Volume 26 — Missouri Appeal Reports

Vaughan, Judge. The statutes of limitation affect remedies, not things or rights in the a.b-•stract, and can, therefore, only run against individuals representing those things or rights as owner, bailee, trustee, etc., on account of the laches of such individuals; and inasmuch as a,n administrator, as such, is trustee of an express trust, the statute can not affect the trust fund he represents, but must operate on him, if for his laches the fund be lost or injured.

<p>Appeal from the Stoddard County Circuit Court, John G. Weab, Judge.</p> <p>Fraud is a generic term, and embraces all the multifarious means which human ingenuity can devise, and which are resorted to by one to get an advantage of another. Barr v. Baker, 9 Mo. 850 ; Brownlee v. Hewitt, 1 Mo. App. 360, 366. It is rarely, if ever, susceptible of direct proof, and slight circumstances may form the strong proof of fraud. Hopkins «.• JSievert, 58 Mo. 201; Burgert v. Bor-chert, 59 Mo. 80. The court erred in the second instruction for the defendants, to the effect that the firm and co-partnership property and effects of the defendants could not be affected by the act of one partner only, for W. C. Cole was in possession of the entire partnership property and effects at the time he attempted to hire the witness, Waller, to burn the same, and had full power, as a member of the firm, to dispose of all the said property and effects, in the same manner, and with the same power, as all the partners could do when acting together. Ashley Shaw, 82 Mo. 76, 81; Bryan *. Haw-Mns, 47 Mo. 410; Chester v. Bielcson, 13 Am. Rep. 550; Story on Partnership, sect. 108.</p>

<p>Appeal from the St. Francois County Circuit Court, James D. Fox, Judge. -</p>

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

Fox, Judge. A municipal corporation maintaining a wharf may charge and collect reasonable fees for the use thereof. Paelcet Co. v. St. Louis, 100 U. S. 423. Owners of shores of navigable rivers have power to control right of embarkation and landing, even at the terminus of a public road. Bird v. Smith, 34 Am. Dec. 483.

<p>Criminal Law — Wanton Destruction of Hed&e. — An information, charging the defendant with having wantonly cut down the hedge of another, is not sustained by'p'roof that he cut the hedge properly as an act of husbandry, believing it to be on his own land when, in fact, it was on another person’s land.</p>

<p>Appeal from- the St. Louis Circuit Court, Amos M. Thayer, Judge.</p> <p>The bur-ilen of showing want of care rests upon the plaintiff. Welch v. Oar Co., 1 Sheldon (N. Y.) 459 ; Palmeter v. Wagner Oar Co., 11 Alb. Law Jour. 149; Plum ¶. Car Co., 1 Flipp. (U. S.) 500; Car Co. v. Gardner, 16 Am. and Eng. B. B. Cases, 324; Tracy v. Car Co., 67 How. Pr. (N. -Y.) 154 ; Woodruff Car Co. v. Diehl, 84 Ind. 474; Scaling v. Car Co., 24 Mo. App. 29, and numerous other cases. Proof of .the loss alone is not sufficient to entitle the plaintiff to recover, nor does it shift the burden of proving negligence on the defendant; but the plaintiff must go further and establish the fact that the Loss was caused by the negligence of the defendant. Stearne v. Qar Co., 21 Am. and Eng. R. R. Cases, 443; Dar gen v.Car Qo., 5 Texas App; Texas Law Review, 619 ; Tracy v. Qar Qo., 67 How. Pr, 154; Scaling v. Qar Qo., 24 Mo. App. 29. The testimony of the respondent and his witness, Edwards, as to what the conductor and ’ porter said, on the morning after the alleged theft, was incompetent, and should have been excluded from the jury. These declarations were merely the recitals of past transactions. 1 Greenleaf on Evid., sect. 113; Mc-Dermott v. Railroad, 73 Mo. 516 ; Adams v. Railroad, 74Mo. 553; Albridgev. Furnace Qo., 73 Mo. 559 ; Fairley v. Hastings, 10 Vesey, Jr., 123 to 136; LangTiam Allunt, 4 Taunton, 511.</p>

James R. YaughaN, Judge. There was-evidence tending to establish the issues for the plaintiff as fully as claimed by her.. , It was, therefore, error in the court to instruct the jury to find for the plaintiff, only and just the sum admitted by the defendant to be-due. Smith v. Hutchison, 83 Mo. 683 ; (Jr oil r. Tower * 85 Mo. 251, and authorities on that page cited.

Vaughan, Judge. The facts, as set out in the record, do not constitute a case of bailment. To charge one as bailee, he must have an exclusive possession. Story on Bailments, sects. 2 and 55 ; Nesbet v. BanJc and Trust Co., 12 Fed. 886. Even if the evidence made out a case of'bailment, the plaintiff having declared for money had and received, must be held to proof of actual delivery and actual conversion. 3 Greenl. on Evid. 117, and note ; Kincheloe v. Priest, 5 West.

Vaugi-iae, Judge. The. words, “for ber own proper use and benefit,” in a deed, creates a separate estate in a femme covert.. Griffith v. Griffith, 5 B. Mon. 3; Warren v. Haley, 1 S. & M. Cb. 647. Tbe words, “for ber use,” alone, create a separate estate in a femme covert. Steel v. Steel, 1 Ired. Eq. 452; Good v. Harris, 2 Ired. Eq. 530. If the-intention to create a separate estate appears it is sufficient. Morrison v. Thistle, 67 Mo. 596; Klenlce v..

<p>1. Mechanic’s Liens — Judgment—Contractor Necessary Party. The judgment against the owner’s property, in a mechanic’s lien case, is merely incidental to a personal judgment against some one, who must either be the owner, or must stand in some contract relation with him or with some contractor under him.</p> <p>2. PRACTICE, Appellate — Objections to Evidence Must be Specific. Objections to evidence which do not specifically -state the ground of objection will not be reviewed on appeal.</p> <p>3. -Evidence. — The admission of cumulative evidence on a collateral question, even though it be erroneous, is not ground for the reversal of a judgment.</p> <p>4. Instructions — Technical Words. — The unexplained use, in an instruction, of a word having a technical legal meaning which is not essentially different from the meaning in common use, is not ground for reversing a judgment.</p> <p>S. Contracts — Ratification—Agency,—Only the acts of a person purporting to act for the personsought to be charged, can be shown to have been ratified.</p> <p>6. - Practice — Jury, Confinement of — Discretion.—The discretion of /the trial court as to the length of time it will confine a jury in deliberating upon a verdict will not be reviewed on apxieal, unless it has been manifestly abused.</p>

■Appeal from tlie St. Louis Circuit Court, George W. Lubke, Judge. “Burden of proving” is a technical phrase, and, unexplained, would mislead the jury, and they may have interpreted it as meaning that if there was any evidence for the plaintiff contra, then the defendant had not fulfilled the requirements of the law in that regard, as stated by the court. “Preponderance of evidence,” condemned. Clarice r>. Kitchen, 52 Mo. 316. 11 Prima facie,” condemned.

<p>Appellate Practice — Aeeikmance.—An appellant, in showing cause why the judgment should not be affirmed for his failure to prosecute the appeal, must show that the failure is not due to his negligence or to that of his attorney.</p>

<p>1. PARTNERSHIP, What Constitutes — Contracts.—Whether persons are liable as co-partners, does not depend upon the fact of their partnership inter se, but they may become such as to third persons upon proof that they held themselves out as partners.</p> <p>2. Payment — Evidence of. — The taking of a check or note in settlement of an account or antecedent debt is not a payment thereof, unless it is so understood or agreed at the time.</p> <p>3. Banks and Banking — Presentment of Check. — Where the drawer and the payee of a check reside at different places, and the facts tending to show diligence and negligence respectively, are conflicting, the question, as to what is a reasonable time for the presentment, may be properly submitted to the jury under appropriate instructions.</p>

<p>1. Damages — PARENT and Child — Pleadings and Proof. — In an action by a mother for damages for the loss of the services of an infant child, the plaintiff must allege and prove that, at the date of the accident, the child was in the service of the parent.</p> <p>2.-Measure of Damages. — The measure of damages of a widowed mother, for loss of her minor child’s- services, is the loss of service caused lpy the injury, less the cost of the child’s support and maintenance.</p> <p>S. Practice — Demurrer to Evidence. — A demurrer to evidence is properly overruled where the plaintiff has given substantial evidence tending- to prove the cause of action stated.</p> <p>4.-Negligence — Contributory — Affirmative Defence. Contributory negligence being a matter of affirmative defence, unless the evidence offered by the plaintiff shows such contributory negligence as prevents his recovery as a matter of law, he is entitled to go to the jury.</p> <p>5. Nuisance — Notice.—He who continues a nuisance which obstructs a public highway is responsible for injuries resulting i from such obstruction, without proof of notice to him of its existence.</p> <p>6. Instructions — ASSUMPTIONS.—An instruction which assumes the truth of a controverted, fact is erroneous.</p> <p>7. Verdict, Excessive. — A verdict so excessive as to be unsupported by the plaintiff’s evidence should be vacated as being the result of prejudice or passion.</p>

County Circuit Court, J. R. Woodslde, Judge. “ Suits against corporations sliall be commenced either in the county where the cause of action accrued, or in any county where such corporations shall have, or usually keep, an office or agent for the transaction of their usual and customary business.” Rev. Stat., sect. 750; Milcel v. Railroad, 54 Mo. 145 ; Peery ■». Harper, 42 Mo. 131.

Wear, Judge. The court is not limited to granting one new trial, “ when the jury, after being properly instructed by the court, misconceive, or entirely disregard, the instructions.” The State exrel. v. Adams, 76 Mo. 605, 609, and cases cited. The taking of a promissory noce, or check, for an account is not payment of the account, unless expressly so agreed at the time. Appleton v. Kennon, 19 Mo. 637, 640; Ashdown ¶.

Louis Circuit Court, Dawiel. DilloN, Judge. The parties-were entitled to a trial by jury. Story, Eq. Held: in Vallean v. Val-lean (6 Paige’s Cli. 207), that such a marriage as the one under discussion’is not void, but voidable, merely ; and, further, that said marriage can be declared void only on the application of one of the parties, and that it can not be declared void collaterally, after the death of either party.

Louis Circuit Court, Shepard Bakclay, Judge. As to the wife’s lands, held by her at law, her possession was the possession of her husband, and she is not a necessary party defendant, in possessory actions, to recover it. Bledsoe v. Sims, 53 Mo. 305; Wilson v. Garaghty, 70 Mo. 517; Gray «. JDryden, 79 Mo. 106. A leasehold, acquired prior to 1875, belongs to the husband absolutely, and no possession of any character whatever can be attributed to the wife.

<p>1. Pbacticb, Appellate — Points Once Decided Will Not be Re-examined. — Upon a second appeal of a cause, questions decided on the former appeal will not be re-examined.</p> <p>2. -Weight of Evidence. — A judgment will not be reversed on appeal, as being against the weight of evidence, unless the evidence will warrant the inference that the verdict was the manifest result of prejudice or mistake.</p>

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

Gteorhe W. Dunn, Judge. Statement of case by the court. The petition in this case was as follows : “Plaintiff states that defendant is a corporation organized under the laws of the state of Missouri, and is now, and was, at all times hereinafter named, engaged in business in said county as a banking institution; that, on the twentieth day of July, 1881, plaintiff drew his draft upon Yergho, Ruhling & Company, of Chicago, Illinois, payable to defendant’s order, for the sum of…

Turner A. GriLL, Judge. The case and facts are stated in the opinion of the court. I. The demurrer submitted at the close of plaintiff ’ s evidence should have been sustained by the court below. There was no evidence submitted by the plaintiff of negligence on the part of the defendant. The mere fact that an accident and injury concurred does not prove negligence. Ward v. Andrews, 3 Mo. App. 275 : Nolan v. S Incide, 3 Mo. App. 300; Harvey v. Railroad, 6 Mo. App. 585.

€f. IT. BUROK.. HARTT, Judge. The oase is suffioiently stated~ in the opinion.

Circuit Court, Hon. Elijah Hobihson, Judge. Statement of case by the court. This was an action for the recovery of damages on ■account of the breach of á verbal warranty in the sale of a jack, by the defendant, to the plaintiff. The sale was made in Audrain county, where the defendant lived and was engaged in business. The plaintiff lived in Clarke ■county, distant from Audrain county.

<p>Appeal from the Lewis County Circuit Court, Ben, E. Turner, Judge. .</p>

<p>1. Municipal Corporations — St. Louis — Control Over Steeets. The city of St. Louis may subject the surface of, and the space below, a street to all the legitimate uses of a street, regardless of whether the fee therein is in an abutting land owner.</p> <p>'2. - The piling of paving material upon the sidewalk, prior to reconstructing a street, is a use of the street by the city of which an abutting land owner can not complain. .</p> <p>:3. —r— Negligence — Case Adjudged. — Evidence that an undue proportion of paving material was thrown upon the sidewalk of an abutting property owner, in a careless and negligent manner, and that the contractors who had in charge the reconstruction of the street had reason to know that an injury would thereby be caused to the sidewalk, and could, without material inconvenience to themselves, have avoided the injury, is, substantial evidence warranting a recovery, and a verdict for the plaintiff will not be disturbed on the ground of a faijure of proof.</p>

Fox, Judge. The plaintiff made .-a case. The State to use v. Scharr, 50 Mo. 893 ; Kelly v. Gol)b, 64 Mo. 586 ; The State ex ret. v. Frazier, 89 Mo. 592. Objections made by one person can not be reviewed on the other person’s appeal. Amonettv. Montague, 63 Mo. 204. There is no final judgment until an order approving the sale made by the sheriff, and an order of distribution of the proceeds. Turpin ». Turpin, 88 Mo. 337; Murray ®.

Louis Circuit Court, G-eorge W. Ltjbke, Judge. The notes and deed of trust were void on the ground of incapacity on the part of the appellant and his wife. 2 Pomeroy’s Eq. Jur., sects. 948, 944, note 1. And on the ground of gross inadequacy of consideration alone ; also, because the respondent fraudulently represented the, deed and notes to be papers necessary to secure to the appellant a lease of the premises. Nelson •». Betts, 21 Mo. App. 220 ; Pom. Eq.

<p>1. Mechanic’s Liens — Paetnership—Death op Co-partner — Limi- - tations. — A surviving partner may, after his co-partner’s death, complete the delivery of materials for a building under a special contract of the firm to deliver the same, and the limitation on the lien claim runs from the date of the last. delivery under the contract, and not from the date of the co-partner’s death.</p> <p>3. - Lien Claim — Running Account — Mingling op Accounts. A surviving partner can not, on the firm account, continue to furnish materials on running account and take a lien for the whole, • and can not add items, thus furnished, on running account, to the items furnished on special contract, so as to save the lien.</p> <p>3. -Sub-contractor’s Notice — Evidence.—The notice by a subcontractor to the owner must be in writing, and must apprise the owner who the claimant is, but it is sufficient to show, by inferential evidence, that the owner received such notice at least ten days prior to the filing of the lien claim.</p> <p>4. -Wobd Lot Defined. — The term lot in a city means the fractional defined subdivision of a'block, and the lien claim should be made against that lot only on which the building is, although several contiguous lots, belonging to the same owner, are inclosed together.</p>

Louis Circuit Court, Dahiel Dill oft, Judge. There is no evidence that the one thousand dollars paid by Mitchell was stolen money. McDermott v. Railroad, 73 Mo. 516. If it were, its payment by Mitchell, and receipt by the plaintiff, discharged the bond pro tanto, notwithstanding the money was, .afterward, refunded to the person who claims to have been robbed of it. Miller v. Race, 1 Burr. 452 ; s. c., with, notes, 1 Smith’s Leading Cas. [5 and 8 Am.

Louis Circuit Court, Shepard» Barclay, Judge. Where the contract, as defined in the laws of the society, makes the payment 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.

<p>1. Notice, Judicial — Records of Other Causes — Evidence.—The trial court can not take judicial notice, in one cause, of the contents of the record in another cause pending before it, but such other record must be offered in evidence.</p> <p>2. Practice — Motion foe Oedee on Sheriff — Pleading.—A written motion for an order on the sheriff to pay over to the plaintiff funds in the former’s hands, is not a pleading, but is in the nature of a suggestion, to the court, and the plaintiff must prove the facts therein stated, unless their truth is expressly admitted.</p>

<p>Appeal from tbe St.- Louis Circuit Court, Bartel Dillow, Judge.</p> <p>The -account stated having been proved, the plaintiff should have recovered. Carroll v. Paul, 16 Mo. 226 ; PieJcel v. ■Chamber of Commerce, 10 Mo. App. 195; s. c., 80 Mo. 66.</p> <p>The plaintiff’s petition is framed upon the theory of its right to recover in indebitatus assiompsit, and not as upon an ¡account stated. Manion Blacksmith & Wrecking Co. v. Carreras, 19 Mo. App. 162 ; Brown v. Kimmel, 67 Mo. 432; Kent v. Highleyman, 17,Mo. App. 10 ; Railroad n. Kimmel, 58 Mo. 85. A person will not be permitted to try a case upon one theory below, and then invoke another on appeal. The appellant ''must stand or fall on the theory upon which it chose to fight below. W hetstone ,®. Shato, 70 Mo. 575; Walker v. Owens, 79 Mo. 568.</p>

<p>Arread from the St. Louis Circuit Court, Shepard Barclay, Judge.</p> <p>The contractual obligation to pay interest is regulated and limited by statute, and can not exist in law if not conformable to the statute. Compton v. Johnson, 19 Mo. App. 88. Where the statute allows interest upon a promise in writing, without the writing there can be no claim of interest. Rev. Stat., sects. 2724, 2728 ; see, also, Moore v. Bank, 22 Mo. App. 684; Sammis v. Clark, 13 Ill. 544; Hitt n. Allen, 13 Ill. 592; Myers v. Walker, 24 Ill. 133; Close v. Fields, 3 Texas, 232. The mere fact that one is. a depositary, or bailee, of money, does not, in itself, carry a liability for interest. 1 Am. Law Cases, 637. It will not be here questioned that the defendant may set up the want of lawful consideration, as a complete defence against the note, or any part of the sum therein. The paper'has never been negotiated, and the controversy is between the maker and payee. 1 Chitty’s Cont. 26; Thatcher «. Pinsmore, 5 Mass. 301. A note given without any existing (or concurrent) indebtedness, is void. Rollins v. Lashus, 74 Me. 218 ;. The State v. Illyes, 87 Ind. 405 ;- Parsons v. Pendleton, 59 Ind. 36. There was no moral obligation which would, support the promise. Podge «. Adams, 19 Pick. 429 ; Ehle ?>. Judson, 24 Wend. 97; Cook r. Bradley, 7 Conn. 57; see, also, 2 Greenl. on Evid. 126; Hawley r>. Far-rar, 1 Yt. 420 ; Turlington v. Slaughter, 54 Ala. 195 ; Updike v. Titus, 13 N. J. Eq. 151; Smith v. Ware, 13 Johns. 257. The answer distinctly alleges that there was no subsisting debt. Nervous and physical prostration made him ‘ ‘ not able to withstand the threats, intimidation, and overbearing persistency ” of the plaintiff. There was in full force, that “ undue advantage ” which Thompson, J., in Nelson v. Betts {21 Mo. App. 219), de-dares effectual to vitiate a contract so unfair and extortionate on its face. As a mere admission of liability, tbe defendant’s promise stands upon the same footing with that in Evans v. Verity (Ry. & M. 239), where' Eittledale, J., non-suited the plaintiff, saying: “The plaintiff here does not prove any consideration on which the defendant became indebted to him, but insists on his right to recover upon an admission of liability made by the defendant on a statement of account between them.” To the same effect are Johnson v. Bennett (1 Spears [S. C.] 209), and Cabot v. Haskins (3 Pick. 83). 'The fundamental rule appearing from these cases is, that no legal liability can be created by any admission of liability which does not, in fact, exist. Gunning v. Royal, .59 Miss. 45 ; Briscoe v. Kinealy, 8 Mo. App. 76. And ■an executed consideration can never support a promise, unless it is shown to have followed a precedent request from the promisor. Bulkley v. Lang don, 3 Conn. 76 ; •Carson v. Ciarle, 2 Ill. 113 ; Sowerwein v. Jones, 7 Grill. .& J. 335; Jones v. Shorter, 1 Gfa. 294; Chaffee v. Thomas, 7 Cow. 358. “To exact from the debtor interest on the previous arrears of interest, without a previous special and particular agreement for that purpose, is inadmissible. * * * The agreement on the part of the defendant to pay CQinpound interest, retrospectively, •does not alter the case, for the maxim, volenti non fit injuria, does not apply in these cases.” Van Ben-schooten v. Lawson, 6 Johns. Ch. 315. To the same •effect are: Connecticut v. Jade son, 1 Johns. Ch. 13 ; Wilcox v. Howland, 23 Pick. 167; Toll v. Miller, 11 Paige, 228 ; Eorman v. Forman, 17 How. Pr. 255 ; Ken-■non v. Bickins, Cam. & M. (N. C.) 357; Childers v. Beane, 4. Rand. 406 ; Kellogg v. Hickok, 1 Wend. 521. All these decisions denounce as void, and not enforceable by law, a promise to pay interest, retrospectively; in other words, to pay back interest, not previously .agreed upon.</p> <p>There was no duress. Nelson v. Betts, 21 Mo. App. 219; Turley v. Edwards, 18 Mo. App. 676 ; Bams v. Luster, 64 Mo. 43. Interest may be received, and recovered, without express contract. {a) Upon money advanced ior the use of another from-the date of advancement. Barrel v. Joy, 17 Mass. 226 ; 1 Brown’s Chancery Cases,. 440; Sims v. Welling, 8 Serg. & Bawl. 109 ; Dilworth n. Sinderling, 1 Binney, 495; Weelcs t>. Hasty, 13 Mass. 218; Gibbs ». Bryant, 2' Metcalf, Í75; Hastie v. DePeyster, 3 Caines; 195; Breckinridge r>. Taylor, 5 Dana, 114 ; Qoodloe v. Clay, 6 B. Monroe, 238; Leotard, v. Graves, 3 Caines, 227; Kaimes v. Smith, 12 Johns. 156; Bell«. Glass Go., 3 Com. 419. (b) On money had .and received for the use: of another. Kirkman v. Yanlies, 7 Ala. 229; Lewis v. Bradford, 8 Ala. 632; The People v.-Gasherie, 9 Johns. 71; Pease v. Barber, 3 Caines, 266; Robinson v. Bland, 2 Burr, 1077; Rapelie v. Emory, 1 Dali. Rep. 349 ; Thomas r. Weed, 14 Johns. 255; Miller «. Bank, 5 Wharton, 505 ; Wood ». Robbins, 11 Mass. 505; Sims v. Wilting, 8 Serg. & Rawl. 109; Bedell v. Janny, 4 Grilm. (9 HI.) 202; Selleek v, French, 1 Conn. 32, 35; 1 American Leading Cases [5 Ed.) 610. (c) Back interest upon interest, even, may be recovered, when there is-no express contract, prior, or subsequent, to pay it. Kennon v. Dickens, Camp. & N. (N. C.) 360; Watkin-son v. Root, 4 Ohio Rep. 373 ; Pierce v. Rowe, Adams-(1N. H.) 179 ; Wright v. Eaves, 10 Rich. Eq. (S.C.) 594; Wilcox v. Howland, 23 Pick. 168; Greenleaf ■». Kellogg, 2 Mass. 568; Stewart v. Petrie, 55 N. Y. 621. Interest upon interest may be recovered in the absence of an express contract. Such was the personal opinion of Lord Thurlow, in Waring v. Gundiff (1 Yes. Jr. 99). Wilcox v. Howland, 23 Pick. 168; Barrell v. Joy, 16 Mass. 226 ; Forman v. Forman, 17 How. Pr. 255; Stone v. Bennett, 8 Mo. 41. (d) And especially when there is an agreement to that end after the original contract. Connecticut v. Jackson, 1 John Ch. 13; Forman u. Forman, IT How. Pr. 257. (é) And it is equitable to receive it, even when the policy of the law forbids a recovery for it. Toll v. Hiller, 11 Paige, 231. (/) A case on all fours with this is decided by Chief Justice Shaw. Wilcox v. Howland, 23 Pick. 168.</p>

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

Thomas, Judge. A private nuisance may be abated, by the party injured, when it can be done without a breach of the peace. In this case the private nnisance was on the plaintiff’s own premises, and not only might have been abated by him, but it was his duty to have done so.

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

<p>Appeal from the St. Louis Circuit Court, Amos M. Thayer, Judge.</p> <p>Demurrer will not lie for the improper commingling in one count • «of matters that might be properly united in a petition by different counts, but only for the substantial error of uniting, whether in one or different, counts, matters that can not be united at all. Otis ». Bank, 35 Mo. 128; MuTholland v. Rapp, 50 Mo. 42; Bliss on Code Plead., sect. 412; Bass V; JJomstock, 38 N. Y. 21. Where a person, answerable to two jointly upon a contract, settles with one of them, .so that that one has no longer any interest in the matter in dispute, it is a severance of the cause of action, and the debtor is liable to the other in an action brought by him alone. Hawes on Parties to Actions, sect. 94, p. 270 ; Baker v. Jewell, 6 Mass. 461; Richmond v. Parker, 12 Met. 48 ; Railroad v. Railroad, 119 Mass. 498 ; McConnell v. Braynor, 63 Mo. 461; Pettingill v. Jones, 21 Mo. App. 210. Under a code like ours, which prescribes one form of action, a petition stating facts which entitle the plaintiff to any form of relief, is not demurrable, on the ground that it does not state facts sufficient to constitute a cause of action. McPherson v. Weston, 64 Cal. 275 ; Austin «. 8eligman, 18 Fed. Rep. 519; Miltenberger v. Morrison, 39 Mo. 71; Bennett n. Preston, 17 Ind. 291; Btuyoesant v. Mayor, 11 Paige, 415.</p> <p>One of two joint obligees in a joint contract can not sue upon the contract alone, nor release such obligation. Parsons on Cont. (7 Ed.) 13 j Bliss on Plead., sect. 63 ; QlarJc v. Cable, 21 Mo. 223 ; Rainey ®. Smizer, 28 Mo. 310 ; Dewey v. Casey, 60 Mo.. 224 ; Thieman v. Goodnight, 17 Mo. App. 429 ; Henry v. Mt. Pleasant Township, 70 Mo. 500. It is a ground of demurrer that several causes of action have been improperly united in the petition, whether the same be done in one or more counts. Rev. Stat., Mo. 1879, sects. 35, 15; Baker ». Raley, 18 Mo. App. 567; Bank v* Dillon, 75 Mo. 380, and cases cited</p>

Louis Circuit Court, Georue W. Lubke, Judge. No acceptance of the engine in question was necessary to vest title in the defendant, Paule & Mummert having given a written order therefor. Rev. Stat., sect. 2514; Story on Sales (4 Ed.) sects. 257, 259, and notes. The delivery of the engine to the railroad company, consigned to Paule & Mummert, was a delivery to their agent, and vested title thereto in theta.

• Appeal from the St. Louis Circuit Court, A>ros M. Thayeb,. Judge. The court erred in overruling the defendant’s motion to make the plaintiffs’ petition more definite and certain, and in subsequently overruling the defendant’s objection to the introduction of any evidence under the petition. Iselin v. Griffith, 62 Iowa, 670; Coleman' s jEke’r v. Mead, 18 Ky. 363; McGavock v.Woodlief20 Sow. 221; Kimberly v. Render son, 29 Md. 515 ; Phelan i). Gardner, 43 Cal. 311.

R. Woodside, Judge. The necessary allegation that the plaintiff was in possession of the premises was not made: Garner v. McCullough, 48 Mo. 318. It is necessary to show that the plaintiff was in possession of the premises at the time of the alleged trespass, and he having failed to prove that he was in possession, he could not recover án the action.

Charles County Circuit Court, W. W. Edwards, Judge.. The cause should have been taken away from the jury. Wright v. McCormick, 67 Mo. 428; Stewart v. Bergstrom, 79 Mo. 524. The conveyance was a legal fraud as to creditors, prior and subsequent, and the court should so declare. Such has been the universal construction of our courts of section 2496, chapter 34, page 417, of the Revised Statutes.

<p>1. Bailments — For Hire — Negligence—Burden of Proof. — A bailee is bound to use ordinary and reasonable care in keeping goods entrusted to his custody, and where they are lost while in his possession, the burden of showing that the loss was not due to his negligence is upon him, and not upon the bailor.</p> <p>2. Practice — Excessive Verdict. — A verdict supported by substantial evidence "will not be vacated on the ground that it is excessive, unless it is the manifest result of mistake or prejudice.</p> <p>3. - Specific Objections. — Objections to evidence, which are not specific, will not be reviewed on appeal.</p> <p>4. Evidence — Memorandum to Refresh Memory. — A memorandum, known by the witness to have been correct when made, may be used by him to refresh Iris memory, although made by another person.</p>

Turner A. Gill, Judge. The case is stated in the opinion. I. The petition disclosed that the action is founded in tort. The gist of it is the alleged making of false and'fraudulent representations. The representations are several in their nature and can give none other than a several action. These plaintiffs cannot sue jointly. The petition, therefore, states no cause of action. Balcer v. Jewell, § Mass. 460, 461. II.

John- P. Strother, Judge. The case is stated in the opinion. I. Defendant’s objection to the introduction of any evidence, because the petition fails to state a cause of action, and shows, upon its face, such contributory negligence as precludes a recovery, should have been sustained.

Francis M. Black, Judge. Statement of case by the court. This was an action under section 809, Revised Statutes, for the recovery of double damages, on account of the killing of a mule by defendant.

Charles G. Burton, Judge. The case is stated in the opinion. 1. There are but two points to be considered in this case. (1) Can the return of the sheriff made on the notice of appeal be impeached, as was done in the court below?

B. M. Billet, Special Judge. The case is stated iu the opinion. I. The court erred in -overruling defendant’s demurrer to the evidence. The suit is for negligence in running the train in town and switch limits, and the plaintiff, to recover, must prove actual negligence, and that the negligence proved occasioned the injury. Robertson v. Railroad, 64 Mo. 412, and cases cited ; Holman v. Railroad, 62 Mo. 562.

James H. Slover, Judge. The case and facts are stated in the opinion. I. The side track and switches constituted & part of the station groimds at Harlem. It was the only place designated and used bji the company and the public for receiving and discharging freight at that station, and, ■ owing to its communication with or accessibility of approach from the county road, the most suitable and practicable one.

Joseph P. Grubb, Judge. The case is stated in the opinion. I. The petition did not state facts sufficient to constitute a cause of action. It failed to allege any facts showing that the defendant was under any obligation to fence its track at the point mentioned.

M. Gr. McCtu'egoii, Judge. The case is stated in the opinion. I. The information in the case not being based on the knowledge of the prosecuting attorney, and not being based on a complaint setting forth the offence, verified by the oath of a person having knowledge of the commission of the offence, and filed with the justice, or deposited with the prosecuting attorney, is void, and ajjpellant’s motion to quash should have been sustained. Session Laws, 18S5, p. 145. II.

Turner A. Hill, Judge. Tlie case and facts are stated in the opinion. I. The court erred in the instruction given plaintiff, because material parts of it are not based upon any evidence; and because it is misleading. The possession taken by defendant was not unlawful, but by invitation .and request of plaintiff’s agent. Again, there was no evidence that the business was of any value.

Elijah Robinson. Judge. Statement of case by tile court. This action is based on a policy of insurance, alleged to have been issued by defendant on the nineteenth day of May, 1885, to insure plaintiffs’ stock of goods against loss by fire for the period of on,e year next thereafter. It appears, from the evidence, that Early & Booth were the local agents of the defendant company, whose principal office was at Chicago.

E. E. Kimball, Special Judge. Statement of case by the court. This action was instituted in a justice’s court, to recover the value of a horse sold by plaintiff to defendant for the sum of one hundred and fifty dollars. Plaintiff recovered judgment, and ‘defendant appealed to the circuit court. When the cause came on for trial in the circuit court, the plaintiff made to the jury an oral statement of what he expected to prove.

<p>1. Peacticb — Bill of Exceptions not Filed in Pursuance op Law. Where the errors complained of are such as can only be brought to the attention of this court by being preserved in a bill of exceptions; and the instrument purporting to be a bill of exceptions does not appear to have been died in the cause, as by law reguired, this court is precluded from considering them.</p> <p>3.-Bill of Exceptions — Requisites Concerning “Ehjngí” op, etc. — When leave is granted to file a bill of exceptions m vacation, there must be some certificate on the bill itself, signed by the clerk, indicating the fact and date of filing, or some entry made by the clerk in the records of the court, to that effect. The bill, until both signed and filed, forms no part of the record, and the +~'m “ filed,” as above employed, means the entry made by the clerk on the record, by which the fact that the bill has been alloiued is announced and appropriately ■evidenced. Neither the indorsement of the clerk on the bill of exceptions, “filed,” with day and date, nor the statement of the judge, that it is signed, sealed and made a part of the record, nor both, will suffice. There must be a ecord entry that it was filed.</p>

C. EL Mansur, Special Judge. The case is sufficiently stated in the opinion of the-court. I. The sole consideration of the sale of the goods In controversy, by Baltis Brothers to their father, was, that “he should assume and pay” certain notes of theirs,, on which the father was security. He was not, in contemplation of law, their creditor. No right of action, enures to a surety, against his principal, until the security debt is paid.

James M. Davis, Judge. Statement of case by the court. The record in this case is quite voluminous ; but the facts, essential to a proper understanding of the issues, are substantially as follows . On the third day of April, 1877, P. S. Winn and wife gave a deed of trust on a large amount of real and personal property to Solomon Wiles, as trustee, to secure certain creditors therein named.

James B. ■Cantt, Judge. The case is sufficiently stated in the opinion of the court.

James H. Slover, Judge. Statement of c'ase by tbe court. This was an action for trespass, under section 8922, Revised Statutes, against the defendant, for entering plaintiff’s premises and voluntarily throwing down plaintiff’s fences, etc. The plaintiff introduced in evidence defendant as a witness, who testified that he bought the land in controversy in September, 1885, of Phillips, and that, in October or November following, he had the fences around the land torn down and…

H. S. Kelley, Judge. I. The court erred in admitting any evidence under the petition, and in overruling the defendant’s demurrer to the evidence. The matter charged to have been published by the defendant is not libelous per se, and the case should not have been submitted to the jury. Nelson v. Musgrave, 10 Mo. 648; Babb v. Bilis, 76 Mo. 457; Price v. Whitely, 50 Mo. 439, 441; Legg v. Dun-lavey, 80 Mo. 558, 562; Price v. Sims, 2 Harr. 417; Towns.

M. Gr. McGregor, Judge. Statement of case by the court. Appellant is the administratrix of the estate of E. P. Ball, deceased. I. É. G-arner, on April 1, 1876, was the owner of lot 584 in North Carthage, and executed a deed of trust upon said lot to M. Gr.

W. J. Wallace, Judge. Statement of case by the court. This action was instituted in a justice’s cohrt. After the service of summons, and before the trial in the justice’s court, the defendant made payment to the constable, as a tender for the plaintiff, of a sum greater than the amount ultimately recovered by the plaintiff, together with the amount of costs then accrued. The ■plaintiff had judgment in the justice’s court.

Audeew Eli,isoh, Judge. The case and facts are stated in the opinion. I. The court erred in sustaining a demurrer to the evidence. “A demurrer to the evidence admits everything which the evidence conduces to prove, though but-in a slight degree.” Wilson v. Board of Education, 63 Mo. 137. And the court is required to malte every inference of fact in favor of the party offering the evidence in passing upon such demurrer. BuescMng v. Gas Light Co.. 73 Mo. 219. II.

Andrew .Elltson, Judge. The case and facts are stated in the opinion of the court. I. The court found for defendant on the ground that the note secured by the mortgage was negotiable .and entitled to days of grace, and that suit was prematurely bought. The note was not negotiable. Fitzhar-ris v. Leggett, 10 Mo. App. 527; McCoy v. Green, 83 Mo. 626; Bank v. Gay, 63 Mo. 33 ; Bamsiag v. Conley, II.

Charles Gr. BurtoN, Judge. Statement of case by tbe court. This is an action, begun by attachment, for a breach of warranty in the sale of a printing press, known as the “ Prouty Power Press,” sold by the defendants to the-plaintiff.

<p>Appeal from Johnson Circuit Court, Hon. Noah M. G-ivan, Judge.</p>

Chas. H. S. Goodman, Judge. I. By Ms conduct in disclaiming the ownership of the goods at the time of the levy, the sheriff was induced to proceed and the relator was estopped from claiming them afterwards. Garnhart v. Finney, 40 Mo. 449, 462-3, and cases cited ; Dezell v. Odell, 3 Hill (N. Y.) 215, 218, 219 ; Bigelow on Estoppel [3 -Ed.] 481, 482, and cases cited, notes., II.

<p>Proceeding- by mandamus.</p>

<p>Error to the Ralls County Circuit Court, Theo. Brace, Judge.</p> <p>The defence of the statute of limitations may be taken advantage of either by demurrer or plea. Savage v. Allen, 34 Mo. 224; Boyce v. Ohristy, 47 Mo. 70; Wynn v. Cory, 48 Mo. 346; Rogers v. Brown, 61 Mo. 187. The promise to give a credit on the note was void, not being in writing. Rev. Stat, sects. 3230,3248; Chambers n. Rubey, 47 Mo. 100. There was no accord and satisfaction. Goff •». Mulholland, 28 Mo. 397.</p> <p>A part failure of consideration is not in the nature of a counter-claim, or set-off. Carpenter ». Meyers, 32 Mo. 213 ; Voss v. McGuire, 18 Mo. App. 482. The testimony in support of the plea of part failure of consideration was properly admitted. Dennison v. Bacon, 10 Johns. 198 ; Miller v. JEiitz, 3 E. D. Smith, 253 ; Hill v. Binders, 19 Ill. 163 ; (Jolgrove n. Rockwell, 24 Conn. 584 ; Smith v. Carter, 26 Wis. 283 ; Hibbard v. Galusha, 23 Wis. 398 ; Peterson v. Johnson, 22 Wis. 21. It may be true, that “if this debt had not been paid, or settled, as claimed by the defendant, it was barred by the statute of limitations,” but to get the benefit of it, he must, when sued on it, avail himself of it, either by . a demurrer or plea. Boyce v. Christy, 47 Mo. 70 : Wynn v. Cory, 48 Mo. 346.</p>

<p>i. INSURANCE, Fire — Insurable Interest — Interest of Third Person in Contract. — The mere fact that, under the terms of a fire insurance policy, the loss is made payable to a third person, gives such person a prima facie interest in the insurance contract, although he may have no insurable interest in the property insured.</p> <p>2.-Debtor and Creditor. — Where a debtor’s interest in property is insured, the loss being- made payable to the creditor, the latter has a valid interest in the insurance contract, the debtor being a mere trustee for him.</p> <p>8.-Agency — Waiver of Condition. — Conditions in the policy, defining by whom and in what manner proofs of loss shall be made, may be waived by an agent of the insured.</p> <p>4. -Case Adjudged. — Held, that, under the peculiar circumstances of this case, the court’s instructions on the question of waiver were correct.</p> <p>5. Homestead — Vendor’s Lien — Foreign Laws. — Under the laws of another state, which exempt the homestead from the claims of creditors, and which render void an alienation thereof by the husband, without the wife’s consent, a conveyance by the husband, without the wife’s consent, in payment of a pre-existing debt, and. a re-conveyance to him, with the reservation of a vendor’s Hen, are void, and neither extinguish the debt nor give the creditor a valid vendor’s lien. °</p> <p>6. Contracts — Lex Loci. — The local laws of a state form a part of contracts entered inco in such state, which contracts are subject to provisions of such laws rendering void certain clauses, if contained in such contracts.</p>

<p>Insueance, Fire — Waiver of Condition. — The receipt, by an insurance company, of proofs of loss, regular in form, but which designate the policy by a wrong number, and its failure to respond to an inquiry as to whether such proofs are sufficient and satisfactory, is a waiver of the defect, if any.</p>

<p>1. Judgments — Interest.—Every judgment -in a civil action bears the same rate of interest which the cause of action bore, although it is not so expressed therein.</p> <p>2. -Nunc Pro Tunc Correction. — A person, in whose favor is rendered a judgment which bears a special rate of interest, is entitled to have the record corrected, so as to show the rate of interest borne by the judgment.</p> <p>3. -Distinction Between Clerical and Judicial Errors. Such an omission is a clerical error which may be corrected, nunc pro tune, at a subsequent term, but a miscalculation as to the principal of - the judgment is a judicial error which can not be corrected after the lapse of the term.</p>

<p>Appeal from the Lawrence County Circuit Court, M. G. McGregor, Judge.</p> <p>'The contract of a guarantor is his separate, independent contract; it is collateral and secondary, and not a joint •engagement with the maker. The guarantor is liable only when the debtor has proved insolvent after due diligence has been used by the creditor to obtain payment; .and due diligence is that which a vigilant creditor employs when he has no other security than the obligation •of the debtor. The exercise of this due diligence is a condition precedent to tbe right of action against the guarantor, and the guarantor is excused to the extent of the damage he has suffered by this lack of due diligence and neglect on the part of the holder of the note. Oxford Bank v. Haynes, 8 Pick. 423; Phillips v. Ast-ling, 2 Taunt. 206 ; Warrington v. Furber, 8 East, 245 ; Perry v. Barret, 18 Mo. 140 ; Central Savings Bank v. Shine, 48 Mo¡ 463 ; McNdll v. Burrow, 33 Kas. 495; Murray v. Noyes, 72 N. T. 523; McMillan v. Bank, 32 Ind. 11; Craig v. Parkis, 40 N. Y. 181; Pain v. Packard, 13 Johns. 174; Mizner v. Spier, 96 Pa. St. 533; Building Ass'n v. Lichtemoalner, 100 Pa. St. 103; Reigert v. White, 52 Pa. St. 438; Hoffman v. Bechtel, 52 Pa. St. 190; Johnson v. Chapman, 3 Pa. Rep. 18; Brown v. Brooks, 25 Pa. St. 210; Parker v. Culverts on, 1 Wall. Jr. 149, 161; Gilbert v. Henck, 30 Pa. St. 205; Parmer-lee v. Williams, 71 Mo. 410. The waiver, of demand or protest is simply a waiver of technicalities, and furnishes no excuse for the negligent acts of the plaintiff' in this case. A waiver of technicalities, is not a waiver of that due diligence which the law makes part and parcel of the contract of guaranty. Murray v. Noyes, 72 N. Y. 523Hartman v. Bank, 103 Pa. St. 582; Zahn v. Bank, 103 Pa. St. 576 ; Hoffman v. Bechtel, 52 Pa. St. 190. The contract of guaranty being a separate, independent contract, requires a consideration to support it, and where, ás in this case, there is a total failure of consideration, there can be no recovery. Between the parties the consideration may always be' inquired into. The words, “value received,” are only prima facie evidence of consideration. Aldrich v. Stockwell, 9 Allen, 45, 46 ; Parish v. Stone, 14 Pick. 198; Howard v. Jones, 13 Mo. App. 595, 596; Pfeiffer v. Kingland, 25 Mo. 66 : Cook v. F lliott, 34 Mo. 586 ; Stagg v. Linnenfelser, 59 Mo. 336,- 342, 343.</p> <p>The respondent’s evidence, viz.: the contract of agency, having shown good consideration for the guaranty, and there being no competent evidence on behalf of the appellants, tending to show want of consideration, the appellants’ first instruction was properly refused. Glenn v. Leh-nen, 54 Mo. 52, and cases cited.. The contract of guaranty expressly waives demand, and hence it was no part of the duty of the respondent to forward the note to the place of payment. The contract guarantees payment at maturity, and at any time thereafter; and hence the appellants could not require the respondent to proceed to collect, or to forward the note to them for collection, and the appellants’ second and'fourth instructions were improper. Koenig v. Bramlett, 20 Mo. App. 636; McMurray v. Koyes, 72 N. Y. 574. The answer set up that the principal was solvent at the ma- ■ turity of the note; that the plaintiff neglected to demand payment, and to forward the note, and, in the meantime, the principal became insolvent, and the evidence offered to sustain these allegations constitutes no defence. Hence, the instruction given by the court is correct, and the appellants’ third instruction was properly refused. Brown v. Curtis, 2 Comstock, 225; Herrick v. Borst, 4 Hill, 652 ; Airey v. Bear son, 37 Mo. 424; Bouton’s Acini'r v. Lacy, 17 Mo. 400; Gain v. Bates, 35 Mo. 427; Freligh v. Ames, 31 Mo. 254; Sappington v. Jeffries, 15 Mo. 628; Langdon v. Maride, 48 Mo. 360; Koenig v. Bramlett, 20 Mo. App. 636 ; Wright v. Dyer, 48 Mo. 526 ; Deters v. Linenschmidt, 58 Mo. 466 ; Miller v. Mellier, 59 Mo.' 388; Rev. Stat., sects. 3896, 3897; Loclcridge v. TJpton, 24 Mo. 184; Bickford v. Gibbs,- 8 Cushing, 154; Worcester v. Davis, 13 G-ray, 531.</p>

<p>Appeal from tlie St. Louis Circuit Court, I)Ariel Dillor, Judge.</p> <p>The court below erred in permitting the plaintiff to testify from the' paper prepared on the sixteenth of February, 1886. It was prepared for the special purpose of being used at the trial, and not in the ordinary course of business, and was, for this reason, not a proper paper to use for refreshing the witness’ memory. 1 Phillips on Evid. *347, 352. It was prepared too long (nineteen months) after the work was finished, and, for this reason, it was not proper to use it. 1 G-reenl. Evid., sect. 438 ; Maxwell x. Wilkinson, 113 U. S. 656; Chaffee x. United States, 16 Wall. 516, 541; Halsey x. Sinsebaugh, 15 N. Y. 485 ; Russell x. Railroad, 17 N. Y. 134, 139. To be admissible for the purpose of refreshing a witness’ memory, a paper must have been prepared, “contemporaneously with the transaction.” Steinkeller x. Newton, 9 Carr. & P. 313. Or, “near the time-.” Jones x. Stroud, 2 Carr. & P. 196. Or, “soon after the fact.” The People x. Ootta, 48 Cal. 168. Or, “at or about the time.” Philbin x. Patrick, 3 Abb.' (N. Y.) 605. Or, “at the time.” Folsom x. Apple Rixer Co., 41 Wis. '602 ; Kelsea x. Fletcher, 48 N. EL 282 ; Haxen x. Wendell, 11 N. H. 112; Cowles x. The State, 50 Ala. 454; McQausland x. Ralston, 12 Nev. 195. Evidence of the superintendent’s verbal order to the plaintiff to quit work was improperly admitted. Ahern x. Boyce, 19 Mo. App. 552. If he chose to accept a verbal order from Grrable, dispensing with the execution of a portion of the work, he acted in his own wrong, and in violation of his contract with the defendant. Brown x. Strimple, 21 Mo. App. 338 ; Hartiopee x. Pittsburg, 97 Pa. St. 107, 119; Ford x. United States, 17 Ct. of Claims, 50; Stuart x. Cambridge, 125 Mass. 102 ; Trustees x. Platt, 5 Brad. (Ill.) 567; White x. Railroad, 50 Cal. 417; Myers x. Sari, 30 L. J. Q. B. 9 ; Russell x. Sa Da Ban-diera, 32 L. J. C. P. 68. Where there is a written contract, accompanied by specifications, the superintending architect has no power to order a departure from them, ■even when not expressly restricted. Flesh x. Christo- • pher, 11 Mo. App. 483, 491: Starkweather v. Goodman, 48 Conn. 101. Where, in a case like this, the contract is wrongfully terminated by the defendant, the plaintiff may recover the reasonable value of his work without reference to the contract price ; but if the defendant is-not in fault the contract price always governs. Ahern v. Boyce, 19 Mo. App. 552. It is “ the standard of value.” Teats v. Ballentine, 56 Mo. 530, 534. The-plaintiff’s recovery can not exceed a proportionate part of the contract price. Marsh v. Richards, 29 Mo. 99, 105.</p> <p>If the termination of the contract was wrongful by the defendant, the measure of recovery wrould have been the reasonable value of his work, without regard to the contract price. McQullough v. Balter, 47 Mo. 401 ; Ahern v. Boyce, 19 Mo. App. 555. If wrongfully terminated by the plaintiff the measure would have been the actual value of the work done, not exceeding the contract price, less damages sustained by the defendant, through the breach of the contract. Ahern v. Boyce, 19 Mo. App. 555 ; Yeats v. Ballentine, 56 Mo. 530; Eyervnann r>. Mt. Sinai Cemetery Ass’n, 61 Mo. 400; Bavis v. Brown, .67 Mo. 313. The case presented at bar is one lying intermediate between the case of a wrongful termination by one party, and the other a rightful termination by each. Hence the measure of recovery is the actual value of the work done within the contract price. Neither party is entitled to damages, as for a breach of contract. This view of the law is sustained directly by the supreme-court. Marsh v. Richards, 29 Mo. 106.</p>

Louis Circuit Court,' W. IL Horner, Judge. The evidence shows that the plaintiff fully condoned all acts upon which ghe seeks to obtain a divorce long prior to the institution of this suit; and that, after condonation, the defendant commited no act which could be construed into a revival of the causes of divorce mentioned, and set forth, in the petition. Twy-man ». Twyman, 27 Mo. 383. The defence of condonation is equally applicable to cruelty and to other causes for divorce.

C. BlaND, Judge. To constitute seduction' the defendant must have used insinuating arts to overcome the opposition of the seduced, and must, by his wiles and persuasion, without force, have debauched her. 5 Wait’s Actions and Defenses, 655; Hogan v. Qregan, 6 Robt. [N. Y.] 138; Belvee v. Boardman, 20 Iowa, 446; Bell v. RinTcer, 29' Ind. 267; Broughton v. Smart, 59 Ill. 440. Corroborative evidence upon immaterial matters should not be permitted.

Charles County Circuit Court,. W. W. Edwards, Judge. The adj ustment made by the parties of their controversy amounted to a full and complete retraxit at common law, which was uniformly held to be res adju-dícala; the parties being personally present in court, at the time of the adjustment of the controversy, entered into the agreement themselves, and directed their attorneys to carry it out, which was done.

<p>Appeal from the Greene County Circuit Court,. James R. Vaughah, Judge.</p> <p>Wall should not have been compelled to investigate and unravel the-account of Rand with other buildings. Schulenburg v. Robinson, 5 Mo. App. 597 ; Schulenburg v. Yrooman, 7 Mo. App. 133. There was evidence tending to show a sale to Grubbs & Company on their personal credit, and instructions numbered one and two should have been given. Henry v. Rice, 18 Mo. App. 497; Livermore v. Wright, 33 Mo. 31; Phillips on Mech. Liens., sects. 122, 123. If an order was given by Rand, in substance, as pleaded by Wall, then it operated as a complete waiver and release, and refused instructions numbered four and five should, have been given. Phillips on Mech. Liens, sect. 273;. Gorman v. Sogner, 22 Mo. 137.</p> <p>An amended answer constitutes the only answer, and must contain all matters of defence. Rev. Stat., sects. 3545, 3776; Woolf'ollc v. Woolf oik, 33 Mo. 110 ; Tichenor v. Yoorhis, 46 Mo. 110. The points made in the brief of the appellant are entirely immaterial and have no application to the issues in this case between the appellant and the respondent. And the instructions asked upon those points by the appellant were properly refused by the court. Hassett v. Rust, 64 Mo. 325; Budd v. Hoffheimer, 52 Mo. 297; Longuemore v. Busby, 56 Mo. 540 ; The State v. Miller, 67 Mo. 604; The State v. Little, 67 Mo. 624; Quinlivan v. English, 44 Mo. 46. Only such, issues as are made by tlie pleadings should be . submitted to the jury by instructions. Fulkerson v. Thornton, 68-Mo. 468 ; Kenney v. Railroad, 70 Mo. 252; Hugent v. Curran, 77 Mo. 323. The fourth instruction asked by the appellant, concerning the waiver of the lien, submits to the jury a question of law as to the legal effect of a written instrument, and was properly refused by the court. Fiogate v. Carter, 6 Mo. 267 ; .Newman v. Lawless, 7 Mo. 279; Hickey v. Ryan', 15 Mo. 62; Crawley v. Mullins, 48 Mo. 517; Jordan v. The City of Hannibal, 87 Mo. 673; Morgan v. Durfee, 69 Mo. 469 ; Railroad v. Cleary, 77 Mo. 634; Turner v. Railroad, 76 Mo. 261</p>

Louis Circuit Court, George W. Ltteke, Judge. The compromise is conclusive, as to all questions therein’emb raced. Reilly v. CTiouquette, 13 Mo. 226. No investigation into the character or value of the different claims submitted will be entered into for the purpose of setting aside a compromise, it being sufficient if the parties entering into the compromise thought, at the time, that there was a question between them. Ciarle v..

<p>Appeae from the Clarke County Circuit Court, Ben. E. Tuenee, Judge.</p> <p>“All the facts constituting'tke cause of action must be stated.” Battell v. Crawford, 59 Mo. 215; Wiggins v. GraJiam, 51 Mo. 17 ; Pier v. Henrichoffen, 52 Mo. 333 ; Curren v. Downs, 3 Mo. App: 468; Turley v. Edwards, 18 Mo. App. 676; Herr v. Bimmonds, 82 Mo. 275. The probate court has original exclusive jurisdiction. Tttterington v. Hooker? 58 Mo. 593; Pierce v. Calhoun, 59 Mo. 271; Chandler e. Stevenson, 68 Mo. 450; Julian v. Ward, 69 Mo. 158; French v. Stratton, 79 Mo. 560. The allegations-in the petition are not sustained by the evidence, even, if the facts proved authorized the administrators to pay the claims and be subrogated; for the reason that the court must find the facts set out in the petition to be true, and base its decree upon them. Story’s Eq. [8 Ed.] p. 251, sect. 257; Ellis v. Railroad, 17 Mo. App. 126; Maguire v. Taylor, 47 Mo. 115; McKnight v. Bright, 2 Mo. 110.</p> <p>The bill of exceptions was insufficient, as not identifying the papers called for. Lehew v, Morrison,, 17 Mo. App., 633; Walker v. Stoddard, 31 Mo. 123 Railroad v. Wagner, 19 Kan. 335 ; Harmon v. C handler, 3 Iowa, 152; Hill r>. Holloway, 52 Iowa, 678; Hicks-v. Person, 19 Ohio, 446; Sexton v. Willard, 27 Wis. 465; Bank v. Mosely, 19 Ala. 222; Looney v. Bush, Minor, 413; Carlington v. Jones, 37 Ala. 240; Tuska-loosa County v. Logan, 50 Ala. 503; Bradley r>. Andress, 30 Ala. 80; The State v. Huff, 11 Nev. ,17; The State v. Larkin, 11 Nev. 314; Busby v. Finn, 1 Ohio St. 409; Irwin v. Smith, 72 Ind. 482; Mills v. Simmonds, 10 Ind. 464; Calvert v. Makepeace, 8 Blackf.. 575 ; Board v. Embree, ,7 Blackf. 461; Spears v. C lark, 6 Blackf. 167; *Huff v. Gilbert, 4 Blackf. 19; The State ex rel. v. Hoggle, 16 Wis. 333; Frost v. Bates, 16 Yt. 145, and note. It affirmatively appears that all the evidence is not preserved and hence the decree can not be reviewed. The State ex rel. v. Kamp, 8 N. E. Rep. 714; Collins v, Collins, 100 Ind. 266. An administrator, who, in good faith, pays the debt of an estate, inay be subrogated to the rights of thé creditor. Smith v. Hoskins, 7 J. J. Marsh. [Ky.] 502; Pea v. Waggoner, 5 Hayw. 242; Trumbo v. Sorrency, 3 B. Mon. [Ky.] 284; Williams's. Williams, 2 Dev. Eq. 69; Watkins v. Dorsett, 1 Bland Cli. 530 ; Qollinson v. Owens, 6 G. & J. 4; Kinney v. Harvey, 2 Leigh [Ya.] 70; Pendergass v. Pendergass, 1 S. E. Rep. 45; Wernecke v. Kenyon, 66 Mo. 275 ; Van Bibber v. Julian, 81 Mo. 618.</p>

<p>Appeal from the St. Louis Circuit Court, George W. Lubke, Judge.</p> <p>The court erred in admitting illegal and improper evidence offered by the plaintiff, and in excluding legal and proper evidence offered by the defendant. Railroad v. Huntley, 38 Mich. 537. The court erred in refusing the instruction, in the nature of a demurrer to the evidence, asked by the defendant at the close of the ■whole case. Hoke v. Railroad, 11 Mo. 579 ; Rollback v. Railroad, 43 Mo. 187; Whalen v. Railroad, 8 Ohio St. 249; Oormley v. Railroad, 72 Ind. 31; Collins v. Railroad, 31 Minn. 31; Henry v. Railroad, 81 N. Y. 373; Campbell v. Railroad, 24 Am. & Eng. Ry. Cases, 427. The court erred in refusing proper and legal instructions asked by the defendant, and in giving illegal and improper instructions asked by the plaintiff. McGrath v. Railroad, 18 Am. & Eng. Ry. Cases, 6; Railroad v. Wachter, 60 Md. 395 ; Railroad v. McKenzie, 24 Am. & Eng. Ry. Cases, 405 ; Renfro v. Railroad, 86 Mo. 302; Hallihan v. Railroad, 71 Mo. 113 ; Clark v. Railroad, 92 Ill. 43; Morgan v. Railroad, 5 Best & S. 570.</p> <p>The declaration of the witness was immediately after the injury, as soon as Varley could get to him ; it was immaterial in itself, but the court was clearly right in admitting it as a part of the res gestae. Brownell v. Railroad, 47 Mo. 245; Harriman v. Stowe, 57 Mo. 96; Hntwhistle v. Heighner, 60 Mo. 215. The testimony of Dr. Yasterling, as to information gained in his capacity of physician, in order to prescribe for him, was clearly incompetent. Gartside v. Ins. Co., 76 Mo. 446 ; Groll v. Tower, 85 Mo. 255. The persons were not fellow-servants. Vautrain v. Railroad, 8 Mo. App. 543; s. c., 78 Mo. 44; Lewis v. Railroad, 59 Mo. 495; Porter v. Railroad, 71 Mo. 78; Hall v. Railroad, 74 Mo. 298.</p>

<p>Appeal from the St. Louis Circuit Court, Leroy B. Valliant, Judge. . •</p> <p>The notice to Truitt by publication was fatally defective. The judgment against him is, therefore, void. Rev. Stat., sect. 2876. The judgment being void as to Truitt, it is void as to Wonderly. Pomeroy v. Betts, 31 Mo. 419; Holt Co. v. Harmon, 59 Mo. 165; Covenant Mutual Insurance Co. v. Clover, 36 Mo. 392; Smith v. “Hollins, 25 Mo. 408; Push v. Rush, 19 Mo. 441; Lenox v. Ciarle, 52 Mo. 115 ; Freeman on Judgments, sect. 136.</p> <p>By appealing said cause, and trying it de novo in the circuit court, the appellant waived any “ error, defect, or imperfection in the original summons or the service thereof (if any such there be), and dispensed with the necessity of a regular summons before a justice.” Rev. Stat., sect. 3052; Botclware v. Rail/road, 79 Mo. 494; Gantt v. Railroad, 79 Mo. 502; ReddicJc v. Newburn, 76 Mo. 423.</p>

Louis Circuit Court, Shepard Barclay, Judge. The court below, erred in its view of the law. The court is mistaken in supposing that the referee found, as matter of law, that there had been no appropriation of the payments by the appellants. If the referee has made such finding of law, it is erroneous under his finding of the facts. 1 Am.

Louis Circuit Court, DANIEL DILLON, Judge. The defendant being guilty of conduct such as to constitute him a vagrant within the meaning of the law concerning vagrants, by his utter neglect to contribute ~to the support of his wife, though possessed. of ample means to do so, is a valid ground for divorce. Rev. Stat., sects. 1568, ~174; T~JT7i~aley v. Whaley, 50 Mo. 581; The State ~. Green, 87 Mo. 587; .7k/c Vey v. Mc Vey, 51 Mo. 420.

<p>Í. Contracts — Construction of — Practice.—The construction of a-written instrument, whose terms are ambiguous, is for the court, unaided by expert testimony.</p> <p>2. -Interpretation by Parties. — The construction placed by the parties thereto, by their acts, upon any ambiguity in the terms of a contract, .when taken in connection with the surrounding circumstances, will prevail when it is not wholly at variance with, a correct legal interpretation.</p>

<p>I. Pleading and Proof. — A plea that A and B promised in writing may be substantiated by proof that A promised in writing, that B was jointly interested with A, and that they both intended to be bound thereby.</p> <p>S.-Fraud. — A mere allegation that representations of a party to a contract were false is insufficient to avoid the contract on the ground of fraud ; the representations must have been made with a knowledge of their falsity.</p> <p>3. Master and Servant — Rightful Discharge of Servant. — A master who hires a servant for a definite period of time, on the faith of the latter’s representations as to his capacity in that line of employment, may terminate the contract before the expiration of the time, if such representations are untrue.</p> <p>á.-Action for Wages — Recoupment for Damages. — In such a case, the servant may recover the value of the service actually rendered, subject to recoupment by the master for damages caused by the former’s inefficiency to perform the service in accordance with his representations.</p>

Louis Circuit Court, Anos M. Thayek, Judge. The tenure of the office of Speaker of the House of Delegates is one year. Charter of St. Louis, art. 3. The right to preside over the House is a franchise. Dillon Mun. Corp., sect. 272 ; Ang. & Ames on Corp., chap. 12, sect. 6, p. 416.

Yaughan, Judge. This suit is based upon the agreement of the defendant, contained in his deed, to satisfy the Uilmann deed of trust, and fraud in failing to satisfy it, and selling the land subject to it, and not for breach of the covenant against an incumbrance, and there is a broad difference between a contract to discharge or acquit from a debt, and one to discharge or acquit from damage by reason of it. 2 Sutherland on Damages, pp. 329 and 330.