Volume 18 — Missouri Appeal Reports

Commissions can not be recovered until the agent has performed the entire service for which he contracted. — Story, Agency, sects. 329, 331. If agents introduce the purchaser, or are instrumental in procuring a purchaser they are entitled to their commissions. — Bell v. Kaiser, 50 Mo. 150; Tyler r>. Parr, 52 Mo. 219 ; Fitch, Beal Estate Agency, 155.

<p>Appeal from the St. Louis Circuit Court. — Barclay, J.</p>

<p>Appeal from the St. Louis Circuit Court. — Lubke, J.</p>

Louis Circuit Court. — Lubke, J. It is sufficient if the design is to fraudulently dispose- of a part of the property, or to defraud the plaintiff only. Waples on Att. 22, 59 ; Taylor v. Myers, 34 Mo. 81. The concealment need not be of goods, but may be of money. Powell v. Farrell, 47 Miss. 281.

Appear from Buchanan Circuit Oonrt. — Hon. Jos. P. Grubb, J. The facts are sufficiently stated in the opinion of the court. I. The petition is sufficient. It discloses two estates in the same land intimately connected, sets out the interest of the parties, the value of the timber to the inheritance, its threatened destruction and the insolvency of the defendant.

, Appeal from Buchanan Circuit Court. — Hon. Wm. H. Sherman, J. Statement of case by the court. This controversy grows out of a citation issued by the probate court of Buchanan county to the defendant, Daniel F. Bombeck, as guardian and curator of the plaintiff, Matilda Bombeck, to appear before said probate court and make settlement.

Circuit Court, Hon. John C. Howell, J. Statement of case by the court.

Gr. D. Burgess, J. The facts are sufficiently stated in tlie opinion of the Court. I. The two main points in this case are: (1) The bar of the judgment set up in the answer. (2) Whether defendant as devisee and legatee is liable on the guardian and curator’s bond, on which her devisor and grantor, Robert Gr. Miller, was one of the securities for Andrew J. Harlan, the principal in the bond.

Noah M. Glvan, J. The facts are sufficiently stated in the opinion of the court. I. The answer tendered only the general issue, and matter of justification was not permissible. 1 Chitty’s Pleading (9th Am. Ed.) 500 ; Root v. Chandler, 10 Wendell 112; JDemielc v. Chapman, 11 Johnson 132; Van JBuslcirlc v. Irving, 7 Cowan 35. II.

M. G. Mc-Gregor, J. Statement of case by the court. The plaintiff’s petition stated'that one J. D. Hedges, and certain other parties to the number of 20, or thereabouts, did certain work and labor, as day laborers for H. H. Bryne, a sub-contractor, on the line of railroad then being constructed by defendants’ railway companies. That for the work and labor so performed, time checks were given said J. D. Hedges, et al., by said H. H. Bryne, showing the amount due.

'Silas Wood-son, J. The facts sufficiently appear in the opinion. I. It is only where the parties go to trial before the country, as though the issues tendered by answer were joined, that defendant will not be permitted after trial to take advantage of the plaintiff’s failure to file a reply. Here the case was submitted on the record, the petition and answer and the stipulation as to a part of the facts.

F. M. Black, J. The facts are sufficiently stated in the opinion of the court.

— Hon. -M. G. McGregor, J. Statement of case by the court. This is an action of replevin instituted by the plaintiff, Manila Schooler, a married woman, with whom is joined I. N. Schooler as her husband. The subject matter of controversy is certain household goods, and a cow and calf, alleg’éd to be the property of the plaintiff, Marilla. The suit was brought in a justice’s court, where-the plaintiff recovered judgment.

E. L. Edwards, J. Statement of case by the court. This case was originally instituted by J. Ed. Belch against defendant.

E. L. Edwards, J. Statement of case by the court. In March, 1877, the plaintiff, respondent here, sued out writ of attachment in the Miller circuit court against B. W. Taylor.

Noah M. GrIVAN, J. Statement of case by tbe court. This is an action instituted by plaintiffs on a promissory note made by defendant to them for the sum oí $1,383.36.

Turner A. GrILL, J. Statement of case by the court. The plaintiff, to sustain the issues upon its part, offered evidence tending to prove the following particular facts and issues, to-wit: That plaintiff is a corporation, and a common carrier of freight in the City of Kansas; that on the ,12th day of May, 1881, the plaintiff, in the course of its business, received from the Missouri Pacific Railway company, at its freight depot and warehouse in Kansas City, Mo., three top…

F. M. Black, J. The facts sufficiently appear in the opinion of the court.

<p>1. Appellate Jurisdiction — Appeals—Transfer of Cases to Supreme Court — Real Property — Title.—A case in which the final judgment will determine who is the holder of the rights transmitted’ from one of the primary sources, or from the. common source, of title, “ involves the title to real estate.”</p> <p>O. - A suit in equity to declare a certain deed null and void on the ground that it is a forgery, and to enjoin the enforcement of a judgment in ejectment, alleged to have been fraudulently obtained by reason of such deed, involves title to real estate within the meaning of the constitutional provision concerning appeals.</p>

<p>1. Contract Construed — Mechanic’s Liens — Contractor and Subcontractor. — The contract in this case is construed to give the ■ contractor a right to pay employes of the sub-contractor, irrespective of -whether such employes might have maintained a mechanic’s lien for the work done.</p> <p>2. -Garnishment. — An indebtedness is not liable to garnishment unless it is due as a money demand, unaffected by incumbrances or by conditions of contract.</p> <p>3.--Evidence. — In a garnishment proceeding against a contractor, by a creditor of a sub-contractor under him, his pay-rolls showing the amounts paid by him under contract, for the sub-contractor, are admissible without proving the signatures of the employes who signed them, it being shown that the amounts shown by the payrolls had been actually paid by him.</p>

Louis Circuit Court. — Thayer, J. The court below erred in permitting the respondents to introduce any evidence tending to prove the existence of the two warranties claimed to have been made by appellants, not expressed in their instrument of writing.

Louis Circuit Court, Barclay, J. 'The plaintiff’s knowledge of the approach, oi the train and his failure to get out of its way will prevent his recovery, although the defendant failed to ring the bell and to have a watchman on the lookout. Drain v. R. R., 10 Mo. App. 531; O’ Donnel v. R. R., 7 Mo.

<p>1. Agency — Principal and Surety — Subrogation.—A surety who pays Ms principal’s debt has a right of action against Ms principal for the sum paid, and a right of subrogation to the securities in the creditor’s hands.</p> <p>8, -------Administration — Limitations.—The demand of a surety for reimbursement for money paid on his principal’s account after the latter’s death, must be presented within two years after such payment or it becomes barred by the statute of limitations.</p> <p>S. -Such a demand can not be allowed by the probate court and ordered paid in the final order of distribution after it has become barred by the statute of limitations, although the administator has taken credit for the amount so paid by the surety.</p>

<p>1. Administration — Equity—Jurisdiction—Sureties.—Sureties who pay their principal's debt and neglect to prove the same against his estate until it becomes barred by limitation, can not maintain an action in equity to reimburse them such payments.</p> <p>2. -Limitations.- — The probate court’s jurisdiction in the settle ment and distribution of estates is so far exclusive that a court of equity will not interfere at the suit of a creditor who neglects to pove liis claim and allows it to become barred by the statute of limitations.</p> <p>8. -A court of equity can not exercise its jurisdiction where the effect thereof would be to set aside the bar of the statute of limitations.</p>

Louis Circuit Court.—Horner, J. The instructions asked at the close of plaintiff’s case, being in effect demurrers to the evidence, should have been given. Stamm v. Kuhlman, 1 Mo. App. 396, and cases there cited; Benjamin on Sales, 3ndEd., p. 504 (BooklY, Part II). Plaintiff with knowledge of defect had accepted the property and exercised acts of ownership.

An execution sale will be enjoined where the sale, if made, would cast a cloud on the title of the complainant. Hillard on Injunctions, p. 234; Key v. Mansell, 19 Iowa 305 ; Pixley v. Higgins, 15 Cal. 127; Mechanics’ Banlc «. City of Kansas, 73 Mo. 559 ; 24 Mo. 20; 37 Mo. 228 ; 47 Mo. 474. The appeal should be dismissed. Rev. Stats., sects. 3635, 3636, 3717. An injunction will not lie to restrain a sheriff’s sale. Drake n. Jones, 27 Mo. 428, 433; Kuhn v. McKeil, 47 Mo. 389.'

Where a railroad takes possession of the land of another without payment of damages the owner’s remedy is trespass, and the measure of his damages are those only accruing before the suit is brought.

Louis Circuit Court, Barclay, J. The members of a mutual life insurance company are conclusively presumed to have knowledge of the rules established by its charter, constitution, and by-laws. Walsh v. Insurance Co., 30 Iowa 145. The by-laws and rules of any of these mutual benefit societies are a law unto the members. Red Men v. Schmidt, 57 Md. 98; Knights Golden Rule v. Ainsworth, 71 Ala. 436; 17 C. L. J. 413 ; Toram v. Benev. As so., 4 Pa.

Contracts-such as that sued on are not assignable. Ramey v. Grim, °28 Mo. 310 ; Landen v. McCarthy, 45 Mo. 106 ; Ciarle v. Cable, 21 Mo. 223 ; Leahy v. Dugdale, 27 Mo. 437. This was not a contract of personal trust, and was assignable even without defendant’s consent. St. Louis v. Clemens, 42 Mo. 69; Devlin v. Mayor, 63 N. Y. 8. A subsequent ratification of a change in a contract is equivalent to a previous authority to make it.

Henry P. White, J. Statement of case by tke court. Tkis is a case begun by the plaintiff against tke defendant before tke recorder of tke City of Kansas upon tke following information: State of Missouri, ) County of Jackson, j ' On information, W. J. Strong, city attorney witkin and for tke City of Kansas, county of Jackson and state of Missouri, complains that, on or about tke fourth day of July, 1882, one Bernard Corrigan, being then and there an officer of tke Jackson…

T. 4-Gill, J. Statement of case by the court. This is a suit brought by the administrator of John Howling, on a contract by Dowling with the defendant.

Turner A. Gítll, J. Statement of case by the court. This is a suit brought by plaintiffs to recover judgment against James G. White and James O’Connor, for hardware furnished them, and to enforce a mechanic’s lien against a certain building of appellants, Rozzelle & Spiker, in the construction of which it is alleged said hardware was used.

John K. Cravens, Special Judge. Statement of case by tbe court. This is an action to enforce a mechanic’s, or material man’s lien, and a claim of damages by defendants for failure on the part of plaintiff to deliver the material according to contract. There is no controversy as to the regularity of the steps taken to secure the lien. The whole controversy is as to the' matter of the damages claimed by defendants,- David and George G. Neiswaanger.

Livingston Circuit Court, Hon. Jas. M. Davis, J. Statement of case by the court. This was an action instituted upon the 14th day of August, 1881, in the circuit court of Livingston county, Missouri, to recover the sum of two thousand, seven hundred and sixty dollars damages, alleged to have been caused by the overflow of certain surface water in the years 1880 and 1881, over and upon plaintiff’s land.

Jas. M. Davis, J. Statement of case by the court. This was an action instituted before a justice of the peace in Livingston county, for the recovery of $75 and double damages thereon for the killing of one yearling colt belonging to plaintiff, on the railroad of defendant, on the 28th day of April, 1881.

Joseph P. Grubb, J. The facts sufficiently appear in the opinion of the-court. I. The secondary evidence of the alleged notice-should not have been admitted, especially after the supposed notice was voluntarily destroyed previously by assignee. 2 Phil. Evid. (5th Am. Ed.) side p. 516, top p. 434. II. The judgment of the justice is not a nullity and can not be impeached in a collateral proceeding. Therefore, the court erred in excluding it when offered by appellant.

Jas. B. Gantt, J. The facts are sufficiently stated in the opinion of the court. I. The law malíes provision for certain property to be owned by a school district. Ch. 150 Rev. Stat. Mo. 1879.

John P. ■Steotheb, J. The facts are sufficiently stated in the opinion of the court. I. The plaintiff bases his right to recover upon several acts of negligence, as leaving down the wire fence, the negligent construction of the fence, and the unusual whistling of the locomotive.

H. S. Kelly,. J. Statement of case by the court. The petition is transcribed in the opinion. The suit was brought before a justice of the peace and judgment rendered for plaintiff. Appeal was taken to circuit court where judgment was for defendant. After unavailing steps for new trial, the plaintiff brings the case to this court by appeal.

T. A. G-ill, J. The facts are sufficiently stated in the opinion of the court.

Joseph P. G-eubb, J. Statement of case by the court. This is an action to recover damages for personal injuries. The petition, after the formal averments, states: “That on the 29th day of December, 1881, between Fifteenth and Sixteenth streets, in the city of St. Joseph, on the line of the defendant’s said railway, he hailed a car of the defendant, then in charge of its agent and servant, for the purpose of taking passage on Said car.

Jas. M-Davis, J. Statement of case by tbe court. This is an action for damages growing out of an alleged breach, by defendants, of the following contrtact made between plaintiff and defendants. “This agreement, made and entered into on this-18th day of April, 1879, by and between Thomas Dobbins and .Barnett, Edmonds & Co., witnesseth: The said Dobbins is to furnish at the mills of Barnett, Edmonds & Co., as soon as the water will permit, and the aforementioned logs can be…

<p>1. Appellate Jurisdiction — Adpbals—Equity—Specific Performance. — An action in equity by a vendor to enforce specific performance of a contract to purchase real estate, involves the title to real estate, and is within the exclusive appellate jurisdiction of the supreme court.</p>

<p>1. Landlord and Tenant — Leases—Parol Agreement to Execute a Lease. — A parol agreement to'execute alease for one year ata stated rental, payable in monthly instalments, is not broken by a refusal to execute a lease which imposes terms and conditions not imposed by the law, and of which no mention was made in the agreement.</p>

Louis Circuit Court, B aeclay, J. A married woman can not make a contract. Bauer v. Bauer, 40 Mo. 61; Higgins v. Peltzer, 49 Mo. 152; Musielc ». Dodson, 76 Mo. 624. A contract, made by a married woman and another person can not be enforced by them jointly.

Louis Circuit Court, Horner, J* The judgment establishing the lien is conclusive. Picot ». Signiago, 27 Mo. 125. The. lien having been established as between the sureties and the creditor, has the like effect as between the sureties. The State to use v. Thornton, 8 Mo. App. 27. The right to mechanic’s lien attached to the building in controversy.

Louis Circuit Court, Adams, J, The testimony of Samuel Hermann, attorney for the state in the criminal action against Meysenburg, was incompetent. Revised Statutes of Missouri, § 4017, p. 90; Cross v. Riggins, 50 Mo. 335; Hull v. Lyon, 27 Mo. 570Johnson v. Sullivan, 23 Mo. 434. The books read in evidence, as the books of the Excelsior Distilling Company, were incompetent. They were not identified as such books.

Louis Circuit Court, Barclay, J. Under the law of Missouri, no corporation having such a name as the plaintiff can be organized; and no state has ever yet given extra-territorial force to the laws of her sister state when they were of a character prohibited by the laws of the state in which they were sought to be enforced.

Louis County Circuit Court, Edwards, J. The words in the deed created a condition subsequent upon the performance of which the estate conveyed would be enlarged. For a failure to perform this condition during his life-time, the grantor, or after his death, his heirs, had a right to re-enter and declare a forfeiture. 1 Washburn *451; Messer smith v¿ Messer smith, 22 Mo. 369.

GK H. Burcki-iartt, J. Statement of case by the court. This was a proceeding had in the circuit court of Randolph county, at its March term, 1883, to quash a fee bill issued in the above cause, to collect certain costs against appellant after an appeal had been granted to the supreme court of this state. The motion to quash the execution is as follows : “ To the Honorable G. II.

Gr. H. Burokiiartt, J. Statement of case by the court. The petition in this case contains two counts. The first count sets out the following facts, in substance: That in September, 1882, the defendant Porter was indebted to one John L. Canole in a sum in excess of $216.00, and Canole was indebted to plaintiff in the sum of $216, evidenced by a promissory note.

GI-eo. W ■ Dunn, J. The facts suflB.cien.tly appear in the opinion of the court. I. The record does not show in what township the cow was killed. This was a jurisdictional fact, and without proof of it plaintiff could not recover. State t>. Metzger, 26 Mo. 65; Iba v. JR. JR., 45 Mo. 469 ; Barnett ■». JR. R., 68 Mo. 56. II. The court erred in admitting the town ordinance to be read in evidence.

Geo. W. Dunn, J. The facts sufficiently appear in the opinion of the court. ....

Geo. W. Dunn, J. Statement of case by the court. This is an action for killing plaintiff’s cowin the town of Lathrop. The evidence showed defendant’s track to be straight and the view unobstructed up and down the track for one-fonrth of a mile each way from the point of contact with the animal. Plaintiff ’ s witness, Mrs. Collet, says: “The cow was struck about twenty-'five yards north of the Wabash crossing.

<p>Appeal from Moberly Court of Common Pleas, Hon. G-. H. Burcehartt, J.</p>

H. S. Kelly, J. Statement of case by the court. This is a prosecution, charging drunkenness in office, under section 1642 of the Revised Statutes, instituted ih a justice’s court upon the affidavit alone of a private citizen. There was-filed before said justice no information by the prosecuting attorney of the county. Upon a trial in the justice’s court, the defendant was found guilty. The defendant appealed to the circuit court of Nodaway county.

John C. Howell, J. The case is sufficiently stated in the opinion of the court. The court refused to look beyond the record proper, there being no proper bill of exceptions preserved at the trial. I. The court erred in rejecting the evidence offered by defendant in support of defence set up in answer; and also in instructing that under the pleadings the plaintiff must recover; and also in overruling motion for new trial, and in arrest of judgment.

C. H. S. Goodman, J. This was a suit to recover damages for a hog belonging to plaintiff and alleged to have been driven away and converted by defendant. The evidence for the plaintiff tended to show his ownership and that the value of the hog was twenty dollars, and that it was shipped with others, by railroad, under directions of defendant.

C. H. S. Goodman, J. The facts sufficiently appear in the opinion of the court. I. For all that appears in the statement the animal may have come upon the track, and been injured, at a point where defendant was not by law required to erect and maintain fences. Bates v. R. R., 74 Mo. 60; Johnson v. R. R., 76 Mo. 553 ; Dry den v. Smith, 79 Mo. 525 ; Morrow v. Mo. Pac. R., Sup. Ct. Mo. (not yet reported). II. The evidence is insufficient to support a verdict.

Andrew Ellison, J. The facts sufficiently appear in the opinion of the conrt. I. The court erred in refusing to give plaintiff’s instruction as to limitation. Dillon) s Admr. ». Bates, 39 Mo. 292; Butler v. Lawson, 72 Mo. 227; Reilly «. Chonquette, 18 Mo. 220. Death may be proved by any satisfactory evidence. Hancock v. Ins. Co., 62 Mo. 26; Lancaster v. Ins. Co., 62 Mo. 121. II.

E. L. Edwabds, J. Statement of case by the court: This suit was begun before a justice of the peacé on the following account: “Berry Scott ancLL. M. Bottom, to R. H. Knettle, Dr. “ To balance on threshing machine, $147.72.” . A trial before the justice resulted in favor of defendants. The plaintiff appealed to the circuit court. Upon the trial in the circuit court, the plaintiff testified that in the fall-of 1881 he sold appellant a threshing machine for $800.

C. H. S. Goodman, J. The case is sufficiently stated in the opinion of the court. I. The verdict was against the law and the evidence, and defendant’s motion for new trial should have been sustained. There was no agreement, express or otherwise, at the time the note was given, that it was given and received in payment of the three hundred dollars. II. The court erred in giving instructions for plaintiff.

Jas. B. Gantt, J. Statement of case by the court. In the final settlement of the estate of Kahn & McNeel, of which S. Kahn, surviving partner of said partnership was administrator, the probate court of Yernon county allowed the said S. Kahn, as a credit, the sum of $2,232.81, which the books of the partnership showed S. Kahn had paid into the firm in excess of one-half of the capital of said firm, and, as such excess, was due from McNeel to Kahn at the time of McNeel’s death.

Chas. Gr. Bubton, J. The case is sufficiently stated in the opinion of the court. I. The court erred in granting instructions seven and eight asked by defendant (making liability of defendant depend upon whether his sons followed his directions). This is not law. 1. The principal is liable for the torts of the agent committed within the scope of his agency. 2. The principal is liable for the act of the agent, even if done in a manner expressly forbidden by principal.

F. M. Black, J. Tke facts and statement sufficiently appear in tke opinion of the court. I. There is one exception in the record saved by appellant, which is fatal to the verdict and judgment of the court below, to wit: the failure and refusal of the court to give instruction number three asked by appellant, and which was not supplied by what was contained in number two on bekalf of plaintiffs.

Appeal'from Jackson Circuit Court, Hon. Turnee A. Gill, J. The facts are sufficiently stated in the opinion of the court. I. The fees of a witness cannot be taxed as costs against the losing party in the trial of a cause, unless he necessarily attended the trial under the command of a subpoena or recognizance Sect. 5620. Rev. Stat., Mo. 1879, as amended by acts of 1881, p. 135.

F. M. Black, J. Tke case is sufficiently stated in the opinion of the court. I. What was the contract between plaintiff and defendant, the latter being the gratuitous bailee of the former ?. His legal obligation is to pay or deliver the thing bailed on demand, or render a valid excuse for non-payment or non-delivery. No demand was made here until after failure of the bank. II.

Elijah Robinson, J. Statement of case by the court. On November 6, 1882, plaintiff filed in the county court of Audrain county, Missouri, the following petition, to-wit: ‘ ‘ To the County Court of Atoclrain county, State of Missouri : “Thomas C. Cox states that he is an inhabitant oí Audrain county, state of Missouri.

Geo. H. Burckhartt, J. The facts sufficiently appear in the opinion of the court. I. The court erred in refusing the instructions asked for by defendant. In civil cases the plaintiff must prove his case by a preponderance of evidence. ' Greenleaf on Evidence, sect. 13 (13th Ed). And in actions for damages for negligence, the burden of proof, i\ e., preponderance of evidence, is on the plaintiff.

E. L. Edwards, J. Statement of case by the court. The plaintiff sued defendant for failure and refusal to pay him for pasturage furnished from April 15 to October 9, 1882, for the grazing of sixty head of cattle, at 55 cents per head per month. Plaintiff’s evidence tended to show that he contracted to furnish pasturage for the cattle, for the season, or so long as they did well, at the rate aforesaid.

• Appeal from Boone Circuit Court, Hon. G-eo. H. Burckiiartt, J. Statement of case by the court. Before judgment in the circuit court the above named plaintiffs, Ida M. Nichols and David H. Nichols, dismissed this suit as to them. This statement will, therefore, contain the facts so far only as they concern the remaining parties herein.

R. W. •Fyaw, J. Statement of case by the court. This suit was begun before a justice of the peace on an account for— 343 3-4 pounds of wool at 35 cents;......$120.30 7 sacks................................ 1.70 $122.00 $8.65 13.00 - 21.65 And credited by— ■ Goods............. Cash...............

Andrew Ellison, J. Statement of case by tbe court. This suit was brought to recover the value of a certain cow, alleged to have been the property of plain tiff, and to have been killed by defendant’s cars, on or about the 4th day of November, 1881, in the town of Kirks-ville, in Benton township, in Adair county. The statement contained three counts.

Apepal from Jackson Circuit Court, Hon. F. M. Black, J. Statement of case by the court. This is a suit brought by plaintiff to recover the value of certain freight received at the town of Belton Station, Missouri, by defendant, for shipment to plaintiff at Chillicothe, Missouri.

P. M. Black, J. Statement of case by the court. This is an action to enforce a mechanic’s lien. The petition alleges in substance, that the defendant, E. P. Hinds, is indebted to plaintiffs in the sum of $760.96 for materials furnished by them at the request of and under a contract with said Hinds.

M. G. Mc-Gregor, J. Statement of case by the court. Defendant sold to one George P. Cunningham a tract of land in Jasper county, by the following written contract : “Know all men by these presents that the undersigned, George P. Cunningham, of Jasper county, has this day purchased of William McGuire the following described real estate in Jasper county, Missouri, to-wit: The. east half of section 23, of township 30, range 30, except two acres sixteen rods east and west by…

James M. Davis, J. The facts are sufficiently stated in the opinion of the court. I. The court erred in sustaining the demurrer to the petition and in rendering judgment for the defendant in error.

M. Gf. McGregor, J. The facts sufficiently appear in the opinion of the court.

1. Practice — Measure oe Damages. — In the absence of evidence showing an agreement to pay a particular sum for services rendered, or that the services rendered were reasonably worth that sum, it is error in the court to instruct on the basis of an assumed particular sum as the measure of plaintiff’s recovery. Appeal from Livingston Circuit Court, Hon. E. J. Broaddus, J. Statement of case by the court.

<p>Rule oe Court. — Rule sixteen, of this court, provides as a pen'alty for failure to serve copy of abstract of record and brief by appellant, that the appeal may be dismissed, unless the respondent consents, that the case may be continued. Held, the respondent refusing to consent to continuance, the appeal must be dismissed.</p>

Chas. Gr. Burton, J. Statement of case by the court. In September, 1881, plaintiff bought of defendant a farm in Barton county, Missouri; but, as possession was not to be delivered until March following, a written contract or lease was entered into, by which plaintiff leased the farm back to defendant until March 1,1882.

<p>Appeal from Audrain Circuit Court, Hon. Elijah Robinson, J.</p>

G-eo. W. Dunn, J Statement of case by the court. This suit was begun before a justice of the peace in Clay county, to recover the value of a cow, killed by the defendant’s engine and cars, within the limits of the town of Liberty. f It was alleged, in the statement, that the defendant was operating the railroad of the Hannibal and Saint Joseph Bailroad Company, under a lease from the latter company, and in the circuit court, to which the defendant had appealed from a…

Andrew Ellison, J. Statement of case by the court. This action is based on ■ the following petition: “Plaintiff states that on or about the 15th day of November, 1876, one C. C. Fetters, instituted suit by attachment, in this court for debt against David and Francis McElroy, whereby he sought to recover from the •defendants therein $165.00 and costs of suit; that after-wards at the term 187- of this court, said cause was tried and finally disposed of, and a verdict given for…

Elijah Robinson, J. Statement of case by the court. This was an action instituted in the circuit court of Audrain county, Mo., to recover from defendant the sum of $150, the value of a mule alleged to have been lost in transit while on the railroad of defendant, between the town of Mexico and the city of St. Louis, Mo., on the 9th day of March, 1881, by reason of defendant negligently failing to furnish plaintiffs with a car of sufficient strength and durability in which to…

Geo. W. Bunn, J. The facts are sufficiently set forth in the opinion of the court. I. The injury sued for occurred at a public road crossing, and as it is admitted that the whistle was sounded, recovery can only be had for actual negligence. McPheeters v. R. R., 45 Mo. 22. II.

«. Appeal from Clinton Circuit Court, Hon. Geo. W. Dunn, J. Statement of case by the court. This suit was tried on the following petition: “Plaintiff states that defendant, by his promissory note hereto annexed, dated May 4, 1876, promised, for value received, to pay plaintiff one hundred dollars, six months after the date thereof, with interest from date at the rate of ten per cent, per annum.

GI-eo. W. Dunn, J. ■ ' Statement of case by the court. This is an action to recover damages for a personal assault and battery committed upon the plaintiff by one of defendant’s conductors, and for indignities and in-suits connected therewith. The plaintiff is a minor, and sues by his next friend. The facts, as alleged in the petition and established at the trial, are substantially as follows : The plaintiff, a minor, was attending college at Liberty, Missouri.

<p>Apeeal from Lafayette Circuit Court, Hon. John E. Ryland, J.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

Elijah Robinson, J. • The facts are sufficiently stated in the opinion of the court. I. Gregory’s garnishment was valid. It was not necessary for the constable, in garnishing the insurance company, to declare, at the time of summoning it, that he attached the debt in its hands that it was owing Martin. Section 467 Rev. Stat. 1879; Sections 2543-4->.5-6, and 3922, lb. II.

John P. Strother, J. Statement of case by the court. Tin's is a proceeding under the statutes to condemn a portion of defendant’s property; the record stating that a plat was introduced, “ which was admitted to be a correct plat of the city of Sedalia, and the land of the defendant, over which the railway is located, and the adjoining lands, which showed that the town or city of Sedalia was laid out in town lots up to and adjoining the premises of the defendant, and that…

Noah M. Givan, J. Statement of case by the court. This suit is brought upon a contract by which defendant employed the plaintiff as a real estate broker to sell or to find and send to defendant a purchaser for the latter’s farm of 120 acres for the price and sum of $3,600. In the form of answers to questions, in the contract, the farm is minutely described by the defendant.

<p>Appeal from Randolph Circuit Court, Hon. G-eo. H. Burcki-iartt, J.</p>

John P. Steothee, J. The facts sufficiently appear in the opinion of the court. I. To entitle plaintiff to recover it was necessary for him to show that the killing of the horse resulted from defendant’s negligence, after discovery of the animal on the track. Wallace v. JR. JR., 74 Mo. 594. The mere fact that the animal was killed on the track raises no inference of negligence. Ibid. II.

<p>Affirmance. — There being no statement, brief, or assignment of error in the cause before us (but of a “ se.eond suit ” not in the record), we affirm the judgment..</p>

John P. Strother, J. Statement of case by the court. This suit is brought to recover damages sustained by plaintiff on account of the conversion by defendant of certain described cattle, alleged to be the property of plaintiff.

G-eo. W. Dunn, J. The facts sufficiently appear in the opinion of the court. I. The statement does not aver facts sufficient to constitute any cause of action, ijnder section 809, Revised Statutes, Missouri, 1879. It cannot even be inferred from the statement that the killing was occasioned by failure of defendant to fence. Bates v. R. R.. 74 Mo. 60; Schulte v. R. R., 76 Mo. 824; Asher r>.

Appeal 'from Lafayette Circuit Court, Hon. John P. Strother, J. Statement of case by the court. The plaintiffs are real estate agents and sued defendant for one hundred dollars commission alleged to have been earned by them in negotiating a sale of real estate, belonging to defendant in Lexington, Mo., to Mrs. Ada Young.

E. L. Edwards, J. The facts are stated in the opinion. I. H, as respondent alleges in her petition, the consideration for the notes and deed of trust was the suppression of a criminal prosecution, and the contract, into which she vohintarily entered, was opposed to public policy, then she is in no condition to ask affirmative 'relief from a court of equity. In such cases courts of equity uniformly refuse to interfere.

<p>•Rule oe Court, etc. — Appeal dismissed for failure to comply with rule fifteen of this court, and of the requirements of the statute.</p>

G-eo. W. Dunn, J. Statement of case by the court. This is an action for damages on account of the killing of plaintiff’s horse, in Clinton county, by reason of the alleged negligence of the defendant’s servants and employes in operating and running its locomotives and cars.