Volume 184 — Missouri Appeal Reports

<p>Appeal from Wayne Circuit Court. — lion. E. M. D earing, Judge.</p> <p>(1) The evidence in this case was insufficient to authorize a recovery on the part of plaintiff, and the court should have so declared. R. S'. 1909, sec. 2021; Swearinger v. Railroad, 221 Mo. 644; Clark v. Clark, 59 Mo. App. 532; Wesby v. Bowers, 58 Mo. App. 419; Spiro v. St. Louis Transit Co., 102 Mo. App. 250. (2) There is no evidence in the record that Carroll, the alleged author of plaintiff’s exhibit “A,” was the agent of defendant, or that his relations to defendant were such that gave him the authority to employ Warren or to give Warren permission to start in motion the agency which resulted in plaintiff’s damage. 31 Cyc. 1643, 1652; Knoche v. Whiteman, 86 Mo. App. 568; Salmon Palls Bank v. Leyser, 116 Mo. 51; Diel v. Railroad, 37 Mo. App. 454; Waters-Pierce Oil Co. v. Zinc Co., 98 Mo. App. 324; Glencoe Lime & Cement Co. v. Clore, -Mo. App. -, 153 S. W. 542; Groneweg & Schoentgen Co. v. Estes, 144 Mo. App. 418; 16 Cyc. 1005; Helm v. Railroad, 98 Mo. App. 148; Hodkinson v. McNeal Machinery Co., 161 Mo. App. 87.</p>

Louis City Circuit Court. — lion. George H. Shields, Judge. Defendant’s demurrer to tlie evidence should have been sustained for the following reasons: First, Because it shows that plaintiff failed to exercise ordinary care in looking’ and listening for the street car, under the circumstances; Second, Because he drove his horse in a place of danger and at such a rate of speed as prevented him from averting an accident, after he saw or could have seen that one was imminent;…

—Hon. R. G. Rcmney, Judge. Tlie court erred in giving defendant’s instruction number 7. Wilson v. Crocket, 43 Mo. 216; Bowles v. Lewis, 48 Mo. 32; Hloes v. Wurnser & Lewis, 34 Mo. App. 457. The instructions are free from error. State ex rel. Redman v. Durant, 53 Mo. App. 496; Steward v. Nelson, 79 Mo. '524; Live Stock Com. Co. v. Hunter, 91 Mo. App. 418.

Louis City Circuit Court. — Hon. Eugene McQuilUn, Judge. (1) The court erred in giving to tbe jury plaintiff’s instruction number 3. G-raefe v. Transit Co., 224 Mo. 232. (2) Tbe court erred in permitting Dr. Kobromel to testify, over defendant’s objections, that a miscarriage suffered by plaintiff was one of tbe results of the accident. Castanie v. United Railways Company, 249 Mo. 192.

Louis City Circuit Court. — Hon. Eugene McQiullin, Judge. Tbe court erred in allowing the plaintiff to make the certain parties, and especially Florence M. Dale (the owner of the property), parties to the suit after ninety days froin the date of filing the lien. R, S. 1909, sec. 8228; Fury v. Boeckler, 6 Mo. App. 24; Bombeck v. Devorss, 19 Mo. App. 38; Smith v. Barrett, 41 Mo. App. 460'; Western Brass Mfg. Co. v. Boyce, 74 Mo.

— Hon. Henry C. Riley, Judge. The court had no jurisdiction of the subject-matter of the cause of action pleaded in the first count of the petition. State courts have no jurisdiction of an action for damages for overcharge in freight on an interstate shipment, jurisdiction of such an action being exclusive in the Federal courts.

— Hon. W. 8. C. Walker, Judge. (1) One is not liable for mere- expression or statement of bis opiDion as to the value of property, tbougb defendant was deceived thereby. Mere loose talk and brag about values of any property will not make tbe utterer liable. Such language is taken for wbat it is worth and is never believed without examination. Franklin v. Halle, 7 Mo. App. 241; Anderson v. McPike, 86 Mo. 293.

— Eon. Charles B. Paris, JudF«. (1) Instruction number one, given on behalf of plaintiff, is erroneous: ' Because it submitted to the jury a mixed question of law and fact, whether the train employees ejected plaintiff from the train “without any justification or excuse.” Boot & Shoe Co. v. Bain, 46 Mo. App. 581; Clem v. Railroad, 119 Mo. App. 249; Allen v. Transit Co., 183 Mo. 411; Neff v. City of Cameron, 213 Mo. 365.

— Hon. W. 8. C. Walker, Judge. (1) In charging sale of beverage not known to be intoxicating, the indictment or information must allege that it is intoxicating and it is not only necessary to allege that the beverage sold is intoxicating, but it devolves upon the State to prove that it is intoxicating. State v. Houts, 36 Mo. App. 265-.

— Hon. W. 8. C. Walker, Judge. (1) To authorize a conviction for wife abandonment, under this section of the statute, it is incumbent on the State to prove beyond a reasonable doubt that the alleged abandonment was without good cause and with criminal intent, and that the defendant with such criminal intent, willfully failed to provide for his wife. State v. Greenup, 30 Mo. App. 299; State v. Brenkham, 40 Mo. App. 284; State v. Satchwell, 68 Mo.

— Ho». W. 8. C. Walker, Judge. (1) There is no evidence in this record even tending to prove that J. E. Parrish was the agent of Ruth C. O’Connor with power and authority as such to assign the note in suit to respondents. Hardesty v. Newby, 28 Mo. 567; Paper Mfg. Co. v. Bank, 199 Ill. 151; Jackson v. Bank, 92 Tenn. 154; Goodfellow v. Landis, 36 Mo. 168 ; Quigley v. Bank, 80 Mo. 289; Smith v. Johnson, 71 Mo. 282; Cannon v. Gibson, 162 Mo.

— Hon. W. S. C. Walker, Judge. (1) When the replevin suit in the justice court was dismissed and the property was redelivered by the plaintiff to the constable to be turned over to the defendant,the defendant being unwilling that the plaintiff should have the possession of it, it was wrongfully detained by the defendant, within the meaning of the law of replevin.

— ífo». W. 8. G. Walker, Judge. (1) The court should have directed a verdict for the appellant on the' plaintiff’s own testimony. Eyan v. Kansas City, 134 S. W. 566 ; Border v.. Sedalia, 144 S. W. 161; Coffey v. Carthage, 85 S. W. 532; Wheat v. St. Louis, 78 S. W. 792; Kaizer v. St. Louis, 84 S. W. 19; Woodson v. Railroad, 123 S. W. 820; Diamond v. Kansas City, 90 S. W. 492.

<p>The opinion of the Springfield Court of Appeals in this case (149 Mo. App. 367) is adopted as the opinion of the court.</p>

— Hon. W. 8. G. Walker, Judge. (1) Section 3150, on which this action is based, does not require the railroad company to construct or maintain openings through and across its roadbed and right of way, except to connect with ditches, drains or watercourses.

<p>Grimes v. Railroad, ante, p. 117, followed.</p>

<p>Grimes y. Railroad, ante, p. 117, followed.</p>

— Hon. Charles B. Farris, Judge. (1) Plaintiff was entitled to recover for pain and mental anguish, as well as punitive damages, under the facts pleaded in the petition in this ease, and the trial court committed grievous error against appellant in sustaining respondent’s motion to strike out the allegations in the petition pertaining thereto. Wilson v. Railroad, 160 Mo. App. 649; Litteral v. Litteral, 131 Mo.

<p>1. UNLAWFUL DETAINER: Prerequisites to Recovery: Landlord and Tenant. An action of unlawful detainer, under Sec. 7657, R. S. 1909, lies only where the relation of landlord'and tenant exists between the parties.</p> <p>2. LANDLORD AND TENANT: Tenancy at Will. A verbal lease ,of land, indefinite as to time, operates as a tenancy at will.</p> <p>3. -: -: Termination. A tenancy at will of land outside of a city, town or village operates, by construction, as a tenancy from year to year, terminable by the landlord by giving proper notice.</p> <p>4. UNLAWFUL DETAINER: Landlord and Tenant: Instructions: Submitting Existence of Relation. In an action of unlawful detainer, plaintiff relied on the termination of a verbal lease, which did not reserve rent, by the giving of proper notice of termination. Defendant’s theory was, that he was not a tenant, but was merely a squatter. The court instructed, on behalf of defendant, that although defendant went on the land, with the permission of plaintiff, to hunt and fish, yet that fact alone did not create the relation of landlord and tenant, and unless ■ the jury found that defendant was the tenant of plaintiff, their verdict must be for defendant, and that, before plaintiff could recover, the evidence must show that defendant rented or leased ’ the land from plaintiff and entered into possession thereof as tenant or lessee of plaintiff, and continued as such tenant or ' lessee until the commencement of the action. The court modified an instruction requested by plaintiff, to the effect that if ‘ defendant entered into possession of the land by plaintiff’s permission or consent, the finding should be for plaintiff, by requiring the jury to find that defendant entered into such posse°ssion pursuant to an agreement whereby the land was rented or let to him- by plaintiff. Held, that the instructions given for defendant, when read with the modified instruction given by the court, were erroneous, in that they impliedly charged the jury that, in order to create the relation of landlord and tenant, there must, be a renting of the land, in the sense that rent is reserved.</p> <p>5. LANDLORD AND TENANT: Existence of Relation: Rent. The relation of landlord and tenant ‘ arises from a contract by which, one person occupies the property of another with his permission and in subordination to his right, and it is not essential that rent be reserved.</p> <p>6". -: “Tenant” Defined. A tenant is one who occupies the premises of another in subordination to the latter’s title, and with his assent, express or implied.</p>

— Eon. W. 8. C. Walker, Judge. (1) The charges for sending the message were not paid by the plaintiff at the time of tendering the message for transmission and hence plaintiff is not entitled to the penalty. See. 3330, R. S. 1909; Eddington v. Western Union, 115 Mo. App. 93 ; Adcox v. Western Union, 171 Mo. App. 331; Brockman Com. Co. v. Western Union, 163 S. W. 920.

—Hon. W. S. C. Walker, Judge. (1) No notice as required by Sec. 7483, R. S. 1909, of the setting of this cause and of the granting of the change of venue herein to justice C. A. Crane having ever been served upon appellant W. W. Norman, justice of the peace C. A. Crane was without any juris-, diction to render any judgment whatever against this defendant, and therefore the circuit court of Stoddard county was without any juridiction to render the judgment herein against this…

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.. When a-party to a contract has done his full duty under the contract and his right to compensation for his duty done depends upon an act which the other contracting party must do, then such other party cannot rely on his own inability to perform to prevent the first party from recovering his compensation.

— Hon. W. S. G. Walker, Judge. (1) The court erred in refusing to give plaintiff’s instruction number 2. Plaintiff was entitled to have the jury instructed that in determining the credibility of the witnesses they might take into consideration their interest in the result of the suit. Bunker v. Hibler, 49 Mo. App. 563; R. S. 1909, Sec. 6354; Thompson on Trials (2 Ed.), sec. 2418. (2) The court erred in giving defendants’ third instruction.

<p>Appeal from Stoddard Circuit Court. — How. W. S. C. Walker, Judge.</p>

— How. Henry C. Riley, Judge. The execution was void because it does not properly describe the 'judgment on which it was issued. Executions must be founded upon and properly describe the judgment, for otherwise they are without force. Rankin v. Real Estate Co., 199 Mo. 352.

— Hon. W. S. C. Walker, Judge. (1) Any agreement or arrangement the plaintiff had with the agent who sold the ticket which expressly or impliedly attempted to authorize the plaintiff to be carried for less than the regular interstate tariff rates between interstate points was void and gave plaintiff no right to be so carried.

Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge. (1) On Ms own testimony tlie plaintiff was not entitled to a decree, (a) He testified that lie knew before tbe marriage tbat tbe defendant was a negress, and bence be knowingly committed a criminal offense. Tbe purpose of Ms bill is to obtain relief from bis own illegal act.

<p>1. RAILROADS: Tram Railroads: Equipment of Engines: Negligence. Held, by REYNOLDS, P. X, that, in view of the fact .that Sec. 3170, R. S. 1909, expressly exempts tram railroads employed in the hauling of logs from the provisions of Secs. 3165 to 3172, inclusive, which require railroad engines and cars to be equipped with power and air brakes, automatic couplers and other safety devices, the failure to equip the engines of such a tram railroad with such devices is not negligence per se; but this provision does not relieve the operator of such a railroad from so equipping its engines that they can be operated with safety.</p> <p>2. -: -: -: Injury to Servant: Proximate Cause. In an action for injuries sustained by a fireman and brakeman of a tram railroad log train, caused by the movement of one of the cars, which was coupled to the engine, while he was endeavoring to uncouple it from another car, held by REYNOLDS, P. X, that the evidence did not warrant a recovery on the ground that the engine was not equipped with brakes, since it was not shown that the injury was due to the fact that the engine was not so equipped.</p> <p>3. EVIDENCE: Conjecture: Probative Force. Held, by REYNOLDS, P. J., that a verdict must rest upon facts, and not upon supposition, guess, or conjecture.</p> <p>4. RAILROADS: Tram Railroads: Injury to Servant: Assumption of Risk. In an action for injuries sustained by a fireman and brakeman of a tram railroad log train, caused by the movement of one of the cars, which was coupled to the engine, while he was endeavoring to uncouple it from another car, held by REYNOLDS, P. J., that plaintiff could not recover on the theory that defendant was negligent in failing to equip the engine with brakes, since plaintiff had worked about the engine four or five weeks before the accident and knew that it had no brakes and exactly how it and the train were operated, and hence assumed the risk of injury arising from the failure to equip it with brakes.</p> <p>5. -: F&llow Servant Act: Applicability to Tram Railroads. Held, by REYNOLDS, P. X, that Sec. 5434, R. S. 1909, abolishing the common-law fellow-servant rulé, does not apply to a tram railroad used by a manufacturing company in transporting Jogs to its saw mill, since that section, in terms, is confined to railroad corporations owning or operating a railroad.</p> <p>6. MASTER AND SERVANT: Tram Railroad: Injury to Servant: Instructions. In an action for injuries sustained by a fireman and brakeman of a tram railroad log train, caused by the movement of one of the cars, which was coupled to the engine, while he was endeavoring to uncouple it from another car, held by REYNOLDS, P. J., that an instruction given for plaintiff, that if the jury found that plaintiff’s injury was caused by “the negligence of the engineer of said train to hold, guard and protect said train and keep the same from moving backwards while plaintiff was between the cars therof to uncouple the rear car of said train,” was erroneous, for the reason that it is so worded as to make the engineer a guarantor of plaintiff’s safety, when, even assuming he was a vice principal, defendant could only be charged with his negligence in failing to use ordinary care and caution in attempting to hold, guard and protect the train, etc.</p> <p>7. RAILROADS: Tram Railroads: Injury to Servant: Fellow Servant: Dual Capacity Doctrine. In an action for injuries sustained by a fireman and brakeman of a tram railroad log train, where it was shown that the engineer had charge of the locomotive and train and that the master had clothed him with authority to order and direct the movement of plaintiff, held by NORTONI, J., with whom ALLEN, X, concurs, that although the engineer and plaintiff were fellow servants, generally speaking, yet the engineer, under the dual capacity doctrine, was a vice principal when giving orders and directions, and the employer was liable if it failed to exercise ordinary care to furnish plaintiff with a reasonably safe place to work while between the cars, pursuant to the engineer’s orders, uncoupling two of the ears, by causing or permitting the locomotive and cars to back against plaintiff, whereby he sustained his injuries; and there being evidence that the engineer did not exercise ordinary care in this respect, the question of defendant’s negligence was for the jury.</p> <p>Held, by REYNOLDS, P. X, dissenting, that in view of the fact that the engineer .had no power concerning the employment or discharge of plaintiff, and that they together constituted the crew operating the train, they were fellow servants in operating it (Sec. 5434, R. S. 1909, not being applicable), and hence the employer was not liable for the negligence of the engineer; the order given by the engineer to plaintiff being a mere direction given in the course of his ordinary employment.</p> <p>8. -: -: -: Instructions. In an action for injuries sustained by a fireman and brakeman of a tram railroad log train, caused by the movement of one of the cars, which was" coupled to the engine, while he was endeavoring to uncouple it from another car, held by NORTONI, X, with whom ALLEN, X, concurs, that the instructions given for plaintiff contained reversible error.</p>

— Eon. Eem-y G. Riley, Judge. The court erred in giving instruction number two for and on behalf of the relator, over the objection and exception of appellants at the time.

-Louis City Circuit Court. — Bo». W. B. Homer, Judge. (1) Mr. J. W. Skinner liad no interest in the body of the estate upon which he sought to administer. The only interest he had was in the profits, if there were any, and as there were no profits the trial court erred in allowing one-half of the estate which had been put into the venture by Mr. Whitlow, alone. Mr. Skinner risked nothing.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) A party to a lawsuit is bound by tbe theory upon which he tries the case below. Mirrielles v. Railroad, 163 Mo. 470; McQuillin on Instructions to Juries in Missouri, Civil Cases, sec. 294.

Louis County Circuit Court. — Hoot. John W. McElhmney, Judge. (1) The court erred in admitting the lien claim in evidence against this appellant, because the same shows that the lien account is dated March 15, 1909, and that the whole account is furnished in 1909, last item being dated September 7, 1909. Therefore the lien claim which was filed December 19, 1910 (not 1909), was filed more than four months after last item accrued.

<p>1. STATUTE OF FRAUDS: Debt or Default of Another: What an Original Promise. A promise by an executrix, wbo was sole beneficiary of the estate, to pay attorneys employed by her individually to defend a claim against the estate was an original promise not required to be in writing. (Sec. 2783, R. S. 1909.)</p> <p>2. APPELLATE PRACTICE: Verdict: Setting Aside: Weight of Evidence. Appellate courts do not set aside verdicts as against the weight of evidence and in the absence of some showing that the trial court did so, the appellate court will not assume that it did.</p> <p>3. -: New Trial: Grounds: Specifying. A party relying on some valid ground for sustaining a motion for a new trial other than that specified by the court, must discover and point out such ground.</p> <p>4. ATTORNEY AND CLIENT: Negligence of Attorney in Trial of Case: Difficulty in Determining. Whether defendants attorneys were negligent in failing to introduce evidence held not determinable where all the facts and the whole situation as it presented itself to the attorneys were not before the court.</p> <p>5. ----: Attorney’s Authority: Theory of Case. In an action by an attorney for attorney’s fees which was defended on the ground of attorney’s negligence in the conduct of the case, during the progress of the trial defendant, by her attorney, informed the court that the only negligence complained of was a failure to perfect an appeal in the case in which plaintiff’s attorney had represented her. Defendant was bound by this statement and is held to the same theory in thfe appellate court.</p> <p>6. ATTORNEY AND CLIENT: Skill Required of Attorney. An attorney who undertakes the management of business committed to his charge, thereby impliedly represents that he has the skill and will exhibit the diligence ordinarily employed and possessed by well-informed members of his profession in the conduct of business such as he has undertaken.</p> <p>7. -: Skill Required of Attorney: Error of.Judgment. While an attorney must be acquainted with the statutes and the settled rules of law and practice in the courts in the locality in which he practices and is responsible for loss to his client resulting from ignorance thereof, yet an error of judgment upon a controverted point of law does not render him liable for damages resulting from such error.</p> <p>8. -: Action by Attorney for Services: When No Recovery. When the services of an attorney are of no avail to the client on account of the attorney’s lack of ordinary skill and diligence, he cannot recover compensation for such services.</p> <p>9. -: Action by Attorney for'Compensation: Questions of Law. Action by attorney for compensation for legal services. Defended on the ground of negligence. Where the sole' question was as to the sufficiency of an affidavit for appeal which the attorney had prepared, the question of negligence or want of skill is one of law.</p> <p>10. -: Question for Jury: Expert Evidence. It is a question for the jury, on expert evidence only, whether a certain act, as the filing of an affidavit for appeal in certain form shows that the attorney is not possessed of ordinary skill.</p> <p>11. -: Skill Required of Attorney: Actions for Negligence: What Must Be Shown. In order to render an attorney liable for damages or to defeat Ms recovery for his services on the ground of negligence or want of skill, it must be shown that the alleged act of negligence worked injury and loss to his client and it is incumbent on the client to establish that fact.</p> <p>12. APPELLATE PRACTICE: Appeal: Writ of Error. While a writ of error is denominated a new suit and an appeal is a continuation of the former one, yet for all practical purposes the one is as effective as the other in having errors of the trial court corrected by an appellate court.</p> <p>13. ATTORNEY AND CLIENT: Action for Services: Defense. Granting that an insufficient affidavit for appeal was filed by an attorney, this would not defeat recovery for his services, where the client employed and consulted another attorney to advise further in the conduct of the case and that attorney compromised and settled the case, there being abundant time to have had the judgment reviewed by writ of error.</p>

<p>Appeal from Maries County Circuit Court. — Hon. J. G. Slate, Judge.</p> <p>(1) Only authority for respondent to do this paving in question was the verbal request of the mayor and street committee. This was beyond their authority and did not bind the appellant. Clay v. Mexico, 92 Mo. App. 619; Thrush v. Cameron, 21 Mo. App. 394; 0’Dwyer v. Monnett, 123 Mo. App. 184; State ex rel. v. Fort, 210 Mo. 556; Murphy v. City of Albina, 29 Pac. 354. (2) General ordinance is not sufficient to authorize street improvements. City to use v. Eddy, 123 Mo. 559. (3) There was no contract in writing for this paving in question; and unless it is in writing it is void, and being void canpot be ratified. Sec. 7, ordinance 37, page 41, abstract; Secs. 2778-2779, R. S. 1909; Cotter v. Kansas City, 251 Mo. 224; Cook & Son v. Cameron, 144 Mo. App. 137; Anderson v. Ripley County, 181 Mo. 46; Crutchfield v. Warrensburg, 30 Mo. App. supra; Compressed Air Co. v. Fulton, 166 Mo. App. 29; State ex rel. v. Dierkes, 214 Mo. 587; Savage v. Springfield, 83 Mo. App. 323; Perkins v. School District, 99 Mo. App. 483. (4) The petition states no cause of action, therefore no valid judgment can be rendered thereon. This objection is available at any stage of the proceedings. Rundelmann v. Boiler Works, — Mo.--, 161 S. W. 609; Jones v. Lumber Co., - Mo. -, 157 S. W. 864.</p> <p>(1) The city of Rolla had the right under its charter to make the complained of improvements at the expense of the city for the general good, and for the safety and convenience of the people. The -improvement of the streets is clearly within the scope of its powers. Secs. 9371, 9400, 9401, 9412, R. S. 1909; 28 Cyc. 634. (2) After the work was completed the council accepted it by resolution. This resolution was passed by the affirmative votes of five members of the council — a majority — was approved by the mayor and attested by the city clerk. This resolution, having been passed with the same formality as an ordinance is passed, took the place of an ordinance. McEvilly v. Knott, 49’ Mo. App. 616 ; Wheeler v. P'oplar Bluff, 149 Mo. 45; Poplar Bluff v. IToag, 62 Mo. App. 675 ; Mulligan v. Lexington, 126 Mo. App. 719. (3) The work was within the scope of the city’s inherent and charter powers, and the council had the right by ordinance to ratify and pay for it. Dillon on Municipal corporations (5 Ed.), secs. 297 and 299; Steffen v. Fox, 135 Mo. 44; Imler v. Springfield, 30 Mo. App. 679’; Heman. v. St. Louis, 213 Mo. 546; Moore v. City of Albany, 98 N..Y. 396; Devers v. Howard, 88 Mo. App. 261; Water Co. v. Aurora, 129 Mo. 583; State ex rel. v. Milling Co., 156 Mo. 634; Whitworth v. Webb City, 204 Mo. 601; City to use v. Armstrong, 56 Mo. 298; Hill v. Indianapolis, 92 Fed. 467; St. Louis v. Ruecking, 232 Mo. 342. (4) The city is estopped to deny its liability under thé facts presented by this record. The same rule that would apply to individuals will be applied to the city in this case. Depot Co. v. St. Louis, 76 Mo. 396; Stealey v. Kansas City, 179 Mo. 407; Edwards v. Kirkwood, 147 Mo. App. 616; Wilson v. Drainage District, 158 S. W. 940; Simpson v. Stoddard County, 173 Mo. 463'.</p>

<p>Appeal from Dunklin County Circuit Court. — Ron. T. R. R. Ely, Special Judge.</p> <p>(1) Appellant, National Life Association, is an assessment company. McCoy v. Bankers Life Assn., 134 Mo. App. 35. (2) The beneficiary named in a policy of insurance in an assessment company must have an insurable interest in tbe life of the assured and the rule of law permitting a person himself to insure his own life for the benefit of another is abrogated by the statute so far as assessment companies are concerned. R. S. 1909, sec. 6956. (3) Assessment insurance companies are expressly exempted by statute from the provision of the general insurance laws, allowing damages and attorney’s fees for vexatious delay. R. S. 1909, sec. 6959. (4) In an action on an insurance policy by a creditor named as the beneficiary or by assignment, it is necessary to both aver and prove an insurable interest and prove the exact amount of the debt due from the assured. Singleton v. Insurance Co., 66 Mo. 63; Ryan v. Insurance Co., 117 Mo. App. 688; Crotty v. Ins. Co., 144' U. S. 621; Locke v. Bowman, 168 Mo. App. 121. (5) A person cannot procure insurance on his life for benefit of a creditor further than is necessary to secure the debt and premiums to keep same alive. Mutual Life Ins. Co. v. Richards, 99 Mo. App. 88; Deal v. Hainley, 135 Mo. App. 507; Locke v. Bowman, 168 Mo. App. 121. (6) One person cannot procure insurance on the life of another. ITewsner v. Insurance Co., 47 Mo. App. 336; Ryan v. Insurance Co., 117 Mo. App-. 688; Deal v. Hainley, 135 Mo. App. 508. (7) Future or prospective obligations will not support an insurable interest in the absence, of a contract entered into at the time of taking ont the insurance or the assignment of the policy to the effect that the policy is to secure such future advancements or prospective obligations as well as the present indebtedness. Deal v. Hainley, 135 Mo. App. 508; Bruer v. Ins. Co., 100 Mo. App. 540.</p> <p>(1) In this State it is settled law that it is not the nature of the society nor the character of the insurance or contract it may write but the terms of the contract which determines whether it is exempt from the general statute governing insurance. Williams v. Ins. Co., 189 Mo. 70; Toomey v. Supreme Lodge, 147 Mo. 129; McDonald v. Bankers Life Assn., 154 Mo. 618; Folkens v. Ins. Co., 98 Mo. App. 480; Wilson v. Arner. Benev. Assn., 125 Mo. App. 597. (2) Both the application and the policy sued on in this cause states that D. C. Morrow, the beneficiary in said policy bears the relation of creditor to the insured. There being no statute in this State defining an insurable interest mentioned in Sec. 6956, E. S. 1909, the common law will prevail as to what constitutes an insurable interest. Warnock v. Davis, 104 II. S. 775; Mutual Life Ins. Co. v. Lucks, 108 II. S'. 498; Wilkinson v. Life Ins. Co., 63 Mo. App. 404. (3) Eespondent did aver and prove an insurable interest as a creditor of the insured. He also proved that this policy was taken out by Vines of his own volition and that he intended for Morrow to have the whole of the policy at the time he took the same out, and the questions of fact were fairly submitted to a jury and a verdict for respondent, and respondent ought to recover the full policy. Strode v. Drug Co., 101 Mo. App. 627; Deal v. Hainley, 135 Mo. App. 507; Mutual Life Ins. Co. v. Eichards, 99 Mo. App. 88; Warnock v. Davis, 104 U. S. 775. (4) Eespondent concedes that one person cannot procure insurance on the life of another, unless he does so to secure a debt and then he could only collect the amount of the debt, and premiums if paid by him, but the facts in the cause at bar show the insurance was not procured by Morrow, respondent herein, but that the same was taken out by Vines, the insured, of his own volition and with the intention that Morrow was to receive the full policy, and hence the cases cited are not in point. (5) Should the court hold that respondent’s instruction number 1 did not properly declare the whole law of the case, the error, if any, has been cured by appellant’s instructions numbers 1, 2, 4, 5, 6, 7, 8, 9,10,12,13,14,16,17,18,19 and 20, which fairly submit all the issues raised by both respondent and appellant, and all errors, if any, were cured. Scott Force Plat Co. v. Hombs, 127 Mo. 403; Reames v. Jones D. G. Co., 99 Mo. App. 403.</p>

— Hon. Joseph D. Perkins, Judge. (1) There is an entire failure of proof in this case. The defendant is charged with “operating and maintaining a telephone company within the corporate limits of the city of Neck City without first having had and obtained a license therefor.” There is no evidence that defendant operated a telephone company in Neck City. The record simply shows that defendant was an employee or agent of the Home Telephone Company.

<p>1. PLEADING: Total or Partial Failure of Consideration. On a plea of total failure of consideration set up by answer to a petition on a note, a defense of partial failure may be made— authorities discussed.</p> <p>2. CORPORATE STOCK: Transfer: Certificate: Delivery. The ordinary mode of the transfer of stock in a corporation is by a transfer and delivery of the certificate of stock. The case of White v. Salisbury, 33 Mo. 150, has not been followed by the Supreme Court.</p> <p>3. BILLS AND NOTES: Consideration. Whether the notation in a note of the consideration for which it was given will affect its negotiability under Sec. 9974, R. S. 1909, need not be considered, since that was not a theory on which the case was tried.</p> <p>4. TENDER: Profert In Court: Stock. Where a note is given for purchase price of stock in a corporation and the maker informs the seller that he will not be able to pay the note, while this may be an. excuse for not tendering the stock before suit is brought, it will not excuse its being tendered into court. The seller has no right to the price while withholding the stock.</p>

— lion. Kimbrough Stone, Judge. (1) It filed its bond and affidavit for appeal after judgment which was a further entry of appearance and its motion in the circuit court made no claim that the justice had no jurisdiction over the person of the garnishee. Trimble v. Elkin, 88' Mo. App. 229; Meyer v. Insurance Company, 184 Mo. 481; Sections 7568, 7579, R. S. 19091.

— Hon. A. D. Burnes, Judge. (1) Instruction number 2 for the plaintiff is erroneous- because it leaves the mixed question of law and fact to the jury to decide whether the terms mentioned in the letter of October 22, 1912, continued in force until November 29, 1913, and does not state under what conditions the so-called contract would continue or cease to continue. This is improper. Boot & Shoe Co. v. Bain, 46 Mo. App. 581; Estes v. Fry, 22 Mo.

— Hon. B. G. Thurman, Judge. (1) The defendant filed a motion to quash the second and third counts of the indictment, on the ground that the offenses alleged to have been committed were committed, if at all, after the indictment was returned into court. Time is the essence of the offense in cases of this character. State v. Wilson, 39 Mo. App. 184; State v. Batzer, 150 S. W. 1081; State v. Austin, 113 Mo. 538; State v. Manning, 87 Mo. App. 78.

<p>1. CONTRACTS: Quantum Meruit: Price. An action for the price of boring a well may be brought on quantum meruit although there was a specific contract, if that contract has been fully performed and nothing remains but payment of the price. The recovery will be limited within the contract price.</p> <p>2. -: Laborer: Work: Value or' Profit. If a laborer performs work in a workmanlike manner for his employer he does not undertake that such work will be valuable or profitable. The risk is not his and he may recover the value of such labor.</p>

— Hon. J. G. Slate, Judge. The court should instruct the jury to find a verdict for the defendant when plaintiff fails to offer any proof whatever to sustain the allegations in the petition. R. S. Mo. 1909, sec. 5440; Madden v. Railroad, 149 Mo. App. 143; ITensly v. Stix; 113 Mo. App. 162; Smith, v. Pullman Co., 138 Mo. App. 238; Canady v. U. Railways Co., 134 Mo. App. 282; Compton v. Railroad, 147 Mo. App. 414; Adams v. Railroad, 149 Mo.

— lion. A. D. Burnes, Judge. (1) The plaintiff was not a party to the trust deed and note in suit; the evidence fails to show that they were made for her use and benefit; she therefore had no right to maintain a suit thereon in her name. Howsmon v. Trenton Water Co., 119 Mo. 304; Ellis v. Harrison, 104 Mo. 270; 3 Page, Contracts, sec. 1312; City of St. Louis v. Von Phul, 133 Mo. 561, 565.

— How. B. .G. Thurman, Judge. (1) It is the duty of the operator of a motor vehicle to slow down and if it be necessary for the safety of the public, to bring his car to a full stop' when approaching’ or passing a car of a street railway, which has been stopped to allow passengers to alight or embark, but he is under no such duty when meeting or passing a moving street car, or one stopped for other purposes than allowing passengers to alight or embark.

— Hon. A. D. Burnes, Judge. (1) Where the evidence is conflicting as to any material fact, an instruction which assumes the existence of such fact is erroneous. Bertram v. Railroad, 154 Mo. 654; First Nat.' Bank V. Hatch, 98 Mo. 376; State v. Moore, 101 Mo. 316; Stone v. Hunt, 94 Mo. 480.

— Hon. G. H. Mayer, Judge. (1) Whether a partnership existed in the ownership of the wool was a question for the jury to determine. Franklin v. Hiller, 15 Ann. Cas. 265; Strauss v. Hirsch, 63 Mo. App. 95; Morgan v. Tarrell, 18 Am. St. 282 and note; 30 Cyc. 413. (2) The court erred in directing a verdict for the defendant. Hall v. Railroad, 50 Mo. App. 179; Strauss v. Hirsch, 63 Mo. App. 95; Wright v. Trust Co., 144 Mo. App. 640; JohnstonBrinkman v. Bank, 116 Mo. 558.

— Ho#. G. II. Mayer,. Judge. (1) Plaintiff’s instruction number 4 should have been refused, because including an instruction as to the law regarding future injuries when the evidence does not show that there is any reasonable certainty of any such injuries. Wilkerson v. Met. St. Ry. Co., 126 Mo. App. 617; Ballard v. Kansas City, 110 Mo. App. 396; Klass v. Street Railway, 1691 Mo. App. 617; Allen v. Lumber Co., 171 Mo. App. 492.

— Hon. Geo. W. Wanamaker, Judge. (1) Postnuptial settlements are upheld by the courts. 21 Cyc. 1254. (2) Deeds of separation entered into by husband and wife are likewise upheld. 21 Cyc. 1592. (3) A wife cannot accept one provision of such a deed and repudiate another. State v. Giroux, 47 Pac. 718. (4) The contract of separation proved in evidence in this case is sufficient to bind both parties thereto.

— Eon. B. G. Thurman, Judge. An appraiser, or the party he is representing, cannot through him blow hot and cold. He cannot remain in and conduct an appraisal, though some of the things at the time may not suit him, for the purpose of accepting the result, if satisfactory, and kicking over the award if .it is not as large as he thought it would be or desired. Robertson v. Lion Ins. Co., 73 Fed. 928; Stemmer v. Ins.

ADDeal from Buchanan Circuit Court. — Hon. C. H. Mayer, Judge. (1) The master may conduct his business in his own way and the servant must assume all risks incident to the nature of his employment. Disano v. Steam Brick Co.,' 40 Atl. 7-, Mathis v. Stock Yards Co., 185 Mo. 434; Sinberg’ v.’ The Falk Co., 98 Mo. App. 546-; Bradley v. Railroad, 138 Mo. 302; Roberts v. Tel. Co., 166 Mo. 376; Gleeson v. Excelsior Mfg. Co., 94 Mo. 201; Musick v. Dold Pkg. Co., 58 Mo. App. 322.

— So». Frank P. DiveTbiss, Judge. (1) Notwithstanding that the automobile may have been running at a rate of speed prohibited by law, or that no horn was sounded, or other alarm given, still, plaintiff is not entitled to recover, since the evidence shows that he saw the car, knew it was coming, and then stepped in front of the car at a time when collision was unavoidable. Green v. Eailroad, 192 Mo. 131; Mockowik v. Eailroad, 196 Mo. 550; Schaub v. Eailroad, 133 Mo.

<p>Appeal from Johnson Circuit Court. — Hon. A. A. Whit sett, Judge.</p>

— Hon. Nat. M. Shelton, Judge. (1) Instructions must not submit a false or erroneous issue, or basis of recovery nor assume controverted facts. And they should submit the theory of both sides. Wears v. Wiesburg, 152 Mo. App. 276;-Joyce v. Transit Co., Ill Mo. App. 565; Dolman v. Pitt, 109 Mo. App. 133. (2) Defendant’s motion for new trial should have been sustained also on account of the newly discovered evidence.

— Hon. C. H. Mayer, Judge. (1) Defendant’s demurrers should have been given, the defect in the sidewalk, as shown by plaintiff’s evidence, not being sufficient to render the city liable. Chicago v. Nooman, 116 Ill.

<p>1. COVENANTS NOT TO SUE: Release: Joint Tort. A covenant not to sue one or more of several wrongdoers, is not a release and does not discharge the other.</p> <p>2. RELEASE: Satisfaction. A release of one joint tort-feasor will discharge the others, hut a covenant not to' sue one of several, where full satisfaction for the wrong is not received, is not a release.</p> <p>3. -: Single Tort-feasor: Discharge. A covenant not to sue a single wrongdoer is, in effect, a release or discharge, to avoid circuity of action'.</p> <p>4. -: Written Acknowledgment: Construction: Reservation. Where a written paper acknowledges receipt of a sum of money from two of a number of tort-feasors, not in satisfaction of the wrong, and reserves the right to proceed against the others it is a covenant not to sue and is not a release.</p> <p>5. -: Construction: Intention. In construing a writing to. ascertain whether it is a release or a covenant not to sue, the intention of the party, made manifest in the writing, should overcome all technical rules of construction.</p> <p>6. MALICIOUS PROSECUTION: Bankruptcy. Malicious prosecution may be maintained for the institution of a proceeding in bankruptcy, but the evidence must show both malice and want of probable cause.</p> <p>7. -: Malice: Probable Cause. In an action for malicious prosecution though malice be shown, if there was probable cause no recovery can be had.</p> <p>8. -: Advice of Counsel. In an action for malicious prosecution advice of counsel will negative malice.</p>

— Hon. G. A. Mayer, Judge. (1) The verdict was excessive and shows on its face that it was found on sympathy from the statement of plaintiff, Laura Eversole, that she was a widow and that she left the impression with the jury that she was supporting nine children. “The damages, if any allowed at all, should only he a nominal sum where the amount of damages is not shown, nominal damages will be awarded.” 46 Mo. App. 407; 10 Mo. App. 593.

<p>1. ASSAULT: Damages: Actual and Exemplary. When one is .present, aiding and abetting another who commits an assault, he is as much a principal as he who strikes the blow or fireb the shot.</p> <p>2. INSTRUCTIONS: Pleading: Affirmative Defense. When an instruction assumes to cover the whole case and ignores the defense of justification, it is not erroneous, where such an affirmative defense is not specially pleaded in the answer. Such defense cannot be raised under a general denial, and will be deemed waived, if not specially pleaded.</p> <p>3. -: Damages. An instruction on the measure of damages which employed the term “liable to suffer” in referring to future consequences of the injury does not constitute reversible error, nor does the use of the word “may.”</p> <p>4. MISCONDUCT OF COUNSEL: Prejudicial Remarks: Exception. Where counsel makes prejudicial and improper remarks in his argument to the jury, they will not be considered unless an exception is saved.</p>

— Hon. J. G. Slate, Judge. (1) Before plaintiffs can recover such special consequential damages as are claimed in this case, they must plead and prove that defendant, at the time of accepting the consignment in question, was notified of the special damages that might be anticipated at a result of delay. Dunne & Grace v. Railroad, 166 Mo. App. 375; Cowherd v. Railroad, 151 Mo. App. 7; Gray v. Railroad, 54 Mo. App. 671; Steffen v. Railroad, 156 Mo. 335.

— Hon. Fred Lamb, Judge. (1) Crossing signals are intended solely for the protection of persons and property at the crossing and a failure to give a crossing- signal will not render the company liable for animals injured if not at the crossing. 33 Cyc. 1214, text and note 32 with cases cited; Wasson v. McCook, 80 Mo.

— Ron. C. R. Mayer, Judge. ' (1) When tlie defendant, Yarley-Wolter Company, sold the draft with hill of lading attached to the interpleader and joint defendant, Market State Bank, on the — day of — and the hank deposited the money for the draft to the credit of the Varley-Wolter Company, title to the car of potatoes passed to the bank as collateral security to the draft and the defendant Varley-Wolter Company, had no attachable interest in the ear of potatoes.

<p>WRIT OF ERROR: Notice: Excuse: Good Cause. Where a losing party in the trial court sues out a writ of error and mails a written notice of it to the attorney of the successful party in ample time to reach said attorney before the last day for notice, but it is not received by the latter; this is “good cause,” in the sense of the statute, for not having given the notice as required by See. 2071, R. S. 1909.</p>

<p>1. COURTS: Appellate: Jurisdiction in Appeals: Federal Questions. The Supreme Court has exclusive jurisdiction of ap' peals in all cases where a Federal question is involved. (Sec. 12, Art. 6, Constitution.)</p> <p>2. -: Federal Questions: Jurisdiction: Usury. An action to recover double the amount of interest paid because of usurious charges (R. S. United States, secs. 5197, 5198), involves a Federal question and therefore this court has no jurisdiction.</p> <p>3. -: Federal Questions: First Raised in Appellate Court. It matters not whether the Federal question involved in a cause was raised in the trial court. The appellate court must transfer the case to the Supreme Court when such question appears on the face of the record.</p>

Elrror to Barton Circuit Court. — Hon. Arch. A. Johnson, Special Judge. (1) Under the statutes of this State and authorities construing the same, the defendant should have been granted a continuance. Sec. 6204, R.. S. 1909. (2) The State having elected by its information and the evidence to stand upon the sale or violation of the law upon a specific day should not have been permitted to have introduced any evidence or any act of the defendant after that day.

— Hon, Guy D. Kirby, Judge. If the court found from the evidence that usurious interest had been exacted and collected, then under the law, it had a right to render a judgment for the amount of the usurious interest paid in excess of the legal rate, and for cost of suit including a reasonable attorney’s fee. R. S. 1909, sec. 7182.

— Eon. W. N. Evans, Judge. (1) When all the instructions are read in connection with each other they fully and properly declare the law applicable to the case and if no error appears the judgment should he affirmed.

— So». Wilson Taylor, Special Judge. (1) While a suit for divorce is a statutory action, on appeal the appellate court will review the evidence for itself, and determine whether or not it justifies the judgment of the lower court and will award such judgment as the lower court should have awarded. All-free v. Allfree, 75 Mo. App. 345; Grove v. Grove, 79 Mo. App. 142; Green v. Green, 22 Mo. App. 494; Barth v. Barth, 168 Mo. App. 423; Donelly v. Donelly, 150 Mo. App. 660.

— Hon. L. B. Woodside, Judge. (1) ' The clause, attempted to be added by amendment to the plaintiff’s petition is inconsistent with the cause of action to be set up in his original petition, and the objection of the defendant, in open court, to said amendment should have been sustained. The Enterprise Soap Works v. Sayer, 51 Mo. App. 310.

<p>Appeal from Crawford County Circuit Court. — Ho». L. B. Woodside, Judge.</p>

— Eon. Guy ID. Kirby, Judge. (1) False or fraudulent statement made to tlie surety at tlie time of the execution of the contract, or during the negotiations leading up to it, is sufficient ground for annulling it. Benton County Savings Bank v. Boddieker, 105 Iowa, -; Same case, 75 N. W. 632, 548;. Same case, 67, An. St. 310; Same case, 45, 2 R. A. 321; Trammell v. Swan, 25 Texas, 473; Cooper v. Joce, 1 De F. and J. 240; Same case, 62 Eng. Chan. 184; Same case, 45 Eng.

— Hon. W. N. Evans, Judge. (1) In an action for damages for fraud, inducing one to convey his land in exchange for other lands based upon fraudulent representations, as to the quality, location, and value of the other lands, the value of the land conveyed by the plaintiff for the other land is not in issue; the parties Saving examined such land. Boyce v. Goodrich, 154 Mo. App. 198.

<p>Appeal from McDonald County Circuit Court. — Hon. Carr McNatt, Judge.</p>

— How. C. H. Skinker, Judg:e. (1) The contract declared on is within the Statute of Frauds. R. S. 1909, sec. 2784. (2) Parol evidence cannot be received to prove such .a contract, as all its terms must be proven by written evidence. Moore v. Mountcastle, 61 Mo. 425 ; Cash v. Clark, 61 Mo. App. 640; Leesley v. Fruit Co., 162 Mo. App. 202; Smith v. Schell, 82 Mo. 218; Reigart v. Coke Co., 217 Mo. 154; Darnell v. Lafferty, 113 Mo. App. 288.

— Hon. D. E. Blair, Judge. (1) A party seeking to rescind a contract for fraud must act promptly on discovery of tbe fraud; and if after such discovery he takes any action relating to the enforcement of said contract, his right to rescind is thereby denied. Long v. Vending Machine Co., 158 Mo. App. 662; Stephenson v. Allison, 26 So. 2901 Whit-comb v. Hardy, 76 N. W. 29; Bedier v. Reaume, 55 N. W. 366; Thomas v. McCnne, 53 Pac. 161.

— Hem. Henry 8. Show, Special Judge. (1) In order to justify the trial court in granting alimony pendente lite, there must he at least a primafacie showing on the part of the wife, where she is the plaintiff, that she is entitled to the relief prayed for in her petition for divorce, and that her suit was brought in good faith and not merely for the purpose of obtaining money from her husband.

— Hon. B. G. Thurmcm, Special Judge. (1) The question of holding* incompatible offices cannot arise in this case, for if holding the office of city clerk is incompatible with that of councilman, by accepting* and entering upon the duties of city clerk the relator thereby forfeits the office of councilman and it at once becomes vacant by operation of law, and relator could not hold both even if he wanted to.

— Hon. Quy D. Kirby, Judge. (1) Plaintiff did not rely on any statements of Smith, but on the papers. He knew from Smith that l1 wns without knowledge other than the sources imparted. Smith imparted to Cook all the facts within his knowledge. There was no suppression of facts. Bradford v. Wright, 145 Mo. App. 630.

— How. L. B. Woodside, Judge. (1) While it is a rule that appellant cannot ordinarily complain because respondent did not obtain so large a judgment as he might have done; yet “an exception to this rule is found in cases where the issue is contract or no contract and the contract asserted to be existent unalterably fixes the measure of liability. ’ ’ And in such cases a verdict in favor of plaintiff for less than the stipulated amount cannot stand.

— How. Guy D. Kirby, Judge. (1) The Statute, R. S. 1909, sec. 2022, makes perjury a distinct ground of new trial. State ex rel. v. Edwards, 11 Mo. App. 154. (2) Perjury is ground for a new trial independently of the question of surprise. Ridge v. Johnson, 129 Mo. App. 541; Byrd v. Vanderburgh, 168 Mo. App. 112; Berryhill v. Tribe of Ben Hur, 151 Mo. App. 415.

it Court. — Hon. Guy D. Kirby, Judge. The position taken by the trial judge, on which he bases his judgment, is wholly untenable. When appellant offered to take out the extra weight, as soon as he could ascertain respondent’s reason for the refusal, and to reduce the draft, he complied strictly with every-condition of his contract. The'general offer to reduce the draft covered the little detail or item of the freight on the overage.

<p>1. BILLS AND NOTES: Given to Secure Another’s Debt: Defenses. Action on a note given to secure the payment of another’s debt. It was alleged in defense that “the note was given to plaintiff without any consideration and if there was any balance due plaintiff by W. the same had been collected by plaintiff in the sale of a certain tract of land given by W. to plaintiff to secure said indebtedness.” Held, that plaintiff’s purchase at tax sale of such land mortgaged to secure the debt did not render plaintiff chargeable with receiving payment of • the debt, the evidence being indefinite as to the reasonable value of the land at the time of the tax sale and how much it sold for.</p> <p>2. -: Guaranty Note: Payment of Debt Prior to Giving. Where no claim of fraud or duress in. obtaining a guaranty note was made, it does not avail as a defense that the debt .guaranteed had been paid prior to the giving of the note.</p> <p>3. -: Guaranty Note: .Consideration: What Suffices. A guaranty note given as security for the payment of another’s debt, has sufficient consideration if some consideration passed to the one for whose benefit defendant signed the instrument. An extension of time for making payment is sufficient. It is not necessary that a consideration pass to the defendant maker.</p> <p>4. -: -: Prior Adjudication Against Principal: Binding on Guarantor. Action on a guaranty note to secure the payment of another’s debt. In a prior suit for accounting between the original debtor and plaintiff herein, the entire indebtedness, together with_the contract of guaranty here involved, was inquired into. The decree therein finding a larger amount due precludes a defense in the present case that the debt then unpaid did not equal the amount of the guaranty.</p>

One. — No». Joseph D. Perkins, Judge. (1) After the plaintiff in the divorce suit had requested the court to take cognizance and jurisdiction of the household effects, and try and determine that this property belonged to the defendant and should be set aside as part of her alimony in gross, plaintiff should not be heard to say in an independent action, while the other suit is pending, that this identical pr operty was her property and not the property of the defendant.

— Hon. Carr McNatt, Judge. No ordinance or resolution was passed by the council but tbe same was defeated. No estimate of the cost was made or filed by tbe city engineer; no specifications were ever attempted to be made or filed and no intelligent bid could possibly be made and no competition had in bidding. It is well settled that where contracts shall be let to the lowest bidder there must be an opportunity for active competition. The taxbills are void.

— Hon. W. N. Evans, Judge. (1) The court erred in permitting plaintiff to prove that she had paid certain claims due and owing by William Blount at the time of his death over the objection of defendant. If such payments were made they were voluntary and no charge against this defendant. Payment made with full knowledge of all the facts constitutes voluntary payment and cannot be recovered. Brewing Co. v. St. Louis, 187 Mo. 367; Ehodes v. Dickerson, 9.5 Mo.

— lion. E. E. Porterfield, Judge. (1) The duty was placed on plaintiff by the character of the work being done to make his own inspection. Hulse v. Tel. Co., 164 Mo. App. 131; Fleeman v. Bemis Bag Co., 195 Mo. App. 598; Corby v. Tel. Co., 231 Mo. 417; Bradley v. Tea Co., 213 Mo. 331. (2) Plaintiff knew of any danger due to condition of contents of car and defendant did not, and where danger is known to servant master is not negligent in failing to warn him.

<p>Appeal from Cooper Circuit Court. — How. J. G. Slate, Judge.</p>

— Eon: Wm. C. Ellison, Judge. A shipper has no right to designate the time when or the places where the trains should be stopped and he be allowed to feed and water. This of necessity must be left to the decision of defendant. Lowenstein and Thomas v. Railroad, 63 Mo. App. 76, citing McAllister v. Railroad, 74 Mr. 351.

<p>NEGLIGENCE: Personal Injuries: Duty of Plaintiff to Make Out a Case. Plaintiff and a fellow servant were carrying a heavy sill, plaintiff holding one end and the fellow servant the other. They were holding it about three feet from the ground. Suddenly the fellow servant dropped his end and this jerked the other end out of plaintiff’s hand causing it to fall across plaintiff’s foot. There was no evidence Showing, or tending to show, negligence on the part of the fellow servant. So far as the evidence shows it may have been through no fault of his. There was no room for the doctrine of res ipsa loquitur. Held, that plaintiff was properly nonsuited.</p>

— Hon. A. H. Waller, Judge. (1) The statutes of Missouri, in force at the time this policy was issued, entered into and became a part of the contract as much so as if written therein. Cravens v. N. Y. Life Ins. Co., 148 Mo. 588; Cravens v. N. Y. Life Ins. Co., 178 U. S. 389; Burridge v. N. Y. Life Ins. Co., 211 Mo. 158; Paschedag v. Mut. Life Ins. Co., 155 Mo. App. 185. (2) And the Legislature cannot, destroy the contract rights of the parties by sebsequent repeal.

<p>Appeal from Buchanan Circuit Court. — Hon. Wm. D. Busk, Judge.</p>

— Eon. Chas. E. Mayer, Judge. (1) There was a failure of proof as to defendant’s knowledge of the broken step for the reason that plaintiff’s own statement shows that the step was not broken for a sufficient time for defendant to have discovered and repaired the same. He is bound by his own statements. Holmes v. Leadbetter, 95 Mo. App. 425; Feary v. Metropolitan Street Railway Co., 162 Mo. 105 ; Campbell v. Stanberry, 105 Mo. App. 66; Shea v. Seelig, 89 Mo.

— Hon. A. H. Waller, Judge. (1) Plaintiff was not a section hand, or track workman, of the defendant, hut an employee of an independent contractor who was invited to live in the bunk cars and use the track as a footpath at the place of the injury. Piad a right under the contract between the defendants receivers and Gframmitt & J ohnson to live in the bunk cars and use the track as a footpath. And the defendants owed him the duty of. exercising ordinary care towards him.

<p>Appeal from Sullivan Circuit Court. — Hon. Frecl Lamb, Judge.</p>

<p>Appeal from Vernon Circuit Court. — Hon. B. G. Thurman, Judge.</p>

— Hon. A. D. Burnes, Judge. (1) Every instrument in writing, whereby any real estate “may be affected” when proved or acknowledged, can be recorded. Sec. 2809, R. S. 1909. (2) A written lease affects real estate in the sense of this statute. Faxon v. Ridge, 87 Mo. App. 299.

— Ho». J. 'G. Slate, Judge. (1) The shipping contract which requires one day’s notice for all claims for damage, purports on its face to he supported hy a reduced rate. The courts impose upon plaintiff the burden of' showing no consideration for such provision and presume in favor of a consideration. And the burden of proof is on plaintiff to show that notice was given. Hamilton v. Railroad, 177 Mo. App. 151.

— No». Jos. A. Guthrie, Judge. (1) The court erred in applying cancellation clause “K” in rendering judgment herein. The companies going out of business were entitled to cancel the policy without the application of “customary short rates,” and instruction number 1 should have been given. LaForce v. Insurance Co., 43 Mo. App. 530; Mathews v. Woodmen, 236 Mo. 342-434. (2) The court erred in allowing interest. There was no sufficient proof of demand. McDonald v. Loewen, 145' Mo.

— Horn. Samuel Davis, Judge. (1) The plaintiff’s petition does not state facts sufficient to constitute a canse of action, (a) A promise to perform some act in the future, not being a representation of a present existing fact, is not such a representation as to support an action of deceit. Bullock v. Wooldridge, 42 Mo. App. 356. (2) Matters alleged as a mere matter of opinion do not constitute a misrepresentation such as to support action for deceit.