Volume 31 — Missouri Appeal Reports

James D. Pox, Judge. The verdict is so utterly at variance with common sense, so opposed to the weight of evidence, so against the manifest truth of the matter, so opposed to the law, even as declared by the trial court, that it must have been the result of caprice, prejudice, passion, or some other cause other than a conviction that appellants acted in bad faith in purchasing the property, and it should not be permitted to stand.

.John L. Thomas, Judge. Sales in inmtum are sometimes enjoined on ■the ground of casting a cloud on title, but that reason not set up in this case, nor is it given in the finding of the court.

Hon. Thomas H. Bacon, Judge. Appellant’ s objection to the introduction of any testimony on the complaint should have been sustained. Held: that part of the ordinance forbidding intervening poles was unreasonable and void, appellant could still, irrespective of the provisions of the ordinance, have availed itself of the provisions of section-888, Revised Statutes, which it invokes. It cannot, therefore, complain.

E. M. Hughes, Judge. The papers and judgment, in the case of Boone A. Griffith vs. Gordon A. Thorp, was competent, for the purpose of establishing the amount due from Thorp to plaintiff as rent for plaintiff’s farm for 1886, •and that the same had not been paid. The testimony-introduced by defendant tending to show that he had permitted Thorp, his tenant, to sell the crops grown upon his farm for several years previous to 1886, should have been excluded.

John L. Thomas, Judge. The justice of the' peace did not obtain jurisdiction of the cause, as it does not appear from the complaint, or from any other part of the record, that the land lies in Iron county, or even in the state of Missouri. The complaint is fatally defective Rev. Stat., sec. 2422; McQuoid v. Lamb, 19 Mo. App. 153; Hansberger v. Railroad, 43 Mo. 196 Iba v. Railroad, 45 Mo. 470 ; Haggard v. Railroad, 63.

Louis Circuit Court, Ron. Leroy B. Yalliant, Judge. This action is plainly an action at law for damages for the breach of a contract, and not a suit in equity to compel the defendant to execute a trust, or to compel him to account, as trustee, for moneys received by him in a trust relation. Rush v. Haeussler, 26 Mo. App. 265, 276.

<p>Appeal from the New Madrid Circuit Court, Hon. W. H. Miller, Special Judge.</p> <p>The statute relating to appeals from justices of' the peace, in cases of misdemeanor (Rev. Stat., sec. 2058), provides that defendant “ may appeal if he shall immediately, after judgment is rendered, file his affidavit, stating that he is aggrieved by the verdict and judgment in the case, and that he does not make his appeal for vexation or delay, .and shall also enter into a recognizance,” etc. It is the filing of the affidavit, which was done in the case at bar, immediately after the judgment, that transfers the jurisdiction. The bond simply stays the execution of the judgment. Rev. Stat., sec. 2058 ; State v. Anderson, 84 Mo. 524; State v. Harmon, 20 Mo. App. 548 ; State v. Olevenger, 20 Mo. App. 626.</p>

James R. Vaughan, Judge. There are two classes of cases in which the doctrine of waiver of forfeiture incurred by default in the payment of premiums has been considered: (1) Where the contract ■ provides that upon default in the payment the whole of the premium shall be deemed due and earned.

Louis Circuit Court, Hon. James A. Seddon, Judge. The only-question which the court has to consider in this appeal is, whether the testimony adduced by the plaintiff tended to prove any fact which should have been submitted to the jury.

W.D. Hubbard, Judge. The administrator of an estate can take as assets only the property which the deceased owned at the time of his death. Rev, Stat., secs. 69, 70 ; 2 Williams on Executors [Am. Ed. ] 1407; Stockman v. Railroad, 15 Mo.

<p>Appeal from tbe St. Louis Circuit Court, Hon. James A. Seddon, Judge.</p>

<p>1. Evidence, Secondary.—Where it is known, that a paper once existed, and a diligent but unsuccessful search has been made for it in the place where it was most likely to be found, there is no érror in permitting a witness who has had the paper in his possession and is familiar with its contents, to testify as to the- subject-matter thereof.</p> <p>2. Witness-^-Refreshing Memory.—A witness who assisted in making out a writing, and who knows that its statements were true when made, may refresh his memory from such writing, although he has no independent recollection of all the facts therein appearing.</p> <p>3. Practice, Appellate—Inadmissible Evidence. — A judgment will not be reversed because of the admission of evidence inadmissible by law, when such incompetent evidence is confirmed by all the other testimony, and its exclusion could not have had a tendency to produce a different result.</p>

<p>1. Evidence, Irrelevant.—In an action of replevin where the plaintiff claims under a bill of sale from an insolvent debtor firm, evidence offered by the defendants, who were attaching creditors,- to show that they had no knowledge of a chattel mortgage'executed by the debtors to the plaintiff’s beneficiary prior to the bill of sale is irrelevant and properly excluded.</p> <p>2. Evidence—Declarations of Vendors After Sale.—It is not admissible to prove the declarations or admissions of vendors, made after the sale and transfer of possession, to impeach the title of their vendee.</p> <p>3. Evidence—Conspiracy.—Where there is no evidence of conspiracy between the plaintiff or his beneficiary and his vendors against the rights of the defendants as creditors of the vendors, it is not competent for the defendants to introduce evidence showing what disposition was made by the vendors of certain moneys in their possession.</p>

Louis Circuit Court, Hon. James A. Seddon, Judge. The court erred in excluding this duplicate copy of the depositions taken by commissioner Denison.

<p>1. Practice—Insufficient Averments.—There can be no recovery under Revised Statutes, section 2122, of damages for the death of the plaintiff’s minor son, when it is neither averred nor proved that the deceased left no widow or surviving children. The objection is not waived by pleading over, and may be presented by demurrer to the evidence, or by a motion in arrest.</p> <p>•2. Negligence — Defective Machinery. — Where there was no evidence tending to show that the machinery by which the plaintiff ’s son lost his life was of defective construction, or that it was improperly adjusted, or insufficiently oiled, or that the defendant’s officers or agents knew of any latent defects therein, and where it affirmatively appeared that the deceased voluntarily assumed a dangerous and unnecessary position in handling the' machinery, and that if he had exercised the most ordinary care he would have handled it in a different manner and would not have been hurt, it results, as a matter of law, that the plaintiff showed no right of recovery, and that this court should reverse the judgment in her favor, without remanding the cause.'</p>

Riohard Field, Judge. Certified to Supreme Court. The case is stated in the opinion. Held: that “ personal property ” is “subject to execution,” on a judgment “ for the purchase price thereof,” against the purchaser, “ even in the hands of a third person”—“ except in the hands of an innocent purchaser for value without notice.” Parker v. R'ddes, 79 Mo. 88.

Charles W. Sloan, Judge. The case and facts are stated in the opinion of the court. I. The action of the circuit court in setting aside the first judgment rendered without any motion made therefor, and rendering another judgment, was unwarranted by law; and the pretended judgment is void. Smith v. Best, 42 Mo. 185 ; Lawther v. Agee, 34 Mo. 372; Braclc.ett v. Braclcett, 61 Mo. 221; Henry v. Gibson, 55 Mo. 571.

<p>Attachment—Appeal from Judgment on Plea in Abatement— Practice Prior and Subsequent to 1879.—Prior to the revision of 1879 (in suits in attachment) no appeal would lie from a judgment on a plea in abatement. Since then, under section 439, Revised Statutes, it is permitted to a plaintiff, against whom judgment has gone on the plea in abatement, to take an appeal therefrom without awaiting final judgment on the merits. Bi^t where the judgment goes against the defendant on such plea, he must save his exceptions thereto, file bill of exceptions, and await the judgment on the merits before he can appeal.</p>

M. G. McGregor, Judge. The case is stated in the opinion. The point that the appeal should be dismissed for the failure to set out all the evidence in our brief and abstract of the record is not well taken. We understand the only object of this rule is, that in case respondent files no brief then this court will not have to go to the transcript and look oyer a lot of non-essential matter fco obtain the desired information.

M. Gr. MoGí-regor, Judge. The case is stated in the opinion. I. Section 3729, Be vised Statutes, provides that “a change of venue may be awarded in any civil suit to any court of record,” for any one of the statutory reasons ; and this case, being a civil case, comes under its provisions. 25 Mo. 526. It also applies to a cause instituted before a justice of the peace and appealed to the circuit court and has been so held repeatedly in this state.

M. G. McGregor, Judge.' The case is stated in the opinion I. The plaintiffs rest their case upon the fact that the city had notice of the defect in the sidewalk, and it is-necessary to show that in order to recover. Yocum v.Town, 20 Mo. App. 489. II.

W. I.. Wallace, Judge. ■ Tlie case is stated in tbe opinion. I. It was error to instruct tbe jury to find and return a verdict for defendant. Tbe case was not witbin tbe statute of frauds.

<p>Appeal from the. St. Louis Circuit Court, Hon. George W. Lubke, Judge.</p> <p>Klein & Fisse, for the appellants :</p> <p>The case was tried upon the theory, expressly announced by plaintiff ’ s counsel, that no relief was asked or to be granted except relief at law. In such a case, the court has no authority to render a judgment upon any other contract than the one set out in the petition as the foundation of the action. Leake on Contracts [Ed. 1878] 314, 318 ; 2 Parsons on Contracts [7 Ed.] *495, 497; JRayburn n. jDever, 8 Mo. 104; Leitsendorfer v. Delphy, 15 Mo. 160 ; McGlurg v. Phillips, 49 Mo. 315, 317; Leake on Contracts [Éd. 1878] 318, 321; Parsons on Contracts [7 Ed.] *496. The case does not fall within the rule that where there is an error or mistake on the face of the instrument so obvious as to leave no doubt of the intention of the parties, the mistake will be disregarded without sending the party into equity to have the instrument reformed. That rule is applied only in cases “where the mistake in the expression of a written contract is obvious on the face of the instrument, so as to leave no. doubt of the intention of the parties without the aid of extrinsic evidence to explain it.” Leake on Contracts [Ed. 1878] 327 ; 2 Parsons on Contracts [7 Ed.] *496, and note ; Gaines v. Allen, 58 Mo. 537, 543 ; Wald’s Pollock on Contracts, s. p. 452; Michel v. Tinsley, 69 Mo. 442, 448. The character of the case at bar is disclosed by the petition,from which it plainly appears that extrinsic evidence was necessary to discover that a mistake existed in the contract sued on. In such a case, we submit that the contract must stand as it is written until reformed in equity. 2 Parsons on Contracts [7 Ed.] *496, 497. While it is true that the distinction between legal and equitable forms of action has been abolished by the code, yet the distinction and salient characteristics of the two systems, law and equity, still remain as well pronounced as before; and in all cases where equitable relief is necessary, a court trying a case at law cannot afford such relief. Holden v. Vaughan, 64 Mo. 588; Pomeroy’s Rem. and Rem. Rights [2 Ed.] sec. 69; Bliss on Code Plead. [2 Ed.] sec. 116 and note, and sec. 170 and note. When the plaintiff announced that the case was to be tried strictly as an action at law, and not in equity, the evidence offered by the plaintiff should' have been excluded, under the fundamental principle that parol testimony is inadmissible to contradict, add to, subtract from, or vary the terms of a written instrument. Bunce v. Beck, 43 Mo. 266, 279; Murdock v. Ganahl, 47 Mo. 135, 136 ; Burress v. Blair, 61 Mo. 133, 140 ; Koehring v. Muemminghoff, 61 Mo. 403, 407; County v. Wood, 84 Mo. 489, 515; Fruin v. Railroad, 89 Mo. 397, 404</p> <p>The language employed in the agreement was meant and intended to express the considerations and obligations of the contract, and also to describe the subject-matter of the contract. It is necessary in all such cases where a dispute arises as to the subject of such contract, where the descriptive language is not adequate and sufficient, or is in any sense indefinite and uncertain, to ascertain by and from their concomitant facts and circumstances, what was the subject-matter, of the contract. In order to do so the court will, as a rule (and there is scarcely an exception to the rule), if possible, place itself at the same standpoint of the parties to the contract at the time and place when and where it was made, and will then construe the contract with reference to the objects and purposes of the parties thereto ; and if, in looking at the contract which the parties did in point of fact make and sign, the court shall find that they have omitted some necessary words of description, and added some false words of description, it will uniformly supply the omitted words, and reject the surplus words, so as to get at and accomplish the actual ends and purposes of the contracting parties. Edwa/rds v. Smith, 63 Mo. 119 ; Fontaine v. Savings Inst., 57 Mo. 552; Holocher v. Holocher, 62 Mo. 267; Miller v. McCoy, 50 Mo. 214; McConnell v. Brayner, 63 Mo. 461; King v. Fink, 52 Mo. 209 ; Amonett v. Montague, 63 Mo. 201; Filibert v. Berch, 4 Mo. App. 470; Langlois v. Crawford, 59 Mo. 456 ; Schreiber v. Osten, 50 Mo. 513 ; Ault v. Lee, 61 Mo. 160; Elliott v. Secor, 60 Mo. 163 ; McPike v. Allman, 53 Mo. 551.</p>

John G. Wear, Judge. The allegation in the answer, that Gfeo. Bates, co-plaintiff, as agent, on or about the --- day of August, 1884, abrogated said contract, does not present an issue upon that subject, it not appearing that he had any power or authority to do so; nor before a breach by defendant •of .the contract; nor did defendant act promptly upon It. Edwards ®. Weeks, Fourche’s Sel. Cas. 699 ; Melton v. Smith, 65 Mo. 315.

E. M. Hughes, Judge. Walker G. Meriwether had no such natural or successive relationship to M. AE. Meriwether, or her property interest in the estate of Geo. D. Meriwether, as to make him a privy to her. liéis neither her personal representative, heir, devisee, legatee, assignee, voluntary grantee, or judgment creditor, or purchaser from her with notice. He must be one of these to be bound by a judgment against her.

<p>1. Statute op Limitations—Appropriation op Payment.—When a. creditor holds two demands against his debtor, one of which is barred by the statute of limitations, and the other not, and the-debtor makes a payment in part, without indicating to which debt it is to be applied, the creditor may, at his option, apply it to the debt under limitation, so as to prevent the statutory bar.</p> <p>2. Practice—Trustee op Express Trust.—The payee of a promissory note who is named therein as trustee for another, may maintain an action on such note in his own name, without regard to the question whether the beneficiary be living or otherwise.</p>

<p>Appeal from the St. Louis Circuit Court, Hon. James A. Seddon, Judge.</p> <p>The court improperly sustained the demurrer of plaintiff to part of defendant’s answer. It appeared by the plaintiff’s petition that as a condition precedent “the rate of rent for the extended term had to be agreed upon,” and it nowhere appeared in said petition that such agreement was made. If any of the matter pleaded tendered any defence, in whole or in part, to the action, the demurrer was improperly sustained. Justice v. Town, 20 Mo. App. 559; County r>. Sappington, 64 Mo. 72. It was stated in the answer of defendant substantially, that Clemens induced Knox to pay six hundred dollars for improvements, etc., placed by Carroll and Levy, which by the lease were only bound for rent and taxes, upon the theory that there -was a lease and the right of removal of the improvements. The improvements are admitted by defendant, by his demurrer, to be of the value of one thousand dollars ; that after the defendant had paid his money and been in possession he was told by Clemens he had no lease, and these improvements of the defendant were converted by Clemens to his own use. The answer also averred that Clemens and Knox agreed there was no lease, and entered into a negotiation for a new lease. All of these matters were well pleaded and a good defence. Bigelow on Estoppel, 578; Stewart v. Goodrich, 9 Mo. App. 125; Yale v. Hines, 24 Mo. App. 619; Greenway n. James, 34 Mo. 328; Cavender v. Waddingham, 2 Mo. App. 557. The memorandum signed by Clemens without fixing any rate of rent at which the premises were to be re-let for the proposed renewal term is void for uncertainty. Taylor, L. and T. [8 Ed.] p. 386, sec. 333; Pray v. Ciarle, 113 Mass. 283 ; Abeel v. Radeliff, 13 Johns. 299. The mere facts that the defendant occupied the premises and paid the rate of rent in the lease mentioned, after the expiration of the lease, do not, as a matter of law, show that there was such an agreement as provided for by Clemens in his writing. Bradford v. Patten, 108 Mass. 153. Even if there are sufficient averments in the petition to show that there was a renewal, notwithstanding that fact, the averment in the answer that Clemens, through his duly authorized agent, and the defendant Knox, in the early part of the term contemplated by the extension in 1885 and 1886, agreed that there was no lease, etc., was a good defence. Any lease under seal may be surrendered or changed by parol. Prior v. Kiso, 81 Mo. 241; Hutchinson ®. Jones, 79 Mo. 496. The party paying is always at liberty to explain how, why, and in what capacity he pays and the circumstances under which the payments were made, for the purposes of repelling any implication that might be inferable from these payments. Taylor L. and T, [8 Ed.] p. 26, sec. 23. The writing signed by Clemens about the time Carroll sold, June 16, 1880, did not •provide that in addition to the rate of rent for the extended term to be thereafter agreed upon, Carroll should pay taxes, assessments, etc., or comply with any • of the stipulations in former lease. It fixed a minimum for the rate of rent, but no maximum, thus reserving in himself the right to do or not to do. This was no agreement as is required by section 3078, Revised Statutes. King v. Howard, 27 Mo. 21 ; Hug v. Van Bulcels, 58 Mo. 202; City «. Gas Co., 70 Mo. 103. The writing signed by Knox at the time of the assignment only bound him to try and agree as to the rate of rent. Clemens was not bound by his writing, and as no mutual binding existed, neither was bound. Furthermore, Knox signed his writing and paid his money in the belief induced by Clemens of the existence of a lease ■and of the right of removal of the improvement. These were the acting motives on the part of Knox, but according to Clemens’ showing, and in fact, these did not exist; hence, there was -a failure of consideration. Kerr on Mistakes and Fraud, 408 ; Blair v. Railroad, .89 Mo. 383, 392 ; Teates n. Hines, 24 Mo. App. 619. The provision in the lease relied upon by plaintiff ,,is “to pay all' assessments and taxes * * * that may be levied on or claimed * * * during the term of the lease,” not that might be charged, assessed, or become a lien during the term—assessment, etc., and levy or claimed different things. Valle v. Fargo, 1 Mo. App. 344; Waterman v. Ha/rJcness, 2 Mo. App. 494; Btrohmeyer ». Zeppenfeld, 28 Mo. App. 268. The ■special tax bill offered in' evidence was issued on the eighteenth day of December, 1886, and paid by Clemens January 27, 1887. It was not competent evidence in this case. The claimed extension expired thirty-first of December, 1886, when demanded, if ever, before'the payment on the twenty-seventh day of January, 1887, there is no evidence. No suit was brought on it, and in fact, according to the provision of section twenty-five, of article six, of the scheme and charter of the city of St. Louis, it was not collectible until thirty days from demand of its payment date. The assessment and levy of a special tax is an exercise of the taxing power, and some time is given the owner of the land after the assessment is made, before a levy can be made for the-enforcement of the payment of the assessment. In the general taxes an assessment is made more than a year before any penalty is attached for nonpayment. The special tax, only thirty days from demand, and as between landlord and tenant it is when the taxes- may be paid without penalty is the time fixed to determine - who shall be liable for them. This is the proper time, under the language of the original lease, if it was in force.</p> <p>The court-properly sustained plaintiff ’ s demurrer to affirmative matter contained in defendant’s answer. Dougherty v. Matinews, 35 Mo. 520 ; Dunn v. White, 63 Mo. 186 ; Parker' v. Marquis, 64 Mo. 38 ; Wilkerson v. Parnham, 82 Mo. 678; Taylor’s Landl. & Ten. [8 Ed.] sec. 551. The-amount of rental provided for the renewal period was sufficiently defined, and was established by the acts of’ the lessor and the assignee of the lease. Arnot v. Alexander, 44 Mo. 25 ; City v. Gas Go., 70 Mo. Ill; Webster v. Nichols, 104 111. 171, 172 ; Hermann on Estoppel, sec. .1048, p. 1175; Insurance Go. v. Bank, 5 Mo. App. 333 ; s. o., 71 Mo. 58. The special tax bill, being payable ■ December 18,1886, at its date was “levied on, or claimed from, said lot of ground, during the term of this lease.” Rev. Ord. 1887 ; City Charter, sec. 25, p. 368; sec. 26, p. 369. The lessee, both by payment of the former rate of rental and by payment of taxes, as by the lease provided, as well as by his prior acceptance of the assignment of the leasehold, and his entry thereunder, during the period of extension, and subsequent to the original term, precluded himself from denying, against the plaintiff, the existence of such renewal term. Insurance Go. v. Bank, 5 Mo. App. 333 ; s. c., 71 Mo. 58. The special tax bill bore date December 18, being thirteen days prior to the expiration of the renewal term. It then became • a lien due and payable forthwith, though it bore no-interest, or, perhaps, only six per cent., till thirty days-had elapsed from the date of the demand for payment. This grace or indulgence vouchsafed by the city charter did not make the amount other than a demand against the property existing, and even then payable, though not then in default, in absence of demand for payment thereof. The lessor was entitled to pay this bill the date of its issuanpe and sue forthwith for its amount, as the bill was a burden imposed on the property by legal authority ; nay, more, a cause of action accrued to him at once on nonpayment of the bill, even without payment on his own part. Taylor’s Landl. & Ten. [8 Ed.] sec. 399.</p>

Louis Circuit Court, Hon. Shepard Barclay, Judge. The statement charged to have been made by Mr. Endres to Mr. Tuttle differs materially from the report of that statement made to plaintiffs by Bradstreet’s mercantile agency, at New York.

Louis Circuit Court, Hon. Daniel Dillon, Judge. In Duff v. Neilson, 90 Mo. 93, the court say: It sufficiently appears from the dates in the transcript that the motion for new trial was filed within the statutory period, and this is' all that is' required.” The transcript in this case shows that on November 1, 1887, a verdict and judgment was rendered; that on November 3, 1887, the motion for new trial was filed ; that on November 22, 1887, motion for new trial was overruled…

<p>Sale—Defrauding Creditors—Innocent Purchaser.—A sold a stock of goods to B with the intent of hindering, delaying, or defrauding-A’s creditors, and B sold and delivered the goods to C, who had no knowledge of or participation in the fraud, and thereupon C gave his check for the purchase money to B, who deposited it in the-bank, taking a certificate or ticket of deposit as for so much cash.. Held: The transactions vested a complete title to the goods in C. against which an attachment and levy in behalf of A’s creditors could not prevail.</p>

<p>Practice — Instruction — Comment on Evidence. — In an action against a street railway company for damages caused by the defendant’s negligence in starting the car while the plaintiff was alighting, an instruction to the effect that certain acts of the plaintiff were “ all that the law required of her, so far as diligence on her part in getting off the car is concerned,” and that under such circumstances the starting of the car was “ an act of negligence on the part of the defendant ”, is erroneous, as being a comment on the evidence.</p>

<p>1. Evidence—Written Contract Varied by Parol.—It is error to admit parol testimony to vary the terms of a written contract, when there is no ambiguity in the writing, and the contract is complete in itself.</p> <p>33. Practice—Demurrer to Evidence.—Where the plaintiff sued for work done in second-class masonry, and the engineer, by whom, under the terms of the contract, the measurements and classifications were to be determined, testified that the plaintiff did no second-class masonry, the court ought to have sustained a demurrer to the evidence.</p>

<p>Appeal from the St. Louis Circuit Court, Hon. George W. Lubke, Judge.</p> <p>The penalty or forfeiture sued for abated by the death of Hr. Rose. An action for the recovery of the statutory penalty under sections 3311 and 3312, Revised Statutes, is a penal action. 2 Jones on Mortgages [2 Ed.] sec. 990; Stone v. Lannon, 6 Wis. 497. An action for a penalty or forfeiture created by statute does not survive. Bank v. Collins, 5 Hun, 209 ; StaJces v. StioTcney, 96 N. Y. 323 ; McBratney v. Railroad, 17 Hun, 389 ; Little v. Conant, 2 Pick. 527 ; O' Donnell v. Seybert, 13 Serg. & R. 54; People v. Tioga C. P., 19 Wend. 76, 77; TFacZe v. Kalbfleiseh, 52 N. Y. 287 ; Johnson v. Plwood, 82 N. Y. 362; Hegerieh v. Keddie, 99 N. Y. 258, 262; Snyder v. Railroad, 86 Mo. 617. The subject is well illustrated in the various cases which hold that an action for breach of promise of marriage does not survive. Stebbins v, Palmer, 1 Pick. 171; Smith v. Sherman, 4 Cush. 408; Kelley v. Riley, 106 Mass. 339; Wade v. Kalbfleiseh, 52 N. Y. 282; Hayden v. Vreeland, 37 N. J. Law (8 Yroom), 372; 3 Williams on Executors [6 Am. Ed.] 1728, 1830; Schouler’s Executors and Administrators, sec. 370 ; Higginsv. McNally's Adm'r, 9 Mo. 494; Jewett v. Weaver, Adm'r, 10 Mo. 234; Proust v. Bruton, Adm'r, 15 Mo. 619 ; Stanley v. Vogel, 9 Mo. App. 98; s. c., 78 Mo. 245 ; Town v. Rhomberg, 78 Mo. 547, 549. The note of July 27, 1881, is either a renewal of the note of July 27, 1880, or the latter was reissued and redelivered as collateral to the former. In neither case is the plaintiff entitled to a release of the deed of trust. Leppold v. Held, 58 Mo. 213; Christian v. Newberry, 61 Mo. 446; Darst v. Cale, 83 111. 137, 142. Upon the undisputed facts of the case, Ur. Rose was not liable to a penalty for failing to release the deed of trust. He had substantial grounds for so refusing, and honestly entertained the opinion that his unpaid note was secured by the deed of trust. Plaintiff, too, was estopped from asserting the contrary. 2 Jones on Mortgages [2 Ed.] sec. 991; Burrotos v. Bangs, 34 Mich. 304 ; Haubert v. Haworth, 9 Phila. 123 ; Marvin v. Vedder, 5 Cowen, 674.</p> <p>The action against Ur. Edward Rose did not abate by his death, because the action itself survived or continued. Rev. Stat., secs. 96, 97, 3663 ; Higgins v. Breen, 9 Mo. 497; James v. Christy, 18 Mo. 162; Baker v. Crandall, 78 Mo. 584; Bliss on Code Pleadings [ 2 Ed. ] secs. 39, 43. The words of the .statute embrace every wrong done to the property, rights, or interests of another; these are to be considered disjunctively, and to include all wrongs whereby the aggrieved party is injured, except those named and excepted in section ninety-seven. Haight v. Hayt, 19 N. Y. 464. There was no evidence that the-note of July 27, 1881, was a renewal of the note of July 27, 1880, which was paid at maturity. The instructions given by the court put the case fairly to the jury upon the evidence adduced. The evidence showed conclusively that the note of July 27, 1880, was paid July 27, 1881, and that Dr. Edward Rose received the money. He nevertheless claimed a right to hold this note as against the plaintiff and her property. It is plain that to give him such right he must show some act on her part. The answer of the defendant was a general denial. If Dr. Rose had any substantial ground for refusing to enter satisfaction of the deed of trust, other than the one that the note had not been paid, this would be matter of affirmative defence. 2 Jones on Mortgages [3 Ed.] sec. 991.</p>

<p>Appeal from the Bollinger Circuit Court, Hon. James D. Fox, Judge.</p> <p>The instructions numbered one to six prayed by plaintiff were' improperly refused. Taken in their entirety, they fairly presented the law of the whole case, were clear and confined to the contract sued on, and were based on the evidence adduced at the trial. Talbot v. Means, 21 Mo. 427; Thomas v. Babb, 45 Mo. 384; McKeon v. Railroad, 43 Mo. 405 ; Glass v. Gelvin, 80 Mo. 297 ; Livingston v. Ins. Co., 7 Cranch, 506. 544'; larret v. Morton,, 44 Mo. 275; Mellon v. Smith, 65 Mo. 315 ; Story on Contracts [3 Ed.] sec. 844a/ 2 Parsons on Contracts [6 Ed.] ■sec. 679. Even in a case of fraud, which is neither charged nor proved in this case, the parties must be placed in statu quo. Cahn v. Reed, 18 Mo. 116; Pearsel v. Chapin, 44 Pa. St. 9 ; Estes v. Reynolds, 75 Mo. 563. There was no time named in contract; if agreed on, it should have been incorporated in it. Smith v. Shell, 82 Mo. 215. And there was no proof of any modification of the contract on a new consideration which would be necessary to authorize instructions on specific articles and time. Henning v. Ins. Co., 47 Mo. 425. A written contract supersedes a prior verbal agreement concerning the same matter. Hager v. Hager, 71 Mo. 610 ; Christian v. Hodges, 75 Mo. 413. Instructions numbered two and three given by the court for plaintiff, as well as those given for defendant numbered one, three, four, five, and seven, are objectionable for the same reasons, and tend to confuse the jury as to time of delivery, not mentioned in contract, and notes not admitted in evidence; and are inconsistent with .instructions as a -whole. Donahoe v. Railroad, 83 Mo. 560 ; Chouteau v. Iron Co., 82 Mo. 73; Creer v. ParTcer, 85 Mo. 107. The other instructions, numbered two and eight, given for defendant should not have been given, because, in effect, they make a contract for the parties which they never made. The rule is, that when a written contract is made, everything is incorporated therein. Hager v. Hager, 71 Mo. 610; Chrisman v. Hodges, 75 Mo. 413. These instructions confined the case within certain limits and are inconsistent with others given. They should be predicated on the whole evidence. Mansur v. Botts, 30 Mo. 657; Sheedy v. Streeter, 70Mo. 679. Instructions should be clear and consistent as a whole, ■otherwise they are calculated to mislead. One instruction cannot cure the defects in another. Henschen v. <y Bannon, 56 Mo. 280; Price v. Railroad, 77 Mo. 508 ; Lampert v. Gas Co., 12 Mo. App. 576; Stevenson v. Hancock, 72 Mo. 612. Contradictory instructions multiply the evils in both and correct neither. State ®. Hauert, 2 Mo. App. 295. An erroneous instruction is not cured by one given to the other party. Goetz ®. Railroad, 50 Mo. 472. These instructions were clearly repugnant and were error. Frederick ®. Allgaier, 88 Mo. 598, These instructions singled out particular facts (governors, pump, lower first joint, belting, concave, new straw carrier) which were not conclusive by the evidence, nor shown to be in the contract, and emphasized them, which was manifest error. Koenig ®. Life Association, 3 Mo. App. 596; Siegrist ®. Arnot, 10 Mo. App. 197 ; Kendig ®. Railroad, 79 Mo. 207; Jamison ». Carroll, 5 Mo. App. 598; Ehrlich ®. Ins. Co., 15 Mo. App. 579 ; Clay v. Railroad, 17 Mo. App. 629 ; Schaefer v. Leahy, 21 Mo. App. 110; Weil ®. Schwartz, 21 Mo. App. 372; Judd ®. Railroad, 53 Mo. 56; Hackman ®. Maguire, 20 Mo. App. 286. The motion for a new trial complied with the requirements of the statute. Rev. Stat., sec. 3704. The weight of the evidence was greatly against the verdict, and, in view of the conflicting instructions, leads to the conviction that there were prejudice and gross ignorance on the part of the jury. Taylor ®. Fox, 16 Mo. App. 527; Lionberger ®. Pohlman, 16 Mo. App. 392. The evidence made a clear case for plaintiff, and a new trial should have been awarded. Borgraefe ®. Knights of Honor, 22 Mo. App. 127. The newly-discovered evidence was not cumulative, but material, and would have changed the result. If material, a new trial should have been given. State ®. Locke, 58 Mo. 107; 26 Mo. 603. The surprise was as to facts. There was no element of neglect, as to the last moment the plaintiff was expected to arrive, but was sick and could not come. His testimony was necessary in addition to his deposition.</p> <p>The court properly refused the instructions asked by appellant. Appellant’s instructions numbered one and two are based upon the theory that the property in the machinery passed to respondents on the execution of the contract. Such is not the law as applicable to this case. The property does not pass absolutely unless the sale be completed, and it is not completed until the happening of any event expressly provided for, or so long as anything remains to be done to the thing sold to put it in a condition for delivery, or in a deliverable state. 1 Parsons Cont. [6 Ed.] 527; Benjamin on Sales [2 Am. Ed.] secs. 311, 318, 319, 320, 335 ; Lingham v. Eggleston, 27 Mich. 324; B. T. &. O. P. Qo. v. Btdnnard, 44 Mo. 71; Ober v. Carson, 62 Mo. 209. There was no-error in refusing instructions numbered three and five on the part of appellant. The abstract legal propositions stated therein are not applicable to the facts in this case. Longuemore v. Busby, 56 Mo. 540 ; Shaffner v. Leahy, 21 Mo. App. 110. The fourth instruction asked by appellant is not the law of the case. Unless he first shows performance of all the conditions precedent on his part he is not entitled to recover, and the amount of his expenditures of money in repairs is immaterial, and can form no basis of damages, unless he has put the property in a condition in which, under the terms of the contract, it was the duty of respondents to accept it. Monies v. Miller, 13 Mo. App. 363; Turner v. Mellier, 59 Mo. 526; Larimore v. Tyler, 88 Mo. 661. There was no evidence to base the sixth instruction on, and it was righlty refused. Givens v. Van Btudiford, 4 Mo. App. 499 ; Willis v. Stephens, 24 Mo. App. 494. When a contract contains various mutual stipulations, neither party can recover for a breach of a covenant in his favor without proving the performance of all acts, on his part, which by the contract are conditions precedent to the obligation of defendant. Drury v. Kile, 16 Mo. 450; Eyerman v. Cem. Ass’ n, 61 Mo. 489; Tates v. Ballentine, 56 Mo. 530; Turner v. Mellier, 59 Mo. 526; 2 Parsons Cont. [6 Ed.] 520, 532 ; Benjamin on Sales [2 Am. Ed.] sec. 318; Lewis v. Ins. Co., 61 Mo. 534; Haynes v. Chur eh, 12 Mo. App. 536. Respondents’ instruction number five correctly declares the law as-shown by authorities hereinbefore cited. 1 Parsons-Cont. [6 Ed.] 527; Benjamin on Sales [2 Am. Ed.] secs. 311, 318, 319, 320, 335; Lingham v. Egglestone, 27 Mich. 324; ■ Ober v. Carson, 62 Mo. 209 ; S. E. & C. P. Co. v. Stannard, 44 Mo. 71. Respondents’ instruction number six is a statement of an elementary proposition of law, and has so long been supported in this state that' it would seem superfluous to cite authorities; but see, Davis v. Railroad, 13 Mo. App. 449 ; Berry v. Wilson, 64 Mo. 164 ; Cooper v. Johnson, 81 Mo. 513. The allegation of the discovery of new evidence is not supported by affidavit, and should not be considered. State v. McLaughlin, 27 Mo. Ill; Culbertson v. Hill, 87 Mo. 553. The evidence alleged to be discovered is only cumulative and is no ground for a new trial. Roach v. Colburn, 76 Mo. 653 ; Snyder v. Burnham, 77 Mo. 52 ;■ Culbertson v. Hill, 87 Mo. 553 ; Stone v. Spencer, 77' Mo. 356. In this matter appellant has not complied with the requirements of the law, and his application was rightly overruled. Shaw v. Busch, 58 Mo. 107; Coolc v. Railroad, 56 Mo. 380 ; Boggs v. Lynch, 22 Mo. 563. The deposition of appellant was taken after the-filing of the petition and answer on which the case was tried. Albert then knew the issues in the suit and was competent to testify as to the facts involved therein. His failure to testify to the whole case as made by the-pleadings cannot now be urged as ground for new trial nor for error. Neither can he now be permitted to say he was surprised at the testimony of respondents. Their testimony was in support of their answer, and could not be a surprise to appellant. “A party cannot be-surprised, in its legal meaning, that his adversary intro-' duced testimony in support of the issues made by the pleadings. The general rule is that each party must understand his case and come prepared to meet the case made by his adversary.” Bragg v. City, 17 Mo. App. 221; WorTcman v. Taylor, 27 Mo. App. 550. Plaintiff should-have taken a nonsuit and sued again, or asked postponement till he could produce countervailing proof. Baroni v. JBrashear, 46 Mo. 345; Bragg v. City, 17 Mo. App. 221. The trial court in its sound discretion determined the motion for new trial in favor of defendants. This court will • not interfere with the action of the lower court. Eidelmiller v. Kwnp, 61 Mo 340; CooJc v. Railroad. 56 Mo. 380. The questions of fact in this case were submitted to a jury and by them under the evidence adduced, were determined in favor of defendants. This court will not disturb such finding when there is any evidence to support it. Faugman v. Husey, 43 Mo. .122 ; Longuemore v. Busby, 56 Mo. 540 ; Norton v. Moberly, 18 Mo. App. 457; Foundry v. McCann, 68 Mo. 195, .</p>

<p>Contract—Settlement.—The plaintiffs contracted to mate and furnish railroad ties out of timber belonging to the defendant, and were to be paid a fixed price for such as were accepted by a •designated inspector. Nothing was said about any payment for “ culls,” meaning such ties as should not be so accepted. The parties settled in full for the accepted ties at the end of each month, and a final settlement and payment in full were made at the end of all their transactions. But the plaintiffs never at any time demanded payment for culls, until the institution of the present suit, in which they claim compensation for the culls made by them and left upon the ground. Held, that nothing appears upon which 'the plaintiffs have a right of action.</p>

<p>' Appeal from the St. Charles Circuit Court, Hon. William W. Edwakds, J uclge.</p> <p>The court erred in admitting any testimony in relation to the alleged signature of A. H. Beyl on the back of the note in suit. It was not necessary for him to indorse in order to entitle plaintiff to recover. A transfer by delivery was sufficient. Patterson v. Gave, 61 Mo. 439 ; 1 Danl. N eg. Inst., secs. 729, 741. The trial court erred in admitting in evidence the J. Phil. Hoehn check and the Union Savings Bank book, for the purpose of proving the signature on the back of the note to be that of A. H. Beyl, or for any other purpose. State Clinton, 67 Mo. 380, 383, 385 : 1 Greenl. Evid., sec. 580; State v. Scott, ‘45 Mo. 304, 305, 306; Rose v. Bank, 91 Mo. 399. It was error to permit the plaintiff to examine the witnesses Beyl, J. P. Hoehn, W. W. Kirkpatrick, Jno. E. Stonebraker, and J. H. Alexander in relation to the identity of the signature or handwriting on the back of the note and check, and erred in .admitting any of said testimony. Rose v. Bank, 91 Mo. 399; State v. Olinton, 67 Mo. 380. It was equally erroneous to admit this testimony on cross-examination. Rose v. Bank, 91 Mo. 380, 402, 403. If Buenzi, one of the makers, produced the money and took up the note, it was a payment, and discharges the note. 2 Danl. Neg. Inst., p. 250, sec. 1221; Wolff v. Walter, 56 Mo. 292; Quigley v. Bank, 80 Mo. 289. It cannot be shown that he was acting as the agent of Blesse, so as to convert Blesse into a purchaser. 2 Danl. Neg. Inst., p. 251, sec. 1222. As the court sat as a jury in the trial of this cause, the rules as to the admission of evidence must be applied with the same stringency as if the cause had been submitted to a jury.</p> <p>The court did not err in permitting the plaintiff to prove that Beyl assigned said note to plaintiff. It may be conceded that no endorsement by the payee was necessary to enable the plaintiff to maintain an action thereon in his own name; that transfer by delivery was sufficient. The issue, however, was plainly made by the pleadings, and plaintiff necessarily was put to his proof on that issue. Furthermore, a transfer by delivery of the note sued on did not invest the plaintiff with its legal title, but only with its equitable title, with the right to maintain an action thereon in his own name. Boeka v. Huella, 28 Mo. 180; Quigley v. Bank, 80 Mo. 295. In order to prove that plaintiff held the legal title, that he was the legal holder of the note, it devolved on him to prove the written endorsement. The court did not err in admitting in evidence the I. P. Hoehn check. The witness Beyl, in his examination in chief, had positively sworn that the name “Henry Beyl” on the back of the note was not his signature; that he never signed his name in that way; that he always wrote his name on checks and notes “A. H. Beyl.” Can it be pretended that it was not legitimate cross-examination to show that the witness, within a few months after said transaction, had endorsed his name on checks in the manner claimed by plaintiff ? The J. P. Hoehn check was admitted by Beyl, in his cross-examination, to be genuine. Upon that admission, the check was introduced in evidence to enable the experts to use the same as a standard of authority, and to enable the court to make the comparison. • Bose v. Bank, 91 Mo. 399. The only issue presented by this record is a question of fact. Did the plaintiff purchase the note, as alleged in his petition, or was that note paid as alleged in defendants’ answer % This question of fact the trial court decided in favor of the plaintiff. The declarations of law given in the case are conceded to be correct. The judgment ought, therefore, to be affirmed.</p>

<p>1. Practice—Deposition—Insufficient Authentication. —An objeotion to a deposition for insufficiency of authentication cannot be raised for the first time when it is offered at the trial, no motion ttf suppress having been previously filed.</p> <p>2. Evidence—Agency.—Proof of agency by the testimony of the-agent is admissible, except in the case of a husband or wife testifying, one for the other, on the score of agency ; in which case the' agency must be proved by other evidence.</p> <p>3. Counter-Claim—Instructions.—A defendant cannot complain of an instruction to the effect that there is no evidence supporting his counter-claim, when in another instruction he is given the benefit of all that is shown in that connection, by a deduction to be made from the plaintiff’s claim, provided the jury shall find' the proofs sufficient therefor.</p>

<p>Administration—What Assets Subject to Demands oe Creditors. In a proceeding against an administrator to compel payment of a judgment which has been ordered by the probate court to be paid in the regular course of administration, the creditor can make no claim upon assets which the administrator had disbursed to distributees and for expenses of the estate, before the creditor’s demand accrued. But where the administrator has collected rents from lands previously partitioned to some of the distributees, and, having incorporated them with the funds of the estate, has disbursed the amounts in the course of his administration, and has afterwards collected the amount of a judgment against the representatives of a former grantor for breach of a covenant of warranty attached to the lands, the sum so collected is not to be regarded as a trust fund in the administrator’s hands for the benefit of the distributees whose rents were received and disbursed by him, but must be treated as assets of the estate, liable for satisfaction of the judgment which the probate court has ordered to be paid.</p>

Appeal • from Holt Circuit Court, Hon. C. A. Anthony, Judge. Statement of case by the court.

Clair Circuit Court, Hon. Daniel P. Stratton, Judge.- The case is stated in tlie opinion. I. The judgment on demurrer is wrong, and should, therefore, be reversed. The court erred in sustaining defendant’s demurrer. The petition states facts sufficient to constitute a cause of action. II.

Chas. H. S. Goodman, Judge. The case is stated, in the opinion. I. The information is invalid and void, because it is not accompanied by, or based upon, a complaint, as required by law. The prosecuting attorney has no right to file an information unless a complaint shall have been first filed with the justice or deposited with him. Laws of Mo., 1885, p. 145, secs. 2025, 2026.

C. A. Anthony, Judge. The case is stated in the opinion. I. The prosecuting witness is not liable for coses, when the prosecution fails, from any cause, unless the offence charged is a trespass against the person or property of another. Rev. Stat., secs. 1768, 1800; Appendix to Kelley’s Crim. Law [1880] sec. 279. p. 124.

John E. Ryland, Judge. The case is stated in the opinion. I. This proceeding was bottomed on the following section of the Revised Statutes of Missouri: “If any person shall wilfully or knowingly obstruct any public road * * * he or'they shall each pay a fine of not less than twenty dollars, to be recovered by indictment or information before a justice of the peace.” Rev. Stat., 1879, sec. 6964; Laws 1883, sec. 33, p. 165; Laws 1887, sec. 36, p. 254.

James. H. Slover, Judge. The case is stated in the opinion. I. It may be conceded that an agreement as to the time the risk is to run is necessary to a valid contract of insurance.

Charles Wl Sloan, Judge. Statement of case by the court. This is an action of replevin, and grows out of one following state of facts : On the third day of March, 1883, W. A. Harris and. James P. Harris executed to T. D. Rafter their chattel mortgage on the property in .question to secure to said Rafter the payment of their promissory note to Rafter for the sum of $424.75. The property seems to have belonged to Wm. A. Harris.

James H. Slovee, Judge. On motion for rehearing upon dismissal of appeal. I. It seems to us that in passing upon this motion two questions should be considered: (1) Has appellant or its counsel been negligent, or have they tried to cause delay? (2) Has respondent been injured? II. We challenge respondent to point to an act or word in the whole course of these proceedings that can be translated into neglect or an attempt to delay.

<p>Appeal from the Franklin Circuit Court, Hon. Rudolph Hirzel, Judge.</p> <p>The burden was on the plaintiff, the St. Louis, Kansas City & Colorado Railroad Company, and it had the right to open and close the case. The ruling of the court below in this regard was error. Const, of Mo., art. 2, sec. 21; Rev. Stat., sec. 896; Railroad v. Ridge, 57 Mo. 599; Aimer oth v. Railroad, 13 Mo. App. 91; McReynolds v. Railroad, 106 111. 157; Neff v. Cincinnati, 32 Ohio St. 215 ; Ins. Co. v. Penna, 16 Ohio, 324 ; Geach v. Ingall, 14 M. & W. 95 ; Ashby v. Bates, 15 M. & W. 589; Huntington v. Carkey, 33 Barb. 218 ; Young v. Highland, 9 Gratt. 16 ; City v. Frank, 9 Mo. App. 579; Wharton on Evidence, sec. 357; 1 Archibold’s Prac., 385. The court erred in its instruction numbered two, given at the instance of the defendant, wherein it told the jury that it might consider the ordinary danger of injury by fire created by the construction and operation of plaintiff’s road so far as they might believe such damage lessened the value of the land. Such damages, if any, are too remote and should not have been submitted to the jury. Proprietors v. Railroad, 10 Cush. 385; Turnpike Co. v. Railroad, 11 N. J. Law, 314; Rodemacher v. Railroad, 41 Iowa, 297; Railroad v. Lazarlos, 28 Penn. 203. The court erred in giving the instruction numbered three for the defendant, wherein it instructed the jury that in estimating the defendant’s damages they should consider defendant’s right to go upon said strip of land comprising plaintiff’s right of way at any other place than such farm-crossings as completely cut off by the condemnation of said strip. It appears from the evidence that a farm-crossing had been established for defendant, under a high trestle, which was satisfactory to defendant, but it was claimed that, inasmuch as plaintiff could change the crossing and close it up, the contingency of the exercise of this power was an element of damages to be considered by the jury. In the first place we insist that the instruction is not the law. The plaintiff has no power to establish farm-crossings and then remove .or close them and establish them at improper or inconvenient places. Mills on Em. Dom. [2Ed.J sec. 213. Again, if such power existed, the possible exercise of it at some future time from which damage might accrue to the defendant is too remote to constitute in this case an element of damage. The court erred in overruling plaintiff’s objection to the following question propounded to witnesses: “Did you take into consideration the fact that railroads, when constructed and put into operation in the ordinary course for the transportation of cars by steam, make an increased danger of fire?” This evidence was incompetent and immaterial. An increased danger of 'fire is not an element of damage proper for the consideration of the jury.</p>

<p>Appeal from the Franklin Circuit Court, Hon. Rudolph Hirzel, Judge.</p> <p>The burden was on the plaintiff, the St. Louis, Kansas City & Colorado Railroad Company, and it had the right to open and close the case ; the ruling of the court below in this regard was error. Const, of Mo., art. 2, sec. 21; Rev. Stat., sec. 896 ; Railroad v. . Ridge, 57 Mo. 599; Almeroth v. Railroad, 13 Mo. App. 91; McReynolds v. Railroad, 106 111. 157; Whart. on Evid., sec. 357; Neff v. Cincinnati, 32 Ohio St. 215 ; Ins. Co. v. Penna, 16 Ohio, 324 ; Geach v. Ingall, 14 M. & W. 385; Ashby v. Bates, 15 M. & W. 589; Huntington v. Carltey, 33 Barb. 218 ; Young v. Highland, 9 Graft. 16; City v. Hr ante, 9 Mo. App. 579 ; 1 Arch. Prac. 385. The court erred in its instruction number three, given at the instance of defendant, wherein it told the jury that it might consider the ordinary danger of injuries by fire created by the construction and operation of plaintiff’s road so far as they might believe such danger lessened the value of the land. Such damages, if any, are too remote, and should not have been considered by the jury. Parrot v. Railroad, 10 Ohio St. 624 ;■ Proprietors v. Railroad, 10 Cush. 385; Turnpilce Co. v. Railroad, 11 N. J. Law, 314; Rodemacher v. Railraad, 41 Iowa, 297; Railroad v. Lazamos, 28 Penn. 203. The judgment in this case should be reversed because F. A. North, representative of the defendant, who was present with the jury when they viewed the premises sought to be condemned, violated the order of the court, and attempted, by his conversation with the jury, to influence their verdict.</p>

Louis Circuit Court, IIon. Leroy B. Valliant, Judge. The dimensions to be plastered, under plaintiff’s contract, could only be proved legally by the introduction of the drawings, plans, and elevations. And inasmuch as his alleged extras, in any event, could only be the excess, in kind, over the contract work, it was impossible to prove legally the extras without proving legally and definitely the amount of contract work.

Appeal ‘from the St. Louis Circuit Court, Hon. ‘ George W. Lubke, Judge. The petition in this case is not sufficient under section 3176, of the Revised Statutes, to entitle the plaintiff to a mechanic’s lien against the defendants’ property, .for the reason that the account set forth in the petition embraces labor, lime, brick, and other materials, and such a petition is open to the objection that it embraces a lumping-charge. Edgar v. Salisbury, 17 Mo. 271; Lewis r>.

Louis Circuit Court, Hon. Daniel Dillon, Judge. The court below erred in instructing the jury that they might give vindictive damages. The'evidence did not warrant such an instruction, and it greatly prejudiced the defendants’ case. Joice v. Branson, 73 Mo. 28; Whalen v. Church, 63 Mo. 326; McKeon v. Railroad, 42 Mo. 79, 85, 86; Merrill v. City, 12 Mo. App. 466; Morgan v. Durfee, 69 Mo. 478; Railroad v. Quigley, 62 U. S. 214; Hddleman v. Transfer Co., 3 Mo.

JohnG. Wear, Judge. The court erred in rejecting as evidence that part of the transcript in the case of Goddard, Peck & Company vs. Spiller, Haynes & McRee, that was a copy •of the transcript of said… Held: in this case, that: “The attachment, with the sheriff’s return thereon, was one of the records of the circuit court ’ ’ of Dunklin county ; and that an application to amend the return should be made in that court. 22 Mo. App. 303.

E. L. Edwards, Judge. Statement of case by the court. The petition in this case is as follows : “The plaintiff states that on the twenty-fifth day of April, 1881, he was constable of Boonville township in the county of Cooper and state of Missouri, duly 'commissioned and qualified; that on the said day John L. O’Bryan commenced a suit by attachment before R. H. Howard, justice of the peace of said Boonville township, county and state aforesaid, against one Charles Kaufman,…

Charles W. Sloan, Judge. The case is stated in the opinion. I. The plaintiff was given a legal remedy by statute to subject the property to sale for the purchase money. Rev. Stat., sec. 2345. II. The death of Kemper and insolvency of his estate prevented a resort to a court of law. In such case equity will interfere when the remedy is inadequate at law. Cass Co. v. Creen, 66 Mo. 478. III.

Hon. Gf. D. Burgess, Judge. The case is sufficiently .stated in the opinion of the court. I. Bespondent insists that under .'the rules and decisions of this court, the judgment of the circuit court should stand. II. The pamphlet filed here by appellants presents no. abstract of the record as required by rule fifteen. “ Every part of the transcript relied upon as error, and all that is relied on to show it such, must be printed in the abstract.” Goodson v Railroad, 23 Mo.

E. L. Edwards, Judge. The case is stated in the opinion. I. It is hardly necessary to cite any authority in this • case, as the fraud of Guenther & Blackman is clearly developed by the evidence. Bagar v. Graves, 25 Mo. App. 164, and cases cited; Grocery Co. v. Cole, 26 Mo.' App. 5; Bank's. Goldsoli, 14 Mo. App. 586. ■ II. The trial court erred in taking the case from the jury: Wilson v. Board, 63 Mo. 137; Brink v. Railroad, 17 Mo. App. 177; Fisher v. Railroad, 23 Mo.

Henry P. White, Judge. Tke case is stated in the opinion. I. The running of a rock-crushing machine, at the place charged in the information, constituted a nuisance; and the ordinance under which defendant was prosecuted—the violation of which he admitted—is valid. Charter Kansas City, art. 3, sec. 1, subdivs. 5, 33 ; Acts 1879, pp. 204, 207; Si. Louis v. Frein, 9 Mo. App. 590 ; Leetev. Pilgrim Society, 14 Mo. App. 590 ; St. Louis v. Stern,. 3 Mo.

Turner A. G-ill, Judge. The case is stated in the opinion. The Supreme Court has directly decided that am action of this nature cannot be maintained against the City of Kansas. The act establishing the board of police commissioners .and the amendment thereto are alone sufficient to emphatically negative the city’s liability to the appellee, his suit not being on a, warrant drawn on the city by the board. Argument to any extent would be superfluous.

E. M. Hughes, Judge. Statement of case by the court. This is a proceeding in equity to have a certain instrument of writing declared a deed of assignment for the benefit of creditors, and to enjoin the trustee from executing the same as a chattel mortgage, and for other relief. The facts are as follows: On the twenty-eighth day of July, 1886, Martha E. Botts, a feme sole, was engaged in a general mercantile business at Mexico, Missouri.

W. J. Stone, Special Judge. Statement of case by the court. This was a suit upon a policy of fire insurance. The policy was issued on the instalment plan, and contained the following clause: “5. This company shall not be liable for any loss or damage under this, policy if default shall have been made in the payment of any instalment premium due by the terms of the instalment note.

Hon. D. P. Stratton, Judge. Statement of case by tbe court This is an action of replevin for the recovery of the possession of a cow. The controversy grew .out of the following state of facts: On the eighteenth of June, 1880, the plaintiff executed to defendant his chattel mortgage on the cow in question, and on a team of, horses, to indemnify the defendant as surety for plaintiff on a certain note of that date to one C. H. Pool.

James H. Sloyer, Judge. I. This was a motion filed by the appellee to affirm the judgment in this cause for the reason that the appellant failed to file the transcript in the case on or before the twentieth day of February, 1888, and the motion is based upon a certificate of the circuit clerk as provided in the session acts of 1883.

Cyrus A. Anthony, Judge. The case is stated in the opinion. I. The court should have excluded the testimony in relation to the transaction which occurred at Ira Moore’s house, long after the execution of the note sued on. Row's Ex'r v. Spenney Ex'r, 20 Mo. 386. II. Where one is sued on a note he cannot escape liability by proving that any number of persons admitted that they forged his name to it.

Cyrus A. Anthony, Judge. Statement of case by the court. This is an action of interpleader in an attachment suit. The evidence showed that for a year or so prior to April, 1885, the firm of Long & Littel were engaged as partners in the mercantile business at Dotham, Atchison county. They also had a branch store at the town of Fairfax. The business at Fairfax was run by the interpleader Zeliff, as the agent of Long & Littel.

Turner A. Gill, Judge. ■ Statement of case by the court. This is an action to recover a broker’s commission for selling land.

James H. Slover, Judge. Statement of case by the court. This is an action to recover on several tax bills issued by the engineer of the City of Kansas to Com-stock & Halsey, as contractors, for the paving of Broadway, a street on said city, from Third street south to the city limits. The plaintiff sues as assignee under Com-stock & Halsey.

Chas. H. S. Goodman, Judge. Statement of case by the court. This was an action for slander. The petition contained three counts. The court instructed the jury at the instance of the defendant to find for him as to th'e third count.

Pending an appeal, the court had no right to make the order of distribution, because a violation of its own decision at the previous term in the same cause. By appeal it lost all jurisdiction of the ca'se. Ladd v. Couzins, 35 Mo. 513; Stewart v. Stringer, 41 Mo. 405; Baasenv.

James H. Slover, Judge. The case is stated in the opinion. I. The evidence shows that the purpose of the agreement was to give plaintiff two thousand dollars. There was no consideration for it. It had no effect on the conduct of the parties. Plaintiff did not sign it. II. When the agreement was made deceased had not made his will. The agreement is testamentary in its character and designed as such.

Rudolph Hirzel, Judge. The case is stated in the opinion. I. We claim that the petition is insufficient both in its heading or caption and in its conclusion. The first paragraph of section 3511 of the practice act, in stating what a petition shall contain, says, among other things, that it shall specify the term of the court. This being a positive command, we insist that it does not fall within the defects that are cured by verdict. In the case of Pier ■».

Yirton Pike, Special Judge. Statement of case by the court. This was an action begun by plaintiffs before a justice of the peace to recover compensation as brokers for effecting the sale of real estate of the defendant.

Gr. D. Burgess, Judge. Certified to Supreme Court. The case is sufficiently stated in the opinion of the court. I. The demurrer to the evidence should have been given. Prom the facts in proof, the jury could not infer that the disaster was occasioned by the use of a switch-rope coupling. Powell v. Railroad, 76 Mo. 80 ; Randall v. Railroad, 109 U. S. 478 ; Stepp v. Railroad, 85 Mo. 233. II.

E. L, Edwards, Judge. The case is stated, m the opinion. I. The statement and affidavit filed before the justice was sufficient. The affidavit could be made by an agent. Rev. Stat., sec. 2882 ; Johnson v. Mason, 16 Mo. App. 273. II. The omission to state that the property had been injured, how and in what manner, was an immaterial omission. It was not a jurisdictional fact necessary to be stated. Reigert v. Voelker, 6 Mo. App. 53; Berry v. Kaufman, 70 Mo. 187. III.

Thomas E. Turney, Special Judge. Statement of case by the court. This is a suit in equity by a creditor against an assignee of an insolvent estate. The petition, substantially, alleges, that on-day of January, 1882, one Rufus Suits being insolvent made an assignment to the defendant Taylor for the benefit of creditors. Taylor duly qualified and entered upon the duties of his office.

Andbew Ellison, Judge. Statement of case by the court. This controversy grows out of objections made, by heirs to certain credits asked by an executor in his final settlement.

D. A. DeAkmond, Judge. The facts are stated in the opinion. I. The court erred in giving plaintiff’s first instruction. It is too general and indefinite, and ignores the question of contributory negligence pleaded by defendant.

J. B. G-antt, Judge. Statement of case by tbe court. Tbe following is believed to be a sufficient statement of tbe case. Held: and it will probably be insisted here, that the present action was adjudicated by the judgment on the interplea in favor of these plaintiffs. This is erroneous. The issues in this case were not involved in the interplea. The interplea was in the nature of replevin. Burgert v. Borchert, 59 Mo. 85: Manufacturing Co. v. Bean, 20 Mo.

Circuit Court, Hon. Andrew Ellison, Judge. Certified to Supreme Court. The case is stated in the opinion. I. The prevailing rule in the state is that executors and.administrators stand in the position of trustees to those interested in the estate upon which they administer, and are liable only for want of due care and skill, and that the measure of care and skill required of them is that which prudent men exercise in the direction of their own affairs.

James M. Sandusky, Judge. The case is stated in the opinion. I. The court erred in refusing to direct a finding for defendant as prayed. There was a total failure of proof that the crossing was not a “good and sufficient crossing” ; or that defendant permitted it to remain in a dangerous condition, or that plaintiff ’ s wife was injured because of such condition. Field v. Davis, 27 Kan. 405.

Turner A. Gill, Judge. I. The court erred in refusing the first instruction asked by defendant. (1) Because plaintiff did not show that he ever spoke to purchaser in regard to defendant’s property, or said, or did anything to induce him to buy it. Armstrong v. Winn, 29 Minn. 126. ( 2) Because, even if plaintiff made the contract offered in evidence, it could not be enforced by the owner, and the purchaser abandoned it and refused to carry it out.