Volume 183 — Missouri Reports

— Row. Benj. J. Casteel, Judge. TRANSFERRED TO KANSAS ClTY COURT OF APPEALS. (1) (a) The license fee of $50 imposed by the laws of the city of St. Joseph for the non-payment of which the judgment appealed from was entered, is of such amount and levied under such conditions that it is manifestly not simply a charge made for the purpose of defraying the expense of enforcing a police regulation, hut is a tax for the purpose of providing revenue. Lamar v. Adams, 90 Mo.

— Ho». W. James, Judg*e. (1) The statute does not make the taxbills prima facie evidence and, therefore, all the proceedings must he alleged in a petition to enforce payment. R. S. 1899, section 5648, et seq.; St. Louis v. Rankin, 96 Mo. 507; Haegelee v. Mallinckrodt, 46 Mo. 577. (2) (a) Insofar as tbe statutes (5648, et seq.) provide that pro- . ceedings may be bad before a judge in vacation, tbe ^ same are void.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) The ease should have been considered with reference to the statutes in force in the years from 1885 to 1890 inclusive and appellant’s rights under these statutes.

Louis City Circuit Court.— Hon. Wm. Zachritz, Judge. Appellant insists that the agreed statement of facts herein shows that he was both the de facto and the de jure member of the House of Delegates from the Fourth ward of the city of St. Louis. He has been indicted and convicted of having taken a bribe as such member of the House of Delegates of the city of St. Louis, and his case is now pending on appeal in Division 2 of this court.

Louis City Circuit Court. — Rom. Warwick Sough, Judge. (1) The notes are not tainted with illegality, hut are valid obligations. First. Because they constitute a new and independent contract. “A new contract founded on a new consideration, although in relation to property respecting which there had been unlawful transactions between the parties, is not itself unlawful.” Armstrong v. Toler, 11 Wheat. 297; Allgear v. Walsh, 24 Mo.

— Sow. N. M. Shelton, Judge.. (1) In order to show the motive which prompted the intestate in giving defendant’s mother the amount set out in this snit with which plaintiffs are seeking to charge defendant, all the circumstances should be considered. The advancement to the other heirs of deceased are circumstances to show the motive, and are. proper and legitimate evidence, and should have been admitted as evidence by the trial court. Gunn v. Thruston, 130 Mo. 347.

Louis City Circuit Court. — Ho». War-tuick Hough, Judge. (1) If there is only one beneficiary to a trust, he can extinguish the trust at any time in his discretion. Underhill on Trusts (Am. Ed.), p. 370, art. 57; Dado v. Maguire, 71 Mo. App. 642; Sears v. Choate, 146 Mass. 195; Huber v. Donoghue, 49 N. J. Eq. 129. (2) The donee of a power in gross attendant on his life estate can extinguish it at any time.

<p>1. APPELLATE; JURISDICTION: Nine-Jury Law: Former Decision. The fact that the Supreme Court has by its former decisions held that the constitutional amendment authorizing nine jurors in a civil case to make a' verdict was a valid law, does not so eliminate that question from the case, when properly raised in the trial court, as to deprive the Supreme Court of jurisdiction of the appeal.</p> <p>2. -: -: Unanimous Verdict. Where the verdict of the jury is unanimous the question of the constitutionality of the nine-jury law is not in the case, although under the instructions the right to a unanimous verdict might have been denied appellant. Where the verdict is unanimous and the Supreme Court has no jurisdiction of the appeal on any other ground it has no jurisdiction on the ground tliat the ■ constitutionality of the nine-jury law was .involved.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Horatio D. Wood, Judge.</p> <p>TRANSFERRED TO St. LOUIS COURT OF APPEALS.</p>

<p>Appeal from St. Louis City Circuit Court. — Hem. Win. Zachritg, Judge.</p> <p>TRANSFERRED TO St. LOUIS COURT OF APPEALS.</p>

Louis City Circuit Court. — Ho». Horatio D. Wood, Judge. The trial judge set aside the verdict on the sole ground that it was against the weight of the evidence. That action, we insist, was error. The verdict is sustained by the decided weight of the evidence.

Louis City Circuit Court.— Hon. John A. Talty, Judge. (1) The court erred in not sustaining the defendant ’s demurrer to the plaintiff’s amended petition. The petition nowhere alleges that plaintiff did not know of each and every one of the alleged defects and omissions set out in the amended petition.

— Hon. Frank R. Bearing, Judge. (1) There was some evidence tending to prove that the note was given, after the poker game was over, to redeem defendant’s checks for money loaned defendant. Where there is any evidence tending to prove an issue, it is error to refuse to submit the same to the jury. Hadley v. Orchard, 77 Mo. App. 141; Pauck v. Dressed Beef Co., 159 Mo. 467; Gannon v. Light Co., 145 Mo. 502.

— -No», J. W. Alexander, Judge. (1) Plaintiff was the Lead of a family under the evidence. Ridenour-Baker Gro. Co., 142 Mo. 165; Broyles v. Cox, 153 Mo. 242. (2) The land in controversy was Ms homestead and therefore exempt from sale by levy of execution for debts made after the homestead was acquired. R. S. 1899, sec. 3616. (3) The-homestead had not been abandoned by plaintiff. Mills v. Mills, 141 Mo. 198. The question of abandonment of the homestead is a question of fact.

St. Charles Circuit Court. — No». E. M. Hughes, Judge. (1) The court erred in giving instruction 1 asked by plaintiff. Said instruction is erroneous: (a) Because it imposes upon defendant too high a degree of care in the operation of its cars. Jackson v. Railroad, 118 Mo. 224; Jacquin v. Cable Co., 57 Mo. App. 320; Hite v. Railroad, 130 Mo. 132. (b) Because it is based upon the theory that plaintiff was injured by the collision of the ears.

Louis City Circuit Court. — Sim. Warwick Hough, Judge. The court erred in finding that the interest of Adrien DeBow Dozier, under the sixth provision of this will, was merely a life interest; His interest was not a life interest merely, but an absolute interest, which, upon his death, descended to his heirs, and in which, under our statute, his surviving wife, this appellant, was entitled to dower.

— Hon. A. D. Burnes, Judge. (1) Plaintiff is not entitled to' specific performance. There is nothing to specifically perform. There is no suggestion that the land was Mrs. Mayer’s separate property. Even her contract to convey could not he specifically enforced. Gwinn v. Smurr, 101 Mo. 550; Rush v. Brown, 101 Mo. 586; State v. Clay, 100 Mo. 571; Craig v. Van Bebber, 100 Mo. 584; McReynolds v. Grubb, 150 Mo. 362.

Louis City Circuit Court. — Hon. WÜ- ■ Mam ZaSvritz, Judge. Plaintiff was seriously and permanently injured by Ihe gross negligence of some one. Whose negligence was it, and is he legally liable for the injuries?

Louis City Circuit Court. — No». William Zachritz, Judge. (1) The court erred in refusing to give, at the instance of defendant, the declaration of law to the effect that the building commissioner of plaintiff did not succeed the architect of the old school board as sole judge or arbiter as to whether or not the heating and ventilating apparatus in question in this case worked satisfactorily in every respect. U. S. v. Nor. Am. Com.

— Row. Jas. E. Hazell, Judge. (1) The act does not require the coal oil inspector of the city of St. Louis to pay into the State Treasury the excess fees collected by him over and above seven thousand dollars per annum. There is nothing in the act fixing seven thousand dollars as an annual allowance to the inspector. It does not say that he shall only retain this sum out of the fees collected in each year.

Mandamus. (1) The peremptory writ should issue, (a) Respondent was required! to sign the hill, if true. Held: under the first statute, that where the court failed, for whatever cause, to specially find the facts, a reversal was required, and this without any further inspection of or comment upon the record.

— No». John P. Butler, Judge. (1) Relators’ petition for alternative writ of mandamus is fatally defective. It does not state a cause of action. It does not state facts sufficient to entitle re-lators to the relief prayed for.

Mandamus. We understand the cases to decide that the midway line shall he adhered to in all cases except: 1. Where a platted lot fronts upon the street to he improved and extends beyond the midway line; 2. Where two or more platted lots used as one front upon th*e street to he improved and extend beyond the midway line. Collier’s and Kauffman’s case, 180 Mo. 362.

Louis County Circuit Court. — No». Rudolph Hirsel, Judge. (1) The will conferred npon the two sons, Michael, Jr., and Joseph, a fee simple, conpled with an absolute power of alienation. For this' reason the devise over, under which the plaintiffs claim, is void. 4 Kent, Com. (10 Ed.), p. 270; 2 Washb. Real Prop.

<p>Appeal from St. Louis County Circuit Court.— Hon. John W. McElhinney, Judge.</p>

Mandamus. (1) Section 12a, article 10 of the Constitution adopted in November, 1902, expressly authorizes cities of less than thirty thousand and more than two thousand inhabitants, with the assent of two-thirds of the qualified voters, voting at an election for that purpose,, to become indebted to larger amount than, specified in sec. 12, art. 10, not exceeding an additional five per centum on the value of the taxable property therein, for the purpose of purchasing or…

Clay Circuit Court. — Ro». J. W. Alexander, Judge. (1) As plaintiff and defendant were married in 1871, and the 223 acres were allotted to plaintiff in 1872, defendant’s rights with reference to said 223 acres, and to the proceeds of the sale thereof, are governed by section 14, chapter 115, Revised Statutes 1865.

— lion. E. B. McKee, Judge. (1) Defendants’ instruction in the nature of a demurrer to the evidence should have been given. Peck v. Lockridge, 97 Mo. 549; Campbell v. Gas Co., 84 Mo. 374. When defendant Gilbert’s deed from plaintiff’s mother was put of record it was an assertion of record then and there that he owned the land from thence forward. Gilbert was not a tenant in common with plaintiff at any time.

— Hon. A. D. Burnes, Judge. (1) The court erred in instructing tbe jury that under tbe'evidence tbe Hannibal & St. Joseph Railroad Company was not entitled to recover. (2) Baker, Duff,. Osborn and Hayward, by making, acknowledging, filing and recording their plats of tbe town of Osborn in tbe recorder’s office of DeKalb county, dedicated the-land in controversy to public use for depot grounds. 5 Am. and Eng. Ency. Law (1 Ed.), 395.

— Hon. E. M. Hughes, Judge. (1) A sufficient foundation was not laid for the admission of secondary evidence of the alleged written agreement. The fact that plaintiff inquired of Guy’s executor and was told that the contract was lost is not sufficient. Lewis v. Dille, 17 Mo. 64; Farrell v. Gren-nan, 32 Mo. 328; Carr v. Carr, 36 Mo. 408; Price v. Hunt, 59 Mo. 258.

— Hon. J. H. Slo-ver, Judge. > (1) Plaintiff had nothing hut tasbills. They are mere liens' on land. They are not land or any interest in land. Sec. 18, art. 9, charter; sec. 23, same art.; sec. 2, art. 9; 1 Jones on Liens (Ed. 1888), sec. 10; Brown v. Pierce, 7 Wall. 217; Conard v. Ins.

— No#. Nat. M. Shelton, Judge. (1) Plaintiff, when he purchased the real estate, having assumed the payment of the deed of trust in question, can not plead usury on the original loan, paid by the mortgagors.

Louis City Circuit Court.— Hon. Selden P. Spencer, Judge. (1) Plaintiff’s bill states no cause of action against these defendants, either at law or in equity: (a) The order of the probate court, a court, of limited jurisdiction, authorizing the curator to incumber the property of the minors, and the deed of trust and trustee’s deed executed pursuant thereto, were wholly void, both at law and in equity. Windleton v. 0 ’Brien, 68 Mo.

— No». 'Nat. M. Shelton, Judge. (1) There was no delivery of the deeds to respondents. The testimony of appellant and of his son Joseph Burin is not contradicted as to the agreement to return the papers when called for by the grantor.

Transferred from Kansas City Court of Appeals. (1) The court erred in overruling defendants’ objection to the introduction of evidence under the petition. The petition should aver that defendants were notified of the acceptance of the proposal to guarantee, it being essential to prove notice. All facts which constitute a cause of action must he stated. Scott v. Eo-bards, 67 Mo. 289. Whatever is essential to he proved must he alleged. McConey v. Wallace, 22 Mo.

<p>1. HOMESTEAD: Extent of. If the homesteader actually occu4f pies a part of the premises, and the whole is within the statutory size, the fact that he rented out a part of it and that that part was separated from the part in which he dwelt by a partition wall, does not prevent that part from being a part of the homestead, but the whole is his homestead. The statute contemplates that a part of the homestead may be rented, so¡ as to afford sustenance as well as shelter for the family.</p> <p>2. -: Election-Dower. The widow who has .elected to take one-half the estate of her deceased husband absolutely, subject to his debts, is entitled, in addition, to homestead in the other half of the land.</p> <p>3. -: -: Payment of Homestead Mortgage. In a suit between the widow, who has elected to take one-half her husband’s estate, subject to his debts, in lieu of dower, and his collateral heirs, she does not have the right to have a mortgage,, placed on the homestead during her husband’s life and signed by her, to secure the payment of his debts, paid out of the other lands left by him, which were not covered by the mortgage. The court can not compel those other unmortgaged lands to be sold to pay the debt before resort can be made to. the mortgaged homestead.</p> <p>4. -: Husband’s Debts: Mortgage on Homestead: Security. The act of the wife in signing a mortgage on the homestead to secure the husband’s debt does not put her in the attitude of a surety of his debt, but is a relinquishment of her inchoate interest in his property.</p>

Louis City Circuit Court. — Hoh. Wm. Zachritz, Judge. (1) The motion to require plaintiff to make his •amended petition more definite and certain should have been sustained. The allegation that plaintiff was injured by the negligence of defendants is insufficient. Conley v. Eailroad, 109 N. C. 692; s. c., 14 S. E. 303.- The only exception to this well-established rule of pleading is in passenger cases, where the specific facts alleged raise a presumption of negligence.

Louis City Circuit Court . — Hon. E. D. Wood, Judge. (1) The court erred in fending that the insolvency of Siegel-Hillman Dry Goods Company had not been shown within the meaning of the bankruptcy act. An adjudication of bankruptcy establishes the bankrupt’s insolvency. Calkins v. Bank, 73 S. W. 1098; Landis v. McDonald, 88 Mo. App. 349. (2) The evidence showed that as a matter of fact the Siegel-Hillman Dry Goods Company was insolvent on December 19,1899.

- — Row. A. M. Woodson, Judge. (1) Plaintiff’s petition stated no cause of action and the court should have sustained defendant’s objection to the introduction of evidence for that reason. The petition counted upon special taxbills made out against specific property and charging the respective amounts as a lien upon that property, and. for that reason, stated no cause of action entitling it to a general or personal judgment.

<p>Appeal from St. Louis City Circuit Court. — Ho». H. D. Wood, Judge.</p>

Francois Circuit Court. — Now. James D. Fox, Judge. (1) Under tlie testimony plaintiff was entitled to decree setting aside the deed executed by Murphy to defendant, Lou M. Smith. According to her own testimony, if true, the transaction was a sale, not a case of a creditor honestly protecting herself to the extent of her claim. Smit y. Strauss Saddlery Co., 64 Mo. App. 120; Cooper v. Stanley, 40 Mo.

— Hon. II. C. Riley, Judge. (1) Defendant’s motion to quash the regular panel of jurors should have been sustained. The- law guarantees to the defendant a trial by a jury selected in a fair and impartial manner as directed by law, and the selection of the jury by the prosecuting attorney in this case was most prejudicial to the defendant. R. S. 1899, secs. 3769 and 3770.

<p>APPELLATE JURISDICTION: Injunction to Abate a Nuisance. Where the case is one for the abatement of a public nuisance maintained, by. an individual, the matters in controversy are not susceptible of a monetary valuation, nor can any test of money value be applied to them, and hence the Court of Appeals has jurisdiction of the appeal from a judgment denying an abatement of the nuisance. This must be the holding, even though the respondent, in its answer, sets up that in the con-struetion of the mill dam, which it is sought to have abated, it had spent oyer $100,000, because even if the injunction be granted and the nuisance abated, defendant would be entitled to no damages.</p>

— Him. D. H. Eby, Judge. (1) ‘ ‘Proof of the marriage, death of the husband, title in the husband to the land in question during the marriage, the possession of the husband under that title, his subsequent conveyance of the premises in which the wife did not join, the acquisition of this title by defendant and his possession thereunder at the time of the suit, makes a complete case in a suit by his widow for dower.” Cazier v. Hinchey, 143 Mo. 203.

<p>1. ORDINANCE: Legality: Burden. The burden of proving that the ordinance under which special taxbills were issued was not legally enacted, rests upon the party attacking its legality.</p> <p>2. -: -: -: Special Sessions of Council: Proclamation. The mayor has the power to call special sessions of the council, and that power does not depend upon any ordinance, but emanates from the charter. .And proof that there was no other ordinance authorizing him to call special sessions by proclamation except the one offered,- is not proof that there was not a prior ordinance authorizing him to make publication of his proclamation.</p> <p>3. -: -: -: Publication: Former Adjudications. The decisions in the cases of Forry v. Ridge, 56 Mo. App. 615, and McQuiddy v. Vineyard, 60 Mo. App. 610, in which the same propositions involved in this case were determined, are approved, and for the reason given therein it is held that the publication of the mayor’s proclamation convening the city council in special session was a legal method of convening the council, and hence the ordinance passed at such special session, authorizing the public work for which the special taxbills in suit were issued, was a valid ordinance.</p> <p>4. TAXBILLS: Delay in Issuing. Where the first taxbills issued for a public improvement have, after long litigation, been declared void, the court will not refuse to enforce new taxbills ■ on the ground of delay in issuing them.</p>

— No». II. C. Tim-monds, Special Judge. The court erred in finding for defendants for the reason that the law of March 2, 1895, is not an amendment of the law of wills; its terms do not pretend to work a repeal of the law of wills, and such a construction ought not to he forced upon it.

— Hon. Jos. D. Perkins, Judge. Estoppel should have been pleaded in the answer, and as it was not and there was no proof of an estop-pel the court should have excluded the evidence offered by defendants under the answer. Blodgett v.' Perry, 97 Mo. 272. John Grubb, witness for defendant, states that there was no consultation with plaintiff’s grantor about the deeds, they simply told her what they had done and came over to give her the personal property. There was no estoppel.

Louis, City Circuit Court. — Ro». W. B. Douglas, Judge. (1) Bank directors serve without remuneration. They are liable only.as mandataries. They are only responsible to their bank for fraud or such gross negligence as amounts to fraud. Briggs v. Spaulding, 141 U. S. 132; Spering’s Appeal, 71 Pa. 11; Pusz v. Spaun-horst, 67 Mo. 256; Swentzel v. Bank, 147 Pa.

<p>1. EVIDENCE: Admission: Stricken Out. Whatever error the court commits in admitting evidence and overruling a motion to strike it out, is corrected hy subsequently striking it out and directing the jury to disregard it.</p> <p>2. -: -: Without Objection. The admission without objection of evidence immaterial to the issues is not error.</p> <p>3. -: -: Condition of Track. A draft or plat showing the condition of the track made eight days after the accident occurred is not inadmissible if there was evidence that the track was in the same condition at that time that it was at the time of the accident.</p> <p>4. ———: -: In Rebuttal. The admission of evidence in rebuttal that should have been introduced in chief is within the discretion of the court, and, in the absence of a showing of an abuse of that discretion, is not error.</p> <p>5. NEGLIGENCE: Carrier.: Prima Facie Case for Passenger. A passenger for hire upon a street ear makes out a prima facie case of his right to recover for injuries received hy him hy showing that the car was derailed and that hy reason thereof he was injured. In order to overcome this prima facie ease it devolves on the carrier to explain the derailment in some way not inconsistent with its duty to the passenger. And an instruction which so states plaintiff’s right to recover is not error.</p> <p>6. INSTRUCTIONS: Broader than Issues: Cured by Defendant’s. Instructions should never he broader than the issues. Where they charge plaintiff’s injuries to the derailment of a street car, they should confine a reference to the condition of the track to its condition at the point of the accident, and not to its condition generally, and if it may he fairly inferred from those given for plaintiff that they were intended to apply only to the condition of the track at the point of the accident, and those given for defendant dispel all doubt about the matter, there is no reversible error.</p>

— Row. D. R. Eby, • Judge. (1) The deed recites that the consideration for the conveyance was “love and affection and one dollar.” Where a deed recites, a good consideration, it cannot he shown that it was a valuable consideration. Clarkson v. Honway, 2 P. Wms. 203; Potter v. Gracie, 58 Ala. 303; Latimer v. Latimer, 53 S. 0. 483; Winhingham v. Pennock, 36 Mo. App. 688; Jackson v. Railroad, 54 Mo. App. 636.

— Eon. Geo. F. Lon-gan, Judge. ■ (1) There was no substantial evidence showing or tending to show that testatrix was not possessed of testamentary capacity *at the time the will was made. Under such circumstances it was the duty of the court to give a peremptory instruction in favor of defendants sustaining the will. Crowson v!

— Hon. D. H. Eby, Judge. (1) The court erred in permitting’ Mrs. Dooley to answer the question asked her by the State. (2) The court erred in permitting the endorsement on the deposition of witness Evereft Dooley, purporting to be a certificate of Judge Moss that the prosecuting attorney declined to crots-examine the witness at the time deposition was taken. It was wholly immaterial whether the prosecuting witness was cross-examined or not, by the prosecuting attorney.