Volume 181 — Missouri Appeal Reports

<p>Appeal from St. Francois Circuit Court. — Hon. Peter Huck, Judge.</p> <p>(1) The admission of affidavit of Cordelia Meadows and Charles Meadows was prejudicial error, as same was hearsay testimony. Dogherty v. Dogherty, 155 Mo. App. 481; Oak Lawn Sugar Co. v. Spark, 159 Mo. App. 496; Northrup v. Colter, 150 Mo. App. 639; Prewitt v. Martin, 59 Mo. 325; Blooms Sons Co. v. Haas, 130 Mo. App. 122. (2) The testimony of C. E; Abshier as to statements made by C. B. Scott was error, for same were self-serving statements. Hitt v. Hitt, 150 Mo. App. 631; Blasland v. Hicks, . 70 Mo. App. 301; Nelson v. Railroad, 66 Mo. App. 647; Citizens Bank v. Durrill, 61 Mo. App. 543.</p>

— Hon. Charles D. Stewart, Judge. Plaintiff Webster had no knowledge of any claim of William Balbach, the plaintiff in the attachment suit wherein the property was attached, nor had any knowledge of any of the transactions between Peebles and Hubinger, and even admit for the sake of argument (which we do not do) that the sale of the telephone by Hubinger to Peebles and the sale of the line by Peebles to the plaintiff, Webster, was fraudulent, so far as Hubinger and Peebles…

ProMbition. Original Proceeding. The petition of Holt and Dalton, while limiting its prayer to the revocation of the license, does, in fact, seek to reopen and review the judgment of the county court rendered at a former term and to set aside and annul said judgment. Verble’s motion to strike out was leveled at matters in the petition of Holt and Dalton over which the court had no jurisdiction.

Genevieve Circuit Court. — Son. Peter S. Such, Judge. (1) The rule of damages for breaches of warranty in the conveyance of land, in case of total failure of title, has ever been limited in this State to the purchase money paid, with interest thereon and costs. The recital in the deed from Henson to Shead of a consideration of one thousand dollars is no evidence of the sum paid by plaintiffs to Shead.

<p>Appeal from Jefferson Circuit Court. — Son. E. M. Dearing, Judge.</p> <p>(1) The court erred in admitting' illegal and improper evidence. See Hyatt v. Railroad, 19 Mo. App. 300; Com. Co. v. Railroad, 113 Mo. App. 549; Pruitt v. Railroad, 62 Mo. 527; Hobbs v. Railroad, 10 Law Rep. (2B) 111; Hughs v. Tel. Co., 79cMo. App. 137. (2) The court erred in giving instruction No. IY at the request of plaintiffs. See Hyatt v. Railroad, 19 Mo. App. 300; Com. Co. v. Railroad, 113 Mo. App. 549; Pruitt v. Railroad, 62 Mo. 527; Hobbs, v. Railroad, 10 Law Rep. (2B) 111; Hughs v. Tel. Co., 79 Mo. App, 137; Wilburn v. Railroad, 36 Mo. App. 215; Morrison v. Yancy, 23 Mo. App. 675; Camp v. Railroad, 94 Mo. App. 284; Rhodes v. Land & Lumber Co., 105 Mo. App. 314; Badley v. St. Louis, 149 Mo. 134. (3) The ■court erred in overruling defendant’s motion for a new trial. See Hyatt v. Railroad, 19 Mo. App. 300; ■Com. Co. v. Railroad, 113 Mo. App. 549; Pruitt v. Railroad, 62 Mo. 527; Plobbs v. Railroad, 10 Law Rep. (2B) 111; Hughs v. Tel. Co., 79 Mo. App. 137; Wil'burn v. Railroad, 36 Mo. App. 215; Morrison v. Yan■cey, 23 Mo. App. 675; Camp v. Railroad, 94 Mo. App. 284; Rhodes v. Sand & L. Co., 105 Mo. App. 314; Badley v. St. Louis, 149 Mo. 134. (4) The court erred in ■overruling defendant’s motion in arrest of judgment. The defendants were sued as partners, and the verdict for M. E. Hogan is a bar to a judgment against John J. Hogan. In finding for M. E. Hogan, the jury found there was no contract and no partnership, and such .a finding is a bar to a judgment against John J. Hogan.</p> <p>(1) The court did not err in admitting of the tes-timony of plaintiffs to the effect that they had moved Iheir engine, saw mill and machinery from Browns-town, 111., to Barnhart, Missouri and that it cost them ’$140.48. . Such testimony was admissible, not as an ■element of damages, but for the purpose of showing that plaintiffs had attempted to perform their contract and the amount of money expended by plaintiffs in doing this. Brennan v. City of St. Louis, 92 Mo. 488; Fullerton" v. Fordyce, 144 Mo. 533. (2) The ■court did not err in the admission of testimony of witnesses Strayer and Swaller to the effect that they were employed by plaintiffs on March 17, 1911 and that they run out of logs and in consequence, waited •one day and that their services were worth $1.50 each at the time when defendant, John J. Hogan had told plaintiffs to wait, he would he out and get the logs for them, nor did the court err in the admission of the testimony of John Scoles, Tirry and Leadbetter to the effect that said defendánt called them by phone in April, 1911 from their homes in Illinois and told them to come down and bring a man with them and when they got here, there were no logs and plaintiffs and Scoles were compelled to go back because of defendant’s failure to furnish logs, that the reasonable value of the time and services of the said Scoles, Tirry and Leadbetter were $1.50 and $2 each and that their railroad fare was $5 each, nor did it err in the admission of the testimony regarding another trip of plaintiff’s and a man by the name of Sidwell, at defendant’s request in June of the same year in which it showed plaintiffs came and that defendant was not ready for plaintiffs to saw and that by reason of his having caused them to come and bring this man, it had cost them about $20. All of this testimony was admitted as a proper element of damages upon the theory that, though defendant had already broken his contract, it was the duty of plaintiffs to make the damages and injuries to him as light as possible, and in doing this the party already injured, is entitled to all necessary expenses incurred by them in attempting to comply with the contract. Shelby v. Railroad, 77 Mo. App. 212; Fullerton v. Fordyce, 144 Mo. 533; Ellis v. Hilton, 78 Mich. 150; 13 (Cyc) Cyclopedia of Law and Procedure 61 and Note 2; 13 (Cyc) Cyclopedia of Law and Procedure 72; 13 (Cyc) Cyclopedia of Law and Procedure 78 and cases there cited; Athletic B. B. Assn. v. St. L. S. P. Assn, 67 Mo. App. 656. (3) The court did not err in instruction No. 4 given at request of plaintiffs, for plaintiff was entitled to the measure of damages proved by the .evidence mentioned in point 2 of this brief because said damages and expenses were incurred in reducing the damages for a contract already broken, bnt for which they had good reason to believe could be mended with little cost, and for the loss of profits (the other element of damages) for the final breaking of the contract after plaintiffs knew it was no use for them to try any longer to perform the contract. Shelby v. Railroad, 77 Mo. App. 212; Puller-ton v. Fordyce, 144 Mo. 533; Ellis v. Hilton, 78 Mich. 150; 13 (Cyc) Cyclopedia of Law and Procedure, 61 and Note 2; 13 (Cyc) Cyclopedia of Law and Procedure, 72; 13 (Cyc) Cyclopedia of Law and Procedure, 78; Athletic B. B. Assn. v. St. L. S. P. Assn, 67 Mo. App. 656; Wolff Shirt Co. v. Fraenthal, 96 Mo. App. 314; 13 (Cyc) Cyclopedia of Law and Procedure, 47; 13 (Cyc) Cyclopedia of Law and Procedure, 50. For loss of profits see also the following cited by appellant. Hyatt v. Railroad, 19 Mo. App. 300; Com. Co. v. Railroad, 113 Mo. App. 549; Badgly v. Railroad, 149 Mo. 134. (4) The court did not err in overruling defendants’ motion in arrest of judgment. Defendants being sued as partners, and the evidence proving to the satisfaction of the jury that defendant John J. Hogan alone was liable, a verdict and judgment in favor of plaintiffs against John J. Plogan, one of the partners and in favor of the other partner, M. E. Hogan is entirely proper, Sec. 1981, R. S. 1909. Sec. 2769, R. S. Mo. 1909. Sec. 2772, R. S. Mo. 1909. Partnership contracts are within the above section. Laumeier v. Dolph et al., 171 Mo. App. 82; Same case, 145 Mo. App. .78; Hutchinson v. Safety Gate Co., 247 Mo. 109; Stove Co. v. Grubbs, 135 Mo. App. 466.</p> <p>Statement. — Action by plaintiffs against M. E. and John J. Hogan for damages claimed to have accrued to plaintiffs by reason of a breach of contract entered into between plaintiffs and defendants, as it is alleged.</p> <p>The petition avers that on October 24, 1910, defendants entered into a verbal contract with plaintiffs under and by which it was agreed that if plaintiffs would furnish a certain sawmill, engine and machinery, and necessary men to operate the same, putting up and operating the mill at defendants’ premises in Jefferson county, Missouri, within a reasonable time, that defendants would furnish plaintiffs sufficient timber and logs at the mill to make 240,000 feet of lumber, of dimensions specified, and would pay plaintiffs the sum of five dollars per thousand feet, or a total of $1200 therefor; that in addition to furnishing the logs to make these 240,000 feet of described lumber, defendants contracted to furnish plaintiffs’ mill certain ■other quantities of timber to make into ties, agreeing to pay plaintiffs the sum of eight cents for each tie ■so made; that in addition to furnishing the timber for the purpose of making the lumber and ties above mentioned, defendants would furnish plaintiffs at the mill, all timber necessary for fuel and necessary water to run the engine, defendants further contracting to at all times keep sufficient logs and timber at the mill to enable plaintiffs to-be continually occupied in sawing the 240,000 feet of lumber, as also ties as above, and at no time to permit plaintiffs to run out of wood or water for their engine, or of logs for sawing the lumber and ties, at all times furnishing plaintiffs at their mill with steady sawing until plaintiffs had sawed the amount of 240,000 feet of dimension lumber specified; that relying on the promises and agreements of defendants, plaintiffs accepted the same in good faith and at great expense to themselves and within a reasonable time moved their sawmill, machinery, etc., and laborers a great distance, namely, from Browns-town, Illinois, to defendants’ premises in Jefferson county, Missouri, and on December 6, 1910, had the same at the place there designated by defendants and installed ready for sawing; that defendants began to furnish and did furnish logs and timber to a sufficient amount to enable plaintiffs to cut 61,000 feet, and also furnished certain other timber which defendants sawed into ties; that on or about March 17, 1911, in violation of the agreements and the contract above menioned, defendants wrongfully failed to perform their part thereof by failing to furnish sufficient timber to> keep the mill and machinery running and plaintiffs and their men at work, and negligently continued to fail to furnish the same until about June 18,1911, when defendants again furnished a small amount of timber to plaintiffs at their mill; that defendants furnished some tie timber until about July 4, 1911; that plaintiffs sawed the timber furnished into ties, but that on July 4, 1911, and ever since that date, defendants, in violation of their contract and agreement, had negligently failed and refused to furnish plaintiffs at their mill, any timber for fuel, any further timber to be sawed into dimension lumber, any logs or timber to be sawed into ties, or any water for their mill, though often requested by plaintiffs so to do. Plaintiffs further aver that the reasonable value of the services of the sawmill, machinery, laborers, etc., is about $50 per day.</p> <p>They further aver “that by reason of defendants having failed to furnish timber or logs to plaintiffs’ mill from the 17th day of March, 1911, to the 18th day of June, 1911, and by reason of defendants having failed to furnish sufficient timber logs for lumber and sufficient timber for fuel and sufficient water to run plaintiff’s engine, as above mentioned and fully described in this petition, from the 4th day of July, 1911, to this date, plaintiffs have lost large amounts of valuable service and been forced to be without large amounts of valuable time of their said men, laborers, artisans, sawmill, engines and machinery; been forced to expend great amounts of money for railroad fare, hotel bills and traveling expenses in going to and from their homes from said defendants’ place of business aforesaid in the sum of $1095; that by reason of defendants having failed and refused to furnish to plaintiffs at their mill suitable timber and logs for plaintiffs to saw the balance of the 240,000 feet, which is; 160,000 feet of lby wide and 2by wide lumber, as aforesaid, plaintiffs have been damaged in the sum of $905.” Judgment is prayed for $2000 and costs.</p> <p>Defendants answered separately by general denials as also by special denials of partnership, the answers being duly verified.</p> <p>There was testimony in the case tending to prove that plaintiffs lived at St. Elmo, Illinois; that defendant M. E. Hogan was a banker, living in St. Louis, but conducting a bank at Altamont, Hlinois; that plaintiff Tirry, along in October, 1910, was in Hogan’s bank at Altamont, when Hogan asked him if he had a sawmill and if he could1 move this sawmill from its location in Illinois to Missouri to the premises of John J. Hogan, a son of M. E. Hogan, situated near Kimmswick, Jefferson county, Missouri, and there set it up- and saw timber for Hogan and his son. Tirry expressed willingness to take the job if his son-in-law, Leadbetter, was willing. Hogan told him that he would write to his son and let the latter know when to meet them; that his son John was running the business in Missouri for him and whatever bargain he made would be all right. On receipt of a letter signed by J ohn J. Hogan, dated St. Louis, Sept. 7, 1910, and on the letterhead of M. E. Hogan & Sons, plaintiffs met John J. Hogan at the timber tract. This letter was to the effect that the writer, John J. Hogan, understood from his father that Tirry had a sawmill and would like work for it that fall; that he, J ohn J. Hogan, needed a mill for sawing car-stack crossing plank and ties and thought he could give Tirry enough work to keep his mill working steady for some time to come, and asked Tirry to write and let him know what the prospects were for his coming over and if he thought he could bring teams and men to do the sawing, logging and hauling. Telling where the mill was to be located, the letter stated that the writer was paying fourteen cents a tie for hauling to a station, about seven miles. As a result of the correspondence, plaintiffs met John J. Hogan at the timber tract, and while Hogan was showing them the timber Leadbetter remarked that it was a poor inducement to bring a mill so far. Whereupon Hogan said that did not make any difference; that he would agree to furnish them timber to cut at least 240,000 feet of lumber of the dimensions specified (that is “1 by wide and 2 by wide,” meaning by that 1 inch thick and as wide as the timber would make and 2 inches thick and as wide as the timber would make), for which he would pay $5 per thousand, further agreeing that all the timber that could not be made into lumber of the dimensions specified should be made into railroad ties, for which latter he would, pay eight cents per tie. Hogan also told plaintiffs that there was plenty of water there to run the engine and that the slabs could be used for fuel. Plaintiffs did not accept the proposition of John J. Hogan to do their own hauling, that being left to Hogan. This agreement having been arrived at between plaintiffs and John J. Hogan, plaintiffs went back to Illinois, agreeing that as soon as they could finish a contract on which they were there then working that they would move the mill over to the Hogan tract and go to work. After this conversation and arrangement with John J. Hogan, defendants went back to Altamont and told M. E. Hogan of the arrangement with his son John. The mill was then at Brownstown, Illinois, and plaintiffs began to get ready to move it to Missouri, which they did, moving the mill over at a cost of about $140. It was set up and ready to run on December 11, 1910, when plaintiffs commenced sawing the logs. Plaintiffs furnished two hands beside working themselves in running the mill and sawed until Christmas of that year, using up all the logs then on hand. They then went home to Illinois and came bach on J anuary 2nd.. There were no logs there then and plaintiffs again went home, staying until the latter part of January. Returning to the mill they found only three logs there to-saw. This was in February. They sawed these and moved the mill to another part of the tract and there sawed 12,000 feet of lumber. Logs were furnished them until about March 17, when they again ran out of logs, having sawed a total of 60,000 feet of lumber and some-ties. When they ran out of logs they called up John J. Hogan and notified him of that fact and he agreed to come down and meet them. He did not come and they again called him and he told plaintiffs to go home and stay that Sunday and if they did not hear from him to come back. They did so and found no logs, and so informed Hogan. Hogan had told them he would notify them when to come back, and did notify them, telling them to come back and bring some men with them. That was in April. There were no log there when they came back, bringing a man with them. It cost them $8.49 for expenses of the road and bringing him with them. This was repeated in .June, making two trips at the request of Hogan. He told them he had no more logs. During all this time plaintiffs had two laborers waiting to go to work. Asked if they were paying them for every day, objection was made by counsel for defendants, on the ground that this was not a proper element of damage. The court overruled the objection, saying that the question seemed to him to be what profit would have been made if Hogan had furnished the timber under the contract; that he thought the question was how much plaintiffs could have made there, sawing the amount of lumber, but that he would hear the testimony so as to get at the facts in the matter. Defendants duly saved exception ,to the overruling of the objection, and the witness testified that they were paying these two men $1.50 a day each. Subject to the same objection and under the same ruling, the court permitted witness to testify as to the value of the services of himself and his son-in-law in running the mill. There was also testimony that the expense of going hack and forth on the two different occasions between the mill and his home in Illinois was $15 the round trip. There was further testimony to the effect that the cost of cutting the timber was about $2.50 per thousand feet. Both plaintiffs testified practically to the effect as above stated. They also produced other witnesses, whose testimony tended to corroborate that given by plaintiffs as to non-supply of logs, etc.</p> <p>Defendants’ testimony was to the effect that plaintiffs had met John J. Hogan and gone over the matter of the proposed work and had agreed to take the job on the terms above mentioned, and further agreed that they would come the next week — that is, the week following October, 1910 — defendant John J. Hogan, however, undertaking to do the hauling himself; that everything was ready for plaintiffs to go to work on the Monday following, that is, in October, but they did not come with the mill until December 5th, and did not get it started until the tenth, went home Christmas and stayed a week, came back during the first week in January, then worked two weeks and went home again; then came back and went to work, the mill having been in the meantime moved to another place. There was also testimony tending to show that when the mill had been moved from the first place, it had been moved to a place where John J. Plogan objected, and to a place where he could not get logs to the mill; and also testimony tending to show that they had kept the mill supplied with water and timber. There was also testimony given on behalf of defendants to the effect that M. E. Hogan and John J. Hogan were not partners in this enterprise and that M. E. Hogan had no interest whatever in his son’s business.</p> <p>There was no denial of the terms of the contract nor of the number of feet of lumber cut.</p> <p>At the instance of plaintiffs the court gave several instructions, none of which are now complained of except the fourth, which was as to the measure of damage, the court telling the jury that if they found for plaintiffs, in estimating their damages they might allow such reasonable value as is shown by the evidence for the services of plaintiffs’ men and machinery and plaintiffs’ own time, together with such amounts as were reasonbly and necessarily expended by plaintiffs for railroad fares and traveling expenses while said men and machinery and plaintiffs were necessarily idle, and while plaintiffs were necessarily traveling to and from their homes to defendants’ place at all times, as you may, from the evidence, find that plaintiffs had good reason to believe that such expenses and loss of time were reasonably necessary to the proper performance of plaintiffs’ part of the ■aforesaid contract, and which defendants by their having failed to furnish sufficient logs or water, had occasioned (if you do, in fact, find that the defendants did so fail) together with the amount of clear net profit, which you may, from the evidence, find that plaintiffs would reasonably have made had defendants furnished (in addition to the logs or ties) sufficient logs and water to make the balance of the full amount of the 240,000 feet of lby wide and 2by wide lumber; provided, however, that before you can allow plaintiffs any clear net profits as above mentioned, you must, in fact, find that the defendants did agree to furnish sufficient logs to make said 240,000 feet of lby wide and 2by wide lumber and necessary water for engine, and did fail to furnish said logs or water or some part thereof.”</p> <p>The court gave all the instructions asked by defendants, six in number, one of them to the effect that if the jury believed that in October, 1910, John J. Hogan agreed with the plaintiffs to hire them to furnish a sawmill and cut timber on a tract of land in Jefferson county, Missouri, into lumber and ties, and agreed to pay plaintiffs therefor for such lumber as they might saw from said tract the sum of $5 per thousand feet for the lumber so cut and eight cents per tie,” and that said Hogan did not agree or guarantee to furnish plaintiffs 240,000 feet of lumber to be so sawed, and to furnish water for their mill, then you will find the issues for the defendants.”</p> <p>Another instruction was to the effect that if they found from the evidence that it is part of the agreement between plaintiffs to set their mill at such point on the tract of land where said timber was situated as would be convenient for defendant John J. Hogan to deliver his logs thereat and that when requested by that defendant, plaintiffs had failed and refused to set their mill at the point on the tract convenient to defendant, plaintiffs could not recover.</p> <p>Another was as to the burden of proof being upon plaintiffs.</p> <p>Another was to the effect that if the jury found from the evidence that defendant M. E. Hogan was not in partnership with John J. Hogan and did not enter into a contract with plaintiffs for cutting the timber, their verdict should be for defendant M. E. Hogan, and instructed the jury as to what was necessary to prove partnership. The final instruction was to the credibility of witnesses.</p> <p>The jury returned a verdict in favor of plaintiffs and against John J. Hogan, assessing damages at the sum of $300, and found in favor of defendant M. E. Hogan. Judgment following and defendant John J. Hogan, interposing a motion for new trial as well as one in arrest and excepting to these motions being overruled, has duly perfected his appeal to this court.</p> <p>Complaint is made of the admission of certain evidence and of the giving of the fourth instruction, the part objected to in that being italicized, and also to allowing recovery against John J. Hogan when by the verdict of the jury it was found that there was no partnership between the defendants M. E. and John J. Hogan.</p>

Louis Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The peremptory instruction for nominal damages for plaintiff, given by the court at the first trial at defendants’ request, should have been allowed in evidence. It was a solemn admission of plaintiff’s cause of action, conceding everything except the amount of damages. 38 Cyc. 1637; Pratt v. Conway, 148 Mo. 291, 299; G-reenleaf on Evid., sec. 186; Eames v. N. T. Life, 134 Mo.

Louis Circuit Court. — Hon. W. B. Homer, Judge. (1) All money, rights, credits, etc., of a defendant in charge of or under control of the garnishee or owing by him from the time of the service of garnishment to the time of filing his answer, is subject to garnishment.” Sec. 2416, R. S. Mo. 1909; Dinkins v. Woodenware Co., 99 Mo. App. 310; Stevenson v. Machine Co., 150 Mo. App. 555; Bambrick v. Construction Co., 152 Mo. App. 69; Loomis v. Shriner, 165 Mo. App. 25.

<p>1. COMMON CARRIERS: Injury to Shipment: Ownership: Sufficiency of Evidence. In an action against a common carrier for damages to horses in transit, evidence that plaintiff was the consignor and paid the railroad company the transportation charges, that some of the horses were delivered to plaintiff at destination and others which had been injured were shipped back to him to the point of shipment, was sufficient to warrant a finding that plaintiff was the owner.</p> <p>2. -: -: -. A consignor may maintain an action against a carrier for injury to the shipment without proving his ownership of it.</p> <p>3. APPELLATE PRACTICE: Penalty for Vexatious Appeal. Where, on appeal by defendant, the only point assigned as error was one which had previously been decided against it in another case by another appellate court and no authorities were cited: in support of its position, held that the court, on affirming the judgment, should impose a penalty of ten per cent for-vexatious appeal, as provided by Sec. 2084, R. S. 1909.</p>

Louis City Circuit Court. — Eon. William M. Kinsey, Judge. The trial court erred in giving respondent’s third instruction: This instruction authorized the jury to find for the respondent if they found appellant violated the speed ordinance.

<p>CONVEYANCES: Quitclaim Deed: Rights Conveyed: Deed Construed. Several heirs who inherited an interest in fee in an undivided portion of land and an undivided interest in an estate in remainder in a portion of the land executed a quitclaim deed conveying the- land. The particular estate preceding the estate in remainder was an estate by the curtesy, which the father of the heirs had acquired by purchase. Prior to the execution of the quitclaim deed, their father had died testate, his will providing that his interest in the land should be sold and the proceeds held in trust. Subsequent to the death of the father, the land was sold at a partition sale, and so much of the proceeds as was determined to be the value of the estate by the curtesy was paid to the executor of the father’s estate, who distributed a certain portion of it among the heirs who had executed the quitclaim deed. In an action by the grantee in the deed to recover the amount so paid the heirs, held that, at the time they executed the deed, defendants had no interest in the land itself, as beneficiaries under their father’s will, and hence, although the deed conveyed whatever interest they had in the land itself, it did not convey their right to a distributive share in the fund realized from the sale of their father’s interest in the land.</p>

— Hon. Charles D. Stewart, Judge. (1) The court erred in refusing to sustain defendant’s motion requiring the Schuyler county circuit clerk to send up amended transcript and the original papers, including the original demand, in the cause. R. S. of Mo. 1909, secs. 1934, 1939; Becker v. Lincoln Real Estate & B. Co., 118 Mo. App. 74.

<p>Transferred to Supreme Court.</p>

— Eon. O. A. Lucas, Judge. (1) Where the expressed purpose of the stipulations in a contract of carriage, relieves the carrier from common-law liability for its own negligence, such stipulations are against public policy and therefore void and of no effect. Vaughan v. Railroad, 62 Mo. App. 461; Blanchard v. Railroad, 60 Mo. App. 267 Potts v. Railroad, 17 Mo. App. 394; The Guildhall, 58 Fed. 796; The Iowa, 50 Fed. 561; Willock v. Railroad, 166 Pa. St. 184, 27 L. R. A. 228.

— Eon. Jas. E. Slover, Judge. The court committed error in refusing to give to the jury the peremptory instruction requested by defendant at the close of the entire case, directing the jury to return a verdict in favor of the defendant. Etcon v. Railroad, 125 Mo. App. 223; Clark v. Railroad, 138 Mo. App. 424; Ridgeway v. Railroad, 161 Mo. App. 260; McDowell v. Railroad, 167 Mo. App. 577; Winslow v. Railroad, 170 Mo. App. 617; Hickey v. Railroad, 174 Mo.

— Hon. Jas. H, Clover, Judge. (1) The demurrer offered on behalf of the appellant at the conclusion of respondent’s testimony and the demurrer offered on behalf of the appellant at the close of all the testimony in the case, should have been sustained; and the peremptory instruction directing a verdict for appellant should have been given at the close of all the testimony. Levi & Co. v. Railroad, 157 Mo. App. 536; Ridgeway et al. v. Railroad, 161 Mo.

— Hon. Fred Lamb, Judge. (1) At the close of plaintiff’s case, the court should have directed a verdict for defendant. The evidence wholly failed to show any violation of any duty owed by the train men to the deceased, hence there was nothing upon which to predicate negligence. Cahill v. Railroad, 205 Mo. 393; Evans v. Railroad, 178 Mo. 508; Degonia v. Railroad, 224 Mo. 564; Van Dyke v. Railroad, 230 Mo. 259.

— Hon. W. O. . Thomas, Judge. (1) The court below erred in refusing the peremptory instruction asked by defendant at the conclusion of all the evidence in the case. Yonkey v. St. Louis, 219 Mo. 37; Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729; Taylor v. Yonkers, 105 N. Y. 222, 11 N. E. 642; Crawford v. New York, 68 App. Div. (N. Y.) 107; Tobey v. Hudson, 49 Hun. (N. Y.)' 318; Foley v. N. Y., 95 App. Div.

— Hon. Frank G. Johnson, Judge. (1) The defendant’s demurrer to the plaintiff’s case should have been sustained. Plaintiff’s evidence did not show that the accident was caused by an agent or employee of the defendant, acting within the scope «of his employment. Sherman v. Railroad, 72 Mo. 62; Clark v. Buckmobile Co., 107 N. M. App. Div. 120; Winfrey v. Lazarus, 148 Mo. App. 388; Grattan v. Suedmeyer, 144 Mo. App. 719; Fleishman v. Ice & Fuel Co., 148 Mo.

— Hon. Kimbrough Stone, Judge. (1) There was no duty to keep a lookout for the plaintiff at the private crossing in question and it was error for the court to submit the case upon any such theory. Hoffman v. Railroad, 24 Mo. App. 546; Rayner v. Railroad, 86 Mo. App. 521; Melton v. Railroad, 99 Mo. App. 282; Atterbery v. Railroad, 110 Mo. App. 614.

— Hon. Jos. A. Guthrie, Judge. (1) It is the duty of this court to set aside the order of the lower court in granting a new trial herein and to direct the trial court to re-instate the judgment as entered by it in said canse, for the reason that under the evidence in this case, there can be but one finding and that for plaintiff. Foley v. Harrison, 233 Mo. 506; Smoot v. Kansas City, 194 Mo. 532; Casey v. Trans. Co., 186 Mo. 232; Fitzjohn v. Trans. Co., 183 Mo. 78-79-80.

— Hon. Frank G. Johnson, Judge. (1) The rule is that while an eviction was originally a dispossession of the tenant by some agent of his landlord, or by failure of the latter’s title, it has now come to include any wrongful act of the landlord, either of commission or omission, which may result in a substantial interference with the tenant’s possession or enjoyment, in whole or in part. Delmar Investment Co. v. Blumenfield, 118 Mo. App. 308.

<p>Appeal from Jackson Circuit Court. — Ron. G. W. Stubbs, Special Judge.</p> <p>(1) The fact that the wife has contracted a venereal disease, and that she has a good character, will not justify the conclusion that she contracted the disease from her husband. Goodman v. Goodman, 80 Mo. App. 274; Glenn v. Glenn, 87 Mo. App. 377; Holthoeffer v. Holthoeffer, 47 Mich. 260; Homburger v. Homburger, 46 How. Pr. (N. Y.) 346; Ferguson v. Ferguson, 1 Barb. Ch. (N. Y.) 604; Mount v. Mount, 15 N. J. Eq. 162; Auld v. Auld, 16 N. Y. Sup. 803; Moore v. Moore, 135 N. Y. Sup. 425; 9 Am. & Eng. Ency. Law (2 Ed.), 758,- 14 Cyc. 610 and 699, note 12. (2) In a proceeding for divorce, the appellate court is not bound by the findings of the trial court, but, can, and must, examine the evidence and decide for itself whether the proper conclusion has been reached. Allfree v. All-free, 16.2 S. W. 650.</p>

— Hon. Harris Robinson, Judge. (1) The court erred in giving a peremptory instruction to the jury to find for the defendant and in refusing to set aside the nonsuit on plaintiff’s motion. Vol. 6, Cyc., p. 510; Lloyd v. Storage Co., 223 Pa. Rep. 148; Adams Express Co. v. Croninger, 226 U. S. 491;, Joseph v. Railroad, 157 S. W. 837.

<p>1. EQUITY: Injunction: Contracts for Paving. The plaintiffs sought to enjoin the defendants from entering into a paving contract for the paving of a public street in city of Chillicothe. The city was going to pave a certain street with a patented concrete material other than the regular • concrete mixture. The plaintiffs contended that the patented material did not belong to the class exempt from the statute mandate, that the contract shall be let only after the prescribed opportunity for competitive bidding had been given. Held, that, the councilmen convinced themselves that the patented process was meritorious and was not a mere device to enhance the cost of concrete.</p> <p>2. MUNICIPAL CORPORATIONS: Public Improvements: Competitive Bidding. Where the city charter provided for letting the contract for a street improvement to the lowest and best bidder, the contract must be let in conformity to such provisions, and, if not so let, will be held void, as will also the subsequent assessment. But where there is a patented article, or one held in monopoly, which in the eye of the authorities is of exceptional value and superiority that it would be a public injury to be deprived of it, it may be required to be used; the courts having concluded that lawmakers did not intend to prevent a city from securing material thus held.</p> <p>3. -: -: Expert Witnesses: Difference of Opinion. Where there is a difference of opinion among experts regarding the kind and character of material to be used in paving public streets, much discretion must be left to the city council of the cities selecting the material and where they have acted in good faith, and without fraud, courts are generally slow to interfere with their discretion.</p>

<p>T. CONVERSION: Sales: Common Carriers: Vendor and Vendee.. Where a fraudulent vendee sells and delivers the property acquired by fraud to an innocent purchaser before the vendor discovers the fraud and elects to rescind the sale, the title thus acquired by the plaintiff, an innocent purchaser, coupled with the actual delivery of the property to the defendant for its-benefit, cuts off the right of stoppage in transitu which necessarily died with the close of the original transportation. And having clothed the fraudulent vendee with the apparent legal title and the jus disponendi of the property, the original vendor could not exercise its rights to rescind and to reclaim the property as against a good faith purchaser for value from such, fraudulent vendee.</p> <p>2. -:-: Stoppage in Transitu. The right of stoppage in transitu is but an extension of the vendor’s lien on the goods for the payment of the purchase money and continues until the goods have actually reached the buyer, or under circumstances equivalent thereto.</p>

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

<p>Appeal from Randolph Circuit Court. — Eon. A. E. Waller, Judge.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Bees Turpin, Special Judge.</p>

<p>1. EXECUTIONS: Insane Persons. Under Sections 498, 499 and 500, R. S. Mo. 1909, claims against an insane person must be presented to his guardian and be allowed in the probate court. And a judgment obtained in the circuit court upon service had before the adjudication of insanity, to which the guardian appeared and made answer and defended the suit, must be presented to the probate court for allowance against the insane person’s estate. An execution cannot issue thereon from the circuit court.</p> <p>2. -: -: Execution Ordered but not Issued: Moot Question. An order of the court directing execution to issue on the judgment is a judicial declaration that the plaintiff in that case is entitled to immediate and full satisfaction of the judgment out of any property belonging to the insane person. And the fact that no execution has actually issued does not make the guardian’s right to have the order set aside a mere moot question.</p> <p>3. -: Order Appealable From. An order of court, made after judgment and at the same term, directing execution to issue thereon is a “special order after final judgment” and is therefore appealable under Section 2038, R. S. Mo. 1909.</p>

<p>Appeal from Nodaway Circuit Court. — Now. Arch B, Davis, Judge.</p>

<p>NEGLIGENCE: Automobiles: Contributory Negligence: Instructions. One in an automobile driving on a street in a city upon which were street cars stopped at the curb to let a friend out. ' Then in starting up some wagons were in.the way making it necessary to turn onto the car track to pass. When this was done he looked back and saw a street car about 500 feet back coming in the same direction. In a moment the car crashed into the rear of the automobile without warning. It was held that plaintiff was not guilty of contributory negligence as a matter of law. It was also held, that if guilty, it was proper tb submit to the jury whether the motorman saw his peril, or might have seen it, in time to have saved him.</p>

— Mon. Wm. D. Rusk, Judge. (1) Where a person who has maintained intimate relations with the grantor or has drafted qr advised the terms of the instrument, a presumption of… Held: but is essentially equitable, and the questions presented by the record should be reviewed by this court as chancellors. Crow v. Estate of Lutz, 175 Mo. App. 427; In re Ford, 157 Mo. App. 141; Stephens v. Cassity, 104 Mo. App. 210; Ladd v. Stephens, 147 Mo. 319; McClelland v. McClelland, 42 Mo.

<p>1. MALICIOUS PROSECUTION: Facts Necessary to be Shown. In a suit for malicious prosecution the burden is on plaintiff to show affirmatively that defendant instituted the prosecution maliciously and without probable cause.</p> <p>2. -: -: Demurrer to Evidence. Where it is claimed that a demurrer to the evidence should have been sustained, the appellate court cannot interfere if there is any substantial evidence to support the verdict. Such demurrer can be considered only from the viewpoint of plaintiff’s evidence.</p> <p>3. -: -: -: Probable Cause: Jury Question. Where the facts as to probable cause or the want of it are disputed, the question of probable cause cannot be taken from the jury. In such case it is for the .jury to determine the question of probable cause under proper instructions.</p> <p>4. -: -: -: -: -. The prosecution which plaintiff claims was malicious was upon the charge of . having embezzled sums collected from various customers to whom plaintiff sold milk as defendant’s agent. The crucial question involved in this charge was whether plaintiff acted as defendant’s agent or bought the milk of defendant and retailed it for himself. If the latter was the arrangement between them, there could be no embezzlement. Plaintiff began selling milk by the latter method under a written contract with defendant. Defendant claimed that afterward the contract was changed by oral agreement whereby, after a certain date, plaintiff sold as his agent. The alleged embezzlement occurred after this date. Defendant, learning that plaintiff had suddenly and secretly left the State, after collecting and appropriating money collected from milk customers, laid the facts before the prosecutor and told him that the written contract had been orally changed. The prosecutor advised that embezzlement had been committed, and defendant had plaintiff arrested, brought back, and prosecuted. He was acquitted. In a suit for the prosecution as malicious and also in the criminal case, the question of whether the contract had been changed was in dispute. Whether it had been changed or not was a question clearly within defendant’s knowledge. He could not have been misled, as to this, by appearances. If he knew it had not, and yet told the prosecutor it had, then not only was there a lack of probable cause, but, in such case, the institution of the prosecution could be regarded as tending to show malice, since an intentional institution of a prosecution with knowledge that it is without legal justification constitutes malice. There being evidence pro and con on the vital question involved as to a fact, namely, the change in the contract, the jury was the proper and only arbiter thereof, and its finding cannot be disturbed by an appellate court.</p> <p>5. -: -: -: -: Advice of Counsel. Before advice of counsel can be relied upon as a shield, whether such advice goes to probable cause or only to negative malice, it must be shown that there was, not only a full disclosure of all facts known or easily ascertainable, whether known by defendant to be material or not, but there must be a truthful disclosure thereof.</p>

-— Hon. Fred Lamb, Judge. (1) This being a penalty statute, it must receive strict construction and nothing taken by intendment, and plaintiff must bring himself fully within all the provisions of the statute before he can recover. Bradshaw v. Telegraph Co., 150 Mo. App. 711; Eddington v. Telegraph Co., 115 Mo. App. 93; Rixke v. Telegraph. Co., 96 Mo. App. 406; Moore v. Telegraph Co., 164 Mo. App. 165; Adcox v. Telegraph Co., 171 Mo. App. 331.

— Ho». Wm. D. Rush, Judge. (1) The court erred in overruling defendant’s application for a continuance. Nichols v. Grocer Co., 66 Mo. App. 321; Alt v. Grosclose, 61 Mo. App. 409.

— Now. A. G. Southern, Judge. (1) To constitute a set-off the demand must be in the nature of a debt, and the term debt is defined by most of the appellate courts of the country. A set-off is a cross debt. Nat’l Handle Co. v. Hoffman, 140 Mo. App. 642; Zerbe v. Railroad, 80 Mo. App. 418; Pomeroy Code Remedies (4 Ed.), p. 120.

— Eon. Thos. J. Seehorn, Judge. (1) Where a contract is induced by fraud the defrauded party can, upon discovery of the fraud, rescind the contract. Miller v. Crigler, 83 Mo. App. 401, and cases there cited. (2) Such a rescission is a rescission in toto and may be interposed as a defense in any action brought on the contract. Page on Contracts (1905), Section 136 ; Cecil v. Burger, 32 Mo. 462; Zang. v. Adams, 23. Colo.. 408, S. C. 58 Am.

Son. Jos. A. Guthrie, Judge. (1) The court erred in overruling the defendants’ objection to the question asked the witness, Doctor Manko, as follows: “Q. Now, where the bone in the nose is involved in the part where you have spoken of the bone of the nose itself, what is necessary to do when polipi are taken out? Russ v. Railway Co., 112 Mo. 48; Benjamin v. St. Ry. Co., 50 Mo. App. 610.

<p>1. NEGLIGENCE: Catch Basin: Iron Lid. Where a city maintains a catch basin at the curb by the side of the street, it is its duty to see that an iron lid fitting onto the top should be in such secure condition as not to tip with one who may casually step upon it, and thereby let his leg down into the basin and injure him.</p> <p>2. PRACTICE, TRIAL: No Instructions. While it is .improper practice for plaintiff’s lawyer to submit his case without instructions, yet if he does so it is not reversible error.</p> <p>3. ¡IMPROPER ARGUMENT: Motion for New Trial. Objection and exception to argument of counsel should be preserved in motion for new trial.</p>

<p>Appeal from Jackson Circuit Court. — Hon. E. E. Porterfield, Judge.</p>

<p>1. NEGLIGENCE: Municipal Corporations: Reasonably Safe Streets: Instructions. It is error to tell the jury that, as a matter of law, a sidewalk is reasonably safe whenever it can he safely passed over by a person who is in the exercise of reasonable and ordinary care. The mere fact that another person, in the exercise of ordinary care, passed over it and escaped injury is no test of whether the sidewalk is reasonably safe. Whether a given street is safe is a practical question to be determined by the jury in each case from all the particular circumstances.</p> <p>2. -: Instructions: Contributory Negligence. An instruction should not submit the question whether plaintiff could have stepped over an obstruction complained of as the test of whether she was exercising ordinary care. The ability to step over is only a circumstance to he considered by the jury in determining whether plaintiff was negligent or not.</p> <p>3. PRACTICE: Appellate: Petition Stated but not Set out in Abstract of Record Proper. Where the fact that the petition was . filed is stated in the record proper hut the contents thereof are not set forth therein hut reference is made to the contents as preserved on a certain page in the hill of exceptions, such-failure to set out the contents in the record proper is not fatal where no matters preservable .only in the record proper are complained of by appellant and the allegations of the petition are not necessary to be known in order to pass upon the questions involved. As the errors complained of consist wholly of matters of exception which can he determined without regard to the contents of the petition, a failure to set out the petition in full in the abstract of the record proper will not work a dismissal of the appeal.</p> <p>4. -: Abstracts of Record: Experiments. The proper method for preparing a record for the appellate court has been plainly-marked out and should be followed for the sake of a feeling of security if for no other reason. The rules governing the presentation of a case in the appellate court are not the result of senseless arbitrary caprice but were established to facilitate the dispatch of business, and they accomplish that purpose when obeyed. ' When the beaten path is departed from not only is the client’s cause endangered but the work of the court is greatly increased</p>

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

— -How. Jos. A. Guthrie, Judge. (1) The city was not negligent as a matter of law in maintaining the wall ajbout the fountain in which the son of the plaintiffs was drowned. Carey y. Kansas City, 187 Mo. 715; Linebnrg v. City of St. Paul, 71 Minn. 245. (2) The negligence of parents in an action for the death of a child will bar their recovery. Koons v. St. Louis, 65 Mo. 592; Wiese v. Eemme, .140 Mo. 289; Nleff v. Cameron, 213 Mo. 363; Berry v. Eailroad, 214 Mo. 603.

— Hon. O. A. Lucas, Judge. (1) Tbe doctrine of undisclosed principal bas no application to tbe facts of tbis case, and instruction No. 2 was an erroneous statement of tbe law as applied. to tbe facts in evidence. Packing and Produce Company v. Tucker, 8 Mo. App. 95; Scbepflin v. Dessar, 20 Mo. App. 569; Sessions v. Block, 40 Mo.

— Hon. E. E. Porterfield, Judge. (1) The defendant’s motion to vacate the judgment contains grounds of surprise, accident, mistake, error of fact, fraud practiced in the act of procuring the judgment, and total failure of proof. The motion takes the place of the common law writ of error coram nobis.

— Hon. B. G. Thurmond, Judge. (1) Under a'general employment, the master has the right to direct his employees to do any and all things within the scope thereof. He may entrust a servant to perform ordinary and simple duties incidental to his employment and resting on his knowledge and skill. Modlagl v. Iron & Foundry Co., 248 Mo. 587; Henson v. Stave Co., 151 Mo. App. 243; Cole v. Jones, 159 Mo. App. 472.

<p>1. DEEDS OF TRUST: Satisfaction: Penalty for Failure to Release. Defendant held a deed of trust on B’s farm the annual interest on which was secured hy coupon notes negotiable in form. B defaulted in the payment of certain interest represented by coupons for those years. To save his farm from foreclosure B applied.to a banker for money to pay said coupons. The banker agreed to advance the money provided the coupons would be assigned to him and carry with it the security afforded by the deed of trust, and took a chattel mortgage as additional security. The banker sent the money direct to the defendant and received the coupons duly assigned to him without recourse. Defendant also notified B of this fact and the latter made no objection. Some six months later B’s farm was sold under foreclosure of a second deed of trust, and plaintiffs became the purchasers. They paid off the first deed of trust and demanded a release. Defendant executed a release except as to the coupons which had been assigned. Plaintiffs thereupon sued for the penalty. There was nothing to show that defendant had any notice that the coupons were not rightfully assigned to the banker. Held, that defendant was not liable to the penalty provided by the statute for failure to release.</p> <p>2. -: -: Penal Statute. A penal statute must be strictly construed and can be applied only to such cases as come clearly within its provisions and manifest intent.</p> <p>3. -: Coupons: Negotiable Instruments. Coupons in the form of negotiable promissory notes are themselves negotiable and when detached from the bond or note to which they pertain, they possess all the attributes of commercial paper. And when negotiated, carry with them the security given by the deed of trust securing the original bond, pm ianto.</p>

<p>1. WITNESSES: Veracity: Impeachment. Where there is no ground for surprise in the testimony of a witness called by a party and there has been no deception such party has no right to discredit the veracity of such witness.</p> <p>2.. NEGLIGENCE: Personal Injuries: Street Car: Other Accidents. In an action for personal injuries in falling from a street car by reason of a sudden starting when the passenger was attempting to alight, it is error to admit evidence of other . accidents on cars in charge of other servants of defendant.</p>

<p>1. ACCIDENT INSURANCE: Disability: “Immediately,” Meaning of. An accident insurance policy provided that total disability should immediately, continuously and solely follow the accident in order to make a valid claim under the policy. It was helé that “immediately” did not mean instantaneously, hut that it did limit the time in which the total disability should become fixed.</p> <p>2. -: -. An accident insurance policy provided that total disability should immediately, continuously and solely follow the accident. The insured was injured on the 6th of August and continued his work the balance of that day and for six days thereafter, except the 8th, when he stayed at home. On the 16th he was operated on for appendicitis and on the 21st he died. It was held, that disability did not immediately follow the injury and that there was no liability under the policy.</p>

— -Ho». Jas. H. Slover, Judge. (1) The bond sued on is a penal bond of indemnity, and plaintiff’s damag’es are the limit of liability. Chew v. Kellar, 171 Mo. 223; Utter v. Sidman, 170 Mo. 294; Meyer v. Christopher, 176 Mo. 594; County of Johnson v. Wood, 84 Mo. 509; Burkes v. City of Kansas, 34 Mo. App. 580; Calloway v. Henderson, 130 Mo. 86; Hammer v. Breidenbach, 31 Mo. 49; Thompson v. St. Charles Co., 227 Mo. 220 ; Boulware v. Crohn, 122 Mo. App. 571.

<p>1. CONTRACTS: Partnership. A contract whereby one employs another as superintendent of a plant and agrees to pay as compensation one-half of the profits, if any, of the business of the plant does not create a partnership. It is merely a contract for the services of another and providing that the profits shall measure the compensation to be paid. Mere participation in profits does not constitute a partnership; it is a question of intention to be determined by the triers of the facts from the circumstances. But where the contract is in writing and the intention is clearly expressed it is a question of law for the court.</p> <p>2. PRACTICE: Referee: Exceptions to Referee’s Report. Where the exceptions to the referee’s report complain of alleged arbitrary conduct on the part of the referee and evidence is offered to show such conduct, it is error to overrule the exceptions without hearing the evidence in support of the charges.</p> <p>3. -:-: Defects in Record of Appointment. Although certain formalities required by the statute in the appointment of a referee are not shown, yet where the parties without objection appear before the referee and submit the matter to him it is too late on appeal to complain of such omissions and defects.</p> <p>4. PLEADING: Petition: Erroneous Prayer. Although a petition proceeds upon the theory of a pártnership existing between the parties and prays for an accounting, yet, when it contains sufficient allegations to support the cause of action created by the contract sued on, the case will not be reversed outright upon a holding that no partnership was created, but will be remanded for a trial upon the proper theory. The prayer, while erroneous, is no part of the petition.</p> <p>5. APPELLATE PRACTICE: Defects in Record. Under rule 26 many things which prior to that time were fatal defects can no longer be considered so. And where it is claimed that there is a variance between the facts alleged in the printed abstract and the record as actually made, a reference to the certificate of the clerk filed in this court will not prove the variance alleged by respondent when the certificate is silent upon the matter in controversy and the matter is such that the clerk is not required by the statute to certify to it.</p>

<p>Appeal from Callaway Circuit Co art. — Ho». Z>. H. Harris, Judge.</p> <p>(1) The court erred in refusing defendant’s peremptory instruction. G-alm v. Railroad, 113 Mo. App. '591; Overton v. Railroad, 111 Mo. App. 613. (2) Error in plaintiff’s instruction No. 1. Politowitz v. Telephone Co., 115 Mo. App. 57; Logan v. Railway, 183 Mo. 582; Caffiery v. Coal Co., 95 Mo. App. 174. (3) Error in measure of damage instruction. Steinman v. Transit Co., 116 Mo. App. 673; Prendenville v. Transit Co., 128 Mo. App. 596; Duke v. Railroad, 99' Mo. 347; Madden v. Railroad, 50 Mo. 682.</p> <p>(1) The court properly overruled defendant’s peremptory instruction. Camp v. Railroad Co., 94 Mo. App. 272; Bowen v. Railway Co., 118 Mo. 541; Hance v. Railway Co., 56 Mo. App. 476; Callahan v. Railway Co., 170 Mo. 495: (2) Plaintiff’s instructions Nos. 1 and 4, although not correctly phrased, afford no grounds for reversible error. Barry v. Railway Co.,, 98 Mo. 62; "Williams v. Mitchell, 112 Mo. 300 ; Brown v. Railway Co., 20 Mo. App. 427; Bassett v. Clover, 31 Mo. App. 161; Walter v. Cathcart, 18 Mo. 256. (3) Plaintiff’s instruction No. 2, defining the measure of damages, does not contain reversible error. Abbitt v„ Transit Co., 104 Mo. App. 534; Sherwood v. Railway Co., 132 Mo. 345. (4) The judgment is not excessive. Norton v. Kramer, 180 Mo. 536; Franklin v. Fisher, 51 Mo. App. 345; Wills v. Railway Co., 44 Mo. App. 51.</p>

<p>1. NEGLIGENCE: Automobiles: Humanitarian Rule. Where a street car collided with an automobile crossing the track at a street intersection, plaintiff suing therefor on the humanitarian doctrine is not entitled to go to the jury unless there is evidence tending to show that after the motorman knew or ought to have known that the automobile was going into danger, he had reasonable time to avoid the collision and negligently failed to do so.</p> <p>2. -: -: Crossing: Assumption That Person Will not go Into Known Danger. Where the occupants of the automobile gave every indication to the motorman that they were aware of the danger as the automobile approached the track ■ and still in a place of safety, the motorman had a right to assume that it would stop and not go into danger, and having that right he was not required to stop or reduce the speed of his car until the contrary became manifest. And unless the contrary manifested itself in time to enable him by the exercise of ordinary care to stop or reduce the speed of his car with safety to his passengers and thereby avoid the collision, defendant cannot be held liable. And the burden of making out a case is on plaintiff.</p>

— Ho». Kimbrough Stone, Judge. (1) The court committed reversible error in admitting evidence of absence of warning lights and barriers on nights other than and remote from the-time in question. Schlinski v. St. Joseph, 156 S. W.. 823; Mehan v. St. Louis, 217 Mo. 35; Bailey v. Kansas; City, 189 Mo. 511; Goble v. Kansas City, 148 Mo. 475 ;; Caleaterra v. Iovaldi, 123 M'o. App. 352; Horr v. Railway Co., 156 Mo. App. 654; Smart v. Kansas City, 91 Mo. App. 586.

<p>Appeal from Jackson Circuit Court. — Now. C. A. Laivler, Special Judge.</p>

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

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

<p>1. REAL ESTATE BROKERS: Commission: Question for Jury» Plaintiffs, who were real estate brokers, were requested by defendants to procure a trade for their lands. Plaintiffs did so' and assisted defendants in consummating the trade. Held, that this, if believed by the triers of the facts, entitled plaintiffs to a reasonable commission for their services. And there being evidence of such facts, plaintiffs were entitled to go tO' the jury.</p> <p>2. PLEADING: Petition: Explicit Contract or Quantum Meruit.. Where a petition declares on an express or explicit, sometimes, called a special contract, recovery cannot be had as upon a quantum meruit, but the petition in this ease is examined and: held to be on a quantum meruit.</p> <p>3. -: Misjoinder of Parties: Husband and Wife: Demurrer to Evidence. A married woman under our statutes can sue and be sued with or without joining her husband. Obligations which at common law were joint only are, under our statutes, joint and several, and suit may be brought upon joint obligations or assumptions, and plaintiff shall not be nonsuited by reason of failure to prove that all defendants are parties to the contract, but may have judgment against such of them as lie shall prove to be parties thereto. Failure of proof as to one of such parties would authorize the sustaining of a demurrer as to that party but not as to all the defendants.</p>

<p>Appeal from Jackson Circuit Court. — Eon. Frank G. Johnson, Judge.</p>

<p>Appeal from Jackson Circuit Court. — Ho». Jas. E. Goodrich, Judge.</p>

— lion. B. II. Dyer. Judge. (1) The court erred in excluding legal and proper testimony offered by defendant. (2) The court should have given defendant’s instruction directing a verdict for the defendant offered at the close of the plaintiff’s testimony. Mook v. Tarr, 127 Mo. App. 311. (3) The court admitted error in giving* defendant’s instruction number two. 1 Am. and Eng. Ency. of Law, pp. 1119’-1120'; Ashley v. Jennings, 48 Mo. App. 146; Anderson & Co. v. Stapel, 80 Mo.

— Hon. Nat M. Shelton, Judge. (1) The mere fact that the note is payable after the death of the maker does not affect its validity. The date of payment is fixed at a time which is bound to occur and. this satisfies the law. Story on Bills, Sections 47, 50, 51; 4 Am. & Eng. Ency. of Law (2 Ed.), p. 92; Bank v. Skeen, 29 Mo. App. 115, 101 Mo. 683. (2) The note sued upon is a negotiable instrument, and it therefore imports a consideration.

— How. Nat M. Shelton Judge. (1) Under the law respondent whs not entitled to recover. His evidence and the averments of his petition show that he never sold the property which he claimed that he was authorized to sell. The fact that the same property was afterward sold by appellants along with other property does not entitle respondent to compensation. Tooker v. Duckworth, 107 Mo. App. 231; Cambie v. Crether, 108 Mo. App. 340; Duncan v. Hills, 155 Mo.

— Mon. James D. Barnett, Judge. (1) The case having been settled by the pleadings and no stipulation to dismiss case at cost of defendant* the only authority the circuit court had, was to dismiss the case, and had no right under the pleadings to arbitrarily dismiss case at defendant’s costs and direct a judgment to be entered against him.

— Hon. B. H. Dyer, Judge. The service of the writ directed to the sheriff of Red River county by a deputy sheriff is valid because (a) A direction of a writ to a sheriff is broad enough… Held: a deputy sheriff can only act in the name of his principal, the point is answered by the statute, which provides that any officer authorized by law to serve process within the territory may serve. That is, he may serve in his own right, so far as jurisdiction in Missouri is concerned.

—Hon. B. G. Bcmney, Judge. (1) The demurrer to the evidence should have been sustained, because: (a) There is an entire failure of proof that the pin maul was furnished to plaintiff by defendant. Blundell v. Mfg. Co., 189 Mo. 565; Smith v. Light & Power Co., 148 Mo. App. 572; Berry v. Railway, 124 Mo. 264.

— Eon. R. O. Ranney, Judge. (1) Plaintiff’s grounds of negligence is that the defendants (1st) erected, kept and maintained the clipping blocks in such close proximity to the employees and caused the chipping to be done so close to them that their place of work was not reasonably safe; (2nd) that defendants failed, neglected to erect any guards, fenders or barriers to arrest the flying pieces of iron.

— Eon. William I. Ragland, Jndge. (1) (a) It is well settled that the oral testimony with respect to Judge McVeigh’s declaration of his intention was incompetent, for declarations of a testator as to his intentions with respect to the making of his will are inadmissible to show his intention to create a trust, as such declarations would be in effect the establishment of a testamentary disposition by parol.

— Now. William T. Ragland, Judge, (1) It is tbe duty of tbe board of arbitrators to consider tbe necessity of tbe proposed change. R. S. 1909, Sec. 10837. (2) A valid election upon sufficient petition and notice is necessary in each district to be affected by the proposed change before board of arbitrators has authority to consider an appeal. School District v. Smith, 90 Mo. App. 215.

<p>Appeal from Pike Circuit Court. — Row. David R. Eb'y, Judge.</p>

— Ron. Jmnes D. Barnett, Judge. (1) Divorce is a ] egal right, the granting or withholding of which is in no way dependent on the discretion of the trial court. Morris v. Morris, 60 Mo. App. 86; Parnell v. Parnell, 2 Phill. 158-; Crump v. Morgan, 38- N. C. 91; Deschodt v. Deschodt, 59 Mo. App. 102; Baney v. Baney, 128- Mo. App. 167.

Louis City Circuit Court.— Eon. James E. Withrow, Judge. (1) An agreement to purchase real estate is as much within the Statute of Frauds as an agreement to sell it. Brown on Statute of Frauds, Sec. 263; Schlanker'v. Smith, 27 Mo. App. 516; Culligan v. Wingerter, 57 Mo. 241. And if suit for specific performance cannot be maintained neither can a suit for damages for a breach of the contract. Culligan v. Wengerter, 57 Mo. 241; Andrews v. Braughton, 78 Mo.

— Hon. James D. Barnett, Judge. (1) Appellant’s demurrer to the evidence, offered at the close of the plaintiff’s case, and again at the close of all the evidence, should have been given, and the court erred in submitting the case to the jury, because: (a) The evidence shows that defendant’s agents and employees then operating the said freight train were not guilty of negligence as a matter of law.

— How. James D. Barnett, Judge. (1) The demurrer to the evidence should have been sustained, because: (a) The evidence shows that the deceased was guilty of contributory negligence. Stillson v. Eailroad, 67 Mo. 671; Hudson v. Eailroad, 101 Mo. 13; Gurley v. Eailroad, 104 Mo. 211; Corcoran v. Eailroad, 105 Mo. 399; Stites v. Knott, 197 Mo. 684; Wherry v. Eailroad, 64 Minn. 415; O’Mara v. Canal Co., 18 Hun.

— Ron. B. R. Dyer, Judge. (1) The court erred in refusing to direct a verdict for plaintiff. Plaintiff’s paper evidence made a prima facie case and defendant failed to show a prior existing lien on or title to the property. Turner v. Langdon, 85' Mo. 438. The note was paid off before assignment to Joe. Dunlap' v. Kelly, 115 Mo. App. 610; 22 Cyc., p. 1536', par. A, subd. 1 and 2. (2) The court erred in giving defendant’s instruction No. 3.

— Hon. David H. Eby, Judge. (1) By a casual inspection of the complaint on which defendant was tried it will be observed that it does charge the violation of a city ordinance of the City of Louisiana, and therefore, defendant’s motion to quash was properly overruled. City of St. Louis v. Bippen, 201 Mío. 528; City of G-allatin v. Panin, 128 Mo. App. 324.

— Hon. William T. Ragland, Judge. (1) The allowance to a wife of attorney fees, suit money and alimony pending-appeal is.not dependent upon the result of a divorce suit in the trial court. 2 Bishop on Marriage and Divorce (6 Ed.), Chap. 27; Bev. Stat. of Mo., 1909, Sec. 2375; Libbe v. Libbe, 166 Mr. App. 240; Motley v. Motley, 93 Mo. App. 473; Mahn v. Mahn, 70 Mo, App. 337; Bosenfeld v Bosenfeld, 63 Mo.

— No». B. H. Dyer, Judge. (1) The evidence fails to show any contract made between defendants and deceased in Montana, and fails to show a gift-and delivery of decedent’s money or property in Montana, as alleged in defendants ’ answer. Walker v. Boknannan, 243 Mo. 119.

— Rom. Nat M. Shelton, Judge. (1) The court erred in sustaining thé motion for, and granting plaintiff, a new trial. No exceptions were saved by plaintiff to the court’s action in sustaining defendant’s demurrer to the evidence. The action of a trial court on demurrer to the evidence is not reviewable on motion for new trial unless exceptions are saved at the time by the party adversely ruled against. Lewis v. Mining Co., 199 Mo. 463; Montei v. Railroad Co., 130 Mo.

— How. C. B. Baris, Judge. Having made it possible by tbeir bond for Henry R. English, as “authorized to perform the duties of cashier,” to have access to the vaults and handle the funds of the bank, the defendant sureties should be held responsible for his clearly established and admitted defalcation. They are estopped to deny the recital in the bond. Brewing Co. v. Niederweise, 28 Mo. App. 233; Hadley v. Fulbert, 73 Mo. 34; State ex rel.

— How. James D. Barnett, Judge. We respectfully submit that the instruction was eminently correct, that the court committed no error in giving it, but did commit error when it granted a new trial on account of that instruction. Realty & Investment Co. v. Deere & Co., 208 Mo. 66. In an action for a private nuisance, the person injured is not required to show any special- damage to himself.