Volume 261 — Missouri Reports

— Hon. Edward E. Porterfield, Judge. (1) Instruction number 2, given at request of appellant, was properly given. There was no evidence in the case tending to prove tbe converse. Sotebier v. Transit Co., 203 Mo. 721; Canaday v. United Railways Co., 130 Mo. App. 289; Peck v. Traction Co., 131 Mo. App. 141. Evidence having been admitted as to the fact it was proper for the court to limit its effect by instruction.

Genevieve Circuit Court . — Eon. Charles A. Killian, Judge. (1) This being a suit under Sec. 2535', R. S. 1909, with a common source of title proven, the court is limited to the respective claims of title, between plaintiff and defendant. Graton v. Halliday Lbr. Co., 189 Mo. 322; Gage v. Cantrell, 191 Mo. 705; Machine Wks. v. Bowers, 200 Mo. 219 ; Dixon v. Hnnter, 204 Mo. 390. James B. Easley, the record owner of the land, was never sued.

— Ron. James D. Barnett, Judge. (1) The court had jurisdiction of the subject-matter and of all the parties having any interest in the lands sought to be partitioned and under the laws of this State, the lands were subject to partition between the parties. Sikemeier v. Galvin, 124 Mo. 367; McQueen v. Lilly, 131 Mo. 9.

— Hon. E. E. Porterfield, Judge. (1) The court erred in not declaring as a matter of law that respondent was not entitled to recover. (a) There was no showing that the United States had ever parted with its title to the land. Sec. 4 of the 5th Clause, Act of Admission, Stats. 1909, p. 38; See. 6316, R. S. 1909; Stephenson v. Stephenson, 71 Mo. 127.

— Hon. James E. Goodrich, Judge. Plaintiff failed to establish a case, (a) There must be some substantial evidence to uphold a verdict. Dutcher v. Railroad, 241 Mo. 167; McNulty v. Railroad, 166 Mo. App. 461; Champagne v. Harney, 189' Mo. 729. (b) The only duty resting upon defendants was reasonable inspection. Gutridge v. Railroad, 94 Mo. 474; O’Flanagan v. Railroad, 145 Mo. App. 283; Howard v. Railroad, 173 Mo. 529.

Court. — Hon. E. E. Porterfield, Judge. (1) The court erred in overruling defendant’s instruction in the nature of a demurrer to the evidence at the close of the evidence. Williams v. Railroad, 149 Mo. App. 489; Koenig v. Railroad, 173 Mo. 698; Klockenbrink v. Railroad, 172 Mo. 678; Moore v. Railroad, 194 Mo. 1; Eppstein v. Railroad, 197 Mo. 720; Murrell v. Railroad, 105 Mo. App. 88; Abbott v. Railroad, 121 Mo.

Louis City Circuit Court. — Hon. , George C. Hitchcock, Judge. (1) • The second amended petition is wholly without equity, (a) It showed that the plaintiff had no right to the exclusive possession of the premises, or the exclusive use of the rents. 1 Tiffany, Real Prop., p. 381; 2 Jones, Real Prop., sec. 1791; 1 Washburn, Real Prop.

— Hon. Hopldns B. . Shain, Judge. (1) The court should have given the peremptory-instruction, asked hy appellants at the close of all the evidence, because the petition does not state a cause of action, in that it does not allege that the cross-arms and pins referred to in respondent’s petition were furnished for the purpose of bearing the weight of linemen, or that respondent, while using same, was acting in the discharge of his duties. Roberts v. Tel.

Louis City Circuit Court. — Hem, William M. Kinsey, Judge. (1) The first instruction of the court in this case was insufficient in that it did not require the jury to find the defendant feloniously took, stole, and carried away money and property nor did it require them, to find that the defendant took the property with the felonious intent to convert the same to his own use.

Louis County Circuit Court. — Son. John W. McElhinney, Judge. (1) The memorandum in this case is sufficient. Sec. 2783, R. S. 1909; 20 Cyc.- 253; Springer v. Kleinsorge, 83 Mo. 157. (2) Memorandum of a contract of sale and conveyance of land, although signed only by the party to be charged when sufficiently clear and certain in its terms, affords a competent basis for a. suit for specific performance. Mastin v. Grimes, 88 Mo. 478; Moore v. Thompson, 93 Mo.

— Hon. B. G. Thurman, Judge. (1) The petition does not state facts, sufficient to constitute a cause of action. It may state a. case against the collector, but not against the city which innocently received the money. 27 Cyc. 865; Case v. Packing Co., 105 Mo. App. 172. (2) It is against equity and the natural justice of the thing for the plaintiff to recover in this case. Hethcoek v. Crawford Co., 200 Mo. 177.

— Hon. Guy D. Kirby, Judge. . . .(1) By notifying Joe Roby that he would not accept payment of the note unless Roby would first agree to let the note be marked paid, Smith waived the necessity of and actual tender of the money due on the . note. 38 Cyc. 134,144; Stephens v. Kilpatrick, 166 Mo. 262; Westlake v. St. Louis, 77 Mo. 47; Johnson v. Gñarlichs, 63 Mo. App. 578; Walsh v. St. Louis Exposition Assn., 101 Mo. 534.

— Ron. C. A. Calvird, Judge. The evidence in this case does not show that the deed to the plaintiffs was ever delivered. The attorney who presented it and before whom it was acknowledged, who was introduced-by the plaintiff, testified that after the acknowledgment he returned it to the grantor. The evidence is undisputed that she delivered the three deeds in question to her son, Fred, to be kept for her in his safe, until she called for them.

Circuit Court. — Hon. R. A. Breuer, Judge. (1) It was error for the jury to return a joint verdict. State v. Person, 234 Mo. 262. (2) The court erred in not instructing the jury that the statements made by Taylor would not bind Hoffman, and the statements of Hoffman would not bind Taylor. R. S. 1909, sfec. 5231; State v. Bidstrup, 237 Mo. 385.’ (3) The alleged verdict, as returned by the jury, is absolutely void and no verdict at all.

— Hon. J. G. Sheppard, Judge. (1) The proof in this case shows conclusively that neither plaintiff nor those itnder whom he claims have ever been in possession of the land in controversy or any part thereof, nor did the plaintiff or any one under whom he claims, pay any taxes on the land in controversy or any part thereof for more than thirty-five years- next before the commencement of this suit.

— Hon. James T. Neville, Judge. (1) Under the allegations of the' petition, the plaintiff had a subsisting contract of employment, as a member of the faculty of Drury College. The dismissal of plaintiff without just cause, as it was, is a breach of such contract and would entitle plaintiff to recovery against Drury College. (2) Under the allegations of the petition, the defendant Briggs was guilty of slander and of libel.

— Hon. Arch. Davis, Judge. (1) Defendant’s instruction in the nature of a demurrer to the evidence should have been given for the reason that the plaintiff’s admitted neglect to use the handhold, free from all defects, on the cab side, contributed as a proximate cause to bis fall and subsequent injury. 201 Am. & Eng. Ency. Law (2 Ed.), p. 140; 26 Cyc.’1247; McG-inty v. Waterman, 93 Minn. 242, 3 Am. & Eng. Ann. Cases, 41; Walter v. Wire Co., 14 Mo.

Louis City Circuit Court. — Hon. Leo 8. Rassieur, Judge. - (1) The mud scraper, by reason of its character, location and condition, was an… Held: as a matter of law, to have known and accepted all the risks- of the premises which were open and obvious to the sense of any man. (a) This has been applied to overhead dangers, as where a railroad brakeman ran into an overhead bridge, or a driver drove under a low gateway. Devitt v. Eailroad, 50 Mo. 302; Baker v. Asphalt Pav.

Louis Court of Criminal Correction.— Ron. Galvin N. Miller, Judge. (1) The act is a special law, although a general law might have been made applicable, and it therefore violates subdivision 32 of section 35' of article 4 of the Constitution of Missouri.

— Hon. G. H. Skinker, Judge. The court erred in rendering judgment in favor of defendant for a one-fifth interest in the land because there was no evidence to support such judgment and because it is outside the issues raised by the pleadings. Ford v. Gebhardt, 114 Mo. 298; Hill v. Mining Co., 1Í9 Mo. 27; Blaine v. Knapp, 140 Mo. 251; Gibson v. Cranage, 39 Mich. 49; Zaliski v. Clark, 44 Conn. 218; Printing Co. v. Thorpe, 36 Fed. 414; Walker v. Auto Co., 124 Mo.

— Hon'. James D. Barnett, Judge. Bepeals by implication are not favored and both sections are permitted to stand if it can be done on-any reasonable construction, and it is the duty of the court to harmonize them if possible. State ex rel. v. Amick, 247 Mo. 271; State ex rel. v. Brodie, 161 Mo. App. 538; Decker v. Diemer, 229 Mo. 296 ; St. Louis v. Kellman, 235 Mo. 687; State v. Bratzer, 245 Mo. 499.

<p>Appeal from Randolph Circuit Court. — How. James D. Barnett, Judge.</p>

W. 0. Thomas, Judge. (1) It being conclusively proven that appellant at the time she signed the deed sought to be set'aside refused to acknowledge it and declared it was not her free act and deed, the burden of proof as to any subsequent acknowledgment is upon the respondent. (2) The evidence does not justify the finding that appellant acknowledged her signature to the deed. (3) Such finding, if justified, is not decisive of any material issue in the case.

— Now. A. D. Burnes, Judge. As to bequest by clause 12 of the will; the will imperatively requires that a portion of the funds go to the trustee for each of the following purposes; purchase of parsonages, furnishing parsonages, maintenance of parsonages, repair of parsonages, construction of church edifices, furnishing church edifices, maintenance of church edifices, repair of church edifices, and the general advancement of Christianity; but the will does not state, nor…

Appeal fom St. Louis County Circuit Court. — Hon, G. A. Wurdemon, Judge. (1) If the deed from Greeley to L. F. Pillman is a forgery, as the trial judge found it to he, then the defendant by reason of her mutual relationship to L. F. Pillman, in respect to the lands, is, as would have been her devisor if he had been defendant in her stead, estopped to assert title in or lawful possession of the lands by virtue of the forged deed.

<p>Error to Butler Circuit Court. — Hon. J. G. Sheppard, Judge.</p>

— Hon. Herman Brumback, Judge. (1) Plaintiff’s first instruction was erroneous for two ■ reasons: (a) Because it enlarged the issues framed by the petition; (b) because it was not'justified by the evidence. The petition charged that it was the duty of the gripman to act when he saw the plaintiff in a situation where he was liable to be run into.

Clair Circuit Court. — Hon. G. A. Denton, Judge. (1) While it is held that a testator may authorize his executor or trustee to sell land in a foreign jurisdiction, and that such power may he exercised without administration in the foreign jurisdiction, yet in such cases the donee of the power acts by the express authority of the will and without the aid of legal process.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The debenture bonds, to secure which the notes in question in this case are deposited, are issued under express authority of the statutes defining the power of trust companies. R. S. 1909, sec. 1124. (2) Statutes imposing taxes are strictly construed against the State and in favor of the taxpayer. 37 Cvc. 768; State ex rel. v. Alt, 224 Mo. 513.

— Hon. G. A. Lucas, Judge. (1) Under tlie pleadings and evidénce the plaintiff was not entitled to recover, and the court should have instructed the jury to return a verdict for defendant.

— Hon. Thomas J. Seehorn, Judge. (1) The trial court should have directed a verdict for the defendant, (a) The plaintiff was guilty of violating every positive and distinct rule of the company, the observance of any one of which would have prevented the accident.

Mandamus. (1) It is necessary that a bill receive a majority of all the members of each house before the same can become a law. Sec. 31, art: 4, Constitution. (2) If the journal of the House of Representatives shows that this bill did not receive a constitutional majority, the same is invalid and never became effective as a law of this State.

— Hon. John G. Park, Judge. (1) Defendant contends that the petition does not state a cause of'action because as he says, “there is no allegation in it that the appellant was the owner of the land described.” There is no merit in this contention. Sayre v. Devore, 99 Mo. 446; R. S. 1909, sec. 1836; Pomeroy v. Fullerton, 113 Mo. 440. (2) Specific performance of an optional agreement to sell real estate will be enforced by a court of equity.

Quo Warranto. (1) The sale of intoxicating liquors is immoral and illegal, (a) The tendency of the sale of intoxicating liquors is to deprave public morals, and its sale is therefore illegal. Its sale is “malum prohibitum” if indeed it is not “malum in se.” Austin v. State, 10 Mo. 591; State ex rel. v. Hudson, 78 Mo. 302; State ex rel. v. Moore, 84 Mo. App. 18; State v. Davis, 108 Mo. 6701.

— Row. Eopldns B. Shain, Judge. ■ (1) The court erred in refusing the peremptory instruction in the nature of a demurrer to the evidence asked by the defendants at the close of the entire testimony. There was no substantial evidence that, at the time of execution of the will and codicil in question, the testator did not have the requisite testamentary capacity.

Mandamus. (1) The act relates to but one subject, namely, consolidated school districts, and therefore does not violate section 28 of article 4 of the State Constitution.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) Plaintiff bas not stated a cause of action-unless the allegations of the petition are sufficient for reliance on section 6944, Revised Statutes 1909. Blum v. Ins. Co., 197 Mo. 513. (2) The Missouri statutes have no extra-territorial effect.

— Now. David N. Eby, Judge. (1) The petition does not state facts sufficient to constitute a cause of action, (a) It is not averred that Louis Landau, as trustee, ever paid the purchase price of $3 and received a deed from the sheriff as execution purchaser. A purchaser at execution sale acquires no title to the real estate until the deed has been executed by the proper officer.

Francois Circuit Court. — Now. Peter H. Pluck, Judge. (1) The swearing of the jury the first time caused jeopardy to set in and hence defendant’s motion for a -directed verdict should have been sustained. Ex parte Snyder, 29 Mo. App. 260: (2) Instruction 1, given by the court was erroneous as not properly dedaring the law of the case to the jury.

— Son. G. A. Benton, Judge. (1) There being no substantial evidence of lack of testamentary capacity, it was the duty of- the trial court to direct a verdict for the defendant, and having failed to do so, this court will review all the testimony, and finding no such evidence will reverse the case and remand with directions to enter a judgment sustaining the will.