Volume 177 — Missouri Appeal Reports

—Eon. Walter A. Powell, Judge. (1) The petition failed to state a cause of action against this defendant and the objection to this introduction of -testimony should have been sustained.- It shows on its face that the proximate cause of the injury complained of was not the act of this defendant. It failed to allege that the city had a reasonable time after notice and prior to the injury to remedy the conditions. Barnes v. St. Joe, 1'51 Mo.

<p>Appeal from Sullivan Circuit Court.—Hon. Fred Lamb, Judge.</p>

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

—Hon. J. G. Slate, Judge. (1) Plaintiff, for a valuable consideration, agreed to give notice within one day after the stock reached destination, of any claim he might have. This notice could have been given as readily within one day as within two days. This stipulation is valid and binding. McKinstrey v. Railroad, 153 Mo. App. 552; MeElvain v. Railroad, 151 Mo. App'. 141; Moore v. Eailroad, 143 Mo. App. 675; Shelton v. Eailroad, 131 Mo. App. 560; Freeman v. Eailroad, 118 Mo.

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

—Hon. Alex H. Waller, Judge. The court erred in finding against the plaintiff, and dismissing his bill. The rule is well settled in this State that the reservation in a lease, of a specific lien on personal property, is equivalent to, and is, in effect, a chattel mortgage. Faxon v. Ridge, 87 Mo. App. 299, 306; Feller v. McKillip, 100 Mo. App. 660, 664; Saunders v. Ohlhausen, 127 Mo. App. 546, 551.

<p>1. FRATERNAL BENEFICIARY ASSOCIATION: Certificate: Proofs of Death: Forfeiture: Waiver. If a beneficiary society issues a benefit certificate of life insurance providing that it may be forfeited for nonpayment of monthly dues and after-wards notifies the beneficiary that it will not pay on the ground that the certificate was forfeited and enters it on its books as forfeited and returns dues sent to it on the ground that there is no existing policy and follows this by pleading such forfeiture, proofs of death are waived.</p> <p>2. -: Demand of Proofs After Time: Expense: Waiver. If a beneficiary demands payment of a benefit certificate after time when proofs of death should be made and the company asks that proofs he made, thereupon the beneficiary dismisses an action it had brought and makes the proof on blanks furnished by the company, expending time, labor and money thereon and sends them to the company who returns them on the ground that they were not made in time; it was held that the matter of time in which the proofs should have been made was waived.</p>

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

<p>1. NEW TRIAL: Briefs: Errors Complained of. Where the alleged errors briefed in an appellate court are not made grounds in the motion for new trial, they will not be noticed in such court.</p> <p>2. -—: Jury Waived: Instructions: Evidence. Where a cause is submitted to the coúrt without a jury and no instructions are asked, it will be presumed that the case was tried on a proper theory of law and if there is any substantial evidence to support the finding of facts the judgment will be affirmed.</p>

<p>Error to Adair Circuit Court.—Hon. Samuel Davis, Judge.</p>

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

<p>1. BILLS AND NOTES! Consideration. Plaintiff held a judgment against a corporation which owed many other debts for which defendants were security. One of the defendants also owed plaintiff a note for one-half the sum advanced by plaintiff for the corporation and for which his judgment had been rendered. The corporation desired to sell some of its land in order to pay its debts. It could not do so unless plaintiff as holder of the judgment consented. Defendants were anxious that the sale of the land be made in order that the debts they were surety for could be paid. They agreed to give plaintiff the two notes sued on if he would allow the money derived from the sale to be used in paying the other debts. Plaintiff consented and took the two notes, the other debt of the corporation was paid and defendants were discharged from liability thereon. Plaintiff also delivered to one of the defendants the note he held against him and the collateral security therefor. Held, there was a consideration for the notes in suit independent of the fact that plaintiff agreed to take a deed to the land sold and to hold it as trustee to secure defendants and other creditors and sureties of the corporation.</p> <p>2. -: Discharge. Under Sec. 10089 of the Negotiable Instrument Act, It. S. Mo. 1909, when the payee of a note tears it up, with the intention of destroying and cancelling it, this is a discharge of the note.</p> <p>3. TRIAL PRACTICE: Findin'g of Fact by Trial Court, in Law Case, Conclusive. If such agreement to take and hold the land as trustee was a part of the consideration, then it has not been shown that plaintiff violated that agreement since the trial court, sitting as a jury, found that he had not, and such finding must be accepted as conclusive where there is any substantial evidence to support it.</p>

—Son. L. J. Eastin, Judge. (1) The locked out employees were within their legal rights in picketing the plaintiff’s plant in a peaceable, quiet and orderly, manner. St. Louis v. Gloner, 210 Mo. 502; Shoe Co. v. Saxey, 131 Mo. 212; Door Co. v. Fuelle, 215 Mo. 421. (2) The judgment for damages herein based upon the evidence of loss of profits was too remote, speculative and dependent upon changing circumstances to warrant it in law. Howard v. Manufacturing Co., 139 TJ.

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

—Eon. D. E. Earris, Judge. (1) The petition does not state facts, sufficient to constitute a cause of action and defendant’s demurrer should have been sustained. The defendant had a lawful right on the street, and was using an ordinary sprinkling wagon, which is in use on the streets nearly every day in the year, and is no object to scare horses •of ordinary gentleness. 28 Cyc. 1381; 1401-1402; Meyer v. K. C., 108 Mo. App. 108 and 480'; 28 Cyc. 1455 and 1426.

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

<p>1. REAL ESTATE BROKERS: Employee: False Representations. The owner of property was represented with the owner’s knowledge in negotiating its sale by an employee in the office of the real estate brokers who were the owner’s agents for its sale. It was held that such employee was the owner’s agent and he was bound by the representations made by such employee concerning leases- on the property and when possession could be had.</p> <p>2. -■: Advance Payment: False Representations. If the contract for the sale of real estate fails of consummation by reason of the false representations of the owner’s agent, the purchaser may recover back an advance payment on the purchase price made to the agent.</p>

<p>NEW TRIAL: Weight of Evidence. Where there is sufficient evidence against a verdict to have upheld it had it been for the other party, the trial court’s discretion in granting a new trial because the verdict is against the weight of the evidence will not be disturbed.</p>

<p>Appeal from Boone Circuit Court.—Hon. D. H. Harris, Judge.</p> <p>(1) Telegrams as writings comply with the Statute of Frauds. Whaley v. Hinchman, 22 Mo. App. 483; Donovan v. Brewing Co., 92 Mo. App. 345; Leesley Bros. v. Fruit Co., 162 Mo. App. 202; Peyote v. Ahrens, 98 Mo. App. 456; Little v. Dougherty, 17 Pae. (Colo.) 292; Flouring Mills Co. v. Butterfield, 61 Pac. (Colo.) 479. (2) Several writings may he taken together as constituting a contract within the Statute of Frauds and reference to the same subject-matter is sufficient to connect them without more specific reference. Leesley Bros. v. Fruit Co., 162 Mo. App. 202, 203; Peycke Bros. v. Ahrens, 981 Mo. App. 456; Flouring Mills Co. v. Butterfield, 61 Pac. (Colo.) 479.</p> <p>The written memoranda of the agreement is not sufficient to take the case out of the Statute of Frauds of either Missouri or Colorado. It doesn’t contain a promise to pay. 1 Brand on Suretyship (3 Ed.), sec. 162; Browne Statute of Frauds (5 Ed.), p. 506; Tremaine v. Dyott, 161 Mo. App. 217.</p>

<p>Appeal from Jackson Circuit Court.—Hon. James H. Slover, Judge.</p> <p>' (1) Plaintiff is not entitled to recover, because lie was engaged in repair work, making an unsafe place safe, and therefore assumed the risk. Henson v. Packing Co., 113 Mo. App. 618; Nash v. Brick Co., 109 Mo. App. 605; Bloomfield v. Construction Co., 118 Mo. App. 258; Armour v. Hahn, 111 U. S. 313; “Wilson v. Railroad, 122 Mo. Appi. 667; Bennet v. Lime Co., 146 Mo. App. 572. (2) The trial court committed reversible error when it permitted plaintiff,, over defendant’s, objection, to introduce his petition in evidence, and permitted plaintiff to read said petition to the jury as part of the evidence. Wrightsman v. Herriens, 130 Mo. App. 266; Stevens v. Crane, 116 Mo. 413; Kirkpatrick v. Railroad, 211 Mo. 80; Jordan v. Transit Co., 202 Mo. 428; Pandjiris v. Hartman, 196 Mo. 539, 547; Elliott v. Sheppard, 179 Mo. 382. '</p>

<p>1. CONTRACTS: Real Estate: Payment of Special Taxes. The plaintiff entered into a written contract on August 31, 1911, to buy some property from the defendant, and he now sues after the completion of the deal to recover $133.30, the first installment of a special tax bill, which was issued three days before the date of the contract, but which first installment was not payable until June 30, 1912. The contract provided that the seller should pay all taxes, except all taxes not now due and payable. Held, that the tax bill could not be classed with the obligations the contract imposed on the principal defendant.</p> <p>2. DEFINITIONS: Due. The word “due” is used to express the mere state of indebtedness and then is an equivalent to owed or owing; and it is sometimes used to express the fact that the debt had become payable.</p> <p>3. -—-■■: Payable. The word “payable” when used in business transactions means that which is to be paid rather than that which may be paid.</p>

<p>1. NEGLIGENCE: Master and Servant: Scope of Employment. A chauffeur in the employ of the owner of an automobile who was going away for a few weeks took him to the railway station when the owner directed him to take two' friends 'to their places of business and then to go home and put away the machine. He had before directed him to overhaul the machine during his absence and to consult a certain expert in doing it. The chauffeur dropped the friends as ordered. He then waited at the owner’s place of business for near three hours for his pay check and then started for a public garage where the expert was, going by a saloon where he got a drink of liquor. After conferring with the expert and getting another drink, he went to his own home near-by, for supper. After supper he went back to the garage, picked up the expert and took him home, getting another drink on the way. After he put down the expert he proceeded towards the owner’s home for the purpose of putting up the machine, but when he got nearly there he discovered he had lost his keys to the garage. He thereupon turned to go back to the public garage where he had consulted with the expert and on the way negligently ran down a pedestrian in the street. Held, that the owner was liable for the injury.</p> <p>2. -: -: Unusual Direction: Servant’s Purpose. Though a servant delays in the execution of his master’s orders, or attempts to execute it by going in an unusual direction, for a purpose of his own, or violates the master’s orders, yet if in pursuit of the business, he was ordered to perform, he commits an injury through negligence, the master is liable. [Cases distinguished.]</p> <p>3. -: Chauffeur's Duty: Lost Keys to Garage. If in executing the master’s business by taking his automobile to the garage of the master the chauffeur discovers he has lost the keys to the garage, he is still in the master’s business and in the scope of his employment in turning back to recover the keys.</p> <p>4. -: -: Frolic: Liability. If a chauffeur, without the owner’s knowledge or consent, takes an automobile on a jaunt or frolic of his own, he is not in the owner’.s service and the latter is not liable for his negligence.</p> <p>5. EVIDENCE: Number of Car: Registration. Evidence of the number of an automobile and the registration of that number at the license office showing it to belong to a certain named person, is a prima-fácie showing of the ownership of the machine.</p> <p>6. -: Second Collision. If a chauffeur starts with the master’s machine in service of the master, and negligently runs down a pedestrian and then, to escape arrest or recognition, speeds away, and at a distance of a mile or more negligently collides with another machine, he is not serving the master at the time of the second collision and the master is not liable for it.</p> <p>7. EVIDENCE: Hearsay. Evidence of what a chauffeur said during the course of the afternoon, in running the owner’s automobile as to his using it .for his own purpose and not his master’s, is hearsay and is not admissible.</p> <p>8. --: Presumptions: Evidence of Fact: Error. Where in the trial of a case evidence of the scope of the servant’s employment is heard, it is error to instruct the jury as to presumptions in favor of the plaintiff that the servant was acting within the scope of his employment. If there is evidence of the fact, there is no room for presumptions.</p>

—Hon. D. H. Harris, Judge. (1) Tie shipment of mules involved in this suit was from the National Stockyards, Illinois, to Mc-Credie, Missouri, an interstate shipment, and is therefore governed by the laws of the United States and not by any law of the State of Missouri. Joseph v. Railroad, 157 S. W. 837; Railroad v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed.; Railroad v. Latta, 226 U. S. 519, 33 Sup. Ct. 155, 57 L. Ed.; Railroad v. Carl, 227 U. S. 639, 33 Sup.

<p>Appeal from Boone Circuit Court.—TTnn. D. H. Harris,. -Tudge.</p>

—Hon. James E. Goodrich, Judge. (1) Tke plaintiff’s right to recover, being necessarily based on the Federal Employers’ Liability Act, the petition fails to state a canse of action, and plaintiff is not entitled to recover on tbe whole record. Defendant was engaged in interstate commerce and plaintiff’s hnsband was employed in snch commerce. Hanley v. Railroad, 187 U. S. 617.

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

<p>CONTRACTS: Construction. The plaintiff owned a store building and leased it to tbe defendant for five years, beginning January 1, 1902, and ending January 1, 1907. On April 21, 1906, a fire destroyed tbe building and plaintiff agreed to release the defendant from liability on the lease) if he would construct a building during the year 1906 and give him half of the rent in excess of $220 per month. The defendant erected a building and leased it to a third party for a term of five years after the building was completed at $312.50 per month. The defendant failed to pay the rent for February, 1907. Held, that the plaintiff was entitled to rent for January under the contract.</p>

<p>Appeal from Jackson Circuit Court.—Eon. Joseph A. Guthrie, Judge.</p>

<p>Appeal from Jackson Circuit Court.—Bon. Kimbrough Stone, Judge.</p>

<p>APPELLATE PRACTICE: New Trial: Record Proper: Bill of Exceptions. Matters of exception must be in the bill of exceptions, filed in the trial court, and the abstract of the bill should show that such matters of exception are in the bill. Therefore, where one files an abstract which fails completely to separate the record proper from matters of exception and so confuses them that it is impossible to tell where the bill of exceptions begins or ends, the case must be considered as if no bill of exceptions had been filed. And where the error claimed is a matter of exception and is not shown to have been properly preserved the judgment will be affirmed.</p>

—Hon. J. C. Sheppard, Judge. The trial court erred in refusing to direct a verdict for the defendant at the close of all of the evidence because the undisputed testimony shows conclusively that plaintiff’s action was and is barred by limitation.

—Hon. David E. Blair, Judge. (1) Certiorari will lie to review the action of the county courts in all cases or proceedings in which an appeal or writ of error will not lie, and in which the court has proceeded without jurisdiction, or has exceeded its jurisdiction. State ex rel. v. Shelton, 154 Mo. 693; State ex rel. v. Lichta, 130 Mo. App. 284; State ex rel. v. Dykeman, 154 Mo. App. 416; 4 Ency. PI. & Pr. 10, 94.

<p>1. PLEADING: No Reply Filed: Judgment Cannot be Demanded Because of Default After Trial. In an action for alleged conversion, no reply was filed and defendant went to trial without objection or moving for judgment on the pleadings for want of reply. It was too late after trial for defendant to take advantage of this default to the extent of demanding judgment on tbe ground that the affirmative defenses set up in the answer stood confessed.</p> <p>2. -:--: Status on Appeal. No reply having been filed defendant went to trial without objection or moving for judgment on the pleadings for want of reply. The case is tried on appeal as if a reply had been filed, putting in issue the affirmative defenses contained in the answer, but the failure to reply does not raise any new and affirmative defenses to those alleged in the answer.</p> <p>S. -: Reply: Affirmative Defenses: Must be Specially Set up. In an action for alleged conversion, the defense being that the property was taken under a chattel mortgage, where plaintiff relies on a payment of the secured debt, fraud, mistake in the execution of the mortgage or its alteration after execution, he must affirmatively so plead, anticipating the defense, or embody the same in a reply.</p> <p>■4. WRITTEN CONTRACTS: Consideration: Statement as to: Not to be Varied. Where a statement in a written contract relative to the consideration shows upon its face that the consideration is a part of the terms of the contract itself, such statement stands as any other part of the written contract and cannot be contradicted, added to or taken from by parol evidence. A mere recital of a consideration, however, is generally open to explanation.</p> <p>5. CHATTEL MORTGAGES: Parol Evidence to Vary: Not Permissible. There being no issue of fraud, accident or mistake, it was error to admit parol evidence to show that some of the notes described in a chattel mortgage and secured thereby were paid before the mortgage was executed.</p> <p>6. INSTRUCTIONS: Chattel Mortgages: Parol Evidence not to Vary. In an action for conversion, the defense being that the property was taken under a chattel mortgage, an instruction virtually permitting the jury to supplant the chattel mortgage by mere oral testimony was erroneous.</p> <p>7. VERDICT: Against Instructions of the Court: Canntot Stand. A verdict, manifestly against the law as declared by the court, will not be allowed to stand.</p> <p>8. APPELLATE PRACTICE: Trial Court Theory: Followed on) Appeal. Though appellate courts are prone to hold the parties to the same theory on which they tried the case below and to broaden the pleadings to cover the issues which the parties without objection allowed to be tried there, yet where a suit was tried as a suit at law, the appellate court is not authorized to treat it as tendering an equitable defense, where the trial court did not so treat it, though there is evidence that such defense might be justified.</p>

—Now. G. E. Skinker, Judge. (1) Unless five townships in Webster county which were joined by Pleasant Valley and Gasconade in Wright county had previously adopted the law restraining the same animals sought to be restrained in this election and this election and a proper petition had been presented to the county court, that court had no jurisdiction to call an election at all.

<p>1. VENDOR AND VENDEE: Warranty: Contract of Parties. A general warranty by tbe vendor as to soundness does not cover patent defects nor those known to the buyer. But in a sale or trade, as in construing all contracts, the object is to discover the real intent of the parties.</p> <p>2. EXCHANGING PERSONAL PROPERTY: Contract: Defects Bargained Against. Suit in replevin for the return of a horse traded by plaintiff to defendant. Evidence examined and reviewed and held to show an agreement on the part of the defendant to take back his horse if he possessed any other defects than certain ones noticed at the time of the trade.</p> <p>3. -: Warranty as to Condition. Plaintiff and defendant traded horses. . Defendant’s horse had certain blemishes, one of which did not disclose its full effects. Evidence examined and held to prove that defendant specially warranted as against „ any defects resulting therefrom.</p>

.—lion. D. E. Blair, Judge. (1) The petition does not state facts sufficient to constitute a cause of action, and is. not sufficient to support the verdict and judgment herein. Yogue v. Railroad, 112 S. W. 985. (2) In an action for negligence, plaintiff must show not only the negligence, but that defendant’s act caused the injury complained of. Harper v. Terminal Co., 187 Mo. 575; Deschner v. Railroad, 200 Mo. 310.

<p>1, DAMAGES: Railroads: Shipment of Oysters. The plaintiffs sued to recover damages to a shipment of oysters, which the defendants transported from Fort Worth, Texas, to Topeka, Kansas. The oysters were alleged to have spoiled, and to have been rendered totally unfit, and of no value, by coming in contact with the outer air while en route. Eeld, that plaintiff cannot recover, when his evidence goes no further than to show that his injury was the result of one of two or more equally reasonable causes, for one or more of which- the defendant would not be liable.</p> <p>2. -: -: -: Negligence. If the cause of action stands on the negligence of the carrier, and not on the common law liability of the carrier as an insurer, the burden of proof is upon the plaintiff from the beginning to the end of the case.</p> <p>3. -: -: -: -: In an action to recover from a common carrier damages to a shipment of oysters, the shipper must show, first, that the carrier knew, or should have known of the defect and failed to exercise proper care to discover it or to remedy it, and, second, that a negligent breach of such duty was the proximate cause of the loss.</p>

<p>Error to Livingston Circuit Court.—Hon. Arch B. Davis, Judge.</p>

<p>NEGLIGENCE: Street Railways: Natural Law: Unbelievable Statement. One standing on a street car step without support when the car is suddenly started forward with a quick jerk will be thrown backward with his feet in the direction the car is going; and his testimony that he was thrown to the street on both knees and elbow, with his head and body with the direction of the car and practically parallel with the track, is a statement contrary to natural law and should not be credited.</p>

<p>1. COMMON CARRIERS: Damages: Negligence: Injury to Sample Baggage. Under the common law merchandise samples, or sample baggage, was not baggage in the strict sense of the term, and a common carrier was not required to carry it as an incident to the transportation of a pasenger. And if it did carry it, it was not liable as an insurer for its loss. But Sec. 3236, R. S. 1909, requires the carrier to carry sample baggage and therefore makes that baggage which was not baggage before. Without regard to the question whether this section makes defendant liable as an insurer, it is liable for its negligence, and as there was evidence tending to show such negligence, the finding will be upheld.</p> <p>2. -: -: -: Limitation on Amount Recovered. Sec. 3239, R. S. 1909, limiting the amount of recovery does not apply to a case where the liability is caused by negligence. It has never been the policy of the law to limit liability for negligence.</p>

<p>NEGLIGENCE: Street Railways: Damages: Death by Wrongfuf Act: Jury Question. Deceased, a workman in a pit under a track in a car-barn where he had been engaged in putting shoe-brakes on a car standing over the pit, had finished his work, and ordered a fellow workman to move the car and grind the brakeshoes. This is done by running the car back and forth on the track with the brakes set. The car was moved east along the track and off the pit, and then backed west over the pit catching deceased, as he was emerging from the west end of the pit, and killing him. No one saw the killing. The negligence charged was the failure to warn deceased when the car was backed. Held, that the case must turn upon the question whether or not there was enough evidence shown from which the jury could legally and reasonably infer that the car was negligently backed over the pit without orders or warning, and that as there was such evidence the judgment in plaintiff’s favor must be affirmed.</p>

<p>1, NEGLIGENCE: Street Railways: Dismissal: Retraxit: Merits. Plaintiffs motion to dismiss her case and an order thereon dismissing it, there being no hearing of the merits and no judgment of retraxit, is not a renunciation of the cause of action by retraxit and the suit may be again instituted within the time limited by the statute.</p> <p>2., INSTRUCTION: Suddenly With Great Force: Jerk. Where a ptition alleges that the deceased was thrown from the car by a “jerk” and an instruction submitted “suddenly and with great force,” there is no practical difference and no reversible error was committed.</p>

—Hon. 0. A. Lucas, Judge. As between tbe drawer and tbe payee of a draft tbe law of tbe place of making tbe contract is tbe law that governs tbe liability of tbe drawer to tbe payee. And tbe place of performance, as between drawer and payee is tbe place where the drawer resides and issues the draft. Seabright v. Calbraith, 4 Dallas, 325; Du Costa v. Cole, Skinners Reports, 272; Aimsinck v. Rogers, 189 N. Y. 252; Tilden v. Blair, 88 U. S. 241; Am. & Eng. Ency.

—Hon. Thos. J. Seehorn, Judge. .(1) Where evidence is wholly irrelevant a general objection is sufficient; and a review of the same may be had in the appellate court. Beard v. Car Co., 63 Mo. App. 391-392; State v. Meyers, 99 Mo. 120; State v. Patrick, 107 Mo. 154; Coquard v. Pendergast, 35 Mo. App. 245-246.

<p>NEGLIGENCE: Dmages: Personal Injuries: Contributory Negligence: Jury Question. Defendant had dug an open sewer ditch along a street. At one point he had left a crossing or causeway of dirt by not digging out, but tunnelling under, the same. This causeway was seven feet wide, and the ends of the ditch on each side were not protected by barriers or lights as required by ordinance. The dirt from the ditch on each side was thrown back from the sides of the causeway, thereby giving it, in the night, the appearance of being wider than it was. Plaintiff had not seen the crossing before. Between 8:30 and 9 o’clock at night she started with a companion to walk across the causeway. She looked at the crossing and saw a smooth pathway and started to cross looking straight ahead, thinking she was in the middle, or near the middle of the causeway. She was, in fact however, near one side, and, stepping too near the edge, some of the dirt crumbled off and precipitated her into the dich. Held, that under the circumstances she could not be deemed guilty of contributory negligence as matter of law.</p>

—Hon. Daniel E. Bird, Judge. It was the duty of plaintiff to acquaint himself with the rules and regulations of defendant, and having failed to do so, the defendant is and was not liable. Claybrook v. Railroad, 19 Mo. App. 437; Logan v. Railroad, 77 Mo. 667 and cases cited; Dietrich v. Railroad, 71 Pa. St. 436; Railroad v. Harris, 81 Miss. 208 (95 and St. R. 466); Railroad v. Gants, 28 Kan. 608; Dwindle v. Railroad, 120 N. Y. 117, 17 Am.

<p>1. LIBEL AND SLANDER: Abandonment: Adultery. To say of a woman that, “This boy’s mother (meaning plaintiff) abandoned her child when he was four years old and went away with another man” is not slander per se. It does not so charge abandonment of a child as to constitute a crime; nor does it charge adultery or unehastity. But with proper extrinsic allegations, it may be shown to be a slander as applied to plaintiff.</p> <p>2. -: Evidence: Literal Proof: Substantial Words. The very words charged in slander must be proven, or enough of the substantial words in a charge in a petition to make out the offense must be literally proved.</p> <p>3. -¡’Substance: Substantially: Identically. The rule sometimes stated, that proof of the words of a charge in a petition for slander “in substance” or “substantially” will suffice, does not mean that you need not make proof of enough of the very words which make the offense charged, for that must be done. It means that if you prove identically enough of the substantial words which constitute the charge, it will suffice. Although the proof may embrace more words or less than are charged.</p> <p>4. INSTRUCTIONS. It is error to instruct the jury for plaintiff that proof of the words charged, or substantially those words, will suffice, for which the judgment should be reversed.</p> <p>ON MOTION FOR REHEARING.</p> <p>PRIVILEGE: Extraneous Matter: Slander. Voluntary explanation to a physician of the relation his informant bore to a patient and not necessary to his understanding so as to affect his attending the patient, is not privileged. It is extraneous matter, which, if slanderous will render the party liable.</p>

—Hon. 0. A. Lucas, Judge. Defendant, Jordan, acquired no interest whatever in the policy hy virtue of the assignment executed to him hy Tripp. (1) Because the assignment was procured by fraud and Tripp received nothing whatever for it. (2) Because it was void in law for the reason that Jordan had no insurable interest in the life of Tripp, and the assignment was not made to secure a debt due from Tripp to Jordan. It was therefore against public policy and wholly void.

<p>Appeal from Jackson Circuit Court.—lion. Kimbrough Stone, Judge.</p>

<p>Appeal from. Andrew Circuit Court.—Hon. A. D. Burns, Judge.</p>

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

<p>1. NEGLIGENCE: Damages: Personal Injuries: Crossing: Sufficiency of Evidence. Plaintiff, driving a lengthened, empty lumber wagon, approached a crossing with his team in a walk. An electric car was also approaching the crossing. Plaintiff knew the car was coming, but thought he had time to cross before it, and was looking in the other direction for a car on the parallel track. When the car was 200 feet from the crossing it was manifest to the motorman that plaintiff was going to cross and was oblivious to his danger as he was looking the other way. The car could have been stopped in 100 feet but no attempt, was made to stop, or even slacken it until the car struck the wagon just as the rear end of’ the wagon was about to clear the track. There being substantial evidence to support the foregoing facts, it was sufficient to take the case to the jury on the humanitarian rule.</p> <p>2. -: -: Humanitarian Rule: Contributory Negligence. If, after the motorman saw plaintiff was going into danger and was oblivious thereto, he had time, by the exercise of ordinary care and with due regard to the safety of his passengers, to have avoided the collision by stopping or slackening the speed of his car, and he negligently failed to do so, his master will be liable under the humanitarian rule notwithstanding plaintiff was guilty of contributory negligence in going into danger.</p> <p>3. -: -: -: -. The fact that plaintiff in his mind knew a car was coming but erroneously thought he could cross would not absolve defendant from liability under the humanitarian doctrine, if the motorman could see by plaintiff’s actions that he was going to cross and was oblivious to his danger, and there was then still time to stop or slacken the car by the exercise of ordinary care. The plaintiff’s knowledge that a car was approaching would not prevent him from being oblivious to has danger if he erroneously thought he could cross, and was manifesting to the motorman that he was going to cross and was not aware of the danger.</p> <p>4. PLEADING: Proof Damages Confined Within Scope of Those Pleaded. All injuries which naturally result from the main or specific injury alleged may be shown without being specifically pleaded provided it is a natural consequence, one that is usual and can reasonably be expected to follow from the injuries alleged, though not a necesary or inevitable consequence.</p> <p>6. -: -: Proof of Future Brain Trouble Admissible Under Allegation of Permanent Injuries to Head, Mind and Nervous System. Where the petition alleged permanent injuries to the head, mind and nervous system, evidence of future brain trouble was admissible as against the objection that it was not within the scope of the pleadings.</p>

<p>Appeal from Jackson Circuit Court.—Hon. B. B. Middlebrook, Judge.</p>

<p>1. SALES: Contracts: Statute of Frauds. Where one had a contract with a city to furnish plumbing supplies for the repair of the city’s water plant, and was engaged in shipping said supplies, a portion of which was lost in transit, the oral agreement made by a clerk of the carrier that plaintiff should replace the lost articles and the carrier would pay for them was not a purchase and sale of the goods, but was a method of settlement of the claim for the lost goods.</p> <p>2. -: -: -: In such case, no matter what form the suit against the clerk may take, it in reality is a suit for the goods lost in transit, and the clerk cannot be held liable since it is for the debt, default or miscarriage of another, and under the statute must be in writing.</p>

—Hon. Jos. A. Guthrie, Judge. An ordinance may be repealed by implication. 26 Am. & Eng. Enc. Law, 720; Grimes v. Reynolds, 94 Mo. App. 576, 584; 184 Mo. 679, 688. If the power of removal was in the mayor and not in the board, the approval of the board’s act by the mayor ratified the order of removal. 20 Am. & Eng. Enc. Law (2 Ed.) 1180, 1182; Hill v. Indianapolis, 92 Fed. 467; Edwards v. Kirkwood, 147 Mo. App. 599, 616; O’Dell v. Scranton, 126 Mo. App. 19, 34, 35.

—Hon. Francis H. Trimble, Judge. To constitute a valid gift inter vivos there must be an intention to give and a delivery to the donee, or to some one for him, of the thing given. Tolmes v. Baker,. 156 Mo. App. 405; Estate v. Soulard, 141 Mo. 656-7; Foley v. Harrison, 233 Mo. 517. The gift may be made to a third person for the donee, and if beneficial to Mm, acceptance will be presumed. Dole v. Lincoln, 31 Me. 422; Devoe v. Dye. 123 Ind. 321; Darland v. Taylor, 52 la. 503.

<p>Appeal from. Jackson Circuit Court.—Hon. Thos. J. Seehorn, Judge. .</p> <p>(1) The contract sued on is not against public policy. Royle Mining Co. v. Fidelity & Casualty Co., 126 Mo. App. 104, 115; London G-. & A. Co. v. Morris, 156 HI. App. 533; Breeden v. Insurance Co., 220 Mo. 327, 523. (2) The injured employee, Milo Collins, was not a child at the date of his injury and therefore appellee is liable. London G-. & A. Co. v. Morris, 156 111. App. 533.</p>

—Hon. D. H. Harris, Judge. (1) Plaintiffs cannot recover damages due to the unpleaded act of renting the building. They plead that the damage was due to the alleged slanderous conversation which took place after the building had been rented, and must stand or fall on this allegation. Rhodes v. Bugg, 148 Mo. 714. (2) It is not essential to the validity of the defense of advice of counsel that immaterial facts should have been communicated. 19 Am. Eng.

<p>Error to Buchanan Circuit Court.—Hon. Wm. D. Rusk, Judge.</p>

<p>COURTS: Real Estate: Title to Involved: Supreme Court Hais Jurisdiction in Appeal. An action in the nature of a suit to redeem title to real estate and to have the title thereto divested out of defendant and vested in plaintiff, involves title to real estate and hence only the Supreme Court has jurisdiction of the appeal.</p>

—Hon. Arch A. Johnson, Judge. In the case at bar the proceedings in the circuit court from the filing of the petition to the default, inquest and final judgment thereon appear to have been entirely regular and in conformity to law, and the defendant has not, as a matter of law and strict right, any ground on which to claim that the judgment on the default be set aside. Robyn v. The Chronicle Pub. Co., 127 Mo. 385, 390; Johnson v. Godlove, 71 Mo. 400.

—Ho». Guy D. Kirby, Judge. (1) Whether the fee or only an easement be vested in the city, under the general power to control and regulate streets and sidewalks, the municipality has control over shade trees on the sidewalk, even though they were owned by the abutting proprietor. The city may even remove them entirely if they obstruct travel and a fortiori for a conceded public use they may authorize the trimming.

—Hon. John T. Moore, Judge. (1) Summons being issued November 4, 1912, and served November 9, 1912, and tbe answer being filed February 28, 1913, nearly four months later, the allegation in the answer of defendant that “he has resided in this State one whole year next before the filing of this answer and cross bill” fails to meet the statutory requirement, of residence in the State one whole year next before the filing of the petition.

<p>Appeal from G-reene County Circuit Court.—Hon. Guy D. Kirby, Judge.</p>

—Ron. Alfred Page, Judge. (1) Mrs. Steffy was incompetent as a witness and was not rendered competent by tbe alleged renunciation. R. S. 1909, secs. 570-577; Miltenberger v. Miltenberger, 78 Mo. 27; Hogan v. Hincbey, 195 Mo. 527-534. (2) Yerbal testimony introduced for tbe purpose of aiding in tbe interpretation of tbe alleged will, and especially in contradiction of its terms, was wholly in admissable.

—Hon. John T. White, Special Judge. (1) It is the general rule that a question arising on a former appeal will be deemed res adjudicata only when it must have been fairly presented to the court as necessary to a decision of the case and directly considered and decided. Abies V. Ackley, 133 Mo. App. 594,113 S. W. 698; Railroad v. Swan, 120 Mo. 36-7; Anderson Carriage Co. v. Gilmore, 129 Mo. App. 647, 108 S. W. 594; Gwin v. Waggoner, 116 Mo. 1. c. 152.

—Hon. Frank Kelly, Judge. (1) The filing of a paper is the actual delivery of the paper to the clerk without regard to any action that he may take thereon, and does not consist of the marking put on it by the clerk, but in placing it as a permanent record in the office, or case, where it belongs. Indeed the endorsement of the fact of'filing is only evidence that such filing has been made; and but only evidence thereof. Lent v. Co., 130 N. Y. 504; Jones v. Wells, 3 Tex.

<p>Appeal from St. Louis City Circuit Court.—lion. Robert M. Foster, Judge.</p>

<p>APPEALLÁTE PRACTICE: Conflicting Decisions: Motion to Transfer to Supreme Court. Under Sec. 6 of tlie Amendment of 1884 to Art. 6 of the Constitution, no power is granted to a litigant or his counsel to have a case pending in a Court of Appeals certified, to the Supreme Court, or to ash that it he done, on the ground that the decision rendered in such case is in conflict with a previous decision of one of the other Courts of Appeals or the Supreme Court; and hence a motion to certify or transfer a case to the Supreme Court on such ground will he stricken from the docket.</p>

<p>Appeal from St. Louis Court of Criminal Correction. —Hon. Galvin N. Miller, Judge.</p>

—Hon. James D. Barnett, Judge. (1) The court erred in not ordering the removal of defendant from the curatorship of the estate. Mismanagement of the estate of the father of which defendant was administrator can be shown in connection with similar mismanagement of the estate of the child of which he is curator. In re Wood, 71 Mo. 623. (2) Probate courts are of statutory creation and administrators and curators have no powers except those conferred by statute.

Louis City Circuit Court.—Hon. Leo 8. Bassieur, Judge. . (1) The original petition was filed by one of the beneficiaries of a bond, to the use and at the relation of another beneficiary whose rights were co-ordinate and wholly independent of the first, and the obligee (trustee) was not made a party.

<p>1. CONTRACTS: Construction. A contract is to he construed from a consideration of all of its provisions.-</p> <p>2. REAL ESTATE BROKERS: Right to Commission: Contract-Construed. A contract appointing a real estate broker exclusive agent to sell real estate provided that, in consideration of the broker’s efforts to sell the property, the owner, upon making a sale or exchange thereof, would pay the broker a specified amount as comniission, and that if no sale was made, . he was to be at no expense whatever. Held, that notwithstanding the broker was not authorized to offer the property for exchange, he was entitled to the stipulated amount, upon an exchange of the real estate being made by the owner while the contract was in force; the provision that the owner should not be liable if no sale was made referring only to liability for advertising or other expense incurred in attempting to effect the sale.</p> <p>3. -: Duration of Contract. Where a contract authorizing a real -estate broker to sell real estate does not make provision for the time the agency is to continue, it continues in force for a reasonable time only.</p> <p>4. -: Right to Commission: Revocation of Authority. A contract appointing' a real estate broker exclusive agent to sell real estate, and specifying no definite time during which the agency was to continue, provided that it might be terminated at any time on thirty days’ notice in writing. The agent spent time and money endeavoring to sell the property, and about .four months after the contract was made, the owner notified the agent in writing- that he had canceled the contract. Held, that the contract could not be terminated without giving the required thirty days’ notice, at least until after the expiration of a reasonable time for securing a purchaser by the broker, and a reasonable time had not elapsed, and hence the broker was entitled to a commission, in accordance with the provisions of the contract, on an exchange of the property, made by the owner within thirty days after such notice of revocation was served.</p> <p>5. -: ———: Measure of Damages. Where a contract appointing a real estate broker exclusive agent to sell real estate provided that, in consideration of the broker’s efforts to sell the property, the owner, upon making any sale or exchange thereof, would pay the broker a specified amount as commission, the broker was entitled, upon the owner making an exchange of the property, to receive the stipulated amount, and was not confined to the actual damages he may have sustained, as for a breach of contract, in undertaking to perform the contract.</p>

Louis City Circuit Court.—Eon. J. Eugo Grimm, Judge. (1) The court erred in refusing the following instruction requested by defendant: “The court instructs the jury that if you find and believe from the evidence that plaintiff attempted to board a car while said car was in motion, then she cannot recover and your verdict must be for defendant.” Bond v. Railroad, 110 Mo. App. 131; Peck v. Transit Company, 178 Mo. 617; Hecker v. Railroad, 110 Mo. App. 166.

Louis City’Circuit Court.—Ron. Rugo Muench, Judge. (1) The ordinance read in evidence was inoperative and void as to trains used exclusively for the carrying of the United States mails, and plaintiff’s instructions based on said ordinance were therefore erroneous. Railroad v. Ulinois, 163 U. S. 154; State v. Railroad, 212 Mo. 681. (2) The court erred in refusing to give defendant’s instruction No. five on the measure of damages.

—Hon. James D. Barnett, Judge. (1) The making of payment on a note under an agreement that the balance shall be extended until convenient for the debtor to pay it extends the time of such payment to a period as under the circumstances shall be reasonable. Newell v. Finch, 25 Barb 175. As between the parties an extension of time is valid if there is any consideration at all and some authorities require no consideration. Brown v. Cary, 74-App. Div. 466; 2 Kent Com.

Louis City Circuit Court.—Hon. W. B. Homer, Judge. (1) The plaintiff states no cause of action in her petition, (a) She relies solely on the restrictions contained in the deed from West End Realty Company to November Investment Company of July 25, 1907.

Louis City Circuit Court.—Hon. James L. Withrow, Judge. (1) The statute makes it the duty of the contractor or the subcontractor to file with the clerk or the circuit court within the designated time “a just and true account of the demand due him or them, after all just credits have been given, which is to be a lien upon the building,” etc. Revised Statutes of Missouri 1909, section 8217. There must be an'account which answers to the ordinary signification of the term.

Louis City Circuit Court.—Hon. James E. Withrow, Judge. (1) The claims of the widow for absolute allowance and for allowance in lieu of provisions are demands against an estate, not distributive shares. They take property out of the estate to make it the property of the widow.

Louis City Circuit Court.—Ron. Daniel D. Fisher, Judge. The court erred in the instruction requested by ■plaintiff in allowing an unlimited recovery for future ’loss of earnings. Radtke v. Basket & Box Co., 229 Mo. 1; Smoot v. Kansas City, 194 Mo. 522; Heinz v. Railroad, 143 Mo. App. 38.

Louis City Circuit Court.—Hon. Hugo Muench, Judge. (1) It is entirely competent for tlie bondholders to agree among themselves upon what conditions any individual bondholder may exercise his right of action, and a provision in a mortgage that no proceeding at law or in equity shall be taken by any bondholder until, after the refusal of the trustee to comply with the demand of a certain percentage of the bonds for the trustee to bring action upon the bonds or mortgage is…

Louis City Circuit Court.—Hon. Eugene McQuillin, Judge. (1) The wrongful act of an agent in obtaining possession of a shipment without surrendering the bill of la,ding may be ratified by the principal, expressly or impliedly, and the objection to the amount of freight paid, together with the retention of the receipted freight bills, and the correction of a credit memo by the principal upon receiving said items in the settlement and statement of his broker or agent,…

Louis Circuit Court.—Hon. William M. Kinsey, Judge. Plaintiff’s instruction No. 1 is erroneous.

Louis City Circuit Court—Now. George N. Williams, Judge. (1) The court erred in refusing to permit the introduction in evidence of “plaintiff’s ‘exhibit D’,’’ the decree of the Colorado Court ascertaining pro rata amount due by each stockholder, because (a) The cause of action arose in Colorado and is governed by the limitation Statutes of that State.

Louis City Circuit Court.—Eon. Charles Claflin Allen, Judge. (1) A judgment by default, rendered while an attorney is temporarily from the court room on account of sickness, should be set aside on application. Stout v. Lewis, 11 Mo. 438 ; Hall v. McConey, 152 Mo. App. 1; Tucker v. Insurance Company, 63 Mo. 593; Judah v. Hogan, 67 Mo. 252; Currey v. Zinc, Lead & Smelting Co., 157 Mo. App. 423; Parks v. Coyne, 156 Mo. App. 379.

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. . . It is reversible error for tbe trial judge to refuse tbe attorney of a litigant permission to see instructions before they have been given. Harding v. Railroad, 232 Mo. 444. A general exception to the instructions of the adverse party is all that is necessary to permit of their review by the appellate court. Harding v. Railroad, 232 Mo. 457.

Louis City Circuit Court.—Hon. James E. Withrow, Judge. The petition in this cause is fatally defective, and! does not state a cause of action, as against Friedman, for it in no place alleges that at the time of the alleged conversion “plaintiff was entitled to the possession”' or “had the right of possession of the particular .goods” described or attempted to be described in tbe petition; and the refused demurrer offered by defendants at termination of plaintiff’s ease,…

<p>Prohibition. Original Proceeding.</p>

Louis City Circuit Court.—Hon. W. B. Homer, Judge. (1) Proofs of death furnished to the insurance company are prima facie evidence of the facts therein stated, and are conclusive, unless the beneficiary shows that the statements made therein were erroneous, or were given through mistake. Almond v. Modem Woodmen of America, 133 Mo. App. 382; Mutual Benefit Life Ins. Co. v. Newton, 22 Wall 32; Hassencamp v. Life Ins.

Louis City Circuit Court.—How. Jas. E. Withrow, Judge. A carrier does not misdeliver when delivery is made in good faith with due care to one held ont by the person entitled to delivery as his driver to receive from the carrier, (a) Where the fault or mistake of the person entitled to delivery is the cause of the failure to deliver the carrier is excused unless guilty of negligence.

Louis City Circuit Court.—Ron. J. Hugo Grimm, Judge. (1) The amount sought to be recovered in this action, as appears upon the face of plaintiff’s amended petition, being the sum of $519.75, and not within the jurisdiction of the justice of the peace court of the city of St. Louis, where this action originated, the defect could not bo cured by the amendment permitted and made in the circuit court where the cause was pending on appeal so as to bring the subject-matter of the…

Louis City Circuit Court.—Hon. J., Hugo Grimm, Judge. (1) The court erred in admitting over objection of the appellant testimony of witness, Ben Meyers, as to what would be the cost of rebuilding a new wall on the north of respondent’s two-story building, said wall to be rebuilt thirteen inches thick and of new brick whereas the old wall was only nine inches thick and of handmade brick. (2) The court erred in giving, of its own motion, instruction No. 1.

Louis City Circuit Court.—Eon. George E. Shields, Judge. The statutory action for damages for death caused by wrongful act does not lie against the principal and sureties on a constable’s bond, (a) The Death Damage Act (Sees. 5425-26) does not create any new cause of action. It transmits the right to sue, which the deceased would have had he lived.- Strode v. Transit Co., 197 Mo. 616. (b) If the deceased would have had no claim nothing is transmitted.

Louis City Circuit Court .—Eon. William M. Kinsey, Judge. (1) (a) The agreement of November 2, 1907, Exhibit A, was an option agreement and having expired on December 10', 1907, any extension thereof must have a new consideration to> support it. The evidence discloses none. 21 Am. & Eng. Ency. of Law, 926; Ide v. Leisler, 10 Mont. 5; 24 Am. St. Rep., 17; Clamo v. Grayson, 30 Oregon 11.