Volume 24 — Missouri Appeal Reports

Louis Circuit Court, Daniel Dillon, Judge. A person, without fault on his part, sustaining an injury through direct contact with an obstruction • on the highway, may maintain a private action for damages. Fox v. 8'aolcett, 10 Alien, 535; Kessel ». Butler, •53 N. Y. 612; 1 Thompson on Negligence, 341, with •authorities therein cited.

<p>1. Practice — Evidence, Limitation op — Instructions.—Evidence which is competent for any purpose should not be refused, but the party desiring to limit its effect should seek to do so by instructions.</p> <p>3. -Incompetent Testimony, Stricken out on Motion. Incompetent testimony, or irresponsive answers which are incompetent as evidence, should be stricken out on motion, and a refusal to do so when the motion is made at once, may he prejudicial error.</p>

Louis Circuit Court, Daniel Dillon, Judge. It must be shown that the plaintiff knew that the retir-' ing partner was a member of the firm. Pratt v. Page, .32 Yt. 13. One transaction with the firm years before will not constitute the plaintiff a customer. Whitman v. Leonard, 3 Pick. 177; Costello v. Nixdorff,, 9 Mo. App. 505.

Louis Circuit Court, Siiepaed Baeolat, Judge. “A set-off is a cross-action.” “A set-off is not a defence to an action. It is the defendant’s action against the plaintiff.” Whitdicer v. Pope, 48 Ga. 15; Lewis v. Denton, 13 Iowa, 441, 442; (Junan v. Cunan, 40 Ind. 473; Kelly 'o. Gantt, 1 Gilm. (111.) 649.

Louis Circuit Court, Daniel Dillon, Judge. The defendant’s instruction number one should have been given, for the reason that there is no proof tending to show that ‘the loss resulted from the alleged negligent act. Nolan v. SMcJcle, 3 Mo. App. 300; Ward v. Andrews. 3 Mo. App. 275. The plaintiff’s instruction number one was . erroneous and should have been refused, for the reason that it is too general, and does not ■ state what facts, if found, will constitute negligence.

The plaintiff had no cause of action against the defendant until the time for payment had expired. Daniels v. Newton, 114 Mass. 530; Ripp stein v. Life Ins. Co., 57 Mo. 86. A demand for the execution of the note was necessary before the cause of action accrued to the plaintiff. Weil v. Tyler, 38 Mo. 545; Spears n. Bond, 79 Mo. 467; The State v. Mooney, 65 M >. 494. No demand was necessary, the entire contract having been repudiated. McKnigM v. Wat-Tcins, 6 Mo.

<p>1. Negligence — Question oe Fact. — If there is any evidence from which negligence is legally inferable, the cause must be submitted to the jury for the determination of that question.</p> <p>8.--Special Findings — Practice. —Answers by the jury to specific questions, which answers are not conclusive of the plaintiff’s contributory negligence, will not entitle the defendant to a verdict thereon in opposition'to the general verdict'in his favor.</p>

<p>Appeal from the St. Louis Circuit Court, Shepard Barclay, Judge.</p> <p>The mere removal of a tenant from the premises does not constitute a surrender. Prentiss ■». Ware, 10 Mo. 601; Kerr v.. Clark, 19 Mo. 132 ; Livermore v. Eddy, 33 Mo. 547 JDestrehan v. Seudder, 11 Mo. 484 ; Schuyler v. Smith, 51 N. Y. 309 ; Bacon «. Brown, 9 Conn. 334; Hemphill -a. Flynn, 2 Pa. St. 144.</p>

Louis Circuit Court, Shepard Barclay, Judge. The petition fails to state facts sufficient to constitute a cause of action. It does not state the facts which constitute the aegligence of the company in digging the alleged ditch and the facts therein stated constitute only damnum absque injuria.

<p>Appeal from the St. Louis Circuit Court, GJ-eorge W. Lubke, Judge.</p>

Louis Circuit Court, Amos M. Thayeb, Judge. The employment of a salesman to sell goods by sample and on credit, he not being intrusted with the possession of the goods, gives no authority to such salesman to collect payment for the goods so sold. Chambers v. Short, 79 Mo. 204 ; Butler v. Dorman, 68 Mo. 298 ; Seiple v. Irwin, 30 Pa. St. 513; Law v. Stokes, 32 N. J. 249; Clark v. Smith, 88 111. 298; Kormnan v. Monaghan, 24 Mich. 36; McKindly v. Dunham, 55 Wis. 515.

<p>1. Evidence — Contracts.—Subsequent declarations of parties to a contract are not admissible to alter or modify the contract, and' are not admissible to explain the contract where it affects the rights of third persons.</p> <p>8. Insurance, Contract of Construed. — Under a life insurance policy payable to “ my wife, Mary, and children,” a child of the insured by a former wife is a beneficiary under the terms of the policy.</p>

<p>Appeal from the St. Louis Circuit Court, Daniel Dillon, Judge.</p>

Louis Circuit Court, Shepard Barclay, Judge. Tke lien and tke petitions were fatally defective in describing a tract of land one hundred and fifty acres in extent, andin claiming alien and special judgment against the whole of said tract.

<p>1. Garnishment — Situs of Debt — Jurisdiction.—In garnishment pro-, ceedings, whereby a debt is sought to be condemned, jurisdiction is determined by the situs of the debt, and not by the residence of the garnishee or of his debtor.</p> <p>2. -In the case of foreign attachment or garnishment, the situs of the debt, for the purpose of determining jurisdiction, is where fche garnishee lives, unless the debt, by the terms of the contract creating it, is payable in another jurisdiction.</p> <p>B. -Residence oe Foreign Corporation. — a foreign corporation, formed in this state for the xiurposes of service only, is a resident of fche state where it was created.</p>

<p>Appeal from the St. Louis Circuit Court, Amos M. Thayer, Judge.</p>

Louis Circuit Court, George W. Lubke, Judge. There is no privity of contract between the parties, and the lien does not-arise from any equities between the parties, and is not enforceable in equity. Prendegast n. Pickards, 2 Mo. App. 193. A special tax bill has no validity or existence, save as a lien on the land charged by it. Seibert v. Qopp, 52 Mo. 182 ; Anderson v. Holland, 40 Mo. 600;

<p>1. Practice — Pinal Judgment. — There can be but one final judgment in a cause and that must dispose of all the parties to the record.</p> <p>•g. - Appeals — Premature.—An appeal from a judgment on demurrer in favor of one of several defendants, leaving the cause pending on petition and answer as to the others, is premature and must be dismissed.</p>

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

<p>Appeal from tlie St. Louis Circuit Court, W. T-T, Hoeneb, Judge.</p> <p>A hiring at so much a day, month, or year, no time being specified, is an indefinite hiring terminable at the will of either party. Mnger v. Brewing Co., 13 Mo. App. 311; Boogher v. Maryland Ins. Co., 8 Mo. App. 533; De Briar v. Minium, 1 Cal. 450; Wood on Master and Servant, 262-3. A-servant’s remedy for wrongful discharge before the ■expiration of his term, where he seeks a recovery for the full term, is an action for damages for breach of contract and not for wages earned, the doctrine of constructive service not being recognized in this country. Stone v. Y'imont, 7 Mo. App; 277; Moody v. Leverieh, 4 Laly, 401; Willoughby v. Thomas, 24 Grattan [Va.] 524; Wood on Master and Servant, 246 ; Rieles v. Yates, 5 Ind. 115; Wood v. Mayes, 1 W. & R. 166.</p> <p>Under the evidence in this case the hiring of the plaintiff was by the month, and not at will. Bleelcer v. Johnson, 51 How. Pr. 380 ; Beach v. Mullen, 34 N. J. Law, 343.</p>

<p>1. Negligence — Contributory—What Constitutes. — The question whether the plaintiff’s acts are such evidence of his contributory-negligence as will prevent his recovery, will depend upon the circumstances of each case. »</p> <p>3.--Practice — Non-Suit.—A plaintiff can not be non-suited on the ground that his contributory negligence conclusively appears from his own testimony if his conduct, under the peculiar circumstances of the case, is compatible with the exercise of reasonable care.</p> <p>B.--Damages — Erroneous Instructions — The error of giving-an instruction submitting elements of damages of which no definite evidence has been given, is not ground for the reversal of the judgment where the plaintiff has remitted enough of the verdict to cover all damages which could have been thus improperly found.</p>

<p>1. Master and Servant — Wrongful Discharge — Burden of Proof. In an action by a servant for damages for a wrongful discharge prior to the expiration of his term of employment, the burden is on the master to show that the discharge was for good cause.</p> <p>2, --Measure of Damages. — In such an action the measure of damages is, prima facie, the stipulated wages, and, in mitigation of such damages, it must affirmatively aj>poar that the servant obtained, or, by the exercise of reasonable diligence, might have obtained, other similar employment during the term.</p>

<p>Appeal from the St. Lonis Circuit Court, Shepard Barclay, Judge.</p> <p>The proof tends to establish a! different cause of action from that sued on. Link v. Vaughan, 17 Mo. 585 ; Barnum v. JStone, 13 Am. L. R. 389. There was no contract for the sale and purchase of the whiskey, either express or implied. Allen’s Adm’r v. Richmond College, 41 Mo. 301 ; Eads v. City of Carondelet, 42 Mo. 113; 1 Pars, on Cont., 475; 1 Story on Cont., sect. 378.</p> <p>One who receives goods sent to him, knowing that the sender claims that the receiver has purchased them of him,, can not, in the absence of mistake or fraud, appropriate them to his own use, and then disclaim the purchase. Wellaur v. Fellows, 48 Wis. 105; Hale v.. Van Dover, 67 Mo. 732; Coughlin v. Lyons, 24 Mo. 533 ; Button v. Railroad, 51 Mo. 153 ; Norton v. Railroad, 48 Mo. 387 j. I bo: v. Railroad, 45 Mo. 469.</p>

Joseph P. Grubb, Judge. The case and facts are stated in the opinion. I. The object of the statute to prevent betting and gambling was the protection of the public morals, and the court should have instructed the jury, as asked by defendant, that plaintiff could not recover. Story v. Brennen, 15 N. Y. 524; Hayden v. Little, 35 Mo. 418 ; 12 Metcalf (Mass.) 327; 11 Cushing (Mass.) 358.

John P. ■'Strother, Judge. The case is stated in the opinion. I. The court erred in admitting in evidence the paper called “a proof of loss,” because said paper does not comply with any of the requirements of the policy sued on. And, as is shown by the pleadings, it was abandoned by the plaintiff. It does not contain a particular account of the loss sustained, or of the property destroyed, such as is required by the terms of the policy, and is, therefore, insufficient.

Turner A. Gill, Judge. The case is stated in the opinion. I. The purport of the letter, written by defendants, could not be explained by the parol evidence of the defendants. 1 Greenl. Evid., sects. 87, 88, 463, 466; Chamorgan v. Quisse, 1 Mo. 141; Ashley v. Bird, 1 Mo. 640; Bunce v. Beck, 43 Mo. 266; Qarnhart v. Finney, 40 Mo. 449.

George W. Dunn, Judge. The case and facts are stated in the opinion, of the court. I. It is the settled law of this state that declarations of the party in possession of the property in controversy are admissible in evidence to explain the character of the possession. 2 Whart. Evid. (2 Ed.) sect. 1166*; Darrelt v. Donnelly, 38 Mó. 492 ; Burgert v. Boreheri, 59 Mo. 87.

Henry S, Kelley, Judge. The case is stated in the opinion. I. The circuit court had no jurisdiction under the decision of the Supreme Court to enter any judgment, except to eliminate that part allowing alimony to the wife, and the judgment in this case is absolutely void. Chouteau v. Mien, 74 Mo. 56; Hwrclc v. Er shine, 50 Mo. 117; Shroyer v. Nickel, 67 Mo. 589 ; sects. 3776, 3779, Devised Statutes. II.

G. D. Burgess, Judge. The case is stated in the opinion. I. The court erred in overruling motion to dismiss, and in arrest. The record discloses no jurisdiction in the mayor, and it cannot be presumed. The court can not take judicial notice that Salisbury is a statutory city of any class ; or of its officers or ordinances.

G-eorge W. Dunn, Judge. Statement of case by the court. This is an action in form for money had and received. The petition alleges that on the twenty-second day of March, 1883, the plaintiff and one Franklin Carter were partners, and that on that day they let the defendant have of their partnership money the sum of five hundred dollars, whereby defendant became indebted to them in that sum.

L •Wallace, Judge. The case and facts are stated in the opinion. The petition does not state facts sufficient to constitute a cause of action, nor justify the judgment appealed from, in this: For anything therein appearing, there is a full and adequate remedy at law by an action against defendant and his securities on Ms official bond ; and the injunction should, therefore, be dissolved.

John. E. Ryland, Judge. Tbe case is stated in the opinion. I. Defendant’s motion to dismiss should have been sustained, because the complaint did not show or charge that the person arrested (and whom defendant is. charged with assisting to escape) was charged with any offence whatever, or was guilty of any. The offence of resisting an officer or rescuing a prisoner may be either a felony or a misdemeanor.

Chas. H. S. Goodman, Judge. Statement of case by the court. This is an action to recover damages for the failure of defendant, a railroad corporation, to maintain and keep in repair a certain ditch for the purpose of draining the lands of plaintiff.

Andrew Ellison,' Judge. Statement of case by the court. This was an action, begun before a justice of the peace, for the recovery of sixty dollars, the balance alleged to be due on a contract made by the defendant with the plaintiff employing him as a teacher for the period of four months. The plaintiff had judgment before the justice. The defendant appealed to the circuit court.

.Tames W. Dunlap, Special Judge. The case is stated in the opinion. I. The contention by the state is that the collection of illegal taxes is within section 1484, Revised Statutes. By respondent the claim is that such offence is a misdemeanor, under section 1487, Revised Statutes. II. Every statute should be construed with reference to the state of the law when it came into effect. Sedgw. on Stat., 124.

John C. Howell, Judge. The case and facts are stated in the opinion of the court. I. To keep a dramshop a person must have a license as a dramshop keeper. Sect. 5456, Rev. Stat. II. The acts of 1881 (Laws of Mo. 1881, p. 130) regulate the sale in this case. This act was passed on in State -a. Roller (77 Mo. 120). See dissenting opinion of Judge Norton.

Awdrew Ellisow, Judge. Statement of case by the court. This was an action by plaintiff:, an employe of defendant, to recover damages for an injury sustained by him while engaged in the defendant ’ s service. This action grew out of the same accident, on account of which the case of Muirhead v. Raihroad (19 Mo. App. 634), was instituted. This action was begun in the Macon circuit court, while the case of Muirhead was instituted in the Livingston circuit court.

George W. Dunn, Judge. Statement of case by the court. Guthrie' & Norton entered into the following contract with the defendant: “Contract between James M. Bohart and A. T.. Guthrie, and Wm. F. Norton, in regard to transfer of Platte County Bank to Guthrie and Norton. “1. G. & N. are to pay to J. M. B. capital stock, and interest on same, $10,250. “2. J. M. B. is to obtain all the stocks in said bank and turn them over to G. & N. “3.

John P. Strother, Judge. Statement of. case by the court. This action was instituted in a justice’s court, to recover a month’s wages .alleged to be due plaintiff from the defendant, a school district, unde'r the statutes of this' state. The cause was finally tried on appeal in the' circuit court before the court sitting as a jury.

Noah M. Qtvan, Judge. Statement of case by tbe court. Tbe plaintiff, Drury Laffoon, was, on tbe eigbtb day' of May, 1878, summoned as garnishee in a case by attachment then pending in tbe circuit court of Cass county, in which tbe defendant, Fretwell, was plaintiff,' and one Ammerman and Daniel Hibler were defendants. On the nineteenth day of July, 1878, Laffoon answered, and on tbe twenty-third day of July, 1879, judgment was rendered against him upon bis answer.

T. M. Rice, Special Judge. The case is stated in the opinion. I. The court erred in rendering a personal judgment against plaintiff (who is a married woman), and her sureties jointly. The judgment is an entirety and is a nullity, and must be reversed as to all. Hoi ten ¶. Power, 81 Mo. 360; Holt Co. v. Harmon, 59 Mo. 165; Pecker v. Silver, 3 Mo. App. 586. The act of 1883 only extends her liability to costs. Laws of Mo., 1883, p. 113; Caldwell v. Stephens, 57 Mo. 589; Ins.

Andrew Ellison, Judge. The case is stated in the opinion. I. The court erred in giving the instruction in the nature of a demurrer to plaintiff’s evidence, as there was evidence tending to show negligence on the part of the defendant; and evidence tending to prove the allegations of the petition, and the damages are not too remote, Morgan v. Cox, 22 Mo. 374 ; Brown v. Railroad, 50 Mo. 461 ; Walsh r>.

George W. Dunn, Judge. The case and facts are stated in the opinion, I. There is no evidence that defendant in error is the administrator of L. A. Burrnss, or was such when suit was instituted ; and the motion in arrest should have been sustained. The affidavit to the demand is against the estate of L. A., and not that of E. S. Burruss. Sect. 195. Hev. Stat. II.

<p>Amendments — Construction oe Section 3060, Revised Statutes— Limitation upon. — The provisions of the statute, concerning amendments to statements (sect. 3060, Rev. Stat.) are not applicable to causes of action radically different in substance, and in the character of proof necessary to maintain them. They apply to instances where something is omitted from the original statement, yet leaving a cause of action; or by adding some averment with the manifest intendment of the pleader in framing the original statement, yet leaving a cause of action substantially the same as .at first. What was intended to be embraced in the original cause of action must be gathered from the face of the statement.</p>

Tujrnek. A. Gill, Judge. The case is stated in the opinion. I. The petition does not state a cause of action against defendant, and its objection to the admission of any testimony under it should have been sustained and also its motion in arrest of judgment; and its instruction in the nature of a demurrer to the evidence should have been given. See Imler v. City of Springfield, 55-Mo. 119 ; Benson v. Railroad, 78 Mo. 504; Stewart ®.

Joseph P. Grubb, Judge. Statement of case by the court. This was a suit in equity to establish and. enforce a lien npon real estate. Alexander Judy, by his last will, devised to Miner F. Judy, his son, two hundred acres of land in Clay county, Missouri.

James H. Slover, Judge. The case is stated in the opinion. I. The admission of the book of alleged original entries as substantive, distinct and original evidence, and the reading and showing of the same to the jury as-such evidence, constitute fatal error, for which the judgment of the lower court must be reversed.

Johnson Circuit Court, IIon. Noah M. G-ivan, Judge. The case and facts are stated in the opinion of the court. 1. The writ should issue because relator has no-other specific remedy. It is contended by respondents that Revised Statutes, section 7166, provides a specific remedy to relator, that of appeal to the board of regents.

<p>1. Principal and Surety — Exception to Rule. — Under an agreement by wbicb the principal is discharged from liability to the creditor, but by which the rights of the surety against the principal, and of the creditor against the surety, are reserved, the surety’s liability to the creditor is not discharged.</p> <p>2. -Negotiable Instruments — Indorser.—An indorser of negotiable paper, whose liability is fixed by the dishonor of the paper, demand, and protest, is not a surety within the meaning of sections 3896, et seq., of the Revised Statutes.</p>

<p>1. Debtor and Creditor — Preference—Fraudulent Sales. — A creditor may receive a preference by taking his debtor’s property at its fair valuation in payment of the debt, although he may know that his debtor does not intend to pay his other creditors, and although its necessary effect is to hinder other creditors in the collecr tion of their demands.</p> <p>2. Practice — Instructions.—It is not error to refuse to give correct instructions covering propositions fully covered by instructions already given.</p> <p>8. Evidence — Intent.—The intent with which an act was done being material, a party to the transaction may testify to the intent With which he did the act.</p>

<p>1. Vendor and Vendee — Executory Contracts — Burden of Proof. In actions by the vendor against the vendee of real estate, for damages caused by the vendee’s refusal to accept the deed and pay the money, the burden of proof is on the vendor, whether the action be legal or equitable.</p> <p>2. --Pleading and Proof. — In such an action the plaintiff must allege and prove that he was prepared to convey a good title, unless the contract stipulates to the contrary.</p> <p>3. -In an action at law to recover damages for the breach of a contract of sale which provides “title perfect or no sale,” a petition which fails to aver that the deeds tendered conveyed a perfect title, is fatally defective.</p>

Louis Circuit Court, George W. Lubke, Judge. A servant or agent can not pay Ms debt with his master’s or principal’s property. BertJiolf n. Quinlan, 68 111. 297; Story on Agency, sects. 413, 429, 430; Buck-waiter v. Craig, 55 Mo. 71; Greenwood n. Burns, 50 Mo. 52; Wharton on Agents, 210; Flannigan v. Alexander, 50, 51; Wheeler & Wilson n. Giran, 65 Mo. 89. A corporation can not reduce its stock by exchanging for it its property.

<p>1. Sheriff— Diligence in Executing Writs. — A sheriff in serving a summons is required to use only ordinary diligence, regard being had to his duties to all parties having process in his hands ; and what is proper diligence will depend upon the facts in each case.</p> <p>2. -False Return — Damages — Bags Taxes. — A sheriff who makes.a return of “not found” upon a summons in a back tax suit against one who is a resident of the bailiwick, and who could have been found by the exercise of reasonable diligence, is responsible on his official bond for all damages resulting from a judicial sale of the property upon constructive service.</p> <p>3. —;— Evidence —Practice. — In such an action it is not error to admit evidence, upon the question of the sheriff’s diligence, that the residence of the defendant owner was set opposite the tax entry on the public tax records, which were easily accessible to the sheriff.</p> <p>4. Practice — Attorney’s Misconduct. — Unwarranted remarks, made by an attorney in argument to the jury, will not necessarily warrant a reversal of the judgment, if the attorney be promptly rebuked by the trial court.</p> <p>5. --Res Judicata. — The payment of nominal damages under an execution, issued by the clerk of the trial court of his own motion, pending an appeal, is without avail as a defence on a second trial of the cause after a reversal of the judgment by the appellate court.</p>

<p>1. Trespass —De Bonis Asportatis — Quare Clausum Fregit. — In trespass quare clausum fregit, or de bonis asportatis, where the act complained of was done in the exercise of a supposed legal right, and without violence or oppression, the damages are compensatory merely.</p> <p>3.--^Damages, in such an action, are matters of direct proof, and' not of conjecture; and the plaintiff, failing- to show substantial damages, can recover nominal damages only.</p>

<p>Appeal from the St. Louis Circuit Court, Amos M. Thayee, Judge.</p>

Louis Circuit Court, W. H. Horner, Judge'. Full exemptions can not be claimed under each of several levies of an execution. Thompson on H. & E., sect. 856; Yoelsong v. Beltzhover, 59 Pa. St. 57. It was the duty of the defendant, Carroll, to set apart to Yandaveer the property described in the petition herein, under his exemption claim. Kulage v. Bchueller, 7 Mo. App. 252.

<p>Appeal from the St. Louis Circuit Court, Shepard Barclay, Judge.</p> <p>It being shown and so decided by the court that Hickey was insane, the testimony of McCormick was clearly incompetent. This is certainly true as to his explanation of the receipt. Angelí v. Hester, 64 Mo. 142; Ring v. Jamison, 66 'Mo. 424.' The only possible way •for the defendant to be held on the draft is by ratification, and the acceptance on a separate paper ; in which event the plaintiff must prove that he bought the draft in the faith of such acceptance, and that this suit was commenced within five years from the date of the acceptance. Rev. Stat., sect. 534; Menefee v. Arnold, 51 Mo. 536; Carr v. Thompson, 67 Mo. 472.</p> <p>When an agent draws a bill upon his principal, by his authority, and for money or property obtained and used in his business, the drawer and drawee may be treated as in fact the same party, and held without demand or notice. Daniel on Negotiable Instruments, sects. 128, 129, 482 and cases cited; 1 Parsons on Notes and Bills, 63, 288 ; Story on Bills of Exchange, sect. 35 ; Story on Promissory Notes, p. 19, sect. 16; Banlc v. Evans, 36 Texas, 592; Raymond v. Mann, 45 Texas, 301. The plaintiff was a competent witness. He was not one of the “original-parties to the contract.” Bev. Stat., sect. 4010, and. cases cited; Meier v. Thiemann, 15 Mo. App. 310.</p>

<p>1. Evidence — Memorandum to Refresh Memory. — A witness who has an independent recollection of the facts may. to refresh his memory, use a. memorandum made by another, but not so where he has no independent knowledge of the facts.</p> <p>2. -Instructions — Not Founded on Evidence. — An instruction to “find for the prices of the articles, either as agreed upon, or for their reasonable value,’" is erroneous where there is no evidence as to their value, or that they were sold at an agreed price.</p> <p>-3. Practice — Tender.—The amount tendered being the only evidence of the amount due, the court should render judgment for the -amount tendered.</p>

<p>1. Practice — Weight of Evidence. — The finding of a jury, under correct instructions, that a contracting defendant’ was sane when he executed the contract, will not be disturbed, on appeal, on the sole ground that it is against the weight of evidence.</p> <p>2. -Misconduct of Attorney. — The conduct of au attorney in making, in his argument, remarks designed to prejudice the jury and which are unwarranted by the evidence, is ground for reversing a finding which appears to be against the weight of the evidence.</p>

Louis Circuit Court, Amos M. Thayer, Judge. “Where a subscription, on its face, is made conditional on the doing of a certain act by the corporation, unless the condition is performed there is no… Held: “that the liability of the stockholders to the creditor upon their unpaid subscriptions, is that of debtors to the bank,” citing Ogelvie v. Ins. Co., 2£ How. 380. Also, see DoneTLy case, 13 Mo. App. 15. In M’f g Co. v. Bank (6 Rich.

<p>1. Liens — Inn-keepers.—Tlie lien of an inn-keeper, under the statute, is confined to the “ baggage and other valuables of the guest,” and will not cover goods of third persons taken to the inn by the guest.</p> <p>2. -Warehousemen.— Inn-keepers may acquire a warehouseman’s lien on the goods of a third person lawfully in the guest’s possession, and stored at his request.</p>

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

Louis Circuit Court, Amos M. Thayer, Judge. The referee, illegally and improperly admitted the books of the deceased in evidence. Ilissrick a McPherson, 20 Mo. 310 ; Anderson a Volmer, 83 Mo.' 403 ; Ives v. Waters, 30 Hun, 297; Rhoads v. Gaul, 4 Rawle, 404. The grounds of •exceptions to the rulings must be stated, and the grounds stated alone will be considered by the appellate courts. Fox v. Young', 22 Mo.

<p>1. Pleading — Sufficiency of Petition. — A petition is fatally defective where all the facts therein stated will not, if true, warrant a recovery.</p> <p>A -Exemptions — Executions — Officer’s Liability. — In an action on a constable’s bond for failing to advise an execution defendant of his exemption rights, the allegation that the plaintiff was the head of a family, and, as such, entitled to claim as exempt the property levied on, is essential.</p> <p>S. -Measure of Damages — Illegal Levy. — The measure of damages for an illegal levy is, in the absence of aggravating circumstances, the value of the property taken, with interest from the date of the taking to the date of the trial.</p>

<p>.Appeal from the Douglas County Circuit Court, J. R. Woodside, Judge.</p>

<p>Appeal from the Laclede County Circuit Court, W. J. Wallace, Judge.</p>

<p>1/ Criminal Law — Indictment.—An indictment which follows the language of the statute is sufficient.</p> <p>2. - Carrying Concealed Weapons. — Each subdivision of the statute against carrying concealed weapons creates a separate of-fence.</p>

' Louis Circuit Court, Shepard Barclay, Judge. The jurisdictional facts must be alleged in the petition or complaint, and be proved on the trial, hence the appellant’s instructions, in the nature of demurrers to the evidence, should have been given. Backenstoe v. Railroad, 88 Mo. 492; Roberts v. Railroad, 19 Mo. App. 649 ; Haggard v. Railroad, 63 Mo. 302; Creason v. Railroad, 17 Mo. App. Ill; BelieTl v. Leland, 45 Mo. 289.

Louis Circuit Court, Amos M. Thayer, Judge. The court, in its instructions and facts found, gave judgment against the defendant upon the sole ground that the defendant knew at the time the renewal note was given that it was to be used for the purpose of extending the note sued upon, and there is no evidence to sustain that finding. Schulte O. Railroad, 5 Mo. App. 578; Welch O. McAllister, 13 Mo. App. 89 ; Robert v. Stirling, 4 Mo. App. 593; Schenk ».

<p>1. Vendor and Vendee — Executory Contract op Sale. — The vendee in an executory contract of sale may rightfully refuse to consummate the contract where the property tendered is materially different from the property sold.</p> <p>2. - Breach op Contract — Measure op Damages. — The measure of damages for a breach, by the vendee, of a contract of sale is the difference between the contract price and the market value of the property.</p> <p>3. -A judgment, in such an action, for the contract price, is erroneous, as a matter of law, where the property remains in the vendor’s possession.</p>

<p>1. Pleading — Aider by Verdict. — The omission of essential averments is fatal to a petition, but their inartificial or insufficient statement may be aided by verdict.</p> <p>2. Instructions — Erroneous.—An instruction which makes the defendant’s liability depend on certain facts which, if found, would not render him liable, is erroneous.</p> <p>3. Damages — Personal Injuries. — In order to render the defendant liable, in an action for damages for personal injuries, direct, connection between the act and the injury must be established.</p>

<p>Appeal from ■ the Cape Girardeau County Circuit Court, J, D. Foster, Judge. .,</p>

Louis Circuit Court, Daniel Dillon, Judge. To constitute a right to such drain, it must be absolutely necessary, and not merely the most convenient or reasonable way; it must be the only way to drain the vault. Laumier ®. Francis, 23 Mo. 184; Cooper v. Maupin, 6 Mo. 624. The sewer passed with the grant.

Louis Circuit Court, Shepard Barclay, Judge. The verdict is unsupported by the evidence, and should not be allowed to stand. The State v. Musióle, 71 Mo. 401; The State v. Zorn, 71 Mo. 415; Stumpf v. Mueller, 17 Mo. App. 283. The verdict is the result of passion or prejudice, or the instructions given by the court were wholly disregarded. Price v. Evans, 49 Mo. 396 ; Lionberger v. Pohlman, 16 Mo. App. 393, 398 ; Borgraefe v. Supreme Lodge, 22 Mo. App. 127.

<p>Jurisdiction, Appellate — Appeals.—An appeal by a defendant from ' . a judgment in a counter-claim, involving more than twenty-ñve hundred dollars should be taken to the supreme court.</p>

Joseph P. Grubb, Judge. Statement of case by the court. This action arose on a proceeding in the probate •court of Buchanan county, on an allowance of a claim ■against the estate of Madison S. Farris, deceased. Said decedent in his lifetime was a partner with one Michael S. Farris, under the firm name of “M. S. Farris & Co.” The firm owed the claimant a debt. The partnership was dissolved by the death of said Madison Farris.

Clair Circuit Court, Hon. Charles Gr. Burton, Judge. Statement of case by the court. On March 26, 1886, the defendant was indicted for •selling intoxicating liquor as a druggist without a li-cense or other lawful authority therefor. The evidence showed two sales of whiskey by the defendant as a druggist to one Bd. Hall on March 4, 1886.

Charles ■GK Burton, Judge. Statement of case by tbe court. The defendants were jointly indicted for a violation of that part of section 1541, Revised Statutes, wliieli provides, “ every man and woman, one or both, of whom are married, and not to each other, who shall lewdly and lasciviously abide and cohabit with each other,” on conviction, shall be adjudged guilty of a misdemeanor. The defendants were jointly tried, there having been no severance.

James H. Sloyer, Judge. Statement of case by the court. This suit was instituted before a justice of the peace. The plaintiff obtained judgment in the justice’s court on July 29, 1885. The defendant appealed from said judgment to the circuit court on August 4, 1885. The October term of the circuit court was the return term of the appeal. On the first day of said term the plaintiff and the appellee in the appeal from the justice’s judgment entered his appearance.

Elijah Robinson, Judge. Statement of case by the court. Held: “It is no defence to an action on notes for purchase price of lands sold at administrator’s sale, that the purchase was procured by false representations of administrator. He is liable individually only.” II. This action could not be maintained against defendants as administrators for money had and received.

F. M. Black, Judge. The case is stated in the opinion of the court. I. It appears that when defendant took possession of the premises in question, that he did so peaceably and under the bona fide belief that he was the owner of and not intruding upon the possession or rights of another; he found the house open, the fences down, and nobody upon the premises.

James-H. Slover, Judge. Statement of casé by the court. This was an action instituted by the plaintiffs against the defendants as partners for the purchase price of certain barrels alleged to have been sold by the former to the latter.

Elijah Robinson, Judge. Statement of case by the court. This is a suit to have the circuit court construe the will of C. W. Allison, deceased, and direct the administrator as to the disbursement of a certain fund held by him. The petition is as follows, omitting the caption : “Plaintiff states that C. W. Allison departed this life on or about January 18, 1883.

James H. Slover, Judge. Statement of case by the court. This was an action, on account, for a balance of three hundred and ninety-three and thirty-seven one hundredths dollars. The plaintiff, under a verbal contract with the defendant, as a traveling salesman, traveled for the defend¡ant in Texas for the months of January, February, March, April, May, June, July, and August, 1885.

Charles Gf. Burton, Judge. The case is stated in the opinion. I. Defendants, by their own testimony, show that their intention was to defeat all foreign creditors, and would fraudulently commit some of the acts specified in the attachment law, authorizing an attachment, in order to enable certain creditors to defeat others, even to the changing of their books of account. IT.

Andrew Ellison, Judge. The case is stated in the opinion. I. Said alleged evidence should be stricken from the transcript. (1) Because the reference thereto and call for it in the bill of exceeptions is too loose and indefinite and does not identify it with sufficient certainty. Morrison v. LeJiew, 17 Mo.

Noah M. Gtvan, Judge. Statement of case by the court. This action was for the recovery of damages on account of the negligent killing by defendant of the plaintiff’s horse.

jnoab M. (xivan, Judge. The case is stated in the opinion. I. The court erred in overruling appellant’s motion to dismiss respondent’s appeal. There was no final judgment by the justice of the peace, which is essential to the right of appeal in every case, in whatever court.

A. J. Seat, Judge. The respondent, by Ms consent to the filing of the affidavit and bond in vacation, under order of court, isestopped to question its efficiency now. ■ This case is not properly here and must be stricken from the docket. The precedent steps for a valid appeal were not taken by the defendants.

Elijah Bobinsoh, Judge. Statement of case by the court. This case has been twice before the Supreme Court. 66 Mo. Ill; 74 Mo. 139.

S. P. Hustoe, Special Judge. Statement of case by the court. The appellant filed, in this court, an abstract of' the record containing the pleadings, the evidence, and the instructions, and a brief in connection therewith, setting up the action of the trial court during the trial, in various respects, as made to appear by said abstract of the record, as error.

G. D. Burgess, Judge. The case is stated in the opinion. I. The court erred in sustaining demurrer to plaintiffs’ petition. It alleges that she was doing business with her own separate money and personal effects, which is equivalent to saying that the means nsed in the business was “ her separate property.” Rev. Stat., sect. 3296; Laws of Mo., 1883, p. 113.

Noah M. Gtyan, Judge. Statement of case by the court. On the twenty-sixth day of January, 1885, Martin Hailey began a suit by attachment, in the Cass circuit court, against E. H. Yarnell, to recover the amount which he had paid to Aultman & Company, as surety for Yarnell on a note given by the latter to Aultman & Company for the purchase price of a certain machine, called a separator, mentioned hereinafter.

Noah M. Gtvan, Judge. The case and facts are stated in the opinion. I. The defendant relied upon the plea of non est factum. Therefore, the only issue properly triable was whether the defendant’s intestate executed the note sued on. Bliss on Code Pleading, sects. 330 and 331; Sheppard v. Starr ett, 35 Mo. 367; Smith Co. v. Rembaugh, 21 Mo. App. 393; Dunning v. Rembaugh, 36 la. 566 ; State to the use, etc., v. Ferguson, 9 Mo. .288; Stapleton v. Benson, 8 Mo. 13. * II.

John P. Tstrotiier, Judge. The case is stated in the opinion. Respondent insists that there is no bill of exceptions filed in this case except as to such orders and entries as . were made at the October term, 1885, of the Saline county circuit court, and the only entry made at that time was an order overruling the motion in arrest of judgment. The case was tried at the June term, 1885, and a motion for a new trial was filed and overruled at that term.

A. C. Eubanks, Special Judge. Statement of case by the court. In February, 1888, the plaintiff rented to defendant,, Ross, her farm for the period of two years, beginning on the first day of March, 1883, and ending on the first day of March, 1885, at an annual rental of three thousand dollars, payable in advance. By the terms of the contract, the plaintiff was to furnish for the use of the lessee, on the farm, fifteen head of cows, to be kept by the lessee.

Appeal irom Jackson Circuit Court, Hon. James H. Sloveb, Judge. The case is stated in the opinion. I. If the special tax bills in question are void in fact, but yet on their face valid, they are such a cloud upon the title of real estate, as that a court of equity will cancel and remove, as prayed for in plaintiffs’ petition.

John P. Strother, Judge. Statement of case by the court.. This was an action for money had and i’eceived.

A. J. Seay^ Judge. Statement of case by the court. This is an action upon a promissory note, given in-1863, by one S. H Hawkins and the defendant, for the sum of $1,047.50, payable on or before December 9, 1869, to Lazarus Holman, the plaintiff’s testator. A credit of five hundred dollars is endorsed on the-note as of March 1, 1870. Lazarus Holman died in December, 1871. Hawkins died in January or February, 1872.

John P. Strother, Judge. Statement of case by the court. This was an action instituted by the plaintiffs in a justice’s court, on account for twenty dollars and interest for “ repairs and materials on warehouse.” The defendant appealed to the circuit court from a judgment rendered against him in the justice’s court. The plaintiffs had judgment in the circuit court and the defendant has appealed to this court.

James H. Slover, Judge. Statement of case by the court. The plaintiff sued defendant to recover the sum of one hundred and twenty-five dollars, for money had and received. The answer, after tendering the general issue, pleaded that the plaintiff had made a contract with defendant in March, 1884, by which he had engaged the professional services of defendant to assist plaintiff in and about an eye and ear infirmary in Kansas City.

F. M. Black, Judge. The case is stated in tlie opinion, I. Tire court erred in admitting tkat portion of tke deposition of S. Hofkeimer objected to at tke trial. Wketker plaintiff intended by kis agreement witk Scknarr, tke acceptor, to release defendant was a legal conclusion. II. Tke court erred in rejecting tke transcript of tke record and deposition of Wm. Lockwood.

C. Hammond, Special Judge. Statement of case by the court. This is an action to recover damages for injuries inflicted on plaintiff’s race horse, “Jim Keyte,” by a race horse, “ Mollie Hubbard,” the property of defendant, on the race track at the fair ground at Keytesville. The petition was in two counts.

J. Seay, Judge. A plea to the merits is a waiver of the plea in abatement. Cannon v. McManus, 17 Mo. 345 ; Haley v. Shuman, 13 Mo. 547; «iOreen r. Craig, 47 Mo. 90; Fordyce n. Hath'om, 57 Mo. 120. The plea filed was an answer, and a plea to the merits. In this state, even before a general denial was authorized by the code, and a special denial, if any, required, it was held that to an allegation of indebtedness-■a simple denial was an answer. Westlake■ t>.

<p>1. Practice — Record Must Show Action of Trial Court. — A record which shows an objection to the introduction of testimony, but which fails to show how the court ruled thereon, brings up nothing for an appellate court to review.</p> <p>3. ' Trover— Adverse Possession — Conversion.—In an action of trover, evidence showing that the defendant claimed a part of the property, but which fails to show any adverse possession, -or any acts indicating a conversion „of the property, will not support a judgment for the plaintiff for the value of the property.</p>

<p>Practice, Appellate — Filing Briefs — Stipulation—A stipulation signed by both parties and filed in the cause, that the cause may be taken as submitted on the record, does not dispense with the necessity of the appellant filing a statement and brief under the rule of court.</p>

<p>Appeal from the Stoddard County Circuit Court, John G. Wear, Judge.</p>

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

<p>Error to the New Madrid County Circuit Court, J. D. Poster, Judge.</p>

<p>1. Justices — Statement.— A statement of a cause of action filed before a justice of tlie x>eace is sufficient if it advises the adverse party of the nature of the demand and is sufficiently explicit to bar another action.</p> <p>2. Appearance — General Issue.— The defendant’s appearance in an action before a justice is equivalent to a plea of the general issue, and he may make any defence without formal plea.</p> <p>3. Attorney and Client — Compromise. —An attorney can not compromise his client's demand against another without the client’s consent.</p>