by false representations, if the party relying upon such representations, agrees to the proposed compromise in ignorance of his rights.</p> <p>6. TENDER: Misrepresentation: Settlement. Party need not tender back the sum received when suing on a fraudulent contract, because such a sum being received under the mis- • representation, is not a sufficient consideration to support the settlement, since the beneficiary gained nothing thereby, nor did the insurer lose anything.</p>

<p>1. JUDGMENTS: Practice, Trial: Motion to Vacate. Where a motion to set aside a judgment was filed during the term in which it was rendered for the purpose of calling the court’s attention to the fact that a premature judgment had been rendered before the cause had come to an issue, the court had full and complete authority to set. it aside.</p> <p>2. -: Proceedings: Power of Court. Until the end of the term all the proceedings of a court are within the breast of that court and its powers over them are plenary.</p> <p>3. -: General Jurisdiction: Common Law. A court of general jurisdiction proceeding according to the course of the common law, has unlimited power during the. whole term over •its judgments rendered at such term.</p>

<p>1. FRAUD AND DECEIT: Exchange of Properties': Latent Defects. An action for damages for false representations in the sale of goods cannot he grounded on representations as to facts coming within the rule of caveat emptor, which requires a buyer to exercise reasonable care to discover defects, but latent defects, which are not discoverable by a reasonable examination, do not come within the rule, since the parties do not stand on equal ground as to such defects.</p> <p>2. -: Pleading. To state a cause of action for deceit, it is essential to aver that the representations made by defendants , were false and known by tliem to be false, and that they were made with the intention of deceiving plaintiff and that plaintiff was deceived thereby, and that relying upon them, he was induced to act to his injury.</p> <p>3. -: Instructions: Measure of Damages. If the plaintiff’s instruction on the measure of damages is general and in no wise particularizes the elements of damages, it devolves upon the defendant to ask an instruction limiting what might possibly be its effect upon the jury.</p>

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

<p>1. NEGLIGENCE: Alighting from Street Car. Plaintiff was riding on an eastbound street oar on Nineteenth street, and after the car crossed Brooklyn Avenue, she signaled for it to stop at Park Avenue, hut it proceeded without slackening speed, and as it started past Park Avenue, she again signaled for it to stop, arose from her seat and started to walk to the rear platform in order to alight when it did stop. The motorman met her on the way, and she told, him that she wanted to 'get off. He said “All right.” She continued on her way and the car stopped midway between Park and Olive streets, and as she was in the act of preparing to step down, the conductor rang the bell, the car started ahead with a jerk and she was thrown to pavement and severely injured. Held, plaintiff rightfully recovered for internal injuries caused by the defendant’s negli- ' gence.</p> <p>2. --: Stopping of Cars on Signal: Middle of Block. If a car stops at a passenger’s signal and request, the passenger is justified in acting upon the supposition that she is- at liberty to alight when the car did stop, notwithstanding it was in the middle of the block.</p> <p>3. INSTRUCTIONS: Misleading: Ambiguous. An instruction is not ambiguous, confusing, and misleading, which calls the attention of the jury to what particular facts they must find in order to find for the plaintiff.</p> <p>4. -: Holding Cars: Passenger Alighting. An instruction is proper which states: “It is the duty of the Street Railway Company to hold the car stationary, if its employees know that a passenger is in the act of alighting therefrom, if they could have done so by the act of exercise of such a degree of care as would be exercised by careful and' skillful men under the same circumstances.”</p> <p>5. -: Concurrent Negligent Acts. An instruction in which it is stated, that if the jury believes from the evidence, that plaintiff and defendant’s servants were guilty of concurrent negligent acts or conduct, which directly contributed to plaintiff’s injury, the plaintiff cannot recover, is objectionable because it leaves the jury to determine what are the concurrent negligent acts.</p> <p>6. EVIDENCE: Reasonableness: For Jury. Reasonableness of plaintiff’s injuries, is not a question for argument, but it is a question to be determined solely by the jury on the credibility or reasonableness of plaintiff’s evidence.</p> <p>7. NEW TRIAL: Cumulative Evidence. The defendants’ ground for a new trial was based on the fact that they had a new witness who would testify that the car did not stop at the alleged place. As defendant had introduced many witnesses at the trial who testified to the same facts, the discovery of such evidence is merely cumulative and does not justify the granting of a new trial.</p>

— Son. Nat. M. Shelton, Judge. (1) After respondent admits that relator was elected to the office of city attorney, received his certificate of election, took the oath of office, and entered upon the duties of the office, and at all times since has performed the duties of the office, the title of relator to said office cannot be challenged and respondent will not be heard to say that relator is not now and never has been qualified as city attorney. State ex rel.

<p>1. BREACH OF THE PEACE: Sufficiency of Complaint: Justices’ Courts. In an action to require defendant to enter into a recognizance to keep the peace, the complaint was in writing and upon the oath of complainant, and charged that defendant threatened to beat complainant and her son and accompanied the threats with vile epithets; that, after making such threats, defendant reentered her own premises and, after providing herself with a long iron holt, returned to the street, where she flourished and brandished the same in an angry manner, and directed curses and threats of bodily violence at complainant, to her great fear and terror; and that complainant was fearful that defendant would execute said threats or do her some great bodily harm, unless restrained by law. Held, that the complaint was sufficient, under Secs. 4955, 4956, R. S. 1909, providing that any person who has threatened or is about to commit any offense against the person or property of another may be compelled to enter into a recognizance to keep the peace.</p> <p>2. MANDAMUS: Justices’ Courts: Breach of the Peace: Compelling Reinstatement of Case. Sections 4955, 4956, R. S. 1909, provide that, whenever complaint shall be made in writing upon oath to any magistrate that a person .named has threatened or is about to commit a specified offense against the person or property of another, the magistrate shall issue a warrant, and cause the matters to be inquired into by a jiiry, and shall require the defendant to enter into a recognizance to keep the peace, if the jury find that there is good reason to fear the commission of the offense charged. Held, that such duties are precise and certain, and leave nothing to discretion, so that mandamus is the proper remedy to compel a justice of the peace to proceed with the trial of a proceeding to require a defendant to give a recognizance to keep the peace, where, after the jury had been sworn, the justice erroneously dismissed the case on ■ the ground the complaint was insufficient in law.</p> <p>3. JUSTICES’ COURTS: Powers: Breach of the Peace: Mandamus. Where a written complaint on oath, under Secs. 4955,. 4956, R. S. 1909, which provides for recognizances to keep the peace, expressly stating all that the statute requires, was presented to a justice, he was not exercising judicial power or discretion in dismissing the' complaint for insufficiency after a jury was impaneled, since he has only such powers as are given by statute, and no such power is given him by statute.</p> <p>4. MANDAMUS: Justices’ Courts: Breach of the Peace: Compelling Reinstatement of Case: Adequacy of Other Remedies. The right to appeal being given only to the person required to give a recognizance to keep the peace, and the duties of the justice as to such recognizances not being of such a judicial nature as to authorize review upon certiorari, neither appeal nor certiorari would be an adequate remedy to compel a justice of the peace to proceed with a trial, under Secs. 4955, 4956, R. S. 1909, where he had erroneously dismissed the proceeding on the ground the complSint was insufficient, and hence mandamus is the proper remedy to compel him to proceed-with the trial.</p>

— Hon. Henry G. Riley, Judge. (1) Interstate freight rates are establishéd when a schedule thereof is filed by a carrier with the Interstate Commerce Commission, and copies are furnished by the railway company to its freight offices, although such rates may not be “posted” as required by Sec. 6 of the Act to Regulate Commerce. Such rates, when regularly established, are no longer the rates imposed by the carrier, but the rates imposed by the law.

Louis County Circuit Court. — Hon. G. A. Wurdeman, Judge. (1) The trial court erred in admitting in evidence over the defendants’ objection the notes of $1100 and $44, because they were not the notes described in the petition. It amounted to a failure of proof and not a mere variance. Marcum v. Smith, 26 Mo. App. 460; Halpin M. Co. v. School Dist., 54 Mo. App. 371; Gray v. Race, 51 Mo. App. 553; Ringer-v. Holtzclaw, 112 Mo. 519.

Louis City Circuit Court.- — Hon. Eugene McQuillin, Judge. (1) The circuit court of the city of St. Louis had no jurisdiction to issue the writ of quo warranto because no information was filed therein in accordance with the terms and provisions of See. 3444 R. S. of the State of Missouri. (2) The circuit attorney of the city of St. Louis could not proceed at his own relation against the plaintiff in error, Modern Horseshoe Club.

— Hon. James ID. Barnett, Judge. (1) The court erred in refusing to direct a verdict for the defendant at the close of the evidence for the plaintiff, and at the close of all the evidence, (a) The plaintiff’s contributory negligence, he being the beneficiary under the statute attempting to recover damages, bars a recovery. Cogan v. Eailroad, 101 Mo. App. 179. This is the theory on which the case was tried.

<p>Appeal from New Madrid Circuit Court. — Hon. Henry G. Riley, Judge.</p> <p>■ ' As the New Madrid Cooperage Company was not a corporation at the time the contract was made with the plaintiffs for the purchase of the logs, the defendant is liable even though he geted as the agent of the Néw Madrid Cooperage Company in buying said logs. Furniture Co. v. Crawford, 127 Mo. 365; Lapsley v. McKinstry, 38 Mo. 245; Heath v. Goslin, 80' Mo. 317.</p>

Louis City Circuit Court. — Hon. Edwin W. Lee, Judge. The evidence conclusively shows that the plaintiff is not an innocent and injured party. To entitle him to a divorce he must show this, must come into court with clean hands. Miles v. Miles, 137 Mo. App. 30; Libbe v. Libbe, 157 Mo. App. 707; Reed v. Reed, 30 Mo. App. 473.

<p>DIVORCE: Jurisdiction: Residence of Plaintiff. Under Secs. 2371, 2373, R. S. 1909, providing that an action for divorce shall be had in the county where plaintiff resides, and declaring that no person shall be entitled to a divorce who has not resided within the state for a year next before the filing of the petition, unless the offense complained of was committed within the state, the court has no jurisdiction of a suit for divorce by a nonresident husband for his wife’s adultery committed in the state and while she was residing in the state.</p>

—Hon. R. G. Ranney, Judge. (1) The return shows on its face that the service is void, because had on an agent of defendant corporation, without the absence of the president or other chief officer from the comity. Secs. 1766 and 1767, R S. 1909; Rixke v. Telegraph Co., 96 Mo. App. 40'6; Land & Mining Co. v. Current River, etc., Co., 187 Mo. 432; 'Stanley v. Transit Co., 136 Mo. App. 388; Bente v. Typewriter Co., 116 Mo. App. 77.

Louis City Circuit Court. — How. Moses N. Sale, Judge. (1) The court should not give instructions which assume the truth of controverted facts in issue. Me- (1) Neither the .giving of the instruction nor the refusal to give it in its original form affords ground for a new trial, (a) The instruction, as given, does not assume the truth of any controverted fact material to the issues, (b) There is no error in a refusal to charge on an immaterial issue.

— Hon. David H. Eby, Judge. (1) Defendants contend that tbe petition of plaintiff does not state a cause of action in this, tbat it fails to state tbe year for which the taxes were levied and assessed and for that reason the court had no jurisdiction to render the judgment rendered in the case. „ Lumber Co. v. Keener, 217 Mo. 522.

<p>Appeal from Hannibal Court of Common Pleas. — Hon. David H. Eby, Judge.</p>

<p>Appeal from Hannibal Court of Common Pleas. — Ron. David R. Eby, Judge.</p>

St. Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) This was a sale by sample, and there was an implied warranty that tbe goods sold would be of quality equal to the sample. Yoss v. Maguire, 18 Mo. App. 477; Fruit Co. v. Lane, 101 Mo. App. 712; Schoenberg v. Loker, 88 Mo. App. 387.

— Hon. James D. Barnett, Judge. (1 ) The vice of instruction No. 1 is that it leaves to the jury to determine a question of law as to what constituted “the exact terms fixed by defendant and unless plaintiff has shown these facts by the greater' weight of the evidence your finding will he for defendant.” Dalton v. Redemeyer, 154 Mo. App. 190; Good-son v. Embleton, 106 Mo. App. 77; Nulton v. Croskey, 111 Mo. App. 18; Nichols v. Whiteacre, 112 Mo. App. 692.

Louis City Circuit Court. — Hon. William, B. Homer, Judge. (1) Appellants’ abstract of tbe record is fatally defective for the following, among other reasons: (a) It contains nothing but the bill of exceptions, (b) It does not contain the pleadings or even the substance of such pleadings, (c) It fails to show (except as contained in the bill of exceptions) that a final judgment was rendered in said cause, that a motion to set aside the judgment of nonsuit was filed, the…

<p>Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.</p> <p>Charles H. Franck was not a proper or necessary party, either plaintiff or defendant. R. S. 1909, secs. 1729, 1731, 1732, 1733; State ex rel. v. Bradley, 193 Mo. 33; Graham v. Ringo, 67 Mo. 324; Hazeltine v, Messmore, 184 Mo. 314; 15 Ency. PI. & Pr. 735.</p> <p>The declaration of law was properly given. Under the contract sued upon, appellant and Franck are joint obligees, and both are necessary parties plaintiff. Wells v. Gaty, 9 Mo. 565; Clark v. .Cable, 21 Mo. 223; Rainey v. Smizer, 28 Mo. 310; Dewey y. Carey, 60 Mo. 224; Henry v. Mt. Pleasant, 70 Mo. 500; Ryan v. Riddle, 78 Mo. 521; Slaughter v. Davenport, 151 Mo. 26.; Thieman v. Goodnight, 17 Mo. App. 429; McLaran v. Wilhelm, 50 Mo. App. 658; White v. Dyer, 81 Mo. App. 643; Culver v. Smith, 82 Mo. App. 390; Daugherty v. Beiges, 118 Mo. App. 557; Butler v. Boynton, 117 Mo. App. 462; Ellis v. Railroad, 130 Mo. App. 221; Walker v. Lewis, 140 Mo. App. 31; Reifschneider v. Beck, 148 Mo. App. 737; O ’Rourke v. Kelley, 156 Mo. App. 95; Annable v. Land Co., 144 Mo. App. .313.</p>

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) The main point-is whether the stipulation in the contract for a forfeiture in case of a breach shall be construed as liquidated damages or as a penalty.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The trial court erroneously held that there was a “complete failure of proof.” Appellants made a prima facie case of liability on the part of respondent, which, unless rebutted by evidence, became con-elusive. A shipper makes out a prima facie case by - proof of delivery to the carrier in good condition and the carrier’s failure to deliver in like condition. Elam v. Railroad, 117 Mo.