Volume 204 — Missouri Appeal Reports

<p>1. APPELLATE PRACTICE: Finding of Fact by Court Sitting as . Jury: Effect. Where the parties waive a jury and submit questions of fact to the court and there is evidence in the record sufficient to warrant the finding of the court on the questions, of fact, that finding, like the verdict of a jury, will not be disturbed.</p> <p>2. WILLS: Legacies: Legatee Dying Before Testator: Legacy Lapses. Unless a legatee died subsequent to the date of the death of his testator, his administratrix would not be entitled to have the legacy paid to her as such. „</p> <p>3. EXECUTORS AND ADMINISTRATORS: Legacies: Death of Legatee Subsequent to Testator’s Death: Burden of Proof Rests on Administratrix Claiming Title to Legacy. The burden of proof rests on an administratrix claiming title to a legacy to prove that at the time of the trial her intestate was dead and that he died subsequent to the date of the death of the testator. .</p> <p>4. DEATH: Disappearance: Common Law Presumption of Death Prom Absence: Applies to Non-resident. While the claimant, administratrix, cannot rely upon the statutory presumption of death as provided in section 6340, Revised' Statutes 1909, for the reason that her intestate did not reside in the State of Missouri, and did not go from this State and fail to return here for seven consecutive years, still there remains in this State, outside of this statute, the common law presumption that the seven-year unexplained absence raises a presumption of death.</p> <p>5. -:-:-: No Presumption as to Time of Death. The law raises no presumption as to the time of death during the seven-year period; there being no presumption as to whether intestate died at the beginning or at the end of the period, or at any particular time within the period.</p> <p>6. -:-:-: Evidence: Letters of Administration Primafacie Evidence of Death. Letters of administration are primafacie evidence of the death of the person on whose estate they are issued, however, the prima-facie case thus made is of the weakest and most inconclusive character, and slight evidence that the person was still living when the letters were granted would be sufficient to overthrow the presumption of death arising from the grant .of letters.</p> <p>7. -: -: -: -: Evidence Insufficient to Rebut Presumption of Death from Seven Years’ Absence. Testimony of a mother giving facts and circumstances surrounding the disappearance of her son, etc., held, not sufficient to rebut the primafacie case made by the issuance of letters of administration on his estate and the presumption of death raised by the seven-years’ unexplained absence.</p> <p>8- -: - — : -: -: Legacies: Legatee Surviving Testator: Sufficiency of Evidence. In an action by an administratrix, claimant for a legacy, etc., where the evidence surrounding the disappearance of her intestate indicates that he ran away from home to get away from restraints put around him by his father and was a strong, healthy boy when he disappeared about fourteen months before the testator’s death, together with the presumption that one holds on to his life as long as possible, etc., held sufficient to support the finding of the court sitting as a jury that he was dead and that he survived the testator.</p>

<p>1. NEGLIGENCE: Actionable Negligence: Elements. Negligence is a relative term, and in order to show one guilty of actionable negligence it must first be shown that he owed some duty to another which he failed to perform and that his failure resulted in injury to the other.</p> <p>2. TRIAL PRACTICE: Negligence: Question for Court when Facts are Undisputed. Whether negligence is a question for the court or the jury must be determined by the facts of the particular case, and, when the facts are undisputed or so clearly proven as to admit of no doubt, it is the duty of the court to apply the law without submitting the question to the jury.</p> <p>3. NEGLIGENCE: Trial Practice: Evidence: No act of Negligence Shown: Duty of Trial Court to Direct Verdict. In an action for the value of a mule alleged to have been killed through negligence in directing the driver of plaintiff’s team to go to a brick yard and procure cement for a customer for whom plaintiff agreed to haul it, etc., evidence reviewed and held that the facts are such that all reasonable men must draw the same conclusion from them, namely, that the defendant lumber company was guilty of no act of negligence, and therefore the question of negligence was one of law for the court, and consequently it was the duty of the court to have directed the jury accordingly.</p>

Writ of Error to Circuit Court of the City of St. Louis.— Eon. George E. Shields, Judge.

Louis. —Hon, Thomas.L. Anderson, Judge, (1) When the contract, signed by defendants, per Hobbs, their agent, on April 21, 1909, and signed by Massey on April 24, 1909, was executed by the parties, neither defendants nor Hobbs were the agents of the owner, Young.

<p>EXECUTORS AND ADMINISTRATORS: Claims Against Estates: Appeals: Judgment Cannot Be Classified as Demand Against Estate Pending Appeal With Bond. A judgment of a trial court rendered against one in his lifetime, who dies pending an appeal therefrom with bond, cannot during the pendency of such appeal, be classified as a fourth-class demand against his estate, though presented in due time under the provisions of section 190, page 97, Laws of 1917, the appeal bond duly approved by the circuit court, operated, by command of section 2042, Revised Statutes 1909, to stay the execution of the judgment.</p>

<p>Appeal from the Circuit Court of Audrain County-.— Hon. Ernest 8. Q'antt, Judge.</p> <p>(1) The contract herein was made by the Contractor J. B. Evans Construction Company with the Board of Education of the Independent School District of Scranton, Green County, Iowa, and the contractor’s bond herein was executed to said School Board. Said contract and bond being given to a, board of Education, they Were intended for the security of the public generally, and action may be; brought on said contract and bond by any person who has sustained an injury in consequence of a breach thereof. Therefore, this appellant proceeds properly under the Iowa Statutes in bringing this action on the contract and contractor’s bond herein. Sec. 3467, Compiled Statutes of Iowa, 1897; Sec. 3467, Ann. Code of Iowa, p. 1284. (2) Where a contract for the erection of a school building is secured by a bond, requiring the payment of all claims for labor and material furnished, the subcontractor .or party furnishing materials to the contractor may rely for payments on the security afforded by the bond.- The bond here guarantees, under the statutes of Iowa, to all persons furnishing labor and material, regardless of lien, the fulfillment of all provisions of the contract and specifications, including payment of our labor and material bills. Hip-well v. National Surety Co. of New York, 130. Iowa, @56; 105 N. W. 318; Baker v. Bryan, 64 Iowa, 561, 21 Ni. W. 83. (3) Where a contract for construction is attached to and made a part of the bond given, and the undertaking of the bond is that the obligor shall comply with said contract in the time and manner therein provided, the effect of the bond is a security, not only for the performance of the work in the time and manner named, but also for the performance of every other covenant in the contract. Jordan v. Kavanuagh, 63 Iowa, 152, 18 N. W. 851; Wells v. Kavanaugh,. 70 Iowa, 519, 30 N. W. 871. (4) Like other contracts, a building contract must generally, when to be performed in a state or country other than where made, he governed by the laws of the country or state in which it is to be performed. The work and building contracted for here was performed and erected in the State of Iowa; therefore, the contract and bond herein are to be construed according to the laws of Iowa. 9 Corpus Juris., 707. (5) Where a building and construction contract is incorporated in several writings, all the writings are to -be construed together, and effect given, if possible, to every part of the contract, provided they relate to the same subject-matter, and are properly connected or referred to. Plans and specifications, if not contained in the contract itself, but referred to therein or annexed thereto, must be construed therewith. 9 Corpus juris., 709.</p> <p>(1) There was a total variance between the bond and the contract alleged in the petition and the instruments offered in evidence. Hence plaintiff made out no case and the peremptory instruction for respondent necessarily had to be given by the court. (2) (a) The bond runs to the school district only and is conditioned only upon loss or damage to the obligee and provides only that the obligee school district shall be’ indemnified against compulsory payment of claims, liens, etc. (b)' On such bond, no action can be brought by a material-man. Green Bay Lbr. Co. v. Independent School District, 121 Iowa, 633, 97 N. W. 72!; Weller v. Goble, 60 Iowa, 113, 23 N. W. 290; Hunt v. King, 97 Iowa, 88, 66 N. W. 71; Eau Claire-St. Louis Lbr. Co', v. Banks, 136 Mo. App. 44. (c) Section 3467, Code of Iowa, 1897, creates no substantive rights. It is procedural, only, being found in chapter 3, “Parties to Action” of the part “Code of Civil Practice.” (3) There is not only nothing in the bond with respect to payment of materialmen but nothing in the contract whatsoever, regarding payment for material. Therefore, Jordan v. Kavanaugh, 63 Iowa, 162; Wells v. Kavanaugh, 70 Iowa, 519; Baker v. Bryan, 64 Iowa, 561, and Hipwell v. National Surety Co., 130 Iowa, 656, do not apply. Jordan v. Kavanaugh and Baker v. Bryan, are distinguished on this ground in Hunt v. King, 97 Iowa, 88; Weller v. Goble, 661 Iowa, 113, and Green Bay Libr. Co. v. School District, 121 Iowa, 663. (4) The provisions in the specifications written by the architect do not effect the provisions of the bond, as the bond, as given, complies strictly with the terms of the contract. The contract controls as against a conflicting specification. 9 Corpus Juris., par. 41, p. 710', also par. 4, p. 694. (5) Even if the provision of the specifications in regard to the giving of a bond were effective, the owner may accept any bond suitable to him, and acceptance of a bond without a condition provided for in the contract is a waiver of that condition. Electric Appliance Co. v. U. S. Fidelity & G. Co., 110 Wis. 434; Eau Claire Lbr. Co. v. Banks, 136i Mio. App. 44. -</p>

<p>1. COMMON CARRIERS: Injuries to Live Stock: Negligence: Evidence: Question for the Jury. In an action to recover the value of a jack shipped, which was delivered to shipper in a damaged condition and subsequently died, evidence reviewed' and held sufficient to take the case to the jury, and that the demurrers interposed by carrier were properly overruled.</p> <p>2. -: -: -: -: Burden of Proof on Shipper. In an action to recover the value of a jack shipped, which was delivered to shipper in a damaged condition and subsequently died, the burden of proof was on the shipper to make out a case of negligence against the carrier.</p> <p>3. INSTRUCTIONS: Common Carriers: Injuries to Live Stock: Not Error to Instruct on Facts from Which Negligence May Be Infer-ed. In an action to recover the value of a jack shipped, which . was delivered to shipper in a damaged condition and subsequently died, an instruction telling the jury that if they found that the jack was sound when shipped but was injured when he arrived, they might take that fact into consideration with all other facts and circumstances in evidence, if error, held harmless, in view of the evidence in the case.</p> <p>4. COMMON CARRIERS: Negligence: Limitation on Liabilty: Written Notice: Reduced Rate: Consideration. A provision in a contract between a shipper and carrier for the shipment of live stock, requiring notice in writing of injuries sustained during shipment, is a valid provision in contracts for intrastate carriage, if supported by good and valid consideration.</p> <p>5. -: -: Injuries to Live Stock: Notice. In an action to recover the value of a jack shipped, which was delivered to a shipper in a damaged condition and subsequently died, where it appeared that the jack was received at its destination in a damaged condition and limped, and the shipper called such fact to the attention of the carrier’s agent, who placed the jack in shipper’s control, and suggested that a named veterinary be sent for, such facts were actual notice of the injuries to the carrier and a consent to shipper to receive and care for the jack.</p> <p>6. --: -: -: -: Written Notice: Waiver. Where, in an action to recover the value of a jack shipped, shipper called the attention of the carrier’s agent to the damaged condition of the jack when unloaded at its destination, and such agent suggested that a veterinary he named be sent for to look after the jack, and consented that shipper receive and care for the jack, held a written notice of the injuries was waived.</p> <p>7. -: -: -: Limitation on Inability: Ineffectual Unless Agreed to by Shipper. In an action to recover the value of a jack shipped, which was delivered to a shipper in a damaged condition and subsequently died, the fact that the contract contained a statement on the part of the carrier that in case of loss of the jack or damage to it the amount of recovery should not exceed $100, could not operate to exempt the carrier from liability for damages exceeding such amount, such a limitation being no agreement between the parties as to the value of the jack, and not based on any consideration whatever, or covered by the reduced freight rate, but a mere arbitrary exaction or imposition of terms by the carrier itself, and held it was void.</p> <p>8. -: -: -: -: Shipper’s Failure to Accompany Live Stock: Carrier Not Absolved From Liability. In an action to recover the value of a jack shipped, which was delivered to shipper in a damaged condition and subsequently died, a clause in the contract requiring the shipper to accompany and take care of the stock while in transit and the shipper did not do this, in the absence of any showing held not to absolve the carrier from liability.</p>

Louis.— Horn,. Rhodes E. Gave, Judge. (1) Estoppel, applies under the facts and circumstances here. Plaintiff is but the, creditors and they waived their rights, elected- to forego pursuing the rights they waived and are now estopped to hold these defendants. It would be a double burden on them. 2 Cook on Corporations, sec. 548, p. 1016; Brooks v. Brooks, 174 Pa. St. 519; Dougherty v. Poundstone, 120 Mo.

Louis. —Eon. Rhodes E. Gave, Judge. (1) “Where entry into a safe is effected by the use of tools upon one of the outer doors, and money is feloniously abstracted from the money chest within the safe, which money chest is also opened by the use of tools, the insurer is liable upon a policy indemnifying against loss of money feloniously abstracted from the the money chest after entry into said safe by the use of tools or explosives and after entry into such money chest by the…

<p>1. Trustee in Bankruptcy: Individual Deht: Funds of Corporation. If an officer of a corporation undertakes to pay his individual deht by the check of the corporation, the trustee in bankruptcy of the corporation may recover the amount from the creditor. The Kaws 1917, p. 144, now require it to be shown that the creditor knew the check was drawn without authority of the corporation.</p> <p>2. Consent of Directors: Appropriation of Assets for Individual Fur-poses: Board. To show consent of directors that an officer of a corporation may appropriate the assets of the corporation to his individual purposes, it is necessary that the directors act as a hoard — their separate consent as individuals will not suffice.</p> <p>3. CONSENT: Individual Deht: Corporation Deht. Consent of the directors of a corporation that an officer may pay his individual deht out of the funds of the corporation is not shown when the proof is that such directors believed and though the officer’s deht was the corporation’s deht; their consent in such case, being that the officer might pay the deht of the corporation out of its funds.</p>

<p>1. Negligence:: Automobiles: Pedestrian.. It cannot be said as a matter of law that one who operates a swiftly but silently moving automobile at the rate of ten miles per hour, going in a westerly direction, who suddenly and without warning turns south and across the pathway of pedestrians and approaches within six or eight feet of them is not negligent, and it is erroneous to direct a verdict on such a state of facts.</p> <p>2. -: -: -: Proximate Cause. Where plaintiff In imminent peril as the result of the negligence of the defendant, falls and is injured in an attempt to avoid being struck, the negligence of the defendant is the proximate cause of the injury; the. principles of liability in such case are (1) that the peril must be' caused by the negligence of the defendant, (2) that the appre- ■ hension of the peril, from the standpoint of the injured person, f must have been reasonable, and (3) that the appearance of danger; must have been so imminent as to leave no time for deliberation.'</p>

<p>1. Pleading: Justice Courts: Statement.. A statement filed in a justice court to recover a real estate broker’s commission which gives the name of the debtor, the name of the creditor, the amount of the debt claimed and designates the real estate on which the commission is claimed, states a cause of action.</p> <p>2. Real Estate Brokers: Procuring Cause of Sale: Failure to Demur to Evidence. The failure to interpose a demurrer to the evidence and the joinder with plaintiff in requesting instructors is an admission that there is evidence upon which to go to the jury.</p> <p>3. -: General or Special Contract: Jury Question. Where the evidence was conflicting concerning the nature of the plaintiff’s contract with the defendant as to whether it was a general contract or a limited one to sell at a minimum figure, it was for the jury to determine the nature of the contract.</p> <p>4. -: Procuring Cause of Sale: Evidence Conclusion of witness. It was proper to exclude a question directed to the purchaser of defendant’s house at to whether the plaintiff’s efforts “had anything to do with you buying the property” as that was the question for the jury to decide; and it called for a conclusion on the part of the witness that if he did not rely upon the plaintiff’s judgment the plaintiff’s efforts did not result in effecting the sale.</p> <p>5. -: Nature of Contract: Instructions. Since the evidence as. to the nature of the contract plaintiff had with the defendant was conflicting, it was error to submit the case on instructions which assumed the contract to be as plaintiff contended and assumed that he had performed it.</p>

<p>1. Contributory Negligence: Street Car Crossing Automobile Guest: ' Bear Seat. A plaintiff was sitting on the rear seat of an automobile on invitation from the owner and driver, who with a companion, was on the front seat. They approached, an Intersection of two streets, in a city, one of the streets occupied by street car track. The driver and his companion saw a street car approaching in ample time to have stopped the auto had it been controllable; he made every effort but it would not respond. It would stop, jerk forward and stop again, until it got on the track and a collision followed. Plaintiff on the rear seat was Injured. He did not look in the direction the car was coming from until just before the collision. It was held that he was not guilty of contributory negligence as a matter of law; and that the mortorman of the street car seeing the trouble of the auto was having was guilty of negligence in not stopping his car.</p> <p>2. Contributory Negligence: Direct Besult: Must Have Caused the Injury. Contributory negligence to forbid a recovery in a personal injury' action must have directly caused the injury. And any act or omission of the injured person which would not have changed the result had action been taken, or the omission not have occurred, is not the proximate cause of the injury and hence is not contributory negligence in the sense of the law.</p> <p>8. Submission to Jury: Plaintiff’s Bights: Contributory Negligence, A party plaintiff is entitled to have his case submitted to the jury as it exists, and, notwithstanding the verdict is for the defendant, it is reversible error to peremptorily instruct that he is guilty of contributory negligence and can recover, if at all, only on the humanitarian rule, when the evidence leaves it questionable.</p>

<p>1. Accommodation Note: Original Parties. The cashier and manager of a bank asked a friend to sign a note for the accommodation of the bank that it might be shown as assets to the Bank Examiner - on his next visit, and at the same time assuring him that he would never be asked to pay it. And in order to show the transaction was not intended to involve an obligation for payment the cashier executed his own note to him for the same amount with the understanding it was not to be paid. It was held in an action by the bank, that these facts showed it could not recover on the note as it was accommodation paper without consideration.</p> <p>2. Parol Evidence:' Note: Consideration. Notwithstanding parol evidence is not to be received to vary the terms of a promissory note, yet in an action between the original parties, parol evidence is admissable to show the note was without consideration and given for accommodation.</p> <p>3. Evidence: Endorsement “Paid”: Consideration. A note while in the hands of the payee is endorsed “Paid July 1, 16,” with pen drawn through the endorsement by the attorney for the payee after receipt for suit. It was held that without explanation, the endorsement was strong evidence against the payee on the issue of no consideration.</p>

<p>Appeal from Livingston Circuit Court. — Hon. Ar.oh B. Davis, Judge.</p>

<p>1. PROMISSORY NOTES: Instructions. An instruction which directs a verdict for the plaintiff who claims as assignee of a promissory note if the jury finds that a payment'was made on the note is erroneous, in that it fails' to submit the question of the endorsement of the note to the plaintiff, and the execution of the note by the defendant’s intestate.</p> <p>2. WITNESSES: Wife of Deceased. In an action on a note against the administratrix of the estate who Is the wife of the deceased, she may testify on the question of the present reputation of a witness for the plaintiff as she knows it in the community where it is sought to impeach the witness; she is disqualified only as to transactions or conversations with the deceased.</p>

<p>1. BOARD: Indefinite Time: Indefinite Compensation: Limitations: Guardian: Contract: Administrator: Right of Action. A man went to the house of a husband and wife while sick and remained with them for three weeks, they boarded and nursed him, with jiothing said as to compensation. They then went with him to his own home (a small farm) and they boarded him and cared for his necessities for near two years, under an agreement without definite time and without specification of what compensation they were to receive further than that they should receive what would be reasonable. Near the end of two years he became insane and a guardian was appointed. The guardian contracted with the husband and wife to board and care for him and keep up the place. The length of their service was indefinite and their compensation not fixed. They cared for him for seven or eight years, when he died, and they presented a claim in the probate court, after the guardian had made final settlement and was discharged, against the adminstrator of his estate for board and expenses in caring for him and the farm. It was held that the claim for board and services under the contract with him before he became insane was barred by both the general Statute of Limitations and the specitl statute requiring claims against a guardian should be presented in two years. It was also held that they had no right of action against the administrator, but only against the guardian.</p> <p>2. RUNNING ACCOUNT: Insane Person: Guardian: Separate Account. An account against an individual, who becomes insane, continued on against the guardian under an arrangement with him is not a running account so as to take away the Statute of Limitations; it becomes broken on the appointment of the guardian and thereafter becomes two separate independent accounts.</p> <p>3. LIMITATIONS: Demands Arising During the Course of Guardianship. The statute that all .demands against an insane person’s estate not presented to the probate court within two years of publication of notice of guardianship shall be barred, does not apply to current claims arising during the course of the guardianship. .</p> <p>4. INSANE PERSON: Claims: Two Year Bar. In case of an insane person all demands against the ward or estate existing prior to guardianship must be presented or exhibited within two years or be barred.</p> <p>5. CLAIMS AGAINST GUARDIAN: Administrator: Probate Court. Claims against the estate of an insane ward cannot be made the basis of a claim against the administrator. They must be presented in the probate court against the estate of the guardian as provided by statute.</p> <p>6. CLAIMS: Contract of Guardian: Current Expenses: Exhibition: Final Settlement: Turning Over of Estate: Administrator. All claims against the estate of an insane ward arising out of contracts made with the guardian for the board and necessities of the ward, including expense of repairs, must he presented to the guardian that they may be included in the guardian’s final settlement with the probate court, to the end that the ward’s estate may he turned over to his administrator as required by law.</p>

<p>Appeal from Clay Circuit Court. — Hon. Ralph Hughes, Judge.</p>

<p>1. MANDAMUS: Recall of Officer: Statute: Petition: City Clerk: Voters: Voter’s Register. Where a statute of Missouri authorizes an election for the recall of a present incumbent in a municipal office by filing with the city clerk a petition containing the names of a certain per cent of the voters voting for Mayor at the last election, such voters to be ascertained by the city clerk from the “voters register.” It was held that the petitioners must appear to he qualified electors from the voter’s register, and that an application for mandamus to compel the clerk to submit the petition to the city council which does not allege, that the requisite number of petitioners were found on such “voter’s register” did not state a cause of action, or right to a writ of mandamus.</p> <p>2. CITY CLERK: Voter’s Register: Election: Quasi Judicial Duties. The statute (Laws 1913, sec. 19, p. 528) authorizes an election for the recall of a present incumbent in a municipal office by filing a petition with the city clerk containing the names of twenty-five per cent of the voters voting for Mayor at the last election, such voters to be ascertained by the city, clerk from the “voter’s register,” and if found sufficient to submit the same to the city council who shall order an election. It was held that to be qualified the petitioner’s name should appear on the “voters register;” and that in passing on the sufficiency of the petition the city clerk acted in a quasi judicial capacity and mandamus would not lie to compel him to submit the petition and his finding to the city council.</p> <p>3. STATUTE OF FOREIGN STATE: Construction Adopted. Where a statute is taken from that of another State the Supreme Court of which State has given it a certain construction, it is presumed the Legislature of the former State adopted that construction.</p> <p>4. ELECTION: Voter’s Register: Poll Books. Though there is no election hook or record specifically called, “voter’s registef,” yet where the statute uses that phrase in providing for a petition for an election to recall a municipal officer, it will be construed to mean the list of voters authorise^ bylaw to'b,g listed at an election, such (in the absence of registration) as the poll hooks.</p> <p>5. RETURN TO WRIT OF MANDAMUS: Specific and General Denial: Trial: Appellate Court. Where the return to an alternative writ of mandamus does not specifically and separately deny the allegations in the writ, making only a general denial; yet if the case is treated as at issue and so tried, without objection, it is too late to raise such point for the first time in the appellate cour.t</p>

<p>1. EXPLOSIONS: Escape qf Gas: Negligence: Ees Ipsa Loquitur. A. gas company is not an insurer, but is held to a degree of care commensurate with the dangerous character of the commodity it handles. The mere fact of an explosion does not make out a primafacie case or raise a presumption of negligence, the doctrine of res ipsa loquitur not applying.</p> <p>2. -:’-: -: Petition Construed. A petition which.alleges that the defendant negligently permitted a large quantity of gas to escape from the gas main adjacent to the premises occupied by the plaintiff charges a defect only at said main adjacent to plaintiff’s premises, and is not broad enough to permit the introduction of evidence of a defect at a place 125 feet away and on the opposite side of the street.</p> <p>3. -- — : -: Evidence. Evidence examined and held sufficient to justify the jury in finding that the explosio nwas one of natural gas, and that it was not an explosion of gas escaped from a disconnection in plaintiff’s premises.</p> <p>4. NEGLIGENCE: Pleading: Proof: Demurrer to Evidence. In passing on a demurrer to the evidence the court cannot consider evidence adduced by the plaintiff establishing negligence other than the negligence pleaded if it rules that under the allegations of the petition such evidence was properly excluded.</p> <p>5. CONTRIBUTORY NEGLIGENCE: Matter of Law. Installation of a “booster pump” without permit from the city therefor, held not to be contributory negligence as a matter of law.</p>

<p>1. DRAINAGE DISTRICT: Illegal Contract: Estimated Cost of Location and Construction: Report of Viewers. A contract awarded by the officers of a drainage district on a hid which is not greater than the estimated cost of location and construction of the ditch is not void because the assessment against the- land benefitted, provided by the viewers, through an error in computation is not great enough to meet the .entire expense involved in the proceedings, the contractor being chargeable only with knowledge that his bid does not exceed the estimated cost of location and construction.</p> <p>2. -: Contract Performed: Action for Breach. A contractor who has fully performed his contract and whose performance has been accepted by the drainage district may recover judgment for the unpaid balance of the contract price although the drainage district through an error in the assessment has not sufficient funds to meet the entire expense. Whether such a judgment may be enforced is undecided.</p> <p>3. -: Contract: Subsequent Oral Modification. A contract with a drainage district which the statute requires to be written and recorded may not be modified by a subsequent oral agreement.</p>

<p>Appeal from Bates Circuit Court. — Hon. J. A. Calvird, Judge.</p>

<p>1. COURTS: Nunc Pro Tunc Order: Oral Evidence. An entry nunc pro tunc cannot be based upon oral evidence but can be justified only upon tbe record showing in some way the facts authorizing such nunc pro tunc entry.</p> <p>2. -: -: Rule of Court. Where a rule of court provides that on the sustention of a motion for a new trial, if the party having the right of appeal waives it .during the term and serves notice of such fact on the opposite party the cause shall be returned to the general docket, upon the filing of an amended petition by the party having the right to appeal and an acknowledgment of service thereof by the opposite party, the cause, as a necessary consequence of the rule of court is returned to the general docket, and the court in which it was first tried has power to enter a formal order, nunc pro tunc, returning the cause to the general docket where there are entries and other memoranda filed upon which to base the order.</p> <p>3. —■-: Jurisdiction: Entry of Formal Order Returning Cause to Assignment Division. Under the above facts jurisdiction rests in the Assignment Division by virtue of operation of the rule of court, and the failure to make a formal order returning the cause to the general docket does not defeat the jurisdiction of the Assignment Division.</p> <p>4. MASTER AND SERVANT: Assault: Scope of Employment: Petition. A petition which sets out facts showing that defendant’s servant at the time he assaulted plaintiff was attending to the master’s business, and that he did not turn aside therefrom, but in the course thereof did the injury, states a cause of action.</p> <p>5. JURXOR: Prejudice: Discretion of Trial Court. Evidence held not to indicate an abuse of the trial court’s discretion in refusing to sustain peremptory challenge to a juror whose brother at the time of trial was out on strike against .defendant.</p> <p>6. DAMAGES: Excessive. A verdict in the sum of $4500 actual and '$1000 punitive damages for an assault committed by defendant's servant on plaintiff, an elderly man and resulting in permanent injuries, held not excessive.</p>

<p>1. ' TELEGBAMS: Interstate Commerce: Decisions of Federal Courts. A telegram from a point in Kansas to a point in New York is interstate commerce and is governed by the rules of decision adopted by the Federal Courts.</p> <p>2. -: - — : -: Limitation of Liability: Valid Condition. Under the rules of decision adopted • by the Federal Courts a limitation of liability for damages in the case of an unreported message to the amount paid therefor is a valid condition.</p> <p>3. COMMON CARBIEBS: Receiving Property for Transportation: limitation of Liability. Act of Congress, March 4, 1915 (38 U. S. Stats, at Large, p. 1196, Chap. 176) and Act of August 9, 1916 (39 U. S. Stats, at Large, pp. 441, 442, Chap. 301) making liable for any loss, damage or injury regardless of contract or limitation any common carrier “receiving property for transportation” .does not apply to a telegram.</p>

<p>EQUITY: Rescission of Contract of Sale: Negligent Mistake of Purchaser. Defendant placed certificate of stock in hands of plaintiff with '. request that plaintiff sell the same. Plaintiff wired New York, . correctly describing stock and later received wire from New York announcing the sale thereof. Defendant assigned the certificate in blank and received the money from plaintiff who deducted the commission and tax. Later purchaser in New York refused to pay plaintiff because of his mistake in thinking he had purchased different stock. Held, there was no ground in equity for rescission</p>

<p>1. VARIANCE: Suit on Open Account: Account Stated. Plaintiff . filed petition on an open account. Later, account was settled by payment of $200 in cash and balance in three notes. The answer filed set up a statement of the settlement. Plaitniffi in his reply admitted payment of the $200 and tendered the notes for cancellation. Held, recovery on the open account could be had as the admission by defendant that the sum sued for was correct did not convert the action into one on stated account.</p> <p>2. CAUSE OF ACTION: Settlement: Acceptance of Notes. The acceptance of notes does not operate to destroy the original cause of action but serves merely to suspend the right to sue thereon.</p>

<p>1. BILL OP LADING: Carrier’s Authority to Issue: Rights of Transferee. Since the transfer of a bill of lading, covering an interstate shipment, by endorsement and delivery operates only as a transfer of whatever title the transferrer had, bills of lading issued by carriers, having no authority to issue them for the reason that the goods had not been actually received for transportation, are void in the hands of a subsequent transferee.</p> <p>2. -: Draft Attached: Distinct Obligation. Defendant carrier . issued bill of lading, consigned to shipper’s order at Atlanta with instructions to notify S. at that place. This bill was endorsed to plaintiff by the shipper who drew a draft on S. which it sold to plaintiff. Subsequently the shipper procured from another carrier a bill of lading covering the same car but consigned to shippers order at Providence with instructions to notify L. & W. there. A draft was drawn on L. & W. which was sold to plaintiff and the second bill of lading endorsed to it, the plaintiff having no knowledge that the second bill of lading covered the same car. L. & W. received the car and paid the draft. In an action by the plaintiff on the first bill of lading issued by defendant for failure to ■ deliver the car at Atlanta. Held, that it was proper to deduct the amount paid by L. & W. on the draft, secured by the second bill of lading as L. & W. paid this solely because the car was delivered to them and the plaintiff having received some value for the contents of the car covered by the bill of lading issued by the defendant should credit defendant therewith.</p> <p>3. TRIAL PRACTICE: Stipulation: New Trial, A stipulation as to the amount of judgment to be entered in ease of a finding for the plaintiff is binding only at the first trial, and cannot be taken advantage of on a second trial.</p>

<p>1. NEGLIGENCE: Electricity: Proper Insulation. It is the dirty of one transporting the dangerous instrumentality of electricity to keep its wires in such condition and so insulated as to prevent the escape thereof wherever it can be reasonably anticipated that persons might lawfully come near thereto; and the failure to keep a wire stretching on a pole at a distance of twenty feet in the air properly insulated is negligence.</p> <p>2. MASTER AND SERVANT: Electricity: Duty Owed. A master owes to a servant who is required to work in close proximity to electricity, and who is not skilled in the knowledge of electric wires, the duty of keeping the wires properly insulated.</p> <p>3. NEGLIGENCE: Defective Insulation of Wire: Proximate Cause. Where it may be reasonably anticipated by the defendant that an electric wire will be broken and caused to be thrown to the ground, the negligence of the defendant in failing to have the wire properly insulated is the proximate cause of the death of one killed while picking up wire from the ground.</p> <p>4. -: -: -: Contributory Negligence. Where the intervening act is an act of negligence on the part of the plaintiff there can be no recovery.</p> <p>5. MASTER AND SERVANT: Scope of Employment.' Where the deceased, in addition to being engineer of a coal shovel, was foreman of the coal yard of which he had charge at the time, picked up a wire which had' been broken and had fallen to the ground when he had attempted to move the steam shovel it cannot be said as a matter law that he was not acting within the scope of his employment in picking up the wire, when the wire was in the way of the work.</p> <p>6. CONTRIBUTORY NEGLIGENCE: Jury Question. Whether or not the deceased in picking up the wire was guilty of contributory negligence, under the evidence was a jury question.</p> <p>7. NEGLIGENCE: Issues: Instructions. An instruction which permits a recovery by plaintiff without regard to contributory negligence is erroneous. Instructions should submit the ease in terms so that the jury may understand just what the particular issues are which, if found in plaintiff’s favor, will establish liability.</p> <p>8. PRESUMPTIONS: Instructions. Where there is evidence as to the facts surrounding the death an instruction which indirectly intimates that there is a presumption that deceased possessed the instinct of self-preservation, is improper.</p>

<p>1. EVIDENCE: Delay. Evidence examined and held, to justify a finding that the carrier was guilty of negligent delay in transporting beef cattle to the Chicago market.</p> <p>2. CAERIEE: Delay: Excuse: War with Germany: Preference. The fact that a carrier gave preference to trains carrying war material in the war with Germany is not a valid excuse for delay in shipping cattle to market whereby the shipper, was damaged by shrinkage.</p> <p>3. DELAY: Defence: Preference: Pleading. A defense in an action for damages caused by a carrier’s delay in shipping cattle to market that the carrier gave preference to trains carrying government war material in the war with Germany, if valid, should have been pleaded.</p> <p>4. DAMAGE: Delay: Notice. Under the Federal Statute, as amended in U. S. Stat. at Large, 1913, 1915, vol. 38, Part 1, Public Laws, page 1197, no notice of claim for damage to shipper caused by the carrier’s delay is necessary.</p>

<p>1. CONTEMPT OF COURT: Criminal Proceeding: Imposition of Fine as Punishment. An information filed by a plaintiff who had secured a decree enjoining the defendant from operating a rendering plant in an unsanitary method, alleging a violation of the injunction TielcL to be a proceeding for a criminal contempt, and not a civil one, and hence the imposition of a fine by way of punishment was proper.</p> <p>2. -: Power of Court to Punish. The right of a court of record to punish for criminal contempt is not limited to punishment Cor causes enumerated in section 3881, Revised Statutes 1909, but such courts have power to punish for causes known at common law other than those named in the statute.</p>

<p>1. BILL OF LADING: Interstate Commerce Act: Rules and. Regulations. Under the provision of -the Interstate Commerce Act requiring carrier to file with the Interstate Commerce Commission schedules which shall plainly state all rules or regulations which in any wise change, affect or determine to value of the service rendered to the shipper the defendant carrier’s regulation that no shipper would be permitted to divert or reconsign a shipment and have a new bill of lading issued unless the original bill of lading is surrendered, is part of the contract of shipment.</p> <p>2. -Issuance of New Bill of Lading without Requiring Surrender of Old: Estoppel. Since the defendant carrier was forbidden by regulation filed with the Interstate Commerce Commission to issue a new bill of lading without requiring a surrender of the old, on a diversion or reconsignment of the shipment, its act in so doing was void and it cannot be held liable under a theory of estoppel, though the new bill of lading contains a recital that the old bill has been surrendered.</p>

<p>1. MUNICIPAL CORPORATIONS: Actions: Notice. Laws of 1913, p. 545, providing that “no action shall he maintained against any city ... on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, until notice shall first have been given in writing . . . within■ ninety days of the occurrence’’ does not apply to an accident occurring outside the city limits, and in the latter case no notice need be served.</p> <p>2. —:-: Liabilities for Negligent Acts' Beyond. City Limits. A municipal corporation authorized by its charter to construct a viaduct beyond the city limits is liable for its negligent act in placing .an obstruction in ■ the. highway without a light near by while in the course of the construction of such viaduct even though the injury occurs beyond the city limits.</p> <p>3. -: Charter Powers: Ordinance in Exercise of Power: Presumptions.. Where the charter empowers a municipal corporation to construct a viaduct, and provides that such power shall be exercised by ordinance the duty is on the municipal corporation to. show the lack of such ordinance where its 'employes- have testified that they were working for the municipal corporation at time of placing the obstruction in the street, for the reason that there is a presumption of such legislation by the city as was necessary to justify the action of the employees.</p> <p>4. APPEAL AND ERROR: Constitutional Question: When Raised. The raising of a constitutional question for the first time on motion for a new trial comes too late when the defendant at the time of the filing of plaintiff’s amended petition during the trial had notice that 'the amended petition would involve the constitutional provision it intended to rely upon.</p> <p>5. CONSTITUTIONAL LAW: Municipal Corporation: Construction, of Bridges. Section 53, Article 4, of the State Constitution does not limit the- power of the general assembly to authorize municipal corporations to erect a bridge only across a stream forming a boundary between this and any other State.</p> <p>6. PRESUMPTIONS: Laws of Kansas. The State of Kansas having been carved out of territory that was never a part of the English possessions, there is no presumption that the common law has ever been enforced in that State, and hence the presumption is that the law of Kansas, constitutional and constructive, is the same as that of Missouri.</p> <p>7. PRACTICE: Amended Petition: Continuance. It is not error to refuse to grant a continuance upon the filing of an amended petition when there is no contention of surprise on the part of the defendant</p> <p>8. EVIDENCE: Plat: Harmless Error. Where the whole evidence in the case indicates that the accident occurred in the State of Kansas, the admission of a plat in evidence, objected to as hearsay, is harmless error.</p> <p>9. MUNICIPAL CORPORATIONS: Negligence: Instructions. An instruction which requires a finding that defendant negligently placed a pile of lumber on a viaduct and negligently failed to place a light thereon or near by held proper.</p> <p>10. NEGLIGENCE: Imputed: Instruction. An instruction that the negligence of the driver of the automobile in which plaintiff was riding at time of accident could not be imputed to plaintiff was proper.</p> <p>11. -: Parties Defendant: Motion to Require Joinder. It was not erroneous to refuse defendant’s motion to require the joinder of the driver of the automobile in which plaintiff was riding as section 9801, Revised Statutes, 1909, gives the city the right to file a motion requiring joinder of another as a defendant only when that other is primarily liable and-is in turn liable to the city.</p> <p>12. DAMAGES: Permanent Injury: Excessive. Verdict for $5,000 held not excessive.</p>

<p>1. CONTRACTS: Sale of Corporate Assets: Estoppel. Plaintiff, defendant and S. were owners of all the assets of a corporation, each being charged on the hooks thereof with an amount to show the true interest of each, no stock having ever been issued. The three contracted for the sale of the assets to a new corporation; under the terms of that contract, after certain debts» were paid each of the three was to receive one-third of the remainder from which was to be deducted the indebtedness of each to the corporation so as to equalize the profit of each in proportion to his ownership in the assets of the corporation; Held', that in an action against the defendant on the contract to recover the excess defendant retained, the plaintiff was not estopped from asserting the defendant’s indebtedness to the corporation because in the contract for the sale of the corporate assets the indebtedness was listed as an asset and the assets were warranted by the plaintiff, for the reason that defendant knew that the indebtedness was not regarded as an asset passing by the sale and was not misled.</p> <p>2. —--:--: Enforcibility of Contract with Promoter: Variation. Where a contract for the sale of corporate assets provides for a sale for cash, and the defendants, at time of performance, acquiesce in a variation therefrom for the reason that the contract as originally made was not eriforcible against the other party because he was acting as a promoter for a corporation not formed, and accept, in lieu of cash, stock in the new corporation without notifying plaintiff of the fact, the defendant is deemed to have accepted the stock as an equivalent satisfactory to the cash and will be held to account to plaintiff as if he had received cash.</p>

Louis. —Hon. Victor H. Falkenhamer, Judge. • (1) In the probate • court a petition is sufficient if it discloses the nature of the claim and informs the executor what he is called upon to meet. Rassieur v. Zimmer, 248 Mr. 181; Hinshaw v. Raines, 185 S. W. 1192; Christianson v. McDermott, Estate, 123 Mo. App. 448. (2) The law does not permit a litigant to assume inconsistent positions in court. Bensieck v. Cook, 110 Mo. 182.

<p>1. INSURANCE: Fire Insurance: Appraisals: Appraisal Not an Arbitration and Award. The submission to appraisers under an agreement for submission to appraisers, and the instrument signed by one appraiser and the umpire to appraise and estimate by items and in detail the sound value of, and the loss and damage to, the property destroyed or damaged by fire, termed an “award,” did not constitute an arbitration and award either under the statutes or at common law, and if valid and binding, it served merely to fix the amount of the loss and damage.</p> <p>2. -: —-: -■: Fixing Amount of Loss: Must Conform to Agreement. Though a fire insurance policy contained a provision purporting to make it mandatory upon the insured to submit the matter to appraisers in the event of disagreement as to the amount of loss, this provision was not binding on insured under section 868, Revised Statutes 1909, and insurer having pleaded that such agreement was made, and that the award was made in compliance therewith, the burden of proof rested upon insurer to establish that the appraisement pleaded was made in substantial compliance with the terms of the agreement, in order for insurer to avail itself of such appraisement as fixing the loss and damage.</p> <p>3. - — : -: -: -: Appraisement of Loss Not Made According to Agreement: Void. Where an agreement for submission to appraisement provided that the appraisers should appraise and estimate by items and in detail the sound value of, and the loss and damage to, the property destroyed or damaged by the fire, as specified in the agreement and the 'policy, stating the sound value and loss and damage separately, the signing of a so-called “award” by one appraiser and the umpire is not in any sense an appraisement by items and in detail of the property specified, or property destroyed or damaged, contained in the basement of insured’s building, such being shown merely by stating in the aggregate the total sound value of all the property in the basement and the aggregate loss and damage to the various classes of property specified in the agreement and policy, and Jield, that as an appraisement under the agreement for submission to appraisers, it was clearly void.</p> <p>4. -: —--—: -: Appraisement Agreement Pleaded: Evidence: Failure to Make Prima-facie Showing. Where insurer pleaded an agreement by submission to appraisers, and that an appraisement or award had been made in accordance with the terms thereof, it devolved 'upon the insurer to establish, prima facie, an appraisement made in compliance with the agreement between the parties; such prima-facie showing, if any, being subject to be rebutted by the insured, though insured could not have attacked the appraisement for fraud without having pleaded it, and held that insurer made no prima-facie showing that the appraisement pleaded and offered in evidence was made in accordance with the agreement between the parties.</p>

Appeal form the Circuí Court of the City of St. Louis. —Hon. Rhodes E. Gave, Judge (1) A sale is a contract or agreement for the transfer of the absolute property in personalty from one person to another for a money price. P'eyck© Bros. v. Ahrens, 98 Mo. App. 456, 459'. (2) A contract is ordinarily formed by an offer and acceptance. 6 R. C. L. 600.

<p>1. HUSBAND AND WIFE: Contracts: Contract of Separation and Settlement of Property Eights Valid: Eeconciliation Annuls Contract. There may he a valid contract of separation and settlement of property rights between husband and wife, but a reconciliation would avoid and annul such contract.</p> <p>2. -: —-t—: Contract of Settlement Without Present Intention to Separate Void: Public Policy. While agreements for separation and for settlement of property interest between a discordant husband and wife, when fair and reasonable, will be upheld by the courts, if made in prospect of immediate separation; such agreements between parties living together amicably and without a present intention to separate are against public policy and void, since they have a tendency to promote separation and divorce. .</p> <p>3. - — : —-: Parties Living Short Time in Same House: Marital Eelations Not Eesumed: Contract of Separation and Settlement Valid. An agreement between husband and wife under .which the wife received and accepted the sum of $7oo in cash and other good and valuable considerations, in lieu of all claims for alimony and maintainance which had accrued or which might accrue in the future was not rendered invalid because the parties continued to occupy the same house for a few days after the signing of the agreement, inasmuch as such occupancy was with no intention of resuming or continuing marital relations but was occasioned by the immediate and unavoidable circumstances attendant at the sale of the property and procuring of a new residence for each of them.</p> <p>4. DIVOECE: Alimony: Separation Settlement: Consideration Paid: Tender. Where husband and wife enter into a contract of settlement and separation, in which all money and property rights and obligations are adjusted in consideration of the husband paying— her a certain sum of money, she cannot then bring an action for divorce and alimony and seelc to repudiate the contract without tendering back the sum received by her under the contract.</p>

Louis.— lion. Wilson A. Taylor, Judge. (1) The contract sued on in this case is a valid contract and the evidence introduced hy appellant conclusively established that he duly performed his part of said contract. (2) Appellant was entitled to go to the jury upon the second count of his petition and the court erred in giving a peremptory instruction for the respondent.

Louis.— lion. Rhodes E. Gave, Judge. (1) Under the decisions of the Missouri courts (prior to Act of April 9, 1917), where a corporation check was drawn by one of its agents to his own use anyone accepting such a check was presumed to .do so with knowledge that such agent was acting beyond bis authority and the burden of proof was upon anyone accepting such check to show the agent’s authority, if any he had. This was a mere rule of evidence and not of substantive right.

Louis.— Hon. Rhodes E. Gave, Judge. (1) The facts in the present case are such that the rule that when an officer of a corporation pays his individual debt with the check of the corporation it bears… Held: as security for the payment of this check of Tindle, certain property of Tindle, which defendant surrendered upon the payment to it of the draft. Wherefore ’ defendant claims that plaintiffs are estopped to claim that the draft was fraudulently issued.

Louis.— , Eon. Thomas C. Eennings., Judge. (1) The garnishment proceeding under the statute (Section 2413, R. S. 1900, et seq.) is legal and not equitable in its nature, and the court has no jurisdiction to determine any matter or any right of the parties involved in the proceeding other than the ownership of the fund garnished. Chapman v. Taney, 172 Mo.. App. 132, 145-146, and cases cited; Lackland v. Garesche, 56 Mo. 267, and cases cited.

Louis.— IIon. John W. Calhoun, Judge. (1) The respondent was not entitled to go to the jury, on the theory of total loss, when his own testimony showed that the automobile was not so damaged by the collision as to lose its specific character and identity as an automobile; mere destruction or damage to some of its parts is not sufficient to show a total loss. City of Aurora v. Fireman’s Fund Ins. Co., 180 Mo. App. 263, 271; Jones v. Orient Ins. Co., 184 Mo.

Louis— Hon. Benjamin J. Klene, Judge. (1) This being' an action upon a contract entered into by appellant, a corporation organized by a pro forma decree of the circuit court of the city of St. Louis', under article X, chapter 33, Revised Statutes Mo. 1909, wherein appellant engaged the services of one of the defendants to give a private sparring exhibition before the members of plaintiff, it having paid defendants the contract price for such performance, and having in all…

Edgar B.. Woolfolh, Judge. In an action upon an employer’s liability policy to recover from the insurer the expenses and amount paid-by the employer in satisfaction of a judgment recovered against the employer by an injured employee; the judgment in the action instituted by the employee against the employer is not only admissible in the action of the employer against the insurer, but the employer is estopped by said judgment from showing in the action ag'ainst the insurer…

<p>Appeal from the Circuit Court of Lincoln County. — Hon. Edgar B. Woolf oik, Judge.</p> <p>(1) The deed is void for uncertainty in its description. King v. Wood, 7 Mo. 389; Bell v. Dawson, 32 Mo. 79; Alexander v. Hickman, 34 Mo. 496; City of Jefferson v. Whipple, 71 Mo. 519; Fox v. Courtney, 111 Mo. 147; State ex rel. v. Railway, 114 Mo. 1; Miudd v. Dillon, 166 Mo. 110; State ex rel. v. Burrough, Í74 Mo. 700; Martin v. Ketchen, 196 Mo. 477; McCommack v. Parsons, 196 Mo. 91; Blumenthal v. Bluxnenthal, 251 Mo. 693; Schroeder y. Turpin, 253 Mo. 258; Cement & M. Co. v. Kreis, 261 Mo. 160. (2) Where the description in a deed is ambiguous and uncertain, and this appears upon the face of the deed, it cannot be cured by evidence aliunde. Campbell v. Johnson, 44 Mo. 247; Carter v. Holman, 60 Mo. 498; Mudd v. Dillon, 160 Mo. 110; Johnson v. Feoht, 185 Mo. 335'. (3) A subsequent purchaser is not charged with constructive notice by the record of a deed, the descriptioix in which is' so indefinite and uncertain that it would not enable the purchaser to identify the land sought to be conveyed. G-atewood v. House, 65 Mo. 663!; Cass v. Oldham, 75 Mo. 50; F'ord v. Unity Church Society, 120 Mo. 498; Land and Lumber Co. v. Franks, 156 Mo. 673, (4) The defendant Brooks would undoubtedly be an innocent purchaser as to all of the road located in the valley of Wolf Pen hollow, all of which is in section 30, because the deed describes the roact as being in section 31. There was no evidence that either before or after the purchase by Mir. Brooks he knew of the existence of any part of the road, and the deed, describing the strip of land of twenty feet as being; in section 31, would not even be constructive notice to. him of the road located in section 30. W|ebb on Record Titles, secs. 147, 180; Gatewood v. House, 65 Mo. 663; Cass v. Oldham, 75 Mo. 50; Ford v. Unity Church Society, 120 Mo. 498; Land Co. v. Franke, 156 Mo. 673. (5) (a) Adverse possession must have been “hostile,” i. e., “adverse,” not in privity with the true owner. Plaintiff could not claim under his deed and under adverse possession. Pease v. Lawson, 33 Mo. 35. (b) Adverse possession must have been ‘ ‘ exclusive, ’ ’ not, as shown in the instant case, traveled by others. This would be a “mixed possession.” Burk v. Adams, 80 Mo. '515; Swope v. Hurd 185 Mo. 325; Bailey v. Carleton, 12 N. H. 9. (c) Adverse possession must have been by ‘ ‘ actual occupancy. ’ ’ This was not shown. Claimant passed over the road sometimes every week, and sometimes twice per week. He could have occupied it by a fence, which, in'the absence of actual use, would have been actual occupancy. Gaines v. Saunders, 87 Mo. 557; Hunter v. Wethington, 205 Mo. 293. (d) Adverse possession must have been “actual open, visible and notorious.” In the absence of a fence or payment of taxes, there could have been nothing but wagon tracks and occasional neighbors passing- through the, woods. This would' suffice. Le Graw v. Taylor, 37 Mo. 310; Fugate v. Pierce, 49 Mo. 447. (e) Adverse ossepssion must have been “unbroken.” In the absence of a fence, the occasional use in driving through the twenty-foot strip was broken when not in use. Hunnewell v. Burchett, 152 Mo. 611; Baber v. Henderson, 156 Mo. 566. (6) While “color of title” of a defined body of land may he created by acts in pais, without writing-, where as here a written instrument is relied on as giving “color of title,” and the description does not identify the land with the degree of certainty essential to ascertain the boundaries and identity thereof, the deed lacks the first essential of “color of title.” Fugate v. Pierce, 49 Mo. 441; Cooper v. Ord, 60 Mo. 431; Pharis v. Bayliss, 122 Mo. 124; Slieer v. Owens, 241 Mo. 319; Realty Co, v. Realty Co., 245 Mo. 419; Hanna v. Pulmer, 194 111. 41, 56 L. R. A. 93 ; Allmendinger v. McHic, 189 111. 308, 59 N. E. 517; Brennan v. Henry, 142 Ala. 698, 110 Am. St. Rep. 55 ; Napier v. Little, 137 Ga. 242, 38 L. R. A. (N. S.) 91; Tate-v. Southard, 10' N. Car. 119, 14 Am. Dec. 578; Enfield v. Day, 7 N. H. 437, 28 Am. Dec. 360; Sowles v. Minot, 82 Yt. 344, 73 Atl. 1025; Humphries v. Huffman, 33 Oh. St. 395; Wyman v. Walker, 58 So. 403; Chilton v. White, 78 & E. 1048; Southern I. & S. Co. v. Stowers, 60 So.' 677. (7) Such, possession, under claim of right, as' would entitle him to recover for such possession, must be distinct from others and exclusive. The testimony showed that others traveled the several roads through the woods. Brown v. .Railway, 101 Mo. 484; 'Elevator Co. v. Suburban Ry. Co., 135 Mo. 353'. (8) Plaintiff would not be entitled to a right-of-way by prescription, because the user, in order to gain such right, must confiné his way to a definite and specified line or way. Through section 31, there were three roads covering a space of 150 feet, neither shown to be on the twenty-foot strip. He cannot change the location, or deviate from the way, without the consent of the servient estate: 9 Ruling Case Law, section 35, page 775; Gentleman v. Soule, 32 111. 271, 83 Am. Dec. 264; Madison Township v. Gallagher, 150 111. 105, 42 N. E, 316; Shellhouse v. State, 110 Ind. 509,11 N. E. 484; Schroeder v. Onekama, 95 Mich. 25, 54 N. W. 642; Nelson v. Sneed, 76 Neb. 201, 107 N. W. 255; Lever v. People, 33 Col. 493, 81 P'ac. 270; South Branch R. Co. v. Parker, 41 N. J. E. 489, 5 Atl. 641; Montgomery v. Somers, 50 Ore. 259, 90 Pac. 674; Olsen v. People, 56 Cal. 190', 138 Pao. 21; Sprague v. Stead, 56 Col. 538, 130 Pac. 544; Smith v. Nofsinger, 86 Neb. 834, 126 N. W. 659. (9) A road cannot be established by prescription or limitation while the land ‘over which the road runs is unimproved and unoccupied, over which people may travel at their pleasure. Stacey v. Miller, 14 Mo. 478; Liever v. People, 33 Col. 493, 81 Pac. 270; Smith v. Smith, 34 Kans. 293, 8 Pao. 385; Shaffer v. Stull, 32. Neb. 94, 48 N. W. 882; Graham v. Hartnett, 10 Neb. 517, 7 N. W> 280; Ottawa v. Yentzer, 160 111. 509, 43 N. E. 601; Friel v. People, 35 P'ac. 676'. (10) The fact that the plaintiff and others traveled through the wooded and uncultivated land occasionally, and that there were wagon tracks covering the space of one hundred and fifty feet in width on the, southern part of said track, and that they converged into the hollow in one track, crossing the branch at different places, would not be sufficient notice of possession of plaintiff to charge defend ant with, plaintiff’s claimed prescriptive right-of-way. O ’Connell v. Chicago Ter. Ry. Co., 56' N. E. 357; Brushy Mound v. McClintock, 150 111. 129, 36 N. E. 976-; Town of Bethel v. Prewitt, 215 111. 162, 74 N. E. 114; City of Chicago v. Galt, 224 111. 421, 79 N. E. 703 ; Schmidt v. Brown, 226 111. 590', 80 N. E. 1073; Watson v. Board of County Commrs., 80 Pac. 201. (11) Mr. Brooks is not liable for the trespass, if such there was, of Britt’s employees. Fink v. Mo. Furnace Co., 82 Mo. 276; Knowlton v. Hoit, 67 N. H. 155, 30 Atl. 346; East St. Louis v. Giblin, 3 HI. App. 219; Carter v. Berlin Mills C'o., 58 N. II. 52, 42 Am. Rep. 572; Manchester v. Warren, 67 N. PI. 482, 32 Atl. 763; Moore v. Sanborn, 2 Mich. 519, 59 Am. Dec. 209; Easter v. Hall, 12 Wash. 160, 40 Pac. 728; Pierrepont v. Loveless, 72 N. Y. 211; Wright v. Holbrook, 52 N. H. 113', 13 Am. Rep. 12.</p> <p>(1) This canse having been transferred to the circuit court from the justice’s court on the statutory affidavit, denying plaintiff’s title to the .road, it only became necessary for plaintiff to show possession of the road alleged to have been trespassed upon, to recover damages, if any. (2) Witnesses who lived in the vicinity of the road, knew the location of the road, and were able to describe if, and knew that respondent was in the possession of the said road and using it for the only purpose for which he had purchased the same, namely, to haul his produce to Wright City, Mo., and that Wright City was his place of market and banking business, and that respondent claimed the road as his own, occupied it for the only purpose for which he had acquired it, and used it continuously, openly, visibly, notoriously and adversely as his road for egress and ingress from and to his farm, and from and to Wright City, to sell his nroduce and to buy his commodities, and do his banking business. (3) A private road may be acquired by the passing of a valuable consideration to the party owning the land from the party desiring the road, and the fact that a consideration passed may be shown by parol evidence, and the making and delivery of a deed is not necessary to show title to the easement. Powers v. Dean, 112 Mo. App. 289; Graham v. Olson, 116 Mo. App. 278 to 280'; Rice v. Wade, 131 Mo. App. 343; Grandstiff v. Bland, 166 Mo. App. 41. (4) Title to a private road may be gained by prescription, nser for the statutory'period of ten years, raising the presumption of a grant at the beginning of such use. Graham v. Olson, 116 Mo. App. 278. to 280'; House v. Montgomery, 19 Mo. App. 170; Auitenreith v. Railroad, 36 Mo. App. 254; Power v. Dean, 112< Mo. App. 289; Gerstner v. P'ayne, 160' Mo. App. 289. (5') Long use of a private road, even though it is not shown how the user began, whether by license or by grant, will raise a presumption of right to the road and entitle a person claiming such road to damages for an injury to same. Autenraith v. Railroad, 36 Mo. App. 254. (6) Parol evidence is admissible to show use and conditions and explain the meaning of words in a description of a private road. Geisman v. Trish, 163' Mo. App. 308. (7) Lon© use of a private road raises the presumption of rightful use and the burden shifts to the defendant to explain how the user began, and in the absence of explanation the presumption of rightful user becomes conclusive. Gerstner v. Payne, 160' Mo. App. 289. (8) Appellant is not an innocent purchaser for value without notice because at the time of his purchase of the land the road was cut out and in actual use and occupancy by respondent iii both sections 30 and 31, the land purchased by Brooks lying at both section 30 and 31 and a recorded deed showing that respondent owned a roadway twenty feet wide, “beginning on Big Creek (which is in section 30) at the mouth of Wolf Pen Hollow,” and Big Creek not touching any land in section 31, at any point, would Lie, at least, sufficient notice to put appellant on his inquiry, and bar his claim as to being an innocent purchaser for value without notice. (9) The nature of the work and the calling and competency of the servant must be shown before the court can declare one an independent contractor, and the mere fact that the work engaged in was done by the job or piece does not malm one an independent contractor. Cooley on Torts, (2 Ed.), pages 643 to 647; 26 Cyc., page 1543, (note); O’Neill v. Blase, 94 M'o. App. 656<; Mullich v. Brocker, 119 Mo. App. 332; Knicely v. Railroad, 17 L. R. A. (N. S.) 370 ; Cochran v. Rice, Ann. Cas. 1913B 570. (10) Where the doing of an act casts a duty as to the method of performance, even though the person doing the work is an independent contractor, the principal is not relieved of his liability for a breach of the duty by the independent contractor. 38 Cyc.,. page 480; 26 Cyc., page 1547; Gerhardt v. Bank, 38 Mo. 60; Williamson v. Fisher, 50' Mo. 200; Crenshaw v. Ullman, 113 Mo. 641; Walters v. Hamilton, 75 Mo. App. 244 ■ Benjamin v. Railroad, 133' Mo. 285 to 286.</p>

<p>1. NEGLIGENCE: Fellow Servants: Street Railways. Plaintiff’s husband was fatally injured while cleaning the interior of a Street Railway power house boiler. The boiler, within which the deceased was working at the time "he was . injured, was connacted with other boilers, then in operation,, and another employee of de- - fendant failed to close a shut-off valve an,d thereby blow-off steam was allowed to enter it, causing his injuries. Held, that a cause of action created by section 5434, Revised Statutes 1909, survives under section 5426 and that defendant was engaged ip the work of operating a railroad within the meaning of section 5434, therefore a recovery was .not barred upon the grounds that the deceased's death was caused by the negligence of a fellow servant.</p> <p>2. -: Instructions: Defining Negligence. Where the facts that the jury was required to find shows that the defendant was guilty of negligence as a piatter pf law, an instruction is not erroneous, because it fails to define the word, ‘“negligently,” which is used therein.</p> <p>3. -■ — : -: Surplusage: Technical Words. The use of technical words in an instruction, such as “non-delegable,” is improper, but if an instruction, containing such words, would be good by requiring the jury to find all the necessary facts, they are surplusage, and not misleading to a jury.</p> <p>4. -: Damages: Instructions: Pecuniary Loss. An instruction, in an action for damages, by a widow for tbe wrongful death of her husband which fails to limit her recovery to her “necessary” pecuniary loss is not erroneous where it confines the pecuniary damages to those directly resulting to plaintiff, nor is it error to instruct the jury, in such a case, that they may “apply to such of these elements as you find from the evidence to exist, if any, that common knowledge and experience in life which men generally possess.”</p>

<p>1. APPEAL AND ERROR: Review of Facts. Where the verdict was for plaintiff, the appellate court will consider the facts in the light most favorable to plaintiff.</p> <p>2. INSURANCE: Evidence Warranting Finding that Insured Did Not Die Prom Violating Law. In an action on a certificate issued by a fraternal insurer, evidence held to warrant finding that the member who was killed by the discharge of a shotgun, the barrel of which he was using to open a gate after he had broken off the stock in attempting to enter a neighbor’s house in search of his wife, who had left him when he begun to abuse her, did not meet his death as a result of his previous uñlawful acts, but that the accident occurred after he had calmed down and was no longer committing any unlawful act.</p> <p>8. -: Death Must be Proximate Result of Violation of Law to Avoid Certificate. In order .to relieve a fraternal insurer under a ' provision that the certificate should be void if the member should meet his death as a direct result of drinking intoxicants or in consequence of a'violation or attempted violation of the law, it must appear that the intoxication or law violation was the direct and proximate cause of the death; hence, where a member had ceased to exhibit a gun in an unlawful and angry, threatening manner, the fact that he was killed by accidental discharge of the gun will not bar recovery. -</p> <p>4. ’-: Gross Negligence from Drinking Does Not Avoid Recovery on Fraternal Certificate. That a member of a fraternal insurer was grossly negligent in using shotgun, and as a result it was discharged and killed him, will not preclude recovery under provision of the certificate declaring it should be void if the member should meet his death as the direct result of intoxication, even though the member’s negligence might have been largely the re-suit of drinking intoxicants.</p> <p>5. APPEAL AND ERROR: Invited Error in Instruction. Where court gives an instruction too general in its terms, but also gives a requested instruction for defendant just as general, defendant cannot complain.</p>

<p>1. CHATTEL MORTGAGES: Record of Mortgage in Fictitious Name Not Notice. A mortgage of personalty made by the owner in a fictitious name and placed on record is not constructive notice to one dealing with the owner in his true name.</p> <p>2. MORTGAGES: Mortgage or Conveyace in Fictitious Name Valid. If real estate is purchased by a person under a fictitious name, the recorded deed being in such name, a mortgage or other conveyance in such name is good.</p> <p>3. CHATTEL MORTGAGES: Record of Mortgage in False Name as Constructive Notice. Where horses and harnesses were sold to a person under a false name, and mortgages taken back by the sellers in the same name, such a mortgage on record is constructive . notice to a person dealing with the buyer under such name.</p> <p>4. SALES: Purchase Under False Name Passes no Title Even Against Innocent Purchaser. If a purchaser of chattels misrepresents his identity passing under a false name, and induces a pretended sale to himself under the belief that such sale is to another, no title passes to him from the sellers which he can pass on to another, even an innocent purchaser, the sellers not suffering the loss on any ground that they conferred on the fraudulent buyer the apparent right of ownership.</p> <p>5. -: No Waiver of Right to Reclaim from Fraudulent Buyer. Sellers of personalty to a buyer who passed under a false name and gave back mortgages as security in such name held, not to have waived their right to reclaim the property from transferees of the fraudulent buyer, though, after they asserted their right and obtained possession of the property, they foreclosed their mortgage, believing it to be valid; waiver implying knowledge and intention, neither of which was present.</p>

<p>1. ANIMALS: Owner of Male Animal Liable for Injury to Female Where Negligent. The owner of a male animal is liable for injury done to a female in and by the act of service, including injury by reason of a false or wrong entry, where such injury is attributable to any negligence or lack .of skill of such owner.</p> <p>2. -: Evidence Establishing Prima-facie Negligence by Owner of Stallion in Serving Mare. In action against owner of stallion for death of mare from entry of rectum, proof that owner permitted stallion to act at will while 'mare was being held, and' took ■ no precaution in aiding or guiding the stallion in the act of serving the mare, held to establish prima-faeie case of negligence or want of skill of owner in handling stallion.</p> <p>3. --- — : Evidence Sufficient to Show Negligence in Handling of Stallion Serving Mare. In action against owner of stallion for death of mare from injuries sustained while being served by stallion, evidence that groom handling stallion permitted the rectum to be twice entered held sufficient to justify finding of negligence in the handling of the stallion.</p> <p>4. -: That Owner of Mare Had Been Negligent on Prior Occasions no Defense in Action Against Owner of Stallion for Negligence. In a'ction against owner of stallion for death of mare from injuries sustained while being served by stallion, on ground that owner in handling stallion was negligent, it was no defense that plaintiff, owner of mare, had on prior occasions, been guilty of the same negligence while in owner’s employ, and while subject to his direction and control.</p> <p>5. -■ — : Owner of Mare not Contributorily Negligent When it Was Negligently Served by Stallion. That owner of mare was present and holding mare, and observing without protest manner in which mare was being served by stallion, did not make owner contributorily negligent, so as to preclude him from recovering for death of mare as result of negligence or want of skill on part of groom handling stallion, unless act of such groom was so obviously dangerous that no prudent man would stand mute.</p> <p>6. -: No Assumption of Risk by Owner of Mare in Permitting Her to be Served by Stallion. Owner of mare, in permitting mare to be served by stallion, did not assume the risk of negligence of owner of stallion.</p> <p>7. NEGLIGENCE: Risk of Negligent Act not Assumed. The law of assumed risks in this State has narrow limits, and applies generally, if not always, to those dangers attendant on the act or method, when done in a manner free from negligence.</p> <p>8. ANIMALS: Evidence of How Stallion Was Handled by Another Admissible to Negative Negligence of Owner in Action for Death of Mare. In action for death of mare from injuries sustained while being served by stallion negligently handled by defendant owner, evidence that plaintiff owner of mare had managed the stallion in the same manner that defendant had managed it held admissible to negative defendant’s negligence.</p> <p>9. ANIMALS: Evidence of General Usages Admissible on Question of Negligence in Handling Stallion Serving Mare. In action for death of mare from injuries sustained while being served by stallion claimed to have been negligently handled by defendant owner, evidence of general usages and customs was admissible on issue of whether defendant did what a reasonably prudent man would have done under the same circumstances; but evidence of what particular persons did on particular occasions, or even generally, was not admissible on direct examination.</p>

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

<p>1. TRIAL: Credibility of Evidence a Question for Jury. The evidence not being contradictory of the physical facts or inherently incredible, its credibility is for the jury.</p> <p>2. APPEAL AND ERROR: Defendant Not Prejudiced by Instruction Not in Harmony With its Theory. Where plaintiff tried the case on the theory that deceased while delirious left his room in hospital, went into a hallway, opened a door leading to a fire escape, and fell down the steps to the ground, defendant hospital, which claimed that deceased met his death by throwing himself from the window of his room, was not injured by refusal of instruction that the evidence was insufficient to sustain the claim that deceased met his death by falling from, or throwing himself from, the window of his room.</p> <p>3. HOSPITALS: In Action for Injuries to Patient Due to Delirious Condition, Defendant’s Knowledge Thereof Must be Alleged. In action for the death of a patient on the third floor of defendant’s hospital, who, while in a delirious condition and while attempting to escape from the hospital, fell to the ground and was killed, averment that defendant had previous knowledge of deceased’s delirious condition, and inability to know of dangers and take care of himself was necessary to a good petition.</p> <p>4. PLEADING: Defects in Petition Were Cured by Verdict. In action for death of a patient on the third floor of defendant’s hospital, who, while in a delirious condition and while attempting to escape from the hospital, fell to the ground and was killed, petition held not so defective, as regards failure to allege that defendant had knowledge of deceased’s delirious condition, as to be insufficient ■ after verdict.</p> <p>5. APPEAL AND ERROR: Defective Petition for Death of Hospital Patient Held Not to Prejudice Defendant. In action for death of a patient on the third floor of defendant’s hospital, who, while in a delirious condition and while attempting to escape from the hospital, fell to the ground and was killed, that petition failed to specifically allege that defendant had knowledge of deceased’s delirious condition, held not to have prejudiced defendant in view of evidence and instructions.</p> <p>6. HOSPITALS: Question of Negligence in Failing to ¡Watch Delirious Patient was for Jury. In action for death of a patient on the third floor of defendant’s hospital, who, while in a delirious condition and while attempting to escape from the hospital, fell to the ground and was killed, held that defendant’s negligence was a question for the jury.</p> <p>7. -: Must Use Reasonable Care to Safeguard Against Dangers Due to Mental Incapacity. Defendant hospital was required to use reasonable care and diligence, not only in treating patients, but also in safeguarding them from dangers due to mental incapacity.</p> <p>8. -: Degree of Care of Patients Required. The degree of care and diligence required of a hospital in caring for a patient is measured both by the mental incapacity of the patient, and the danger which the surroundings indicate may befall him in view of any particular mentdl traits exhibited by the patient.</p> <p>9. -: Not Required to Take Measures to Avert that Which is Unlikely to Happen. While a private hospital owes to its patients such reasonable care and attention as their own mental or physical conditions reasonably require, this requirement is limited by the unbending rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen.</p> <p>10. DEATH: Widow’s Re-marriage Does Not Bar Action Nor Reduce Recovery for Death of Husband. The widow’s re-marriage will not preclude her from maintaining action for the death of first husband, nor affect the amount of her recovery.</p>

<p>1. CONTRACTS: Instrument Must be Interpreted in the Light of Surrounding Circumstances. A written instrument must be interpreted in the light of the circumstances under which it was given and to accomplish its purpose.</p> <p>2. LIMITATION OF ACTIONS: Indemnifier’s Liability Does Not Arise Until Actual Payment by Person to be Indemnified. Where the undertaking is to protect one from liability, the cause of action accrues when the liability becomes fixed, but when it is one to indemnify for loss, then the cause of action does not accrue until actual payment.</p> <p>3. INDEMNITY: Obligation Securing One Who Procured Bail Held “Obligation Against Liability” and Not “Indemnity for Loss.” An instrument acknowledging the signers to be indebted on condition that others abide the condition of their appearance bond, which was given to one who procured the bond to protect him against liability, not of indemnity for loss, and the right of action thereon accrues when his liability becomes fixed.</p> <p>4. LIMITATION OP ACTIONS: Liability of One Who Secured Bail Sureties Accrued Not Earlier Than Judgment Against Sureties on Appeal. The obligation of one who procured a bail bond for others to the sureties on the bond, under his agreement to indemnify them, becomes fixed, not when the trial court entered judgment on scire facias from which, an appeal was taken, not only after the judgment on appeal, and the right of action on an instrument to protect him against liability accrues only at that time.</p>

<p>1. INSURANCE: Insured, a Soldier, Dying in Hospital in this Country of Pneumonia, Engaged in “Military Service’- Within Terms of Policy. Where a life insurance policy exempted insurer from liability “if the insured shall die or become disabled while engaged in naval or military service in time of war or in consequence of such service,” except for an amount equal to the net reserve on the policy, and it appeared that insured enlisted in the army in the war with Germany and her allies, and that he died in a hospital in this country of pneumonia, deceased was engaged in the military service, and died when in such service within meaning of the policy.</p> <p>2. -: Exemption from Liability if Insured Dies while Engaged in Naval or Military Service, Valid. A provision in a life insurance policy exempting insurer from liability in case insured dies while engaged in naval or military service is valid.</p> <p>3. —■—: Provisions Excluding Hazards Incident to Military Service in Time of War or Exacting Higher Premiums Not Void as Against Public Policy. Provisions in life insurance contract excluding therefrom the hazards incident to military service or exacting a higher rate of premium for such'risks are not void as against public policy.</p> <p>4. -: Increased Premiums for Hazards Incident to Military Service in Time of War Not Exorbitant and Unreasonable. A life insurance policy providing for increased rates for hazards incident to military service in time of war will not be held exorbitant or unreasonable, since, as insurer may entirely decline to carry such risks, it may fix its own terms for so doing in the absence of law or regulations to the contrary.</p> <p>5. -: Acceptance of Premiums Not Waiver of Prohibition Against Engaging in Military Service Where Fact of Such Service is Concealed. Where a life insurance policy exempted insurer except for the net reserve if insured should die, or become disabled, by engaging in military service in time of war or in consequence of such service unless an increased rate was paid, acceptance by insurer of premiums at the original rate did not constitute a waiver of the conditions when insured concealed the fact that he had entered the army.</p>

<p>1. BANKS AND BANKING: Deposit Payable to Either of Two Persons Belongs to Survivor. Under the direct provisions of Laws 1915, p. 190, sec. 168, where a person deposits money belonging* to him in a.bank, taking a certificate of deposit payable to himself or another, and subsequently dies, the fund belongs to the other person named in the certificate.</p> <p>2. EXECUTORS AND ADMINISTRATORS: Title to Personalty Vests in Local 'Administrator. Title to personalty vests in the domestic administrator, where the owner was a non-resident at the time of his death. . *</p> <p>3. BANKS AND BANKING: Husband Cannot Withdraw Sum Belonging to ¡Wife After Her Death. Under Revised Statutes 1909, section 8309, providing that husband cannot reduce his wife’? personalty to possession without her express written consent, a’ husband cannot withdraw a bank deposit belonging to his wife after her death, although presenting a certificate of deposit duly indorsed by her.</p> <p>4. TRUSTS: Bank Deposit by Husband in Wife’s Name Not a Resulting Trust. The presumption that a husband’s payment to his wife is a gift, instead of a trust, with evidence that a husband deposited money in the wife’s name, taking certificates of deposit, which were delivered to her, that the wife was in poor health, that there was no necessity for placing the money in her name, so far as the husband’s creditors were concerned, etc., field to establish that the money belonged to the wife, with no resulting trust for the husband’s benefit.</p>

<p>1. COMPROMISE AND SETTLEMENT: Accord and Satisfaction: Agreement of Holder of Tax Bill, Subsequently Withdrawn Before Payment, to Accept Less Than was Due, Neither Settlement Nor Satisfaction. Where the holder of a .tax bill offered to accept less than was due — that is, the face of the bill exclusive of interest— but withdrew the offer before any payment was made thereon or even proper tender of payment, if the transaction was a compromise, there was no sufficient settlement, if an accord, no sufficient satisfaction, to make the new agreement a merger of the old demand and to bar all action thereon.</p> <p>2. ACCORD AND SATISFACTION: Definitions. An “accord” is an agreement whereby one party undertakes to give or perform and the other to accept in satisfaction of a claim something other or different from what he is or considers himself entitled to; a “satisfaction” being the execution or carrying into effect of • such agreement.</p>

<p>1. TRIAL: Failure to Instruct on Constructive Notice of Which There was no Evidence Not Error. In action for value of mules struck by a railroad motor-car, the failure of an instruction to hypothesize the trainmen’s constructive knowledge that the mules were on the track and running towards a trestle was not error, where there was no evidence as to where the mules were, or “that they were where they could nave seen before they were seen on the trestle.</p> <p>2. EVIDENCE: Statement that Railroad’s Servants Could Have Seen Mules Properly Stricken as Conclusion Where no Basis Is Shown. In an action for the value of mules struck by a railway motor car, where the statements of absent witnesses were admitted as representing what they would testify if present, a statement therein that defendant’s agents and servants could have seen the mules before they ran on a trestle was properly stricken as a conclusion, when not accompanied by facts showing that the mules were ever at a place where they could have been seen before they went on the trestle.</p>

<p>1. APPEAL AND ERROR: On Review of Directed Verdict for Defendant, Only Plaintiff’s Evidence Can be Considered. On appeal from a judgment after directed verdict for defendant, the appellate court can look only to the plaintiffs’ evidence to see whether it was sufficient to justify a judgment for them.</p> <p>2. FIRES: Evidence Sufficient t'o Show Setting of Fire Willful. Evidence that defendant, between whom and plaintiff there was ill will, set a fire on his land close to plaintiff’s woodland when a strong wind was blowing towards the woods, held sufficient to warrant the jury in finding that setting the fire was willful so as to entitled plaintiffs to double damages under Revised Statutes 1909, section 5433, though defendant claimed he started the fire to clear his land before the wind arose.</p> <p>3. 1-: Intention in Setting Fire is Question for Jury. Whether, the. act of defendant in starting a fire close to plaintiff’s land was willful is a question of fact to be determined by the jury from the surrounding facts and circumstances, notwithstanding defendant’s denial' of willful intent.</p> <p>4. -: Evidence of 111 Will Between Parties is Admissible to Show Willfulness in Setting Fire. Jn an action under Revised Statutes 1909, section 5433, for double damages for willfully setting -fire to occasion damages to another, evidence of ill will by defendant against plaintiff was admissible on the issue of willfulness.</p> <p>5. WITNESSES: Evidence of 111 Will Between Parties Can be Considered in Determining Credibility, Where both parties testified at the trial, evidence of ill will between them can be considered by the jury in determining their credibility as witnesses.</p>

<p>1. HIGHWAYS: Where Couity Abolishes the Office of County Engineer, Warrants May be Issued to Road Supervisors Without Ap- , proval by Ex-officio Engineer. Under Revised Statutes 1909, sections 10558, 10571, 10572, where a county votes not to have a county highway engineer, the duties of such office are abolished, and the county court may order warrants drawn to road overseers without having them approved by the county surveyor acting as ex-officio engineer.</p> <p>2. STATUTES: General Purpose or Intent Controls Construction. The cardinal purpose or intent of a whole act controls its construction, and words and clauses in different parts of the statute must be read in a sense which harmonizes with the subject-matter and general purpose.</p>

<p>Appeal from Circuit Court of Howell County. — Hon. E. P. Dorris, Judge.</p>

<p>Appeal from Circuit Court of Pemiscot County. — Hon. Sterling H. McCarty, Judge.</p>

<p>1. HIGHWAYS: Negligence of Automobile Driver in Running Down Plaintiff’s Colt on Highway Question for Jury. Where plaintiff’s colt, ranging on a public highway, was struck by defendant’s automobile, and it appeared that the colt was in plain view, was seen by the operator of the car, that it paid no attention to warning signals, and that defendant ran the car up to within such close proximity to it and at such a rate of speed that it could not stop when the colt turned the wrong way, held to take the question of negligence to the jury.</p> <p>2. -: Care Must be Used by Motor Vehicle Driver Not to Injure Animals Running at Large. Laws 1911, page 330, section 12, subsection 9, requiring a motor vehicle driver to use the highest degree of care that a very careful person would use under similar circumstances, applies to injury to animals running at large on a highway, as well as to animals which are being driven or in control of some one.</p>