Volume 208 — Missouri Appeal Reports

— Hon. E. P. Dorris, Judge. The court committed error in rendering a judgment or pretended judgment against defendant, city of Willow Springs, for the reason that the petition, or pretended petition, and application states no cause of action against the city of Willow Springs and the evidence fails to disclose any condition that the city of Willow Springs is hound to or has any power to abate; that said petition is not against any officer of, the city of Willow Springs…

— Hon. Guy D. Kirby, Judge. (1) In 1 Freeman on Executions, sec. 73a, under “Classification of Grounds for Vacating an Execution,” it states as one ground: “When no writ could properly issue at the time of the issuance of the writ in question . . .” “Writs issued on valid judgments hut at a time when the right to execution had not accrued . . .” (2) The judgment is not final for the purpose of collecting the costs under execution until after the motion for new trial is…

<p>1. APPEAL AND ERROR: Weight of Evidence for Jury. It is the province of the jury, not the appellate court, to weigh the evidence.</p> <p>2. INSURANCE: Whether False Representations as to Disease were Made, Held for the Jury. In an action on benefit certificate, evidence that insured did not falsely represent absence of disease or consultation with physician for five years prior to application, held sufficient to go to jury as against a' motion for a directed verdict.</p> <p>3. APPEAL AND ERROR: Insurance: Instruction Making a Defense of Misrepresentations Depend on Purpose for which Made, Held Erroneous. In action on benefit certificate in which defense was that insured had made false answers in application as to existence of disease and consultation with physician, an instruction making defense depend on fact false answers were made to obtain certificate, was erroneous and prejudicial, as purpose of misrepresentation is immaterial.</p> <p>4. INSURANCE: Representations by Applicant Considered as Warranties. Representations by an applicant for membership in a fraternal beneficiary society are considered as warranties, and, when false, avoid the policy.</p> <p>5. APPEAL AND ERROR: Instruction Making Defense ■ of Misrepresentations Depend on the Purpose for Which Made, Held not Cured by Defendant Pleading such Purpose. Though fraternal insurer pleaded that insured made false answers in application as to existence of disease and consultation with physician for purpose of obtaining insurance, it did not waive its right to object to an instruction making defense and false answers depend on fact that answers were made to obtain the certificate as one of the essential elements, or waive his intention and that element was lacking.</p> <p>6. INSURANCE: Constitution and By-laws, Forbidding Agents of Camps to Waive Conditions of Certificate, Valid. Constitution and by-laws of fraternal beneficiary society, providing that no officer, employee or agent of the Sovereign Camp, or any camp, has power to waive any of the conditions on which benefit certificates are issued, is valid.</p> <p>7. -: Clerk of Local Camp has no Power to Waive Conditions of Certificate. In view of Revised Statutes 1919, section 6418, and constitution and by-laws of fraternal benefit society, clerk ' of local camp could not waive condition of certificate that false answer by insured as to existence of disease and consultation with physician for five years preceding application would avoid certificate.</p> <p>8. -: Benefit Society, Avoiding Certificate for False Answer, Need not Tender Back Premiums Paid. By virtue of Revised Statutes' 1919, section 6401, fraternal beneficiary associations are exempt from provision of section 6145 of the general insurance statute, requiring a deposit of premiums paid as a prerequisite to defending on misrepresentations.</p> <p>9. EVIDENCE: Where Testimony at Former Trial Introduced Books of Accounts of Witness not Admissible. Where physician’s testimony relating to treatment of insured for disease was read in a subsequent trial in behalf of insured to show breach of warranty, it was not error to exclude what book account of physician would show in reference to treating insured.</p>

— Hon. Almon Ing, Judge. (1) The court erred in permitting witnesses for the respondent to testify to fires which they observed the next morning after the fire and after the railroad train had passed by the house, and also as to fires at another time supposed to have been set by the railroad engine; without first requiring the plaintiff to show that the conditions existed at the time the other fires originated 'as to wind, the weather and surrounding circumstances, such as…

— lion. Sterling II. McCarty, Judge. “The instrument cannot be varied or contradicted under ' the guise of explanation or construction.” 22 Corpus Juris, sec. 1570, page 1177; Stonebraker v. Ford, 81 Mo. 532; Chrisman v. Hodges, 75 Mo. 413; Watkins Medical Co. v. Holoway, 181 S. W. 602.

<p>Appeal from the Circuit Court of the City of St. Louis.— Hon. Franklin Ferriss, Judge.</p>

<p>1. SCHOOLS AND SCHOOL DISTRICTS: Cities and Towns: Select-, i»g Schoolhouse Site: Changing Location of Site Established: Powers of Board of Education, In an action seeking to enjoin a certain school district and directors of the school district from selecting a schoolhouse site in the district and from changing the location of a school site theretofore established in said district, sections 11143, 11210, 11236, 11238, 11241 and 11314 of Revised Statutes 1919, are reviewed together with other sections relating to school districts, etc., and held that when section 11143, which contains a provision that “the board of education in city, town or consolidated school district shall locate, direct and authorize tbe purchase of sites for schoolhouses,” is considered with section 11241 providing that “the board may also establish schools of a higher grade,” and with section 11238, vesting the government and control of town and city districts in a board of education, and such authority is not by any other statute, applicable to a district of the character in question, vested in the qualified voters of the district, authority under section 11241 was conferred upon the board to select and acquire or change high school sites as well as sites for schools of lower grades; that the authority “to establish schools of higher grade” carried with it the authority to select a site and provide a home for the school.</p> <p>2. -: -; -:--: -. Further even though the district in question had a population of less than 5000, the board of education of the district was acting within its authority in selecting a new site for the proposed high school in said district or in changing the site previously selected and the matter was not one to be submitted to a vote of the qualified voters who were resident taxpayers of the district. ,</p>

— Eon. Edgar B. Woolf oik, Judge. (1) The demurrer should have been sustained at the close of the plaintiff’s case because plaintiff’s own evidence showed that it was within the exceptions of the policy of insurance. If this was true at the close of the plaintiff’s case a fortiori it was true at the close of the whole case. Frisbie v. Fidelity Casualty Co., 133 Mo. App. 30; Cohn v. Nat. Ins. Co., 96 Mo. App. 315; GermauAmerican Ins.

<p>1. ADOPTION: Statute: Construction: Statutory Mode Must be Complied. with. When a statute provides a mode for adoption, it is implied that it cannot be done legally in any other way, and there must be a substantial compliance with all of the essential requirements of the law under which such right is claimed and as it is in derogation of the common law such a statute should not be so narrowly construed as to defeat the manifest intent thereof.</p> <p>2. GUARDIAN AND WARD: Parents are Natural Guardians: Adoption of Child Cannot be Had without Their Consent, Unless Rights Forfeited by Statute. The natural parents of a child are its natural guardians, and if one parent is deceased, the survivor is such natural guardian, and his child may not be adopted by others without his consent unless he has placed himself in such a position relative to such child as to have forfeited his rights thereto..</p> <p>3. -: -: Statute: Evidence Insufficient to Show Nonsupport by Father so as to Warrant Adoption under Statute without his Consent. In a proceeding by the maternal grandparents of a child for its adoption where the parents had been divorced and the mother was dead, the evidence is held insufficient to show that the father failed to support the child after the divorce, and, therefore, adoption of child could not, under section 1096, Revised Statutes 1919, he had without father’s consent.</p> <p>4. PARENT AND CHILD: Custody: Welfare of Child Chief Consideration in Determining Final Custody. The rights of the natural parent are supreme over others, but the welfare of the child is superior to the claims of the parent, and even to the wishes of the child itself; the child’s welfare being the chief consideration in determining who shall have his final custody.</p> <p>5. -: -: -: Father Held to be Entitled to Custody of Minor Child as Against the Maternal Grandparents. Where parents were divorced, the wife having died, and father remarried, the father, desiring custody of minor child by first marriage, being a man of good habits, having a responsible position and maintaining a permanent home, is entitled to custody of the child as against the maternal grandparents.</p>

<p>1. APPEAL AND ERROR: Municipal Corporations: Courts: Judicial Power of Administrative Board: Jurisdiction: Court of Appeals has no Jurisdiction of Constitutional Questions. The contention that the Board 'of Public Works was without power or jurisdiction to hear or pass upon the matter of repaving a street, because of the unconstitutionality of sections 7967 and 7968, Revised Statues 1919, in that they conferred judicial power on the Board of Public Works, cannot be reviewed by the Court of Appeals, as it has no cognizance of Constitutional questions.</p> <p>2. -: -: -: -: Statutes: Appeal from Board of Public Works to Circuit Court Governed by Section 7968, R. S. 1919, and it was not Error to Hear Same at the Term the.Appeal was Taken. The general provisions of the code governing appeals from justices of the peace, viz., sections 2904, 2905 and 2906, Revised Statutes 1919, are inapplicable to appeals from Board of Public Works to the circuit court, which are governed by section 7968, Revised Statutes 1919, which provides that appeals may be taken within five days, in the manner provided by law for appeals from justices of the peace, and thereupon said circuit court shall become possessed of the proceedings and summarily determine by its judgment, etc., and it was not error to hear such an appeal at same term.</p> <p>3. MUNICIPAL CORPORATIONS: Ordinances: Judgments: Result of Injunction Suit Holding Protesting Petitions not Filed in Time, Forecloses Question of Suspension of Ordinance. The question of the suspension of the force and effect of an ordinance, by pro-' testing petitions, is foreclosed by the result of an injunction suit holding that the petitions were not filed in time, and is also settled by section 7951, Revised Statutes 1919, authorizing the filing of petitions protesting against the passage of the ordinance, because petitions were not filed in proper time as required thereby.</p>

<p>Appeal from the Circuit Court of Boone County. — Hon. D. H. Harris, Judge.</p>

<p>1. INSURANCE: Policy: Construction: Express Words in Policy Fixing Date of Payment do not Control in the Face of a Modifyng Clause. Where an insurance policy provided for quarterly payments on the 8th day of December, March, June, and September, held, not controlling as to the dates of payment where the policy also contained a provision stating that the policy shall not be binding until delivered “during the good health of the insured and until the first advance premium had been paid.”</p> <p>2. -: Contracts:. Mutuality: Payment of First Advance Premium and Delivery of Policy Should be Simultaneous, and Such Acts Fix the Dates of Future Payments. Where the contention of the insurance company is that although the policy did not go into effect until some time later, that the due dates remained undisturbed held fallacious as such a contract would not be mutual, that the evident intention was that the payment of the first premium and delivery of the policy should be siihultaneous and such acts were to fix the dates of the future premiums.</p> <p>3. -: ■ — ——•: Construction: Forfeiture: Contracts Open to Construction will be Construed so as to Sustain not Forfeit. If contracts of insurance are so framed as to be fairly open to construction, that view should be adopted, if possible, which will sustain, not forfeit.</p> <p>4. -: Forfeiture: Tender of Premium Timely. Where an insurance premium under the express terms of the policy was to be paid on the 8th day of the month, but the policy under a modifying clause had not gone into effect until the 20th day of the month, the later date fixed the time of payment, and a tender of payment on the I4th was timely, and the defendant was without warrant of law in declaring the policy forfeited.</p>

<p>1. NEGLIGENCE: Evidence: Expert Testimony Under the Evidence Held Unnecessary to Show Within What Distance Car Could be Stopped. Where plaintiff was standing on northbound track waiting for southbound car to pass, with his back to the south, and engrossed in watching the southbound car, which ran 200 feet at rate of twelve miles per hour and stopped, while northbound car ran two blocks at rate of twenty-five miles per hour, and there was nothing to indicate to motorman that plaintiff was going to get off track, the plaintiff was struck by northbound car, although before collision plaintiff’s position was visible to the motorman for a distance of over 400 feet, expert testimony was not necessary to show within what distance the car could have been stopped at the rate it was going, because, under the. circumstances, the court and jury could determine, by the use of ordinary common sense, that northbound car could have been stopped within distance it proceeded before striking plaintiff.</p> <p>2. -: Humanitarian Rule: Whether Plaintiff Was in a Position of Danger and Oblivious Thereof Held for Jury. It was for the jury to say whether position and conduct of plaintiff indicated to motorman that plaintiff was not going to get off track, and was, therefore, in a position of danger and oblivious thereof.</p> <p>3. INSTRUCTIONS: Negligence: Humanitarian Rule: An Instruction Requiring the Jury to Find that Motorman Could Have Seen Pedestrian in a Position of Danger and Oblivious Thereof, Before Returning Verdict for Plaintiff, was Sufficient to Submit Question of Plaintiff’s Obliviousness of Peril. Where the undisputed facts showed that motorman had ample time in which to stop car, by exercise of ordinary care, an instruction failing to require the jury to find something in the manner and demeanor of plaintiff to indicate to motorman that plaintiff was oblivious of approaching car, but which instruction required jury to find that motorman saw, or could have seen, plaintiff in a position of danger and “oblivious of said danger, that is, unaware of,” sufficiently submitted the question of obliviousness of approaching car.</p> <p>4. -- — : -: Under Evidence Element as to safety of passengers Properly Omitted from Instruction ^n Duty to Stop Car. Where undisputed facts show that motorman had ample time to stop car, by the use of ordinary care, with a view to the safety of the passengers, it was unnecessary to submit in an instruction, the element of safety to the passengers.</p> <p>5. -: -: Under Evidence an Instruction Omitting Element of Ordinary Care, not Erroneous Because Said Element Was not an Issue. Where undisputed facts show that motorman had ample time to have stopped car by use of ordinary care, an instruction submitting the question as to whether motorman had time to stop, or slacken the speed of car, without incorporating therein, the element as to whether he could have done so, by the use of ordinary care, was not erroneous because said element was not an issue.</p> <p>6. EVIDENCE: Motion to Strike: Where Plaintiff was Unconscious and. not Able to Employ Surgeon, Motion to Strike from Record Evidence of Plaintiff’s Condition Caused by Neglect to Procure Proper Care and Treatment Within a Reasonable Time, Properly Denied. Where plaintiff was substantially unconscious for a period of eleven days after the injury, not in a position to employ a physician or surgeon and his leg was not set and he did not receive proper medical attention until after the period of unconsciousness, defendant’s motion to strike from record evidence of plaintiff’s condition caused by his alleged neglect to procure proper and competent medical care and treatment, within a reasonable time, was properly denied, as defendant, being responsible for the injury in the first instance, is liable for the unfavorable results occurring by reason of plaintiff’s inability to procure competent medical attention, as well as the mistakes of a competent physician, as they are among the consequences that may reasonably result under ordinary circumstances from defendant’s negligence.</p> <p>7. PLEADING: Petition: Damages: 'Allegation as to Injury to Internal Organs Sufficient to Admit Evidence as to Impairment of Functions. Where plaintiffs petition pleads that he was “seriously and permanently injured and crippled, in this, that all of his internal organs were shocked and injured so as to impair their proper functions,” there being no allegation limiting the effect of such injuries and the allegation being of a general nature, evidence was admissible under the petition as to plaintiff’s inability to control his bowels and urine as the result of the injuries to his kidneys.</p> <p>6. TRIAL PRACTICE: Misconduct of Counsel: Demurrer: Where Defendant Stands upon Demurrer and Offers no Testimony, Argument that Defendant Introduced no Evidence Because it had None, or such as it Had was Unfavorable, is Permissible. It is not error in the argument to the jury by plaintiff’s counsel, to refer to the failure of defendant to introduce any testimony, nor to the failure of the defendant to introduce the testimony of its motorman when said testimony was available and to argue that defendant had no testimony, and such as it had was against it, and for that reason defendant introduced none, as defendant in standing on its demurrer must be held to suffer all the consequences, including the legitimate inferences that might be drawn from such action.</p> <p>9. INSTRUCTION: An Instruction in a Humanitarian Case Requiring Pedestrians to Look and Listen before Crossing Street was Properly Refused. In an action founded upon the humanitarian doctrine, an instruction requiring pedestrians crossing tracks of defendant to look and listen before proceeding across, was properly refused.</p> <p>10. DAMAGES: Excessive Verdict: A Verdict of $3000 is not Excessive Where Plaintiff Suffered Broken Leg and Internal Injuries. Where 'plaintiff’s leg was broken in three places which healed so that it was weakened permanently and suffered internal injuries causing him to lose control of his bowels and bladder, a verdict of $3000 cannot be held to be excessive, though there was no evidence of plaintiff’s age.</p>

<p>Appeal from Circuit Court of Jackson County. — Hon. Daniel E. Bird, Judge.</p>

<p>1. ACTION: Words and Phrases: Determination of Cause Defined. The term “determination” may properly, and according to legal use as well as according to its derivation, signify the coming to an end in any way whatever.</p> <p>2. STIPULATIONS: Validity: Conclusive as to All Matters Necessarily Included. A valid stipulation is conclusive as to all matters necessarily included in the stipulation.</p> <p>3. -: Not Affecting Procedure, is Binding and Not Controllable by Court. A stipulation relating to some interest of the party which is wholly under his control and in no way affects the procedure in the cause, is binding upon, and cannot be controlled by, the court.</p> <p>4. -: Judgment or Decree: Agreement that Judgment or Decree Shall be Determined by Judgment or Decree in Another Suit Valid and Binding. Parties to a suit or their attorneys may enter into a valid agreement that the judgment or decree in that suit shall be the same as, or determined by, the judgment or decree in another, which is of the same character and involves the same issues or interests.</p> <p>5. -: Dismissal of Appeal, Which Was Final Result of Suit, Held “Determination” of Suit Within Meaning of Stipulation as to Other Suits. Where a stipulation is entered into that the parties in several suits “shall abide the final result” of another suit, “it being understood and agreed that if this cause ... is appealed by losing party, then this court shall render no judgment in the other cases until the determination of this cause in the appellate court, then this court shall dispose of each of said cases as herein agreed,” held, that as stipulation did not provide for decision upon the merits, there was a “determination” of the other suit in the appellate court, within the meaning of the stipulation when an appeal to the Supreme Court was dismissed because appellant’s brief did not comply with the rules of court and a rehearing was denied.</p> <p>6. -: Construction Liberally Construed: Construction Can Only be Had Where There is Room for Construction. While it is true that stipulations are to be liberally construed with a view, to effectuate justice, still construction can only be had where there is room for construction; and surrounding Qircumstances may be looked to in order to arrive at the true meaning and intention of the parties as expressed in the words used in the stipulation, and as the written stipulation is the only visible expression of their meaning, no other words are to be added to it, or substituted in its stead.</p>

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

<p>1. NEGLIGENCE: Street Railroads: Pedestrian in Crossing Street, Held Not Guilty of Contributory Negligence as a Matter of Law. In an action for personal injuries by pedestrian struck by street car wbo did not attempt to heedlessly cross street, and when he left the curb, looked and saw the car at least 300 feet away just entering a street intersection, and not knowing that the car was running at a speed in violation of ordinance, and entertained the reasonable belief, that he had time to cross in safety and it was not until he was in the center of track that he realized the car was coming too fast and that he was in danger, it being questionable whether he could have gotten back off the track any quicker than by continuing across, and the fact that when he discovered his peril he became frightened and hesitated before attempting to cross, it is held, that under the facts and circumstances plaintiff’s contributory negligence did not conclusively appear.</p> <p>2. -: Humanitarian Rule: Pleading: Cause of Action Under Humanitarian Rule Sufficiently Pleaded. A petition which pleaded that plaintiff was “uncohscious of any danger,” was tantamount to saying that when plaintiff got into the place of danger he was oblivious of peril, and hence such allegation, together with other averments containing the elements of the cause of action, was sufficient pleading under humanitarian rule.</p> <p>3. -: -: Evidence: Obliviousness: Evidence Held Sufficient to Submit Case to Jury Under Humanitarian Rule. Where the evidence showed that plaintiff saw the car and knew it was coming, but did not realize it was coming so fast, and he had a right to think it was not coming at such a rate of speed as would enable it to reach him before he got across track, and thereby did not know of his danger until he was in imminent peril, such evidence was sufficient to submit the case to the jury under the humanitarian rule.</p> <p>4. APPEAL AND ERROR: Instruction: Harmless Error: Contributory Negligence: Instruction Placing Unnecessary Burden Upon Plaintiff Harmless to Defendant. Where the issue of contributory negligence was not pleaded by defendant, it was unnecessary for plaintiff to assume the burden of the issue whether he was guilty of contributory negligence, and the giving of an instruction requested by plaintiff, assuming such burden was harmless to defendant.</p> <p>5. TRIAL PRACTICE: Verdict: A Verdict Signed by Nine Jurors Which Did Not Recite That the “Undersigned Jurors Find’’ is Sufficient Under Statute. A verdict returned by jury reading, “We, the jury, find the issues” instead of “We, the undersigned jurors find,” which was agreed to by nine and less than twelve jurors, and signed by them, complied with all legal requirements of section 6629, Revised Statutes 1919, as the statute nowhere says that the words “undersigned jurors” shall appear in the verdict.</p>

<p>Appeal from the Circuit Court of Jackson County. — 11 on. Allen G. Southern, Judge.</p>

<p>1. ACTIONS: Legal Entity: Associations: Voluntary Associations Cannot Sue or be Sued. An unincorporated voluntary association cannot, as such, sue or be sued.</p> <p>2. ROADS AND HIGHWAYS: Poll Tax:' Evidence Held to Show-Sufficient Compliance with Statute to Warrant Recovery of Poll Tax. In an action by a road district of a township to recover poll tax, evidence, held, to show sufficient compliance with Revised Statutes 1909, sections 11751, 11756, 11765, 11766 and section 11758, as modified by Laws 1913, p. 746, to warrant recovery of said tax.</p> <p>3. -: -: Notice:. Defect in Warning Notice Cannot Prevent Recovery of Tax, Under section 11758, Revised Statute 1909, recovery of poll tax cannot be defeated on account of any mistake or defect in the warning notice.</p> <p>4. TENDER: Costs: Tender Insufficient Because Made to Wrong Party, not Sufficient in Amount and Did Not Include Accrued Costs. Where defendant claimed to have made a tender of tax for benefit of plaintiff by depositing in a bank a certain sum of money to the credit of a justice of. the peace, without notice to him of the alleged tender, the tender was insufficient because made to wrong party, not sufficient in amount and did not include accrued costs.</p> <p>5. ROADS AND HIGHWAYS: Road District: Statutory Subdivision of County: Political Entity: A Road District Held to be a Political Entity by Statute and Capable of Suing and Being Sued. A road district of a township in a county, held, to be a statutory subdivision thereof, a political entity, made so by statute, and capable of suing and being sued.</p>

<p>Appeal from tlie Circuit Court of Boone County. — Eon. D. E. Earris, Judge.</p>

<p>1. EVIDENÓE: Indefinite Warranty: Parol Evidenoe Admissible to Explain Indefinite Warranty. In an action for damages for breach of a written contract governing the purchase and sale of a 30-horse power farm tractor, where the tractor sold was “to be of specification as shown in” a certain circular in which, among the many specifications of the machine, was the “number of plows pulled (slow speed) 8-12,” and it was warranted that the machine was “capable of doing as good work as similar articles of other manufacturers,” helé, that neither the provision in the contract that no promise of an agent as to warranty shall be binding unless ratified in writing by an executive officer of the seller at its home offioe, nor the rule that parol evidence was inadmissible to show that the buyer told defendant’s agent that he was going to use a certain variety of 18-disc plow, and the agent said it would be all right, the contract being indefinite as to the kind and size of plows stated, not showing whether 12, 14 or 16 inch plows were meant, nor whether they were disc or moldboard plows, would prevent plaintiff from showing that it took no more power to pull an 18-disc plow similar to that specified, than it did to pull one of nine 14 inch moldboard plows, which was within the number of plows the circular specified the traotor could pull.</p> <p>2. SALES: Breaoh of Warranty: Damages: Under Contract to Return and Rescind on Failure of Warranty, as Exclusive Remedy, Seller Refusing to Accept Return, is Liable for Damages for Breach of Warranty. Where, under contract for sale of tractor, in case of failure of warranty, the only right of purchaser was, after due notice thereof, to have another tractor or a return of freight money and notes given for the purchase price, and upon such failure of warranty, although the purchaser had complied with conditions precedent, and returned the tractor, the seller, neither gave plaintiff another in its stead nor returned the “money and notes” as agreed, the seller’s right to confine the purchaser to his remedy exclusively upon the contract was lost or waived, such exclusive remedy being conditioned upon seller’s compliance with contraot; and the buyer was restored to the right to recover the usual damages for breach of warranty.</p> <p>3. -: Contracts: Construction: Breach of Warranty: Remedy: Limitation of Remedy for Breach of Warranty Must be Clearly Expressed. Where parties to a contract agree upon a particular remedy for a breach of warranty and expressly and clearly intended to unqualifiedly limit the remedy of purchaser to the one therein prescribed, the contract will be given such construction, but such contracts do not constitute a limitation of the purchaser’s remedies for a breach of warranty, unless such intention is clearly expressed by the language and terms of the warranty.</p> <p>4. -: -: Breach of Warranty: Damages: On Breach of Warranty of Tractor Purchaser Entitled to Recover Freight Money and Amount he was Compelled to Pay on Notes Given in Payment Therefor. Where a warranty as to a tractor sold was broken, in that, the same was worthless, the purchaser was not only entitled to the damages sustained on account of the breach of warranty itself, but also the damages arising from defendant’s violation of its agreement to return his “money and notes” which would include the freight money and the amount he was finally compelled to pay to get rid of the notes after litigation as to their validity.</p> <p>5. -: -: -: -< — : On Breach of Warranty Purchaser Entitled to Recover Expense in Endeavoring to Make Machine Work. On breach of warranty of tractor purchaser is entitled to recover expense incurred in endeavoring to make machine work.</p> <p>6. -: —--: -: -- — : On Breach of Warranty Purchaser Entitled to Recover Loss of Season’s Use of Land. Where machine warranted to pull a certain number of plows, was sold for plowing purposes and was purchased for that work as shown by contract, purchaser on breach of warranty was entitled to recover the loss of the rental value of one season’s us© of land he was to plow.</p> <p>7. DAMAGES: Breach of Contract: Should be Equal to Injury and Confined to Loss Naturally and Proximately Resulting. The general rule of damages for breach of contract is that the compensation should be equal to the injury, subject to the condition that the damages be confined to those naturally and proximately resulting from the breach and be not uncertain or speculative nor outside contemplation of the parties.</p> <p>8. APPEAL AND ERROR: Verdict: Remittitur: Evidence of Damages Erroneously Admitted held not Reversible Error as Excess of the Verdict Could be Corrected by Remittitur. If the plaintiff were not entitled to recover the expense incurred in the unavailing attempt to make machine work, nor the loss of the rental value of land he lost the use of, such would not be' cause far reversal under seotion 1513, Revised Statutes 1919, as the error did not materially affect the merits of the action, and the excess of the verdict oould be remedied by requiring a remittUwr of the same.</p>

<p>1. PLEADING: Amendments: Damages: Amendment During Trial as to Amount of Wages Lost by Plaintiff up to Time of Trial Properly Allowed. Under section 1274, Revised Statutes 1919, the court did not err in permitting plaintiff in an action for personal injuries, during the progress of the trial, to amend his petition as to the amount-’of wages lost by him up to the time of trial.</p> <p>2. MASTER AND SERVANT: Negligence: Contributory Negligence: Evidence Properly Admissible under Allegation as to Condition of Passageway in Roundhouse. Where petition alleged that defendant railroad negligently failed to sufficiently illuminate and light a passageway in its roundhouse and did not maintain a passageway of reasonably sufficient width, as a result of which, plaintiff fell into a pit, the court did not err in admitting evidence; as to the presence of steam-, tending to establish condition of darkness, in the roundhouse; obstructions in plaintiff’s path tending to show same was not of sufficient width and faulty construction of roundhouse, the gist of plaintiff’s cause of action being that he was not furnished a reasonably safe place in which to work, particularly where defendant charged plaintiff with contributory negligence in walking upon the passageway.</p> <p>3. EVIDENCE: “Relevant:” Testimony is Relevant which Tends to Establish Contention of Party Producing it. A fact is relevant which tends to render probable the contention of the party producing it, and though as a matter of evidence a fact does not become relevant merely because its existence is consistent with a party’s claim, the court may receive aid from evidence which in itself is not relevant to any issue in the case, but is corroborative of other testimony on a disputed point.</p> <p>4. MASTER AND SERVANT: Negligence: Whether Passageway in Roundhouse Sufficiently Lighted held a Question for Jury. In an action for injuries to a servant who fell into a pit in roundhouse while walking along a passageway, the question as to whether the roundhouse and passageway at the place where he fell was sufficiently lighted, held for the jury.</p> <p>5. —--: -: Contributory Negligence: Whether Plaintiff Guilty of Contributory Negligence in Failing to Choose Boute Less Dangerous, held Question for Jury. Whether plaintiff was guilty of negligence as a matter of law in failing to use the means at hand for his safety, to-wit, a route less dangerous, held a question for jury.</p> <p>6. -: —»-: Assumption of Bisk: Servant Does Not Assume Bisk of Master’s Negligence. If defendant was negligent, .and such negligence was the proximate cause of the injury, plaintiff could not assume the risk of such negligence.</p> <p>7. APPEAL AND EBBOB: Pleading Unnecessary Burden: Where one Ground of Negligence Alleged in Conjunctive is Sufficient to Warrant Verdict it is not Error to Submit Another Ground without Supporting Evidence, as Plaintiff Assumes an Unnecessary Burden Thereby. When grounds of negligence are stated in the conjunctive and the jury is required to find negligence in the several respects, then if one of the grounds of negligence is alone sufficient to warrant the verdict, it is not error merely because some other ground also submitted is without evidence to support it, as plaintiff merely imposes upon himself an unnecessary burden, the failure to carry which does not defeat his recovery.</p> <p>8. ' DAMAGES: Excessive Verdict: $10,000 Beduced to $5,000, for Injuries to Nerves, Loss of Normal Use of Left Arm, Bendering Plaintiff Unable to do Manual Labor. 'A verdict for $10,000 for injuries to nerves, loss of normal use of left arm, rendering plaintiff unfit for manual labor reduced by trial court to $7-,500 and further reduced to $5,000 on appeal as being excessive.</p>

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

<p>1. CORPORATION'S: Statutes: Foreign Corporations: Ratification: Purchase of Own Stock by Corporation Void, and Transaction Cannot be Ratified so as to give the Same any Legal Effect. Under the Colorado Statute (Sec. 996, Mills Ann. Stats. 1912), the purchase of its own stock by a corporation is not merely voidable but is absolutely void, and no amount of ratification by the stockholders and the corporation could galvanize it into life and force.</p> <p>2. LIMITATION' OF ACTION'S: Suspension: Evidence: Colorado Statute of Limitations not Suspended by Defendant Leaving the State, Because it was not Shown that Colorado had a Statute Suspending Operation of Statute During Absence of Defendant. The fact that defendant left Colorado, and came to Missouri, cannot be relied on to suspend the Colorado Statute of Limitations, because it was not shown or even claimed, that Colorado had a statute suspending the operation of the Statute of Limitations, during the defendant’s absence from the State, and it cannot be presumed that Colorado has a law similar to our Statute (section 1326, R. S. 1919), suspending limitation on account of absence from the State, especially, where the record shows that under Mill’s Ann. Stats, Colo. 1912, section 6992, the common law of England was in full force, and under the common law, as adopted by Colorado, there was no suspension of limitations because of absence of defendant from the State.</p> <p>3. -: Trusts: Actions to Declare Trust Ex Maleficio Barred in Five Years. Under section 1317, Revised Statutes 1919, an action to declare a trust ex maleficio is barred in five years.</p> <p>4. STATUTES: Construction: Suspension of Limitations: Section 1326, R. S. Mo., 1919, Applies Only to Causes of Action which Accrue against Residents of Missouri at Time of Accrual. Section 1326, Revised Statutes 1919, suspending the period of limitations, cannot be invoked by the plaintiff, where defendant was a non-resident of Missouri, at time of accrual of cause of action, as it applies only to causes of action accruing against persons who are residents of Missouri at the time of accrual thereof.</p> <p>5. LIMITATION OF ACTIONS: Statutes: Construction: Trusts: Suit Within One Year after Nonsuit Must be on Same Cause of Action. For a suit to save a second suit from bar of the Statute of Limitations the cause of action must be the same in both actions, involving the same subject-matter and requiring the same evidence to sustain it, and where a suit is brought within one year after nonsuit, to declare a trust ex maleficio, in an action to recover value of goods in suit on quantum meruit, section 1329, Revised Statutes 1919, allowing suit to be brought within one year after nonsuit, does not authorize the commencement of such an action nor prevent the bar of the Statute of Limitations to a suit for the declaration of a trust ex maleficio.</p> <p>6. TRUSTS: Express: Implied: Ex Maleficio: Limitation of Aotions: Statute of Limitations Runs Against Implied Trusts: An action. • to make defendant a trustee ex maleficio is based upon an implied trust, not on an express trust, and hence the Statute of Limitations can run in favor of defendant.</p>

<p>1. ACCOUNT STATED: A Demand, on One Side Acceded to on the Other for a Fixed and Certain Sum Admitted to be Due Constitutes an Account Stated. To support an action on an account stated plaintiff must show that there is a demand on one side that is acceded to on the other and there must be a fixed and certain sum admitted to be due.</p> <p>2. -: Where the Facts are Undisputed, Whether Transaction Amounts to an Account Stated, Question of Law. Where the facts are undisputed whether the transaction amounts to an account stated is a question of law and not of fact.</p> <p>3. ->: Rule of Implied Admission by Acquiescence Cannot be Made by Debtor. The rule of implied admission by acquiescence is applicable only where the party insisting that the demand is established by acquiescence was the one who presented or rendered the account, and claim cannot be made by debtor.</p> <p>on Motion for Rehearing.</p> <p>4. APPEAL AND ERROR: Appellant Cannot have Case Reopened so as to Submit New Theory. Under rulie 20, appellant, alter adverse decision in appellate court, is not in a position to have ease reopened so that he may submit another theory.</p>

<p>1. TAXES: Municipal Corporations: Words “Special Taxes or Assessments” Construed: Ordinarily tVord “Tax’’ Does not Include Local Assessments. Ordinarily, the words, “tax or taxes,” does not include local assessments unless there he something in the language where the word is found to indicate such an intention.</p> <p>2. -: -- — : Words “Special Taxes” as Used in Constitutional Provision do not Include Local Assessments. Even the words “special taxes” do not include local assessments as those words are used in section 11, article 10, of the Constitution of this State.</p> <p>3. -: -: Definition of Word “Assessment.” The word “assessment” is used in more than one sense, and as ordinarily understood, consists in the two processes of listing the persons property, etc., to he taxed, and of estimating the sums which are to be the guide in an apportionment of the tax between them.</p> <p>4. -: Liens: Lien of Special Tax for Local Improvements Inferior to that for General Tax. The lien of special tax bills for local improvements is inferior to that for general taxes where there is no provision to the contrary.</p> <p>5. MUNICIPAL CORPORATIONS: Liens: Lien of City for Taxes upon Real Estate Subject to Lien of Holder of Prior Tax Bills Issued by City for Local Improvements. Under City Charter 1909, p. 239, art. 5, sec. 39, the lien of the city of Kansas City, for taxes upon real property, is subject to the lien of the holder of prior tax bills issued by the city in payment of local improvements.</p> <p>6. COURTS: Jurisdiction: Constitutional Question: The Construction of a Provision of the Constitution Involves a Constitutional Question and not an Application Thereof. The point that the making of a lien of tax bills a superior lien to that of the city for general taxes would be contrary to the general scheme of collecting and assessing- land taxes as shown by the Constitution and Statutes of the State, and would be inoperative for that reason, involves a constitutional question for the decision of which this court has no jurisdiction, the question being the construction section 16, of article 9, of the Constitution.</p> <p>7. APPEAL AND ERROR: Constitutional Question not Raised in Trial Court Considered Waived on Appeal. Where constitutional question was not raised in trial court, it must be considered as waived on appeal.</p> <p>On Rehearing.</p> <p>1. CONSTITUTIONAL QUESTION: Agreed Statement of Facts: Agreed Statement of Facts Does not Obviate the Necessity of Raising Constitutional Question at Earliest Possible Moment. Where appellant in the appellate court attacked the validity as well as meaning of Charter clause (sec. 39, art. 5, Charter of Kansas City), but case pleaded was on ordinary proceeding to enforce the lien of tax bills, and the answer of appellant did not invoke any specific provision of the Constitution claimed to have been violated, and on which violation he relied for a defense, the case being submitted on an agreed statement of facts which merely took the place of evidence in the case, such agreed statement did not obviate the necessity of invoking the Constitution, if a constitutional question was involved in appellants contention, that his title was superior to the lien of the tax bills.</p> <p>2. LIENS: Taxes: In Absence of Statute, a Lien for General Taxes Takes Precedence Over' Lien for Special Assessment. In the absence of statutory provision to the contrary, it is generally held that a lien for general taxes takes precedence over a lien for special assessments.</p> <p>3. -: -: Municipal Corporations: City has Same Lien for General Taxes as the State. Under section 12964, Revised Statutes 1919, a lien is created on all real property for city taxes, “the same as for State and county taxes,” and section 12965, Revised Statutes 1919, gives the city the same lien for its general taxes as the State has, the general city taxes upon real estate under section 19, of article 5, of Charter of Kansas City, being a perpetual lien thereon against all persons.</p> <p>4. -: -: Lien of State for Taxes Paramount to all Other Liens. The lien of the State for its taxes is paramount to all other liens, whether prior or subsequent.</p> <p>5. CONSTITUTIONAL' QUESTION: Where a Charter Provision has the Dignity and Rank of a Statute, the Question of its Constitutionality is Undoubtedly a Constitutional Question. The appellant’s contention that the charter clause was invalid, does not rest alone on the fact that the statute has given the city the same lien for general taxes as the State, but upon the further fact that the last two lines of section 16, article 9, of the Constitution, provides that the city charter “shall always be in harmony with and subject to the constitution and laws of the State,” and, therefore, such contention involves a constitutional question.</p> <p>6. MUNICIPAL CORPORATION: Power to Tax: Power to Frame Charter Emanates from the Constitution. The power to frame charter emanates from the Constitution, and the power of taxation which otherwise is vested exclusively in the Legislature, is also conferred upon the municipality as an essential attribute for the purpose of its existence.</p> <p>7. CONSTITUTIONAL QUESTION: Where not Properly Raised, not in the Case. Where the conclusion reached is not based on a decision of a constitutional question, but founded upon the wording of the Charter, the constitutionality of which was not properly raised, there is no constitutional question in the case.</p>

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

<p>Appeal from Circuit Court of Jackson County. — Hon. Daniel E. Bird, Judge.</p>

<p>Appeal from the Circuit Court of the City of St. Louis.— Eon. Karl Kimmel, Judge.</p> <p>(1) The demurrer to the evidence should have been sustained, (a) No negligence was shown. The danger of injury in moving and handling freight was one inherent in the nature of plaintiff’s employment, and ordinarily incident to that employment, and he therefore assumed the risk. (b)The evidence did not bring the case within the Federal Employers’ Liability Act.' The test of employment in interstate commerce is, was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it? Shanks v. Railroad, 239 U. S. 556; N. Y. Cent. R, Co. v. White, 243 U. S. 188; Erie R. Co. v. Collins, 40 Sup. Ct. Rep. 450. Measured by this test, plaintiff, at the time of his injury, was not employed or engaged in interstate commerce, and therefore he was not entitled to recover under the Act. Ills. Cent. R. Co. v. Behrens, 233 U. S. 473; Shanks v. Railroad, 239 U. S. 556; Delaware, etc., R. Co. v. Yurkonis, 238 U. S. 439; Chicago, etc., R. Co. v. Harrington, 241 U. S. 177; Minneapolis, etc., R. Co. v. Winters, 242 U. S. 353; Lehigh Yal. R. Co. v. Barlow, 244 U. S. 183; Yazoo & M. Y. R. Co. v. Houston (Miss.), 75 So. 690; Ills. Cent. Co. v. Rogers 221 Fed. 52; Froelich v. Railway (N. Dak.), 173 N. W. 822; Buynofsky v. Railroad (N. Y.), 126 N. E. 714; Ills. Cent R. Co. v. Probus (Ky.), 218 S. W. 724; Capps v. Railroad (N. C.), 101 .S. E. 216; Minnesota, etc., R. Co. v. Nash, 242 U. S. 619; lilis. Cent. R. Co. v. Cousins, 241U. S. 641; Baltimore & O. R. Co. v. Branson, 242 U. S. 623. (2) The court erred in giving instruction No. 1 at the instance and on behalf of plaintiff. This instruction is not supported by the evidence, in that there was no evidence that plaintiff was in the employ of defendant in interstate commerce, or that plaintiff was required by defendant to assist in moving the planing mill, or that defendant did not use ordinary care' in requiring plaintiff to assist in moving said machine. It was, therefore, error to submit these issues to the jury. Degonia v. Railway, 224 Mo. 564, 590; Wagoner v. Railroad, 118 Mo. App. 239, 250; Chambers v. Railway, 111 Mo. App. 609, 612. (3) The court erred in refusing to give instruction No. 1-A, requested by defendant. This instruction conformed to the evidence, and correctly declared the law of the case. Authorities under-point 1. (4) The court erred in refusing to give instruction No. 2-A, requested by defendant. The evidence shows that plaintiff’s injury was the result of an accident occurring without any negligence on the part of defendant. Beauvais v. St. Louis, 169 Mo. 500; Feary v. Railway, 162 Mo. 75; Zeis v. Brew. Assn., 205 Mo. 638; Briscoe v. Railway, 222 Mo. 104. (5) The court erred in refusing to give instruction No. 3-A, requested by defendant. The evidence fails to sustain the allegation in the petition that defendant required plaintiff to assist in moving the machine, but, on the contrary, it does show that plaintiff’s act in assisting the other employees in moving it was either voluntary on his part or at their request.</p> <p>(1) It was not error to overrule defendant’s objection to the introduction of any testimony made at the beginning of the trial, on the ground that the petition failed to state facts sufficient to constitute a cause of action, (a) All facts essential to the charge of requiring plaintiff to handle an unsafe, rotten and dangerous machine or shipment, were properly pleaded. Bender v. St. Louis & San Francisco R. Co., 137 Mo. 240; Oglesby v. Missouri Pacific Ry. Co., 150 Mo. 137; Mitchell v. Wabash Ry. Co., 97 Mo. App. 411; Near v. St. Louis & San Francisco R. Co., 261 Mo. 80; Cunningham v. C., B. & Q. R. R. Co., 156 Mo. App. 617; Bible v. Railroad, 169 Mo. App. 530; Gibson v. Bridge Co., 112 Mo. App. 594. The petition alleges and plaintiff proved all facts essential to the charge of negligence of defendant- in requiring or permitting him to handle the machine which was unsafe and dangerous, in that it was likely to fall on account of its condition and injure plaintiff, (b) Defendant Railroad Company was not legally bound as a common carrier to accept the freight for shipment in bad condition. Atlantic Coast L. R. Co. v. Rice, 169 Ala. 265, 918 Ann. Cas. 1912, p. 389, 29 L. R. A. (N. S.) 1214; California Powder Works v. Atlantic & P. R. Co., 113 Cal. 329, 36 L. R. A. 648; Fitzgerald v. Adams Express Co. 24 Ind. 447, 87 Am. Dec. 341; Sutcliffe v. Great Western Ry. (1910), I. K. B. (Eng.) 478, 18 Ann. Cas. 224. (c) The case was clearly brought within the Federal Employers’ Liability Act. It was admitted the defendant had received the machine for shipment to another State and was an interstate shipment, and it is plain that plaintiff, at the time he was injured, was doing work connected with Interstate Commerce, or in work so closely related to it to be practically a part of it. Erie R. Co. Welch, 242 U. S. 303; Norfolk & Western R. Co. v. Earnest, 229 U. S. 1096; St. Louis & San Francisco Ry. Co. v. Seale, 229 U. S. 1129; Crecelius v. Chicago, Milwaukee & St. Paul Ry. Co., 205 S. W. 281; Pederson v. Delaware, L. & W. R. Co., 229 U. S. 1125; Cassin v. R. Lusk, 277 Mo. 663; Lock v. Chicago, Burlington & Quincy Co., 219 S. W. 919; Manes v. Frisco R. Co., 220 S. W. 14; Williams v. Scharff, Receiver, 222 S. W. 412; Erie R. Co. v. Collins, 40 Sup. Court Reports 450; Erie R. Co. v. Szary, 40 Sup. Court Reports 453; Western Ry. Co. of Alabama v. Mays, 72 So. 641; Solomon v. Southern R. Co., 180 S. W. 165,133 Tenn. 223; Smigiel v. Great Northern R. Co., 160 N..W. 1057; Chicago, Rock Island & Pacific R. Co. v. Ind. Board of 111., 273 111. 528 (L. R. A. 1916-F, p. 40); Bagort v. New York Central & Hudson River R. Co., 157 N. Y. Sup. 420. (2) The plaintiff being in the employ of defendant, and engaged in interstate commerce at the time of being required by defendant to assist in moving whatever is to be moved, or what is to be done in the way of handling freight, and it appearing that defendant knew of the defective condition of the planing mill, and the plaintiff was thereby injured, these issues were properly submitted to the jury. Authorities under Point 1. (3) Defendant’s refused instruction No. 1-A was properly refused because it is not necessary for plaintiff, in order to be engaged in interstate commerce, to be actually putting or loading the machine in the car, as what they'were doing to the machine was something that is incident to any shipment. Authorities under Point 1. (4) Defendant’s instruction No. 2-A was properly refused because the evidence shows that the accident was due to the defendant’s negligence in requiring plaintiff to handle the unsafe machine. (5) Instruction No. 3-A offered by tbe defendant was properly refused because tbe evidence shows, and it cannot be denied, that plaintiff was to do in his trucking whatever was necessary to be done as occasion required without being expressly commanded to do a certain specific act.</p>

.Appeal from the Circuit Court of St. Louis County.— Hon. G. A. Wurdeman, Judge. (1) Trees in the street belong to the abutting owner where he is the owner of the fee. Walker v. City of Sedalia, 74 Mo. App. 70; McAntire v. Joplin Telephone Co., 75 Mo. App. 439; Webb v. Strobach, 143 Mo. App. 473; Cartwright v.' Bell Telephone Co., 205 Mo. 126; Ashurst v. Lohoefner, 170 Mo. App. 331; 37 Cyc. 203; 28 Cyc. 848, 446.

<p>1. ATTORNEY AND CLIENT: Lien: Motion to Enforce Lien: A ■ Motion by Attorney to Enforce Attorney’s Lien Held, to be an Original Proceeding and not a Mere’Motion Filed in the Suit of His Client. Where following a settlement of suit instituted by plaintiffs attorney to recover damages, the attorney filed a proceeding designated as a motion to enforce attorney’s lien against defendants which alleged every fact necessary to a statement of an independent cause of action, and defendants made no objection in lower court to the form of the proceeding, but assumed that it was regular in this respect and filed their plea in abatement and to the merits, to which a reply consisting of a general denial was filed by the attorney, and where a trial was had upon the issues thus joined and evidence was received on .behalf of all parties, declarations of law and findings of fact were requested by such parties, and the case was submitted to the court, and judgment rendered, all in conformity with the rules and practices observed in civil actions, the fact that the settlement complained of was made before judgment, did not prevent the attorney from proceeding by motion in original action to enforce his lien, under the attorney’s lien statute, sections 690, 691, R. S. 1919, the motion being in effect an original proceeding..</p> <p>2. PROCESS: Summons: Return of Sheriff Conclusive upon Parties to Suit and their Privies and can only be Controverted by Direct Attack in an Action Against the Sheriff for False Return. Even though the return of the sheriff showing service of summons on the defendant was false, it is conclusive upon the parties to the suit and their privies and can only be controverted in a direct attack upon it in an action against the sheriff for false -return.</p> <p>3. ATTORNEY AND CLIENT: Lien: Notice: Notice to Defendant of Attorney’s Lien not Required where Settlement was Made after Commencement of Suit. Where settlement was made after suit was brought, notice to defendant of lien of plaintiff’s attorney was not required.</p> <p>4. RELEASE: Stipulation of Dismissal: Railroad Company Accepting Benefits of Settlement by Filing Stipulation of Dismissal was Precluded from Asserting that it did not Make Settlement. Where a railroad company entered into a stipulation which was signed by it through its attorney reciting that the subject-matter of the suit had been fully settled, and stipulating that the suit should be dismissed, the railroad company was precluded in a proceeding to enforce an attorney’s lien, from asserting that the settlement was made by Director General of Railroads and not by it, in view of the fact that it accepted the benefits Of the settlement by filing the stipulation of dismissal.</p> <p>5. JURISDICTION: Federal Control Act: Question as to Whether Railroad or Director General of Railroads can be Sued for Acts of Latter’s Servants not a Jurisdictional Question and Court will Determine from Hearing on Merits if Federal Control Act is a Bar to the Action. The question of whether the railway company or the director General of Railroads can be sued for the acts and conduct of the latter’s servants is not a jurisdictional question and the courts will retain jurisdiction to try such a suit on the merits and to determine if the Federal Control Act, together with General Order No. 50, is or is not a matter in bar to the merits of the action.</p> <p>6. ATTORNEY AND CLIENT: After Compromise of Claim Upon which Suit was Filed in Good Faith in Action to Enforce Attorneys Lien, Attorney not Required, in Order to Establish Lien, to Show Claimant was Entitled to Recover. Where plaintiff had a "bona-fide claim against railway Company which was asserted in good faith and compromised after institution of suit, there was a sufficient consideration tor the settlement, and an attorney seeking to enforce attorney’s lien in order to recover, was not required to show that the claim was a valid one in the sense that claimant be able to recover on it.</p> <p>7. APPEAL AND ERROR: Finding of Trial Court, on Conflicting Evidence, Conclusive on Appellate Court. Where there is a conflict in the evidence, the finding of the trial court, sitting as a jury, is conclusive on the appellate court.</p> <p>8. -: Where Total Settlement was Twice the Amount Paid Claimant: Attorney Entitled to Recover One-half of Whole Settlement, which is a Sum Equal to that Paid his Client. Where the amount paid claimant in settlement of suit was only her part under attorney’s contract, and not the attorney’s portion, the claimant’s share of settlement under contract being fifty per cent of the whole sum, the attorney was entitled to recover one-half of whole settlement which is a sum equal to that paid his client.</p> <p>9. RAILROADS: Transitory Actions: Venue: State Law as to Venue Cannot be Modified or Limited by Orders of Director General. The venue in transitory causes of action provided by the laws of the State cannot be modified or limited by orders of the Director General of Railroads..</p>

<p>1. CONVERSION: Pledges: Possession: Tender: To Maintain Action for Conversion of Note Delivered as Collateial Security for a Loan, Tender of Amount Due on Loan Must be Made and it Being Refused, the Tender Must be Kept Alive. In an action for conversion of a promissory note where plaintiff as a part of an agreement with B. purchased the note, and B. borrowed of defendant bank an amount equal to that part of the purchase price which plaintiff did not pay in cash and endorsed and delivered the note to the bank as collateral security for the loan, plaintiff was not entitled to the possession of the note until she had tendered the amount due the bank on the note and after refusal of tender, plaintiff not having kept the tender good by paying the money into cour-t at the trial, or offering to do so, was not entitled to recover.</p> <p>2. TENDER: To Keep Tender Good Money Must be Paid into .Court or Offer to do so Made. To keep tender alive the money must be paid into court at the trial, or offer to do so made.</p> <p>3. TRIAL PRACTICE: Demurrer: Instructions: On Demurrer to the Evidence Defendant Entitled to Review of Ruling Thereon in Appellate Court Notwithstanding any Theory that Might be Disclosed by Other Instructions Asked Subsequent to the Overruling Thereof. Where demurrer to the evidence challenged plaintiff’s right to recover, the defendant in the appellate court is entitled to insist upon it notwithstanding any theory that might be disclosed by the other instructions asked subsequently to the overruling of the demurrer.</p>

<p>1. INTERSTATE COMMERCE: Test as to Whether Employee Engaged. Therein: Employee Injured while Carrying Drawbar Belonging to Engine Used in Interstate Traffic, Held, Engaged in Interstate Commerce. In an action for personal injuries brought under the Federal Employers’ Liability Act, (U. S. Comp-. St. Secs. 8657-8665), where a blacksmith was injured while carrying a drawbar belonging to an engine assigned to the work of hauling passengers between points in the States of Missouri and Illinois, it is held, that plaintiff was engaged in Interstate Commerce within the meaning of said Employer’s Liability Act, the test being the character of the work done and whether the same was in direct furtherance of Interstate Commerce or work so closely connected with Interstate Traffic as necessarily to become a part thereof.</p> <p>?. NEGLIGENCE: Master and Servant: Defendant Held Negligent in Permitting Scrap Iron to Remain in Passageway Used by Employee. Where plaintiff was injured by stepping upon a piece of scrap iron in a passageway causing him to stumble, while walking backward through said passageway, carrying a heavy drawbar, the defendant was negligent in permitting the scrap iron to remain in the passageway when defendant’s foreman knew that plaintiff would use the passageway in the manner in which he did use it.</p> <p>8. -: Fellow Servant: Interstate Commerce: Plaintiff Engaged in Interstate Commerce Held Entitled to Recover Even Though Injured by Negligence of Fellow-Servant not Engaged in Interstate Commerce. Plaintiff who was engaged in Interstate Commerce, was entitled to recovery no matter how long piece of scrap iron remained in the passageway, and even though he was injured by reason of negligence of a fellow-servant who was not engaged in Interstate Commerce.</p> <p>4. MASTER AND SERVANT: Assumption of Risk: Plaintiff Injured in a Passageway by Stepping upon a Piece of Scrap Iron Causing Him to Stumble, Held, not to have Assumed the Risk Under the Federal Rule.. Where plaintiff was injured while required to walk backward through a passageway which was the only one that could have been used by him, he had a right to assume that his foreman would not order him to do work that would require him to walk backward through said passageway without knowing that the same was free from obstructions, and under the federal rule plaintiff did not assume the risk of being injured as he had the right to assume that the passageway was clear.</p> <p>5. INSTRUCTIONS: Where the Evidence on a Certain Point was Uncontradicted, Failure to Instruct Thereon was not Error. Where the evidence was uncontradicted that plaintiff was injured while engaged in Interstate Commerce, an instruction which did not require the jury to find plaintiff was injured while so engaged was not erroneous.</p> <p>6. -: Negligence: Where Court Defined Negligence an Instruction is not Erroneous as Requiring Defendant to Make Passageway Absolutely Safe Instead of Reasonably Safe. Where an instruction was given defining negligence as a failure to exercise ordinary care, and that by ordinary care is meant that degree of care usually exercised by careful persons under the same or similar circumstances, the giving of another instruction by the Court to find for plaintiff if defendant permitted scrap iron to remain in a passageway, and that said passageway was thereby rendered dangerous and unsafe, by reason whereof plaintiff was injured, was not erroneous as requiring defendant to make the passageway absolutely safe instead of reasonable safe.</p> <p>7. DAMAGES: A Verdict of $4000 for Injuries to Spine, Back, Loss of Weight, Nervousness, Sleeplessness, and Incapacity from Hard Work, Held not Excessive. Where plaintiff, a blacksmith, suffered from sharp pains in spine and back and a sub-luxation of the lumbar vertebrae, was very nervous, unable to sleep, lost weight-, incapacitated from walking to extent he did prior to injury and for over a year could not perform any physical labor and from which condition more than three and a half years after the injury he had not recovered, a verdict of $4000 is held to be not excessive.</p>

<p>1. APPEAL AND ERROR: Bill of Exceptions Determines Wbat was Contained in an Account Book Introduced in Evidence as Against Recital Contained in Additional Abstract. The original bill of exceptions, signed by tbe trial judge, determines wbat was in fact in plaintiff’s book account introduced in evidence, and it must be ' accepted as its appears, as against an additional abstract filed by respondent showing an additional item.</p> <p>2. LIMITATION OF ACTIONS: Current Accounts: Running Aecounts: Lack of Mutuality Does not Prevent Accumulating Indebtedness from Becoming an Account Current Within Meaning of Statute as to Accrual of Action. Under section 1322, Revised Statutes 1919, in reference to “current accounts” providing that the cause of action on such accounts “shall be deemed to have accrued from the time of the last item in the account on the adverse side,” lack of mutuality does not in and of itself, prevent accumulating indebtedness from becoming an account current within the meaning of said section, “when the account sued on is a running account, and it is fairly inferable from the conduct of the parties while the account was accruing, that the whole was to be regarded as one, as in the case of a merchant’s account against a customer.”</p> <p>3. -: Claim for Kent Covering Period, of 15 Years Held not a Current Account and to be Subject to the Operation of the Statute of Limitations. Where there was no evidence that deceased knew he was being charged for rent of a room covering a period of 15 years down to the date of his death, and no charge was in- fact made until after his death, when suit was brought on a lump charge therefor, such charge did not constitute a “current account” within the meaning of the Statute of Limitations, Revised Statutes 1919, section 1322, so as to save the same from the operation thereof.</p> <p>4. -: Claim for Bent, of Which no Account was Kept, and Claim for Legal Services Relate to Separate and Distinct Matters and do not Constitute a Single, Open, Running Account. Plaintiffs claim for rent of the room, and the charges for legal services rendered deceased, did not constitute a single, open, running account within the meaning of the Statute of Limitations, section 1322, Revised Statutes 1919, as said claim was not so treated, even by plaintiff, until he brought suit, and the rent was not even kept as an account at all, but only inserted as a lump sum in the claim sued on at which time demand therefor was asserted for first time.</p> <p>5. INSTRUCTIONS: An Instruction Authorizing Jury to Reject Testimony of Witness Testifying Falsely is Erroneous when Qualifying Words Omitted Requiring Jury to Find his Testimony to be Willfully or Knowingly Given. An instruction which told the jury that if they believed “any witness has sworn falsely to any material fact, you are at liberty to reject all or any portion of such witness’s testimony,” is erroneous in that it omits the qualifying words requiring the jury to believe the witness has “willfully” or “knowingly” testified falsely before they can disregard the whole of his testimony.</p> <p>6. -: An Instruction Applicable to Only One Witness Authorizing Jury to Disregard False Testimony Without Qualifying Words Reversible Error. An instruction that if any witness swore falsely to any material fact the jury were at liberty to reject all or any portion of his testimony was not harmless error where the instruction could have been applied by jury to only one witness, as such, witness might have been honestly mistaken as to a part of the testimony.</p> <p>7. WITNESSES: Executors and Administrators: In a Suit Against Executor, Plaintiff Incompetent to Testify that Witness was not Present at Conversation Between Him and Deceased and That no Such Conversation Took Place. In a suit where an executor was a party, under section 5410, Revised Statutes 1919, plaintiff was incompetent to testify that a witness testifying for defendant was not present at a certain conversation between him and deceased, and that no such conversation as detailed by said witness took place.</p> <p>8. -: -: Where Over Objection and Exception of Plaintiff, Court Expressly Ruled Witness Competent to Testify, no Further Objection or Exception was Necessary. Where trial court over defendant’s objection, expressly ruled that plaintiff was a competent witness to contradict a witness for defendant as to a conversation she said she heard between plaintiff and deceased, and defendant excepted to the ruling, no further objection or exception was necessary, under the rule that where an objection has once been made and the court has explicitly and clearly ruled on the matter, the necessity of making further objections is obviated.</p> <p>9. -: Chief Beneficiary Under Will of Deceased not Incompetent to Testify to Conversation Between Plaintiff and Deceased. A witness who was the chief beneficiary under deceased’s will, and, in that sense, was claiming under him, was not an incompetent witness to testify to a conversation between deceased and plaintiff, as it is the survivor, or any person claiming under him, that section 5410, Revised Statutes 1919, diqualifies, the plaintiff in this case being the survivor.</p> <p>10. —-: The Admissibility of Testimony of Chief Beneficiary of Deceased Does not Waive or Remove Incompetency of Plaintiff. The admission of the testimony of the chief beneficiary under the will of deceased concerning a conversation between plaintiff and deceased, in an action against the executor, did not waive or remove the incompetency of plaintiff to testify under section 5410, Revised Statutes 1919, there being no provision to that effect in statute.</p> <p>11. COURTS: Where There Was no Ruling Made in Opinion by Supreme Court on Point Involved, Court of Appeals is not Bound to Follow Observations Contained Therein with Respect Thereto. While it may be duty of Court of Appeals to follow clearly specified rulings laid down by Supreme Court, even though the same be oHter, or are not necessary to a determination of the case in which they are made, yet where no such ruling' on the point here involved, or claimed to be involved, was made in opinion by Supreme Court, nor concurred in by a majority of tbe judges thereof, the Court of. Appeals is not bound to follow observations made therein with respect to any such point.</p>

<p>1. APPEAL AND ERROR: Bill of Exceptions: Sufficient Abstract: Abstract which Recites that Bill of Exceptions was Duly Filed, Held, Sufficient. Where the abstract recites that the Bill of Exceptions was “duly filed,” such recital is sufficient under rule 26, of this court, to present the questions involved for review.</p> <p>2. -: Assignment of Error: Where Points Made are Clearly Set Forth in points and Authorities, it is Unnecessary for Brief to Contain Separate “Assignments of Error.”</p> <p>On Rehearing.</p> <p>3. -: Judgments: Executions: Res Adjudicata: Record Held Insufficient to Present Question Whether Quashing of Execution was a Bar to the Issuance of Another Execution. Appellate Court cannot say that the quashing of execution issued upon first judgment there being no appeal, should be declared res adjudioata and a bar to the issuance of another execution, for the reason that the motion to quash the first execution is not contained - in Bill of Exceptions and therefore it does not appear that the execution was quashed upon a ground that would destroy the vitality of the judgment.</p> <p>4. ELECTION OF REMEDIES: Judgments: Misnomer: The Doctrine of Election Applies Where Second Suit is Brought on Same Issues after Judgment Thereon in First Suit, and the Bringing of Second Suit Held to be an Abandonment of all Rights Under -First Suit and Judgment. In a suit for rent where judgment for plaintiff misnamed defendant, and after execution thereon had been quashed, a second suit was brought by plaintiff for same rent involved in first suit, resulting in a final judgment in favor of defendant, thereby leaving the parties in the anomalous position of having two judgments on same issues, one for plaintiff and the other against him, held, that the doctrine of election applies and the bringing of the second suit on the same issues was an abandonment of all rights under first suit and judgment.</p> <p>5. EVIDENCE: Transcript of Justice of Peace: Record Cannot be Varied by Parol. Where the record shows that the amount sued for was an item of “rent $220,” and that judgment was rendered therefor, the record could not be varied by parol evidence so as to show that the judgment in second suit did not contain an item of $80 which was included in judgment rendered in first suit.</p> <p>6. APPEAL AND ERROR: Rehearing Reopens Case and Gives it the Same Status as if it Had Never Been Heard. The granting of a rehearing reopens the case and gives it the same status as if it had never been heard by this court.</p>

<p>Appeal from the Circuit Court of Clay County. — Hon. Frank P. Divelbiss, Judge.</p>

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

<p>Appeal from the Circuit Court of Miller County. — Sow. John G. Slate, Judge.</p>

<p>1. SALES: Delivery: Notice: Where Delivery is at Option of Buyer the Seller is Entitled to Reasonable Time after Notice to Make Delivery. Where the time of delivery is at the option of the buyer, the seller is entitled to reasonable time after notice to make delivery.</p> <p>2. -: -: Reasonable Time for Delivery Determined by Circumstances and is a Question for the Jury. What is reasonable time for delivery of livestock or other chattels is to be determined by the circumstances, and whether the chattel has been delivered and tendered within a reasonable time is a question for the jury.</p> <p>3. -: Usage: Usage at Place of Delivery Known to Both Parties to Sale, is Competent Evidence as to What Would be Reasonable Time for Delivery. Usage at the place of delivery, if known to both parties, is competent evidence going to the question of what would be reasonable time for delivery.</p> <p>4. -: Notice: Delivery: Where Buyer has Option of Fixng Time of Delivery, Seller has Reasonable Time after Notice to Make Delivery. Where option is given to the buyer to fix the time and the seller has no previous notice of time in which delivery must be made, then he is allowed a reasonable time after notice by the buyer of the time fixed by the latter for the delivery.</p> <p>5. -:- — : Reasonable Time Doctrine: Where Buyer had Option as to Time of Delivery Reasonable Time for Delivery after Notice, not Affected by Notice Delivery Would be Made on Day Fixed nor by Attempt to Deliver on Said Day as Demanded by Buyer. Where plaintiff notified defendant that he would deliver hogs on a certain day, unless the conduct of the parties in reference to delivery on said day constituted a modification of the original contract and was based upon a sufficient consideration, the rule as to reasonable time for delivery after notice from the buyer obtains, and plaintiff was not required to deliver by midnight of day named unless under all circumstances that was a reasonable time within which delivery should have been made, and the fact that an effort was made to make delivery on said day might have a bearing as to whether delivery on that day would be required under the reasonable time doctrine.</p> <p>6. -: Whether Attempted Delivery was Made at and Within a Reasonable Time Held a Question for Jury. Whether an attempt to deliver hogs was made within a reasonable time after receipt ot notice by plaintiff from defendant that hogs should be delivered* and whether midnight on the day of notice was a reasonable time of day to offer to deliver the hogs, the defendant being present at the stock yards at the time the hogs were being weighed to him, held, under evidence, to be a question for the jury</p> <p>7. -: Tender: Defendant Having Refused to Permit Any More Hogs to be Weighed to Him Plaintiff was Relieved from Making any Further Tender. Where defendant refused to permit any more hogs to be weighed to him, plaintiff was relieved from making any further tender.</p>

<p>1. UNINCORPORATED ASSOCIATIONS: Common-Law Company: Trusts: Blue Sky Law: A Common-Law Company Operating under Declaration of Trust Held to be an Unincorporated Association Organized to Sell Shares of Stock within the Terms of Blue Sky Law. A “Common-Law Company” operating under a declaration ot trust under the terms of which neither the trustees nor the shareholders could be held individually liable for the debts of the com eern, only its property being liable therefor, held, an unincorporated association organized for the purpose of selling shares of stock and to be within the terms of section 11,919, of article 7, chapter 108, Revised Statutes 1919, known as the “Blue Sky Law.”</p> <p>2. -: -- — : Licenses: Evidence Held to Show Plaintiff was Induced to Purchase Stock in a Common-Law Company on Fraudulent Representation that Company had Complied - with Blue Sky Law. In a suit to recover money paid for stock in a common-law company, which had not obtained any permit or authority to sell stock as required by the provisions of “Blue Sky Act,” under evidence, held, that the purchase whereby plaintiff was induced to part with his money, was not for an interest in oil leases, but for stock in said company, which could not be legally issued or transferred and made upon fraudulent representations that the Blue Sky Law had been complied with.</p> <p>3. ATTACHMENT: Pleading: Allegation that Debt Fraudulently Contracted, Established by Proof that Plaintiff was Induced to Part with his Money on Fraudulent Representations Though There was no Evidence that Defendant Disposed of his Property with Intent to Defraud his Creditors. Where an affidavit for attachment alleged that the “defendant fraudulently contracted the debt sued for,” such allegation was established by evidence plaintiff was fraudulently induced to purchase stock in common-law company on false representation that Blue Sky Law had been complied with, even if there was no showing that defendant disposed of his property with intent to hinder, delay and defraud his creditors.</p> <p>4. FRAUD:-A Representation Solely as to a Matter of Law Cannot be Made a Ground of Fraud, but an Untrue Representation that Law had Been Complied with, Held, a Representation of an Existing Fact, Sufficient to Support Recovery. A representation that the organization of a common-law company would protect the stockholders as fully as if regularly incorporated was a representation as to a question of law which could not be made a ground of fraud, but a representation that the law had been complied with in every respect, was a representation of an alleged existing fact which,, if untrue, entitled the purchaser of stock to recover the money paid therefor.</p> <p>5. ACTION: Money Had and Received: Estoppel: Plaintiff Held not Deprived of Right to Recover Money paid for Stock in Illegal Common-law Company. The fact that plaintiff had doubts about the legality of the organization of the company whereby stockholders would be exempt from individual liability and that he with defendant induced another to buy stock therein, did not deprive plaintiff of his right to recover in an action for money had and received where defendant obtained the money from plaintiff for which he gave nothing in return, and which he had no right to keep.</p> <p>6. BLUE SKY LAW: Police Power: Blue Sky Law is Proper Exercise of State’s Police Power. The Blue Sky Law is a proper exercise of the State’s police power.</p> <p>7. SALES: Contracts: Purchaser Held not to be in Pari Delicto with Seller and Entitled to Recover Money Paid for Stock Sold in Violation of Blue Sky Law, the Things Done in Part Performance of Illegal Contract being Malum Prohibitum not Malum Per Se.. Where plaintiff purchased stock in an illegal common-law company but after persistent investigations which convinced plaintiff that the organization and sale of stock were illegal, and before consummating illegal contract, abandoned the enterprise and rescinded the contract, thereby preventing the organization from being completed and business carried out in violation of the Blue Sky Law, held, plaintiff not in pari delicto and entitled to recover of defendant money unjustly received from plaintiff, the things done being malum prohibitum not malum, per se.</p>

<p>Appeal from the Circuit Court of Cass County. — Hon. C. A. Galvird, Judge.</p>

<p>1. DEPOSITIONS: Notary Public: Contempt: Jurisdiction of Notary to Commit Witness for Refusal to Answer Questions: Commitment of Witness Should be Only Until Such Time as Witness Answers Questions Propounded. Where a witness whose deposition was being taken before a Notary refused to answer certain questions propounded to him, and thereupon, for such refusal to answer, the Notary issued an order of commitment adjudging the witness to be in wilful contempt of court and thereby ordered him committed to’jail “Until the further order of the court or until he be otherwise discharged by due process of law,” it is held, that the • commitment of the witness was an act without the jurisdiction .of the Notary and fatally defective, the jurisdiction of the Notary under section 5428, Revised Statutes 1919, which outlines the procedure under which witnesses may be committed for refusal to answer questions, being' limited to committing the witness to jail until he answers the questions.</p> <p>2. HABEAS CORPUS: Person Imprisoned by Virtue of Commitment in Excess of Jurisdiction of Court can be Discharged by Writ of Habeas Corpus. One imprisoned .by virtue of a commitment in excess of the jurisdiction of the court rendering it can be discharged by writ of habeas corpus.</p> <p>3.--: Constitutional Law: Irregularity of Judgment and Commitment: Due Process: On Application for Writ of Habeas Corpus Court has Only to Determine Whether Judgment and Writ of Commitment are Regular upon Their Paces, and if Any Irregularity Appears the Prisoner Must be Discharged. On considering an application for writ of habeas corpus the court has only to determine ■ whether the judgment and writ of commitment are regular upon their faces, and if any irregularity appears the prisoner must be discharged as required by section 30, article II, of the Constitution of Missouri, and section 1, Fourteenth Amendment to the Constitution of the United States, under which such rights to due process are secured.</p>

<p>Appeal from the Circuit Court of Pettis County. — Hon. H. B. Shain, Judge.</p>

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

<p>1 EVIDENCE: Parol: Ambiguous Agreement: Where Partners Receipt was Ambiguous upon its Face as to Who was to Pay Commissions and There was Parol Evidence that the Same Should be Paid by Defendant Direct to Plaintiff, Defendant was Liable under Agreement. Where plaintiff and another were partners and in the employ of the defendant who was engaged in the business of selling automobile trucks, and plaintiff upon being discharged by'1 defendant executed a receipt and agreement, stating that it was in full for all deals with the exception of three other deals in which plaintiff had an interest as partner, and that if his co-partner made those sales, he was to receive his half of the commission, the agreement was ambiguous upon the face as to who was to pay the commission, but there being parol evidence that it was understood by all three parties concerned that defendant was to pay plaintiff direct, the defendant was liable up on the agreement.</p> <p>2 PARTNERSHIP: Implied Agreement: There Being an Implied Agreement Between Partners that Each is the Agent for the Other, an Employer of Partners was Authorized to Pay Full Commission on Sale to One Partner. In the obsence of any agreement defendant would have been within his rights in paying the entire commission to one of the partners, there being an implied agreement arising out of the relationship of the parties that one of the partners constitutes the other his agent.</p> <p>3. -: Partners May Agree with Employer that One Partner’s Share of Commisions Shall be Paid Direct to Him. Members of a partnership as individuals, together with the person with whom they are dealing, may enter into a contract founded upon a sufficient consideration in relation to how money should be paid, coming to them as members of the partnership, even though such agreement is inconsistent with the implied rights, duties and authority arising from an ordinary partnership relation.</p> <p>4. -: Agreement between Partners that Employer Should Pay One Partner his Share of Commission Direct, Held, Founded upon a Sufficient Consideration. Where partners were employed to sell automobile trucks on a commission, and one of them upon being discharged, signed a receipt stating that it was in full, with the exception of certain deals, and that if such sales were made, the discharged partner was to receive his half of the commission, direct from employer, the employer’s agreement to pay the share of commission to such partner, was founded upon a sufficient consideration.</p> <p>5. -: Partner may Sue upon Express Agreement Made to Him Individually Without Joining Co-partner. Where there was an agreement between partners and their employer that one partner whthad relinquished his right to look to his co-partner for his share of certain commissions upon sales made by co-partner, should be paid by employer individually and not as a partner, said partner could bring suit upon the agreement against employer without joining co-partner, as he would not be suing in his capacity as a partner but his action would be upon the express agreement had between the partners and employer.</p>

<p>1. CARRIERS: Negligent Delay: Where by Mistake in Billing Car with Freight Charges Collect Instead of Raid, Delivery to Consignee was Delayed, the Question as to Whether the Delay was so Unreasonable as to Render Carrier Liable, Held, for Jury. In an action for damages by shipper who prepaid freight charges, for failure to transport and deliver carload of alfalfa hay to consignee within reasonable time, the question of whether 12 days delay after arrival of car before delivery thereof was offered to consignee upon discovery of' a mistake made in billing car with charges collect, instead of charges paid, was so unreasonable as to render defendant liable for resulting damages, held, for jury.</p> <p>2. INSTRUCTIONS: Carrier Entitled to have Jury Consider Question Whether Consignee Refused Goods Because of Demand for Payment of Freight Charges and Consequent Delay, or Because of Inferior Quality. Where shipper had prepaid freight charges upon car of hay and upon arrival of car, shipper claimed railroads failed to deliver goods to shipper’s buyer without payment of freight charges, but railroads alleged buyer refused the hay because it was of inferior quality, it was error to refuse an instruction submitting to the jury the question as to whether the hay was refused because of the demand for payment of charges and consequent delay, or because of its inferior quality.</p> <p>3. TRIAL: Verdict: Judgment: Where Verdict in Suit Against Two Defendants Does not Find Against Either or Both Defendants, it is Insufficient to Support the Judgment. In a suit against two defendants, where the verdict returned recited, “We, the jury, find the issues for plaintiff and do assess his damages at,” a certain amount, the verdict, under section 1528 Revised Statutes 1919, was insufficient to support the judgment, in that, the verdict did not find against either or both of the defendants.</p>

<p>Appeal from the Circuit Court of Livingston County. —Hon. Arch B. Davis, Judge.</p>

<p>1. JURISDICTION: Appearance: Defects in Service Cured by General Appearance Made- by Filing Answer to Merits. In a suit to enforce tbe lien of a tax-bill for special street improvements, where copy of petition was not delivered to any of tbe defendants so far as appears from sheriff’s return of service of summons, and the clerk had no authority to issue the writ of summons without an order of court, whatever defects there may have been by reason of these matters were cured by the general appearance made by the defendants when they filed an answer wherein they raised general defenses to the merits.</p> <p>2. -■: -- — : Process: On Overruling Motion to Quash Writ of Summons, the Defects Therein were Waived by Failure of Defendants to Preserve Exceptions Thereto and to Appeal Therefrom. Where defendants filed a motion to quash the writ and dismiss.the case, on the ground that no copy of petition had been delivered to defendants so far as appeared from return of sheriff, and that the clerk had no authority to issue the writ without an order of court, which said motion to quash the court overruled, and defendants preserved no exceptions thereto nor took any appeal therefrom, but thereafter, filed an answer to the merits, such defects were waived and cannot be reviewed on appeal.</p> <p>t3. MUNICIPAL COEPOEATIONS: Tax-bill: Lien: Action to Enforce Lien of Special Tax-bill Held not Barred by Laches or Lack of Diligence in Prosecuting Same. Where defendant, owners of property, petitioned the city to have the improvement made and there was nothing objectionable in the way the work was done or the quality or character of the improvement, and defendants obtained the benefit thereof, an action to enforce the lien of a tax-bill therefor, cannot be defeated on the ground plaintiff did not exercise due diligence in prosecuting suit and was guilty of laches in that plaintiff did not have alias summons issued for more than five years after non est return on original summons, where petition had been filed and summons issued and placed in hands of ' sheriff three days before the expiration of limitation period, as defendants after being served with suit delayed moving in. the matter and were not prejudiced in any way unless it be in the increased interest they may have to pay, but that could have been prevented.</p> <p>4. -: *-: -: Lien of Tax-bill for Special Street Improvements Enforceable Though Computation and Apportionment of Costs Made by Clerk of Board of Public Works and not by Board Itself. Under article 9, section 18, p. 154, Charter of Kansas City, a tax-bill is “prima-facie” evidence of the validity of the bill, of the doing of the work, of the furnishing of the material charged for and of liability of the land to the charges stated in . the bill, and an action to enforce lien of such tax-bill cannot be defeated because the computation and apportionment of costs was made by a clerk of the Board of Public Works and not by the Board, itself, as the issuing of the bill of the Board is, in legal effect, the computation, assignment and levy of the tax, the act of actually computing the amount being merged in the act of the Board in approving the same by signing and issuing the bill.</p> <p>5. -: In Absence of Evidence Court cannot Hold as Matter of Law that Suit was not Brought in Good Faith with Intention to Prosecute Same to Judgment. In the absence of any evidence why an action to enforce lien of a tax-bill for special street improvements was not prosecuted mor'e diligently, court cannot say as a matter of law that plaintiff did not bring its suit in good faith intending to prosecute it to judgment.</p>

Prohibition. Original Proceeding. (1) It is not necessary to set out the particular constitutional provisions violated in words. State ex rel, Campbell v. St. Louis Court of Appeals, 97 Mo. 276; Baldwin v. Fries, 103 Mo. 286. (2) It is not necessary to refer to the sections of the Constitution violated by their numbers. State ex rel. Campbell v. St. Louis Court of Appeals 97 Mo. 276, Baldwin v. Fries, 103 Mo. 287.

— Hon. John A. Snider, Judge. (1) A drainag’e district is liable for the-negligence or unwarranted acts of its agents or employees in the performance of an authorized duty. Hunt v. Boonville, 65 Mo. 620; Dooley v. The City of Kansas, 82 Mo. 444; Worley v. Columbia, 88 Mo. 106; Quinn v. Schneider, 118 Mo. App. 39; Ely v. St. Louis, 181 Mo. 723.

<p>Appeal from the Circuit Court of the City of St. Louis— Eon. Granville Eogan, Judge.</p>

Habeas Corpus. Original Proceeding. (1) The proper action to dispossess petitioner was a suit in ejectment. Eees v. Andrews, 169 Mo. 192; Blythe et al. v. Hinckley et al., 84 Fed. Eep. 246. (2) The order committing the petitioner was unlawful and in excess of the authority of a chancellor. Section 28, article 2 of the Constitution of Missouri; Section. 1 of the Fourteenth Amendment to the Federal Constitution; Eees v. Andrews, 169 Mo. 192; Johnson et al. v. Monday, 104 Fed.

<p>1. SUBROGATION: Principal and Surety: Builders’ Bonds: Surety on Contractor’s Bond: Paying Claims: Entitled to Subrogation. A surety on a building contractor’s bond having paid the claims of materialmen under 'and in performance of its contract of surety-ship, is entitled to be subrogated to the rights which the contractor would otherwise have had in and to the funds which by the contract were required to be reserved as security for the payment of the unpaid bills for material and labor, and such right of subrogation is superior to any right which the contractor had to make assignment of such funds or any portion thereof to a bank lending him money, even though used by him to pay for necessary labor and material in the construction of the building.</p> <p>2. -: —■-: -: Release of Surety by School District: Rights of Materialmen and Labor not Affected. The unauthorized and wrongful diversion of a reserve fund by a school district, even though operating to release the surety on the contractor’s bond as far as the school district was concerned, did not and could not affect the right of materialmen and laborers, who were within the protection of the bond, to have recourse against the surety thereon, nor the surety’s equitable right to look to such reserve fund to the extent that it might be compelled to pay unpaid bills for labor and material.</p> <p>3. ELECTION OR REMEDIES: Surety on Contractor’s Bond: Suit Against School District: Following Diverted Funds: Consistent Remedies. Where a school district wrongfully diverted a reserve fund by paying it to a bank lending money to a contractor, the surety on the contractor’s bond did not make irrevocable election, as between remedies available to it, by bringing action against the school district to recover the amount of the bills paid for material and labor, and it could, after obtaining judgment against the district, bring action against the bank, as there is no inconsistency in suing the district for misappropriating funds, that were in effect trust funds, by the wrongful payment thereof to another, and in pursuing such trust funds into the hands of the party receiving same, though but one satisfaction may be had. r</p> <p>4. SUBROGATION: Surety on Contractor’s Bond: Following Diverted Funds: Burden on Surety to Show It Paid Claims out of Its Own Funds. In an action by a surety on a building contractor’s bond against a bank, seeking to follow funds which a school district had wrongfully diverted and paid the bank out of a reserve fund in its hands, in paying a loan which the bank had made to the contractor, and out of which fund the surety claimed the right to be repaid, the burden was upon the surety to show that it had paid out funds of its own, in the performance of its contract of surety-ship, entitling it to follow the fund received by the bank from the school district that it may be reimbursed for such loss.</p> <p>5. -: -: -: Assignment of Fund by Contractor: Effect. The assignment by a building contractor of a certain part of a reserve fund held by a school district, and which the school district accepted and acted upon, operated in equity to transfer to the bank such right as the contractor had, or which he might ultimately have in and to such fund; the surety being entitled to look to the fund, provided to be retained by the district for reimbursement for any moneys which it might be required to pay out as surety, and to follow into the bank’s hands the moneys paid to the latter by the district out of said fund to the extent that, the surety may be said to have been damaged or prejudiced by such payment, but no more than this.</p>

<p>1. FRAUDS, STATUTE OF: Vendor, who Received Entire Consideration, Held not Entitled to Invoke Statute. Vendor to oral contract for the sale of land which was subsequently reduced to writing as to one feature, cannot, after receiving the entire consideration to which he was entitled, invoke the rule that the statute requires all terms and provisions of such an agreement to be reduced to writing.</p> <p>2. EVIDENCE: Parol Evidence Rule not Applicable to Memorandum Showing it did not Contain All Terms. Where a writing signed by both parties to a contract for the sale of land did not, on its face, purport to cover the entire contract, but merely related to increased advance payments and the cost of the abstract, the rule that a written contract cannot be added to by parol evidence does not apply.</p> <p>3. APPEAL AND ERROR: Fact Findings Supported by Evidence not Disturbed. Findings of fact by the trial court, which are supported by convincing evidence, cannot be changed by the appellate court.</p> <p>4. JUSTICES OF THE PEACE: Statement before Justice Held to Support Judgment for Unearned Premium of Insurance Policy. A statement before the justice of the peace that plaintiff purchased from defendant real property under an agreement that the insurance policy covering it was to be delivered to plaintiff as part of the consideration, and that after the payment of the purchase money, defendant, without plaintiff’s knowledge or consent, obtained possession of the policy, had it canceled, and received and appropriated to his own use the unearned premium, was sufficient to support a judgment for the plaintiff for the amount of the unearned premium.</p>

— Hon. L. B. Woodside, Judge. (1) When a purchaser of real estate is accepted by the owner of the property, the agent is entitled to his commission irrespective of the purchaser’s financial ability to purchase. Wright v. Brown, 68 Mo. App. 577; Glade v. Eastern Illinois Mining Co., 107 S. W. 1002.

<p>Appeal from Circuit Court of Pemiscot County. — Ho». Sterling H. McCarty, Judge.</p> <p>(1) So, the sale of the half interest being fraudulent and void, the defendant and the. interpleader were still at the time of the attachment and trial joint owners of the truck, upon the theory of the law most favorable to them, and one joint owner cannot maintain replevin, or interplead for it, all must join in' the suit. Farmers ’ Savings Bank v. Trust Co., 196 S. W. 37; McCabe v. Transfer Co., 131 Mo. App. 531, 110 S. "W. 606; Ingals v. Alexander, 138 Mo. 358, 39 S. W. 801; Steckman v. Bank, 126 Mo. App. 664, 105 S. W. 674. (2) The record shows there was no explanation made by the witness. This evidence was incompetent, and permitted the inter-pleader to decide the case instead of the jury, and invaded the province of the jury and should have been excluded. Lutz v. Metropolitan St. Ry., 123 Mo. App. 499, 100 S. W. 46; Spaulding v. City of Edina, 122 Mo. App. 65, 97 S. W. 545; Miller v. Town of Canton, 112 Mo. App. 322, 87 S. W. 96. (3) This evidence was incompetent, as it was purely a self-serving declaration, made by the interpleader to the witness. 22 Corpus Juris, 220, sec. 193; Townsend v. Schaden, 275 Mo. 227; Steltemeier v. Barrett, 115 Mo. App. 323, 91 S. W. 56.</p> <p>(1) But in this case there is no proof that defendant was insolvent. Fraud cannot be inferred from the mere fact that the seller was in debt. State ex rel. v. Merritt, 70 Mo. 275. (2) Fraud will not be presumed when all the facts are consistent with honesty and fair dealing, and they do not show an intent to defraud. Henderson v. Henderson, 55 Mo. '534; Garesche v. McDonald, 103 Mo. 1. (3) Proof of prior debts, insolvency at the time of the conveyance, or that the grantor was rendered insolvent by such conveyance, a design to hinder, delay or defraud those to whom he is about to become indebted, are some of the marked indicia of fraud. Lander v. Ziehr, 150 Mo. 150.</p>

— Eon. Joseph I). Perkins, Judge. (1) The constitutional provisions relied upon can be as effectively infringed by repeated binding court decisions, amounting to judicial legislation, as by legislative enactments. Brannon’s, The Fourteenth Amendment, pp. 97, 98, 319, and cases there cited; State v. Guerringer, 265 Mo. 408; Ex parte Nelson, 251 Mo. 63; Dorrance v. Dorrance, 242 Mo. 625 ; Suess v. Imperial Life Insurance Company, 193 Mo. 564, 570.

<p>Appeal from Circuit Court of Dunklin County. — Eon. W. S. C. Walker, Judge.</p> <p>(1) A railroad is subject to special assessments for levee purposes under secs. 5714-5763 inclusive of R. S. 1909. Sec. 8057, R. S. 1909; 18 Ency. A. & E. (2 Ed.) p. 140 ; Stevenson v. Bacbracb, 170 111. 256; Aldrich v. Payne, 106 Iowa, 461; Fish v. Fowler, 58 Calif. 373; State v. McFetridge, 84 Wis. 514; Brocket v. Railway, 14 Pa. St. 243; Tiedeman Real Prop. (3 Ed.), sec. 3; Tiffany Real Prop., section 4; Tiedeman Real Prop. (3 Ed.), sec. 2; Tiedeman Real Prop. (3 Ed.), sec. 6; 2 Poll. & Mait. Hist. Eng. Laiv, 148; Tiffany Real Prop., sec. 4; Purifoy v. Lamar, 112 Ala. 123; People v.- Tax Com’rs, 101 N. Y. 322; People v. Cassity, 2 Lans. 298; People v. Cassity, 46 N. Y. 46; Toronto St. R. Co. v. Fleming, 35 H. C. Q. B. 264; N. Y. Bay R. Co. v. Neward, 77 N. J. Law, 270; L. & N. R. Co. v. Barber Asphalt Co., 116 Ky. 856.; Figg v. L. & N. R. Co., 116 Ky. 135 ; State v. Keokuk & W. R. Co., 153 Mo. 157; Railway v. Construction Co., 24 Ind. App. 114; Rich v. Chicago, 152 111. 18; Los Angeles Pac. Co. v. Hubbard, 121 Pac. 306; Railway v. Connelly, 10 Ohio St. 150. (2) The judgment of the condemnation suit is no bar to appellant’s present action because different proofs are required to sustain the two actions. Cromwell v. Sac. Co., 94-U. S. 351; Garland v. Smith, 164 Mo. 1; Wimpey v. Lawrence, 208 S. W. 54. (3) The judgment in the condemnation suit works no estoppel against appellant in this action because neither appellant nor its board of directors had any authority, by judgment or agreement, to exempt respondent from future “betterments, assessments and taxes” in said Levee District, if respondent received benefits from the construction of the levee. Such agreement is ultra vires •and void. Sec. 5735, R. S. 1909; Secs. 2360-2368 inclusive, R. S. 1909; State ex rel. v. Light & D. Co., 246 Mo. 618; State v. Taylor, 224 Mo. 393; Campbell Lbr. Co. v. Levee Disk, 186 Mo. App. 371; Birmingham Drainage Dist. v. Railroad Co., 274 Mo. 140; State v. Sheets, 214 S. W. 376; Univ. City v. Schall, 275 Mo. 667; Mullens v. Kansas City, 268 Mo. 444; Lamar Twp. v. City, 261 Mo. 171; Likes v. City, 167 S. W. 645; Cooperage Co. v. Lbr. Co., 187 Mo. App. 373; Belcher v. Cobb, 169 N. C. 689. (4) The defenses of res judicata and estoppel in pais were waived by respondent when it failed and refused to assert them in the proceedings to include its road bed in the levee district in the county court. Such defenses may be waived. 24 A. & E. Ency. Law (2 Ed.), p. 836; 23 Cyc., p. 1215. (5) . The description in the tax-bill of that part of the railroad assessed and taxed is sufficient. State v. Railroad Co., 101 Mo. 136. (6) The railroad has become a landmark easily capable of absolute location and identification. Whitwell v. Spiker, 238 Mo. 638; Walker v. Garner, 268 Mo. 494. (7) This court will take judicial notice of the location of this railroad. 16 Cyc., p. 861; Railway v. State, 72 Tex. 410; Miller v. Railroad, 83 Tex. 518; Railway v. Johnson, 29 S. W. 428; State v. Railway, 212 Mo. 658; Smith v. Black, 231 Mo. 681; City v. Coker, 124 S. W. 729; Railway v. Marrs, (1st case Tex. Civ. App.) 101 S. W. 1177; Lusk v. Pub. Serv. Corp., 210 S. W. 72; Land Co. v. Schneider, 177 S. W. 388; Yer Steeg v. Railroad Co., 156 S. W. 689 ; Ettenson v. Railroad Co., 154 S. W. 785; Sikes v. Railroad Co., 176 S. W. 255; Spaw v. Railroad Co., 201 S. W. 927; Darby v. Weber, 208 S. W. 116; Keaton v. Hamilton, 175 S. W. 967. (8) The description in the answer of respondent would cure any defect in the petition or tax-bill if such description were defective. Coulter v. Coulter, 124 Mo. App. 149; Ricketts v. Hart, 150 Mo. 64; Garth v. Caldwell, 72 Mo. 629; 31 Cyc., pp. 714-715; Willis v. Lockett, 26 S. W. 41.9; Yantilburgh v. Hamilton, 2 Mont. 413; 4 Ency. PI. & Pr., p. 608; Bliss Code PL, sec. 437; 1 Chit. PL 671.</p> <p>(1) We do not deny that there are various decisions by the courts of other States holding that, the term “lands” in the particular statutes being reviewed was inclusive of railroad rights of way. In none of those cases, however, does it appear that the Legislature used language as discriminatingly as the foregoing review of the different articles of chapter 41 shows it was used by the Legislature of this State. But in those cases in which the context of the statute has shown a legislative intent to exclude railroads and railroad rights of way, the courts have unhesitatingly given effect to that intent despite the use of the comprehensive term “lands.” Page & Jones, Taxation by Special Assessment, sec. 595; North Jersey Street Ry. Co. v. Mayor of Jersey City, 52 Atl. 300; Red Pork Levee Dist. v. St. L. I. M. Ry. Co., 96 S. W. 117; Chicago Rock Island & Pacific Ry. v. Ottumwa, 83 N. W. 1174. (2) Where the description is too indefinite and uncertain to form the basis of a valid assessment or lien, the action cannot be maintained, and no recovery had. State ex rel. Flentge v. Burrough, 174 Mo. 700, 74 S. W. 610; State ex rel. Ward v. Linney, 192 Mo. 49; 90 S. W. 844; State ex rel. Smith v. Williams, 216 S. W. 535; State ex rel. Wyatt v. Wabash Railroad Co., 114 Mo. 1, 21 S. W. 26. (3) “If the description in the assessment is defective, a correct description in the complaint cannot cure the defect.” Page & Jones, special assessments, sec. 1239. Evidence is not admissible to supply the defect in the description. State ex rel. Wyatt v. Wabash Railroad Oo., 114 Mo. 1, 21 S. W. 26. “Now right of way, of course, is land occupied for the easement., but it'has no fixed definite width in our law.” State ex rel. Wyatt v. Wabash Railroad Co., 21 S. W. 29.</p>

— How. E. P. Dorris, Judge. (1) The court should have required the State to elect as to which party alleged to have been libeled it would stand on. 210 Mo. 351; 186 Mo. 71; 232 Mo. 213; 62 Mo. App. 112; 148 Mo. 517; 50 Mo. App. 243; 160 Mo. 469.

<p>1 ANIMALS: Evidence of Other Acts Competent on Issue of Identity of Dog Killing Sheep. In an action under .Revised Statutes 1919, section 4351, for the value of sheep killed by a dog, evidence that shortly before and after the killing defendant’s dog was seen chasing sheep, and was seen killing a sheep five or six days before plaintiff’s sheep were killed, is competent on the issue of the dog’s identity.</p> <p>2. TRIAL: Evidence as to Dog’s Having been Seen in Neighborhood of Sheep Killing Held Admissible in Chief. In an action under Revised Statutes 1919, section 4351, for the value of sheep killed by a dog, where defendant’s counsel in his opening statement made alibi a defense, admission in chief of plaintiff’s evidence that the dog was often seen, in the neighborhood near plaintiff’s farm sometimes chasing sheep, was not error, though anticipating defendant’s evidence that dog was kept in cellar.</p>

— Hon. G. H. S'kinker, Judge. (1) Defendant’s motion to require plaintiff to make Ms account more definite and certain should have been sustained. R. S. 1919, sec. 1258; Bennett v. Robinson, 180 Mo. App. 56; Chillecothe Sav. Assn. v. Morris, 52 Mo. App. 612; Watkins v. Donelly, 88 Mo. 322; Meyer v. Chambers, 68 Mo. 626; McAdams v. Scudder, 127 Mo. 345; Gfeller v. Graefmann, 64 Mo. App. 162.

— Hon. O. S. Barton, Special Judge. (1) Where a pleading is amended in a matter of substance, a continuance should be granted, and if refused by the court, such refusal will be grounds for reversing tbe judgment. Tungstall v.. Hamilton, 8 Mo. 500; Risher v. Thomas, 1 Mo. 529, second Edit; McLane v. Harrison, 1 Mo. 501, Second Edit.; Riggs v. Fenton, 3 Mo. 28; Moore & Porter v. McCulloch, 6 Mo. 444.

<p>DIVORCE: Award of $1000 Reduced to $550. In a suit for divorce after a marriage lasting only eight months, where the evidence showed that the husband possessed property valued at about $15,000, all of which was accumulated before the marriage, and which consisted principally of real property in which the wife retained her dower interest, under Revised Statutes 1919, section 327, an award of $1000 as alimony was excessive and will be reduced to $550.</p>

— lion,, G. H. Skmker, Judge. (1) There is matter'of public policy involved in every divorce action. The marriage relation is the foundation of civil society and the public has an interest therein, and its rights are always before the court to be considered in an application for divorce.' The public is an interested third party in every such case. Moore v. Moore, .41 Mo. App. 176, 184; MeMakin v. Mc-Makin, 68 Mo. App. 57, 62-63.

<p>1. APPEAL AND ERROR: Presumed that New Trial was Granted on Weight of Evidence. Where the ground that the judgment is against the weight of the evidence is in the motion for new trial, and the reasons for a new trial are not given in the order sustaining the motion, the appellate court must assume that it was granted on that ground.</p> <p>2. -: Grant of New Trial Sustained on Appeal, if Good on Any Ground Set Out. Where an order granting a new trial does not specify the ground on which it was sustained,' on appeal the order will be sustained, if it is good on any ground set out in the motion.</p> <p>3. - — : New Trial: Must be Granted when Verdict is Result of Passion and Prejudice, and Discretion in Granting Will not be Interfered with. Whenever the trial court is satisfied that the verdict is the result of passion and prejudice, it is his duty to grant a new trial, and such discretion will not be interfered with, unless abused.</p> <p>4. -: Presumed that Court Did not Violate Statute in Granting Second New Trial. Trial courts have wide discretion in passing on motion for new trial, and the presumption obtains, in the absence of showing to the contrary, that the trial court did not violate Revised Statutes 1919, section 1453, in granting a second new trial.</p> <p>5. ATTORNEY AND CLIENT: Sustaining Demurrer to Petition Held a “Final Determination,’’ Entitling Attorney to Pee. Where an attorney has been retained to bring suit and to fight it in good faith to a final determination, the compensation to be at a fixed amount if he lost, and an increased amount if. he won, sustaining a demurrer to the petition held á “final determination” of the cause of action in the circuit court, entitling the attorney to his fee, and if he files an amended petition by leave of court, and subsequently withdraws it because no new facts are stated therein, such final determination is not thereby affected.</p>

<p>1. ANIMALS: Township Voting to Adopt Stock Law Must Join Group of rive. To authorize an election in one township under Revised Statutes 1919, section 4291, to restrain domestic animals from running at large in that township, it must join a group of five or more townships previously adopting the law.</p> <p>2. -: Township Voting on Adoption of Stock Law may Join Townships of Another County. One township joining a group of at least five townships, located in another county, previously adopting the law, could vote to restrain domestic animals from running at large in such township, under Revised Statutes 1919, section 4291.</p>

<p>Appeal from Circuit Court of Butler County. — Hon. Almon Ing, Judge.</p> <p>(1) An appeal lies from an order granting alimony and alimony pendente lite. Adams v. Adams, 49 Mo. App. 592; State ex rel. v. Seddon, 93 Mo. 520; Marx v. Marx, 94 Mo. App. 172; Motley v. Motley, 93 Mo. App. 473. (a) The power of the court to enforce an order for alimony pendente lite, though an adjunct to an action for divorce, is an independent proceeding standing-on its own merits, and in no way dependent on the merits of the issues in the divorce suit, or in any way affe.cted by the final decree thereon. State ex reí. Cerche v. Seddon, 93 Mo1. 520. (2) Since the Married Woman’s Act, she may contract and be contracted with, sue and be sued, and have enforced against her contracts, judgments, etc., and she can contract with her husband with the same freedom as with any other individual. Sec. 7323, R. S. 1919; Rice, etc. Co. v. Sally, 176 Mo. 107; O’Day v. Meadows, 194 Mo. 588; Bowers v. Daniel, 98 Mo. 289, 320. (3) A contract may be entered into between husband and wife before divorce is granted settling their property rights, her right of dower, alimony and alimony pendente lite. Gilsey v. Gilsey, 195 Mo. App. 407; Crenshaw v. Crenshaw, 276 Mo. 471; 19 C. J. 218. (4) A wife who has voluntarily accepted the provisions, benefits and fruits of a void decree, or of a void contract, is estopped to dispute that it bars her. Ecton v. Tomlinson, 212 S. W. 865, 867.</p> <p>(1) Respondent formally concedes that an appeal lies from an award of temporary alimony; suit money, and that the same is independent of the cause on the final merits. (2) A wife can contract with her husband directly.1 However such contract touching the marriage relation must not facilitate and promote divorce or encourage separation, or be collusive. See Authorities cited by appellant under this point, and Speck v. Dausman, 7 Mo. App. 165; Shirk v. Shirk, 75 Mo. App. 578; Blank v. Nohl, 112 Mo. 159; 13 C. J. 463; 9 Cyc. 519; 2 Bishop, Mar. Sep. & Div., sections 702, 703. (3) No contract may be made between husband and wife that promotes and facilitates a divorce by .attempting to bar suit money, attorneys’ fees, and costs. Banner v. Banner, 184 Mo. App. 396; Speiser v. Speiser, 188 Mo. App. 32:8; Harrison v. Harrison, 201 Mo. App. 465; Beardsley v. Bass, 229 S. W. 1092; Blank v. Nohl, 112 Mo. 159; Speck v. Dausman, 7 Mo. App. 165; 2 Bish. Mar., Sep. & Div. sec. 702, 703; 13 C. J. 463 ; 9 Cyc. 519. (4) The rule as to barring doweir does not apply to suit money and attorneys ’ fees and costs.* Ecton v. Tomlinson, 212 S. W. 865.</p>

<p>Appeal from Circuit Court- of Dunklin County. — Hon. W. S.-C. Walker, Judge.</p> <p>(1) The court erred in not sustaining appellants’ motion to quash the writ of certiorari. Certiorari will not lie in the case at bar because certiorari only goes to reach judicial actions and cannot be used to interfere with the exercise of legislative or ministerial functions of a court. State ex rel. v. Dawson, 225 S. W. 97; State ex rel. v. County Court, 237 Mo. 469. In the Matter of Saline County, 45'Mo. 52; State ex rel. v. Harrison, 141 Mo. 12; State ex rel. v. Casey, 210 Mo. 245; Sec. 780, R. S. 1909. (a) Even, conceding certiorari will lie in such a cause, such proceedings only bring up for review the record proper and matters de hors the record cannot be entered into. .Ward v. Board of Equalization, 135 Mo. 319; State ex rel. v. Board of Equalization, 108 Mo. 242. State ex rel. v. Baker, 170 Mo. 390; State ex rel. v. Smith, 173 Mo. 414; State ex- rel. v. Wiethaupt, 254 Mo. 329; In re Breck,’ 252 Mo. 327; State ex rel.. v. Broaddus, 245 Mo. 144; State ex rel. v. Doodrich, 2:57 Mo. 50; School District v. Tates, 161 Mo. App. 114; State v. Gilbert, 164 Mo. App. 143. (b) The fact that the petition in this canse consisted of more than one paper, does not invalidate the proceedings.. Sec. 780, ¡R. S. 1909; State ex rel. v. Weeks, 38 Mo. App. 566; State v. Smith, 38 Mo. App. 620; State v. Hitchcock, 124 Mo. App. 103; State ex rel. v. Simms, 201 S. W. 911; O’Laughlin v. Kirkwood, 107 Mo. App. 302.</p> <p>(1) Respondents are entitled to a writ'of certiorari in the case at bar hecnase the action of the county conrt in finding for or against petitioners was a judicial action and a writ of certiorari has been brought before this court numerous times upon questions of this kind. State ex rel. v. Forrest, 177 Mo. App. 252; State ex rel. v. Wilson, 129 Mo. App. 242; State ex rel. v. Johnson, 138 Mo. App. 306; State v. Ross, 177 Mo. App. 223; State v. Heege, 37 Mo. App. 338; State v. Dykeman, 153 Mo. App. 418. (2) Where the return to the writ of certiorari fails to deny any of the allegations in the application for the writ itself the right to institute the proceeding by certiorari will be conclusively presumed on appeal. (3) Respondents may contradict the return to show that it is incomplete and may introduce any documents or papers called for in the return hut' which are not contained in the return made by the court. State ex rel. v. Ellison, 220 S. W. 498; State ex rel. v. Ellison, 191 S. W. 49; State ex rel. v. Ellison, 176 S. W. 11; State ex rel. v. City of Kansas, 89 Mo. 34; State ex rel. Robertson, 188 S. W. 101; State ex rel. v. City of St. Louis, 67 Mo. 113; State ex rel. v. Ellison, 195 S. W. 722; State ex rel. v. Robertson, 197 S. W. 79; 22 University of Missouri Bar Bulletin, No. 9, page 35. (4) The court did not err in finding that election was called on petition of September 4, 1920, and quashing the record returned by the county court. The county court being an inferior court of limited powers its jurisdiction to call and hold an election must affirmatively appear by some part of the record of its proceeding or its action mnst be annulled. State ex rel. v. Forrest, 177 Mo. 252; State ex rel. v. Dunker, 150 Mo. App. 403; State ex rel. v. Heege, 37 Mo. App. 338; State ex rel. v. Cawthorn, 40 Mo. App. 94; State ex rel. v. City of Neosho, 57 Mo. App. 192.</p>

— Hon. Frank Kelly, Judge. (1) The court erred in the admissibility of testimony: (a) Because not based upon any pleading or issue in this case. Sims v. Dunham, 203 S. W. 652. (b) Because if defendant had not breached the contract and was entitled to damages by way of set off, this is not the measure of damages. Norris v. Letchwood, 140 Mo. App. 19; Norris v. Letehwood, 167 Mo. App.

— Hon. Grant Emerson, Judge. This is an industrial policy and is for death benefits, as shown by the terms thereof, and as defined by our laws (See R. S. 1919, section 6200), and was not an accident policy and no liability created in the event of an accident. 1 Joyce on Insurance (2 Ed.) page 86; Metropolitan Insurance Company v. Hardson, 208 Mass. 386, 94 N. E. 477.

<p>Appeal from Circuit Court of Greene County. — Hon. Guy D. Kirby, Judge.</p> <p>(1) We understand that it is conceded in this case that the same rules of evidence with reference to the competency of statements made by an agent is applicable to statements made by partners, because, in law, each partner is the agent of the other. We concede that there must be some independent testimony of agency or of partnership, as the case may be, before the statements or declarations of the agent or partner becomes competent evidence against the principal or other partner, as the case may be. But when there is independent evidence of agency, that is, evidence other than that of the acts and declarations of the alleged agent, then the acts and 'declarations of the agent are competent, including the declarations that he was acting as agent in the particular transaction. Most of the authorities, including those from Missouri, make such declarations or statements competent in corroboration. Werth v. Ollis, 61 Mo. App. 401; Union Bank v. Wheat, 58 Mo. App. 11; ITill Bros. v. Bank of Seneca, 100 Mo. App. ■ 230; Stave Co. v. Railway, 119 Mo. App. 502; Stenson v. Landcaster, 178 Mo. App. 346; Smith v. O’Briant, 181 S. W. 123; Sumner v. Saunders, 51 Mo. 89; Peck v. Richie, 66 Mo. 114; 31 Cyc. 1655; 21 C. J., page 939; 2 Wigmore on Evidence, sec. 1078; State ex rel. v. Henderson, 86 Mo. App. 490; Woodin v. Leach, 186 Mo. App. 278; Clark v. Admr., 26 Mo. 264; Meirs v. Buchter, 197 Mo. 68; Bergman v. Railway, 104 Mo. 77. (a) The same rule which makes the acts and declarations of an agent competent against his principal, likewise makes the acts and declarations of one partner evidence against another partner when such acts and declarations are in reference to matters connected with the partnership business. So, when there is independent evidence of .ithe partnership relation, then the statements and declarations of one of the alleged partners are always received in evidence against the others. Some of the authorities place the competency of such testimony upon the ground of res gestae, some upon the ground of verbal' acts, and still others upon the ground of corroboration; but without regard to the reason of such admissions, such statements are nevertheless' universally held to be /competent. Campbell v. Dent, 54 Mo. 331; Rainwater ¡v. Burr, 55 Mo. App. 468; Supply Co. v. Metcalf, 174 Mo. App. 560; Willoughby v. Hildreth, 182 Mo. App. 93; Huyssen v. Lawson et al., 90 Mo. App. 87; Kadie v. Kyle, 47 Mo. 345; 16 Cyc. 1031; 2 Modern Law of Partnership (Rowley), sec. 889, p. 1244; 2 Wigmore on Evidence, sec. 1078; 1 Greenleaf on Evidence (15 Ed.), sec. 112; (See note under this -section); Greenleaf on Evidence, art. 177; Conlan v. Mead, 172 111. 13, 49 N. E. 720; Hunes v. O’Brian, 74 Ala. 64; Hilton v. McDowell, 87 N. C. 364; 2 C. J., 939.</p> <p>(1) The court did not commit error in refusing to permit J. H. Hinerman to testify that H. M. Smith was a “partner” in the Hinerman Construction Company. Or when he became a member of the “partnership” or if he was a member of the “partnership” when-he signed a certain note, or in sustaining .objections to any testimony along this line. Such testimony calls for mere, legal conclusions and has no probative force in establishing the fact of partnership. Graft Distilling Co. v. Wilson, 172! Mo. App. 612; Ellis v. Brand, 176 Mo. App. 390; Wittling v. Schreiber, 202 S. W. 418; Brandon v. Distilling Co., 52 So. 641. (2) It was not .error for the court to refuse to admit the letters, Exhibit “D” and “C.” By all the rules these letters are incompetent. The case was dismissed as to Cope. So they were not competent as admissions against him. They were also incompetent because “hearsay” and because calling for legal conclusions. See authorities under Point 1; Rimel v. Hayes, 83 Mo. 200; Burt Zaiser v. Claussen, 208 111. App. 378; Smith v. ITulett, 65 111. 495. (3) The court did not err in refusing to permit certain witnesses to testify that Hinerman (or Cope) stated to them that Smith was a partner or had agreed to go into the partnership, and the offer made by appellant (app. abs. p. 35) was properly rejected by the court. These declarations as offered called for mere legal conclusions (See authorities under Point 1). Hearsay declarations of an alleged partner are not competent or admissible to prove the partnership as against another. Chamberlaine v. Fisher, 75 N. W. 931; Bank v. Leland, 25 So. 195; Dowzelot Co. .v. Rawlins, 58 Mo. 77; Plumbing Co. v. Dittmer, 223 S. W. 818; Hardware Co. v. Williams, 154 Mo. App. 725; Robbins v. Ward, 111 Mass. 244; Shaw v. Jones, 66 S. E. 240; Graham v. Swann, 147 S. W. 11; 2 Clement-Bates on Partnership, sec. 1151; Mecham on Agency, sec. 100; 30 Cyc. 409. (4) Such declarations of an alleged partnership, testified to by another, are not admissible to prove partnership, even after the partnership is otherwise prima facie established by competent evidence, A thing cannot be evidence to corroborate which is not evidence of itself.” Rimel v. Hays, 83 Mo. 200; Filley v. McHenry, 71 Mo. 417; Smith v. Hulet, 65 111. 495; Gardner v. N. W. M. Co., 52 111. 367; Pierce Oil Co. v. Zinc Co., 98 Mo., App. 329; Bank v. Hall, 93 S. E. 981; Bank v. Dewitt, 31 P. 744; Henry v. Willard, 73 N. C. 35-42; Robins v. Willard, 6 Pick 464; Walle v. Brown, 4 Wharton 365. (5) Such declarations offered simply to prove partnership or in further proof of partnership are to be distinguished from declaration offered after the partnership is established, which are in fact part of the res gestae verbal acts, or declarations which ■ show that at the time he was doing the thing, such as buying the goods or making the contract, the party was acting for the partnership. Henry v. Willard, 73 N. C. 35-42; Dowzelot v. Rawlins, 58 Mo. App. 77; Robbins v. Ward, 111 Mass. 244. (6) The instructions Nos. 4 and 5 offered by the plaintiff were properly refused by the court. See argument. Farris and Rosekopf Instructions to Juries, sec. 73; Wiedeman v. Tobacco Co., 165 S. W. 1105. (7) The instructions Nos. B and C given at request of defendant correctly declared the law, and presented the case properly under the pleading, and evidence and followed the same theory as plaintiffs given instructions. See argument and authorities cited thereunder.</p>