Volume 194 — Missouri Appeal Reports

<p>1. CONTRACTS: Pleadings: Express Contracts: Quantum Meruit. Where a party sues, founding his petition solely upon an express contract, there can he no recovery on the qumvbwn mentit nor, in fact, any recovery at all on such petition, unless he has established the fact that he has substantially performed the terms and conditions and requirements of the contract.</p> <p>2. SALES: Specific Contract of Sale: Acceptance of Goods: Breach of Warranty. Plaintiff sold and delivered under an express contract, a carload of onion crates to defendant who kept and used the major portion of same. In an action by the seller for the unpaid balance of the purchase price, the buyer cannot defend on the ground that the crates were defective and undersized. The vendee’s remedy is to counterclaim on any alleged broken warranties and thereby reduce, if he can, the amount of the vendor’s recovery on the contract.</p> <p>3. -: -: Breach of Warranty: Remedies of Buyer. Defendant purchased by express contract a carload of onion crates from plaintiff paying the seller in full upon receipt. In case the orates are defective or too small, tile remedy of tlie buyer is either a suit on the covenant of warranty that the crates should be up to a certain standard or a tender back of the crates within a reasonable time and suit for the purchase money.</p>

<p>1. JUSTICES OF THE PEACE: Appeal From: Bond: Parties. Action. on appeal bond signed by defendant, an administrator, and others. The garnishee appealed from a judgment rendered against him in justice court. There was nothing to indicate that the defendant signed the bond in a representative capacity. Sec. 7568, R. S. 1909, relating to appeals from justice courts does not require appellant to sign the bond. Defendant was properly made a party to the action against the sureties on the bond.</p> <p>2. PLEADINGS: Action on Appeal Bond: Justice Courts. Action on appeal bond given by defendant who appealed from an adverse judgment in a justice court. Petition examined and held to state a cause of action.</p> <p>3. APPEAL AND ERROR: Indexing Abstract: Rule of Appellate Court. Under rule 15 (Springfield Court of Appeals) an abstract is required to be indexed. Yet an appeal will not be dismissed because the abstract was not indexed where it covered only four pages, consisting merely of petition and demurrer.</p> <p>4. -: Assignment of Errors: Rule of Appellate Court. Rule 18 (Springfield Court of Appeals) requires a statement of the points relied on in appellant’s brief. This requirement was sufficiently complied with where under a specific heading “Assignments of Error” appellant in his brief set out the points containing statements of error followed by citations of authorities.</p>

<p>Appeal from Jasper County Circuit Court. — Hon. F. L. Forloiv, Special Judge.</p>

<p>1. CONTRACTS: Damages: Sale of Cattle. This is an action for damages for breach of a contract for the sale of "about 900 two-year-old steers.” The sellers delivered 687 bead and agreed to deliver the remainder later if found on the ranch of the persons from whom they had previously purchased them. No more were delivered, the seller claiming none were subsequently found on that ranch. The damage claimed was the difference between the contract price and market value at the time and place of delivery It was held that the contract did not express an un- - qualified and unconditional obligation on the part of the defendants to deliver 900 head of cattle; that the purchaser knew when the contract was made that the exact number of two-year-old steers on the ranch was not known to the sellers or those from whom they bought them and could not be ascertained until the round-up for delivery and that therefore the purchaser was not entitled to the damages claimed.</p> <p>2. EVIDENCE: Parol. An explanation or enlargement of the terms of a written contract by parol evidence is admissible in evidence, where the writing signed by the parties shows on its face that it is incomplete and does not purport to, be a complete expression of the entire contract.</p>

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

<p>1. RAILROADS: Negligent Injury to Property: Petition: Sufficiency. Action against defendant railroad because of damage to plaintiff’s building. Tbe charge in the petition was that defendant’s employees negligently backed a railroad car off the end of a switch, where it did not belong, and into plaintiff’s engine house, to plaintiff’s damage. This was a sufficiently specific charge of negligence.</p> <p>2. NEGLIGENCE: Res Ipsa Loquitur. The application of the res ipsa, loquitur doctrine is not limited to any particular class of cases.</p> <p>3. -: -: Damage to Property by Railroad: Where servants of defendant railroad who were operating a train backed a car off the end of a switch and into plaintiff’s building, the facts raised a presumption of negligence for plaintiff under the res ipm loquitur doctrine.</p>

<p>1. LOANS AND PLEDGES: Collateral: Failure of: Liability of Parties. A loan was made by plaintiff to one of the defendants and the loan co.ntract signed by the other defendants. It was the belief of all concerned that no personal liability would be enforced because of the value of the collateral, which under a mistake of law was pledged as security. On failure of title to the collateral, those personally obligated by the loan contract to repay are not relieved.</p> <p>2. -: Insurance Policy: Personal Obligation.. Plaintiff insurance company and defendants, the insured and his wife and children, entered into an agreement whereby a loan was made by the company on a life policy. Contract set out and examined and held that a personal obligation to repay was thereby imposed on defendants.</p> <p>3. -: -: Payment of Loan: What Not. Plaintiff insurance company loaned to insured a certain sum, the loan contract being signed by the insured and the other defendants (his wife and children), insured’s policy being the pledge. Before the pledge the surrender value of the policy had. become vested in the trustee in bankruptcy of the insured. The fact that the company attempted to apply the surrender value of the policy to payment of the debt, as authorized by the pledge, did not constitute a payment of said loan.</p>

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

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

<p>1. CORPORATIONS: Foreign Corporations: Requirements as to: Statutes: Purpose. The purpose of sections 3i037, 3041, R. S. 1909, relating to the requirements as to foreign corporations doing business in Missouri, is to place such foreign corporations on an equality with domestic corporations and to impose the same burdens on them that domestic corporations have to bear.</p> <p>2. -: -: “Doing Business:” Statutory Requirements. The term “doing business” as used in reference to. foreign corpora-; tions “doing business” within Missouri is synonymous with conducting, managing and directing the business</p> <p>3. -: -: Failure to Meet Requirements of Statute. Plaintiff, a foreign corporation, which had failed to comply with sections -3037-S'041, R. S. 1909, relating to the requirements of foreign corporations doing business in Missouri, contracted with certain residents to furnish a Chautauqua of a week’s duration, provide the talent for the program, look after advertising and furnish the tent and seats therefor and employ door keepers and ticket sellers. Plaintiff corporation advertised in the newspapers that the enterprise was a permanent one and its agents sold tickets and arranged preliminary matters. The corporation was “doing business” within the State within the meaning of the statutes and not having complied with the' requirements of the statutes relating thereto could not sue on the contract.</p> <p>4. -: -: -- — : Void Contracts. The entering into ■ such a contract is an unlawful act and the contract is void.</p> <p>5. INTERSTATE COMMERCE: Term Includes What. “Interstate Commerce” is not necessarily the sale of goods. It includes negotiations or contracts and dealings between citizens of different States 'which- contemplate and cause importation Whether it be goods, persons or information.</p>

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

<p>1. TELEGRAPHS AND TELEPHONES: Non-Delivery of Messages: Liability for Neglect of Employees. A telegraph company is liable for special damages occasioned by the failure or negligence of its operators or servants in receiving, transmitting or delivering dispatches, (See. 3334, R. S. 1909,) and this liability exists regardless of whether or not there was a completed contract between the negotiating parties to a transaction.</p> <p>2. ........: Pleadings: Statement of Cause: Sufficiency. Action against a telegraph company for failure to deliver a message. Petition examined and held to state a cause of action.</p> <p>3. - — : Failure to Transmit Messages: Measure of Damages. Action in tort against defendant telegraph company for damages on account of defendant’s failure to transmit and deliver a telegram. The damages recoverable under Sec. 3334, R. S. 1909, are such as might reasonably have been expected to occur under the particular circumstances.</p> <p>4. ———: -: Damages: Forms of Action. Where a telegraph company failed to transmit and deliver a telegram, the purpose of which was to close a contract for the sale of certain apples, and where, on account of such failure,, the sender was prevented from making the deal and suffered damage, the sender has two forms of action, one in tort the other in contract.</p> <p>5. -: Failure to Transmit Message: Damage: Evidence. Plaintiff delivered to defendant telegraph company a telegram for transmission which was an acceptance of an offer hy another party to sell to plaintiff a quantity of apples at a certain price. The telegram was not delivered to the party mating the offer and that person sold the apples elsewhere. Plaintiff relying on the transmission and delivery of the telegram hy defendant company resold 800 barrels at a profit of 73 cents per barrel. The sale could not be completed, however, because' plaintiff could not then secure the apples from the one to whom he had sent the message nor elsewhere except at the price for which he had bargained to resell. A judgment for $549.80 held supported by this evidence.</p> <p>6. -: -: Damages: Minimizing: Evidence. Action against defendant telegraph company for damages because of failure to transmit and deliver a telegram which accepted an offer to sell 800 barrels of apples to plaintiff, which plaintiff had contracted to resell at an advanced price. Evidence examined and held not to show that plaintiff could have minimized the damages sustained by purchasing other apples for the resale.</p>

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

<p>Appeal from Dunklin County Circuit Court. — Hon. W. 8. C. Walker, Judge.</p>

<p>1). LAND TITLES: Limitations: Color of .Title and Possession. While color of title is not necessary under the thirty-year Statute of Limitation, lawful possession for one year as distinguished from that of a “squatter” is necessary.</p> <p>2. MORTGAGES: Grantee of Mortgagor: Relation to Mortgagee. The grantee of a mortgagor of land is not in such relation to the holder of the mortgage as to forbid his acquiring and setting up an outstanding title to the land adverse to the mortgagee.</p> <p>3. EVIDENCE: Death: Hearsay Evidence of. Hearsay evidence of death derived from the immediate family of the deceased, may be sufficient evidence of death.</p> <p>4. -: ———: -: When Insufficient. Hearsay evidence of death from one not related to deceased or deriving his information from the family or relatives, considered insufficient to establish the fact of death or show that a deed was a forgery because made after the death of one purporting to execute same.</p>

<p>Appeal from Carter County Circuit Court. — Hon. W. N. Evans, Judge.</p>

<p>Appeal from New Madrid County Circuit Court. — Hon. Sterling H. McCarty, Judge.</p>

<p>Appeal from Jasper County Circuit Court. — Hon. Allen McReynolds, Special Judge.</p>

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

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

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

<p>1. MORTGAGES: Assuming Incumbrance: Fraud: Transfer of Property. Plaintiffs held a note secured by a deed of trust on land which was later conveyed to defendant. The deed contained a fraudulent covenant obligating the defendant to pay off the deed of trust but plaintiffs were not misled thereby and the covenant was without consideration. Though defendant retained the deed after learning of the fraudulent insertion and later conveyed same, the covenant was not binding on him.</p> <p>2. APPEAL AND ERROR: Jury Finding. The finding of a jury on controverted facts under proper instructions is binding on appeal.</p> <p>3. MORTGAGES: Assuming Incumbrance: Rescission. A grantee who took a deed containing a covenant to assume payment of an incumbrance Mid not liable to the holder of the incumbrance on the ground that he should have rescinded.</p> <p>4. INSTRUCTIONS: Harmless Error. Action on a covenant contained in a deed to assume an .incumbrance. The deed was not produced at trial nor had it ever been recorded. The grantee did not see the deed for some time after its execution and delivery to the co-defendant. An instruction that if the covenant was inserted after delivery the grantee was not liable is harmless, though erroneous.</p>

<p>Error to Howell County. — Eon. W. N. Evans, Judge.</p>

<p>Appeal from Pulaski County. — Hon. L. B. Woodside, Judge.</p>

<p>1. INDICTMENTS AND INFORMATIONS: Prosecution for False Affidavit: Sufficiency of Indictment. Prosecution for making a false affidavit before a notary as to fire loss with, intent to defraud a fire insurance company, the sufficiency of the indictment being attacked. The statutes under which the prosecution is brought and the indictment are examined. The indictment is held good as against objections urged.</p> <p>2. -: Indictments for Felony: More Strictness as to Same than as to Indictments for Misdemeanors. The same strictness with respect to indictments is not required in cases of misdemeanors as in cases of felony.</p> <p>3. CRIMES AND PUNISHMENTS: Perjury: False Affidavits. Prosecution for making false affidavit as to fire loss with intention of defrauding an insurance company, the indictment being based on Sec. 4348, R. S. 1909. The accusation is considered in the light of the provisions of Secs. 4344, 6351, 10178, R. S. 1909, and it is held that the accused is guilty of the offense charged notwithstanding the fact that the affidavit might in part be true and regardless of whether the insurance policies were really issued or enforceable or whether the insurance company had power to issue policies in the State.</p> <p>4. CRIMINAL LAW: Indictments and Informations: False Affidavit: Sufficiency of Indictment. Prosecution for making a false affidavit as to fire loss. The indictment held sufficient though not alleging whether the companies were corporations or partnerships.</p> <p>5. -: Perjury: False Affidavits: Defenses. The fact that the insurance company requested defendant to make an affidavit is not a defense in a prosecution for making a false affidavit in respect to fire loss.</p> <p>6. -: -: -: Defenses. Prosecution for making a false affidavit as to fire loss. Evidence as to the origin of the fire was properly excluded. However the fire may have started defendant would not be justified in making a false affidavit of the amount of his loss.</p> <p>7. -: -: -: Evidence. Prosecution for making a false affidavit as to fire loss. The ac'cused was engaged in buying, storing and selling wheat. Evidence that he had bought certain quantities several months previous to the fire would not be admissible in evidence unless followed by evidence that he retained possession thereof.</p> <p>8. WITNESSES: Character Witnesses: Impeachment. Where ac-. ■ cused was a witness for himself and also placed character witnesses on the stand, it was proper to permit a witness who lived within a mile and a half of the accused to testify as to accused’s reputation for truth and honesty in the vicinty.</p> <p>9. -: Examination of Accused: Cross Examination, The accused may be cross examined as to matters concerning which he testified in chief.</p> <p>10. INSTRUCTIONS: Conformity to Pleadings. Prosecution for making a false affidavit in regard to loss by filre. The accused was charged in the indictment with making a false affidavit that he lost “about 2000” bushels of wheat. An instruction refering to a loss of 2000 bushels, which in another place inserted the word “about” was- not erroneous as tending, to mislead the jury to believe the accused guilty if he did lose that exact amount.</p> <p>11. -: False Affidavits. . Prosecution for making a false affidavit. An instruction that the accused should be acquitted if he “honestly” 'believed the statement made was not erroneous. The use of the word “honestly” does not add to the word believe.</p> <p>12. CRIMES AND PUNISHMENTS: False Affidavit: Evidence. Evidence considered sufficient to warrant conviction in a prosecution for making a false affidavit.</p> <p>13. CRIMINAL LAW: Verdict: What not Objectionable in. A verdict signed “Foreman, J. H. Eagon,”'is not bad merely because the word “Foreman” preceded in place of followed the name.</p> <p>14. -: Verdict: Discrepancies: When Immaterial. Though the panel referred to in the judgment showed only “John Eagon” as a juror, a verdict signed by “J. H. Eagon,” as foreman was sufficient, the trial court having opportunity for ascertaining the identity of the person who signed the verdict.</p> <p>15. -: -: Judgment. A judgment on a verdict finding accused which, directed that cabals execution should issue was proper under Sec. 6276, R. S. 1909', the court being authorized to hold the accused in custody until payment of the fine.</p>

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

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

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

<p>1. INSURANCE: Contracts of: Non-Forfeiture Statutes: Not Applicable t;o Policies Issued Previously to its passage. The Noruforfeiture laws providing for extended and paid-up insurance. (Sec. 7987, R. S. 1909), cannot effect or changa the terms of an insurance policy issued previously to the passage of such law.</p> <p>2. -: Life Policy: Equitable Value: Reserve Fund. The equitable value of a life insurance policy constitutes its reserve fund.</p> <p>3. ——■—: - — : Loan on: Construction. A provision in a loan agreement between an insurer and the insured was that in case of death the amount due on the loan obligation should be deducted from the amount of the policy. This provision meant that if the assured died while the policy was in force and the indebtedness was outstanding and unpaid, such indebtedness should be deducted from the amount of the policy.</p> <p>4. -: -: Extended Insurance: Deduction of Loan:. Statutes. In the matter of a loan on a life insurance policy the insurer applied so much of the statute, then in force, but not binding on it, as authorized one-fourth of reserve. It was not bound to apply the other part of the statute forbidding deduction of a loan from reserve before three-fourths of reserve was applied to purchase extended insurance.</p> <p>5. —-: -: Loan on: Reserve Value: Agreement. Under a loan agreement on an insurance policy a provision that upon default the pledge of the policy should he foreclosed by satisfying the indebtedness out of its reserve or surrender value and the balance, if any, paid to the assured in cash or applied to the purchase of extended or paid-up insurance is a reasonable and practicable method of terminating the contract and is not inconsistent with sound policy or violative of the substantial rights of the pledgor.</p> <p>6. --: Duty of Insurer to Assured. The insurer is held as a trustee to fairly and 'properly treat the assured.</p>

<p>Appeal from New Madrid County Circuit Court. — Eon. Sterling E. McCarty, Judge.</p>

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

<p>1. CONTRACTS: Ambiguity: Evidence. Where a writing creates a relationship between two parties in an ambiguous manner it is open to evidence aMunde.</p> <p>2. -: Principal and Agent: Purchase by Agent from Principal: Law Examines Closely. Where the relation of principal and agent exists, the law scrutinizes closely purchases made by such agent from his principal when same are attacked, and before such purchases are allowed to stand the contract of agency must be terminated.</p> <p>3. PRINCIPAL AND AGENT: Agent Withholding Information: Benefiting Thereby: Illegality. Where the relation of principal and agent exists and the agent finds out that there is a purchaser who will buy the principal’s- land at a given price, he will not be permitted to withhold that information from the principal and get the property in his hands and make such sale at an advantage to himself.</p> <p>4. -: Unfair Advantage Taken by Agent: Remedy. Where an agent has taken an unfair advantage of his principal, equity will compel him to disgorge the profits accruing therefrom.</p> <p>5. -: -: Liability of Agent. The principal, an owner of land, was a man over eighty. He made an option contract for the sale of said land with his agent, who secretly procured a purchase at a price less than that fixed in the option and purchased for himself, through a straw man, said property. He took undue and unfair advantage of his principal and was liable for the profits therefrom.</p>

<p>1. RAILROADS: Injuries to Persons on Tracks: Review of Evidence: Sufficiency. Action for death of plaintiff’s husband killed by defendants’ freight train while it was backing over a trestle. Plaintiff bases defendants’ liability on the humanitarian, doctrine in that defendants’ servant whose duty it was to keep a lookout at the rear of the train while backing, failed to perform this duty, which if he had done the injury could have been averted. Evidence reviewed and deemed sufficient to warrant the jury in finding that deceased had passed the caboose and gone upon the trestle before the train backed up and that no trainman was at the rear end of the train who could or did look out for a clear track or take steps to avert danger.</p> <p>2. -: -: Track Customarily Used by Pedestrians: Duty of Trainmen. Action for death of plaintiff’s husband occasioned by defendants’ freight train backing on and running over deceased while crossing a trestle of defendants. On each end of the trestle was a sign “Keep off.” Much switching was done at and near this point but there were no side tracks along.this part of defendants’ road. The evidence showed that for a long time the track and trestle had been used extensively by pedestrians, including children, many times each day, so much, in fact, that the ties were worn so as to show a distinct footpath. It was the duty of defendants’ trainmen to anticipate and look out for persons on the track at this point.</p> <p>3. —-: Injuries: Humanitarian Doctrine. In an action against a railroad for damages because of the death of plaintiff’s husband, in order to invoke the humanitarian doctrine it must be proven tliat the person in peril was visible by the trainmen while in peril, and that the fact of his peril was reasonably apparent . in time to have averted the injury by the use of the means at hand.</p> <p>4. NEGLIGENCE: Contributory Negligence': Right to Recover Notwithstanding. Though plaintiff’s husband, who was killed by defendants’ train backing on and running over him, may have been guilty of negligence and though such negligence may have contributed to the injury, yet if by the exercise of ordinary care defendants’ servants could have discovered his peril and avoided the result, the negligence of the deceased is immaterial.</p> <p>5. -: Care Required Even as to Trespassers. Even as against a wrongdoer or a trespasser, ordinary care is a primary duty.</p> <p>6. RAILROADS: Negligent Killing, of Pedestrian on Track: Humanitarian Doctrine. The humanitarian doctrine is applicable in an action against a railroad for negligently backing its train upon and running over and killing plaintiff’s husband who was crossing defendants’ trestle where the evidence shows that deceased passed the caboose and went upon the trestle before the train hacked up, that no trainman was at the rear end of the train to keep a lookout that the track was clear and avoid injury to anyone, that the trestle was regularly used by pedestrians and that the trainmen could, by due care, have seen deceased while in peril and realized the fact of such peril in time to have averted his injury.</p> <p>7. -: -: Contributory Negligence: Humanitarian Doctrine. Under the facts stated, so far as defendant’s duty to deceased is concerned, it is immaterial whether deceased was drunk or sober, walking along the track or sitting or lying down thereon.</p> <p>8. DEATH: Damages: Amount Warranted. A recovery of $5000 was warranted in an action against a railroad for negligently killing plaintiff’s husband, where it was shown that deceased was a farmer twenty seven years of age, in good health and that he left a wife and three children.</p> <p>9. INSTRUCTIONS: Right to Request More Specific. Where either party, in an action for death on a railroad track, desires a inore specific instruction as to what should be taken into account in determining the amount of the verdict, such party should request such an instruction.</p>

<p>Appeal from Johnson Circuit Court. — Hon. Sam’l Davis, Judge.</p>

<p>1. INJUNCTIONS: Municipal Corporations: Use of Property Purchased by a City.</p> <p>This action was brought by the plaintiff, a taxpayer, to enjoin the defendants from maintaining a garage for police automobiles on land purchased by it in fee simple for a public market. The trial court merely enjoined the defendant from using it for other than market purposes, and defendants appealed. Held, that the writ should have been denied as the agreed facts disclose no effort or purpose of the city to use the market house in -a manner to infringe upon or impair the special public use which the proceeds of the bonds were intended to serve.</p> <p>2. -: -: -. The purpose the city has in making a purchase of land cannot be invoked to limit or qualify the estate granted which, as stated, was a fee simple estate.</p>

<p>1. INJUNCTIONS: Intoxicating Liquors: Nuisance. The Prosecuting Attorney of Benton county sought to enjoin the defendant from running a wholsale liquor house, duly licensed. No showing was made that the defendant sold any liquor in quantities less than the law permitted him to sell as a wholesaler, nor was any liquor, thus sold at wholesale, consumed upon the premises of defendant or at places under his direction or control. There was no evidence of the evasion of any law. The liquor house was located near the boundary lines of Johnson, Pettis and Henry counties, in all of which the Local Option Law was in force, and it was charged that the purpose of establishing it so near these counties was to evade that law. The real basis of the action, however, was that the business was condufcted in such a way as to constitute the same a public nuisance. It was held that the evidence failed to establish the defendant’s business was conducted in such a way as to constitute it a public nuisance, which is the only ground upon which a court of equity has a right to interfere in such cases.</p> <p>2. -- — : -- — : -. A business licensed by law, cannot be enjoined and closed up in a court of equity, because of the individual acts of persons alleged to be its patrons, committed away from the place of business and at different times and places. The jurisdiction of a court of equity does not. extend that far. If, however, one operates a business duly authorized by law, but conducts it in such a manner as to create a public nuisance, then a court of equity will enjoin him.</p>

<p>1. GUARDIAN: Pension: Trust: Limitations. A soldier in tlie Civil War was killed in 1863. He left a widow and three daughters of tender years. In 1865, his widow married his brother and they had five children. The II. S. government gave the three daughters a pension and their step-father, who became their guardian, drew what was in arrear and. afterwards, quarterly. He invested it in part payment of a farm where he raised his step-children and his own and lived over forty years. On final settlement, as guardian, there was a balance due each and they each being of age, acknowledged satisfaction, but really received nothing. It was 7idlcl that a trust relationship existed whereby each of the three wards had a claim on the land for so much of their money as was used in purchasing it. It was further held that -on final settlement the balance due the wards, though receipted, was a debt payable to each ward and that the Statute of Limitations begun to run in favor of the guardian from the day of the settlement. It was further held, that even though there was a trust in their favor against the land after the settlement and balances found, yet it was a resulting or implied trust, against which the Statute of Limitations, ran frpm t,hp day it was ascertained.</p> <p>2. -: Statute of Limitations: Final Settlement. Tbe Statute of Limitations will begin to run in favor of a guardian from the day of his final settlement after his wards became of age.</p> <p>S. TRUSTS: Implied: Resulting: Express: Limitations. The Statute of Limitations runs against implied and resulting trusts, but not against an express trust which, if in land, must be evidenced by writing.</p> <p>4. -: Express Trust: Personalty: Sale of Land: Writing. While an express trust in personalty may be created by parol, yet if the trust- is sought to be enforced against money because realized on a sale of land against which the trust is charged to have existed, it must be evidenced by a writing.</p> <p>5. -: Constructive Trust: Limitations. A trust does not arise out of a mere contract of indebtedness between debtor and creditor. And if the breach of such contract is such that a trust may arise, it is a constructive trust against which limitations will run.</p>

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

<p>1. EQUITY: Accounting: Testamentary Trusts: Wilis: Failure to Expressly Dispose of Property: Power of Trustees. A testator, leaving a widow and three children, devised his property to trustees for ten years, during which time the trustees were to have the widest powers over the property, using tE6 income thereof for a full and liberal provision for the benefit of the wife and children according to the best judgment of the trustees and with no limit to be placed thereon exe.ept' their .good judg* ment and the manner theretofore adopted by testator during his lifetime. At the end of the ten years, the will said the trust was to cease, but made no express disposition of the property at that time. The trustees took the property and managed it, but, in good faith and according to their best judgment, paid more than one-fourth of the income to the widow. In a suit brought by the children to construe the will, the validity of the trust was decreed and the trustees found to be vested with the legal title for a period of ten years. After the payments to the widow were made, all parties interested in the property were made parties to a suit to terminate the trust. The trustees’ accounts were approved and each heir receipted for an undivided one-fourth of the property then in the trustees’ hands, for distribution, said receipt being in full for their respective shares. After the death of the widow, two of the ehidlren brought this suit in equity to recover their proportion of the excess above one-fourth of the income paid by the trustees to the mother during the continuance of the trust. Held, that they could not recover; that the interests of the children are not the same as if the testator left no will; that the will created a trust for ten years with direction in the trustees to pay the income as their best judgment directed; that the respective interests of the widow and children in the estate were subject to the trust and to the powers vested in the trustees as disclosed by a correct interpretation of the will; that the will placed the legal title in the trustees for ten years and the equitable title in, the children during that time, and that the will, in saying that the trust was then to cease, meant that.-i7i ere the complete title was to unite in the widow and children. So that the beneficiaries did not take under the law, immediately upon the death of testator, a fixed and definite interest in testator’s property so as to 'forbid the trustee from paying to the widow more of the income, if needed in their judgment, than one-fourth thereof.</p> <p>2. —.—■—: -- — : -. A court of equity will endeavor to sustain a testamentary trust and carry out the testator’s intention unless forbidden by some positive rule of law. It will sometimes even supply deficiencies in the trust instrument.</p> <p>3. ———: -: -: -: —-: -: Judgments: Res Adjudicata. Whether the foregoing conclusions be in all respects sound or not, the validity of the trust was set at rest by the suit to construe the will, and the correctness of the trustees’ acts became res adjudicata by the decree in the suit to terminate the trust and distribute the property.</p> <p>4. -: -: —■——: Active Trusts: Merger. There was no merger of estates in the beneficiaries until after the trust ceased. A merger does not take place until the legal and equitable titles vest in the same person. And even then a merger will often not be recognized in equity when otherwise it might be in law. And especially is this true where the intention of the creator of the two estates is that there shall be no merger.</p>

<p>1. JURISDICTION: Right to Sue Foreign Executor: Texas Statute: Administration in Texas Independent of Probate Court. Under a Texas statute giving a testator power to provide that his executrix may settle his estate independent of the probate court, a testator in Texas gave his executrix that power, so that, under the law as construed by the Texas courts, the executrix could be sued in any court ot competent jurisdiction. Such executrix thereafter took charge of cattle in Texas belonging to the estate and in due course of business shipped them to Missouri for sale on the market by a mortgagee who was to pay off the mortgage and remit the balance of the proceeds to the executrix. The cattle were sold on the market in Missouri and the mortgage paid off, but a creditor sued the executrix by attachment in Missouri and garnisheed the balance of the proceeds left after payment of the mortgage. Held, that the suit was properly dismissed by the trial court.</p> <p>2. -: -: -: -: Appointment of Ancillary Administrator. The title to the. property being in the Texas executrix before it came into this State, and it being brought here for lawful purposes, in keeping with executrix’s duty under the law in Texas, and not wrongfully brought here to be converted to executrix’s own use, there was no vacancy in the title to the property which would authorize the appointment of an administrator in Missouri, and hence no authority in the court to order the property turned over to an administrator appointed in Missouri.</p> <p>'3. -: -: —i-: -: It does not follow that because, under Texas law, a suit could be brought in that State against the executrix in any court of competent jurisdiction, this authorizes a court in Missouri, and proceeding under Missouri law, to maintain a suit against the executrix. So far as Missouri law is concerned, it does not recognize or give validity to the appointment of an executor in a foreign State. His powers stop at the boundaries of the State in which he is appointed. He cannot, in his official capacity, originate or maintain in the courts of any country, save that which granted him letters testamentary or of administration, without authority from the country in which he brings the action. The strict correlative of this proposition is that no executor or administrator can be subjected to an action, in his official capacity, in the State or county in which he is not recognized as such.</p> <p>4. -: -: -: -: To say that when an executrix has shipped property of the estate to another jurisdiction for sale on the market a creditor in the latter jurisdiction can either attach it or have an ancillary administrator appointed and the property taken away from the first administrative officer to satisfy that creditor’s demand, when there is nothing to prevent the creditor from enforcing his claim in the State where the property and the demand originated, is to open the door to much confusion and to disregard the territorial limitations heretofore recognized as existing, upon the powers and liabilities of executors and administrators. The results likely to follow are much too high a price to pay merely to accommodate the convenience of a creditor who prefers to sue in his home forum.</p> <p>5. -: -: Property under administration: Attachment. By the clear intent of our law attachment is not available against property belonging to an estate in process of administration.</p> <p>6. -: Want of for lack of Summons: Motion to Dismiss: Special Appearance Becomes General when Motion not Confined to Absence of Service. Waiver. Where the objection to jurisdiction raised by a motion to dismiss is not the lack of jurisdiction under the law, but because of the absence of summons, such motion, if not confined to that objection but extends to other matters and attacks plaintiff’s right to prevail because of them, is a waiver of the lack of sum-i mons, and constitutes an entry of general appearance even though the motion says the appearance is special only.</p> <p>7. -: -: -: -: —.-. Whenever a litigant appears to deny jurisdiction over his person, which would otherwise exist but for tbe failure to pursue the methods prescribed by law for bringing him into court, he must confine himself to that particular branch of jurisdiction.</p> <p>S. -: -: -: -: -. The rule that a defendant can unite in the same pleading a plea to the jurisdiction, as to the person as well as to the subject-matter, with a plea to the merits, and that he does not thereby waive the question of jurisdiction, has reference to where the objection to the jurisdiction is that there is none under the law and not to the want of jurisdiction because of the mere insufficient service of a summons in a case in which the court had jurisdiction upon a proper service of the writ.</p>

<p>Appeal from Chariton Circuit Court. — Hon. Fred Lamb, Judge.</p>

<p>Appeal from Jackson Circuit' Court. — Eon. Kimbrough Stone, Judge.</p>

<p>Appeal from Livingston Circuit Court.— Hon. Arch B. Davis, Judge.</p>

<p>1. HOMESTEAD: Execution: Widow: Deed of Trust: Sale. A husband joined by his wife, to secure a note, gave a deed of trust on his land which was exempt under the homestead statute from execution. He and she also jointly owed another note. He died leaving the wife as his widow and several minor children. The creditor on the latter note obtained judgment thereon against the widow. Afterwards the deed of trust was foreclosed by a sale at which the widow bought it and received and recorded a trustee’s deed to the land. The judgment creditor then had an execution issued against her and directed the sheriff to levy on the homestead thus conveyed by the deed of trust. The sheriff made return that he did not levy but set off the land to the widow and children as their homestead. The plaintiff in the execution moved to quash the return which the court overruled. It was held not to be error.</p> <p>2. Tenant In Common: Deed of Trust: Purchase. One tenant in common may buy the whole title for himself free from claim of others at a sale under a deed of trust, which was fairly and properly made and not suggested by him.</p> <p>3. -: Purchase by One: Guardian: Trustees. Where a widow and minor children are tenants in common of a homestead, and a sale of such homestead is made under a deed of trust given by the father in his lifetime, the widow will be looked upon as a guardian and trustee for the children and at a sale under the deed of trust she cannot buy the whole title for herself and deprive the children of their homestead. And she will hold the land as trustee for the children.</p> <p>.4. HOMESTEAD: Trustee’s Sale: Purchase by Widow. Where a widow and minor children take a homestead in her deceased husband’s land and then, afterwards, she purchases such land at a sale under a deed of trust given by the husband, her purchase will be held to be in protection of the homestead for herself and children, and is no more than a payment of the debt secured by the deed of trust. She has not, by such purchase, acquired an estate subsequent to a prior indebtedness which may b'e taken in execution for such indebtedness.</p> <p>5. -. Estate in Fee: Executions. The estate in fee of land occupied by the widow and children as a homestead cannot be taken in execution and sold, or subject the homestead, as long as the homestead right exists in any one of those entitled to it. The homestead estate is an entirety and as each claimant may become disentitled to it, those remaining take all of it.</p>

— Hon. James A. Finch, Judge. (1) The transaction between plaintiff and defendant constituted a sale by plaintiff to the defendant of sixteen wagons at the price of $55 each and five wagon boxes at the price of $12 each, and none of the conditions expressed upon said contract in any manner or degree deprived the transaction of any of the attributes of a sale of personal property, binding upon both of the parties thereto. Tufts v. Wynne, 45 Mo.

— Hon. Charles B. Faris, Judge. (1) Whatever jurisdiction the justice of the peace of La Font township had in this cause is derived from section 7399, R. S. 1909, and unless the fact's of jurisdiction do appear in this record the lack of jurisdiction is inherent. Sec. 7399, R. S. 1909; Grant v. Stubble-field, 138 Mo. App. 555; Barnes v. Plessner, 121 Mo. App. 677. (2) The plaintiff must show that the justice of the peace had jurisdiction of the subject-matter.

— Hon. Frank Kelley, Judge.. (1) The trial court sustained demurrer to the evidence of the plaintiff. It seemed to he the opinion of the trial court that, inasmuch as there was no direct proof showing that defendants, or either of them, procured the arrest of plaintiff, or had the criminal prosecution instituted, plaintiff failed to make a case.

— Hon. Charles B. Baris, Judge. (1) Congress, by the enactment of the Interstate Commerce Act, and the amendments thereto, has taken complete possession of the subject of liability of carriers by - railroad on account of interstate shipments; and all State regulations, provisions and policies with respect to that subject are- thereby superseded and invalidated. Act Peb. 4, 1887; 24 Stat. at Large, 379: Act June 29, 1906; 34 Stat. at Large, 584; Adams Exp.

Louis City Circuit Court. — Eon. Eugene McQuillin, Judge. (1) The petition contains neither' colloquium nor innuendo by which the language charged to be slanderous is explained and shown to charge the plaintiff with the commission of a crime. The petition is therefore insufficient to sustain the verdict and judgment.

— Eon. James D. Barnett, Judge. (1) The written offer of judgment, signed by tbe Chicago, Burlington & Quincy Railroad Company, by' its attorneys of record, was in due form and was a compliance with the requirements of section 1965, R. S. 1909.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) The value of the chattels in question was wrongfully assessed as of the time of caption.

Louis City Circuit Court. — Eon. Thomas C. Hennings, Judge. (1) Unconditional negotiations for payment of premium after the time is past due, the request of payment of the same, negotiations as to how to meet same so as to avoid a forfeiture for the non-payment of premium, is evidence that the insurer has waived the right to consider the policy of insurance as forfeited and lapsed, and to the contrary is continuing the same in force. 2 Beach, Ins. 753; Equitable Life…

Louis City Circuit Court. — How. William T. Jones, Judge. (1) Plaintiff having’, elected to base its right of recovery on express contract, was bound to have pleaded the contracts relied on and any modifications the same, and could not recover in quantum meruit. Koons v. St. Louis Car Co., 20-3 Mo. 227; Harrington v. Brockman Commission Co., 107 Mo. App. 418; Stanley v. Whitlow, 181 Mo. App. 461.

A.ppeal from St. Louis City Circuit Court. — No». George G. Hitchcock, Judge. (1) Defendant’s instruction in the nature of a demurrer to the evidence should have been given by the court. Bassford v. West, 124 Mo. App. 248; Hughes et al. v. Dodd, 164 Mo. App. 460; Graf & Case R. E. Company v. Lovell, 163 S. W. 878; Loving Company v. Cattle Company, 176 Mo. 336; Jennings v. Overholt, 186 Mo. App. 505; Burdett v. Parish, 185 Mo.

Louis City Circuit Court. — Ron. James E. Withrow, Judge. There was no evidence 'that at the time of the collision the defendant Kenzell was engaged in the performanee of any duties as an employee of the Telegraph Company, or that the alleged negligence was in respect to any act or deed on his part required by or incident to his employment, if any. Hillsdorf v. City, 45 Mo 94; Walker v. Railroad, 121 Mo. 575.; Farber v. Railroad, 32 Mo.

Louis Circuit Court. — Hon. Leo 8. Rassieur, Judge. ‘ (1) The inquiry in this case is as to the validity or invalidity of a clause in Rule 63 of the Burlington Railroad Company Relief Department which undertakes to forfeit the rights and benefits of the beneficiary of a Relief Certificate upon the bringing of a suit for damages for death of the member of said department on whom said certificate is issued.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) If a defendant is not personally served and does not enter a voluntary appearance, a personal judgment cannot be rendered.

<p>1. TRIAL PRACTICE: Demurrer to Evidence: Rule of Decision. In passing upon defendant’s demurrer to the evidence, plaintiff's evidence must be viewed in tbe light most favorable to him.</p> <p>2. NEGLIGENCE: Ordinary Care: Unusual Conditions. Unusual conditions, of which one is fully aware, increasing the danger attendant upon his movements, merely serve to demand extra precautions on his part in order that he may be said to be in the exercise of ordinary care, such as the law expects and requires of him.</p> <p>3. AUTOMOBILES: Duty of Driver: Unusual Conditions. If mist or fog render the'headlights of an automobile which is being driven at night less than ordinarily effective, and the streets are wet and slippery, it is the duty of the driver of the automobile to exercise extra precautions to avoid striking an object in the street.</p> <p>4. -: Damage to Automobile: Obstruction in Street: Contributory Negligence. Where plaintiff drove his automobile at such a rate of speed on a misty night and over a wet and slippery street that he could not stop it after seeing an obstruction near the curb, three feet high, he was guilty of contributory negligence as a matter of law, barring a recovery for damages to the automobile, resulting from a collision with the obstruction.</p> <p>5. -: -: -: -. In such a case, if plaintiff, with the aid of his headlights, could readily have seen the obstruction at a sufficient distance to enable him to avoid striking it, but was not looking forward and exercising ordinary care to watch .out for objects ahead of him, he was guilty of contributory negligence as a matter of law, barring a recovery.</p>

<p>1. LIFE INSURANCE: Misrepresentations: Statute, tinder Sec. 6937, B. S. 1909, providing that no misrepresentation made in obtaining a life insurance policy shall be deemed material or render ■ the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable and that whether it so contributed in any case shall he a question for the jury, the question of whether the matter alleged to have been misrepresented “actually contributed to the contingency or event on which the policy is to become due and payable” is one for the jury.</p> <p>2. -: -:-. Said statute applies alike to warranties ■and representations and draws no distinction between innocent and fraudulent misrepresentations.</p> <p>3. -: Evidence: Conclusiveness of Proofs of Death. Statements contained in the proofs of death made by the beneficiary of a life insurance policy, in accordance with the provisions of the policy, while admissible in evidence against him, in an action on the policy, are but prima facie binding as admissions against interest, and may be overcome by proof tending to explain or relieve against them.</p> <p>4. -: -:-. In an action on a life insurance policy, signed statements attached to the proofs of death, made by physicians who attended insured, stating that he died from tuberculosis, and that he was afflicted with that disease at the time he signed a written application for the insurance, in which he represented that he was not so afflicted, did not conclusively establish that he had misrepresented a matter that contributed to his death, so as to warrant the court in holding the policy void as a matter of law, where the beneficiary stated in the proofs that insured died from another malady, with which he was not afflicted at the time he made such application; the recitals in the physicians’ statements having been contradicted by the beneficiary’s statements, were not conclusive, but the question was for the jury, pursuant to Sec. 6937, R. S. 1909 (Stephens v. Insurance Company, 190 Mo. App. 673, distinguished).</p> <p>5. -: -: -. Even though the proofs of death had contained nothing to contradict the recitals in the physicians’ statements, nevertheless such recitals would not be conclusive, in view of the fact that they were repelled by the certificate of insurer’s medical examiner, and the further fact that the beneficiary and others who had associated daily with insured gave testimony tending to show that he was not suffering from tuberculosis at the time he made application for the insurance.</p> <p>6. --: Evidence: Condition of Health: Nonexpert Witnesses. In an action on a life insurance policy, where the state of health of insured at the time he applied for the insurance is in issue, testimony of persons who associated daily with insured, as to the state of his health, may not be cast aside as wholly devoid of probative force and evidentiary value.</p> <p>7. -: -: -: Admissions by Insured. In an action on a life insurance policy, defended on the theory that the policy was void because insured falsely represented in his application for the insurance that he was not afflicted with the disease that subsequently caused his death, a statement made by insured several months prior to the making of such application, in an effort to obtain sick benefits under a policy issued by another company, that he was suffering from such disease, was not a conclusive admission, operating to establish such defense as a matter of law, where the certificate of insurer’s medical examiner and the testimony of persons who had associated daily with insured tend 3d to show that he was net suffering from such disease at the time he made application for the life insurance.</p>

<p>1. APPEALS: Supersedeas: Operative on Non-monetary Judgment: Judgment Awarding Custody of Child. The phrase “stay of execution” in Sec. 2042, R. S. 1909, providing that the allowance of an appeal shall stay the execution, where the appellant enters into a recognizance in a penalty double the amount recovered, etc., is not confined to the stay of an execution in a technical sense, but operates wherever the judgment is of such character as to' require something to be done to execute it, and includes the stay or suspension of all appropriate process or proceedings to enforce, or compel the performance of, a judgment that affirmatively commands something to he done; and hence an appeal from a judgment awarding the custody of a minor child and the giving of an appeal bond in the amount fixed by the court operate as a supersedeas, since the judgment is of such character as to require something to be done to execute it.</p> <p>2. -: -: Not Operative on Self-Enforcing Judgments. Sec. 2042, R. S. 1909, providing for supersedeas upon an appeal being taken and a bond being given, does not apply to judgments that are self-enforcing, or, at any rate, are of such character as to require the aid of no writ, process or proceeding to make them operative or effective, as, e. g., a judgment suspending an attorney from the practice of his profession; or one revoking a saloon licence, or one granting an injunction that restrains action.</p> <p>3. PROHIBITION: Prohibiting Execution of «Superseded Judgment. A circuit court which undertakes to execute or enforce a judgment notwithstanding the judgment has been superseded by the taking of &. appeal and the giving of a bond, pursuant to Sed. 2042, R. S. 1909, will be prohibited from taking such action.</p>

Louis City Circuit Court.- — Hon. J. Hugo Grimm, Judge. An action of trover will not lie for money on deposit in bank. A depositor is not the owner of any specific money in the bank; he is simply a creditor of the bank. Money cannot be converted unless it is set apart in kind, such as money in boxes,-etc., so that the rights of the owner can attach specifically to the article.- Petit v. Bouju, 1 Mo. 64; Summers v. Spencer, 9 Fed. Rep. 581; Kerwin v. Balhatchett, 147 111.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. „ It is settled by an unbroken line of authorities, of the highest character, that where a contractor has completed the building (as in this case), and turned the same over to the owner, who accepted the same as completed, and thereafter a third party is injured in an accident resulting from defects in materials which were used in the construction of the building, the injured party cannot maintain an action against…

<p>1. APPELLATE PRACTICE: Appeal in Divorce Case: Form of Affidavit for Appeal. On an appeal by defendant from a decree dismissing her cross-bill and granting plaintiff a divorce, it is not a prerequisite to a review of the entire case that the affidavit for appeal be prepared as though two cases were appealed, but an affidavit in conventional form is sufficient.</p> <p>2. --: Divorce: Conclusiveness of Findings. While, in divorce cases, as in all actions that partake of the nature of suits in equity, the appellate court pays great deference to the conclusion of the trial court on conflicting evidence, it nevertheless reviews the evidence and determines the case on its own conclusions thereon; such' a case addressing itself to the conscience of the court, and this applying to the appellate, as well as the trial, court.</p> <p>3. DIVORCE: Indignities. It is impossible to lay down any rules that will apply to all cases, in determining what indignities are grounds- of divorce because they render the condition of the injured party intolerable. The Legislature chose to leave the subject at large, and by the general words employed, evidently designed to leave each case to be determined according to its own peculiar circumstances.</p> <p>4. _; _; For an indignity to be intolerable, in the statutory sense, as ground for divorce, it must amount to a species of mental cruelty.</p> <p>5. -: Uncorroborated Evidence. Divorce is rarely granted on the uncorroborated evidence of a party.</p> <p>6. -: Indignities: Sufficiency of Evidence. On appeal from a decree dismissing the wife’s crose-bill charging indignities and granting the husband a divorce on the ground of indignities, held, under the evidence, that the husband’s petition should have been dismissed and the wife granted a divorce on her cross-bill.</p> <p>7. APPELLATE PRACTICE: Divorce: Alimony: Disposal of Case on Appeal. The appellate court, on remanding a divorce case to the circuit court with directions to grant the wife a divorce, may order that she be allowed alimony in a certain amount.</p>

Louis City Circuit Court. — How. J. Hugo Grimm, Judge. Tlxe court erred in not sustaining the objections to the admission-in evidence of the transcript of the judgment sued upon, upon the ground that the judgment and all of the proceedings in the transcript was against certain defendants sued as a partnership under the firm name of Fisher & Davis, the names of the persons doing business as Fisher & Davis nowhere appearing in the transcript.

Louis City Circuit Court. — Mon. Daniel D. Fisher, Judge. (1) A check is a draft or order upon a bank 'or banking house,, purporting to be drawn upon a deposit of funds for the payment at all events of a certain sum of money to a certain person therein named, or to his order, or to bearer, and payable instantly on demand. 2 Daniels on Neg. Instruments; sec. 1566; R. S. 1909, sec. 10155; Bank v. Bank, 148 Mo. App. 1; Glenn v. Trust & Savings Dep.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) A corporation may ratify a contract made by its corporators either (a) by its acts of accepting the benefits and tacit acquiesenee in the payment made therefor, or any act by which ratification may be implied, or (b) by direct approval by its board of directors of such payment for services rendered for the benefit of the corporation, either by formal or informal action.

Louis City Circuit Court. — Eon. James E. Withrow, Judge. (1) The coupons sued on are negotiable instruments under the law merchant and statute. Daniel’s Negotiable Instruments (6 Ed.), sec. 1487; Ogden’s Negotiable Instruments, p. 193;. 10 Cyclopedia of Law and Procedure pp. 1173-1174-1175;' Jones on Corporate Bonds, sec. 238.; Kenosha v. Lamson, 76 U. S. (9 Wall.) 477; Conn. M. L. Assn.

Louis City Circuit Court. — Hon. Rhodes E. Gave, Judge. (1) The defendant George ~W. Strodtman, being an agent of the law, was not subject to the ordinary process of garnishment prior to an order of distribution. 14 Amer. & Eng.

Louis City Circuit Court. — How. Leo 8. Rassieur, Judge. (1) A railroad company transporting its own property is not a common carrier and is not subject to the Interstate Commerce Act with respect to such transportation regulating rates. Railroad v. Grant Bros., 228 U. S. 177; The Pipe Line cases, 234 U. S. 548, 562. (2) It is the essential character of the commerce, not the accident of through or local bills of lading, which determines Federal or State control.

Louis City Circuit Court. — Now. Leo-8. Rassieur, Judge.- (1) The judgment in the divorce suit of Blass, v. Blass is null and void and of no effect for the reasons: (a) That plaintiff, Barney Blass, was not and had not been at the date of signing and making affidavit to the petition, and at the date of the filing thereof, a resident of the State of Missouri for one whole year next prior thereto, within the meaning of the law, and the court therefore had no jurisdiction of…

Louis City Circuit Court — Hon. Wilson A. Taylor, Judge. (1) Plaintiff’s instruction No. 2; on the measure of damages, is erroneous because it permits a recovery for past “lost time,” without any suitable allegation in the petition, and without any evidence of loss of time or of the value thereof. Slaughter v. Eailroad, 116 Mo. 269; Mellor v. Eailroad, 105 Mo. 455; Coontz v. Eailroad, 115 Mo. 569; Bartley v. Trorlicht, 49 Mo. App. 214; Impkamp v. Transit Co., 108 Mo.

<p>1. NEGLIGENCE: Railroads: Track Repair. This is an action for personal injuries founded on the Federal Employers’ Liability Act. The plaintiff, while repairing a switch track, stepped out of the way of an approaching switch engine and drag, and a box car on an adjacent track struck him on the shoulder, knocking him down and running over his arm. Held, that the injury was a natural result of the negligence and one that the engineer must be presumed to have anticipated as a natural and probable consequence. The relative narrowness of the space between the tracks, the imperative necessity of attracting the engineer’s attention which caused plaintiff to move to the best vantage point, and the practice in the yards of running detached cars on the east track without an attendant to give warning, were facts from which the inference of danger to the plaintiff from the probable cooperation of the active ingredients of such situation would and should have been drawn by a reasonably careful person in the position of the engineer.</p> <p>2. -: -:--: Where an injury cannot reasonably be anticipated and would not have happened unless under exceptional circumstances, it is not negligence to fail to take precautionary measures to prevent it, although if taken, the injury would not have resulted.</p> <p>3. -: ■:-: -. An engineer of a passing locomotive is entitled to indulge in the presumption of a clear track as to all employees, such as section hands, and track repairers, who are required by the rules of the company to keep out of the way of trains and is not required to be on the lookout for' them.</p>

<p>Appeal from Jackson Circuit Court. — lion. Kimbrough Stone, Judge.</p>

<p>This is a suit on a special tax bill issued-by the city of St. Joseph for paving Penn street between Sixteenth and Twenty-Sixth streets. . The proceedings for the paving of Penn street were regular up to the receiving of the bids on October 25, 1912. The ordinance passed by the city council contained a provision for the completion of the work 120 days after the awarding of the contract. One bid was received but the contract was not awarded until seven months had elapsed. Held, that the trial judge erred in not rendering judgment for the defendant, for the reasons that such delay in awarding the contract would be destructive of real competitive bidding and open the door to fraud and favoritism.</p>

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

<p>1. LOST INSTRUMENT: Admissibility of Secondary Evidence. In an action on the bond of a city contractor, proof of loss was made by testimony of the city clerk that a- search of the records in his office did not show the bond. The mayor who had approved the bond" and whose term had expired before trial also testified to searching for the bond in the office of the clerk, and to seeking it in the offices of the attorneys for the contractor, and of one who made loans to the contractor. The agent of the surety, the loss having been discovered long before suit, had informed the munic- . ipality that he had no copy of the bond, but stated that the' bond was of the ordinary form guaranteeing the payment of labor and material for the public work. Held that, though the one who was the incumbent when the bond was approved was not called, and though the clerk who testified admitted that he did not look in a vault where old records were kept proof of the loss of the bond, there being no suspicious circumstances against the municipality or materialmen, was such that the discretion of the trial court in receiving secondary evidence cannot be disturbed; the surety, notwithstanding the admission of its agent, claiming on trial that the bond did not cover payment of labor and material.</p> <p>2. DEGREE OF SEARCH AND STRICTNESS OF PROOF REQUIRED: Discretion of Trial Judge. Where a cause of action is predicated upon the contents of an alleged lost instrument, greater diligence in search and more strictness in proof is required than where the lost instrument is merely collateral to the main issue of the case. Whether the proof of the loss of an instrument is sufficient to warrant the admission of secondary evidence is a matter for the discretion of the trial judge, and his determination, unless abused, will not be disturbed. Secondary evidence of a document of a public nature, for which a particular place of deposit is provided, may be received, where an unsuccessful search in such place is shown. The degree of diligence to be shown to warrant the admission of secondary evidence cannot be determined by any inflexible rule; less diligence being required where there are no 4 circumstances of suspicion against the parties seeking to introduce secondary evidence, and where such parties did not have possession of the instrument.</p> <p>3. MUNICIPAL CORPORATIONS: Contracts: Bonds: Evidence: Admissibility. In an action on the lost bond of a municipal contractor, evidence that it was given under an ordinance requiring the bond to cover payment of labor and materials is admissible to show that the bond included such claims; for it will be presumed that the parties gave such bond as was required.</p> <p>4. -: Instructions. In an action on the lost bond of a municipal contractor, where the surety’s general agent had written a letter stating that it covered payment for labor and material, an instruction that the letter did not bind the company so as to render it liable for payment of labor and material is misleading as to the effect to be given the admission by the agent.</p>

<p>1. PLEDGES: Implied Contract. To constitute a pledge, there must he a contract to that effect; but it is not essential that such a contract shall be an express one. It may be implied and where the maker of an individual note, who had given collateral security, stated, when pressed to pay the note of a corporation which he had endorsed, that he thought the collateral applied to the corporate obligation, and the bank ceased to press for payment of the corporate note, there is an implied pledge of the collateral to secure the corporate note.</p> <p>2. --: -: Construction as to Extent: Evidence. Where, as regards the extent of a pledge, two constructions are equally available, that one ought not to be adopted which is most favorable to the pledgee. Evidence reviewed and held insufficient to show that the contract of pledge extended beyond the individual note of the debtor and the corporate note on which he was endorser.</p> <p>3. WITNESSES: Competency: Where One of Contracting Parties is Dead. An assistant cashier and stockholder of a bank, who had no authority to negotiate- loans, may, in an action by the bank against the estate of a deceased borrower, testify that he overheard the borrower negotiating with the cashier, and that in such negotiations the borrower agreed to hypothecate corporate stock as security for the loan; for the assistant cashier had nothing to do with the transaction as a contracting agent.</p> <p>4. BILLS AND NOTES: Consideration: Person Primarily Liable. Want of consideration cannot be urged against a note which was a renewal and extension of a former note oh which defendant’s name appeared as comaker.</p> <p>6. APPEAL AND ERROR: Abstracts: Bill of Exceptions. Under rule 26, declaring that no appellant need abstract record entries evidencing his leave to file, or filing of, a bill of exceptions, it being sufficient if his abstract state the bill of exceptions was duly filed, an alleged error in the abstract as to the signing and filing of the bill of exceptions will not, where it was shown to have been duly filed, preclude a consideration thereof.</p>

<p>1. HABEAS CORPUS: Parent and Child: Adoption. The plaintiff instituted this proceeding by habeas corpus, on July 26, 1916, to obtain custody of Waneta Penny, the infant daughter of Florence Clark, one of the plaintiffs. The plaintiffs were married April 25, 1916, but Waneta was born February 19, 1915, in Kansas City at the Florence Crittenton Home, a charitable institution, and is the illegitimate offspring of Florence and one Harvey Heavener. On July 3, 1915, Florence executed and delivered to the Children’s Home Society, an agreement, whereby she purported to deliver to the Society all her right, title and interest in- the child to the society, but the agreement was never filed of record in the Recorder’s office as required by the statute, until the institution of this proceeding. The Society in the interim had placed the child with childless parents, who adopted her. Held, that no right had been acquired by the Society, or by respondents through the society, when the mother withdrew her consent to divest herself of her rights of parentage, and by these proceedings in court asserted her full right, she could not be stripped except in the precise way prescribed in the statute. After the withdrawal of consent the society could not give life to the incomplete and wholly inoperative deed of release by filing it of record, and, thereby divest the mother of her right of custody without her consent.</p> <p>2. -: -: Statute. When section 470, R. S. 1909, requires the contract of the parent to be evidenced in a certain way, that way must be strictly followed and every prescribed step must be treated as pertaining to a right or to the divestiture of a right, rather than as directory for the mere purpose of imparting public notice of the deed.</p>