Volume 173 — Missouri Appeal Reports

Louis City Circuit Court.— Hon. Leo. 8. Rassieur, Judge. (1) The court erred in permitting the plaintiff to testify as to the assignment to himself, since he was an incompetent witness, and objection was duly made to his testimony. Sec. 6354, R. S. 1909; Saetelle v. Insurance Co., 81 Mo. App. 509; 86 Mo. App. 156; Donnell v. Jung, 81 Mo. App. 577; Johnson v. Burks, 103 Mo. App. 230, 231; Chapman v. Dougherty, 87 Mo. 617; Sec. 7579, R. S. 1909; Comfort v. Lyman, 67 Mo.

—Hon. James D. Barnett} Judge. (1) The plaintiffs are not entitled to recover for the reason that they failed to establish either an express or an implied contract to be paid for their services, and defendants are entitled to a reversal. 40 Cyc. 2809; Lawson on Contracts (2 Ed.) secs. 39, 43; 1 Beach on the Modern Law of Contracts, secs. 653-655; Smith v. Myers, 19 Mo. 433; Woods v. Land, 30 Mo. App. 176; Cowell v. Roberts, 79 Mo. 218; Tnmility v. Tumility, 13 Mo.

<p>1, FRAUD AND DECEIT: Sale of Corporate Stock: Misrepresentations: Sufficiency of Evidence. In an action on a note given for the purchase price of corporate stock subscribed for, ■defended on the ground of fraudulent representations by the salesman concerning the corporation being in a flourishing condition, evidence held to show that defendant was fully cognizant of the condition of the corporation and hence could not have been misled by the alleged misrepresentations.</p> <p>2. -: -: -: -. A representation by a seller of corporate stock of the par value of $50 a share, that it had. an actual intrinsic value of $120 a share, made for the purpose of inducing, and which did induce, a purchase of the stock, and which was untrue and designed to deceive the purchaser, was a fraud sufficient to invalidate the transaction and discharge the purchaser from his obligation to pay a note given for the purchase price.</p> <p>3. -: -: -: -. In an action on a note given for the purchase price of corporate stock subscribed for, defended on the ground of fraudulent representations, that the stock, which was of the par value of $50 per share, was of the actual intrinsic value of $120 a share, evidence showing that the subscribed and paid-up capital stock of the company amounted to $417,725 and the subscribed and paid-up surplus to only $129,397.90, that the value of all the property owned by the company was $550,139.53, and that the company had no income except from the sale of stock and some interest on loans, sufficiently showed that the stock' did not have the actual intrinsic value represented.</p> <p>4. EVIDENCE: Value of Corporate Stock, Where nothing more appears on the question, the par value of corporate stock is. regarded primLa facie as its actual value.</p> <p>5. -: -. In the absence of better evidence as to the value of the capital stock of a corporation, the market value of all its property may be considered with a view to arriving at the proportional value of the shares.</p> <p>6. FRAUD AND DECEIT: Sale of Corporate Stock: Reliance or* Representations. A person who knew nothing whatever about the value of life insurance stock, in purchasing such stock from the vice president and promoter of the company, had a right to rely on positive representations by the latter concerning its value; that being a question about which he was presumably fully advised.</p> <p>7. -: -: Materiality of Representations. Where a seller of corporate stock of the par value of $50 per share represented that it was of the actual intrinsic value of $120 a share, another representation, in connection therewith, that it was increasing rapidly in value, was material and pertained to an existing fact.</p> <p>8. -: -: Opinion as to Value. Where a seller of corporate stock of the par value of, $50 per share represented that it was of the actual intrinsic value of $120 a share and was increasing rapidly in value, a further representation that it would be worth $200 or $300 a share within two or three months/was a mere expression of opinion, on which the purchaser had no right to rely.</p>

Louis City Circuit Court.— Hon. Charles Glaflm Allen, Judge. (1) Plaintiff being the sole legatee under the will of the deceased, and not coming within the class of persons designated in the statute of Missouri and the bylaws of the defendant Knights of Pythias of Missouri, etc., is not entitled to recover the fund sued for.

Louis City Circuit Court.— Eon. J. Hugo Grimm, Judge. (1) The finding and judgment of the circuit court is against the evidence, the weight of the evidence and the law under the evidence. 29 Cyc. 820; 29 Cyc. 832; Lawson v. Mills, 130 Mo. 170; Choquette v. Railroad, 152 Mo. 257; Roberts v. Tel. Co., 166 Mo. 370.

<p>1. PARTNERSHIP: Power of Partner After Dissolution. A partner cannot, after dissolution of the partnership, ratify a contract purporting to have been entered into by the firm but which, in fact, was not.</p> <p>2. PLEADING: Variance. Where one is sued on the theory that he is liable as a partner on a firm contract alleged to have been ratified by him for the firm, he cannot be held liable on the theory that he entered into a new contract in his individual capacity.</p>

<p>1. EVIDENCE: Secondary Evidence: Foundation. In an action for the price of goods sold, evidence on the part of defendant that he had written to plaintiff countermanding the order, and that plaintiff received that letter before the goods were shipped, was inadmissible, where no proper foundation was laid for the introduction of secondary evidence.</p> <p>2. INSTRUCTIONS: Refusal: Not Supported by Evidence. Requested declarations of law, not supported by any evidence, are properly refused.</p>

—Hon. W. 8. G. Walker, Judge. (1) . There is no evidence that defendant saw plaintiff before he was injured. (2) At the time plaintiff was injured he was a trespasser on defendant’s track and defendant owed him no duty except the duty not wantonly or wilfully to injure him.

Louis City Circuit Court.— Hon. J. Hugo Grimm, Judge. (1) The evidence fails to show that the supposed negligence of defendant was the proximate cause of the injury sued for, hut the same resulted from intervening acts for which defendant was in no way responsible. Chandler v. Gas Co., 174 Mo. 328; Fuchs v. St. Louis, 167 Mo. 649; Lowe y. Railroad, 148 S. W. 956.

Louis City Circuit Court.— Hon. Leo . S. Rassieur, Judge. Plaintiff’s first instruction is erroneous for the reason that it authorized the jury to return a verdict for plaintiff, if they found there was any negligene upon the part of defendant instead of limiting them to the negligence counted on in the petition, thus being broader than the petition and authorizing a finding upon issues not presented by the pleadings.

<p>Appeal from St.. Louis City Circuit Court.— Hon. William B. Homer, Judge.</p> <p>A return is not conclusive against one who is not • served with a summons, when the party served is not the party sued but has the same name. Reid, Murdock & Co. v. Mercurio, 91 Mo. App. 673; Charles v. Flowers, 145 N. C. 243; Bank v. Authier, 52 Minn. 98.</p> <p>(1) This case must be tried in this court on the same theory on which it was tried before, and objections not made at the trial cannot now be entertained. Union E. L. & P. Co. v. Supply Co., 122 Mo. App. 631.</p> <p>(2) Unless it appears from the face of the judgment that the court 1: ad no jurisdiction of the defendant, the validity of the judgment cannot be questioned when sought to be enforced by garnishment, without subjecting it to collateral attack, and this the law does not permit. The garnishee is not entitled to a discharge because the original judgment is voidable. Nebatt v. Normal School, 79 Mo. App. 198; Potter v. Whitten, 142 S. W. 453; 2 Shinn on Attachments and Garnishments, sec. 706.</p>

Louis City Circuit Court.— Hon. William M. Kinsey, Judge. (1) Where a policy of insurance contains provisions covering such matter then if the age of the insured has been understated, the amount of insurance or other benefit will be equitably adjusted, in accordance with the terms and provisions of the policy. Keenan v. Life Ins. Co., 71 Atl. 137; Doll v. Insurance Co., 21 Pa. Super. Ct. 434; Life Ins. Co. v. Goodall, 5 Ohio Dec. 160, 3 Am. L. Rec. 338; Singleton v. Life Ins.

<p>1, MASTER AND SERVANT: Death of Servant: Evidence. In an action for the death of a servant, evidence concerning the manner in which the work was carried on, which did not refer • to any general custom or usage among people engaged in like work, was not vulnerable to an objection that it was inadmissible because no general custom was pleaded.'</p> <p>2. -: -: Safe Place to Work: Sufficiency of Evidence. In an action for the death of a servant, caused by a loose branch falling upon him from a tree to which was attached certain appliances that decedent was working with, evidence held sufficient to warrant a finding that the master was negligent.</p> <p>3. -: Injury to Servant: Safe Place to Work. Where it is not the custom to confine employees to any particular work nor to give them specific orders to do any particular work, but all assist in performing whatever work is to be performed, irrespective of any particular order, one of such employees who is injured through the master’s negligence, while standing idly by for a moment at a point where all are working, is entitled to recover.</p> <p>4. -: Death of Servant: Safe Place to Work: Instructions. In an action for the •■death of a servant, caused by a loose branch falling upon him from a tree to which was attached a cable which suspended a movable carriage, held that whether the master was negligent in failing to put a cover over the carriage, extending over the place where decedent was standing, was a question for the jury; held, further, that the causa causans was permitting the loose branch to remain in the tree, so that it was not so material, one way or the other, what the jury may have found as to the duty of the master to put such a cover over the carriage; and hence it is held, that the court did not err in refusing to instruct the jury that it was not the duty of the master to put a cover over the carriage extending entirely over it and covering the place where decedent was standing.</p>

<p>MASTER AND SERVANT: injury to Servant: Defective Machinery: Sufficiency of Evidence. In an action against a master for the death of an employee, • caused by the bursting of a wheel on a machine at which he was working in defendant’s factory, evidence held insufficient to warrant a finding that defendant was negligent.</p>

<p>L CONTRACTS: Building Contracts: Performance: Right of Recovery, Where a building contractor contracted to make certain repairs to a building for a stipulated amount, and thereafter the owner directed him to make other improvements, he was not entitled to a commission for superintending the work done under the original contract.</p> <p>2. -: -: Abandonment. Mere changes in a written or oral building contract, by which additional work is to be done, do not constitute an abandonment of the contract, and the mere fact that one who had entered into a contract to repair a building was directed by the owner to make other improvements would not constitute an abandonment of the contract, as to the work included therein, unless both parties agreed that it should.</p> <p>3. -: -: -: Instructions. An instruction that a contract to repair a building is deemed abandoned by a subsequent direction by the owner to make other improvements and perform other labor in the repairing of the building “materially different from the terms of the original contract,” is erroneous for omitting all reference to any concurrent intention of the parties to abandon the original contract.</p> <p>4. -: Instructions: Meaning of Terms. An instruction that a contract to repair a building is deemed abandoned by a subsequent direction by the owner to make other improvements and perform other labor in the repairing of the building “materially different from the terms of the original contract,” is erroneous for failing to define the term “materially different.”</p> <p>5. INSTRUCTIONS: Omitting Defense. An instruction which attempts to cover the whole case and leaves out a material part of a defense is erreoneous.</p> <p>6. DAMAGES: Instructions: Limiting Recovery. An instruction on the measure of damages should limit the recovery to the amount demanded in the petition.</p>

—Hon. W. S. C. Walker, Judge. (1) The proceeding by garnishment is essentially legal. It is not equitable; it can only reach legal assets in the hands of third persons or intercept legal credits owing to the defendant in the execution and there must be some privity between the debtor and garnishee. Atwood v. Hale, 17 Mo. App. 88; Lackland v. Garrishee, 56 Mo. 270; Provenchere v. Reifess, 62 Mo. App. 53; Merchantile Co. v. Betties, 58 Mo. App. 389. Bank v. Barnett, 98 Mo.

—Hon. E. M. Bearing, Judge. (1) The mandamus case was disposed -of upon a motion of the relator for peremptory mandamus. State ex rel. v. Berryman, 142 Mo. App. 378. (2) The motion for peremptory writ on the return was in effect a demurrer. State ex rel. Snyder v. Newman, 91 Mo. 451.

—Hon. B. G. Thurman, Judge. (1) 'The court erred in excluding from tlxe evidence the physician’s written prescription. Sec. 5781, R. S. 1909, provides that a druggist may sell intoxicating liquor on the prescription of a regularly registered and practicing physician. The prescription must reasonably and substantially comply with the statute. State v. Clevenger, 25 Mo. App. 655; State v. Hammock, 93 Mo. App. 521.

<p>1. COURTS OF APPEAL: Change of Territorial' Jurisdiction, Section 3 of the amendment to the Constitution of 1884 gave to the General Assembly power to create a third Court of Appeals. Thereunder, by Sec. 3926/R. S. 1909, the Springfield Court of Appeals was created, comprising certain named counties from the districts of the St. Louis and Kansas City Courts. Sec. 3927, R. S. 1909, provided that the Springfield Court of Appeals should have jurisdiction in all cases appealed from counties included in its district of which the St. Louis and Kansas City Courts formerly had jurisdiction and that all cases “now pending” in the two last named courts arising in counties which had been given to the Springfield district, should be certified and transferred to that court. Laws 1913, page 204, increased the territorial jurisdiction of the Springfield Court by adding 12 counties, taken from the districts of St. Louis and Kansas City Courts. No provision was made for the transfer of cases “now pending.” Held, that the mere changing of the territorial jurisdiction of the 12 counties did not change • the jurisdiction of the Courts of Appeal concerning those cases which had arisen in those counties prior to the taking effect of the act making the change; and that the Springfield Court would have jurisdiction only of cases arising in those counties subsequent to the taking effect of the act.</p> <p>2. COURTS OF APPEAL: Jurisdiction of. The jurisdiction, of .Courts of Appeal is territorial as well as of the subject-matter and the jurisdiction of an appeal means the right to hear and determine same. A cause on appeal must go to that Court of Appeals within whose territorial jurisdiction the county is situated, it alone having jurisdiction.</p> <p>3. --: Jurisdiction: Statutory Change: How Construed. A statute depriving a court of jurisdiction does not operate retrospectively to suspend proceedings then pending, unless such intention is clearly expressed in the act. A statute conferring jurisdiction does not operate to give jurisdiction over causes of action arising before the passage of the act.</p> <p>4. STATUTES: Amendments: Retroactive Operation. Unless required in express terms or by clear implication an amendatory act will not be given a retroactive construction. Proceedings, orders and judgments prior to the passage of the amendment will not be affected by it, but will be governed by the original statute.</p>

<p> Original Proceedings in Prohibition. </p>

One.—Hon. Joseph D. Perkins, Judge. (1) If by agreement interest on a note is to be paid annually this constitutes a debt if the parties make it so by their contract. And where a note provides for compounding interest if not paid when due it is optional with the holder of the note to compound interest or foreclose. And he may foreclose if he desires. Maples v. Jones, 62 Mo. 440; Rowe v. Schertz, 74 Mo. App. 602.

Two.—Hon. David E. Blair, Judge. (1) Under the petition, and the position assumed by the plaintiff at the trial as evidenced by the instruction asked by him, it devolved upon plaintiff to prove that the delay in the shipment was proximately caused by the negligence of the appellant, and as the evidence ■does not so show, plaintiff, was not entitled to recover and the court should have given the instruction requested by the appellant, directing a verdict in appellant’s favor.

One. Hon. Joseph D. Perkins, Judge. (1) The doctrine of res ipsa loquitur, is applicable to this case and the court should have given instruction marked C. The court instructs you that you are authorized to find that the fire in defendant’s mix-house was caused by defendant’s negligence from the mere fact that said fire occurred under the circumstances detailed in the evidence in the case.

—Hon. H. L. Bright, Judge. (1) Even if this property was sold by the plaintiffs to defendants and delivered to them, to be paid for upon a resale of the property, the defendants were bound to either pay the money, agreed upon, or return the property, whatever might have happened in the meanwhile, and it was the duty of the defendants to have paid the money or returned the property within a reasonable time and the fact that they failed to do so, for more than one whole year…

<p>1. ACTION: Waiver of Tort: Suit on Contract. A tort may be waived and suit brought on an implied promise to pay, in the nature of assumpsit'.</p> <p>2. EVIDENCE: Written Instruments: Oral Testimony as to Contents, When. The contents of a writing that is not proven lost or accounted for cannot be shown by oral testimony.</p> <p>3. PRINCIPAL AND AGENT: Conduct and Declarations of Agent Cannot Establish Agency. The relation of principal and agent cannot be established by the acts, declarations and conduct of the alleged agent.</p> <p>4. -: Principal’s .Knowledge and Ratification: Testimony of Agent. Until the relation of principal and agent is shown by other evidence, the statements and conduct of the alleged agent are incompetent, there being no proof that the principal was cognizant of same and ratified them.</p> <p>5. -: Accepting Agent’s Representations of Relation: Risk of. Where one acts and relies on the word of another, who represents himself to be the agent of a third person, without further investigation of. the agent’s authority, he does so at his peril.</p>

W. N. Evans, Judge. (1) Instruction No. 2 given on the part of the plaintiff is erroneous in that it is misleading and, impliedly, at least, allows double damages. Trigg: v. Railroad, 74 Mo. 147; Railroad v.- Birney, 71 111. 391; Prances v. Transfer Co., 5 Mo. App. 7; Spohn v. Railroad, 116 Mo. 632; Connell v. Western Union Tel. Co., 116 Mo. 46; Deming v. Railroad, 80 Mo. App. 162; State v. Workman, 75 Mo. App. 454.

<p>1. MINORS: Guardian For: Probate Court Authority to Appoint, When. No authority is given the Court of Appeals to appoint a guardian for a minor, but a probate court has such authority. Before the probate court can exercise such authority it must find that the minor’s residence is 'in the county and also that the minor’s father is not competent and fit for the duties of guardianship.</p> <p>2. -: Custody of: Habeas Corpus. The Court of Appeals has authority in habeas corpus proceedings to hear and determine who shall have the custody of a minor child.</p> <p>3. COURTS: Jurisdiction: Not to Conflict. Where the jurisdiction of a court and the right of the plaintiff to prosecute his suit in it have once attached, that right cannot be arrested and taken away by proceedings in another court.</p> <p>4. -: Habeas Corpus: Minors: Questions Involved. In a habeas corpus proceeding by a father to obtain the custody of his child, the questions of the fitness of the father for the guardianship of the child and the place of the child’s domicile being directly involved, held that the right of the Court of appeals to determine those issues could not be impaired, abridged or interfered with by the probate court in a guardianship proceeding instituted therein after the appellate court had acquired jurisdiction' in the habeas corpus proceedings.</p> <p>5. HABEAS CORPUS: Custody of Child: Evidence Reviewed. In a habeas corpus proceeding by a father to obtain the custody of his minor child, the evidence is examined and reviewed and held not sufficient to show that the petitioner had given and abandoned the child to its maternal grandmother.</p> <p>6. PARENT AND CHILD: Parent Proper Custodian: Child’s Interests. The law presumes that it is to the best interest of the child to be in the custody of its parent.</p> <p>7. -: Custody Given to Another by Mother: Death Revokes Gift. Even though a mother before her death did give a minor child to its maternal grandmother, such gift was revoked at the mother’s death and the father’s right to the custody-of the child was not thereafter affected by such gift.</p> <p>8. -: Custody of Child: Father Contracting Away: Habeas Corpus. A father cannot by contract, other than such as provided by statute, confer upon another irrevocably and absolutely as against himself, a right to the custody of his minor child. And notwithstanding such a contract, upon habeas corpus for the custody of such child, the custody will be awarded to the father unless the welfare of the child demands some other disposition be made of it.</p> <p>9. -: Custody of Child: Parent Natural Guardian. The father, after the death of the mother, is the natural guardian of his minor child. And it is only when he fails to care for and protect it and when the child’s best interest demands it, that the court will award the custody to others more competent and proper to look after and care for it.</p> <p>10. HABEAS CORPUS: Custody of Child: Parent Natural Guardian. In a habeas corpus proceeding by a father to obtain the custody of his minor child from its maternal grandmother, to whom the child had been given by the mother at her death, the evidence showed that the father was a young man of exemplary character and excellent habits, having steady and honorable employment at a good salary and that he had made provision for a suitable home for the child. Held, that the father was fit and competent for the duties of guardianship of the child and that the child’s interests and future welfare would be best subserved by giving its care and custody to the father.</p>

—Hon. J. C. Sheppard, Judge. (1) Sec. 3150, R. S. 1909, upon which respondent’s cause of action is predicated, is designed solely for the protection of property from damage by fire and water and has no reference to personal injuries. See. 3150, R. S. 1909; Cox v. Railroad, 174 Mo. 588; Scott v. Railroad, 38 Mo. App. 527. (2) The injury complained of was not the proximate result of the alleged wrongful act charged against appellant. Logan v. Railroad, 96 Mo.

—Hon. Guy D. Kirby, Judge. (1) Before equity in tlie property can become specifically exempt, appellant must claim it as such before tbe sale or execution of tbe deed by tbe sheriff. In this case appellant did that; therefore the sheriff is liable for proceeding with the sale after notice' of her exemptions. This is true even though the purported deed was intended as a mortgage, or the property was transferred to defraud creditors. In' either event appellant owned the equity.

—Hon., Ouy D. Kirby, Judge. (1) Plaintiff did not live up to his contract and cannot recover. Grain Co. v. LeMar, 125 Mo. App. 139; Kreitz v. Egelhoff, 231 Mo. 694, 703.

—Hon. L. B. Woodside, Judge. (1) A proceeding for a violation of a city ordinance is a civil and not a criminal action, and the sufficiency of the complaint will be tested by the rules applicable to other civil cases. City of Mexico v. Harris, 115 Mo. App. 707; Carthage v. Bird, 146 Mo. App. 325; Gallatin v. Tarwarter, 143 Mo. 46; Carruthersville v. Pallsgrove, 155 Mo. App. 564; Hannibal v. Dudley, 158 Mo.

One.—Hon. Joseph D. Perkins, Judge. Defendant maintains that when two physicians attended plaintiff and the plaintiff calls one of the doctors as a witness in his behalf, that he thereupon waives the incompetency of the other doctor. Defendant’s point is not well taken. Sec. 6362, R. S. 1909; Mellor v. Railroad, 105 Mo. 455; Hoy v. Morris, 13 Gray, 519; Edington v. Ins. Co., 77 N. Y. 564; Westover v. Ins.

—How. Carr McNatt, Judge. (1) The court erred in admitting any evidence offered by the plaintiff under her petition for the reason the same-stated no cause of action. 13 Ency. PI. and Pr. 55; Townsend on Slander and Libel, sec. 338; Ukman v. Daily Record Co., 189 Mo. 394; 25 Cyc. 450; Dyer v. Morris, 4 Mo. 214; Fallenstein v. Booth, 13 Mo. 427; Christal v. Craig, 80 Mo. 369; Boyce v. Aubuchon, 34 Mo. App. 318; Bundy v. Hart, 46 Mo. 462; Powell v. Crawford, 107 Mo. 598.

—Hon. Jesse C. Sheppard, Judge. (1) On its face the note had been barred by the statute for more than eleven years before suit was commenced. The burden is on the defendants to show such facts as will take the note out of the statute. Wood on. Limitation, p. 225-6, sec. 98, and note. Biggs v. Roberts, 85 N. C. 451. (2) The indorsements on the back of the note, without proof of the fact of payment and when made, are insufficient to take the case out of the statute.

—Hon. J. C. Sheppard, Judge. (1) On a bill of interpleader there arises two litigations and there must be a judgment in favor of plaintiff before an issue can be framed between the claimants of the fund in controversy. Duke, Lennon & Co. v. Duke & Woods, 93 Mo. App. 244.

. One.—Hon. Jos. D. Perkins, Judge. (1) A right of action for the recovery of damages for injury to the person of personal feelings of the bankrupt is a personal tort and does not vest in the trustee in bankruptcy of the injured person.

<p>1. MINES AND MINING: Rights of Cotenants. The lessee of one tenant in common has no right to mine and take mineral ores from a tract -of land against the will and without the consent of the other cotenant.</p> <p>2. RAILROADS: Right of Way: Easement Only-. The estate of a railroad company in lands acquired for right of way amounts to an easement only. The fee to the lands thus occupied continues in the adjacent landowners.</p> <p>3. MINES AND MINING: Protection to Surface Easement: Injunction. The owner' of a surface easement has a right to have the surface supported and not subjected to the dangers of the ground caving in because of mining thereunder, and injunction is the proper remedy to enforce such right.</p> <p>4. -: Endangering Highway or Railroad: Criminal Provisions. Secs. 8428 and 8429, R. S. 1909, make it a criminal offense to mine under a highway or railroad so as to cause the surface to cave in.</p> <p>5. INJUNCTIONS: Requirements of Plaintiff: Relaxation of Rule. Although plaintiff must make out a clear and unquestioned case when asking for injunctive relief, yet this rule will not be too strictly enforced when it becomes apparent that by doing so there is a probability of injury to persons or loss of life.</p> <p>••6. -: Railroads: Mining Under Right of Way. In a suit by a railroad company to enjoin mining operations under its right of way, the evidence in the case is reviewed and exigencies considered; held, that while plaintiff was not entitled to unlimited injunctive relief, yet defendants should be perpetually enjoined from mining under such right of way in a manner,'at a depth and in a place which would endanger or interfere with the operations of trains over such right of way and the use of the same for railroad purposes.</p>

—Hon. W. N. Evans, Judge. (1) The verdict of the jury was for the wrong party. It should have been for the plaintiff. (2) It was error for the Judge to leave the court room during the progress of the trial. Berst v. Moxom, 145 S. W. 857. (1) Appellant says the verdict was for the wrong party; that it should have been for him. This court does not weigh the evidence—that is left to the trial court and jury. Schultze v. Bailroad, 32 Mo. App. 451; Browning v. Dorton, 143 Mo.

<p>HABEAS CORPUS: Appellate Court’s Jurisdiction. Sec. 2509, R.. S. 1909, requires that the application for the writ of habeas corpus shall be first made to the judge of the circuit court of the county in which the prisoner is confined, if at the time of the application such judge is in the county. Eeld, that in an application for the writ, there being no allegation that the circuit judge was out of the county, the appellate court will decline to proceed.</p>

—Hon. Guy D. Kirby, Judge. (1) The court erred in permitting the amendments to the petition. They constitute a departure. Purdy v. Pfaff, 104 Mo. App. 331; Ross v. Cleveland Co., 162 Mo. 317; Prese v. Meyer, 143 Mo. 457; Jones v. Cooperage Co., 140 Mo. App. 330. (2) Proper implements were furnished and full duty of defendant discharged. Thornberry v. Mining Co., 126 Mo. App. 660; Pholman v. American Co., 123 Mo. App. 219; Shores v. Bridge Co., Ill Mo. App. 298.

—Hon. H. L. Bright, Judge. (1) Competent .evidence having been produced upon the trial tending to prove the 1st, 2nd, and 3rd grounds of attachment, alleged in plaintiff’s affidavit, it was gross error for the court to instruct the jury that as to said 1st, 2nd, and 3rd grounds the verdict of the jury must be for the defendant. The court thereby deprived plaintiff of the right of trial by the jury, as to the issues of fact presented to support said grounds of attachment.

Two.—Hon David E. Blair, Judge. (1) Where a party has a meritorious defense and uses a reasonable degree of diligence in making it, that is all that is necessary to justify a trial court in setting aside a judgment by default. Currey y. Zinc, Lead & Smelting Co., 157 Mo. App. 423; Parks v. Coyne, 155 Mo. App. 394; Adams v. Hickman, 43 Mo. 171; Scott v. Smith, 133 Mo. 618. (2) Under all the facts and the law the default judgment should have been set aside.

—Hon. Argus Cox, Judge. (1) Appeals under Sec. 5993, R. S. 1899, are regulated by the law in regard to appeals from justices of the peace, and as defendant by leave of court filed a proper amended affidavit for appeal before plaintiff’s motion to dismiss was passed upon, her appeal should not have been dismissed. Sec. 4072, R. S. 1899. (2) Cities of the fourth class have no power to condemn property for a cemetery. Secs. 5217, 5220, 5972, 5993, R. S. 1899.

—Hon. Guy D. Kirby, Judge. (1) Plaintiff must stow, to recover: First, a defective machine or appliance; second, knowledge of such, defective machine or appliance on the part of the master, or the existence of such defective condition for such a time as would create a presumption of such knowledge, and third, a lack of knowledge on the part of plaintiff of such defect. Traner v. Mining Co., 148 S. W. 70; Beach, Contributory Negligence, sec. 140; Schall v. Cole, 107 Pa.

—Hon. C. H. SJcinlcer, Judge. (1) Under the evidence the case should have been submitted to the jury. Christianson v. McDermott’s Est., 123 Mo. App. 448; Stone v. Troll, 134 Mo. App. 308; Ryan v. Hospes, 167 Mo. 342; Lillard v. Wilson, 178 Mo. 145; Taylor v. Hudson, 145 Mo. App. 377; (2) It was not necessary to prove an express contract.

—Hon. Carr McNatt, Judge. (1) The court erred in refusing to allow plaintiffs to prove the cost of replacing the apple trees that were destroyed. Diggs v. Railroad, 131 Mo. App. 461; White v. Stoner, 18 Mo. App. 540; Muldrow v. Railroad, 62 Mo. App. 434; Doty v. Railroad, 136 Mo. App. 259; Shannon v. Railroad, 54 Mo. App. 226; Dwight v. Railroad, 132 N. Y. 199, 15 L. R. A. 612, 28 Am.

—Hon. Carr McNatt, Judge. (1) The defendant’s demurrer at the close of the evidence for the plaintiff and its demurrer at the close of all the evidence should have been given. Clark v. Railroad, 242 Mo. 605; Dyrcz v. Railroad, 238 Mo. 46; Hook v. Railroad, 162 Mo. 579; Schmidt v. Railroad, 191 Mo. 228; Sims v. Railroad, 116 Mo.

—Hon. L. B. Woodside, Judge. (1) The value of property destroyed is a material allegation of plaintiff’s petition, without which the petition is bad on demurrer, and without proof of which value cannot recover. Story v. Ins. Co., 61 Mo. App. 535; Ramsey v. Underwriters’s Assn., 71 Mo. App. 381. (2) Defendant’s peremptory instruction should have been given.

—Hon. Carr McNatt, Judge. (1) The equipment used was of the simplest kind and the dangers were obvious. Beckman v. Brewing Association, 98 Mo. App. 555. (2). Plaintiff was guilty of contributory negligence. Dodds v. Coke Co., 115 Mo. App. 501; Whaley v. Coleman, 113 Mo. App. 598; Knorpp v. Wagner, 195 Mo. 637; Myers v. Glass Co., 127 Mo. App. 557; Schiller v. Breweries Co., 156 Mo. App. 569.

Clair County Circuit Court.—Hon. C. A. Calvird, Judge. (1) The defendant’s objection to the amending of the plaintiff’s petition by interlineation should have been sustained. (2) The court admitted incompetent evidence over defendant’s objection in permitting the plaintiff to cross-examine defendant about charges and convictions in the police court. O’Connor v. Transit Co., 106 Mo. App. 215; Koch v. State, 3 L. R. A. (N. 0.) 1896.

One.—Hon. Joseph D. Perkins, Judge. (1) The rule of res ipsa loquitur has no place in a case where specific negligence is alleged in the petition. .Tighe v. Railroad, 129 Mo. App. 498; Feed & Coal Co. v. Railroad, 129 Mo. App.- 498; McGrath v. Transit Co., 197 Mo. 97; Feary v. Street Railway, 162 Mo. 75; Kennedy v. Street Railway, 128 Mo. App. 297.

. One.—Hon. Joseph D. Perkins, Judge. • (1) Where a city undertakes to construct a district sewer to be paid for in special tax bills, the proceeding must be set in motion by an ordinance specifying the dimensions, material and character of the sewer, either by setting such matters out on its face or by reference to plans and specifications then on file in a designated office. McCormick v. Moore, 134 Mo. App. 078; Richardson v. Walsh, 142 Mo.

One.—Hon. J. D. Perkins, Judge. (1) To require notice to property owners to make improvements, as defendants contend is sought to be done by the ordinance referred to in their answer, has the effect to suspend the right of the city, during that time, to proceed under the charter of powers. State ex rel v. Gordon, 217 Mo. 103, 118.

<p>Appeal from Jasper County Circuit Court, Division No. One.—Hon. Joseph D. -Perkins, Judge.</p> <p>Briefs same as in ease of Meyers et al. v. Wood et al.,,. page - 564.</p>

Two.—Hon. D. E. Blair, Judge. (1) The city has full power and authority “to exercise exclusive control over its streets and alleys.” Sees. 10294, 9227 and 9230, R. S. 1909; Sec. 9254, Sess. Acts 1911 of Missouri, p. 337. (2) Under its delegated authority and inherent police power the city may regulate and control the uses of its streets, below the surface and above. Crumpler v. City of Vicksburg, 29 Miss. 214, 10 Am. & Eng.

Two.—Hon. David E. Blair, Judge. (1) The petition fails to state a cause of action against the defendant. The defendant being an Electric Railroad Company operating under the trolley system, the provisions of See. 3140, R. S. 1909, do not and cannot apply to defendant company in the operation of its bars. Cowan v. Tel..Co., 149 Mo. App. 566; Henson v. Railroad, 110 Mo.

Two.—Hon. David E: Blair, Judge. (1) Under a general denial the defendant may substantially maintain a special defense in disproving the contract asserted against him, by proving that the contract was materially different from the one asserted against him; also that there was no such contract as alleged in the petition. • Ass’n v. Obert, 169 Mo. 507; Johnson v. Woodman, 119 Mo. App. 98; Clemmens v. Knox, 31 Mo. App. 185; Wilkerson v. Farnham, 82 Mo. 672.

—Hon. Argus Cox, Judge. (1) In condemnation proceedings when the entire tract of land is taken, as was done in this case, the full measure of damage is the reasonable market value of the land taken. Railroad v. McGrew, 104 Mo. 290; Railroad v. Porter, 112 Mo. 368; Railroad v. Real Estate Co., 204 Mo. 575; Street Railway v. Walsh, 197 Mo. 392.

—Hon. Carr McNatt, Judge. (1) No time being specified in the contract, defendant was entitled to a reasonable time in which, to furnish plaintiff with a clear title. Mastín v. Grimes, 88 Mo. 478; Bates v. Roberts, 189 Mo. 49. (2) If defendant’s title was in fact a clear title, plaintiff could not refuse to accept it because his attorney made objections to the same. Atkinson v. Taylor, 34 Mo.

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

<p>1. NEGLIGENCE: Street Railways: Premature Starting of Car. The plaintiff was a passenger on a Woodland avenue street car, and in response to her signal, the car stopped at Fortieth street and Woodland avenue for her to alight. The plaintiff proceeded to leave the car and had both feet on the bottom step, without having hold of a handhold, preparatory to stepping down to the pavement when the car suddenly started • forward in response to the conductor’s signal. The plaintiff landed on her feet with a jolt so violent that she suffered a temporary suspension of the powers of locomotion, and internal injuries. I-lelcl, that under the circumstances the limit of the plaintiff’s recoverable damages should not exceed $4000.</p> <p>2. MISCONDUCT OF COUNSEL: Remarks: Exceptions. When the bill of exceptions does not show that any remarks made by the plaintiff’s counsel to the jury were objected to or in any way brought to the attention of the court at the time they were made, they will not be considered on appeal.</p>

<p>1. CORPORATIONS: Insolvent or Dissolved: Liability of Stock-bolder. Where the judgment’ of the trial court necessarily includes a finding that defendant is a stockholder, slight evidence that he was such will be sufficient to uphold the judgment of the court on that point.</p> <p>2. --: -: -. In a suit against a person to charge him with liability as a stockholder, the books and records of the corporation, to which defendant is not a party, are not admissible to prove that he was a stockholder. Such fact must be proved by other evidence. When other competent testimony has been offered, however, showing that defendant is a stockholder and has attended directors’ meetings and acted as such, and has paid calls and assessments the same as other stockholders, then the records and minutes of the corporation are admissible to show that such assessments were made and- to compare the assessments made on and paid by defendant with those of other stockholders.</p> <p>3. -: -: -: Judgment and Unsatisfied1 Execution. In the absence of a statute giving creditors the right to proceed against stockholders, only those who have liens on judgments can do so.</p> <p>4. -: -: Receivers: Kansas Statutes. Under the statutes of Kansas a receiver can be appointed for a corporation when it is either insolvent or dissolved. These statutes give the receiver the right to proceed against the stockholder whenever insolvency or dissolution is proved and found to be true in any manner. Under these statutes the secondary liability of the stockholder is made an asset of the corporation itself for the benefit of all its creditors, and removes the necessity for first obtaining a judgment and having an unsatisfied exe-cution returned before a receiver can be appointed to sue the stockholders provided it is first judicially established that the corporation is either insolvent or dissolved.</p> <p>5. -: -: -: Suit Against Stockholders: Necessary that all Within Jurisdiction of Court be Made Parties. Thé Kansas statute does not contemplate that all stockholders shall be included in one suit, but only all those within the jurisdiction of the court, and that where stockholders live in different jurisdictions different suits can be brought against them. Equities between the stockholders can be adjusted by the court in which the receiver is appointed.</p> <p>6. -:--. Where the action of the court in appointing a receiver is not void such appointment cannot be collaterally attacked by the stockholder when sued by the receiver for his unpaid subscriptions.</p> <p>7. PLEADING: Objection that Plaintiff Has no Capacity to Sue. Where the alleged incapacity of plaintiff to sue appears from' the facts alleged in the petition, the objection must be raised by special demurrer, and if this is not done the objection is waived by answering and going to trial.</p> <p>8. LIMITATIONS. Statutes of Limitation do not begin to- run in favor of a stockholder in a Kansas corporation to protect him from suits for unpaid subscriptions until the right to proceed against the stockholder is created by the appointment of the receiver and the order made for him to proceed, and stockholders cannot object that such order was not made sooner.</p> <p>9.--: Statute of Kansas. Where, by a statute of Kansas in reference to persons outside the state, a cause is not barred in that state, a suit by a Kansas receiver based on a cause of action arising in that state is not barred in this state.</p>

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

<p>1. MECANIC’S LIENS: Landlord and Tenant: Freeholds and Leaseholds. Plaintiff sued to enforce a mechanic’s lien for materials furnished for the repair and alteration of a building on premises leased hy defendant railway company to its co-defendant. The materials were furnished under a contract to the lessee, the Amusement Company. This action is to enforce a lien for such materials against the freehold as well -as the leasehold estate. The lessee in its lease agreed to repair, etc., the building at its own expense, estimating the repairs to amount to $8000 for which amount it gave bond to the lessor. -Repairs thereafter made cost over $30,000. Held, that the amusement company cannot he said to have acted as the agent of its landlord, nor will the estate of the latter he held bound for labor and materials furnished under contract with it alone.</p> <p>2. -: -: -. Where there is no evidence tending to show that any consideration was to be paid by the lessor; that the improvement substantially enhanced the present value of the freehold estate, was made in part for the benefit of the lessor, or that the lessor did anything to constitute the lessee its agent for the improvement of the building a lien on the freehold will not he upheld.</p>

<p>1. NEGLIGENCE: Defective Sidewalk: Notice to City: Jury Question. Where there was evidence that the iron cover to a coal hole in the sidewalk at a busy and populous part of the city was removed in the morning to afford air to employees of a business house working in the basement, and the hole insecurely covered with loose boards, and plaintiff in passing persons on the street, without negligence on her part, fell into said hole and was injured about 1:30 in the afternoon, the question of whether the city had reasonable time in which to discover and remedy the defect before the injury, was properly submitted to the jury.</p> <p>2. -: -: -. Whether a defect has existed for such a length of time as to constitute negligence or justify the submission of that question to the jury depend much upon the surrounding circumstances. If it is at a point where the city’s activities concentrate, the city is called upon to use increased care, and a less time would be required there than elsewhere.</p> <p>3. -: -: -: Instructions. Where only a moment’s time would be required to remedy the defect an instruction which allows the city reasonable time in which to discover the defect by the exercise of ordinary care but does not clearly state that it also has a reasonable time in which to remedy the defect after knowledge thereof, is not reversible error where the time shown is ample both to discover and remedy the defective condition.</p>

<p>NUISANCE: Obstructions on Sidewalk. A relator owned a building adjoining that of defendants, both of which abutted upon a public street in the city. The defendants built loading docks or platforms on the south and west sides of their building which was on a corner. These platforms appropriated the sidewalk to their own use and» compelled travellers on the walk to either climb over them or go out into the street to get by. The relator got the prosecuting attorney to bring suit in the name of the state at the relation and to the use of relator to remove them as public nuisances: Held, a proper remedy to secure relator’s rights. Held, also that the platforms were public nuisances which defendants had not the right to erect or maintain; and that when the qity passed an ordinance permitting their erection, the city exceeded its authority.</p>

<p>1. LANDLORD- AND TENANT: Defective Premises: Liability of Landlord. Where a person is injured by ■ a defect in the demised premises and such injured person sustains only a contractual relation, to the tenant, such as a guest, servant or customer and is on the premises solely in that capacity, the landlord is liable to such third person in 'so far as he would be liable to the tenant and no further. It is different where the injured person is a stranger to both landlord and tenant and derives his rights by operation of law from the fact that he is a member of society in general.</p> <p>2. -: -: -. A landlord is not liable to a tenant, and consequently is not liable to a third person sustaining merely a private relation to the tenant, for an injury caused by a defective building leased without representation or warranty of fitness or safety and without contract to repair, unless the defect was a hidden or concealed defect existing at the time the lease was made, and of which the landlord knew or ought to have known, and of the existence of which he did not tell the tenant.</p>