Volume 176 — Missouri Appeal Reports

<p>1. EXECUTORS AND ADMINISTRATORS: Bills and Notes: Life Tenant. The plaintiff, executor of J. G. Mast, sued to recover judgment on a note against the defendants, one of whom was the grandson of the deceased. The grandson borrowed $600 from the deceased, who left a legacy in his will to him sufficient to cover the amount of the note. The grandson refused to pay the note on the ground that his legacy was sufficient to pay the note. Held, that the estate not being in condition for distribution as long as the life tenant survived, the defendant was in no position to oppose his legacy as a defense to an action by the personal representative of the testator to enforce the payment of a debt he owes the estate.</p> <p>2. -: Legatee. Where suit is brought by a personal representative against a legatee the latter cannot in general plead as a set-off the amount of his legacy, at least where it is not shown that the estate is solvent and is in a condition to be distributed.</p> <p>3. -: -: Statute. Under the provisions of Secs. 245 and 246, R. S. 1909, a legatee would have no right to distribution until after the expiration of the statutory bar of two years for the allowance of demands against the estate since it could not be known with certainty until then whether or not the legacy could be paid.</p>

<p>1. CARRIERS OF GOODS: Written Contract of Shipment: Limitations. In an action before a justice of the peace where neither the statement, evidence nor any part of the record shows that it was based on a written- agreement of shipment over the road of a carrier, it will be considered an action for breach of the carrier’s duty to safely transport and deliver, and the period of limitation for actions on written contracts will not apply.</p> <p>2. LIMITATIONS: Foreign State. If an action is barred in the State in which it arose, it is barred in Missouri where an action was brought.</p> <p>3. LIMITATIONS: Justice of the Peace: Pleading. In an action before a justice of the peace the Statute of Limitations need not be pleaded, if it is insisted upon at the trial.</p> <p>4. JURISDICTION: Waiver. Whether appearance to an action in Blue township, Jackson county, by a railway company which resides in Kaw township of the same county is a waiver of jurisdiction, not decided.</p>

<p>1. CRIMINAL LAW: Bawdyhouses: Evidence. Evidence that a woman ’ kept a house with five female inmates and that men called at the house day and night and while there one girl and one man would retire from the general room to a private room for entertainment, is sufficient to sustain a verdict of guilty of keeping á bawdyhouse.</p> <p>2. CONSTITUTIONAL QUESTIONS: Evidence: Grand Jury. In order to raise the constitutional question on the propriety of receiving evidence of what the defendant testified to before the grand jury, such question must be made a ground of objection in the trial court.</p>

<p>1. NEGLIGENCE: Humanitarian Rule: Drunkenness: Railroad Crossing. Three men left Fayette, Missouri, just after midnight, in a one-horse buggy, for their home fifteen miles away. They were drunk and soon fell asleep, but the horse being gentle, proceeded on in a walk. When about ten miles out they came to a railroad crossing at three o’clock, when a passenger train was due. Just as the horse had pulled them onto the crossing, still drunk and asleep, the train, running forty-five or fifty miles an hour, came upon- them and killed one. The night was starlight. There was evidence tending to show that the crossing was covered by the light of the engine’s headlight when it was near 600 feet away, and that the engineer could have seen them in peril for that distance and that the train could have been stopped in less than that distance. It was held that a case was made for the jury under the humanitarian rule.</p> <p>2. WITNESSES: Impeachment: Contradiction. While a party cannot impeach his own witness yet he is not concluded by the testimony of such witness and he may show a state of facts from other sources which, though contradicting the witness, makes a different state of case from that which the witness’s testimony tended to show.</p> <p>3. NEGLIGENCE: Statutes: Humanitarian Rule. The statute (Sec. 5425, R. S. 1909), allowing, in actions against corporations for death, damages in a sum not less than two and not more than ten thousand dollars and providing that negligence of the deceased may be shown “as a defense” to the action, was not intended to permit the killing of an individual when it could be avoided by the servants of the corporation, and it did not annul the humanitarian rule.</p> <p>4. EVIDENCE: Hypothetical Question: Expert: Waiver. A hypothetical question addressed to an expert as to the distance in which a train could be stopped, should include the hypothesis of safety to the passengers. But if that is not included in the .objections which are made to the question, it is waived.</p> <p>5. -: -: Like Conditions. Experiments under substantially like conditions are proper evidence; but the fact that five months elapsed, other conditions being practically the same, is not sufficient reason for excluding such evidence.</p>

<p>1. CONTRACTS: Wrongful Withdrawal: Other Party. If one party wrongfully refuses to perform his contract it will justify the other in withdrawing.</p> <p>2. WITNESSES: Expert: Evidence. A witness of experience in selling and installing insulating plants, that his principal manufactures, and knows the cost price of a plant and the costs and expense of setting it up in a building, he may testify the result of his calculation of the difference between such price and what was to be paid by the contract.</p>

<p>1. NEGLIGENCE: Death from Wrongful Act: Sufficiency of Evidence. In a suit under See. 5425, R. S. 1909, for the death of a passenger caused by an unusually violent starting up or jerk of the car, evidence that the car stopped and suddenly started with a violent jerk and that deceased immediately fell from her seat breaking her thigh and necessitating her immediate removal to a hospital where she remained in bed for seven days gradually sinking until she died, is sufficient to support a verdict for plaintiff so far as the negligence and the' death resulting therefrom is concerned. Only general negligence was alleged and, in the absence of specific allegations of negligence, when the deceased is shown to be a passenger, and the death is caused by an unusual, violent and severe jerk of the car, it is not necessary to prove the particular act of the motorman causing the jerk.</p> <p>'¿. -: -: Verdict in Excess of $2000: Evidence to Support. If it is necessary for an administratrix suing under section 5425 to show pecuniary loss to the persons for whom suit is brought to justify a verdict greater than $2000 (about which no opinion is expressed), evidence that deceased was vigorous and healthy, could walk from eight to twelve blocks without visible fatigue and could and did sew, mend clothes and care for the children in the families of those who would be beneficiaries in the suit, is sufficient evidence of pecuniary loss to justify a verdict of $500 in excess of $2000, the purely penal amount allowed by the statute. And such verdict of $2500 is not excessive.</p> <p>3. PLEADING: Petition: Variance Between Allegations and Proof as to Movement of Car or Cause of Death. When the petition does not allege that the car stopped previous to the start or jerk, but, when considered as a whole, relies upon an unusual jerk, or start, or starting up of the car, without reference to whether the car previously stopped or not, there is no variance between the petition and proof as to the movement of the car even if the latter does show that the car did not stop but merely slowed down and then suddenly jerked. Nor is there a variance in the proof as to the cause of death by reason of the fact that hypostatic pneumonia set in where the evidence shows that such was the natural direct and usually expected result of the injury and no other cause was shown therefor.</p> <p>4. -: Petition Stating no Cause of Action: Jurisdictional Defect. Objection Made at any Time. An administratrix suing under the fourth subdivision of section 5425 should allege the nonexistence of the individuals in the preceding clauses of the section in order to bring herself within the statute and show her right to sue. A petition failing to do this states no cause of action. Such defect can be objected to in any court and at any stage of the proceeding.</p> <p>5. TRIAL PRACTICE: Holding in Reserve Objection Fatal to Judgment. The practice of holding in reserve an objection fatal to a judgment and not calling attention thereto until in the motion for rehearing, is not commended.</p>

<p>1. NEGLIGENCE: Damages: Personal Injuries: Causal Connection Between Negligent Act and Injury. While plaintiff was a passenger on defendant’s car a collision occurred with another car on defendant’s road. Plaintiff was hurled against the top of the hack of the seat with such force as to either break the seat or tear it loose from its fastenings. Her body-struck just over the left ovary. From that- time she suffered pain in the region of her ovary constantly, though free from it prior to that time. A medical examination disclosed a lump in the region of the ovary and an operation was performed to remove it and the ovary was found to be diseased. There was-testimony from her physicians that such an injury could have been produced by such a blow. Held, that a causal connection between injury and collision was shown, at least sufficiently to take the case to the jury.</p> <p>2. -:--: -. In a suit for personal injuries, the rule is that if the injury may have resulted from one of two causes, for one of which and not the other, defendant is liable, plaintiff must show with reasonable certainty that the cause for which defendant is liable produced the result, or fail in her case. But before defendant is entitled to invoke this rule, the evidence must show that more than one cause was present. Unless this is done it has not been shown that the injury may have resulted from more than one cause. Neither side will be allowed to indulge in conjecture.</p> <p>8. TRIAL PRACTICE: Hypothetical Questions: Questions not Hypothetical. A question may be asked an expert who is acquainted with plaintiff’s alleged physical condition as to whether or not in his opinion such condition -could have been caused by the accident for which suit is brought. Such question is not a hypothetical question but merely a question put to an expert.</p> <p>4. -: -. If such question becomes hypothetical on account of the form in which it is put, still, if the witness speaks of his own knowledge as to the plaintiff’s condition, and there is evidence of only one accident alleged to have caused the trouble, such question need not contain all the circumstances surrounding the alleged collision since that was not disputed. The question and answer will be intelligible and the latter will be of probative force even if all the minutiae of the collision are not included..</p> <p>5. -: -: Omitting Necessary Elements: Objection Must Point Out Omission. If a hypothetical question is objectionable because it omits one or more necessary elements, an objection thereto, to be effective, must point out the supposed error, imperfection or omission, with sufficient certainty to reasonably call the trial court’s attention to the defect. Otherwise the overruling of the objection will not be error.</p> <p>6. —;--:--: Asking Expert for his Conclusion and not his Opinion: Invading Province of Jury. It is improper to ask an expert whether or not an alleged act caused plaintiff’s diseased condition, since that is the question for the jury to answer. And if the evidence discloses the existence and operation upon plaintiff of other causes than the one alleged and complained of, and for which other causes defendant is not liable, it is perhaps improper to ask plaintiff’s expert if the diseased condition was caused by the other causes, since the effect of such course is, by a process of elimination, to say that the cause alleged to have produced it did in fact produce it. But since there was no evidence of the existence and operation of any other causes in this ease than the one alleged and for which defendant would be liable, the asking of such a question as to two of such possible, but nonexistent, causes, is not reversible error. As 'there was no evidence of such other causes being present, but affirmative evidence that they were not, the jury could not fail to understand the answer, and the question, therefore, was not prejudicial.</p> <p>7. INSTRUCTIONS: Patent and Harmless Verbal Inaccuracy. Even if an instruction contained the word “conclusion” it is not rendered meaningless when the context shows plainly that the word was intended to be “collision.” A judgment must not be disturbed on account of such a patent and harmless verbal inaccuracy.</p>

<p>1. CAUSES OF ACTION: Accrued: Right,of Action: Limitations. A cause of action has accrued when a right to bring an action exists.</p> <p>2. MORTGAGES AND DEEDS OF TRUSTS: Interest: Installments: Limitations. A promissory note for $1500, secured by a trust deed and due in three years with interest payable in semiannual payments, provided “that on failure to pay any installment of interest when due, the holder may collect the principal and interest at once.” It was held that a default in the payment of an installment of interest gave a right to an action and therefore was the accrual of a cause of action which started the Statute of Limitations to running and barred a foreclosure of the deed of trust in ten years.</p> <p>3. BILLS AND NOTES: Installments: Option: Limitations. The fact that a note provides that on default in the payment of an installment of interest the holder "may collect the whole note” does not give him an option to collect or not so as to prevent the running of the statute from the day the installment became due and was unpaid.</p> <p>4. -: Payable on Demand: Accruing of Action. A contract payable on demand does not give the holder an option to thwart the Statute of Limitations by refraining to make the demand, but his right of action accrues on the day of its date and the statute begins to run on that day.</p> <p>5. INJUNCTIONS: Law: Equity. Injunction will lie to prevent the foreclosure of a deed of trust on the ground that the note secured by it is barred by limitations. In such case equity follows or applies the law period of limitations.</p>

<p>ATTACHMENTS: Partnership: Goods Sold and Delivered: Notice. When a partnership is dissolved and one of the partners retired from the business, it is not enough that he gives formal notice of the dissolution and his retirement in order to release him from responsibility for merchandise on hand, but he must obtain the consent of the creditor to his release from the obligation the partnership assumed as agent of the plaintiff.</p>

<p>DRAMSHOPS: Intoxicating Liquors: Clubs. Where a social club is clearly a bona-fide organization, with a limited membership, and admission into which cannot be obtained by any person at his pleasure and its property is actually owned in common by its members, a distribution of wine or other liquors belonging to such club, among its several members, is not a sale of liquor by retail or in original packages within the meaning and purview of our dramshop act, although technically the act-does amount to a sale for some purposes. The bona fides of the organization is in each case a question for the court, or the jury under proper instructions of the court.</p>

<p>DIVORCE: Collusion: Property Settlement. A compromise and settlement of pecuniary and property issues in a divorce suit is not denounced by the law as immoral or against public policy, but a bargain that there shall be no defense is collusion and any promise founded on such understanding cannot be enforced.</p>

<p>1. BANKS AND BANKING: Debtor and Creditor: Deposit. The plaintiff sued to recover $1245.47, belonging to him which was deposited to his brother’s account by a commission company in the defendant bank. The plaintiff and his brother were formerly in the business of buying and shipping hogs. They dissolved partnership, and the brother continued the business, but lost his credit and owed the defendant over $1000. Before his failure he instructed the commission company to apply his consignments to defendant bank, which he never revoked. The plaintiff employed him to assist in buying and shipping a carload of hogs. The stock was shipped and money deposited in defendant bank to the brother’s credit by the commission company, and defendant refused to pay it over to the plaintiff. Held, that the demurrer to the evidence was properly overruled.</p> <p>2. -: -: -. A general deposit in .a bank made by or for the account of a depositor creates the relationship of debtor and creditor between the bank and the depositor and there can be no question of the right of the bank to apply such deposit in payment of an indebtedness of the depositor to the bank without his consent.</p> <p>3. -: -: -. But the relationship of banker and depositor being contractual cannot be created except by mutual consent and since in this case the minds of the parties did not meet in mutual understanding and agreement, no lawful contract was made, and the defendant, having obtained possession of the funds by mistake and not for value, cannot be said to have any equitable claim to them.</p>

<p>1. BILLS AND NOTES: Payment and Satisfaction. Plaintiff bank held a note signed by a husband and wife given for money used in carrying on a business in the husband’s name. The husband sold the business and with the money paid off the note. Within four months thereafter he went into voluntary bankruptcy. His trustee then brought suit to recover the money so paid as being a preference void as to creditors and prevailed, and the money was paid back by the bank to the trustee. Thereupon the bank received on its claim against the bankrupt’s estate its pro rata share.' After the discharge of the husband in bankruptcy, the bank sued the wife for the remainder due on the note. The latter pleaded payment. Held, that the attempted payment by the husband was not a satisfaction of the debt since it was declared void by the court in the bankruptcy suit.</p> <p>2. JUDGMENTS': Binding on One not a Party by Way of Estoppel. The judgment operated upon the transaction between the husband and the bank and not on the title to the money. If incidentally it affected the wife’s title to the money, .the judgment bound her since she knew the trustee was endeavoring to recover it as the husband’s property and made no effort to prevent it. In addition to this, her alleged title to the money had passed to the bank, and it defended that title for her but was defeated because the court held that as she would have been estopped had she been a party so the bank, claiming under her, was estopped to claim the money as being hers.</p> <p>3. PLEADING: Estoppel: Necessity for not Disclosed. Ordinarily it is necessary for the one claiming estoppel to plead it in order to obtain the benefit of that principle. But where neither the facts nor the pleadings disclose to a party that a claim will be made against which estoppel can apply, but the claim arises only in the party’s theory of the case after the same is closed, the principle of estoppel can be invoked against such unexpected claim notwithstanding no plea of estoppel has been made.</p> <p>4. TRIAL PRACTICE: No Dispute as to Facts: Question of Law for Court. Where the facts are conceded, a question of law for the court arises which it should decide by a peremptory instruction to the jury to return the verdict the law demands.</p> <p>5. BANKRUPTCY: Accepting Voidable Preference: No forfeiture of the Debt. A creditor, by accepting a voidable preference, does not forfeit the debt. While he must return the preference received -he can participate, pro rata, in the estate of the bankrupt.</p> <p>6. -: Discharge of Bankrupt Personal to Him Only; The discharge of a bankrupt affects him only-and not the liability of a comaker of his note.</p>

<p>1. CONTRACTS: Partnership: Goods Sold and Delivered: Notice. The plaintiff, a wholesale merchant, sued to recover the value of goods sold and delivered to the defendant. The defendant retired from business, but gave no notice, until after the delivery of the goods. Held, that the question as to whether or not the plaintiff had notice of defendant’s retirement at the time of the delivery of the goods was properly submitted to the jury.</p> <p>2. -: -: -: -. Where an ostensible or known partner retires from a firm, he will still he liable for its debts and contracts as to all persons who have previously dealt with the firm and have no notice of his retirement. And this notice should be active and brought home to them, or, at least, credit must have been given under circumstances from which actual notice may have been inferred.</p>

—Hon. L. B. Woodside, Judge. (1) Before the broker negotiating the sale can put the vendor in the wrong and claim commission on the ground of vendor’s default in conveyance, he must show that his alleged purchaser had the ability; that is, the cash, ready to pay when he demands conveyance. 39 Cyc. 246-, note 93. Hayden v. Grill, 26 Mo. 289; Harmon v. Enright, 107 Mo. App. 560; Butler v. Baker, 33 Am. St. Rep. (R. I.) 897.

—Hon. Carr McNatt, Judge. (1) Instructions A and B given for the defendant are in direct conflict with No. 1 given for plaintiff. This is reversible error. Bluedorn v. Railroad, 108 Mo. 449'; Baker v. Railroad, 122 Mo. 595; Frederick v. Alger, 88 Mo. 602; Stone v. Hunt, 94 Mo. 479; Mansur-Tibbetts Co. v. Richie, 143 Mo. 612; Majtylock v. Coal Co., 188 Mo. 283; Sheperd v. Transit Co., 1&9 Mo. 373.

—Hon. L. B. Woodside, Judge. (1) The design of the statute upon which the charge here is founded is to prevent violations of the Local Option Law. State v. Boehler, 148 Mo. App. 614,128 S. W. 518; State v. Rawlings, 232 Mo. 544,134 S. W. 530; State v. Burns, 237 Mo. 222, 140 S. W. 871; State v. Clow, 131 Mo. App. 548, 110 S. W. 632. (2) It is not every handling or possession of whiskey which is unlawful. State v. Fulks, 207 Mo. 26, Í05 S. W. 733.

—Hon. L. B. Woodside, Judge. (1) A plaintiff cannot declare upon one cause of action and recover upon another, and the allegation and proof must substantially correspond. Jones v. Lauderman, 39 Mo. 287; Ischer v. St. Louis Co., 95 Mo. 261; Ingwerson v. Railroad, 205 Mo. 328; Litton v. Railroad, 111 Mo. App. 140; McMastér v. Railroad, 122 Mo. App. 313; Linville v. Green, 125 Mo.

—Hon. G. H. Skinker, Judge. (1) Plaintiff was not required to sell'the produce on notice or at the time the notes were due, even though authorized or requested to sell.- Story on Bailments, sec. 308; Franklin Sav. Inst. v. Preetorius, 6 Mo. App. 470; Muller v. Nichlos, 50 111.

—Eon. D. E. Blair, Judge. (1) The court erred in giving respondent’s instruction No. 3. This instruction makes appellants insurers of deceased’s safety and is bad law. Miles v. Coal & Coke Co., 157 S. W. 876; Saversnick v. Schwarzchild & Sulzberger Co., 141 Mo. App. 509; Hollingsworth v. Biscuit Co., 114 Mo. App. 20; Brunks v. Telegraph Co., 115 Mo. App. 36; Minnier v. Railroad, 167 Mo. 112-113.

—Hon. Joseph D. Perkins, Judge. (1) An innuendo may be treated as surplusage where it is used in connection with words which are unequivocal and actionable per se, and where plaintiff has, in action for libel, by an innuendo, put a meaning on the alleged defamatory matter which is not supported by its language or by proof, the court may, nevertheless, submit the case to the jury, if the publication is defamatory per se.

Writ of Error to Jasper County Circuit Court. Division Number One—Hon. Joseph D. Perkins, Judge. (1) A license is a contract, and a licensee has a right to enjoy it as long as he complies with its terms. Boone v. Stover, 66 Mo. 430; Sheppard v. Drake, 61 Mo. App. 134; Mining Co. v. Felton, 78 Mo. App. 210'; Lytle v. James, 98 Mo. App. 342; Mining Co. v. Mining Co., 106 Mo. App. 66.

—Eon. Arch A. Johnson, Judge. (1) An instruction which, by its terms and plain meaning covers the whole case and, on the facts therein stated, peremptorily directs a verdict for plaintiff,, must cover every phase of the case and must include the defenses interposed. Stewart v. Andes, 110 Mo. App. 243; Scanlan v. Gulick, 199 Mo. 449; Austin v. Transit Co., 115 Mo. App. 146; Johnson v. Railroad, 117 Mo. App. 308; Rudd v. Fire Co., 120 Mo. App. 1; Abbott v. Mining Co., 112 Mo.

—Mon. Guy D. Kirby, Judge. (1) Representations which amount merely to an expression of opinion and which do not imply knowledge and about which men differ are not fraudulent, although not true and known to be so by the party making them and afford no relief against a contract. 1 Bigelow bn Fraud, p. 473; Brown v. L. & Z. Co., 194 Mo. 681; Cornwall v. Real Estate Co., 150 Mo. 377; Wilson v. Jackson, 167 Mo. 156; Harrison v. Walden, 89 Mo.

—Hon. G. H. Skinker, Judge. (1) L. C. Taylor, husband of appellant, was her agent and was a competent witness and his agency was proven by his testimony and other facts and circumstances in evidence. Jackson v. Smithy 139 Mo. App. 691; Christian v. Smith, 85 Mo. App. 122; Leete v. Bank, 115 Mo. 184; Joplin ex rel. v. Freeman, 125 Mo. App. 724; Monroe v. Railroad, 154 Mo. App. 51- _ 69; Close v. Hurst, 151 Mo. App. 77; R. S. 1909, sec. 6359.

—Hon. D. E. Blair, Judge. (1) There are two tests by which to determine whether an amended petition is a departure from the original and states a new cause of action: First, whether the same evidence will support the petitions, and second, whether the same measure of damages will apply to both. If these tests are answerable in the affirmative it is an amendment; if in the negative it is a substitution. Liese v. Meyers, 143 Mo. 547; Robertson v. Springfield & S. R. Co., 21 Mo.

—Hon. W. N. Evans, Judge. The verdict and judgment for exemplary damages is good, although no actual or nominal damage is given. The only party to the record who could question a verdict of this kind is the plaintiff. The defendant is in no position to raise any objection to it. He cannot complain the verdict is for less than it should he. Tifl.mpp.rt v. Drug Co., 141 S. W. 1097, and cases cited; Hoagland v. Amusement Co., 170 Mo. 345; Ferguson v. Publishing Co., 72 Mo.

—Hon. W. N. Evans, Judgre. (1) Waters to be'navigable nmst be so far navigable or floating in the natural state and in their ordinary capacity as to be of public use in the transportation of property. Waters which can be made navigable or floatable only by artificial means are not public highways. McKinney v. Northcutt, 89 S. W. (Mo.) 351, and authorities cited; Holden v. Mfg.

—Hon. John T. Moore, Judge. Where the seller consigns a shipment to his own order, and draws upon thé purchaser for the purchase price, attaching the hill of lading to the draft, and sends the latter to his agent for collection before delivery of the hill of lading, the jus disponendi remains in the seller until payment of the draft, and replevin will not lie on behalf of the.purchaser until such payment is made. Bergeman v. Railroad, 104 Mo. 77; Bank v. Milling Co., 163 Mo.

—Hon. Joseph D. Perkins, Judge. (1) Where a suit is dismissed, either by the plaintiff or by the court, under the law the court has no authority to do anything save tax the costs against the plaintiff. Sec. 2275, R. S. 1909; Schafer v. Roberts, 166 Mo. 84; Thompson v. Elevator Co., 86 Mo. 333. (2) This rule applies in partition as well as in other eases. Appleman v. Appleman, 140 Mo. 309.

Original Proceeding- In Mandamus. No such case as that of S. M. Chapman, plaintiff, v. Charles D. Yancey, Henry N. Phillips and Sam M. Phillips, defendants, Charles D. Wilson, garnishee, Louisa E. Graves, Elizabeth Graves and Alice Mohan, was ever docketed in, submitted to, or adjudicated, in the circuit court of Stoddard county, Missouri.

<p>1. CRIMINAL LAW: Information: Essentials of. It is .not essential that an information conform strictly and technically to the rules of grammar and rhetoric. It is only necessary that it should inform the defendant of the nature and cause of the accusation.</p> <p>On Motion for Rehearing.</p> <p>2. COURTS: Supreme Court: Decisions of: Binding Effect. The decisions of the Supreme Court of Missouri are binding on the appellate courts.</p> <p>3. CRIMINAL LAW: Information: Common Assault. An information for common assault may be good without any averment as to striking, beating or wounding.</p> <p>4. -: Common Assault: Information Examined: Held Sufficient. An information for common assault is examined, and, though criticised as being carelessly drawn and faulty in construction, held sufficient to fully inform the defendant of the nature and cause of the accusation against him.</p>

Guy D. Kirby, Judge. (1) Defendant was not required to place the yard in a condition of safety for horses. Marchek v. Klute, 133 Mo. App. 280, 290; Korack v. Loeffel, 168 Mo. App. 421; Glaser v. Rothchild, 106 Mo. App. 418. (2) In the absence of an express warranty that the desired premises are in good repair or fit for a particular, use, the law does not imply such a warranty. Burns v. Fuchs, 28 Mo. App. 279, 281; Ward v. Fagan, 28 Mo.

<p>COSTS: General Rule as to: Exceptions. Plaintiff prevailed in a suit to cancel a note and deed of trust and to enjoin the sale by the defendant of the land covered by the deed. Under section 2363 which provides that the prevailing party shall recover costs, held, plaintiff was entitled to costs, the instant ease not falling under the exceptions to the general rule as to costs as set out in Sec. 2275, R. S. 1909.</p>

—Ron. John T. Moore, Judge. The cashier of the bank, took charge of the checks in question, thus depriving the holder of the possession of same, and promised to give Holt a deposit on reaching the bank next morning. Here were such acts on the part of the bank and Holt as to pass the title of the checks to the bank, and any subsequent attempt to stop payment came too late. Kavanaugh v. Bank, 59 Mo.

<p>1. VERDICT: Evidence to Support: Appellate Court Will not Disturb. The appellate court will not disturb a verdict unless there is an absence of substantial evidence to support it, the rule in civil and criminal cases being' the same in this respect.</p> <p>% LOCAL OPTION LAW: Prosecution for Violation of: Insufficient Information. Information examined in a prosecution for violation of the Local Option Law and considered insufficient. [ROBERTSON,. P. J., dissenting.]</p> <p>3. -: Information: Necessary Allegations as to Adoption. An information charging a violation of the Local Option Law must allege either the particular facts which show that such .law was adopted and put in force on a particular date or allege generally that such law had been adopted and was in force on the day of the alleged violation.</p> <p>4. -: Violation of: Information: Essential Allegations. An information charging a violation of the Local Option Law is deficient .if it fails to allege when the law was adopted ' or that it was in force at the time of the alleged violation.</p> <p>5. CRIMINAL LAW: Offense to be Clearly Stated: No Intendments or Implications. In criminal prosecutions everything constituting the offeifse must be set forth with certainty and clearness and nothing material is to be taken by intendment or implication.</p> <p>6. LOCAL OPTION LAW: Omission of Allegation as to Date of Adoption: Fatal. The same strictness is not required in indictments and informations for misdemeanors as in those for felonies. But the omission of the allegation as to the time when the Local Option Law was adopted in a certain county is too material to be supplied by implication or intendment.</p> <p>7. CRIMINAL LAW: Identification of Accused: Certainty of. In a criminal prosecution the accused must be identified beyond a reasonable doubt as the person who actually committed the crime. Evidence in a prosecution for violation of the Local Option Law reviewed and considered deficient in this respect. [Per FARRINGTON, J.] . ’</p> <p>8. LOCAL OPTION LAW: Information: Objectionable Parts Stricken out. An information should not be held defective or insufficient if enough remains to constitute it good after striking out the objectionable parts. Information in a prosecution for violation of the Local Option Law examined and considered sufficient. [Per ROBERTSON, P. J.] .</p>

—Ron. John T. Moore, Judge. (1) The written contract was complete within itself and purported to contain the entire agreement. Parol evidence was inadmissible to take from or enlarge same. Turner v. Railroad, 20 Mo. App. 632; Harkness v. Briscoe, 47 Mo. App. 196; Williams v. Stifle, 64 Mo. App. 138; Reed v. Nicholson, 37 Mo. App. 646: Bank v. Brisch, 154 Mo. App. 631; Robinson & Co. v. Ligón, 146 Mo.

Appea] from St.' Louis City Circuit Court.—How. Charles Claflin-Allen, Judge. (1) The demurrer to the evidence should have been sustained. The injury to plaintiff may have resulted from mere accident or from the negligence of a fellow-servant. Plaintiff failed to make out a case because his evidence fails to show the injury resulted from a cause for which the master was responsible. Goransson v. Mfg. Co., 186 Mo. 307.

Louis City Circuit Court.'—Hon. Hugo Muench, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence, (a) Because the evidence failed to show the defendant was negligent in the respects charged in the petition. Mueller v. Railways, 155' Mo. App. 528; Beve v. Transit Co., 212 Mo. 68; Monroe v. Railroad, 155 Mo. App. 710. (b) Because it is physically impossible for the accident to have happened the way plaintiff claims it did.

<p>1. NEGLIGENCE: Leaving Team Unguarded in Street: Pleading: Specific Negligence. In an action for personal injuries resulting from a collision between a buggy in which plaintiff was sitting and defendant’s runaway team, where the petition alleged that the collision occurred by reason of defendant’s negligence in leaving its team standing at a street corner, without being fastened or guarded to prevent their running away, it devolved upon plaintiff to prove the specific acts of negligence alleged, under the rule that, where specific acts of negligence are charged, plaintiff can recover only upon proof of such specific negligence.</p> <p>2. -: -: Sufficiency of Evidence. In an action for personal injuries resulting from, a collision between a buggy in which plaintiff was sitting and defendant’s runaway team, evidence held to authorize submission to the jury of the question whether defendant’s horses had been permitted to remain unguarded and untied in the street, in violation of a city ordinance.</p> <p>3. TRIAL PRACTICE: Demurrer to Evidence: Rules of Decision. In determining whether ór not a verdict should be directed for defendant, the court should indulge .every reasonable inference in favor of plaintiff that may fairly be drawn from the testimony.</p> <p>4. NEGLIGENCE: Leaving Team Unguarded in Street: Pleading: Specific Negligence: Instructions. In an action for personal injuries resulting from a collision between a buggy in which plaintiff was sitting and defendant’s runaway team, the petition pleaded specific acts of negligence, in that the team had been left untied and unguarded in a public street, in violation of a municipal ordinance. Plaintiff requested the court to instruct the jury, that if defendant’s wagon collided with plaintiff’s huggy while standing in the street and threw plaintiff to the ground, and that, at the time of the collision, the horses attached to the wagon were running away, and, prior to that time, had been left standing at or near a street corner hy defendant or its servant, without being fastened or guarde.d to prevent their running away, then plaintiff was entitled to recover. The court gave the instruction after striking out the phrase italicized. Held, that the instruction, as modified hy the court, was erroneous, since its effect was to authorize a recovery by plaintifE without requiring a finding that defendant was guilty of the-specific negligence charged.</p>

Louis County Circuit Court.—Hon. G. A. Wurdemann, Judge. (1) This was a common law arbitration and award, which is sought to be set aside by a court of equity. Railroad v. Elliott, 56 Fed. 772; Ins. Co. v. Galine, Í14 Ala. 366; Oakes v. Moore, 24 Me. 214; Van Courtland v. Underhill, 17 Johns. (N. Y.) 405. (a) The test is this: Was there a difference or controversy between the parties ¶ If so, it was an arbitration and not an appraisement. Russell on Arb.

<p>Appeal from Pemiscot Circuit Court.—Hon. Henry C. Riley, Judge.</p>

Louis .County Circuit Court.—Eon. G. A. Wurdeman, Judge. (1) The court erred in overruling appellant’s motion in the nature of a demurrer to' the .evidence at the close of plaintiff’s case, for the reason that the evidence did not disclose a partnership between the appellant and the person named Ellis in said assignment upon which respondent’s action was based, nor was said cause tried by respondent on the theory of a partnership between appellant and said party, but on the…

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

—Hon. B. H. Dyer, Judge. (1) (a) The striking of plaintiffs’ amended reply and the rejection of plaintiffs ’ offer to pay into court the amount of the mortgage when ascertained was erroneous. 3 Cyc. 483; Kessler v. Kuhnle, 158 Mo. App. 636.

Louis City Circuit Court.—Ron. Leo S. Rassieur, Judge. (1) The expressed terms of a contract govern the interpretation to he given to said agreement and the terms used are to be given their accepted meaning. Webb v. Ins. Co., 134 Mo. App; 580; Rogers v. Modern Brotherhood, 131 App. 353; Donovan v. Beck, 217 Mo. 70; Lovelace v. Assn., 126 Mo. 104; Linseed Co. v. Eberson, 126 Mo. App. 426.

Louis City Circuit Court.—Now. George N. Shields, Judge. (1) Instruction No. 15, defining the measure of damages, given at plaintiff’s request, is erroneous for the reason it authorized the jury to assess damages for loss of time by plaintiff, when no claim for loss of time was made in the petition. Coontz v. Railroad, 115 Mo. 669, 673; Slaughter v. Railroad, 116 Mo. .269, 274; King v. Railroad, 129 Mo. App. 301, 304; F'errier v. Mercantile Co., 158' Mo.

Louis City Circuit Court.—Hon. Charles Claflin Allen, Judge. (1) The letter sued on is not a direct promise, bnt merely a prospective or contingent guaranty and required a distinct notice of acceptance by the bank. The judgment should be reversed for error of the trial court in holding the latter to a binding contract whenever acted upon by plaintiff without regard to whether defendants were ever apprised of that fact or not. Bank v. Goldstein, 86 Mo.

Louis Circuit Court.—Hon. George C. Hitchcock, Judge. If the treasurer of a corporation is a defaulter, and his defalcation is as yet unknown and unsuspected, and he steals money from a- third person, and places it with the funds of the corporation in order to conceal and make good his defalcations, and the corporation uses the money as its own, no other officer knowing any of the facts, the corporation does not thereby acquire a good title to the money as against the true…

Louis City Circuit Court.—Hon. W. B. Homer, Judge. (1) Undoubtedly, pending tbe incorporation,' the Darties to the contract in this case were liable as partners to third parties.

Louis City Circuit Court.—How. Charles Claflin Allen, Judge. ■ (1) The verdict and judgment are against the law because the circuit court of the city of St. Louis had no jurisdiction to try this case—the case having originated in justice court, and plaintiff seeking to recover $500 and 10 per cent of the same as damages, and a reasonable attorney’s fee for vexatious refusal to pay, such justice of the peace court had no juris■diction to try the case. Sec. 7615', R. S. 1909.

<p>1. DRAINAGE DISTRICTS: Defective Organization: De Facto Corporation. A county court, by an order of record, ordered that certain territory be incorporated as a drainage district and appointed commissioners therefor, pursuant to Art. V of Chap. 122, R. S. 1899. One of the landowners affected filed a remonstrance against the report of the commissioners, which was overruled by the county court. He then appealed, suceéssively, to the circuit court and to the Supreme Court. The latter court reversed the order purporting to create the district, on the ground that the wife of one of the commissioners owned land in the district, and remanded the cause to the county court, reserving to the petitioners, however, the right to proceed on the same petition and to have the same territory and the same inhabitants incorporated. [King’s Lake Drainage & Levee' District v. Jamison, 176 Mo. 557.] Held, that, inasmuch as the order of the county court was not void on its face, the cor-, poration organized thereunder was a de facto corporation.</p> <p>Held, by REYNOLDS, P. J., dissenting, that under the decision in King’s Lake Drainage & Levee Dist. v. Jamison, supra, especially in view of the interpretation of that decision in-Wilson v. King’s Lake Drainage & Levee Dist., 237 Mo. 39, the order of the county court was void and that the corporation attempted to be organized thereunder was not a de facto corporation.</p> <p>2. -: -:--: Relation of Succeeding Corporation: Liability for Work Performed for Old Corporation. A county court, by an order of record, ordered that certain territory be incorporated as a drainage district and appointed commissioners therefor, pursuant to Art. Y of Chap. 122, R. S. 1899. One of the landowners affected filed a remonstrance against the report of the commissioners, which was overruled by the county court. He then appealed, successively, to the circuit court and to the Supreme Court. The latter court reversed the order purporting to create the district, on the ground that the wife of one of the commissioners owned land in the district, and remanded the cause to the county court, reserving to the petitioners, however, the right t’o proceed on the same petition and to have the same territory and the same inhabitants incorporated, which right was availed of and a new corporation organized, covering the same territory and inhabitants. The original corporation had contracted for the construction of a levee, and the work was completed and warrants on the treasury were issued for the contract price thereof. The new corporation took over this levee and it became part of the levee which it was organized to construct. Held, that thé new corporation was a continuation of the de facto corporation which went out of existence by virtue of the judgment of the Supreme Court, and hence it is liable in equity for the value of the levee constructed for the de facto corporation and taken over by it, and although the warrants issued for such work by the de facto corporation are void, the obligation to pay for the work still subsists.</p> <p>Held, by REYNOLDS, P. J., dissenting, that the Supreme Court having held that the corporation attempted to be organized under the first order of the county court was not a legally organized body, such putative corporation could not have a successor; and that the drainage district subsequently . . organized is not liable for the value of the levee, since its commissioners had no authority to accept the levee and have none to pay for it.</p> <p>3. PLEADING: Demurrer Admits Well-pleaded Facts. A demurrer to a petition admits all facts that are well pleaded.</p> <p>4. DRAINAGE DISTRICTS: Character: Municipal Corporations. A drainage district, organized under Art. Y of Chap. 122, R. S. 1899, is a municipal corporation.</p> <p>5. MUNICIPAL CORPORATIONS: Reorganization: Liability of Succeeding Corporation. Municipal corporations do not extinguish their debts by merely changing their names or reorganizing under new charters, and especially is this true where the new corporation succeeds the old one to conserve the same purposes, for the same inhabitants, in the same territory.</p> <p>6. DRAINAGE DISTRICTS: Defective Organization: Relation of Succeeding Corporation: Liability for Work Performed for Old Corporation: Estoppel. A county court, by an order of record, ordered that certain territory be incorporated as a drainage district and appointed commissioners therefor, pursuant to Art. V of Chap. 122, R. S. 1899. One of the landowners affected filed a remonstrance against the report of the commissioners, which was overruled by the county court. He then appealed, successively, to the circuit court and to the Supreme Court. The latter court reversed the order purporting to create the district, on the ground that the wife of one of the commissioners owned land in the district, and remanded the cause to the county court, reserving to the petitioners, however, the right to proceed on the same petition and to have the same territory and the same inhabitants incorporated, which right was availed of and a new corporation organized, covering the same territory and inhabitants. The original corporation had contracted for the construction of a levee, and the worlc was completed and warrants on the treasury were issued for the contract price thereof. The new corporation took over this levee and it became part of the levee which it was organized to construct. Held, that Sec. 5573, R. S. 1909 authorized the new corporation to take over the levee already constructed, and its action in so doing being, therefore, within the scope of its powers, it was estopped from denying reasonable compensation to those who constructed the levee and who had not been compensated, even though the body for which such work was performed was not even a de facto corporation.</p> <p>Held, by REYNOLDS, P. J., dissenting, that in view of the decision of the Supreme Court, declaring that the corporation attempted to be organized under the order reversed had no legal existence, Sec. 5573 is not applicable, since the levee was “not constructed under any law of this State.” Held, further, that the estoppel theory should not be applied, for the reason that the claim asserted is void, and, to recover on the theory of an estoppel, the claim asserted must be valid. Held, further, that the commissioners of the drainage district had no authority, under the statute, to accept or pay for the levee, and that their act in accepting and using it, not being within their powers, constitutes no estoppel against the landowners of the district.</p> <p>7. MUNICIPAL CORPORATIONS: Estoppel: Ultra Vires and Intra Vires. While an estoppel may not be invoked against a municipal corporation, where it acts beyond the scope of the power conferred upon it, yet where it enters into a contract or becomes obligated by operation of law, within the scope of its powers, the doctrine of estoppel obtains against it with the same force and effect as against an individual.</p> <p>8. ACTION: Splitting Cause of Action: Pleading: Sufficiency of Petition. In an action against a drainage district for the value of work performed for a preceding district by plaintiff’s assignor, the petition is held invulnerable against an attack that it showed that plaintiff sued for only a portion of the amount due for performing such work.</p> <p>Held, by REYNOLDS, P. J., dissenting, that the petition discloses that other claims growing out of the same transaction are outstanding and, therefore, the petition is bad because it shows a splitting of the cause of action counted on.</p> <p>9. DRAINAGE DISTRICTS: Defective Organization: Relation of Succeeding Corporation: Liability for Work Performed for Old Corporation: Equity: Defenses. A levee, constructed by plaintiff’s assignor under a contract with a drainage district, which, because of defects in its organization,, was adjudged by the Supreme Court to have no legal existence, was taken over by a succeeding drainage district. Plaintiff brought suit against the latter district on the theory that it was liable in equity for the reasonable value of the levee which it had thus appropriated and for which neither plaintiff nor his assignor had been compensated. Held, that plaintiff was not precluded from recovering, on the ground that his assignor constructed the levee while the case in which such adjudication was made was pending in the Supreme Court and that the claim was therefore without equity, since the contract was made with a de facto corporation before the appeal was perfected, and the work sued for was performed before the Supreme Court invalidated such corporation.</p> <p>Held, by REYNOLDS, P. J., dissenting, that plaintiff’s assignor had constructive notice, at the time he was constructing the levee, that proceedings, challenging the validity of the organization of the putative corporation which awarded him the contract, were pending, so that he was not an innocent party, and hence neither he nor his assignor is entitled to the aid of a court of equity to recover the value of such work.</p>

Original Proceeding in .Prohibition. (1) An application for a subpoena duces tecum for an inspection or for the production of documentary evidence, must so state the facts as that the court may therefrom determine the materiality and necessity thereof. It is not enough to say that they are material or necessary, because the court, and not the litigant, must determine that question.

—Hon, William I. Ragland, Judge. (1) The petition in this case is in two counts. The first count is based upon'the statute for failure to properly guard and alleges that it was the duty of plaintiff to put a belt on, and while in the discharge of such duty he was injured. In the second count, plaintiff alleges that the defendant, in violation of its duty, failed to have a competent machinist or person to replace the belt on the pulley when it was necessary.

<p>1. INSURANCE: Construction of Policies. The provisions of insurance policies are to be liberally construed in favor of the insured, and when the language is of doubtful import, or is susceptible of two interpretations, that construction is to be adopted which is most favorable to the insured.</p> <p>2. LIFE INSURANCE: Default in Payment of Premiums: Paid-up Policy: Policy Construed. Under a life insurance policy, providing for the payment of a certain sum, upon satisfactory proof of the death of insured, less any indebtedness owing by insured to insurer, and further providing that if the third or subsequent annual premium -should not be paid when due, insurer would (“there being then no existing indebtedness as aforesaid”) continue the policy as paid-up insurance for a certain amount, an indebtedness owing insurer by insured, at the time of default in the payment of an annual premium, did not defeat the right to paid-up insurance; the quoted sentence not constituting a condition precedent, but merely providing for the deduction of any indebtedness owing by insured from the paid-up insurance, in the same manner that, under a previous clause, indebtedness is to be deducted from the amount of insurance which is payable in the event no default occurs.</p>

Louis City Circuit Court.—How. George H. Shields, Judge. (1) The demurrer to the evidence ought to have been sustained, (a) If insured was not in sound health at the date of the policy, and his then condition contributed to cause his death, there could be no recovery. R. S. 1909, sec. 6937; Salts v. Insurance Co., 140 Mo. App. 149; Frazier v. Insurance Co., 161 Mo. App. 709; Welsh v. Insurance Co., 165 Mo. App. 137.

— Mon. W. W. Barnes, Special Judge. (1) The recitals of the policy are conclusive and binding on the parties as to the payment of the premiums, and cannot be denied for the purpose of affecting any rights arising on the contract. The court erred in holding the contrary. Rose v. Mo. State Life Ins. Co., 148 S. W. 181; Dobyns v. Ins. Co., 144 Mo. 95'; Wishart v. Gerhart, 105 Mo. App. 112.

Louis City Circuit Court.—Ron. W. B. Homer, Judge. (1) The demurrer to plaintiff’s second amended petition should have been sustained. The first count of said second amended petition, upon which the cause was tried, failed to state facts sufficient to constitute a cause of action. (2) The circuit court erred in striking out the second and third defenses set up by ’defendant, Bambrick Bros. Construction Company, in its answer to said amended petition.

Francois Circuit Court.—Hon. Peter H. Huele, Judge. The bond sued on is an indemnifying bond, is so denominated by the statute and the decisions of the courts of this State. Sec. 7551, supra'; Smith to use v. White, 48 Mo. App. 404; State ex rel. v. Slavback, 90 Mo. App. 300.

Louis City Circuit Court.—Row. W. M. Kinsey, Judge. (1) Tire court erred in refusing to give tbe two-peremptory instructions, in tbe nature of demurrers, offered by tbe defendant at tbe close of tbe plaintiff’s and at tbe close of tbe entire case, (a) Tbe policy insured only against illnesses commencing after tbe date upon wbicb tbe policy was issued.

Francois Circuit Court.—How. Peten H. Huele, Judge. (1) The judgment appealed from is a judgment in personam; for it is for a definite sum of money to be recovered by fi. fa. execution from the general property of the defendant, William Elvins. Beyer v. Trust Co., 63 Mo..

<p>Appeal from St. Louis City Circuit Court..—Hon. W. - . B. Homer, Judge.</p>

Louis City Circuit Court.—Hon. W. B. Homer, Judge. (1) The petition, in both counts stated facts sufficient to constitute a cause of action against all the defendants. Especially is this true where, as here, the demurrer admitted every allegation of both counts of such petition. Anable v. Land Co., 144 Mo. App. 312; Yerdin v. St. Louis-, 131 Mo. 74; Randolph v. Wheeler, 182 Mo. 154.

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

—Hon. E. M. Bearing, Judge. (1) The court erred in overruling the demurrers to the evidence. It is admitted that the policy was avoided by the mortgage and no facts are proven which show a waiver. Oehler v. Ins. Co., 159 Mo. App. 708; Francis v. Lodge, 150 Mo. App. 347. (2) An agent for writing insurance has no authority to adjust dr in any way to represent the company after a loss. Hauser v. Ins. Co., 66 Mo. App. 30.

Louis City Circuit Court.—Hon. Hugo Muench, Judge. (1) The evidexice offered by the plaintiff was insufficient to justify the submission of the case to the jury as. to the McMahon property. ■ Gould v. St. John, 207 Mo. 619; Sallee v. McMurry, 113' Mo. App'. 264; Crain v. Miles, 134 S. W. 55.

Louis City Circuit Court.—Hon. George H. Shields, Judge. (1) The guaranty in this case is absolute, and the liability of the guarantors is. commensurate with that of principal debtor, and no demand and notice of nonpayment was necessary to bind the guarantors; nor was it necessary for the creditor, the plaintiff, to use any diligence to enforce payment from the principal debtor. Printing Company v. Belcher, 127 Mo.

<p>Appeal from St. Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge.</p>

Louis City Circuit Court.—Mon. Charles Claflin Allen, Judge. (1) Plaintiff’s instruction No. 1 is erroneous, because: (a) It instructs the jury that the conditions which that instruction tells the jury required a verdict did exist “as facts” and thus took all the material issues from the jury. J ames v. Railroad, 107 Mo. 48,4.