Volume 205 — Missouri Appeal Reports

<p>Appeal from the Circuit Court of Butler County. — Hon. Almon Ing; Judge.</p>

<p>Appeal from Circuit Court of Jasper County. — Hon. J. D. Perkins, Judge. .</p>

— Hon. L. B. Wood side, Judge. (1) “A master is not liable for injuries from hidden defects and dangerous, appliances which could.not have been discovered and avoided by reasonably careful inspection.” Taylor v. Centralia Coal Co., 155 111. App. 324; Mercer v. Atlantic Coast Line R. Co., 70 S. E., 742, 154 N. C., 399; Dunlap v. Indiana Union Traction Co., 90 N. E. 904; Fellows v. Stevens, 132 N. W. 1048.

<p>1. HIGHWAYS: Abandonment of Public Road not Shown by Order for New Road. In prosecution for obstructing road in violation of Revised Statute 1909, section 10533, that county court had ordered the establishment of new road in close proximity to road defendant had obstructed, held not sufficient to. show that old road had been abandoned at point of obstruction, especially where there was no order therefor, and where public continued to use, and overseers of district continued to work, old road.</p> <p>2. -: What Constitutes “Legally Established Road” “for Such Period.” Under Revised Statutes 1909, section 10446, as amended by Laws 1913, p. 658, sec, 15, and Laws 1917, p. 450, sec. 13, providing that roads “used as such by the public for ten years continuously and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads,” road so used for such period and upon which sufficient public money or labor is expended “for such period” to keep it in substantial repair and condition for public use is a legally established road, though public money and labor have not been expended each and every year during such period.</p>

<p>Appeal from Lawrence County Circuit Court. — Hon. I. V. McPherson, Special Judge.</p> <p>(1) The laws of Congress regulating interstate shipments control over state laws on the same subject. Potter v. Railroad, 187 Mo. App. 56; Grain Co. v. Railroad, 177 Mo. App. 194; Hamilton v. Railroad, 177 Mo. App. 151; Railroad v. Hooker, 233 U. S. 109, 58 L. Ed. 875; Railroad v. Hefley, 158 U. S. 98, 39 L. Ed. 910. (2) The freight rate to be paid on an interstate shipment is controlled by the rate filed with the Interstate Commerce Commission, even though not posted in the station and even though erroneously quoted by the agent to the shipper and to the shipper’s subsequent loss. Railroad v. Maxwell, 237 U. S. 94, 59 L. Ed. 853; Railroad v. Elevator Co., 226 U. S. 441, 57 L. Ed. 290; Railroad v. Carl, 227 U. S. 652, 57 L. Ed. 688; Railroad v. Mugg, 202 U. S. 242, 50 L. Ed. 1011; Railroad v. Hooker, 233 U. S. 110, 58 L. Ed. 875; Berwine Co. v. Railroad, 235 U. S. 371, 59 L. Ed. 275; Sloop v. Delano, 182 Mo. App. 299; Railroad v. Cisco Oil Mill, 204 IT. S. 449, 51 L. Ed. 562; Bush v. Driller Co., 199 S. W. 599 (Mo. App.); Burén v. So. Pac. R., 26 I. C. C. 332; Portland Co. v. Riailroad, 251 Fed. 33. (3) The lawful rate is that which the carrier must exact and that which the shipper must pay. The shipper’s knowledge of the lawful rate is conclusively presumed, and the carrier may not he required' to surrender the goods carried upon the payment of the rate paid, if that was less than the lawful rate, until the full legal rate has been paid. Railroad v. Maxwell, 237 U. S. 94, 59 R. Ed. 853; Railroad v. Carl, 227 U. S. 652, 57 R. Ed. 688; Railroad v. Mugg, 202 U. S. 242, 50 R. Ed. 1011; Railroad v. Hooker, 233 U. S. 110, 58 R. Ed. 875; Dunne v. Railroad, 166 Mo. App. 376; Sloop v. Delane, 182 Mo. App. 299; MeFadden v. Railroad, 241 Fed. 565; Follmer v. Railroad, 211. C. C. 617. Railroad v. Hooker, 233 U. S. 110, 58 R. Ed. 875; Dayton Coal Co. v. Railroad, 239 U. S. 446, 60 R. Ed. 375; Berwine Co. v. Railroad, 235 U. S. 371, 59 R. Ed. 275; Railroad v. Elevator Co., 226 U. S. 441, 57 R. Ed.. 290; Railroad v. Cisco Oil Mill, 204 U. S. 449, 51 R. Ed. 562; United States v. Miller, 223 U. S. 509, 56 R. Ed. 568 ; Wickwire Co. v. Railroad, 181 Fed. 319; Columbus Iron Co. v. Railroad, 178 Fed. 263; Railroad v. Feintuch, 191 Fed. 485; Bush v. Keystone Co., 199 S. W. 599, (Mo. App.); Franke Grain Co. v. 111. C. R. Co., 27 I. C. C. 625; Burns v. So. Pac. R., 26 I. C. C. 332; Follmer v. Railroad, 211. C. C. 617; Spiegle Co. v. Railway, 34 I. C. C. 448; Portland Co. v. Railroad, 251 Fed. 1. c. 34.</p> <p>(1) The tariff once established cannot be changed “except after thirty days’ notice to the commission and to the public,” published in same manner as original tariff, which must be promulgated. Interstate Commerce act, sec. 6, par. 3, U. S. statutes annotated, vol. 3. (a) “Promulgate” means to make known — it means that it shall be brought to the attention of those affected by it; that is, such publicity as will cause them to take notice of it. Wooden v. Western New York R. R. Co., 18 N. Y. Supp. 768. (b) “And from all the provisions on the subject, it is evident that the publication intended consists in ‘promulgating’ and distributing the tariff in printed form preparatory to putting it in affect. U. S. v. Miller, 223 U. S. Repts. 599 to 604-and nearly all cases cited by appellant. Sec. 192, p. 54, conference rulings, Interstate Commerce Com. (See also rule No. 231, pp. 76, 77 of ruling); See. 8, Interstate Com. Act, vol. 3, U. S. statutes annotated and authorities cited thereunder, Railroad v. Maxwell, 237 U. S. 94, and sec. 9, Inter. Com. Act.</p>

— Hon. Sterling H. McCarty, Judge. (1) When the court gave instruction No. 2, for the defendant, he correctly declared the law on the burning of the second stack of straw; but when he refused the plaintiffs instruction I or “A,” he left the jury to guess and grope in the dark as to the other two stacks, in fact entirely misinstructed; refusing a proper instruction asked by the plaintiff. Pepper v. Railroad, 98 Mo. App. 291; Knapp v. Kelly, 153 Mo.

<p>Appeal from Mississippi County Circuit Court. — Ho». Frank Kelly, Judge.</p> <p>(1) The court erred in sustaining objections to the testimony of defendant, including the testimony tending to show his inexperience with, and lack of knowledge of tractors. Defendant’s answer alleged that the conduct of plaintiff constituted fraud, and all evidence tending to show what the agreement really was and the contemporaneous statement was admissible, 17 Cyc. 687 (B) and 701 (H); Stone v. Barrett, 34 Mo. App. 15; 13 C. J. 396 (sec. 306). (2) If a thing is sold under warranty and will not do the work it was warranted to do, the purchaser can recover. Machine Company v. Gasperson, 168 Mo. App. 558, 1. c. 574-575; Brown v. Weldon, 94 Mo. 564; Compton v. Parsons, 76 Mo. 455; Keystone Imp. Co. v. Leonard, 40 Mo. 477; 1 Beach on Corporations (1 Ed.), see. 261.</p> <p>(1) Appellant failed to give the respondent notice according to the terms of the contract, .and, therefore, was not entitled to show a failure of warranty. Nicholas, Shepherd & Company v. Rhoadmann, 112 Mo. App. 299; Machine Company v. Wells, 182 Mo. App. 50; Nicholas, Shepherd & Company v. Larkin, 79 Mo. App. 264. (2) The special contract of warranty imposing conditions precedent took the place of a like or incon-. sistent implied warranty, and appellant could not plead and prove failure of the implied warranties and thus escape the performance of conditions precedent contained in the written contract. Boyer v. Neal, 50 Mo. App. 26-35; Wood Machinery Company v. Bobbst, 56 Mo. App. 427; Machine Company v. Gasperson, 158 Mo. App. 571. (3) The written contract is conclusively presumed to merge all prior negotiations and to express the final agreement of the parties; therefore, all of the evidence offered by the appellant in support of the third paragraph of his amended answer was properly excluded. Crim v. Crim, 162 Mo. 544; Bank v. Wells, 98 Mo. App. 573; Bank v. Birsch, 154 Mo. App. 631; Tracy v. Union Iron Works Company, 104 Mo. 193; Union Breeders’ Company v. Wright, 134 Mo. App. 717; Bradford v. Wright, 145 Mo. App. 623; Zeller v. Ransom, 140 Mo. App. 220.</p>

<p>1. INJUNCTION: Trespasser Excluding Owner of Property May be Enjoined. Where an owner of an electric light plant is in possession, and his employee and. agent has charge of, and is operating the plant, and such employee, who is insolvent, repudiates the agreement under which the plant is managed for C e owner, and assumes absolute control, excluding the owner from possession, and proceeds to operate the plant on his own account, injunction will lie; such employee being a trespasser from the time he assumed control.</p> <p>2. -: Evidence Supporting Finding that Defendant, Excluding Owner of Electric Light Plant, had no Interest Therein. In suit to enjoin plaintiff’s agent operating electric light plant for plaintiff under an agreement, from assuming control and attempting to exclude plaintiff from possession, evidence held to support a finding that defendant had no' interest in the plant.</p>

— Hon. Orín Patterson, Judge. (1) The certificate of insurance sued on is a contract of indemnity against loss from liability and there is no oblication on the part of the defendant to pay the plaintiff until the plaintiff has paid the amount of a final judgment in cash, after a trial of the issues on the merits, as the contract of insurance requires. Conquer- or Zinc Co. v. Insurance Co., 152 Mo. App. 332, 338; American Insurance Co. v. Fordyce, 54 Am.

— Hon. B. G. TJiurmcm, Judge. (1) The word “surgeon” as used in its plain, ordinary sense does not mean a veterinarian, as ordinarily understood when an average person hears the word, and it is in that sense it must he understood in the contract. Goode v. St. Louis, 113 Mo. 270-1; Richardson v. C. & A.. Ry., 62 Mo. App. 1; Lovelace v. T. P. A., 126 Mo.

— Hon. Orin Patterson, Judge. (1) Notice that the motion for attorney’s fee and costs would be filed and taken up in this cause was waived by the plaintiffs in the injunction ease and against said motion by their appearance and filing an affidavit for change of venue and appearing and trying the cause. The court had jurisdiction over the persons and over the subject matter of the action. Baisley v. Baisley, 113 Mo. 551; Sutliff v. Montgomery, 115 Mo. App. 592,'596.

— Hon. Sterling H. McCarty, Judge. (1) The plaintiff never at any time produced a purchaser ready, willing, and able to buy the land upon the terms and conditions authorized by the defendant, as above pointed out, and the trial court should therefore have instructed the jury to return a verdict for the defendant. Harwood v. Triplett, 34 Mo. App. 273; Young v. Ruhwedel, 119 Mo. App. 281; McCormick v. Obanion, 168 Mo. 614; Grelatt v. Ridge, 117 Mo. 553.

<p>Appeal from Circuit Court of Jasper Couuty. — Eon. J. D. Perhins, Judge.</p>

<p>Appeal from Greene Circuit Court! — Eon. Guy D. Kirby, Judge.</p>

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

<p>1. SALES: No Implied Warranty That Hogs Intended for Food are Free from Disease. In a sale of hogs, though it is known that they are ultimately intended for human food, there is no implied warranty that they are free from disease which would render them unfit for food.</p> <p>2. -: Opinion that Infected Hog is Healthy, Not Fraud in Absence of Knowledge or Negligence. The expression of an opinion by the seller of hogs that they are sound and healthy is not fraud ' which vitiates the sale, though they were infected with hog cholera, in the absence of knowledge of that fact by the seller or negligence in ascertaining the truth.</p> <p>3. -: Expressed Opinion Hogs Sold Were All Right Not “Warranty” as a Matter of Law. A “warranty” is a contract whereby the warrantor agrees to make good the loss in respect to the matter warranted, and, like all contracts, requires a meeting of the minds, so that it was error to instruct that, if the seller before - delivery stated that the hogs sold were all right, when in fact they were infected with disease, they should find for the buyer: for whether the statement was intended as a warranty was for the jury.</p> <p>4. ACTION: Statute Forbidding Sale of Infected Hogs May be Basis of Civil Action. Laws 1917, page 133, making it unlawful to sell swine with hog cholera, though a criminal statute, may be made the basis of a civil action for damages.</p> <p>5. SALES: Statute Forbidding Sale of Infected Hogs not Applicable in Absence of Knowledge or Negligence. Laws 1917, page 133, making it unlawful to sell any swine infected with hog cholera, does not apply to a sale of hogs infected in fact, if the seller had no knowledge of that fact, and he was not negligent.</p> <p>6. —■-: Seller Cannot Claim Ignorance of Disease of Hogs Which Reasonable Care Would Disclose. A seller of hogs cannot escape liability under Laws 1917, page 133, if the hogs were infected with cholera, on plea of ignorance of that fact, if reasonable care and caution on his part would have disclosed the fact.</p> <p>7. APPEAL AND ERROR: Appellate Court cannot Find Fact Supported by Evidence, which Instruction Erroneously Stated was Un- • necessary to Verdict. Where the trial court erroneously instructed that plaintiff could recover the money paid for hogs infected with cholera from the seller, without requiring a finding of knowledge or negligence by the seller, the appellate court cannot affirm the judgment, though there was evidence to support a finding of knowledge, or means of knowledge, of the disease.</p>

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

<p>1. TROVER AND CONVERSION: Allegation as to Possession Necessary. In action for conversion, plaintiff must allege that he was in possession, or entitled to possession, of the property at the time of the alleged conversion.</p> <p>2. JUSTICES OF THE PEACE: Defective Pleading Can he Amended on Appeal to Circuit Court. In action for conversion, where statement filed in the justice court was defective for failure to allege that plaintiff was in possession or entitled to possession at the time of the alleged conversion, plaintiff could amend pleading by supplying such omission on appeal to the circuit court.</p> <p>3. CHATTEL MORTGAGES: Feed Bill a Lien on Animals Only if Possession was Necessary to Protect Mortgagee. Feed bill paid by mortgagee to get possession of mortgaged animals from third person hired by mortgagor to care for them was not a lien on animals where they were not depreciating in value so as to justify mortgagee in declaring a default, but, if they were depreciating in value,, to such an extent that possession by mortgagee would have been necessary to protect his rights, the amount so paid would become a part of secured debt or be of equal dignity therewith and be a lien on the property.</p> <p>4. ;-: Mortgagor Did Not “Dispose of” Animals by Hiring Third Person to Take Care of Them. Mortgagor by hiring a person to keep and care for mortgaged animals .did not “dispose of” them within mortgage providing that mortgagor shall not “dispose of” ' them and entitling mortgagee to declare debt due and take possession if mortgagor disposes thereof.</p> <p>5. -: Meaning of “Dispose of” in Chattel Mortgage Stated. In mortgage on animals, providing that mortgagor shall not “dispose of” them, the word “dispose” has a larger meaning than selling; selling being only one of the methods of disposing of property.</p> <p>O. -: Mortgagee Taking Possession on Default Must Foreclose Within Reasonable Time. The right to take possession given mortgagee on default by mortgagor is given him merely to enable him to foreclose mortage, which he must do in good faith within a reasonable timé.</p>

<p>Appeal from the Circuit Court of the City of St. Louis.— IIon. William T. Jones, Judge.</p> <p>(1) Plaintiff’s motion to dismiss defendant’s appeal should have been overruled. Hugh Spangler v. The Etidgeley Protective Association, 172 Mo. App. 255; Donahue v. Southwestern Surety Company, 202 Southwestern p. 272. (2;) The defendant had twenty days within which to appeal from the decision of the justice. Hugh Spangler v. The Ridgeley Protective Association, 172 Mo. App. 2:55; Donahue v. Southwestern Surety Company, 202 Southwestern, p. 272. (3) Service can only be obtained on a non-resident insurance company by serving the State Insurance Commissioner at Jefferson City. Section 7042, R. S. 1909; Baile v. Equitable Fire Insurance Company, 68 Mo. 617; State ex rel. Grimm, 239 Mo. 135-166;</p> <p>(1) Said W. D. Moore, Justice of the Peace of the City of St. Louis, on the 6th day of July, 1916, lost all jurisdiction over said judgment except issuing an execution, as the ten full days for such appeal had expired on said 6th day of July, 1916. Sec. 7568, R. S. 1909; Sec. 375, Sears on Missouri Corporation; Rogers v. Nat. Council Junior, 172 Mo. App. 719; Meyer v. Insurance Company, 184 Mo. 481; Young v. Niles Scott Co., 122 Mo. App. 392; Spangler v. Protective Assn., 172 Mo. App. 255. (2) Defendant is a foreign corporation, duly licensed to do business in the State of Missouri, maintained and operated offices, agents and owning physical property in the City of St. Louis, Missouri, and was, on the 26th day of June, 1916, and on July 6,1916, a resident of the City of St. Louis, Missouri. Sec. 7568, R. S. 1909; Sec. 375, Sears on Missouri Corporation; Rogers'v. Nat. Council Junior, 172 Mo. App. 719; Meyer v. Insurance Co., 184 Mo. 481; Young v. Niles Scott Co., 122 Mo. App. 392; Spangler v. Protective Assn., 172 Mo. App. 255. Defendant was duly served by the Sheriff of Cole County upon the State Insurance Commissioner and process was duly had. , . ,</p>

<p>Appeal from the Circuit Court of Knox County. — Hon. James A. Cooley, Judge.</p> <p>(1) The warranty deed, from Roush and wife to Cecil Eunk and Mary J. Funk his wife, created a tenancy by entirety in plaintiff and the defendant, Cecil Funk. Gilson v. Zimmerman, 12 Mo. 386; Garner v. Jones, 52 Mo. 68; Bains v. Bullock, et al. 129 Mo. 117, (31 S. W. 342); Hume v. Hopkins, 140 Mo. 65, 41 S. W. 784; Frost v. Frost, 200 Mo. 497, 98 S. W. 527; Holmes v. Kansas City, 209 Mo. 523, 108 S. W. 9, 1134; Moss v. Ardrey, 260 Mo. 595, 169 S. W. 8. (2) The granting of the divorce made the tenants by entirety tenants'in common and the lands thus held were subject to partition. Russell v. Russell et al., 122 Mo. 235, 26 S. W. 677; Joerger v. Joerger, 193 Mo. 133, 91 S. W. 918. (3) The husband cannot in equity, attack or change such a deed as was made in this case. There is no showing of fraud on the part of plaintiff in the making or procuring of the deed and it is only upon the ground of fraud that such conveyance can be attacked or altered. Moss v. Ardrey, 260 Mo. 595,169 S. W. 10. (4) In communities where the commuity property doctrine prevails, (which doctrine bears a very close resemblance to our tenancy by entirety) the spouse upon divorce, where the community property rights are not adjusted in the divorce proceedings, become tenants in common as to such property and neither party forfeits his or her interest therein. 9 R. O. L. Sec. 319; citing Garrozi v. Dastas, 204 U. S. 64; 27 S. Ct. 224, 51 U. S. (L. Ed.) 369. (5) Where (he husband buys property and has the title placed in the name of the wife the general rule is and the presumption is that it was intended as a provision for her. Siling v. Hendrickson, 193 Mo. 365, 92 S. W. 108; Couch et al. v. Harp et al., 201 Mo. 457, 100 S. W. 10-11; Perry on Trusts, (6 Ed.), par. 143-144. In this case' evidence shows that the defendant, Cecil Punk, conducted the purchase of the land from Roush. No fraud is pleaded or proven in relation to the making of the deed to defendant, Cecil and his wife Mary J., plaintiff herein. The deed is presumptive evidence that no resulting trust was intended, hut that it was intended as a provision for the wife. In the absence of fraud a tenancy by entirety was created. Darrier v. Darrier, 58 Mo. 222; Couch v. Harp, 201 Mo. 464, 100 S. W. 11; Kinzey v. Kinzey, 115 Mo. 496, 22 S. W. 497.</p>

<p>Appeal from the Circuit Court of the City of St. Louis.— Eon. Rhodes E. Gave, Judge.</p> <p>(1) The court erred in refusing appellant a jury trial. The equitable questions in the case had been eliminated and there was no dispute as to the amount of money collected because, forsooth, appellant’s books showed it. The only question was the right to off-set this against the claim of appellant by virtue of his oral contract so that appellant was entitled under the issues to a trial by jury. Sec. 1967, R. S. 1909; Lee v. Conran, 213 Mo. 404; Thompson v. Stillwell, 258 Mo. 89; Kansas City v. Smith, 238 Mo. 323; Taylor v. Brown, 92 Ohio St. 287. (2) The court erred in refusing to permit appellant to introduce evidence showing that an oral contract was entered into, the terms and conditions thereof; ■that the alleged written contract, Plaintiff’s Exhibit A, was signed by him by request for the purpose only of showing to other State agents; that it was not to be the contract between the parties; was not to be a contract; was not to be effective, binding or controlling upon either party in any manner at any time; and that respondent subsequently acted upon the terms and conditions in all respects of the alleged oral contract. Because the rule is that parol evidence is admissible to show that the instrument is altogéther void; that it never had any legal existence or binding force; that the minds of the parties never met; that it was not intended as the contract; that the real contract was an oral one and that the written instrument was executed for the purpose of showing to other state superintendents. 1 G-reenleaf on Evidence, sec. 284; 2 Page on Contracts, sec. 349 ; Jones on Evidence’ (2 Ed.)-, see. 471;; 17 Cyc. 642 and 694. Parol evidence is admissible to show that a written instnxment was never to be performed but was a mere sham executed for the purpose of influencing the conduct of a third person. Coffman v. Malone, 98 Neb. 819 ; So. St..By. Co. v. Met. Shoe Mfg. Co., 91 Md. 61; Col. P'k. Estates v. Massart, 112 Md. 648 ; Bobinson v. Nessel, 86 111. App. 212; Waid v. Hobson, 17 Colo. App. 54; Natl. Bk. of Ken-nett Sq. v. Shaw, 218 Pa. 612; Birley & Sons v. Dodson, 107 Md. 229; Lepley v. Anderson, 142 Wis. 668. The evidence is admissible whether the proceeding be at law or in equity . Oak Badge Co. v. Toole, 82 N. J. Eq. 451; O’Brien v. Paterson Brew. Co., 69 N. J. Eq. 117; Ward v. Union Trust Co. of N. Y., 152 N. Y. S 237; Burroughs Add. Mach. Co. v. Yan Deusen, 138 N. Y. S. 839; Alexander v. Bighter, 240 Pa. 22; Cobb v. O’Neal, 2 Sneed, 438; Preston v. Breedlove, 36 Tex. 96; Weaver v. Iiotze, 27 Ark. 510; Duncan v. Sheehan, 13 Ky. 780. It is proper to show an original parol contract between the parties by which their contractual rights are to be detemined in spite of an alleged written contract. Trice v. Yoeman, 8 Kan. App. 537; Bittenhouse-Winterson Auto Co. v. Kissner, 129 Md. 102; Grierson v. Mason, 60 N. Y. 394; Col. Jewelry Co. v. Brown, 38 Okla. 44; 131 Pac. 1077; Bl. Globe & Lamp Co. v. Kern Incad. Light Co., 67 N. J. L. 279; Grebe v. Swords, 28 N. D. 330; Parrar v. Holt, 178 S. W. 618; Natl. Novelty Co. v. Duncan, 182 S. W. 888; Burke v. Dunlaney, 153 U. S. 228; Storey v. Storey, 214 Fed. 973; Davis v. Sterns et al., 85 Neb. 121; Corbin v. Sistrunk, 19 Ala. 203; Bowman v. Torr, 3 Iowa, 571; Furness-With Co. v. Fahey, 127 Md. 333; Earle v. Bice, 111 Mass. 17; Driscoll v. Colby, 145 N. Y. S. 681; Case Threshing Mach. Co. v. Barnes, 19 Am. & Eng. Ann. Cases, 246; 133 Ky. 321. Before the rule excluding parol testimony can be applied, it must first be determined a legal contract actually exists. Black v. W. St. L. & P. By. Co., Ill 111. 351; Knight v. Walker Brick Co., 23 D. C. App. 519; Brewster v. Beel, 74 Iowa, 506; Humphrey v. Timken Carriage Co., et al., 12 Okla. 413; O’Leary v. McDonough, 23 N. Y. S. 665; Gregg v. (xroesheek, 11 Utah, 310; Cameron v. Estabrooks, 73 Yt. 73; Webster v. Smith, 72 Yt. 12; Atwood v. Grillett & Denoyers, 2 Doug. 206 ; Chic. Bldg. & Mfg. Oo. v. Butler, 139 G-a. 816; Brenhecke Bros. v. Heald, 107 Iowa, 376. The doctrine of the exception to the rule seems to prevail in Missouri to the effect that facts showing that a writing never acquired original vitality as a contract are admissible in evidence. Barrett v. Davis, 104 Mo. '549; Vardeman v. Bruns, 199 S. W. 710. Upon the same theory showing the purpose of delivering a deed is proper. Poplin v. Brown, 200 Mo. App. 255; Johnson v. W. O. W., 199 Mo. App. 98; Bobb v. Wolff, 148 Mo. 335; Brightwell v. McAfee, 249 Mo. 562; Burke v. Murphy, 275 Mo. 397; Huth v. Carondelet M. & D. D. Co., 56 Mo. 202; McKinney v. Hawkins, 215 S. W. 250; Denning Inv. Co. v. Echols, 183 S. W. 165; Bowers v. Bell, 193 Mo. App. 210. The same as to the delivery of bills and notes. Semms & Co. v. Barrett, 190 S. W. 394; Chapin v. Cherry, 243 Mo. 375. Parol evidence is admissible to show that consideration was other than contained in written instrument. Hockaday v. Warmack, 182 S. W. 263. Bare possession of document cannot be made a substitute for delivery. Huey v. Scott, 65 Mo. 689; Scott v. Scott, 95 Mo. 300. Courts will follow interpretation of contract placed thereon by parties. Coleman v. Ford Motor Co., 193 S. W. 866. Letters are admissible to show understanding of parties at time. Brightwell v. McAfee, 249 Mo. 562; Ireland v. Spickard, 95 Mo. Appp. 53. Missouri courts seem to follow the rule when the case is squarely before them for determination that parol evidence is admissible to avoid wrongful satisfaction of record. Joerdens v. Schrimpf, 77 Mo. 383. (3) The court refused to allow any damages because, as he stated, they were speculative and indefinite. This is no ground for a denial of same. Young v. Tilley, 190 S. W. 95. (4) The court refused to allow appellant five per cent commission on the amount collected amounting to about $165.68; also in failing to allow the six per cent discoiint allowed for advance judgments as provided in plaintiff’s Exhibit “C” Section 491. This was error.</p> <p>(1) Respondent was entitled to maintain this suit in equity for an accounting for, and preservation and recovery of the trust funds admittedly collected and wrongfully withheld by respondent’s section secretary, Dalzell, and appellant was not entitled to a jury trial, (a) This is conceded by appellant, no point being made in his brief against the right of respondent in this regard. The law is well settled that an agent or trustee must account to his principal and cestui que trust for trust funds collected and withheld from the latter. Johnson v. Blell, 61 Mo. App. 37; Bobb v.Bobb, 89 Mo. 411,1. c. 423; Ely v. Coontz, 167 Mo. 371; Polk v. Wind, 124 Mo. App. 577. (b) “Where the aid of a court of equity has been properly invoked to obtain an injunction for the preservation of plaintiff’s right, jurisdiction will be retained to completely enforce the right. ’ ’ 16 Cyc. 117; Davis v. Sullivan, 141 Mass. 76; Cocke v. Trotter, 10 Yerg. (Tenn.) 213; Leighton v. Young, 52 Fed. 439 (C. C. A.), (c) Jurisdiction in equity must be determined on the facts shown on face of the pleadings and jurisdiction cannot be defeated by subsequent events or proceedings in the case. Sprague v. Carroll, 188 S. Wi. 63; Johnson v. Blell, 61 Mo. App. 37; Martin v. Jamieson, 39 111. App. 248; Crawford v. Sommers, 3 J. J. Marsh (Ky.) 300; Case against Minot, 115 Mass. 577, 22 L. R. A. 536; Hawley v. Cramer, 4 Cow. (N. Y.) 717; King v. Baldwin, 17 Johns, (N.Y.) 384; Plamlin v. Hamlin, 56 N. C. 191; Masson’s Appeal, 70 Pa. St. 26; Fraser v. McClenaghan, 2 Strobh. Eq. (S. C.) 227; Grubb v. Starkey, 98 Ya. 831; Bush v. Jones, 184 IT. S. 598, 46 L. Ed. 707; Kirk v. Du Bois, 28 Fed. 460; Hoborst v. Howard, 37 Fed. 97; 16 Cyc. 113. (d) When a court in equity has once acquired jurisdiction in a controversy, it will retain jurisdiction for all purposes and will administer complete relief. Quest v. Johnson, 58 Mo. App. 54; Pindy v. Gault, 19 Mo. App. 191, 202; Kemp v. Poster, -22 Mo. App. 643,1. c. 649; Johnson v.Blell, 61 Mo. App. 37. (e) The law is too well settled to need citation of authority that the defendant is not entitled to a jury trial in a suit in equity. Sprague v. Carroll, 188 S. W. 63,1. c. 65; Johnson v.Blell, 61 Mo. App. 37; Ely v. Coontz, 167 Mo. 371. (f) The law is equally as well settled that the defendant cannot convert a suit in equity into a lawsuit by filing a counterclaim in the equity suit and that if he injects his counterclaim into the suit, he is not entitled to a jury trial. Sprague v. Carroll, 188 S. W. 63, 1. c. 65; (g) The trial court rightfully held that there was no issue to submit to a jury, even if this had been a law case, because there was complete failure of proof by appellant of his alleged counterclaim; hence, there was nothing to go to a jury for it to pass upon. (2) Dalzell having failed to account and pay over to respondent the trust funds collected by him, as section secretary, is not entitled to any commissios. (a) Under supreme statute 450, no commission is due until the funds are actually remitted to the Board. Dalzell refused to remit and claimed the funds himself, (b) Under the law a trustee, who commits a breach of trust by withholding trust funds and compelling the beneficiary to sue to recover same, is not entitled to commissions. Polk v. Wind, 124 Mo. App. 577; Newton v. Rebenack, 9Ó Mo. App. 650, 676; Kemp v. Poster, 22 Mo. Mo. App. 643,1. e. 649; Harrison v. Craven, 188 Mo. 590, 610; Reilly v. Cullen, 101 Mo. App. 32, 39. (3) There was a total failure of proof by appellant of the alleged oral contract of January 2:7, 1916, which Dalzell claims was entered into between him and respondent, covering his employment as State Superintendent of respondent, (a) The proof showed, and it is conceded by Dalzell, that he signed the usual printed contract authorized by the Board of Control on January 28, 1916, the day after he claimed to have made the oral contract covering the identical subject matter. The printed'contract provides that “The contract hereby expressed, when executed, shall supercede all other agreements and contracts heretofore made.” Conversations and negotiations prior to the making of a written contract are merged into the writing and no snch conversations and negotiations can be admitted to add to, vary or detract from the terms of such written contract. Minnesota Co. v. G-rant, 81 Mo. App. 255; Norwich v. Buckhalter, 83 Mo. App. 504; Davis v. Scovern, 130 Mo. 303; Stringer v. Mfg. Co., 177 Mo. App. 234, 242. Dalzell is bound by his agreement which he signed and is conclusively presumed to have included the whole engagement and extent and manner of undertaking. Halferty v. Scearce, 135 Mo. 428, 433; Boggs v. Pac. Co., 171 Mo. 282; Standard Mfg. Co. v. Hudson, 113 Mo. App. 344, 349; Neville v. Hughes, 104 Mo. App. 455. (b) Dalzell and his counsel admitted that the alleged oral contract of January 27, 1916, was not made with the Board of Control, and did not receive the approval of the Board of Control. The alleged oral contract was claimed by Dalzell to have been made with certain individual members of the Board, or the Field Committee, none of whom had any authority to bind the Board of Control or the Insurance Department, (c). Even if the letters passing between Dalzell and the individual members of the Board of Control are admissible, these letters (which are relied on by Dalzell to prove the existence of the alleged oral contract of January 27, 1916) showed that no such oral contract was entered into, (d) Dalzell claimed he signed the written contract of January 28, 1916, to deceive the other superintendants and lead them to believe that the written contract was the real contract he entered into with the order, whereas he intended to insist that the real contract was an alleged oral one which he claimed he made with individual members of the Board. This is unconscionable conduct. He who comes into equity must come with clean hands. Equity will refuse to aid him in this attempted fraud on his fellow members and brothers of the order. ‘‘Sham” contracts are not approved by Missouri courts. 16 Cyc. 144, 145; Morrison v. Juden, 145 Mo. 2821; Ward v. Hartley, 178 Mo. 135; Feld v. Roanoke Inv. Co., 123 Mo. 603; Ryan v. Miller, 236 Mo. 496; Stillwell v. Bell, 248 Mo. 61; Prim v. "White, 162 Mo. App. ■ 594; Modern Club v. Stewart, 242 Mo. 421; Gilmore v. Thomas, 252 Mo. 147; Derry v. Fielder, 216 Mo. 176. Dalzell cannot ask that the contract of January 28th be set aside, because he is not entitled to the assistance of a court of equity, as he admits that he is a party to the alleged sham and nefarious contract from which he desires to' be relieved. Feld v. Roanoke Inv. Co., 123 Mo. 603; Creamer v. Bivert, 214 Mo. 473. The application of the maxim that he who comes into equity must with clean hand's does not depend upon the averments of the pleadings or the wish of counsel, but may be invoked ex mero motu by the court. Creamer v. Bivert, 214 Mo. 473, 485; Hantz v. Heilman, 228 Mo. 655. (e) Appellant could not offset his. alleged independent and individual claim growing out of a separate matter against trust funds which he has collected and wrongfully withheld, either under the Constitution and Supreme Statutes of the Knights of Pythias, or under the law. 25 Am. & Eng. Ency. (2 Ed.), 533; Bank v. Barnum Wire Works, 58 Mich. 124; Peters v. Bank, 86 Tenn. 224; Cook County Bank v. U. S., 107 U. S. 445, 27 L. Ed. 537; Abbott v. Foote, 146 Mass. 334; Togg v. Bowman, 99 Pa. St. 376; Libby v. Hopkins, 104 U. S. 303; 21 Am. & Eng. Ency. (2 Ed.), 911; Greenville Gas Co. v. Reis, 54 Oh. St. 271; Emporium Co. v. Emrie, 54 111. 345; Russell v. Church, 65 Pa. St. 9. (4) The rights and powers of the officers and members of lodges superior and subordinate are regulated by their constitution and by-laws which constitute the contract of the members with each other and by the provisions of which they undertake to be bound. Bacon on Life and Accident Insurance (4 Ed.), sec. 94; Davidson v. K. of P., 22 Mo. App. 263; Smith v. Mystic Workers, 196 S. W. 62 (Mo. App.); 'Tuite v. Supreme Forest, 187 S. W. 137,193 Mo. App. 619.</p>

Habeas Corpus. (1) Full faith and credence should be given to the decree of the Massachusetts court, entered December 12, 1919. 9 R. C. L, Divorce and Separation, sec. 293, page 477; 19 C. J. Divorce, page 366; 2 Bishop on Marriage, Divorce and Separation, sec. 1189, page 463; Wilson v. Elliott, 96 Tex., 472, 97 Am. St. Rep. 928; Milner v. Gatlin, 139 Ga. 109; Hardin v. Hardin, 168 Ind. 352; Milner v. Gatlin, 143 Ga. 816; State ex rel. Nipp v. Dist.

<p>Life Insurance Unconditional, NT on-forfeitable: Paid-up Policy. The statute (Section 6946 Revised Statutes 1909), provides that where there has been three annual payments of premiums on a life insurance policy such policy shall not be forfeited for non-payment of succeeding premiums; but that such policy shall be commuted by taking the net value of the policy at time of default and after certain deductions, using it as a single premium for temporary insurance for the full amount of the policy. Section 4649 of such statute provides that if the policy shall contain a provision for the unconditional commutation of the policy for non-forfeitable paid-up insurance the terms of section 6946 shall not apply. A policy only provided for “a paid up policy,” omitting the statute requirement of unconditional non-forfeitable paid-up policy. It was held that the policy was not such as required by section 6949 and that therefore section 6946 applied.</p>

<p>1. GARNISHMENT: Denial of Garnishee’s Answer Should State Cause of Action, and a Reply Should be Served. The denial of garnishee’s answer being in law the first pleading, should state facts constituting judgment creditor’s cause of action, and a mere statement that garnishee owes execution defendant, or did when process was < served, is too. general, and a reply which corresponds to the answer in ordinary cases should have been filed (Rev. St. 1909, sec. 2431).</p> <p>2. -: Interplea Statute Directory Only, and Garnishee May Defend that Fund Belongs to the Third Party. Revised Statutes 1909, section 2439, providing that garnishee may file an interplea fob his own protection where the fund is claimed by more than one party, is directory, and not mandatory, and he may take on himself the defense that the fund rightly belongs to third party.</p> <p>3. APPEAL AND ERROR: Appellant Not Permitted to Change Theory of Cause as Shown by Pleadings. While garnishee’s reply should have stated facts relative to defendant’s order assigning fund to one other than execution creditor, yet where neither party observed the rules of good pleading, and the garnishee was allowed to prove that the fund in his hands was not the property of execution defendant by showing without objection that it had been previously assigned, it is too late to question such evidence and thus change the theory of the case on appeal.</p> <p>4. GARNISHMENT: Sufficiency of Prior Assignment to Defeat Same. When a debtor by means of a written order, directs a third party to pay to one creditor a fund in his hands due such debtor and the third party is willing to do so, such order acts as an assignment of the fund to such creditor and such assignment will prevail against a subsequent garnishment of tbe same fund by another creditor and this true though there has been no binding acceptance of such written order by the holder of the fund.</p> <p>5. ASSIGNMENTS; Garnishment: Creditor Cannot Assign Part of Fund Without Debtor’s Consent but Plaintiff in Garnishment Cannot Raise Objection. A creditor cannot assign a part of fund due him without the debtor’s consent, although he can assign the whole, but such question can be raised only by the debtor or holder of the fund, and not by the plaintiff in action against garnishee.</p> <p>6. -: Order Treated as Assignment Need Not be Accepted in Writing. An order upon the county given by execution debtor to a bank, served upon the county’s agent, held an assignment of funds in drawee’s hands and not a bill of exchange, under Revised Statutes 1909, sections 10096, 190099, so that the drawee was not required to accept in writing; the order having lost its character as a negotiable instrument on being declared and treated as assignment.</p>

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

Louis. —Hon. Granville Hogan, Judge. (1) Plaintiff made a prima-facie case by producing the policy, Plaintiff’s ' Exhibit “A,” and putting the same in evidence, and proof of death of the deceased, Lars Olson. And under defendant’s affirmative proof of suspension, forfeiture, if being a Fraternal Beneficial Society; the burden of proof was on it to establish these defenses by a preponderance of the evidence. Grooden v. M. W. A., 194 Mo.

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

— • Hon. L. B. Woodside, Judge. (1) The plaintiff must prove that he was employed in interstate commerce or in interstate traffic at the time of his injury, and a fáilure so to do denies him any right to recover under the Federal Employers Liability Act. Vaughn v. Railroad, 177 Mo. App. 165'; Miller v. Railroad, 180 Mo. App. 375.

— Hon G. H. Skinker, Judge. (1) The trial court erred in refusing to give defendant’s declaration No. 1 for the reason there had been a change of interest, title or possession of the hay insured prior to its destruction, contrary to the policy terms, and the insurance was thereby made void. Snyder v. Murdoch, 51 Mo. 175; Manning’ v. L. & L. & G. Ins. Co., 125.Mo. App. 456; Vancouver National Bank v. Law, Union & Crown Ins.

<p>Appeal from Circuit Court of Pulaski County. — Hon. L. B. Woodside, Judge.</p> <p>(1) To constitute a valid contract the minds of the parties must assent to the same thing at the same time. Green v. Cole, 103 Mo. 70, 76; Sutter v. Reeder, 149 Mo. 293, 310, 311; Gaus & Son v. Chicago Lbr. Co., 115 Ap. 116, 119; Batavia v. R. R., 126 Ap. 13, 15, 16. (a) This assent may be sljown in a variety of Avays. There can be no fixed rule. The court cannot say Avhat facts, or words, or acts of the parties Avill show an agreement between them. Each case must rest on its OAvn facts and the triers of the facts, not the court, must determine the question. Botkins v. McIntyre, 81 Mo. 557, 560; Bruner et al. v. Wheaton, 46 Mo. 363, 366. (2) The law is that when the ground upon which a motion for new trial is sustained is set out in the order, the Appellate Court will hold that the trial Court found against all other reasons urged in the motion for new trial and, if the ground set out is not sufficient, the burden is then placed upon the respondent to show some other error that made it mandatory upon the tfial Court to set the verdict aside. Bennett v. Met. St. Ry. Co., 10 S. W. 1050 (Mo. App.) Bradley v. Reppell, 133 Mo. 545; Cande'e v. R. R., 130 Mo. 142; Thiele v. Citizens Ry. Co., 140 Mo. 319; Haven v. Mo. Pac. R. R. 155 Mo. 216 ; Grain Co. v. R. R., 177 App. 194; State ex rel. v. Ellison, 266 Mo. 423, 432.</p> <p>(1) The granting of a new trial is discretionary with the trial court, and unless it clearly appears that this discretion is grossly abused, Appellate Court will not interfere. McWilliams v. R. R., 172 Mo. App. 1. c. 327; Kunzel v. Stevens, "155 Mo. 280, 1. c. 285; Bank v. Armstrong, 92 Mo. 265; McCullough v. Ins. Co., 113 Mo. 606, 1. c. 619; McKay v. Underwood, 47 Mo. 187; Corey v. Transit Co., 186 Mo. 2291. (2) A party in whose favor a new trial has been ordered may on his adversary’s appeal show that the order was correct upon any other grounds stated in his mortion for new trial, whether they were sustained by the trial court or not. To do this it is not necessary for him to either except to, or appeal from the order. Ittner v. Hughes, 133 Mo. 679; Bradley v. Reppel, 133 Mo. 545,1. e. 559; Emmons v. Quade, 176 Mo. 22; Dale & Bennett v. Mining Co., 110 Mo. App. 317; Colm & Grennon v. Ins. Co., 96 Mo. App. 315.</p>

— H (1) The grip was never infra hospitium. Innkeeper may exonerate himself from liability for loss of goods of his guest by showing that the guest has taken upon himself exclusively the control of his own goods. His liability is only coextensive with his custody and control, and his pledge of the integrity of his servants ; and the question of custody and control depends upon facts indicative of intention. Yance v. Throck- • morton, 5 Bush, 41, 96 Am.

— Hon. Grant Emerson, Judge. (1) Persons'who' for their own private gain or profit send a dangerous agency, electricity, out into the streets and alleys of the city are hound to use the utmost care in preventing the escape from the wires of the electrical current to the injury of others. G-eismann v. Mo.Edison Electric Co., 173 Mo. 678; Thompson on Negligence, (2 Ed.), 797.

<p>VENUE: Failure to Allow Time to Prepare Application for Change, Held Error. Where the court was insistent that a case should be tried at once and denied counsel’s application for a few minutes’ time to prepare an application for change of venue, stating that such change of venue would be denied, the court’s action was erroneous; defendant’s application for time being made as soon as possible after obtaining information from his client.</p>

— Hon. Frank Kelly, Judge. (1) Stipulations in life insurance policies exempting insurer from liability under certain conditions are always construed strictly against the insurer, since such policies are issued on printed forms prepared by experts at insurers’ instance, and insured has no voice in their preparation. Benham v. Ins. Co., 217 S. W. 462; Newman v. Ins. Co., 192 Mo. App. 159; Mitchell v. Ins. Co., 179 Mo. App. 1; Roseberry v. Ins. Co. 142 Mo.

<p>Appeal from Circuit Court of Pemiscot County. — Eon. Sterling E. McCarty, Judge.</p> <p>(1) Where a chattel mortgage is properly executed and recorded in another State according to the laws of such State, the same will held valid in this State against creditors and purchasers in good faith, unless the property mortgaged is removed into this State with the knowledge or consent of the mortgagee, or unless the transaction contravenes the settled law or policy of the forum. G. E. Geiser Mfg. Co. v. Todd, 204 S. W. 287; Atwater v. Brokerage Co., 147 Mo. App. 449. (2) It is the settled law of Missouri that usury destroys the lien of a chattel mortgage, and a suit for the possession of mortgaged property cannot he maintained in this State under a mortgage securing a note drawing ten per cent interest. R. S. 1909, see. 7184; Coleman v. Cole, 158 Mo. 253; Machine Co. v. Tomlin, 174 Mo. App. 512. (3) A mechanic has a lien for repair work on the vehicle repaired, except as against prior mortgages recorded in this State. Session Laws, 1915, p. 328, amended, Session Laws, 1917, p. 326. (4) The courts of this State will not enforce a contract made in another State when to do so would he injurious to a citizen of this State. Kerwin & Co. v. Doran, 29 Mo. App. 397; Thurston v. Rosenfield, 42 Mo. 474; Bryan v. Brisbin, 26 Mo. 423; 3 Current Law, p. 725, section 5; Snyder v. Yates, (Tenn.) 79 S. W. 796; Hughes v. Winkleman, 243 Mo. 92-3-4. (5) The courts of this State will not take judicial notice of a statute or decision of a sister State; hut the same must be both pleaded and proved. Ham v. Railroad, 149 Mo. App. 200; Stakebake v. Railroad, 185 S. W. 1166; Madden v. Railroad, 192 S. W.. 455; Thompson v. Railroad, 243 Mo. 349; Flato v. Mulhall, 72 Mo. 522.</p> <p>(1) Appellant misconceives the law as applied to the enforcement of alleged usurious interest contracts. Our statutes concerning usury, have no application to contracts made in another State. The notes and chattel mortgage in question were executed in Arkansas, and the parties and property were located there. So the provision for ten per cent interest on the notes can be enforced in this State. Trower Bros. Co. v. Hamilton, 179 Mo. 205. (2) At common law a note drawing ten per cent interest was not usurious. As there was no evidence of the statutory law of Arkansas on this point, it will be presumed that the common law prevails there. Coy v. Railroad, 186 Mo. App. 408. (3) Before a mechanic can have a lien for repair work, the person doing the work “shall obtain a written memorandum of the material furnished, or to be furnished, and signed by the owner of such vehicle.” Sec. 1, Laws 1915,-p. 328. (4) The provision of the statute (Sec. 3, as amended, Laws 1917, p. 327), to the effect that the lien shall not take precedence over or be superior to chattel mortgages on the property filed and recorded in accordance with the laws of this State, has no application to a case where the property is mortgaged while located in another State by the owner to a person, both of whom reside in such other State. In other words, our recording statute has no extra-territorial operation, and will not be construed to apply to transactions between. persons resident in another State, anda where the property is located, unless it is contemplated by the parties at the time of the execution of the mortgage that the property is to be removed into this State or unless the mortgagee consents to the removal thereof to this State. Smith v. Hutchings, 30 Mo. 380; Feurt v. Rowell, 62 Mo. 524; Bank v. Cassidy, 71 • Mo. App. 186; Trower Bros. Co. v. Hamilton, 179 Mo. 205; National Bank of Commerce v. Morris, 114 Mo. 255; Geiser Mfg. Co. v. Todd, 204 S. W. (Mo. App.) 287; 11 C. J., p. 424. (5) “The law presumes, until the contrary is shown, that every officer‘performs his duties. It also presumes that everyone, even though not an official, performs his engagements and duties, social as well as business.” Mc-Callister v. Ross, 155 Mo. 94; Hartwell v. Parks, 240 Mo. 537; Dudley v. Clark, 255 Mo. 588-589. (6) A ease will not be reversed because of technical errors, nor when it is apparent from the whole record that the result of another trial must be the same as .the previous trial. Sections 2082 and 2120, R. S. 1909; Ivy v. Yancey, 129 Mo. 501; Cross v. Gould, 131 Mo. App. 593; McDermott v. Claas, 104 Mo. 14; Bragg v. Street Railway, 192 Mo. 357; Conley v. Doyle, 50 Mo. 234.</p>

<p>1. MUNICIPAL CORPORATIONS: Statutes Authorizing Proceedings to Enforce Tax-hills for Improvements Strictly Construed. Statutes, authorizing proceedings for the enforcement of tax-bills for public improvements against adjoining property, which are proceedings in invitum, must be strictly followed.</p> <p>2. -: “Publication” of Improvement Resolution Pour Times in Semi-weekly Paper Sufficient. Under Revised Statutes 1909, section 9255, as re-enacted, by Laws 1911, page 340, requiring publication of a resolution for improvements in some newspaper for two consecutive insertions in a weekly paper, or for seven consecutive insertions in a daily paper, does not exclude publication in a paper other than a daily or weekly, and publication for four consecutive insertions in a paper published twice a week complies with the statute.</p> <p>3. -: Publication, Not Complying With Statute, Insufficient Though It Gives Equal Notice. The publication of a resolution for street improvements in a manner which does not comply with the statutory requirements is insufficient, even though the notice as published was as effective as if the publication had complied with the statute.</p> <p>4. -: Council’s Finding That Protest Against improvement Was Insufficient, Held Conclusive. Where a protest against a public improvement was considered by the council which heard evidence and decided that the petition was not signed by enough residents or property owners to prevent the improvement, and the only evidence offered in court in a suit on the tax-bill was an abstractor’s list of the property owners with which neither party agreed, the finding of the city council is conclusive.</p> <p>5. -: Owner of Tax-bill Can Sue in Own Name. Under Revised Statutes 1909, section 9254, subdivision 9, as modified by Laws 1911, p. 340, which omitted the provision of the revision section exempting the city from payment of costs, the owner of tax-bills for public improvements may bring an action thereon in his own name, though he might also have proceeded in the name of the city to his use.</p>

— Hon. Sterling H. McCarty, Judge. (1) At common law a verbal conditional sale contract was good, not only as between tbe original parties, but also .as to innocent purchasers and creditors of the conditional vendee. This rule of law obtained in all the states, including Missouri, except possibly Illinois, and is also the Federal Rule.

-1-How. W. 8. G. Walker, Judge. (1) The power of the court to permit an officer to amend his return should be exercised by the court where it will be in furtherance of justice. E. S. 1909, sec. 1848; Feurt v. Caster, 174 Mo. 289; Scruggs v. Scruggs, 46 Mo. 271; Trust Company v. Enright et al., 1621 Mo.. App. 162; Smoot v. Judd, 184 Mo. 508; Kauhn v. Mercantile Town Mutual Insurance Co., 228 Mo. 585; Priest v. Capitain, 236 Mo. 446.

<p>Appeal from Circuit Court of Mississippi County. — Hon. Frank Kelly, Judge.</p> <p>Plaintiff was entitled to a new trial on account of newly discovered testimony. His application is supported by Ms own affidavit, clearly showing diligence, and by tbe affidavit of tbe witness, Stringer, which discloses that the newly discovered testimony, in a case as evenly balanced as this was, would certainly produce a different result. The rule is: It the affidavit of the witness discloses facts which would, if true, probably produce a different verdict, a new trial should be granted. Meish v. Sippy, 132 Mo. App. 559; Howland v. Eeeves, 25 Mo. App. 458.</p> <p>(1) But the action of the trial court in refusing to grant a new trial on the grounds of newly discovered evidence is not before this court for review because the motion for new trial did not set out the alleged newly discovered evidence, nor the name of the witness nor the allegation that due diligence had been used. It is necessary that the motion itself contain these things. To set them out in the affidavit is not sufficient. Lyons v. Eailroad, 253 Mo. 161-163; Bowen v. Matlack, 188 S. W. 100; Winn v. Grier, 217 Mo. 461; King v. Gilson, 2'06 Mo. 277; State v. David, 159 Mo. 535; State v. Welsor, 117 Mo. 582. (2) The appellate court will not reverse a case unless they believe error materially affecting the merits of the case was committed. Sec. 2082, E. S. 1909; Lessenden v. Mo. Pac. Ey. Co., 238 Mo. 247; Pink v. Kansas City So. Ey. Co., 161 Mo. App. 314; Shinn v. United Eys. Co., 248 Mo. 173; Eead v. Mo. Pac. Ey. Co., 161 Mo. App. 522; Lower v. Marceline Coal & M. Co., 142 Mo. App. 351.</p>

<p>1. PHYSICIANS AND SURGEONS: Plaintiff in Malpractice Suit Need Not Negative Contributory Negligence. An instruction in a malpractice suit against physicians, which placed on plaintiff burden of proving that he was not guilty of contributory negligence, was erroneous.</p> <p>2. APPEAL AND ERROR: Erroneous Instruction Held Harmless, Where Plaintiff Not Entitled to Recover. In a malpractice suit against physician, an instruction, erroneous by reason -of placing burden on plaintiff of showing that he was not guilty of contributory negligence, was harmless, where plaintiff failed to make any case of negligence defendant, whose demurrer to the evidence at the close of the case should have been sustained.</p> <p>3. PHYSICIANS AND SURGEONS: Evidence of Negligence of Physicians Insufficient to Go to the Jury. Where the only question on which it could be contended that there was negligence shown in setting a broken leg was that the result and the treatment showed an unskillful and negligent treatment, one fact oeing that thirty days after treatment began, and after a serious infection had set up and pus was being emitted, a piece of leaf came out, also slivers of bone from time to time, there being no testimony that the treatment received was different from that which an ordinary physician would have used in the case, a demurrer to .the evidence should have been sustained.</p>

<p>Appeal from Circuit Court of Mississippi County.— Hon. Frank Kelly,.Judge.</p> <p>(1) A plaintiff cannot sne upon one cause of action and recover on another. Recovery must always depend up the cause of action stated in the petition. St. Louis v. Wright. Contracting Co., 210 Mo. 491; Henry County v. Citizens Bank, 208 Mo. 209, 224; Carson v. Cummings, 69 Mo. 332. (2) A judgment in excess of the amount sued for as set forth in the petition is error and such judgment cannot stand. Moore v. St. Louis S. E. Ry. Co., 117 Mo. App. 384; Middendorf v. Bonaventure, 150 Mo. App. 536-37; Balch v. Myers, 65 Mo. App. 427; Impkamp v. Transit Co., 108 Mo. App. 664; Powell v. Harrell, 92 Mo. App. 412; Cauthorn v. Berry, 69 Mo. App. 408, 412; Gervin v. St. Louis Refrigerator Co., 66 Mo. App. 315; Paulson v. Collier, 18 Mo. App. 583, 605; Moore v. Dixon, 50 Mo. 424; Smith v. Royse, 165 Mo. 654, 658; 23 Cyc. 795. (3) Both under the contract and the law it was defendant’s' duty to reduce the damages caused by plaintiff’s breach of contract and the expenses defendant incurred in good faith for- such purpose are properly chargeable to plaintiff. 17 C. J. 806; Mitchell v. Violette, 203 S. W. 218; Gilwee v. Pabst, 195 Mo. App. 490, 193 S. W. 886; Myers v. Adler, 188 Mo. App. 607; Coffman v. Railroad, 183 Mo; App. 622; Wallace v. Workman, 187 Mo. App. 113, 173 S. W. 35; Niehaus v. Gillanders, 184 S. W. 949; State ex rel. v. Powell, 44 Mo. 436.</p> <p>(1) Where the judgment is technically wrong the appellate court may modify it or affirm accordingly. State ex rel. v. Trust Co., 209 Mo. 494; Henry County v. Salmon, 201 Mo. 136. (2) Mere irregularities in the judgment which are not prejudicial to the defendant are not reversible error. Edwardson v. Garnhart, 56 Mo. 81; West v. Bailey, 196 Mo. 517. There was conversion of the timber on the Hunter land in this case. Davis v. Barnes, 3 Mo. 137; Watson v. Gross, 112 Mo. App. 615; Shewalter v. Mo. Pac. Ry., 84 Mo. App. 589; State v. Omaha Bank, 59 Neb. 483.</p>

— Llon% Fred Stewart, Judge. (1) A remedy by injunction exists when it will prevent the doing of a legal wrong, where no adequate remedy at law exists. Section 2534, R. S. 1909. (2) “A mandatory injunction is usually denied when the plaintiff has a complete remedy by mandamus.” Ettenson v. •Wabash R. Co., 248 Mo. 395. (3) “An injunction cannot be issued to allay the fears and apprehensions of the plaintiff.

— Hon. Sterling H. McCarty, Judge. Respondent’s petition charged and the proof showed that Fred A. Chapin applied for and obtained the policy and assigned it to the company, acting on his own initiative. The assignment was therefore admitted and proven and it being valid in law, it vested title in the company. Ins. Co. v. Bank, 216 S. W. (Mo. App.) 785 (4); Lee v. Society, 195 Mo. App. 40; Cornell v. Ins. Co., 179 Mo.

— Eon. Sterling E. McCarty, Judge. The court erred in saying in the presence and hearing of the jury: Why do you want to waste my time? (Abs. 301). If you can show he is not dead, show it (Abs. 33). Go ahead — this is our witness, too (Abs. 39). Yes, sustain the. objection (Abs. 39). This is a confidential conversation, doctor may answer if he wants to, or not (Abs. 40). I know, that, what next (Abs. 41) ? You can prove that by his wife, she is here (Abs. -25).

W. S. G. Walker, Judge. (1) A railroad-crossing is a dangerous place, and is itself a signal of danger. A traveler approaching it is imperatively required by law to look carefully in both directions, at a convenient distance from tbe crossing and where looking will be effective, before venturing upon it, if, by looking, a train could be seen. And tbe duty to look is a continuing one until tbe crossing is reached. Not only is be required to look, but also to listen.

— Hon. E. M. Dearing, Judge. (1) The contract of lease pleaded by respondent, not having been made in writing, and being for the lease of land for more than one year, and for the performance of obligations by both parties thereto which were not to be performed within one year from the making of said contract, was in violation of the Statute of Frauds and void. R. S. 1909, sec. 2783.

<p>1. LIFE INSURANCE: Assessment Plan: Elements Constituting Assessment Insurance. Under the provisions of the statute (See. 6950, R. S. 1909), where the payment of benefits to accrue to the beneficiary named in an insurance policy is, in any manner, or degree, dependent upon the collection of an assessment upon insured holding similar contracts, the policy is a contract of insurance upon the assessment plan. i</p> <p>2. -: -: -. Where the policy of insurance provides for the accumulation of an emergency fund, for payments of benefits that are dependent upon the collection of assessments from others holding like policies and for the collection of a definite sum to be paid after the expiration of a certain period with the further provision for assessments to be levied pro rata upon other members, it meets the requirements of the statute (Art. 3, ch. 61, R. S. 1909), concerning insurance on the assessment plan and the fact that a portion of the premium to be paid is definite does not deprive the policy of its characteristics as an assessment policy.</p>

<p>ADMINISTRATION: Notice of Claim: Waiver of Notice. In an action on an account against the administrator of an estate, no recovery can be had unless it is proven that a written notice of the claim was given the administrator (Sec. 203, R. S. 1909) or that the administrator waived service of notice by appearing in court, or by writing (Sec. 205, R. S. 1909). The appearance of the administrator, in court in vacation at the time a claim is filed, is not such an appearance in court as will constitute a waiver of the service of notice required by the statute.</p>

<p>FRAUD AND DECEIT: Acceptance of Deed: Merger. Where one is induced, by fraud and deceit, to accept a deed to real estate when he is under no contractual obligations to accept it with defects in the title uncured, an action for fraud and deceit may be maintained, as the acceptance of such deed, under those circumstances, is not a merger of all the prior and contemporaneous terms of the contract into the deed, the action not being based upon the contract nor upon any terms thereof inconsistent with the provisions of the deed.</p>

<p>Appeal from Adair County Circuit Court. — Hon. James A. Cooley, Judge.</p>

<p>Appeal from Cape Girardeau Court of Common Pleas. — • Eon. John A. Snider, Judge.</p> <p>(1) Money paid under a judgment so long as that judgment has not been reversed or set aside cannot be recovered. Greenabaum et al. v. Elliott, Admr, 60 Mo. 25; Smith v. Sims, 77 Mo. 272; Ogden v. Railroad, 131 Mo. App. 336; Donnell v. Wright, 147 Mo. 647; Greer v. Major, 114 Mo. 157; Seaman v. Seaman, 181 S. W. 24; Ogden v. Ader, 184 S. W. 73; Pitts v. Fugate, etc., 41 Mo. 406; Atldson v. Henry, 80 Mo. 671; Cooper v. Duncan, 20 Mo. App. 359. (2) A judgment is the final determination of the rights of the parties in the action. R. S. 1909, sec. 2090; Bedford v. Sykes, 168 Mo. 14; Knight v. Cherry et al., 64‘Mo. 515; Muffin v. Rieger, 169 Mo. 534; Greenbaum et al. v. Elliott Admr., 60 Mo. 31; Hope v. Blair, 105 Mo. 93. (31) By the doctrine of res adjudicada under the broad principles of the law those issues which are germane and should or might naturally have been tendered are precluded by the judgment once for all. Emmert v. Aid-right, 231 Mo. 128; Lieber v. Lieber, 239 Mo. 36; McLure v. Bank, 263 Mo. 135; Spratt v. Early, 199 Mo. 491; Donnell v. Wright, 137 Mo. 647; Cantwell v. Johnson, 236 Mo. 603; Greenabanm et al. v. Elliott, etc., 60 Mo. 25; Ogden v. Railroad, 131 Mo. App. 335. (4) When a case is presented the whole case should be presented and, if not, it is nevertheless adjudicated the same as if it had been. Spratt v. Early, 199 Mo. 502; Lilly v. Menke, 143 Mo. 145.</p>

Louis. —Eon. Wilson A. Taylor, Judge. (1) The court erred in overruling the defendant’s demurrer to the evidence, because, there was no evidence that the insured came to his death from bodily injuries through external, violent and accidental means.

<p>1. STREET RAILROADS: Negligence: Two. Counts In Petition: Separate Causes of Action: Adverse Verdict on One: Not Appealed: Liability Ended. In an action for damages on account of personal injuries alleged to have been sustained by plaintiff by reason of tbe negligence of tbe defendant, where the petition was in two counts and each count constituted a separate cause of action against the defendant, joined for convenience, a verdict and judgment on the first count standing unappealed from by plaintiff, constitutes a conclusive adjudication against plaintiff as to the liability of defendant as for the alleged negligent acts of defendant complained of in that count.</p> <p>2. -: -: -: -: Adverse Verdict on One Does Not Defeat Recovery on Other. In an action for damages on account of personal injuries, where the petition was in two counts, a verdict and judgment against the plaintiff on the first count of her petition seeking to recover damages for injuries caused by alleged negligence in closing the door of the car from which plaintiff was alighting so as to break the bones of plaintiff’s wrist, did not conclusively establish the fact that plaintiff received no blow whatsoever by the closing of the door, and that she consequently was not dazed when she alighted to the street and unable, momentarily, to extricate herself from danger from the swinging of the rear end of the car which swung out and struck her in turning, inflicting injuries for which she seeks recovery in the second count of her petition.</p> <p>3-. -: -: Alighting Passenger: Contributory Negligence: Evidence: Question for the Jury. In an action for damages on account of personal injuries alleged to have been sustained by plaintiff, who was a passenger on one of defendant’s street cars and who claimed to have received a blow as she was attempting to alight by, the closing of a door upon her wrist so that she was in a dazed condition as she stood momentarily in the street thereafter, and was struck by the rear end of the car which swung out in turning, held that the question of plaintiff’s contributory negligence was one for the jury.</p> <p>4. WITNESSES: Privileged Communications: Attorney and Client: Fraud: Effect. In an action for damages on account of personal injuries alleged to have been sustained by plaintiff who was a passenger on one of defendant’s street cars, by being struck by the rear end of the car swinging out in turning whilst in a dazed condition from a blow on the wrist caused by closing a door as she was alighting, testimony of attorneys first engaged-by plaintiff in her case' offered by defendant, to the effect that plaintiff stated to the attorneys that the fracture of her arm occurred from her being struck by the body of the car and knocked down, and made no statement claiming her hand was caught in the front door of the car, held that the trial court properly excluded the testimony of these witnesses, such communications between client and counsel, under section 6362, Revised Statutes 1909, are privileged and cannot be violated or set aside upon a mere suggestion of fraud.</p> <p>5. INSTRUCTIONS:'Measure of Damages: Using Phrase “Injuries in Question:” Not Reversible Error.. In an action for damages on account of personal injuries alleged to have been sustained by plaintiff, who was a passenger on one of defendant’s street cars, and who claimed to have received a blow as she was attempting to alight by the closing of a door upon her wrist so that she was in' a dazed condition as she stood momentarily in the street thereafter, and was struck by the rear end of the car which swung out in turning, an instruction which told the jury that if, under the evidence and the court’s instructions concerning the cause of action set up in count number 2 of plaintiff’s petition, they should find in favor of plaintiff, then to assess plaintiff’s damages at such an amount as they believe from the evidence would be a fair compensation for her pain, if any, which she has suffered occasioned by her injuries in question, held that while the instruction may be subject to criticism as being too general in form, the use of the words “injuries in question” did not constitute reversible error.</p> <p>6. -: -: Complained of as too General: Duty to Offer Limiting Instruction. Furthermore, if the defendant regarded the instruction as too general or too indefinite in this respect, it was its duty to offer a limiting instruction.</p> <p>7. -: Referring to Pleadings: Reference to Particular Count in Assessing Damages: Harmless. While the jury should not be referred to the pleadings to ascertain what the issues are, no harm could result from the reference to° the second count of the petition in an instruction for plaintiff dealing only with the damages assessable on that count. \</p> <p>8. -: Improper Allowance for Loss of Earnings and Medical Attention: Remittitur: Harm Cured. An instruction on the measure of damages that improperly allows a recovery for loss of earnings and for medical attention, where the evidence shows that plaintiff sustained no such loss properly chargeable against defendant, remittitur of the amount thus improperly allowed cured any harm which may have been done by this part of the instruction.</p>

Louis.— Eon. George E. Shields, Judge:- (1) An offer of reconciliation must be made in good faith and not merely to lay a foundation for a divorce. It must be couched in terms likely to bring about a reconciliation. A cold and formal invitation to return, especially if it does not contain an expression of regret for the offerer’s own wrong-doing, is not sufficient as an offer of reconciliation and may be disregarded. 14 Cyc. p. 619.

Louis County.— Eon. G. A. Wurdeman,' Judge. (1) The plaintiff cannot sue by injunction to test the right of a city of the fourth class to extend its limits; so as to take in contiguous territory must be assailed directly by the State in quo warranto, or other direct proceeding by the State, and cannot be collaterally attacked as in this case, citing the folloAving cases, to Avit: Kayser v. Trustees of Bremen, 16 Mo. 88; State ex rel. v. Mineral Land Co., 84 Mo.

<p>CORPORATE STOCK: Purchase: Notes:. Separate Contemporaneous Contract: Bankruptcy: Notice. A corporation manfacturing •cement and brick desired to acquire and interest customers by having- them become stockholders, to that end it sold stock, the face value of which was $1000, to defendant, the latter paying $250, in cash and giving three negotiable notes of $250, each and the corporation executing a contract whereby it agreed to furnish defendant with cement and brick of the value of $1000. The corporation delivered material to defendant for the cash payment, but never delivered any for the three notes and being thrown into bankruptcy became forever disabled to do so. Before becoming bankrupt, the corporation,. through its president, borrowed money of the plaintiff and endorsed these notes to plaintiff As collateral for the loan; the president endorsing them individually, also. The corporation defaulted in paying the loan and the president paid it, the plaintiff turning back to him the corporations notes. But the president requested the bank to keep them and bring suit for his benefit against defendant, which it did. Held; that the consideration had failed and plaintiff could not recover.</p> <p>2. CONTEMPORANEOUS CONTRACT: Note: Endorsee: Construction. When a written contract is executed contemporaneously with a promissory note, concerning the same subject matter, one depending upon the other, they should be read together and construed together and if an endorsee has notice of the contract he will be held to abide by the contract as it affects his rights in payment of the note.</p>

<p>Appeal from tbe Circuit Court of Johnson County.— Hon. Ewing Cockrell, Judge.</p>

<p>1. STREET IMPROVEMENT: Comer: Abutting. Where the property of a citizen only corners on an intersection of a street paving improvement it does not abut on such street.</p> <p>2. CORNER: A corner is merely an indefinite point without definable area.</p> <p>3. POWER TO TAX: Statute: Unambiguity. Power to tax for a street improvement must be conferred by an unambiguous statute before it can be exercised.</p> <p>4. ADEQUATE REMEDY: Pleading: Allegation. While One to invoke equity must not have an adequate remedy at law yet he \ need not so specifically allege.</p>

<p>LIFE INSURANCE: Misrepresentation: Statutes: Cancer: Issue. The Statute of Missouri (Sec. 6937, R. S. 1909) provides that no misrepresentation made in obtaining a life insurance policy shall be deemed material, unless the matter misrepresented shall have actually contributed to the death; and that whether it did or not shall be a question for the jury. It was held that where the insured died of cancer of the womb, misrepresentations as to all other ailments could not be considered, and the sole issue would be, was the insured afflicted with cancer of the womb at the time she made the representation in her application and not whether she afterwards was so afflicted.</p>

<p>1. FRAUD: SALE: Corporate Stock: Representation of Value. A small packing house plant was mainly owned by individual sin .the community in which it was located. An agent sold ten shares of stock for $50, cash an da note for $250, to a farmer living a few miles from’ the town in which it was located who had been over the plant and who frequently sold cattle and hogs to it. He had lived in the county near the town all his life; came to it on an average once a month and had a large acquaintance there, including bankers. The agent approached him at his home and stated that the plant was incorporated with $166, 500 stock and that it was worth its capitalization, though it was only appraised at half that sum. He complained that the representations of value were false and fraudulent. No artifice or trick was employed to mislead him or to prevent him making inquiry as to values. He brought an action to cancel the note an recover back the $50. It was held that he had no right of complaint and that his bill should be dismissed.</p> <p>2. FRAUDULENT REPRESENTATIONS: Value: Equal Footing. Representations of value are ordinarily merely opinions and are not grounds for an action for fraud to annul the contract where the parties are on equal footing and the vendee has opportunity at hand to ascertain for himself and from his own conclusion.</p> <p>3. FRAUD: Duty of Vendee: Opinions Value. The Law repuires that a vendee on an equal footing with his vendor shall use the means of information which' he may have by reasonable effort, and if he fails to do so he has no right to complain of opinions of value expressed by his vendor. If, having eyes, he will not see matters directly before them, he will not be entitled to consideration when he complains that he has suffered from his own voluntary blindness.</p> <p>4. EVIDENCE: Quantum of Proof. In order to annul a contract for fraudulent misrepresentations the proof must be clear, cogent and so convincing as to leave the case without doubt.</p>

<p>1. ABUTTING OWNER: Rule Qualified:. Access to Other Streets: Damages. The rule that one has no claim for damages to his property for an obstruction to a street unless such property abuts on such street is subject to an important qualification, viz., that if one’s access to the general system of streets in a town is entirely cut off whereby he suffers special and peculiar damages not common to the public in the same vicinity, an action in his favor will lie.</p> <p>2. NOT ABUTTING: Access to Other Streets Not Entirely Closed: Inconvenience. Where ones property does not abut on an obstructed street and his access to other streets leading to other parts of the city are not entirely closed, such access being only made more inconvenient, he is not entitled to damages for such inconvenience.</p> <p>3. LIVING WELL OF WATER: Excavation: Not Abutting: Damages. If a railway company makes a deep excavation along its right of way so that it drains the well of living water on premises in the neighborhood though not abutting on the right of way, it is liable in damages.</p>

<p>Appeal from the Circuit Court of Jackson County.— Hon. Thos. J. Seehorn, Judge.</p>

— Eon. L. B. Woodside, Judge. (1) The appellant, G. D. Addison, -filed this suit against the Dent County Savings Bank for money had and received. The said bank in receiving plaintiff’s money on current deposit immediately started the relation of debtor and creditor existing between them. Butcher v. Butler, 134 Mo. App. 61; 0 ’Grady v. Stotts City Bank, 106 Mo. App. 366; Arnold v. Sedalia Nat’l Bank, 100 Mo.

— Ron. Allen McReynolds, Judge. (1) “It is a condition of the validity of a bailment as in the case of contracts generally, that it shall not be made in a manner, nor for an object, forbidden by statute or otherwise contrary to law or to public policy.” 6 C. J. 1106, sec. 33.

— Hon. Fred Stewart, Judge. (1) This action being for damages for an alleged assault must have been commenced within two years from the date of the. alleged injury. R. S. 1909, sec. 1891. (2) Where suit is brought in the county where one defendant resides, to authorize service on a co-defendant in another county, there must be a joint liability. One cannot be made a defendant for the sole purpose of getting service on a defendant in another county.

— Hon, L. B. Woodside, Judge. (1) A shipment of goods by C. O. D., any failure of the common carrier to deliver the goods to the proper party, or to collect the amount due before delivery, makes the carrier guilty of conversion and liable to the shipper of the goods for the amount it contracted to collect. Brockman Com. Co. v. Mo. Pac. Ry. Co., 188 S. W. 920.

<p>Appeal from DeKalb County Circuit Court. — Eon. Alonso D. Burnes, Judge.</p>

<p>Appeal from Clay County Ciroiiit Court. — Eon. Frank P. Divelbiss, Judge.</p>

<p>Appeal from Bates County Circuit Court. — Hon. G. A. Galvird, Judge.</p>

<p>1. ADMINISTRATION: Appointment of Administratrix: Widow wbo Married Husband Claimed to be Mentally Incompetent While on His Deathbed, Properly Appointed. Widow properly appointed administratrix, although her right to act was contested on the ground that she had married husband when he was on his deathbed and at a time when he was mentally incompetent to understand the nature of marriage ceremony.</p> <p>2. EVIDENCE: Mental Capacity: Marriage: Presumption: Property Rights. In view of the extremely strong presumption of legality in favor of marriage' and the fact that at most only property rights are involved, the evidence was sufficient to support a finding that deceased was mentally capable of understanding marriage ceremony.</p> <p>3. MARRIAGE: Voidable Marriage Attacked Only in Direct Proceeding by One of the Parties During Their Lives. A voidable marriage" can only be inquired into by direct proceedings by one of the parties during the lives of both of them and unless it is set aside during such lives it becomes a valid marriage.</p> <p>4. MARRIAGE WITH INSANE PERSON VOIDABLE NOT VOID IN THIS STATE. In view of sections 8280 and 8281, Revised Statutes 1909, a marriage between persons, one of whom is of unsound min'ii, is voidable and not void in this State.</p>

<p>Appeal from Vernon County Circuit Court. — Hon. Berry G. Thurman, Judge.</p>

<p>Appeal from tlie Cass County Circuit Court. — Hon. Ewing Cockrell, Judge.</p>

<p>1. PETITION: Water: Negligence: Cause of Action Stated Under Statute: Embankment Obstructing Natural Drain: Overflow of Land: Damaging Crops of Landowner. Under section 3150, Revised Statutes 1909, a petition which avers that a natural drain was completely closed up by embankment and the only other avenue of drainage, the channel of a river under a bridge was obstructed and reduced, so that water collected and was damned up because of said obstruction damaging crops thereby, states a cause of action.</p> <p>2. PLEADING: Cause of Action Defectively Stated Good After Verdict. Even if the petition stated a cause of action defectively it is good after verdict, because no attack was made thereon prior thereto.</p> <p>3. WORDS AND PHRASES: “Drain,” Not a Ditch or Running Stream is Within Statute. A drain which is well defined, but is not a ditch or running stream, is within the purview of section 3150 Revised Statutes 1909.</p> <p>4. --: Ditch or Drain Defined. A ditch or drain has no technical or exact meaning and has been defined to mean a hollow or open space in the ground, natural or artificial, where water is collected, or passed oft.</p> <p>5. RAILROADS: Watercourses: Statute Requires Railroad, or Operators Thereof, to Maintain Openings for Outlet of Water Through Obstruction. The purpose of the statute is to require railroads, or operators thereof, to maintain openings and ditches through obstruction connecting with ditches, drains or watercourses, to sufficiently let water pass off which the building of a railroad embankment obstructed and prevented the drains or watercourses from carrying off.</p> <p>6. -: Obstruction of Drain: Outlet. The statute is not merely to prevent the damning up of a drain, but to compel the railroad to furnish an outlet for surface water, which, but for the railroad would reach a watercourse or drain.</p> <p>7. STATUTE: Application: Overflow: Surface Water Obstructed by Embankment. Section 3150, Revised Statute 1909, has no application to overflow or surface water, but where rain fall, as well as the overflow of streams would, but for an embankment erected by a railroad, flow through the natural drain into the river, the drainage capacity of the river at the locality in questio'n being assisted in times of flood by the drain which the embankment has shut up, the statute applies.</p> <p>8. -: Duty of Railroad Obstructing Drain by Embankment: Overflow or Surface Water. Under section 3150 a railroad is required to make openings for water which its embankments keep from going into a watercourse, and in that way drain off, even if it is overflow or surface water.</p> <p>9. 1-: Landowner Entitled to Recover Though Land Does Not Adjoin or Abutt on Railroad. The fact that plaintiff’s land does not adjoin or abutt upon the railroad cannot prevent or defeat his recovery.</p> <p>10. --: Interpretation. Where a statute is penal as to one feature of it and remedial as to another feature, ■ it should be given a liberal and fair interpretation as to the remedial feature.</p> <p>11. INSTRUCTIONS: Covering Matters Not an Issue — Harmless Error. Where the evidence showed that floods were not unusual, or extraordinary, plaintiff’s instructions were not fatally erroneous in not excluding unusual, unprecedented and extraordinary floods, because such issue was not in the case.</p> <p>On Motion for Rehearing.</p> <p>12. INSTRUCTIONS: Unnecessary to Submit Conceded Matters. In an action where an obstruction to a drain and an obstruction to a river jointly cause the damage done, an instruction which mentioned only the obstruction to the drain thereby omitting the obstruction to the river, it was unnecessary to submit that matter to the jury where the evidence on both sides shows that the damage done by the obstruction in the river was conceded.</p> <p>13. EVIDENCE: Prior Overflows: Admissible as Evidence of Obstruction of Drain. Evidence of overflows in previous years at which times waters were held hack and rose so high at the point where the embankment crossed the drain that the water was higher than the embankment and broke over, washing out portions of the embankment, whereupon the waters went rapidly away, constitutes evidence of the obstruction of the drain by the embankment.</p> <p>14. INSTRUCTIONS: Failure to Instruct Upon an Issue Not in the Case is Not Error. Where it was admitted that the channel of the river was obstructed and that there were no openings, the question of the suitability of openings was not an issue in the case and there was no error in failing to tell the jury what constituted a suitable opening.</p>

<p>Appeal from Cole County Circuit Court. — Eon. John G. Slate, Judge.</p>