Volume 200 — Missouri Reports

— Hon. Wm. H. Martin,. Judge, (1) The court erred in permitting the State to introduce evidence of the killing of Allison. The record shows that the killing of Clay occurred from five to ten minutes before the shooting of Allison, and was a separate and distinct offense, and that the homicide of Allison was really not necessary to throw light on or to explain the killing of Clay; hence, the evidence as to the Allison killing was incompetent and inadmissible. 1 Bish. New Crim.

— Hon. L. W. Shafer, Judge. (1) The information, which is duly verified hy both the affidavit of the temporary prosecuting attorney and also that of Ed. Shelton, is sufficient in form and substance. State v. Lawn, 80 Mo. 242; Kelley’s Grim. Law, sec. 642.

— -No». B. J. Casteel, Judge. The indictment is sufficient in form and substance, and follows the language of the statute. R. S. 1899, sec. 2009; State v. .Gullette, 121 Mo. 447; Kelley’s Crim. Law, sec. 780'. -

Quo Warranto. (1) A corporation cannot commit a felony. 1. The portion of the information which relates to acts of bookmaking and registration of bets, to acts of permission to others to make books or register bets and to- keeping and using devices for recording bets — all done after June 16, 1905 — does not state violations of law by the defendant, be-canse the act of March 21, 1905, prohibiting book-making and pool-selling, denounces a felony.

Louis County Circuit Court. — H\on. John W. McElhvrmey, Judge.

Mandamus. (1) The bond issue in this case is authorized by sections 6273 to- 6278, inclusive, Revised Statutes 1899. (2) The notice of election required by section 6276 was duly given in due form and time. Kellogg v. Carrico, 47 Mo. 157; Bank v. Stumpf, 73 Mo. 311; Nishnabotna Drainage District v. Campbell, 154 Mo. 151; In re Woolridge, 30 Mo. App. 612; State ex rel. v. Allen, 178 Mo. 555-.

— Eon. Alex. E. Waller, Judge. Affirmed as to defendants railway company and Haines; reversed as to defendant Wiseman. (1) As no delinquency of the company itself is charged to have concurred with the delinquencies of its agents, there was no joint liability, and this cause was removable by the railway company.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The evidence was ample to carry the case to the jury on the question of the negligence of the servants of the defendant operating the car which killed deceased. Murphy v. Railroad, 87 S. W. 947; Klockenbrink v. Railroad, 172 Mo. 689.

— How. Shannon G. Douglass, Judge. (1) The work was fully performed at tire time of the assignments. The right of the plaintiff’s assignors to sell their several claims against defendant for the wages due them on account of labor performed is a common and fundamental right. Section 4, art. 2, Constitution ; sec 895; R. S. 1899; Greenhood on Public Policy, pp. 351, 353; Berbeck v. Stafford, 23 How. Pr. (N. Y.) 236; Thompson v. Cullers, 35 S. W. 412; Beal v. Mc-Vicker, 8 Mo.

<p>1. APPELLATE JURISDICTION: County a Party. In cases in which a county is a party the appeal is to the Supreme Court.</p> <p>2. COUNTY COLLECTOR: Back Taxes: Commissions: Paid to County by Mistake. A county collector who makes final settlements with the county court, in which he retains only four per cent as his commissions on hack taxes collected, cannot, after his term has expired and he has discovered by a decision of the Supreme Court that he was entitled to retain five per cent more, recover the five per cent in a suit against the county. His voluntary act in paying in the five per cent was a mistake of law as to what he was legally entitled to retain, and hence he cannot recover.</p> <p>3. -: -: - — : Allowable by Court. The county court does not allow the county collector his commissions for collecting taxes. He is allowed by law, in counties of designated size, to retain five per cent on tbe amount collected, and in addition four per cent on back taxes collected, by way of penalty, to be taxed as costs. Tbe court’s duty is to require him to make settlements and to see that he does not retain anything more than the commissions which the law allows 'him to retain. If he voluntarily pays those commissions into the treasury, without solicitation, misrepresentation, duress, fraud or undue influence, he cannot recover them by a suit against the county.</p> <p>4. -: -: -: -: Finding by Trial Court: No Evidence. A finding by the trial court that plaintiff by mis- . take of fact paid into the county treasury certain commissions he was by law entitled to retain, will be binding on the appellate court on appeal, if supported by evidence; but otherwise, it will not. And in this case there was no such evidence that the mistake was one of fact.</p>

- — Hon. Samuel Davis, Judge. (1) Instruction 1 requested by respondent and given by the court purported to state the facts in a general way and directs the jury that respondent may recover if using ordinary care, without defining the same, and is therefore erroneous. Sanitary Dairy Co. v. Railroad, 98 Mo. App. 20.

— Hon. Henry C. Riley, Judge. (1) Courts of equity will treat that as done which the party agreed to do, so, where a party undertakes to convey land, but by a mistake in the description conveys land which he does not own, and which, as the record in this case shows, he never owned, equity will regard the deed as conveying the land actually owned by the grantors, and intended to be conveyed. Rhodes v. Outcalt, 48 Mo. 367; Key v. Jennings, 66 Mo. 370.

— Hon. E. B. McKee, Judge. (1) Upon the undisputed facts in this case the judgment below should have been for plaintiff. Gerber v. Railroad, 63 Mo. App. 145; Wyrick v. Railroad, 74 Mo. App. 406; Ward v. Railroad, 158 Mo. 226. (2) The counter-claim contained in. defendant’s answer should have been stricken out on plaintiff’s motion. Walker v. Lewandovska, 15' Mo: App. 581; Carlisle v. Railroad, 168 Mo. 652.

— Hon. L. B. Wood-side, Judge. . (1) The fact that the deed from Lewis M. Clark to John H. Clark was acknowledged before a justice of the peace in Livingston county did not impair its effect as notice, having been recorded in 1867. Secs. 3118, 3119, R. S. 1899; Williams v. Butterfield, 182 Mo. 181; Geer v. Lumber & Mining Co., 134 Mo. 94; Bank v. Corandel,-150 Mo-. 570.

- — Now. Robert A. Anthony, Judge. (1) Respondent’s action should have been dismissed because it was begun and prosecuted in violation of the act of March 6, 1903, Laws 1903, pp. 254-5, and of section 6, Revised Statutes 1899. That act is clearly retrospective in its operation, but required respondent as a condition precedent to bringing this action to set out and tender all past taxes paid by appellants and their immediate or remote executors.

Louis County Circuit Court.— Hon. Jno. W. McElhinney) Judge. (1) (a) Even if Penn, after death of Tom Withington, held adversely to Sallie Withington, it could not start the running of the statute until Sallie’s death, because of her insanity. R. S. 1879; sec. 3222; State v. Macey, 67 Mo. App. 326; Landers v. Perkins, 12 Mo. 259 ; Burdette v. May, 100' Mo. 19; Quick v. Rufe, 164 Mo. 413; Dessaunier v. Murphy, 33 Mo. 184.

— Hon. Robert A. Anthony, Judge. , While it is true that certified copies of entries of land, made by the register of the U. S. land offices, are evidence of the fact of entry of real estate from the Government of the United States, yet no such certified copy or copies were offered and in this case plaintiff wholly failed to show that the title to the land had ever passed out of the United States Government.

— Ron. L. B. Wood-side, Judge. (1) Plaintiffs insist that the law presumes that every possession is rightful and consistent with and not in opposition or adverse to title and ownership. Hunnewell v. Burchett, 152 Mo. 611. Therefore, it devolves on defendant to show that the. possession of Shuck was not the possession of Aaron Gr.

— Hon Wm. L. Jarrott, Special Judge. (1) The memorandum sued on is nothing more than a strict guaranty, and should not receive a broader or more liberal interpretation than is signified by the words used when given their ordinary and usual meaning.

Louis City Circuit Court.— Eon. Franklin Ferriss, Judge. (1) The order granting a new trial on the ground that “a peremptory instruction at the close of plaintiff ’s case should have been sustained, ’ ’ impliedly overruled the demurrer at the close of the whole case, since the motion for a new trial contained this as one of the grounds.

— Hon. James T. Neville, Judge. (1) The court erred in rendering judgment for defendant upon' the finding of facts as incorporated in the judgment. Upon the facts as found, the judgment should have been for plaintiff. (2) When the finding of facts is incorporated in the judgment, then it becomes a part of the judgment, and if the conclusion of law is not warranted by the facts thus found this court will reverse and enter up the proper judgment, or reverse and remand the ease.

— Now. A. D. Burnes, Judge. The appellant, the master, and French, the servant, being jointly sued for the alleged negligence of the servant, and the verdict and judgment being in favor of the servant, the appellant was thereby acquitted of liability. And as such verdict and judgment also fiad against the appellant and adjudge it liable, such finding and judgment against the appellant are inconsistent, erroneous and unauthorized, and should be reversed.

A. D. Burnes, Judge. The Platte Circuit Court erred in assuming jurisdiction of this cause. The order made by the judge of the Buchanan Circuit Court, purporting to transfer this cause to the Platte Circuit Court, was without authority of law and void and did not confer any jurisdiction upon the Platte Circuit Court.

— Bo». Frank R. Bearing, Judge. Upon the uncontradicted evidence plaintiff was not entitled to recover, and defendant’s instruction so declaring should have been given. Sinclair v. Bail-road, 133 Mo. 233; Bine v. Bailroad, 88 Mo. 392; Carr v. Bailroad, 92 S. W. 877; Barker v. Bailroad, 98 Mo. 50; Carrier v. Bailroad, 175 Mo. 470; -Hyde v. Bail-road, 110 Mo. 272; Jackson v. Bailroad, 157 Mo. 621; Kries v. Bailroad, 148 Mo. 330.

— Hon. Hugh Dabbs, Judge. (1) In eases of specific performance, it is necessary to allege and prove the contract with the greatest particularity. “Specific performance of a contract cannot he decreed on doubtful evidence.” Chany v. Ins. Co., 62 Mo. App. 49; Wendover v. Baker, 121 Mo. 290; 2 Beach, Mod. Eq. Jur., secs. 582, 584. (2) The presumption in suits relating to specific performance of a contract relating to personal property, is that the court has not jurisdiction.

— Hon. Andrew F. Evans, Judge. (1) Respondent was guilty of negligence in placing and maintaining the water crane so near the track that it was dangerous to brakemen who in the performance of their duties might be upon the side ladders of box cars passing it.

— Hon. Samuel Davis, Judge. (1) Under the pleadings and evidence, plaintiff could not recover, and this being true, no error upon the trial of the cause would be ground for a new trial. Bartley v. Railroad, 148 Mo. 125; Homuth v. Railroad, 129 Mo. 642; Yogg v. Railroad, 138 Mo. 180. (a) Plaintiff must have the legal title in ejectment. Claggett v. Robertson, 149 Mo. 153.

— How. H. C. Timmonds, Special Judge. (1) Plaintiff was the legally adopted child of James Lynn, deceased, and as snch was entitled to inherit as if born to him in lawful wedlock — or just as a child by blood. Lynn v. Hockaday, 162 Mo.

— Hon. W. L. Jarrott, Judge. (1) The legal effect of the deeds under which, the nintv-eight acres of Clark land in Clinton county were held and as pleaded in plaintiff’s petition, was to create an estate in plaintiff and defendant as tenants by the entirety.

<p>Appeal from Stoddard Circuit Court. — No». J. L. Fort, Judge.</p> <p>(1) If the evidence is that defendant has a perfect title by limitation, under color of title, the judgment is against the evidence presented at the trial. Gage v. Cantwell, 191 Mo. 705; Graton v. Land & Lumber Company, 189 Mo. 322; Marvin v. Elliott, 99 Mo. 622'; Creech v. Childers, 156 Mo. 343. (2) The quitclaim deed is color of title.- Hickman v. Link, 97 Mo. 488; Hamilton v. Boggess, 63 Mo. 244; Heinemann v. Bennett, 144 Mo. 117. (3) And possession under color of title of part of the land extends to all the land described in the instrument creating color of title, and when it continues for more than ten years, it vests the absolute and perfect title in the possessor under color of title. R. S. 1899, secs. 4262, 4266; Franklin v. Cunningham, 187 Mo. 184; Allen v. Mansfield, 108 Mo. 348; Harbison v. School District No.' 1, 89 Mo. 186; Stevens v. Martin, 168'Mo. 410; Watts v. Donnell, 80 Mo. 196; Allen v. Mansfield, 82 Mo. 693; Scannell v. Am. Soda Fountain Co., 161 Mo. 606; Nelson v. Brodhack, 44 Mo. 596.</p> <p>Those claiming adversely under color of title must enter and occupy the land in good faith, claiming the whole tract, relying on the color of title as being the legal one. Gaines v. Saunders, 87 Mo. 557. And whether such adverse claimant relies in good faith on his color of title as being the legal one, is a question of fact for the jury. Gaines v. Saunders, supra. In this case the testimony of appellant himself and of witnesses offered by respondent tends to show that appellant did not rely on his color of title as being the legal title but insisted that the title was in Stoddard county, and that he had as good a title as any one else.</p>

— Sow. J. FL. Stover, Judge. (1) The document admitted in evidence purports to he certified by R. Brinkerhoff, Jr., as judge and ex-officio clerk of the probate court of Richland county, Ohio, and the signature of said R. Brinkerhoff, Jr., ex-officio clerk is certified by the identical R. Brinkerhoff, Jr;, in the alleged capacity of sole and presiding judge of such probate court. The absence of the original will was not accounted for.

— Horn. W. N. • Evans, Judge. (1) The petition does not state a cause of action.

— Hon. B. J. Casteel, Special Judge. (1) ' The act of 1905, page 131, prohibited (first) any person from keeping a room, tenement, shed, booth or building within the State of Missouri and from occupying the same with any book, instrument or device for the purpose of recording or registering bets or wagers. Second. It prohibited any person from recording or'registering a bet or wager within this State, whether the race was to take place within or without the State. Third.

J. L. Fort, Judge. The court erred in refusing to strike out that part of plaintiff’s petition pleading section 1125, Revised Statutes 1899 ; and also committed error in sustaining plaintiff’s motion to strike out paragraphs 2, 3, 4 and 5 of defendant’s answer, pleading contributory negligence, for the reason that sections 1123, 1124 and 1125 were first enacted at a special session o'f the Legislature in 1887, called to enact certain laws, and these particular matters not…

— Now. Joseph J. Williams, Judge. (1) The court erred in not sustaining defendant’s demurrer to the State’s evidence at the close of the State’s case, for the reason that it was shown that the defendant and his brother, co-defendant, were both in the room at the time of the alleged crime, and there is grave donbt as to which was the slayer, and the defendant’s evidence tending to show that he had nothing to do with the killing, and because it was not shown that they were…

— Rem. F. C. Johnston, Judge. (1) The act of the General Assembly, approved March 25, 1901, entitled, “An Act in relation to the 25th judicial circuit, dividing' the court into two divisions, providing two judges for the transaction of the business of said court, for tbe appointment of an additional judge and fixing tbe salaries of said judges,” is void so far as it relates to changes of venue, because it violates article 4, section 28, of Constitution, providing that no law…

<p>'Appeal from Buchanan Circuit Court. — Hon. G. A. Mosman, Judge.</p>

<p>1. CONTRACT: Interpretation. A provision of a contract which in unconditional language seems to invest title in the vendee of lumber upon delivery, must be read in connection with all other provisions thereof in arriving at a correct understanding of what the real intention of the parties was. That rule of construction is now canonized in this State for- both contracts and statutes.</p> <p>2. REPLEVIN: Delivery: Cash Payment: Contract. Notwithstanding unconditional language in a contract that title to lumber was to vest in the purchaser upon its delivery, yet if it is clear from further provisions of the contract that the intention of the parties was that the sale was for cash on delivery, the payment of the purchase price was a condition precedent to the vesting of the title in the vendee, and upon failure to make payment the vendor may maintain replevin.</p> <p>3. -: -: -: Concurrent Acts. When the vendor makes an actual delivery upon the faith of the contract that payment will be made immediately, no property ■ in the chattels passes to the vendee .if the vendee fails to pay therefor, and for such failure the vendor may maintain replevin, for in such case the delivery and payment were meant to be concurrent acts.</p> <p>4. -: -: -: -: Case Stated. The plaintiff contracted for the sale and delivery to defendant of the output of his saw mills during the year 1902, the delivery to be at -the lumber yard adjoining the mill. The contract provided that “immediately on the delivery of any lumber upon said lumber yard the title to said lumber shall at once vest in” defendant, and that “all lumber as it is sawed and before piling and stacking shall be graded and measured” by defendant’s inspector, and “all lumber shall be paid for in full every thirty days.” Held, that the contract constituted an executory sale of all lumber sawed by plaintiff during the year 1902, to be delivered in installments, measured by the quantity manufactured during each thirty days, and the price to be paid at the end of each installment delivered, and not within thirty days thereafter; and plaintiff, having delivered the lumber sawed during August, and having on September 1st demanded payment and that being refused, is entitled by replevin to recover the lumber.</p> <p>5. -: - — : -: -: Evidence as to Meaning: Harmless Error. Where the trial court reached the conclusion that the contract on its face was one for a cash sale, error in permitting witnesses to testify that in their opinion the contract was one for a cash sale, is harmless.</p> <p>6. APPELLATE PRACTICE: Replevin: Judgment for Damages: Remittitur: Abstract. Where it is stated in respondent’s abstract that plaintiff in the replevin, after verdict and before appeal and motion for new trial, entered a remittitur of the damages allowed, and no objections to that abstract are filed, error of the jury in awarding the damages for lack of proof is not an open question.</p>

—Hon. George F. Longan, Judge. (1) Complainant has no interest in the corporation and has no right to ask for a receiver. (2) Complainant, when connected with the corporation, was a party to all the transactions of which complaint is made and cannot complain of the same. (3) Complainant does not state facts sufficient to constitute a cause of action or any grounds for the appointment of a receiver.

— Hon. Argus Cox, Judge. (1) (a) The widow, in connection with the minor children, was entitled to a homestead in the premises. R. S. 1899, sec. 3620'. (b) In addition to the homestead, she was entitled, under section 2944, Revised Statutes 1899, to elect to take a child’s part. Rhorer *v. Brockhage, 13 Mo. App. 397, 15 Mo.

James L. Fort, Judge. (1) The tax lien on the land for which it was sold under the judgment'in defendant’s tax deed to Weber and Jones was a first and paramount lien created by public statute and disclosed by public records and related to the date of levy under the law. R. S. 1879, sec. -6717; R. S. 1899, sec. 7570; R. S. 1899, sec 9187; Fleck•enstein v. Baxter, 114 Mo.

<p>1. EJECTMENT: Adverse Possession: No Evidence. Defendant bought the improvements on a tract of land, but hot the land itself. At that time he thought it belonged to the Government and Was so advised, and wrote to the Land Office and was advised by it that the land had been granted to a named person. A year later he wrote to the patentee’s grantee, and was informed that he owned the land, and would sell it, but would not execute a warranty deed for it. Thereafter he remained in possession, but there is no evidence that he, at the time he wrote to the grantee, was claiming adversely to him, nor does he say when his possession began to be adverse, but says that when the grantee refused to make a warranty deed he concluded he had as good a title as he or any one. The grantee paid the taxes. Held, that defendant’s possession at its inception was not adverse, nor does the testimony indicate that his possession at any time after he wrote to the grantee was changed from a friendly to an adverse possession, and the burden being on defendant to fix the time when he began to hold adversely to the true title, the court properly gave a peremptory instruction for plaintiff.</p> <p>2. -: -: Friendly: Notice to Real Owner.- The defendant who relies on adverse possession, if his occupancy in its inception was permissive or friendly to the title, must show the actual knowledge of the real owner that he claimed in opposition to and in defiance of his title, or he must show that such occupancy or user was so open and notorious and inconsistent with and injurious to the rights of the true owner that the law will authorize from such facts the presumption of knowledge of such facts by the true owner.</p>

— Ron. W. N. Evans, Judge. (1) The tax deeds of May 5,1881, based on judgment for taxes against patentees and record owners when said taxes were assessed, is sufficient to vest in plaintiff the legal title as against defendant who claims under deeds the record of which was burned December, 1870, it not appearing that either the collector or purchaser at the tax sale had any notice of said deeds.