Volume 247 — Missouri Reports

— Hon. Hugh Dabbs, Judge. (1) Inasmuch, as plaintiff’s by-laws provide that the board of directors shall have management and control of the business of the corporation, and shall meet on the second Tuesday of each month and at such other times -as the board may, by resolution, direct, and as said by-laws provide that no officer. or employee of the company shall have power to bind the company by contract without the express authority of the board of directors, and as the…

— Hon. W. 0. Thomas, Judge. (1) No motion for a new trial is preserved in the bill of exceptions, nor is there a call for one; therefore, there is nothing but the record proper before the court.

— Hon. John P. Butter, Judge. (1) The decree is not founded upon the,issues tendered by the petition and embraced within the pleadings. The suit is predicated upon the charge that the various conveyances by which Walter E. Hyde acquired the legal title were made to’ carry out a conspiracy to hinder, delay and defraud the creditors of his brother and co-defendant, Lucius D. Hyde, and that the land was to be fraudulently held in secret trust for said Lucius E>.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) The conveyance from Henrietta Gottlieb and her husband to Ida Gottlieb was voluntary as to the grantor’s creditors. Johnson v. Burks, 103 Mo. App. 221.

— Ron. James D. Barnett, Judge. (1) Appellant paid the purchase money for the land, and thereby a resulting trust arose in his favor. The presumption in favor of an advancement where the land is paid for by the husband and conveyance is made to the wife, is a presumption of fact and not of law, and may therefore be rebutted by evidence showing that at the time of the conveyance it was the intention of the husband that the wife should not take a beneficial interest.

— Eon. J. G. Park? J ndge. (1) Tlie court committed error in overruling the demurrer -to the evidence interposed at the .close of plaintiff’s case. (2) The conrt committed error in refusing to give to the jury the peremptory instruction at the close of the entire case, (a) There was no evidence of negligence on the part of the Richmond Safety G-ate Company. Conrter v. Mercantile Co., 136 Mo.

— Hon. W. H. Martin, Judge. Under the Homestead Law of 1875, Sec. 5439, R. S. 1889, the homestead of deceased could be sold to pay the debts of deceased, subject to the homestead rights of his widow and minor children. Keene v. Wyatt, 160 Mo. 1; Robbins v. Boulware, 190 Mo. 33. The construction of the Homestead Law of 1875 was as much a part of the contract of indebtedness — the Taylor note in this case — as any other part of it.

— Hon. A. D. . Burnes, Judge. (1) The debtor acquired the homestead on the 11th of February, 1904, that being the day on which the deed to the same was filed for record in the office of the recorder of deeds for DeKalb county. E. S. 1899, Sec. 3622; Shindler v. Givens, 63 Mo. 396; Bant v. Gale, 42 Yt. 27; Lamb v. Mason, 45 Yt. 500; Finnegan v. Prindeville, 83 Mo. 517; O’Shea v. Payne, 81 Mo. 519; Payne v. Fraley, 165 Mo. 196.

— Hon. J. H. Slover, Judge. (1) It is tbe duty of tire master to maintain tire place where employees may properly resort in connection with their employment, in a reasonably safe condition. This is a positive duty of the master which cannot be delegated so as to relieve the master. Other servants performing this duty are not fellow-servants. Railroad v. Wise, 106 111. App. 174, 206 Ill. 453; 26 Oye. 1087; King v. Railroad, 143 Mo. App. 289; Bailey v. Dry Goods Co., 149 Mo.

— Eon. N. D. Thurmond, Judge. (1)The evidence was wholly insufficient to establish and contract whatever on the part of deceased to give or devise land to the plaintiff. Forrester v. Sullivan, 231 Mo. 345; Collins v. Harrell, 219 Mo. 279; Wales v. Holden, 209 Mo. 552; Rosenwald v. Middle-brook, 188 Mo. 58; Kinney v. Murray, 170 Mo. 700. (2) The proof fails to establish any definite contract or understanding, to say nothing of the one pleaded.

<p>NEGLIGENCE: Pleading: Evidence: Order by Foreman, The plaintiff, employed under defendant’s foreman in reconstructing a building, was working from a scaffold below the second floor, one end of which was supported by a rope which ran up through a girder above and was then wrapped around a wooden floorbeam and tied to a wire cable which held the wooden beam in place. Two other, workmen raised a column from the first to the second floor and put it in place with the aid of blocks and tackles' and hand lines. When they had finished, and stood, with the foreman, upon the second floor, the foreman ordered them to “bring down all the rigging there is up here.” In about ten minutes the rope dropped which held the end of plaintiff’s scaffold, and he was injured. Plaintiff’s petition alleges that he was injured as a result of the negligence of the foreman in making said order. Held, that the evidence does not support such allegation, the foreman’s order not including the untying of the rope which held plaintiff’s scaffold.</p>

<p>•1. SUPPLEMENTAL CONTRACTS: Construction. A note, contract, supplemental contract, assignment and deed of trust, made upon the same day and concerning the same subject-matter, must he read and construed together as parts of the same transaction where by their express terms they constitute one single agreement.</p> <p>2. CONTRACTS: Construction." Freight Rates. Certain freight rates were guaranteed to defendant’s assignor by the plaintiff railroads, with the provision that his assignee should have the right to ship under those rates its own freight and that of any manufacturing firm or corporation in «which it might own stock. The assignor bound himself and his assigns, -to furnish freight worth $5000 a year in earnings for five years, and by a supplemental agreement the assignee bound itself, as far as practicable, to give the plaintiff railroads the preference on all shipments of freight made by it from or to a certain point. Held, that the assignee is not liable in damages for failing to procure for the railroad the preference in freight beyond $5000 a year from a corporation in which the assignee was interested.</p> <p>3. -: -:-: Subsequent Reference. By part “a” of section 5 of an agreement settling freight rates between plaintiff railroads and defendant’s assignor certain specified rates were guaranteed to the assignor on freight from point A to points B, C and D, and part “d” of the same section read, “rates on the same basis to and from other points on said railroad.” Held, that a subsequent reference in the agreement to “rates as aforesaid” includes the provisions of part “d” as. well as of part “a.”</p> <p>4.. -: -: -: Lowering Contract Rate. An agreement fixing freight rates and regulating the hauling of freight required the application of the proceeds of certain freight charges to the payment of a debt, and a provision of the agreement says specifically that lower than contract rates, if given, shall not affect any part of the agreement. Held, that a reduction of the rate on one kind of freight covered by the agreement does not avoid the necessity of applying the proceeds from hauling that freight to the payment of the debt.</p> <p>5. -: -:-: Time of Payment of Debt. Defendants’ assignor lent the plaintiffs, owners of railroad lines, money to build an extension line. The contract entered into when the money was lent provided that the party furnishing the money, or his assigns, was to ship, for five years from the date of a note mentioned (which the parties knew was made and dated that same day), sufficient freight to produce earnings amounting to $5000 each year, half of which sum was to-be applied each year to the payment of the said note evidencing the debt. Held, that the five-year period began to run at the date of the note, and not at the time of the completion of the extension line.</p> <p>6. EVIDENCE: Judicial Notice: Constructing Railroad. The Supreme Court cannot take judicial notice of the time reasonably necessary for the construction of a railroad.</p> <p>7. CONTRACTS: Construction: Payment: Sum Certain Each Year. An agreement to furnish freight to plaintiff railroad companies in such quantities that one-half the total earnings thereon should “amount to not less than $2500 each and every year for five years,” which sum was to he applied upon a note executed by the railroads to the shipper, meant-that $5000 in freight earnings must be furnished each year, and the excess in two of the five years cannot be credited on deficiencies in previous years.</p> <p>8. -: -:-: -: Note: Credit. Defendants’ assignor lent money to the plaintiff railroad companies and agreed to furnish them freight in such quantities .that one-half the total earnings thereon should amount to not less than $2500 each and every year' for five years, which sum was to be applied upon the note evidencing the debt, the note providing that it was to be paid as in said contract specified and not otherwise. Held, that a deficiency resulting from a failure in a certain year to furnish the requisite amount of freight must be credited on the note up to the amount of $2500.</p> <p>9. -: -: Freight Rates: Railroad’s Failure to Furnish Cars. Where shippers agreed to furnish the plaintiff railroad companies freight in such quantities that one-half the total earnings should amount to $2500 each year, which sum was to be applied upon a note executed by the companies, a deficiency resulting from a failure to furnish the requisite amount of freight in a certain year due to the failure of the railroads to furnish cars should not be credited on the note.</p> <p>10. -: -: Note: Sale of Interest in Property by Maker: Liability. Defendants’ assignor lent money to the plaintiff railroad companies and agreed to furnish them freight in such quantities that one-half the total earnings thereon should amount to not less than $2500 a year, which sum was to be applied upon the note evidencing the debt, said note providing that it was to be paid'as in said contract specified and not otherwise. Held, after elimination of plaintiff’s claim for damages for breach of contract, that the sale of their railroad by the plaintiff companies would not take away their right to a credit on the note for a deficiency in freight furnished them.</p> <p>11. APPEAL: Issues: Not Raised by Pleadings. Issues not raised by the pleadings need not be considered by the Supreme Court.</p>

— Row. G. A. Mosman, Judge. (1) Respondents cannot avail themselves of a motion to dismiss the appeal because of a defective affidavit (a), for the reason that the case has been argued and briefed and submitted upon its merits. Bridge and Const. Co. v. Railroad, 72 Mo. 664. (b) Because no complaint that the affidavit was defective was made to the trial court at the time the order granting the appeal was made.

<p>1. APPELLATE JURISDICTION: Constitutional Question. Although. plaintiffs’ reply raised the question of the constitutionality of a statute of another State which .defendant in its answer claims inhibited it from the performance of its contractual duty, yet if the statute does not directly infringe upon any right of plaintiffs, an appeal from a judgment against defendant, based on that ground alone, is not to the Supreme Court.</p> <p>2. -:-: By Whom Raised. A litigant cannot attach the constitutionality of a statute which does not directly invade his rights. Plaintiff distillers sued an express company for the alleged conversion of $1670.40 worth of intoxicating liquors delivered to it to be transported to various points in Mississippi and there delivered to consignees upon the payment of the purchase price. Defendant, for failure to perform the contract, pleaded that, after the receipt of said liquors from plaintiffs, Mississippi enacted a law requiring all express companies delivering intoxicating liquors in that State to take out a license and pay a privilege tax of $5000 for each office where such liquors are so delivered,, and that to comply with that law and to deliver the liquors according to its contract it would have to take out such license at 252 offices at a cost of $1,260,000 in taxes, and asked to return the liquors to plaintiffs and be released from its contract. For reply plaintiffs asserted said law is invalid and conflicts with the interstate commerce clause of the U. S. Constitution, and thereforetno excuse to defendant for the non-performance of its contract. The court held the law invalid and rendered judgment for plaintiff. Held, that the law levies a privilege tax only on express companies, and not upon liquor dealers, and does not directly infringe upon any right of the plaintiffs, and consequently they are not in a position to attack its constitutionality, and the Supreme Court does not have appellate jurisdiction over defendant’s appeal.</p>

<p>1. MILLER: Purchasing Grain for Future Delivery: Liability to Corporation. The mere purchase of wheat for future delivery by the miller having charge of and managing and controlling the business of a mill owned by a corporation, without any showing that losses resulted either from said purchases or from injudicious sales of grain so bought, does not render him liable to said corporation.</p> <p>2. -: -: Appeal: Omjtting Parts of Record. Where the trial court had before it accounts, statements, books and exhibits bearing on the question of defendant’s indebtedness, which are omitted from the record on plaintiff’s appeal from a judgment in favor of defendant, the appellate court will not undertake to say the evidence was sufficient to establish plaintiff’s right to recover.</p> <p>3. MISJOINDER OF CAUSES: Not Raised in Trial Court: Demurrer: Appeal. An objection that there is a misjoinder of causes of action in the petition must be raised in the trial court, and unless so raised will not be considered on appeal. A demurrer to the first count to the effect that it does not state a cause of action does not raise the point of misjoinder.</p> <p>4. PLEADING: Cheating and Defrauding Customers: Inferior Flour: Miller’s Liability to Company. A petition alleging that plaintiff corporation had established a good reputation for fair dealing and created a lucrative business in certain brands of flour, that respondent was the paid manager and president of the company, that he had charge of and conducted the business, and that’ as such manager he “wilfully, knowingly and wrongfully manufactured and without any right or authority repeatedly manufactured and sold inferior flour as and for plaintiff’s high grade flour,” thereby destroying the company’s reputation for fair dealing and the reputation of its established finer brands of flour, and impairing its business, capital stock and assets, charges bad faith and intentional deception, and, without any charge of negligence or incompetency, states a cause of action as to defendant’s wrong-doing, and of the company’s right to recover.</p> <p>5.-:-: -: -: Destruction of Good Will: Deceit: Damages. The company’s right to recover in such case is not dependent on the right of the purchasers of the inferior flour to recover for deceit, but upon the destruction by the defendant of the company’s good will by his wilful manufacture ' and sale of the inferior “as and for” the flour of the higher grade; and good will is a species of property, and for its destruction the law permits the recovery of damages. Nor does the fact that the proof is difficult justify the court in holding the petition does not state a cause of action.</p>

— Hon. Joseph j. Williams, Judge. A suit to quiet title to lands under Sec. 2535, R. S. 1909, is barred at tbe expiration of ten years from tbe date tbe cause of action accrues. R. S. 1909, sec. 1879; Haarstick v. Gabriel, 200 Mo. 237;'Summers v. Abernathy, 234 Mo. 167. That tbe plaintiff’s alleged cause of action accrued more than ten years before tbe filing of tbe petition was admitted by the pleadings, being alleged in tbe answer and not denied.

<p>1. NEGLIGENCE: Instructions: Loss of Time. Plaintiff testified that he was, when injured, president of a buggy company at a salary of $3000 a year; that, as a result of his injuriesi, he was unfit for business for a year and a half hut during that time would go to the company’s office once or twice a week and a few directors’ meetings were held at his home; that the time thus employed during the year and a half amounted to sixty days. He testified further that he received his salary for the entire time and it was charged to the salary account, hut that he rendered no services for a year and four months, a' term arrived at by deducting the sixty’ days from the period of a year and a half. It does not appear that he had any duties as president other than those he performed. Held, that there was no evidence to justify an instruction authorizing recovery for loss of time.</p> <p>2. <-: -: Contributory Cause. In an action for damages for personal injuries suffered in a collision between plaintiff’s carriage and defendant’s street car there was evidence of excessive speed, failure to sound the hell, violation of the vigilant watch ordinance and of an ordinance limiting the speed of cars. The court instructed on each of these phases of the evidence. One of these instructions concluded, in substance, with a direction that if the act or omission “directly caused . . . or was one of the contributing causes of plaintiff’s injuries . . . and plaintiff’s driver was not negligent, the verdict should he for plaintiff.” The three others were to the effect that if the act or omission predicated “was the proximate cause or one of the contributing causes,” etc., then the verdict should be for plaintiff. Held, that these instructions were erroneous, since the evidence tended to show no cause of injury save the negligence of defendant and that of the plaintiff.</p> <p>-: -: -: Obstructed View Near Accident. The fact that a building stood near the corner where a collision occurred and obstructed the view of motorman and carriage driver was but one of the circumstances to be considered in determining what was ordinary care on the part of both driver and motorman, and was not such “outside cause” as would justify the use in an instruction of the formula “contributed to cause” or the like in submitting the question of defendant’s negligence.</p> <p>-: -: -: Other Acts by Defendant. Other acts of negligence on the part.of defendant in an action for personal injuries, separately submitted as distinct and complete grounds of recovery, are not such “outside causes” as would justify fhe use in instructions of the formula “contributed to cause” or the like in submitting the question of defendant’s negligence,</p> <p>-: -: -: Contributory Negligence. In an action for personal injuries an instruction on contributory negligence will not cure the error of using the formula “contributed to cause” or the like in submitting the question of defendant’s negligence, where the evidence tended to show no cause of injury save the negligence of defendant and that of the plaintiff.</p> <p>-: -: -: Proximate Cause. In an action for personal injuries, where the evidence tended to show no cause of injury save the negligence of defendant and -that of plaintiff, instructions authorizing the jury to find for plaintiff if they found defendant’s specified act or omission “was the proximate cause or one of the contributing causes of plaintiff’s injuries” were erroneous because they seem to direct a finding against the defendant for some reason other than that his. negligence was the proximate cause of plaintiff’s injuries.</p> <p>-: -: Assuming Facts. Facts should not be assumed in instructions.</p>

<p>1. COMPULSORY REFERENCE: Review of Facts. Where under the pleadings, in a cause involving numerous items of indebtedness and counterclaim, a reference is properly compelled, the findings of facts may he reviewed on appeal.</p> <p>2. WRITTEN CONTRACT: Expanded by Oral Evidence: Loans. It is not permissible to expand a written contract by oral evidence. Where plaintiff declared on a written contract for loans to be made during the year 1891 she cannot recover on loans made after December 31, 1891 — there being no evidence, oral or written, to modify the written contract as executed. The loans made after that date constitute a mere open account.</p> <p>3. OPEN ACCOUNTS: Loans: Limitations. Whether or not open accounts of loans made were barred by the five-year Statute of Limitations or saved from the bar by certain payments, will not be decided, where ther.e is no substantial evidence that the loans were made.</p> <p>4. -: -: Book Account: Carried in Name of Another. The book of the Sonnenfeld Millinery Company, a corporation, whose certificates of stock plaintiff owned and whose manager was Adolph Rosenthal, showing loans to “Adolph Rosenthal, Special,” were not competent evidence to establish loans made by plaintiff to defendant I. B. Rosenthal.</p> <p>5. —-: -: Cash Drawer Slips: Extract Copies. Copies of slips of paper kept in the cash drawer of such corporation, purporting to show loans to said defendant, which are not .exact copies of the slips, but only extracts from such slips of items taken from the original slips, from which various items which may explain or qualify the items Copied are omitted, are not competent evidence.</p> <p>6. -: -: Evidence Not Preserved on Appeal. The burden is on the appellant0to show that the judgment of the trial court, adjudging that plaintiff has loaned him a named sum on open account, was not supported by the evidence; and where appellant has not brought up an abstract of the book account pertaining to the loans, and there is substantial oral evidence showing they were made, the appellate court cannot say the judgment in that regard is erroneous.</p> <p>7. PLEADING: Declaring on Contract: Amendment After Verdict: Departure. A petition declaring on a contract,, dated on or about February, 1892, in which defendant acknowledged him-self to be indebted to plaintiff in the sum of $16,648.86 for money borrowed, and which it is alleged is in the possession of defendant, was properly permitted to be amended after final judgment on the referee’s report, to conform to the proof, so asi to rest her cause of action upon a contract, dated January 3, 1891, and reciting an indebtedness of $11,573.24 for money borrowed and of $5426.26 to be borrowed during the year. The amendment did not substitute a different cause of action.and was not a departure, and defendant haying had the contract in his possession was not misled by the amendment.</p> <p>S. -: -: Order to Produce Contract: Denial of Existence: Deceit. "Where the petition declares on a contract and alleges it is not-attached to the petition because it is in the possession of defendant, and defendant is ordered by the court to produce the contract, an assertion, in excuse for disobedience to that order, that there is no such contract in existence, whereas the contract introduced at the hearing by defendant is substantially the contract declared on in the petition, amounts to deceit; and the intended deception will be taken into account in considering defendant’s objection to an amendment of the petition, after the contract is introduced, so as to conform to the proof.</p> <p>■9. LIMITATIONS: Indebtedness: Evidenced by Written Contract.' "Wkére'the indebtedness recited in a written contract • dated January 3, 1891, was to, become due and payable two years after date, a suit therefor was not barred by limitations if instituted at any time before January 3, 1903.</p>

Quo Warranto. (1) Eespondent’s position, that the election of his successor, Charles H. Mayer, was a nullity, is untenable. The case of State ex inf. v. Dabbs, 182 Mo. 359, is not in point here. .(2) We also understand respondent to contend that he is entitled to hold said office until the first Monday in January, 1913, by virtue of sec. 5828, E. S. 1909.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) The securities sued for belonged to plaintiffs.. Charles R. Platt appropriated them in disregard oí his trust, and without the knowledge of plaintiffs hy-potliecated them with the defendants to secure his own debt. (2) The defendants had notice and knowledge of the plaintiff’s title. The stock certificates were in the name of Mrs. Elizabeth W. Platt.

Louis City Circuit Court. — Eon. W. B. Homer, Judge. (1) • The plaintiff in this case should be denied relief because this action is tainted with champerty and maintenance, and the plaintiff has not come into-a court of equity with clean hands. Champerty and maintenance are now recognized as prevailing in this State, with the same force and vigor as in England under the common law. Breeden v. Insurance Co., 220 Mo. 327; 5 Am. & Eng. Ency.

Louis City Circuit Court. — Son. James E.. Withrow, Judge. (1) The power and authority given to the city of St. Louis under sec. 3141, R. S. 1909, for the separation of the grade crossing at Tower drove avenue; was fully executed in the action of the Board of Public Improvements in recommending the depression of Tower drove avenue, in accordance with House Bill 529.

— Son. Joseph J. Williams, Judge. (1) The fact that the orders of publication mentioned in the evidence were published in a supplement to or extra sheet of a newspaper and not on one of the two pages usually edited and published by the editor and publisher of that paper is not' material and does not render the service invalid.

<p>1. JUDGMENT: Power to Set Aside During Term: Motions After Rehearing Overruled: On Request Amici Curiae. The Supreme Court holds within its hreast all its judgments until the end of the term, and although a motion for a rehearing has been overruled, it can set aside any judgment it has rendered at any time before the term has ended, either of its own motion, or on the motion of the losing parties, or upon the suggestion of any amicus cwiae,</p> <p>2. --: -: -: More Than One Motion for Rehearing. The rule of the court against the filing of more than one motion for a rehearing was never intended to preclude the Supreme Court from exercising its inherent right to change its judgment at any time during the term, if it is of the opinion that its judgment is wrong, nor does it preclude the court from setting aside a wrong judgment upon the tona fide suggestion of an amicus curiae.</p> <p>3. EXCESSIVE VERDICT: New Trial: Reinstated by Appellate Court. Where the plaintiff obtained a verdict, and the court, upon a motion for a new trial, containing, among other grounds, a charge that the verdict was excessive, granted a new trial on the ground of supposed error in an instruction given, and, plaintiff appeals, the Supreme Court, after determining that the instruction was not error, cannot direct tlie trial court to set aside its order granting a new trial and reinstate its judgment, if tlie court are of tlie opinion that the verdict is in any wise excessive, whether slightly or grossly. And a majority of the judges who took part in the decision, having been of the opinion that the verdict was excessive, the judgment of the trial court granting a new trial should he sustained, even upon the suggestion amici curiae after motion for rehearing has been overruled.</p> <p>4. -: -: -: Point Raised by Motion for New Trial: Discretion. Nor does it matter that the trial court granted a motion for a new trial, on the ground that an instruction given was erroneous, if the motion also charged that the verdict was excessive. The Supreme Court is hound to consider the grounds assigned in the motion, whether or not they were ignored by the trial court, and if any one of them is sufficient ground for a new trial, the order allowing it should he upheld, and cannot he overridden without interfering with the discretion of the trial court. And if a majority of tlie Supreme Court are of the opinion that the verdict is excessive, and its exeessiveness was one of the grounds of the motion, it would be interfering with the trial court’s discretion to hold it erred in granting a new trial. The Supreme Court can set aside a verdict for ex-cessiveness only when its excess is such as to shock the conscience of the judges'. It cannot interfere with the discretion of the trial court in setting aside a verdict for exeessiveness, unless it is apparent that the discretion has been abused.</p> <p>5. -: -: -: Not Suggested in Brief. Where defendant filed a motion to set aside a verdict for plaintiff, charging, among other things, that the verdict is excessive, and the court sustains the motion on the ground that an instruction given was erroneous, and plaintiff appeals, and the Supreme Court holds the instruction was not erroneous, the fact that the respondent did not suggest in its brief that the verdict was excessive, does not preclude the Supreme Court from sustaining the order on that ground. The respondent has a right to stand mute. It devolves on the appellant to show that the trial court committed error in granting a new trial; not upon respondent to show its ruling was correct. Respond- ' ent can impose on the court the duty to examine all the grounds contained in the motion for a new trial.</p>

<p>1. CONSEQUENTIAL DAMAGES: Changing Grade'of Street: Ascertainment and Payment in Advance. Under the provisions of the Constitution (Sec. 21, art. 2) declaring that “private property shall not he taken or damaged for public use without just compensation . ; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested,” the consequential damages to the owner of property abutting on a street arising from a change of the grade and the elevation of the street to the new grade are not required to be ascertained and paid to such abutting owner before the work is done, if' the work is done in pursuance of valid ordinances and other legislative authority; and a contractor, who performs such work in accordance with such valid ordinances, before such consequential damages are ascertained and paid, • is not liable as a trespasser. Those words of the Constitution have no reference, so far as they relate to the payment in advance of damages, to such incidental disadvantages as may accrue to the'^ abutting lot-owner from changing the grade of an established street. The damages which they require to be paid in advance are those resulting to the property-owner when a portion of his property is actually taken for a public use, and they may be twofold in character, namely, (1) damages for the land actually taken and (2) damages that may accrue to the property not taken by reason of the taking of the part over which the highway or railroad is constructed. [Disapproving obiter dictum in Rives v. City of Columbia, 80 Mo. App. 1. c'. 176, and distinguishing Soulard v.- St. Louis, 36 Mo. 546, and Dooley v. Kansas City, 82 Mo. 444, cited in support thereof.]</p> <p>2. .-: -: After Work Done: From Contractor. The owner may recover damages to his abutting -property resulting from the raising of an established street above its natural and established grade, after the street has been raised — from the city, if the work was done pursuant to valid ordinances; and from the contractor, and not from the city, if there was no ordinance. But if the work was done by a contractor in pursuance to valid ordinances and a valid contract thereunder, the property-owner cannot recover damages from him, for then the ordinances and contract are a complete shield against the recovery of any damages from him.</p> <p>3. -: -: Ascertainment and Payment in Advaince: Statutes: Validity of Proceedings and Taxbills: Liability of Contractor. The statutes pertaining to cities of the third class (Secs. 5861-5866, R. S. 1899) required the damages resulting to abutting property from a change in the grade of an established street, to be ascertained and paid before the doing of the work, and were not invalid because they in that respect outran the Constitution, for the Legislature has power to enact valid statutes which are not inhibited by the Constitution. And those statutes meant that unless the damages were- so ascertained and paid, in the manner and at the time prescribed by them, the burden of the cost of the improvement fell on the city. But the validity of the proceeding was not affected by the fact that the damages were not ascertained and paid before the work was done, and hence a contractor who did the work in pursuance to valid ordinances and a contract, is not liable to the owner for damages resulting to abutting property from a change in the grade of the street</p>

Francois Circuit Court. — Hon. Peter H. Much, Judge. Some degree of participation by William Mitt-ner, Sr., in tbe act of William Mittner, Jr., in killing-Tabu, must be shown in order to establish criminal liability; something more than the mere presence of Mittner, Sr., even accompanied with his approval of' the act done, is necessary to make Mittner, Sr., an aider and abettor; Mittner, Sr., must have materially participated, either in the plan or its execution.

— Hon. W. N. Evans, Judge. (1) The most serious question in this case is that with reference to the sufficiency of the evidence as establishing the guilt of the defendant. At first glance the testimony would seem to be insufficient, but when it is carefully analyzed and all the essential elements of this offense considered with relation to the testimony offered, the evidence is amply sufficient to sustain the verdict of the jury.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) Instructions 1 and 2 are the often approved instructions given in siich cases as this. State v. Sprague, 149 Mo. 415. Number 3 was more favorable to the appellant than the facts would seem to warrant.

Louis Gity Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) There was an entire failure of proof to sustain the allegations of the second count. (2) The defendant having a just claim against the city of St. Louis, the fact that he enforced collection of the same by alleged false pretenses is no crime. People v. Thomas, 3 Hill, 169; Comm. v. Duffy, 126 Mass. 467; R. v. Williams, 7 Car. & P. 354; State v. Hurst, 11 W. Ya. 54; 2 Bish. Cr.

<p>Appeal from Livingston Circuit Cónrt. — Eon. Arch B. Davis, Judge.</p>

<p>Appeal from Maries Circuit Court. — Hon. William, H. Martin, Judge.</p>

<p>’ 1. ATTEMPT TO RAPE: Evidence: Appeal. In the absence of a brief for appellant, who has been found guilty of attempted rape, the Supreme Court closely scrutinizes the evidence to see that no injustice shall be done him.</p> <p>2. •-: -: Sufficiency. Evidence held, sufficient to support'. a conviction for attempted rape.</p> <p>3. INSTRUCTIONS: Defendant’s: Points Already Covered. It is not error to refuse an instruction asked by tbe defendant in a criminal case, when all the points touched by it have been covered by an instruction given by the court.</p>

— lion. Ralph 8. Latshaw, Judge. (1) The verdict of the jury was against the evidence and should be set aside. Under the evidence the verdict indicated that the jury were actuated by bias and prejudice against defendant. (2) The court erred in not sustaining defendant’s objections to the testimony of Dr. Stone, who examined the defendant and testified as to his findings. State v. Newcomb, 220 Mo. 65; Constitution, art. 2, sec. 23.

<p>1. INFORMATION: Felony: Word “Feloniously” Omitted. An information charging acts which the statute denounces a felony should charge that the acts constituting the crime intended to he charged were feloniously done, and if it fans to so charge a, conviction thereunder cannot stand.</p> <p>8. -: -: -: Bawdy House: Keeping Girl Under Eighteen. An information, attempting to charge that defendant was a keeper of a common bawdy house and permitted a certain female under eighteen years' of age to enter and remain in said bawdy house, without charging that said act was feloniously done, is bad under a statute which makes said act a felony, although the statute does not use the word “felonious” or “felo-niously.”</p>

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. The record shows no exceptions were taken to the giving of instructions. Nor does the record show that any exceptions were saved to the action of the court in overruling the motions for new trial and in arrest of judgment. In such ease there is nothing for review here except the record proper. State v. Libby, 203 Mo. 598.

— Eon. William T. Ragland, Judge. (1) The court abused the discretion the law gives it in permitting respondent to re-open the case after the demurrer bad been filed challenging the sufficiency of the evidence. (2) There is no evidence to support the verdict and the peremptory instructions asked at the close of the case in chief should have been given. The table, as shown by the testimony in the case, is not a gambling device within the meaning of Sec. 475, R. S. 1909.

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) The court erred in holding the testimony of the absent witness, given on the preliminary hearing, was inadmissible. When a witness is absent from the jurisdiction of the court the testimony of such witness given on the same issue before the court'holding the preliminary examination is admissible when offered by the defendant.

<p>.1. CONTINUANCE: Absent Witness: Diligence of Defendant: Concealed Weapons. An application for a continuance in a criminal case on account of absence of evidence, must show the facts • constituting diligence on the defendant’s part.</p> <p>2. -: Discretion of Trial Court. The question of continuance is largely within the discretion of the trial court and that court’s action will not be interfered with unless it appears that there has been an abuse of discretion.</p>

Appeal frorfi. St. Louis City Circuit Court. — Eon, George G. Eitchcocic, Judge. (1) The defendant is presumed to be innocent of the crime charged against him, and unless there was substantial evidence of his guilt the court should not have submitted the case to the jury, and the defendant’s requested instruction should have been sustained. State v. Young, 237 Mo. 176; State v. Scott,. 177 Mo. 665.

— Hon. Ralph S. Latshaw, Judge. (1) The eonrt erred in permitting the State to prove by witnesses Pnlhamns and Brown that they made repeated statements outside of court similar to the statements made in court under oath. State v-Brown, 17 Mich. 435; DeShon v. Ins. Co., Mete. 199 1 Greenleaf, Ev., sec. 469; Starkey, Ev., p. 187; Rix v. Parker, 3 Doug. 242; Berkley — Peerage case, 2 Phil. Ev.