Volume 207 — Missouri Appeal Reports

<p>1. EVIDENCE: Inferences: Ultimate Fact May be Proved by Direct or Circumstantial Evidence, but Must Appear as a Direct Inference from Other Facts. The existence of an ultimate fact may be proved, either by direct or circumstantial evidence, but such fact must appear as a direct and reasonable inference from other facts and circumstances, and not as a result of an inference that can be reached only by a process of reasoning.</p> <p>2. -: -: Conclusions: Not Permitted to Build Inference upon Inference or Supply Elemental Facts Thereby. One is not permitted to build inference on inference, conclusion on conclusion, nor supply elemental facts by inference.</p> <p>3. CARRIERS: Negligence: Question for the Jury Without Violating Rule of Inference upon Inference. In a suit to recover damages for death of an aged man who was thrown by the sudden movement of a street car while he was attempting to board the same, the negligence of the defendant under the evidence, held a question for the jury without violating the rule of building inference upon inference.</p> <p>4. EVIDENCE: Jury not Required to Accept Defendant’s Theory of Case. Where defendant’s evidence tends to show that deceased was injured in a manner inconsistent with the inference that the jury necessarily must have drawn to find for plaintiff, the jury was not required to believe defendant’s evidence.</p> <p>E. DEATH: Direct Cause: Evidence Held to Show Death Due to Defendant’s Negligence and not to Intervening Cause. Where deceased suffered from a broken hip caused by being thrown by negligent movement of street car, and while confined to his bed by reason thereof became afflicted with bed sores, which became infected and he conveyed the infection from the sores by his hand to his face, causing facial erysipelas, held, that his death from facial erysipelas due to breaking of his hip as the direct result of his fall, and not to any intervening cause.</p>

<p>1. RAILROADS: Receivers: Discharge of Receiver no Bar to Claim Against Railroad Assuming Obligations. Where a railroad reorganization committee, in order to procure discharge of receivership, made an offer that railroad would assume all contracts, undertakings' and commitments of receiver and the prosecution and defense of all actions, suits or litigations and the decree of court accepting the offer of said committee and discharging receiver provided for such assumption and also required claims to be filed and presented to a special master before a certain date, and that if not so filed and presented that the same should be barred from participating in any of the property of railway company, held decree merely-barred claim of character sued on from participating in property of railway company and did not prevent the same from being prosecuted against defendant after discharge of receiver or exonerate defendant from «liability.</p> <p>2. -: -: Reorganization: Agreement Held not Solely as Contract to Indemnify Receiver but Assumption of Liability as to Third Person. Where an offer of a reorganization committee to procure discharge of receiver, provided that railway company should assume all contracts, undertakings, and commitments of receiver with right to make any defense receiver could make, and to assume prosecution and defense of all actions, suits or litigations, such offer was not solely to indemnify receiver, but provided for assumption of liability to third persons.</p> <p>3. EVIDENCE: Presumption: Letter Properly Addressed, Stamped and Deposited in Place for Receipt of Mail Presumed Received in Due Course. Evidence that letter was mailed to addressee is equivalent to a statement that it was properly addressed, stamped and deposited in a proper place for receipt of mail, and raises a presumption that it was received in due course.</p> <p>4. CARRIERS: Delivery of Potatoes Contrary to Shipper’s Order Violation of Carrier’s Duty. Where potatoes were shipped by owner to its order with delivery order attached to draft, and agent at point of delivery was notified to deliver them to a certain company on presentation of delivery order, and hill of lading was released to agent at shipping point so that delivery could he made on presentation of order, delivery of potatoes contrary to such order was a violation of carrier’s duty.</p>

<p>Appeal from the Circuit Court of Jackson County. — Hon. ¥m. O. Thomas, Judge.</p>

<p>1. APPEAL ÁND ERROR: Only Way Error of Trial Court Sitting as Jury May he Corrected, if Decision Erroneous, is hy Request of Instructions so Reviewing Court may Know Theory on Which Issues Were Tried. Where a court in trying issues sits as a jury and gives a general verdict, the only way in which errors can he corrected, if court decides erroneously, or makes a misapplication of law to facts, is to request instructions so that reviewing court may know on what theory the issues were tried.</p> <p>2. STATUTE OF FRAUDS: A Memorandum Signed hy Defendant Directed to Another, Agreeing to Order Work, Performed hy Plaintiffs, is Sufficient Under Statute, Though not Signed hy Plaintiffs. A memorandum signed hy defendant alone, which showed on its face others were his agents, and as such, authorized to enter into contract, and contained all necessary elements of a contract, was a-sufficient written memoranda, to hind the party to be charged, under the Statute of Frauds.</p>

<p>Appeal from the Circuit Court of Jackson County.— Eon. William O. Thomas, Judge.</p>

<p>Appeal from the Circuit Court of Jackson County.-— Hon. Thomas B. Buchner, Judge.</p>

<p>STATUTE OF LIMITATION'S: Running Account: Mutuality in Charging Item: Denial of Liability of a Single Item Charged on an Open and Running Account Does Not Take the Same out of the Account so as to Start Running of Statute where Last Item of Running Account was not Barred by Statute. When a shipment is made upon an agreement that the value thereof, is to become a charge on an open and running account between the parties, and the charge is so made, the item cannot be taken out of the open account, and the Statute of Limitations, held, not to run against it because the purchaser, after . sender has made the shipment as directed, and goods fail to arrive, denies liability for the particular item.</p>

<p>Original Proceeding in Prohibition.</p>

<p>L' MORTGAGES: Deeds of Trust: Powers of Trustee: Trustee witli Consent of Parties and Bidders Could Receive Bids as Though Title was Clear and Deduct Amount Due on Prior Deed of Trust. Where all parties agreed, with full understanding by bidders, a trustee, under a second deed of trust, could accept bids at sale as if. land was free of all deeds of trust, and thereafter deduct from amount paid by purchaser at sale amount due on first deed of trust.</p> <p>2. -: Pledges: Assignor of Collateral Security not Prejudiced by Method of Sale and Application of Proceeds. Where one assigneu a note payable to him as collateral security for a note executed ■ by his son to another, who also held two notes, secured Tjy second deed of trust on son’s land, such a one cannot claim the note which was assigned as against the assignee, where the surplus derived from sale of land under second deed of trust, after payment of notes secured thereby, was applied by assignee to payment of note collaterally secured.</p> <p>3. EVIDENCE: Consideration Named in Trustee’s Deed not Conclusive. Where a trustee’s deed shows on its face that the real price paid for land was different than the sum recited therein, the price named therein is not conclusive on the parties and can be denied or explained.</p> <p>4. INTERPLEADER: Trial Practice: Evidence: Introduction Alone of Note Regular on its Face in Possession of Assignee Does not Entitle Assignor to Judgment. In an action against the maker of a note where the assignee of the note for collateral security and the assignor thereof were required to interplead, the assignor was not entitled to judgment when the assignee introduced the note and rested, though it be claimed he introduced the note as interpleader and not as plaintiff, because the burden was on assignor to go forward with his proof as the note bore an assignment in, all respects regular on its face and was in the possession of the assignee.</p>

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

<p>Appeal from the Circuit Court of Clinton County. — How. Alonso D. Burnes, Judge.</p>

<p>1. APPEAL AND ERROR: Pleading: Practice: Original Petition after Amendment Considered Abandoned Pleading and not Part of Record Proper. Where an amended petition is filed, the original becomes an abandoned pleading, and, as such, can no longer be regarded as part of record proper, and can only be brought to attention of appellate court by preserving it in bill of exceptions, and showing it in that part of abstract.</p> <p>. 2. -: Where Original Petition is not Shown in Bill of Exceptions the Striking Out of Amended Petition as Departure Therefrom Cannot be Reviewed. Under rule 12, of Court of Appeals,' clerk of trial court in making transcripts, whére an amended pleading has been filed, is required to treat last amended pleading as the only one of that order in cause, and refrain from setting out any abandoned pleadings as part of record, unless made such by bill of exceptions, and where a demurrer to an original petition was sustained and amended petition stricken out on ground that it was a departure, the point cannot be reviewed where original petition appeared in record proper and not in bill of exception^.</p> <p>3. -: Rule as to Similarity of Theory in Appellate Court as in Trial Court Does not Allow Former to Notice Matters which can Only be Brought to its Notice in a Particular Manner. Where abandoned original petition was not incorporated in bill of exceptions, and it was urged that striking out of amended petition should be considered because trial court took judicial notice of original petition, although not introduced in evidence, on hearing on motion to strike out, held, the rule as to- similarity of theory in appellate court as in trial court does not allow former to notice things which can only be brought to its notice in a particular way.</p> <p>4. COURTS: Controlling Decision: Obiter Dicta: Ruling of Supreme Court not Obiter Because Same Result Could be reached by Decision on Another Ground. Where Supreme Court ruled that abandoned pleading superseded by amendment could not be considered on appeal because not properly preserved in bill of exceptions such ruling was not mere obiter though same result would be reached by disposition of case on another ground, and the Court of Appeals is required to follow such decision.</p>

<p>1. INSURANCE: Suicide: Presumption: Burden of Proof: Where Suicide is Relied Upon as a Defense, the Burden to Establish Such Pact is on One Urging Same. Where suicide is pleaded as a defense, the burden is upon defendant to establish such fact by a preponderance of evidence for the reason that the presumption arising from love of life is, like every other natural presumption, always within tjie contemplation of the court.</p> <p>2. -: — : -: Evidence Insufficient to Support Theory of Suicide. Where the evidence shows that there were two gunshot wounds over the heart within an inch of each other, so that the ball from each shot must have passed through the heart, and the testimony of physicians was to the effect that either -wound would have caused instant death and have paralyzed every muscle and nerve in the body, held that as there was evidence deceased could not have fired the second shot, especially as the revolver from which the shots were fired required a distinct and separate action for each discharge of weapon, the defendant failed to produce a preponderance of evidence in support of suicide theory.</p> <p>3. —:-: -: Cause of Death: Question for Jury: Where There is a Reasonable Inference Against Suicide, Cause of Death Becomes Question for Jury. Wheye a reasonable inference against suicide is shown by the evidence, the cause of death is a question for jury and the court did not err in overruling defendant’s motion for a declaration of law in the nature of a peremptory instruction.</p> <p>4. EVIDENCE: Powder Burns: Matter of Common Knowledge: Elucidation by Experts not Required. ' The matter of powder burns is of common knowledge, the result of every day experience, and is not a matter for elucidation by experts.</p> <p>5. -: Physicians and Surgeons without Special Showing, Qualified to Testify as to Effect of Shock on Human Body. Physicians and surgeons, from the very educational requirements of their profession, are qualified, without any special showing thereof, to testify to the effect of shock on the human body caused by bullet wounds.</p> <p>6. -: Non-Expert Cannot Testify as to Mental Condition without Giving Facts upon Which Opinion is Based. A non-expert witness who does not give facts upon which opinion is based, is not qualified to testify as to mental condition of a person.</p>

<p>1. WITNESSES: Husband and Wife: Husband Competent Witness in Wife’s Lawsuit Where .Made so by Statute. At common law, the husband was not a competent witness in his wife’s lawsuit, and he is, therefore, only a competent witness where made so, by section 5415, Revised Statutes 1919, which removed the disqualification of the husband to testify as a witness in his wife’s suit when such suit or proceeding is based upon, grows out of, or is connected with, any matter of business or transaction had with or conducted by the husband as agent for his wife, and, perhaps, in a few other limited instances.</p> <p>2. -:--: Evidence: Husband’s Testimony Inadmissible in Wife’s Action Against Physician for Malpractice. In a suit by wife against a physician for negligently diagnosing condition and in advising and deciding upon a surgical operation for removal of a tumor, where upon performing operation it was found that pregnancy, and not a tumor, was the cause of her trouble, testimony of husband, who had been consulted about one operation and witnessed another, was inadmissible under section 5415, Revised Statutes 1919, making husband’s testimony competent, when the proceeding is based upon, grows out of, or is connected with, business or transaction had with and conducted by husband, as agent for his wife, as the basis of the suit was not with regard to the manner of performance of the operation or extent thereof, but for negligently diagnosing plaintiff’s condition and in deciding to perform the operation.</p> <p>3. PHYSICIANS AND SURGEONS: Malpractice: Negligence: Mistake in Diagnosis: Burden on Plaintiff to Show not only Mistake in Diagnosis, But That Such was a Negligent Mistake Rendering Operation Unnecessary. The burden is on patient to show not only that physician made a mistake in diagnosing her condition and in deciding upon and advising a second operation, but patient must also show that such was a negligent mistake and that the operation was so palpably unnecessary that a surgeon of ordinary care and prudence would not have advised nor undertaken it.</p> <p>4. -:-: -: Negligence of Surgeon in Making Diagnosis and Advising Operation Determined in Light of Conditions Existing Prior Thereto. The question of whether surgeon was negligent in making diagnosis and in deciding upon an operation must he determined in. the light of conditions as they existed before the operation was performed.</p> <p>5. .-: -: -: — : Surgeon Making Mistake in Diagnosis, Not Liable for Honest Exercise of Best Judgment. Where conditions are such as to lead a surgeon of ordinary care and skill to think that patient was not pregnant, or even -that as a remote possibility, patient might be and yet an operation was necessary, and surgeon in the honest exercise of his best judgment thought an operation was proper, the surgeon would not be liable even though it afterward turned out that surgeon was mistaken in diagnosing patient’s condition.</p> <p>6. --: -: -: Evidence: Expert Testimony: Whether Surgeon’s Decision to Operate Negligence Determined by Testimony of Experts. Where there are conditions existing such as to raise a question whether an operation is advisable or proper, the question of whether surgeon’s decision to operate is negligent or not, should be gathered from opinions and testimony of those who have special knowledge and are qualified to speak on such matters.</p> <p>7. -: —-—: -: Negligence of Physician in Advising Unnecessary Operation, Question for Jury. In an action for malpractice by a married woman against a surgeon where there was a question as to whether surgeon made as full and exhaustive an examination as he should have done before deciding to operate, and whether surgeon did not' carelessly assume that patient was suffering from a tumor, when, as a matter of fact, patient was merely pregnant and no operation was necessary, the question of whether there was negligence on the part of the surgeon was for the jury.</p>

<p>Appeal from the Circuit Court of Bates County. — Hon. Charles A. Calvird, Judge.</p>

<p>Appeal from the Circuit Court of Jackson County. — Hon. O. A. Lucas, Judge.</p>

<p>1. NEGLIGENCE: Motor Vehicle: Instruction: Degree of Care: Since Act of 1917, Providing Degree of Care to be Used by ■ Operators of Automobiles, an Instruction Requiring Defendant to Use “Highest Degree of Care” is Erroneous, and was Not Cured by Defining “Highest Degree of Care” to Mean Ordinary Care. In an action for damages for personal injuries caused by collision with an automobile in April, 1920, an instruction declaring defendant should exercise the “highest degree of care,” in the operation of an automobile, was erroneous because Session Laws 1917, p. 413, sec. 11, repealing Session Laws 1911, p. 320, sec. 12, subsec. 9, was in force and only required defendant to operate same in a careful and prudent manner, and the definition of the terms, “highest degree of care,” contained in said instruction, as meaning ordinary care, did not cure the error.</p> <p>2. INSTRUCTION: An Instruction Requiring Defendant to Exercise Higher .Degree of Care than Law Required, and Containing Elements of Humanitarian' Doctrine not Pleaded is Erroneous. An instruction which told the jury that if defendant, after discovering plaintiff in a position of danger, could by exercise of that high degree of care have stopped the car before it struck plaintiff, but failed to use sucli degree of care to stop said car, was erroneous as requiring too’ high a degree of care in violation of Session Laws 1917, p. 413, sec. 11, and because it also contained elements of humanitarian doctrine which were not pleaded.</p>

<p>Appeal from the Circuit Court of Jackson County. — Eon. Thos. B. Buchner, Judge.</p>

<p>1. EVIDENCE: Judicial Notice: Acts of Congress and Presidential Proclamations Judicially Noticed. The courts will take judicial notice of acts of Congress and presidental proclamations.</p> <p>2. -: —--: Cessation hy United States Government of Control of Telegraph System Judicially Noticed. The courts will take judicial notice of fact that the control of a telegraph system operated hy United States Government ceased on certain day by virtue of repealing Act of Congress.</p> <p>3. TELEGRAMS: Federal Control: Defendant not Liable for Failure to Promptly Deliver Telegram While its Telegraph System was Under Federal Control. In a suit instituted to recover $300, statutory penalty, provided by section 10136, Revised Statutes 1919, for failure to promptly deliver a telegram, where defendant’s telegraph system was at the time being operated by the United States Government, held, defendant was not liable and demurrer to the evidence should have been sustained.</p>

<p>1. PROHIBITION: Stranger to Action: Not Barred From Right to Writ. The fact that the relator is a stranger to the action below does not bar him from his right to obtain an writ of prohibition restraining the trial judge from proceeding further therein.</p> <p>2. -: Receivers: Appointment: Motion to Vacate: Not Necessary as Condition Precedent to Right to Writ. Nor is it necessary that the relator, as a condition precedent to his right to the granting of the writ of prohibition to restrain further receivership proceedings, should have moved to vacate the appointment of the receiver in the court appointing such receiver, where the excess of jurisdiction clearly appears on the face of the record.</p> <p>3. RECEIVERS: Appointment: Provisional Remedy: Exceptions. The appointment of a receiver is not the end and object of litigation, but merely a provisional remedy resorted to for the purpose of preserving property involved in litigation, so' that the relief awarded by the court, if any, may be effectual, except that courts of ‘equity have jurisdiction to appoint receivers' for corporations even in the absence of express statutory authority, in cases of extreme necessity for which there is no other adequate remedy.</p> <p>4. CORPORATIONS: Temporarily Without Officers: Receivers: Not Ground for Appointment Unless Condition of Extreme Necessity. A court of equity has no jurisdiction to appoint a receiver for a going corporation upon allegations alone showing that the corporation is temporarily without officers and directors, unless it appears that the circumstances are such that the condition thus alleged to ^ exist is one amounting to a condition of extreme necessity for which the complainants have no adequate remedy; a fortiori would this be true where the petition, though averring that the corporation is without officers and directors, upon its face shows that the complainants are in control of a majority of • the stock of the corporation, and hence in a position to remedy the matter without invoking the extraordinary power of a court of equity.</p> <p>5. PROHIBITION: Awarding Writ: Matter Within Sound Discretion of Court. The awarding of a writ of prohibition is a matter within the sound discretion of the court, yet such discretion is not an arbitrary one.</p> <p>6. • — -: Receivers: Appointment: Action of Court Beyond its Jurisdiction: Writ Awarded. The appellate court cannot, upon the sole ground of discretion in the trial court in appointing a receiver for a corporation, refuse the relief sought by relator when it appears that relator is materially affected by the action of the court, which action, is clearly beyond its jurisdiction.</p>

Louis.— Hon. Thomas Bond, Judge. (1) The petition does not state facts sufficient to Econstitute a cause of action, because; (a) The question of defendant’s liability in this case is dependent upon the observance or neglect of care, (b) There is no allegation in the petition that defendant was guilty of negligence which caused or permitted the leakage, or failed to observe due care in protecting against it.

Louis.— Hon. William T. Jones, Judge. An agreement of employment with the compensation set forth at a certain sum per annum, in absence of additional provisions, does not create a contract of employment for a year — nor for any definite term. Chadwick v. Morris & Co., 170 111. App. 569; Hoyle v. De Long, 248 Pa. St. 471; Thullon v. Electric Co., 227 Fed. 837; Edwards v. Railroad Co., 121 N. C. 490; Martin v. Ins. Co., 148 N. Y. 1.7; Brookfield v. Drury College, 139 Mo.

Louis.— Hon. Vital W. Garesche, Judge. (1) The notice of appeal in question was sufficient and valid in every respect, and the circuit court erred when it sustained the respondent’s motion to affirm the judgment of the justice of the peace. Igoe v. Bradford, 110 Mo. App. 670; Holscher Goal Co. v. Mo. Pacific R. R. Co., 48 Mo. App. 578; Cowhick v. Jackson, 161 Mo. App. 459; Reinhardt Grocery Co. v. Rust, 185 Mo. App 279; Collier v. Langan & Taylor, 128 Mo.

<p>1. BILLS AND NOTES: Notes Obtained by Fraud: Holder in Due Course: Defective Title Shown: Burden of Proof. In an action upon promissory notes, where the title to the notes in suit was shown to be defective, within the meaning of section 841, Revised Statutes 1919, by proof that defendant’s signature to the notes was obtained by fraud, by the terms of section 845, Revised Statutes 1919, the burden was placed on plaintiff to prove that he or some person under whom he claims acquired the title as a holder in due course, as defined by section 838, Revised Statutes 1919.</p> <p>i. -: --: -: Evidence: Prima-facie Showing: Not Controverted: Holder Entitled to Directed Verdict. The burden placed upon the holder hy section 845, Revised Statute»; 1919, is not the burden of proof in .its strict sense, but is the burden of producing evidence at some stage of the trial to make or meet a prima-facie case, and when plaintiff made a prima-facie showing that he acquired the title to the notes in suit as a holder in due course, he discharged the burden resting upon him, and it then devolved upon defendant to adduce evidence tending to overcome the prima-facie case thus made; and, if defendant failed in this, plaintiff was entitled to a directed verdict.</p> <p>3. -: -: —:-: -: -: - — : Controverting Evidence: Insufficient to' Overthrow Prima-facie Case. In an action, on promissory notes, where there is no substantial evidence tending to controvert the prima-facie showing made by plaintiff that he was a hojder in due course, so as to make it a question for the jury to say whether plaintiff took the notes without knowledge or the defect of infirmity in the payee’s title thereto, and in good faith, even though the evidence shows that defendant was defrauded by'the payees representative, plaintiff, suing as a holder in due course, was entitled, as a matter of law, to recover on the notes, and the trial court erred in refusing peremptorily to direct a verdict for plaintiff.</p>

<p>Habeas Corpus. Original Proceeding.</p>

Louis.— Hob. Vital W. Garesche, Judge. (1) The validity of the agreement of July 3, 1914, . between Franklin and this committee is directly challenged by the pleadings in this case, and, if it is illegal, the garnishees are liable. Doiik Bros. Coal & Coke Co. v. Kihealy, 81 Mo. 646; Epstein v. Clothing Co., 67 Mo. App. 221; Gutta Percha Co. v. Supply Co., 149 Mo. 538; Calumet Paper Co. v. Printing Co., 114 Mo. 331; Hungerford v. Greengard, 95 Mo. App. 653.

— Hon. N. M. Peitingill, Judge. (1) The defense that the suit was not brought within the one-year period required by the policy must fail, because, (a) The statute of Illinois (Laws 1907, p. 370, sec. 2, Subd. 1, id.; Hurd’s 1915-1916 111. Rev. Stat.,. p. 1528, sec. 208v, Subd. 1), which is the same with respect to insurance policies as the statutory law of Missouri, is with respect to contracts genérally (Mo.

■ Appeal from the Circuit Court of the City of St. Louis.— Hon. Frcmhlin Ferriss, Judge.

<p>1. PLEDGES: Contract Susceptible of Two Constructions: Construed Favorable to Pledgor. In construing a contract of pledge, if it is susceptible of two constructions, that one should be given to it which is the more favorable to the pledgor.</p> <p>2. -: Pledge of Collateral to Secure Note: Sale: Construction of Contract. A contract of pledge of collateral to secure notes held reasonably susceptible of the construction that it was not the intention of tbe parties that a purchaser should have the right to avail himself of any margin or surplus of the collateral in satisfaction of his own unsecured claims against the pledgor.</p> <p>3. EXECUTORS AND ADMINISTRATORS: Insolvent Estate: Pledges: Purchasers of Secured Notes: Applying Surplus to Payment of Unsecured Claims: Illegal Preference. After' the death of the pledgor, the maker of notes, who pledged collateral to secure their payment, defendants could not, by purchasing the notes held by a bank, obtain the benefits of the surplus of the collateral pledged witii the notes in satisfaction, pro .tanto, of their own unsecured claims, thus preferring themselves as creditors of the pledgor’s insolvent estate.</p> <p>4. -: -: -: -: Surplus Becomes Trust Fund for Benefit of Creditors. At the death of the pledgor, the maker of notes, who had pledged collateral with a bank to secure their payment, the bank had possession and control of this collateral as pledgee, but the pledgor retained an interest therein, as to which interest the pledgee.bank became a trustee, and purchasers of the notes and collateral from the bank became, in like manner, trustees with reference to.the interest therein of the estate of the pledgor, then deceased, and upon the pledgor’s death that interest passed to the administrators of the deceased pledgor, and any surplus value in the collateral, over and above that sufficient to satisfy the original debt to the bank, became, in effect, a trust fund to be administered for the benefit of the creditors of the insolvent estates of the deceased pledgor.</p> <p>5. PLEDGES: Pledge of Collateral to Secure Notes: Death of Pledgor: Sale: Surplus Retained by Purchaser: Tender by Administrator: Conversion. Where, when the administrators of the estate of the deceased pledgor of collateral with a bank to secure the payment of his notes undertook to make tender of the amount due on the notes to the purchasers thereof from the bank, they were informed that defendants would not surrender the notes and collateral upon a payment of the original indebtedness, but would hold the collateral to satisfy unsecured claims of the defendants against the estate of the deceased pledgor, such position taken by defendants rendered a proper tender, if made, a vain and idle ceremony, and hence dispensed with the necessity of making such tender, and defendants then placed themselves in the position of wrongfully withholding the collateral for an unlawful purpose, and were guilty of a conversion thereof.</p> <p>-: -: -: --•: Pledgee’s Conversion of Pledged-Collateral: Debt Set Oil Against Damages. A pledgee, when sued .for conversion of the pledged collateral, is entitled to have the debt secured by such collateral set off against the amount of damages recoverable, the pledgor being entitled to recover the actual loss suffered by him by reason of pledgee’s wrongful act, which is the value of the collateral less the amount of the debt.</p>

<p>Appeal from the Circuit Court of the City of St. Louis.— Hon. J. Hugo Grimm, Judge.</p> <p>(1) The instruction in the nature of a demurrer to the evidence ought to have been given for the reason that there was no evidence to establish negligence on the part of defendant in any of the particulars alleged in the petition, nor in any other particular under the circumstances shown in evidence. Near v. Railroad, 261 Mo. 80, 91, 97; Current v. Railroad, 86 Mo. 62. (2) The plaintiff knew that the car had not been inspected by the defendant and therefore he could not rely upon defendant having exercised proper care for his safety, but on the contrary, he assumed the risk of using the handhold, as a matter of law, and the demurrer to the evidence should have been given. Pryor v. Williams, 254 IT. S. 43; Chicago, R. I. & P. Ry. Co. v. Ward, 252 H. S. 18; Ches. & Ohio Ry. v. De Atley, 241 U. S. 310; Ches. & Ohio Ry. v. Proffitt, 241 U. S. 462; Thompson v. Railroad, 133 Minn. 203; affirmed, 242 U. S. 623. (3) The defendant was under no duty to inspect the defective car, as it was not in its service. It had the right to assume that the Chicago, Rock Island & Pacific Railway Company, which had the car in its service, would properly inspect the cars it placed on the switch, as was its duty to do. Plaintiff, therefore, has no right to recover against the defendant, and. the court should have directed a verdict for it. Moynihan v. King’s Windsor Cement & C. Co., 168 Mass. 450; Trask v. Old Colony Railroad, 156 Mass. 298; Coffee v. New York, N. il. & H. R. Co., 155 Mass. 21. (4) The testimony all showed that the defect was a hidden one, that the defendant had no notice of the defect or opportunity to discover it and therefore, it was not liable. Grutridge v. Railroad, 94 Mo. 468; 26 Cyc. 1109, 1110. (5) The fact that plaintiff is'not entitled to recover against the defendant does not mean that he is without remedy against the owner of the car or the Chicago, Rock Island & Pacific Railway Company, which had the car in its service and placed it in a position to cause plaintiff’s injury. Moynihan v. King’s Windsor Cement, etc., Co., 168 Mass. 450; Engel v. New York, etc., Railroad, 160 Mass. 260. (6) The giving of plaintiff’s instruction No. 1 was erroneous because it dircted the jury to find for plaintiff without requiring them to find that defendant was guilty of any of the specific negligence alleged in the petition. The plaintiff must recover, if at ail, on the cause of action alleged in his petition. Current v. Railroad, 86 Mo. 62; Daniel v. Pryor, 227 S. W. 102; Bergfeld v. Kansas City Rys. Co., 227 S. W. 106; State ex rel. v. Ellison, 270 Mo. 654; Degonia v. Railroad, 224 Mo. 589; Lauff: v. Carpet Co., 186 Mo. App. 135; Giles v. Railroad, 278 Mo. 350;' Dority v. Railroad, 188 Mo. App. 365, 174 S. W. 209; Eliot v. Railroad, 204 Mo. 1; Tinkle v. Railroad, 212 Mo. 445; Houck v. Hunter, 225 S. W. 1027. Instructions must not be broader than tbe evidence, no matter how broad the petition, nor shall they be broader than the petition. Gunn-v. Hemphill Lumber Co., 218 S. W. 987; Parker v. Drake, 220 S. W. 1000. (7) Plaintiff’s instruction 1 is erroneous because it ignores the defense of assumption o'f risk which is pleaded in the answer and is a valid defense. Chicago, R. I. & P. Ry. Co., v. Ward, 252 U. S. 18; Daniel v. Pryor, 227 S. W. 102; Ches. & Ohio Ry. v. De Atley, 241 U. S. 310; Jacobs v. Southern R. R., 241 U. S. 229; iMcIntyre v. St. Louis & S. F. Ry. Co., 227 S. W. 1047; Pryor v. Williams, 254 U. S. 43. Plaintiff’s instruction 1 is erroneous because it uses the term “ordinary care” without defining it. Fo3r v. United Rys. Co., 226 S. W. 325; Violette v. Mitchell, 203 S. W. 218; Montgomery v. Railroad, 181 Mo. 508; Turnbow v. Dunham, 272 Mo. 53. (9) Plaintiff’s instruction 2 is erroneous because it authorized and directed the jury to allow plaintiff for loss of earnings which he had suffered, without any limitation whatever on the amount, when the petition claimed only $135 for lost wages. Carney v. United Rys. Co., 226 S. W. 308; Heidbrink v. United Rys. Co., 133 Mo. App. 40; Reynolds v. United Rys. Co., 142 Mo. App. 708; Tinkle v. Railroad,'212 Mo. 445; Smoot v. Kansas City, 194¡Mo. 513; Smith v. Railroad, 183 Mo. App. 180; Smart v. Railroad, 164 Mo. App. 61. (10) The court erred in refusing to give defendant’s requested instruction numbered 3, for if the facts therein submitted were found by the jury, then defendant was not liable under the authorities cited under paragraphs 1, 2, 3 and 4 of this brief. (11) The verdict is excessive and the motion for a new trial ought to have been sustained for that reason. Plaintiff had practically recovered from the injury to his wrist, received by falling from the ear, when he received the injury to his arm and shoulder which caused the permanent injury for which the jury aAvarded damages. The verdict is also excessive because it evidently includes loss of earnings greatly in excess of the amount claimed in the petition. Neff v. Cameron, 213 Mo. 350; Wellman v. Ry. Co., 219 Mo. Mo. 126; Sexton v. Railroad, 245 Mo. 254; Johnson v. Brick Co., 205 S. W. 615; Brady v. Railroad, 206 Mo. 509; Gaty v. United Rvs. Co., 227 S. W. 1041.</p> <p>Appellant’s bill of exceptions shows that appellant at the trial saved no exceptions to the decision of the court ruling on the giving or refusing of instructions, or overruling the motions for new trial and in arrest. There is nothing before this court, therefore, but the record proper. The petition states a cause of action, was supported by evidence, and the judgment is responsive to the pleadings. It should therefore be affirmed. 3 Corp. Jur., sec. 802, p. 895; Idem, sec. 843, p. 954; Elliot’s Appellate Procedure, secs. 785 and 786; State v. Stevens, 242 Mo. 439: State v. Pfeiffer, 267 Mo. 23; State v. Reed, 143 Mo. App. 583; Ross v. Railroad, 141 Mo. 390; Stauffer v. Railroad. 243 Mo. 305; Ross v. Grand Pants Co., 241 Mo. 296; Hubbard v. Gates, 228 Mo. 610; Building Co. v. Hopkins, 204 Mo. 652.-3; Mexico v. Barnes, 158 Mo. App. 612; McKee v. Dry Goods Co., 152 Mo. App. 241; Waller v. Railroad, 83 Mo. 608; Fornof v. Williamsburg, 238 Pa. 6.14; R. R. v. Thompson, 82 Fed. 720. Nor does the act of the stenographer in noting an exception when none Avas really taken (although tolerated and assented to by the practice of the court), nor any rule or custom or practice of the court, dispensing with the taking and saving of an exception at the time of the ruling, satisfy the law, 3 Corp. Jur., sec. 802, p. 898; Green v. Torminal R. R. Asso., 211 Mo. 18; Burdoin v. Town of Trenton, 116 Mo. 358; Kansas City v. Oil Co., 140 Mo. 458; Howes v. Colburn, 165 Mass. 385; Moore v. Royal Oak Lumber Co., 171 Mich. 400; Herman v. Jeffries, 4 Mont. 513; Daniels v. Ins. Co., 2 Mont. 500; Briggs v. Waldron, 83 N. Y. 582; Greer v. Greer et ah, 65 N. Y. S. (58 Hun.) 251; Edmonds v. Inman, 24 S. D. 457; Kennedy & Bro. v. Cunningham, 2 N. E. T. C. 538; Christian v. John, 2 Pa. Super. 78; Lampe v. Rwys. Co., 177 Mo. App. 652.</p>

Louis.— Hon. Frank Landwehr, Judge. (1) That there is not sufficient evidence in said cause to raise an issue in behalf of respondent as to whether or not the automobile was being operated on the occasion in question by the man Jackson by or with the consent of, or under the direction of, this appellant, or for or in behalf of this appellant. Guthrie v. Holmes, .272 Mo. 215.

Louis.— Hon. Franklin Ferriss, Judge. (1) That instruction was erroneous, because the present action is based upon an account stated and the evidence fails to establish the stated account pleaded. Cape Girardeau, etc. R. R. Co. v. Ivimmel, 58 Mo. 83; Missouri Pacific Ry. Co. v. Commission Co., 71 Mo. App. 303; Fisse v. Blanke, 127 Mo. App. 431; Commercial etc. Co. v. Kroell, 85 Mo. App. 340; Columbia Brewing Company v. Berney, 90 Mo.

<p>1. ACCOUNT STATED: “Account Stated” is Account Settled Between Debtor and Creditor. An “account stated” is an account settled between the debtor and creditor therein in which a sum of money or balance is agreed on and an acknowledgment by one in .favor of the other of a balance or sum certain to be due and an express or implied promise to pay the sum by one to the other.</p> <p>2. -: Both Parties Must Agree and' Debtor Must Agree to Satisfy Account Stated. To constitute an account stated, the debtor and creditpr must both agree to the correctness of the account, and in addition thereto the debtor must agree to pay and satisfy the amount agreed upon, and the creditor must agree to accept the payment of the agreed sum in satisfaction of the account.</p> <p>3. -: Agreement May be Proved by Evidence Direct' or Circumstantial. An account stated may be proven by evidence either direct or circumstantial as any other fact may be proven, or, if the party to whom the account is rendered retains it without objection for an unreasonable length of time, his so retaining it will justify the inference that he has approved it, and in such case other proof of his acceptance and agreement is not required.</p> <p>4. -: Delivery of Wheat Receipts to Driver Bringing Wheat Held not to Create Account Stated. Where plaintiff sold wheat to defendant, the delivery of wheat receipts to the driver in charge of the truck bringing the wheat would not establish an account stated; there being no evidence that the driver had any authority to adjust and settle an account or to make any agreement as to the correctness of the weights.</p> <p>'5. -: No Account Stated Held to be Created Between Buyer and Seller of Wheat. Where a farmer during threshing sold his wheat to a mill, the driver of tlie truck carrying the wheat receiving receipts from the mill’s weigher, and such receipts were not delivered to the farmer promptly, and he did not until practically through hauling discover discrepancies between the thresher’s weights and the mill weights, there was no account stated, even though the wheat when it was delivered was commingled with other wheat; it appearing that, when the truck with its contents was weighed, the wheat was emptied, and then the truck alone ' weighed; hence an instruction submitting the theory of an-account stated was properly refused.</p> <p>6. SALES: Seller of Wheat Entitled to Show in Any Manner that Buyer’s Weights were Erroneous. Where there was a discrepancy between thresher’s weights and the weights of a mill which purchased wheat, the seller may show the weight of his wheat in any way permissible under the rules of evidence, and he is not bound to explain anything in connection with the buyer’s manner of weighing the wheat, and an instruction to that effect is not error.</p> <p>7. APPEAL AND ERROR: Verdict on Conflicting Evidence not Disturbed. A verdict on conflicting evidence will not be disturbed by the appellate court.</p>

<p>Appeal from Circuit Court of Pemiscot County. — Hon. Sterling H. McCarty, Judge.</p> <p>(1) We admit that if a railroad be constructed across a traveled road, such as the one involved in this case, then the company must maintain wing fences and cattle guards (and not-gates), even though the road has not been established by public authority, nor funds expended thereon. Sikes v. Railroad, 127 Mo. App. 326; Dow v. Railroad, 116 Mo. App. 555; Roberts v. Railroad, 43 Mo. App. 287. (2) But the principle announced in the cases last cited is not to be applied to a case where, as here, the railroad was established before the alleged public road, and in such case, before the railroad is bound to dispense with its side fences or gates and build cattle guards and wing fences, the road crossing over the right of way of the railroad must be condemned .and paid for. Franklin County v. Railroad, 210 S. W. 874; St. L. & S. F. Ry. Co. v. Gordon, 157 Mo. 71; Grand Ave. Ry. Co. v. People’s Ry. Co., 132 Mo. 34; Kansas Suburban Belt Ry. Co. v. Railway, 182 Mo. 599; Kansas City v. Railroad, 102 Mo. 633. (3) The plaintiff must recover if at all, upon the cause of action pleaded, and not upon some other or different cause of action. Iiufft v. Railroad, 222 Mo. 286; Grisswold v. Haas, 145 Mo. App. 578; Fitch v. Ackerman, 150 Mo. App. 148; Adler & Co v. Railroad, 110 Mo. App. 339; Engle v. Ferrell, 126 Mo. App. 557; Powell v. Shipps, 85 Mo. App. 467. (4) The questions submitted to the jury should have been within the issues made by the pleadings, as well as by the evidence. State ex rel. v. Ellison, 270 Mo. 645; State ex rel. v. Ellison, 176 S. W. 11; Degonia v. Railroad, 124 Mo. 589; Hufft v. Railroad, 222 Mo. 286; Mansur v. Botts, 80 Mo. 668; Bank v. Murdock, 62 Mo. 70.</p>

Clair County. — Hon. ' C; A. Galvird, Judge. (1) The motion to quash the alternative writ of mandamus should have been sustained. A justice of the peace cannot be compelled by mandamus, to grant an appeal or send up transcript to the circuit court, as mandamus will not lie when there is any other specific remedy, and section 7573, Revised Statutes 1909 provides a specific remedy, “by rule and attachment.” State ex rel. Wheeler v. McAuliff, 48 Mo. 112; C. R. I. & P. Ry.

— Hon. Sterling H. McCarty, Judge. (1) The Federal Government was operating the St. Lonis-San Francisco Railway Company from and after December 31, 1917, and the railroad company would be responsible only for acts or things which occurred prior to that date, and the Director General was responsible for the acts and things which might have occurred subsequent to that date.

<p>Appeal from Pemiscot Circuit Court. — Hon. Sterling H. McCarty, Judge.</p> <p>(1) If the contract proved is not the one pleaded, then there is a fatal variance and plaintiff cannot recover. Barber v. Improvement Co., 131 Mo. App. 717; Laclede Construction Co. y. Tudor Iron Works, 169 Mo. 137. (2) The instruction clearly went beyond the allegations in the statement of plaintiff’s cause of action, whicíi is error. The instructions must be within both the pleadings and evidence. State ex rel. v. Ellison, 270 Mo. 645; State ex rel. v. Ellison, 176 S. W. 11; Degonia v. Railroad, 124 Mo. 589; Mansur v. Botts, 80 Mo. 658; Bank v. Murdock, 62 Mo. 70; Hufft v. Railroad, 222 Mo. 286. (3) This submitted a mere conclusion and not a statement of facts to be found by the jury, The instruction is not the law because it did not require a finding by the jury that the defendant was notified to defend the replevin suit. Shultis v. Rice, 114 Mo. App. 274.</p> <p>, (1) Whether there is a partnership is a question of law, therefore ,the statement by the witness and appellant that he and Crice were partners was not for the jury and from this statement the jury would not have been warranted in finding that a partnership existed. Hughes v. Ewing, 162 Mo. 295. (2) The interest in the profits must be mutual; each partner must have an interest in the profits as a principal trader. Campbell v. Dent, 54 Mo. 325; Hughes v. Ewing, 162 Mo. 295; Gill v. Ferris, 82 Mo. 167. (3) If a vendor is in possession of personal property and sells for full value a warranty is implied. Robinson v. Rice, 20 Mo. 229; Hickman v. Dill, 39 Mo. App. 246; Thompson v. Irwin, 42 Mo. App. 403; Ranriey v. Meisenheimer,. 61 Mo. App. 434; Shultis v. Rice,. 114 Mo. App. 274. (4) As the appellant had notice of the replevin suit of J. ■ N. Maxwell v. Ed. Crice, J. W. Manning and Roark, respondent, respondent was entitled to recover the amount of the costs paid by him to the sheriff under the execution for costs in said cduse. 35 Cyc. 480; i Shultis v. Rice, 114 Mo. App. .274; Johnson v. Meyers, Exec’r, 34 Mo. 255,</p>

— TIon. W. 8. C. Walker, Judge. (1) Error to overrule the demurrer to all the testimony. Jones v. Nichols, 216 S. W. 962; Nations v. Pulse, 175 Mo. 86; Epps v. Duckett, 223 S. W. 572; Matlock v. Bighee, 31 Mo. 351. (2) Error to refuse the peremptory instruction. .See authorities cited, and Palmer v. Huckstep, 197 Mo. App. 512; Howard v. Zweigert, 197 S. W. 16 (not off. reported). (3) Error to give instructions for plaintiff.

— Hon. Sterling H. McCarty, Judge. (1) “Whenever the credit of a witness is to be impeached by proof of anything he has said, or declared, or done in relation to the cause, he is first to be asked, upon cross-examination, whether he has said, or declared or done that which is intended to be proved.” Able v. Shields, 7 Mo. 120; Clementine v. State, 14 Mo. 112; Bowman v. Mining Co., 168 Mo. App. 703; Krup v. Corley, 95 Mo. App. 640; Carder v. Primm, 52 Mo.

— Ron. Sterling R. McCarty, Judge. (1) Whether or not there has been an acceptance is a question of fact for the determination of the jury. Ruediger v. Dennis et ah, 201 S. W. 943, 273 Mo. 72; Hollrah-Dieckmann Refrigerator and Fixture Co. v. St. Louis House and Window Cd., 186 Mo.

<p>Appeal from Seott County Circuit Court. — Mon. Frank Kelly, Judge.</p> <p>(1) Where there is an express warranty in the sale of personalty there is no implied warranty as to same matter. Fairbanks Co. v. Basket, 71 S. W. 1113, 98 Mo. App. 53; International Co. v. Smith et al., 17 Mo. App. 264; Advance Co. v. Briggs Company, 206 S. W. 587, 588 (not off. rept.) (2) Where a •contract shows on its face that it composes the entire contract between the parties, it cannot he varied to show an implied warranty. Boulware v. Victor Auto Mfg. Co., 134 S. W. 7, 152 Mo. App. 567; Iron Co. v. Holheck, 82 S. W. 1128, 109 Mo. App„ 179; Fairbanks y: Baskett, 71 S. W. 1113, 98 Mo. App. 53; Wood Co. v. Bobbst, 56 Mo. App. 433; Boyer v. Neel, 50 Mo. App. 26; 17 Cyc., p. 716, par. “C.” (3) Where parties by their contract incorporate therein a conditional warranty, before the vendee can rescind for its breach he must comply with the condition precedent. Jenkins Sons v. Kindle, 380 S. W. 557; Kirk v. Seeley, 63 Mo. App. 262, (4) A vendee can exercise the right of rescission only when the right is exercised immediately and by immediately is meant a reasonable time — not to consider whether to rescind or not — but to do those things necessary to rescind, and must be accompanied by a tender. Sinclair Co. v. McGuire Co., 221 S. W. 378; Emery v.-Boehmer Co.,' 151 S. W. 174, 167 Mo. App. 703; Sterling Silver Co. v. Worrell, 154 S. W. 866, 172 Mo. App. 90; Long v. International Co., 139 S. W. 819, 158 Mo. App. 662; Metropolitan Co. v. Monarch Co., 74 Mo. App. 266; Johnson v. Whitman Co., 20 Mo. App. 102; Steam Heating Co. v. Gas Fixture Co., 60 Mo. App. 153; Kirk v. Seeley, 63 Mo. App. 262; Marth v. Wiskerchen, 172 S. W. 410, 186 Mo. App. 515; St. Louis Co. v. Loevenhart, 190 S. W. 627; Harper v. Wilson, 191 S. W. • 1024; Manley v. Crescent Co., 77 S. W. 489,103 Mo. App. 135. (5) A vendee undertaking to rescind a purchase on the ground that the article is worthless, and who does not plead damages by way of offset, cannot prevail either if he does not sustain his plea of rescission, or if the article, while less valuable than warranted, yet is not worthless, and in either case the vendor is entitled to a directed verdict. Outcault Co. v. Schierbaum, 209 S. W. 982; Riverside Co. v. Bendict Co., 201 S. W. 584; Allaire Co. v. Cole, 187 S. W.'83.6; Emery Co. v. Boehmer Co., 151 S. W. 174,167 Mo. App. 703; Dayton Box Co. v. Danciger, 143 S. W. 855, Í61 Mo. App. 640; Sinnamon v. Moore, 142 8. W. 494, 161 Mo. App. 168. (6) Where the facts are undisputed and lapse of time is such that fair minded men will not differ, it becomes the duty of the court to deciare such as a matter of law, if the delay in rescinding "has been so unreasonable as to deprive the vendee of that right. Emery v. Boehmer Co., 151 S. W. 174, 167 Mo. App. 703; Metropolitan Co. v. Monarch Co., 74. Mo. App. 266; Sterling Silver Co. v. Worrell, 154 S. W. 866, 172 Mo. App. 90; Riverside Co. v. Benedict Co., 201 S. W. 584, 588; Boyer Co. v. City of Milan, 199 S. W. 712; Johnson v. Whitman Co., 20 Mo. App. 102; Steam Heating Co. v. Gas Co., 60 Mo. App. 154; Sinclair Oil v. McGuire Co., 221 S. W. 378. (7) Where vendee claims the absolute right of rescission, but instead of standing on that right and either has the vendor repair the defects, or undertakes tó use the machine after attempting to rescind, the vendee loses his right to rescind, and cannot then later undertake to exercise it. Lawson v.' Williams Co., 122 Mo. App. 484; Sturgis v. Whisler, 130 S. W. 113,145 Mo. App. 148; Faust v. Koers, 86 S. W. 279, 111 Mo. App. 560; Riverside Co. v. Benedict Co., 201 S. W. 584; Block v. Martin, 129 S. W. 715, 150 Mo. App. 82. (8) An instruction on the whole case must be so framed as to justify a recovery on the hypothetical facts therein stated, without excluding from the consideration of the jury the evidence or theory offered by the adverse party. Wood Machine Co. v. Bobbst, 56 Mo. App. 433; St. Louis Carbon Co. v. Loevenhart, 190 S. W. 627; Stepham v. C. B. & Q. Ry., 199 S. W. 273, 274; Daso v. Jefferson City, 189 S. W. 400. (9) Instructions must not change the issues as made by the pleadings, nor widen their scope. Sinnamon v. Moore, 142 S. W. 494, 161 Mo. App. 168; Scrivner v. Mo. Pac. Ry., 169 S. W. 83, 260 Mo. 421; Rawlings v. Frisco Ry., 175 S. W. 935; Moss v. Jacksonville Co., 226 S. W. 592. (10) Where vendor receives goods returned by vendor upon an attempted rescission, but holds them subject to the order and at the risk of the vendee, he does not accept them in satisfaction of the purchase price, but may recover that price. Brown v. Gil-pin, 96 S. W. 669, 120 Mo. App. 130; Sturgis v. Whisler, 130 S. W. Ill; 145 Mo. App. 148. (11) Instruction must be within both the proof and the pleadings, and must not be broader than the proof, though the pleadings would justify broader instructions. Riley v. City of Independence, 167 S. W. 1022, 258 Mo. 671.</p> <p>(1) “Anyone manufacturing and selling a machine is held in law to warrant that the machine is reasonably fit for the ordinary purposes for which such a machine is put upon the market and sold.” Boulware v. Manufacturing Co., 152 Mo. App. 575; Fairbanks, Morse & Co. v. Baskett, 98 Mo. App. 70. (2) Where there is a warranty, either express or implied, in the sale of goods, and a breach of the warranty, the purchaser may rescind the contract and return the goods, or he may retain the goods and show the breach of warranty as a partial or total failure of consideration when sued for the contract' price. Atkins Bros. Co. v. Grain Co., 119 Mo. App. 119; Schoenberg- v. Loker, 88 Mo. App. 387; Brewing Assn, v. McEnroe, 80 Mo. App. 429; Brown v. Wardon, 99 Mo. 564; Branson v. Turner, 77 Mo. 489.</p>

<p>1. CHATTEL MORTGAGES: Amount of Mortgage Due Plaintiff Should be Deducted from Defendant’s Judgment for Value of Property. Where a chattel mortgagee wrongfully took the property from the mortgagor by replevin, the value thereof for which defendant was entitled to judgment was the value of his interest in the property, so that it was error to give judgment for defendant for the full value of the property without deducting therefrom the the amount of the mortgage debt.</p> <p>2. -: Mortgagee Becoming Entitled to Possession Between Filing and Trial is Liable Only for Detention. Where a chattel mortgagee was not entitled to possession of the property at the time he filed an action in replevin whereby he took possession, but he became entitled thereto on the maturity of the mortgage debt before the trial of the action, defendant is not entitled to recover the value of the property, but is only entitled to his damages for the detention of the property from the time it was taken from him until the maturity of the chattel mortgage debt.</p> <p>3. —.-: Chattel Mortgagee Replevying without Foreclosure on Subsequent Breach is Liable for Value Less Mortgage Debt. Where a 207 Mo. App. — 30 chattel mortgagee filed replevin and took possession of the property without excuse before the maturity of the debt, and did not, after the debt matured, foreclose and sell under the terms of the mortgage, but merely retained possession of the property, he is liable to the mortgagor for the value of the property less the amount of the mortgage debt.</p> <p>4. REPLEVIN: Rights of Parties at Time .of Trial Should be Completely Adjusted. In an action of replevin all the rights of the parties as they existed at the time of the trial of the action, and not merely those which existed at the time of the filing of the suit, should be completely adjusted:</p>

' — lion. Sterling Tl. McCarty, Judge. (1) “The action of forcible entry and detainer must he brought against the party in the actual possession of the premises at-the time the suit is instituted.” Orrick v. Public Schools, 32 Mo. 315. “The plaintiff in an action of forcible entry and detainter must show that the defendant was in the possession of the property at the date of the institution of the suit.” Link v. Harrington, 23 Mo. App. 429. See also: Loan v. Smith, 76 Mo.

<p>Appeal from Greene Circuit Court. — Hon. Orin Patterson, Judge.</p> <p>(1) A dividend can be declared only by the board of directors when acting together in a legally assembled meeting, and hence, no one other than the board of directors acting in a subsequent legally assembled meeting can ratify a defectively declared dividend. Sec. 3348’, R. S. 1909; Sec. 6, By-Laws of Defendant; Secs. 516 and '523, Clark & Marshall Corporations; Thompson on Corporations (2 Ed.), sec. 5285; Cook on Corporations (7 Ed.), sec. 545; Grant v. Ross, 37 S. W. 263; King' v. Railroad, 29 N. J. Laws 88; Cuppy v. Ward, 176 N. T. Supp. 237 (5); Hunter v. Roberts Co., 83 Mich. 71; Price v. Mining Co., 83 Mo. App. 476; Hamblock v. Mower Co., 148 111. App. 621; In re Goetz’s Estate (Penn.), 85 Atl. 67; State ex rel. v. Rubber Co., 149 Mo. 202; Zinc Co. v. Boyd, 192 Mo. 613. (2) Until a dividend has been actually set apart by a corporation, it does not become segregated from the corporate property of the shareholders distributively. A dividend is not a debt due a stockholder until it has been properly and rightly declared. Clark & Marshall Corporations, sec. 517; Thompson on Corporations (2 Ed.), sec. 5290; Sanitarium v. McCune, 112 Mo. App. 336; Kidd v. Ford Co., 145 Mo. App. 522, Mc-Laren v. Planing Mill Co., 117 Mo. App. 46; Price v. Mining Co., 83 Mo. App. 476; Fricke v. Angemieir, 101 N. E. 331; King v. Railroad, 29 N. J. Law, -88; Hamblock v. Mower Co., 148 111. App. 621; In re Goetz’s Estate, 85 Atl. 67. (3) Acceptance of dividends unlawfully declared does not constitute ratification. Thompson on Corporations (2 Ed.), sec. 5367; Hilles v. Parrish, 14 N. J. Eq. 388. (4) Cook Corporations (7 Ed.), sec. 545; “The board of directors declare the dividends, and it is for the directors, and not the stockholders, to determine whether or not a dividend shall be declared.” Citing: Sehel] v. Alston Mfg. Co., 149 Fed. 442; Grant v. Ross, 100 Ky. 44, 37 S. W. 263; Hunter v. Roberts, 83 Mich. 63. (5) “Until a dividend of the profits of a corporation has been declared by its board of directors, a stockholder has no legal title to any interest in them. The shares of stock which he holds represents only a right to participate in the profits, and that right, is to be enforced ordinarily only after a dividend of the profits has been declared. Gorgan v. Lee Coal Co., 218 Pa. 386, 67 Atl. 655, 120 Am. St. Rep. 891, 11 Ann. Cas. 838; Hyatt v. Allen, 56 N. Y. 553, 15 Am. Rep. 449; Goodwin v. Hardy, 57 Me. 143, 99 Am. Dec. 758; Phelps v. Farmers’ & Merchants’ Bank, 26 Conn. 269; Cook on Stock and Stockholders and Corporation Law, 4.” (6) Business transacted at a director’s meeting held without notice to all i the directors may be ratified by the directors at a subsequent legal meeting.' The power of ratification is limited, however, to the extent that there can be no ratification unless the person or body making the ratification could in the first instance have authorized the act sought to be ratified. Clark & Marshall Corporations, Secs. 682, 714; 10 Cyc. 1072 (6) Citing: Calumet Co. v. Printing Co., 144 Mo. 331; Dillon Municipal Corporations (5 Ed.), sec. 799; Thompson Corporations (2 Ed.), sec. 1165 and 1168; Taymouth v. Koehler, 35 Mich. 27; State ex rel. v. Milling Co, 156 Mo. 634; Kroffe v. Springfield, 86 Mo. App. 530; Johnson v. School District, 67 Mo. 319. (7) A dividend can be declared only by the directors acting together in a legal meeting, and hence, their defective action can be ratified, if at all, only in a regularly assembled meeting and not otherwise. Thompson Corporations (2 Ed.), secs. 805, 1069, 1072 and 1073; Clark & Marshall Corporations, secs. 677, 728, 729; Dillon Municipal Corporations (5 Ed.), sec. 501; Johnson v. School District, 67 Mo. 319; Calumet Co. v. Printing Co., 144 Mo. 338; Zinc Co. v. Boyd, 192 Mo. 613; State v. Perkins, 90 Mo. App. 610; Cann v. Rector, etc., Ill Mo. App. 189; Coleman v. Insurance Co., 273 Mo. 627; Hill v. Mining Co., 119 Mo. 29 (VI); Lyons v. Corder, 253 Mo. 551.</p>

— IIon. Sterling H. McCarty, Judge. (1) If the court was right in overruling the demurrer to the evidence, it was certainly a question of fact whether or not Ogden was a station within the meaning of the law, and whether or not it could he fenced without endangering the life of the employees of defendant and without inconvenience to the public doing business with the company, and this question must be submitted under proper instructions.

— Hon. Joseph D. Perkins, Judge. (1) The court erred in finding the issues for the plaintiff Long as to defendant Leroy S. Dewey, because the evidence, uncontradicted, shows that said defendant was an accommodation indorser for the payee Long, the ' plaintiff below, at the solicitation of said plaintiff; and that said endorsement was given without consideration, bv reason of which plaintiff cannot recover against the defendant L. S. Dewey.

— Hon. Grant Emerson, Judge. A corporation chartered by a foreign State is a foreign corporation and is liable to attachment as a nonresident debtor, even though it may have an officer and doing business in the State in which the attachment is issued. City of St. Louis v. Wiggins, 40 Mo. 580; 1st Shinn Attachment, section 105; 6 Corpus Juris 51.

— Hon. L. B. Wood-side, Judge. (1) Where a real estate broker bottoms bis action for commissions on a contract he cannot, on failing to prove his contract, recover on qibantum meruit. Detheraige Lumber Co. v. Snyder, 65 Mo. App. 568; McDonald v. Stevinson, 104 Mo. App. 191; Wade v. Nelson, 119 Mo. 278. (2) Wheré a plaintiff pleads a cause of action on an express contract, he cannot recover on quantum meruit. Davis v. Drew, 129 S. W. 255; Michael v. Kennedy, 148 S. W. 983.

— Eon. Grant Emerson, Judge. (1) In the case of O. C. Cline, respondent, v. D, W. Mock and H. L. Knight, appellants, Kansas City Court of Appeals, 150th, at page 431, Syllabi 3: “Implied Warranty” — Seller’s Knowledge of Buyer’s Purpose— Hidden Defects. — Where the seller knew before the sale, the special use to which the buyer intended to put the article sold, an implied warranty arose on the part of the seller that the article was free from hidden defects which would…

— Hon. J. D. Perkins, Judge. (1) The burden was on the plaintiff to prove by the preponderance or greater weight of evidence, that, at the time of the accident .complained of, the driver of the Buick car, Harold Sigman, was employed by the defendant, Cardwell; that he was his servant, or agent, in driving said car, and was, at said time, acting within the scope of said employment. These matters were put in issue by the defendant by his answer, a general denial.

<p>Appeal from Circuit Court of Howell County. — Hon. E. P. Dorris, Judge.</p> <p>(1) Plaintiff’s petition does not in any way connect liis fall from the hoard with the negligence alleged. This questio'n may he raised for the first time on appeal. Carpenter v. St. Joseph, 263 Mo. 705, 711; Chandler v.- Railroad, 251 Mo. 592-599; Luck Const. Co. v. Railroad, 207 S. W. 840; McQuitty v. Wilhite, 218 Mo. 586, 591. (2) Plaintiff’s testimony develops the fact that he, with his fellow workmen, contracted to load the ties for a fixed compensation, retaining control of the number of men employed, the execution of the work, the time to he consumed in the loading, and they were not subject to the orders of this defendant in respect to the details of the work. Press v. Penny, 242 Mo. 98, 109; Crenshaw v. Ullmann, 113 Mo. 633, 638; Long v. Moon* 107 Mo. 334, 339; Gayle v. Foundry Co., 177 Mo. 472, 446; Peters v. Railroad, 150 App. 721, 735; O’Hara v. Gras Light Co., 131 App. 428, 435. (3) Or if, on any possible theory, it can be held that it was the duty of defendant to furnish a run way, then the selection thereof was made by the plaintiff or his fellow servant, it was such a selection as defendant might reasonably have left to his choice and dscretion, and his injury being the result of his selection the defendant is not liable. Williams v. Ranson,- 234 Mo. 55; Forbes v. Dunnavant, 198 Mo. 193, 208; Steffenson v. Roehr Co., 136 Mo. App. 225, 228; Henson v. Packing Co., 113 Mo. App. 618, 621; Kellerman v. Telegraph Co., 189 Mo. App. 506; Phipps v. Pryor, 195 S. W. 532, 535; Herbert v. Wiggins Ferry Co., 107 Mo. App. 287; Hulse v. Telephone Co., 164 Mo. App. 126; Mann v. Const. Co., 151 Mo. App. 586; Humphreys v. Lusk, 196 Mo. App. 442; Powell v. Walker, 185 S. W. 532.</p>

— Hon. W. 8. G. Walker, Judge. Because respondent is a foreign corporation, and there being no evidence that he had complied with the laws of this State, it was unable to institute or maintain this action. R. S. 1909, sec. 3040; Amalgamated etc., ■ Co., v. Mining Co., 221 Mo. 7.

— lion. E. M. Bearing, Judge. It is well settled that where an injury complained of may have resulted from several causes, any one of which the party sued is not liable for, then it is incumbent on the party suing to show with reasonable certainty that the cause for which the party is liable produced the result. Plaintiff wholly failed to so certainly prove that defendant killed deceased by striking or choking. Smart v. Kansas City, 91 Mo.

<p>1. INSURANCE: Burden on Life Insurer to' Establish■ Defense of Misrepresentation. The burden was on defendant life insurer to establish its defense of misrepresentation of matters which con-tributed to the death of insured.</p> <p>2. TRIAL: On Demurrer to Evidence, Plaintiff Entitled to Benefit of Every Reasonable Inference. Plaintiff, on demurrer to her evidence, is entitled to the benefit of every reasonable inference deducible from the evidence, and such reasonable inferences ought to - be taken as conceded facts, and those favorable to defendant are • to be ignored.</p> <p>3. INSURANCE: Issues Raised on Life Insurer’s Demurrer to Beneficiary’s Evidence Properly Submitted to Jury. In an action on a life policy, defendant insurer setting up misrepresentations of insured that be bad never raised or spat blood, issues raised* by defendant insurer’s demurrer to plaintiff’s evidence held, properly submitted to the jury, in view of the evidence.</p> <p>4. APPEAL AND ERROR: Finding on Substantial Evidence not Disturbed. It is not the province of an appellate court to pass on the weight of the evidence, such duty being on the triers of the facts; and, where there is substantial evidence to support verdict, the finking will not be disturbed.</p> <p>5. INSURANCE: Failure to Tender Back Premiums not Evidence of Waiver of Defense of Misrepresentation. In view of Revised Statutes 1919, section 6145, defendant life insurer’s failure to tender back premiums, held not evidence of waiver of the defense of misrepresentation in obtaining the policy.</p> <p>6. -: Admission of Liability by Life Insurer Manifested Intention to Waive Defense of Misrepresentation. Where defendant life insurer, with knowledge of all the facts pertaining to alleged misrepresentations by insured, admitted its liability on the policy after insured’s death, its conduct manifested intention to waive defense based on insured’s misrepresentations.</p> <p>7. -: Abandoned Answer of Life Insurer Admitting Liability, Admissible on Issue of Waiver of Defense. In an action on a life policy, where defendant set up misrepresentations by insured that he had never raised or spat blood, defendant insurer’s abandoned answer, admitting liability, etc., held admissible as evidence tending to establish waiver of the defense of misrepresentations; defendant insurer being entitled to explain the circumstances under which the answer was filed, making the issue of waiver for the jury with the burden of plaintiff beneficiary.</p>

— IIon. Frank Kelly, Judge. (1) An instruction is erroneous 'which, singles out facts in the case, and gives improper prominence and significance to them. State v. Shaffer, 253 Mo. 320, 161 S. W. 805; Zander ,v. Transit Co., 206 Mo. 445, 103 S. W. 1006; Tibbe v. Kamp, 154 Mo. 545, 54 S. W. 879; Liese v. Meyer, 143 Mo*. 547, 45 S. W. 282; Landrum v. Railroad, 132 Mo.

— Hon. Almon Ing, Judge.. (1) The deed of trust from Drees Hardware & Furniture Company to interpleader R. I. Cope, was fraudulent and void because said Company did not comply with the terms of the “Bulk Sales Law” in making said deed. See LaAvs of Missouri, 1913, page 163, 164, 165. (2) The Bulk Sales Law applies to deeds in the nature of an assignment for the benefit of creditors.

<p>Appeal from Butler Circuit Court. — Hon. Almon Ing. Judge.</p> <p>(1) The court erred in permitting the city ordinance to be read in evidence to the jury. This ordinance-only made it a misdemeanor for the engineer or one having charge of an engine to fail to ring the bell or sound the whistle before crossing the street. Plaintiff does not base his cause of action on sec. 3140, R. S. 1909. Yandeventer v. Railroad, 32 N. E. 636; Beisigegel v. Railroad, 40 N. Y. 9; Weber v. Railroad, 58 N. Y., 459; Biggs v. Railroad, 72 N. Y., $6.. (2) Where the view is obstructed it is the duty of one about to cross a railroad track at a public crossing to stop, look and listen before attempting to cross the track, and unless he does so he cannot recover, although the engineer fails to ring, the bell or sound the whistle. Harlan v. Railroad Companv, 64 Mo. 480; Stepp v. Chicago R. I. and P. Ry. Co., -85 Mo. 229; Kelly v. Chicago A. R. Co., 88 Mo. 534; Damrill v. St. Louis, S. F. Railroad Co., 27 Mo. App. 202; Hook v. Missouri Pacific R. R. Co., 162 Mo. 569; Draim v. Railroad Co., 10 Mo, App. 531; Schmidt v. Railroad Company, 191 Mo. 215; Farris v. Railroad, 167 Mo. App. 392; Connor v. Railroad Co., 149 Mo. App. 687; Creen v. Mo. P. R. R. Co., 192 Mo. 131; Tanehill v. K. C. Railway, 213 S. W. 818. (3) Where the plaintiff is injured at the railroad crossing and the accident did not happen in the nighttime, and happened at a time and place where he could see and and advise himself of the presence and speed of a train, he cannot rely upon the presumption that the engineer will obey the speed ordinance of the city. If he is alive and testifies on the trial, it is his duty to testify as to whether or not he did rely upon the fact that the engineer would obey the speed ordinances; and unless he does so testify he cannot recover. Mockowik v Kansas City R. R. Co., 196 Mo. '550, 571, citing Hutchinson v. Railroad, 161 Mo. 254; Weller v. Railroad, 164 Mo. 180; Ariska v. Railroad, 180 Mo. 168; Sullivan v. Railroad, 117 Mo. 214; Connor v. Railroad, 149 Mo. App. 675, 687; Creen v. Railroad, 192 Mo. 131; Magininnis v. Railroad, 182 Mo. App. 694; Paul v. United Ry., 152 Mo. App. 577; Products Co. v. W. Ry., 185 Mo. App. 316; Paul v. Railroad, 152 Mo. App. 587. (4) The verdict-was against the law as declared in instruction “No. 4,” and therefore, the court should have set it aside and granted a new trial. Creen v. Railway, 192 Mo. 131; Connor v. Railroad, 149 Mo. App. 687; Farris v. Railroad, 167 Mo. App. 392; Kelsey v. Railroad, 129 Mo. 362. (5) The proof in this case on the part of the plaintiff clearly shows that he did not stop, look or listen for the approaching train after he passed the engine on the side track; he had a clear view for several hundred feet south when he was fifteen feet from the track the passenger train was on, and even if he had sworn that he did look and did not see, it wonld have made no difference. Hook, v. Railroad, 162 iMo. 580-581; Kelsey v. Railroad, 129 Mo. 362; Hayden v. Railroad, 124 Mo. 572-573.</p> <p>Having stopped, looked and listened and having not heard or seen any train approaching, nor heard any bell rung nor whistle sounded, he had a right to proceed across, believing that there was no other train in that vicinity, and he was acting as an ordinarily prudent person would have acted under the same or similar circumstances and was not guilty of negligence. Stepp v. St. Louis-San Francisco Ry. Co., 211 S. W. 730; Swigart v. Railroad, 196 Mo. App. 471; Underwood v. Railroad, 190 Mo. App. 407,182 Mo. App. 252; Campbell v. Railroad, 175 Mo. 161; Moore v. Railroad, 157 Mo. App. 65; Elliott v. Railroad, 105 Mo. App. 523; Barrett v. Delano, 187 Mo. App. 501; Osborn v. Eyster, 192 S. W. 142; Leuders v. Railroad, 253 Mo. 97; Weeler v. Railroad, 120 Mo. 635; Petty v. Railroad, 88 Mo. 306; Donohue v. Railroad, 91 Mo. 357; Kannayde v. Railroad, 45 Mo. 255; Montgomery v. Railroad, 181 Mo. 477.</p>

— Hon. W. S. ' G. Walker, Judge. (1) It is the kind of policy and not the character of the company that determines whether the transaction is an old line policy of insurance or a fraternal policy of insurance. It is our contention that the court erred in holding that the certificate in this case comes under the fraternal insurance laws of this State. Ordelheide v. M. B. A., 268 Mo. 399; Baltzell v. Modern Woodmen, 98 Mo. App. 153; ITerzberg v. Brotherhood, 110 Mo. App. 328.

— Hon. E. M. Deering, Judge. (1) Secondary evidence can be introduced only upon proof of tbe loss, destruction or absence from tbe jurisdiction of tbe court of tbe original writing. State v. Sibley, 207 S. W. 806. And then only upon proof that an unavailing effort lias been made to obtain tbe original. The mere fact that they could not compel tbe production of tbe original, would not avoid tbe necessity of at least making tbe effort to secure it.

— lion. J. G. Sheppard, Special Judge. (1) A legal cause of action must be stated. Jones v. Fuller, 38 Mo. 363. (2) A party cannot declare upon one cause of action and recover upon another and different cause. This rule is fundamental. Henry County v. Citizens Bank, 208 Mo. 209; Clements v. Yeates, 69 Mo. 623; Harris v. Railway, 37 Mo. 307; York. v. Bank, 105 iMo. App. 127.

<p>Appeal from Circuit Court of New Madrid County.— IIon. Sterling H. McCarty, Judge.</p>

— Hon. W. 8. C. Walker, Judge. (1) Tbe respondent cannot maintain this action, because tbe matters bere relied upon were proper defensive matters in tbe. replevin suit between tbe same parties.. It matters not now whether the decision and judgment of the justice court was right or.wrong, it was a final judgment between the same parties unappealed from, and respondent’s alleged cause of action here is res adjudicata. Roth Tool Co. v. Spring Co., 146 Mo.

<p>1. WITNESSES: Declarations of Husband to Wife as to Income are Incompetent in Separate Maintenance Suit. On a hearing for the allowance of support and suit money pending determination of a' suit for separate maintenance, it was error to permit the wife to testify to declarations by her husband to her as to the amount of his income when no third person was present, since such communications are confidential.</p> <p>2. HUSBAND AND WIFE: On Motion for Temporary Support, Wife must Establish Prima-facie Cause of Action. At the hearing on a wife’s motion for temporary support and suit money pending a final hearing of an action for separate maintenance, a wife must' make a prima-facia showing that she was entitled to the relief asked for in her petition, which, under Revised Statutes 1919, section 7314, requires proof of cessation from cohabitation without good cause, intention on deserter’s part not to resume cohabitation, and absence of complainant’s consent to the separation.</p>

— Hon. Joseph D. Perhins, Judge. (1) Care should always be observed to avoid going into collateral issues: first, because the adverse party is not advised by the pleadings 'to meet any other issues than those therein presented; second because extraneous issues needlessly consume the time of the court and have a tendency to confuse the minds of the jurors. Council v. St. L. & S. F. R. R. Co., 123 Mo. App. 432, 1. c. 442.

— Hon. L. B. Woodside, Judge. (1) Where a homestead is part only of an estate held in common, it is subject to partition. E. S. 1909, sec. 6713; Becker v. McLinn, 107 Mo. 277. (2) The primary duty of the court is to set the homestead off in kind; but when this cannot be done the statute specifically directs the procedure and limits it with care.

<p>Appeal from the Webster Circuit Court. — Hon. G. H. Shmker, Judge.</p> <p>(1). The plaintiff was guilty of negligence in leaving the sidewalk and walking several hundred feet out in the roadway of the street on a very dark night and without once looking back, when to look was to see the lights of the approaching automobile, and without paying any heed or attention to her surroundings, or to her own safety. She knew that automobiles, jitneys and street cars frequently ran on this street both day and night, and plaintiff testified that she never looked back after she went into the roadway. Her contributory negligence is clearly established. Theobald v. Transit Co., 191 Mo. 429; Lowry v. Smith, 198 S. W. 437 (Mo. App.); Petty v. Railroad, 179 Mo. 674; Minor v. Stevens, 42 L. R. A. (N S.) 1178; Berry on Automobiles, see. 214 apd 215; McCauley v. Transit- Co., 179 Mo. 590; Owens v. Railroad, 188 Mo. App.- 454; Engleking v. Railroad, 187 Mo. 164; Willis v. Harby, 144 N. Y. Supp. 154; Mills v. Powers, 102 N. E. 912; Harrigan v. Wright, 63 Atl. 234; Wilkins v. Transp. Co., 101 N. Y. Supp. 650. (2) When to look is to see, the injured person is held to have seen. The lights on the automobile were burning and plainly visible to plaintiff if she had looked. McGee v. Railroad, 214 Mo. 545; Barrie v. Transit Co., 102 Mo. App. 91 and 93; Sanguinette v. Railroad, 196 Mo. 495; Hook v. Railway, 162 Mo. 580; Pennell v. Railroad, 153 Mo. App. 570; Dyrcz v. Railroad, 238 Mo. 47; Markowitz v. Railway, 186 Mo. 357; Kinlen v. Railroad, 216 Mo. 158. (3.) All witnesses who testified on the subject, Dr. Pipkin, Carl Thomas and Claude German saw the automobile lights. What they saw, the plaintiff could have seen if she had looked. Burge v. Railroad, 244 Mo. 94; Payne v. Railway, 136 Mo. 384; Vandeventer v. Railroad, 177 S. W. 838; Carlson v. Railway, 187 S. W. 845; Osbom v. Railroad, 179 Mo. App. 259. (4) The action being based on the Humane Rule, under the facts conceded and proved in the case at bar, plaintiff concedes that she was guilty of negligence in placing herself in a place of danger, and it was error to submit that issue to the jury. Clark v. Railroad, 242 Mo. 605; Webb v. Railroad, 196 S. W. 88 (Mo. App.); Laughin v. Railroad, 144 Mo. App. 205; Eiseman v. Griffith, 181 Mo. App. 186; Strauss v. Railroad, 166 Mo. App. 155; O’Farrell v. Railroad, 157 Mo. App. 619; Johnson v. Railroad, 203 Mo. 415; McGee v. Railroad, 214 Mo. 541; Whitesides v. Railroad, 186 Mo. App. 617-618; Kreymeyer v. Transit Co., 220 Mo. 650. When a different rule prevails is clearly illustrated in the following cases: O’Keefe v. Railways Co., 124 Mo. App. 613; Davis v. Railroad, 155 Mo. App. 318. (5.) The Humane Rule only applies and authorizes a recovery where the injured party is ighorant of, or oblivious to impending danger. And where the action is predicated on a breach of humane duty the burden is on the plaintiff to show affirmatively, that she was in imminent peril, was unconscious 'thereof, and that, had the defendant been in the exercise of ordinary care, he would have seen plaintiff and had knowledge of such facts in time, thereafter, to avert the injury with the means at hand and with safety to the occupants of the automobile. Ellis v. Railway, 234 Mo. 672; Knapp v. Dunham, 195 S. W. 1062; Miller v. Harvey, 199 Mo. App. 633; Williamson v. Railroad, 139 Mo. App.' 492; Keele v. Railroad, 151 Mo. App. 377; Burde v. Railroad, 123 Mo. App. 634; Lewis v. Railway, 181 Mo. App. 423; England v. S. W. Ry. Co., 190 S. W. 32; Pope v. Railroad, 242 Mo. 238; Kinlen v. Railroad, 216 Mo. 164; Pennell v. Railroad, 153 Mo. App. 571; Moore v. Railroad, 176 Mo. '544; Yeatch v. Railroad, 145 Mo. App. 238; Webb v. Railway, 196 S. W. 87; Guyer v. Railroad, 174 Mo. 350. (6.) The Humane Rule does not apply in cases where the driver had no warning that the party injured was oblivious to the situation, or that she was about to put herself in a position bf danger. Ellis v. Railway, 234 Mo. 672; Knapp v. Dunham, 195 S. W. 1062; Miller v. Harvey, 199 Mo. App. 633; Williamson v. Railroad, 139 Mo. App. 492; Keele v. Railroad, 151 Mo. App. 377; McGee v. Railroad, 153 Mo. App. 498; Pennell v. Railroad, 153 Mo. App. 571; Pope v. Railroad, 242; Mo. 239; Kinlen v. Railroad, 216 Mo. 164; Haffey v. Railway, 154 Mo. App. 495; Shelton v. Railroad, 167 Mo. App. 410; Schupp v. Railroad, 166 Mo. App. 601; Sites v. Knott, 197 Mo. 712; Draper v. Railway, 199 Mo. App. 489; Wasmer v. Railroad, 167 Mo. App. 219; Reeves v. Railroad, 251 Mo. 178; Degonia v. Railroad, 224 Mo. 594; Yeatch v. Railroad, 145 Mo. App. 239; Reno v. Railroad, 180 Mo. 488.</p> <p>(.1) The proximate cause of plaintiff’s injury was defendant’s negligence in operating his automobile as alleged and established by the evidence. Solomon v. Dun • can, 194. Mo. App. 517; Knoxville Ry. and Light Co. v. Vaughilder, 132 Tenn. 487, 178 S. W. 1117; West Court Co. v. White, 130 Tenn. 530, 172 S. W. 301; Lawson v. Fon du Lac, 141 Wis. 57, 123 N. W. 629; McManus v. Wolverton, 10 N. Y. Sup. 545; McDonald v. Yoder, 101 Pac. 468; Felver v. Railroad, 216 Mo. 195, 212. (2) Plaintiff was not shown guilty of such contributory negligence as would bar her recovery as a matter of law. Dignum v. Weaver, 204 S. W. 566; Lowery v. Smith, 198 S. W. 437; Meenach v. Crawford, 187 S. W. 879; Sullivan v. Chauvenet, 186 S. W. 1090; Frankel v. Hudson, 271 Mo. 503; Osterman v. Implement Co., 255 Mo. 128; Caradine v. Ford, 195 Mo. App. 684; Hodges v. Chambers, 171 Mo. App. 563; Bongner v. Zeigenhein, 165 Mo. App. 328; Wyler v. Ratican, 150 Mo. App. 474; Felver v. Railroad, 216 Mo. 195, 212. (3) Under the .evidence it was clearly a question for the jury whether or not defendant was guilty of negligence under the humanitarian rule. Rowe v. Hammond, 172 Mo. App. 203; Lowery v. Smith, 198 S. W. 439; Frankel v. Hudson, 196 S. W. 1123; Grouch v. Heffner, 184 Mo. App. 372; Hodges v. Chambers, 171 Mo. App. 563; Wyler v. Ratican, 150 Mo. App. 474. (4) Under the evidence, plaintiff was entitled to recover under the humanitarian rule, as defendant, by the exercise of ordinary care would have discovered plaintiff in a position of peril, in time, by the exercise of ordinary care, to have avoided in jurying her. Taylor v. Met. St. Railway, 256 Mo. 213; Ostermeier v. Implement Co., 255 Mo. 128; Clark v. Railroad, 242 Mo. 570; White v. Railroad, 202 Mo. 560; Rowe v. Hammond, 172 Mo. App. 203; McDonald v. Yoder, 101 Pac. 568; McManus v. Wolverton, 19 N. Y. Sup. 545. (5) Specific acts of negligence — under statute or common law — together with negligence which invoke the humanitarian rule, may be pleaded in one count; and it is proper for the court to instruct the jury on both theories. Taylor v. Met. St. Railway, 256 Mo. 191; Fleming v. Railroad, 263 Mo. 189; Farrer v. Railroad, 249 Mo. 210; Clark v. Railroad, 242 Mo. 570; Nivert v. Railroad, 232 Mo. 636; Murphy v. Railroad, 228 Mo, 123; Krehmeyer v. Transit Co., 220 Mo. 639; White v. Railroad, 202 Mo. 560; Haly v. Railroad, 197 Mo. 23; Ropp v. Transit Co., 190 Mo. 144; Hoffinger v. Young, 179 S. W. 747; Owen v. Delano, 194 S. W. 756; Yaughn V. Lemp Brewing Co., 152 Mo. App. 48; De Rousee v. . . West et al., 200 S. W. 783. (6) Plaintiff is not required to allege, nor is the jury required to be instructed, that' plaintiff was unconscious of her danger, and that defendant by the exercise of ordinary care could have seen that she was unconscious thereof. Morgan v. Railroad, 159 Mo. 262; Kinder v. Railroad, 216 Mo. 164; Bybee v. Dunham, 198 S. W. 190; Hoffinger v. Young, 179 S. W. 747-749; Ottofy v. Trust Co., 196 S. W. 428; Unenter v. Railroad, 108 Mo. 18; Riska v. Railroad, 180 Mo. 168; Chamberlain v. Railroad, 133 Mo. 587, 595, 602. (7) Plaintiff’s instruction No. 1. followed the petition, was authorized by the evidence, and properly submitted to the jury the case made by plaintiff under the specific allegations of negligence. Cool v. Peterson, 189 Mo. App. 725; Sapp v. Hunter, 134 Mo. App. 685. (8) Plaintiff’s instruction No. 2, properly submitted her case under humanitarian rule. Hoffinger v. Young, 179 S. W. 747, 749; Ottofy v. Trust Co., 196 S. W. 428; Murphy v. Eailroad, 228 Mo. 70; Hall v. Eailroad, 219 Mo. 577, 591; ' Vaughn v. Lemp Brewing Co., 152 Mo. App. 48; Guenter v. Eailroad, 108 Mo. 18; Eislca v. Eailroad, 180, Mo. 168; Chamberlain v. Eailroad, 133 Mo. 587, 595, 602; Eppstien v. Eailroad, 197 Mo. 736; Eayburn v. Eailroad, 187 Mo. 572; Eapp v. Transit Co., 190 Mo. 144; Morgan v. Eailroad, 159 Mo. 270. (9) Plaintiff’s fifth instruction properly submitted the law relative to the right of plaintiff and defendant on the public highway, and was not an abstract statement. Ottofy v. Trust Co., 196 S. W. 428; Dignum v. Weaver, 204 S. W. 566; Caradine v. Ford, 195 Mo. App. 684; Hodges v. Chambers, 171 Mo. App. 573; Wyler v. Eatican, 150 Mo. 474; Felver v. Eailroad, 216 (Mo. 195, 212; Eapp v. Eailroad, 190 Mo. 160; Kennayde v. Eailroad, 45 Mo. 255, 262.</p>

— Hon. Chas. L. Henson, Judge. (1) One whose legal right has been violated is entitled to recover at least nominal damages though no actual damages are shown. King v. .City of St. Louis, 250 Mo. 501; Rourke v. Holmes Ry. Co., 181 S. W. 77; Tracy v. Buchanan, 167 Mo. App. 432; Lambert v. Judge & Dolph Drug Co., 119 Mo. App. 693.

<p>Appeal from McDonald Circuit Court. — Hon. G. L. Henson, Judge.</p> <p>(1) All writs and processes issued out of the court of record shall run in the name of the State of Missouri and shall be tested by the clerk of the court from which the same shall be issued and sealed with the judicial seal of such court. R. S. 1919, sec. 1209; Const, of Missouri, sec. 38, art. 6; 1 McQuillins Missouri Practice, sec. 217; Smith Heddins & Co. • v. Hackley, 44 Mo. App. 614, 618. (2) A defective writ successfully assaulted by motion to quash, interposed in due season is the same as no process at all, the omission of the attestation of any writ is a serious omission and has been held to render the writ absolutely void. Smith, Heddings & Go. v. Hackley, 44 Mo. App. 619; Wade on Attachments, sec. 121. (3) Where the writ is not signed by the officer issuing it, it is void. Mathews v. Ausley, 31 Ala. 20; Wales v. Clerk, 43 Conn., 183; Wade on Attachment and Garnishment, secs. 118 & 1822; 40 Mo. App. 113. (4) Not only must process be serv.ed in the manner prescribed by law, but. the process itself must be the mandate of an officer authorized by law to issue or require it to- be issued. “The stream cannot rise higher than its source.” Williams v. Monroe, 125 Mo. 585. (5) Although the record of the court of general jurisdiction recites that defendant has been duly served with process, it is competent to overthrow such recital by showing by other portions of the record of equal force and dignity that such recital of service is not true. Cloud v. Pierce City, 6 Mo. 357; Laney v. Garbee, 105 Mo. 355; Milner v. Shipley, 94 Mo. 106; Bell v. Brukmann, 123 Mo. 270; Freeman on Judgments (4 Ed.), sec. 125; Higgins v. Beckwith, 102 Mo. 456; Williams v. Monroe, 125 Mo. 584; State ex rel. v. Fisher, 230 Mo. 325. (6) A summons issued without the seal of the court is void. Choate v. Spencer, 20 L. R. A. 424; Stevens v. Franklin County, 81 U. S. (14th Wall.) 15; Tork v. Texas, 137 U. S. 15. (7) Failure of clerk to sign summons invalidates it. Shoeman v. Hurd, 20 Mont. 558; 52 Pac. 558; In re Wall, 92 Pac. 785; Slayton v. Newcomer, 6 Ark. 451; Woolford v. Dugan, 2 Ark. 131; Rose-man v. Miller, 84 111. 297. (8) Where a statute specifically prescribes the character and manner of the process, it must be strictly followed. Hyde v. Goldby, 25 Mo. App. 29. (9) The court has no jurisdiction of the defendant until a legal summons is served. The defendant cannot be put to the costs and trouble of appearing in court until served with a summons which complies with the specific provisions of the law as enacted by statute, and by the provisions of the State Constitution. Choate v. Spencer, 13 Mont. 127, 20 L. R. A. 424, 32 Pac. 651, 20 Mont. 555, 52 Pac. 558;' Kipp v. Burton, 63 L. R. A. 325; Coffin v. Bell, 22 Nev. 185,- 37 Pac. 240. (10) Void process is defined to be such as was issued without power in the court to award it, or which the court has not acquired jurisdiction to issue, in the particular case, or which fails in some material respect to comply with the requisite form of legal 'process. Irregular process is such as a court has general jurisdiction to issue but which is unauthorized in the partieular ease by reason of tbe extrinsic or non-existence of' . some fact or circumstance rendering it improper in such case.</p>

— Hon. A. W. Thur- ' man, Special Judge. (1) It is the duty of one on a traveled street in a city to use ordinary care for his own safety, “to use his God given senses.” Coming up to and proceeding to cross an intersecting street without looking or st> much as thinking of possible cross traffic, is a much negligence on the part of the plaintiff as of the defendant; it is just the very negligence plaintiff is charging defendant with, a plaintiff so guilty of contributory…

<p>1. FRAUDULENT CONVEYANCES: Buyer of Goods, Sold Without Compliance with Bulk Sales Law, Could not Complainn of Execution Sale of Goods in Action Against Seller on Ground of Invalidity of Attachments Purchaser of merchanndise at a sale falling within the Bulk Sales Law, without requirements of such law being complied with, could not complain of execution sale of the property in an action against seller by seller’s creditor, on the ground of the invalidity of attachment of-the property, where no question of limitation was involved.</p> <p>2. -: Sale of Restaurant Fixtures Held not Within Bulk Sales Law. The sale of restuarant fixtures such as tables, chairs, counters, ice boxes, etc., held not within the Bulk Sales Law.</p> <p>3. EVIDENCE: Former Owner’s Testimony as to Value of Secondhand Soda Fountain Admissible. In action for conversion of soda fountain, testimony by former owner as to the cost thereof when new, and as to what he paid for it and received for it, held admissible in absence of showing that it had a general market value.</p> <p>4. -: Best Obtainable Evidence as to Value Admissible, where Property has no General Market Value. Where property has no general market value, the best obtainable evidence as to its value is admissible.</p>