Volume 175 — Missouri Appeal Reports

<p>1. MAINTENANCE: Husband and Wife. The wife is hound to follow the fortunes of her husband and to live where he chooses to live and in the style and manner he may adopt. But where a wife lives apart from her husband with his consent, she cannot be said to have abandoned him and he is bound to support her and will remain bound until she refuses to return to him upon his request.</p> <p>2. -: -: Express Averments. The objection to the omission from the petition of an express averment that the abandonment of plaintiff was without just cause is not deemed waived by answer to the merits, but a failure to demur to the petition does bring into play the rule of liberal construction, and, if it be found by a fair analysis of the facts alleged that the existence of the omitted fact must necessarily be inferred from them, the petition will not be held bad after verdict.</p>

Louis City Circuit Court. — Row. Daniel D. Fisher, Judge. (1) It does not destroy tbe continuity of an account, because a break occurs' between tbe items. Its continuance and running character would! turn on tbe intention of tbe parties. Vogel y. Kennedy, 127 Mo. App. 228.

— Hon. Wm. T. Ragland, Judge. (1) One of the conditions of the bill of lading was, that “claims for loss, damage or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after the delivery of the property; or, in case of failure to make delivery, then within four months after reasonable time of delivery has elapsed.

<p>Error to Stoddard Circuit Court. — Hon. W. 8. G. Walker, Judge.</p> <p>The petition did not state a cause of action. See. 2188, R. S. 1909, which gives priority to the claims of laborers under the conditions in that section described has no application to a ease where property covered by a mortgage has been seized by the mortgagee or to a case where á creditor has without legal process sold property belonging to a debtor and retained and applied the proceeds thereof in payment of his claim. R. S. 1909, sec. 2188; Fitzgerald v. Meyer, 65 Mo. App. 665; Wilkinson v. Patton, 29 Atl. 293.</p> <p>(1) The petition states a cause of action under Sec. 2188, R. S-. 1909, in that it alleges the debtor’s business was suspended by action of creditors, that defendant took possession, and that proper presentation was made by laborers to defendant for their lienable claims. (2) The presumption as to defendant’s possession, independent of any specific allegation in the petition, is that such possession was lawful, and the defendant cannot now be heard to profit by its own wrong, if its possession was not lawful. Chouteau v. Railroad, 122 Mo. 375; Cory v. Railroad, 108 Mo. 282; Bent v. Priest, 10 Mo. App. 543.</p>

— Hon. James D. Barnett, Judge. (1) If it conld be successfully asserted that there was substantial testimony that the conductor of this train did state to plaintiff that he would assist her in alighting at Bowling Green, still his failure to do so does not render the company liable because such an agreement on the part of the conductor would be a mere voluntary promise on his part outside the scope of his duties and employment and not binding upon the company.

<p>1. JURY: Competency of Juror: Bias or Prejudice. If a juror have such a bias or prejudice against a class of cases that his judgment will be warped, he should be set aside, but opinions formed which are not of a fixed character and which readily yield to evidence do not disqualify him.</p> <p>2. APPELLATE PRACTICE: Trial Practice: Jury: Con’clusiveness of Ruling as to Juror's Competency. The competency of a juror is a mixed question of law and fact. It is the province of the trial court to try the question of fact, and, while its finding thereon is not conclusive, on appeal, yet it ought not to be disturbed unless it is clearly against the evidence.</p> <p>3. JURY: Competency of Juror: Prejudice: Facts Stated. In an action against a street railway company for personal injuries, one of the jurors on his voir dire examination stated that two of his daughters had been, injured on defendant’s cars; that defendant settled with the daughters, hut refused to pay their doctor bill; that he felt that defendant didn’t do just right in refusing to pay such bill, and that, as a result, he had “a little” feeling of dislike toward it. He further stated, in response to questions propounded by the court, that this feeling would not influence him in his decision of the case. Held, that the juror’s “feeling” was not a deep-seated feeling or impression, sufficient to influence him in passing judgment upon the facts, and hence the trial court did not err in overruling defendant’s challenge for prejudice.</p> <p>4. PLEADING: Defective Petition: Waiver by Pleading Over. By answering over, the defendant waives whatever error was committed by the trial court in overruling a motion to require plaintiff to elect and to require him to make his petition more definite and certain, notwithstanding defendant duly preserved exceptions to such rulings.</p> <p>5. INSTRUCTIONS: No Evidence to Support: Damages. In an action for personal injuries, it is improper to instruct the jury that they may allow plaintiff damages for permanent injuries where the evidence does not tend to establish that his injuries are permanent.</p> <p>6. DAMAGES: Action for Personal Injuries: Permanent Injury: Sufficiency of Evidence. In an action for personal injuries, held, that under all the evidence respecting plaintiff’s condition before and after the injury, there was enough to warrant a finding that the injuries, to some extent, were reasonably certain to be permanent.</p> <p>7. APPELLATE PRACTICE: Harmless Error: Damages. In an action for personal injuries, where the amount awarded was not an excessive allowance for the injuries established by the evidence, the judgment will not be reversed, in view of Secs. 1850 and 2081, R. S. 1909, merely because, in the strict technical science of the law, the jury should not have been allowed to award damages for permanent injuries.</p>

— Hon. James D. ” Barnett, Judge. (1) Plaintiff has a right to maintain this action. He is a beneficiary in a trust fund. The former trustees have turned over part of the funds to the life tenant contrary to the provisions of the trust. The trustee refused to prosecute the action. Plaintiff, as the beneficial owner of the trust fund, is entitled to relief in equity. 22 Ency. PI. & Pr. 158; Edwards v. Welton, 25 Mo. 379; Butler v. Lawson, 72 Mo. 227.

— Hon. B. H, Dyer, Judge. The law implies no promise to pay for services rendered one member of a family by another, and services rendered merely on behalf of a mother by her daughter or the latter’s husband, in the absence of a prior promise of payment, will not constitute a valuable consideration, etc. Snyder v. Free, 114 Mo. 360; Bonsiek v. Boverschmidt, 63 Mo. App. 421.

— ífow. B. PL. Dyer, Judge. (1) Where a will expressly and absolutely directs the executor to sell the real estate without vesting any discretion in the executor and to apply the proceeds to the payment of debts or to distribute them, then the power adheres to the office of executor and is not personal, and must be exercised during the continuance of the executorship, for in such cases the proceeds of the sale of real estate become personal assets of the estate and are a…

Louis City Circuit Court. — Hon. William B. Homer, Judge. (1) The petition in this case is based upon section 3 of an Act of April 20, 1891 (Laws 1891, p. 162, now Sec. 7828, R. S. 1909), as amended in 1909, Laws 1909, p. 502.

Louis City Circuit Court. — Hon. William B. Homer, Judge. (1) The evidence in the case was insufficient to authorize a recovery on part of plaintiff, and the court should have so declared. Warner v. Railroad, 178 Mo. 133; Gumm v. Railroad, 145 Mo. App. 339; Green v. Railroad, 192 Mo. 143; Laun v. Railroad, 216 Mo. 579; Waggoner v. Railroad, 152 Mo. App. 179; Smart v. Kansas City, 91 Mo.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) Plaintiff’s instruction “0” given and read to the jury was erroneous in that it instructed the jury to allow the plaintiff interest on the sum sued for from the date of the suit to the date of the trial. Plaintiff’s petition did not demand nor pray for interest and it was, therefore, error to so charge when no interest was asked for. Farrell v. Insurance Co., 61 Mo. App. 153; Shockley v. Fischer, 21 Mo.

Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge. (1) A justice of the peace in the city of St. Louis has jurisdiction in unlawful detainer cases where the property is situated within his district.. See Secs. 7615, 7616 and 7617, R. S. 1909, which define the jurisdiction of justices of the peace of the city of St. Louis.

Charles Circuit Court. — Ho». James D. Barnett, Judge. As to whether it was necessary or desirable for the protection of the employees of defendant or for the convenient transaction of the business of appellant for the appellant to maintain open and without a cattle-guard the space between the west end or point of the switch and the place where the cattleguard had been taken out was a question for the jury. Brandenburg v. Railroad, 44 Mo. App. 223; Acord v. Railroad, 113 Mo.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. (1) Where an agent or broker is employed to sell lands by the owner thereof, finds a purchaser for the property and does everything which he agreed to do, and the trade fails, not on account of any default on his part or on the part of the purchaser, but because it is repudiated by the land owner, the agent, or broker, is entitled to his commissions. Harwood v. Dimer, 41 Mo. App. 49; Bailey v. Chapman, 40 Mo.

— Hon. James Barnett, Judge. (1) The court erred in overruling the demurrer to the evidence because it appears, from the testimony offered by plaintiff (which was all the testimony on that subject), that the injury to the machine resulted from collision of the machine with the gutter and roadbed, the gutter being a part of the roadbed within the meaning of the law; therefore the damage to plaintiff’s machine was not covered by the policy in this case, which expressly…

— Hon. R. 8. Ryors, Judge. (1) The court erred in admitting illegal and incompetent evidence offered by the plaintiff. The court, over the objections of defendant, allowed plaintiff to prove by witnesses Philip Sappington, W. H. Brown, B. F. Crow, and Angus Boyd, the plaintiff, the value of plaintiff’s farm in Crawford county, traded by plaintiff for the electric light plan of defendant. Kendrick v. Ryus, 225 Mo. 150; Boyce v. Gingrich, 134 S. W. 79; Chase v. Rusk, 90 Mo.

Louis City Circuit Court. — Eon. George E. Shields, Judge. Appellant, by staying in tbe premises after notice served' upon him by respondent, did not elect to pay respondent the increased amount of rent; for the reasons : (a) That the notice was illegal and void in the first instance, because in the alternative. Brewing Co. v. Miller, 124 Mo. App. 392.

— Eon. B. E. Dyer, Judge. (1) Authority given under the power of attorney as is set out in the note said to have been executed by the defendants must be strictly construed. Any departure therefrom deprives the court attempting to render judgment of any jurisdiction and renders its acts a nullity. Bank v. White, 220 Mo. 717; Spence v. Emer- • ine, 21 N. W. 866; Weber v. Powers, 72 N. W. 1070; Machine Co. v. Radcliffe, 137 U. S. 287; Grubbs v. Blum, 62 Tex. 426; 23 Cyc. 705.

- — Hon. James D. Barnett, Judge. (1) Plaintiff’s petition is not sufficient, and defendant’s objection to the introduction of any evidence should have been sustained.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. Plaintiff is not entitled to the relief prayed for for the following reasons: (1) Even if there had been no express agreement, to pay the stenographer employed by the referee, at the instance of the plaintiff, the stenographer would still be entitled to demand his compensation before being compelled to turn over the transcript. The stipulation entered into does not relieve plaintiff from his primary liability.

— Son. B. S. Dyer, Judge. (1) A judgment in an action for divorce' on the merits supersedes an order for alimony pendente lite. Wood v. Wood, 7 Lansing, 205; Langan v. Langan, 91 Cal. 654; Driver v. Driver, 21 S. E. 154; Heilborn v. Heilborn, 158 Pa. St. 297; In re Fanning, 41 N. W. 1076; Mancrief v. Mancrief, 15 Abb. Pr. 187; Curtis v. Curtis, 49 Atl. 769; In re Ambrose, 14 Pac. 33.

Louis County Circuit Court. — Hon. G. A. Wurdemon, Judge. (1) Plaintiff is entitled to recover on the theory of an implied contract of indemnity. Implied' contracts of indemnity are based upon equitable considerations and arise when one person does an act at the request and for the benefit of another, whether as agent or otherwise. Knox County v. Huno.lt, 1101 Mo. 67, 76; Dugdale v. Levering, 10' L. R. A., Com. Pleas (Eng.) 196; Culmer v. Wilson, 13 Utah, 129, 57 Am.

<p>Appeal from Montgomery Circuit Court. — Hon. James D. Barnett, Judge.</p> <p>The defendant being assaulted in the dark by the prosecuting witness had a right to defend himself with whatever means he had at hand or in whatever manner he could at the moment, and was not required to gauge with any degree of nicety the force which would he sufficient to repel the attack made on him. State v. McCarver, 194 Mo. 717; Courtney v. Kneib, 131 Mo. App. 204; Mitchell v. United Railways Co., 125 Mo. App. 11; Brouster v. Fox, 117 Mo. App. 711; O’Donnel v. Transit Co., 107 Mo. App. 34; Sonner v. Transit . Co., 102 Mo. App. 275.</p> <p>The fact whether or not the defendant in assaulting the prosecuting witness used more force than was necessary to repel an attack made upon him by the prosecuting witness is a question for the jury to decide. Whether the act done constitutes an assault or whether the act done was without considerable provocation or not is a question for the jury. 3 Cyc., 1059', la, and b.</p>

— Hon. Jos. T). Barnett, Judge. A petition presented to the county court praying for tbe incorporation of a town is fatally defective, in a direct attack upon tbe validity of tbe attempted incorporation, if it omit all reference to the “commons” appertaining to said city or town. If there are no “commons” the petition should so state; and if there are they should be described therein by metes and bounds.

<p>Appeal from Pike Circuit Court. — Hon. B. H. Dyer, Judge.</p>

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The defendant’s demurrer to the evidence offered at the close of plaintiff’s case and again at the close of all the evidence in the case, should have been sustained because there was no evidence of any negligence on the part of defendant. It is fundamental that in an action for damages based on negligence a demurrer to the evidence should he sustained when the evidence fails to show any negligence.

<p>Appeal from Macon Circuit Court. — Ron. Nat M. Shelton, Judge.</p>

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

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

<p>Appeal from Jackson Circuit Court. — Hon. W. 6. Thomas, Judge.</p>

<p>Appeal from Cooper Circuit Court. — Eon. John M. Williams, Judge.</p>

<p>1. WITNESSES: Competency: Deceased Party: Agent. Although one party to a cause of action is dead, yet if the contract was made with an agent who made the contract for him that agent is a competent witness.</p> <p>2. -: Demurrer to Evidence: Witness: Competency. In passing upon the propriety of a demurrer to testimony for a plaintiff on the ground that the witness for him was incompetent under the statute disqualifying one party where the other is dead, that witness’ testimony tending to ■ prove that he made the contract in suit as deceased’s agent, must be accepted as true.</p>

<p>ATTACHMENTS: Fraudulent Sales: Evidence. Proof of an offer to sell, or of an actual sale, of personal property will not support an attachment on the ground of attempted fraudulent .disposition of property so as to hinder and delay creditors.</p>

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

<p>1. WATERCOURSES: Change of Course: New Stream: Obstruction. Notwithstanding a stream of water has had a certain course in flowing from one lake to another, yet, if in time, by action of the.elements or otherwise, its course is changed through the land of a person it had not before injured and after becoming a well-defined -stream with defined banks and channel, such person puts a dam across it and digs a ditch leading to the land of another through which the water is diverted onto the other, he is liable in damages.</p> <p>2. -: Natural Stream: Artificial: Elements: Damages. A watercourse as known to the land need not be a natural one, or it may be formed by the elements; it may be artificial, and if, after becoming established with defined bank and channel, it should be obstructed so as to cause the water to flow upon lands otherwise free from it, a liability will arise for the damage done.</p> <p>3. -: Prescription. An artificial watercourse need not exist for such a length of time as to establish rights by prescription.</p>

<p>Appeal from Jackson Circuit Court. — Hon. O. A. Lucas, Judge.</p>

<p>1. NEGLIGENCE: Master and Servant: Alarm: Liability. A section foreman was at work in a railway carrier’s switch yards while a freight engine was switching cars. He was on the track bending over picking up bolts and his back was to the approaching engine. As soon as the engineer saw him and that he was oblivious to his danger, he gave a blast of the whistle when the man raised up, turned towards the engine and then attempted to get out of the way but was struck and killed. It was held there was no liability under the humanitarian rule.</p> <p>2. -: -: Lookout: Peril: Alarm. As to section men working on the track the railway carrier’s servants in charge of the engine need not be on the lookout. They have a right to expect that section men will get out of the way and give them a clear track and are under no duty to sound an alarm until they see the men are in peril and are oblivious to it.</p>

<p>1.NEGLIGENCE: Damages: Pleading: Assumption of Risk. Plaintiff was engaged in painting the iron columns of defendant’s viaduct over a public street. To do so he had to stand on a ladder the upper end of which rested against the column and the other on the ground in the street. A passing wagon struck the foot of the ladder throwing him to the ground. The petition charged that defendant negligently ordered him to paint the columns and negligently failed to place a guard at the ladder to protect plaintiff. The proof admitted under the petition showed that plaintiff carried his 'ladder from post to post and set it up himself, that he was fully aware of the danger, that he painted for at least three weeks without a guard before the injury. Held, that, under the petition and evidence, he assumed the risk, and a demurrer to the evidence should have been sustained.</p> <p>2. -: -: -. As the injury was not caused by any defect in the appliances furnished by the master nor by negligent construction on the master’s part, hut was inherent in the nature of the work as it was being done, and the servant was fully cognizant of it, the question of assumption of risk arises and>> not that of contributory negligence.</p> <p>3. APPELLATE PRACTICE: Remanding Case Where Evidence Shows a Possible Case. While the appellate court should not remand a case for a new trial upon a mere ■ conjecture that evidence may exist showing that plaintiff has a cause of action, yet where the evidence offered shows that if the petition had been properly framed to meet the facts as claimed by plaintiff, he would- have a cause of action, the case will be remanded so that plaintiff may have an opportunity to amend his petition and present his cause if he so desires.</p>

<p>1. DIVORCE: Evidence: Finding of Trial Court not Binding on Appellate Court. In a suit for divorce the appellate court is not bound by the conclusions reached by the trial court but will examine the evidence and decide for itself whether the proper result -has been reached.</p> <p>2. -: -: Sufficiency of Evidence Entitles Party to Di.vorce. When the evidence shows a party is entitled to a decree of divorce, courts have no more discretion to refuse the relief than in any other case. In this case, however, the evidence is examined and the conclusion of the trial judge that neither party ig entitled to a divorce is approved.</p>

<p>Appeal from Buchanan Circuit Court. — Hon. Wm. B. Rush, Judge.</p>

<p>1. STATUTES: Limitations of: Installments. In a contract to pay sixty dollars in five equal yearly installments,- the Statute of Limitations will begin to run on each installment from the day it falls due.</p> <p>2. -: Cause of Action: Accrual. A cause of action accrues so as to set in motion the Statute of Limitations when an action may be brought upon it.</p> <p>3. INTEREST: Limitations. Interest payable annually may be sued for when due apart from the debt, but whether it must be in order to avoid being barred is not decided.</p>

<p>1. REPLEVIN: Possession: Payment. The plaintiff, a retail dealer in musical instruments, sued to recover possession of a piano, which it sold the defendant on the installment plan. All the installments were paid, but no interest, which should have been paid according to the contract. Held, that since the plaintiff admitted signing the written contract with interest terms therein, the only defense left to her was the affirmative defense of payment.</p> <p>2. EVIDENCE: Fraud and Mistake. In the absence of fraud or mistake parol evidence is not admissible to contradict or vary a written contract.</p>

<p>1. ATTORNEY AND CLIENT: Legal Services. The plaintiff sued to recover $200 for legal services, moneys advanced, and liabilities and expenses incurred in connection with the commitment and discharge of defendant, Mary Montz, the wife of defendant, Joseph Montz, to the State Hospital for the treatment of insane persons. Held, that as the services rendered and expenses paid were for necessaries furnished the defendant’s wife, plaintiff could recover from the husband.</p> <p>2. PLEADING: Amendment on Appeal: Statute. A statement filed in a justice court may be amended upon appeal in the appellate court to supply any deficiency or omission therein, when by such amendment substantial justice will be promoted; but no new item or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment.</p> <p>3. EXECUTIONS: Separate Estate of Married Women. Before an execution shall be levied upon any separate estate of a married woman, she shall have been made a party to the action and all questions involved shall have been therein determined and shall be recited in the judgment and the execution thereon.</p> <p>4. -: -. An action to charge the separate estate of a married woman with necessaries furnished the husband for the benefit of the wife or family was a proceeding in rent rather than one in personam, and that to state a cause of action against the wife the petition should describe her personal estate which is sought to be held; that such estate must have been in existence at the time the necessaries were purchased and when the suit was begun and that the judgment and execution should each recite that the debt was for necessaries and describe the property charged with the payment thereof.</p>

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

<p>1. CARRIERS OF LIVE STOCK: Railroads: Delayed Shipment. The plaintiff sued to recover damages for a delayed shipment of hogs by the defendant railroad company. The plaintiff delivered the hogs at Tipton to be shipped to East St. Louis. While they were en route, a heavy rainstorm washed out the defendant’s track ahead of the train, and the stock arrived too late for that day’s market. Held, that the delay was caused by an unusual and unavoidable delay.</p> <p>2.--: -: Negligence. It is not negligence to fail to take precautionary measures to prevent an injury which, if taken, would have prevented it when the injury could not reasonably have been anticipated and would not, unless under exceptional circumstances, have happened.</p>

<p>Appeal from Jackson Circuit Court. — Eon. A. O. Lucas, Judge.</p>

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

<p>Appeal from Lafayette Criminal Court. — Hon. John A. Rich, Judge.</p>

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

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

<p>1. NEGLIGENCE: Independent Contractor: Damages. Plaintiff sued a mining company and an individual for the death of her husband caused by the negligent failure of both defendants to obey a statute imposing a duty upon them. Held, that the individual did not occupy the status of an independent contractor; that the principles of law applicable to independent contractors could have no application regardless of the question whether the individual was an independent contractor or not. The primary duty rested upon the mining company which had control of and was operating the mine, and it could not escape the consequences of a failure to perform a statutory duty by attempting to devolve it upon another in the role of an independent contractor.</p> <p>2. -: -: -: No Contractual Relations Between Company and Deceased. Under the circumstances of this ease where deceased was working with the knowledge and consent of the company and was in a situation where both the individual and the company sued owed duties to him and was killed by reason of a failure of both to observe those duties, plaintiff’s recovery is not dependent upon tracing a relation of master and servant between deceased and the mining company.</p> <p>3. -: -: Assumption of Risk. Where a case is founded upon the violation of a statutory duty owed by defendant to deceased, there is no room for the application of the doctrine of assumption of risk.</p> <p>4. -:--: Contributory Negligence. Where the evidence is conflicting the question of contributory negligence is for the jury. And where there is any substantial evidence to sustain the jury’s verdict it must be accepted.</p> <p>5. TRIAL PRACTICE: Jurisdiction: Venue of Suits Against Corporations. Under Sec. 1754, R. S. Mo. 1909, a suit against a corporation must be brought in the county where the cause of action accrued or the company keeps an office or agent. But under See. 1751, if there are several defendants and they reside in different counties, suit may be brought in any one of them. As one of the defendants lived in Macon, and under the petition both were jointly and severally liable, suit was properly brought in said county. Jurisdiction having been once properly obtained as to both, it is not lost as to one because of the subsequent dismissal as to the other.</p> <p>6. -:--: Appearance: Consent. Jurisdiction over tire subject-matter cannot be conferred by consent, but jurisdiction over the parties can be. And. where defendant appeared, filed a motion for costs, obtained the court’s action thereon and ‘ then obtained a continuance without questioning the jurisdiction, the same is waived.</p>

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

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

— Hon. Carr McNatt, Judge. (1) Evidence of other accidents or injuries, from the same or similar cause or of other similar acts of negligence on the part of defendant is not admissible to show negligence in a particular case. Goble v. Kansas City, 148 Mo. 475; 291 Cyc. 611; Railroad v. Borders, 61 111. App. 55; Railroad v. Hodge, 55 111. App. 166; Calcaterra v. Iovaldi, 123 Mo. App. 350; Coale v. Railroad, 60 Mo. 232; Connor v. Railroad, 181 Mo. 418; Perry v. Port, 17 Mo.

— Hon. Alfred Page, Judge. (1) The verdict is excessive. Smith v. Railroad, 127 Mo. App. 53; Kirby v. Railroad, 146 Mo. App. 304; Clifton v. Railroad, 232 Mo. 708. (2) Tbe court erred in refusing at tbe close of plaintiff’s case, and again at tbe close of all tbe evidence, to instruct tbe jury at tbe request of defendant to find the issues for tbe defendant. Brezewitz v. Railroad, 87 S. W. 127; Webber v. Railroad, 100 Mo. 194; Mitchell v. Railroad, 51 Mich. 236, 47 Am.

— lion. J. P. Foard, Judge. A general averment of negligence, in a common law action for negligence, without stating wherein, and in what acts the negligence consists is fatally defective, and does not state a cause of action. Waldheier v. Railroad, 71 Mo. 514; Current v. Railroad, 86 Mo. 67; Summers v. Transit Co., 108 Mo. App. 321; Gurley v. Railroad, 93 Mo. 551.

<p>Appeal from Jasper County Circuit Court, Division Number Two. — Hon. D. E. Blair, Judge.</p> <p>(1) In an action for deceit or breach, of warranty, tbe measure of damages is the difference between the actual value of tbe property at tbe time of tbe purchase, and its value if tbe property bad been what it was represented to be. Kendrick v. Ryus, 225 Mo. 150; Morse v. Huchins, 102 Mass. 440; Herford v. Cramer, 7. Colo. 490. (2) Where a person makes a contract for tbe sale of real estate, and there is a breach of tbe contract, because of tbe failure of title, tbe purchaser under tbe contract is entitled to tbe benefit of bis bargain because tbe measure of damages is tbe difference between the price agreed to have been paid and the reasonable market value of the property. Kirkpatrick v. Downing, 58 Mo. 32; Krepp v. Railroad, 99 Mo. App. 94; Ryan v. Miller, 235 Mo. 496; Adams v. Barber, 157 Mo. App. 370; Hicks v. Deemer, 58 N. E. 252; Howardton v. Augustine, 106 N. W. 941.</p> <p>(1) The true measure of damages where false representations induced a sale or exchange of real estate, and there is a total failure of title to the land, as in the case at bar, is the amount paid for the property, or the value of the thing given in exchange. 20 Oyc. 137 (IY); Woolenslagle v. Runals, 76 Mich. 545, 43 N. W. 454; George v. Hesse, 123 Am. St. Rep. 786 (notes); Reynolds v. Franklin, 44 Minn. 30, 20 Am. St. Rep. 540. (2) The measure of damages where there is a total failure of title, and where the covenant of seizin is broken as soon as it is made, is the consideration paid with interest. Tapley v. Labeaume’s Exr., 1 Mo. 550; Evans v. Fulton, 134 Mo. 661; Frank v. Organ, 167 Mo. App. 493; Ooleman v. Clark, 80 Mo. App. 339; Jeffords v. Dreisbach, 168 Mo. App. 577; Falk v. Organ, 160 Mo. App. 225.</p>

— Hon, J. P. Foard, judge. Granting that the judgment was a valid one and that the circuit court of Clay county had the power to appoint a special administrator, and that a judgment against the said special administrator would be valid in the State of Arkansas, still the judgment must be considered as a judgment against an administrator of the estate of T. W. Dowdy, in the State of Arkansas.

— Ron. John T. Moore, Judge. (1) Where it is understood between the seller of a stock of goods and the person for whose use the goods were transferred, that the seller shall remain in possession, and continue to sell in the ordinary course of business, it is sufficient to support an attachment on the ground that the seller has fraudulently conveyed and assigned his property to hinder and delay creditors. Reed v. Petteter, 28 Mo. 173.

— How. John P. Foard, Judge. (1) A. W. Greer had the right to give to his wife, the plaintiff, the note in suit or the money which purchased it. He gave her the money which purchased the note because he took the title to the note in her name and the undisputed oral evidence, together with the written assignment show that she owned it at the time this suit was brought and still owned it at the trial.

— Hon. Joseph D. Perkins, Judge. (1) Where tbe action for tort is brought for two interested complainants suffering alike the injury complained of, they must join as plaintiffs. Hollow Brake Beam Co. v. Blakewell, 224 Mo. 203; Lowenberg v. De Yoigne, 145 Mo. App. 710; Secs. 1729', 1733, R. S. 1909. (2) Amendments are favored, and the amendment offered to be made by the defendant should have been permitted by the court, even if the court fixed the terms.

— Kon. Guy D. Kirby, Judge. (1) Considering the perishable nature of the sets they should have been resold at once. 5 Elliott on Contracts, sec. 5043, p. 1193; Rickey v. Tenbroeck, 63 Mo. 567. ’(2) The sale by an agent of plaintiffs, to himself is no criterion by which to determine defendant’s liability. Montgomery v. Iiindley, 205' Mo. 149'; Thornton v. Irvin, 43 Mo. 164.

<p>Appeal from Jasper County Circuit Court, Division Number One. — Hon. J. D. Perkins, Judge.</p> <p>(1) The judgment and decree in this case are erroneous and under the law and the facts cannot stand. The facts which constitute the fraud must he stated. Bliss, sec. 211. (2.) The facts stated in the petition must show that the party was not guilty of negligence or that the judgment was not brought about by any fault or negligence upon the part of the plaintiff, which this petition fails to show. Cantwell v. Johnson, 236 Mo. 600 ; 2 Freeman on Judgments, sec. 486. ■ (3) The burden in this case was on the plaintiff to prove the allegations of fraud set forth in the petition beyond a reasonable doubt. And further that the fraud thus perpetrated was exercised in the very procurement of the judgment complained of, and was a fraud upon the court as well as the other party to the suit. Lieber v. Lieber, 239 Mo. 31. (4) A court of equity will not enjoin the judgment merely because it is founded-on a cause of action vitiated by fraud, unless the interposition of the fraud as a defense has been prevented by fraud of the opposite party. 16 Am. Ency. Law (2 Ed.), p. 380 ; Murphy v. De France, 101 Mo. 157 ; Freeman on Judgments (3 Ed.), secs. 486, 489. (5) Mrs. McDonald, the defendant in the divorce suit, voluntarily over her own signature entered her appearance and it was immaterial who filed the same in court for her. The Barry Circuit Court became fully possessed of jurisdiction over the parties and the subject-matter of the action. Harding v. City of Carthage, 105 Mo. App. 16 ; Davidson v. Hough, 165 Mo. 573, 17 Am. Ency. Law (2 Ech), 1058. (6) The fraud for which a judgment may be vacated must be in its procurement, in its concoction, in the' very act itself. Cantwell v. Johnson, 236 Mo. 601, and cases cited. (7) Judgments are impeachable only for fraud extrinsic to the merits of the case. They are not impeachable for fraud relating to the merits between the parties. 2 Freeman on Judg. (4 Ed.), secs. 486-89 ; Howard v. Scott, 225 Mo. 713 ; Cantwell v. Johnson, 236 Mo. 601. (8) The court virtually ruled that Mrs. McDonald could not be impeached even though we had at hand testimony to do so. This was clearly error. State v. Long, 201 Mo. 675; State v. Wifger, 196 Mo. 90; Mueller v. Hospital Assn., 5 Mo. App. 401, 73 Mo. 242; State v. Hack, 118 Mo. 99 and 159. (9) Where it is shown that defendant in a case was guilty of negligence and that had it not been for such negligence no judgment would have been rendered a court of equity will not interfere. Curtis v. Bell, 131 Mo. App. 253; Jones v. Rush, 156 Mo. 374.</p> <p>(1) The petition does state the fraud whereby the respondent and the court were tricked, and the circuit court of Barry county was made an instrument of injustice. Shelton v. Horrel, 233' Mo. 306; Graham v. Graham, 102 Pac. (Wash.)’ 891; Dorrance v. Dorrance, 242 Mo. 625v (2) The respondent was not guilty of negligence nor was the judgment brought about by her fault. Lee v. Harmon, 84 Mo. App. 157; Hamilton v. McLean,- 169 Mo. 51; Wonderly v. Lafayette Co., 150 Mo. 635; Mayberry v. McClung, 51 Mo. 256; Ramsey v. Hicks, 53 Mo. App. 190; Link v. Link, 48 Mo. i\pp. 345; United States v. Throckmorton, 98 U. S. 61; Freeman on Judgments, sees. 1572-1575; Mangold v. Bacon, 131 Mo. 496. (3) Where the wife is induced, by false representations, to sign a general denial and waiver, judgment and decree will be set aside on proper showing. Graham v. Graham, supra; Dorrance v. Dorrance, 242 Mo. 625; Earle v. Earle, 91 Ind. 27. (4) Where the husband leads the wife to believe that he will not prosecute his divorce suit and she relies thereon and even fails to defend it, it was held fraud upon the defendant and the court. Womack v. Womack, 83 S. W. 937. (5) When the defendant is free from actual negligence and has been deceived bv fraud practiced by his opponent for the purpose of misleading the court, both the court and defendant have acted as neither would but for such fraud and a judgment so extorted should he set aside in equity provided the defendant has acted with due diligence, to discover the fraud, and upon its discovery is without legal remedy in the action in which the judgment was obtained. Fitzpatrick v. Stephens, 114 Mo. App. 501; Dorrance v. Dorrance, supra; Earle v. Earle, 91 Ind. 27; Graham v. Graham, supra. (6) It is not permissible for defendant to attack the reputation or character of plaintiff by undertaking to show specific acts of immorality, and the court rightfully excludes the offered testimony. Rose v. Tholborn, 153 Mo. App. 408; Shafer v. Railroad, 98 Mo. App. 445-454; State v. Gessell, 124 Mo. 531; Wright v. Kansas City, 187 Mo. 692-693; Yeager -v. Bruce, 116 Mo. App. 493. (7) Fraud will vitiate any, even the most solemn transactions; neither judgments at law nor decrees in equity are exempt from the operation of this rule. Dorrance v. D'orranee, 242 Mo. 650.</p>

— Hon. L. B. Wooclside, Judge. In the case at bar the plaintiff in error had one year in which to prosecute her writ of error to this court. Sec. 2380, R. S. 1909, expressly provides that it applies only to cases arising* under the article in which said section is contained. That section is in Art. 3, Chap. 22, R. S. 1909. Respondent’s motion to dismiss this writ of error should be sustained for the reason that it was not issued within sixty days after the judgment.

<p>1. LANDLORD AND TENANT: Repairs: Liability of Landlord for Injuries to Tenant. The landlord is not hound to keep rented premises in repair, in the absence of an agreement to do so, made at the time of the letting, or thereafter on a new and sufficient consideration, and is not liable to the tenant for injuries sustained by reason of such failure to repair.</p> <p>2. APPELLATE PRACTICE: Former Decision: Law of Case. A determination by an appellate court that the petition and evidence are sufficient to warrant a recovery by plaintiff is res adjtidicata on a subsequent appeal after retrial, if the petition and evidence presented on both appeals are the same.</p> <p>3. LANDLORD AND TENANT: Repairs: Liability of Landlord for Injury to Tenant. A landlord who is under no obligation to make repairs to rented premises, but who voluntarily undertakes to do so, is liable for injury to the tenant resulting from the negligent manner in which the repairs are made.</p> <p>4. -: -: -: Sufficiency of Petition. In an action against a landlord for injuries sustained by the tenant as a result of negligence of the landlord in repairing rented premises, the petition alleged that the floor of a privy on the premises was in a dangerous condition; that the landlord undertook to repair the same; that, in making the repair, he negligently failed to remove the flooring, which was already decayed and rotten and of insufficient thickness and quality, and negligently repaired the same by nailing down said decayed and rotten boards; that, upon plaintiff’s entering the privy, after such repair was made, one of said decayed and rotten boards broke beneath her, causing her to fall and receive injuries. Held, that the petition, when liberally construed, stated a cause of action on the theory that defendant, having voluntarily undertaken to make the repair, was liable for his failure to exercise ordinary care in doing so; the fact that-the floor consisted of the same decayed and rotten boards prior to his undertaking being immaterial, since, having undertaken to make the repair, it was his duty to install a floor that would be reasonably safe.</p> <p>5. PLEADING: Liberal Construction. Under Sec. 1831, R. S. 1909, it is the duty of courts, in construing a pleading for the purpose of determining its effect, to construe its allegations liberally with a view to substantial justice between the parties.</p> <p>6. -: Petition: Liberal Construction. A petition which is not challenged by demurrer and is first assailed after verdict is to be construed by allowing every implication and intendment of its language in favor of the pleader.</p> <p>7. DAMAGES: Personal Injuries: Proximate Cause. In an action for personal injuries, where it was shown that plaintiff was a strong, healthy woman before her injury and that certain conditions developed immediately thereafter, and that such conditions, though not the necessary result of the injury sustained, could be directly attributed thereto, the • question of whether plaintiff should be awarded damages therefor was for the jury.</p> <p>8. EVIDENCE: Impeaching Evidence: Subornation. Evidence that a certain person had sought to suborn a witness to testify falsely for defendant was incompetent, in the absence of evidence that such a person was acting for defendant or with her knowledge or consent.</p> <p>9. APPELLATE PRACTICE: Erroneous Admission of Evidence: Cure by Withdrawing Instruction. Where there is other evidence tending to prove tha fact sought to be established by evidence improperly admitted, the error of admitting such evidence can be rendered harmless by a plain, positive and direct instruction to the jury to disregard it.</p> <p>10.-: -: -. A witness was permitted to testify that a certain person had sought to suborn her to testify falsely for defendant, without any evidence being introduced that such person was acting for defendant or with her knowledge or consent. There was other evidence, however, that defendant herself had approached several witnesses with the view of having them testify favorably to her, for a consideration. Held, that the error of admitting the evidence of the first witness was cured by an instruction in plain and pointed terms that the jury should not consider it for any purpose.</p> <p>11. VERDICT: Impeachment by Jurors. It is against public policy to permit the members of a jury who concur in a verdict to assail or impeach it by affidavit or otherwise.</p> <p>12. -: Quotient Verdict. Jurors may compute the average of their respective individual judgments, when trying to arrive at the amount of a verdict, without being guilty of misconduct, provided they do not agree in advance that they will be bound by the result of such computation; but if the jurors make such an agreement and abide by it and cease to deliberate, such conduct vitiates the verdict.</p> <p>13. APPELLATE PRACTICE: Verdict: Impeachment: Conclusiveness of Trial Court’s Finding. Where three dissenting jurors made affidavits that the verdict concurred in by the other nine jurors was a quotient verdict, and one of the jurors who concurred in the verdict made an affidavit denying that it was a quotient verdict, held that, conceding but not deciding that it was competent for the three dissenting jurors to impeach the verdict, the finding of the trial court that the verdict was not a quotient one was conclusive, on appeal.</p>

Habeas Corpus. Original Proceeding. (1) A hearing before a commission of lunacy of a person under indictment who pleads insanity is not within the meaning of a statute allowing the taking of depositions to be used upon the trial of an “action,” “issue” or “indictment.” People v. Haight, 13 Abb. N. C. (N. Y.) 197; Ex parte Alexander, 147 S. W. 521; In re Attorney, 83 N. Y. 164; G-albreath v. Block, 89 Ind. 300.

Louis City Circuit Court. — Hon. Leo 8. Rassieur, Judge. The main contractor having paid the subcontractor the contract price in full, the materialman who furnished material to the subcontractor was not entitled to recover on the bond furnished by the main contractor, and the court below erred in refusing' defendants ’ instruction Émd in finding in favor of the plaintiff. Berger Mfg. Co. v. Lloyd, 209' Mo. 681.

— Hon. B. A. Breuer, Judge. The rule has always been that before the witness would be allowed to express an opinion on the value of services, it ipust first be shown that the witness knew the value of such services. Naughton v. Stagg, 4 Mo. App. 275; Schrodt v. St. Joseph, 1091 Mo. App: '630; Lorrance v. Coryl, 4 Den. (N. Y.) 370.

Louis City Circuit Court. — No». J. Hugo Grimm, Judge. (1) The plaintiff’s case is refuted by the physical facts brought forth by the testimony of his own witnesses. Held: £ £ That the husband is entitled to recover; first, for present and future damages for the impairment of the wife’s ability to perform domestic services for the family. Second, for the loss of her society and companionship past and future.

— Hon. G. D. Steivart, Judge. (1) Waiver of notice of presentation of demand was void; was not signed by tbe administrator, was waived by tin attorney, therefore conferred no jurisdiction on the probate court, consequently the circuit court did not acquire jurisdiction, for winch, reason cause should be dismissed. Taylor v. George, 159 Mo. App. 160; R. S. 1909; secs. 203, 204, 205; 1761.

<p>Appeal from St. Louis County Circuit Court. — Hon. G. A. Wurdeman, Judge.</p>

<p>1. REAL ESTATE BROKERS: Duration of Contract: Revocation. A contract employing a broker to sell real estate for a commission, which stipulates that it can be terminated on ninety days’ notice, but does not fix any time limit for its continuance, remains in force for a reasonable time only, and, after the expiration of that time, the owner may, in good faith, revoke the agency and sell to a customer first discovered'by the broker, without becoming liable for a commission.</p> <p>2. -:-:-. Three years being a reasonable time to allow a real estate broker to seek a purchaser for real estate, the revocation, after the lapse of that period of time, of a contract containing no time limit, which authorized him to sell the real estate, would be reasonable as a matter of law, and a sale by tbe owner would' ipso facto operate as a revocation of suck authority; and hence the broker would not, under such circumstances, be entitled to a commission on a sale made to a purchaser who was not procured by him.</p>

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. The disability of married women in so far as they had the right to file claims ag’ainst estates in the probate court, for money loaned, on their own initiative, and to file suits for such purpose against an executor in their own names and on their own initiative, were removed by statutes now appearing as Secs. 1735 and 8304, R. S. 1909'.

Louis County Circuit Court. — Hon. G. A. W-urdeman, Judge. (1) The alleged note sued on in this case being payable to several payees in the alternative (and undefined payees at that, as the word family has no definite limitations), was void. A bill is void for uncertainty of the payee, not only as a bill, but as a contract, upon the ground of utter uncertainty of the person with whom the contract is made.

Louis City Circuit Court. — Eon. Eugene McQuillin, .Judge. (1) In the absence of proof, negligence will not be presumed against appellant from the mere fact that the respondent may have been injured, as carriers are not insurers of the safety of their passengers. Van Cleve v. Railroad, 107 Mo. App. 96; Palmer v. Railroad, 111 N. Y. 488; Kelly v. Railroad, 112 N. Y. 443; Pearn v. Perry Co., 143 Pa. 122; Proud v. Railroad, 64 N. J. L. 702.

— Hon. E. M. Dearing, Judge.. (1) In voluntarily going upon the track and walking at a place where it was impossible for the engineer to see him until the train was so close upon him that it could not be stopped in time to avoid the injury, deced-i ent was guilty of negligence that contributed to his death, and appellant’s peremptory instructions should have been given on this ground.

<p>1. LOGS AND LOGGING: Time of Delivery: Contracts. A contract for the cutting and delivery of saw logs in a. region usually flooded in the spring, which provides that the contractor shall “raft and float or otherwise deliver” the logs to the sawmill, requires him to deliver by other means, if the floods are not sufficient to permit delivery by rafting.</p> <p>2. -: Contracts: Time of Performance. Where a contract fixes no time for performance, a reasonable time is implied, and this rule applies to logging contracts the same as to others.</p> <p>3. -: Time of Delivery: Contract Construed. A contract provided for the cutting of saw logs, and for their delivery by “raft or otherwise,” without specifying the time. Contrary to the usual experience, the spring floods were not sufficient to permit of delivery by rafting, and the logs, after being cut, were left lying on the ground, in which condition they would rapidly deteriorate. Held,, that, in view of the fact that the logs would rapidly deteriorate if left lying on' the ground, it is evident the parties intended that the delivery should be made within a reasonable time and by other means than rafting, if the floods were not sufficient' to permit of delivery by that means, and the postponement of delivery for a year, awaiting the next spring floods, so as to enable the promisor to deliver by rafting, was unreasonable as a matter of law.</p>

— Hon. W. S.'G. Walker, Judge. A representation, to constitute fraud, must relate to a past or existing fact, and a promise or statement of intention, inducing a contract, though made with the intent to deceive, will not he ground for a rescission thereof. Wade v. Ringo, 122 Mo. 322; Estes v. Shoe Co., 155 Mo. 577; Younger v. Hoge, 211 Mo. 444; Funding & F. Co. v. Heskett, 125 Mo. App. 531; Terry v. Ins. Co., 3 Mo. App. 595; Matthews v. Eby, 149 Mo. App. 157; 2 Pomeroy on Eq.

— Hon. Charles D. Stewart, Judge. Respondent’s instruction No. 1 is erroneous for the reason that plaintiff’s husband had full knowledge of the conditions and assumed all risks, and for the reason that it submits to the jury plaintiff’s loss of support by her husband. Feneff v. Railroad, 208 Mas» 278.

— Hon. James P Barnett, Judge. The action originating in a justice’s court by suit on account, the plaintiff was entitled to recover on a quantum meruit, and evidence as to customary charge for use of baler and the customary charge for baling hay was admissible. Fullerton v. Chloss, 104 Mo. App. 195; Walker v. Guthrie, 102 Mo. App: 240; Metz v. Eddy, 21 Mo. 13; Bushman v. Bray, 68 Mo. App. 11; Boyle v. Clark, 63 Mo. App.. 476; Lemon v. Lloyd, 46 Mo. App. 456.

Louis City Circuit Court. — Hew. J. Hugo Grimm, Judge. A defendant corporation can be brought into court only in the manner and form prescribed by the statute. Horn v. Railroad, 88 Mo. App. 469 ; State ex rel. v. Myers, 126 Mo. App. 544. The statute must he strictly followed in all its particulars. Railroad v. Hoereth, 144 Mo. 136; Hoen v. Railroad, 64 Mo. 506.

Louis County Circuit Court. — Hon. G. A. Wurdemcm, Judge. Mere oral promises or agreements to accept less than the amount fixed by the judgment of consent, and though entered into prior thereto or contemporaneous with the stipulation for judgment, are a nullity. Knight v. Cherry, 64 Mo. 513; 23 Cyc. 1478d; Plunkett v. Black, 117 Ind. 14; Terrett v. Brocklynn Imp. Co., 87 N. Y. 92; Codding v. Wood, 112 Pa. St. 371; Maute v. Gross, 56 Pa. St. 250; Schilling v. Durst, 42 Pa.

<p>1. APPELLATE PRACTICE: Conclusiveness of Verdict. A verdict on conflicting evidence, approved by the trial court, cannot be disturbed on appeal; the trial court alone, in an action at law, being • authorized to pass on the weight of the testimony.</p> <p>2. PLEADING: Joinder of Causes of Action: Running Account. A claim in gross for sundry services rendered and hoard furnished at divers times during a period of years, constituting a running account, is but a single cause of action and hence may be pleaded in one count.</p> <p>3. REVISED STATUTES: Appendix: Forms for Pleading. While the publication of forms for pleading in the appendix to the Revised Statutes does not give them express legal sanction, their use for many years in the various revisions is such a recognition of them as entitles them to consideration.</p> <p>4. PLEADING: Motion to Elect: Waiver by Pleading Over. Defendant loses the benefit of his motion to compel plaintiff to elect between causes of action, by pleading over after the motion is overruled.</p> <p>5. PARENT AND CHILD: Domestic Relations: Services Rendered Parent: Action by Child: Presumptions. Where a mother and son and the latter’s wife live together as one family, the law presumes that services rendered for, and board furnished to, the mother by the son’s wife were rendered and furnished gratuitously, but this presumption may be overcome by testimony that the services were rendered and the board was furnished with the expectation by both parties that they were to be paid for, in which event the daughter-in-law is entitled to recover.</p> <p>6.-: -: -:--: Sufficiency of Evidence. In an action by a daughter-in-law against the estate of her deceased mother-in-law for board furnished to, and services rendered for, the latter, evidence helé sufficient to overcome the presumption that the services rendered and board furnished were gratuitous because the family relation existed, and to warrant a finding for plaintiff.</p> <p>7. -:--:-:-: Evidence. Where a mother and son and the latter’s wife lived together as one family, and board was furnished to, and services were rendered for, the .mother by the son’s wife, a statement by the mother, that she expected to pay by remembering the daughter-in-law in her will, helé to warrant a finding that she accepted the board and services with the expectation of paying for them.</p> <p>8. -: -: -: -: Instructions. In an action by a daughter-in-law against the estate of her deceased mother-in-law for board furnished to, and services rendered for, the latter, while a member of the son’s family, prosecuted on the theory that the board was furnished and the services were rendered with the expectation by both parties that they were to be paid for, helé that an instruction, charging the jury that it was not. necessary to a recovery by plaintiff that she establish a formal verbal or written contract, but if they found that the services were rendered or the board was furnished with the expectation on the part of plaintiff that she was to receive pay therefor, and on the part of decedent that she was to pay therefor, such mutual expectation constituted a sufficient contract, correctly stated the law.</p> <p>9.-:--: -: -: Instructions. In an action by a daughter-in-law against the estate of her deceased mother-in-law for board furnished to, and services rendered for, the latter, while a member of the son’s family, prosecuted on the theory that the board was furnished and the services were rendered with the expectation by both parties that they were to be paid for, the court instructed the jury that, where services are rendered or received, a contract or obligation to pay will be presumed, except as to services rendered by members of one family for each other, in which case the presumption is, that they were intended to be gratuitous, and although the jury might believe that plaintiff and decedent were members of the same family, yet if the jury further believed that plaintiff rendered the services in question and boarded decedent and that the services were valuable and knowingly accepted by decedent, and that the facts and circumstances under which they were rendered were such as to show a reasonable and proper expectation that' plaintiff would be compensated therefor, or that both she and decedent intended that compensation was to be made for the services, although no express understanding to that effect was entered into, the jury might find for plaintiff and allow her a just and reasonable compensation for the services she was shown to have rendered; and if the jury found from the evidence that the parties had an understanding that any or all of the services should be charged for by plaintiff,. their finding should be for plaintiff for all services covered by such understanding; and, in either case, if the finding of the jury should be for plaintiff, they should allow her a proper and reasonable compensation for the services shown to have been rendered. Held, that the instruction was correct.</p> <p>10. STATUTE OF LIMITATIONS: Running Account. Although all of the items of a running account-are on one side, none of the items are barred by the Statute of Limitations unless all are.</p> <p>11. EXECUTORS AND ADMINISTRATORS: Claims Against Estate: Parol Evidence. Parol evidence is competent to establish liability against the estate of a deceased person for services rendered decedent, and a recovery may be had therefor although no formal account was ever made out.</p> <p>12. PUBLIC POLICY: How Determined: Courts. The policy of the State is found in its laws, and these are made by the Legislature and not by the courts.</p>

— Hon. R. A. Bruer, Judge. (1) An action for contribution between coobligors is an action at law and not a suit in equity. Jeffries v. Ferguson, 87 Mo. 244; Hanna v. Hyatt, 67 Mo. App, 308; Van Pelten v. Richardson, 68 Mo. 379. (2) Tbe judgment rendered against defendants in tbe action of Heckman v. Robinson and Lambeth, to which action A. J. Seay was not a party, is in no way binding on said Seay. Rieschick v. Klingelhoefer, 91 Mo. App. 130; Loyd v Tracy, 53 Mo.

<p>1. STATUTES: Amendment and Revision: Effect on Prior Statutes'. The incorporation of an existing provision in a revised law merely operates to continue its existence and does not make it operative as an original act to take effect only from the date of the revised law.</p> <p>2. COURTS OF APPEALS: Territorial Jurisdiction: Amendment of Statutes: Effect on Prior Statute. Sec. 3926, R. S. 1909, created the Springfield Court of Appeals and defined its territorial jurisdiction. Sec. 3927 provides that “all eases now pending” and unsubmitted in the other Courts of Appeals, coming from the territorial jurisdiction of the Springfield Court of Appeals, shall be transferred to that court. The Act of March 21, 1913 (Session Acts 1913, p. 204), amended See. 3926 by enlarging the territorial jurisdiction of the Springfield Court of Appeals. Held, that the amendatory act did not have the effect of making the revised law entirely original, so as to be construed as though none of its provisions had any effect except from the date of the amendment, but that the inclusion of the former provisions operated merely to continue their existence.</p> <p>3. -:--:--: Disposition of Pending Cases. Sec. 3926, R. S. 1909 (Session Acts 1909, p. 393), created the Springfield Court of Appeals and defined its territorial jurisdiction. The second section of the act (Sec. 3927) provides that “all cases now pending” and unsubmitted in the other Courts of Appeals, coming from counties within the territorial jurisdiction of the Springfield Court of Appeals,-shall be transferred to that court. The Act of March 21, 1913 (Session Acts 1913, p. 204), amendatory of Sec. 3926, took certain counties from the appellate district of the St. Louis Court of Appeals and added them to the district of the Springfield Court of Appeals, but made no provision with respect either to the retention or transfer by the St. Louis- Court of Appeals of unsubmitted cases from such counties, pending in that court. Held, that the provisions of Sec. 3927, relating to the transfer of cases, are applicable to Sec. 3926 as amended by the Act of March 21, 1913, and that the St. Louis Court of Appeals is divested of jurisdiction to hear and determine appeals from any of the counties mentioned in the act, not under submission on the date it became effective.</p>