Volume 202 — Missouri Appeal Reports

Louis.— Hon. George H. Shields, Judge. (1) The facts in evidence do not sustain the trial court’s finding that the named beneficiary survived the insured.

<p>1. SALES-: Conditional Sales: Judgment for Purchase Price: Exemptions. Under section 2191, Revised Statutes 1909, providing that ■ personal property shall in all cases be subject to execution on a judgment against the purchaser for the purchase price thereof, and shall in no case be exempt from such judgment and execution except in the case of an innocent person, for value, without notice of the existence of such prior claim for the purchase money, the purchasers of law books under a contract whereby title was reserved in the vendor until all the purchase price was paid, could not hold them exempt from execution on a judgment for the balance of the purchase price of such books; such statute applies as well where the judgment is for the purchase price of personal property sold under a contract of conditional sale whereby the title is reserved in the vendor until all the purchase price is paid, as it does in the case of an absolute sale.</p> <p>2. -: -: -: Remedies of Vendor: Election: May Waive Title and Sue for Purchase Price. Where property is sold under a contract of conditional sale, whereby the title is reserved in the vendor until all the purchase price is paid, the vendor, upon the purchaser’s default, may elect to waive his title and recover judgment for the unpaid balance of the purchase price.</p> <p>3. -: -: -: Vendor Retaking Property: Tender. Section 2890, Revised Statutes 1909, which provides that where the title to personal property sold is reserved in the vendor with right to retake the property in case of default, the vendor cannot take possession thereof without tendering or refunding to the purchaser the amount paid on account of the purchase price thereof, after deducting therefrom a reasonable compensation for the use of the property not to exceed twenty-five per cent of the amount so paid, etc., has no application where the property is seized under an execution issued on the judgment for the unpaid balance of the purchase price.</p> <p>4. —:-: -: -: Judgments: Special Judgment for Purchase Price:. Executions. Under Section 2191, Revised Statutes 1909, plaintiff was entitled to have a special judgment, one which upon its face would show that it was for the unpaid balance of the purchase price of the property in question, in order that it may not be necessary to go behind the judgment to defeat an exemption claim as to this property; and while the statute creates no lien upon the property, it makes a judgment for the purchase price leviable upon the property in question, which might otherwise be claimed as exempt by the purchaser.</p>

Louis. —Hon. Glendy B. Arnold, Judge. A contract to pay the debt of another may be enforced by the creditor if the contract is in writing and is based on a valuable consideration. Winn v. Lippincott Investment Co., 125 Mo. 528; State v. Railroad 125 Mo. 596. This rule is applicable to cases of purchasers of land who accept and hold under conveyances which recite the existence of mortgages on the land and an assumption and promise to pay the same by the purchasers.

Louis. —Hon. George G. Hitchcock, Judge. (1) The liability for the support and maintenance of minor children rests primarily on the father. Rankin v. Rankin, 83 Mo. App. 335; McCloskey v. McCloskey, 93 Mo. App. 393; Biffle v. Pullam, 114 Mo. 50; Rodgers v. Turner, 59 Mo. 115; Hardy v. Eagle, 54 N. Y. Suppl. 1045; Chester v. Chester, 17 Mo. App. 659.

Louis.— Hon. James E. Withrow, Judge. (1) The court erred in refusing to give the jury an instruction in the nature of a demurrer to the evidence, requested by defendant, for the reason that plaintiff made no showing which entitled him to have the ease submitted to the jury on any theory of negligence pleaded in the .petition.

Louis. —Hon. William H. Kinsey, Judge. (1) The only question in this case is: “Are the tax hills void because issued against separate lots instead of an entire tract? All other defenses were ruled against the defendants, who have not appealed, and they are out of the case. Carruthers v. Little River Drainage District, 271 Mo. 429, 196 S-W. 1115; Shull v. Mo. Pac. Ry. Co., 221 Mo. 140, 146.

Louis. —lion. Benj. J. Klene,.Judge. (1) The respondent says the court committed no error in dismissing the petition of plaintiff. While the evidence was conflicting, and irreconcilable, between plaintiff and defendant it was as a whole, overwhelmingly in favor of respondent and against the canse of divorce plead in plaintiff’s petition. (2) The judgment of the court ought not to he disturbed, in this cause.

Louis. —Ron. Rhodes R. Gave, Judge. (1) Section 4780, R. S. 1907, of our statute and the following section (4781) have been several times construed by our courts, and notwithstanding the decision of this court in the case of Taylor v. Sebastian, 158 M. A. 147 this and other courts have held in the main that if, under the guise of a contract of sale, the real intent of both parties is merely to speculate.in the rise or fall of prices, and the property is not to be delivered,…

Louis. —lion. George H. Shields, Judge. (1) The court below erred in refusing the instructions offered on behalf of the defendants, the Laclede Gas Light Company, in the nature of demurrers to the… Held: to complain of an injury sustained, resulting from his failure to use the appliance furnished. 2 Labatt’s Master and Servant (2 Ed.), page 3496; Anderson v. Forrester-Nace Box Co., 103 Mo. App. 387; Wilkinson v. Andriano Bottling Co., 154 Mo.

Louis. Hon. Leo. 8. Bassieur, Judge. (1) The court erred in admitting in evidence the policy in suit and in overruling’ the demurred to the evidence offered at the clise of plaintiff’s case and at the close of the whole case, for the policy was payabJe only to the executors or administrators of the insured and the plaintiff had not qualified as such and was not entitled to sue. Floyd v. Prudential Ins. Co., 72 Mo. App. 455; Braley v. Prudential Ins.

<p>1. CORPORATIONS: Foreign Corporations: Not Licensed and Doing Business in State: Indorsee: Note Invalid. If a note is void by reason of the failure of a foreign corporation, payee therein, doing-business in this State, to take out a license under the laws of this State, then the endorsee cannot recover on such note.</p> <p>2. -: -: -: Commerce: Interstate Commerce. Where a foreign corporation is carrying on interstate commerce not license is required by the laws of this State.</p> <p>3. -: --•: -: -: -: Valid Note. Where a note was executed, payable to the order of a foreign corporation for the purchase price of articles sold to be delivered f. o. b. cars at a point in a foreign State consigned to the maker of the note in this State, there was an absolute sale of the articles then in such foreign State delivered there to the maker of the note shipped from there to the maker of such note, and such note was not void because of the foreign corporation’s failure to obtain a license to do business in Missouri as required by statute; the transaction being interstate commerce no license is required to carry it on.</p> <p>4. BILLS AND NOTES: Holder for Value Before Maturity: Available Defenses: Fraud. In view of Sections 9999, 10022, 10024, 10025 and 10026 of the Revised Statutes of 1909, even though the payee in a note secured the note by fraud, such fact was not available as a defense as against plaintiff endorsee, a holder for value before maturity with no knowledge of such fraud, although the holder knew that the payee took such note on account of sales of its products, etc., and agreed with plaintiff endorsee to pay the costs of collection; mere suspicion is not knowledge.</p>

<p>1. SPECIAL TAX BILL: Validity of Ordinance. The provision in a city charter that no ordinance shall be deemed passed by either house “until it is signed by the presiding officer” is satisfied by the signature of the pro tempore speaker, presiding at the time, having been called to the chair by the regular speaker even though there is no provision-in the charter for the office of pro tempore speaker.</p> <p>2. SEWER DISTRICT: Validity of creating ordinance: Adjourned Meeting. Where an ordinance provides that the Board of Aldermen might adjourn meetings from time to time as they desired, the attendance of seven of the eight aldermen at a meeting on February 22nd, adjourned to that date by the board, there being no quorum present on February 18, -indicates that the latter time of meeting was “desired” by the board and the proceedings hád at such meeting were valid.</p> <p>3. DISINCORPORATION OF TOWN: Adopted by New Municipality. When the town of Westport ceased to exist the sewer districts, previously created by it remained in existence and by the passage of an ordinance constructing sewers in “District No. 3” Kan-City adopted said district as established by Westport.</p>

<p>Appeal from Buchanan Circuit Court. — Hon. Thos. B. Allen, Judge.</p>

<p>Appeal from Howard Circuit Court — Hon. A. H. Waller, Judge.</p>

<p>1. EMPLOYER'S LIABILITY INSURANCE: Employes Covered: Ejusdem Generis. Where there are various clauses in a policy of • employer’s liability insurance relating to the employees to be covered by the policy it is not permissible to take merely one segment of the policy relating to the employees, and by the rule of ejusdem generis confine the scope of the policy to employees engaged in the work specifically named.</p> <p>2. -: Construction of the Contract. Where the meaning of an insurance contract is ambiguous the construction most favorable to the insured must be adopted; and hence a contract purporting, among other things, to cover injuries to any employee injured through the prosecution of certain described business operations, includes injuries to an employee of plaintiff engaged in delivering messages to the foreman in charge of the business operations described although said employee worked in the insured’s office and was not otherwise connected with the prosecution of the business operations described.</p> <p>3. -: Non-payment of Premium. Although the wages paid by the plaintiff to the employee injured were not included in the total amount of wages on which the plaintiff’s premium was based, yet this cannot be relied upon as a nonpayment of premium so as to defeat the insurance since the defendant had by the term's of the policy a year from the expiration of the contract in which to examine plaintiff’s books and adjust the amount of premium, and was given full opportunity to examine said books and' to fix the amount of premium due, and plaintiff merely paid without question or investigation what was demanded, in such case the defendant’s failure to demand the extra amount is a waiver of such part of the premium.</p> <p>4. -: Estoppel. Where the defendant’s agents on notification by plaintiff of an injury to an employee assured defendant they would take care of the matter and protect him, and defendant’s adjuster and attorney took depositions of witnesses in preparation of the defense of the suit, and until a few weeks before the time for trial did not disclaim any liabilities under the policy, the plaintiff has raised an estoppel sufficient to take the case to the jury.</p>

<p>1. CONTRACTS: Statute of Frauds: Full Performance by'One Party Within a Year. In an action on' an oral contract whereby the defendant agreed to pay plaintiff $20 a month for a period of 17 1 /2 years in consideration of the plaintiff’s agreement not to sue defendant for the death of .her husband alleged to have been caused by the defendant’s negligence; since the plaintiff, .a widow with minor children of husband surviving, had but six months under the wrongful death statute to sue, her failure to sue within that period and within the year, is a full performance of her part of the contract which takes the oral agreement out of the provisions of the Statute of Frauds forbidding action on oral agreements not to be performed within a year.</p> <p>2. -: Consideration. The .agreement waiving the right to sue on a bona-fide claim is a good consideration and the defendant’s actual liability on the claim is immaterial.</p>

<p>1,. NEGOTIABLE INSTRUMENTS: Endorsements: Pleading. An allegation that the defendant sold a note to plaintiff and duly assigned same on the back thereof is equivalent to an allegation that defendant endorsed the note.</p> <p>2. -: Discharge of Party Secondarily Liable. The discharge of a person primarily liable on a note by a finding in his favor in a suit against him by the holder is not such a discharge under clause 3 section 10090, Revised Statutes 1909, or such a release, under clause 5 of the same section, as will discharge a person secondarily liable on the instrument. The “discharge” and “release” contemplated by the above clauses are ones resulting from the act or neglect of the creditor and not from operation of law.</p> <p>3. -: Attorney’s Fee. Provision in a note for the recovery of an attorney’s fee in case of a suit on the note, limits the recovery to an attorney’s fee for the prosecution of the suit in which the fee is recovered and does not cover such a fee in the prosecution of an independent suit against another party to the note.</p> <p>4. -: Costs of Another Suit. No recovery of the costs of an independent suit against the maker of notes, based upon an agreement with the defendant, can be had where the defendant is sued on the notes and not on the agreement.</p>

<p>1. UNLAWFUL DETAINER: Description of Premises. A complaint in unlawful detainer which describes tbe premises possession of which is sought as “starting about a quarter of a mile from the Northwest quarter of said described land and extending for about thirty (30) rods in length to seventy-five or eighty rods in width” is bad in that it does not describe the premises with sufficient definiteness.</p> <p>2. -: -: Amendment of Complaint. A complaint in unlawful detainer which contains a faulty description of the premises may be amended, though it may not be when no description whatever was originally given. v</p> <p>3. -: Revoked License. Under the second clause of the unlawdetaine'r statute the relation of landlord and tenant need not have existed and a person entitled to possession may bring the action against a licensee whose license he has revoked.</p> <p>4. -: Notice to Defendant: Disseizen. Where the defendant is in possession as a licensee and the plaintiff demands, in writing, possession, the written notice has the effect of terminating the license, and at the same time satisfies the requirement of the unlawful detainer statute for a demand in writing for the possession of the premises, defendant having claimed that he was a tenant and not á licensee.</p> <p>5. License: Revocation. Where all the defendant had done in exchange for the license was to furnish wire for a fence and the plaintiff offered to permit him to retake the wire, he had not expended such labor or money as to prevent the sudden revocation of the license.</p> <p>6. APPEAL AND ERROR: Suit by Initials. The fact that plaintiff has sued by his initials is not a fatal defect and where defendant fails to raise the point that plaintiff has sued by the wrong name, before judgment in the lower court, he cannot complain on appeal.</p>

<p>1. SURFACE WATER: Adjoining Proprietors: Embankment: Damage To Crops. One of two' adjoining landowners may construct an embankment on his land near the dividing line to protect his land from surface water flowing from the other’s land, without rendering himself liable in damages for destruction of the other’s crops caused by back water.</p> <p>2. RECKLESSNESS: Negligence: Damages. One of two adjoining landowners having a right to construct an embankment on his own land, near the dividing line to protect it from surface water is not guilty of negligence or recklessness, even though the embankment causes the water to back over the others fields and destroy his crop.</p>

<p>1. INTOXICATION: Barber Shop: Sale: Avoidance. If one is so deeply intoxicated that he does not know what he is doing he may avoid his contract. So held where one purchased a barber shop outfit from another who was rendered incapable by an excessive use of intoxicants.</p> <p>2. CONTRACT: Avoidance: Restoring Consideration. If one seeks to avoid his contract on the ground that he was bereft of reason and capacity by being drunk, he may do so without returning the consideration received, where, before being restored to reason, he has lost squandered or disposed of such consideration. The law is likened to the contract of infants.</p>

<p>1. HUSBAND AND WIFE: Contract: Divorce: Custody of Children: Support From Father. Husband and wife who had three infant children, became estranged and entered into a written contract dividing their property for their life and providing that at the \ death of each the remainder should vest in' the children. As . part consideration for this, it was stipulated that she should maintain the children until they became of age. Shortly after-wards she obtained a decree of divorce with custody of children and nothing said about their maintenance. In about eighteen months afterwards she and the children became in need of the necessities of life, and she filed a motion in the divorce case ashing an allowance he made for the support of the children. An allowance was made. It was held to have been properly made.</p> <p>2., CHILDREN: Contract: Right to Support. While husband and wife may contract with each other as though sole, yet she cannot, by contract with the husband, deprive the children of their right to support by the father.</p>

<p>TAX BILLS: General Tax: Lien: Priority. The lien of a subsequent general city tax is superior to the lien of a prior special tax bill issued by the city for public improvements.</p>

<p>1. EXTRADITION: Act of Congress: Flee and Fugitive: Avoid Prosecution: Intention. The words “to flee from justice” and to be “a fugitive from justice,” would ordinarily mean that one has run away for the purpose of escaping prosecution, but in the sense used in the Act of Congress providing for extradition, they cover the case of one who may have left the State where he committed a crime without any intention of avoiding prosecution.</p> <p>2. REQUISITION: Prima-facie Evidence: Conclusive: Evidence of Fact. While a requisition from the Governor of a State upon the Governor of another-State and the latter’s warrant for apprehension of an accused is prima-facie evidence of the right to extradite, it is not conclusive and evidence may be heard to ascertain whether, in fact, the accused is a fugitive, and if this evidence is clear and uncontradicted, it is conclusive.</p> <p>3. SUFFERING PENALTY: Charge: Prosecution: Extradition If an accused committing a crime in the demandant State has paid, or suffered the penalty assessed for such crime, there is no longer a charge against him, the prosecution is at an end and if he leaves the State he cannot be extradited.</p> <p>4. PAROLE: Extradition: Quere. While if one who is convicted of a crime is on parole should violate such parole and escape into another State he may be extradited, yet if he has left the State in compliance with his parole and has not violated it it is a question not decided whether he may be brought back by extradition.</p> <p>5. -: FIRST OFFENCE: Restitution: Discharge: Extradition. By the law of Massachusetts one who commits his fiirst offence of larceny may be paroled, and if he makes restitution to the injured person will not'be further prosecuted. W. pleaded guilty to larceny, he was paroled with the agreement, in court, between him, the injured party, the probation officer and the states attorney that if he would pay to such injured person $1000 he would be discharged. He made the payment, was discharged and voluntarily came to Missouri to reside. He was apprehended in the latter State on requisition from 'the Governor of Massachusetts and obtained a writ of habeas corpus, when it was held that he was not subject to extradition and .discharged.</p>

Ap-peal from the Circuit Court of the City of St. Louis. —Hon. Frank Landuehr, Judge. (1) • Burden of proving the application of the Compensation Act of Illinois to this case, is on the defer,d-ant. The defendant attempts to plead the Compensation Act of Illinois as a defense, and the burden is on the defendant to plead and prove that the Compensation Act has jurisdiction in this case. It must overcome the presumption that the common law applies.

<p>1. APPELLATE PRACTICE: Appeal Bonds: Maintenance: Failure to Give Additional Appeal Bond: Appeal Not Dismissed. In an ac-action by a wife for separate maintenance, under the provisions of section 8295, Revised Statutes 1909, the appeal being from an order allowing the wife maintenance pendente Ute and suit money, the appeal will not be dismissed because of failuré of the appellant to comply with an order of the appeal court requiring. an additional appeal bond.</p> <p>2. PLEADING: Petition: Construction: Sufficiency After Judgment. Even though a petition fails to allege a fact or facts essential to plaintiff’s right of recovery, if by a fair construction of the allegations of the petition such fact or facts not directly alleged, may be inferred from the averments made, or by reasonable implication and intendment appear from the facts alleged, then the petition should be upheld after judgment.</p> <p>3. HUSBAND AND WIFE: Maintenance: Abandonment: Pleading: Sufficiency of Petition. In an action by a wife for separate maintenance, the allegations in the petition reviewed and held sufficient to constitute an abandonment of plaintiff by defendant without good cause within the meaning and intendment of section 8295, Revised Statutes 1909.</p> <p>Reynolds, P. J., dissents, being of the opinion that the petition is fatally defective. ></p> <p>4. NOTARIES PUBLIC: Attorney Acting as Notary: Affidavits. In an action by a wife for separate maintenance, the petition is not void because the attorney of plaintiff took her acknowledgment to the petition as a notary public while acting as her. attorney.</p>

<p>1. CONTRACTS: Illegal Contracts: Not Enforceable. No court will lend its aid to one whose cause of action is founded upon an illegal and immoral act.</p> <p>2. PLEADING: Replevin: Answer: General Denial: Plea Regarded as New Matter Not Confession and Avoidance. In an action in replevin seeking to recover possession of certain household goods, etc., by the vendor, a general denial followed by a plea of facts and circumstances attending the transaction whereby plaintiff transferred the physical possession of the property to defendant showing the immoral and illegal character thereof, as constituting a defense in that the facts so pleaded, if true, operate to deprive plaintiff of any standing in court to recover the possession of the property under a chattel mortgage or otherwise, such portion of the answer subsequent to the general denial is not to be regarded as a plea of confession and attempted avoidance but as new matter pleaded as defense under the provisions of section 1806, Revised Statutes 1909.</p> <p>3. REPLEVIN: Illegal Contracts: Bawdy House: Vendor Cannot Assert That No Title or Right of Possession Passed. In an action in replevin seeking to 'recover possession of certain household goods, etc., by the vendor, where the contract of sale is one attended with immorality and illegality, plaintiff cannot take ad1vantage of such immorality and illegality to assert that no title or right of possession passed to defendant, but that both title and right of possession remained in plaintiff; for to permit plaintiff so to do would allow her to take advantage of her own turpitude.</p> <p>4. -: -:-: Illegality or Immorality of Transaction Bar to Replevin. The action of replevin being purely a possessory action, in order to entitle plaintiff to recover, it must appear that she has a present right of possession which she can enforce without bringing to her aid the illegality and immorality of the transaction in question, or taking advantage of her own turpitude,,, for no court will lend its aid to plaintiff to enforce a supposed right of possession when that right can be established, if at all, only by permitting plaintiff to strike down her own contract on the ground of immorality and illegality in which she participated.</p> <p>5. -: -: -: Illegality or Immorality of Contract a Defense in Replevin. There is no rule or policy of the law forbidding the defendant to plead in defense in an action in replevin the illegality and immorality of the transaction.</p> <p>6. -: -: -: Demand in Answer for Return of Property Not Seeking Affirmative Relief. In an action in replevin where it obiviously appears that it is the plaintiff and not the defendant who seeks affirmative relief in the action, it cannot he said that, by demanding in her answer the return of the property taken from her by the writ, defendant is seeking affirmative relief, such demand being made in compliance with section 2647, Revised Statutes 1909. The return of the property to defendant merely restores the original status, and the facts so pleaded, if taken as true, show that the taking of the property by plaintiff under the .writ was, in effect, an abuse of the process of the court, since in truth plaintiff was without any standing in court to establish that she was lawfully entitled to the possession of the property.</p>

Louis. —Hon, Charles B. Davis, Judge. (1) The law did not require a copy of the application to accompany this policy. R. S. 1909, article 2 (old-line statute); Id., article 3 (assessment statute); Id., articJe 4 (stipulated premium statute, where alone such a provision is found); Id., article 5 (industrial and prudential) ; Id., article 9 (fraternal and beneficial); White-more v. Supreme Lodge, 100 .Mo. 47; Hanford v. Benev.

<p>1. DEATH BY WRONGFUL ACT: Pleading: Pecuniary Loss: Sufficiency of Petition. In an action for damages by deceased’s mother, as his administratrix, the petition alleging that plaintiff was dependent upon deceased for her support, and that he contributed thereto, and that she and the other heirs at law of deceased have been-damage by his áeath in a stated sum, held a sufficient averment of pecuniary loss suffered by the beneficiary for whose benefit the suit was brought.</p> <p>2. -: -: Ages of Beneficiaries: Sufficiency of Petition. In an action for damages by deceased’s mother, as his administratrix, the petition alleging that deceased left no father, wife or children surviving him, and that plaintiff and certain others, at- the time of "his death, were the nearest of kin and heirs at law of deceased, held sufficient, although the petition fails _to set forth the ages of the respective beneficiaries.</p> <p>3. -: -: Suit Instituted Within Statutory Period. In an action to recover damages by deceased’s mother, as his administratrix, even though the petition failed to state that plaintiff instituted her action within the statutory period, the fact that the petition- states the date of decedent’s death, and the fact that the record shows the date of the filing of the petition, it is clear that the suit was brought within the period of the time allowed by statute and held, sufficient.</p> <p>4. -: -: Sufficiency of Petition. In an action to recover damages by deceased’s mother, as liis administratrix, the petition reviewed and held that it contains all the necessary averments required under sections 5426 and 5427, Revised Statutes 1909.</p> <p>5. NEGLIGENCE: Automobiles: Liability of Father for Daughter’s Negligent Use. The ownership of an automobile purchased by a father for the use and pleasure of himself and family does not render him liable for damages to a third person injured through the negligence of a member of his family while operating the automobile in furtherance of that member’s own pleasure, and the fact that the member of the family had the father’s special or general permission to use the car for his pleasure is wholly immaterial.</p> <p>6. DAMAGES: Death by Wrongful Act: Cannot Reduce Loss by Insurance on Life of Deceased. A defendant cannot secure a re- , duction of the damages for which he is liable for negligently causing the death of another, by showing that the plaintjff, or the party in interest, was entitled to collect, or has collected, for -his individual use, proceeds of an insurance policy upon the life of the deceased, and evidence is inadmissible to show the receipt of such money or the existence of such insurance policies.</p> <p>7. TRIAL PRACTICE: Instructions: Omitting Cognizance of Testimony: Properly Refused. In an action to recover damages for death caused by an automobile accident, an instruction that omitted to take cognizance of testimony for plaintiff as to rate of speed, warning of the approach of the automobile, and care exercised to have stopped the automobile without striking deceased, held properly refused.'</p> <p>8. -: -: Assuming Fact: Properly Refused. In an action for damages for death caused by an automobile accident, an instruction that assumes as an established fact that deceased’s companion ran suddenly backwards in front of the machine, whereas it was controverted by the testimony of such companion, held properly refused.</p> <p>9. DAMAGES: Excessive Damages: Mortality Tables Not Conclusive. A verdict for $7500 for the death of plaintiff’s son, held, not excessive, and that while life tables, introduced by defendant, showed that plaintiff’s life expectancy at the age of 74 was a little over 6.68 years, such life tables are not conclusive, and where the record shows that the mother was a witness in the case and the jury had an opportunity to observe her actions on the witness stand, her physical alertness, her general appearance as to health, the jury from such observations, could very properly come to the conclusion that she would live many years beyond that which the average woman of her age, as shown by the mortuary tables, would live.</p>

<p>CONTRACTS: Support: Breach of Contract to Support: Evidence. In an action for breach of contract for plaintiff’s support, etc., evidence reviewed and held that plaintiff did not make out his case and that an instruction to that effect, asked by defendant, should have been given.-</p>

Louis County.— Hon Gustavus A. Wurdeman, Judge. (1) The trial court erred in refusing to allow appellant Schibi interest at six per cent on the amount enjoined in the Sheriff’s hands, from the date of the restraining order, October 18, 1911, to the date of the dissolution of the injunction on July 23, 1915-, a period of three years, nine months and five days. For manifestly Mr. Schibi was, by the injunction, deprived of the use of his money for that length of time.

<p>BILLS AND NOTES: Oral Agreement to Discharge. An oral agreement by the holder of a promissory note secured by a deed of •trust on certain property that he will release the' maker of the note and look for payment to the purchaser of the property does not discharge the maker 'in view of section 10092, Revised Statutes 1909, which provides that a renunciation by the holder of his rights against the maker must be in writing unless the instrument is delivered up to the person primarily liable thereon.</p>

<p>LIFE INSURANCE: Beneficiary: Fledge. Where the insurance policy gives the insured the power to assign the policy and to change the beneficiary, the latter acquires no vested rights to the proceeds of the policy and if the insured has pledged the policy to secure a debt, the named beneficiary takes subject to the rights of the pledgee.</p>

<p>1. PROCESS: Personal Service in Another State: 'Suit to Set Aside Divorce. In a suit to set aside a divorce on the ground of fraud, brought in the court which granted the divorce, personal service bn the defendant in another State is valid under section 1778, Revised Statutes 1909, and section 1770, Revised Statutes 1909.</p> <p>2. -: -: Property Bight. The right to the status or condition of being a married woman instead of a divorcee is of itself a property right within the meaning of section 1770, Revised Statutes 1909.</p> <p>3. HUSBAND AND WIFE: Matrimonial Domicile. Where husband and wife have their domicile in Missouri and the husband subsequently abandons the wife moving into another State where he is followed by the wife who establishes there a separate domicile, the matrimonial domicile remains in Missouri.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Wm. O. Thomas, Judge.</p> <p> Appeal from Jackson Circuit Court. </p>

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

<p>1. FRATERNAL BENEFICIARY INSURANCE: Change hy Insured to Hazardous Employment: Notice. Where the by-laws of a fraternal insurance order provide that on change by the insured to a hazardous employment the clerk of the defendant’s local camp should be notified, notice to such clerk is notice to the defendant.</p> <p>2. -: -: Waiver of Higher Premiums. The acceptance by the defendant of premiums at the old rate, after notice to the clerk of its local camp that the insured has become engaged in hazardous employment for which higher rates were prescribed, is a waiver by defendant of its right to the higher rates where it has designated such clerk as its agent to receive such notice; and although a provision in the constitution of defendant that officers, agents or employees had no authority to Waive conditions is valid, under section 22, Laws of 1911, page 292, such provision has no application in the instant case. '</p> <p>3. -: -: Estoppel. A fraternal insurance order which after proof of death has been filed, suit commenced, and trial had, still retains the premiums paid by a member at the old rate after he had changed to an employment for which a higher rate was -prescribed is estopped to maintain that the insurance certificate is null and void.</p>

<p>Appeal from Boone County Circuit Court. — Hon. David H. Harris, Judge.</p>

<p>1. TALES: Future Delivery: Intention. There may be a valid contract for sale of corn for future delivery even though the vendor has no grain on hand. The thing which taints a sale for future acquisition and delivery is a lack of intention to procure and deliver within the time limited.</p> <p>2. -1 — : Options: Sale: Unaccepted Offer. An option contract for sale of grain, is a privilege extended to one whereby he may buy, sometimes called an unaccepted offer, or right of election.</p> <p>3. -: Statutes: Options: Intention. The Statute of Missouri. section 4780, Revised Statutes 1909, does not prohibit all option contracts for grain (as in some States) but only such in which the parties have no intention to deliver, or to buy.</p> <p>4. CONTRACTS: Options: Intention to Deliver: Instructions. In an option contract for the purchase of corn there must be an intention to deliver and to receive and to pay for it, if the option is exercised. The intention is a part of plaintiff’s case which he should submit in his instructions. If he fails to do so it is an error which will not be cured by being submitted in instructions for the plaintiff. But as there is no dispute or controversy in the evidence as to that fact the omission is not reversible error.</p> <p>5. -: Sale of Option: Consideration: Wager: Intention. An option, or a privilege to buy, at a certain price, is a thing of value which will support a contract to pay for it; and the fact that one agrees to pay a certain sum for an option to buy corn for future delivery, he to lose such sum if he fails to buy is not a wagering contract. It does not show an intention not to buy.</p> <p>6. -: Sales: Future Delivery: Merchantable. In an ordinary sale of corn to be delivered it is implied that it will be merchantable, that is good quality and salable, though not necessarily the best.</p> <p>7. -: Sales: Best Merchantable. If a contract for sale of corn for future delivery calls for the “best merchantable corn,” it means the best grade of corn usually dealt with in the markets of the country, as distinguished from the market in the immediate vicinity of the contract.</p> <p>8. -: Options: Month of Delivery: Instructions. In an action on a contract for the sale' of corn to be delivered in the month of December, where the vendee has called for delivery on th9 , 26th of that month, it is error to instruct that the average market price for the whole of that month would constitute the market price. It should have been restricted to the 26th and after.</p>

<p>1. APPEAL AND EKKOR: Jurisdiction of Special Judge. The lack of jurisdiction of tbe special judge who tried the case, on the ground that there is no affirmative showing in the clerk’s entry on the record that the regular judge of the division requested, or ' failed to request the judge of some division to hold court for him cannot be urged for the first time in the appellate court after the parties have acquiesced to the sitting of the special judge elected as prescribed by statute.</p> <p>2. FALSE IMPRISONMENT: Allegation of Malice: Actual Damages. In an action for false imprisonment, the existence of malice need not be alleged except where punitive damages are sought; an instruction which deals with the actual damages sustained by the plaintiff need not require the proof of malice unless the plaintiff has alleged the existence of malice in connection with his request for actual damages.</p> <p>3. -: Punitive Damages: Conflicting Instructions. An instruction for plaintiff which tells the jury that it may consider the fact that 'defendant acted upon reasonable and probable cause in mitigation of punitive damages, conflicts with an instruction given in defendant’s behalf that if defendant acted and relied upon reasonable and probable ground the plaintiff could not recover .punitive damages.</p> <p>4. -: Excessive Actual Damages. A verdict of $3000 actual damages held not excessive where plaintiff was walked through the street, taken to the station in the patrol wagon, and placed in a cell with undesirables where he spent the night.</p>

<p>1. CROPS: Intruder: Ownership. So long as a crop remains on the land, unsevered, it is the property of the owner of the land although planted by an intruder in adverse possession to the real owner.</p> <p>2. -: Lessee of Apparent Owner. A defendant who leases land from one who is the apparent owner of the land acquires no right to the possession of crops planted by him, but, unsevered, greater than that of the apparent owner.</p> <p>3. REPLEVIN: Failure to File Affidavit and Bond. Under section 2637, Revised Statutes 1909, suit for replevin may be brought in the circuit court and the cause may proceed to judgment although the plaintiff had not filed affidavit or bond and the sheriff has not seized the property.</p> <p>4. -: Judgment for Rent in Ejectment: Election of Remedies. Where one who has taken judgment in ejectment for possession, damages, and rent until restitution, refuses, after learning that a crop has been planted, to accept the rents, he cannot be said to have elected to take the rent instead of the crop, as the judgment was taken before the crop' was planted and when plaintiff did not know a crop would be planted.</p> <p>5. -: Inadequate Damages. Athough the only evidence as to the value of the crop for which the action is brought shows it to be of greater value than the verdict of the jury indicates, the appellate court is not at liberty to direct a judgment in plaintiff’s favor for a larger amount than found by the jury where the damages are unliquidated.</p>

<p>1. VERDICT: Motion in Arrest of Judgment: Judgment on the Verdict. Where the verdict returned by the jury is contradictory in that it recites a finding on the issues in favor of the plaintiff and yet states that plaintiff has suffered no actual damages, it is the duty of the trial court to set aside the verdict and order a new trial; it is erroneous to render judgment on the verdict in favor of the defendant.</p> <p>2. - — ; Failure to File Motion for New Trial. Where a verdict is fatally defective the trial court may set it aside although no motion for a new trial is filed.</p>

<p>BANKRUPTCY: New Promise to Pay Made Before Discharge. An action will lie on a promise by a bankrupt to pay an indebtedness existing at the time of his adjudication in bankruptcy even though the promise is made prior to his discharge.</p>

<p>1. LIFE INSURANCE: Lapsed Policy; Premium Note. Where a policy of life insurance contains a promise that on failure to pay any premium note. when due the policy becomes null and void without any action or notice by the company, no action may be maintained on the policy after there has been a failure to pay a premium note which has fallen due.</p> <p>2. -: Concurrent Loan Agreement. Under the peculiar facts and circumstances, held there is no proof that the premium note given in payment of the policy in suit was secured by collateral deposited with another note, although the note recited that it was to secure any other indebtedness which the insured then owed, or might owe, the defendant.</p> <p>3. -: Premium Note: Waiver of Payment. A statement in a letter that the company will not enforce payment except from the proceeds of the policy is not a waiver of the payment of the premium but means that the company will look for payment of the note out of the cash surrender value of the policy or from other sources than the insured personally.</p> <p>4. -: Failure to Demand Payment. A failure to demand payment of a premium note when it falls due is unnecessary where there is an agreement that the company will not look to the insured personally for the payment of the note and where there is a provision in the policy that it should become void on failure to pay a premium note when due, without any action or notice by the company.</p>

<p>1. INTERSTATE SHIPMENT: Unloading: Extension of Time from 28 to 36 Hours: Diseased Stock Pens: Damages. An owner of live stock shipped them with a carrier from Columbia, Missouri, to Fayette, Mississippi. East St. Louis, Illinois, where the stock pens were infected with virulent diseases to live stock was on the route, and that point was within sixteen hours run from Columbia and the owner, in order to prevent unloading and feeding at that place, under the provisions of the- interstate commerce' law requiring carriers not to confine stock longer than twenty-eight hours ' without unloading, unless requested by the owner to extend the time to thirty-six hours, made such request. It was held, that this entitled him to have the stock carried such longer period than twenty-eight hours as was within thirty-six hours, and that the carrier violated the contract in unloading at East St. Louis within sixteen hours and was liable in damages for disease? contracted at that point.</p> <p>2. INTERSTATE SHIPMENT: Unloading: Request of Shipper for Extension. The federal interstate commerce statute requires ■ that carriers shall not confine live stock for a longer period than twenty-eight hours without unloading resting and feeding; hut contains a proviso that if the shipper requests, this period may be extended to thirty-six hours. It was held that this proviso was for the benefit of the shipper and that if he feared his stock would be infected with diseases if unloaded at a place less than twenty-eight hours run from place of shipment, had a right to request that the time be extended to. thirty-six hours, and that if such request (incorp'orated in the contract of shipment) was violated by the carrier unloading within twenty-eight hours and his stock became diseased and died, it was liable in damages.</p> <p>3. BILL OF LADING: Interstate Shipment: Answer. A bill of lading reading that a shipment is from Columbia to St. Louis, Missouri, but which has written across the face that the destination was Fayette, Mississippi, and defendant’s answer stating the shipment was interstate, it will be so held on appeal.</p> <p>4. INSTRUCTIONS: Error Condoned. Where defendant’s instructions include the error complained of in plaintiff’s instructions, defendant’s complaint will not be considered.</p> <p>5. CLAIM OF LOSS: Notice. Notice of claim on loss on shipment of live stock is now extended and made good by federal statute if given within ninety days of loss.</p>

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

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

<p>1. MORTGAGES: Assumption by Purchaser. Purchaser, assuming a mortgage on the granted property, becomes the,primary debtor, and obligated to pay the indebtedness.</p> <p>2. -: Purchase or Payment: Presumption. Where a third party furnishes the whole or part of the consideration for the surrender of a note secured by mortgage, though this is done at the instance of the maker, and the note is then indorsed and delivered over by the holder and held by the third party it is presumed a purchase and not a payment is intended.</p> <p>3. ESTATES: Merger. The doctrine that when a greater and lesser estate, held in the same right, meet in the same person, without any intermediate estate, the lesser merges in the greater and is extinguished, has many exceptions, especially in equity.</p> <p>4. MORTGAGES: Merger. When the lesser estate, such as a mortgage, is acquired by the owners of the fee for the benefit of- a third party, who contributes the whole or part of the consideration, no merger takes place, for such owner does not acquire and hold the lesser estate in the same right as he holds the fee.</p> <p>5. -: -. Where the lesser estate is a deed of trust, the legal estate is in the trustee, and not in the owner of the equity of redemption, ‘so that the acquisition of the secured note hy the owner of the equity of redemption does not merge the lesser and greater estate in such owner, for the reason that the legal estate is outstanding in the trustee, and thus intervenes to prevent the merger.</p> <p>6. ESTATES: -. Mergers are not favored either in law or equity. 7. -:--. Merger is a matter of intention, and, where .unexpressed such intention is presumed from what appears to be the party’s best interests.</p> <p>8. MORTGAGES: -. Where mortgagee of tract A, in order to purchase of mortgagor tract B free from incumbrances, arranged with hold of mortgage on B to transfer such mortgage to tract A, and accordingly, as part of the purchase price, indorsed without recourse, to mortgagee of B, the note secured by mortgage on A, the mortgagee of B at the same time releasing the mortgage on B, there was no merger of the mortgage on A.</p>

<p>1. CARRIERS: Rates: Interstate Commerce. Where a shipper delivered an interstate shipment of goods to a- carrier and directed it to he sent oyer a route having an established through charge, the initial carrier was charged with the duty to make necessary notations; on the waybill, and the shipper had the right to assume compliance with that duty, and he was not responsible for any misrouting.</p> <p>2. -: Action to Recover Charges: Presumptions. In an action by a carrier to recover charges, where neither the bill of lading nor the waybill issued by the initial carrier was introduced in evidence,it must be presumed that they designated the routing of the shipment as stated in a receipt issued by such carrier to the shipper, especially in view of Interstate Commerce Act, Sec. • 20 (U. S. Comp. St., Secs. 8604a, 8604aa), providing a penalty for issuing a false bill of lading.</p> <p>3. -: Connecting Carriers: Misrouting: Innocent Parties. A connecting carrier receiving a shipment of goods which was not routed over its line will be charged with knowledge that it was aiding in misrouting the shipment, where, the bill of lading and waybill designated the proper route.</p> <p>4. -: Established Rates: Contracts. An interstate carrier cannot',- by contract or otherwise, by estoppel or waiver, directly or indirectly, increase or decrease the duly established freight rates, and the shipper must make good any deficiency not collected, regardless of >the cause; freight rates established .by the approval of the Interstate Commerce Commission dominating every shipment and contract, and this rule applies to a through rate made up of the sum of local rates of connecting carriers.</p> <p>5. -: Rates: Selection of Route. Where a shipper delivers goods to a carrier, he is entitled to have the goods sent over the cheapest route, and without even making a selection.</p> <p>6. -: Misrouting: Established Through Rates. In case an interstate shipment of freight is misrouted so that the shipper or consignee is compelled to pay a larger amount of freight, charges than the established through rate, the carrier or carriers, whether initial or connecting, which are guilty of the misrouting, must stand the loss, and cannot collect the excess charges caused by the misrouting, and, if paid by the shipper or consignee, must refund the overcharge, especially in view of Interstate Commerce Rule 214, Sec. (d), relating to misrouting shipments.</p> <p>7. -: Liability of Carrier: Relation of Connecting Carriers. Where shipper ascertained through rate and designated the proper route and paid the correct amount of charges for the through shipment, the initial carrier was responsible for the through shipment, though part of the route was over a connecting carrier, the connecting carrier becoming, in a measure at least, the agent of' the initial carrier to complete the shipment, and there was such contractual relation between the two carriers that the connecting carrier could hold the initial carrier for its lawful share of freight charges.</p> <p>8. -: Interstate Carriers: Freight Charges: Actions. The spirit of the Interstate Commerce Act with the Carmack Amendment (XJ. S. Comp. St., Secs. 8604a, 8604aa) is to treat connecting lines of transportation as one line so far as the shipper is concerned, and to compel the different companies forming a through route to deal as a unit with the shipper, and to then adjust all differences as to individual liability among themselves, and thus, where a shipment was misrouted and the proper charges were paid to the terminal carrier, such terminal carrier should not be allowed to sue the shipper for the local established charges over the actual route of the shipment, but should be required to settle the matter with the other carriers, because to collect the money from the shipper would be to collect money for the benefit of an offending carrier, money which must again be returned to the shipper by the offending carrier.</p>

<p>1. MALICIOUS PROSECUTION: Malice and 'Want of Probable Cause. Both malice and want of probable cause are essential to sustain action for malicious prosecution.</p> <p>2. TRIAL: Instructions: Ignoring Elements of Cause of Action. An instruction, authorizing verdict for plaintiff on finding malice alone, and ignoring the element of want of probable cause, is erroneous; the rule that an instruction covering plaintiff’s case .need not exclude an affirmative defense, but may leave such defense to be covered by defendant’s instructions, not applying.</p> <p>S. MALICIOUS PROSECUTION: Want of Probable Cause. Probable cause is not an affirmative defense to a suit for malicious prosecution, but want of probable cause is a necessary ingredient of plaintiff’s case.</p> <p>4. -: Burden of Proof, The burden of proving want of probable cause is on plaintiff.</p> <p>5. -: Want of Probable Cause:. Discharge by Justice of Peace: Question for Jury. Discharge of plaintiff by justice of the peace from the criminal charge makes a prima-facie case of want of probable cause, and is generally sufficient evidence to carry the question of malice to the jury.</p> <p>6. -: Want of Probable Cause: Discharge by Justice of Peace. Although the discharge by the examining magistrate makes a prima-facie case in a suit for malicious prosecution, yet, when the defendant goes forward and puts in the countervailing evidence tending to show probable cause, this presumption disappears, and the evidence may so - completely overcome the primafacie case as to warrant a directed verdict for defendant.</p> <p>7. EVIDENCE: Presumption Where Facts are Disclosed: Want of Probable Cause: Discharge by Justice of Peace. After tlie facts as to want of probable cause are in evidence and there is any conflict, the jury should determine that question unhampered as to any presumption from plaintiff’s having been discharged by the justice of the peace from the criminal charge.</p> <p>8. TRIAL: Instructions: Presumptions. Where there is conflict in the evidence, as to presumption of want of probable cause arising from discharge of the plaintiff by the justice of the peace from the criminal charge, it is improper to charge that the law draws this presumption, since to be told that the law presumes want of probable cause from such facts is calculated to impress the jury that the discharge is conclusive on want of probable cause and ends further inquiry.</p> <p>9. CHATTEL MORTGAGES: Disposing of Mortgaged Property. The gist of the offense of mortgagor’s selling mortgaged chattels, denounced by Revised Statutes 1909, section 4570, is the intent and purpose to defraud.</p> <p>10. -: -. Although title of purchaser of mortgaged personalty may be good as against mortgagee verbally consenting to the sale, yet, under Revised Statutes 1909, section 4570, making it an offense for mortgagor to sell without the written consent of the mortgagee, the verbal consent of the mortgagee is not a '' complete defense, although it is a potent factor in determining whether there is a fraudulent intent on the part of the mortgagor.</p>

<p>1. PLEADING: Sufficiency of Petition after Verdict: Injury to Servant. A complaint alleging that plaintiff was injured in operating a defective cotton gin, through which defendant negligently started wet cotton, and this and the defects described combined to start a fire in trying to extinguish which plaintiff was injured, held not fatally defective after verdict, in that casual connection between the negligence and injury is not sufficiently alleged.</p> <p>2. MASTER AND SERVANT: Injury to Servant: Contributory Negligence: Servant’s Knowledge of Dangerous Machinery. . An experienced gin operator who is acquainted with the machinery, which he does not attempt to stop, and who knows the location of the revolving saws and the danger of contact therewith, is negligent in thrusting his gloved hand into a narrow space next to the saws in an attempt to catch cotton dropping therein.</p> <p>3. -: Contributory Negligence: Attempt to Save Property. A person guilty of contributory negligence, not amounting to rashness, is excusable therefrom if the negligent act is for the purpose of saving life or limb of a third party; but not so, if for the purpose of saving property.</p> <p>4. -: Injury to Servant: Attempt to Save Master’s Property: Contributory Negligence. An experienced cotton gin operator, injured by contact with the revolving saws of the machine, which he did not attempt to stop, held guilty of contributory negligence in thrusting his gloved hand in a narrow space next to the saws in attempting to grab burning cotton therein to save his employer’s property from fire caused by employer’s negligence in starting wet cotton through the machine. Bradley, J., dissenting.</p> <p>On Motion for Rehearing.</p> <p>5. APPEAL AND ERROR: Reversal of Judgment for Plaintiff: Necessity of Remanding. A judgment for plaintiff should not be reversed without remanding unless the evidence has been fully presented, and the court is fully convinced that the facts are necessarily such that plaintiff cannot be allowed to recover.</p>

<p>1. CARRIERS: Injuries to Passengers. In railroad passengers complaint for personal injury only general allegations 'of negligence are required.</p> <p>2. -: -: Presumption: Burden of Proof. Where plaintiff railroad passenger proves an accident and resulting personal injury, a presumption of negligence arises, and defendant has burden of rebutting such inference.</p> <p>3. EVIDENCE: Burden of Proof. When one party has burden of proof, the evidence produced by the other may lift or lighten the load.</p> <p>4. CARRIERS: Injury to Passengers: Pleading and Proof. If a railroad passenger alleges injury because of specific acts of negligence, plaintiff must assume burden of proof and prove such specific negligence.</p> <p>5. -: -: Petition. Allegations that plaintiff passenger was injured by á cinder from a passing locomotive hitting his eye, due to defendant’s negligence, held to plead negligence generally, and not specifically.</p> <p>6. ' -: -: F lying Cinders: Negligence. A railroad was not negligent in failing to screen passenger coach windows to prevent cinders from injuring a passenger.</p> <p>7. -: -: Presumption. Where plaintiff passenger, sitting near coach window, was injured by a cinder from locomotive on another track, defendant railroad was presumptively negligent, and has burden of showing contrary.</p> <p>8. -: -: Evidence. Evidence held to sustain finding that cinder which injured plaintiff passenger came from defendant’s locomotive, which was passing on another track.</p> <p>9. APPEAL AND ERROR: Reversible Error: Instructions. That appellant secured an instruction which' was too favorable to it, and which conflicted with another instruction, is not reversible error.</p> <p>10. TRIAL: Instructions: Definition . of Term. In passenger’s personal injury action it is not erroneous to use the words “negligence” without defining it.</p>

<p>1. INSURANCE : Life Insurance: Premiums: Payment. Where note was given for the first annual premium on a life policy, held that the policy took effect and remained in force until the note became due and default was made'in payment.</p> <p>2. -: -: --: -. It is competent for a life policy to provide that nonopayment of a premium note shall render the policy void, or suspend it during default, and that there shall be no liability for loss occurring after' default and before the policy is reinstated by payment.</p> <p>3. -: -: Policy: Payment. Where an insurance company took a note for the first annual premium, a part payment on the note does not prevent a forfeiture nor does a part payment which was no more than the amount of the premium already earned constitute a waiver of the insurer’s right to assert that the policy had been forfeited for nonpayment of the premium note.</p> <p>4. -: -: Contracts: Payment. Where an insurance agent who accepted a note for the first annual premium payable to himself made settlement with the company for the amount in excess of. that which he was entitled to retain as commission, thereby treating the note as his own, held that, though the insured defaulted, paying only a portion of the amount due on the note, the policy became and remained in force during the first year, so that recovery could be had on insured’s death within that period.</p> <p>5. -: “Military Service.” Under a life policy providing that if within five years from its date the insured shall engage in any military or naval service, the liability of the company shall be limited to the return of the premiums paid, etc., an insured must be deemed to have entered military service when he has passed the required examination, taken oath, been enrolled, and has submitted himself to the order of the military authorities.</p> <p>6. - — : -. Where a life policy provided that if insured shall-engage in military or naval service in time of war the liability of the company in event of death while so engaged, or within six months thereafter, as a result of such service, shall be limited to the return of the premiums, it devolves on the company, in the event of the death of insured while in military service, to prove that his death occurred while so engaged, and that death resulted from or was caused by such service.</p> <p>7. -: Life Insurance: Defenses: “Line of Duty.” In an action on a life policy, mere proof that insured while in military service at a training camp was killed by accidental gunshot wound at the hands of a fellow soldier, and that he died in line of duty, which means that he was not violating any military law, is insufficient to' show that insured met his death as the result of military service, and so to defeat recovery under the provisions of the policy excepting such risk.</p>

<p>1. LANDLORD AND TENANT: Unlawful Detainer: Jurisdiction. An unlawful detained case must originate in the justide court, and the circuit court has only appellate jurisdiction.</p> <p>2. -: -: Appeal: Time: “During Term.” “Vacation.” Under Revised Statutes 1909, section 7705, as to appeal in unlawful detainer, a judgment, rendered during a temporary adjournment or recess of the circuit court from- Decemoer 8th to January 10th, following, was rendered “during tlie term” of the circuit court, and not “in vacation,” and therefore appeal therein was returnable within six days after judgment rendered in justice court.</p> <p>8. TIME: Unlawful Detainer: Appeal. Under Revised Statutes 1909, sections 7705, 8057, subdivision 4, where judgment in unlawful detainer was rendered in justice court December 27, 1915, in order for the justice to have had the authority to grant appéal therefrom, the affidavit for appeal and appeal bond must have been filed with him on or before the 1st day of the following January, which was a, Saturday.</p> <p>4. LANDLORD AND TENANT: Unlawful Detainer: Code. The law governing forcible entry and detainer is a code unto itself, and its mandatory requirements must be strictly observed.</p> <p>5. -: -: Appeal. Where in unlawful detainer case appeal bond was not filed in time, the mere fact that the justice recited in his docket that the appeal was granted did not make it an appeal; his authority being limited by the statute which did not authorize appéal, except where bond is filed in time.</p> <p>6, -: -: -. Where plaintiff’s appeal bond in unlawful detainer case was not filed in time, the fact that defendant appeared and tried out the pretended appeal in the circuit court ?nade no difference, because an appearance under such-circumstances will not confer jurisdiction.</p> <p>7. JUSTICES OF THE PEACE: Appeal Bond: Liability Where appeal in unlawful detainer case was not taken within the time required by Eevised Statutes 1909, section 7705, the appeal bond therein was void, and did not bind the sureties thereon, although they signed it voluntarily.</p>

<p>1. LANDLORD AND TENANT: “Sublease:” “Assignment.” In a “sublease” proper, the sublessor retains some right or interest in the premises leased; while in an “asignment” proper, the assignor parts with all his interest whatever in the property demised.</p> <p>2. -: Assignments: Effect. A lessee’s assignment of his entire interest does not create privity of contract between the lessor and assignee, even if the lessor assents to the assignment and accepts the assignee as his tenant.</p> <p>3. -: -: -. An assignment by a lessee of his entire interest in the demised premises creates privity of estate, if the landlord expressly or impliedly assent to the assignment.</p> <p>4. -:-:-. Since, in case of an assignment by a lessee, the relationship between the landlord and assignee is by privity of estate, instead of contract, only such covenants in the original lease as run with the land are binding.</p> <p>5. -: Agreement to Drain: Assignment. An agreement by a lessor of farm land to drain the same is one that inures to an assignee of the leasehold or runs with the land, since it is vital to enjoyment and use of the premises; so, where the lessor failed to carry out his agreement and the assignee was damaged, the assignee may, the assignment having been recognized, recover.</p> <p>6. -: Landlord’s Consent: Waiver: Assignment. Revised Statutes 1909, section 7880, providing that a lease for less than -two years cannot be assigned or transferred without the written assent of the landlord, is for the benefit of the landlord and may be waived by him.</p> <p>7. -: Assignment: Ratification. As Revised Statutes 1909, sec- - tion 7880, providing that a lease for less than two years cannot be assigned or transferred without the written assent cf th'e landlord, may be waived, a landlord who sued the assignee of such a lease must be deemed to have assented to the assignment, where the petition set up and relied on the assignment, for the landlord might have asserted the remedy of ouster given by section 7881, or he might, under section 7900, have sued both the lessee and assignee jointly.</p>

<p>1. DRAINS: Reassessment: Power of Court. Revised Statutes 1909, section 5599, providing for confirmation of drainage ditch taxes by county court, and making same a lien on the land, and section 5602, providing for entry of confirmed ditch assessment upon the books by the county clerk, do mot authorize subsequent re-assessments of the annual rate by the court court.</p> <p>2. -: Fixing Annual Assessments: Modification. Where a county court modified and confirmed the final report of the viewers and engineers of a drainage district, and fixed the annual rate per centum assessment thereon, it became a final judgment, and when the court adjourned for that term it no longer had authority to modify such judgment.</p> <p>3. COURTS: County Courts: Missouri: Jurisdiction: Statute. A county court possesses no powers, except those conferred by statute.</p>

<p>1. CRIMINAL LAW: Appeal: When Perfected. An appeal is not perfected until an appellant has filed in the appellate court a full and complete transcript, unless the appeal is based on some error appearing in the record proper; and Laws 1911 p. 139, relating to time of allowance and filing of bill of exceptions, ap plies to criminal as well as civil cases.</p> <p>2. -: Appeal in Misdemeanor Cases: Time for Perfecting. Defendants, convicted of lewd and lascivious cohabitation under Revised Statutes, section 4729, had, in view of Laws 1913, p. 226, • six months within which to perfect appeal, a misdemeanor appeal not being returnable as a civil appeal.</p> <p>3. -: Delay in Perfecting Appeal: Excuse. Although appeal was not perfected within six months, as provided by Laws 1913, p. 226, Ji,e,ld that State’s motion to dismiss would be overruled, in view of explanation, of the delay, and fact that motion to dismiss was not filed until long after appeal had been perfected.</p> <p>4. LEWDNESS: Lascivious Cohabitation: Elements of Offense. To establish the offense of lewd and lascivious cohabitation, under Revised Statutes 1909, section 4729, it is necessary to prove that at least one of defendants was a married person during the period of cohabitation.</p> <p>5. -: —¡-: Marriage: Evidence: Sufficiency. In prosecution under Revised Statutes 1909, section 4729, against a man and a woman for lewd and lascivious cohabitation, evidence held sufficient to show that the woman was married and had a husband living during the period of cohabitation.</p> <p>6. '-: -: How Proved. In prosecution under Revised Statutes 1909, section 4729, against a man and a woman for 'lewd and lascivious cohabitation, marriage may be established by eyewitnesses, by the record or marriage certificate, oy admission, or by cohabitation and a holding out, indicating that the marriage status exists, but mere matter of repute or testimony derived therefrom is insufficient.</p> <p>7. WITNESSES: Lascivious Cohabitation: Testimony of Defendant’s Husband. In prosecution under Revised Statutes 1909, section 4729, against a man and a woman for lewd and lascivious cohabitation, the woman’s husband was incompetent to give evidence of facts against her which would tend to establish her guilt, if the evidence related to a time when the marriage relation existed. -</p> <p>S. -: -: -: Admissibility. In prosecution under Revised Statutes 1909, section 4729, against a man and a woman for lewd and lascivious cohabitation, the mere fact that tlie woman and her husband were at the time of trial divorced would not make the husband a competent witness to testify against his former wife.</p> <p>9. CRIMINAL LAW: Admission of Incompetent Testimony: Reversible Error. In prosecution under Revised Statutes 1909, section 4729, against a man and a woman for lewd and lascivious cohabitation, permitting the' woman’s husband to testify with reference to whether she was married during the period of cohabitation, held not reversible error, where there was other competent evidence to support the verdict.</p>

<p>1. PARTNERSHIP: Existence: Question of Law. Where facts are not in dispute and contract is in writing, the question of partnership or no partnership is one of law.</p> <p>2. MINES AND MINERALS: Partnership: Creation: Conditional Assignment of Interest in Mine Lease. Assignment of half interest in mining lease, conditioned upon assignee’s acceptance upon inspection of mining property after dewatering of mine, and under agreement whereby assignee in the event of acceptance was to share in net profits pending acceptance, expenses to be borne by assignor, did not create partnership relation making assignee liable for coal bought by assignor for use in dewatgring mine, though consideration was paid before dewatering was completed.</p> <p>3. -: -: Existence: Estoppel. Assignee, being engaged in business in another State,-any paying no attention to the dewatering, could not he held liable for the coal as a partner, on ground of estoppel.</p> <p>4. PARTNERSHIP: Existence as to Third Party. Partnership exists as to third party only where it exists between the parties themselves, except where alleged partner held himself out as such.</p> <p>5. -: Intention. Whether a contract creates a partnership re: lationship depends upon the intentions of the parties.</p> <p>6. -: Creation: Contract. Partnership relation is created only by contract, and does not arise by operation of law</p> <p>7. -: Existence: Name Given Arrangement. If the terms of the contract existing between the parties do not constitute a partnership, none will be declared, even' though the parties call the arrangement.</p> <p>8. EVIDENCE: Best Evidence: Existence of Partnership. The best evidence of the existence of a partnership consists of the agreement or contract between the parties, but it may be proved by any competent evidence.</p> <p>9. PARTNERSHIP: Existence: Proof. As between the alleged partners themselves, the fact of partnership cannot be established by proof of independent facts from which the principal fact is infer-able, in the absence of direct evidence o£ a purpose to form a partnership.</p> <p>10. --:-: Joint Owners. Joint owners or tenants in common of property, real or personal, do not become partners in absence of contract, though they participate in profits or losses arising from such ownership.</p> <p>11. MINES AND MINERALS: Partnership: Existence: Proof: Parties in Suit. Where contract between such parties negatived any inference of partnership in mining business, the fact that they were joined as joint owners of the lease in suit against lessor was of very little importance in determining whether partnership existed.</p>

<p>1. HIGHWAYS: Questions: Contributory Negligence. In action for damages to automobile which collided with defendant’s automobile at intersection of two highways, whether plaintiff was guilty of contributory negligence held for jury.</p> <p>2. NEGLIGENCE: Contributory Negligence: Question for Jury. Where evidence of contributory negligence is such that reasonable minds might reach different conclusions, question becomes one of fact for jury.</p> <p>S. MASTER AND SERVANT: Injuries to Third Persons: Liability of Master. To render master liable for injuries to third person occasioned by negligence of servant, negligent act must have been within scope qf servant’s employment.</p> <p>4. -:-: -. Where contract of employment of foreman did not require master to furnish him transportation to and from his meals, and it was mere accomodation to lend him automobile ,to go to and from his meals while his own car was out of order, master was not liable for his negligence in use of automobile on highway while going for a meal.</p>

<p>1. MASTER AND SERVANT: Injury to Employee: Operation of Derrick: Incompetent Operator. In action for injuries to employee from unskillful operation of derrick by incompetent engineer, plaintiff must prove that engineer did not possess reasonable skill or competency, and also that employer knew, or by the exercise of ordinary care could have known, of such want of skill.</p> <p>2. EVIDENCE: Master and Servant: Unskillful Operation of Derrick Engine: Opinion Evidence. In employee’s action for injuries from employer’s negligence in permitting unskilled engineer to operate derrick, incompetency of engineer can be shown by persons experienced in similar machinery, who knew engineer’s experience either from having it imparted hypothetically, or from contact or observation, or by showing the extent of his experience and the manner in which the engine was operated at the time of the accident.</p> <p>3. MASTER AND SERVANT: Unskilled Operation of Derrick Engine: Jury Question. In action to recover for injuries resulting from employer’s negligence in employing unskilled and incompetent derrick engine operator, evidence held sufficient for submission to the jury of the question of whether the operator was incompetent.</p> <p>4: -: Incompetent Fellow Servant: Jury Question. Evidence, in such case, held sufficient for submission to jury of question of whether master exercised necessary care to ascertain operator’s fitness before permitting him to operate engine.</p> <p>5. -: Presumptions: Selection of Servants. Master is presumed to exercise due care with reference to fitness in selecting servants.</p> <p>C. -: Employment of Competent Help: Master’s Duty. Lumber company unloading logs from railroad cars by means of a derrick was required to exercise ordinary care to secure a reasonably competent and skillful derrick operator.</p> <p>7. TRIAL: Demurrer to Evidence: Admissions. A requested instruction, in the nature of a demurrer, admits the truthfulness of every material fact, which the evidence tended to prove, as well as every reasonable inference deducible therefrom.</p> <p>8. -: -. Defendant’s demurrer to the evidence should not be sustained when the evidence considered in its most favorable light for plaintiff is such that reasonable minds may differ, as to plaintiff’s right to recover.</p> <p>9. MASTER AND SERVANT: Assumption of Risk. Assumption of risk is founded upon contract, and presupposes that there are « some dangers incident to the employment the servant is about to enter, and these dangers are what the servant assumes.</p> <p>1C. -: -: Incompetent Derrick Operator. An incompetent operator of derrick unloading logs from railroad car to lumber yard is not a danger incident to working in the yard as a tonr hooker.</p> <p>11. -: -: Negligence of Master. Where a lumber company created a dangerous condition by negligently permitting . an incompetent operator to be in charge of the derrick unloading logs from train, the company is liable for an injury to employee engaged in unhooking logs from tongs, as a result of such .incompetence; the employee not having assumed risk created by master’s negligence.</p>

<p>Appeal from Stoddard County Circuit Court. — Hon. W. S. G. Walker, Judge.</p>

<p>1. APPEAL AND ERROR: Motion in Arrest: Verdict: Excessive Amount. On appeal taken under Revised Statutes 1909, sections 2040, 2041, an error complained of, that the amount of the verdict is in excess of the damages prayed for in that count, is reviewable, without the formality of a motion in arrest under section 2o81.</p> <p>2. -: Harmless Error: Verdict. No reversible error was shown, and the judgment will be sustained in view of Revised Statutes 1909, sections 1850, 2.082, and 2119, prohibiting reversal for trror not prejudicial, where the jury, in rendering a verdict, confused two counts, claiming different amounts, returning a verdict in each for the damages demanded in the other; the total recovery not exceeding the aggregate of the amounts claimed in the petition.</p>

<p>Appeal from Dent County Circuit Court. — Hon. L. 13. Woodside, Judge.</p>

<p>Appeal from Newton County. Circuit Court. — Hon. Chas. L. Henson, Judge.</p>

<p>1. APPELLATE PRACTICE: Pleading: Answer: General Denial: Unpleaded Defense Cannot be Considered on Appeal. In an action by an attorney to recover for services rendered, an affirmative defense that plaintiff acted in a dual capacity as attorney for the trustee in bankruptcy and also at attorney for the claimant, etc., cannot be considered in the appellate court where the answer in the case raised no such issue, but is a mere general denial.</p> <p>2. INSTRUCTIONS: Invited Error. In an action by an attorney to recover for services rendered a claimant in a bankruptcy proceeding, an instruction offered by defendant to the effect that if the jury found from the evidence that at the time said services were rendered plaintiff was also attorney for the trustee in bankruptcy, and accepted pay from said trustee for services rendered by him as attorney for said trustee, the plaintiff is not entitled to recover on account of services so rendered by plaintiff in connection with the proof of said claim, while improper, it was an error invited by defendant and'plaintiff did not appeal.</p> <p>3. ATTORNEY AND CLIENT: Action for Services: Evidence. In an action by an attorney for services rendered a claimant in a bankruptcy proceeding, held it was not error to admit evidence of the fact that the dividend had been collected and its amount.</p> <p>4. -: -: Value of Services: Evidence. In an action by an attorney for services rendered a claimant in a bankruptcy proceeding, one item of which was for services in preparing, filing and having allowed by the referee in bankruptcy a claim, etc., for which a charge is claimed of $167.43 for this service, held it was not error to exclude testimony that a notary would prepare a notice of a claim for fifty cents.</p>

Louis. . — Hon. Victor H. F alkenhainer} Judge. (1) An appeal lies to review the finding and decision of a trial court with respect to allowance of alimony pendente lite to the wife in her divorce suit. Sec. 2380, Yol. I, R. S. 1909; Adams v. Adams, 49 Mo. App. 592; State ex rel. v. Seddon, 93 Mo. 520; Marx v. Marx, 94 Mo. App. 172.

<p>1. CARRIERS: Carriers of Freight: Interstate Commerce: Unlawful to Charge Less Than Published Rate. The amount of the lawful charges for the transportation of freight in interstate commerce having been fixed by schedules of rates legally published pursuant to the act to regulate commerce and the amendments thereto (Act June 29, 1906, ch. 8591, 34 Stat. at L. 586, sec. 2), it was unlawful for the plaintiff to charge or for the consignee to pay, any less than the lawful rates; neither rebates, concessions nor other deviations from the approved and published tariff rates being allowed. (Act Feb. 19, 1903, 32 Stat. at L. ch. 708, p. 847, U. S. Comp. St. Supp. 1911, p. 1309).</p> <p>2. -: -: -: Consignee Charged With Knowledge of Published Rates. A consignee of an interstate shipment is charged # with knowledge that the rate fixed in the schdule of rates filed and published under the acts of Congress is the only lawful rate.</p> <p>3. -: -: -: Consignee Prima Facie Liable for Undercharge of Freight. The consignee, and not the consignor, is primafaeie liable for the payment of under charges of fi eight because he has entered into a contract of shipment with the carrier.</p> <p>4. -: -: -: Consignee Liable to Pay Freight Charges: No Express or Implied Promise Necessary. There need not be an express promise on the part of the consignee to make him liable for freight charges or an implied promise arising from his acts in inducing delivery to him without payment of the charges; the mere acceptance and removal of the goods by the consignee, with knowledge that the carrier is giving up his lien for his charges, creates an obligation to pay charges beyond the amount stated.</p> <p>5. -: -: -: -: No estoppel Against .Carrier. Where the consignor has agreed to deliver goods to the consignee f. o. b. at the place of destination, and the consignee has paid freight rates for the carriage of the same less than those fixed by law, the consignee is liable for the difference between the amount paid and the amount fixed by law, and there can be no estoppel ■ against the carrier as the acts of Congress negative any such claim; and the fact that the consignee has settled with the consignor on the lower rate and that the latter is’ insolvent, does not change the situation as between the former and the carrier.</p>

Louis. — Eon. Leo 8. Bassieur, Judge. It is submitted that it was prejudical error as against appellants to admit evidence of a special custom in boring wells- in Oklahoma. In this case no issue concerning such custom was raised by the pleadings. A special custom must be pleaded where such custom is relied upon to take the case out of the general rules of law.

Louis. —Hon. William T. Jones, Judge, (1) The rule in Missouri is that where plaintiff has, by a negligent act on his part, directly contributed to his own injury, he may not recover, regardless of how his carelessness compares with the other contributing causes of the injury. Newton v. Wabash Railroad Company, 152 Mo. App. 67; Burnett v. Railroad Company, 172 Mo. App. 51; Schmidt v.- St. Louis Railroad Company, 149 Mo. 287; Rogers v. Packing Company, 185 Mo.

Louis. —Hon. Thomas G. Hennings, Judge. It is not admissible where plaintiff, before his employment by defendant, had been employed by others to sell goods of a similar character with those he was employed to sell for defendant to give evidence as to the amount of his damages, earnings while .in the employ of such other firms and as to the amount of his sales for them for the purpose of showing prospective profits which he might have made under his contract with the…

Louis. —Hon. W. M. Kinsey, Judge. (1) There can be no mechanic’s lien against public works. Abercrombie v. Ely, 69 Mo. 23. (2) The purpose of the statutory and contract provisions for the payment of labor and .materials on public works is to give the claimant the same protection he would have were the work private and therefore lienable. St. Louis etc., v. Construction Co., 174 Mo. App. 555; City of Alpena v. Title Guar. Co., 159 .Mich. 329.

<p>Appeal from the Circuit Court of the City of St. Louis; —Hon. J. Hugo Grimm, Judge.</p> <p>(1) The allegata and probata must correspond. Reed v. Bobb, 100 Mo. 62; Dorothy v. Atkins, 78 Mo. 186; Baldwin v. Whaley, 81 Mo. 416; Ross v. Ross, 81 Mo. 84; Newan v. Kenton, 79 Mo. 3827 (2) Associations and clubs, the object of which are social or political, and not for purposes of trade or profit, are not partnerships, and pecuniary liability can be fixed upon the individual members of such associations only . by reason of the acts of such individuals or of their agents, and the agency must be made —none is implied, from the mere fact of association. Richmond v. Judy, 6 Mo. App. 467. (3) There is no evidence in this case that the defendants conspirted to injure the plaintiff, and there is no evidence in the case that they authorized or directed anyone fo do anything in connection with plaintiff’s employment by the St. Louis Roofing Company. (4) There is no evidence in this case that Patrick Garvey, by virtue of his office as business agent, had authority to call a strike or to interfere in any manner with the work of the plaintiff. (5) The court should have instructed the jury that the members of the association were not liable for the wrongful acts of Patrick Garvey unless they had knowledge of such wrongful acts and either directed him in the performance of the same or approved of their commission . (6) The court should have instructed the jury that there was no evidence tending to prove that the defendants were guilty of any malicious act against the plaintiff. (7) Plaintiff’s instruction as modified by the court should not have been given because there- was no evidence the case that Garvey was acting within the scope of the authority conferred upon him by local Union No. 1 as its business agent if he caused the St. Louis Roofing Company to rescind its contract with plaintiff or if he caused it to discharge plaintiff from its employ. (8) Defendants could not be liable for the acts of Patrick Garvey unless he had express authority as the agent of the union to act witr reference to the plaintiff’s working for the St. Louis Roofing Company. (9)' There is no evidence in the case that the defendans’ either directly or indirectly, authorized Patrick Garvey to order a strike or prohibited the members of the union working for the St. Louis Roofing Company. (19) The punitive damages are grossly excessive and the result of bias, prejudice and passion.</p> <p>(1) Every member of Local Union No.l is liable in damages to any person who suffers loss through the enforcement of its written or unwritten rules which provide that no man can work as a roofer in any union shop in St. Louis unless he is a member of their union or unless he is otherwise satisfactory to it. Purington v. Hinehcliffe, 219 111. 159; Doremus v. Hennessy, 176 111. 508; Eddy on Combinations, pars. 368, 376 and 380; Giblan v. National Amalgamated. Laborers’ Union, 2 K. B. (1903) 600; Taff Yale Railway v. Amalgamated Society, 1901 Appeal Cases 426; Walsh v. Master Plumbers, 97 Mo. App. 292; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421; Lawler v. Loewe, 235 U. S. 522; Sutton 1. Workmeister, 164 111. App. 105; Irving v. Neal,-209 Federal Rep. 471. (2) To cause the breach of a contract by threats of a strike , against one of the contracting parties is an actionable wrong. Clarkson v- Laiblan' et al., 178 Mo. App. 708; Berry v. Donovan (Mass.), 5 L. R. A. (N. S.) 899; Quinn v. Leathern, 1901 Appeal Cases 495; Curry v. Galen, 152 N. W. 33; Brennan v. United Hatters, 9 L. R. A. (N. S.) 254; Luecke v. Clothing Cutters, 19 L. R. A. 408; Giblan v. Amalgamated Union, 2 K. B. (1903) 600; Thomas v. C. N. O. Ry., 62 Federal Rep. 803; Moore v. Bricklayers’ Union, 23 Weekly Cincinnati Law-Bulletin 48; Foundry Co. v. Moulders Union, 177 Mo. App., 84; Sutton v. Workmeister, 164 111. App. 105; London Guaranty Co. v. Horn, 101 111. App. 335, and 176 Illinois Supreme 608; Wilner v. Silverman, 109 Maryland Rep. 341; Illinois Steel Co. v. Brenshall, 141 111. App. 36; Gibson v. Fidelity Company, 232 111. Sup. 49; Huskie v. Griffin, 75 N. H. 345; Hey v. Wilson, 232 111. 389; Reed v. Friendly Society of Stone Masons, 2- K. B. (1902), page 88; Booth v. Burgess, 65 Atlantic' Reports 226; Lohse Patent Door Oo. v. Fuehle, 215 Mo. 421; Carter v. Oster, 134 Mo. App. 146; Swain v. Blackmore, 75 Mo. App. 74; Daily v. Cantwell, 30 Mo. App. 524, and 40 Mo. App. 44; Beekman v. Marstens, 195 Mass. 205. (3) Combinations between officers and members of a labor union having for their direct object the immediate effect to injure and damage the business of persons at whom they are directed and thereby compel them to discharge their non-union employees 'and replace them with members of the union, and thereby incidentally and indirectly to benefit the parties to the combination, are unlawful. Lohse Patent Door Co. v. Fuelle, 215 Mo. 421; Clarkson v. Laiblan, 178 Mo. App. 708. (4) When a business agent acts within the scope of his employment and the organization’s purposes, all the defendants are liable for his wrongful acts. Clarkson v. Laiblan, 178 Mo. App. 708; Lawler v. Loewe, 235 N. S. 522; Hitchcock v. Mitchell et ah, 245 U. S. 229; Irving v. Neal, 209 Fed. Rep. 471; Sutton v. Workmeister, 164 111 App. 105; Alaska S. S. Co. v. International Longshoremen’s Union, Misc. 388; G-iblan -v. Nat. Amalgamated Union (1903), 2 K. 699; 1 British Ruling Cases, page 553.</p>