Volume 285 — Missouri Reports

— Hon. Almon Ing, Judge. (1) The opinion of a lay witness as to the sanity or insanity of a person is only competent after acquaintance and frequent association is shown, and then all facts upon which the opinion is’based must be detailed by the witness, and, unless this is done, such testimony is incompetent.

—Hon. Peter H. Huck, Judge. The information in this case is not verified by the oath of the prosecuting attorney, or by the oath of some person competent to testify as a witness in the case, or supported by the affidavit of such witness. The complaint filed before the justice of the peace, for the purpose of preliminary examination, having served its purpose, could not supply the place of the required statutory oath, or affidavit.

<p>1. ABSTRACT: Filing of Motion and Signing of Bill. If the abstract states that the motion for a new trial and the hill of exceptions were duly filed, and objection that the abstract fails to show that the motion was filed in term time, and within four days of tha rendition of the verdict, and that it does not show that the hill was signed by the trial judge and properly signed, will, according to Rule 31, be overruled, unless the respondent produces the record showing that the recitals'in the abstract that the motion and bill were duly filed are untrue.</p> <p>2. NEGLIGENCE: Demurrer to Evidence: Consideration of Defend- ' ant’s. Where the evidence tending to support plaintiff’s case is vague and unsatisfactory, the court, in considering a demurrer to the evidence, may consider, not only the evidence offered by plaintiff’s, but, under appropriate conditions the evidence of the defendant.</p> <p>3. -: -: Tightening Wash-Out Plug in Boiler: Rule of Company. Where the wash-out plug of a locomotive engine carrying from 190 to 200 pounds of steam was discovered to be leaking, and the foreman of the crew whose duty it was to repair it before it was sent out on the road was an experienced worker, was warned by one of his subordinates that it was dangerous to attempt to tighten the plug without first blowing off the steam, it was in open - violation of the company’s rule to undertake to tighten the plug while the boiler was full of steam, the foreman knew of the rule, had been warned that he would be discharged if found violating it, had been specifically instructed that the proper method of tightening or renewing the plug was to first blow off the steam, had manifested a disposition to disregard the rule, had boasted of his ability and willingness to undertake to make such repairs in defiance of the rule and in contempt of the danger involved, it was besides manifestly dangerous to undertake to tighten the wash-out plug while the boiler was full of steam, and he nevertheless without blowing off the steam undertook to tighten .the plug, it blew out and the escaping steam caused his death, there can be no recovery of damages for his death, notwithstanding th.e subordinate who warned the foreman of the danger testified that the foreman at the time said he had instructions from the company to tighten wash-out plugs with the steam on and without blowing down the engine. Under such circumstances there can be no recovery even under the Federal Employers Liability Act.</p> <p>4. -: -: Under Federal Act. Where the conclusion from the evidence is inescapable that the death of the foreman was due to his own negligence, there can be no recovery under the Federal Employers Liability Act.</p> <p>5. -: Assumption of Risk. The servant assumes those risks which are necessarily incident to the work in which he is employed. Where the foreman was in charge of the work of repairing defects in the railroad company’s engines and boilers, the particular boiler which he undertook to repair was obviously defective, and he possessed all the knowledge which the company possessed concerning the particular boiler and concerning the dangers incident to handling it, he assumed whatever dangers were naturally and ordinarily incident to the necessary repair of such defect.</p> <p>6. -: -: Under Federal Act. Escept in cases in which there has been a violation by the employer of the provisions of the Safety Appliance Act, the defense of assumption of risk is a valid defense to an action brought under the Federal Employers Liability Act.</p> <p>7. -: Belated Grounds for -Affirmance. A contention brought forward by, respondent in a “memorandum of additional authorities,” filed since thd cause was originally argued, that the judgment for plaintiff should be affirmed because the case shows a violation of the Federal Boiler Inspection Act, may well be disregarded where it is brought forward after the case, on appeal, has been briefed, argued and submitted, and it was not tried on that theory in the trial court.</p> <p>8. -: -: Federal Boiler Inspection Act. The Federal Boiler Inspection Act prohibits the use of any locomotive engine in interstate traffic unless its boiler is in proper condition and safe for operation “in the active service of moving traffic”, and does not apply to an engine which is being prepared and made safe for use in such traffic.</p>

<p>1. CROSS-EXAMINATION: Wide Latitude: Interest. It is difficult to lay down a hard-and-fast rule concerning the proper scope or cross-examination. A wide range is allowed for the purpose^! showing motive, interest or animus of the witness. Where defendant was charged with robbing a bank at Neelyville on June 13th, and his mother bad testified that he was at her home in Arkansas the entire day the robbery occurred and left there two days later for St. Louis, it was not error to permit the State to show on cross-examination that four days after the robbery she wrote him <then in St. Louis)' under an assumed name, in which she.said: “X met Gosharn when X went to Moark and he was asking about Claud (her son) and I told him he had went to the Kansas wheat fields.” The letter reveals a clever device by the mother to aid the flight of her son, throws light upon her interest, was admissible on the question of her interest in protecting defendant, and being admissible for that purpose whether admissible for other purposes is immaterial.</p> <p>2. INSTRUCTION: On Circumstantial Evidence. Where there is both direct and circumstantial evidence of defendant’s guilt, it is not error to give an instruction on circumstantial evidence, although it would not be error to refuse such an instruction.</p> <p>3. -: Putting in Pear: Three Charged: One Required. Where the information charges that the president; cashier and a stockholder, present in the bank at the time of the robbery, were put in fear of some immediate injury to their persons, an instruction - which requires the jury to find that only the cashier was put in fear is not error, sincé the cashier was the agent in charge of the bank’s property and under the statute (Sec. 4530, R. S. 1909) it is only necessary to allege that the agent in charge of the property was put in fear, and the allegation that the president and stockholder were put in fear may.be regarded as surplusage.</p> <p>4. NEWLY DISCOVERED EVIDENCE: Cumulative: Different Result. The trial court is justified in overruling a motion for a new trial, where the newly discovered evidence, on which the motion ' is based, is cumulative and similar to the evidence offered by defendant at the trial. And the overruling of the motion is also justified if the court is of the opinion from a careful review of the record that the newly discovered evidence is not of sufficient importance that its introduction would probably produce a different result.</p>

— Hon. N. M. Pettingill, Judge. (1) Tlie information was not verified according to the Statutes and the decisions of this court and should have been quashed. Secs. 5057, 5058, R. S. 1909; State v. Lawhorn, 250 Mo. 301. (2) The instruction No. 7, given for the State, leaves out the word “wilfully,” between the word “has” and the word “sworn.” This instruction is wrong’ and reversible error. Wilfully means doing or omitting to do a thing knowingly.

Louis City Circuit Court.—Hon. John W. Calhoun, Judge. (1) Instruction No. 2 is bad' and is not the law, as said instruction permits a conviction even though the defendant may not have had guilty knowledge that the property had been stolen.

Louis City Circuit Court.—Hon. Karl Kimmel, Judge. (1) The contract of March 2, 1912, and as modified hy the contract of April 12, 1912, gave the defendant the right to elect between operating as a licensee, and making an outright purchase of the patent. There is no evidence that defendant ever exercised its right of election, and until it did so elect there could be no liability on its part to pay either the royalty provided for, or the purchase price.

<p>1. GRADING STREET: Special Assessment: Semi-Annual Statements. A recital in the ordinance providing for the improvement of a designated street tkat “it is the judgment of the board of aider-men that the general revenue fund of the city is not in condition to warrant expenditure therefrom for bringing said street to established grade and that same shall be included in special assessment for'the improvement” is sufficient to include in the special tax bill, as a part of the cost of the improvement, the cost of bringing the street to established grade; and the board had authority to insert said declaration in the ordinance, although it had not spread upon its records prior thereto semi-annual statements of the city’s receipts and expenditures and its indebtedness, as required by the statute.</p> <p>■¿. TAX BILL: Improving Private Property. If" one-half the strip sixty feet wide belonged to defendant, a ¡ special tax bill issued against his abutting property in payment for the improvements constructed thereon by the city is void.</p> <p>3. -: -: Estoppel: Common Law Dedication. Whether or not the attempt of the city to condemn a thirty-foot strip of defendant’s lot for street purposes was void for that notice by publication did not amount to due process of law, the defendant may be estopped to assert titl'e to said strip by a common law dedication thereof to city use; and such dedication may be established by evidence showing his intention to dedicate, acts done to carry out the intention, and an acceptance by the city; and the facts shown by the city in this case, whether it be considered an action at law or a suit in equity, being sufficient to show a common law dedication of said thirty-foot strip to the city, the tax bill levied against the remaining part of his lot for the grading, paving and guttering of the street of which said strip was a part, was not issued for the improvement of private property, and hence was not void.</p>

<p>1. TAX SALE: Different Tracts: One Sale. Whether the different tracts belonged to the same or different owners, the Charter of Kansas City of 1909 required a separate sale of each tract for the taxes due on it; and a deed whose recitals show that the city offered the full amount of the taxes due on two lots for both lots, and that both were stricken off to it at such lump sum, is void. While more than one tract may be included in the same deed, its recitals should show the amount of delinquent taxes against each lot, and that each was sold for the amount due on it alone, and not in solido for taxes due against all the tracts sold.</p> <p>2. —-: According to All Requirements of The Law: Inference. It cannot be inferred from a recital in the tax deed that the sale was made “in conformity with all the requirements of the law in such cases” that each lot was sold separately for the taxes due against it alone, since the charter requires an express or affirmative statement in the deed that each tract was sold separately.</p> <p>3. -: Non-Judicial Sales. In determining the validity of sales and deeds made by a sheriff under regular judicial proceedings a more liberal construction of the acts and proceedings of the officers is allowable than in non-judicial sales for taxes; for such non-judicial sales and the deeds made in pursuance thereto, to be valid, are required to strictly conform to the provisions of the law.</p> <p>4. -: -: Special Assessment Taxes. The form of the deed prescribed by the Charter of Kansas City of 1909 for use in tax sales must be modified so as to tell the truth and fit the facts in each particular case; and a tax deed is void which fails to state that the taxes for which the property was sold were special assessments levied by the park board and council for the maintenance and repair of parks, and boulevards, where the ordinance provided that such sales should be governed “as far as practicable” by the laws and ordinances governing sales for the non-payment of general taxes.</p> <p>5. -: Void Deed: Things to be Proved by Property Owner. If the tax deed was not “executed substantially as provided” in one section of the charter, another section requiring the person claiming adversely to the tax title to prove that the taxes were paid before sale, or that the property was not subject to taxation, or that it had been redeemed or tender made, does not apply, for the provisions of said other, section apply only when the tax deed is valid on its face.</p> <p>6. -: No General Taxes Due. A recital in the tax deed that the lots were sold for “taxes assessed upon said real property” must be held to mean general city taxes, and if all the general city taxes were paid when the property was sold, the deed containing such recital was void.</p> <p>7. -: Reimbursement: For Money Paid for Later Certificates. The Charter of Kansas City only authorizes recovery, by the person claiming under an invalid tax deed, of the amount of taxes, assessments, etc., “paid by the purchaser . . . after the date of the certificate of purchase,” and does not authorize recovery by the assignee of the certificate. of purchase of the amount he paid the city for taking- up certificates of purchase for subsequent years. But such claimant, in his suit to have the tax deed declared void, should pay into court, or to defendant personally, the amount, with twelve per cent interest, which he paid for his certificate of purchase and his tax deed.</p> <p>8. ■— -: Void Deed: Suit in Equity: Quieting Title. A suit in equity may be maintained to cancel a deed void on its face. Besides, a suit to quiet title, if the allegations of the petition are sufficient to bring the case within the provisions of Section 2535, Revised Statutes 1909, may be maintained by any person claiming title, whether in or out of possession, against any other person claiming title, whether under a deed void on its face or void in fact.</p> <p>9. --: -: Laches. If the owner did nothing to induce defendant to buy his property at the tax sale, his suit to have the sale and deed declared invalid is not barred by laches because of his failure to redeem within five years.</p>

<p>1. QUIETING TITLE: Removing Cloud: Not Pleaded: Judgment Nevertheless. „ A petition which merely alleges that plaintiffs, are the owners in fee simple and claim that title to the land in question and, by intendment, that defendants claim some interest adverse to that of plaintiffs, and ashing the court to ascertain and determine the title, states an- action at law, and will not authorize a removal of a cloud upon the title, for that would be to award equitable relief. Nor will an allegation in the petition that defendants have placed on record a deed indicating they claim some title and a prayer that said deed be set aside* authorize the setting aside of said deed, where the petition contains no allegation of facts that would authorize its cancellation; for the statute, in spite of its broad language, does not provide a complete scheme of procedure within itself, but the procedure must conform in all respects to the provisions of the Code. But so far as this case is concerned, the objection that the judgment does not conform to the pleadings is technical and formal rather than of substance, since the court found and adjudged that the deed conveyed nothing, that as a conveyance it was a mere simulation, and hence it is of no practical consequence whether it be cancelled or not.</p> <p>2. TAX SALE: Wife’s Land: Redemption by Husband: Purchase and Deed from Certificate Holder. A husband who with his wife occupies her property as a home and assumes to pay the taxes is bound to act in good faith and with due regard for her interests, and a payment by him of delinquent taxes, with penalties and interest, and the receiving of a deed naming him as- grantee, from the certificate holder, who had bought the property at a tax sale under a law which permitted it to be redeemed within two years, amounted only to a redemption of the property, and not to a purchase by him, and in equity whatever title he acquired inured to her; and if she had in the meantime died, leaving minor children by him, dependent upon him, and after the wife’s death he continued in charge' of the property, the same fiduciary relation continued, and he could not acquire an interest in the property hostilé to the children, but the payment of the delinquent taxes . and penalties to the certificate-holder and the deed from him to himself constituted a redemption of the property from the tax sale, and not a purchase by him.</p> <p>3. -: Life Tenant: Trustee for Remaindermen. It is the duty of the life tenant to preserve the estate for the remaindermen; and while it' may not be incumbent upon a father as a life tenant to redeem property belonging to his wife from a tax sale had before the beginning of his life estate, yet if he does redeem it, it is for the benefit of the entire estate—the remainder as well as his iife estate—and if in doing so he receives a deed to himself alone, it inures to the benefit of her children by reason of his trust relation to them.</p>

Louis City Circuit Court—Hon. Vital W. Garesche, Judge. (1) Plaintiffs have pursued the proper remedy, (a) The probate court- has no general chancery jurisdiction. State ex rel. v. Bird, 253 Mo. 580; Kelley’s Probate Griiide (4 Ed.), p. 110,. sec. 115. (b) This suit is to be distinguished from one against an administrator (and perhaps his sureties) to recover assets reported in his final settlement, but not turned over to the distributees. State ex rel. v. Welsh, 175 Mo.

—Hon. Kimbrough Stone, Judge. (1) Tbe respondent under tbe Constitution owes certain duties and is charged witb certain responsibilities. Mo. Cons. secs. 4 and 30, art. 2. Tbe Charter of Kansas City was adopted subject to tbe limitations of the Construction and tbe laws of Missouri, and must be in substantial harmony therewith. Charter, sec. 1, p. 97; Charter, Art. 14; Kansas City v. Bacon, 147 Mo. 259; Hass v. Ward, 186 Mo. 325.

—Hon. James A. Cooley, Judge. (1) The court erred in sustaining the demurrer, for the reason that Sec. 9258, R. S. 1909, confers express power on the city to make such extension, and Sections 9261 to 9275 prescribe a complete scheme for the condemnation, and said sections comprise authority and the only authority in the statutes- whereby private property may be taken or damaged by a city of the third class for public purposes, (a) And Section 9262 gives the circuit courts…

<p>Appeal from St. Louis Circuit Court.—Hon G. A. Wurdeman, Judge.</p> <p>(1) Under mortgage clause providing that the policy shall not he invalidated as to the mortgagee by the acts of the mortgagor, and providing for subrogation of the insurer to the right of the mortgagee, on payment of the loss, the insurer, where the policy has been invalidated as to the mortgagor, is entitled to subrogation to the extent of the mortgage debt, on payment of the loss to the mortgagee. Hackett v. Ash, 72 So. (Ala.), 54; Traders Ins. Co. v. Race, 142 111. 343; Insurance Co. y. Martin, 151 Ind. 209; Allen v. Fire Ins. Co., 132 Mass. 483; Canton Co-op. Bank v. Ins. Co'., 219 Mass. 135; Aetna Life Ins. Co. v. Fire Ins. Co., 98 Neb. 449; Hare v. Headley, 54 N. J. Eq. 548, 558; Badger v. Platts, 68 N. IT. 224; Ulster Comity Savings Inst. v. Leake, 73 N. Y. 165; Moulton y. Ins. Co., 36 S. D. 344; Fire Ins. Co. v. Davis, 25 Tex. Civ. App. 343; Gillespie y. Ins. Co., 61 W. Va. 177; 4 Cooley’s Briefs on Insurance (1 Ed.), p.3916; Fire Ins. Co. v. Beffrey, 48 Minn. 12. (2) Under the provisions of the policies, that they were void if the interest of the insured be other than unconditional and sole ownership, or if the subject of the insurance be upon land not owned by the insured in fee simple, said policies were rendered void by the failure of respondent Margaret Mosby to disclose the interest of her husband in said property, when the policies were applied for. American Ins. Co. v. Barnett, 73 Mo. 367; Mers v. Franklin Ins. Co., 68 Mo. 131; Lochner v. Home Mutual Ins. Co., 17 Mo. 255; Koontzy- Hannibal Savings & Ins. Co., 42 Mo. 131; Ice & Power Co. v. American Fire Ins. Co., 196 Mo. App. 247; Holmes v. Kansas City, 209 Mo. 525; Turner v. Home Ins. Co., 195 Mo. App. 141; Genessee Falls Assn. v. Fire Ins. Co., 44 N. Y. Supp. 980 ; Schroedel v. Humboldt Fire Ins. Co., 158 Penn. 461. (3) Equity will reform a policy, upon parol evidence, only when the agreement really made between the parties, has not, through accident, mistake or fraud, been correctly incorporated in the written instrument; both agreement and mistake must appear by the clearest evidence, and the court will not supply an agreement that was never made. Tesson v. Atlantic Ins. Co., 40 Mo. 36; Grand Lodge v. Sater, 44 Mo. App. 453; Mead v. Westchester Fire Ins: Go., 64 N. Y. 455. (4) Had the decree in favor of respondents on the issue of reformation of the policies, been correct under the evidence and principles of equity, the finding of the court nevertheless should have been in favor of appellants because, by the clear weight and preponderance of the testimony in the case, it was shown that prior to the fire respondents conveyed their interest in the property to the Thieleckes. Chambers v. Chambers, 227 Mo. 284; Trabne v. Ins. Co., 121 Mo. 83 ; Dreher v. Aetna Ins. Co., 18 Mo. 135; Eddy v. Ins. Co., 21 Mo. 589; Wishart v. G-erhart, 305 Mo. App. 116; Roe v. Ins. Co., 78 Mo. App. 455; Loan Co. v. Brown, 59 Mo. App. 469; Mackey v. Basil, 50 Mo. App. 193; Marcus v. Ins. Co., 187 Mo. App. 336; Barnard v. Ins. Co., 27 Mo. App. 33. (a) Even a preponderance of the evidence is insufficient to overcome the effect of a notary’s certificate of acknowledgement; the evidence sufficient for this purpose must be clear, cogent and convincing. Springfield Co. v. Donovan, 147 Mo. 630; Fifer v. McCarty, 243 Mo. 47; Webb v. Webb, 87 Mo. 543; Barnett v. Davis, 104 Mo. 555; Rust v. Goff, 94 Mo. 518. (b) Respondents’ evidence showing an agreement to convey gave rise to a presumption that they executed a deed in conformity to such sale as in the usual course of business. Fitzgerald v. Barker, 85 Mo. 21; Fox v. Windes, 127 Mo. 511. (c) Possession of the instrument by the Thieleekes was shown, and such possession is prima-facie evidence of delivery. Pitts v. Sheriff, 108 Mo. 115; Scott v. Scott, 95 Mo. 308; Fontaine v. Boatmen’s Savings Inst., 57 Mo. 561. (d) The conveyance of the property back to the respondents, after the loss, did not work a revivor. Marcus v. Ins. Co., 187 Mo. App. 336.</p> <p>(1) Subrogation is a doctrine of equity intended to enable fire insurance companies which have paid a loss caused bv the wrongful act of a third party and for which the insured would have an action, to be substituted for the insured and recover the damages which might have been recovered by the insured. Being an equitable doctrine, courts will not enforce a claim for subrogation unless to do so would be equitable under the circumstances. Loewenstein v. Ins. Co., 227 Mo. 100; Traders’ Ins. Co. v. Race, 142 111. 338; 5 Joyce on Insurance, sec. 3537; Pomeroy, Eq. Jur. (2 Ed.) sec. 1419, note. (2) The payment in this case of the insurance to the mortgagee was a payment in satisfaction of the debt, which was thereby extinguished. Loewenstein v. Ins. Co., 227 Mo. 124; Ins. Co. v. Ramsey, 76 Ore. 570, 149 Pac. 542, Ann. Cases, 1917B, 1132,' L. R. A. 1916A. 556; Carpenter v. Ins. Co., 16 Pet. 495, 10 U. S. (L. Ed.) 1044; Cone v. Niagara F. Ins. Co., 60 N. Y. 619; Havens'v. Germania Ins. Co., 135 Mo. 649; Home Ins. Co. v. Marshall, 48 Kan. 235, 29 Pac. 161; Graves v. Hampden Ins. Co., 10 Allen (Mass.) 281; Burton-Lingo Co. v. Patton, 15 N. M. 304, 107 Pac. 679-, 27 L. R. A. (N. S.) 420. (3) In this case to enforce subrogation, and hold that the right of the mortgagors to have the insurance paid in satisfaction of the debt was lost, would be to enforce an unconscionable agreement. (4) The policies in question were issued payable to Margaret Mosby, instead of to her and her husband, because of a mutual mistake. It was the intention of the companies to make the policies payable to the owners of the property. The president of the Yeckel Agency Co. held a deed of trust on the property and also a certificate of title showing that the title to the property was in the name of Mosby and her husband jointly. Equity will correct a mistake whenever it is necessary to do so in the interests of justice. Hearne v. Marine Ins. Co., 20 Wall. 488; 1 Cooley’s Briefs on Insurance, 855; Clem v. German Ins. Co., 29 Mo. App. 673; Balen v. Fire Ins. Co., 67 Mich. 179; Leitensdorfer v. Delphy, 151 Mo. 160; Smith v. Canning Co., 14 Mo. App. 522; Williamson v. Brown, 195 Mo. 313 ; Meek v. Hurst, 223 Mo. 688; Mfg. Co. v. Car Co., 21Ó Mo. 715. (5) There is nothing in this case to show that the plaintiffs are guilty of any laches. Bucher v. Hohl, 199 Mo. 330; Meriwether v. Overly, 228 Mo. 242; Spurlock v. Sproule, 72 Mo. 511. (6) There was no change of title which, would violate the conditions of the policy. Terry v. Glover, 235 Mo. 544; Wimpey V. Ledford, 177 S. W. 302; TJlbrigh v. Stevenson, 237 Mo. 233; 2 Cooley’s Briefs, 1742; Whitney v. American Ins. Co., 127 Cal. 464; Schaeffer v. Fire Ins. Co., 113 Iowa,'652; Hogadone v. Fire Ins. Co., 133 Mich. 339; Humphrey v. Fire Ins. Co., 12 Fed. Cas. 883; Dean v. Equitable Fire Ins. Co., 7 Fed. Cas. 301; Brown v. Manufacturers’ Ins. Co., 156 Mass. 587; Baldwin v. Phoenix Ins. Co., 60 N. H. 164; Home Fire Ins. Co, v. Collins, 61 Neb. 198; Walton v. Phoenix Ins. Co., 162 Mo. App. 316.</p>

—Hon. William O. Thomas, Judge. (1) Under the Charter of Kansas City in force at the time of these proceedings (Sec. 20, Art. X, p. 180, Charter 1898), the lien of the assessments involved herein attached from the date of the taking effect of the ordinance and continued until paid or collected in full, both principal and interest.

—Hon John A. Rich, Judge (1) There was sufficient evidence of guilt to support the verdict. State v. Maurer, 255 Mo. 168; State v. Concelia, 250 Mo. 420; State v. Howard, 203 Mo. 603. (a) An unsupported allegation of passion and prejudice presents nothing for review. State v. Howell, 117 Mo. 342; State v. Gonce, 87 Mo. 630; State v. McBrien, 265 Mo. 594; State'v. Mace, 263 Mo. 157.

Certiorari. (1) In certiorari, to review the opinion of a Court of Appeals reference in the opinion to the pleadings, judgment and orders in the case of McQueen v. VanDeusen, makes them as much a part of the opinion as if fully-written out therein. State ex rel. Kansas City v. Ellison, 220 S. W. 498.

—Hon. Lawrence A. Vories, Judge. (1) The publication of notice of the special election was sufficient. Sec. 8672, R. S. 1909; State ex rel. Webber v. Tucker, 32 Mo. App. 620; Young v. Downey, 150 Mo. 317; Standefer v. Dykeman, 151 Mo. App. 600. (2) In ascertaining the city’s indebtedness the amount in the sinking’ fund levied and collected for the payment of the principal of outstanding bonds, and applicable to no other purpose, should he deducted. 5 McQuillin on Munic.

—Hon. Harris Robinson, Judge. (1) Sec. 868, R. S. 1909, enacted in 1909, Laws 1909, p. 347, as construed in the Young case, is in direct conflict with Art. II, Sec. 30, Constitution of Missouri, and XIV. Amendment of IF. S. Constitution.

Habeas Corpus. (1) The power to return a person from one state to another in which he stands charged with a crime arises solely from See. 2, Art. IV, Constitution of the United States.

—Hon. J. D. Perkins, Judge. (1) The law favors vested estates and wlien tliere is a doubt whether the estate is vested or contingent the doubt will be resolved in favor of tbe vested estate. Chew. v. Keller, 100 Mo. 362. (2) The word “children” should be construed to mean the children of Sarah living at the date of the execution of the deed. Roberta was about five years of age at the time the deed from her grandfather was delivered to the trustee.

Louis City Circuit Court.—Hon. George H. Shields, Judge. (1) A creditor who has obtained a judgment against a corporation and a return of execution nulla bona may then proceed against the holders of unpaid stock. 10 Cyc. 725 and 731, tit. Corporations; Shickle v. Watts, 94 Mo. 410; Meyer v. Min. & Mill. Co., 192 Mo. 162. (2) The judgment against the corporation is conclusive on the stockholder. Nichols v. Stevens, 123 Mo. 96; Johnson v. Stebbins-Thompson Ry. Co., 177 Mo. 581.

<p>1. CORPORATION: Unpaid Stock: Suit Against Stockholders: Referee: Suit in Equity. A proceeding against stockholders, after return of a nulla dona execution issued under a judgment against the corporation, to enforce its payment, although one on execution under the statute to recover upon unpaid stock, will be dealt with by the appellate court upon equitable principles, and conclusions will be reached upon the evidence, .independently of the conclusions of the referee and trial court.</p> <p>2. -: Unpaid Judgment: Unpaid Stock: Proceeding Against Stockholders. In view of the constitutional and statutory provisions, that stock or bonds of a railroad corporation “shall be issued only for money paid, labor done, or money or property actually received,” the courts will determine, in a proceeding against stockholders to enforce payment, of a judgment against the company after the return of a nulla dona execution, what portion of the stock issued to a subscriber had been paid at the time of its delivery, where it recites that it was fully paid and non-assessable, notwithstanding the certificate of the Secretary of State issued to the railroad company.</p> <p>3. -: -: -: -: Purchaser from Subscriber: Knowledge. The purchaser of stock from a subscriber to whom it was issued, with knowledge that the stock had not been fully paid for either in money or money’s worth, and that not to exceed twenty per cent of its face value had been paid for either in money, property or services, may be compelled, by a proper proceeding upon execution, after a return of a nulla dona execution issued under a judgment against the company in favor of a creditor of said company, to pay to said creditor, in satisfaction of said judgment, the difference between the face value of the stock purchased by him and said twenty per cent; and the evidence in this case shows that the purchaser from the subscriber, at the time of his purchase and from the organization of the company, had both actual and constructive notice that not exceeding twenty per cent .of the face value of the stock had been paid and that the remaining eighty per cent was at no time paid.o</p> <p>4. -: Stock: Purchaser: Untransferred Upon Books: Equitable Owner. The purchaser of stock from the subscriber to whom issued, although it has not been transferred to him upon the corporation’s books, but entitled to be so transferred, is its equitable owner, and, in an equitable proceeding, may be compelled to pay the judgment of a creditor against the company, after nulla dona return of execution, to the extent that the unpaid portion of said stock, issued with knowledge on his part that it had not been paid for, bears to its face value.</p>

<p>Appeal from Ray Circuit Court.-—Hon. Arch B. Davis, Judge.</p> <p>(1) The judgment of the trial court finding for plaintiff is erroneous in this, that the evidence fails to show that plaintiff had a legal title to the land in dispute. Without the legal title, plaintiff could not recover. Chaput v. Pickle, 250 Mo. 578; Adkins v. Adams, 256 Mo. 2; Carter v. Masey, 239 Mo. 518; St. Louis v. Blast Furnace Co., 235 Mo. 27; Nalle v. Thompson, 173 Mo. 614; Martin v. Kitchen, 195 Mo. 487. (2) The fact that the City of Hardin, its officers and representatives stood by and permitted the railroad company and its lessees to take possession of the land in controversy, erected valuable buildings and improvements thereon, at the expenditure of large sums of money, clearly worked an estoppel against it. Dunklin v, Chouteau, 120 Mo. 595; City of St. Joseph v. Railway Co., 268 Mo. 47; Town of ¡Montevallo v. School District, 268 Mo. 217; St. Louis v. Railroad, 248 Mo. 10; Simpson v. Stoddard County, 173 Mo. 421; Reuter v. Lawe, 34 L. E. A. 733; County of Boone v. Railroad, 139 U. S. 684, 35 L. Ed. 323; Peoria v. Central Natl. Bank, 224 111. 43, 12 L. R. A. (N. S.) 696. (3) The doctrine of equitable estoppel applies to municipal corporations the same as to individuals. Simpson v. Stoddard County, 173 Mo. 421; Dunklin County v. Chouteau, 120 Mo. 577; Town of Montevallo v. School District, 268 Mo. 217; County of Boone v. Railroad, 139 IT. S. 684, 31 L. Ed. 323. (4) It cannot be seriously insisted that the plat or dedication signed January 10, 1869; by Hughes, Shaw, Spurlock and McGinnis and acknowledged by them and recorded in the county plat-book is valid or that any legal rights were acquired thereunder. It was surely absurd and impossible in its description. The property intended to be located therein could not be ascertained. R. S. 1865, sec. 1, p. 40; State ex rel. Bras-well v. Tucker, 48 Mo. 531.</p> <p>(1) The plat, although it fails to definitely locate the land platted, is admissible in evidence, as color of title and as characterizing the nature of the city’s possession. Laddonia v. Day, 265 Mo. 396. (2) The arrangement of the lots facing on this strip, the north- and-south streets extending through it, coupled with the fact that the city has kept the strip open to the public and the dedicators have not attempted to take possession or convey the property since the filing of the plat, conclusively shows an intention on the part of the dedicator to include this strip in the plat, and on the part of the city to accept it for public use. City of Hardin v. Ferguson, 196 >S. W. 746; Buschmann v. St. Louis, 121 Mo. 535. (3) The plat of the original town, coupled with the acts of user, control and supervision on the part of the city, show an intention on the part of the owners to dedicate, and of the city to accept for public uses, the land in controversy. And this is so, although the plat may not be sufficient as a statutory dedication. City of Hardin v. Ferguson, 196 S. W. 746; City of California v. Howard, 78 Mo. 88; Buschmann v. St. Louis, 121 Mo. 523; Heitz v. St. Louis, 110 Mo. 618; McGrath v. Nevada, 188 Mo. 102; Naylor v. Harrison-ville, 207 IMo. 341; Rose v. St. Charles, 49 Mo. 508; Conner v. Nevada, 188 Mo. 148; Price v. Breckenridge, 92 Mo. 378; Curran v. St. Joseph, 264 Mo. 659; Benton v. St. Louis, 217 Mo. 705'; St. Louis Ry. v. Lindell Ry., 190 Mo. 246; Otterville v. Bente, 24Ó Mo. 291; Long-worth v. Sedevic, 165 Mo. 221; Tracy v. Battle, 213 Mo. 303. (4) The judgment in the former case is res adjudicaba as to Cunningham and Ferguson. Davidson v.'Ins. Co., 249 Mo. 474; Emmett v. Aldridge, 231 Mo. 124. (5) The railroad acquired no title by adverse possession: First, because evidence is not sufficient; Second, because under the statute then and now it could so acquire only such property as was necessary in the actual construction and operation of the railroad. Laws 1886, p. 332; Sec. 3049, R. S. 1909; Third, because it cannot so acquire property dedicated to public use.' City of St. Louis v. Mo. Pac. Ry., 114 Mo. 13. (6) The City of Hardin is not estopped to claim title to the land in controversy.</p>

<p>1. QUIETING TITLE: Construction of Will: limitations: Action at Law. A suit to ascertain and determine the title which devisees and their bodily heirs took under a will, and to determine the issue of title by limitations, is an action at law.</p> <p>2. Will: Remainder: Vested: After-born Children: Cotenants. The testator, after providing for his wife and making certain specific legacies, gave to his four children, Mary, Robert, Perthana and Joseph, the residue, to “be held, used and enjoyed by them only for and during their natural lives and after their death to the children born of their bodies, and in case of either of my children dying without children born of their bodies, the other children shall take the share of such deceased child, to be held with the same limitations as the original bequest;” and directed that “in making the division of my real estate” Robert and Mary should have set off to them the farms on which they then resided, respectively; and by a codicil, he declared that “instead of my son Robert taking the farm on which he lives, I desire that my son Robert and my son Joseph take my home place jointly.” In an attempt to divide the real estate, Mary and Perthana and their husbands conveyed the home place to Robert and Joseph, and they in turn conveyed other lands to Mary and Perthana. Held, that considering the will and codicil together, the testator contemplated and intended that Robert and his bodily heirs should take an undivided one-half interest in fee simple in said home place; that Joseph and his bodily heirs should take, an undivided half interest, therein; that said Robert and Joseph each took a life estate as cotenants; that the children of Robert, born of his body who were living at the time of testator’s death, became vested as remainder-men with the fee simple title to an undivided half interest in said home place, subject to the life estate of their father; that children born of the body of Robert after the testator’s death were entitled to taire' and share as remaindermen with those previously, born; that the children of Joseph, likewise, took the title as remaindermen in the other undivided half; and that the children of Mary and Perthana took no interest whatever under said will and codicil in said home place. •</p> <p>3. LIMITATIONS: Cotenants: Conveyance of Life Estate. Where one tenant in common holds possession of land it will be presumed, in the absence of evidence to the contrary, that he holds possession for the benefit of himself and the other cotenants; but such presumption may be refuted by a showing that he has acquired a good title by open, exclusive and adverse possession, under a claim of absolute ownership. Where land was devised to four children and the heirs of their bodies, and one of them for money paid acquired by deed, which attempted to convey the fee simple, title, the interests of the others, and after their death, claiming to be the owner, remained in exclusive possession for ten years after their bodily heirs had reached lawful age and were capable of suing, such remaindermen are barred by limitations.</p> <p>4. APPELLATE PRACTICE: Review of Findings: Limitations. In an action at law, tried by the court sitting as a jury, where no instructions were asked and there -tffere no rulings on the admission of evidence adverse to appellants, the findings of the trial court on the question of the possession of plaintiffs being adverse and exclusive and other issues relating to title by limitations, the evidence being substantial, are binding upon the appellate court.</p>

<p>1. CONVEYANCE: Mental Capacity: Inconsistent Acts. The contemporaneous execution of a deed and of a power of attorney, by which the maker gave to the grantee complete dominion over the property, do not comport with that average intelligence which should be manifest in the making of solemn instruments.</p> <p>2. -:-:«-: Different Signatures. It is almost universal knowledge that aged persons sign their names in a uniform manner. It is a minor matter, but worthy of notice, in determining the grantor’s mental capacity, that she signed her name to a deed “Elizabeth L. Glebb” and within a half hour or so thereafter signed it to a power of attorney “Mrs. E. L. Glebb,” on both occasions before the same notary public.</p> <p>3. -: -: Execution Shortly Before Death. Ordinarily a difference of one day between the execution of a deed as shown by the notary’s certificate, and its execution as shown by the testimony, where no question of priority is involved, will constitute only a fragile reason for questioning its authenticity. But where the grantor may be said to have been in the throes of death it matters much, as determinative of her mental capacity, whether it '■ was executed 24 or 48 hours before her death.</p> <p>4. -; -: Contradictory Testimony: Deference to Chancellor. Where the witnesses who were present at the time of the execution of the deed by the aged grantor, who had for sometime been afflicted with severe kidney disease and was then an extreme sufferer, testified unequivocally to her mental soundness and her understanding of the transaction at that particular time, and a disinterested physician, called for the first time very shortly after-wards to treat her, testified that she did not know much about what she was saying or doing and did not have sufficient mental capacity to make a deed or to know the natural objects of her bounty or what property she owned, the appellate court will defer to the finding of the trial. chancellor, who had a superior opportunity of seeing and hearing the witnesses and weighing their testimony.</p> <p>5. -: -: Reformation. If the grantor was mentally able to make a deed it follows, in the absence of any convincing proof to the contrary, that she knew what property she was conveying, that it was correctly described in the deed and comprised what she intended to give to the grantee, and that therefore said deed cannot be reformed to include other lands.</p> <p>6. -—: Inequitable. In determining whether a conveyance by an aged woman to another by whom she, in her severe sickness, was being cared for, was inequitable, the nature of the property so conveyed should be compared with that which went by inheritance to the grantor’s natural heirs.</p> <p>7. EVIDENCE: On Appeal in Equity Suit. Error in the admission of testimony by the trial chancellor in an equity suit is immaterial on appeal, for if the testimony was incompetent it will be disregarded by the appellate court and such judgment rendered as in equity and good conscience the pleadings and relevant testimony authorize.</p>

—Hon. Thomas J. Seehorn, Judge. Transferred to Kansas City Court of Appeals.

<p>1. CONVEYANCE: Testamentary Character. If the terms of a deed show that the intention of the grantor was to pass a present irrevocabl'e interest in the property to the grantee, it is not testamentary in character.</p> <p>2. -: -: Effective Upon Grantor’s Death. A deed reciting that “this deed shall not take effect until after the death of the parties of the first part” and that “it is further agreed by said parties that this deed and writing shall be placed in the Recorder’s office at Union, Missouri, for safe-keeping till after the death of the said parties of the first part” is testamentary in character and void.</p> <p>3. :-; -: -: Direction for Safe-keeping. Words in a deed designating the place where it was to be kept during the grantor’s life add force to its other words that it “shall not take effect until after the death” of the grantor. They indicate that, a present interest in the land was not intended to be conveyed.</p> <p>4. -: Non-delivery: Recording: Fraud. Where the deed said that “this deed and writing shall be placed in the Recorder’s office at Union, Missouri, for safe-keeping till after the death of the parties of the first part,” the unauthorized filing of it for record constituted no delivery, but a fraud upon the grantors.</p> <p>5. -: Mental Incapacity. Where the testimony as to the grantor’s mental status was contradictory, hut it is certain therefrom that he was for years subject to numerous absurd delusions entertained only by a weak mind, that he was completely under the domination of the grantee and that he transferred all his property without other consideration than the grantee’s promise, the finding of the trial chancellor, who saw and heard the witnesses, that the grantor was mentally incapable of making the transfer, will not be disturbed on appeal.</p>

<p>-1. EVIDENCE: Improper Answer: What He Thought. Where one of the contested issues in the action for “made” land was how far southward a certain island had been extended by accretion, and the question asked plaintiff was, “Does- the island extend only to where defendant claims, or to the slough, or where does it go?” his answer, “I think I bought it clear over to the slough,” should have been stricken out on motion. What he thought about the matter was not a statement of fact, but a mere opinion, and under the facts what the plaintiff thought .may have influenced .the jury in arriving at their verdict for him.</p> <p>2. -: Written Instruments: Tax Receipts: Oral Testimony of Their Contents. Unless a proper foundation is laid for the introduction of secondary evidence, oral testimony of the contents of written instruments is not proper, but the instruments themselves should be offered. Where the plaintiff sued for an island recently formed, testimony that his tax receipts showed that he had paid taxes on 200 or 260 acres on the island should not have been admitted, • the receipts themselves being the best evidence, because they might show that the land sued for was not a portion of the land on which taxes were paid, and if they did show that plaintiff had paid taxes on the jland in dispute they would be a circumstance indicating the nature 'of his possession or of his claim to the land.</p> <p>3. ACCRETIONS: Description: In Instructions, Etc. In the trial of an action for “made” lands, the description in the instructions, verdict and judgment should fall within the description set forth in the petition.</p>

<p>Appeal from Jackson Circuit Court.—Hon. T. J. Seehorn, Judge.</p> <p>(1) Judgment should have been entered for the defendant, for the reason that under the pleadings and the evidence the plaintiff was not entitled to recover upon the alleged cause of action sued on. The plaintiff in its petition alleges the pendency of the proceedings to test the validity of the Maximum Freight Rate Laws, at the- time of the shipments in question, and then asks for judgment for three times the amount of the alleged overcharge pursuant to the penal provisions of Sec. 3248, R. S. 1909. It is settled that there can be no recovery for such penalties. White v. Delano, 270 Mo. 33. (2) Plaintiff was allowed to recover, however, the actual difference between the old rate and the new rate, that is, it was allowed to recover on a different cause of action than that sued on. Its right to do so was challenged at all times. Plaintiff has no cause of action for penalties, although that is the ground upon which it sued. White v. Delano, 270 Mo. 33. In that case the court explicitly held that the penal section of the rate statute was suspended, but that the rate statute was not suspended. The court did not define the ground upon which recovery was permitted, hut it was presumably upon common law principles. (3) That the plaintiff construes its suit to be one to recover under the penal section of the State statute and not otherwise, is apparent from the body of the petition, wherein it sets up facts in an effort to show that the three year limitation statute which applies to penalties was stayed, This is also apparent from the prayer to the petition, the- evidence introduced, and the opinion of the referee. The prayer of the petition is an'index to the construction placed upon the petition by the pleader. State ex ihf. Barker v. Ry. Co., 265 Mo. 678. (4) Since plaintiff sued to recover penalties under the statute, it should not have been permitted to recover at common law, because that was a different cause of action from that upon which it sued. Ensworth v. Barton, 60 Mo. 511; Eyerman v. Cemetery Assn., 61 Mo. 489; Huston v. Ale Works, 56 Mo. 416; Robinson v. Rice, 20 Mo. 229; Chitty v. Railroad, 148 Mo. 64; Banning v. Met. St. Ry. Co., 157 Mo. 477; Harrison v. Railroad, 37 Mo. 307; Cole v. Armour, 154 Mo. 333; Hite v. Raliroad, 130 Mo. 132; 21 R. C. L. p. 608, sec. 152. Error is presumptively prejudicial. Davharsh v. Ry. Co., 103 Mo. 578; Hatch v. Bayless, 164 Mo. App. 223; Contracting Co. v. Storage Co., 186 Mo. App. 671; Morton v. ITeidorn, 135 Mo. 618. (5) The court committed error in refusing to permit defendant to introduce evidence to show that the rate prescribed by the Maximum Freight Rate Law 1907, was confiscatory, and offered proof in support of were made in 1911. The defendant pleaded that the rate provided by the Maximum Freight Rate Law of 1907, was confiscatory, and offered proof in support of the plea. The question as to the reasonableness of the rate in 1911, was not adjudicated in the Missouri Rate Case, 230 U. S. 474, because the final decree in that case, which was entered in April, 1909, dealt with the situation prior to that time, and the shipments in question were all made in 1911. Defendant has the right to challenge the validity of the rate in a suit between a single shipper and the carrier. State of Missouri v. C. B. & Q. Railroad, 241 TJ. S. 538. The Missouri Rate Case did not deal with the question as to the validity of the rate under conditions as they existed almost three years after the entry of the final decree. Missouri v. C. B. & Q. Railroad, 241 H. S. 539. (6) A denial of the right to investigate the validity of the rate in 1911, which was long after the period with which the decree 'dealt in the Missouri Rate Case, and permitting the plaintiff to recover the difference between the old rate and the new rate, would constitute the taking of property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U. S. 418. The record in the case of Missouri v. Chicago, Burlington & Quincy Railroad Co., 241 U. S. '536, shows that the Supreme Court did not pass and could not have passed upon the question involved in this case. Furthermore, the decree in the Missouri Rate. Case did not and could not hare prevented the defendant from showing the unreasonableness of the rate as applied to a particular shipper or a particular commodity. Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co., 39 Sup. Ct. Rep. 237, 243; Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585. (7) There was obviously very substantial merit in the defendant’s contention that the rate on apples was confiscatory in 1911. State ex rel. v. Public Service Comm., 270 Mo. 565; 19 New International Encyclopaedia, p. 574; State ex rel. v. Public Service Comm., 270 Mo. 555.</p> <p>(1) The judgment was consistent with the case and within the issues found by the pleadings. White v. Delano, 270 Mo. 16; Sec. 2100, R. S. 1909; Hewitt v. Harvey, 46 Mo. 368; O’Bannon v. Railroad 111 Mo. 'App. 202; Conley v. C. B. & Q. and Wabash Rys., 192 Mo. App. 534; M. K. & T. v. Wnlf, 226 U. S. 570, 57 L. Ed. 355; Liese v. Meyer, 143 Mo. 547; Saline County v. Sappington, 64 Mo. 72; Sharkey v. McDermott, 91 Mo. 657; Northcraft v. Martin, 28 Mo. 471; Iba v. Railway, 45 Mo. 469; McGrew v. Mo. Pac. Ry., 87 Mo. App-. 250; Calvert v. Railroad, 34 Mo. 243; State ex rel. v. Sale, 153 Mo. App. 282; Plynell v. Meadows, 170 Mo. App. 37; State ex rel. v. Chicago & Alton Ry., 265 Mo. 646; Hartwig v. Ins. Co., 167 Mo. App. 128. (2) The decision in the Missouri Rate Case, 230 U. S. 474, to which appellant was a party, is res adjudicata that the Maximum Freight Rate Laws of 1907 were not confiscatory as to all shipments made in 1911, and the court properly refused to relitigate that matter. Missouri Rate Cases, 230 U. S. 474, 57 L. Ed. 1571; State of Missouri v. C. B. & Q. Ry., 241 U. S. 533, 60 L. Ed. 1143; Milling Co. v. Southwestern Rv., 39 Sup. Ct. Rep. 237, 63 L. Ed. 517; 1 Ry. Co. v. McKnight, 244 TJ. S. 368, 61 L. Ed. 1200; Knoxville v. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371; Darnell v. Edwards, 244 U. S. 564, 61 L. Ed. 1317; In re Louisville, 231 U. S. 639, 58 L. Ed. 413; Williams v. Hayti, 184 S. W. (Mo.) 470; Ex parte Young, 209 U. S. 123, 52 L. Ed. 714; In re Englehard & Sons Co., 231 TJ. S. 646, 58 L. Ed. 416; Railway v. Grill, 156 IT. S. 649, 39 L. Ed. 567; Railway v. Minnesota, 134 U. S. 418, 33 L. Ed. 970; Railway Co. v. Railroad Commission of Alabama, 161 Fed. 972. (3) Defendant railroad elected to test, once and for ail, the validity of all the rates in one proceeding by the remedy of injunction and is bound by the result of that election. Authorities above. (4) Defendant railroad, by the proceedings it instituted to enjoin the enforcement of each and every statutory rate, is estopped to deny that their validity was adjudicated. ' Same authorities.</p>

<p>Appeal from St. Louis Circuit Court.—Hon. John W. McElhinney, Judge.</p> <p>Transferred to St. Louis Court of Appeals.</p>

<p>1. QUIETING TITLE: Particularizing Defendant’s Claim. In an action brought under Section 2535, Revised Statutes 1909, and praying the court to -ascertain and determine the interests of the parties in the real estate involved, the petition may particularize as to the adverse claim of defendant.</p> <p>2. STREET IMPROVEMENT: Area Tax: Invalid. Ordinance: Gross Inequalities. An ordinance of. the City of St. Louis, although within the terms of the charter which requires the benefit district to be bounded by two lines, one of which is to be midway between the street to bb improved and the next parallel street on one side, and the other a line half way between the street to be improved and the next parallel or converging street on the other side, is void if it distributes the area tax in grossly unequal proportions, in blind obedience to the charter provision; and where there were parallel streets on both sides of the street to be improvea, but on one side the next parallel street was close to it, and on the other it was almost a half mile to the next parallel street, and plaintiff had a frontage of 254 feet on that side and it was assessed to a depth of 1248 feet, the inequalities were so gross as to render void an area tax of $4,107,19 assessed under the ordinance.</p> <p>3. -: -: -: Validity of Charter. The court will not declare void the old charter of St. Louis, which requires a benefit district for levying area taxes for street improvement to extend one half the distance from the street to be improved to the next parallel or converging street bn each side, as violative of the Fourteenth Amendment, but will declare void an ordinance pas'sed in pursuance to said charter provision if, under the physical facts, it fixes, a benefit district wherein gross inequalities of benefit taxes result.</p> <p>4. -: -: Cemetery Uses. Evidence that while plaintiff’s property is now used for cemetery purposes, it might, in the near future, have a different use and thereby call for streets to be run through it, is immaterial on the question whether the benefit district was laid off in such a way as to impose a grossly unequal area tax upon said property. The particular use of the property at the time, or its prospective future use, is. not a material question in determining whether the. ordinance fixing the tax according to area imposed gross inequalities upon properties in the benefit district.</p> <p>5. -: -: ———: Quieting Title: Lien or Cloud: Evidence. An action to declare title is equitable in character, if it aslts the court to find that a special tax bill is a cloud upon plaintiff’s title and to declare the title to be in plaintiff, free from the lien of such tax bill; and being equitable, it is triable ele novo on appeal, and any evidence improperly admitted by the trial chancellor may be excluded, without a reversal. •</p> <p>6. -: Invalid Ordinance: Estoppel. The owner of land does not by signing á petition asking that a certain kind of material be used in paving the street estop himself to question a subsequent ordinance so fixing the benefit district as to impose a grossly unequal area tax upon his property; nor does the fact that he paid two installments of such illegal tax estop him- to attack the validity of the ordinance.</p>

<p>1. METROPOLITAN POLICE: State Agency. The municipal police officers, including tbe members of tbe police boards, of St. Louis and Kansas City, constitute a part of the agencies adopted by the State to preserve the peace and protect the legal rights of persons. The expense of the police system in such cities, including the expense of the boards of police, is borne entirely by the cities and paid out of their respective treasuries, in a manner prescribed by statute; but though the city carries the expense of the board of police and the police system generally, it does this as the agent of the State, and in pursuance to its laws, which it has no discretion about obeying.</p> <p>2. -: Alarm Boxes: Power to Buy. The power of the Police Commissions of Kansas City is not restricted to “the renting of apparatus for police alarms,” but they have power to purchase and contract for the purchase of such alarm boxes.</p> <p>3. -: Contract to Purchase Boxes: Failure to Pay: Damages: Mandamus. In a suit on a contract with the Police Commissioners of Kansas City for the purchase of police alarm boxes, in which plaintiff demands payment for boxes delivered and accepted, and for damages for boxes completed under said contract and refused, wherein plaintiff has the right to affirm and the Commissioners to deny that the boxes complied with tl^ specifications of the contract, that they were delivered or tendered, or have not been paid for, or the obligation to take them has not been released, mandamus is not the remedy; but the appropriate proceeding is an action at law, wherein either party may demand a jury and the claim be established by a verdict and a judgment, which the city must pay if it is included in the estimate of the expenses made by the Commissioners; and if they will not so include it, then mandamus would be appropriate to compel them to do so.</p> <p>4. -: -:• Civil liability. The Board of Police and the police system of Kansas City generally do not compose a department of the. municipal government, and hence the rule that no action will lie against a department of a municipality does not control the question of the liability of its Board of Police or its Police Commissions to be sued on a contract.</p> <p>5. -: -: -: Expense Not Settled by Auditor. Although the police system of Kansas City is a state institution, yet as the expense for its maintenance is paid out of the city treasury, the items of cost are not embraced within the statute which requires the State Auditor to audit, adjust and settle all claims against the State and payable out of the State Treasury.</p> <p>6. -: -: -: Demand for Money: Party Defendant. A demand for money arising under a contract entered into between plaintiff and the Police Commissioners of Kansas City cannot be presented for payment either to the officials of the city or to those of the State, but must be presented to the Police Commissioners, and if they .refuse payment, plaintiff’s recourse by action, if any he has, must be against them, either sued in the name of a distinct entity, as was mistakenly done in this case, or in their individual names, but in their official capacity. The precise question, in such an action, is the proper defendant or defendants, rather than whether the Board of Police is a tfwasi-corporation.</p> <p>7. -: Quasi-Public Corporation: Action on Contract. The Board of Police of Kansas City is not a q’Mcm-public corporation in any such sense as will authorize a suit against it on a contract. Even if- it be admitted that the Police Commissioners compose a body corporate, in the absence of a statute giving to the body a distinctive name whereby it may sue and be sued, an action will not lie against it by any name a suing plaintiff may choose to adopt, nor by any other name or style than the names of its members. But it does not follow that, if the board is not a corporate body, an action based on a valid contract made by it will not lie against its members in their own names, but not in their personal capacity.</p> <p>8. -: Police Commissions: Liable to Action on Contract. When public officers are entrusted with definite powers and duties, and in the course of their duties and acting within their powers, they give rise to legal rights in other persons, especially when such rights grow out of a contract, and no way exists to enforce them except by an action against the officers as such, an action will lie against them. This is the doctrine of the common law, and, statutes on the subject are mainly declaratory of the common law.</p> <p>9. QUASI-PUBLIC CORPORATION: Definition. The words “quasi-corporation” is a phrase applied to a body which exercises certain functions of a corporate character, without having been created a corporation by any statute, general or special; but they cannot be defined with precision. In. some bodies which have been accorded -corporate character in judicial rulings, without having been incorporated by an express legislative act, the dominant fact was a defined territory with power to act and contract through its governing officers, such as counties or school districts; in other instances, groups of persons entrusted with public functions, like overseers of highways and boards of education, have been regarded as g-aowi-bodies politic, but these are such only because they are so recognized by the statutes or immemorial usage. The most influential circumstance whereby to determine whether or not public officials are g-wasi-corporations is that the law, either by immemorial usage or by the implications to be drawn from relevant enactments, has recognized -them as such, without expressly declaring them to be.</p> <p>10. -: -: Power, to Contract. It is an extravagant notion that every officer or body of officers vested with power to make contracts to a limited extent which are not binding on them personally is, by that fact alone, made into a corporation.</p> <p>11. -: Police Commissioners. The Police Commissioners of Kansas City are not a body politic by immemorial usage, and they have not been erected into a corporation by legislative' acts. While they have power to make contracts within a small compass, they are not authorized to use a seal; they are not spoken of in the statutes as a corporation; the title of the property which may be acquired by their action is not required to be vested in them as a body corporate; they have been given no distinctive name, certainly not the name of “Board of Police Commissioners,” and hence by that name they cannot be sued, since the statutes do not say that they shall have power, as such, to sue or be sued.</p> <p>12. -■—: Different Boards and Commissions Collated: Powers of Each. The manner in which the many boards and commissions for public purpose have been established and the different powers conferred suggest that the Legislature has pursued a policy of selection in the matter of incorporating them. Those created corporations with •enumerated faculties are enumerated in the opinion; those not expressly declared to be bodies corporate, but with power conferred to sue and be sued, are likewise enumerated; and others which have neither been created corporations nor declared capable of suing or beipg sued, are also enumerated.</p> <p>13. METROPOLITAN POLICE: Sued As Quasi-Corporation: Style of Suit. The Board of Police of Kansas City not having been endowed with a name or other corporate attributes, actions against the board should be instituted in the name of the members and in their official character. A petition entitled, “American Fire Alarm Company, Plaintiff, v. Board of Police Commissioners Of Kansas City, Missouri, now Composed of James Cowgill, President, John R. Ranson and John Halpin, Commissioners, Defendant,” is subject to demurrer, since the Board of Police Commissioners is nor a body politic, and an action cannot be maintained against it as such, and the Police Commissioners are not mentioned either in the title or the body of the petition by way of making them parties.</p> <p>14. -: -: -: Parties: Service. The mere mentioning of Police Commissioners in the title and in the body of the petition, but not by way of making them parties, cannot be accepted as sufficient to make them parties and to authorize them to bo served with process, as they 'must be if parties. Where they are sued as an entity and as a single defendant, service of process upon them personally is not necessary, but only on the chief officer.</p> <p>15. -: Action on Contract: Ultimate Liability. An action for the balance due for police alarm boxes sold and delivered under a contract between plaintiff and the Police Commissioners of Kansas City, an action of indebitatus assumpsit for the value of boxes delivered and accepted under said contract, and an action for damages for breach of said contract by refusing to accept boxes completed _ and ready to deliver at the time of the breach, may b© maintained against the Police Commissioners in their own names and in their official character, and the ultimate liability, if any, is on the city, and not on the Stato.</p>

-—Hon. Arch B. Davis, Judge. (1) The court should have given the peremptory instruction to find for defendant asked at the close of all the evidence in the case for the reason that plaintiff had utterly failed to make a case either under his pleadings or the evidence, (a) In this petition plaintiff alleged two acts of negligence—in furnishing a defective locomotive and in starting the locomotive without warning.

—Hon. Thomas B. Buckner, Judge. (1) The court erred in refusing to give defendant’s demurrer to the evidence. The bond provided against acts of larceny or embezzlement and the alleged breaches were not that character of wrong doing. (2) The court erred in submitting the James T. Eobinson (O’Connell) transaction to the jury.

<p>1. NEGLIGENCE: General Allegation: Instruction for Specific Negligence. If the allegation of negligence is general, an instruction authorizing a recovery on the finding of any specific acts of negligence, proven by the evidence and coming within the general statement, is permissible. So, tha't where the petition charged that the street car attempted to cross a railroad track and in doing so went in front of a freight train, by which it was knocked from the track and plaintiff (a passenger) was severely injured, and that “the collision and injuries were caused by the carelessness and negligence of the servants of defendant street railway operating said street car,” its allegations of negligence were general, not specific; and an instruction which permitted plaintiff to recover if defendant’s servants, in the exercise of proper care before crossing the railroad track, could have ascertained if a train was closely approaching and proceeded to cross without doing so, was witliin the general allegation, and not erroneous.</p> <p>2. -: General and. Specific Allegation: Servants. An allegation that the collision and plaintiff’s injuries “were caused by the carelessness and negligence of the defendants, Durham and Harvey, receivers of the Metropolitan Street Railway Company, their servants, agents and employees operating said street car,” does not charge specific negligence. In order to allege specific negligence, the averment must point out, npt only the particular servant of whose negligence complaint is made, but also in what manner they, or some of them, were negligent.</p> <p>3. -: -: In Operating Car. An allegation that plaintiff was injured by the negligence of defendant “in operating said street car,” as distinguished from negligence in using a defective track or defective machinery, is general, but limited to a particular subject. The petition may describe the general circumstances of the incident, the agency or instrumentality of the defendant through which the injury occurred, without the pleader being able to point out the particular act or defect which caused it; in such case, the allegation is general, but limited in scope; it confines the issues to a definite field, without specifying the definite act*</p> <p>4. -: Street Car: Crossing Railroad: Instruction: Invited by Defendant. The defendant cannot complain of an instruction telling the jury that even though they might find that the servants of the railroad in charge of the train which collided with defendant’s street car were guilty of pegligence, that did not relieve the defendant’s employees from their duty to properly care for the safety of plaintiff, a passenger on the street car, where defendant, by the evidence it had, introduced, had invited the instruction.</p> <p>5. -: Instruction: Flagging Car:. Definition. The verb “flag” does not necessarily imply the use of a flag. In its secondary sense it signifies a signal given as with a flag, which, may be done as by a waving of the hand. In common railway parlance the words “to flag said crossing” may mean that the conductor of a street car, as it approached a railroad track, was to go forward . to the crossing and ascertain if the car could safely proceed, and if so, to wave to the motorman in the usual way to come on;' and where all the evidence shows that the word “flag” was used in that sense, it is not error to instruct the jury that if defendants in charge of the street car failed “to flag said crossing,” etc.</p> <p>6. -: Permanent Disabilities: Pleading. A -petition alleging that "the plaintiff received painful and permanent injuries,” and then proceeds to specify the injuries as a fracture of the bones of his leg, severe injuries to his internal organs and nervous - systeih, that Tiis ears were caused to bleed'and his hearing "im- . paired, and that his right leg was bent and deformed, justify á¡a instruction telling ' the jury, in estimating .plaintiff’s damages, ' .to take into consideration any “permanent disabilities which the evidence shows he has reasonably and certainly suffered.”</p> <p>7. -: Excessive Verdict: $10,000. Plaintiff, a passenger on a street car, at the time he was injured, was fifty years old and earning thirty-four dollars per week; for twenty-two months after he was injured he was unahle to walk; his right leg was crushed; the skin was torn from the leg from the knee to the ankle and the covering of the bone was exposed for about four inches; portions of the bones of his leg were destroyed, and sloughed off during the healing process; some of his ribs were fractured; he suffered great pain, and the injuries are permanent. Held, that a verdict for ten thousand dollars was not excessive.</p>