Volume 30 — Missouri Appeal Reports

<p>Error to the Phelps Circuit Court, Hon. C. C. Bland, Judge.</p>

Louis Circuit Court, Hon. Shepard Barclay, Judge. The court erred in excluding evidence as to the character of the compromise offered, and of Blackman’s efforts to induce his creditors to accept his compromise; Bridge Qo. v. Granger, 4 Conn. 148. If an offer of compromise is connected with other matters important as' evidence in the same letter, the whole letter may be read in evidence. Unthank v. Ins.

Louis Circuit Court, Hon. Daniel Dillon, Judge. A new trial cannot be granted except on a motion filed at least one day befoi’e it is heard or determined. Rev. Stat., sec. 3558. It should not be granted except for good cause shown. Rev. Stat., sec. 3633. General statements are merely the conclusions of the attorney. The facts must be given so that the court can determine. Beibinger v. Taylor, 64 Mo. 66 ; Griffin v. Veil, 56 Mo. 310; Qowan v. BercTier, 5 Mo.

Louis Circuit Court, Hon. George W. Lubke, Judge. The plaintiff company had no power under the law to either directly or indirectly purchase, deal, or traffic in its own stock. 1 Morawetz on Priv. Corp. [2 Ed.] secs. 113, 434; Tkomp. on Liab. Stock., sec. 234; Currier v. Slate Co., 56 N. H. 262.

J. R. Woodside, Judge. A default is regular where it is taken after defendant has failed to plead within snch time as required by statute or the rules of court. Rev. Stat., sec. 3675. This default was taken on the third day of the second term. Interlocutory and final judgments may be taken at the same term and this may be the first term where the petition containing the items of the accoúnt was. served by copy. Acts 1883, p. 125, sec. 1, amending,. Rev. Stat., sec. 3681.

H. C. O’Bryan, Judge. The first sale was good between the parties and against subsequent purchasers with actual notice thereof. Caldwell v. Head, 17 Mo. 561; Stevens v. Hampton, 46 Mo„ '404; Ryan v. Carr, 46 Mo. 483. The record shows that respondents had actual knowledge of the previous sale-to appellant, at the time they bargained for the trees,, and before the purchase price was paid. But it is not necessary to prove actual knowledge.

H. C. O’Bryan, Judge. When, upon defendant’s first application for a change of venue, based on the alleged prejudice of the judge and the undue influence of the opposite party over his mind, , Judge Wilson, the regular common-pleas judge, vacated the bench, and a special judge was elected and sworn to try the cause, defendant’s right to a change of venue was exhausted under the act of 1881, and his second application should have been overruled. Sess.

<p>Appeal from the St. Louis Circuit Court, Hon. Daniel Dillon, Judge.</p> <p>If the failure of one party to perform his contract be but partial, leaving a distinct part as a subsisting and executed consideration, and leaving- the other party his action for damages for the part not performed, the contract cannot be rescinded and treated as no longer affecting the rights of the parties.. FranTding v. Miller, 4 A. & E. 599. Where a contract is to be rescinded at all, it must be rescinded in loto and the parties put in static quo, and where there has been a partial execution of the contract it cannot be rescinded, and a suit will not lie for monies had and received. Hunt v. SiZTc, 5 East, 249; Feed v. Blandford, 2 Y. & J. 278. One party to a contract cannot retain the advantage he has gained by a-partial performance and consider the contract rescinded because of the non-performance- by the other party ; but he must do all the contract requires of him and seek his-remedy in damages. MeOrillis v. Garitón, 37 Vt. ; Edward v. G7iqpham, 1 M. &. W. 231. The ability to restore the other party to Ms statu quo is an absolute-condition precedent to the exercise of the right of rescission. Melton v. Smith, 65 Mo. 315. One cannot be permitted to retain a title acquired in performance of an agreement and at the same time repudiate the agreement. Bibb v. Means, 61 Mo. 284.</p> <p>The money sued for was deposited with appellant as security to indemnify him against loss in the performance of the contract of publication,, and upon his abandonment of said contract, respondent had the right to treat the same as rescinded, and recover the deposit in an action as for money had and received. The only question presented in this caséis one of pleading, appellant’ s counsel insisting that respondent was limited to-an action of damages for breach of the contract. Appellant’s proposition in this behalf, as stated in his brief, fails entirely, when we reflect that this money was not paid under a written contract, but only as security to protect appellant from loss in case he should perform said contract, and that a partial performance by appellant was equivalent to no performance, because the contract was an entirety. 1 Story on Contracts, sec. 606. When a contract is entire, any failure of complete performance works a total failure of consideration. An entire contract is a contract the consideration of which is entire on both sides. 1 Story on Cont., sec. 26. Where the thing delivered was different from what was contracted for, or was not delivered in accordance with the terms of the contract, such delivery is not part performance ; and the plaintiff, upon failure of defendant to comply with the contract, may treat the contract as rescinded', and bring such action without a re-delivery or tender of what was so delivered. Colville v. Besby, 2 Denio, 139. Again, as appellant testified on trial that said books were entirely without value to him, it was unnecessary to return them. 1 Story on Cont., sec. 605; Beeturn v.. Burkholder, 69 Pa. St. 249. The action of assumpsit for money had and received is less restricted and fettered by technical rules and formalities than any other form of action. It aims at the abstract justice of the case, and looks solely to the inquiry whether the defendant holds money which ex aequo et bono belongs to the plaintiff. ClaJUn v. Godfrey, 21 Pick. 6; Foxv. Car Co., 16 Mo. App. 122. Where one receives money to hold upon a condition, or for a special purpose, and that purpose is not accomplished through his default, the money thus held is to the use of the party who paid it, and is recoverable in this form' of action. Carter v. Carter, 14 Pick. 428; Smith v. McCluskey, 45 Barb. 616; Hotchldss v. Judd, 12 Allen, 447 ; 4 Wait’s Act. & Dei. 501-2.</p>

Louis County Circuit Court, Hon. William W. Edwards, Judge. Shall the holder The note was properly admitted in -evidence. The respondent feeing in possession of the note sued on' and being the payee thereof will be presumed rightly in possession and may recover without proof of ownership, Wic7cershaw v. Jarvis, 2 Mo. App. 279 ; Glasgow v. Switzer, 12 Mo. 394.

E. M. Hughes, Judge. The case is stated in the opinion. I. The affidavit or complaint of respondent does not comply with the requirements of the statute in such case made and provided, in form and language, or in substance. The affidavit or complaint of respondent does not contain any charge for removing an administrator known to the law or to the statutes of this state. Rev. Stat. 1879, sec. 27.

James H. Slover, Judge. The case and facts are stated in the opinion of the court. I. It is insisted by the appellants that the petition does not state facts sufficient to constitute a cause of action against them. The petition shows no privity whatever between the defendants, Quinlan, Montgomery & Company, and the plaintiff. There is no allegation or averment that these defendants ever undertook or agreed to pay the plaintiff White any sum of money whatever.

Louis Circuit Court, Hon. Daniel Dillon, Judge. The court erred in admitting testimony of plaintiff’s witness Shea. The amount of damages was the question for the jury to' decide, not the witness.

Ben. E. Turner, Judge. The records show that the motion to quash was not filed until the twelfth day of September, 1887, the day the case was set down for trial in the circuit court on appeal, and after conviction before the justice. “If an indictment be improperly and irregularly found, the defendant may before plea, move to quash it for such irregularity.” People v. Briggs, 60 How.

<p>t. Practice — Issue of Fact. — When material facts are in issue and there is any evidence tending to prove them, the case must go to the jury.</p> <p>8. Express Company — Identification of Property Owner. — A consignor of goods which were not delivered at their destination, but were brought back to the place of shipment, may demand their return to him, and cannot be 'denied them by the application of a rule of the express company for the identification of consignees.</p>

Ben. E. Turner, Judge. If plaintiff had the legal possession of the noté, of which there can be no doubt, it had the right to sue and maintain this action for the collection of the same. As between the American Insurance Company and the Home Insurance Company, the Home was the legal owner in law and in fact. Prom every view of the «ase the -Honré Insurance Company is the real party in interest, and it alone can sue on the note.

Louis Circuit Court, Hon. Daniel Dillon, Judge. The letter of December 2 was, as declared on, conditional upon Killeen’s signing and returning the renewal therein contained. If he did this by the next mail, then he might draw at sight for the amount of the acceptance already outstanding, when due, and take the same up.

Louis Circuit Court, Hon. Shepard Barclay, Judge. We insist that the only damages recoverable in this case, conceding that there was negligence in the delivery of the message, is the amount paid for its transmission, which was twenty cents. Hadley v. Boxendale, 9 Exch. 341; 1 Sutherland on Dam. 74; Fisher ». Goebel, 40 Mo. 475; Waters v. Brown, 44 Mo. 302; State v. Powell, 44 Mo. 436 ; Sprague v. Telegraph Co., 6 Daly, 200.

E. M. Hughes, Judge. All contracts which by common law are joint only shall be construed to be joint and .several. Rev. Slat., secs. 658, 659-61. Plaintiff has the right to sue W. B. McAllister either individually or as administrator of the partnership estate. Banlc v. Qottey, 70 Mo. 150, and cases cited.

John L. Thomas, Judge. The summons in this case is-void, because it fails to state the “sum demanded,” as required by statute. Rev. Stat., sec. 2858; Brandenburger v. Easley, 78 Mo. 659. The summons is also void, and the court had no jurisdiction of the case, because it was served by a deputy constable without disclosing the name of his principal. Rev. Stat., sec. 2858, 2862; Mangold v. Dooley, 89 Mo. Ill; Fletcher v. Wear, 81 Mo. 524; Eyerman v. Payne, 28 Mo. App. 72.

J. G. Wear, Judge. The authorized and executed contract made with a school teacher cannot be broken by the school directors on the ground that the levy made at the annual meeting of the school district for a teachers’ fund is insufficient to raise the amount needed. Rev. Stat., 1879, secs. 7031-46 ; Wilson v. Board, 63 Mo. 137; McQutchen v. Windsor, 55 Mo. 149 ; Arnold v. School District, 78 Mo. 226; 1 Dillon on Mnn. Corp. [3 Ed.] sec. 24; Buchanan v. School District, 25 Mo.

E. M. Hughes, Judge. It is obvious that the law of 1885 was a natural consequence of the decisions of this court and of the Supreme Court, that the railroad company is not liable under section 809 of the Revised Statutes, unless the animal was injured by contact with the engine or train of the railroad company. Boggs v. Railroad, 18 Mo. App. 274; Gilbert v. Railroad, 23 Mo. App. 65; Seibert v. Railroad, 72 Mo. 565.

<p>Appeal from the St. Louis Circuit Court, Hon. George W. Lubke, Judge.</p> <p>In an action to recover for injury from vicious habits of domestic animals the scienter on the part of the defendant must •be shown to entitle plaintiff to recover. Bell v. Leslie, 24 Mo. App. 661; Patee v. Adams, 4 Pac. Rep. BOB; 1 Chit. PL 82; 2 Id. 680.; Decker v. Gammon, 44 Me. 328; Vrooman v. Lawyer, 13 Johns. 339; Buxendin v. Sharp, 2 Salk, 662; Mason v. Keeling, 12 Mod. 332; Holden v. Shattuck, 34 Yt. 386; Kennedy v. Morgan, 57 Vt. 46; Sweeney v. Railroad, 10 Allen, 372 ; Rumsey v. Nelson, 11 N. E. Rep. 63. The defendant is not liable in this action for having ordered the mule shot and killed. The mule was injured so that his intestines protruded. The natural result would have been death. Harrison v. Railroad, 88 Mo. 629, 630; Railroad v. Finnegan, 21 111. 649; Jackson v. Railroad, 74 Mo. 526. The court should have non-suited the plaintiff for the further reason that it appeared conclusively from plaintiff’s own evidence, that plaintiff, i. e., his .driver, was as" negligent as the defendant’s driver. Schoenlau Friese,. 14 Mo. App. 436. There being no conflict of testimony, the court shall determine the question of negligence. Fletcher v. Railroad, 64 Mo. 484. The absence of hitching posts an excuse for not' taking due care : Telegraph Oo. v. Quinn, 56 111. 319. The court erred in asking the defendant this question: “Then was that the amount you expected to pay Mr. Nulsen at the time you ordered him shot?” This question and its answer was calculated to prejudice the defendant’s case before the jury and was irrelevant, injurious, and improper.</p> <p>Taking the bits out of the horses’ mouths and leaving them to drink, without in anywise securing them, or leaving any one in attendance, on a public thoroughfare like Front street, in East St. Louis, with four railroad tracks, within one hundred feet, boats continually passing tip, down, and across the river, was certainly gross negligence.. Wharton on Negligence,-820. Plaintiff does not and never did contend that the killing of plaintiff’s mule at defendant’s command rendered him liable.for the injury occasioned by the collision ; but we do maintain that it was perfectly proper for us to draw out of defendant on cross-examination an admission that after he had learned the facts he considered himself liable to plaintiff and proposed to pay the reasonable value of the mule.</p>

Ben. E. Turner, Judge. The-plaintiffs must show title to the notes, all of which we have done by alleging in the petition that the payee of the notes, since the execution of the same, died; that an administrator was appointed; that the administration has been closed; that the plaintiffs are the only heirs of the payee of the note.

Louis Circuit Court, Hon. Daniel Dillon, Judge. A lien at common law is defined to be a mere right in one man to retain possession of personal property until certain demands of him, the person in possession, are satisfied. 21 Am. Law Reg. 151 ; 3 Parsons on Contracts [7 Ed.] chap. 9, sec. 1; Phillips on Mechanics ’ Liens, sec. 473.

Ben. E. Turner, Judge. Thak the clauses set out separate offences, see State v. Westy. 84 Mo. 440, and State ©.. Darner on, 8 Mo. 494. The-indictment has undertaken to charge- two distinct and separate offences in one count, and so-mingled the offencestogether that the defendant'cannot tell-with what he is charged. It does not aver that they were not married! to each other. The state must, prove that fact; hence it; is necessary to aver it.

<p>Appeal from the St. Louis County Circuit Court, Hon. William W. Edwards, Judge.</p> <p>Under the pleadings and admitted facts in this case the plaintiff Todd should not have been allowed to have Long substituted, for there was no proper case for recovery. Buffington v. Land Qo., 25 Mo. App. 492. The special finding of the jury must prevail over the general verdict opposed thereto. Rand ©.. Grubb, 26 Mo. App. 592. In this case the finding of the jury on the first special issue is fatally opposed to their verdict, to the effect that' Crutsinger did not pay value for the nóte which plaintiff proved he bought for the purpose of using as a setoff. The note is a proper setoff. Nickerson r>. Gilliam, 29 Mo. 456 ; McAdam v. Ross, 53 Mo. 199; Qutler v. Qoók, 77 Mo. 388; Smith v. Spengler, 83 Mo. 408; Gibson v. Nagel, 15 Mo. App. 597.</p> <p>The court did not err in admitting Long to the record as a party plaintiff. Rev. Stat., sec. 3563. At any rate his admission to the record was not prejudicial to the defendants, and if error was committed it will be disregarded. Rev. Stat., sec. 3569. In order to entitle a party to offset a ■claim in actions of this kind, he must have owned it, and. it must have been due at the time of the institution of the suit. Hophins v. Fetcher, 47 Mo. 331 ; Reppy v. Reppy, 46 Mo. 573; Waterman on Setoff, sec. 381; Smith v. Spengler, 83 Mo. 412. The filing of the petition is the commencement of a suit in cases of this kind. Rev. Stat., sec. 3485 ; Qosline v. Thompson, 61 Mo. 471.</p>

<p>1. - Pleading — Amendment—New Cause oe Action. — An original' petition was in the nature of an action at law on an administrator’s-bond. Upon demurrer thereto being sustained, an amended petition was filed, asking for a setting aside of the administrator’s final settlement. Held, that this was a substitution, by amendment, of one cause of action for another, and, therefore, inadmissible.</p> <p>2. Limitations — Divisibility as to Plaintiff Distributees. — Several plaintiffs being distributees of an estate, and the statute of limitations being successfully maintained against all of them except one, who was under disability when the right of action accrued, thedefence should be recognized as to the other plaintiffs, but may be-disregarded as to the one who was under disability, to the extenti of her distributive share.</p> <p>S. Evidence — Personal Judgment. — A judgment rendered in favor of an administrator in his personal capacity only, is not admissible evidence in a suit against him charging maladministration upon a mere showing that the judgment debtor was, in fact, indebted to the estate in the administrator’s charge.</p> <p>4. Administration — Final Settlement, Impeachment of. — An-administrator’s final settlement is in the nature of a judgment, and evidence to impeach it for fraud ought to be clear and satis- ’ factory. It is not enough to show that errors may be found in it ;■ since, to undertake their correction would merely amount to a new trial of the settlement, instead of a solemn proceeding in equity to attack a judgment for fraud in its concoction.</p>

Marshall Arnold, Special Judge. It is fundamental that a plaintiff cannot recover for anything beyond that sued for, or not embraced in his pleadings. White v. Chaney, 20 Mo. App. 389; Phleger v. Weltner, 21 Mo. App. 581; Kemp v. Foster, 22 Mo. App. 643. The court permitted the plaintiff to state that he saw a telegram from defendant requesting the company to withhold part of the order. This was hearsay evidence and clearly incompetent.

James M. Sandusky, Judge. The case is stated in the opinion. I. The indictment was drawn under the merchants’ act; it charged a sale of less than five gallons, but failed to charge that defendant was a merchant, an essential ingredient of the offence. Sess. Acts of 1887, p. 217; State v. Fanning, 38 Mo. 409 ; Bishop Statutory. Crimes, sec. 1034. II. The indictment was not good under the dram-shop law, as it failed to charge a sale of less than one gallon.

Richard Field, Judge. The case and facts are stated in the opinion of the court. I. - There is no evidence to support the verdict in-this case, and it ought not to stand. Lionberger v. Pohlman, 16 Mo. App. 392 ; Ellis v. Bray, 79 Mo. 227 Fischer v. Transfer Company, 13 Mo. App. 133. II. Plaintiff sues for the conversion of sixteen steers.

James M. Sandusky, Judge. Statement of case by tlie court. This is a contest over the following claim presented to the probate court against the estate of Adam O. Woods by William W. Woods, Ms son : . “In Probate Court of Platte County, Missouri, to October term, A.D. 1888. “Estate of Adam C. Woods, Dr. to William W“ Woods. “ For work done on farm and services rendered in attending to business of deceased from January 1, 1875, to January 1, 1882, a period of seven years, at…

E. M. Hughes, Judge. The case and facts are stated in the opinion of the court. I. The court erred in overruling the plaintiff’s , motion asking that defendants’ appeal to the circuit court be dismissed. The plaintiff was entitled to the protection granted him by section 2476, Revised Statutes, 1879, before the justice had any right to grant the appeal, and . the bond taken under section 3042, was insufficient. The appeal was taken only by Wm.

G. H. Burckhartt, Judge. The case is stated in the opinion. I. The court below erred in refusing appellants’ demurrer to the evidence offered by respondent. Rev. Stat., secs. 5720, 5726 ; Stamps v. Bridwell, 57 Mo. 22 ; Hickerson v. Benson, 8 Mo. 8 ; Wimer v. Pritchartt, 16 Mo. 255 ; Kitchen v. Greenabauvn, 61 Mo. 110; Rev. Stat., secs. 2881, 1102, 3844, 1103 ; Murphy v. Campbell, 36 Mo. 110. II. The demurrer should have been sustained by the court below.

G. H. Burckhartt, Judge. The case is stated in the opinion. I. Although the clerk refers to the record proper for the motion for a new trial, it nowhere appears in the-bill of exceptions, and will not be noticed by this court. State v. Jansen, 80 Mo. 97 ; McKee v. Calvert, 80 Mo. 348 ; State v. Sweeney, 68 Mo. 97 ; City v. Opel, 67 Mo. 394; Robinson v. Hood, 67 Mo. 660, and cases cited. II.

Joseph P. Grubb, Judge. The case and facts are stated in the opinion of the court. I. There being no evidence thgt defendant Eoberts executed, the notes sued on, other than that he signed them “with his own hand,” the court erred in instructing the jury that, they might find against him if they believed he authorized some other persons to sign it for him. It was error to give an instruction not predicated upon the evidence.

E. L. Edwards, Judge. Statement of case by the court. The petition in this case alleges, in substance, that Dr. Jonas Menifee, of Nicholas county, Kentucky, died testate, leaving a will, which was duly admitted to probate, in 1866, in said county and state. By this will he left his 'property to his son, Frank S. Menifee, and wife, Mary, to hold and enjoy ‘during their joint lives, and to the survivor of them during life, with remainder to their children.

E. L. Edwards, Judge. The case and facts are stated in the opinion of the court. I. The property in controversy was, at the time of the purchase of the real estate on which it was situated, by plaintiff, a part of said real estate and passed to plaintiff by his deed from defendant as trustee. Gurry v. Schmidt, 54 Mo. 515 ; Railroad r>. Grawford, 68 Mo. 80 ; Rogers v. Grow, 40 Mo. 91 • Harlan d. Harlan, 15 Pa. St. 507. II.

E. L. Edwards, Judge. Statement of case by tbe court. This was an action, under section 3921, Revised Statutes, for trespass on lands. Tbe trespass was alleged to bave been committed by tbe defendants on tbe lands of tbe testator and in bis life, by cutting down, injuring, and destroying and carrying away timber, trees, and ties, standing and growing on said lands.

E. L. Edwards, Judge. I. The account upon which this suit is founded was presented to the probate court of Moniteau county by plaintiff and rejected, and the demand is res adjudicaba. McKinney, Adrrúr, v. Davis, 6 Mo. 501; Risher v. Roush, 2 Mo. 95; Railroad v. Traube, 59 Mo. 355; Hroom Leg. Max. [6 Ed.] p. 247, side pages 321, 331.

E. M. Hughes, Judge. The case is stated in the opinion. I. The judgment as to the wife is a personal judgment against a married woman and is, therefore, void. Corrigan v. Bell, 73 Mo. 53 ; Higgins v. Peltzer, 49 Mo. 156. The case of Merrill v. St. Louis, S3 Mo. 244, does not change the rule. That was an action for the wife’s 'tort, for which she has always been held personally liable. This is an action on her contract for damages.

<p>Appeal from the Shelby Circuit Court, Hon. Theodore Brace, Judge.</p> <p>Defendant’s demurrer to the evidence should have been given. Meyer v. Railroad, 64 Mo. 542 ; Holman v. Railroad, 62 Mo. 562; Braxton v. Railroad, 77 Mo. 457; Harlan v. Railroad, 18 Mo. App. 483 ; Fitzgerald v. Railroad, 18 Mo. App. 391; Sloop v. Railroad, 22 Mp. App. 593; Grow v. Railroad, 23 Mo. App. 357; Young v. Railroad, 79 Mo. 336 ; MiTburn v. Railroad, 21 Mo. App. 431; Welch v. Railroad, 20 Mo. App. 477. Plaintiff’s first instruction is too general. The question of negligence is thereby referred to the jury. Yarnall v. Railroad, 75 Mo. 583 ; Zimmerman v. Railroad, 71 Mo. 491 ; Abbott v. Railroad, 83 Mo. 272; Crews v. Lacldand, 67 Mo. 622. The second instruction given for plaintiff does, not mend the matter. It is also erroneous in failing to tell the jury that defendant was only liable if, after its servants discovered the danger, they failed to nse proper diligence and effort to avoid the injury. Rine v. Railroad, 88 Mo. 399 ; Young v. Railroad, 77 Mo. 340 ; Wallace r>. Railroad, 74 Mo. 594; Brown 'o. Railroad, 75 Mo. 428; Milburn v. Railroad, 21 Mo. App. 431; Welch v. Railroad, 20 Mo. App. 477. The evidence as to failure to give signals should have been excluded, and the plaintiff 5 s third instruction refused, for the reason that said evidence and instruction related to issues not presented in the case. Mdens v. Railroad, 72 Mo. 213; Brice case, 72 Mo. 414; Waldhier case, 71 Mo. 516 ; Roysdon v. Railroad, 82 Mo. 213; Meyers ». Railroad, 64 Mo. 544; Hassett v. Rust, 64 Mo. 328 ; Ilousherger n. Railroad, 43 Mo. 199. The instruction is inconsistent with plaintiff’s first and second instruction. Henschen v. O'Bannon, 56 Mo. 280; Lamport r>. Gas Co., 12 Mo. App. 575-6 ; Price v. Railroad, 77 Mo. 512 ; Lester v. Railroad, 60 Mo. 268-9. It is an erroneous statement of the law. Clay v. Railroad, 17 Mo. App. 632; Turner v. Railroad, 78 Mo. 578; Cathcart v. Railroad,®19 Mo. App. 113; Yannati v. Railroad, 70 Mo. 641. It assumes facts in issue. White v. Chaney, 20 Mo. App. 389; Mlori ¶. St. Louis, 3 Mo. App. 231. The court erred in refusing instructions asked by defendant. Under the amendment of section 806, Revised Statutes (Sess. Acts. 1881, p. 79), the damages given are penal.</p> <p>The first error assigned by appellant is that the court admitted illegal testimony. This is based on appellant’s theory that the omission of the signals could have no connection with the killing. Milburn v. Railroad, 21 Mo. App. 430. If beneficial to give signals after stock is seen approaching track, it may be beneficial even when not seen. Taylor n. Railroad, 83 Mo. 386; Robertson r. Railroad, 84 Mo. 119. Whether the omission to ring the bell and sound the whistle caused the killing is for the jury, and the connection between the omission and killing may be inferred from facts in evidence. Ilolman v. Railroad, 62 Mo. 562 ; Kendig v. Railroad, 70 Mo. 207. It is negligence to omit the signals which the law requires. Zimmermann v. Railroad, 71 Mo. 491 ; Kelley v. Railroad, 88 Mo. 548; Garl v. Railroad, 55 Mo. 482; Alexander «. Railroad, 76 Mo. 494. A primafacie case is made if the animal is killed at a crossing and signals are omitted, if the animal could escape. Kenrich v. Railroad, 76 Mo. 391; Turner v. Railroad.; 78 Mo. 578, 581; Goodwin v. Railroad, 75 Mo. 75 ; Petty v. Railroad, 88 Mo. 306; Alexander v. Railroad, 76 Mo. 494; Taylor v. Railroad, 83 Mo. 386; Robertson v. Railroad, 84 Mo. 119. It is not necessary to show any connection between the omission of signals and the killing. Per singer v. Railroad, 82 Mo, 197; Kenrich Railroad, 81 Mo. 525; Keim v. Transit Oo., 90 Mo. [314. The amendment to section 806, Revised Statutes, in Acts of 1881, p. 79, makes the railroad company responsible for damage at crossings when signals are omitted, unless defendant proves it was not caused by the omission. Huckshold v. Rail/road, 90 Mo. 548, 555. A common-law count for negligent killing is sufficient, and the omission of signals or any violation of law may be given in evidence under this count. MiTburn «. Railroad, 21 Mo. App. 426; Kendig r>. Railrovd, 79 Mo. 207; Graham v. Railroad, 75 Mo. 75; Alexander v. Railroad, 76 Mo. 494; McPheeters v. Railroad, 45 Mo. 22 ; Garner v. Railroad, 34 Mo. 235; Mapes v. Railroad, 76 Mo. 367; Edwards «. Railroad, 76 Mo. 399 ; Robertson v. Railroad, 84 Mo. 119.</p>

<p>Appeal from the Mississippi Circuit Court, Hon. Geo. H. Benton, Special Judge.</p> <p>The recital of the receipt of the consideration in the deed from George H. Bridges and wife to Martha Boyd is primafaeie evidence of its payment and precludes a recovery for the'first item of the account, there being no evidence to the contrary. 2 Wharton’s Evid. [2 Ed.] sec. 1042; Fontaine v. Savings Inst., 57 Mo. 552, 561; Holtoclier v. Hollocher, 62 Mo. 267, 274. Assuming that an indebtedness existed on account of the second and third items •of the claim, the right of Dora Bridges to recover rests upon the agency of her husband. Of this there was no sufficient proof. Eystra v. Qapelle, 61 Mo. 578; 2 Bishop’s Mar. Worn., sec. 396.</p> <p>Appellant, after conceding or assuming that there was some evidence of the agency, contends that there was not sufficient to establish the same, for the reason that the rule of law requires stronger and more satisfactory proof of the agency of a husband for a wife than is required in ordinary cases ; and cites in support of the same Eystra r. Qapelle, 61 Mo. 578, and 2 Bish. Mar. Worn., sec. 390. Ordinarily ■ agency will be inferred from circumstances and need not be proved by direct evidence. Hull v. Jones, 69 Mo. 287; Smith v. Warden, 86 Mo. 399. The rule, however, only applies to cases where the act of the husband as the wife’s agent is antagonistic to*the latter’s interest. An examination of Eystra v. Qapelle, and Rowell v. Klein, 44 Ind. 291, and McLaren v. Hall, 26 Iowa, 297, upon which the decision is based, will show the correctness of tins conclusion.</p>

<p>1. Trespass — Liability oe Absent Party. — In order to hold a party-liable for a trespass who was not personally present and participating therein, it is not sufficient to show only that he received the fruits of the trespass. There must also be evidence tending to prove that he received them with a guilty and assenting knowledge of the fact that they were procured by a trespass.</p> <p>3.--Evidence — Declarations oe Co-Trespasser. — The declarations of an alleged co-trespasser or co-conspirator with the party charged are not admissible against such party until the conspiracy-first be established.</p>

John L. Thomas, Judge. The court-erred in permitting the plaintiff to testify as a witness-in the canse. The effect of the ruling of the court was to permit the plaintiff, who was the only surviving party to the notes who was cognizant of the facts connected with them,, to testify in his own favor, as to facts material to the issues, when the lips of the deceased party, who alone could have opposed his testimony to • that of plaintiff, were sealed by death.

W. D. Hubbard, Judge. The cer- ■ tificate of a bank that a check is good is equivalent to acceptance. Morse on Banking [2 Ed.] 308-13-14; Bigelow on Estoppel [2 Ed.] 412-16. No particular form of certification is necessary. The mere verbal statement of the bank officer that the check is good will constitute a certification. Daniel on Neg. Inst., sec. 1606, p. 527;.

<p>Appeal from the Greene Circuit Court, Hon. W. D. Hubbard, Judge.</p> <p>The court of its own accord, and without plaintiffs’ request, and against defendant’s objection, submitted two special findings to the jury, which was error, as shown by the statute -on that subject and the decisions of this court. Sess. Acts, 1885, p. 214. There should have been a verdict for or against plaintiff Pettingill. The court erred in its instructions to the jury with reference to their verdict, virtually telling them that there need be no finding as to plaintiff Pettingill, and erred in receiving the verdict as rendered. McCord’s Adm’r r>. McCord, 77 Mo. 175; Ferguson v. Thatcher, 79 Mo. 511; Eichelman v. Weiss, 7 Mo. App. 87; Schweickhardt v. Si. Louis, 2 Mo. App. 582. Whenever the party averring the fraudulent sale shows that the sale was fraudulent, or offers evidence sufficient to take the case to the jury on that thepry, then the burden of showing a consideration paid, and the want of notice devolves upon the party claiming that his purchase was for value and in good faith. Whenever a prima-facie case of fraud is made, the law, in the absence of anything to the contrary, will presume that all the facts and circumstances attending the sale are known to the purchaser. Salsa ». Salsa, 8 Mo. 308 ; Bishop ¶. Schneider, 46 Mo. 482 ; Johnson v. McMurry, 72 Mo. 278 ; Bar son v. Porter, 22 Mo. App. 179.</p>

<p>Publio Schools — Non-Resident Pupil. — A minor -who is neither an* orphan nor an apprentice, and whose parents reside without the school district, is not entitled to attend a public school without payment of tuition fees, although having a home, more or less permanent, within the district.</p>

Louis Circuit Court, Hon. Leroy B. Valliant, Judge. If Hammett bought the note upon the admissions made by Barnum that the 'note was given for a valuable consideration, and that the advertisement was made without her authority, and that she would pay the note when it became due, Barnum is estopped from now saying that it was procured by fraud. Newman v. Hook, 37 Mo. 207; Ghouieau v. Goddin, 37 Mo. 229 ; Justice v. Lancaster, 20 Mo.

W. D. Hubbard, Judge. To constitute the offence of which appellant is charged, two élements are essential: the criminal intent of abandonment without cause, and the failure and refusal to provide for the wife. These two elements must concur, otherwise the offence is not •complete. State v. Fuchs, 17 Mo. App. 461 ; State v. White, 45 Mo. 512.

C. C. Bland, Judge. The motion for new trial is not incorporated in, nor called for by, any bill of exceptions, and the court cannot review any errors occurring at the trial. State ex ret. v. BurcTcTiartt, 83 Mo. 430; Rotchford v. Cramer, 65 Mo. 48; Stevenson v. Saline County, 65 Mo. 425; Collins v. Barding, 65 Mo. 496; State v. Robinson, 79 Mo. 66.

<p>Appeal from the Shelby Circuit Court, Hon. Thomas H. Bacon, Judge.</p> <p>Moulton Hoyt, deceased, the husband of the plaintiff, was one of the original parties to the cause of action in issue and on trial, and the plaintiff being the other party she was not a competent witness to testify on the trial of this cause. Rev. Stat., sec. 4010 ; Meier v. Thieman, 90 Mo. 433 ; Chapman r>. Dougherty, 87 Mo. 617; Ring v. Jamison, 66 Mo. 424 ; Angelí v. Hester, 64. Mo. 142; Bitton v. Shipp, 65 Mo. 297; Banlc ¶. Hunt, 25 Mo. App. 170; 1 Whart. on Evid. (1 Ed.) sec. 466. The executors of Mr. Hoyt being parties defendant, in this action, and the plaintiff being the other party, it was error to permit her to testify in her own favor, except as to such acts as have been done since the probate of the will. Rev. Stat., sec. 4010 ; Weiland v. Wayland, 64 Mo. 168 ; Kellog ». Malin, 62 Mo. 429 ; Poev. Domic, 54 Mo. 119 ; Johnson v. Quarles, 46 Mo. 423 ; Blanton v. Ryan, 41 Mo. 510 ; Wade v. Hardy, 75 Mo. The error in this respect was not cured by the action of the court in sustaining objections to plaintiff testifying to any statements made by her husband. Being excluded from testifying to the statements of her husband, she should also have been excluded from testifying to any acts accompanying such statements, or to which such statements related. Holman v. Bachus, 73 Mo. 49 ; Moore V Wingate, 53 Mo. 398; Waddle v. McWilliams, 21 Mo. App. 298. Nor was the error complained of cured by the action of the court in giving the declaration of law that the plaintiff’s sworn rehearsal of the statements of her husband were not admissible in evidence and not to be considered.</p> <p>It is a matter of no significance that the act of the deceased is the subject-matter of controversy. Hence it is settled law that all parties are competent witnesses in a proceeding to contest the validity of the will. Garvin’s Adm’rs v. Williams, 50 Mo. 212. Also that in a controversy concerning advancements, in a proceeding for distribution, all parties, including the widow, are competent witnesses. Spradling v. Conway, 51 Mo. 54. It need scarcely be observed that the competency of a widow is not more restricted than that of a married woman. On the contrary, while at common law a married woman could not testify at all in a case of her husband, neither for him nor against him, a widow could testify in behalf of or against his estate subject to the restriction concerning confidential communications. Scroggin v. Holland, 16 Mo. 419; Stein v. Weidman’s Adm’r, 20 Mo. 17; Sherwood v. Hill, 25 Mo. 394.</p>

Louis Circuit Court, Hon. George W. Lubke, Judge. The plaintiff has not adduced any evidence entitling him to a lien against tbe interest of Caroline Dixon in said land or improvements, and, moreover, be has not .even attempted to charge her interest with a lien. ■ Coe v. Ritter, 86 Mo. 277. The account filed by plaintiff shows his clearly expressed intention that it shall apply ■only against tbe interest .of Walter Dixon.

Louis Circuit Court, Hon. Shepard Barclay, Judge. Held: we think that question is settled by the decision •of Sauer v. Griffin, 67 Mo. 654.

<p>Setoff — Surety .in Replevin Bond. — A surety in a replevin bond, ' against whom a judgment has been rendered thereon, cannot set off against such judgment an indebtedness due to him from the defendant in replevin.</p>

<p>Action — Suit to Quiet Title. — A suit to quiet title, under section 3563 of the Revised Statutes, cannot be maintained where it appears ■that the only interest claimed by the defendant is one upon which no right of action exists.</p>

Shepard Barclay, Judge. The court erred in admitting incompetent evidence offered on behalf of plaintiff. Rev. Stat. 1879, sec. 6688. Tbe verdict and judgment in this case are overwhelmingly against tbe weight of tbe evidence and present a fit case for tbe interference of tbis court. Hipsley v. Railroad, 88 Mo. 348; Ackley v. BtaeMin, 56 Mo. 558; BpoTin v. Railroad, 87 Mo. 74, dissenting opinion of Judge Sherwood therein.

Louis Circuit Court, Hon. Leroy B. Valliant, Judge. If the garnishee is in donbt he has the means of bringing in all parties having an interest and have it determined. Wimer v. Priteh'artt, 16 Mo. 252. An agent .cannot bring suit in his own name when he has no beneficial interest. White v. Bennett, 1 Mo. 102; 6 Mass. 253; 10 Johns. 387.

<p>Appeal from the Cape Girardeau Circuit Court, Hon. H. C. O’Bryan, Judge.</p> <p>Tbe county of Cape Girardeau is entitled to but two grand juries in eacb year, and it appearing from tbe record that there bad been a grand jury qualified and empaneled at tbe January and May terms of the circuit court of said county, tbe grand jury summoned and returned to tbe August term of said court bad no legal existence and their acts were absolutely void and of no effect. Rev. Stat. 1879, secs. 1154, 1174 • State v. Oreen, 87 Mo. 583 ; State v. JDeBar, 58 Mo. 395. Tbe word year will always be intended to mean a calendar year, except when applied to revenue matters tbepresumption, will be in favor of its referring to, a fiscal year. Glasgow v. Bowse, 43 Mo. 479. The record does not show that the indictment was presented according to law, or that it was presented at all, and it is, therefore, void. Rev. Stat. 1879, sec. 1797. The indictment charges several distinct and independent offences in one count, and is, -therefore, bad. State v. Bach, 25 Mo. App. 554 ; State v. Clevenger, 20 Mo. App. 628.</p> <p>An objection that no order was made by the court to the sheriff directing him to summon a grand jury for any term of court, is a challenge to the array. State v. Bleeldey, 18-Mo. 429; State v. Connell, 49 Mo. 282; State v. Dagmond, 55 Mo. 87. And a challenge to the array is only permitted, for the causes mentioned in the statute. Rev. Stat. 1879, secs. 3.772, 1773; Slate v. Welcli, 33 Mo. 33. The record shows that the grand jury that presented this indictment was summoned by the sheriff and properly empaneled, sworn, and charged by the court before entering upon a discharge of its duties, and -defendant’s rights were not prejudiced thereby. Slate v. Knight, 61 Mo. 373-; State v. Hart, 66 Mo. 208. The indictment follows the language of the statute upon which it is bottomed, and that is sufficient. Laws 1883, p. 88, sec. 5; State v. Watson, 65 Mo. 115 ; State v. Fmerich, 87 Mo. 110; State v. Madden, 81 Mo. 421; State v. Brigard, 76 Mo. 322; Where a statute forbids several things, or creates several offences in the alternative which are not repugnant in their nature or penalty, it is treated in pleadings as but one offence, and they may be all united conjunctively in one “count, and the .count is sustained by proof of one of the offences -charged. Slate v. Murphy, 47 Mo. 276; State v. Fitzsimmons, 30 Mo. 237; State v. Flint, 62 Mo. 394; State v. Fancher, 71 Mo. 461; 1 Bish. Grim. Proc., secs. 191, 193 ; State v. Nations, 75 Mo. 53 ; State v. Klein, 78 Mo. 627 ; State v. McAdoo, 80 Mo. 216 ; State v. Brigard, 76 Mo. 322 ; State v. Pittman, 76 Mo. 56. Keeping open a dramshop and selling and giving away liquor on Sunday are so closely connected that they constitute but one transaction, hence but one offence.. State v. Murphy, 47 Mo. 267.</p>

Louis Circuit Court, Hon. George W. Lubke, Judge. The alleged judgment upon which this suit is brought is not a legal or valid judgment. It is only a skeleton memorandum, and not such a record of a judgment as the law will recognize, or upon which a suit can be based.

<p>Error to the Scott Circuit Court, Hon. J. D. Foster, Judge.</p>

<p>Error to the Scott Circuit Court, Hon. J. D. Foster, Judge.</p>

<p>1. Jurisdiction, Appellate — This court has no appellate jurisdiction of any cause in which a political subdivision of the state is a ' party.</p> <p>2. ' Appeals, Joint or Several — Transfer to Supreme Court. Where there are two defendants, one of whom is a political subdivision of the state, and the other a private person or corporation, and both appeal, the entire cause is constitutionally excluded from the appellate jurisdiction of this court. If only one appeals, the appeal will lie to the proper court, according to the status of the appellant, without regard to the status of the party not appealing. If each severally appeals at a different time, so that one appeal is taken to this court, and one to the Supreme Court, the appealing orders may be afterwards properly modified and consolidated by the trial court; otherwise, this court, upon becoming possessed of the cause, should transfer it to the Supreme Court.</p>

Theodore Brace, Judge. Plaintiffs in their petition base their action on the insufficient ■capacity of the stone culvert. ■ They recover upon proof showing that the channel of the stream leading to… Held: 47 Wis. 340 ; State v. Walters, 69 Mo. 463 ; James v. City, 83 Mo. 570.

John P. Strother, Judge. Statement of case by the court. T. B. Anderson was the contractor for macadamizing a street in the city of Sedalia. Tax bills were issued in his favor for the work done and material furnished. He assigned these bills to plaintiff who brought suit on them, asking that the lien of the bills, be enforced against defendant’s abutting property.

John P. Strother, Judge. Statement ef case by the court. The following statement is sufficiently full and correct to cover the points presented for consideration : In December, 1881, a number of suits were brought in the Pettis circuit court to recover on special tax bills, issued on account of the macadamizing of Ohio street, in the city of Sedalia, against the property abutting on said street.

B. J. Casteel, Special Judge. Statement of case by the court. Held: even if the sheriff may make such application, that it is the duty of the sheriff to make such application ?

James H. Slover, Judge. The case is stated in tke opinion. I. Tke large stone culvert crossing Bluff street at tke foot of Lincoln street, was a public sewer within tke meaning of article nine, section two, of the amended charter of Kansas City. Tke City of Kansas has no power to construct a culvert, so-called, except by virtue of its power to construct public sewers. Charter Kansas City, art. 9.

Richard Field, Judge. I. The record shows that Fink & Nasse were creditors of George H. Phelps ; that Phelps, with intent to defraud his creditors, sold his stock of goods worth from eight hundred to nine hundred dollar's to H. H. Hendricks, April 28, 1886, for six hundred dollars, taking as part payment a dwelling-house of Hendricks’ valued at four hundred dollars.

G. D. Burgess, Judge. Statement of case by tbe court. This suit was begun before a justice of the peace where plaintiffs had judgment. Held: after due notice thereof, selected and appointed the said Jesse T. Swain, Thos. J. Martin, and Thos.

Richard Field, Judge. Statement of case by the court. This is an action by plaintiff to recover the value of his services in effecting an exchange of certain property of defendants in the city of Sedalia. The plaintiff alleged that defendants employed him to make the-exchanges, and also alleged that he had found a purchaser and brought the parties together, and that the trade was concluded to the satisfaction of defendants, and that his services were of the value of $190.50.

G. D. Burgess, Judge. Statement of case by the court. This is an action of unlawful detainer, or disseisin, instituted in a justice’s court, and tried on appeal in the circuit court. On the trial the plaintiffs, who are husband and wife, read in evidence a deed from one Warner conveying the premises in question to the plaintiff Nancy Gooch, dated January 26, 1882.

Charles W. Sloan, Judge. The case is stated in the opinion. I. Where one person renders services for another, that are of benefit to and accepted by the other, the law imposes upon the latter an obligation to render to the former a reasonable compensation for the value of the services. Bish. on Cont. [Enlarged Ed.] secs. 217, 219, 288, and cases cited. II. The law creates and implies contracts against corporations, the same as other persons. Bish.

M. G. McGregor, Judge. Statement of case by the court. Section 3296, Revised Statutes, 1879 : “Any personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture by gift,’ bequest, or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor, or have grown out of any violation of her personal rights, shall, together with all income, increase, and profits…

Rudolph Hirzel, Judge. Statement of case by the court. This action was begun before a justice of the peace under section 2129, Bevised Statutes, and is based on the following complaint, to-wit: “Plaintiff states that on or about thé third day of .April, 1887, at the county aforesaid, one William Hobein did then and there wilfully set fire the woods on his •own land, which said fire spread over the woods of the neighborhood on to the land of the plaintiff, Fritz Kahle,…

Oliver M. Spencer, Judge. The case is stated in the opinioxx. I. The only pleading on the part of the defendants is by demurrer or answer. Rev. Stat., sec. 3513. The defendants were not in default, and were not required • to plead further until their motion was delivered by the •court. Rev. Stat., sec. 3518. II. Amendxnents to pleadings can only be made by • permission of the court, and on such terms as the court may prescribe. Rev. Stat., sec. 3518.

Richard Field, Judge. Statement of case by the court. The respondents began suit by attachment against Christian W. Grau, in which certain goods, wares, and merchandise and other property, were attached as the property of said Grau. The plaintiff, claiming to be the assignee of said Grau under a deed of assignment, interpleaded, claiming the property so seized as such assignee.

James M. Davis, Judge. The case is stated in the opinion. I. This was a civil suit on section 806, Revised Statutes, and so held in this case. State ex rel. «. Railroad, 89 Mo. 571. See plaintiff’s petition, brief, and statement in said case. II. The theory below is the theory that it must be tried on in this court, always so held and so file no authorities. III. It is not a criminal information as known to the common law for the trial of misdemeanors.

James M. Sandusky, Judge. Statement of case by the court. The defendant was indicted for selling intoxicating liquors as a druggist.

<p>Practice — Right op Remedies in Case op Appeal — Case Adjudged. Where a judgment of the circuit court was appealed from by defendant, and a supersedeas bond given by him, and after-wards he sued out a writ of error from the clerk’s office of this court, in vacation, and when the appeal has never been disposed of, and is yet pending (as in this case), the writ of error will be dismissed. A party is not entitled to pursue both remedies, of appeal and writ of error, simultaneously; he was not entitled to his writ of error, at least until the appeal was dismissed.</p>

John G. Wear, Judge. In this case it was agreed between the attorneys for appellants and respondent that the bill of exceptions, though filed out of time, should be the bill of exceptions in this case.

<p>Appeal from the Webster Circuit Court, Hon. W. I. Wallace, Judge.</p> <p>The first instruction given for the plaintiff is-erroneous. The statement alleges that the “horse was - scared and ran into a trestle and fell through and upon the timbers thereof.” It makes no allegation that the-horse ran against any other object along the line of the road, but the instruction tells- the jury that if the horse ran into the trestle, or any object along the line of the defendant’s road, and was killed or injured, to-find for plaintiff. There is no evidence that any train... passed along the road to scare the horse. In the-"absence of any evidence that a train passed over the road at all on the night that the horse got into the trestle, there is nothing upon which to base -a presumption that defendant’s trains scared him into it -as charged in the complaint. Railroad ®. Harris, 28 Kan. 206; Bremer v. Railroad, 61 Wis. 114.</p> <p>The only ■point in the evidence to which appellant seems to call the attention of the court is the negative declaration of ■witness Rippey, who while testifying that a train ran west on the road regularly at ten o’clock p. m. every -day — further says: “ But I don’t know of a train passing at night.” Surely if appellant desired to test that -question — the knowledge of whether a train did or -did not pass at the usual hour (ten p. m.) was in their possession — and if it had not so passed, defendant would surely have produced a conductor, engineer, or brakeman to have so testified. But appellant also complains of .the first instruction given for plaintiff — in this, that it contains the words, “or other objects along the line of defendant’s road.” The answer to the objection -of the appellant is that the instruction is almost a literal copy of the statute, but even if this were not the -case, there is, and can be no controversy as to how the .horse met with the injury that resulted in his death.</p>

<p>:1. Deposition, Omission oe Part. — When a party offers to read a deposition in evidence, the court commits no error in refusing his application for permission to omit a part thereof.</p> <p>IS. Witness —Credibility—Evidence.—While a party may not impeach the credibility of his own witness, no rule prevents his proving by another witness that the first witness was in error as .to a particular fact.</p>

<p>Appeal from the Mississippi Circuit Court, Hon. H. C. O’Bryan, Judge.</p> <p>When suit is-brought for double damages against a railroad for killing stock, it must be in the same or an adjoining township. Rev. Stat., sec. 2839. This is a jurisdictional fact which must affirmatively appear by the record. Palmer v. Railroad, 21 Mo. App. 437; Wright v. Railroad, 25 Mo. App. 236 ; Mitchell v. Railroad, 82 Mo. 106 ; Rackenstoe v. Railroad, 86 Mo. 492. Defendant offered to prove by Dan Maxfield, one of plaintiff’s, witnesses, that on the trial of the same cause, before the justice of the peace, the plaintiff admitted and swore that his cow, when killed, was not giving milk, and that she was twelve years of age. This was an admission against his interest and competent. 1 Greenl. Evid. [Redf. 12 Ed.] sec. 171; Rchlicker v. Gordon, 19 Mo. App. 479 ; Sjparr v. Wellman, 11 Mo. 230.</p> <p>The court took judicial notice of the fact that Ohio, township joins Tywappity. Courts will take judicial notice of boundaries of counties and of the subdivisions of counties into townships, etc., and generally, whatever ought to be generally known within the limits of their jurisdiction. lGrreenl. on Evid. [12 Ed.] 6, 10 ; 1 Starkie on Evid. [3 Am. Ed.] sec. 403 ; Woods v. Henry, 55 Mo. 563 ; State v. Worrell, 25 Mo. 205. The fact offered to be proved by appellant was properly excluded, for the reason that it was not a fact necessary to be proved; not a fact in issue, and before it could be admitted as a declaration against interest, it must be made by a party to the suit and in relation to some fact in issue. 2 Starkie on Evid. 28, et seq.; 1 Greenl. on Evid. [12 Ed.] 200.</p>

M. G. McGregor, Judge. It appears by the evidence that the liquor was not sold by the defendant, but by John Daily. The statute provides against selling or suffering a sale. In this declaration there is no allegation that the defendant suffered a sale to be made.

<p>Action — False Statements Causing Injury. — A petition in whieli it is alleged that the defendant has made false statements concerning the plaintiff, in consequence whereof the plaintiff was discharged from ,his profitable employment and prevented from obtaining other employment in the line of his calling, and that the defendant was actuated by malice in so doing, and in which facts are alleged in the same connection from which the law implies malice, states a good cause of action.</p>

<p>, Vendor and Vendee — Allowance Against Vendee’s Estate. — One-■who has contracted with a testator, in his lifetime, for the sale and conveyance of land to him. cannot, while the contract remains executory, have an allowance in the probate court against the-estate of the vendee for the amount of the purchase money.</p>

<p>1. Insurance — Suspended Policy. — Where a fire insurance-policy is for a term of five years, a premium note being given for the entire term, payable in annual instalments, with a stipulation that upon failure by the insured to pay auy instalment when due, the company shall not be liable for loss during such default, the insured cannot recover for a loss which occurred after an instalment had become due, and while it remained unpaid.</p> <p>2. --Waiver op Suspension — Evidence.—When it is stipulated that no condition or restriction contained in the policy shall he waived, except in the manner set out in the contract, suche stipulation will be rigidly enforced, and evidence tending to prove alleged waivers by means other than those so stipulated for, is properly excluded. Nor is evidence admissible for the purpose of showing a customary laxity in the company’s collections of premium instalments, or that the same were habitually collected in small sums and at long intervals after due.</p> <p>8.--Contracts Voluntary and Binding. — Insurance • contracts are voluntary as to both parties, and may make' of binding force any stipulation for a conditional suspension of liability for loss, or any lawful condition which both parties are willing to be bound'by when they make the contract.</p>

<p>Municipal Corporation — Ordinance or Resolution. — In the absence of an affirmative showing that a resolution is passed with the same formalities and notified to the public in the same manner as an ordinance, an act which a municipal charter requires to be done by ordinance cannot be done by resolution; nor can a general ordinance authorize it to be so done.</p>

<p>Appeal from the St. Louis Circuit Court, Hon. Shepard Barclay, Judge.</p> <p>The vendor of personal property in a suit against the vendee for not taking and paying for the property has the choice ordinarily of one of three remedies: (1) He may store •or retain the property for the vendee and sue him for the entire price; (2) he may sell the property, acting as the agent, for this purpose, of the vendee, and recover the difference between the contract price and the price of re-sale ; (8) he may keep the property as his own and recover the difference between the market price at the time and place of delivery and the contract price. Cor-bin’s Benj. on Sales, secs. 1164-65; Bustan v. McAn■drew, 44 N. Y. 72 ; Hayden n. Bemetz, 53 N. Y. 420 ; Mason v. BecTcer, 72 N. Y. 595; Bement r. Smith, 15 Wend. 493; Ballentine r. Robinson, 10 Wright [Pa.] 178; Shawhan ». VanNest, 25 O. St. 490 ; Coolc r. Brandéis, 3 Met. [Ky.] 557; Bell v. Offurt, 10 Bush, 632; Bagley v. Findlay, 82 111. 524; Bill Publishing Co. n. Smythe, 27 Fed. Rep. 914. The vendee has no right to the possession except upon payment of the contract price, and the vendor may recover the contract price after tender of the goods. The action is for damages for the contract price. Hayden v. Demeiz, 53 N. Y. 430 ; Mason v. Decker, 72 N. Y. 598; Goddard v. Binney, 450 Mass.; Bhaiohan v. VanNest, 25 Ohio St. 490. Where parties decline to receive or pay for goods ordered, a refusal to receive a part is equivalent to a refusal to receive all, and excuses a tender of all. Bbumpff v. Mueller, 17 Mo. App. 290; Williams v. Evans, 39 Mo. 204; Bigerson v. Kahmann, 39 Mo. 207.</p> <p>Defendant had a right to limit his liability under the contract by notifying plaintiff that he did not wish to have the work. Collins v. Delatarte, 115 Mass. 159 ; Danforth v. Walker, 37 Yt. 239; Allen v. Jarvis, 20 Conn. 38; Bishop on Contracts, secs. 837-41. Plaintiff’s action is not for the price of goods delivered or completed and held for plaintiff, but it sounds in damages for defendant’s breach of the entire contract; it seeks to recover what plaintiff has lost by defendant’s refusal to take the work. Bliss on Code Plead., sec. 17; Booge v. Railroad, 33 Mo. 212; Bandee v. Railroad, 79 Mo. 278. And this is plaintiff’s remedy in this case. Rickey v. Tenbroeek, 63 Mo. 567. Having failed to show actual damage, plaintiff is entitled to nominal damage only. Hayes v. Delzell, 21 Mo. App. 684.</p>

<p>Appeal from the St. Louis Circuit Court, Hon. Leroy B. Valliant, Judge.</p> <p>This court' has already recognized as the law governing the liability of those operating sleeping cars that they are responsible only for a failure to exercise reasonable and ordinary care for the protection of the property of its passengers from theft, and that the burden of proving such want of care is upon the passenger in such cases. Scaling v. Car Co., 24 Mo. App. 29 ; Bevis v. Railroad,. 26 Mo. App. 19; Welch v. Car Co., 1 Sheldon [N. Y.] 459 ; Palmeter v. Car Co., 11 Alb. L. J. 149 ; Blum v. Car Co., 1 Plipp. [U. S. C. C.] 500 ; Car Co. v. Gardner, 16 Am. and Eng. R. R. Cases, 324; Tracy v. Car Co., 67 How. Pr. [N. Y.] 154; Car Co. v. Diehl, 84 Ind. 474; Steam v. Car Co., 21 Am. and Eng. R. R. Cases, 443; Dargen v. Car Co., 5 Tex. Law Review, 619 ; Tracy v. Car Co., 67 How. Pr. 154; Carpenter v. Railroad, 3 Ry. and Corp. Law Jour. 32; Schmidt v. Harlcness, 3-Mo. App. 585; Ward n. Andrews, 3 Mo. App. 275; Schultz n. Railroad, 36 Mo. 13; Ma,her n. Railroad, 84 Mo. ; Holman n. Railroad, 62 Mo. 562; Harney n. Railroad, 6 Mo. App. 267.</p> <p>It is manifest that the cause was considered on the former appeal .with more than usual care by this court, because there were two opinions, although the court were unanimous in the conclusion reached, to-wit, that the facts in the case were sufficient to have gone to a jury on the question whether a sufficient watch was kept over the plaintiff’s berth at the time he was robbed. No decision is cited by appellant now that was not then cited and considered by the court, having any material bearing on- the controversy. Whether the trial judge, were he trying a question of fact, would 'draw the same conclusion that the jury did from the facts in" ■evidence is no test by which either the trial court or the appellate court can set aside that verdict.</p>

<p>Appeal from the St. Louis Circuit Court, Hon. Daniel Dillon, Judge.</p> <p>The right of stoppage in transitu of the goods in controversy on the part of the vendors existed, and the court should have so ruled. Estey v. Trucoel,' 25 Mo. App. 238; ScJiwabacher v. Kane, 13 Mo. App. 126; Lac7ten r>. Rhoades, 51 N. Y. 641; Lentz «. Flint, 53 Mich. 444; Grewoe v. Dunnam, 60 Iowa, 108; Rosentiial n. Dessau, 11 Hun, 49; Hutchinson on Carriers, secs. 409-10; 3 Wood’s Railway Law, p. 1583, secs. 433-4; Benj. on Sales, secs. 839-44. The right to rescind and recover the goods under the facts ought to have been held to be in the plaintiff. Bedcmlt n. Wales, 19 Mo. 36; Thomas v. JTreligh, 9 Mo. App, 157; 1 Benj. on Sales [Corbin’s Am. Ed.] sec. 656 and note. Judgment in this case is unauthorized by the laws of the state of Missouri. The ■defendant, in his answer, simply put in a general denial. The plaintiffs had obtained possession of the goods ; the ■defendant must, in his answer, claim them and demand return of them, otherwise the court cannot, upon a finding in his favor, give judgment against the- plaintiffs for their value, as was done in this case. Rev. Shat., sec. 3854; Young v. Glascock, 79 Mo. 574.</p> <p>The right of stoppage in transitu had no application in this case. There had been a complete delivery, and that effectually ended all question of stoppage in transitu. Benj. on Sales, sec. 1246. The objection raised by appellants, that the judgment in this case is unauthorized, because the answer does not claim the property and demand a return thereof, comes too late. The case was tried as though the answer embodied such claim, there was no such objection raised at the trial or on motion for new trial, and hence the decision in Young ¶. Glasscock, 39 Mo. 574, cited by appellants’ counsel, is not conclusive of this case. Mueller v. Kaessmann, 84 Mo. 331.</p>

J. F. Hale, Judge. The suit was brought before a justice of the peace of Dry Creek township. The petition alleges, and the proof shows that the killing occurred in Hutton Valley township, but there is not one word of proof that Hutton Valley township adjoins Dry Creek township. Mitchell v. Railroad, 82 Mo. 106 ; Palmer v. Railroad, 21 Mo. App. 437; Bilis v. Railrood, 83 Mo. 372; Wright v. Railroad, 25 Mo. App. 236.

E. M. Hughes, Judge. Refusing the opening and the closing of the case to the defendant, under the instructions, gave the plaintiff an undue advantage ; more so, even, than is accorded to a defendant in a criminal case. The court committed an error in giving the instructions asked for on the part of plaintiff, requiring the defendant to prove said charge by same amount of evidence as is required to convict in criminal cases and beyond a reasonable doubt.

John G. Wear, Judge. In this case-since the plaintiffs already had the cotton, when the officer should execute this judgment he would be compelled to collect from the defendant the value of the-cotton, as it was impossible to take the cotton from the defendant and deliver it to plaintiffs.

<p>Appeal from the St. Louis Court of Criminal Correction, Hon. E. A. Noonan, Judge.</p> <p>“If an officer in making an -arrest for a misdemeanor is resisted, he may apply- force to accomplish the arrest.” State v. McNally, 87 Mo. 614. The error-of giving an erroneous instruction is not cured by giving a correct one on the same point. This has been decided in various cases in this state. Singer v. Hudson, 4 Mo. App. 145; 21 Mo. App. 565; Newell v. Bolt and Iron Co., 5 Mo. App. 258, 259. “It is erroneous to give inconsistent instructions.” Henschenv. O’Bannon, 56 Mo. 292; Price v. Railroad, 77 Mo. 508; Stevenson v. Hancock, 72 Mo. 614. “ A contradictionjbetween two instructions, so far from correcting the evils in either, multiplies them in both.” State v. Nauert, 2 Mo. App. 295 ; Bank v. Westlake, 21 Mo. App. 573 ; Goetz v. Railroad, 50 Mo. 474 ; State v. McNally, 87 Mo. 644 ; 3 Mo. App. 142. “ Where the law was properly declared for the defendant by an instruction, but its liability unduly extended in another given for the ¡plaintiff, the error was not cured because of the proper instruction. The inconsistency between the two instructions was itself an error.” Welch v. Railroad, 20_Mo. App. 477 ; Seymour v. Seymour, 67 Mo. 303.</p> <p>Appellant complains in his brief that the court committed error in giving to the jury the seventh and last instruction for the statve. There is nothing in this instruction to warrant the statement in appellant’s brief that an officer in making an arrest can only use such force as is necessary to defend himself. It clearly states that an officer in making an arrest is allowed to use such force as is necessary to make it. We wish to ask the court to look carefully at the instructions given for the defendant. They very clearly set forth the rights and privileges of an officer in making an arrest, and give him full power to use such force as is necessary to make and complete the arrest. Every instruction he. asked was given, and there was nothing in the instruction complained of which was inconsistent with the instructions given for the defendant. State v. McNally, 87 Mo. 644; Kelly, secs. 73, 491; 1 Whart. Crim. Law, secs. 1253,1260 ; 1 Bishop Crim. Proc., secs. 159, 160, 163; 2 Bishop Crim. Law, sec. 412. If this instruction was erroneous, its vice was certainly corrected by the instructions given for the defendant. Carl v. Railroad, 55 Mo. 476 ; Whalen v. Railroad, 60 Mo. 323.</p>

Louis Circuit Court, Hon. Daniel Dillon, Judge. Where one, at the request of another, performs beneficial services for him, unless it is agreed or is to be inferred from the circumstances that they were to be rendered without compensation, the law will imply a promise on the part of him for whom such services were rendered, to pay for them what they are reasonably worth. Dougherty v. Whitehead, 31 Mo. 255.

Louis Circuit Court, Hon. George W. Lubke, Judge. Although the printed clauses of the application and certificate required a delivery of the certificate to the-insured in person during his life, this condition was-waived by the written clauses that the plaintiff was the-beneficiary, and by the fact that the defendant delivered, the policy to the plaintiff. 2 Wood on Fire Ins. [ 2 Ed.] 170 ; May on Ins., sec. 239 ; Archer v. Ins. Co., 43 Mo. 434; Steinbach v. Ins.

Louis Circuit Court, Hon. Daniel Dillon, Judge. There was nothing said or done by the agents of the defendant to induce plaintiff to believe that a forfeiture would not be insisted on. There was no waiver in this case at any time. Bergmann v. Ins. Co., 2 Mo. App. 262.

Original application under the habeas corpus act. There is nothing in the charter or ordinance of the city of Springfield which confers the power upon the mayor and council to order an election to determine whether or not intoxicating liquors are to be sold. Municipal corporations have only such powers as are expressly granted by their fundamental law and in addition such powers as result by necessary implication from the granted powers.

H. C. O’Bryan, Judge. The Thumb was a natural water-course and appellant had the right to have it continue to flow ubi currere solebat. Wood on. Nuisances, sec. 336; Gardner v. Tillage, 2 Johns. Ch. 162; Shields v. Arndt, 3 Green’s Ch. (N. J.)234; Angelí, on Water-Courses, 1, 5, and note; Jones v. Railroad, 18 Mo. App. 251; Benson v. Railroad, 78 Mo. 504; Mosher v. Railroad, 60 Mo. 329 ; Hunkers v. Railroad,. 60 Mo.’ 334; Mangold r>. Railroad, 24 Mo. App. 59.

<p>Appeal from the Lawrence Circuit Court, Hon. M. G. McGregor, Judge.</p> <p>The notice served on defendant of the fifth of March, 1884, though stating the wrong day of the month on which the Lawrence county probate court commenced, was a substantial compliance with the law. At least, that of the twenty-ninth of July, 1885, was, and the notice being by the provisions of section 198, Revised Statutes, the demand was legally exhibited from that date. Rev. Stat., secs. 184, 185. And said proceedings thenceforward constituted a legally exhibited demand against said estate — a Ms pendens, for the final disposition of which the defendant was as much responsible as the plaintiff, by trial or otherwise; and the demand of [plaintiff being legally exhibited to the court for allowance, within two years from the grant of first letters, the statute is fully satisfied. Rev. Stat., sec. 3239; Cooper v. Duncan, 20 Mo. App. 355; Spaulding v. Sues, 4 Mo. App. 541; Bank v. Sauan, 79 Mo. 527; Wernse v. Mc'Bilce, 86 Mo. 565.</p> <p>The declaration asked by plaintiff and refused by the court is not correct, for the reason that it does not embrace the-necessary additional premise, that “He shall have presented his demand to the court, in the manner provided by law for allowance, within two years after the granting of the first letters on the estate.” Rev. Stat., sec. 189. It appears that he certainly did not present the demand to the court for allowance until the February term, 1887, which was ten months more than two years after the date of defendant’s letters. The mere service of a notice on defendant, and also even the filing such notice in the probate court, did not effect a Ms pendens as argued by-plaintiff in analogy to the service of a summons. Peirce v. Slinde, 11 Mo. App. 364.</p>

M. G. McGregor, Judge. There is no evidence upon which defendant could be convicted. No one testified that he carried the pistol on and about his person, concealed or otherwise, or that it was such a pistol as is described in the indictment. If he did, the evidence of the prosecution shows that he had a lawful excuse or reason to carry the same in the necessary defence of his person.

Louis Circuit Court, Hon. Daniel Dillon, Judge. There was no evidence to sustain the judgment, .and the same was against the evidence and the law. The probate court had full and final jurisdiction in the premises, and the circuit court cannot overrule and set aside judgments in the manner it did in this case. Camden v. Flam, 91 Mo. 118; Rowden v. Brown, 91 Mo. 429.

Ben. E. Turner, Judge. Our school law was first made for white children alone, and in construing it that fact must be kept before the mind —that the powers indicated have been fully granted to the districts and directors, we cite Revised Statutes, sections 7031, 7032, 7033, 7044, 7045, 7046; Acts 1881, pp. 199, 200, 201, 209; Acts 1883, p. 185; Acts, 1885, pp. 239, 240. Colored schools were established but no provision as to building schoolhouses for them was made.

John L. Thomas, Judge. The recognizance is invalid and cannot be made the foundation of a judgment, for the reason that it is conditioned for Leffler’s appearance to answer for “riotously disturbing the peace,” which is no offence for which he could have been proceeded against by indictment or information. Commonwealth n. West, 1 Dana, 165 ; West v. Commonwealth, 3 J. J. Marsh. 641; Cotton v. State, 7 Texas, 547; Tousey v. State, 8 Texas, 173.

<p>Appeal from the St. Louis Circuit Court, Hon. George W. Lubke, Judge.</p>

W. D. Hubbard, Judge. The court .-•erred in permitting the plaintiff and his witness to testify to matters utterly irrelevant, immaterial, and collateral to any issue op trial and before the jury. Ritter v. Rank, 87 Mo. 574; 1 Greenl. Evid. [12 Ed.]p. 63, sec. .52; State v. Rrassfield, 81 Mo. 157; State to use n. Rank, 10 Mo. App. 482; Siumpf v. Mueller, 17 Mo. App. 283.

John L. Thomas, Judge. When it appears from the evidence that the damages sought to be recovered, by reason of successive acts of trespass by hogs escaping into plaintiffs’ cornfield through the railroad fence, were occasioned in part and intermingled with those arising from plaintiffs’ own negligence, in failing to keep their fencing in good repair, plaintiffs' can recover, if at all, only nominal damages.

Thomas A. Bruce, Judge. The measure of damages is a matter of law to be decided by the court, and whenever it shall appear that the jury have disregarded the instructions in this respect the verdict will not be permitted to stand. Sedg. on Meas, of Dam. [6 Ed.] 768. The measure of damages in the case was the loss to the rental value of the property for the time, and the court erred in refusing to permit defendant to show that value. Rinney v. Berry, 61 Mo. 360.

W D. Hubbard, Judge. The power to-establish the grade of a street and to raise or lower it after it has once been established is vested in the city council and can only be done by a duly enacted ordinance. Rev. Stat., secs. 485,487. If the grade be raised . or lowered by city officers, agents or servants or any one else without the authority of an ordinance it is not the act of the city and the city is not liable for damages caused, thereby. Dill. Mun.

Louis Circuit Court, Hon. James A. Seddon, Judge. The principle is well established that if an individual makes a contract with an association having a corporate name, in a suit by the association against him, he will not be allowed to deny that they are incorporated. This is true of religious and benevolent associations, as well as business corporations. Qhurch v. Pickett, 19 N. Y. 485 ; Society v. Perry, 6 N. H. 164; Medical Institute v. Harding, 11 Cush. 285.