Volume 174 — Missouri Appeal Reports

<p>ACCOUNT STATED: Special Contract. In a suit for the balance due on an account for stone sold and delivered, where the suit is upon an account stated, the admission of the plaintiffs, that they agreed that if defendant would give his note for the balance, they would hold it as cash and credit it with any loss accruing to defendant • from any defective material they had sold, does not destroy their right to recover as upon an account stated under the circumstances of this case. It is not shown that the stone was sold upon any such condition nor that an agreement as -to the amount due was obtained by making any such agreement. And it does appear that the condition upon which the special contract was to rest was not complied with by appellant;</p>

<p>Appeal from Jackson Circuit Court. — Hon. Walter A. Powell, Judge.</p>

<p>1. TAX BILLS: Jurisdiction: Interest. In order to confer jurisdiction of the subject-matter on' the court in any action to enforce the lien of a special tax bill, the action must have a defendant or defendants who own the land sought to be charged or some interest or estate in it and the judgment can affect only such interest or estate.</p> <p>2. -- — : -: -. An action to enforce the lien of a special tax bill issued under the provisions of the Kansas City Charter is not in rem until after jurisdiction of the subject-matter has been acquired by the court in which the action is being prosecuted.</p> <p>3. -: Record Owner: Notice. In a suit to enforce a special tax bill the record owner would be the proper party unless the true owner was known to the holder of the bill. If the owner of the property fails to record his deed, and a tax lien holder brings his action against one who appears to be. the owner by the record, not having notice of the title of the real owner, and proceeds to judgment and sale, it will convey the title in a way similar to the instance of one purchasing from the record owner without notice of any other title.</p>

<p>1. DAMAGES: Plena! and Remedial Statute: Strict Construction. As section 5425, R. S. 1909, stood prior to the amendment of ■ 1905, the. penalty feature inhered in and existed throughout the whole of the sum allowed. It was fixed at $5000, and no more, no less, and if penal at all, was penal throughout, that is, its penalty existed throughout along with its remediálity. Hence, under that. statute if plaintiff would seek a penalty, he must ask for the precise sum named in the statute, and if his petition asked for a less amount, it did not come within the statute and, therefore, stated no cause of action thereunder. . Such statute m'fist be strictly construed.</p> <p>2. -: -: -: Amendment of 1905. It would seem that if the. language of the statute as amended in 1905 is accepted as it reads, then the element of penalty exists throughout the whole of the amount now specified the same as before the amendment. And if such is the construction to be placed on the statute as it now stands, then a petition which does not sue for the whole amount allowed by the statute, states no cause of action. To allow a plaintiff to sue for less than the whole penalty provided would enable plaintiffs to whittle down the state’s penalties to suit their convenience thereby making different penalties in different suits for the same character of acts.</p> <p>3. -:-:-:-. If, however, the statute, as it now stands, is penal only as to the $2000 minimum and compensatory as to anything in excess of that sum, then a plaintiff can either sue for the penalty alone, or for penalty with compensation. And, construing the case of Boyd v. Railway, 155 S. W. 13 as holding that the statue is penal only as to the $2000, it is held that a plaintiff can sue for the penalty only and therefore a petition asking for $2000, and making no claim for compensation, is not demurrable. Inasmuch as this holding involves the proper construction to be placed on the ease of Boyd v. Railroad, supra thereby bringing into the case the question of the constitutionality of the statute as thus construed, this case is certified to the Supreme Court.</p>

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

<p>Appeal from Jackson Circuit Court. — Ron. Jas. R. Slover, Judge.</p>

<p>•Appeal from Jackson Circuit Court. — Ron. Jas. A. Guthrie, Judge.</p>

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

<p>1. MECHANIC’S LIENS: Notice of Claim: Sufficiency. V., the general contractor, mad'e a contract with B., a subcontractor, to put the plumbing in a certain building being erected. B. made an arrangement with R. by which the two were to buy the supplies and put them in the building. There was some evidence that a partnership had been formed between S. B. and R. under the name of the Berger Plumbing Co.; but whether there was or not, B. and R. were partners in the purchase of the supplies from plaintiff. They partially installed the supplies in the building and then abandoned the job, and the general contractor finished the installation of the supplies purchased. Plaintiff’s lien-claim stated that it was for materials furnished under one entire general contract with “J. R. Riley et al., as Berger'Plumbing Company, subcontractors under Carl Vrooman, contractor,” and the notice to the owner was that a lien would be claimed for the materials furnished by “X R. Riley et al. as Berger Plumbing Company, subcontractors under Carl Vrooman, the contractor for making the improvements for you.” Held, that this notice was sufficient and'was not invalid because it did not set out the names of those covered by the “et al.” in the notice.</p> <p>2. -: -: — : Variance Between Lien Claim and Petition. Under the above facts there was no variance between the lien claim and the petition.</p> <p>3. -: -: Partnership. There being no finding of facts, the appellate court cannot tell whether the trial court found against R. as one of the partners or as a joint subcontractor.” But as there was evidence tending to show a partnership or at least a holding out of partnership to plaintiff, it will be presumed that the trial court’s judgment was based- on the fact of partnership either actual or constructive.</p> <p>4. -: Non-Iienable Items in Account. Where non-lienable items were unintentionally inserted therein, and were easily distinguishable from the rest, and disclaimer was made as to them by plaintiff before judgment and the court struck , them out, the inclusion of them in the original account cannot invalidate the lien.</p>

<p>Appeal from Jackson Circuit Court. — Koto. W. O. Thomas, Judge.</p>

.Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) Evidence qf what might, should or could have taken place under conditions which never existed is too uncertain and speculative to constitute the basis-of a finding of damages. ’ Rimel v. Hays, 83 Mo. 200; Rutledge v. Railroad, 110 Mo. 312; Reynolds v. Telegraph Co., 81 Mo. App. 223; Baldwin v. Telegraph Co., 45 N. Y. 744; Hosiery Mills v. Tel.

Louis City Circuit Court. — Ron. Charles Claflin Allen, Judge. If one of the parties requests the court to state its findings of fact and conclusions of law, it is the duty of the trial court so to do. The failure or refusal to make such findings in a legal action constitutes reversible error. R. S. 1909, sec. 1972; Loewen v. For-see, 137 Mo. 29; Miller v. McCaleb, 208 Mo. 562; Fahy v. Grocer Co., 57 Mo. App. 73; Hamill v. Talbott, 72 Mo. App. 22; Bailey v. Emerson, 87 Mo.

Louis. City Circuit Court. — Mon. George M. Shields, Judge. (1) Defendant was guilty of negligence toward plaintiff in requiring plaintiff to clean the carding machine while the cylinder thereof was in motion, without warning, when it knew, or by care could have known, that he was ignorant of the operation of the machine, and not likely to discover that the cylinder was in motion and therefore likely to sustain injury to his hands.

Louis City Circuit Court. — Hon. George H. Shields, Judge. The demurrer to the evidence should have been sustained: (a) Because if Varwig was negligent in letting the wire slip from his hands and injure the plaintiff, his negligence was that of a fellow-servant for which the master is not liable.

Louis City Circuit Court. — Hon-. J. Hugo Grimm, Judge. (1) This case should be reversed because of the failure of the court below to give defendant’s instruction in the nature of a demurrer to the evidence.

<p>Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.</p>

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) Under the common law as well as under the city ordinances, it was the duty of the motorman to keep a vigilant watch for persons and vehicles, either on or moving towards the track. Sepetowski v. Transit Co., 102 Mo. App. 110; Riska v. Railroad, 180 Mo. 168; Sludder v. Transit Co., 189 Mo. 107; Deschmer v. Railroad, 200 Mo. 310.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) Tlie demurrer to the evidence should have been sustained: (a) Because there was no substantial evidence of negligence on the part of the defendant. The tool was simple, the use to which it was to be put was simple and the alleged danger apparent and known to plaintiff. Halloron v. Iron Foundry Co., 133 Mo. 470; Blundell v. Manufacturing Co., 189 Mo. 552; Boring v. Medart, 56 Mo. App. 443; Crismer v. Bell Tel.

Louis Court of Criminal Correction. —Hon. Calvin M. Miller, Judge. Cause certified to Supreme Court.

Louis Court of Criminal Correction. —Hon. Benj. Klene, Judge. Cause certified to Supreme Court. The information charges no violation of law. In order to charge the offense under section 4835 the information should have alleged a sale, or .offer of sale, of the imitation substitute for butter without packing the same in firkins, tubs or paper packages with the true name of said imitation substitute clearly and indelibly branded, marked .or labeled thereon.

<p>Appeal from St. Louis Court of Criminal Correction. —Hon. Benj. Klene, Judge.</p> <p>Cause certified to Supreme Court.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The .requirement of section 9848 of the Revised Statutes as to filing notice of suit with the city comptroller is mandatory and therefore the court erred in giving plaintiff’s first instruction and in refusing defendant’s first two instructions. 36 Cyc. 1157, title Statutes; Hope v. Flentge, 140' Mo. 401; Horsfall v. School District, 143 Mo. App. 541.

<p>1. APPELLATE PRACTICE: Crimes and Punishments: Duty of Court to Examine Record!. On appeal by the defendant from a judgment of conviction in a prosecution for a criminal offense, although neither appellant nor respondent files briefs, it is the statutory duty of the court to examine the record for error, under Sec. 5312, R. S. 1'909.</p> <p>2. LARCENY: Petit Larceny: Sufficiency of Information. An information, in a prosecution for petit larceny, charging that defendant, on a certain day and' in a certain place, unlawfully and willfully stole, took and carried away, of the money and property of a person named, $1.08, lawful money of the United States, of the value of $1.08, was sufficient.</p> <p>3. CRIMES AND PUNISHMENTS: Alibi: Instructions. An instruction, covering the defense of alibi, in a criminal prosecution, that if the evidence left a reasonable doubt as to defendant’s presence at the place where the offense was committed at the time of its commission, he could not be convicted, for the presumption of innocence attends him throughout the trial and he can only be convicted on the establishment of guilt beyond a reasonable d'oubt, was correct.</p>

<p>1. COMMON CARRIERS: Interstate Commerce: Supremacy of Federal Laws. The extent of a carrier’s liability for loss of an interstate shipment of goods is governed by the Interstate Commerce Act of February 4, 1887, 24 Stat. at Large, 379 (U. S. Comp. St. 1901, p. 3154), and its amendments, including that of June 29, 1906, 34 Stat. at Large, 584 (II. S. Comp. St. Stipp. 1911, p. 1284), and the decisions of the United States Supreme Court construing these acts, which supersede all State regulations and rules of decision on the subject.</p> <p>2. CONTRACTS: Written Contract: Prior Netgotiations. All prior negotiations and conversations antecedent to the execution of a contract are deemed to have been merged in it, and, in an action on it, the recovery must be in accordance with its terms, in so far as they are valid.</p> <p>3. COMMON CARRIERS: Interstate Commerce: Limitation of Carrier’s Liability. Where a common carrier publishes and files, in accordance with the Interstate Commerce Act, two rates on interstate shipments, under the lower of which the carrier’s liability for loss is limited to ten times the freight paid, and- under the higher of which the carrier’s liability is unlimited, a shipper whose goods are shipped under the lower rate may recover, in the event of loss, only in accordance with the limitation annexed to such ráte; such limitation being valid under the Interstate Commerce Act and its amendments as construed by the Supreme Court of the United States.</p> <p>4. -: -: -. Where the bill of lading issued by a carrier for an interstate shipment provided that the amount of any loss should be computed on a basis of the value of the property at the time of shipment, unless a lower value was represented in writing by the shipper, or was agreed on, or was determined by the classifications or tariffs on which the rate was based, in any of which events the lower value should be the maximum amount to govern such computation, and the shipment was made under a rate, published' -and filed in accordance with the Interstate Commerce Act, which limited the carrier’s liability, in case of loss, to ten times the freight paid, the shipper, in an action on the contract for loss of the shipment, was hound by the contract as written, and a recovery could be had only in the amount of ten times the freight paid, notwithstanding the fact that the shipper disclosed' to the carrier’s agent that the value of the goods was several thousand dollars, and the carrier, and not the shipper, selected the rate charged, when another and higher rate was in force, under which the carrier would' have assumed full liability for loss.</p> <p>5. INTERSTATE COMMERCE: Rates not Subject of Contract. Interstate commerce rates, when duly filed and approved, are fixed by law and, therefore, not the subject of contract between the parties.</p> <p>6. -: Presumption of Reasonableness of Rates. The question of the reasonableness or unreasonableness' of rates established in accordance with the Interstate Commerce Act, and the conditions attached to them, is not one for the courts to determine in the first instance, but primarily is committed to the Interstate Commerce Commission, and, therefore, it is the duty of the courts to treat with such rates and annexed conditions as being reasonable and just, whatever may be their views on the subject.</p>

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The court erred in denying appellant an allowance out of the estate of Johanna Ryan, deceased, in lieu of provisions not on hand at the death of his mother, for his support and maintenance, during the twelve months succeeding the mother’s death.

— lion. E. M. Bearing, Judge. There is no inconsistency or conflict between instructions given on behalf of appellant and .respondents. And under the allegations in appellant’s petition hereinbefore quoted, and the evidence, instruction No. 1 given on behalf of respondents correctly declared the law. Church v. Railroad, 1191 Mo. 203; Herman v. Compton Hill Imp. Co., 58 Mo. App\ 480; Baker v. Railroad, 122 Mo. 533.

<p>REAL ESTATE BROKERS: Right to Commission: Instructions. In an action by a real estate broker for a commission for effecting tbe sale of land, there was evidence tending to show that plaintiff was employed to sell the land to a third person who had an option to purchase it at $60 per acre; that the option was twice renewed by defendant, the last renewal stipulating that the price should be $65 per acre; that, prior to the expiration of the last renewal, the land was sold to a corporation organized by the third person, plaintiff’s evidence being, that the price was $60 per acre, while defendant’s evidence was, that the price was $65 per acre. The court instructed, at the instance of defendant, that before plaintiff could recover, the jury must find that the land was sold in pursuance of and under the renewal option. Held, that the instruction was erroneous for denying -a recovery if the jury found that the sale was for $60 per acre; plaintiff being entitled to recover if he was the ‘ procuring cause of the sale, regardless of whether or not the sale was made under and in pursuance of the renewal option.</p>

— Hon. W. 8. C. Walker, Judge. (1) Section 3150 on which, this action is based does not require a railroad company to construct or maintain openings across or ditches along the sides of its roadbed except to connect with ditches, drains or watercourses..

Louis City- Circuit Court. — Eon. Daniel D.- Fisher, Judge. ; Plaintiff’s petition does not state facts sufficient to constitute a cause of action against defendant. The petition does not allege any exclusive proprietary interest in plaintiff of the phrase uStopurkicken.” Reach Co. v. Hardware Co., 155 Mo. App. 412; Asphalt Co. v. Paint Co., 163 Fed. 977.

W. B. Homer, Judge. Appeál from St. Louis City Circuit Court. — Hon. (1) The court erred in, giving plaintiff’s instruction No. 2, in that said instruction fails to limit the amount of plaintiff’s recovery for medical attendance and medicine to the sum pleaded in her petition, to*wit, $100. Smoot v. Kansas City, 194 Mo. 513; Heinz v. Railroad, 143 Mo. App. 38; Shinn v. Railroad, 146 Mo.

Louis City Circuit Court. — Bon. George B. Shields, Judge. (1) An appeal may be taken from any final order, ■either at the time or after final judgment has been entered. R.- S. 1909, sec. 2038; Padgett v. Smith, 206 Mo. 331. (2) The order setting aside the sale was á final judgment as to the matter decided, and appellant was aggrieved thereby. R. S. 1909, see. 2038; State ex rel. v. Bland, 197 Mo. 197, 215.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) The provision of the constitution and laws of appellant, and printed in the beneficiary certificate in issue, that a member failing to pay his assessments and dues on or before the last day of the month in which they are payable, should thereby become suspended, was self-executing, and required no affirmative action on the part of appellant. Boyce v. Royal Circle, 99 Mo. App. 349; Same case, 104 Mo.

— Mon. Peter M. Muck, Judge. (1) Plaintiffs were not deceived by Squires or Smith, nor was any fraud practiced in order to obtain title to their land. So far as the two properties were concerned, after clearing mortgages and liens, there was practically no difference in value between them. '(2) Even though it should be conceded that the Camrens were cheated in the trade, they bought with their eyes open.

Louis City Circuit Court.— Ron. Geo. H. Shields, Judge. (1) The curator herein was lawfully appointed and the St. Louis Prohate Court acted entirely within its jurisdiction in making the appointment. See. 3488, R. S. 1899 (under which it was then proceeding) now Sec. 414, R. S. 1909'. (2) But even if this were not so, the judgment of a probate court is not open to collateral attack.

Habeas Corpus. Original Proceeding, (1) The affidavits filed by plaintiff praying for an examination of the judgment debtor are insufficient to support the order of March 10, 1913, because they do not state facts sufficient to entitle plaintiff to such order.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The court erred in giving plaintiff’s instruction No. 4, in that it was error to authorize plaintiff to recover “compensation for time (if any) plaintiff himself was compelled to spend in attending and caring for his said wife, by reason of said injuries.” (a) Because there was no proof that plaintiff suffered any damage as a result of spending time in attending and caring for his wife.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The burden of proof was on the plaintiff below to show that the death of insured was caused by bodily injury effected through external, violent and accidental means and that this alone caused his death. Masonic Assn. v. Shryock, 73 Fed. 774; Laessig v. Assn., 169 Mo. 272; Ins. Co. v. McConkey, 127 U. S. 661; Stanton v. Ins.

<p>Mandamus, Original Proceeding.</p>

<p>1. NEW TRIAL: Practice, Trial: Power of Judge to Grant. Where one new trial has been granted on the ground that the verdict is against the weight of the evidence, the court has no power to grant another new trial on that same ground. And the fact that misconduct of the jury in the first trial was given as an additional reason for setting that verdict aside will not change the rule.</p> <p>2. -: -: -: Attempt to Influence the Jury. But where the second verdict is set aside by the trial judge because it was clearly proven to him that an atempt to improperly reach and influence the jury was made, and the circumstances are so suspicious, in the opinion of the trial judge, that such attempt was not only made but was accomplished, that he is led to set aside the verdict on that ground, the fact that he took into consideration that the verdict was against the weight of the evidence as-a circumstance tending to confirm him in such view, will not take away from him the power to set aside the second verdict and grant a new trial. In such event the verdict may be said, in legal effect, to indicate misbehavior on the part of the jury, and so bring the case within one of the exceptions contained in the statute forbidding the granting of more than one new trial.</p> <p>3. -: -: -: Discretion of the Trial Judge. - Where a verdict is set aside by the trial judge because he is of the opinion improper influences have been exerted, sound public policy requires the appellate court to uphold his action if possible. The trial court is in a better position than anyone else to see and know what is going on, and his action in granting or refusing a new trial ought to be followed if the trial judge exercised his own judgment and did not clearly display a wholly unsound discretion.</p>

<p>1. LIFE INSURANCE: Terms of Application: Beneficiary. The plaintiff, a minor, brought suit by next friend on two policies of ordinary life insurance issued to her mother by the defendant. The mother died and defendant refused to pay the policies on the ground that neither policy had been delivered to the assured and that the minor plaintiff was not the beneficiary of either policy. Held, that the plaintiff properly recovered for the value of the two policies.</p> <p>2. -: -: -: Waiver. A party has the right in an application for insurance to stipulate when and under what conditions the contract shall go into effect, and where the application provides that the insurer shall not become liable as such until the payment of the initial premium and the delivery of the policy to the assured, such provision will be enforced and no recovery will be allowed against the company if the death of the applicant occurs while such condition's remain unperformed. But a stipulation of this character being primarily for the benefit of the company may be waived by the company either by subsequent express agreement or by the conduct of the parties bespeaking a mutual intention to disregard it and to treat it as inoperative.</p> <p>3. -: -r-: -: Death of Applicant. There is no contract of insurance if the party insured reserved the right to accept or reject the policies when they were presented to him and he dies before he exercised that option.</p> <p>4. -: -: Change of Beneficiaries. Where policies of insurance erroneously designate a beneficiary and the parties to the contracts agree to a change of beneficiary before the delivery of the policy and' payment of the premiums, for the purpose of correcting the error, there is not a technical change of beneficiaries within the meaning of the terms of the policy but merely the designation of the beneficiary named in the applicant’s proposal.</p>

<p>1. TAX BILLS: Preliminary Resolution: Implication of Law. When the preliminary resolution for paving a public street, and the plans and specifications to which it refers, are silent on the subject of grading, the law will imply a duty on the part of the city to furnish a graded street to the contractor and a property owner would not be justified in thinking that the burden of such duty was included in the work proposed by the, resolution.</p> <p>2. --: -: Specification of Time in Contract. The failure of an ordinance to fix the time for the completion of the paving of a street does not invalidate the ordinance and the tax bills issued in payment of such work are not void because of long delay in letting the contract for the doing of the work, if the contract was in compliance with the ordinance and the work was done and completed in compliance with the contract.</p> <p>3. -: -: Condition Precedent. Where the charter and ordinances of Kansas City, in force at the time a resolution is passed to pave a street, does not make the filing of a preliminary estimate of the cost of the improvement a condition precedent to the enactment of the ordinance for the improvement, or the letting of the contract, then the tax hills issued for such improvement are not void because of the failure to-file such preliminary estimate. ...</p> <p>4. --: Guaranty to Repair. Where a contractor breaches his guaranty to keep the pavement in good repair, he becomes liable on his bond to respond in damages, but such1 a breach could not affect the validity of the tax bills issued in payment of the cost of the pavement.</p>

<p>1. CARRIERS OF LIVE STOCK: Damages: Delayed Shipment: Federal Law. The plaintiff sued to recover damages for a delayed shipment of cattle over the defendant’s railroad. The cattle were received at Stewartsville to be shipped to Chicago. The defendants unloaded the cattle at Galesburg in order to feed and water them, as they were compelled to do under the Federal “twenty-eight hour” law, unless the shipper otherwise specified in writing, which he did not do. Held, that the delay was caused by the action of plaintiff in electing to have the cattle unloaded at Galesburg, and not by any negligence of the defendant.</p> <p>2. -: -: United States Statutes. The U. S. Comp. Stat, pp. 1178-79, provides that no railroad shall confine live stock in cars for a period longer than twenty-eight consecutive hours without unloading the same in a humane manner into properly equipped pens for rest, water and feeding for a period of at least five consecutive hours, provided that upon the written request of the owner, which written request shall be separate and apart from a printed bill of lading or other railroad form, the time of confinement may be extended to thirty-six hours.</p> <p>3. —:-: —s-: -: -: Burden of Proof. In order to recover the damages sustained in consequence of delay in the transportation of a shipment the burden is on the plaintiff to show not only an unusual delay but that such delay was caused by negligence of- defendant. Negligence is the gravamen of the action and the rule is well settled that mere proof of delay, of itself, will not support an inference of negligence.</p>

<p>1. MECHANIC’S LIENS: Entire or Separate Contracts. Plaintiff contracted with an owner to furnish materials for a building and to deliver them when ordered and as needed. There was no lump sum agreed upon nor time stated when the account should cease, nor was the -sale made with reference to any architect’s plans of the building. The goods were furnished on a running account with reasonable regularity for nearly a year and up until May. . From this time until the following October no materials were ordered or used. The building was not completed in May but the owner ceased operations for lack of money to run his business. Having succeeded in leasing the building in October the owner ordered further materials which were furnished and charged to the account and used in finishing the building. There was no refusal to extend credit further on the part of plaintiff and no closing of the account between the parties. Held, that the last items charged in October were not sold under a different contract but the whole account was under one entire general contract, so as to give plaintiff six months from the date of the last items in which to file his lien. The fact that the owner volunteered to pay cash for certain other items not included in the account and did pay cash for them will not change the contract as to subsequent items sold on credit as before unless the vendor refused to sell longer on the old contract.</p> <p>2. --: -. Where the evidence is conflicting, or where the. circumstances are such as that different inferences may be drawn from the same facts, the question whether goods are. sold under one or under different contracts is for the jury. But where there is no dispute as to the facts, the question is one of law for the court.</p> <p>3. -: -: Running Account. A running account is a mutual account between buyer and seller in which is charged from time to time, as ordered, the materials sold, and on which is entered the various credits to which the seller is entitled.</p> <p>4. -: -. If the work to be done is distinct and separate in its nature, and is performed at different times, or if two different contracts are in fact made for different parts of tbe work, these are marks to show that there was not one entire general contract covering the whole account. But if material is furnished all going to the same general purpose, though such work be done or ordered at different times, yet if the several parts form an entire whole, or are so connected together as to show that the parties had it in contemplation that the whole should form but one and not distinct matters of settlements the whole account must be treated as a unit.</p>

<p>1. ACCOUNTS: Proof: Value. In an action on an itemized account if there is no proof of the value of the items the case •must fail, even though it is shown the items were furnished.</p> <p>2. -: -: -: Conversion: Value. Even if an action on an itemized acc.ount can be considered as a statement in conversion before a justice of the peace, there must be some evidence of the value of the thing converted.</p>

<p>1. CONTRACT: Pleading: Modification. In an action on a contract which has been modied, the petition should declare on the contract as modified.</p> <p>2. -: --:--: Variance. Where a petition declares on ■ a certain specific contract and the evidence shows another substantially different agreement, there is a fatal variance.</p> <p>3. -: -: New Matter: Plaintiff's Showing: Avoidance. Where the contract in suit once existed, but hás been avoided by matter subsequently arising, this is new matter and must be pleaded by the defendant. But though the contract once existed, if it shows on its face that it has been avoided, as, for instance, if the time for its performance has expired, or if the plaintiff himself shows by evidence that it has been avoided, his case fails and there is no necessity for defendant pleading the avoidance.</p>

<p>Appeal from Mercer Circuit Court. — lion. Geo. W. Wanamalcer, Judge.</p>

<p>1. TELEGRAPH AND TELEPHONES: Delay: Rise In Price: Measure of Damages. A telegram sent from Kirksville, Missouri, to Romeo, Michigan, directed a person at the latter place to buy 600 bushels of potatoes at fifty cents per bushel and ship to the senders at Kirksville. The telegram was negligently delayed in delivery for two days, when potatoes had risen in price to eighty cents per bushel. It was held that on proof that the potatoes could and would have been bought at fifty cents if the message had been delivered, and that the price had advanced when it was delivered, the telegraph company would be liable for damages measured by the difference in price at the place of purchase.</p> <p>2. -: -: Negligence: Necessity for Purchase. While generally it is true that a telegraph company negligently failing to deliver a telegram directing the purchase of merchandise, is liable for the difference in price at which the articles could have been purchased had there been prompt delivery, and the advanced price at which they were afterwards purchased— yet it is not necessary that a purchase be afterwards made, unless it will save or reduce the damages. For, if it be shown that a purchase would have been made at the lesser price If there had been prompt delivery and that when the belated delivery was made the price had risen, the difference between these will be a basis for assessment of damages for his loss in not obtaining the article at the lesser price.</p> <p>3. -: -: --: Loss of Profits. A telegraph company is not liable for loss of profits which might have been made out of collateral transactions, or which depend upon uncertain events. But if it is shown that merchandise ordered to be purchased by a telegraphic message were known to be intended for resale at a profit and that they could have been sold at such profit, a liability will accrue against the company.</p> <p>4. -: -: -: -: Information on Face of Telegram. The following telegram was sent from Kirksville, Missouri, to Romeo, Michigan, and was negligently delayed in delivery, viz.: “If freight rate does not exceed fifty cents per hundred buy five or six hundred bushels of potatoes at fifty cents, if good. Make draft on us with bill of lading attached. Wire as soon as bought.” Held, that the message conveyed information to .the company, on its face, that the potatoes were desired to be purchased and shipped to Kirksville immediately and that they were intended for resale at a profit, and that the company was liable for the profit definitely shown could have been made.</p>

<p>1. NEGLIGENCE: Coal Mines: Drivers. The plaintiff sued to recover personal injuries sustained while being employed as a driver in the defendant’s coal mine. The mine is what is known as a drift mine. The plaintiff drove in a load of empty cars, and proceeded to hitch his. mule to a loaded train, which was beyond the empty train. Befo're he started out another driver dumped his empty train on top of the one that the plaintiff left, leaving one of the cars obstructing the track. The lights were very dim on account of the bad air in the mine and the plaintiff on his outward journey with his loaded train failed to see the obstructing car and his foot was crushed between it and the one on which he was riding. Held, that the demurrer to the evidence was properly overruled, the question of contributory negligence being an issue of fact for the jury to determine.</p> <p>2. EVIDENCE: Contributory Negligence: Illumination. It is not error to admit evidence tending to show that there was bad air in the mine which greatly diminished the illuminating power of the lights carried by the miners and those maintained in the mine by defendant, when such evidence has' a direct bearing on the issue of contributory negligence.</p> <p>3. -: Relevant and Material: Admissibility. Evidence that is competent, relevant and material on a contested issue is always admissible whether or not it would tend to support a different cause from that pleaded in the petition. The proper practice is to admit the evidence and by instruction restrict its scope to the issues máde by the pleadings.</p> <p>4. INSTRUCTIONS: Facts not Essential: Reversal of Judgment. Where an instruction requires .a plaintiff to establish a fact not essential nor even pertinent to his cause of action it is error, but if it is against the plaintiff alone and harmless, it does not constitute a good ground for the reversal of a judgment.</p>

<p>Appeal from Livingston Circuit Court. — Eon. Arch B. Davis, Judge.</p>

<p>1. INJUNCTION, MANDATORY: Equity: Obstructions in Public Highway. The defendant was indicted and convicted for obstructing a public road. He paid the penalty imposed but did not remove the obstruction and this action was instituted by the prosecuting attorney to enforce its removal. The defendant, the owner of a farm, erected a fence eight or ten feet outside of Iiis property line and on the adjacent public highway. Held, that the power and jurisdiction of a court of equity to give speedy and complete relief to the public in such case cannot be successfully questioned.</p> <p>2. -: -: Public Nuisance. A prosecuting attorney is authorized by law to prosecute an action in equity in behalf of the State to enjoin a public nuisance, notwithstanding the existence of other civil and criminal remedies.</p> <p>3. --: -: Criminal Laws. A court of equity will not undertake to enforce the criminal laws; therefore it will not enjoin the commission of a threatened act merely because the act would be a crime, but, on the other hand, neither will it withhold its equitable relief in a case in which for other reasons it has jurisdiction, merely because the act when committed would be a crime.</p>

<p>Appeal from Adair Circuit Court. — Hon. Nat M. Shelton, Judge.</p>

<p>1. DRAMSHOPS: Granting License: Judicial Act. The power or jurisdiction to grant saloon licenses is vested exclusively in the county court, and, in passing upon an application for a saloon license, the court acts judicially.</p> <p>2. -: -•: -: Two-thirds Petition. The matter of hearing and passing upon an application for a saloon license is judicial whether the applicant claims to have a majority or a two-thirds majority of the persons in the block qualified to sign. Whether an' act is ministerial or judicial depends upon the nature and character of the act and the things necessarily involved therein and not upon the allegation in appellant’s petition.</p> <p>3. --: Mandamus: To Compel Granting of License. Where . the record shows that the county court entertained relator’s petition for a license and, after listening to the evidence, found that relator’s petition did not contain a two-thirds majority of the required signers, and, on this account, refused to grant the license, mandamus will not lie. And where the petition for the. writ and the alternative writ show on their faces the existence of such finding by the county court adverse to relator, they state no cause of action.</p> <p>4. -: -: Decision of Preliminary Question. Even upon the theory that such finding is upon a preliminary matter to be determined before the right to act arises, the decision of the county court on such preliminary question of fact, which involves the hearing of evidence and the formation of belief in regard thereto and the reaching of a conclusion thereon both as to fact and law, cannot be reviewed by mandamus because the general nature of the duty to be performed is judicial, and the law intends that such decision shall be final.</p> <p>5. -: —;--: When Mandamus Will Lie. It is only when the county court refuses to hear the application, or when it has found in relator’s favor every fact necessary to the granting of the license, and yet refuses to issue the license, that mandamus will lie.</p>

<p>Appeal from Moniteau Circuit Court. — Eon. J. G. Slate, Judge.</p>

<p>Appeal from Pettis Circuit Court. — Hon. H. B. Bhain, Judge.</p>

<p>1. PRACTICE, APPELLATE: Exception to Overruling of Motion for New Trial. When appellant’s abstract of the record fails to show the taking or preservation of any exception to the overruling of the motion for new trial, there is nothing before the appellate court except the record proper.</p> <p>2. -: -: Place of. An exception to the overruling óf a motion for new trial is not a part of the record proper and must, therefore, be preserved in the bill of exceptions. Putting such exception in the record proper does not preserve it.</p> <p>3. -: -: Supplemental Abstract. Where appellant’s original abstract fails to show an exception to the overruling of the motion for new trial, such defect cannot be cured by a supplemental abstract filed after respondents had filed their brief suggesting the defect, and after the date on which appellant was required to file his original abstract.</p> <p>4. --: -. Even if the supplemental abstract herein could be considered, it would not cure the defect since it still fails to show that the bill of exceptions contains such exception.</p>

— Hon. Ralph S. Latshaw, Judge. The school district of Kansas City is an independent public governmental corporation, and has the sole and exclusive power to provide heating apparatus, of such kind as it may determine, for its school houses, and has the sole power to employ janitors or firemen or other servants, and to prescribe their powers, duties and compensation, and therefore, necessarily, their qualifications. • Hence, the city has no power or control whatever, over…

<p>1. CONTRACTS: Usury: Law Governing. The place of performance of. a contract, in the absence of an attempt to evade the laws, furnishes the law governing its terms. So, where a chattel mortgage and notes secured thereby were payable in ' Missouri, were sent to Missouri for collection, and the only one paid was paid in Missouri, they will be considered Missouri contracts, although signed in Kansas, and the Missouri laws against usury will be applicable thereto. Especially is this true where the notes and mortgage were executed pursuant to a contract made in Missouri for the purchase of a machine delivered, located, and used in Missouri, and there is nothing to show that the parties had any thought of contracting with reference to .the laws of any other state.</p> <p>2. -: -: Intent of Parties. When there is nothing in the contract saying specifically what state shall govern the contract, it may be inferred from all the terms of the contract taken in connection with all the circumstances surrounding the transactions. While the residence of a party to a contract is, or may be, a significant fact, in determining what law the parties had in view, yet it is only a fact to be considered with other facts bearing on that question.</p> <p>3. -: -: Jury Question: Directed Verdict. Although the question as to what law should govern a contract may sometimes depend upon the intent of the parties, yet this does not require the submission of the question to a jury where all the facts are admitted, and but one inference can be drawn from them.</p> <p>4. -: Notes Bearing Unlawful Rate After Maturity. Our statutes forbid the taking of more than eight per cent per annum as interest. And, as such statutes make interest include any sum taken, directly or indirectly, for “forbearance” as well as for the “use” of money, a note bearing a lawful rate before maturity and an unlawful rate after that time, becomes usurious if forbearance is exercised and the unlawful rate is charged or exacted. If the sum charged or exacted for the use of money loaned exceed the legal interest, it is usury no matter what words it may be clothed in.</p>

<p>1. EXECUTORS AND ADMINISTRATORS: Estates: Claim for Services. Tbe -plaintiffs instituted tbis suit to recover from . tbe executor, compensation for services rendered to tbe deceased, during bis life time. Tbe deceased lived at tbe borne of plaintiffs, one of whom was a daughter, during tbe latter period of bis life with tbe understanding that be would compensate tbem tberefor. Held, tbat a plaintiff must recover, if at all, upon a contract either express or implied and in the absence of a showing of the existence of a mutual intention or understanding, that the services were not to be gratuitous, there can be no recovery.</p> <p>2. -: -: -: Joinder of Parties. Where a husband and wife -rendered services to the parent of the latter, under an implied agreement that the services were not to be gratuitous,' they might join in an action to enforce such a contract.</p> <p>3. INSTRUCTIONS: Undisputed Facts. An instruction is erroneous which directs a verdict on a claim for pasturing and boarding a horse on the mere finding by the jury of the fact (not undisputed) that plaintiff did render such services.</p> <p>4. -. An instruction, which tells the jury to return a verdict for plaintiffs, on the finding that they intended to charge for the valuable services they were to render without requiring the jury to find further that deceased was aware of their intention and on his part intended to pay for such services, is erroneous.</p>

<p>1. BANKRUPTCY: Preferred Creditors: Voidable Preference. In order for the trustee of a bankrupt to recover the amount of a voidable preference of creditors four elemental facts must combine. First, the insolvency of the debtor at the time of the preference; second, the giving of the preference within four months of the petition in bankruptcy; third, the effect of securing to the favored creditor a greater percentage of his debt than other creditors of the same class may obtain from the estate of the debtor; and fourth, that the preferred creditor, when he received the preference knew or had reasonable cause to believe that it was the purpose of his debtor to give him a preference over the creditors of the same class.</p> <p>2. —;-:--: Natural Presumptions. When a debtor pays and a creditor receives the amount of a just debt, the natural presumptions are in favor of the good faith of the transaction. Merchants and other business men- constantly continue to make payments up to the very eve of failure, and it would be disastrous to have them set aside on slight proof or mere suspicion.</p> <p>3. -: -: Knowledge of Creditor. The creditor is not to be charged with knowledge of his debtor’s financial condition from mere suspicion in his mind of possible insolvency, nor is it essential that the creditor should have actual knowledge of or believe in his debtor’s insolvency, but he should have reasonable cause to believe his debtor to be insolvent. If facts and circumstances, with respect to the debtor’s financial condition, are brought home to him, such as would. put an ordinary prudent man upon inquiry, the creditor is chargeable with knowledge of the facts which such inquiry should reasonably be expected to disclose.</p> <p>4. DEFINITIONS: Insolvency. By insolvency, with reference to a person, is meant not one who “was unable to pay his debts as they become due in the ordinary course of his daily transactions” but one whose property “shall not at a fair valuation, be sufficient in amount to pay his debts.”</p>

<p>Appeal from Buchanan Circuit Court. — Hon. Chas. H. Mayer, Judge.</p>

<p>1. FIRE INSURANCE: Damages: Valuation of Property. The plaintiff, an insurance company, issued a policy of fire insurance to a corporation engaged in mining coal. The policy covered a large number of “company or camp houses” each valued at $240. A passing- engine on defendant’s railroad set fire to and destroyed ten of these houses and damaged others to the extent of $25. The plaintiff paid the coal company, and received an assignment of its claim against the railroad company. This action is to enforce the claim against the latter. Held, that the defendant’s liability, either to the coal company or its subrogated insurer, was the actual value of the destroyed and damaged property at the time of the fire.</p> <p>2. --: -: -: Statute. Under Sec. 3151, R. S. 1909, a railroad company by setting out a fire is liable to the owner for the actual damages sustained for all property destroyed. But under Sec. 7020', R. S. 1909, the liability of an insurance company, as the insurer of property is not valued by the actual value of the property destroyed by the fire, but by the value stated in the contract of insurance. ’</p> <p>3. -: -: Privity of Contract. While there is not privity of- contract between the railroad company and the insurance company, yet the insurer is practically the surety for the railroad company, the principal. And wherever the insurer has indemnified the owner for the loss, he is entitled to all the means of indemnity which the satisfied owner held against the party primarily liable.</p> <p>4. -: Evidence: Similar Property: Aid to Jury. The evidence of sales of a similar property to that in guestion, made in the neighborhood, about the same time, was admissible to aid the jury in determining the damages done by the fire to which .the owner was entitled.</p> <p>5. DEFINITIONS: Reasonable Worth or Value. “Reasonable worth” or “reasonable value” are terms which have a definite and common meaning to people of ordinary information and understanding, and their use in. instructions relating to the issue of the market value of property should not be condemned as reversible error.</p> <p>6. MOTIONS: Retaxing of Costs: Statute. Under Sec. 1965, R. S. 1909, a motion of the defendant to retax costs, being filed at the term the judgment w;as rendered, was timely and- was properly sustained.</p>

<p>Appeal from Andrew Circuit Court. — Eon. A. D. Burnes, Judge.</p> <p>(1) Negligence is a positive wrong and must be proven. Cunningham v. Railroad, 167 Mo. App. 273; Lay v. Railroad, 157 Mo. App. 468, 138 S. W. 884; Decker v. Railway Co., 149 Mo. App. 534. (2) Mere delay in shipment does not establish negligence. McDowell v. Railroad, 167 Mo. App. 273; Lay v. Railroad, 157 Mo. App. 468, 138 S. W. 884; Decker v. Railway Co., 149 Mo. App. 534; Clark v. Railroad Co., 138 Mo. App. 424; Eaton v. Railroad Co., 125 Mo. App. 223; Otrich v. Railroad Co., 154 Mo. App. 420. (3) The court should have-instructed the jury to find for defendant. Clark v. Railroad, 138 Mo. App. 424-; Eton v. Railroad, 125 Mo. App. 223; Witting v. Railroad, 101 Mo. 631.</p> <p>(1) Negligence is the want of care and diligence. (2) Mere delay in shipment does not establish negligence yet where the fact of delay is supplemented by evidence of the cause, it may show that it was negligence. Wright v. Railroad, 118 Mo. App. 392; Bushnell v. Railroad, 118 Mo. App. 618; Lay v. Railroad, 157 Mo. App. 468; Muir v. Railroad, 168 Mo. App. 542. (3) Negligence may be inferred from circumstances. Muir v. Railroad, 168 Mo. App. 542; Bushnell v. Railroad, 118 Mo. App. 618; Gilbert v. Railroad, 132 Mo. App. 697; Decker v. Railroad, 149 Mo. App. 534; Anderson v. Railroad, 93 Mo. App. 677.</p>

<p>1. NEW TRIAL: Evidence. When a new trial is granted and tbe party obtaining tbe verdict appeals, an appellate court will' take tbe facts to be wbat tbe evidence in favor of sucb party tends to show them.</p> <p>2. PARTNERSHIP: Evidence. Evidence that tbe parties charged as partners went to tbe plaintiff’s place of business and stated tbat they were intending to organize a corporation, but until they did so, they would act as partners, and tbat one of tbeir' number would be tbeir field manager and would purchase . supplies of plaintiff; it was held, tbat this was evidence to justify a verdict tbat they were partners and were liable for supplies afterwards purchased.</p> <p>3. AGENCY: Evidence: Declarations. One’s declarations without more, tbat be is an agent for others is not competent against such others. But if tbe agency is established prima facie, by other testimony, then bis declarations are admissible, and be is a competent witness in establishing a prima facie agency.</p> <p>4. PARTNERSHIP: Holding Out. A partnership may he shown to exist in fact, or hy a holding out as such and either instance will suffice to hold it liable for obligations incurred.</p> <p>5. -: Fraud of One Partner. Evidence that one of several partners induced them to enter the. partnership hy fraudulent misrepresentations is not admissible against a claim for goods purchased by such partner of one who did not know of the fraud.</p> <p>6. PLEADING: Partnership: Individual’s Action. A person having a demand against a partnership may, under the statute, sue any or all of the partners, and aver in his petition that the contract is that of the defendants and to prove this averment he may prove the contract was made for the partners through an agent, and that agent may be one of the partners.</p> <p>7. '-: Prima Facie Case: Declarations: Witness. After evidence has been given establishing, prima facie, that a partnership exist, the declarations and admissions of one of the alleged partners is proper evidence; and such partner is a competent witness.</p> <p>8. -. A partnership bought goods of another through one of its members, and informed the seller that bills should be sent to the purchasing partner which he would approve and forward to the other partners who would pay the amount; it was held that this was not evidence that it was necessary that the seller must procure such approval before he had a right of action. It was merely a statement of a mode of payment.</p>

<p>Appeal from Clay Circuit Court. — Hon. Francis H. Trimble, Judge.</p>

<p>1. PARTITION: Deed Inter Partes: Husband and Wife: Title. ■Where two heirs own inherited land as tenants in common and they partition it by making deeds to each other of the parts agreed upon, one of them making his deed to the other and her husband, the latter does not get any title. The deed only conveys what was already the wife’s and it only operates to set off the boundaries to her.</p> <p>2. -: Occupancy: Notice: Substituted Plaintiff. If one has notice of a tenant’s occupancy at the time of his purchase of land, he is chargeable with notice of the tenant’s rights. And if he seeks to oust the tenant by ejectment, and dies after action brought and his heir is substituted as plaintiff in his place and she carries bn the suit, she stands in his shoes and is chargeable with the same notice.</p> <p>3. HUSBAND AND WIFE: Separate Property: Consent: Divorce. Though in order to be effectual under the statute, a wife’s consent to her husband’s leasing her land and collecting the rent must be in writing, yet she may, after divorce from him, be bound by her acts of recognition of the lease and the tenant.</p> <p>4. TENANT: Notice to Quit. A tenant at will is entitled to thirty days’ notice to quit, and if it is not given he may successfully defend a possessory action for the premises.</p> <p>5. -: -: -: Pleading: Landlord’s Title. Where a petition by a landlord does not set up a claim of title, but merely a right to possession, an answer containing only a general denial is not a denial of the landlord’s title.</p>

<p>Appeal from Cooper Circuit Court. — Hon. J. G. Slate, Judge.</p>

<p>1. NEGLIGENCE: Railroads: Overhead Crossing. Where a railroad crosses or runs parallel to a public road or street the trainmen owe no' duty to refrain from making usual and necessary noises incident to the proper and safe operation of a train but to be within the bounds of reasonable care, which is the test of duty, must not operate it in an unusual or unnecessary way and thereby endanger the safety of travelers on the highway.</p> <p>2. -: -: -: Negligence per se. It is not negligence per se for the whistle of' a running locomotive to be sounded under a highway bridge, but engineers should not sound the whistle, when passing under a bridge where horses and vehicles are likely to be passing over at any time.</p>

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

<p>Appeal from Nodaway Circuit Court. — Hon. Wm. C. Ellison, Judge.</p>

<p>1. JUDGMENTS: Equity: Res Adjudicata. Where the issues sought to be raised as a defense to a suit brought in this State on a judgment rendered and revived in another State, were raised and litigated between the same parties in an equity suit brought to subject defendant’s property to such judgment, the adjudication of such issues in the equity suit is conclusive, not only as to the matters of defense pleaded in such equity suit, but also as to every matter properly belonging to the subject in litigation and which defendant might, by exercising reasonable diligence, have brought forward at the time. And such issues cannot be again raised as a defense to a suit on the former judgment. They have become res adjudicata.</p> <p>2. -: -: Failure to Make Defense. . When one fails to make all the defenses he is called upon by the nature of the proceedings to make, such failure is as effective in a subsequent suit to prevent him from insisting upon them as if they had in the former suit been pleaded and been adjudged adversely to him.</p> <p>3. -: -: Judgment of Revivor. An adjudication of revivor is res adjudicata as to all matters which were or might have beene set up in the proceedings to revive.</p> <p>4. -: -: Power of Equity. If a defense exists at the time judgment is rendered, and could with reasonable diligence have been set up at that time, then even equity will not interfere to destroy the judgment.</p>

<p>1. TAX BILLS: Street Improvements: Petition for: Authority to Bind Corporate Owner. The law authorizing street improvements to be made upon the presentation of a petition signed by the owners of a majority of the front feet abutting on the street to be improved does not require the names of the owners to be signed in any particular way, nor that the authority to sign shall appear on the face of the petition, or be shown by any particular kind of evidence. An officer of a corporation must be authorized to sign the petition in order to bind the corporation. He has no authority, by virtue of his office, to bind the corporate owner. The authority to bind, however, does not have to be shown by a formal resolution passed by the board of directors. Authority to sign may be shown- by evidence that the Board of Directors had placed all business in the hands of the officer, that he had signed similar petitions for street improvements and the directors knew of it and made no objection thereto. In fact, the authority to sign may be shown by any evidence that would be sufficient to show authority in the agent to do any other act which he could not do merely by virtue of his office.</p> <p>2; -:--: Evidence: Burden of Proof: Whether Signed by Owners of Requisite Number of Front Feet. Where the petition for the improvement states that it is signed by the owners of the requisite number of front feet, and the municipal authorities have so found and have acted on the petition on its merits, such record is not conclusive on this point, but it is prima facie evidence of such fact, and throws the burden of proving that the petition was not so signed upon the party who asserts that fact.</p> <p>3. -: -: -: -. In this case the evidence offered to show that the officer signing the corporate name to the petition-did in fact have such authority as would and did bind the corporation, is reviewed and held sufficient to bind it.</p>

<p>Appeal from Callaway Circuit Court. — Hon. D. H. Harris, Judge.</p>

<p>Appeal from 'Buchanan Circuit Court.- — Hon. C. H. Mayer, Judge.</p>

<p>1. INSANE PERSONS: Judgment: Notice: Collateral Attack. A judgment of the probate court adjudging a person to be insane which shows that such person was never notified of the proceedings is void, notwithstanding it notes that he was confined in an asylum, and may be collaterally attacked; and the appointment of a guardian is likewise void.</p> <p>2. --: Restoration Proceeding. The fact- that an insane person, after several years, is restored and proceedings were then begun in the probate court to have him declared sane and his guardian discharged of which he has no notice and with which the only connection he was shown to have was that he was in court as a witness, is not an admission of the validity of the original proceeding which declared him insane without notice.</p> <p>3. -: Guardian and Ward: Expenditures: Collateral Kin. A guardian of an insane person and the court under which he acts are not so restricted in administrating his estate as is an administrator. The court may authorize expenditures by the guardian, if the estate will justify it, which it is convinced the insane person would have done if in his right mind; and expenditures may be made in some instances for needy collateral heirs.</p> <p>4. --: Court’s Discretion: Intruding Guardian. While a guardian, under direction of a proper court, may make expenditures to collateral relatives and otherwise act as the court is convinced the insane person would if he had been in his right púnd, yet the instances in which the guardian may so administer the estate are those in which a court with jurisdiction has a supervision, over the guardian and in which its discretion will protect the estate, and do not extend to a guardian who intrudes himself into the guardianship.</p> <p>5. -: Intruding Guardian: Accounting: Necessaries. One who assumes to act as a guardian for an insane person, without a valid appointment, and who makes expenditures in behalf of his ward may have an accounting and be allowed as credits all expenditures for necessaries for the insane person and his family.</p> <p>6. --: ' Necessaries: Life Insurance Premiums: Children over Majority. Necessaries for the family of an insane person which a guardian may provide, do not include money given to a married son more than thirty years old; nor to a daughter for medical attention who was over twenty-one years of age and who was living to herself and earning her own living; nor' will it include burial expenses for such daughter. But payments of premiums on life insurance taken out by the insane person when in his right mind, are necessaries and should he allowed as a credit to one who acted as guardian under a void appointment.</p>

<p>1. NEGLIGENCE: Humanitarian Rule: Railroad Crossings. The plaintiff sued to recover damages for personal injuries sustained in a collision between the automobile in which he was riding and the defendant’s railroad train at a crossing on Franklin street near the defendant’s station in Kirksville. When he approached the crossing the driver of the automobile was going at the rate of four or five miles per hour and he failed to observe any train coming until he was within ten or twelve feet from the main track. The train was then about sixty feet away traveling at the rate of twenty miles per hour. It struck the automobile and plaintiff was injured. Held, that the plaintiff was not entitled to recover under the humanitarian doctrine.</p> <p>2: -: -: -. In order for tbe humanitarian doctrine to be applicable the traveler must not only be in actual peril but his peril must be apparent to one in the position of the operator of the threatening instrumentality while in the exercise of ordinary care and diligence.</p>

<p>Appeal from Howard Circuit Court. — Eon. A. E. Waller, Judge.</p>

<p>Appeal from Jackson Circuit Court. — Eon. Walter A. Powell, Judge.</p>

<p>1. FRATERNAL BENEFICIARY ASSOCIATIONS: Premuims: Suspension for Nonpayment. Where the by-laws, rules and regulations of a fraternal insurance order provides that failure to pay the specified monthly premiums on or before the last day of the current month shall cause the member to be suspended without further action of any kind, any member failing to pay. such monthly premiums is, ipso facto, suspended at midnight on the last day of said month and, if death occurs during such suspension, such member’s policy cannot participate in-any of the funds or benefits of the order, unless the. suspension and forfeiture caused thereby has been waived by thO company.</p> <p>2. -: -: -: -: Waiver. In the case at bar, waiver may be of two kinds, first, waiver of forfeiture by accepting and retaining premiums with knowledge of the facts constituting the forfeiture, or by retaining the premiums after receiving knowledge of the facts, and, second, waiver of the defense of forfeiture by failing to assert a forfeiture after a loss has occurred, and, with knowledge of such forfeiture, inducing the beneficiaries under the policy to go to trouble and expense in complying with the terms of the policy as if it were in force.</p> <p>3. -: -: -: -: -. Waiver, by acceptance of premiums, is not based on contract, but on estoppel of the company to insist upon conditions of the policy inconsistent with the acceptance or retention of the premiums. While waiver is a matter of intention,’ this means the intention the law will infer from a given course of conduct and not the mere purpose the insurer may have had in mind. Waiver arises from the doing of inconsistent acts. The intention to waive is gathered from what is done. And if a forfeiture has been once waived it cannot be subsequently revived and relied upon to defeat a recovery after a loss has happened.</p> <p>4. -: -:--: -: -. Where the rules prescribe that a member, suspended for failure to pay dues, may be reinstated without a health certificate upon payment of said dues at any time within sixty days from suspension, provided such member is in good health, the forfeiture caused by such delinquency and ill health is waived by the acceptance of premiums with knowledge - of- such ill health. And, if in addition to the above, the rules prescribe that a member, paying up delinquent dues, after the lapse of sixty days from suspension, shall furnish a medical certificate of good health, then the known acceptance of dues so paid, without requiring the health certificate, is a waiver of the ill health and of the forfeiture caused thereby.</p> <p>5. -: -: -: -: -. A waiver of a defense cannot be inferred from mere silence of the company. It is not obliged to do or say anything to make the forfeiture effectual. But if, after knowledge of the forfeiture, negotiations or transactions are had with the insured in which the company impliedly recognizes the continued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is waived as matter of law, and such waiver need not be based upon any new agreement or an estoppel.</p> <p>6. -: -: -: -: -: Evidence: Jury * Question. Where the issue is whether or not the company has followed a course of conduct which may be said to indicate waiver, the question of waiver is one for the jury. And where there is evidence from which waiver may be inferred the question must be left' to the jury.</p> <p>7. INSTRUCTIONS: Omission in. An instruction defining waiver, which was the real point at issue in the case, cannot be upheld where, on account of the omission therefrom of certain words, it is meaningless. In such case the argument made to the jury cannot be looked to in order to learn whether the jury were informed of what was its meaning. Instructions are difficult enough to understand without requiring the jury to guess at the meaning or at what was intended to he said in the instruction.</p>

<p>1. STATUTE OF FRAUDS: Original Undertaking not Within. Where a bank, upon the presentation of the checks of an athletic club refused to pay same because the club had no funds, was told by defendant that if it would pay out the money called for by the checks and others that had been given but not yet presented, he would himself pay them, and the bank, in sole reliance upon such promise, paid out the money sued for on such checks, defendant will be liable to the bank, as upon an original undertaking even though defendant’s promise was oral, since the Statute of Frauds does not apply in such case.</p> <p>2. -: -r-: What is Such an Undertaking. The agreement must be an express agreement on the part of defendant himself to pay, and not a promise to pay the club’s debt if it did not, and the money must have been paid out solely on the credit of such agreement and not on the strength of credit extended either in whole or in part to the club.</p> <p>3. -:--: -: Jury Question. If the agreement claimed by plaintiff .was an original undertaking, and not a promise to pay the debt of another, and credit was not in fact extended to the club, then the mere fact that, for convenience of bookkeeping, the checks . paid were kept on the books as an account of the club will not defeat plaintiff’s claim. Such fact is a circumstance bearing on the question whether credit was given to the club or not, but it is not conclusive of that fact. And it is for the jury to say whether defendant assumed the attitude of principal or stood merely as a security for the club. Where there is any evidence to show an original undertaking on the part of defendant to pay, the jury’s verdict finding that- it was such an undertaking cannot be overturned.</p> <p>4. -: -: -: Accepting Deed of Trust from Club Afterward. Such original undertaking is not destroyed nor is credit extended to the club by the acceptance afterward of a deed of trust from the club, where it clearly appears that the bank did not seek, but was offered, the deed of trust by the club, and it was known that it was very doubtful whether the deed of trust was of any value and was accepted by the bank merely on the condition that, if anything was realized over and above other liens, it would be accepted by the .bank to reduce the debt.</p>

<p>Appeal from Nodaway Circuit Court. — Hon. Wm. G. Ellison, Judge.</p>

<p>Appeal from Buchanan Circuit Court. — Eon. W. K. Amide, Judge.</p>

<p>1. STATUTE OF FRAUDS: Consideration: Verbal Promise. In order to take- a verbal promise out of tbe Statute of Frauds requiring an agreement to pay tbe debt of another to be in writing, there must be some consideration moving to the promissor, unless the original debtor is released and the debt discharged. . ,</p> <p>2. -: Discharge of Debt: Original Promise. Where a third party promises a creditor to pay an existing debt of his debtor if the creditor will release the debtor and discharge the' debt, and the creditor. agrees and does it, the promissor’s promise is an original undertaking and need not be in writing. In such case, the debt being discharged, there is no “debt of another person” and the Statute of Frauds does not apply.</p> <p>3. --: Demurrer: Procedure. A demurrer is not the proper procedure, to take advantage of the Statute of Frauds.</p>

<p>1. PRACTICE:, TRIAL: Instructions: Finding Conclusive. Where a jury is waived and cause submitted to the court without declarations of law, if there is any substantial evidence to support the finding it will he upheld on appeal; and if there is any theory of law under the evidence and pleading which will support the judgment it will he affirmed.</p> <p>2. BILLS AND NOTES: Payment: Burden. On a plea of payment, the notes being admitted, the burden is on the defendant to sustain his plea.</p>

<p>1. DIVORCE: Indignities: Evidence. Evidence of the wife’s conduct in receiving the visits of men in the absence of her husband, and corresponding with men, though falling short of proof of adultery, will sustain a charge of indignities and entitle- the husband to a divorce.</p> <p>2. -: Adultery: Indignities: Amendment: Evidence. Where a petition for divorce contained a charge of adultery and of indignities, the trial court may properly permit an amendment after the evidence is heard striking out the -adultery charge and making more specific the charge of indignities so as to conform to the proof. And in such case, it is not error to refuse to permit defendant to introduce further evidence.</p> <p>3. -: Amendment: .Reverification. In a divorce proceeding where an amended petition is filed. not setting up new causes, but merely amplifying those already alleged, it need not be re-verified by affidavit.</p>

<p>Appeal from Buchanan Circuit Court. — Hon. Wm. D. Bush, Judge.</p>

<p>1. DAMAGES: Railroads: Fences. When a railroad company negligently fails to maintain the kind of enclosure required by law, and, as a consequence of such negligence, an animal strays upon the track and is injured, the owner may recover damages thus inflicted upon him, though the manner of the injury may be outside the purview of the statutory remedies.</p> <p>2. -: -: -: Statute. Thé remedy provided in Sec. 3145, R. S. 1909, is not available to one whose horse was not injured by a locomotive or train, nor could he maintain an action under the succeeding section since his horse was not frightened or run by a passing locomotive or train.</p>

<p>Appeal from Cole Circuit Court. — Hon. J. O. Slate, Judge.</p>