Volume 179 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge. The court erred in giving the peremptory instruction, because death from accident is covered by the policy, (a) The exemption from liability for injuries, not received on a common carrier, does not refer to the death provision, but is limited to the injuries mentioned. Chatterton v. Ins. Co., 68 N. J. L. 79.

<p>1. CRIMES AND PUNISHMENTS: Appellate Practice: Duty of Court to Examine Record. On appeal from a judgment of conviction in a criminal prosecution, it is tlie duty of the court, under Sec. 5312, R. S. 1909, to examine the record for error, notwithstanding appellant fails to file a brief.</p> <p>2. LARCENY: Indictments and Informations: Sufficiency of Information. An information charging defendant with petit larceny held sufficient.</p> <p>3. -: Sufficiency of Evidence. Evidence in a prosecution for petit larceny held sufficient to sustain a conviction.</p>

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) Every member of Local Union No. 1 is liable in damages to any person who suffers loss through the enforcement of its -written or unwritten rules, which provide that no man can work as a roofer in any union shop in St. Louis, unless he is a member of their union or unless he is otherwise satisfactory to it.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) It is well settled that proof of the issuance of the beneficiary certificate and death of the member establish a prima-facie case. Winn v. Modern Woodmen, 157 Mo. App. 1; Bacon, Ben. Societies and Life Ins. (3 Ed.) sec. 414; Mulroy v. Knights, 28 Mo. App. 463; Stewart v. Legion of Honor, 36 Mo. App. 319; Force v. Knights of Honor, 41 Mo. App. 106; Chadwick v. Triple Alliance, 56 Mo.

Louis City Circuit Court.— Hon. J. Hugo Grimm, Judge. (1) In an action brought on a special written contract, no verbal contract being pleaded, recovery ■cannot be had upon a contract, part of which is in writing, and other parts resting in parol. Koons v. Car 'Co., 203 Mo. 227; Smith v. Shell, 82 Mo. 219; Henning v. Ins. Co., 47 Mo. 425.

Louis City Circuit Court. — Hon. William B. Homer, Judge. (1) The law does not make a physician or surgeon an insurer against injury which may result to the patient from the treatment given.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The affidavit filed with defendants’ answer properly put in issue plaintiff’s corporate existence. R. S. 1909, sec. 1985; White v. I. O'. O. F., 30 Mo. App. 682; Meyer Bros. v. Insurance Co., 73 Mo. App>. 166. (2) The rule denying the right to question, in a collateral proceeding, a corporation’s existence applies only where the corporation had a de Jacto existence. White v. I. O. O. F., 301 Mo.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) For the purposes of attachment a debt has a situs wherever the debtor can be found. Neither is it materia] that the debt was not made payable in the State where the attachment proceedings are instituted. Wyeth IT. & M. Co. v. Lang, 54 Mo. App. 147; Wyeth IT. & M. Co. v. Lang, 127 Mo. 242; Dinkins v. Crunden Martin W. Co., 99 Mo.

<p>Scliroeder Wine and Liquor Company v. Willis Coal and Mining Company, ante, followed.</p>

<p>Schroeder Win© and Liquor Company v. Willis Coal and Mining Company, write, followed.</p>

<p>Schroeder Wine and Liquor Company v. Willis Coal and Mining Company, ante, followed.</p>

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The court erred in ruling that the five-year Statute of Limitations barred plaintiff’s right of recovery. He relied upon the representations of defendant, which under the circumstances he was entitled to do. He was not obliged to make an independent investigation to discover fraud.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. The court erred in giving the peremptory instruction to the jury to find a verdict in favor of plaintiff and against defendant, Frankfort Insurance Company, in the sum of $6753.40’ with interest from June 25, 1910.

<p>Century Realty Company v. Frankfort Marine, Accident and Plate Glass Insurance Company, ante, followed.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Eugene McQuillin, Judge.</p>

<p>PHYSICIANS AND SURGEONS: Malpractice: Sufficiency of Evidence. In an action against a surgeon for negligently closing a wound without removing therefrom a piece of gauze, after performing an operation on plaintiff, evidence held to establish that defendant gave plaintiff proper treatment, and hence it is held that plaintiff was not entitled to recover.</p> <p>NORTONI, J., dissents.</p>

Louis City Circuit Go-art. — Hon. Charles Claflin Allen, Judge. (1) Corporations, like individuals, are liable in actions quantum meruit for tbe reasonable value of services rendered. 21 Am. & Eng. Ency. of Law (2 Ed.), p. 907.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The foundation of a cause of action for a breach of warranty is, the existence of a deed with a covenant ag'ainst encumbrances, proof of the existence of a valid encumbrance, and payment thereof by the grantee. Patterson v. Young, 81 Mo. 381.

<p>Appeal from Buchanan Circuit Court. — How. L. J. Eastin, Judge.</p>

<p>1. TELEGRAPH AND TELEPHONES: Telegram: Delivery: Promptness: Penalty: Agent. The sender of a telegram banded it to the telegraph company’s agent to transmit and have delivered at the same time paying the charges asked by the agent. The message was not promptly delivered to the addressee as required by the statute (Sec. 3330, R. S. 1909) and it was held that the agent’s count of the words in the message and his statement and acceptance of the charge therefor was binding on the company, and it was therefore liable to the penalty of the statute for not delivering.</p> <p>2. -: Words “alright” and “all right”: Count: Charger Agent. Whether the expression “alright” in a telegraph message should be counted as one word or as two words, “all1 right,” is a matter to be determined by the telegraph company’s agent who received the message for transmission and fixed and collected the charge and his count and charge will bind the company.</p> <p>3. -: Statute: Rules: Agent: Estoppel. The statute requiring prompt delivery of telegraph messages and imposing a penalty for failure to do so is conditioned on the prepayment of proper charges demanded under the rules of the company. But if the company’s agent counts the words of the message- and announces the charge to the sender which the latter pays him, the company, in avoidance of the penalty for nondelivery,, cannot claim that the proper charge was not paid to it.</p>

<p>1. BILLS AND NOTES: Uncertain as to Amount or Time of Payment: Promissory Notes: Negotiability. Under the provisions of the Negotiable Instruments Act, Secs. 9972 and 9973, R. S. 1909, a note is not made non-negotiable by reason of the fact that it contains a provision for attorneys’ fees and for an extension of time of payment without notice, but, in the absence of such statute, either of such provisions would destroy its negotiability.</p> <p>2. -: Non-negotiable Instrument: Endorser’s Liability. The mere writing of his name on the back of a non-negotiable instrument does not make one liable as an endorser. There must be proof of the agreement under which the endorsement was made and that it was for a sufficient consideration. Consequently, the mere introduction in evidence of a non-negotiable note will not retake out a case against an endorser, even if proof is made of his signature.</p> <p>3. -: Locus of Contract. A note made in a foreign State and payable there is a contract of that State, and the liability of parties thereon is to be determined by the law of that State.</p> <p>4. EVIDENCE: Statute of Foreign State: Judicial Notice. Judicial notice cannot be taken of the statutes of a foreign State when they are issuable facts in a controversy. Formal proof must be made of them as of any other fact, and it is immaterial that the court may be possessed of independent knowledge of such foreign laws.</p> <p>5. --: -: -: Application of Law of forum. In suits on a foreign contract it is only where there is neither proof nor ground for presumption as to what the law of such foreign state is, that the court is justified in applying the laws of the forum.</p> <p>6. -: Law of Foreign State: Common Law: Presumption. Whenever it appears or is shown that a law is in force in a foreign state the presumption is that it continues in force until the contrary is shown. Consequently, if the foreign state is one in which the common law was established, prior to its admission into the Union, by statutes or governmental acts within the judicial notice of the court, and no proof is made as to the foreign law, the court is required to presume that the common law having been once in force there, has continued and is still in force.</p> <p>7. -: -: -: -: States not Subject to the Common Law: Lex Loci Contracts. It is only in respect of those States which were never subject to the common law, prior to their admission into the Union, that, in the absence of proof as to the lex loci contractus, the court will apply the statute laws of the forum.</p> <p>8. -: -: -: -: -. Although Iowa was originally a part of the Louisiana Purchase and was, therefore, under the French Law, yet, as the common law was, prior to her admission as a state, put into force there by the Territorial Laws of Missouri and by Acts of Congress, of ■which the court must take judicial notice, therefore, the common law must he presumed to he in force there, upon the question involved, until the contrary is shown.</p>

<p>1. PLEADING: Evidence: Failure of Proof. A coal miner was killed by a rock falling from the roof of the mine. If he was killed at his working place, the mining company was not liable; if he was killed at a point not his working place, the company was liable. The petition alleged that he was killed at a point from fifteen to twenty-five feet away from his working place, while the proof tended to show that he was killed outside his working place but nearer to it than fifteen feet. It was held that this was not a failure of proof.</p> <p>2. INSTRUCTIONS: Omitting Issue. A petition in an action for the death of a coal miner alleged that he was killed at a place which was not his working place. It was held to be error to give an instruction for the plaintiff omitting to submit whether the place he was killed was not the place where he worked.</p> <p>3. -: Question of Law. It is error to submit a question of law to a jury as to what part of a coal mine the law cast a duty upon the operator to repair.</p> <p>4. ABSTRACT: Instructions: Counter Abstract: Affidavits. If an appellant’s abstract presents instructions as those given for respondent and the latter does not object to them by filing a counter abstract, they will be accepted by the appellate court as correct; and affidavits that they are not those given at the trial will not be considered.</p>

<p>1. NEGLIGENCE: Municipal Corporations: Embankments. The plaintiff sued the defendants to recover for personal injuries sustained by his wife, caused by the negligence of the defendants in failing to guard an embankment and excavation in a public street which had been recently graded. The plaintiff’s wife going home from a grocery store, in the dark, fell down the embankment, which was in its natural state, and was injured. ’Bald, that a city is under no duty to travelers to fence off or otherwise guard portions of streets left in a state of nature.</p> <p>2. -: -: -. A city lawfully exercised its governmental discretion to grade and prepare for use only the wagon roadway in part of the street. It is not reauired to grade and improve the whole space and build sidewalks on it, and therefore is not liable for not having done so.</p>

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

<p>1. NEGLIGENCE: Railroads: Trucks: Invitees. A boy, 14 years old, while waiting on a railway station platform, for his father, who was expected to arrive on an incoming train, leaned against a station freight truck, which was loaded with sacked flour, and it tipped down to the floor catching and breaking his leg. The truck had been provided at each end with a short leg ending in a small wheel, but one of these legs had been broken off two or three months before, leaving that end without support. SeM, that the defendant failed to maintain its station platform in a reasonably safe condition.</p> <p>2. -: -■ — : -. A person has a right to go on a station platform for the purpose of escorting an outgoing passenger or meeting one whose arrival is expected. To such a person the railroad company does not owe the extraordinary care it owes a passenger, but does owe him the duty of ordinary care to mainitain its station building and platform in a reasonably safe condition.</p>

<p>1. TAX-BILLS: Assessments: Frontage on.Streets. The plaintiff sued to enforce the lien of a special tax-bill against the land of the defendants. The defendants’ land did abut on the street, which was paved, but only to the extent of a very small proportion, seventeen feet, of a large tract which was all taxed for the improvement. Held, that our statutes do not contemplate the division for the purposes of a special assessment, of single lots or parcels of land, but the whole tract in so far as it lies within the area of the assessment is subject to thai assessment, if any portion of it abuts upon the street where the improvement is made. ,</p> <p>2. DEFINITIONS: Frontage. The term “frontage” is but an expression of the front foot rule and under such rule no other property than that abutting on the street improved can be asi sessed.</p>

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

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

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

<p>1. JUDGMENTS: Receivers: Appeal: Nunc Pro Tunc Judgment. A judgment was rendered against three receivers of a railway company as such receivers, but by mistake the clerk entered the judgment against them as individuals. It was held that after appeal had been taken and the transcript filed in the appellate court, the trial court had jurisdiction to correct the judgment nunc pro tunc so as to enter is as rendered.</p> <p>2. ASSAULT AND BATTERY: Negro Porter: Passenger. Where a negro porter standing outside coaches of a waiting train makes offensive remarks to a passenger making inquiry as to which coach he should enter and, after some words starts to assault the passenger, when the latter resists and a fight ensues, the carrier is liable in assault and battery.</p> <p>3. -: Damages Actual and Punitive. In an action for assault and battery by a negro porter on a passenger making inquiry as to which car he should enter, $500 punitive damages are not excessive.</p>

<p>1. NEGLIGENCE: Railroad Crossing: Duty to Look Both Ways and Listen. A railroad crossing is a dangerous place and is itself a signal of danger. A traveller approaching it is, therefore, imperatively required by law to look carefully in both • directions, at a convenient distance from the crossing and where the look will be effective, before venturing upon it, if, by looking, a train can be seen. And the duty to look is a continuing one until the crossing is reached. Not only is he required to look but also to listen. He must not venture blindly on the track without first using his senses of sight and hearing, and if, for any reason, his sight is obstructed that is. all the more reason for a greater exercise of his sense of hearing.</p> <p>2. -: -: -: Contributory Negligence. While the statute, Sec. 3140, R. S. Mo. 1909, requires the bell to be rung 80 rods from the crossing and to be kept ringing until the crossing is passed, or the whistle to be sounded at said distance and to be sounded at intervals until the crossing is-reached, and renders the railroad liable in damages for a failure to do so, yet the statute also provides that this will not preclude a showing that such failure was not the cause of the injury, and the rule of contributory negligence is not abrogated. So that even if the statutory signals are not given, if a person by exercising ordinary care could have avoided injury and fails to do so, he cannot recover, since he is guilty of contributory negligence.</p> <p>3. -: -: -: -: Right to Presume Signals Will be Given. It is only where the person about to cross a railroad is paying attention, and can neither see nor hear anything indicating that a train is coming, that he can assume, without negligence, that, if one were coming, the signals would be given. But where a person can see and hear, or can da either, he cannot rely blindly upon any presumption that the signals will be given. He can neither close his eyes nor his. ears, but must use the means of self protection given him.</p> <p>4. -: -1 — : -: -: Unusual Conditions: Foggy Weather: Presumption of Care on Part of Deceased. Deceased was approaching a railroad crossing in an enclosed two wheeled cart travelling at the rate of four miles per hour. He had on a cap with the ear flaps partially pulled down. A glass window in front and one on each side enabled him to see in front and to the right and left. On a clear day for at least 100 feet before reaching the crossing he could see down the track for a quarter of a mile or further. No one saw the collision, and it is not known what deceased did in the way of looking and' listening. There was no wind blowing. A fog prevailed to a varying extent, sometimes heavier, then lighter, and then settling again. It lay in strata, heavier at some periods of the day and in some places than at other periods and in other places. There was nothing to prevent deceased from hearing the train. It consisted of an engine and caboose with 23 cars loaded with coal, comprising a train of 1100 tons going 35 miles an hour, and ran over a trestle the north end of which was 240 feet of the crossing. All witnesses, who were where they could hear the train, heard it easily and distinctly at distances varying from a quarter to three quarters of a mile away and that within a few moments before the crossing was reached. No difficulty was had in locating the place and direction from whence the sound came and the character of the train. Of the witnesses who testified concerning the ability to see the train on account of the fog, two of them were plaintiff’s witnesses, both of whom saw it a quarter of a mile away notwithstanding the fog, one of these saw it as it passed over the trestle. The third was not at a place where he could have seen the train but gave his opinion that it could not have been seen more than 50 yards away. Defendant had two witnesses who saw and heard it a quarter of a mile away, one of them just before it reached the crossing and looking along the same line deceased would have to look to see it. Held, that under these circumstances and this evidence the presumption cannot be indulged that deceased was in the exercise of ordinary care. For what all the witnesses, located more unfavorably than was deceased, heard, he could have heard had he been in the exercise of due care. Where the positive and uncontradicted facts show that if deceased had taken those precautions which the ,law required of him to both look and listen, he would have been aware of the approach of the train, the presumption of due care cannot stand.</p> <p>5. -:-: -: -: -: -: -: -. If, however, the fog obscured his view, this did not relieve deceased of negligence but rather served to increase the degree of care required of him to listen and otherwise satisfy himself that no train was approaching. Unusual conditions demand extra precautions. Ordinary care under normal conditions is not ordinary care under unusual conditions produced by dust, fog, snow and the like. Deceased’s sight and hearing were both good. The train, according to all the evidence was making a great noise. If deceased had listened he could have heard what others heard, and in the presence of the undisputed fact that all others did hear there is no room for the presumption that deceased listened but did not hear and should be relieved from negligence because he failed to hear.</p> <p>6. EVIDENCE: Conflict: Opinion of Witness. Where credible witnesses, having opportunity for observation, testify that a fact exists, no conflict arises from the expression of an opinion to the contrary by another witness when it affirmatively appears that his situation was not such as that he could have observed and formed an opinion concerning the fact about which he attempts to express an opinion.</p> <p>7. -: ———: -. A witness who has sufficient knowledge of the facts and is so situated as to be able to form an opinion, may give that opinion as to the distance an object could be seen, but such evidence is of a weak character as compared to positive testimony on the subject and where the witness is shown not to have been present at the time and place in question so as to have been able to form an opinion on the matter, it will not have sufficient probative force to create a conflict with such other positive testimony. While a witness may testify that certain things could or could not have been seen from one point to another, it must be shown that he was in a position to form an opinion and did form it, and that his statement is something more than a mere guess.</p>

<p>1. PUBLIC ROADS: Appeal: Township Board: Notice. On appeal to the county court from the order of a township board changing a public road, the appellant must give written notice to the appellee 10 days before the county court convenes; and if he does not do so the appellee may move to dismiss the appeal; and whether there is such notice must be shown on trial of the motion.</p> <p>2. MANDAM'US: Discretion. Issuance of mandamus to compel the county court to docket and try a road case appealed from a township board is discretionary with the circuit court and if the record of the county court shows that for any cause, the relator is not entitled to the writ, it will be refused.</p>

<p>1. JUDICIAL SALE: Void Execution: Purchase: Sale Set Aside. An execution was issued on a judgment wherein the plaintiff at the time of its issuance and levy was dead. The writ was levied upon real estate of the defendant which was sold -by the sheriff and bought in by the plaintiff. Before the credit of the bid was made on the judgment and before any deed was made by the sheriff, on, plaintiff’s motion the execution sale was set aside and the writ quashed by the court on the ground that the writ was void. Afterwards plaintiff brought an action on the judgment and defendant set up the sale and purchase by plaintiff and claimed a credit, as a payment on the judgment, of, the amount of plaintiff’s bid. E-eld, that the rule of caveat emptor did not apply and that the sale was properly set aside and the credit of the bid properly disallowed.</p> <p>2. CAVEAT EMPITOR: Void Sales. The rule of caveat emptor at all judicial sales is in force in Missouri; but it does not apply to sales which are void.</p> <p>3. -: Quitclaim Deed: Void Deed: Liability of Vendor. A purchaser at a judicial sale must beware and has no protecting warranty, his purchase being like a purchase by quitclaim deed from an individual. But this does not apply to a void sale, and though one purchasing by quitclaim deed is not entitled to reimbursement if there be no title conveyed, yet he is entitled to a valid deed and if it be void he may ha.vei redress on that account.</p> <p>4. -: Mistake of Law: Independent Action. ' There may be relief on account of the payment of money under mistake of fact, but not in an independent action, for mistake of law, if there is no fraud.</p> <p>5. -: -: -. While one may not have a right of action for mistake of law, in an independent suit, yet if under a void execution sale he makes a purchase, he may go into court in that action and have relief.</p>

<p>1. CHATTEL MORTGAGE: Conversion: Repair: Possession. A sewing machine company sold to a purchaser a machine and took a note, secured by chattel mortgage on the machine for the balance of purchase money payable on demand. All was paid hut balance of $8. The purchaser delivered the machine to the company to be repaired. The company repaired it but refused to deliver back to the purchaser until the balance on the note then past due, he paid. The purchaser then brought , action in conversion for the value of the machine. It was held that the company had the right to hold possession and conversion would not lie.</p> <p>2. -: Possession for Repair: Redelivery. A mortgagee in a chattel mortgage has the legal title after default in payment of the note secured, and is entitled to the possession. And the fact that he obtains that possession for the purpose of repairing the chattel does not deprive him of the right to refuse to redeliver until payment is made.</p> <p>3. -: Demand: Refusal of Possession. A note payable on demand secured by chattel mortgage will be considered to be demanded by the refusal of the mortgagee to deliver possession of the chattel unless the note is paid.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Jos. A, Guthrie, Judge.</p>

<p>Error to Adair Circuit Court. — Hon. Nat. M. Shelton, Judge.</p>

<p>TAX BILLS: Estimate of Cost: Exceeding Estimate. Where the city charter does not limit or restrict the actual cost of a street Improvement to the estimate thereof by the engineer, nor provide that the bills shall be invalid if the esimate is not accurate, the fact that the actual exceeds the estimated cost will not invalidate the tax. Under such a charter or statutory provisions, the estimate is advisory merely. It would be unjust, in such case, to deprive the contractor of the rewards of his work, after he has honestly and faithfully performed his contract, merely because the advice given by the city’s engineer was not accurate.</p>

<p>Appeal from Platte Circuit Court. — Hon. A. D. Burnes, Judge.</p>

<p>1. INJUNCTIONS: Trade Names and Unfair Competition. Trade names differ from trade-marks in that no exclusive proprietary interest in the former is required to maintain injunction against infringement, while it is necessary in the case of a trade-mark. Trade names are divided into exclusive and nonexclusive trade names. The former are protected upon the same principles that trade-marks are. Nonéxclusive trade names are such as are publici juris, open to or exercisable by all persons in their primary sense, but which in a secondary •sen§e have come to indicate the business of a particular trader.</p> <p>2. -: -: Nonexclusive Trade Name in Its Secondary Meaning. Words which, in their primary meaning are not capable of exclusive appropriation as a trade-mark, may, nevertheless, by long use in connection with the business of a particular trader come to be understood by the public as designating the business of that particular trader. And if plaintiff can prove that the name he has chosen has been so exclusively identified with his business as to indicate his business alone, he is entitled to relief against another’s deceptive use of such terms. If he fails in such proof he is not entitled to relief.</p> <p>3. -: -. Unfair competition consists in passing off, or • attempting to pass off, the goods or business of one person as and for the goods or business of another.</p> <p>4. -: -: Evidence. No inflexible rule can be laid down as to what will constitute unfair competition by the unlawful use of a nonexclusive trade name in its secondary meaning. It is always a question of fact. The question in every case is whether or not, as a matter of fact, the name adopted by defendant has previously come to indicate plaintiff’s business and whether the public is likely to be deceived.</p> <p>5. -: -: -: Mere Descriptive Terms. Names which are mere descriptive terms of the business and generic in their nature are not capable of being appropriated. If the name sought to be protected is one which may be used by everyone in an honestly descriptive and nondeceptive manner the court may declare, as matter of law, that there can be no unfair competition in the use of such terms.</p> <p>6. -: -: -: -. But even descriptive terms may by long use become identified in the minds of the public with a particular trader’s business, and in such cases it is unfair competition for a subsequent trader to use them in sucli manner as to pass off his business ^for that of the other. If the name be an odd, unusual, fanciful or striking name, it may be appropriated by a trader even though it be descriptive of the business he carries on. If, for its description, it depends upon a figure of speech or an association of ideas, and is not merely a literal description of the business, it is a name that is subject to appropriation within the limits of the territory . that the business serves. An unusual, novel name, likely to catch the public fancy and stick in the memory is of great value in advertising a business and is protected. Even though it be descriptive of the business, it is not necessary for the subsequent trader to use such terms in such a manner as to give his business the same catchy and attractive name, for it is easy to use descriptive terms in some other honestly descriptive way.</p> <p>7. —'-: -: -: -: Demurrer to Evidence. The question of unfair competition being one of fact, a demurrer ' should not be sustained, where the petition is otherwise sufficient, unless the court can say, as matter of law, that the name sought to be protected is merely descriptive of the business and is so entirely devoid of novelty, originality and striking characteristics as not to be capable of being appropriated as a trade name.</p> <p>8,.-: -: -: -: Name “Furniture Hospital.” The court cannot say, as matter of law, that the name “Furniture Hospital” is so purely descriptive and so usual and common as to be incapable of appropriation, as a nonexclusive trade name with a secondary meaning.</p> <p>9. -: -: -:--: Addition of Other Words. The mere addition of geographic names ' such as "New York,” “Africa,” “Asia,” etc., cannot he declared as a matter of law to constitute such a difference in the names as to make the name so altered free from complaint. Similarity as well as precise identity deceives, and a nice discrimination in names cannot be expected from a busy public. And it is by the adoption of some such addition rendering the name similar, but not identical, that unfair competition is usually attempted to he perpetrated.</p>

<p>Appeal from Jackson Circnit Court. — Hon. Frank G. Jolmson, Judge.</p>

<p>Appeal from Buchanan Circuit Court. — Now. Chas. N. Mayer, Judge.</p>

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

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

<p>1. LOCAL OPTION: Intoxicating Liquors. The defendant was convicted for a violation of the Local Option Law and from that conviction prosecutes this appeal. He was the proprietor of a restaurant and had procured a license from the Federal Authorities to sell intoxicating liquors and was convicted of having sold three pints of whiskey. Helé, that the demurrer to the evidence was properly overruled.</p> <p>2. ELECTIONS: Notice: Statute. It is not necessary under Secs. 7238 and 7240, R. S. 1909, that the notice of an election shall be addressed to the persons qualified to vote at the election.</p> <p>3. EVIDENCE: Hearsay. Where one testifies over the objection of the defendant concerning a conversation that took place with a prosecuting witness out of the hearing of the defendant, it is error, because it is not part of the res gestae, but was res inter alios.</p>

<p>Appeal from Miller Circuit Court. — Ho». J. G. Slater Judge.</p>

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

<p>1. NEGLIGENCE: Automobiles: Frightened Horse. The plaintiffs, who are husband and wife, sued to recover damages for the death of their infant child, which was thrown out of the buggy in which they were riding, when the horse became frightened at the defendant’s automobile. The defendant’s car made a sudden appearance at the crest of the hill on a public road, running at a rapid speed in a cloud of dust, and the horse though accustomed to automobiles, became uncontrollable and the plaintiffs were thrown out of the buggy and the child was killed. Kelcl, that it is the duty of the autoist to use the highest degree of care that a very careful person would use under like circumstances to prevent injury or death to persons on or traveling over such public roads.</p> <p>2. INSTRUCTIONS: Penal Statute. Where an instruction includes Sec. 5425, R. S. 1909, which relates to the penal feature of the statute, it is erroneous as applied to a private conveyance.</p>

<p>LIFE INSURANCE: Mis-statement of Age in Application. Where a life insurance company issues a policy to one who inadvertently made a wrongful statement in the application as to' his age, the application being afterwards corrected and the additional premium paid, and the assets and liabilities transferred to another company, the latter company is bound by the acts of its predecessor and the rights of plaintiff cannot be restricted to the amount of insurance the premium paid would have purchased at the correct age of the assured.</p>

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

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

<p>1. EQUITY: Cancellation of Deed: Suretyship. The plaintiff instituted this action in equity to cancel a certain deed to land, which, is in reality a mortgage executed by the grantor as surety for the payment of a debt of another. Held, that anything that would discharge a surety from personal liability to pay the debt of his principal would discharge his property from a lien securing his contract of suretyship.</p> <p>2. -: -: -. Where a mortgage is given to secure the debt of another, for which the mortgagor assumes the liability of a surety, any change in the form of a debt or the terms of payment, as by renewal, extension of time, or otherwise, not assented to by the mortgagor, will discharge the mortgage, unless the mortgage itself contains provisions authorizing such arrangements to be made.</p> <p>3. -: -: -: Statute of Limitations. An equitable action, prosecuted by the holder of an equitable title, to quiet title is in the nature of a real action which could be barred only by ten years adverse possession, the statute does not begin to run until the dispossession of the equitable holder.</p>

— How. G. H. SkinJcer, Judge. (1) Antecedent or contemporaneous verbal stipulations under such facts as shown in this case are inadmissible to vary or contradict a written contract, Helmrichs v. Gehrke, 56 Mo. 79'; Bank v. Bank, 149 S. W. 495; McDaniels v. United Rep. Co., 165 Mo. App. 678, 148 S. W. 464; Wheless v. Grocery Co., 140' Mo. App. '572,120 S. W. 708.

— Hon. Arch A. Johnson, Judge. (1) The law is, that it is necessary in order to remove the bar of the statute to show, either by proof that the credit was actually made by the owner of the note, or by his direction at a time when the note was not barred, or by more direct evidence that the judgment was by the maker at such time.

— Hon. Arch A. Johnson, Judge. (1) Because this being a suit based in the petition upon a modification of the written contract, and there being an absolute absence of any evidence tending to show a consideration for said modification, plaintiff failed to make out his case and defendant’s demurrer should have been sustained. McFarland v. Heim, 127 Mo. 333; Wear v. Schmelzer, 92 Mo. App. 323; Gratb v. Mound City Roofing Tile Co., 121 Mo. App. 249'; Zerr v. King, 121 Mo.

<p>Affirmance on stipulation, respondent entering remittitur.</p>

<p>1. APPELLATE PRACTICE: Trial Court’s Discretion as to New Trial. It is largely discretionary with the trial court whether or not it will grant a new trial on the ground that the verdict i against the weight of the evidence; and only when such discretion has been clearly abused should it be interfered with.</p> <p>2. -: New Trial: Verdict Against Weight of Evidence: Elements Necessary to Conclusion. On a motion for a new trial on the ground that there is no evidence to support the verdict, to sustain such verdict it is necessary that the evidence should not be contrary to physical fact or so impossible or improbable as to be unbelievable and it must be substantial and possess some probative force when taken in connection with all the facts and circumstances; but all reasonable inferences to be drawn from the facts proven, stand for evidence.</p> <p>3. -: -: -: Trial Court’s Discretion. That a trial court in weighing the evidence for and against the verdict concludes that the evidence for the verdict is so light as to be of no consequences were there no evidence contradictory, does not prevent that court from also finding that the opposing evidence outweighs it and warrants setting aside the verdict on the ground that the evidence does not support it.</p> <p>A. NEW TRIAL: Verdict Against Weight of Evidence: Review. In an action on an insurance policy, the evidence is reviewed and the granting of a new trial by the trial court on the ground that the verdict was against the weight of evidence is sustained.</p> <p>5. -: Evidence Insufficient: Evidence Absent. On a motion for a new trial, where more than one issue was involved in a single defense, the court may find that there was no evidence to support the verdict on .one issue and that the finding on the other was against the weight of the evidence.</p> <p>6. LIFE INSURANCE: Policy Contract: Beneficiary's Rights Under. While a life insurance policy, where there is no special provision to the contrary, confers a vested right upon the beneficiary which cannot be impaired without the beneficiary’s consent by any act of the assured in surrendering, assigning or pledging same, yet a valid right of the insured to surrender the policy for cash without the consent of the beneficiary may be made a part of the policy contract.</p> <p>7. -- — : Wife’s Right as Beneficiary: Statutory Provisions, Sec. 6944, R. S. 190.9, gives no additional rights to a wife as beneficiary under a life insurance policy, but merely protects her under and subject to the provisions of such policy.</p> <p>8. -: Assigning or Pledging Policy: Foreclosure and Enforcement. Where the insured assigned or pledged a life insurance policy in conformity with a provision therefor in the policy, no subsequent ratification or authorization was necessary to enable the assignee or pledgee to foreclose the pledge and enforce the assignment in payment of the secure^ debt.</p> <p>9. -: -: Contingent Interests. Though the insured’s right to surrender a 20 year life insurance policy for cash is contingent before the expiration of the 20 year period, yet an assignment thereof before such time is valid.</p> <p>10. -: -: Formality. Where a life insurance policy was pledged pursuant to a provision therein contained, a written assignment was not necessary, but the mere deposit of the policy as collateral security and its retention by the pledgee with the consent of the pledgor for an existing debt, was sufficient to give the pledgee all the rights of an assignee for the same purpose.</p> <p>11. -: Assignment of Policy: Evidence. Action on a life insurance policy, which the company claimed had been pledged .and assigned to another as collateral security and cashed by the pledgee. Evidence examined and held not sufficient to sustain a finding that the insured did not make a written assignment of the policy.</p>

St. Louis City Circuit Court. — Row. George II. Shields, Judge. (1) In presenting and prosecuting against the estate an application for an appropriation, and at the same time assuming to represent the estate as administratrix, respondent occupied inconsistent positions, and attempted to represent adverse interests; the action of the prohate court on her application was therefore neither final nor conclusive on the creditors. State ex rel.

Louis City Circuit Court. — Hon. Geo. H. Shields, Judge. (1) If the disputed iorn work in the auditorium, which the subcontractor refused to do, was “furring” within the meaning of the contract between the parties, so that he was not justified in quitting his job, hut should have erected the same under his contract, in that event he can recover of the principal contractor, not the reasonable value of his work, regardless of the •contract price, but such pro rata portion of…

Louis City Circuit Court. — Eon. George E. Shields, Judge. (1) The court erred in not sustaining the demurrer to the evidence, because both by the petition and evidence it is shown that the injury resulted not from any exercise of a foreman’s authority, but the act of the foreman in handling the apron — purely an act of a mere workman. English v. Shoe Co., 145 Mo. App. 439, 452; Stephens v. Lbr. Co., 110 Mo. App. 398, 404.

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

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

Louis City Circuit Court. —Hon. William M. Kinsey, Judge. (1) The plaintiff did not perfect his appeal as required by statute in that he did not give an appeal bond with good and sufficient sureties. R. S. 1909, Sec. 7568. (2) The statute authorizes an appeal to be dismissed on motion of the apellee where an appeal bond is insufficient unless the appellant enters into such a recognizance as he ought to have entered into before the allowance of the appeal.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. The note offered in evidence is entirely different from the note declared upon in the following particulars: (1) It is payable at Olive Street Bank; (2) The interest is payable monthly; (3) The note is a compound interest note. And under all the authorities, such a note does not support a petition drawn on a simple interest note with interest payable annually— and the principal note made payable at a stated place.

Louis City Circuit Court.—Hon. Hugo Muench, Judge. (1) The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the evidence. Brands v. Car Co., 213 Mo. 698; Steinhauser v. Spraul, 127 Mo. 562; Chrismer v. Tel. Co., 194 Mo. 189; Epperson v. Tel. Co., 155 Mo. 346. (2) The court erred in giving instruction No. 1 at the instance of respondent. Said instruction is set out in full under heading II of Argument, infra.

— Hon. C. B. Faris, Judge. (1) The demurrer to the evidence should have been sustained, because: (a) Plaintiff had full charge of the pump house and all appliances, including the ladder, and it was his duty to see that it was kept in a reasonably safe condition. He was a vice principal. Forbes v. Dunnavant, 198 Mo. 208; Knorpp v. Wagner, 195 Mo. 662; Herbert v. Perry Co., 107 Mo. App. 297; Steffenson v. The Roehr Co., 136 Mo.

—Hon. James D. Barnett, Judge. Under all the evidence, the court should have directed a verdict for the defendant and the court erred in refusing the defendant’s peremptory instructions offered at the close of the plaintiffs’ evidence and at the close of all the evidence. (A) The evidence failed to show that Hampton gave any order at all, and if so, there was no evidence it was addressed to the decedent. This was a total failure of proof.

Louis City Circuit Court.—Hon. William, M. Kinsey, Judge. The motion in arrest should have been sustained. This being a reference by consent of the parties, the court had no power to set aside the referee’s report, in part, and sustaining it as to part, but should have rejected it as a whole, or affirmed it as such. Clark v. Phillips, 99 Mo. 550; Lingenfelder v. Wainwright Brewery Co., 103 Mo. 578; Kansas City H. P. B. Co. v. Pratt, 114 Mo. App. 643.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The policy provided that assured should not “incur any expense other than for imperative surgical relief at the time of an accident. ’ ’ It also provided: “No action shall lie against the company as respects any loss or expense under this policy unless it sahll be brought by the assured himself to reimburse him for loss or expense actually sustained and paid in money by him after trial of the issue or unless payments…

Louis City Circuit Court. — Son. Charles Claflin Allen, Judge. The court erred in admitting over defendant’s objection, Exhibit A, offered by plaintiff which was a carbon copy of a memorandum drawn up by the witness Crawford several days after the making of the alleged oral agreement between plaintiff and defendant on July 8, 1911.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) At common law no costs were allowed. The right thereto can exist only when provided by statute. And it is a well-established rule of law that such statutes are to be strictly construed against the party claiming under them. Shed v. Railroad, 67 Mo. 687; In Re Green, 40 Mo. App. 491; Baldwin v. Bulware, 82 Mo. App. 324; Jackson County v. Stone, 168 Mo. 577; Watkins v. McDonald, 70 Mo. App. 357; Conroy v. Frost, 38 Mo.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The demurrer to the evidence should have been sustained.

Louis City Circuit Court. — Hon. George C. Hitchcock, Judge. (1) The trial court was right in sustaining the demurrer at the close of plaintiff’s case, as the evidence, oral and written, uncontradicted and .unimpeached, was conclusive that Mr. Keily had resigned. A verdict for plaintiff could not have been rested on any evidence, but would have been based purely on conjecture. Richey v. Woodmen of the World, 163 Mo. App. 235; Newland v. Modern Woodmen of America, 168 Mo.

Louis City Circuit Court. — Ron. Eugene McQuillen, Judge. (1) The distinction between a cause of action founded upon a breach of duty incident to the relation of carrier and passenger and a cause of action against the master for the tort of a servant while acting within the scope of his employment, is well marked and has been consistently observed by the appellate courts of this State.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) If a person cannot read the language in which a contract is written, it is as much his duty to procure some person to read and explain it to him before he signs it as it would be to read it before he •signed it if he were able to do so, and his failure to obtain a reading and explanation of it is such gross negligence as would estop him from avoiding it on the ground that he was ignoarnt of its contents. 9 Cyc.…

Habeas Corpus — Original Proceeding. Statement. — This is an original proceeding instituted in this court through suing out a writ of habeas corpus. There are three of the petitioners who' invoke the writ, viz., William H. Heffron, George Ringler and Oscar Close.

Louis City Circuit Court.—Hon. George H. Shields, Judge. (1)' No negligence of defendants directly caus-' ing plaintiff’s injury was shown, and the demurrer to the evidence should have been sustained as to both defendants at the close of plaintiff’s case. Stanley v. United Ry.

Louis City Circuit Court. — Ron. James E. Withrow, Judge. (1) The reopening of the case after plaintiff bad closed, to permit plaintiff to bring in additional evidence, was an abuse of judicial discretion, when tbe additional evidence sought to be introduced was not newly discovered and might equally well have been introduced before tbe close. Tierney v. Spiva, 76 Mo. 279; Mayor, Etc., v. Burns, 114 Mo. 426; Goodrich v. Railway Co., 152 Mo. 222; Bank v. Brinkerhoff, 110 Mo.

Louis City Circuit Court.—Hon. Eugene McQuillen, Judge. (1) The -trial court erred in refusing to direct a verdict for the defendant, (a) The testimony of plaintiff’s own witness, Murray and the documentary evidence, show conclusively that the defendant in this case was not in existence in the month of October, 1906, and consequently that plaintiff could not have been in its employ at that time, (b) The testimony of plaintiff’s own witnesses, and the documentary evidence,…

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. Where the agent of one party to a contract receives a secret commission from the other party thereto, the enforcement of such contract is against public policy. One who bribes an agent to make a contract for his principal can enforce no rights arising out of said contract against the principal. McClure v. Ullman, 102 Mo. App. 697; De Steiger v. Hollington, 17 Mo.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The court committed reversible error in permitting the plaintiff to show that the machine in question was guarded after the accident. Miniea v. St. Louis Cooperage Co., 157 S. W. 1006; Bailey v. Kansas City, 189 Mo. 510; Schermer v. McMahon, 108 Mo. App. 836; Railroad v. Hawthorne, 144 U. S. 202.

Louis City Circuit Court. — Ron. Daniel D. Fisher, Judge. (1) The issues raised by a denial of garnishee’s answer and the reply, if filed, are the sole issues to be tried. Dodge v. Knapp, 112 Mo. App. 513; Holker v. Hennessey, 141 Mo. 527; Bank v. Dillon, 75 Mo. 380; Swartz v. Riner, 66 Mo. App. 476; Brown v. Gurnmersell, 30 Mo. App. 341. (2) One may be designated in legal proceedings by the name by which he is known, although not his true name.

<p>Appeal from St. Louis City Circuit Court. — How. Charles Claflin Allen, «Pudge.</p> <p>(1) The trust involved is an active trust. Donghy v. Noonan, 176 Mass. 467. Hence, Theodore Demuth Easton, the child born after testator’s death, is a beneficiary, and any children of plaintiff hereafter born, if any there be, will be beneficiaries. Carter v. Long, 181 Mo. 701. (2) A father, receiving a bequest in trust for the maintenance of his children, is bound to reasonably provide for their maintenance so long as they remain members of his household, but that is the extent of his obligation. He is. not required to account for his expenditures, and so long as he provides reasonable support for his family he performs his full duty and is entitled to retain for his own use any surplus -that may remain. The children have no rights except to reasonable support while they remain at home as members of their father’s household. Lewin’s Law of Trusts (12 Ed.), pp. 157, 158, 159; Perry on Trusts, sec. 118, p. 169; Browne v. Pauli, 1 Sim. (N. 5. ) 92; Hadow v. Hadow, 9 Sim. 439 ; Leach v. Leach, 13 Sim. 303; Carr v. Living, 28 Beavan, 644; Hora v. Hora, 33 Beavan, 88. Respondents have become forisfamiliated, that is, have ceased to reside at home as members of their father’s household. Hence, their interest in the trust fund has terminated. Bowden v. Laing, 14 Sim. Ill; Staniland v. Staniland, 34 Beavan, 536; Lewin’s Law of Trusts (12 Ed.), pp. 157, 158 and 150'. Appellant "Wright Johnston Easton, though of age, has continued to reside at his father’s home as a member of his household. Hence, he is entitled to maintenance out of the trust fund. Scott v. Key, 35 Beavan, 291; Lewin’s Law of Trusts (12 Ed.), pp. 157, 158, 159. (3) Respondents, with full knowledge of all the facts, have acquiesced in the trustee’s course of dealing with the trust estate for many years. They should not now be heard to complain of that of which they knew and to which they tacitly assented.</p> <p>(1) The trust created by the will in question is a direct or express trust, and Alton R. Easton, the trustee, acquired no beneficial interest in the trust property. Poster v. Priede, 37 Mo. 37; Chase v. Chase, 2 Allen, 101; Loring v. Loring, 100 Mass. 340; 1 Perrin© on Trusts (3 Ed.), secs. 117-120; Woodruff v. Woodruff, 54 N. Y. App'. Div. 414. (2) Theodore Demuth Easton acquired no beneficial interest in the trust property in question, but whether he did or not is entirely immaterial to the'issues presented herein. Carter v. Long, 181 Mo. 701. (3) The trustee having misappropriated part of the trust property and intermingled the trust moneys with his own, and being insolvent and unable to give a bond, is subject to removal by a court of equity. G-aston v. Hayden, 98 Mo. App. 683; Lowe v. Montgomery, 117 Mo. App. 273; Davis v. Hoffman, 167 Mo. 573; Gartside v. Gartside, 113 Mo. 348.</p> <p>Statement. — The last will and testament of one Alton E. Easton, of the city of St. Louis, contained this clause: “I give and devise to my son, Alton E. Easton, of the city of Sedalia, State of Missouri, the following described real estate in the city of St. Louis,” (describing the property.) “The above described property is left in trust for his children to support and educate them.” The testator died December 11, 1893. At the time of his death, his son, Alton E. Easton, appellant here, had four children, two daughters, Emeline and Hazel, and two sons, Alton E., Jr., and "Wright, all minors at the death of their grandfather. After the death of the grandfather, another son, Theodore, was born to Alton E. Easton. Mr. Easton took charge of the property, improved real estate, and collected the rents thereon, mingling them with his own funds and using them in ordinary family expenses, his five children, parties here, residing with him. In January, 1898-, he filed a petition in the circuit court of the city of St. Louis, under the above caption, making all of his surviving children defendants and asking for authroity to borrow money on the property. Authority was granted. Afterwards and in this same case, he prayed for authority to sell the property. Authority was granted and a sale made at the price of $6500'. Deducting the amount due on the property for the loan, taxes, etc., there remained the net sum of $3124.80, which, on July 8, 1908, he deposited with the clerk or registry of the court,it possibly drawing interest. Prom time to time Mr. Easton submitted reports of his recepits and disbursements, which were approved by the court. In April, 1909, he petitioned the court for leave to withdraw the fund that he might invest it in real estate in Sedalia; he also asked for an allowance for various expenditures and for money for the support and education of his two children, Wright and Theodore, who were living with him. ‘ The application of the father to withdraw the fund and invest it in real estate in Sedalia was denied. Thereupon he filed a petition for leave to invest the fund in approved security. In February, 1910, the daughters Emeline and Hazel, both married, and the son Alton, Jr., filed a petition in this cause in the circuit court to require Mr. Easton, as trustee, to make a report in writing of the property and money received and collected by him as trustee and to account therefor, and charging mismanagement and appropriation and incompetency, as well as failure to make full reports of his receipts and disbursements, and averring that their father had not paid over their share to them or accounted for it, asked that he he required to report his receipts and disbursements during the sixteen years he had controlled the property; that he set forth the names of all persons from whom he had received any rents, interest or other proceeds from the trust estate, giving dates and amounts, and also set out the names of persons to whom disbursements have been made out of the trust fund, as well as the dates and amounts, showing the amounts paid to-each beneficiary, or on their account, with dates of payments; that in connection with such report he be required to file all receipts and vouchers for payments by him, and that on the filing of the account and report the same be referred to a commissioner to examine it, and that he, Alton R. Easton, be removed as trustee and that a reliable trust company be appointed as trustee to take charge of the fund and reinvest it for the use of the beneficiaries of the trust, they claiming to-be of the beneficiaries.</p> <p>In answer to this, Mr. Easton, stating that since the deposit of the $3124.80 with the clerk of the court, he had never drawn any sum therefrom, asked for an allowance out of that fund for the education of his minor son, and a further allowance for the son who is living with him. The court denied this application and entered up an order requiring Mr. Easton to forthwith make a report in detail of his administration of the fund, as requested by tbe three defendants, and overruled bis application for an allowance. Mr. Easton failing to file tbe account as ordered, tbe court entered up a finding that tbe conduct of Mr. Easton as trustee was disapproved, that be be removed as trustee, tbe court appointing another “as trustee” in bis stead. From this Alton R. Easton and bis sons Wright and Theodore, filing motions for new trial, have duly appealed to this court.</p> <p>In tbe course of tbe bearing on tbe application for an accounting and removal, testimony was taken from which it appears that at tbe time of tbe death of tbe testator, bis son Alton R., one of tbe appellants here, was about forty years of age and married. His first wife dying, be remarried. He also bad other children than here named, born of tbe second marriage. Whether this second wife was living at tbe time of tbe trial,, or when tbe two children died, does not appear. Mr., Easton was about fifty-seven years of age in 1911. It further appears that until married, tbe daughters Hazel and Emeline bad been members of their father’s household, bad been maintained by him in tbe ordinary manner of children by their parents; so bad tbe son, Alton, Jr., until, when about twenty years of age, be left tbe home and has since supported himself. Tbe other two sons, Wright, about twenty-four years of age, and Theodore, a minor, are now members of tbe family and household of their father, tbe latter still attending school at tbe expense of bis father. It further appears that Mr. Easton is now and always has been a man of very moderate means; at tbe time of bis father’s death and from that time on has apparently depended on a- salary. He kept no books of bis expenditures on account of bis children but bad accounts of bis receipts. As long as be was deriving any income from tbe property be bad used it for ordinary expenses of tbe family, as tbe family was constituted from, time to time, and for the education of his children.</p>