Volume 172 — Missouri Appeal Reports

Louis City Circuit Court. — Eon. Hugo Muench, Judge. (1) The verdict is excessive by $2.18. This calls for a remittitur and puts the cost of appeal upon respondent. Cameron v. McAnno, 72 App. 348; Puckett. v. Railroad, 25 Mo. App. 650. (2) There was no agreement to allow rebates of interest. 9 Cyc. 276.

<p>1. APPELLATE PRACTICE: Review: Granting Continuance. While the granting of a continuance is a matter within the discretion of the trial court, yet such discretion must be exercised reasonably, and it is open to the appellate court to determine whether or not that was done.</p> <p>2. CONTINUANCES: Diligence. In a proceeding brought by a widower, to whom letters of administration on his deceased wife’s estate were refused, pursuant to Sec. 10, ft. S. 1909, defendant moved for a continuance on the ground that a motion was pending before the probate court to vacate the order of refusal to grant letters. This application did not aver that defendant had been diligent, and the proof offered in support of it failed to show any diligence on its part. Held, that, inasmuch as diligence on' the part of defendant was not shown, the court did not err in denying the application.</p> <p>3. APPELLATE PRACTICE: Binding Effect of Theory at Trial. Where defendant stood upon the denial of his application for a continuance and refused to introduce any evidence on the merits, the appellate court, upon determining that no error was • committed in such denial, will not reverse the judgment for plaintiff and remand the cause, in order to allow defendant to introduce its defense; and especially is this true where no claim that it had a meritorious defense was set up in either the trial court or the appellate court.</p> <p>4. WITNESSES: Competency of Attorney: Value of Services.' An attorney who renders professional services is a competent witness as to their value.</p> <p>6. APPELLATE PRACTICE: Vexatious Appeal: Penalty. Where an appeal is without any merit hut the verdict of the jury awarding damages and attorney’s fees under the provisions of Sec. 7068, R. S. 1909, is sufficient to cover the case, an award of ten per cent damages as for a vexatious appeal will not he made.</p>

<p>1. APPELLATE PRACTICE: Conclusiveness of Verdict. A verdict which is supported by substantial evidence is conclusive, on appeal.</p> <p>:2. BREACH OF MARRIAGE PROMISE: Sufficiency of Evidence. In an action for a breach of promise of marriage, evidence held sufficient to warrant the submission of the case to the jury.</p> <p>3. APPELLATE PRACTICE: Review: Motion for New Trial:* Sufficiency of Assignments. One of the grounds stated in a motion for new trial was, that the damages awarded by the verdict were exorbitant and grossly excessive. One of the errors assigned in the appellate court was, that the damages awarded were not only against the law and the evidence but were the result of sympathy, passion and prejudice. Held, that while the assignment did not follow the language of the motion for a new trial, nevertheless, in so far as it attacked the verdict as the result of passion and prejudice, it substantially put in issue the amount of the verdict.</p> <p>4. BREACH OF MARRIAGE PROMISE: Damages: Elements of Damages. In an action for breach of promise of marriage, defendant’s wealth and ability to pay may be taken into consideration in estimating the damages.</p> <p>:5. -: -: -: Instructions. In an action for breach of promise of marriage, the jury were properly instructed that, if they found for plaintiff, they could consider, in determining .the damages, her mortification, injured feelings and affections, wounded, pride, length of engagement, depth of her devotion, lack of independent means, defendant’s wealth and consequent loss of the marriage to plaintiff, and her altered social position caused by defendant’s conduct.</p> <p>6. -: -: -- — : Excessiveness of Verdict. In an action for damages in the sum of $20,000 for breach of contract of marriage, where it was shown that defendant was worth over $70,000 while plaintiff was practically without means, 7iel& that a verdict in favor of plaintiff for $4000 was not excessive and did not indicate prejudice, passion or corruption on the part of the jury.</p>

Ragland, Judge. (1) On tbe assumption .there was an implied contract to pay for board, which appellant denies, the canse of action therefor accrued to Charles Lambert alone, and he must bring his separate action therefor. Nelson v. Railroad, 113 Mo. App. 659; Clark v. Zane, 148 S. W. 968; 15 Ency. PI. & Prac., pp. 539, 580, 733.

<p>Appeal from Audrain Circuit Court. — Hon. James D. Barnett, Judge.</p> <p>Under the state of the evidence in this case the fifth instruction given for respondent was error, very-prejudicial to the appellant, in that it was a direct comment upon the evidence given by the respondent and favorable to him. "Weil v. Schwortz, 21 Mo. App. 372; Jones v. Jones, 57 Mo. 138; State v. Smith, 53 Mo. 267; State v. Sivils, 105 Mo. 530; Oil Well v. Wolfe, 127 Mo. 626; Hoffman v. Hoffman, 126 Mo. 493; Railroad v. Stock Yards, 120 Mo. 565; Barr v. City of Kansas, 105 Mo. 557; State v. Reed, 137 Mo. 138; Lucks v. Bank, .148 Mo. App. 381; James v. Insurance Co., 135 Mo. App. 251; Gage v. Mears, 107 Mo. App. 147; Spohn v. Railroad, 87 Mo. 81; Chapel v. Allen, 38 Mo. 221; Bank v. Currie, 44 Mo. 91; Compton v. Baker, 34 Mo. App. 140; Swink v. Huthony, 96 Mo. App. 426; Baker v. Com. Co., 61 Mo. App. 149.</p> <p>It is always proper for the court to declare to the jury the legal effect of evidence. Stewart v. Spark-man, 75 Mo. App. 106; Nicholson v. Golden, 27 Mo. App. 154; Tyler v. Hall, 106 Mo. 323; Clark v. Cordry, 69 Mo. App. 15; Flemming v. Railroad, 89 Mo. App. 138; Gordon v. Burris, 153 Mo. 234; Bancher v. Gregory, 9 Mo. App. 105; Semple v. Crouch, 8 Mo. App. 593; Dunbar v. Briggs, 18 Neb. 94; 38 Cyclopedia of Law & Procedure, p. 1678.</p>

1. LANDLORD AND TENANT: Termination of Tenancy: Liability of Tenant for Rent. Where a lessor ousts his lessee from possession of the premises, under the Landlord and Tenant Act, for nonpayment of rent, he thereby terminates the relation of landlord and tenant between himself and the tenant, and loses all right of recovery, as rental, for any portion of the unespired term subsequent to the ouster. 2. -: -: —:-.

— Hon Charles D. Stewart,. Judge. Even though the defendant was negligent, the evidence shows such negligence on the part of deceased contributing directly to his death as to bar a recovery in the case and defendant’s demurrer to the evidence should have been sustained. Laun v. Railroad, 217 Mo. 563; Burge v. Railroad, 148 S. W. 925; Newton v. Railroad, 152 Mo.

— Hon. James D. Barnett, Judge. (1) After timber is severed from the soil it is no longer real estate but personal property, and an action for trespass will not lie for its removal. Annuity and Trust Co. v. Mangold, 94 Mo. App. 125; Land Co. v. Watson, 125 Mo. App. 554. (2) Possession of land is sufficient to maintain an action of trespass, but the defendant may dispute plaintiff’s possessory right by showing that the title and possessory right are vested in himself.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The'trial court erred in rendering a decree for defendants and dismissing plaintiff’s bill because it was clearly proved that the lots in question were subject, to restrictive covenants which defendants had violated and were intending to continue to violate. Sanders v. Dickson, lié Mo. App. 229; Godfrey v. Hampton, 148 Mo. App. 157; Semple v. Schwarz, 130 Mo. App. 65; Ketchen v. Hawley, 150 Mo.

— lion. James D. Barnett, Judge. (1) The trial court erred in refusing to instruct the jury that the defendant retained possession of the goods an unreasonable time after receiving them and before returning them to the appellants, and the court should have so instructed the jury. Rubber Co. v. Rubber Co., 74 Mo. App. 266; Bransen v. Tanner, 77 Mo. 489; Parker v. Marquis, 64 Mo. 38; Hart v. Handlin, 43 Mo. 171; Johnson v. Mfg. Co., 20 Mo. App. 100; Tower v. Panly, 51 Mo.

<p>rl. JURISDICTION: Supreme Court: More Than $7500 Involved: Appellate Practice. A suit by a foreign guardian of an insane ¡person to remove a guardian appointed by a probate court in ".this State and to require him to turn over to such foreign guardian $10,000 in his hands belonging to the insane person, is a suit in which the amount in dispute, exclusive of costs, • .exceeds $7500, and hence a Court of Appeals would not have jurisdiction of the appeal.</p> <p>’2. -: -: -:--. Neither silence nor consent can confer jurisdiction on an appellate court over the subject-matter, and hence where the amount in dispute in a cause appealed to a Court of Appeals exceeds $7500, exclusive of costs, the court will, of its own motion, take notice that it does not possess jurisdiction and will transfer the cause to the Supreme ' Court.</p>

— Hon. William T. Ragland, Judge. It was the duty of the appellant^to allege and prove that the release was not only fraudulently obtained but that the check was tendered back before suit brought. Carroll v. United Ry. Co., 157 Mo. App. 247; Kingman-Moore Implement Co. v. Ernest S. Ellis, 125 Mo. App. 692.

— How. W. O. Thomas, Judge. (1) When the materials are furnished for the same improvement in installments and at intervals, but the parties intend them to be included in one account in settlement, the entire account will be treated as one continuous and connected transaction, and the lien limitation will begin to run from the last item of it. Darlington Lumber Co. v. Harris, 107 Mo. App. 148; Page v. Bettes, 17 Mo. App. 375; Pullis v. Hoffman, 28 Mo.

— Hon. O. A. Lucas, Judge. (1) Plaintiffs amended petition does not state a ■cause of action. An investigation of the common law fails to reveal a true analogy between the right of the wife to the society of her husband and the right known as consortium, which formed the gist of the action at common law by the husband for injuries to his wife. Guy v. Levesey, Cro. J'ac. 501; Hyde v. Seyssor, Cro. ■Car. 538; Marri v. Railroad, 84 Conn. 9, 78 Alt. 582.

— Son. Arch. B. Davis, Judge. (1) The law of Missouri does not authorize a foreign administrator to take charge of and administer the estate of a resident and thereby defeat claims and debts residents of Missouri may haye against the estate., Miller v. Hoover, 121 Mo. App. 574. (2) In Missouri damages recovered in a case of this sort are subject to the payment of intestate’s debts. In Iowa they constitute a trust fund for certain .beneficiaries.

— Hon'. G. W. Wcmamaker, Judge. (1) Words not in themselves actionable cannot be rendered so by an innuendo without a prefatory averment of extrinsic facts which makes them slanderous. Townsend on SI. & Lib. (4 Ed.) 566; Church v. Bridgman, 6 Mo. 196; McManus v. Jackson, 28 Mo. 56; Powell v. Crawford, 107 Mo. 595; Cook v. Pulitzer Pub. Co., 241 Mo. 326. (2) An innuendo may not introduce new matter or enlarge the natural meaning of words.

— Ron. W. D. Rush, Judge. (1) The order removing this cause to the Federal court not having been set aside by the trial court, it had no jurisdiction to try the case. Herryford v. Ins. Co., 42 Mo. 153; Stanley v. Railroad, 62 Mo. 511. (2) The petition and bond for removal of the defendant railroad company being in form and the case being removable, the trial court lost jurisdiction when said, petition and bond were filed.

— Hon. W. O. Thomas, Judge. (1) This cause must be reversed for error of the trial court in permitting defendant to try and submit to the jury an issue wholly different from that made by the pleadings.. Nanman v. Obérle, 90 Mo.' 666; Davis v. Foreman, 229 Mo. 57; Bristol v. Braid-wood, 28 Mich. 191; Judd v. Walker, 215 Mo. 324-30; Campbell v. Hoff, 129 Mo. 324; Adams v. Barber, 157 Mo. App. 395; Lindsay y. Gold Mines Co., 148 S. W. 849.

1. NEGLIGENCE: Personal Injuries: Elevators. The plaintiff sued to recover damages for personal injuries sustained by the negligence of the defendants in operating its freight elevator. The plaintiff worked as an errand girl in one of the five departments of the defendants’ wholesale millinery store and factory in Kansas City. The passenger electric elevator was out of repair, and the errand girls were instructed to use the freight elevator.

<p>1. SEWER: Ordinance: Specifications. Wliere an ordinance for the construction of a sewer which hy the city charter is required to specify the dimensions, material and character of the work, sets out on its face such dimensions, material and the character of the work, together with all necessary specifications, then it is unnecessary that a duplicate of such specifications be referred to as on file with the city engineer.</p> <p>2. -: -: -: -: -. A city charter required ordinances for the construction of sewers to ordain the dimensions, material and character of the sewer. An ordinance was passed naming the dimensions and material and referring to the specifications prepared for the construction of the sewer. But, in fact, the specifications were not in existence when the ordinance was passed and were not made out and approved by the board of public works until ten days afterwards. They contained many substantial requirements not set out in the ordinance. And it was held that the proceedings were void and tax bills issued for the work were invalid.</p>

— Hon. Arch. B. Davis, Judge. (1) The defendant was the agent of plaintiff for the purpose of delivering the deed and collecting the • purchase money. After she received the purchase money as such agent, she cannot maintain a bill of interpleader against her principal and compel him to interplead with others for his money. 2 Ency.

— Hon. W. O. Thomas, Judge. (1) Respondents made no proof of any equities against the payee, since the only evidence offered was hearsay or legal conclusion, or variance from the answer admitted over appellant’s objection. Barnes v. McMullens, 78 Mo. 269, 274;- Gullett v. Hoy & Orton, 15 Mo. 400; Cutler v. Cook, 77 Mo. 391; Crawford v. Johnson, 87 Mo.

— Hon. Jas. E. Goodrich, Judge, (1) In coasting on this street plaintiff was directly violating the ordinances of Kansas City and was assisting in maintaining a common law nuisance; as such he was a trespasser and defendant was not bound to anticipate his presence and owed him only the duty of not injuring him after actual knowledge of his presence.

— Hon. J. H. Slover, Judge. The work in which plaintiff was engaged was of the most dangerous character and the law required care commensurate with that danger to keep the runway free from obstructions and required defendant not to order plaintiff to draw the truck over and along same without first ascertaining its condition, and for neglecting so to do defendant is liable. Van Werth v. Cracker Co., 155 Mo.

— Hon. D. H. Harris, Judge. (1) The court should have sustained appellants’ plea of the ninety day Statute of Limitation relating to mechanic’s liens. Taking judgment on the second day after filing petition plaintiff in effect directed clerk not to issue writs. Sec. 8228, R. S. 1909; White v. Read, 60 ,Mo. App. 380; McCormick v. Clopton, 150 Mo. App. 129,136; Forrey v. Holmes, 65 Mo. App. 114; Lumber Co. v. Wright, 114 Mo. 326, 331; McC-rath v. Railroad, 128 Mo. 1.

— lion. Francis H. Trimble7 Judge. (1) The Kansas statute'pleaded in the plaintiffs’ petition refers to physical appliances and not to the manner of using these appliances, and there being neither averment nor proof that any of the appliances required by the statute were not maintained, this action must fail.

1. INSURANCE: Release of Claim: Want of Consideration:Evidence. Where in a suit on a policy of insurance the answer-admits the policy, the death of the assured and the identity of the beneficiary, but sets up a release in bar, and the reply pleads want of consideration, duress and fraud in obtaining-the release, such reply is a direct attack on the release and evidence contradicting its recitals as to the existence of certain facts is admissible.

— Eon. A. D. Burns, Judge. (1) The justice of the peace had jurisdiction of the action and the subject-matter thereof (Sec. 7398 and 7399 R. S. 1909) and an appeal therefrom complies ■with the provisions of Section 7568 R. S. 1909. The defendant being a resident of every conntv within the State under the provisions of the general laws, must comply with all incidents for appeal that residents are required to do.

— Hon. Arch B. Davis, Judge. (1) A citizen in good faith and without malice, under circumstances strongly tending to show guilt, instituting a criminal prosecution, should not be mulcted in damages because afterwards, upon a full investigation, the suspicious circumstances are explained, and the innocence of the party accused made apparent.

— Hon. Arch. B. Davis, Judge. (1) Section 3330 above referred to is a penalty statute and by tbe numerous decisions of tbe appellate courts of this State, as well as the courts of other… Held: by the Arkansas court, to be intentional • on the part of the agent and a total disregard of his .duty. Te! Co. v. Davis, 41 Ark. 79.

— Hon. Jos. A. Guthrie, Judge. (1) On the entire evidence, plaintiff is not entitled to recover and the humanitarian doctrine is not applicable to this case. Eailroad v. Backs, 50 S. Eu (Va.) 257; Grout v. Eailroad, 125 Mo. App. 526; Wilkinson v. Eailroad, 124 S. W. 546; Davis v. Eailroad, 134 S. W. 718; Murphy V. Eailroad, 228 Mo. 56; Trigg v. Eailroad, 215 Mo. 521; Ayres v. Eailroad, 190 Mo. 286.

— Ron. Arch. B. Davis, Judge. (1) The court erred in overruling the demurrer to the evidence tendered by the defendant. Plaintiff must have a general or special property in the goods taken and the right to the immediate and exclusive possession thereof. TJpham v. Allen, 73 Mo. App. 228; Gray v. Parker, 38 Mo. 165; Sntton v. Railroad, 159 Mo. App. 685; Barnes v. Plessner, 137 Mo. App. 571;. Shantz v. Shriner, 150 S. W. 727.

— Hon. A. O. Lucas, Judge. (1) The court erred in overruling defendant’s demurrer at the close of plaintiff’s evidence. Worth v. Insurance-Co., 61 Mo. App. 586-587; Hester v. Fidelity So Casualty Co., 69 Mo. App. 186; Insurance Co. v. Roger, 119 111. 185. (2) Our courts have uniformly held that instructions should not he given unless supported by substantial evidence.

— Hon. E. E. Porterfield, Judge. (1) A verdict must not be ambiguous, as in tbis case, but must be definite and certain as to parties and issues; and the judgment must follow and conform to the verdict, which is the basis and the only basis of the judgment. Newton v. Eailroad, canse No. 11486, decided by Kansas City Court of Appeals on Feb. 3, 1913; Cattell v. Publishing Co., 88 Mo. 356; Haumueller v. Ackermann, 130 Mo.

— Eon. Jas. E. Goodrich, Judge. The lessor re-entered and took the premises from the lessee and declared the lease forfeited and void about six months before the time provided in the lease for making the improvements had expired.

— Hon. Jas. E. Goodrich, Judge. The place where plaintiff was injured being a public street in Kansas City, Missouri, plaintiff was not a trespasser by being on defendant’s tracks on said street and it was the duty of defendant’s servants to be on the look out for pedestrians and vehicles thereon at the time plaintiff was injured, and it was not incumbent upon plaintiff to prove the fact that said street was in the habit of being used by the public at or about the hour…

— Hon. Jas. H. Slover, Judge. (1) The declaration of deceased as to the cause of his injury was competent. Missouri cases rejecting declarations of employees who perpetrated the injury, made after the event, holding that they are neither admissions of the principal nor res gestae. Price v. Thornton, 10 Mo.

— Eon. Jas. E. Slover, Judge. (1) There was no testimony justifying the judgment for defendants on the counterclaim. There is no right of recovery for the voluntary payment of taxes: Couch v. Kansas City, 127 Mo. 436; Walker v. St. Louis, 15 Mo. 563; Page & Jones on “Taxation by Assessment,” secs. 1479, 1480; Schell City v. Rumsey Mfg. Co., 39 Mo. App. 264. (2) The tax bills were valid, the work -was really reconstruction of a payment and the proceedings were valid.

— Hon. D. H. Harris, Judge. (1) Th.e court should have sustained the peremptory instruction offered at the close of plaintiff’s evidence’ in chief and at the close of all the evidence. Gann y. Railroad, 65 Mo. App. 65. (2) The court erred in excluding evidence. Fountain v. Railroad, 114 Mo. App. 676. (1) The trial court correctly overruled defendant’s peremptory instructions.

— Hon. D. H. Harris, Judge. (1) The demurrer offered at the close of all the evidence should have been sustained. There was no evidence that the defendant was guilty of the crime charged. It was the duty of the'court to determine as a matter of law that the evidence did not sustain the charge in the indictment. 12 Cyc. 177; 1 Wharton on Criminal Law (8 Ed.), secs. 174-6; 1 Bouviers Law Dictionary (15 Ed.), 205; 1 Centary Dictionary, 371; State v. Young, 140 S. W. 873.

Circuit Court. — Eon. Fred Lamb, Judge. The court erred in directing a verdict for defend.■auts. Whether or not the strip of land in controversy had been dedicated to the public for road purposes, •or whether it had become a part of the road by user, ■was a question of fact for the determination of the .jury. Benton v. City of St. Louis, 217 Mo. 687; Moore w. Hawk, 57 Mo. App. 495; State v. Hood, 143 Mo.

— Hon. G. W. Wanamaker, Judge. (1) A conviction in cases of either incest or rape may be bad upon the uncorroborated evidence of the prosecutrix, but when the evidence of sucb prosecutrix is of a contradictory nature, or when applied to the admitted facts in the case, her testimony is not convincing, but leaves the mind of the court clouded with doubts, she must be corroborated, or the judgment cannot be sustained.

— Hon, O. 8. Hill, Special Judge. (1) Since the contract between the parties was in writing and identified a particular machine, and since there was no charge of fraud or mistake, the parol evidence offered by respondent tending to Vary the terms of the contract was inadmissible. Dexter v. MacDonald, 196 Mo. 373; Textbook Co. v. Lewis, 130 Mo. App. 158; Plumb v. Cooper, 121 Mo. 668; Morgan v. Porter, 103 Mo. 140; State v. Hostow, 98 Mo. 358; Ins. Co. v. Wolfson, 124 Mo.

— Hon. Hermann Brumback, Judge. (1) Taking up the contentions in their inverse order for convenience, we find that the eighth amendment has been held by the United States Supreme Court not to apply to State but only to national legislation. Pervear v. Massachusetts, 5 Wall. 475, 18 L. Ed. 608; Brown v. New Jersey, 175 U. S. 172, 44 L. Ed. 119. (2) Plaintiffs’ second contention is also untenable.

— Hon. William D. Rush, Judge. (1) The original debt being unpaid and there being no defense to the claim, the plaintiff should have judgment. Winsted Bank v. Webb, 39 N. Y. 325; Ger-wig v. Sitterly, 56 N. Y. 215; Russell v. Nelson, 99 N. Y. 119. (2) Even if a recovery could not be had on thé note in this proceeding, the court will give judgment according to the facts, and to avoid circuity. Moore v. Cross, 19 N. Y. 227.

Arch B. Davis, Judge. (1) The action of forcible entry and unlawful detainer under our statute is a special statute proceeding, summary in its nature, and the law conferring jurisdiction on justices of the peace must be strictly pursued in the method of procedure prescribed by it or the jurisdiction will fail to attach, and the proceeding will be coram, non judice and void.

— Eon. Arch. B. Davis, Judge. (1) That the respondent as agent of appellant because of having violated appellant’s instructions is bound to make the appellant whole and place him in as good.position as he was before respondent had violated his instructions. Marshall v. Ferguson, 101 Mo. App. 653, 94 Mo. App. 175. (1) If it be found that defendant was the agent of plaintiff, then plaintiff cannot recover from defendant in this case for exceeding his authority.

— Eon. Walter A Powell, Judge. (1) The burden is upon tbe plaintiff to show that the condition causing the injury was such that a reasonably careful test, that is to say, the test ordinarily employed in the business, would have disclosed it. Howard v. Eailroad, 173 Mo. 524; Eowden v. Daniell, 151 Mo. App. 15; Anderson v. Coal & Mining Co., 138 Mo.

— Hon. John M. Williams, Judge. (1) The court erred in submitting this case to the jury, because the article complained of on its face is clearly not libelous, and no innuendo can make it so. This is true because it was undisputed that the facts respecting the sheriff’s absence from the inquest are correctly stated in the article; and this statement itself discloses that the negligent conduct of the sheriff referred to was not criminal under any statute of this State.

— Hon. Jas. H. Slover, Judge. Plaintiff was guilty of suck contributory negligence as should bar a recovery as a matter of law.

Thos. J.. Seehorn, Judge. (1) Resolution No.- 306, under which, the tax bill was issued was insufficient to inform the public of the nature and kind of pavement which was proposed. There is no reference in the resolution to any specifications.

— Hon. Thos. J. Seehorn, Judge. (1) Error was committed when defendant’s appeal from justice court was dismissed. Was the appeal from justice court allowed? The court committed error in holding that it was not. See. 7912, R. S. 1909; sec. 7579, R. S. 1909; Drake v. Gorrell, 127 Mo. App. 636; Bader v. Jones, 119 Mo. App. 685; Lewellyn v. Lewellyn, 87 Mo. App. 9.

— Hon. Jas. H. Slover, Judge. (1) A new corporation which, absorbs the assets •of an old corporation, assumes- the liabilities of the latter. Bertholdt v. Land & Lumber Co., 91 Mo, App. 233. (2) The assets of a corporation are in the eye of equity a trust fund in which creditors have a right superior to stockholders as such. Corporate debts must be paid before shareholders may share in the corpus of the corporate estate. Barrie v. United Railways Co., 138 Mo.

— Hon. W. 0-Thomas, Judge. (1) The court erred by permitting Doctor Harrington to answer hypothetical questions, which contained elements which should have been excluded, -and omitted elements which should have been included. Marshall v. McKelvy, 55 Mo. App. 245; Mammerberg. v. Street Railway, 62 Mo.

H. Slover, Judge. (1) In the absence of contradictory proof a materialman, in order to maintain a mechanic’s lien, is . not obliged to show, except in a general way, that his material was used in the house. Lumber Co. v. Harris, 107 Mo. App. 151; Lumber Co. v. Greffet, 154 Mo. App. 39; Eice & Floyd v. Hodge Brothers, 26 Kan. 170.

— Hon. C. A. Calvird, Judge. (1) No recovery for services in tbe assessment, case in wbicb appellant was allowed two hundred dollars should have been allowed. There was admittedly no special employment of the plaintiff by defendants, nor directions from defendants to plaintiff to perform this service. The services were of no benefit to the estate, but a positive detriment in costs and expenses. Nichols v. Reyburn, 55 Mo. App. 5; State ex rel. v. Walsh, 67 Mo.

— Hon. O. A. Lúeas, Judge. (1) This is a suit at law, and the appellant is entitled to a jury to determine all the issues as to all the parties. Harrison v. Doyle, 147 S. W. 504; State ex rel. v. Evans, 176 Mo. 314; Fithian v. Monk, 43 Mo. 517; Riley v. McCord, 24 Mo. 265. (2) That this is a case at law in which the defendant is entitled to a jury has been determined so many times that it is not an open question. Harrison v. Doyle, 147 S. W. 504; State ex rel.

— Hon. James D. Barnett, Judge. (1) The appellant had full authority to hold the land under the lease in question. Constitution of Missouri, art. 12, sec. 7; See. 3443, R. S. 1909; See. 2990, R. S. 1909; Aschenbroedel Club'v. Finlay, 53 Mo. App. 256. (2) Even if appellant had no right to hold the land, respondents could not raise the question, because the State only can do so. Respondents are in pari delicto.

<p>Appeal from Lincoln Circuit Court. — Hon. James D. Barnett, Judge!</p>

— Hon. W. S. C. Walker, Judge. (1) The demurrer to the evidence at the close 'of plaintiff’s case should have been sustained; and the peremptory instruction asked by defendant at the close •of all the evidence should have been given, (a) Because there was no proof that sparks or coals of fire were thrown out by defendant’s locomotive engine.

<p>Appeal from Dunklin Circuit. Court. — Hon. W. S. G. Walker, Judge.</p>

. Appeal from Marion Circuit Court. — Hm. William T. ' Ragland, Judge. (1) The court erred in sustaining the plaintiff’s motion for a new trial. It was sustained on the fourth ground stated in the motion. The court took the view that there was no evidence from which the jury could .find that the plaintiff had been supported by the deceased during the time of the rendition of the serv- ' ices.

— Son. James D. Barnett, Judge. (1) The court erred in giving instructions numbered 4 and 7 at the request of the plaintiff. The vice of these instructions is that they permit plaintiff to recover against defendant, Henry Ostmann, Sr., not only for injuries inflicted by him, upon the plaintiff, but also for injuries inflicted by William Ostmann. This is not the law, unless there was evidence of their acting in concert. Schafer v. Ostmann, 148 Mo.

—Hon. Robert G. Ranney, Judge. (1) Partnership is the sole issue and strict proof thereof is not required of a creditor prevented by the alleged partner from showing the written agreement, all presumptions then being in support of the allegation of partnership. Block v. Price, 24 Mo. App. 14: Pomeroy v. Benton, 77 Mo. 64; Wigmore on Ev. Pár., 278; 30 Cyc. 412; 16 Cyc. 1058.

— Hon. E. M. Bearing, Judge. (1) All sales by an agent appointed generally to •sell must be for a consideration in money and such agent cannot bind Ms principal by receiving payment in bonds, notes or other paper. 1 Am. & Eng. Ency. •of Law, p. 1003; Brown v. Smith, 67 N. Car. 245; Buck-waiter v. Craig, 55 Mo. 71; Wheeler & Wilson v. Givan, 65 Mo. 94.

Louis City Circuit Court. — Ron. Chas. Claflin Allen, Judge. (1) The appeal herein was properly taken from the justice’s court in pursuance to Secs. 7568, 7569, 7570 et seq., E. S. 1909. Nothing in said sections requires appellant to pay any filing fee in the circuit court, nor is there any other statute requiring the'payment of a filing fee of two dollars.

Audrain Circuit Court. — Eon. James D. Barnett, Judge. (1) The court erred m refusing to instruct a verdict for the defendant at the close of the evidence for the plaintiffs and also at the close of all the evidence, (a) There was no proof that the foreman’s order was negligent, (b) The proof was that Gentry did not obey the foreman’s order but acted voluntarily sometime afterward and acted under totally different circumstances. (c) Gentry’s negligence bars a recovery.

Louis City Circuit Court. — Eon. JEngo Grimm., Judge. The court erred in granting plaintiff a new trial because there is no proof of the averments of negligence contained in the petition. G-ibler v. Railroad, 148. Mo. App. 475; Evens v. Railroad, 222 Mo. 435; Orcutt v. Century Bldg., 201 Mo. 424. The court erred in sustaining demurrer offered by defendant at the end of plaintiff’s evidence, and instructed the jury to find for defendant. Standard, etc.,.

— Hon, Charles B. Faris, Judge. (1) The court erred in construing the contract and in excluding evidence relevant thereto. Greenlief on Evidence (16 Ed.), sec. 288, 277, 278, 280; 295a; 7 Cyc. 582; 9 Cyc. 588, 578, 582, 583, 587, 588, 590; Mc-Manus v. Gregory, 16 Mo. App. 375. (2) The court erred in excluding evidence as to the defects constituting a breach of the guaranty. Buckley v. Kansas City, 95 Mo. App. 188; Cogen v. Railroad, 101 Mo.

<p>The opinion of the Springfield Court of Appeals in this case (144 Mo. App. 707) is adopted as the opinion of the court.</p>

<p>Appeal from St.- Louis City Circuit Court. — Ron. J. Rugo Grimm, Judge.</p> <p>(1) Plaintiff’s instruction number 2 was improper. Bradner v. Powder Co., 115 Mo. App. 114'; Light & Heat Co. v. Dowd, 47 Mo. App. '439; Woodward v. Donnell, 146 Mo. App. 119; Yeates v. Ballentine, 56 Mo. 530; Fleishman v. Miller, 38 Mo. App. 177; Austin v. Keating, 21 Mo. App. 30; Hernán v. Improvement Co., 58 Mo. App. 480; Miller v. Gillik, 66 Mo. App. 506; Clapper v. Mendall, 96 Mo. App. 40; .The Brabo, 33 Fed. 884; Mabrey v. Gravel Road Co., 92 Mo. App. 596; Wyatt v. Herring, 90 Mich. 58; Ahern v. Boyce, 19 Mo. App. 556; Foundry & Machine Co. v. Goodwin Mfg. Co., 100 Mo. App. 420. (2) The court erred in refusing to give instruction number B requested by the defendant to the effect that plaintiff could recover only a nominal amount. Light & Heat Co. v. Dowd, 47 Mo. App. 439, and cases cited above under point 1. (3) The court erred in giving instruction number H requested by the defendant. Light & Heat Co. v. Dowd, 47 Mo. App. 439; Yeates v. Bailentine, 56 Mo. 530, and cases cited above under point 1. (4) The court erred in refusing to give instruction number 1 requested by defendant. Light & Heat Co. v. Dowd, 47 Mo. App. 439; Yeates v. Ballentine, 56 Mo. 530, and cases cited above under point 1. (5) The court erred in giving instruction number 1, of its own motion. Light & Heat Co. v. Dowd, 47 Mo. App. 439; Yeates v. Ballentine, 56 Mo. 530; Pleischman v. Miller, 38 Mo. App. 177; Austin v. Keating, 21 Mo. App. 30; Heman v. Improvement Co., 58 Mo. App. 480; Miller v. Gillik, 66 Mo. App. 500. (6) The court erred in giving instruction number 4 of its own motion. Light & Heat Co. v. Dowd, 47 Mo. App. 439; Yeates v. Ballentine, 56 Mo. 530; Clapper v. Mendall, 96 Mo. App. 40; Bradner v. Powder Co., 115 Mo. App. 114; and cases cited under point 1. (7) the verdict was excessive.</p> <p>(1) Defendant’s failure to notify plaintiff and offer to return the screens within a reasonable time after delivery amounts to a qualified acceptance, and defendant hereby became liable for their reasonable value. Gaus v. Magee, 42 Mo. App. 314; Johnson v. Agricultural Co., 20 Mo. App. 102; Brannon v. Turner, 77 Mo. 489. (2) The contract price furnishes the prima facie measure of plaintiff’s recovery. Rude v. Mitchell, 97 Mo. 370; Moore v. Gaus & Sons, Mfg. Co., 113 Mo. 108; Williams v. Railroad, 112 Mo. 494; Iron v. Halverson, 48 Mo. App. 391; Redman v. Adams, 165 Mo. 70; Brannon v. Turner, 77 Mo. 495; Roth v. Wire Co., 94 Mo. App. 269-70; 35 Cyc. 370-71; Dan-forth v. Crookshanks, 68 Mo. App. 311. (3) Plaintiff having proved the delivery and acceptance of the screens, and thereby having made out a prima facie case entitling it to a recovery of the contract price, the onus was on the defendant by evidence to reduce the plaintiff’s prima facie measure of recovery. Bran-non v. Turner, 77 Mo. 495; Roth v. Wire Co., 94 Mo. App. 269; Fairbanks v. Mfg. Co., 105 Mo. App. 654; Calhoun v. Paule, 26 Mo. App. 283; 35 Cyc. 565-6; Benjamin on Sales (5 Ed.) 1007-8; Dean v. Ritter, 18 Mo. 182'; Webb v. Coonce, 11 Mo. 9; Pond v. Wyman, Iff Mo. 175; Nearns v. Harbert, 25 Mo. 352; Steubey v. Gebhart, 41 Mo. 519; Mills v. Boot & Shoe Co., 26 Mo. App. 61; Koenigkraemer v. Glass Co., 24 Mo. App. 124; Boland v. Quarry Co., 127 Mo. 520; Steadley v. Stuckey, 113 Mo. App. 582; Brown v. Welden, 27 Mo. App. 265. (4) Defendant has not pleaded or claimed any special damages for alleged failure of plaintiff to perform this contract. Decker v. School District, 101 Mo. App. 115.</p>

Louis City Circuit Court. — Hon. TEB. Homer, Judge. (1) The demurrer to the evidence should have-been sustained because the evidence wholly fails to-show any negligence whatever on the part of the defendant.

— Ron. B. R. Dyer, Judge. A garnishment by attachment will only lie where a creditor may maintain a suit to recover a debt. Hardware Co. v. Lang, 54 Mo. App. 147. So where both parties reside in a county or counties other than that in which the property is found jurisdiction is vested only in the circuit court of the county in which the property is found. Dennis v. Bailey, 104 Mo. App. 638.

<p>1. FRATERNAL BENEFICIARY ASSOCIATIONS: Forfeiture of Benefit Certificate: By-laws Construed. A by-law o£ a fraternal beneficiary association provided that, if a member engage in a proscribed occupation, he “shall thereby and thereupon stand suspended” and shall forfeit his rights in the order and in the benefit certificate. Another by-law enjoined the duty upon an officer of the subordinate lodge to announce the suspension in the lodge, and enjoined the duty upon the secretary to record such suspension, with the date of the suspension and of the announcement, and to immediately notify the supreme secretary. Held, that the first by-law was self-executing,- and that . - the act of a member in engaging in a proscribed occupation operated ipso facto to render the certificate void, where his death resulted from following such occupation; held, further, that the second by-law merely provided for making a record of the suspension, and did not require affirmative action to be taken by the subordinate lodge to suspend the member and avoid the certificate.</p> <p>2. --:--: Validity of By-laws. It is competent íot a fraternal beneficiary association and its members to provide in the contract of insurance and by-laws what occupations shall not be pursued, under penalty of forfeiture of the certificate.</p> <p>3. -; -; Waiver. The payment of an assessment by a member of a fraternal beneficiary association, whose certificate was ipso facto forfeited by his engaging in a proscribed occupation, was not a waiver where the association, at the time of the payment, did not know of his being so engaged.</p> <p>4. -:--:--. A forfeiture of a certificate issued by a fraternal beneficiary society, based on the member’s engaging in a proscribed occupation, is not waived by conduct of the secretary of a local lodge, who had no knowledge of the forfeiture at the time.</p> <p>5. -: -: -: Authority of Local Officers. The acts of a mere ministerial officer of a subordinate lodge of a fraternal beneficiary association, wholly unauthorized by the association or its superior officers, are not binding on the association and may not be invoked as a waiver of its rights, and it is only when the act of the subordinate officer, unauthorized in the first instance, has been ratified, with knowledge of the facts, by the superior officers, that it may be so invoked.</p> <p>6. -: -: -: -. In an action on a death , benefit certificate issued by a fraternal beneficiary association, defended on the theory that the certificate was void by reason of the member’s having engaged in a proscribed occupation, held that the secretary of the subordinate lodge had no authority to write certain letters to the beneficiary, relied on by her as constituting a waiver of the forfeiture, and, therefore, that the association was not bound thereby.</p> <p>7. LIFE INSURANCE: Forfeiture of Policy: Estoppel: Fraternal Beneficiary Associations. An agreement or course of action on the part of an insurer leading a beneficiary to honestly believe that, by conforming thereto, a forfeiture of the policy will not be insisted on, followed by due conformity and the incurrence of expense in so doing, estops the insurer from thereafter insisting on the forfeiture; but this doctrine presupposes authority in- the person purporting to represent insurer, and an estoppel may not be invoked where the person acting had no authority to represent insurer and he acted without the knowledge or consent of the superior officers of insurer.</p>

Louis City Circuit Court. — Hon. Leo 8. Rassieur, Judge. “Where a foreign corporation can be served with process had upon its agent in a county in this State, such corporation is a resident of the county within the meaning of Sec. 4060, R. S. 1899 (now Sec. 7568, R. S. 1909), and must appeal from the judgment of a justice within ten days.” Young v. Niles & Scott Co., 122 Mo. App. 392.