Volume 168 — Missouri Appeal Reports

Louis County Circuit Court. — Hon, G. A. Wurdemon, Judge. (1) One partner cannot sne another in an action at law until a settlement has been made between them of the partnership affairs, even on a special agreement to pay salary. Richardson v. Bank, 4 My. & Cr. 165; Gaskell v. Spence, 83 Mo. App. 380. (2) The testimony of the witness Hempleman should not have been admitted,’ and on defendant’s motions should have been stricken from the record.

— Hon. Henry G. Riley, Judge.. (1) The affidavit showing appellant’s inability to get bill of exceptions signed and that exceptions were made to action of the court in overruling motion for new trial is sufficient to warrant the court in trying the whole case. State v. Feely, 194 Mo. 315.

— Hon. Henry C. Riley, Judge. (1) The court should have sustained defendant’s demurrer to plain tiff’s petition, as the petition does not state the character of the defect in the sidewalk, does not state that the sidewalk was dangerous, or unsafe, nor does it state that the injury complained of was caused by the defective sidewalk. Plummer v. City of Milan, 70 Mo. App. 598 ; Young v. Kansas City, 45 Mo.

Louis City Circuit Court. — Hon. Geo. H. Shields, Judge. .(1) The jury correctly found all of the issues joined by the pleadings in favor of the plaintiff: and the damages assessed on each cause of action, irrespective of counts, was less than the amount claimed in the petition, and shown by the evidence; if,, therefore, the judgment entered by the trial court for the aggregate damages assessed by the jury was not proper (which we deny) the trial court should have entered a…

<p>Original Proceeding by. Certiorari.</p>

Louis City Circuit Court. — Row. • Daniel G. Taylor, Judge. ; (1) A foreign corporation, doing business in Missouri and not having complied with our statute, cannot maintain any suit or action in any of the courts of this State. R. ,S. 1909, secs. 3037, 3038, 3039 and 3040; Shoe Machinery Co. v. Ramlose, 210 Mo. 631; Zinc & Lead Co. v. Mining Co., 221 Mo. 7.

— Hon. R. 8. Ryors, Judge. (1) Where the character of a party is not in issue, and no attempt to impeach him has been made, admission of evidence of his good character is reversible ■error. Dudley v. McCluer, 65 Mo. 241; Black v. Eppstein, 221 Mo. 286. (2) The action of the trial court in giving to the jury the instruction No. 3 at the instance of respondent, is reversible error.

— Son. J. L. Fort, Judge. . . ' (1) The failure to perform a.contract is a-legal wrong, and for the violation of this right', independent of actual damages to the party'for whose benefit’the performance of the’contract is due, nominal damages will he allowed. Fulkerson v. Eades,’ 19' Mo. App. -6201; Dulaney v. Sugar Defining' Co., 42 Mo. App, 659;;'lWbl foer v. Esquire, 51 Mo. App. 601; Fidelity. DepbsitbCbi v. Colvin, 83 Mo.

Louis City Circuit Court, — Now. Charles Claflin Allen, Judge. (1) Tire testimony tending to prove that the uterine trouble of the plaintiff is permanent was clearly incompetent. The petition contains no allegation of such injury or that the same is or will be permanent. This was not an issue in the case. Hartt v. McNeill, 47 Mo. 526. (2) The instructions directing a verdict in favor of the defendant asked by defendant should have been given.

— Hon. W. T. Ragland, Judge. (1) The review of a suit for divorce on appeal is governed by tbe rules applicable to equity cases and extend to tbe law and tbe facts. Scbuman v. Scliuman, 93 Mo. App. 99. (2) Tbe decree in favor of defendant granting a divorce to ber ought not and cannot stand because ber refusal when requested to live with appellant constitutes consent on her part for appellant to live apart from her, and she cannot be heard to say he deserted her.

— Hon. James D. Barnett, Judge. (1) The only issues of fact that can be raised or tried are whether the husband without good cause has abandoned his wife and neglected or refused to support her. Sharpe v. Sharpe, 134 Mo. App. 278; Youngs v. Youngs, 78 Mo. App. 225; McUrady v. McGrady, 48 Mo. App. 668. The time at which the above facts should appear is of the date of the institution of the suit. Polster v. Polster, 145 Mo. App. 606; State v. Weise, 156 Mo. App. 135.

Genevieve Circuit Court. — Son. Peter Suck, Judge. A new trial should have been granted interpleader herein by the court on the ground that perjury or mistake had been committed by witnesses of plaintiff in regard to when the hoops were marked. The affidavits filed with the motion for new trial show conclusively that their testimony was in error in this important respect. Interpleader was over 120 miles away from home and from where the witness who made affidavits live.

Louis City Circuit Court. — Hon. ■ George H. Shields, Judge. (1) Plaintiff’s bill herein does not state facts sufficient to constitute a cause of action against defendant Bowman, (a) One wbo leaves Ms property in tbe possession of another and knowingly allows that other to hold himself out to the world as the owner, will be estopped as against creditors of such other person from claiming the property as his own.

<p>'Appeal from Washington Circuit Court. — Eon. Joseph J. Williams, Judge.</p>

<p>Appeal from Washington Circuit Court. — Eon. Joseph J. Williams, Judge.</p>

— lion. Henry C. Riley, Judge. (1) The court should have sustained defendant’s motion to dismiss for want of jurisdiction, in that plaintiff wrongfully attached the mules in the justice’s court. Rosencranz v. Dry Goods Co., 175 Mo. 518.

<p>1. MECHANIC’S LIENS: Liberal Construction: Name of Owner. The mechanic’s pien Daw should be liberally construed and an • honest mistake, in the name oí the owner of the building, not allowed to defeat the lien of the mechanic, when no rights of third persons have intervened.</p> <p>2. -: Notice: Name of Corporation. When the property was correctly described but the notice was not addressed to the full name of the, corporation, but served in the office of the corporation upon one of its officers, the notice was not invalidated thereby.</p> <p>3. -: Material Furnished: Inseparably Blended. When the material furnished is inseparably blended in an account from which it cannot be distinguished, as to what is lienable, the entire lien is lost.</p> <p>•4. -: Mistake in Notice: Subcontractor. A mistake in the notice of a lien claim, given by a subcontractor to the owner, will not vitiate the notice unless it appears that the owner was misled thereby to his prejudice.</p>

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

<p>Appeal from Daviess Circuit Court. — Hon. A. B. Davis, Judge.</p>

<p>1. CARRIERS OF GOODS: Delayed Shipment: Jury Question. In an action prosecuted by a shipper of perishable property • to recover damages resulting from negligent delay in' the transportation of the shipment, the defendant contended that a severe storm caused the delay in the yards of a connecting railroad, and hence there was no negligence on its part. Eeld, that the demurrer to the evidence was properly overruled, and the question of negligent delay was rightfully submitted to the jury.</p> <p>2. -: Unusual Delay: Accidental Causes. Proof of am unusual delay is not proof of negligence since such delays, often result from accidental or unusual causes which reasonable care would not anticipate.</p> <p>3. '--: -: Question for the Jury. The fact of unusual delay with slight evidence of neglect will suffice to take to the jury the issue of whether 'the delay was negligent or excusable.</p> <p>4. -: Acceptance of Freight: Notice of Delay. The acceptance of a shipment of freight by a carrier without notice to the shipper that there may be delays, is equivalent to an .assurance that it will be delivered in a reasonable time, except for the intervention of excusing causes of subsequent occurrence.</p> <p>5. -: Instructions: Definitions. When the defendant objects to an instruction of the plaintiff’s concerning a definition of its negligence, it should be taken advantage of, by its own instruction.</p>

<p>Appeal from Jackson Circuit Court. — Hon. W. O. Thomas, Judge.</p>

<p>Appeal from Cole Circuit Court . — Hon. Jolvn M. Williams, Judge.</p>

<p>1. INJUNCTIONS: Surface Water: Demurrer. Plaintiff sued the defendants for unlawfully and maliciously collecting surface water from their lands and precipitating it in a body on the land of the plaintiff and to enjoin them from doing so in the future. A permanent injunction was granted and damages awarded. Held, that the demurrer to the evidence was properly overruled and a proper judgment rendered.</p> <p>2. -: -: Dominant and Servient Proprietors. Surface water is a common enemy against which every landowner must protect himself and a servient proprietor has no right to require protection at the hand of the dominant proprietor, hut the dominant proprietor has no right to collect the excess surface water and cast it in a body on the servient land.</p>

<p>1. EQUITY: Trust Funds: Husband ' and Wife: Incumbrances. This is an action in equity brought by the plaintiff to establish a resulting trust in land belonging to her husband at the time of his death. The plaintiff, at the time of her marriage, was; a widow with three children, the husband was a widower with four children. The husband took $500 of plaintiff’s money to pay for a new house, and $400 to pay off the incumbrances on the farm. The trial court found each of these advancements created a trust by operation of law. It is held that the court erred in declaring a trust for the $500 used to pay for the house, but a trust was properly declared for the $400 with which the husband paid off the incumbrances on the land.</p> <p>%. WITNESSES: Evidence: Contracts. In actions where one of the original parties is dead, the other party to such a contract or cp.use of action shall not be admitted to testify either in his own favor or in favor of any party claiming under him. Sec. 6354, R. S. 1909.</p> <p>3. EQUITY: Trust Fund: Resulting Trust. When the husband without the consent of his wife in writing appropriates her separate estate and uses it for the betterment of his own land, he commits a wrong against his wife, for which the law affords her redress and treats him as a trustee ex maleficio. She can follow that money and have it charged, in equity, as a lien upon the land. Thus she becomes the beneficiary of an implied or resulting trust by operation of law, and not by contract.</p> <p>4. " STATUTE OF LIMITATIONS: Married Woman. Under Sec. 1879, R. S. 1909, the twenty-four year Statute of Limitations begins to run as soon as the cause of action becomes complete whether the party is covert or discovert.</p> <p>5. -: Trusts: Expressed and Resulting. As to an expressed trust the Statute of Limitations does not begin to run until the trust is denied, but as to trusts arising by operation of law the statute begins to run from the date of the discovery by the cestui que trust of the facts constituting the trust.</p>

<p>BENEFIT CERTIFICATE: Disease: Evidence: Peremptory Instruction. Though a trial court may, in proper instances, direct a verdict for the defendant, yet where the evidence sustaining the defense is of an uncertain or indefinite character, such as to the time when treatment was given for a disease, or as to the kind of disease, the court would he without right to so instruct and properly refused to do so.</p>

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

<p>1. APPEAL: Absence of Motion. Appeal may be taken without motion for new trial or in arrest. In such case the appellate court will examine the record proper but will consider only errors fatal to the action or to the judgment. Mere formal defects, though patent of record, will not be considered.</p> <p>2. JUDGMENTS: Verdict. Judgment is not rendered until the verdict is received and recorded, and the judgment is based on the verdict as recorded. Hence judgment must follow recorded verdict and if that be ambiguous, the judgment cannot stand.</p> <p>3. VERDICTS: Reception of. The only safe way to correct ambiguity in a verdict is for the trial court to have it done before the verdict is received, much safer than to receive it with an ambiguity and then attempt by construction to arrive at the intention of the jury after it has been discharged.</p>

<p>1. BROKERS: Commission: Right to. To solve the problem of a broker’s right to commission, two things must be kept in mind: 1st. What was the broker employed to do? 2d. Has he completed his undertaking? If he was employed to do a certain u thing and has accomplished that thing within the time required, or, where no time is specified, within a reasonable time, then he is entitled to his commission.</p> <p>2. -: -: Changed Conditions. Where a broker is employed to sell either the whole or certain specified parts only of a farm, and in the effort to sell one of those parts, introduces a prospective buyer to the owner but no sale is effected, and nothing more is done for eight or ten months, when the .owner, through no help or assistance of the broker sells a portion of the farm to another buyer, which sale so changed the farm as to make possible the sale of a different portion of the remainder from any that could have been sold prior thereto, the fact that the former prospective buyer, through no help or assistance of the agent, learns of the changed conditions and renews negotiations which result in a sale to such buyer of a different part from that shown to him in the first place, does not entitle the agent to commission, in the absence of bad faith on the part of the owner.</p> <p>3. -: -: Disclosure of Purchaser. Wherever an introduction, or advertisement, or disclosure of purchaser is relied on to entitle the broker to commission, the evidence must show that such was the foundation of the negotiations which resulted in a sale although conducted and concluded by the owner. When the evidence shows that the introduction was only a link in a chain of causes and not the causa causans, the broker cannot recover.</p> <p>4. -: -: Variation in Both" Price and Thing Sold. Where the sale made varies from the broker’s contract, both in price and in the thing sold, there can be no recovery of commission.</p>

<p>1. REFEREE'S REPO.RT: Exception to: Must be Filed Within Four Days After the Return of the Report. The motion to set aside the referee’s report in this case, while so worded as to he different in form, was in reality a series of exceptions to the report, and having been filed long out of time was properly overruled.</p> <p>2. APPELLATE PRACTICE. Equity Case: Entire Evidence. In the absence of some of the evidence in an equity case, the appellate court will not pass on the question whether, upon the evidence, the court erred in modifying the referee’s report.</p> <p>3. REFEREE’S REPORT: Right to Modify. The right of a court of equity to modify a referee’s report, especially when the court has before it all the evidence upon which the referee’s report is based, is too well settled to require discussion.</p> <p>4. JUDGMENT: Satisfaction: Interest. Appellant had two judgments but was entitled to but one satisfaction, the judgments being for the same services. Held, that when appellant received satisfaction of one judgment in full with interest, the full amount received, including the interest, was properly credited on the other judgment, as of the date it was collected. Such credit should not be for the face of the judgment merely, since appellant would be no more entitled to receive interest twice for the same time than he would to collect the principal twice.</p>

<p>Appeal from Bates Circuit Court. — Hon. Charles A. Calvird, Judge.</p>

<p>Appeal from Saline Circuit Court. — Eon. Samuel Davis, Judge.</p>

<p>Appeal from Pettis Circuit Court. — Hon. H. B. Sham, Judge.</p>

<p>Appeal from Boone Circuit Court. — Eon. D. E. Earris, Judge.</p>

<p>1. CRIMES AND PUNISHMENTS: Justices of Peace: Intoxication. The defendant, a justice of peace, was tried and convicted under Sec. 10203, R. S. 1909, which provides a punishment for a public officer, who becomes so intoxicated that he is incapacitated to perform any official act at the time and in the manner required of him in the discharge of the duties of his office. It is held the evidence shows beyond question that the defendant was not so disabled at the time charged and the trial judge erred in not peremptorily instructing the jury to return a verdict for the defendant.</p> <p>2. -:--: -: -. It is not a crime for an officer to use intoxicating liquors, but it is a crime for him to be in toxicated, while in the performance of any official duty, or to be incapacitated by intoxication for the discharge of any official duty at a time, and in a manner, required of him by law.</p> <p>3. -: -: -: Incapacitated. ,The term “incapacitated,” as used in the statute, means the inability on account of intoxication, properly, to perform an official act when it should be performed.</p>

<p>1. GIFT: Intention: Delivery. In order that there may be a valid gift of personal property, in addition to an intention to give, there must be an actual delivery.</p> <p>2. TRUST: Personal Property: Donor: Trustee. A trust in per- ' sonal property may be created verbally, nor is there any legal objection to the donor making himself the trustee.</p> <p>3. -: -: Change of Title: Executory. In order to transfer money from the owner into a condition of trust for another, there must be a p'resent and permanent change of title. It cannot be executory. Mere intention for future consummation is not sufficient. .</p> <p>4. -: -: Deposit in Bank: Possession. Where a'person deposited money in a bank, taking a certificate of deposit payable “to himself or William McKenna,” his nephew, with the statement, frequently made, that it was to be McKenna’s if he, the depositor, died or anything happened to him, he keeping possession thereof until his death; it was held that this did not create a trust in McKenna’s favor, and that the depositor’s administrator was entitled to the money. Cases distinguished.</p>

<p>1. LIFE INSURANCE: Change of Beneficiary: Reservation. The unconditional beneficiary in a policy of life insurance has a vested interest therein which cannot be changed by the insured. but if the right to change the beneficiary is reserved' in the policy, ihe may make the change.</p> <p>2. -: -: Exemption: Statute. Sec. 5854 R. S. 1889, provides that if a person takes out a policy of life insurance payable to a married woman, -it shall inure to the separate benefit and use of such .woman and her children free from the claims of the creditors of the husband or other person taking out the insurance; and that if such woman should die before her husband, the policy should inure to the children free from claims of creditors, “any technical words or phrases in the policy to the contrary notwithstanding.” Held, that such section was a statute of exemption and that it did not prevent the reservation in the policy for a change of beneficiary.</p>

<p>1. HUSBAND AND WÍFE: Agent: Loan: Gift. A wife’s authority to her husband to act as :her agent to loan the money on notes and to collect the loans, is not authority to make a gift of the money or the notes to their daughter.</p> <p>2. GIFT INTER VIVOS AND CAUSA MORTIS: Evidence: Conjecture. While evidence of a gift inter vivos need not be so conclusive as that of a gift omisa mortis, yet it should be sufficiently definite and certain to place the transaction beyond mere conjecture.</p> <p>3. -: -: -: Case not fully developed: Remand. Where a plaintiff fails to make out a satisfactory case but yet it appears probable that the issues have not been fully developed, the court may remand for a new trial instead of reversing outright.</p>

<p>1. DOWER: Timber Land: Waste: Restraint. A widow with a dower interest in lands the value of which consists principally in growing timber, may maintain a bill to restrain one in possession from wilfully committing waste by destroying the timber.</p> <p>2. WIDOW: Ejectment: Appeal: Injunction. A person claiming to own land, brought an action of ejectment against persons claiming title in fee simple. Judgment was rendered in favor of the latter and the former appealed to the Supreme Court, and during the pendency of the appeal in that court he died leaving a widow with a right of dower if he was successful in ¡his appeal. The land was chiefly valuable for its growing timber, and the parties in possession began to commit wilful waste by cutting and selling all of it. It was held that the widow could maintain a bill to restrain the waste until the case was finally decided.</p> <p>3. -: -: -: -: Injunction. Where timber growing on land is its chief value, an injunction may be had to restrain its destruction during the pendency of an appeal in another action involving the title, wherein the party in possession obtained a judgment.</p>

<p>Appeal from Johnson Circuit Court. — Hon. A. A. . . Whitsett, Judge.</p>

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

<p>Appeal from Livingston Circuit Court. — Hon. Arch B. Davis, Judge.</p>

<p>1. CORPORATIONS: Principal and Agent: Contracts. A corporation is not responsible for contracts entered into, before it came into existence, by promoters assuming to bind tbe company in advance; no principal of tbe law of agency being ap- . plieable to a case of this kind, as agency implies the existence of a principal.</p> <p>2. -: Contracts: Promoters. When a corporation becomes a legal entity, the corporation has the option of adopting or repudiating contracts for its benefit made by its promoters, and the exercise of such option may be manifested, as well, by acceptance and retention of the benefits of such contracts, as by' an express agreement.</p> <p>3. -: -: -. Under Sec. 7001, R. S. 1909, a corporation becomes a corporate entity for the purpose of entering into contracts when it receives its eértificate of incorporation; and in accepting the benefits of the contracts of its promoters, it adopted those contracts as its own, and takes them with all their burdens and infirmities.</p> <p>4. -: -: Readjustment Contract: Scope of Authority. When an officer of a corporation is given authority to enter into a new contract in the nature of a readjustment and compromise of the old, the acts of that officer performed within the apparent scope of such authority binds the corporation, though they exceeded the limits of the authority intended to be conferred.</p>

<p>Appeal from Chariton Circuit Court. — Hon. John P. Butter, Judge.</p>

<p>1. NEGLIGENCE: Contributory Negligence: Base Ball Parks. The plaintiff sued to recover for personal injuries received while attending a baseball' game in the defendants’ ball park. He purchased a ticket which entitled him to a seat in the grandstand, protected from foul balls and wild throws by a wire netting; but instead of going there, he voluntarily chose to take a seat which was unprotected. During the progress of the game he was struck by a foul ball and injured. The trial court as a matter of law, declared that he was not entitled to recover. Held, that the plaintiff’s contributory negligence was apparent and indisputable.</p> <p>2. -: Reasonable Care: Safety of Spectators. The defendants were not. insurers of the safety of spectators but, being engaged in the business of providing a public entertainment for profit, they are bound to exercise reasonable care, i. e., care commensurate to the circumstances of the situation to protect their patrons against injury.</p> <p>3. -: Full Knowledge of Dangers. Where one attending a baseball game is offered a choice of two positions, one oí which is less safe than the other, he cannot be said to be in,the exercise of reasonable care if, with- full knowledge of the risks and dangers, he chose the more dangerous place.</p>

<p>I. PHYSICIANS AND SURGEONS: Implied Contracts: Adult Children. The plaintiff sued to recover compensation for surgical services performed on an adult daughter of the defendant. The defendant was the administratrix of her deceased husband’s estate. The plaintiff first visited the home of the defendant to consult with local doctors about the daughter’s condition; later he performed three operations on her. For the first visit and operation he received his compensation from defendant and he now sues to recover for the last two operations on the theory of an implied promise to pay. Held, that such a promise must rest on facts and circumstances that would be incompatible with any other inference than that the parent intended to be regarded by the physician as his employer. Since there are no circumstances in this case indicative of such intention, judgment was properly rendered for defendant.</p> <p>2. -: -: -. The mere request from a father to a physician to attend a child of full age, and for whom he is not bound to provide, and though sick at the father’s house, raises no implied promise upon his part to pay for such medical services.</p> <p>3. -: -: -: Services to be Rendered. A contract should be implied where the circumstances or conditions may be such as to lead the physician to believe, and to charge the father with knowledge that the physician does believe, that the father is undertaking to pay for services to be rendered.</p>

<p>1. FRATERNAL BENEFICIARY ASSOCIATION: Affirmative Defense: Suicide. The plaintiff seeks to recover on a death benefit certificate issued to her husband, who committed suicide. The certificate stated there could be no recovery, if suicide was committed within three years after it was issued. This defense being affirmatively pleaded, the trial court found for plaintiff, on the ground that the defendant failed to plead1 and prove all the elemental facts of a valid defense founded on an exemption peculiar to such an association. Held, that the death of the husband was self-inflicted is a fact established beyond dispute as are also the facts on which the right of defendant to interpose the defense of suicide is, predicated, and plaintiff was therefore not entitled to recover.</p> <p>2. -: Pleading:- Proof of License to do Business, To be entitled to the benefit of the liberal laws and rules of construction pertaining to death benefit certificates issued by fraternal beneficiary associations, it devolves on such associations to plead and prove not only that they possess the essential qualifications of such societies, as prescribed and defined in Sec. 7109, R. S. 1909, but also, when incorporated in another state, that they have been admitted to do business in the State in the manner provided in Sec. 7112, R. S. 1909.</p> <p>3. -: -: -. The certificate of incorporation or that of authority to do business in this State, are not conclusive of the character of the business done, but must be proven by facts tending to show that the association is conducted as one which our laws define to be a benevolent association.</p>

<p>Appeal from Daviess Circuit Court. — Hon. Arch B. Davis, Judge.</p>

<p>1. CHANGE OF VENUE: Criticism in Presence of Jury. It is prejudicial error for a trial court in sustaining a motion for a change of venue to a judge to be called in, to make an address in criticism of the practice, in the bearing of the jury, ” wherein the motive of the applicant is attacked.</p> <p>2. INDICTMENT: Lost Record: Supplied Paper. If the record shows that there was no judgment or order supplying a lost indictment, it is error to allow a paper alleged to be a copy to be treated as a supplied paper.</p>

<p>1. PROBATE COURTS: Demands: Sufficiency of Statement. A demand filed in the probate court against an estate, for legal services covering a period of over four years, stating that claimant’s services consisted of managing the entire estate, loaning money, collecting interest, attending to renting and repairing real estate, buying and selling real estate, examining titles, drawing deeds and wills, making tax returns, appearing before the board of equalization, paying taxes, attending to business away from home at his own expense, giving legal advice whenever needed, and doing generally all necessary to be done in preserving the estate — and stating the reasonable value of such services — is sufficient, under Sec. 2119, R. S. 1909, after trial on the merits, to support a verdict and judgment for such services.</p> <p>2.--: -: -: Trial on Merits: Waiver. An objection to the sufficiency of a demand against an estate, raised by motion to make such demand more definite and certain, is waived by going to trial on the merits.</p>

<p>1. ACCIDENT INSURANCE: Occupation: Supervisor: Labor. It was stated in a policy of insurance that the assured’s occupation was a contractor and that his duties were “traveling and supervising only.” It was held that the term “supervising only” did not mean that he should totally abstain from labor; and that if .he should discover the necessity of doing some temporary labor, and perform it, he would not lose his character as supervisor.</p> <p>2. -: -: Policy: Hazard1: Risk: Manual: Evidence. A policy of accident insurance provided that if the insured suffered injury “while exposed to the hazard of an occupation classed by the company as more hazardous than that” stated in the policy, the liability should not exceed such portion of the principal as the premium paid would purchase at the rates fixed by the company for such more hazardous occupations. These more hazardous occupations and classifications of risks were set out in the company’s manual, but this manual was not mentioned nor referred to in the policy. It was held that its introduction in evidence was properly refused.</p> <p>3. -: -: — : Policy: Reference. In order that provisions in the manual of an insurance company should become a part of the policy, they should be embodied therein or plainly and unmistakably referred to and pointed out.</p> <p>4. MOTION FOR NEW TRIAL: Waiver: Points and Authorities. Objections saved in a motion for a new trial may be abandoned in the appellate court by the appellant, and if they are not mentioned in his brief of points and authorities, will be considered as waived.</p>

<p>TRIAL BY COURT: Instructions: Presumption. Where a cause is tried by the court without a jury and no instructions are asked to indicate the theory of law entertained by the court, it will be presumed to be a correct one, and if there is any substantial evidence tending to support the finding, the judgment will be affirmed.</p>

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

<p>PLEADING: Justices of the Peace: Statement: Sufficiency. The following statement before a justice of the peace was held to be sufficient to invoke the jurisdiction of the justice: “Plaintiff for cause of action states that defendant is indebted to him in the sum of three hundred dollars for moneys advanced and actually paid by plaintiff for and on account of defendant at his instance and reguest, as rent on certain real estate on the southwest corner of Eleventh street and Locust Street in Kansas City, Missouri.</p> <p>"Wherefore, plaintiff prays judgment for three hundred dollars.”</p>

<p>Appeal from Jackson Circuit Court.- — Son. Jos. -A. Guthrie, Judge.</p>

— Now. Henry G. Riley, Judge. The court erred in refusing instruction numbered one offered by the defendant. The gist of a slander case is the intention of the defendant in uttering the words. The very essence of the offense is speaking false and slanderous words impugning the female’s character. Instruction number one given by the court on its own motion, unaccompanied by any explanation of malice and intent falls short of the whole law and is reversible error.

Louis City Circuit Court. — Hon. George H. Williams, Judge. Plaintiff’s instruction number 1 is erroneous for the reason that it does not confine the jury to the acts of negligence alleged in the petition and sought to be established by the evidence. .

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. For synopsis of briefs, see same case, 144 Mo. App. 702. Statement. — The appeal in this case was prosecuted to the Supreme Court, by which it was transferred to this court. Thereafter it was transferred hy this court to the Springfield Court of Appeals, where an opinion was rendered therein. [See Markel v. Peck et al., 144 Mo.

Louis City Circuit Court. — So». Oeorge H. Williams, Judge. (1) A surety’s liability is one strictissimi juris and cannot be extended by implication or presumption beyond the strict terms of the bond. Harris v. Taylor, 150 Mo. App. 291; Reissaus v. Whites, 128 Mo. App. 135; Beers v. Wolf, 116 Mo. 179; Gray v. Davis, 89 Mo. App. 450; Earth v. Allen, 55 Mo. App. 107; Kiessig v. Allspaugh, 13 L. R. A. 418'.

Appeal -from St. Louis City Circuit Court. — Hoto. James E. Withrow, Judge. Held: unanimously we believe, that where the drawee bank receives a check through the clearing house, and enters it upon its journal to the credit of the payee bánk, the check being afterward rejected and returned to the payee, and the entry annulled and the cheek charged back to the payee, within the time prescribed by the clearing house…

Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge. . Where the custody of the child is awarded, in divorce proceedings, to the mother, the child n-evertheless remains the ward of the court.

St. Louis- City Circuit Court.— Eon. George H. Shields, Judge. (1) An instruction so worded that its language may reasonably be interpreted as assuming certain controverted facts to be true is erroneous. Fullerton v. Fordyce, 121 Mo. 13; Linn v. Bridge Co., 78- Mo. App. 111. (2) An. instruction which directs a verdict on the whole case must contain all of the facts essential to the cause of action. Boegeli v. Marble Co., 49 Mo. A]3p. 643; Carder v. Primm, 60 Mo.

<p>1. APPELLATE PRACTICE: Finding by Commissioner of Appeiláte Court: Conclusiveness. The appellate court will defer to the finding of facts of a special commissioner appointed by it, where the evidence is conflicting and the witnesses appeared and testified before the commissioner.</p> <p>2. ATTORNEY'S: Disbarment: Misconduct of Attorney: Commissioners’ Findings Approved. In a proceeding to disbar an ■ attorney, special commissioners appointed by the appellate court found from the evidence that respondent had entered into a conspiracy to effect a pretended sale of a stock of goods so as to defraud the creditors of the pretended vendor, that said . fraudulent scheme was carried out, and that, in litigation arising out of it, respondent gave perjured testimony and suborned one of the conspirators to give perjured testmony; and further found that respondent, either by impersonating a deceased client, or otherwise, unlawfully obtained access to decedent’s safety deposit box, and unlawfully took therefrom certain notes and deeds of trust belonging to decedent and converted them to his own use, with the intent of depriving the true owners of their property, and that respondent falsely pretended that decedent had entered into a written contract with him, whereby said notes and deed of trust were transferred to him, and falsely pretended that such contract was stolen from his desk, whereas in fact no such contract was ever executed. Held, that said findings are supported by the evidence; held, further, that, under said findings, the conclusion of law found by the commissioners, that respondent is not a fit or proper person to practice law in this State, is correct, and hence it is held that his license to practice law in this State should be revoked.</p>

<p>1. APPELLATE PRACTICE: Review: Motion to Affirm Justice’s Judgment: Necessity of Saving Exception. The ruling of a circuit court sustaining a motion to affirm a judgment of a justice of the peace for failure of the appellant to-give notice of the appeal cannot be reviewed by the appellate court, unless the motion and an exception to the ruling thereon are preserved in the bill of exceptions.</p> <p>2. -: -: -: Necessity of Motion for New Trial. The ruling of a circuit court sustaining a motion to affirm a judgment of a justice of the peace for failure of the appellant to give notice of the appeal cannot be reviewed by the appellate court, unless such ruling was brought to the attention of the trial court by a motion for a new trial or rehearing.</p> <p>3. -: -: Matters of Exception: Necessity of Motion for New Trial. Matters of exception are not open to review, on appeal, unless the bill of exception preserves the motion for a new trial, calling the attention of the trial court to such exceptions, and also preserves an exception to the denial of such motion.</p>

Louis City Court. — Hon. William■ M. Kinsey, Judge. (1) (a) The provisions of the statutes, insofar as they relate to the time in which bond shall be given by testamentary guardians, are directory merely and not mandatory. Secs. 408-, 409, R. S. 1909; State ex rel. v. Lafayette Co. Ct., 41 Mo. 554; State ex rel. v. Churchill, 41 Mo. 43; State ex rel. v. Howard Co. Ct., 41 Mo. 252; State ex rel. v. Texas Co. Ct., 44 Mo. 230.

Louis City Circuit Court. — Row. Charles Claflin Allen, Judge. (1) Where the landlord expressly agreed with a tenant at the time of renting the premises that he would make certain repairs, he is liable for injuries to a child of the tenant caused by his failure to make such repairs. Collins v. Fillingham, 129 Mo. App. 340.

St. Louis City Circuit Court. — Eon. Edwin W. Lee, Judge. (1) A plaintiff in a divorce suit in order to secure a decree of divorce, must be shown, from all the evidence introduced in the trial, to he not only the injured but also the innocent party. Lawlor v. Lawlor, 76 Mo. App. 637; Torlotting-v. Torlotting, 82 Mo. App. 192; Webb v. Webb, 44 Mo. App. 229; Coe v. Coe, 98 Mo. App. 472; Nichols v. Nichols, 39 Mo. App. 291.

Louis; City Circuit Court. — Now. Hugo Muench, Judge. (1) The law of the “turntable cases” or, as it is- frequently called, the “attractive nuisance” doctrine cannot, properly, be applied to the facts of this case, to determine the liability of appellant, for the following reasons; (a) The record does not disclose any negligence on the part of the appellant with respect to the maintenance or manipulation of the alleged attractive device.

Original Proceeding by Mandamus. Mandamus will lie to compel an inferior court to hear and determine a writ of habeas corpus, after the. issuance of the writ. Ex parte Malone, 30 Ala. 49; Ex parte Jones, 94 Ala. 34; Ex parte Charleston, 107 Ala. .689; High’s Extraordinary Legal Eemedies,- sec. 266, p. 258.

<p>1. BILLS OF EXCEPTIONS: Refusal to Sign: Untrue Bill. A trial judge is justified in refusing to sign a bill of exceptions which is untrue.</p> <p>2. MANDAMUS: Bills of Exceptions: Refusal to Sign: General and Specific Reasons in Return: Pleading. Where a trial judge, in his return to an alternative writ of mandamus, attempts to justify his refusal to sign a bill of exceptions on the ground it was untrue, and then proceeds to specify wherein it was untrue, the appellate court will disregard the general statement that the bill was untrue, which, standing alone, might have defeated the writ, and will determine whether the- specific reasons set up justify his refusal, and if they are not sufficient, the writ will be made peremptory.</p> <p>3. -:-:-: -: -: Insufficient Grounds for Refusal: Facts Stated. In a proceeding by mandamus to compel a trial judge to sign a bill of exceptions setting out the proceedings with reference to the denial of a motion to set aside a default judgment, the respondent averred in his return that he had refused to sign the bill because it was untrue, and then specifically averred that it failed to set out matters that occurred at the time the default was taken and that it included matters which the court would judicially notice. Held, that the general statement that the bill was untrue would be disregarded, in view of the fact that respondent specifically set out wherein he deemed it to be untrue; held, further, that the 1 specific grounds set out were insufficient to justify respondent’s refusal to sign the bill, since the appeal was prosecuted from the denial of the motion to set'aside the default judgment and not from the judgment itself, and hence things that occurred at the time the judgment was rendered were immaterial and should not be incorporated in the bill, and since, also, matters that occurred before the trial judge, of which he took judicial notice, should be set out in the bill, in order that the appellate court may consider them; and hence it is 7i«7d that the writ of mandamus should be made peremptory.</p> <p>4. BILLS OF EXCEPTIONS: Contents: Default Judgment: Motion to Set Aside. Where, on appeal from a justice’s court, the judgment of the justice is affirmed because of appellant’s failure to prosecute his appeal, and appellant subsequently moves to set aside such judgment and appeals from the denial of this motion, matters that occurred at the time the judgment by default was entered are immaterial to a consideration, on appeal, of the motion to set aside said judgment, and should not be incorporated in the bill of exceptions; and hence the trial judge would not be justified in refusing to sign the bill because such matters were omitted.</p> <p>B. -: -: Judicial Notice. Matters that occurred before the trial judge, of which he took judicial notice, should be incorporated in the bill of exceptions in order that the appellate court may consider them; and hence the trial judge would not be justified in refusing to sign the bill because such matters were incorporated in it.</p>

Lords City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) The Charter lien of a taxbill issued July 1, 1905, for work done under an ordinance enacted in February, 1903, and which could under no possible theory have become a lien prior to' said February, 1903, has no priority over the lien of deeds of trust executed and recorded in 1902 and 1901. Art. 6, Sec. 24.

<p>Appeal from St. Louis City Circuit Court. — Hon. Eugene McQuillin, Judge.</p>

Louis • City Circuit Court. — Row. Eugene McQuillm, Judge. Cause certified to Supreme Court. The two taxbills, Nos. 3655 and 3648, sued on in cases numbers 12561 and 12562, issued against one lot are void. ' Sec. 14, art. 6, Charter of St. Louis. ■ Where the amount assessed against a tract, of ground is correct the taxbills issued thereon are not void because two bills are issued, when the entire assessment on the particular tract might have been included in one bill.

<p>1. LIFE INSURANCE: Benefit Certificate: Soliciting, Agent: Medical Examiner: Waiver. An assessment company of life insurance had a form of application for a life benefit certificate divided into two parts. The first was merely an application for insurance, stating the amount and premium, etc. The second was an examination as to his health, freedom from disease, etc. The first was handled through a soliciting agent and the second through the medical examiner. An applicant informed the soliciting agent that he had the piles, a disease of the rectum, but the agent said it made no difference, and for him to say he had not, when asked that question by the medical examiner. The applicant then signed the soliciting agent’s part of the application, and thereafter was examined by the medical examiner and answered that he did, not have such a disease and warranted his answer to be true, and thereby obtained a benefit certificate. Within six months afterwards he died from an operation for the piles. It was held that there was no liability on the certificate.</p> <p>2. -: Agent: Applicant: Estoppel: Good Faith. If an applicant for insurance who is required to give information as to his health, diseases, etc., informs the proper agent of the company that he has a certain disease, and the agent says it amounts to nothing and refuses to put it down, or writes that the applicant has no disease, — his act binds the company, if the assured acted in good faith.</p> <p>3. -: -: -: Conspiracy. If an applicant for insurance conveys true information of a dis’ease he has, to an insurance company’s proper agent, and then he and the agent conspire together to defraud the company by suppressing such information,-there is no liability.</p> <p>4. LIFE INSURANCE: Agency: Statute: Application: Fraud. Though Sec. 6938, R. S. 1909, makes any person soliciting an application for life insurance, the agent of the company and not of the assured, such statute does not apply to a fraudulent conspiracy between the solicitor and the insured to deceive and defraud the company, but merely to the solicitor’s acts within the limits of his agency.</p>

<p>Appeal from Jolmsoii Circuit Court. — lion. A. A. Whitsett, Judge.</p>

<p>Appeal from Cooper Circuit Court. — Hon. John M. Williams, Judge.</p>

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

<p>1. NEGLIGENCE: Stepping Off a Street Car: Credibility of Witness. The plaintiff sued to recover damages sustained by the negligence of the defendant in operating its street car. The plaintiff and her nephew were riding on the defendant’s street car and, desiring to transfer at the end of the line, the plaintiff was in the act of stepping from the rear vestibule to the first step, when the car suddenly started forward, throwing her to the pavement and injuring her. Held, that the judgment in her favor will not be disturbed.</p> <p>2. -■ — : Perjury or Mistake: New Trial. The statute (Sec. 2022, R. S. 1909) makes it the duty of the trial judge to grant a new trial, when satisfied that perjury or mistake has been committed by a witness and such injury or mistake resulted in an improper verdict.</p>

<p>Error to Daviess Circuit Court . — Hon. Arch B. Dwvis, ' - Judge.</p>

— Mon. E. C. Mall, Special Judge. (1) Even though a broker brings the parties together and starts them to negotiating, but the property the broker was authorized to exchange could not be exchanged and never was made, and a variance both in property and price was made in the deal that was consummated, and the broker had nothing to do with such deal and did not even know it was under consideration, then he neither found the customer nor made the exchange, and is not entitled…

<p>1. CARRIERS OF STOCK: Delay in Shipment: Evidence. A showing of mere delay and nothing more is insufficient to support a recovery of damages for delay in the transmission of live stock. But when the delay is shown under such surroundings as to raise even a slight inference that the delay had its origin in negligence, this is sufficient, especially in the case of an unaccompanied shipment, and the knowledge of what caused the delay is with the carrier and not the shipper.</p> <p>2. -: -: -: Inference of'Negligence. Where, in addition to the delay, it was shown that there were no accidents or trouble of any kind, that the route was clear and open, no washouts, wrecks or breakdowns, that the trains ran when they did run, without a hitch of any kind, this was sufficient to raise an inference of negligence.</p> <p>3. -: -: Actionable Damages. Where the petition does not declare upon a failure to reach a certain market but upon the loss sustained by reason of the difference in flesh and condition of the animals on arrival from that in which they would have been had no delay occurred, the measure of damages is the dfference in the market value of the animals in one condition from their market value ip the other. This is true, as to the loss on account of the condition of the animals, whether they are shipped to market or held for some other purpose.</p> <p>4. -: -: -- — : Question for Jury. In this case whether the animals were diminished in value by the delay and if so, the amount of the loss sustained thereby, are questions for the jury, not for the appellate court.</p>

<p>Appeal from Lafayette Circuit Court. — Hon. Samuel Davis, Judge.</p>

<p>1. EQUITY: Purohase Price: Personal Property. When the purchase price of personal property is unpaid the intention of the parties to the contract of sale will he given controlling effect unless the property he of such nature that necessarily it becomes incorporated into the realty hy the act and manner of annexation.</p> <p>2. -: Conditional Sale: Prior Mortgage. A conditional sale of machinery put into a plant covered hy a prior mortgage, will he enforced in the face of the opposition of the mortgagee where such machinery may he removed without substantial injury to the freehold, or to the security the mortgagee had at the time such addition was made to the plant.</p> <p>3. -: ■ —'—: Impairment of Security. Conditional sales are given full effect as against the interest of prior mortgagees where hy so doing the security of the mortgage is not diminshed.</p> <p>4. CONTRACTS: Sale of Real Estate: Foreclosure. In contracts of sale of real estate hy title bond a decree for the contract price and for foreclosure may he had.</p>

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

— Hon. David E. Blair, Judge. 1. By terms of the written- contract and warranty between plaintiff and defendants-, it is shown that defendants purchased the machine in controversy with a special warranty, containing conditions precedent before any liability should attach to plaintiff on account thereof. Defendants failed to comply with the- conditions of the contract and warranty, and kept and used the. machine after the time therein provided.

— Eon. David E. Blair, Judge. (1) There was no representation or covenant of quantity contained in defendant’s deed to plaintiff, but the defendant deeded the property by lot numbers. Hence no breach of the covenants of seizin, even though the paramount title to the strip in question was in another. Wood v. Murphy, 47 Mo. App. 539; Adkins v. Quest, 79 Mo. App. 36; Martin v. Stone, 79 Mo. App. 309; Ferguson v. Dent, 8 Mo. 667; McCreary v. Douglas, 5 Tex. Civ. App. 539.

— Hon. Joseph D. Perkins, Judge. 1. When a police officer is assigned to special duty in connection with the operation of street cars or pleasure resorts, although he is appointed and assigned at the request of the company, and is paid by the company, where he. acts solely in his capacity asi a police officer and not under the direction of the company, the company is not responsible for wrong’s committed by him.

— Hon. David E. Blair, Judge. 1. The humauitarian doctrine presupposes negligence or contributory negligence on the part of the party invoking the rule and in its essence is that, conceding that plaintiff was guilty of negligence, yet if defendant knew of his peril in time to save his life and limb by ordinary care then it was his duty to exercise such care, and failure to do so rendered him liable. Hall v. Railway Co., 219 Mo. 553; Potter v. Railway Co., 136 Mo.

— So». Carr McNatt, Judge. (1) Where by the contract a person agrees to sell property for a certain sum of money, nothing short of cash payment at the completion of the contract is compliance with the terms. Freight Co. v. Standard, 44 Mo. 71. (2) If payment is to be made in other than money, it mnst be by agreement and pleaded, before evidence of the same be introduced. Moore v. Renick, 95 Mo. App. 202.

— Eon. D. E. Blair, Judge. (1) To he entitled to a commission on the sale of real estate an agent must be the procuring cause of the sale. McCrory v. Kellogg, 106 Mo. App. 597; Van Dyke & Co. v. Walker, 49 Mo. App. 381; Ramsey v. West, 31 Mo. App. 676 ; Sublette v. Lowe, 152 Mo. App. 190; Campbell v. Vanstone, 73 Mo. App. 84. (2) It is not sufficient for an agent to show that his efforts were one of a chain of causes culminating in a sale.

— Hon. D. E. Blair, Judge. (1) The plaintiff was a foreign corporation engaged in doing business in tbis State in violation of the provisions of sections 3038 and 3039, R. S. 1909. Parke Davis & Co. v. Mullett, 149 S. W. 462; Fay Fruit Co. v. McKinney Bros. & Co., 103 Mo. App. 304. (2) Time is of the essence of the contract, and plaintiff failed to show compliance with the stipulations as to the time of shipment. 1 Beach Mod.

— Hon. J. D. Perkins, Judge. 1. The agency created with plaintiffs by defendant was.a special agency and plaintiffs’ employment was limited by the terms thereof to the procurement of a loan from Gentiles. Story on Agency, (9 Ed., secs. 17 to 20, pp. 17 and 18, sec. 126, p. 141.) 2. The defendant had a right to decide for himself how his own business shall be conducted.

— 'Hon. Joseph D. Perkins, Judge. 1. In the original case, the plaintiff did not ask nor did the decree award anything for the maintenance, support and education of the child, and therefore the court was without jurisdiction to make any order touching such matters in this case. Lukowski v. Lukowski, 108 Mo. App. 204; Seely v. Seely, 116. Mo. App. 362; Rev. Stat. 1909, secs. 2381 and 2375. 2.

—B on. A If red Page, Judge. (1) If there was oral evidence tending to show that the amount of the stock of goods was misrepresented by plaintiff to defendant and that defendant acted upon said misrepresentations, he was entitled to have that evidence passed on by a jury and the court erred in taking the case from the jury. Owens v. Rector, 4A Mo. 389; 2 Thompson on Trials (2 Ed.), secs. 1947-1949.

Appeal form Barry Circuit Court. — Hon. Carr Mc-Natt, Judge. 1. Written demand of the officer is a sufficient nó: tice of wife’s selection. State ex rel. v. Wolfe, 81 Mo. 586’; Wife has rights to the exemption under sections 2185 and 8304. 2. Wife may maintain action though she has joined her husband temporarily in another State. Griffith v. Bailey, 79 Mo. 472. 3.

— Hon. David E. Blair, Judge. (1) Parol evidence is not admissible to construe, vary or contradict the terms of a deed. And where the owner of the land annexes a fixture to the freehold, it becomes a part of the realty; and unless the fixture is reserved in the deed, it will pass to his grantee as a part of the realty. Heitkamp v. Granite Co., 59 Mo. App. 251; State Security Bank v. Hoskins, 130 Iowa 339, 106 N. W. 764, 8 L. B. A. (N. S,) 376; Todd v. Monsees, 160 Mo.

— Ho». Carr McNatt, Judge. (1) The contract in this case expressly established, by advance intentional stipulation, a permissible measure of damages for the optional abrogation of its other terms, and should not be construed as a mere penalty to compel performance. United States v. Bethleham Co., 205 U. S. 105, 51 L. Ed. 731 ; Keeble v. Keeble, 5 So. (Ala.) 149; 19 Am. & Eng. Ency. L. 418; Penie v. Weber, 47 111. 41; Ramlose v. Dohman, 100 Mo.

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

<p>Appeal from Livingston Circnit Court. — Hon. Arch. B. Davis, Judg’e.</p>

<p>■1. NEGLIGENCE: Pleading: Defective Sidewalk: Duty of City. In a suit for injuries caused by a defective sidewalk, it is not necessary for the petition to contain an allegation that it was the duty of the city to keep the sidewalk in a reasonably safe condition. Facts must be stated so that from them such duty will "arise as a necessary legal conclusion, and, when that is done, this is sufficient so far as alleging the duty of the city is ■concerned.</p> <p>3. -: Existence of Street: Duty of City. Evidence that the street in question was and had been for years an open public traveled street in the city, that it had been graded some twenty-five years before, that there were houses fronting on both sides of the street at the point in question, that there was a ' sidwalk along the entire east side of the street, that the sidewalk along the west side, where the injury occurred, ran south to the corner, and that “most everybody” in that locality traveled over that sidewalk, is sufficient to show that it was such as the city was bound to keep in reasonable repair. Especially when the city officers testified, and" did not deny the city’s acceptance but merely said no complaint of defects in the sidewalk had ever been made to them.</p>

<p>Appeal from Boone Circuit Court. — How. D. 11. Harris, Judge.</p>

— Hon. O. A. Lucas, Judge. (1) Evidence on behalf of the plaintiff that defendant should have had a signal man to watch the hook and chain, was no evidence of negligence. Stafford v. Adams, 113 Mo. App. 72; Champagne v. Harney, 189 Mo. 709. (2) The practice of defendant in having the boom operated ‘without a signal man or without having the foreman watch it, was not negligence, and the jury should have been so instructed.

— Hon. Jos. A. Guthrie, Judge. Parol evidence is not admissible to vary tbe terms of a written contract. Tbe fraud wbicb will defeat a written contract is fraud in tbe procurement of its execution; there is no claim or evidence of fraud of this character in tbe case at bar. Johnston v. Ins. Co., 93 Mo. App. 580; Burrows v. Altar, 7 Mo. 424; Girard v. Car Co., 123 Mo. 358; Och-v. Railway Co., 130 Mo. 27; Crim v. Crim, 162 Mo. 544; Kaufmann v. Railway Co., 95 Mo.