Volume 170 — Missouri Appeal Reports

— Ron. W. 0. Thomas, Judge. (1) The variance between the mechanic’s lien and the petition and the judgment is fatal to recovery by respondent. 13 Ency. of Plead. & Prac., p. 1004; Dugan v. Higgs, 43 Mo. App. 166; Plenry v. Mahone, 23 Mo. App. 83; Guass v. Hussman, 22 Mo. App. 115; Poppert v. Wright, 52 Mo. App. 576; Palmer v. La-vigne, 104 Cal. 30; Frazer v. Barlow, 63 Cal. 71; Mc-Adow v. Miltenberger, 75 Mo. App. 346; Davis v. Bond, 75 Mo.

— Hon. E. E. Porterfield, Judge. (1) The court erred in overruling defendant’s demurrer to plaintiff’s petition because it does not state facts sufficient to constitute a cause of action against defendant. Diener v. Pub. Co., 230 Mo. 627; Diener v. Pub. Co., 232 Mo. 416; Tilles v. Pub. Co., 145 S. W. 1152; McClure v. Pub. Co., 38 Wash. 160, 80 Pac. 303.

Circuit Court. — Son. Alex. S. Waller, Judge. Where the rent reserved is a certain fixed proportion of the price of the products which the lessee may get and sell, or a royalty on the mineral mined, the law. implied the intent on the part of the gi antee to work the mine in a proper manner and with reasonable diligence, so that the grantor may receive the compensation or income contemplated when the agreement was made. Cyc., vol. 27, p. 705 and cases there cited.

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

— Hon. W. 0. Thomas, Judge. (1) The court erred in admitting testimony of .miscarriage, and,in admitting testimony of inability to sleep, because such evidence broadens the issues made by the pleadings. Thompson v. Railroad, 111 Mo. App. 465; Price v. Railroad, 220 Mo. 435; Moore v. Transit Co., 226 Mo. 689; Margrane v. Railroad, 183 Mo. 119; Arrata v. Railroad, 150. S. W. 1122; Conway v. Railroad, 143 S. W. 516.

<p>Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.</p>

— Hon. 0. A. Lucas, Judge. (1) Is tbe attempted release by Howard invalid, .if be was not tbe .owner, of tbe note, and was not an-thorized by the owner thereof to make the release? Investment Co. v. Yette, 142 Mo. 574; Joerdens v. Schrimpf, 77 Mo. 382; Brown v. Koffler, 133 Mo. App. 501; Bank v. Life Ins. Co., 145 Mo. 142. (2) ' Was the circuit court justified in granting a new trial to respondent?

— Hon. O. A. Lucas, Judge. (1) (a) It cannot be claimed in this case that there was any express warranty that the machines were fit for any particular use, or that they could be resold, (b) The law does not imply a warranty that an article is fit for a particular intended use, nor that it can be resold. Fairbanks v. Baskett, 98 Mo. App. 69; Davis v. Mallory, 137 Fed. 332, 69 L. R. A. 973; Hotel Co. v. Wharton, 79 Fed. 43.

— Hon. W. K. Amick, Judge. It was proper for the hoard of public works, to designate concrete for the paving, but it is not within the power of the board, to select a particular kind, the right of which to use is solely in one party. Schoenberg y. Field, 95 Mo. App. 241; Taylor v. Schroeder, 130 Mo. App. 483; Curtice v. Schmidt, 202 Mo. 722.

— Eon. W. D. Rush, Judge. (1) The appellate court will examine the evidence in the divorce suit for itself and reach its own conclusion. And where upon review of all the evidence the appellate court disagrees with the finding of the court below it should award such judgment as the trial court should have awarded. Grove v. Grove, 79 Mo. App. 142; Torlotting v. Torlotting, 82 Mo. App. 192.

— Hon. John M. Williams, Judge. (1) Plaintiffs were required to set forth all the facts in such a way as to give defendant full information so that she could properly prepare her defense. Chemical Works v. Nemnich, 169 Mo. 398; Sindway v. Land & Live Stock Co., 163 Mo. 342; Cook v. Putnam & Co., 70 Mo. 668'; Saxton v. Railroad, 98 Mo. App. 494.

— Hon. G. W. Wanamaher, Judge. (1) There can he no question, but the sale under which defendant purchased was a judicial sale, and the principles governing that character of sale must control. In such a sale the court ordering and approving the sale is regarded as the contracting party on one side, and the bidder on the other. Bliekenderffer v. Hanna, 231 Mo.. 109.

<p>1. EQUITY: Deeds of Trust: Affirmative Relief. This is an action to cancel a certain promissory note and deed of trust executed and delivered by plaintiffs to the defendants. After the commencement of the suit the parties agreed that plaintiff might deposit with the clerk a sum of money equal to the ■amount due on the note, and deed of trust, and the deposit should be held pending the disposition of the case. The deposit was made and judgment rendered in accordance with the terms of the agreement. The trial court found that the note evidenced a legal obligation, and ordered the clerk to turn the money over to the defendants. • Eeld, that the order for the clerk to pay the money to its lawful owner was within the scope of the issues raised by the pleadings and in no sense may be considered as a judgment for affirmative relief.</p> <p>2. -: Jurisdiction: Rights and Remedies. Although a court of general jurisdiction acquires complete jurisdiction of the parties and subject-matter of an action, it has no power to render judgment conferring a right or remedy upon one of the parties which is beyond the scope of the issue raised by pleadings.</p>

<p>Appeal from Sullivan Circuit Court. — Eon. Fred Lamió, Judge.</p>

<p>1. LOCAL OPTION: Special Elections: Orders of Court. The defendant was tried and convicted for selling liquor in violation of Art. 3, Ch. 63, R. S. 1909, commonly known as the Local Option Law. The county court ordered a special election to determine the question of local county option, and provided for the means for holding the election. The defendant contends that the order by the county court failed to state that the issue should be submitted to qualified voters; and, second that the demurrer to the evidence should have been sustained because he was merely an agent, and not the vendor. Held, that the cause was tried without prejudicial error, and the judgment is affirmed.</p> <p>2. -: -: Records. When a special election is held un- . der the order of the county court it is only essential that the record shows compliance with the requirements of the statute.</p>

<p>1. SPECIAL TAXBILLS: Discount: Fraud. It is not fraudulent for a contractor who is about to secure, or has secured, - a contract for the paving of a certain district in a city, from the board of public works, in order to induce the parties in the benefited district not to contest the special taxbills issued for that purpose, to openly promise all the parties so assessed a discount for the prompt payment of the bills.</p> <p>2. -: Secret Rebate: Fraud. The offer of a secret or a special rebate to one or more of the abutting property owners made by the successful bidder for the .purpose of preventing or allaying the opposition of such owners to the proposed improvement, and at a time when their opposition might prove sufficiently effective to defeat the bidder and prevent him from obtaining the contract, is a fraud the law will not tolerate nor allow to come to a successful issue.</p>

— Hon. Nat. M. Shelton, Judge. (1) Plaintiff baying indorsed the note to the bank, on being .compelled to pay same was re-invested with title thereto, and entitled to proceed thereon as though he had not negotiated it. Peers v. Kirkham, 46 Mo. 146; Keys v. Keys, 217 Mo. 48; Penh v. Dugdale, 31 Mo. 580. In Penn v. Dugale it is held that the in-dorser’s action can only be maintained upon the bill itself.

Division Number Two. — Hon. David E. Blair, Judge. (1) Garnishee’s motion to make tlie depositor a party to the action should have been sustained. Sec. 2439, R. S. 1909.

— Hon. Jesse G. ' Sheppard, Judge. (1) The trial court haying sustained the motion for a new trial on a particular ground assigned in the motion, necessarily overruled the motion as to the other grounds therein contained. Thielle v. Bailroad, 140 Mo. 335; Bradley v. Beppell, 133 Mo. 560.

— Ron. J. C. Sheppard, Judge. (1) Plaintiffs claim tbe right to the possession of the mules in suit by virtue of a second chattel mortgage, which was given to them to secure the payment of a note executed to G-. A. Sheppard, payee. That note was executed by Rook, as principal, and by plaintiffs as sureties. It was not paid off by a renewal note, but was paid off with money borrowed on a new note, a new contract.

Division Number One. — Hon. Joseph D. Perkins, Judge. (1) Tbe court erred in not requiring plaintiff to elect on wbat theory be would try tbe case, either as an action for damages for fraud and deceit, or for rescission Jof contract, or for breach of warranty. Barnett v. Nolte, 55 .Mo. App. 184; Bank v. Umratb, 42 Mo. App. 528. (2) Tbe plaintiff must recover, if at all, on tbe cause of action stated in bis petition.

■ Appeal from. Taney Oircnit Court. — Hon. John T. Moore, Judge. (1) The motion of defendants for damages oa appellant’s injunction bond was not sufficient on which to base the judgment rendered thereon by the court. (2) Upon the face of the record of the judgment rendered by the court, without a jury being waived by the parties, the judgment is null and void.

<p>Appeal from Dade Circuit Court. — Hon. B. G. Thurman, Judge.</p>

— Hon. J. G. Sheppard, Judge. (1) Persons, in order to be guilty of living together in open and notorious adultery, as meant by the statute, must reside together publicly in the face of society, as if the conjugal relation existed between them, and their illicit intercourse must be habitual and not occasional. All of the essential elements are disproved in the case at bar, and the court erred in not directing a verdict for the defendants.

— Hon. Joseph B. Perkins, Judge. (1) Tbe court erred in refusing to give appellant’s peremptory instruction at the close of the evi-deuce. Richey v. Woodmen of the World, 163 Mo. App. 235; Egan.v. Life Ins. Co., 80 N. W. 1020, 105 Wis. 217; Thieband v. Woodmen of the World, 69 Pac. 348, 65 Kan. 332; W. O. W. v. Hruby, 96 N. W. (Neb.) 998; W. O. W. v. Huyler, 24 Ind. App. 109; Mason v. Supreme Lodge, 109 Ill. App. 10; Hardinger v. M. B. A., 103 N. W. (Neb.) 74.

— Eon. Nat. M. Shelton, Judge. (1) Where there is a conflict between the application and the benefit certificate the benefit certificate controls. Niblack on Benefit Societies (2 Ed.) 273, sec. 138; Thomas v. Leake, 67 Texas, 469, 3 S. W. 703; 29 Cyc. 65; McDermott v. Modern Woodmen of America, 97 Mo. App. 636; Pauley v. Modern Woodmen of America, 113 Mo. App. 473; Loyd v. Modern Woodmen, 113 Mo. App. 19; Gallop v. Royal Neighbors, 150 S. W. 1118.

Jackson Circuit Court. — Hon. Thos. J. Seehorn, Judge. (1) The court should have sustained the lien claimed by plaintiff against the freehold interest of respondent Helen O. Orear, because under the lease Helen O. Orear required the improvements, into which the materials furnished by appellant entered, to be made, and constituted the lessee, Comet Realty Company, her agent to make the said improvements. Dougherty-Moss Lbr. Co. v. Churchill, 114 Mo.

— Eon. Jos. A. Guthrie, Judge. (1) The court’s action in permitting respondent to amend its petition at the close of the trial and after both sides had rested, was erroneous. Eldredge v. Hargraves, 30 Neb. 642; Meacham v. Cooper, 36 Minn. 227, 30 N. W. 669. (2) Special damages are a proper ■element of recovery in this sort of an action if they are specially pleaded. Mallory v. Elwood, 120 la. 362, 95 N. W. 176; 35 Cye. 451; Ellis v. Tips, 40 S. W. 524.

— Eon. G. A. Denton, Judge. (1) The petition states no canse of action. There is no allegation of negligence in respect to any of the acts of defendant’s servants alleged in the petition. There is no allegation of wantonness. There is no allegation that the acts done by the defendant’s servants were wrongful. There is nothing to point ont to the court or to the defendant what is the wrong charged.

— Hon. H. B. Shain, Judge. (1) The court should have given the peremptory instruction asked hv appellants at the close of the evidence: Because the petition does not state that the cross arm and pins referred to in the - petition were furnished for the purpose of hearing the weight of linemen.

Clay Circuit Court.- — lion. Francis H. Trimble, Judge. (1) It was error to admit testimony of the alleged conversation by Weinberger with defendant’s agent as to his intention with respect to leaving plaintiff’s books in the store if he walked home. This occurred about a year -before the policies sued on were issued. Rodgers v. Ins., 155 Mo. App. 276; Hutchinson v. Ins. Co., 21 Mo. 97; Deitz v. Ins. Co., 38 Mo. 85; Rothschild v. Ins. Co., 62 Mo. 356; Carpenter v. Ins.

— Hon. O. A., Lucas, Judge. (1) The deceased Ruby S. Crohn having made application for membership of defendant order at Hutchinson, Nansas and being received into membership there, his contract was a Kansas contract, and is governed by the laws of the State of Kansas, and the plaintiff cannot recover, the evidence showing that he committed suicide.

<p>1. NEGLIGENCE: Personal Injuries: Car Cleaners. The plaintiff sued to recover damages for personal injuries received while she was employed as a cleaner of Pullman cars, on a train called the “Meteor.” While she was performing her duties, the railroad company uncoupled the smoking car, from the one in which she was washing and had it repaired. When the smoking car was brought back, it was coupled on the train without warning to the plaintiff; and with such force that she was thrown from the top of a step-ladder to the floor of the car and injured. Held, that the defendants, the railroad company, and the Pullman Car Company both were recreant, and neither should be heard to excuse itself on the plea that the other was at fault.</p> <p>2. -: -: Master and Servant: License by Invitation. The plaintiff was not the servant of the railroad company, and, of course, was not subject to the orders of that company, except such orders as were approved and adopted by her master for her guidance and protection, but she was on the property of the railroad -company, not as a trespasser or licensee by sufferance but as an invitee or, as a licensee by invitation.</p>

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

- — Hoto. A. A. Whitsett, Judge. (1) There is no question of waiver of the violation of the concurrent insurance clause in the case, (a) The case was not tried below upon the theory of waiver, (b) Moreover, there was no proof of waiver. Patterson v. Ins. Co., 164 Mo. App. 163; Rogers v. Ins. Co., 155 Mo. App. 276.

— Hon. H. B. Sham, Judge. (1) Appellant was not a party to the appraisal and the same was a fraud upon it. (a) Appellant not a party to the appraisal. McNees v. Ins. Co., 69 Mo. App. 244-5. (b) The appraisal a fraud upon appellant. Perry v. Ins. Co., 40 S. E. (N. C.) 889; Os-trander on Fire Ins. (2 Ed.), 593; 2 Cyc. 749; Bis-phane on Equity (6 Ed.), 312; Dorsett v. Mfg. Co., 131 N. C. 260, 42 S. E. 612.

- — Eon. W. K. Amick, Judge. (1) By attempting to drive upon defendant’s track without looking for its switch engine plaintiff assumed the risk of her horse tailing fright. Phe-lan v. Paving Co., 227 Mo. 666. (2) Plaintiff was standing in a place of perfect safety, at least twenty feet from the defendant’s track.

— Eon. Thos. J. Se-ehorn, Judge. (1) It has been held, that refusal of a husband to live with his wife writing her a letter, that he… Held: that refusal of a husband to live with his wife writing her a letter, that he intended to leave her and posting a notice not to credit wife, were not such indignities as would entitle wife to a divorce. Hooper v. Hooper, 19 Mo. 355; Doyle v. Doyle, 26 Mo. 545 ; Webb v. Webb, 44 Mo. App. 229; Holschback v. Holschback, 144 Mo. App. 247.

— Ron. Samuel Davis, Judge. (1) The court erred in .considering and sustaining the demurrer to the evidence and directing a verdict for defendants when the plaintiff was partly through plaintiff’s evidence and before plaintiff had concluded his evidence in chief or rested his case and without allowing plaintiff opportunity to present all his evidence in chief.

<p>Appeal from Jackson Circuit Court. — Hon. Thos. J. Seehorn, Judge.</p>

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

— Ron. Jas. E. Goodrich, Judge. (1) The contract haying been made for the benefit of plaintiff, judgment should have been for it. Crone v. Stinde, 156 Mo. 262; Porter v. Woods, 138 Mo. 5391; Beattie v. G-erardi, 166 Mo. 142. (2) The provision, in paragraph 6 of the contract, that defendants should “release” Lyons means that they should discharge Lyons from the obligation, either by payment or its equivalent. Baker v. Baker, 29 N. J. Law 13; Field v. Columbet, 9 Fed.

Circuit Court: — lion. W. A. Poivell, Judge. (1) The court erred in giving instruction No. 5 at the instance of the respondent, which instruction is one on the measure of damages and is as follows: “The court instructs the jury that if you find for the plaintiff, you should assess her damages at such an amount as you find and believe from the evidence will he a fair compensation to her for the pain of body and mind, if any, which she has suffered occasioned by her injuries…

— Hon. W. K. Amick, Judge. (1) The court erred in not sustaining appellant’s demurrer to the evidence. Under the testimony respondent was not the procuring cause of the sale, never introduced the parties, did not bring them together and is entitled to no commission. Blackwell v. Adams. 28 Mo. App. 61; Mead v. Arnold, 131 Mo. App. 222; Tooker v. Duckworth, 107 Mo. App. 231; Real Estate Co. v. Real Estate Co., 144 Mo. App. 620.

— Hon. W. D. Hush, Judge. (1) The court committed error in refusing defendant’s demurrer offered at the close of all the evidence, for the following reason: The written notice served on the city failed to state that the defect complained of was located in St. Joseph, Buchanan county. Missouri. R. S. 1909, sec. 8863. (2) Plaintiff’s testimony shows there was no negligence on the part of the city, and she is hound by her own statements. Holmes v. Leadhetter, 95 Mo.

— Hon. Jos. A. Guthrie, Judge. A policy may call for immediate proof of loss. But if it does not also provide, in express terms, that failure to give same shall work a forfeiture of the insurance, no forfeiture will result from failure to furnish such proof of loss and assured may recover its loss..

— Hon. D. H. Harris, Judge. (1) A will contest is an action at law and the parties have a right to a trial by jury, and where there is any evidence of incapacity, the case should be submitted to the jury. Goodfellow v. Shannon, 197 Mo. 277; Eoberts v. Bartlett, 190 Mo. 695; Schaff v. Peters, 111 Mo. App. 447.

Appeal'from Buchanan Circuit Court. — Hon. W. D. Bush, Judge. Plaintiff was guilty of contributory negligence in attempting to leave the sidewalk and pass into the street at a point other than the usual street crossing and while so doing, when in close proximity to the curb and gutter, in failing to observe where she was going, but continued walking while looking in another direction at a passing street car and team of horses.

— Hon. W. D. Busk, Judge. (1) Plaintiff’s own negligence contributed to the injury he complains of. It was the sole cause of his fall. The jury should have been instructed to return a verdict for defendants. McHugh v. Paving Co., 106 N. Y. S. 165; Steinbrenner v. Forney, 127 N. Y. S. 623; Hunter v. Montesana, 111 Pac. 571; Compton v. Revere, 179 Mass. 413.

2. r-: -: Caveat Emptor. Under the rule of caveat emptor which recognizes the parties to a sale as business antagonists at arm’s length, the purchaser has a right to buy at as low a price as his skill will secure and the vendor has the corresponding right to sell at the best price he can obtain. Neither has a right to the other’s best price, and therefore the representations of either that he has made his best offer cannot be said to be a representation of a material fact.

— lion. Guy D. Kirby, Judge. (1) There is no evidence to support the first count. Plaintiff’s evidence attempts to predicate a recovery upon an express contract, (a) The contract was not completed, (b) There is no evidence of the value of the labor and services of plaintiffs, (c) There is no evidence of the reasonable valne of materials. (d) Plaintiffs performed no service for defendants. (e) Plaintiffs cannot sne upon a quantum meruit and recover on special contract.

<p>CRIMINAL LAW: Appeal Not Perfected: Judgment on Record. The accused, upon conviction in trial court, after motion for new trial, filed affidavit for appeal and same was granted. Leave was obtained' to file hill of exceptions, hut same was not filed and nothing more was done toward perfecting the appeal, the case being submitted on the record as certified by the clerk of the trial court. Held, to be the duty of the appellate court to examine the record and render judgment on same, the appeal presenting nothing to the appellate court but the record proper.</p>

División Number Two. — Hon. David- E. Blair, Judge. (1) Where an agent, without written authority, executes a written lease to lands for a term of more than one year, and his principal thereafter accepts rents, and the lessee is put in possession of the premises, the acceptance of rents by the principal constitutes a ratification, and the principal thereafter cannot invoke the Statute of Frauds to deny the authority pf his agent to execute such lease.

Division Number Two. — Hon. David E. Blair, Judge. (1) The court erred in refusing instruction K asked by defendant, and that error is not cured by instruction L given for defendant. They present two entirely different propositions.

Butler Circuit Court. — Son. J. G. Sheppard, Judge. (1) The court erred in refusing to give defendant’s declarations of law numbered 1, 2, 3, 4, 5, 6 and 8; when the insured failed to pay the semi-annual premium due on the 6th day of November, 1909, on said date, and failed to pay said premium for an additional sixty days after said date, then the policy of insurance sued upon was by its terms forfeited, and the plaintiff was only entitled to recover the sum tendered into…

— Hon. J. T. Moore, Judge. (1) At the time the conveyance was made to Ella M. Mellette, the consideration was paid by J. E. Mel-lette. Thus a resulting trust arose in his favor. Richardson v. Champion, 143 Mo. 538; Crawford v. Jones, 163 Mo. 577; Heil v. Heil, 184 Mo. 675; Kelley v. Johnson, 28 Mo. 249; Stevenson v. Haynes, 220 Mo. 199; Stevens v. Fitzpatrick, 218 Mo. 708.

<p>Appeal from Dade Circuit Court. — Hon. B. G. Thurman, Judge. ■</p>

— Ron. Joseph D. Perkins, Judge. (1) Sarah. E. Baker had only an inclioate right of dower in the property in controversy at the time of the execution of the lease involved herein, which interest could not be assigned, released or relinquished except by joining in a conveyance with her husband.

— IE an. J. G. Sheppard, Judge. (1) Deceased was clearly guilty of contributory negligence, under the facts disclosed by’this record; there was nothing to submit to .the jury and appellant’s peremptory instructions should have been given.

— Eon. Jas. E. Slover, Judge. (1) As the sale to defendant was made and possession of the property taken by it prior to the adjudication in bankruptcy, the finding of the court that the bill of sale was fraudulent as to all creditors was erroneous, and its judgment cannot stand. In re Cooperage & Lbr. Co., 180 Fed. 105; Davis v. Turner, 120 Fed. 605 ; Bank v. Bank, 136 V. S. 223; Carriage Co. v. Wells, 99 Mo. App. 641; Thompson v. Massey, 76 Mo. App. 197; Milling Co. v. Com.

<p>I. CONTRACTS: Indebitatus Assumpsit. Though there is a written contract, if it has been fully performed a party may sue in indebitatus assumpsit, the contract determining the rights of the parties.</p> <p>2. PLEADING: Motion to Elect: Motion to Make More Definite and Certain: Demurrer. By answering the defendant waives his objections set forth in a demurrer, save as to jurisdiction and that the petition does not state a cause of action. He also waives motions to make more definite and certain, or to elect.</p> <p>3. CONTRACTS: Interpretation by Parties. The interpretation which the parties themselves put upon a doubtful contract will he adopted by the court.</p> <p>i. COMPENSATION: Construction, of Contract. Where an advertising agency secured for a manufacturer of a cure for the tobacco habit, advertising in various papers and magazines throughout the country, under a contract which provided that it was to be secured “at the lowest rate quoted by said publications,” and that the agent should receive his compensation from the publishers, it was held, that the “lowest rate” meant the lowest rate obtainable by or quoted to advertisers themselves; but that when the advertisement was secured by ar agent, his commission could be deducted from that rate.</p>

— Hon. George W. Wanamaker, Judge. (1) An administrator can give tlie notice to sue under sections 11269 and 11270, R. S. Mo. 1909. 0’How-ell v. Kirk, 41 Mo. App. 523; Peters v. Linenschmidt, 58 Mo. 467; Cox v. Jefferson, 73 Mo. App. 412. (2) The notice given by McHargue was a sufficient notice under section 11269. Luper v. McGuire, 57 Mo. 360; Melcher v. Derkin, 44 Mo. 650; Queathan v. Woodmen of America, 148 Mo. App. 43.

<p>Appeal from Jackson Circuit Court. — Hon. W. 0. Thomas, Judge.</p>

— Hon. Nat. M. Shelton, Judge. (1) It is the duty of the receiving carrier to inspect all cars used hy it, and that a failure to inspect or to inspect properly was the cause of the injury; that the failure to make a thorough inspection interposes an independent agency which severs the casual connection between tbe campany first guilty of negligence and tbe burt.

— Hon. 0. A. Lucas, Judge. (1) The existence of a copartnership is largely a matter of intention to he gathered from the instrument evidencing the relation of the parties thereto, and their conduct thereunder. Torbert v. Jeffrey, 161 Mo. 654; Beller v. Murphy, 139 Mo. App. 663; Mingus v. Bank, 136 Mo. App. 407. (2) Participation in the profits of a business raises the presumption of a partnership. Sawyer v. Burris, 141 Mo. App. 117; Tam-blyn v. Scott, 111 Mo.' App. 50.

<p>Appeal from Bnclianan Circuit Court. — Hon. Thomas F. Ryan, Judge.</p>

— Hon. Walter A. Powell, Judge. Tlie court erred in refusing to give the peremptory instruction asked by defendant Kansas City at the close of plaintiff’s case and again at the close of the entire case. Hays v. Columbia, 141 S. W. 3; Gallagher v. Tipton, 133 Mo. App. 557; Ely v. St. Louis, 181 Mo. 729; Shippey v. Au Sable, 32 N. W. 741; Urquhart v. Ogdensburg, 91 N. Y. 67; Conlon v. St. Paul, 72 N. W. 1073; Young, v. Railroad, 93 Mo. App. 267.

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

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

— Hon. James E. Goodrich, Judge. The court erred in giving instruction 5 on behalf of the defendants, which instruction was a peremptory instruction to the jury to find for the defendants on the counterclaim. Printz v. Miller, 233 Mo. 47; Hayden v. G-rillo, 35 Mo. App. 647; Love v. Owens, 31 Mo, App. 510; Oerhart v. Peck, 42 Mo. App. 651; Chipley v. Leathe, 60 Mo. App. 20; Brauckman v. Leighton, 60 Mo. App. 42; Goldsberry v. Eades, 161 Mo. App. 8.

— Eon. Francis H. Trimble, Judge. (1) The law creates a presumption that property purchased during coverture is paid for with the husband’s means. Vrook v. Tull, 111 Mo. 283. (2) A voluntary conveyance is presumptively fraudulent as to existing creditors, and the burden is on the donee to establish the validity of such conveyance. Vande-venter v. Goss, 116 App. 316, 323.

— Hon. Walter A. Powell, Judge. (1) Oldham’s failure to pay Ms assessment in February, 1910, ipso facto suspended Mm from membership.’ Not being in good bealtb at the time of paying this assessment on March 21, his payment of it on that date did not reinstate Mm to membership, and he was not therefore a member of appellant on March 26, the day of his death. Burke v. A. O'. U. W., 136 Mo. App. 450; Smith v. W. O. W., 179 Mo. 119.

— Hon. Tinos. J. Seehorn, Judge. (1) Tbe representation made to plaintiff’s agent was in effect a representation to tbe plaintiff; it was made with reference to a sale and to induce a sale and therefore inures to the purchaser. Jackson Co. ex rel. v. Schmid, 141 Mo. App. 229; Tuckwell v. Lampert, 59 Mass. 23; Ward v. Borkenhagen, 50 Wis. 4591. (2) The contract was in law with the principal; and the fraud was practiced on her. Cramer v. Wright, 15 Ind. 278.

<p>1. NEGLIGENCE: Street Railways: Pleading: Special Allegations. Evidence of injuries, as a ground of action, wldeli are not charged in the petition, should not he admitted. Where the petition charged an injury to the foot, ankle, hip, leg and spinal cord, evidence of an attack of pneumonia is not proper.</p> <p>2. -: Evidence: Injuries: Pleading. Evidence of injuries other than those alleged should he confined to such as naturally, usually or ordinarily flow from those alleged; and it is improper to receive evidence if pneumonia under allegations of injury to the foot, ankle, leg, hip and spinal cord.</p> <p>3,-; Damages: Evidence. Where a plaintiff liad testified that her injury caused a loss of flesh and weight, it was held that defendant had a right to show that such loss was probably occasioned by plaintiff having recently had pneumonia, and that that disease did not result from an injury; and that this showing by defendant did not justify plaintiff in making pneumonia, which was not pleaded, a substantive ground of action upon which to base damages.</p>

<p>Appeal from Jackson Oircn.it Court. — Hon. Thos. J. Beehorn, Judge.</p>

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

— Ron. B. G. Thurman, Judge. (1) The husband’s home is the home of the wife, and it is her duty to follow, go with, or to him, where he resides. Messenger v. Messenger, 56 Mo. 329; Wilson v. Craig, 175 Mo. 405; Schuman v. Schuman, 93 Mo. App. 99. (2) Where the wife has means of her own no temporary alimony or suit money should he allowed her in a divorce suit. Penningroth v. Pen-ningroth, 71 Mo. App. 438; Lambert v. Lambert, 109 Mo. App. 19; Stark v. Stark, 115 Mo. App. 436.

— Son. Jas. H. Slover, Judge. The court erred in not declaring as a matter of law that under the pleadings and the evidence the plaintiff • was not entitled to recover. Sec. 8233, R. S. 1909; Rumsey v. Pieffer, 108 Mo. App. 486; MeLundie & Co. v. Mount, 145 Mo. App. 660; Lumber Co. v. Schuler, 49 Mo. App. 90; Allen v. Schorringhausen, Mo. App. 229; Merryman v. Buddecke, 242 Mo. 216; Michael v. Kennedy, 166 Mo. App. 462.

<p>1. STATUTE OF LIMITATIONS: Fraud. Sec. 1889, R. S. Mo. 190S, bars an action based on fraud in five years, unless the fraud is secret and is not known to plaintiff, being kept from him by some act or artifice of the defendant. In such case, if the discovery is made at any time within ten years, then plaintiff has five years from the date of discovery within which to bring ' his action.</p> <p>2. -:-: Evidence. Where tlie alleged representations complained of were as to the number of acres in a farm sold, and there is no evidence to show that plaintiff was prevented by defendant from ascertaining the true number of acres, hut that on the contrary the plaintiff has as good opportunity for knowing the acreage as the defendant, and lived on the farm for ten years and could have discovered the alleged shortage in area at any time by looking at his tax receipt, a delay of nearly thirteen years in bringing suit is fatal to the action.</p>

— Hon. Fred Lamb, Judge. (1) Plaintiff brings Ms suit under Sec. 3330, R. S. 1909, which is a penalty statute and must receive strict construction and apply only to suck cases as fall strictly within its provisions. It devolves on plaintiff to bring himself fully within the provisions of the statute before he can recover. Eddington v. Telegraph Co., 115 Mo. App. 93; Grant v. Telegraph Co., 154 Mo. App. 279; Rixke v. Telegraph Co., 96 Mo.

— Hon. W. K. Amide, Judge.. (1) The court erred in overruling defendants’ motion to strike from the records plaintiff’s second amended petition. It introduced a new and entirely different cause of action from that tried before the justice, contrary to and in violation of the statute. E. S. 1909, sec. 7585; Clark v. Smith, 39 Mo. 498; Hans-berger v. Railroad, 43 Mo. 196; Brashears v. Strock, 46 Mo. 221; Slaughter v. Davenport, 82 Mo.

<p>Appeal from Jackson Circuit Court. — Hon. W. 0. Thomas, Judge.</p> <p>(1) Tlae court erred in overruling the peremptory instructions. Warner v. Railroad, 178 Mo. 133; Decker v. Railroad, 149 Mo. App. 573; Moore v. Bail-_ road, 28 Mo. App. 622; Cash v. Wabash, 81 Mo. App. 109; Hance v. Express Co., 48 Mo. App. 179; Hance v. Express Co., 66 Mo. App. 486; Peterson y. Railroad, 102 N. W. 597. (2) The conrt erred in giving and refusing instructions. Clark v. Railroad, 138 Mo. App. 424; Decker y. Railroad, 149 Mo. App. 537; Marshall v. McKelvy, 55 Mo. App. 240; Gelvin. v- Railroad, 21 Mo. App. 280; Geist v. St. Louis, 185 Mo. 211; De-Steiger v. Railroad, 73 Mo.'33; Warner v. Railroad, 178 Mo. 133; Cash v. Railroad, 81 Mo. App. 109.</p> <p>(1) The court did not err in overruling the peremptory instructions of defendant. McCrary y. Railroad, 99 Mo. App. 518; McCrary v. Railroad, 109 Mo. App. 567; Sloop y. Railroad, 93 Mo. App. 605; Leonard v. Railroad, 54 Mo. App. 293; Hance v. Express Co., 48 Mo. App. 179; Hance v. Express Co., 66 Mo. App. 486; Cash v. Railroad, 81 Mo. App. 109; Libby v. Railroad, 137 Mo. App. 276; Faust v. Lee, 138 Mo. App. 722; Cunningham v. Railroad, 149 S. W. 1151. (2) There was no error in giving or refusing to give the instructions in this case. Hance v. Express Co., 66 Mo. App. 486; McCrary v. Railroad, 109 Mo. App. 567; Fruit &> Nut Co. v. Railroad, 163 Mo. App. 426; Cash v. Railroad, 81 Mo. App. 109; Cunningham v. Railroad, 167 Mo. App. 273, 149 S. W. 1151; Sloop v. Railroad, 93 Mo. App. 605. (3) ’ Plaintiff’s instruction 1 given by the court is the law as the petition is based upon failure to promptly transport, safely carry and deliver in good condition, and not upon specific negligence, as contended by appellant. Hance v. Express Co., 66 Mo. App. 490; Cunningham v. Railroad, 167 Mo. App. 273, 149 S. W. 1151.</p>

Appeal f’-om Grundy Circuit Court. — Hon. Geo. W. Wanamaker, Judge. (1) This being a penalty statute and highly penal, must be .strictly construed and nothing can he taken by intendment, but shall apply only to such cases as fall strictly and fully within its- provisions, and plaintiff must bring himself fully within the provisions of the statute in order to recover. Woods v. Telegraph Co., 59 Mo.. App. 236; Rixke v. Telegraph Co., 96 Mo.

— Eon. Wm. D. Bush, Judge. (1) Houses'of prostitution are public nuisances which the State or any private citizen suffering special injury may suppress by injunction. The authorities supporting this proposition of law are so numerous that we cite only a few of the best known cases. Sei-fert v. Dillon, 83 Neb. 322, 17 Am. & Eng. Ann. Cas. 1126, 19 L. R. A. (N. S.) 1018; Blagen v. Smith, 34 Ore. 394, 44 L. R, A. 522; Ingersoll v. Rosseau, 35 Wash. 92, 1 Am. & Eng. Ann.

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

— Eon. Nat. M. Shelton, Judge. (1) There is nothing in the testimony to show whether or not plaintiffs lost anything in this transaction. They were unable to state exactly the amount that they received or the amount of the freight paid, and as loss or probable or special profits are not subject to legal determination, there can be no recovery in this ease. Douglass v. Stevens, 18 Mo. 362; Telegraph Co. v. Hall, 124 U. S. 444; Reynolds v. Telegraph Co., 81 Mo.

<p>1. ADMINISTRATION: Administrator de Son Tort. There is no such thing in Missouri as an administrator de son tort.</p> <p>2.-: Credit for Debts Paid: Appointment of Administrator, Relation Back. Where, after the death of a person and before issuance of letters of administration upon his estate, a large sum of money belonging to said estate was taken charge of by another and expended in the payment of alleged debts of deceased, and afterwards letters were duly granted to person, bis subsequent appointment as administrator did not relate back to the time be first took charge of the assets, nor give validity to his acts prior to his appointment and qualification.</p> <p>3. -: Demands: Must be Allowed. Under Sec. 230, R. S. Mo. 1909, an administrator is not entitled to credit in his settlement for any debt paid by him which had not been allowed by the court according to law.</p> <p>4. -: Wills. On rehearing. Held by TRIMBLE, J., ELLISON, P. J. concurring in a separate opinion, that the above is the correct view of the statute in all cases, except where there is a will in which the executor is directed to pay all debts without having them allowed. Such was the case in Judson v. Bennett, 233 Mo. 607, and the general remarks there made touching the executor’s right to credit for sums paid out for debts ®.ot allowed apply only to the peculiar facts of that case, and do not abrogate the rule announced in the original opinion.</p> <p>Held, by JOHNSON, J., dissenting, that the case of Judson v. Bennett, applies to all cases, and being the latest expression of the Supreme Court’s views on the point in question, it must be followed. Held, further, that, as the majority opinion on rehearing is in conflict with the Judson case, the cause should be and is certified to the Supreme Court.</p>

<p>Appeal from Bncliaiian Circuit Court. — lion. Wm. D. Rusk, Judge.</p>

<p>1. SALES: Breach of Warranty: Non-liability of Seller. Where an engine is sold under a warranty that it will perform its - functions, and the seller’s agent properly installs the same, except that, under the direction of the buyer’s agent, he makes certain connections not contemplated or recommended by the seller, as a result of which the engine fails to perform its functions', the seller is not liable for breach of warranty.</p> <p>2.-;-: -: Principal and Agent: Authority of Agent: Sufficiency of Evidence. In an action on an account, where defendant filed a counterclaim asking for damages for breach of warranty of an engine purchased from plaintiff by defendant, the evidence tended to show that one B was employed by defendant to erect the factory in which the engine was placed and that he advised defendant concerning the character of engine that should be installed; that B caused a certain coil to be connected with the engine, which connection was not contemplated or recommended by plaintiff, and that the failure of the engine to perform its functions was due to this connection. Held', that the evidence was sufficient to warrant the jury’s finding that B had authority to represent defendant and to direct the making of the connection. Held, further, that there was sufficient evidence to warrant a finding for plaintiff on tbe counterclaim, on ‘ the theory that the failure of the engine to properly functionate was due to the connection made by defendant’s agent and not to defective material or poor workmanship.</p> <p>3. INSTRUCTIONS: Assumption of Facts: Sales. An instruction to find for plaintiff on defendant’s counterclaim for damages for breach of warranty of an engine purchased from and properly installed by plaintiff’s representative, except for certain defective connections made under directions of a certain person, if the jury found that such person had been employed by defendant to build and equip the factory in which the engine was to be installed and that such person, as agent of defendant, ordered the connection to be' made, and that the failure of the engine to operate properly was due to such connection being made, was not open to the objection that it assumed that he had such authority as agent for defendants.</p> <p>4. VERDICTS: Verdict on Claim and Counterclaim: Consistency: Sales. Where, in an action on an account containing several items, for the installation of an engine sold by plaintiff to defendants under a warranty, defendants admitted liability except for one item, which they claimed was occasioned by plaintiff’s breach of warranty, and plaintiff rested on such admission and introduced no evidence in support of the account, a finding for plaintiff for the amount of the account which defendants admitted was not inconsistent with a finding against defendants upon a separate counterclaim for breach of warranty, since the failure of the jury to return a verdict for plaintiff on the disputed item is attributable to the lack of evidence concerning it and not to a finding that plaintiff breached its warranty.</p> <p>5. APPELLATE PRACTICE: Instructions: Harmless Error. In an action on an open account, error in giving an instruction which authorized a verdict for plaintiff on certain disputed items concerning which plaintiff introduced no evidence whs harmless, where the jury did not find for plaintiff on such items.</p>

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) This case was submitted to the trial court, “sitting as a jury,” and a finding and judgment rendered upon conflicting evidence, on two principal contentions involved, that is: (a) That there never was any contract with the owner; (b) That the contract relied upon by plaintiff never became effective because never delivered. That judgment is conclusive upon this court. Parker v. Railroad, 154 Mo.

Louis City Circuit Court. — -Hon. J. Hugo Grimm, Judge. (1) A sale of land is the actual transfer of title •from grantor to grantee by appropriate instrument of conveyance. Ide v. Leiser, 10 Mont. 5., (2) A sale in the ordinary sense of the word is a transfer ot property for a fixed price in money or its- equivalént. Iowa v. McFarland, 110 U. S. 471.

Louis City Circuit Court. — Ron Rugo Muench, Judge. (1) Such words as “promptly” and “properly” and “mitigating” and “aggravating” require no definition. “We must accord the jury at least ordinary intelligence and understanding.” Kischman v. Scott, 166,Mo. 214, 228. (2) The words “promptly” and “properly” must not be taken alone.

<p>1. SALES: Stoppage in Transitu. A seller of goods does not have the right of stoppage in transitu if the consignee is solvent.</p> <p>2. COMMON CARRIERS: Bill of Lading: Prima Facie Title to Shipment: Diverting Shipment. Where a hill of lading shows a general consignment, and not to shipper’s order or with other reservation, it prima facie vests the legal title to the shipment in the consignee; and if, in such case, the consignee he in fact the owner, the carrier would he liable to him for diverting the shipment while in transit without his consent.</p> <p>3. -: Refusal to Divert Shipment: Liability of Carrier. A common carrier is not liable for refusing, on demand of the shipper, to divert a shipment consigned' generally to a consignee, where he does not furnish the carrier with reasonable -'roof that he is the true owner of the shipment and that it is free from any lien or claim in favor of the consignee named in the bill of lading, or reasonable opportunity is not afforded the carrier to ascertain the facts.</p> <p>4. -: -: -: Sufficiency of Evidence. In an action by a shipper against a common carrier for refusing, on his demand, to divert a shipment consigned generally to a consignee, held that the evidence failed to show that plaintiff furnished defendant with proof, at the time the demand was made, that he was the true owner of the shipment and that it was free from any lien or claim in favor of the consignee, or that defendant was afforded a reasonable opportunity to ascertain the facts, and hence it is held that plaintiff was not entitled to recover.</p>

Louis City Circuit Court. — Hon. Hugo Muench, Judge. Cause certified to Supreme ’Court. (1) If tlie consideration of a contract, either in whole or in part, be illegal, this defeats the entire contract, and it is immaterial whether the contract itself discloses such illegality, or it be established by evidence aliunde. Downing v. Ringer, 7 Mo. 585; Sumner v. Summers, 54 Mo. 340; Sprague v. Rooney, 104 Mo. 349'; Hagerty v. Ice Mfg.