Volume 273 — Missouri Reports

<p>1. NEW TRIAL: Reasons Not Entered of Record. The reasons assigned by the trial court for granting a new trial, if not entered of record as required by the statute, cannot be preserved for review in the appellate court by the bill of exceptions. But if contained in the hill they may be considered as throwing light upon the view the court took of the case during the progress of the trial.</p> <p>2. NEGLIGENCE: Automobile: Liability of Father For Son’s Negligence. Where no relationship of master and servant or principal and agent existed, a father, who purchased an automobile and maintained it as a family vehicle, with restricted uses, cannot be held liable in damages for personal injuries to a traveler on a public highway caused by the negligent driving of his adult son, a member of his family, who, having been cautioned not to use it without having first obtained permission, in violation of said injunction, used it upon an independent pleasure trip of his own, accompanied by his friends but by no other member of the father’s family, although the permission had uniformly been granted to the son to use it whenever he requested it. It cannot be held that a son, in pursuit of his own pleasure, with an automobile owned by the father, was engaged in business for the father.</p> <p>3. -: -: -: Presumption of Agency Arising From Permission. The fact that the father owned the automobile and that it was with his consent being driven by his son at the time of the injury to another due to the son’s negligent driving, raises no presumption that the son was acting within the scope of his authority or that he was acting as the father’s agent and servant. Besides, such a rule would be to base one presumption upon another, namely, that the son was the agent of the father and that as such agent he was acting within the scope of his authority, whereas the law requires a presumption tó be based upon- a fact.</p> <p>4. AUTOMOBILE ACT OF 1911: Stopping for Horses: Highest Degree of Care: Constitutional. Sections 8 and 9 of the Act of 1911, Laws 1911, page 322, requiring the operator of an automobile upon a public highway, to stop the same when signaled so to do by a driver of a vehicle drawn by horses, and to exercise the highest degree of care, are not unconstitutional.</p> <p>5. VERDICT: Indefinite: Bad Punctuation: Affidavits. A verdict reading: “We, the jury, find the issues in favor of plaintiff and against both defendants and assess, her damages at the sum of $6,500, Six Thousand $5.00 Dollars,” supported by the affidavits of six of the jurors stating that the verdict agreed upon was for the sum of $6,500, such affidavits being always competent, is not so uncertain and indefinite that a valid judgment cannot be rendered thereon for $6,500. Inaccuracy of punctuation does not destroy a verdict which is responsive to the issues.</p> <p>6. -: Excessive: $6,500. A verdict of $6,500 for a widow, suing for damages for the negligent killing of her husband, who was fifty-seven years of age, with one leg off six inches below the knee and one arm somewhat smaller than the other, but who supported himself, wife and eight children, was not excessive.</p>

<p>1. CHARTER OE RAILROAD: Interpretation. The charter of a railroad, organized for the purpose of constructing a line of railroad between a named point in Iowa and a named point in Missouri, must be construed with reference to tbe existing conditions to wbicb it referred, and its words will not be strained to fit an absurdity. Where the charter said “the railroad is to extend” from Keokuk, Iowa, to St. Louis, Missouri, “it being intended to purchase the railway” of another company “between Keokuk, Iowa, and Dardenne, Missouri, and construct and complete the same to St. Louis, Missouri,” it will not be held that the company had no power to construct a railroad between Keokuk and Dardenne; the company’s charter power to construct a railroad cannot be confined to ilie short distance between Dardenne and St. Louis.</p> <p>2. EMINENT DOMAIN: Power of Legislature and Courts. The power to take the property of the individual for public uses is inherent in the government which creates and protects by law the private ’ “ right, and resides in the Legislature, and may be exercised through such agencies as it may create, subject only to the restrictions of the Constitution, which limits the legislative discretion by declaring that whether the contemplated use be really public shall be a judicial question.</p> <p>3. -: Railroad: Necessity. A chartered railroad, including its construction, maintenance and operation, is a public use, and that being true the question for determination is whether the power of eminent domain conferred upon the company by the statute includes the right to condemn the particular land for the purpose stated in its petition. No fraud being alleged, the necessity for the taking is to be determined by the railroad company, and not by the courts.</p> <p>4. -:-: Map and Profile. The General Statutes of 1865 did not require the filing by a railroad company of" a map of its right of way, but only a map of “the route intended to be adopted,” and the statute of 1877 by using the word “roadbed” excludes the idea that the map should include the right of way; and the fact that the railroad company has for more than thirty years been operating its trains along a track within a few feet of the land sought to be condemned, and forming a part of a continuous line, demonstrates, without the aid of a profile map then filed, that the road had been located; and the fact that the map was not filed until after the work of construction was begun in the county does not affect the power of eminent domain conferred on the company by the statutes.</p> <p>5. -: -: -: Joint Use of Connecting Track: Right to • Construct After Expiration of Contract. The profile map showed the route intended to be adopted by plaintiff company, and also a gap of three-quarters of a mile near a bridge that was to be connected by the track of another railroad, and showed that plaintiff’s track, together with this link supplied by the other road, constituted a continuous line of 165 miles. The statute then and now in force authorized railroads to “contract with each other in any manner not inconsistent with the scope, object and purpose of their- creation and management,” and the plaintiff contracted with the other company for the joint use of this “gap” track, by which it became available for all purposes for which plaintiff was incorporated, and this .joint use continued for thirty years, and now at the point of this gap plaintiff wishes to condemn a narrow strip along the right of way of the other road and thus supply the link in its track. Another statute (Sec. 3212, R. S. 1909) provides that if a railway company “shall not finish its road and put it in operation in ten years from the filing of its articles of association, its corporate existence and powers shall cease.” Held, that plaintiff’s line at the point of the gap was, within the meaning of the statute, finished and in operation within the ten years allowed by it, and that said profile map was sufficient for the purpose of this condemnation proceeding.</p> <p>6. -: -: Joint Use of Connecting Track: Abandonment and Election: Future Power to Condemn. An arrangement between the plaintiff railroad company and another company by which for thirty years both companies used a small part of the latter’s track, which formed a connecting link in plaintiff’s track and thereby constituted it a continuous line, was not an abandonment by the plaintiff of its right, after the' arrangement ceased, to condemn land at that point and thus supply the link in its track, nor did it elect to stand forever upon the rights acquired by the arrangement, though its profile map filed showed this portion of the other company’s track to constitute a link in its track. The statute does not contain any limitation of time for the condemning by a railroad company of land made necessary by any condition relating to construction, protection or improvement, but on the contrary requires it to exercise the right whenever the public service requires it.</p>

<p>1. APPELLATE JURISDICTION: Revenue Laws. A mandamus proceeding, brought at the relation of a school district against the directors of another to determine''Whether the former is entitled to share in the state school funds, involves a construction of the revenue laws, and consequently appellate jurisdiction is in the Supreme Court.</p> <p>2. NEWLY ORGANIZED SCHOOL DISTRICT: Right to Share in State Funds. The Constitution says that “no school district, in which a free public school has not been maintained at least three months during the year for which the distribution is made, shall be entitled to receive any portion” of the income of the funds provided by the State for the support of free public schools; and the Act of 1911, Laws 1911, p. 400, says that no district which shall fail to make the report to the county clerk required by law, or that has failed to maintain a school for the time required, “shall be entitled to any portion of the public school fund for that year.” Held, that a school district, which was organized at the April meeting, by the division of an existing district, is not entitled to any portion of the state funds apportioned to the county by the State Superintendent on August 30th of the same year, but all the remaining part of the district so divided is entitled to the same portion of said fund as it would have been had not a part of its territory been set off and organized into said other district.</p> <p>3. -: -: Equitable Principles: Judicial Legislation. However fair it would seem that á proportionate part of the income from the state school funds should follow the children, on whose account it was apportioned, into a newly organized school district, the fact remains that the Constitution and statute forbid it, and the courts cannot permit it without indulging in judicial legislation.</p>

<p>1. JURISDICTION: Divorce: Non-residence of Plaintiff: Motion to Set Aside Decree: Presumption. A plaintiff in a divorce suit must be a resident of this State in order to be entitled to sue in the courts of this State; and it will be presumed, upon the hearing of a motion to set aside a decree, filed by defendant during the same term the decree was rendered, that sufficient evidence was introduced by plaintiff to show he was a resident of this State, since-'the court is one of general jurisdiction, proceeding according to the course of the common law, and all the evidence and proceedings therein were still in the breast of the court when the motion to set aside was ruled.</p> <p>2.--: -: -:■ -: Burden: Substantial Evidence. The burden is on defendant, who has filed a motion to set aside a decree granting to plaintiff a divorce, to show that plaintiff at the time the decree was rendered was not a resident of this State; and the question being one of fact, a finding by the court that plaintiff was a resident is conclusive upon defendant upon a writ of error, unless the evidence fails to justify such finding.</p> <p>3. DIVORCE: Timely Writ of Error: Within Sixty Days. Neither the Supreme Court nor the Court of Appeals, in view of Section 2380, Revised Statutes 1909, can entertain a writ of error sued out of the one or the other to have reviewed the order of judgment of a circuit court overruling a motion to set aside a decree of divorce, filed during the term at which the decree was rendered, unless said writ has been issued within sixty days after the order was made or judgment was rendered. So that where a decree of divorce was rendered, upon constructive notice and default, in favor of plaintiff, and during the term defendant filed her motion to set aside the decree, charging that plaintiff was not a resident of this State, which was by the court overruled at a succeeding term, from which order defendant took an appeal to the Court of Appeals and which she later dismissed, a writ of error sued out of said court eight or nine months, after her motion had been overruled and twenty months after the decree had been rendered, gave to said court no jurisdiction to reverse, amend or modify the order or judgment. And this ruling is not contrary to Dorrance v. Dorrance, 242 Mo. 625, deciding that an independent and direct suit in equity will lie to set aside and ,nullify a decree of divorce obtained by fraud, nor was Section 2380 held in that case to be unconstitutional.</p>

— Ñon. B. G. Thurman Judge. (1) The rule in Missouri is that tangible personal property is assessable and taxable where it is actually located, whether that situs be the domicile of the owner or elsewhere, unless changed by statute. Plattsburg v. Clay, 67 Mo.

— Hon. Arch A. Johnson, Judge. (1) Relator and respondents agree that the history of the passage of the Act of 1915 shows that it was the intention of the Legislature to enact the second provision found in that hill. Ex parte Helton, 117 Mo. App. 609. (2) It was obviously the intention of the Legislature in 1915 to provide for the payment to the State and county a part of the money derived from dramshop licenses. That intent should be made effective.

<p>1. TB.TJST: Intent: Deed by Entirety: Purchased With Wife’s Money: Burden. Equity neither creates nor enforces a trust contrary to the intent of parties capable of acting for themselves. Where a wife closed the negotiations for the purchase of property, consulted lawyers as to the best method of securing her husband in its enjoyment in case of her death, after the matter was explained deliberately chose to have it conveyed to her and him jointly in preference to taking the whole title in herself and providing for him by will, then paid her own money and accepted the deed by the entirety in the form in which her attorney had prepared it, there was no intention on her part of placing the title in him as trustee for her heirs, and no trust in their favor was created. Such being the facts, it is not necessary to decide whether the burden is on the husband to show that the wife’s intent was that a trust was not to arise in favor of her heirs, since they conclusively establish a contrary intent.</p> <p>2. -: -: -: -: Husband as Agent. The doctrine of those cases which hold that the wife’s money in the husband’s hands is a trust fund and the property in which he invests it becomes trust property, has no application to the use by the wife of her own money in the purchase of property which she of her own choice directed her attorney to cause to be conveyed to her and her husband jointly.</p> <p>3. -: -: Deed by Entirety in Partition. Those cases holding that where estate lands belonging to the wife’s . ancestor are divided among the heirs in partition proceedings and the allotment to the wife is deeded to her husband or to him and her jointly he takes the title in trust for her or her heirs, have no application to a conveyance made. to the husband and wife, in pursuance to her direction to her attorney to have it so made, and the payment by her of the consideration.</p> <p>4. -: Evidence of Intent. A statement by the wife that she wanted her husband to have her property after her death, made to her attorney whom she directed to draw the deed, is not evidence that by a deed conveying property to her and him jointly she intended to create a trust, but only evidenciary of the state of mind which led her to investigate the relative effect and availability of different methods of ac'complishing her purpose.</p>

Habeas Corpus. (1) In habeas corpus, when the petitioners seek release from punishment for an alleged criminal contempt, this court will go behind the return, commitment and judgment, and ascertain the facts, and determine whether or not the facts warrant the judgment.' Ex parte Creasy, 243 Mo. 679; Ex parte O’Brien, 127 Mo. 477.

<p>APPELLATE JURISDICTION: Revenue Law: Vacation of City Block. Where the only point to be decided is whether a block, which had been vacated in the manner provided by statute, should be described in the petition in the action for city taxes and in the tax bill as designated in the original plat, notwithstanding the vacating proceeding, or as unplatted grounds by metes and bounds, the revenue law or title to real estate is not involved, and, therefore, as the amount of taxes sued for is only $31.86, the appellate jurisdiction is in the Court of Appeals.</p>

<p>1. ADMINISTRATOR: Appointment: Controlled by Mandamus. A supervising court has power by mandamus to compel a probate court to appoint an administrator in accordance with the specific provisions of the statutes.</p> <p>2. -: Renunciation: De Bonis Non. Where the decedent left no wife or children, but a brother and sister, and the sister filed a renunciation of her right to administer, together with, her request that letters of administration be issued to her brother, and that was done, and he died before the estate was fully administered, such renunciation did not operate as a waiver of her right to be appointed administratrix de bonis non of decedent’s estate, nor give the public administrator power to file notice that he had taken charge of the estate, but under the statute she had the right to administer, and upon the refusal of the probate court, upon her timely application, to appoint her, mandamus is appropriate to compel her appointment as administratrix de bonis non.</p> <p>3. -: -: Extent of Waiver. One cannot waive a right not at the time in existence. Waiver can never be effective except by intention and with knowledge of the existence of the right or thing intended to be relinquished. A renunciation by a sister in favor of her brother of her right to administer on a deceased brother’s estate did not operate as a waiver of her right, upon the death of the brother so appointed administrator, to be appointed administratrix de bonis non of said decedent’s estate, for her right to be so appointed was not in existence when she relinquished her right to administer in favor of the surviving brother.</p> <p>4. -: Public Administrator: Notice Superseded: Discretion. Whatever provisional power resulted to the public administrator from a filing by him of a notice, immediately after an administrator’s death, that he had taken charge of decedent’s estate, is superseded by the timely filing by a sister entitled to administer of an application to be appointed administratrix de honis non; and since the duty of the probate court to appoint her is statutory, the judge was not called upon to determine the effect of a previous renunciation of her right to administer filed after decedent’s death.</p>

<p>1. CERTIORARI: Conflict in Opinions: Former Decision of Coutt of Appeals. A prior decision rendered by another court of appeals is in no wise binding or pursuasive upon the Supreme Court in determining whether the opinion of the court of appeals in the case in hand is in conflict with its own prior rulings.</p> <p>2. -: -: Slander: Distinguished from Libel. There is a well-recognized distinction between libel and slander, in their civil, as well as their criminal aspects. Therefore, in certiorari to a court of appeals, based upon a charge that its opinion in a civil action for slander is contrary to -previous rulings of the Supreme Court, rulings of the latter court in libel cases are of no. concern in determining the question of conflict.</p> <p>3. -: -: -: Instruction. If the spoken words are slanderous per se and when taken alone are actionable, an in-' struction which tells the jury to find for plaintiff if they find defendant spoke said words of and concerning plaintiff in the presence and hearing of others, is not erroneous; but if they are of doubtful and ambiguous import, an innuendo is a necessary part of the petition, and an instruction which fails to require the jury to find they were spoken with the intended meaning and purpose alleged in the innuendo is erroneous.</p> <p>4. -:--:-: Ambiguous Words Omitted from Instruction. The petition charged that defendant, in whose employ plaintiff had formerly been as a manager of a certain printing business, said of plaintiff, “He has robbed me of hundreds of dollars and if you intend, to keep a crook in your employ you won’t get any more work of mine,” meaning thereby “that plaintiff was a thief and had wrongfully taken and stolen money from defendant, and meaning thereby that plaintiff was guilty of the heinous crime of larceny.” Held, that the words do not charge the felonious taking of the personal property of defendant, from his person, or in his presence, against his will, or by putting him in fear of immediate injury to his person, but they convey the thought of obtaining money by overreaching, or by chicanery or cheating, or by dishonest and fraudulent practices, and cannot therefore be treated as slanderous per se, and the innuendo was not surplusage but its allegations necessary, and could not be abandoned in the instructions, and an instruction telling the jury that if they found the defendant spoke the words of and concerning plaintiff they should find for him, omitted a necessary element, and the Court of Appeals did not err in so holding, and its ruling was not contrary to Callahan v. Ingram, 122 Mo. 355.</p>

<p>Appeal from Clay Circuit Court. — Hon. Franh P. Divelbiss, Judge.</p> <p>(1) An offer met by a counter offer is in law rejected in tolo and there must be evidence that such offer was renewed and accepted before Its terms became binding on the parties making it as a contract. Bronson v. Implement Co., 135 Mo. App. 483; Wire Mfg. Co. v. Broderick, 12 Mo. App- 378; Shickle v. Iron Co., 84 Mo. 161; Cangos v. Mfg. Co., 37 Mo. App. 297; Tufts v. L. S. Sams & Sons, 47 Mo. App. 487; Railway v. Joseph Joseph & Bros. Co., 160 Mo. App. 174; McLean v. G-yen Assn., 61 Mo. App. 55; Mfg. Co. v. Broderick, 61 Mo. App. 378 (2) Where an offer is made, and rejected by the parties to whom it is made, then a performance or partial performance of the thing under negotiation, by either party, does not show either a renewal of the terms of the offer or an acceptance thereof by the party to whom it was made. Sterling & Sons v.Watson & Bennett Co., 159 N. W. (Mich.) 381; Frank v. McGilvray, 107 N. W. (Mich.) 886; Bowen v. Hart, 101 Fed. 376; Davis v. Thomas, 64 Pac. (Colo.) 187; Theuber v. Smith, 64 Atl. (R. I.) 790; Treat v. Ullman, 69 N. Y. S. 974; Sibley Glass Works v. A. S. Barnes Co., 33 N. Y. S. 508, 86 Hun, 374; Jumes v. Iron Co., 53 Me. 20; Van Valkenburg v„ Rogers, 18 Mich. 180. (3) It is elementary that a plaintiff cannot- maintain trover unless he has the right of possession. He may have the legal title to the property; but if the defendant is in the rightful possession of it, trover will not lie. Therefore a petition which. fails to state directly or inferentially that plaintiff is entitled to the possession of the property sued for states no cause of action. We concede that if the petition stated a cause of action defectively, failure to demur or to object to the introduction of testimony would waive the defect. But if the petition states no cause of action at all, as in the case at bar, the defect can be taken advantage of, even in this court, for the first time. 38 Cyc. 2032.</p> <p>(1) The court below was correct in its finding for plaintiff; thereby recognizing that the contract entered into between plaintiff and appellant was severable, and, although the contract of sale was not fully completed on the part of plaintiff, subsequent correspondence confirmed the contract in so far as it was applicable to the machine, the judgment for the value of which was found for plaintiff, and as to the terms of payment. 35 Cyc. 5; Mulchaey v. Dieudenne, 103 Minn. 352; Richards v. Shaw, 67 111. 222; Roberts v. Beatty, 2 Penr. & W. (Pa.) 63; Sanders v. Short, 86 Fed. 225, 30 C. C. A. 462. (2) Appellant made full acceptance of such machinery as was actually shipped as a part of the contract by its use of the same¡ 35 Cyc. 2; Mfg. Co. v. Pastor, 97 N. W. (Wis.) 904; Glass Co. .v. Friedlander, 84 Wis. 53. (3) The court below found, by its judgment, in effect, that plaintiff was entitled to the possession of the machine sued for; and any objection to the failure of the petition to so state should have been raised by demurrer before defendant went into trial, or called to the attention of the court by the motion in arrest of judgment. It is here too late to raise the point for the first time. Merrill v. Mason, 159 Mo. App. 605. (4) This case was cried and was acted upon at all times upon the same theory. There was no change in the attitude at any time and both parties treated the matter as though the question now raised by appellant was in the case throughout the course of the trial. 261 Mo. 558.</p>

<p>1. DOWER: Widow of Remainderman Unseized. The widow of a remainderman, who died childless while the life tenant was in possession, has no dower in his remainder. A widow, under Sec. 345, R. S. 1909, has dow.er only in lands of which her husband "was seized” at the time of his death. [Following Van Arb v. Thomas, 163 Mo. 33.]</p> <p>2. -: -: Election: Sec. 351, E. S. 1909. A widow cannot elect to take under Section 351, Revised Statutes 1909, unless she has dower under Section 345. The word “absolutely” used in Section 351, declaring that if the.husband die without descendants his widow shall take one-half the real and personal estate “belonging to the husband at the time of his death” subject to debts, does not mean that she is given dower by that section independently of any other statutory provision, but it indicates the character of the estate she takes in case she is entitled to dower and elects to take under that section. That section does not mean that she has dower simply because she elects to take it; it means that she may elect to take a certain portion in case she has dower under Section 345, but she can have dower under no section unless her husband “was seized” at the time of his death. The two sections must be read together; the widow cannot have dower under both; she can elect to take under Section 351 only when she has dower under Section 345.</p>

<p>1. ESTATE BY ENTIRETY. The husband and wife take and hold an estate by the entirety, not as separate individuals and by moeities, but as one person, each holding the whole of it. They are neither joint tenants nor tenants in common; but for tlje purpose of holding the title, they are h unit, and upon the death of either the entire estate belongs to the survivor. At no time during their lives is it divisible, or subject to partition or sale for the sole debts of one of them, nor can either sell any interest in it without the consent and joint act of the other.</p> <p>2. JUS UXORIS: Husband’s Possession: Married Woman’s Act. The husband, jure uxoris, prior to the Married Woman’s Act of 1889, had the right to the possession of the wife’s lands, including lands held by him and her as estates by the entirety, but those acts took that interest away from him, but did not destroy estates by the entirety. They did not destroy the unity of husband and wife, which is the basis of estates by the entirety, but they were meant to destroy the unity of unequals, which was the basis of the jus mariti, by which the husband, as a marital right, was entitled to the possession and enjoyment of his wife’s lands, unless she had a separate estate therein.</p> <p>3. ESTATE BY ENTIRETY: Sale Under Execution. A judgment against the husband alone, in which the wife is not included, cannot in any way affect an estate by the entirety held by them in land and created since the Married Woman’s Acts became effective, nor can an execution thereon affect any supposed separate interest of the husband in the land, for he has no separate interest. The husband, during their joint lives, has no interest in land held by him and his wife as tenants by the entirety that can be sold for his sole debts. [Authorities elaborately reviewed, and Hall v. Stephens, 65 Mo. 670, and Bains v. Bullock, 129 Mo. 117, analyzed and distinguished.]</p>

<p>Appeal from Cole Circuit Court.- — No». J. O'. Slate, Judge.</p> <p>(1) The Public' Service Commission was without authority to make an order requiring this appellant to pay a fee for authorizing an issue of bonds to take up other bonds. Laws 1913, sec. 21, p. 567. (2) This appellant’s obligations were not limited to those which it primarily created, but included those which it assumed. Cone v. Wood, 108 Iowa, 266. (3) Statutes generally should be so construed as to give words and phrases their plain and ordinary and usual meaning. R. S. 1909, sec. 8057. (4) A refunding of a debt is merely' a funding anew, and not the creation of a new debt. In re Pounds Estate, 166 Mo. 419; Manly v. Bd. of Commissioners, 46 Colo. 491. (5) A statute relating to fees or costs should be strictly construed. Ford v. Railway, 29 Mo. App. 616; State ex rel. v. Holladay, 67 Mo. 64; State ex rel. v. Gordon, 245 Mo. 28; Shedd v. Railway Co., 67 Mo. 690; State ex rel. v. Wofford, 116 Mo.- 223; Gammon v. Lafayette Co., 76 Mo. 676; Bank v. Refrigerator Co., 236 Mo. 414; State ex rel. v. Brown, 146 Mo. 406; State ex rel. v. Adams, 172 Mo. 7. (6) “Strict construction of a statute” defined. Lagler v. Railways, 42 Ind. App. 592; Moore v. Tel. Co., 164 Mo. App. 165; Priest, v. Capitain, 236 Mo,. 462.</p> <p>(1) The bonds upon which the fee or tax in issue was assessed, are reorganization bonds, not refunding bonds. They are within the general enacting terms of Section 21, but they are not within the proviso. Public Service Commission Act, secs. 21, 57, 62, Laws 1913, p. 567 et seq. (2) The proviso in statutes undertaking to limit general provisions, is to be strictly construed. A party claiming an exemption for his benefit under the terms of the proviso must show a clear right to that exemption. 36 Cyc. 1162 ; Brown v. Patterson, 224 Mo. 639; Lewis’s Sutherland on Statutory Construction (2 Ed.), secs. 351," 352; Ex Parte Lusk, 82 Ala. 519; State v. Telephone Co., 104 Minn. 270; Towson v. Den-son, 74 Ark. 302; Clark’s Appeal, 58 Conn. 207. (3) The rule invoked by appellant, and the cases cited, that statutes authorizing the collection of fees are to be strictly construed, will not apply here. That rule was stated in cases where the officer claimed from the State a fee for his individual benefit, or demanded for his individual benefit by virtue of his official relation to the State, a fee from another. In such cases the strict rule is applied for the benefit and protection of the State: The rule is here sought to be applied adversely, against the State. Ford v. Eailway, 20 Mo. App. 616; State ex rel. v. Holladay, 67 Mo. 64; State ex rel. v. Gordon, 245 Mo. 28; Shedd v. Eailway Co., 67 Mo. 690; State ex rel. v. Wofford, 116 Mo. 223; Gammon v. Lafayette Co., 76 Mo. 676; Bank v. Eefrigerator Co., 236 Mo. 414; State ex rel. v. Brown, 146 Mo. 406; State ex rel. v. Adams, 172 Mo. 7.</p>

<p>1. SEWER: Park: Liable to Residential Use. In determining whether certain special tax bills are legal, for that a park was not included in the sewer district, the court will take the situation as it finds it and treat the whole park area as a park, although the deed of the park tract to the city required two hundred feet around its outer edges to be leased for residence purposes — a condition that has not been complied with in the forty years since the deed was made.</p> <p>2. FINDINGS OF COURT: Immaterial Matter. The findings of the trial court of an immaterial fact does not invalidate its findings of material and relevant facts, provided the facts found are sufficient to support the judgment.</p> <p>3. -: Silence as to Material Issue: Fraudulent Conduct of City in Excluding Park from Sewer District. If a special finding of the trial court is silent as to a material point it is to be deemed a finding against the party who has the,burden of proof. If the court made no finding as to whether the city acted fraudulently, oppressively or arbitrarily in not embracing a public park within the sewer district, that must be regarded as a finding on that point against the owners of land in -the district when they are sued on special tax bills issued to pay for the construction of the sewer and which they charge are void because said park was not included in the district, since the burden was on them to establish the fraudulent conduct of the city.</p> <p>4. SEWER DISTRICT: Exclusion of Park: Illegal and Arbitrary. The exclusion of a city park from the sewer district will not be held to be arbitrary and illegal on its face, if the amount of water that actually gets into the sewers constructed is negligible.</p> <p>5. -: -: -: Natural Drainage. The city in laying out a sewer district has the right to consider the fact that nearly half of a public park front drains away from the street in which the sewer is laid, and that the other half is park grounds which absorb a large portion of the rainfall,. unlike roofs and pavements which discharge all the water into the sewer, and therefore its act in excluding the park- from the sewer district cannot be held to be arbitrary and illegal, as a matter of law.</p>

— Hon. Edgar B. Woolf oik, Judge. (1) The court erred in ruling that the statute permitted thé county court to change the boundaries of the road district as set forth in the original petition, as in .its discretion it might determine to be necessary for the public good, without the filing of any remonstrance or an amended petition; such ruling is opposed to both the express language and spirit of the statute.

<p>1. CONFLICT OF OPINIONS: Corporation’s Negotiable Note: Consideration: Ultra Vires: Buying Its Own Stock: Instruction. A stockholder had agreed with a third party to sell him one hundred shares of the stock of a corporation, and said party by written agreement agreed to pay ten thousand dollars therefor by a certain day. On said day the corporation issued its note for $5000 to said stockholder and attached fifty shares of its stock, received from him, to the note as collateral security, and' he wrote an acknowledgment of “full settlement and satisfaction” on his contract with the third party and surrendered it to him. To an action on the note the corporation’s answer, which was not under oath, pleaded no consideration and ultra vires. The trial court instructed the jury to return a verdict for plaintiff if they found that the corporation executed the note upon the consideration that the stockholder released the third party from his written obligation to purchase and pay for the stock. The Court of Appeals held that the plea of no consideration was well pleaded, and that the instruction was error, since the transaction amounted to nothing less than an attempt by the corporation to purchase its own stock. Held, that said act was clearly ultra vires the corporation; and,</p> <p>a. The Supreme Court has never ruled that “an inconvenience, loss or injury, or the risk of it to the party promised,” is a sufficient consideration for an ultra vires contract; and, hence, the opinion of the Court of Appeals cannot be quashed for failing to so rule.</p> <p>b. Where the instruction authorized plaintiff to recover on a finding of facts which upon their face show the transaction to have been ultra vires the defendant corporation, cases having to do with the rule that new matter, in order to be available as, a’ defense, must be specifically pleaded, have no bearing on the assignment that the opinion of the Court of Appeals holding the instruction bad conflicts with the previous decisions of the Supreme Court, but rather seem to be in harmony with the spirit of previous rulings of said court, which in effect are that one’s recovery cannot be based on grounds which upon their face appear to be illegal.</p> <p>c. If the holding of the Court of Appeals that the consideration mentioned in the instruction was not sufficient for the execution of the ultra vires note of the corporation, he permitted to stand because not in conflict with the previous rulings of' the Supreme Court, then it must follow that the question as to whether or not the contract had been fully performed by said stockholder necessarily drops out of the case.</p> <p>2. -: Raised By Respondent. While it is unusual for both parties in certiorari to claim that the opinion of the' Court of Appeals should be quashed on the ground of conflict, yet when the Supreme Court once obtains jurisdiction of the case for the purpose of determining matters of conflict there is no reason why all matters of conflict, whether they be suggested by relator or respondent or even by the court’s own discovery, should not be determined.</p> <p>3. -: Negotiable Note: Presumption of Consideration: Destruction of Books. The ruling of the Court of Appeals that “the failure of the defendant corporation to produce documentary evidence, which should have been extant and in its possession, to show with precision the nature of the consideration of the note sued on, leaves the evidence on that issue in a state affording support to contradictory inferences, and, therefore, as presenting issues of fact for the jury to determine,” where the corporation destroyed documentary evidence in its hands at the commencement of the litigation, by selling its ledger to a junk dealer and removing certain pages from the “bills payable” book, does not conflict with any previous decision of the Supreme Court, and said court will not rule that the Court of Appeals erred in refusing to rule that, under the circumstances, the presumption that the note was given for a valid consideration, was, as a matter of law, destroyed.</p> <p>4. -: Exclusion of Evidence: Ascertainment of Facts. In determining conflicts between the opinion of the Court of Appeals and the previous decisions of the Supreme Court, in a certiorari proceeding, the Supreme Court will not go beyond, said opinion to ascertain, the facts. If nothing is said in' said opinion concerning a certain witness or his competency, the Supreme Court will not rule that said opinion conflicts with its decisions in not ruling that the exclusion of the testimony of said witness was error.</p>

<p>1. FRAUDULENT CONVEYANCE: Wife to Hurband: Solvency. The term solvency, in its application to dealings between husband and wife, in which she attempted to convey to him all her property which might have been reached by execution under plaintiff’s judgment against her, implies her then ability to pay all her debts out of her estate and also such condition of her property that it may be reached and subjected by process of law, without her consent, to the payment of her debts. .</p> <p>2. -:-: Insolvency. A deed from a wife, a judgment debtor, to her husband, by which she attempted to convey to “him $5600 worth of real estate, for $1200 in cash and his note for $2700, and by which she was left legally insolvent, was fraudulent, for it was a joint attempt to render her legally insolvent, by placing her said real estate, liable to execution on the day of said pretended sale, beyond the reach of her creditors.</p> <p>3. -:-: Estoppel, The indorsement by the judgment creditor of the note given by the husband to his wife in payment for her land, first indorsed to him by the husband and then indorsed by said creditor to the wife, as a mere conduit, without any knowledge on the creditor’s part that the husband was having the note indorsed to his wife as part payment for her land, did not estop said creditor to pursue the land as having been conveyed by the wife to her husband to defeat the payment of the judgment.</p> <p>4. -: Sheriff’s Deed: Regular on Face. A sheriff’s deed, executed to the purchaser at the execution sale made in pursuance to a valid judgment and levy, which affirmatively recites all necessary facts in respect to the levy as well as other matters, and read in evidence without objection, will not be held to be void or voidable.</p> <p>5. -: Res Adjudicata: Innocent Purchaser: Separate Transactions. The purchase by a husband from his wife of lots in Kansas City, and a purchase two years later of land in Pettis County of land which she had then inherited but did not own at the time the lots were purchased, were not a single transaction, but separate and distinct deals; and a holding by the circuit court of Jackson the lots, without notice that the purchase money was unpaid, was County that the husband was an innocent purchaser for value of not res adjudicata in respect to the purchase of the land in Pettis County.</p> <p>6. -: Selling Land Under Execution Before Eraud Is Established. The holder of a judgment may sue out execution, have it levied on the debtor’s land (other than his homestead), have the sheriff sell the same, buy it in for a small sum, and then bring suit in equity to have a prior conveyance of the debtor set aside as made in fraud of his creditors. While this method of procedure has often been criticised by the Supreme Court as harsh and unfair to the debtor, and as encouraging speculation in litigation by the creditor, its legality has uniformly been upheld; and if this method of procedure is to be declared illegal, it must be done by the Legislature, ánd not by judicial construction.</p> <p>7. -: -: Lien on Land Sold: Inadequacy of Consideration. The judgment debtor, who has been endeavoring to defeat her creditor in the collection of his judgment ever since its rendition and who announced at the execution sale that the purchaser would acquire no title, is in no position to urge that the sale should be set aside for inadequacy of consideration. The creditor, who caused the land to be sold under his judgment, and having received a sheriff’s deed brought suit to have a prior conveyance made by the debtor to her husband set aside as made in fraud, of her creditors, is entitled, having established the fraud, to the land itself, and not merely to a lien on the land, although the land was worth $5.000 and was sold to him for $100, and the original judgment was for $748.20.</p>

<p>1. JURISDICTION: Mandamus: Collateral Proceeding. The Supreme Court will not entertain jurisdiction in any cause involving the issuance of an original writ over which any one of the courts of appeals has jurisdiction.</p> <p>2. -: -: -: Production of Letter for Use in Libel Suit. Relator, an employee of the city, being informed that a letter had been filed with the Board of Complaint, which by the city charter has authority to receive complaints against city employees and to recommend to the proper authorities such action as is deemed proper, brought suit for libel against the writers of the letter, and applied to the board to permit him to inspect the letter and make a copy of it for use in his libel suit, and being denied, brings his mandamus suit to compel the board to permit him to make such inspection and copy. Held, that, no reason being disclosed why the proceeding was not brought in the Court of Appeals, which under the Constitution has the same authority as does the Supreme Court to issue a writ of mandamus in a collateral proceeding to the libel suit whose subject-matter or the amount involved is not revealed by the application, the alternative writ is dismissed for want of jurisdiction.</p>

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. Held: 90 Ohio St. 280; St. Andrew’s Appeal, 67 Pa. 512. (2) Restrictions as to construction and restrictions as to user are different and distinct, and a restriction against a plural structure will not be construed to prohibit a plural use of a single structure unless such intention is clearly expressed.

<p>Appeal from Texas Circuit Court. — lion. L. B. Wood-side, Judge.</p> <p>(1) Plaintiff was a holder for value of the note (Sec. 9998, R. S. 1909), and the defendants having signed the same as makers were primarily liable thereon (See. 10161, R. S. 1909), and their engagement to pay it according to its tenor was absolute (Secs. 10161 and 10030, R. S. Í909). McCarty v. Smith, 97 Pac. (Utah) 329; Vanderford v. Bank, 105 Md. 164, 10 L. R. A. 129, 66 Atl. 47; West v. Stubblefield, 17 App. Cases, (D. C), 283; Trust Co. v. McGinty, 212 Mass. 205. (2) Parol evidence was inadmissible to show that the defendants signed the note as sureties or accommodation makers. Bank v. Douglas, 161 S. W. 608; Lane v. Hyder, 163 Mo. App. 692. (3) The note could only he discharged by one of four ways specified by Sec. 10089, R. S. 1909. Lane v. Hyder, 163 Mo. App. 692; Bank v. Douglass, 161 S. W. 608. The statute excludes every method of discharge of this character of instrument other than those specifically stated in Sec. 10089, R. S. 1909. 2 Sutherland, Statutory Construction (Lewis’s 2 Ed.), p. 916, sec. 491; State v. Mills, 161 Mo. App. 179; State v. Eckhart, 232 Mo. 49, 133 S. W. 321; State v. Fisher, 119 Mo. 351; Ex parte Mansell, 237 Mo. 304; Bradley Co. v. Higborn, 56 Wash. 628; McGrinty v» Trust Go., 212 Mass. 205. (4) Though the defendants did sign the note as accommodation makers, and Long, the payee, had knowledge of that fact, yet they were primarily and absolutely- liable thereon. Sec. 10000, R. S.,1909; Ranse v. Wooten, 140 N. G. 557, 111 Am. St. Rep. 875; Cellers v. Meachem, 49 Ore. 186; Vanderford v. Bank, 105 Md. 164.</p> <p>(1) The Negotiable Instruments Law, adopted in in the various States, was to codify the law as it then was, except in cases where a conflict' existed. Where there wás no conflict, the law made no change. Bunker on Negotiable Instruments, pp.' 1 to 21; Brannan on Negotiable Instruments (2 Ed.), pp. 190, 203, 223, 3, 7; Selover on Negotiable Instruments (2 Ed.), p. 7; Ogden on Negotiable Instruments, p. 6, sec. 8; p. 253, p. 256; Brannan on Negotiable Instruments (2 Ed.), sec. 196. (2) The Law Merchant is a part of the common law, and of the law of this State. 7 Cyc. 520-522; Stagg v. Linnenfelter, 59 Mo. 336. (3) In the absence of any provision of the Negotiable Instrument Law, the Law Merchant governs. R. S. 1909, sec. 10165. Codes, which condense and reaffirm in general the rules of the common law, do not repeal the exceptions to these general rules, and no change is to be presumed unless by the most imperative implication. The rule of expressio unius invoked by appellant is not applied to codifying statutes. Brannan on Neg. Ins. (2 Ed.), p. 190; 10 Tale Law Journal, p. 84 (article by Prof. Brewster, member of commission that framed Neg. Ins. Law); Sutherland on Stat. Cons., sec. 156; English on Interpretation of Stat., sec. 127, 205. (4) There is a marked distinction between a holder and a holder in due course. Holder means a payee in possession; a holder in due course is defined by Sec. 10022, R. S. 1909. Long, the payee in the note, is not a holder in due' course, because it was never negotiated to him, but he is simply a holder whose rights are clearly defined by section 1Ó028. It is apparent from this that all defenses are open to repondents that would be open if the note were nonnegotiable. The Negotiable Instrument Law has no application to non-negotiable instruments, and they are not governed by the statute. Crawford on Negotiable Instruments (2 Ed.), p. 5, note A; Bunker on Negotiable Instruments, p. 23 note 1; Brannan on Negotiable Instruments (2 Ed.), p. 1, note 1; Selover on Negotiable Instruments, par. 2; Westburg v. Lbr. Co., 94 N. W. (Wis.) 574. This being true, the common law, or law merchant, would regulate the rights of the parties as to all non-negotiable instruments in this State. Under section 10028, in the hands of any other than a holder in due course, the rights of the parties are the same as though the instrument were non-negotiable; hence it unquestionably follows that as between maker and payee before a note has passed into the hands of a third party in due course, it is open to all the defenses between maker and payee that it ever was, or that a nonnegotiable note is. (5) Section 10089, stating how a negotiable instrument may be discharged, refers to the instrument itself, and not to the discharge or release of a party. Section 10092 expressly provides a different method, whereby a party may be discharged. Ogden on Negotiable Instruments, p. 123, sec. 130; Bunker on Negotiable Instruments, p. Ill, and note. Any defense is valid as between the immediate parties that would be valid in an ordinary contract. As between the immediate parties on a bill or note, no question arises whether the defense is absolute and is inherent in the instrument itself, or whether it is personal, raising-equities between the parties. Ogden on Negotiable Instruments, sec. 142, p. 132. (6) As between the immediate parties, it is competent for defendant to show that he is an accommodation maker, and to set up any equities that may be set up under the law merchant or common law. Crawford on Negotiable Instruments, p. 35, sec. 54, note A; Crawford on Negotiable Instruments, p. 58, sec. 97, note- A; Ogden on Negotiable Instruments, sec. 142, p. 132'; Daniels on Negotiable Instruments (6 Ed.), p. 1477, sec. 1312; Selover on Negotiable Instruments (2 Ed.), p. 325; Brannan on Negotiable Instruments (2 Ed.), p. 117, and note; Fullerton Lbr. Co. v. Snouffer, 117 N. W. (Iowa) 50; Haddock v. Haddock, 85 N. E. (N. Y.) 686; Bank v. Barbour, 149 N. W. (Wis.) 767; Bank v. Edwards, 243 Mo. 563. (7) The testimony shows that Long knew that Mason was the maker for value, and received the whole consideration. The deed of trust recites on its face that Mason is to pay this debt. Giving the note and deed of trust were contemporaneous acts, and they will be construed togther. Brownlee v. Arnold, 60 Mo. 79. (8) To allow to payee of a negotiable note, knowing the relation of the parties to the note and their liability thereon knowing that only one, of such parties is a maker for value and that the others are makers without value, to take from the only one who is a maker for value, knowing him to 'be such, collateral security for such note and then improperly dispose of such security or permit the principal debtor so to do, and thereby deprive the makers without value*of the right to be subrogated, has always been considered so unjust and inequitable as to be condemned by the. courts of every civilized land. Ferguson v. Turner, 7 Mo. 497; Lake-nan v. Trust Co., 147 Mo. App. 485; Colebrook, Collateral Securities (2 Ed.), sec. 209, p. 382, and sec. 212, p. 328; 27 Eng. & Am. Eney. Law (2 Ed.),p. 516. (9) The Negotiable Instrument Law makes no provision for the payee of a note to take collateral security. Now in the event the payee does so do, by what law will we determine the duties and liabilities of such payee as to such security? Evidently not by the Negotiable Instrument Law, because it makes no provisions. Certainly by the lex loci contractus. Houghtaling v. Ball, 19 Mo. 84; Sal-lee v.- Chandler, 26 Mo. 124; State ex rel. v. Cunningham, 6 Mo. App. 263; Roach v. Foundry, 21 Mo. App. 118; Thompson v. Ins. Co., 169 Mo. 12; McKinstrey v. Railroad, 153 M*o. App. 546; 7 Cyc. 637. (10) That the payee of the note having a specific lien on the property of the principal debtor and voluntarily surrenders the lien or loses it by his own negligence the sureties will be discharged to the extent of the value of the lien so discharged or lost has been the declared law of this State ever since 1841. Ferguson v. Turner, 7 Mo. 497; Lakenan v. Trust Co., 147 Mo. App. 485. This was also the Common Law. 27 Eng. & Am. Ency. Law (2 Ed.), p. 516; Colebrooke on Collateral Securities (2 Ed.), sec. 209, p. 382; 3 Kent (13 Ed.), see. 124, p. 195, and English cases cited in Note E. (11) Parol testimony is admissible to show who is principal and who is surety to a note. Garrett v. Ferguson, 9 Mo. 125; Bank v. Wright, 53 Mo. 153; Hardester v. Tate, 85 Mo. App. 624; Ins. Co. v. Broyles, 78 Mo. App. 364.</p>

<p>1. APPEAL: From Interlocutory Order: Extent of Review. When an order for a new trial is granted for a specific reason, appellant’s burden is limited thereto in showing error in the trial court’s action. If other grounds are relied on to sustain the order, the respondent must preserve and call the appellate court’s attention to them or they will not be considered.</p> <p>2. ORDER GRANTING NEW TRIAL: Remittitur: Excessive Verdict. The authority of the trial court to enter a remittitur on account of an excessive verdict, is limited to cases in which the jury find: for more than the amount authorized in the instructions or pleadings. Hence an order granting a new trial unless the plaintiff enters a remittitur in a named sum, although on its face seemingly based on an excessive verdict, will not be so considered in the appellate court, if it is apparent from an analysis of the order and an examination of the record, that the real reason for granting the new trial was the giving of an instruction for plaintiff on the measure of damages and the refusal of an instruction asked by defendant on the same subject.</p> <p>3. -: Revew on Appeal: Other Record Matters. In reviewing an order granting a new trial, the appellate court is not limited in determining the trial court’s reason for granting the new trial to the mere letter of the order, but may call to its aid other affirmative record facts necessarily explanatory of the court’s action.</p> <p>4. -: Review of Court’s Discretion. There can be no discretion as to the law of a case. The giving of an instruction as to the measure of damages is a ruling on a matter of law, and if such was the reason of the court’s action for granting á new trial the question of whether the instruction announced a correct rule may be reviewed on an appeal from the order. Such review does not involve the trial court’s discretion, for it is only in the application of correct rules of law to the facts of a case that the exercise of discretion is permissible.</p> <p>5. BREACH OF CONTRACT: Measure of Damages: Liability of Surety. Where the contract was that the contractor was to furnish the materials, do the excavating and install a complete sewerage system, and the city paid him for the work as it progressed and after lie had been paid nearly ninety per cent of the contract price he abandoned the work, the city is entitled to be made whole and to recover whatever amount in excess of the contract price is necessary to complete the work; and in a suit on his bond the surety’s liability is the same.</p> <p>6. -: -: Duty to Complete the Work. And in such case proof of performance by the city of the uncompleted work does not constitute a condition precedent to its right to recover the amount necessary to complete the work.</p> <p>7. -: -: Speculative Damages. Damages sustained by the city are not speculative when the materials furnished and the work performed are known, and the outlay necessary to complete the sewerage system according to the contract is ascertainable with reasonable certainty from the testimony of experts familiar with the cost of materials and labor.</p> <p>8. -: -: -: Uncertainty as to Amount; Best Evidence. - In applying the rule as to uncertain damages, it is the uncertainty as to their nature, and not as to their measure or extent, that is meant. The actual amount of damages arising from a breach of contract may not be susceptible of exact proof, but the law does not permit one whose act has resulted in the loss to escape liability on that account. The manner of measuring the damages having been ascertained, the law only requires that the best evidence of the amount of which the nature of the case is susceptible be adduced.</p> <p>9. - — : City’s Reserved Right to Complete Work: Limitatipn on Power to Sue Surety. A clause in the contract to the effect that if the contractor shall abandon the work the city “shall have the right to annul and cancel this contract and to complete the same at the expense of contractor’’ means no more than that the city is given the permissive power to complete the work if it chooses, and in no wise precludes it from suing on the contractor’s bond for damages without completing the work.</p> <p>10. -: Damages: Expert Testimony. The testimony of experts, familiar with the cost of materials and of the amount of labor necessary to install the sewers and to complete the work, abandoned by the contractor before its completion and after the contract price had been almost entirely paid to him, is competent evidence to prove the amount of damages the city sustained.</p> <p>11. REMARKS OF COUNSEL: Refusal of Contractor to Testify. Remarks of counsel in arguments to the jury in a civil case are not eryor unless their prejudicial effect was sufficient to influence the rendition of the verdict. In a suit on a bond, growing out of a construction contract, reference by counsel in his argument to the jury that the surety had not put the contractor, who was in the court-room, on the witness stand to question or in any wise vary-the testimony of the experts examined by the plaintiff in proof of the damages sustained, was not prejudicial error.</p> <p>12. REFUSING INSTRUCTIONS. Where the instructions given for plaintiff clearly define and aptly submit a material issue, it is not error to refuse similar instructions asked by defendant.</p> <p>13. ACTION ON BOND: Changes in Contract. Provisions in the contract, and in the bond itself, that extensions of time, alterations in or additions to or omissions from the work as required by the plans and specifications, should not violate the bond or discharge the surety, although made without the surety’s consent, are as much a part of the bond as any other obligation expressed in it, and preclude the surety from objecting to any changes except those so extensive as to constitute the substitution of a contract different from the original. And where the changes were advantageous to the contractor, in that they entailed no additional time and lessened the cost of construction, the rule that changes in the construction of the improvement agreed to, subsequent to the execution of the contract, releases the surety, has no application, even in the absence of an agreement by the surety for changes.</p> <p>14. -: -: Settled by Jury. Where the instruction given fairly submits the facts regarding changes in the plan of construction and the conditions upon which the surety would be released from liability because of such .changes, the jury’s verdict is binding on the appellate court, and forecloses the question of release.</p> <p>15. -: Failure to Pay: Finding of Jury Conclusive. A verdict for plaintiff was a finding by the jury that plaintiff had not failed to pay for the work done in the manner prescribed by the contract, the question being submitted to them by proper instructions and there being substantial evidence to support the finding. Under such circumstances the finding is conclusive on appeal.</p>

<p>1. APPEAL: Assignments: No Ground Stated. A mere assignment in his brief that the trial court erred in refusing certain instructions offered by appellant, or a general assignment in his motion for a new trial that the court refused proper declarations of law offered by him, is not a sufficient assignment of error, even in a civil case.</p> <p>2. -: Objections to Evidence: No Ruling, If the testimony offered by respondent was admitted “subject to objection” by appellant, coupled with an opinion expressed by the court, sitting as a jury in a law cash, that it was not admissible, and appellant made no further effort to obtain a definite ruling and none was made, it cannot be determined on appeal that the testimony was considered by the trial court in reaching his findings, and, hence, that the admission of the testimony, under the circumstances, was error.</p> <p>3. SHERIFF: Necessaries for Poor Farm. The sheriff, without an order from the county court, has no authority to purchase articles necessary for the maintenance of the poor farm or poor house, so as to bind the county to pay for them.</p> <p>4. -: Necessaries for Court House, In the absence of any proper assignment, it will not be held on appeal that the trial court erred in holding that the statute making it the duty of the sheriff to furnish fuel, stationery and “other things necessary for the use of the court” did not authorize him to purchase large quantities of insecticide for disinfecting the court house, without an order of the county court.</p>

— Hon, Thomas B. Buckner, Judge. (J) -There is no contract in this case that satisfies the Statutes of Frauds. No land is described, nor is the county or the state named. The essentials of a contract involving the Statute of Frauds are...three, as laid down by this court: “First, the parties; second, the subject-matter; third, the consideration or price.

<p>1. APPEAL: Affirmance by Agreement: Release of Surety. Absent an agreement founded on good consideration and of such character as to be binding on both parties, made between appellant and respondent, to the effect that the judgment from which the appeal has been taken is to be affirmed, even though it contains a modification of the original liability, the surety on the appeal bond is not released upon the affirmance of the judgment.</p> <p>2. -: -: -: Dismissal of Appeal. An agreement made between counsel for appellant and respondent that an appeal would be 'dismissed when the agreed sum was paid by the surety on the appeal bond, and a dismissal by appellant’s counsel, who assumed that the surety would pay, and dismissed the appeal before payment was made and without the knowledge of respondent’s counsel, in no wise was a complete agreement for the affirmance of the judgment, and did not release the surety from paying the judgment, after the order of dismissal was set aside, the appeal reinstated, all the parties restored to status quo and the judgment affirmed.</p> <p>3. -: Affirmance: Without Notice to Surety. When a surety signs an appeal bond he submits himself to the management of the case by appellant in the proper appellate court, and at no stage of the proceeding is there any obligation on respondent to serve him with notice of any contemplated action; and he cannot complain that the judgment was affirmed without his knowledge or consent, even though the appellant neglected or refused to prosecute the appeal. If the appeal was dismissed, the order of dismissal set aside, and the cause reinstated, without notice to liim, and thereafter, because of the appellant’s failure to prosecute his appeal with diligence or to file brief and make argument, the judgment was affirmed, the surety cannot complain, for he submitted himself to the management of the case by His principal, and was not entitled to additional notice.</p> <p>4. -: -: -: General Liability of Surety. A surety on an appeal bond submits himself to the acts of his principal, and to the judgment itself as a legal consequence of his suretyship. He is bound by the result in the usual course of procedure, whether that result be reached by an adverse ruling or His principal’s default. By signing the appeal bond he voluntarily places himself in privity with his principal, and in the absence of fraud is con-eluded by tbe judgment that follows, and is not injured by a lack of opportunity or notice to appear and defend against tbe affirmance of tbe judgment.</p>

— Hon. F. P. Divilbiss, Judge. (1) Defendant’s motion in arrest of judgment should have been sustained for the reason the information failed to charge the defendant with any offense. And because there is a total variance between the offense alleged in the information and the proof in this cause. (2) Alonzo Jones was incompetent as a witness in this cause, because at the time his testimony was given he was under sentence of life imprisonment in the penitentiary.

— Hon. E. M. Beering, Judge. (1) There was a failure of proof or a fatal variance, the charge in the indictment being that defendant received $800 in lawful money of the United States, when the evidence showed he received a draft for $800 drawn upon a bank in the State of Louisiana.- State v. Mispagel, 207 Mo. 557; State v. Castleton, 255 Mo. 201; State v. Rosefelt, 184 S. W. 904; State v. Salmon, 216 Mo. 521; State v. Shapiro, 216 Mo. 359; State v. Plant, 209 Mo. 307; State…

— Hon. E. B. Wool-folk, Judge. (1) The doctrine of estates in entireties is repugnant to and inconsistent with the policy of our Married Women’s Acts and should not be applied to conveyances made since their enactment.

— Hon. Kimbrough Stone, Judge. (1) Section 7201, 7202 and 7203 of the General Statutes of Kansas of 1909 are penal and criminal in their nature, and cannot be made the basis of a cause of action brought in a court of the State of Missouri, (a) The courts of one jurisdiction will not enforcp the penal laws of another. Story on Conflict of LaAvs, sec. 621; 1 Wharton on Conflict of Laws, (3 Ed.), p. 14, par. 4; Kimball, v. Davis, 52 Mo.

Fred Stewart, Judge. (1) The court erred in overruling the demurrer filed at close of State’s evidence, and at the close of all the evidence. All the evidence on the part of the State fails to show that this was the cow that belonged to Awbrey, the injured party. No witness identified this cow as being the property of Awbrey.

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) The court erred in giving the peremptory instruction to find for respondent and to assess its damages in the sum of $12,000 and interest, (a) Because the liability of a surety can never exceed that of his principal, (b) Where a bond refers to another contract, such contract becomes a part of the bond and the latter must be construed in the light of the provisions of such contract. Heller v. Daman, 183 Mo.

— Hon Samuel Davis, Judge. (1) The plhintiff, George W. Elsea, was incompetent to testify for his co-plaintiff, American Bible Society, as both had an identical interest in the- validity of the deed sought to be established. Sec. 6354, R. S. 1909; Hisaw v. Sigler, 68 Mo. 449; 40 Cyc. 2334; Dumbar v. Meadows, 176 S. W. (Ky.) 1167. (2) The delivery of a deed is essential to its operation as a conveyance, and the grantee must have accepted it.

<p>1. CONTRIBUTORY NEGLIGENCE: Crossing Street-Car Track: Presumption. Any person approaching a street car track has a right to presume that those operating cars on the track will exercise ordinary care to avoid striking any one who may be about to cross, and to act upon that presumption.</p> <p>2. —:--: -:--: Driver of Wagon. The driver of a wagon on a public street, whose view was obstructed by a power-house until his horses’ feet were on the street-car tracks which crossed the street, had a right to presume that the motorman would perform his duty to stop his car where a sign required him to stop and where it was customary for cars to stop; he had a right to act upon that presumption in approaching the track, and if there was nothing in the appearance of the car to indicate that it would not stop and he got upon the track before he discovered that the car would not stop, he was not guilty of contributory negligence as a matter of law.</p> <p>3. -: Question for Jury: Instruction. If the issue of the plaintiff’s negligence is one which under the evidence should be submitted to the jury, an instruction which in effect directs them to find for defendant should not be given.</p> <p>4. -: Instruction: Duty to Look and Listen: Superfluous. If the evidence is undisputed that the driver of the wagon, at the first opportunity after he passed the power-house which abutted on the cross street and obstructed his view, looked for a car and saw one coming, and under the law he had a right to presume that it would stop before it attempted to cross the street, as it was required by the rules to do and as cars customarily did, and acting on that presumption he drove on, an instruction defining his duty to look and listen is superfluous, and one making it his duty to “get off of the track and let the car pass” is erroneous.</p> <p>5. -: -: -: Must Be Caused of Injury. An instruction which directs the jury to find for defendant if they find he did not look or listen for the approaching car, without also requiring them-to find that he could have avoided the injury by looking, or by attempting to stop and clear the track after he saw the car, when he had the right to presume it would stop before attempting to cross, is erroneous</p> <p>6. -: Must Be Pleaded. The issue of contributory negligence is an affirmative defense, and the allegation asserting it should be as specific and direct as allegations- of negligence in the petition. An allegation that “if the plaintiff received any injuries at the time mentioned in said petition the same were caused by his own fault and negligence” pleads no specific act constituting contributory negligence, and will not authorize the submission of that issue to the jury.</p> <p>7. -: -: Instruction. And in view of such a plea, which in effect is no plea of contributory negligence at all, an instruction which requires the jury to find that “plaintiff himself was not negligent in any manner that contributed to the collision,” is erroneous.</p> <p>8. NEGLIGENCE: Instruction: Speed: Misleading: Misdirection: Withdrawing Issue. An instruction which tells the jury that “there is no evidence in this case that defendants were running the car in question at a negligent, careless or high rate of speed, and upon that issue your verdict will be for the defendant,” being an attempt to remove from the jury the issue of excessive speed, was erroneous for three reasons: first, it was ambiguous and misleading, in that it might be interpreted by the jury to mean that there was no issue before them as to whether the car was run at a careless rate of speed, or that in any event their verdict must be for defendant; second, it was confusing and a positive misdirection, in that it permitted two verdicts, one for defendant on that issue, and possibly another for plaintiff on other issues; and, third, it attempted to remove the issue of negligent speed from the jury, which was improper, since there was evidence that the car was running ten or twelve miles an hour at a point where the rules and safety required it to stop.</p> <p>9. -: Excessive Speed. It was a careless rate of speed for a street car to approach a safety stop where cars customarily stopped so fast that the motorman could not stop the car there, and to so run it that it must necessarily collide with any one who might happen to be on the track in the street at that place, unless such collision was caused by a “blowout of the overhead,” and whether it was so caused is a question for the jury where the evidence is conflicting.</p> <p>10. -: Instruction: Stopping Oar: Relieving Defendant of Ordinary-Care. An instruction telling the jury that the issue of the motorman’s duty to exercise ordinary care to stop the car, after he saw plaintiff in a position of peril, is withdrawn from their consideration, is error, where there is evidence tending to show that the motorman did not attempt to stop after he saw plaintiff’s peril, or other evidence that he pursued an improper method to stop if he made any attempt at all.</p> <p>11. -: Conflicting Instructions: Cure. Instructions for defendant which present a wrong theory of the case to the jury are not cured by a single correct instruction given for plaintiff.</p>

<p>1. WRITTEN CONTRACT: Extraneous Evidence: Letters. If the written contract is not entirely definite and clear, and free from ambiguity in its meaning and purport, or if its terms are susceptible of more than one meaning, so that reasonable men may fairly and honestly differ in the construction of it, then extrinsic evidence, either written or parol, is admissible to resolve such ambiguity and arrive at the true intention of the parties. If the contract be such, contemporaneous letters, and subsequent letters, written by the parties, in which they express their understanding of the contract, are admissible.</p> <p>2. -: Circumstances. The written contract should also be read in the light of the surrounding circumstances, in order the more perfectly to understand and explain the meaning and intent of the parties.</p> <p>3. -: -: Prepared by Seller: Contra Proferentem. The fact that the contract of sale and purchase, signed by both parties, is one prepared by the seller, whose agents used his printed form, prepared and kept on hand by him for use in making sales and designed to afford to him the largest possible measure of protection in making such sales, is to be borne in mind in construing the sales contract sued on, and requires that any doubt in its terms be resolved in favor of the buyer.</p> <p>4. -: Sales: Date of Delivery: Within Specified Time: Explained by Seller’s Letter. The contract, written by the seller on one of his printed forms, provided that “the seller hereby sells and agrees to deliver and the buyer hereby purchases and agrees to receive 320 barrels ... of linseed oil, for shipment 'in carload quantities as follows, and' within ten days of specified dates: -Barrels, January; -barrels, February; .' . . ;. 320 barrels, October . . . f. o. b. cars or factory, St. Louis . . . Buyer to furnish specifications for shipment in ample time to enable seller to execute order within period or periods named above.” Both seller and buyer had offices in St. Louis, where the contract was made, but the seller kept its main supply of oils in Minneapolis, from which place carload shipments were made. Certain deliveries were made on various dates between October 14th and 20th. On October 20th the buyer ordered one car “for immediate shipment,” and in several conversations within the next few days urged the seller to effect the shipment as quickly as possible. The market price of oil was declining, and on October 31st the buyer wrote the seller that his customer would refuse to receive the car unless delivery was made on that day. It arrived on November 6th, was tendered to the buyer on the 7th, and by him refused, and was sold by the seller, who brings suit for the difference between the price received and the contract price. Held, that by the use of the words "within ten days of specified dates” and then the insertion of the word “October” on the blank line, there was no intention to specify any particular date of delivery, but the natural inference is that delivery was to be made within a period of time, namely, October, and the reasonable interpretation of the contract is that the seller was required to deliver during the month of October, provided the buyer furnished shipping directions in .time to permit the seller to make delivery on or before the end of the month; but the time of shipment is obscurely stated, and therefore a letter written by the seller to the buyer on the same day the contract was drawn, in which he confirmed the werbal sale theretofore made of “320 barrels of linseed oil for delivery in the month of October,’’ was competent, and removed the ambiguity as to date of delivery, and the seller is not entitled to recover.</p> <p>5. DATE: October. The word “October,” standing alone, does not connote a date, much less a “specified date,” unless' some other word or phrase is added to show that it was used to mean something which its ordinary use does not imply. Standing alone it implies a period of time. The word “date,” in its legal and in its ordinary sense, imports the day of the month, the month and- the year; it means a given point of time — the point at which something takes place or is appointed to take place.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The court erred in sustaining the motion for a new trial, (a) Because the will itself is sufficiently plain on its face. as not to require any extrinsic or explanatory evidence. Kingman v. Winchell, 20 S. W. 296; McQueen v. Lillv, 131 Mo. 17; Meiners v. Meiners, 379 Mo. 614; 40 Cyc. 1431, 1433, 1436. .

Louis Court of Criminal Correction.— Hon. Galvin N. Miller, Judge.

— Hon. G. H. Skinker, Judge. (1) The admission of the testimony of witnesses Winfrey, Fry, Smith, Evans and others, as to the statements of deceased made on the afternoon of November 9, 1915, and on other days prior to the morning of November 10th, at which time the deceased is supposed to have met his death, and at places from one to five miles distant from the scene of the killing, were wholly incompetent and prejudicial to the defendant, for such statements were not a…

<p>1. CONVEYANCE: Reservation of Dower and Homestead: Widow’s Interest. A warranty deed in tbe usual form, made by a husband and wife, which recites that the wife “does not intend in any wise to relinquish her right of homestead or dower” and that “the estate in remainder is the estate intended to be conveyed, and said first parties are to have the use and profit of said ;place as long as both or either of them shall live,” neither conveyed nor reserved to the wife any estate or interest in either the property or its enjoyment which she did not already have. Without the deed she had both inchoate dower and homestead, and those are the only interests it attempts to reserve to her, and as the husband made no attempt thereafter to grant any interest in the use and profits reserved to him, her rights in the property after his death are exactly the same as if the deed had never been made; and as the property was abandoned as a homestead during the husband’s life, the widow has only dower therein.</p> <p>2. -: Wife as Grantor: Interest in Reservation. A wife who joins her husband as a grantor in a deed, in order to take anything by a reservation therein, either (1) must have an existent estate of her own therein and reserve it, or (2) her husband, who actually has an estate therein and excepts an interest thereof from the grant, must convey the excepted interest to her.</p> <p>3. -: Wife’s Interest in Reservation: No Deed From Owner. Where the husband, who owned the land, in his warranty deed, in which his wife joined, reserved for himself the rents and uses of the land and excepted a life estate therefrom, and attempted to reserve and except a like interest and estate for her, and did not thereafter convey said reserved interest and excepted estate to her, she never owned it and cannot because of such reservation or exception claim it after his death.</p> <p>4. -: Of Inchoate Dower. The joining of a wife with her husband in a deed conveying his lands does not operate by way of a grant of her inchoate dower, but only by way of estoppel. The deed of one entitled to inchoate dower or contingent homestead operates only as a release of the contingent future estate, and not by way of grant.</p> <p>5. -: By Written Instruments. Under the statute (Sec. 2787, R. S. 1909) lands and estates therein can be conveyed only by written instruments.</p> <p>O. -: Reservation: Exception: Meaning. A reservation in a deed must be made for the benefit of that grantor who, having an interest in the thing granted, may logically reserve from the operation of the grant a part of the estate or thing granted, or some right growing out of or appurtenant to it; and if it pertains to a lifetime use, it dies with the grantor. If the deed carves an exception out of the estate, and that exception is not passed to the grantee, then such exception remains a part of the grantor’s estate, and unless disposed of by a later grant passes on his death to his heirs or devisees.</p> <p>7. -: Exception: Passes to Heirs or Devisees. Where the grantor, who was owner of the fee, by a deed in which his wife joined, in the habendum clause, “reserved a life estate in the property,” and then said that “the estate in remainder is the estate intended to be conveyed and the first parties are to have the use and profits of said land as long as both or either of them shall live,” he thereby carved out an exception from the grant of a life estate in the use and profits both for himself and his wife, which did not pass to the grantee upon the grantor’s death, for the use is expressly reserved for the life of another (the wife), but passed to the grantor’s heirs if he died intestate or to his devisees if he died testate, and, though it was not by that instrument granted to his widow, she has dower therein ’ during her life.</p>

<p>1. PRESUMPTION OF DEED: Not Pleaded or Ruled. When the facts warrant it the court will presume the execution and delivery of a deed. But such presumption will not be indulged on appeal, if such issue was neither pleaded nor ruled nor relied upon in the trial court.</p> <p>2. -: Prima-Facie Case: Appellate Rule. When a prima-facie case is made by plaintiffs, and no instructions are asked or given, the appellate court will not review the evidence for the purpose of determining its sufficiency to overthrew that prima-facie case And plaintiffs in an action to quiet title make a prima-facie case by showing a perfect paper title in themselves, and where they hu,ve done that and the trial court sitting as a jury has found that they are entitled to recover the land, the appellate court will not rule, on defendants’ appeal, that the evidence establishes a presumption that plaintiffs’ ancestor had executed and delivered a . deed to defendant’s ancestor; for the burden of overcoming the prima-facie case and of establishing the presumption was on defendant, and it is not the province of the appellate court to say that the evidence did actually do that, in the face of a finding by the trier of the fact to the contrary.</p> <p>3. LIMITATIONS: Thirty-Year Statute: Necessary Facts. Where plaintiffs have made a prima-facie case of ownership of the land by showing the paper title to be in them, it becomes necessary for defendants, in order to overthrow that case and establish ownership in themselves under the thirty-year Statute of Limitations, to prove that for a period of thirty consecutive years plaintiffs, either themselves or by some one under whom they might claim, had no possession of the land, had paid no taxes thereon, had failed to bring suit within one year thereafter, and that defendants were in lawful possession.</p> <p>4. -:-: Lawful Possession: No Color of Title: Part of Tract. • Possession without color of title is confined to the part actually occupied; and where defendants have no color of title, and the evidence establishes a paper title in plaintiffs, it becomes necessary for the trial court to determine from all the evidence what part of the tract the defendants are actually occupying and are entitled to claim under the thirty-year Statute of Limitations. Judgment cannot be rendered for them, under such circumstances and in view of that statute, for so much of the tract as they have not had in actual possession.</p> <p>5. -: -: Payment of Taxes. The proof of the non-payment of taxes for thirty years is not limited to direct evidence; it may be established by circumstantial evidence. And the circumstances of this case were such as to amount to substantial evidence that neither plaintiffs nor those under whom they claim had paid . any taxes for thirty years.</p> <p>6. -: Remaindermen: Renunciation of Will: How Shown: Minute of Piling: Admission. The minute or docket entry made in the record of the proper court, reciting that the widow files her renunciation of her husband’s will, which gave her a lifetime interest in one-fifth of his real estate, remainder to plaintiffs, is not only evidence that a proper writing purporting to be a renunciation of the will was filed, but is a solemn admission, binding on her and the remaindermen, that the will was renounced, and when followed by long years of acquiescence and treated both by her and them as valid arid binding, is evidence that the renunciation was in proper form, duly executed and 'acknowledged; and such evidence, uncontradicted, bars the remaindermen to assert the Statute of Limitations did not begin to run against them during her life.</p>

<p>1. INTENT: Carrying Concealed Weapons: Unarmed Thief. Without further showing, an intent to murder cannot be imputed to a man who unlawfully carries concealed weapons; or to an unarmed thief. But such intent can be imputed to a proven thief who unlawfully carries pistols concealed on his person.</p> <p>2. -: -: -: Conspiracy. When two brothers, in daily association, and with the evident knowledge on the part of each that the other is unlawfully armed with concealed weapons, go about their dishonest work of stealing automobiles and valuable copper wire, such facts strongly point to a mutual understanding and conspiracy that their arrest shall be thwarted by killing the officer who attempts it. And the force of such evidence is increased by the fact that each carries his weapon concealed in an unusual place upon his person, to prevent the discovery of the weapons.</p> <p>3. -: -: -: -: Killing of Another in Attempt to Escape. And such conspiracy or mutual understanding is further increased by the fact that immediately after one of them had shot the officer who had placed them under arrest, both fled headlong together from the place, concealed themselves in' another garage, and killed another officer who attempted to interrupt them in their attempted escape.</p> <p>4. MOTION FOR NEW TRIAL: Assignments: Must Be Specific. If the motion for a new trial in a criminal case only mentions the instructions generally, such as “the court erred in declaring the law of the case,” “the instructions given are a comment on the evidence” and the court omitted to take by proper instruction from the jury’s consideration certain illegal, incompetent, immaterial, irrelevant and improper testimony admitted over the timely objection of defendants,’’ the giving, refusal or failure to give any instruction is not properly before the appellate court for review on appeal, because it does not call attention to any specific proposition. However, in this capital case, in which it is stated in the brief that, because of “the misconduct, lack of skill and incompetency of the attorney who appeared for defendants at the trial,” they were “prejudiced and were prevented from fairly presenting their defense,” so much of the instructions as relate to the material points raised by their counsel are set forth, considered and held to be free from error.</p> <p>5. INSTRUCTION: For Murder in Second Degree. An instruction for murder in the second degree is properly refused if there is no evidence on which to base it. In this case it was not error to confine the instructions to murder in the first degree.</p> <p>6. -: Reasonable Doubt. The instruction set out in the statement as to a reasonable doubt about any one fact necessary to show guilt, when considered in connection with another instruction concerning the general subject of reasonable doubt, was as favorable to defendants as they have any right to claim.</p> <p>7. -: Conspiracy: Contradictory. An instruction to the effect I that there is no evidence' that one of the defendants was present at the scene of the shooting at the time the other shot the officer “for the purpose of aiding or abetting the same, by word or act,” and that “the only ground upon which he could be held legally responsible for said shooting would be that it was done in the execution of a conspiracy or agreement to which he was a party,” was not error, there being positive evidence of the existence of a prior conspiracy to kill in an attempt to escape arrest, and there being no evidence that the shooting was done over the said defendant’s protest.</p> <p>8. CAPITAL PUNISHMENT: Reduction in Supreme Court. Where the punishment had been assessed, sentence pronounced, judgment entered and an appeal taken before the Act of 1917 abolishing capital punishment went into effect, the Supreme Court is not authorized by the statutes to reduce the punishment to life imprisonment. [Opinion on Motion to Modify Judgment.]</p>

<p>1. APPELLATE JURISDICTION: Revenue Laws: Benefit Assessment. The laws providing for benefit assessments are “not revenue laws of the State” within the meaning of Section 12 of Article 6 of the Constitution, conferring jurisdiction on the Supreme Court of appeals involving a construction of the revenue laws of the State.</p> <p>2. -: -: Meaning. By “revenue laws of the State” in the clause of the Constitution defining appellate jurisdiction is meant those laws by which revenue is raised for purely public governmental functions. They are not the laws whose principal purpose is to furnish means for paying for mere local improvements, such as those authorizing a drainage district to assess benefits on lands therein for the purpose of paying the cost of constructing drains and levees, or such as those authorizing a city to assess the cost of a sidewalk or pavement against the abutting property as a benefit thereto.</p> <p>3. -: -: Benefit Assessment: Method of Collection. The fact that the laws providing for special assessments to pay for a local improvement also provide for the collection of those assessments in the same manner and by the same officers as ordinary taxes are collected, does not make the construction of those laws a construction of “the revenue laws of the State.” The mode of collection is but a method of procedure, and if the laws governing the procedure are the same as that prescribed by the revenue laws they simply draw on those laws to the extent of making a complete special assessment law, and the construction must be as if they were a part of the special assessment act.</p>

<p>1. JUNK DEALER: Power of City to Regulate: Ejusdem Generis. A city has no inherent power to license or regulate any occupation, unless perhaps it be such as is malum in se or closely allied thereto; but a city charter, which enumerates a large number of occupations which the city may license and regulate and then includes “all other businesses, trades, avocations or professions whatsoever” and further says that the city may “license, tax, regulate or suppress all occupations, professions and trades not hereinbefore enumerated, of whatever name and character,’’ gives the city power by ordinance to license and regulate junk merchants and junk dealers, although they are not among the occupations specifically mentioned, for the quoted words cannot be held to include other occupations of a kindred kind and character to those mentioned, but on their face are without meaning unless they are made to apply to occupations not enumerated, and clearly manifest a legislative intention to include others not specifically mentioned.</p> <p>2. EQUALITY OF TAXATION: Different Tax on Merchants and Junk Merchants. The city, under its charter authorizing it to license and regulate merchants and all other occupations not enumerated, may classify merchants as one occupation, and junk merchants or junk dealers as another, and place one license tax on the one class and a different license tax on the other, and it will not thereby violate the constitutional provision requiring a tax to be uniform upon the same class of subjects.</p> <p>3. JUNK: Police Regulation: Power of City, The business of dealing in junk and second-hand goods is of such character as to warrant police regulation; and charter provisions authorizing the city to enact ordinances “to prevent the introduction and spread of contagious diseases’’ and “to pass all ordinances as may be expedient in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures, and to enforce the same by fines and penalties’’ are ample authority for enacting ordinances licensing and regulating “the business of buying, selling or dealing in old junk, metals, bottles, syphons, books or other articles usually found in junk shops,” and requiring the Junk dealer to keep a book in which shall be recorded in ink “the names of all persons from whom he purchases any article whatever and an accurate description of .the article, together with any marks, brands, letters or words of identification thereon,” and making it unlawful to buy any such article "from any minor without the written consent of his parent or guardian,” and imposing a fine upon him for failure to pay such license or to keep such registry — all in the interest of sanitation, to aid in the prevention of easy thefts, and to preserve the morals of youth.</p> <p>4. JUNK DEALER: In Old Bottles Exclusively. One dealing in old bottles exclusively may be regarded as a junk dealer, and may be so classified, and his business regulated by ordinance under charter provisions authorizing the city to enact police regulations.</p> <p>5. -: Double. Taxation. The assessment upon a junk dealer of a merchant’s license tax and of a separate junk dealer’s license tax, in pursuance to charter and ordinance provisions, is not double taxation. If both occupations are pursued by the same person it is competent to impose a license tax on each occupation.</p> <p>6. -: Registry of Purchases: Inspection by Any Citizen: Unreasonable Search and Seizure. An ordinance requiring a junk dealer to “keep a book of registry, in which shall be recorded in ink or indelible pencil the names and addresses of all parties from whom he purchases any article whatsoever, together with the date of suck purchases and a full and accurate description of the article, together with any marks, brands, letters or words of identification thereon,” and requiring that “said book of registry shall at all times be kept open for the inspection and examination of the police or any citizen,” does not authorize unreasonable searches and seizures for private purposes, and is not violative of the constitutional provisions concerning unreasonable search and seizure. The “any citizen’’ referred to is any one whose property has been stolen and who demands an inspection of the book for the purpose of assisting him in the discovery of the property and the apprehension of the thief, and not a disinterested curious person.</p> <p>7. -:-: Large Business: Unreasonably Oppressive. The fact that the junk dealer conducts a very large business and to keep a registry of all old bottles purchased by him would be practically impossible, does not render the ordinance requiring such registry to be kept unreasonably oppressive. No one has an inalienable right to conduct a junk shop; to do so is a privilege, which may be absolutely denied, or regulated, under the police power for the protection of the public health and the prevention of easy thefts, arid the size of the business can in no wise increase or decrease the authority to regulate it.</p>

Louis City Circuit Court. — Hon. Kent Koerner, Judge. (1) The duties of a municipal corporation are of two kinds, first, governmental duties, which have been delegated to the city by the Legislature in the exercise of which the municipality is the agent of the State, and, second, those duties which may be termed private or corporate duties, exercised for the benefit solely of the municipality and its inhabitants.

<p>Appeal from St. Louis Court of Criminal Correction. —Hon. Benjamin F. Ciarle, Judge.</p>

<p>Appeal from Ralls Circuit Court. — Hon. W. T. Ragland, Judge.</p> <p>(1) The title to real estate should not be permitted to slumber in the uncertainty of oral contracts to convey. A parol contract to convey real estate is an exception engrafted by courts of equity on the Statute of Frauds which requires all such contracts to he in writing. The evidence in this case is not of such a character as to touch the conscience of the court and call into play the exception to the statute. To warrant specific performance of an oral contract to convey real estate, such as the contract in suit, the proof must leave no reasonable doubt that the contract was made. Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Berry v. Hartzell, 91 Mo. 132; Yeth v. Gierth, 92 Mo. 97; Cherbonnier v. Cherbonnier, 108 Mo. 252; Fanning v. Doan, 139 Mo. 392; Kinney v. Murray, 170 Mo. 674; McKee v. Higbee, 180 Mo. 263; Russell v. Sharp, 192' Mo. 270; Kirk v. Middlebrook, 201 Mo. 245; Wales v. Holden, 209 Mo. 552; Collins v. Harrell, 219 Mo. 279; Forrister v. Sullivan, 231 Mo. 345; Oliver v. Johnson, 238 Mo. 359; Walker v. Bohannan, 243 Mo.. 119; Hersman v. Hersman, 253 Mo. 175; Wanger v. Marr, 257 Mo. 482. (2) The defendant has wholly failed to meet and perform the terms of the parol agreement set up in his answer and upon which he relies. The execution of the deed, dated August 22, 1908, by the Kraft heirs to defendant and said Jennie E. Graves, is in no respect a compliance with the terms of the alleged contract, and the defendant has no ground of complaint if a court of equity leaves him in the position in which he has placed himself and refuses to compel the other party to perform. Secret Service Co. v. Mfg. Co., 125 Mo. 140; Pomeroy v. Fullerton, 131 Mo. 581; Hollman v. Conlon, 143 Mo. 369; Real Est. Co. v. Spelbrink, 211 Mo. 671; McQuary v. Land Co., 230 Mo. 342; Munyon v. Hartman, 262 Mo. 449; Ranck v. Wick-wire, 255 Mo. 42; Curtis v. Sexton, 142 Mo. App. 179; Taylor v. Longworth, 14 Peters (U. S.), 174; Holgate v. Eaton, 116 U. S. 40; People v. Bldg. Co., 92 N. Y. 98.</p> <p>The oral contract which respondent 'asks to be specifically enforced was proven beyond doubt. The trial court could reach no other conclusion than that to refuse respondent equitable relief would be to permit a fraud to be perpetrated on him. The evidence in support of the contract fully measures up to the most rigid requirements ever announced in this jurisdiction in cases where an oral contract for the sale of land was sought to be enforced. Merrill v. Thompson, 252 Mo. 714; Healey v. Simpson, 113 Mo. 340; School District v. Holt, 226 Mo. 406; West v. Bundy, 78 Mo. 407; Daugherty v. Hortsel, 91 Mo. 161; White v. Ingram, 110 Mo. 474; Hall v. Harris, 145 Mo. 614; Hubbard v. Hubbard, 140 Mo. 300; Bond v. Read, 131 Mo. 558; Webb v. Toms, 86 Mo. 591; McQuitty v. Wilhite, 247 Mo. 163; Whitaker v. Lewis, 264 Mo. 208. In each of the cases cited by appellant the evidence in support of the' oral contract was weak and unsatisfactory as compared with the evidence in support of the contract under consideration. In some of these cases there was a sharp conflict in the evidenóe. In others the acts relied upon to establish performance on the part of complainant were not referable to the alleged contract, and in such cases the decisions turned on this point. In still other cases so cited the contract as proven was indefinite as to what particular property was to be conveyed and, of course, ■ specific performance could not be decreed. In several of the cases the evidence consisted solely of the loosest of declarations and admissions made by one deceased, and made from twenty-five to forty years before the trial, and unsupported by corroborating actions, facts or circumstances. The appellate court will defer somewhat to the conclusion reached by the trial court on matters of fact, when much depends on the demeanor of the witnesses. Berry v. Hartzell, 91 Mo. 132; Ersldne v. Loewenstein, 82 Mo. 301; Choteau v. Allen, 70 Mo. 336; McQuitty v. Wilhite, 247 Mo. 163. (2) Respondent in good faith purchased the Kraft land and paid the price, $3000; he procured the deed to be made to himself and his wife, Jennie E. Graves, all in an honest attempt to carry out his part of the contract. All of the interested parties, grantors and grantees, thought the description correct, and that the land had been properly conveyed. In fact, the substantial title did pass under the deed, and all parties treated it as an absolute conveyance and acted accordingly. It was a substantial, meritorious and valuable compliance and performance by respondent, and, except for a mistake in the description of the land overlooked by all the parties, and which mistake could easily be corrected, was a literal and'complete performance on the part of respondent. Equity looks to the substance of transactions and regards the spirit of an obligation rather than its mere form. So all that is generally demanded in equity is a substantial compliance with the agreement sought to be specifically enforced, on the part of him who asks the aid of equity to give it effect. Secret Service Co. v. Mfg. Co., 125 Mo. 140; Blanton v. Distilleries Co., 120 Fed. 349; Willard v. Tayloe, 8 Wall. 557; Taylor v. Longworth, 14 Peters (IT. S.), 174. Mrs. Craves never rescinded the contract, and appellants will not now be permitted to do so. One who has a right to refuse to perform á contract or rescind because of failure or default of the other party to perform according to the terms of the contract must, when resisting specific performance, do so, and at the same time return the money or other thing of value received under the contract. He cannot refuse to perform and at the same time retain the benefits derived from the contract. Powell v. Hunter, 257 Mo. 447; Harvey v. Morris, 63 Mo. 477; Lanyon v. Ch'esney, .186 Mo. 555; Hunt v. Marsh, 80 Mo. 396; Smith v. Bushby, 15 Mo. 387; Cartwright v. Culver, 74 Mo. 182; Lockwood v. Railroad, 65 Mo. 236; Pulliam v. Burlingame, 81 Mo. 118; Pershing v. Canfield, 70 Mo. 140. (3) Respondent paid $3000 for the Kraft eighty and procured a deed to himself and Jennie E. Craves, which purchase and deed, although the description was incorrect in the deed, at least made respondent and his wife the equitable owners of the Kraft eighty. This was at least a valuable part performance of the contract on the part of respondent. Again, he went into possession of the 71.10 acres and erected valuable and lasting improvements thereon, acts referable solely to the oral contract. Jennie E. Graves, as the chancellor found, entered with her husband into the joint possession of the Kraft eighty. The courts have uniformly held that under such' conditions specific performance will be decreed. Despain v. Carter, 21 Mo. 335; Johnson v. McGruder, 15 Mo. 365; Hays v. Railway, 108 Mo. 544; Adair v. Adair, 78 Mo. 630; Johnson v. Hurley, 115 Mo. 513; Walker v. Owen, 79 Mo. 563; Tatum v. Brooker, 51 Mo. 148; Young v. Montgomery, 28 Mo. 604; Dickerson v. Chrisman, 28 Mo. 134; Anderson v. Shockley, 82 Mo. 250.</p>

<p>-1. NEGLIGENCE: Foreseen Injury. An act is negligent when in the circumstances some injury to some one reasonably may be foreseen as a reasonable consequence; it is not necessary to constitute the act negligent that the particular injury must have been such as could have been foreseen.</p> <p>2. -: -: Question for Jury. Where the evidence is not such that all reasonable minds would agree that no negligence was shown, the question of whether a reasonable man ought to have foreseen the injury to an employee engaged in banding an armature with wire, upon the sudden starting of the engine and a failure to stop upon signal, as promised, is for the jury.</p> <p>3. -: Contributory Negligence: Anticipating Injury: Question for Jury. The question of contributory negligence is ordinarily one for the jury; and whether the employee, engaged in feeding a wire coiled about his arm into a clamp, by which it was held taut as it was wound on to an armature, revolved by an engine, was negligent in not grasping in time to save himself the fact that his call for the engine to be stopped would or could not be heeded, as had been promised by the engineers and not done, is a question for the jury.</p> <p>4.--: -: Sudden Danger: Confusion: Question for Jury. Whether the sudden application of power to the engine, contrary to the promise of the engineer, was sufficient to arouse inconsiderate action on the part of an employee who was feeding a wire coiled about his arm into the clamp of a machine operated by the engine, and whether apprehensions that. if he dropped the wire it would in its whirling motions injure another person standing near the clamp, and whether or not he was justified by such aroused perturbations and apprehensions in holding onto the wire until it was too late to disengage it from his arm before his fingers were drawn into the machine, and thereby relieved of the charge of contributory negligence in holding on to the wire after the danger became apparent, were questions for the jury.</p> <p>5. -: Change of Masters: Wrong Defendant: Respondeat Superior. An electrical company had been engaged to repair machinery used to generate electricity for defendants’ building, and sent plaintiff and its foreman to do the electrical work, which was to band with wire an armature fixed upon an extension of a draft-wheel shaft of an engine. The wire was attached to the armature and it was essential that it be drawn very tight, and hence it was passed through a clamp fixed near by to give the necessary tension. Plaintiff’s duty was to keep the wire straight and feed it into the clamp. The engineers promised that they could and would revolve the armature slowly and stop it upon signal, but did neither, but suddenly applied the power and revolved it rapidly, and plaintiff’s fingers were drawn against the clamp and severed. It was necessary to operate the engine in banding the armature, and the engine belonged to defendants and they furnished the engineers, who were in their general employment, and instructed them to operate the engine as they were directed by the electrical company’s employees. Held, that these facts fail to establish conclusively that the engineers had changed masters, and the question of whether the defendants were liable for the engineers’ ^negligence was one for the jury.</p>

— Eon. Charles E. Mayer, Judge. (1) The court erred in submitting this case to the jury upon the question whether the appellant committed the acts complained of willfully and maliciously. There is no evidence that the appellant willfully ran over the respondent. There is no evidence of malice.

— Hon. J. P. Foard, Judge. (1) The court erred in refusing to permit appellants to prove that the city had passed an ordinance to pave Davidson Street, as this would have shown that this street had been recognized by the city where it is now located. Mayville v. Truex, 235 Mo. 619.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The beneficiary in a life insurance policy has a vested interest when the insured does not reserve the right to change the beneficiary, and this is particularly true when the policy provides: “It is agreed that the insured has no interest in this policy, the beneficiary being the sole owner thereof.” Both these facts were true in the instant case, and the policy was payable to the George D. Allen Paper Company,…

<p>1. INTERSTATE TRAIN: Inadequate Service: Power of Commission. The Public Service Commission is vested with plenary power to compel an interstate train to stop at a certain town on the company’s line, if the company is not already furnishing reasonable, proper iand adequate interstate service to the town and locality.</p> <p>2. -: -: California. A modification by the circuit court of the order of the Public Service Commission requiring a certain interstate passenger train to stop “at California on flag either to take on or to let off passengers to or from any point on the railroad whereat said train stops as by its schedule provided” by relieving the company of the necessity to stop “except to put off passengers from St. Louis,” is, after a review of the many facts in evidence, approved.</p> <p>3. -: -: Stopping a't Smaller Towns. The fact that the interstate train which the mayor asks the Public Service Commission to compel the company to stop at California stops on flag at the small towns of Berger and Morrison is of no importance in determining whether California already has adequate interstate service.</p>

<p>1. PUBLIC SCHOOLS: Equal Opportunities: Admission to Teachers’ College: Examinations. All persons within the constitutional age limit who possess the required qualifications for receiving the course of study offered in a teachers’ college if it is in full sense a public school, and located in the district, are entitled to equal opportunity of becoming students in said college; but this does not mean that the school board, by prescribing a rule that graduates of its own high schools may be admitted without examination, while graduates of other schools must submit and pass reasonable examinations as to their qualifications, is unjustly discriminating against the graduates of such other schools. The two methods of testing the qualifications of applicants relate to different conditions, and both are reasonable.</p> <p>2. -: -: Examination: Discrimination: Limited to Highest Grades. A school board does not have the right to exclude applicants to a public high school, which is a free school in the constitutional sense, by a system of competitive examinations whereby admission is made dependent, not upon the applicant’s ability to pass a better examination than other applicants, but to make “the highest averages in the examination.” That would be an unjust discrimination. But query: Can one who has not-passed or submitted to any examination raise the point that a rule limiting entrants to those who have made “the highest grades in the examination” is unjust discrimination against her?</p> <p>3. --: Teachers’ College: Entrants Limited to Highest Grade: Reasonable Regulation. A rule of the school board requiring those who desire entrance to a teachers’ college to submit to a reasonable examination as to their qualifications and declaring that “from those passing the examination the number admitted to the college will be determined by the prospective need of new teachers in the ' public elementary schools of St. Louis and. will be made up of those making the highest averages in the examination” is not an unreasonable regulation or an unconstitutional discrimination. The teachers’ college, even though it be supported by the public school fund mentioned in the Constitution, is not a public school in the same sense that elementary schools are public schools — open alike to all students of school age — but is one of limited attendance, and being such the school board may exercise a reasonable discretion in 'prescribing the terms by which the number may be limited, and if its rule is free from arbitrary and unreasonable prescriptions it is not subject to judicial alteration. A teachers’ training school is not maintained primarily for the immediate benefit of the students therein, but for the purpose of obtaining a sufficient force of trained teachers based upon the needs and requirements of the grade and high schools.</p> <p>4. -:--: Power of Board to Maintain. A teachers’ training school, if not a part, is at least a permissible instrumentality, of the public school system of a great city, and the School board, in maintaining the system, has, at least, an implied power to expend such an amount of the school funds in training teachers as the best interests and the necessities of the public schools in the city require.</p>

<p>1. COURTS: Adjournment Over Date of Next Statutory Session. Courts can exercise judicial functions only when lawfully in session. A circuit court may not adjourn to a time at or after which its own next term in the same county begins, but the circuit court in one county may adjourn to the date or beyond the date fixed for the next term in another county of the circuit.</p> <p>2. -:-: Automatic Termination by Another Term in County. • The statute provides for five terms of the criminal court of Jackson County annually, "three of which shall be held’’ in Kansas City< and two in Independence. On November 3rd the September term at Kansas City was adjourned to Monday, November 5th, and continued thenceforward from day to day. Said November 5th was the day the statute fixed as the day of beginning the November term at Independence. Held, that the Independence term is not in such sense a term of the same court that the arrival of the day fixed by statute for it to begin automatically terminated the next preceding term at Kansas City, and proceedings thereafter at Kansas City as of said September term were not on account of the arrival of the time for holding the Independence term coram non índice or void.</p> <p>3. -: Two Divisions: Statute Not Clear: Judicial and Legislative Acquiescence. Where the criminal court of a county has two divisions and provides that court be held in two cities therein, but expressly provides that both divisions shall not be in session in one of the cities at the same time, and that the judge of Division Two may hold court in such city “whenever, in the opinion of the judges and the prosecuting attorney, his assistance shall be needed for holding court at” such city, which seems to mean that the judge of the other division who is being assisted may at that time be holding court in said other city, the ambiguity of the statute, which is not clear, opens the way for the construction given it for a long time by those charged with its administration, to the effect that sessions of the court in one of the cities may overlap sessions in the other, and that rule of construction, the supervising courts and the Legislature having long acquiesced therein, is strong evidence of the statute’s true meaning.</p> <p>4. -:--: Different Records: Transfers. The fact that the criminal court of a county has two divisions and two judges, with different records and different clerks, and that writs are “returnable to the court held at the place at which said writ or other process is attested,” has an important relation to the question of whether a session in one of the cities in which the statute authorizes court to be held is automatically terminated by the arrival of the .time fixed by the statute for the beginning of a term in the other city. In such case, the terms at the two cities are as distinct as terms of the circuit court in different counties. And the fact that cases may be transferred from one division to the other or from one city to the other does not affect the question.</p>

Mandamus. (1) Even if it be found that the ordinance calling the election was not properly adopted, or was not signed by the mayor, or both, yet it was… Held: that in the absence of fraud, this did not invalidate the election. State ex rel. v. Allen, 178 Mo. 576; State ex rel. v. Westport, 116 Mo. 582. (c) Conversely, holding an election in only one of several wards in a city did not, in the absence of fraud, invalidate the election. Light & M. Co. v. Lebanon, 163 Mo. 246.