Volume 22 — Missouri Appeal Reports

<p>1. Stenographer’s Fees — Stipulation—Practice—Waiver.—A stipulation, by the parties to an action, that the fees of a stenographer for taking the testimony may be taxed as costs, has the effect of submitting to the court the question as to the sum to be allowed, and waives the right to have the qriestion determined by a jury.</p> <p>í. -Under a stipulation that the court may tax a stenographer’s fees as costs in the case, if the court, of its own motion, refer the question as to the sum to be allowed, the referee’s findings thereon are advisory merely, and the court may disregard them and enter its order upon the evidence returned by the referee.</p> <p>3. -Under such a state of facts, the appellate court may set aside the trial court's findings, and remand the cause, with directions to the trial court to enter an order in accordance with the referee’s findings.</p>

<p>Divorce — Case adjudged, and the evidence held sufficient to make a case of habitual drunkenness against the wife.</p>

<p>Appeal from the St. Louis Circuit Court, W. H. Horner, Judge.</p> <p>Assessments for street reconstruction are special taxes. Cooley on Tax., ch. 20, p. 416; Rev. Stat., p. 1585, sect. 26 ; p. 1608, sect. 18; Newby v. Platte County, 25 Mo. 258 ; Garrett v. St. Louis, 25 Mo. 505 ; Uhrig v. St. Louis, 44 Mo. 458; Neenan v. Smith, 50 Mo. 525; Farrar v. St. Louis, 80 Mo. 378.</p>

• Appeal from the Greene County Circuit Court, W. F. (ieiger, Judge. An ordinance was necessary to carry into effect the power to change the grade of a street. Boon v. City of Utica, 2 Barb. 104; Fulton v. City of Lincoln, 2 N. W. Rep. 724; Saxton v. Beach et al., 50 Mo. 489; Thomson v. City of Boonville, 61 Mo. 282; Irvin v. Devors, 65 Mo. 625; Werth v. City of Springfield, 78 Mo. 107; Stewart v. City of Clinton, 79 Mo. 604; Wittier v. Cavender et al., 3 Mo.

<p>Appeal from tlie St. Louis Circuit Court, Shepard Barclay, Judge.</p>

<p>Appeal from the St. Louis Circuit Court, Shepard Barclay, Judge.</p>

F. Gteiger, Judge. The motion of the plaintiffs filed in this cause in the court below, to set aside and vacate the wrongful and unauthorized entry of satisfaction of the judgment on the margin of the record thereof by the attorney for the plaintiffs, and for an execution inconformity with said judgment, was the proper proceeding for the enforcement of said judgment against the defendant. Cohen v. Camp, 46 Mo. 179 ; Freeman on Executions, sect. 361.

tlie St. Louis Circuit Court, Shepard Barclay, Judge. A meclianic’s lien will attach, subject to a mortgage already on the property; and such mortgage attaches to the land and to the improvements thereon at the time. Haeussler v. Thomas, 4 Mo. App. 463 ; Reilly v. Hudson, 62 Mo. 383; Welch v. Porter, 63 Ala. 225; Hydraulic Co. v. Bormans, 19 Mo. App. 664; O'Brien v. Pettis, 42 Iowa, — ; Insurance Company v. Slye, 45 Iowa, 615.

<p>Appeal from the St. Louis Circuit Court, Shepard' ■ Barclay, Judge.</p>

Louis Circuit Court, George W. Lubke, Judge. The facts show a sale of property to which the law of preference of creditors does not apply. MacVeiyh v. Baxter, 82 Mo. 518; Holmes v. Braidwood, 82 Mo. 610; Rupee v. Alkire, 77 Mo. 641; Forrester v. Moore, 77 Mo. 651. The purchaser need not be actually ;aware of the intent on the part of the debtor to vitiate the sale.

<p>Appeal from the St. Charles County Circuit Court, W. W. Edwards, Judge.</p>

Thomas, Judge. The petition fails to state facts sufficient to constitute a cause of .action, because it fails to state that James N. Whitehead had paid his fare and was a passenger on the extra freight train, and fails to state that the extra freight train was a passenger-carrying train.

Louis Circuit Court, Amos M. Thayer, Judge. : The judgment is invalid for want of jurisdiction of the judgment plaintiffs. Rev. Stat., sects. 2985,. 2986 ; Farmers Bank v. Mather, 30 la. 283 ; Thayer v. Finley, 36 Ill. 262. The statement filed, was insufficient. Henry v. Estes, 127 Mass. 474 That the executions in ■question in the case at bar were issued in contravention of this statute is admitted; being in contravention •of the statute, they were void.

<p>1. Equity — Injunction—Taxes.—Iujunotio'u will not lie to prevent a mere formal wrong in the collection of a tax, where nothing substantial is involved in the case.</p> <p>•2. -Tender. — One who seeks to restrain the collection of an alleged illegal tax is not entitled to relief unless he tenders the taxes which are legally due.</p> <p>:8. -Equity will not restrain an act, the doing of which could work no substantial injury to the complainant.</p>

Charles County Circuit Court, W. W. Edwards, Judge. Evidence of an attempted compromise is improper. Smith v. Shell, 82 Mo. 215. Instructions containing abstract principles mislead rather than enlighten the jury. Chouteau v. Iron Works, 83 Mo. 73.

<p>Appeal from the Butler County Circuit Court, John Gr. Wear, Judge.</p>

<p>Appeal from the Scotland County Circuit Court, Ben. E. Tuenee, Judge.</p>

Louis Circuit Court, George W. Lubke, Judge. ’The fact that the bid by which it was sought to contradict the contract was in writing, made no difference, because the rule in-eludes all written, as well as all oral, communications between the parties antecedent to the execution of the written contract. Best on Evidence (Chamberlayne’s Ed.) sect. 226, note 1; Koehring v. Muemminghoff., 61 Mo. 403.

<p>1. Justices — Jurisdiction.—A justice’s jurisdiction in the city of St. Louis, in all civil cases, except landlord’s summons cases, is co-extensive with the boundaries of the city.</p> <p>2. -Constitutional Law — Special Laws. — A legislative act, changing the jurisdiction of justices in cities containing 100,000 inhabitants, is not a special law within the meaning of section sixty-three, of article four, of the constitution.</p> <p>3. -Appellate Jurisdiction. — A question which is so well settled by binding judicial decisions that it is not debatable, is not one which will oust the courts of appeals of appellate jurisdiction.</p> <p>4. Judgments — S atiseac tion — Levy—MarriedW omen — Husband anu Wipe. — A levy upon personalty and a release thereof upon a claim of exemptions by the wife, on the ground that the husband has absconded, is not a satisfaction of the judgment, and will not prevent a subsequent levy upon the debtor’s real estate.</p>

Louis Circuit Court, Shepabd Babclay, Judge. At. the date of the death of Hussmann, very little of the materials were delivered, and after that date the defendant became administrator, and no one was authorized to perform, or did perform, his contract, and such, contract -was ended by his death. Wharton-on Contracts, sects. 322-326, and note, and sect. 714; Allen v. Frumet Mining Co., 73 Mo. 688; Phillips on Mechanics’ Liens, sect. 62.

<p>1. Instruotons — Conversion.—It is error to submit to the jury the question whether the defendant “ unlawfully converted ” the plaintiff’s goods to his own use.</p> <p>2. —-- The only case in whioh such an error will not work a reversal is, where the question of law submitted is an abstract proposition not relevant to the issue, or where the verdict is manifestly for the right party.</p> <p>3. Appellate Practice. — Where the record contains no substantia evidence to support the allegations of the petition, a judgment for the plaintiff will be reversed, but the cause will not be remanded.</p>

<p>Appeal from the St. Louis Circuit Court, Shepard Barclay, Judge.</p> <p>The members of such societies are conclusively presumed to know their laws. Coleman v. Supreme Lodge, 18 Mo. App. 189 ; Yoe v. Howard Mut. Ben. Ass'n, 63 Md. 90; Aid Ass'n v. Leopold, 101 Pa. 111; Supreme Lodge v. Graw, 60 Tex. 569; St. Patrick Society v. McVey, 92 Pa. 610; Dolan v. Court Good Samaritan, 128 Mass. 439. Where the contract, as defined in the laws of the society^ makes the payments of assessments, or the member’s being in “ good standing,” a condition to the right of sharing in the benefit fund, a failure to pay such assessments, or to remain “in good standing,” will prevent a recovery on the certificate. Benevolent Society v. Baldwin, 86 Ill. 479; Madeira v. Mut. Ben. Soc., 16 Fed. Rep. 749; Zeigler v. Mut. Aid Ass’n, 1 McGloin (La.) 284; Dolan v. Court Good Samaritan, 129 Mass. 487; Karcher v. Supreme Lodge, 137 Mass. 368 ; Knights Golden Rule v. Ainsworth, 71 Ala. 436. The non-payment of contributions to the relief fund, at the time prescribed by the laws of the society, will preclude participation in said fund; and that, even though the defaulting member has not been formally suspended for such default, and though prevented by sickness from making payment. McMurry v. Supreme Lodge, 20 Fed. Rep. 107; Supreme Council v. McCurd, 111 Ill. 284; Fisher v. Schiller Lodge, 11 Ins. Law Jour. 164; Ancient Order of United Workmen v. Moore, 9 Ins. Law Jour. 485. A benevolent society is not estopped from enforcing a forfeiture of a policy for non-payment of dues, by the fact that one of its sub-agents attempted, without special authority for the act, to collect the past due payments. Mason’s Ben. Soc. v. Baldwin, 86 Ill. 479; Hall v. Supreme Lodge, 24 Fed. Rep. 450; Agnew v. Grand Lodge, 17 Mo. App. 254.</p> <p>It must appear by the evidence: (1) That the officers of the defendant were entitled to make the October assessment or call. (2) That they did make it in the. manner provided by the law of the society. (3) That Borgraefe was lawfully notified of the assessment. (4) That he was suspended in the manner provided by the laws of the order. All these things must appear, or the pretended suspension is void. Olmstead v. Farmer’s Mutual Insurance Co., 50 Mich. 200; Castner v. Farmer’s Mutual Insurance Co., 50 Mich. 273; Knights of Honor v. Johnson, 78 Ind. 110; Agnew v. Grand Lodge, 17 Mo. App. 254. There was a total failure of proof of these affirmative defences, and the pretended suspension is, therefore, void. Roswell v. Eq. Aid Association, 12 Ins. Law Jour. 695; s. o., 13 Fed. Hep. 840; Baker v. Citizens’ Mutual Eire Ins. Co., 51 Mich. 243; Pacific M. Ins. Co. v. Gall, 49 Mo. 329; Woolsey v. Odd Fellows, 1 Am. and Eng. Corp. Cases, 175; Hirschl on Law Fraternities, etc., 31-35. The suspension was not made in the manner required by the laws of the order. Schew v. Grand Lodge, 17 Fed. Hep. 214. The lodge waived the forfeiture or the right to make it. Bliss on Life Insurance, sect. 270; Frost v. Saratoga Mut. Ins. Co., 5 Denio, 154; Masonic Mut. Ben. v. Beck, 77 Ind. 203; Thompson v. St. L. Mut. Life Ins. Co., 52 Mo. 469; Hanley v. Life Ass’n, 69 Mo. 380; s. c., 4 Mo. App. 253.</p>

Lonis Circuit Court, Shepabd Babólay, Judge. The court below committed error in admitting testimony of witnesses as to the value of the plaintiff’s services, arid in instructions upon the measure of damages, because the cause of action is based upon a specific, definite contract in regard to the price to be paid for the services rendered. Crump v. Rebstock, 20 Mo. App. 37; Fox v. Pullman Car Co., 16 Mo. App. 122; Mansur v. Botts, 80 Mo. 651.

Louis Circuit Court, Daniel Dillon, Judge. Equity will not relieve against mistake, wkere tke party complaining kad witkin kis reack tke means of ascertaining tke true state of facts, and neglected to avail kimself of kis opportunities of information. Kerr on Fraud, 406-7; Story Eq. Juris , sect. 146; Brown v. Fagan, 71 Mo. 563.

<p>1. Replevin — Possession.—Mere naked possession will not support an action of replevin without general or special property in the plaintiff.</p> <p>2. Chattels — Right op Owner to Re-take. — The owner of a chattel, having the right of possession, may resume possession of it, wherever it may be, using only such reasonable force as may be necessary for that purpose.</p>

<p>1. Evidence — Attachment—Admissions— Commercial agency'. — Id • attachment, on the ground of fraudulent conveyance, or concealment by the debtor of his property, evidence of his statements as to his assets and liabilities, made by him to a commercial agency about six weeks before the suit was brought, is admissible on the ■ question of intent.</p> <p>2. -Statements made by a mercantile agency as to the debtor’s financial standing, upon the faith of which the plaintiff may have extended credit, are inadmissible under such an issue.</p> <p>8. -Books oe Account. — In such an action, the debtor’s booka of account, indicating the amount of funds in his safe immediately before the execution of the alleged fraudulent conveyance, are admissible.</p> <p>é, - Opinions. Under certain circumstances, it is not error ta permit the defendant, who is the debtor’s administrator, to give hia opinion as to the meaning of certain entries on the debtor’s books.</p> <p>5, -The debtor not having done any business since the alleged fraudulent conveyance, it is competent for Ms administrator to testify as to' the kind and character of assets wMch came into his hands as such administrator.</p>

Elijah Robinson, Judge. Statement of case by the court. This is a suit upon a negotiable promissory note, executed by defendant to Gí-eo. H. Rice, attorney for Empire Machine Company, and by him, as said at torney, endorsed and transferred to the plaintiff.

C. Sin-nett, Special Judge. ■Tile case is stated in the opinion.' I. The court erred in giving plaintiff ’s instruction and refusing defendant’s, for the reason that upon a negotiable promissory note, alleged to have been executed by the defendant in a name entirely different from Ms-proper name, he is not liable, except upon satisfactory and affirmative proof that he had assumed and used such name as indicative of Ms contracts, making it-thereby, for that purpose, his own…

Noah M, Ctvan, Judge. Motion for re-hearing overruled. Statement of case.' This is an action, in the nature of a bill in equity, to vacate certain entries, in the form of judgments, made by the circuit court of Johnson county. The undisputed facts, as alleged in the petition, and established at the trial, are, that at the February term, 1877, of said court, the plaintiff recovered judgment against the defendant, founded on a promissory note, for the sum of $439.36.

John P. Strother, Judge. Statement of case. This was an action by plaintiff against defendant for a balance due to the plainiiff’s intestate upon a contract between him and the defendant. The defendant in his answer admitted the' appointment of plaintiff as administrator, as alleged in the petition ; admitted the contract as therein averred; and also-admitted that he was indebted on the said contract in the sum charged in the petition.

John P. Strother, Judge. Statement of case by the court. This is an action for damages for personal- injuries received by plaintiff, Sarah Hinds, by falling into a ditch on one of the streets of the defendant, a municipal corporation. Suit was brought in the Saline circuit court. On a trial there had before a jury, the plaintiff was awarded one cent damages.

H. S. Kelley,Judge. Statement of case by the court. This is an action for the recovery of the possession, of personal property. The action was instituted by H. H. Simpson and James F. Bridgeman; afterward Simpson died and his administrator Fleming was made a-party plaintiff. As to some of the facts there was a contention between the parties. Other facts were admitted.

John P. Strother, Judge. Statement of case by the court. The original petition in this case was, in all respects, the same as the amended petition hereinafter set out in full, with one exception.

Louis Circuit Court, George W. Lubke, Judge. In a divorce proceeding the husband and wife are not competent witnesses as to vituperative epithets addressed to each other while they are alones, Neither should be permitted to relate private utterances ■of any description which have been addressed by the ■one to the other. Vogel v. Vogel, 13 Mo. App. 588 ; Miller v. Miller, 14 Mo. App. 421; Moore v. Moore, 51 Mo. 118 ; Buck v. Ashbrook, 51 Mo. 539.

F. Geiger, Judge. : Payment of claims for the deforcement of dower •can only be enforced by execution or proceeding against the lands out of which the claim or judgment arose.

Louis Circuit Court, Q-eokge W. Lujbke, Judge. Tbe laws of tlie endowment rank (Sec. 2, Art. 9), pointing out but the one way in which the beneficiaries could be changed, that w;ay is the only way, and necessarily excludes all others. Coleman v. Supreme Lodge Knights of Honor, 18 Mo. App. 181.

Louis Circuit Court, W. H. Horner, Judge. The general judgment against the appellants was erroneous ; the judgment should have been special against the property descending. The debt of the ancestor is the debt of the heir only in respect of the property received by descent. Metcalf v. Smith, 40 Mo. 572; Rev. Stat., sect. 2337. The judgment against husbands of heirs was erroneous. Wadsworth v. Henderson, 16 Fed. Rep. 447-451.

Louis Circuit Court, Elmer B. Adams, Judge. If it be true that this is a case where the affirmative specific performance of the contract is beyond the power of the court, its performance will be negatively enforced by enjoining its breach. Western Union Telegraph Co. v. Railroad, 3 Fed. Rep. 429; s. c., 1 McCrary’s Rep. 564.

<p>Appeal from the Butler County Circuit Court, John Gr. Wear, Judge.</p>

Louis Circuit Court, Shepard Barclay, Judge. Referees have a lien upon their reports and may ref use to file them, and may hold them until their fees are paid by the parties. Geib v. Topping, 83 N. Y. 46; Little v. Lynch, 1 How. Pr. 95 ; Ott v. Sohroeppel, 3 Barb. 57-63; Hoffman Ref. 77.

James M. Davis, Judge. Statement of case by the court. On the twenty-third day of December, 1874, the St. Louis, Kansas City and Northern Railway Company, whose eastern terminus was then the city of St. Louis, Missouri, leased a small tract of its land near its depot at Carrollton, Missouri, a station on its line between Kansas City and St. Louis, to Gr.

F. M. Blaok, Judge. The case is stated in the opinion. I. This limitation of the time for commencing suits for damages occasioned by the negligence of a carrier is unjust, unreasonable, and against public policy. Carriers cannot by contract limiting their common law liability — which they can do — exempt themselves from damages resulting from their own negligence. Read v. Railroad, 60 Mo. 199; Rice v. railroad, 63 Mo. 314; sect. 598, Rev. Stat.

Geo. W. Bunn, Judge. Statement of case by the court. This was an action to recover the value of a cow killed by one of defendant’s trains, in the city of Liberty, in this state. .

James M. Davis, Judge. Statement of case by the court. This is an action to recover damages for personal injuries sustained by plaintiff, a passenger on defendant's railroad train, in leaving its station at Chillicothe, Missouri. The facts, in substance, are that plaintiff was a passenger on one of defendant’s trains of cars, to be carried for hire to its station at Chillicothe.

John P. Strother, Judge. The case is stated in the opinion. I. The petition shows upon its face that deceased had once been married. Therefore, although he died while a minor, and left neither wife nor children surviving Mm, the father could maintain no action under the statute. Sects. 2121 and 2122, Rev. Stat. ; Barker v. Hann. & St. Jo. Railroad, 85 Mo — ; McNamara v. Staten, 76 Mo. 329. II.

James M. Davis, Judge. The case is stated in the opinion. I. The petition shows no cause of action. It does not state that the opening made by the tearing down said fence entered into any enclosure other than that of defendant. Nor that the fence removed was not on the land that belonged to defendant. The action is under the statute of trespass. Sects. 3921-2-3, Rev. Stat. ; Walthar v. Warner, 36 Mo. 146 ; Hewitt v. Harvey, 46 Mo. 370; Blewett v. Smith, 74 Mo. 406. II.

John P. Sxbotheb, Judge. Statement of case by the court. This is an action for damages on account of the wrongful ejection of plaintiff from one of defendant’s, trains. About six o’clock, p. m., on August 24, 1883, the plaintiff purchased a ticket from defendant’s ticket agent at St. Louis, “good for one first-class passage from'. East St. Louis to station between punch marks,” which: station was Mount Leonard.

L. K, Kinsey, Special Judge. The case'is stated iu the opinion. I. The evidence shows that, at the time of the levy, the interpleader told'the sheriff that the property levied on was his own and not the property of defendant in attachment. In such case the sheriff had no right to exact of interpleader a forthcoming bond under section 421, Revised Statutes.

M. Gr. Mo. Gregor, Judge. The case and facts are stated in the opinion. I. Until it is shown that the production of the primary evidence is out of the'party’s power, no other proof is, in general, admitted. The existence and execution of the original paper must first be proved, and that it was lost without the party’s fault. 1 Greenl. Evid., sects. 84, 558; 1 Phill. Evid. (5 Am. Ed.) 218; Christy v. Cavanaugh, 45 Mo. 375 ; Blondeau v. Sheridan, 81 Mo. 545. II.

James M. Davis, Judge. The case is stated in the opinion. I. There was no evidence of any consideration for the hiring, nor of the value of the animal killed. And the court erred in overruling demurrer to evidence. II. The evidence made the driver the servant of plaintiff, and plaintiff must bear the loss. Barry v. St. Louis, 17 Mo. 121; Morgan v. Bowman, 22 Mo. 538. I. Grounds of objection, not set forth in the motion for new trial, will not be beard in tbe appellate court.

James M. Davis, Judge. Statement of case by the court. This is action to recover the balance claimed on a contract between plaintiffs and defendant for furnishing-railroad ties.

James M. Davis, Judge. Statement of case by the court. The only facts material to be stated are as follows; On the thirteenth of June, 1883, Eli Gfapen, then ■being the owner of a lot in Kingston, executed a deed of trust thereon to William Wilmott, to secure an indebtedness of $1,300 for money borrowed of defendant, Nancy M. Perkins ; and on September 15, following, he •executed another conveyance to Wilmott, in trust to .secure said Nancy in the further sum of seven…

A. J„ Seay, Judge. The case is stated in the opinion. I. The existence of malice and want of probable-cause are both necessary to sustain an action for malicious prosecution. A petition which does not allege both states no cause of action. II. Defendant’s objection to introdiiction of evidence should have been sustained as to the whole petition.

M. Black, Judge. Statement of case by the court. The respondent was the owner of a lot fronting thirty-one feet on Main street, City of Kansas, having a depth of one hundred and thirty-one feet.

John P. Strother, Judge. Statement of case by the court. This action was instituted on February 27,1883, in the circuit court of Pettis county, on a promissory note given )]by the defendants for a certain farm leased to them by the plaintiff. The lease was made on February 28,1882, and was to terminate on March 1, 1883. The note became due January 1, 1883.

Noah M. Givan, Judge. Statement of case by the court. This was an action on a promissory note.' The an* swer set up the defence of a partial failure of consideration. The reply denied the new matter of the answer. The case was tried by the court sitting as a jury. . The bill of exceptions shows that “the defendant offered evidence tending to establish all the allegations of his answer. The plaintiff offered no testimony whatever.” No declarations of law were asked or given.

Andrew Ellison, Judge. Statement of case by the court. This action is based on a promissory note made by ¡defendants and payable to F. C. Harugrove, or order. It was assigned for value, before maturity, to the Macon Savings Bank. The bank made a general assignment, under the statute, to plaintiff.

B. J. Casteel, Special J acLge. Statement of case by the court. The information was for obstructing a public road by building a fence in it. At a special term, May 28, 1885, defendant pleaded not guilty, and the cause was continued. At the regular June term, 1885, defendant filed a motion to quash, June 18, 1885, which was overruled.

James M. Davis, Judge. Motion for re-hearing overruled. The case is stated in the opinion. I. Defendant’s motion to dismiss having’ been sustained, because of the failure to state a cause of action in the complaint, and because process could not issue on such a complaint, he is now estopped from asserting that the bond was valid. Potter v. Adams, 24 Mo. 159; Bray's Adm'r v. Seligman, 75 Mo. 31. II.

Circuit Court, Hon. Noah M. Givan, Judge. Statement of case by the court. This is a bill in equity asking for a personal judgment against defendant Meredith Rice for the unpaid balance of the purchase money for a certain tract of land, and for the enforcement of a vendor’s lien for the amount, so found, against the said land.

Joseph P. Grubb, Judge. Statement of case by the court. This is an action of replevin to recover a large lot of brick. The brick had been built into a building situated on lots three, four, five, twelve, thirteen, and fourteen, in block twenty-two, Bartlett & Russell ’ s addition to the city of St. Joseph, and were purchased by defendant at sheriff’s sale.

Hon. James M. Davis, Judge. Statement of case by the court. This action was begun Aug. 25,1882. The object was to obtain a restraining order.

M. G. MoGbegoe, Judge. Statement of case by the court. This is a case commenced by a bill in equity in the circuit court of Jasper county, Missouri, the object of which is to enforce the lien of a judgment obtained by appellant against one Frank Campbell in his lifetime, said Campbell having died alter obtaining the judgment, and having, prior to his death, conveyed to respondent Johnson the land, against which the lien is sought to be enforced, and at his death leaving no…

Turner A. GI-ill, Judge. Statement of case by the court. This action is to enforce a mechanic’s lien against property described in the petition. Plaintiffs contracted to build a brick building for defendants for the sum of $4,675.00. After the work was begun changes and additions were made at defendants’ instance, involving an alleged cost of‘$394.30.

<p>1. Statutes — Construction of — Costs.—Statutes, relating to the costs in any action, must be strictly construed.</p> <p>■2. -Circuit Attorney’s Fees — Conviction of Two Defendants. — In a conviction of two defendants under one indictment, where there is but one finding and one judgment, the circuit attorney is entitled to but one fee, under the statute.</p>

C. H. S. Goodman, Judge. The case is stated in the opinion. I. It is the settled law of this state, that if a party contracts to work for another for a specified term, and quits before the expiration of the term, without the fault of the employer or the act of God, no recovery can be had. Earp v. Tyler, 73 Mo. 617. II. The testimony totally fails to support the facts assumed by the court in the instruction given, of its own motion, against defendant’s objection. III.

Noah M. Hitan, Judge. The case is stated in the opinion. I. The telegram for plaintiff contained a mere offer, of which the answer by defendant does not show an unqualified acceptance. It was a conditional acceptance of an unconditional offer, and is no contract. Thomas v. Blackman, 1 Cal. (28 Eq. Ch.) 312; Palmer v. Scott, 1 Russell & Myln (High Ct.

James Parks, Special Judge. The case and facts are stated in the opinion of the court. I. The court erred in excluding the evidence tending to show that defendant was drunk at the time of the alleged uttering of the slanderous words, such proof having been offered to rebut the presumption of malice in fact, a fact proper to be shown in mitigation of damages. 3 Suth.

<p>Appeal from Vernon Circuit Court, Hon. Chas. G. Burton, Judge.</p> <p>Statement of case by the court.</p> <p>The plaintiff and defendant were married in Camden county, Missouri, June 3, 1864, where they lived about three years, and then moved to Yernon county, where they lived together as man and wife until September 7, 1884. Át the date of said marriage, defendant was a widower with three children by a former wife, and plaintiff was a maid twenty years old. The plaintiff files her petition in the circuit court of Yernon county, charging that defendant had offered her such indignities as rendered her condition intolerable; in that he had choked her ; tried to push her out of the house ; frequently accused her of infidelity; charged in the presence of her children and others that he was not the father of them; and called her a base woman.</p> <p>The defendant denies these allegations and sets up by way of cross bill, that plaintiff has offered him such indignities as renders his condition intolerable; that plaintiff has used abusive language to defendant, such as lion, snake in the grass ; and on one occasion drew a hatchet on him; that plaintiff has mistreated defendant’s children; that she advised his daughter to go to a house of ill fame; and in divers other ways tormented defendant.</p> <p>On the hearing of the cause at the May, 1885, term of the circuit court of Yernon county, the court found the issues in favor of the plaintiff and granted her a divorce, and two thousand dollars alimony.</p> <p>Defendant appeals.</p> <p>I. The evidence is not sufficient to sustain the decree and the plaintiff ’ s bill should be dismissed.</p> <p>II. In cases of this character, founded on alleged indignities, the attention of the court can not be confined to the particular acts alleged as ground for divorce, but the inquiry must necessarily involve the conduct,of .the parties toward each other for the period during which it is alleged the misconduct took place. Doyle v. Doyle, 26 Mo. 346.</p> <p>III. If a party contribute to the bringing about of the condition of things complained of, she shall not be considered the injured party. Harper v. Harper, 29 Mo. 303; Gillinwater v. Gillinwater, 28 Mo. 61; Coles v. Coles, 5 Stewart (N. J.) 547; Davis v. Davis, 4 C. E. Green (N. J.) 180 ; Derby v. Derby, 6 C. E. Green (N. J.) 36; Hughes v. Hughes, 44 Ala. 698; Soper v. Soper, 29 Mich. 305; Knight v. Knight, 31 Iowa 457; Skinner v. Skinner, 5 Wis. 449; Poor v. Poor, 8 N. H. 307.</p> <p>IV. Indignities must not only be proven, but it must appear from the evidence that they are of such a character as to render life intolerable, and that they did render life intolerable. English v. English, 27 N. J. Eq ; 13 C. E. Green, 579; Bishop Marr. and Divorce, sect. 719; Poor v. Poor, 29 A. D.</p> <p>y. In divorce cases the statute requires that the proceedings be had in the county where the plaintiff resides. Sect. 2175 Rev. Stat. The evidence shows that the plaintiff was a resident of Benton county when the petition was filed.</p> <p>I. If a husband frequently and falsely accuses his wife of infidelity, calls her a base woman, etc., this constitutes indignities and extreme cruelty, such as will authorize a decree of divorce under our statutes. Lewis v. Lewis, 5 Mo. 278 ; Miller v. Miller, 14 Mo. App. 419; Bahn v. Bahn, 62 Texas, 518 ; Carpenter v. Carpenter, 30 Kan. 712; Avery v. Avery, 33 Kan. 1; McMahan v. McMahan, 9 Oreg. 525 ; Kelly v. Kelly, 18 Nevada, 49.</p> <p>II. A party to a divorce suit does not cease to be the injured party, unless her conduct is such as to entitle the other to a divorce. Hoffman v. Hoffman, 43 Mo. 547.</p> <p>III. This court will defer to the findings of the trial court, and even in equity cases will not reverse unless the judgment of the lower court is clearly against the evidence. Erskine v. Loewenstein, 82 Mo. 309.</p> <p>IY. Plaintiff was, and for many years had been, a resident of Yernon county, and the fact that two days prior to the actual filing of her petition, she went to Benton county and lived there with her mother until her trial came on, will not constitute her a non-resident of Yernon county, in the absence of evidence that she went to Benton county with the design of making it her permanent home. Scovill v. Glasner, 79 Mo, 450; Walker v. Walker, 1 Mo. App. 404. Non-residence of a plaintiff in a divorce suit is a fact pleadable in abatement, and unless so pleaded, is waived. Werz v. Werz, 11 Mo. App. 30.</p>

Geo. W. Dunn, , Judge. Statement of case by the court. This action is explained by tbe terms of the follow- . ing petition : “Plaintiff states that Rufus Maget died in Platte county, Missouri, on the--day of---, 1884; and on the-day of July, 1884, plaintiff was appointed his administrator by the probate court of Platte county, Missouri, and duly qualified as such by giving bond, etc., as required by law. “ That among the assets of said estate, inventoried to plaintiff as…

John E. Hyland, Judge. The case and facts are stated in the opinion. I. The information must be verified by the oath of the prosecuting attorney, or by the oath of some person competent to testify, and who has knowledge of the commission of the offence charged. Sect. 1763,1764, Eev. Stat; State v. Hayward, 83 Mo. 299.

Geo. W. Dunn, Judge. Tlie case and facts are stated in the opinion of the -court. I. An alteration, to avoid a note, must be made with the knowledge of a party claiming a benefit under it, and a joint promisor or maker is not such a party. McCramer v. Thomson, 21 la. 244; Grockett v. Thomason, 5 Sneed (Tenn.) 342; Hunt's. Gray, 35N. J. 227; 1 Saw. on Leading Cases, 814; 1 Greenleaf on Evidence (13 Ed.) sect. 566; Lubbering's. Kohlbreeher, 22 Mo. 596. II.

Chas. Gr. Bukton, Judge. The case is stated in the opinion. I. The object of the notice was to inform the appellee that an appeal had been taken, and the notice was in substantial compliance with the statute. The plaintiff could not have been misled by it. Plaintiff knew, when it received this notice that it referred to this case and no other. II.

Turner A. Hill, Judge. The case is stated in the opinion. I. The plaintiffs went out of court of their own uccord, and, being out, were entitled to no further relief in the cause. Dumey v. Schaeffer, 20 Mo. 328 ; Shulter v. Boekwinkle, 19 Mo. 647; Pol v. Dominie, 46 Mo. 113; Koger v. Hays, 57 Mo. 339; Gentry v. Black, 32 Mo. 542; Chiles v. Wallace, 83 Mo. 84. II. Judgment for plaintiff, after voluntary dismissal h>y him, is invalid, without notice or process on defendant.

F. M. Black, Judge. Statement of case by the court. ' This is an action in replevin for recovery of the possession of a piano. The important facts are, that, on or before the fifth day of November, 1881, the plaintiff, through his agent at Kansas City, sold to Mrs. E. M. Thorpe, a piano.

E. L. Edwakds, Judge. Statement of case by the court. This is an action for wrongfully taking and converting personal property, consisting of wheat and corn. The material facts are, that one Hanawalt and Weise were partners in the milling business at Tipton, Missouri. Weise died in 1883.

Turnee A. ■Hill, Judge. Statement of case by the court. This was a suit brought in the circuit court of Jackson county, Missouri, September 1, 1884, and was returnable to the October term, 1884. The suit is founded upon a statement for merchandise sold to defendants Haller & Schandler, on July 17,1884, by Jacob Ambs Distilling Company of St. Louis, and an assignment of the account by said Jacob Ambs Distilling Company to plaintiff, who, as such assignee, brings this action.

H. g. Kelley, Judge. Statement of case by the court. This is an action on an indemnifying bond. The facts, necessary to be stated, are, that one Clements in June, 1883, was the owner of the horse in controversy. The horse was then kept in the pasture of one Dowis for hire.

E. Broaddus, Special Judge. The case and facts are stated in tlie opinion of' the-court. I. Husband may make a reasonable provision for his wife out of his estate. Wood v. Bradley, 76 Mo. 23; Moore v. Page, 111 U.S. 117. II. If the wife is allowed to manage and deal with the property as her own, and the husband assents to and recognizes it as hers, it becomes her separate estate.

Turner A. Gill, Judge. The case and facts are stated in the opinion. ' I. On the undisputed facts, Campbell, Bond, and the Bank of Commerce, were mortgagees of the property-in dispute without notice of the unrecorded conditional sale from plaintiff to the mortgagors, and said- defendants (Campbell, and others), as such mortgagees, being innocent purchasers, in good faith, of the property, the unrecorded conditional sale, relied upon by plaintiff, is void, and the judgment…

James H. Slover, Judge. Tke case and facts are stated in tke opinion of tbe court. I. The question presented for determination is a mixed one of law and fact. The burden of proving a sale is upon the party alleging it; and the fact of sale is to be determined by what passed between the contracting parties, at the time and place said alleged sale was made, if made at all. II.

C. H. S. Goodman, Judge. The case is stated in the opinion». I. The lower court had power to re-tax costs at a subsequent term. State ex rel. Clinton County v. Hann. & St. Joe. R. R. Co., 78 Mo. 575.

Andrew Ellison, Judge. The cqse and facts are stated in the opinion of the court. I. The contract was void at law, and the justice had no jurisdiction. Rev. Stat., sects. 2513, 2837; Lee v. Howe, 27 Mo. 521; Gupton v. Gupton, 47 Mo. 48; Ridgely v. Stillwell, 28 Mo. 400; Gruenewald v. Schaales, 17 Mo. App. 327; Bispham’s Eq. (2 Ed.) sects. 383, 388. II. Newland’s taking possession will not avail Enlow, even in equity. Luckett v. Williamson, 37 Mo. 388; Bisp. Eq.

Andeéw Ellison, Judge. Statement of case by the court. This was an action, begun in the circuit court, for the recovery of damages on account of the alleged killing of a certain mare, the property of plaintiff, by the defendant. One of the issues in the case was, as to whether or not the mare had been struck or run over by a train or engine of defendant. No one saw the mare injured.

James M. Dayis, Judge. Statement of case by the court. This was an action under section 809, Bevised Statutes, for double damages on account of the killing of certain hogs, the property of plaintiff. The action was begun before a justice of the peace. Prom a judgment there rendered against it the defendant appealed to the circuit court. The case was tried by the circuit court ■sitting as a jury. Judgment was again rendered against the defendant.

Andrew Ellison, Judge. The case and facts are stated in the opinion of the court. I. It was not shown that defendant ever took possession of the property under the lease. The officer’s return was not even prima facie evidence of such fact. Austin v. Coal & Mining Co., 72 Mo. 535. II. There was no proof of any negligent or careless management of either train. The collision was unavoidable, and it was impossible to stop the trains in time.

Andbew Ellison, Judge. The case and facts are stated in the opinion of the court. I. There was a misjoinder of two independent causes of action in one count of the petition. Sect. 3512, Rev. Stat.; Southworth Co. v. Lamb, 82 Mo. 247. And this point was properly saved by defendant’s motion to-strike out and compel plaintiff to elect. Christal v. Craig, 80 Mo. 367. II. There was no proof that defendant negligently permitted the steer to escape from the car, while in transit.

M. Gr. Mc-Gregor, Judge. Motion for re-hearing denied. The case is stated in the opinion. I. There are two counts in the petition — the first based on failure to ring the bell — the second, negligence in operating the train. No testimony was admissible under the first count; it did not state facts sufficient to constitute a cause of action.. It is not sufficient to show the bell was not rung; it was also necessary to show that the whistle was not sounded.

C. H. S. Goodman, Judge. The case is stated in the opinion. I. There is a misjoinder of five separate and independent causes of action in one count of plaintiff’s petition. This point is fully saved in the record. McCoy v. Yager, 34 Mo. 134; Otis v. Mechanics’ Bank, 35 Mo. 128; Van Hoosier v. Railroad, 70 Mo. 145; Dickson v. Railroad., 71 Mo. 575 ; Christal v. Craig, 80 Mo. 371. II.

Andrew Ellison, Judge. Statement of case by the court. This action was instituted in the circuit court of Sohuyler county, Missouri, to recover the sum of four hundred dollars, on account of alleged injuries to live stock belonging to plaintiff, while in transit over the railroad of defendant from Downing, in Schuyler county, Missouri, to St. Louis, Missouri, on or about the fifth day of January, 1884.

James B. Gantt, Judge. Statement of case by tlie court. Held: used, and occupied the same ; that said judgment or decree is yet unsatisfied and unreversed, and that both the Missouri, Kansas & Texas and the Missouri Pacific Railway companies had notice of that fact when they took charge and possession of said railroad; that Samuel Duncan is dead, and that plaintiff is entitled to his property,…

Andrew Ellison, Judge. The case is stated in the opinion. I. There was a misjoinder of three causes of action; two arising ex contractu, and one ex delicto. This objection was raised by demurrer and motions. Parker v. Rodes, 79 Mo. 88 ; Southworth v. Lamb, 82 Mo. 242; Clark v. Railroad, 36 Mo. 216. II. The proof shows the contract was rescinded. Pine v. Rogers, 15 Mo. 320 ; 2.Parson’s Cont. 678. III. The plaintiff expressly assumed the risk.

Gr. D. Burgess, Judge. Statement of case by the court. This was an action for damages against the defendant for debauching and seducing the daughter and servant of plaintiff, and was begun on the thirtieth day of September, 1879, in the common pleas court of Linn county.

John P. Strother, Judge. Statement of case by the court. This was an action upon a promissory note. The note was executed by the defendants, together with several others, to the Missouri Printing Company, a corporation under the laws of this state. The defendants executed the note as sureties. To indemnify the defendants as such sureties the principal in the note, one Fraker, gave to them a mortgage on certain personal property.

Jame» M. Davis, Judge. Tlie case is stated in the opinion. I. The instruction as to self-defence is founded on State v. Linney (52 Mo. 210). This is expressly repudiated in State v. Culler (82 Mo. 623). The evidence shows that if any one sought or brought on the difficulty, it was plaintiff. II.

Joseph P. Gírubb, Judge. Statement of case by the court. This was an action upon special tax-bills for the cost of macadamizing done by plaintiff on one of the streets in the city of St. Joseph, assessed against defendant’s lots. The case was tried by the court sitting as a jury upon the following statement of facts : “For the purposes of this case, the following statement of facts is agreed and entered into by and between the parties hereto: “1.

James M. Davis, Judge. Statement of case by the court. The plaintiff is an attorney at law. The petition in this case was in three counts. In the first count, the plaintiff sought to recover the value Of certain legal sevvices rendered by him for the defendant. That count need not be noticed by us, for the reason that no point is made here as to the cause of action stated therein.

Turner A. Gíill, Judge. ' Statement of case by the court. This was an action to enforce a mechanic’s lien against the property of the defendants Bunker and McEwen. The defendants Remick and Stone were the original contractors for the erection of the building on the premises described in the petition. The lien was sought on account of material furnished to the original contractors and used by them in the construction of the building. Remick «festone made default.

F. M. Black, Judged Statement of case by tke court. Tkis was an action on special tax bills for tke cost of paving one of the streets of Kansas City, apportioned to and charged against the lots of defendants fronting on such street. To the petition the defendants filed a joint answer.

C. H. S. Goodman, Judge. Statement of case by the court. On the ninth day of August 1881, the defendant filed in the probate court of Grundy county, his final settlement as administrator of the estate of W. W. Gordon, deceased. This settlement was continued by the court for want of notice.

J. B. ©ANTI1, Judge. Mover sed if remittitur is not made in ten days. Statement of case by the court.

M. G. McGregor, Judge. Statement of case by the court. This is an action to enforce a mechanic’s lien for material furnished by plaintiffs for the erection of a brick store house and opera house. Wallace was the contractor, and the other defendants were the owners of the property. The contract was. reduced to writing and signed, and the contractor gave bond, with the plaintiffs and D. C. McConey as sureties, for the faithful performance of the contract.

Andeew Ellison, Judge. Statement of case by the court. This action was begun in March, 1882, in the Macon circuit court, and, on change of venue, was taken to the Adair circuit court.

John E. Ryland, Judge. Statement of case by the court. Robert Simpson was convicted before the mayor of Warrensburg and fined one dollar and costs. From this conviction he appealed to the Johnson county criminal court, and gave his co-defendants R. M. Robertson and Adolph Spiess, as sureties. On a trial anew, in the appellate court, he was again convicted and fined five dollars and costs.