Volume 180 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. George C. Hitchcock, Judge.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) The bond sued on was one of indemnity and as there was no evidence of the payment of any money by respondents or that they were damaged, they could at ‘most, recover only nominal damages. Walker v. Deaver, 79 Mo. 664; Hunt v. Marsh, 80 Mo. 396; Kellog v. Malin, 62. Mo. 433; Burén v. Hubbel, 54 Mo. App. 617; Bartlet v. Tinsly, 175 Mo. 329.

— Eon. W. N. Evans, Judge. (1) Under the law, failure or refusal to execute the notes tendered according to the contract, matured the obligation to pay the full amount subscribed by defendant and gave appellant a legal right to sue. C. Aultman v. Daggs, 50 Mo. App. 280. (2) The notes . tendered were in strict compliance with the terms and conditions of the contract.

<p>Appeal from Greene County Circuit Court. — Son. Guy D. Kirby,' Judge.</p> <p>(1) The unlawful use or taking of property cannot be set up as a defense in an action on a special tax bill. Village v. Borden, 94 111. 26; Holmes v. Village, 121 111. 129,13 N. E. 540; Hunerburg v. Village, 130 111. 156, (22 N. E. 486); Maywood Co. v. Village, 29 N. E. 704; Jackson v. Smith, 22 1ST. E. 432; Palmer v. Stumph, 29 Ind. 329; McGill v. Bruner, 65 Ind. 421; Henderson v. Railroad, 78 N. Y. 423; Moore v. City of Albany, 98 N. Y. 396. (2) A substantial compliance with the ordinance providing for the improvement is all that the law requires, and a slight variance of a few inches in constructing the sidewalk will not invalidate the bill. Lowell v. Hadley, 8 Met. 194; Town and Land Co. v. Knowl (Ky.), 55 S. W. 205; Cole v. Shrahka, 105 Mo. 303; Johnson v. Duer, 115 Mo. 366. (3 If a part of the work has been done outside of the provisions of the ordinance and such portion is not a proper charge because thereof, the erroneous charge may be omitted from the tax bill and a judgment rendered for the balance, for the mere fact that part of the charge is unlawful will not render the tax bill void. Boonville, ex rel. v. Rogers, 125 Mo. App. 142; Ernst v. City of Springfield, 145 Mo. App. 109; Johnson v. Duer, 115 Mo. 366; Walsh v. Bank, 139 Mo. App. 648; Nennan v. Smith, 60 Mo. 292; Bank v. Arnoldia, 63 Mo. 229; Neill v. Ridge, 220 Mo. 255, 116 S. W. 619; Joplin, ex rel. v. Freeman, 125 Mo. App. 717; Haag v. Ward, 186 Mo. 349; Perkinson v. Sckaake, 108 Mo. 255; Steffen v. Fox, 124 Mo. 635; Bnrrongli of Athens v. Carmer, 32 Atlanta 422; Webb City, ex rel. v. Aylor, 163 Mo. App. 165; Joplin v. Dillion, 61 Mo. App. 217.</p> <p>(1) The law pertaining to construction of sidewalks must be strictly construed and strict compliance by the contractor is required. Distinction must be made between those matters which effect the substantial rights of the parties and those which are formal and directory. Cole v. Skranka, 105 Mo. 309. (2) If in any material respect the ordinance of the city bearing upon the question involved had been disregarded by the city authorities or the plaintiff, his suit or his tax bill could not be maintained. Cole v. Skranka, 105 Mo. 309. (3) There is no separable portion in the sidewalk or tax bill. K. C. v. O’Connor, 82 Mo. App. 664; Addison on Conts., Sec. 299-300; 2 Cheety on Conts. (11 Ed.), 973. (4) Defendant admits there was a trespass. The city had ordered the walk constructed on the street and it was partly constructed on plaintiff’s property. The contractor must look to the city for his pay for work not paid for if the fault or mistake was made by the city. Johnson v. Duer, 115 Mo. 382.</p>

<p>Appeal from Greene County Circuit Court. — Hon. Alfred Page, Judge.</p> <p>(1) The relation of landlord and tenant existed 'between plaintiff and defendant and the defendant • John J. Schneider as trustee for the co-partnership •could have defended, or the defendants as a co-partnership are entitled to defend and prosecute their -counterclaim. Geer v. Zinc Co., 126 Mo. App. 173; Roth Tool Co. v. Champ Spring Co., 93 Mo. App. 537; Plines v. Ecker, 34 Mo. App. 650; American Central Ins. Co. v. Railroad, 74 Mo. App. 89; State ex rel. v. Allen, 124 Mo. App. 476; Green v. Conrad, 114 Mo. ■655; Scharff v. Southern Illinois Construction Co.,'115 Mo. App. 157. (2) The evidence introduced and admitted by the court'entitled the defendants to have the issues submitted to the jury. Roth Tool Co. v. Champ-Spring Co., 93 Mo. App. 537. (3) The court erred in peremptorily instructing the jury to find the issues for the plaintiff in the sum of $360 and the possession of the property, and to find the issues for the plaintiff on. ■defendants’ counterclaim. The court invaded the province of the jury when it gave the peremptory instruction. Kroge v. Modern Brotherhood of America, 12.6 Mo. App. 693; Gates, Ad’m. v. Nickell, 42 Mo. 169; Benefit Association v. Swenson, 49 Mo. 449; Corbitt v. Mooney, 84 Mo. App. 645; Lederer v. Morrow, 132 Mo. App. 438; Dawson v. Wombles, 111 Mo. App. 532.</p> <p>(1) A claim of a co-partnership cannot be off-set .■against a claim of a creditor of one of the individuals -.of that co-partnership. Finney v. Turner, 10 Mo. 208; Lamb v. Broskie, 38 Mo. 51; Weil v. Jones, 70 Mo. 560; Payne v. 0 ’Shea, 84 Mo. 129; Bagnell T. Co. v. Railroad Co., 180 Mo. 421; Cale v. Armour, 153 Mo. 350; Huston v. Tyler, 140 Mo. 264. (2) Tbe assignment of a written lease, or the consent to such assignment cannot be shown by paroi, but the evidence thereof must be in writing. Nally v. Reading, 107 Mo. 350; Teifenbrun v. Teifenbrun, 63 Mo. App. 253. (3) The whole contract by which John J. Schneider took title to the lease is conclusively presumed as a matter of law to have been embraced in the written assignment thereof, and in the written consent thereto executed by plaintiff’s decedent. Dexter v. MackDonald, 196 Mo. 373.</p>

— Ron. Carr McNatt, Judge. (1) The plaintiff had the right under the statute to have the court consider the “circumstances of the parties and nature of the case, ’ ’ and to make such order as to the court seemed reasonable for the maintenance of the child at the time when the divorce was granted.

<p>1. STATUTE OF FRAUDS: An Agreement that was held Not Within. Defendant conveyed by warranty deed a piece of real estate to plaintiff together with a building thereon covered by a fire insurance policy, which contained a provision requiring the insurer’s consent to any assignment thereof. Possession was immediately given. An agreement made by plaintiff at the time of the trade that he'would procure the insurer’s consent to an assignment of the policy ftM not within the Statute of Frauds.</p> <p>2. PLEDGOR AND PLEDGEE: Liability of Pledgee. Defendant conveyed by warranty deed certain property, receiving as part payment a note secured by deed of trust and in addition as security plaintiff deposited with him an insurance policy which covered a building on the real estate, which policy defendant had assigned to plaintiff promising to secure the company’s consent therefor, which by the terms of the policy was necessary. Held that it was incumbent on the defendant to procure the consent as agreed and that he was liable for any damages resulting from his failure to do so.</p> <p>3. PLEDGES: Liability of Pledgee. If through a pledgee’s negligence or omission the collateral is lost, he is liable to the pledgor for any damages resulting.</p> <p>4. CONTRACTS: Agreement .to Procure Assignment of insurance Policy: Liability. .Where defendant upon conveying certain land on which was a building covered by a fire insurance policy which was assigned to grantee and which required insurer’s consent to such assignment, agreed that he would procure such consent, he was liable to the grantee for the amount of the policy, the building having burned without such consent having been obtained.</p> <p>B. PRINCIPAL AND AGENT: Ratifying Agent’s Acts: Liability. A principal is liable for the acts of his agent which he ratifies.</p>

— Hon. Alfred Page, Judge. (1) The petition is defective in not averring a knowledge of and a reliance upon the reward as a consideration for the services of respondent. Smith v. Vernon County, 188 Mo. 515. (2) The court erred in giving plaintiff’s instruction numbered 1 and refusing defendant’s instruction numbered 10. Jenkins v. Clopton, 141 Mo. App. 74; Miller v. Mo. & Kan. Tel. Co., 141 Mo. App. 462; Mead v. Brotherton, 30 Mo. 201; Greer v. Parker, 85 Mo. 107.

<p>1. NEGLIGENCE: Railroads: Interstate Commerce: Mixed Train: Brakeman. Plaintiff was a brakeman on a freight train which ran between points in Missouri, but carried one or more cars destined for another state. He was injured while assisting in switching some of these cars at a station. It was held that he was engaged in interstate commerce.</p> <p>2. -: Right of Action: Federal Statute: Exclusive. Where a railway employee is injured while engaged in interstate commerce his right of action is exclusively under the Federal Employer’s Liability Act.</p> <p>3. PLEADING: Amendment: Law to Law. When the cause of action stated in the petition is under the common-law or a state statute, and not under the Federal Employer’s Liability Act, he cannot amend by stating a cause of action under the latter act without changing from law to law, and that cannot be done.</p> <p>4. -: Cause of Action;: State Statute: Common Law. Evidence: Variance. Where the facts pleaded constitute a cause of action under a state statute, or the common-law and not under the Employer’s Liability Act, bur the evidence discloses a cause under the latter act, yet, as there is a fatal variance, there can be no recovery.</p> <p>5. -: Motion in Arrest and New Trial: Demurrer to Evidence: Practice. If defendant’s motion for new trial and in arrest make the objection that no recovery can be had on a cause of action not stated in the petition and a demurrer to the evidence is also asked; the point is sufficiently saved for appeal.</p>

<p>1. NEGLIGENCE: Assumption of Risk: Contributory Negligence. Plaintiff was employed in helping to take down an ice house. While standing on the roof in the valley between the sloping roofs of two adjacent rooms, the plate on which he was standing broke, throwing him to the ground and injuring him. Held, that he could not be charged with contributory negligence as matter of law unless .the building was admittedly so clearly and obviously dangerous that a reasonable man would not have attempted to go upon it to take it down.</p> <p>2. -: -: Assurance of Safety. Plaintiff was eighteen years of age, reared on a farm and had had no prior experience in wrecking buildings. Defendant’s president superintending the work of wrecking the ice house was a man of twenty years experience in that work. The plate on which plaintiff stood broke because of its decayed condition. This condition was known to defendant’s president and was easily observible from the inside of the building. Its condition was unknown to plaintiff and he was never in a place where he could have discovered its decayed state. Although defndant’s president knew of its condition, he not only took no steps to remedy the situation, but he assured plaintiff that the place was safe. Plaintiff, unaware of the defect, relied upon .the assurance of safety and was injured. Under such circumstances the master is liable, and cannot escape on the ground that plaintiff assumed the risk.</p> <p>3.--: -: -: Inherent Danger. The danger to plaintiff arose not from any danger inherent in the nature of the work, that is, from the general liability of the building to fall, but from a defective condition at one place, known to defendant, and unknown to plaintiff; and defendant, without remedying the defect, assured plaintiff -it was safe. With that knowledge, it was defendant’s duty to furnish plaintiff with a place to work as safe as the nature of the work would permit. And by assuring plaintiff it was safe, the ease was no longer in the domain of assumption of risk as matter of law.</p> <p>4. -: -: -: Expression of Opinion: Lapse of Time Between Assurance and Complaint. Evidence as to assurance of safety examined and Iveld to be more than mere expressions of opinion that the place was safe. Nor were they so general as not to apply to the place where defendant fell. Nor was the effect of the assurance destroyed by the interval of time that elapsed between the giving of the assurance and the breaking of the plate because the progress of the work had not changed conditions.</p> <p>5. PLEADNG: Petition: Sufficiency. The petition is not open to the charge of insufficiency because it failed to allege that plaintiff could not have discovered the defective condition of the plate by ordinary care. The petition charged that plaintiff did not know of the dangerous condition, that defendant did know of it and assured plaintiff it was safe, and plaintiff relied thereon. Under these circumstances plaintiff was not bound to search for danger.</p> <p>■6. VOIR DIRE: Examination of Prospective Juror. It is not error in the examination of jurors on their voir dire to ask them a general question as to their connection with indemnity insurance companies provided it is asked in good faith, where an indemnity company is defending the case and the name of the particular company has not been disclosed.</p> <p>7. EVIDENCE: Asking as to Indemnity Insurance'. It is error to ask a witness if the defendant carries indemnity insurance unless the question is a pertinent one under the issues. In this case one of the issues was whether the defendant was doing the work. The fact that it took out indemnity insurance covering the men engaged in this particular piece of work would be some evidence that it was doing the work. The question, therefore, was not error.</p> <p>8'. VERDICT: Excessiveness. The evidence in this case examined and the verdict is held not to be excessive.</p>

— Hon. Kimbrough Stone, Judge. (1) The facts in this case were for the consideration of the jury, as in any other case. 28 Cyc. 390; White v. Railroad, 44 Mo. App. 540; Zumwalt v. Railroad, 71 Mo. App. 670; Clason v. Milwaukee, 30 Wis. 316; City of Austin v. Cemetery Ass’n, 28 S. W. 528. (2) The ordinance under which the tax hills in question were issued is void as being unreasonable.

— Hon. H. B, Shain, Judge. (1) Although a principal is bound by his agent’s acts when he has clothed his agent with apparent authority, he is not responsible for the acts of the agent in matters in which he has not clothed him with the appearance of authority, or for the appearances of authority which he himself did not cause. 31 Cyc., Principal and Agent, 1205 and 1206; Figueira v. Lerner, 65 N. Y. S. 293; Mitchem v. Dunlap, 98 Mo. 418.

— Hon. C. A. Galvird, Judge. (1) Matters bearing upon the execution, the interpretation, and the validity of a contract are determined by tbe law of the place where the contract was made. Thompson v. Traders Ins. Co., 169 Mo. App. 12.

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

— Hon. Charles H. Mayer, Judge. The court clearly erred in refusing to peremptorily instruct the jury to find for defendant. Long v. Moon, 107 Mo. 334; Kipp v. Oyster, 133 Mo. App. 711; Fink y. Mo. Furance Co., 82 Mo. 276; Gayle v. Mo. Car & Foundry Co., 177 Mo. 427. The rule res ipsa loquitur does not apply because the plaintiff pleaded specific acts of negligence.

— Hon. Walter A. Powell, Judge. (1) No joint action could be maintained against both appellants as joint tort-feasors. Martinowsky v. Hannibal, 35 Mo. App. 70; Stanley v. Union Depot Company, 114 Mo. 606. (2) There was no substantial evidence to sustain the negligence charged against this appellant; in fact, there was ño evidence upon which to submit the case to the jury. Spiro v. Transit Co., 102 Mo. App. 250; Gunley v. Railroad, 104 Mo. 211; Lionberger v. Pohlman, 16 Mo.

<p>1. RAPE: Damages: Evidence. In a civil action, although founded on the alleged commission of a heinous crime, the plaintiff is not required to prove the basic charge beyond a reasonable doubt, but is required to support the charge by substantial evidence, which if accepted by the triers of fact, would justify the conclusion, as a reasonable inference, that the crime has been committed as alleged.</p> <p>2. EVIDENCE: Uncorroborated: Rape. While our courts sanction the rule that the charge of rape, because of the nature of the crime, may be sustained by the testimony of the woman alone, they analyze her testimony with care, and, if it be .found inconsistent with physical law or human nature, do not hesitate to reject it as unworthy of belief.</p> <p>2. -: -: -: Disclosing of Assault. The fact that a woman does not disclose the assault within a reasonable time is a circumstance bearing upon the plaintiff’s credibility, and the general merits of her case, that was proper for the jury to consider.</p>

— Ron. A. A. Whitsett, Judge. (1) An instruction should authorize a finding of negligence, only when it specifies the act which the jury is to find the party committed and which act constitutes negligence. Duerst v. Stamping Co., 163 Mo. 607-624; Allen v. Transit Co., 183 Mo. 411-435; Schaaf v. Basket & Box Co., 151 Mo. App. 35; Sommers v. Transit Co., 108 Mo. App. 319.

— Eon. Thos. J. Seehorn, Judge. The court erred in not instructing the jury, at the close of all the evidence, to find the issues in favor of the defendant, appellant herein, and requested by the appellant. Rice v. Wood, 113 Mass. 133; Lynch v. Fallon, 111 R. I. 311; Fuller v. Dane, 18 Pick. 472; Everhart v. Searle, 71 Pa. St. 256; Altee v. Fink, 75 Mo. 100; Robinson v. Jarvis, 25 Mo. App. 425; De-Steiger v. Hollington, 17 Mo. App. 382; Chapman v. Currie, 51 Mo.

— Ron. Walter A. Powell, Judge. While the trial court has a wide discretion in setting aside a judgment taken by default, still if on the face of the record there is no defense stated in the motion or a total failure of diligence on the part of the defendant or his attorneys is shown, the appellate court will reverse the order of the trial court in setting aside the judgment on the ground that such order is an abuse of its discretion and unjust to the innocent and diligent…

— Eon. Walter A. Powell, Judge. (1) An appeal lies from .the order setting aside the judgment. Car & Ice Co. v. Kemper, 166 Mo. App. 613; Curtis v. Bell, 131 Mo. App. 253; Miller v. Crawford, 140 Mo. App. 711; Harkness v. Jarvis, 182 Mo. 231. (2) A motion to set aside a judgment by default must state facts which show both a meritorious defense and due diligence. If it fails in either of these respects, it should be denied.

— Hon. Fred Lamb, Judge. (1) There was no negligence shown on the part of the defendant under the first ground of negligence. Williams v. Railroad, 233 Mo. 666 y Boyd v. Harris, 176 Pa. 484, 35 Atl. 222; Elliott v. Railroad, 204 Mo. 1; Coin v. Lounge Co., 222 Mo. 488. (2) There was no negligence shown on the part of the defendant under the second ground of negligence. Shields v. Railroad, 87 Mo. App. 637; Boyd v. Graham, 5 Mo. App. 403 ; Adams v. Ins. Co., 76 Pa.

— Mon. M. B. Sham, Judge. (1) A municipal corporation is not liable for injuries from mere general slipperiness of its crossings, occasioned by recent fall of rain or snow. Reno v. St. Joseph, 169 Mo. 642; Warren v. Independence, 153 Mo. 593; Quinlan v. Kansas City, 104 Mo. App. 616; Reedy v. Brewing Ass’n., 161 Mo. 523; Bonkey v. St.. Louis, 219 Mo. 37. (2) Plaintiff’s own evidence shows her to be guilty of such contributory negligence as to preclude her recovery.

Appeal' from Caldwell Circuit Court. — Hon. A. B. Davis, Judge. (1) The company has discharged its full duty ‘ under the law when it erects and maintains in good repair a cattle guard that is as perfect and well adapted' to the purpose of turning stock as it is practicable to-make it, taking into consideration the safety of the-traveling public and the safe and prudent operation of the road.

<p>Appeal from Jackson Circnit Court. — Hon. Thos. J, Seéhorn, Judge.</p>

— Hon. B. G. Thurman, Judge. (1) A contract for the exchange of land for land or other things than money, is within the Statute of Frauds governing the sale of land, and moreover, if a part of a contract is within the Statute of Frauds, the whole is governed by it. R. S. 1909, sec. 2783; Wolfshill v. Wells, Admr., 154 Mo.' App. 302; Insurance Co. v.Bloomfield, 141 Mo. App. 421; Beckham v. Mepham, 97 Mo. App. 161; Andrews v. Broughton, 78 Mo.

<p>INTOXICATING LIQUOR: Local Option: Sale by Clerk: Consent. On a charge of selling intoxicating liquor without a license and in violation of the local option law, evidence that defendant was a druggist and that the sale was made in his absence by his clerk without a prescription and against his instructions. It was held that there was no evidence that the defendant knew of or authorized or consented to the sale.State v. Crawford, 151 Mo. App. 402.</p>

<p>1. MASTER AND SERVANT: Negligence:' Risks: Causal Connection Between Negligence and Injury. In a suit aga.inst .the master for negligence in furnishing a servant a defective, oi unfit tool with which to work, it is necessary to allege and prove a causal connection between the injury and the negligence of the master.</p> <p>2. -: -: -: Where There Are Several Possible Causes. If the injury might have resulted from more than one cause, for only one of which the master is liable and the others he is not, it is necessary for the servant to prove that • the injury arose from the cause for which the master is liable. Neither the court nor the jury can guess at which cause produced the injury.</p>

— Hon. Arch A. Johnson, Judge. (1) A verdict of tbe jury, if inteligible and of clear meaning, will not be set aside on account of mere imperfections or irregularities. Ryors v. Prior, 31 Mo. App. 555; Gurley v. O’Dwyer, 61 Mo. App. 348; Musser v. Adler, 86 Mo. 450; Purver v. Koontz, 138 Ind. 252; Sbaeffer v. Railroad, 98 Mo. App. 445.

— Eon. Carr McNatt, Judge. (1) The jury after hearing all the facts as to the extent of the fire, and the condition of the building immediately after the fire, were competent to pass on the question as to the amount of damage done by the fire. The testimony elicited relative thereto invaded the province of the jury. Taylor v. Railroad, 185 Mo. 239, and cases cited. (2) The question in the case was what damage was done to the building by the fire.

— Hon. Guy D. Kirby, Judge. (1) The loss insured against in this case is loss-of wages — not loss of income, as plaintiff contends. ITowe v. Provident Fund Soc., 34 N. E. 832; Bean v. Travellers’ Ins. Co., 29 Pac. 1114. (2) Wages means compensation given to a hired person for his or her services. 8 Words and Phrases, p. 7369; Bovard v. Railroad, 83 Mo. App. 498; Pnllis Iron Co. v. Boemler, 91 Mo.

Appeal - from Greene Circuit Court. — Eon. Arch A. Johnson, Judge. (1) The petition does not state a cause of action. It nowhere charges a negligent act, nor charges an act to have been done negligently or carelessly. Thurmond v. Ash Grove Co., 125 Mo. App. 73; Rawson v. K. C. Co., 129 Mo. App. 613. (2) The petition is not bottomed on the humanitarian doctrine, nor does the evidence warrant a recovery on such theory. Grout v. Railroad, 125 Mo. App. 552-561.

Division Number Two. — Hon. Arch A. Johnson, Judge. (1) Public work for wbicb tax bills are issued to compel tbe citizen to pay for improvements in front of bis property are proceedings in invitum, purely statutory, and are to be strictly construed and if there is any fairly reasonable doubt concerning tbe existence of tbe power to tax tbe citizen disclosed by tbe proceedings it will be deemed not to bave been granted.

<p>3.. EQUITY: Probate Courts: Discovery of Assets: Circuit Court: Jurisdiction. A few days prior to a man’s death he sold his saloon for $4800 and endorsed the check received in payment, to his wife, telling her “to pay some debts,” and a debt to her brother and the balance she was to have in payment for services rendered to him. On his death, she, as executrix of the will, filed a settlement of the estate taking credit with general debts paid by her and claimed in her answer that she was entitled to $400 out of the money thus received, as her statutory dower. A creditor of the deceased had his claim allowed in the probate ■court and begun proceedings in that court to discover assets -claimed to be concealed, or' withheld by the widow. The creditor dismissed that proceeding and begun this action in equity in the circuit court to discover assets and charge them with the payment of his claim. It was held that the latter court had no jurisdiction.</p> <p>3. -: -: -: -. The circuit court will not take jurisdiction in cases where relief may be had in the probate court; except in those instances involving cases of equitable cognizance.</p> <p>:3. -: Jurisdiction: Withholding Assets: Equity. The probate court has exclusive jurisdiction in all cases involving the question of concealment or wrongful withholding of assets of an estate, except in instances of purely equitable cognizance.</p>

— Eon. Chas. H. Mayer, Judge. (1) Instruction No. 1, in its broadest language, told the jury that the city was negligent if the street in question was ‘ ‘ dangerous and unsafe. ’ ’ The city is only required to keep its streets reasonably safe. Wallis v. Westport, 82 Mo. App. 526; Robertson v. Railroad, 152 Mo. 389; Baustian v. Young, 152 Mo. 317; Carvin v. St. Louis, 151 Mo. 334; Nixon v. Railroad, 141 Mo. 438; Smith v. Brunswick, 61 Mo.

— Hon. Nat M. Shelton, Judge. (1) The court erred in rendering judgment against appellants for the amount of the alleged tax bill for the reason that same was void, in this that there was no advertisement for bids as directed by the ordinance authorizing the construction of the sewer. Keane v. Cushing, 15 Mo. App. 101; Galbreath v. Newton, 30 Mo. App. 394; Excelsior Springs v. Ettenson, 120 Mo. App. 223, 224; Clapton v. Taylor, 49 Mo. App. 126; Michel v. Taylor, .143 Mo.

— Hon. Thos. J. Seehorn, Judge. (1) Tlie court erred in refusing defendant’s instruction in the nature of a demurrer to the evidence because there was no evidence that plaintiff fell on a public street. State v, Young, 27 Mo. 259; Ely v. St. Louis, 181 Mo. 723; Benton v. St. Louis, 217 Mo. 687; Milling Co. v. Riley, 133 Mo. 574; Hemphill v. More-head, 162 Mo. App. 566; Colton v. Kansas City, 162 Mo. App. 429.

<p>Appeal from Buchanan Circiut Court. — Ron. William D. Rush, Judge.</p> <p>The peremptory writ should have been denied. Abbott v. Adcock, 225 Mo. 335, 363; State ex rel. v. Lesueur, 136 Mo. 425, 459; State ex rel. v. Associated Press, 159 Mo. 410.</p>

<p>1. WILLS: Testamentary Capacity: Morphine and Whiskey. A testator was shown to be 72 years of age and that he used whiskey and morphine to excess at times, on account of the pain of rheumatism. That he was irritable and very deaf. That he quit his former associates to a large degree and occasionally muttered to himself. That he did not always answer in response to the conversation directed to him. That he surrendered the management of his business to his daughter and bequeathed to the latter and his widow the greater portion of his estate, is not sufficient evidence of testamentary incapacity to submit to a jury.</p> <p>2. -: Mental Capacity: Measurement. There is no instrument for the measurement of mental capacity, and each case must be decided by its own peculiar facts guided by the law.</p> <p>3. -: -: Business Ability: Test. Competency to make a will may exist where ability to conduct business may be lacking. The test of testamentary capacity is, did the testator know what he was doing and to whom he was giving his property? Did he understand the act he was performing?</p> <p>4. -: -: -: Witnesses: Attestation. A testator had written his will with his own hand and a member of’ his family, with his knowledge, had sent for two witnesses to come to his residence to attest it. When they arrived, he came into the room, sat down and signed the will in their presence and they attested it in his presence and the presence of each other.</p>

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

<p>Appeal from Livingston Circuit Court. — lion. A. B. Davis, Judge.</p>

<p>1. NEGLIGENCE: Railroads: Jurisdiction: Court of Appeals: Constitution of Another State. Where the law of another state, made the foundation of an action in this State, is attacked as invalid because contrary to the constitution of that other state, the Court of Appeals has jurisdiction of the appeal. The Courts of Appeals are only forbidden to construe the constitutions of the United States and of this State; not that of any other state.</p> <p>2. -: Validity of Federal Statute: Constitution. Courts of Appeals have not jurisdiction of appeals in cases involving the validity of a Federal statute; but they have jurisdiction to, and constantly do, construe such statutes.</p> <p>3. -: Federal Statute: State Law: Remedy: State Court. The Federal Employer’s Liability Act supercedes the State law in all instances, where the injury happens to an employee while engaged in interstate service or labor, and the remedy is exclusively under that act though it may be had in a state court.</p> <p>4. -: Interstate Commerce: Interstate Labor: Personal Injury. An electric railway operated an interstate road between Kansas and Missouri and also on part of the same line a local car between points in Kansas. A conductor of a local electric car was in duty bound at the proper siding, to take such siding and let any interstate car going in the same direction pass him. The local car stopped at a station to let a passenger off and while the conductor was engaged in assisting him off, an interstate car following crashed into the rear of the local car and injured the conductor. It was held, that the conductor was not engaged in interstate service.</p> <p>5.-: Federal Employer’s Liability Act: Particular Service. The Federal Employer’s Liability Act was intended to be confined to injuries occurring when the particular service in which the employee is engaged is a part of interstate commerce. And when such service is upon a particular car that car must be in that service.</p> <p>6.--:--: -. The facts that while it is the duty of a conductor of a local car to get out of the way of an interstate car at proper sidings, and he fails to do so; and while engaged in letting off a passenger from his car at a station the interstate car negligently runs into the rear of his car and injures him, do not show' the conductor to be employed in interstate service.</p> <p>7. STATUTE OF'KANSAS: Penal Statute. The Statute of Kansas on the Liability of Corporations for injuries to employees is not a penal statute; especially in any such sense as would prevent the courts of Missouri in entertaining suits founded on such statute.</p> <p>8. INSTRUCTIONS: Proof. An instruction which permits the jury to find damages for personal injuries in the total sum of $25,000 claimed by the plaintiff’s petition, when $200 of that sum is for medical attendance and there was proof of only $15 of the latter claim being expended, is erroneous, even though the verdict is for $5000, and a remittitur should be entered.</p>

<p>Appeal from Atchison Circuit Court. — Ron. Wm. G, Ellison, Judge.</p>

- — Hon. Wm. D. Rusk, Judge. (1) Plaintiff’s petition does not state a cause of ■ action. Sec. 5438, R. S. Mo. 1909; Laws, 1907, p. 252; Greer v. Eailroad, 158 S. W. 740 (not yet reported); Millan v. Transit Co., 216 Mo. 99; Bates v. Sylvester, 205 Mo. 493. (2) Defendant’s right to object to sufficiency of petition been waived by not taking advantage of defect at time of trial.

— Hon. D. E. Bird, Judge. In a suit on special contract a verdict of the jury, which on the face of it attempts to deal rough justice, should be set aside and a new trial granted. Cole v. Armour, 154 Mo. 333; Witty v. Saling, 171 Mo. App. 574; Weisels-G-erhardt v. Ins. Co., 150 Mo. App. 626.

— Hon. D. H. Harris, Judge. (1) The court erred in refusing defendant’s peremptory instruction, because there was no evidence on which to base the verdict rendered. State v. Gordon, 199 Mo. 561; State v. Lockhart, 188 Mo. 427. (2) At the close of the evidence the court erred in failing to direct a verdict of acquittal, there being an entire failure of proof of defendant’s guilt under the information. State v. DeWitt, 191 Mo. 51, 90 S. W. 77.

— Hon. D. H. Harris, Judge. (1) As notice of claim and proofs of death were not furnished within ninety days, as required' by the statute (R. S. 1899, Sec. 7899, R. S. 1909, Sec. 6948), the plaintiffs were not entitled to recover. (2) Net value defined. Rose v. Ins. Co., 153 Mo. App. 98. (3) Parties cannot annul the provisions of the statute by their executory agreement, contemporaneous or subsequent. Smith v. Ins. Co., 173 Mo. 141; Burridge v. Ins.

— Hon. Thos. J. Seehorn, Judge. (1) The court erred in refusing to sustain the petition for review and motion to set aside the judgment because tbe judgment grants other and different relief than that prayed for.in the petition. Downing et al. v. Stiel et al., 43 Mo. 309; Cross v. Gould, 131 Mo. App. 585; White v. McFarland, 148 Mo. App. 338; Janney v. Spedden, 38 Mo. 395. (2) The judgment should be set aside because it is not supported by the allegations of the petition.

— Hon. A. A. Whits ett, Judge. (1) Payment of a debt once made, and by whomsoever made, discharges the debt except there be some legal fact which authorizes the party making the payment to do so on behalf of the obligor. II Daniel Netotiable Instruments, Sec. 1222; Wolff v. Walter, 56 Mo. 292; Vansandt v. Hobbs, supra; Bunn v. Lindsay, 90 Mo. 252; Crane ,v. Neal, 103 Mo. App. 122; Bell Telephone Co. v. Hannil, 153 Mo. App. 405.

— Hoot. A. A. Whitsett, Judge. When a broker employed to sell real estate procures a purchaser financially able to buy and the purchaser is accepted and enters into a valid written contract with vendor to purchase on the terms named, then the broker has earned his commission, even though the purchaser afterwards refuses to carry out the contract. Love v. Owens, 31 Mo. App. 501; Stinde v. Scharff, 36 Mo. App. 15; Gerhart v. Peck, 42 Mo. App. 644; Hayden v. Grillo, 35 Mo.

— Hon. H. B. Shain. Judge. (1) Plaintiff was clearly guilty of contributory negligence. A passenger, who, without being familiar with the railroad station, walks around the platform in the dark without any precaution to avoid a fall, is guilty of contributory negligence, barring recovery for injuries caused in a fall from the unlighted and unguarded platform.

— Hon. O. A. Lucas, Judge. (1) The case does not come within the last chance or humanitarian doctrine. Kinlen v. Railroad, 216 Mo. 145; Flynn v. Railroad, 166 Mo. App. 182; Koons v. Railroad, 178 Mo. 591; Prewitt v. Eddy, 115 Mo. 283. (2) The demurrer to the evidence should have been sustained. Stokes v. Railroad, 173 Mo. App. 676; Wag-goner v. Railroad, 152 Mo. App. 173; Payne v. Railroad, 136 Mo. 562.

<p>1. APPELLATE PRACTICE: No Abstracts or Briefs Filed: Court Rule: Dismissal. No abstract or briefs being on- file at the. time set for hearing, the. case is not one requiring a motion , for affirmance or ,to dismiss the appeal, but one calling for the application of Court Rule No. 21, which provides that the appeal shall be ‘dismissed, unless continued' at respondent’s option, when the case is- called for hearing and no abstracts of the record or briefs are on file.</p> <p>2. '-: -: Negligence: Discretion of Appellate Court. A case was continued and reset for hearing by appellate court on the certificate of the trial judge that the bill of exceptions could not be filed within the time fixed by Statute because the stenographer of the court could not prepare the transcript within such time, as provided by Sec. 2029, R. S. 1909, Amended Laws of 1911, p. 139. Upon application for second continuance for the same reason on like certificate, it is discretionary with the appellate court to grant or, refuse the requested continuance. And the case will not be again continued but dismissed, it appearing that the negligence of the appellant was the occasion of the failure to file the abstract and briefs.</p>

— Hon. Arch A. Johnson, Judge. (1) The court erred in permitting plaintiff’s counsel to inquire of the jury as to whether they were in the employ of the Southern Surety Company or of the Missouri Fidelity & Casualty Company or if they were ¡stockholders in the Missouri Fidelity & Casualty Company, over the objections of defendant, and in not discharging the panel when requested so to do by defendant.

— Ron. Joseph D. Perlcins, Judge. ' (1) The affidavit filed by defendants ’ attorneys in the justice court shows that they were aware that they were sued as partners, and the absence of a formal allegation of partnership was waived, since it was not raised by demurrer or answer in the circuit court. R. S. Mo. 1909, secs. 1800 and 1804; Bank v. Pudge, 109 Mo. App. 186; Walker v. Deaver, 79 Mo. 664; Iroquois Mfg. Co. v. Annan-Burg Milling Co., 161 S. W. 321.

— Eon. John T. Moore, Judge. (1) The demurrer should have been sustained. Turner v. Thomas, 71 Mo. 596. (2) The allegations, in the petition, do not support the verdict of the jury and the judgment of the court. Hughes v. Railroad, 66 Mo. 327; Schmidt v. Distilling Co., 90 Mo. 293. (3) The verdict of the jury is against the law and the ■evidence and is for the wrong party. Turner v. Thomas, 71 Mo. 596; Hughes v. Railroad, 66 Mo. 325; Foster v. Swope, 41 Mo.

L. B. Woodside, Judge. (1) The demurrer should have been sustained because the petition of plaintiffs shows on its face that plaintiffs have an adequate remedy at law by moving, in the court from which the fee bill was issued, to have the same quashed. Calhoun v. Gray, 150 Mo. App. ■601; Norman v. Eastburn, 230 Mo. 187, 188; Section 2244, R. S. 1909.

County Circuit. Court. — Eon. Jolm T. Moore. Judge. (1) No person shall he charged upon any agreement that is not to be performed within ope year from the making thereof, unless the agreement upon which the action shall be brought or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith. Sec. 1783, R. S. 1909 Allen v. Richard, 83 Mo. 55; Leesley Bros. v. Emit Co., 162 Mo. App. 195.

— Ron. Jos. D. Perkins, Judge. (1) Fraud can never be presumed, it must be proven; and the burden is on Mm who alleges a transaction to be fraudulent to clearly prove it by substantial evidence. Robinson v. Dryden, 118 Mo. 534; Garesche v. McDonald, 103 Mo. 1; Webb v. Darby, 94 Mo. 621; Chapman v. Mcllwrath, 77 Mo. 38; Page v. Dixon, 59 Mo. 43; Hoeller v. Haffner, 155 Mo. 589.

<p>1. APPELLATE PRACTICE: No Brief Filed or Argument Made: Duty of Appellate Court. It is incumbent on the appellate court to examine on appeal the record and ascertain whether there is any reversible error, although no argument was made in the case for either party nor brief submitted.</p> <p>2. CRIMINAL LAW: Violation of Local Option Law: Reputation of Defendant. In a prosecution for a violation of the .local option law it was proper to show the defendant’s reputation for violating that law and inquiries directed to a time shortly prior to the date when the offense was charged to have beer-committed were proper.</p>

— Hon. L. B. Woodside, Judge. (1) The county court had jurisdiction to grant the change, and having granted the change every presumption must be indulged in favor of the validity of the judgment it had a right to render under the law. Halter et al. v. Leonard, 223 Mo. 286, 122 S. W. 706. (2) The county court having made the order or judgment it had a right to make under the law, any condition it might attach to the judgment was merely surplusage.

<p>Appeal from Bollinger Connty Circuit Court. — Bow. Peter B. Huck, Judge.</p>

— Hon. Arch A. Johnson, Judge. (1) When one undertakes to pay tbe debt of ¡another, and by the same act pays his own debt, which-was the motive of the promise, the undertaking is not within the statute of frauds and need not be in writing.

— -Hon. Can McNatt, Judge. (1) The measure of damages for injury by fire to forest trees is the value of such trees before and their value after the fire. Atkinson v. Railroad, 63 Mo. 367; Carter v. Railroad, 128 Mo. App. 57; Crouch v. Railroad, 141 Mo. App. .256; Matthews v. Railroad, 142 Mo. 645. (2) The measure of damages for destroying a meadow'is the expense of reseeding it and the rental value of the land during time plaintiff is deprived of crops of hay therefrom.

— Hon. Frank Kelly, Judge. (1) The court erred in permitting the trial amendment of plaintiff’s petition except upon terms. See. 1951, R. S. Mo. 1909; McMurray v. Martin, 26 Mo. App. 442; Pence v. Gubberts, 70 Mo. App. 208; Wells v. Sharp, 57 Mo. 56. (2) Plaintiff’s chief instruction (No. 1) which undertook to embody the necessary allegations of the petition is erroneous.

Two. — Eon. David E. Blair, Judge. (1) Suit against a Fraternal Beneficiary Association. It is not an insurance company and is not governed by tbe insurance statutes of tbis State. Its constitution, all tbe provisions of tbe certificates, or policies, its by-laws, rules and regulations, .either in force at tbe time a person becomes a member or enacted afterwards, are binding on bim. Statutes 1911, p. 284; Evans v. Modern Woodmen of America, 147 Mo.

— Ron. Frank Kelly, Judge. (1) Defendant by keeping the money paid for insurance by the said Fred C. Porter, after having knowledge of his death, waived all conditions, and things that were to have been done by the said Fred C. Porter, and treated them as having been done, which gave the policy full force and effect, and makes the defendant liable on a suit by the beneficiaries named therein.

— Hon. Da/uid E. Blair, Judge. (1) Highways are laid. out and dedicated for travel by the ordinary modes. No one has a right to move a house along a street except by permission of the municipal authorities. Day v. Green, 4 Cush. 437; Crosswell on Electricity, sec. 569; Keasby on Electric Wires, Sec. 64; Fort Madison Street Railway Co. v. Hughes, 114 N. W. 10, 14 L. R. A., N. S. 448; Dickson v. Kewanee Electric Light & Motor Co., 53 111.

— Hon. Frank Kelly, Judge. (1) The Harding Dredge Company having made default, plaintiff was entitled to a judgment against it for the amount sued for. Section 1799, R. S. Mo. 1909. (2) Appellant could not proceed under the statute for two reasons: First, because the drainage district is a municipal corporation. Second, because the funds of the district were in the hands of the county treasurer. Section 2415, R. S. Mo. 1909.

<p>Appeal from Mississippi Circuit Court. — Hon. Frank Kelly, Judge.</p>

- — Eon. J. P. Foard, Judge. '(1) Contributory negligence bars recovery in this case and appellants’ peremptory instruction should have been given. Eaybourn v. Phillips, 160 Mo. App. 534; Zumault v. Railroads, 175 Mo. 288; Doerr v. St. Louis Brewing Ass’n,176 Mo. 547; Walsh v. Mississippi Yalley Transp. Co., 52 Mo. 434; Weller v. Railroad, 120 Mo. 635; Newton v. Railroad, 152 Mo. App. 167; Butcher v. Railroad, 241 Mo. 213; Jackson v. Railroad, 171 Mo.

— Hon. J. P. Foard, Judge. (1) It was admitted that William IT.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) Upon the undisputed evidence plaintiff was-guilty of contributory negligence, which precludes any recovery. White on Personal Injuries, sec. 415; Spencer v. Railroad, 130 Ind. 181; Fore v. Railroad, 144 Mo.

<p>Appeal from Knox Oircnit Court.- — Hon. Charles D. Stewart, Judge.</p>

Louis County Circuit Court. — Eon. John W. McElhinney, Judge. (1) The State must prove that the defendant consented to the sale; mere knowledge of the sale is not sufficient; nor is the failure to “exercise reasonable care” a crime under the dramshop law. State v. Crawford, 151 Mo. App. 402; State v. McAdoo, 80 Mo. 216; State v. Baker, 71 Mo. 475; State v. Eeiley, 75 Mo. 521; State v. Morgan, 134 Mo. App. 726; State v. Durkem, 23 Mo. App. 387; State v. Stamper, 141 S. W. 432.

— Hon. Charles D. Stewart, Judge. The court erroneously gave defendant’s instructions Nos. 2, 3 and 5, authorizing the jury to find for defendant on a defense not set up in the pleadings, to-wit, the defense that defendant killed the dog when he discovered it under such circumstances as to satisfactorily show that it had been recently chasing his sheep.

<p>1. CONTRACTS: Varying Written Contract: Parol Evidence. In the absence of fraud or mistake, parol evidence is not admissible to vary or contradict a written contract.</p> <p>2.--: -. A written contract to assume and pay notes, with interest on same from a specified date until paid, and “to fully comply with the conditions of said notes," was an agreement to pay interest on the notes according to their terms, and hence parol evidence of prior negotiations was not admissible to show that a different rate of interest was contemplated.</p> <p>3. PRINCIPAL AND SURETY: Effect of Assumption of Debt. As between themselves, a person who assumes the payment of a note becomes the principal debtor, and the maker is relegated to the position of surety.</p> <p>4. FRAUD AND DECEIT: Misrepresentations. As part payment on the purchase price of land, defendant entered into a contract whereby he assumed the payment of certain notes executed by plaintiff, which provided for six per cent interest per annum until paid and eight per cent interest per annum after maturity. The notes were due three days after the contract was entered into. Plaintiff stated to defendant, during the negotiations for the transaction, that, as the payee was satisfied with the loan, he would, in plaintiff’s opinion, be willing to renew it at six per cent interest. The note was not renewed and no dealings were had with the payee, and when defendant came to pay it, some time after maturity, the payee insisted upon his paying eight per cent interest. Defendant refused to pay more than six per cent interest and the payee thereupon demanded that plaintiff pay him the extra two per cent. Plaintiff, having paid this amount, instituted suit against defendant to recover the same. ' Held, that no fraud on the part of plaintiff was shown, and that defendant, having become-the primary obligor, as between plaintiff and himself, it devolved upon him to arrange with the payee to renew the note at six per cent interest, if he could, and not having done so, he was bound by the provisions of the note.</p>

Francois Circuit Court. — Hon. Peter H. Huck, Judge. (1) The charges for sending the message were not paid by the plaintiff at the time of tendering the message for transmission and hence plaintiff is not entitled to the penalty. Sec. 3330, R. S. 1909; 27 Am. & Eng. Eney., 1086; 37 Cyc., 1704'; Jones on Tel. & Tel. Cos., sec. 643; Joyce on Electric Law, sec. 848; Adcox v. Western Union Tel. Co., 171 Mo. App. 331; Eddington v. Western Union Tel. Co., 115 Mo.

— Hon. Peter H. HucJc, Judge. (1) Defendant railway company was required by tbe statute to erect along its right of way; passing through Kelley’s fields, a lawful fence. R. S. 1909, secs. 3145, 6455; King v. Railroad, 79 Mo. 328. (2) As between adjoining land owners, no recovery can be had for damages done by trespassing animals unless the owner of the field maintains a lawful fence.

— Hon. Charles D. Stewart, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence. Plaintiff, while a witness, stated “the rock looked bad to him.” He had known it was dangerous for two days. There was no promise of repairs or assurance of safety. Plaintiff is an experienced miner.

Francois Circuit Court. — Hon. Peter H. Huck, Judge. (1) The foreman of Missouri Granite and Construction Company could not make it liable for the services of these surgeons, in the absence of evidence that its foreman had been authorized by it to summon medical aid in the case of emergency. Meisenback y. Company, 45 Mo. App. 232; Weinsberg v. Company, 135 Mo. App. 564; Jesserick v. Walruff, 51 Mo. App. 565; Morrell v. Lawrence, 203 Mo. 363.

<p>1. LIS PENDENS:' Effect of Filing: Rights of Subsequent Purchasers and Mortgagees. One wlio purchases or takes a mortgage on land after a suit to divest the title to it is instituted and Ms pendens filed, does so subject to the final judgment in the cause, and his title or interest abides the result of the suit, regardless of whether he is or is not made a party thereto.</p> <p>2. - :-: -: Conclusiveness of Judgment. A default judgment for the plaintiff, in a suit to divest the title to land, during the pendency of which, and after the filing of Us pendens, a third person took a mortgage from the defendant in such suit, was conclusive on the third party (mortgagee), in the absence of fraud or collusion between the parties to the suit; and if there was such fraud, it was not available to the mortgagee, because he did not establish it in that suit, or in another suit to vacate or set the judgment aside for that reason, and this is true although he filed an interplea charging fraud, since he did not insist on a trial on the interplea as he should.</p>

Francois Circuit Court. — Hon. Peter H. Huck, Judge. The record of the circuit court does not show that a hill of exceptions was ever filed. A bill of exceptions cannot prove itself by reciting on its face that those acts were done, the doing of which the law requires to be entered in the record proper. Hill v. Butler County, 195 Mo. 511; Briemeyer v. Star Bottling Co., 136 Mo. App. 84.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) On the entire record in this cause plaintiff is not entitled to recover and defendant’s instruction No. B. requested at the close of all the evidence should have been given, (a) There is no evidence ■showing that Weichelt, the employee of defendant, who-directed plaintiff to treat Maude Woods, had any authority to contract for such services and bind the credit of the defendant therefor.

<p>1. REAL ESTATE BROKERS: Time for Performance. Where a contract authorizing a broker to sell real estate does not stipulate within what time the sale shall be made, reasonable time for performance is implied and reasonable diligence on the part of the agent is required.</p> <p>2. -: Right of Owner to Revoke Authority. Where a contract authorizing a broker to sell real estate dpes not stipulate within what time the sale shall be made, the owner has the right to discharge the broker, provided he acts in good faith and does not do so for the mere purpose of defeating the payment of a commission.</p> <p>3. -: Action for Commission: Revocation of Authority by Owner: Instructions. In an action by a real estate broker for a commission for effecting a sale of land, where there was evidence that he had consented to his discharge previous to the consummation of the sale, an instruction authorizing a recovery by him on the theory that he was the procuring cause of the sale, without requiring a finding that he did not consent to his discharge, was erroneous, since a broker who consents to his discharge cannot recover a commission for a sale subsequently made, even though the purchaser was a customer procured by him.</p> <p>4. -: -: -: -. In an action by a real estate broker for a commission for effecting a sale of land, where there was evidence that, prior to the consummation of the sale, he had been discharged by defendant, an instruction-that, even though plaintiff had been discharged, yet if his efforts, prior to his discharge, were the procuring cause of the sale, the jury should find for him, was erroneous, since if plaintiff was rightfully discharged, he -was not entitled to recover.</p>

Appeal • from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) It is an elementary principle of code pleading that only the ultimate, or substantive, facts constituting the plaintiff’s cause of. action should be pleaded and that all evidentiary facts should be excluded. The reason for the rule is said to be that the ultimate fact in issue may be truly stated generally though sustained by other evidence than that anticipated by the pleader.

<p>1. APPELLATE PRACTICE: Crimes and Punishments: Quashing Information: Right of State to Appeal. Under Secs. 5304 and 5305, R. S. 1909, an appeal lies on part of the State from an order quashing an information in a criminal case.</p> <p>2. FENCES: Destruction: Indictments and Informations. Sec. 4598, R. S. 1909, relating to the breaking, destruction or injury of fences, etc., denounces a number of offenses, and it is sufficient if the information charges any one of them in the language of the statute.</p> <p>3. -: -: -. An information, under Sec. 4598, R. S. 1909, charging that defendant did wilfully and maliciously pull down a wire fence, the same being the property of a person designated, and in which defendant had no interest,' was not vulnerable to attack on the ground it failed to further charge defendant with not only pulling down the fence but that he left it open or down, since the statute makes it an offense to merely pull down the fence of another, in which the accused has no interest.</p> <p>4. -: -: -. An information charging defendant with pulling down a fence belonging to another, in violation of Sec. 4598, R. S. 1909, is sufficient if it charges the offense in the language of the statute, although it does not describe the land upon which the fence was situated.</p>