Volume 169 — Missouri Appeal Reports

— Eon. Jas. E. . Goodrich, Judge. The court erred ■ in permitting the plaintiff to dismiss this suit after the same had been finally submitted and in'not sustaining defendant’s motion to set aside the dismissal and reinstate the cause. Sec. 1980, R. S. 1909; Publishing Co. v. Gordon, 173 Mo. 139; Board of Education v. Fidelity & Guaranty Co., 155 Mo. App. 109.'

<p>1. CHATTEL MORTGAGE: Foreclosure: Receiver. A mortgagee .of personal property sold to a third person, who was putting it to such improper use as to destroy its value. In an action to foreclose the mortgage, in which this third person was made a party, it was held the circuit court had authority to appoint a receiver for the property.</p> <p>2. -: -: -: Action at Law: Equity: Security. An action simply to foreclose a mortgage lien, is made an action at law by statute. But that does not deprive a court of equity from exercising its power to foreclose in all cases needing the aid of a court of equity to preserve the security.</p> <p>3. -: -: -: Debtor: Solvency: Security: Receiver. The fact that the debtor in a chattel mortgage may be solvent, will not prevent a court of equity from protecting the'security from destruction at the' hands of a third party, in possession, by appointing a receiver. A right to security from a debtor carries with it a right to have equity protect such security.</p>

<p>1. REAL ESTATE AGENTS: Commission: Instructions. The plaintiff sued to recover a real estate commission claimed to have been earned by securing the exchange of the defendant’s farm for an apartment house in Kansas City. Plaintiff contends he introduced the parties and participated in the negotiations. The defendant paid the $100 bonus, but refused to pay tthe commission, on the grounds of no liability. Held, that an instructiou given by the court, which compelled the plaintiff to prove by the greater weight of the credible testimony that he was the efficient and procuring cause of the exchange, was prejudicial error. '</p> <p>2. -: -: Procuring Cause of Negotiations. A real estate broker employed to effect a sale or exchange of his principal’s land is entitled to compensation, • if he is the procuring cause of negotiations which result in a sale or exchange though such negotiations be conducted and ■ successfully concluded by the principals themselves.</p> <p>3. -: Duty óf Agents: Contract of Sale. The duty of the agent is not to procure a contract of sale or exchange but to find a person who proves to be ready, willing 'and able to purchase the land on the terms proposed.</p> <p>4. DEFINITIONS: Expression. The expression “procuring and inducing cause” means the procurement of a purchaser ready, willing and able to buy the land on the principal’s terms.</p>

<p>1. CONTRACTS: Vendor and Vendee: Remedies: Stockholders. When, the vendee receives a certificate of capital stock purchased by him, and discovers that the conditions of the sale have not been performe.d by the vendors, he has the choice of two remedies, viz.: first, that of a rescission of the contract and, second, that of accepting and standing o‘n the contract and suing at law to recover the damages he had sustained in consequence of the breach of the vendors.</p> <p>2. -: Pleading: Causes of Actions. A plaintiff cannot plead one cause of action and recover on another, and to maintain an action for breach of contract it devolves on the plaintiff to prove that in seasonable time he exercised his choice of remedies, elected to. rescind the contract and fulfilled the requirements of law necessary to a proper exercise - of such right.</p> <p>3. -: -: Reasonable Time: Position. When a party seeks to rescind a contract he must do so unequivocally and in a reasonable time and must be able to put the other party in substantially the same position he was in when the contract was made.</p> <p>4. -: --: Impairment: Condoning of Fraud. Unreasonable delay, especially when accompanied with acts which recognize the contract as in existence, will be construed as condoning the fraud alleged to have impaired the contract.</p> <p>5. -: Discovery of Fraud: Rescission. Whenever a right arises by reason of the discovery of fraud then the right of election springs up also; election as to whether the party deceived will rescind or will treat the transaction as a contract.</p> <p>6. -: Repudiation of Contract: Express and Unequivocal Terms. When an election springs up the plaintiff must show that he promptly repudiated the contract in express and unequivocal terms, and accompanied such repudiation with an offer to restore the status quo and thereafter kept his offer or tender good.</p>

<p>1. NEGLIGENCE: Trespassers: Licensee. The plaintiff sued to recover damages for the death of his minor son. The son had been accustomed to frequent the railroad yards, and was encouraged by the trainmen to act as brakeman, on such occasions, over the protests of .his parents. On the day of the accident, lie boarded a moving train and climbed to the top of a car while it was being switched. He fell off the car to the track, was run over and died from the injuries. Held, the son being a wrongdoer and law breaker the plaintiff was not entitled to recover for his death.</p> <p>2. -: Res Gestae: Evidence: Dying Statement. A spontaneous statement made by a dying person, such as “If they had ' had not stopped so soon this would never have happened,” is admissible as part of res gestae.</p> <p>3. -: Trespassers: Duty of Railroad: Authority of 'Employees. It is not the duty of á railroad company to fence its yards or to exclude trespassers -from its premises and prevent them from violating the law by climbing on its moving trains. Nor did its train crews, including the conductor, have any authority, express or implied, to invite one to transgress the law.</p> <p>4. -: -: Willful Injury. The only duty a railroad company owes to a trespasser .is not to wantonly or willfully injure him.</p>

<p>1. WITNESSES: Impeachment: Criminal Law. When the defendant in a cix.uinal case offers himself as a -witness his credibility may be assailed by proof of the fact that he bears the reputation in the community of being guilty of offences against the law analagous to that for which he is being tried.</p> <p>2. -:--: -. Proof of a general reputation of being guilty of offences a-nalagous to that for which the accused is being tried, is proper evidence of impeachment.</p>

<p>Appeal from Henry Circuit Court. — Hon. G. A. Galvird, Judge.</p>

<p>1. MECHANIC’S LIENS: Judgment: Merger: Second Action. A material man. is entitled to but ono lien on the same account, and if an action is brought to obtain judgment on an account and to enforce a mechanic’s lien therefor, and judgment is rendered in such action for the enforcement of the lien, the account and lien are merged in the judgment, and a second action for the enforcement of the same lien cannot be maintained.</p> <p>2. REFUSAL OF JURY TRIAL: No issue Made: Harmless Error. If the court refuses a jury to a plaintiff in a case which belongs to a class where a right to a jury trial exists, yet the parties proceed to trial and the evidence in plaintiff’s behalf develops a case without any issue for a jury to determine, the refusal of the jury was harmless and is not reversible error.</p>

— Hon. David E. Blair, Judge. 1. Tbe agreement between Van Hoose and tbe cosureties and tbe president and treasurer of the corporation was an alteration of tbe instrument of contract of the defendant cosureties and was such an alteration as released tbe defendants as they are not shown to have consented thereto. It makes no difference whether the alteration of the agreement was material or immaterial. Banons v. ITandley, 68. Mo. App. 623; Bank v. Bosseman, 52. Mo.

— Hon. Guy D. Kirby, Judge. (1) While the burden of proof is on Smith to prove partnership, it shows that he and Shotliff engaged in a common business for profit which is sufficient and the law only requires this to be proven by preponderance of evidence. 30 Cyc. 403, Div. B; Gatewood v. Bolton, 48 Mo. 78; Miller v. Hale, 96 Mo. App. 427; Clark v. Huffacker, 26 Mo. 264; Brown v. Houchin, 154 Mo. App. 261.

— Eon. Joseph D. Perkins, Judge. 1. Bond ia not statutory bond as' is required in appeals and in sucb case judgment is void. Distilling Co: v. Kermis, 79 Mo. App. 111. 2. Surety in a bond has a right to stand on the strict letter of his bond and his obligation is strictly construed. Rothman v. Kermis 79 Mo. App. Ill; Hil v. Keller, 179 Mo. App. 710’; Erath v. Flynn, 55 Mo. App. 107; Blair v. Jus. Co., 10 Mo. 566; Harrisonville v. Porter, 76 Mo. 385. 3.

— Hon. David E. Blair, Judge. (1) In an action for malpractice plaintiff must recover, if at all, in accordance with bis allegations. Tbe evidence must be restricted within the issues made by the pleadings. 30 Cyc. 1583, par. 7 and note 4; West v. Martin, 31 Mo. 375, (2) A physician and surgeon is only required to possess and use the skill and care which is possessed and exercised generally by physcians of ordinary care and skill in similar communities.

- — Eon David E. Blair, Judge. 1. Common carriers by railroad engaged in interstate commerce are required' by tbe acts, of Congress regulating commerce to collect tbe rates published in the schedules or tariffs on file with the Interstate Commerce Commission. Act of Feb. 4, 1887, U. S. Comp. Stat. 1901, p. 3158; amended by the Act of June 29, 1906, U. S. Comp. Stat. Sup-., 1909, p. 1153, as amended-by the Act of June 18, 1910-, U. S. Comp-. Stat.

<p>Quo Warranto.</p> <p>Writ of Ouster awarded.</p>

Louis City Circuit Court. — Now. James E. Withrow, Judge. ■ (1) The body of the policy controls. If provisions are inconsistent, those most favorable to the insured govern, especially where the inconsistent provision is 'in the margin. Dezell v. Casualty Co., 176 Mo. 292; Brown v. Ins. Co., 45 Mo-. 221; Arches v. Ins. Co., 43 Mo. 434; Roark v. Surety Co., 130 Mo. App. 401; Fogelsong v. Ins. Co., 121 Mo. App.1548; Columbia Co. v. Casualty Co., 104 Mo.

Louis County Circuit Court. — lion. G. A. Wurdeman, Judge. (1) A city is liable under the Constitution 1875, art. 2, sec. 21, to abutting property owners for a material change of grade for the first time from the natural surface. Sec. 9553, R. S. 1909; Davis v. Railroad, 119 Mo. 180; Smith v. St. Joe, 122 Mo. 643; Hickman v. Kansas City, 120 Mo. 110; Markowitz v. Kansas City, 125‘ Mo. 485; Cole v. St. Louis, 132 Mo. 640; Jarboe v. City of Carrollton, 73 Mo. App. 347.

Louis County Circuit Court. — Hon. Gustavus A. Wurdemcm, Judge. (1) Proof of the death of the insured within the time required by the provisions of the insurance policy'was waived by defendant’s failure to furnish the same upon notice of his death by the attorney of the beneficiary in the policy and by the denial of any liability thereon by the adjuster and attorney for the company. Cullen v. Insurance Co., 29' Mo.

Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge. No case was made against appellant. The petition counts on theft or loss through negligence and the evideuce does not show any. Mere receipt in good order and delivery in bad order is no proof of negligence. Haase Co. v. Transp. Co., 143 Mo. App. 57; Hurst v. Eailroad, 117 Mo. App. 25 ; Hadley v. Orchard, 77 Mo. App. 141; Farr v. Adams Exp. Co., 100' Mo. App. 574; Ecton v. Eailroad, 125 Mo.

Louis City Circuit Court. — Eon. George E. Williams, Judge. (1) Judgment should have been for the defendant because there was no contract entered into between the plaintiff and defendant. The correspondence between them did not constitute a contract because there was never a meeting of the minds on the same thing in the same sense. Runyon v. Wilkinson Gaddis & Co., 57 N. J. L. 420; Sarrons v. Richards, 151 Mo. App. 656; Bailey v. Smith & Moorhead, 122 Mo.

Louis City Circuit Court. — Now. W. B. Homer, Judge. (1) As the injury occurred in Illinois, the liability of the defendant must be determined by the laws of that State, the defendant having pleaded and proved them. Fogarty v. Transfer Co., 180 Mo. 490; Root v. Railroad, 195 Mo. 348; Ginnochio v. Railroad, 155 Mo. App. 163; Farrar v. Railroad, 149 Mo. App. 188; Chandler v. Railroad, 127 Mo. App. 34. .

Louis City Circuit Court. — lion. Leo. 8. Rassieur, Judge. (1) The court erred in overruling defendant’s instruction to find for defendant on plaintiff’s cause of action at the close of the whole case, (a) Because there was not any evidence in the case either direct or inferential that any demand was made upon the defendant by plaintiff at defendant’s place of business before the institution of this suit.

Louis City Circuit Court. — Eon. William M. Kinsey, Judge. (1) The transfer of a note, in the absence of an express reservation, carries with it the security and entitles the transferee to all its benefits. Anderson v. Baumgarten, 27 Mo. 87-; Johnson v. Johnson, 81 Mo. 331; Hagerman v. Sutton, 91 Mo. 531; Bank v. Grewe, 84 Mo. 477; Trust Co. v. Smythe, 94 Tenn. 513; Brewing Co. v. Manasse, 99 Wis. 99.

Louis City Circuit Court. — Row. • William M. Kinsey, Judge. The court erred in refusing to give to the jury defendant’s instructions numbered I and II, in the nature of peremptory instructions to find for the defendant. There was absolutely no evidence of any negligence whatever on part of the defendant, constituting a basis, for recovery upon the specifications of negligence charged in the petition, and on which the ease was submitted to the jury.

Louis Court of Criminal Correction.— Hon. V. H. Falkenhainer, Judge. The statute was not intended to be invoked to settle disputed questions of boundary between coterminus landowners, and it is scarcely necessary to say that it was not intended to punish a man for making an honest mistake in regard to his own legal rights. State v. 2£nn, 26 Mo. App. 18. Even if the defendant were acting upon a mistaken view of his rights he could not he guilty.

Louis City Circuit Court. — lion. William M. Kinsey, Judge. (1) Under the pleadings and all the evidence which was adduced, the- trial court should have directed a verdict for the defendant as requested at the close of all the evidence in the case. Chemical Co. v. Peterson, 134 Fed. 789; O’Malley v. Railroad, 113 Mo. 319; Reames v. Dry Goods Co-., 99 Mo. App. 396-; Berry v. Kansas City, 128 Mo. App. 374; Lawless v. Gas Light Co., 72 Mo. App. 679.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence, for the reason that the evidence conclusively shows that deceased was guilty of contributory negligence concurring with that of defendant, in that deceased failed to look and listen for the approach of the car in question, when to look was to see, and to listen was to hear, and in that deceased drove upon the track immediately in front of the car in…

Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge. Plaintiff’s alleged claim against Southern Railway became res adjudicata by the determination in its favor at the first trial, from which the plaintiff had not appealed. Bloch v. Price, 32 Fed. 447; Berry v. Rood, 209 Mo. 662. (1) The record shows that the court acquired and had complete jurisdiction of appellant’s person and the cause and never lost it.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) The charge of negligence in the petition, that defendant’s servants in charge of the car negligently caused and suffered it to be struck and collided with by an engine, is a charge of specific negligence and hence the doctrine of res ipsa loquitur cannot be invoked. Beave v. Transit Co., 212 Mo. 331; G-ibler v. Railroad, 148 Mo. App. 475; Miller v. Railroad, 155 Mo. App. 528.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) Even if the extension of the switch was not contemplated when laid, the defendant has used it for more than nineteen years and has thus acquired a prescriptive right to so use it. Anthony v. Kennard Bldg. Co., 188 Mo. 704; Boyce v. Railroad, 168 Mo. 583; Gerstner v. Payne, 160 Mo. App. 289; Graham v. Olson, 116 Mo. App. 272.

Louis City Circuit Court. — Ron. Rugo Muench, Judge. (1) The declarations and statements of an agent (who himself in this case was also one of the joint owners of the property with the others for whom he is acting) are binding upon all jointly interested with him and for whom he is acting at the time as agent. Garnhart v. Finney, 40 Mo. 462; Brooks v. Jameson, 55 Mo. 505; Robinson v. Walton, 58 Mo. 380; Beards-lee v. Steinmesch, 38 Mo. 168.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The trial court erred in overruling defendant Park’s objection to the admission of any evidence under plaintiff’s petition, for the reason that the first count and the second count thereof do not state facts sufficient to constitute a cause of action, (a) As to the first count, no where does it appear what the alleged services of Crow consist in, or in what way they were beneficial to the trust estate, (b) There…

Louis City Circuit Court. — Ron. Moses N. Sale, Judge. (1) Each stockholder of a corporation is entitled, under the general rule of the common law (which has not been abridged by statute), to inspect its books, papers and records and to make extracts and copies therefrom, including a list of its stockholders’ names and addresses; and if such right be wrongfully denied him, it may be enforced by mandamus; the writ being granted, in the sound discretion of the court, to…

Louis City Circuit Court.. — lion.. Hugo Muench, Judge. (1) Sec. 1026, R. S. 1899 (See. 3040, R. S. 1909) has to do only with foreign corporations “doing business in Missouri.” Pláintiff did not do business in Missouri. The sale was made and performed in Pennsylvania. Textbook Co. v. Gillespie, 229 Mo. 397 Shoe Mach. Co. v. Ramlose, 231 Mo. 539 ; Engine Co. v. Apartment Co., 154 Mo. App. 139; Koenig v. Boat Co.,. 155 Mo. App. 685: Corn Products Co. v. Supply Co., 156 Mo.

Louis City Circuit Court. — Hon. Eugene McQuillen, Judge. (1) The orders in question contemplated that the McKee-Jeannette Glass Works was to manufacture the glassware in Pennsylvania and ship it to St. Louis. It was interstate commerce and the Missouri statutes could have no affect upon it without infringing upon the power of Congress to regulate interstate commerce. Glass Co. v. Glass Co., 74 C. C. A. 462; International Text Book v. Pigg, 217 U. S. 91.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The court erred in refusing to direct a verdict, for the reason plaintiff admitted he saw how the ties were loaded and knew they were in a dangerous condition — so dangerous that he would not have climbed on top of them had he taken time to think of the matter.

Louis City Circuit Court. — Row. Moses N. Sale, Judge. The court erred in instructing the jury that on the evidence the plaintiff was not entitled to recover and that their verdict should be in favor of the defendant. Stetzler v. Street Railway, 227 Mo. 454; Ridenhour v. Railroad, 102 Mo. 270; Quinn v. Street.

<p>Appeal from St. Lonis City Circuit Court. — Hon. W. B. Homer, Judge.</p>

<p>1. BILL AND NOTES: Statute of- Limitations: Application of Payment. Where a person, indebted to another on several notes all barred by the Statute of Limitations, sends money to the holder of said notes, intending to make a general payment on his barred indebtedness, with knowledge of the effect his payment would have theseon, the creditor, in the absence of directions on which barred note he should credit the payment, has the right to elect on which note the credit shall be made.</p> <p>• 2. STATUTE OF LIMITATIONS: One of Repose:. Debt not Destroyed. The Statute of Limitations is one of repose, the debt not being annihilated but only its enforcement prevented.</p>

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

— Eon. Jas. E. Slover, Judge. Kirk’s May assessment was not paid, for which reason he stood suspended when he died, and therefore his certificate was void and no recovery can be had thereon by plaintiff. Kohen v. Life Assn., 28 Fed. 705; Misselhorn v. Life Assn., 30 Mo. App. 589; Misselhorn v. Life Assn., 30 Fed. 545; Wilcox v. Woodmen of the World, 76 Mo. App. 576; McLendon v. Woodmen of the World, 52 L. R. A. 444.

<p>1. ATTACHMENT: Justices of the Peace: Jurisdiction: Collateral Attack. In a suit by attachment before a justice of the peace against a nonresident, the fact that the attached property is in the township of the justice or an adjoining township, is jurisdictional; and unless it appears upon the face of the proceedings before the justice, they are void and may be attacked collaterally.</p> <p>2.--: -: Statute: Interpleader. The, statute (Sec. 7636, R. S. 1909) requires a suit by attachment in a justice of the peace court to be brought before a justice of the township in which the property is, or in some adjoining township; and to confer jurdiction this must appear on the face of the proceedings before the justice. If it does not, the attachment may be attacked by an interpleader claiming the attached property.</p> <p>3. -: -: -: Constable's Return: Writ not Executed. If the face of the proceedings before a justice of the peace in an attachment suit shows that the constable did not execute the writ of attachment, there is no authority to proceed before the justice and the attachment may be attacked by an interpleader.</p> <p>4.--: -: -: Jurisdiction: Collateral Attack: Third Persons. An interpleader for attached property before a justice of the peace may attack the attachment proceedings for any defect fatal to the jurisdiction. He may attack it on any ground upon which it could be attacked collaterally by third persons.</p> <p>5. -: -: -: Nonresident: Return Day: Second Writ: No Service. An attachment writ was issued against a nonresident defendant, without naming a return day, though it was executed by the constable. To cure the defect, a new writ was issued and the first one abandoned. There appeared what purported to be a return of the constable on the second one; but he afterwards made return stating he had not executed the second writ. Held, the justice had no jurisdiction to proceed with the attachment.</p>

— Eon. Jas. E. Slover, Judge. (1)If Koehler and Lohse were fellow-servants the master is not liable, and mere difference in rank or authority between servants working together, is immaterial. Card v. Eddy, 129 Mo. 510; Hawk v. Lumber Co., 166 Mo. 121, 129; Fogarty v. Transfer Co., 180 Mo. 490; Radke v. Basket & Box Co., 229 Mo. 1; Rigsby v. Oil Well Co., 115 Mo. App. 297; English v. Shoe Co., 145 Mo. App. 439; Rogers v. Schiele, 148 Mo.

<p>1. PLEADING: Answer: Appointment: Incidental Admission. An answer which attacks the validity of an appointment of a curator, but incidentally concedes that the appointment was made by the probate court and asks that such appointment by the probate court be set aside, is an admission that the appointment was made by the court, which prevents raising the question on appeal.</p> <p>2. PROBATE COURT: Jurisdiction: Presumption: Collateral Proceeding. The probate court, in the appointment of curators acts as a court of general jurisdiction and the same presumptions attend its action as of any other court of general jurisdiction; and questions of fact necessary to the court’s action in legally appointing a curator, must be conclusively presumed to have been passed upon, in a collateral proceeding, and is not open for question in such proceeding.</p> <p>3. -: -: -: Curator: Defect of Record. While the jurisdiction of the probate court is conclusively presumed in appointment of curators, and if dependent on questions of fact will be presumed, in a collateral proceeding, to have been investigated and correctly decided, yet if the face of the record shows facts which leave the court without jurisdiction, no presumption can arise and jurisdiction will fail even in a collateral proceeding.</p> <p>4.--: -: -: Right of Action: Estate. Where the record of the probate court in proceedings to appoint a curator, shows that the only thing in the county owned by the minor was a right of action against a railway for damages for the death of his father, it was held that such right .of action was an “estate’’ of the minor as that word is used in the statute authorizing the appointment of curators, and gave jurisdiction to the court in appointing a curator.</p> <p>5.--:-: Transitory Action: Situs. A transitory right of action in a minor against a railway for the death of his father, has its situs in any county where the railway is found and may be sued, and authorizes the probate court of that county to appoint a curator for the minor.</p> <p>6. -: -: Statute: Penalty: Compensation. Sec. 5425, R. S. 1909, providing for a right of action in widows and minors against a carrier for the death of the husband or parent caused by the carrier’s negligence, and fixing the' sum to be recovered at not less than $2000 and not more than $10,000, is partly penal and partly compensatory.</p> <p>7.--:--:--: Statute: Widow and Children: Evidence: Support. In order that a jury may have some basis upon which to fix the compensation to the widow or children of a person killed by the negligence of a carrier, evidence of the character of the support, care and maintenance, or want of such care, support and maintenance, is admissible.</p> <p>8. EVIDENCE: Support: Divorce. In an action by a curator of minors against a railway company for the death of the father, who had been divorced from the mother, her petition for divorce was read to her as a witness. It contained many charges which, if true, would be admissible as evidence on the question of the character of support he rendered to the children, and also, many which had no bearing- on that question. She was then asked by the railway company if those charges were true, and the court refused to allow an answer. Held, that the ruling was proper, since it. would have put improper evidence before the jury along with that which was proper.</p> <p>9. NEGLIGENCE: Pleading: General or Special Allegations. Where a petition against a railway company for the death of a passenger through negligence of the company, charges generally that it was caused hy the train being wrecked hy reason of a defective track and rotten ties, — this, whether it be called general or special negligence, requires proof of the charges and limits the case to negligence in the construction of the track, and therefore the rule res ipsa loquitur does not apply.</p> <p>10..-: Proximate Cause. If a car in a train leaves the rail and runs over the ties of a railway for 450 feet when it strikes defective and rotten ties which break and crumble, causing a wreck in which a passenger is killed, — the defective ties are the proximate cause of the wreck, and not the car leaving the rail.</p> <p>11. -: -: --: -: Concurrent Negligence. Th fact that one car in a train “climbed the rail” before reaching defective ties which caused a wreck, was not the sole cause of the injury to a passenger, yet, if the injury would not have occurred but 'for the concurring cause of rotten ties, the latter is a proximate cause.</p> <p>12. -: -: -:--: Two Causes: Both Culpable. If there are two causes of injury to a passenger by a railway, for each of which it is liable, it is useless to discuss which is the proximate or remote cause.</p>

— Ron. Arch B. Davis, Judge. (1) An agreement to file the bid was ultra vires, and bence, a breach thereof could not be made the ground for damages. Bant v. Pirie, 27 C. C. A. 171, 82 Fed. 799; Liggett v. Bank, 233 Mo. 590, 606. Moreover, the bid could not be filed without the bond, which was never execeuted. The contract relied upon must be confined to the alleged agreement to execute the proposal bond.

— Hon. Jos. A.. Guthrie, Judge. (1) (a) It was not within the power of the local council, its recorder or any other officer of the organization to waive or dispense with any of the requirements of the appellant’s order which related to the very substance of the contract, Lavin v. Grand Lodge, 104 Mo. App. 18; Boyce v. Royal Circle, 99 Mo. App. 355; Borgraefe v. Knights of-Honor, 22 Mo. App. 141; Harvey v. Grand Lodge, 50 Mo.

<p>1. PLEADING: Intent: Statute: Common Law. If the face of the petition, discloses a plain intent to found an action upon a statute, it will be considered an action on such statute and not at common law.</p> <p>2. CONTRIBUTORY NEGLIGENCE: Directing Verdict: Error Cured. Where contributory negligence is pleaded and evidence is heard tending to support the plea, it is error to give an instruction directing a verdict for plaintiff, which ignores the hypothesis of such contributory negligence. But the error is cured if followed by one for defendant in which it is declared that contributory negligence by plaintiff will prevent his recovery. \</p> <p>3. MASTER AND SERVANT: Employment of Minors: Statute: Contributory Negligence: Instructions. If an employer, in violation of the statute (Sec. 1723, R. S. 1909) hires a person under sixteen years of age to clean machinery in a factory, and the person is injured in such work, the employer is guilty of negligence per se, and the child cannot be declared guilty of contributory negligence as a matter of law; but he may bo guilty of contributory ’negligence as a matter of fact, to be determined by a jury.</p> <p>4.--:---: Instruction: Error: Duty: Opposite Party: Cure. It is never the duty of one party to ask an instruction which will cure the voluntary error in the instruction of his opponent.</p>

— Hon. Carr McNatt, Judge. (1) Tlie court erred in telling the jury in plaintiff’s instruction 2 defining the measure of damages that they should take into account all loss of earnings, if any, which they may find from the evidence plaintiff has already sustained by reason of such injuries, and that they should take into account all loss of earnings, if any, that they may find from the evidence plaintiff will sustain in the future as direct result of such injuries, if any,…

— Hon. Guy D. Kirby, Judge. (1) 'The rule laid down in instruction 1 violates three cardinal rules of construction, a. In construing a contract the intention of the parties, if the same can he ascertained, - must govern. Maginn v. Lancaster, 100 Mo. App. 116; Wall v. Casualty Co., Ill Mo. App. 504; Imboden v. Trust Co., Ill Mo. App. 220; Wilson v. Wilson, 115 Mo. App. 641; Comstock v. Flower, 100 Mo.

Jasper Circuit Court, Division Number One. — Hon. Joseph I). Perkins, Judge. (1) Where reformation of an instrument is prayed, the preceding agreement must be shown. Dougherty v. Dougherty, 204 Mo. 237. (2) Courts do-not make agreements for the parties. Both the agreement and the mistake must b.e shown; and the evidence in such case must be clear and convincing.

—Hon. D. E. Blair, Judge. (1) A corporation is liable in damage to a bona fide purchaser or pledgee of an over-issue or fictitious certificates of stock, if they were issued by an officer or agent under authority from the corporation or its managing officers, or by an officer or agent clothed with apparent authority, although his act may have been in fact unauthorized and fraudulent; or if their issue and the consequent injury were the result of negligence on the part of the…

Lawrence Circuit Court. — -How. Carr McNatt, Judge. (1) Sec. 964, R. S. 1909, was enacted for the protection of just such rights as plaintiff asserts in the action at bar. Smooth v. Shy,-Mo. App.-, 139 S. W. 239; Wait v. Railroad, 204 Mo. 491.

— Eon. Thos. JSeehorn, Judge. (1) The introduction of any evidence tending-to show more than nominal damages was error for the reason that the petition does not state a cause of action for more than nominal damages. (2) Error in giving instruction number 1 asked for by the respondent because it ignores and excludes the issue and theory of the appellant offered as a defense to-this action.

<p>1. SALES: Warranty: Rescission. A fraudulent warranty that a stallion is sound and that he is a good breeder, is broken and will justify a rescission, either if the horse is blind in one eye or is not a good breeder.</p> <p>2. -: -: -: Stallion: Good Breeder: Sound: ’Measure of Damages. If a buyer purchases a stallion, taking a warranty of soundness and that he is a good breeder, and pays for him with another stallion and a jack and his note for $300, which he afterwards pays, and he discovers the stallion is blind, ■or is not a good breeder, and offers to rescind by delivering the stallion back to the seller, the latter refusing to return what he received, the buyer may recover as his damages the money paid on the note and the market value of the animals he transferred to the seller.</p>

— Hon. W. A. Powell, Judge. (1) The court erred in giving defendant’s' instruction in the nature of a demurrer to plaintiff’s first count in its petition. Shoe Co. v. Ramlose, 231 Mo. 508; Blackmer v. Railroad, 101 Mo. App. 557; Kirk v. Kane, 87 Mo. App. 274; Land Co. v. Tie Co., ■87 Mo. App. 167; Allen v. McMonagle, 77 Mo. 478; Sherman v. Printing Co., 29 Mo. App. 31; 38 Cyc. :2025.

<p>1. HUMANITARIAN RULE: Concurring and Contributory Negligence. In an action brought for an injury under the humanitarian doctrine, neither contributory nor concurring negligence, though continuing up to the catastrophe, is a defense. This is an exception to the rule that contributory or concurring negli- ■ gence will bar an action by the injured party. Holwerson v. Railway Co., 157 Mo. 216, discussed in light of Murphy v. Railroad, 228 Mo. 56.'</p> <p>2. -: -: Excessive Verdict. After three verdicts for the plaintiff, the second being for as great a sum as the present judgment, and the last being for more, with a remittitur down to the same as the second, the court declined to interfere further.</p>

<p>1. NEGLIGENCE: Street Railways: Humanitarian Rule. The plaintiff sued to recover damages for personal injuries sustained when an electric street car struck his wagon. Plaintiff was driving a beer wagon south on the west track of the defendant’s street car line, when a car came up behind him, and, as other vehicles prevented him from turning to the right, he was compelled to turn to the left and go upon the east track. As soon as he could get a clearance he pulled hack to the right to let a northbound car páss, which was then about 200 feet away. The car never slackened its speed but came on at a high rate of speed and struck the huh of the wagon, whereby the plaintiff was thrown out of the wagon to the curb and injured. Held, that the plaintiff rightfully recovered under the humanitarian rule.</p> <p>2. -:--: Duty of Motorman. A motorman seeing a wagon approaching his moving car, has a right to indulge in the presumption that the driver will leave the track in time to avoid a collision as his duty requires him to do, until a reasonable man in the position of the motorman could see that the driver with eyes open was heedlessly and wantonly permitting his position of safety to merge into one of danger.</p> <p>3. INSTRUCTIONS: Damages: Future Pains. An instruction is not erroneous, which entitles one to recover for such future pains as he is reasonably certain to suffer, and not for merely possible or even probable suffering.</p>

<p>1. NEGLIGENCE: Street Railways:' Sudden Jerk. Plaintiff sued to recover for personal injuries, sustained by his wife, while alighting from the defendant’s street car. The plaintiff’s wife, and their son, twelve years old, were passengers on an eastbound electric street car of defendant, on Eighteenth street. When the car stopped at a regular stopping place on the west side of Prospect avenue, plaintiff's wife and her son proceeded to alight and take a southbound car. While the wife was in the act of alighting, the car suddenly started forward and threw her to the pavement, and injured her. EeW, that the demurrer .to the evidence was properly overruled.</p> <p>2. EVIDENCE: Res Gestae: Conversation. When a conversation with an injured person is offered in evidence, which relates to a fact that is not a part of the res gestae, it is inadmissible.</p>

<p>1. NEGLIGENCE: Street Railways: Acceptance of Passengers: Sudden Jerk. The plaintiff sued to recover damages, for personal injuries received while boarding one of the defendant’s street cars at the corner of Seventh street and Quindaro boulevard, Kansas City, Kansas. She, and two women companions, boarded the defendant’s street car at that point; but while the plaintiff, who was the last passenger in line, was in the act of pulling herself up so that her weight rested on the- first step, the car suddenly lurched forward and she was thrown violently around and injured. Bx,Vd, that the plaintiff was accepted as a passenger and entitled to recover for the injuries received by the negligence of the defendant. ■</p> <p>2. -: -: -: -. When one who has been invited to become a passenger on a street car, responds to the invitation, places himself on .the car before it starts and is in a position where a sudden start of the car would imperil his safety, the operators are bound to tahe notice of his situation, and a sudden movement of the car, which would endanger' him, would be a breach of the duty a carrier owes its passengers.</p> <p>3. INSTRUCTIONS: Sudden Starting of Car. An instruction that fails to require the jury to find that the sudden starting of a street car was negligent, is not erroneous, because the question of negligence, or no negligence, under a statement of facts, if existent, is one for the court to determine and not for the jury.</p>

<p>Appeal from Vernon Cirenit Conrt. — Hon. B. G. Thurman, Judge.</p>

<p>1. PUBLIC POLICY: Physician: Contract: Injunction. A valid contract may he made whereby a physician may agree not to practice his profession within ten miles of a certain town for a period of ten years; >and injunction will lie to prevent a violation of the agreement.</p> <p>2. -: -:--: Consideration: Partnership: Mutuality. Mutual promises in a contract are considerations for. each other and a contract of partnership properly supports a stipulation that on dissolution one of the partners will not practice in a certain place for ten years.</p>

— Hon. Jas. E. Goodrich, Judge. (1) Plaintiff, respondent, should have been denied a decree because the testimony disclosed that he was guilty of misconduct in that he connived at and procured the acts to be done and committed for and upon which he predicated his right to a divorce; and this cause should, therefore, be by this court reversed with directions that plaintiff, respondent’s bill be dismissed. 14 Cyc. 644; Nagel v. Nagel, 12 Mo. 53; Golding v. Golding, 6 Mo.

— Eon. E. B. Shciin, Judge. (1) The contract of an agent in excess of his authority is void; Burks v. Stone, 65 Mo. App. 455. (2) An agent authorized to sell goods for cash has no authority to exchange them nor to take anything except cash in payment. Wheeler and Wilson v. Givan, 65 Mo. 89. (3) An agent’s authority cannot be shown by his own declarations. Stove Co. v. Hardware Co., 93 Mo. App. 237.

<p>Appeal from Jackson Circuit Conrt. — Son. W. 0. .Thomas, Jndge.</p>

— Hon. O. A. Lucas, Judge. (1) The court below erred in not sustaining the demurrer to the evidence because no competent evidence was submitted showing respondent to have been injured by an obstruction in a public street. Fowler v. Elevator Co., 143 Mo. App. 422; Sbeldon v. Railroad, 29 Barb. 226; Oglesby v. Railroad, 177 Mo. 272; Byerly v. Consolidated Co.., 130 Mo. App. 193.

<p>1. MISDEMEANORS: Gambling Devices. The defendant was prosecuted and convicted on the charge of permitting a gambling device, commonly called a slot machine to be run on his premises. Held, that a contrivance which was intended to allure the player into continuing to play in the hope that next time the indicator would point to trade checks and thus bring him something for nothing, is clearly a gambling device.</p> <p>2. -: Ordinance: Publication. When a city ordinance is introduced in evidence, and the proof meets the requirements of R. S. 1909, section 6295, in regard'to the publication, it is prima facie evidence that the ordinance was duly enacted and published, and the burden is on the defendant to show that the ordinance was net published as provided by law.</p> <p>3. -: Validity of Ordinance: Statute. When a statute and an ordinance both treat the offense in question as a misdemeanor punishable by imprisonment in the jail or workhouse, or by fine, the fact that the ordinance prescribes not a different kind but a lighter degree of punishment than the statute, does not militate against it’s validity.</p> <p>4. Definitions: Gaming and Gambling Devices. In legal significance the terms “gaming device” and “gambling device” are synonymous and include all instruments, implements, devices and means which are made and used in unlawful gaming.</p> <p>5. -: Gaming. To constitute gaming there must not only be betting upon the determination of an event, but the course of action to bring about such an event must have been arranged and commenced with the view to determine the bet.</p>

— Eon. W. 0. Thomas, Judge. (1) To constitute a novation four things are necessary : a.' A previous valid obligation, b. Tbe agreement of all tbe parties to tbe new contract, c. Tbe extinguishment of the old contract and release of tbe old debtor, d. Tbe validity of tbe new contract. 29 Cyc. 1130; Brown v. Croy, 74 Mo. App. 462.

— Hon. B. G. Thurman, Judge. (1) If the plaintiff voluntarily assumes a dangerous position, .he is guilty of contributory negligence such as will bar his recovery as a matter of law. 54 Mo. App. 527; La Batt on Master and Servant, p. 800; Doerr v. Brewing Assn., 176 Mo. 574. (2) At common law the contributory negligence of plaintiff bars a recovery for his injuries, and this rule is without exception.

<p>1. APPEAL: Opinion of Court on Previous Appeal of Case: Instruction Corresponding with, Proper. An instruction which was held to be erroneous on a former appeal .and which on a retrial was corrected to correspond with the views of the court expressed in the previous opinion, was properly given on a retrial of the case.</p> <p>2. ABANDONED PLEADINGS: Admissible in Evidence for What Purpose. Abandoned pleadings are competent against the.parties to the litigation as admissions.</p> <p>3. PLEADING: Testimony of Party Filing: When Contradictory. Assuming that a pleading filed at the instance of a witness is admissible for the purpose of contradicting such witness, yet the testimony proposed to be contradicted by the pleading must really be inconsistent with the allegations of such pleading.</p>

<p>1. CONTRACTS IN WRITING: Statements and Conduct of Parties Thereto: Weight of. Where the construction of a contract is involved which the parties thereto have treated as one subject to construction aliunde, the meaning which the parties have placed upon the agreement by words and conduct is a proper guide in arriving at its intendment and is of more importance than an abstract meaning that a court may attach to same by reason of its mere phraseology.</p> <p>2. CONTRACTS: Construction of Dependent on Extrinsic Facts: Interpretation for the Jury. The construction of a contract containing ambiguous phrases is for the jury, when it depends on extrinsic, unconceded facts.</p> <p>3. INSTRUCTION: Error in: Commission Contract on Sale of Land. A contract between plaintiff’s intestate and defendants provided that in the event an option of sale on certain land should be obtained from R. and a sale thereunder consummated, defendants would pay plaintiff’s intestate $2500 for his assistance in procuring the option. The evidence showed that the sale of an undivided sixth interest of the land was made after the expiration of the option. Defendants requested an instruction that if no part of the land was sold during the life of the option and it was agreed between the parties. to the contract that the sale of the undivided interest was not to be treated as a sale by the defendants, so as to render them liable under the contract for the payment of the above amount, and that, in lieu of the said sale the contracting parties agreed that the remuneration of the plaintiff’s intestate should be paid from a sale of the remaining two-thirds interest in the land, on which an option was at that time taken, then, the verdict of the jury should be for the defendant; which instruction the court refused. Held, that such refusal was error.</p> <p>4. INSTRUCTIONS: Error in: Construction Placed on Words of Contract. A contract provided that defendants should pay $2500 to plaintiff’s intestate in the event of the sale of certain land, an option for which sale plaintiff’s intestate was to assist in procuring and was “to render other service,” the contract to be void should no deal be consummated. Held, that an instruction allowing a recovery “for rendering other services in consummating a sale” was error as it assumed an obligation on the part of the plaintiff’s intestate not stated in the contract and presumed that the expression “other service” contained ’ in the contract meant' “consummating a sale.” ‘</p> <p>5. CONTRACTS: Substituting One for Another: Consideration. A contract, either oral or written, may be abandoned by the parties thereto and a new contract be made superseding the former one; and the making of the new contract and the mutual promises incident thereto would constitute sufficient consideration for the abandonment of the previous contract.</p> <p>6. CONTRACT: Death of One Party to: Evidence. In a suit between plaintiff’s intestate and defendants for a commission under a contract, the defendants not being allowed to testify because of the death of the other party to the contract, the court will admit all testimony, however remote, which has a bearing on the question at issue.</p>

— Hon. E. E. Porterfield, Judge. (a) The cause sued on accrued in the State of Kansas. An action thereon, can be maintained in Missouri only by virtue of some law of Kansas creating a right of action. The petition pleads specifically that by virtue of the Q-eneral Statutes of the State of Kansas the common law obtained in that State at date of alleged injuries. But plaintiff failed to introduce in evidence such statutes and failed to prove that fact.

<p>Appeal from Jackson Circuit Court. — Hon. 0. A. Lucas, Judge.</p>

<p>1. PRACTICE, TRIAL: Demurrer to Evidence: Tendency to Prove: Contradiction. When the verdict is for the plaintiff the evidence in his hehalf must be accepted as establishing the facts which it tends to prove, and the evidence for defendant contradictory must be rejected.</p> <p>2. NEGLIGENCE: Contributory Negligence: Collision. An employee of a railway company was directed by the foreman at the roundhouse to go with a switch engine, in charge of a hostler and a boy helper, to a station house about a mile distant. A switch connected the roundhouse track with the main track. When the engine arrived near the switch there was a long freight train belonging to the company standing on the main track, with the rear car so close to the passing point at the switch as to just leave clearance space. The hostler stopped the engine while the boy helper went forward and threw the switch. Then the hostler sounded a signal with the whistle . and started up in plain view of the train crew. Just as he was passing into, or over the switch, the standing train moved backward without warning and struck the engine catching and crushing the employee’s hand. -Held, that the question of negligence of the train crew and contributory negligence of those in charge of the engine were for the jury, since neither could be declared as a matter of law.</p>