Volume 183 — Missouri Appeal Reports

<p>1. REAL ESTATE: Assignment of Rents: Rights Acquired. An owner of real estate who assigns rents by a general assignment containing no provision requiring the property, to be rented has a right to live in the property himself and is under no obligation to rent it.</p> <p>2. -: -: Rights of Assignee as Against Subsequent Grantees. An assignee of rents issuing out of real estate acquires no interest in the real estate itself, but merely acquires a right to the rents, which are severed from the real estate by virtue of the assignment, and hence an assignee of rents, although taking precedence over subsequent grantees and mortgagees chargeable with notice of the assignment, so far as the rents are concerned, has no standing to set aside such conveyances on the ground of fraud.</p> <p>3. -: -: Effect. Although rents are connected with the real estate out of which they issue, so that, if no assignment or reservation is made with respect to them, they pass to the grantee, yet being chattels real and capable of being sold or assigned as such, they may be severed entirely from the real estate and pass to an assignee wholly independent of the reversionary interest.</p> <p>4. -: -: Rights of Assignee As Against Subsequent Grantees. An assignment of rents issuing out of real estate as security for a debt due from the assignor is regarded as an equitable mortgage of the rents, and the assignee is entitled thereto, as against a subsequent grantee or mortgagee chargeable with notice,, until the debt due him is paid.</p> <p>5. —1-: -: Recording: Constructive Notice. Subsequent grantees of real estate are chargeable with notice of a duly recorded assignment of the rents.</p> <p>6. EQUITY: Pleading: Granting Relief Under Prayer for General Relief. In an action in equity, where plaintiff is not entitled to all of the relief prayed for, but it appears that he possesses a clear right and that such right is denied and sought to be defeated by defendant, he is entitled to have such right established under the prayer of the petition for general'relief.</p>

Louis City Circuit Court.—No». Wm. B. Homer, Judge. (1) Actual authority of an officer to make contracts or to act in a certain capacity for a corporation may he shown not only hy resolution of a hoard of directors, but by inference or from his being allowed for a considerable period with the knowledge of the directors to exercise the authority. Tyler’s Estate v. Hoffman, 146 Mo. App. 5101; Washington, etc., Bk. v. Butchers, etc., Bank, 107 Mo. 33.

<p>L PROSECUTING ATTORNEYS: Right to Represent County Judges in Mandamus Proceeding: Interest of County. A county is interested in a mandamus suit against the judges of the county court to compel them to hear and determine an application for a dramshop license, within Sec. 1008, R. S. 1909, providing that the prosecuting attorney shall prosecute or defend “all civil suits in which the county is interested,” entitling the prosecuting attorney to appear in and control such suit.</p> <p>Held hy REYNOLDS, P. J., dissenting, that the “interest” referred to in the statute, which the prosecuting attorney is required to protect, must appear in the pleadings, or, if not so appearing, must be capable of being brought before the court by way of intervention by the county; and neither of these conditions obtaining in a mandamus suit against the judges of the county court to compel them to hear and determine an application for a dramshop license, and such a proceeding being against the judges as individuals, ,the prosecuting attorney is not entitled to appear in and control such suit.</p> <p>2. -: Rights and Duties: Construction of Statute. Sections 1007 and 1008, R. S. 1909, pertaining to the rights and duties of prosecuting attorneys, being in pari materia, are to be read together in determining the nature and extent of such rights and duties.</p> <p>3. STATUTES: .Construction. Statutes which are in pari materia are to be read and construed together.</p> <p>4. INTOXICATING LIQUORS: Right of State to Control Sale. The State may exercise its police power with respect to the sale of intoxicating liquor, because of its tendency to deprave public morals.</p> <p>5. MANDAMUS: Prosecuting Attorneys: Enforcing Right to Represent County Judges. Mandamus lies to compel the circuit court to allow a prosecuting attorney to represent the judges of the county court in a mandamus proceeding brought against them, notwithstanding they refuse to give their consent to his representing them.</p> <p>Held by REYNOLDS, P. J., dissenting, that the action of the circuit court, in refusing to allow the prosecuting attorney to represent the county judges in a mandamus proceeding against them, in the absence of their consent to his so representing them, was the exercise of judicial discretion, which is reviewable on appeal, but not controllable by mandamus.</p> <p>6. -: Action Against Court: Parties. In a proceeding by mandamus to compel action by a court, while it is proper to direct the writ against the judges of the court by name, yet the office they hold is touched, if the action sought to be compelled is within the purview of such court.</p> <p>Held by REYNOLDS, P. J., dissenting, that the writ is not only to be directed to the person occupying the office, but the return must be made by him as an individual.</p> <p>7. COURTS OF APPEALS: Jurisdiction: Constitutional Question. The Court of Appeals was not deprived of jurisdiction of a suit by mandamus to compel a circuit court to allow the prosecuting attorney of a county to appear in and control a suit brought against the judges of the county court of such county, because a constitutional question was raised in the return filed by suck judges in tke circuit court, since tke only question to be determined by tke Court of Appeals was wketker tke prosecuting attorney was entitled to appear in and control suck suit, and tke merits of suck suit were not involved, and since, also, tke constitutional question raised by such judges is not to be treated as in tke record, for tke reason that tke return was not made by tke prosecuting attorney, Who had tke sole right to make it.</p> <p>Held by REYNOLDS, P. J., dissenting, that a constitutional question having been raised by the return of tke judges of tke county court, tke Court of Appeals was without jurisdiction.</p> <p>8. MANDAMUS: Amendment of Alternative Writ. Where an alternative writ of mandamus is broader than tke law warrants, it may be amended and a peremptory writ awarded for so muck of tke relief as is proper.</p>

Louis City Circuit Court.—Hon. Charles Claflin Allen, Judge. (1) A clear case of contributory negligence on part of plaintiff’s husband was established by the evidence, and the court should have so declared. Farris v. Railroad, 167 Mo.

Louis City Circuit Court.—Eon, George G. Eitchcoch, Judge. (1) The court erred in refusing to comply with defendant’s request offered with its instructions that in the event the court found against it, to state in writing the conclusions of fact found in this case separately from the conclusion of law, as provided hy the statutes of this State. R. S. 1909, Sec. 1972; German Am. Ins. Co. v. Tribble, 86 Mo. App. 546; Baily v. Emerson, 87 Mo. App. 220; Fahy v. Grocer Co., 57 Mo.

Lonis City Circuit Court.—Hon. George C. Hitchcock, Judge. (1) The notice served on Hans Wulff as surviving partner of the partnership of Stein and Wulff, is in the nature of a summons, as the process by which he was brought into court performs the function of an ordinary writ of summons in the circuit court. In tin's ftotice, which performs the function of a writ of summons, Hans Wulff, as surviving partner, is jointly named as defendant with Mrs. George Stein.

Louis County Circuit Court.—lion. G. A. Wurdemcm, Judge. (1) The trial court erred in sustaining defendant’s Hart’s and Webster Groves’ motion at the close of plaintiff’s case, in words and figures as follows: “Now comes Edward S. Hart and city of Webster Groves, by their attorney, and requests the court to instruct the jury that they must find for the said defendants upon the failures of plaintiffs to offer any evidence as against them or to connect them with the alleged…

Louis City Circuit Court—No». W. B. Homer, Judge. ■ (1) Tbe acquisition and bolding of real estate is not a lawful purpose under tbe statutes and public policy of the State of Illinois.

Louis City Circuit .Court.—Hon. Hugo Muench, Judge. (1) Upon the facts shown by the record plaintiff was not entitled to recover, as defendant had fully complied with his request. Williams v. Verity, 98 Mo. App. 654; Hackett v. Van Frank, 105 Mo. App. 384; Layson v. Cooper, 174 Mo. 211; Banking Company v. Commission Company, 195 Mo. 262; Moore v. Bank of Commerce, 52 Mo. 379; Pitman v. Mining Co., 78 Mo. App. 438.

Louis City Circuit Court.—Hon. Charles Claflin Allen, Judge. (1) The court erred in admitting in evidence and considering on the motion for a new trial the deposition taken by the defendant in support of the motion for a new trial. Devoy v. Transit Co., 192 Mo. 197. (2) The court erred in sustaining the defendant’s motion for a new trial on the ground of newly discovered evidence. Mayer, etc., v. Burns, 114 Mo, 426.

Louis Court of Criminal Correction. —Hon. Calvin N. Miller, Judge. (1) When the question is as to the condition of certain articles which are taken from a homogeneous lot or mass, testimony as to the condition of the remainder of the lot is relevant and material. Corbin v. U. S., 181 Fed. 296; Dixon v. Watson, 41 Tex. Civ. App. 266; Davis v. Chemical Co., 105 N. Y. Supp. 693; Epps v. State, 102 Ind. 539.

Louis City Circuit Court.—Hon. William M. Kinsey, Judge. (1) Acts which, furnish, cause for divorce on one ' statutory ground, are not necessarily confined to that ground alone; they may furnish all or part of other grounds. Cannon v. Cannon, 17 Mo. App. 390; Mc-Cann v. McCann, 91 Mo. App. 4; Million v. Million, 106 Mo. App. 683; Kempf v. Kempf, 34 Mo. 214; Williams v. Williams, 121 Mo. App. 349.

<p>Appeal from Jackson Circuit Court.—Hon. Kimbrough Stone, Judge.</p>

<p>1. MANDAMUS: Catholic Church: Priesthood: Regulations. When one as a member of the Catholic Church enters upon the duties of Priesthood and is assigned to a certain pastorate, he necessarily agrees to abide by the rules and regulations of that church.</p> <p>2. -: Ecclesiastical and Secular Jurisdiction. Whatever pertains to the government of the Catholic Church, the discipline of its members, the place of exercise and duration of service of a priest, is within the jurisdiction of ecclesiastical tribunals to the exclusion of the secular courts of the country.</p> <p>S. -: Jurisdiction: Property Right. If a right of property is involved, the secular courts have jurisdiction, if necessary to determine and protect that right, to inquire into the rules and regulations of the church regarding such property.</p> <p>4. -: Priest’s Salary: Excommunication. The salary of a priest who has been deposed or excommunicated, is not a property right and secular courts will not interfere with ecclesiastical tribunals, under the guise of protecting a priest in his salary.</p>

<p>1. CHAMPERTY: Evidence. Evidence examined on question whether an attorney was guilty of champerty in agreeing to pay the costs in an action for damages, hut no decision made.</p> <p>2. ATTORNEY’S LIEN: Abandonment of Case. An attorney had a contract with his client for a share of the proceeds of a judgment or compromise to be obtained from a railway company for negligence. The case was brought by such attorney in a State court and was removed to the Federal where it was dismissed and rebrought in a State court and again removed to the Federal court. The plaintiff then directed the attorney to dismiss it so as to bring it in a State court at a point where the Federal court did not have jurisdiction. The attorney failed to do so when the plaintiff himself dismissed it and had a new suit instituted where it was not interfered with by the Federal court and where judgment was obtained, and after-wards compromised. After the attorney failed to dismiss the case he abandoned it and took no further part in it. It was held that he was not entitled to a lien for the share of the proceeds under his contract.</p>

<p>1. PROHIBITION, WRIT OF: Probate Courts: Abuse of Judicial Power. Where a court has jurisdiction over the parties and subject-matter and is proceeding in the cause according to the course prescribed by law, the fact that it errs in the construction of the pleadings, or in giving weight and probative value to evidence which has no value, would constitute an error of law reviewable on appeal, but would not amount to an abuse of judicial power for the redress of which an extraordinary writ should issue.</p> <p>2. -: -. Where a court has no jurisdiction to proceed in a cause until the return term the appointment of an administratior ad litem is a nullity as is also the judgment subsequently rendered.</p>

<p>1. BILLS AND NOTES: Pleading: Indorsement. The plaintiff, the holder of a negotiable promissory note indorsed in blank, sued to recover its value from the defendants, the makers. At the trial plaintiff introduced evidence as to the' sale and delivery of note before maturity, but offered none concerning the indorsement. Held, that Sec. 10019, R. S. 1909, has no application to a case where the pleaded cause embraces a title by indorsement and not one resting upon the mere right to have an omitted indorsement supplied.</p> <p>2. -: Evidence: Indorsement. It is well settled that the holder of an unmatured negotiable promissory noté is prima facie the owner thereof but to establish such prima facie case it devolves on the holder to prove the indorsement by evidence aliunde the indorsement. '</p>

<p>1. TRESPASS: Treble Damages. Where, in a suit for trespass under Sec. 5448, R. S. Mo. 1909, the plaintiff sought treble damages for the cutting of fence posts out of a hedge, the issue submited to the jury was whether plaintiff was the exclusive owner of the hedge or whether it constituted merely a partnership fence between them in which each owned an interest therein, and the jury found that it was the latter, the suit for trespass under the statute cannot be maintained.</p> <p>2. -: -: Evidence. The trial court cannot be convicted of error in excluding testimony that was immaterial, nor for excluding testimony that was material if it was merely a repetition of testimony theretofore given by the witness and which was admitted.</p>

—Hon. A. D. Burnes, Judge. The Statute of Limitations in regard to irregularities applies to such as appear on the fact of the proceedings, and not to such as are brought before the court by evidence aliunde, as in this case. Graff v. Dougherty, 139 Mo. App. 56; Parks v. Coyne, 156 Mo. App. 379; Colter v. Luke, 129 Mo. App. 702; Perry v. Stone Co., 173 Mo. App. 414; Bank v. Martin, 171 Mo. App. 194; Craig v. Smith, 651 Mo. 536.

<p>1. JUDGMENTS: Default: Motion in the Nature of a Writ of Error Coram Nobis: Negligence. An attorney, representing a defendant which had been served and had filed answer, had a telephone conversation with opposing counsel wherein it was agreed that the case should be continued at the April term. Thinking that the conversation contained an agreement that nothing would be done in the case until an effort to compromise had first been made, the attorney paid no attention to the case at the next term thereafter and judgment was rendered against his client at the September term. Before he can have the judgment set aside, he must, in addition to a showing of meritorious defense, prove that he was not negligent. The telephone conversation did not contain an explicit agreement that nothing would be done before an effort to compromise had been made. That was rather an inference which might be drawn therefrom. And inasmuch as nothing was done to attempt a compromise, nor to ascertain whether such construction of the conversation was correct, an inference of negligence may be drawn therefrom by a reasonable mind.</p> <p>2. -: -: -: Evidence: Question for Trial Court. The question what agreement was actually contained in the telephone conversation as well as-the reasonable inferences to be drawn from the evidence submitted, are for the judge who hears the motion, and where there is substantial evidence to support his ruling on the motion, it will not be disturbed.</p>

<p>NEGLIGENCE: Railroads: Statute: Unloading Ties: Fellow Servant. A railway. company was extending its roadbed and track from its then present terminus. One of its employees with his team was hauling ties for such extension and while unloading them from his wagon onto the roadbed his foot was mashed through the .negligence of a fellow servant assisting 'him in unloading. Held, that in the sense of the statute, he was engaged in work in operating a railroad and that the railway company was liable for his injury.</p>

<p>1. FOREIGN INSURANCE COMPANIES: Agents: License Tax. It is competent for a State to collect ad valorem tax upon property used in a calling, and at the same time impose a license on the pursuit as a condition to the right to carry on the pursuit. This power may he delegated to a municipal corporation. Sec. 7099, R. S. 1909, was not intended to repeal Sec. 9253, nor to preclude a city from imposing a license tax upon insurance companies. The exercise of such power cannot he considered a duplicate taxation, nor will the imposition of a license tax upon the calling of the agent, in addition to taxing the company or companies represented hy him, constitute duplicate taxation.</p>

Louis City Circuit Court.—Eon. J. Eugo Grimm, Judge. The testimony affirmatively shows that the payment by the millinery corporation, and its release upon the note, was agreed and assented to at the time by defendant Richard Hanlon, and that, upon the payment being made by the millinery company, defendantHanlon, in writing, in red ink, expressed upon said note: “I consent to the above release of the obligation of the Richard Hanlon Millinery Company on this1, note,” and the…

Lonis City Circuit Court.—Hon. Hugo Muench, Judge. There is nothing in the record to enable this court to determine whether the ruling of the trial court in excluding from the evidence the lien offered was incorrect as complained of by the appellant.

Louis City Circuit Court.—Hon. J. Hugo Grimm, Judge. (1) The public administrator is a statutory officer, empowered to act under the circumstances specified in the statute creating his office. Sec. 302, R. S. 1909; Adams v. Larrimore, 51 Mo. 130; McCabe v. Lewis, 76 Mo. 296; Tittman v. Edwards, 27 Mo. App. 492; State ex rel. v. Mast, 104 Mo.

<p>Appeal from St. Louis City Circuit .Court.—Hon. Hugo Muench, Judge.</p> <p>(1)The plaintiff has failed to amend his petition to meet the suggestion of this court on the former appeal. Stone v. Union Trust Co., 150 Mo. App. 331. (2) The defense that the deposit and account in question bore no interest is sustained under the pleadings and the proof. State ex inf. v. Trust Co., 144 Mo. 562. (3) Where plaintiff is required by the terms of a prior contract with defendant to place his deposit with defendant, the placing of such deposit with defendant cannot be consideration for another and different contract. 9 Cyc. 349; Storck v. Mesker, 55 Mo. App. 26. (4) If the court should hold that the rules and regulations of defendant, although not communicated to plaintiff, can be considered as part of the contract, still the court must consider all the rules and regulations of defendant and the uniform interpretation of them and the practice under them by defendant. (5) The entry of debits and credits in the depositors’ hank hooks, striking the balance and then delivering the pass hook to the depositor with his canceled checks, constitutes a rendition of account and the retention of the book so balanced by the depositor for an unreasonable time, without objection to the account as rendered, constitutes an account stated; and especially is that true in this case because of the reports made by the plaintiff to the court and the approval of those reports. Burger v. Burger, 34 Mo. App. 153; Lieher v. Fourth National Bank, 137 Mo. App. 158; McKeen v. Bank, 74 Mo. App. 281; Kenneth Investment Co. v. Bank, 96 Mo. App. 125; Perry on Trusts, Sec. 482; 1 Am. & Eng. Ency. of Law (2 Ed.), p.'438. (6) An account stated can only he opened’up on account of fraud or mistake. And where a depositor knows he has not, upon the stating of the account by the bank in the pass book, been allowed interest and still retains the pass hook without objection for an unreasonable length of time, he will thereafter be precluded from recovering such interest. Quinlan v. Keiser, 66 Mo. 60S. (7) The Statute of Limitations applies. (8) The court erred in refusing defendant’s declaration of law.</p> <p>(1)The defendant being a trust company organized under the laws of Missouri, it is compelled to pay interest on checking deposits. R. S. 1909, Sec. 1124; State ex inf. v. Lincoln Trust Co. et al., 144 Mo. 562. (2) Under the evidence, the plaintiff’s deposit is a “current account” and it is not an “indemnity account,” as defendant contends. Century Dictionary, p. 1405; Words and Phrases, p. 1790; Chadwick v. Chadwick, 115 Mo. 586; 16 Am. & Eng. Ency. of Law (2 Ed.), 183; Black’s Law Dictionary, p. 614. (3) The writing signed by Stone prior to his qualification as receiver was not a contract obligating him to make deposit of the fund of Ms-trust with the trust company and will not preclude the obligation of the trust company to pay interest on such funds because— Stone at the time was not receiver and could make no contract as such; the writing furnished a motive to make the deposit, but it lacked every essential element of a contract obligation so to do, viz., competent parties, definite terms, lawful object, lawful consideration. State ex inf. v. Lincoln Trust Co., 144 Mo. 562; Shadewald v. White, 77 N. W. 42; In re Eby’s Estate, 164 Pa. St. 249; Bick v. Reese, 52 Hun, 125; Estate of John J. Clark, 10 Pa. Super. 423; Jenkins v. Schaffer, 6 Dem. Sur. (N. Y.) 59; In re Wilson’s Estate, 18 W. N. C. 483; In re Pickering’s Estate, 4.Pa. Dist. R. 263. (4) The plaintiff does not seek to surcharge or falsify an account stated. He denies its existence for the reasons following: The theory of an account stated is that mutual accounts have existed between parties; that they have examined their accounts and have agreed upon a balance due between them, which balance, the debtor on accounting, has expressly or impliedly agreed to pay. Newberger v. Friede, 23 Mo. App. 634; Cape Girardeau v. Kimmal, 58 Mo. 85. If the person who is alleged to have made the account stated has no authority to do so, no account stated can arise from his actions. Railroad v. Commission Co., 71 Mo. App. 299; Kenneth Inv. Co. v. Bank, 96 Mo. App. 125. Lack of authority is properly raised under a general demal. It is a denial of an essential element of the contract or action. Cunningham v. Roush, 157 Mo. 336; Boulton v. Railroad, 172 Mo. 92. This Receiver had no authority to consent to an account stated except by direction of the court or its subsequent ratification of his act. (5) When a receiver is appointed for property by a court of chancery, the property is in the custody of the-court. Rumsey v. Railroad, 91,Mo. App. 202; Neun v. Bldg. & Loan Co., 149 Mo. 74; Colburn v. Yantis, 176 Mo. 670; Smith v. Railroad, 151 Mo. 301. The receiver is the court’s arm merely and is possessed of very limited powers. Chicago Deposit Vault Co. v. McNulta, 153 U. S. 555; Lehigh v. Railroad, 35 N. J. E. 426; Hand. v. Savannah, 17 S. C. 219'; Tripp v. Boardman, 49 la. 410; Peoria Steam Marble Works v. Hickey, 110 la. 276;. Railroad v. Herndon, 33 S. W. 377; Railroad v. Humphreys, 145 U. S. 82. This receiver is an officer appointed in a statutory proceeding brought by statutory authority, and being appointed by authority of the statute, his powers and the powers which the court may grant him, are peculiarly limited. R. S. 1909, Sec. 1081; State v. Bank, 45 Mb. 528; Rozier v. St. Francois County, 34 Mo. 395. Of the limitation of the receiver’s powers all must take notice and deal with him at their peril of his limited authority. Lehigh v. Railroad, 35 N. J. E. 426; Tripp v. Boardman, 49 la. 410; Chicago Deposit Vault Co. v. McNulta, 153 U. S. 555. This being a winding up receivership, the receiver is the court’s custodian and may not lawfully agree to part with the possession of funds in his care without authority from the court. Ricks v. Broyles, 78 G-a. 610; Ficenor v. Bott, 47 S. W. (Ky.) 251. Should we grant that the receiver has deposited his funds with the defendant on this agreement to pay interest, then to make a contract in the nature of an account' stated, omitting the interest would be to commute or compromise a demand of the estate, a power which the receiver, without the authority of court, may not exercise. Smith on Receivers, 88; Paxton v. Steele, 86 Va. 311; 5 Thompson on Private Corporations, Sec. 6973. Should it be held that the receiver has been granted implied authority to deposit his fund with the defendant, this would not help the defendant, for then, by reason of the deposit, the defendant becomes pro hac vice an officer of the court and the custodian of its funds and is amenable to the court’s orders in the receivership suit.. The defendant’s relations then, are directly with the court, in whose theoretical custody the funds are. 23 Am. & Eng. Ency. of Law (2 Ed.), 1056; Rapalje on Contempts, Sec. 15; In re Western Fire & Marine Ins. Co., 38 111. 289; 17 Ency. Pd. & Pr. (2 Ed.), 773; McCarter v. Finch, 55 N. J. E. 245; Otis v. Gross, 96 111. 612; 5 Thompson on Private Corporations, Sec. 7075. This being- true, the defendant’s responsibility is to the court and cannot be abridged by any secret agreements unknown to the court. Una. v. Newark Savings Institute, 46 Atl. 660'. The mere fact that the receiver’s reports from time to time made mention of the cash balance on hand and of interest collected from other sources (not, however, even disclosing the fact of this deposit) will not furnish any basis to argue that the court ratified any agreement by the receiver by account stated or otherwise, not to collect interest. Chicago Deposit Vault Co. v. McNulta, 153 U. S. 555; Peoria Steam Marble Works v. Hickey, 110' la. 276. (6) The doctrine that a receiver may not contract without authority of the court, the appellant may urge would preclude his recovery on the original contract to pay interest. Such is not the case. When one has contracted with a receiver and he is sued on the Contract by the receiver, it is well settled that the lack of authority in the receiver is a question which the defendant may not raise. Thompson v. Phoenis Ins. Co., 136 U. S. 287; Corbin v. De La Vergne, 44 N. J. L. 70; O’Gorman v. Sabin, 64 N. W. 84; Smith on Receiverships, p. 87. (7) No part of plaintiff’s demand is barred by the Statute of limitations, because: This action being on an account current, no part of it will be barred unless all the parts of it are. R. S. Mo. 1909, Sec. 1893; Chadwick v. Chadwick, 115 Mo. 581; Boylan v. Victory, 40 M,o. 244; Ring v. Jamison, 66 Mo. 424; Gibson v. Jenkins, 97 Mo. App. 27'. This deposit was originally made for the purpose of it remaining an indefinite period of time and until demand by check or sight draft. Under such circumstance's the Statute of Limitations will not begin to rnn until actual demand and refusal. Jameson v. Jameson, 72 Mo. 640; Waldron v. Alexander, 35* 111. App>. 319; Campbell v. Whorisky, 170 Mass. 63; Sullivan v. Fosdick, 10 Hum. 173; Railroad v. Continental Bank, 212 Mo. 505; Zane on Banks and-Banking, Sec. 169, p. 290'; Koelzner v. First Nat’l Bank, 125 Wis. 595. Where interest is payable on the principal obligation and no time is fixed for the payment of the interest, the interest is an incident of the principal and the interest is barred by limitations only as and when the principal is barred. 19' Am. & Eng. Cyh (2 Ed.), 206; Greenwood v. Fen-ton, 54 Neb. 573; French v. Kennedy, 7 Barb. (N. T.) 452; Bander v. Bander, 7 Barb. (N. T.) 560’. (8) The allowance of six per cent interest after demand and refusal was correct. R. S. 1909', Sec. 7181; Ewall v. Daggs, 108 U. S. 143; Holden v. Trust Co., 100 U. S. 72; Wright v. Hannah, 210 P'a. St. 349'; Brewster v. Wakefield, 63 U. S. (22 How.) 118; Burnhisell v. Fir-man, 89 U. S. (22 Wall.) 170; Sikles v. Herold, 149 U. S. 332; Nation’s Bank v. Mechanic’s Nat’l Bank, 94 U. S. 437.</p>

Louis City Circuit Court.— Hon. Hugo Muench, Judge. (1) In this cause, while there is some evidence of an explanatory nature, there is really no evidence to weigh, though considerable to apply. The essential facts are uncontroverted and uricontradicted;' thus it becomes the duty of the appellate court to review the evidence, and give the judgment that should have been given in the first instance. The abstract in'its recitals of material facts shows little if any dispute.

Louis City Circuit Court.—Hon. Wm. B. Homer, Judge. The petition does not state facts sufficient to constitute a cause of action. Leas v. The Pacific Express Co., 45 Mo. App. 508. The statement filed by respondent, as appears in appellant’s abstract of record, is sufficient in the absence of a motion by respondent to make the statement more definite and certain and after trial and verdict rendered cannot be attacked. Fixture Co. v. Base Ball Co., 152 Mo.

Louis City Circuit Court.—lion. George H. Hitchcock, Judge. The court erred in refusing to give an instruction in the nature of a demurrer to the evidence requested by defendant. There was.no evidence to justify a submission of this cause to the jury on failure to control or on the humanitarian doctrine. Paul v. United Bail-ways, 152 Mo. App. 577; Wilkerson v. Bailroad, 140 Mo. App. 306, 316; Zurfluh v. Bailroad, 46 Mo.

—Hon. Chas. E. Bendlen, Special Judge. (1) The refusal of instruction number 2 asked by defendant was reversible error. Porter v. Graines, 151 Mo. 560; City of St. Louis v. Meyer, 13 Mo. App. 383; s. c. 87 Mo. 276.

Louis City Circuit Court.—How. Hugo Muench, Judge. (1) The court erred in giving to the jury plaintiff’s instruction 4, because said instruction submits questions of fact of which there is no evidence in the case and authorized recovery by plaintiff upon a theory not supported by proof. Holden w Railroad, 177 Mo. 469; McKoen v. Railroad, 42 Mo. 84; McAtee v. Valandingham, 75 Mo. App. 53; Chouteau v. Searcy, 8 Mo. 733.

<p>DAMAGES: Personal Injuries: Age and Condition in Life. In an action for permanent personal injuries, it is.proper to instruct that plaintiff’s age and condition in life may be considered, in assessing the damages, except where the plaintiff is a married woman and is not engaged in business on her own account.</p>

Louis City Circuit Court.—Hon. William M. Kinsey, Judge. (1) The times specified in the contract, to-wit, August 1 and August 20, 1908, for the completion of the buildings, were waived by the plaintiff because of the fact that the lots upon which they were to be erected were, when the contract was signed (and without the knowledge of the contractor), encumbered by a lot of material, to remove which required twelve days of time. Eldridge v. Fuhr, 59 Mo. App. 44.

Louis City Circuit Court.—Hon. Charles Claflin Atlen, Judge.

Louis City Circuit Court.—Hon. Chas. Claflin Allen, Judge. (1) Appellate courts have uniformly extended great flexibility to pleadings in cases commenced before justices, but when such pleading is amended in the circuit court, the latter act must be in conformity to the rules maintaining in such jurisdiction and any modification of the initial contract must be pleaded. Lanitz v. King, 93 Mo. 513; Sims v. Fields, 24 Mo. App. 557.

Louis City Circuit Court.—Hon. George H. Shields, Judge. (1) The schedules and fares and charges and baggage regulations filed by the carrier with the Interstate Commerce Commission fixing the limit of liability for loss of baggage, bind the carrier and- passenger in interstate transporation. Ford v. Railroad (Supreme Court of Minn. Oct. 3, 1913), American Silver Mfg.

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. (1) The amended petition does not state facts sufficient to constitute a cause of .action; An agreement to assign or sell an interest in a lease having an unexpired term of more than one year must be in writing. Nally v. Reading, 107 Mo. 350; Johnson v. Reading, 36 Mo. App. 306; Roth Tool Co. v. Champ Spring Co., 93 Mo. App. '530; Sharp y. Rhiel, 55 Mo. 97; Donovan v. .Schoenhofen, 92 Mo.

Louis City Circuit Court.—Noto. Eugene McQuillin, Judge. (1) The trial court erred in permitting plaintiff to introduce the writing dated May 24, 1911, because there is a fatal variance between the agreement or contract declared upon in the petition and the writing. 9 Cyc., pp. 750, 751; Willoughby v. Raymond, 4 Conn. 130; Green v. Cole, 127 Mo. 587; Johnson v. Mining Company, 13 Colo. 258, 5 L. R. A. 269; Pier v. Heinrichoffen, 52 Mo. 335; Gurley v. R. R., 93 Mo. 450.

<p>Appeal from St. Louis City Circuit Court.—Hon. James E. Withrow, Judge.</p>

Louis City Circuit Court.—lion. George G. Hitchcock, Judge. The demurrer to the evidence should have been sustained. The failure to sound the gong cannot be considered. Creen v. Railroad, 192 Mo. 143. The case could not be submitted on the violation of the vigilant watch ordinance or humanitarian doctrine. McCee v. Railroad, 214 Mo. 530 ; Hawkins v. Railroad, 135 Mo.

<p>Appeal from St. Louis City Circuit Court.—Hon. William M. 'Kinsey, Judge.</p> <p>(1) Plaintiff’s first instruction, covering the case, is erroneous because it is not supported by tbe evidence. Smith v. City of Sedalia, 152 Mo. 283; Progress Press-Brick & Machine Co. v. Brick & Quarry Co., 151 Mo. 501; Hahn v. Cotton, 136 Mo. 216; Mateer v. Railroad, 105 Mo. 320. (2) Tbe court erred in instructing tbe jury on tbe measure of damages. Kroner v. Transit Co., 107 Mo. App. 41; Wallis v. Westport, 82 Mo. App. 522; Blair v. Railroad, 89 Mo. 334; Smith v. St. Joseph, 55 Mo. 456; Becker v. Real Estate Co., 118 Mo. App. 742; Plummer v. Milan, 70 Mo. App. 601; Thompson v. Railroad, 135 Mo. 217. (3) Tbe verdict is excessive. (4) The verdict is against the overwhelming weight of the evidence.</p>

<p>1. APPELLATE PRACTICE: Conolusiveness of Verdict. A verdict rendered on conflicting evidence will not be disturbed, on appeal, even though the appellate court may be of the opinion that the weight of the testimony is in favor of the losing party.</p> <p>2. COMMON CARRIERS: Damage to Shipment: Sufficiency of Evidence. In an action against a railroad company for injury to goods shipped, evidence held to sustain a finding that the goods were damaged while in the possession of defendant and before it turned them over to a connecting carrier.</p> <p>3. -: -: Evidence: Opinion Evidence. In an action against a railroad company for damages to furniture shipped, opinion evidence by experienced railroad men, that the furniture could have been braced so as to have prevented it from being broken, was properly admitted.</p> <p>4. APPELLATE PRACTIC'E: Review of Argument of Counsel: Prerequisites. An assignment of error predicated on the argument of counsel will not be considered, on appeal, in the absence of an exception to a ruling of the trial court thereon, or to its refusal to rule.</p>

Louis- City Circuit Court.—Hon. Hugo Muench, Judge. (1) The court erred in sustaining the motion to compel defendant to elect between t'he defenses in its answer. Defendant’s answer contained a general denial; a plea of assumed risk, and a plea that plaintiff’s own negligence caused the injuries. These pleas are not inconsistent. (2) The court erred in overruling the demurrer to the evidence.

Louis City Circuit Court.—Mon. Charles Claflin Allen, Judge.

Prohibition. Original Proceeding. (1) In the first place, it must he remembered that this is not a default judgment. In contemplation of law Harkins was in court at the time the judgment of the justice was affirmed. Sec. 7568, R. S. 1907. For this reason, the section of the statute upon which the respondent relies has absolutely no application. Sec. 2102, R. S. 1909, has application only to judgments by default. Blunt v. Railroad, 55 Mo. 157; Rice v. Railroad, 30 Mo.

— Hon. William T. Ragland, Judge. (1) What constitutes “indignities” as a ground for divorce depends upon tbe.facts and circumstances of each case and tbe statute should be construed liberally. 1 Bishop' on Marriage & Divorce (6 Ed.), sec. 826; 14 Cyc. 625; Hooper v. Hooper, 19 Mo. 355; Dawson v. Dawson, 23 Mo. App. 169; McCartin v. McCartin, 37 Mo. App. 471; McCann v. McCann, 91 Mo. App. 1; Rose v. Rose, 129 Mo. App.-175.

—Eon. William I. Ragland, Judge. (1) Alternative writ must require respondent to do or show cause why he has not done so. It must be in the alternative or it is no alternative writ. 26 Cyc. 447; State ex rel. v. Board of Police Comrs., 108 Mo. App. 103; 2 Missouri Practice, Bacon, sec. 1041, p. 1155-56. Alternative writ can be no broader than petition. People ex rel. v. Board of Supervisors Clark County, 84 N. E. 697, 234 HI. 62; 27 Cyc. 474.

<p>Appeal from Bollinger Circuit Court.—Hon. Peter H. Huck, Jludge.</p>

Louis City Circuit Court.—How. J. Hugo Grimm, Judge. (1) A foreign domiciliary executor or administrator cannot maintain an action in Missouri upon an asset having its situs in this State. McCarty v. Hall, 13 Mo. 480; Stearns v. Burnham, 5 Greenleaf 261; Gregory v. McCormick, 120 Mo. 662-3:; Estate of Ames, 52 Mo. 290; Morton v. Hatch, 54 Mo. 411; Naylor v. Moffatt, 29 Mo. 128; Becraft v. Lewis, 41 Mo.

St. Louis City Circuit Court.—Hon. Rhodes E. Gave, Judge. (1) The appellate court will set aside the finding of a jury which is the result of passion, prejudice or partiality. Neil v. Cunningham Store Co., 149 Mo. App. 53; Joy v. Cale, 124 Mo. App. 569; Schnick v. Street Ry. Co., 118 Mo. App. 61; Duggan v. Railroad, 46 Mo. App. 266; Empey v. Cable Co., 45 Mo. App. 422. Where a verdict is so excessive as to strike against the conscience, the court, on appeal, will interfere.

Louis City Circuit Court.—Eon. Eugene McQuillin, Judge. There being no proof that plaintiff had sustained any permanent injury, and the jury being instructed that she was not entitled to recover for such, the verdict for $6000' was grossly excessive, and the court erred in refusing to grant defendant a new trial on account thereof. Wellman v. Railroad, 219 Mo. 154; Stolze v. Transit Co., 188 Mo. 580; Dean v. Railroad, 229 Mo. 425; Taylor v. Railroad, 185 Mo. 257.

Louis City Circuit Court.—Hon. William B. Homer, Judge. (1) The demurrers to the evidence should have been sustained and the verdict is without substantial evidence to support it. First, on the theory, of negligent operation. The steam roller was lawfully on Laclede avenue and was a proper and necessary implement for the performance of defendant’s contract with the city.

—Eon. B. A. B. A. Breuer, Judge. In tbe case at bar the family relation appears from plaintiff’s evidence, and there is no evidence whatever to overcome the legal presumption that the service rendered by the one to the other member'-of the family was a gratuitous service. Therefore the court erred in refusing to give to the jury the instruction in nature of a demurrer .to the evidence asked by defendant. Mabary v. Mabary, 173 Mo. App. 437; Lambert v, Hodgdon, 172 Mo.

Louis City Circuit Court.—Ron. William M. Kinsey, Judge. (1) Under the opinion and mandate of the Court of Appeals the power and duty of the circuit court upon the retrial of the cause, was limited to finding the number of days after April 15, 1904, that the contractor was in default in the completion and delivery of the building and to give the defendant judgment against the plaintiff on the counterclaim for the number so found at the rate fixed by the contract as…

—Hon. Peter H. Huck, Judge. (1) It not appearing from plaintiff’s abstract of the record that objections to the overruling of motion for new trial and exceptions thereto were embraced in the bill of exceptions, then no matters of exception are before this court for review. Angel v. P'ortageville, 168 Mo. App. 16; Murphy v. Lorwood Cooperage Co., 168 Mo. App. 11.

<p>1. LOCAL OPTION: Municipal Census: Sufficiency of Record. Where a census was taken by a city, pursuant to Sec. 7239, R. S. 1909, authorizing the taking of such a census to determine whether the city has twenty-five hundred inhabitants or more, so as to be entitled to vote separately on the question of local . option, an entry in the journal of the board of aldfcmen, reciting that the census report filed by a designated person, showing “2521 was officially accepted by the board,” although quite informal, was a sufficient compliance with the provision of the statute requiring an entry of the result of such census to be made in the records of the city’s legislative body.</p> <p>2. EVIDENCE: Definitions: “Proof." “Proof” is defined to be the effect of evidence; the establishment of a fact by evidence.</p> <p>3. LOCAL OPTION: Municipal Census: Immunity from Collateral Attack. Where a census is taken by a city, pursuant to Sec. 7239, R. S. 1909, authorizing the taking of such a census to determine whether the city has twenty-five hundred inhabitants or more, so as to be entitled to vote separately on the question of local option, and the result of such census is entered upon the records of the legislative body of the city, such entry, or a certified copy thereof, when filed with the clerk of the county court, is binding upon the county court, precluding it from going back of the same to determine whether or not the census was false, fraudulent or void.</p> <p>4. -: -: Judicial Notice. A county court is required to take judicial notice of a census taken by a city, pursuant 183 Mo. App.—38 to Sec. 7239, R. S. 1909, authorizing cities to take a census to determine whether they have twenty-five hundred inhabitants or more so as to be entitled to vote separately on the question of local option, and especially is this true in view of Sec. 9639, which also authorizes the taking of such a census and provides that, after such census is returned, all courts of the State shall take judicial notice of the population of the city taking the same.</p> <p>5. PROHIBITION: Nature of Remedy. Prohibition is a direct, and not a collateral, attack upon the jurisdiction of the inferior court proceeded against.</p> <p>6.--: Adequacy of Other Remedies: Local Option. Where a census taken by a city, pursuant to Sec. 7239, R. S. 1909, shows that it has more than twenty-five hundred inhabitants, and the result of such census is entered upon the records of the legislative body of the city, and a certified copy thereof is filed with the clerk of the county court, prohibition will lie to prevent the county court from disregarding such census and ordering a local option election to be held in such city along with the balance of the county, since the county court has no jurisdiction to go back of such census to determine its validity and regularity; and the writ cannot be denied on the ground that the city has a complete and adequate remedy by way of an election nontest.</p>

Louis City Circuit Court.—Mon. Charles Claflin Allen} Judge. (1) The court erred in giving to the jury plaintiff’s instruction number 1, because said instruction 'submits the fact of the car stopping and plaintiff attempting to board it at Twenty-first street and Chouteau avenue, when there is no evidence of such fact. Holden v. Eailroad, 177 Mo. 469; McKoen v. Eailroad, 42 Mo. 84.

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. There is no evidence of permanent disabilities whatsoever. The only permanent injury plaintiff received was a slight scratch on the face, which would tend to disappear with time. For this slight scratch she received a verdict and judgment of $4000. Such a judgment is grossly excessive. In fact, said verdict was so grossly excessive as to be indicative of passion, prejudice and partiality on the part of the jury.

Louis City Circuit Court.—Hon. George H. Shields, Judge. (1) The undisputed evidence shows that plaintiff was a bare licensee in the home of the defendants. The rule is well settled that the owner of premises owes to a licensee no duty as to the condition of such premises -unless imposed by statute, save that he should not knowingly let him run upon a hidden peril or wantonly or wilfully cause him, harm.

—Hon. Charles B. Baris, Judge. (1) The court erred in assuming that plaintiffs were conclusively shown to he either the- real parties in interest or the trustees of an express trust, and also erred in excluding evidence to the contrary. Sec. 1729, E. S. Mo. 1909; Dickey v. Porter, 203 Mo. 1; Chrismann-Sawyer Banking Co. v. Independence Mfg. Co., 168 Mo. 650; Steward v. Price, 64 L. R. A. 581; Sinker v. Floyd, 104 Ind. 291 (see note 64 L. E. A. 621); Bank v. Crump, 116 Mo.

<p>Appeal from Reynolds Circuit Court.—Hon. E. M. Bearing, Judge.</p> <p>(1) Fee statutes must be strictly construed. Ring v. Vogel, 46 Mo. App. 377; Miller v. Muegge, 27 Mo. App. 670; Shed v. Railroad, 67 Mo. 687; Gordons v. Maupin, .10 Mo. 352; Ford v. Railroad, 29 Mo.App. 616; Watkins v. McDonald, 70 Mo. App. 362. (2) The fee allowed by statute for services rendered in this case is twenty cents. R. S. 1909, Sec. 10692, 10178, 10712; R. S. 1855, Chapter LXIV; Laws 1865, ppi 29 to 42 inclusive; General Statutes 1865, Chap. 32, pp. 173 to 182.</p> <p>The notary was entitled to a fee of 50 cents. Sec. 10712, R. S. 1909.</p>

Louis City Circuit Court.—Hon. George C. Hitchcock, Judge. The trial court committed error in granting respondent a new trial on the ground that it erred in excluding evidence offered by said respondent in rebuttal. Said evidence was palpably cumulative of that already introduced by respondent in his case in chief. Stahlman v. United Railways Co., 183 Mo. App. 144.

—Hon. E. M. Dearing, Judge. (1) The petition alleges specific negligence and the proofs are directed to a single defect and plaintiff is held to establish the negligence alleged unaided by any presumption. Brit v. Crebo, 158 S. W. 68; Gibler v. Railroad, 128 S. W. 791; MeGratb v. Transit Co., 94 S. W. 872; Evans v. Railroad, 121 S. W. 36; Orcutt v. Century Bldg.

<p>1. JUSTICES’ COURTS: Jurisdiction: Record. It is essential, in a. case instituted in a justice’s court, that the jurisdictional facts appear on the face of the record, as no intendments or presumptions obtain in aid of its jurisdiction.</p> <p>2. -: Appeal to Circuit Court: Jurisdiction. Where a justice of the peace has no jurisdiction of a case, the circuit court acquires none on appeal.</p> <p>3. -: Jurisdiction: Action on Account. Under Secs. 7412 and 7413, R. S. 1909, the account filed in a justice’s court, in an action on an account, is the foundation of the action, and is to be looked to for the purpose of determining whether the justice has jurisdiction.</p> <p>4. -: -: -. An action on an itemized account totalling $500.16, exclusive of interest, without any credit or remission of any sum, is not within the jurisdiction of a justice of the peace of the city of St. Louis, in view of Sec. 7615, R. S. 1909, limiting the jurisdiction of such justices to demands not exceeding $500, exclusive of interest and costs.</p>

Louis City Circuit Court.—Hon. Hugo Muench, Judge. (1) No counsel fees are recoverable by Spencer and Milliken because the restraining order did not enjoin them, but only enjoined other defendants. Holloway v. Holloway, 103 Mo. 274; Buford v. Packet Co., 3 Mo. App. 172; Albers Co. v. Spencer, 236 Mo. 631.

<p>1. MARRIED WOMEN: Ratification of Contract: Adoption. A married woman may ratify an adoption of a child made by her before the passage of Sec. 8304, R. S. 1909, authorizing a married woman to contract as a femme sole.</p> <p>2. -: -. Ratification by a married woman, after the removal of the disability of coverture, is valid.</p> <p>3. ADOPTION: Parol Adoption: Sufficiency of Evidence. In an action to establish the parol adoption of children, evidence held sufficient to establish the fact of such adoption by acts estopping the adoptive parents and those claiming under them from disputing it, so as to entitle plaintiffs to take as heirs of one of the adoptive parents, who died intestate.</p> <p>4. -: -. The adoption of a child may be established by acts and conduct, where no legal deed of adoption has been executed and recorded in due form of law.</p> <p>5. -: Rights of Adopted Children: Wills. One who adopts children without contracting to leave anything to them may, by will, dispose of the bulk of his estate to others, provided he named them in his will as children and thereby disclosed that he had them in mind when he disposed of his estate.</p> <p>6. -: -. Where a husband and wife adopted children, and the husband died, naming the children in his will and leaving the bulk of his property to his wife, who subsequently died intestate, the adopted children took as her heirs.</p> <p>7. -: -: Laches: Statute of Limitations. Where a husband and wife adopted children, and the husband died, naming the children in his will and leaving the bulk of his property to his wife, who subsequently died intestate, the adopted children had no rights as heirs until the death of the wife, and an action brought two years and four months after her death was not barred by laches nor the five or ten-year Statute of Limitations.</p> <p>8. -: --: -:-. Where a husband and wife adopted children, by acts and conduct constituting a parol adoption, and the husband died, naming the children in his will and leaving the hulk of his property to his wife, who subsequently died intestate, the natural father could not maintain an action on behalf of the children to enforce their rights prior to the death of the wife, since their right did not accrue until the wife died, and prior to that time it could not he determined whether the adoption had been repudiated or recognized.</p> <p>9. -: -: Enforcement of Rights: Jurisdiction of Circuit Court. The circuit court has jurisdiction of a suit in equity to establish a parol adoption of children, pending administration in the probate court of the estate of the decedent alleged to have adopted them.</p> <p>10. JURISDICTION: Waiver. The lack of jurisdiction of a court over the subject-matter cannot he waived.</p>

<p>1. FIRE INSURANCE: Evidence: Admission of Liability: Compromise. In an action on a fire insurance policy, held that a statement made by an adjuster of the insurance company, that the company would only give fifty cents on the dollar, was not objectionable on the ground that it was made during negotiations for a compromise, in view of the fact that the evidence disclosed that it was made in an interview between the adjuster and insured relative to the adjustment of the loss and the making of proofs thereof, and not in an effort to compromise.</p> <p>2. -: Defenses: Misrepresentations. A fire insurance company was not released from liability because a paster, attached to the policy when the property insured was moved from one building to another, stated that such property was located in a building used as a dwelling, whereas it was a mercantile building, where, at the time the paster was attached, insured stated the true facts to the agent of the company.</p> <p>3. -: Sufficiency of Proof of Agency. In an action on a fire insurance policy, evidence held to warrant a finding that a broker, through whom the policy was procured, was the agent of insurer, rather than insured.</p> <p>4.--: Damages for Vexatious Delay: Sufficiency of Evidence. In an action on a fire insurance policy, evidence held to warrant a finding of vexatious delay in payment of the loss, justifying an award of ten per cent damages and an attorney’s fee, under Sec. 7068, R. S. 1909.</p> <p>5. INSURANCE: Damages for Vexatious Delay: Assignability. The right to an award of ten per cent damages and an attorney’s fee, under Sec. 7068, R. S. 1909, on account of vexatious delay in payment of the loss, may be assigned, along with the right of recovery by insured.</p> <p>6. APPELLATE PRACTICE: Damages for Vexatious Appeal. A penalty should not be assessed against an insurance company, under Sec. 2084, R. S. 1909, on the theory that its appeal was vexatious, where, although its main defense was based on a very narrow technicality, it appeared that it was sufficiently penalized ,by an allowance to plaintiff of ten per cent damages and an attorney’s fee in the trial court, for vexatious refusal to pay.</p>

Appeal ‘from St. Louis City Circuit Court.—Hoto. J. Hugo Grimm, Judge. (1) A surety is a favorite of tiie law, lias a right to stand on the strict terms of his contract, and is bound only to the extent in the manner and under the circumstances pointed out in the obligation. Martin v. Whites, 128 Mo. App. 117; Reissaus v. Whites, 128 Mo. App. 135. (2) When the obligation of a bond is one of indemnity, damages must be sustained before there can be a recovery on it.

Appeal' from St. Louis City Circuit Court.—Hon. George C. Hitchcock, Judge. (1) Plaintiff’s instruction number 1 is erroneous, because it permitted a recovery by plaintiff if the jury found that the conductor failed to keep a vigilant watch, as required by the so-called “Vigilant Watch Ordinance” of the city of St. Louis, when, under the law, a recovery could lie had only in the event the motorman failed to keep such lookout. G-ebhardt v. St. Louis Transit Co., 97 Mo.