Volume 188 — Missouri Appeal Reports

Louis County Circuit Court.—Hon. G. A. Wur deman, Judge. (1) The evidence showing that the materials were sold and delivered and charged to the Kirkwood Manufacturing & Supply Company with no mention that they were sold for the Stockstrom house, the account being an open account, showing debits on one side of over $4000, and credits on the other side of over $3000, and running for nearly two years, establishes beyond a doubt that the materials' sued for were sold to the…

Louis County Circuit Court.—Ron. G. A. Wurdemcm, Judge. (1) The trial court acquired no jurisdiction over defendant Funsch, as he was not a resident of St. Louis county, and the petition showing no joint liability. Graham v. Ringo, 67 Mo. 824; State ex rel. v. Shelton, 249 Mo. 660. (2) Defendant Funsch was entitled to a strict performance of the contract of guaranty and of the lease, and the change in tenants released him of liability.

—Ron. E. M. Rearing, Judge. The live stock contract offered in evidence by the defendant is valid under the Interstate Commerce Act and the trial court erred in excluding it. American Silver Mfg. Co. v. Railroad, 156 S. W. 830 ; Adams Express Co. v. Croninger, 226 U. S. 491; Railroad v. Carl, 227 U. S. 639; Railroad v. Harriman Bros., 227 U. S. 657; 13 Interstate Com. Rep. 550; Railroad v. Mugg, 202 IT. S. 242; Iiart v. Railroad, 112 IT.

-—Son. E. M. Bearing, Judge. The record discloses that deceased, at the time of his injury, was an engineer in charge of the engine pulling a passenger train engaged in interstate commerce. The petition and instructions of respondent show that the action was brought and tried under the provisions of the Damage Act of Missouri (R. S. 1909, chap. 38, p., 1712).

—Hon. Edgar B. Woolf oik, Judge. (1) The instruction in the nature of a demurrer to the evidence should have been given for the following reasons: (a) At all “flag” stations or “wayside deposits” made for the purpose of saving the trouble of hauling to a regular depot the live stock are held at the risk of the owner until they are placed upon the cars.

<p>SUPREME COURT: Appellate Jurisdiction: Amount Involved. The Supreme Court has jurisdiction of an appeal from a judgment for defendant oh demurrer to the petition, in an action for false imprisonment, in which judgment for $25,000 compensatory, and $25,000 punitive, damages was prayed.</p>

Charles Circuit Court.—Hon. B. H. Dyer, Judge. (1) The petition is fatally defective in that it fails to aver that plaintiff is a resident of the State of Missouri, and had resided in this State one whole year nest before the filing of her petition; nor does it aver that the offense or injury complained of was committed within this State, or while one or both of the parties resided in this State. Sec. 2373, R. S. 1909; Stansbury v. Stansbury, 118 Mo.

—Row. J. P. Foard, Judge. (1) Plaintiff was a trespasser, and defendants’ servants in charge of the train owed him no duty until after they actually knew that he was in an exposed and dangerous position.

—ífow. J. P. Foard, Judge. (1) Tbe will of William B. Dorn Paving vested a life estate in Mattie G. Dorn, Ms widow (now Mattie G. Felton by marriage), and the appellants being remaindermen, were under no obligation to pay taxes on the lands in controversy, until the determination of the said life estate, and had no right of possession of said lands in the meantime. Dyer et al. v..

— Ron. Frank Kelly, Judge. (1) The court erred in admitting incompetent, irrelevant and immaterial testimony offered by plaintiff, which undertook to vary and contradict a written contract or the record thereof. Childers v. Pickenpaugh, 219 Mo. 451; Chilton v. Metcalf, 234 Mo. 27; Smith v. Vickery, 235 Mo. 423; Baker v. Underwood, 63 Mo. 84; Roberts v. Central Lead Co., 95 Mo. App. 582; Wishart v. Gerhart, 105 Mo.

—Ron. David E. Blair, • Judge. (1) All agencies carry such powers as the principal has, by his acts, or by negligent omissions, or by. acquiescence, caused or permitted persons dealing with the agent reasonably to believe the principal had conferred. Mechem on Agency (2 Ed.), sec. 720 and 721, cases cited; Fanning v. Cobb, 20 Mo. App. 577; DeBaun v. Atchison, 14 Mo. 543; Rice v. Groffman, 56 Mo. 434; Cuplés v. Whelan, 61 Mo. 583; Grover, etc. v. Polhenaus, 34 Mich. 247; Conn.

—Now. Guy D. Kirby, Judge. ■ The court erred in refusing to give instructions in the nature of demurrers to the evidence offered at the close of the plaintiff’s case and at the close of the whole case because: (a) There was no evidence to show that the defendant was in charge of the. work in which plaintiff was engaged or was the master of the plaintiff. Rubber Co. v. Reinhardt, 88 111. App. 195; Miles v. Packers Assn., 41 Ore. 617, 69 Pac. 827.

<p>Appeal from Jackson Circuit Court .—Ron. W. O. Thomas, Judge.</p>

—lío». O. A. Lucas, Judge. (1) The plaintiff was not entitled to recover as against any of the defendants unless he showed by the greater weight and preponderance of the evidence that his efforts were the procuring or inducing cause of the loan being made by the National Reserve Bank to the defendants. Duncan v. Hills, 155 Mo. App. 709. (2) To entitle a real estate broker to his commission he must be the procuring and inducing cause of the sale.

—No». A. G.' Southern, Judge. (1) The petition doesn’t'state facts sufficient to constitute a cause of action. (2) Under the pleadings and evidence the finding and judgment should have been for the defendants. The allegations of the petition show that the plaintiff and Hoyt deliberately broke the agreement made with Winter at the time the checks for $1000 were made out and delivered to him.

<p>1. FRANCHISES: Forfeitures: Recovery of Deposit: Contracts: Construction. Where a contract is so worded as to cause it to be the subject of diametrically opposite constructions by the parties thereto, it is not so plain and unambiguous as to limit the court to its terms in a judicial construction thereof.</p> <p>2. -: -: -: -:--. The cardinal rule in construing a contract is to ascertain its true intent. If the language is so plain that there can be but one meaning to it, then there is no office to be performed by subsidiary aids to construction. But where such is not the case, courts can, in addition to looking at the language of a contract, which is always the highest and most powerful authority in the matter, look at all the circumstances, the subject-matter of the contract, the situation of the parties and the purposes sought to be accomplished.</p> <p>3. -: -: -: -: -. A city granted a franchise to a gas company to sell natural or artificial gas. It was required to furnish artificial gas so long as it was generally used in the city, but was required to furnish natural gas only so long as it was possible to do so. Held, that if it was never reasonably possible to furnish natural gas, the company was not required to bring natural gas to the city, and in a suit to recover a deposit made to insure compliance with the terms of the contract in this respect, it was error to sustain a demurrer to plaintiff’s evidence on the question of the reasonable possibility of obtaining natural gas.</p> <p>4. -: -: -: -: -. A construction which makes a contract mean that a company having the exclusive authority tó vend gas is not required to furnish or sell natural gas unless it is reasonably possible to do so, and yet is required to bring that kind of gas at ail events to the city limits under penalty of $5000 forfeit if it fails to do so, is not a reasonable construction. All parts of a contract must be considered and they must be harmonized if possible, but the construction placed thereon must be reasonable and natural.</p> <p>5. -: -: Penalty or Liquidated Damages. Whether a deposit can be considered as a forfeiture or as liquidated damages depends upon the facts of the case and is not controlled by what the contract calls it. Liquidated damages can be recovered only when there is more than nominal damages to the other- party. If there has been no damages sustained, the deposit can only be regarded as a forfeiture. Forfeitures are not looked upon with favor, but contracts providing therefor will be strictly construed in determining whether or not a forfeiture will be declared.</p> <p>6. -: -: Recovery of Deposit: Limitations. The right to sue at any time before the Statute of Limitation has run remains unimpaired during that whole time unless the plaintiff has in the meantime done something to bring the principle of estoppel into action.</p>

—Hon. W. O. ■ Thomas, Judge. • (1) Under the United States statutes if any cause of action exists it is under the United States laws and not under the State courts. U. S. Compiled Statutes (1911 Supp.), sec. 1, pp. 1316, 1317, 1322, 1323; Railroad v. Maerkl, 198 Fed., 1.

—Hon. Jos. A. Guthrie, Judge. (1) The defendants having made an offer by telegram for the sale of potatoes to plaintiff and the plaintiff having accepted the same by telegram, a complete contract was made. An effort on the part of one or both of the parties thereafter to pnt said contract in more formal shape did not make the contract incomplete. McDerMott v. Centennial, etc., Assn., 24 Mo. App. 73; Meissner v. Standard, etc., Co., 211 Mo. 112, 133; Hudson v. Rodgers, 121 Mo.

—Ron. O. A. Lucas, Judge. (1) The plaintiff having alleged acts of negligence, the burden was clearly on her to sustain same by substantial evidence. Gibler v. Railroad, 148 Mo. App. 475; Bean v. Transit Co., 212 Mo. 331.

<p>1. NEGLIGENCE: Measure of Damages: Facts and Circumstances of Negligence. In an action by the widow of a passenger on a street railway for the death of her husband through the - negli- ' gence of the company’s servants, under Sec. 5425, R. S. 1909, in order that the jury should be informed so as to intelligently exercise their discretion in fixing upon the amount of damages, evidence should be received showing, not only the pecuniary loss occasioned by the death, but also the facts and circumstances constituting the negligence on the part of the company attending the killing.</p> <p>2. -: Deceased Husband: Business Man. A deceased husband killed through the negligence of a street railway company, though not engaged in what is popularly known as an active business, is still a business man with an earning capacity, if he cares for and manages his estate, loans his money, collects the income and supports his family; and his death is a pecuniary'loss, which must be considered by a jury in exercising their discretion as to the amount of damages to be allowed.</p> <p>3. -: Contributory Negligence: Pleading. Contributory negligence is a defense which must be pleaded in order to justify instructions on that character of defense.</p> <p>4. -: Husband and Wife: Evidence. A husband and wife were in the act of taking a street car on their way to church when the former was killed through the negligence of the company. In an action for damages by the widow, it was not improper to allow her to testify where they were going; as that was a statement of fact and not a conversation or communication received from the husband, in the sense of the statute.</p> <p>5. -i—: Excessive Damages. Under a statute permitting the facts and circumstances attending the killing of a passenger on a street railway to be shown as bearing on the question of damages, $6000 was held not to be excessive.</p>

—Hon. O. A. Lucas, Judge. (1) Under the facts in this case no evidence was admissible to vary the terms of the written consent and waiver of damages executed by plaintiff. Crim v. Crim, 162 Mo. 544, 553; Paris Mfg. & Imp. Co. v. Carle, 116 Mo. App. 581; Ely v. Sutton, 177 Mo. App. 546,162 S. W. 755; Johnson v. Covenant Mutual Life Ins. Co., 93 Mo. App. 580; Thorne, McFarlane & Co. v. Warfflein, 100 Pa. St. 519; Callanan v. Judd, 23 Wis. 343.

—Now-. A. G. Southern, Judge. (1) An irregularity, in the meaning of the law, may be said to be want of adherence to some prescribed rule or method of procedure consisting either in omitting1 to do something that is necessary for the due and orderly conduct of the suit, or in doing it at an unreasonable time, or in an improper manner. Cross v. Gould, 131 Mo. App. 595; Tidds Practice (4 Ed.), 512; Downing v. Still, 43 Mo. 3091; Clouser v. Noland, 72 Mo.

<p>Appeal from Jackson Circuit Court.—Hon. Frank G. Johnson, Judge.</p> <p>(1) Defendant’s demurrer to the evidence should have been sustained because, with full knowledge of the defective condition of the walk, plaintiff was injured while exercising no care at all. Wheat v. St. Louis, 179 Mo. 572; Cohn v. K. C., 108 Mo. 387; Woodson v. Railroad, 224 Mo. 685; Knight v. Baltimore, 97 Md. 647; Diamond v. Kansas City, 120 Mo. App. 185; Welch v. McGowan, in Sup. Ct., not reported; Craine v: Met.,' 246 Mo. 393. (2) The court not only erred in refusing to direct a verdict for the city because of plaintiff’s negligence, but it erroneously told the jury that as a matter of law the plaintiff had a right to use this walk provided'he exercised reasonable care after he got upon it. Wheat v. St. Louis, 179 Mo. 572; Erie v. Magill, 101 Pa. St. 616; Durkin v. Troy, 61 Barb. (N. T.) 437; Craine v. Railroad, 246 Mo. 393; Welch v. McGowan, (Sup. Ct., not reported).</p>

— Hon. O. A. Lucas, Judge. (1) The proceedings of the court in this case deprived the appellants of property without due process of law and denied to them the equal protection of the law within the meaning of section 30 of article 2 of the Constitution of Missouri and of section 1, article 14, of the' Amendments to the Constitution of the United States. These constitutional provisions were duly invoked by the appellants in paragraph 7 of their motion for a new trial.

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

<p>Appeal from Jackson Circuit Court.—How. A. G. Southern, Judge.</p>

<p>Appeal from Adair Circuit Court.—Hon. C. D. Stewart, Judge.</p>

<p>Appeal from Jackson Circuit Court.—Hon. Jos. A. Guthrie, Judge.</p>

<p>Error to Vernon Circuit Court.—Hon. B. G. Thurman, Judge.</p>

<p>1. MANDAMUS: Township Funds: Statute Proviso: Discretion: Highest Bid. Tlie statute provides that a township board must take bids from bankers of the rate per cent they will pay for the custody of the township funds and must award the funds to the one bidding the highest rate. But a proviso to such statute reserves 'to the board the right" “to reject any and all bids.” It was held, that this invests the board with a discretion to reject the highest bid, if such bid is that of an unfit or improper custodian.</p> <p>2. -: -: Arbitrary Discretion: Mandamus. The discretion invested in a township board to reject bids for the custody of the township funds is a legal and fair discretion exercised in good faith, and not an arbitrary, capricious or oppressive discretion. If the latter is used, mandamus will lie.</p> <p>3. -: -: Illegal Discretion: Vote of Bidder: Mandamus. Where the larger bid of a bank for township funds is rejected and a less bid accepted, because the bank’s officers voted against the members of the township board at the election; it was held that such- act for such cause was an illegel, oppressive and arbitrary exercise of discretion and will be set aside by a proceeding in mandamus.</p> <p>4. -: Bid: Statute: Rate of Interest: Equal Bid. The statute concerning bids for the custody of township funds does not authorize anything in the bid except the rate of interest which will be paid. But if the bidders bid the same per cent, and they are otherwise equally proper custodians of the fund, the board, in deciding between these equal bidders, may consider, that one will furnish one a place of meeting for the board, with fuel and light.</p> <p>5. -: Highest Bidder: Statute. If the bidders for the custody of township funds are equally qualified and proper custodians of the funds and one bids a higher rate per cent than the others, he thereby becomes entitled to the fund under the express terms of the statute.</p>

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

<p>AGENCY: Imposter: Apparent Authority. If the proprietor of a baggage transfer office, by negligence, permits one who is not his agent to be in apparent charge, of his office and who assumes to transact the proprietor’s business by accepting a check from a stranger for the latter’s trunk to be taken to his boarding house, and the appearances are such as would lead a man of ordinary care to believe the imposter was really the proprietor’s agent, the latter will not be permitted to take advantage of the imposter’s lack of authority, when sued for. the loss of the trunk.</p>

<p>Appeal from Jackson Circuit Court.—Hon. Joseph A. Guthrie, Judge.</p>

<p>Appeal from Jackson Oircnt Court.—Eon. D. E. Bird, Judge.</p>

<p>1. INSURANCE: Fire: Warranty: Material to Risk: Where no insurance was permitted upon an automobile of a model prior to 1908, a representation that an automobile, insured with defendant in 1912, was a 1910 model; when in fact it was a model of 1907, the representation was material to the risk as matter of law. Nor does the fact that the misrepresentation was innocently made change or affect the situation.</p> <p>--: -: -. Whenever the misrepresentation would have, or might have, a real influence upon the underwriter either not to underwrite at all or not to underwrite except at a higher premium, it must be deemed material to the risk.</p> <p>3. -: -: -. Although the question of materiality is generally a question for the jury yet “when the risk is undoubtedly material; when it is of such a character as to strike all informed and fair minds alike, then the question of the materiality of the risk is a question of law for the court and should be so declared.”</p> <p>4; -: Brokers; Agent of Insurer or Insured. An insurance broker is, in general, the agent of the insured and not of the insurer. He may, however, become an agent of the insurer if there is any action on its part recognizing him as such or facts from which authority to represent it may be inferred. But the mere fact that the broker solicits the insurance or receives his compensation from the insurance company does not make him its agent.</p>

—Hon. G. A. Galvird, Judge. (1) Hopeless insolvency of McKee & Corman Hardware Company was conclusively shown without denial. This alone, even if no representations whatever, justified rescission. The court so declared (Abst. 27, Dec. Law 1). Mfg. Co. v. Troll, 77 Mo. App. 345; Leedom v. Ward, 38 Mo. App. 432; Elsass v. Harrington, 28 Mo. App. 304.

—Ho». Frank G. Johnson, Judge. (1) The petition states all the facts sufficient to constitute a cause of action for the enforcement of a mechanic’s lien. Sec. 8220, R. S. 1909; Heitzell v. Langford, 33 Mo. 396; Hill v. Price, 81 Mo. App. 456; Bradish v. James, 83 Mo. 313.

<p>Appeal from Macon Circuit Court.— Hon. N.at. M. Shelton, Judge.</p>

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

<p>Appeal fr.om Sullivan Circuit Court.—Eon. Fred Lamb, Judge.</p>

<p>1. FIRE INSURANCE: Damages: Refusal to Pay. The plaintiff sued the defendants on its fire insurance policy for the face of the policy and for damages, and attorney’s fees based on a vex tious refusal to pay the loss. Loss occurred June 25, 1914, and was adjusted by the defendant’s adjuster two or three days later. Proof of loss was made out by plaintiff on August 13th and received at the Company’s office August 18th. On September 2nd plaintiff failing to receive remittance brought this suit. Company contended it had sixty days from August 18th to make payment, therefore, there was no delay or vexatious refusal to pay. Held, that an unexplained delay of three weeks in making payment was sufficient to raise a reasonable inference which the jury might draw that the delay was vexatious.</p> <p>2. -: Vexatious Refusal to Pay: Jury Question. The whole question of vexatious refusal or delay is a matter of fact to be determined by the jury. They must make up their verdict on this issue by a general survey of all the facts and circumstances in the case.</p>

—Hon. W. S. G. Walher, Judge. See. 8, p. 376, Acts 1911 being a statute with a penalty, must be strictly construed. No guess work or inferences should be indulged in the interpretation of penal statutes. The uniform rule is that such statutes should be strictly construed and not extended or enlarged by judicial construction so as to embrace offenses or persons not plainly within their terms. State v. Kooch, 202 Mo. 223, 235.

—Hon. W. 8. G. Walker, Judge. (1) The court erred in overruling defendant’s demurrers to the evidence, because, (a) There is no proof that the logs were loaded improperly in the woods by defendant’s foreman, (b) Because, if it be inferred from the evidence that defendant loaded the car in question, then the inference could go no further than to find that the loading was done by fellow-servants for which defendant would not be liable. Henson v. Pascóla S. Co., 151 Mo.

— Hon. R. G. Ranney, Judge. (1) A plaintiff’s right of recovery is determined by the condition of things at the time the suit is brought and cannot be helped out by events occurring thereafter. Tobin v. McCann, 17 Mo. App. 483; Hudson v. Burk, 48 Mo. App. 314; Werth v. City of Springfield, 22 Mo. App. 12; Lawler v. Vette, 166 Mo. App. 342. (2) An instruction in the nature of a demurrer to the evidence is sufficient to raise the point that the suit was prematurely brought.

—Eon. Frank Kelly, Judge. (1) The demurrer to the evidence should have been sustained, (a) There was no causal connection established between the accident and the negligence charged. There was a total failure of proof that the alleged negligence was the proximate cause of the injury. Warner v. Railroad, 178 Mo. 133; King v. Railroad, 211 Mo. 1; Brick Co. v. Railroad, 17 Mo. App. 624; Foley v. McMahon, 114 Mo. App. 442; Lawrence v. Ice Co., 119 Mo.

<p>1. FIRE INSURANCE: Validity of Average Clause. A clause in a fire insurance policy' covering the contents of several warehouses, that the “policy covers in each of the warehouses in a proportion that the value in each hears to the total value in all,” is valid and is not inhibited by any provision of the Revised Statutes of 1909.</p> <p>2. —--: Average Clause: Coinsurance: Apportionment of. Loss. Where a number of fire insurance policies covering the contents of several warehouses provided that the liability of insurer shall not be greater than the amount “hereby insured shall bear to the whole insurance” and several of the policies also provided that the “policy covers in each of the warehouses in a proportion that the value in each bears to the total value in all,” it was proper, upon a loss occurring, to first ascertain the amount of insurance carried on the property destroyed, under the policies that contained the “average clause,” by taking so much of the insurance specified in such policies as the value of the property destroyed bore to the total value of the property in all the warehouses, and then to apportion hte loss' among all the insurers in proportion to the insurance carried by each on the property destroyed, conformably to the coinsurance clause common to all the policies.</p>

—Row. Charles D. Stewart, Judge. (1) On the death of a decedent the title to his choses in action passes to his representative, and the heir can acquire no title except through administration. Jacobs v. Maloney et al., 64 Mo. App. 270; Be-craft v. Lewis, 41 Mo. App. '546; McMillan v. Wacker, 57 Mo. App. 220; Adey v. Adey, 58 Mo. App. 408; Griswold v. Mattix, 21 Mo. App. 262; Smith v. Denny, 37 Mo. 20; Richardson v. Cole, 160 Mo. 372.

—Hon. W. 8. C. Walker, Judge. (1) The court erred in not granting a continuance to the defendants on the grounds of surprise when the plaintiff was permitted to amend his petition in a material manner, changing the number of feet of timber alleged to be on the land from one million feet to one million five hundred thousand feet. (2) The court erred at the close of plaintiff’s evidence in not giving instruction number 1, in the form of a demurrer to the evidence.

—How. Frank Kelly, Judge. (1) The demurrer to plaintiff’s evidence should have been sustained, and the peremptory instruction requested by defendant at the close of the whole case should have been given. The crowded condition of the handcar was not the proximate cause of the injury. Plaintiff must recover, if at all, on the specific negligence pleaded.

—Hon. Frcmk Kelly, Judge. (1) Where, on a charge of fraud, the construction of the evidence is as consistent with the honesty of -the transaction which plaintiff impeaches as with the contrary, and a doubt exists as to the construction to be given, such doubt should be resolved in favor of the defendant. State ex rel. v. Shelton, 249 Mo. 660; Webb v. Darby, 94 Mo. 621; Chapman v. Mcllreath, 77 Mo. 38; Page v. Dixon, 59 Mo. 43; Dallam v. Renshaw, 26 Mo. 533.

—Root. W. 8. G. Walker, Judge. (1) A bank cashing a check which has been drawn upon it and which has been raised before presentment for payment to such bank without the knowledge or consent of the drawer can recover from the person to whom payment is made the amount by which said check has been raised. Espy, Heidelback & Co. v. First National Bank, 18 Wall.

— Hon. Charles B. Baris, Judge. (1) Primarily, where the payment is vouuntary, the debtor has the right to direct the application, and if he fails to direct, the creditor has the right to apply the payment to any debt he chooses. Littleton v. Harris, 69 Mo. App. 596; McMillan v. Grayston, 83 Mo. App. 431; 2 Story on Contracts (5 Ed.), sec. 1153. In the absence of directions by either party the law will apply payments to the least precarious. Goetz v. Rice, 26 Mo.

<p>Appeal from Mississippi Circuit Court.—How. Charles B. Baris, Judge.</p>

—Ho». W. S. C. Walker, Judge. (1) The court erred in overruling’ defendant’s demurrer to the evidence at the close of plaintiff’s case and at the close of all the evidence in the case—(a) There is no evidence that the water had been down long enough to clean off the yard, or that the end of the plank with the protruding nail was sufficiently exposed to become noticeable, without the exercise of extraordinary care on the part of defendant, (b) Because there is no evidence…

—Ho». W. 8, C. Walker, Judge, The physical conditons of the crossing of the public road on which respondent was traveling over appellant’s railroad at the crossing where the respondent was injured are such that if at any time after the respondent reached the point on the public road 325 feet from the railroad crossing, if he had looked for an approaching train he could have seen it 2000' feet away.

—Eon. B. E. Dyer, Judge., (1) The burden of proof was upon the plaintiff to establish the fact that the death of William N. Wright was cauesd by bodily injury, effected through violent, external and accidental means, and that this alone caused his death. Shanberg v. Fid. & Cas. Co., 158 Fed. 1; Natl. Masonic Assoc, v. Shryock, 73 Fed. 774; Stanton v. Trav. Ins. Co., 78 Atl. 317; Smith v. Railroad, 200 Fed. 553; 111. Com. Men’s Assoc, v. Parks, 179 Fed. 794; White v. Ins.

Louis City Circuit Court.—Hon. George H. Shields, Judge. (1) The bond sued on, having been executed after the contract between the plaintiffs and Stefan Herich was executed and delivered, and the work contemplated thereunder begun, is without consideration and void. Ring v. Kelly, 10 Mo. App. 411; Pfeiffer v. Kingsland, 25 Mo. 66; Lafayette Building Association v. Kleinhoffer, 40 Mo. App. 388.

—How. W. S. G. Walker, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence as prayed for by defendant at the conclusion of plaintiff’s evidence and at the conclusion of all the evidence, and erred in not peremptorily instructing the jury that under the law and the evidence plaintiff could not recover and to return a verdict for the defendant, (a) The evidence as dis-' closed by the plaintiff and as a whole, showed that plaintiff as a matter of law…

—Hon. Henry G. Riley, Judge. It was error to permit the plaintiff to testify as to the conversation had between her deceased husband and the appellant. R. S., sec. 6359; Cameron v. Moore, 17 Mo. App. 99'; Kitchen v. Hawley, 150 Mo. App. 497.

<p>1. PRINCIPAL AND AGENT: Selling Agency: Contract Construed. A contract obligated plaintiff to advance money to defendant and to furnish him with beer and ice in his saloon business for five years, and obligated defendant to.use and sell plaintiff’s beer during that time, and on discontinuance of its use, to pay plaintiff a proportionate part of the money advanced. Held, that the contract conveyed the idea that if defendant went out of the saloon business, he would thereafter act as sales agent for plaintiff, but did not obligate defendant to see that plaintiff’s beer continued to be sold exclusively in the saloon after he sold out.</p> <p>2. -: -: -: Obligations of Principal. Under a contract constituting defendant plaintiff’s selling agent for beer, held that there was obligation on the part of plaintiff to furnish defendant with the license required by law to authorize him to act as a selling agent.</p> <p>3. -:-;: Action for Breach: instructions: Assumption of Facts. In an action for the recovery of money advanced under a contract, defended on the theory that plaintiff breached the contract, so as to prevent performance by defendant, held that the use of the word “first” in an instruction that the burden of establishing a breach of the contract rested upon plaintiff and that he must show that defendant was the first to break the contract, and unless he did so, defendant was not liable, was not objectionable as misleading or as assuming that plaintiff breached the contract.</p> <p>4. -: -: Breach: Right of Recovery. In an action by a principal to recover money advanced to his agent, pursuant to the contract of agency, defended on the theory that plaintiff terminated the agency, thereby preventing performance of the contract by defendant, an instruction that if plaintiff, without fault of defendant, terminated defendant’s agency and discharged him, and defendant was ready, able and willing to continue as plaintiff’s agent for the contract term, plaintiff could not recover, was correct, under the rule that a party committing a breach justifying an abrogation of the contract cannot either enforce the contract or recover damages for such breach.</p>

—Eon. James Finch, Judge. The petition stated a cause of action against the defendant and the court erred in sustaining the motion in arrest of judgment as to the first and second count. Sec. 14, Art. 2, Constitution of Mo. 1875; Secs. 1837, 4818, R. S. of Mo. 1909; Coolc v. Pub. Co., 241 Mo. 326; Orchard v. Globe Printing Co., 240 Mo. 575; Sotham v. Drover Tel. Co., 239 Mo. 606; Julian v. Kansas City Star, 209 Mo. 35; Morris v. Sailor, 154 Mo. App. 305; Midland Pub.

—How. Frank Kelly, Judge. (1) The shipment involved in this case was interstate, and therefore, under the evidence, the provisions of the contract of shipment relied on in bar to plaintiff’s cause of action, as well as all other provisions of said contract, were valid and binding on plaintiff. Hart v. Railroad, 112 U. S. 331; Can v. Railroad, 194 U. S. 427; Adam’s Exp.

—Hon. W. 8. G. Walker, Judge. (1) Tbe verdict is against the evidence, against tbe weight of tbe evidence and against tbe law under tbe evidence. There is no evidence in this cause establishing agency to sell real estate. Tbe written authority of tbe agent to sell real estate must be as full as tbe memorandum of sale is required to be and must contain tbe essential terms of contract, to take it out of tbe Statute of Frauds. Johnson v. Fecht, 94 Mo.

Francois Circuit Court.—How. Peter H. Euck, Judge. (1) The. first count of respondents’ second amended petition wholly fails to state a cause of action against appellant; said count wholly fails to allege that the relation of master and servant existed between appellant and respondents—parents of Jerry Dalton.

—Hon. Frank G. Johnson, Judge. The court below sustained defendant’s motion for a new trial on the sole and only ground that be should have sustained its motion for an instruction in the nature of a demurrer at the close of plaintiff’s evidence and at the close of all the evidence, and this plaintiff claims was error and as the court below gave that as his only reason therefor, we discuss it from that viewpoint only.

<p>Appeal from Buchanan Circuit Court.—Ho». Wm. E. Eaynes, Judge.</p>

—Hon. O. A. Lucas, Judge. (1) The several divisions of the circuit court of Jackson county, Missouri, constitute one court, but when a cause is assigned to any one, that division obtains the sole and exclusive jurisdiction thereof independent of each of the other divisions. State ex rel. v. Allen, 235 Mo. 298; Goddard to Use v. Delaney, 181 Mo. 564; State ex rel. v. Eggers, 152 Mo. 485; Haehl v. Bailroad, 119 Mo. 325; Penn v. Beber, 153 Mo.

<p>1. CONTRACTS: Written Instrument: Execution: Denial Under Oath: Admission in Court. Ordinarily, when the execution of a written instrument charged to have been executed by the opposite party is denied under oath, its execution must be proven at the trial before it can be introduced in evidence. But if counsel, in open court admit its execution such proof need not be made.</p> <p>í. PLEADING: Contract: Variance. Where a written contract contains several provisions, those not pertaining to the subject-matter of the suit, nor qualifying or influencing such matter need not be pleaded. If omitted and the contract is introduced in evidence, there is no variance.</p> <p>3. CONTRACT: Evidence. Where a written order for merchandise is referred to in testimony and its contents brought out by each party, it is not material than the paper was not formally put in evidence.</p>

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

<p>Appeal from Jackson Circnit Court.—Hon. Kimbrough Stone, Judge.</p>

—Hon. Jos. A. Guthrie, Judge. (1) Defendant was bound to exercise ordinary care to correctly ascertain and accurately report to plaintiffs the facts about tbe Kansas farm. Switzer v. Connett, 11 Mo. 88, 89 ; 31 Cyc. 1456,1459, 1460'; 4 Am. & Eng. Ency. Law (2 Ed.), 968. (2) Defendant was in a fiduciary relation to plaintiffs and was bound to act with tbe utmost loyalty and good faitb. Failure to do so renders bim liable.

—Ho#. Wm. O. Thomas, Judge. (1) The sheriff’s sale and deed thereunder are null and void, and did not pass any title, the land being a homestead of the execution debtor. Statutes of Missouri, 1865, sections 1 and 2, chapter 3, page 450; Creech v. Childers, 156 Mo. 338 ; Boyles v. Cox, 153 Mo. 242, 2501; Ratliff v. Graves, 132 Mo. 76; Macke v. Byrd, 131 Mo. 682, 688; White v. Spencer, 217 Mo. 242.

—Ho». A. G. Southern, Judge. (1) The court erred in permitting plaintiff to introduce any evidence for the reason that the certificate sued on was never filed in the court and no legal verified copy of the same filed. The pretended verified copy was sworn to by John G. Park, one of plaintiff’s attorneys (Sec. 1841, R. S. 1909, does not permit this). Gewe v. Hanszen, 85 Mo. App. 136.

Cole Circuit Court.—Hon. J. G. Slate, Judge. (1) The court erred in allowing the writing offered as the contract sued on to he read to the jury without proof of execution, the execution thereof having been denied under oath. R. S. Mo. 1909', secs. 1982-3-4-5-6; Julian v. Rogers, 87 Mo. 229; Kelly v. Thuey, 143 Mo. 422; Pope v. Risley, 23 Mo. 185; N. St. L. Savings Ass’n v. Obert, 169 Mo. 507; Polack v. Hannauer, 26 Mo. App. 260.

<p>Appeal from Clay Circuit Court.—Eon. Franh P. Divelbiss, Judge.</p>

—Hon. Wm. G. Ellison, Judge. When the plaintiff with full knowledge of the facts, entered into an appraisal under the terms of the policy to determine the amount of her loss, thereby putting the defendant to trouble and expense, she was estopped to claim in a subsequent suit on the policy that her loss was total or to deny that her loss was partial only. TIarmon v. Stuyvesant Ins. Co., 170 Mo. App. 309.

Circuit Court.—Hon. Fred Lamb, Judge. (1) The court erred in refusing to give demurrer asked by defendant. 30 Cyc. 511; Hukman v. Kunkle, 27 Mo. 326; Blake v. Bank, 219 Mo. 650. (2) A partner cannot execute a note in the name of the firm after its dissolution, even in renewal of a note of the firm, so as to bind any other partner or the firm. Synod v. Schoeneich, 143 Mo. 652; Moore v. Lackman, 52 Mo. 323; Springer v. Cabell, 10 Mo. 640; Friendman v. Punch, 93 Mo.

—Hon. J. O. Slate, Judge. (1) The court erred in allowing Emma Doubikin to give testimony, she being an interested party, and erred in allowing her to give testimony as to statements made by her father in regard to the bank stock in dispute. Statements made by deceased to disinterested third parties were inadmissible. Ray v. Loper, 65 Mo. 470; Nelson v. Nelson, 90 Mo. 460; Meier v. Thieman, 90 Mo. 433; Blazt v. Lester, 54 Mo. App. 233; Hoehn v. Struettmann, 71 Mo.

—Eon. O. A. Lucas, Judge. (1) To create a contract by offer and acceptance the acceptance must be unequivocal, unconditional and in exact accordance with the offer. It must not vary from the offer either by way of omission, addition or alteration. The assent must be absolute and final. Scott v. Davis, 141 Mo. 213-25; Gaus v. Chicago L. Co., 115 Mo. App. 119; Batavia v. Railroad, 126 Mo. App. 15-18; Sarran. v. Richards, 151 Mo.

<p>CRIMINAL LAW: Violation of Missouri Pure Food Act: Keeping Usanitary Places for Storage and Sale of Food. Sec. 2 of the. Act approved March 30, 1911, Laws of Mo. 1911, p. 258, is not worded so as to create one general offense of keeping an unsanitary establishment for the storage and sale of food to the public which may be committed in different modes; nor does it forbid several things of the same general nature in the alternative so that it can be treated as dealing with but one offense whereby all of the forbidden things may be charged conjunctively in one count. The statute specifies the various things which it is unlawful to permit to become unclean, and the means to keep these things clean vary according to their nature. A failure to- observe one would-have no connection with the observance or nonobservance of the other. Consequently, the various offenses contained therein cannot be joined conjunctively in one count, and an information which charges more than one of such offenses is bad and vulnerable to a motion to quash.</p>

<p>Appeal from Eandolph Circuit Court.—No». A. N. Waller, Judge.</p>

<p>1. BILLS AND NOTES: Plea of Payment by Services Rendered: Authority to Accept Payment: Evidence. Where a defendant, upon being sued by a corporation upon a promissory note, admits the execution of the note but defends on the ground that he had an arrangement with plaintiff’s agent to render legal services for plaintiff and have their value credited on said note until it was paid, it is error to admit evidence of services rendered the agent individually without further showing that the agent had authority to make such arrangement. Such authority cannot be inferred from the fact that the agent had general charge of plaintiff’s business.</p> <p>2. -: -: Burden of Proof: Value of Services. The burden of proof is upon the defendant, who admits the execution of the note sued on and pleads payment, to prove that services were rendered plaintiff under an agreement that they were to be paid for by crediting their value on said note. And the evidence must show that the value of the services rendered plaintiff were sufficient to pay the note or that there was an authorized agreement that the services rendered plaintiff were in full payment thereof.</p> <p>3. PRACTICE, TRIAL: Attorney in Role of Lawyer and Witness. It is bad practice, and results in many unforeseen difficulties, for a lawyer to attempt the unhappy experiment of trying the case and being also the main witness therein.</p>

<p>.Appeal from Saline Circuit Court.—Ho». Samuel Davis, Judge.</p>

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

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

—Hon. A. D. Burnes, Judge. (1) Plaintiff’s instruction number 1 is erroneous, because it .directs tbe jury that they may consider the alleged warranty contained in the notice to the tenant, as a part of the contract of sale of the land.' Wood v. Murphy, 47 Mo. App. 539; Brauckman v. Leighton, 67 Mo. App. 245; Hobein v. Freick, 9 Mo. App. 263; Wheelan v. Toebner, 71 Mo. App. 361; Miees v. Summerville, 85 Mo. App. 183; State ex rel.

<p>1. ACCOUNT STATED: Settlement: Balance: Acknowledgment. Where there is a settlement between two parties and a balance struck showing an indebtedness against one of them, this is not sufficient upon which to base an action on an account stated. It must be shown in addition, that the debtor acknowledged, or assented to the balance.</p> <p>2. -: -: Promise: Implication. If on a settlement had between two parties a balance is found against one and he acknowledges, or assents to that balance, the law construes that into a promise to pay it.</p>

<p>Appeal from Jackson Circuit Court.—How. Harris Robinson, Judge.</p>