Volume 205 — Missouri Reports

— Now. William L. Jarnott, Judge. (1) Relators were entitled to judgment of ouster on failure to answer October 3, 1903. A sufficient answer and return was not filed until January 25, 1904. State ex rel. v. Griovanomi, 59 Mo. App. 43; State ex rel. v. Yallins, 140 Mo. 535; R. S. 1899, sec. 4460. (2) Qua warranto is tbe proper proceeding to test tbe right of school directors to- hold office, and thereby test the validity of the district’s formation.

Transferred from Kansas City Court of Appeals. (1) The deer in controversy were not game animals in the ordinary and accepted meaning of the term, and were not embraced in,, or germane to, the subject of the game law, as expressed in its title, and were not, therefore, within the provisions of said law. Laws 1905, p. 158; sec. 28, art. 4, Con. of Mo.

— Hew. James Gibson, Judge. . (1) The recommendation of the Board of Public Works to the Common Council, made August 11, 1896, is void. St. Louis Q. & C. Co. v. Yon Yersen, 81 Mo. App. 519; Schoenberg v. Field, 95 Mo. App-. 241. (2) Ordinance 7535, providing for the doing of the work, is void.

— Now. Robert A. Anthony, Judge. Under the law and the evidence the verdict should have been for plaintiffs. Meek & Thornton, Exrs., v. Perry, 36 Miss. 245; Page on Wills, sec. 414; Hoope’s Estate, 174 Pa. St. 195; Hartman v. Stricklin, 82 Va. 238; Taylor v. Wilburn, 20 Mo. 306; Harvey v. Sullens, 46 Mo. 153; Dingman v. Romine, 141 Mo. 466; Smith v. Henline, 174 111. 198; Rich v. Gilkey, 73 Me. 596.

<p>1, SALES: Cornered Market: Avoidance of Contract. Where plaintiffs, sellers of number two red winter wheat, were as much to blame for a corner in the wheat, as were defendants, buyers from plaintiffs, the courts will not set aside those sales and enjoin a bank or the exchange from paying to defendants the money put up to meet the margins.</p> <p>2. -: -: -: Fixing Price. The fact that one of defendants, a purchaser of wheat from plaintiffs for future delivery, testified that after he-and his associates had cornered the wheat they could have named two dollars a bushel as the price, is not sufficient to establish a combination and conspiracy that will avoid the contracts of sale, but the question still remains whether or not the price they actually named (in this case ninety-two cents) was unreasonable and fictitious; and in determining that question other causes that might have influenced the price, such as shortness in the crop, rumors of war in wheat-growing countries, prices prevalent in other cities and prices of other kinds of wheat in the same city while the corner lasted, and prices of the same kind of wheat after the corner ended, are to be considered.</p> <p>3. -: -: -: -: Rules of Exchange: Neglect to Invoke. "Where sales for future delivery of grain were made on a board of trade or exchange and under contracts on which margins have been deposited, and were made with specific reference to the rules of the exchange, those rules are to be read into the contracts, and if they give the board of directors power, in case of a failure of seller and purchaser to adjust their respective claims, when called upon by either, to direct the payment of the deposit of margins, under such terms as they may prescribe, that power should be considered among the influences calculated to control the price; and a seller who had the right to invoke that power and neglected to use it, has no right to complain in a court of equity of unfair treatment.</p> <p>4. -: -: Illegal Contracts: Federal Statute. The Federal statute denouncing certain sales of grain as illegal, has nothing to do with contracts made in Missouri to be performed in Missouri. And contracts for the purchase of grain made by residents of Missouri through Chicago agencies, to be delivered in Missouri, are also such contracts.</p> <p>5. -: -: -: State Statute: Secs. 8978 and 8981: Equity. Section 8978, Revised Statutes 1899, denouncing every pool, trust, agreement and combination to regulate, control or fix the price of any article therein referred to, or to limit the amount of any product or commodity to be produced, as illegal, and the two sections next following, making it the duty of the Attorney-General and the prosecuting attorneys to take certain action to prevent the violation of the statute, and to restrain those who would violate it, are intended for the correction and prevention of such unlawful acts, by proceedings in court in the name of the State; and section 8981 gives to a person injured by such unlawful act a remedy which is by a suit for damages wherein he may “recover three-fold the damages he has sustained,” etc.; and if a defendant was guilty of violating section 8978, and plaintiff was injured thereby, plaintiff’s remedy is a suit for damages under section 8981, and not otherwise. His remedy is not by a suit in equity. In aid of the suit at law, upon proper showing, as of insolvency or fraud, a court of equity might hold the marginal deposits, to prevent their dissipation while the suit was pending, but otherwise there is no equity jurisdiction.</p> <p>6. -: -: -: Sections 8965 and 8969. The unlawful conduct referred to in section 8965, Revised Statutes 1899, is likewise a matter between the State and the offending party; and the contract or agreement declared by section 8969 to be void is the contract or agreement to do what sections 8965 and 8966 forbid, but that contract is not an agreement made by a seller of grain to sell purchasers so much wheat to he delivered in future. There is no law forbidding the purchase of grain to be delivered on a future date.</p> <p>7. -: --: Large Sales: Bulling Market: Future Delivery. The law does not forbid the purchase of grain to be delivered in the future. Nor does it limit the quantity of a commodity one is permitted to buy, so long as he is guilty of no fraud or unlawful combination, even though his purchases aggregate an amount so large as to result in enabling him to bull the market.</p> <p>8. -: -: Equity. The gravamen of plaintiff’s complaint is that defendants combined to create a corner in wheat for December, the time the wheat sold by plaintiff to them in the summer and fall was to be delivered, and thereby forced the price to an unreasonable and fictitious figure. The evidence does not show that the price was fictitious or unreasonable, but if it had, it at the same time would have shown that plaintiff during the month of December sold very large quantities of the same kind of wheat at the same fictitious and unreasonable prices and reaped large gains from such sales. It also shows that plaintiff was as active in the market on one side as defendants were on the other, and that it was a battle between the bears and the bulls, in which the bulls were the victors. Held, that there is nothing in that kind of contest that especially appeals to the jurisdiction of a court of equity, and that plaintiff neither by its pleading nor by its evidence had made out a case that calls for the exercise of that jurisdiction.</p> <p>9. -: -: -: Arbitration. Where the parties to the contracts of sale of grain had, both by the rules of the exchange and the contracts themselves, made the board of directors of the exchange arbitrators of their differences, and there is nothing unreasonable or unlawful in the rules, and no charge is made of fraud or improper conduct on the part of the board, a court of equity will not exercise its extraordinary powers to prohibit the board from doing what the parties by their contract expressly authorized them to do.</p> <p>10. REMEDIES: Under Statute:. Equity. Where a right is created by a statute and a remedy for its violation is given by the same statute, that remedy is exclusive, unless the statute says otherwise.</p>

<p>1. MOTION: No Notice. A motion to set aside a submission of a cause on brief and argument, and to set down the case for further argument, will be stricken from the files, where no copy of the motion and of the brief in support thereof and no notice thereof have been served on the opposite party or his counsel.</p> <p>2. Writ of Error: Interlocutory Judgment. Error may be brought only on final judgment, and a writ of error sued out before final judgment is improvident. Interlocutory judgments in partition may be reviewed in appellate courts, but the proceeding, under the statute, is by appeal, not error.</p> <p>3. -: Affirmed on Appeal. Where a judgment has been affirmed on appeal, for failure to comply with the statute (sec. 812, R. S. 1899) and the rules of the court, a review by writ of error is precluded. If a judgment is affirmed it so remains, unless disaffirmance be allowed on timely application at the same term, or unless overturned on a new appeal.</p> <p>4. Motions. There must be an end of motions in a case. Where a judgment has been affirmed and disaffirmance disallowed, subsequent motions to set aside the judgment of affirmance will be stricken from the files. Both the doctrine of stare decisis and of res adjudieata so require.</p>

Transferred from Kansas City Court of Appeals. (1) The cutting of the branches on trees, located on the public street, by the telephone company, was not a damaging of the private property of plaintiffs for public use within the meaning of article 2, section 21, of our Constitution. When the public acquires a street in a city, either by condemnation, grant or dedication, it may be applied to all purposes consistent with the proper use of a street.

<p>1. NO ABSTRACT: Dismissal. Where there is no certified copy of the record entry of the judgment appealed from, showing the •term and day of the term, month and year when the same was rendered, nor, in lieu thereof, any perfect transcript or abstract showing any judgment or order granting an appeal; nor any abstracted record entry showing a motion for a new trial filed at a given date and a given term, or overruled, nor a bill of exceptions filed in vacation or time given to file in vacation, the appeal will he dismissed.</p> <p>2. RECORD ENTRIES: In Bill. Record entries proper have no place in the hill of exceptions. The hill is filed after the judgment and entry of filing of motion for new* trial, and entry of the ruling of the court thereon, and of the order granting the appeal, and of the order for time in which a hill of exceptions may he filed, are all spread upon the record, and hence those entries and orders have no place in the bill, and are not preserved for consideration if found only therein and the printed abstract thereof. And being absent from the record proper, the appeal will he dismissed.</p>

<p>1. RESCINDING CONTRACT: Agent Selling His Own Stock. If defendant was plaintiff’s agent to purchase stock of a corporation and in fact sold to him his own stock, and withheld from him the fact that he was the owner, plaintiff has the right to rescind the sale and recover from defendant the full purchase price with interest.</p> <p>2. -: -: No Damages. Nor is plaintiff’s right to rescind the sale, in such case, impaired by the fact that the sale was beneficial to him. Such contracts are against public policy.</p> <p>3. -: -: Option: By-laws. A clause in the by-laws of a corporation requiring the record owner of stock “to offer it and give the preference to this corporation before selling the same to a new stockholder,” gave an option to the company on the stock of a stockholder who wished to sell, but not to another stockholder. And such by-law is of little value in establishing the relation of principal and agent between plaintiff, who purchased the stock of a retiring stockholder, and defendant, another stockholder, who sold him that stock.</p> <p>4. -: -: Option: Evidence of Defendant’s Ownership. A stockholder, who wished to retire on account of his wife’s ill-health, offered his $3,750 of stock to the other two stockholders for $5,750. They were not able to buy, and he agreed that one of them (defendant) might sell it and have all he could get over $5,750. Defendant then wrote to plaintiff that “one of” the stockholders “wishes to sell his fourth interest; will take $7,000 to buy him out.” On being assured by defendant that there was nothing in the deal for him, plaintiff bought the stock for $7,000, sending part of the money to defendant, and the balance to the retiring stockholder, receiving the certificate of stock assigned to him by such retiring stockholder. Subsequently defendant wrote plaintiff that the retiring stockholder did not give him “$1,200 to make the sale. I do not mind telling you that I got $1,250 out of it, but he did not give it to me. I had an option on his stock at $5,750, and you bought it at the lowest possible dollar that would buy it. He offered it to me by virtue of a clause in our by-laws which provided that he had to give me the opportunity to buy it before offering it to any one else. He made me the price and I immediately took an option upon it, . intending to buy it myself, if I could not find some satisfactory person to take it. I was not in shape at the time to buy it myself and thought you would be glad to get an Investment of this kind.” This was the only option developed by the evidence. The by-laws did not require an offer to sell to be first made to other stockholders, but to the corporation. Plaintiff prior to the sale did not talk about it to the retiring stockholder, who testified that he had an arrangement with defendant by which he could take the stock and handle it for him at $5,750, and defendant denied he was the plaintiff’s agent, but testified that he did not go to the retiring stockholder and make the trade with him after he talked with plaintiff, but stated “the trade was made before I sold it” to plaintiff. Held, first, that the evidence was sufficient to sustain the verdict of the jury that defendant held an option on the stock; second, that it was an option personal to him and not to the corporation; third, defendant by paying $5,750 to thé retiring stockholder was entitled to his stock; and, fourth, this made him such an owner of the stock as entitles plaintiff to have the sale rescinded and recover the price paid, with interest.</p> <p>5. -: -: Definition of Option. The obligation, by which one binds himself to sell, and leaves it discretionary with the other party to buy, is what in law is termed an option, which is simply a contract by which the owner of property agrees with another that he shall have the right to buy the property at a fixed price within a certain time. If defendant had a valid and subsisting option to buy a fellow stockholder’s stock at a stipulated price, he had the right to accept and perform the terms of the option, and then his title to the stock became complete; and when within the life of the option he sold the stock to plaintiff and had the stockholder transfer it directly to plaintiff, that was equivalent to going to the stockholder and accepting the terms of the option, taking the transfer to himself, and then transferring it to plaintiff; and if he withheld the facts from plaintiff, he was such owner of the stock as entitles plaintiff to rescind the sale.</p>

— Row. J. W. Alexander, Judge. (1) Plaintiffs have no standing in a court, of equity because defendant, Katie A. Stitt, was the executrix of Jacob A. Stitt and as such could become the purchaser, of lands of which the said Jacob A. Stitt died intestate, when the same was sold under foreclosure of a deed of trust. Section 166, Revised Statutes 1899, prohibiting an executor from purchasing the real estate of an estate, has reference only to probate sales.

— Hon. Wm. A. Davidson, Judge. (1) Respondent having accepted the damages awarded by the commissioners, there was nothing left for trial by jury, (a) In the appropriation of land for a public use the appropriator may pay the damages awarded by the commissioners, take possession of the land, apply the same to public use, and yet file and prosecute exceptions to the award. This, however, is solely for the reason that it is authorized by the statute.

<p>1. APPELLATE JURISDICTION: Amount in Dispute. In determining the amount in dispute the court may look within the mere shell of the pleadings and judgment — the mere colorable amount in dispute — and seek out the real amount. That may not be the amount of the judgment appealed from.</p> <p>2. -: -: Counterclaim: One Item. Plaintiff sued for $7,043.97, balance due for reconstructing under contract a power station for defendant. Defendant answered, denying owing plaintiff that sum or any sum, and setting up a counterclaim for four thousand three hundred dollars damages for eighty-six days’ delay in performing the contract after the day set for full performance, and for certain extra work amounting to $142.74. At the trial defendant admitted it owed plaintiff the amount sued for, and plaintiff admitted it owed defendant the item of $142.74, and the only issue remaining was the dispute as to the four thousand three hundred dollars, and on that the court heard evidence and found defendant was entitled to fifty dollars a day for thirty-seven days’ delay, or $1,850, and deducted that sum and the other item from the amount sued for and gave judgment for $5,789.30, and defendant appealed. Held, that the amount in dispute, in no view of the case, exceeds four thousand five hundred dollars, and therefore the Supreme Court does not have jurisdiction.</p>

— Hon. James Gibson, Judge. (1) The conclusions of law drawn by tbe court absolutely ignore tbe rulings of tbis court in tbe Iinvill-Greer case, where every salient and dispositive fact herein involved was determined by Division Two of tbis court. Linvill v. Greer, 165 Mo. 380.

<p>1. WILLS: Valid and invalid Portions: Changing Scheme. While a will may be valid in part and invalid in part, yet in determining what was the real scheme of disposition in the mind of the testator the valid and invalid portions must be.alike considered, for the reason that the presumption must be indulged that the testator in formulating his scheme of disposition thought all parts of his will were valid. Hence, if the elimination of the invalid portions, if any there be, so changes the general scheme and purpose of the testator as to make the remaining portions amount to a new and different will, then the whole must fail, and for the reason that courts cannot make ' wills.</p> <p>2. -: Clear Devise: Cut Down by Subsequent Clause. Where a certain and definite estate is granted in plain and unequivocal terms in one clause of the will, it cannot be lessened or cut down by a subsequent clause, unless the language used in the subsequent clause is as clear, plain and unequivocal as the language used in the grant.</p> <p>3. -: -: -: Void Clause: Changing Scheme of Disposition. The testator had .two daughters and a son, and gave to the son one-third of his estate absolutely. Another clause of his will read: “I will and devise to each of my daughters...... each one-third of my estate for and during their natural lives, then to go to their bodily heirs, if any, if not, then to their brother......and his bodily heirs, and it is my will and I hereby so direct, that the share, interest and estate hereby devised be held in trust for each of them and for their only and sole use and benefit by their brother, who is hereby appointed and created their trustee......And I further direct and will that he ......pay over to each of said sisters as much of the interest accruing on the means hereby devised to each of them as will abundantly provide for their comfort and necessities.” Held, first, that the first sentence or clause gave to each of the two daughters a separate life estate in one-third of the estate, placing it in trust, so as to give each the earnings of said life estate, as their absolute property, the corpus itself to be preserved and to go, upon their death, to their respective bodily , heirs, if there be such, and if not, to their brother “and< his bodily heirs;” the usufruct or earnings of the life estates going to the daughters respectively, the full proceeds becoming their individual property and cannot be added to the corpus of the trust fund; second, by the second clause or sentence the testator undertook, in a vague and uncertain way, to limit the amount of the earnings that should go to the daughters to such an amount “as. will abundantly provide for their comfort and necessities,” leaving it to the trustee to determine what portion of the earnings or income their abundant “comfort and necessities” might require, .with no rule by which he was to be guided, and, hence, the latter sentence is void, in that, by indefinite words, inferential in their character, it attempts to impair or cut down or qualify the preceding definite devise; tMrd, the elimination of that clause, however, does not so change the testator’s scheme of disposing of his property as to destroy the other definite clause, or, by holding it valid, make a new and different will for him.</p> <p>4. -: Void! Clause: No Administration. A clause in a will which directs the executor to administer the estate “without going into court or taking letters testamentary” is violative of public policy and void; but it does not destroy the will in other respects.</p> <p>5. -: Changing Scheme: Definite and Indefinite Clauses. Where there is a definite clause giving to devisees for life the full usufruct and earnings of a definite portion of the estate, and that is followed by an indefinite, uncertain and ambiguous clause which cuts down or qualifies that definite devise and is for that reason void, to eliminate it will not destroy the definite clause or the whole will, when, by eliminating it, the general plan of the testator to divide his property among his children according to a definite scheme remains apparent and unimpaired.</p>

Louis City Circuit Court. — No». ■ Daniel G. Taylor, Judge. (1) This was an executory contract on express conditions. The trial court found these conditions were unfulfilled, and therefore no liability could arise. Plaintiff’s express' guaranty that its device possessed certain qualities and would produce certain effects was more than a mere warranty. It was a condition precedent to any obligation on the part • of defendant. Pope v. Allis, 115 TJ.

— Hon. Asbwry Burhhead, Judge. The facts in this case, as admitted by the pleadings and shown by the evidence, are that Joseph Lebow died intestate and without issue. The plaintiffs are nephews and nieces of Joseph Lebow, to whom Lebow in his lifetime had given a certain tract of land in the State of Tennessee.

Louis City Circuit Court. — Hon. Robert M. Foster, Judge. (1) The court erred in holding that the former suit was not res adjudicata, and did not finally dispose of the suit in controversy.

<p>1. LOST RECORD: Parol Evidence: Order of Publication: Tax Sale. The contents of a lost or destroyed record may be established by parol evidence, in the same manner that the contents of other lost or destroyed documents are shown. Where the record of the order of publication and the certified copy delivered to the publisher were both lost or destroyed, it was proper for the court to admit in evidence the files of the newspaper containing the publication of the lost or destroyed order, where the editor swore the files contained a true and correct copy of the order delivered to him by the clerk for publication.</p> <p>2. TAX SALE: Petition: Unknown Heirs: No Description of Interest. A failure to describe in the petition in the tax suit the interest of the unknown heirs, and how they derived title, is fatal to that suit, and the judgment rendered thereon is a nullity. A simple allegation that “Robert C. Hayes at the time of his death was the owner of the above-described real estate and his heirs are now the owners thereof and they are unknown to plaintiff, for which reason their names cannot be inserted in this publication,” is not sufficient, and does not bring them into court.</p> <p>3. -: Order of Publication: Unknown Heirs. An order of publication in the tax suit which fails to state that there “are persons interested in the. subject-matter of the petition whose names he cannot insert therein because they are unknown to him,” as the statute requires, is faulty.</p> <p>4. -: Void Judgment: Collateral Attack. A sale made under an execution based upon a void judgment may be attacked in a collateral proceeding, for instance, in a suit to quiet title.</p>

— Hon. James L. Fort, Judge. (1) The action of ejectment cannot he maintained against defendant alone when he did not reside on the land at the time of bringing the suit when a tenant resided on the land and was not made party defendant. R. S. 1899, secs. 3056 and 3060; Callahan v. Davis, 90 Mo. 83; Sells v. McAnaw, 138 Mo. 274; Shaw v. Tracey, 95 Mo. 532. (2) Defendant has shown a perfect title by adverse possession.

Transferred from St. Louis Court of Appeals. (1) The court erred in giving plaintiffs’ second instruction, (a) There is no evidence upon which to predicate that instruction.

<p>• 1. WILL: Intention. The testator’s intention should never be lost sight of in construing a will. And to throw light upon that intention, the court has the right to look at the conditions and circumstances surrounding him at the time he executed it, in .connection with the provisions of the will itself.</p> <p>2. -: -: Presumption. It is presumed in the construction of a will that the testator intended to dispose of all his property, and not to' carve out a particular estate and dispose of that, leaving the rest to descend to his heirs according to the Statute of Descents and Distribution.</p> <p>3. -: To a Son and His Heirs. A conveyance of land, by deed or will, at common law or under the statutes, to a person and his heirs creates and vests in such person a fee-simple title to the land — the most complete and perfect title known to law.</p> <p>4. -: -: During Natural Life: Base Fee. The testator had a wife and one child. By one clause he devised one-half his property to his wife and her heirs during her natural life and provided that if his son should survive her, at her death that half “undisposed of shall belong to him.” The next clause read: “I give, devise and bequeath unto my said son, Sylvester S. Dougherty, and unto his heirs, one-half of my property, real, personal and mixed, to have, hold, control, use and manage as he may see fit and proper during his natural life; and should my beloved wife survive him, at his death the property undisposed of shall belong to her.” The wife and' son made a deed to land, the son married and has children, and the wife died leaving no other child than the- son. Held, first, that the manifest intention of the testator was to dispose of his entire estate to his widow and son; second, the one-half of the estate which was devised to the widow, upon her death passed to and vested in the son, and their joint warranty deed conveyed that half to the grantee; tMrd, the will gave to each a base fee in one:half of the estate, and upon the death of either the base or determinable fee was to terminate and be transferred to and vested in the survivor in fee simple absolute; by the death of the widow his base fee in her half was enlarged into a fee simple absolute, and by her death the qualified or conditional fee which was devised to her in his half was defeated and thereby was transferred to and became vested in the son. Hence, their joint deed conveyed the entire estate in the land and the children of the son took no interest by virtue of the will in the half devised to him.</p>

<p>1. PLEADING: Amendment. When an amended petition is filed it operates as a withdrawal or abandonment of the original petition.</p> <p>2. -: --: New Cause: Negligence: Breach of Contract. In his original petition against a railroad for damages for delay in shipping cattle, plaintiff alleged defendant owed him the duty to carry the cattle “within a reasonable time” and negligently failed to do so. This charge was omitted from the amended petition and in lieu thereof a special contract was alleged for a special or- fast train which, according to the alleged contract, was to leave the place of shipment before seven o’clock one morning and arrive in Chicago before seven o’clock of the next morning, and a breach of that contract, and consequent damages. At the trial plaintiff’s counsel stated they stood solely upon that oral contract. It was not proved and the court so instructed the jury, but refused to instruct them to find for defendant, but did instruct them that it was defendant’s duty to carry the cattle “within a reasonable time and without unnecessary delay,” and that if it failed to do so their verdict should be for plaintiff. Held, error. The amended petition stated a new and different cause of action, plaintiff had abandoned his original petition, and to permit him to recover on the theory mentioned in the instruction given would be to permit him to sue upon one cause of action and recover upon another. Whether the action is in form ex contractu or ex delicto, if the cause of action as set forth in the petition originated in a contract, the contract must be proved as laid.</p> <p>3. -: -: ————: -: -: Answer: Waiver. Where the cause was tried upon the original petition, which in legal contemplation was abandoned by the filing of an amended petition, the filing of an answer to the amended petition was no waiver by defendant of its right to insist that plaintiff totally failed to prove the cause of action stated. It Is not a question of variance, but of a total failure of proof.</p>

<p>1. APPELLATE JURISDICTION: Constitutional Question. A reference in the instruction to a constitutional provision which In no manner relates to any issue in the cause, does not give the Supreme Court jurisdiction over the appeal.</p> <p>2. -: -: Time to Complete Work. Where the instrue-• tion asked told the jury that under a certain section of the Constitution the city had authority by ordinance to grant additional time in which to complete the public work, and that section simply provides for four classes of cities and general charters for- each class, the issue of whether or not the city had authority to extend the time to complete the public work ' was not thereby made a constitutional question, and the instruction did not give the Supreme Court jurisdiction of the appeal.</p> <p>3. ——: -: In Motion for New Trial. Where one ground for a motion for a new trial was that the giving of a peremptory instruction to find for defendants deprived plaintiff of its property without due process of law under the State and Federal constitutions, and that point is then made for the first time, and none of the questions presented to the trial court for determination .required a construction of the Constitution, the Supreme Court is not thereby given jurisdiction of the appeal.</p> <p>4. -: -: Construction Must be Involved. In order to give the Supreme Court jurisdiction of the appeal on the ground that a constitutional question is involved, a construction of the Constitution must in some way be involved in the decision which determines the rights of the parties.</p>

— Hon. Robert A. Anthony, Judge. (1) If the defendant is a resident of the county the clerk has no authority to issue an execution, on a transcript judgment from a justice of the peace, but the same must be sued out of the court in which the transcript is filed. R. S. 1899', sec. 4019; Rollins v. Mc-Intire, 87 Mo. 509; Freeman’s Void Judicial Sales, sec. 23.

Charles Circuit Court. — Sow. H. W. Johnson, Judge.. (1) The court erred in refusing to give the peremptory instruction asked by defendant at the close of all the evidence. Said instruction should have been given because, under the evidence, the act of negligence complained of by plaintiff was not the act of defendant but the act of a fellow-servant. Forbes v. Dunnavant, 95 S. W. 934; Bowen v. Eailroad, 95 Mo. 277; Herbert v. Wiggins Ferry Co., 107 Mo.

<p>1. NEGLIGENCE: Presumption in Favor of Injured Party. Where there is no proof to the contrary a presumption arises that deceased was in the exercise of due care at the time he was struck by the railroad engine. But this presumption only obtains in cases where there is no evidence one way or the1 other as to how the accident occurred.</p> <p>2. -: -; In Favor of Defendant: Presumption upon Presumption. Although the law will, in the absence of anything showing the contrary, presume that the deceased was in the exercise of due care at the time of the accident, it will not further be presumed that the injury was occasioned by the negligence or carelessness of the defendant, its agents or employees; for that would be building one presumption upon another, a thing the law does not permit.</p> <p>3. -: -: -: -: Must be Proved. Negligence upon the part of defendant will not be assumed from the fact that deceased will be presumed to have been in the exercise of due care at the time of his injury, but must be proved by plaintiff to entitle her to recover for his death.</p> <p>4. -: Presence of Deceased: Inferred Knowledge. The evidence showed that it was the custom of defendant in moving an engine from the coming-out track to the main track to have some switchman precede it or ride on the rear end as it backed out, and to send a sufficient force of men in time of snowstorms to clear the switches, and that on the night of the’ accident there were four men, including deceased, engaged in that work. Held, that, the men being in the service of defendant, the engineer on the coming-out engine must have known of their presence, and these facts authorized an instruction predicating plaintiff’s right to recovery upon the fact that defendant’s servants knew or hy the exercise of ordinary care would have known of the presence of deceased on the coming-out track.</p> <p>5. -: Knowledge of Presence: Knowledge of Peril: Inconsistent Instructions. Defendants may have known of deceased’s presence on the track, and yet not have known‘of his peril; or they may have known of his presence and peril, yet not have been negligent in not discovering his peril in time, hy the exercise of ordinary care, to avoid injuring him. So that an instruction for plaintiff to the. effect that if defendants knew or by the exercise of ordinary care could have known of deceased’s presence on the track and negligently, • that is, without ringing the hell or sounding the whistle, backed the engine over him, and an instruction for defendant which told the jury that “there is no proof of the negligence of defendants in not having discovered deceased at or near the track, and in a position of peril, in time by the exercise of ordinary care to have avoided injuring him,” are not inconsistent. They relate to different matters.</p> <p>6. -: Instruction: Assumption of Fact. The assumption in an instruction of a fact about which there is no controversy, or in'relation to which the evidence is clear and undisputed, is not error or prejudicial to the adverse party.</p> <p>1. -: -: -: Admitted in Answer. Where the defendant alleged in its answer that “the injuries to deceased mentioned in the petition were caused hy his own negligence at the time and under the circumstances described in the petition,” it will not he held that an instruction which assumes as an undisputed fact that deceased was struck hy the engine mentioned in the petition, was error.</p> <p>8. -: -: —-: Evidence All One Way. Where the evidence all tended to show that deceased was struck by an engine at the place and time charged, and, while no person saw the a-ccident, the circumstances all tend to indicate he was killed in the way and hy the engine as charged, an instruction for plaintiff which assumes that he was struck by that engine, is not erroneous.</p> <p>9. -: Sweeper on Track: Duty. It is as much the duty of an employee of defendant, engaged in sweeping snow from the tracks, to look out for approaching engines and cars as it is the duty of an engineer and fireman to look out for him and to avoid injuring him.</p> <p>10. -: Employee: Struck by Engine: Contributory Negligence: Demurrer. Deceased had been working for the defendant railroad company for . about two years. On the dark night of' his injury £e was engaged in sweeping snow off of the switches, so that they might be thrown and the engines coming out of the roundhouse might pass from one switch track to another onto the main track. He knew the exact time the engine which struck him would be backed out of the roundhouse, to be attached to a regularly scheduled train. As the engine approached, making the ordinary noise of an engine operated by its own steam, and running at a rate of speed not exceeding three miles an hour, he allowed himself to be struck by it, although he could, even when it was within ten feet of him, have stepped aside and avoided the collision. Neither his vision nor his hearing was impaired, and his duty required him to go between the tracks. Held, that, even though there was no bell rung or whistle sounded, and even though defendant’s engineer -and fireman were negligent in not discovering his perilous position in time to have avoided the injury, he was guilty of contributory negligence in failing to look for the approaching engine, and his widow cannot recover for his death.</p>

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) “ Our statute, like tke Tenterdem Act of England, should be construed as embracing every false representation untinged by a fraudulent intent, but it does not constructively include any kind of actual fraud in wantonly misrepresenting a man’s credit or identity more than any other kind of fraud in fact.

Charles Circuit Court. — ILon. H. W. Johnson, Judge. The court erred in refusing to take the case away from the jury at the close of the plaintiff’s case and at the conclusion of all the evidence, because the proof showed conclusively that the deceased was guilty of such gross contributory negligence as to bar a recovery.

J. R. Stover, Judge. (1) Under the undisputed evidence plaintiff was not entitled to recover, and the court should have directed a verdict for defendant. 1. Plaintiff’s theory of the case is disproved by the conceded physical facts; and the verdict is contrary to reason and ought not to be permitted to stand.

<p>Appeal from St. Louis City Circuit Court— Hon. H. D. Wood, Judge.</p> <p>(1) There is no evidence in the record of any express contract between plaintiff and defendant relating to his employment as manager, or relating to- the amount of his salary after the 1st day of May, 1892. (a) The evidence and especially the account of the plaintiff on defendant’s books kept by plaintiff himself negatives any such express contract, (b) The evidence clearly shows that aside from the resolution of June 9, 1892, there is no- entry in any of defendant’s books making any reference to, or giving the plaintiff credit for, or charging the defendant with any salary on plaintiff’s account; and the evidence shows that plaintiff never made any claim therefor until shortly before the institution of this suit. (2) Plaintiff being a director and vice-president of the defendant company is not entitled to recover any compensation for services rendered as manager unless such compensation has been fixed by a by-law or resolution of the corporation before the services were actually- rendered, or unless such services were entirely outside of the line of his duty as director and vice-president, and were performed at the instance of defendant’s officers, whose powers were of a general character, and under such circumstances as to raise a fair presumption that the parties intended and understood that they were to be paid for. Bennett v. St. Louis Car Roofing Co., 19 Mo. App-. 349; Besch v. Western Carriage Mfg. Co., 36- Mo. App. 333; Pfeiffer v. Lansberg Brake Co., 44 Mo-. App. 67; Rose v. Carbonating Co., 60 Mo. App-. 32; RemRemmers v. Se-ky, 70 Mo. App. 364; Beach v. Sto-uffer, 84 Mo. App. 395; Taussig v. Railroad, 166 Mo. 33; Wagner v. Edison Electric Ulum. Co., 177 Mo. 62. (3) The resolution of the directors of June 9', 1892, related to services rendered by plaintiff prior to that time, plainly the services rendered up to May 1, 1892. This, resolution does not relate to or embrace any services to be rendered thereafter, and is therefore no evidence of any express contract to pay plaintiff a definite sum for services rendered thereafter.</p> <p>(1) The resolution should have read and should now be construed as reading, “for the past and present year twenty-five hundred dollars.” However, should the resolution be taken as it stands and construed literally, the legal effect, for the purpose of fixing the salary of the manager at twenty-five hundred dollars for that year and the succeeding years of his service without notice of any change in the terms of service, would be the same. If, on the other hand, by the term “present year” was meant the third year, and the board intended thereby to fix the compensation of manager for the third year at twenty-five hundred dollars, a promise to pay him the same compensation for the succeeding years during which the warehouse company employed him as manager, was equally implied, in the absence of any notice to the contrary. When the board of directors fixed plaintiff’s salary at twenty-five hundred dollars, and continued Ms employment in the same capacity for succeeding years without notice of any change, there was an implied promise on the part of the company to continue said salary during such service. Wood, Master and Servant, sec. 96; 20 Am. and Eng. Ency. Law (2 Ed.), 16; O ’Hara v. Mfg. Co., 2 N. Y. City Rep. 158; Ins. Co. v. Barbar, 93 N. E. 1024; Farmers’ Loan & Trust Co. v. Railroad, 152 N. Y. 251; Railroad v. Owen, 121 Ala. 505; Tatterson v. Mfg. Co., 106 Mass. 56; Crane Bros. - Co. v. Adams, 142 111. 125; Rose v. Carbonating Co., 60 Mo. App. 28. . (2) It is beyond dispute that it was intended and understood between the parties that his services as manager were to be paid for, and the fact that plaintiff in June, 1892, while manager, accepted five shares of stock and consented to become a director and vice-president of the company, cuts no figure in the ease. It cannot be said that it was expected by either party that plaintiff, by reason of having become an officer of the corporation, would not continue to' be compensated for the performance of the arduous and exacting duties attaching to the situation of manager, and which were entirely beyond the scope of his duties as director and vice-president. Taussig v. Railroad, 166 Mo. 28.</p>

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. An action by a widow for tbe wrongful killing of ber husband is not an action for injuries to the person of plaintiff, and does not abate by the death of the defendant. Knight y. Lead & Zinc Co., 75 Mo.

— Eon. J. E. Slover, Judge. (1) The court erred in instructing the jury at the close of plaintiff’s evidence, to find for defendants. Upon what theory the court gave that instruction we do not know.

Louis City Circuit Court. — Eon. H. D. Wood, Judge. (1) Mrs. Sophia A. Papin could not delegate to her executor the execution of the power given to her, to.sell the property and turn over the proceeds to her brother, George Spencer Shaw. Her power of sale could not be delegated.

Loáis City Circuit Court; — Horn Jas. B. Kinealy, Judge. (1) Appellants, at the death, of their sister Victoria, were each entitled to the one-eighth of the property in question. The will of the father gave to respondent Julia, and her sister Victoria, the property in common, and not as joint tenants, and so the court below held. Lemmons v. Reynolds, 170 Mo. 227; Rodney v. Landau, 104 Mo. 251; Davis v. Smith, 4 Har.

Louis City Circuit Court. — Now. O'Neil By cm, Judge. The court erred in holding that Punch became on January 12,1903, and continues to be the lawful owner and holder of certificate No. 35 for one thousand shares of the capital stock of said company, and in refusing the prayer of said petition and cross-complaint for the cancellation of said stock, because: (1) Where the stock of a corporation is issued as full paid and non-assessable, for money, property or labor, grossly…

Louis Court of Criminal Correction.— Eon. Hiram N. Moóre, Judge. (1) The charter confers upon the Municipal Assembly authority to pass the ordinance which the lower court declared to be void, viz., section 1398 of the Revised Ordinances of 1901. Charter, art. 3, sec. 26, pars. 5, 10, 14; St. Louis v. Cafferata, 24 Mo. 94. (2) A statute and a municipal ordinance may stand side by side unless they are utterly inconsistent or in conflict with each other.

Mandamus. (1) The demurrer to part of respondents’ return should he sustained for the reason that the acts, if any, of relator, in violation of the prior laws, can only be punished as therein provided and can afford respondents no excuse in this case. Dent v. West Virginia, 129 U. S. 114 (2) The power of the State to regulate dentistry is based solely on the police power, and it has some limitations. State v. Tower, 185 Mo. 100.

<p>1. PRACTICE: Mandamus: Facts Admitted: Issues. In mandar mus where the pleadings consist of the alternative writ, respondent’s return and relator’s motion for judgment non obstante, the case stands on an issue of law on any allegations of fact in the writ not denied by the return, and on the allegations of new matter in the return — all allegations of fact well pleaded being taken as true for the purposes of the motion.</p> <p>2. CERTIFICATE: Construing Law: Ministerial Officer. Courts are not bound by the ideas of a city register as to the legal import of the acts of one who registers as a dentist. The mere wording of his certificate that the applicant’s registration brought him within the provisions of a certain law is not binding on the courts.</p> <p>8. -: Dentist: No Affidavit: Refusal to License. Where a city register’s certificate, issued on June 4', 1897, prior to the time the Dentist Act of 1897 went into force, did not show that relator at the time of registering filed a copy of her diploma, duly sworn to by her, as required by section 2 of the act of 1883, she did not have the absolute right to compel the Dental Board to issue to her a license to practice dentistry. That act made the certificate only prima-facie evidence of the right of the holder to practice dentistry, and'a copy of the diploma and the affidavit should remain on file with the register, to afford protection against fraud in coming under the cloak of a sham or bogus diploma. And the Dental Board, appointed under the act of 1897, on receiving the certificate bearing that date, had a right to compel the holder, as a condition of her receiving a license, to appear and show that the certificate was not obtained through fraud.</p> <p>4. DENTIST: License: Act of 1897: Refusal to Comply with Prior Law. Where the city register’s certificate showing that relator was a licensed dentist was issued to her on June 4, 1897, while the Act of 1883 was yet in force, and relator forwarded that certificate to the Dental Board with the required fee for a license, and the board required her to appear and prove herself to be the lawful possessor thereof and that it was not obtained through fraud, and she refused to comply with such requirement and in consequence no license was issued to her, she cannot, on the theory that she was lawfully and regularly engaged in the practice of dentistry at the time of the passage of the act of 1897 and had complied with the laws theretofore in force and thereby was a lawfully licensed dentist although the board had not issued to her a license, compel the board, by mandamus, to issue to her a license.</p> <p>5. MANDAMUS: License: Laches. Relator’s laches must be taken into account on an application for a peremptory writ of mandamus.</p> <p>6. -: -: -: Persistent Violation of Law. Where relator has, whether through inadvertence or wilfully, continuously violated the law by practicing dentistry without a license, she ought not to be heard to complain of the action of the Dental Board in refusing her a license.</p> <p>7. -: -: Clear Right. Relator must show she has a clear and specific right to a license to practice dentistry before a peremptory writ of mandamus to the Dental Board to issue her a license will go.</p> <p>?. -: Dental Act of 1905: License: Examination. The Dental Act of 1905 affords no legal way for beginning the practice of dentistry in this State without a successful examination before the Dental Board; and a prior practitioner of dentistry who had no license cannot by mandamus compel the issuance of a license to her.</p> <p>9. -: ———■: License: Right to Relief. If the Dental Board imposed on relator requirements not authorized by the law, that is, not within its terms by fair construction, she would be entitled to relief by mandamus.</p> <p>10. VESTED RIGHT: Dentist. No individual has a vested right to practice dentistry. A license has no elements of a contract, because the person receiving it does not stipulate to use it. It is a mere naked grant of a privilege usable at the option of the licensee.</p>

Louis City Circuit Court.— Hon. Jno. A. Blevins, Judge. (1) Plaintiff’s motion for new trial having been sustained on one specific ground is deemed to have been overruled as to all others. The single question, therefore, is presented whether a new trial should have been granted because of instruction 2.

Louis City Circuit Court. — Row. Wm. M. Kinsey, Judge. (1) A municipal corporation has no power to borrow money and issue its negotiable bonds for corporate purposes, unless authority to do so be expressed in its charter or necessarily implied as being essential to carry into effect powers which are expressly granted.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) The demurrer to the amended petition should have been sustained. The action is a statutory one for damages for tort to a person resulting in death, which were not recoverable at common law, and the statute gives both a right of action and provides the remedy for death where none existed at common law. Brink v. Railroad, 160 Mo. 92.

<p>1. NEGLIGENCE: Killing Minor: $4,500 Stated as Damages. Plaintiffs cannot avail themselves of the right of action given by section 2864, Revised Statutes 1899, for the negligent killing of their minor son and at the same time by their petition limit their recovery to an amount less than the sum of $5,000 which that section specifies the defendant “shall forfeit and pay for every person or passenger so dying.” [Disapproving Marsh v. Railroad, 104 Mo. App. 577, and approving Casey v. Transit Co., 116 Mo. App. 235.]</p> <p>2. -: Different Statutes: Election: Amount of Recovery. For a death resulting from the negligence of the particular character specified in section 2864, Revised Statutes 1899, the aggrieved plaintiffs cannot elect to sue under that section or under sections 2865 and 2866. The right of action given by section 2864 is for a death caused by the negligence of the servant operating the defendant’s instrument of transportation, whether it be a locomotive, car, steamboat, its machinery, stage coach or other public conveyance; while the right of action given in sections 2865 and 2866 is for a death caused by the negligence of defendant, which may mean his own negligence, as, for instance, in furnishing an unsafe vehicle, or it may mean his negligence through his servant in some particular other than the particulars specified in section 2864, for which if the person injured had not died he would have had a right of action. These are purely statutory rights of action, and each must rest on its own statute.</p> <p>3. -: -: -: Pleading. The rights of action under the different statutes may be joined in the same petition, but they should be stated in different counts. It is not proper to join in the same count negligence on the part of defendant’s servants in their management of the car which struck and killed plaintiff’s minor son, and negligence on the part of defendant corporation in the matter of the equipment of the car.</p>