Volume 28 — Missouri Appeal Reports

Richard Field, Judge. I. The court erred in refusing instruction number six on the part of plaintiff. The defendant expressly stated, on cross-examination, that he relied solely and exclusively upon the provisions of the stock law for all claims or lien to the stock in controversy, and the evidence failed to show any comjjliance with the provisions of that law, but, on the contrary, did show that he had not complied therewith.

Chas. W. Sloan, Judge. The case is stated in the opinion. I. The court erred in refusing appellant’s motion to make answer definite, by striking out the allegation ‘ ‘ denies each and every other allegation not hereinafter specifically admitted.” Long v. Long, 79 Mo. 649. II. The court erred in refusing the motion to strike out the defence based on the limitation clause of the policy.

E. L. Edwards, Judge. The case is stated iu the opinion. Held: as did the justice, that the paper filed and printed, as respondent’s abstract, though putting in issue the facts stated in the affidavit, was an appearance to the merits, and that appellant had waived his right to the trial upon the plea in abatement. The circuit court seemed to regard the rulings of the justice as res adjudicada.

Elijah Robinson, Judge. The case is stated in the opinion. I. Defendant was not liable for any damage or injury to the cattle, caused by being overloaded, by being crowded in the cars, or by reason of tramping upon and injuring each other. (1) It would not be liable for such damages in the absence of a contract. Hutchinson on Carriers, sects. 217, 222, and authorities cited; Penn ?>. Railroad, 49 N. Y. 204.

Elijah Robinson, Judge. The case is stated in the opinion. I. The court erred in sustaining the demurrer to the petition. There is no defect of parties plaintiff. The heirs of Wm. Cross white, deceased, are the only-necessary parties to maintain this suit. The petition alleges that the administration on the estate of Wm. Crosswhite, deceased, has been closed and fully settled; that all the debts allowed against the same have been > paid off and discharged.

Ciiakles W. Sloan, Judge. Statement of case by the court. This is an action for seduction. The petition alleges, that the plaintiff’s daughter, Ollie Bailey, under the age- • of eighteen years, was seduced by the defendant on or about the first day of November, 1883, in consequence of which she became pregnant, and gave birth to a child on the sixteenth day of July, 1885. The action is per quod servitium amisit.

<p>1. Practice, Trial, Appellate — Discretion.—The extension of time within which pleadings are required to be filed is discretionary with the trial court, and appellate courts will not interfere unless such discretion appears to have been abused.</p> <p>2.--Oral Motions Inadmissible. — Appellate courts will not review the propriety of the action of a trial court in overruling a motion to strike out parts of a pleading where no written motion is preserved in the record.</p>

Louis Circuit Court, Daniel Dillon, Judge. A conditional subscription is valid, and unless the condition is performed there is no contract, and the subscriber can not be held to the liabilities of a stockholder. Thompson on Stockholders, sect. ,116; Chase x. Railroad, 38 111. 215; Railroad x. Boestler, 15 Iowa, 555; Jewett x. Railroad, 10 Ind. 539 ; Railroad v. Dunn, 39 Me. 587, 595; Railroad x. Iliclcman, ¡28 Pa.

Louis Circuit Court, Leroy B. Valliant, Judge. The finding by the court below of a judgment for thirty-five dollars in favor of the respondent is erroneous, as it is based upon a quantum meruit, and not upon the contract. Williams 'o. Porter, 51 Mo. 441 ; Teats v. Valentine, 56 Mo. 530 ; Fyerman v.- Cemetery Ass’n, 61 Mo. 489 ; Legg v. Qerardi, 22 Mo. App. 149; Mansur v. Pools, 80 Mo. •651.

<p>Appeal from the St. Louis Circuit Court, James A. Seddon, Judge.</p> <p>A judgment is not a contract within the meaning of the statute which makes all contracts several. Rea v. Hv/rlbert, 17 111. 572 ; Wyman v. Mitchell, 1 Cow. 321; Todd v. Crumb, 5 McLean, 172; Smith v. Harrison, 33 Ala. 706 ; Burnes v. Simpson, 9 Kan. 658. And all the judgment defendants must be made parties. Simpson v. Watson, 15 Mo. App. 425; Pratt v. Bow, 56 Me. '81; Qhristey v. Tancred, 9 Mees. & W. 438.</p> <p>A judgment is a record contract. Evans v. Eisher, 26 Mo. App. 544; 2 Black. Com. 464-5 ; 2 Chitty PL 176 ; 1 Chitty Cont. 87; Headly v. Roby, 6' Ohio, 521, 523; Shelburn v. Eldridge, 10 Yt. 123. A judgment is a contract, or, perhaps, more accurately speaking, a contract arises out of the judgment by operation of law, where the defendant is competent to contract; and an action at law, for the sum found due by such judgment,, is based upon such contract. Stuart v. Lander, 16 Cal. 372 ; Cocks v. Bernhardt, 11 M. & W. 51; Pennington v. Gibson, 16 How. [57 U. S.] 65, and cases there cited; Lawrence v. Martin, 22 Cal. 174; 1 Estes’ Pleading, sect. 785, and cases there cited; Burnes v. Simpson, 9 Kansas, 658; Thompson v. Jameson, 1 Cranch. 282; Johnson v. Butler, 2 Iowa, 535; Taylor v. Root, 4 Keyes, 335; McDonald r>. Butler, 3 Mich. 558; Freeman on Judgments [3 Ed.] sect. 217.</p>

<p>1. Attachment — Officers—Title to Goods Seized — Replevin.—A constable acquires a special property in goods seized by Mm under a valid writ of attachment, which will enable him to maintain replevin for them against any one except the true owner, if such owner be not the defendant in the attachment.</p> <p>2. Evidence — Hearsay — Unsworn Declarations. — Unsworn declarations by one in possession of chattels as to the character of his holding, are admissible in evidence against Mm and those holding under him, but not against strangers.</p>

Louis Circuit Court, Leroy 33. Valliant, Judge. The countersignature of the comptroller is necessary to the validity of a special tax bill. Prendergast v. Richards, 2 Mo. App. 190 ; Kiley v. Oppenheimer, 55 Mo. 374 ; s. c¡, 79 Mo. 448. Constitutive facts must be alleged and proved.

<p>Benevolent Associations — Change of Beneficiary. — Under the laws of a benevolent association which provide that the supreme lodge can alone issue a benefit certificate and that a member has the exclusive right to change the beneficiary, which he may do by surrendering the certificate to the subordinate lodge and the payment of a fee of fifty cents, the rights of the new beneficiary attach immediately upon such surrender of the old certificate and the payment to the subordinate council of the fee.</p>

<p>Appeal from the St. Lonis Court of Criminal Correction, E. A. Noonan, Judge.</p>

<p>Appe'al from the St. Louis Circuit Court, Si-iepard Barclay, Judge.</p> <p>A written contract, to be binding, must be delivered, and takes effect only from delivery. Bunsen v. Huntington, 21 Mich. 415. This is true, whether the instrument be un.der sealjor not, and whether it be a deed, a promissory note, or any other written contrae^. 4 Kent Com. (9 Ed.) *454; Smith .Cont. [2 Eng. Ed.] 6; 1 Chitt. Cont. [11 Am. Ed.] 4; Hawkes v. Pike, 105 Mass. 560 ; Watkins v. Wash, Law Rep. 20 Eq. 261; McPherson v. Meek, 30 Mo. 347 ; Williams v. Williams, 67 Mo. 665; Carter v. McClintock, 29 Mo. 464. To constitute delivery, the writing must, in some way, pass beyond the control of the maker. Johnson v. Parley, 45 N. H. 505; Renard v. Walker, 39 111. 413; Cook v. Brown, 34 N. H. 460; Canfield v. Ives, 18 Pick. 253; Rutledge v. Montgomery, 30 Ga. 899. Moreover, there must be an acceptance of the delivery, express or implied. Johnson v. Parley, 45 N. H. 505 ; Curtis v. Gorman, 19 111. 141; Carey v. Dennis, 13 Md. 1; State v. Oden, 2 Har.. & J. 108. To constitute an acceptance the acceptor must do some- overt act. Conklin v. Cabanne, 9 Mo. App. 579. “An offer and acceptance constitute a bargain. The acceptance, however, must be unconditional.” Stotesburg v. Massengale, 13 Mo. App. 226. “An acceptance qualified with a condition does not bind the other party to the correspondence.” Palls Wire Co. v. Broderick, 12 Mo. App. 378; Breicheisen v. Coffey, 15 Mo. App. 84.</p> <p>The acceptance was evidenced by an endorsement thereof on the offer and a deposit of the money to be paid thereunder. Wiggins Perry Co. v. Railroad, 73 Mo. 389. And that notice of the acceptance was not received by the offerer is immaterial. Insurance Co. v. Grant, 4 Ex. D. 216; Howard v. Daly, 61 N. Y. 365.</p>

Louis Circuit Court, Leroy B. Yalliant, Judge. It is competent for the plaintiff in a divorce suit to testify to con, versations between himself and the defendant, when no. one else was present. Rev. Stat., 1879, sect. 4010 Moore v. Moore, 51 Mo. 118; Paul v. Leavitt, 53 Mo. 597; Harrier v. Harrier, 58 Mo. 234. The common-law rule in reference to conversations between husband and wife when they are opposite parties has been repealed in this state.

<p>Appeal from the Ralls County Circuit Court, Thomas H. Bacon, Judge.</p>

Louis Circuit Court, George W. Lubke, Judge. The motion to dismiss should have been sustained, as no copy, of the complaint was served on the defendant, and the summons was fatally defective in failing to state “the nature of the suit.” Laws Mo: 1883, p. 104; Hill v. Railroad, 90 Mo. 105-6; Gates n. Eastland, 89 Mo. 13; Haley v. Railroad, 80 Mo. 112; Rev. Stat., 1879, ■ sect. • 2858.

<p>1. Landlord and Tenant — Implied Agreements — Repairs.—A renting does not imply an agreement that the premises let are ñt for occupancy, nor is a landlord under any implied obligation to the tenant to repair the premises.</p> <p>2. - As to third persons, the landlord is responsible for injuries caused by the bad condition of such parts of the premises as are in his possession,</p> <p>3. - Where a part of a tenement-house is let, the main wall remaining in the exclusive possession of the landlord, the tenant, as to this wall, occupies the position of a stranger to the landlord, and may recover from him damages for injuries to his property caused by the falling of the wall through the landlord’s negligence.</p> <p>4. -Lewis, P. J., holds that, while the rule is correctly stated, its application to the facts is erroneous, and that the decision is opposed to a decision of the Supreme Court.</p>

<p>Quo Warranto — Case Adjudged. — The circuit court has jurisdiction, and is invested, by statute, with all the necessary machinery for the determination of this controversy, and no fact is stated which would justify this court in turning aside from the consideration of its ordinary business to hear this case on the facts and the law.</p>

<p>Error to Jackson Circuit Court, Hon, Turner A. GrILL, Judge.</p> <p>The case is stated in the opinion.</p>

E. M„ Hughes, Judge. Statement of case by the court. This case was' tried by the court on the following agreed statement of facts: “ On the third day of April, 1883, Mrs. Laughlin, a married woman, was the owner of the land in controversy, situated in Monroe county.

John P. Stbotheb, Judge. Statement of case by the court. Plaintiff commenced suit by attachment against L. I). Alexander, returnable to the May term of the circuit ■court, and caused the Boston Underwriters Insurance Company to be summoned as garnishee. The usual interrogatories were filed May 9, 1888. On July 30, 1883, the garnishee filed answer to the interrogatories, denying any indebtedness to Alexander.

Error .to Cooper Circuit Court, Hon. E. L. Edwards, Judge. The case is stated in the opinion. I. The court erred in refusing to permit the wife of defendant to testify as a witness in the trial of this cause. Plaintiff can hold defendant liable solely on the ground of her agency. Tuttle v. Hoag, 46 Mo. 38 ; Harshaio v. Merrymani, 18 Mo. 106. That being true, she is a competent witness. Rev. Stat., sect. 4014.

Noah M. Gtvan, Judge. file case is briefly stated in the opinion of the court, I. Tbe defendant justified bis right to restrain the cattle in controversy by virtue of tbe provisions of an act to restrain domestic animals from running at large (Sess. Laws, 1883, pp. 24, 26, 28), and tbe burden was upon bim to prove its adoption, in tbe manner provided in tbe act, by tbe voters of Johnson county. Sess. Laws, 1883, pp. 26, 28.

<p>Appeal from. Linn Circuit Court, Hon, Gr. D. Burgess, Judge.</p> <p>The case is stated in the opinion. •</p> <p>I. It is insisted on behalf of the appellant that the circuit court erred in the trial of this cause. (1) In the submission of issues to the jury. (2) In refusing to give to the jury the defendant’s third and fourth instructions. (3) In overruling defendant’s motion for a new trial. (4) In making a finding and entering judgment on matters not set up in the petition on which the case was tried. (5) In directing and causing plaintiffs’ at-, torney to file an amended petition totally changing their alleged cause of action from that set up in the petition on which the trial was had.</p> <p>II. The pleadings did not authorize the submission of the issues to the jury. The objections to that action of the court made by defendant at the trial ought to have been sustained.</p> <p>III. The defendant’s fourth instruction should have been given. A mere voluntary promise to give-something, or pay something, is not binding. A promise, tobe valid and effectual, must be based on some good or valuable consideration. This elementary doctrine, contained in the refused instruction, should have been applied to the facts in this case as disclosed by the evidence. 1 Story on Contracts [4 Ed.] sects. 426, 427; 1 Parsons on Contracts [5 Eel.] 427, 430.</p> <p>IV. The motion for a new trial should have been sustained for several reasons: (1) It stands admitted by the pleadings, and it was in no wise questioned by the plaintiffs, that two of the children of Martha San-dusky, deceased, were not joined either as plaintiffs or defendants in the suit; and the suit was improperly prosecuted without making all the parties jointly interested parties thereto. Rev. Stat., sect. 3466 ; Bliss on Code Pleading, sects. 24, 61, 62; . Whittlesey’s Prac. 113; Little v. Harrington, 71 Mo. 390. (2) Notwithstanding the two heirs jointly interested with plaintiffs were not made parties, the court made its findings and rendered judgment, as if they had been united in the suit with the other heirs.. (3) There was no sufficient evidence to uphold the finding of the court. (4) The finding of the court was not predicated upon any pleadings in the cause.</p> <p>V. The petition presented a case of an equitable-nature, but the court proceeded with it as if it were an action at law on a simple contract. In this the court erred. The court is limited with respect to the course and manner of the trial, and the relief it may afford, •to the pleadings in the cause. Bliss on Code Pleadings, sects. 159-163.</p> <p>VI. Resort cannot be had to the amended petition to uphold the judgment rendered. The statute did not authorize such amendment. Rev. Stat., sect. 3570. The -amended petition abandoned the cause of action and tlie character of the action as presented in the original petition, on which the cause was tried, and stated a new cause of action. Sturges n. Bolts, 24 Mo. App. 282.</p> <p>I. It is insisted on behalf of the respondents that the court did not err in the trial of this cause ; either (1) in the submission of issues to the jury; or (2) in refusing to give to the jury the defendant’s third or fourth instruction; or (3) in overruling defendant’s motion for a new trial; or (4) in making a finding or entering judgment thereon in the case ; or (5) in directing or causing (if the same was done by the court) plaintiffs’ attorney to file an amended petition in the case.</p> <p>II. The pleadings did authorize the submission of the issues to the jury. In support of the action of the court in that particular the following authorities are referred to : Rev Stat. sect. 3601; Hamilton n. Hamilton, 59 Mo. 232; McCullough v. McCullough, 31 Mo. 226 ; Burt v. Rynex, 48 Mo. 309. In the last-named case the court say : “The exercise of the discretion is not ground for error, unless the party has plainly been injured by it. But the court is not bound by the finding as it would be by a verdict at law. It may adopt it or not at its discretion.”</p> <p>III. The defendant’s third and fourth instructions were properly refused. The third was fully embraced in his second, which was given, and so it might be said of his fourth. Defendant’s fourth instruction was properly refused for other reasons: (1) It implied that there was a contract in issue between the parties, when there were none of the elements of a contract. (2) The word “owe” used in the instruction was calculated to mislead, being generally used to signify an indebtedness by contract. (3) Because he was virtually estopped by the uncontradicted evidence of plaintiffs’ witness and by the written memorandum signed by himself, stating plaintiffs’ share in their grandfather’s estate which he held for them. As to the estoppel reference is made to: 1 Phillip’s Evidence (4 Ed.) 543; 1 Greenleaf’s Evidence (7 Ed.) sect. 207,; banal Go. x. Hathaway, 8 Wend. 480 ; Frost x. Ins. Go., 5 Denio, 154.</p> <p>IY. Defendant’s motion for a new trial was properly overruled. (1) Because defendant’s amended answer, setting up a defect of parties plaintiff, was filed too late. State ex rel. x. True, 20 Mo. App. 176 ; Murphy x. De France, 23 Mo. App. 337 ; Thompson x. Railroad, 80 Mo. 521. (2) Even if the defendant’s answer, setting up defect of parties plaintiff, were not filed too late, and for that reason his motion for a new trial should have been sustained, yet the remittitur cured the defect in the verdict and judgment, and the error was harmless — in fact, the defendant was benefited to the amount of the remittitur, for the omitted parties are now barred by the statute of limitation. Rev. Stat., sect. 3569.</p> <p>Y. The court did not proceed as if the case were an action at law on a simple contract. The petition concluded with a general prayer for relief, and the answer was a general denial. Under that state of pleadings the court could give the plaintiffs the relief to which they showed themselves entitled. A court of equity having once acquired jurisdiction will proceed to do complete justice between the parties. Holland x. Anderson, 38 Mo. 55; Nelson x. Betts, 21 Mo. App. 219.</p> <p>YI. The statute authorized the amended petition. The amended petition did not abandon the cause of action or the character of the action as presented in the original petition, but only that part of it which was not supported by the evidence. The case of Sturges x. Bolts does not apply.</p> <p>YII. If there is any error in the proceedings not .affecting the substantial rights of the appellant it should be disregarded. Rev. Stat., sect. 3569.</p>

Strother, Judge. Statement of case by the court. This case was in this court heretofore, and is reported in 19 Mo. App. 462. Held: in the opinion of this court, to constitute no defence. This part of the amended answer was, on motion of plaintiff, stricken out.

Louis Circuit Court, Daniel Dillon, Judge. A mortgagee is a purchaser for value. BrocJcing v. Straeb, 17 Mo. App. 303. The burden of proof was on the plaintiff to show that the interpleader had knowledge of the fact that the purchase price had not been paid. Albert v. Beset, 88 Mo. 150; Bolclcow Mill Co. v. Frazer, 22 Mo. App. 109.

Louis Circuit Court, James A. 'Seddon, Judge. The levying of taxes is a matter solely of statutory creation, and no means can be resorted to in order to coerce their payment other than those pointed out in the statute. Carondelet v. Picot, 38 Mo. 125. The statutory provisions in force, when the taxes now sought to be collected became delinquent, were: (1) as to personal taxes, section 8754, distraint; (2) as to taxes upon realty, section 6836, suit.

<p>.Appeal from the St. Lonis Circuit Court, Daniel. Dillon, Judge.</p> <p>The petition in'both counts states a good cause of action. Adams-v. Paige, 7 Pick. 542; Kelsey v. Murphy, 26 Pa. St. 78-82, et seq.; Aspenwall v. Jones, 17 Mo. 209-213; Penrod v. Morrison, 2 Pa. R. 126 ; Mott v. Danforth, 6 Watts, 304; Meredith v. Benning, 1 Hen. & Munf.. 586.</p> <p>According to the first count Heman took a deed of Ortel’s equity of redemption in the real estate. To foreclose' his deed of trust McHale sued both Heman and. Ortel,. and called upon them to defend. They defended. Because they defended McHale claims damages. Such an action can not be maintained. Cook v. Ohapman, 41 N. J. Eq.. 152; Oily v. Gas Light Go., 82 Mo. 349-357; Keber v. Bank, 4 Mo. App. 195 ; Oelrichs v. Spain, 15 Wall. 211-230 ; Bank v. Bank, 4 Mo. App. 505; Russell v. Farley, 105 TJ. S. 433.</p>

<p>Appeal from the St. Louis Circuit Court, Shepard Barclay, Judge.</p> <p>If the loss occurred after the respondent had arisen and left his berth, and all the evidence shows such to have been the case, the respondent was then the custodian of his own valuables, and the demurrer to the evidence should, therefore, have been sustained. Scaling v. Pullman Co., 24 Mo. App. 33 ; Bevis v. Railroad, 26 Mo. App. 19; Whitney v. Pullman Co., 28 A. & E. R. R. Cas. 147; Pullman Co. v. Gardner, 16 A. & E. R. R. Cas. 324. The respondent’s testimony establishes the fact that his own negligence directjly contributed to his loss, and for this reason, too, the demurrer to the evidence should have been sustained. Whitaker’s Smith on Negl. 324-28, notes. The instructions as to the appellant’s liability in case of theft by the porter were erroneous ; •and it was error to refuse the instruction asked by the appellant on this point. See authorities cited above ; also, Blum v. Pullman Co., 3 Cent. Law Jour. 591 ; Pullman Co v. Smith, 73 111. 360; Diehl v. Woodruff Car Co., 84 Ind. 474; Welch v. Pullman Car Co., 16 Abb. Pr. [N. S.] 262; Dargañ •». Pullman Car Co., 26 A. & E. R. R. Cas. 149 ; Lewis v. Sleeping-Car Co., 28 A. & E. R. R. 'Cas. 148; Batter son v. Yogel, 10 Mo. App. 235.</p> <p>An erroneous instruction on the measure of damages, which did the appellant no harm, is not reversible, error. Nance v. Metcalf, 10 Mo. App. 183, 191; Gaty v. Saclc, 19 Mo. App. 470,477-8. “The fact that the passenger retains the custody of his baggage relieves the carrier of his extraordinary liability as insurer only ; for all losses in •consequence of the negligence of, the carrier or his servants hé still remains liable.” Thompson on Carriers, 518. And the company is liable for the negligence of its ' servants. Railroad v. Katzenberger, 1 S. W. Rep. 4.</p>

Louis Circuit Court, Daniel Dillon, Judge. The amendment was properly made. Rev. Stat., sects. 2937, 2939; Ward v. Pine, 50 Mo. 38. The plaintiff, by proceeding with the trial on the theory that the amendment was properly made, waived his objections to the error, if. any. Wellman v. Dismukes, 43 Mo. 101; The State ex rel. v. Shelby, 75 Mo. 484; Vaughn v. Railroad, 17 Mo. App. 4, and cases cited; Merrill v. St. Louis, 88 Mo. 244.

<p>1. Insurance, Fire — Dissolution or Company. — An insurance company created under the laws of this state can not escape from the control of the statutes prescribing the conditions upon which 'insurance companies shall be dissolved, and the time when, in case of dissolution, their policies shall cease to be in force as continuing executory contracts.</p> <p>2. -Rights or Company and Assured. — The assured is entitled only to the amount of unearned premium at the date of the dissolution of the company, where the loss occurs subsequent to the decree of dissolution.</p> <p>3.--In such a case, that the property lies without the limits of the state is immaterial.</p>

<p>1. Mandamus — Justice op the Peace — Jurisdiction.—A justice of the peace will be compelled, by mandamus, to certify the cause to the circuit court, where an affidavit that the suit involves the title to real estate, as an issue therein, has been filed before the justice.</p> <p>2. -Landlord and Tenant. — That the affidavit is filed in a landlord’s summons suit is immaterial, where it controverts the tenancy.</p>

Louis Circuit Court, Shepard Barclay, Judge. It is within the scope of an attorney’s power to waive notice of appeal. McDonough r>. Daly, 3 Mo. App. 606; Hansen v. North, 14 N. II. 57; Heffernan v. Burt, 7 Iowa, 321. An attorney has power, by virtue of his position, to extend the time for taking an appeal. Hoffenbuth v. Muller, 12 Abt. Pr. (N. S.) 221. And he may stipulate that one case may abide another. Railroad v. Stephens, 36 Mo. 150.

Charles W. Sloan, Judge. The case is stated in the opinion. Held: to the doctrine of contributory negligence, as stated in the Kansas cases, supra. IV. The court erred in refusing the defendant’s second instruction. It states the law as declared by our own court in the cases cited supra.

<p>Attorneys-at-Law — Removal and Suspension From Office. — Under tlie statute concerning removals and suspensions from practice of attorneys, the alternative judgment of suspension should be rendered only where mitigating circumstances are shown, otherwise the only proper judgment is that of removal.</p>

<p>1. Practice, Appellate — Presumptions.—In civil actions, -where no instructions are asked or given, every presumption admissible under the testimony must be made in favor of the court’s findings of fact.</p> <p>2. Forthcoming Bond — Obligors—Estoppel. — The obligors in a forthcoming bond in replevin are estopped by the recitals of the bond from showing that the property therein alleged to be retained was never in their possession.</p> <p>3.--Damages. — In a suit upon such a bond the obligors are liable only for the value of the property at the date of the trial, and damages as in replevin, which value must be shown by legal evidence.</p>

Louis Circuit Court, George W. Lubke, Judge. In an action at law for a violation of trademark, special damages by loss of custom or otherwise must be proved ; and it can not be assumed that the goods sold by the defendant would have been sold by the plaintiff but for the defendant’s unlawful use of his trademark.

Louis Circuit Court, Anote M. Thayer, Judge. There was no-contract. Mrs. Ames never sold or agreed to sell the-furniture to Whedon. She never knew him as a proposed purchaser when the- verbal agreement was made to sell to Rea. Mfg. Go. v. Broderielc, 12 Mo. App. 378 ; Robinson v. Railroad, 75 Mo. 494. The subsequent promise to let Whedon have the furniture was coupled with a condition which was never fulfilled. Ralls Wire-Go. v. Broderielc, 12 Mo.

<p>1. Abatement — Ejectment — Unlawful Detainer. — The pendency of a suit in ejectment pan not abate a subsequent action of unlawful detainer brought by^the same plaintiff for the same land.</p> <p>2. Landlord and Tenant — Tenancy From Month to Month. — A tenant of a building in a city, who holds over after the expiration of his lease, is a tenant from month to month, and the tenancy is determinable on a month’s notice.</p> <p>S. -Notice to Terminate Tenancy. — A notice to terminate a tenancy from month to month, given one full month before the day on which the monthly tenancy expires and requesting the surrender of the xiremises on the day next succeeding its expiration, that being the day of the letting, is sufficient.</p> <p>4. -• Waiver. — The formal insufficiency of a notice to quit is waived by the tenant’s repudiation of the monthly tenancy and his refusal to quit on the ground that he has a tenancy for years in the premises.</p>

Louis Circuit Court, Daniel Dillon, Judge. In order to bind persons as partners it is unnecessary to show the partnership. It is sufficient to prove that they held themselves out as partners. Story on Partnership (6 Ed.) secs. 64-5; Rippey v. Evans, 22 Mo. 157; Gates v. Watson, 54 Mo. 585 ; Rimel v. Mayes, 83 Mo. 200. And the same principle applies with respect to their liability as assignees of a lease. Carter v. Hammett, 12 Barb. 262.

Louis Circuit Court, Hon. George W. Lubke, Judge. A contract for personal services must be fully performed before the servant or person employed can recover anything. Wood on Master and Servant, sec. 147, pp. 291, 293, and 294, note 2 ; Edwards on Bailments, sec. 437; Earp v. Tyler, 73 Mo. 617; Posey v. Garth, 7 Mo. 95; Henson v. Hampton, 32 Mo, 408; Caldwell v. DicJcson, 17 Mo. 575; Schnerr v. Lemp, 19 Mo. 40 ; Hamel v. Ereund, 17 Mo. App. 618 ; Downs v. Smit, 15 Mo.

<p>Appeal from the St. Louis Circuit Court, Hon. Leroy B. Valliant, Judge.</p> <p>In a lease which provides that the tenant is to pay ‘ ‘ all taxes, rates, and assessments whatsoever, which now are, or hereafter shall be, taxed, rated, or assessed against the demised premises, during the continuance of said term,” as in this case, the tenant is compelled to pay taxes which are assessed during his term, although they are not payable until the year following. Valle v. Fargo, 1 Mo. App. 344; Waterman v. Marleness, 2 Mo. App. 494 ;■ Doan v. Fallon, 3 Mo. App. 596. To excuse non-performance of an express condition in a contract, it must appear that performance could not, by any means, have been accomplished. Wheeler v. Ins. Go., 82 N. T. 543 ; 1 Whart. on Cont., sec. 311, and cases cited; Kramer v. Qook, 7 Gray, 550. Before the declarations of conspirators can be received in evidence against each other, the fact of such conspiracy must be established with reasonable certainty. And even when the conspiracy is established, “the declarations of a conspirator, or accomplice, are receivable against his fellows, only when they are in themselves acts, or when they accompany or explain acts for which the others are responsible, but not when they are in the nature of narratives, descriptions, or subsequent confessions.” 1 Taylor’s Evid., secs. 590-5, pp. 525-9 ; United States ¶. Gooding, 12 Wheat. 469; Reg. v. McKenna, Jr., Cir. Hep. 461.</p> <p>The stipulation in the lease concerning removal of improvements was a mere allowance, and only good after all rent and taxes were paid by the lessee, and only good during the term of lease; and, as already argued, respondent had not paid all the taxes, as she was obliged to pay, for to avail herself of the right of removal of the improvements in question during the stipulated time, therefore, she has forfeited said right. Moreover, the evidence and testimony in said case show that, from the expiration of said lease up to the trial of said case, the said improvements have occupied the lessor’s ground, and that respondent has neither offered nor tendered to said lessor to pay any compensation of said lapse of overtime of occupation of said ground. Kelly v. Olancy, 15 Mo. App. 519. The judgment against R. W. Zeppenfeld for costs was erroneous. Declcer v. Lidwell, 3 Mo. App. 586.</p> <p>The courts do not favor forfeitures, and will not construe the language of parties to bring about a forfeiture when it is capable of a different interpretation. Livingston v. Tomphins, 4 Johns. Ch. 415; Warner v. Bennett, 31 Conn. 468; Smith v. Jewett, 40 N. EL 534. Where the petition distinctly charges fraud against a defendant, his unexplained failure to testify to his own innocence will raise a strong presumption against him, and this .whether he was subpoenaed by the opposite party or not. Maberry v. McClurg, 74 Mo. 575; Baldwin v. Whitcomb, 71 Mo. 651, 658; Cdss County v. Oreen, 66 Mo. 498, 512; Kelt v. Hatcher, 58 Mo. 239; Henderson v. Henderson, 55 Mo. 539. The proof showed that the taxes could not be paid before the expiration of the lease. In equity, time is not of the essence of the contract, and it will relieve against a non-compliance with the terms as to time, where it would be inequitable for a party to take advantage of a forfeiture, and where the damage done by the default can be measured in money. O'Fallon v. Kennerly, 45 Mo. 124.</p>

<p>Appeal from the St. Louis- Circuit Court, Hon.. Shepard Barclay, Judge.</p>

Louis Circuit Court, Hon.. Daniel Dillon, Judge. (1) The answer, if true, sets up a good defence to the plaintiff’s action.

<p>1. Practice — Dismissal by Plaintiff, After Appeal from Justice’s Court. — A plaintiff, having appealed from the judgment of a justice, may, in the circuit court, dismiss his cause ; and this right will not he affected by the fact that the court has previously dismissed the appeal for want of prosecution, which dismissal was subsequently set aside on the plaintiff’s motion.</p> <p>3. -- Appeal— Notice, Effect of Failure to Give.— An omission by the appellant from a justice’s judgment to give proper notice of his appeal creates no failure of jurisdiction, but only a. failure to prosecute the appeal.</p> <p>3. --Non-suit, no Appeal from, nor from Beinstatement. . A defendant cannot appeal from a voluntary non-suit, nor from a. reinstatement of the cause after dismissal.</p>

<p>1. Attachments — Priority.—Where there are several attachments against the same defendant, the writ first levied is prima facia entitled to priority in satisfaction, regardless of the order in which the writs came to the hands of the officer. But when two or more of such writs come into the hands of the same officer, it is his duty to levy first the one first received. If he violates this rule, it is at his peril, and the court may, under Revised Statutes, section 447, restore the rights of the party prejudiced.</p> <p>2. Sheriff — Return Must Conform to Facts. — A sheriff must not, in his return on a writ of attachment, misstate the facts, even though the result may tend to secure the true legal rights of the parties.</p> <p>8.--- False Return. — If a sheriff returns that the levies on two several writs were cotemporaneous, when, in fact, one levy was precedent to the other, the plaintiff whose writ was first levied may maintain an action against the officer for a false return. If, however, the levy thus made was wrongly precedent, ■ there can be no recovery of substantial damages.</p> <p>4. Sheriff’s Deputies — Priority of Acts, as Between. — The acts of a sheriff’s deputies must be regarded as the acts of the sheriff; and a struggle for priority of action between two deputies can effect nothing on the ground of superior diligence, as to any rights of the parties in litigation.</p>

Louis Circuit Court, Hon. George W. Ltjbke, Judge. The defendant, having disclosed an irresponsible and impossible principal (if any) his liability was not that of agent, but was personal. Blakely v. Bennecke, 59 Mo. 193 ; Heath v. Goslin, 80 Mo. 316; Story on Agency, secs. 281, 282 ; Hoseys. Pitcher, 13 Mo. 191; Thompson s. McGullough, 31 Mo. 224 ; McClellans.

<p>1. Fraudulent Purchase — Intent not to Pay. — A vendee’s knowledge, when purchasing goods on a credit, that he will not be able to pay for them, is tantamount to an intent not to pay for them.</p> <p>2. False Representations — When Inadmissible — Other Acts or Purchaser. — Misrepresentations by an intending purchaser of goods, as to his financial condition, are not admissible in evidence, when not shown to have been communicated to the seller. But previous, contemporaneous, or- subsequent acts of the purchaser, having a natural tendency to explain his motives in the purchase, may be inquired into. Manheimer v, Harrington, 20 Mo. App. 301, re-affirmed. (Thompson, J., holds the misrepresentations admissible in this case, as tending to show the purchaser’s preparation for the commission of a fraud).</p> <p>3. Deposition Offered to Show Admissions —When Inadmissible. A deposition given by a p>erson in another cause, after he has confessed judgment in favor of creditors, cannot be used to prove admissions by him prejudicial to rights claimed under the judgments.</p>

Joseph P. Grubb, Judge. Statement of case by the court. This is an action in replevin for the recovery of the-possession of certain personal property. The facts areas follows: On the fourth day of May, 1884, one W. C. Everett sold to one. Stephen Gaucher the property in controversy, for which Gaucher executed to Everett his-promissory note. To secure this note, Gaucher executed, on the same day, a chattel mortgage on the property to Everett.

Oliver M. Hpenoer, Judge. The case is stated in the «opinion. I. The second reason alleged in the motion for ■affirmance (in the circuit court) is settled by the record. The judgment was rendered on the twenty-fourth of May, 1886, the appeal was allowed on the twenty-fifth of May, 1886, and the transcript filed in the circuit clerk’s office on the twenty-eighth of May, 1886 — all of which appears .on the record. Besides this point was- not urged below. II.

Elijah Robinson, Judge. The case and facts are stated in the opinion of the court. I. The evidence fails to show any such- connection of the firm of W. H. Woodward & Son with the transaction as would make it a partnership matter so as to bind defendant, Henry Woodward, and the judgment against him was improper. 1 Lindley on Partnership (Ewell’s Ed.) 309 ; Qayton v. Hardy, 27 Mo. 536.

Charles W. Sloan, Judge. The case and facts are stated in the opinion of the court. I. The alleged sale was not accompanied by a delivery of the possession and followed by an actual and continued change in the possession of the property attempted to be sold, and was, as to the vendor’s existing creditors, void, notwithstanding it was in good faith and for value. Qlafiin v. Rosenberg, 42 Mo. 439; Lesem v. Herriford, 44 Mo. 323; Howe 'll.

Noah M.,Givan, Judge. Statement of case by the court. This is a suit brought by plaintiff as a real-estate' broker and agent, upon a contract made by defendant with him for the sale of certain land. The petition alleges the sale of the land in accordance with the contract and asks judgment for the amount of the contract commission.

Turner A. Gill, Judge. Statement of case by the court. This is an action of forcible entry and detainer, begun before a justice of the peace, and removed by certiorari to the circuit court. At the close of the plaintiff’s case a demurrer to the evidence was sustained and defendant appeals.

Lafayette Circuit Court, Hon. John P. Strother, Judge. Statement of case by tlie court. 'This was an action of replevin begun before a justice of the peace for the recovery of the possession of two horses. The defendant claimed the property under a mortgage with a power of sale, in the usual form, executed by the plaintiff to secure the payment of a promissory note made by the plaintiff, payable to the order of James Bumgarner, and assigned by said payee to the defendant.

James M. Sandusky, Judge. The case is stated in the opinion. I. When defendants proved that there was fraud in the inception of the note, the onus probandi was cast upon the plaintiff to show that he acquired the note bona fide, for value, in the usual course of trade while current. Cass Co. v. Green, 66 Mo. 498; Edwards v. Thomas, 66 Mo. 468; 1 Daniel Neg. Inst.,sec. 769a. II.

James B. Gantt, Judge. Statement of case by the court. This action was begun before a justice of tte peace, ,to recover damages for the killing of plaintiff’s cow.

<p>Practice — Dismissal of Appeal for Failure to Comply with Rule 15, op this Court — Case Adjudged. — Where no abstract of the record was filed (as in this case), and it is manifest that there is no bill of exceptions filed timely in the cause ; and where, from the brief of the appellants, it appears that if there is any reversible error, it arises on the face of the petition — and they have not set out the petition— this court will' not go to the transcript of the record to ascertain what the averments of the petition are.</p>

Turner A. Gill, Judge. Statement of case by the court. This is an action for fraud and deceit.

<p>1. Statute oe Frauds — Promise to pay the Debt oe Another. — A direct promise to pay for goods to be sold to a third party is an original undertaking, and need not be in writing. But where it is understood that the account is to be made against the purchaser, and that the seller is to collect the money from him, if possible, before demanding it of the promisor, the promise is collateral, and is not enforceable without a writing.</p> <p>a. Practice — Insueeiciency oe Prooes. — Where the plaintiff’s own testimony is inconclusive, and that given by all his other witnesses makes a clear case of collateral undertaking, there is not sufficient evidence .of a direct promise to be submitted to a jury.</p> <p>3.--Verdict Contrary to Evidence. — Where all the testimony distinctly proves one side of an issue, and the jury find in favor of the other, the verdict should be set aside.</p>

<p>1. Trademark — -Words in Common Use. — Ordinary English words in common use, as descriptive of a particular article, cannot be exclusively appropriated as a trademark by one dealing in such article.</p> <p>2.--Not Essential to Right oe Protection. — A dealer may have no proper trademark, and may yet be protected in equity against fraudulent imitations of his packages, calculated to deceive purchasers into the belief that they came from such dealer.</p> <p>3. Fraudulent Imitation oe Packages and Parcels. — Where a dealer has continuously, during a long period, put up his wares for sale in packages or parcels of uniform and distinguishable shape, size, and contents, with marks or brands similarly distinguishable and uniform, equity will restrain another dealer from adopting the same or closely similar characteristics in his packages or parcels, to the trade piracy and injury of the one who first employed them.</p>

<p>Appeal from the St. Louis Circuit Court, Hon. Amos M. Thayer, Judge.</p> <p>The petition fails to state a cause of action. Stix «. Matthews, 75 Mo. 96 ; Clements v. Teates, 69 Mo. 625 ; Field v. Fail-road, 76 Mo. 614 ; PJleger v. Weltne, 21 Mo. App. 580 ; Saulsbury v. Alexander, 50 Mo. 142 ; Staley v. Wallace, 21 Mo. App. 128; Stale v. Foberts, 62 Mo. 388. Books of accounts are not evidence. Hissriclc v. McPherson, 20 Mo. 310; Anderson -a. Volmer, 83 Mo. 403; Cozzens v. Barrett, 23 Mo. 544; Hanson n. Jones, 20 Mo. App. 587: If plaintiff made a mistake in paying the money, it ought to make it appear that it was not equitably due. Foster v. Kirby, 31 Mo. 496. The question is whether the plaintiff has paid money tO' defendant by mistake, which is not rightfully his. Dobson v. Winner, 26 Mo. App. 335.</p> <p>The petition is consistent and states a cause of action. The evidence supports the cause of action stated. The petition follows Hanson v. Jones (20 Mo. App. 596), and Lyle v. Shinnebarger (17 Mo. App. 76). The books were shown to the jury as the only evidence that the entry of the payment of $923.64 was never made on the company’s books, and that the amount paid, which was conclusively shown to have been paid to Quade by the voucher signed by him, was not considered in the final settlement closing out the dealings with the Danville office. The voucher proved the payment. The face of the books showed the mistake and how the mistake originated. The books were not offered to prove any item on the books as against Qnade. As defendant’s instructions given do not appear in the record, this court must presume that they were correct, and sufficiently presented to the jury the issues on behalf of thé defendant.</p>

Louis Circuit Court, Hon. George W. Lubke, Judge. Tbe coal-hole being a lawful feature of tbe sidewalk, the ordinary rule in regard to negligence applies. Tbe failure to keep tbe covering in place was not per se negligence on tbe part of appellant. At most, it could only be required to exercise proper care. Fisher v. ThirTcell, 21 Mich. 1; Beardsley v. Swan, 4 McL. 333; 1 Thompson on Negligence, sec. 7, p. 345.

<p>1. Promissory Note — Inadmissible Defences. — The maker of a promissory note cannot defend in a suit by a transferee, on the ground that the transfer was without consideration, or was in fraud of the payee’s creditors.</p> <p>2.--Payment to Payee After Transfer. — The maker of a note will not be protected in any payment to the payee or Ms representative, after notice of the transfer.</p> <p>3.---Payee’s Administrator Cannot Question Transfer. — The administrator of a deceased payee, although also a judgment creditor of the estate, cannot disaffirm his intestate’s transfer, or recall to himself the title of the note.</p> <p>4. Practice — Objections not Available in Appellate Court. — A cause having been tried below on the theory of a loss of the note sued on, the objection that there was no proof of such loss cannot be raised for the first time in the appellate court. Nor can the objection be so raised that no indemnity bond was tendered, as required by the statute.</p>

<p>1-. Sheriff — Duties Concerning Attached Property — Subrogation , of Attachment Plaintiff to Rights of Successful Claimant, When Proper. — The sheriff levied an attachment upon property which the debtor had previously assigned by a valid instrument, that was duly recorded. The assignee claimed the property, whereupon an indemnifying- bond was given by the attachment plaintiffs, who are plaintiffs in the present proceeding. The sheriff sold the property under an order of court, realizing as proceeds more than enough to satisfy the attachment, and paid over the surplus to the attachment debtor. The assignee sued these plaintiffs on their indemnifying bond, and recovered judgment for all the proceeds of the sale, which judgment was paid by the plaintiffs. The plaintiffs then moved for an order directing the sheriff to pay over to them the proceeds of the sale. Held : (1) The sheriff had notice that the attachment debtor had no claim on the property or its proceeds, and his payment to him of the surplus was wholly unauthorized. (2) The plaintiffs, having satisfied the judgment on the indemnifying bond, were entitled to be subrogated to the assignee’s claim upon the property or its proceeds, (3) Under Revised Statutes, section 425, the court was warranted in making the order, moved for, as a proper disposition of the fund.</p> <p>2. Practice — Frivolous Appeal. — When an appeal is wholly unwarranted, the judgment should be affirmed, with ten per cent, damages.</p>

Louis Circuit Court, Hon. Daniel Dillon, Judge. Appellants had a property in the agreement between Morgner and Wall, which property respondent destroyed. Pollock on Torts (1887) 270, and note; Lumley v. Gye, 2 Ell. & Bl. 228; Green v. Button, 2 C. M. & B. 707; Pollock on Torts (1887) p. 269, et seq., and notes; also pp. 450, 451, 452, et seq., and notes; Piggot on Torts (1885) p. 352, seq.; Carrington v. Taylor, 11 East (K.B.) sec. 571.

Louis Circuit Court, Hon. (George W. Lubke, Judge. If a xiarty agrees to do au act, he is bound to perform what he undertook to do, or pay damages ; the impossibility of accomj)lishing the thing will not excuse him. Beebe v. Johnson, 19 Wend. (N. Y.) 500 ; 3 Comyn’s Dig. 93 ; 1 Roll. Abs. 310. If a party to a contract disables himself from performing it, he may be sued for the breach. Crabtree ». Messer smith, 19 Iowa, 179.

<p>Appeal from the St. Louis Circuit Court,. Hon. Lerov B. Valliant, Judge.</p> <p>A sale made in reliance upon false and fraudulent representations as to the financial responsibility of the vendee may be rescinded by the vendor, unless the goods have,' prior to such rescission,- fallen into the hands of an innocent purchaser for value. ' One who takes goods in satisfaction of a precedent debt is not such an innocent purchaser for value, unless a new consideration moves from him. Hess v. Clark, 11 Mo. App. 492; Milling Co. v. Turner, 23 Mo. App. 103; Deere v. Marsden, 88 Mo. 512; Oates v. Bank, 100 XJ. S. 247; Benjamin on Sales [Corbin’s Ed.] sec. 649. A sale of personal property must be accompanied by the statutory requirements as“to change of possession, or it is void as against creditors. Rev. Stat., sec. 2505; Worley v. Watson, 22 Mo. App. 546; Cooner v. Johnson, 86 Mo. 538; Hisey v. Goodwin, 90 Mo. 366.</p>

<p>1. Petition — Cause oe Action. — The petition states that D., M. & Co„ were indebted to the plaintiff,, and were garnished by the defendant as debtors of another person who bore the samé initials and surname with the plaintiff, but to whom they owed nothing; that D,, M. & Co. answered, admitting their indebtedness to the plaintiff by the name stated, not knowing that there was another person having the same name ; and judgment was rendered against them on the garnishment, in favor of the defendant, who collected the money thereon. Judgment is prayed for the amount so collected by the defendant. Held, that the petition shows no cause of action.</p> <p>S. Garnishment — Judgment Conclusive. — A judgment in garnishment is conclusive against the garnishee, and in favor of the' plaintiff therein, although the same debt may be rightfully claimed by another person.</p>

Appeal irom the St. Louis Circuit Court, Hon. Daniel Dillon, Judge. With the introduction of the benefit certificate issued and delivered to James Mulroy by defendant, proof of the signatures and official character of the signers thereto, proof of Mulroy’s death, and proof that plaintiff is his-widow, and the beneficiary named in the benefit certificate, plaintiff made out a prima-facie case. Supreme-Lodge v. Johnson, 78 Ind. 110; Lazenslty v. Knights of Honor, 31 Fed.

James M. Davis, Judge. Statement of case. This is an action for damages resulting from the killing of plaintiff’s husband. The plaintiff is the widow of John Q. Gray. The deceased and defendant were neighbors, living near the town of Lisbonville, in Ray county, bet ween whom there does not appear to have been other feeling than that of friendship and neighbor-ship, prior to the trouble hereinafter mentioned. They were both men of good character, and were good citizens.

James B. 'GtANtt, Judge. The case is stated in the opinion. I. The petition is sufficient.

Circuit Court, Hon. Charles W. Sloan, Judge, The case is stated in the opinion. Iy The record in the wife’s suit against the defendant was admissible to show what had been adjudicated therein. Tult v. Price, 7 Mo., App. 194; Railroad v. Traube, 59 Mo. 355; Stewart v. Nelson, 79 Mo. 522. II.

Joseph . P. Grubb, Judge. The case is stated in the opinion. I. The case having been determined upon demurrer, the record sufficiently presents a statement of the case. The appellant seeks a reversal upon the following ground: The motion to set aside the decree of divorce is not a bill of review. Qole v. Miller, 82 Miss. 89; 2 Hoffman Ch. Prac. 12; Greene v. Greene, 2 Gray, 364; Parish v. Parish, 9 Ohio St. 534; Lucas v. Lucas, 3 Gray, 126; Qole v. Qole, 3 Mo.

W. I. Wallace, Judge. The case is stated in the opinion. I. The court erred in excluding the papers in the attachment suit. They should have been admitted to show whether the-relator’s demand was due from the partnership or the individual estate of Edington. They •explained the judgment in this respect. Freeman on ’Judgments, p. 31, sec. 45; p. 36, sec. 50a; p. 231, sec. 215. . II.

M. G. MoGregor, Judge. The case is stated in the opinion. I. The record shows that Nathan Bray, on the1 twentieth of September, 1873, sold the land known as II. An innocent purchaser is one who buys and pays for property, and when that is the defence it must be so alleged and proved. Hulsa v. Hulsa, 8 Mo. 303 ; Paul v. Pulton, 25 Mo. 156 ; Aubuchon v. Bender, 44 Mo. 560; Wallace v. Wilson, 30 Mo. 335 ; Bishop v. Schneider, 46 Mo. 472 ; Rice v: Bunce, Admir, 49 Mo. 231. III.

-Appeal from Polk Circuit Court, Hon. Ben. W Alton, Judge. Certified to Supreme Court upon claim of Philips, P. J., that the opinion is in conflict with the decisions of the Supreme Court. The case is stated in the opinion. I. The statement is not sufficient to constitute' a «cause of action. Brashears v. Shock, 4&~Ko. 227; Swartz v. Nicholson, 65 Mo. 508 ; Butts v. Phelps, 79 Mo. 302 ; Razor v. Railroad, 73 Mo. 471. II.

Turner A. Gill, Judge. The case is sufficiently stated in the opinion of the -court. I. There is no bill of exceptions in this case that 'this court will pass upon. The cause was tried at the October, 1886, term of the circuit court, it being January 3, 1887. The motion for a new trial was filed at the same term, it being January 4, 1887.

James B. Gantt, Judge. Statement of case by tbe court. This is an action in assumpsit for the recovery of various accounts for goods sold to the firm of Hamsel & Dawson, the petition alleging that said firm was composed of one Hamsel and the defendant, doing business as partners. The first count was for goods so sold by the plaintiffs. The other counts were predicated of claims for goods so sold by other persons, which accounts were assigned to the plaintiffs.

Turner A. 'GrILL, Judge. Statement of case by the court. This is an action to enforce a mechanic’s lien, and to recover the contract money. The defendant, Leete, was the contractor, and the defendant, English, was part owner of the building on which the lien is sought to be enforced. The plaintiff furnished material for the erection of this' building, as a subcontractor under Leete.

<p>Practice — Bill of Exceptions — Signing of by Other Than Trial Judge — Case Adjudged. — Where a cause was tried before the then judge of the judicial circuit, who went out of office before the bill of exceptions was signed, and the bill of exceptions was after-wards presented to his successor and signed by him. Held, that such successor had no authority to sign such bill of exceptions, with or without the consent of the parties, and that there is no bill of exceptions in this record, which this court can consider.</p>

Turner A. Gill, Judge. The case is stated in the opinion. I. (a) The first instruction given for plaintiff declares, in effect, that the natural surface of the earth over'which a street or highway is dedicated, can never be changed without compensation to the owner of abutting property if he choose to claim it.

Francis M. Black, Judge. ' The case is stated in the opinion. I. Section 809, Revised Statutes, does not require fences to be built between the tracks of the Wabash Railway Company and those of defendant. The phraseology of the section showg it was not intended to apply to-the station grounds of a railroad company. Edioards v. Railroad, 66 Mo. 671; Morris ». Railroad, 79 Mo. 370;. McIntosh o. Railroad, 26- Mo. App. 362; Cousin7s case, 66 Mo. 572. II.

<p>Practice — Criminal Law — Indictment Under Section 1547, Revised Statutes — Whence Appealable Upon Conviction. — In the case of an indictment under section 1547, Revised Statutes, as amended by Laws, 1881, page 112, commonly known as the “Johnson Gambling Law,” and conviction thereunder, and sentence to imprisonment in the county jail, the conviction is for felony, under section 1676, Revised Statutes, and this court has no jurisdiction, under section 12, article 6, of the constitution of this state. The appeal, in such a case, is to the Supreme Court, and this cause must be transferred to that court.</p>

Louis Circuit Court, Hon. Daniel Dillon, Judge. This court expressly said that the question in this case was, the sense in which the parties to the instrument used the term, “special taxes,” yet, the circuit court tried this case upon the theory that what was in the minds of the parties was immaterial. The circuit court did not, therefore, try this case in accordance with the decision ■of this court, and for that error appellant contends the circuit court should be reversed.

<p>Practice — Proof Must Conform to Petition. —A suit upon a promise to pay money cannot be sustained by proof that the defendant undertook to execute a conveyance, but did not.</p>

Lonis Circuit Court, Hon. Daniel Dillon, Judge. The trial court declares (under instruction number one given for plaintiff) “ that if the- defendant, by his silence, induced plaintiff to believe that plaintiff was negotiating a sale to Broderick & Bascóme Rope Company, and said real estate was sold to said company, then the plaintiff is entitled to recover.” We maintain that not only the weight of evidence, but all the evidence shows that plaintiff was induced to undertake…

Louis Circuit Court, Hon. Daniel, Dillon, Judge. The court erred in dismissing plaintiffs’bill because the answer admits plaintiffs’ cause of action, and asks for an accounting and settlement of the assets of the stock' company or partnership. Rev. Stat., sec. 3398; Bispham on Equity (2 Ed.) sec. 509 ; Kennedy v. Kennedy, 3 Dana, 239 ; Williamson v. Wilson, 1 Bland, 418; Berry n. Cross, 3 Sandf. Ch. 1; Holden r>. MeMaeldn, 1 Pars. Eq.

C. C. Bland, Judge. All the items of exception except the one relating to commissions were abandoned, and as the amount claimed on that score is only $2,343,80, this case is unlike Myers v. Myers (22 Mo. App. 94). A case in point is Matthews v. Danahy (25 Mo. App. 354). St. Clair v. Bay, 89 N. Y. 357. The amount in controversy in the circuit court, not that in the probate court, controls. Davidson v. Alfaro, 80 N. Y. 660; Brown v. Sigourney, 72 N. Y. 122.

<p>1. Special Tax Bill — Whether Irregular Only or Void. — A. special tax bill based upon an improper theory of apportionment, is not, therefore, void, but is irregular and amendable.</p> <p>S. -Res Judicata. — A final judgment for the defendant, in a suit upon an irregular and amen'’ ble special tax bill, will bar a subsequent action on the same special tax bill, although properly corrected. But if the tax bill, as first sued on, be void, the judgment will be no defence against a later action on a valid tax bill for the same work.</p> <p>8. -Dismissal oe Suit. — Where the plaintiff in a suit upon an irregular special tax bill dismisses the proceeding, he will be barred under the statute against another action on the same or a, corrected tax bill for the same work, unless it be commenced within one year after the dismissal.</p>

<p>1. Mechanics’ Liens — Power to Enforce, Statutory and not Equitable. — The judicial authority to enforce mechanics’ liens, in this state, is purely statutory, and does not belong to the powers of a court of equity, as such.</p> <p>2. -- Priority of Incumbrances. — In a suit upon a mechanic’s lien, originating before a justice of the peace, it is error for the circuit court to submit to a jury the question whether the lien sought, or a mortgage executed by the owner, is the prior incumbrance on the property. Nor is there any warrant in the judicial decisions of this state for supposing that such priority might be determined by decree in such a suit, wherever originating.</p> <p>3. Mechanics’ Liens, Commencement of — Priorities.—A mechanic’s lien cannot date from a time when the defendant owner had no title or interest in the property, though the work may have been then actually begun. Hence, where the owner executes a mortgage for purchase money simultaneously with his first acquisition of ownership, the mechanic’s lien cannot have priority over such mortgage, whatever may have been the time when the work was commenced.</p> <p>4. Mechanic’s Lien — Sufficiency of Account. — Where the contract was for the performance of labor on the defendant’s building, at so much per hour, an account filed with the lien claim, which shows the number and dates of the hours worked, without describing the particular kind of work done, is sufficient.</p>

Louis Circuit Court, Hon. George W. Lubke, Judge. (1) The appellants were misled by the statements by Henry B. Davis, agent and attorney of respondent, and by his representations prevented from making service upon respondent. (2) The evidence shows due diligence on the part of the appellants to give notice, and they were wrongfully deprived of their right to a hearing of the cause upon its merits. (3) The record shows that there was actual notice of the appeal.

<p>Appeal from the Louisiana Court of Common Pleas, Hon. Ti-iomas H. Bacon, Judge.</p>

<p>Appeal from the St. Louis Circuit Court, Hon. Daniel Dillon, Judge.</p> <p>The court erred in refusing a reference to state the account between plaintiffs and defendant. The account rendered on October 30, with the accompanying letter, did not, even though unexcepted to within a “considerable time,” constitute an account stated. There was not an agreement upon a precise and definite sum. Lane v. Hill, 18 Ad. & Ell. (N. S.) 252; Kirton v. Wood, 1 Mood. & Rob. 253; 2 Greenl. Evid., sec. 126, et seq.; 65 Mo. 658; 67 N". Y. 162. The abbreviations, “ E. and O. E.,” prevented this. Moreover these abbreviations, which mean errors and omissions excepted, waived the necessity of an objection on the part of the defendant to the account as rendered within a reasonable time after its receipt. The defendant was advised by the account rendered, that all errors and omissions should be corrected. The court erred in refusing to admit evidence on the part of defendant to show mistakes and omissions in other items of the transactions between plaintiffs and defendant than the three specified in the answer. Wiggins v. Burkham, 10 Wall. 131; Brown v. Kimmel, 67 Mo. 430 ; Powell v. Railroad, 65 Mo. 658; Champion v. Joslyn, 44 N. Y. 656. The court erred in giving instructions numbered one and two, at plaintiffs’ request. Number one is objectionable in this phrase: “And if you also believe that the defendant received such account and retained it for a considerable period of time without objections thereto,” etc. The expression, “ a considerable period of time,” is too indefinite. It is not a legal term. Number two is erroneous in this phrase: “And you believe said account showed the correct balance due by defendant to plaintiffs,,October 30, 1882.” Sullivan v. Railroad, 88 Mo. 169.</p> <p>The court did not err in refusing a reference of this case.' It properly exercised the discretion to refer, which is vested in the trial judge. Fitzpatrick v. Hayward, 50 Mo. 516; Briscoe v. Kinealy, 8 Mo. App. 76; Schmidt v. Rose, 6 Mo. App. 579; Dooley v. Barker, 2 Mo. App. 325. This account, rendered October 30, 1882, showed a precise balance due, and the circumstances attending its receipt and detention by defendant all went to make it under the law an account stated. Brown v. Kimmel, 68 Mo. 431; Lockwood v. Thorne, 11 N. Y. 173; s. o., 18 N. Y. 289 ; Wiggins v. Burkham, 10 Wall. 129 ; C hisman v. Count, 2 M. & G~. 307 ; Ward ». Farrelly, 9 Mo. App. 370; Kent v. Highleyman, 17 Mo. App. 9. An account stated is, prima facie, correct, and the party claiming it to be incorrect must specifically point out in his pleadings the errors charged, and only those will be considered by the court. Kronenberger v. Binz, 56 Mo. 121; Taylor v. Haling, 1 Cox, 435; Brew v. Bowers, 1 Sch. & Lef. 192; Chambers r>. Coldwin, 9 Ves. 266 ; 6 Waite on Actions and Defences, 427. In Johnson v. Curtis (3 Bro. C. C. 226), Lord Thurlow held that to go behind an account stated the specific errors must be charged, and the fact that the words, “errors excepted,” were written upon the account did not vary the rule. The first instruction was amply justified by the evidence. Tyler *. Larimore, 19 Mo. App. 445 ; Campbell ». Railroad, 16 Mo. App. 553; Brown ». Railroad, 13 Mo. App. 463; Otto v. Railroad, 12 Mo. App. 168 ; State ex rel. v. Rubbering, 6 Mo. App. 586. There is no merit in the fifth point made by counsel. The instruction therein referred to was properly refused. Condon v. Railroad, 78 Mo. 567; Shaffner t>. Leahy, 21 Mo. App. 110; Norton r>.- Moberly, 18 Mo. App. 457.</p>

Louis Circuit Court, Hon. George W. Lubke, Judge. The court erred in admitting incompetent, irrelevant, and immaterial evidence offered by plaintiff. Barley v. Gabanne, 1 Mo. App. 129 ; Par leer v. Portland Go., 69 Me. 171; Railroad v. Huntley, 38 Mich. 537. The court erred in refusing to give the instructions asked by defendant. Blair v. Railroad, 89 Mo. 392; Be Forest v. Jewett, 88 N. Y. 264; Railroad v. Scherlle, 97 Pa.

Louis Circuit Court, Hon. Daniel Dillon, Judge. It has been held that it is no abuse of discretion to proceed with the trial of a case when an attorney is engaged in another court. Guffin v. Vail, 56 Mo. 311. It will be observed that, in both this case and that of Jacob v. McLean, -cited by Judge Adams in his opinion, the defendant -was not in court, and no reason was given for his absence.

Louis Circuit Court, Hon. James A. Seddon, Judge. There was no testimony on the part of defendant tending to invalidate the sale in any particular. One who in good faith takes personal property for an antecedent debt will be treated as a purchaser for value, and will be protected against a claim of the original owner (and against creditors of the vendor) to the same extent as if he had purchased it for value. Hess v. Ciarle, 11 Mo. App. 492; Green v. Kennedy, 6 Mo.' App. 577.

<p>Appeal from tlie Cape Girardeau Court of Common Pleas, Hon. Bobert L. Wilson, Judge.</p> <p>The account filed is not such as is required by tlie statute, and ought to have been excluded. Lowis v. Gutter, 6 Mo. App. 54; Kline r. Construction Go., 7 Mo. App. 410; Hayden v. Wuljing, 19 Mo. App. 353 ; Foster v. Wuljing, 20 Mo. App. 85 ; Coe v. Ritter, 76 Mo. 277 ; Me Williams v. Mian, 45 Mo. 573; Phillips on Mech. Liens [1 Ed.] sec. 357. The owner of the property sought to be subjected to the lien is not bound by the prices agreed upon between the contractor and the materialman. McMahon v. Br ¿dwell, 3 Mo. App. 572 ; Kline v. Construction Co., 7 Mo. App. 410; Heinrich v. Gymnastic Body, 8 Mo. App. 587; Deardorff v. Everhart, 74 Mo. 37. The dissolution of the firm of Smith' & Cofer, of which the materialmen, Fathman & Miller, had notice in February, broke the continuity of the account, so-that no materials furnished subsequently to that time-could be charged up to Smith & Cofer. Consequently the three last items in the account cannot be considered. Assuming the three last items to be proper charges, separate liens should have been filed. ‘ Gauss v. Hussman, 22 Mo. App. 115; Livermore v. Wright, 88 Mo. 31; Allen & Co. 'v. Mining Co., 73 Mo. 688, 693. Plaintiffs’ account was not filed in the clerk’s office in the. time prescribed by statute.</p> <p>This-account gives the years, months, days of the month, and each and every item as furnished by plaintiffs, se that the owner is fully informed as to every item furnished by these respondents, and the days and years on which the same were delivered. Cole v. Barron, 8 Mo. App. 509 ; Hayden v. Wuljing, 19 Mo. App. 353 ; Lowis v. Cutter, 6 Mo. App. 45. In Kling v. Construction Co. (7 Mo. App. 410), the objections to the account were-(1) that no items were set out,” only one lump sum,— “to contract price, $4,996.00;” (2) that the lien claim was not substantially correct, but greatly in excess of the amount really due. Neither of these objections can be urged to the account here filed. In Foster v. Wulfing (20 Mo. App. 85), the objection to the account was, that it was one lumping charge for labor and material, which did not state how much labor or how much material was contained in the claim. This objection cannot be urged to the lien here. At the trial of the case, both sides treated the bid of Fathman & Miller as the reasonable market value of the. goods, and as primafacie evidence of value. HilWcer v. Francisco, 65 Mo. 598; Eeardorff v. Everhart, 74 Mo. 37. As to the third point in appellants’ brief, it is immaterial whether all materials were delivered to Smith & Cofer as a firm, or to Smith individually, so long as one of the original contractors was made a party to the suit. Foster v. Wulfing, 20 Mo. App. 85; Putman v. Foss, 55 Mo. 116; Hassett v. Fust, 64 Mo. 325.</p>

. James A. Boone, Special Judge. The court erred: (1) In overruling defendant’s motion or demurrer to the introduction of any evidence by plaintiff. Dillon ■». Bowles, 77 Mo. 604; Story on Cont. (4 Ed.) secs. 22, 60, 69, 70.

Bobert L. Wilsow, Judge. The court erred in striking out the third, fourth, and fifth counts of defendants’ answer. Bev. Stat., secs. 985, 3519, 2, 105, 107 ; Shockley v. Fischer, 21 Mo. App. 551; Gamble v. Johnson, 9 Mo. 605. The defences are consistent. State ex rel. v. Stark, 10 Mo. App. 591; Wood v. IJilbish, 23 Mo. App. 389 ; Patrick v. Gas Light Go., 17 Mo. App. 462.

<p>Appeal from the St. Lonis Circuit Court, Hon. Daniel Dillon, judge.</p> <p>City v. Stoddard, 15 Mo. App. 179.</p> <p>Ess v. Bouton, 64 Mo. 105; Stiff el v. Dougherty, 6 Mo. App. 441; Waud v. Oreen, 7 Mo. App. 82 ; Seibert v. Tiffany, 8 Mo. App. 33; Mauro v. Buffington, 26 Mo. 184; Williams v. Payne, 80 Mo. 409; Tackett v. Yogler, 85 Mo. 480.</p>

<p>Eeeob to the Lincoln Circuit Court, Hon. Elijah Robinson, Judge.</p> <p>An advancement, properly speaking, is a gift by a person to a child, by anticipation, in whole or in part, of what it is supposed the child would be entitled to on the death of the person. Cawthen v. Coppedge, 1 Tenn. 487; Osgood v. Breed, 17 Mass. 358; Grattan v. Grattan, 18 111. 167. Equality is equity amongst heirs, and the doctrine of advancements has for its object the furtherance of this end. Miller’s Appeal, 31 Pa. St. 337. A conveyance to a child, either directly or indirectly, as by payment of the purchase money for land, is primaj facie an advancement. Weems’ Appeal, 63 Pa. St. 309 ; Ray v. Loper, 65 Mo. 470. The amounts, as shown by the evidence of Benton and Brice Wommack, the two amounts being necessary to start them in life, are properly held advancements. Shiver v. Brock, 2 Jones (Ñ. C.) 137; Sandford v. Sandford, 61 Barb. 294. When a gift of money or property is made to a child or heir by a person who afterwards dies intestate, as in this case, the presumption is that an advancement was intended. Hallester v. Attmore, 5 Jones Eq. (N. C.) 373 : Grattan v. Grattan, 18 111. 167; Billman v. Cox, 23 Ind. 440; Antrey v. Antrey, 1 Ala. 542; Mitchell v. Mitchell, 8 Ala. 414; Weems Appeal, 63 Pa. St 309. A voluntary conveyance of land by a person to a child, without asking or receiving any consideration therefor, is prima facie, an advancement. Hay v. Loper, 65 Mo. 475 ; Sandford «. Sandford, 61 Barb. 293 ; s. c., Bans, 486.</p> <p>Whether property received by the child from the father shall be treated as a gift or as an advancement, depends upon the intention of the parent. Declarations made by the father to third persons, as to his intent, are competent, even though not made in the presence of any of his children. Cecil ». Cecil, 20 Md. 156 ; Johnson n. Belden, 20 Conn. 322; Sherwood d. Smith, 23 Conn. 521; Phillips v. Chappell, 16 Gfa. 16; Dil/man r>. Cox, 23 Ind. 442 ; Lawson’’ s Appeal, 23 Pa. St. 86 ; Antrey v. Antrey, 37 Ala. 618. Even though the bill of exceptions states that “this was all the testimony offered,” yet, if the record shows that all the testimony is not copied in the record, the court will' disregard the-statement in the close of the bill of exceptions, and act upon the fact that all the testimony which was before-the trial court is not before the appellate court.</p>

Louis Circuit Court, Hon. James A. Seddon, Judge. The plaintiff must allege in his complaint that defendant had notice or knowledge of the efficient cause of the injury, or ought, by the exercise of reasonable diligence, to have known it. 2 Thompson on Neg., sec. 1050. The case should have been taken from the jury, because plaintiff’s own testimony and the testimony of his witnesses established the fact that his injuries were the direct result of his own negligence.

Louis Circuit Court, Hon. Shepard Barclay, Judge. Any material furnished by plaintiffs, and by them laid in Locust street, is not the subject-matter of a lien, and any material so furnished, or work and labor done in placing the same in Locust street, would not be the subject-matter of a lien within the meaning of the mechanics’ lien act.

Louis Circuit Court, Hon. Daniel Dillon, Judge. The claim that the wife makes, under section 2348, is a claim made for the husband ; she makes it vice the head of the family— he having absconded ; and delivery of property to her under that section, gives to her only the rights which the husband would have had,' if the property had been set off as exempt to him. Rendleman v. Rendleman, 6 West. Rep. 98.