Volume 19 — Missouri Appeal Reports

Joseph P. GtRubb, Judge. The facts are stated in the opinion. I. Plaintiff acted as the agent of defendant in-procnring the contract for budding the gas works and was entitled to his percentage of five per cent. And it can make no difference whether he was originally constituted the agent before his services, or whether his acts were ratified by defendant afterwards.

Gr. D. Bubgess, Judge. The facts are sufficiently stated in the opinion of the court. I. The false statements and fraudulent representations must be in regard to the existence or non-existence 'of material facts affecting the subject matter of the contract. Smithers v. Bireher, 2 Mo. App. 499. Brownlee v. Hewitt, 1 Mo. App. 365; Torry v. Charter oak Fife Fiswrance Co., 3 Mo. App. 595; Stevens v. Rainwater, 4 Mo. App. 292.

Gr. D. Bupgess, Judge. The instructions numbered one, two, and three, asked by the plaintiff, and referred to in the opinion of the court, are as follows : “1.

H. W. Brownell, Special Judge. The facts are stated in the opinion. I. In this state it is a good defence to a charge of carrying concealed weapons, “if the defendant shall show that he has been threatened with great bodily harm or had good reason to carry the same in the necessary defence of his person, home, or property. Rev. Stat., sect. 1275, p. 224. And the threatening letter addressed to defendant and tacked upon' his gate, should have been admitted in evidence.

James B. Gantt, Judge. Statement of case. This is an action of replevin for the recovery of certain property alleged to belong to a church, known as “ The First Baptist chnrch of Crescent Hill,” in Bates connty. The action was instituted in a justice’s court, and removed, at the instance of defendants, to the circuit court on writ of certiorari.

<p>Appeal from Polk Circuit Court, Hon. R. W. Fyan, Judge.</p>

Joseph P. Crubb, Judge. Statement of case by the court. On the fourth day of March, 1876, a petition was filed with the clerk of the circuit court in the case of Daniel F. Bombeck v. William Devorss. As to that petition the record in this case shows only this. The petition itself is not in this record. On the nineteenth day of January, 1877, Daniel F. Bombeck filed an amended petition, making William Devorss, Jefferson B. Baker and Eli Moore co-defendants.

<p>3. Judgment — Ground for Injunction Against. — A judgment rendered by a justice of the peace on Thanksgiving day is not void. Rev. Stat., sec. 2848. And if it were void that fact alone is no ground for enjoining the execution of such a judgment. Stockton, Exec’r, v. Ransom, Adm’r, 60 Mo. 539.</p>

Ben. V» Alton, Judge. The facts are stated in the opinion. I. This being an action against an administrator, plaintiffs were not competent as witnesses, and their depositions should have been excluded. Rev. Stat.,, sect. 4010. II. The receipt found by the administrator among-the papers of Jonas L. King, deceased, was prima facieevidence of a settlement made by him with plaintiffs as. therein stated. • III.

<p>Appeal from Pettis Criminal Court, Hon. John E. Ryland, Judge.</p>

James M. Davis, Judge. Statement of case by the court. This is a suit on a note brought in the Livingston circuit court and tried upon plaintiff’s first amended petition, as follows: “Plaintiff for his first amended petition in this cause states that defendants, George Thurston, under the name of G. Thurston, Francis E. Coffee, under the name of E. E. Coffee, Reuben T. Miller, under the name of R. T. Miller, Andrew W. Kapp, under the name of A. W. Kapp, Stephen W. Baugh,…

<p>Affirmance. — The record showing no error, and no question of law being thereby raised involving any principle not well settled, the judgment of the circuit court is affirmed.</p>

Chas. H. S. Goodman, Judge. Statement of case by the court. This is an action of replevin based on the following petition: “Plaintiff, for cause of action, states that he is entitled to the possession of the following specific personal property, to-wit: One log wagon with two-inch tire and one log wagon with one and three-fourths inch tire; one span of bay horses, eleven and twelve years old last spring, known as the ‘Ells teamone span of two bay horses ten years old, called…

James M. Davis, Judge. Statement of case by the court. This suit originated before a justice of the peace. Held: “that even if there is no point of law saved for the supreme court to pass upon, still, while the court will not judge of the weight of testimony, yet when the evidence consists of written instruments, we will look into them, to see whether they were interpreted and construed according to their legal effect.” In the present case…

E. C Devore, Special Judge. Statement of case by the court. This is a proceeding against Haskell and Anderson as garnishees of H. H. Byrne. They answered, denying all indebtedness, etc., at any time to Byrne, the principal defendant in the action.

G. D. Burgess, Judge. The facts are stated in the opinion. I. The court erred in refusing to permit the defendants to show that the tile drain was laid and in use at the time they took possession of the premises. The evidence was competent, if not a complete defence, yet in mitigation of damages. II. Defendant’s instructions, numbers four and five, should have been given.

Eebob to Buchanan Circuit Court, Hon. Joseph P. Gbubb, Judge. In this case there was a demurrer to the petition, which was sustained, and the plaintiff elected to stand upon his petition, and has brought the case here by writ of error. I. The only question presented on the demurrer was — can the plaintiff, as the receiver of this message, maintain this suit ? We maintain he can. He was the party injured by defendant’s failure of duty.

Gr. D. Bukgess, Judge. I. The court erred in admitting the evidence concerning the charges made by defendant, as curator, for boarding and clothing Mrs. Compton’s minor child. This matter had been settled by the probate court, and the evidence was calculated to mislead the jury. Eddy v. Baldwin, 32 Mo. 369; State to use, etc., v. Roberts, 62 Mo. 388. II.

G-. D. Bub» gess, Judge. The instructions given by the court, referred to in the opinion as “being all that defendant was entitled to,” are as follows: The court instructed the jury for plaintiff as follows: “1.

E. L. Edwards, Judge. The facts are sufficiently stated in the opinion of the court. I. It seems to be settled that a petition in a mechanic’s lien suit is capable of correction under the general power of amendment. Phillips on Mec'h. Liens (2 Ed.) sect. 429, and note.

G-eo. W. Dunn, Judge. Statement of case by the. court. This action was commenced before a justice of the peace in Clinton county, on the sixtéenth day of September, 1882, by filing a complaint, stating plaintiff’s cause of action, as follows: “The plaintiff states, that the defendant is a railway corporation, duly incorporated under the laws of Illinois and Iowa.

Joseph P. Grubb, Judge. The facts are sufficiently stated in the opinion of the court. I. The evidence was not sufficient to authorize the court to submit the case to the jury, and the instruction to that effect ought to have been given. The instructions given on part of plaintiffs were erroneous. II.

James M. Davis, Judge. The facts are stated in the opinion. I. Defendant’s demurrer to the evidence should have been sustained. There was no proof that the animal was struck on the crossing, nor that it was struck by the engine, nor that defendant’s servants failed to ring the bell. R. R. Go. v. Seeley, 24 Kansas 266. II. The court erred in giving instruction two asked by plaintiff. It erroneously required that both the bell should be rung and the whistle should be sounded.

James M. Davis, Judge. The facts are sufficiently stated in the opinion of the court. I. Upon all the evidence the jury should have been instructed to find for the defendant. The fact of ringing the bell within eighty rods of the crossing, was testified to by defendant’s witnesses, and was not shaken by the negative testimony of plaintiff’s witnesses.

GK D. Burgess, Judge. The facts are stated in the opinion. I. The evidence shows a valid -condemnation of the right of way in 1870; that defendant’s predecessor then entered upon the land and commenced the construction ©f its railroad: that work was suspended at request of plaintiff, who then “ agreed to firnish the grading over said land ” at a stipulated price, and that when this agreement was made “a part of the grading had already been done and a culvert put in.” The…

<p>Practice — Misconduct or Attorney — Fatal Errors. — TJie error of the court in permitting the respondent’s counsel, against objection, to repeat to the jury, and to argue therefrom, testimony offered and excluded, is not cured by an instruction to the jury to disregard the testimony, and is_ground for a reversal of the judgment.</p>

<p>Appeal from the St. Louis Court of Criminal Correction, E. A. Noonan, Judge.</p>

<p>Appellate Practice. — Where the record does not show that an appeal was ever granted, a motion to affirm will he overruled, and the cause stricken from the docket.</p>

Louis Circuit Court, Gr. W. Lubke, Judge. Damages must he assessed upon the dissolution of the injunction, and not long after the dismissal of the bill. Rev. S.tat., sect. 2712; Dorriss n. Carter, 67 Mo. 544. The injunction was merely auxiliary to the main action, and no motion was made to dissolve it until the final disposition of the ■cause; therefore, not even a nominal attorney’s fee was allowable, and no other damages were attempted to be proved.

<p>1. Chattel Mortgage — Description.—A chattel mortgage which specifically describes certain property, and adds “ and all unfinished woodwork in said premises,” does not cover a quantity of rough lumber on the premises.</p> <p>2. Mortgages — Replevin—Sales—Title.—The levy of a writ of replevin in an action brought by the mortgagee, upon property not covered by the mortgage, and a sale of the property to the officer who made the levy, without the mortgageor’s consent, will not prevent the mortgageor from recovering the value of the property not included in the mortgage from one who purchased it from the officer.</p> <p>8. -Fraud. — Strictures upon the transaction as disclosed by the record.</p>

<p>Appeal from the St. Louis Court of Criminal Correction, E. A. Noonan,. Judge.</p>

<p>Appeal from the Scotland County Circuit Court, Ben. E. Turner, Judge.</p>

E. Turner, Judge. The cause should have been dismissed. No cause of action is stated in amended complaint against the defendant. It is not stated the offence was in the absence of the husband or any other fact, to overcome the presumption that she did it, if at all, under the influence and direction of her husband. Dailey v. Houston, 58 Mo. 361. It is clearly error to admit the oral agreement of defendant, made October 25, 1883. She was then a married woman.

E. Turner, Judge. The petition does not state facts sufficient to constitute a cause of action. Under the contract of lease, and at common law, it was the duty of plaintiff to repair the fences. Taylor, Landlord and Tenant (2 Ed.) p. 208, sect. 327.

E. Turnee, Judge. The application for a change of venue should have been granted. Qorpenny v. Sedalia, 57 Mo. 88. There is no allegation of ownership of the injured property. Wiggins v. Graham, 51 Mo. 17; Pier v. Heinrichoffen, 52 Mo. 333; Qurran v. Downs, 3 Mo. App. 468. One who offers to give testimony as an expert must be shown to be qualified to. do so. The application for a change of venue did not comply with the requirements of the statute.

Louis Circuit Court, Lubke, Judge. The proposition and acceptance completed the contract between the parties. Noyes v. Phœnix Life Ins. Go., 1 Mo. App. 588,; 1 Parsons on Contracts, 511. To constitute a binding contract, the legal assent of the parties is absolutely indispensable, and there are three requisites to such an assent; it should be mutual, it should be without restraint, and it should be understandingly made.

Gf. H. Btjrokhartt, Judge. Statement of case by the court. This is a suit on quantum meruit, for services rendered defendant by plaintiff as an attorney in a certain will case, in the determination of which defendant was interested. Defendant had attorneys already in charge of his case, but desiring local counsel at the place of trial, he authorized one of his attorneys to employ plaintiff.

Henry S. Kelley, Judge. Statement of case by the court. This was a suit brought before a justice of the peace. Upon a trial and judgment in the justice’s court, an appeal was taken by the respondent to the circuit court, where, upon a trial, judgment was had in favor of the respondent. Appellant, after an unsuccessful attempt to get a new trial in said court, brings the case to this court by appeal.

— Hon. Charles Gr. Burton, Judge. Statement of case by the court. This action was begun in a justice’s court and tried on appeal in the circuit court, where plaintiff again had judgment, from which defendant prosecutes this appeal. The complaint filed with the justice alleged that the defendant was indebted to plaintiff in the sum of twenty-five dollars, on account of a two-year old steer taken and converted to his use by defendant, which steer was the property of plaintiff.

APREAL from Bates Circuit Court, Hon. James B. Gantt, Judge. Statement of case by the court. This is a bill in equity to set aside an allowance against tlie estate of Daniel Purdy, deceased, made in the probate court of Bates county. The petition alleges that the plaintiffs are the heirs, as also the defendant, Sallie Nickell, of said Daniel Purdy, deceased, who died intestate in the state of Kentucky in April, 1880.

F. M. Black, Judge. The facts are stated in the opinion. I. Plaintiffs must show that the lumber for which the lien is claimed was actually used in the construction of the building. Simmons v. Carrier, 60 Mo. 581; Fitzpatrick v. Thomas, 61 Mo. 516; Schulenburg v. Institute, 65 Mo. 295; Deardorff v. Everhart, 74 Mo. 39 ; Fitzpatrick v. Thomas, 76 Mo. 514. This was not shown by the evidence. II.

Circuit- Court, Hon. C. H. S. Goodman, Judge. The facts are stated in the opinion. I. The prosecuting attorney of a county is empowered by statute to file an information before a justice of the peace. Sections 2025 and 2029, Revised Statutes. II. A judge of election may be qualified to act as such at an election for school director. Section 7030, Rev. Stat. III. The complaint does charge an offence under the statute.

Henby S. Kelley, Judge. Statement of case by the court. This is au action upon a judgment alleged to have been recovered in the circuit court of Stark county, in the state of Hlinois. The answer was a general denial. The plaintiff offered in evidence a certified copy of the judgment sued on. Against the defendant’s objection the court permitted its introduction in evidence.

Andrew Ellison, Judge. The facts are stated in the opinion. I. The allowance of the demand in favor of D. W. Alexander against the estate of Jamama Alexander, of which Wilks was administrator, was a judgment, and is res adjudicata, as far as the parties thereto, and the parties in the case are concerned. Kennedy r. Shepley, 15 Mo. 640 ; Dullard v. Hardy, 47 Mo. 403. II.

Joseph P. Q-rubb, Judge. The facts are stated in the opinion, I. The petition states no canse of action. The matter alleged is not libelous. Townshend on Libel (3 Ed.) sect. 176; 2 Grreenl. on Evidence (14 Ed.) 409, note a. II. The court erred in admitting illegal evidence on part of plaintiff, as to conversations with third persons and the contents of letters from a third person. All this was simply hearsay.

Andrew Ellison, Judge. Statement of case by the court. This is an action founded on the following petition; “Plaintiff complains of the above named defendants, and for his second amended petition states : “ That before and at the time of committing the injuries hereinafter mentioned, the plaintiff was the owner and in the possession of the following described real estate, being and situate in the county of Macon and state of Missouri: Lot seventeen (17), East Bevier,…

(1. H. Burckhartt, Judge. The facts are stated in the opinion. I. The plaintiff was not entitled to recover, because there was no possession shown in plaintiff, and because the evidence shows that the defendant, and those under whom he claims title, not only 'built the fence in question, but have been in the actual possession of it since, to-wit: since the year 1856. II. If the defendant is in actual possession, the remedy is by ejectment.

Ebbob to Cole Circuit Court, Hon. Chables A. Winslow, Special Judge. Statement of case by the court.

<p>1. Service upon Railroad Corporations — Where service is made on a railroad corporation under section 2531, of the Revised Statutes, on an agent, other than the president, secretary, treasurer, cashier, or other chief or managing officer of such corporation, the agent served with the notice must not only be a station or freight agent, but he must be the nearest station or freight agent of the corporation in the cotinty where the cause of action is pending. Following Harm. & St. Jo. R. R. Go., 80 Mo. 114.</p> <p>S. Garnishee — Liability oe only upon Proper Notice — The liability of a garnishee attaches only when notice of garnishment is served upon him as prescribed by law.</p>

H. S. Kelley, Judge. Statement of case by tbe court. Tbe defendant, a foreign insurance corporation, in January, 1882, and long prior, bad established, at Mary-ville, in Nodaway county, in tbis state, an agency under tbe management and control of one William H. Hubert.

Hon. Gr. H. Bttrckhartt, Judge. Statement of case by the court. This is a proceeding instituted in the recorder’s court of the city of Moberly for the purpose of recovering from defendant a fine on account of the violation by him of the following ordinance: “ Section 6.

<p>Awm.ivTANnw. — The appellant having failed to flle brief, statement or assignment of errors, the judgment is affirmed.</p>

John P. Strother, Judge. Statement of case by the court. On June 18,1881, plaintiff instituted a suit by attachment against defendant, and a certain stock of goods was seized under the attachment. Ón September 13, 1881, in this attachment suit, Sampson filed his interplea, claiming as Ms the property attached, by virtue of a chattel mortgage executed on said property, on June 13, 1881, by defendant, Hanbloom.

Appear from Jackson Circuit Court, Hon. Turner A. GriRR, Judge. Statement of case by the court. This suit was brought by appellants as assignees of one Patrick Keating, by publication against respondent anon-resident, to charge the property of respondent with the payment of two special tax bills issued to said Keating by the city engineer of the City of Kansas, as the contractor for grading a portion of Tracy avenue.

James M. Davis, Judge. The facts are sufficiently stated in the opinion of the court. I. The only cause of action which can be gleaned from the petition is one on a contract to recover for the breach thereof, and the alleged promise is a nudum pactum, which the law will not enforce. State v. County Court, 17 Mo. 507; Smith on Contracts, 167; Chitty on Contracts, 51 a; Graves v. Wait, 59 N. Y. 156; Pierce v. Cursey, 37 Wis. 232. II.

H. S. Kelley, Judge. Statement of case by the court. This is an action to recover damages caused by a ‘fire, alleged to have been communicated to plaintiff’s premises by sparks from one of defendant’s locomotives. 'The allegations of the petition are substantially as follows: That defendant’s servants and agents negligently and carelessly run and managed the locomotive engine along and near plaintiff’s premises so that fire escaped therefrom, and was communicated to grass on…

John. A. Cross, Special Judge. The facts are sufficiently stated in the opinion of the court. I. It is not required that the whistle .shall be sounded continuously for a distance of eighty rods, etc., but only at intervals. Sect. 806, Rev. Stat; sect. 38, Wag. Stat. 310. No such ground of recovery is relied upon in the pleading, and the instruction was upon an issue not made in the pleading. Kenney v. JR. JR., 70 Mo. 255; Oomp v. Heelon, 43 Mo. 592 ; Benson ».

James B. Gantt, Judge. The material facts are set forth in the opinion of the court. I. The court erred in admitting the account of sales from Ms commission men, of the cattle shipped. It was no legal proof of the value of the stock at St. Louis, or of their weight. The court erred, also, in admitting the report of Campbell, Lancaster & Co., as to sales of the stock.

Gr. H. Burckhartt, Judge. Statement of case by the court. This is a suit for damages on account of injury to a lot of sheep shipped by plaintiff, on defendant’s road, from Moberly, Missouri, to Cisco, Texas.

Andrew Ellison, Judge. The facts are sufficiently stated in the opinion of the court. I. The ordinance was properly pleaded, but there was no averment that the city was incorporated, or that it had authority to pass such ordinance ; nor was such charter referred to in the petition by its title and the day of its passage. Therefore, the petition did not state a cause of action. Sect. 3549, Rev. Stat.; Inhabitants of Butler v. Robinson, 75 Mo. 194; Apitz v. Ry. Co., 17 Mo.

E. L. Edwards, Judge. Statement of case by the court. This suit was brought to recover damages for the killing of two mules and the breaking of a wagon belonging to the plaintiff, at a public road crossing, by one of defendant’s engines. It is alleged that the injury to the plaintiff was caused by defendant’s negligence, in faffing to ring its bell or sound its whistle eighty rods from said crossing, as required by section 806, Revised Statutes of 1879.

E. L. Edwards, Judge. The material facts are stated in the opinion of the court. I. The demurrer to plaintiff’s case admitted defendant’s negligence, but this alone does not necessarily entitle him to recover. When plaintiff’s own evidence discloses the facts as to his contributory negligence, as in this case, it is immaterial what the allegations of the answer are. II. There was error in plaintiff’s instruction as to the measure of damages.

Charles •Gr. Burton, Judged Statement of case by tbe court. This action was begun before a justice of tbe peace, in Lamar township, Barton county, for tbe recovery of damages on account of tbe killing of a beifer, in Central township, in said county, adjoining said Lamar town.sbip.

Louis Circuit Court, Shepard Parol ay, Judge. Either party may appeal from the decision of the court below, and, therefore, if one party only appeals, he may dismiss his appeal against the wish of the appellee. Bacon v. Lawrence, 26 111. 58; Kansas City, etc., R. R. Co. v. Hammond, 25 Kas. 208; Diffenderffer v. Hughes, 7 Har. & J. 3; Hewson v. Douglas, Id. 417; Hauer v. Town of Pollc, 6 Wis. 350.

Louis Circuit Court, Amos M. Tiiayer, Judge. In a proceeding at law, the report of a referee has the force and effect of a special verdict. The court cannot disregard it and re-try the case, on the evidence accompanying the report, and make a finding of its own. Prender gast v. Eyermann, 16 Mo. App. 389. A director of a corporation has a right to get a preference over other creditors by taking the property of the corporation in payment of or as security for a debt due him.

Louis Circuit Court, Amos M. Thayee, Judge. Directors stand' in the relation of trustees to the stockholders, and can not dispose of the trust property to promote their individual interests; hence, compensation fixed by themselves after they are elected, the office not being salaried prior to their resolution, the resolution does not amount to a contract. Dunstan v. Gas Go., 3 Bam. & Ad. 125-129 ; Holder v. JR. JR. Go., 71 Til. 106 ; GTieeney v. R. R. Go., 68111. 570.

Louis Circuit Court, George W. Lubke, Judge. There is no proper account filed. An account should be so stated that the defendant may be advised what is claimed for each item, so that he may make a defence. He is entitled to know, when it is claimed the items were furnished and which item was furnished last, and when, so that he may make his defence, if that item was furnished more than four months before the filing of the lien. Lowis v. Goiter, 6 Mo.

A person holding himself out as a partner, thereby inducing another to act on his representations, is liable as a partner. 1 Lindley, Part. 48; Campbell v. Hastings, 29 Ark. 512 ; Carmichael v. Creer, 55 Gfa. 116 ; Young v. Smith, 25 Mo. 341; Re Jewett, 15 Bank Reg. 126.

<p>1. Equity — Creditor’s Bill — Municipal Corporations. — A debt due by a municipal corporation to its creditor may, by a creditor’s bill, be subjected to the satisfaction of judgment against the latter.</p> <p>2. — Exemptions — Pleadings.—In such an action, if the judgr ment debtor desires to avail himself of the statutory exemptions, he must plead them.</p>

<p>Appeal from the Scotland County Circuit Court, Ben E. Turner, Judge.</p>

<p>1. Jurisdiction — Power oe This Court to Determine a Constitutional Question in Cases of Petition for Writ of Habeas Corpus. — The provisions of the state constitution (section twelve, article six), and of section four of the act of March 29, 1883 (Laws of Missouri, 1883, page 215), providing for the amendment to the state constitution creating this court and giving it the same jurisdiction as was conferred on the St. Louis court of appeals, are neither of them restrictive of the jurisdiction of this court as to constitutional questions except only as to its appellate jurisdiction. It has no application to the case of a writ of habeas corpus. Over this subject matter the jurisdiction of this court, by virtue of the constitution, is original, and is co-equal with that of the supreme court, and its judgment just as conclusive.</p> <p>2. Statutes — Validity of — Section 1697, Revised Statutes, Determined — Case Adjudoed. — It appearing from the face of the indictment that the offence with which the prisoner stands charged was committed in Bay county; and the bill found by the jury of Caldwell, and the authority for .this exercise of jurisdiction by the grand inquest of the latter county being justified under the authority of section 1697, of the Revised Statutes (which provides that “ when an'offence shall be committed on the boundary of two counties, or within five hundred yards of such boundary, * * * an examination thereof may be made and an indictment may be found, and a trial and conviction thereon had, in either of such counties).” Held, that the bill of rights positively interdicts any other method of final procedure in cases of felony other than by indictment. That the indictment must be found in the same county where the offence was committed, and no man is to suffer criminally for what he does out of the territorial limits of the county. That said section 1697, of the Revised Statutes, is in violation of the constitution, and is, therefore, void, and that the prisoner is illegally detained and is, ■entitled to his discharge.</p>

Turner A. G-ill, Judge. Statement of case by the court. This was an action brought by the plaintiff by his next friend to recover damages for injuries sustained by him within the corporate limits of the City of Kansas, on the 5th day of February, 1870, by reason, as he alleges, of beiug struck by one of defendant’s locomotives running at a reckless rate of speed, of not less than fifteen or eighteen miles an hour, wilfully and maliciously, without giving any notice at all of…

George W. Dunn, Judge. Statement of case by the court. This was an action to recover the value of a steeí, which escaped through the end door of a freight car, in which it had been loaded, at Edgerton, in this state, for transportation over defendant’s line to Chicago.

Gr. H. Burckhartt, Judge. The facts are stated in the opinion. I. The demurrer should have been sustained. There was no evidence in the case on which to render judgment. Callahan v. Warren, 40 Mo. 131; 81. Train v. Levee, 56 Mo. 590. II. The evidence does not show that defendant was indebted to Rupp. The evidence offered was only hearsay. Christy v. Hood, 7 Mo. 414; Choicteau v. Searcy, 8 Mo. 733; Wood v. Hides, 36. Mo. 326; Langsdorf v. Field, 36 Mo. 440. III.

E. L Edwards' Judge. Statement of case by tbe court. This suit was instituted to recover damages sustained by tbe plaintiff, on account of tbe breach of a written contract, made by him with the defendant, for the shipment of a lot of cattle. The plaintiff was a cattle trader, and had a number .of carloads of stock at Boonville, ready for market. The defendant was operating a railroad from Boonville to St. Louis.

Elijah Robinson, Judge. Statement of case by the court. This is an action to recover damages against the defendant — a railroad corporation — for negligently killing a cow belonging to plaintiff.

George W. Dunn, Judge. Statement of case by the court. The defendant is a railroad corporation duly created and existing under the laws of this state, and as such corporation is the successor of the North Missouri Railroad Company, and entitled to all the rights of the latter company in the matters involved in this suit.

G-eo. W. Dunn, Judge. The case and facts are stated in the opinion. I. Proof of negligence in failing to repair, after notice of the defect, or of negligence in failing to discover it seasonably and to repair it within a reasonable time thereafter, was necessary to entitle plaintiff to recover. Clardy v. Ry. Co., 73 Mo. 578; Slier. & Redf. on Negligence, sect. 459 ; Fitterling v. Ry. Co., 79 Mo. 508. There was a total failure of evidence of the negligence charged. II.

Circuit Court, Hon. Andrew Ellison, Judge. Statement of case by the court. This is an action brought by plaintiff to recover damages for his ejection from the caboose of one of defendant’ s freight trains near Macon. On the 29th of May, 1882, the plaintiff purchased a ticket from defendant’s agent at Calao, from Calao to Macon and return. It was on plaintiff’s return from Macon on June 3, 1880, that he was ejected from the train.

James B. Hantt, Judge. Statement of case by the court. This is a proceeding by certiorari? issued by the circuit court of Bates county to the defendants as a board of equalization of said county, to set aside and cancel the action of said board in raising the assessed valué oi plaintiff’s personal property for the year 1882, on the ground that the board had no jurisdiction, for the want of notice to plaintiff.

Elijah Robinson, Judge. Statement of case by the court. This action is founded on the following contract: “This agreement, made and entered into this sixteenth day > of November, 1880, by and between Abram Larimore, of the county of Audrain, and Jane Larimore, of the county of Callaway, Missouri, heirs and widow of Henry Larimore, deceased, parties of the first part, and R. H. Tyler, of Callaway county, and J. R. Baker, of Audrain county, Missouri, parties of the second…

John P. Strother, Judge. Statement of case by the court. This action was begun before a justice of the peace to recover for the breach of a contract between plaintiff and defendant, through its board of directors. The contract is what is known as a teacher’s contract for teaching a district school. The contract was made for a term of six months.

George W. Dunn, Judge. The case and facts are fully stated in the opinion of the court. See, also, Corn v. City of Cameron, post, p. —

Noah M. Gtvan, Judge. The case and facts are stated in the opinion. I. There was no allegation in statement that plaintiff was a real estate agent, and the compensation is different in such case, and it was error to admit evidence of that fact. Erben r. Lorillard, 2 Key’s 567; Dyer n. Sutherland, 75 111. 585 ; 2 Sutherland on Damages, 451. II.

E. L. Edwards, Judge. The facts are sufficiently stated in the opinion of the court. I. The jurisdiction of the circuit court to hear and determine all questions arising on the motion for judgment in this case is well settled. 8chlicker v. Gordon & Finite, 74 Mo. 534. Defendants were authorized to make any defence under the general denial which the facts in evidence justified. Wolf v. Schaeffer, 4 Mo.

H. S. Kelley, Judge. Statement of case by the court. In 1869 Luther Swift died intestate, the owner and in possession of a certain promissory note for five hundred dollars, executed by one Enoch Liggett to Isaac Lillybridge, and by Mm endorsed for value to said Luther Swift. At the time of said Luther Swift’s death Isaac Lillybridge was indebted to him in the sum of five hundred dollars. Luther Swift died without children, but left a widow, Nancy Swift.

NoahM. Hivan, Judge. Statement of case by the court. The.f acts in this case are, that at the June term 1883, of circuit court of Johnson county, Missoui, an agreed statement of fact complying with statutory requirements was filed and the cause submitted.

Louis Circuit Court, W. II. Horner, Judge. - A judgment creditor may proceed by motion to set aside judgments confessed. And it is immaterial whether his judgment be subsequent to or contemporaneous with those attacked. McHenry v. Shepherd, 2 Mo. App. 378; Bryan v. Miller, 28 Mo. 32. The attack must be direct, and not collateral. How v. JDorscheimer, 31 Mo. 350.

<p>Appeal from the St. Louis Circuit Court, W. H. Eoenee, Judge.</p>

Louis Circuit ---- W. H. Horner, Judge. The relinquishment of dower is a sufficient consideration for a provision for the wife. Bump, Fraud. Con. 310; Wood-son v. Pool, 19 Mo. 344. A voluntary-conveyance by a man to his wife, while in debt, is fraudulent and void as to existing creditors. Potter n. McDowell, 31 Mo. 62; Pawley v. Vogel, 42 Mo. 291-303 ; White v. McPheeters, 75 Mo. 286-294; Hastings *. Crossland, 13 Mo. App. 592.

E. Turner, Judge. All occupations, callings, and business, not exempted by statute, may be subject to a municipal taxation or license. Am. U. Ex. Go. v. Si. Joseph, 66 Mo. 675; Glasgow n. Bowse, 43 Mo. 479. There is no restriction on the power of the government to tax occupations unless expressly imposed by the constitution. Desty, Tax’n, 303 sect. 64; Butler’s App., 73 Pa. St. 448; Dusach’s App., 62 Pa. St. 491.

<p>Municipal Corporations — License Taxes — Pubuc Scales. — Chapter eighty-trine of .the Revised Statutes confers no power on a village incorporated thereunder to impose a license tax for the privilege of keeping a public scale.</p>

Louis Circuit Court, Geobge W. Lubke, Judge. The plaintiff can not maintain this action in her own name. Rev. Stat., § 3468 ; Hayes v. Miller, 81 Mo. 424 ; Plummer v. Frost, 81 Mo. 425. The action is properly brought in the plaintiff’s name. Rev. Stat., §§ 3283, 3286 ; TheState v. Mertz, 14 Mo. App. 58.

<p>Error to the St. Louis Circuit Court, George W. Lubke, Judge.</p>

<p>I. Evidence — Accounts.—La an action where the petition avers the sale and delivery of articles set out in the form of an account with the price attached to each item, and that the defendant agreed to pay these specified prices, evidence of the reasonable value of the items is irrelevant.</p> <p>2. Appellate Practice — Aeeirmance with Damages. — An appeal wholly without merit justifies the conclusion that it was taken for delay, and the judgment will be affirmed with damages.</p>

Louis Circuit Court, George W. Lubke, Judge. This is a writ of error prosecuted by the plaintiff in the same cause as between the same parties {ante, p. 162). The ruling which the plaintiff assigns for error arose in this way : Upon the trial of the issues the jury rendered a verdict in favor of the plaintiff in error for one hundred and fifty dollars as principal, and $29.25 as interest thereon.

<p>Appeal from the St. Louis Circuit Court,. W. H, Horner, Judge.</p>

Louis Circuit Court, Amos M. Thayer, Judge. This case having originated in a justice’s court, his jurisdiction must affirmatively appear by his record. Matson v. B. B. Co., 80 Mo. 229; Keane v. Bartholoio, 4 Mo. App. 510; Bersch v. Schneider, 27 Mo. 101.

<p>Appeal from the St. Louis Circuit Court, W. H. Horner, Judge.</p>

<p>Equity — Appellate Practice. — In equity proceedings- -where the evidence is very conflicting, an appellate court will defer to the opinion of the trial court upon issues of fact, and will affirm the judgment.</p>

Louis Circuit Court, Daniel Dillon, Judge. The stipulations of the contract, both in respect to omissions and additions, fix absolute limitations upon the power of the superintendent, and are binding. Hartupee v. Pittsburgh, 97 Pa. St. 107, 119; Ford v. U. 8., 17 Conn. Claims, 60; Stuart v. Cambridge, 125 Mass. 102; Illinois Deaf and Dumb Inst. v. Platt, 5 Bradw. (111.) 567; Myers v. Sari, 30 C. L. L. J. Q. B. 9 ; Russell v. Sa Da Bandeira, 32 C. L. L. J. C., 68.

<p>Appeal from tlie St. Louis Circuit Court, Amos M, Thayer, Judge,</p> <p>A judgment void as to one is not void as to all. If void as to one, the appellate court may set it aside and enter a new judgment against all against whom it should have been entered. Henry v. Gibson, 55 Mo. 570; Lenox v. Clarice, 52 Mo. 115; Buffum v. Ramsdell, 55 Me. 252; Holton v. Towner, 81 Mo. 360. An execution can be stayed only upon a strict compliance with the statutes. Gawtry v. Adams, 10 Mo. App. 29.</p> <p>A judgment is an entirety, and what is meant by the entirety of a judgment is illustrated by the following decisions : Rush v. Rush, 19 Mo. 441; Smith v. Rollins, 25 Mo. 410; Pomeroy v. Betts, 31 Mo. 419; Covenant Mut. L. Ins. Co. v. Clover, 36 Mo. 392.</p>

<p>1, Practice — Pleading—Waiver—Demurrer—Appellate Review. A defendant who has filed special jileas in addition to a plea of the-general issue, to which special pleas demurrers have been sustained, does not, by going to trial on the general issue, waive his right to have the court’s action upon the demurrers reviewed.</p> <p>3. - Exceptions. — A demurrer is a part of the record, and no exception to the action .of the court thereon is necessary to save the question for review on appeal.</p> <p>i. - Statute op Limitations. — A demurrer to a plea of the statute of limitations admits that the cause of action did not accrue within the time alleged.</p>

<p>1. Common Carriers — Presumptions—Damages—Negligence.—The presumption is that goods delivered to a carrier in good condition, and by him delivered to the consignee in an injured condition, -were injured while in the carrier’s possession.</p> <p>2. — Burden of Proof. — A prima facie case being made against a carrier, for injury to goods while in transit, the burden is on him to show affirmatively that they were injured in a manner for which he is not liable under Ms contract.</p> <p>3. -— Evidence — Consignees.—A consignee who does not examine goods delivered to him by a carrier within a reasonable time thereafter, can not recover against the carrier for their injury by showing that when he examined them they were M a damaged condition, without further showing that the injury did not occur after their delivery.</p>

Louis Circuit Court, George W. Lubke, Judge. Where there is an entire failure to prove the cause of action as alleged, there can be no recovery by the plaintiff unless he amend his petition to conform to the proof. WaldMer O. JR. JR. Go., 71 Mo. 514; JLuckie r>. JR. JR. Go., 67 Mo., 245; Edens O. JR. B. Go., 72 Mo. 212; Price v. JR. P. Go., Id. 414; Harrison O. P. P. Go., 74 Mo. 369. Only those issues raised by the pleading-s can be tried.

Geo. W. Dunn, Judge. The case is stated in the opinion. I. The evidence offered by the plaintiff will be taken as a concession that defendant was a city of the fourth class, and had the power and it was its duty under sections 4952 and 4953, Revised Statutes, to tax the plaintiff’s property and all other property “within such city made taxable by law for state purposes; ” and under said sections the tax book offered in evidence by defendant, and received without objection,…

Turner A. Gtill, Judge. The case and facts are stated in the opinion of the court. I. The testimony offered, and refused, tended to show that the constable violated his duty; was notified that he was about to sell the property of another (not the defendant), and had put upon him the duty of taking an indemnifying bond, in compliance with the statute. It was error to exclude it. Rev. Stat., sect. 3023. II. A judgment against a married woman is void.

Ebbob to Cass Circuit. Court, Hon . Noah M. G-ivan, Judge. Statement of case by the court. This action was begun before a justice of the peace. The statement contained two counts, the first of which was abandoned by plaintiff in the justice’s court. From a judgment in favor of plaintiff by the justice, the defendants appealed to the circuit court.

F. M. Black, Judge. Statement of case by the court. Tkis is a proceeding by garnishment under attachment. The debtor, W. F. Carter, resided at Clay Center in the state of Kansas. The garnishees, Tootle, Hanna & Co., are residents of the state of Missouri, doing business at Kansas City. On the 11th day of April, 1882, Carter, being indebted to Tootle, Hanna & Co., executed to them a chattel mortgage on his stock of goods in store at said Clay Center, to secure said debt.

F. M. Black, Judge. Statement of case by the court. The plaintiffs are the sole heirs of Alonzo Huling, deceased. The estate of the said Alonzo Huling has been fully settled, and all of his debts have been paid.

Circuit Court, Hon. Turner A. Gill, Judge. Statement of case by the court. John Harris, in 1867, divided the northwest quarter, section twenty, township forty-nine, range thirty-three, in Jackson county, Missouri, into eight twenty acre lots, for the purpose of division among his eight children. Said lots were numbered from one to eight.

Noah M. Hi van, Judge. The facts are sufficiently stated in the opinion. I. The failure of defendant to perform the express covenants in the contract of letting, “to plow the land in the month of August, and to sow the wheat by the twentieth of September,” rendered him liable for nominal damages, at least; and the court erred in modifying plaintiff’s first instruction, which precluded such recovery.

Statement of case by the court. In this canse, on the' seventh of December, 1885, there was filed in. the Kansas City court of appeals the following motion: “Now come the said defendants, Orr and Cockrell, in the above cause, and move the court to quash the execution issued in this cause for the reason that the transcript and docket fees having-been paid to the clerk of this court, and the clerk of the court below, there are no other costs taxed in said execution, which .are…

A. J. Seay, Judge. The facts and case are stated in the opinion. I. Under the act of March 23, 1875, the certificate of the superintendent of insurance was not required to be filed in the office of the recorder of deeds in -the county where contract of insurance was made. But if the statute of 1869 had still been in force the failure to-record the authority to do business in the county would not have affected plaintiff’s right to maintain this action. Ins.

Geo. H. Burckhartt, Judge. Tlie facts and case are stated in tlie opinion. I. Tlie instruction in tlie form of a demurrer to tlie evidence should have been given. There was no evidence to show that any available means used would have prevented the accident. So that the failure to ring the bell or sound the whistle, or slacken speed, could not have caused the injury. Holman r>. R. R., 62 Mo. 562; Wallace v. R. R., 74 Mo. 594; 1 Redfield on Railways, 490, note 14. II.

James M. Davis, Judge. Statement of case’ by the court. This is an action by plaintiff, an employe of defendant, to recover damages for an injury sustained by Mm while engaged in defendant’s services as a bridge carpenter and car repairer. The acts of negligence on the part of defendant, alleged in the petition, are numerous.

GK H. Burokhartt, Judge. The facts are sufficiently stated in the opinion of the court. I. The demurrer to plaintiff’s evidence should have been sustained. Suits of this kind must be brought in the township where the injury happened, or in an adjoining township. Rev. Stat., art. 2, ch. 44, sect. 2839, Justices’ Courts. II. The place where the killing was done is matter for proof, and there was no evidence to show in what township the cow was killed.

George W. Duke, Judge. The facts and case are stated in the opinion. I. The court erred in giving the instruction asked by plaintiff. It is a false issue to place the liability upon a refusal by the conductor to accept the ticket when tendered outside the coach and when not engaged in collecting fares. II. The court erred in refusing defendant’s fourth instruction. Logan D. R. R., 77 Mo. 668. The contract was insufficiently pleaded.

<p>Error to Lafayette Circuit Court, Hon. John P„ Strother, Judge.</p> <p>The case is stated in the opinion.</p> <p>I. The common law did not invalidate contracts made on Sunday. Fox v. Musch, 3 W. & S. 446 ; Shuman v. Shuman, 3 Casey 90; Johnson v. Brozan, 13 Kansas 529 ; State v. Ricketts, 74 N. C. 187; Bloom v. Richards, 2 Ohio St. 388; Boynton v. Page, 13 Wendell (N. Y.) 425 ; Moore v. Olymer, 12 Mo. App. 14.</p> <p>II. The statute of this state, as to Sabbath-breaking, Revised Statutes, section 1578, does not change the common law. The word “labor” does not comprise the making of contracts. Moore v. Olymer, 12 Mo. App. 14; Bloom v. Richards, supra; see also, Fritch. v. Heisler, 40 Mo. 455 ; Gw inn v. Simes, 61 Mo. 337.</p> <p>III. A debt barred by the statute of limitations is a sufficient consideration to uphold a note. The statute of limitations does not extinguish the debt, but bars the remedy, and this is the reason. Chitty assigns why a demand may be revived by the debtor’s subsequent promise without any neto consideration. Chitty on Cont. 907, 922; 1 Parsons on Cont. (6 Ed.) 434; Hill v. Henry, 17 Ohio 9; Bell v. Morrison, 1 Peters (U. S.) 371; Little v. Blurnb, 9 Pick. (Mass.) 492; 1 Daniels on Neg. Inst. (2 Ed.) 182.</p> <p>IV. In the case of Kaufmann v. Hamm (30 Mo. 389), a note executed on Sunday for a pre-existing debt was upheld. It is now settled law that a written promise to pay, whether made before or after the debt is barred, will continue the remedy and remove the statutory bar. Button v. Hassinger, 69 Pa. St. 311; Angelí on Limitations (5 Ed.) sect. 208.</p> <p>I. The note sued on was executed and delivered on Sunday and is, therefore, void. The statute (sect. 1578, Bev. Stat.) having inflicted a penalty for doing'the thing forbidden, the courts will not assist a wrongdoer. The penalty implies a prohibition of the things mentioned in the statute. The statute prohibits labor or any work. It is remedial and is to be liberally construed as regards the mischief to be remedied. Smith v. Wilcox, 24 N. Y. 354; Bev. Stat., sect. 1578; Tucker v. West, 29 Arkansas 393 ; Hill v. Wilker, 41 Georgia 454; Sayne v. Wheeler, 31 Iowa 114; Raines v. Watson, 2 West Va. 893; Love v. Wells, 25 Indiana; Reeves v. Butcher, 31 N. Y. 226; Cranson v. Goss, 107 Mass. 440; Hill v. Sherwood, 3 Wis. 345; Hx parte Andrews, 18 Cal. 679; 2 Parsons on Cont. (5 Ed.) 757, notes n, o,p, q, r; Specht v. Commonwealth, 8 Pa. St. 312.</p> <p>II. The penalty implies a prohibition. Wood v. Armstrong, 54 Ala. 150; Doioning v. Ringer, 7 Mo. 586 ; Tuxberry v. Miller, 19 Johns. (N. Y.) 311.</p> <p>III. The case of Moore v. Olymer (12 Mo. App. 14), involved a construction of the Illinois statute. The case of Kaufmann ». Hamm (30 Mo. 389), is put upon the authority of Qreer v. Putnam (10 Mass. 313), which was afterwards virtually overruled by Pattee v. Ghreely (13 Mete. (Mass.) 284). The Missouri statute uses the words “to labor or perform any work.” Certainly the expression “any work” means something in addition to labor. '</p>

Louis Circuit Court, W. H. Horner, Judge. The effect and Intention of the act concerning street railroads, approved January 16,1860, is that when the injury to the passenger is occasioned by his getting on or off the car at the forward platform, it shall be presumed as a matter of law that the negligence of the passenger himself contributed to produce the injury.

<p>Appeal from the St. Louis Circuit Court, Amos M. Thayer, Judge.</p> <p>A bona fide mortgage or deed of trust placed upon the land after the commencement of the building or improvement by the general contractor, but before a particular sub-contractor has commenced his work or the delivery of his materials, is entitled-to priority over the lien of such sub-contractor as to the land, bnt not as to the building. R,ec. Stat., sects. 3172-3-4-8, 3193. In cases of this nature, where the rights of third parties are involved, a stricter rule of construction is to be applied than in cases where only the contractor and owner are concerned. Hanson n. Sheehan, 78 Mo. 668, 673. The lien does not commence or attach antecedently to the doing of the work or furnishing materials. McLagaw n. Brow?i,- 11 111. 519, 526 ; Gaiy n. Casey, 15 111. 192; Danis n. Alnord, 94 U. S. 548 (bk. 24, Law Ed. 285); Mellor n. Valentine, 3 Col. 255 ; Barber n. Reynolds, 44 Cal. 533 ; Welch n. Porter, 63 Ala. 232; Schaeffer n. Lohman, 34 Mo. 68 ; Rothe nBellingrath, 71 Ala. 55; Kuhleman n. Schuler, 35 Mo. 142.</p> <p>The liens of mechanics and material men, whether as contractors or sub-contractors, take priority over other incumbrances placed upon the real estate subsequent to the 'commencement of the building. Hev. Stat., sect. 3178; Douglas n. St. L. Zinc Co., 56 Mo. 388; Allen n. Prumet Mining Co., 73 Mo. 688; McKim n. Mason, 3 Md. ch. 186; Reading n. Hopson, 99 Pa. St. 494: Broolts n. Railroad Co., 101U. S. 443 (bk. 25, Law Ed. 1057); Danis n. Biisland, 18 Wall. 659 (bk. 21, Id. 969); Taylor n. Burlington Railroad Co., 4 Bill. 570 ; Neilson n. Iowa Railroad Co., 44 Iowa, 71: Manhattan Life Ins. Co n. Paulison, 28 N. J. Eq. 304. The commencement of a building is the first labor done on the ground, which is made the foundation of the building, and is to form part of the work suitable and necessary for its construction. Conrad n. Starr, 50 Iowa, 470 ; Welch n. Porter, 63 Ala. 232; Phillips, Mech. Liens, sects. 216, 219. As against a mortgagee of land, under mortgage executed after materials and work have been contracted for, and having knowledge of that fact, the lien of the mechanic furnishing such material or performing such labor will take precedence. Dunklee n. Crane, 103 Mass. 470 ; Howard ■6. Veazie, B Gray, 233; Phoenix Mat. IAfe Ins. Co. 'o. Batohen, 6 111. App. 621.</p>

<p>Mechanics’ Lien — Sub-contractor—Mortgages—Priority oe Lien.— The lien of a sub-contractor has priority over a mortgage placed on .the property after the sub-contractor had begun work upon the building.</p>

Turner, Judge. The complaint need not be sworn to. Missouri City v. Hutchinson, 71 Mo. 46. Tribunals of limited jurisdiction must exercise such jurisdiction in strict conformity to the statute. Missouri Qity v. Hutchinson, 71 Mo. 46 ; Kansas City v. Flanagan, 69 Mo. 22. - .

Louis Circuit Court, Amos M. Thayer, Judge. The cause of forfeiture was a continuing cause of forfeiture, and defendant had the right under the terms of the policy, to-forfeit it at the time it did so. Continental Life Ins. Co. v. Robinion, (Ohio), Western Ins. Review, March, 1884, 259; Marston v. Mass. Life Ins. Co., Id. 260. Defendant under the terms of its contract had the right to-forfeit the policy for non-payment of the interest on the note. Brooldyn Ins. Co. t>.

Louis Circuit Court, W. II. Hornee, Judge. Tie plaintiff is-clearly estopped from enforcing tiis judgment. He sold tie stable in question to defendant, with, tie implied warranty tiat ie iad a rigit to sell it, and, upon tie faiti of such warranty, was paid for tie same. Permitting iim now to recover, would give iim a second satisfaction for tie same property, by way of conversion, and would clearly work a fraud upon tie defendant. Bigelow, Estop.