Volume 204 — Missouri Reports

— Now. W. B. Teasdale, Judge. The court should have directed a verdict for defendant for each of the following reasons: (a) There was no proof that the death of plaintiff’s husband was caused as charged in the petition, or by negligence of defendant in any respect, (b) The testimony showed that his injuries were due to his own carelessness, or at best resulted from his voluntarily taking unnecessary chances in doing his work, (c) His injuries and death were in law accidental.

— Row. Hugh Dabbs, Judge. (1) The contracting of the debt, the after-acquiring of property and the fraudulent conveyance of the property, the debt having been contracted prior to the • acquiring of the lots in controversy, and being the very means used in the purchase afterwards, made McMunnigal’s property subject to the execution of defendant Aylor. Bartels v. Kinninger, 144 Mo. 370.

— Hon. H. G. Timmonds, Judge. (1) The trial court was without jurisdiction to hear and determine the issues and matters set up in defendants’ answer affecting the title to real estate. R. S. 1899, sec. 564; 17 Ency. PL and Pr., 670; 12 Ency. Pl. and Pr., 135; 28 Am. and Eng. Ency.

<p>1. PARTNERSHIP: Existence: Contract: Intention. Except where parties have held themselves out as copartners and credit has been extended to them as such, when in fact they were not partners between themselves, a partnership is a relation between two or moré competent persons resulting from a contract, and accordingly only exists where the parties intended to enter into á contract of partnership. A contract, whieh it is contended made the parties thereto partners, like other contracts, must be construed- according to the manifest intention of the parties, and that intention must be ascertained from the contract itself and the surrounding circumstances.</p> <p>2. -: Borrowing Money: ■ Interest as Bonus: Undisclosed Principal. An agreement by which one of the parties thereto agreed to give the other a one-fourth interest in a mine as a bonus for loaning him $25,000 to be used in purchasing and operating the mine, did not make the lender a partner of the borrower, who was also the purchaser of the mine; nor did that agreement constitute the lender an undisclosed principal of the borrower.</p>

— Sow. Frcmk B. Bearing, Judge. (1) Respondent was injured by Ms own negligence in putting Ms arm in peril wben bis duty and tbe exigency of tbe situation did not imperatively demand it. An employee bas no right, moral or legal, to put Ms life or limb in peril unless bis duty and tbe exigency of tbe situation concur in requiring bim to do so. Doerr v. Brewing Co., 176 Mo. 556; Smith v. Box Co., 193 Mo. 732.

— Hon. Ií. A. Anthony, Judge. (1) Delivery is not essential to the transfer of title. • The intention may be proven by express declaration or be inferred from the circumstances, and particularly where everything is done besides delivery, including payment of the purchase price. Tiedeman on Sales (1 Ed.), secs. 84, 86; Nance v. Metcalf, 19 Mo App. 183.

<p>1. SCHOOL LANDS: Title. The counties never had title to school lands (sections 16) granted by the United States to the State of Missouri by the Act of Admission in 1820, for the use of the inhabitants of the townships in which the lands are located, but by article 2, chapter 122, Revised Statutes of 1899, county courts are made trustees to sell or lease such lands, collect the rents, etc.</p> <p>2. -: Limitations. The Statute of Limitations ran against the legal title of the State to school lands by. the Revised Statutes of 1855 (art. 1, chap. 103, R. S. 1855); and where plaintiffs and those under whom they claim paid the county for school land, and have been in the actual, open, notorious, continuous and hostile possession of it since 1853, claiming title thereto, they have the absolute title.</p> <p>3. -: Parties Defendant. Whether or not the judges of the county court and the sheriff should have been made parties defendant to a suit to have the title to school lands decreed to be in plaintiff and to enjoin the county, the court and the sheriff from selling them, is a question that could have been raised by demurrer or answer, and if not so raised it was waived.</p> <p>4. -: Injunction to Restrain Sale: Cloud on Title. An injunction, as an original and independent proceeding, will hot lie to try title to real estate; nor does section 650, R. S. 1899, the statute in reference to quieting titles, authorize such a • suit. But a court of equity has the power to prevent a cloud from being cast upon title; and if that is the purpose of the suit, and the petition charges that the county court and the sheriff are about to sell school lands belonging to plaintiffs, the injunction will be entertained; and they Will be permitted to try the title, for such a sale would cast a cloud upon their title.</p>

Louis City Circuit Court. — How. Warwick Hough, Judge. (1) The physical facts testified to by both plaintiff’s and defendant’s witnesses show conclusively that deceased’s arm could not have come in contact with the northbound car in the manner as described by plaintiff’s witnesses. Payne v. Railroad, 136 Mo. 562; Hook v. Railroad, 162 Mo. 581; Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129 Mo. 373; Spero v. Railroad, 102 Mo. App. 250.

— Eon. L. B. Wood-side, Judge. One who pledges certificates of stock, notes or other obligations as collateral security has no right to their possession or to sell or dispose of them until he has paid, or offered to pay, the debt for which they stand pledged. Schaaf, Adm., v. Fries, 90' Mo. App. 3; Doak v. Banks, 6 Ired. (N. C.) 309; Durant v. Einstein, 35 How. P. 223; McClintock v. Bank, 120 Mo. 127; Tally v. Friedman’s Savings Co., 93 U. S. 321.

— No». A. N. Waller, Judge. (1) The petition does not state a cause of action, (a) It alleges there was a settlement in full by defendant, of the contract made by him with plaintiff, (b) There is no contract set out or pleaded in either count of plaintiff’s petition. A contract, to form- the basis of a cause of action, must be pleaded, or set out, either in the language of the contract, or stated according to its legal effect. Pye v. Eudder, 7 Mo. 548; Hill v. Barrett, 14 B..

Louis City Circuit Court. — Eon. Warwick Hough, Judge. The demurrer to the evidence should have been sustained. In an action at law if a plaintiff has received money from defendant and which is intended by defendant as a consideration for a release of the cause of action sued on, it is a prerequisite to plaintiff’s right to sue that promptly on discovery of the fraud he return or offer to return the defendant the money thus received.

— How. Wm. C. Ellison, Judge. (1) The harden of proving that testator was of sound mind, that is, of testamentary capacity, is on proponent of the will, throughout the trial. Norton v. Paxton, 110 Mo. 462; J ones v. Roberts, 37 Mo. App. 173. If there is any substantial evidence, direct or inferential, that testator was not of testamentary capacity, or that the pretended will was the result of undue influence, the case must go to the jury. Knapp v. Hanley, 108 Mo.

Transferred from St. Louis Court of Appeals. (1) Tbe demurrer to tbe evidence should bave been sustained; plaintiff bimself testified that be bad no contract in writing but relied on a verbal understanding with tbe judges of the county court when they were not in session. A county cannot be bound by this kind of contract. R. S. 1899, sec. 6759 ; Woolfolk v. Randolph Co., 83 Mo. 501; Heidelberg v. St. Francois Co., 100 Mo. 69; Crutchfield v. Warrensburg, 30 Mo. App. 456.

— Hon. W. W. Graves, Judge. (1) The deed made June 5, 1857, is to he construed in the light of the statutes of 1855, chapter 32, section 5, and similar statutes down to the present time. R. S. 1899, sec. 4592. Appellant contends that the words “children and assigns,” used in the deed, are words of procreation, intended to be used in that sense, and that the statutes above cited would vest a life estate only in James F. White, remainder in fee to his children.

— Row. J. D. Perkins, Judge. (1) The petition for divorce was sworn to by plaintiff’s stepfather, the defendant in this action, who was described in tbe caption of tbe petition as tbe next friend of plaintiff and who acted as such next friend in the divorce proceeding under appointment by the court in which the petition was filed. This was a sufficient compliance with the divorce statute requiring an affidavit to accompany the petition.

— How. Chas. D. Stewart, Judge. (1) Tlie power in the will did. not authorize Ellen Dougherty to mortgage the land. Price v. Courtney, 87 Mo.- 387; McDonald v. Quick, 139 Mo. 484; Garland v. Smith, 164 Mo. 1. (2) A-court of equity does not interfere to correct an instrument “unless it also appears that its interference is necessary to prevent the perpetration of a fraud or some injustice.” Mann v. Best, 62 Mo. 496; Ins. Oo. v. Landis, 50 Mo.

<p>1. PLEADING: Requirements: Counterclaim: Proof. The Code of Civil Procedure contemplates that pleadings shall be in writing and signed by counsel; that a cause of action shall be stated in a plain and concise way, consisting of acts constituting it; that no allegation shall be stated which the law does not require to be proved, and that only substantive facts shall be stated. And the converse inevitably obtains, namely, that material facts not in writing shall not be proved at the trial, that proof and allegations must correspond, and that no recovery can be had on a new or different cause of action than that marked out in the written pleadings. And these rules apply to counterclaims as well as to petitions.</p> <p>2. -: -: -: -: Recovery in Excess of /^'legations. The defendant cannot recover on his counterclaim damages in excess of the amount specified in the answer, and for things not marked out by his specifications or general allegations, although his proof shows further or extraneous'damages.</p> <p>3. -: -: -: -: -: Amendment: Countervailing Proof. But had he amended his answer before, during or after trial to conform to his proof, or if plaintiff adopted defendant’s new issues as within the answer and offered countervailing proof on such extraneous issues and. joined in submitting them to the jury (or court), the judgment for defendant in excess of the amount originally pleaded, or for the elements of damages not originally pleaded, may take on a different form of appeal.</p> <p>4. SALES: Uses to Which Article is to be Put: Damages: Proof. The answer charges that plaintiffs knew that the pipe ordered was to be used in defendant’s new cooperage plant in drying its .cooperage stuff, and so knowing undertook to sell and did sell such pipe as would be fit for such particular use, and that defendant bought the pipe under a warranty to that effect and installed it, relying bn the contract and in ignorance of its faults. Held, that the answer was sufficient to authorize a judgment against plaintiffs for consequential damages for failure to perform their duty, such as loss in having to shut down the factory, loss of staves made worthless, etc.; but to sustain such judgment there must have been either an express warranty, or there must have been such proof that plaintiffs knew the particular use to which the pipe was to be applied and undertook to furnish pipe suitable to that use as amounts to an implied warranty; .and in this case there is no such proof.</p> <p>6. -: -: Implied Warranty: Trust. Where the seller contracts to sell pipe to be applied to a particular use, so that the buyer necessarily trusts to the judgment of the seller, and. does not rely upon his own judgment, there is an implied warranty that the pipe shall be reasonably fit for that purpose; and if it fails to measure up to that standard, the buyer may recover consequential damages.</p> <p>6. -: -: ———: Damages. Damages that may be recovered by the buyer for a breach of the seller’s implied warranty are of two kinds: first, such as arise naturally, according to the usual course of things, such as, for instance, where the article is retained, the difference between its actual value at the time of the sale at the place of delivery and what its value would have been if it had been as warranted; second, such as may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract as the probable result of the breach. Damages of the second class are consequential, and if the pipe sold was to be fit for supplying steam heat to kilns for drying staves manufactured by a cooper, and it proves unfit for that use, without negligence on the buyer’s part, the seller is liable for the damage.</p> <p>7. -: -: -: -: Proof. If the seller knew nothing of the particular use to which the pipe was to be applied, he did not contract with a view to that use, and, hence, there was no implied warranty and the buyer is not entitled to consequential damages from the seller, even though the pipe proves wholly unfit for the use the buyer had in mind when he bought it</p> <p>8. -: -: Knowledge of Unfitness. Where the defects in the pipe became fully known to the buyer while it was being installed in his plant, he cannot breed and multiply actionable damages against the seller by a use thereof through a year or longer.</p> <p>9. ———: Loss of Purchased Article. Where the pipe was to be delivered at East St. Louis and there reloaded and then shipped to defendant’s plant in Missouri, the buyer cannot recover for any shortage in the pipe which occurred after the reshipment in East St. Louis.</p> <p>10. -: Discounts: Decimal and Common Fractions. Where both decimal and common fractions were plainly used and set down in the correspondence in regard to the prices and discounts, and the proof shows that under the trade usage discounts were expressed by using indifferently both kinds of fractions, the buyer may not, in the absence of fraud or deceit, predicate a defense to tbe price claimed by the seller, upon his own failure to recognize, or comprehend the office of, a decimal point or decimal fraction when he saw it.</p>

Transferred from Kansas City Court of Appeals. (1) Plaintiff was not an adjoining owner within the meaning or protection of the statute requiring railroads to fence their right of way through inclosed lands and cannot, therefore, recover. Ferris v. Railroad, 30 Mo. App. 122; Geiser v. Railroad, 61 Mo. App. 459; Railroad v. Hollingsworth (Tex.), 68 S. W. 724; Railroad v. Huffman (Tex.), 71 S. W. 779.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. (1) It was admitted that the defendants Brinckwirth and Nolker were not named as parties to the case of City v. Hamilton et al.; that they were not served personally or by copy or by ordinary order of publication, and that the only jurisdiction of the court in that case over said defendants or their property was obtained by the city counsellor’s notice, dated December 13, 1895.

— Now. W. W. Graves, Judge. (1) The court erred in admitting in evidence the decree of the court of common pleas of Ohio, and in giving to said decree the force and effect of setting aside the deed from Dixon Brown to Catherine A. Brown to lands located in Henry county, Missouri. Bank v. Bank, 155 Mo. 103; 13 Am. and Eng. Ency. Law (2 Ed.), 988.

<p>1. CONVEYANCES: Record: Subsequent Grantee: Quitclaim Deed:' Consideration. Hayden in 1861, by warranty deed, for an expressed consideration of $640, conveyed land to Moore, and that de’edT was recorded in 1874; and in 1863 Hayden, by quitclaim deed, and for a recited consideration of “natural love and affection and five dollars, the receipt of which is hereby acknowledged,” conveyed the same land to Josephine Hayden, and that deed was recorded in 1868. The land was wild and is not in the actual possession .of anyone. There was no evidence that Josephine had any notice or actual knowledge of the prior deed to Moore, nor is there any evidence of fraud or collusion between her and the grantor. Held, that Josephine took the title.</p> <p>2. -: Consideration. It is not necessary that the considera-. tion for a deed be adequate in value. Although small or even nominal, in the absence of fraud, it is sufficient to support a contract entered into upon the faith of it. Five dollars or any other stated sum of money is a valuable consideration.</p> <p>3. CONVEYANCES: Quitclaim Deed; Notice. The rule that a quitclaim deed is notice of pre-existing equities and that the grantee and those who claim under the grantee took with notice that the grantee’s title was questionable, has no application where the grantee in the quitclaim acquired the title for value and without notice of the former unrecorded deed.</p> <p>4. -; -: -: Adequate Consideration. Where the-controversy is between the grantee of a duly recorded deed and the grantee of a prior unrecorded deed from the same grantor, the consideration for the latter must be such as the law denominates a valuable consideration as distinguishable from a good consideration. But that rule is not to be extended to mean that the purchaser under the recorded deed must have paid a full and adequate consideration.</p> <p>5. -: Inadequate Consideration: Fraud. In the absence of fraud, the inadequacy of the consideration paid cannot be shown against a recital of consideration, for the purpose of defeating the operative words of the deed.</p> <p>6. -: Fraud. Unless the pleadings charge that the grantee in the qhitclaim deed which expressed a nominal consideration, by fraud procured the deed from the grantor, the issue of fraud is not in the case. Fraud must be both alleged and proved.</p>

Transferred From St. Louis Court of Appeals. (1) It is evident under the authority of the Toomey Case that defendant was doing an old-line insurance business. Defendant admitted at the trial of this cause that its laws affecting the Endowment Eank- have not been changed since then, and that they are doing business on the same plan now that they were then.

Transferred from Kansas City Court of Appeals. Remanded to Kansas City Court of Appeals. In order that the Court of Appeals be divested of jurisdiction on. the ground that a construction of the Constitution is involved, it must plainly appear upon the face of the record in the appellate court that the question of a particular construction thereof was raised, passed upon and the ruling thereon excepted to in some appropriate manner, by the losing party, in the trial court.

— Hon. James Gibson, Judge. (1) The filing by Judge Gibson, on December 5, 1903, of the bills of exceptions with his objections attached thereto, made it a part of the record in the cases, to be reviewed in this court. “The statements in the bills are assumed to be true, notwithstanding the statement of the court that they are not true.” Norton v. Dorsey, 65 Mo. 376; State v. Snyder, 98 Mo. 562; sec. 732, R. S. 1899.

<p>APPELLATE JURISDICTION: Ejectment: Value of Improvements. The Supreme Court does not have jurisdiction over an appeal from a judgment which grew out of an independent proceeding, by an unsuccessful defendant in an ejectment suit, to recover the value of the improvements made by him upon the land involved in the ejectment. Such judgment does not involve title to real estate. It is 'purely and simply a money judgment. Nor Is such proceeding, where the answer in the ejectment was a general denial, such a continuation of the ejectment suit as to give the Supreme Court jurisdiction over the appeal, but a separate and independent suit. [Disapproving the dictum in Stump v. Hornback, 109 Mo. 1. c. 279, where it is said that the proceeding to recover for improvements was* designed merely to supplement and continue the ejectment suit out of which it grew.]</p>

Court. — Hon. Henry G. Riley, Judge. (1) “No contract for the sale of lands, made by an agent, shall be binding upon tbe principal unless said agent is authorized in writing to make such sale.” R. S. 1899, sec. 3418; Greening v. Steel, 122 Mo. 287. (2) The authority of an agent must appear sufficiently to identify the land. That fact cannot be supplied outside. Johnson v. Pecht, 185 Mo. 335.

— Hon. Henry C. Riley, Judge. (1) The contents of lost and destroyed judgments may be shown by parol. Gribson v. Vaugbn, 61 Mo. 418; Kidd v. Gluibar, 63 Mo. 342; McClanahan v. West, 100 Mo. 321. (2) The tax deed was prima facie evidence only of the matters therein recited, and that the law required to be recited, and no more. See. 3150, R. S. 1899; Powell v. Greenstreet, 95 Mo. 15.

— Hon. Henry C. Riley, Judge. (1) This is an action to enforce a vendor’s lien, which has always been held to be an action in equity. Dickerson v. Fisher, 137 Mo. 342; Talbot v. Roe, 171 Mo. 421. And this is true even if the action be regarded, as it is, in a sense a suit for specific performance. Taylor v. Williams, 45- Mo. 80'; Sease v. Cleveland and Coy, 141 Mo. 488.

— Eon. A. D. Burnes, Judge. It is well settled in this State that matters outside of the record, and even the bill of exceptions, cannot be used to contradict the record. The record in this case shows that on the same day that the verdict was returned by the jury, the plaintiff filed motion for a new trial, and also that the plaintiff filed motion in arrest of judgment. Young v. Downey, 150 Mo. 317.

— Hon. Alonzo D. Burnes, Judge. (1) The petition shows no equity in plaintiff’s claim as against defendant Wright, because no scienter is alleged and plaintiff had her remedy at law. R. S. 1899, sec. 647; Cadwaleder v. Atchison, 1 Mo. 659; Cabanne v. Lisa’s Exr., 1 Mo. 683; Alnut v. Leper, 48 Mo. 319; Thias v. Seiner, 103 Mo. 314; Lenox v. Harrison, 88 Mo. 491; Jones v. Paul, 9 Mo. 293; Merry v. Fremon, 44 Mo. 518.

<p>1. APPELLATE JURISDICTION: Motion to Affirm. If the appellate court kas no jurisdiction of tbe appeal, it will not pass on the merits of the respondent’s motion to affirm the judg meat on the ground that the appellant’s abstract does not comply with the rules of the court.</p> <p>2. -: Title to Real Estate: Priority of Liens. Where the most that can be said of appellant’s petition is that it seeks to have the instrument sued upon-declared to be a first lien on land and to have that lien foreclosed, and, the judgment if one had been entered for him might have been satisfied by a payment of money, title to real estate is not so involved as to give the Supreme Court jurisdiction of the appeal.</p>

— Eon. J. L. Fort, Judge. (1) This action falls directly within the third clause of the statute and is barred by said statute. R. S. 1899, sec. 4272; Hoester v. Sammelman, 101 Mo. 619; Robsahl v. Lack, 35 Mo. 316. (a) The statute begins to run from the time the cause of action accrues. The cause of action accrues as soon as the party has a right to apply to the proper tribunal for redress.

— No». J. L. Fort, Judge. (1) The court should have entered its decree cancelling the note, deed of trust and chattel mortgage as the evidence clearly shows the same to have been obtained by reason of the threatened criminal prosecution by the directors and officials of respondent bank, of William E. Lacks, on the charge that he had embezzled the one thousand dollars which was stolen on the morning of the 10th day of July, 1902, by the negro janitor, from respondent bank.

— Now. L. B. Woodside, Judge. (1) The evidence was wholly insufficient to warrant the court as a court of equity to declare a deed absolute on its face to be a mortgage. The evidence is not clear, cogent and convincing, and the facts and circumstances surrounding the transaction will not support the finding of the court.

<p>1. ATTORNEY’S LIEN. The Attorneys’ Lien Act is constitutional. It is remedial, and will he liberally construed.</p> <p>2. -: Without Notice. If an attorney has a percentage contract with a client to collect a claim from another, then, after suit brought and service of summons on such other, whether the attorney gave notice in writing as provided by section 2 of the Attorneys’ Lien Act or not, he has a lien upon his client’s cause of action which cannot be affected by any settlement between the parties before or after judgment. And if the settlement he made without the attorney’s consent before judgment, he need not press the suit forward to establish his lien, hut an independent action lies against the settling defendant, not strictly to enforce the lien, but against him who deforced the lien, for the value thereof.</p> <p>3. -: With Notice. If such percentage contract exist and written notice he given as provided by section 2 of the act, then such agreement operates from the date of the service of such notice as a lien upon the claim or cause of action and upon the proceeds of any settlement without his consent, for such percentage, which lien cannot be destroyed or impaired by any settlement between the parties, either before or after suit, or before or after judgment.</p> <p>4. -: Equity. Where the circumstances are such that the law affords no adequate remedy, then the attorney’s lien may be established in equity against any resulting fund (the fruits of the litigation) which may he within reach.</p> <p>5. ¿-: Judgment: Final and Not Final: Proceeding: Amount. If a percentage contract exist and a judgment has been obtained which has not become a finality (for instance, where a motion for a new trial is pending or an appeal has been taken), a compromise settlement and release in which plaintiff’s attorney is ignored and to which he does not assent, does not destroy his lien. But the release of the judgment may he opened up, on motion, in the nature of a special proceeding, and the discharge be set aside pro tanto, so as to let in his lien; and it may he enforced in the original case by an execution for the amount thereof, to avoid circuity of action. In such case, the settlement being honest, the amount or value of the lien is controlled by the settlement made by the client, and is not necessarily controlled by the amount of the judgment itself; but otherwise, if the judgment had become a finality. And the same remedy is open to the attorney where the judgment is compromised and settled without his consent after it has become final.</p> <p>6. -: After Appeal: Motion to Affirm: Remedy. Where defendant has after appeal taken settled with plaintiff who authorized a satisfaction of the judgment, ignoring his attorney with whom he had a percentage contract, notice of which had been served on the defendant, who has abandoned the appeal, the appellate court will not, upon motion or intervening petition of the attorney, engraft on the cause a special proceeding involving issues of fact (such as the existing of the agreement, the amount the attorney should recover, etc.) and afterwards set aside the release of the judgment made subsequent tO' the appeal, affirm the judgment to the extent of the lawyer’s lien and enforce such lien by awarding execution. The attorney’s course, if he does not wish to abide a determination of the appeal when the case is reached on the docket, is to move to dismiss the appeal, which will be sustained in case the judgment has been satisfied, and then pursue his remedy in the trial court.</p> <p>7. -:-: Failure to File Bill of Exceptions within the time allowed is not indispensable to an appeal, nor does it authorize an advancement of the cause upon the docket. The record proper is still before the court for examination.</p> <p>8. -: -: Supreme Court: Original Jurisdiction. The Supreme Court is, for most causes, a court of appellate jurisdiction. It has original jurisdiction in some matters, but it will not under its powers to issue and try certain original or extraordinary writs, entertain every motion or proceeding calling for a settlement of issues of fact, though they be both original and the remedy asked unusual.</p> <p>9. -: -: Appellate Jurisdiction. If the judgment was for $8,000, and was compromised, and the only issue before the court is the one engrafted on to the case by the attorney’s motion to affirm the judgment to the extent of the attorney’s percentage part thereof, amounting to .one-half or less, the amount in dispute does not, in any event, exceed four thousand dollars, and the Supreme Court is without appellate jurisdiction to try that motion.</p>

Louis City Circuit Court. — Lío». Jiohn A. Blevins, Judge. (1) (a) Instruction 9 given for defendant is entirely erroneous because it directs a verdict for defendant on the sole fact or finding that- plaintiffs’ son was guilty of negligence in running across the street in front of the car, so close as to prevent the motorman by ordinary care from avoiding striking him.

<p>NO ABSTRACT: Dismissal. A filing of a complete transcript in an ejectment, without any abstract of the record setting forth the evidence, wihich must necessarily be reviewed in order to pass upon the questions involved, there being no index of the manuscript record, nor any reference to the evidence of the respective witnesses in the brief, will not save a dismissal of the appeal for failure to comply with rules 12 and 13.</p>

Francois Circuit Court. — Hon. Chas. A. Killian, Judge. (1) The information does not charge murder. In fact, it wholly fails to charge that Francis Burns, or any other person, for that matter, died from the wounds received at the hands of defendant, George Horn. This is an essential averment, and cannot be dispensed with nor supplied by intendment or implication.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. For the purpose of determining whether a case should have been submitted to the jury, the testimony on the part of the plaintiff should be taken as true, and every reasonable inference therefrom in plaintiff’s favor should be made. Dorsey v. Railroad, 83 Mo. App. 528; Staube v. Christopher & S. A. I. & P. Co., 85 Mo. App. 640': Pauck v. St. Louis Dressed Beef Co., 159 Mo. 467.

— Hon. W. A. Davidson, Judge. (1) The court committed prejudicial error in excluding the evidence of witness Rapp, a qualified expert, as to the value of building stone in a quarry, thus excluding from the consideration of the jury damages to the extent of many thousands of dollars sustained' by appellant. There was no other evidence produced, or, under the court’s ruling, could have been produced.

— Now. Howard Gray, Judge. (1) The ordinance must specify all the statutory requirements, and the power can only be- exercised under such an ordinance. R. S. 1899, secs. 5847, 67591. Public sewers may only he established at such points, to such extent, of such dimensions and under such regulations as may be provided by ordinance.

— Eon. William L. Jarrott, Judge. (1) The demurrer to the evidence should have been given. The petition declares upon a defective construction; that is, that a certain box culvert in a dirt street was negligently and carelessly removed and the place filled in with dirt. Haines v. Pearson, 100' Mo. App. 551.

<p>1. NEGLIGENCE: Neither Looking Nor Listening. Notwithstanding the train was running at a very rapid rate (forty to- fifty miles per hour) within the corporate limits of the city, in violation of an ordinance, and without ringing the hell or sounding the whistle, yet if a woman, driving an open huggy, in broad daylight, with an unobstructed view of forty or fifty feet between the houses and track as she approached the crossing, and with an unobstructed view down a straight track for more than a mile, drove her horse in a trot upon the track, without any effort to stop or to increase or decrease her speed, and without looking up the track in either direction or in anywise turning her head or listening, and was struck by the train ■ just as the buggy got on the track, she was guilty of such ‘ contributory negligence as bars a recovery by plaintiffs for her death.</p> <p>2. -: -: Contributory Negligence. Where the train could have been seen while deceased was yet in a place of safety, and one of two conclusions is inevitable, either that she did not look and heedlessly drove upon the track and was killed, or that she did look and saw the approaching train and attempted to cross ahead of it, she was guilty of such contributory negligence as bars a recovery by her children.</p> <p>3. -:. -: -: Presumption Ordinance Was Being Obeyed. If a traveler sees or has reason to believe that the train is being run in excess of the ordinance rate, he has no right to risk his life on the presumption that the ordinance is being observed. And where the traveler had an unobstructed view for forty or fifty feet before reaching the crossing, > and the time was daylight and the buggy top was down, and the train could have been seen had she looked, and all the evidence on the issue as to whether or not she did look, though of a negative character, is that she did not look or attempt to look, there is no ground in the case on which to construct a rational presumption that she trusted the engineer was obeying the ordinance and so trusting concluded she could cross in safety.</p> <p>4. --: Imputed Negligence. A distinction is made between the mother’s own positive contributory negligence which bars the. right of her children to recover for her death, and the imputed negligence of the minor daughter who was in the buggy with her mother at the time her mother negligently drove upon the track, in this case and the case of Eugenia Stotler v. Railroad, 200 Mo. 107, the court holding in the daughter’s case that the contributory negligence of the mother could not be imputed to the daughter, who was not shown to have any control over the horse, and in this case, where the mother was the driver, that the plaintiffs' cannot recover because of the mother’s own contributory negligence.</p>

Louis City Circuit Court. — How. Horatio D. Wood, Judge. It is plain that the words inserted by tbe court into plaintiff’s instruction 1 carried tbe vice of defendant’s instruction 1 into plaintiff’s instruction 1, and made it erroneous. There was no substantial evidence on which to base defendant’s instruction 1. It is plain that there was no surrender of the premises before the expiration of the lease to the lessor.

— Now. James Gibson, Judge. (1) Plaintiff’s Exhibits ‘O” and “P,” incomplete letters from Benoist to Mrs. Blanchard, were admissible in evidence: They were complete in so far as the topics referred to were concerned. 1 Wharton, Ev. (2 Ed.), sec. 63; 1 Grreenleaf, Ev. (13 Ed.), sec. 566; Addis v. Graham, 88 Mo. 202; Lee v. Alexander, 9 B. Mon. 25. (2) Suit in equity was appropriate proceeding to enforce claim of the plaintiff.

— Hon. Hugh Dabbs, Judge. (1) The court refused to consider the question of the carelessness and negligence of defendant Hannah M. Kingston in not appearing after she had knowledge of the existence of the suit against herself and her. husband, which was error. On October 17, 1902, a_s shown by her letter of that date, she had knowledge of the fact that the bank had brought a suit and named her as a party to that company.

— Hon. E. M. Hughes, Judge. (1) The circuit court of St. Louis city improperly considered and granted plaintiff’s application for a change of venue, (a) The application was presented too late, the trial having begun. Fugate v. Carter, 6 Mo. 267; Junior v. Power Co., 127 Mo. 79; State v. Lehman, 182 Mo. 424. (b) No notice was given to defendant of the application. Sec. 822, R. S. 1899 ; Railroad v. Holliday, 131 Mo. 440'; State v. Lehman, 182 Mo. 424.

Louis City Circuit Court. — Row. Warwick Hough, Judge. (1) The court erred in refusing appellant’s instruction in the nature of a demurrer to plaintiff’s evidence, and also erred in refusing the peremptory instruction at the close of all the evidence.