Volume 27 — Missouri Appeal Reports

Charles Q. Burton, Judge. Tlie case is sufficiently stated in tlie opinion. I. Plaintiffs’ third instruction ought to ham been given. The testimony shows that, as soon as the defendants received the machine, they knew it was not what they wanted, nor what their customer wanted; but,' instead of returning it at once, unused, they tried to work up a sale, and insisted on the customer taking it out to his farm and using it, although he protested that he did not want it.

James H. Sloyer, Judge. The case is stated in the opinion. 1. Neither the original, nor amended account, nor the evidence, shows any indebtedness of Carlson to P. J. Morley. There is Morley’s admission that Carlson’s bill against Morley is $511.15, while the charge of $469.80, “cash on account of materials and labor,” is unproved, and not the slightest evidence of the three items last stated is offered. II.

James B.' CrANTT, Judge. The case is stated in the opinion. I. The itemized account in favor of appellant, and against respondent, and which is the foundation of this action, is in words and figures, as follows: Butler, Mo., Oct. 8, 1885. City oe Butler, To J. B. Dickerson, Dr. 1885. July.

Charles G-. Burton, Judge. I. Granting a new trial is largely discretionary with the trial court, but abuse of that discretion is reversible error. Fretwell v. Laffoon, 77 Mo. 26. II. Discretion is abused, if a new trial is granted when the evidence clearly preponderates in favor of the. first verdict. Hides v. Stone, 13 Minn. 434 ; Young v. Davis, 15 N. W. Rep. 174; Street Railway Go. v. Rheiner, 12 N. W. Rep. 449. III.

Turner A. Gtll, Judge The case is stated in the opinion. I. The court erred in rendering judgment for defendant, in the sum of $21.4.60. The value of the prop-erty at the time of the assessment by the jury, is the value to be found by the jury. Richey v. Burns, 83 Mo. 362; Mix v. Kepner, 81 Mo. 93; O hapman v. Kerr, 80 Mo. 158; Pope v. Jenkins, 30 Mo. 528-537 Buckhold v. Rud/row, 19 Mo. App. 60.

Joseph P. Grubb, Judge. The case is stated in the opinion. I. The policy purported to insure Daniel Bansomagainst loss by fire “ on his two-story brick, shingle-roof building.” The acceptance of the policy thus worded, with the condition therein that, “if the assured is not the sole, entire, and unconditional owner of the property insured, and (if a building is insured) of the land on which the building stands, by a sole, unconditional, and entire ownership, and title in…

Joseph P. Gtrubb, Judge. The case is stated in the opinion. Held: or notice given for the same, and the records disclose an absence of any such notice or special meeting, but that the acts of appellant complained of were done at the annual meeting for the year 1884. Laws Mo. 1881, p. 199; Rev. Stat., sect. 7063. III.

John P. Strother, Judge. The case is stated iu the opinion. I. An assignee takes the assigned property subject to all liens upon it. Burrill on Assign., sect. 391, and cas. cit.; Clark v. Flint, 22 Pick. 33 ; 19 Am. Dec. 395; State ex rel. v. Bowse, 49 Mo. 586, 592, 593. II.

M. G. McGregor, Judge. Statement of case by the court. This is an action to recover on a fire insurance policy. The evidence tends to show that the plaintiffs are husband and wife, colored people, living in the city of Carthage. They were unlettered, and unfamiliar with the transaction of matters pertaining to insurance policies. They owned a small house and some furniture,' situated in said town.

James M. Davis, Judge. The case is stated in the opinion. I. The circuit court erred in overruling appellant’s objections to the final settlement, as to the following items of credit claimed by the administrator : (1) The item of sixty dollars for taking care of the estate. (3) The item of $35.35 for services in renting real estate and collecting rents. (3) The item of $18.45, payment for insurance. (4) The items of “ $18.40 ’’and “ 36.40” for sundries.

Chas. H. S. Goodman, Judge. The case is stated in the opinion. I. The mortgage to Harriet C. Northnp being given upon a stock of goods and furniture, the mortgageor remaining in possession after its execution, and disposing of same for her own use with the knowledge and consent of the mortgagee is a fraud upon the creditors of the mortgageor.

. Jos. P. G-eubb, Judge. Statement of case by the court. This is an action to recover from the defendant three several tax bills for macadamizing, done by plaintiff in front of defendant’s property, under an ordinance of the city of St. Joseph.

James-H. Slover, Judge. Statement of case by the court. This was an action to recover damages caused- to the-property of the female plaintiff by the defendant obstructing the free flow of the water of a natural stream. The obstruction consisted of a culvert, built in the stream, where one of the defendant’s streets crossed the same,, insufficient in size to carry off the water of the stream.

Francis M. Black, Judge. Statement of case by the court. This is an action by the plaintiff, a contractor, to recover on the following contract, and to enforce a mechanic’s lien on the property therein named : “An agreement of two parts, made this fourteenth day of September, A. D., 1882, by and between I. J. Lewis, contractor, and Mrs. S. J. Slack, owner, witnesseth, that for and in consideration of the sum of money to be paid to the said Lewis by the said Slack, as…

E. L. Edwards, Judge. Statement of case by the court. This is an action by attachment, instituted on -the fifteenth day of March, 1882, in the Miller circuit court. The ground of the attachment, as alleged in the affidavit, was that defendants had fraudulently conveyed and assigned their property and effects so as to hinder and delay their creditors.

E. R, Edwards, Judge. Motion for rehearing denied. The case is stated in the opinion. I. The petition fails to state a cause of action.' It does not allege that the mortgages embraced all of the property, real and personal, of the mortgageors. Nor does the evidence show that the Goldens had no other property than that mentioned in the mortgage. This objection was raised at the trial, on the first offer of eviclence Tby the plaintiffs, and. was well taken.

Andrew Ellison, Judge. The case is stated in the opinion. I. Plaintiff’s allegation of negligence in respect to the length of time the handle had been permitted to remain in the car, and the failure of the defendant to inspect the same, was not supported by a scintilla of evidence. Negligence cannot be presumed, but must be proved. Railroad v. Kirlmood, 45 Mich. 56; Brown v. Railroad, 49 Mich. 156 ; Catron v. Nichols, 81 Mo. 80 ; Stepp v. Railroad, 85 Mo. 229.

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

Louis Circuit Court, Daniel Dillon, Judge. The intention of the framers should be considered in the interpretation, and when such intention is ascertained, it will govern the application of the statute, even though such application be contrary to the strict letter of the law. Riddick v. Governor, 1 Mo. 147; The State v. Emerson, 39 Mo. 80 ; The People v. Insurance Go., 15 Johns. 380; Whitney v. Whitney, 14 Mass. 92.

<p>1. Negligence, Contributory. — A person who is about to cross a railroad track is bound to look and listen for approaching trains, and his failure to do so debars his recovery, although the railroad company fails to give the proper cautionary signals.</p> <p>2. Special Findings — Practice.— If the special findings of a jury show a payable bias in their minds, the unsuccessful party will be entitled to a reversal of the judgment.</p>

Charles County Circuit Court, W. W. Edwards, Judge. The jury should have been instructed to assess, and they should have assessed, the value of the property at the time of making the assessment. Richey v. Burns, 83 Mo. 362; Mix v. Kepner, 81 Mo. 93 ; Chapman v. Kerr, 80 Mo. 158; Pope v. Jenhins, 30 Mo. 528. The value of the property exceeded the justice’s jurisdiction.

Noaii M. GrIYAN, Judge. Order of transfer to the Supreme Court. The case is stated in the opinion. I. When two canses of action are joined in one petition, and a separate verdict returned on each, and a new trial is had of one cause, the plaintiff may dismiss as to this cause, and take judgment for the other. Mooney v. Kennett, 19 Mo. 551.

Eeeoe to Cooper Circuit Court, Hon. E. L. Edwaeds, Judge. Order of transfer to Supreme Court. Statement of case by the court. This was a proceeding instituted in the probate court of Cooper county, for distribution of the surplus personal estate in the hands of the petitioner, as administrator of the estate óf Henry Elliott, deceased. It was based on that provision of the statute authorizing a distribution, after one year from grant of letters.

James H. Slover, Judge. Cause certified to Supreme Court. Statement of case by the court. This was an action for the recovery of damages on account of personal injuries alleged to have been received by the plaintiff by reason of the defendant carelessly and negligently permitting a sidewalk on one of its streets to become and remain in a dangerous and unsafe condition.

Charles H. S. Goodman, Judge. Cause certified to Supreme Court. Statement of case by the court. The plaintiff brought suit against the defendants, upon a promissory note for five hundred dollars, executed by them, payable to the plaintiff in one year from •date. Afterward the plaintiff brought suit against the •defendants upon another promissory note, executed by the defendants for the same amount, payable to the-plaintiff two years from date.

H. S. Kelley, Judge. Motion for rehearing denied. The case is stated in the opinion of the court. Held: correct. Jones v. Angelí, supra. Where wilfulness is not charged in an action for negligence, even the slightest contributory negligence defeats recovery. Railroad r>. Shanks, supra; Railroad ». Uetherington, supra.

Andeew Ellison, Judge. Statement of case by the court. This cau.se originated in the circuit court of Adair county, and its venue was changed to Macon county. Held: not only in the Supreme Court, but by this court, that a party cannot try a cause upon one theory in the circuit court, and shift his ground in the appellate court, that we do not deem it necessary to cite authorities on the subject. III.

GJ-eorge H. Btjrckhartt, Judge. The case and facts are stated in the opinion of the court. I. Iu attempts to exercise the right of eminent domain, the utmost strictness is required ■ to give validity to the proceedings. The jurisdictional facts must appear upon the record.

Elijah Robinson, Judge. Statement of case by the court. This is an action to enforce a landlord’s lien, with a prayer for a writ of injunction. The facts, as they appear from the pleadings and evidence, are, that, in 1884, the plaintiffs leased their farm to the defendant, Stock-well, for a term of years, taking from him promissory notes for the payment of the rent money. The lease was to terminate the first of March, 1887. The rent was paid up to the year 1886.

John P„ Strother, Judge. Statement of case by the court. This action arose in a justice’s court. The statement contained two counts.

Noah M. Givan, Judge. The case and facts are stated in the opinion of the court. I. The agreement between Keene and Guihen was an equitable assignment, pro tanto, of the proceeds of the contract between Keene and the county, as the-material furnished amounted to. In order to establish it, it was not necessary that it should have been in express terms ; nor in writing. Smith v. Sterritt, 24 Mo. 260; 2 Story’s Eq. Jur., sect. 1047; Dillon v. Barnard, 1 Holmes (U. S. Circt.

Elijah Hobinson, Judge. Statement of case by the court. This action was founded upon a promissory note.

<p>1. Tender- of Money — Rule Governing Under Section 2924, Revised Statutes — Effect of Payment to Constable. — Under section 2924, Revised Statutes, the provision is, that if, at anytime, after the commencement of the suit, the defendant pay the constable the full amount which he owes the plaintiff, up to that time, with all costs then accrued, and the suit be not discontinued, but be further prosecuted, and the plaintiff shall not recover judgment for a larger amount, exclusive of costs and interest since accrued, than the sum so paid to the constable, then the plaintiff shall pay all costs accruing after such payment. Held, that the statute discharges the defendant for liability from accruing costs (unless judgment is recovered for a larger amount, etc.), if the suit be not discontinued. Held, further, that by the payment of the money, the money passed into the custody of the law, and was thereafter subject alone to the demand of the plaintiff, for whom the constable held it. (Following Foss v. McGuire, 26 Mo, App. 452).</p> <p>> 2. -Withdrawing Tender — Effect of. — Where, upon the trial in the circuit court (the tender in this case having been made in the justice’s court), the defendants’ counsel, before offering any evidence, announced the withdrawal of the tender so made as aforesaid. Held, that whether the tender was actually received back from the constable, or whether the circuit court granted the application to withdraw, neither could affect the right of the plaintiff, it not consenting thereto, to demand of the constable the sum so tendered.</p>

Turner A. Hill, Judge. Tke case and facts are stated in the opinion of the court. I. The defendant delivered the goods upon reasonable identification, considering the nature of the express business, without neglect of any duty imposed upon it, and, in the absence of negligence connected with the shipment or delivery, is not liable. Steamboat v. Moies, 28 Mo. 243; Express Co. v. Van Meter, 17 Fla. 783; s. o., 35 Am. Rep. 107; 15 Fed.

John P„ Strother, Judge. Statement of case by the court. This was an action on a written contract against the defendant as one of sixty-two parties who had executed, it.

Gr. D. Burgess, Judge. Statement of case by the court. This is an action to recover double damages for the killing of plaintiff’s cow, by one of defendant’.s locomotives. There is no contention as to the fact of killing, but the controversy is as to the duty of the defendant railroad company to maintain a fence on the sides of its road, where the injury occurred.

E. C. Devore, Special Judge. Statement of case by the court. This was a prosecution instituted before a justice of the peace by information, charging the defendant with a misdemeanor. The defendant was convicted in the justice’s court, and he appealed to the circuit court.

A. J. Seay, Judge. The case is stated in the opinion. I. This was a prosecution against the appellant for petit larceny, upon an information filed by the prosecuting attorney of Osage county, Missouri. The information was not verified by the oath of the prosecuting attorney, nor by any one else. II.

Aureal from Clinton Circuit Court, Hon. James M. Sandusky, Judge. Tlie case and facts are stated in the opinion of the court. I. Defendant was not charged with having placed the salt on the track. It was not bound to suspect or anticipate that a stranger would place it there. There is no evidence that defendant’s servants knew that the salt was on the track. Qrafton v. Railroad, 55 Mo. 580 ; Schooling r>. Railroad, 75 Mo. 518 ; Harlan v. Railroad, 18 Mo.

Andrew Ellison, Judge. Statement of case by the court. In 1875 the plaintiff made application, in writing, to the defendant for a policy of insurance on his life in the sum of one thousand dollars. The application was made at Kirksville, Missouri, to a general agent of the defendant, one Woodfin.

Turner A. Gill, Judge. Tke case and. facts are stated in the opinion of the court. I. The court erred in striking the plea of contributory negligence out of the answer. The defendant’s liability was for “double the amount of all damages occasioned by its failure; ” not for double the amount of all damages occasioned by combined negligence of plaintiff and defendant. Section 809, Revised Statutes; Curry v. Railroad, 43 Wis. 665; Field v. Railroad, 8 Am. & Eng. Ry.

Elijah Robinson, Judge., Statement of case by the court. This is an action to recover damages for personal injury.

M. Gr. McGtEEGoe, Judge. Motion for rehearing denied. The case and facts are stated in the opinion of the court. Held: that there was no misdescription of the situs of the property. In Qriswold v. Insurance Co. (70 Mo. 657), it was held that the removal of a building one hundred and fifty feet would not prevent a recovery unless it increased the risk, and this was a question for the jury. Same case says the house was removed two hundred feet. 1 Mo.

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

<p>1. Practice — Jurisdiction—Defective Service Cured — Appeals— Justices. — An appeal, by the defendant, from a judgment of a justice, in a cause in which the service of summons is insufficient, and in which the defendant does not appear, cures the defect and gives the circuit court jurisdiction.</p> <p>3.--Amendments. — On appeal from the judgment of a justice . of the peace, an amendment which merely amplifies the plaintiff ’s statement, without changing the cause of action, is properly allowed.</p>

<p>Appeal from the Phelps County Circuit Court, C. C. Bland, Judge.</p>

Louis Circuit Court, Amos M. Thayer, Judge. The refusal of the defendant to give the number of the machine is fatal to her recovery. Charles v. Patch, 87 Mo. 462-3. The plaintiff was not bound to return the identical machine.

<p>Jurisdiction, Appellate — Constitutional Question. — The Supreme Court has exclusive appellate jurisdiction of a cause in which the only question presented is whether certain taxes assessed are in excess of the limitation prescribed in the constitution.</p>

E. Turner, Judge. The sale was void because made by one who was not evenj a de-facto officer. Douglass v. WicJcwire, 19 Conn. 489; Faeey v. Fuller, 13 Mich. 527; Bean v. Thompson, 19 N. H. 290; Commonwealth v. MeComb, 56 Pa. St. 436. It does not appear that the justice-acquired jurisdiction by service or by appearance. The State v. Metzger, 26 Mo. 65 ; Bersch r>. Schneider, 27 Mo. 101. The constable was a de-facto officer. Plymouth v. Painter, 44 Am.

Louis Circuit Court, Geoege W. Lubke, Judge. That said sewer was “ made to connect with a public sewer or a natural course of drainage,” was a constitutive fact, and also that the ordinance (on which this whole proceeding rests) was passed on the recommendation of the board of public improvements, or on the petition of a majority of the property holders resident in said sewer district.

Louis Circuit Court, Daniel Dillon, Judge. The servant takes the risk of the negligence, recklessness, or misconduct of his fellow-servant, the- use of the material and implements furnished, and their failure from latent defects not revealed by practical tests, and from deterioration by the usual wear and tear. Laning v. Railroad, 49 N. Y. 521; 2 Thompson on Negligence, 940'; Warner v. Railroad, 39 N. Y. 469.

<p>Appeal from the St. Louis Circuit Court, Gí-eorge W. Lubke, Judge.</p> <p>Sections eight and nine, Revised Statutes, being general, must yield to the particular provisions of section1 306. The State v. Qlar7c, 54 Mo. 17 ; T7ie State n. Debar, 58 Mo. 395; Lamb v. Helm, 56 Mo. 433; T7ie State «. Wolf, 10 Mo. App. 99; Sprecldes v. Public Adrrúr, 1 Lem. 476. The history of these sections shows that the public administrator has exclusive right to administer in the cases set forth in section 306. Rev. Stat., sect. 3160 ^ Session Acts 1868, p. 3; Sedgwick on Construction, p. 194. The public policy underlying public administration requires the authority of the public administrator to be exclusive in the class of cases indicated by section 306. Schouler’s Ex’rs and Adm’rs, sect. 116, p. 148; Estate of Hyde, 64 Cal. 228; Estate of Morgan, 53 Cal. 244; Estate of Kelly, 57 Cal. 81; Matter of Blank, 2' Redf. 443; Public Administrator v. Watts, 1 Paige, 382 ;. Ex parte Hannover, 3 Redf. 91; In re Root, 1 Redf. 257; Matter of Estate of Goddard, 30 Hun, 401; Matter of Estate of Goddard, 94 N. Y. 544; McCabe v. Lewis,. 76 Mo. 296.</p>

E. Turner, Judge. In order that the property sold shall be subject to execution the judgment must be obtained by the vendor,, and must be founded on the contract of sale of the property. Rev. Stat., sect. 2353 ; Freeman, Ex’rs, sect. 217 ;. Buckingham v. Nelson, 42 Miss. 487; Harley v. Davis, 16 Minn. 487; Davis v. Peabody, 10 Barb. 91; Smith v.. Slade, 57 Barb. 637. By taking a note for his debt, Parren did not waive any of the securities which attached to the debt.

Noah M. Giyan, Judge. The case and facts are stated in the opinion of the court. I. There was no evidence, on the trial of the motion to dissolve, that the separate security for the Reed note was not sufficient to pay it off, and the finding to that effect, and the judgment dissolving the injunction, were erroneous. II.

<p>Case Adjudged — Nolan v. Johns Affirmed. — An examination of the evidence in this cause has led the court into an acquiescence in the finding of the trial court, dissolving the injunction. But under the view takeninthe case of Nolanv. Johns(ante, p. 502), the judgment in this case, having been rendered summarily against the sureties] and that, too, before their liability had accrued, it will, as to the damages, be reversed and the cause remanded.</p>

Elijah Robinson, Judge. The case is stated in the opinion. I. Defendants’ answer contains both a plea to the jurisdiction over the person of defendant Sallee and an answer to the merits of plaintiff’s petition.

Elijah Robinson, Judge. Statement of case by tbe court. This was an action of replevin, begun before a justice of the peace, for the recovery of a horse. The plaintiff based his title on a chattel mortgage, executed by the defendant to secure the payment of a note for ninety dollars made by the defendant and payable to the plaintiff. The case was tried before the justice, and an appeal was taken from the judgment rendered by him to the circuit court.

1)unn, Judge. The case and facts are stated in the opinion of the court. I.' The only question in this case is whether the ■ order of the court, to the sheriff, under section 424, Revised Statutes, is a justification to the defendant, in ■selling Maggie Yaughn’s property. He admits that it was her property, and that they notified him of it before the property was sold.

E. L. Ed wands, Judge. The case is stated in the opinion. I. The judgment of the circuit court should be reversed, because it erroneously held that appellants were privies to the interplea proceedings in the circuit court of Moniteau county, and that, therefore, the question and issues tried in that case were res judicata as to this case. There was no privity between appellants and Hazell.

Elijah Robinson, Judge. The case is stated in the opinion. I. The only question before the court is, whether the evidence introduced by plaintiff entitled it to have its case submitted to the jury. If the plaintiff’s evidence has no tendency,- whatever, to prove the facts necessary to recovery, the court may take the case from the jury. Boland v. Railroad, 36 Mo. 484.

John P. Strother, Judge. The case is stated in the opinion. I. The court erred in permitting plaintiff to introduce in evidence his ledger, or to testify therefrom. The entries were made therein long after the alleged transaction. The original entry-book, containing entries made at the time of the alleged transaction, was in the possession and under the control of plaintiff, and he refused to obey a subpoena duces to produce the same. Briggs v. Henderson, 49 Mo. 531.

G-eo. W. Dunn, Judge The case is stated in the opinion. I. The court found the defendant guilty after •giving the following declaration of law: “If the court, sitting as a jury, believe from the evidence that the road which defendant is charged with obstructing was established in 1855, upon the petition of George B. White and others, which called for the line between Susan Craig and George B. White, and that, in pursuance of said petition, the county court of Clinton county…

Chaeles W. Sloan, Judge. The case and facts are stated in the opinion of the court. I. The mortgage -offered in evidence was duly executed, acknowledged, and recorded, and should have been admitted in evidence. 1 Rev. Stat., sects. 2503, 680, 681, 676; Bevans v. Bolton, 31 Mo. 437; Jones on Chattel Mortgages, sects. 250-261.

E. M. Hughes, Judge. Statement of case by the court. This action was instituted in a justice’s court. It was founded on an account filed with the justice, embracing various items of the nature of merchandise, or drugs. Among these items is the following: “ To 50 bbls. water out of well, $25.00.’’ As the balance of the account was admitted to have-been paid, the whole controversy is ,as to the item for water.

M. G-. McGregor, Judge. Motion for rehearing denied. The case and facts are stated in the opinion of the court. I. If a partnership existed, it was a non-trading partnership. Deardorf’ s Admir v. Thacher ei at., 78 Mo. 128 ; Smith v. Sloan, 19 Am. Eep. 757. II.

DeWitt C. Allen, Special Judge. Statement of case by the court. This was a common-law action, for damages, on account of the killing of plaintiff5 s steer by the negligence of defendant’s agents and servants in operating one of its trains of cars.

Eichard Field, Judge. The case is stated in the opinion. I. This was not a public road, nor a public road-crossing. Banks v. Railroad, 69 Mo. 222; Hodges v. Railroad, 71 Mo. 37; Wharton’s Law Dictionary, title, “Highway.” II. In the country it is only at public crossings that, railroads are exempt from the duty of fencing. Morris v. Railroad, 79 Mo. 367.

Richard Field, Judge. Tlie case and facts are stated in the opinion of the court. I. Under a proper construction of the statute the liability of the defendant should have been confined to damages on account of disease communicated along the line of its road and upon its own premises. Rev. Stat. sects. 4858, 4859 ; Laws 1881, page 40. Along the line of transportation is the only part of section 4859, as amended, applicable to railroad companies.

Elijah Robinson, Judge. I. The allowance of alimony in 'gross is the only proper order under the peculiar circumstances of this -case. Rev: Stat., sect. 2180; Golding v. Golding, 74 Mo. 123; Crews v. Mooney, 74 Mo. 26. II. Alimony in gross will end the controversy.; it will end the litigation. Such a decree for alimony in gross will not be subject to alteration in the future and defendant will be freed from efforts in that direction by plaintiff if alimony is so granted.

James M. Sandusky, Judge. The case and facts are stated in the opinion of the court. I. The defendant’s instruction should have been given, because (1) the evidence does not show that the aninial was injured or killed in Shoal township, or in an adjoining township. Mitchell v. Railroad, 82 Mo. 106 ; Vaughn v. Railroad, 15 Mo. App. 597 ; Backenstoe v. Railroad, 86 Mo. 492; King v. Railroad, 90 Mo. 520. The point at which the injury occurs gives jurisdiction.

Charles W. Sloan, Judge. The case and facts are stated in the opinion of the court. I. The petition in this case seeks to state a cause of action at common law, and not one under the statute. Meyer v. Railroad, 64 Mo. 542-44.' II.

John E. Ryland, Judge. The case is stated in the opinion of the court. I. The fact that the road was' opened by order of the county court, and traveled by the public for ten years, does not make it a public road. See Revised Statutes, section 6987, which requires a plat to be made and filed with the county clerk. II.

John E. Ryland, Judge. The case is stated in the opinion. I. Appellant contends that the indictment charges two offences in the same count; one for selling intoxicating liquors as druggists and pharmacists without a prescription, and second for selling intoxicating liquors without a license, and for this reason the motion in arrest should have been sustained. II.

E. L. Edwards, Judge. The case is stated in the opinion. I. The affidavit is made before W. H. Lusk, circuit court, by C. W. Wallendorf, D. C. There is no such officer known as “ circuit court,” and hence the information is not sworn to as required by law, and the motion to quash it should have been sustained. Sect. 1762, Rev. Stat.

Louis Circuit Court, Daniel Dillon, Judge. The proposed corporation is not a religious corporation within the purview of the constitution. Baptist Church v. Wither ell, 3 Paige, 301; Weld ¶. May, 9 Cush. 188; Ex parte Andrews, 18 Cal. 684. The corporation is not one for pecuniary profit. Sheren n. Mendenhall, 23 Minn. 92; Gooch v. Association, 109 Mass. 567; McDonald v. Hospital, 120 Mass. 432 ; American Asylum *. Banlc, 10 Am. Dec. 112.

Louis Circuit Court, Geobge W. Lubke, Judge. The attempted assignment of Murphy to Keane being for part only of the fund, and not assented to by the city, was void at law and in equity. j Burnett v. Crandell, 63 Mo. 410. And this point can be taken by any one interested in the fund. Bank v. Coates, 79 Mo. 169 ; Dickinson v. Coates, 79 Mo. 250.

<p>1. Nuisance — Brothels—Contracts, Illegal — A brothel-is a nuisanee at common law, and a contract to rent a house to be used as a brothel is illegal, irrespective of the statute,</p> <p>~Z. -- Evidence. — The fact of the existence of the brothel being established, the reputation of the house as a brothel is admissible to charge persons with knowledge of its existence.</p> <p>■'6. -Contracts — Express and Implied. — Recovery may be had on an implied contract, for the reasonable value of the use and occupation let under an express contract which fails for informality, but not where it fails for illegality.</p>

<p>1. Bills of Exception — Appellate Practice — Instructions. Where the‘record recites evidence in detail and then says that there was other evidence tending to support the instructions, the only question arising on the instructions is, whether they correctly declare the law as applied to the hypothetical facts stated in them.</p> <p>2. Contracts — Express and Implied — Building.—Generally there can be no recovery on an implied contract contrary to the terms of an express contract.</p> <p>3. Practice — Law Points, Raised How. — Law points arising upon the evidence must be saved by the asking of appropriate instructions.</p>

Louis Circuit Court, Daniel Dillon, Judge. The consideration was sufficient and there was no rescission of the contract. Bean ro. Brookmire, 2 Dill. 108; Miller v. Goldsmith, 47 Wis. 573. There was no plea of want of consideration, or other matter constituting a defence. Edgell n. Sicker son, 20 Mo. 494; Fox v. Webster, 46 Mo. 131.; The State ex rel. v. Williams, 47 Mo. 463; Voss v. McGuire, 18 Mo. App. 477.

Louis Circuit Court, Shepard Barclay, Judge. Where an act may be performed in two ways, one of which may result in injury to others who may be affected, and the other is free from such liability, the person performing the act must take that course which will prevent the injury. International Bank v. German Bank, 71 Mo. 183, 197; Heaven v. Fender, 11 Q. B. Div. 503; Cooley on Torts, 630 ; Brown v. Railroad, 49 Mich. 153.

Louis Circuit Court, Leroy B. 'Valliant, Judge. 'The court only had power to allow the officer a reasonable compensation ¡for his trouble 'and expense in keeping the property. See section 426, Attachment Cases. As to all other costs, the sheriff can only get such fees and charges as are fixed by section 5606, and the statute must be strictly construed. Shed v. Railroad, 67 Mo. 687; In Matter of Murphy, 22 Mo. App. 476.

John P. Strother, Judge. The case is stated in the opinion. I. The court below erred in giving the instructions numbered one, two, three, and four, on the part of inter-pleader, said Teichman Commission Company, Said instruction numbered one is erroneous in assuming that L. W. Wernwag was the agent of said interpleader, and studiously avoids submitting to the jury the question on the evidence as to whether said Wernwag was such agent of interpleader.