Volume 299 — Missouri Reports

Louis City Circuit Court. — Hon. William A. Taylor, Judge. (1) The alleged contract is so indefinite that there is no meeting of the minds and the contract is unenforcable. The contract specifically provided that it was against Comensky’s contract with Godchaux, and under Godchaux’s contract six hundred sacks were to be shipped each month commencing with January.

Louis City Circuit Court. — if o». Gran-ville Hogan, Judge. (1) If all the evidence offered were admitted to he true it would afford no basis for the decree entered by the trial court. The evidence offered is not sufficient to establish an executed trust, which must be established before plaintiff can recover, there being no consideration, pleaded or proven, for the alleged promise by Mil-liken.

— Eon. Samuel Davis, Judge. (1) In construing an alleged libelous publication, the court should take the article as a whole and determine its meaning and effect from its entire contents and from the occasion, surrounding circumstances, and the apparent object of the writer. St. James Military Academy v. Gaiser, 125 Mo. 526; Julian v. Kansas City Star, 209 Mo. 76; 25 Cyc. 357.

— Hon. John G. Slate, Judge. (1) The law favors compromises and settlements. Cullen v. Ins. Co., 126 Mo. App. 412. When a right is disputed and a compromise ensues, that compromise will not be disturbed should it turn out afterwards that one of the parties had no right at law. Such a principle would overthrow all compromises. The compromise of a doubtful claim is a good consideration for a contract. Reilly v. Chouquette, 18 Mo. 226.

<p>1. EXCESSIVE VERDICT: New Trial Granted: Abuse of Discretion: Remittitur. Where the trial court found as a fact that the verdict for plaintiff was excessive, and granted a new trial, not on the ground of excessiveness of the verdict, but because of error in instructions given, this finding of the court that the verdict was excessive is to be taken as true upon plaintiff’s appeal, unless the evidence shows the contrary at least clear1 y enough to make out an abuse of discretion. Nor can the appellate court, were this the only valid ground for a new trial, order a remittitur.</p> <p>2. NEW TRIAL GRANTED: Appellate Practice. Upon an appeal by plaintiff from an order granting defendant a new trial in an action at law, the judgment of the appellate court must either order the reinstatement of the verdict and judgment thereon, or affirm the trial court’s order and remand for the new trial which has been ordered.</p>

— Hon. Samuel Davis, Judge. (1) By admitting in the answers that title stood in appellant by mesne deeds from a common source and then alleging that appellant’s title was acquired with knowledge and notice of the rights of respondents, they affirmatively asserted a fact of the issue between the parties, and placed the burden of proving that fact upon these respondents. The burden of proving a fact is on him who asserts it affirmatively. Glover v. Henderson, 120 Mo. 367.

<p>1. SCHOOL TAXES: To Pay Private Debts: Injunction. The levy of school taxes being less than the maximum rate permitted by law, the courts cannot enjoin their collection on the sole ground that the school board intend to divert a part of the money when collected to the payment of the private debts of directors.</p> <p>2. ■ — ■—-: -: Levy Within Statutory Limit: Diversion. The statutes commit to the school board the duty to make the estimates of school taxes for the year, and if the board in making its estimates keeps within the lawful limits of the levy constitutionally authorized by the voters, the courts have no power to reduce the levy or enjoin its collection, nor will they revise the levy merely because it is thought a sum in excess of the needs of the district will be collected, nor because there is some evidence tending to show an intent on the part of the board to divert the money, after its collection, to another purpose, such as the payment of the personal debts of its members, since that can be dealt with when an attempt at diversion is made.</p>

Certiorari. (1) In passing upon a petition for a writ of certiorari against an inferior appellate court to determine whether or not the decision is in conflict with a controlling decision of this court, this court will look only to the decision of the respondents to determine the facts, with this important exception, to-wit: That if the decision of respondents refers to documents or written instruments in the case, then this court will examine them to determine whether or…

<p>1. EJECTMENT: Adverse Possession: Jury Question. Where plaintiff in ejectment is the owner of'the record title, the question of defendant’s title hy adverse possession, if dependent entirely on oral testimony, even though it makes out a strong case for him, is one for the jury.</p> <p>2. -: -: Limitations: Admission. It is incumbent upon the party relying upon the Statute of Limitations to prove not only open, notorious and continuous possession for the requisite period but also the character of the possession. B'ut this rule does not make an issue where the defense is admitted to be good.</p> <p>3. -: -: -: Judicial Admission. Where there is no evidence of an agreed line, and plaintiff in his action of ejectment testifies to the sufficient duration, notoriety and continuity of defendant’s possession, and also that defendant claimed, for more than ten years, in good faith, to own the land and that he himself knew all these things for more than ten years, his testimony is a judicial admission of the facts to which he testifies, and makes out defendant’s title by limitations.</p> <p>4. -: Possession Subject to Future Ascertainment of Line: Paying Taxes. The fact that defendant in the ejectment suit, who asserts title by limitations, paid no taxes on the land in suit is a circumstance which would be competent upon the issue of adverse possession, but it is not in itself sufficient to make an issue upon that question, nor to carry the case to the jury upon the question whether defendant held possession subject to future ascertainment of the true line, nor can it be held sufficient to destroy plaintiff’s judicial admission that defendant’s possession was held under a claim in good faith that the land was his. Besides, in the face of such an admission, the burden is upon plaintiff, if he desires to rely upon it, to show a folding of possession by defendant subject to the future ascertainment of the true line.</p> <p>5. -: Judicial Admission: Asking Instructions: Waiver. Where plaintiff’s testimony makes out defendant’s case, and concedes every element of adverse possession necessary to establish title in defendant, the asking of instructions by defendant, after his request for a directed verdict is denied, does not waive his right to urge as error t]ie refusal to give such direction.</p>

<p>1. TAX-DEED: Subject to Unpaid Special Taxes. Under the charter of Kansas City, a purchaser at a sale of real estate for delinquent city taxes by his tax-deed takes an absolute estate in fee simple subject to all unpaid special taxes and assessments which are liens thereon.</p> <p>2. -: -: Exception: Contractor’s Tax-Bill. The Charter of Kansas City provides that the purchaser at a sale of real estate for delinquent city taxes by his tax-deed takes an absolute title in fee simple “subject to all unpaid state, county and city taxes, general and special taxes or assessments which are liens thereon.” Held, that this language permits of no exception, and includes tax-bills or special assessments issued to contractors in paynient for the construction of a curbing or other public improvements in front of the lots.</p> <p>3. -: -: Impairment of General Taxing Power: Constitutional Inhibition. Whether charter provisions declaring that a purchaser at a judicial sale of real estate to pay general city taxes by his tax-deed takes an absolute estate subject to “unpaid special tax-bills and assessments” issued to contractors in payment for a public improvement, impair the necessary taxing power of the city, is a matter of local concern. Such provisions do not conflict with the Constitution, which nowhere declares that general city taxes shall be a lien of any kind upon real estate, and consequently such charter provisions cannot be held to be invalid because they make unpaid special tax-bills which are liens.on. the proper superior liens to unpaid general city taxes.</p>