Volume 188 — Missouri Reports

— How. W. W. Graves, Judge. (1) Defendant had no power to issue a policy of reinsurance, so-called, or to do any other act or thing than to mutually insure the property of its members, and to raise funds for the payment of losses sustained by its members, by assessment upon its members. Laws 1895, p. 200, secs. 1, 2, 3, 4.

— No». J. N. Slover, Judge. (1) There was no authority in Summers to make this title bond. His duty was “to grant, bargain, sell and convey” and he could make no instrument that did not include all of these powers. It gave him no authority to bind Hubbard to convey. This was not a contract to convey, under the power of attorney, but an option which he could not give. Class v. Rowe, 103 Mo. 538.

<p>1. ENFORCING A TRUST. Dependent Provisions: Divisibility. Where the material provisions of a trust agreement reciting that the title-owner of two separate tracts of land holds them in trust for himself and others, are common with and dependent on each other, the agreement is an entirety, and cannot be enforced in equity by piecemeal; but if the contract is divisible and contains separable provisions, not dependent on each other, they can be separately enforced.</p> <p>2. --: -: -: Tracts of Land: Interests of Parties. Where the trust agreement refers to two tracts of land, and the interests of the parties in the one are not dependent on their interests in the other, and the parties did not by the agreement intend that they should he, and it does not appear from the agreement that they would not have made it unless it embraced both tracts, or that both tracts were the essence of the contract, it is a severable contract and may be separately enforced.</p> <p>3. -: -: -: -: Purchased and Unpurchased. For an expressed consideration of one dollar and “with funds furnished in equal parts” by the parties, the defendant acknowledged himself to “hold in trust” for two others a two-thirds interest in two tracts of land, one being north of a named road “to be acquired” by him, and the other lying south of the road and “hereby conveyed,” hawing already been acquired by defendant. Held, that the agreement was severable, and could be enforced as to the latter tract in a court of equity, and on a suit to enforce it the land could be partitioned.</p> <p>4. -: Trust Agreement: Executory: Prospective Purchase: Statute of Uses. A trust agreement in which the maker acknowledges himself to hold land thereafter to be purchased in trust for himself and other named persons, is executory, and usually a court of equity will refuse to enforce such a contract; but if the agreement created a mere naked use, and there was nothing further for him to do, the Statute of Uses at once executed it.</p> <p>5. -: Laches. Mere lapse of time short of the period fixed by the Statute of Limitations, will not bar a claim to equitable relief, when the right is clear and there are no countervailing circumstances. And where the suit is to- enforce an agreement in which one of the parties acknowledges that he holds two-thirds of the land in trust for plaintifEs, and that agreement is of record, and after its record defendants buy it from the trustee, and the land is wild and defendants made no improvements except to build a small house thereon to put corn in, and were not induced by plaintiffs to change their position, the suit is not barred by laches, nor by limitations if brought within the period fixed by statute.</p> <p>6. -: Limitations. In a suit to enforce a trust agreement against purchasers from one of the parties who acknowledged that he held the land in trust for plaintiffs, the Statute of Limitations does not begin to run on the making of the agreement, but when the trustee sold the land to defendants.</p>

— Hon. W. B. Teasdale> Judge. (1) In this State a court of equity will specifically enforce an oral contract to devise or leave all of one’s property to another person in consideration of services rendered in the relation of an adopted son or otherwise. Such services are a valuable consideration and it would be a fraud upon the person rendering the services or acting in such capacity to refuse to enforce the contract.

— Row. R. G. Timmonds, Judge. (1) The Statute of Limitations will not run in favor of parties occupying land appropriated to public use. R. S. 1889, sec. 4270; Brown v. Carthage, 128 Mo. 10; St. Louis v. Railroad, 114 Mo. 13; Railroad v. Totman, 149 Mo. 657; Hendrickson v. G-rable, 157 Mo. 48; Railroad v. Baker, 82 S. W. 85. (2) Land bought by the county on foreclosure of a school fund mortgage becomes school property and is appropriated to a public use.

— How. J. L. Fort, Judge. (1) The verdict was for the wrong party if the law is to he upheld that a man has the right to dispose of his property by will, unless it clearly appears by a preponderance of the testimony that he was incompetent at the time he made the will to execute a valid instrument. Sehr v. Lindemann, 153 Mo. 292. (2) The time to which the question of testamentary capacity relates is the precise time of the excution of the will.

<p>1. APPELLATE JURISDICTION: Constitutional Ordinance: Assumed at Trial. Where an ordinance authorizing appellant’s property to be charged with the cost of a public improvement, was assumed to be valid and constitutional below, it will be assumed to be constitutional on appeal. And where, on the trial, the ordinance was introduced by the appealing property-owner for the sole purpose of showing that the work was not done in conformity to its requirements, he assumed that it was a valid and constitutional ordinance.</p> <p>2. -: -: Specific Objection. Where the only reference found in the record to the constitutionality of a statute is contained in an allegation in the petition, that “the statute authorizing the appointment of an engineer is unconstitutional and void,” with no citation of what statute is meant or of what part of the State or Federal Constitution it violates, no constitutional question is so raised as can be considered by the court. In order for the court to consider the constitutionality of a statute, not only must the statute itself be pointed out, but the specific provision of the Constitution thought to' be infringed must also be pointed out.</p>

<p>Transferred from Kansas City Court of Appeals.</p>

— Now. J. L. Fort, Judge. (1) There is no service of the notice in this case. The statute is that it shall he the duty of all persons claiming said lien within said ninety days to serve a copy of the account on the person or corporation owning or operating or having charge of said road or of the property to which said lien attaches. R. S. 1899, sec. 4241. The statute makes no provision for serving this notice.

— Hon. H. G. Timmonds, Judge. (1) Defendant is not primarily liable in this action. Secs. 11 and 12, art. 10, Constitution. (2) Tbe intention of the Constitution was to put municipalities such as defendant upon a cash basis absolutely. Book v. Earl, 87 Mo. 252; Barnard & Co. v. Knox Co., 105 Mo. 386; Andrew Co. v. Schell, 135 Mo. 38; State v. Payne, 151 Mo. 669; Railroad v. Thornton, 152 Mo. 574; State v. Johnson, 162 Mo. 629; State v. Railroad, 169 Mo. 574.

<p>1. LIMITATIONS: County: Swamp Lands. The Statute of Limitations runs as to swamp lands sold by the county to private individuals, and as to the county before they are sold. So that where defendants have been in the open, actual, continuous, adverse possession of such lands ten years before the institution of the suit in ejectment, plaintiff cannot recover.</p> <p>2. -: -: -: Public or Charitable Use. The*statute provides that “nothing contained in any statute of limitations shall extend to any land given, granted, sequestered or appropriated to any public, pious or charitable use or to any lands belonging to the State.” Ecld, that swamp lands donated to the State and by the State to the county do not come within the terms of that section either as to lands sequestered and appropriated to a pious use, or to a charitable use, or as belonging to the State. Those lands are not property held strictly-for public purposes, such as streets or parks, but property held by the county in its private character. As to swamp lands the Statute of Limitations runs against the county the same as it does against private individuals.</p>

Certiorari. (1) The Kansas City Court of Appeals has no jurisdiction to finally decide a case upon its merits and require the circuit court to enter final judgment therein upon an appeal from an interlocutory order dissolving a temporary injunction and settling the accounts of a receiver, and it therefore has no jurisdiction to compel the circuit court to do so by writ of mandamus. Yoorhis v. Assn., 59 Mo.

— Hon. John W. Henry, Judge. (1) The designation of material by the board of public works extended to the residents owning a majority in front feet of the abutting lands, the right and opportunity to select (1) “Trinidad Lake asphalt;” (2) “Bermudez, California, Trinidad or any other asphalt equally as good as those designated;” i. e., to select the asphalt by place of its existence or origin, and not otherwise.

Transferred from St. Louis Court of Appeals. (1) It is the contract of sale which passes the title, and not the payment of the purchase price or the delivery of the goods. Penn v. Hess, 17 L. R. A. 182; Connable v. Clark, 26 Mo. App. 162. (2) The title to unspecified goods sold passes at the very instant the goods are designated under the terms of the contract. Andrews v. Cheney, 62 N. H. 404; Bank v. Bangs, 102 Mass. 291; Black on Sales, 122, 127; Benjamin on Sales, p. 358.

<p>Appeal from Pike Circuit Court. — Row. D. R. Eby, Judge.</p> <p>(1) The demurrer to the evidence should have been sustained. Yancey v. Railroad, 93 Mo. 433; Sinclair v. Railroad, 133 Mo. 233; Morgan v. Railroad, 159 Mo. 262; Holwerson v. Eailroad, 157 Mo. 216; Sharp v. Eailroad, 161 Mo. 214; Tanner v. Eailroad, 161 Mo. 497; Hook v. Eailroad, 162 Mo. 569; Yan Bach v. Eailroad, 71 S. W. 358. (2) At the close of the entire tes-' timony the court below should have directed a verdict in favor of the defendant. Authorities supra. (3) The court gave erroneous instructions at the plaintiff’s request. Eailroad v. Eailroad, 118 Mo. 625; Eobertson v. Eailroad, 152 Mo. 382. (4) The court refused proper instructions asked by defendant." E. S. 1899, sec. 1105; Payne v. Eailroad, 136 Mo. 562; Sinclair v. Eailroad, 133 Mo. 233; Turner v. Eailroad, 78 Mo. 578; Alcorn v. Eailroad, 108 Mo. 90.</p> <p>(1) Instruction one given for plaintiff properly declared the law under the pleadings and the evidence. Hanlon v. Eailroad, 104 Mo. 381; Smith v. Eailroad, 53 Mo. App. 36; Dahlstrom v. Eailroad, 108 Mo. 525; Eeardon Vi Eailroad, 114 Mo. 384; Sullivan v. Eailroad, 117 Mo. 214; Sinclair v. Eailroad, 133 Mo. 233; Chamberlin v. Eailroad, 133 Mo. 587; "Williams v. Eailroad, 96 Mo. 275; Lynch v. Eailroad, 111 Mo. 607; Donahue v. Eailroad, 91 Mo. 357; Schofield v. Eailroad, 75 Mo. 434; Frick v. Eailroad, 75 Mo. 595; Kelly v. Eailroad, 75 Mo. 138; Mayher v. Eailroad, 64 Mo. 267; Meyer v. Eailroad, 59 Mo. 223; Dunkman v. Eailroad, 95 Mo. 232; Powell v. Eailroad, 59 Mo. App. 626; Kries v. Eailroad, 131 Mo. 533; Guenther v. Eailroad,' 108 Mo. 18; Kelney v. Eailroad, 101 Mo. 67; Morgan v. Eailroad, 159 Mo. 262. (2) Instruction 2 given at the instance of plaintiff properly declared the law. Weller v. Eailroad, 164 Mo. 180; Sullivan v. Eailroad, 117 Mo. 214; Eeardon v. Eailroad, 114 Mo. 384. (3) The court properly refused to give defendant instructions in the nature of a demurrer to the evidence." Keller v. Eailroad, 164 Mo. 180 ; Reardon v. Railroad, 114 Mo. 384. (4) The court did not err in the refusal of any or all of defendant’s instructions which were refused: (a) They were' too numerous and were unnecessary and liable to confuse the jury. State v. Frazier, 137 Mo. 317. (b) They embraced a repetition of principles already laid down. Crews v. Railroad, 19 Mo. App. 302. (c) The refusal was warranted by the very fact of their large number. Buck v. Railroad, 108 Mo. 179; Blanton v. Dold, 108 Mo. 64; Hickman v. Link, 116 Mo. 123; State v. Tomasitz, 144 Mo. 86.</p>

— Hon. Echo. P. Gates, Judge. (1) The demurrer to the evidence should have been sustained. Fuchs v. St. Louis, 167 Mo. 645; Agan v. Shannon, 103 Mo. 665; Grattis v. Railroad, 153 Mo. 403.

Transferred from St. Louis Court of Appeals. The assessment for improvements as pleaded can only be enforced by retaining possession of the land. It is a judgment in rem. This under the law, is a proper judgment. Russell v. DeFrance, 39 Mo. 506; Stump v. Hornback, 94 Mo. 31. The deed of trust was given pending the suit for improvements.

Louis City Circuit Court. — How. Darnel G. Taylor, Judge. (1) The indictment in this case charges the defendant with manslaughter and not with murder. There is nothing in this case to sustain the judgment. State v. Cook, 170 Mo. 210; State v. Ferguson, 152 Mo. 98; State v. Sanders, 158 Mo. 610; State v. Myers, 99 Mo. 115; 3 Chitty’s Criminal Law, 750; Wharton on Homicide; sec. 49. (2) Defendant prayed the court for an instruction on'murder in the second degree.

<p>1. DEED: Delivery: Unconditional. Unless there is an unconditional delivery of a deed during the lifetime of the maker, a clause therein that it is not to he delivered during the maker’s lifetime is not waived.</p> <p>2. REFORMING DEED: Proof. The prima facie presumption is that a written instrument exhibits the ultimate intention of the maker, and that all previous proposals and negotiations have been abandoned; and, therefore, the burden rests upon one seeking to have it reformed to show, by satisfactory and clear evidence, that a mistake was made in inserting a clause which it contains.</p> <p>3. -: -: Delivery. A deed contained a condition that it was to he held in the maker’s possession till his death, and the scrivener who wrote it testified that he inserted the clause of his own motion for the protection of the grantor and that he read the deed over to the grantor twice before he signed it.</p> <p>Held, that, although the grantor may not have intended to insert the clause in the deed, yet it must he presumed that, in view of the fact that it was read over to him twice before the deed was executed, he knew the condition was in the deed and that it expressed his desire and intention; and, having held it for over a year thereafter, it must he held that there was no evidence which would justify a court of equity in striking out the clause.</p> <p>4. -: Delivery After Death: Mistake of Law. Where the evidence discloses simply a mistake of law in the grantor, in supposing his'deed could he delivered after his death, and not a mistake of fact, in having a clause inserted therein that it was not to he delivered until after his death, a court of equity will not reform the deed hy striking out the clause.</p>

<p>APPELLATE PRACTICE: No Bill of Exceptions. Where no bill of exceptions is filed, and the record proper is free from error, the judgment will be affirmed.</p>

— Hon. Robert A. Anthony, Judge. (1) Defendant’s motion to compel the State to elect npon which connt of the information it wonld proceed to trial against him should have been sustained. This information contains five counts charging the killing to have been done by every manner and means known to the ingenuity of the pleader. Defendant was not apprised of the “nature” and “cause” of the accusation against him. Constitution, art. 2, sec. 22.

— Now. N. C. Pepper. Judge. (1) Trial courts should abstain from comments upon the evidence in presence of the jury. State v. Findley, 101 Mo. 224; Hackmann v. Gutweiler, 66 Mo. App. 244.

<p>Appeal from Johnson Circnit Court. — Row. Wm. L. Jarro it, Judge.</p> <p>(1) Evidence of had reputation for chastity is always admissible to affect the credibility of a witness. State v. Raven, 115 Mo. 419; State v. Weeden, 133 Mo. 70; State v. Sibley, 131 Mo. 531, 132 Mo. 102; State v. Duffey, 128 Mo. 549; Markham v. Herrick, 82 Mo. App. 32. (2) In a prosecution for carnal knowledge of a female between fourteen and eighteen years of age, evidence of bad reputation for chastity of the prosecuting witness after the act is admissible to affect her credibility as a witness, after she has testified. State v. Babst, 131 Mo. 328; State v. Summar, 14-3 Mo. 330; McKern v. Calvert, 59 Mo. 243.</p> <p>(1) Every question of law sought to be presented in the refused instructions, as applicable to the facts in evidence, was embodied in instructions given by the court, which correctly and fully covered all the law of the case. And “where the instructions given are correct and fully cover the case, it is not error to refuse defendant’s instructions.” State v. Prank, 159 Mo. 535'; State v. Atchley, 84 S. W. 984; State v. Nelson, 166 Mo. 191; State v. Bradford, 156 Mo. 91. (2) The court did not commit error in limiting the inquiry as to the chastity of the prosecutrix to the time of the arrest of defendant. State v. Knock, 142 Mo. 515; Bookhout v. State, 66 "Wis. 415; People v. Brewer, 27 Mich. 134.</p>

— Hon. John W. Wolford, Judge. Under' onr statute “fleeing from justice” and “moving out of the State” are essentially different, and, in the words of this court, “In a word, would not advise him upon which alternative the State intended to rely.” State v. Snyder, 182 Mo. 462.

Louis Court of Criminal Correction.— Hon. Hiram W. Moore, Judge. Appellant’s demurrer to the State’s evidence should have been sustained, as appellant was charged in the information as the manager of a corporation and there was no such proof.

— Sow. J. W. Alexander, Judge. (1) It was erroneous on the part of the court and highly prejudicial' to the defendant for the court to give instruction 2. Evidence of drunkenness was only introduced as bearing upon the mental condition of the defendant at the time of obtaining his alleged confession.

— Ho». J. L. Fort, Judge. There being only the record proper before the court, and the proceeding appearing to have been regular, the judgment should be affirmed.

Louis City Circuit Court. — Ho». Daniel O. Taylor, Judge. (1) There need he no citation of. authority for the proposition that every element of a crime must be sustained by substantial proof which convinces beyond a reasonable doubt.

— Ho». J. J. Gideon, Judge. Appellant contends that, since the information was not refiled, there was nothing in the record upon which to place the defendant on trial. The omission to refile the information was not the fault of the appellant.

<p>Appeal from Greene Criminal Court.— Eon. J. J. Gideon, Judg'e.</p>

— How, H. C. Riley, Judge. The table and gambling device, to-wit, “a pair of dice,” is not a gambling device under section 2194, Revised Statutes 1899. The table should be designed, adapted, and devised for the purpose of playing a game of chancó, such as is named in section 2194.

<p>1. INFORMATION: Failure to Verify. Where an information is not verified as required hy statute, and the lack of verification is called to the attention"- of the trial court hy timely motion to quash and hy motions for new'trial and in arrest, and said motions are overruled and duly preserved in a hill of exceptions, the judgment will he reversed, and the cause remanded.</p> <p>2. -: Verification After Verdict. After the verdict has been rendered and motions for new trial and in arrest have been overruled, 'it is too late to amend an information by verifying It, and the verification at that time is a nullity.</p>

Louis City Circuit Court . — Hon. Jesse A. McDonald, Judge. (1) The only tangible evidence of any character against either of the defendants was Dale’s consent to pay Sawyer the amount that he claimed he had lost; but the court must bear in mind her denial all the while that she knew anything of the taking of the money, and that she paid the amount under the duress of threatened arrest.

— Him. Asbury Burkhead, Judge. The evidence abundantly shows that the prosecuting witness was drunk and disorderly and, when drunk, dangerous and quarrelsome; that Tooker, the defendant, was in charge of the station, and bound to protect the public from insult and annoyance. Under this evidence the instruction marked “refused” should have been given, or at least its substance in some form.

<p>JUDGMENT AGAINST PROSECUTOR FOR COSTS: Revivor: Appellate Jurisdiction. The revival of a judgment rendered against a prosecuting witness for costs where no indictment is found, is a civil proceeding, and if the amount of the judgment is below the jurisdiction of the Supreme Court, and the constitutionality of the statute conferring the right to render such judgment is not attacked, the appeal is to the proper Court of Appeals.</p>

<p>Appeal from St. Lonis City Circuit Court. — How. O’Neill Ryan, Judge.</p>

— Now. J. J. Gideon, Judge. (1) Defendant was entitled to a jury whose verdict would not take into consideration the color of his skin. (2) The testimony of witness Reese was all incompetent. That part of it wherein the witness speaks of the pistol or gun and seeing it was properly objected to and exception taken to its admission; so with the remarks attributed by the witness to defendant.

,Appeal from Douglas Circuit Court. — Hon. Asbury Burkhead, Judge. The evidence supports the verdict in that it shows clearly that India Hatfield was under the age of eighteen years and that she was living at the home of her father, and was prevailed upon by the defendant to go with him to Arkansas. State v. Bobbst, 131 Mo. 328.

— Hon. H. C. Riley, Judge. (1) The testimony of witness Bnrris, as to the reputation of defendant in Tennessee, some seven or eight years prior to alleged offense, was incompetent and erroneous. State v. Parker, 96 Mo. 382; Wadding-ham v. Hulett, 92 Mo. 528.

Louis City Circuit Court. — Ho». Selden P. Spencer, Judge. (1) To determine ■whether a transaction is a conditional sale or a mortgage, the court will look not only to the deeds and writings, but to all the circumstances of the contract, to ascertain the real intention of the parties.

Prohibition. (1) If the facts in relation to said William P. Larew set ont in the suggestions presented to the circuit court of the city of St. Louis by the Bar Association of that city are such as to warrant said court taking any action whatever in relation to the said Laréw, then this writ of prohibition cannot go as prayed for. State ex rel. v. Wood, 155 Mo. 445; Schubach v. McDonald, 179 Mo. 182; Forsee v. Grates,. 89 Mo. App. 584.

— lion. H. G. Timmonds, Judge. (1) The demurrer to the evidence should have been sustained because there was no evidence offered tending to show that plaintiff complied with the conditions of the reward, and because it was affirmatively shown that the service rendered hy plaintiff in making the arrest was rendered prior to the reward being offered by Vernon county. Sanderson v. Lane, 43 Mo. App. 158; Lovejoy v. Railroad, 53 Mo. App. 386; Sheery v. United States, 92 U. S. 77.

— Ho». George F. Long an, Judge. (1) The treasurer of a school district is neither an officer within the meaning of section 4274, Revised Statutes 1899, nor in the legal acceptation of the term, because under section 9864 he is neither elected or appointed, but is chosen by the school board, and may or may not be a member of tbe board, because no official oath, such as is prescribed by section 9760 for school directors, is required of him, which is a conclusive legislative…

Louis City Circuit Court.— Hon.. Jno. A. Tatty, Judge. (1) The court erred in not granting defendant’s instruction in the nature of a demurrer to the evidence. Jackson v. Railroad, 118 Mo. 199; Beach on Contributory Negligence, see. 161, pp. 235-6; Olfermann v. Railroad, 125 Mo. 408; Railroad v. .Calderwood, 89 Ala. 247; Duncan v. Railroad, 48 Mo. App. 659. (2) The court erred in permitting Dr. Niedelet, plaintiff’s physician and witness, to answer an improper question.

<p>APPEAL: Dismissal: No Abstract or Bill. Where the plaintiff-appellant has failed to file and serve an abstract as required by the statute and the rule of court, or failed to file his bill of exceptions within the time allowed by the trial court, his appeal will be dismissed.</p>

Louis City Circuit Court. — Now. Horatio D. Wood, Judge. (1) The stock was not in fact full paid. This point was conceded by the learned judge of the circuit court, and the facts of the case were stronger on this point than in the cases of: Van Cleave v. Berkey, 143 Mo. 109; Berry v. Rood, 168 Mo. 316; see, also, Mo. Const., art. 2, sec. 8; 1 Cook on Stock and Stockholders (4 Ed.), 435; Shickle v. Watts, 94 Mo. 410.

<p>1. APPELLATE JURISDICTION: Constitutional Question. In order to give the Supreme Court appellate jurisdiction on the ground that a constitutional question is involved, a specific constitutional guaranty must have been invoked in the trial court and must have been denied in that court. The only exception to this rule is where a constitutional question is necessarily involved.</p> <p>2. -: -: Exception to Instruction: Nine-Jury Law. The appellant did not raise a constitutional question by merely excepting to the giving of an instruction authorizing nine of the jury in a civil case in the circuit court to render a verdict. Such an exception contains no reference to the Constitution.</p> <p>3. -: -: By Motion for New Trial: Nine-Jury Law. Appellant in his motion for a new trial charged the court with error in authorizing nine of the jury to render a verdict, “it being contrary to the Constitution of the State for a verdict to be rendered by less than all the panel.” Held, that as the Constitution, as amended in 1900, authorizes three-fourths of the jury to sender a verdict in a civil case tried in the circuit court, no question is by the motion raised as to the legality of the adoption of the amendment, and no constitutional question is directly raised by the motion.</p>

Louis City Circuit Court. — Hon. Wm. Zachrits, Judge. (1) The general rule is that cities, like individuals, are held to the same liability as individuals. Hilsdorf v. St. Louis, 45 Mo. 97; 2 Dillon on Municipal Corp., secs. 964, 980. (2) A municipal corporation owning waterworks which, supply private consumers on the payment of tolls is liable for the negligence of its agents and servants the same as like private proprietors would be. 2 Dillon Mun.

Charles Circuit Court. — Hon. E. M. Hughes, Judge. The damages awarded bear no just proportion to the injuries sustained. They are grossly excessive. In everything except the estimation of the damages for pain, the damages are a mere matter of calculation.

— -Aim J. W. Alexander, Judge. (1) An equity case is tried de novo in the appellate court, as if it originated there. Sheridan v. Nation, 159 Mo. 27; Railroad v. Brandon, 81 Mo. App. 1; Robertson v. Sheperd, 165 Mo. 360. The appellate court will examine the facts and render judgment for the right party, notwithstanding the findings of the trial court. Donivan v. Donivan, 157 Mo. 157; Fitzpatrick v. Weher, 168 Mo.' 562; Hoeller v. Haffner, 155 Mo. 589.

Louis City Circuit Court.— Eon. John A. Talty, Judge. (1) The referee erred in finding that clause 16 was a part of the specifications which formed a part of the contract. (2) The referee erred in finding that plaintiff excavated no loose rock. (3) The referee erred in finding that both Mr. Cole and Mr. Moore, the engineers, had decided that plaintiff had excavated no loose rock, but that all material excavated by him was earth.

Loiiis City Circuit Court. — Row. Daniel D. Fisher, Judge. (1) The petition alleges a state of facts which would have existed, provided no alteration had been made in the debt as it was' originally. But that debt had been altered in its terms, and duration, and no longer remained the debt described in the petition, as was conclusively shown by the evidence. Therefore the court erred in refusing defendant’s declarations of law 1 and 2.

— No». Hugh Dabbs, Judge. (1) Tbe assets of tbe bank bad all been sold by tbe assignee and it bad no property with wbicb to employ attorneys or to even pay a filing fee. A court of equity never permits a wrong to go unredressed, merely for the sake of form.

Louis City Circuit Court. — Row. ■ Horatio B. Wood, Judge. (1) Any plaintiff suffering a nonsuit may commence a new action from time to time, within one year after such nonsuit suffered. R. S. 1899, sec. 4285. (2) The dismissal of plaintiff’s suit in her absence and entering of judgment against her for costs, without considering the merits of her case, was a nonsuit within the meaning of section 4285.

Louis City Circuit Court. — How. O’Neill By an, Judge. (1) As counsel for plaintiff does not allege in Ms petition any uegligence in the construction of the offending crossing gate, or the fenders which were placed beside it for the purpose of protecting it, but simply bases his cause of action on the fact that the gate was an unlawful obstruction in the street, and expressly avers in his petition that both the gate and the fenders were placed in the street by and with the…

— Ho». David H. Eby, Judge. (1) The will of William Shaw created a life estate in Lucy Shaw with remainder in plaintiff and Robert C. Prewitt, junior. Riggins v. McClellan, 28 Mo. 23; Munro v. Collins, 95 Mo. 33. (2) Robert C. Prewitt, by his marriage to Lucy Shaw, acquired the intervening life estate of Lucy Shaw. And when the property came into his hands it came impressed with the express trust created by the terms of the will.

— Hon E. M. Hughes, Judge. (1) Upon the death of Thomas Board, July 5, 1902, leaving no minor children, his homestead passed to and vested in his widow, Lucy B. Board. R. S. 1899, sec. 3620; Wilson v. Johnson, 160 Mo. 515. (2) In lieu of dower of the one-third part of all lands whereof her husband died seized of an- estate of inheritance-(but not in lien of homestead) Lucy B. Board could elect to take a child’s part of such lands. She did so elect.

Louis City Circuit Court. — Now. Warwick Hough, Judge. (1) The failure to complete the -work in the time-specified in the contract constitutes a complete defense and makes the taxbill void. Time is of the essence of this contract. McQuiddy v. Brannock, 70 Mo. App. 535; Springfield v. Davis, 80 Mo. App. 594; Neil v. Gates, 152 Mo. 585; Barber Asphalt Co. v. Ridge, 169 Mo. 376.

Louis City Circuit Court. — Now. Horatio D. Wood, Judge. (1) The court sustained a demurrer to plaintiffs’ evidence. In actions in equity, as well as at law, the demurrer to the evidence concedes every fact which the evidence tends to prove, and every inference fairly deducible from the facts proved. Hence, if there is any evidence in the record, from which adverse user, or user as of right, might be inferred, the trial court erred in sustaining the demurrer to the evidence.

Louis City Circuit Court. — Now. Franhlin Ferriss, Judge. (1) The court below erred in treating the mandate of this court as an absolute instruction to enter a judgment, non obstante, for plaintiff.