Volume 182 — Missouri Appeal Reports

Two . — Hon. David E. Blair, Judge. (1) United States deputy special officer, T. E. Sisson, bad lawful right to seize said liquor and take it out of tbe possession of tbe defendant and tbe defendant on that account is not liable for tbe loss of same. Sec. 2140, U. S. R. S.; Sec. 5750, Pierce’s U. S. Code; Fed. Statutes Annotated, Yol. 3, p. 386'.

Appeal fr.om Wright County Circuit Court. — Eon. G. E. Skinker, Judge. (1) The petition does not state a cause of action against defendant L. D1. Pool as a joint tort-feasor. It is not enough to charge that he “had full knowledge and gave his consent” to the acts of his co-defendant.

Two . — Hon. David E. Blair, Judge. (1) The court erred in refusing the testimony of Mr. Milton shown on pages 196 and 197 of the record to the effect that the mill as he found it when called in by Yan Hoos© bad not been completed in good and workmanlike manner and that the work on said mill had not been done in a good and workmanlike manner and that the mill as he found it would not clean ore. 3 Wigmore on Evidence, see. 1923; Ferguson v. Hub-bell, 97 N. Y. 513; Taylor v.…

— Ho». W. N. Evans, Judge. (1) By retaining an article purchased by contract an unreasonable time, tbe vendee waives all defects. He must act witbin a reasonable time or he will have been deemed to have waived all defects and defenses when asked to pay same. Taylor v. Short, 107 Mo. 384; Johnson-Brinkman Co. v. Railroad, 52 Mo. App. 408.

— Ho». Frank Kelly, Judge. (1) Tlie memorandum made by Judge Ranney in his office docket was a part of the res gestae and should have been admitted in testimony. Ereenleaf on Evidence, Yol. 1 (12 Ed.), Sec. 108a. (2) The burden of proof rests upon the person who takes the affirmative. City of St. Louis v. Arnot, 94-Mo. 275; Berger v. Storage Co., 136 Mo. App. 36; Stephens v. Assurance Co., 139 Mo. App. 369; Bathe v. Insurance Co., 152 Mo. App. 87.

— Non. Guy ' D. Kirby, Judge. . (1) The street grades were duly established. Clop-ton v. Tyler, 49 Mo. App. 124; Excelsior Springs v. Ettenson, 120 Mo. App. 215, 226. (2) The tax for excavations at grade was authorized and the published resolution sufficient. Bridewell v. Cockrell, 122 Mo. App. 196, 202; Jaicks v. Merrill, 201 Mo. 97,109; Bank v. Shewalter, 153 Mo. App. 635, 637; Hulin v. Stone Co., 87 Mo. App. 349, 359; Carthage v. Badgley, 73 Mo.

Division Number One. — Hon. Joseph D. Perkins, Judge. (1) A partnership is a contract of two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions. Cyc.

— Eon. L. B. Woqdside, Judge. (1) If a petition states no cause of action, sucli question can be raised in the Appellate, Court for tlm first time, and a judgment thereon should be reversed. McQuitty v; White, 218 Mo. 586; Davis v. Jacksonville Line, 126 Mo. 69; Hoffman v. McCracken, 168 Mo. 343.

<p>MANDAMUS: County Officers: Auditing Books: Right to Possession of Books. Mandamus denied a judge of the county court to compel the delivery of the county treasurer’s books for inspection as provided by section 3768, R. S. 1909, where such books had been audited by the State Auditor and no beneficial results could accrue to the county or relator from such inspection, and where it does not appear that the relator was' denied the right claimed after the State Auditor had completed his work and no demand for the books .after that time was shown.</p>

<p>1. OFFICERS: Auditing Books: Statutory Provisions: Right tc Possession of Books. An examiner appointed by the State . Auditor under the provisions of Laws of 1913, page 765, hela entitled to the possession and rightfully in possession of a county collector’s books on tbe day of the filing with the auditor of the petition of the taxpayers for the auditing oi the books, though the” examiner had gone to the county seal prior to that time in anticipation of the filing of such petition.</p> <p>2. COUNTY OFFICERS: Auditing Books of: Authority for: Possession. Even if under the provisions of section 3781, R. S. 1909, a county court has authority to audit and examine the books of a county collector, notwithstanding Laws of 1913, page 765, authorize the auditing of such books by examiners appointed by the State Auditor upon request of the county court ■or three hundz’ed taxpaying citizens, yet the county court was not entitled to the possession of the books for that purpose where the books were in possession of an examiner appointed by the State Auditor pursuant to petition as provided by Laws 1913, page 765.</p> <p>3. MANDAMUS: Books of County Officers: When Mandamus Will Not Lie to Compel Delivery. County court held not entitled to mandamus to compel delivery of county officers’ books for auditing purposes, where an. examiner appointed by the State Auditor, under the Laws of 1913, page 765, was rightfully in possession thereof at the time demand was made and after the examiner had completed his woz-k the demand was not renewed.</p> <p>4. OFFICERS: Books of: Statutory Provisions for Auditing. The provisions of Laws 1913, page 766, comprehend the entire field of providing for the examination of county records, regardless of whether the county court or the required number of taxpayers is responsible for the examination; and that part of section 3871, R. S. 1909, which incidentally gives county courts power to employ private accountants is by the Laws of 1913, page 766, repealed. (Per FARRINGTON, J.).</p>

Appealed from Butler Circuit Court. — Eon. J. P. Foard, Judge. (1) The defense that a foreign corporation has not complied with the laws of the State where the suit is brought and for that reason cannot maintain a suit in the courts of that State, is an affirmative defense, and the defendant, if it relies upon said defense, must state all the facts which are necessary to bring its defense within the statute. It is not incumbent upon a foreign corporation to plead compliance.

Division No. Two. —Hon. David E. Blair, Judge. (1) It is not sufficient to say in the petition that the deed was fraudulent; there must be a statement of facts. Burnham v. Boyd, 167 Mo. 185; Loehr v. Murphy, 45 Mo. App. 597. (2) A general allegation of fraud is not sufficient. Reed v. Bott, 100 Mo. 62; Wilkinson v. Goodwin, 71 Mo. App. 394; First National Bank v. Rohr, 138 Mo. 369.

— Ho». John P. Foard, Judge. (1) The trial court erred in peremptorily instructing, the jury to find the issues herein for the defendants. The contract' between the appellant Watkins Medical Company and the defendant Holloway is not violative of sections 10298, 10299, 103001 and 10301, Revised Statutes 1909, known as the anti-trust statutes ; nor is said contract void under the provisions of section 10307, Revised Statutes 1909.

— How. John P. Foard, Judge. The law requires circuit, courts to specify the grounds upon which a new trial is granted and where the court fails to so specify, it is presumed to have granted the new trial for one or more of the grounds set forth in the motion, but errors not complained of in the motion for a new trial, cannot be made the basis of an order granting a new trial, nor will such errors be considered upon appeal. Roman v. Boston Trading Co., 87 Mo.

— Hon. L. B. Woodside, Judge. (1) The inf ormation in this case was not verified as required by law, and the attention of the court was called thereto by a timely motion to quash, which motion was overruled and exceptions saved. The case should be reversed.

<p>1. CRIMINAL LAW: Verification of Information: Signature. No error was committed in permitting the prosecuting attorney to affix his signature to his affidavit on an information after the jury was sworn, since the signed affidavit of the prosecutor is not essential, the verification being good without such signature.</p> <p>2. LOCAL OPTION LAW: Violation of: Information: Sufficiency. An information charging that at the time of. the alleged violation of the Local Option Law “the provision of Article 3, Chapter 63, R. S. 1909, known as the Local Option Law was in full force and effect in the aforesaid county,” held sufficient, there being no necessity to charge that the same had been adopted since it could not. be “in full force and effect” unless it had been adopted.</p> <p>3. CRIMINAL LAW: Plea of Former Conviction: Different Offenses. Defendants, prosecuted for violation of the Local Option Law, pleaded a former conviction in bar. The plea was not good, since the evidence disclosed a different sale to a different individual from the one on which the former conviction was had.</p> <p>4. LOCAL OPTION LAW: Violation: Defense: Burden of Proof. Defendants, officers of a corporation, were prosecuted for a violation of the Local Option Laiw. The defense was offered that the sales were made to members only by a bona fide corporation within the holding of the Supreme Court in the case of State ex rel. v. St. Louis Club, 125 Mo. 308, 319. The burden was upon defendants to show that the organization came within the rule there announced.</p> <p>5. INDICTMENT AND INFORMATION: Averring a Negative: Burden of Proof. Even where it is essential in an information to aver a negative which lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party.</p> <p>LOCAL OPTION LAW: Violation: Exceptions: Evidence: Burden of Proof. Where the state submitted testimony tending to prove that the defendants sold intoxicating liquors in prohibited territory, the conclusion necessarily follows that the sale was unlawful and the burden is cast upon the defendants to prove such facts as would bring them within any exceptions claimed.</p> <p>7. LOCAL OPTION LAW: Violation: Sale of Intoxicants by Corporation to Members. An incidental sale of intoxicating liquors in local option territory, even by a bona fide incorporated club, or society, to a member thereof, is unlawful and a corporation cannot authorize an unlawful sale by its officers and agents.</p> <p>8. LOCAL OPTION LAW: Attempt at Eyasion: What not a Defense. A corporation cannot authorize an unlawful sale of intoxicating liquors by its officers and agents in local option territory; nor can such officer or agent shield himself from the penalties of the law because he acted for such corporation.</p> <p>9. INTOXICATING LIQUORS: Local Option Act and Dram Shop Law, 'Differentiated. The Local Option Act regards the traffic in intoxicating liquors as hostile to the community and as an evil to be extirpated, its prime object being to prohibit. The Dram Shop Law regards the traffic as lawful and beneficial when properly regulated and controlled.</p> <p>10.COURTS: Decisions of Supreme Court: Binding on Courts of Appeals. The last ruling of the Supreme Court is binding on a Court of Appeals and the Supreme Court alone can change its former ruling.</p>

— Hon. J. P. Foard, Judge. (1) Stout, expressly, and Biggs, inferentially, testify that they knew the first mortgage was given to the bank to secure the $525 note only, and Stout says he knew that it was not given to secure the $700 note in suit, therefore, they could not have been misled by any statement by the bank’s officers. 1 Bigelow on Estoppel 438; Acton v. Dooley, 74 Mo. 1. c. 67; Bales v. Perry et al., 51 Mo. 1. c. 452, 453, 454; Hequembourg v. Edwards, 155 Mo. 1.…

— How. Arch A. Johnson, Judge. (1) The court erred in refusing to submit the counterclaim of the defendant to the jury. Norris v. Letchworth, 140 Mo. App. 19; Norris v. Letchworth, 152 S. W. par. 421; and eases cited by court. (2) The court erred in directing the jury to find a specific sum as interest, but should have left the calculation to the jury. Corbett v. Mooney, 84 Mo.

Division No. Two. —Eon. David E. Blair, Judge. (1) The creditor's referred to in section 1, Laws 1913, page 163, commonly called “Bulk Sales Law,” include all creditors of the vendor and is not limited in its scope to the creditors who have sold and delivered merchandise to the debtor. People’s Savings B:ank v. Van Allsbnrg (Mich.), 131 N. W. 101; Shirt & Collar Co. v. Windham, 131 N. W. 102.

— Hon. W. S. C. Walker, Judge. (1) It was not error to permit the respondent, Whitaker, to testify about an agreement he had with Bay, agent of appellant, as to one and one-half cents per gallon commission, because defendant, appellant, admits in its answer that respondent sold 6892 gallons of oil upon which' he was to receive one and one-half cents per gallon. Deal v. Cooper, 94 Mo. 62; R. S. 1909, Sec. 2082; Cross v. Gould, 131 Mo.

— How. B. G. Banney, Special Judge. (1) The timber standing on the land being a part of the realty could only be conveyed by a deed in writing. Hence Miller and Fields acquired no title to the timber sued for and could convey none. Sec. 2783, R. S. 1909; Lead Co. v. White, 106 Mo. App. 230; Potter v. Everett, 40 Mo. App. 161; Andrews v. Corrigan, 30 M'o. App. 33.

— Hon. J. P. Foard, Judge. (1) Plaintiff, by waiving the contract and suing in tort, could not deprive the defendant of any right he would' have had if the suit had been brought on the contract. If the suit had been brought on the contract, defendant could have filed, as a counterclaim, any demand relating to the contract upon which he could have instituted an independent suit at the time. McCuin v. Frazier, 38 Mo. App. 63.

One.— Mon. Joseph D. Perhins, Judge. (1) Plaintiff’s liusband was guilty of such, contributory negligence as a matter of law as -debars her recovery. One who approaches a railroad crossing where Ms view and hearing are obstructed or interfered with must look and listen for the cars as soon as the obstruction is passed and a failure to do so will bar his right of recovery in case of injury.

<p>1. REVENUE LAWS: Definition. Revenue laws are those providing for the eolleetion and disbursement of monies by the county.</p> <p>2. -: Cases Involving Construction of: Jurisdiction in Supreme Court. Jurisdiction in cases involving the construction of the revenue laws of this state is vested in the Supreme Court by Section 12, Article 6, of the Constitution, which established the St. Louis Court of Appeals. The same provision is found in Article 6, Section 4, of the Amendment of 1884, which established the Kansas City Court of Appeals, and is therein declared to apply to such additional courts of appeals as may be by law created. Held, that the determination of a mandamus proceeding by a town against a county involving the construction of revenue provisions lay within the jurisdiction of the Supreme Court and not of the Court of Appeals. [Citing Sections 7100 and 7103, R. S. 1909, and 3805 and 7099, R. S. 1909, as amended by Laws of 1911, page 283.]</p>

Butler Circuit Court. — Ho». J. P. Foard, Judge. (1) The burden was upon the respondent to establish, by a preponderance of all the evidence, three facts: First, that Foister was inexperienced, unskillful, habitually careless and incompetent to operate the derrick and engine with reasonable safety to respondent and others employed around same. Second, that appellant either knew of such incapacity or by the exercise of ordinary care would have known of it.

— Hon. Frank ' Kelly, Judge. (1) Tie Federal Employers’ Liability Apt of April 22, 1908, is exclusive, and supersedes all State statutes regulating tie relations of railroad employers and employees engaged in interstate commerce. Act Cong., April 22, 1908-, 35 U. S. Stat. L. 65; Second Employers’ Liability Cases, (Mondou v. Railroad), 223 U. S. 1; 56 L. Ed. 327; Railroad v. Wulf, 226 IT. S. 570 ; 57 L. Ed. 355; Railroad v. Seale, 229 IT.

•Appeal from Schuyler Circuit Court. — No». Nat M. Shelton, Judge. It is averred in the petition that the correct freight rates between the points named as shown by the tariff and schedule on file in defendant’s station was twenty-nine cents per hundred pounds. The petition wholly fails to state a cause of action. The plaintiff and the defendants were each bound by the schedule rates, this being an interstate shipment.

— Hon. Jas. H. Slover, Judge. (1) Defendant was not liable unless the chauffeur Marsalis was acting in the line of his employment at the time of the accident. Dailey v. Maxwell, 152 Mo. App. 415 ; Long v. Nute, 123 Mo. App. 204; Evans v. Dike Automobile Company, 121 Mo. App. 266. (2) By the undisputed evidence the chauffeur was not acting within the sphere of his duty,” he was not acting in defendant’s behalf. Mockowik v. Railroad, 196 Mo. 550; Sowders v. Railroad, 127 Mo.

<p>Appeal from Jackson Circuit Court.— Hon. Harris Robinson, Judge.</p>

<p>NEGLIGENCE: Collision Caused by Driving on Wrong Side of Street: Sufficiency of Evidence: Jury Question. Plaintiff sued .for damages sustained by a collision with defendant’s wagon caused by tbe latter’s negligence in being on tbe wrong side of the street in violation of a, city ordinance. Tbe evidence showed that plaintiff was prevented from seeing defendant’s wagon was out of place until close upon it. Owing to tbe presence of a street car and an automobile on tbe street at tbe point, there seemed to be only one way to avoid the collision and plaintiff took it but failed. Held, that tbe question of plaintiff’s contributory negligence was for tbe jury, and tbe evidence was sufficient to justify tbe submission of tbe case thereto.</p>

<p>1. CONTRACTS: Breach: Damages. A partnership entered into a contract with plaintiff that if he would assist them in getting the agency for the sale of certain pianos they would give him one-third the net profits made thereby. He helped them secure the contract. The partnership sold pianos under the agency contract for awhile and then converted the partnership into a corporation and continued to sell pianos under the agency contract as before. Held, that in a suit by plaintiff for breach of the contract brought against the partners, the measure of his damages could be shown by proving the net profit of the pianos sold whether such sales were made by the partnership or by the corporation.</p> <p>2. -: -: Assignment of Contract. Where one of the .parties to a contract renders himself incapable of performing by assigning the contract to another, such conduct is a breach thereof and the other party may sue for the breach. Neither could defendants by incorporating escape liability created by their contract with plaintiff.</p>

— Ho». Kimbrough Stone, Judge. (1) The plaintiff’s petition failed to allege facts sufficient to constitute a cause of action and the demurrer should have been sustained at the close of the plaintiff’s evidence. Fuchs v. Railroad, 167 Mo. 620'; Beasley v. Transit Co., 148 Mo. 421; Plefka v. Knapp, etc. Co., 145' Mo. 316; York v. Railroad, 117 Mo. 405; Casey v. Transit Co., 116 Mo. App. 235; 205 Mo. 721; Clark v. Railroad, 219 Mo. 541.

<p>1. COMMON CARRIERS: When Relation of Shipper and Carrier Begins: Execution of Bill of Lading. When goods are delivered to a common carrier for immediate shipment, that is, in the ordinary course of the carrier’s business, and they have been accepted by the carrier for that purpose, the full responsibility of the carrier as such at once begins, even though the bill of l'ading has not been executed.</p> <p>3. -: -: -. Since the bill of lading is a receipt for the goods and a contract to carry, it would seem that necessarily the goods must be delivered to and accepted by the carrier for transportation, as the bill of lading is only evidence of the contract of shipment.</p> <p>3.-: -: -: Liability as Warehouseman. Goods delivered to a common carrier which are to be held for the convenience of the shipper and not to be shipped until some future time or until after something has been done to the goods themselves by the shipper, cannot be said to be in, process of transportation by the carrier. The latter holds them as a warehouseman, and his liability is measured as such.</p> <p>4. -: Lease of Elevator to Shipper: Release of Damages. A release of all damages by fire contained in a lease from a common carrier to a shipper held to apply only to goods while in or used in connection with the elevator, and not to property delivered to and received by the carrier for transportation.</p> <p>5. -:--: -: Federal Regulations: Interstate Shipment. Under the Federal regulations governing interstate iShipments, a common carrier cannot by a mere stipulation in •an independent contract, such as a lease of an elevator, having no connection with the contract of shipment of goods, relieve itself of its liabilities as a common carrier.</p> <p>6. PLEADING: inconsistent Counts: Dismissal of One. Even if two counts of a petition are mutually contradictory of each other and, therefore, self destructive, yet, if at the trial 'one of them is dismissed and the case submitted to the jury upon one count only, the fact that the petition as originally drawn was a felo de se becomes immaterial.</p> <p>7. TRIAL PRACTICE: Verdict: Allowance of Interest. Where the petition clearly limits the amount sought to be recovered to the value of the goods lost and therefore cannot be considered as asking for interest, the jury cannot award interest upon the damages even if interest would otherwise be allowable.</p>

<p>Appeal from Jackson Circuit Court. — Hon. D. E. Bird, Judge.</p> <p>(1) The court erred in giving to the jury the instruction requested by the plaintiff. Hosher v. Railroad, 60 Mo. 329; Abbott v. Railroad, 83 Mo. 271; Obert v. Dunn, et al., 140 Mo. 476; Gerst v. St. Louis, 185 Mo. 191; Salmon v. Kansas City, 241 Mo. 38; Handlan v. McManus, 42 Mo. App. 551; Carpenter v. Reliance Realty Co., 103 Mo. App. 491; Hoffman v. Walsh, 117 Mo. App. 278; Thurmond v. White Lime Asse., 125 Mo. App. 73. (2) The court erred in making a prejudicial statement in the presence and hearing of the jury to the effect that counsel for defendant in certain important and material cross-examination was making mountains out of mole hills, and in making certain other prejudicial remarks in connection therewith in the presence of the jury, which statement and remarks were then and there excepted to hy defendant. Wright v. Richmond, 21 Mo. App. 76; State v. Turner, 125 Mo. App. 21; Rose v. Kansas City, 125 Mo. App. 223; Landers v. Railroad, 134 Mo. App. 80; State v. Hyde, 234 Mo. 200; 1 Thompson Trials, Sec. 219. (3) The court erred in permitting, time and again, the witness Mollie Johnson, over the objection of the defendant, to state her conclusions as to one of the chief issues in the case, for the jury to decide, and thus invade the province of the jury. Brown v. Plank Road Co., 89 Mo. 152; Roscoe v. Metropolitan St. Ry., 202 Mo. 576; Muff v. Railroad, 22 Mo. App. 584; Watkins v. Railroad, 44 Mo. App. 245; Spalding v. Edina, 122 Mo. App. 65; Landers v. Railroad, 134 Mo. App. 80; Miller v. Town of Canton, 112 Mo. App. 322; Baehr v. Casualty & Ins. Co., 133 Mo. App. 541. (4) The amount of the verdict is not based upon any evidence of the amount of damages to which plaintiffs would he entitled under the law, but is based upon speculation and conjecture and is excessive. White v. Stoner, 18 Mo. App. 540; Graves v. Railroad, 69 Mo. App. 574; Wiggins v. Railroad, 119 Mo. App. 492; Faust v. Pope, 132 Mo. App. 287; Realty Company v. Railroad, 154 Mo. App. 366; Steffens v. Fisher, 161 Mo. Ápp. 386.</p> <p>(1) Respondents contend that while the appellants had the legal right to use powder and dynamite in the work of lowering its grades — being done in the heart of a populous city and using a dangerous agency to accomplish its purpose — they are absolutely held for all the damages which flow from the act, whether negligently done or done in the most careful manner. This is the maxim of sic utere tuo ut alienum non laedas. While this is not true in some jurisdictions like New York, it is now the settled law of this State sustained by both reason, justice and authority. In this State it is not even a debatable question. Hoffman v. Walsh, 117 Mo. App. 278; Faust v. Pope, 132 Mo. App. 287; Knight v. Donnelly, 131 Mo. App. 152; Seals v. Whitney, 130 Mo. App. 419; French v. Center Creek Powder Company, 158 S. W. 723; Blackford v. Construction Company, 132 Mo. App. 153; Scalpino v. Smith, 154 Mo. App. 524; Schnetzler v. Excelsior Powder Co., 160 S. W. 282; Salmon v. Kansas City, 241 Mo. 14. (2) Damages will be allowed in this State to either persons or property which result from the use of explosives, although no actual trespass is committed. This is not the law in some States, but it is the settled law in Missouri. Scalpino v. Smith, supra; Blackford v. Construction Co., supra; Schnetzer v. Ex. Powder Co., supra; French v. Center Powder Co., supra.</p>

<p>1. PRACTICE, TRIAL: Motion for Mew Trial: End of Term. Á motion for new trial must be filed before tbe end of tbe term at wbicb a judgment is rendered. If filed after court has adjourned for tbe term, tbe trial court bas no authority nor power at tbe next term to entertain or sustain it and grant a new trial or to allow additional parties to be made or amended pleadings to be filed.</p> <p>2. -: -: -: Adjournment. An adjournment for tbe term is an act not a declaration. Where tbe judge, after bolding a term of court, leaves tbe courthouse and county with tbe intention not to return until tbe next term and no special judge is elected to bold court after be is gone, tbe court is adjourned for tbe term by that act, and there is no constructive court in session for tbe remainder of tbe day even though, pursuant to custom, tbe judge verbally directed tbe clerk to receive all filings up to six o’clock p. m. of that day, and left without any formal order of adjournment or proclamation by tbe sheriff to that effect. And where tbe motion for new trial was filed after such an adjournment, it was not filed before tbe end of tbe term as required by statute.</p>

<p>1. CONTRACTS: Modification: Cause of Action on Contract as Modified. Where parties have entered into a contract, even a written one, and afterwards a new or modified contract is made, the old contract- is thereby abrogated and abandoned; and, when suit is brought, declaration must be made on the new contract or the contract as modified. Nor does nonperformance of the new have the effect, of reinstating the old.</p> <p>2. -: -: -: Consideration. The substitution of a new contract for an old one is a sufficient consideration.</p> <p>3. -: Agency: Liability of Agent and Principal: Election. Where an agent has contracted in terms sufficient to bind himself personally, then, although the agent has disclosed the fact that he is acting as agent and also discloses the name of his principal, the party with whom he contracts may elect to hold either, but he cannot hold both. And if such party with full knowledge of the facts elects to hold the principal, he thereby discharges the agent.</p>

<p>1. MASTER AND SERVANT: Assumption of Risk: Negligence: Personal Injuries. Plaintiffs duty as a switchman required him to uncouple a string of oars standing on track 11 and ride with the string upon the lead track down to the switch of track No. 1 and there drop off and after the last of the string had passed the switch, to open the switch and signal the engineer to back the string onto track 1 where the last two cars were to be left because they had been labelled “bad order” by the inspector. The “bad order” consisted in the fact that a load of piling placed in twin-load fashion on the two flat cars had slipped back a little from where they had been originally loaded. In riding 'down to switch No. 1 plaintiff sprang upon one of said flat cars and stood with his feet on the oil-bos, or hub of the front wheel, and held by his left hand to the standard placed on the side of the car to keep the load from rolling off sideways. It was a custom not to allow any other .train to come into the yard on the lead track while the switch train was thereon, and when a train was allowed to come in to notify the switch crew of that fact. On this occasion a train was permitted to come onto said lead track without notifying the switch crew. Consequently, while plaintiff was riding in this position, the engineer was compelled to make a sudden, abrupt, violent and unusual stop in order to avoid a collision. The stop caused the load of piling to slip forward and crush plaintiff’s arm against the standard. Plaintiff’s position was the usual position taken to ride a flat car. Held, that as the bad order placard notified plaintiff that something was the matter with the car, and he chose to get upon that car without knowing what that something was, and if he was injured as a result of that defect in the usual and ordinary manner of dispatching business, unaffected by any other independent act of negligence on the part of defendant, then ■ he assumed the risk of such danger. But as the danger did not arise from and was not caused by the usual and ordinary method of doing the business but through the negligence of defendant independent of and unrelated to the defect on the car, he cannot be deprived of recovery on the ground of assumption of risk. [Distinguishing Hager v. Terminal Railroad Assn., 207 Mo. 302.] ’</p> <p>2. NEGLIGENCE: Violation of Custom: Evidence: Jury Question. It requires less evidence to establish the existence of a rule obviously necessary for the safety of employees, than one having no relation to safety. And where the witnesses testify to facts showing the general uniformity and notoriety of the custom this is sufficient evidence of a custom. And where the dispute is not over the existence of the rule or custom but whether it extended over a certain track or not, such extension is a question of fact for the jury.</p> <p>3. INSTRUCTIONS: Riding Car Known to be Defective. An instruction asked by defendant which told the jury that if plaintiff knew the car was in bad order because its load had shifted, and he chose to ride thereon and was injured by the load shifting back caused by the 'train being stopped, then he could not recover, was properly modified by inserting after the word “stopped” the words “in the usual and ordinary manner in handling cars in said yards” since only the damages arising from said defect in the ordinary way of doing business were thereby assumed by plaintiff and not the unusual hazards caused by defendant’s negligence in other matters.</p> <p>4. -: -. For the same reason it was not error to refuse an instruction asked by defendant which told the jury that if plaintiff knew of the placard it was his' duty to ascertain the nature of the defect, and if ,he chose to ride on such a car and was injured he could not recover no matter how negligent defendant may otherwise have been.</p>

<p>1. CARRIERS OF PASSENGERS: Negligence: Duty Toward Alighting Passenger. When a street car stops at a regular place for letting off and taking on passengers, it is the duty of those in charge of the car to exercise due' care in order to learn whether passengers are attempting to alight, and if so, not to start the car while they are in the act of alighting. The same duty rests upon those operating the car, when it stops for the purpose of letting passengers off, whether such stop is made at a regular stopping place or not. "And if a stop ,is not made at a regular stopping place nor to let off passengers, still, if those in charge of the car know that a passenger is in the act of alighting, it is negligence to start the car while such is being done.</p> <p>2. -: -: -: Pleading. In a petition charging negligence in starting a car while plaintiff, a passenger, was in the act of alighting, causing him to fall, the failure to allege either that the place was a regular stopping place for letting off passengers or that the car crew knew, or, by the exercise of due care, should have known, that plaintiff was alighting, does not render it fatally defective as a pleading, where the petition, in effect, charges that the car stopped for the purpose of letting plaintiff off.</p> <p>3. -: -: -: -: Variance. Upon such a petition, however, plaintiff cannot recover by showing that the place where he attempted to alight had, by usage or custom, become a regular stopping place for letting off passengers. To permit this would allow a plaintiff to plead one state of facts and recover by proving another.</p> <p>4. -: -: -: -: -. If the existence of such usage and custom is properly in issue, then it is error to exclude evidence offered by defendant tending to controvert such custom.</p>

<p>1. TRIAL BY JURY: Right of: Enforcng a Trust: Equity: Jury Trial Denied. An action to establish a resulting trust in proceeds derived from the sale of certain land purchased with the money of plaintiffs by defendant’s husband, deceased, the title : to which was taken in his name instead of plaintiffs, though a suit to recover a judgment for money only, was nevertheless, one in equity and defendants were not entitled to a jury trial.</p> <p>2. TRUSTS: Establishment: Equity. The establishment of trusts and the enforcement of trust relations is one’ of the ancient grounds of equity jurisprudence.</p> <p>3. EQUITABLE PROCEEDINGS: Parties to: Who are Proper. In equity suits every person having any material interest, legal or beneficial, in the subject-matter, is properly made a party regardless of whether the interests of the parties be joint or several and it is immaterial whether they be joined as co-plaintiffs or brought in as defendants. The object is to settle the whole controversy and have the decree binding on all having an interest therein.</p> <p>4. TRUSTS: Establishing and Enforcing: Who May be Parties. All persons may join in a suit to establish and enforce a .trust who have similar interests arising out of the same trust, and who are ashing the same relief, although their interests are not joint, and defendant may insist that all such persons be made parties in order that the controversy be settled in one litigation.</p> <p>5. TRUSTS: Resulting: Express: Proof of Each. A resulting trust may be proven by parol evidence but an express trust can only be proven by a writing.</p> <p>6. -: Real Estate: When it Exists. A trust in real estate exists whenever the legal title is in 'one person and the equitable or real title is in another, that is, when the title is in one person and the ownership in another.</p> <p>Y. DEFINITIONS: Trusts: Trustee: Cestui Que Trust. A trust is a relation between two persons by virtue of which one of them (the trustee) holds property for the benefit of the other (the cestui que trust).</p> <p>8. TRUSTS: Purchasing Real Estate: Price Paid by One, Title in Another: Resulting Trust Prima Facie. Where one pays the purchase money for land and .the title is conveyed to a stranger, a trust prima facie results in favor of the party who paid for the land.</p> <p>9. -: Purchase of Real Estate: Price Paid by One: Title in Another: Consent: Effect. The fact that the party who furnished the money for the purchase of land directed or consented that the title thereto be placed in another to be held by him in trust does not make the trust an express one rather than a resulting one.</p> <p>10. -: Express Trust: Failing to Establish by Parol Evi- - dence: When Resulting Trust Declared. Where an express trust, sought to be proven by parol evidence, is not materially different from the resulting trust implied by law from the facts, on the failing of the express trust for want of a writing evidencing same, the resulting trust will be declared.</p> <p>11. DEFINITIONS: Trusts: Express Trusts. An express trust is one which defines and limits the uses and purposes to which certain property shall be devoted, and defines the duties of the trustee as to its control, management and disposition.</p> <p>12. TRUSTS: Resulting Trusts; Arise Under Statutes, When. ■ A resulting trust arises as a matter of law, whether in accordance with or contrary to the intentions' of the parties, whenever the purchase price of real estate is paid by one person and the title is taken in another’s name. (Citing Sec, 2868 and 2869, B. S. 1909.)</p> <p>13. -: -. Arises How. A resulting trust never arises in the hands of one who is the real owner of the property but is impressed on the property by the very act and at the time of vesting the legal title in him; thus, it cannot arise by the ,aet or parol agreement of one party who both pays the consideration and takes the title in himself nor by any such act or agreement subsequent to the conveyance.</p> <p>14. -: -: Real Estate Purchased with Borrowed Money. A resulting trust arises where property is purchased with funds which a. party furnishes and the title is taken in the name of another and it is sufficient that credit is given or the money borrowed and subsequently paid.</p> <p>15. -: -: Duty of Trustee: Dry or Passive Trust. A resulting trust which may be established by parol is always a passive or dry trust, a mere holding of the title for the benefit of another. The trustee is under no duty or responsibility as to its management or control or disposition, except to convey to the cestui que trust or at his direction.</p> <p>16. -: -: Establishment: Case. The members of an association contributed money to purchase a fruit farm. The title was taken in the name of the defendant’s husband, since deceased. There was no evidence of any express agreement that such title should be taken in his name or that a corporation should be formed and the property transferred to the corporation. There was no express trust, but a resulting trust in favor of those who contributed and it was proper to allow same to be established by parol evidence.</p>

<p>1. INJUNCTIONS: Damages on Injunction Bond: When Attorneys’ Fees Allowed. Concerning the assessment of counsel fees as damages on an injunction bond, the test is: If the counsel fees are necessarily incurred in procuring the dissolution of the injunction, whether that is the sole relief sought by the action or not, they should be allowed; but if the injunction is only ancillary and the liability for counsel fees is incurred in defending the action generally, the dissolution of the injunction being only incidental to that result, such fees cannot be recovered.</p> <p>2. -: -: What Included In. Where the injunction is only ancillary to the main case and there is a separate trial on the motion to dissolve, evidence may be introduced and costs incurred which are also pertinent to the merits of the case; but that is no objection to the allowance of same as damages for procuring a dissolution of the injunction.</p> <p>3. -: Trial Court's Discretion: May Hear Motion to Dissolve and Case on Merits at Same Time. A trial court in its discertion may try the motion to dissolve an injunction and the case on its merits at one hearing.</p> <p>4. -: Hearing Motion to Dissolve and Case on Merits Together: Elements of Damage. Where the trial court in its discretion hears together the motion to dissolve an injunction and the case on its merits, such action on the part of the trial court does not make the trial one on the merits of the case with the injunction as purely incidental, to such an extent as to prevent any expenses of the trial being assessed as damages on the bond.</p> <p>5. -: -: What Assessed as Damages on Bond. Where an action was brought under sec. 9569, R. S. 1909, to test the validity of an ordinance which fixed the rate which plaintiff company might charge for gas, a temporary injunction was granted. A hearing together on the motion to dissolve and on the merits was not a separate trial on the motion to dissolve with the merits purely incidental. A division of the expenses of the trial should be made and only such as properly pertain to the dissolution of the injunction should be assessed as damages on the bond.</p> <p>6. -: -: Damages: Division of Expenses. Wliere a motion to dissolve a temporary injunction and. tide merits of the case are heard together, the fact that it is difficult to discriminate and divide the expenses with absolute precision does not prevent the same being done as far as possible.</p>

<p>1. PLEADINGS: Petition: Answer: Judgment on Pleadings Not Justified, When. Action on a contract for sale of land to plaintiff. The answer contained a general denial of every allegation except such as are specifically admitted and specially denied the execution of the contract by the defendant. It is also alleged in the answer that defendant and others offered plaintiff an option on the land in consideration of $100, which option, though executed, was- not delivered because the plaintiff failed to pay the amount. Plaintiff’s motion for judgment on the pleadings was properly overruled. .</p> <p>2. CONTRACTS: Of Sale: Denial of: Burden of Proof. Action on a contract for sale of land. The contract and its execution being properly denied, it was incumbent on plaintiff to prove same.</p>

<p>1. COSTS: Mandamus: Statutory Provisions. Where judgment is given for the person making return to the writ in a mandamus proceeding he shall recover his costs. (Sec. 2553, R. S. 1909.)</p> <p>2. -: -: -. In a mandamus proceeding costs should be allowed in favor of the party prevailing. (Secs. 2263, 2551, R. S. 1909.)</p> <p>o. -: On Motions: Discretion of Court. On all motions the the court may give or refuse costs at its discretion unless otherwise provided by law. (Sec. 2264, R. S. 1909.)</p> <p>4. -: Dismissal of Plaintiff’s Case: Taxation of Costs. When plaintiff dismisses his case or same is dismissed at the request of defendant for failure to prosecute, plaintiff must pay the cost. (Sec. 2275, R. S. 1909.)</p> <p>5. -: Mandamus: Dismissal of Proceeding: Taxation of Costs. Respondent judge in a mandamus proceeding resigned before the special commissioner, appointed to take testimony, had submitted his report and moved for dismissal of the proceedings because of such resignation, to which relator agreed if the costs were taxed against respondent. There being no express provision for such case the court in its discretion awards costs against respondent.</p>

— Ho». B. G. Thurman, Judge. (1) The amended affidavit is a complete change of the cause of action tried before the justice of the peace. An affidavit in an attachment suit is the basis of the cause of action, so far as the plea in abatement is concerned. R. S. 1909, Secs. 2296, 2298 and 2299; Durnin v. Waddington, 12 Mo. App. 145; Thieman v. Goodnight, 17 Mo. App. 429; Faulkner v. Faulkner, 73 Mo. 327; Deyerle v. Hunt, 50 Mo.

<p>1. MASTER AND SERVANT: Machinery: injuries from Defective Appliances: Repair. In an action by .the servant against the master for injuries occasioned by defect in the machine which the servant was operating, it appearing that attempted repairs thereon by the master’s repairman and superintendent were not efficient and reasonable, defendant was not entitled to a peremptory instruction for want of notice of the defect after repair.</p> <p>2. INSTRUCTIONS: Master and Servant: Defective Machinery: Attempted Repair: Injuries. In an action by the servant against the master for injuries occasioned by defects in a machine which the servant was operating and. which the master had attempted to repair, though there was no evidence of notice to defendant of the continued defect after the attempted repair, yet the proof showed that such repair was not efficient or reasonable, and an instruction submitting the proposition of the liability of the defendant with reference to notice that the machine was still defective after repair was not prejudicial to defendant.</p> <p>3. -: Conformity to Pleadings and Evidence. Instructions should submit to the jury only such issues as are raised by the pleadings and supported by the evidence.</p> <p>4. -: Harmless Error. Where instructions submit a case to the jury on some phase not supported by the evidence, the appellate court should, in reviewing the case, determine whether or not the error is prejudicial and the probable influence on the minds of the jurors.</p> <p>5. APPEAL AND ERROR: Judgment: Reversal: Harmless Error. A judgment should not be reversed unless error was committed materially affecting the merits of the action.</p> <p>6. MASTER AND SERVANT: Injuries to Servant: Defective Appliances: Defenses. In an action for injuries to a servant occasioned by a defective iron stamping machine while servant was removing iron sheets therefrom with his hands, the fact that plaintiff’s servant could have removed the sheets in safety with a stick or sticks which he might have procured, is not a defense to the master who had not furnished sticks to plaintiff to he used for such purposes.</p>

Louis City Circuit Court. — Hon. William B. Homer, Judge. (1) The test of a testator’s competency to make a will is, that he understood the business about which he engaged when he had. his will prepared and executed it, knew the persons who were the natural objects of his bounty arid understood his relations -to them and knew what property he had and the disposition he desired to make of it.

Louis City Circuit Court. — Ron. George R. Shields, Judge. (1) Defendant’s demurrers to the evidence should have been sustained. As to the first count: (a) There was no express contract as pleaded. Plaintiff’s letter of November 5, 1909, even though the defendant had actually written upon it the words “ Accepted for one year,” was too indefinite and uncertain to constitute a contract.

Louis City Circuit Court. — Now. George N. Shields, Judge. (1) The trial court erred iu refusing defendant’s instruction in the nature of a demurrer to the evidence asked at the close of plaintiff’s evidence in chief and defendant’s peremptory instruction to find for the defendant asked at the close of all of the evidence. Walker v. Bailroad, 193 Mo. 453; Schmidt v. Bailroad, 191 Mo-. 215; Green v. Bailroad, 192 Mo. 131; Moekowk v. Bailroad, 196 Mo'. 550.

<p>Appeal from St. Lonis City Circuit Court . — Hon. William B. Homer, Judge.</p>

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) Plaintiffs’ instruction asked and given was erroneous, • misleading and fatally defective, in that it omitted to submit to the jury the question as to whether or not plaintiffs had the free exercise of their will, or were constrained by the business necessity revealed to pay the money and stop the sale.

Louis City Circuit Court. — Now. George N. Shields, Judge. (1) Contracts of corporations stand upon the same footing as contracts of natural persons, and depend upon the same circumstances for their validity and effect.

St. Louis City Circuit Court. — Now. Daniel D. Fisher, Judge. (1) If two creditors have a claim against a common debtor, one for the purchase price of personal property and the other as .an ordinary general. creditor with knowledge of the purchase price being unpaid, the latter, if he obtain a first lien by execution, attachment or mortgage on personal property, will prevail over the creditor for the purchase price. Van Frank v. Walther, 84 Mo.

Louis City Circuit Court. — Row. William B. Homer, Judge. (1) A clear case of contributory negligence on part of plaintif was established by the evidence, .and the court should have so declared.

Louis County Circuit Court. — Eon. John W. McElhinney and Hon. G. A. Wurdeman, Judges. (1) In a proceeding to levy a special tax by a municipal corporation, where the owner’s property is taken without his consent, every provision of the law made for that purpose must be strictly followed or the tax bills will be declared void. Municipal Securities Company v. Gates, 130 Mo. App. 552; City of Kirksville v. Coleman, 103 Mo. App. 215; Barber Asphalt Paving Co. v. O’Brien, 128 Mo.

Louis City Circuit Court. — lion. Hugo Muench, Judge. It was not necessary, under our statute, for the plaintiff to allege or prove, in this case, that his decedent left surviving him any next of kin, who would be entitled to take the proceeds of the recovery under our laws of descent.

Louis City Circuit Court . — Hon. ■ James E. Withrow, Judge. (1) The character of the materials is sufficiently described if stated in the lien account or if it can be found anywhere within the four corners of the papers filed with the intention of charging the property with the lien. 0 ’Shea v. O ’Shea, 91 Mo. App. 221; Holland v. Cunliff, 96 Mo. App. 67; Lumber Co. v. Watson, 158 Mo. App. 179; Fireproof Hotel Co. v. Jones, 116 Fed. 793; Knabb’s Appeal, 10 Pa.

— Eon. G. A. Wur deman, Judge; A suit on a special tax bill mnst be brought where the owners can be served although that be in a different county than that in which the property is situated. Such, a suit need not be brought in the county in which it lies. In such suits the title, is not affected by judgment establishing the lien. Sec. 1753, R. S. 1900'; Cratz v. City of Kirkwood, 165 Mo.

<p>Appeal from St. Louis County Circuit Court. — How. G. A. Wurdeman, Judge.</p>

<p>Appeal from St. Lonis County Circuit Court. — Hon. O. A. Wurdemcm, Judge.</p>

— Hon. R. A. Brener, Judge. (1) The court erred in not granting defendant’s motion to quash the information as' it is fatally defective. State v. Hells-cher, 150 Mo. App-, 2301; State y. Brand, 153 Mo. App. 27; State v. Carson, 132 S. W. 587; State v. Hellscher, 156 Mo. App-. 63. (2) The prosecuting attorney in his argument to the jury made remarks not based upon the evidence and clearly prejudicial to the defendant.

Louis City Circuit Court. — Eo». W. B. Homer, Judge. (1) It is settled law that notice to an agent of a corporation is notice to the latter only of matters with-. in the scope of his agency and not otherwise. Williams v. Dittenhoefer, 188 Mo. 134.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The court erred in overruling appellant’s demurrer on the ground that the court had no jurisdiction. By section 3040, failure to comply with requirements of section 3039 subjects the offender to a fine of not less than $1000. An offense punishable by fine only is a misdemeanor. Section 4925', R. S. 19091.

Louis City Circuit Court. — Row. Eugene McQuilUn, Judge. (1) The trial court erred in declaring the law to the effect that it was not necessary for plaintiff to prove a payment by defendant within the statutory period (five years) of limitation; and that a failure of such proof “will not prevent recovery.” The law in Missouri and elsewhere is otherwise, and places on plaintiff the burden of proof as to such payment to avoid or repel the statute.

Anneal from St. Louis City Circuit Court. — IIon. William M. Kinsey, Judge.

Louis City Circuit Court. — Eon. Eugo Muench, Judge. (1) (a) Inasmuch as the. learned trial judge granted the defendant a new trial, among others, on the conflicting grounds that he should have sustained a demurrer to the evidence and that the verdict was against the weight of the evidence, this court will not consider the latter ground as sufficient to sustain the order granting a new trial. Crawford v. Stock Yards Company, 215 Mo. 394; Gibson v. Ducker and Sons, 170 Mo.

Louis City Circuit Court. — How. Wm. M. Kinsey, Judge. (1) Where one corporation acquires assets of another corporation for an adequate consideration, it is not liable for the debts of the latter corporation. Warren v. Mayer Fertilizer, 145 Mo. App. 558; Hageman v. Railroad, 202 Mo. 249; Burge v. Railroad, 100' Mo. App. 460.

<p>MASTER AND SERVANT: Injury to Servant: Negligence of Foreman: Pleading: Sufficiency of Petition. A petition alleging that defendant’s foreman, having authority to direct plaintiff, a driver, in the manner of performing his duties, delivered turpentine to plaintiff, who did not know what effect it would have, with instructions to apply it to the anus of a horse in .case it balked, and the horse, because of the burning sensation thereby produced, kicked plaintiff and injured him, and that the foreman knew, or by the exercise of ordinary care would have known, the effect the turpentine would have, stated a cause of action, as against a general demurrer.</p>