Volume 186 — Missouri Appeal Reports

Louis City Circuit Court. — lion. Daniel D. Fisher! Judge. (1) The court erred in refusing to submit plaintiff’s right of recovery as in quantum meruit. The petition is merely one of an account. Such being true, it was competent for plaintiff to recover in quantum meruit for reasonable value as well as on a special contract, if the evidence revealed one. Swift v. Joknson, 158 S. W. 96; Johnson v. Loomis & Snively, 50 Mo.

Louis City Circuit Court. — flow. William M. Kinsey, Judge. (1) It is the duty of the master to furnish the servant a reasonably safe place to work in. Holman v. Souther Iron Co., 152 Mo. App. 672; Anderson v. Western Coal & M. Co., 138 Mo. App. 76-; Clark v. Union Iron & Foundry Co., 234 Mo. 436. (2) It was negligence in defendant to pile these barrels in this place in such a “shaky” manner that they were likely to fall. Rigsby v. Oil Well Supply Co., 115- Mo.

Louis City Circuit Court. — Hon. J. Hugo Grimm} Judge. (1) Where the policy provides for the payment of an indemnity for the loss of one entire hand or foot, or the loss of two entire hands or feet, it is not necessary, in order to recover thereunder, that there should be an actual physical severance of the member from the body. Any loss which renders it practically useless is sufficient. 1 Cyc. p. 272, and cases cited; 5 Words & Phrases, p. 4236; Sisson v. Sup.

Louis City Circuit Cour.t. — Hon J. Hugo Grimm, Judge. (1) The court erred in overruling the demurrers to the evidence, because the plaintiff’s son’s own story shows that it was physically impossible for him to have been injured in the manner in which he claims. Where the testimony offered by plaintiff and relied upon by him to make out his case utterly ^at variance with physical facts, it is the duty of the court to give a peremptory instruction for the defendant.

Louis City Circuit Court. — Eon. Charles Claflin Allen, Judge. (1) The instrument sued on in this case is not a contract. It lacks the elements of a contract and is nothing more than a receipt. A memorandum of a contract which does not purport to be a complete expression of the entire contract is open to explanation by oral evidence. Hopkins v. Harlin, 110 Mo. App. 465.

Louis City Circuit Court. — Eon. Daniel D. Fisher} Judge. (1) There can be doubt that under the law of this State a father who obtains a divorce from his wife, or, who is divorced by his wife, is still liable to the mother for necessaries, support, education, etc., furnished the children of the marriage, where the decree of the divorce makes no provision for their maintenance, etc., where the custody of such children is left by the decree to the care and nurture of the…

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) Writs of error lie to correct errors on the face of the record. State v. Kelly, 206 Mo. 685; R. S. of Mo. 1909, sec. 2054. (2) Errors apparent upon the face of the record are reviewable by the appellate courts without a bill of exceptions being filed. Fink-elnburg & Williams, Missouri Appellate Practice, p. 45; Patterson v. Yancey, 97 Mo. Ap-p. 693; Cartwright v. Liberty, 205 Mo. 126; State v. Gardner, 157 S. W. 84.

Louis City Circuit Court. — Hon. George C. Hitchcock, Judge. (1) The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the testimony — because there was no proof of any facts that establish liability on the part of the appellant. Bair v. TIeibel, 103 Mo. App. 621; Czemicke v. Ehrlich, 212 Mo. 386; Smith v. Box Co., 193 Mo. 715; Lohmeyer v. Cordage Co., 113 S. W. 1108.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. (1) The fact that the defendant unloaded the pipe and took same into his possession when it arrived at its destination, and when the defendant had full knowledge of the delay, if any, in the delivery to the railroad and the delay in shipment, . constituted a complete acceptance of the pipe, even conceding that plaintiff was in default in making shipment.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. The court erred in failing to sustain the plea of former adjudication, and in sustaining the demurrer thereto and awarding judgment for defendant. Mc-Ginnis v. Railroad, 200 Mo. 347; Anderson v. Railroad, 200 111. 329'; Emery v. Fowler, 39 Maine, 326; Lippman v. Campbell, 40 Mo. App. 564. (1) “Parties” are all persons having a fight to control the proceedings to make defense to adduce or examine witnesses or appeals.

Louis City Circuit Court. — Hop. George C. Hitchcock, Judge. (1) Defendant’s motion to make the amended petition more definite and certain should have been overruled. Sec. 1837, R. S. Mo. 1909; Atwinger v. Fellner, 46 Mo. 276. (2) Defendant cannot by motion to make more definite and certain require plaintiff to furnish the evidence upon which plaintiff expects to prove his case. Sec. 1818, R. S. Mo. 1909.

Louis City Circuit Court.— Hon. William M. Kinsey, Judge. The decree is erroneous: (a) Representations by appellant even if tbey turned out to be false are still not fraudulent and therefore not actionable if believed by Mm (tbe vendor) to be true. Bank v. ILutton, 224 Mo. 70. (b) Even though the statements turned out to be false and were relied on, respondent (the vendee) must still have investigated to hold appellant (the vendor) liable, having opportunity to do so.

Louis City Circuit Court. — Hon. Eugene McQuilUn, Judge. (1) The court should have sustained the demurrer offered by the defendant at the close of the entire ese, as the evidence does not show any ngligence on the part of the defendant, and for this reason this cause should he reversed without remanding. Plaintiff’s evidence is against reason, and the physical facts show it to be untrue, and cannot sustain this action. Daniels v. Railroad, 177 Mo.

Louis City Circuit Court. — Hem. Irvin V. Barth, Judge. (1) It is well-settled law in this State that a real estate broker performs his duty, and is entitled to his commissions, when a purchaser is introduced who is ready, willing and able to buy on the terms authorized by the principal. Gelatt v. Ridge, 117 Mo. 553; Finley v. Dyer, 79 Mo. App. 604; Hayden v. Grillo, 42 Mo. App. 1, s. c., 35 Mo. App. 647; Bailey v. Chapman, 41 Mo. 536; Love v. Owens, 31 Mo.

Louis City Circuit Court. — Eon. George E. Shields, Judge. The court erred in admitting evidence of the action of the police in refusing to allow plaintiff to place his furniture in the premises. The landlord is not liable for these acts of a mere stranger not in possession or claiming the right to possession of the property. King v. Reynolds, 67 Ala. 229; Hueist v. Marx, 67 Mo. App. 418 ; Podalsky v. Ireland, 121 N. Y. Supp. 950; Browder v. Edmonson, 7 Ga.

Louis City Circuit Court — Hon. Daniel D. Fisher, Judge. (1) The court erred in refusing to direct a verdict for the defendant, and in overruling motion for new trial, (a) The duty of a master to furnish a safe place to work'does not require him to provide against hazards such as are ordinarily incident to the employment, as where the danger is temporary and when'it arises from the hazard and progress of' the work itself.

Louis City Circuit Court. — Eon. George G. Hitchcock, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence at the close' of plaintiff’s testimony, because plaintiff admitted that the defendant carried out its contract with her. Bishop on Contracts, sections, 779, 781-784; 7 Am. & Eng. Ency. of Law (2 Bd.), p. 125 (e); 9 Cyc. 647 (e); Collins v. Whigham, 58 Ala. 438; Boniol v. Henaire, 10 Mart. (O. S.) 357; Twaits v. Penna.

Louis City Circuit Court. — Hon. George C. Hitchcock, Judge. (1) The burden of proof was, of course, on the plaintiff; that is, it was' incumbent on him to sustain the petition by a preponderance of the evidence. This, we submit, he absolutely failed to do. Glover v. Henderson, 120 Mo. 367. (2) The court erred in overruling objections to leading questions. Engelking v. Eailroad, 187 Mo. 158; 1 Bedfield’s Edition of Greenfield’s Ev., 477; State v. Whalen, 148 Mo. 286.

Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge. (1) Plaintiff seeks to recover under his petition for services rendered a third person on an implied contract; plaintiff knew that the services to be rendered were not for the benefit of the defendant, and that defendant was under no legal obligation to pay there: for. Plaintiff cannot predicate a claim against defendant unless defendant expressly promised to pay for them before the services were rendered.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) A person holding commercial paper as collateral security for a debt due Mm has no right to compromise with the parties who owe the paper held as security for a less sum than the sum due on the paper held as security, and if he does he will he compelled to account to the pledgor for the full value of the security so released.

Appeal' from St. Louis City Circuit Court. — How. Daniel D. Fisher, Judge. (1) This action is one in the nature of assumpsit for the sale of goods, wares and merchandise of the price of more than thirty dollars, and so within the Statute of Frauds. Schmidt v. Rozier, 121 Mo. App. 306; Tower Grove P. M. Co. v. McCormack, 127 Mo. App. 349; Pratt v. Miller, 109' Mo. 78; Shelton v. Thompson, 96 Mo. App. 327; Burrell v. Highleyman, 33 Mo. App. 183.

<p>1. HABEAS CORPUS: Custody of Child: Retention of Jurisdiction After Final Judgment. In a habeas corpus proceeding by the father of a child against its grandparents, for the custody of the child, the court had no power to incorporate in the judgment remanding the child a provision that the court retained jurisdiction of the cause for the purpose of making such other orders from time to time, with reference to the custody of the child, as its best interest might require, since the court exhausted its jurisdiction when it ordered the child remanded; Sec. 2510, R. S, 1909, not being applicable, for the reason that it relates only to habeas corpus proceedings between husband and wife.</p> <p>2. -: -: -: Issues. In a habeas corpus proceeding by the father of a child against its grandparents, for the custody of the child, the petition prayed that the writ be issued to bring the child before the court that she may be released from the restraint and keeping of respondents, and that the care, custody and control of the child be awarded to petitioner. The return of respondents asked that they be discharged from the writ and that the child be restored to their custody and control. Held, that a provision in the judgment remanding the child to the custody of respondents, that the court retained jurisdiction of the cause for the purpose of making such other orders, from time to time, with reference to the custody of the child, as its best interest might require, was not within the issues and was coram non judice. .</p> <p>I. -: Nature of Action. Habeas corpus is an action at law.</p> <p>4. -: Appellate Practice: Appealable Orders. A judgment in a habeas corpus proceeding, either discharging or remanding the petitioner, is not appealable.</p> <p>5. PROHIBITION: Habeas Corpus: Orders Subsequent to Final Judgment: Jurisdiction. Prohibition lies to restrain the circuit court from making orders with respect to the custody of a • child, in a habeas corpus proceeding, where a final judgment has previously been entered in the proceeding.</p>

— Hon. W. 8. C. Walker, Judge. ■ (1) The respondent visited and inspected the land, and there is no testimony that he was in any way hindered from making as extensive an investigation of it as he desired. Under the circumstances he cannot allege that he was defrauded. Morse v. Rathburn, 49 Mo. 91; Judd v. Walker, 215 Mo. 337; McFarland v. Carver, 34 Mo. 195; Dunn v. White, 63 Mo. 181; Wade v. Ringo, 122 Mo. 322; Bradford et al. v. Wright, 145 Mo.

— Eon. IF. A. G. Walker, Judge. (1) The respondent visited and inspected the land and there is no testimony that he was in any way hindered from making as extensive an investigation of it as he desired. Under the circumstances he cannot allege that he was defrauded. Morse v. Rathburn, 49 Mo. 91; Judd v. Walker, 215 Mo. 337; McFarland v. Carver, 34 Mo. 195; Dunn v. White, 63 Mo. 181; Wade v. Ringo, 122 Mo. 322; Bradford et al. v. Wright, 145 Mo.

— Hon. Frank Kelly, Judge. (1) The appellants as accommondation sureties are facorites of the law and have a right to stand upon the strict terms of their obligation. State v. Thomas, 19 Mo. 616; Douglass v. Reynolds, 7 Peter (U. S.) 113; Brant on Suretyship and Guaranty, sec. 79. (2) The statute was not designed to give damages beyond the natural and approximate damages resulting from the running of the attachment.

— Now. FrafiJk Kelly, Judge. (1) The trial court should have held under the evidence that even though those in charge of appellants’ train were guilty of some negligence as set out in plaintiff’s petition, yet that Samuel Tanner, deceased, was guilty of such contributory negligence as to bar any right of recovery on the part of respondent.

<p>Appeal from New Madrid County Circuit Court.— Hon. Frank Kelly, Judge.</p>

— Ho». J. P. • Foard, Judge. (1) If one who assumes to do an act which will be for the benefit of another, commits a fraud in so doing, and the person to whose benefit the fraud will enure seeks, after knowledge of. the fraud, to avail himself of that act, and to retain the benefit of it, he must be held to adopt the whole act, fraud and all. Zehnder v. Stark, 248 Mo. .55; Atlantic .Mills v. Indian Orchard Mills, 147 Mass. 275.

— No». W. 8. G. Walker, Judge. (1) Section 3330, Revised Statutes 190-9, is penal in its nature and must be strictly construed and applies only to sncb cases as come clearly within its provisions. Connell v. Tel. Co., 108 Mo. 459; Cowan v. Tel. Co., 149 Mo. App. 407. (2) A party is entitled to recovery only upon the cause of actions stated in his petition. Sedalia Gas Light Co. v. Mercer, 48 Mo. App. 644; Jacquin v. Grand Ave. Cable Co., 57 Mo.

— Hon. Frank Kelly, Judge. (1) Instruction number 1 given for plaintiff is erroneous because it allows a recovery for humiliation and fright, when there was no competent evidence from which the jury could conclude that plaintiff was humiliated, and no evidence whatever that she- was frightened by the alleged conduct of the conductor. It is error to submit to the jury issues which have no evidence to support them.

<p>1. APPEAL AND ERROR: Assault by Railroad Brakeman: Review of Evidence: Bias and Prejudice. Action because of injuries received by reason of an alleged assault on plaintiff by a brakeman and a news agent on defendant’s train. Evidence examined and summarized. The verdict of the jury is considered so much against the weight of the evidence as manifestly to be the result of prejudice and bias.</p> <p>2. -: Verdict Against Weight of Evidence: Bias and Prejudice: Reversal. Where from the overwhelming weight of the evidence it can only be concluded that passion and prejudice controlled the jury and where the amount allowed shows passion and prejudice, the appellate court should reverse the judgment and remand the case for a new trial instead of reducing the verdict.</p>

— No». Guy D. Kirby, Judge. (1) The petition should allege an insurable interest in the assured at tlie time be obtained the policy and at the time of the loss. The failure to do so is fatal. Harness v. The National Fire Ins. Co., 62 Mo. App. 245 ; Scott v. Phoenix Ins. Co., 65 Mo. App. 75; Clevinger v. Northwestern Ins. Co., 71 Mo. App. 73. Hence the demurrer of defendant, its objection to any evidence, and its motion in arrest, should have been sustained.

Two. — Hon. D. E. Blair, Judge. (1) ' Plaintiff is not entitled to recover because notice of the injury was not given defendant as provided by the policy. Anderson v. Frankfort Accident & Plate Glass Ins. Co., 9 Cal. App. 473, 99 Pac. 537; London Guarantee & Accident Co. v. Siwy, 35 Ind. App. 340, 66 N. E. 481; Australian Accident Ins.

— lion. W. S. G. Walker, Judge. (1) The law requires a physician in treating an injury to exercise only such care and sldllfulness as ordinarily careful and skillful physicians exercise, under the same circumstances:. Murdock v. Kimberlain, 23 Mo. App. 523; West v. Martin, 31 Mo. 375.

— Hon. W. 8. G. Walker, Judge. (1) Respondent assumed the risk of being injured, in the manner and by the means charged, when he undertook to assist in the repair work at appellant’s mill. Saversnick v. Schwarzschild & Sulzberger, 125 S. W. 1192; Brandt v. K. C. Breweries Co., 141 S. W. 445; Maynard v. Railroad, 137 S. W. 59; Lowe v. Railroad, 148 S. W. 956; Smith v. Forrester Nance Box Co., 92 S. W. 394; Jones v. Pioneer Cooperage Co., 134 Mo.

— Hon. E. M. Bearing, Judge. (1) The count in the indictment under which defendant Bates was convicted states no offense under the law. State v. Hume, 141 Mo. App. 487. (2) Instruction numbered 1 falls far short of the necessary requirements of the statute in this, that it does not submit to the jury the question of whether or not Dr. Bates had knowledge that the whiskey and medicine prescribed by him was to be used for other than medicinal purposes.

— Hon. Frank Kelly, Judge. (1) The evidence in this case shows that district number 4 was not organized according to law and therefore has no authority or power to proceed with the construction of its levee and ditch. R. S. 1809, sections 8443-4; Harris v. Co., 49 Cal. 662; Walker v. Dist., 6 Mackey, 352; Hinkel v. Mattoon, 170' 111. 316; Brophy v. Laudmaa, 28 Ohio St. 542; Cuming v. Grand Rapids, 9 N. W. 141. (2) Injunction is the proper remedy in cases, like this.

— Ron. W. S. G. Walker, Judge. (1) Plaintiff was the aggressor in the first fight on the depot platform, and the demurrer to the evidence under the first count of the petition should have been sustained. O’Brien v. Transit Co., 185 Mo. 269; McQuerry v. Railroad, 117 Mo. App. 255; Eads v. Railroad, 43 Mo. App. 536; Breen v. Transit Co., 108 Mo. App. 452.

— Now. Frank Kelly, Judge. (1) The court erred in the admissibility of evidence. Witness must state facts and not opinions and conclusions; and questions calling for opinions and conclusions are not permissible. Sparr v. We'.lmann, 11 Mo. 230; Masterson v. Transit Co., 204 Mo. 507; Weatherall v. Patterson, 31 Mo. 458; Marshall v. Taylor, 168 Mo. App. 247; Eskine v. Loewenstein, 82 Mo. 307-308.

— Eon. W. 8. G. Walker, Judge. Since respondents did not give the notice of - their claim for damages as provided by the tenth paragraph of the written contract of shipment, they are not entitled to recover in this case. Hamilton v. Railroad, 177 Mo. App. 145; Joseph v. Railroad, 175 Mo. App. 18; Clegg v. Railroad, 203 Fed. 971.

— Hon. Charles B. Baris, Judge. The evidence offered by plaintiff as a whole, showed that if plaintiff was injured it was through the unauthorized acts of the street commissioner, as he was not directed or empowered either by ordinance or by resolution of the hoard of .mayor and aldermen- of said defendant to do such work, and defendant was not, therefore, answerable in damages to plaintiff even if actually injured. Sec. 9400, R. S. Mo. 1909; Ellison v. Gleason, 136 Mo.

— Ro». W. S. G. Walker, Judge. (1) A single wrongful act gives only one cause of action, no matter bow numerous the items of damage may be, and the damages resulting from one and the same tort must be assessed and recovered in one suit. Pucket v. Railroad, 25' Mo. App. 650,; Steiglider v. Railroad, 38 Mo. App. 511; Bank v. Tracey, 141 Mo. 259; Stickford v. St. Louis, 75 Mo. 309; Cook v. Globe Printing Co., 227 Mo. 524; 1 E-nc. PI. & Pr., p'. 159.

— No». W. S. U Walker, Judge. The State was permitted to convict the defendant of the offense charged by the proof of other and distinct conversations or statements than that charged. This evidence was incompetent and should not have been admitted for that purpose. State v. Pulitzer, 12 Mo. App. 6; Tippens v. State (Tex), 43 S. W. 1000-; Collins v. State (Tex.), 44 S. W. 846; State v. Railroad, 219 Mo. 156, 117 S. W. 1173; State v. Stike, 149' Mo.

— Ron. W. N. Evans, Judge. (1) The record must show the jurisdiction of the subject-matter. Barnes v. Plessner, 121 Mo. App. 679; Grant v. Stubblefield, 138 Mo. App. 555; Severn v. Railroad, 149 Mo. App. 631. (2) Plaintiff must show that justice has jurisdiction. Tremble v. Elkin, 88 Mo. App. 229. (3) Jurisdiction is determined from the entire record in the case. Sappington v. 'Lenz, 53 Mo. App. 44; Trimble v. Elkin, 88 Mo. App. 229; Smith v. Rock Co., 132 Mo. App. 297.

— lion. Frank Kelly, Judge. (1) The trial court erred in giving to the jury instruction numbered 1, requested by the plaintiffs. It is erroneous as not clearly defining the issues to be tried, and further erroneous because it undertakes to cover the whole case, but at the same time leaves from the consideration of the jury defendant’s defense, viz., the theory that McFarland did not agree to sell all the corn, bnt only snch as conld be delivered within sixty days.

— Hon. E. II. Dearing, Judge. (1) The question of variance between the allegations of the petitions and the exhibits filed cannot be raised by demurrer, because the court cannot, in any way, look to them or consider ■ them as a part of the pleadings. Hadwin v. Ins.

— Eon. W. S. G. Walker, Judge. (1) When appellant proved the death of David Gilmore, the denial of liability on the part of the respondent, and offered the certificate sued on, she established a prima-faeie ease which entitled her to a verdict. Mulroy v. Knights of Honor, 28 Mo. App. 463; Keily v. Knights of Father Matthew, .162 S. W. 682; Forse v. Knights of Honor, 41 Mo. App. 117; Chadwick v. Order Triple Alliance, 56 Mo. App. 474; McComas v. Life Ins.

— lion. Frank Kelly, Judge. The justice had jurisdiction of the subject-matter; and the plaintiff had a right to waive his claim for damages, thereby giving the justice jurisdiction. Buckner v. Armour, 1 Mo. 534; Best v. Best, 16 Mo. 530; Koester v. Lowenhardt, 160 S. W. 566; Wells v. Gouveia, 161 Mo. App. 563; Cook et al. v. Decker et al., 63 Mo. 328. A party may give jurisdiction to a justice of the peace by a voluntary renunciation of a part of his demand.

— Hon. Frank Kelly, Judge. (1) The act of the ticket agent in assaulting plaintiff was not within the scope of his employment, and did not pertain to his particular duties under that employment. Hartman v. Muehlebach, 64 Mo. App. 575; Collette v. Railway, 107 Mo. App. 711; Earning v. Railway, 157 Mo. 477; Drolshagen v. Railroad, 186 Mo. 258; Milton v. Railway, 193 Mo. 46.

<p>Appeal ’ from Pemiscot County Circuit Court. — Hon. Frank Kelly, Judge.</p>

— New. Charles D. Stewart, Judge. ■ If any person shall discover any dog or dogs in the act of killing, wounding, or chasing sheep in any portion of this State, or shall discover any dog or dogs under such circumstances as to satisfactorily show that such dog or dogs were, or have been recently engaged in killing or chasing sheep or other domestic animal, or animals, such person is authorized to immediately pursue and kill such dog or dogs; provided, however, that such dog…

Louis County Circuit Court.— Hon. G. A. Wurdemon, Judge. (1) When a contract is entered into between attorney and client, at tbe inception of tbe relationship, and proceedings are instituted, any subsequent contract for additional compensation to the attorney for services with respect to the subject-matter of such proceedings, is against public policy and void.

— Hon. Chas. D, Stewart, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. Blair v. Ridgley, 41 Mo. 182; Curry v. Cablis, 37 Mo. 130; Murphy v. Ramsey, 114 U. S. 55; Blanchard v. Stearns, 5 Mete. 298. (2) The averments that he was legally qualified to vote, all of which was known to defendants, and that they wilfully, maliciously and wrongfully refused to permit him to vote, are all legal conclusions and not warranted by facts stated.

-^-Hon. James D. Barnett, Judge. (1) The contract, in the case was complete, between the plaintiff and defendant, when signed, delivered and excepted, and the defendant cannot escape his liability for the agreed price and value of the goods purchased, by his refusal to receive them after they arrived at New Florence, on the 27th day of January, 1912. Price v. Atkinson, 117 Mo. App. 52.

— Hon. James D. Barnett, Judge. (1) All estates, whether by devise or by bequest, are considered vested rather than eonting’ent. The $1,000 legacy bequeathed to Eliza Sattmann under the fifth paragraph of the last will of Sophie Sattmann was an absolute gift which became vested in the said Eliza on death of the testatrix.- Lich v. Lich, 158 Mo. App. 418; Collier’s Will, 40 Mo. 287.

<p>Appeal from Audrain Circuit Court. — Ron. James D. Barnett, Judge.</p> <p>(1) ' The court erred in excluding plaintiffs’ exhibit number 7. Borgess Inc. Co. v. Veete, 142 Mo. 560; Anchor Milling Co. v. Walsh, 108 Mo. 277; Robinson v. Smith, 111 Mo. 205; Weels v. Hobson, 91 Mo. App. 379; G-ulurulator v. Rettalaclo, 86 Mo. App. 184. (2) The court erred in modifying plaintiffs’ instruction number 1 and refusing plaintiffs’ instruction numher 2. G-rether v. McCormick, 79 Mo. App. 329; Wetzell & Griffith v. Wagoner, 41 Mo. App. 509; Hovey & Brown v. Aaron, 133 Mo. App. 573; McCormick v. Obanion, 168 Mo. App. 606; Lane v. Cunningham, 171 Mo. App. 17. (3) The court erred in giving defendant’s instructions numbers 1, 2 and 4. (4) The verdict is against the evidence and the weight of the evidence.</p> <p>(1) There was no error committed on the part of the trial court in excluding plaintiffs ’ exhibit number 7. 17 Cye. 380; Daum v. Neumeister, 2 Mo. App. 597; Gregory v. Jones, 101 Mo. App. 270. (2) The trial court committed no error in modifying plaintiffs’ instruction number 1, and refusing plaintiffs’ instruction number 2. 28 Mo. App. 61; 162 Mo. App. 284; 164 Mo. App. 454; 168 Mo. App. 606. (3) The trial court committed no error in giving defendant’s instructions numbers 1, 2 and 4. Ramsey v. West, 31 Mo. App. 676; Real Estate Co. v. Real Estate Co., 144 Mo. App. 620; Crain v. Miles, 154 Mo. App. 338; Duncan v. Hills, 155 Mo. App. 702; 19 Cyc. 257. (4) The verdict is supported by the evidence and the weight of the evidence. State v. E'spenschied, 212 Mo. 215; State v. Fraught, 140 Mo. App. 369.</p>

- — Hon. Chas. D. Stewart, Judge. (1) The trial court -erred in sustaining defendant’s objection to the question put to plaintiff, on direct examination, as to whether he was acquainted with the -price of new engines, such as this engine, at Ewing, Missouri, in 1910.

— Ron. James D. Barnett, Judge. (1) When a grantee takes a deed containing a recital that the land is subject to a mortgage which the grantee assumes or agrees to pay, he thereby becomes personally liable to the mortgagee for the mortgage debt. Crane v. Stinde, 156 Mo. 267; Helm v. Yogel, 69 Mo. 535; Steele v. Johnson, 96 Mo. App. 157; Cirardi v. Christe, 148: Mo. App. 91; Nelson v. Brown, 140- Mo. 580.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Defendant’s instruction of nonsuit should have been given, because (a) The evidence established, without conflict, Cripps and plaintiff were fellow-servants. (b) The dual capacity doctrine is established in Missouri. Garland v. Railroad, 85 Mo. App. 579; Robinson v. Railroad, 133 Mo.

<p>Appeal from Audrain Circuit Court. — Horn. James D. Barnett, Judge.</p> <p>(1) This is a proceeding in in invitum and there should be no departure from legal requirements. Bose y. Trestrail, 62 Mo. App. 352; West v. Porter, 89 Mo. App. 153; Schibel v. Merrill, 185 Mo. 550; Construction Co. v. Coal Co., 205 Mo. 81. (2) There was no estimate of the ■ cost of the work as required by the statute. B. S. 1899, ■ sec. 5858, paragraph 8; City of Boonyille y. Bogers, 125 Mo. App. 142; Wheeler v. Popular Bluff, 149 Mo. 36; City of Independence v. Briggs, 58 Mo. App. 323; City of Kirksville v. Coleman, 103 Mo. App. 215; City of De Sota v. Showman, 100 Mo. App. 323; Erie v. Brady, 150 Pa. 462. (3) Time was the essence of the contract. The work was not completed within the contract time, on or before January 1, 1909. An ordinance to extend the time, passed in February, 1909, after the expiration of the contract time, was of no effect, and the tax bills are void. Neill v. Gater, 152 Mo. 585; Hand v. Rockliff, 192 Mo. 312; Hernán v. Gilliam, 171 Mo. 258; Schibel v. Merrill, 185 Mo. 550; Paving Oo. v. Munn, 185 Mo. 569; Montague v. Kalmeyer & Co., 138 Mo. App. 288; Construction Co. v. Coai Co., 205 Mo. 49. (4) The original tax bill plaintiff asked to be can-celled was void, because it was a joint tax bill against the three lots. R. S. Mo. 1909, sec. 5252. On defendant’s answer voluntarily withdrawing and canceling said tax bill, plaintiff was entitled to a decree. (5) The tax bills were not legally issued and were void. All special tax bills shall be issued by the city. R. S. Mo. 1909, sec. 9254. They shall be “signed by the mayor and attested by the city clerk with the seal of the city attached.” R. S. 1909, sec. 9257. (6) Plaintiff was not personally liable for the special taxes. It was not a personal indebtedness nor a mutual indebtedness. The tax bills on which defendant recovered judgment were not in existence “at the commencement of the plaintiff’s action.” Hence not subject of counterclaim. R. S. Mo. 1909, sec. 1807. The tax bills can be enforced only by the statutory action to subject the specific property to the payment of the tax. This statutory remedy which is an action in rem, is the exclusive remedy. The court erred in entering judgment on defendant’s counterclaim. City of Clinton v. Henry Co., 115 Mo. 557; Seibert v. Tiffany, 8 Mo. App. 33. (7) The court erred in allowing eight per cent interest, or any interest, prior to date of judgment. R S. Mo. 1909, sec. 9254. As the council made no provision for interest and the tax bills were not issued for interest, the court erred in adjudging interest. And especially from date of tax bill when even the council could not have required interest until 30 days after April 12, 1911. R S. 1909, sec. 9254, paragraph 10. (8) On the facts plaintiff is entitled to a decree. This being an action in equity, the appellate court will review the entire evidence regardless of the opinion of the trial court. Where material was not used .or the work done as required by the contract, the collection of the tax bills will not be enforced. Schibel v. Merrill, 185 Mo. 550; Coulter v. Construction Co., 131 Mo. App. 235; Cole v. Skrainka, 37 Mo. App. 427, 105 Mo. 303; Herman v. Gerardi, 96 Mo. App. 231; Traders Bank v. Payne, 31 Mo. App. 512; Hernán v. Franklin, 99 Mo. App. 346; McGatk v. St. Louis, 215 Mo. 207.</p> <p>(1) The preliminary resolution was sufficient. By reference the plans and specifications were incorporated in the resolution. They were on file at the clerk’s office. Bridewell v. Cockrell, 132 Mo. App. 203. (2) The estimate is sufficient. Gratz v. Kirkwood, 165 Mo. App. 209; Boonville v. Stephens, 238 Mo. 339, 355. (3) The work was completed in contract time. The work was actually all done before January 1, 1909, but .weather conditions ruined portions of the curbing and the work thereafter done was merely repair. However, days lost by bad weather were by the ordinance for the work, number 330, to be added to the time. As the work of curbing could not be done until April, 1909, on account of freezing, the time was automatically extended. If the curbing had been stopped at the beginning of freezing weather the contractor would have had the right to postpone the completion until warm weather. However, he attempted to continue with the work and when the freezing weather ruined part of it he was entitled to wait until warm weather to conclude. Pentice v. Schmidt, 202 Mo. 703. The ordinance exhibit 8 is not an attempt to extend the time. The bad weather had already extended it. The ordinance simply recognized this fact and postponed acceptance and issuance of the tax bills until the contractor had remedied the defects caused by bad weather. (4) The tax bills set out in the defendant’s answer were legally issued. It was within the power of the person who as mayor issued the original tax bills, to amend the same to conform to the .requirements of the statute, after he ceased to hold the office and no other person could sign them. Kiley v. Oranor, 51 Mo. 541; G-albreath v. Newton, 45 Mo. App. 312; Riley v. Stewart, 50 Mo. App. 494; Morley v. Weakley, 86 Mo. 450; Stadler, Admx. v. Roth and Meyer, 59 Mo. 400. (5) The tax bills upon which the respondent recovered judgment were a proper subject for a counterclaim in this action. Page and Jones “Taxation and Assessment,” sec. 1445, page 2102; Kendig v. Knight, 14 N. W. 78; Smith v. Des Moines, 76 N. W. 836-; Henman v. McNamara, 77 Mo. App. 1; The City of Kansas City to the use of Coates v. Ridenour, et al., 84 Mo. 253; Swope v. Weller, 119 Mo. 556. (a) The cause set out in the counterclaim was in existence at the time of the commencement of the action. Cases cited under point 4. (b) The counterclaim in the case at bar comes under the first division of section 1807 of R. S. of Mo. 1909,-“cause of action arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.” A counterclaim coming within this clause need not exist at the commencement of the action. California Creameries Co., Limited, v. Pacific Sheet Metal Works, 164 Fed. 978; Smith v. French, 13 N. C. 1; 53 S. E. 435. (6) The .court properly allowed interest at eight per cent on the tax bills. (7) The contractor cannot be held to a literal compliance with the terms of the contract; substantial compliance is all that is required. Cole v. Skrainka, 105 Mo. 309; Sheehan v. Owen, 82 M.o. 458; Meyers v. Wood, 173 Mo. App. 577; Trimble v. Stewart, 168 Mo. App. 276; Steffen v. Fox, 124 Mo. App. 635; City of St. Louis v. Rueckling, 232 Mo. 23.'</p>

— Hon. Charles D. Stewart, Judge. This suit is based upon .section 772, R. S. 1909. Said section cannot apply to the case because the evidence of all parties shows that the stock was not running at large, but was kept in- an enclosure fenced by all parties to the suit, with a sort of partition fence between the lands of plaintiff and defendant, which was maintained by defendant alone, on defendant’s land. Section 772, R. S. 1909; Jackson v. Fulton, 87 Mo.

<p>Appeal from Knox Circuit Court. — Ho». Charles D. Stewart, Judge.</p>

Louis County Circuit Court. — Hon. Q. A. Wurdeman, Judge. (1) The court should have peremptorily instructed the jury to render a verdict in favor of the appellant: (a) No actionable negligence was proved against the appellant. Pope v. Railroad, 242 Mo. 232; Kinlen v. Railroad, 216 Mo. 145 ; Boyd v. Railroad, 105' Mo. 371; Moody v. Railroad, 68 Mo. 470; Roenfeldt v. Railroad, 180 Mo. 567. (b) The deceased was guilty of contributory negligence as a matter of law.

Louis County Circuit Court. — Eon. G. A. Wurdeman, Judge. (1) Where the evidence introduced by plaintiff shows clearly that he was guilty of negligence which contributes to his injury, he cannot recover, and a demurrer to the evidence ought to be sustained. Hudson v. Railroad, 101 Mo. 13; Sherman v. Transit Co., 103 Mo.

— Eon. James D. Barnett, Judge. (1) The title tendered the plaintiff by the defendant by the deed was not a marketable title. Birge v. Bock, 44 Mo. App. 69'; Thompson v. Dickerson, 68 Mo. App. 535 ; Simmons v. Mcllroy, 73 Am. State 677; Simon v. Vandeveer, 63 Am. State 688; Moore v. Williams, 115 N. Y. 586; Yol. 26 Cyc., page 808 ; Zurke v. Kuehn, 113 Wis. 421.

Louis City Circuit Court. — Hon. Thomas C. Hennmgs, Judge. (1) The court erred in overruling’ this defendant’s demurrers to the evidence.

<p>1. ELECTRICITY: Death of Lineman: Defective Insulation: Sufficiency of Evidence. In an action for the death of a lineman, caused by his coming in contact with a wire charged with electricity maintained by defendant, evidence held sufficient to establish a specific averment in the petition, that the insulation on the wire was worn and rotten, and hence the case was one for the jury.</p> <p>2. NEGLIGENCE: Pleading: Specific Negligence. Where the petition ¡in a negligence case contains both a general and a specific charge of negligence, ‘the former is entirely superseded by the latter.</p> <p>3. -: -: Res Ipsa Loquitur: Effect of Pleading Specific Negligence: Instructions. Where the petition in a negligence case contains a general averment of negligence, under which the doctrine of res ipsa loquitur would apply, and also alleges specific acts of negligence, such specific allegations render the doctrine of res ipsa loquitur inapplicable, and the instructions must require a finding on the specific acts alleged.</p> <p>4. -: -: -: -: -. In an action for the death of a lineman, caused by his coming in contact with a wire charged with electricity maintained by defendant, the petition, after alleging negligence generally, also alleged' that the insulation on the wire was worn and rotten. The court charged the jury, at the instance of plaintiff, that if decedent was killed as a direct result of a shock from such wire, that fact was conclusive proof of defective insulation, unless the jury found that the insulation was as safe as it could be reasonably made, that the utmost care had been used to keep it so insulated, and that, while the insulation was in a safe condition, the climbing spur strapped to decedent’s foot came in contact with the insulation and punctured it, through no fault of defendant and through no defect in the insulation. Held, that the instruction, was erroneous, for the reason that it failed to submit the specific acts of negligence pleaded, and because it invoked a presumption of negligence, as though the doctrine of res ipsa loquitur were applicable, when the doctrine could not be availed of because specific negligence was pleaded.</p>

. — Eon. James D. Barnett, Judge. (1) .Defendant’s demurrers should have been sustained because there is a positive absence of any proof whatever showing the circumstances attending the accident.

<p>1. HUSBAND AND WIFE: Occupancy of Real Estate: Liability of Wife for Rent. Where the use of certain real estate was bequeathed to a married woman, by the will of her father, for ,one year after his death, together with a proportionate part of the proceeds of a sale then to be made by the executor, and she and her husband held over for a further period during litigation, in which she unsuccessfully attempted to enforce a claim to the fee title to the land, she, and not her husband, was liable for the use and occupation, which claim was properly allowed as a set-off against her share of the proceeds.</p> <p>2. PARTIES: Misjoinder: Waiver. Where plaintiff elected to sue the executor of her father’s will for her share of the proceeds of land sold by the executor, who was not a distributee, and the distributees were made parties defendant and they and the executor set up an offset for the- reasonable value of the land while it was occupied by plaintiff before the sale, plaintiff was in no position to thereafter object to the administrator as a party defendant.</p> <p>3. APPELLATE PRACTICE: Review: Matters not Embodied in Record. Whether a bond given in prior litigation was a supersedeas or only a bond for costs, could not be determined, cn a subsequent appeal, where the bond was not preserved in the record presented on such subsequent appeal.</p>

— Ron. James D. Barnett, Judge. (1) It is the duty of a telegraph company which receives a message for transmission directed to an individual at one of its own stations to deliver that message to the person to whom it is addressed with reasonable diligence, and in good faith. That is a part of its contract implied by taking the message and receiving* payment therefor. Hughlett v. Western Union Telegraph Co., 172 Mo. App. 272.

Appeal-from St. Louis County Circuit Court. — Row. John W. McElhinney, Judge. (1) Trespass' quare clamsam fregit is a form of action which lies to recover damages for injury to the realty, consequent upon entry without right upon the plaintiff’s land. Bonvier’s Law Dictionary, page 610. The common law affords no civil remedy against a person having a right, who enters forcibly bnt the injured party must appeal to the statutory action of forcible entry and detainer.

Louis City Circuit Court. — Hon. William T. Jones, Judge. (1) The court erred, in giving, at plaintiff’s request, an instruction on contributory negligence as follows : ‘ ‘ Tbe court instructs you that on tbe pleadings and evidence in this case plaintiff was not guilty of any negligence that contributed to or caused any of tbe injuries for which be sues.” There was no plea of contributory negligence in this case.

<p>Appeal from Montgomery Circuit Court. — Hon. James D. Barnett, Judge.</p> <p>(1) Instructions should he confined to the issues presented by the pleadings and the evidence. Home Bank v. Towson, 64 Mo. App. 97; "Waddingham v. Hughlett, 92 Mo. 528; D. Donata v. Morrison, 160 Mo. 581; Glass v. Gelvin, 80 Mo. 297; Ely v. Railroad, 77 Mo. 34; Kelly v. Stewart, 93 Mo. App. 47; Kingman & Co. v. Buggy Co., 150 Mo. 282; Rothschilds v. Fernsforf, 21 Mo. App. 318; Mansur v. Botts, 80 Mo. 651; Wright v. Fonda, 44 Mo. App. 634; Whitlock v. Appleby, 49 Mo. App. 295; Altman & Taylor Co. v. Smith, 52 Mo. App'. 351; Whipple v. Building” & Loan Assn., 55 Mo. 554; Matney v. Railroad, 75 Mo. App. 233. (2) Under the terms of the contract pleaded, plaintiff should recover, if anything, the full amount agreed upon. Weisels Gerhardt & Co. v. Pemberty Investment Co., 150 Mo. App. 626; Witty et al. v. Saling et al„ 171 Mo. App. 574; Cole v. Armour, 154 Mo. 333.</p>

Circuit Court. — Hon. James D. Barnett, Judge. (1) The court erred in giving instruction number 4 of its own motion — (a) Because under the pleadings there could not be a recovery in favor of plaintiff on the cause of action set out in count 1 of plaintiff’s petition, and at the same time a recovery in favor of defendant on its counterclaim. Johnson v. LaBarge, 46 Mo. App- 433. (h) Plaintiff recovered on a special contract, not on a quantum meruit.

Louis County Circuit Court. — Hon. G- A. Wurdemcm, Judge. (1) The State must prove each and every element of the alleged abandonment by defendant of his children, including his criminal intent to abandon his children, and a refusal to provide for them. State v. Greenup, 30 Mo. App. 299; State v. Brinkmann, 40 Mo. App. 284; State v. Satchwell, 68 Mo. App. 39; State v. Doyle, 68 Mo. App. 219; State v. Linck, 68 Mo. pp. 161.

<p>Prohibition. Original Proceeding.</p>

<p>Appeal from Buchanan. Circuit Court. — Hon. Wm. H. Haynes, Judge.</p>

<p>Appeal from Lina Circuit Court. — Eon. Fred Lamb, Judge.'</p>

<p>1. BILL IN EQUITY: Remedy at Law: Cause of Action. If at petition in equity discloses that the plaintiff has an adequate remedy at law, no cause of action is stated in equity.</p> <p>2. -: Judgment: Satisfaction: Fraud: Legal Remedies. ■ -A petition in equity was founded upon allegations -that the plaintiff had entered satisfaction of a judgment obtained against defendants therein through the fraud of defendants. It was held that plaintiff had adequate legal remedies by motion in the same case to cancel the satisfaction; or, by an action on the judgment and the petition in equity should be dismissed.</p> <p>3. -: Motion: Audita Querela: Trial by Jury. A motion in the same case to cancel satisfaction of a judgment obtained by fraud has practically superseded the old writ audita querela. The motion, if presenting, matter for contested facts, should he tried with a jury.</p> <p>i. -: Audita Querela: A Legal Remedy. If an independent action through audita querela be resorted to, to set aside an entry of satisfaction of a judgment as having been procured by fraud, it is a legal and not an equitable remedy.</p> <p>5. -: Improper Joinder: -Waiver. If two counts in equity to cancel an entry of satisfaction of a judgment on account of fraud be joined with a count at law to recover the amount of the judgment and the defendants proceed to trial before the court (waiving a jury) on all three counts without objection, they waive the irregularity.</p> <p>6. -: Action on Judgment: Fraud: Practice: Pleading. Where an entry of satisfaction of a judgment has been pro: cured by fraud, and the plaintiff desires to pursue the course of bringing an action on the judgment, he may bring such action, when the defendant should plead the satisfaction as matter of defense, and then plaintiff should set up the fraud in avoidance, by reply.</p>

— Hon. Wm. D. Busk, Judge. (1) The Supreme Court has superintending control over the Kansas City Court of Appeals where it has acted heyond or in excess of its power and jurisdiction. State ex rel. v. Broaddus, 245 Mo. 123. (2) An appellate court in this State is limited to the errors assigned in motion for new trial filed within the time allowed by law and an attempt of an appellate court to investigate a question suggested otherwise is beyond its power and jurisdiction.