Volume 198 — Missouri Appeal Reports

Christian Circuit Oourt. — Hon. John T. Moore, Judge. The court erred in admitting evidence as to the condition of the City Prison long after the discharge of the plaintiff therefrom, for it • is too remote to shed any light upon the condition of the prison at the time plaintiff was in it, and could only tend to confuse the issues in the minds of the jury, to the prejudice of the defendants.

Sterling H. McCarty,- Judge. The evidence in this case clearly fails to show a co-partnership formed between plaintiff and defendant, therefore, this action cannot be maintained, even did the petition state facts sufficient' to warrant the appointment of the receiver by the court. A. Graff Distilling Co. v. Wilson, 172 Mo. App. 612; Miller v. Peppeling, 185 Mo. App. 22; Spurlock v. Wilson, 160 Mo. App. 14; Willoughby v. Hildreth, 182 Mo.

— Row. Sterling R. McCarty, Judge. And such testimony as that above set out is merely opinions and conclusions and inadmissible.' Esebank v. Cy., 88 Mo. 650; Southern Iron Co. v. Smith, 257 Mo. App. 226; Dammann v., Cy., 152 Mo. 186; Fair Grieve v. Cy., 29 Mo. App 141; Walton v. Railroad, 40 Mo. App. 544.

— How. J. P. Foard, Judge. (1) The doctrine of comparative negligence does not obtain in Missouri. Hogan v. Citizens Ry. Co., 150 Mo. 36; Moore v. Lindell Ry. Co., 176 Mo. 528; Keele v. Railway Co., 258 Mo. 62. (2) Accordingly, from one negligent act only one right of action arises based upon the negligence. Coy v. Railroad, 186 Mo. App. 408 (and cases there cited); Stickford v. St. Louis, 7 Mo. App. 217, affirmed in 75 Mo. 309; lyheeler Svgs.

— Hon. D. E. Blair, Judge. The plaintiff had a single cause of action against the defendant, Yoder, for unpaid stock subscription to the Stag Mining Company. She chose to commence her action upon a part of this claim and to prosecute it to a final judgment after she had knowledge that the defendant was the owner of other stock upon which he would have been liable for unpaid stock subscription if he were liable upon his original subscription.

— Hon. Sterling H. McCarty, Judge. Cities of the fourth class are given authority by statute to regulate or prohibit the running at large of stock, by ordinance, and to cause such as may be running at large to be impounded, to provide for the erection of all needful pounds, within or without the city limits, and appoint and compensate keepers thereof and establish and enforce rules governing the same. Section 9374, E. S. 1909; Evans v. Holman, 202 Mo. 295-296.

Louis. — Hon. Kent K. Koerner, Judge. (1) A party who furnishes work- and materials for altering, repairing or improving a building under contract with a party holding a leasehold or licensed interest in the property is entitled to a lien on the materials furnished and on the building and on the leasehold or licensed interest. Section 8216, R. S. as amended by the Session Acts of 1911, page 312.

Louis. —Hon. Kent G. Koerner, Judge. (1) Part A. The burden of proof is the duty resting upon the party who asserts the affirmative of an issue to prove the same by a preponderance of the evidence. Ranney v. Lewis, 182 Mo. App. 58, 64, 167 S. W. 601; Glover v. Henderson, 120 Mo. 367, 381, 35 S. W. 175, 41 Am. St. Rep. 695; Bathe v. Insurance Co., 152 Mo. App. 87, 94, 132 S. W. 743.

Louis. — Ron. Rhodes E. Gave, Judge. (1) The petition herein fails to state facts sufficient to constitute a cause of action. State ex rel. Hamilton v. May, 177 Mo. App. 717. (2) The court should have given defendants’ instruction at the close of the entire case, that under the pleadings and proof plaintiff could not recover. (3) The court erred in refusing to give defendants’ instructions.

<p>1. NEGLIGENCE: Stock Killed on Track:-Pleading: Common Law and Statutory Negligence. Where there are two causes of action embraced in one count for the killing of a cow on a railroad track, one for negligently failing to maintain a proper and reasonably safe cattleguard as required by the statute and one at Common Law charging that the cow strayed upon the railroad track where it was not fenced and the railway employees negligently and carelessly ran over said cow and the evidence is sufficient to support the verdict of the jury, the judgment-thereon will not be disturbed.</p> <p>2. RAILROADS: Damages from Back Water and Overflow: Statute of Limitations. A cause of action for damages for overflow and backwater caused by a railroad embankment which accrued within five and more than three years before the institution of suit is not barred by the three year Statute of Limitations (Sec. 1890, R. S. 1909), as that statute is both penal and remedial and the cause of action, being placed safely under the remedial part thereof, is controlled by the five year period of the statute (see. 1889, R. S. 1909).</p> <p>3. JUDGMENTS: Several Counts: New Trial. A judgment, in a case involving several counts, may be reversed and carry with it a count found on appeal te be properly decided and that the verdict on such count will stand without retrial of that count, and when the entire case is finally determined, a judgment on that count may be entered.</p> <p>4. RAILROADS: Damages from Overflow and Backwater: Assignability of Causes of Action. Claims for damages due to overflow and back water caused by a railroad embankment are assignable.</p> <p>5. -: - Constitutional Questions: Should be First Raised in Trial Court. Constitutional questions injected into a case for the first time after a rehearing is granted in the appellate court are raised . too late. Such questions should be first raised in the trial court.</p> <p>6. -: Instructions: Ambiguity of Instructions. An instruction, which while not intended, is so worded that it might be taken to mean that if any of the overflows were caused by the negligence of the railroad the jury should find for plaintiff on all of them, is erroneous.</p>

<p>1. NEW TRIAL: Number of New Trials: Errors of Law: Weight of Evidence. Section 2023, R. S. 1909, allowing only one new trial to either party except in case of error in a matter of law or misbehavior of the jury, imposes no limit on the number of new trials granted on account of errors committed during the trial. Said section means that a party is entitled to one new trial solely on the ground that the verdict is against the weight of the evidence if the trial court is of the opinion that such is the case; but he is forbidden from getting a second new trial on that ground or from getting a new trial twice on a ground not coming within the exceptions of the statute.</p> <p>2. -: -: -: -. A new trial was granted defendant for error in admitting evidence offered by plaintiff, for error in excluding evidence offered by defendant and because the court thought the verdict was against the weight of the evidence. After a change of venue a new trial was had and a verdict returned for plaintiff which the court set aside because the jury “disregarded the law” given in defendant’s instruction. Held, that even if this can only he construed to mean that the verdict is against the weight of the evidence, still, as defendant’s right to have the first new trial was complete because of the errors of law committed therein, defendant is net precluded from the benefit of the second new trial because the first court inserted, as an additional reason for granting the first new trial, that the verdict was against the weight of the evidence, since defendant had not exercised its right to have one new trial solely because the verdict was against the weight of the evidence. The first court was not in a position to . say, once for all, that the verdict was against the weight of the evidence since tlie case was not tried that time upon the proper evidence.</p>

<p>1. REPLEVIN: More Than One Defendant: Misjoinder. In a replevin suit for two horses against two defendants, the latter plead misjoinder based solely on a lack of community of interest or title in the property, and not upon any claim as to who took the property or as to whose possession it was in at the time of the commencement of the suit and the issuance and service of the writ. Both defendants, in their testimony, admitted that at that time both horses were in possession of one of them. Hence, plaintiff was entitled to maintain replevin as to both horses had the suit been brought against that one alone. The other need not have been made a defendant, but as he sought to defeat the action by contesting plaintiff’s title to one of the horses and made no claim that he should not have been sued because he was not concerned in the taking or withholding possession, nor that he innocently obtained possession from the other defendant, he is not entitled to be discharged from the case. If he did not join in taking the property he did join in withholding it and made the other’s act his act as much as if he had gone with his co-defendant and took the animals.</p> <p>2. -: -: -: Joint Judgment. A joint judgment in replevin can be rendered only against parties shown to have a community of interest in the property or to have both been concerned in the taking or detention.</p> <p>3. -: Demand When Necessary: Wrongful Taking. Where the taking of the property is wrongful and the plaintiff has not consented thereto, no demand is necessary to enable him to maintain suit.</p> <p>4. -: Sufficiency of Judgment. Under section 2650, the judgment for plaintiff in replevin, based upon a verdict which assesses the value of the property taken and damages for its detention, should recite those facts and give the plaintiff thé right to choose the property or its assessed value. But where the verdict did not assess any damages or value, and plaintiff is not asking for anything but the property, and the judgment goes no farther than to adjudge its return which can be affected since it is still in defendants’ possession, the defendants cannot complain since they are not injured. Defendants should not complain because plaintiff did not obtain all it was entitled to.</p>

<p>1. ATTACHMENT: Nonresidence: Bond: Appearance. Where a defendant is a nonresident an attachment may issue without bond; but if he will enter his appearance and answer, the attachment will be dissolved, if Tie so requests.</p> <p>2. -: Contesting Creditors: Superiority of Lien. P sued W (a nonresident) by attachment and did not give bond. W answered and entered his appearance and asked that the attachment be dissolved. No action was taken by the court on the request at the time, but about six months thereafter P filed an attachment bond with the clerk and sought to revive or continue the attachment. In the meantime C sued out an attachment against W, gave bond, and had it levied on same land. It was held that even if P’s attachment could be revived, it would not relate back to the original attachment and thus cut out C’s attachment and that C had the prior and superior lien. It was also held that when W entered his appearance and answered to P’s action and requested that the attachment be dissolved, it became the duty of the court to dissolve it, and such action by W practically did dissolve it so far as to permit C’s attachment to become the superior lien.</p> <p>3. -: Appearance: Dissolution. Where a nonresident defendant is sued by attachment without an attachment bond and the defendant enters his appearance, answers and asks that the attachment be dissolved, though the court does not formally order its dissolution and the cause is continued, yet, if in the meantime another attachment suit is brought by another party and a bond given, it will be adjudged the superior lien.</p>

<p>1. " INSURANCE, LIFE: Assessment Companies: Suicide: Foreign and Domestic. Domestic and foreign assessment life insurance companies are subject alike to section 6945, R. S. 1909, providing that suicide shall not be a defense to an action on a policy written by such companies.</p> <p>2. -: Suicide: Assessment Companies. A domestic assessment life insurance company issued a policy upon the life of one George Anderson in favor of plaintiff for'$100. The policy provided that if the insured committed suicide the beneficiary should receive only fifty dollars. Anderson committed suicide by shooting himself. The company refused to pay the full amount, claiming that section 6945, R. S. 1909 (the suicide statute) did not apply to domestic assessment companies. It was held that a proper interpretation of section 6959, R. S. 1909, makes both foreign and domestic assessment insurance companies subject alike to section 6945 which provides that suicide shall be no defense and that therefore the plaintiff was entitled to recover the sum of $100.</p>

<p>1. EQUITY: Administration of Estates: Jurisdiction of Circuit Courts. A widow, the sole devisee and- legatee, upon the death of her husband, took possession'of his property, without the aid of administration, and for five years mingled the same with her own property and for six years more her executor continued such intermingling. During, that time the widow and her administrator changed the property so commingled into various other forms of notes and certificates of deposit than those left at the death of the husband, so that it became almost impossible to separate it. In another proceeding an adopted daughter, not mentioned. in the will, was adjudicated a pfetermitted heir. The plaintiff was duly appointed administrator of the husband’s estate and brought this action for an accounting. It was held that the facts and circumstances were so complicated and the questions involved so difficult, intricate and abstruse that only a court of equity had the power necessary to adjust , and settle them.</p> <p>2. -: Necessity for Administration: Probate Courts. Where there are two or more heirs to an estate, one of whom appropriates the entire estate to his own use, the others may, upon application to the probate court, have an administrator appointed who will have power to take charge of the property of the estate and distribute it among the heirs, notwithstanding there may be no debts, and the order of the probate court appointing such administrator cannot be collaterally attacked.</p> <p>3. -: Res Adjudicata: Plea of. A plea of res adjudicata will not avail where the parties to the action are not the same, as in a case where one action is brought against a party as an individual and another as the executor of an estate.</p> <p>4. -: Statute of Limitations. The Statute of' Limitations does not begin to run against an action for conversion of a deceased’s personal property until the appointment of an administrator of his estate and until such time as the latter may maintain an action for its conversion. In this case the administrator of the estate of the deceased could not have maintained this suit until after the date upon which the adopted daughter was adjudged a pretermitted heir, and in view of this fact, the Statute of Limitations began to run from the latter date.</p>

Louis. — Hon. Leo 8. Rassieur, Judge. • (1) Instruction No. 1 covers the facts in judgment, under the agreed statement of facts, and the trial court erred in'•refusing the same for the following reasons: (a) This is an action for money had and received, and is, therefore, equitable in its nature, and it would be inequitable to hold the defendant liable in this case. Reynolds v. Gerderman, 185 Mo. App. 183.

Louis. —Hon. George H. Shields, Ju,dge. It was not error to give the instruction on the credibility of witnesses. There was a decided conflict in the testimony. The circuit court misconstrued the case of Keeline v. Sealy, 257 Mo. 497; Weller v. Laboratories Corp., 191 S. W. 1056; Yolk v. Zepp, 190 S. W. 609; Dawson v. Flintom, 190 S. W. 972; Schuler v. Life Ins. Co., 176 S. W. 274; Price v. Building Construction Co., 191 Mo. App. 395.

Louis. —Hon. Thomas G. Hennings, Judge! (1) The petition does not state cause of action. It alleges that appellant maintained an open trapdoor and that deceased, while lawfully on the premises, fell through same. There is no allegation of an invitation. The owner of premises owes no duty-to trespassers or mere licensees to keep the premises in reasonably safe condition.

Louis. — ■ Hon. James E. Withrow, Judge. (1) It was error to sustain the demurrer to the evidence and to give the peremptory instruction offered by the defendant Hirshfield Skirt Company at the close of plaintiff’s case, and error to overrule appellant’s motion to set aside the nonsuit as to that defendant, when the evidence showed and tended to show that appellant was damaged from an overflow of water due, in part at least, to the fact that a water faucet used by that…

Louis. —Hon. J. Hugo Grimm, Judge. (1) The motion for nonsuit should have been granted, for the following reasons: (a) There was no evidence that defendant knew of the alleged existence of the nail or nails that are claimed to have caused the injury, nor is there any evidence that defendant in the exercise of ordinary care should have known of such nail or nails. Henson v. Stave Co., 151 Mo. App. 234; Wojtytak v. Coal Co., 188 Mo. 260, 281; Pippin v. Construction Co., 187 Mo.

Louis County.— Hon. Gustavus A. Wurdeman, Judge. (1) Plaintiff was not entitled to divorce on the allegation that at the time of the solemnization of her marriage, defendant was pregnant hy another man than plaintiff unknown to him. (a) “Neither in old nor in modern times has it ever been allowed just to hold a child a bastard unless there is.no judicial escape from that dire conclusion.” Nelson v. .tones, 245 Mo. 579-594.

Louis, ■ — Hon. Daniel D. Fisher, Judge. (1). Plaintiff was entitled to recover the full amount paid by him as premiums on this policy J being $266.75, together. with interest thereon from the time of each such payment to date. Suess v. Life Insurance Co., 64 Mo. App. 1; Slater v. Supreme Lodge, K. & L. of H., 78 Mo. App. 387; Puschman v. Hartford Life & Annuity Insurance Co., 92 Mo. App. .640.

<p>Appeal from Jackson Circuit Court. — Hon. O. A. Lucas, Judge.</p>

<p>1. EQUITY: Corporations: Suit for Receiver Pendente Lite by Stockholders: Majority Sale. Courts of equity ■will not interfere in the internal management of corporations to settle mere quarrels and differences of opinion’ between stockholders, as the principle that the majority must rule is rigidly upheld in the absence of fraud, oppression etc. But where the action of the majority is so wholly opposed to the interest of the corporation and the minority stockholders, that it amounts to a fraudulent or wanton destruction of the lattet’s rights, and the minority is otherwise remediless, equity will grant relief.</p> <p>2. _:-¡ -: -: Grounds for Appointment: Ancient Equity Jurisdiction: Statute. Under the principles of ancient equity jurisdiction and under the statute, section 3364, R. S. 1909, a court of equity has power to appoint a receiver pendente lite to carry on the business of the corporation during the pendency of a suit to determine who are the majority stockholders and to suspend and remove misbehaving directors who by fraud, conspiracy, covenous conduct or other extreme mismanagement, have jeopardized the rights of stockholders and have unfairly destroyed the original corporate entente eordiale-.- And this is true even where the corporation is solvent. .-</p> <p>3. -: -: -In an action to remove misbehaving directors and to determine the ownership of certain stock so as to settle who are the majority stockholders and entitled to control the corporation, plaintiffs do not state themselves out of court by alleging that they are in reality the majority stockholders but their rights were not recognized and they could not obtain recognition of them. Nor does the fact that the offending directors have ceased their wrong doing remove the necessity for a receiver, since the dispute as to who are the majority stockholders still remains . and the power still exists to again commence the acts complained of, the moment the chancellor’s restraining hand is removed.</p> <p>4. -: -: -: Decree: Matters not Within the Pleadings. In an equity suit by stockholders to determine who shall control the corporation and to remove offending directors, in which petitioners asked for the restoration of specific funds alleged to have been misapplied but did not pray for a general accounting, the decree cannot include other misappropriations not mentioned in the bill for relief.</p> <p>5. -: Issue of Stock: Consideration. Where the incorporators deposited stock in the corporate treasury with an agreement that it was to be returned to them upon their performance of an agreement to pay a stipulated cash sum for other stock they had deposited, the return of the former stock to them after performance of the said agreement cannot be said to be without consideration.</p>

<p>1. NOTES: Endorsement: Bank Cashier: Directors: Ratification. Under the provision of section 1112, R. S. 1909, the endorsement by a bank cashier of one of the bank’s notes without previous authority from the hoard of directors, is void and cannot he ratified by the directors.</p> <p>2. -: General Denial: Title to Note: Cashier: Authority. Under a general denial, the makers of a promissory note to a bank, in an action against them by an indorsee, may show that the endorsee got no title by reason of the endorsement being made by the cashier of the bank who had not been previously authorized by the board of directors.</p> <p>3. -: Title: Void Endorsement: Remedy of Endorsee. Where the cashier of a bank endorses one of its notes without authority first had from the board of directors, no title is conveyed and the makers may make this defense against the endorsee. The remedy of the endorsee in such instance is to compel the bank to refund the purchase money; or, perhaps, to make an endorsement which will convey the title.</p>

<p>1. HABEAS CORPUS: Certiorari: Juvenile Court: Custody of Child. A female child, seven years old, at the instance of her father, was adjudged to be the ward of the Juvenile court, a branch of a circuit court of Missouri, and taken into the care and custody of the court. The court placed her in charge of her mother who was to report to the court at stated periods. Afterwards the father obtained a divorce in a district court in Kansas and was awarded the custody of the child. He then came to Missouri and instituted a habeas corpus proceeding against the mother . (his former wife) in another circuit court, which latter court discharged the child from the mother and the Juvenile court and awarded her to the father. On application of the mother, the Court of Appeals directed a writ of certiorari to the latter court requiring it to send to such Court of Appeals the record of the proceedings in the matter of the habeas corpus, and finding that such record contained the foregoing facts, held that the latter court had exceeded its jurisdiction in its judgment discharging the child from the custody of the Juvenile court and mother and quashed such judgment.</p> <p>2. -: Return: Reply: Verification. The facts stated in a return to a writ of habeas corpus will be taken as true unless denied in an answer or reply pleading properly sworn to; and a reply or answer not so verified is not sufficient.</p> <p>3. -: Excess of Jurisdiction: Custody: Certiorari. Where a court exceeds its jurisdiction by a proceeding in hateas corpus by interfering with the judgment of another court of equal jurisdiction which had in its custody and care an infant child á writ of certiorari from a superior court is a proper remedy.</p> <p>4. -: Successive Writs: Res Adjudicata. Where a person restrained of his liberty is refused a discharge by a court on a writ of hateas corpus, he may apply successively to any court of superior jurisdiction in the order of their superiority. But if the person is discharged, the judgment therein is res adjudicata as to any other writ except new matter has arisen changing the status.</p> <p>5. JURISDICTION: Foreign State: Divorce: Custody of Child. A district court in Kansas in which a divorce action is pending in awarding the custody of a child cannot deprive a Juvenile court in Missouri of its possession and custody of such child, the latter court having obtained jurisdiction before the action of the court in Kansas, and no effect will be allowed by the courts of Missouri to the action of the court in Kansas.</p>

<p>1. BILLS AND NOTES: Triplicate: Deed, of Trust: Negotiations: New Issue: Rival Claimants. C fraudulently procured a note to-be executed to himself in triplicate with a deed of trust securing one note, not designating which one. He then negotiated one of the notes to a hank for a loan, then paid the loan and took up the note. Then he several different times re-negotiated the note as collateral for loans, taking it up each time, until finally he negotiated it to H, a present claimant. The day C sold and negotiated to S, the other note was in the hands of one of his various endorsees, but on the next day he took it up and held it for a time, and then continued to re-negotiate it and take it up until it reached H, the present claimant. It was held, that when C took up the note and re-negotiated it to H, it was a new issue by him and being subsequent to the purchase of the other note by S, it left the latter entitled to’ priority of the lien of the deed of trust.</p> <p>2. -: Triplicate: Fraud: First Negotiation: Priority. When a note is fraudulently executed in triplicate with a deed of trust securing payment of the note, the one first negotiated will be considered the real note, entitled to priority in the lien of the deed of trust.</p> <p>3. -: -: Negotiation: Reissue. When the payee in a note negotiates it to an innocent purchaser and in the course of business again becomes the bolder and again negotiates it, it is a reissue or new issue of the note.</p> <p>4. -: Knowledge: Equities: Original Payee. While one with knowledge of the infirmity of a note who purchases it from an innocent holder will get a good title free of equities in favor of the maker, yet this rule does not reach so far as to include the payee, who may, in the course of business, again become the owner of the note, as to him the note is subject to any defense as if it had never been negotiated by him.</p>

<p>1. GARNISHMENT: Wages: Petition: Writ:' Statements. Before a garnishment for wages can be run against a railway company there must have been personal service on the defendant, unless the suit be brought in the county where the defendant resides, or the county where the debt accrued; and the petition and writ must affirmatively show where defendant resides and the cause of action accrued. If the petition and summons does not show these things, the judgment against the garnishee will .'he reversed.</p> <p>2. -: Statutes Construed. Section 2427, R. S. 1909, as amended by the Laws of 1911, p. 142, forbids the issuance of a garnishment for wages until after a judgment is rendered against the defendant, except under certain conditions therein named, to be stated in the petition. But these conditions do not meet the requirement of certain statements in the petition and summons under section 1 of the Laws of 1911, p. 142, wherein garnishment is forbidden where there is no ’ personal service on the defendant, except under certain other conditions to be stated in the petition and writ.</p>

<p>1. WITNESS: One Party Dead: Actions Ex Delicto: Corporation Employees. The statute of Missouri (section 6354, R. S. 1909) refuses one party the privilege of testifying when the other party is dead; and such statute applies in actions ex delicto as well as ex contractu. And in the instance of one party being a corporation, the agent or employee who made the contract, or transacted the business, or who, while acting within the scope of his employment, . committed the wrong, is taken to be the corporation, and if he is dead at the time of the trial, the other party cannot testify.</p> <p>2. --: Assault: Third Parties: Competent Witnesses. Where an employee of a corporation, acting within the scope of his employment, assaults another and dies, the injured party who brings an action for the wrong cannot testify, and the fact that other persons witnessed and have knowledge of the altercation and are competent witnesses, will not pervent the disqualifying application of the statute.</p> <p>3. -: -: Two or More Employees: Death of One: Witness. If two employees of a corporation, acting within the scope of their employment, wrongfully assault another and one of them dies, the statute (section 6354, R. S. 1909) will not disqualify the injured party as a witness in his own behalf, since the other wrongdoer .(standing as a corporation) survives and may testify.</p> <p>4. -: -: Conductor: Motorman: Street -Car: Assault; Death. The conductor of a street car being operated for the company by himself and a motorman assaulted a passenger. The conductor died, and it was held that the statute (section 6354, R. S. 1909) prevented the injured party from being a witness in his own, behalf, and that the fact that passengers observed the altercation, and that the motorman saw it, but toqk no part in it, all being competent witnesses, would not prevent the application of the statute.</p>

<p>SPLITTING CAUSE OF ACTION: Justice of the Peace: Commence- . ment of Suit:' Different Demands: Maturity. All causes of action growing out of tke same transaction but falling due at different dates, which, are due at the institution of a suit should be included in such suit. The beginning of a suit before a justice of • the peace dates from the delivery of the summons, to the constable. A landlord sued his tenant from month to month before a justice of the peace for one month’s rent. The summons was void and a new one was issued and judgment rendered. After filing the suit but before the new summons was issued, a second month’s rent fell due. Afterwards suit was brought on the second month. Defendant defended on the ground that it should have been included in the first suit and was barred. It was held that it was not barred.</p>

<p>CONSOLIDATED SCHOOL DISTRICTS: Maintenance of Elementary Schools: Meaning of Words in Statute. In mandamus ‘to compel tlie directors of a consolidated school district to maintain an elementary school “within two and one-half miles by the nearest traveled road of the home of every child of school age within said school district,” as provided in Act of March 14, 1913, Laws 1913, pp. 721, 725, where the return alleged that “relator does not live upon a highway,” that an elementary school was maintained which was within the statutory distance from where the relator’s children reached the highway; a demurrer to the return, which confesses the facts properly pleaded therein, was properly overruled. The statute does not mean that a schoolhouse must be maintained within two and one-half miles of any child’s home, but only that the schoolhouse must not be more than that_ distance from the point where access to the public road is had. Thé fact that children do not live upon a highway but must go some distance to get to it is not a matter of consequence. That is merely their misfortune or inconvenience.</p>

<p>1. EQUITY: Reformation of Deed of Trust: Judgment: Res Adjudicata: Parties Bound. In a suit between grantor and grantee to reform a deed of trust on tbe ground -of mistake, so that a suit for damages might be maintained under a second count for wrongfully assigning said deed to an innocent holder without notice, the judgment in the foreclosure proceedings brought by such assignee without notice against the grantor was not res adjudicata -of the question whether there was or was not a mistake in said deed, since the foreclosure judgment did not necessarily decide the question of mistake but only as to whether it should be deemed to exist as to such assignee.</p> <p>2. -: -: -: -: -: Issues Determinable in Former Action. In the foreclosure suit both the grantor, and grantee agreed that the mistake existed and the only basis on which the grantee assisted grantor in the defense was that the assignee took the deed with notice. As between the grantor and grantee, .no relief that either might have asked against, the other would have been responsive to the bill for foreclosure. They were not adversaries and there was no room for an adjudication of the fact of mistake as between them. Hence one of the conditions necessary to the defense of res adjudicata was wanting.</p> <p>3. -: -: -: -: -: -. When a former judgment is relied upon as res adjudicata of a fact in a subsequent suit, there must be no uncertainty as to whether the former judgment was based upon the establishment of that precise question of fact, else it will’ not be res adjudicata of such fact.</p> <p>4. -: -: Effect of Foreclosure Prior to Reformation. The fact that a deed of trust has been foreclosed will not affect the grantor’s right to correct the same as between him and the grantee so as to determine the rights still existing between them. In such case, the reformation would not affect or clash in any way with its terms and legal effect before judgment of reformation, nor affect the rights of parties purchasing under the foreclosure before the reformation.</p> <p>5. COURTS: Jurisdiction: Title to Real Estate. A suit to reform a deed of trust after it has been foreclosed, wherein the reformation sought- does not change or affect the validity of the foreclosure’ proceedings but only establishes some right as between the original parties to the deed, does not involve the title to real estate and the court of appeals, therefore, has jurisdiction.</p>

Louis. — Now. James E. Withrow, Judge. (1) Tbe burden of proof was on appellant in tbe circuit court, Puller, executor. .Hoyt v. Davis, 21 Mo. App. 235, 237. (2) Where a plaintiff makes tbe defendant bis witness, be vouches for bis credit and cannot impeach him. Bensberg v. Harris, 46 Mo. App. 404, 407; Ely-Walker D. G. Co. v. Mansur, 87 Mo. App. 105, 112; Dunlap v. Chemical Works, 159 Mo. App. 49, 62; 1 Gr. Ev. (14 Ed.), sec. 442.

Louis. —Eon. Leo 8. Bassieur, Judge. (1) Where the verdict of the jury is so manifestly against the weight of the evidence as to suggest passion, prejudice or partiality, the appellate court will not hesitate to order it set aside where the trial court has failed in its duty so to do. Harper v. St. Louis & San Francisco R. R. Co., 168 Mo.

Louis. — Hon. Leo 8. Rassieur, Judge. (1) The check for $1398.60, containing the words “to be used in part renewal of note due 6/21,” was notice to the bank that- said check was not to be used to pay Bollman Bros.’ indebtedness to the bank. They were notice .to the bank that the check was to be used for a certain purpose only, and that the authority of Bollman Bros, was limited. Johnson v. Harrison, 177 Ind. 240; In re Hallet L. R., 13 Chan.

— Hon. Peter H. Huck, Judge. (1) The two sections of the ordinance read in evidence on the part of plaintiff are unreasonable and oppressive and constitute a burden upon interstate commerce, and deprive defendants of the equal protection of the law, and especially the section requiring a watchman to be stationed on the advancing end of a locomotive of all moving trains. 2 Dillon on Municipal Corporations (5 Ed.), sections 589-592, and the many cases cited from this and other…

Louis. — Eon. Karl Kimmel} Judge. (1) Eepresentations made by an applicant for membership in a Fraternal Beneficiary Association are warranties and when false avoid the policy and work a forfeiture of all rights of the applicant and the beneficiary. McDermott v. Modern Woodmen of America, 97 Mo. App. 636; Yalleroy v. Knights of Columbus, 135 Mo. App. 574; Hoagland v. Modern Woodmen of America, 157 Mo.

— Hon. Frank Kelly, Judge. Section 2619, Revised Statutes of Missouri, 1909, provides as follows: “Partition of personal property— proceedings in.

Louis. —Hon. William M. Kinsey, Judge. (1) The Union Station Bank having accepted the check of the Continental Assurance Company in payment of a note which it sold and endorsed to Harry B. (Gardner, the officer drawing the check, took the money of the Assurance Company with knowledge of the fact that it. was not Harry B. Gardner’s and in this action for money had and received must account for its proceeds. St. Louis Charcoal Co. v. Lewis, 154 Mo.

Louis.— Hon. J. Hugo Grimm, Judge. • (1) The court erred in refusing Instruction No. 1 (demurrer to the evidence): (a) Because respondent’s damages (if any) should have been based on market value at St. Louis, not Houston (as to which there was not a particle of evidence), because delivery was to take place at St. Louis, not Houston. Gill v. Com. Co., 84 Mo.

— Hon. James D. Barnett, Judge. The objection to the introduction of any evidence should have been sustained, and the demurrer to the evidence should have been given, because: (1) Plaintiff bases his cause of action solely on the negligence of defendant in permitting an unlawful obstruction, to-wit, a shooting gallery, to be placed on one of its streets.

— Ron. Chas. D. Stewart, Judge. (1) The note sued on in the case at bar is not an attempt to make a testamentary disposition of property, but is a non-negotiable promissory note, importing a consideration on its face. The fact that this note, by its terms, is made payable out of the maker’s estate, twelve months after his death, does not constitute it an attempted testamentary disposition of money. Maze v. Baird, 89 Mo. App. 348.

Louis. —Hon. James E. Withrow, Judge. (1) The judgment being for alimony gave the court a continuing jurisdiction and control over the parties 'and subject-matter of alimony and the court should have sustained plaintiff’s motion to require security, which was omitted in the decree. Schmidt v. Schmidt, 26 Mo. 236; Burnside v. Wand, 77 Mo. App. 39Ó; Francis v. Francis, 192 Mo. App. 710; Sec. 2375, R. S. 1909; Coughlin v. Ehlert, 39 Mo. 286; Cole v. Cole, 89 Mo. App. 228.

Court of' the City of St Louis. —Ron. J. Rugo Grimm, Judge. • - (1) The court erred in refusing to give the instructions in the nature of a demurrer to the evidence, offered by appellant at the close of respondent’s evidence and at the close of the whole case. From the testimony of respondent it conclusively appears that the machine in question could have been operated in two ways, one safe and one unsafe. Respondent chose to operate it in the unsafe way.

' Appeal from the Circuit Court of the City of St. Louis. —lion. William M. Kinsey, Judge.

St Louis. • , —Hon. Thomas C. Hennings, Judge. In cases of breach of contract or of injury to property which has fixed standards of value, where the evidence is uncontradicted, the jury- has no right to find a lower value than the evidence showed, but in case they do find a lower value the court should set aside the verdict.

Louis. —Hon. 'Leo 8. Bassieur, Judge. (1) Section 7828, R. S. 1909, is in derogation of the common law, and, hence, should not be extended to cover either places or devices not clearly within the express terms. Simpson v. Iron Co., 249 Mo. 400; Phillips v. Shoe Co., 178 Mo. App. 196. (2) Defendant’s peremptory instruction should have been given.

Louis.— Hon. Wm. M. Kinsey, Judge. (1) (a). The only service in the suit as to the holder of the first deed of trust on the other lot and building was by publication, and the suit could not be deemed commenced as to such holder until plaintiff had done all it could do to secure, and make and .complete such service by application. Sec. 1756, R. S. 1909; South Missouri Lumber Co. v. Wright, 114 Mo. 326, 333, 334; White v. Reed, 60 Mo.

Original Proceeding in Prohibition. (1) Probate courts in this State are vested with exclusive, original jurisdiction to settle the accounts of executors and administrators. Art. 6, sec.- 34, Const, of Mo.; Secs. 2292, 4056, R. S. 1909.

<p>1. LIBEL AND SLANDER: Instructions: Power of Trial Court: Law and Pact. In an action for libel the jury are the judges of both the law and fact, but it is the function of the trial judge to give instructions as in other cases, except that in libel cases the instructions are merely advisory, and if the pleadings and evidence fail to disclose a cause of action the court has the power to direct the jury to return a verdict for the defendant. '</p> <p>2. -: Innuendo. The office of the innuendo in libel and slander cases is to set a meaning upon words or language of doubtful or ambiguous import which alone would not be actionable.</p> <p>3. -: Definition of Libel. Libel is defined by statute (Section 4818, R. S. 1909) to be the malicious defamation of a person made public by any 'printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to 'public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse.</p> <p>4. -: Defamatory Words. Words are libelous per se which within themselves necessarily carry a defamatory meaning and are not libelous per se if they are susceptible of a reasonable interpretation which excludes a defamatory imputation.</p> <p>5. -: -: Ealsity Thereof: Evidence. The falsity of all defamatory words is presumed in the plaintiff’s favor and he need give no evidence to show them false. The burden is on defendant to rebut this presumption by evidence in support of the plea of justification.</p> <p>6. -: Express Malice: Evidence. When slanderous words are spoken, or a libelous article is published falsely the law will affix malice to them, there being no necessity to offer proof of express malice.</p>

<p>1. NEGLIGENCE: Personal Injuries: Railroads. Plaintiff, an employee of a grain elevator company, was assisting in putting grain cars on a scale, which, was being done by means of a power plant in the elevator which operated a cable. There were three cars to be moved, one empty, the other two loaded. The cable was fastened to the cars by attaching the end to a U-bolt on the last or rear car. The U-bolt pulled out and the cable hook struck plaintiff injuring him. He sued the railroad company. It was held that the demurrer to the evidence should have been sustained. .</p> <p>2. -: Unwarranted Use of Appliance. Where it is shown that a U-bolt on a box car is placed thereon only to be used to pull that car alone and that when the plaintiff, an employee, not of the railroad company, but of an elevator company, was injured, they (elevator employees) were undertaking to move three cars, the -U-bolt thereby subjected to a use for which it was not intended, plain-plaintiff cannot recover damages from the railroad company.</p>

<p>Appeal from Schuyler Circuit Court. — Hon. N. M. P&ttmgill, Judge.</p>

<p>1. CONTRACTS: Warranty, Express or Implied: Leases of Personal Property. A lease of machinery which provides that property was leased “in the present condition thereof” discloses an intention on the part of the parties that there should be no warranty express or implied.</p> <p>2. -: Pleading: Fraud. An action for rent and failure to return machinery in.good condition, cannot be defended on the ground that the owner knowingly and fraudulently concealed the fact that the maeinery was old, worn and out of repair when rented, where fraud was not set up in the answer. Such a claim must be pleaded.</p> <p>3. -: Evidence: Conclusions of Witnesses. Questions propounded to witnesses and the answers thereto in language constituting conclusions or ultimate facts to be found ty a jury are erroneous. Questions should call for a statement of facts on which the jury could draw its own conclusion.</p>

<p>« 1. REVERSAL WITH DIRECTIONS: Jurisdiction. When a judgment is reversed and cause is remanded with specific" directions, the trial court has no other jurisdiction than to follow the directions given.</p> <p>2. DIVORCE: Alimony: Separation and Settlement: Fraud: Tender. Where husband and wife enter into a contract of settlement and separation, in which all money and property rights and obligations are adjusted in consideration of the husband paying her a certain sum of money, she cannot then bring an action for divorce and alimony and seek to repudiate the contract without tendering back the sum received by her under the ^contract. Such state of case does not come within the exception that a tender need not be made when the party demanding it already owes the other party more than the sum which is claimed should have been tendered.</p> <p>3. CASE IN EQUITY: Tender. In an equity ease where the party of- ' fers' to perform any and all orders, directions and judgments of the court, a tender need not be made, though in an action at law it would be necessary.</p> <p>4. DIVORCE: Action: Equity: Statutory. An action for divorce where there has been a valid marriage is not an action in equity. Such actions were formerly within the jurisdiction of ecclesiastical courts; but having no such courts, jurisdiction in our courts is dependent upon the statute and the action may be said to be statu- ' tory.</p> <p>5. TENDER': Pleading: Judgment. Where a tender is requisite, to maintaining a cause of action and none is pleaded, judgment may be rendered on the pleading.</p>

<p>1. CORPORATION: Expiration of Charter: Officers as Trustees. Whenever the charter of a corporation expired by reason of the time mentioned in its article of incorporation having expired, the affairs of the company must be wound up as provided in section 2995, Revised Statutes 1909.</p> <p>2. -: Equity. But where those in control of the company do not thus wind up its affairs, but proceed to organize a new company with the assets and business of the old one without notifying any of the parties interested of any of the facts, equity, under the facts disclosed in this case, will place the latter in the same position in the new company that they held in the old company whose charter had expired.</p> <p>3. EQUITY: Pleading: General Relief. Where sufficient facts are-stated in a petition in equity to entitle plaintiff to relief, the particular relief ashed may be disregarded and any relief consistent with the case made by the petition and with the issues may be granted.-</p>

<p>1. COMMON CARRIERS: Damages to Meats: Insurers. A packing company delivered to a railroad company for shipment fresh meats packed in shippers’ refrigerator cars with directions to the carrier for' icing in transit. The meat was spoiled when it reached destination. The action was based on the common-law liability of the carrier as an insurer. It was held that the verdict of the jury, as to the first count would not be disturbed, but because the bill of lading covering the car involved in the third count contained a provision requiring notice in writing within four months of a claim for damages, which was not given, the verdict on the third count was reversed.</p> <p>2. -: Bills of Lading: Notice of Claim. The purpose of the provision in a bill of lading requiring notice of a claim for damages is to allow the carrier an opportunity to investigate and either settle the claim or prepare for a contest, and while substantial compliance with such a provision is sufficient, the notice must be one of a claim and not merely of a damaged shipment.</p>

<p>1. DRAMSHOPS: Damages: Pleading: Sales of Liquor to Husband after Notice not 'to Do so by Wife. In an action against a dramshop keeper and his bondsmen for damages for selling liquor to plaintiff’s husband after she had notified the dramshop not to do so, where the petition alleges 'that the, saloonkeeper had executed according to law the dramshop license bond and described a valid instrument and the defendants had failed to deny its execution under oath, the license bond stands confessed as’ described.</p> <p>2. -: Pleading: Separate Sales of Liquor in One Count. • Where a petition alleges ten separate sales of liquor to plaintiff’s husband, an habitual drunkard, in one count and a general recovery was had on four of such sales, the court having given the jury a form of verdict which permitted the jury to return a general verdict on the four sales, the defendants, having failed to attack the defect in the petition by motion or other pleading, are not in a position to raise such question after verdict.</p> <p>3. BONDS: Statutory: Construction. In construing statutory bonds the general language of the bond must be interpreted in the light of the statute pertaining to the subject-matter of the bond, sucjjf statute being read into the bond and sureties are held to have contracted with a view to such statute.</p>

<p>1. LIFE INSURANCE POLICY: Green Slip Attached: General Agent: Illustration. A general agent of a life insurance company represented to one whom he was soliciting to take out a life policy for $1000 paid up in twenty years that at the end of that period he had certain privileges in cash, or he could choose a paid-up policy for $1830 and that a paper to that effect, known as a “green slip” would be attached to the policy. The assured was thereby induced to apply for a policy, and when such policy was delivered to him it had the “green slip” attached whereby it was stated that the assured had the privileges the agent had represented; the-slip was held to be a part of the policy, notwithstanding the statement therein that it was merely an illustration of what the assured privilege might be.</p> <p>2. -: Surplus: Trust Fund: Account. The surplus accruing under a life insurance policy paid-up in a given number of years, is a trust fund accruing and growing in the hands of the company for the benefit of the assured, and the company ihust account for it as trustee, and it cannot, arbitrarily, fix upon a certain sum as the amount due the assured.</p> <p>3. GREEN SLIP: Attached to Policy: Illustration: Prima-Facie Case. ■Where a life insurance company attached a green slip of paper to a policy wherein it stated, by way of illustration of what the policy would earn as surplus in a twenty-year period, what similar policies had earned in other similar periods, such paper made a prima-facie case for the assured that his policy would ’earn a like amount in the absence of the company showing the actual fact which was within its knowledge and unknown to the assured.</p>

<p>1. NEGLIGENCE: Federal Employers’ Liability Act: Exclusive Remedy. When the facts and circumstances • surrounding an injury to an employee of a railroad engaged in Interstate Commerce bring the case within the provisions of the Federal Employers’ Liability Act, such act is supreme and excludes every other remedy.</p> <p>2. -: Liability of Lessee Railroad: Interstate Commerce. If an employee of a lessor railroad is injured while engaged in work, which, at one and the same time, was not only a part of the general interstate commerce of such lessor hut also of the particular Interstate Commerce being carried on by the lessee, then such injured person would, at the very time of his injury, be engaged in the Interstate Commerce of both roads, and would be-an “employee” of both roads within the meaning of - the Interstate Cijmmerce Act.</p> <p>3. -: Federal Employers’ Liability Act: Limitations. An action for damages for negligence of a railroad commenced more than two years after the injury occurred cannot be maintained when the facts bring the case within the Federal Employers’ Liability Act.</p> <p>4. -: Interstate Commerce. When the work being done at the time of the injury is such that it directly affects or facilitates-the carriage of Interstate Commerce, then the injured employee is engaged in such commerce.</p>

<p>1. MORTGAGES: Priorities: Mechanics’ Liens. A valid mortgage given by the owner of property constitutes a lien superior to liens arising under contract made by the mortgagor subsequent to such mortgage, and this applies to a subsequent mechanic’s lien, though the value of the security was increased by the labor or material of the mechanic’s lien claimant.</p> <p>2. CHATTEL MORTGAGES: Effect: Removal of Property. Personal property, though subject to a chattel mortgage, may be moved at will by the mortgagor; such removal at most only subjecting the mortgagor to foreclosure.</p> <p>3. -: Removal of Property: Lien. The removal of personal property which was subject to a chattel mortgage to another locality and county will not destroy the mortgage lien or subordinate it to a subsequent one.</p> <p>it. -: Priority: Mechanics’ Liens. As there are no provisions for the severing of subsequent additions or improvements in the case of mortgages on personalty or chattels real, so as to allow the enforcement of mechanics’ liens only against the betterments or to the extent of the enhanced value, as are made by Bevised Statutes 1909, secs. 8215, 8216, 8219, for the severance of improvements from land, one holding a chattel mortgage on a concentrating mill takes priority over a subsequent mechanic’s lien claimant who performed labor and furnished material in the removal of the mill from one point to another, and its subsequent re-building, the structure as rebuilt preserving its identity with the original .structure.</p> <p>5. -: Priority: Mechanics’ Liens: Equitable Estoppel. In such case, the chattel mortgagee cannot be denied priority on the theory of estoppel or ratification of the contract with the mechanic’s lien claimant merely because the chattel mortgage provided that the concentrating mill could be moved and rebuilt at another point, for, except for the provision prohibiting removal under penalty of foreclosure, the mortgagor was entitled to remove the mill, and the purpose of the clause was merely to identify the structure in its new and old locations.</p>

<p>1. TRIAL: Jury Question: Conflicting Evidence. Where the evidence as to a question of fact is conflicting, tbe question is for the jury.</p> <p>2. LANDLORD AND TENANT: Covenants: Eorfeiture. Under the general law a breach by the lessee of covenants or stipulations in a lease providing for payment of rent, or for use of the demised premises in a particular manner, does not, where the lease contains no forfeiture clause for a violation of the agreement, warrant the lessor in retaking possession on account of the lessee’s breach, but merely gives the lessor a right of action for damages, such being the distinction between covenants and conditions.</p> <p>3. -: Conditions: Breach: Landlord’s Bight to Recover. Revised Statutes 1909, section 7880, provides that no tenant for a term . not exceeding two years, or at will, or by sufferance, shall assign or transfer his term or interest, or any part thereof, to another, without the written consent of the landlord, neither shall he violate any of the conditions of his written lease, nor commit waste upon the demised premises. The last clause was added to the section by amendment. Laws 1885, p. 187, section 7881 declares that if any tenant shall violate the provisions of the preceding section, the landlord, after giving ten days’ notice to quit possession, shall have the right to re-enter the premises and take possession, or to oust the tenant, sub-tenant or under-tenant by proper procedure. A farm lease for five years required the land to be cultivated in the best manner possible. The lessee assigned the lease, and the lessor sought to recover possession on the ground that the assignee did not comply with the covenant relating to cultivation.</p> <p>Seld, that while these statutes change the general law in certain respects there could be no recovery by the lessor as the covenant contained no provision for forfeiture of the lease for a breach, as the statute did not apply to the lease, it not being a tenancy at will, or, by sufferance, and the term being for more than two years.</p> <p>4. -: Breach of Covenant: Remedy of Landlord. While Revised Statutes, section 7904, provides special and exclusive procedure for enforcing the collection of delinquent rent, a lessor seeking to recover possession of demised premises on account of the lessee’s breach of covenant as to cultivation may, under section 7881, authorizing the lessor to oust his tenant by proper procedure, maintain ejectment.</p> <p>5. -: Leases: Assignment: Consent of'Landlord. Under Revised Statutes 1909, section 7880, declaring that no tenant for a term not exceeding two years, or at will, or by sufferance, shall assign or transfer his term or interest or any part thereof, without the written consent of the landlord, a tenant whose term was for five years may assign the same without the landlord’s consent.</p> <p>6. APPEAL AND ERROR: Review: Harmless Error: Instruction. Where the landlord admitted that he wrote the assignment himself, instructions predicating the assignee’s right to possession on a finding that the landlord had knowledge of the assignment was harmless, though erroneous, since under the statute the assignment was good without the knowledge or consent of the landlord.</p>

<p>Appeal, from Jasper County Circuit Court. — Eon. R. Á. Pearson, Judge.</p>

<p>1. DRUGGISTS: Negligence: Hog Cholera Serum: Liability. Where defendant, a manufacturing chemist, sold to a veterinary hog cholera virus and serum for use on hogs, and he used it on plaintiff’s hogs, which were thereby killed, the defendant was not an insurer of the remedy even if administered according to directions, especially where it specifically warned of the dangerous character of the substance.</p> <p>2. -: -: -: Evidence. Evidence held to show that the manufacturer of hog cholera serum and virus was not negligent in failing to divulge to the purchaser the dangerous and poisonous character of the remedy.</p> <p>3. -: —-: -. The mere fact that hogs died from the use of hog cholera virus and serum in the way it was intended to be used does not establish negligence in its manufacture.</p> <p>4. NEGLIGENCE: Burden of Proof: Proximate Cause: Other Causes. Equally Probable. The burden of showing a causal connection between the negligence and the injury is on plaintiff, and where the injury may have resulted from another equally probable cause and the uncertainty so inheres in the evidence. as a whole, when received in the light most favorable to plaintiff after resolving all conflicts in his favor, that it is mere speculation to attribute the injury to the cause tainted with negligence, the plaintiff cannot recover.</p> <p>5. DRUGGISTS: Liability for Articles Manufactured and Sold. A manufacturer or dealer is liable for injury to third persons using articles manufactured or sold by them only when sold as being safe and harmless and negligence is shown oin the preparation or directions for using same.</p>

<p>1. PAYMENT: Voluntary Payments: Becovery. One who voluntarily pays money with full knowledge relative to the claim made cannot recover it back in the absence of fraud or duress, although the money paid was not actually due.</p> <p>2. EXECUTION: Sales: Effect. A sheriff’s deed to land sold on execution contains no warranty that the judgment debtor has any title to the land, and does not divest, or purport to divest, the title of any one save the judgment debtor.</p> <p>3. PAYMENT: Becovery: Duress. The voluntary payment of an illegal demand cannot be recovered back, unless paid under the immediate necessity to preserve the owner’s property or person, and ordinarily a threat of legal process is not duress; hence plaintiff, who, after rendition of judgment, acquired land from a judgment debtor, cannot, having bid in the land at execution sale, recover the amount paid under his bid on the theory that it was paid under duress, for the sheriff could not sell plaintiff’s interest, but only the interest of the judgment debtor, and the sheriff’s deed could only amount to a cloud on plaintiff’s title and result in future litigation.</p>

<p>1. CHATTEL MORTGAGES: Recording: Place of Recording. Under Revised Statutes 1909, section 2861, providing that no mortgage of personal property shall be valid against any person other than the parties thereto, unless possession is delivered and retained, or unless the mortgage be acknowledged or proved and recorded in the county in which the mortgagor resides, chattel mortgages not recorded in the county where the mortgagor resides are invalid as against other creditors, though recorded in another county where the mortgaged property is situated.</p> <p>2. -:-:-: “Residence of Corporation.” Revised Statutes 1909, section 3339, requires, a corporation’s articles of agreement to state the name of the city or town and county in which the corporation is to be located. Section 3340 requires such articles to be recorded in the office of the recorder of deeds of the county or city in which the corporation is to.be located. Section 2975 requires the certificate of incorporation issued by the Secretary of State to be filed and recorded in the county in which the corporation is organized. Section 2861 requires chattel mortgages to be recorded in the county in which the mortgagor resides. Held, that within the meaning of this last section a corporation resides in the county designated in its articles of incorporaton and certificate of incorporation and in which it has an office at which much of its business is transacted, though its manufacturing plant and business office in connection therewith are across the line in another county, and a chattel mortgage recorded in the county. in which the manufacturing plant is lqcated is ineffective and void as against an attaching creditor.</p> <p>3. APPEAL AND ERROR: Abstracts: Abridging Evidence. Where the evidence was comparatively short and the material part of it was documentary, and, though the oral evidence might have been further condensed by putting more of it in narrative form, it covered only thirteen printed pages, there was a fair effort to comply with the rules as to abstracts.</p> <p>4. -: Briefs: Numbering Points. Appellant’s failure to number the propositions of law stated in its brief under its points and authorities was not very material, where the court experienced no difficulty in understanding the facts or the propositions of law relied on for reversal.</p>

<p>1. RAILROADS,: Death at Crossing: Evidence. Evidence held sufficient to support a finding that plaintiff’s deceased husband was on a crossing and not on the right of way when struck by a train.</p> <p>2. -: Crossings: Signals: Negligence: Burden of Proof: Contributory Negligence. Failure of trainmen to give signals when approaching a crossing as required by Revised Statutes 1909, section 3140, is negligence per se which casts the burden on the railroad to show such failure was not the cause of injury. The ordinary rule that the burden is oh plaintiff to show the causal connection is changed by statute in such cases.</p> <p>3. -: Injuries at Crossing: Contributory Negligence: Question for Jury. Contributory negligence is a defense in such cases and whether One killed on a railroad crossing where no statutory signals were given and the night was dark and rainy was guilty of contributory negligence in not seeing or hearing the train held, under the evidence, a question for the jury.</p> <p>4. -: Deaths at Crossings: Signals: Statutes Applied. The statutory requirement as to railroad trains giving signals on approaching public road crossings, inures only to the benefit of persons traveling on the public road and crossing or intending to cross the railroad track and Revised Statutes 1909, section 3140, requiring certain signals and throwing the burden on railroad to show that fáilure to give statutory signals was not the cause of injuries at the crossing, does not apply to one killed on the crossing who was walking down the track and not across the track.</p> <p>5. -: Deaths at Crossings: Signals: Statutes Applied. Revised Statutes 1909, section 3140, requiring certain signals and throwing the burden on railroad to show that failure to give statutory signals was not the cause of injuries at a crossing, does not apply to one killed on the crossing who was walking down the track and not across the track.</p> <p>6. APPEAL AND ERROR: Reversible Error: Instructions. It was reversible error, where the principal instruction for plaintiff covering the whole case failed to state that signals required at railroad crossings by Revised Statutes 1909, section 3140, only applied to those walking along the highway, although the court gave such an instruction at defendant’s request.</p>

<p>1. JURY: Directed Verdict: Burden of Proof: Instructions. Where one interpleads in an attachment suit, he assumes the position of plaintiff and the burden of proof rests upon him and where the testimony offered in support of the interplea is oral the credibility of the witnesses is for the jufy and the court is without power to direct a verdict.</p> <p>2. BILLS OF LADING: Transfer of Property Shipped: Intention of Parties. Bills of lading to shipper’s order delivered to a bank puts the legal title to the property shipped in the bank, but where'this is done, not to effect a sale of such property but merely to afford security, then the legal title does not pass to the bank. Whether there was a sale to the bank depends upon the intention of the parties.</p>

<p>"1. NEW TRIAL: Second New Trial: Errors of Law. Where one new trial was granted for errors of law committed by the' trial judge, namely, in admitting evidence offered by plaintiff and in excluding evidence offered by defendant, the fact that the judge also gave as a third reason that the verdict was against the weight of, the evidence, the granting of a second new trial on the last-mentioned ground was not forbidden by section 2023, ft. S. 1909, since said section imposes no limit on the number of new trials granted on account of errors committed, and a litigant is entitled to one new trial solely on the ground that the verdict is against the weight of • the evidence if the trial court is of the opinion that such is the case.</p> <p>2. -: -: -: Statute. Construed." Section 2023, as construed by the-courts, means that a party is entitled to one new trial where the verdict is against the weight of the evidence, but he is forbidden from getting a second new trial on- that ground, or from getting a new trial twice upon a ground not coming within the exceptions of the statute.</p>

<p>1. JURISDICTION: Courts: Probate: Démands against Estates. The Constitution and statutes give probate courts jurisdiction over the allowance of any demand against the estate of a deceased person, and this is broad enough to include demands of every nature whether legal or equitable.</p> <p>2. -: -: -: -. Although a probate court has jurisdiction to allow demands of every nature whether legal or equitable, this does not mean that the probate court can be turned into a court of equity to establish the existence of a trust which is denied and the existence of which can be established, if at all, by-a court of equity. The cases in which it is said that the probate court has jurisdiction of demands of every nature whether legal or equitable are’ where the estate had received the property of another, or of the claimant under circumstances which either in law or equity established the relation of debtor and creditor between them; But in a case where the claimant must first obtain equitable relief before he can claim to be a creditor or to have even an equitable right to any property of the estate, the adjudication of such prior equitable right is purely the function of ■' a court of equity, and to permit a probate court to do this is not merely allowing it to make use of and apply equitable principles in the settlement of the debts of an estate, but it is authorizing it to exercise the jurisdiction of a court of equity which cannot be done.</p>

— Eon. Edgar B. Woolf oik, Judge. (1) The sheriff’s return is invalid and will hot support the default judgment. The sheriff’s return recites two things, viz: 1st. That defendant is a nonresident of this State, and 2nd. That at the time of the service he “was about leaving the county and the State.” Section 1785, E. S. 1909, clearly refers to conditions under which residents of the State may be served.

Louis County.— Hon. G. A. Wurdeman, Judge. (1) A mortgage or deed of trust is valid though the note or bond which it purports to secure has no existence, or was not delivered, provided that the debt exists. 4 Kent’s Commentaries, 145; Graham v. Stevens, 34 Yt. 166; 80 Am. Digest, 675; Carnall v. Duvall, 22 Ark. 136; Lee v. Fletcher, 46 Minn. 49; Nazro v. Ware, 38 Minn. 443; Yolmer v. Stagerman, 25 Minn., 234; Eacho v. Crosby, 26 Grat. 172; Hodgdon v. Shannon, 44 N'.

<p>Appeal from the Circuit Court of St. Louis County. — ■ Hon. Gustavus A. Wurdeman, Judge.</p> <p>(1) The obligation of the master to furnish a reasonably safe place does not apply where the servant is upon premises that are under the exclusive control of a third party. Powell v. Walker, 185 S. W. 532; Troth v. Norcross, 111 Mo. 634; 26 Cyc., p. 1,109; Channon v. Sanford Co., 70 Con. 573; Hughes v. Gas Co., 168 Mass. 395; American Bridge Co. v. Bainum, Fed. Rep. 367; Robinson v. Railroad, 88 Yt. 129; Hallon v. Sprague Elevator Co., 37 N. Y. Sup. 175. (2) The obligation of a master to furnish a reasonably safe place does not apply where a building is in course of erection and conditions are constantly shifting. Armour v. Hahn, 111 U. S. 311; Meehan v. Railroad, 114 Mo. App. 396; Holloran v. Union Iron & Foundry Co., 133 Mo. 470. (3) It is incumbent upon the servant to establish that the danger of which he complains was known to the master, or, by the exercise of ordinary care, would have been known to him; and that the said danger could reasonably have been anticipated by the master. Brewing Assn. v. Talbot, 141 Mo. 674; Goodrich v. Railroad, 152 Mo. 222; Meifert v. Union Sand Co., 124 Mo. App. 491. (4) It was incumbent upon plaintiff to show that it was necessary for him to use the brick wall in question in order to do his work. . This he failed to do. (5) The court erred in giving instruction number 1 at the instance of plaintiff. Said instruction is erroneous for the following reasons: (a) It requires a finding from the jury that it was necessary for plaintiff: to stand or rest on the top of the brick wall in question, when there was no testimony to that effect. It is erroneous to predicate a finding upon matters in reference to which there is no testimony. Stone v. Hunt, 114 Mo. 166; State v. Hope, 102 Mo. 110; Evans v. Interstate Co., 106 Mo. 50; State v. Brown,- 145 Mo. 680; Wilkerson v. Eilers, 114 Mo. 245. (b) Because it requires a finding that defendant’s foreman knew, or, by the exercise of ordinary care, ought to have known of the danger of the bricks in question giving way. There was no evidence upon which to base such a finding. See authorities cited under heading 3, supra, (c) Said instruction is erroneous because it ignores the testimony to the effeet that the brick wall in question was under the control of the brick contractor and not under the control of the defendant. See authorities cited under heading 1, supra, (d) Said instruction is erroneous because it ignores the fact that the plaintiff at the time of his accident was working on a building in the course of construction, amid shifting conditions. See authorities cited under heading 2, supra. (6) The court erred in giving instruction number 2 at the instance of plaintiff. Said instruction is erroneous for the following reasons: (a) Because it requires a finding that it was necessary for plaintiff on the occasion in question to step or rest on the top of a brick wall. It is erroneous to predicate a finding where there is no testimony upon which to base it. See authorities cited under heading 5 (a) supra, (b) Said instruction is erroneous because it requires a finding that the brick wall at the place in question was loose and insecure, and defendant’s foreman knew, or by the exercise of ordinary care would have known of its said condition. See authorities cited under heading 3, supra, (c) Said instruction is further erroneous because it disregards tlie testimony to the effect that the brick wall in question was erected by the brick contractor and was under' his control, and not under the control of the defendant. See authorities cited under heading 1, supra, (d) Said instruction is further erroneous because it ignores the testimony to the effect that the plaintiff was working upon an unfinished building, amid shifting conditions. See authoriites cited under heading 2, supra. (7) The court erred in giving instruction number 3. at the instance of plaintiff. Said instruction is erroneous because it requires a finding that it was necessary for plaintiff to rest or step on the brick wall, when there was no testimony upon which to base said finding. See authorities cited under heading 5(a), supra. (8) The court erred in refusing to give instruction B offered bydefendant. See authorities cited under heading 1, supra. (9) The court erred in refusing to give instruction C requested by defendant. See authorities cited under heading 1, supra. (10) The court erred 'in refusing to' give instruction E requested by defendant. See authorities cited under heading 3, supra.</p> <p>(1) It is elementary law that it is the duty of the master to exercise ordinary care to furnish a servant a reasonably safe place in which to work. Clark v. Iron & Foundry Co., 234 Mo. 436', 449; Dayharsh v. Bailroad, 103 Mo. 560; Herdler v. Buck’s Stove Company, 136 Mo. 16; Doyle v. Trust Co., 140 Mo. 10; Burkard v. Bope Company, 217 Mo. 481; Bennett v. Lime Co., 146 Mo. App. 573; Morgan v. Bailroad, 136 Mo. App. 342. A,. “The greater the hazard the greater the care.” "Woods v. Wabash B. B. Co., 188 Mo. 229. (2) It is equally academic that this duty of the master was imposed upon his vice-principal, Tom Beed, the foreman in charge of the work, and whose orders respondent was obeying in doing the sawing as he was doing it, and his orders to do the sawing as directed were assurance that the wall was reasonably safe for that purpose. Sullivan v. Bailroad, 107 Mo. 66; Bane v. Irwin, 172 Mo. 317; Baxter v. Lumber Company, 186 Mo. App. 361; Clark v. Iron & Fdy. Co., 234 Mo. 436; Morgan v. Railroad, 136 Mo. App. 342; Shortel v. City of St. Joseph, 104 Mo. 120; Bradley v. Railroad, 138 Mo. 306; Bennett v. Lime Co., 146 Mo. App. -575. (3) The duty of the master to exercise ordinary care to furnish the servant á reasonably safe place in which to work applies even though the premises where the servant is required to work are not owned by the master or under his authority or control'. Clark v. Iron & Foundry Co., 234 Mo. 436, 451; Near v. St. Louis & San Francisco Railroad Company, 261 Mo.. 80. (4) The duty on the part of the master to exercise reasonable and ordinary care applies particularly in this case, and the conditions are not constantly shifted in the erection of a building so as to relieve the master of this primary duty. Rowden v. Mining Co., 136 Mo. App. 387. (5) There was testimony that the defendant knew, or'by the exercise of ordinary care, under the circumstances, could have known, that the mortar on the brick wall was defective. (6) In answer to point 4 of appellant’s brief we contend that there was positive evidence to the effect that it was necessary for plaintiff to stand on the brick wall to do the sawing. (7») In answer to point 5 made in appellant’s brief, we contend that there was abundant testimony to the effect that it was necessary for plaintiff to stand on the wall to do the sawing in the manner in which he was directed to do the sawing. There was also evidence that the brick wall was loose and insecure and that the mortar had no adhesive part to it, which was discovered upon a slight examination, by defendant, immediately after the accident. A minute examination of it, which we think ordinary care called for, under the circumstances, undoubtedly would have disclosed it before the accident. Woods v. Wabash R. R. Co», 188 Mo. 229.</p>

<p>Appeal from the Circuit Court of the City of St. Louis. — Hon. Leo. 8. Rassieur, Judge.</p> <p>(1) (a) The contract sued upon was not admissible in evidence, being without consideration, lacking mutuality and unilateral in form, though signed by both parties. Campbell v. Handle Co., 117 Mo. App. 19; Cold Blast Transportation Co. v. K. C. Bolt & Nut Co., 114 Fed. Rep. 77 ; Iron & Rail Co. v. Railroad, 148 Mo. App. 173; Rehm-Zeiher Co. v. Walker Co., 160 S. W. 777; Brown Paper Box Co. v. Mercantile Co., 190 Mo. App. 584; Hudson v. Browning 264 Mo. 58-65; Hill v. Hunter, 157 S. W. 247; Mutual Film Corp. v. Morris 6 Daniel, 184 S. W. 1060. (b) Part performance in this case did not make up for want of mutuality in the contract. Morrow v. Southern. Express Co., 101 Ga. 810; American Refrigerator Transfer Co. v. Chilton, 94 111. App. 61; Savannah Ice Delivery Co. v. American Refrigerator Transit Co., 110 Ga. 142; Gray v. Hinton, 7 Fed. 81. (2) Defendants’ peremptory instruction should have been given for the following reasons: (a) Plaintiff having aided in and insisted upon an illegal method in the performance and execution of the agreement sued upon cannot compel enforcement of the contract at this time: Máteme v. Horwitz, 101 N. Y. 469; Cavan v. Milburn, L. R., 2 Ex. 230; Gaylord v. Soragen, 32 Vt. 110; Aiken v. Blaisdell, 41 Vt. 655; Fisher v. Lord, 63 N. H. 514; Fineman v. Sacks, 33 Kan. 621; Banchor v. Mansel, 47 Me. 58; Church v. Proctor, 66 Fed. 240; (b) There being an admitted violation of a positive statute plaintiff cannot recover on account of breach of contract. Hagerty v. St. Louis Ice Mfg. & Stor. Co., 143 Mo. 238; St. Louis Fair Ass’n v. Carmody, 151 Mo. 566; Curran v. Downs, 3 Mo. App. 468; Buckingham v. Fitch, 18 Mo. App. 91; Rice Bros. & Nixon v. National Bank of Commerce, 98 Mo. App. 696; Tandy v. .Commission Co., 113 Mo. App. 409; In re Canfield, 190 Fed. 266; Genessee Valley Milk Products Co. v. Jones Corp., 124 N. Y. Sup. 1009 ; 2 Elliott on Contracts-, secs. 648 and 656; Small & Co. v. Commonwealth, 134 Ky. 272; Williston on Sales, sec. 675, p. 1142; Cowan v. Milburn, L. R. 2 Ex. 230. ' (c) The question of intent is not material in violating pure food statutes. State v. Griffith, 67 Mo. 287; Beckham v. Nacke, 56 Mo. 546; State v. Bruder, 35 Mo. 475, 1 Cyc. 943; 1 Amer. & Eng. Enc. of Law, 744, 12 Cyc. 148; 8 Amer. & Eng. Enc. of Law, 201; Mullen v. State, 82 Ala. 42; State v. Zichfeld, 34 L. R, A. 784; State v. Southern Ry. Co., 41 L. R. A. 246; State v. Scoggins, 10 L. R. A. 542; State v. McLean, 121 N. C. 589, 42 L. R. A. 721; State v. Edwards, 69 L. R. A. 667; People v.Roby, 52 Mich. 577; Jaycox v. U. S., 107 Fed. 938; People v. Laesser, 79 N. Y. Sup. 470; People v. Kibler, 106 N. Y. 321; U. S. v. Bayaud, 16 Fed. 376; Todd v. Ferguson, 161 Mo. App. 624. (d) Where an act forbidden by law is intentionally done the criminal intent is thereby consummated. State v. Silva, 130 Mo. 464; State v. Johns, 124 Mo. 385-; State v. Gregory, 170 Mo. 606; State v. Nocton, 121 Mo. 554; State v. Beard, 126 Mo. 554; Inhabitants of Salem -v. Inhabitants of Lynn, 13 Metcalf, 545; Haynes v. Rutter, 24 Pick, 242; Toal v. City of N. Y., 69 N. Y. Sup. 454; Gale v. Insurance Co., 41 N. H. 170 ; Ballard v. Lockwood, 1 Daly, 164; Harris & Mitchell v. Amoskeag Lumber Co., 97 Ga. 469; Palmer v. Pinkham, 33 Me. 34; Burlingame v. Rowland, 77 Cal. 317; Hunds v. Keith, 57 Fed. 1013; Conemaugh Bwg. Co. v. Bennett, 60 Pa. Sup. Ct. 543; Blandi v. Pelligrini, 60 Pa. Sup. Ct. 552. (e) .If plaintiff cannot establish his case otherwise than through the medium of an illegal transaction to which he himself was a' party the contract will be held illegal. 2 Elliott on Contracts, see. 678,. p. 33; Harrison v. Mc-Cluney, 32 Mo. App. 481-487; 'Tyler v. Larimore, 19 Mo. App. 445, 454; Kitchen v. Greenabaum, 61 Mo. 110, 114; Bick v. Seal, 45 Mo. App. 475, 477; Friend v. Porter, 50 Mo. App. 89, 92; Sumner v. Sumner, 54 Mo. 340, 346'; Cherokee Strip Live Stock Ass’n v. Cass Land & Cattle Co., 138 Mo. 394, 406; Pendleton v. As-bury, 104 Mo. App. 723. (3) Whether a contract is contrary to public policy is a question of law to be determined from the circumstances of the case. Spangenberg v. Spangenberg, 126 Pac: 382; Weber v. Shay, 56 Ohio St. 116 ; Detroit Salt Co. v. National Salt Co., 134 Mich. 121; Kuhn v. Buhl, 251 Pa. St. 370, 9 Cyc. 483. (4) The court erred in permitting plaintiff to testify as to his future intention, as same was in the form of a self-serving statement. Plaintiff’s jutenlions were all expressed in correspondence and the court should have directed the jury that as a matter of law that if. intent was a material feature of the controversy, that the letters were sufficient, to establish intent upon the part of the plaintiff to violate the law. Lumber Co. v. Railroad, 243 Mo. 244; Spiva v. Osage Coal .& Mining Co., 88 Mo. 75; Powell v. Powell, 23 Mo. 373; State v. F. Lefaivre, 53 Mo. 471; Furber v. K. C. Bolt & Nut Co., 185 Mo. 301; Jackson v. Hardin, 83 Mo. 175; Burress v. Blair, 61 Mo. 140; Henry v. St. Louis, Kansas City & Northern Ry. Co., 76 Mo. 293; Pemberton v. Dooley, 43 Mo. App. 177; Ford v. Dyer, 148 Mo. 528; Davies v. Peoples Ry. Co., 159 Mo. 1; Michael v. St. Louis M. F'. Ins. Co., 70 Mo. App. 26. (5) Having permitted plaintiff to testify as to his intention, defendants should have been permitted to prove by the 1909, 1910 and 1911 contracts and correspondence pertaining thereto for the purpose of showing that plaintiff’s previous conduct was inconsistent with his intent as to his future conduct then expressed. Bainbridge v. State, 30 Ohio State, 274; People v. Bidleman, 104 Cal. 613; Toll v. State of Fla., 40 Fla. 172; People v. McLaughlin, 37 N. Y. Sup. 1013; Manheimer v. Harrington, 20 Mo. App. 301; Owens v. Railroad, 120 Mo. App. 327; Dodge v. Knapp, 112 Mo. App. 525; Whitman v. Supreme Lodge Knights and Ladies of Honor, 130 Mo. 48; Davis v. Bovies, 141 Mo. 241; State v. Spray, 174 Mo. 578; State v. Bailey, 190 Mo. 280; State v. Spaugh, 200 Mo. 594; State v. Wilson, 223 Mo. 168; Powell v. Railroad, 229 Mo. 272; St. „e v. Hyde, 234 Mo. 224. (6) The court’s instruction on the question of measure of damages did not properly declare the law. Where delivery is required to be made by installments the measure of damages will be estimated by the value at the time delivery should have been made. Sagola Lumber Co. v. Chi Title & urust Co., 121 111. 297; Mo. Furnace Co. v. Cochran, 8 Fed. 463; Hewsou-Herzog Supply Co. v. Minn. Brick Co., 55 Minn. 534; Mayne on Damages, sec. 206; Brown v. Muller, 7 Ex. 324; Henry v.'St. Louis, Kansas City & Northern Ry. Co., 76 Mo. 288, 293; Pemberton v. Dooley, 43 Mo. App. 177; Ford v. Dyer, 148 Mo. 540; Davies v. Peoples Ry. Co., 159 Mo. 1; Michael v. St. Louis, M. F. Ins. Co., 70 Mo. App. 26. (7.) Plaintiff having admitted that there was a market value of the character of feed in controversy, the instruction given as to measure of damages was not correct. The measure of damages, in a case where there is a market value of goods, is the difference between the contract price and the market value of the goods at the time and place when and where by the contract they- were to be delivered, if the goods have such a market value, and, where they have no market value, the difference between the contract price and reasonable value of the goods. Consumers’ Glue Co. v. Samuel Binghams Son Mfg. Co., 193 Mo. App. 90. (8) Where evidence inadmissible under the petition was received, defendant is entitled to introduce evidence to controvert same. Hays v. Metropolitan Street Ry. Co., 182 Mo. App. 393; Blair v. Marks, 27 Mo. 579; Bethany Savings Bank v. Cushman, 66 Mo. App. 102; Trustees of Christian Univ. v. Hoffman, 95 Mo. App. 498. (9) Plaintiff was guilty of misbranding and adulterating the feed manufactured in Missouri and used by him in interstate commerce. United States v. 7 cases Echman’s Alterative, 36 Sup. Ct. 190; United States v. 40 bbls. and 20 kegs of Coca Cola, 36 Sup. Ct. 573. (10) It is the court’s duty to- tell the jury the legal effect of the contents of letters where they are unambiguous. St. Paul Fire & Marine Insurance Co. v. Gamier, 196 S. W. 980; Woldert Grocer Co. v. Pillman, 176 S. W. 457; Mount v. Neighbors’ Implement & Vehicle Co., 189 S. W. 614; United Brotherhood of Carpenters, etc., v. Luck, 189 S. W. 1036; Farmers’ Union Merc. Co. v. Pinkerton, 194 S. W. 709; Radford and Guise v. Practical Premium Co., 188 S. W. 562; Thompson on Trials, secs. 1065, 1068. (11) Where, at the execution of a writing an oral stipulation is entered into, or a condition is annexed upon faith of which the writing is executed, parol evidence is admissible, though it materially varies the terms of the contract. Excelsior Saving Fund & Loan Assn. v. Fox, 98 Atl. 593; Ware v. Allen, 128 U. S. 590, 32 Law Ed. 563; Bowser & Co. v. Fountain, 128 Minn. 198, L. R. A. 1916B, 1036; Beach v. Nevins, 162 Fed. 129, 18 L. R. A. (N. S.) 288; Simrall v. Amer. Multigraph Sales Co., 158 S. W. 172 Mo. App. 384, 388; St. Joe Hay & Feed Co. v. Brewster, 195 S. W. 71. (12) Evidence should not be excluded as irrelevant which would have á tendency, however remote, to establish the probability and improbability of the fact in controversy. Wood v. Finson, 91 Me. 280, 284; Livingston v. Stevens, 122 la. 62, 67; Mutual! Life Ins. Co. v. Armstrong, 117 U. S. 591, 29 Law Ed. 997; Gardner v. Meeker, 169 111. 44; Slater fMeyérs Co. v. De Moiest Spoke & Handle Co., 94 Ga. 687; Eames v. .Kaiser, 142 U. S. 488, 35 Law Ed. 1091; Davis v. Yories, 141 Mo. 234, 241; Whitmore v. Supreme Lodge' Knights & Ladies of Honor, 100 Mo. 36, 48; Smith v. National Benefit Society, 9 L. R. A. 616. The law seems to he that when there is nothing in the agreement to exclude the inference the parties, when engaged in the same business, are always presumed to contract with reference to the usage or custom which prevails in the particular trade or business to which the contract relates, and ’ they will be presumed to have knowledge of such custom; and it is not necessary in such a case to prove actual knowledge, or that the custom is so general or universal that knowledge may be presumed. Eaton v. Coal Mining Co., 161 Mo. 35; Holder v. Swift, 147 S. W. 691; Smith & Co. v. Russell Lumber Co., 82 Conn. 116; Insurance Co. v. Reymershoffer, 56 Tex. 234, 238; Bowles v. Driver, 112 S. W. 440; Heyworth .v. Miller Grain, Co., 174 Mo. 171. Defendants are not liable to plaintiff under the contract entered into between Goeke & Company and the defendant's, because the contract sued upon was entered into prior to June 24, 1912, and defendants’ instruction J should have been given.</p> <p>(1) If the promisee signs and returns a written offer it amounts prima facie to an acceptance. 1 Page on Contracts, page 85; 1 Elliott on- Contracts, page 51; Taylor Co. v. Bannerman, '97 N. W. 918; Barker v. Banks, 15 La. 4.53; Elastic Tip Co. v. Graham, 53 N. E. 315; 9 Cyc., page 260. (2) It frequently happens that contracts on their face, and by their express terms appear to be obligatory on one party only; but in such cases, if it be manifest that it was the intention of the parties, and the consideration upon which one party assumed an' express obligation, that there should be- a corresponding and correlative obligation on the other party, such corresponding and correlative obligation will be implied. Lewis v. Atlas Mutual Life Insurance Co., 61 Mo. 538; 6 Euling Case Law, page 689; 9 Cyc. 333; Wise v. Bay, 3 G. Greene’s 430; Jernigan v. Wimberly, 1 Ga. (1 Kelly) 220; Lane & Nearn v. Warren, 115 S. W. 903; Laclede Construction Co. v. Tudor Iron'Works, 169 Mo. 137. (3) -Not only is the contract sued upon not wanting in mutuality since signed by plaintiff, but it is also not wanting in mutuality because from part performance as well as from tbe letters that passed between the parties after its execution, an acceptance will be implied. Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 137; Eaton v. The Wear Coal Co., 125 Mo. App. 194. Williams v. Implement Co., 198 S. W. 428. (4) Defendants ’ peremptory instruction offered’ at the close of, the entire case should not have been given. Church v. Proctor, 66 Fed. 240. (5) Appellants contend that whether a contract is contrary to public policy is a question of law to be determined from the circumstances of the case, and that this was a question of law as was also the legal effect of the letters that passed between the parties after June 17, 1912. (See defendants’ instructions given.) One defined misbranding and the other stated that “then plaintiff cannot recover in this action for .such part of the feed contracted for with which it was intended to violate the law.” 10 Euling Case Law, 946. (6) It was proper -for plaintiff to state his intention as to future shipments. Furthermore, appellants brought out the testimony on cross-examination. 10 Buling Case Law, 946; Section 170, Jones on Evidence; 23 L. B. A. (N. S.) pages 373-393 and 403; St. Louis Fair Ass’n. v. Carmody, 151 Mo. 575; Buckingham v. Fitch, 18 Mo. App. 99; Vansiclde v. Brown, 68 Mo. 634; The State to Use v. Mason, 23 Mo. App. 329; The State v. Palmer, 88 Mo. 573; The State v. Williams', 95 Mo. 249; State v. Banks, 73 Mo. 592. (7) To warrant assuming that an actor had the same intention, the acts mush be so closely connected in point of time that it is not probable that there has been a change of mind and of such a similar nature that it is not probable that other influences played upon him to act. The question of time during which other acts may be proven seems to be largely within the trial court’s discretion. 10 Ruling,Case Law, 939; State v. Murphy, 17 L. R. A. (N. S.) 615. This whole matter of intention was developed by defendants. (8) “Ordinarily the measure of damage for breach of contract to furnish an article is the difference between the contract price and the market price of the article at the time and place of delivery. But there are special features involved in this case which renders such rule inapplicable. . . . The evidence shows that there was no open market for this, particular article.” And it also shows that to obtain the feed only one mill was available. Gallagher v. Baird, 54 App. Div. 404; 2 Sutherland on Damages, sec. 652; Wall v. Ice & Cold Storage Co., 112 Mo. App. 666. (9) Defendants sought to prove that there is a custom' which relieves manufacturers of grain of the obligation to furnish feed when the manufacturer’s mill is destroyed by fire, despite the fact that the contract contains no exception to the absolute duty provided therein. This evidence was properly excluded. Covington v. Kanawha Coal Co., 3 L. R. A. (N. S.) page 248,*. State v. Public Service Commission, 189 S. W. 379; Renick v. Brooke, 190 S. W. 642. (10) This contract is absolute on its. face. It is not incomplete. Its essential purposes are capable of substantial accomplishment regardless of the destruction of any one mill. The destruction of the mill could have been provided against in the contract. It is not apparent from the contract itself that because of its nature it was dependent upon the continued existence of any one mill. For all of the foregoing reasons, testimony with reference to the destruction of the mill by fire constituted no defense. 9 Cyc, 627. (11) The terms of the contract of June 17, 1912, being unconditional, cannot be varied, altered and contradicted by a letter of April 29, 1910, to which no assent was even given. Coons v. Chambers, 1 Abbott’s Practice, 165; Loper v. United States, 13 Court, of Claims Reporter, 269; Harper v..Raymond, 7 Abbott’s Practice, 142; Milske v. Steiner, 103 Md. 235.</p>

<p>1. LIFE INSURANCE: Assessment Plan: Suicide. The Statute (section 2945, R. S. 1909) providing that suicide shall be no defense to an action on a life insurance policy, is applicable to insurance companies on the assessment plan.</p> <p>2. -: Suicide: Contracts. An insurance company doing business on the assessment plan, cannot by contract, under the statutes of Missouri, make suicide a partial defense or reduce the .amount of recovery in the event that the insured-commits suicide.</p>

<p>1. PLEADING: Petition: Cause of Action: Reply. The petition is the place where one’s cause of action must he found pleaded; and one cannot declare upon one cause of action in a petition and recover upon a distinct cause of action in a reply.</p> <p>2. -: -: Telegraph Company: Estoppel Pleaded in Reply. Where a plaintiff instituted an action against a telegraph company for a penalty under section 3330, R. S. 1909, for failure to promptly transmit and deliver a message, and the company hy its answer makes the defense that its wires were down hy reason of storms and floods; the plaintiff, in reply, may plead estoppel in that defendant did not inform plaintiff of that fact when he delivered the message to its agent, as required hy section 3332 of the statute.</p> <p>3. INTERSTATE COMMERCE: Sending and Receiving Points in One State. Notwithstanding both the sending and receiving points for a telegram are in one State, yet if its route of transmission is . partly through another State, it is interstate commerce.</p> <p>4. -: State Police Power: Regulation of Telegraph Company. Prior to June 18, 1910, when Congress asserted its authority over telegraph companies by placing them under the provisions of the interestate commerce statute, the States, in the exercise of their police power, could enforce penalties against such companies for negligent service. But since the enactment of that federal statute, the States have no such power, Congress having taken possession of the entire ground of regulation.</p>

<p>1. ESTATE BY THE ENTIRETY: Note: Share and Share Alike. A note payable to husband and wife “share and share alike ” does not create an estate by the entirety, and upon the wife’s death the husband is not entitled to the note as survivor.</p> <p>2. SEPARATE ESTATE: Husband and Wife: Note: Payee: Express Assent.' Where a note given for purchase money of the wife’s separate real estate is made payable to her and her husband “share and share alike,” the husband does not have any interest in it, since, to have such interest, the wife by provision of the statute, must give her express assent in writing, and allowing the husband to be made a payee in the note is not such express assent..</p> <p>3. HUSBAND AND WIFE: Heir: Administrator: Title: Action. By provisions of the statutes of Missouri (Sec. 350, R. S. 1909) where a wife dies childless, the husband is her heir to one-half of her personal estate. But upon her death the legal title to such personal estate passes to the administrator of her estate to be administered and distributed under the direction of the probate court, and the husband cannot maintain an action against him for possession of any of such property while in the course of administration.</p>