Volume 190 — Missouri Appeal Reports

<p>1. CONTRACTS: Construction. In endeavoring to ascertain the true intent of the parties to a contract, courts should look ' first to the contract itself, and if, after a careful consideration of it and all that appears therefrom, a reasonable doubt still remains, then, and only then, should light be sought elsewhere; - and in looking to the contract, the court should not readily yield to any construction that will give to any word, phrase or sentence contained therein no meaning or value whatever, but should, on the other hand, attempt to so harmonize each and every provision as to give some force and effect to all,</p> <p>2. SALES: Construction of Contract: Time of Delivery: Parol Evidence. A written contract for the sale of oil provided “for shipment in carload quantities, as follows, and within ten days of specified dates: 320 barrels, October, etc., buyer to furnish specifications for shipment in ample time to enable seller to execute order within the period or periods named above.” The contract was prepared on a blank form used by the seller in all its contracts, and filled in with the provision “320 barrels, October.” Eeld, that the provision “within ten days of specified dates,” means the same as if it read “within ten days of specified dates, as follows, to-wit,” and permits delivery within ten days after the time therein specified, namely, the month of October, and that such provision does not refer to the dates on which specifications for shipment are to be furnished, since such construction would render the provision for ample time after such specifications were furnished meaningless; held, further, that the contract was not ambiguous on its face, and hence extrinsic evidence could not be considered in determining the meaning of such provision; held, further, that although the term “date” means a given day of a given month of a given year, ’ nevertheless it is apparent that the parties employed the word “October” in the sense of, and as, the date when delivery was to be made.</p> <p>Eeld, by ALLEN, J., dissenting, that the word “October,” as used in the contract, is not'a specified date, but a “period” of time, and that the natural meaning of the term "320 barrels, October” is that that number of barrels were to be delivered in October, provided the buyer furnished shipping directions in time to permit the seller to make delivery on or before the end of that month, as provided by the “ample time” clause; held, further, that, in view of the fact that the contract was prepared by the seller upon one of its printed forms, it should be most strongly construed against the seller and any doubt resolved in favor of the buyer, and, in view of the further fact that the vital element of the contract is vaguely expressed by “320 barrels, October” and is by no means entirely definite and clear, parol evidence should have been received to explain its meaning, and that such- evidence, offered by the buyer, clearly established that the parties intended that delivery should be made in the month of October, provided the buyer furnished shipping directions in time to permit the seller to make delivery within that month, as provided by the “ample time” clause.</p> <p>3. CONTRACTS: Construction: Parol Evidence. Where a contract is not ambiguous on its face, parol evidence may not be introduced for the purpose of explaining it.</p> <p>Eeld, by ALLEN, J., dissenting, that if the terms of a contract are susceptible of more than one meaning, so that reasonable men may fairly and honestly differ in the construction thereof, extrinsic evidence, either written or parol, is admissible to resolve such ambiguity, in order to arrive at the true intention of the parties.</p> <p>4. DEFINITIONS: “Date.” The term “date” ordinarily means a given day of a given month of a given year.</p>

Louis City Circuit Court. — Mon. Lea 8. Rassieur, Judge. (1) The contract between Beckwith and Hemp & Co. having been made by the plaintiff in his own name and not in the name of or as acting for the principal,.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. (1) The trial court correctly decreed that the plaintiff was not entitled to interest or penalty before the institution of the suits, because no notice of the amended tax bill was ever served on any of the defendants. Paving Co. v. Peck, 186 Mo. 520; Seaboard Nat’l Bank v. Woesten, 176 Mo. 49; Eyerman v. Blaksley, 78 Mo. 152; St. Joseph v. Forsee, 115 Mo. App. 510; Perkinson v. Schnaake, 108 Mo.

<p>William R. Bush. Construction Company v. Withnell et al., ante, p. 33, followed.</p>

Louis City Circuit Court. — Hon. Duniel D. Fisher, Judge. (1).

<p>1. FRATERNAL BENEFICIARY ASSOCIATIONS: Action on Benefit Certificate: Burden of Proof. In an action on a benefit certificate issued by a fraternal beneficiary association, plaintiff makes a prima-facie case by introducing the certificate and showing the death of insured and that all assessments and dues were paid at the time, and the burden then rests upon defendant, pleading the suicide of insured as a defense, to establish such defense</p> <p>2. TRIAL PRACTICE: Uncontradicted Evidence: Province of Jury. After plaintiff makes a prima-facie case, the evidence introduced on the part of defendant to overcome and repel it is for the jury to consider and weigh, even though it is not contradicted by plaintiff, for the reason that it is peculiarly within the province of the jury to give judgment on the credibility of the witnesses and the weight and value of their testimony.</p> <p>3. -: -: -: Effect of Admissions. The rule that, where the evidence for plaintiff makes a prima-facie case, the sufficiency of defendant’s evidence to establish his defense is a question for the jury, even if defendant’s evidence is not contradicted by plaintiff, does not apply where plaintiff’s admissions prove the fact defendant is required to prove in order to establish such defense.</p> <p>4. LIFE INSURANCE: Conclusiveness of Proof of Death: Evidence. The proof.of death furnished by the beneficiary named in a life insurance policy constitutes prima-facie evidence of the facts therein stated, and such proof is conclusive unless contradicted or properly explained, as by showing some mistake, or something otherwise calculated to relieve against it.</p> <p>5. FRATERNAL BENEFICIARY ASSOCIATIONS: Action on Benefit Certificate: Conclusiveness of Proof of Death: Evidence. An affidavit furnished as part of the proof of death of a member of a fraternal beneficiary association, which was signed by a friend of the beneficiary, from information furnished by the beneficiary, and adopted by the latter as his own, and which stated the cause of death of insured as suicide, was a binding admission of the beneficiary that insured committed suicide, in the absence of a showing of mistake, or something otherwise calculated to relieve against it, and precluded his recovery under a certificate malting the insurance void in the event insured committed suicide.</p>

<p>1. COMMON CARRIERS: Delivery of Freight: Deposit on Platform. Under a bill of lading which provides that, when the goods are consigned to a station where the carrier has no agent, the carrier may, regardless of the weather, deposit the goods on the platform, whether there is any one there to receive them or not, a delay of fifty minutes in the arrival of a freight train does not entitle the consignee to notice of the arrival of the goods, especially where it does not appear that the train would have been met had such notice been given; Frank v. Railroad, 57 Mo. App. 181, and Pindell v. Railroad, 34 Mo. App. 675, distinguished.</p> <p>2. -: -: -: Conversion, Where a bill of lading authorized a carrier to deposit goods on the platform at stations where it had no agent, the fact that it placed goods in a warehouse on the platform, the key to which was, for the convenience of consignees, and in accordance with the usual custom that obtained there, left with a householder in the vicinity, was not a conversion, rendering it liable for their unexplained loss.</p>

Louis City Circuit Court. — Now. Eugene McQuillin, Judge. (1) The mere fact that a child was run over by defendant’s wagon while on the public thoroughfare does not in itself support an inference that the injury was caused by any negligence on the part of defendant. Lee v. Jones, 181 Mo. 298; Parsons v. Yeager Milling Co., 7 Mo. App. 594; McNamara v. Beck, 52 N. E. (Ind. App.) 707; Stock v. Wood, 136 Mass.. 353.

Louis City Circuit Court. — Hon. Rhodes E. Cave, Judge. The court erred in overruling defendant’s demurrers to the plaintiff’s evidence and at the close of the entire-case. Glenn v. Hill, 210 Mo. 299; Graff v. Brewing Co., 130 Mo. App. 618, and 145 Mo. App. 364; Korach v. Loeffle, 168 Mo.. App. 422; Dice v. Zweigart, 171 S. W. 195; King v. Oil Co., 81 Mo. App. 165; Herdt v. Koenig, 137 Mo. App. 589; Wernick v. Railroad, 131 Mo. App. 45.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) Representations made by an applicant for membership in a fraternal beneficiary association are warranties and when false avoid the policy. Hartmann, in his application for membership in the defendant society, misrepresented both his age and his occupation and his benefit certificate is therefore void. Mc-Dermott v. Modem Woodmen of America, 97 Mo. App. 636; Modern Woodmen of America v. Angle, 127 Mo.

<p>1. INSANE PERSONS: Guardian and Ward: Coercing Final Settlement of Resident Ancillary Guardian: Rights of Foreign Domiciliary Guardian: Equity. Although a guardian of a nonresident insane person, appointed by a court of the State in which the insane person is domiciled, cannot maintain an action as guardian and recover on his mere right as guardian, in the courts of this State, yet such a guardian may maintain an action in the courts of this State, in equity, as a trustee, to coerce a final settlement, in the proper probate court, of ¡ an ancillary resident guardian of the insane person, for the purpose of having transferred to him, as domiciliary guardian, the balance of .the funds in the hands of the ancilliary guardian.</p> <p>2. -: -: -; -: Jurisdiction of Court of Equity. The jurisdiction of courts of equity over the estates of insane persons was not divested by Sec. 34, Art. VI of the Constitution, conferring upon the probate court “jurisdiction over all matters pertaining to . . . the appointment of guardians, curators . . . persons of unsound mind,” nor by Art. 19, Ch. 2, R. S. 1909, vesting jurisdiction in the probate court over matters relating to the guardianship of insane persons and the management of their estates; and hence a court of equity of this State has jurisdiction of an action by a guardian of a nonresident insane person, appointed by a court of the State in which the insane person is domiciled, to coerce a final settlement, in the proper probate court, of an' ancillary resident guardian of the insane person, for the purpose of having transferred to him, as domiciliary guardian, the balance, of the funds in the hands of the ancillary guardian.</p> <p>3. -: -: -: -: -. Where the guardian of a nonresident insane person, appointed by a court of the-State in which the insane person is domiciled, sued in equity.,. as trustee, to coerce a final settlement, in the proper probate court, of an ancillary resident guardian of the insane person, for the purpose of having transferred to him, as domiciliary .guardian, the balance’ of the funds in the hands of the ancillary guardian, and it was shown that such guardian was the proper person to be charged with the trust and that the interest of the insane person' demanded that her estate be saved from the-expense of two administrations, and the bond given by such guardian was sufficient to protect the estate, held that the-ancillary guardian should be ordered to make final settlement in the proper probate court, and to turn over to the domiciliary guardian the balance remaining in his hands, upon the execution by such domiciliary guardian of a proper receipt and acquittance therefor and his filing, in such probate court, a duly certified copy of the bond given by him ás such guardian.</p>

— Hon. Arch A. Johnson, Judge. (1) To render a tax bill nonenforceable, in toto, on the ground that part of the improvement encroached upon private property, even before the adoption of the quantum meruit statute of 1911, there would have to be an entire absence of facts and circumstances tending to show that the part improperly placed could be removed and that the remainder would make a symmetrical, sightly and durable walk, or that the part properly placed could not be…

<p>1. MUNICIPAL CORPORATIONS: Tax Bills: Power of City to Issue Corrected Ones. Where a municipality has legally issued tax bills for the payment of a public improvement which are incorrect, it has power to issue corrected tax bills in their stead.</p> <p>2. -: -: -: -. That the personnel of the city government has changed between the time of mating a public improvement for which incorrect tax bills are issued and the time of demanding corrected tax bills, does not abrogate the power of the city to issue such corrected tax bills.</p> <p>3. -: -: -: Action Against City for Refusal to Issue Corrected Tax Bills. An action for damages against a city for refusal to issue corrected tax bills for a public improvement cannot be defeated on the ground that the issuance of such tax bills is a legislative act over which the courts have no control.</p> <p>4. -: -: Refusal tp Issue Corrected Tax Bills: Defense. Action against a city for damages for refusal to issue corrected tax bills. The city’s position not having changed in any way, the fact that the contractor delayed bringing such action several years, is not a defense.</p> <p>5. -: Tax Bills: Refusal of City Officers to Issue Corrected Tax Bills: Remedy, Mandamus. Where tax bills for street paving, issued by a city, are defective and the city authorities refuse to issue corrected ones instead, but the city has not disabled itself from so doing, the remedy of the contractor is by mandamus to compel the issuance of such corrected tax hills and he cannot maintain a suit for damages against the city because of such refusal of the city officers. [Sec. 9403, R. S. 1909.]</p>

■Appeal from Polk Comity Circuit Court. — Hon. C. H. Skinker, Judge. (1) A petition which attempts to set ont several distinct and separate canses of action in one count is bad and a demurrer to it should be sustained. Gardner v. Robertson, 208 Mo. 605. (2) Such is the rule in actions for libel and slander. Flowers v. Smith, 214 Mo. 98; Christal v. Craig, 80 Mo. 367.

— Eon. David E. Blair, Judg’e. (1) The motion for judgment on the pleadings was in effect a demurrer to the answer. State ex rel. v. Adams, 161 Mo. 349; Bank v. Stone, 93 Mo. App. 292; State ex rel. v. Delmar Jockey Club, 200 Mo. 63. (2) Where there is a limitation in respect of the filing of a petition snch limitation operates against the withdrawal of signers just as it does against further petitioners.

Anneal from Scott County Circuit Court. — Hon. Frank Kelly, Judge. (1) The peremptory instruction requested by defendant should have been given. A showing of mere-delay, with nothing more, is insufficient to support a recovery for delay in the transportation of live stock. Mere proof of delay is not proof of negligence. Ecton v. Railroad, 125 Mo. App. 226; Wernick v. Railroad,. 131 Mo. App. 52; Clark v. Railroad, 138 Mo. 426; Decker v. Railroad, 149 Mo.

<p>CONSPIRACY: Petition: Not Sufficient When: Commission by Broker. Action by broker for specific performance of contract for sale of certain real estate. Petition examined and Ueld not to state a cause of action, as against a demurrer, for a money judgment on account of conspiracy between defendants, tlie owner of the real estate and the purchaser procured by the broker.</p>

<p>■ Appeal from. Wayne Comity Circuit Court. — Hon. E. M. Dearing, Judge.</p> <p>(1) This is an action for fraud and deceit, and the Statute of Frauds has no application. Leahy v. Leahy, 11 Mo. App. 413; Turner v. Johnson, 95 Mo. 431, 7 S. W. 570; Phillips v. Jackson, 240 Mo. 310,144 S. W. 112; Dramschroeder v. Thias, 51 Mo. 100; 20 Cyc. 280 (6); Clark v. Lumber Co., 5 So. 560; Kemp v. Bank, 109 Fed. 48; Stauffer v. Hulwick, 96 N. E. 154. (2) The statements and representations made by defendant to plaintiff were such that, if false, the law will impute to defendant a fraudulent purpose in'making them. Hamlin v. Able, 120 Mo. 188, 25 S. W. 516; Gibbons y. Bourland, 145 S. W. 274; Snider y. McAtee, 165 Mo. App. 260, 147 S. W. 136; Gottschalk v. Kircher, 109 Mo. 170, 17 S. W. 905; Bank v. Bank, 59 Fed. 338, 345. (3) The statements and representations made by defendant to plaintiff with reference to the check were made for the purpose of inducing plaintiff to accept the same instead of demanding cash, and were not made for the purpose of inducing plaintiff to extend credit to Drum. The transaction was understood by all the parties to be a cash transaction, and there was no mention of credit to anyone, therefore, the Statute of Frauds has no application. 20 Cyc. 196 (B) and cases cited;' Walker v. Russell, 186 Mass. 69, 71 N. E. 86; Newman v. Lyman, 165 S. W. 136; Hubbard v. Oliver, 173 Mich. 337, 139 N. W. 77; Stauffer v. Hulwick, 96 N. E. 154; Diel v. Kellog, 128 N. W. 420; Bush v. Sprague, 16 N. W. 222; Cottrill v. Crum, 100 Mo. 397,13 S. W. 753.</p> <p>(1) The Statute of Frauds precludes a recovery by plaintiff under the evidence. The representations complained of, if made, and although false, were concerning the credit, ability and dealings of Drum. A check is only an evidence of debt. R. S. 1909, sec. 2785; McKee v. Rudd, 222 Mo. 344; Knight v. Rawlings, 205 Mo. 412. (2) This being an action at law, actual fraud must be shown and the burden of showing same is on the plaintiff.' Before plaintiff is entitled to recover he must prove the scienter. Peters v. Lohman, 171 Mo. App. 465; Adams v. Barber,- 157 Mo. App. 370, 392; Snyder v. Stemmons, 151 Mo. App. 156; Lovelace v. Suter, 93 Mo. App. 429; Dunn v. White, 63 Mo. 181; Dulaney v. Rogers, 64 Mo. 201; Tootle Hosea & Co. v. Lysaght & Co., 65 Mo. App. 141; Bank v. Hutton, 224 Mo. 72. (3) Fraud will not be presumed. When a transaction under consideration consists as well with honest and fair dealing as with fraudulent purpose, it will be referred to the better motive. Avery Co. v. Powell, 174 Mo. App. 632; Garesehe v. McDonald, 103 Mo. 1; Smith v. Bank, 120 Mo. App. 544'; Schaaf v. Fries, 77 Mo. App. 360; Bank v. Hutton, 224 Mo. 72.</p>

— Eon. E. M. Bearing, Judge. (1) There is no evidence in this record that the plaintiff, James Robinson, had ever been in possession of the land in controversy at any time prior to the time when the defendant entered into the possession of the same, and was not in possession at the time the defendant entered.

- — Hon. Peter H. Huck, Judge. (1) While under recent adjudications it is held that proof of failure to comply with the statute by sounding a whistle or ringing a bell on approaching a public crossing, and the further proof that an animal was struck at such crossing raises a prima-facie presumption of negligence, yet where, as in this case, respondent’s own evidence shows that such failure was-not the cause of the collision, respondent was not entitled to recover.

- — Eon. L. B.c Woodside, Judge. The interpleader was in possession of the property at the time the attachment writ was levied, and the burden was on the plaintiff to show that he held a better title and right of possession than that claimed by the interpleader, whose possession under claim of ownership made a prima-facie case in his favor. Fairbanks-Morse Co. v. Stock Food Co., 151 Mo. App. 260, 263; Bank v. Boyer, 161 Mo.

<p>Appeal from Jasper County Circuit Court, Division Number One. — Eon. Joseph D. Perkins, Judge.</p> <p>(1) The court erred in excluding legal and competent evidence offered by tlie plaintiffs. Overby v. Min. Co., 144 Mo. App. 363; Crane v. Railroad, 87 Mo. 595-596; Deeds v. Railroad, 157 Mo. App. 464; Railroad -v. Wright, 115 Ind. 378, 16 N. E. 145, and 17 N. E. 584; Peerless Mfg. Co. v. Denham, 15 Ely. Law, 95; Walsh v. Chicago, 94 111. App. 311; Schiller v. Breweries Co., Í56 Mo. App. 569; Brunke v. Tel. Co., 115 Mo. App. 36; Hunt v. McNamee, 141 Fed. 293; Holland v. Railroad, 91 Ala. 444,12 L. R. A. 232; Fortney v. Marble Head Lime Co., 173 Mo. App. 404; Kan. and Tex. Coal Co. v. Brownlie, 60 Ark. 582, 31 S. W. 453. (2) The court érred in sustaining a demurrer to the evidence and in taking the case from the jury. A master is prima facie bound to instruct a servant as to all risks abnormal or extraordinary and of such a kind that the servant cannot be held chargeable with an adequate comprehension of their nature and extent or of the proper means by which to safeguard himself. The question whether the servant should be instructed and warned is for the jury. 3 Labatt, Master & Servant, sec. 1146, p. 3036-46; Same, vol. 3, sec. 1148, p. 3048-9; Osborn v. Adams Brick Co., 99 N. E. 530; Chinn v. Ferro-Concrete Cons. Co., 132 N. T. S. 850, 148 App. Div. 368; Hill v. Libby, 85 App. (Me.) 487; Giordano v. Brandywine Granite Co., 52 App. (Del.) 332; Tenn. Coal, I. & R. Co. v. Jarrett, 82 S. W. 224; Peters v. George, 154 Fed. 634, 83 C. C. A. 408; Martin v. At. Transport Co., 85 App. 29, 237 Penn. 15; Lavia v. Kountz Bros., 31 Pa. Sup. Ct. 48; Gammerson v. K. C. Bolt & Nut Co., 171 S. W. 961; Fortney v. Marble Head Lime Co., 173 Mo. App. 404; Brazille v. Caralina Barytes Co., 78 S. E. 215; Railroad v. Daergaard, 118 111. App. 67; Railroad v. Valerius, 56 Ind. 511; Penn. Co. v. Long, 94 Ind. 250; Erickson v. Monson Consol. Slate Co., 60 App. (Me.) 708, 100 Me. 107. (3) It is the duty of the master, who finds it necessary to use dangerous agencies in his business, to inform his servants not familiar therewith of the extraordinary risks incident thereto. The duty of warning is said to be especially imperative where the servant is required to handle dangerous explosives. Decatur Cereal Co. v. Boland,-95 111. App. 601; Spelman v. Fisher I. Co., 56 Barb. 151; Burrows v. Ozark W. L. Co., 86 Ark. 343; Rankel v. Buckstaff-Edwards Co., 120 N. "VY. 269; Reickert v. Plammond Pack. Co., 136 Mo. App. 565; Gheron v. Union Carbide Co., 151 Mich. 687,115 N. W. 718; Pinney v. King, 98 Minn. 160, 107 N. W. 1127; Wood v. McCabe and Co., 151 N. C. 457, 66 S. E. 433.</p> <p>(1) Under the allegations of the plaintiffs’ petition the burden of proof was upon the plaintiffs to show not only that Adrian C. Batesel was inexperienced in handling dynamite but also that the defendant had knowledge of such inexperience, and furthermore that knowing his incapacity to do the work of handling and firing the boulder pops the defendant required him to do such work. Nugent v. Kauffman Milling Co., 131 Mo. 241; Smith v. Forrester, Nace Box Co., 193 Mo. 715, 732; Hill v. Meyer Bros. Drug Co., 140 Mo. 440. (2) Elven though the affirmative testimony tending to show the experience of the deceased should be disregarded and it should be presumed that he was inexperienced in handling dynamite, yet there is no pretense that the defendant had any knowledge of the alleged inexperience, and hence the defendant is not liable on the theory of its failure to instruct the deceased. Fulwider v. Gas Light & Power Co., 216 Mo. 582-597; Wilks v. Railroad, 159 Mo. App. 725; Murphy v. Rockwell Eng. Co., 70 N. J. L. 374; 57 Atl. 444; 26 Cyo. 1167. (3) The omission of the defendant to instruct the deceased in regard to perils which he fully appreciated to as great an extent as the defendant could have informed him was not negligence. N. Ala. Coal & Iron Co. v. Beacham, 140 Ala. 422, 37 So. 227.</p>

— Hon. John T. Moore, Judge. (1) Under our practice act the court should have entered judgment against respondent on the pleadings as prayed for in appellant’s petition for the reason that this cause coming on for trial in the circuit court of Ozark county and respondent failing to plead to this action at such time, as required by statute, such could not be done after said term of court had'ended, and respondent was never granted time within which to plead.

— Hon. David E. Blair, Judge. Taking plaintiff’s own theory, there was at best only a joint cause of action in the plaintiff and defendant Dangerfield, and therefore plaintiff cannot recover in the present action at law. Anabel v. McDonald Land & Mng. Co., 144 Mo. App. 303; Clark v. Noble, 21 Mo. 225; Rainey v. Smizer, 28 Mo. 311, 312; Thieman v. Goodnight, 17 Mo. App. 435; Culver v. Smith, 82 Mo. App. 395, 396; Slaughter v. Davenport, 151 Mo. 31; Butler v. Boynton, 117 Mo.

<p>1. CRIMINAL LAW: Preliminary Examination: Information Need . Not Show. An information need not show on its face that the accused has been .accorded a preliminary examination.</p> <p>2. -: Procedure: Record: Motion to Abate Information. Prosecution for feloneous assault. The information did not Show that a preliminary examination had been held and the record was silent on the subject. The denial of a motion to abate the information because no preliminary examination had been held was not error, as such motion does not prove itself and no evidence in support thereof was preserved.</p> <p>2. ASSAULT: Evidence: Sufficiency. Prosecution for feloneous assault. ■ Evidence considered sufficient to support conviction for common assault.</p> <p>4. INSTRUCTIONS: Criminal Law: Harmless Error. Prosecution for feloneous assault. Defendant requested an instruction directing the jury to acquit him of feloneous assault. Since defendant was only convicted of common assault, if the refusal of the instruction was error, it was harmless.</p> <p>5. -: Criminal Law: Multiplying Instructions Unnecessarily. Where the trial court of its own motion gave instructions fully covering all phases of a criminal case; it correctly refused additional instructions which would have been merely repetitious.</p>

— How. E. M. D earing, Judge. (1) The fact that under our statute an accommodation maker, or surety, is jointly liable as a comaker does not annihilate the equities which attend the relation of principal and surety. Stolze v. Fidelity & Guaranty Co., 153 Mo. App. 34.

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

<p>COURTS: Jurisdiction: Construction of Revenue Laws. In an action for delinquent drainage ditch tax based on an assessment against defendant’s land under Secs. 5578-5635, R. 'S. 1909, a construction of the revenue laws of the State is involved and the Supreme Court has jurisdiction of the appeal.</p>

<p>1. APPEAL AND ERROR: New Trial: Grounds for: Burden of ..Proof. Appeal by defendant in whose favor judgment was rendered, from an order sustaining plaintiff’s motion for a new trial. The grounds specified in the order failing to justify same, the burden of justifying the’ action of the trial court rests. on the party who obtained the new trial and he must point out errors alleged to have been committed in the trial other than those mentioned in the order.</p> <p>2. -: -: Grounds Specified in Granting: Presumptions. Where- the trial court specifies reasons for granting a new trial, it is presumed that all other grounds mentioned in the motion were overruled.</p> <p>3. ' INSURANCE: Fraternal Benefit Societies: Agie Limit of insured: Evidence. Action to recover on a fraternal benefit certificate. Evidence as to the age of the insured at the time he joined the defendant association considered to show that he was, at that time, over forty-five years old, the age limit for applicants.</p> <p>4. -: -: Contract: What Constitutes. The contract entered into between a fraternal benefit society and its applicants, consists of the application, certificate and by-laws.</p> <p>5. -: -: Statements of Applicant for Membership: Untrue Statements Nullify Effect of Contract. Statements and answers made by an applicant for membership to a fraternal benefit society are considered as warranties and if such statements are untrue, neither the applicant nor his beneficiaries have any rights under the certificate.</p> <p>6. -: -: Knowledge Imputed to Applicant: Special Privileges.- An applicant for membership in a fraternal benefit society, which places certain restrictions on its members and officers, must take notice thereof. He is conclusively presumed to know the provisions of his contract and that he enters as one of a class and no officer has authority to give him special privileges, such as a waiver of the time limits for applicants.</p> <p>7. -: — : -1 — : Limitations of Powers of Officers: Waiver: Estoppel. The local secretary of a fraternal benefit society and the deputy head consul waived the age limit in the case of an applicant for membership. This did not bind the organization by estoppel, as the act was without authority under the bylaws and was not ratified.</p> <p>o. -: -: -: By-Laws. The officers of a fraternal benefit society are restricted in their powers by the by-laws and rules of the society made by the membership. They have no power to alter or set aside any by-law which affects the members in the nature of property rights and would work a change in the contract between the society and its members.</p> <p>9. -: -: -: Void Acts. The officers of a fraternal benefit society cannot admit to membership an applicant who is not eligible under the by-laws. Such an action would be a nullity.</p> <p>10. --: -: -: Estoppel of Society. Though officers of a fraternal benefit society have no power to waive the provisions contained in the by-laws to the effect that applicants over the age of forty-five years shall be ineligible to membership, yet if such officers have repeatedly done this_ and continue to violate such provision so as to charge the society with notice and the society fails to act with respect thereto, such age limit provision may be waived by estoppel. This, not because the officers had made a new rule that would be binding, but because the membership, by acquiescence and nonaction, with knowledge, changed the rule with respect to age.</p> <p>11. ESTOPPEL: When Not Invokable. Estoppel cannot be invoked by one who has in no way been misled.</p> <p>12. INSURANCE: Fraternal Benefit Society: Officers’ Statements: Estoppel of Society: What Not. An applicant for membership to a fraternal benefit society stated to one of the officers thereof that there was some doubt as to his age and discussed the matter pro and con with the officer. The officer stated that if the applicant was telling the truth he was acceptable and his application was taken. This did not constitute an estoppel as against the society.</p> <p>13. WAIVER: What Necessary to Establish: Knowledge. A waiver can exist only against one who has full knowledge of the facts.</p> <p>14. PROBATE COURTS: Orders: May Be Shown How. The approval of an order made by probate court need not necessarily appear from a formal entry of the order; it is sufficient if its approval be gathered from the whole record.</p> <p>15. GUARDIANS AND CURATORS: Settlement by Compromise with Insurance Society: Court’s Approval: Statutory Provisions, Curator of decedent’s children gave receipt of premiums paid by such decedent as a member of defendant fraternal benefit society, the probate court approving same. Held, sufficient under Sec. 423, R. S. 190.9, to relieve defendant society from liability under the policy.</p>

<p>1. APPEAL AND ERROR: Questions Not Settled in Record. Action against a street railway for personal injuries occasioned by collision with one of defendant’s cars. Plaintiff introduced an ordinance limiting the speed of street ears and defendant offered its franchise which fixed a greater rate of speed. The franchise was excluded upon the objection of plaintiff that it was passed prior to the ordinance. No showing was made that the franchise antedated the ordinance. On appeal defendant cannot rely on the failure of the record to show the respective dates of the franchise and ordinance.</p> <p>2. -: Objections to Evidence: Grounds Stated: These Alone Considered by Appellate Court. Where in the briefs and in the motion for a new trial the only objection urged by the defendant against the admission in evidence of an ordinance fixing the speed of defendant’s car was the unconstitutionality of such ordinance, this question alone will be considered by the appellate court.</p> <p>3. -: Requested Instructions All Given: When Appellate Court Will Not Consider Error. Where all of defendant’s requested instructions, as to imputed negligence were given by the trial court and these fully covered the defenses pleaded and shown, the appellate court will not consider the correctness of such instructions on appeal by defendant.</p> <p>4. STREET RAILROADS: Negligence: Contributory Negligence: Evidence. Action for injuries received by one while riding in an automobile which collided with one of defendant’s street cars. Evidence examined and considered not to show defendant guilty of contributory negligence as a matter of law.</p> <p>5. -: Speed Ordinance: Knowledge of by One injured. Action for injuries received by one while riding in an automobile which collided with one of defendant’s street cars. Where no contributory negligence on the part of the plaintiff is shown, plaintiff can rely for recovery on an ordinance limiting the speed of street cars, though - at the time of the injury he did not know of the existence of such ordinance.</p> <p>6. APPEAL AND ERROR: Objections to Evidence: When Not Passed on by Appellate Court. Where objections made by plaintiff to certain questions asked defendant’s witnesses by defendant were sustained but the witness answered the question regardless and no motion was made that the answer be stricken out, the appellate court will not consider the correctness of the ruling on defendant’s appeal.</p>

<p>1. COVENANTS: General: Special: Construction. General covenants are not restricted in their operation by limited special covenants unless the covenants are so irreconcilable that all cannot have their full force,'or unless the limited covenant refers to or is connected with the general covenant in such a manner as to show that the intention of the grantor was to restrain the force and effect of the general covenants.</p> <p>2. -: Deeds: Warranties: General Warranties. A warranty ■ deed contained the statutory words (Sec. 2793, R.' S. 1909) “grant, bargain, sell, convey and confirm;” the habendum clause being, “To have and to hold the premises aforesaid . . . unto the said party of the second part and unto her heirs and assigns forever, . . ; the said R. B. and E. B. hereby covenanting that they will warrant and defend the title to the said premises against all persons claiming by, through or under them. There are no liens or taxes against the aforesaid land and taxes for 1904 and previous years are paid.” Seld to be a deed of general warranty.</p>

— Hon. Joseph D. Perltins, Judge. Statement. — This is a suit brought by McMillan & Parker, a copartnership, for the purpose of establishing and enforcing a mechanic’s lien against property owned by defendant, The Ball & Cunning Milling Company, a corporation. The firm of Stone & Watts was also joined as a defendant, which firm was the original contractor in erecting an improvement on the land of The Ball & Cunning Milling Company.

<p>Appeal from Christian Comity Circuit Court. — Hon. John T. Moore, Judge.</p>

<p>Appeal from Texas County Circuit Court. — Hon. L. B. Woodside, Judge.</p>

<p>1. BILLS AND NOTES: Evidence: Parol: When Admitted to Explain Signature. Where it is doubtful from the face of a note whether it was intended as the personal contract of the individual signing it or as imposing the obligation solely on a third person as principal, whose name is also signed, parol evidence is admissible to show the true relation of the signer to the instrument.</p> <p>.2. -: Evidence: Parol: When Admitted to Explain Signature. Action on a note which read: “I, we or either of us as principals promise to pay, etc., . . .” At the usual place for the signature there was placed with a rubber stamp: “Blue Bell Mining Company” followed by two blank lines, the word “president” following the first and the word “secretary” following the sec.ond. Defendant’s name was signed on the first line, preceding the word “president,” another’s signature being on the second blank line. An ambiguity whs presented on the face of said note and parol evidence was admissible to show whether defendant signed individually as maker or merely in his official capacity as president.</p> <p>3. -: Note of Corporation: Signature by President: No individual Liability. Where defendant signed a note not in his individual capacity but as president of the corporation whose name the note also bore, and he was merely acting as agent 'for such corporation, no liability thereon attached to him personally.</p>

<p>1. APPEAL' ÁND ERROR: Assignments of Error: Evidence: Weight of. It is not the province of the appellate court to weigh conflicting evidence. Assignments of error that the-finding is against the evidence, against the weight of evidence and for the wrong party, mean merely that there is no substantial evidence to sustain the verdict.</p> <p>2. JURY: Waiver of Trial By: When Shown. Where the judgment recites that both parties announced ready for trial and “that all and singular the matters at issue were submitted to-the court sitting as a jury,” waiver of a jury trial is sufficiently shown, the- point being first raised on appeal.</p>

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

<p>1. COURTS: Jurisdiction: Title to Real Estate: Jurisdiction in Supreme Court. Action by owners of lots to prevent city from encroaching on their property with certain street improvements. Held to involve title to real estate and the cause is transferred to the Supreme Court. [Const. Art. 6, Sec. 12, Amendment 1884, Sec. 4.]</p> <p>2. -: -: -: When Involved. A number of owners of city lots brought suit against a city to have the boundaries of their lots ascertained and fixed at places where plaintiffs claimed the same had been established by plat and to enjoin the city from encroaching thereon. The judgment was for the defendant and so. established the boundaries as to result in depriving plaintiffs of a portion of their lots within the boundaries contended for by them. Held, that the title to real estate w?,s involved.</p>

<p>1. APPEAL AND ERROR: Theory of Case: Remains Same on Appeal. Action for labor performed. The words “partner” and “partnership” appeared from time to time in the testimony referring, to defendants, bnt the case was not submitted-on the theory that defendants were partners. The case should 'be tried on the same theory in the appellate court as in the court below.</p> <p>2. INSTRUCTIONS: Action for Services: Evidence. Action, against defendants for services rendered in hauling' logs. Evidence reviewed and instructions given in the light thereof field to have fairly and properly submitted the issue to the jury and that the verdict is supported by the evidence.</p> <p>3. CONTRACTS: Promise Without Consideration: Not Binding. Where a promise was given at the time part payment was made for hauling logs that the promisor would see that-the debtor did not get away owing promisee, it was merely a promise without a consideration and not binding.</p> <p>4. -: Promise to Pay for Labor: Evidence. Action for labor performed in hauling logs. Evidence reviewed and held not to show a promise by defendant that if plaintiff would continue hauling, defendant would pay for the hauling already done as well as that done in the future.</p> <p>5. -: Consideration: Original Promise. Where defendant promised certain persons hauling logs that he would be responsible for the pay if such persons would continue the hauling, this was not a nude pact or a promise to answer for another’s debt.</p>

<p>1. MASTER AND SERVANT: Personal Injuries: Orders of Foreman: Substitute Foreman. Action by servant against master for injuries received on account of being struck by certain timbers which be was loading on a railroad car. At tbe time of tbe injury the servant was working under orders given by a timber inspector of tbe purchaser of tbe timber who bad been temporarily left in charge of tbe work by defendant’s foreman. Under the principle of respondeat superior, defendant’s foreman having acted within tbe apparent scope of his employment in appointing tbe substitute foreman, defendant was responsible for any negligent order given by said substitute foreman.</p> <p>2. -: Superintendent of Master’s Work: Scope of Authority: Implied Authority. Tbe authority to superintend tbe loading of a car of timber, necessarily requiring considerable time and tbe use of a number of workmen, impliedly carries with it tbe power from the master to the foreman to delegate some one to act in such foreman’s stead during sucli times as he may be called away from such work on other duties.</p> <p>3. INSTRUCTIONS: Too Abstract and General: Error. An instruction which fails to furnish a proper guide for ' the jury because it is too abstract and general, is erroneous.</p> <p>4. -: Injuries: Negligence: Master and Servant. Action by servant against master for personal injuries received while loading a car with timbers. An instruction was erroneous which permitted the jury merely to find that defendant had not used ordinary care in furnishing a safe place to work without requiring the finding of facts, pleaded or proven, which would make the place negligently unsafe.</p>

<p>1. COURTS: Power and Duty to Correct Errors. The Court of Appeals has the power and a duty rests upon it, to correct its own errors either in another case involving the same question or on a subsequent appeal of the same ease.</p> <p>2. RAILROADS: Crossing Collisions: Signals: Jury Question. Action for death in crossing collision. There is considered to have been introduced sufficient negative evidence to the effect that statutory signals were not given to take such question to the jury, though there was positive evidence that the signals were given.</p> <p>3.--: Crossing Signals: Statutory Requirements: When Not Met. The statute which requires railroad locomotives to sound, whistles at intervals until a road crossing is passed, is not complied with by the operators of such locomotive sounding a few weak whistles at a whistling post 1487 feet from the crossing, no other signals being given.</p> <p>4. -: Negligence: Contributory Negligence: Jury Question. Action for death at a railroad crossing caused by a collision of deceased’s buggy and defendant’s locomotive, defended on the ground that deceased was guilty of contributory negligence in driving on the track without stopping. Such question was for the jury and the burden of establishing such contention was on the defendant. Evidence considered not to show as a matter of law that deceased was guilty of such negligence.</p> <p>5. -: Crossings: Duty of Traveller Approaching. While a duty rests on a traveler approaching a railroad crossing to look and listen and sometimes it is his duty to stop in order the better to see and hear, yet it is not always incumbent on him to stop for that purpose. Whether or not he should do so depends on the circumstances and if it is doubtful the jury are to judge.</p> <p>8. -: Crossing Collisions: Contributory Negligence: Elements In Determining. In determining whether deceased was guilty ■ of contributory negligence in driving upon a railroad crossing, failure of defendant railroad to give certain signals required by statute is properly taken into consideration.</p> <p>7. -: Negligence: Crossing Collisions: Contributory Negligence. Where one, on a public highway approaching a railroad crossing, can neither see nor hear any indication of an approaching train, he is not chargeable with negligence for assuming that there is no train sufficiently near to make the crossing dangerous.</p> <p>8. RAILROADS: Crossing Collisions: Negligence: Contributory Negligence. Action for death occasioned by collision between deceased’s vehicle and defendant’s locomotive at a railroad crossing. Evidence reviewed and considered not to show as a matter of law that deceased could have averted the accident when he saw, or by due care could have seen, the approaching train, or after he heard the danger signals given by the engineer.</p> <p>9. NEGLIGENCE: Contributory Negligence: Sudden and Unexpected Danger. The law does not require unreasonable things and where one is suddenly and unexpectedly confronted by a dangerous situation, contributory negligence will not be attributed to him merely because he does not act under such circumstances instantly and in the most intelligent manner.</p> <p>10. INSTRUCTIONS: Covering Entire Case. An instruction covering the entire case must not ignore any defense supported by evidence.</p> <p>11. -: Negligence: Submission of Plaintiff’s Case. A plaintiff does not have to submit his case on all the grounds of negligence alleged, even though there is evidence to support all.</p>

<p>1. MASTER AND SERVANT: Discharge of Servant: Incompetency: Neglect. Incompetency or neglect of duty gives a ground of discharge of a servant by the master.</p> <p>2. -: -: Wages Prior to Discharge Recoverable: Subject to Recoupment. Plaintiff was engaged for one year by defendants as manager of their dressmaking department, at certain monthly wages. . Where defendant was discharged for cause this does not prevent her recovering wages due for the time prior to her discharge. The amount recoverable, however, is subject to recoupment by the master for any damages suffered by him by reason of any neglect, unskillfulness or non-performances of the services.</p> <p>3. -: Wrongful Discharge of Servant: Burden of Proof. In an action against a master for the wrongful discharge of a servant before the expiration of the term of employment, the burden is on the master to show that the discharge was for good cause.</p> <p>4. -: -: -: -. In such case the burdeh of proving the contract of employment, entry upon the work and continuance therein until discharged is on the servant.</p> <p>5. TRIALS: Directing Verdict: When Peremptory Instruction Properly Refused. In an action by a servant for wrongful discharge by the master, pleadings and evidence reviewed and a peremptory instruction for defendant considered properly refused.</p> <p>.6. -: -: Evidence in Justification. Action for wrongful discharge by employer. of plaintiff who was employed as manager of defendant’s dress-making department, defended on the ground that plaintiff was incompetent. Evidence of the reputation of the bad work done by the employee for customers and of the bad reputation for doing unsatisfactory work of department under plaintiff’s management is admissible, under the contract in question.</p> <p>7. -: -: Evidence Admissible. In such case it is competent to show that complaints were made as to the work done by plaintiff and the department under her management, but details of such conversations should not be given unless inquired into on cross examination.</p>

— Eon„ Carr McNatt, Judge. Statement. — By this suit plaintiff sought to recover damages on account of the -loss of four fingers, on his left hand while engaged in operating a ‘ ‘ jointer ’ ’ in the machine shops of the defendants at Springfield, Missouri. The case was tried in the Lawrence county circuit court, resulting in a verdict for plaintiff for $10,000.

<p>Appeal from Greene County Circuit Court. — Hon. Guy D. Kirby} Judge.</p>

<p>1. CARRIERS: Carriers of Goods: Specific Acts of Negligence. Where plaintiffs sue a carrier for specific negligence in not keeping open the ventilators of a car in which a shipment of apples was made, they must recover on such specific negligence, it recovery is had.</p> <p>2. -: -: Connecting Carriers: Negligent Damage: Presumptions. Where goods are delivered in good condition to an initial carrier and are found to be damaged, due to negligence, when delivered by the terminal carrier at destination, and it is not shown which carrier is guilty of negligence, the presumption is that the last carrier has been guilty of the negligence.</p> <p>3. CONTRACTS: Interstate Commerce: Governed by Federal Statutes and Decisions. Concerning the validity of contracts relating to interstate shipments, the Federal interstate commerce act and the decisions of the Federal courts interpreting same, control.</p> <p>4. CARRIERS: Connecting Carriers: Liability of Through Carrier. A common carrier becomes liable for the negligent acts of a connecting carrier which it uses in making a through shipment either under an express or implied contract.</p> <p>5. -: -: Contracting for Transit Beyond Terminus of Line. While a common carrier cannot be compelled to carry goods beyond the terminus of its own line, it may contract to do so and thus assume all the obligations of the whole route so as to become liable for the delivery at a certain point, and the liability thus attaching at the commencement will continue through the entire transit.</p> <p>6. --: -: Carmack Amendment: Bill of Lading. Action against a carrier for damages to shipment of a car of apples. Though no bill of lading for a through shipment was issued, as required by the Federal act, if such shipment was undertaken, the Carmack amendment does not free the initial carrier from liability for the negligence of the connecting carrier.</p> <p>7. -: Through Shipment: Liability: Bill of Lading. Where defendant carrier issued a bill of lading only to the end of its own line, but undertook to transport a car of apples beyond such terminus, fixing a through rate, there was a through carriage which rendered defendant liable for the negligence of the connecting carrier, the goods being transported to the ultimate destination, the shipper having no contract with the connecting carrier.</p> <p>8. -: Bills of Lading. A bill of lading issued by a carrier to a shipper does not make the contract, but only evidences it.</p> <p>9. -: Carriers of Goods: Law Applicable. Action against a carrier for damages to a shipment of apples, the shipment having been made over connecting lines. If at the terminus of the initial line in Arkansas an agreement concerning further transportation over the line of a connecting carrier was had, the destination being another point in the same State, the shipment was intrastate and the statutes of Arkansas would , govern.</p>

<p>Appeal from Pemiscot County Circuit Court. — Hon. Frank Kelly, Judge.</p>

<p>Appeal from Greene County Circuit Court. — Hon. Arch A. Johnson, Judge.</p>

Louis City Circuit Court. — Hon. William T. Jones, Judge. Held: of any amount paid in satisfaction of such judgment; that pursuant to said agreement, I did file on said 12th day of April, 1910, an amended petition, as aforesaid, and that thereupon upon the same day defendant filed its answer thereto; that a stipulation for judgment, as aforesaid, was likewise signed and filed on said day, and at…

Louis City Circuit Court. — Hon. ■ Thomas G. Hennings, Judge. (1) The court erred in overruling the demurrer to the evidence. Three grounds of negligence were charged: First, leaving the piles in question in their “burred” condition. Second, negligently operating the engine, so as to set fire to the piles and trestle. Third, negligently failing to extinguish the fire.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) The demurrer to the evidence was properly overruled. The case was one for the jury. Maginnis v. Railroad, 165 S. W. 849. (2) The facts and the law of this case are res adjudicaba. (1) A clear case of contributory negligence on part of Maginnis was disclosed by the evidence. There was no showing of facts justifying the application of the humanitarian doctrine.

<p>APPELLATE PRACTICE: Conolusiveness of Findings. In an action at law, tried to the court, the finding on the facts will not be disturbed on appeal, if there is any substantial evidence to sustain it.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) In the exercise of its' judicial discretion, the court may, upon consideration of a motion for alimony pendente lite, inquire into the merits of the pending controversy; and should do so if the action appears upon the face of the verified pleadings to he frivolous and merely for the purpose of extorting money from the husband. Adams v. Adams, 49 Mo. App. 592; 2 Bishop on Marriage and Divorce, see. 936; 14 Cyc. 754.

Louis City Circuit Court. — Hon. Rhodes E. Gave, Judge. (1) The judgment against plaintiff in this case does not bar the plaintiff from instituting another suit for the same collision, there being no place alleged in the petition where the collision occurred, except Twentieth street between O’Fallon and Division streets. Weil v. Greene Co., 69 Mo. 286; Reed v. Wilson, 41 N: J. L. 29; Gillet v. Fairchild, 4 Denio (N. Y.), 80.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The period of sixty days prescribed by the policy must elapse before the assured can sue for payment of the loss; the clause in the policy operates as a condition precedent. Dwelling-House Ins. Co. v. Shaver, 52 111. App. 326; Clemens v. American Ins. Co., 70 App. Div. 435, 75 N. Y. Supp. 484; First Nat. Bank v. Dakota Ins. Co., 6 S. D1. 424, 61 N. W. 439; Herman Ins. Co. v. Hall, 1 Kan.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) It is not negligence for a master to order a servant to do certain work or quit the employment of the master. Pulley v. Standard Oil Co., 136 Mo. App. 175. (2) (a) There is no evidence that plaintiff did not understand the danger, (b) Tke danger was open and obvious, hence instructions were unnecessary and would have been useless. Nugent v. Milling Co., 131 Mo. 241; Hirsch v. Freund Bros. Bread Co., 150 Mo.

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) Where a contract is the basis of a suit, it must be shown, not in part, but in its entirety, and where by the terms of the benefit certificate, or by the terms of the preceding application for membership and accompanying medical examination, or either of these papers, each is made part of the other and of the benefit certificate, they constitute all together, the contract of insurance, in its entirety, and all of…

<p>1. BUILDING RESTRICTIONS: Action to Enjoin Violation: Venue. An action to enjoin the violation of building restrictive covenants constituting equitable easements running with the land is one in which the title to the land “may be affected,” within Sec. 1753, R. S. 1909, which provides that suits whereby the title to real estate may he affected shall be brought in the county ■ where the real estate is situate, and hence such a suit is properly brought in the county where the land is situated, although the owner resides within another county.</p> <p>2. JURISDICTION: Courts: Raising Question Sua Sponte. Courts may of their own motion raise the question as to whether they have jurisdiction.</p> <p>3. COURTS OF APPEALS: Supreme Court: Jurisdiction: Title to Real Estate “Affected” but not “involved.” An action to enjoin tbe violation of building restrictive covenants constituting equitable easements running with tbe land, although “affecting the title” to the land, does not directly involve the title, within the Amendment of 1884 to Art. VI of the Constitution, and hence the Court of Appeals has jurisdiction of such a case, on appeal.</p> <p>4. BUILDING RESTRICTIONS: Nature: Covenants Running With Land. A building restriction applicable to certain lots, binding the owner thereof not to erect improvements thereon that do not conform to the designated standard, is classed as an equitable easement running with the land.</p>

Louis City Circuit Court. — lion. Wilson A. Taylor, Judge. (1) Proofs of death furnished to the insurance company are prima-facie evidence of the facts therein stated, and are conclusive, unless the beneficiary shows that the statements made therein were erroneous, or were given through mistake. Almond v. Modern Woodmen of America, 133 Mo. App. 382; Mutual Benefit Life Ins. Co. v. Newton, 22 Wall. (U. S.) 32; ILassencamp v. Life Ins. Co., 120 Fed. 475; Hanna v. Life Ins.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) An executor or administrator may employ counsel and charge the estate therefor if the charge so made is reasonable and the services of counsel are actually rendered and are necessary to the administration of the estate; otherwise, the executor or administrator will not be allowed to take credit in his settlements for sums so expended. In re Estate of Souland, 141 Mo. 642; In re Estate of Prey, 96 Mo.

Louis City Circuit Court — Hon. Irvin V. Barth, Judge. The case was decided below on the theory that because garnishee is chief of police and therefore a municipal officer, that under Sec. 2431, R. S. 1899, he is exempted from garnishment and under no circumstances can he be subject to a garnishment proceeding. This view we think is not sustained in McG-arry v. Coal Co., 93 Mo. 237; Hoker v. Hennessey, 141 Mo. 527; Calumet Paper Co. v. Ptg.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. • (1) (a) The policy in suit provides for an unconditional cash surrender value. This cash surrender value is all that plaintiff was entitled to, and this was tendered. See. 6949, R..S. 1909; Epperson v. Ins. Co., 90 Mo. App. 432; Nichols v. Mut. L. I. Co., 176 Mo. 355; Fahle v. Ins. Co., 155 Mo. App. 15; Chandler v. Ins. Co., 180 Mo. App. 394.

Louis City Circuit Court. — lion. Wilson A. Taylor, Judge. (1) Plaintiff having assaulted defendant’s character for morality, virtue and decency, and having tendered an issue on such matter, defendant had a right to show his general reputation was good in such respect and thereby meet the issue presented. Ross v. Grand Pants Co., 170 Mo. App. 291.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) Proofs of death furnished to the insurance company are prima-facie evidence of the facts therein stated and are conclusive unless the beneficiary shows that the statements made therein were erroneous or were given through mistake. Almond v. Modern W. of A., 133 Mo. App. 382; Mutual Benefit Life Ins. Co. v. Newton, 22 Wall (U. S.) 22; Hassencamp v. Life Ins.

<p>Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.</p>

Louis City Circuit Court. — Eon. William T. Jones, Judge. The demurrer to the evidence should have been sustained: (a) Because the uncontroverted evidence shows that both of the policies sued on had, by the terms of the policies themselves, lapsed and become void on June 9, 1910, for non-payment of premiums due May 9, 1910 — on that day or within one month of grace allowed thereafter — and the records of appellant show that these policies were declared lapsed and void on…

Louis City Circuit Court. — Hon. Rhodes E. Gave, Judge. (1) (a) If one sues upon a note winch is payable to a third person alleging in the petition an indorsement thereof by the payee to petitioner, the said indorsement must be proven as alleged. Dunlap v. Kelly, 105 Mo. App. 1; Mayer v. Old, 51 Mo. App. 216; Dorn v. Parsons, 56 Mo. 601; Covit v. Thorp, 30 Mo, App. 131, 133, 134; Discount Co. v. Becker, 138 Mo. App. 54; Wade v. Boone, 168 S. W. 360.