Volume 196 — Missouri Appeal Reports

— Hon. Edgar B. Woolf oik, Judge. . (1) The evidence conclusively showed that respondent was not in “actual occupation” of any part of the premises, and hence there was no violation of the conditions of the rider. 3 Joyce on Insurance, p. 2213; Craig v. Sp’g. E. & M. Ins. Co., 34 Mo. App. 484.

<p>1. EXECUTORS AND ADMINISTRATORS: Right to Administer: Rights of Surviving Spouse. The surviving spouse is given an unqualified right to administer upon the estate of the deceased spouse, in the first instance, by Sec. 15, R. S. 1909, unless disqualified by Sec. 14, although, under Sec. 50, the letters may be revoked after a hearing, if ground therefore exists.</p> <p>2. -:-: -. In view of the fact that, under section 15, R. S. 1909, a widow who is not disqualified by section 14 has the absolute right to administer upon her deceased husband’s estate, the fact that she was improvident, wasteful and extravagant, had no proper -appreciation of the value of money, was a woman of immoral character, whose reputation for morality was bad, was deficient in integrity and business honor, was incapable of managing the estate advantageously or properly, and was hostile to the heirs and distributees, was not sufficient to defeat her right, in the first instance, to letters of administration; distinguishing State ex rel. v. Reddish, 148 Mo. App. 715. 3. -:-: Renunciation: Antenuptial Contracts. The right to administer upon an estate may be renounced, and such renouncement may be effected by an antenuptial contract executed in consideration of marriage.</p> <p>4. MANDAMUS: Executors and Administrators: Renunciation of Right to Administer: Discretionary Determination. The probate court acts judicially in determining whether or not the right to administer upon an estate has been renounced by one of those entitled to priority, and, in the absence of an abuse of discretion, its action may not be reviewed or interfered with by mandamus; but the probate court is not permitted to act arbitrarily or abuse such discretion, and it cannot conclude the matter by a finding which is wholly unsupported by the evidence.</p> <p>' 5. -: -: -: -. Where, in such, a case, the return to an alternative writ of mandamus shows that the respondent judge found that the right to administer had been waived or renounced, and also sets forth all the facts concerning that matter, so that it affirmatively appears that the question turns entirely on a conclusion of law, the immunity from review by mandamus, which usually attends the exercise of a judicial function, does not necessarily obtain.</p> <p>6. WAIVER: Elements. Waiver is purely a matter of intention, and such intention may only be found from facts tending to prove it.</p> <p>7. EXECUTORS AND ADMINISTRATORS: Right to Administer: Renunciation of Waiver: Antenuptial Contracts. A marriage contract between decedent and his widow, which awarded her five thousand dollars at the time of the marriage, and two thousand dollars per year so long as she continued his wife, and thereafter ‘'barred her from his property,” did not constitute a renunciation or waiver of the widow’s right to administer upon decedent’s estate, since the intention to renounce, which is essential to constitute a waiver, was lacking, and there was no renunciation, as tbo statutory right of a widow to administer upon her deceased husband’s estate is not essentially a marital right fn his property, but is rather the right to perform an office, through which, after paying the debts and other charges, the estate, less commissions, is eventually turned over to the distributees.</p>

<p>1. CORPORATIONS: Officers: Payment of Private Debt -with Corporate Funds: Liability of Recipient. Where a check of a corporation, drawn by an officer thereof, is by him tendered to his creditor in payment of his individual debt, the fact that the instrument upon its face purports to be drawn upon corporate funds under the officer’s control is sufficient to put the creditor upon inquiry, and. if such a check is accepted and used by the creditor, he runs the risk of being required to restore to the corporation the proceeds thereof; but this doctrine finds application only where the cheek is drawn upon funds actually- belonging to the corporation and which the officer could not rightfully draw upon, whereby such funds are misappropriated.</p> <p>2. APPELLATE PRACTICE: Conclusiveness of Finding. A finding by the trial court, sitting as a jury, upon any controverted question of fact is conclusive upon the appellate court, if supported by any substantial evidence.</p> <p>3. -: -. While it is not the province of the appellate court to pass upon the credibility of witnesses or the weight to be given their testimony, nevertheless where testimony cannot possibly be true, a finding by the trial court, predicated thereon, is not binding upon the appellate court.</p> <p>4. -: -. In an.action for money had and received, brought by the receiver of an insurance company which had never become fully organized nor obtained authority to transact business conformably to the insurance statute, a finding by the trial court that a loan obtained by the promoter of the company was made to the company, predicated upon evidence to that effect, was not binding upon the appellate court, for the reason that, such company never having become fully organized nor authorized to transact business, the evidence upon which the finding was based could not possibly be true.</p> <p>5. CORPORATIONS: Promoters: Right to Act for Corporation Not In Esse. A promoter of a corporation may not act as agent for it before it has corporate existence, since one cannot be the agent of a principal not in esse.</p> <p>6. INSURANCE: Insurance Companies: Organization: Existence: Statute. Under Sec. 6900, R. S. 1909, providing that, whenever the corporators of an insurance company shall have filed with the superintendent of the insurance department the declaration of intention' to form a corporation required by Sec. 6898, together with the proof of publication required by that section, such superintendent shall submit the declaration to the Attorney General, who, if he finds it in accordance with the law, shall so certify to the superintendent, who shall record the. papers with the certificate, furnish a certified copy thereof to the corporators, and file a certified copy with the Secretary of State, who, on payment of the tax required by Sec. 2976, shall issue a certificate of incorporation authorizing the company to open books for subscriptions to its capital stock, and further providing that it shall be unlawful for the company to transact any business until it has fully complied with the article and Secs. 6901, 6902, providing for the steps to be taken, after the capital stock has been subscribed, to procure authority to transact business, the issuance to the corporators of the certificate of incorporation does not give existence to the corporation, but it remains in útero until the capital stock is fully subscribed and authority to transact business-is obtained in the manner provided by the statute: the “certificate of incorporation” merely having the effect of granting to the “corporators” the power to open books of subscription and take subscriptions to the capital stock of the proposed corporation.</p> <p>7. CORPORATIONS: Insurance Companies: Payment of Promoter’s. Debt with Supposed Funds of Corporation: Corporation not In Esse: Liability of Recipient. The promoter of an insurance company deposited in a bank, in the name of the proposed corporation, funds individually procured by him by means of a loan. A certificate of incorporation was issued to the proposed company, pursuant to Sec. 6900, R. S. 19.09, but the capital stock was not fully secured nor authority to transact business obtained, in the manner provided by. Secs. 6901, 6902. The promoter paid his individual debt by means oí a cheek drawn upon these funds, and the receiver of the company brought suit against the recipient of the check, on the theory that it was liable by reason of having accepted and used a check drawn upon corporate funds, in payment of the promoter’s individual debt. Held, that the fact that the funds upon which check was drawn were held in the name of a company proposed to be incorporated and of which the promoter styled himself secretary, did not have the effect of constituting the funds .corporate funds, and, by reason of the fact that the proposed corporation had never been authorized to transact business as an insurance company, it had no legal existence, and could not ratify or adopt the transaction so as to affect the character of the funds or become liable for the repayment of the loan by which they were obtained, and hence the receiver was 'not entitled to recover.</p> <p>8. -: Promoters: Fiduciary Relations. The promoters of a corporation stand in a fiduciary relation to it, but it does not follow that all moneys belonging to or procured by a promoter which may be handled or dealt with by him during the promotion' are impressed with a trust in favor of the corporation.</p>

<p>1. E3?EOUTIONS: Proceeding to Set Aside, Stay or Quash: Character of Proceeding. A proceeding under Sec. 2244, R. S. 1909, providing for proceedings to set aside, stay or quash an execution, is not equitable in its nature,- but is purely legal.</p> <p>I --: -: When Bond Necessary. Sec. 2245, R S. 1909, requiring a bond for a stay of execution, on motion to quash, applies only to a motion filed before a judge in vacation, and not to such a motion filed, heard and disposed of in open court.</p> <p>3. .-: Payment of Judgment Debt: Effect. A judgment creditor cannot successfully sue out an execution after receiving payment of his debt.</p> <p>4. SUBROGATION: Executions: Rights of Surety on Appeal Bond. The surety on an appeal bond, who, upon affirmance of a judgment by the Court of Appeals, paid the judgment, taking an assignment thereof from the judgment creditor, was not entitled to an execution against the surety on the bond given by appellant upon appealing the case from a justice’s court to the circuit court, since, in paying the judgment, the surety was merely discharging its own obligation, and the judgment creditor, having received payment of his debt, could not have successfully sued out execution on the judgment, and, for the same'reason, it was beyond his power to authorize any one else to do so in his name.</p>

<p>1. GUARANTY: Building Contracts: Construction of Guaranty: Matters Covered. A guarantor of the performance of a building contract by the contractor is bound by the specifications referred to in the building contract, providing, inter alia, that the architect or owner should have the right, by written, order, to order alterations and additions, leaving the price therefor, if not agreed upon, to be fixed by arbitration, notwithstanding the specifications were not mentioned, in the contract of guaranty.</p> <p>2. -: -: Extra Work: Compliance with Contract: Burden of Proof. Plaintiff, a materialman, brought suit to enforce a mechanic’s lien. The owner filed a counterclaim, setting up that it had been compelled to spend a certain sum of money, in excess of the contract price, to finish the work, after the dontraetor had failed to do so, and that plaintiff was liable therefor under a contract by which he guaranteed the performance of the contract by the contractor. The building contract provided that the owner or the architect had the right, by a written order, to order alterations or additions to be made. It appeared that a large amount of extra work, not called for by the contract, was performed by the contractor, and the evidence as to whether or not such extra work was performed under a written order, conformably to the terms of the contract, was conflicting. Before the work was finished, the owner took the further execution and direction of it out of the hands of the contractor,, and placed him on a per diem, basis. Plaintiff contended that he was not liable under his contract of guaranty, for the reason that, in having the extra work performed without a written order and in placing the contractor on a per diem, basis, there was a substantial variation of the contract, to his damage. Held, that, in order to establish its counterclaim, the burden rested upon defendant to prove that the extra work was ordered by a written order.</p> <p>3. -: -: -: -: Sufficiency of Evidence. In such action, evidence held to support a finding that no written orders were given for the extra work as required by the contract, and that the doing of such work without such orders constituted a substantial variation of the contract, and hence plaintiff was not liable under his guaranty.</p> <p>4. -: -: -: -: -. In such action, held that the placing of the contractor on a per diem basis was a substantial variation of the contract, since its effect was to change the contractor from the position of an employer to that of a journeyman, and that the evidence was not sufficient to show that plaintiff had knowledge thereof, and hence it is held that plaintiff was not liable under his guaranty.</p> <p>5. -: -: -: Cases Distinguished. Lackland v. Renshaw et al., 256 Mo. 133, is distinguishable on the grounds, that the surety in that case was a corporation expressly organized to make bonds of suretyship for a consideration and a profit, and that the bond there involved was prepared by the surety company and was, under the general rules applicable in cases of that kind, to be construed most strongly against the drawer, neither of which conditions obtain in the case at bar; and that case, as well as City of Kirkwood ex rel. v. Byrne, 146 Mo. App. 481, is further differentiable on the ground that there, no damage resulted to the surety from the alterations, while here, the alterations were material and were prejudicial to the rights of the guarantor.</p> <p>6. JUDGMENTS: Entry: Sufficiency of Order. Where the report of a referee recommended a finding for plaintiff on his claim, for a certain amount, and against defendant on his counterclaim, and after examining the testimony taken by the referee and hearing arguments on the exceptions filed by defendant, the court handed down a memorandum to the clerk, which merely contained the style and number of the case and the words “Report of referee approved,” the judgment entered, conformably to the recommendation of the referee, could not be said to be the mere act of the clerk, since the order given to the .clerk, ■embodied in the memorandum handed down by the court, was tantamount to the pronouncement of the judgment recommended by the referee and warranted the clerk in entering up the judgment in that form.</p>

Louis City Circuit Court. — Eon. James E. Withrow, Judge. (1) The court erred in overruling the demurrers to the evidence. Plaintiff was ordered to shore the ditch and it is an absurdity to say that the master should have shored so that the plaintiff could do the work of shoring. Henson v. Pack. Co., 113 Mo. App. 621; Miller v. Walsh, 145 Mo. App. 135; Bátty v. Power Co., 79 N. T. App. 47; Coal Co. v. Bruzas, 223 111. 601.

Louis City Circuit Court. — Hon. Rhodes 3. Cave, Judge. (1) The court in giving a peremptory instruction to find for respondent in the sum of $1 committed no error of which respondent may complain, because while the testimony showed that some of the trimming of trees- on respondent’s property was done by linemen on the payroll of the appellant, there was no testimony that such trimming ivas done under the. direction of appellant.

<p>1. BILLS AND NOTES: Defenses: Failure of Consideration: Statute. Under Sec. 9999, R. S. 1909, the absence of consideration for a promissory note is a matter of defense as against any person not a holder-in due course.</p> <p>2. -: Sufficiency of Consideration: Benefit to Third Party. It is not necessary that the consideration for a promissory note pass directly to the maker, but it is sufficient if it passes to a third party.</p> <p>3. ACTION: Equity: Mistake of Fact. Mistakes of fact are not cognizable by a court of law in a purely legal action, equity having exclusive jurisdiction, by an action for reformation.</p> <p>4. BILLS AND NOTES: Defenses: Mistake in Signature. In an action at law upon a promissory note, the fact that the maker, through mistake, signed a note so as to bind himself individually, instead of signing in a representative capacity, so as to bind his principal, is not available as defense; the remedy being in equity.</p> <p>5. -: Varying Terms: Mistake in Signature: Parol Evidence. Parol evidence is not admissible, in an action at law, to vary or change the effect of negotiable instruments; so that, in an action at law on a promissory note, parol evidence that the maker had, through mistake, signed a note so as to bind himself individually, instead of signing in a representative capacity, so as to bind his principal, was inadmissible.</p> <p>6. -: Mistake in Signature: Liability of Maker. Where-promissory notes, given for goods purchased by a corporation, were signed by the corporation by its president, followed by the signature of another person, with no official designation whatever, the latter signer was liable thereon to the payee, under Sec. 9991, R. S. 1909, although she was, in fact, the secretary of the corporation.</p> <p>7. -: -: -. Where promissory notes, given for goods purchased by a corporation, were signed by its president as an individual, and by another with the word “Secy.” affixed to her name, the notes containing no other reference to the corporation, the latter signer was liable thereon to the payee, under Sec. 9991, R. S. 1909, although she was, in fact, the secretary of the corporation.</p> <p>8. COURTS: Bills and Notes: Rules of Decision. Settled rules of law, governing commercial paper, cannot be set aside because their application in a particular case will result in hardship.</p>

<p>1. MASTER AND SERVANT: Injury to Servant: Res Ipsa Loquitur. Tbe res ipsa loquitur doctrine does not apply in an action by a servant for injuries sustained by reason of tbe master’s negligence in furnishing him an unsafe place in which to work.</p> <p>2. -: -: -: Sufficiency of Petition: Petition Construed. In an action by a servant for personal injuries, tbe petition alleged that defendant’s foreman negligently allowed plaintiff’s working place to become unsafe and dangerous by permitting a hoisting engine to be operated over plaintiff while he was performing work which he had been ordered by the foreman to do. Held, that the petition counts upon the theory that defendant failed to exericse ordinary care to furnish plaintiff a reasonably safe place in which to work, and does not invoke the res ipsa loquitur doctrine. Held, ;’further, that the petition states a cause of, action.</p> <p>3. -: Safe Place to Work: Duty of Master. It is not only the duty of the master to exercise ordinary care to furnish the servant a reasonably safe place in which to work, but to keep it reasonably safe for him to perform the labor required of him.</p> <p>4. DAMAGES: Inability to Work: Admissibility of Evidence. In an action for personal injuries, evidence tending to show that plaintiff had not been working and had not been able to work since receiving his injuries, was admissible for the purpose of showing the permanency and extent of his injury and disability, notwithstanding the petition did not claim damages for loss of earnings; and the fact that the instruction on the measure of damages did not permit a recovery for loss of earnings shows that it was admitted for the purpose above stated only.</p> <p>5. EVIDENCE: Expert Testimony: Opinions: Conclusions. In an action for personal injuries, evidence by a physician that, in his opinion, plaintiff would not be able to do heavy lifting or to perform heavy work as he could before he was injured, was admissible as expert testimony, and was not objectionable as being the statement of a mere conclusion.</p> <p>6. MASTER AND SERVANT: Injury to Servant: Instructions. In an action by a servant for personal injuries, the petition alleged that defendant’s foreman negligently allowed plaintiff’s working place to become unsafe and dangerous by permitting' a hoisting engine ' to be operated over plaintiff while he was performing work which he had been ordered by the foreman to do. An instruction for plaintiff permitted a recovery if defendant negligently allowed the place in which plaintiff was working to become dangerous, by “negligently allowing the hoisting machine and bucket to be operated near plaintiff.” Held, that the instruction was not erroneous as broadening the allegations of the petition, by adding the words “and bucket” to the words “hoisting machine,” since the “hoisting machine” described in the petition was composed of a cable and bucket operated by the engine.</p> <p>7. INSTRUCTIONS: Applicability to Issue. Instructions permitting a recovery should not be broader than the allegations of the petition.</p> <p>8. MASTER AND SERVANT: Injury to Servant: Safe Place to Work: Instructions: Error Cured by Other Instructions. In an action by a servant for personal injuries, the error in an instruction, which did not purport to cover the entire case and authorize a verdict for plaintiff, but merely dealt with the question of assumption of the risk,- “that the law required defendant not only to furnish a reasonably safe place to. work, but also required him to keep it so,” instead of merely requiring defendant to exercise ordinary care to that end, was cured by the latter part of the instruction, which applied the instruction to the facts of the case and charged that if the jury found that the defendant’s foreman neglected (that is, failed to exercise ordinary care) to adopt suitable precautions for plaintiff’s protection to keep his place of work reasonably safe, and plaintiff was injured as a result of such neglect (that is, failure to exercise ordinary care), plaintiff did not assume the risk of such injury.</p>

Louis City Circuit Court. — How. William M. Kinsey, Judge. (1) The answer of defendant Manewal avers no defense to the plaintiff’s petition, and upon the record the plaintiff is entitled to a direction from this court to the trial court to enter judgment in plaintiff’s favor upon the cause of action set forth in his petition. Bank v. Refgr. Co., 236 Mo. 415; Poindexter v. McDowell, 110 Mo. App. 233; First Nat. Bank v. Bennett, 114 Mo. App. 695.

Louis City Circuit Court — Eon. Eugene McQtálíin, Judge. (1) Mere forgetfulness of the party or his attorney will not excuse him. But misunderstanding or mistake undoubtedly will. It is a case of an honest mistake of fact. Parks v. Coyne, 156 Mo. App. 395; Barto v. Electric Co., 119 Iowa, 179; Davis v. Carp, 139 Mo. App. 650; Realty Co. v. Timmerberg, 178 Mo. App. 655; Breed v. Hobard, 187 Mo. 140.

Louis City Circuit Court. — Hon. Leo S. Rassieur, Judge. (1) Filing of the rates with the Interstate Commerce Commission and furnishing copies thereof to the freight office is incontrovertible evidence of the existence of - such rates, and the shipper is charged with notice thereof. Railroad v. Cisco Oil Mills, 204 U. S. 449-451 (51 L. E. 562-563); Kellerman v. Railroad, 136 Mo. 188; Donovan v. Wells, Fargo & Co., 265 Mo. 313; Southern Railroad v. Carl, 227 IT.

<p>1. COMMON CARRIERS: Interstate Commerce: Illegality of Freight Rate: Jurisdiction of State Courts. A complaint based upon the illegality or impropriety of the published freight rate for an interstate shipment is not within the jurisdiction of the State courts.</p> <p>2. -: -: Excessive Charges: Jurisdiction of State Courts. Where a railroad company wrongfully exacts a freight charge for a shipment, in excess of the rate it advertises in its tariff sheets, a cause of action by the shipper to recover the excess is within the jurisdiction of the State courts, although the shipment is an interstate one.</p> <p>3. -: -: -: Long and Short Haul Clause: Tariff Construed. Where the tariff sheet of a railroad company named freight rates from two points on its line to a common destination, within the same State, the higher rate being charged for the shorter haul, the further clause appearing in the sheet, that “on interstate traffic a higher rate must not be charged for a shorter than a longer distance over the same line, the shorter being entirely included within the longer distance,” did not affect the named rates, and was not an offer to transport a shipment consigned to a point in another State, from the farther point to such common destination, at the same rate charged from the point nearer the common destination, so as to authorize a recovery by a shipper for the difference between the two rates.</p> <p>4. -: -: Laws to be Read into Tariff Sheets. The pertinent provisions of the Interstate Commerce Act are to be read into tariff sheets filed by carriers, relating to interstate shipments, and the State laws touching the matter become an integral part of such sheets, if applied to intrastate shipments. '</p> <p>5. -: -: Contract for Less than Established Rate. A carrier may not, under the law, by special contract with a shipper or otherwise, bind itself to deviate from the established rate for an interstate shipment, duly promulgated and in effect.</p>

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) The evidence in the case, coming directly or indirectly from the plaintiff herself and remaining uncontradicted and unexplained, conclusively establishes the fact that on the date of the policy and at the time of the application therefor, and for approximately eight years prior thereto, the insured was afflicted with a stricture of the rectum, also called tuberculosis of the rectum, and that said disease caused…

Louis City Circuit Court. — Hon William M. Kinsey, Judge. (1) There was ample proof offered by plain :iff of the execution of the notes by their maker, which, with their recitals and the possession of the papers by plaintiff, constituted evidence of liability of the estate, which the learned trial judge erred in taking away from, the jury by the instruction given. R. S. 1909, secs. 9,995, 10,021, 10,174; Boeka v. Nuella, 28 Mo. 180; Willard v. Moies, 30 Mo. 142.

<p>1. STATUTE OF LIMITATIONS: Pleading: Demurrer. The Statute of Limitations can be invoked by a special demurrer, where the petition, on its face, discloses that the action is barred' by the general statute, and nothing is pleaded as an exception relieving against the bar.</p> <p>2. -: -: Avoidance of Bar. If the cause of action is such that the bar of the general Statute of Limitations may be obviated by some exception thereto, plaintiff must plead the facts that bring the case within such exception.</p> <p>3. JUSTICES’ COURTS: Pleading. Under Sec. 7412, R. S. 1909, technical rules of pleading are wholly inapplicable to a statement of a cause of action before a justice of the peace.</p> <p>4. -: -: Sufficiency of Statement. The statement of the cause o'f action, in a suit filed in a justice’s court, is sufficient if it' serves to reasonably apprise the defendant of the nature of the claim asserted against him and is sufficiently specific and definite to bar another action on the same demand.</p> <p>5. -: -: -: Statute of Limitations: Avoidance of Bar. In a suit instituted in a justice’s court, the statement need not, in order to state a cause of action, plead the facts showing an exception relieving against the bar of the general Statute of Limitations; and proof of such facts may be made at the trial, notwithstanding they are not pleaded as an exception in the statement.</p> <p>6. -: Statute of Limitations: Manner of Invoking. If the defendant, in an action instituted in a justice’s court and appealed to the circuit court, wishes to raise the point that plaintiff’s statement shows his cause of action is barred by the Statute of Limitations, he must do so, either by pleading the statute relied on or by invoking the same in some appropriate manner at the trial. ></p> <p>ON MOTION FOR REHEARING.</p> <p>7. JUSTICES’ COURTS: Appeal to Circuit Court: Rules of Practice. Where a case is appealed from a justice’s court to the circuit court, the general rules of practice in the latter court govern, but not the rules of pleading applicable to causes originating therein.</p> <p>8. -: -: Amended Statement: Manner of Determining Sufficiency. Where an action originates before a justice of the peace and is appealed to the circuit court, the sufficiency of an amended statement filed in the latter court is to be determined by the requirements of the law applicable to statements filed in justices’ courts.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The court erred in refusing defendant’s request for a directed verdict. There was no evidence upon which the plaintiff was entitled to a judgment or, at least, the judgment should have ,been for the defendant. Secs. 10,001, 10,002, R. S. 1909. (2) Instructions numbers 1, 2 and 6, given at the request of plaintiff, are erroneous.

Louis City Circuit Court. — Hon. George C. Hitchcock, Judge. (1) The verdict was against the evidence. (2) The verdict. was against the instructions of the court asked by and given for the appellant. These instructions were given upon the theory that the situation justified the belief, that respondent’s conduct showed she was dealing with stolen property. ' The words used were evidential of malice under the circumstances.

<p>1. BEEACH OF PEOMISE: Eeiteration: Breach: Eeconcilation. A contract of marriage made during a protracted courtship, from the nature of the parties and of the courtship itself, is one that is constantly being restated or reaffirmed, but it is one contract, not separating into distinct agreements at each protestation. And if there be a breach followed by reconciliation and renewal of promise, the original contract continues.</p> <p>2. -: Eescission: New Contract: Substitution: Seduction: Evidence. A contract of marriage may be mutually rescinded like any other contract. If afterwards another engagement is made it would constitute a new agreement. But a refusal to comply by one and an institution of an action for damages by the other, and a reiterated promise by the former, immediately followed by a dismissal of the action and then another refusal followed by re-instituting, the action is not a rescission; nor is it a substitution of a new contract for the old, and seduction following the first promise, but not repeated after the last, may be given in evidence on the second action.</p> <p>3. -: Instruction: Former Chastity. An instruction authorizing allowance of damages for seduction in a breach of promise action should include a hypothesis whether the plaintiff.'was formerly chaste. But if such hypothesis is stated in defendant’s instructions it will suffice.</p> <p>4. -: Unsigned Memorandum: Abstract. Where error is charged in admitting in evidence an unsigned written memorandum and the appellant omits to include the paper in his abstract, the error cannot be noticed on appeal.</p> <p>5. -: Excessive Verdict. In an action for breach of promise where seduction and abortion appear together with a fraudulent renewal of the promise after once breaching the contract seven thousand and five hundred dollars is not an excessive verdict.</p> <p>6. -: Argument: Remarks of Counsel. In the argument to a jury in an action for breach of promise it is not reversible error for counsel for plaintiff in referring to the defendant, to say, “If you remove his shirt you will find written plainly across his back ‘without recourse.’ ”</p>

<p>1. FIRE INSURANCE: Ownership of Property Insured. The acceptance of a fire insurance policy containing a provision which declared it should he void and of no effect “if the interest of the insured he other than unconditional and sole ownership, or if the subject of insurance be a building on ground now owned by the insured in fee simple” is equivalent to a declaration that the insured was the unconditional and sole owner of the building insured and of the fee simple title to the ground, and that if such declaration were not true, the policy was void from the beginning.</p> <p>2. -: -: Fee Simple. The term “fee simple” has never been used to distinguish between legal and equitable estates, but to define the quantity and duration of estates and to denote the largest estate in land known to the. law.</p> <p>3. -: Mortgage: Breach of Condition. A mortgage being a mere lien on the land does not affect the quality of the fee simple estates of the mortgagor and until the mortgagee enters for breach of the condition, the mortgagor continues to be the owner of the estate and cannot be regarded as the owner of less than a fee simple title.</p> <p>4. -: Change of Ownership: Option on Property Insured. Where the insured gives an option before a loss by fire occurs, to another to purchase the property insured, no breach of the provisions of the policy concerning changes of interest in the property insured, other than by the death, of the insured, is committed, such option not being exercised until after fire.</p> <p>5. -: Foreclosure on Sale of Property Insured: Policy Void. The advertisement of property for sale under a deed of trust after a policy of insurance has been issued thereon, with the knowledge of the insured, renders the policy void, if it contained a provision to the effect that the policy shall be void “if, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of the sale of any property covered by this policy by virtue of any mortgage or deed of trust.”</p> <p>6. -: Cloud on Title. The sale of the property insured under an execution, constituted only a cloud on the title, and not a complete transfer of the property, under the facts disclosed in this case, and the insured was not thereby prevented from recovering on the insurance policy the property having been destroyed by fire subsequently to the sheriff’s sale.</p> <p>7. -: Notice of Encumbrance Waived. The clause in a rider on ' a fire insurance policy providing that “notice of encumbrance waived” has no reference to the clause in the body of the policy providing that the policy should be void if foreclosure proceedings be commenced, or notice of sale given, under a mortgage or deed of trust. That clause refers to encumbrances and not to a sale, or notice of a sale under a mortgage or deed of trust.</p> <p>8. -: Waiver: Unearned Premium. Where a provision in the policy provides that if the policy is cancelled or becomes void, the premium having been actually paid, the unearned portion shall be returned on surrender of the policy, and the insurer knew nothing of the ground of forfeiture until after the fire it cannot be deemed to have waived the forfeiture provisions of the policy by reason of the fact that it has failed to return the unearned portion of the premium, as the nature of this contest shows no indication of any surrender of the policy, but, on the reverse, an earnest effort to enforce it. Hence, the conditions have not yet arisen which would require the defendant to make a return of the unearned premium.</p>

<p>1. INSURANCE, THEFT: Automobiles: Value. When an automobile is stolen from its owner, who has it insured against theft, and the ear is located and recovered in another State and city by the Insurance Company, the Insurance Company’s obligation does not end there, for they must return it to the owner with indemnity for damages to it, or pay the face value of the Insurance policy. A mere offer by the Insurance Company to turn the car in another State over to the plaintiff there and in addition to pay all damages by reason of theft is not a sufficient compliance with its Insurance policy, in order to defeat a recovery of the face value of the policy.</p> <p>2. -: Evidence: Waiver. In order for an Insurance Company to show a waiver, by an owner of an automobile of its return to him so as to defeat a recovery for the face value upon a theft Insurance policy, it must do so by clear and distinct evidence that such a waiver was made.</p>

<p>1. NEG-LIG-ENCE: Street Railways: Sudden Jerk of Car. The plaintiff, while in the act of alighting from the defendant’s street ear, was thrown therefrom by a sudden jerk of the car and was injured. He was standing on the running board of the street car with his right foot suspended over the street, but not holding to the car with his hands, and just as his right foot was about to touch the ground the car jerked forward, so that his right foot, touching ground, acted as a pivot, causing him to spin around and fall backward with his head in the direction the car was going striking the pavement on his back and side. Held, that the cases of Scroggens v. Railway, 138 Mo. App. 215 and Daniels v. Railway, 177 Mo. App. 215, in which is set out the doctrine relating to falls from a street ' car against the natural law of force and gravity, does not apply in this case. The appellate courts have carefully .refrained from extending the rule in these two cases.</p> <p>2. -: -: -. There is no arbitrary doctrine that can be laid down by appellate court stating that a human body may be projected' in any given direction, when the court is not in a position to know of the intensity or suddenness of the jerk of the car, or of the quality of the other forces that were brought into play at the time.</p>

<p>1. TAX BILLS: Suit in Equity to Cancel: Grading Boulevard: Authorization by the City.’ The grade of Swope Parkway Boulevard in Kansas City had been fixed and established. The park board passed a resolution that a certain part of said boulevard be graded to its full width and to the established grade. The City Council then passed an ordinance authorizing the work to be done “according to plans and specifications” referred to as being then on file when there were none. If said ordinance had been the only legislative enactment of the city authorizing the work to be done, there might be room for the claim that the council had authorized something to be done the nature and extent of which was unknown as no specifications had been adopted. But, after the park board had adopted plans and specifications, and after it had prepared a form of contract, had advertised for bids and had let the tentative contract, the city, by ordinance, authorized the grading to be done as resolved by the board and in accordance with the plans and specifications'on file, and also ratified the tentative contract, which made the same final and binding under Sec. 31, Art. 13 of the Charter. Hence there was legislative authorization for the grading and for its being done according to specifications, even if the first ordinance referring to plans and specifications was passed when none were on file.</p> <p>2. -: -: -: -: Committing City to Improvement. The passage of an ordinance by Kansas City authorizing the grading of a boulevard and referring to plans and specifications as' being on file when there were none in existence, did not irrevocably commit the city to the improvement regardless of the cost 'since the whole matter was in the council’s hands and c-ould be determined when it came to consider whether it would finally authorize the work and .ratify the contract made by the board.</p> <p>3. -: -: -: -: Ordinance: Effect of. The passage of an ordinance by Kansas City authorizing the grading of a boulevard and referring • to plans and specifications as being / on file when there were none in existence was not an absolute nullity, but with the plat of the city engineer, was sufficient to afford a basis on which to institute proceedings in the circuit court to ascertain damages. Hence the said court was not without jurisdiction to entertain and carry on said proceeding.</p> <p>4. -: -: -: -: Ordinance: Surplusage. Where the provisions in the charter of Kansas City, pointing out the steps necessary to be taken in grading a street, were not violated in grading a parkway, and the fact that no plans or specifications were adopted prior to the adoption of the first ordinance of the city council in relation to the work, referring to such plans and specificatins as on file is not shown to have resulted in any detriment or injustice to the city, the public,. or the parties involved, the mere recitation of such first ordinance that the plans and specifications were on file may be treated as surplusage.</p> <p>5. -; — : -: Roads and Highways: Establishment: Defects Cured by Deed from Owners. A right of way deed signed by a large number of landowners, conveying to a county the right of way necessary to make a particular boulevard 150 feet' in width, as to all lands' whose owners joined therein, cured all defects in a prior proceeding to establish the highway.</p> <p>6. -: -: Dedication: Subsequent Acquisition of Title. If deeds were sufficient to vest title to a graveyard in a land company which had dedicated streets by platting an addition, such title, though acquired subsequent to the platting of the addition, would inure to the benefit of the public by reason of the dedication by plat.</p> <p>7. -: -: -: Dedication of Land: Intention: Vesting of Title. If landowners intended to and did consent to an appropriation of a strip of land for a boulevard, it was not necessary for the prescriptive term to elapse in order to vest title in the public.</p> <p>8. -: — : -: -: -: -: Work on Private Property: Evidence. In a suit to cancel tax bills' on the ground that the boulevard improved was over private property, evidence held not to warrant cancellation and cause a company which graded the boulevard to lose payment for work done in good faith, and with no notice that there could be even a claim that grading was not on public property.</p> <p>9. -: -: -: -: -. Where owners of land executed a right of way deed for a parkway to the county three days before they got title to the land, but more than ten years elapsed after they obtained title and neither they nor any ocher person holding the property at any time made any claim to the strip they sought to dedicate by joining in the right of way deed which was open to and used by the public,-such conduct on their part evinced an intention to dedicate the land after they had • title; and if the right of way deed was not a valid statutory dedication, it was good as a dedication at common law.</p> <p>10. -; -: -: -: Corporations.: Conveyance: Want of Seal. If a realty company a corporation has a seal and does not affix it to a deed relinquishing right of way for a boulevard, doubtless the failure to attach the seal makes the deed insufficient as a conveyance of the company’s legal title. But since the dedication attempted by the company has been accepted by the public, it is valid as a common-law dedication if not good otherwise. .</p> <p>11. -: -: -: Church Trustees: Authority: Presumption. Church trustees, in conveying land to a county for a parkway, are presumed to have acted by authority from the church for whose benefit and under whose direction they held the property, and such trustees can properly dedicate property to a public use not inconsistent with the trust as to consent to an easement on thp east side of church property to create a beautiful boulevard in front of the church.</p>

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

<p>1. TELEGRAPH AND TELEPHONES: Delay: Proximate Cause: Knowledge: Face of Telegram. A telegram was addressed to the sendee as an attorney in which it was stated that two law suits would he heard “at Ottumwa next Thursday” stating the nature of the suits and that “Counsel will have preliminary conference at Ottumwa Wednesday." The sendee had been employed as an attorney in the cases. Delivery of the message was delayed for ten days and he in consequence did not go to Ottumwa and lost his fee. It was held that the delay in delivery was the proximate • cause of loss of the fee; and that the face of the telegram sufficiently showed the probable result of a failure to deliver.</p> <p>2. -: Contract: Breach: Damage: Proximate Cause. Where according to the usual course of things, a certain result will follow the breach of a contract, or a duty founded on contract, the damage from such result is not remote and the breach is the proximate cause of the damage.</p> <p>3. -: Interstate Commerce: Federal Decisions. A telegram to be sent from one State to another is interstate commerce and Federal laws and decisions are of controlling influence in disposing of litigation arising thereon.</p> <p>4. -: Limitations of Liability on Back of Message: Repeated Message. Printed stipulations on the back of a telegram blank limiting liability for delay, mistransmission and misdelivery, of the message written thereon unless repeated, are valid. But the provision as to repeating the message will not apply where the message has been correctly transmitted, the fault being merely in neglect to deliver.</p> <p>5. --: Stipulation: Limit to Cost of Message: Invalidity: Neggence. A stipulation that a telegraph company will only be liable for delay in delivery for the sum paid to it for transmitting the message unless it is repeated, is not- a stipulation limiting liability; but is, really, a stipulation against any liability for the negligence of such company, and the right to make such stipulation should not be allowed.</p> <p>6. -: Valued Message. The printed stipulation on the back of a telegram that the message is valued at fifty dollars and limiting all liability to that sum is valid.</p> <p>7.. -: Printed Stipulation: Action by Sendee. The printed stipulations on the back of .a telegram limiting the liability of the company may be invoked by the company in an action brought against it by the sendee.</p> <p>8. INTERSTATE COMMERCE COMMISSION: Rates: Presumption. It will be presumed, in the absence of a showing to the contrary, that a telegraph company has filed with the interstate commerce commission a copy of its rates, limitations, exemptions, and schedules.</p>

<p>Appeal from Jackson Circuit Court. — Hon. C. A. Burney, Judge.</p>

<p>1. INSUKANCE: Policy Loan: Non-payment of Premiums: Eight to Beinstatement: Extended Insurance: Statute. Insured’s policies each contained a provision that “if there shall be an indebtedness to the company and if any premium shall not be paid on or before the date when due, an amount of insurance equal to the face amount of this contract less the indebtedness will automatically continue from said due date as insurance.” They also provided for reinstatement by payment of all premiums where evidence of insurability was furnished. On policy loan agreements, which made the policies collateral, insured borrowed the full loan value of each policy and defaulted in the payment of premiums at a time when the indebtedness due exactly equalled the cash value. The company notified insured of this fact and 'suggested that he reinstate by paying the premiums and furnishing certificate of insurability. The insured offered to pay the premiums but refused to furnish the certificate of health and afterwards, without reinstatement or complying with the conditions necessary therefor, tendered the amount of the debt and demanded his policies. The tender was refused and insured died with matters in this shape. The policies were in harmony with and subject to the extended insurance statute which provided that after deducting from three-fourths of the net value of the policies the amount of indebtedness due the company, the balance should be taken as a basis for extended insurance: Held, that there was nothing on which extended insurance could be based, there being nothing in the policies or in the statute requiring the continuation of any further liability in the way of insurance; and that tender of payment of the debt did not give insured the right to extended insurance on the policies, nor was the company bound to reinstate insured until the conditions of reinstatement were complied with.</p> <p>2. -: Default in Premiums: Extended Insurance: Estoppel. Because insurer urged insured to reinstate after forfeiture, pursuant to rights contained in the policy and in accordance with the terms thereof, did not estop insurer from applying the net value of the policies to payment of the loans secured thereby, leaving nothing on which extended insurance could rest. Nor did the designation of the policies as “lapsed” have any effect in that way, since the meaning of the term was that the policies were in suspension so long as the insured had a right tc exercise the privilege of reinstatement conferred by and contained in the policies.</p> <p>3. -: Policy Loans: Pledge. Loan agreements, showing on their face that they were made subject to provisions of life policies that insured could borrow on the sole security of the insurance contracts and that they should be assigned as .security according to terms of loan agreements, are not loan and pledge contracts distinct and independent from the policies, giving insured right to extended insurance by repayment of loan after default in paying premium.</p> <p>4. -: Reserve Value: Loan Agreement: Settlement. A provision in a loan agreement that, upon default in paying premiums on policy pledged, the loan if unpaid may be foreclosed by satisfying the indebtedness, the balance if any to be applied to purchase extended insurance, is a reasonable means of settlement and not contrary to public policy.</p>

<p>1. EQUITY: Interpleader: Trustee in Mortgage. The trustee in a mortgage to secure corporate bonds who has sold the property under the mortgage and has administered the fund promptly and with dispatch as far as it could, and holds the remainder of the fund, over which contention is made, as a mere disinterested stakeholder ready to pay it to whomsoever it belongs, but not knowing to whom it belongs, and against whom one suit is brought and others are threatened, has the right to seek protection of a court of equity and have the rival claimants interplead, unless something has occurred or exists which, clearly and upon the plainest principles of justice, puts the trustee outside the pale of an equity court’s consideration.</p> <p>2. - — : -: -: Partiality. Evidence considered and held not to disclose partiality on part of a trustee. The fact that he failed to notice that one of á number of bonds was not in controversy and did not pay it over to the party entitled thereto but offered to pay the whole amount into court should not deprive him of the benefit of á court of equity since no harm has resulted to any one and the court can order the one uncontested bond to be paid over to the party entitled thereto and the interpleader had over: the rest.</p> <p>3. -: -: Bill: Sufficiency: Weed Wot State Rival Claims. A bill for interpleader need not state the facts upon which the rival claimants to the fund depend with the same particularity required of the claims when they file their plea, but it is sufficient if the bill states the respective claims in such a way as to show that there is ground for them, and a reasonable doubt as to where the money should go.</p> <p>4. -: -: Amount to be Paid into Court. Where all of the other bondholders, in settling with the trustee on the distribution of the proceeds of the foreclosure sale, reserved the question of their right to the distributive share of bonds held by a bank, the validity of which was questioned, the trustee is justified in paying into court the entire sum, though only part of the other bondholders had formally notified him that they questioned the validity of the bonds in dispute.</p> <p>5. -: -: -: Privity of Title. All holders of bonds secured by a mortgage on corporate property assert a right to the fund resulting from a foreclosure sale, which comes from the same source, and therefore can be required to interplead as to their rights to the fund, though there is no privity in the title of the respective parties to the bonds held by them.</p> <p>6. -: -: -: Defenses: Dispute Over Amount: Interest in Fund. A real dispute between the party seeking interpleader and those claiming the funds, is fatal to the right to have the claimants interplead. But the right to interpleader cannot be defeated by an unfounded assertion that there is more due from the trustee than is admitted by him and therefore an answer by way of cross-bill for interpleader, which alleges that the plaintiff in his complaint claimed more than was due, not in good faith, but solely to defeat defendant’s right to an interpeader, is not demurrable. And a trustee under a mortgage securing corporate bonds does not, by paying the expenses of the sale, including the amount of the trustee’s commission as fixed by statute, retain an interest in the fund which defeats his right to have the claimants thereto interplead.</p>

<p>Appeal from Adair Circuit Court. — Hon. G. H. Stewart, Judge.</p>

<p>DAMAGES: Actual and. Punitive: New Trial: Right of Trial Court to Interfere with Award of Punitive Damages. In an action for wrongful ejection of passenger from train, the jury awarded plaintiff $5 actual and $500 punitive damages. The trial court thought $100 punitive damages was sufficient and directed a remittitur of $400, and, upon refusal of plaintiff to comply, granted a new trial. Since the decision of the Supreme Court in State ex rel. v. Ellison, 268 Mo. 225, a trial judge has the same power to order a remittitur in an award of punitive damages as in one of compensatory damages; and following that case as “the last previous ruling” of the Supreme Court, and in obedience thereto, the act of the trial judge in disagreeing with the jury as to the amount to be awarded for punitive damages, and in granting a new trial on plaintiff’s refusal to enter the required remittitur, is upheld even though the award made by the jury was not so large as to be outrageous or induce the belief that the jury acted from partiality, prejudice or other improper motive.</p>

<p>DAMAGES: Drainage District: Governmental Agencies: Liability. Although drainage districts are governmental agencies to the extent at least that they have all the elements of corporations formed to accomplish a public use and purpose, yet they are not exactly like a county or a township, nor are they purely governmental agencies such as school districts. And where in the creation of a drainage district and its system of drainage, waters are collected and thrown in a body upon land adjacent to but outside of said district and no right to subject it to such overflow has ever been acquired in any way nor opportunity afforded for assessment of damages arising from the creation of said district, the district is liable for such damages. Otherwise such adjacent property' is taken and destroyed without compensation in order that the district’s public enterprise may be set on foot.</p>

<p>1. INSURANCE: Inspection of Property after Fire. The provision in an insurance policy allowing insurer an inspection of the insured property remaining after the fire is a reasonable one for the protection of the insurer, and the right cannot be denied even though the damage was to furniture by water and falling plaster and the furniture has been dried and cleaned so that the furniture will not appear to be so badly damages as it would if examined immediately after the fire. In other cases where insured has refused to allow inspection and has made it impossible to secure that right, such violation of the policy has been held sufficient to prevent recovery thereon, but where the furniture is still where it can be inspected a new trial will be granted.</p> <p>2. PLEADING: Defective Petition: Cured by Verdict. Although a petition could have been more carefully drawn, yet, unless it is so defective as to wholly fail to state any cause of action, it is not open to attack after verdict but is cured thereby.</p> <p>3. TRIAL: Evidence: Motion to Strike Out. When a witness gives an answer that is unresponsive to the question asked which is a proper one, and the answer is such that it could not be anticipated, the proper practice is to move to strike it out, and such motion cannot be denied on the ground that the party has waited to see what the answer would be before objecting.</p> <p>4. -: -: Instruction. Evidence, in a suit on a policy of fire insurance, that plaintiff suffered a daily loss to his business while interrupted by the fire is improper and exceedingly prejudicial when considered with reference to an erroneous instruction that in determining the amount of plaintiff’s loss the jury should consider the difference between the value of the property before and after the fire and to “further consider what damages plaintiff may have suffered as a result of said fire.”</p>

<p>1. PUBLIC SERVICE CORPORATIONS: Gas Company:- Duty to Extend Mains. A public service corporation engaged in supplying gas to the people of a city by means of pipe lines laid in the street under a franchise is not under the absolute or unconditional duty of extending its mains to new territory whenever requested, without regard to the reasonableness of the demand, in the absence of anything in the nature of a special contract or obligation on its part requiring it to do so.</p> <p>2. -: -: -: Reasonableness of Demands for Extensions. The reasonableness of a demand upon a public service corporation, like a gas company, to extend its mains to other uncovered portions of the city is a question for the courts to determine, depending upon the expense involved, the number of customers likely to be served and the probable revenue to be derived from the extension as compared with the necessary preliminary outlay and the likelihood of the company receiving a reasonable return thereon.</p> <p>3. -: -: -: -: Contract with Customer for Extension of Main: Validity: Action to Recover Money Paid upon Completed Contract for Extension. A gas company had a rule not to make an extension unless those desiring it would first advance the' cost thereof and receive in payment the amount paid for gas within a certain limited time. Under this rule plaintiff contracted for an extension to certain undeveloped territory and after performance of the contract sued for the money expended in building the extension on the ground that said contract was void, said rule having been deemed by the Public Utilities Commission to be unjust and discriminatory. Held, that as the duty of the public service corporation to extend its mains was not absolute or unconditional, the contract was not void in the absence of facts showing that the company was bound to extend its mains on request, and the contract having been performed and the money paid on the strength of it, the money could not be recovered. The fact that the Public Utilities Commission has decided that a universal rule of the character indicated is void, does not affect the question of whether the particular contract in question made under that rule was void and without consideration.</p>

<p>1. CONTRACTS: Guaranty: Prosposal: Interpretation: Ambiguity. A contract of guaranty is composed of the proposal and the acceptance. The proposal is one sided and couched in the language of the guarantor and is therefore to .be interpreted as strongly against him as the sense of it will'admit.</p> <p>2. -: -: Credit: Specific Sum: Liability. A contract, of guaranty reading that, “In consideration of your firm extending credit to the Gary Clothing Company to the amount of five thousand dollars, I agree to be personally responsible,” etc., should be interpreted to mean that the clothing company is to be given credit, if it asks- it, in sums that will reach at least five thousand dollars; and if after extending credit for a part of that sum, further credit is wrongfully refused, the guarantor is discharged.</p>

<p>1. INSURANCE: Death from Accidental Injury: Evidence as to Cause of Death: Burden of Proof. In a suit by the beneficiary on a policy of insurance against death by accidental means, where the claim is that insured inhaled a bug which induced pneumonia and thereby brought on his death, the burden is on plaintiff to show not only that such accidental inhalation occurred but also that insured’s death came from that cause rather than from disease caused otherwise. The cause of death cannot be left to conjecture.</p> <p>2. -: -: -: Admissibility. In a suit on an accident policy for death by accidental means, where the claim is that insured inhaled a bug which produced pneumonia from which he died, and there is no evidence showing with any degree of reasonable certainty that insured’s death was caused by the inhalation except the doctors’ opinion that it was, and they admit that if they had not been told of such inhalation, they could not say what was the cause of the trouble, the very life of plaintiff’s case depends upon whether the testimony in relation to such inhalation is properly admissible under any exceptions to the hearsay rule.</p> <p>3. -: -: -: -: Opinion of Experts: Patient’s Statement: Hearsay. The evidence of plaintiff’s experts as to insured’s death from inhalation of a bug was not given in answer to hypothetical questions in which the truth of the claim of inhalation was assumed, nor was it based upon what they themselves found, but upon what the patient related to them concerning a past occurrence and in detailing his condition in the past. Such statements are hearsay, and the opinions of the experts based on them were improperly received.</p> <p>4.--; -: -: -: -: -: -: Res Gestae. The evidence that insured’s death was caused by the inhalation of a bug consisted solely of statements made some time afterward by him to others. The circumstances under which they were made are considered and held not to be such as to make them admissible as a part of the res gestae.</p>

<p>INTOXICATING LIQUOR: Two Offenses: Instructions. Where the evidence for the State makes two prima-facie cases of a sale of liquor to two different persons and the evidence for defendant contradicts both, it is error to submit to the jury that they could find him guilty if they believed he sold to one or the other.</p>

<p>1. NBGLGE3STCE: Shop-keeper: Box of Merchandise: Liability. A shop-keeper -had a box of heavy goods unloaded on the sidewalk in front of his place of business. It was six feet high, three feet wide and about one foot and a half thick. He caused it to be leaned up against the building with the bottom so close to the building as to make its position insecure. Plaintiffs’ child was running by when the box toppled over and killed her. The shop-keeper was held liable; and it was further held that the rule of res ipsa loquitur was applicable.</p> <p>'2. RES IPSA LOQUITUR: Neglience: Presumption. "When an occurrence takes place which, in the ordinary course of things does not happen if those who have the management of the place use proper care, it affords reasonable evidence, in tbe absence of explanation by defendant, that it arose from want of such care.</p> <p>3. NEGLIGENCE: General Charge. A charge of general negligence admits of the application of the rule of res ipsa loquitur.</p>

<p>1. NEGLIGENCE: Damages: Carrier and Passenger: Crowded Street Car. A carrier of passengers operating a car, so densely and greatly over-crowded that some were compelled to stand on the steps and hold to the handrails, must see that the car is managed with the highest degree of care which these circumstances called for. A car, thus' loaded and with passengers on the steps, was proceeding moderately along the street when it suddenly gave an unusual and violent jerk which threw a passenger off and killed him. Held, that such unusual and violent jerk occurring under those circumstances was prima facie unnecessary and negligent.</p> <p>2. -: -: Death Statute: Suit hy Administrator: Pleading: Petition: Evidence: Demurrer. In a suit by an administrator for the benefit of the heirs of an unmarried adult under the fourth clause of section 5425, It. S. 1909, a demurrer to the evidence cannot he sustained on the ground that the petition states no cause of action in that there was no allegation to show that the beneficiaries —a father, mother and sister — had suffered a pecuniary loss by the death of the deceased. While the petition contained no such allegation, yet it stated a cause of action as to the penal part of the statute and authorized a recovery of $2000 allowed therefor. But the demurrer asserted that no cause of action whatever was alleged, hence the court would have erred in sustaining it.</p> <p>3. -: -: -: -: -: -: Pecuniary Loss. Where the suit under the death statute is by a husband, wife, or minor child, or by parents for the death of a minor, the law will perhaps imply pecuniary loss arising from that relation; but where the death is that of an adult, upon whom the law imposes no duty of a pecuniary nature toward the persons for whom the suit is brought, facts should be pleaded showing that a pecuniary loss has been sustained, otherwise a case for damages' on account of pecuniary loss is not stated.</p> <p>4. —=—: -: -: -: -: -: ■,-. In a suit by an administrator under the fourth clause of the death statute, if the petition does not plead facts showing that the ben^ fieiaries for whom the suit is brought have suffered a pecuniary loss, no recovery can be had for anything more than the penalty allowed by the statute.</p>

<p>REPLEVIN: Justices of the Peace: Jurisdiction. In a replevin suit where a justice of the peace finds that both plaintiff and defendant have an indefinite interest in the subject-matter, he has no jurisdiction under the statutes to certify it to circuit court as an equitable matter for settlement. And this action by the Justice does not confer jurisdiction of the subject-matter on the circuit court even though the parties appear in the latter court and try the case without objection.</p>

<p>1. REPLEVIN: Agister’s Lien: Instructions. The plaintiff loaned one Armstrong a sum of money to settle two attachment suits, and took a mortgage on the horse which is the subject of this litigation. When the attachment suits were brought, the constable took charge of the horse under the writs and boarded the horse at the defendant’s barn. After Armstrong settled the attachment suits and gave the mortgage on the horse, he made arrangements with the defendant, Carr, to board the horse. .This was done several hours after the mortgage was executed. When the mortgage fell due the plaintiff demanded his horse or the money from Armstrong, and he was informed that the horse was located at Carr’s barn. Carr refused to deliver up the horse claiming an agister’s lien and the plaintiff instituted this suit in replevin against him. The issues were determined in favor of the plaintiff. Held, that an instruction given to the jury that while the horse was in the custody of the constable no lien accrued to the defendant for the keep of horse during said time, was erroneous:'</p> <p>2. -: -: -. The lien of a mortgagee is superior to any agister’s lien, if such lien is created prior to the placing of the horse with the agister and if the holder of the mortgage has in no way waived his right to priority.</p> <p>3. -: -: -. An agister who takes care of a horse under a contract with a bailee of the horse, and whom he knows to be in charge of the animal, as bailee, is bound to know the extent of the authority of such bailee, and he has no agister’s lien as against the bailor.</p> <p>4. -: -: Constables. It is the constable’s duty under the law to take proper care of animals that are taken into his custody, and, if he does not do so he is liable, but it is not assumed that he will not place them in the custody of some one engaged in caring for like animals.</p> <p>5. -: -: Chattel Mortgages. A chattel mortgage only becomes a lien on a horse as to third parties from the date that it is filed of record, and such mortgage must be recorded within a reasonable time after its execution.</p>

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

<p>1. BILLS AND NOTES: Certificate of Protest by Notary. The certificate of protest of an inland bill of exchange or note by a notary public establishes prima-facie proof of demand, refusal of payment and notice of dishonor necessary to fix the liability of the indorsers on a note. (Sections 6329, 10053, 10059,10088, R. S. 1909.)</p> <p>2. -: -. Formal protest by a notary, or other officer, of the dishonor of any negotiable instrument other than a foreign bill of exchange is not required under, the Negotiable Instruments Act (Sec. 10088, R. S. 1909), yet same may be protested for non-payment and when so protested- the notary’s certificate is admissible and constitutes prima-facie evidence.</p> <p>3. -: Proof of Demand and Notice of Dishonor. As to an inland hill or note demand of payment and notice of dishonor may be made hy any one and the proof thereof may be made by oral or any competent evidence, regardless of formal protest.</p> <p>4. -: Notary’s Certificate of Protest: Not Filed in Justice Court: Receivable in Circuit Court. Action on a promissory note begun in justice court. The Notary’s certificate of protest was not filed in that court but was first filed in the circuit after appeal to that court. Since trial in circuit court is de novo such certificate may be received in evidence when filed fifteen days before trial in that court and is not excluded hy sec. 6329, R. S. 1909, requiring the certificate to he filed at least fifteen days before trial.</p> <p>5. -: Notice of Dishonor: What Sufficient. The statute is complied with regarding notice of dishonor of a note (sec. 10075, R. S. 1909) when it is shown that notice was duly mailed, addressed to defendant, at his proper post office address, regardless of miscarriage in the mails.</p> <p>6. -: Indorsers: Order of Liability. Indorsers, in respect to one another are prima-facie liable in the order in which they endorse. (Sec. 10038, R. S., 1909.) But evidence is admissible to show that they have- agreed otherwise among themselves.</p> <p>7. -: Indorser: When One Considered. One who places his signature on a note otherwise than as maker, drawer or acceptor, is deemed an indprser unless he clearly indicates, by appropriate words, his intention to be hound in some other capacity. (Sec. 10033, R. S. 1909.)</p> <p>8. -: Indorsement in Blank: Not to be Changed by Parol Evidence. Where one indorses a note in blank he cannot by parol evidence show that he signed merely as an agent for a prior party and was not individually liable.</p> <p>9. -: Indorser’s Address: Placed on Note: Notice Sent to. Where an indorser places his post office address on the note and notice of dishonor is sent to such party at that address, this, under the statute is sufficient. (Sec. 10078, R. S. 1909.)</p> <p>10. -: Joint Indorsers: Liability. One joint indorser who receives notice of the dishonor of a negotiable instrument is not discharged because of a failure to notify another joint indorser.</p> <p>11. -: Several Indorsers: What Notice Establishes Liability. When there are successive indorsers, in order to hold any one of them liable it is not necessary to give notice to prior indorsers, notice to the last indorger being sufficient to hold him.</p> <p>12. -: Joint Indorsers: Liability. Joint payees and indorsers who indorse are deemed to indorse jointly and severally.</p> <p>13. -: Notice of Prior Dishonor: Antecedent Parties. Where a party receives notice of dishonor, he has, after the receipt of such notice, the same time for giving notice to antecedent parties that the holder has after dishonor. (Sec. 10077, R. S. 1909.)</p> <p>14. -: Liability of Indorser: Prior Indorsers. Any indorser to whom notice of dishonor is not given by the holder is discharged so far as such holder is concerned, but the party who is notified is thereby made liable to the holder and is given the right to protect himself by giving notice to those parties to the note from whom, on his paying the instrument, he is entitled to reimbursement.</p> <p>15. -: Liability of Indorser: Accommodation Indorser. An indorser on a note cannot escape liability by showing that he received none of the proceeds and acted merely for the accommodation of one who desired to negotiate it. (Sec. 10000, R. S. 1909.) The holder parts with a consideration in the payment on the faith of the signatures thereto and that is sufficient consideration.</p>

<p>1. MECHANICS LIENS: 'Material Furnished: Statutory Rights. A materialman who has furnished material which was used to build defendant’s house may, by complying with the provisions of sec. 8217, R. S. 1909, compel defendants to pay out of such property the debt or such part of it as represents the reasonable value of the material furnished. And this is true although the land owners may have paid the contractor all that was due.</p> <p>2. -: Requirements of Statute: Must Be Complied With. The Mechanics Lien statute is to be liberally construed, yet the rights thereunder are wholly statutory and depend on a compliance with the terms imposed by the statute which create them. And to avail one’s self of the benefits conferred by the statute one must comply with the substantial requirements of same.</p> <p>3. -: When Statement Sufficient. A lien statement filed under the Mechanics Lien statute which is as definite, as the contract under which the material was furnished or tbe labor done, wall generally satisfy the requirements of see. 8217, R. S. 1909.</p> <p>4. -: When Statement Not Sufficient. A statement of lumber and mill work filed under the Mechanics Lien statute giving the amount due with no other description of the material furnished and work done than “lumber and mill work as per estimates,” where such estimates are not in substance incorporated in the statement, is not sufficient.</p>

<p>1. MASTER AND SERVANT: Duty of Servant to Take Precautions. A master has a right to exact of the servant the intelligent use of his senses in performing'his work and that he will take proper precautions for his own safety.</p> <p>2. -: Duty of Master as to Tools: Cannot be Delegated: Master Excused When. The master owes to the servant the duty to - furnish and keep reasonably safe the tools and appliances used by the servant. And while ordinarily such duty cannot be delegated to others, yet the master may require reasonable inspection by the servant and cannot be held liable for a servant’s injury which is due to the servant’s own failure to inspect the tools used.</p> <p>3. -: Defective Tools: Knowledge on Part of Servant: When Recovery Regardless. Mere knowledge on the part of the servant of defects in tools and dangers in their use will not defeat recovery unless the peril is so obvious and glaring that an ordinarily prudent man would not use the tool and this is especially true where the master has promised to repair the tool.</p> <p>4. -: Use of Defective Tool by Servant: Master’s Promise to Repair. Where a servant seeks to excuse himself for using a tool known to be defective because of the master’s promise to repair it, he must further show that the master’s promise and assurance to repair were the inducing causes for continued use.</p> <p>5. MASTER AND SERVANT: Use of Defective Tool by Servant: Authority of Person Making Promise to Repair. Where a servant seeks to excuse his use of a tool known to be defective on the ground of the master’s promise to repair same it must be further shown that the person making the promise has the real authority to represent the master in that respect or is held out by the master as having such authority.</p> <p>6. -: Servant’s Injury: Master Not Liable: When: Evidence. Action by servant against master for personal injuries occasioned by defective shears used by plaintiff in cutting iron for the master. There was evidence that the dull condition of the shears was made known to two other employees who promised to sharpen them.. Evidence examined, conditions and scope of authority of the other two servants considered. Held, that .the knowledge of the defective condition of the shears was not brought home to the master so as to permit him to have same sharpened as knowledge of the fellow workmen was not knowledge of the master: held further that the promise of future repairs was not made by one having authority to represent the master.</p>

<p>1. RAILROADS: Track a Constant Warning: Duty of One Crossing. A railroad track is itself a warning of danger and though an approaching train fail to give other warnings required by positive law or by the facts of the particular case, yet one who without listening or looking, heedlessly attempts to cross such track in front of such negligently operated train, when to look or listen would make known the peril in time to avoid injury, is himself guilty of / negligence as a matter of law, contributing to his own injury, and cannot recover damages.</p> <p>2. -: Care in Crossing: Right to Rely on Warning Signals. One about to cross a railroad track is hot required to use extraordinary care to look and listen for approaching trains and the right to rely- on a compliance with the requirements that approaching trains give due warning by bell or whistle is an important factor in determining whether such traveler is guilty of negligence as a matter of law.</p> <p>3. -: -: Exception to General Rule Arising from Use of Particular Tracks. The rule that railroad tracks are signals of danger requiring those about to cross to look and listen for trains approaching, applies only to tracks which are likely to be used at any particular time. Side-tracks and switches may be so restricted in their use as to make it a question for the jury to say whether one about to cross such track had reason to anticipate that a train might be running thereon.</p> <p>4. -: Due Care: Presumption: Action for Death. Action for death of one whose duties required him to cross and recross many times a spur of defendant railway for which deceased was working. Deceased was crushed by a freight car which was standing on the spur track when such car was bumped by an engine without warning. There was no evidence that deceased did not listen attentively for an approaching engine and in the absence of such evidence the presumption of due care in this respect attended the deceased.</p> <p>5.----: Death: Due Care: Evidence. Action for death of employee whose duties required him to cross and recross defendant’s spur track many times, such track being used only on rare occasions. Conditions and circumstances examined and deceased considered not negligent in failing to look and listen under circumstances where the presence of defendant's engine could not reasonably have been anticipated.</p>

<p>1. BONDS: Statutory Forms: Common Law: Wlio May Recover on. A bond wbicb does not follow tbe form laid down by tbe statute or embody tbe prescribed conditions may, nevertheless, be good as a common law bond and may be sued on by any one for whose benefit it was made, whether named therein or not.</p> <p>2. BONDS AND CONTRACTS: Who May Maintain Action on. A third party may sue on a contract or bond entered into for his benefit though not named therein and not privy to the consideration where the obligees in the bond owe such party a duty of protection and the terms of the bond are sufficiently broad and specific to cover such duty.</p> <p>3. BONDS: Valid if Not Violative of Statute or Against Public Policy. A bond though voluntary and not authorized by any statute is valid if it does not contravene public policy nor violate any statute.</p> <p>4. -: Failure to Meet Statutory Requirements: May be Good Under Common Law. A bond taken by a public officer in attempted compliance with a statute may be good as a common law bond . though it falls short of fulfilling the requirements of the statute.</p> <p>5. BONDS AND CONTRACTS: Action on: Who May Maintain. To enable third persons not named in a bond or contract to sue thereon it must appear by the terms of the contract or bond that they are of the class covered by the conditions of the bond.</p> <p>6. PUBLIC OFFICERS: Neglect of Duty: Individual Liability. Where public officers are required by law to take a bond from contractors of public buildings for the protection of laborers and materialmen, a failure to take a bond good as a statutory or common law bond renders such officers individually liable in damages, the taking of such bond being a ministerial act.</p> <p>7. BONDS AND CONTRACTS: School Buildings: Duty of Trustees to Require Bond of Contractor: Failure: Liability. Action by material-man against school directors for failure to require from the contractor doing certain work a proper and sufficient bond conditioned for payment of material used as required by sec. 1247, R. S. 1909— amended Laws 1911, p. 106. The bond which the contractor executed is examined and deemed not, to comply with the statutory requirements. Held, also, that the bond was not available as a common law obligation on which the materialman might sue and as tbe taking of the bond was a ministerial act the school trustees were liable for failure to demand bond in accordance with the statute.</p> <p>8. -: School Buildings: Failure of School Directors to Require Bond of Contractor: Liable, When. The trustees of a school district did not require a contractor in the construction of a school building a bond complying with statutory requirements and the bond which they did require was not good as a common law obligation. The act required of the trustees by the statute was ministerial and the trustees cannot escape individual liability on the ground that the drafting, preparation and wording of the bond was judicial.</p>

<p>Appeal from Jasper County Circuit Court, Division Number Two. — Ho??.. David E. Blair, Judge.</p>

<p>1. MUTUAL BENEFIT INSURANCE SOCIETIES: Waiver of Laws by Officers: Statutory Powers to Prevent. A mutual benefit society may by its constitution and by-laws under our statutes provide that none of its subordinate bodies nor its officers or members thereof shall have power or authority to waive any of the provisions of the laws and constitution of the society. (Laws 1911, p. 292, sec. 22.)</p> <p>2. PRINCIPAL AND AGENT: What Law Governs Question of Agency. The courts of every State and jurisdiction, either with or without the aid of some statute, deal with the question of agency under the general law and each court decides for its own jurisdiction what facts constitute one person the agent of another and the extent and limitations of the agents powers.</p> <p>3. MUTUAL BENEFIT INSURANCE SOCIETIES: Waivers: Provision Against by Constitution: Applicable to Foreign Corporations. The statutory provisions (Laws 1911, p. 292, sec. 22) permitting mutual benefit societies to prohibit waivers by a subordinate lodge or its officers govern in actions brought in this State against foreign corporations regardless of the fact that the State where such foreign corporation was created recognizes such waivers.</p> <p>4. INSTRUCTIONS: Mutual Benefit Societies: Insurance: Waiver: Forfeiture. In an action against a mutual benefit fraternal society the jury was instructed that if the society accepted overdue premiums and retained them after knowing of the bad health of the insured, such retention was a waiver of the forfeiture provision. The instruction was erroneous because it did not limit such action to the national council and its officers instead of the local organization.</p> <p>5. MUTUAL BENEFIT SOCIETIES: Insurance: By-law Provisions: Constructions. Defendant mutual benefit society had a by-law providing that the retaining of an assessment should not waive any by-law provision until demand had been made for the return of the premium. Such provision only authorized retaining such payment during sufficient time for a reasonable investigation of facts.</p> <p>6. -: -: Forfeiture: Waiver by Retaining Payment. Where the governing body of a mutual benefit society retained an assess- • ment for several months and did not offer to return same, with full knowledge of the facts all the while, it thereby waived a provision forfeiting policies for failure to pay assessments promptly.</p> <p>7. INSURANCE: Mutual Benefit Societies: Waiver as to By-law Provision. When a waiver is once made by a mutual benefit society as to provisions in its by-laws such waiver cannot be recalled.</p>

<p>1. BILLS AND NOTES: Principal and Surety: When Surety Released by Act of Creditor. Where a creditor gives a surety to understand that he will look to the principal debtor alone for payment, thereby causing the surety to forego taking security to protect himself and loss results to him, the surety is released.</p> <p>2. ESTOPPEL: Applicable to Accommodation Makers and Indorsers of Note. The doctrine and principles of estoppel apply to release signers of a note whether they are, under the Negotiable Instrutruments Law, accomodation makers or indorsers.</p> <p>3. BILLS AND NOTES: Release of Sureties: Authority of Bank Cashier. A bank cashier has no authority to release a surety on a note by mere contract or promise, but such bank may be estopped to collect from such surety by reason of the acts and representations of its cashier made in line of his duty.</p> <p>4. BANKS AND BANKING: Bank Estopped by Cashier’s Statements. The cashier of a bank represented to sureties on a note who intended to take steps to secure themselves, that such steps were not necessary as the bank had taken a mortgage amply sufficient to secure all parties. The bank was estopped by the cashier’s statements.</p> <p>5. BILLS AND NOTES: Principal and Surety: Surety Released: To What Extent. Where sureties on a note were released from liability to a bank because of statements of the cashier which caused them to refrain from taking securities to protect themselves, they were released only to the' extent to which they were damaged by being caused to refrain from taking security such as they could have obtained from the principal debtor. • •</p> <p>6. -:--: Release of Surety: To What Extent. The cashier of a bank represented to sureties on a note which it held that the bank had taken a mortgage which amply secured the notes. The mortgage was not enforced against all the property covered by it and the proceeds were not applied in payment of the debts secured. The securities were released to the extent of their loss occasioned thereby.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.</p>

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

<p>FIRE INSURANCE: Notice of Foreclosure of Deed of Trust. The' provision of a fire insurance policy that the policy shall become void “if with the knowledge of the insured foreclosure proceedings be commenced, or notice given of the sale of any property covered by this policy by virtue of any mortgage, or deed of trust,” does not apply where notice of foreclosure was published before the issuance of the policy.</p>

<p>1. TAXBILLS: Street Railways: Street Pavement: Abutting Property. The property of a street railway company on. which is located car barns and shops and connected with the tracks on the street by numerous switch tracks, is liable for its proportion of the entire cost of paving the street on which said property abuts, notwithstanding no paving was done on that part of the street where the switch tracks were laid to connect the railway in the street with the car barn and shop, the street railway having paved that part under the requirements of its franchise, the opposite side of the street, however, being paved under a public improvement ordinance covering several blocks and for the payment of which tax bills sued upon herein were issued.</p> <p>2. -: Franchise: Street Paving. Where a street railway has, under the requirements of its franchise, paved a street in front of premises owned by it, abutting on said street, it is not relieved of liability for its share of the cost of paving the entire street, notwithstanding the contractor to whom the tax bills were issued did no paving in front of the property of the street railway except on the opposite side of said street.</p> <p>3. -: Charter of Kansas City. The Charter of Kansas City does not recognize any longitudinal line dividing a street and making the property on one side of the street bear the burden of paving up to such a line, and the property on the other side bear a like burden upon its side. All property is benefited alike in an improved district and all should bear proportionately the cost of the improvement.</p> <p>4. -: Abutting Property: Proportionate Cost. Because the amount of paving done in front of some of the property abutting on a street is less than in front of other property does not relieve it of the burden of its proportionate amount of the cost of the entire work.</p>

<p>1. CREDITORS BILL: Equity: Judgments: Subrogation. Plaintiff obtained a judgment against defendant Lee Smith,.and an execution issued thereon was returned nulla Iona. Thereupon plaintiff brought a creditor’s bill seeking to subject land owned by defendants as tenants in common to the payment of the judgment, a past due note secured by a deed of trust on said land having been paid by said Lee Smith. Held, that plaintiff had a right to go into a court of equity to reach the interest of Lee Smith in the land and to have the latter’s lien thereon subjected to the payment of plaintiff’s judgment.</p> <p>2. -: -: Payment by One Debtor: Burden of Proof. "When a debtor is compelled to pay in excess of his due proportion of a debt, there is an implied obligation, ex contractu that his co-debtors will pay their proportionate amount and the burden is upon the co-debtors to prove that they have discharged this obligation.</p> <p>3. -: Adequate Remedy at Law. The right of a judgment creditor to reach the lien of the judgment debtor on the interest in land of his co-tenants created by reason of said judgment debtor having paid more than his„ share of a note secured by a deed of trust on said land, is a substantial and valuable one and one that could not be established by a court of law, and the fact that the judgment creditor might have run garnishments against said co-tenants does not give him a complete and adequate remedy at law, for the reason that, while their rights in the land might be reached under judgments against them as garnishees, the rights of the judgment creditor would be subjected to any prior liens and all exemptions.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Daniel E. Bird, Judge.</p>

<p>1. FALSE IMPRISONMENT: Bogus Checks: Evidence. A woman of mature years, with a knowledge of the world, met a strange man on a street corner in a city and permitted him to court her within twenty minutes. She shortly married him without inquiry as to where he lived or stayed. He was a drunken vagabond, without money and issued bogus checks which were cashed on her vouching for them. On the second day after the marriage she went with him to a retail store where she made large purchases of clothing, he paying for them in different bogus checks. She put on the clothing but before getting out of the store it was discovered the checks were fraudulent. The storekeeper had them both arrested and imprisoned for a day when she was discharged but he sent to the, penitentiary. She brought suit for false imprisonment. It was held she did not make a case and a judgment in her behalf was reversed.</p> <p>2. -: Probable Cause: Allegation: Proof: Reasonabe Ground. If a plaintiff unnecessarily allege that a false imprisonment was without probable cause he must prove it; and if it appears at the trial that a reasonable and cautious man, in the circumstances, would have believed him guilty, the plaintiff fails.</p> <p>3. HUSBAND AND WIFE: Crime: Presumption: Rebuttal of Presumption. Though a wife is presumed to be so under the influence of her husband that she cannot commit a crime in his presence; yet this is a rebuttable presumption, and if the evidence shows that she took the lead and suggested and advised the criminal acts, the presumption is rebutted.</p>

<p>1. ATTORNEY’S LIEN: Removal of Action to Federal Court: Judgment: Action in State Court for Deforcement. A plaintiff was injured by a railroad company and employed an attorney on a contingent fee to bring an action against the company. He notified the company of his lien. Before suit was brought the injured party employed other attorneys who brought the suit in the' State court and it was removed to the Federal cojirt, where he obtained judgment, which the defendant paid to the Clerk, who afterwards paid it to the attorneys who brought the suit, and the judgment was satisfied. It was held, that the attorney could maintain a suit in a State court against the railway company for deforcement of his lien.</p> <p>2. -: Substantive Right: Federal Court: Notice: State Court. An attorney’s lien is a substantive right given him by a State law and he may enforce it in a Federal court where the judgment was rendered. Or, if judgment be rendered in the Federal court and paid by defendant, with notice of the lien, the attorney may maintain an independent action in a State court against the defendant for deforcement of his lien.</p>

<p>1. NEGLIGENCE: Joint Wrongdoers: Eelease of One: Covenant not to Sue. A release of one of several joint tort feasors discharges all; but a covenant not to sue one of several will not discharge the others.</p> <p>2. WRITTEN CONTRACT: Parol Evidence: Parties: Strangers. Though neither party can have parol evidence to vary the terms of a written contract, this rule does not apply to strangers or third parties.</p> <p>3. -: -: Stranger: Litigant: Parol Evidence: Both Parties. If a stranger to a written contract litigating with one of the parties to such contract, he may have parol evidence to show that it does not express the real agreement; and in such case the other litigant, though a party to the contract, may also have such evidence.</p> <p>4. MISTAKE OF LAW: Contract: Reform. Though ordinarily there is no relief against a mistake of law, yet if hy mutual mistake as to the legal effect of a written contract, it does not express the terms of the contract, it may be reformed so as to make it conform to the real contract made.</p>

<p>1. TELEPHONES: Care Required of Company Maintaining. A telephone company is required to use the highest degree .of care practical in making and keeping safe the use of its telephone apparatus but it is not an insurer.</p> <p>2. PLEADING: Sufficiency of Petition: Test. A petition is not always to be judged by the strict rules' of logic or absolute accuracy in its statements, but rather by whether it fairly informs the defendant of the issues to be tried.</p> <p>3. -: Petition: Sufficiency of: Not Same Test as for Instruction. An instruction imposing on defendant the duty of keeping its telephone equipment safe, instead of using the highest degree of care to that end would be erroneous, but a petition will not be held fatally defective on that account, especially after verdict.</p> <p>4. -: Surplusage in Petition: Immateriality. Where a statement in-a petition is merely a statement of law, it may be regarded as surplusage and hence its accuracy is not material.</p> <p>5. TELEPHONES: Injury from Shock: Res Ipsa Loquitur. Where plaintiff answering a telephone call was injured by a shock when she took hold of the transmitter and receiver, the occurrence was so unusual and contrary to what might be expected under such circumstances as to show that there was something wrong with the instrumentalities solely under the control of the defendant telephone company and the doctrine of res ipsa loquitur would apply.</p> <p>6. PERSONAL INJURIES: Destructive Agencies: Care Required in Guarding. Because storms and floods and lightning are destructive it is necessary to use the highest degree of care and skill to guard against them in the use of instrumentalities made dangerous thereby.</p> <p>7. ELECTRICITY: Injuries from: Judicial Notice. The courts tako notice that static electricity or lightning is likely to get on and pass over wires carrying manufactured el._____„±ty.</p> <p>8. -: Duty of Electric Company to Safeguard Against Lightning. An electrical company whose wires enter a building is bound to anticipate that unless devices are installed to prevent, lightning may follow its wires into the building and result in personal injuries.</p> <p>9. -: Duty of Electric Company to Safeguard Against Lightning. If lightning is conducted to or into a building through the negligence of the owner of the wires entering such building failing to use preventive devices, the owner may be liable; though the lightning may be considered an act of God the carrying of it into the building by wires may be considered an act of the owner of such wires.</p> <p>10. -: -: Presumption in Case of Injuries. The dangerous character of electricity is generally known but the means by which it is minimized are known only to those who have special knowledge and skill. Those who engage in the business of serving the public with telephones must be held to possess and employ, the requisite knowledge to protect its patrons so far as practicable from dangers incident to the business. And this is true whether such dangers arise from the currents employed by them or such as may be reasonably expected to get on the wires from other sources.</p> <p>11. PERSONAL INJURIES: Negligence: Accident Extraordinary: Res Ipsa Loquitur. In case of personal injuries where the,thing causing such injury is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, the doctrine of res ipsa loquitur applies.</p> <p>12. TELEGRAPHS AND TELEPHONES: Injury from Shock: Negligence: Jury Question. Whether or not a telephone company discharged the burden of proving lack of negligence causing injuries to one who was using a telephone operated by defendant company was a question for the jury.</p> <p>13. -: Negligence: Res Ipsa Loquitur: Burden of Proof. Action against a telephone company on account of personal injuries occasioned by * a shock received while properly using a telephone installed by defendant company.' The burden of proving that the presence of excessive electricity which caused the injury was not due to negligence of the company in failing to use the highest degree of care practical rested on such company.</p>

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

<p>1. TJNLAWTJL DETAINER: Justice Courts: Appeal: Jurisdiction. In an unlawful detainer suit the justice court has exclusive original jurisdiction and unless an appeal therefrom is applied for within the time allowed hy statute, no jurisdiction over that case is acquired by the circuit court. Nor, in such case, will the appearance in the circuit court of the opposite party confer jurisdiction.</p> <p>2. -: -: -: -: Evidence: Term of Court; Judicial Notice. If the judgment of the justice in an unlawful detainer suit be rendered during the term of the circuit court, the appeal is returnable within six days after rendition of judgment; and no appeal can be allowed unless the same be applied for and an affidavit and recognizance filed with the justice before the return day of the appeal. If the judgment of the justice be rendered during the vacation of the circuit court the first day of the next term is the return day. The court of appeals can take judicial notice of the beginning of a term of the circuit court but not of the end.</p> <p>3. -: -: -: -: -: -: -: Judgment: Collateral Attack. Where the power of the circuit court to pass upon a particular case rests solely upon a matter in pais, its judgment is not open to collateral attack but is valid until it is reversed by appeal or writ of error or is annulled by other direct attack. The action at bar being a suit to set aside a judgment of the circuit court rendered at a former term, cannot be sustained on the ground that the appeal from the justice was not taken in time, as the circuit court tried the ease as if a fact existed which made the appeal properly and timely taken, and there is nothing on the face of the record to show to the contrary. In such case it will be presumed that the court found that such fact or matter in pais existed. If the court erred in such finding, the remedy to correct that error is the same as when other erroneous decisions are made.</p> <p>4. -:-:-: Judgment: Petition for Review: Verification. An action in the circuit court to set aside a judgment rendered at a former term cannot be treated as a petition for review as the petition was not verified.</p> <p>5. -:-: -:-: Vacation: Coram Nobis. A writ of error coram nobis is to bring the court’s attention to, and obtain relief from, an error as to a fact which, without negligence of the one asking for the writ, was not shown and established at the time of the trial, and will not lie to correct an error of fact he knew or should have known; and so will not lie at instance of one who took appeal from a justice to the circuit court where judgment was rendered against him, to vacate such judgment on the ground that by rfeason of an extraneous fact the appeal was not in time. •</p> <p>6. -: -: -: -: -- — : -: -: Appeal and Error: Review. While a writ of error coram nobis will lie to open up a judgment on the ground that it was rendered against a minor, yet as the question of whether the defendant was a minor was presented and evidence pro and con heard thereon, and no findings of fact or declarations of law were asked, or given, the judgment of the trial .court, in the absence of any showing to the contrary, is presumed to be based on the fact that the trial court in this action found that appellant was not a minor at tho time the judgment was rendered.</p>

<p>1. MECHANIC’S LIENS: Transfer of Property: Notice. B. while owner of the real estate contracted with a materialman for all the materials required for a residence thereon, and, in the midst of the construction thereof, conveyed the property to another. Held, that this did not affect the materialman’s right to a lien as an original contractor even though most of the materials were delivered and built into the property after such transfer. ,, The contract with the owner having been made and the delivery of the materials having commenced while B. was such owner, the materialman was not bound to take notice of any subsequent conveyance of the property.</p> <p>2. -: Materials: Lienahle Items: Laundry Posts. Where a contract provided for the furnishing of all the materials required for the construction of a residence, an item for lumber used in constructing laundry posts in the yard constitutes a lienahle item, as the improvements were for the purpose of transforming the lot into a residence, the posts were a part of those improvement, and, with the house and all other appurtenances permanently erected on the lot, formed one complete and entire affair, purchased under the same contract, and the whole formed one general improvement of the property.</p> <p>3. -: -: Contract. Where a contract between an owner of property and a materialman provided that the materialman is to furnish the owner all the materials he requires for the improvement of the property, the materialman is hound to deliver all that the owner orders.</p>

Louis City Circuit Court. — Hon• Eugene McQuillan, Judge. . (1) The reply does not state facts sufficient to constitute an avoidance of, or defense to, the covenant not to sue which is set up in the answer, and the trial court erred in refusing to sustain objection to the introduction of any evidence in the case and in refusing to direct a verdict for the defendant. Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388.

Louis City Circuit Court. — Hon. Leo A. Rassieur, - Judge. (1) A tenant in possession of a building has the exclusive right to use the outside walls for advertising purposes, and to permit others to use them, if not prohibited by the terms of the tenancy. Fuller & Bagley 'v. Rose, 110 Mo. App, 344, 347; O’Neill v. Manget, 44 Mo. App. 279; Lowell v. Strahan, 145 Mass. 9; Riddle v. Littlefield, 53 N. H. 503, 509; Salinger v. North Amer.

Louis City Circuit Court. — Eon. Eugene McQuillan, Judge. (1) Counterclaims connected with, the subject of the action are permissible in replevin suits. McCormick Harvester Co. v. Hill, 104 Mo. App. 544; Ely v. Sutton, 177 Mo. App. 546, 556. (2) Damages arising in connection with the subject-matter maybe set off in a replevin suit against the debt claimed by the defendant as a lien upon the property replevined. Close v. Hurst, 151 Mo. App. 75.

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) The writing offered in evidence was not a contract, and was not binding upon the appellants, because it was not signed by Allen S. Cahn, an essential party thereto. 32 Cyc. 45, 46; 9 Cyc. 282; Muehlbach v. Railroad, 166 Mo. App. 1. e. 310, 311; Stub v. Grimes, 38 Minn. 318, 1. c. 319-320; Arnold v. Scharbauer, 116 Fed. 492; Graham v. Caperton, 57 Southern 741; Bruch v. Shafer, 45 Pa. Supt. Ct.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) The motion of defendant, St. Louis Wholesale Grocer Company, for a new trial on the ground that the second count of plaintiff’s petition does not state facts sufficient to constitute a cause of action, should have been sustained. New York & New Haven Railroad Co. v. Ketchum, 27 Conn. 179; 10 Cyc. 265; Thompson on Corporations (2 Ed.), sec. 88; Cushion Heel Shoe Co. v. Hartt, 103 N. E. (Sup.

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) A demurrer to the evidence admits as true every inference that may be reasonably deduced therefrom inference that may be reasonably deduced therefrom. Strauchon v. Street Railway Co., 232 Mo. 587, 595. (2) The case should have been submitted to the jury.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. First. Tenancy by tbe entirety applies to personal property in tbe State of Missouri. Johnson v. Johnson, 173 Mo. 91, 113; Ryan v. Ford, 151 Mo. Held: to be bolding as trustee for him, and for an accounting of tbe rents and profits that have been collected by tbe wife under said leasehold.

<p>1. INNKEEPERS: Liability for Loss by Fire: Indiana Statute: Construction. An Act of the State of Indiana (Acts 1907, ch. 88), entitled “An Act defining and limiting the liability of hotels in respect to the effects of guests and providing for the disposal of unclaimed goods left in hotels,” fixes in’ section 1 (Burns’ Ann. St. Ind. 1908, Sec. 7844) the liability of hotel proprietors for the loss of money, jewels and other valuables of a guest by theft. A subsequent section (Sec. 7845) declares that no hotel keeper shall be liable.for loss of wearing apparel, goods, or merchandise for any sum exceeding the sum of $200, where it shall appear that such loss occurred without the fault or negligence of such hotel keeper, nor shall he be liable in any sum for the loss of any article belonging to such guests and not within the room assigned to him, unless it shall be specially entrusted to the care and custody of such hotel keeper. Under the common law of Indiana, innkeepers were not liable for losses resulting from accidental fires occurring without negligence. Held, that the latter section is intended to cover loss by theft, and not loss by fire.</p> <p>2. -: -: Loss Occurring in Another State: Laws Governing. An action in this State against an innkeeper, for destruction of a guest’s baggage by fire while in a hotel in another State, is governed by the laws of such other State.</p> <p>3. -: -: Common Law of Indiana. Under the common law of Indiana, an innkeeper is not an insurer of a guest’s goods, but is prima facie liable for loss or damage thereto not occasioned by the act of God, the public enemy, or by the fault of the guest; and proof of the destruction of a guest’s property by fire makes out only a prima facie case of liability on the part of the innkeeper, which may be rebutted by proof that the loss was not occasioned by his fault or neglect or that of his servants.</p> <p>4. -:-: Common-law Rule: Weight of Authority. According to the weight of authority in this country, an innkeeper is not liable for the destruction of his guest’s property by accidental fire occurring without his negligence or the negligence of his servants.</p> <p>5. -:-:-: Exculpation: Sufficiency of Evidence. In an action against an innkeeper for destruction of a guest’s luggage by fire while in defendant’s hotel in the State of Indiana, where defendant adduced evidence tending to show that he was not guilty of negligence, he was not bound to further show the origin of the fire, in order to exculpate himself.-</p>

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge, (1) The provision in the contract between the appellant and the respondent reading “should the ‘continuance of building prove unprofitable in the opinion of said Reis, said Reis reserves the right to discontinue the building of any more houses on said land above mentioned and terminate this contract” did not, as a matter of law, give the respondent the right to cancel the contract in the face of the uncontradicted…