Volume 210 — Missouri Appeal Reports

Louis.— Hon. Victor H. Falkenhainer, Judge. (1) The court erred in refusing to direct a verdict for the defendant, (a) Because there was no substantial evidence that the release was procured by fraud, (b) Because plaintiff was guilty of. negligence in failing to exercise ordinary care in relying upon the alleged false representation in the procurement of the release and in failing to exercise ordinary care to ascertain the contents of the release before he signed the same.

— Hon. G. H. Skinker, Judge. The court erred in refusing to instruct the jury at the close of all the evidence to return a verdict for the defendant, on motion o'f the defendant, for the reason that the evidence was not sufficient to sustain a verdict on the pleadings and that under the uncontradicted evidence the defendant was not guilty of negligence as alleged in plaintiff’s petition: Schmidt v. Oil Co., 221 S. W. 389; Nevinger v. Haun, 196 S. W. 39; Spain v. Burch, 169…

— Hon. Fred Steward, Judge. (1) The court did not err in sustaining the demurrer and dismissing the plaintiffs ’ bill. O ’Malley v. Mo. Pac. Ry., 113 Mo. 319, 1. c. 325; 2 Thompson on Trials, sec. 2242; Boland v. Railroad, 36 Mo. 484; Davis v. Thompson, 209 Mo.. 192,1. c. 196.

— Hon. Sterling H. McCarty, Judge. (1) Under the facts as, disclosed by the testimony in this case respondent and appellant were the joint owners of the property sued for and a joint owner of personal property has no right to sue severally for its conversion, and this rule applies to an action against his co-owner. Johnson v. Stock Yards Bank, 102 Mo. 395. (2) Instructions which ignore or exclude issues, theories or defenses from the consideration of the jury are erroneous.

— Hon. W. S. C. Walker, Judge. (1) All the evidence in this case, both for plaintiffs and defendant, admits and concedes the plaintiffs did not fully perform the contract sued upon. There can therefore be no recovery in this suit for a breach of contract, and the verdict should have been directed for defendant as requested. Pull performance was pleaded, but non-performance was admitted by the testimony. Eyerman v. Mt. Sinai Cem.

<p>Appeal from the Circuit Court of Dunklin County. — Hon. W. S. C. Walker, Judge.</p> <p>(1) There was no testimony that respondent was an employee of Allen Cooperage Company, and that the relation of master and servant existed. Morgan v. Bowman, 22 Mo. 538; Long v. Moon, 107 Mo. 334; Benjamin v. Metropolitan Street Ry. Co., 133 Mo. 274; Carter v. Berlin Mills Co., 58 N. H. 52; 22 Am. St. Rep. 459-463; 33 Am. St. Rep. 692; Frye v. Hobert-Lee Tie Company, (Jan. 1, 1921) 226 S. W. 962. (2) There is no evidence in the record showing that the appellant was guilty of any negligence that caused the injury to the respondent. (See Abstract of the Record). Williams v. St. Joseph Artesian Ice and Cold Storage Company, 214 S. W. 388 (1919); Yarbrough v. Wisconsin Lumber Co., 211 S. W. 713,1. c. Col. 1 — 714 (1919); Frye v. Hobert-Lee Tie Co., (1921) 226 S. W. 962 (not officially reported, found in advance sheets of S. W. Reporter, February 23, 1921; Brighwell v. Lusk, 194 Mo. 643, 1. c. 649, 189 S. W. 413; American Brewing Assn. v. Talbot, 141 Mo. 674, 1. c. 683, 42 S. W. 679; Foley v. McMahan, 114 Mo. App. 442, 1. c. 445, 90 S. W. 113; Hysell v. Swift & Co., 78 Mo. App. 39; Glover v. K. C. Bolt and Nut Co., 153 Mo. 327, 55 S. W. 88. (3) If the relation of master and servant existed, there was no proof of negligence. Frye v. HobertLee Tie Co., 226 S. W. 962 (not officially reported, but found in advance sheets, S. W., February 23, 1921).</p> <p>(1) There was testimony that respondent was in the employment of appellant, and that the relation of master and servant did exist, which made it a question of fact to submit to the jury and the verdict is binding on appellant. Cannon v. Laclede Gas Light Co., 145 Mo. 502; Kellar v. St. L. Butchers Sup. Co., 229 S. W. 173; Smoot v. Kansas City, 194 Mo. 513. (2) Contracts of employment are subject to the same rules of construction as other contracts, and whether or not the relation of master and servant existed in this cause is a question of fact and is to be proved as other questions of fact. 26 Cy. 969, 971; Jewell v. Bolt & Nut Co., 231 Mo. 176. (3) Appellant is estopped 'to deny that a contract of employment existed between it and respondent by his conversation with respondent prior to his beginning the work at which he was engaged at the time of his injury. Cornvall v. Gauser, 85 Mo. 678; State Bank v. Frame, 112 Mo. 502. (4) Negligence is not a fact which is susceptible of direct proof, but an inference from fact put in evidence. When the facts are undisputed as in this cause, the question of whether an inference of negligence can be deduced is one of fact for the jury under proper instructions from the court. Hall v. Land Co., 173 Mo. App. 557; Hollweg v. Bell Tel. Co., 195 Mo. 149; Dean v. Railroad, 199 Mo. 386; Burton v. St. Louis, 248 Mo. 110; Lowe v. Railroad, 165 Mo. App. 542.</p>

<p>Appeal from the Circuit Court of Butler County. — Hon. Almon Ing, Judge.</p> <p>(1) Respondent was permitted to testify over the objections of appellant to what the conductor and brakeman said to him on another occasion as to the furnishing of cars. This was objectionable because it was not shown to be the duty of the conductor or brakeman to furnish cars; and for the further reason that the admissions of these agents were not made at the time of the transaction. And this is reversible error. Bevis v. B. & O. Ry. Co., 26 Mo. App. 19; McDermott v. Railroad, 73 Mo. 516; Adams v. Railroad, 74 Mo. 553; Atkinson v. School of Osteopathy, 240 Mo. 338; Robinson v. Bush, 200 S. W. 757. (2) The court erred in rendering a judgment for three times the amount of the verdict of the jury, over the objections and exceptions of appellant, and also in refusing to sustain the motion in arrest of judgment. This was clearly a penalty for the violation of the statute under which respondent brought his action. During the period of federal control penalties could not be collected against common carriers, even those fixed by the laws of the several States. Hines v. Taylor, 84 So. (Ela.) 381; Jackson-Tweed Lbr. Co. v. Sou. Ey. Co., 101 S. E. (S. C.) 924; Mo. Pac. Ey. Co. et al. v. Ault, 41 Sup. Ct. 593; No. 17 Adv. Sheets Sup. Ct. Eep. 593.</p> <p>(1) The court did not err in admitting in evidence the statements made by the conductor and brakeman (appellant’s abstract, pp. 17,18, 19), as these statements were made in explanation of the failure to deliver cars to plaintiff, and were made in connection with their work of handling and setting out cars on the sidetracks. Eobinson v. Bush, 200 S. W. 757; Heading & Stave Co. v. St. L., I. M. & S. Ey. Co., 119 Mo. App. 495. (2) The court did not err in refusing defendant’s instructions in the nature of a demurrer to' the evidence, at the close of plaintiff’s case, for the reason there was sufficient evidence on the part of plaintiff tending to show there was a preference shown the Eash Lumber Company in the distribution of cars. (Appellant’s abstract, page 14). .Shoptaugh v. St. L. & S. F. Ey. Co., 147 Mo. App. 8. (3) There was no shipment and nothing in the transaction pertaining to a shipment. The suit was for “unlawful discrimination” between shippers, and it is not a question whether the cars denied the plaintiff were intended for shipment within the State or without. It was sufficient that the offense Avas committed within the State. Puritan Coal Mining Co. v. Penn. Ey,, Co., 85 Atl. Eep. 426; Missouri Pacific Ey. Co. v. Larabee Mills, 211 U. S. 612 (and cases there cited); Bittman v. Mo. Pac. Ey. Co., 184 Mo. App. 424.</p>

— Hon. Peter H. Huck, Judge. (1) Plaintiff’s petition fails to state a cause of action against defendant. It neither alleges that the tools with which plaintiff worked were defective nor that the place furnished him to work was unsafe. To recover, one condition or the other must be pleaded and proved. Modlagl v. Iron & Foundry Co., 248 Mo. 587, 1. c. 602-3. (2) Defendant’s demurrer at the close of plaintiff’s case should have been sustained.

<p>Appeal from Newton County Circuit Court. — Hon. Charles L. Henson, Judge.</p> <p>(1) If the instruction given to the jury by the court upon its own motion is inconsistent with the petition and the cause of action stated in the petition, the inconsistency, if any, only amounts to a variance, and the error, if any, in giving said instruction was waived, because said instruction is based upon the evidence in the case admitted without objection, and without motion to strike, and because no affidavit of surprise was filed. Litton v. Railroad, 111 Mo. App. 140; Thomas v. Construction Co., 189 Mo. App. 623; Mekos v. Fricke, 159 Mo. App. 631; Senf v. Railroad Co., 112 Mo. App. 74; Harrison v. Coleman, 171 Mo. App. 633; Pancoast v. Gras Fixture Co., 60 Mo. App. 57; Wells v. Sharp, 57 Mo. 56; Lester v. Railroad Co., 60 Mo. 265; Conway v. Reed, 66 Mo. 346; Choquette v. Railroad Co., 152 Mo. 257; Mellor v. Railroad, 105 Mo. 1. c. 471. (2) The refusal to give the instruction requested by plaintiff was, therefore, erroneous, as the facts detailed in evidence by him constituted a contract. Smith v. Williams, 123 Mo. App. 479, 1. c. 485; Sawyer v. Walker, 204 Mo. 133, 1. c. 159; Brown v. Smith, 113 Mo. App. 59, 1. c. 66; S. C. 102 Mo. 437, and' one of special deposit, and not that of a general deposit. Dolph v. Cross, 153 Iowa, 289, 133 N. W. 669; In re Davis, 119 Fed. 950; Massey v. Fisher, 62 Fed. 598; Wester Tie & Timber Co. v. Brown, 196 U. S. 502, 49 L. Ed. 571, 25 Snp. Ct. 339; Smith v. Sanborn State Bank, 126 N. W. 779, 30 L. R. A. (N. S.) 517.</p> <p>(1) Under the pleadings and the evidence plaintiff was not entitled to recover. Bankruptcy Act, sec. 68, 9 U. S. Comp. Stat. 1916, sec. 9652, page 11705; 7 Corpus Juris, 144; Continental & Commercial T. & S. Bank v. Chicago Title & Trust Co., 229 U. S. 435, 33 S. Ct. Rep. 829, 57 L. Ed. 1268. (2) Having pleaded a special contract plaintiff must, in this action, under the present state of the pleadings, recover upon that pleaded contract, or not recover at all. Canaday v. Railway, 134 Mo. App. 282; Jenkins v. Clopton, 141 Mo. App. 74, 1. c. 100; Quigley v. King, 182 Mo. App. 196; Laclede Com. Co. v. Tudor Iron Works, 169 Mo. 137; Reifschneider v. Beck, 148 Mo. App. 725,1. c. 735; Shoemaker v. Johnson, 200 Mo. App. 209; Dethrage Lumber Co. v. Snyder, 65 Mo. App. 568; Cole v. Armour, 154 Mo. 333; Houck v. Hunter, 225 S. W. 1027; McNeely v. Carlyle, 219 S. W. 145; Warson v. McElroy, 33 Mo. App. 553; Hays v. Bunch, 91 Mo. App. 467; Cockrell v. Williams, 195 Mo. ■App. 400; Witmore v. Crouch, 150 Mo. 671.</p>

<p>Appeal from Butler County Circuit Court. — Hon. Almon Ing, Judge.</p> <p>(1) The court erred in refusing to instruct the jury at the close of plaintiff’s evidence and at the close of all the evidence in the case to find for defendant. Plaintiff’s own evidence shows that the hook or tong being used was a simple device, thoroughly understood by plaintiff, could be easily removed the wire cable and taken to the mechanic to be sharpened; that plaintiff knew that said tong or hook was very dull and blunt, and was likely to slip from the log; that plaintiff, nevertheless, continued to use said hook or tong and was therefore guilty of contributory negligence, as a matter of law. Humphrey v. Lusk, 196 Mo. App. 442; Rogers, v. Packing Co., 185 Mo. App. 99; Bathe v. Morehouse Stave and Mfg. Co., 199 Mo. App. 127; Williams v. Pryor et al., 272 Mo. 613, 1. c. 625; Gwinn v. McComas Hydro Power Co., 195 S. W. 504; Harris v. Kansas City Southern Ry. Co., 250 Mo. 567; Reynolds v. City Ice and Storage Co., 184 S. W. 934; Miller v. Mo. Pac. Ry. Co., 175 Mo. App. 349; Meyers v. O’Bear Nestor Glass Co., 129 Mo. App. 556; Kube v. Northwestern Coal and Mining Co., 209 S. W. 614. (2) The court erred in refusing to direct a verdict for defendant at the close of plaintiff’s evidence and at the close of all the evidence. Plaintiff’s own evidence shows that he knew that the hook or tong was very dull and blunt, and that it was not in a proper condition for use, but nevertheless, plaintiff without complaint or protest to the defendant continued its use and therefore assumed the risk. Pulley v. Standard Oil Co., 136 Mo. App. 172,1. c. 175-76; Holloran v. Union Iron and Foundry Co., 133 Mo. 470; Leitner v. Grieb, 104 Mo. App. 173; Meyers v. O’Bear Nestor Glass Co., 129 Mo. App. 556. (3) The court erred in refusing to direct a verdict for the defendant at the close of plaintiff’s evidence, and at the close of all the evidence in the case, because the record. disclosed that plaintiff used a very dull and blunt hook or tong, knowing that there was an extra hook that could be used, which amounted to the selection of an unsafe method of working in the case of a simple tool. Reynolds v. City Ice and Storage Co. (supra), 184 S. W. 934, 1. c. 935; Holmes v. Bradenbough, 172 Mo. 53; Yan Bibber v. Swift & Co., 228 S. W. 69. (4) The court erred in giving plaintiff’s instruction, which covered the entire case, and directed a verdict for the plaintiff, for the reason that this instruction assumes the disputed fact that the tongs in question were dull. Moon v. Transit Company, 247 Mo. 237; Clark v. Railroad Co., 242 Mo. 609; Wease v. Tool Co., 187 Mo. App. 716. The instruction should not impliedly assume the existence of a disputed fact. Stark v. Brygaman, 223 S. W. 946. An instruction erroneous because assuming a vital fact in the case is not cured by another instruction. Martin v. Woodlae, 226 S. W. 650. (5) The court erred in giving plaintiff’s instruction which covered the entire case and directed a verdict for the plaintiff, because the instruction fails to negative the essential fact that it was not plaintiff’s duty to report and take to the mechanic the tong or hook for sharpening. Humphrey v. Lusk (supra), 196 Mo. App. 442; Murdock v. Dunham, 206 S. W. 915; Rissmiller v. St. Louis etc. Co., 187 S. W. 573; Davis v. Metropolitan St. Ry. Co., 185 S. W. 1170.</p> <p>(1) There is no place in this case for the doctrine of assumption of risk, as contended for under Point 2 of appellant’s brief. Respondent’s injury was caused by the negligence of appellant in failing to furnish respondent with a reasonably safe instrumentality with which to work. The servant never assumes the negligence of the master. Morgan v. Mining Co., 141 S. W. 735; Allen v. Quercus Lbr. Co., 190 Mo. App. 399, 190' S. W. 86; State ex rel. Quercus Lbr. Co. v. Robertson, 197 S. W. 79; Bane v. Irwin, 172 Mo. 316; Jewell v. Bolt & Nut Co., 231 Mo. 194; George v. Railroad Co., 225 Mo. 406-413; McMurray v. Railroad Co., 225 Mo. 302; Patrum v. Railroad, 259 Mo. 109; Williams v. Pryor et al., 272 Mo. 613'. The servant only assumes the risk of the employment after the master has exercised ordinary care. (2) The burden is on the defendant to establish the contributory negligence of the plaintiff. Morgan v. Zinc Co., 199 S. W. 590; Edington v. Railroad Co., 204 Mo. 61; Strickland v. Woolworth & Co., 143 Mo. App. 528, 127 S. W. 628; Kile v. Light Co., 149 Mo. App. 354, 130 S. W. 89; Liston v. Railroad Co., 149 Mo. App. 231; 130 S. W. 381; Holman v. Iron Co., 152 Mo. App. 672, 133 S. W. 389; Peppers v. Glass Co., 148 S. W. 401; Kiser v. Railroad Co., 188 Mo. App. 169, 175 S. W. 98; Behncke v. Mining Co., 189 Mo. App. 639,175 S. W. 271; Martin v. Oil Co., 184 S. W. 127.</p>

— Hon. Sterling H. McCarty, Judge. (1) The first five assignments of error really involve but one question, and that is whether or not it was the duty of the trial court to direct a verdict for defendant.

— Hon. Guy D. Kirby, Judge. (1) The evidence upon the part of the plaintiff in chief tended to establish the following facts: First, that the car belonged to the defendant or at least bore his name and business, and was in possession of one of his employees at the time it struck and injured the boy.

— Hon. E. P. Dorris, Judge. (1) While a court at any time during the term may have jurisdiction and the power to alter or set aside a judgment entered at such term, any alteration or change in snda judgment by the court without notice to the party affected thereby is void and not binding on such party. Ault v. Brady, 191 Mo. 709, 728; Caldwell v. Lockridge, 9 Mo. 362; 23 Cyc., page 878f and cases cited in note 94.

— Hon. Grant Emerson, Judge. (1) The letter of October 24, 1917, Exhibit “F” is the only writing signed hy the party to be charged. This letter is not an acceptance of the terms of the written confirmation contracts signed by the plaintiff, Exhibits “B” and “D,” as it in no way refers to snch confirmation contracts so that the same may be identified from the writing resort to parol evidence. Marshall-Hall G-r. Co. v. Merc. Co., 203 Mo. App. 220; Hain v. Burton, 118 Mo.

<p>1. CONTRACTS: Contract to Supply Requirements of Buyer, Held Void for Want of Mutuality. Where, under contract between a medicine company and one selling its goods, the company contracted to sell and deliver goods in such reasonable quantities as the buyer might from time to time require in his territory, and the buyer agreed only to "sell goods delivered to him under this agreement," The contract was void for want of mutuality.</p> <p>2. PRINCIPAL AND SURETY: Sureties not Held Beyond Letter of Obligation. In determining the liability of sureties, the rule of strietissimi juris applies, and they cannot be held beyond the letter of their obligation.</p> <p>3. -: Guaranty Contracts Construed to Carry out Intention Expressed. Contracts of guaranty are to be construed according to the ordinary meaning of the language used and with a view to carry out the intention expressed.</p> <p>4. GUARANTY: Guaranty of Payment for Goods to be Sold Binding when Goods Sold and Delivered. Although a contract by which D. agreed to resell to the public such goods as he could, and to pay plaintiff therefor on its furnishing D. such goods, was not binding when made for want of mutuality, defendant’s guaranty of full and, complete payment by D. as set out in the agreement because binding when D. and plaintiff’s contract beeame an ereeuted agreement by performance and goods were ordered and delivered thereunder and in reliance on the guaranty.</p> <p>5. SALES: Contract Held One of Sale, not of Agency. Contract by a medicine company to furnish goods that buyer sold in prescribed territory, he Id a contract of sale and not of agency.</p>

— Hon. E. P. Doris, Judge. (1) Since 1844 down to yesterday it has been the law of this State that after condition broken the mortgagee in a chattle mortgage becomes the absolute owner of and is entitled to the possession of the property mortgaged. Robinson v. Campbell, 8 Mo. 365; Citator to date. (2) The item allowed by the jury to the defendants was not a matter within the jurisdiction of the trial court in this replevin suit. Ely v. Sutton, 177 Mo.

<p>1. DRAINS: Drainage District not Liable for Negligence in Prosecution of Work. A drainage district is not amenable to a landowner whose land is inside the district for damages caused by negligence in the prosecution of the work of constructing ditches.</p> <p>2. -: Landowner, Seeking Damages from Contractor, Must Show that Flooding of Land in Course of Construction of Ditches was Negligent. Contractor of 'drainage system was not liable to an owner of land within the district, which had been rendered fit for cultivation and had been turned back to its original condition by the building of dams to float barges used in the eoürse of the work, without a showing that sueh dams were not necessary, or proper, and that the consequent flooding the land was caused by a negligent disregard of landowner’s rights; the doctrine of res ipsa loquitur not applying.</p> <p>3 -: Landowner Cannot Object to Steps Resulting in Delay Taken by a Contractor and District in Construction of System. Where contract for construction of drainage ditches fixed the time of its performance and provided for payment of damages to the district for each day of delay in its performance and under what circumstances an extension of time could be secured, a landowner within the district had not right to object to steps taken by the contractor and the district, under sueh provisions, resulting in delay, in the absence of collusion between the district and the contractor.</p>

— Hon. Almon Ing, Judge. (1) The judgment cannot be sustained against appellant Railroad Company for tbe reason tbat the testimony fails to show that appellant, Bolton, at the time he shot respondent was performing any act for the Company which pertained to the particular duties of his employment. Milton v. Railroad, 193 Mo. 46; Snider y. Hannibal & St. Jo.

<p>1. BILLS AND NOTES: Indorser not Liable in Absence of Presentment, Demand, or Notice. Indorser on a promissory note is not liable where no presentment, demand, or notice was given.</p> <p>2. -: Provision for Attorney’s Fee Does not Make Non-negotiable. Provision for attorney’s fee in note has no. effect on “sum certain” ■ and does not affect its negotiability under Revised Statutes 1919, sections 788, 789.</p> <p>3. -: Person Signing on Back of Note Before Delivery an Indorser. The Negotiable Instrument Law, and not the law merchant, applies as between the parties to a promissory note, including one who signed before delivery, on the back thereof without indieating his status, and sueh signer is only liable as an indorser under Revised .Statutes 1919, sections 849, 850, and is entitled to notice of dishonor under sections 875, 901.</p>

<p>Appeal from Jasper County Circuit Court. — Hon. J. D. Perkins, Judge.</p> <p>“Where the bill states matter within the equity jurisdiction, but plaintiff fails to establish such equity, the rule is that the bill must .be dismissed and cannot be retained for the purpose of allowing legal relief to which plaintiff has shown himself entitled.” 16 Cyc, 111; Fowles v. Bentley, 135 Mo. App. 417-436; Miller v. Railroad, 162 Mo. 424; Mansfield v. Bank, 74 Mo. App. 200; Linden Inv. Co. v. Houstain, 221 Fed. 178.</p>

<p>Appeal from the Circuit Court of Greene County. — Hon. Guy D. Kirby, Judge.</p> <p>(1) The cashier was without power, by virtue of his office, and it is upon that alone that the claim of defendants that they were released is based, to make any such an agreement. Neither express authority nor ratification appears here. In fact, the contrary appears from the testimony of defendant, Stevenson, who was at the time a member of the board of directors of plaintiff, Bank of Mountain View. Hodiamont Bank v. Franklin, 215 S. W. 503, and authorities therein cited; Bank of Dexter v. Simons et al., 204 S. W. 837. (2) The notes in suit were retained in possession of the plaintiff, and carried on its books as an asset. There never was a written release, or renunciation of the rights of plaintiff. “. . . A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon. Sec. 908, R. S. 1919; Engle v. Brown, 202 Mo. App. 345, 216 S. W. 541; Pitt v. Little, 58 Wash. 355,108 Pac. 941.</p>

— Hon. C. H. Skinker, Judge. (1) The share given to the widow under section 349, R. S. 1909, now section 319, R. S. 1919, is no more “dower” than is the share given to her under section 351, R. S. 1909, now section 321, R. S. 1919. In both instances the widow is a “distributee,” not a “doweress.” If the $400 is to be deducted under one section, it certainly must be under the other. Howard v. Strode, 242 Mo. 210, 218, et seq. and cases cited.

<p>1. FIXTURES: Electic Light and Gas Fixtures Held Personalty. Electric light and gas fixtures of small value and simple character purchased by lessee, from a former owner of the building, to which they were attached in the usual way before lessor because the owner, and the removal of which would not injure the realty, "held, a mere personalty which did not pass to lessor with the realty.</p> <p>2. -: Whether Lessee Was Estopped to Assert Ownership of Light Fixtures, Held not Involved in Lessor’s Action to Recover Same After Removal. In a lessor’s action to recover electric light and gas fixtures removed by lessee, who purchased them from a former owner of the building, to which they were attached in the usual way, before lessor became the owner, lessee did not lose his right to assert ownership because the lease made no mention or reservation as to the fixtures, considering the small value and simple character of the articles.</p>

— Hon. Sterling H. McCarty, Judge. (1) Replevin will lie for the recovery of goods sold but not delivered even tbougb mixed, if of the same nature and a division of equal value can be made, such, as in the case of oats, wheat or corn, and each party may recover his aliquot part. 2 McQuillin’s Missouri Practice, page 1290, sec. 2093; Kaufman v. Schilling, 58 Mo. 218; Groff v. Belche, 62 Mo. 400; Huff v. Henry, 57 Mo. App. 341; Mine. Co. v. White, 106 Mo.

<p>1. DRAINS: Contractors Held not Liablé for Damage to Crops from Retardation of Flow of Water in Absence of Showing of Negligence. Where construction of dam was necessary to enlargement of drainage ditch, and the dam and spillways around it were constructed by drainage contractors under the direction of the engineer of the district authorized by law to control such matters, and in the manner ordered by the county court upon the petition of the taxpayers of the district, the contractors were not liable for damages to crops caused by retardation of flow of water by reason of construction of dam, in the absence of a showing that contractors were negligent, and that such negligence was the proximate cause of the damage.</p> <p>2. CONSTITUTIONAL LAW: Provision Precluding the Taking or Damaging of Private Property Without Just Compensation, Held Self-executing. Constitution, article 2, section 21, providing that private property shall not be taken or damaged for public use without just compensation, is self-enforcing, independent of any statute.</p> <p>3. DRAINS: District Can be Sued for Damages to Land Outside Thereof, but not for Damage to Land Inside of District Caused by the Proper Prosecution of the Work. Under Constitution article 2, section 21, prohibiting the taking or damaging of private property without just compensation, owner of property outside of drainage district may sue district for damages sustained in the performance of the work, but owner of land or crops in district damaged by the proper prosecution of the work cannot recover damages in suit against the district in the absence of a statute authorizing such suit; such damages being awarded and adjudged in the organization of the distrct.</p> <p>4. -: Organization of Drainage District not Subject to Collateral Attack. The legality of the organization of drainage district eould not be questioned in suit against distrct and drainage contractors for damages to crops from retardation of flow of water, since a drainage district is a municipal corporation, and the legality of its organization cannot be collaterally attacked.</p>

<p>1. . CORPORATIONS: Sending of Traveling Salesman to Solicit Orders not “Doing Business” in the State Within Statute as to Service of Process. A foreign corporation not licensed to do business in the State, having no place of- business in the State, but merely sending traveling salesmen to solicit and take orders, was not doing business ■ in the State within Revised Statutes 1919, section 2746, relating to service of process, in view of sections 9790-9792.</p> <p>2. COMMERCE: Permitting Service of Summons on Traveling Salesman of Foreign Corporation Restriction on Interstate Commerce. If Revised Statutes 1919, section 2746, was construed to permit service upon a foreign corporation by delivery of a copy of a writ upon a traveling salesman simply in the State to solicit orders, it would constitute an unlawful restriction on interstate commerce.</p> <p>3. PROCESS: Return can be Amended Only by Leave of Court. A sheriff may amend a defective return on a summons, but can do so only by leave of court, in view of Revised Statutes 1919, section 1277;</p> <p>4. -: Amended Return on Summons not Conclusive. In no event can an officer amend Ms return on a summons except for the purpose of making it conform to the facts, and an amended return is not conclusive and the action of the court in permitting the amend-men may be questioned on motion to quash execution. ,</p> <p>5. CORPORATIONS: Return on Summons Held Insufficient to Show Service on Poreign Corporation. A return on a summons, "I hereby certify that I executed the summons by delivering a copy of this summons to E. R., the Deft’s, agent in Burdine Township,” was insufficient to show valid service on a foreign corporation under Revised Statutes 1919, section 2746.</p>

— Hon. W. S. C. Walker, Judge. (1) Where the uncon.tradicted and undisputed evidence establishes that a representation made by the insured in his application for a policy of life insurance is false and untrue and that the matter so misrepresented contributed to the insured’s death, it is error to submit such issue to the jury, and the trial court should direct a verdict for the insurer. Smith v. Mystic Workers of the World, 196 S. W. 62; Gilmore v. Modem Brotherhood, 186 Mo.

— Hon. Almon Ing, Judge. (1) Any facts establishing the invalidity of the proceedings or any other fact or facts made prima-facie evidence by the introduction of the tax bill may be shown under a general denial. In fact, it is the only proper answer where the declaration counts upon a tax bill to show that the preliminary proceedings never ripened into a valid tax bill. Cushing v. Powell, 130 Mo.

— Hon. Guy B. Kirby, Judge. (1) Time for the performance of the contract could be extended only by the written consent of Cantrell. Revised Statutes 1919, sec. 2169; Ives v. Kimlin, 140 Mo. App. 303; Warren v. Mayer Mfg. Co., 161 Mo. 112-121; Rucker v. Harrington, 52 Mo. App. 481; Arky v. Commission Co., 185 Mo. App. 249; Lindhorst v. Orphan Asylum, 231 Mo. 391; Johnson v. Fecht, 185 Mo. 335; Wilt v. Hammond, 179 Mo.