Volume 178 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. J. . Hugo Grimm, Judge. Cause certieied to Supreme Court. Tire erection of an apartment, consisting of six separate family dwellings is violative of a restriction that not more than one dwelling shall he erected on a specified tract. Sanders v. Dixon, 114 Mo. App. 239; Thompson v. Langan, 154 S. W. 808. (1) The law favors the free and untrammeled use of real property.

<p>1. JUDGES': Disqualification: Disbarment of Attorney. The fact that the judges of the Court of Appeals were honorary members of a bar association which instituted a disbarment proceeding against an attorney in that court would not disqualify them from hearing the case, where, under the by-laws of the association, they were not liable either for dues or assessments.</p> <p>2. ATTORNEY AND CLIENT: Disbarment of Attorney: Jurisdiction of Courts of Appeals. The Courts of Appeals have jurisdiction of an original proceeding to disbar an attorney, under Sec. 951, R. S. 1909, for “any felony or infamous crime or improperly retaining his client’s money or any malpractice, deceit or misdemeanor in his professional capacity;” following State ex rel. Selleck v. Reynolds et al., Judges, 252 Mo. 369.</p> <p>3. APPELLATE PRACTICE: Supreme Court: Controlling Decisions. The dicisions of the Supreme Court must be accepted as conclusive by the Courts of Appeals, regardless of the views of the latter courts as to the correctness of such decisions.</p> <p>4. ATTORNEY AND CLIENT: Disbarment of Attorney: Improper Retention of Client’s Money: Embezzlement: Jurisdiction of Courts of Appeals. To constitute embezzlement there must be a felonious intent, at the time of the unlawful conversion, to appropriate the money or property to the use of the person appropriating it, with a fraudulent intent to deprive the owner of it; and hence an attorney who improperly retained money collected by him frbm a client, but who had no fraudulent intent to appropriate it to his own use, was not guilty of embezzlement, under Sec. 4553, R. S. 1909, but was merely guilty of improperly retaining his client’s money and of deceit in his professional capacity, so that the Court of Appeals had jurisdiction of an original proceeding to disbar him on account of such improper retention, notwithstanding he had never been tried for nor convicted ■ of an offense in connection with such retention.</p> <p>APPELLATE PRACTICE: Persuasiveness of Findings of Commissioners. In view of the fact that commissioners appointed by the Court of Appeals had the witnesses before them and could, therefore, better determine the force and weight of the ■ testimony than thq court could on the record held, that the court will accept the conclusions of the commissioners on the evidence.</p> <p>6. ATTORNEY AND CLIENT: Disbarment of Attorney: Improper Retention of Client’s Money: Punishment. In an original proceeding instituted in the Court of Appeals to disbar an attorney for deceit in his professional capacity, and for improperly retaining money collected by him for his clients, but without any intent to convert the same to his own use, held, on the attorney being found guilty, that he should be suspended from practice as an attorney for a period of one year.</p>

— Division No. One. — Eon. J. D. Perkins, Judge. Where a negotiable instrument complete in form and duly signed and stolen from some place where the-maker has left it and it passes by the thief to a bona fide, innocent holder, the latter can recover from the maker qn the theory that where one of two innocent parties must suffer it is the one whose acts furnish the-means by which the injury is accomplished. 1 Daniel' on Neg. Ins.

Division No. Two. — Hon D. E. Blair, Judge. (1) It was incumbent upon the respondent as tlie plaintiff, in order to hold the purchase, to not only plead, but show the fulfillment of the conditions; the acceptance of the engine one of the necessary conditions to recovery is neither pleaded nor shown, but, on the contrary, the fact that the appellants refused to accept said engine is an admitted fact throughout the record. Nichols-Shepard Co. v. Rhoadman, 112 Mo.

Jasper County Circuit Court, Division No. One. — Hen. Joseph D. Perkins, Ju.lge. (1) Tliere was a total failure to sustain by the evidence the allegations of the plaintiff’s, petition and the demurrer to the evidence should have been sustained. The evidence must connect the causes of the injury with the negligence charged in the petition.

— Hon. L. B. Woodside, Judge. (1) Plaintiff having undertaken to set up a consideration for the check must do so by sufficient averments. Glasscock v. Glasscock, 66 Mo. 627. (2) The instructions completely ignore the defense of no consideration interposed by defendant. The judgment of the Bank of Lebanon against the Power Company concludes not only the question presented, but also the questions that might have been. Brown v. Woody, 22' Mo.

<p>1. APPELLATE PRACTICE: Verdict: Supported by Evidence: Conclusive. Appellate courts do not pass upon the weight of the evidence and a verdict which involves only an issue of fact with any substantial evidence to support it will stand, no error having been committed in the trial'.</p> <p>2. SALES: Evidence: Competency. In a suit for the reasonable value of certain building material, where plaintiff contended that the price claimed by defendant was much less than the reasonable value thereof, evidence is competent on the part of the defendant that the items sued on were a part of a larger bill on which plaintiff was making prices, as he might have been willing to make lower prices on these items in order to make a sale of the entire bill.</p> <p>3. .-: Evidence: What Competent. In an action for the reasonable value of certain building material where the dispute is as to price offered by plaintiff evidence was admissible that plaintiff had offered to another contractor practically the same' material for the same purpose at the same price.</p> <p>4. SALES: Contract Price: Statute of Frauds. Though a contract for the sale of certain building material may be within the statute of frauds before being executed, yet plaintiff after delivering the material, cannot disregard the contract price and sue for an increased amount as a reasonable value.</p>

— Sow. Guy D. Kirby, Judge. (1) The instant a passenger becomes detached from the street car and alights on the street, all connection with the carrier is severed and all liability of the carrier so far as regards this, person as a former passenger is determined. Hendrick v. Eailroad, 136 Mo. 548; Nellis on Street Surface Eailroads, page 449; Cramer v. Eailroad, 156 Mass. 320, L. E. A. 490 ; 31 N. E. Eep. 391; 42 Am. & Eng.

— Now. Carr McNatt, Judge. 1. Where a business, man possessed of ability and opportunity to know what he was signing, takes the word of an utter stranger as to the contents of the instrument without reading or having it read, and signs the same, he is careless, and the court cannot be his guardian though the other party may be guilty of fraud. Breeder’s Co. v. Wright, 134 Mo. App. 717; Horne Ins. Co. v. Winn, 125 Mo. App. 384; Breeder’s Co. v. Weight, 139 Mo.

— Hon. L. B. Woodside, Judge. (1) The question involved in this case is governed by the law announced in the case of Christensen v. New York Life Insurance Company, 160 Mo. App. 486. (2) The facts in this case are even stronger than those in the Christensen case, for here the amount of the loan equaled, if not exceeded, the net value or reserve of the policy.

Wilson A. Taylor, Special Judge. (1) If there are no creditors there can be no fraudulent conveyance to defeat the rights of creditors. Respondent’s evidence most emphatically shows that they were only sureties, and a surety is not a creditor until he pays the debt or discharges the liability or is damnified. Hearne et al. v. Keath et al., 63 Mo. 84; Bauer v. Gray, 18 Mo. App. 170; McCormick v. Obanion, 168 Mo. App. 607; Huse v. Ames,'104 Mo. 91.

<p>1. NEGLIGENCE: Death by Wrongful Act: Street Railways: Explosion. The plaintiff who is the widow of J. L. Agnew, deceased, sued to recover for the negligent death of her husband by the defendant street railway company. The plaintiff’s husband, while a passenger on one of defendant’s street cars, was standing on the rear platform, when an explosion of the controller caused a' panic of passengers and he was knocked to-the street by the stampede and killed. H-eld, that plaintiff to recover must show, first, that the peril or alarm must have-been caused by the negligence of the one against whom indemnity is sought; second, the apprehension of peril, from the standpoint of the injured person, must have been reasonable; and, third, the appearance of danger must have been imminent, leaving no time for deliberation. On the other hand the danger must be adjudged by the circumstances as-.they appear, and not by the result.</p> <p>2. -: -: -: Ownership. Where the ownership of a street railway is not combated, except by a general denial, slight evidence tending to support the inference that the defendant owns or operates the road will be sufficient.</p> <p>3. -: -: - — : Common Carrier. A common carrier is charged with the duty of exercising the highest degree of care for the safety of its passengers, and it will, be held liable to respond in damages if the death of a passenger is due to the slightest negligence in the performance of such high duty.</p> <p>4. EVIDENCE: Prima Facie: Burden of Proof. When an explosion of a controller occurs on a street railway car, it is primafacie evidence that it has a negligent origin, and the burden is on the defendant to prove by evidence that the explosion was not caused by any.breach of duty on its part but by an unavoidable accident.</p>

<p>1. ATTORNEY’S LIEN: Who Entitled Thereto: Remedial Statute. By the terms of the statute every attorney who appears has a lien upon the cause of action which attaches to the judgment and the proceeds thereof into whosesoever hands they may come. An attorney, either at the beginning or during the progress of the case, is within the purpose and, protection of the statute. The lien is on the cause of action from the commencement thereof and the statute is remedial and should be liberally construed.</p> <p>2. -: No Notice Necessary When. When the attorney’s name is to the petition no other formal notice of a lien is necessary after suit is filed and summons served.</p> <p>3. -: Services Terminated by Death. An attorney who performs services is entitled to compensation for the services he actually rendered even though they were prematurely terminated by his death.</p> <p>4. -: -: When Lien is not Defeated by Payment to Co-Attorney. Payment of the judgment to such deceased’s co-counsel will not satisfy the lien since such co-counsel was not deceased’s agent, and, if he had been, such agency was terminated by the death of the principal.</p> <p>5. -: Remedies Open to Attorney. Three remedies are open to an attorney to protect and enforce his lien. 1. He may proceed against his client. 2. He may proceed against the defendant either by motion in the original case or in an independent proceeding. 3. He may proceed against the judgment itself. He has either of the first two without regard to whether the case is settled before or after judgment and all three without regard to whether the client is solvent or insolvent.</p> <p>6. -■: P'ayment of Judgment. The statute creates a valid assignment of the judgment pro tamto; and any defendant knowingly paying a judgment without taking care of such lien will be liable to pay again to the extent of such lien.</p>

<p>FRATERNAL BENEFICIARY ASSOCIATIONS: Benefit Certificate: Agreement; Waiver: Notice. Where a local lodge of a fraternal society, under authority of its by-laws, contracted to pay the monthly dues of one of its members who held a benefit certificate of life insurance and did pay such dues through a part of three separate years and up to two months of his death, it waived its right to a forfeiture for nonpayment of those two months unless it notified the assured that it would no longer pay.</p>

<p>1. NEGLIGENCE: Street Railways: Passenger: Crowded Car: Running Board. If a street railway company so crowds its cars as to compel passengers, which it receives for carriage, to stand on the outside on a “running board,” it must keep its track in such even and smooth condition, or run the car in such careful manner as that it will not suddenly “lurch” or “dip” so as' to throw the passenger to the street. Evidence discussed and shown to make a case for the plaintiff.</p> <p>2. INSTRUCTIONS: Common Error. If points in instructions refused have already been given for the same party, then refusal is not error. So, if a party has committed in his instructions the same error he points out in his opponents, he should not complain.</p>

<p>1. DAMAGES: Warranties: Sale of Jack. The plaintiff sued to recover damages for a breach of warranty in the sale of a jack, which he purchased from the defendant, at an auction sale, with a guaranty that the jack was a good performer and a- sure breeder. SeZd, that any affirmation of fact and any promise by the seller relating to the goods is an express warranty, if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods relying thereon. Therefore, a breach of such warranty entitled the plaintiff to recover.</p> <p>2. INSTRUCTIONS: Representation: Warranty. An instruction which states, that “if the jury believe defendant at the time of the sale stated or represented the jack to be a good performer and a sure foal getter and that plaintiff relied upon said statement or representation, if any, in purchasing said jack, then in law it constituted a warranty,” is not erroneous where there is no dispute that the warranty was made, intended or understood, nor is it necessary that the instruction should include the care the jack received after the sale, because, that element was not in the nature of a condition precedent to plaintiff’s right to recover.</p> <p>3. -: -: -. An instruction was not improperly refused which told the jury that if they found that the only warranty defendant made was limited to sixty days, and that it was agreed that if the jack did not come up to the warranty he was to be returned within sixty days and was not so returned, the verdict must be for defendant, because a right of action for breach of warranty exists, notwithstanding the vendor expressly agreed to take back the animal if it failed to correspond to the warranty, nor is the retention a waiver of the warranty, but merely furnishes a cumulative remedy.</p>

<p>1. LIFE INSURANCE: Payment of Premiums: Evidence: Declarations of Agent. Plaintiff sued on a policy of insurance on the life of her husband. The defense was failure of insured to pay the last premium whereby the policy lapsed. Plaintiff claims that this premium was paid to an agent of the company. Held, that evidence of certain declarations of the agent as to such payment, not made as a part of the transaction, with deceased was inadmissible.</p> <p>,2. -: -: -. Declaration of an agent, to be admissible against the principal, must be made as a part of the very work he is transacting under authority of his principal. They are admissible not on the theory that they are admissions made by the principal through his agent, but on the theory that they are a part of 'the act done by the agent in behalf of his principal and explain or determine the quality of that act and are, therefore, as binding on the principal as the act itself. They are admissable because they are a part of the thing done and to which the declarations relate.</p> <p>3. -: --: —-: Same Transaction. Two Witnesses testified that about four o’clock in the afternoon they were present and heard the insured and defendant’s agent talking about the former’s insurance premium; that the agent told the insured that he had paid a premium then past due but that the next one would be due soon; that insured replied, “I know that. I have the money and will just pay it:” that thereupon the insured paid the agent a roll of bills which the agent put in his pocket, and the agent then wrote out what witnesses supposed ' was a receipt and handed to insured, remarking at the time, “This will carry your insurance now for over a year.” This was admissible since the act and the declaration accompanying it were parts of the very transaction in controversy. That night after supper the insured and the agent got out the policy and some discussion and explanation was made by the agent to the insured, and at the close of the discussion, the agent said to the insured, in the presence and hearing of tire plaintiff, “This pays your insurance all up, and you won’t have to bother with it any more for a long time.” Held, that there was room for the inference that the discussion was a resumption of the transaction had in the afternoon, that they were parts of the same transaction notwithstanding the interval of time between them, and that the declaration was admissible.</p>

<p>1. NEGLIGENCE: Railroads: Personal Representative: Widow. The plaintiff, a widow, sued the defendant for the negligent death of her husband. She sued, not in the capacity of a personal representative under the Federal Law, but as the widow under the statute of Kansas. After judgment in her favor, she entered her appearance as administratrix of her husband’s estate, and adopted all of her acts in the suit, as the widow. Her husband was a locomotive engineer, and while operating one of defendant’s engines, just as the train was entering Olathe, Kansas, the boiler exploded and he was hilled. Held,, that an administratrix cannot adopt a judgment after it has been rendered in favor of an individual, but under the Federal Law she must sue as the personal representative (177 Mo. App. 155).</p> <p>2. INSTRUCTIONS: Singling out Testimony of Witness. An instruction, which stated that unless the jury believed the fireboxes, referred to by the witness Purdue, were of the same shape as one which was on the engine that exploded, they should entirely disregard his testimony, is erroneous, because the effect of this instruction was to single out Purdue’s testimony and was a negative form of comment on it.</p>

<p>1. PHYSICIANS AND SURGEONS: Contracts: Medical Service. Plaintiff sued to recover for balance due on a contract for professional services in treating the wife of the defendant. Defendant contended that plaintiff had agreed to cure his wife and that his failure to do so was due to the inefficiency of the treatment. Held, that plaintiff was not entitled to recover the balance due on the contract.</p> <p>2. -: -: Prevented from Rendering Service. Where a party to a contract forbids its performance by the other or interferes with its performance by the other to an extent which amounts to a refusal of performance, the other party thus interfered with may recover as if he had performed his contract. But the question as to whether or not plaintiff was prevented from rendering the medical services necessary to effect such cure was properly submitted to the jury.</p> <p>3. EVIDENCE: Husband and Wife: Testimony of Wife in Suit Against Husband. Services rendered by a physician for a wife under employment by the husband are necessaries the husband is under legal duty to provide and the testimony of the wife is admissible in an action brought against her husband for such necessaries.</p>

<p>J.. Tax Bills: Advertisement: Bids: One Week. Where the law required an advertisement for bids for a sewer to be published “for not less than one week,” and the publication was begun in a daily newspaper published at 5 o’clock p. m. on the 20th of December stating that bids would be received “until 9 o’clock .a. m. of the 27th of December;” it was held that one week had mot expired between the time of the first publication and the time of opening the bids and that the tax bills issued for the work were void; and that the publication at 5 p. m. on the evening of the 27th, eight hours after the bidding was closed; did not validate the notice.</p> <p>‘2. -: -: One Week: Seven Days. Where the law reads that a notice must be published for one week, it means a period of seven'full days.</p> <p>:3. -: -: Fractions of a Day. Though the law ordinarily does not take note of fractions of a day, yet where the law prescribing a certain notice itself names the hour of the day, then heed must be given to the hour named.</p>

<p>1. NEGLIGENCE: Railroads: Live Stock: Actual Knowledge. A railway track was fenced through a farm and there was a farm crossing, with gates, for the use of the owner of the farm. The owner attempted to drive four loose mules through the gates. When turned in on the right of way they ran off down the track a considerable distance. The owner finally got them turned back to the crossing but two of them still would not go out the opposite gate and were killed by a passing train. It was held that it was found that as the mules were thus placed in a dangerous position by the negligence of the owner, he could not recover. Further held, that if such servants actually saw the mules in peril in time to have avoided striking them, it was their duty to have done so.</p> <p>2. -: -: -: -: Inference: Plain View. Evidence that mules could have been plainly seen on the track by the engineer or fireman of a locomotive engine, is sufficient upon which to base an inference that they did see them.</p> <p>3. -: Duty: Lookout: Stock. It is the duty of railway servants in charge of an engine to be on the lookout for stock at farm crossings.</p> <p>4. -: Negligence of Owner: Duty: Lookout. If the farm owner in attempting to drive his stock over a farm crossing negligently allows it to run off down the right of way, the railway servants in charge of the engine are not required to be on the lookout for such stock.</p> <p>5. -- — : Negligence: Duty. There is no actionable negligence unless there is a duty owing to the complaining party.</p> <p>6. .. q Negligence: Duty: Question for the Jury. Whether the owner was guilty of negligence in permitting his stock to run away from a farm crossing and then back to it where they were struck by a railway engine is a question for the jury.</p> <p>7. ■: Negligence: Evidence. There is no duty to sound the whistle of an engine for the approach to a farm crossing, and it is error to admit evidence of the railway company’s servants failing to sound such whistle.</p>

<p>1. DAMAGES: Insufficient Area: Shortage in Acreage. The plaintiff sued to recover damages for a deficiency in the area of land, which defendant conveyed to him by warranty deed. The defendant platted a certain tract of land, filed the plat according to the statute, and then conveyed two lots to plaintiff containing 19% acres, while in reality they contained 17% acres. EM that the plaintiff was entitled to recover for the shortage regardless of whether the errors were due to design or mistake.</p> <p>2. -: Reference to Maps or Plats in Deeds. A reference to a map or plat in the description of a lot or tract of ground incorporates such map or plat in the deed.</p> <p>3. EVIDENCE: Contemporaneous Oral or Written Agreements. In an action for a breach of warranty in a deed the evidence of prior or contemporaneous oral or written agreements are inadmissible since such agreements become merged in the deed, which must be accepted as the final and exclusive contract between the parties.</p> <p>4. WARRANTY DEEDS: Descriptions: Courses, Distances and Monuments. Where a description in a deed contains a statement of quantity, courses, distances and monuments, in case of conflict, the monuments will control, and in such ease proof that distances or quantities are short does not prove that the grantee did not get what his deed calls for.</p> <p>5. -: -: Statement of Number of Acres. Where a description is by metes and bounds, by sections, or quarter sections, according to government survey, followed by the number of acres the description controls and an erroneous statement of the number of acres in the land conveyed does not constitute a breach of warranty.</p> <p>5. -: -. Between the purchaser of a lot and one who promulgates a plat describing and defining the lots thereof, the purchaser will not he held at his peril to ascertain whether or not the plat agrees with the original survey of the land subdivided and platted; but he is justified in assuming that the plat is correct and that the lot or lots purchased by him are of the dimensions, and are hounded by the courses and districts as indicated on the plat, to which, for particulars, his deed must refer when the lot number alone is given in the deed.</p>

<p>1. NEGLIGENCE: Guarding Machinery: Application of Statute. Section 7828, R. S. Mo. 1909, requiring machines in manufacturing establishments when so placed as to be dangerous to be safely and securely guarded if possible, and if not, then notice of its danger to be posted, applies not only to a machine which is so placed as that its normal and proper operation is dangerous to employees by reason of their liability to come into contact with it, but also to that machine which is so 1 located as to be dangerous by reason of breakage and flying particles caused by its ordinary operation when the breakage and flying particles are of such frequent and ordinary occurrence as to give reasonable ground to anticipate injury to an employee.</p> <p>2. -: -: -. The master is not required to guard against such dangers or accidents as no human knowledge or experience could anticipate.</p> <p>3. -: -: -: Assumption of Risk. Where the injury arises from a failure to obey the statute, the doctrine of assumption of risk cannot apply because that would, in effect, repeal the statute.</p> <p>4. -: -: -: Contributory Negligence. Under the facts of this case the act of the plaintiff in continuing to work at the machine after knowledge of the danger was assumption of risk rather than contributory negligence. But if there is a point at which assumption of risk shades into contributory negligence the danger must be so glaring and obvious that a person would not attempt to work there. In view of the fact that plaintiff was a minor 18 years of age, and other employees had worked at the machine without injury, he was not guilty of contributory negligence as a matter of law.</p> <p>5. -: -: -: -: Evidence of Subsequent Guarding. In this case, by virtue of the statute, the possibility of guarding is an issue in the case. And where defendant contends that it is impossible to guard the machine because the guard will prevent the operator from seeing the work, evidence that the .machine was subsequently guarded is admissible to prove this issue but not to prove negligence. Evidence is admissible, if competent, upon any material controverted fact. If a party wishes to limit the evidence to such fact, he should request the court to so limit it. If the subsequent guard were an invention discovered later it might not be admissible, but where it is so simple in character as a leather strap, which must have occurred to a prudent man at any prior time had he given the matter attention, its subsequent use cannot be excluded on the ground that it was a subsequent discovery or invention.</p> <p>6. DAMAGES. There can be no recovery for future damages unless the evidence shows they are reasonably certain to happen.</p> <p>7. -: Instruction Combined with Erroneous Argument. Plaintiff lost an eye but there was no evidence showing any reasonable probability of losing the other eye. One of plaintiff’s instructions authorized the jury to give damages for loss of his eyesight and for his future inability to earn a living. Upon this instruction an argument was made that the jury should take into consideration the fact that the other eye might be lost. Defendant objected, but the court did not correct the argument. Under these circumstances the jury would naturally he led to think that they could award damages covering the possibility of the loss of the other eye when there was no evidence that such would likely occur. This was error.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Thos. J. Seehorn, Judge.</p>

<p>1. PLEADING: Petition in Three Counts. A petition, stated in three counts, which alleges a certain contract, and sets up that the contract was that a carload of pears was sold and the title passed at point of shipment hy reason of a certain trade custom, which is pleaded in all three counts, is hut a statement in different language of the same cause of action in all three counts. And when that is the case the court does not err in submitting it upon one count and in refusing to submit the other two.</p> <p>2. -: -: Trade Custom. A petition which alleges a certain trade custom in all three counts as the basis for the construction of a contract must prove the existence of that custom or fail especially where its conceded action is contrary to its claim with regard to the contract aside from the alleged trade custom.</p> <p>3. SALES: Vendor’s Lien: Passing of Title. When a contract of sale has been made and the intention of the parties is that the title to the property sold shall pass immediately, the vendor nevertheless has a right to retain possession until the price is paid and such insistence is not inconsistent with the fact that the title has passed. But the fact that the title did pass must be first established or admitted.</p> <p>4. -,; -: -: Shipping Goods to Shipper’s Order. When one ships goods to one’s own order, the title to the goods is thereby retained in the shipper, unless a contrary intention is shown to have existed in the minds of the parties. In this case that intention could only be shown by a custom or trade usage and as that failed, the title was not shown to have passed.</p>

<p>1. STATUTES OF FRAUDS: Judicial Sales. The amendment of 1887 to the Statute of Frauds providing that “no contract for the sale of lands made hy an agent shall be binding upon the principal unless such agent is authorized in writing to make said contract,” does not apply to judicial sales wherein the sheriff acts as an arm of the court in the exercise of judicial power. The amendment deals only with those sales made by an agent under private authority and has nothing to do with sales ordered by the courts under public authority of law.</p> <p>2. PARTITION SALES: Recalcitrant Bidder: Liability Under Statute. Under Secs. 2223 and 2693, R. S. Mo. 1909, a cause of action is given against a bidder whose bid is accepted, and who refuses to pay his bid, for any loss occasioned by a subsequent resale. And the sheriff can proceed as though no such sale has been made. The statute does not require the sale to be reported and confirmed. The bidder, under said statutes, renders himself liable when he makes the bid and it is accepted by the sheriff.</p>

<p>1. COVENANTS: Deeds: Assumed Name: Warranty. One who really owns land, the title to which is in the name of another, and who directs that other to make a warranty deed to a third person, which is done, the act of making the deed is not the owner’s act under and assumed name and he is not liable on the warranty.</p> <p>2. -: -- — : -. M. owned land in Kansas the title to which was in the name of F., his stenographer. R. owned land in Missouri and he and M. made an exchange, M. directing F. to make and acknowledge a warranty deed to R. There was a failure of title to the Missouri land and R. brought his action on the warranty against M., alleging that he had executed the deed and made the warranty under the assumed, name of F. It was held that he could not maintain such action.</p>

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

<p>1. NEGLIGENCE: Personal Injuries: Piling of Boards. The plaintiff sued to recover for personal injuries sustained while in the employ of defendant. Plaintiff was engaged in removing slabs from one of several piles of lumber, which were very high and close together, although not depending on one another. While he was on the top of a pile throwing down the slabs, the adjoining pile started to fall on him, and he was compelled to jump seven or eight feet to the floor, whereby he was injured. Held, that the demurrer to the evidence was properly overruled.</p> <p>2. -: -: Assumption of Risk: Usage or Custom. Where timbers, stocks, bags, boxes, crates, etc., are piled in a method approved by general usage or custom, the risks of injury to the servant engaged in the work of piling or unpiling the same are incidental to the service and therefore assumed by him as a part of his contract of employment.</p> <p>3. -: -: -. Where men in building piles of lumber followed the method of construction prescribed by the defendant they are not guilty of negligence, and where a faulty method is shown to have been the cause of the injury the plaintiff is entitled to recover.</p>

— Hon. Arch. A. Johnson, Judge. (1) The court erred in admitting the evidence of the cost, doctor’s bills, hospital and medicine bills, of an operation of curatement. Dunnevant v. Mocksond, 122 Mo. App. 428; Haas v. Railroad, 111 Mo. App. 706; Waddell v. Met. Ry. Co., 113 Mo. App. 680; Caplin v. Transit Co., 114 Mo. App. 256; Halley v. Light Co., 115 Mo. App. 652; Wilbur v. Electric Co., 110 Mo. App. 689; Deland v. Cameron, 112 Mo. App. 704; Steinmann v. Transit Co., 116 Mo.

<p>1. INJUNCTIONS: Building Restrictions. Covenants in the nature of restrictions on the use of the fee, when reasonable and within the policy of the law, are valid, and if the intention of the parties is clear, equity will enforce them.</p> <p>2. -: -: “Street” and “Street Line”. The word “street” means the entire street in its broadest sense including everything from property line to property line. And where there is nothing to show that it was used in any narrow sense it will be taken to mean all of it, sidewalks and parkways as well as the travelled part in the center, and in a restriction appearing in a plat forbidding the erection of a house nearer than a certain distance to a front street and a certain distance from a side street line, there is no distinction to be made between the word “street” and the words “street line”.</p> <p>5. EQUITY: Right of Trial by Jury. In the trial of an equity case a jury is not demandable as a matter of right.</p> <p>4. CONSTITUTIONAL QUESTIONS. Kaising a constitutional question is not a matter of form. The question must really exist and if it does not exist it is not and cannot be raised. Merely inserting in the motion for new trial that a right guaranteed by the Constitution has been violated does not raise such question, where no such right has been violated, and the matter has been so often and repeatedly adjudicated as to be no longer open to debate.</p> <p>5. -: -: Waiver. The fact that the vendor knew the building restrictions were being violated did not constitute a waiver where the vendor at once protested against their violation and was guilty of no laches in bringing suit to prevent it. Nor does the fact that, after knowing the restriction was being violated, the vendor made a deed to the purchaser and accepted the balance of the purchase price. The covenant to obey the restrictions was again inserted in the deed and the purchaser was told that he must obey them, and in that event there was no waiver. The vendor had a right to have the contract specifically performed.</p> <p><8. -: -: -: Abandonment of Restrictions. The fact that there were instances of the violation of said restrictions by other purchasers would not show an abandonment of such restrictions by the vendor where the district was only recently platted, the vendor had done nothing to show that she had abandoned or intended to abandon them, and the general plan of restrictions seems to have been carried out.</p>

<p>1. NEGLIGENCE: Collision at Crossing: Contributory Negligence. Plaintiff in a wagon with a companion drove in a slow walk along a street to a railway crossing. The view to-the north was obstructed by store buildings, trees and the depot standing 18.3 feet of the track. A short distance north of the crossing there is a curve in the track. Plaintiff, before reaching the track stopped and listened for a train. He then proceeded toward the track and upon coming nearer to it looked through the space between the buildings to the track and saw no train. Seeing none and hearing none he continued on his way. A train approached from the north at a high rate of speed, estimated by the witnesses to be 40 miles per hour, in violation of an ordinance of the town. There was other disinterested evidence that the train made no noise as it approached. Plaintiff was seated at such a distance from the head of his horses that when he would get past the edge of the depot where he could see a short distance down the track te the curve the heads of the horses would be on the track. There was a space of six feet in which one could see down the track to the curve before the horses got directly on the track. Plaintiff’s companion was looking north as they passed this six feet and saw no train. Plaintiff looked south as they passed over this six feet and then looked north and both occupants-at the same instant saw the train bearing down upon them. At that time the horses were on the track and the plaintiff endeavored to get hurriedly out of the 'way and almost succeeded in doing so, but the train struck the rear end of the wagon and threw the men out injuring plaintiff. Held that plaintiff could not be said to have been guilty of negligence as matter of law. Comparisons of the speed of the wagon with that of the great speed of the train reasonably support an inference that at the time the parties were looking to the north, and in the six foot zone of safety after passing the depot, the train had not come in sight around the curve, and hence plaintiff did not knowingly pass from a place of safety into one of danger, and could not be said, as matter of law, to have failed to exercise the ordinary care that an ordinarily prudent man would have exercised under like circumstances.</p> <p>2. -: -: Acting in an Emergency. The fact that when the team was on the track, the plaintiff did not stop and back the team off but attempted to hurry on out of the way will not convict him of contributory negligence as matter of law. The question' is not what could have been done as determined afterward by a cool and collected person upon a calm review of all the facts, but whether what plaintiff did was the act of a prudent man at that time and under the peril of the situation in which he was then placed.</p>

<p>1. NEGLIGENCE: Municipal Corporations: Streets. Plaintiff, driving a horse and buggy, came to the intersection of two streets, and being unaware of a gully that had been washed out by surface water, the hind wheel of the buggy dropped into the gully, frightened the horse, which ran away, and he was thrown out of the buggy and injured. Held, that there was no prejudicial error in the record, which would warrant a reversal of the judgment.</p> <p>2. INSTRUCTIONS: Dangerous and Unsafe. An instruction which states “and you further find from the evidence that the said streets at said point were thereby rendered dangerous and unsafe,” is not so erroneous as to furnish ground for disturbing a judgment.</p> <p>3. -: Streets Open to Public Use. An instruction which states “that said streets had been by the city of St. Joseph thrown open for travel by the public thereon” is not erroneous, where the evidence shows not only continuous public use but also that the city Kept both streets in repair and thereby invited the public to use them.</p> <p>4. NEW TRIAL: Newly Discovered Evidence. Where the court refuses to grant a new trial on the ground of newly discovered evidence, when the affidavits filed in support thereof fail to disclose reasonable diligence to discover the new witness in time to procure his testimony at the trial, it is not error.</p>

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

<p>1. FRATERNAL BENEFICIARY ASSOCIATIONS: Life Insurance: Evidence: Burden of Proof. In a suit on a policy of insurance the question of whether the defendant is a fraternal beneficiary association or a regular insurance company is one to be decided upon the proof. And the burden is on the defendant to show that it is a fraternal company. The mere form of the contract, as distinguished from its character, does not prove defendant to be a fraternal beneficiary association.</p> <p>2. -: Forfeiture: Suspension: Pleading. Where defendant relies upon forfeiture as a defense it must plead all the facts necessary to show forfeiture. Mere suspension does not, ipso facto, work a forfeiture unless the contract expressly provides to that effect. Where the by-laws of the company provide that upon suspension the insured may reinstate himself in the company and still another method under certain circumstances where, by vote, he may be reinstated, mere suspension does not ipso facto work a forfeiture. In such case suspension merely places the insured in a position where a forfeiture may be declared, and the forfeiture does not oecur until that is done.</p> <p>3. -: -: Construction. Where a forfeiture is relied upon the one claiming it must clearly allege and prove it, and it will be construed most strictly against the insurer and in favor of the insured.</p> <p>4. -: -: Evidence. By suspension is meant of course a lawful suspension. And in an action by the insured’s beneficiary on a policy it is not competent to prove the fact of suspension by mere statements or declarations of the beneficiary that he has been suspended.</p> <p>5. -: Insurable Interest of Plaintiffs: Burden of Proof. Where the persons named in the policy are the plaintiffs, the burden of proving they are not entitled to sue rests on defendant. Want of insurable interest must be specially pleaded and cannot be shown under a general denial.</p> <p>6. -: Failure to Pay Premiums: Evidence: Burden of 'Proof. Where the company pleads failure to pay premiums or assessments, the burden is on it to prove such failure.</p> <p>7. -: Proofs of Loss: Waiver. Any act or conduct on the part of the insurer making it apparent that the furnishing of proofs would be an unnecessary formality amounts to a waiver thereof.</p> <p>8. —:-: Evidence: Application as Part of Policy: Admissibility. Where the suit is on the policy and the application is not the foundation of plaintiffs claim and does not qualify the . terms of the policy, but contains matter of defense only, plaintiff ought not to be compelled to offer the application in evidence when the policy is offered but the defendant should put the application in when its evidence is offered especially when the question whether its contents are material will depend upon what the defendant proves in addition thereto.</p> <p>9. -: —-: Order of Proof. While the order in which proof may be introduced is largely in the discretion of the trial court, yet, plaintiffs ought not to be compelled to introduce as a part of their case, evidence that is matter of defense only. The orderly introduction of proof by the respective parties relying thereon tends to clarify the issues and to prevent confusion as to who has the duty of going forward with the proof.</p>

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

<p>1. BILLS AND NOTES: Attachments: Judgment by Confession. The plaintiff sued defendants on a promissory note in a justice court and an attachment was issued in aid of the suit. At the trial of the cause plaintiff was given judgment by confession. An appeal was refused, because it would not lie from a judgment by confession. The circuit court sustained a motion for a rule on the justice to grant an appeal, and afterwards overruled a motion to dismiss the appeal. Held, that the circuit court erred in issuing the rule on the justice and afterwards in overruling the plaintiff’s motion to dismiss the appeal.</p> <p>2. JUDGMENTS BY CONFESSION: Written or Oral Confession. Where a defendant appears in response.to summons regularly issued and served upon him, and confesses judgment, either in writing or orally, a formal judgment by confession may be rendered against him. An oral admission of the justice of the plaintiff’s cause interposed when the case is called for trial is such an acknowledgment as will authorize the rendition of a judgment by confession.</p> <p>3. APPlEAL AND ERROR: Statutes. Under Section 562, R. S. 1889, a defendant could not appeal from a judgment rendered against him on a plea in abatement, but he must appeal from the judgment of the case on its merits in order to get the case before the appellate court for review of the trial and judgment on the plea in abatement.</p> <p>4. -: -. An appeal is only allowed to a defendant in a justice court from a judgment against him on the merits of the cause. If the judgment be in. his favor, or if against him be of a class that is not appealable, he cannot appeal from an adverse finding on the plea to abate since the statutes give no such right.</p>

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

<p>1. PLEADING: Joinder: Fraud: Warranty. A sold a jack to B for breeding purposes. B became dissatisfied and brought an action against A, joining two counts in the petition, one for breach of implied warranty and the other for fraud and deceit. It was held that these two causes of action, one eat contractu, and the other ex delicto, could not be joined in one petition and the court should have compelled the plaintiff to elect.</p> <p>2. NEW TRIAL: Weight of Evidence. If a trial court sustains a motion for new trial on the ground that the verdict was against the weight of the evidence such action will be approved if there is any substantial evidence against the verdict.</p>

<p>Appeal from Boone Circuit Court. — Hon. I). H. Harris, Judge.</p>

<p>1. REPLEVIN: Pleading: Ownership. ,A petition in replevin in the circuit court should allege an ownership or right of property in the plaintiff.' Though it may be amended if one of such allegations is not made.</p> <p>2. HUSBAND AND WIFE: Agency: Prize Contest. In a voting contest for the most popular lady in the community gotten up by a newspaper to increase its circulation and offering an automobile for a prize and two diamond rings for first and second prizes, the husband of one of the contesting ladies may be her agent, without authority in writing, in disposing of the principal prize if she won it.</p> <p>3. -: -: Ratification: Pleading. If the husband acts as agent for his wife without authority from her, she is not bound unless she afterwards ratifies his acts. But ratification cannot be shown unless pleaded.</p> <p>4. -: -: Evidence: Instructions. Agency of the husband or verbal authority to dispose of his wife’s property should be shown by clear and unequivocal proof and the jury should be cautioned as to the relationship of husband and wife.</p>

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

<p>1. NEGLIGENCE: Personal Injuries: Telegraph Lines: Guy Wires. The plaintiff sued to recover for personal injuries sustained by colliding with guy wires connected with the defendant’s telegraph line maintained in one of the public streets of St. Joseph. The causé was considered in a former appeal (167 Mo. App. 533), but the defendant now contends that the evidence is so vitally different from the former record that it is insufficient in law. Held, that the demurrer to the evidence was properly overruled.</p> <p>2. Evidence: Witnesses: Experts. When the opinion of plaintiff’s medical experts seems as reasonable as the contradictory opinions, it is for the jury to say whether they would be guided by one or the other or by neither of such opinions.</p>

<p>1. WATERWAYS AND WATERCOURSES: Damages: Pollution of Streams. This suit was instituted against the defendants to recover damages actual and punitive for the pollution of a natural watercourse. The plaintiff owned and lived on one of the servient farms, which was below the defendants, but on the same watercourse. The defendants fed cattle and hogs from the slops of the distillery and flushed the sewage into the stream causing the plaintiff’s damage. Held, that the evidence of plaintiff abundantly supported the charge of a joint wrong committed maliciously by all the defendants.</p> <p>2. -: -: -. Punitive damages may be asked and allowed in actions for torts where the injury is willful or is the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them.</p>

<p>BILLS AND NOTES: Consideration: Signing after Delivery. When one signs a note after it has heen executed and delivered and the consideration has passed between the parties, he incurs no liability unless there be a new consideration, but where a note is so signed pursuant to promise or agreement made in advance of the delivery the act relates bach to the inception of the first contract and no new consideration is required.</p>

<p>LANDLORD AND TENANT: Subleases: Forfeiture: Surrender. Plaintiffs were lessees of an entire building for a term of years with power to sublease. They subleased a room and basement for a term two days shorter than the termination of their lease giving the sublessee power to sublease. The sub-lessee in turn sublet the basement and the secondary sub-lessee spent considerable money in fixing it for occupation, all with the knowledge and consent of the original lessors. The primary sublessee surrendered his lease and received a release from all liability to pay rent although his lease provided that in case he terminated his lease the duty to pay rent should not cease. £TeM, that this was a voluntary surrender of his lease agreed to by the lessees, and hence did not terminate the secondary sublessees term, since a tenant for a term cannot surrender his lease to the prejudice of the subtenant.</p>

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

- — Ron. Guy D. Kirby, Judge. The answer in this case is insufficient because it goes no further than to say that the claim is founded on a gambling transaction.

— Eon. Guy D. Kirby, Judge. (1) No injury could- come to defendant from the presence in the petition of two counts, one predicated upon nuisance, the other upon negligence, in view of the power and. duty of the court to eliminate by instruction. White v. St. Louis & Merimac R. R. Co., 202 Mo. 539. (2) Where defendant has been enjoined from blasting and violated the restraining order, and continued such operations in the face of the order, punitive damages should be recovered.

— Now. Carr McNatt, Judge. (1) The Court erred in permitting defendant to testify that he owed only one-third of the original note, while the note itself showed the defendant was liable for all of it; in permitting defendant to testify that the payee had said that Henry Short had paid all he owed on the note; in permitting Gillie Short, the wife of one of the makers of the note sued on, to testify to statements and conversations of her dead husband; permitting the defendant…

— Hon. W. N. Evans, Judge. -Tbe court erred in sustaining demurrer to defendant’s answer. A failure of plaintiff to do what he promised to do as an inducement to get an approval of the order given by Daniels, was a failure of consideration, and that a consideration from plaintiff to the bank was essential to make a legal contract. The indorsement of the president of the bank was, procured by fraud and sharp practice, and that fraud vitiates the contract.

B. A. Breuer, Special Judge. (1) In order to recover in this action plaintiff must show his acts were the procuring and inducing’ cause of the sale. Ramsey v. West, 31 Mo. App. 676; Vandyke Co. v. Walker, 49 Mo. App. 381; Pollard v. Banks, 67 Mo. App. 187; Crawley v. Summerville, 70 Mo. App. 376; Campbell v. Vanstone, 73 Mo. App. 84; Bassford v. West, 124 Mo. App. 248; Mead v. Arnold, 131 Mo. App. 222; Russell v. Poor, 133 Mo.

— Hon. Guy D. Kirby, Judge. (1) The court erred in permitting so-called hypothetical questions to be propounded which did not embrace all the facts and circumstances in evidence in the case. Smith v. M. & K. Tel. Go., 113 Mo. App.-429; Bragg v. Railway Co., 192 Mo. 33Í; Glasgow v. Railway Co., 191 Mo. 347; Spaulding v. City of Edina, 122 Mo. App.- 65; State v. Forsha, 190 Mo. 296; Smith v. Kansas City, 125 Mo. App. 150; Baeher v. Union Co., 133 Mo.

— New. Arch. A. Johnson, Judge. (1) City of third class may open streets by ordinance of the council. Sees. 9258 and 9262, R. S. 1909, and secs. 5861 and 5864, R. S. 1899. (Must be by ordinance by either R. S. .1909 or 1899.) (2) Must prove that work was done and ordered to be done under an ordinance. Rowland v. City of Gallatin, 75- Mo. 134 (This case is approved by late case' of McQuartin v.' City of St. Joseph, 114 S. W. 1140.) Gleason v. City of Kirksville, 136 Mo.

Two. — Hon. Do,vid E. Blair, Judge. (1) The court acquired no jurisdiction of the ■cause of defendant for the reason the petition was not .accompanied by an affidavit such as required by section 2371, R. S. 1909, it was signed by no one. Loveless v. Hinkle, 204 Mo: 208; Hargadan v. Van Horn, 72 Mo. 370; Norman v. Horn, 36 Mo. App. 424; Third National Bank of Sedalia v. Garton, 40 Mo. App. 120.

<p>APPELLATE PRACTICE: Statement of Case: Briefs: Penalty for Failure to File. Each, party is required to furnish, the appellate court with a clear and concise statement of the case and the points intended to be insisted upon in the argument (Sec. 2080, R. S. 1909); and appellant in a civil case is required to file a brief within a specified time (Court Rule 18); failure to comply with these requirements will result in a dismissal, or, at the option of the respondent, a continuance at the cost of the party in default (Court Rule 21).</p>

Division Number Two. — Hon. D. E. Blair, Judge. (1) An attorney at law is an officer of the court, and is not required to produce a warrant of attorney in any ease pending in the court. His professional obligations raises the presumption that he has such authority. State ex rel., Ponath v. Muench, 230 Mo. 236. S. C. 130 S. W. Rep., 282, and authorities cited. Sec. 1728, R. S. 1909; State ex rel. v. Crumb, 157 Mo. 557; Miller v. Continental Assur. Co., 233 Mo. 91.

— Hon. Joseph D. Perkins, Judge. (1) The court should have given the peremptory instruction asked by the defendant at the close of the evidence. No negligence was shown. Breen v. St. Louis Cooperage Co., 50 Mo. App. 202; Bennett v. Lumber Co., 116 Mo. App. 699; Fisher v. Central Lead Co., 156 Mo. 479; Brands v. Street Car Co., 213 Mo. 698; Southerland v. G-arretson Lumber Co., 130 S. W. 40; Trigg v. Land & Lumber Co., 187 Mo. 237; Kipper v. Shoe Co., 116 Mo. App. 167.

— No». Guy D. Kirby, Judge. (1) The court erred in declaring the degree of care required of defendant by instructing that the very highest degree of care was required. Chrismer v. Bell Tel. Co., 194 Mo. 189; Kelley v. Lawrence, 195 Mo. 75; Bennett v. Himmelberger, 116 Mo. App. 699'; Dunn v. Nicholson, 117 Mo. App. 374; Browning v. Railroad, 118 Mo. App. 449; Loehring v. Westlake Co., 118 Mo. App. 163 ; Kane v. S. L. K. C. Co., 112 Mo. App. 650; Rigsby v. Oil Co., 115 Mo.

Two. — Hon. David E. Blair, Judge. (1) The court erred in permitting defendants over plaintiff’s objection to‘prove a contract of Reynolds with Moark-Nemo Company for sale of tailings off the ground, as it did not tend to prove or disprove the issues between plaintiff and defendants.

<p>1. QUO WARRANTO: Amendment of Pleadings: Statutory Provisions. In a quo wammto proceeding to oust a corporation of its franchise on account of misuser, the prosecuting attorney-may amend his information so as to allege the continuation of the acts complained of up to the date of the trial. (Secs. 1821, 1848 and 1864, R. S. 1909.)</p> <p>2. CORPORATIONS: Testing Validity of Incorporation: Quo Warranto not Method. In a proceeding against a corporation by quo warranto the State cannot question the fact that the corporation was duly and legally authorized. To test the validity of the act of incorporating, the information should be filed against the individuals who, it is claimed, are usurping the prerogatives of a corporation.</p> <p>3. QUO WARRANTO: Dissolution of a Corporation: Parties. Where the object of a quo warranto proceeding is to effect the dissolution of a corporation which has an actual, legal existence, the proceeding is properly against the corporation.</p> <p>4. -: Nature of: Purpose. Quo warranto proceedings are in the nature of a public prosecution. Their purpose is the recovery to the State of usurped or forfeited franchises and not the redressing of private grievances.</p> <p>5. CORPORATIONS: Misuser of Franchises: Forfeiture: Necessary to Show What. To forfeit a corporate franchise for misuser in quo warramto proceedings it must be shown that the acts complained of are detrimental to the public welfare and that they work or threaten substantial injury to the public, or amount to a violation of the purpose for which the corporation was organized.</p> <p>6. -: Franchise of: .Powers: Definitions. A corporation franchise is the right to exist as an entity for the purpose of doing things which are permitted under the law authorizing the incorporation. A corporation’s powers are the things it is authorized to do.</p> <p>7. -: Quo Warranto: Forfeiture of Franchise. The State, by quo warranto proceedings, may inquire into and ascertain the validity of the objects and purposes for which a corporation is organized, although the corporation has procured a pro forma decree from tbe circuit court and bas had issued to it a certificate of incorporation.</p> <p>8. -: Objects: Purposes: Authorized and Unauthorized: Scope of Quo Warranto. Where some of the objects and purposes for which a corporation was formed are duly authorized and others are not, although the State in quo warranto proceedings cannot deny the corporate existence, yet the corporation’s right to exercise the objects and purposes which are not authorized may be thus attacked.</p> <p>9. -: Fraternal: Beneficial: Educational: Scientific: Statutes Discussed. Secs. 3432 and 3435, It. S. 1909, providing for the organization of corporations for fraternal, beneficial, educational or scientific purposes discussed relative to scope and latitude allowed.</p> <p>10. -: Charter: Meaning of Expressions in. In the articles of incorporation the statement that the corporation is chartered for “any and all other lawful indoor sports and harmless games that may be acceptable and beneficial to its members,” only applies to that kind and character of exhibitions which are specifically mentioned before in the charter.</p> <p>11. -: Purposes for Which Organized: Acts Outside of Chapter. -A corporation organized for the purpose of giving athletic exhibitions for its members’ entertainment, held not within the purview of secs. 3432 and 3435, R. S. 1909, which provide for the organization of corporations for fraternal, beneficial, educational and scientific purposes.</p> <p>12. —-------: Forfeiture of Franchise: Quo Warranto: Facts Reviewed. In a quo warranto' proceeding to oust a corporation of . its franchise because of misuser, evidence examined and held to show that the corporation was engaged in giving public boxing exhibitions in violation of the criminal laws of the State, that this was the only purpose of its incorporation and that it should be ousted of its franchise.</p> <p>13. PRIZE FIGHT: Definition: Statutory Inhibition. Term “prize fight” construed, pointing out the nature and elements of a contest such as is prohibited by statute.</p> <p>14. -: Authority of Third Class Cities as to: General Statutory Provisions. Though Sec. 9253, R. S. 1909, confers upon cities of the third class authority to license, regulate or suppress boxing and sparring exhibitions, such section cannot take precedence over Sec 4681, R. S. 1909, which prohibits such exhibitions.</p> <p>15. STATUTES: Special and General: Construction. The mere grant of a power to a municipality, with no words clearly showing an intention to make such power exclusive, will not exclude the general State law.</p>

<p>1. CRIMES AND PUNISHMENT: Appellate Practice: Duty of Court to Examine Record. Although, on appeal from a judgment of conviction in a criminal prosecution, no briefs are filed and no assignment of error is made by appellant, it is the duty of the court to examine the record and pass judgment thereon, under Sec. 5312, R. S. 1909.</p> <p>2. LIBEL AND SLANDER: Criminal Slander: Sufficiency of Information, Judgment and Evidence. In a prosecution for falsely and maliciously charging another with having committed perjury, held that the information and the judgment were in due form and that the evidence was sufficient to sustain a conviction.</p>

Louis City Circuit Court. — Now. George C. Hitchcock, Judge. (1) There was no proof as to any negligent or improper handling of the defendant’s train or engine. Therefore, plaintiff was not entitled to recover. Tick-ell v. Railroad, 149 Mo. App. 652; Ray v. Railroad, 147 Mo. App. 332; Hedrick v. Railroad, 195 Mo. 121; Portuchek v. Railroad, 101 Mo. App. 52; Erwin v. Railroad 94 Mo. App. 289; Saxton v. Railroad, 98 Mo. App. 503; Young v. Railroad, 93 Mo.

Louis County Circuit Court. — Hon. Gustavus A. Wurdeman, Judge.

' Louis City Circuit Court . — Hon. Charles Claflin Allen, Judge. The court erred in overruling defendant’s motion to strike out the testimony of Dr. Hopkins relating to the question of Bright’s disease, (a) Because there was no causal connection established between the accident and the disease known as Bright’s disease. Warner v. Railroad, 178 Mo. 125; Goransson v. Mfg. Co., 186 Mo. 300; Trigg v. Land Co., 187 Mo. 227; Byerly v. Light Co., 130 Mo. App. 593.

Louis City Circuit Court. — Eon. William M. Kinsey, Judge. (1) The petition in this case is based on Sec. 8295, R. S. 1909. In order to recover, the plaintiff’s evidence must bring her within the purview of this section, i. e., abandonment by defendant and refusal or neglect to maintain' and provide for her. Sec. 8295, R. S. 1909; Droege v. Droege, 52 Mo. App. 84; Sharpe v. Sharpe, 134 Mo. App. 278.

Louis City Circuit Court — Hon. Eugene McQuillen, Judge. (1) Tlie statement of account filed in the justice court and continued unamended in the circuit court was insufficient to apprise appellant of the nature of the claim, and was¡ insufficient in law. The statement contains no dates upon which, the work was done, or dates either when moneys were received or expended.

Louis City Circuit Court. — Eon, James E. Withrow, Judge. (1) The general rule is that where the application to set aside a judgment by default discloses a good defense on the merits and a reasonable excuse for delay is shown and no substantial injury has resulted from such temporary delay, the court should exercise its discretion in favor of the trial on its merits, and an appellate court is less apt to interfere when the judgment was set aside than when it was not.

— Eon. W. S. C. Walker, Judge. (1) The court erred in sustaining a part of plaintiff’s motion to strike out and striking out that part of plaintiff’s petition relating to the assuming of this note in… Held: does not convert the suit from an action at law to one in equity. Wolf v. Schaffer, 74 Mo. 154; Carter v. Prior, 78 Mo. 222.

<p>1. CORPORATIONS: Misapplication of Corporate Funds: Liability of Payee. One who takes the check of a corporation in payment of a personal obligation of an officer thereof is charged with notice of the character of the paper, and if the corporation's funds are thereby misapplied and it suffers a loss therefrom, it may recover from the person accepting the same.</p> <p>2. -: -: -: Sufficiency of Evidence. In an action by a corporation to recover the amount of checks wrongfully drawn on its account by one of its officers and accepted by defendant in payment of the officer’s private obligation, evidence helé to establish that, before the action was brought, plaintiff corporation had received back more than the amount wrongfully appropriated by the officer, so that it suffered ho loss from the transaction, and hence it was not entitled to recover.</p> <p>3. CORPORATIONS: Capital Stock: Agreement as to Payment: Estoppel. Where, by an agreement of all the stockholders, property is transferred to the corporation in payment of the capital stock, which is issued as fully paid and nonassessable, the corporation is estopped, as against the stockholders, to claim that the stock was not fully paid for.</p> <p>4. CONFUSION OF GOODS: Application of Doctrine. The doctrine of title by confusion of goods was not applicable to give a corporation title to an officer’s personal funds, on the ground that he had deposited his money with that of the corporation, where the accounts of the corporation and the officer were afterwards separated and the parties struck a settlement.</p>

Louis City Circuit Court — Hon. William M. Kinsey, Judge. (1) The statement filed before the justice of the peace was not sufficient. Secs. 7412, 7413, R. S. 1909; Rechnitzer v. Vogelsang, 117 Mo. App. 148 ; Broughton v. Railway, 25' Mo. App. 10.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) There is no evidence in this case upon which to bottom the decree entered herein. (2) The members of a voluntary association are not liable for the wrongful acts of the agents of such association unless they directed, participated in or approved of such wrongful acts. Mere membership in a voluntary association is not sufficient to make a member liable for the wrongful acts of the agents of such association.

Louis City Circuit Court. — Ron. J. Rugo Muench, Judge. (1) The amended petition does not state a cause of action because it fails to charge that the defendant had actual or constructive notice of the defective condition of the automobile which is alleged to have caused injury to plaintiff. This is a fatal omission. It is always necessary for the servant to allege and prove notice, either actual of constructive, to the master. Miller v. La Prelie Shoe Co., 109 Mo.