Volume 185 — Missouri Appeal Reports

— Hon. Jos. A. Guthrie, Judge. (1) Plaintiff sold the potatoes in question to defendant. It was a completed sale — an executed contract .and not an executory contract or promise or agreement to sell. The title vested in defendant and defendant became the owner of said potatoes, and liable to plaintiff for the contract price thereof. Longsdorf v. Meyers, 157 S. W. 85 ; Dehner v. Miller, 166 Mo. App. 504; Eister v. Harnden, 153 Mo.

<p>1. NEGLIGENCE: Manufacturers: Injury to Eye. The plaintiff was employed to shear pipes that had been flattened by a machine. The place at which he was working was near the latter machine, and as he reached down to secure a pipe a substance squirted from a pipe, which was being flattened, and struck him in the eye. 11eld, that the demurrer to the evidence was properly overruled.</p> <p>2. -: -: -. A master is not negligent towards his servant when he conducts his business in the manner in which other prudent persons customarily conduct the same business. The master is liable for the consequences of negligence, not of danger, and his duty towards his servant does not embrace the elimination of risks or dangers which inhere in the work when conducted in an ordinary and reasonably careful manner. Such dangers and risks are assumed by the servant.</p> <p>3. DEFINITIONS: Natural Dangers. The term natural dangers ' may be defined as meaning those which reasonable care and prudence, having regard not only to the safety of the servant, but also to the necessities of the business, cannot be expected to suppress.</p> <p>4. DEFINITIONS: Negligence. ■ The term negligence when used ,to refer to a master’s duty — has been well defined as “'the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”</p>

<p>Appeal from Putnam Circuit Court. — Hon. George W. Wanamaker, Judge.</p>

<p>Appeal from Clay Circuit Court. — lion. Frank P. Divelbiss, Judge.'</p>

— Hon. B. G. Thurman, Judge. (1) The burden was on the plaintiff to introduce evidence showing or tending to show the giving of the notices and also that he had instituted his suit within the ninety-one days. He failed to sustain this burden. Hamilton v. Railroad, 164 S. W. 248; Johnson Grain Co. v. Railroad, 164 S. W. 182; Joseph v. Railroad, 175 Mo. App. 18; McE-lvain v. .Railroad, 158 S. W. 464; American Silver Mfg. Co. v. Railroad, 174 Mo.

<p>Appeal from Buchanan Circuit Court.- — Hon. Chas. H. Mayer, Judge.</p> <p>(1) The trial court erred in sustaining the demurrer. Even if the parties had agreed on a settle-meat, it was not carried out and plaintiffs had a right to sue on the original contract. It is admitted that there was no accord and satisfaction, else why this deposit? It is the unbroken rule of law in this State, that the accord and satisfaction must be complete in order to be binding. Peterson v. Wheeler, 45 Mo. 369; Barton v.'Hunter, 59 Mo. App. 610. (2) “An accord in order to discharge a contract or cause of action must be executed and this execution of the accord is the satisfaction. Satisfaction consists in the actual performance by one party of the agreement of accord, and the ■ acceptance by the other party of such performance in full satisfaction of the original cause of action or .contract. ” Carter v. Railroad, 136 Mo. App. 719.</p> <p>• (1) A settlement in full when respondent gave appellants the orders in full and appellants accepted such and drew the money thereon they accepted the conditions, being in full settlement of the amount due them. Andrews v. Stubbs, 100 Mo. App. 599. (2) Appellant Elliott states that at the time the order was given him he stated that it was not in full payment and threw the order down and afterward picked it up, took it to Shull & Chipps and received payment, less $4.62 which was by respondent paid to the constable just as soon as this suit was instituted. Such being the facts, appellants must be held to have accepted it in full, for if ho accepted the money conditionally tendered he accepted the conditions also. Cornelius v. Rosen, 111 Mo. App. 619.</p>

— Eon. Chas. E. Mayer, Judge. (1) When the defendant sold the draft with bill of lading attached, to the interpleader, bank, on December 4,1913, and the bank deposited the money for it to defendant’s credit and defendant checked against it, the title to the car of potatoes passed to the bank, and the defendant had no attachable interest in the .property, and for that reason the judgment should have been in favor of the interpleader. Hendley v. Globe Ref. Co., 106 Mo.

— Row. J, G. Slate, Judge. (1) “In all civil actions or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law.” Sec. 2263, R. S. 1909. (2) There being no evidence that appellant summoned any witness vexatiously or for the purpose of making unnecessary costs, he being the prevailing party is entitled to recover all costs. Lamm v. Railley, 127 Mo. App. 726.

<p>Appeal from Nodaway Circuit Court. — No». Wm. C. Ellison, Judge.</p>

<p>Appeal from Saline Circuit Court. — Ron. Samuel L. 'Davis, Judge.</p>

— lion. B. G. Thurman, Judge. (1) “The husband shall be debarred from and incapable of selling, mortgaging or alienating the homestead in any manner whatever, and every such sale, mortgage, or alienation is hereby declared null and void.

<p>Appeal from Lafayette Circuit Court. — Hon. Samuel L. Davis, Judge.</p>

— Hon. Wm. G. Ellison, Judge. (1) Parties necessary to settlement of controversy may be made defendants. Sec. 1732, R. S. 1909. (2) Attornment to stranger is void, except in certain cases. Sec. 7885, R. S. 1909. (3) The rule is general that an agent who discloses the name of his principal to the person with whom he is dealing, incurs no personal responsibility to such persons on account of the transaction. Martin v. Allen, 125 Mo.

— Hon. Arch A. Johnson, Special Judge. (1) This is not a case where the defendant is charged with having sold intoxicating liquors in violation of the law, hence the evidence relative to the government license was not competent for any purpose in this case.

<p>Appeal from Newton County Circuit Court.— Hon. Carr MfiNatt, Judge.</p> <p>The demurrer to the evidence should have been sustained. Sanguinette v. Railroad, 196 Mo. 466; Kelsay v. Railroad, 129 Mo. 362; Haydon v. Railroad, 124 Mo. 566; Payne v. Railroad, 136 Mo. 562; Osborne v. Railroad, 179 Mo. App. 245; Keele v. Railroad, 258 Mo. 62; Walker v. Railroad, 193 Mo. 453, 479 ; Moeowik v. Railroad, 196- Mo. 550, 570;-Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Stotler v.' Railroad, 204 Mo. 619; Huggart v. Railroad, 134 Mo. 673; Laun v. Railroad, 216 Mo. 536; Stepp v. Railroad, 85 Mo. 229; .Kelly v. Railroad, 88 Mo. 534; Burge v. Railroad, 244 Mo. 76; Schaub v. Railroad, 133 Mo. App. 444; Waggoner v. Railroad, 152 Mo. App. 173, 179; Newton v. Railroad, 152 Mo. App. 167; Madinger v. Railroad, 152 Mo. App. 453; Perris v. Railroad, 167 Mr. App. 392.</p> <p>. There is no issuable assignment of errors whereon ■ to base joinder of issue in error, and, no response should be required in this case to appellant’s brief. If there were due assignment of error, and even if there were defects in plaintiff’s case on his evidence alone, yet when defendant also offered evidence, as the record here shows was done, the case could not be sent off now on the first demurrer; but on the second demurrer, at- the close of the whole case, the plaintiff was and yet is entitled to-the benefits of all contributions o'f fact to his case by defendant’s evidence. Eswain v. Railroad, 96 Mo. 290’-, McPherson v. Railroad, 97 Mo. 253. (2) The jury was entitled to draw the inference that if the statutory signals had been given, it might have attracted the attention of the animal and caused him to get over the tracks without being struck. A timely crossing signal would have saved the respondent is the meaning of the verdict of the jury in this case; and it should stand. Tate v. Railroad, 153 Mo. App. 533'.'</p>

— Hon. B. G. Thurman, Judge. (1) The right to rescind a contract on the ground of fraud must be exercised on the discovery of the fraud. Taylor v. Short, 107 Mo. 384; Althoff v.' Transit Co., 204 Mo. 171; Wood v. Telephone Co., 223 Mo. 565; Bushnell v. Loomis, 234 Mo. 382; Long v. Vending Machine Co., 158 Mo. App. 665; Meinershagen v. Taylor, 169 Mo. App. 23; Light & Power Co. v. Machine Co., 170 Mo.

— Hon. L. B. Woodside, Judge. The record shows that the respondents appeared to the suit and a petition for review cannot be sustained in any cáse where the defendant appeared, either in person or by attorney, no matter what may be the merits of his defense. Campbell v. Carton, 29 Mo. 343; Tennison v. Tennison, 49 Mo. 110; State ex rel. Pemiscot Co. v. Scott, 104 Mo. 26; Curtiss v. Bell, 131 Mo. App. 245; Warren v. Railroad, 122 Mo. App. 254.

— Hon. Guy H. Kirby, Judge. (1) The trial court erred in overruling defendant’s demurrer to the evidence at the close of all the evidence.

David E. Blair, Judge. (1) The right of homestead is purely a creature of statute. Bank v. Eagle Grove v. Daugherty et al., 167 Mo. 1. (2) When respondent asserted her right of homestead the burden was upon her to show that her husband had not exercised the right of exemption, as it is only in cases where the husband has not made a claim that the wife can do so. Sec. 8304, R. S. 1909. White v. Smith, 104 Mo. App. 199.

Greene County Circuit Court. — No». Guy D. Kirby, Judge. The giving of the first instruction at the request of the plaintiff was error-for the reason that it assumed that plaintiff was not “in the clear” nor “out of the pathway of the steel tower down the incline” where he was at work when the order was given to let the tower go. Lukamiski v. Foundries, 162 Mo. App. 631; Glaser v. Rothschild, 221 Mo. 180; Bair v. Heibel, 103 Mo.

— Ron. David E. Blair, Judge. (1) Books of account to be received in evidence must be a registry of business actually done; they are inadmissible to prove the terms or contents of a special agreement. 3 Jones on Evidence, 568; 17 Cyc. 380- Daum v. Neumeister, 2 Mo. App. 597; Batcheller v. Whittier, 107 Pac. 141.

<p>Appeal from Jasper County Circuit Court, Division Number Two. — Hon. David E. Blair, Judge.</p> <p>(1) Jurisdiction of an appeal from a judgment in ejectment is in the Supreme Court and not in the Court of Appeals. Bell v. Winkleman, 73 Mo. App. 451; Mitchell v. Blatt, 76 Mo. App. 408; Peters v. Worth, 164 Mo. 92; Baker v. Squire, 143 Mo. 92; State ex rel. v. Muench, 225 Mo. 226, following- and affirming the 143 Mo. and 164 Mo. supra. (2) The interest and title asserted by defendants in the case at bar is an interest in real estate, as it is the right to dig and remove and sell and dispose of the realty itself (zinc and lead ores) for a period of three years that defendants claim. “A license to work mines . . . confers not only- the right to enter and' occupy, but to commit waste and carry away part of the realty itself, and is, therefore, necessarily an interest in lands, tenements and hereditaments.” Desloge v. Pearce, 38 Mo. 599. (3) To entitle a miner to a statutory mining right under section 8409, R. S. 1909, three things must concur: 1. Permission and consent of the owner for the miner to enter and mine. 2. Actual physical entry; i. e., being let into the actual possession under and by virtue of this consent. 3. The opening up of a mine after such entry and consent in the good faith, reliance upon, and solely in consequence of such consent and entry. Lacking any one of these elements no statutory mining right accrues. The court, therefore, erred in refusing plaintiff’s peremptory instruction and erred in giving the instruction authorizing a verdict for the defendants. In re Nagle, 12 N. T. Supp. 707; Brunson v. State, 140 Ala. 201, 37 So. 197; Spalding v. Conzelman, 30 Mo. 177; Eirmnel v. Ilayes, 102 Mo. 194. (4) In order to invoke the mining statute, there must be an element of estoppel as against the owner in favor of the miner. Robinson v. Troupe Min. Co., 55 Mo. App. 662. (S') The defendants having entered under Ramage, their continuance in possession even with plaintiff’s consent, did not bring them under the mining statute. It is settled law that where one in possession of land verbally contracts with the owner for the land, or a new lease thereon, his merely continuing in. possession after the making’ of the alleged contract, is not an-act of performance within the meaning of the rule so as to justify a decree in his favor according to the contract. Spaulding v. Conzelman, 30 Mo. 177; Emmel v. Ilayes, 102 Mo. 194; Browne on Stat. of Frauds (3 Ed.), sec. 477; Roberts v. Templeton (Ore.), L. R. A. (N. S.) 7901, and note. (6) Even as against Ramage the defendants could not acquire a three-year statutory mining right upon the lot for the reason that the lease to Ramage was never recorded in the recorder’s office of Jasper county, and he therefore never came within the category of lessees named in sections 8408 and 8409.</p> <p>(1) The title to the land is not in dispute. Defendants merely claim a miner’s license under the statute. Under such license they do not even have title to the ore in place. Boone v. Stover, 66 Mo. 434; Foundry & Machine Co. v. Cole, 130 Mo. 6; Hough v. Light & Fuel Co., 127 Mo. App. 570; Arnold, v. Bennett, 92 Mo. App. 159. (2) Where in ejectment the title is not in question and simply the right of possession ■under an easement is in issue, the title is not affected so as to divest the Court of Appeals of jurisdiction over an appeal. Hough v. Light & Fuel Co., 127 Mo. App. 570, and cases cited therein. (3) Defendants merely held a miner’s license to enter and dig for ore. Sec. 8409, R. S. 1909; Lytle v. James, 98 Mo. App. 340; Foundry & Mach. Co. v. Cole, 130 Mo. 1; Rochester v. Gate City Mining Co., 86 Mo. App. 447; Arnold v. Bennett, 92 Mo. App. 156. (4) Ejectment is a possessory action; the plaintiff to maintain it must have the right of possession, hut be out of it. For it to lie against the defendant, the defendant must be in possession adversely to the plaintiff at the time suit is brought. And since one granting a miner’s license, retains the possession and the licensee thereunder does not acquire the possession, ejectment will not lie in favor of the owner of the land, who grants a miner’s license .to enter and dig for ores thereon, against his licensee. It follows from this that the judgment of the circuit court should be affirmed. Boone v. Stover, 66 Mo. 434; Foundry & Machine Co. v. Cole, 130 Mo. 6; Rochester v. Gate City Mining Co., 86 Mo. App. 447; Zinc Co. v. Amsden, Leonard & Co., 125 Mo. App. 515; Arbuthust v. Land & Mining Co., 115 Mo. App. 600.</p>

Anpeal from Barry County Circuit Court. — Hon. Carr McNatt, Judge. (1) There was a total failure of proof of any contract or agreement to pay anything and the court should have sustained defendant’s demurrer to the evidence. Kendrick v. Harris, 156 S. W. 490: (2) There was no showing of any personal liability.

— Ron. John T. Moore, Judge. (1) The articles contained in the package were not, under the law, baggage and appellant cannot he held liable for the delay in delivery thereof. Elliott on Railroads, sec. 1647; 3 Sutherland on Damages, p. 292; Spooner v. Railroad, 23 Mo. App. 403; Sherlock v. Railroad, 85 Mo. App. 48; State ex rel. v. Railroad, 71 Mo. App. 390; Hubbard v. Railroad, 112 Mo. App. 472; Doerner v. Ráilroad, 149 Mo. App. 175.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) A petition in a civil action must set forth facts sufficient to constitute a cause of action to sustain a verdict and judgment. Sec. 1794, R. S. 1909. The petition in' this case is brought upon a paragraph of the contract of agency, constituting plaintiff their sole agents to sell said house and lot' — the authority given is indefinite and uncertain as to the length of time the authority shall continue.

Louis City Circuit Court. — Hon, Charles Claflin Allen, Judge. • (1) In the case of notes secured by deed of trust containing the provision for the acceleration of the maturity of the debt at the option of the holder in case of default in the payment of an installment of interest when due, no particular form of option is necessary to be used for the purpose of declaring the maturity of the whole indebtedness.

Louis City Circuit Court. — Now. Eugene McQuillin, Judge. (1) The Continental Assurance Company having obtained no license to do an insurance business had no authority to transact any business of any kind or nature except'to open books for subscriptions to its capital stock. Ellerby v. Bank, 109 Mo. 445; R. S. Mo. 1909, sec. 6900. (2) All persons dealing with the Assurance Company were bound to take notice of its limited powers. Ellerby v. Bank, 109 Mo. 445'.

Louis City Circuit Court. — lion. Daniel D. Fisher, Judge. . (1) Tlie court erred in submitting the .casé to the jury on the theory that the motorman violated the provisions of the “Vigilant Watch Ordinance,” inasmuch as the evideneé discloses that the car could not have been stopped in. time to avert the injury, after the motorman could have observed decedent approaching the track.

Louis City Circuit Court. — Row. George R. Shields, Judge. (1) There has been no amendment of the petition, or other showing in the record, to suggest that plaintiff’s cause of action is revivable by the administratrix. 'Only actions “other than those resulting in death” are so revivable, and that showing must appear.

Louis City Circuit Court. — Now. George H. Shields, Judge. (1) Tlie contract pleaded and shown-by the evidence is a special partnership. Held: that this suit was only for a single item. It is true that this suit is to recover a share of the profits of only one house, yet the building of that house is made up of many items and the ascertainment of a profit, if any, requires an accounting just as much as in case of the' four houses.

<p>Appeal from Cape Girardeau Court of Common. Pleas. • — Hon. J. L. Fort, Acting Judge.</p>

Louis City Circuit Court. — lion. George G. Hitchcock, Judge. (1) The trial court erred in admitting against the objections and exceptions of defendant the evidence to show that prior to the alleged speaking by the defendant of the words charged in the petition the plaintiff bore a general good character and a good character for morality and chastity.

<p>Appeal from St. Louis Circuit Court. — Hon. J. Hugo Grimm, Judge.</p> <p>(1) ' The memorandum of sale sued on was insufficient because not signed by the defendant. R. S. 1909, sec. 2784; Catlett v. Catlett, 55 Mo. 330; Evans v. Ashley, 8 Mo. 177; Lee v. Vaughn Seed Store, 101 Ark. 68; Hargadine v. Van Horn, 72 Mo. 370; Boardman v. Spooner, 13 Allen (Mass.) 353; McMillen v. Terrell, 23 Ind. 163; Zachrisson v. Poppe, 3 Bosw. (N. T. Snp. Ct.) 171; Vielie v. Osgood, 8 Barb. 130; Hawkins v. Holmes, 1 P. Wins. .770; Bawdes v. Amhurst, Prec. in Ch. 403, Case 274; Selby v. Selby, 3 Mer. 4. (2) There was no evidence that the defendant intended to adopt the printed name at the head of the office blank as its signature and it was error to let it go to the jury without proof of its execution as a memorandum of sale. Boardman v. Spooner, 13 Allen (95 Mass.) 353; McMillen v. Terrell, 23 Ind. 163; Selby v. Selby, 3 Mer. 4. (3) The memorandum was -insufficient because, (a) It did not show what kind of eggs were sold, whether hen eggs, goose eggs, or those of some other fowl; (b) It did not show the quality of the eggs, whether “firsts,” “seconds,” “storage,” “extras,” “country” or’one of the many other varieties known to the trade; (c) It did not show how many eggs were sold, nor did it furnish the means to ascertain the number; (d) It did not show the price nor any fact from which it could be determined. R. S. 1909, sec. .2784; Reigert v. Coal Co., 217 Mo. 142; Kelly v, Thuey, 143 Mo. 422; Ringer v. Holtzclaw, 112 Mo. 519; Bacon v. Eceles, 43 Wise. 227. (4) It is incompetent to piece out or supply by parol evidence the omissions in the memorandum of sale sued on. Kelly v. Thuey, 143 Mo. 422; Boyd v. Paul, 125 Mo. 9; Ringér v. 'Holtzclaw, 112 Mo. 519; Standard Fireproofing Co. v. St. Louis Fireproofing Co., 177 Mo. 559; Biest v. Ver-Steeg Shoe Co., 97 Mo. App. 137. (5) The rule that when notice for delivery is expressed the law intends a reasonable time does not apply because the memorandum was not dated and parol evidence was not competent to fix the date from- which the time should be computed. (6) When the answer denies the agreement the Statute of Frauds is available without special plea. Schmidt v. Rozier, 121 Mo. App. 306; Hill-man v. Allen, 145 Mo. 638; Hurt v. Ford, 142 Mo. 283; Glasgow Co. v. Burgher, 122 Mo. App. 14; Schmidt v. Rozier, 121 Mo.'App. 306; Hackett v. Watts, 138 Mo. 502; Boyd v. Paul, 125 Mo. 9; McKee v. Rudd, 222 Mo. 344; Darnell v. Lafferty, 113 Mo. App. 282. (7) It was error to submit to the jury the interpretation of the written memorandum. Brecheisen v. Coffey, 15 Mo. App. 80; Falls Co. v. Broderick, 12 Mo. App. 378; State v. Lefaivre, 53 Mo. 470; Michael v. Ins. Co., 17 Mo. App. 23; Spalding v. Taylor, 1 Mo. App. 34. (8) The use made by the defendant of its printed stationery was competent to go to the jury on the question whether it intended to adopt the printed name as a signature. 1 Whar. Ev. (3 Ed.), secs. 21, 22; 1 Green! Tjv. (16 Ed.), sec. 38; Ins. Co. v. Weide, 11 Wall. 438; Coughlin v. Haenssler, 50 Mo. 126; True v. True, 33 Me. 367; Crabtree v. Vanhoozier, 53 Mo. App. 405.</p> <p>(1) A printed or stamped name if used and delivered with the intention of recognizing it as a signature, is a .sufficient signing to satisfy the Statute of Frauds. Schneider v. Norris, 2 M. & S. 286; Saunderson v. Jackson et al., 3 E-isp. 180; Durrell v. Evans et al., 1 II, & C. 172; Commonwealth v. Ray, 3 Gray (Mass.) 447; Browne on Statute of Frauds, sec. 356; 20 Cyc. 253'; Davis v. Shield, 26 Wend. (N. T.) 341. (2) The memorandum was sufficient because it recited all the essential elements of the contract: (a) The names of the parties; (b) the merchandise sold; (c) the price. Benjamin on Sales; Kelly v. Thuev, 143 Mo. 422. While it is not admissible to supply an omission in the memorandum of sale, it is competent to explain the meaning of any terms of the contract by parol. Salmon Falls Mfg. Co. v. Goddard, 14 How. (U. S.) 446; Springer et al. v. Kleinsorge, 83 Mo. 152; Browne on Statute of Frauds, sec. 380; Spicer v. Cooper, 1 Q. B. 424; Héidemann v. Wolfstein, 12 Mo. App. 366; Dana v. Puller, 12 N. T. 40 j 20 Cyc. 270.</p>

Louis City Circuit Court. — Eon. Wilson A. Taylor, Judge. (1) A bill of exceptions, like any other part of the record, may be amended nunc pro time upon evidence furnished by the “papers and files in the cause, or something of record or in the minute book or judge’s docket as a basis to amend by.” Cambie v. Daugherty, 71 Mo. 599; Young v. Young, 165 Mo. 624; Becher v. Deuser, 169 Mo. 165; Callier v. Railroad, 158 Mo. App. 249.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) The nonsuit in this case, though called involuntary, was voluntary. No exception was taken-to the ruling of the court in directing a verdict for defendants, and hence it was error to sustain a motion to set it aside. There is, therefore, nothing before this court for review, and the judgment for defendants should be affirmed. Lewis v. Mining Co., 199 Mo. 469; Allen v. Railroad, 141 Mo.

Louis City Circuit Court.— lion. Hugo Muench, Judge. (1) The court erred in refusing defendant’s instruction as to physical facts, such facts being as much evidence as is oral testimony, and where the uncontradicted physical facts are at variance with the oral testimony, they are-entitled to the greater consideration. Barrie v. Transit Co., 102 Mo. App. 91; State v. Dettmer, 124 Mo. 435; Weltmer v. Bishop, 171 Mo. 116.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) Notice of appeal from the judgment of a justice of the peace is jurisdictional and must comply with the statute.' Such notice must describe the judgment appealed from. It must describe the parties to the suit and if it does not name the same parties named in the judgment there is a fatal misdescription and the notice is no notice at all. Tiffin v. Millington, 3 Mo. 418; McGinness et al. y. Taylor, 22 Mo.

Louis City Circuit Court. — Hon. Wilson-A. Taylor, Judge. On tlie agreed statement of facts the administrator of the partner ship, estate of Stein & Wulff is not entitled to recover on his motion. No settlement was made with the plaintiff within the meaning of sections 964 and 965', Revised Statutes of Missouri, 1909, giving a lien to attorneys in certain cases, and no money was paid by defendant to the plaintiff.

Louis City Circuit Court. — Hob. Hugo Muench, Judge. (1) The court erred in refusing to give and read to the jury defendant’s instruction number 1 and erred in modifying same. Kennedy v. Railroad, 36 Mo. 351; Jones v. Berry, 37 Mo. App. 125'; Howell, Jewett & Co. v. Carryl & Co., 50- Mo. App. 441. (2) The court erred in giving and reading to the jury plaintiff’s instruction number 6. McKeon v. Railroad, 42 Mo. 79 ; Pruitt v. Cheltenham Quarry Co., 33 Mo.

St. Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge. (1) Tlie ordinance pleaded in the petition and offered in evidence over defendant’s objection, section 1558 of the Revised Code of the city of St. Louis, is void because it offends the charter, which provides that no ordinance shall contain more than one subject and that the subject shall be clearly expressed in the title.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) Koehring, having taken no part in the misappropriation of the trust funds by his cotrustee, is not liable. In order to charge one trustee for the default of a cotrustee, there must be proof that he participated in the wrong doing.

<p>1. STREET RAILWAYS: Collision at Crossing: Contributory Negligence: Reliance upon Ordinance. Reliance upon the presumption that the street car would not be run in excess of the maximum rate of speed permitted by ordinance cannot be availed of to defeat contributory negligence on the part of a person struck or in charge of a vehicle struck by such car, unless such person, if he he alive and is called as a witness; testifies that he knew of the ordinance fixing the speed limit and relied upon its being observed, when approaching the track.</p> <p>2. -: -:--. It is the duty of one approaching a street railway track to not only listen for the approach of a car, but to look at a point where the vision is open for a considerable distance — at least when considered with reference to the known likelihood of cars approaching at a high rate of speed.</p> <p>■3. -: -: -. The duty to look and listen for approaching cars will not be regarded as performed through merely attempting to look from a point where the view is obstructed, but the duty is a continuing one until the track is reached, and if there is a point between the crossing and the track which gives an opportunity to see, it is the duty of the traveler to look.</p> <p>4. -: -: -. In an action for damages to a truck by being struck by a street car .at a crossing, the evidence showed that the driver, when the truck was about forty or forty-five feet from the track, looked for approaching cars, but saw none, although he could see about one hundred and twenty-five feet up the track. After passing the obstruction which limited the scope of his vision, he drove slowly toward the track, for a distance of twenty-five or thirty feet, without again looking. When called as a witness, he did not testify that he knew of the ordinance fixing a maximum rate of speed for street cars and that he relied upon its observance when approaching the track. Seld, that the driver was guilty of contributory negligence as a matter of law, in failing to look for approaching cars after passing the obstruction, precluding a recovery by plaintiff.</p>

<p>REAL ESTATE BROKERS: Right to Commission: Procuring Cause. Ia aa action by a real estate broker for a commission for procuring an exchange of real estate, it was shown that, .during the time plaintiff had an exclusive agency to effect an exchange of defendant’s farm for other property, he introduced defendant to the owner of city property, for the purpose, of effecting an exchange, but that defendant refused to consider the proposal because tbe city property was valued too high by plaintiff’s customer, and all negotiations were terminated; that plaintiff’s agency expired in a short time thereafter, and, several months later, another broker effected an exchange between defendant and the owner of the city property, who had improved it to a large extent. Held, that plaintiff was not entitled to recover, since the first negotiations were terminated and the exchange finally made was not a continuation of them, and plaintiff, therefore, was not the procuring cause of the trade.</p>

<p>1. LIBEL AND SLANDER: Sufficiency of Evidence. In an action for slander, evidence held to support a finding that defendant uttered the slanderous words..</p> <p>2. -: Slanderous Words Per Se. The words “whoring bitch,” when applied to a female, impute fornication and unchastity, and are slanderous per se.</p> <p>3. -: -: Presumptive Malice: Burden of Proof. Where a woman is falsely called a “whoring bitch,” in the presence and hearing of others, malice is presumed, making it unnecessary to prove express malice and casting the burden upon the utterer to dispel or mitigate it.</p> <p>4. -: Elements of Offense: Publication. In order to constitute a slander, the slanderous words.must be spoken to, or in the presence of, some person other than the plaintiff and defendant.</p> <p>5. -: Instructions: Cure by Other Instructions. In an • action for slander, the error in an instruction given for plaintiff, covering the whole case, which authorized a verdict for him on a mere finding that defendant uttered the slanderous words of and concerning plaintiff, and that they were false, without requiring a finding that they were spoken in the presence of, and were heard and understood- by, others, was not' cured by an instruction given for defendant, which required a finding that the slanderous charge was understood by others, for, where plaintiff’s instruction purports to cover the whole case, its omissions cannot be supplied, nor its errors cured, by instructions given for defendant.</p> <p>6. INSTRUCTIONS: Omission: Cure by Other Instructions. Although all the instructions given are to be read and considered together, and one instruction may so amplify another as to cure an error arising from its omissions, yet where an instruction given for the plaintiff covers the whole case and authorizes a verdict for him on an erroneous theory of the law, or omits to require'a finding of- the facts essential to sustain the cause of action, the error cannot be cured, nor the omission supplied, by an instruction given for the defendant.</p>

<p>Appeal from St. Louis City Circuit Court. — If™ W. B. Homer, Judge.</p>

<p>1. CONVERSION: Acts Constituting. An action for the conversion of a chattel is maintainable notwithstanding defendant’s possession was rightful in the first place, if that possession, after demand made for the return of the chattel, becomes tortious.</p> <p>2. -: Trover: Common-Law Action. The common-law action of trover is an action whereby the owner of personal property may recover damages -against a person who has committed the wrong of conversion with respect to the property, and it is founded on the fictitious basis that defendant came rightfully into possession of the property and then wrongfully converted it to his own use.</p> <p>3. -: Variance between Pleading and Proof. In an action for conversion, held that there was neither a.failure of proof nor a variance between the pleading and the proof.</p> <p>4. -: Acts Constituting. Where a chattel was left by plaintiff with defendants for sale on plaintiff’s account, and defendants permitted it to get out of their possession without selling it, so that it was lost to plaintiff, they were liable as for a conversion.</p> <p>5. APPELLATE PRACTICE: Cnclusiveness of Verdict: Passion and Prejudice. The appellate court cannot set aside a verdict merely because it is against the weight of the evidence; but if the evidence shows that the verdict was the result, not of judgment, but of passion and prejudice, the appellate court has the right to set it aside.</p> <p>6. -: -: -. In an action for the conversion of a ring left by plaintiff with defendants for sale on plaintiff’s account, where plaintiff’s testimony was sufficient, if believed, to establish every fact essential to his recovery, ■ although it was flatly contradicted by that on behalf of defendants, and the verdict was for a less amount than the uncontradicted evidence showed the value of the ring to have been, held that a verdict for plaintiff will not be set aside by the appellate court as being the result of passion and prejudice.</p> <p>7. TRIAL PRACTICE: Conflicting Evidence: Question for Jury. Where the evidence is conflicting, the question is for the jury.</p> <p>8. EVIDENCE: Bringing Out Entire Conversation. Where dedefendants, on cross-examination of a witness for plaintiff, brought out part of a conversation, it was proper to permit plaintiff, on re-direct examination, to bring out the entire conversation, even though it consisted of self-serving declarations on the part of plaintiff.</p> <p>9. CONVERSION: Instructions. In an action for conversion, held that instructions given on behalf of plaintiff were not vulnerable to the objection that they commented on the evidence, singled out facts, assumed the existence of disputed facts, or failed to require a finding on matters of defense.</p> <p>10. APPELLATE PRACTICE: Conclusiveness of Finding. A finding by the trial court, on a hearing on a motion for a new trial, that plaintiff’s counsel, during his argument to the jury, had not made certain remarks, as alleged by defendants’ affidavits, which finding was supported by plaintiff’s affidavits, is conclusive on the appellate court.</p> <p>11. TRIAL PRACTICE: Remarks of Court: Argument of Counsel. In an action for conversion, held that remarks made by the trial judge and remarks made by the attorney for respondent in his argument to the jury were not erroneous.</p>

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. Held: but not both. Sessions v. Block, 40 Mo. App. 569; Provenchere v. Reifess, 62 Mo. App. 50; Lumber Co. v. Greffet, 154 Mo. App. 33; Mechem on Agency, section 696.

Louis City Circuit Court — No». Eugene McQuillin,-Judge: (1) The measure of damages for breach, of a contract of sale is the difference between the contract price and the market price of the commodity at the time and place where it should be. delivered; or, if there is no market of the commodity at the place of delivery, the market price at the next available market, with allowance for expense of transportation and hauling, is the measure of its value at the place of…

Louis City Circuit Court. — Hon W. B. Homer, Judge. (1) The trial court committed reversible error in declaring as a matter of law, at the request of respondent, that the beneficiar}' in the certificate sued on was never changed from Pearl Riley, the original beneficiary, to Ella Wintergerst and Pearl Riley, and that consequently, the appellants having sued on a joint cause of action could not recover.

— Hon. E. M. Dearing, Judge. (1) A will must be construed according to the trne intention of the testator, and that intention must be gathered from within the four corners of the will and not from extrinsic evidence or testimony. Cross v. Hoch, 149 Mo. 325; Stewart v. Jones, 219 Mo. 614; Mead v. Jennings, 46 Mo. 91; Balcart v. Barkart, 86 Mo. App. 83; Murphy v. Carlin, 113 Mo. 112.

<p>1. COURTS OF APPEALS: Determination of Jurisdiction. A court of appeals not only "has authority to determine whether a case is within its jurisdiction, but is bound to do so.</p> <p>2. JURISDICTION: Consent. Jurisdiction of the subject-matter cannot be conferred by consent.</p> <p>3. » SUPREME COURT: Jurisdiction: Construction of Federal Statute. In an action to enforce the lien of a special taxbill for street construction work, defendants alleged that the district upon which a part of the cost was assessed was not established according to the provisions of the city charter; that, if it had been so established, defendants’ property would not have been included; that the boundary of the district was so drawn that defendants’ property would be assessed for the improvement of such street, and also for the improvement of another street when opened, while other property similarly situated was not assessed; that the assessment was in substantial excess of any benefit, and amounted to confiscation of private property for public use, and a taking of property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States; that if the district was correctly defined under the charter, the charter violated said amendment; that the charter afüordéd no opportunity to the landowners to be heard, and therefore violated said amendment; that defendants were afforded no opportunity to be heard; and that the enforcement of the assessment would result in the taking of their property without due process of law, in violation of said amendment. Judgment having been rendered against defendants, they filed a motion for a new trial in which they reasserted the same claims that their rights under the Federal Constitution had been invaded that were pleaded in the answer, and this motion being overruled, they appealed to the Court of Appeals. Held, that questions concerning the construction and application of the Constitution of the United States were involved, within the provision of the State Constitution (Sec. 12, Art. VI) vesting exclusive jurisdiction in the Supreme Court in cases in which the construction of the Federal Constitution are involved, and hence the case should be transferred to the Supreme Court.</p>

<p>Appeal from St. Louis City Circuit Court. — Ho». IF. B. Homer, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Ho». .IF. B. Homer, Judge.</p>

— Root. L. B. Woodside, Judge. (1) A condition sale, whether recorded or not, is good between the parties and subsequent purchasers having notice. Machinery v. Brick Tile Co., 174 Mo. App. 485', 35 Cyc. 682. (2) Where one statute refers to and- adopts specifically another statute then an amendment of the statute so adopted effects a corresponding amendment of the adopting statute.

— Hon. L. B. Woodside, Judge. (1) Instruction number 2 given at tlie instance of the plaintiff, was not a correct declaration of law under the facts in the case; it failed, to submit to the jury the question whether or not the defendant had notice of the defective condition of its fence' a sufficient length of time to have repaired it; it ignored the defense of the defendant that the fence had been altered and changed by the owner of the adjoining lands; it put upon the…

— Ho». David E. Blair, Judge. (1) Instruction number 2, given on behalf of plaintiff, is erroneous because it assumes that a fire destroyed the property, and further assumes that the property destroyed belonged to the plaintiff. These were all issues in the case raised by the pleading, and the jury should have been required to determine these questions, and it was not proper for the court to assume in instructions the above stated facts. Stanley v. Railroad, 112 Mo.

— Hon. David E. Blairf Judge. (1) The two letters of November 14, 1912, in their relation to the issues, in this case occupy the same position as any other two separate instruments or papers between the same parties and must be read and construed together as one instrument, in arriving at the intention and meaning of the writer in the transaction in issue, and the recitals or statements in one should be explained or limited by reference to the other.

— How. G. A. Galvird, Judge. (1) It was reversible error to refuse defendant a continuance on account of the absence of Dr. Hill as a witness, or as an alternative to refuse to allow defendant to read to the jury the statement of what Dr. Hill would testify as set out in the application., Oliver v. Aylor; 173 Mo. App. 323; Epstein v. Railroad, 250 Mo. 1.

— IIon. I). E. Blair, Judge. (1) Over the objection of the appellants the court admitted in evidence the so-called lien account. It contained lienable and nonlienable items and also contained items that were so indefinite without explanation that it was impossible to tell whether they were lienable or nonlienable. Dwyer et al. v. Flannagan, 87 Mo. App. 340; Edgar v. Saulisbury, 17 Mo. 271; O’Brien etc. v. Haydock, 59 Mo. App. 653; Oshea v. Oshea, 91 Mo. App. 221.

— Ho». G. D. Stewart, Judge. (1) The contract here sued on having, been made and entered into in the State of- Iowa and performed in said State its validity must be determined by the law of that State. Summers v. Aid Assn., 84 Mo. App. 605; Roach v. Sb Louis Type Foundry, 21 Mo. App. 118; Cravens v. New York Life Ins. Co., 148 Mo. 583; Dolan v. Royal Neighbors, 123 Mo. App. 147; Roberts' v. M. W. of A., 133 Mo. App. 207; Horton v. Ins.

<p>Appeal from Buchanan Circuit Court. — Hon. Wm. D. Busk, Judge.</p> <p>The court erred in overruling defendant’s challenge to the array of jurors. State v. Austin, 183 Mo. 478; Sess. Acts 1911, p. 308; Johnson v. State, 102 Ala. 1, 16 So. 99; Brazier v. State, 44 Ala. 387; Wilkins v. State, 112 Ala. 55; People v. Davis, 73 Calif. 355; Borrelli v. People, 164 111. 549; Jones v. State, 3 Blackf. 37; Mitchell v. Likens, 3 Id. 258.</p> <p>It has always been held in this State, and generally throughout the States of the country, that the statutory method of drawing, summoning and empaneling jurors is directory, and that a substantial compliance with the statutes is all that is necessary. State v. Pitts, 58 Mo. 556; State v. Breen, 59 Mo. 413; State v. Gleason, 88 Mo. 582; State v. Mathews, 88 Mo. 121; State v. Jackson, 167 Mo. 291; State v. May, 172 Mo. 630: Reeves v. State, 10 So. 90Í; State v. Daniels, 46 S. E. 743; State v. Wilson, 144 N. W. 47; Ullman v. State, 103 N. W. 6; Young v. State, 58 So. 188.</p>

— Hon. Fred Lamb, Judge. (1) Upon the whole record plaintiff is not entitled to recover, the demurrer to plaintiff’s evidence should have been sustained. The declaration of law that plaintiff was not entitled to recover as requested at the close of all the evidence should have been made. The finding and judgment should have been for defendant. Hicks v. Surety Co., 169 Mo. App. 487, 9 Cyc. 95; Horton v. Ins. Co., 151 Mo. 604; Lucas v. Western Union Tel.

— Hon. Fred Lamb, Judge. (1) The court of bankruptcy had no jurisdiction over the- property in question further than to set it out to the bankrupt as his exemptions, and having no jurisdiction to administer the property, the bankruptcy proceedings would not and could not affect any lien against it, except such as are expressly provided for in the Bankruptcy Act.

<p>CARRIERS OF GOODS: Conversion: Payment into Court: Costs. A carrier was sue.d in conversion for the loss of a shipment of apples. It answered by denying the conversion, but admitting that it necessarily sold the apples and that it had the proceeds, which it alleged it then deposited in court for the plaintiff. But the proceeds were not paid into court until at the trial when plaintiff accepted the amount. If was held that defendant wad liable for the costs.</p>

<p>Appeal from Buchanan Circuit Court. — Eon. G. E. Mayer, Judge.</p>

— Hon. A. D. Bwrnes, Judge. It is the law in this State that the sole measure of damages in a suit to recover for a change of grade in a street is the difference in the market value of the property immediately before and after the grading, as caused by the change of grade. Dale v. City of St, Joseph, 59 Mo. App. 566; Riñes v. City of Columbia, '80 Mo. App. 173; Robinson v. City of St. Joseph, 97 Mo. App. 503.

<p>Appeal from Adair Circuit Court. — Hon. C. I). Stewart7 Judge.</p>

<p>1. NEGLIGENCE: Automobiles: Proper Care: Humanitarian Rule. A woman drove an electric automobile along a crowded business street, in Kansas City, with her view, straight ahead, partially obstructed by two female companions on the front seat. Another woman with a female companion, attempted to walk across the street and not observing the machine it struck her with such force as to knock her down and run over both her legs with both the front and rear wheels and several feet beyond. It was helé, that the driver of the machine was not exercising the care required by the statute and that the injured woman could hold her liable under the humanitarian rule.</p> <p>2. -: Humanitarian Rule: Statute: Contributory Negligence. The statute concerning automobiles stating a liability of a driver for injury to others concludes with the words, “unless the injury was caused by. the direct negligence of the injured person contributing directly thereto.” It was helé that this did not prevent a case being made under the humanitarian rule.</p> <p>3. ELECTRIC CAR: Statute: Street: Crossing: Care. Under the statute relating to automobiles (Sec. 8523, R. S. 1909), it is the duty of the driver of such machines along the street, between crossings as well as at crossings, to exercise the highest degree of care that a very careful peson would use and to not only keep ■ r lookout “straight ahead,” but laterally, as well, and if such driver fails in these respects he is liable under the humanitarian rule for injuring a careless pedestrian crossing the street.</p> <p>4. HUSBAND AND WIFE: Common Law: Married Woman’s Act. At common law the husband is liable for the wrongful negligent act of the wife though committed out of his presence and without his procurement or knowledge. And our Married Woman’s Act as to property rights of married women and their right to sue and liability to be sued without joining the husband, has not altered the common law.</p> <p>5. CONSPIRACY: Proof: Joint Liability: Nature of Charge. Though several wrongdoers are charged with conspiring in the commission of the wrong, the conspiracy need not be proven, unless judgment against several is insisted upon, in which case the conspiracy or joint act in combination must be proven. So the conspiracy must be proven if the wrong charged is such „ as can only be committed by conspiracy, or combination.</p> <p>6. INSTRUCTIONS. The practice of asking a great number of instructions is condemned.</p> <p>7. NEGLIGENCE. It was proper for a trial court to refuse to declare, as a matter of law, that it was not negligence to have two companions seated on the front seat of an electric automobile while driving in a crowded street, when the evidence had shown that such fact obstructed the view ahead.</p> <p>8. HUMANITARIAN RULE: Plaintiff’s Last Chance. An instruction was properly refused which declared that the plaintiff could not recover under the humanitarian rule if she “had the last clear chance to step aside and negligently failed to do so.” It omits to submit that she was aware of the immediate danger.</p> <p>9. INSTRUCTIONS: Appendicitis. Where there was competent evidence that appendicitis could result from being run over by an automobile, it was proper to submit that as an element of damage.</p> <p>10. VERDICT: Excessiveness. A verdict for $3500 as damages for being knocked down and run over by an automobile weighing 3500 pounds and inflicting severe injury is not excessive.</p> <p>11. LAWYERS: Misconduct. Where a lawyer for one party to a case on trial in which his client obtains a verdict, makes an improper remark to the lawyer on the other side, during recess, when a juryman is standing near, it is the duty of the lawyer 185MoApp34 addressed to immediately report to the court. And if lie waits until after the trial goes against him it is too late.</p> <p>12. TRIAL, PRACTICE: Witnesses. A trial judge may properly interrogate witnesses during the course of a trial.</p>

<p>1. DAMAGES: Gas: Ornamental Trees: Damage: Evidence. Where evidence showed a gas company laid its pipes along a street near to the parkway in which the adjoining owner’s ornamental shade trees were growing, and that leaks were found in such pipes, and dirt near the trees was discolored and filled with an odor of gas, and the trees died, a verdict in favor of the owner for damages will be sustained.</p> <p>2. -: Gas Company: Degree of Care. A gas company is not an insurer, but it is held to a degree of care commensurate with the dangerous character of the substance handled.</p> <p>3. -: Instruction: Division of Damages. Where there was evidence tending to show that plaintiff’s shade trees were killed by defendant’s gas escaping from its mains and also evidence tending to show that they were injured and may have died from the work of borers or worms, it was proper to refuse an instruction directing the jury not to assess the whole damage against the gas company. The proper instruction would have .been to • have directed the jury in assessing the value of the trees against the gas company, if it killed them, to take into consideration their damaged condition by reason of the borers.</p>

— Hon. D. H. Harris, J udge. (1) There was not only a total failure of proof to support it, but defendant’s own testimony negatived the principal hypothesis. Friedman v. Pulitzer Publishing Co., 102 Mo. App. 683; Hewitt v. Steele, 118 Mo. 463; Beauchamp v. Higgins, 20 Mo. App. 514; Sallee v. McMurry, 113 Mo. App. 153; Mateer v. Railroad, 105 Mo. 320; Campbell v. Van Houten, 44 Mo. App. 231; Newell v. St. Louis Bolt Co., 5 Mo. App. 253.

— Hon. D. II. Harris, Judge. (1) The court erred in admitting irrelevant, immaterial and inadmissable and prejudicial evidence on the part of plaintiff, and offered and read in evidence on the part of plaintiff, over the timely objection of defendant. Shaw & Co. v. Bryan, 39 Mo. App. 526; Wolff v. Matthews, 39 Mo. App. 379; O’Connell v. Nicholson, 67 Mo. App. 659.

— Eon. G. D. Stewart, Judge. The court erred in refusing defendant’s declaration 1. The policy explicitly designated and limited the insurance to “the barn.” No additions or other structures were covered, or intended to be insured. Other buildings and additions were insured in this policy. The silo was a separate structure not covered by the policy. 19 Cyc. 665 (3); 13 Am. & Eng. Ency. Law (2 Ed.), Ill, 112; Forbes v. Insurance Co., 164 Mass. 402; American Ins.

<p>Appeal from Buchanan Circuit Court. — Hon. G. H. Mayer, Judge.</p>

<p>Appeal from Daviess Circuit Court. — Hon. A. B. Davis, Judge.</p>

C. A. Galvird, Judge. (1) The court erred in admitting in evidence over defendant’s objection the account, or what purpoted to be the account, of the plaintiff with the Farmers Bank of Bates county, Missouri.

— Ho». G. J„ Galvird, Judge. (1) An indictment that follows the language of the statutes, substantially, in misdemeanor offenses is good. State v. Remsaur, 140 Mo. App. 401; State v. Hicks, 170 Mo. App. 188; State v. Newman, 152 Mo. App. 149; State v. Muarer et al., 255 Mo. 165.

— Eon. E. B. Sham, Tudge. (1) The contract or memorandum offered in evidence contained all the essential terms of a complete contract, to-wit: First, the parties; second, the subject-matter; third, the price; fourth, time and place and manner of payment; fifth, time and place of delivery. Darnell v. Lafferty, 113 Mo. App. 282. (2) If the time of delivery is not specifically specified and not agreed upon, then the law will construe a reasonable time.

<p>1. REAL ESTATE BROKERS: Commission. The plaintiffs sued to recover a real estate agent’s commission for the sale of the defendant’s 360 acre farm. The plaintiffs advertised a farm for sale, and a real estate man from another town exhibited it to a prospective purchaser, who declined to buy this farm. On their way back to town, the plaintiffs told him about defendant’s farm, and he entered into a contract to buy it. After-wards the sale was made and the plaintiffs’ commission was not paid. Held, that where an agent employed to produce' a customer who is ready, willing and able to buy on the terms proposed by the principal, produces a customer whom the principal accepts and with whom he enters into a contract, the agent has earned his commission.</p> <p>2. --: -: -: Net Price. Where the employment of an agent is not on terms which make his right to recover a commission depend upon his producing a sale at a fixed net sum to his principal, and where the principal makes a sale to a buyer found and introduced by the agent, he cannot escape liability for a commission on the ground that ha sold at a less price than that at which he listed the property with the agent.</p> <p>3. -: -: -:--. Where an agent takes land ■to sell for a net price to his principal, he cannot recover any commission unless he sells for more than the net price.</p> <p>4. -:--. But the principal must act in good faith toward his agent and is not allowed, while the agent’s authority stands unrevoked, and he is laboring in good faith to make a sale at a price that will give him a commission, to fraudulently or improperly interfere with the agent by selling to the buyer, produced by the agent, at the fixed net price. Such interference will entitle the agent to recover a reasonable commission.</p>

— Now. Carr McNatt, Judge. (1) The cost of the animal is material, and if incorrectly warranted in the application will avoid the policy. Johnson v. Ins. Co., 120 Mo. App. 80; Ins. Co. v: Smith, 157 S. W. 755; Jacobs v. Ins. Co., 146 Mo. 523; Jenkins v. Ins. Co., 171 Mo. 375; Whitmore v. Supreme Lodge K. & L., 100 Mo. 36; Yan Cleve v. Union Casualty Co., 82 Mo. App. 668; Life Ins. Co. v. Glaser, 245 Mo. ,377.

— Hon. J. P. . Foard, Judge. (1). The decree in the case of Heike v. Williams Cooperage Co. confirmed the rights of Williams Co. 'to the 18-inch white oak trees on the land and the Great Western Land Co. and plaintiff- herein are bound thereby (as the successors in title as well as the agents and servants of the Brooklyn Cooperage Co., are bound thereby. 2 High oit Injunct., sec. 1440a; In re Coggshall, 100 Mo. App. 585.

— Hon. L. B. Woodside, Judge. (1) Plaintiff was a holder for value of the note (sec. 9998, R. S. 1900), and the defendants having signed the same as makers were primarily liable thereon (sec. 10161, R. S. 1909), and their engagement to pay it according to its tenor was absolute (secs. 10161 and-10030, R. S. 1909). McCarty v. Smith, 97 Pac. 329; Yanderford v. Farmers and Merchants Bank, 105 Md. 164; S. C., 10 L. R. A. 129; S. G, 66 Atl. 47; West v. Stubblefield, 17 App.

- — Son. Joseph D. Perkins, Judge. (1) Tlie judgment of plaintiff is a “due” and a “debt” within the meaning of the Constitution a,nd Statutes of this State making subscribers to the capital stock of corporations liable to its creditors, upon insolvency of the corporation-, for the difference between the reasonable value of the property received and accepted by the corporation in payment of its capital stock and the par value of said stock.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The court erred in admitting evidence of rental value of piano from date of caption. That is not a legal element of damage herein, • because respondent did not rent another piano for her use pendente lite. She was deprived of the use, namely, loss of pleasure of playing on the piano, but that deprivation cannot be measured by money.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) The special tax hills made a prima-facie case for plaintiff on each count. Charter, City of St. Louis, Art. 6, sec. 25; Yieth v. Planet P. & P. Co., 64 Mo. App. 207.

<p>Meyer v. Bobb, ante, p. 685, followed.</p>

Louis City Circuit Court. —Hon. Hugo Muench, Judge. (1) Tlie plaintiff’s case is without evidence to support it. The peremptory instructions to find for the defendant should have been given and the refusal of them is error. The judgment should be reversed. Nagle v. Gas Light Co., 169 Mo. App. 243; Lohse v. Brewing Co., 169 Mo.

Louis City Circuit Court. — Hon. Chas. Glaflin Allen, Judge.