Volume 203 — Missouri Appeal Reports

Louis. — Hon. Thomas C. Hennings, Judge. (1) The courts will not countenance fraud on the part of a plaintiff in obtaining jurisdiction over defendant. Christian v. Williams, 111 Mo. 429, 443; Marsh v. Bast, 41 Mo. 493; Capital City Bank v. Knox, 47 Mo. 334; Byler v. Jones, 79 Mo. 261. (2) Defendant was entitled to a jury trial of the issue of fact presented by his plea to the jurisdiction.

<p>1. NEGLIGENCE: Licensee: Invitee: Visitor to Packing Plant for His Own Benefit a Licensee. Where plaintiff, a member of an observation class of students, was merely permitted an opportunity to go through the several departments of defendant’s plant at the special request of the instructor of their class, and it appears that the sole object of the visit was the instruction of the students and not for any business of the defendant, held that plaintiff must be regarded as a bare licensee and not as an invitee.</p> <p>2. -: -: Duty of Owner of Premises Toward Licensee Defined. Packing plants such as that conducted by the defendant can in no wise be viewed as places of public entertainment, and those who obtain permission, out. of curiosity or desire to instruct themselves as to the processes of manufacture, to visit such plants, must take the premises as they find them; such visitors being bare licensees, they enjoy such license with its concomitant perils and subject to the risk of pitfalls or other obstructions incident thereto, the owner being liable only for concealed or hidden traps, etc., put out to injure them, or any form of willful, illegal force used towards them.</p> <p>3. -:-: Failure of Owner of Packing Plant to Warn Licensee of Danger Not Negligence. Failure to warn plaintiff that a crane was about to be moved toward him or to take any precaution to avoid plaintiff being struck by such crane or from falling into a vat of scalding water as he endeavored to prevent being struck, where plaintiff saw the approaching crane when it was some thirty feet from him and had previously watched the operation of the crane and had allowed it to pass over him a short time before, when he Was standing in another part of the same room, and it did not appear that defendant’s employee, who was pushing the crane, acted willfully, wantonly, intentionally, or recklessly in doing his work, but was doing the work of that particular department in which plaintiff stood at the time he met his injuries, in the ordinary and usual manner of conducting same, held that plaintiff, being a bare licensee, failed to make out a case for the jury.</p>

<p>1. CORPORATIONS: Misapplication of Corporate Funds by Officers: Corporate Checks for Personal Obligations: Liability of Payee. Prior to the provisions of Laws of 1917, p. 143, one accepting corporate checks drawn by an officer thereof in payment of his private obligations took the risk of being required to restore the proceeds thereof in the event the corporate funds were thereby misapplied.</p> <p>2. -: -: -: Evidence: Burden of Proof on Payee. Where defendant admits that it has received corporate checks drawn by an officer in payment of his private obligations, the burden of showing such officer’s authority to draw upon the corporate funds for private purposes is upon the defendant.</p> <p>3. - :-: -: Notice: Checks Carry Notice of Irregularity on Face. Corporate checks which the defendant admits receipt of in payment of the individual indebtedness of an individual officer of the plaintiff company, and not in payment of any indebtedness of the plaintiff to the defendant, carry upon their face notice of the irregular and illegal character thereof.</p> <p>4. -: -: -: Evidence: Directed Verdict. Evidence that an officer of plaintiff corporation had drawn corporate checks for payment of his personal obligations in favor of defendant, etc., held to sustain a directed verdict for plaintiff.</p> <p>5. Interest: Recoverable on Misapplied Corporate Checks. In an action to recover, as for money had and received, the amounts of checks which an officer of plaintiff corporation had wrongfully checked out to defendant in payment of his personal obligations, plaintiff may recover interest on the amount of the respective checks from their respective dates under section 7179, Revised Statutes 1909.</p>

Louis. —Hon. Kent K. Koerner, Judge. (1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested by defendants at the close of the whole case should have been given, (a) No negligence in the running of the train was shown. In the absence' of statutory or ordinance regulation fixing a speed limit, no rate of speed over a public crossing is negligence per se. Maher v. Railroad, 64 Mo. 267, 275; Burge v. Railroad, 244 Mo. 76, 103.

Louis. —Hon. Thos. G. Hennings, Judge. (1) (a) When property is vested in one person merely in trust for another, it is a simple or dry trust, and the beneficiary is entitled to the actual possession and enjoyment of the property and a court of equity will enforce such by decree. 2 Perry on Trusts (6 Ed.), p. 847; 2 Perry on Trusts, sec. 521; Lewin’s Law on Trusts (12 Ed. Dale & Streeten), chap. 2, p. 16; Atkins v. Atkins, 70 Yt. 565, 41 Atl. 503; Guild v. Allen, 28 R. I.…

<p>1. PLEADING: Negligence: Petition Charging Specific Acts of Negligence Rule of Res Ipsa Loquitur Does Not Apply. Where the assingnment of negligence in the petition is that the defendant so carelessly and negligently drove said machine that it turned completely around, etc., this is so far a specific charge of negligence as to take it out of the rule of res ipsa loquitur in that it charges negligent driving.</p> <p>2. -: -: -: Automobiles: Charge of Negligent Driving Confines Evidence to That Charge. Where a general allegation of negligence is followed by an enumeration and averment of specific acts of negligence the plaintiff will be held to prove the negligence specifically assigned.</p> <p>3. INSTRUCTIONS: Modified Instruction: Party Cannot Attack Instruction Given at Own Request. Where, at the request of plaintiff, the court gave an instruction which told the jury that if the accident was due to the failure on the part of defendant to use ordinary care in driving the automobile then they should find for plaintiff, and plaintiff requested a second instruction entirely inconsistent with the first instruction which the court modified in an endeavor to make it consistent with the instruction given, plaintiff was not in a position to attack instructions asked and given at her own request.</p>

Louis. —Hon.. Thos. G. Hennings, Judge. (1) (a) Relator’s petition failed to state, and his evidence failed to prove, a cause of action on the bond in suit, because there was neither an averment, nor evidence, of the essential fact, that relator relied on the false certificate of acknowledgment being genuine, which Crone affixed to the deed of trust in question, or that he was thereby induced to purchase the principal promissory note which said deed purported to secure.

<p>1. BILLS AND NOTES: Indorser: Evidence: Intention to he Bound in Other Capacity Non Indorser Must Appear From Instrument. Under section 10033, Revised Statutes 1909, providing that a person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to he an indorser unless he clearly indicates hy appropriate words his intention to he hound in some other capacity, no matter what prior dealings were had between the parties, such intention to he hound in another capacity may he made to appear only hy appropriate words written upon the instrument itself.</p> <p>2. -: -: Notes Not Made for Accommodation of Indorser: Indorser Released hy Failure to Make Fresentment and Give Notice of Dishonor. Where it appears that the notes were not made for the accommodation of the indorser, even though the indorser was interested in the transaction, he was not an accommodated party within the meaning of sections 10050 and 10Ó-85, Revised Statutes 1909, as to presentment for payment and notice of dishonor, since an accommodation is an arrangement or engagement made as a favor to another not upon a consideration received, and such indorser was released from liability hy plaintiff’s failure to make due presentment of the paper and to give due notice of its dishonor.</p>

<p>1. COMMON CARRIER: Potatoes: Freezing: Negligence: Act of God. A shipper in midwinter while the weather was severely cold,' loaded a car of potatoes into a car furnished by a carrier to be shipped from one point to another in Colorado. On arrival at destination, hg directed the car to Kansas City, Missouri and from there to a point in Kansas, where they were found to be frozen. It was agreed that the carrier was not negligent. It was held that the freezing was the act of God and the carrier was not liable as an insurer. It was further held that as the freezing was caused hy the infirmity or inherent nature of the potatoes, the carrier was not liable on that ground.</p> <p>2. -: Tariff Rates: Heating: Special Facilities: Discrimination. A carrier’s tariff rates posted and published made no provision for heating a car by stove with an attendant and it was held that, such carrier could not lawfully agree to furnish such heat' for a shipper shipping a car of potatoes, since that would be an unlawful discrimination in favor of the shipper under the Interstate Commerce Law.</p> <p>3. -: Interstate Commerce: Administrative Question, The question whether a heating stove for cars containing perishable freight in the winter should, or should not, be furnished by the carrier is an administrative one and belongs to the Interstate Commerce Commission exclusively.</p> <p>4. -: Cummins Amendment: Actual Loss: Liability. The Cummins Amendment to the Interstate Commerce Statute only annuls agreements for less than the actual loss; and it does not change the statute as written before that amendment, that the loss must be caused by something for which the carrier is liable.</p> <p>5. -: Freezing Weather: Act of God: Below Zero. Freezing weather with thermometer showing from zero to 11 degrees below whereby potatoes in transit are frozen is an act of God, and the carrier who is free from negligence is not liable.</p> <p>6. -: Perishable Freight: Insurer. A carrier is not liable as an insurer of freight where perishable goods are frozen in transit.</p> <p>7. -: Special Facilities: Negligence. When the carrier does not offer special facilities against freezing of perishable freight such as heat for the car of potatoes, but expressly stipulates that if a stove was used the shipper should furnish it and an attendant, the shipper assumes the risk of all such injury as was not occasioned by the carrier’s negligence.</p>

<p>1. JUDGMENT: Verdict as to One Defendant: Failure to Find as to Other Defendant Where at the close of all the evidence the court marks “given” a peremptory instruction in behalf of one defendant, but the instruction is not submitted to the jury, but the jury is instructed that the case is submitted only as against the other defendant; and the jury finds against the other defendant and makes no finding as to the first defendant, the court could not enter a final judgment as to both parties defendant as is required by section 2097, Revised Statutes 1909, since the jury found only as to the issue between plaintiff and one defendant, and has not disposed of all the issues.</p> <p>2. PRACTISE: Demurrer to the Evidence. In this State the common-law demurrer to the evidence does not 'exist, the only proceeding that can be likened to it in our practise being a peremptory instruction to find for a party.</p>

<p>1. DE JURE AND DE FACTO OFFICERS: Payment of Salary: Good Faith. The statement made by courts that a de jure officer cannot recover salary of his office when such salary has been paid to the de faeto officer, should be qualified by the further statement that the payment was made in good faith.</p> <p>2. SALARY: Legal Title: Performance of Duties. The salary of an office follows the legal title to the office and a de jure officer may claim the salary, though he has not been allowed to perform the duties of the office.</p> <p>3. DE FACTO OFFICER: Salary: Action. Since a de facto officer has not the legal title to the office he cannot maintain an action for the salary though he may have performed the duties of the office.</p> <p>4. OFFICERS: Rival Claimants Litigation: Appeal: Payment Not in Good Faith. Where a city had notice that there were two rival claimants to the chief clerkship in the water department, and that the conflicting claims were pending on appeal in the. Supreme Court, the salary having been withheld from both claimants, after-wards attempts to have the appeal dismissed and on failure to do so, nevertheless payed the back salary, in a lump sum, to the de facto officer, a short time before the Supreme Court decided the case against the claim of the de facto officer; it was held that the payment was not made in good faith and that the de jure officer, could maintain an action against the city for the salary.</p> <p>5. TWO CLAIMANTS: Notice: De Jure Officer Right To Salary. A city with notice that two persons are claiming one of its offices and that these claims are in litigation and it has refused payment of salary to each, cannot afterwards, shortly before decision of the case, pay the back salary to the wrongful claimant and thereby escape payment to the de jure officer. It would be an act of bad faith. The city could protect itself by not paying either until the litigation was ended, or if the matter was no in litigation by compelling them to interplead.</p> <p>6. GOOD FAITH: Evil Intent: Dishonesty. To be an act not in good faith by city authorities in paying a de facto officer the salary attached to the office, does not mean that the act must be done with evil or dishonest intent.</p>

<p>1. PERSONAL INJURY: Pleading: Proof of Negligence. Though an absence of a filter to an X ray machine was not pleaded, yet it was proper to allow proof of such absence as tending to show negligence in certain character of exposures.</p> <p>2. MALPRACTICE: Physician: Negligence of Second Physician: Master and Servant. When one physician sends another to treat the former’s patient and the latter does so with the patient’s consent, there is no relation of principal and agent or Master and Servant, between them and the former is not liable for the negligence of the latter. The rule of respondeat superior does not apply.</p> <p>3. X RAY: One Physician Called in by Another: Negligence: Liability of First For Negigence of Second. Where one applies to a physician for an X ray picture and the latter makes several attempts to take it, but fails, and then calls in another reputable physician to take it, and the latter, with the patient’s consent, in the former’s presence and with the former’s machine, known to the former to be defective, fails to get a picture, and the former thereupon resumes his first efforts, finally failing altogether; it was held to be a question for the jury whether the first physician was liable for the negligence of the physician he called in.</p> <p>4. PHYSICIAN, NON EXPERT CALLED IN: Negligence. Where one applies to a physician for an X ray picture and such physician makes several attempts to take it but fails and then calls in a person not a physician and requests him to try it with the same machine and he attempts it in the physician’s presence but fails, and the physician then resumes his own efforts, it was held that the physician was liable for the negligence of the man he called in.</p> <p>5. X Ray: Physician: Patient: Assumption of Risk: Negligence. Though a physician warned his patient that more than three exposures for an X ray picture without success was attended with much risk of injury and the patient consents to further attempts, he does not absolve the physician for negligence in further exposures.</p> <p>6. DAMAGES: Verdict. $7500 held not to be excessive for severe burns in attempt to get a picture by X ray.</p>

<p>1. NEGLIGENCE: Fire Truck: Right of Way. In an action for personal injuries received as a result of a collision between a fire truck and a street car based upon ordinances which give the fire truck when going to a fire the paramount right-of-way, and making it the duty of the person in charge of a street car to bring the same to a stop when a fire truck going to a fire shall approach such car, there is no error in an instruction which assumes that the fire truck was going to a fire in the absence of evidence that it was not going to a fire and where the case was tried by both sides on' the theory that it was the duty of the motorman to stop the car if he knew, or by the exercise of due care could have known, it was approaching.</p> <p>2. -:--: -: Duty of Motorman. A motorman is not excused for failure to bring his car to a stop unless he did not know or did not have good reason to believe the fire truck was approaching, though he has no knowledge that it is going to a fire.</p> <p>3. -: -: -: -: Safety of Passengers. Where both sides submit instructions making the defendant liable only if the motorman, after gaining knowledge of the- approach of a fire truck, could have brought the car to a stop in the exercise of due care but failed to do so, it is not error to omit as a feature in the ■ instruction a .requirement that he could bring the car to a stop with safety to the car and the passengers thereon.</p> <p>4. EVIDENCE: Opinion as to Speed: Qualification of Witness. A witness who has testified that he has driven all his life and that he has driven a fire truck with speedometer on it for ten months is qualified to testify as to the speed of a street car.</p> <p>5. -: Written Statement: Impeachment. It is not improper to refuse to admit a written statement for the purpose of impeaching a witness where all that the witness had been asked with reference to the statement was whether or not he had signed it, and where he was not permitted to read it to see if it was the same statement he had made without change or alteration, although request was made that he be allowed to read it. Under such circumstances the statement has not been sufficiently identified.</p>

<p>1. CONTRACTS: Excavation and Construction of Drainage Ditch According to Plans and Specifications. The plaintiff contracted to excavate and construct a drainage ditch according to certain plans and specifications which were made a part of the contract. Both plaintiff and defendant knew that the plans contemplated that the b'anks of the ditch would be too steep to hold, it being the purpose of the defendant to have the banks cave in and the caved in material removed by erosion of the waters of the Nodaway river. Held, that under the contract the plaintiff was not required to remove the material which had caved in during the progress of the work because of the steepness of the banks of the ditch.</p> <p>2. -: -: Substantial Performance. If, under the above contract, the plaintiff left unexcavated material in the ditch that prevented the waters of the river from flowing into it and eroding the caved-in material,' when such waters reached the stage contemplated for the doing of the work of erosion, he is not entitled to recover as he has not substantially performed the contract.</p> <p>3. -:-: Engineer’s Final Estimate: Binding Effect on Drainage Board. Where the contract provides that in no case will the approval of the engineer in charge of the work done diminish the responsibility of the contractor the engineer had no right to bind the board by final approval.</p>

<p>1. NEGLIGENCE: Turntable Cases: Rock Quarry: Small Cars: Children. The rule in turntable cases held applicable to an instance where small push cars used at a rock quarry were left standing on a track unfastened and unlocked, so that a boy ten years old, with other boys, were attracted to them to play and coasted down a a twenty per cent grade to a rock crusher, and becoming frightened jumped off and was killed.</p> <p>2. -: Rule Not Restricted to Turntables. The rule of liability in turntable cases is not restricted in application to cases of turntables, but is applicable to any other dangerous agency calculated to attract young children to play upon, or with them.</p> <p>3. -; Rule Not Applicable: Dangerous Agency: Attractive. The rule in turntable cases will not be used to deprive one of the use of his property because it is dangerous and unsafe for those who may, uninvited, come upon his premises. But if the dangerous agency is attractive to children and it is practicable, with reasonable effort and ordinary care, to make it safe against them using it as a play thing, it is actionable negligence not to do so.</p>

<p>1. BONDS: Material and Labor: Freight: Surety. Where a contractor for a cement bridge over a stream in a park gave bond with surety for the payment of all material and labor, and a railway carrier hauled the material from a distant point to the place of construction, a right of action (in the absence of waiver) accrued to it against the surety on the bond for freight charged for transportation.</p> <p>2. CONTRACTOR’S BOND: Surety: Carrier’s Lien for Freight: waiver: Right of Action. Where a surety on a contractor’s bond conditioned to pay for all material and labor is sued on the bond by a carrier for freight charges, and it is shown that the carrier has waived his lien for such charges by surrendering the property to the principal in the bond, the action cannot be sustained.</p> <p>3. -: Subrogation: Assignment: Carrier. Distinction between subrogation and assignment stated.</p>

<p>1. TORNADO INSURANCE: Cancellation: Intention, A notice of cancellation of a policy of tornado insurance to he effective must notify the assured that the policy is then cancelled. A notice of intention to cancel is not sufficient.</p> <p>2. -: Waiver: Receipt of Unearned Premium. Though a notice to cancel a policy of insurance is not sufficient to accomplish cancellation, yet if it is accompanied by a return of the unearned premium which the insured accepts, the policy will be deemed canceled.</p> <p>3. -: Five Days’ Protection: Count of Time: Exclusion of First Day. A policy of tornado insurance contained a clause for cancellation and for protection for five days from the receipt of notice of cancellation. Notice was received by the insured at 9 o’clock A. M. of the 31st of May, 1917, and the property insured was destroyed at 2 o’clock P. M. of June 5, 1917. It was held that in the count of five days’ time, May 31st up to midnight should be excluded, and that time ran until midnight of June 5th, thereby covering the time when the property was destroyed.</p>

<p>1. COMMON CARRIERS: Perishable Fruit: Loss or Damage: Insurer. Strawberries are a perishable fruit and a carrier of such freight is not an insurer against loss or damage.</p> <p>2. -: -: Negligence: Refrigerator Cars. Though a. carrier of perishable fruit is not an insurer against loss or damage, yet if he undertakes to transport such character of freight, it is implied that he will not be negligent and that he will exercise such care and diligence as will be reasonably necessary to protect it, as for instance the icing of refrigerator cars.</p> <p>3. —-:-: -: Rule in Federal Courts. In interstate shipments of freight, perishable or not perishable, the rule as established by the federal courts governs and under that rule the carrier is not an absolute insurer against loss or damage, he was powerless to prevent. To make liability there must be some element of negligence — the lbss must be caused by the carriers.</p> <p>4. --: Insurer: Causes of Loss. A carrier is not an insurer of perishable fruit, if the loss is caused by perishing; but he is an insurer against loss for any other cause save the act of God and the public enemy.</p> <p>5. -: Plaintiff’s Own Evidence Showing Decay. In an action brought against a common carrier for loss of berries, solely as an insurer and the plaintiff’s own evidence shows the loss was occasioned by the decay of the berries from their perishable nature, no case is made and the carrier should be discharged.</p>

<p>1. TAX BILLS: Work not Competed Within Time Prescribed by Ordinance: Delay Caused by Injunction: Collusive Injunction Proceedings. In a proceeding to cancel tax bills issued for work done under a contract alleged not to have been completed within the time prescribed by the ordinance authorizing the work, the defense that the work was delayed by an injunction suit against the contractor which ground for delay the ordinance sanctioned, will not avail where it is shown that the contractor, after the contract had been entered into and the work commenced, procured a property owner to institute tlie injunction suit, making the contractor and the city defendants in order to ascertain the validity of the ordinance in question, as the delay caused by the injunction is attributable to the act of the contractor.</p> <p>2. -: Injunction: Moot Case. Although there is an apparent conflict of interests in a suit brought by a property owner against a contractor and a city to enjoin further work on the ground that the ordinance authorizing the improvement is invalid, where it is shown that the contractor himself, who was desirous of testing ■ the validity of the ordinance, procured the property owner to bring the suit, there is no real controversy between the plaintiff and the defendants in the injunction suit, the contractor in ■ reality being plaintiff and defendant.</p> <p>3. -: Eeal Party in Interest. In the absence oí a showing that the grantor of the plaintiff would have been estopped from questioning the effect of the injunction proceedings against the contractor the fact that such grantor made an outright gift of the property to plaintiff so that as a property owner he might bring the present suit is no defense, as the plaintiff, being the actual property owner, is the real party in interest.</p>

<p>1. LANDLORD AND TENANT: Attachment for Rent: Affidavit. In a suit by attachment under Landlord and Tenant Act (R. S. 1909, sec. 7896) it is not necessary that the affidavit setting up the first, second and third counts of attachment contain the charge “so as to endanger, hinder, or delay the collection of the rent.”</p> <p>2. -: -: Rent Due. Where affidavit in a suit in attachment for rent under Revised Statutes 1909, section 7896, stated that the rent was due, and the plea in abatement was a general denial, and the evidence was conflicting, the jury’s .finding for defendant thereon is not conclusive of the right of attachment, since under the statute plaintiff may attach, whether the rent be due or not.</p> <p>8. -: -: Affidavit: Sufficiency. There is no statutory requirement that landlord’s affidavit of attachment under Revised Statutes 1909, section 7896, must state whether the debt for rent is due under the Landlord and Tenant act or the general laws or attachment.</p> <p>4. -: Extension of Time for Payment of Rent: Effect: General Attachment. A landlord’s mere agreement to extend the time of payment of rent would not operate as an estoppel or waiver of his right to attach the property of a tenant, who was removing his entire property and family from the rented land, in view of Revised Statutes 1909, section 7896.</p> <p>5. -: Attachment for Rent: Evidence of Partial Payments: Effect. While in a suit in attachment for rent, under Revised Statutes, 1909, section 7896, defendant could show that he owed no rent debt at all, to defeat the attachment, a partial payment would not defeat the attachment.</p>

<p>1. WITNESSES: Husband and Wife: Agency. In an action against a husband for price of goods, where husband testified that he called his wife, who helped him run the store, and talked to her concerning the order given plaintiff, and that they concluded to cancel the order, and that she wrote, on the back of the copy left to him, a cancellation of the order, and he then handed it to a mail carrier, the wife was not an agent in the sense that would permit the admission of her evidence to prove the cancellation, under Revised Statutes 1909, section 6359.</p> <p>2. ROST'OFFICE: “Mailed.” A letter cancelling an order for goods was properly ‘‘mailed,” where it was addressed, stamped, and handed to a rural mail carrier.</p>

<p>1. CARRIERS: Carriage of Passengers: Assault. In view of the power given railroad companies by Revised Statutes 1909, section 3093, to eject disorderly passengers, a conductor may not assault a boisterous and drunken passenger and whip him, allowing him to continue his journey.</p> <p>2. -: Protection of Passengers. Where a disorderly passenger assaults a fellow passenger, it is the duty of the railroad company’s servants to protect the latter, and they may use such force as is necessary, but they are not justified in assaulting a passenger who is guilty merely of boisterous and indecent conduct, but should eject him.</p> <p>3. -: Passengers: Assault on Passenger: Instruction: Damage. In an action by a passenger for alleged wrongful assault by the conductor, an instruction given at the reguest of the company held erroneous in reguiring the jury to find facts which would entitle the passenger to punitive damages as a condition to awarding compensatory damages.</p>

<p>1. APPEAL AND ERROR: Admission of Incompetent Testimony: Reversible Error. In replevin suit by wife to recover automobile, issue being whether she was holding title in fraud of creditors, admission of incompetent testimony, with reference to plaintiff's husband putting his property in his wife’s name, was reversible error.</p> <p>2. EVIDENCE: Fraudulent Transfers: Reputation. In replevin suit by wife to recover automobile, issue being whether she was holding legal title in fraud of creditors, evidence that it was the understanding with the people that plaintiff’s husband had put his property in his wife’s name was incompetent.</p> <p>3. -: Declarations of Husband: Admissibility. In replevin suit by wife to recover an automobile, issue being whether she was holding legal title in fraud of creditors, statement of her husband that he had put his property in his wife’s name was incompetent, having been made subsequent to the deed, in the wife’s absence, and without her knowledge.</p> <p>4. FRAUDULENT CONVEYANCES: Jury Question: Title. In replevin, in which defendants claimed title to automobile through an execution sale against plaintiff’s husband, and in which issue was whether plaintiff had been the fraudulent recipient, held that the court did not err in refusing peremptory instruction for plaintiff.</p> <p>5. -: Husband- and Wife: Transactions Between: Validity as to Creditors. Where the rights of creditors are involved, transactions between husband and wife will be closely scrutinized, especially where the husband continues to handle the property which he transferred as agent for his wife.</p> <p>6. - Fraudulent Transfer of Property. Burden of Proof. In replevin, defendants, who claimed title- by virtue of purchase of automobile at an execution sale against plaintiff’s husband, had the burden of showing that plaintiff held legal title in fraud of her husband’s creditors; plaintiff having made a prima-facie case of ownership.</p> <p>7. -: Title: Instructions. In replevin suit by wife to recover an automobile, issue being whether she was holding legal title in fraud of creditors, held, that the court should have instructed that plaintiff made a prima-facie case and should recover, unless her title was destroyed on the alleged ground of fraud, and that the burden of proving such fraud was on defendants.</p>

<p>1. TRIAL: Directed Verdict: Evidence: Sufficiency. Where plaintiff’s own testimony clearly showed that he was not entitled to recover, a directed verdict is proper, notwithstanding plaintiff thereafter attempted to testify to the contrary, on the ground hat he had not been feeling well when he first testified.</p> <p>2. INSURANCE: Life Insurance: Contracts: Repudiation. Where an application for a life policy was taken in October, and the policy delivered in less than a month, the insured, though he could not read nor write, is not entitled, it appearing the policy was read over to him by the agent, and that his wife could read, to repudiate the contract three months later, on the ground the policy did not contain agreed stipulations.</p> <p>S. -: -: Repudiation of Policy. Where insured claimed that a life policy did not contain provisions agreed upon, but he made no attempt to repudiate it for several months after receipt, he cannot excuse his failure to sooner'act on the ground that the agent told him that, if at any time he became dissatisfied with the policy, he could return it and get his money back, for the contract, which was reduced to writing, contained no such agreement, and it was the insured’s duty to ascertain whether that provision was incorporated in the policy as well as the others.</p>

<p>1. FRAUD: Misrepresentations: Petition. A petition, alleging that the defendant corporation was selling automobiles, and that individual defendant was assisting in selling the cars, and that by means of misrepresentations plaintiff was induced to buy a car, held to state a cause of action against the individual.</p> <p>2. CORPORATION'S: Actions: Venue. Under Revised Statutes 1909, section 1754, a domestic corporation cannot be sued in any county except the county where the cause of action accrued or a county where the corporation shall have or usually keeps an office or agent for the transaction of its usual business.</p> <p>3. -: -: -. Revised Statutes 1909, section 1751, applies to venue in actions by and against persons only, and where the circuit court of a county did not have jurisdiction over an action against a domestic corporation under section 1754, the court cannot obtain jurisdiction over the corporation because a resident of the county was made a defendant and process was served on the corporation pursuant to section 1751.</p> <p>4. PLEADING: Designation of Venue. In an action against a corporation for misrepresentations made-in the sale of an automobile, the petition held insufficient to show that the cause of action arose in the county where suit was begun.</p> <p>5. EVIDENCE: Judicial Notice. The Court of Appeals will take judicial notice of a fact that a town is located in a particular county,</p> <p>6. FRAUD: Missouri Circuit Courts: Jurisdiction. The circuit court of a county is a court of general jurisdiction, having power to hear and determine suits between the parties, where the cause of action is based upon misrepresentation's in a sale.</p> <p>7. COURTS: Circuit Courts: Jurisdiction. Whether the circuit court had jurisdiction of an action for damages for misrepresentations in a sale is a question of fact, and not one to be determined by the pleadings.</p> <p>8. APPEAL AND ERROR: Review: Jurisdiction. Where, in an action against a domestic corporation begun in the circuit court of a county in which the corporation did not have an office .or agency, the court overruled a motion to dismiss on the ground of want of jurisdiction, held, the evidence heard on the motion not being included in the record, that it will be presumed that the facts disclosed that the court had jurisdiction, although the petition did not on its face show that the court had jurisdiction.</p>

<p>1. SALES: Warranty Made Pending Consummation of Sale: Right of Buyer. Statement that horse would work double or single and was a good horse, made by defendant seller after plaintiff buyer had paid initial payment, but before payment of balance of purchase price or delivery, amounted to an express warranty made pending sale, and plaintiff could recover for breach.</p> <p>2. -: Consummation: Delivery and Acceptance: Executory Sale. A sale is executory until there has been a delivery and acceptance of the goods in accordance with the contract and with intent to pass title.</p>

<p>1. MECHANIC’S LIENS: Parties to Indemnity Bond: Who May Assert. A contractor who it a surety on a bond to a mortgagee; holding it harmless against the filing of mechanics’ liens, cannot enforce a mechanic’s lien as against such mortgagee, who has paid the proceeds of the mortgage to the mortgagor in reliance on the bond.</p> <p>2. MORTGAGES: Priority: Mechanics’ Liens. The mechanic’s lien of a contractor, who is a surety on a bond to a mortgagee to hold it harmless against filing of mechanics’ liens, is superior to the mortgage as to additional improvements contracted for with the permission of the mortgagee to ■ make the building comply with building restrictions.</p>

<p>1. FRAUDS, STATUTE OF: Contract hy Correspondence. Where contract for purchase of corn, forwarded hy buyer to seller for signature on October 23d, because it erroneously provided for shipment by November 3d, was returned by seller with letter requesting change to show shipment by November 5th and return of the papers for seller’s signature, and on October 25th the buyer returned the contract with such change made, the contract was complete under the Statute of Frauds; the seller’s letter referring to the contract which contained all the material elements of a sale contract in that it designated the amount, price, etc., and seller’s letter fixing the date or delivery.</p> <p>•2. -: Memorandum of Sale: Showing All Terms. To constitute a contract sufficient under the Statute of Frauds, a memorandum of the sale of the merchandise must contain all the material terms and conditions of the contract made and signed by the party sought to be charged.</p> <p>3. -: Letter Referring to Memorandum. A letter or telegram signed hy a party sought to be charged, which either sets forth the terms agreed upon or refers to a memorandum which sets it forth, is sufficient to satisfy the statute.</p> <p>4. EVIDENCE: Parol Evidence: Sale Contract: Conditions. Where a contract for sale of corn purported to cover every essential of the contract, it could not be varied by parol evidence that it was part of the agreement that the corn would be delivered as contracted provided the seller was able to procure cars in which to ship it.</p> <p>5 -: -: Incompleteness of Contract. Oral testimony to show the real agreement of the parties is never admitted, in case of a written contract, except where the writing shows on its face that it is incomplete and does not purport to be a complete expression of the entire contract.</p> <p>6. CONTRACTS: Mistake: Failure to Read Contract. One who signs a contract is presumed to know and understand its terms, and a mere failure to read or inform himself of the terms, in the absence of fraud, is no defense.</p>

<p>1. JUSTICES OF THE PEACE: Appeal: Amendment: Amount Sued For. Amendment cannot be made for the first time in the circuit court, on appeal from a jusfice court, to reduce the amount sued for in justice court from $300 to $250, in order to bring it within the amount allowed to be sued for in justice court.</p> <p>2. -: Jurisdictional Amount: Waiver of Part of Demand: Evidence. If a plaintiff waives part of his demand in justice court in order to confer jurisdiction, there should be some statement filed by him contained, within the roll, or some entry made by the justice evidencing such waiver.</p>

<p>Appeal from Barry Circuit Court. — Hon. Charles L. Henson, Judge.</p>

<p>Appeal from Dent Circuit Court. — Eon. L. B. Wood-side, Judge.</p>

<p>1. MUNICIPAL CORPORATIONS: Negligence of City in Failing to Provide Siderails for Sidewalls Jury Question. In action against City for injuries to pedestrian sustained in stepping off sidewalk into ditch, question of whether city was negligent in failing to construct guards or siderails to prevent pedestrians from stepping off walk into ditch held for jury.</p> <p>2. -: Negligence of Pedestrian in Stepping off Unguarded Sidewalk Bridging Ditch. Pedestrian, who in walking toward his home on a dark night walked along a street which he knew had a sidewalk, with no handrails, bridging a ditch, was injured by stepping off sidewalk into ditch, was not contributory negligence, as a matter of law, where he had intended to avoid danger by walking in middle of street, but had, because of darkness, walked upon sidewalk, and where every other street leading toward his home would have exposed him to same danger; the question being for the jury.</p> <p>3. -: Contributory Negligence in Using Sidewak Known to be Dangerous. A person has a right to use a sidewalk which he knows is dangerous if he in such knowledge uses it with care to himself, such use not being contributory negligence as a matter of law, unless defect is so glaringly dangerous that no prudent person would attempt to pass over it.</p> <p>4. -: Erroneous Instruction in Action for Injuries from Defective sidewalk. In pedestrian’s action against city for injuries from defective sidewalks, instruction that is was “the absolute and unqualified duty of defendant city to keep its sidewalks and streets in a reasonable safe condition" held erroneous, in making city an insurer, whereas it is only required to exercise reasonable and ordinary care.</p> <p>5. -: Duty of City as to Sidewalks and Streets. A City is only required to exercise reasonable and ordinary care and diligence in making its streets and sidewalks reasonably safe for the public, and is not an insurer of safety of public in use thereof.</p> <p>C. DAMAGES: Necessity of Pleading Damags for Loss of Time and Earnings. In personal injury action, damages for loss of time and loss of earnings cannot be recovered unless specially pleaded.</p> <p>7. NEGLIGENCE: Time not Element of Contributory Negligence. Negligence of plaintiff, if one of the producing or efficient causes which helped to bring about the injury, will preclude recovery, regardless of when his negligent act was committed.</p>

<p>1. PRINCIPAL AND AGENT: Authority to Sell Land not Apparent Authority to Release Mortgage. The right of an agent to sell or assist in selling lots would not give him implied authority to release a mortgage, which had been made to, and was owned by, his principal.</p> <p>2. -: Evidence Insufficient to Show Apparent Authority to Release Mortgage. The authority to collect money on the sale of certain lots did not give agent apparent authority to release from the records a mortgage of his principal, which was not in agent’s possession and was not given him for collection.</p> <p>3. -: -. That mortgagee sent paid note to mortgagor, who gave not to mortgagee’s agent for purpose of having agent release mortgage securing note, was not sufficient to give agent apparent authority to procure release of another mortgage from mortgagor to mortgagee, where mortgagee had no knowledge that first note was ever in agent’s possession or that agent had procured such release.</p> <p>4. VENDOR AND PURCHASER: Fraudulent Release of Mortgage Void as to subsequent Purchasers for Value. Release of mortgage from the records secured by presentation of forged note by one who was not the legal owner or holder of note was fraudulent and void even as to subsequent purchasers for value and in good faith.</p> <p>5 WITNESSES: Testimony as to Transaction with Deceased not Party to Controversy Admissible. In action to establish validity of note and deed of trust which on the face of the records had become inoperative on account of fraudulent release procured by presentation of forged note, the death of person who procured release did not preclude plaintiff from testifying under Revised Statutes 1909, section 6354, prohibiting party from testifying where other party to contract or cause of action is deceased, where such person was not a party to the note and deed of trust sought to be established and was not in contractual relationship to plaintiff.</p> <p>6. EQUITY: Where Equities are Equal the First in Time Will Prevail. Where one of two innocent parities must suffer because of the fraud of a wrongdoer, the innocent party who has the first lien in point of time will be protected in his right, provided he has done nothing, which ought to estop him from asserting his right.</p>

Louis. —Mon. Kent K. Koerner, judge. (1) Where no claim is made for punitive damages, in an action for wrongful death it is error to refer to the pencuniary condition or relative position of defendant in the community. Cyc. 211-212; 13 Cyc. 360; 17 C. J. 1365; Clark v. Fairley, 30 Mo. App. 335, 339-40; Berryman v. Cox, 73 Mo. App. 67, 70-72; Morgan v. Durfee, 67 Mo. 469.

<p>1. SALES: Breach of Contract: Evidence: Proposal not Accepted: No Contract. Evidence reviewed and held that under the evidence plaintiff was not entitled to recover, the evidence failing to show any contract between the parties as alleged.</p> <p>2. STATUTE OF FRAUDS: Issue Should be Raised by Pleading or by Objection When Evidence is Offered. The issue of the Statute of Frauds should be raised either by pleading or by proper objection when the evidence relating to the contract is offered.</p>

Louis. —Hon. Thomas G. Hennings, Judge. (1) The pleadings and the evidence for plaintiffs make out a complete and convincing case of nuisance entitling them to an injunction in equity as prayed without any preceding judgment at law declaring the nuisance. Baker v. McDaniel, 178 Mo. 447, 467 et seq.; Hall v. Morton, 125 Mo. App. 315-322; Blackford v. Heiman Co., 132 Mo. App. 157; Bradbury Co. v. Laclede Co., 128 Mo. App. 96; Hayner v. Excelsior Co., 129 Mo.

<p>1. EXECUTIONS: Motion to Quash: When Made in Open Court Need Not Be Verified. Section 2244, Revised Statutes of Missouri 1909, enabling a defendant, when the court is in vacation or during the recess of the court, to apply to any judge thereof by petition verifled by affidavit, to obtain a stay of execution until he can be heard in court as to whether such execution shall be set aside or quashed, does not exclude the ordinary remedy by motion to quash, unsupported by affidavit made in open court in term time.</p> <p>2. CORPORATIONS: Foreign Corporations: Doing Business Within State: Failure to File Copy of Charter: Penalty Section Not Repealed. Where the original act requiring foreign corporations doing business within this State to file in the office of the Secretary of State a copy of its charter, etc., was repealed, and a new section enacted in lieu thereof, etc., now section 3039, Revised Statutes 1909, and it is apparent that it is only a reenactment of the old section with but one additional clause added thereto, etc., the penalty section of the original act, section 3040, Revised Statutes 1909, was not repealed.</p> <p>3. INTEREST: Judgments Penal in Nature Do Not Bear Interest. Held that section 7181, Revised Statutes 1909, which provides that interest shall be allowed on all money due upon any judgment or order of court, from the date of rendering the same until satisfaction be made by payment, accord or sale of property, etc., does not include judgments which are penal in their nature and .have for their sole object the punishment of an offender, and hence, the penalty imposed by section 3040, Revised Statutes 1909, being for the purpose of punishment, a judgment for such penalty does not carry interest.</p>

Louis. — Hon.. William T. Jones, Judge. (1) The court erred in giving plaintiff’s instruction No. 2, authorizing the jury to assess plaintiff’s damages in the amount of her pecuniary loss from loss of time, for the reason that the correct measure of her damages was not the amount of her loss of wages, but the reasonable value of her services as a nurse. MacDonald v. St. Louis Transit Co., 108 Mo.

<p>1 NEGLIGENCE: Injury to Street Sweeper: Automobiles: Position of Street Sweeper When Injured: Question for the Jury. In an action to recover damages for personal injuries sustained by a street sweeper by being struck by an automobile, etc., in view of the testimony of plaintiff and the witness corroborating him, to the effect that plaintiff was standing between the street car tracks and the south curb of the street performing his ordinary duties as street sweeper with his back turned to the west or southwest, and in full view of drivers of automobiles approaching from the west, but that defendant nevertheless ran him down and injured him, held, the case was one for the jury.</p> <p>2. INSTRUCTIONS: Prejudicial Where Broader Than Petition and Requiring Finding Contrary to Facts. In an action to recover damages for personal injuries sustained by a street sweeper by being struck by an automobile, etc., where plaintiff pleaded that he was standing in the street when struck and having testified that he was standing midway between the street-car track and the curb when struck, positively affirming that he had not been on the street-car track and was not coming off the track when struck, an instruction authorizing a recovery upon a finding that plaintiff stepped from in front of a street-car, and that at the time plaintiff was stepping from in front of a street-car defendant saw or by the exercise of ordinary care could have seen him stepping away from said street-car into the path of defendant’s automobile in a position 'of danger in time to have stopped the automobile, by the exercise of ordinary care, before it struck and injured plaintiff, is prejudicial error for the reason that it is broader than the petition and requires a finding directly contrary to the facts shown by plaintiff’s own testimony.</p>

Louis, —Hon. William T. Jones, Judge. (1) Plaintiff’s instruction No. 1 is erroneous for . the reason that it permitted a recovery on the theory that the car was operated at a negligent rate of speed, when plaintiff’s contributory negligence bars a recovery under that theory, as a matter of laAv.

<p>1. APPEAL AND ERROR: Assignment of Error in Motion for New Trial. An assignment in the motion for new trial that “the court erred in instructing the jury as requested by • the plaintiff ’ is now sufficient to preserve the alleged errors, in giving such instructions, for review.</p> <p>2. NEGLIGENCE: Humanitarian Rule: Instruction. In an action based upon the humanitarian rule an instruction, which, after embodying the other necessary elements is concluded by a direction that under the facts detailed the verdict should be for the plaintiff if such facts were found, “even though you believe the plaintiff to have been guilty of negligence in getting into such situation of peril,” is not open to attach.</p> <p>3. -: -: Contributory Negligence. Instructions which embody the element of plaintiffs contributory negligence as a defense to an action based on the humanitarian rule are properly refused.</p>

<p>1. APPELLATE PRACTICE: Motion to Dismiss Appeal. Where the points relied on and the errors complained of are separately assigned in distinct subheads and paragraphs the appeal will not be dismissed although there is no formal collective assignment of errors in any given part of the brief.</p> <p>2. INJUNCTION: Restraining Prosecution of Actions: Multiplicity of suits. Upon a showing that numerous suits are threatened or intended, all depending on the same legal question and involving the same facts and circumstances, the prosecution of such further suits may be enjoined to prevent a multiplicity of suits.</p> <p>8. -: Restraining Prosecution of Suits Pending on Appeal. A decree which, in addition to enjoining the bringing of new actions involving the same facts and circumstances, restrains the prosecution of an appeal taken by the defendant from a judgment in a law suit in which he was plaintiff, is erroneous in so far as the further prosecution of the law action pending on appeal is prohibited, as the effect of such a decree is to deprive the defendant of his right to carry on an appeal from the law judgment and to deprive kim of kis rigkt to kave a jury pass upon tke issues of fact in a case wkere tke issues were purely questions of fact and tke defense was legal, not equitable; multiplicity of suits is prevented by tke injunction against furtker actions otker tkan tke one pending.</p>

<p>1. MASTER AND SERVANT: Negligence: Failure to Provide Guard for Unsafe Machinery. In an action based on section 7828 Revised Statutes 1909, which requires a guard for dangerous machinery when possible, and if not possible the posting of notice of its dangerous character, there can be no recovery under proof that a guard had been provided for the machinery causing the injury, that had it been properly adjusted the injury would not have occurred; that it was plaintiff’s duty when using the machine to make proper adjustment of the guard; that the guard failed to work but that plaintiff making no complaint about the failure of the guard to work, proceeded to use the machine knowing the danger.</p> <p>2. -:-: Failure to Post Notice of Danger. Under the above statute notice of the danger of a machine must be posted only when there is no guard which can be provided, or when no guard has been provided.</p>

<p>1. ANIMALS: Liability of Owners of Dogs: Joint Tort-feasors: Separate Suits. Where the dog of the defendant and the dog of a third person set upon, attack, kill and maim the plaintiff’s sheep the liability of the owners under section 855 Revised Statutes 1909, is not a joint liability but each is responsible for the damage done by his dog, as he was under the common-law rule; so that the filing of a suit and settlement thereof with the owner of the other dog does not relieve defendant of his liability. Even if defendant and the owner of the other dog were jointly liable, the settlement by plaintiff with the other owner could be made under Laws 1915, p. 268, without releasing the defendant.</p> <p>2. -: Damages: Evidence. Where there is. evidence as to the comparative sizes of the two dogs which made the attack, of their strength and capacity and of the manner of their attack, there is sufficient evidence to go to the jury on the question of damage each dog had inflicted.</p> <p>3. -: Recovery of Penalty: Owner of Sheep. The penalty for failure of the owner of the dog which has killed or maimed sheep to kill the dog after notice may be recovered by the owner of the sheep.</p> <p>4. -: Failure to Kill Dog: Notice. The statute inflicts a penalty of $1 a day for each day that elapses after notice to the dog owner until the dog is killed. Held,, that such notice need not he written but means actual notice brought home individually and personally to the dog owner.</p> <p>5. -: Maimed. Where defendant nowhere specifically challenged the plaintiff’s right to recover for sheep that were injured but not ‘'maimed’’ but joined in instructions with plaintiff using the word ‘maimed’ without definition he cannot complain.</p>

<p>ITINERANT VENDOR: Agricultural and Horticultural Products. Under the Act of the Legislature of April 12, 1911, Laws 1911, p. 423, requiring itinerant vendors, therein defined, to take out a State license, one who is engaged for several weeks in selling apples, potatoes and cahbage from box cars on a side track is engaged in the sale of goods, wares and merchandise within the terms of the act as there is no exemption in the act similar to one made in section 10282, Revised Statutes 1909, of agricultural and horticultural products.</p>

<p>1. WITNESS: Absence Attachment: Courts Discretion. A defendant’s witness was a physician who was not present when called in the midst of the trial. Defendant asked the court to delay until he could be had. The court asked whether defendant wished an attachment and being answered in the negative refused to wait; held not error.</p> <p>2. INSTRUCTION: Measure of Damages: Limit of Rcovery. Where the plaintiffs instruction on the measure of damages is general and omits to limit the amount to be recovered to that asked in the petition, the defendant not. asking such Imit in his instructions it is not reversible error. Sp.ohn v. Railroad, 116 Mo. 1. c. 633, has been abandoned on this point.</p> <p>3. ASSIGNMENT OE ERROR: Insufficiency. An assignment of error that “the court erred under all the circumstances in not setting aside the verdict in this case” is not sufficient under the statute and rules of court.</p>

<p>1. MASTER AND'SERVANT: Negigence of Vice-Principal: Misfeasance and Non-feasance: Separable Controversy. The petition alleged that the defendant corporation acting through W. as its agent, superintendent and vice-principal, and the defendant W. negligently stopped the operation of a “man-lift,” and that through the negligence of the defendant corporation, acting through the defendant W. and through the negligence of defendant W. said “man-lift” was permitted to be suddenly started. Held, that the word “permitted” as used in the petition charged an act of misfeasance for which both the corporation and W. were responsible, and hence no separable controversy existed so as to permit removal to a federal court by the non-resident corporation.</p> <p>2. -: -: Conflicting Evidence. The defendant’s demurrer to the evidence is properly overruled when there is conflicting ' evidence bearing upon the question of whether or not its vice-principal might have reasonably anticipated the attemped use of the apparatus on which plaintiff was injured, at the time of the injury.</p> <p>3. -: Inadequate Rules: Argument of Counsel. Where there are no allegations of inadequate rules or of lack of safety devices, their absence is not an issue, but counsel in argument may refer to defendant’s knowledge that no such rules or devices existed as bearing on the question of whether or not the defendant exercised due care in what he did under the circumstances, but counsel cannot argue that defendant is liable for failure to have rules under the circumstances, and the trial court is in a better position to de- . termine whether or not counsel is keeping within the issues, or making an attempt to appeal to the passions or prejudices of the jury.</p> <p>4. APPEAL AND ERROR: ^Argument of Counsel: Bill of Exceptions. Argument of counsel, complained of as being erroneous, must be preserved in the bill of exceptions for review, and it is insufficient that said argument is contained in the motion for a new trial.</p>

<p>1. CERTIFIED CHECK: Lack of Consideration. In an action by present defendant against a bank upon its certified check indorsed by present plaintiff to present defendant, the bank could not interpose a defense of lack of consideration flowing from the present defendant to the present plaintiff, nor could present plaintiff have intervened and shown the lack of consideration.</p> <p>2. -: -: Res Adjudicata. In suck a case although the present plaintiff took .active charge of the bank’s defense and paid the judgment and costs he is not thereby concluded or estopped from bringing his action against the defendant for the amount of the check because of lack of consideration, since such a defense could not have been interposed in the suit against the bank,</p> <p>3. -: -: Liquidated Damages: Failure to Enter into Contract. Where plaintiff had deposited certified check with defendant which was to be forfeited as liquidated damages for failure to enter into a contract for the paving of the defendant’s streets, if the contract was awarded to plaintiff, he is entitled to a return of the sum deposited where there are defects in the proceeding authorizing the paving which make the entire proceedings void.</p>

<p>1. MANDAMUS: Letting of Contract for Publication of Official Notices: Competitive Bidding. Where a board, composed of the circuit judges of Jackson County, permitted a publishing company to amend its bid by merely extending it after the bid of a competitor had been opened and the former had knowledge of the latter’s bid, it could not be said to have abused its discretion under section 591 Revised Statutes 1909, as amended (Laws of 1913, p. 97) and mandamus to compel a re-submission of bids would not lie.</p> <p>2. -:-: Daily Newspaper. Under the above statute requiring the letting of the contract to a daily newspaper the board does not abuse its discretion in letting the contract to a newspaper that became a daily one at the time the notices were to be published, although not a daily newspaper at the time the contract was let.</p>

<p>1. CAUSE OF ACTION: Estoppel. A cause of action must have its foundation either in a contract or in an actionable wrong done. An estoppel can never create a cause of action.</p> <p>2. -: -: Liability Insurance. Defendant had insured B in a policy of employer’s liability insurance. After B’s death several claims were forwarded to defendant whose agents investigated the same and whose attorneys took charge of the defense. When defendant learned of B’s death it withdrew from the defense of the suits and notified plaintiff that it disclaimed any liability. Plaintiff was the general manager of the deceased’s business, and executor of his estate. Subsequent to defendant’s withdrawal he comprised and paid judgments in the suits arising out of injuries which occurred after B’s death and he now sues defendant to recover those amounts. Held, -that plaintiff had no contractual relations with defendant; that defendant owed him no duty; that the plaintiff cannot base a right to recover upon the mere fact that the defendant for a while took charge of the- defense of the suits; that there could be no estoppel, even if estoppel alone were sufficient to give plaintiff a cause of action, for the reason that plaintiff did not pay out any money in reliance of defendant’s conduct, as he had knowledge at the time of payment that defendant disclaimed liability.</p>

<p>1. APPEAL AND ERROR: Recital in Record Proper. A recital in the record proper as .follows: “Now here defendant files his affidavit for appeal . . . which said appeal is hereby duly allowed” is sufficient- to show that the affidavit tor appeal was filed.</p> <p>2. BILLS AND NOTES: Real Party in Interest: Non Resident: Equitable Set-off. An answer which pleads that the real party in interest in a suit on two notes is not the plaintiff, but that the owner of said notes 3s one 8 who is a non-resident and that on an accounting between 8 and defendant who were formerly partners, it will be found that 8 is indebted to the defendant in a certain sum which defendant aslss to be applied on the notes, states a proper case for equitable set-off, and it is erroneous to give plaintiff judgment on the pleadings.</p> <p>3. -: Equitable Set-oS. The jurisdiction of equity to allow an equitable set-off is not based upon any statutes of set-off but exists independently of them to enable courts to do justice between the parties.</p> <p>4. -: -: Ilhird Person Real Party in Interest. An equitable set-off may be pleaded against a third person who is the real party in interest.</p> <p>5. -: -: Unliquidated Demand. Where the equitable set-off pleaded consists of an unliquidated demand, the chancellor, under the general prayer for equitable relief, may restrain further proceeding on the notes sued on until an accounting has been had, or defer judgment until a reasonable time has been afforded for that purpose.</p>

<p>1. FIRE INSURANCE: Proper Party to Sue: Policy Payable to Estate. At time of issuane of policy of fire insurance the “estate of Anna Todd, deceased” was named as the insured, a rider subsequently attached to the policy designated plaintiff as the insured'; the probate court made an order refusing to grant letters of administration on the estate of Anna Todd, deceased, as the property left by her was no more than the law allowed the widower, and such widower, the plaintiff, was authorized to collect and retain all the property belonging to the estate. Held, that in view of the recognition of plaintiff as the insured in the rider, and in view of the order of the probate court plaintiff was the proper person to sue.</p> <p>2. -: Vexatious Refusal to Pay: Jury Question. Whether or not the defendant’s refusal to pay was vexatious or based upon a reasonable belief that plaintiff had burned the house is a question for the jury, unless it appears that unquestionably the circumstances were such as to justify a reasonable man in refusing to pay.</p> <p>3. -: Value of Insured Property: Instruction. In the absence of a showing of a depreciation in the value of the insured property, it is not erroneous to direct the jury, if they found for plaintiff, to find in the amount provided in the policy.</p> <p>4. -: Vexatious Refusal to Pay: Proceedings by Defendant After Suit. Where, after suit is brought on a policy of fire insurance, and the defendant takes change of venue and continuances, it is error to modify an instruction requested by defendant to the effect that the jury should disregard the court proceedings in-granting change of venue and continuances with the qualification “unless you believe the proceedings of the court were induced by defendant solely for purpose of vexation and delay;” the jury must determine the question of vexatious delay by the circumstances occurring, prior to the suit.</p>

Louis. —Hon. Daniel D. FisherJudge. (1) The dual capacity doctrine is the settled law of this State. English v. Rand Shoe Company, 145 Mo. App. 450. The claims of the defendant rest either upon the theory of distinct departments or upon the theory that the act complained of was the act of a vice-principal. The men were consociated in a common task. Card v. Eddy, 129 Mo. 518. The demurrer should have been sustained.

<p>1. JUDGMENTS: Invalid Judgment: Violation of City Ordinances: Complaint in Two Counts Charging Separate Offenses: Court or Jury Must Make Distinct Finding on Each Count. In a proceeding based upon the alleged violation of municipal ordinances, where the complaint contained two counts charging separate offenses, held that the only charge of which there was any proof attempted was that set out in the first count of the statement, and for the violation of the ordinance there referred to;. nevertheless the defendant was. entitled to have the court as a jury pass distinctly upon each of the two offenses or charges on which she was arraigned, and where the court did not pass on. the two charges but entered a general verdict of guilty against defendant, it was insufficient, and no valid judgment could be rendered upon it.</p> <p>2. INTOXICATING LIQUOKS: Local Option: Ordinances: Ordering Liquors for Personal or Family Use Not Unlawful. Where an act of the Legislature, commonly known as the Local Option Law, had been adopted and was in force in a municipal corporation during the times covered, and an ordinance of the city prohibited the keeping, storing or delivering to another person intoxicating liquors, providing that nothing in the ordinance shall be construed to prohibit any person from ordering liquor for his own or family use where such liquor is sent direct to the person using the same, defendant who purchased intoxicating liquor for use at a private party and directed it to be delivered at first to her mother’s home, where she was then residing but owing to the illness of her mother she was obliged to give the party she intended giving at the home of a friend, and ordered the beer delivered there from the railroad station, held that under the facts, the beer was sent direct to defendant, and she obtained it for herself to serve it to her guests, who for the time were a part of her family, and defendant could not be held to be either keeping, storing or delivering it for or to another person.</p>

— Hon. Edgar B. Woolfolh, Judge. (1) The pleadings, taken in connection with the record in this case, show that this is a case that could have been tried by a jury without unnecessary delay or complication,- and, therefore, should not have been referred, over the objection of plaintiff, thereby depriving him of his right to a verdict of a jury, as to whether he made any such contract as is plead by the defendant.

— ■ Hon. B. A. Breuer, Judge. (1) Tbe petition in a civil action must contain a plain statement of facts constituting tbe cause of action sued on. R. S. 1909, sec. 1794; Sidway v. Missouri, etc., Company, 163 Mo. 342; Moore v. Mountcastle, 72 Mo. 605;' Ruebsam v. Transit Company, 108 Mo. App. 437.

<p>1. BILLS AND NOTES: Judgments: Exhibits: Notes as Exhibits Not Part of Petition. Where, though the notes sued on were annexed to the petition as exhibits, and were referred to in the testimony, they were never offered in evidence; as exhibits they formed no part of the petition, and a judgment which purports to be based upon them has no foundation upon which to stand.</p> <p>2. BANKS AND BANKING: State Bank: Act of Cashier in Violation of Statute Void: Board of Directors Cannot Ratify. An act of a cashier of a State bank done in violation of the Laws of 1915, pp. 146, 147, section 90, is absolutely void, and can confer upon no one any right or title to any note, bond, or other obligation attempted to be disposed of in contravention of its terms; and where a cashier attempts to perform an act in contravention of such statute, no subsequent action on the part of the board of directors, by way of ratification, can give any validity thereto.</p> <p>3. -: -: Cashier Has Power to Sell Notes in Course of Business. Where notes were transferred to a bank of this State by an assignment executed by the payee on the back of each note, and the notes remaining unpaid the bank instituted a suit thereon in the circuit court and obtained judgment against the payee alone, the action of the cashier of the bank in directing the clerk of the circuit court to deliver the notes to the payee in order that she might sue the makers, was not void because without antecedent authority conferred by the board of directors of the bank, etc., under the Laws of 1915, pp. 146, 147, section 90; the statute does not deprive the cashier of power to sell notes or other obligations of which the bank may have title in the ordinary course of business.</p> <p>4. BILLS AND NOTES: Payee in Note Entitled to Sue for Collection. Under section 10160, Revised Statutes of 1909, plaintiff, as payee in possession of the note, is the holder thereof, having the right to sue for its collection, and it was not necessary for plaintiff to go further and prove that she was such holder; the law raises a prima-facie presumption to that effect from the fact that she is the payee in possession.</p> <p>5. PRINCIPAL AND SURETY: Surety Cannot Recover Against Prin-' cipal Until Debt is Paid. A surety is not entitled to recover against his principal until he had paid the debt for which he became secondarily liable.</p>

— Hon. Frank Kelly, Judge. (1) The demurrer to the evidence should have been sustained. Tiede v. Fuhr, 264 Mo. 622, 633; Berger v, Langenberg, 9*7 Mo. 390, 395; McCaskey v. Garrett, 91 Mo. App. 354, 359. (2) The court erred in modifying defendant’s instruction No. 1 by striking out the following therefrom “that the charge in the affidavit was false.” Hill v. Palm, 38 Mo. 13, 23; Vansickle v. Brown, 68 Mo. 627, 636.

<p>1. INSURANCE: Accident Insurance: Automobiles Collision With Embankment: Included in Policy Covering Collision With Any Other Automobile, Vehicle or Object. Under an accident insurance policy covering, damages to an automobile by being “in collision with any 'other automobile, vehicle or object . . . ' excluding damages caused by striking any portion of the roadbed,” the word “object” does not mean some object similar to an automobile or vehicle within the rule of ejwsdém generis, but should be construed in the ordinary and usual acceptation of the word, and implies that which is visible or tangible in the broad, common and usual acceptation, of the word and includes a collision with the earth at the bottom of an embankment along the side of the road.</p> <p>2. -: -: -: -: Exceptions in Policy of Damages Caused by Striking Roadbed Does Not Include an Embankment. Where an accident insurance policy covers damages to an automobile by “being in collision with any other automobile, vehicle or object . . . excluding damages caused by striking any portion of the roadbed,” and the automobile was injured by skidding on the road down an embankment along the side of the road colliding with the earth at the bottom of the embankment, held that the embankment was not such a part of the roadbed as to fall within the exemption of the policy, the term “roadbed” applying only to that portion of the road which was constructed and used for travel, and that damages were recoverable.</p> <p>3. -: -: -: Policy Covering Damages to Automobile by Collision Does Not Include All Accidents. In an action to recover under a policy of automobile accident insurance covering damages “in collision with any other automobile, vehicle or object,” an instruction permitting a recovery by plaintiff upon a mere showing of loss or damage by accident, held erroneous.</p> <p>4. INSTRUCTIONS: Erroneous Instruction Covering Entire Case Prejudicial: Error Not Cured by Other Instructions Given. Where an instruction purports to cover the entire case and to direct a verdict is erroneous, the error is prejudicial, and can not be cured by other instructions given.</p> <p>5. -: Instructions Should Refer Jury to Evidence and Not to Pleadings. In an action to recover under a policy of automobile accident insurance covering damages “in collision with any other automobile, vehicle or object,” an instruction that refers the jury to the loss or damage “as alleged in the petition filed in this case” is erroneous; instructions must be predicated upon pertinent facts keeping within the- scope of the pleadings, and the instructions should refer the jury to the evidence, and not to the pleadings.</p>

<p>1. LIBEL: Joint Damages: Misjoinder: Waiver by Answering. In a suit by two individuals for damages resulting from a libelous publication, unless the defendant demurs for misjoinder he waives the -point, and if he demurs and subsequently answers, he also waives it.</p> <p>2. -: -: Partners. Defamatory words published of partners in relation to their business may be sued for in a joint suit and recovery may be had for damages to their joint business, but not for any injury to their private feelings.</p> <p>8. -: -: -: Petition Construed. A liberal construction of the petition after verdict indicates that the suit was brought by plaintiffs not as partners, but as individuals on two causes of action, one for damages alleged to have been suffered by them as partners to the partnership business; the other for damages suffered by them separately as individuals.</p> <p>4. -: Incompetent Evidence: Effect on Jury Though Later Stricken Ou't. Where damaging evidence on the question of damages suffered by the partnership was permitted by the defendant to come in without objection and where the court at the first objection made indicated that such evidence would be ruled out as the damages would be limited to the individual damage suffered, and the court at the close of all the evidence did strike out such evidénce, the defendant may not complain.</p> <p>5. -: -: Harmless Error, Where a witness is permitted to testify as to his construction of a plain and unambiguous letter, and such construction placed by the witness on the letter went no further than the letter itself, the error in permitting the testimony was harmless.1</p> <p>(1. DAMAGES: Actual and Punitive: Excessive. Although the actual damages of $2500 and punitive damages in the same amount were perhaps justified under the evidence, where the verdict is as much as the total value of the property owned by defendant, the punitive damages will be held excessive in the amount of $1000.</p>

<p>1. EVIDENCE: Written Contract: Parol Evidence. Where the writing does not purport to he a complete expression of the "entire contract, the part reduced to writing may he enlarged by parol evidence.</p> <p>2. -: -: -: Oral Statements by Agent. A statement in defendant’s letter that it is sending its agent to see plaintiff in regard to the sale of its beverage indicates that the agent was sent to make an agreement with the plaintiff and the statements made by the agent are admissible in evidence as part of the contract.</p> <p>3. SALES: Rescission: Statu Quo. Where plaintiff offers to return the balance of goods on hand and the proceeds from the sale of the goods he has already sold, he has done all that is necessary to put the defendant in statu quo.</p> <p>4. -: Agent’s Warranty. Under the evidence the trial court is held to have properly assumed that the defendant’s agent was authorized to make the warranty in the sale of defendant’s beverage to plaintiff, that it would not cloud for the period of a year.</p> <p>5. -: Return of Goods: Counterclaim. Where after return of verdict and before entry of judgment the court had the plaintiff return to the defendant the goods plaintiff had purchased from defendant which he had on hand, and deducts from the amount of tlie verdict, the value of the goods plaintiff was unable to return, it cannot be urged that the court committed reversible error in dismissing defendant’s counterclaim as defendant has received that which he is entitled to.</p>

<p>1. TRESPASS: Taking of Property: Appropriation of Easement. The Construction of a slope upon plaintiff’s land for the purpose of supporting the sides of a street under an ordinance providing for the grading of the street, was not a taking of the plaintiff’s land but a damage thereto which might have been ascertained in the condemnation proceedings in the circuit court.</p> <p>2. -: Damage to Land: Res Adjudicata. Where a large amount of earth is placed on plaintiff’s land in constructing thereon a slope under an ordinance providing for the same, the condemnation proceedings in the circuit court to ascertain damages to property owners was res adjudicata and the plaintiff may not recover further damage.</p> <p>3. RES ADJUDICATA: Failure to Plead. The defense of res adjudicata cannot be urged by a defendant who has not pleaded it.</p>

<p>1. BANKS AND BANKING: Forged Checks: Name of Payee Forged and Check Raised: Payment by Bank: Admission that Signature was Genuine and Sufficient Funds. The cashier of a bank in stating that a check presented to it by the treasurer of the purported payee was good, or all right, and in paying the same, thereby admitted that the signature of the drawer was its genuine signature, and that it had sufficient funds on deposit to cover the amount named in the check, there being nothing in the inquiry propounded by the treasurer of the payee to the cashier, and nothing in the cashier’s references, to indicate to the cashier that the treasurer of the payee meant to propound to him, directly or inferentially, the query as to whether or not the drawer of the check originally drew the same to the payee in whose name it appeared therein, and for the amount therein.</p> <p>2. -: -: -: Payment on Mutual Mistake: Action for Money Paid: Right of Recovery. Where the treasurer of the purported payee in a check, presented same to the cashier of a bank inquiring if it were good, and was informed by the cashier that it was good, or all right, when in fact the payee’s name, as well as the amount recited therein, had been changed and inserted by forgery, and there was no evidence or suggestion upon the face of the check of its having been changed as to the name of the payee or altered as to the amount for which it was originally drawn, and it is impossible to classify tbe error of the bank as equal to or greater than the mistake of the payee, and the mistake may be said to have been mutual when the bank paid the check, held that when the payee presented such check to the bank, he in law represented that the check was genuine, and the payment of the check to the payee was, because of the forgery of the name of the payee and the amount thereof, without consideration, the moneys so paid the payee by the bank in equity and good conscience never ceased to be the money of the bank, and that the bank was entitled to recover the same of the payee.</p> <p>3. -: -: -: -: Bank Need Not Return Check Nor Make Demand Before Suit. Inasmuch as a forged check is worthless, it is not necessary to return a forged check or make demand of payment of the payee prior to instituting suit to recover money paid thereon.</p> <p>4. TRIAL PRACTICE: Evidence: Directed Verdict on Oral Testimony not Admitted to be true Erroneous: Question for the Jury. In an action by a bank to recover money paid on a forged check, etc., where the allegations of the petition were denied by answer, th6 burden of proof being then upon plaintiff, who adduced oral testimony not admitted to be true, and the credibility of the witnesses and the weight to be given their testimony, in the first instance, being for the jury, it was error for the trial court to determine same for the jury by directing their verdict for plaintiff.</p>

<p>1. REFORMATION OF INSTRUMENTS: Equity: Varying Terms of Written Conveyance: Character of Proof. For a court of equity to vary the terms of a written agreement on the ground that the paper does not state the real contract of the parties on account of a mutual mistake of fact, the mistake must be established by clear, positive, and unequivocal evidence; equity will not grant relief upon a probability or even a preponderance of evidence, but only upon a certainty of error.</p> <p>2. VENDOR AND PURCHASER: Conveyance of Excess Acreage: Mutual Mistake: Evidence: Insufficient to Show Certainty of error. In an action by a vendor to recover from a purchaser for an excess of acreage conveyed over that agreed upon through mutual mistake, evidence held not to show a certainty of error as to the acreage.</p> <p>3. __; -; -; -: Burden of Proof. In an action by a vendor to recover from a purchaser for an excess of acreage conveyed over that agreed upon through mutual mistake,' it was encumbent on plaintiffs to show by clear, cogent, and unmistakable evidence that there was a mistake as to the acreage, and held. this they failed to do.</p> <p>4. -: -: -: -: Sale in Gross: Effect. In an action by a vendor to recover from a purchaser for an excess of acreage conveyed over that agreed upon through mutual mistake, h.eld under the evidence as a whole that it is uncertain whether the agreement between the parties was not in fact so modified as to make it a sale in gross and not by the acre, and if a sale in gross, plaintiffs are not entitled to relief, as in such case it was a risking bargain oí contract of hazard, and they cannot recover for any excess.</p> <p>5. -: -: -: Remedies of Vendor: Rescission. A purchaser cannot be compelled to take and pay for more land than he agreed to buy and cannot be copelled to convey back to the vendor the excess of acreage inasmuch as it cannot be determined which part of the whole tract was the excess acreage; however the vendor may bring a proceeding in equity to rescind the' contract on the ground of mutual mistake, giving the purchaser the option of submitting to the rescission or paying the additional proportionate price for the excess in quantity, but in the event the purchaser prefers a rescission rather than a payment for the excess acreage, and in the meantime has improved the !a;v’. equity would compel the vendor to pay for the improvement .</p>

<p>1. DEATH: Disappearance: Evidence: Presumptions Against Suicide and Continuance of Life Until Seven Years Absence Rebuttable. The presumptions tjhat a man lives after disappearance until after the seven-year statutory period lapses and the presumption against suicide can be overcome by evidence.</p> <p>2. -: -: -: -: Burden of Proof. In an action based on a benefit certificate where insured had disappeared within less than the seven-year period, it was incumbent upon plaintiff, in view of the presumption that insured still lived, to .present evidence which tended to show that he was dead, and to make it appear to the jury that it was more probable that he was dead than otherwise.</p> <p>3. INSURANCE : Death. Disappearance: Evidence: Whether Insured was Dead Question for the Jury. In an action based on a benefit certificate where insured had disappeared within less than the seven-year period, evidence of facts and circumstances from which the jury could infer that insured was dead at the time the certificate was canceled for nonpayment of du§s held sufficient to make a case for the jury, and this without the aid of letters of administration and a letter from insured threatening suicide, which were objected to as improper evidence.</p> <p>4. DEATH: Disappearance: Evidence: Letters of Administration Primafacie Evidence of Death: Admissibility. In an action based on a benefit certificate where insured had disappeared within less than the seven-year period, it was not error to admit in evidence letters of administration on insured’s estate, such letters being prim-facie evidence of the death of the person on whose estate they are issued.</p> <p>5. EVIDENCE: Death: Disappearance: Letter. Threatening Suicide Not Admissible as Res Gestae In an action based on a benefit certificate where insured had disappeared within less than the seven-year period, a letter from insured to his children stating, “When you read these lines I am no more,” not being accompanied by any act which it may be said to characterize, and was not a part of res gestae, should not have been admitted as evidence to prove death.</p> <p>6. -: -: -: Letter Threatening Suicide Not Admissible to Show Attitude Toward Family. In an action based on a benefit certificate where insured had disappeared within less than the seven-year period, a letter deliberately prepared and lacking the element of spontaneity, and being wholly different from a spontaneous statement as to the condition of insured’s health or his feeling towards his family made at a time when there could be no possible motive except an honest statement of a feeling or a condition, held inadmissibe for any purpose. Reynold, P. J., dissents, and thinks it was not error to admit in evi- . dence the Bergman letter and that the judgment should be affirmed.</p> <p>7. INSTRUCTIONS: Death: Disappearance: Instructian Should not Assume Absence Unexplained. In an action based on a benefit certificate where insured had disappeared within less than the seven-year period, in view of the evidence, an instruction should not assume that the absence of insured was unexplained, but plainly state that if his absence was unexplained then the jury might take into consideration the facts and circumstances surwhether he was dead or alive.</p> <p>8. APPELLATE PRACTICE: Instructions: Assignment of Error Not Briefed Assumed Abandoned. Where an alleged error in refusing instructions asked by defendant is not briefed by counsel, it will be assumed that it is abandoned.</p>