Volume 187 — Missouri Appeal Reports

<p>Appeal from Buchanan Circuit Court. — No». Wm. D. Rusk, Judge.</p>

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

— Mon. G. M. Mayer, Judge. (1) The court committed error in permitting plaintiff to sue on a contract of purchase alleged in the petition and to recover under said contract orally modified, which modification was not declared upon or alleged in the petition, the contract being required to he in writing under the Statute of Frauds. Goller v. Hensler, 161 S. W. 584; Wilt v. Hammond, 165 S-. W. 362.

— Eon. G. A. Galvird, Judge. (1) While the ordinary surety or guarantor is the favorite of the law, and his contract is construed liberally in Ms favor, yet corporations whose business it is to issue contracts of guaranty and indemnity are to be classed as insurers, and their contracts must be interpreted by tbe principles and rules applicable to policies of insurance. Eoark v. Trust & Safe Deposit Co., 130 Mo.

. Appeal from Benton Circuit Court.- — Eon. G. A. ■ ■ Galvird, Judge. (1) The question of agency is one of law and under the law Moore was the agent of Robinson. Engleman v. Ruse, 28 N. W. 149; Goodale v. Middaugh, 46 Pac. 14; Cooper v. Headley, 12 N. J. Eq. 48; May v. Insurance Company, 72 Mo. App. 286. (2) Moore her ing in possession of the security, the Trust- Company had a right to pay him the money. Cummings v. Herd, 49 Mo.

— Ho». B. G. Thurman, Judge. (1) Under the facts- set up in the answer and which defendant offered to prove the shipment was interstate and the court erred in refusing to permit, defendant to show this. Railroad v. Board of Railway Commissioners, 106' Fed. 363; Hanley' v. Railroad, 187 U. S. 617; United States v. Railroad, 152 Fed. 269. (2) The shipment being interstate, the liability was controlled by the provisions of the Interstate Commerce Act and its amendments.

<p>1. MONEY HAD AND RECEIVED: Action for. Where a hank receives money with notice that it-belongs to another, and fails to turn it over to such other on demand, the one entitled thereto may maintain an action therefor as for money had and received.</p> <p>2. -: Notice: Jury Question. Whether the money was received with notice is a question for the jury, and their decision thereon is final where there is substantial evidence to support the submission of such question to the jury.</p> <p>3. TRIAL PRACTICE: Amendment. Where the petition alleged facts which necessarily implied that the bank received the money with notice, an amendment alleging that fact in express terms was not a change of the cause of action and was, therefore, permissible.</p> <p>4. INSTRUCTIONS. An instruction telling the jury that if the bank knew, “or had knowledge of such facts that it could have known” of the true ownership of the money was not erroneous. This was not telling the jury that it was the duty of the bank to make inquiries upon receiving the money. But if it does do this, it was a harmless error in this case, since all the evidence shows that the bank did know before it received the money.</p> <p>5. -: Modification. A complaint of error in the modification of an instruction will not be noticed where the record does not . disclose in what way the instruction is modified.</p>

<p>Appeal from Pettis Circuit Court. — Eon. E. B. Chain, Judge.</p>

<p>1. CRIMINAL LAW: Misdemeanor: Execution: Void Law. A defendant convicted of a misdemeanor and punishment assessed by fine of $600, may have the execution against his property to enforce the fine quashed on his motion to that effect, on the ground that the law creating the offense was unconstitutional.</p> <p>2.--: Life, Liberty and Property: Protection. Life, liberty and property are equally under the protection of the courts in criminal proceedings.</p>

<p>Appeal from Boone Circuit Court. — Hon. D. H. Harris, Judge.</p>

<p>Appeal from. Calloway Circuit Court. — Eon. D. E. Earris, Judge.</p>

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

<p>Appeal from Jackson Circuit Court. — Hon. Frank G. Johnson, Judge.</p>

<p>Appeal from Bates Circuit Court. — Hon. G. A. Galvird, Judge.</p> <p>(1) Though, the representations are false and material and relied upon by the vendee, he is still not relieved of the duty to act prudently and investigate. Foundry Co. v. Heskett, 125 Mo. App. 532Bradford v. Wight, 145 Mo. App. 623; Lewis v. Land Co., 124 Mo. 687; Davis v. Insurance Co., 81 Mo. App. 266. (2) Neither law nor' equity will afford relief on the ground of false representations to one with equal means of information, who is négligent in the use thereof. Hines v. Royce, 127 Mo. App. 722; Davis v. Insurance Co., 81 Mo. App. 266; Brauckman v. Leigh-ton, 60 Mo. App. 38; Langdon v. Green, 49 Mo. 368; Dunn v. White, 63 Mo. 181. (3) The representations alleged to have been made by the defendant’s agent were outside the scope of his authority. Brauckman v. Leighton, 60 Mo. App. 38; Crawford v. Bank, 67 Mo. App. 39.</p> <p>(1) Where, to discover the wrong, investigation is necessary, a party is not hound to make the investigation. but may rely upon the representation made to him by the other party. Judd v. Walker, 215 Mo. 312; Brolaski v. Carr, 127 Mo. App. 286; Adams v. Barber, 157 Mo. App. 396 ; Neuman v. Friedman, 156 Mo. App. 150-151; Davis v. Forman, 229 Mo. 48-49; Cotrill v. Krum, 100 Mo. 397; Dyer v. Cowden, 154 S. W. 159; Stonemets v. Head, 248 Mo. 263. (2) A false statement made as a positive assertion constitutes fraud whether the maker knows of its falsity or not. Serrano v. Commission Co., 117 Mo. App. 198. (3) Any fraud perpetrated by the agerd on a third party in the course of his employment, a»id for the benefit of the principal, must be imputed to the principal, whether or not the latter had actual knowledge of it. The liability of the principal for his agent’s tort is not based upon any presumed authority in the agent to do the act, but upon public policy. Darks v. Grocer Co., 146 Mo. App'. 268'.</p>

— Hon. A. B. Davis, Judge. (1) The demurrer should have been sustained as the promise, pleaded, was a mere voluntary undertaking made without consideration, and was not binding on either party. Laclede Con. Co. v. Tudor I. W-, 169 Mo. 137. (2) An agreement by a creditor to extend the time of payment must be supported by a sufficient consideration.

— Hon. D. H. Harris, Judge. (1) A contract entered into by a mutual mistake of fact should be reformed in equity before it is enforced at law. Miller v. Railroad, 162 Mo. 424; Moran Bolt and Nut Mfg. Co. v. St. Louis Car Co., 210 Mo. 715; Turner v. Railroad, 114 Mo. App. 539; Méak v. ITurst, 223 Mo. 688, 696. (2) Respondent was bound by the terms of the written contract introduced in evidence. Johnson v. Life Ins. Co., 93 Mo. App. 580, 590; Phelps, Jr. v. Jones, 141 Mo.

— Hon. W. 0. Thomas, Judge. (1) The charter provision under which this contract was given and executed by the plaintiff in error created a new obligation, a new right, and it provided a specific method of enforcing the rights created. When this is done, the remedy provided for enforcing the right in the act should be followed to the exclusion of' all other remedies.

— Hon. W. 0. Thomas, Judge. (1) When a contract becomes void because of the acts of one of the parties and without knowledge of the other party it remains void and cannot be reinstated without the other party to the contract consenting to such reinstatement. Hoover v. Insurance Co., 93 M[o. App. Ill; Imperial Ins. Co. v. Coos County, 151 U. S. 463; German Ins. Co. v. Russell, 65 Kan. 373, 69 Pac. 345; Moore v. Ins. Co., 62 N. H. 240; Kyte v. Ins.

— Hon. E. E. Borterfield, Judge. (1) The legal wrong denominated “conversion” is any unauthorized act of dominion or ownership exercised by one person over personal property belonging to another, (a) A demand and refusal is not a conversion in itself, but simply evidentiary of one.

— Hon. D. H. Harris, Judge. (1) The demurrer admits that appellant was legally elected to the office of alderman from the first ward. In this State a person derives his title to an office by his election and not by his commission, and if he holds and exercises the functions of an office without having been legally elected, it is an unlawful holding, and he may be ousted at the instance of the State. State ex rel. Horstman v. County Court, 25 Mo.

— Eon. Jos. A. Guthrie, Judge. (1) Under the Missouri construction of the common law there was a duty upon those operating the engine to be on the lookout for deceased. Dutcher v. Railroad, 241 Mo. 137; Murphy v. Railroad, 22-8 Mo. 56; Ahnefeld v. Railroad, 212 Mo. 280; Sites v. Railroad, 197 Mo. 711; Holden v. Railroad, 177 Mo. 456; Kochenbrinck v. Railroad, 172 Mo. 678; Williams v. Railroad, 139 Mo. App. 481; Smith v. Railroad, 129 Mo. App. 413.

— Hon. D. H. Harris, Judge. (1) The mere fact that defendant was arrested in another State was not sufficient of itself to be the basis of an instruction on flight. State v. Evans, 138 Mo. 116; State v. Hopper, 142 Mo. 478.- (2) There must he sufficient to justify an inference of consciousness of guilt from the conduct of the accused before an instruction on flight is proper.

— Hon. D. H. Harris, Judge. (1) The court erred in finding for plaintiff, as the verdict is against the law and weight of the evidence as applied to defendant’s second defense (failure to give timely notice). Aetna Life Insurance Co. v. Fitzgerald, 165 Ind. 317; Craig v. United States Health & Accident Insurance Co., 80 South Carolina, 151; Meech v. Nat. Ac. Soe., 63 N. Y. Sup. 1008.

— Hon. Samuel Davis, Special Judge. (1) A contract to assume and agree to pay the debt of another when'made with the creditor is within the Statute of Frauds, and unenforceable. Bambrick v. Bambrick, 157 Mo. 423; Nunn v. Carroll, 83 Mo. App. 135; Parsons v. Kilso, 141 Mo. App. 369; Ilaeberle v. O’Day, 61 Mo. App, 390. (2) The verdict is against the evidence. The sufficiency of the evidence is challenged by this ground stated in a motion for a new trial.

— Hon. D. E. Bird, Judge. (1) Appellant had a right to connect with the private sewer which ran over private ground, and the city cannot defend its wilful tortious acts by 'pleading that appellant is a trespasser upon property of a third person, a stranger to the city. Reed v. Price, 30 Mo. 442; Levy v. McClintock, 141 Mo. App. 600; Barberick v. Anderson, 45 Mo. App. 272.

— Hon. D. H. Harris, Judge. (1) The shipments having been from Fulton, Missouri to Chicago, Illinois, were interstate commerce and governed by tbe Federal law: Hamilton v. Railroad, 177 Mo. App. 145. (2) The court erred in not bolding that plaintiff’s failure to give written notice within five days as provided by tbe shipping contracts, barred recovery. Hamilton v. Railroad, 177 Mo. App. 145. (3) Tbe court erred in .giving plaintiffs instructions on its own motion.

<p>Appeal from Schuyler Circuit Court. — Horn.- Nat M. Shelton, Judge.</p>

<p>Error to Jackson Circuit Court. — Eon. 0. A. Lucas, Judge.</p>

<p>Appeal from Jackson Circuit Court. — Ho». O. A. Lucas, Judge.</p>

<p>Appeal from Gasconade Circuit Court — Hon. R. A. Bretier, Judge.</p>

<p>Appeal from Boone Circuit Court — Hon. D. H. Harris, Judge.</p>

<p>Appeal from Randolph. Circuit Court. — Hon. A. H. Waller, Judge.</p>

Appeal Jackson Circuit Court — Hon. O. A. Lucas, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence. Because, although there were mounds of ice in the sidewalk, according to plaintiff’s testimony, there is no evidence that plaintiff fell on such mounds or ridges. Tobin v. Waterloo, 131 la. 75,107 N. W. 1031.

'Appeal from Jackson Circuit Court — Hon Frank G. Johnson, Judge. (1) That the purported judgment was taken during the absence of the defendant; taken two days after answer day and upon timely motions having been filed, supported by affidavits which admitted facts, the court abused its discretion in refusing to set aside said default. Sigaloff v. Breweries Co., 148 Mo.

— Hon. D. H. Harris, Judge. (1) Plaintiff failed to prove that the goods ordered by King Brothers (the subcontractor) were used by the subcontractor in appellant Smith’s apartment houses, and therefore, the court should have directed a verdict for the appellant Smith. Current River Lumber Co. v. Cravens, 54 Mo.

— Eon. 0. A. . Lucas, Judge. (1) A tenant cannot maintain against a landlord an action in tort for personal injuries due to Ms omission to repair premises which have passed into the possession and control of the tenant, even if the landlord has agreed to make the repairs. Glenn v. Hill, 210 Mo. 291; Korach v. Loeffle, 168 Mo. App. 414; Rushes v. Ginsberg, 99 App. Div. N. Y. 417, 91 N. Y. S. 216; Reams v. Taylor, Utah, 87 Pac. 1089, 31 Utah, 288; Cromwell v. Allen, 151 Ills.

— Hon. E. E. Porterfield, Judge. The court erred in granting plaintiff a new trial on grounds that the verdict is against the weight of the evidence in that if plaintiff had a right to recover any amount, it should have been in excess of the amount recovered. The verdict was substantial in amount and was not in such form or amount as to shock the understanding, or convince the court that it was the result of prejudice and passion.

C. Southern, Judge. (1) A judgment may be collaterally impeached for fraud and collusion. Under the circumstances here presented this court has the right to adjudicate the equities of the cause upon the merits. Hamilton v. McLean, 139 Mo. 678; Bates v. Hamilton, 144 Mo. 1. (2) An officer or director of a corporation who purchases its property at execution sale becomes a trustee for the benefit of the parties in interest.

— No». E. E. Porterfield, Judge. (1) By dismissing this action as to the defendant Majestic -Theatre Company, for whose alleged negligence the plaintiff is seeking to hold the city responsible, the plaintiff forfeited his right to further prosecute this suit against Kansas City, and the court properly directed a verdict for the city. Schweickhardt v. St. Louis, 2 Mo.

— Hon. D. E. Bird, Judge. (1) It is our contention that under no circumstances can an administrator be required to give security for costs in actions instituted by him as administrator. Blondeau v. Sheridan, 81 Mo. 556; Ross, Admr., v. Alliman, 60 Mo. 269; State to the Use of Hunter, Admr., v. Maulsby, 53 Mo. 500; Ranney, Admr., v. Thomas,.45 Mo. Ill; Laughlin et al. v. McDonald, 1 Mo. 684; White v. McFarland, 148 Mo.

— Ron. 0. A. Lucas, Judge. The court erred in not giving the peremptory instruction asked by defendant at the conclusion of all the .evidence in the case. G-ulath v. St. Louis, 179 Mo. 38; Brash v. St. Louis, 161 Mo. 433, 438. (1) Under the law and the evidence, the' court properly submitted the case to the jury. It could not do otherwise. Haney v. City of Kansas, 94 Mo. 334, 337; Woods v. City of Kansas, 58 Mo. App. 273, 280'; Brash v. St. Louis, 161 Mo. 433, 438-440.

Jackson Circuit Court. — Eon. D. E. Bird, Judge. (1) A contractor or materialman is entitled to a lien -where the contract is made with the husband, when the real estate is owned by husband and wife. Held: he had also the further right, under the circumstances as disclosed by the testimony in the instant case, to subject the estate to a mechanic’s lien. Hall v. Stephens, 65 Mo. 670.

— Hon. Joseph D. Perkins, Judge. (1) The demurrer requested by defendants should have been given because plaintiff did not prove any negligence of defendants entitling him to have his case submitted to the jury. (2) The rule of res ipsa loquitur does not apply to an action by a servant against the master, and there is no showing by plaintiff of anything except that while he was at work the extension came off and scaffold fell. Hamilton v. Railroad, 123 Mo.

— Hon. Joseph D. Perkins, Judge. (1) It is not the province of the trial court, after plaintiff has made out a prima-facie case, to sustain an instruction to the jury to find for defendant offered at the close of all the testimony on the ground that defendant’s proof is undisputed and unimpeaehed, and is sufficient to overcome plaintiff’s prima-facie case, etc. Gannon v. Gas Co., 145 Mo. 502; Ward v. Steffen, 88 Mo. App. 576; O’Meara v. St. Louis Transit Co., 102 Mo.

— Hon. Guy D. Kirby, Judge. (1) Negligence is not a fact which is subject to direct proof, but an inference from the facts put in evidence. Baird v. Railroad, 146 Mo. 280; Adams v. Railroad, 160 S. W. 38. (2) The court cannot make inferences of fact in favor of defendant to overthrow either presumptions of law or inferences of fact in favor of plaintiff. Frick v. Railroad, 75 Mo. 601; Buesching v. Gas Light Co., 73 Mo. 230; Franke v. St. Louis, 110 Mo. 525.

<p>1. TRESPASS: Cutting Timber: Decree. Action for trespass committed in cutting and carrying away certain growing timber. Petition, testimony and. record examined and relevant portion of decree set out.</p> <p>2. -: Consent Decree: Examination of. In an action for trespass committed by cutting and carrying away certain timber, a consent decree is examined and considered to show that plaintiff had a present right in the growing timber in question and that he could maintain the action of trespass against defendant, a stranger, who cut and carried away part thereof. [ROBERTSON, P. J., dissenting.]</p>

— Ron L. B. Woodside, Judge. Where, as in this case, the defendant was using the creek for floating ties, the presumption is that it was making a rightful and proper use of the creek. Chandler v. Transit Co., 213 Mo. 244.

<p>1. COURTS: Title to Real Estate Involved: Jurisdiction of Appeal In Supreme Court. Where a judgment appealed from involves the question of the title to real estate the Supreme Court and not the Court of Appeals has jurisdiction.</p> <p>2. -: -: -. Where an appeal is taken from a judgment dismissing plaintiff’s bill, the object of which is to have the court declare the defendant a trustee of plaintiff as to certain land, the legal title of which is in defendant, and to vest the legal title thereof in plaintiff, the title to real estate is involved and the Supreme Court has jurisdiction of the appeal.</p>

— Hon. Joseph D. Perkins, Judge. (1) The resolution of -the city council declaring the improvement of the street necessary is insufficient to give the city authority to order the street improved and to let a contract therefor.

— Eon. David E. Blair, Judge. (1) Plaintiff’s principal instruction should not to find that plaintiff was in the actual posséssion, or have been given, because it does not require the jury entitled to the immediate possession, of the property in question at the time of the alleged conversion. 38 Cyc. 2044; Schwald v. Brunjes, 139 Mo. App. 516; Bank v. Ligevele Co., 152 Mo. 145; Summers v. Baker, 158 Mo. App. 666.

— Hon. Carr McNatt, Judge. (1) When the application for insurance warrants matters upon which the policy is based to be facts, and it is found that they are not facts, the company may rescind the policy and avoid the loss. Jacobs v. Omaha Life Ins. Co., 146 Mo. 523; Whitmore v. Supreme Lodge K. & L., 100 Mo. 36; Johnson v. Town Mutual Ins. Co., 120 Mo. App. 80; Jenkins v. Covenant Mut. .Co., 171 Mo. 375; Van Cleve v. Union Casualty Co., 82 Mo. 668.

— Hon. J. P. Foard, Judge. (1) In an action founded upon an alleged violation o.f Section 7828, R. S. 1900, commonly referred to as the “Factory Act,” the burden is upon a plaintiff to both allege and prove the following facts: (a) That the place in which plaintiff was injured was a “manufacturing, mechanical, or other establishment.” (b) That the belting, shafting, gearing, or machinery by which the plaintiff was injured was so placed as to be dangerous to plaintiff while…

— lion. J. P. Foard, Judge. (1) The petition filed in the probate court did not state facts sufficient to give said court jurisdiction to appoint A. W. Greer, the public administrator of said county, guardian of the estate of Edith Thomas, and the order made by said court appointing’ said guardian is void, hence said guardian had no authority to maintain this suit. R. S. 1909, sec. 302; Nelson v. Troll, 173 Mo.

— Hon. W. 8. G. Walker, Judge. (1) There is such a fatal variance between the allegation of the petition, that there was org-anized “a pretended and fictitious corporation” and the plaintiff’s own proof of a “valid and bona-fide one,” as to amount to an absolute failure of proof of tbe charge as made. Sears v. Mo., etc., Col, 56 Mo. App. 122; Pruett v. Warren, 71 Mo. App. 84; Hackett v. Yan Frank, 119 Mo. App. 648.

— Hon. J. P. Foard, Judge. (1) Tlie court should have given appellant’s instruction in the nature- of a demurrer to- the evidence at the conclusion of respondent’s evidence for the reason that respondent failed to make a prima-facie case against appellant. (2) Respondent’s own case shows that he was guilty of contributory negligence in this: That he chose a dangerous way instead of a safe way of putting the bolt in the bolt hole and therefore is not entitled to recover.

— Eon. J. P. Foard, Judge. (1) The information filed by the city attorney charged defendant with a violation of section 640 of the Ordinances of the city of Poplar Bluff “passed and approved on the 6th day of March, 1899;” and the records of the city council offered in evidence showed that said ordinance was not passed on that day or any other day, and the defendant was therefore entitled to an acquittal. Cox v. Mignery, 126 Mo. App. 669-678; O’Dwyer v. Monnett, 123 Mo.

Frank Kelly, Judge. (1) Respondent kept the animal and made no complaint until the note sued upon was due and pay- - ment demanded. He is not entitled to any actual damages or to any accumulated damages after he discovered or should have discovered by the use of ordinary care, defects and failure of warranty, if any. He can only recover the difference between the price paid and the actual value of the animal.

— Row. Frank Kelly, Judge. (1) The statement rendered not being’ objected to by tbe defendant makes said statement an account stated. An account rendered by a creditor to Ms debtor and not objected to witMn a reasonable time, is regarded as evidence of an account stated — that is, an account conceded by both parties to be correct. Brown v. Kimmel, 67 Mo. 430; Powell v. Railroad, 65 Mo. 658; Shepherd v. Bank, 75 Mo. 143; Railroad v. Con. Co., 71 Mo. App. 302.

— Hon. D. E. Blair, Judge. (1) Tbe defendants were strangers to tbe grantor and grantee in tbe chattel mortgage and, although the chattel mortgage was made to secure a note for more than was due and was fraudulent as to creditors, yet it was valid as between the mortgagor and the mortgagee.

<p>Appeal from Banclolpb, Circuit Court. — Hon. A. H. Waller, Judge.</p>

<p>1. MECHANIC’S LIENS: Contractor: Party: Amendment. In a suit by a subcontractor to enforce his lien the original contractor must be made a party and a judgment had against him. The suit must be brought ninety days from filing the lien and where the original contractor is not made a party, he cannot be brought in by way of amendment to the petition made after the time limited for bringing the suit has expired. But this does not prevent formal amendments at any time, if the contractor is an original party, or is made a party before the time has run.</p> <p>2. --:--: Beginning of Action: Service. A suit against tile original contractor in an action to enforce a mechanic’s lien is begun by filing the petition before the expiration of the time limited for bringing suits, although there is no service until after that time has expired.</p> <p>3. EVIDENCE: Corporate Existence. The certificate of the Secretary of State and the organization of a corporation is sufficient evidence of its corporate existence.</p> <p>4. JUDGMENT: Correction: Term. A verdict was returned against two parties but the clerk failed to include one of them in the judgment record and this was corrected by the court. It was held that during the term or the term to which the case is continued all proceedings are in the breast of the court and a proper judgment may be entered during such term.</p>

<p>Appeal from Boone Circuit Court. — Hon. D. H. Harris, Judge.</p>

<p>Appeal from Jackson Circuit Court. — Hon. A. C. Southern, Judge.</p>

<p>INSURANCE: Automobiles: Robbery. Tlie plaintiff sued on an insurance policy issued by defendant to recover the value of an automobile, which was stolen while in the control of one of its salesman. The salesman took the car out in the evening with the permission of the agent, so that he might demonstrate it to two of his out-of-town customers. He left the car standing in front of a hotel for twenty minutes and when he came back the car was gone. There was evidence that the salesman was a heavy drinker and had been drinking on that evening. The defendant offered no evidence. The court gave a peremptory instruction to return a verdict for plaintiff. Held, that where plaintiff’s own evidence presents vital issues of fact the court cannot properly dispose of such issues as though they were matters of law. The credibility of the salesman and the bona fides of his conduct with reference to the theft of the car were issues of fact which the jury should have been allowed to determine.</p>

— Hon. D. E. Bird, Judge. (1) Tke statute of frauds lias no application in this case, (a) Because its benefits cannot be claimed by one who is not a party to the contract and is not sought to be charged thereby. Railroad v. Clark, 121 Mo. 169; Shelton et al. v. Thompson Bennett, 96 Mo. Ap,p. 332; Aultman v. Booth, 95 Mo. 386. (b) There was a delivery of the goods. Macomber v. Parker, 30 Mass. 175.

— Hon. Thos. J. Seehorn, Judge. (1) The court erred in refusing to permit defendant to show the actual value of the car when he bought it, and this was necessary in order to fully show his damages. Kendrick v. Ryus, 225 Mo. 158; Noel v. Hughes, 152 Mo. App. 195; Belcher v. Costello, 122 Mass. 189; 20 Cyc. 54. (2) Defendant is entitled to recoup in this case. Lang’don v. Markel, 48 Mo. 357; Nelson v. Johnson, 25 Mo. 432; Wagner v. Dette, 2 Mo.

— Hon. E. E. Porterfield, Judge. (1) The court erred in admitting testimony of expenses incurred by plaintiff as salesman for defendant, as these were not pleaded. The written contract was the sole measure of liability, the amended petition was for money paid out and expended. The same evidence would not sustain both petitions. Hernán v. Grlann, 129 Mo. 325'.

— Hon. Thos. J. Seehorn, Judge. (1) The law favors the free and untrammelled use of real property. Restriction's in conveyances of the fee are regarded unfavorably and therefore strictly construed. Scharer v. Pantler, 127 Mo. App. 437; Kitching v. Brown, 180 N. Y. Supp. 341. (2) All doubts as to their construction, being resolved in favor of the grantee. Kitchen v. Hawley, 1501 Mo. App. 497; Stone v. Pillsburg, 167 Mass. 337; Hutchinson et al. v. Urich et al., 145 111. 336.

— Hon. Jos. A. ■ Guthrie, Judge. (1) The demurrer interposed at the close of plaintiff’s evidence and renewed at the close of all the evidence should have been sustained. Daniels v. Railroad, 177 Mo. App. 280; Scroggins v. Railroad, 120 Mo. 731; Rose v. Railroad, 113 Mo. App. 605. (2) The court erred in giving conflicting instructions. Arota v. Railroad, 150 S. W. 1122; Conway v. Railroad, 161 Mo. App. 501; Detrich v. Railroad, 143 Mo. App. 176.

— Eon. O. A. Lucas, Judge. (1) Jurisdiction over defendant could be raised only by demurrer. Rev. Statute Mo. 1909, sec. 1800. (2) Sheriff’s return sufficient and conforms to statutory requirements. Rev. Statutes Mo. 1909, sec. 1767; Stegall v. Pigmant, etc., 150 Mo. App. 283. (3) That defendant was not doing business in Missouri, a question of fact for jury to be raised by plea in abatement. Stegall v. Pigmant, etc., 150 Mo. App. 283; Audenried v. Mill Co., 127 Fed. 677.

<p>Appeal from Jackson Circuit Court. — Hon. Daniel E. Bird, Judge.</p> <p>(1) Defendant was entitled to a lien, even though, defendant be a private carrier. 5 Am. & Eng. Ency. -of Law, 402; 1 Hutchinson on Carriers, sec. 46; 1 Jones on Liens, sec. 276; 2 Kent’s. Comm*., p. 635; 1 Hutchinson on Carriers, 150-799; 1 Wyman on Public Service Corporations, secs. 430-431; Express Co. v. U. S. Eixpress Co., 88 Fed. 659-662; Case Plow Works v. Union Iron Works, 56 Mo. App. 1; Devereux v. Fleming, 53 Fed. 401; Wyckofe v. Southern Hotel Co., 24 Mo. App. 391; 1911 Mo. Session Laws, p. 437, sec. 27. (2) Defendant was a common carrier and accordingly entitled to a lien. Collier v. Storage & Moving Co., 147 Mo. App. 700, 721; 1 Wyman on Public Sendee Corporations, sec. 239; Robinson v. Kennedy, 2 Dana 130; 1911 Mo. Session Laws, p. 137, sec. 27.</p>

— Now. N. B. Shain, Judge. (1) Where a person without fraud practiced upon him signs a contract, he is conclusively presumed to know its contents and to accept the terms thereof. Catterlin v. Lusk, 98 Mo. App. 182; Outcult Advertising Company v. Barnes, 176 Mo. App. 307; Poindexter v. McDowell, 110 Mo. App. 233; Home Insurance Co. v. Winn, 125 Mo. App. 384. (2) And the fact that the party signing the contract did not, or could not, read same, does not alter the rule.

— Hon. O. A. Lucas, Judge. (1) The statement of plaintiff’s cause of action does not state sufficient facts to uphold the judgment. Lawson on Bailments, 40; 136 Mo. App. 38. (2) The court erred in refusing to instruct the jury to find the issues in favor of this defendant. 10 Mo. App. 191-194; 12 Mo. 165; 82 Mo. App. 635-640-; 154 Mo. App. 538; 145 Mo. 651-658-659; 17 Mo. 36; 107 Mich. 41; 41 N. T. 113. (1) The statement filed by plaintiff is sufficient.

<p>Appeal from Jackson Circuit Court. — lion. James H. Austin, Special Judge.</p>

<p>Appeal from Jackson Circuit Court. — Eon. A. C. Southern, Judge.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Wm. O. Thomas, Judge.</p>

— Hon. A. C. Southern Judge. (1) Tlie attempted and alleged receivership proceedings were illegal and void.

— Ron. Charles D. Stewart, Judge. (1) The collateral inheritance tax statute provides for a tax upon property passing to persons not excepted by the law, from one who died a resident of the State, and also where decedent was not a resident of the State at the time of his death but his property or any part thereof shall be within the State. Revised Statutes of Missouri 1909, section 309.

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

<p>Appeal from St. Lonis County Circuit Court. — Hon. John W. McElhinney, Judge.</p> <p>The record does not show that any exceptions' were taken or saved to the action of the court in sustaining the motion for a new trial, from which this appeal; is taken. Reed et al. v. Moss et al., 167 S. W. 523.</p>

Francois Circuit Court. — Eon. Peter E. Buck, Judge. (1) The court erred in not sustaining the demurrer of the defendants to the petition of the plaintiff, because the plaintiff’s petition shows on its face that the defendants made, executed and delivered to the plaintiff their promissory note for the purchase price of the property described in the petition, which is a special contract, and where there is a special contract, the plaintiff cannot abandon the special contract…

<p>Appeal from Pike Circuit Court. — Eon. B. E. Dyer, Judge.</p>

— Hon. B. H. Dyer, Judge. (1) Under the circumstances of this case the burden of proof was upon the defendant to show the fairness and good faith of the transactions. Cornet v. Comet, 248 Mo. 234; Armstrong v. Logan, 115 Mo. 465; Obst v. Unnerstall, 184 Mo. 383; Miller v. Simon, 72 Mo. 669; Bogie v. Nolan, 96 Mo. 85; Caspari v. Church, 82 Mo. 649; Holloway v. Holloway, 77 Mo. 392; Street v. Gass, 62 Mo. 226; Yosti v. Laughran, 49 Mo. 594; Dausman v. Ranken, 189 Mo. 677.

Francois Circuit Court. — Hon. Peter H. Huele,.Judge.' (1) The canse of action stated in plaintiffs’ petition is in tort for negligent delay. In order to recover damages, if any, sustained in consequence of delay in •transportation of plaintiffs’ stock the burden was on the plaintiff to show not only unusual delay, but that tsuch delay was caused by negligence of defendant. Hickey v. Railroad, 174 Mo. App. 408; Gregory v. Railroad, 174 Mo. App. 550; Ecton v. Railroad, 125 Mo.

— Hon. Peter H. Huck, Judge. (1) Tire court erred in refusing instruction number 6 asked by appellant.

— lion. Peter H. Huch, Judge. (1) The court should have permitted the defendant to testify that payment ,of funeral expenses to McLain & Kinder was after the appointment of the administrator. 'Kirton v. Bull, 168 Mo. 622. (2) Appellant’s instruction in the nature of a demurrer to the evidence asked at the close of plaintiff’s evidence and rendered at the close of all the evidence should have been given. Ryan v. McCully, 123 Mo. 636 ; Fink v. Railroad, 161 Mo.

Louis County Circuit Court. — Ron. John W. McElhinney, Judge. (1) The word repair means “restoring to a sound and good condition,” “not to make a new thing, but to refit, make good, or restore an established thing, to repairs a highway and streets includes the substitution of a new curbstone and gutters for old ones, to mend, refit, retouch, patch and tinker up.” Anderson’s Law Dictionary, page 879; Black’s Law Distionary, page 1023.

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

— Eon. B. E. Dyer, Judge. (1) The crucial point or question presented on this appeal for determination is, the proper construction to be given the policy or certificate of insurance sued on, and the consequent liability of defendant thereunder by virtue of its certificate of assumption.

Francois Circuit Court. — Hon. Peter H. Huelo, Judge. (1) Section 2890 does not apply to any one except the company and Fry. Aubucbon did not purchase from-the company, hence the company was not required to refund any part of the money paid by Fry. The court erred in permitting Fry to testify that no part of the money paid by him to the company had been paid back. Barnes v. Rawlings, 74 Mo. App. 531.

Francois Circuit Court. — Son. Peter S. Such, Judge. (1) The cause of action stated in plaintiff’s petition is in tort for negligent delay. In order to recover damages, if any, sustained in consequence of delay in transportation of plaintiff’s stock, the burden was on the plaintiff to show not only unusual delay, but that such delay was caused by negligence' of defendant. Hickey v. Railroad, 174 Mo. App. 408; Gregory v. Railroad, 174 Mo. App. 550; Ecton v. Railroad, 125 Mo.

— Ron. Peter R. Ruck, Judge. (1) When it appears from the face of a deed or mortgage that there is a trust or reservation of use to the grantor, the court as a matter of law, will declare such deed void as against creditors.

Louis County Circuit Court — Hon. G. A. Wurdeman, Judge. (1) The plaintiff must exclude the possibility that the negligent act of himself or his fellow-servant caused the injury before he is entitled to go to the jury upon the question of the alleged defect in the appliance. Epperson v. Postal Telegraph Co., 155 Mo. 343, 382; Moriarty v. Schwarzschild v. Sulzberger, 132 Mo. App. 658.

— Ron. B. R. Dyer, Judge. (1) It was competent for defendant to show by parol that the actual amount claimed by defendant in the justice court upon his set-off was within the jurisdiction of the justice, notwithstanding the set-off on its face exceeded his jurisdiction. Best v. Best, 16 Mo. 530; Downey v. Perry, 2 Watts, 304; Vanderberg v. Gras Company, 199 Mo. 460; Bridge Co. v. Transit Co., 205 Mo. 179; Cherry v. Cherry, 150 Mo. App. 418; Buxton v. Debrecht, 95 Mo.

Louis County Circuit Court. — Eon. G. A. Wurdemon, Judge. (1) Plaintiff’s main instruction assumes disputed facts, is inconsistent and is palpably erroneous. The assumption of facts in the case at bar is much more marked and harmful than the assumption made in the following cases which were reversed because the instruction assumed disputed facts. G-aney v. Kansas City, 168 S. W. 19'6; Burroughs v. Likes, 166 S. W. 643; Neas v. Eailroad, 138 Mo.

Appeal’ from St. Charles Circuit Court. — Hon. B. H. Dyer, Judge. (1) The motion to assess damages should have been denied, because it was not warranted by any statute and was wholly unsupported by any competent proof. 2 High on Injunctions, sec. 1686, p. 1634; 1 Joyce on Injunctions, sec. 207, pp. 335, 336; Brown v. Baldwin, 121 Mo. 126; Anderson v. Anderson, 55 Mo. App. 268; Banking Co. v. Monarch Co., 68 Mo.

— lion. Peter H. Euclc Judge. The abstract must show from the record proper that the motion for a new -trial was filed and overruled and that time was granted to file the bill of exceptions and the same was duly filed by the court or the clerk in vacation by an order duly spread upon the record or some statement to that effect, or appellant has nothing before this court for its consideration but the record proper: Bradberry v. Kerns, 115 Mo.