Volume 189 — Missouri Appeal Reports

— Ho». A. A. Whitsett, Judge. (1) The petition fails to state a cause of action in this: That it fails to allege that the defendant relied upon the warranty and was deceived thereby. Carter et al. v. Black, 46 Mo. 384; Doyle v. Parish, 110 Mo. App. 4.70.

— Ron. Fred Lamb, Judge. (1) The court erred in refusing defendant’s instruction “0,” directing a verdict for defendant, as there is no evidence whatever in this case that a single spark was emitted from an engine on defendant’s railway. Manning v. Railway, 137 App. 635; Campbell v. Railway, 125 Mo, 349; Fitz v. Railway, 243 Mo. 76; Gtibbs v. Railway, 104 Mo. App. 276; Peck v. Railway, 31 Mo. App. 123.

— Ron. B. G. Thurman, Judge. (1) All lands owned by any county, or city, and all other public lands, cemeteries and railroad rights of way, fronting or abutting on any of said improvements, shall be liable for their proportionate part of the cost of such improvement, and tax bills shall be issued against such property as against other property, and any county or city that shall own any such property shall out of the general revenue funds pay any such tax bill, and in any…

— Hon. A. B. Davis, Judge. (1) The Tby-laws, as well as all other sections and provisions thereof, including the terms of the application, were a part of the benefit certificate issued to Thompson, and a part of the contract between him and appellant. Richmond v. Snp. Lodge, 100 Mo. App. 19; Laker v. Royal Fraternal Union, 95 Mo. App. 353; Loyd v. M. W. A., 113- Mo. 19; Gallop v. Royal Neighbors, 167 Mo. App, 85.

<p>Appeal from Daviess Circuit Court. — Ho». Frank B. Klepper, Special Judge.</p>

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

<p>1. CONTRACTS: Sales: Purchase Price. The plaintiff’s assignor sold and delivered to defendant six cream separators, and plaintiff now prosecutes this action to recover the purchase price. The machines were destroyed by fire. The defendant signed a written contract for their purchase, but defended on the ground that he signed the contract in blank and told the agent of the plaintiff’s assignor to fill it in, in accordance with their agreement, that he was to be the agent only. Held, that there is no merit in the defense, and the admissions of defendant that he signed the written contract and afterward accepted a delivery. of the six machines, as being made pursuant to its terms, were sufficient to call for the giving of a peremptory instruction to. the jury to return a verdict for plaintiff.</p> <p>2. EVIDENCE: Parol. Parol evidence will not be admitted to vary the terms of a written contract and the instances in which this rule has not been applied are exceptional and consist of those where a party to a contract, though acting as an ordinary careful and prudent person would have acted, is misled to his injury by some fraudulent trick or contrivance of the other party.</p> <p>3.-: -: -. To permit an attack on a written contract on the ground that it does not express the understanding of the real agreement of the parties, upon the mere excuse that the attacking party did not have time to read it before he signed it, would practically destroy the finality and stability of written contracts and render them useless. ,</p>

<p>Appeal from Boone Circuit Court. — How. David II. Harris, Judge.</p>

— Hon. Arch A. Johnson, Judge. (1) There is no presumption against a voluntary conveyance from parent to child. The burden properly rested upon the plaintiff to prove the exercise of some undue influence by defendant over plaintiff by which the gift was secured.

<p>Appeal from Butler Circuit Court. — Eon. J. P. Foard, Judge.</p>

<p>COURTS: Jurisdiction: Establishing Road: Title to Real Estate Involved: Supreme Court. Proceeding for establishing of a public road. The title to real estate being involved, the jurisdiction of the appeal is in the Supreme Court.</p>

— Eon. G. E. Skinker, Judge. (1) In a suit upon a negotiable note by an assignee, wbo purchased before maturity, and tbe defendant interposes the defense of failure of consideration, the burden is on the defendant to show that plaintiff purchased with notice. Hill v. Dillon, 176 Mo. App. 192.

— Eon. G. E. Skinker, Judge. (1) The objection to the introduction of any evidence should have been sustained. The statement is not sufficient. It nowhere .appears whether the charge was intended to be for board and nursing the deceased or some other person; nor can it be determined, except by conjecture, what amount is claimed; “at twenty dollars per year, $260,” is absolutely meaningless.

— Hon. J. D. Perhins, Judge. (1) The presumption is that an attorney has full power and authority to appear, act for and bind his client in all matters in connection with, incident to or a part of a legal proceeding in which the client may be interested, and a client will be bound by the result of the attorney’s conduct. Markey v. Railroad, 185 Mo. 348; Oemtery Assn. v. McCune, 119 Mo. App. 349; State ex rel. Ponath v. Muench, 230 Mo. 236; Mighogna v. Chiaffareth, 151 Mo.

J. D. Perkins, Judge. (1) The attorneys for defendant abandoned the defense of the cause without notice to such client. Under such, circumstances, even though there was a mistake between the client and the attorneys as to the construction of the letter written by defendant’s president, the rule is that a judgment by default should be set aside and a new trial granted providing the defendant has a good defense. Hall v. McConey, 152 Mo. App. 1. (2).

— Eon. D'avid E. Blair, Judge. (1) Under the laws of this State, this suit was a proper proceeding to determine tlie rights of the parties in the premises, and the petition of plaintiffs was so drawn, that it was the duty of the court to have found and determined whether the plaintiffs had fully paid the defendants all moneys due it, and if so to have entered a judgment in favor of plaintiffs ordering the cancellation of the deed of trust; and if the court found that any…

— Hon. Joseph D. Perkins, Judge. (1) Tbe answers in this case do not set up a plea of former adjudication, and the facts in the record do not support such a plea as there is no identity of cause of action in the two suits. The action pending on appeal in the Supreme Court was for an injunction against trespass. The present action is one to forfeit a lease for the breach of a condition which occurred subsequent to the entry of judgment in the former suit.

— Eon. Guy D. Kirby, Judge. (1) There was an entire failure of proof of the allegations of the petition as to the Blodgett Construction Company, or any of its members and the trial court should have sustained the demurrer interposed at the close of plaintiff’s evidence as to said defendant. Plaintiff must recover if at all upon the cause of action pleaded. Compton v. Railroad, 126 S. ~W. 821, and cases cited.

— Ho». Guy D. Kirby, Judge. (1) There was no consideration for any sale or bill of sale. And there was no bill of sale. To constitute a bill of sale, there must be either a consideration actually paid or agreed to be paid for tbe property.Rosenthal v. Frank, 37 Mo. App. 278; Mills v. Williams, 31 Mo. App. 457; Keiler v. Tutt, 31 Mo. 302-306.

— Hon. L. B. Woodside, Judge. The facts in this case do not constitute res adjudícala. Four conditions must concur to render a matter res adjudícala: 1. Identity of being sued for; 2. Identity of cause of action; 3. Identity of person; 4. Identity of quality in person, (a) There is no estoppel or res adjudicaba among codefendants unless they occupy adverse relations to each other. 24 Am. & Eng.

<p>Appeal from Ozark County Circuit Court. — Eon. John T. Moore, Judge.</p>

— Hon. W. N. Evans, Judge. (1) It is alleged that the fire was set hy .an engine owned or operated hy all of the defendants — the railroad company and its receivers. 'There is an entire failure of proof of this allegation. Smith v. Frisco, 52 S. W. 378; Allen v. Frisco, 184 Mo. App. 492. (2) There was also an entire failure of proof of the allegation that the fire was set by sparks from any locomotive. Fritz v. Railroad, 243 Mo. 62,148 S. W. 74; Gibbs v. Railroad, 104 Mo.

— Hon. John Schmook, Special Judge. The court erred in its instruction on the measure of damages. Absent evidence showing permanent injuries, the court erred in permitting the jury to go into the field of speculation and assess damages for same. Wilber v. Railroad, 110 Mo. App. 689, and cases cited; Biglow v. Railroad, 48 Mo. App. 367; Cherry v. Railroad, 163 Mo. App. 53.

— Son. Guy D. Kirby, Judge. (1) The contract being in writing and definite in its terms and calling for “Golden Eagle,” a well known brand of flour manufactured by plaintiff, there was no implied warranty that the flour was suitable for the defendant’s purpose, and plaintiff complied with the contract by sending “Golden Eagle” flour.

— How. Carr McNatt, Judge. The court erred in overruling the defendant’s objection to the introduction of evidence and in overruling the demurrers to the evidence at the close of plaintiff’s ease and at the close of all the evidence and in refusing to grant defendant’s motions for a new trial and in arrest of judgment, for the reason that under the law at present there is no common-law liability for an injury of this hind.

— How. Arch A. Johnson, Judge. (1) This case both on the petition and on the evidence, rests on the res ipsa loquitur doctrine; and the circumstances shown are such that the mere fact of the occurrence of the accident is no proof of negligence.

— Hon. Guy D. Kirby, Judge. (1) Plaintiff claims that the judgment, against T. A. Miller rendered in 1897, was in aid of the judgment sued on, because he says it was on the appeal bond in that case. It is elementary law that a payment of either one of these judgments satisfies the other. 23 Cyc. Law & Pro., 1493; Freeman on Judgments (2 Ed.), 467; 17 Am. & Eng. Ency. of Law (2 Ed.), 863; Weston v. Clark, 37 Mo. 568, 573.

<p>1. PARTNERSHIP: Liability of Individual Partners: Notice Not to Extend Credit to. Where a seller admits that the liability of one partner for sales to the partnership was terminated by a letter dated October 17, 1912, he will not be allowed to say that an oral notice given October 12, 1912, to give no further credit to the firm or to the other partner on account of the firm, did not accomplish the same result.</p> <p>2. -: Liability of Partners: Principle of Agency Basis For. The authority of one partner to bind other partners is based on the principle of agency and such agency may be terminated by notice.</p> <p>3. -: -: Notice Not to Extend Credit. A partner cannot be held liable for goods purchased by another partner on credit where he notified the seller prior to the sale not to extend credit and that he would not be liable for goods purchased on credit by his partner.</p> <p>4. -: -: Notice Not to Extend Credit: Agreement to Look to Another Partner. Where defendant partner verbally notified one selling goods on credit to the partnership not to extend further credit and the seller agreed with the other partner to look only to him for payment, the partner giving the notice is not liable for goods subsequently sold on credit by such seller.</p>

— Eon. Carr McNatt, Judge. (1) The demurrer should have been sustained. Plaintiff was not entitled to go to the jury as to the first specification of negligence, i. e., the failure to properly light the roundhouse, because he assumed the risk of that negligence. This action is governed by the Act of Congress commonly called the Employer’s Liability Act, and by the rule of decision prevailing in the Federal courts with respect to the construction and operation thereof.

— How. Guy D. Kirby, Judge. (1) The two counts are inconsistent. Each denies the other. The first alleges, that the acts were the acts of the city, that is, were authorized by valid ordinances; while the second count, states that the acts were not the acts of the city, by stating that they were done under void and pretended resolutions or ordinances, or contracts. (An act to be that of the city, must have been authorized by a valid ordinance.

— Hon. Ray Bond, Special Judge. (1) Plaintiff’s petition and proof makes at most, only a case of constructive, implied and indirect defamation of plaintiff, its business and its goods and, under the decisions of the Supreme Court of Missouri and the line of authorities followed By our Supreme Court, affords no ground for equitable relief.

— How. L. B. Woodside, Judge (1) The acts of the board of aldermen and of the various officers of the city are presumed to have been lawfully and properly performed and the burden of showing the contrary is upon him who questions that fact. Paving Co. v. Ullman, 137 Mo. 568; Excelsior Springs v. Ettenson, 120 Mo. App. 222; Paving Co. v. Bath Co., 136 Mo. App. 558; Gist v. Construction Co., 224 Mo. 379; Savings Bank v. Ridge, 183 Mo. 518.

<p>Appeal from Lawrence County Circuit Court. — Ho». Carr McNatt, Judge.</p>

— How. C. 3. SJcinJcer, Judge. (1) The vacation of highways by nonuser is not favored and the presumption will always be-in favor of the continuance of their existence and the court will closely scrutinize the evidence relied on to show nonuser and to establish the vacation of a road by nonuser, the proof of its abandonment must be clear and satisfactory. Elliott on Roads and Highways, sec. 1173; 37 Cyc. 191; Kyle v. Board of Commissioners, 91 Ind. 115.

— Hon.. W. S. G. Walker, Judge. (1) There is no proof that the respondent’s husband was struck by the engine pulling appellant’s train.

— Hon. Frank Kelly, Judge. (1) A cause of action must be prosecuted by the-real parties in interest. Edmonson v. Carriage & Harness Co., 149 Mo. App. 128; Bagnell Timber Co. v. Railroad, 180 Mo. 420. (2) One partner cannot maintain a cause of action for his portion of the amount of the-claim. Amble v. Land Co., 144 Mo. App. 303.

— Son. Guy D. Kirby, Judge; This is an action for damages on, account of a gratuitous bailment, and the evidence is certain that “the plaintiffs knew that the horse so lamed was to he •driven by the women shown in evidence, and the court was in error in giving the instructions one, two, three, four, five, and nine, and especially as to instruction numbered four, which contains the following words: ‘. . . . and they were not relieved from such care by the fact that said horse…

<p>Appeal from Bollinger County Circuit Court. — Eon. Peter H. Huck, Judge.</p>

<p>Appeal from Jasper County Circuit Court, Division Number One. — Hon. Joseph D. Perkins, Judge.</p>

— Fon. L. B. Woodside, Judge.. (1) Appellant was the holder in due course; a purchaser of the note for value and before maturity, and without knowledge of fraud on the part of the original payee in procuring the note. Sec. 10022, R. S. 1909.

— Hon. W. N. Evans, Judge. There was an entire failure of proof of any damage beyond the value of the steer killed, and the verdict is excessive beyond that sum of $45.38 and in no event can stand for a greater sum.

<p>Appeal from Greene County Circuit Court. — How. Guy D. Kirby, Special Judge.</p>

— Hon. J. W. Halliburton, Special Judge. A passenger carrier is not liable for mere accidents or casualties which reasonable prudence could not foresee. 2 Hutchinson on Carriers (3 Ed.), secs. 900, 927; Ham v. Railroad, 24 S. E. 152; Murphy v.. Railroad, 15 S. E. 774.

— Now. Chas. A. Calvird, Judge. (1) Trespassing chickens and likewise cattle and horses could he restrained at common law and the owners thereof were liable in damages for the trespassing of same. 3 Blackstone Com., page 7.; 2 Cyc., page 402, note 73; State v. Neal, 120 N. C. 613, 27 S. E. 81, 58 Am. St. 810'; McLean v. Berkabile, 123 Mo. App. 652; O'’Riley v. Diss, 41 Mo. App. 188; Browney v. Railroad, 102 Mo. App. 446; Clark v. Keliher, 107 Mass. 409.

— Hon. L. B. Woodside, Judge. (1) There was an absolute failure of proof on the part of the plaintiff. Plaintiff’s proof failed in this, that there was no evidence offered by him as to the length of time he worked for the defendant under his alleged contract of employment. Plaintiffs recovery, if at all, must have been for some certain time. He was suing on an express contract.

— Mon. C. M. SMriker, Judge. (1) Asa rule that to create an agistor’s lien there must be a contract between the parties, either express or implied and apply that rule to the facts in this case and it would appear at once that the defendant cannot be entitled to such a lien for the reason that there is not one scintilla of testimony in this entire record that could lead any reasonable person to believe that any sort of a contract existed between these parties for the care and…

— Ron. Joseph D. Perkins, Judge. The jury’s award of damages in this ease is so disproportionate to the actual injury, as shown by the evidence, as to manifestly indicate prejudice on the part of the jury. Ohalanda v. St. Louis Transit Co., 213 Mo. 244, 112 S. W. 249. (a) The plaintiff was entitled to just compensation and no more — she was not entitled to a capitalization of her injury nor to “get rich” by her misfortune. Shohoney v. Railroad, 231 Mo. 131, Ann.

— Rem. G. H. Sldnker, Judge. (1). Parol evidence is not admissible to show that a less sum is due tbe mortgagee than is recited in the mortgage. Patchin v. Pierce, 12 Wen. (N. T.) 61. (2) Whenever the consideration, of a written instrument, goes beyond mere recital and becomes contractual, thereby creating and attesting right, it cannot be varied, by parol testimony. Davis v. Gann, 63 Mo. App. 429.

— Hon. John T. Moore, Judge. (1) The court committed reversible error by permitting plaintiff, over the objections of defendants, to testify to an agreement, as he claimed, with defendant, Laura Davidson, to pay the debt of another, that of Garrison and Davidson, said agreement not being in writing, and the said debt being for more than thirty dollars. R. S. 1909, seos. 2783, 2784; Schmidt v. Rozier, 121 Mo. App. 306; Cash v. Clark, 61 Mo. App. 636; Hurt v. Ford, 142 Mo. 283.

Wayne County Circuit Court. — How. E. M. Bearing, Judge. (1) A municipality can be held for damages only in cases for its failure to use ordinary care to keep its streets in reasonably safe condition for the probable use in the ordinary way. 37 Cyc: 285-286; 28 Cyc. 1358.

— Hon. L. B. Woodside, Judge. (1) A person’s residence is his usual place of abode, his domicile, the place where his habitation is fixed without any present intention of removing therefrom. The place he votes, the center of his affairs. Green v. Beckwith, 38 Mo. 384; Humphreys v. Humphreys, 115 Mo. App. 361; Wyrick v. Wyrick, 162 Mo. App. 736; 14 Cyc. 833; State ex rel. v. Banta, supra; Ramey v. Dayton, 77 Mo. 678. (2) A matter of intention. State ex rel. v. Smith, 64 Mo.

-— Eon. Arch A. Johnson, Judge. (1) The court should have overruled the demurrers to plaintiffs’ second amended petition. A demurrer to a petition confesses the facts and the equities that arise from the facts as stated therein. Williams v. Gferber, 75 Mo. App. 18.

— How. David E. Blair, Judge. (1) The court erred in holding the plaintiff could not recover on the facts stated in the petition. 'Barrie v. Cape Girardeau, 197 Mo. 383 and authorities cited in brief. (2) The court erred in sustaining defendant’s demurrer to the petition. City of Greencastle v. Martin, 74 Ind. 449; Wilks v. Caruthersville, 162 Mo. App. 492, 501; Whitfield v. Carrollton, 50 Mo. App. 98; Flori v. City of St. Louis, 3 Mo.

— Hon. D. E. Blair, Judge. (1) The court committed error in refusing to rule upon the evidence and its admissibility and competency at the time the same was offered. Smoot v. Bankers Life Association, 138 Mo. App. 460. (2) Under the evidence, in this case the judgment should have been for the plaintiff. Plaintiff’s wife’s authority relative to his bank account was fixed by the signature card which was retained by the defendant bank.

Anneal from Jackson Circuit Court. — Ron. Jos. A. Guthrie, Judge. (1) The demurrer offered by the defendant, at the close of the plaintiff’s testimony, should have been sustained. Smart v. Kansas City, 91 Mo.

— How. G. A. Galvird, Judge. The petition stated a cause of action and the court committed error in sustaining the demurrer for the reason that upon filing the petition in bankruptcy any right or title the defendant might have acquired ceased, and upon the adjudication in bankruptcy the title to the fund vested in the trustee.

<p>1. MECHANIC’S LIENS: Pleading: Misjoinder of Parties. The misjoinder of parties plaintiff -or defendant in an action must be raised by demurrer under Sec. 1800, R. S. 1909, and where the facts showing the misjoinder appear on the face of the petition, and a demurrer is not filed, the objection will be deemed to have been waived by answer.</p> <p>2. PRINCIPAL AND AGENT: Joint Liability. The agent and his undisclosed principal cannot be held jointly liable, but they can be sued separately although not to judgment against both, for a judgment obtained against one, although unsatisfied, is a bar to an action against the other.</p> <p>3. -: Contracts. A party who enters into a contract with the agent of an undisclosed principal may, after the principal has been disclosed, proceed against either the agent or against the principal, but he cannot proceed against both, and if he proceeds against one, although unsuccessfully, he cannot thereafter proceed against the other.</p>

— Ron. A. II. Waller, Judge. (1) The mangle machine on which plaintiff was injured was safely and securely guarded insofar as it was dangerous to persons, engaged in their ordinary duties, employed thereabout. Sec. 7828, R. S. 1909; Lang v. Bolt & Nut Co., 131 Mo. App. 146.

<p>Appeal from Lafayette Circuit Court. — No». Samuel Davis, Judge.</p>

<p>1. CARRIERS OF LIVE STOCK:-Delay in Reaching an Intermediate Point. A shipper sued for damages alleged to have been caused by negligent delay in reaching G. an intermediate point by a certain time whereby the stock could get eleven hours for feed and rest instead of five hours required by the Federal Twenty-eight Hour Law. The stock did not reach there in time to enable the carrier to comply with said law, and the shipment reached its destination on time and for the market for which it was intended. There was no provision in the contract that the stock should reach G. at any particular hour, nor that the cattle should have eleven hours rest. The contract provided that the stock- was to be transported in a reasonable time but not by any particular train. Held, that the carrier, having performed every legal duty devolving upon it by reason of the contraót and growing out of the relation created thereby, was not liable.</p> <p>2. -: -: Interstate Shipments. In an interstate shipment the liability of the carrier is to be determined in the light of Federal legislation and the construction placed thereon by the National courts. Such liability arises out of, and must be measured by, the shipping contract and the duties which the law imposes upon the carrier by virtue of the relation which the contract created.</p> <p>3. -: --: -: Feeding and Watering of Stock. Under the common law the carrier was free to exercise its own judgment as to when stock transported by it should be fed and watered, subject only to the requirement that this should be done at reasonable intervals and that the needs of the stock should not be unreasonably neglected. But the enactment of the Federal Twenty-eight Hour Law was a legislative direction that cattle could be kept on board cars without feed or water for twenty-eight hours. And when the carrier has performed all it agreed to do and all the law requires of it, there can be no liability when the liability claimed is not on account of some act or wrong independent of and aside from the contract.</p>

— Hon. A. H. Waller, Judge. (1) The justice had no jurisdiction of the subject-matter for the reason that no affidavit was filed. Norman v. Horn, 36 Mo. App. 419; Hargadine v. Yan Horn, 72 Mo. 370; Burnett v. McCluey, 78 Mo. 676; Bank v. Carton, 40 Mo. App. 113. (2) The justice had no jurisdiction of the person of appellant for the reason that no process was served as provided by law. R. S. 1909, sec. 7641, 7646, 7647.

— Hon. Jos. A. Guthrie, Judge. (1) The failure of the Legislature to provide specific methods of administering sec. 9801 does not make that section noneffective. Householder v. Kansas City, 83 Mo. 488; State ex rel. v. Taylor, 224 Mo. 393; Walker v. Sedalia, 74 Mo. App. 70'; 1 Cyc. 706. (2) Where a petition does not state sufficient facts to make a cause of action its insufficiency cannot be corrected by any other pleading of the plaintiff, or of any other party.

<p>1.DAMAGES: Nuisance: City Sewage: Prescriptive Right. A city does not acquire a prescriptive right to flow sewage upon another’s land by doing so for more than ten years where the act of the city was not done under any claim of right and was not adverse in its character.</p> <p>2. -:-: -: -. To establish a prescriptive right to maintain a nuisance it must be shown that the user has continued in substantially the same way and with equally injurious results for the entire statutory period.</p> <p>3. -: -: -:-: Continuing Nuisance. Where the nuisance -created is a continuing one, an owner of property affected thereby, who purchases after its erection may recover damages for injuries subsequent to his purchase.</p> <p>4. -: - — : -: -: -: Subsequent Purchaser. Where there has been no condemnation by the city -nor suit by the former owner, a purchaser of property who bought subsequent to the opening of a city sewer into a stream flowing through the property, whereby sewage is cast upon and injures the same, and a continuing nuisance is created, may maintain a suit for damageá accruing since his purchase by reason of an increased flow of such sewage, but the same must be for all future time.</p>

<p>INSURANCE: Pleading: Town Mutual Insurance Companies. Where a town mutual fire insurance company wishes to avail itself of the defenses provided in Art. XII, Ch. 61, R. S. 1909, it must plead and prove that it was entitled to assert those defenses under the aforesaid statute, otherwise they will he considered without merit.</p>

<p>Appeal from Bates Circuit Court. — How. C. A. Calvird, Judge.</p>

— lion. Geo. W. WcmamaJcer, Judge. (1) The judgment for maintenance is not a final judgment but is one subject to be vacated as circumstances require. Sec. 8295, R. S. 1909; Creasey v, Creasey, 168 Mo. App. 98. (2) Tbe Oklahoma divorce is valid and binding on the parties to this suit, defendant residing in that State and plaintiff appearing and defending suit. Cheener v. Wilson, 9 Wal. 108, 19 L. Ed. 604, this case approved in Haddock v. Haddock, 26 Ct. Rep. 525, 527.

<p>Appeal from Miller Circuit Court. — lion. J. G. Slate, Judge.</p>

<p>Appeal from Buchanan Circuit Court. — Hon. Win. D Bush, Judge.</p>

— Eon. Thomas F. Ryan, Judge. (1) The defendant is a merchant and should pay the tax required of merchants under the heading, “retail merchants whose gross sales are under $25,000,” sec. 11617, R. S. 1909. State v. Martin, 5 Mo. 361; Kansas City v. Crush, 151 Mo. 131; Lansdale v. Bra-shear, 3 T. B. Mon. (Ky.) 330; Wakeman v. Hoyt, 28 Fed. Cases, No. 17051; In re Eeles, 8 Fed. Cases, No. 4302; Campbell v. Finck, 2 Duv. (Ky.) 108; Kansas City v. Yindquest, 36 Mo.

— Hon. D. H. Harris, Judge. (1) The measure of damages for breach of a contract of sale is the difference between the contract price and the market value at the time and place of delivery under the contract. 35 Cyc. 633; Gill v. Commission Co., 84 Mo. App. 456; Howard v. Haas, 131 Mo. App. 499; Chalice v. Witte, 81 Mo. App. 84.

— How. Won. H. Haynes, Judge. (1) Special ordinance number 6873 is invalid because it provides for more than one improvement in the same ordinance, and contains more than one subject which is not clearly set out in the title. Sec. 8555, R. S. 1909; Boorman v. City of Santa Barbara, 4 Pac. 31; Mayall v. City of St. Paul, 15 N. W. 107; Weckler v. Chicago, 61 111. 142; Mendenhall v. Clugish, 84 Ind. 94.

— Hon. Chas. H. Mayer, Judge. (1) Plaintiff’s petition does not state a cause of action. Devlin on Deeds (2 Ed.), sec. 27; Insurance Co. v. Landis, 50 Mo. App. 116. (2) Plaintiff fell far short of making a case, or any issues that could be submitted to the jury. Harkless v. Barton County, 85 Mo. 619. (3) It is evident from plaintiff’s own testimony, that he relied on his own judgment when he took the quitclaim deed.

<p>Appeal from Clay Circuit Court. — He». Frank P. Divelbiss, Judge.</p> <p>(1) Plaintiff is riot entitled to recover. Knorpp v. Wagner, 195 Mo. 663; Forbes v. Dunnavant, 198 Mo. 193; Livengood v. Lead & Zinc Co., 179 Mo. 229; Hnlse v. Telephone Co., 164 Mo. App. 126; Roberts v. Telephone Co., 166 Mo. 370 ; Lee v. K. C. Gas Co., 91 Mo. App. 612; Isaacson v. Wisconsin Telephone Co., 119 N. W. 804. (2) Plaintiff was guilty of negligence as a matter of law. Hnlse v. Telephone Co., 164 Mo. App. 126; Myers v. Glass Co., 129 Mo. App. 556; Christy v. Railroad, 131 Mo. App. 266; Glasscock v. Dry Goods Co., 106 Mo. App. 657. (3) The court erred in giving plaintiff’s instruction number one. Bradley v. Railroad, 138 Mo. 293; Bennett v. Lime Co., 146 Mo.. App. 565; Minnier v. Railroad, 167 Mo. 112; Wilson v. Railroad, 169 Mo. App. 422. (4) The court erred in refusing to give defendant’s instructions B, D, E and F. Coin v. Lounge Co., 222 Mo. 512-13; Halloran v. Iron & Foundry Co., 133 Mo. 471; Epperson v. Tel. Co., 155 Mo. 346; Glasscock v. Dry Goods Co., 106 Mo. App. 657; Shimp v. Stove Co., 173 Mo. App: 423.</p> <p>(1) Where the facts bearing on the issue of contributory negligence are disputed, or where they are undisputed but admit of different constructions and inferences, the issue must be left to the jury. Eckhard v. St. Louis Transit Co., 191 Mo. 593. (2) Negligence is not a fact susceptible of direct proof, but it is an inference deducible from the evidence and its existence may be an issue, though the facts on which it is based are not in dispute. Morgan v. Mining Co., 141 S. W. 735. (3) The mere fact that the plaintiff knew of the defective condition of the car is not sufficient to bar recovery. The danger must be glaring and threaten immediate injury, or such that a person of ordinary prudence would not have used the same. Clippard v. Transit Co., 202 Mo. 432; Cole v. Transfer Co., 183 Mo. 81. (4) Under the evidence this question was one that should have been submitted to the jury. . Morgan v. Mining Co., 141 S. W. 741; Huhn v. Railroad, 92 Mo. 440; Soeder v. Railroad, 100 Mo. 673; Hamilton v. Rich Hill Mining Co., 108 Mo. 364; Dakan v. Chase Merc. Co., 197 Mo. 238; Weston v. Mining Co., 105 Mo. App. 702; Denker v. Milling Co., 135 Mo. App. 340.</p>

<p>Appeal from Buchanan Circuit Court. — Hon. Wm. D Busk, Judge.</p>

— Eon. E. B. Shain, Judge. (1) A party to a contract is not required to give notice of rescission instanter or immediately upon the discovery of a fraud but may do so within a reasonable time. AlthofE v. Transit Co., 204 Mo. 170; Long v. Machine Co., 158 Mo. App. 665; Publishing Co. v. Hull, 81 Mo. App. 280; Manley v. Crescent Novelty Co., 103 Mo. App. 140.

— Hon. Wm. H. Haynes, Judge. (1) The sewer for which the tax bill in suit was ■issued is in fact a public or main sewer. Sec. 8765, R. S. 1909. (2) An ordinance levying a special tax for a local improvement is void when it can be shown that it is unreasonable and an arbitrary abuse of power. Corrigan v. Gage, 68 Mo. 541; Plattsburg v. Hagenbush, 98 Mo. App. 671; Hawes v. Chicago, 158 111. 653; Beach on Public Corporations, sec. 90.

<p>Error to Macon Circuit Court. — No». Nat M. Shelton, Judge.</p>

— -Uo». D. H. Harris, Judge. (1) The liability of the defendant cannot be extended beyond the express terms of his contract. He is entitled to stand on the strictness of his obligation. Sterling v. Wolf, 163 111. 467, 45 N. E. 218; Tonng v. Tonng, 21 Ind. App. 509, 52 N. E. 776; G-reenfield Lbr. & Ice Co. v. Parker, 159 Ind. 571, 65 N. E. 747; Dunlap v. Eden, 15 Ind. App. 575, 44 N. E. 560; 1 Brandt on Sur. & Guar. (3 Ed.), sec. 106.

— Eon. 0. A. Lucas, Judge. (1) The court erred in refusing to give appellants’ instruction in the nature of a demurrer to the evidence at the close of the plaintiff’s case; as well as appellants ’ instruction in the nature of a demurrer at the close of the entire case. Andrews v. Lynch, 27 Mo. 167; Syme v. The Indiana, 28 Mo. 335; Ivory v. Carlin, 20 Mo. 142; Staley Co. v. Wallace, 21 Mo. App. 128; Houck v. Bridwell, 28 Mo. App. 644; Boatmen’s Bank v. McMenamy, 35 Mo.

<p>1. EXECUTIONS, Motion to Quash: Judgments. The plaintiff brought suit against defendant in a justice of the peace court, on a judgment alleged to have been rendered before another justice of the peace, November 16, 1894. Defendant was duly served and judgment was rendered on return day by default. A transcript was filed in the circuit clerk’s office, and execution was issued and a levy made on certain property of the defendant. Defendant then filed a motion to quash the execution and levy on the ground that there was no valid judgment upon which execution and levy and advertisement thereunder made can be based, and that the execution was issued without authority of law and is irregular and void. The court sustained the motion and plaintiff appealed. I-Ielcl, that defendant’s attempt to make the motion to quash fulfill the functions of an appeal to the circuit court should not have been countenanced.</p> <p>2. -: -. The defenses that the original judgment barred by limitations was merged in the circuit court judgment and that the. latter judgment is conclusively presumed to have been paid, were waived when defendant made default in the justice court and stood by without taking an appeal until the judgment in that court had become a finality.</p> <p>3. -: Validity: Jurisdiction. The validity of a judgment cannot be impeached on a motion to quash an execution issued on it. Such a motion cannot be based on the ground of mere error or irregularity in the judgment. The jurisdiction not being questioned and the judgment not having been reversed, vacated, or set aside, such a motion would constitute a collateral attack upon it.</p>

<p>1. ACCOUNTING: Probate Courts: Res Adjudicata. Where in the judgment of final distribution of an estate certain notes are turned over to the widow, as property which had belonged absolutely to the testator and in which he had bequeathed to her a life estate, she being a party to that proceeding was bound by it, and neither she nor her heirs could thereafter attack the judgment collaterally.’</p> <p>2. -: -: -. Final settlement and distribution of an estate is a bar to any showing that notes held by the executors did not belong to the estate in whole or in part and the issue aired by the pleadings must be held to be res adjudicata as to the parties then before the court and their privies.</p>

Louis City Circuit Court. — How. Rhodes E. Cave, Judge. (1) Where one person merely requests a physician to perform services for another, the law does not raise an implied promise, on the part of the one making the request, to pay for the services so rendered. Meisenbach v. Cooperage Company, 45 Mo. App. 232; Jesserich v. Walruff, 51 Mo. App. 270; Ghio v. Schaper 'Bros. Mercantile Co., 180 Mo. App. 686, 163 S. W. 553; Morrell v. Lawrence, 203 Mo. 363.

Louis City Circuit Court. — flow. T'hos. G. Hennings, Judge. (1) Contracts of guaranty issued by surety companies are. not entitled to the same favorable construction, so far as the guarantors are concerned, as personal bonds, but, being in every essential like ordinary insurance policies, they are to be construed, like these, most strongly against the company. 19 Cyc. 517; Lescher v. The U. S. F. & G. Co., 239 111. 502; Bryant v. Am. Bonding Co., 77 Ohio St. 90; Am.

Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge. (1) Under the facts stated in the petition plaintiff is not entitled to maintain this action: (a) Money alleged to have been paid to officer by plaintiff was with the knowledge at the time of payment that it was to he applied by the officer in payment of debt due from another. 10 Am. & Eng. Ency. of Law, p. 344; Claflin v. McDonough, 33 Mo. 412; Brewing Co. v. St. Louis, 187 Mo. 367; 22 Am. & Eng.

Louis Court of Criminal Correction. — - Hon Victor H. Falkenhainer, Judge. (1) The evidence is not sufficient to support the findings of the court sitting as a jury, nor the judgment rendered and entered thereon. State v. Langley, 248 Mo. 545; State v. Thornton, 232 Mo. 298; State v. Doyle, 68 Mo. App. 219; State v. Linck, 68 Mo. App. 161; State v. Scatchwell, 68 Mo. App. 39.

Louis City Circuit Court. — Hon. Leo 8. Rassieur, Judge. • (1) A reasonable degree of diligence on part of C. H. Bartlett, assignee, is all tbat is necessary to entitle him to file an intervening petition in said cause, and especially is this true when, by filing of said intervening petition before distribution of said funds, no substantial injury would result in determining who is justly entitled to said fund. Park v. Coyne, 156 Mo. App. 379.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) The court erred in admitting in evidence the contract in writing, dated November 27, 1905, as said contract is not the contract declared on in the petition. Koons v. St. Louis Car Co., 203 Mo. 227; Clements v. Yeats, 69 Mo. 625;' Smith v. Shell, 82 Mo. 219; Henning v. U. S. Ins.

Louis City Circuit Court. — No». J. Hugo Grimm, Judge. (1) In an action of replevin, tbe burden is on tbe plaintiff under a general denial to establish bis title to tbe property in question, and bis right to tbe immediate and exclusive possession thereof. Morgner v. Biggs, 46 Mo. '65; Phillips v. Schall, 21 Mo. App. 38; Gray v. Parker; 38 Mo. -165; Andrews v. Castocan, 30 Mo. App. 29; Steffen v. Long, 165 Mo. App. 254.

Louis City Circuit Court. — How. Leo 8. Bassieur, Judge. (1) The court erred in overruling the defendant’s demurrer to the evidence because: (a) There was no evidence that the defendant was neglectful in the way in which it maintained any portion of its mine intended for the use of deceased or so situated that in the line of his duty he would he exposed to danger therefrom, (b) The deceased was guilty of contributory negligence, directly causing his death, (c) A servant…

Louis City Circuit Court. — No». J. Hugo Grimm, Judge. (1) When plaintiff shipped to defendant, at Minneapolis, a carload of potatoes such as the contract called for (and the jury so found), when said car was refused plaintiff had three methods of indemnifying itself: First, it could have stored the potatoes for the defendant and sued for the entire purchase price; second, it could sell the potatoes and recover from the defendant the difference between the contract price and…

Louis City Circuit Court. — How. George G. Hitchcock, Judge. (1) No one can be made a beneficiary unless be comes within tbe classes named in tbe laws of tbe order, and tbe designation of tbe beneficiary as belonging to a certain class, if false, avoids tbe policy. Keener v. A. O. U. W., 38 Mo. App. 543; Wagner v. Benefit Society, 70 Mo. App. 161; Sup. Council v. Niedlet, 81 Mo. App. 598; Dennis v. Modem Brotherhood of America, 119 Mo.

<p>Appeal from St. Louis Court of Criminal Correction. Eon. V. E. Palkenhainer, Judge.</p>

Louis Court of Criminal Correction.— Eon. Galvin N. Miller, Judge. (1) The appellants having been indicted by a grand jury, the St. Louis Court of Criminal Correction acquired no jurisdiction and its judgment is a nullity. State v. Cariot, 137 Mo. App. 305. (2) Even if the court had jurisdiction the indictment charges no offense, and cannot be the basis of a verdict and judgment.

<p>1. CONTRACTS: Construction: Breach. Plaintiff, a quarry company, entered into a contract with, defendant railroad company, by which plaintiff agreed to pay defendant $300, to be used in constructing a switch to plaintiff’s quarry, and by which defendant agreed that when plaintiff had shipped sufficient freight from its quarry to yield $1000 in freight charges, defendant would refund ten per cent of the amounts thereafter collected on freight bills, until the $300 was repaid. In an action for damages for the alleged breach of this contract, predicated upon defendant’s removal of the switch ten years after it had been laid in accordance with the contract, held that the contract reveals an implied obligation that the switch should remain for such a length of time as would be reasonably sufficient, in due course, considering the business, to permit plaintiff to make sufficient shipments to yield the $300 refund to it according to the terms of the contract, but beyond this implied obligation there is no undertaking requiring defendant to maintain the switch for any definite period, and hence in the absence of a showing concerning the shipments made and the amount of freight paid, or that plaintiff had not had a reasonable time to reimburse it for its outlay, no right of recovery existed.</p> <p>2. -: -; -. Plaintiff, a quarry company, entered into a contract with defendant railroad company, by which plaintiff agreed to pay defendant $300, to be used in constructing a switch to plaintiff’s quarry, and by which defendant agreed that when plaintiff had shipped sufficient freight from its quarry to yield $1000 in freight charges, defendant would refund ten per cent of the amounts thereafter collected on freight bills, until the $300 was repaid. Several years after the switch had been constructed, a bridge, which formed part of it, was washed out, and after defendant had failed to rebuild the bridge, on plaintiff’s request, plaintiff voluntarily rebuilt it. In an action to recover the amount expended in rebuilding the bridge, held that -the contract merely obligated defendant to put the switch in proper condition in the first instance and did not impose upon it the duty of maintaining it; held, further, that inasmuch as plaintiff voluntarily íepaired the bridge, the materials placed therein became the property of defendant, under the principle that one may not, in his benevolence, improve the property of another and then recover compensation therefor.</p> <p>3. -: Quantum Meruit; Gratuitous Services. A person may not, in his benevolence, improve the property of another and then recover compensation therefor, because such would amount to thrusting an obligation upon one without his consent.</p>

<p>Error to St. Louis City Circuit .Court. — New. George G. Hitchcock, Judge.</p>

Louis City Circuit Court. — How., Leo . 8. Bassieur, Judge. Tlie court erred in refusing to give defendant’s demurrer at the close of plaintiff’s case because: (a) There was evidence of a bona-fide dispute as to the validity of the policy and there was no evidence of any fraud, deception, false representation or over-reaching on the part of the defendant company in effecting the compromise and settlement with plaintiff, made after she demanded payment of the policy.

Louis City Circuit Court. — Ho». J. Hugo Gri/mm, Judge. The court erred in refusing to grant defendant’s motion to dismiss its appeal, at the close of plaintiff’s ■evidence in chief and after the court had refused to give a peremptory instruction in the nature of a demurrer to the evidence. Pullis ,v. Pullis Bros. Iron Co., 157 Mo. 565; Earl v. Hart, 89 Mo. 262; Sublette v. St. Louis, 96 Mo. App. 115; Kain v. Tuohy, 80' Mo.

Louis City Circuit Court. — How. Rhodes E. Cave, Judge. (1) “An attorney who appears for a party has a lien upon his client’s cause of action or counterclaim, which attaches to the verdict, report, decision or judgment in his client’s favor, and the proceeds thereof in whosesoever hands they may come; and cannot be affected by any settlement between the parties before ■or after judgment.” Sec. 964, R. S. 1909.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The trial court properly excluded the justice’s transcript, offered in evidence by the defendant for the purpose of proving that the plaintiff had instituted an action in a justice’s court in the State of Illinois, on the account in issue- in the case at bar, against Berthell Wallis, and recovered judgment thereon against him, for the reasons: First, that the transcript was certified to by the deputy clerk of the '…

Louis City Circuit Court. — lion, J. Hugo Grimm, Judge. (1) (a) Mere abstract propositions of law serve no good purpose, and tend strongly to confuse and mis- . lead the jury. And where, as in the case at bar, all the instructions given at the request of respondent are mere abstractions, and are not explanatory of the law in its application to the facts in evidence, they will be regarded as so misleading to the jury as to cause a reversal of the judgment.