Volume 211 — Missouri Appeal Reports

Louis. —Hon. J. Hugo Grimm, Judge. (1) The court erred in refusing to give the jury the instruction to find for defendant, requested by defendant at the close of plaintiff’s case and at the close of the whole case, for the reason that plaintiff was not entitled to recover under any theory of negligence counted on in his petition, (a) Plaintiff was not entitled to recover under the Last Chance Doctrine.

<p>Appeal from the Circuit Court of Jackson County — Hon. Charles R. Pence, Judge.</p>

<p>1. ACTION'S: Litigant Having no Cause of Action in Courts of Another State Where Injury Occurred Has None in This State. If a litigant has no cause of action in the courts of another State in which his injury occurred, he has none in this State.</p> <p>2. COURTS: Transitory Action: Transitory Cause of Action Will be enforced in any State. The rule is fundamental that trial courts in any State will enforce a transitory cause of action "accruing in another State.</p> <p>3. MASTER AND SERVANT: Jurisdiction: Relation of Employer and Employee Under Kansas Workmen’s Compensation Act is Contractual: Courts of This State have Jurisdiction of Subject-Matter and Parties under Proper Personal Service. The relation of employer and employee under the Kansas Workmen’s Compensation Act is a contractual one and the courts of this State have jurisdiction of the subject-matter and parties under proper personal service.</p> <p>4. -: -: Action under Kansas Workmen’s Compensation Act Cannot be Brought or Maintained in Missouri. Where neither employer nor employee before occurrence of injury had taken any action to place himself without the operation of the Kansas Workmen’s Compensation Act (Gen. St. 1915, secs. 5938, 5939), the act being itself a part of the contract of employment, section 5930 thereof, providing that no action shall be brought or maintained outside of the State of Kansas, applies and no proceeding under the act to recover compensation for an injury occurring in the State of Kansas can be brought in the State of Missouri.</p> <p>5. ACTIONS: Contracts: Jurisdiction: Stipulation that Suit Could Only be Brought in the Forum of Place of Contract is Valid. The Compensation Act being a part of contract of employment, a provision thereof that suit could not be brought anywhere except in the forum of the place of the contract is valid.</p> <p>6. -: Statute Creating Right of Action May Impose Condition that Action Thereon Shall bo Brought Only in Local Courts. A statute which creates a right of action may impose the condition that an action thereon shall be brought only in the courts of the State.</p>

<p>1. INSTRUCTIONS: An Instruction Not Supported fay Evidence is Erroneous. In an action to recover an architect’s fee for preparation of plans and specifications for a garage which were to be approved by the defendant and the proposed tenant which was to occupy the same when constructed and ready for occupancy, an instruction submitting the question of approval by prospective tenant was ' erroneous where the evidence ' showed that before prospective tenant had an opportunity to pass upon plans and specifications the project was abandoned by defendant.</p> <p>2. -: Singling Out Evidence: Harmful Comment: Instruction Singling Out Part of Testimony and Containing Harmful Comment Held Erroneous. In an action by an architect to recover compensation for drawing plans and specifications,' an instruction that if defendant refused to examine the plans to determine whether they were satisfactory to him, then the fact that they were not approved by defendant is no defense, held, erroneous as singling out part of testimony and containing a harmful comment.</p> <p>3. CONTRACTS: Contention That Architect’s Plans Were Worthless on Account of Manner in Which Heating Was to be Provided Under Them, Held, not Supported fay the Evidence. In an action to recover compensation for drawing plans and specifications, the contention that the same were worthless because they provided for city heat when the city heating pipes could not be connected with building until extended thereto, held not supported by the evidence.</p> <p>4. -: Architect Held Entitled to Recover Compensation. Where contract of architect provided that in case of abandonment of building project by owner after plans and specifications were prepared and bids received that he should receive a fee of three and one-half per cent of the lowest bid, and the owner reserved the right to refuse to proceed further if, after bids were received, he found the cost of the .building to be greater than a specified amount, the owner could not abandon the building without paying architect for his work, "especially where the lowest bid was within the limit of cost.</p> <p>5. -: Failure of Owner to Secure Binding Construction Contract Held Not to Preclude Architect From Recovering Compensation. Where owner, after receiving bids, abandoned a building project, the fact that the bidder a few days after submitting his bid, wrote owner that the bid was subject to alteration to meet the change in the cost of material, did not preclude the architect from basing his commission on the bid as originally made as the failure to obtain a binding contract between owner and contractor was due to default of owner and his neglect to sign the contract.</p>

<p>1. INSURANCE: Representations: Warranties: Representations Made by Applicant for Membership in Fraternal Beneficiary Society Considered Warranties and When False Avoid Policy. Representations made by an applicant for membership in a fraternal beneficiary society are considered as warranties, and when false, will avoid the policy.</p> <p>2. -: -: -: Pills or Tablets Prepared and Used by Physician in His Practice as Regulatory Potions and Sold Without Any Claim That They Were in Any Sense Patent or- Propiretary Medicines, Held Not to be Patent or Proprietary Medicine Within Warranty in Application for Fraternal Insurance. Pills or tablets prepared by physician for use in his practice as regulatory potions and sold without any claim that they were in any sense patent or proprietary medicines, held not to be patent or proprietary medicines within a warranty contained in application for fraternal insurance that applicant had not used any patent or proprietary medicines within a period of three years.</p> <p>3. -: Beneficiary Not Precluded from Denying Truth of Report of Physician by Signing Proofs of Death Presented by Insurer Before Physician’s Report Was adopted as a Part of Proofs. Where beneficiary under fraternal benefit certificate following instructions of insurer signed proofs of insured’s death as presented to him by the insurer before report of a physician which was adopted in making up proofs had been submitted, beneficiary -was not precluded from denying the truth of such report.</p> <p>4. -: Whether Insured Answerd Falsely Questions in Her Application for Insurance Held For the Jury. Under the evidence the question of whether or not insured answered falsely, any of the questions in,her application for insurance was for the jury.</p>

<p>1. BANKS AND BANKING: Bills and Notes: Bank Not Authorized to Hold Collateral After Payment of Note Given to Secure a Note Previously Executed and Unpaid. Where note to a bank authorized bank upon nonpayment to sell collateral held by bank to secure the note, and provided that all the collateral after payment of note “be applied as herein provided to the payment of any other obligation or indebtedness due by the maker hereof to said bank or the holder of this note,” and the surplus, if any, after the payment of the note and any other indebtedness due by maker to the bank, together with all costs, be paid by maker, and that if proceeds of such collection or sale shall not be sufficient to pay “note, costs and all other indebtedness” the maker agrees on demand to make 'good deficit, held, the bank was not authorized to hold the collateral after payment of the note to secure other previously executed but unpaid note.</p> <p>2. BILLS AND NOTES: Ambiguous Language Contained in Note Prepared by Bank Construed Strongly Against Bank. Obscure and ambiguous language used in a note prepared by bank for maker’s execution to bank will be construed strongly against the bank.</p> <p>3. BANKS AND BANKING: Liens: Under Law of Oklahoma Bank Not Entitled to Lien on Collateral of Maker of Note, the Maker Not Being a “Customer” of Bank Within the Statute. Under a statute of the State of Oklahoma (Rev. Laws Okl. 1910, sec. 3854), giving a bank a genral lien upon all property in its hands belonging to a customer for the balance due to it from such customer in the course of business, a bank to whom the maker had given one note, and to which it thereafter gave a note in renewal of another note received by the bank from a third party, did not have a lien on collateral held by the bank to secure the renewal note, to secure payment of note first mentioned after maker’s payment of renewal note, the maker not being a “customer” of bank within the statute.</p> <p>4. -; -: Bank Does Not Have General Lien on Securities Deposited With it For a Special Purpose. Where securities are deposited with a bank generally and not for a particular purpose the hank has a general lien upon the same and they may he retained by the bank for a general balance or payment of other claims, but where the deposit is made for a particular or special purpose, this rule does not apply.</p>

<p>1. INJUNCTION: Jurisdiction: Judgment: Lapse of Term: Circuit Court has Jurisdiction to Assess Damages at Next Term After Dissolution of Injunction is Affirmed on Appeal.- Under section 1954, Revised Statutes 1919, providing that, upon a dissolution of an injunction, damages shall be assessed where a temporary injunction is dissolved and plaintiff appeals and the judgment is affirmed, the Circuit Court has jurisdiction to assess damages at its next term after such affirmation.</p> <p>2. -: Appeal and Error: Continuance of Injunction Pending Appeal Wholly Discretionary. The continuance of injunction pending appeal is wholly discretionary.</p> <p>3. -: Refusal to Continue Injunction Did not Affect Damages That Had Accrued. The refusal of the court to continue injunction did not affect the damages that had already accrued.</p> <p>4. APPEAL ANl> ERROR: Judgment: Points Raised by Appellant Held not to Affect the Question as to Whether the Entire Judgment was Appealed. Defendant, after appealing the entire judgment, had the right to raise such points as he desired in his brief but whether or not there was any merit in the points so raised would be a question for the appellate court on the submission of the case to it, and the points raised by appellant would not affect the question as to whether the entire judgment was appealed.</p> <p>5. -: Injunction: Injunction Held not Ancillary and Incidental to Main Cause of Action. Where in an action to recover back purchase money paid by plaintiffs to defendant for corporate stock on the ground of mistake, plaintiff asked and the court granted a temporary injunction restraining defendant from disposing of money paid defendant by plaintiffs under the alleged mistake of fact, field, that the .injunction was not merely incidental and ancillary thereto, and that the relief sought was entire and not divisible.</p> <p>6. -: Damages: Allowance of Fees for Legal Services Rendered Held Proper. Where the injunction is a part of the main case and it is necessary to try the whole case in order to get rid of it, .then defendant is entitled to fees for legal services covering the whole case.</p> <p>7. -: -: Interest: Allowance of Interest on Money Impounded by Injunction Order from Date of Filing of Suit Until Date of Dissolution, Held, Improper and to be Excessive. The allowance of interest upon money impounded by injunction order from date of filing of suit until date of dissolution of injunction, field improper and judgment was therefore excessive to the amount of interest allowed.</p>

<p>1. PLEADING: Bills and Notes: A Petition Pleading in Haec Verba Notes Sued on, and That by Reason of the Notes Defendant Guaranteed Payment, Held, After Answer Admitting Same and Verdict That Petition Alleged Guaranty and Stated a Good Cause of Action. A petition which pleads in Jiaec verba notes signed by the defendant on the back of which was an endorsement that defendant guaranteed the payment thereof, and alleging that by reason of the note defendant guaranteed the payment thereof and that upon demand defendant refused to pay the same, where the answer thereto admitted that defendant was guarantor upon the notes and after verdict,. held, to allege that defendant guaranteed the payment' of the notes and that the petition stated a good cause of action.</p> <p>2. MORTGAGES: Deeds of Trust: Guarantor of Payment of Notes Secured by Deed of Trust Does not Have Right of Creditor to Require Proceeds of Sale Thereunder to be Applied to Notes First Maturing. Where defendant guaranteed the payment of notes which, with another note, were secured by a deed of trust, he could not be classed as a creditor, the suit not being one between contending creditors and defendant, and j;o have the right of a creditor to require the proceeds of a sale under the deed of trust • to be applied to the notes maturing first,' and which were the guaranteed notes.</p> <p>3. -: --: Trustee- Under Deed of Trust Can Apply Proceeds of Sale Thereunder to Notes Last Maturing Where Earlier Notes Were Secured by Personal Guaranty. Where the terms of a deed of trust provided that, in case of default in payment of any part of debt and interest evidenced by certain notes maturing at different dates, the whole should become due, the trustee under the deed of trust in case of foreclosure was not required to pay the notes in the order of their maturity, but could apply proceeds of sale of mortgaged property first to payment of notes last maturing as the earlier notes were secured by personal guaranty.</p> <p>4. -: Bill and Notes: Payment: In Absence of Stipulation to Contrary Creditor May Apply Proceeds of Sale of Mortgaged Property to Payment of Unsecured Debt. In the absence of some contractual stipulation to the contrary where a creditor holds several notes against the same debtor, all of which were secured by a mortgage and on one or more of the- notes a personal security is bound as well, he is entitled to the benefit of all of the securities he has taken and may apply proceeds of sale of the mortgaged property to the payment of the unsecured notes and pursue the personal security for the payment of secured notes.</p> <p>5. BILL AND NOTES: Guaranty: In Applying Proceeds of Security Guarantor of Payment of Note Has no Greater Rights than Surety. Where a guaranty of notes was not one of collection only but was one of payment, the guarantor occupies the same position as an ordinary surety upon the notes, has no greater rights and cannot compel creditor to apply proceeds of another security to the guaranteed notes, rather than to other notes s :ured only by the other security.</p> <p>6. SUBROGÁTION: Guarantor not Entitled to Subrogation in the Absence of His Paying Off the Debt Guaranteed by Him. Where defendant, a guarantor, was not in same situation as a creditor but was primarily liable upon the '"ebt there were no superior equities in favor of defendant as between him and the plaintiff and defendant was not entitled to subrogation in the absence of his paying off the debt upon which he was guarantor.</p> <p>7. GUARANTY: Estoppel: Guarantor Held Estopped to Unge Compliance with Certain Contract Provisions. Where a contract between vendor, purchaser and guarantor of purchase money notes provided that the deed and deed of trust should 1 ueposited in escrow and delivered when a writ of attachment levied'upon the property was released the contention thatt the papers were delivered directly to vendor who accepted them and failed to release the attachment thereby impairing security and increasing liability of guarantor without his knowledge was waived, where thereafter guarantor accepted the deed to the property and repaired, the same as required by the contract and that prior to the foreclosure , the attachment was released.</p>

<p>1. EVIDENCE: Parol Evidence: BiUs and Notes: Contracts: Parol Evidence Held Inadmissible to Directly Contradict or Vary Terms of Promissory Note. Where a promissory note is a specific, unconditional written promise to pay a definite sum of money at a certain term, with an agreement therein that shares of stock attached thereto were held as collateral security, and during the life of the loan the payee of the note was entitled to receive all dividends on the stock, and nothing was said about the note being paid except from dividends or profits, nor about the note being can-celled if the profits did not pay the note, parol evidence, tending to directly contradict or vary the terms of the note in regard to the very matter about which the parties specifically and definitely expressed themselves and agreed upon in writing, was inadmissible.</p> <p>2. BILLS AND NOTES: Under the Evidence in Suit upon Promissory Note, Directed Verdict Held Proper. In a suit upon a promissory note, where the execution thereof was admitted, a consideration therefor conceded, and no competent evidence of any defensive matter offered, the court properly directed the jury to find for plaintiff.</p>

<p>Appeal from the Circuit Court of Jackson County.' — Hon. Willard P. Hall Judge.</p>

Louis.— Hon. Glendy B. Arnold, Judge. '¡Tlie court erred in giving the demurrers to both counts because: (1) Even if the policy had provided for forfeiture, it was waived by defendant. See letters from defendant’s officials. (2) As construed by defendant the policy was not subject to forfeiture. Brooklyn Ins. Co. v. Dutcher, 95 U. S. 269; Manhattan Ins. Co. v. Wright, 126 (Fed. 86.