Volume 171 — Missouri Appeal Reports

— ■ Eon. David E. Eby, Judge. (1) A deed containing covenants of general warranty carries with it all the title which the grantor has at the time; and any subsequently-acquired title likewise passes under such a deed, and inures to the benefit of the grantee. Woods v. Smith, 193 Mo. 484; Cockrill v. Bane, 94 Mo. 444; Railroad v. Smith, 170 Mo. 327; Hickman v. Dill, 39 Mo.

<p>Appeal from St. Louis City Circuit Court. — Eon. James E. Withrow, Judge*</p>

Louis City Circuit Court. — Mon. Charles Claflin Allen, Judge. (1) On a demurrer to plaintiff’s evidence, every reasonable intendment in favor of plaintiff, to be drawn from the evidence adduced, must be indulged in Ms favor. Hamman v. Coal & Coke Co., 156 Mo. 232; Fassbinder v. Railroad, 126- Mo.

' Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge. As the watchman had died in the meantime, plaintiff was disqualified as a witness and should not have been allowed to testify as to Ms transactions and altercations and trouble with tbe watchman. Darks v. Grocer Co., 146 Mo. App. 254; Carroll v. Eailroad, 157 Mo. App. 247; Lieber v. Lieber, 239 Mo. 1; Anderson v. Eailroad, 120 S. W. 298. The plaintiff was a competent witness.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) When injury or death, is caused by coming in contact with such a wire, it is conclusively presumed that the insulation of the wire was defective, and the doctrine of res ipsa loquitur applies. Yon Trebra v. Gas Light Co., 209 Mo. 659; Geisman v. Edison EL Co., 173 Mo. 678; Eyan v. Eailroad, 190 Mo. 621; Young v. Oil Co., 185 Mo. 634'; Gannon v. Gas Light Co., 145 Mo. 502; Dolan v. Same, 145 Mo. 550; 15 Cyc. 471.

<p>OPINION OF SPRINGFIELD COURT OF APPEALS ADOPTED. The opinion of the Springfield Court of Appeals in this case (146' Mo. APP- 247) is adopted as the opinion of the court.</p>

Louis Court of Criminal Correction. —Hon. Wilson A. Taylor, Judge. Tlie charge in tlie information is void because it attempts to embrace two offenses in one count and does not contain sufficient words of the statutes covering either offense to properly inform appellant of the charge or charges against him! Constitution of Mo., art. 2, sec. 22; State v. Hayward, 83 Mo. 304; State v. Barbee, 136 Mo. 440.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The petition fails to state a cause of action. (2) The deed of trust as charged in the petition contains an express covenant and agreement that the mortgager shall pay all taxes! lawfully assessed against the mortgaged premises. Rnmsey v. Railroad, 154 Mo. 215; Cannock v. Jones, 3 Exch. 233; Montford v. Cadog'an, 19 Yes. Jr. 635 ; Bower v. Hodges, 13 C. B. 765.

— Hon. G. D. Stewart, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. The existence of Egyptian Levee Co. being pleaded and it being sued, admits its existence, and its existence is presumed to continue, and if still existing, it can have no successor, its liabilities are its own and cannot be saddled upon another and different public corporation. Allegations of status and capacity are material and necessary.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. The condition of the premises — that is, the unguarded condition of the pit — was not the proximate cause of plaintiff’s injury and he was therefore not entitled to recover.. The proximate cause was the jerking of the pump, which was a mere accident. Jackson v. Elevator Co., 209 Mo. 506; Huston v. Railroad, 129 Mo. App. 586; Uoransson v. Manufacturing Co., 186 Mo. 300; Foley v. McMahon, 114 Mo.

<p>1. APPELLATE PRACTICE: Former Decision: Law of Case. The decision rendered in a case by an appellate court is the law of the case on a subsequent appeal.</p> <p>2.-: Effect of Assuming Position in Litigation: Estoppel. Where, throughout long-pending. litigation, a party sought to sustain himself as curator, a subsequent claim by him, in an action on his bond, that he was only chargeable, if at all, as an administrator, came too late.</p> <p>3. GUARDIAN AND WARD: Action on Curator’s Bond: Form of Judgment. A judgment, in an action on a curator’s bond, that the bond be declared forfeited and that judgment be rendered against the principal and the sureties, naming them, in the amount of the penalty of the bond, and that a special execution issue in favor of plaintiff and against defendant for the amount of damages awarded by the verdict and for costs, substantially complies with the statute. ■</p>

Genevieve Circuit Court. — Hon. Peter H. Huele, Judge. (1) The demurrers to the evidence should have been sustained, (a) Defendant’s evidence tending to show the true source of the fire to be other than an engine requires that plaintiff’s circumstantial evidence be of the strongest character. Brooks v. Railroad, 98 Mo. 106; Torpey v. Railroad, 64 Mo.. 382; Peck v. Railroad, 31 Mo. App. 123; Peffer v. Railroad, 98 Mo. App. 292; Gibbs v. Railroad, 104 Mo.

<p>Appeal from St. Louis City Circuit Court. — lion. Charles Claflin Allen, Judge.</p>

<p>Appeal from Cape Girardeau Court of Common Pleas. —Hon. B. G. Banney, Judge.</p>

Louis City Circuit Court. — Eon. Charles Claflin Allen, Judge. Although the answer alleges defendant- had been authorized since 1902 to do business in Missouri as a foreign fraternal beneficiary society, that allegation is specifically denied in the reply. The record is barren of any evidence that defendant had been thus admitted in Missouri. Under these circumstances, defendant-cannot claim any of the rights or immunities of a fraternal order.

— Hon. David, H. E'by, Judge. Defendant, if liable at all, could only be held liable for the natural proximate and probable consequence of its failure to furnish plaintiff a suitable car for the shipment of said mules; and it could not be held liable for any damages resulting from the alleged breach of its contract which could not have been reasonably foreseen or expected. Commission Co. v. Railroad, 113 Mo. App. 544; Hyatt v. Railroad, 19 Mo.

<p>Original Proceeding Tby Prohibition.</p>

Original PToeeeding by Mandamus. Statemert. — Tbe relator presented to one’of tbe judges of our court, in vacation and at cbambe'rs, a petition for a writ of mandamus against tbe Hon. George C. Hitcbcock, one of tbe judges of tbe circuit court of the city of St. Louis.

— Hon. John T. Moore, Judge. (1) As a general rule, all property which, a deceased person owned at the time of his death is property subject to administration. 18 Cyc. 58. (2) Personal assets are not necessarily restricted to personalty which deceased owned in his lifetime, but embraces, also the proper and just earnings, incomes, accretions and accessions, of and to those assets, even after,the death of decedent. 18 Cyc. 174.

— Hon. Joseph D. Perlcins, Judge. (1) The demurrer should have been overruled, because: First. The petition alleges that the deceased was, at the time of his death, above 21 years of age, that he left surviving him neither wife, minor child or minor children, natural born or adopted, the appointment of plaintiff as administrator, and that the deceased lost his life on account of certain specified acts of negligence of defendant. Second.

— Eon. B. G. Thurman, Judge. (1) The presumption is that the employer has discharged his duty in providing suitable appliances for his work and in keeping them in that condition. Glass-cock v. Dry Goods Co., 106 Mo. App. 663-4. (2) In the absence of affirmative proof of negligence the simple fact of an injury occurring is to be rather attributable presumptively to misadventure, inevitable fate or other causes for which- the employer is not liable.

— Eon. W. N. Evans, Judge. (1) Injunction will lie to prevent the opening of a road on a void, order. Carpenter v. Grisham, 59 Mo. 247; Jones v. Zink, 65 Mo. App. 409; Spurlock v. Dor-nan, 182 Mo. 242. (2) Every jurisdictional fact must appear on the face of the record. Spurlock v. Dornan, 182 Mo. 242; Jones v. Zink, 65 Mo. App. 409. (3) Proceeding is void when record fails to show that commissioners were not of kin, not interested in the matter and are resident freeholders.

— Hon. G. H. Skinker, Judge. (1) Where there is no evidence tending to show that the testatrix had any knowledge of the contents of the will as drawn, and where it does not dispose of her property as she had desired and had directed it will be held that it was not the will of the testatrix. Bradford v. Blossom, 207 Mo. 177.

— Eon. W. N. Evans, Judge. (1) The party cannot raise the defense of the Statute of Frauds where he has not pleaded it. Scliarrff v. Klein, 27 Mo. App. 549; Hobart v. Murry, 54 Mo. App. 249: Hackworth v. Zeitinger, 48'Mo. App. 32. (2) The objection to the contract that it is within the Statute of Frauds cannot be raised by demurrer. Sherwood v. Sexton, 63 Mo. 78.

— Eon. Davicl E. Blair, Judge. (1) A wife is a competent witness to protests made by ber to ber husband against excessive sexual intercourse. Maget v. Maget, 85 Mo. App. 6. (2) Excessive sexual intercourse amounts to cruelty entitling a wife to a divorce when it impairs ber health. Máget v. Maget, 85 Mo. App. 6; Gardner v. Gardner, 58 S. W. 342; Mahew v. Mahew, 23 Atl. 966; Walsh v. Walsh, 61 Mich. 554; Melvin v. Melvin, 42 Am. R. 605; Cole v. Cole, 23 Iowa, 440.

— Hon. W. N. Evans, Judge. (1) The court did not err in refusing defendant’s demurrer to the evidence at the close of the evidence offered by plaintiff.

— Hon, Joseph D. Perkins, Judge. (1) If contributory negligence appears from plaintiff’s own testimony, defendants may take advantage of it, regardless of whether they pleaded it. Kile v. Light & Power Co., 149 Mo. App. 359; Cane v. Wintersteen, 144 Mo. App. 5; Borden v. Sedalia, 161 Mo. App. 638; Benton v. Philadelphia, 198 Pa. St. 396, 48 Atl. 267.

— Eon. J. G. Sheppard, Judge. (1) The court erred, as a matter of law, in refusing to give plaintiffs’ declaration of law No. 5; the agreement had between W. D;. Roberts and the defendant Abernathy,, with reference to this lumber, did not in law constitute a sale of said lumber and, therefore, the defendant never did acquire title to the lumber in controversy. Johnson, etc., Co., v. Bank, 116 Mo. 558; Thompson & Co. v. Massey, 76 Mo.

— Hon. C. H. Skinker, Judge. (1) The records of the county court relating to the establishment of the road are regular and, in due form in all respects. R. S. 1909, sec. 10447-10453; Fitzmaurice v. Turney, 214 Mo. 630. (2) Where the record is silent, as to jurisdictional recitals the proper antecedent steps will be presumed. Hadley v. Bernero, 103 Mo. App. 549; State v. Batey, 166 Mo. 561.

— Eon. W. N. Evans, Judge. (1) The cashier of a bank cannot act as trustee and foreclose the equity of redemption. Thacker v. Tracy, 8 Mo. App. 315. (2) Nor can the president of a bank act as trustee and by foreclosure proceedings destroy the right of the maker to redeem. The law will not permit the officer of a bank to act as trustee in any case wherein the bank is creditor and the maker of the deed is the debtor. Landrum v., Bank, 63 Mo. 48.

<p>QUO WARRANTO: Forfeiture of Corporation’s Charter. Information was filed against respondent corporation to forfeit its franchise, alleging a perversion and misuse of said franchise. Respondent’s answer denied the allegations. A commissioner was appointed, the evidence was taken and the commissioner made his report. Thereafter respondent filed application to withdraw its answer and at the same time filed written consent to the forfeiture of its charter. The application is allowed, the answer withdrawn and the charter is forfeited.</p>

Chariton Circuit Court. — Hon. Fred Lamb, Judge. ■ The conrt erred in refusing to sustain defendant Prince’s demurrer to the original hill of interpleader. The bill itself sets up all the facts necessary to establish said defendant’s lien against the fund in the inter-pleader’s hands, and the court should have sustained the demurrer and ordered the fund paid to defendant Prince. R. S. 1909, sec. 964-65; United Railways Co. v. O’Connor, 153 Mo.

<p>1. SALES: Part of Apples on Trees: Price: Segregation: Title: Loss. Where one person sold to another all of the apples in his orchard which would grade first and second grade, at a certain price per barrel, the purchaser to pick and grade them in the future, and the apples were frozen before they were picked and separated, it was held that the title had not passed and the loss was the seller’s.</p> <p>2. -: -: -: Appropriation: Future Measurement. One may sell all the apples in his orchard at a certain price per barrel, to be picked in the future, and it will be an appropriation of them by the buyer and the property passes to him in praesenti. The fact that the amount of the purchase money is to be ' ascertained by future measurement does not prevent an immediate passing of the title.</p> <p>3. -: -: -: Separation: Setting Apart: Title. Where personal property is a part of a general mass or lot and such part is sold, the title does' not .pass until the part has been separated and set apart for the purchaser.</p>

— lion. 0. A. Lucas, Judge. (1) The instruction followed the petition and was not too general. Moore v. Railroad, 136 Mo. App. 214; Buckman v. Railroad, 100 Mo. App. 34.

— Hon. John M. Williams, Judge. (1) The trial court proceeded throughout on the theory that defendant did not stand in loco parentis to the plaintiff. This was an error and instruction Nos. “a” and 1 should not have been given at the request of the plaintiff. A person assuming the parental character and discharging parental duties is a person in loco parentis. 19 Am. & Eng. Ency. Law (2 Ed.), p. 518.

— lion. W. K. Amide, Jtidge. One in possession of land, under a verbal or written contract of purchase, cannot subject to a mechanic’s lien either the building or the land, to the prejudice of the legal owner, even under a statute which contemplates a remedy, either against the building or the land.

Appeal' from Platte Circuit Court. — Eon. A. D. Burns, Judge. (1) Under the pleadings and undisputed evidence the verdict was for the right party, and, whether the instructions were right or wrong, the verdict for defendant should stand.

— Hon. D. H. Harris, Judge. (1) The petition fails to state a cause of action for the reason that it fails to allege all of the necessary conditions precedent to a valid special assessment. Irvin v. Devors, 65 Mo. 625; St. Louis v. Rankin, 96 Mo. 497; Joplin v. Hollingshead, 123 Mo. App. 602. (2) The tax bill is void because the preliminary resolution failed to describe or specify the gutter work. City of Bacon, 144 Mo. App. 476 ; Coulter v. Const. Co., 131 Mo.

— Hon. Thomas J. Seehorn, Judge. (1) The court erred in not giving appellant’s instruction, directing the jury to find the issues in his favor. 1 Chitty on Contracts, 89; Mill Co. v. Blundage, 25 Mo. App. 268; Houck v. Bridwell, 28 Mo. App. 644-649; Smith v. Taylor, 20 Mo. App. 166; Sublett v. McLin, 29 Tenn. 181; 2 Greenleaf on Evidence, sec. 104; 9 Cyc. 690; Robert v. Wilson, 34 Mich. 139.

— Hon. B. G. Thurman, Judge. (1) In order to defeat a court of equity of jurisdiction on account of there being an adequate or concurrent remedy at law, the remedy at law must be as full, complete and adequate as that in equity. Bar-rington v. Ryan, 88 Mo. App. 85; Hanson v. Neal, 215 Mo. 256. (2) The frauds complained of in this case are sufficient to justify a court of equity in setting aside this judgment.

— Hon. Arch B. Davis, Judge. (1) • A wife is not entitled to relief in an action against lier husband for maintenance, when she has left Mm without Ms consent or fanlt, and under circumstances which do not amount to an abandonment by Mm. Droege v. Droege, 52 Mo. App. 84.

<p>1. PRACTICE, APPELLATE: Abstract: Record Proper. An abstract of the record proper should show the case was tried, a' judgment was rendered, and for what it was and for whom it was.</p> <p>2. -: Motion for New Trial: Term: Four Days: Court: Statute. The abstract of thg record proper failed to show the filing of a motion for new trial at the term of trial, or within four days. This was a fatal defect. It did show that the motion was filed “in the time allowed by the court,” but the statute fixes the time and such statement does not show a proper filing.</p> <p>3.-: -: -: Record: Bill of Exceptions. Showing matters belonging to the record proper, in the bill of exceptions will' not cure the defect in the abstract. A hill of exceptions is allowed for showing matters of exception; and inserting things therein not belonging there, but which belong to the record proper, will not cure the failure to enter them in the latter place.</p> <p>Í. -:-: Rule: Bill of Exceptions: Filing. Notwithstanding the rule making unnecessary an abstract of record entries evidencing leave to file, or filing of, a bill of exceptions, it is yet necessary that the abstract of record proper should state that the bill was filed.</p>

— Hon. W. 0. Thomas, Judge. (1) In the absence of any limitation fixed by statute, au appointing officer may remove his appointees at pleasure. Throop, Public Officers, secs. 354, 361; 2 McQuillin, Muu. Oorp., sec. 558; State ex rel. Kane ■ v. Johnson, 123 Mo. 43, 50. Plaintiff’s appointing officer having the power to finally remove plaintiff at pleasure, he had the power to temporarily remove him, especially when there were not sufficient funds to keep him in service.

- — Hon. Arch B. Davis, Judge. (1) This being? a penalty statute, it must be strictly construed and plaintiff must bring himself clearly -within its provisions without guessing or without inference or intendment before he can recover. Cowan v. Telegraph Co., 149 Mo. App'. 407; Edrington v. Telegraph Co., 115 Mo. App. 98; Rixke v. Telegraph Co.; 96 Mo. App. 410; Grant v. Telegraph Co., 154 Mo. App. 279; Wagner v. Telegraph Co., 152 Mo. App. 369; Moore v. Telegraph Co., 164 Mo.

— Hon. Jolm M. , Williams, Judge. If one of the parties to the marriage contract absents himself or herself without a reasonable cause for the space of one year, it is legal and just grounds for divorce. R. S. 1909, sec. 2370. It is the duty of the wife to live with, her husband and abide his fortunes in sickness and health, in poverty and riches and make his will her will where it is not in conflict with the law of Cod.

— Hon. Arch B. Davis, Judge. (1) The record in this case is wholly insufficient to support the verdict because the information fails to allege the county and State where the abandonment of the prosecutrix took place. There is no venue stated in the margin as required by section 5107, Statutes of 1909. The words “State of Missouri, county of Daviess, ss.,” must appear in the margin to cure the defect of failure to allege the venue in the body of the information.

<p>NEGOTIABLE INSTRUMENTS: Judgment: Merger: Interest: Future Actions. Where an indorsee and owner of a negotiable promissory noté brings an action thereon against the maker, it becomes merged in the judgment and though all the interest due on the note is knowingly not claimed, no separate and independent action can be thereafter maintained on such note for the interest.</p>

<p>Error to Jackson Circuit Court. — Eon. Jacob L. Lorie, Special Judge.</p>

<p>Appeal from Cole Circuit Court. — Son. John M. Williams, Judge.</p>

<p>1. FRATERNAL BENEFICIARY ASSOCIATIONS: Warranties: Fraudulent Representations. The question of false and fraudulent representations in securing an insurance policy, in an action to recover the amount of the death claim, is one of fact to he determined by the jury.</p> <p>2. -: Foreign Society: Evidence. Where a fraternal beneficiary society incorporated in another State fails to prove that, at the time the policy, upon which suit is brought, was issued, it was authorized to do business in this State as a fraternal beneficiary society, the laws pertaining to old line life insurance govern the action.</p>

<p>1. CRIMES AND PUNISHMENTS: Billiard and Pool Tables: Kelly Pool. If a pool table is used for gambling purposes, it is a gaming table within the meaning of the statute (Secs. 4752 and 4753, R. S. 1909), whether the game played upon it be Kelly pool, poker or craps.</p> <p>2. -: Owners of Pool Hall: Permitting Gambling. It is immaterial that the defendants did not gamble themselves. If they allowed the pool tables to be used by their customers in playing games of chance for money or property, they violated the statute (See. 4753, R. S. 1909).</p> <p>3.-: Information: Language of Statute. An information is good if it charges an offense in the language of the statute.</p> <p>4. -: Misconduct of Prosecuting Attorney: Failure to Rebuke. When counsel go outside of the record in their arguments to juries and indulge in assertions of facts that are not relevant to the issues and which are calculated to cause the jury to disregard the real merits of the case, the failure of the trial court to give proper heed to objections of opposing counsel, will constitute reversible error.</p>

<p>Error to Jackson Circuit Court. — Hon. James H. Slover, Judge.</p>

— Hon. Thomas J. Seehorn, Judge. (1) The court erred in sustaining’ defendant’s motion for change of venue. Eudaley v. Railroad, 186 Mo., 403; Guy v. Railroad, 197 Mo. 181; Priddy v. Raicé, 201 Mo. (2) The court erred in sustaining defendant’s motion to dismiss plaintiff’s appeal. Conrad Co. v. Spinks, 38 Mo. App. 309; Machine Co. v. Watson, 43 Mo. App. 338; Parks v. Taiman, 113 Mo. App. 17; Express Co. v. Street Railway, 126 Mo. App. 471; Wagner v. Gray, 145 Mo.

— -Hon. Porter B. Godard, Special Judge. (1) Plaintiff’s own case showed that plaintiff agreed or guaranteed that the instrument should be entirely satisfactory to defendant, and that within a few days defendant notified plaintiff that.it was not satisfactory; defendant testified to.the same thing. Therefore the court should at the close of plaintiff’s evidence, or, at all events, at the close of the case, have directed a verdict for defendant on plaintiff’s petition.

— Eon. J. G. Sheppard, Judge. (1) Respondent having declared upon an oral contract for the exchange of land for land and merchandise of the value of thirty dollars or more, the contract must he shown to he fully executed or it is within the Statute of Frauds. R. S. 1909, sec. 2783; R. S. 1909, sec. 2784; Beckmann v. Mephan 97 Mo. App. 161; 147 Mo. App. 85; 141 Mo. App. 421; Lydiek v. Holland, 83 Mo. 703.

— Hon. Guy D. Kirby, Judge. (1) The notice must be in writing specifying the judgment appealed from, may he served on the agent or attorney of appelee, if he appears to the suit before the justice. . . . and, if he did not then it must he served on the appellee R. S. 1909, sec. 7582.

<p>Appeal from Taney County Circuit Court. — Hon. John T. Moore, Judge.</p>

— Son. David E. Blair, Judge, (1) Defendant’s peremptory instruction to find for the defendant should have been given and in refusing to give it the court committed error.

' — Eon. Carr McNatt, Judge. (1) Tlie defendants in their printed próspectus in the most positive manner, made many false and fraudulent representations, about the corporation and its capital stock. They made them without knowing whether they were true or false and recklessly indifferent as to the injury they might cause. Plaintiff relying on them purchased $5000 worth of the preferred stock at par; it was worthless when purchased and he lost his money.

— Hon. J. G. Sheppard, Judge. * (1) Tire burden was upon the respondent to establish by a preponderance of all tbe evidence, three facts: First. That Foister was inexperienced, unskilful, habitually careless and incompetent to operate the derrick and engine with reasonable safety to respondent and others employed around same. Second. That appellant either knew of such incapacity, or by the exercise of ordinary care would have known of it. Third.

— Ron. Guy D. Kirby, Judge. (1) The court erred in refusing to give defendant’s requested instruction in the nature of a demurrer to the evidence offered at the close of plaintiff’s evidence in chief, and renewed at the close of all the evidence in the case, because plaintiff did not prove that any notice had been given to defendant by the State factory inspector or assistant inspector to pnt guards over the cogwheels on the rattler, which notice is required by Sec. 7842, R.…

Louis City Cireiiit Court. — Eon. George E. Shields, Judge. (1) There could be no loss by plaintiff because she was living with her husband, keeping house, doing no other work; her services belonged to him and if incapacitated the loss was his, not hers; no insurable interest in the plaintiff was shown. Wallis v. West-port, 82 Mo. App. 527; Elliott v. K. C., 210 Mo. 576; Perrigo v. St. Louis, 185 Mo. 285.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The court erred in overruling the defendant’s demurrer to the evidence. The same rule is applicable in this case as that which has been applied in suits by section hands, in suits for personal injuries, and in suits by widows of section hands for damages occasioned by their death by the operation of trains by railroad companies.

Louis City Circuit Court. — Eon. Edwin W. Lee, Judge. (1) Plaintiff baying sued for tbe “performance of tbe contract,” a recovery cannot be bad for a breacb of. tbe contract of employment. Cosgrove v. Leonard, etc., Co., 175 Mo. 100. (2) “Exbibit 3” is a complete variance from respondent’s alleged instructions, and from tbe terms of tbe proposed trade, wbicb plaintiff alleges be accomplished, as stated in tbe petition.

Louis City Circuit Court. — Hon. Leo 8. Rassieur, Judge. (1) Respondent is directly responsible for and chargeable with Ms own negligence in selecting a dangerous roadway on wbicli to walk, namely; one prepared for and only intended for use by automobiles and other vehicles, when he- could and should have used the safe stairway prepared specially for use by those on foot. If he had used the stairway where he was absolutely safe, the automobile could not have struck him..

— Eon. Charles * D. Stewart, Judge. The petition declares upon an express written contract executed by William Saling, and alleged to have been ratified by his codefendant, Martha A. Saling, by which defendants were to pay as commission the sum of one thousand dollars, and afterwards alleged to have been modified by parol by being reduced exactly two hundred and fifty dollars, leaving’ the amount seven hundred and fifty dollars sought to be recovered.

— How. James D. Barnett, Judge. (1) The element of fraud is not in the case. There was no intention upon the part of Judge Reid to misrepresent a fact or conceal the truth about the deed of trust in order to induce the defendants to buy the land. Freeland v. Williamson, 220 Mo. 231; Keeney v. McVoy, 206 Mo. 58; Harrison v. McReynolds, 183 Mo. 549.

Louis City Circuit Court. — Eon. W. B. Homer, Judge. A surety lias the right to stand upon the letter of his obligation and his liability cannot he extended by construction or implication. Life Ins. Co. v. McDear-mon, 133 Mo. App. 671; State ex rel. v. Delaney, 122 Mo. App. 231; Martin v. Whites, 128 Mo. App. 117; Eeissaus v. Whites, 128 Mo. App. 135; Mansom v. Coleman, 86 Mo. App. 18; State ex rel. y. Weeks, 92 Mo. App. 359; State ex rel. v. Hendricks, 88 Mo.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) Where a statement for a mechanic’s lien is defective, by reason (as in this case) of an error in describing the real property, the lienor may, within the statutory period, file another statement for lien upon the same account with a correct description of the property remedying the original defect. Plaintiff had a right to file its second statement for lien of August 10, 1912, amending the description of the first.

<p>Appeal from Jefferson Circuit Court.- — Ron. H. B. Irwin, Special Judge.</p>

Circuit Court. — Hon. W. 8. G. Walker} Judge. The only damage alleged by tbe respondent in bis petition is for tbe rents and profits and costs recovered by John A. Hope against bim in tbe ejectment suit and expense respondent was put to in moving and being out of tbe possession of tbe premises too late to obtain other lands to cultivate for tbe year 1910,-yet there was not a scintilla of evidence going to show at what expense be was put in moving and any damages resulting by…

— IIon. W. S. G. Walker, Judge. (1) There was no evidence upon which to render a judgment for the plaintiff under the pleadings and the evidence in this cause, and the judgment was for the wrong party. Bohle v. King-Brinsmade Merc. Co., 114 Mo. App. 439; Morris v. Kansas City, 117 Mo. App. 298; Schmitte v. Transit Co., 108 Mo. App. 186.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) Where the facts, upon which a decision in the trial court is based, are uncontradicted, their legal effect is a question of law, and the appellate court may inquire into these facts to determine whether or not they warrant the decision rendered by the trial court. 2 Ency. of Pleading & Practice, 405; Breen v. Pair Association, 40 Mo.

<p>Appeal f rom St. Louis City Circuit Court. — Ron„ Daniel D. Fisher, Judge.</p>

— Hon. James D. 'Barnett, Judge. (1) Although Dudley’s negligence cannot be imputed to plaintiff (Becke v. Railway, 102 Mo. 544; Stotler v. Railroad, 200 Mo. 107), yet as Dudley saw the train the negligence of failure to sound the statutory crossing signals was immaterial negligence and the sole producing cause of the injury was Dudley’s wilfulness in attempting to cross. Mockowik v. Railroad, 196 Mo. 570; Murray v. Transit Co., 176 Mo. 183-; Heintz v. Transit Co., 115 Mo.

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

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Defendant Gould was a bona fide bolder for value, (a) An extension of time, even for a single day, is a valuable consideration. Loewen v. Forsee, 137 Mo. 29; Allen v. Harris, 79 Mo. App. 490; Deere v. Marsden, 88 Mo. 512; Smith v. Norman, 19 Ohio St. 148; Powers v. Woolfolk, 111 S. W. 1187.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence, because defendant’s negligence as charged (a failure to warn) was not the proximate cause of deceased’s injuries; it conclusively appearing that deceased knew of the presence and approach of the cars which it is alleged struck and killed him. Davies v. Railroad, 136 S. W. 720.