Volume 197 — Missouri Appeal Reports

Mandamus. Original Proceeding. (1) The power of a court of general jurisdiction to set aside its judgment during the same term on motion of either party, or on its own motion, must not he arbitrarily or oppressively exercised and is subject to, review by the appellate courts. Nelson v. Ghiselin, 17 Mo. App. 663, 666; Morris v. Morris, 60 Mo.

Louis City Circuit . Court. — Eon. William T. Jones, Judge. (1) Defendant’s demurrer to the evidence should have been sustained. Before one is entitled to recover in an action of fraud, he must show that false representations were made by defendant; that he knew them to he false when made, or they were made as of his knowledge when he had no such knowledge, and plaintiffs must have relied on the representations as made, and be misled to their detriment.

Louis City Circuit Court. — Hon. Geo. C. Hitchcock, Judge. (1) Where a party holds himself out as skilled in the treatment of an ailment, and undertakes to treat the ailment, he must use ordinary skill and knowledge required for the treatment of the ailment, and where he represents, an appliance as suitable for the treatment of an ailment, and it is unsuitable, he is liable if an injury results to a party who uses it in reliance on his representations and is injured because…

Louis City Circuit Court. — Hon. Eugene McQuillan, Judge. (1) The appellant- in this case having made out a complete case under the evidence and there being no evidence to the contrary, the court having sustained a motion for a new trial because the verdict was against the weight of the evidence, it is the duty of the appellate court to set aside the action of the trial court granting such new trial and to sustain the verdict of the jury.

Habeas Corpus. Original Proceeding, (1) The city has no power to levy a license tax in proportion to the gross receipts of a gas company. Const, of Mo., art. 10, • secs. 1, 4 and 5; Aft. 9, secs. 16-25; Art. 10, sec. 11; E. S. 1909, secs. 11384 and 11551; State v.' Eailroad Co., 196 Mo. 523; Cumberland Tel. Co. v. Hopldns, 90 S. W. 594; Eailroad v. Hoboken, 41 N. J. Law 79.

Louis' City Circuit Court. — Eon. William, M. Kinsey, Judge. (1) The judgment of the justice of the peace is for a sum in excess of the amount claimed and prayed for in the complaint; therefore the justice of the peace had no jurisdiction to render such' judgment. (2) Margaret Gr. Ryan, the plaintiff herein and the defendant in said case of Annie Hughes v. Margaret Gr.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) If a lien be lost by reason of tbe operation of law, although with the knowledge of the creditor and without his co-operation in any way, he must, nevertheless, be deemed responsible for the resulting damage to the surety. Miller v. Dyer, 1 Duv. (Ky.) 263; Lumsden v. Leonard,-55 Ga. 574; Fleming v. Odum, 59 Ga. 367; Wright v. Knepper, 1 Barr.

Louis City Circuit Court. — Eon. William M. Kinsey, Judge. The court erred in submitting the case to the jury, since the respondent failed to prove that the appellant was operating the car at the time he was attacked, and the respondent failed to prove that the conductor and motorman were in the employ of the appellant at the time. Reisenleiter v. Railroad, 155 Mo. App. 89; Muehlebach Brewing Co. v. Dunham, 177 S. W. 1067; Prisby v. Transit Co., 214 Mo. 567.

<p>1. LANDLORD AND TENANT: Cropper: Nature of Relation. The relation of landlord and tenant does not exist between • the owner of land and one who cultivates the land under an agreement to give the owner one-half the crop grown thereon, where such other party does not live thereon nor enjoy any right thereto for a fixed period nor have any estate or interest in the land itself or any possession thereof to the exclusion of the owner, and merely has the right to enter upon the land for the purposes of planting, cultivating and harvesting the crop; the possession of the land being in the owner, subject to the right of the cropper to go upon it for the purposes above mentioned.</p> <p>2. -: -: Division of Crop: Nature of Estate in Crop. The trend of judicial authority is, that a contract whereby one is allowed the use of land to cultivate, and the owner is to have a share of the produce for its use, will generally create a tenancy in common in the growing crop, whether the agreement operates as a lease or a mere cropping contract.</p> <p>3. --: -: Advances to Cropper: Right of Landlord to Reimbursement. Where a cropping contract provides that the landowner shall make advances to the cropper, necessary to enable him to carry out his undertaking, and that the title to the entire crop shall remain in the owner until he has been reimbursed for such advances, the right of the owner to reimbursement for such advances, out of the cropper’s share of the crop, cannot be defeated by a mortgage or other attempted disposition of such share.</p> <p>4. -: -: -: Chattel Mortgages: Recordation. Such an arrangement is not, in effect, a chattel mortgage, nor is it necessary that it be recorded in order to make it senior to subsequent mortgages, sales or attachments.</p> <p>5. -: -: -: -: -. Where the relation of landlord and tenant exists, and the landlord seeks by lease to retain a lien on specific property of the tenant, or upon the tenant’s portion of the crop, it is held that the lease in this respect operates as a chattel mortgage and must be recorded.</p> <p>6. CHATTEL MORTGAGES: Recordation. The filing of a chattel mortgage within a reasonable time is, by force of section 2861, R. ■ S. 1909, essential to its validity.</p> <p>7. -: -: Rights of Subsequent Creditors. Where a chattel mortgage is withheld from record, it is void as to a creditor who extends credit to the mortgagor after its execution and prior to its recordation, regardless of the fact that the creditor had actual knowledge of its existence.</p> <p>8. -: -: -. It is true that a general creditor has no right to seize the property of his debtor without legal process; but if he obtains peaceable possession thereof, he cannot be disturbed in that possession by a mortgagee whose mortgagee, as to such creditor, is void for failure to file it of record.</p> <p>9. CONTRACTS: Parol Contracts: Trial Practice: Question for Jury. Where a contract is oral, and there is a conflict in the testimony as to its nature, the question as to its character is for the jury.</p> <p>10. INSTRUCTIONS: Omissions: Cure by Other Instructions. An instruction which purports to cover the entire case, but leaves out of consideration elements essential to plaintiff’s recovery, is fatally defective, since an instruction which purports to cover the entire case cannot be pieced out by other instructions, despite the oft-stated rule that instructions must be read and considered together.</p> <p>11. JUSTICES’ COURTS: Appeal to Circuit Court: Form of Verdict and Judgment. Where a cause is tried on appeal in the circuit court, or other court in the county having jurisdiction on appeal from a justice of the peace, the verdict and judgment should conform to the statute governing judgments in actions of that character in the court wherein the cause is thus tried de novo.</p> <p>12. -L: -: Replevin: Form of Judgment. A judgment rendered by a court of common pleas, in an action of replevin appealed from a justice’s court, held to be erroneous because not in the form authorized by the statute relating to judgments by a -court of record in actions of replevin.</p>

— Hon. Edgar B. Woolf oik, Judge. . - • • ■ (1) The decision in the cas.e of Cross v. Gold, 131 Mo. 585, is decisive in favor of the plaintiff herein of the case at bar, and is in many respects on all fours with the case at bar. In that case, as in this, the. plaintiff’s attorney agreed to notify the defendant’s attorneys of the setting of the case and instead of doing so,. took judgment against the defendant.

—Eon. Robert G. Ranney, Judge. (1) The petition sought to foreclose a deed of trust, and was an equitable proceeding and treated as such by the trial court, a jury having been waived; and in such cases, where all the evidence is preserved in the record, the appellate courts will review the evidence and try the case de novo as far as practicable and render such decree as ought to be rendered under the law and the evidence.

— Hon. William T. Ragland, Judge. (1) The instruction in the nature of a demurrer to the evidence offered by the defendant at the close of all the evidence in the ease should have been given for the following reasons: (a) Section 20 of the Interstate Commerce Act provides that any person who shall wilfully make a false entry in any record or memoranda kept by an interstate carrier, or who .shall wilfully alter or falsify the record of any such record or memoranda, or ■ who…

Habeas Corpus. — Original Proceeding. (1) The probate court of the city of St. Louis is a court of general jurisdiction in probate matters and its judgments are final and binding in all matters, except in those cases wherein the law bas provided that appeals can be taken therefrom. (2) No appeal lies from a judgment of the probate court appointing a guardian of a minor. Looney v. Browning, 112 Mo. App. 195; Smith v. Young, 136 Mo.

Louis City Circuit Court. — Hon. Rhodes E. Cave,- Judge. ■ (1) The defendant’s demurrer to the evidence should have been given.

— Hon. James D. Barnett, Judge. (1) The court should have sustained the defendant’s objection to the introduction of any evidence under the petition because it failed to state facts sufficient to constitute a cause of action, in this: (a) The hare words set out in the petition, viz., “That about two years ago, etc., Mr. Garey resigned his position and opened up a rival store, taking with him a quantity of second hand books, ’ ’ without other facts by way of inducement or…

Francois Circuit Court. — lion. Peter H. Huck, Judge. The executions should have been set off against one another. Caldwell v. Ryan, 210 Mo. 28, 2;9, and 31; Secs. 1876, 2158 and 2156, 7527, R. S. 1909. (1) Sections 1875, 1876 and 1877, Revised Statutes of Missouri, expressly limit the power of the sheriff to only set off mutual judgments; that is, judgments between the same parties. Haseltine v. Thrasher, 65 Mo.

Louis City Circuit Court. — Ron., Wilson A. Taylor, Judge. Tlie court erred in giving instructions 3 and 4 for the defendant, (a) Said instructions conflict with instruction No. 1 given for plaintiff, by which the plaintiff was required to exercise ordinary care in boarding the car.

Circuit Court. — Ron. James D. Barnett, Judge. (1) The court erred in overruling defendant’s de-' murrer to the petition. The petition charges no facts constituting negligence on the part of defendant. It neither alleges that defendant knew or ought to have known that children would climb into the tree, but simply counts on the maintenance of the wires through the tree as negligence.

•Appeal from St. Louis County Circuit Court. — Eon. John W. McEThinney, Judge. (1) The demurrer to the evidence should have been sustained, (a) The plaintiff was left in charge of the men under him with power to direct and control them, and was a vice-principal. Miller v. Railroad, 109 Mo. 350; Hunt v. Lead Co., 104 Mo. App. 377; Browning v. Kasten, 107 Mo. App. 59. Defendant had a right to. and did delegate to plaintiff the power to call other employees to help him.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. A broker whose contract provides that, in order to earn his commission, he must within a given time secure a purchaser of the land at a price fixed, is not entitled to commission even though within the contract time he found a purchaser willing and able to buy at a reduced price and that fact was communicated to the owner, and even though the owner after the expiration of the contract time, closed with the purchaser…

Louis City Circuit Court. — Hon. George C. Hitchcock, Judge. (1) In an action by a third person against alleged partners, testimony showing participation in the profits of the alleged partnership, and that there was no written agreement of partnership, establishes a prima-faeie case that the defendants are partners. Goddard Peck Gro. Co. v. Berry, et al., 58 Mo. App. 665, 666; Willoughby v. Hildreth, Í82 Mo. App. 82, 91; Skinner v. Whitlaw, 184 Mo.

— Hon. James D. Barnett, Judge. (1) The-court erred in permitting the introduction of testimony at the beginning of the trial as the petition does not state a cause of action. The words alleged are not actionable per se and no matter of inducement was pleaded • to make them so. Crystal v. Craig,' 80 Mo. 373; Moore v. Johnson (Ky.), 144 S. W. 765, 1.- c. 767, 768; Townsend on Libel & Slander, sec. 308; Vanloon v. Vanloon, 159 Mo. App. 255; Boyce v. Wheeler, 161 Mo. App. 506.

Louis Count y Circuit Court. — Eon. John W. McElhinney, Judge. (1) Defendant’s motion to strike out part of the reply should have been sustained. It was not proper to permit plaintiff to plead an equitable title in her reply when she alleged in her petition that she was the legal owner. A plaintiff must recover, if at all, upon the cause of action stated in the petition, and not upon one stated in the reply.

— Hon. R, A,. Bruer, Judge. The facts in this case' bring it clearly within the law as declared by the Supreme Court in the case of Missouri Central • Building -and Loan Association v. John B. Eveler, 237 Mo. 679. And we think that decision is decisive of this case.

.Louis City Circuit Court. — Eon. William T. Jones, Judge. (T) The Vigilant Watch Ordinance and the speed ordinance of the city of St. Louis is declaratory of the municipality’s approval of the humanitarian or last chance doctrine. Thompson v. Livery Company, 214 Mo. 487; Martin v. United Railways Co., 186 Mo. App. 576; Kaiser v. United Railways Co., 155 Mo. App. 428; White v. Railroad, 202 Mo. 539.

Louis City Circuit Court. — lion. James E. Withrow, Judge. (1) The petition did not state a cause of action, and the objection of the defendants to the introduction of evidence should have -been sustained. There is no allegation in the petition that plaintiffs performed their part of the contract sued on. 31 Cyc, page 107; 9 Cyc, 719; Bayse v. Ambrose, 32 Mo. 481; Beckman v. Ins. Co., 49 Mo. App. 604.

Genevieve Circuit Court. — Hon. Peter H. Huck, Judge. (1) Under the law of Missouri, as it has been written from the very first utterance of our Supreme Court down to the present time, the possession of plaintiff was such possession as' the law will recognize and protect.

Louis City Circuit Court. — Hon. William T. Jones, Judge. (1) The rule is of long standing and elementary that in the interpretation of a contract, its words must be taken in their common, ordinary and usual sense, and when they are free from ambiguity and uncertainty, there is no room for construction. The courts cannot make contracts for parties and can only interpret and enforce such agreements as the parties have seen fit to make. Frye v. Shepherd, 173 Mo.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The restriction of the building line involved in this case was expressly declared, not only by the recorded plat, but also by the express reservation in the deed to defendant: “All subject to the restrictions and conditions now governing said property.” King v. Union Trust Co., 226 Mo. 351; Lindsay v. Smith, 178 Mo. App. 193, 166 S. W. 820; Hisey v. Eastminster Presbyterian Church, 130 Mo.

Louis City Circuit Court. — Eon. Kent K. Koerner, Judge. (1) The contract of employment provided for cancellation if employee’s services were not satisfactory to employer. In the absence of willful fraud the employer, appellant, had the absolute right to discharge employee, respondent, even though the dissatisfaction is capricious or unreasonable. Blaine v. Publishers George Knapp & Co., 140 Mo. 241; Williams v. K. C., S. B. Ry. Co., 85 Mo.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) Appellant was entitled to the issuance of the transfer requested hy him.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) An ordinary ladder which is used from place to place in the course of work and which has no prongs or hooks or other appliances to keep it from slipping, is not a dangerous appliance, but a very simple one and safe in the hands of an experienced man for such uses as ladders are usually applied.

Louis City Circuit Court. — Hon. Leo 8. Bassieur, Judge. (1) Where the evidence is as consistent with the absence as the existence of negligence, the case should not be submitted to the jury. Epperson v. Postal Tel. Co., 155 Mo. 346; Patton v. Railroad, 179 U. S. 658; Der laney v. Delaney, 206 Pa. St. 226; Farrell v. Kaze, 157 Mich. 374; Trapnell v. City, 76 Iowa, 749.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1)The court erred in permitting Ambrose to testify that the papers in Healy’s office were signed by Healy when he did not know Healy’s signature. (2) The court erred in refusing to permit the defendant to show that the books of plaintiff were so kept that the audit required by plaintiff’s statement, which was the basis of the bond, could not be made.

<p>1. APPELLATE PRACTICE: Conclusiveness of Findings. The finding, in an action at law tried by the court without a jury, is conclusive, on appeal, if there is substantial evidence to sustain it and the conclusion on the facts is sound in law.</p> <p>2. SPECIAL TAXBILLS: Assessment: Lots Shown on Unrecorded Plat. Although a plat of a subdivision, showing streets, lots and blocks, was never signed, acknowledged or filed, as required by sections 10290 to 10297, R. S. 1909, nevertheless a special taxbill for local improvements, levied against numbered lots shown on such plat, was not invalid on the ground there were no such lots and the assessment was, therefore, irregular, where the owner of the land in question knew about the unrecorded plat and, by his actions, recognized the land as being divided into lots, in accordance with, and numbered as shown on, such plat.</p> <p>3. -: -: -: Sufficiency of Evidence. In an action on such a special taxbill, evidence held to establish that defendant landowner knew about the unrecorded plat and, by his actions, recognized his land as being divided into lots, in accordance with, and numbered as shown on, such plat; and hence it is held that the assessment against such lots by their numbers as designated on such plat was correct.</p> <p>4. -: Charter of City of St. Louis: Construction of Special Statute of Limitations. The word “paid” in that part of section 25 of article 6 of the Charter of the city of St. Louis, providing that, where special taxbills are not paid in installments, the lien thereof shall terminate within two years after their date, should be read “payable,” making said provision read, “that where bills are not payable in installments, the lien shall terminate within two years after.their date;” following Fruin v. Meredith, 145 Mo. App., 586.</p>

Louis Circuit Court. — Hon. William M. Kinsey, Judge. (1) In an action upon a policy of accident insurance the burden is upon the beneficiary to prove that the death of the insured occurred under the circumstances, and was caused in the manner, provided by the policy. The facts must be established which bring the case within the terms and provisions of the policy sued on. Laessig v. T. P. A., 169 Mo. 272, 69 S. W. 469; Norman v. Commercial Travelers, 163 Mo.

Louis City Circuit Court. — Hon. Eugene McQuillan, Judge. ' (1) The demurrer to the evidence at the close of plaintiff’s ease, as also at the close of the entire case, should have been sustained because plaintiff failed to make out a prima-facie case on any of her theories of negligence, and the defense failed to aid the same. Winter v. Van Blarcom, 258 Mo. 418; Barnard v. Metropolitan St. Ry. Co., 13'7 Mo. App. 684; Curley v. Baldwin (R. I.), 90 Atl. 1; Grout v. Electric Ry.

<p>1. APPELLATE PRACTICE: Review: Demurrer to Evidence. On appeal from a judgment for defendant, upon a demurrer to the evidence being- sustained, the appellate court must view the evidence in the light most favorable to plaintiff and give him the benefit of every inference which a jury might fairly and reasonably draw from the facts and evidence, to determine whether plaintiff made a prima-facie case.</p> <p>2. BILLS AND NOTES: Payment: Tolling Statute of Limitations: Sufficiency of Evidence. In an action on a promissory note executed by defendants jointly, defended by one of the defendants on the ground that it was barred by the Statute of Limitations, JieM that an endorsement on the, back of the'note, showing á payment thereon within the limitation period, so as to toll the statute, together with evidence by an attorney who presented the note for collection, that such defendant said that the deceased payee had told hiin that the other defendant had made the payment, and that such defendant made no objection at that time to the endorsement on the back of the note showing such payment, but, on the contrary, admitted to the attorney' that he owed the note, and stated that he thought he would have to pay the same, was sufficient to require submission to the jury of the question whether or not such payment was made.</p> <p>3. STATUTE OF LIMITATIONS: Tolling Statute: Payment by Joint Obligor. A payment of part' of the debt by one of the joint or comakers of a promissory note tolls the Statute of Limitations against both makers.</p> <p>4. INTEREST: Compounding Interest Semi-annually. Section 7185, R. S. 1909, bears on the question of compounding interest on a promissory note payable six months after date and providing for “interest at the rate of eight per cent, per annum from date, and if interest is not’paid when due, to become as principal and bear the same rate of interest.”</p>

Louis County Circuit Court. — lion. John W. McElhinney,' Judgo.

— Hon. Edgar B. Woolfolh, Judge. (1) The court erred in overruling the demurrers to the plaintiff’s evidence and to all the evidence. There was no fraud and deceit shown. Edwards v. Noel, 88 Mo. App. 434; Dulaney v. Rogers, 64 Mo. 201; Rawlings v. Bean, 80 Mo. 614; Bank v. Hutton, 224 Mo. 42; Hines v. Boyce, 127 Mo. App. 718.

— Hon. B. A. Brcuer, Judge. (1) Where it is sought to subject another to liability and the family relation or relation of parent and child exists, “loose declarations made to others or even to the claimant . . . will not answer. That which may be only an expression of intention is inadequate for the purpose. ... It must have been the purpose of the deceased to assume a legal obligation, capable of being enforced.” Woods v. Land, 30 Mo. App. 176; Brock v. Cox, 38 Mo.

— Hon. G. A. Wurdemcm, Judge. The action of the plaintiff in beginning and prosecuting the suit against the Ozark Cooperage & Lumber Company, as the grantee of his alleged judgment debtor, in which he sought to follow the assets, amounted to an election between inconsistent remedies. Stokes v. Burns, 132 Mo. 226; Welsh v. Carder, 95 Mo. App. 45. This election was one which he could not subsequently withdraw or avoid. Bigelow, Estoppel (5 Ed.), 673.

— Hon. William T. Ragland, Judge. (1) The petition should be'construed against the pleader. Sexton v. Railroad Co., 98 Mo. App. 50; Malline v. Nemnich, 160 Mo. 388; Price v. Mining Co., 83 Mo. 470. (2) Every- fact that must be proven must be alleged. Pier v. Heinrichoffen, 52 Mo. 255; Lanitz v. King, 93 Mo. 513; Sidway v. Live Stock Co., 163 Mo. 342. (3) An assignee stands in the shoes of his assignor. Hip-well v. Surety Co., 105 N. W. (Ia.) 318; Broadwell v. Imms, 70 So.

— Hon. William T. Raglamd, Judge. (1) In construing the will the court shall have due regard to the true intent and meaning of the testatrix. R. S. 1909, sec. 583. (2) In construing the will, the relation of the testatrix to the beneficiaries, and the surrounding circumstances are to be considered in arriving at the intent of the testatrix. The courts are not confined to the four corners of the will.

<p>1. PLEADING: Right to File Amended Petition: Effect of Pendency of Demurrer. Under section 1852, R. S. 1909, plaintiff has the right to file an amended petition at any time before an answer is filed, notwithstanding a demurrer thereto is pending.</p> <p>2. -: -: “Answer” Defined. The word “answer,” as used in section 1759, R. S. 1909, providing that defendant must appear to answer the petition on the return day of the writ, refers to any form of pleading filed by defendant, but the word “answer,” as used in section 1852, providing that a petition or answer may be amended, etc., means the answer to the petition and does not include any other kind of pleading.</p> <p>3. -: Number of Answers and Replies. Under the Code, when the pleadings are made up, there can be only one answer and one reply.</p> <p>ON MOTION FOR REHEARING.</p> <p>4. PLEADING: Filing Amended Petition: Effect on Original Petition and Pending Demurrer. The filing of an amended petition is an abandonment of the original petition, and a demurrer to it dies with it.</p> <p>5. -:-:-: Statute Construed. Section 1826, R. S. 1909, providing that if a third petition be filed and adjudged insufficient, or the whole or some part thereof be stricken out, the party filing such pleading shall pay treble costs, and no further petition, answer, or reply shall be filed, but judgment shall he rendered, is” tó be strictly construed, and applies only where a third pleading has been adjudged insufficient on demurrer or motion to strike out; and hence the filing of an amended petition while a demurrer to the original petition is pending cannot be reckoned against the plaintiff upon any future attempt by defend- . ant to invoke the statute, since the abandonment of the original petition by the filing of the amended one is not an adjudication that the original one is insufficient.</p>

<p>INSURANCE: Household and Kitchen Furniture: Measure of Damage: Market Value. The measure of damage- on a fire insurance policy where household and kitchen furniture, including rugs, pictures, ornamental furniture and china, is destroyed or damaged is not what it would be worth in the market for second-hand furniture; but is what it would cost to replace or restore it to the owner. Such property is not a marketable commodity in the ordinary sense of the term, and will not be held to have been within the contemplation of the parties.</p>

<p>1. CARRIER: Consignor: Owner: Diversion: Conversion. If the carrier knows the shipper consignor is the owner of goods shipped, he is bound to obey the order of such consignor diverting the ship¡ment to some other consignee than the one named in the bill of lading; and if he fails to obey such order he is guilty of conversion.</p> <p>2; -: Consignor: ■ Owner: Delay: Damage: Liability. A consignor of a carload of chickens was the owner of them and known to be such by the carrier. He ordered the carrier to divert the car to another place on its line and deliver to a different consignee from the one named in the bill of lading. The carrier did so, but the last consignee refused to accept the car. The original consignee, having authority from plaintiff, but which was unknown to the carrier, then ordered the carrier to deliver to him as originally. directed in the bill of lading and the carrier refused. The consignor then ordered him to do so and he obeyed. Held, that defendant was not liable for damage" caused by the delay.</p> <p>3. -: -: Agreed Statement of Facts. An agreed statement of fac.ts is likened to a special verdict and it must contain every essential element, without doubt or ambiguity, to sustain the judgment.</p>

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

<p>1. LOCAL OPTION: Title to Liquor: Keeping and Delivery. Under the provisions of section 7227, R. S. 1909, there may be a conviction for the delivery or a keeping of intoxicating liquor where the facts also show a sale, and there may also be a conviction of keeping intoxicating liquor regardless of the question as to whose liquor it is.</p> <p>2. -:-: -. Where intoxicants are delivered from one person to another the title to the goods, prior to the delivery, was either in, or not in, the deliverer, and from the acts prohibited in the law, it will be seen that it matters not whom the title to the goods was rested.</p>

Louis.— Son. Leo 8. Rassieur, Judge. (1)Section 1821,3 Revised Statutes of Missouri, 1909: “An answer or replication may allege facts, which' have occurred since'the institution of the suit.” (2) In an action on a foreign judgment, defendant may show anything going to discharge him from the original judgment occurring since its rendition. Kratz v. Preston, 52 Mo. App. 251; Boynton v. Boynton, 176 Mo.

Louis— Hon. Kent. K. Koerner, Judge. (1) To recover against a corporation for personal injuries the plaintiff must allege and prove that the act causing the injury was committed by an agent or servant of the defendant in the scope of his employment and in the course of business. Snyder v. Railroad, 60 Mo. 143; Glassman v. Harry, .182 Mo. App. 304.

Louis.— Hon. Glendy B. Arnold, Judge. (1) Where a case is tried before the court without a jury, it is reversible error for tbp court to fail or refuse to rule on an objection made by a party to testimony either at the time or afterwards. Asbury v. Hicklin, 181 Mo. 658, 670; Seafield v. Bohne, 169 Mo. 537, 546; Stone v. Fry, 191 Mo. App. 607.

Louis.— Hon. George G. Hitchcock, Judge. (1) The plaintiff’s suit being on notes, and the answer not being verified, her causes of action were admitted, and there was no necesity of evidence on her part. 1 Rev. Stat. 1909, sec. 1985; Halts v. Railroad, 147 Mo. App. 262; Hart v. Harrison W. Co., 91 Mo. 414; Smith M. P. Co. v. Rembaugh, 21 Mo. App. 390; Johnson v. Woodmen of the World, 19 Mo. App. 98; Love v. Central L. Ins. Co., 92 Mo. App. 192; Mitchell v. Tinsley, 83 Mo.

Louis. —Hon. Thomas C. Hennings, Judge. (1) The judgment of the court of June 4, 1912, in the case of Thorpe et al. v. Young et al., was final. Konta v. St. Louis Stock Exchange, 150 Mo. App. 622. A judgment dissolving an injunction is final. (2) The right to assess damages on an injunction bond as against the surety does not arise until after final judgment in the original suit, and until a breach of the bond by the principal. Konta v. St. Louis Stock Exchange, 150 Mo.

Louis. —Ron. Eugene McQuillin Judge. (1) The court erred in its finding and decree in setting aside the judgments, (a) Because said judgments are valid and approved by the court where rendered. Butler v. Winchester Home, 104 N. E. (Mass.) 451. (b) Because there is an absence of any showing of fraud, (c) Because the finding and decree do not do equity. 21 Encyclopaedia of Pleading and Practice, pages 548-549; Eobinson v. Siple, 129 Mo. 220-221; Shuee v. Shuee, 100 Ind. 481.

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

<p>TAX BILLS: Period of Lien: Suits to Enforce. Actions to enforce tbe lien of tax bills issued under tbe statutes relating to cities of tbe third class must be commenced witbin five years and where such an action was commenced witbin such time, but afterwards dismissed for.want of prosecution and thereafter, witbin one year, another action was instituted, which was more than five years after the issuance of the tax bills, the latter action cannot he maintained, as the statute (Laws of 1911, page 337) providing for the lien of such tax bills carries its own period of limitation and is not governed by the provisions of section 1900, R. S. 1909.</p>

<p>Appeal from Buchanan Circuit Court. — Hon. William H. TJtz. .Judge.</p>

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

<p>1. CORPORATION: Brokerage Corporation: Building Subscription: Ultra Vires. A corporation chartered to carry on a general brokage business, has not the power to make a binding contract of subscription to aid in the erection of a theatre building, even though the building is built. The contract is ultra vires.</p> <p>2. -: Corporate Powers: Law of Organization: Business: Restrictions. Corporate existence, power to transact business and incur obligations come from a grant by the State. The statute law of Missouri requires that when the corporate name is that of a firm or company the business must be named followed by the word, "company,” or “corporation,” with the purpose for which it is formed, and that no business shall be transacted except that named, or such as is necessarily implied in order to carry out its functions.</p> <p>3. -: Ultra Vires: Statute of Frauds: Part Performance. The rule applied in cases arising under the Statute of Frauds that performance by one party will remove the statute cannot be applied to cases involving ultra vires.</p> <p>4. -: Contract: Implied: Charter. The contract of a corporation is ultra vires unless it is expressly authorized, or is necessarily implied in order to carry out or advance the business of the corporation as stated in its charter.</p> <p>5. -: Repudiated Contract: Restoration. A corporation which has received money or property by reason of a contract which it repudiated on the ground of ultra vires, may be compelled in some other action to make restoration to the other party.</p> <p>6. -: Charter: Missouri Statute: Federal Cases. The statute of Missouri forbids a corporation to make a contract that is not expressly authorized by its charter, thus practically harmonizing our law with that announced in federal and other cases.</p> <p>7. -: Contract: Foreign to Business: Excess of Power: Estoppel, A contract of a corporation which is foreign to its chartered business is void and cannot be ratified, nor can estoppel follow. But if the contract is in line of its chartered business though its power is exceeded in making the contract of some illegality or irregularity it may be ratified, or there may be estoppel.</p>

<p>1. NEGLIGENCE: Customer: Elevator Shaft: Twilight. Where a party injured was acquainted with the location of the elevator in a business house in which he had entered as a customer of one of the joint occupants and knowing that it had no gate or guard, went to the place where the elevator was, it being located where it was neither clearly light nor dark, but was in a deceptive state between the two, as in twilight, seeing the open shaft and it having the appearance to him of the elevator floor, stepped into the empty space and fell to the floor below; it was held that the question of his being guilty of contributory negligence was for the jury.</p> <p>2. -: -: Invitee: Joint Occupant: Elevator Shaft. Where one who kept for sale implements, and their different parts, had them in a building which he held in joint occupancy with another by leasing from the other; it was held that a customer was an invitee of such-person, and that such person was liable to tho customer for an injury received by stepping into an unguarded elevator shaft.</p> <p>3. CIRCUIT JUDGE: Vacancy: Appointment: Term. Under section 3896, R. S. 1909, the appointment by the Governor of a judge of the circuit court cannot be for a longer period than the following general election and such appointee’s term then ends.</p> <p>4. -: Failure to Qualify: Oath of Office. Where a judge of the circuit court was appointed until the next general election, to fill a vacancy and he is elected for the balance of the term in which the vacancy occurred, his failure to qualify by taking the oath required by the Constitution (Art. 14, Sec. 6) will not invalidate any official action taken by him which was had without objection.</p> <p>5. -: Oath of Office: Necessity for: Title. While the failure to qualify by taking the oath of office might be sufficient cause to prevent him from discharging the duties of the officer, or from receiving its emoluments; yet such oath is not a necessary prerequisite to the validity of his official acts. It is a mere incident and no part of the title to the office itself.</p>

<p>Appeal from Randolph Circuit Court. — Eon. A. E. Waller, Judge.</p>

1. — Hon. Jos. D. Perhins, Judge. “This secret trust, whereby, the use and control of one-half the land conveyed was to be exercised by the said Dunning as if he had never conveyed it, is evincive of legal, if not actual fraud on the part of all concerned.” Donovan v. Dunning, 69 Mo. 1. c. 442. Kahmke v: Weber, 187 Mo.

<p>1. APPEAL AND ERROR: Harmless Error: Modification of Requested Instruction. Where a requested instruction modified and given, although possibly erroneous, could not have affected the verdict or amount of damages, it was not reversible error.</p> <p>2. TRIAL: Effect of Evidence.- Where a locomotive fireman testified that his engine was near a crossing when he saw cars ahead which caused collision, estimating distance at six hundred feet, and later testified to its correct distance of four hundred feet, his former testimony will not be binding upon him, as making him contributorily negligent in not warning the engineer when the train could have been stopped within six hundred feet.</p> <p>3. MASTER AND SERVANT: Railway Collision: Injury to Fireman: Contributory Negligence: Jury Question. That fireman saw oil cars a half of a mile around a curve where there was a double track and had no reason to think that the cars were on his track his train having the right of way, was not such notice of danger as to prevent him from attending to regular duties which kept him from watching the road, instead of warning the engineer, so as to constitute contributory negligence per se, and it was a question for tbe jury whether, after attending to his regular duties, his failure to warn the engineer in sufficient time to stop the train constituted contributory negligence.</p> <p>4. DAMAGES: Personal Injury: Excessive Verdict. A verdict for $6500 held not so excessive as to require reversal where fireman’s injuries from collision reduced earning capacity from $125 a month with a chance of advancement to $50 per month, although physicians were not agreed as to the extent and permanency of his injuries.</p> <p>5. MASTER AND SERVANT: Railway Collision: Question for Jury: Extent of Injury. The question of fireman’s injuries from collission and whether he was simulating symptoms was for the jury in view of the conflicting evidence.</p> <p>6. APPEAL AND ERROR: Review: Excessive Verdict: Conflicting Evidence. Where evidence was conflicting as to extent and permanency of fireman’s injury from collision, the appellate court will not disturb the verdict where not clearly excessive.</p>