Volume 32 — Missouri Appeal Reports

— Hon. James M. Davis, Judge. Tlie case is stated in the opinion. (1) The written agreement between defendant Blackhurst and Jacobs was no defence to the action of plaintiff and should not have been admitted in evidence, because Jacobs had no authority to make it. Benny v. Rhodes, 18 Mo. 149 ; Palmer v. Hatch, 48 Mo. 585 ; Wheeler v. Givan, 65 Mo. 89.

— Hon. James H. Sloveb, Judge. Statement of case by the court. This was an action by the plaintiff for the recovery of damages on account of injuries sustained, as alleged, by reason of an unsafe and dangerous sidewalk on one of defendant’s streets. The sidewalk complained of was on the north side of Fifth street in Kansas City, and the adjacent ground inside of the sidewalk was twenty or thirty feet lower than it. The sidewalk- was built by defendant.

— Hon. Cvrus A. Anthony, Judge. Tlie case is stated in tlie opinion. (1) The court erred in refusing to permit defendant Gossett to testify what instructions he gave his brother William Gossett about paying the two hundred and twenty dollars into the bank.

— Hon. E. C. Devore, Special Judge. The case is .stated in tlie opinion. (1) The defendant’s appeal having been regularly taken to the circuit court, that court had jurisdiction of the cause, and the arraignment of defendant in the circuit court was proper and entitled defendant to a trial. State v. West, 84 Mo. 440.

— Hon. James M. Sandusky, Judge. The case is stated in tlie opinion. (1) Defendant’s instruction numbered one should have been given. Not a single allegation in the petition •constituting a cause of action against the defendant had been proved. WaldMer v. Railroad,, 71 Mo. 514; Carson v. Cummings, 69 Mo. 325; Russell ®. McCartney,, 21 Mo. App. 544; McCray v. Lowry, 25 Mo. App. 247; R. S., secs. 3511, 3586. (2) The court erred in excluding the testimony of Peter Fisher.

— Hon. John P. Strother, Judge. Statement of case by the court. This is an action in trespass, instituted before a. justice of the peace. The statement contained several counts. The gravamen of the complaint is, that defendant cut down and destroyed a wire fence, the property of plaintiff in his premises. Some of the counts were, under the statute, for double damages, etc., and some were for a common-law trespass.

— Hon. James H. Slover, Judge. The case is stated in the opinion. (1) The first instruction given for the plaintiff was manifestly misleading, and it is not the law on the state of facts shown by the evidence. This made the defendant liable without any reference to the question whether or not there were two separate and independent transactions.

— How. D. A. DeArmond, Judge. The case Is stated in the opinion. (1) It was improper to admit the testimony of the witness Mahan as to his visit to plaintiff’s farm and his conversation with plaintiff concerning the adjustment of the loss in controversy. The statements or declarations of a party or his agent in the nature of an offer to compromise or settle are inadmissible as evidence. Smith v. Shell, 82 Mo. 215.

— IIon. James H. SloveRj Judge. The case is stated in the opinion. (1) We contend that the court erred in refusing to instruct the jury that under the pleadings and the evidence the verdict must be for the defendant; and in overruling defendant’s motion in arrest of judgment.

— ITon. Turner A. Oill, Judge. The case is stated in the opinion. (1) [a] The first instruction tells the jury that the defendant’s car was stopped to allow plaintiff to alight; thus assuming as true, what was in controversy in the testimony. This alone is sufficient for reversal. Maxwell v. Railroad, 85 Mo. 96 ; Rowling v. Allen, 88 Mo. 5193 Stober t>. Railroad, 91 Mo. 509.

— Hon. Ben. E. Turner, Judge. Instructions one and two given for plaintiff were erroneous. These instructions assert the proposition that a “reasonable safeguard,” if in the form of a barbed-wire fence, must be at least four and a half feet high; that, if the safeguard was less than four and a half feet high, and so constructed as to injure an animal .running into it; then defendants are liable, notwithstanding any fault or contributory negligence on the part of plaintiff.

— Hon. Ben. E. Turner, Judge. The court erred in sustaining the motion to dismiss, on the ground that the county court had no jurisdiction. The petition certainly states a case for vacation, and if so, the circuit court could not- dismiss except upon a trial on the merits. R. S., sec. 5050 ; also secs. 5047, 5048. Section 5050 has no connection with sections 5047 and 5048 except as to notice, which in this case was given.

— Hon. E. M. Hughes, Judge. The rule that plea in bar waives dilatory pleas, has been changed by the statute. R. S. 1879, secs. 3513 and 3522'; Little v. Harrington, 71 Mo. 390 ; Egler v. Jones, 79 Mo. 261; Thorngoson v. Bronson, 17 Mo. App. 456.

— Hon. E. M. , Hughes, Judge. The wheat in controversy was growing upon the mortgaged premises, and was not mature at the time of the foi’eclosure sale under the deed of trust, to-wit, on March 8, 1886, and the plaintiff by her purchase at said sale acquired the title to the wheat. Salmon o. Feioell, 17 Mo. App. 118 ; Sheparcl v. Philbriclc, 2 Eenio, 175 ; Lane v. King, 8 Wend. 584; Jones v. Thomas, 8 Blackf. 428; Jones on Mortgages, sec. 697.

<p>1. Practice, Appellate: sufficiency of evidence. When the offense charged against a defendant is in its nature provable by circumstantial evidence only, and two successive juries have found such evidence sufficient to convict, an appellate court cannot consider an objection that the evidence was insufficient to support the verdict.</p> <p>2. Adultery:, evidence: admissions prior to offense. Admissions made by the defendant, anterior to the period within which the crime of adultery is charged to have been committed, are admissible in evidence, not as proof of the alleged crime, but as explanatory of acts subsequently done, within the period limited in the charge.</p> <p>3. Evidence : circumstantial. When a fact is to be established by circumstantial evidence, all surrounding circumstances are proper to be weighed by the jury, if they have any bearing whatever on the ultimate fact sought to be established.</p>

Original proceeding by mandamus. By the averments of the writ every element of discretion under the ordinance is eliminated from the case, and the ordinance, which is as ranch the law of the city of Kolia as the statute itself, provides that upon compliance with its provisions the council “ shall order a license to be issued,” and mandamus will lie to enforce this command. State ex rel. v. Meyers, 80 Mo. 601.

— Hon. Charles W. Sloan, Judge. The case is stated in the opinion. * (1) The statement of plaintiff’s claim sets forth a legal liability created by the law itself, and not by any mutual understanding and agreement between plaintiff and the deceased.

— Hon. Richard Field, Judge. The case is stated in the opinion. (1) Upon this record, the following questions arise: Was it not error to admit oral evidence to engraft •additional stipulations upon this contract ? We answer in the affirmative. Pearson v* Carson, 69 Mo. 550.

— Hon. Richard Field, Judge. The case is stated in the opinion.

— Hon. Oliver W. Spencer, Judge. Certified to Supreme Court. The case is stated in tlie opinion. (1) Appellant asks that the judgment of the circuit court be reversed on account of the following errors committed by said court: The court committed error in giving the instruction by which the jury was directed to find for defendant. The case must go to the jury.

— Hon. Charles W. Sloan, Judge.' Tlie case is stated in the opinion, (1) The respondents directed the levy of the writ of attachment and the levy of execution; the officer was but their agent in the transaction, and the possession of the officer in such cases, was the possession of the respondents, and replevin can be maintained against them. The possession of the officer was per my et per tout.

— Hon. E: L. Edwards, Judge. Tbe case is stated in the opinion. (1) The case made by plaintiff did not show that public travel along Water street was obstructed. A portion of the street was kept open, and in good repair, and was sufficient to all travel upon the street.

— Hon. W. I. Wallace, Judge. The case is stated in tlie opinion. (1) The only question presented by this record is as to whether, upon the pleadings in this cause, the circuit court had jurisdiction. The contention of defendant that the circuit court has no jurisdiction over the subject-matter of this action is not tenable.

— Hon. D. P. Stratton, Judge. Motion to affirm judgment for failure to file transcript sustained and judgment affirmed. The record shows that the appeal was allowed February 4, 1888. The first day of the next term of this court was March 5, 1888. This year is a leap-year. The transcript was filed September 10, 1888. The motion to affirm is based upon the ground that the transcript was not filed at least fifteen days before the March term of this court.

<p>Appeal from, Jasper Circuit Court. — Hon. M. G. McGregor, Judge.</p> <p>The caséis stated in the opinion.</p>

— Hon. E. L. ■ Edwards, Judge. The case is stated in the opinion. (1) The execution in this case was issued without ■authority of law. The order upon which it is based is not binding on defendant. The court could nob make the order for alimony pendente lite in any case ; certainly not in the absence of jurisdiction. The defendant was entitled to his day in court on a legal summons. R. S. 1879, secs. 3283, 3288, 3487, 3488 5 Cloud v. City, 86 Mo. 358.

— Hon. James H. Slovee, Judge. Statement of case by the court. The petition in this suit consisted of three counts. The first and second were each upon a bill of exchange which had been drawn by the defendant.

<p>Practice: affirmance : case adjudged. The court holds (after a careful examination of the abstracts of record, and the briefs of counsel) that the case was, on the whole, retried by the circuit court in substantial conformity with the principles of the decision of the supreme court (reversing a former judgment in this case) in Rimel v. Hays, 83 Mo. 200. Also, that whatever error was committed by the court in overruling certain objections made by plaintiffs in error to evidence offered by defendant in error, was cured by instructions given at the former’s instance.</p>

— Hon. Richard Field, Judge. The case is stated in the opinion. (1) The whole contract between the parties being reduced to writing, the contract of order and sale as shown in the record must control.

— Hon. G. D Burgess, Judge. The case is stated in the opinion. (1) The requirement of the statute that exceptions must be filed within- ten days after the service of notice upon the defendant of the filing of -the commissioners’ report, fixes the limit of time beyond which exceptions cannot be filed, and nothing more. It was really intended to compel prompt action on the part of the defendant, while giving him a reasonable time within which to file exceptions.

— Hon. Richard Field, Judge. ■The case is stated in the opinion. (1) Thé contract for the transmission of the message, being entered into on Sunday, and the requirement of the same also being that it should be transmitted immediately on that day, was, unless a work of necessity, void and a nullity, and the court erred in denying this proposition of law in the defendant’s second instruction..

— 1-Ion. C. H. S. Goodman, Judge. Statement of case by the court.

— Hon. Turner A. G-ill, Judge. The case is stated in the opinion. (1) Instructions one and two given by the court are erroneous in that they fail to give to the jury the proper manner of determining the measure of damages. And further, instruction one tells the jury peremptorily to find for the plaintiff, without giving them the opportunity to pass upon the issues of fact presented by the evidence in the case.

— Hon. James H. Slover, Judge. The case is stated in the opinion. (1) The court erred in giving the plaintiff’s instructions, which ignored the fact that the plaintiff was a gratuitous passenger, riding on a pass which stipulated that she assumed all risk from accident and danger to her person.

— How. Ben. E. Tubneb, Judge. Has tlie plaintiff or tlie public acquired tlie,right by prescription to have the waters of Honey creek flow north over defendant’s land % Has the appellant, by the acts of his ancestor, Arphaxad Musgrove, lost the right to have the waters of Honey creek run south over respondent’s land ? Is appellant, on account of the acts and declarations of Arphaxad Musgrove, estopped from asserting that the channel of Honey creek is not' over his land?

<p>1. Affirmance for Failure to Prosecute Appeal. Upon a motion to affirm for failure to file the transcript within the time required by law, where it appears that the appeal was granted four months, and the transcript was ready for filing more than two months before the first day of the term of this court, no sufficient excuse for the delay appears in the facts that the appellant resides in the state of Pennsylvania, and that the money to pay transcript and filing fees was not furnished to the attorney here until a few days before the beginning of the term.</p> <p>3. .Practice, Appellate: damages on affirmance. Where no supersedeas bond was given on the appeal, and the question in controversy appears to be fairly debatable, damages will' not be awarded on affirmance of the judgment.</p>

<p>Practice, Trial: cause of action. A suit for recovery of a debt must be brought on the original cause of action, and not on a subsequent acknowledgment of indebtedness.</p> <p>Statute of Limitations: operation and method of pleading. The statute of limitations only suspends the remedy against the defendant when he so elects. In resting upon it, he must plead the particular period of limitation which he chooses to invoke, and can avail himself of no other.</p> <p>Limitation: reimbursement of surety. The obligation of a principal debtor to his surety who has paid the debt for him is subject to the statute of limitations of five years. A chattel mort.gage given to secure the obligation may be effectual as a new promise, to prevent the running of the statute up to the date of the mortgage. But it cannot operate as a promise in writing, so as to introduce the ten-year limitation on the same indebtedness.</p> <p>4: Limitation: postponement by collateral undertaking. A chattel mortgage containing an undertaking that the debtor will be responsible for so much of the indebtedness as the creditor may fail to. realize from another source does not prevent the creditor from suing at any time, and does not prevent the statute from running1 until it is ascertained that no amount, or, if any, what amount, can be so realized.</p> <p>Limitation: practice, appellate. Although the trial court erred in giving judgment for the defendant on the ground that the debt sued on was barred by the limitation of five years (which had not been pleaded), yet if the record shows that the claim was in fact barred by the ten-year limitation, as pleaded, the judgment will be affirmed.</p>

- — IIon. Ben. E. Turner, Judge. If defendant did employ tlie plaintiff in such, a way as not to bind the board he is personally liable — even if he intended to, of which there is no evidence. “In the absence of charter restrictions the power of a corporation to make contracts is usually measured by the general objects and purposes of the corporation. ’ ’ Kitchen v. Railroad, 59 Mo. 544 and 517.

— Hon. Ben. E. Turner, Judge. A growing annual crop produced by sowing, planting and reaping is not realty, and does not pass by a deed to the land. A distinction is made between grass, timber, etc., and. annual crops. The former are an interest in lands, the latter are chattels. At common law, a growing crop produced by labor and expense of the occupier of the lands, was, as the representative of that labor and expense, considered as an independent •chattel.

Louis City Circuit Court. — Hon. James A. Seddon, Judge. The court erred in the declaration of law, given of its own motion. The condition attached to the sale was utterly void as to defendant the Green Tree Brewing Company. R. S. sec. 2505 ; Cooler v. Johnson, 86 Mo.-538. There is a decided difference between a sale, with condition annexed, that the title shall remain in the vendor until the goods are paid for, and a sale for cash on delivery.

<p>Appeal from the Lewis Circuit Court.— Hon. Ben. E. Turner, Judge.</p> <p>The refusal of plaintiffs’ second declaration of law was manifest error. There was abundant evidence to support it and the statute expressly authorized it. Such record “shall be prima-facie evidence in all cases that all the necessary antecedent provisions have been complied with, and that the action of the 'commissioners of' highways, or other persons and officers in regard thereto, were regular in all respects.” 111. Road Law, Acts 1879, secs. 88 and 91, p. 277; HawJcins v. Galloway, 88 111. 155; ShinJde v. Magill, 58 111. 422. Plaintiffs were clearly entitled to their declaration of law number three. The mere fact that the road was opened in pursuance of an order of the commissioners of highways and that it has since been, and still is, used and traveled by the public as a highway raises the presumption that it was lawfully opened and is a legal road. Board ». People, 116 111. 446; Nealy n. Brown, 1 Gill, 10;- Eyman v. People, 1 Gill, 4; Railroad v. Alder, 56 111. 344; Railroad ■». Benton, 69 111. 174. The acceptance by Peyton of the damages awarded him for locating and opening the road over his land, and the delivering .of the road over by him to public use, will estop him from challenging either the validity or the regularity of the proceedings. Town v. Town, 29 111. 137 ; Kite v. Town, 80 111. 208 ; Hartshorn v. Patroff, 89 111. 509.</p> <p>If there was no lawful road established, then there could be no liability on the bond sued on by plaintiff. This question has virtually been passed on by the appellate court of the state of Illinois in the case of Peyton v. Shaw, 15 Brad. 197. One of the conditions of this bond is that the money to pay said damages should be placed in hands of 'commissioners before the final order opening said road should be made. There is no evidence whatever claiming that said commissioners ever-demanded the damages due John Peyton before they ordered said road opened.</p>

Louis City Circuit Coiort. — IIon. Daniel Dillon, Judge. Appellant was entitled to judgment upon its answer as garnishee. The answer, not having been excepted to or denied, must be taken as true. R. S., chap. 36, sec. 2535 ; Bell ,v. Strow, 59 Mo. 118 ; Holton v. Railroad, 50 Mo. 151 ; Bank v. Dillon, 75 Mo. 380. The answer set up the facts that garnishee was a foreign corporation, and that the debt, by the terms of the contract creating it, was payable in another state.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The instruction given by the court was not warranted by the facts and was not predicated upon the evidence in the case. Musick v. Railroad, 57 Mo. 134 ; Newell v. B. & I. Co., 5 Mo. App. 253 ; Skyles v. Bollman, 85 Mo. 35; Raysdon v. Trumbo, 52 Mo. 35 ; Budd v. HoffTieimer, 52 Mo. 297; White v. Chaney, 20 Mo. App. 389; Bank v. Overall, 16 Mo. App. 510.

Louis Qity Circuit Court —Hon. Shepard Barclay, Judge. The charter provides that the policy shall be void unless the assured states his true title in the application. Joseph Froehly insured the property as his, whereas it was not his, and in his application, which is part of the policy, stated his title to be in fee-simple, whereas he had no title in fee-simple or otherwise to the property insured.

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. The plaintiff subscribed for twenty shares of the proposed increase of stock, and without waiting until the entire amount was taken, or to see what the future action of the association might be, voluntarily paid the sum subscribed by him, and permitted the bank to hold out the money so.paid as part of its assets, and constituting part of its capital stock.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Daniel Dillon, Judge.</p> <p>[For points and authorities of counsel for the appellant, see the same in Sehierenberg v. Stephens, ante, p. 314].</p> <p>The evidence shows that respondent subscribed for ten shares of one hundred dollars each to an increase of capital stock of said bank, in the sum of two hundred thousand dollars ; until that amount was subscribed, paid in the hands of the bank, and certified and approved by the comptroller of the currency, his subscription was provisional and conditional. Thomp. on Liab. of Stockh. sec. 120; R. S. of Ú. S. 1878, sec. 5142,; Delano v. Butler, 118 U. S. 634; People v. Charleston, 5 S. C. 103 ; Curtis Bank, 144 Mass. 274; Haskell v. Worthington, 94 Mo. 560 ; Morawetz on Corp. sec. 57. The scheme of increase of capital having aborted by reason of the insolvency of the bank, and its consequent inability to perform its part of the contract, there was an entire failure of consideration, and respondent can recover. Mete, on Cont. 219 ; LoveTle v. Ins. Co., Ill TJ, S. 264 ; United States v. Behan, 110 TJ. S. 338; Morawetz on Corp. sec. 721; Spring Co. v. Knowlton, 103 TJ. S. 49. No de-facto increase can be made when the increase would be ultra vires. Scovil v. Thuger, 105 TJ. S. 143 ; Spring Co. v. Knowlton, 103 TJ. S. 49. Respondent was no party to the matter sought to be shown as an estoppel, and had no knowledge of it. Silence in the absence of knowledge will not work an estoppel. Martin v. Johnson, 23 Mo. App. 96 ; Frederick v. Railroad, 82 Mo. 402. The evidence shows that the money was received by the bank to be applied on a specified contract; that the bank regarded the money so received as a trust fund for that purpose ; it was then a trust fund, and although it had no ear-marks, and was mingled with other moneys of the bank, the receiver took the assets of the bank impressed with the trust. Perry on Trusts, sec. 82; Judy v. Bank, 81 Mo. 404; Harrison v. Smith, 83 Mo. 210 ; Stoller v. Coates, 88 Mo. 514 ; Bank v. Ins. Co., 104 TJ. S. .84. The receiver can deliver the special trust fund to the owners thereof. R. S. TJ. S. 1878, sec. 5228 ; Saddler v. Graham, 100 TJ. S. 699. The finding and judgment should be that the receiver receive the assets of the bank impressed with the trust in favor of respondent, and that he pay respondent’s claim in full out of the assets of said bank. R. S. TJ. S.' 1878, sec. 5228; Saddler v. Graham, 100 TJ. S. 699.</p>

Louis City Circuit Court. — Hon. Geoege W. Lubke, Judge. t “A right of set-off, perfect and available against the bank at the time of his appointment as receiver, is not affected by the bank’s insolvency.” Hade v. Me Vay, 31 Ohio St. 231, 238; Miner v. Miner, 8 Gratt. 1; Fry v. Evans, 8 Wend. 530 ; Merritt v. Seaman, 6 N. Y. 168; Jordan v. Bank, 74 N. Y. 467.

Louis City Circuit CoUrt. — Hon. James A. Seddon, Judge. The “national bank act,” in its provisions for winding tip the affairs of insolvent banks, requires that the assets shall be ratably distributed among the creditors, and that no creditor shall obtain any preference over others. R. S. U. S. secs. 5236, 5242; Irons v. Bank, 6 Bissel, 301, 306; Bank w. Price, 22 Fed. Rep. 697. The plaintiff was only a creditor of the bank.

Louis City Circuit Court. — Hon. George W. Liibke, Judge. Defendant’s motion to dismiss should have been sustained. The summons does not contain a description of the nature of the accident, as required by statute. R. S. 1879, sec. 2858 ; Hillv. Ore Co., 90 Mo. 105; Bradenburger v. Easley, 78 Mo. 660. The defendant’s objection to the introduction of any evidence under the petition because it fails to state a cause of action, should have prevailed.

<p>1. Practice, Trial: instruction for verdict. In a suit on account, if the only defense be payment and there is no substantial evidence in support of that defense, it is proper to instruct for a verdict in favor of the plaintiff.</p> <p>2. Promise: consideration. A promise by a creditor that he will give double credit for every payment thereafter made by his debtor is void, unless supported by a new consideration. And the fact that the debtor afterwards made all his purchases of the creditor, without being under obligation to do so, is not evidence of such consideration.</p>

Louis City Circuit Court. — How. James A. Seddon, Judge. The petition alleges a forfeiture which we are entitled to enforce in equity. Orr v. Zimmerman, 63 Mo. 72; Bispham’s Prin. Eq. 238; Broun v. Vandegrif t, 80 Pa. St. 148.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The court should have taken the case from the jury and given either an instruction for nonsuit at the end of the plaintiff’s case, or an instruction to find for defendant at the close of the evidence, because the trusses were of simple construction and necessarily safe if used with ordinary care ; and also, because however built, they were open to the observation, and within the daily view of the plaintiff, and,…

Louis City Circuit Court. — Hon. George W. Lubke, Judge. The plaintiffs having consented by the supplemental lease to the alteration made in the leased premises by the defendant’s assignor, have no claim for damages on account thereof. The defendant is trustee for those persons who were creditors of the assignor at the date of the assignment, and the funds in his hands are subject to the claims of those persons only. Hulse v. Marshall, 9 Mo. App. 148 ; In re Adams, 67 How.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Shepard Barclay, Judge.</p> <p>The instruction for a non-suit should have been given : Because the evidence did not. show that the act complained of was within the scope of the brakeman’s authority. Marion v. Railroad, 8 A. & E. Ry. Cas. 178 ; Coal Co. v. Herman, 88 Pa. St. 419 ; Eaton v. Railroad, 57 N. Y. 382 ; Robertson n. 'Railroad, 22 Barb. 91; Whitehead v. Railroad, 22 Mo. App. 63 ;■ Snyder v. Railroad, 60 Mo. 419 ; McKeon v. Railroad, 42 Mo. 87 ; Jaclcson v. Railroad, 87 Mo. 431; DeCamp n. Railroad, 12 la. 348 ; Railroad v. Downey, 18 111. 260. The very appellation by which this class of servants is designated repels the implication of any such authority. Their duty, as their name imports, is to attend to the brakes. Instruction number one given by the court of its own motion ¿s erroneous, because it authorizes the- jury to determine whether defendant’s brakeman was “ engaged at the time in the control and running of the train” without a word of evidence on which to base such a finding. Goal Go. ro. Heeman, 86 Pa. St. 419. And in the latter clause thereof assumes that the brakeman had the authority to eject plaintiff’s son from the train and was under a legal obligation to exercise ordinary care in so doing.</p> <p>The only point made by the appellant is that £ £ the evidence did not show that the act complained of was within the scope of the brakeman’s duties.” “Their duties, as their name imports, is to attend to the brakes. The conductor, if any person, is-the agent to whom this duty is assigned, and the evidence shows that there was one such on this train.” Now, freight trains do not earry passengers, and a conductor on a freight train has nothing to do with passengers. The court below instructed the jury that if the train was a freight train, “then the plaintiff’s son had no right to ride thereon, with or without the consent or sufferance of the employes of the defendant in charge of the train.” A conductor on a freight train would have no greater right to remove a passenger,'or a trespasser, than a brakeman. If the conductor can the brakeman can. Brown v. Railroad, 66 Mo. 588; Perlcins v. Railroad, 55 Mo. 212 ; Isabel v. Railroad, 60 Mo. 480 ; Hieles v. Railroad, 64 Mo. 430 ; Lillis v. Railroad, 64 Mo. 475. Now, there is no distinction made by our supreme court between the conductor of a train and any other employe engaged in the control and running of the train. The statute giving-conductors the right to expel passengers is “if any passenger shall refuse to pay his fare, or shall behave in an offensive manner, or by repeated violation of the rules of the company, it shall be lawful for the conductor of the train and servants of the corporation to put him off,” etc. Here the statute uses the general term, “ servants of the corporation.”' Perkins v. Railroad, 55 Mo. 214.</p>

<p>Judgment: not appealed erom : execution. When a judgment is rendered against several defendants and one of them does not appeal, execution may issue against such non-appealing defendant, and it will not be error for the court to refuse to recall it.</p>

Circuit Court. — Hon. E. L. Edwards, Judge. The case is stated in the opinion. (1) The construction of a contract should be liberal. Unless an agreement be manifestly intended to be frivolous or inconsistent, it should be so construed as to give it some effect, for the parties must be supposed to have intended something by their agreement. Story on’ Cont. [5 Ed.] secs. 781, 783; Chi tty on Cont. 79; Thrall v. Newell, 19 Yt. 202.

— Hon. E. L. Edwards, Judge. Statement of case by tlie court. Peter, Louis and Herman Hinken, on the second day of June, 1883, executed their promissory note to one Ira Durand for three hundred dollars. On the sixth day of June, 1883, Judson McBoyd, the defendant herein, instituted a suit by attachment against said Ira Durand, and summoned as garnishees, the makers of the note. Durand appeared and answered in the attachment suit.

— Hon. Turner A. Gill, Judge. . The case is stated in the opinion. (1) Elkins (or his estate) has no standing in court to complain as to the application made by plaintiffs of the money sent to them by Hitt. It was not Elkins’ ■money. It was Hitt’s, and if he chose to acquiesce in, ■ or not complain at the application thereof made by plaintiffs, then what status or standing does Elkins have to complain ?

— Hon. M. G-.' McGregor, Judge. The case is stated in the opinion. (1) Oral testimony as to the assignment of the account was inadmissible. Witness Bailey testified that the only assignment was in writing on the account, but this assignment was not introduced in evidence.

— Hon. George -H. Burckhartt, Judge. The case is stated in the opinion. (1) Appellant relies for reversal on the following points, to-wit: (a) The petition is so inexplicit as that appellant could not gather from it in what the negligence consisted on which appellee relied to make out his case, and no evidence should have been allowed introduced against defendant’s objections.

— Hon. E. L. Edwards, Judge. The case is stated in the opinion. (1) This rent was not due until the crop had matured, and this was after the trustee’s sale and purchase by the defendant. Ridgeley v. Stillwell, 27 Mo. 128; Burgee v. Turner, 20 Mo. App. 34 ; Yegely v. Robinson, 20 Mo. App. 199. (2) The sale by the trustee, on September 3, 1887, extinguished the tenancy, and defendant having purchased Elliott’s land, can plead his purchase in bar.

— Hon. James MSandusky, Judge. ■ The case is stated in the opinion. (1) After the assignment of the lease McCartney’s liability for the rent (if liable at all) was a collateral liability, made so by the terms of the lease. Bank ». Shine, 48 Mo. 468; Allen v. Bank, 4 Mo. App. 66 ; Shine v. Bank, 70 Mo. 624. The liability of the assignees Longmore and Maupin for the payment of rent to plaintiffs was direct. Smith v. Bunker, 17 Mo. 148 ; 2 Taylor on Land, and Ten. [8 Ed.] 1.

— Hon. M. Gr. McG-regor, Judge. The case is stated in the opinion. (1) The principle is well established that the purchaser of mortgaged premises at the trustee’s sale under a deed of trust is entitled to the crops growing at the time of the sale and delivery of the trustee’s deed to him in preference to the mortgagors or any one claiming under them whose claim originated subsequent to the mortgage. 2 Jones on Mort. sec. 1658.

<p>Appeal from Pettis Circuit Court. — Hon. Richaed Field, Judge.</p> <p>The case is stated in the opinion.</p> <p>(1) It was error to overrule defendant’s demurrer to the plaintiff’s evidence. Plaintiff’s own statement showed him guilty of such contributory negligence as precluded a recovery. Notices as required by the statute were posted inside the car and on the door forbidding passengers to stand on the platform. R. S. 1879, sec. 800 ; Lindsey v. Railroad, 18 Am. and Eng. Ry. Cases, 179 ; 2 Rorer on Railways, 1103 and authorities cited; Railroad v. Hawk, 72 Ala. 112 ; Higgins v. Railroad, 2 Bosw. [N. Y.j 133 ; Railroad v. Hoosey, 6 Am. and Eng. Ry. Cases, 454, and note 460 ; Gerstle v. Railroad, 23 Mo. App. 361; Bou v. Railroad, 56 Iowa, 669. (2) Plaintiff’s first instruction should not have been given. It is the mere statement of a general legal proposition, having no connection with, or bearing upon the case, and is plainly misleading. Benson v. Railroad, 78 Mo. 504, 513; Henry v. Rice, 18 Mo. App. 497. (3) Plaintiff’s second instruction is erroneous. It is uncertain, misleading and prejudicial to the defendant. It tells the jury in general terms that if, after plaintiff got out onto the platform of the car, “ the defendant, through its agents and servants, so carelessly and negligently ran and managed its said train so as to throw plaintiff off of the platform,” they should find for the plaintiff, (a) The issue made by the pleadings is whether there was a jerk or jar, which caused the accident. This instruction enlarges this issue to any negligent act, and is for that reason erroneous. Bank'd. Murdock, 62 Mo. 70, 74]; Stormsv. White, 23 Mo. App. 31; Waldhier v. Railroad, 71 Mo. 514. (To ) The general language used only requires the jury to come to a conclusion, without finding the facts on which to base it. The instruction should have required the jury to find that the car was negligently jerked or jarred and plaintiff thereby thrown off. (c) It also requires the jury to find upon a mixed question of law and fact, viz., that the plaintiff was thrown off the car by some act, not stated in the instruction, and that such act was negligent, without stating or defining what would constitute negligence with reference to such act. (4) The court erred in inserting in defendant’s second instruction the words “without the fault or negligence of defendant.” If the plaintiff being on the platform of the car directly contributed to his own injury, he cannot recover, although the defendant may have been guilty of fault or negligence also. And under Revised Statutes 1878, sec. 800, it was negligence, per se, for plaintiff to stand on the platform, whilst the train was in motion. All the cases so hold. (5) The verdict is so clearly against the evidence as to evince passion or prejudice on the part of the jury, or a failure to comprehend the instruction of the court, and should be set aside. Railroad v. Williams, 7 S. W. Rep. 88.</p> <p>(1) The court did not err in overruling defendant’ s demurrer to the evidence. Boss v. Railroad, 59 Mo. 27 ; Waller v. Railrord, 88 Mo. 608 ; Leslie v. Railroad, 88 Mo. 350; Taylor v. Railroad, 26 Mo. App. 336 ; Brown v. Railroad, 31 Mo. App. 675. ( 2) Contributory negligence, to be made available as a defense, should be pleaded. Horthrup v. Ins. Oo., 47 Mo. 444; Thompson r>. Railroad, 51 Mo. 190 ; Harrison v. Railroad, 74 Mo. 369 ; 2 Thomp. on Neg. 1253; Bonovan v. Railroad, 89 Mo. 147; Brown v. Railroad, 31 Mo. App. 675 ; McGee v. Railroad, 92 Mo. 218 ; Beach on Con. Neg. 173. (3) The presumption of law is, that the plaintiff was in the exercise of due care. Buesching v. Gas Oo., 73 Mo. 233 ; Flynn v. Railroad, 78 Mo. 212 ; O’ Connor v. Railroad, 94 Mo. 150. (4) The court cannot decide, under the facts and circumstances of this case, that the plaintiff was guilty of contributory negligence. Boss v. Railroad, 59 Mo.. 27; Straus o. Railroad, 75 Mo. 185 ; Stroms v. Railroad, 86 Mo. 422 ; Waller v. Railroad, 83 Mo. 608; Leslie v. Railroad, 88 Mo. 50; Taylor v. Railroad, 26 Mo. App. 336 ; Gerstle v. Railroad, 23 Mo. App. 361; Burns v. Railroad, 50 Mo. 139 ; Maguire v. Railroad, 115 Mass. 239. (5) As to instructions on the part of plaintiff. The first instruction is sustained by case of Leslie v. Railroad, 88 Mo. 50, and the second is in conformity to the facts and circumstances of the case. Brown v. Railroad, 31 Mo. App. 675.</p>

— Hon. C. W. Sloan, Judge. The case is stated in the opinion. The court should have sustained defendant’s objection to the introduction of any testimony on the statement because it is insufficient, and the evidence does not support it, neither is it a sufficient “ statement of the facts constituting the cause of action.” R. S., sec. 2851; Butts v. Phelps, 79 Mo. 302 ; Watkins v. Donnelly, 88 Mo. 322, and cases cited ; Rosenburg v. Boyd, 14 Mo.

- — Hon. C. W. Sloan, Judge. The case is stated in the opinion. (1) Defendant’s objection to the introduction of any evidence, and its motion in arrest, should have been sustained. There was no allegation in the petition, or proof at the trial that Charles Burton was plaintiff’s servant. Bunn v. Railroad, 21 Mo. App. 188 ; Hall v. Hollander, 4 Barn. & Cress. 660.

— Hon. E. L. Edwards, Judge. The case is stated in the opinion. (1) The cause of action stated in the original complaint filed before the justice, was for “use and occupation.” It in no manner showed that the relation of landlord and tenant existed.

— Hon. M. G. McGregor, Judge. The case is stated in tfie opinion. Held: or even intimated, that the action of the circuit court,. in vacating or affirming an award of arbitrators, cannot be reviewed by the appellate court unless a motion for new trial was made.

— Hon. Charles W. Sloan, Judge. The case is stated in the opinion. (1) The petition does not state, nor the evidence disclose, a cause of action in favor of plaintiff.

— Hon. Turner A. Gill, Judge. Certified to Supreme Court. Statement of case by the court. ■ This is an action upon special tax bills issued for the grading of May street, in Kansas City, from Sixth to Ninth streets. The plaintiff did the work under a contract with the city, and seeks to enforce the lien of the bills against the real estate of defendants.

— Hon. Chas. W. Sloan, Judge. The case is stated in the opinion. There are four grounds for complaining of the errors alleged, namely: (1) On the testimony of all the witnesses, those of plaintiff as well as those of defendant, the fence complained of was a lawful fence. R. S. 1879, secs. 809, 5651, 5652]; Acts 1885, p. 166 ; Acts 1887, p. 194 ; Sedg. on Const. Stat. Law [2 Ed.] 212, 214, 229 ; Parrish v. Railroad, 63 Mo. 286.

— Hon. Rioiiard Field, Judge. The case is stated in the opinion. (1) The trustee in a deed of trust of personal property may sue and recover the possession of the said property. Keck v. Fisher, 58 Mo. 532. (2) Dill, the defendant, having wilfully and wrongfully mixed the mortgaged wheat with his own wheat, the plaintiff was entitled to all the wheat in the bins where the mortgaged wheat was so mixed. Dams v. Krum, 12 Mo. App. 279 ; Franklin v. Gummersell, 9 Mo.

— Hon. Richard Field, Judge.' The case is stated in the opinion. In State ex rel. v. Police Commissioners, 16 Mo. App. 48, the practice was exactly the same as in this case. The “petition” or application for prohibition being filed ‘ ‘ the defendants demurred generally to this petition and the demurrer was sustained.” This was in the circuit court. An appeal was taken and entertained by court of appeals without doubt or question. See also State ex rel. ■».

— Hon. D. C. Babnett, Special Judge. The case is stated in the opinion. (1) Neither the principal in the bond nor the sureties being in court, when forfeiture of the bond was taken, the entry of forfeiture thereof, nor the recitals therein, were competent evidence against the sureties; and the court erred in admitting the same in evidence against these defendants.

— Hon. Gf. D. Burgess, Judge. (1) Replevin may be maintained to recover boards ■or lumber sawed from logs wrongfully cut and taken from lands belonging to another. Wingate v. Smith, '20 Me. 287 ; Wells on Rep. p. 52, secs. 82, 83, 84, 86 ; Schelenberg & Belcher v. Campbell, 14 Mo. 491, 492; Society v. Fleming, 79 Am. Dec. 511; Horton v. Horton, 53 Am. Dec. 612 ; Herdict v. Young, 55 Pa.

— Hon. Charles W. Sloan, Judge. Tlie case is sufficiently stated in the opinion of the court. (1) The board of regents of the state normal schools are state officers within the meaning of the constitution. State ex rel. v. Dillon, 90 Mo. 229 ; State ex rel. v. Valle, 41 Mo. 29 ; State ex rel. x. McKee, 69 Mo. 308.

— Hon. E. L. Edwards, Judge. Statement of case by the court. Held: unless the statute is susceptible of no other construction, that the parties cannot waive the provisions of the sections in reference to the building of division fences, and treat as a partition fence one jointly erected by them, but to bring themselves within the terms of section 5661, and also of section 5762, in reference to…

— Hon. Richard Field, Judge. The case is stated in tlie opinion. (1) The road, as originally established by user, could not be lost by the statute of limitations, because it does not apply to any land appropriated to any public use. B. S. 1879, sec. 3227; Burch v. Winston, 57 Mo. 62.

— Hon. E. M. Hughes, Judge. Statement of case by the court. Held: that while the new schoolhouse was built without authority of law, plaintiffs were not entitled to relief on account of the length of time they had delayed instituting their suit. Plaintiffs’ bill was dismissed, and after an unsuccessful motion for a new trial, they appealed to this court.

G. D. Burgess. Judge. The case is stated in the opinion. (1) The payment of the debt by Johnso’n subrogated him to the rights of the county, or in other words, the payment operated to assign the debt of the county to him. Pomeroy’s Equity, secs. 798, 1211, 12.13; Liderdale v. Robinson, 2 Brock. 168; Crosby v. Taylor, 15 Gray [Mass.] 64; Neeley v. Jones, 37 Am. Hep. 794.

— Hon. Richard Field, Judge. The case is stated in the opinion. (1) The court erred in giving plaintiff’s instruction number one. (a) Because there was no evidence to sustain it. (5) Because it entirely ignored the evidence of Henry Jacoby, plaintiff’s witness, which was to the effect that plaintiff could only get her pay for board upon orders signed by Igo.

— Hon. Gt. D. Burgess, Judge. The case is stated in the opinion. (1) While the railroad company was authorized to construct its railroad over and across the public road in question so as not to obstruct the same, yet it was not, and is not authorized to obstruct it by building fences along the right of way of the company, across such public road.

- — Hon. Richard Field, Judge. The case is stated in the opinion.

— Hon. E. L. Edwards, Judge. The case is stated in the opinion. (1) The court erred in giving instruction numbered two, asked by plaintiff, (a) It singles out evidence from the mass of testimony and instructs the jury as to what conclusions follow, which is error. Pourcelly v. Lewis, 8 Mo. App. 593 ; Kendig v. Railroad, 79 Mo. 207.

— Hon. Richard Field, Judge. The case is stated in the opinion. (1) The .court erred in giving plaintiff’s third instruction, which told the jury that plaintiff’s measure of damages is the value of the property he traded and the amount of the note he gave, amounting .together to two thousand dollars, with six per cent, .interest from the sixteenth day of October, 1884, to date. Anslyn ■». Frank, 8 Mo. App. 242; Stiles v. White, 8 Mo. 356.

— Hon. Turner A. G-ill, Judge. Statement of case by the court. This was an action by plaintiffs on special tax bills issued in their favor by the City of Kansas for the cost of paving Grand avenue, one of the streets of said city. The questions for determination here grew out of the action of the circuit court in striking out of the answer certain special defenses set up therein.

- — IIon. Andrew Ellison, Judge. The case is stated in the opinion. (1) The distinction between demands or rights of action which are single and entire and those which are several and distinct is that the former immediately arise ont of one and the same act and the latter out of different acts and contracts. Secor v. Sturgis, 16 N. Y. 548 ; Wagner v. Jacoby, 26 Mo. 532; Flaherty n. Taylor, 35 Mo. 447; Trans. Co. v. Trabue, 63 Mo. 355; Peiffer ¶. Suss, 73 Mo. 245.

— Hon. Richard Field, Judge. Statement of case by the court.

<p>Case Adjudged. The election in this case held to be void, because the publishing of election notice did not comply with the requirements of the statute (“ Local Option Law,” Laws of Mo. 1887, p. 179), as heretofore held by this court in State ex ret. v. Tueker, ante, p. 620.</p>

—Hon. GK D. Burgess, Judge. The case is stated in the opinion. (1) There was no evidence in the cause to support the verdict. Moore v. Railroad, 28 Mo. App. 622 ; Ehret v. Railroad, 20 Mo. App. 251. (2) The court gave improper and refused proper instructions. As to the improper instructions given: White v. Chaney, 20 Mo. App. 389 ; Lester v. Railroad, 60 Mo. 268; Benson v. Railroad, 78 Mo. 504.

— Hon. M. G. McGregor, Judge. Tbe case is stated in the opinion.

— Hon. Richard Field, Judge. Statement of case by the court. This was an action by the plaintiff, a corporation under the laws of Michigan, upon a promissory note executed by defendant together with Ellis J. Pursell and R. R. Henderson.

<p>1. Pleading : petition. A petition sufficiently states a cause of action, when its averments of specific acts of negligence done by defendant are followed by a general statement of injuries resulting to the plaintiff from such acts.</p> <p>3. Damages: negligence. An action for negligence cannot be maintained, unless it he shown that there was a causal connection between the act of negligence and the injury sustained ; which connection may be established by inferential evidence. Whether a given act be remote or proximate in the chain of causation is generally a question of law for the court. But it would not be proper to take that question from the jury, unless the connection between the negligence and the injury were so remote as to leave no possible ground for a fair-minded opinion that the negligence was the natural cause of the injury.</p> <p>3. Damages : negligence : violation oe municipal . ordinance : causal connection. Where a standing freight train of the defendant’s, in violation of city ordinances, was extended for several blocks along a public street, and so as to obstruct a cross-street used by the plaintiff in passing from his residence to his working place, and the plaintiff in so passing found it necessary to cross over the cars; and while he was in the act of so doing, the train was suddenly backed, with the effect of inflicting a permanent injury on the plaintiff; these facts do not fail to show an actionable causal connection between .'the defendant’s unlawful blocking of the street and the injury suffered by the plaintiff while attempting a lawful use of the highway. The plaintiff cannot be regarded as a trespasser, or as chargeable with contributory negligence as a matter of law; nor can it be claimed that the defendant was under no duty to him until after its discovery of his dangerous position.</p> <p>4. Contributory Negligence : burden of proof. The burden of proof on the question of contributory negligence on the part of the plaintiff in causing an injury to him, lies with the defendant, and cannot be shifted to the plaintiff by a denial of the plaintiff ’s allegation that the injury occurred without fault on his part.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. James A. Seddon, Judge.</p> <p>'he circuit court erred in refusing to give the jury the following instruction, asked by appellant: “The court instructs the jury that a passenger has no right to expose a carrier, operating a sleeping car, in which he travels, to extraordinary liability, and that if he undertakes a journey which would require an amount of money for travelling expenses larger than a reasonably prudent man would ordinarily carry upon his person under such circumstances, it would be his duty to convert the excess thereof into drafts, certified checks or letters of credit, or some form other than currency.” Root v. Sleeping Car Co., 28 Mo. App. 199 ; Blum v. Pullman Co., 3 Cent. L. J. 591. Theverdictin this case is excessive, irrespective of what may be found by this court to be plaintiff’s “destination,” in legal contemplation. That plaintiff was only entitled to recover reasonable travelling expenses to destination was conceded. What was his destination, and what such reasonable travelling expenses would amount to, were in dispute. We repeat, then, that if plaintiff’s destination be regarded as Benton, Ark., or even beyond, the verdict should have been for nominal damages only, owing to the utter failure to introduce any proof from which the damages could be computed with ordinary certainty ; that if the destination be regarded as St. Louis, the ver- ' diet should have been for the defendant; and that in any view of the case the amount of the verdict, considered in the light of the law as stated in instruction number six asked by defendant and given by the court, is grossly excessive. Root v. Sleeping Oar Co., 28 Mo. App. 199; Blum v. Bul. Co., Flipp. U. S. C. C. 500; Thompson’s Car. of Pass. 511.</p>