Volume 33 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. The assignment of the Zephyr Manufacturing Company to W. H. Turner was not in issue. Ragland v. Ragland, 5 Mo. 54. In Missouri no formal assignment of an account is necessary. An act showing an intent to transfer the party’s interest is sufficient for that purpose.

<p>1. Instructions: exemplary damages. It is error to instruct for exemplary damages when there is no violence, malice, oppression or wanton recklessness mingled in the controversy, nor anything in the act complained of partaking of a criminal or wanton nature.</p> <p>2. Practices instructions. Objections to an instruction .given by the court in modification of one asked for by the plaintiff, are properly saved in the motion for a new trial by a complaint that the court erred in its instructions for the plaintiff.</p>

Louis City Circuit Court. — Hon. James A. Seddon, Judge. There was no debt due to the judgment debtor from the garnishee, and hence the creditor can recover nothing. Drake on Attachment, secs. 445, 458 ; Wentworth n. Whittemore, 1 Mass. 471; Sayward v. Drew, 6 Maine, 263. The garnishee stands in precisely the same position he would if he were sued by the debtor. Drake on Attach, sec. 445. The debt must be actually due and not dependent on any contingency. Wentworth «.

<p>Appeal from the St. Louis City Circuit Court. — Hon. James A. Seddon, Judge.</p> <p>The trial court had no jurisdiction. The plaintiffs failed to allege that before instituting the suit they filed a notice in the office of the clerk of the circuit court, stating the time when, and the justice before whom, they would institute the suit. Ewing v. Donnelly, 20 Mo. App. 6. The lien statement was improperly admitted in evidence, because it was not such as required by law in this, that it pretended to claim a lien upon two distinct lots, and the houses thereon, without showing whether they were built together or separate, or whether each occupied a separate lot, or each occupied a part of the two lots. It is inconsistent with the notice of demand served on Mueller in this, that in the demand notice, Conrad Kaiser is charged with being thp contractor for the erection of the houses, and in the lien statement he is charged as being a sub-contractor. It does not comply with the statute, as it omits to state that the account filed is a just and true account, after all just credits have been given. The instruction in the nature of a demurrer should have been given, if for no other reason, because it was perfectly clear from the undisputed testimony of plaintiff and his witness, Kaiser, that he had knowingly included in his account, filed for a lien, a demand for ten bushels of lime, which he knew, both from his own personal inspection, as well as the statement of his debtor, that it did not enter into the construction of the building, but went to waste, and included a bill for the article sold to replace the lost lime. Gauss v. Hussman, 22 Mo. App. 115; Henry v. MaTione, 23 Mo. App. 83; Miller ». Hoffman, 26 Mo. App. 199. It was error to exclude testimony tending to show that Mueller had paid to artisans, materialmen and sub-contractors, an amount in excess of his contract with Meisch. Garnett v. Berry, 3 Mo. App. 197; Henry v. Bice, 18 Mo. App. 497. The instruction prayed for by the defendant (if it was proper to submit the question to the jury at all) presented the proper issue, to-wit, that if plaintiffs filed an account with their lien claim, which they knew at the time of so filing includitems which did not enter into the construction of the building, they should find for defendant; but the instructions given by the court contained the error of requiring the jury to further find that this “ was not the result of an honest mistake, but intentional,” in other words must have been done with intent to defraud Mueller.</p> <p>The statement filed before the justice expressly avers ¿he filing on the twenty-third day of June, 1887, of the notice of the place and time of bringing such suit. The suit was brought June 24, 1887, the day named in such notice. It would seem unnecessary to aver that the twenty-third day of June transpired prior to the twenty-fourth day of the same month. It does not appear that such notice was filed before the lien claim. The fact.that it was filed with or at the time of the filing of the lien claim or on the same day is immaterial. The language of the lien claim bears no such construction as contended for by appellant in the first branch of his second point. The plain, ordinary and logical meaning of the clause describing the two buildings, their location, is that the two houses were separate and on contiguous lots. Section 3190, Revised Statutes, fixes the requisites of the notice to be given to the owner before filing lien. The notice here strictly complies therewith. The statute (sec. 3176) does not require in the lien statement an, express averment that all just credits have been given. The statute provides that a just and true account of the demand after all just credits have been given shall be filed. But it does not require that the lienor shall expressly state that he has done so. As to the inclusion in the bill of the eight and two bushels supplied in consequence of the breaking of a mortar-box, respondents urge that the inclusion of such items, does not vitiate the lien as to the remaining items under the authority of Pullis v. Hoffman, 38 Mo. App. 666, 671; Johnson v. Building Co., 23 Mo. App. 549 ; Allen v. Mining Go., 73 Mo. 688, 692. The objectionable items are distinct and separable from the remaining items, and were so separated and excluded by the jury in their verdict. It is not necessary to here discuss the question, considered by the Kansas City court of appeals in the case of Henry ¶. Bice, 18 Mo. App. 497, cited by appellant in his fifth point. Appellant in his offer of proof wholly fails to bring his case within the doctrine of Henry v. Bice. The offer nowhere proposes to show that the payments alleged to have been made by Mueller were in good faith, nor does it show that they were made without knowledge of the demand here in question.</p>

<p>1. Meebanic’s Lien: notice. A notice of suit on a mechanic’s lien before a justice of the peace sufficiently complies with the statute in giving the name of the justice in full, without adding his local address. A notice is properly signed by the plaintiff’s agent or attorney, as such.</p> <p>2. Mechanic's Lien: statement. A statement claiming a lien on two buildings erected on lots 26 and 27, and describing them as having a front of one hundred and twenty feet, “the south line being two hundred and sixty-four feet north of Fountain,” sufficiently shows that the lots are contiguous, and complies with section 3195, Revised Statutes.</p>

<p>Appeal from the Scotland Circuit Court. — Hon. Ben. E. Turner, Judge.</p> <p>We take the position that although no affidavit in appeal had in the first instance been filed, it was a failure to prosecute the appeal and a breach of the condition of the appeal-bond, for the defendant Wm. Hull, when the motion to dismiss his appeal was pending, not to have then filed his affidavit, because had he then filed it the appeal could not have been dismissed. R. S., 1879, sec. 3053. It was the duty of the defendant Wm. Hull to have filed the affidavit; the appeal was granted and if the appellate court acquired jurisdiction then the action will lie. Lanius v. Cole, 51 Mo. 147.</p> <p>The court having adjudged, on motion by appellants, that respondent Hull had failed to file an affidavit for appeal with the justice, such judgment was res judicata of the fact, and they are now estopped from asserting that- the affidavit had been duly sworn to by him, and the officer had simply failed and neglected to sign the jurat. Buchanan v. Smith, 75 Mo. 463; Kennedy v. Bambrick, 20 Mo. App. 630; Herman’s Law of Estoppel, p. 10, .sec. .20; Id. p. 544, sec. 586. The justice of the peace having improperly granted an appeal without an affidavit for an' appeal having first been filed, no jurisdiction of the cause was conferred upon the circuit court and the appeal-bond was void. Adams n. Wilson, 10 Mo. 341; Garnet v. Rodgers, 52 Mo. 145 ; Smith ■». Railroad, 53 Mo. 338 ; Brown ». Railroad, 25 Mo. 123; Móore v. Daman, 4 Mo. App. Ill; Hussey v. Heitkamp, 9 Mo. App. 36.</p>

<p>1. New Trial: newly-disco.vered evidence. When it appears from the affidavits filed in support of the defendant’s motion for a new trial, on the ground of newly-discovered evidence, that the newly-discovered witness was manager of the work constituting the subject-matter of the suit, and presumably familiar with the facts chiefly in controversy, that when the nature of his testimony was ascertained, he was found still residing in the same county where the work was done ; and when it is not shown that the witness had not resided in the same county a sufficient time for the taking of his deposition before the trial, or that any inquiry had been previously made for the purpose of learning his whereabouts, there is no sufficient showing of diligence on the part of the applicant to justify the granting of a new trial on the ground claimed.</p> <p>2. Justices’ Courts: statement. A statement filed with a justice of the peace is sufficient, when it is plain enough to identify the action so as to bar another action for the same subject.</p>

<p>Justices’ Courts : amendment. In a case brought by appeal from a justice’s court, there is no error in allowing the plaintiff to amend in the circuit court, when it is apparent that the item or cause of action introduced by the amended statement was intended to be embraced in the original statement.</p>

<p>Practice, Trial: witness. "Where the deposition of one party to a suit is taken in his own behalf, and he afterwards dies before the trial, the other party will be a competent witness as to such matters only as were testified to in the deposition, and this whether the deposition be or be not previously offered in evidence by either party.</p>

<p>Appeal from the Scotland Circuit Court. — Hon. Ben. E. Turnee, Judge.</p> <p>The court erred in overruling plaintiff’s application for continuance. It was in substantial compliance with section 2718, chapter 40, Revised Statutes, 1879.</p>

<p>Life Insurance: surviving beneficiary. A policy was issued assuring the life of S. for the benefit of -his wife and children, for the term of his natural life. The policy provided: “In case of the death of the said beneficiary before the death of the person whose life is assured, the amount of the assurance shall be paid at maturity to the heirs or assigns of the said person whose life is assured.” The person assured died, leaving the widow beneficiary, but no living children or other descendants. Held that the widow was entitled to recover in her own right the full amount of the benefit provided for by the policy.</p>

<p>Appeal from, the St. Louis City Circuit Court. — Bon. Shepard Barclay, Judge.</p> <p>The writing signed by Klasing did not entitle plaintiffs to the property as owners. It expressly recites that it is intended merely by way of security. It is not good as a mortgage, even though called to defendant’s notice before the levy, because not recorded. R. S. sec. 2503 ; Bevans v. Bolton, 31 Mo. 437; Wilson v. Milligan, 75 Mo. 41; Hughes v. Menefee, 29 Mo. App. 192. Plaintiffs were not entitled to the butter from defendant upon the production of the writing. Defendant held it as Klasing’s bailee, and could only surrender it upon Klasing’s order, or to Klásing’s vendee or assignee. The writing was neither a direction by Klasing to defendant nor a bill of sale. It was an informal mortgage. Plaintiffs having filed a sworn claim with the sheriff, alleging their interest to be that of “mortgagees,” and having thereby induced defendant, on the theory that they had stated their interest truly, to hold the butter under its levy, are now estopped from recovering as owners.</p> <p>No instructions having been asked or given, this court cannot interfere with the trial court in its finding of the facts, or pass upon the weight of the evidence, Rothschild v. Railroad, 92. Mo. 91. And there is nothing for this court to review, but if it could review the finding and pass upon the weight of evidence, the finding is correct. The transfer of the butter in this case was made to secure an indebtedness then due and payable, and no extension of the time for payment was made. This transfer, not being under seal, is not technically a mortgage, but is like one after condition broken, in some respects, and in other respects, like a sale. After condition broken, the mortgagee is the legal owner of mortgaged chattels and the mortgagor’s equity of redemption therein .is not subject to levy and sale (State to use v. Carroll, 24 Mo. App. 858), and the mortgagee may maintain an action of replevin, or for conversion of them. Hubbell v. Allen, 90 Mo. 574; McCandless v. Moore, 50 Mo. 511. As before seen, the transfer in this case was of the legal title to the property, the debt being past due, and it being in the hands of the appellant as bailee of the party who made the transfer, it immediately became the bailee of respondents, and its possession from that time until the conversion of the property was the possession of respondents. Erwin v. Arthur, 61 Mo. 386; Class v. Celvin, 80 Mo. 300. The statute requiring delivery, has no application in such cases. Worley ex rel. v. Watson, 22 Mo. App. 546. The case at bar is a much stronger one than that of Erwin v. Arthur, supra, as the bailee not only had notice of the transfer of the property which gave respondents possession of it, but agreed to surrender it to them, and afterwards converted it to its own use, facts sufficient to make it liable for vindictive damages if the statement had been framed so as to include them. The debt that this property was transferred to secure comprised its purchase price, as shown by the transfer and the other evidence and for which respondents had a lien on the property (R. S. 1879, sec. 2353); and having this lien on the property, there could be no fraud in the transfer, and the transfer would have been valid .without possession and the transfer was, under the circumstances, a transfer of the bare legal title and possession, respondents’ lien making them the substantial owners of it. This transfer bears a strong analogy to the transfer of a homestead in which there can be no fraud. Davis v. Land, 88 Mo. 436. The statute as to fraudulent conveyances (sec. 2505) requiring delivery, does not apply except in cases of subsequent creditors or purchasers. Worley ex rel. v. Watson, 22 Mo. App. 546; Tuft v. Thompson, 22 Mo. App. 564.</p>

Louis City Circuit Court. — Hon. Leroy B. Y allí ant, Judge. The doctrine laid down in Beeson v. Southard, 10 N. Y. (6 Seld.) 286, has been unhesitatingly followed. It was there held that “ in an action for malicious prosecution, the plaintiff must allege and prove both malice and want of probable cause for the former suit. If there was probable cause, the action cannot be maintained, even though the prosecution complained of was' malicious.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Shepabd Barclay, Judge.</p> <p>The court erred in admitting incompetent and irrelevant evidence offered by the plaintiff. Hipsley v. Railroad, 88 Mo. 351; Ely v. Railroad, 77 Mo. 34. The court erred in refusing the instruction, in the nature of a demurrer to the evidence, asked by the defendant at the close of plaintiff’s case. Railroad v. Houston, 95 U. S. 702; Cadstein v. Railroad, 46 Wis. 406; Achtenhagen v. City, 18 Wis. 331; Wilson v. City, 8 Allen, 138; Durgin v. City, 61 Barb. 427; Railroad v. Adams, 19 Am. & Eng. Ry. Cas. 380. The court erred in refusing to give proper and legal instructions asked by defendant. The court erred in giving illegal and improper instructions to the jury at the instance of plaintiff and of its own motion. Cathcart v. Railroad, 19 Mo. App. 114 ; Matthews v. Railroad, 26 Mo. App. 89 ; Stoher v. Railroad, 91 Mo. 509 ; Evans v. Railroad, 21 Mo. App. 656; Smotherman v. Railroad, 29 Mo. App. 268; Milburn v. Railroad, 86 Mo. 109 ; Davis v. Railroad, '89 Mo. 350; Union Pac. Railroad v. Adams, 19 Am. &. Eng. Ry. Cas. 378; Buesching v. Cas Co '. 73 Mo. 221; Nichols v. Winfrey, 79 Mo. 551; Evans v. Railroad, 16 Mo. App. 525; Railroad v. Houston, 95 U. S. 703.</p> <p>The plaintiff Eisenberg testified that he had driven along there and had rested his team without suffering mishap. In other words, the danger was unknown to the driver, i. e., the danger of his horse stalling and being dragged into the abyss. So it is submitted under the cases in Missouri, that the question as to whether the driver was using ordinary care was one for the jury. The property-owner who invites his patron to go over his grounds on business with him is bound to use ordinary care to have such grounds in a reasonably safe condition. Welch v. McAllister, 15 Mo. App. 492; Carraway v. Long, 7 Mo. App. 595. The traveler or invited person is not bound to leave the road because an excavation has / negligently been left open, unless it would be inconsistent with ordinary care to so use the road. Buesching ■o. Gas Co. 73 Mo. 232. And the traveler may recover, notwithstanding his knowledge of the nuisance providing he was exercising ordinary care. Smith v. City, 45 Mo. 449 ; Thompson on Neg. sec. 1203.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge.</p> <p>The attornment of the tenants to the representative of the defendant William Clark was fraudulent and void, and in nowise affected the possession of the landlord. R. S., secs. 3080, 3948 ; Schultz v. Arnot, 33 Mo. 172 ; McCartney v. Auer, 50 .Mo. 397; Bank n. damn, 60 Mo. 562 ; Rutherford v. Ullman, 42 Mo. 216; Dyer v. Baumeister, 87 Mo. 134. But the defendants in the two cases take the position that the attornment is valid, because “ a tenant may show that the title of his landlord has expired.” Supposing it to be the law that a tenant who has gone into possession under a defeasible title, may, under some circumstances, properly deny the continuation of the title, after its defeasance, the authorities are uniform that this can never be done in a way to operate as a fraud upon the landlord. 1 Wash-burn, chap. 10, sec. 8, par. 9.</p> <p>It is a familiar rule or canon of the law that “a tenant may not dispute his landlord’s title.” This phraseology is concise, but too comprehensive to be accurate, consequently the courts have declared that said rule as thus announced has certain limitations or qualifications, which are clearly defined and are now uniformly recognized as parts of the rule itself. Among these are the cases where the lessor’s title has expired or been extinguished since the tenancy began. Moffat v. Strong, 9 Bosworth, 57. . And in cases where there is a question or dispute as to the termination of the lessor’s title, the tenant, as defendant in an action for rent or possession, assumes the burden of proof in establishing such defense. 1 Washburn, sec. 8, pars. 6 and 8; Bigelow on Estoppel, 459, 464, 466; Herman on Estoppel, secs. 858, 867-8; Taylor’s Landlord and Tenant, sec. 708; 2 Smith’s Leading Cases, pt. 2, pp. 796 and 904; England v. Slade, 4 T. R. 682 (1792); Weave v. Moss, 1 Bing. 360 (1823); Higginbotham v. Barton, 11 A. & E. 307; Langford v. Selmes, 3 K. & J. 226; Blake v. Foster, 8 T. R. 487 (1800); Strode v. Seaton, 2 C. M. & R. 728; Jackson v. Bamsbotham, 3 M. & S. 515; Mountjoy v. Collier, 1 Ellis & B. 629 ; Jackson v. Bozo-land, 6 Wendell, 666 ; Jackson v. Davis, 5 Cowan, 124; Hilton v. Bender, 2 Hun, 1; O ’ Donnell v. McIntyre, 37 Hun, 623; Weichelbaum v. Curlett, 20 Kan. 709 ; Stout v. Morrill, 35 Iowa, 47; Lamsonv. Clark, 113 Mass. 348; Hilborn v. Fogg, 99 Mass. 11; Byder v. Mansel, 66 Maine, 167; Farris v. Houstozi, 74 Ala. 162 ; St. John v. Quitzow, 72 111. 334 ; Howell v. Ashmon, 22 N. J. L. 261; Bettison v. Budd, 17 Ark. 546; Wolf v. Johnson, 30 Miss. 513 ; McGuffie v. Carter, 42 ' Mich. 497; Pentz v. Kuester, 41 Mo. 447; Higgins v. Turner, 61 Mo. 249; Meier v. Thiemann, 15 Mo. 307; Fenner v. Duplock, 2 Bing. 10; Gregory v. Doidge, 3 Bing. 474.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge.</p> <p>In cases of disputed title it is not for the tenant to decide the conflicting claims, and throw the burden of suing in ejectment upon the party from whom he had possession. Dyer v. Krackauer, 14 Mo. App. 89. If Clark is am adverse claimant, such as he admits himself to. be by his answer, in the suit to quiet title, wherein ' does lie improve his situation by admitting the validity of plaintiffs’ title to a certain point or time ? The truth of the whole matter is, that the defendant Clark has attempted a fraud. Having bought'’ up some adverse claims to property of which the plaintiffs were in possession, he seeks to deprive plaintiffs of their attitude of defense, and force upon them the aggressive, by tampering with the tenants and getting a colorable attornment. Fraud runs through the whole transaction. It is the ruse or contrivance which is referred to in Dyer v. Krackauer, 14 Mo. App. 39, which attempts to change “the relation between contending parties so that the right or title to sue in ejectment shall be shifted.” If the defendant’s position was allowed to be maintained there would be nothing to prevent an unscrupulous person from taking any property by bribing the tenants to attorn. If information, therefore, comes to one that any property is defective in title, he could, by collusion with the tenants, obtain a foot-hold which he could not be deprived of. It was this very thing that the law proposed to obviate and prevent by the statute against fraudulent attornment.</p> <p>In order to maintain- the' action it was necessary that plaintiff should show that at the institution of the suit he was in actual possession of the premises. This was the only issue presented by the pleadings. The court by its judgment that plaintiffs take nothing in the suit against Brockmeyer necessarily found and determined that the relation of landlord and tenant had ceased to exist between the parties, and that consequently plaintiffs were no longer in possession through the tenants. If this court sustains said judgment an affirmance of this case follows as a natural consequence. In Dyer v. Baiomeister, 87 Mo. -134, the court says: “The design of the statute was to enable a party in actual possession of land, claiming it as his own, to compel a party out of possession, who also claimed to be the owner, to bring ejectment to settle the question between them. As is well said in case of Dyer v. Krackauer, 14 Mo. App. 39, “it should always be borne in mind that the statutory proceeding to quiet title was never intended as a substitute for the action of ejectment. It assumes that the complainant cannot -maintain ejectment because he already enjoys an exclusive and undisturbed possession. If, therefore,' so far as the claim of possession or the want of it is concerned, he might maintain ejectment against an adverse claimant," the statutory proceeding is not for him.” See also, Webb v. Donaldson, 60 Mo. 394 ; Babe v. Phelps, 65 Mo. 27; Murphy v. DeFrance, 23 Mo. App. 337.</p>

Louis City Circuit Court. — Hon. James A. Seddon, Judge. The quarry was not opened until the stone wras reached and quarried, which was two months after the dwelling-house on lot 2 was erected and occupied.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. Neither the justice nor the circuit court acquired jurisdiction of the debt due Pearce. The return of the constable on the writ of attachment does not show that he attached anything in garnishee’s hands. This is essential to a valid attachment. Horvell v. Porter, 62 Mo. 811; Keane v. Banking House, 4 Mo. App. 507; Brecht v. Qorby, 7 Mo. App. 300 ; Master son v. Railroad, 20 Mo. App. 655.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. The main objection is to the item of four hundred dollars, taxed as costs for the fee of the referee. This claim of four hundred dollars has no right to be considered costs and cannot be collected on execution.

Louis City Circuit Court. — Hon. G-eorge W. Lubke, Judge. The contract between plaintiff and defendant was an express contract, and the very matter in controversy was included therein. In such a case the law does not raise any implied obligation. A person cannot be bound by an implied contract, when he has made an express contract as to the same subject-matter. 1 Chitty on Contracts (11 Am. Ed.) 89; 2 Black. Com. *443; Suits v. Taylor, 20 Mo.

— Hon. Ben. E. Turner, Judge. We say that plaintiff’s action cannot be maintained under section 3921, Revised Statutes, because it is clearly shown by the evidence that defendant took no hay or other, thing except what belonged to him.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. If items for which the law gives a lien are mixed in and blended with others for which it gives no lien, so that it cannot be perceived froni the account what proportion is chargeable for each, the lien must fail. Edgar v. Salisbury, 17 Mo. 271; Kershaw v. Fitzpatrick, 3 Mo. App. 576 ; Kelson v. Withrow, 14 Mo. App. 270; Murphy v. Murphy, 22 Mo. App. 18; Gauss v. Hussmann, 22 Mo. App. 118 ; Schulenburg v..Hawley, 6 Mo.

■Appeal from the St. Louis City Circuit Court. — Hon. Shepard Barclay, Judge. The city of St. Louis has power by its charter to vacate streets and establish market-places. Scheme and Charter of St. Louis, chap. 26, sec. 2.

<p>Appeal from the St. Louis City Circuit Court. — IIon. Leroy B. Valliant, Judge.</p> <p>On plaintiff’s own showing, he had at best but a parol license to be on the defendant’s premises. A license is not an estate inland and may be revoked at any time by the owner of the fee. See Tiedeman on Real Prop., sec. 651 et seq.; See 1 Wash, on Real Prop., *397; Wood v. Leadbitter, 15 Mees. & W. 888; Desloge v. Pierce, 38 Mo. 588. The revocation of a license may involve a breach of a contract; if so, the licensor makes himself liable for the damages growing out of such breach (Tiedeman, secs. 652, 653), but the licensee is nevertheless bound to quit the premises when thereunto requested by the owner of the fee. Wood v. LeadMtter, 13 Mees. •& W. 838; McCrea ©. Marsh, 12 Gray, 211; Woodman v. Howell, 45 111. 367. Plaintiff should have removed his tables and departed the premises when requested by the defendant to do so, and if he had any contractual rights as against this defendant, he should have sued defendant for damages growing out of the breach of contract, but not for trespass m et armis in being put off the premises. A license is personal in character, and cannot be assigned without- the assent of the licensor. Even if Mrs. .Donahoe had a license for the right here claimed, she could not assign it to plaintiff without defendant’s consent. Tiedeman, sec. 651; 1 Washburn, *399, sec. 9.</p> <p>Section 3078, Revised Statutes, provides that all contracts for the renting or occupation, etc., of any stores, shops, buildings, etc., in cities, not in writing, shall be deemed tenancies from month to month. In 'the present case, the letting involved the right of the purchaser of a booth, as proved by the evidence and established to the satisfaction of the jury, and such other persons, not exceeding five in all, as might acquire interests in the booth, to occupy and use as stores or shops the booths themselves and also a space of ground in front of such booths. In Fuhr v. Dean, 26 Mo. 116, the court say: “A mere license may exist by parol, and ordinarily is not assignable, and is revocable unless it has been executed and the party has incurred expense on the faith of it so that he would be injured by its revocation.” In the present case, not only was there an injury by plaintiff’s objection, but as his loss was one of profits he can have no recovery for such loss. Again, in the same case, page 120, the court quotes with approval from Kent’s Com.: * * * “If, after A. has given his consent and before B. has entered upon</p> <p>the land, A. changes his mind, he has a riglit to do so and forbid B. from entering upon his land for the specified purpose. The license is thus far executory, and may be revoked at pleasure. If B. afterwards enters he is a trespasser. If, however, B. enters before any revocation of the license, the license is then executed and it is not competent for A. to revoke it and make B. a trespasser.” The cases show clearly that, under the rulings of those states with which the decisions of the supreme court of Missouri are in accord, a license, such as was granted to plaintiff, cannot be revoked while still in force by the terms of an agreement implied, having been executed in part, and while all of the conditions on which it was granted are being observed. If this be true plaintiff, when arrested, was rightfully upon defendant’s land and entitled to remain there. Clement v. Bur gin, 5 Me. 9 ; MeKillip x. MclThenny, 4 Watts, 317; Wilson x. C half ant, 15 • Ohio, 248 ; Beatty x. Gregory, 17 Iowa, 114; Snowden x. Wilas, 19 Ind. 10; Lacey x. Arnett, 33 Pa. St. 169; Huff x. McCauley, 53 Pa. St. 209 ; Addison x. Hack, 2 Gill’s R. 221; Cook x. Prigden, 45 Ga. 331; Ameriscoggin B. Co. x. Bragg, N. H. 202; Rerick x. Kern, 14 S. &'R. 267, and 2 Am. L. Cases.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Daniel Dillon, Judge.</p>

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. The rule of law is tersely and clearly laid down in 3 Parsons on Contracts [7 Ed.] p. 54, as follows: “If the contract states or implies that the thing is to be made by the seller, and also blends together the price of the thing, and compensation for work, labor, skill and material, so that they cannot be discriminated, it is not a contract of purchase and sale, but a contract of hiring and service, or a bargain by…

Louis dtp Circuit Court. — Hon. James A. Seddon, Judge. The city charter and the law permits the inclusion within a sewer district of only those lands which are benefited by the system of sewerage to be constructed in said district. The inclusion by ordinance of lands within a sewer district is not conclusive of the question whether such lands are benefited or equally benefited by the system of sewerage to be constructed in such district.

Louis City Circuit Court. — Hon. James A. Seddon, Judge, As Mesker Bros.’ suit sought to recover a mechanic’s lien judgment against Hoyt’s property for $16,664, and Hoyt had in his hands but $1,121 due Greene on his contract, and Greene did not offer to defend for Hoyt, Hoyt was compelled to defend, and as Greene’s bond was an indemnity to Hoyt against attorney fees, as well as against liens, etc., the defendants are liable for the fees. Hickman v. Craig, 6 Mo. App. 582.

Louis City Circuit Court. — Hon. James A. Seddon, Judge. The court should not have admitted evidence that the note, upon which the judgment was obtained, had been paid, or in its decree have'been governed thereby. The court should have granted the new trial on account of the discovery of new evidence. The court should have granted a new trial on account of the mistake of witness Kraft in regard to the fifty-dollar deposit certificate.

Louis City Circuit Court. — Host. George W. Ltjbke, Judge. ' To entitle plaintiff to a verdict, the burden was upon him to prove, from the evidence, that defendant’s dog had a propensity to bite mankind, and that, prior to the injuries complained of, defendant had notice of such fact.

Louis City Circuit Court. — Hon. Georoe W. Lubke, Judge. The sale was fraudulent and void as to creditors because not accompanied by delivery and followed by change of possession. R. S. 1879, sec. 2505. The retention of the old sign and license amounted to a declaration that Mrs. Gruner was still proprietor, thus negativing the idea of delivery and change of possession. Wright v. McCormick, 67 Mo.

— Hon. W. D. Hubbard, Judge. The affidavit of the circuit court clerk of Greene county clearly shows that it was impossible for the clerk to have prepared such transcript before the first day of the present month, and the appellants ought not to be held responsible for either the press of business in the Greene county circuit court or the negligence or laches of the clerk thereof.

Louis City Circuit Court.— Hoh. •James A. Seddom, Judge. s From the evidence it is certain that some witness swore falsely concerning some material fact in the case, as the testimony for plaintiff and defendant are directly opposed to each other. The instructions offered by the defendant and refused by the court were correct and should have been given. The first instruction was substantially given by the court, of its own motion, in an improved form.

Louis City Circuit Court. — Hon. George W. Ltjbke, Judge. . The undisputed facts, developed by the evidence, show that there was no such change of possession as is required by the statute. Claflin v. Rosenberg, 42 Mo. 439; R. S., sec. 2505; Wright ®. McCormick, 67 Mo. 426 ; Burgert v. Bor chert, 59 Mo. 80; Bishop v. O' Connel, 56 Mo. 158; Stern ®. Henley, 68 Mo. 262. It follows, therefore, that the instructions given at the instance of the respondent were erroneous.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. There was no evidence to show a cause of action, and the court should have given the instruction asked by defendant as a demurrer to the evidence.

<p>1. Attachment: judgment by consent : release of lien. Where an attachment is issued and levied, and subsequently, before the return day of the process,the parties appear in open court and' cause a judgment to be entered by consent in the attaching plain, tiff’s favor, this proceeding waives and releases the lien of the dttachment. The plaintiff’s failure to prosecute his attachment to judgment in the manner pointed out by law, and his acceptance of a judgment not based upon or in conformity with the writ operates a dissolution of the attachment, and the lien of other attaching creditors will take full effect, as if the first attachment had not been issued.</p> <p>2. Judgment: confession without affidavit. A confession of judgment before the return day of process in the cause, and without the statement and affidavit required by section 3697, Revised Statutes, is void as to subsequent creditors.</p> <p>3. Attachment: motion to dissolve: equitable proceeding. A summary motion to dissolve or postpone an attachment on grounds of fraud, collusion and irregularities is, in effect a statutory substitute for a bill in equity, and the appellate court is not bound by the findings of fact in the court below.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Daniel Dillon, Judge.</p> <p>The judgment is without any evidence to support it, and should, therefore, be reversed. Schenck v. Sautter, 73 Mo. 46. The rule is that a verdict in a law action unsupported by any substantial evidence will not be allowed to stand. Avery v. Fitzgerald, 94 Mo. 207-216; Lionberger v. Pohlman, 16 Mo. App. 392; Fischer v. Merchants ’ Co., 13 Mo. App. 133. It was reversible error to admit testimony against defendant’s objection that, in the early part of 1888 (nearly a year after the accident), the pilot of the vessel had gotten into trouble through drunkenness. Hipsleyv. Railroad, 88 Mo. 349 ; Ely v. Railroad, 77 Mo. 34 ; Hayes v. Railroad, 15 Mo. App. 584. And this rule applies, although the case was tried by the court, sitting as a jury, as this likely influenced its finding. McDonald v. Matney, 82 Mo. 358-366. It was error to permit plaintiff to bring out on cross-examination of Little, and against defendant’s objection, testimony as to a conversation between Little, the pilot, and Martin Michael, president of defendant, had long after the accident occurred, to the effect that the latter had charged the former with “having done bad work” — “he ought not to be paid,” etc. Aldridge v. Blast Co., 78 Mo. 559; McDermott v. Railroad, 73 Mo. 516 ; Wengler v. Railroad, 16 Mo. App. 493. The judgment of the court was contrary to the instructions given by it, and should, therefore,' be reversed. There was error in basing the italicized part of certain instructions given upon hypotheses not warranted by the evidence. Pepkin v. Haucke, 15 Mo. App. 373. The court erred in refusing the instructions asked by defendant and in giving them in a modified form, also in giving plaintiff ’ s instructions. By altering defendant’s instructions the court made them its own. Allen v. Mansfield, 82 Mo. 688. The instructions as given by the court are inconsistent and contradictory, and the judgment cannot be allowed to stand. Updike v. City, 94 Mo. 234 ; Pearce v. Railroad, 77 Mo. 508-512 ; Stevenson v. Hancock, 72 Mo. 614 ; Staples v. Town, 69 Mo. 594; Legg v. Johnson, 23 Mo. App. 590.</p> <p>There was ample testimony to permit the trial court in its discretion to render a verdict for plaintiff, the rule of law being that the appellate court will not weigh the evidence nor interfere with the verdict when there is any evidence to support it. “Where there is no evidence to support a finding and judgment they will not be set aside because of introduction of incompetent testimony, to which no objection was made at the trial.” Christian v. Lademan, 5 Mo. App. 594; Naughton v. Stagg, 4 Mo.. App. 274. “ Objections to evidence will not avail on appeal unless the grounds thereof were specified at time objections were made.” Primm v. Rabotean, 56 Mo. 407; Davis v. Hilton, 17 Mo. App. 319 ; Wayne Co. v. Railroad, 66 Mo. 77; Naughton v. Stagg, 4 Mo. App. 274. . The instructions given by the court were fair and consistent with the facts in evidence. “ Defendant must make a case in which no neglect of its own appears, presumption is that goods were lost through carrier’s negligence.” Kerby v. Adams Express Co., 2 Mo. App. 369; Isenberg v. Steamboat, 13 Mo. App. 415. In Hill v. Sturgeon, 28 Mo. 323, the condition in that bill of lading, “dangers of navigation,” was even more favorable to defendant than in ours, viz., “ unavoidable dangers,” etc. In that same case, the court says, “all human agency must be excluded, and do not embrace accidents such as may be avoided by the exercise of that skill, care, judgment or foresight which are demanded from persons in a particular occupation.” The duty of the carrier if he enters into the contract (he knowing what might happen) is continuous until the goods are delivered to plaintiff. Isenberg v. Steamboat, 13 Mo. App. 415; Steamboat v. King, 12 Mo. 278.</p>

<p>■Appeal from the St. Louis City Circuit Court. — Hon. George W. Ltjbke, Judge.</p> <p>The court erred in refusing to allow an assessment for the payment of indebtedness of the dissolved company for “unearned premiums and surrender values of its policil.” R. S. sec. 6047. The unearned premiums and surrender values of the dissolved company are entitled to share in any assessment made for the payment of the debts and claims allowed against such company, in proportion to their respective amounts. R. S. sec. 6047, sub-sec. 4; 44 Mo. 283.</p> <p>All policy-holders in a mutual company are. members of the association, whether the premiums on their policies have been paid wholly in cash, or partly in cash and partly by note. State ex rel. v. Ins. Co., 91 Mo. 311. The relations of members of mutual companies are in many respects analogous to those of stockholders in stock companies. Mygatt v. Ins. Có., 21 N. Y. 52. Debts due by the company must be paid oil before anything can be returned to the stockholders of a stock company. May on Ins. sec. 548. Strictly speaking, a mutual policy has no surrender value or no unearned premium, such as pertains to stock companies. In the theory of the law, the mutual company has no capital; its notes represent its assets, and are available to pay losses and expenses already incurred. R. S. sec. 6001. The powers of the directors are limited, by this section, to assessments for losses adjusted and unpaid, losses claimed but unadjusted, and the amount of expenses accrued. May on Ins. secs. 557 and 567; Ibid. chap. 25. A court or receiver, in the case of insolvency, derives no additional powers and can maintain no suits or make no assessments on the notes, other than the company if going could have done. As the company itself could have levied no assessment on the notes to pay “return premiums ” or surrender values, the court cannot do so on the dissolution of the company. Hence, the classification of unearned premiums and surrender values in section 6047 of our statute does not apply to mutual companies. No assessment has ever been levied for these claims, and no allowance has ever been made of them. The construction placed on section 6047 by the trial court is correct.</p>

<p>1. Sheriff: conversion : accounts. Where it appeared that an attachment debtor had transferred to the present plaintiff, before the issuing of the attachment writ, a lot of open accounts, chiefly against non-residents of this state, and the sheriff seized the attachment debtor’s books containing the same accounts and sent notices to the debtors therein of his levy, with a demand of payment to him as receiver, these acts of the sheriff constituted no conversion of the accounts for which he could be held liable in an action, whatever might be the plaintiff’s title to the same. There was no effectual interference with the plaintiff’s dominion over the property, nor any appearance of hindrance touching his collection of the amounts due, caused by the sheriff’s performance of his duty under the writ.</p> <p>2. Attachment: seizure oe books. The levying of an attachment on the debtor’s books of accounts is not in itself an attachment of the accounts. The effect of the levy and notice is to bring the persons from whom the accounts are due within the jurisdiction of the court, by means of garnishment or'otherwise, and to prevent, by such a consummation of the involuntary transfer to the receiver, the making of payments to the attachment debtor.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. George W. Lubke, Judge.</p> <p>The court erred in instructing the jury to find for the defendant under the evidence because, proof that Plout was an active member of the firm of Levi & Plout and that as such he gave a draft in- the firm name drawn on plaintiff in favor of a creditor of the firm of Levi & Plout, and that plaintiff paid the said draft as an accommodation, is prima-facie proof of the liability of the firm for the money thus obtained. 1 Bates on Part. secs. 340, 341, 361, 370, and cases cited; Potter v. Dillon, 7 Mo. 228, s. c. 37 Am Dec. 185; Bascom v. Toung, 7 Mo. 1; Putt v. Adams, 24 Mo. 186; Hickman v. Kun-Jcle, 27 Mo. 401; Dear dorff v. Thacher, 78 Mo. 128; Bank v. Snyder, 10 Mo. App. 211; Bank r. Lead Co., 12 Mo. App. 587 ; Feurt v. Brown, 23 Mo. App. 332 ; Bank v. Binney, 5 Mason, 176; Winship v. Bank, 5 Pet. 529 ; Stockwell v. Dillingham, 50 Me. 442 ; Hoskinson v. Eliot, 62 Pa. St. 393; Saltmarsh v. Bower, 22 Ala. 221; Palmer v. Scott, 68 Ala. 380 ; Smith v. Collins, 115 Mass. 388. The court erred in ruling that the testimony of Henry Klopfer, plaintiff, was prima facie incompetent, and that ,his testimony must be limited to transactions between himself and defendant. Klopfer was prima facie a competent witness in the cause, and his testimony should have been admitted as competent, except where it clearly had reference ■ to transactions between himself and Plout. Fulkerson ®. Thornton, 68 Mo. 468; Amonett n. Montague, 75 Mo. 43 ; Nugent v. Curran, 77 Mo. 323 '; Williams v. Peirkins, 83 Mo. 379; Batesv. Forcht, 89 Mo. 121. The court erred in excluding evidence as to whether Plout had previously issued notes or drafts in the name of Levi & Plout. Bates on Partnership, sec. 320, and cases cited ; Holt v. Simmons, 16 Mo. App. 97; Hayner v. Crow, 79 Mo. 293. The court erred in excluding the testimony of Joseph Schoen as to the state of accounts between Klopfer and the firm of Levi & Plout, after it was shown that the books of account could not be found, reasonable efforts having been made to find them. Where a party is incompetent to testify because the other party is dead, it is proper to resort to any circumstances having a tendency to throw light upon the particular transaction. Kincheloe v. Priest, 89 Mo. 240. The court erred in causing to be stricken from the record the statement of plaintiff that his payment of the draft was a loan of the money.</p> <p>The testimony of Harris and that of plaintiff in error, who testified to the allowance of plaintiff in error’s demand against the individual estate of J. H. Plout in the probate court, together with the testimony of Benjamin Eiseman and Joseph Schoen, as to the loan made by plaintiff in error being an individual one to J. H. Plout; and the omission of plaintiff in error to prove his claim or to make the attempt to prove the same against the partnership estate which was administered upon by defendant in error, was all indicative that the loan made by the plaintiff in error was an individual one to J. H. Plout, the deceased, for his sole use and benefit, and not a loan made to the firm of Levi & Plout. It will be remembered that this is not a suit upon the bill of exchange, for that instrument was cancelled when paid ; but one for money alleged to be loaned to the firm of Levi & Plout, at their request; and it devolved upon plaintiff in error, in order to sustain his case against defendant in error, to show that the request for the loan was made by Levi & Plout independent of the bill of exchange — that is to say, he was bound to prove that the bill of exchange was honored by himself, purely as a matter of accommodation to Levi & Plout. This he failed to do, as the record will show. Klopfer was a party to the contract and cause of action; and Plout, the deceased, was the other party to the contract; therefore, under the statute, Klopfer was incompetent to testify to anything that occurred between himself and Plout respecting the transaction ; and the exclusion of this character of testimony upon objection from defendant in error was proper. Pritchett v. Reynolds, 21 Mo. App. 674; Angel v. Hester, 64 Mo. 142; Loolcer n. Bams, 47 Mo. 145 ; Ring r>. Jamison, 66 Mo. 429; Hisaw v. Sigler, 68 Mo. 449. As before stated, this suit is for the balance of an alleged loan of money said to have been made by plaintiff in error to the firm of Levi & Plout, at its request, and is not a suit upon a bill of exchange. Were it a suit upon Levi & Plout’s acceptance or promissory note, the defendant in error, as a member of that trading partnership, might be held prima facie liable by the introduction in evidence of the firm paper sued upon; but the bill of exchange introduced in evidence was not the subject of the suit, and could not have been. It was cancelled paper, and prima facie it imported that the plaintiff in error was indebted to the firm of Levi & Plout, and had liquidated that indebtedness by honoring the bill. The bill of exchange was admitted in evidence only as a circumstance in support of the plaintiff’s case, to be supplemented by other competent testimony showing that the bill was paid by plaintiff in error at the request of Levi & Plout, purely as a matter of accommodation to them. Plaintiff failed to supply this other testimony, and was not entitled to recover upon his case as presented.</p>

<p>1. Damages: pleading : proximate cause. In an action for damages from the defendant’s negligence in keeping am elevator hatchway in a dangerous condition, so that the plaintiff’s minor son fell through and was killed, a petition which, after setting forth in general terms the acts and omissions constituting negligence, proceeds to aver, “ that in consequence of the aforesaid wrongful acts, neglect and default of defendants, and without fault on his part, the said William Hansenborg * * * fell into and through the hatchway,” etc., states with sufficient definiteness that the negligence was the proximate cause of the injury.</p> <p>2. Practice, Trial: motion for continuance. There is no abuse of the court’s discretion in denying an application for a continuance, when the subpoena for the absent witness was issued only on the day before the trial, and no inquiry touching his whereabouts had been made by. the applicants, or their counsel, until that day.</p> <p>3. Practice, Appellate: assignment of errors. An assignment of errors in admissions and refusals of evidence by the trial court which specifies the matters of complaint no further than by reference to the pages of the record on which they appear, is not the proper way for directing the attention of an appellate court to the errors complained of, and submits nothing to the court for consideration under the rules of appellate procedure.</p> <p>4. Negligence: injury: proximate cause. When the evidence tends to show that the defendants were negligent in regard to the condition of their hatchway through which the plaintiffs’ son fell, and in keeping the boy at work about it under circumstances of peril, the fact that no witness saw the boy fall does not tend to negative a connection, by way ,of proximate cause, between the defendants’ negligence and the injury done.</p> <p>5. Contributory Negligence: working in dangerous position. It cannot be said, as a matter of law, , that a boy sixteen years of age who works under orders from his superiors in a possibly dangerous position is, in the event of injury, guilty of contributory negligence,</p> <p>6. Instructions: measure of damages. An instruction that the jury, if they find for the plaintiff, should assess her damages at such sum, not exceeding five thousand dollars, as they may deem fair and. just, with reference to the necessary injury resulting to her from such death, is .not open to the objection that it permits the jury to add a sum, by way of solatium, to the substantial damages shown in evidence.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Shepard Barclay, Judge.</p> <p>There is no evidence to sustain the allegation that defendant employed plaintiffs to build the stairs for him. Mueller’s promise to pay Yeoman is within the statute of frauds, and void because not in writing. Dugan v. Conzelman, 21 Mo. 424 ; Bresler v. Pendall, 12' Mich. 225; Tilistone v. Nettleton, 6 Pick. 509; Berkshire v. Young, 45 Ind. 461; Bonchell 'o. Neaster, 36 Ohio St. 331. The fact that the work was not yet completed does not alter the case. Wood on Fraud, sec. 126; Bresler v. Pendall, 12 Mich. 225; Tilistone v. Nettleton, 6 Pick. 509; Booker v. Tally, 2 Hump. 308; Arbuckle v. Hawks, 20 Yt. 538. Mueller’s promise was without consideration to sustain it. Berkshire v. Young, 45 Ind. 461; Stewart v. Campbell, 58 Maine, 439 ; Brightman v. Hicks, 108 Mass. 246 ; Cowsenhaien v. Howell, 36 N. J. L. 323 ; Birchell v. Neastor, 36 Ohio St. 331 ; McDonald v. Dodge, 10 Wis. 106 ; Cook «. Elliott, 34 Mo. 586. The promise of an owner to pay a sub-contractor after the latter had contracted to do the work and done part, is without consideration unless the sub-contractor at the time agreed to discharge the lien and the principal contractor. 'Wood on Frauds, sec. 150 and cases cited. Whenever the promise is made after the debtor and promisee had contracted and part of the work was done, a new and additional consideration, one independent of the original consideration, is necessary.</p> <p>The contract made by the appellant Mueller with the respondents is an original, direct and independent contract of Ms own. He dealt for himself and on his own behalf in making the contract and charged himself, directing and requesting respondents to furnish the materials and do the work in suit for him personally and individually, agreeing and promising to pay for the same himself. He did not enter into any collateral contract as guaranty or surety with respondents to pay the debt of another. No such contract was contemplated. Green ®. Burton, 59 Vermont, 423 ; Maurin ®. Eogelberg, 37 Minn. 23 ; Crawford ®. Edison, 13 N. E. Rep. 82; Emerson ®. Slater, 22 How. 35; Nelson ®. Boynton, 3 Metcalf, 402; Calkins ®. Ohandler, 36 Mich. 324; Clifford ®. LuHirig, 69 111. 401; 1 Reed Stat. Frauds, secs-. 70-73; Browne Stat. Frauds, sec. 214. The whole transaction shows that appellant’s contract is not within the statute of frauds. The substance of the transaction and contract between appellant and respondents is to govern in determining this, the appellant is under a direct obligation to pay the amount sued for independently of any contract of guaranty or surety making his promise original and not within the statute. Browne Statute Frauds, sec. 214; Green ®. Burton, 59 Vermont, 423. The consideration to support the contract entered into by appellant with respondents is self-evident, viz., the furnishing for him and his houses the materials and work contracted for to complete the stairs. Roberts Frauds, 231-232 ; Calkins ®. Chandler, 36 Mich. 324.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Valia ant, Judge.</p> <p>The circuit court erred : (1) In not setting aside the verdict, as against the weight of evidence. Plaintiff’s testimony as to the circumstances and cause of the destruction of the gasholder was clear, consistent, unimpeached, and sufficient not only to make out its case, but to exclude any reasonable hypothesis to the contrary. Defendant’s eye-witnesses confirmed plaintiff’s proof as to what occurred, so far as observed by them; its expert witnesses wholly ignored most material facts, proved without contradiction, and so far as they presented or suggested any theory of the disaster, it was contradicted by defendant’s own proof. Under such circumstances the verdict oí the jury was the result of a manifest mistake, and it is the duty of the appellate court to set it aside. Lionberger v. Pohlman, 16 Mo. App. 392, 398 ; Bank v. Overall, 16 Mo. App. 514; Taylor v. Fox, 16 Mo. App. 527 ; Borgraefe v. Knights of Honor, 22 Mo. App. 148. (2) In admitting the witness Potter’s testimony as to the meaning of the word explosion. Evidence is not admissible to define or explain words used in a contract unless such words are obscure or ambiguous, or used therein in some special sense, or their meaning controlled by some special usage.. 1 Greenl. Ev. secs. 277-81; Reid v. Ins. Go., 58 Mo. 424-5; Koehring v. Muemminghoff, 61 Mo. 407; State v. Donnelly, 9 Mo. App. 520, 526 ; Fruin v. Railroad, 89 Mo. 404 ; 2 Whart. Ev., sec. 972. (3) In admitting incompetent testimony intended to contradict plaintiff ’ s witness Lansden. When a witness is cross-examined on a matter collateral to the issue, he cannot, as to his answer, be subsequently contradicted by the party putting the question. The test of whether a fact inquired of in cross-examination is collateral is this, — would the cross-examining party be entitled to prove it as a part of his case tending to establish his plea ? 1 Whart Ev., sec. 559 (cas. cit. note 3); 1 Green. Ev., sec. 449; Holmes v. Anderson, 18 Barb. 420 ; Lohart v. Buchanan, 50 Mo. 201; Bank v. Murdock, 62 Mo. 74-5. (4) In admitting testimony by expert witnesses for defendant, which was incompetent, because the witness was permitted: (a) To say what produced a certain effect observed by him in the wreck, though other testimony of the same kind was excluded. (b) To state, ip effect, under color of an expert opinion, that certain phenomena testified to for plaintiff by an eye-witness, could not have occurred. (c) To answer hypothetical questions which assumed material facts not in evidence. (d) To answer hypothetical questions based upon an incomplete and inaccurate statement of facts in evidence. (e) To give an opinion, prejudicial to plaintiff’s case, on a matter not in issue. The function of experts is to give their opinions or judgments as to conclusions from facts within the range of their specialties, but too recondite to be properly comprehended and weighed by ordinary reasoners. But where scientific men are called as witnesses they cannot give their opinions as to the general merits of the cause, but only their opinions upon the facts proved. If there is no dispute as to the facts, the opinion of such witness may be asked directly ; if the facts remain to be found by the jury, they must be hypothetically stated to the expert, but such hypothesis must conform to the evidence in the case.; and it is not competent for an expert to pass on the credibility of evidence submitted to the jury, nor to give an opinion upon assumed facts not in evidence. 1 Whart. Ev. secs. 440, 452 ; 1 Greenl. Ev. sec. 440; Muldowney ». Railroad, 37 Iowa, 615 ; Tingle v. Cowgill, 48 Mo. 291, 298 ; Roney v. Chase, 52 Maine, 304; Thayer v. Davis, 38 Yt. 163 ; Sills v. Brown, 9 Carr. & P. 601. (5) In excluding competent expert testimony offered for plaintiff. An expert’s reasons for his opinion are competent; the value of his judgment often depends on the reasons for it. 1 Whart. Ev. sec. 453; Keith v. Lothrop, 10 Cush. 457; Commonwealth v. Webster, 5 Cush. 301-; Collier v. Simpson, 5 Carr. & P. 73. (6) In refusing instructions asked by plaintiff, to the effect, respectively, (a) that the words of the policy are to be taken in their ordinary sense. (b) That the gasholder in question was not a building within the meaning of the policy. (e) Or, if the question whether the gasholder was a building was a question of fact for the jury, then in refusing to submit such question to the jury, (d) That if the said gasholder was damaged in consequence either of the burning or of the explosion of the gas, or both, then a loss occurred under the policy- even though said gasholder was not visibly burned. A litigant has the right to instructions placing before the jury in plain and direct terms every legal phase of his case which is justified by the evidence. Maupin v. Lead Co., 78 Mo. 27 ; Calm v. Reid, 18 Mo. App. 115; Livingston v. Ins. Co., 7 Cranch, 244. Expert testimony was erroneously admitted for defendant, to the effect that on the evidence before them there was no explosion; also, testimony that the gasholder did not appear to have been burned ; in view of which plaintiff’s instructions three and nine, respectively, should have been given. A sheet-iron gasholder is not a building in the common acceptation of that word ; this policy itself, in terms, distinguished between the “building” and the “gasholder” insured thereby. It was the duty of the court to so instruct the jury. State v. Donnelly, 9 Mo. App. 526 ; Fruin v. Railroad, 89 Mo. 404-5; Weil v. Schwartz, 21 Mo. App. 372. Or, if the meaning of the word “ building,” as used in the policy, was doubtful or ambiguous, it should have been left to the jury, and plaintiff’s instructions 6 a and 65 should have been given, having been asked in view of that alternative. Edwards v. Smith, 63 Mo. 127; Weil v. Schwartz, 21 Mo. App. 381. (7) In instructing the jury (defendant’s-number seven), in effect, that the gasholder was a building, and within the provisions of the policy concerning the fall of a building.</p> <p>The weight of the testimony was strongly in favor of the'respondent and the jury found rightly on the facts. But even if there were a doubt about this, the court will not weigh the testimony. Hipsley v. Railroad, 88 Mo. 353; Walker v. Oioens, 25 Mo. App. 587-595; Manion & Co. v. Carreras, 26 Mo. 229; Rothschild v. Railroad, 92 Mo. 91. There was no error as to the question to and answer by Professor Potter : “Q. In speaking of the ignition of the gas, the quantities and under the circumstances mentioned, is there, in the ordinary acceptation of the word, an explosion of gas? A. There is not.” Professor Potter was an expert, well acquainted with the nature of gases, including carbo-hydrogen gas, and he was questioned as above concerning this gas under the circumstances mentioned. He, an expert, stated as a fact that, under the circumstances mentioned, there would be no explosion. This was not to define or to explain that word in the contract, and we do not deem it necessary to controvert either the general proposition of law or the authorities set forth on this point in the appellant’s brief. We agree that; the word was used in its ordinary meaning, and that the construction of the policy was with the court solely. It is to be remembered, in considering all appellant’s objections to expert testimony, that the court, at the request of the appellant, instructed the jury that the jury were not bound to adopt the opinion of any witness, and it was for the jury to determine what weight, if any, they would give to any opinion, theory or conclusion stated by any witness. Forsythe v. Doolittle, 120 U. S. 76-77; State v. Baber, 74 Mo. 297. The authorities cited by appellant are not to any degree opposed to the method of examination pursued. The questions were - based upon and in accordance with the facts in evidence, and the objections of the appellant are hypercritical. Spear v. Richardson, 37 N, H. 24. The authorities do not require the whole case put into the questions in each instance, nor at all, save when the witness is allowed to give an opinion embracing all the facts. This was not allowed in the present case. Harnett v. Garvey, 66 N. Y. 641; Williams v. State, 64 Maryland, 384. The testimony of Prof. Potter was properly admitted. As to hypothetical questions put, either that they assumed material facts not in evidence or were incomplete and inaccurate statements of facts in evidence. If the evidence tends to prove the facts supposed it is sufficient. Spear v. Richardson, 37 N. H. 24. Also, if within possible or probable range of the evidence. Harnett v. Garvey, 66 N. Y. 641. Prof. Johnson was testifying as an expert civil engineer, and acquainted with the nature of the gas spoken of. It is apparent, we submit, that it was competent for the defendant to show that the ignition of the gas escaping above the holder produced no different results as to its escaping than if it had escaped without' ignition. The expert gave as his opinion that there would be no difference as to escaping, which was, of course, only one factor in the case; but a pertinent fact, tending to prove that the fai lure was not attributable to the ignition of the gas. The particular testimony of Keenan, and of White, was properly excluded-, in each instance. The testimony was incompetent and clearly irrelevant. The first question was, whether the witness had ever known of a case where a suspension frame was broken down by mechanical means alone, in the absence of combustion of gas. He answered that he knew of one instance where a gasholder was destroyed without injury to the suspension frame, and he is then asked whether or not it was accompanied with inflammation or combustion of the gas outside, over or above the holder. The testimony was incompetent, as the facts were not sufficient to show either that any one could become an expert by such an observation, so as to give an opinion in every other case where there was a failure of a gasholder, and it was irrelevant as it in no wise tended to show whether the failure of the gasholder of the plaintiff was caused one way or another. It was an effort to bring into this case an inquiry as to the failure of another gasholder, the cause of which could be properly determined only by an investigation of all the facts relating to that. It is apparent that such statements, whether admitted or excluded, could not affect the case in hand, or tend to elucidate the question to be solved, unless the conditions of the two cases were the same, and whether they were or not was not attempted to be proven. Nor was it possible to legally make the inquiry in this case. There was no error in refusing to instruct the jury that the words of the policy were to be taken in their ordinary sense. There was no pretense by any one but that the words were to be so taken, nor any testimony introduced to show otherwise. The question to Prof. Potter expressly referred to the ordinary sense of the word. The rule involved is a rule of construction and the construction of the policy belonged exclusively to the court. 1 Grreenl. Ev. secs. 277-281; Thompson on “ Charging the Jury,” sec. 12 and cases cited ; State to use v. Lefafore, 53 Mo. 470 ; Edwards v. Smith, 63 Mo. 119-127 ; State to use v. Donnelly, 9 Mo. App. 519-526; Koehring v. Muemminghoff, 61 Mo. 407. There was no error in refusing to instruct that the gasholder was not a building within the meaning of the policy in the language of instruction number six. The instruction would have presented a false issue. The gasholder was a building within the letter and spirit of the policy. Nave v. Ins. Co., 37 Mo. 371; Flanders on Fire Ins. 551; Wood on Fire Ins'. 114, and cases cited. Nor was there error in refusing the instructions 6a and 65. 6a was erroneous in attempting to put it to the jury whether the gasholder was a building within the meaning of the policy ; and because it attempted to put a false issue, that the fall of a part of the gasholder would not relieve defendant from liability as to damage to remainder by lire or explosion. Railroad v. Conlon, 92 Mo. 221; Wadding-ham v. Hulitt, 92 Mo. 528 ; Yanhooser v. Berghoff, 90 Mo. 487. 65 was erroneous inasmuch as it attempted to put before the jury as an issue that which was not such. It was not claimed in the answer nor during the trial that a fall of a part of the building would exempt the defendant for loss by either fire or explosion. The instruction was misleading. It was fully supplied by the other instructions given. Nor was there error in refnsing the ninth instruction asked by plaintiff to the effect that, if the gasholder was damaged in consequence either of the burning or of the explosion of the gas or both, then the loss occurred under its policy, even though said gasholder was not visibly burned, etc. The instructions given declared the whole law applicable to the case and were essentially the same as this . instruction. Milter v. Railroad, 90 Mo. 389 ; State v. Jump, 90 Mo. 171. The instruction was involved, confused and misleading. Talbert v. Mearnes, 21 Mo. 427-431. It attempted to instruct the jury on the effect to be given to particular facts in evidence, commenting thereon. Anderson v. RincTieloe, 30 Mo. 520 ; Jones v. Jones, 57 Mo. 138 ; Forrester v. Moore, 77 Mo. 651-659 ; Thompson Charging the Jury, • sec. 44; Adams v. Roberts, 2 Howard (U. S.) 486; Reese v. Beck, 24 Ala. 651-662. The question, whether the gasholder was a building or not, was not necessarily involved in this case. The word building was not used in any instruction given; the law applicable was the same whether it was a building or not. But the court could have properly instructed that the gasholder was a building within the meaning of the policy. Rave v. Ins. Co., 37 Mo. 371. The judgment was for the right party.</p>

<p>1. Contract: substituted articles. In a suit on a contract, whereby the plaintiff was to furnish to the defendant a furnace having all its pipes made of a specified description and quality of tin, and the undisputed facts were, that one of the pipes furnished was not of tin, and all the others were of an inferior quality and a different kind of tin from what was required by the contract, the court erred in refusing an instruction in the nature of a demurrer to the evidence.</p> <p>2. Pleading: admissions in answer. An admission in the defendant’s answer, that the plaintiff did place a furnace in the defendant’s house and made the hot-air connections with hot-air pipes, and furnished smoke-pipe and cold-air pipe, cannot be construed into an admission that the pipes were of the kind and quality described in the contract.</p> <p>3. Contract: substitution by contracting party. A contracting party has no right, without the consent of the other party, to furnish an article wholly different from the one demanded by his contract, because the substituted article is better than that which the contract specifies.</p>

<p>' 1. Insurance: excepted causes of loss. The defendant insured the plaintiff against loss or damage on his buildings “ by fire originating in any cause,” etc., with a reservation that “if a building shall fall, except as the result of a fire, all insurance by the company on it or its contents shall immediately cease and determine.” The loss ensuing was accompanied by an explosion, which was claimed by the plaintiff to have been caused by an antecedent fire, and by the defendant to have been the effective destroying agency, followed by a fire. Held: Whether the ignition of the explosive substance was caused by a negligent or unlawful fire, or by an innocent fire not having in itself a destructive tendency, the accepted scientific fact must be recognized, that such explosions are preceded by ignition and accompanied by intense heat; and therefore, in either event, it cannot be said that a loss under a policy which insures against fire “ originating in any cause ” is not within the risks covered by such policy.</p> <p>2. Instructions: cause op loss. An instruction was properly given to the effect that, if the jury believed that a fire upon some part of the premises was the original cause of the loss, or that the fall of the buildings was the direct result of some burning substance in contact with some part of the buildings, then it was immaterial whether • the result manifested itself in the form of combustion or explosion,^ or of both combined. In either case, the damage was covered by the terms of the policy.</p> <p>3. Instructions: insurer’s liability. An instruction which, in defining an insurer’s liability, limits the application of the word “fire,” when resulting in explosion, to a “burning substance in contact with some part of the buildings,” is not open to objection that the word may be applied in that connection to a burning gas-jet or other lawful and innocent fire on the premises.</p> <p>4. Instructions: perceptible damage. Instructions to the effect that if the buildings were not perceptibly damaged by fire prior to the explosion, there could be no recovery on the policy were properly refused.</p> <p>5. Instructions: unnecessary number. Where there is but one issue before the jury, the refusal of nine instructions asked for by the defendant may be justified on account of their number alone.</p>

<p>1. Mechanic’s Lien: defective statement. A suit for a mechanic’s lien on account of materials furnished by a sub-contractor cannot be maintained, if the statement fails to show that the materials were furnished for the building described. Without such an averment, it is not sufficient to allege that the materials actually went into the construction.</p> <p>2. Practice, Trial: aider by verdict. .The omission of a statement that the materials were furnished for the building cannot be cured by verdict, when no evidence was offered to show that they were so furnished.</p> <p>2. Amendment: jurisdiction. In a case begun before a justice of the peace, an averment which is essential to show jurisdiction in the justice may be supplied by amendment in the circuit court.</p>

<p>1. Replevin: title in third person. In an action, of replevin founded on a forfeited chattel mortgage executed by the defendant, he cannot set up in defense that a third person holds a better title than that of the plaintiff by reason of a jirior mortgage delivered to such third person by the defendant — thus implying a breach of his own warranty of the plaintiff’s title — and especially when it does not appear that the condition of such prior mortgage has been broken.</p> <p>2. Justices of the Peace: jurisdiction : replevin. In a replevin suit before a justice of the peace, the value of the property as fixed by the complainant’s statement and affidavit is conclusive as to the jurisdiction of the justice.</p>

<p>Appeal from, the St. Louis City Circuit Court. — Don. Leroy B. Yalliant, Judge.</p> <p>The court should not have forced defendant to trial during his absence. A continuance is largely within the discretion of the court, but in a case like this, where the defendant’s absence was occasioned by an order of the court itself, shortening the time to take the deposition, and was in good faith, preparing to take them, it was an abuse of sound discretion on the part of the court to force him to trial. State v. Wood, 68 Mo. 444. The contract between the parties was a joint one, and defendant’s instruction for a non-suit should have been given. The contract was not a several one on which Richey and Bowman could bring separate suits. The subject of the agreement was the contract with the New York company — this belonged to a corporation, not to individuals. Branson could not get it save by the joint action of Richey and Bowman. No part of the consideration to Branson could come from either Bowman or Richey, but must come from both — their joint action as officers of the corporation. C larhe v. Cable, 21 Mo. 223; Denney v. Covey, 60 Mo. 224; Bobbins v. Ayres, 10 Mo. 538; Wells v. Catey, 9 Mo. 565. The court erred in taking the case away from the jury and instructing them to find for the full amount sued for. The only ground on which the court could have done this must have been that the answer sets up no defense. Where the defendant offers any testimony in support of his answer he has a right to the opinion of a jury upon the issue, unless the answer fails to make out a defense. Owens v. Rector, 44 Mo. 389; Benton v. Klein, 42 Mo. 97. In order to justify taking a case from the jury there must be no evidence tending to prove the case of defense ; the fact that the evidence is weak or unsatisfactory is a question for the jury and not for the court. Rantsang v. Railroad, 45 Mo. 236; McFarland v. Bellows, 49 Mo. 311; Bowen v. Lazalere, 44 Mo. 383-88 ; Claflinv. Rosenburg, 42 Mo. 439 ; Meyer v. Railroad, 40 Mo. 151; Holliday v. Jones, 59 Mo. 482.</p> <p>In the first point of his brief appellant contends that the court abused its discretion by overruling his application for a continuance, and cites in support of his position, State v. Wood, 68 Mo. 442. That is a criminal,, case, and is not in point, inasmuch as the facts upon which the trial court acted were not similar to the facts here, and the statutory provision applicable to continuances in criminal cases is different from the provisions applicable to continuances in civil cases. R. S., secs. 1841, 3591-3595. When defendant prepared his affidavit for a continuance it is to be presumed that he set forth therein, as fully and completely as the absent witnesses would have stated if present, the facts he expected to prove by them, and, when plaintiff, for the sake of avoiding a continuance, after the trial court had ruled that the affidavit was sufficient,- admitted that the witnesses, if present, would testify to the facts stated, the defendant was in as favorable a position for the presentation of the testimony of said witnesses as he would have been if they or their depositions had been in court. Defendant contends that the contract in suit was a joint one so far as plaintiff and Bowman were concerned, and, being joint, that the plaintiff could not maintain a separate action thereon. There is no evidence whatever to sustain this claim. On the contrary, it clearly appears that the defendant contracted separately with plaintiff for the performance of a service distinct from any service which was to be performed by Bowman. Cross v. Williams, 72 Mo. 580 ; Parsons on Contracts, 18; Bliss on Code Pleadings, sec. 63. The trial court did not err in taking the case from the jury for the reason that the answer did not state a defense of fraudulent representations with reference to the one thousand dollars “bonus,” and there was no evidence introduced tending in any way whatever to sustain the allegations of the answer on this point, even though they may have been properly pleaded and constituted a defense if proved. The statute provides that affidavits for continuances shall state what particular facts the affiant “believes the witness will prove,” and if the application is sustained, that the cause shall be continued unless the opposite party admits that the witness, if present, would swear to the facts set out in the affidavit, but that the party moving for a continuance shall be permitted to read, as the evidence of such witness, the facts so stated in the affidavit. R. S.; secs. 3595-6. Hence it is only that portion of the affidavit that states what it is believed the witnesses named therein would, if present, testify to, that is competent or relevant in evidence. Now, an inspection of the affidavit in question here, as it was offered in evidence and read to the jury, will show that the most essential portion of it — that is, that portion to the effect that plaintiff and Bowman agreed to pay to the parent company a bonus of one thousand dollars— is not a statement of a fact which the absent witnesses' were expected to prove, but, on the contrary, is a statement of the belief on the part of one of defendant’s attorneys who made the affidavit of the existence of such a fact; so that there is nothing in the affidavit tending to establish that any agreement had been made by plaintiff and Bowman to pay to the parent company the sum in question. The affidavit is thus left without any statement whatever tending to establish the allegation of fraudulent representation. The fact that the affidavit was.admitted in evidence over plaintiff’s objection does not alter the case; the admission of incompetent or irrelevant testimony will not make it competent or relevant. Besides, the court had the right, after the affidavit was admitted, if it was incompetent, or improperly admitted, to tell the jury to disregard it in making up their verdict, and that is what it, in effect, did in the instruction which directed them to find for plaintiff.</p>

<p>1. Admission by Party, Through. Another Person. Where a witness was referred by the defendant to a third person for all the information he desired concerning a transaction in controversy, the statements thereupon made to the witness by such third person are competent evidence in the nature of admissions made by the defendant through his authorized agent, so far as such statements are within the scope of the reference.</p> <p>3. Evidence: contradicting one’s own witness. While a party may not attack the character of his own witness or impeach his credibility, it is yet always competent for him to show by other testimony that any material statement made by such witness is not true.</p> <p>3, Practice, Appellate: affirmance on proofs. Although all the positive proofs relating to a valid defense may tend to establish such defense, yet if, in the light of all the facts developed by the evidence, it cannot be said that there is no substantial evidence tending to cast a reasonable and well-grounded suspicion on such defense, nor any tending to disprove it, and if the trial court has sustained a verdict against such positive proofs of the defendant, the testimony countervailing them need not be very strong to authorize an affirmance of the judgment.</p> <p>4 Instructions s effect of testimony. An instruction that the jury were not bound to accept as true a statement of fact made on the witness-stand, if from all other facts and circumstances in evidence they believed that such statement was net true, was substantially correct. An instruction that it was not. necessary to establish fraud by positive and direct proof, but that it might be established by evidence of facts and circumstances from which, with all the evidence in the case, the jury might be satisfied of the xistence of such fraud, may be open to criticism, but is not sufficiently so to authorize a reversal on that account.</p> <p>4 Judgment: joint or several. An objection that a judgment was rendered against two defendants jointly, whereas the evidence tended to show a liability in only one of them, cannot be urged by the defendant so supposed to be liable, when his co-defendant has offered no such objection.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge, f</p> <p>The court erred in the admission and exclusion of evidence. Natcghton v. Stagg, 4 Mo. App. 275. The court erred in giving the instruction asked by plaintiff, and in refusing instructions C. and D. asked by defendant. Chouteau v. Iron Works, 83 Mo. 73; Evans v. Railroad, 16 Mo. App. 522 ; Fitzgerald v. Hayward, 90 Mo. 522; Eyerman v. Oem. Ass'n, 61 Mo. 489 ; Park v. Kitchen, 1 Mo. App. 357; Duke v. Harper, 8 Mo. App. 301; Williams v. Porter, 51 Mo. 441; Hall v. Johnson, 57 Mo. 521.</p> <p>Though a contract is necessary to the establishment of a mechanic’s lien, the lien is created not by the contract, but for doing-the work. 14 Mo. App. 37. There was ample evidence offered by plaintiff to support his cause. This court will not review the record to determine where the preponderance of evidence lies. Gould v. Smith, 48 Mo. 43 ; Douglass v. Orr, 58 Mo. 573; McHugh v. Myer, 61 Mo. 334 ; Ins. Co. v. Schultz, 30 Mo. App. 95. Although defendant was not compelled to file an answer in the justice’s court, the fact remains that he did so, and the answer was read in the trial in the circuit court. He is limited to the legal defenses made in that answer in the appellate court. Helling v. United Order of Honor, 29 Mo. App. 309. An instruction which assumes an issuable fact, conceded by the other party, or about which there’ is no reasonable contention, is not erroneous. Herriman v. Railroad, 27 Mo. App. 436; Price v. Haéberle, 25 Mo. App. 201. When the whole record shows that the judgment was unquestionably for the right party, an appellate court will not reverse for a technical defect in an instruction. Brooking v. Shinn, 25 Mo. App. 277. If the contract was determined by defendant and the plaintiff was prevented by him from proceeding with the work, the plaintiff may recover the reasonable value of the work done by him without regard to the contract price. Ahern v. Boyce, 19 Mo. App. 552; s. o., 26 Mo. App. 562; McCullough v. Baker, 47 Mo. 401. Suit may be brought on quantum meruit, even when a contract exists, by either party. Suits v. Taylor, 20 Mo. App. 166 ; Crump v. Rébstock, 20 Mo. App. 37. The jury in this cause rendered a verdict for plaintiff, on the premises that he had performed so much work and was prevented by the owner of the property from doing more. It is for the work done that we claim the lien, and consequent remuneration.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge.</p> <p>. The court erred, in overruling appellants’ objection to the admission of the mechanic’s lien in evidence for the reasons that it Fas too indefinite and uncertain, not properly itemized, and that the work was not separated from the materials ; that It did not separate the different divisions of the plastering so as to enable one to-ascertain whether any part of it was correct, without first taking the measurements of all of the rooms, closets,, etc., in the building, nor did such lien give the measurements of any portion of said building separately. The lien is given to' any person who shall “do or perform any work or labor” or “furnish any materials.” Thus, each is itself specifically the subject of a lien. R. S., sec. 3172. Nothing appears to warrant the idea that there may be an “account” for “materials,” and a mere lumping charge for “labor” or one omitted altogether, or both thrown loosely in one mass, in undefined quantities and proportions. Simmons v. Carrier, 60 Mo. 581 ; Schulenburg v. Prairie Home, 65 Mo. 295 ; Kling v. Railroad, 7 Mo. App. 410. An “account” means a “ detailed statement.” Me Williams v. Allan, 45 Mo. 573; affirmed 86 Mo. 287 ; Coe v. Ritter, 86 Mo. 286 ; Whitmore v. Yeager, 3 Mo. App. 582; Lowis a. Cutter, 6 Mo. App. 55. And in this as well as other states the cases show that a claimant has been held to designate separately his labor and his materials; and specifically describe what he claims for each and upon what ground. Codding v. Hast, 8 Mo.'App. 573 ; Heinrichs v. Gymnastic Society, 8 Mo. App. 588 ; Foster v. Wulflng, 20 Mo. App. 90 ; Jersey Co. v. Oliver, 29 N. J. Law, 420-2; Phillips on M. L., sec. 441; Hampton v. Catlin, 1 E. D. Smith, 729; Russell v. Bell, 44 Pa. St. 47 ; 66 Pa. St. 336; Carson v. White, 6 Grill [Md. ] 19-20 ; Trustees v. Heise, 44 Md. 473 ; Shackleford v. Black, 80 Ya. 576-7. The court erred in refusing the instruction offered by appellants at the close of plaintiffs’ case, in the nature of a demurrer to the evidence. The evidence had disclosed that the work embraced in the account lien had been contracted for, and done under two separate and distinct written contracts, made thirteen days apart, which could not be embraced in one lien, and enforced in a single action, as attempted in this case. There is no continuity of account under such contracts. Livermore v. Wright, 33 Mo. 31; Henry v. Malone, 23 Mo. App. 83; Allen v. Milling Co., 73 Mo. 693. The court erred in giving the instruction offered by the plaintiffs at the end of the trial. This instruction contained several irrelevant and extraneous matters, that had no place in the trial of the case and were not proper to put before the jury. First, it required them to find the “actual date” when the house was commenced; second, it compelled them to pass upon the priorities of the lien and the appellants’ claims. This instruction directly tended to mislead and confuse the jury in their examination of the material facts, viz., the plaintiffs’ claim, its amount, justness and character, whether the work and labor went into the building, the prices, etc. All this was error. Steininger v. Beaman, 28 Mo. App. 594; Fire Clay Worlcs v. Fllison, 30 Mo. App. 67. The court erred in refusing defendants’ instructions numbered one to five. As to instructions four and five we claim that the court should have declared the effect of the contracts or written bids as matter of law. And hence offered an instruction based on that theory which was refused. But if we were wrong in that, then the other instruction offered, which required the court to leave it to the jury as to whether the work was done under one or two contracts, was certainly right. Livermore v. Wright, 33 Mo. 31. And where materials and labor have been furnished under distinct contracts it is necessary that the lien should be filed under each contract. Henry v. Mahone, 23 Mo. App. 83; Allen v. Mining Co., 73 Mo. 693. The court erred in overruling the defendants’ motion to set aside the verdict, and for a new trial. If we inspéct the verdict and the judgment entered in connection therewith we shall find that the court never set aside or struck out any part of this verdict; as it was given, it stands to day. The verdict was as much a part of the record as the petition or any part of the judgment entry. And judgment in this case will bind these appellants and operate to their prejudice, they being once joined as defendants, and that, whether any specific judgment is rendered against them in the record or not. Heilly v. Hudson, 62 Mo. 386-7. “ An unauthorized judgment will be presumed to affect substantial rights, and should be set aside.” Heed'd. SouthwortJi, 71 Wis. 288. “Where issues are made, even by order of a chancellor, the finding of the jury is conclusive on the court until set aside.” Cochrane v. Moss, 10 Mo. 416; Hall v. Mxollanphy Co., 16 Mo. App. 456-7; Ins. Co. v. Piaggio, 16 Wall. 386-388; Bennett «. Butterworth, 11 How. 669; Frasohires ®. Henriques, 6 Ab. Pr. [N. S.] 251.</p> <p>The court did not err in overruling defendants’ objections to the introduction of any evidence at the beginning of the trial. The petition was formal, and certainly full and sufficient. The doctrine is firmly settled in this state that ajiy departure or insufficient averment in the petition is cured by verdict; and this court has so frequently decided this proposition that it would seem idle to cite authorities bearing upon it. The court did not err in overruling appellants’ objection to the admission of the mechanic’s lien in evidence, on the alleged ground that it is too indefinite and uncertain. Johnson v. Building Co., 23 Mo. App. 548. And there never has been a case in Missouri where an account similar to the one at bar has been held insufficient. Not a single case cited by the appellants from our state or others squints in support of the position maintained by the appellants. Simmons v. Carrier, 60 Mo. 581; Schulenburg «. Prairie Home, 65 Mo. 295. Lowis v. Cutter, 6 Mo. App. 55, is a well-known case where the items were not given in the lien account, but where the sub-contractor referred to the plans and specifications as showing what he furnished. The account was properly held bad. The court did not err in refusing the instructions offered by appellants, at the close of the plaintiffs’ case, in the nature of a demurrer to the evidence. The lien was not defective nor insufficient under the law of this state. The court did not err so as to prejudice the appellants, in giving the instructions asked by plaintiffs at the end of the trial. Instruction number one is the only one, according to the doctrine of Steininger r>. Raeman, 28 Mo. App. 594, which should have been given. Number two, which requested the jury to find whether the work of constructing the building in question was begun before or after the placing upon the property certain deeds of trust, was an immaterial issue in this case. The court did not err in refusing defendants’ instructions, numbered one to five. As we have already stated, the suit is not upon contract, but upon a quantum meruit, and in such a case if the items constitute a running account, it is manifest that all may be embodied in one lien, and in one count or cause of action in the petition. Instructions numbered four and five refused were properly refused, for they proceeded on the hypothesis that if the jury should find that the deafening was done under a certain bid, and the plastering under another and distinct bid, then, and in that event, no lien could be enforced against the building in question. The court did not err in overruling defendants’ motion to set aside the verdict, and for a new trial. It seems idle for the defendants to argue that the judgment is wrong, because it did not cover and embrace the surplusage which was embodied in the verdict. As we have seen, the court rendered precisely the kind of judgment in this case, which this court directed in the Steininger case. The court had no power to strike out the verdict, or any part of it, but it had power to do precisely what this court has said is the proper thing to do upon such a verdict: Not to try the case over, since that would make useless cost, but to enter a verdict which is responsive to the issues properly triable in such a case.</p>

<p>1. Evidence: grounds of objection. An objection against the admissibility of evidence on grounds which are untenable will not avail the objector because there exist other grounds which would have sufficed to exclude the evidence, but which were not presented for consideration in the trial court. The disregard of objections which do not advise the court and the adverse party of the true ground of objection is not error.</p> <p>2. Damages: evidence : diminution of business. Evidence showing the amount of the plaintiff’s business earnings prior to the injury complained of, and the extent to which they were diminished in consequence of the injury, was rightly admitted, as indicating a proper element of compensation to which the plaintiff was entitled.</p> <p>3. Damages: negligence : causes of injury. If the disarrangements of structure in the defendant’s cable railway were owing to defects in its original construction or design, the defendant would be liable for injuries resulting therefrom to any one in the lawful use of the street. And if the plaintiff’s injuries resulted from a widening of the slot in the railway, which widening was continually likely to occur from frost and thaw and from the passage over it of heavy freight-wagons, then the defendant was equally liable, because its duty of inspection was commensurate with the necessity for such inspection.</p> <p>4. instructions: defective construction and design. An instruction to tbe effect that the defendant would not be liable for the plaintiff’s injuries resulting from the opening of the slot, if the said opening was caused by heavy teams passing over the same, and if defendant did not know that such opening existed, and could not have known thereof from the most careful inspection in time to have remedied the defect before the occurring of the accident, was properly refused, because it omitted one possible element of the defendant’s liability, namely, that the roadbed may have been deficient in original construction and design.</p>

<p>1. Jurisdiction, Appellate: mandamus. A proceeding by mandamus against the justices of a county court to compel the repairing of a public bridge is not a proceeding in -which a political subdivision of the state, or state officers, are parties to the litigation, so as to confer exclusive appellate jurisdiction on the supreme court.</p> <p>3. Bridge Repairing: discretionary act. The duty of repairing a public bridge is discretionary with the county court, and mandamus will not lie to compel the work, unless it clearly appear that the court has abused its discretion in refusing to have it done.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge.</p> <p>Suppose it be conceded that under section 2347, Revised Statutes, 1879, it was the duty of the sheriff to notify the relator of his right of exemption and selection, yet if the relator, after a levy upon his interest in real estate, claimed his exemption therein, it can no longer be contended that such defendant is damaged by reason of the failure of the officer to so notify him, but his claim to damages must be restricted to the invasion of his right of exemption and his deprivation of the property so exempt. Though the law (sea 2347, supra) contemplates an appraisement and the setting apart to the debtor'property exempt to him under said law,’ yet the law never requires a useless and vain thing to be done. The exemption law has reference to a case where such “setting apart” is practicable and feasible. But in the case at bar, it being conceded that the interest'in the property claimed as exempt by the relator was •worth greatly more than three hundred dollars, and that the exemption in such interest was manifestly not susceptible of segregation from the balance of the relator’s interest in said real estate, which was liable to sale under execution, it follows that the only practicable mode of adjusting the rights of the parties was to sell the whole interest levied upon and pay the defendant his exemption out of the proceeds. If the plaintiff was entitled to recover at all, as this was an action to recover damages for a wrongful conversion of property of the relator, then clearly such damages are restricted to the extent of three hundred dollars. Anything over and in excess of that is vendible under execution. And clearly in respect to that the officer is no trespasser, but is justified under his writ in seizing and selling the same. But if all this should be held otherwise, as it appeared that the attorneys of the plaintiff in the execution under which the sale was had were the purchasers at the sale and knew of the claim of exemption as made by the relator, then the sale of said interest in said property was null and void, and passes no title which said relator could not avoid, and consequently he is not damaged as claimed. Lallement v. Poupeney, 15 Mo. App. 577 ; C’risp v. Crisp, 86 Mo. 630. There is no averment in the petition that even squints at the idea of exemplary damages. A recovery for smart-money or punitive damages was not in the mind of the pleader when he drafted the petition. Nor was such idea advanced at the trial, nor was any* evidence tending to show a state of case that would warrant a recovery for punitive damages.sought to be introduced. But on the contrary, the trial proceeded upon the idea that the plaintiff, having been deprived of his life estate in the real estate in question, and being the head of a family and having claimed the said interest as exempt, was entitled to recover therefor, and accordingly the instructions were so drawn and a recovery had in pursuance thereof. .</p> <p>There-is no error in the record. The undisputed facts in the case showed that Gflendon was a tenant by the curtesy in the real estate levied upon ■ by the sheriff, and the sheriff, without following the statutes in such cases made and provided, proceeded to sell the property levied upon contrary to law and without any evidence of justification and with notice of Glendon’s right, and, with full warning of the wrong being done to him, committed a trespass of the most aggravated character, by reason of which wrong and injury Glendon lost his property, for which he would be entitled to damages in a greater sum than was sued for in this case, the verdict and judgment being less than the loss conceded by the appellants. Milburn n. Beech, 14 Mo. 106 ; Walker ». Borland, 21 Mo. 289; Funk v. Dillon, 21 Mo. 295; Carrol v. Creen, 7 Mo. App. 596. The appellants’ brief concedes the. trespass committed by the sheriff, but attempts to justify it by claiming that the failure of the sheriff to comply with the law would have been a useless and vain thing. The existence of the law is a protection to the poor and unfortunate, and requires an officer intrusted with its execution to give a better reason for violating its humane provisions. The cases of Walker v. Borland, 21 Mo. 289, and Carroll «. Green, 7 Mo. App. 596, furnish sufficient authority for the measure of damages in this case. The title conveyed by the sheriff ’ s sale of the estate by the curtesy passed to the purchasers in this case, the same as any other estate, subject to execution. The case cited of. Lallement v. Poupeney, 15 Mo. App. 577, refers to a sale made of a homestead by the sheriff .without having the homestead set apart and which is in no sense a parallel case. The case of Crisp v. ■ Crisp, is of the same character. The entire interest of Glendon by reason of the tort complained of was lost and no less an amount than the value of the interest .lost would be a full compensation in damages. This rule of damages is established by the supreme court in the- case of taking property under -.an unlawful search -warrant. Melcher. v. Scrziggs, 72 Mo. 406.</p>

<p>Injunction Bond: damages : parties. A motion to assess damages on an injunction bond must be joined in by all the obligees, or good cause must be shown for the non-joinder of such as are omitted.</p>

Louis City Circuit Court. — Hon. John L. Thomas, Judge jpro tempore. The court erred in permitting plaintiff to read rules 4 and 7, of section 2, article 4, chapter 31, of the revised ordinances of the city of St. Louis, of 1881, and also sections 21 and 26 of the same article, chapter and ordinances, and in permitting testimony showing that defendant kept no watchman at the crossing as required by the provisions of these ordinances.

— Hon. James B. Gantt, Judge. (I) In an action by one partner against another, for an accounting, a claim for damages for the refusal of plaintiff to longer continue in partnership with defendant, cannot be adjudicated. (2) The articles of co-partnership fixed no limit to its existence. It was therefore determinable at the pleasure of either partner. Fletcher v. Heed, 131 Mass. 312; Walker v. Whipple, 25 N. W. Rep. 472.

<p>Appeal from the Buchanan Circuit Court. — Hon. O. M. Spencee, Judge.</p> <p>(1) The trunk was never infra hospitium. 2 Kent’s Com. [ 11 Ed.] 598, side paging ; Parsons onCont. [7 Ed ]. 155, side paging; Norcross v. Norcross, 53 Maine, 263; Clute ®. Wiggins, 14 Johns. (N. Y). 175 ; Albin v. Presley, 8 N. H. 409 ; Packard v. Norther aft, 2 Metcalf [Ky.] 439 ; Story on Bailments,,sec. 479, p. 437. (2) The primary meaning of notice is knowledge or cognizance. To give notice of a fact to a person is to bring it to his knowledge. The liability of innkeepers and common carriers is the same. • Mason v. Thompson, 9 Pick. 280 ;. Norcross v. Norcross, above cited. That of the latter does not attach until delivery, and in case of constructive delivery, such as leaving on a wharf, etc., notice must be given to the carrier. Story on Bailments, sec. 532, p. 513; Parsons on Cont. [7 Ed.] 178, side paging.</p> <p>.The trunk was infra hospitium when delivered upon the platform — the usual place of delivery — in the customary way, the innkeeper being notified that it would be there presently, requested to take care of it and having promised to so receive it. Albin v. Presley, 8 N. H. 408 ; Norcross v. Norcross, 53 Me. 263 ; Dickinson v. Winchester, 4 Cush. 120; 14 Cent Law Jour. 206.</p>

— Hon. C. W, Sloan, Judge. Statement by the court. This was an action of replevin for the recovery of the possession of two mules. The answer admitted the possession of the mules by Wert as the agent of the defendant Brown at the institution of the suit, and also that the property was of the value alleged in the petition, and denied generally the other allegations of the petition. The mules were originally the property of Lemuel Bailey.

— Hon. C. A. Anthony, Judge. The cause of action stated in the original petition in this case was for a penalty and was barred in three years. R. S. 1879, secs. 3231, 547; Remite n. Railroad, 74 Mo. 438; Barnett «. Railroad, 68 Mo. 58; Cummings v. Railroad, 70 Mo. 570 ; Rea v.. Railroad, 84 Mo. 345 ; Edwards v. Railroad, 66 Mo. 567; Carey r>. Railroad, 60 Mo. 209 ; 'Herriman r>. Railroad, 9 Am. & Eng. R. R. Oases, 339; State v. Railroad, 32 Fed. Rep. 725.

— Hon. Turner A. Gill, Judge. The courts of appeals of this state have held that the fact that a party is about to move out of the state, with intent to change his domicile, does not forfeit his right to his exemption under the execution law. State ex rel. v. Knott, 19 Mo. App. 151; Land v. Davis, 88 Mo. 436 ; R. S., sec. 416 ; State ex rel. v. Lais, 46 Mo. 108 ; R. S., sec. 2343.

— Hon. O. A. Anthony, Judge. On the trial in the court above, plaintiff read in evidence, in support of his case, the complaint, also that part of the ordinance on which the suit is based. The complaint fails to state that the city of Savannah isincorporated, and respondent did not prove or offer to prove, that it was. Defendant therefore does not know that said city was incorporated, and if incorporated, under what charter.

— Hon. D. P. Stratton, Judge.' (1) The introduction of oral or other evidence to show how many prescriptions the defendant issued to other parties than the witness, Thomas Perry, on the day charged, or from first to ninth of the same month, is wholly immaterial and irrelevant and if tending to show anything, only the commission of other offenses, in order to establish the one at bar. See text-books and other familiar authors on the subject.

— IIon. Andrew ' Ellison, Judge. Statement by the court. This action is for personal injury to plaintiff. He recovered below and defendant appeals. On the thirteenth day of March, 1886, the plaintiff was in the employ of Loomis & Snively at Bevier, Mo.

— Hon. O. M. Spencer, Judge. A municipal corporation cannot impose a condition upon its performance of a plain duty prescribed by law, and should it neglect a duty it owes a contractor, in the performance of a contract, it is liable in damages to the contractor. People v. Supervisors, 68 N. Y. 114; Bland v. Brooklyn, 31 Barb. 142; Richardson v. BrooTclyn, 31 Barb. 152 ; Lacour v. New TorJc, 3 Duer, 406.

— Hon. G. D. Burgess, Judge. (1) There was no evidence as to where the horse came npon the railroad track. Bennett v. Railroad, 19 Wis. 145; Goodbar v. Railroad, 1 West. Rep. 183; Bremmer v: Railroad, 20 N. W. Rep. 687. (2) If it should be conceded that the horse went upon the track south of the cattle-guard where there was no fence, still that was upon depot grounds and there was no duty to fence. Lloyd v. Railroad, 49 Mo. 199 ; Swearingen v. Railroad, 64 Mo. 75.

— Hon. Turner A. Gill, Judge. Statement by the court. This is an action of forcible entry and detainer. There was a judgment for plaintiff in both lower courts and defendant appeals. It appears from the evidence introduced on the trial of this case that since the year 1869 the sixty-foot strip of land in controversy has formed a part of a tract of four acres of land situated just east of the present eastern limits of the City of Kansas, between the land of I).

— Hon. Turner A. Gill, Judge. Plaintiff im error insists that the court erred in admitting testimony tending to show, and the purpose of which was to show, that the defendant was not the owner of the land which he employed plaintiff to sell. Defendant’s second instruction was wrong, and cite: Woods v. Stephenson, 46 Mo. 555 ; Bailey v. Chapman, 41 Mo. 536 ; Bell v. Kaiser, 50 Mo. 150 ; Calender v. Waddingham, 5 Mo. App. 457; Collins v. Fowler, 8 Mo.

— How. James M. Sandusky, Judge. (1) The court erred in admitting any testimony under the petition. (2) The court erred in permitting plaintiff to prove that after the accident the defendant repaired the sidewalk where plaintiff claimed to have been injured. Morse v. Railroad, 30 Minn. 465-8; . Hally v. Carpet Co., 51 Conn. 524, 531; Proof and Pleadings in Accident Cases (Black), 38, 39, 40, and cases cited ; Dillon Mun.

— Hon. Richard Field, Judge. It was error for the court to refuse judgment against Wilfong and the other signers of the appeal-bond. R. S. secs. 3041, 3043, 3062 ; Young v. Ditto, 2 J. J. Marsh. 72; Gilpin v. Hord, 3 S. W. Rep. 143 ; Cotton v. Alexander, 4 Pac. Rep. 259. . One defendant may appeal and not another. “Any person aggrieved,” etc. R. S. 1879, sec. 3039; Urtonv. Sherlock, 61 Mo. 257. The affidavit for an appeal made by Wilfong does not purport to be for Walters.

— Hon. Joseph Cravens, Special Judge. (1) The assignment, executed by respondent to appellant, October 26, 1883, which was held valid by the trial court, constituted a dissolution of the firm. JSpaunhorst v. Link, 46 Mo. 199 ; Story on Part., sec. 310.

— Hon. J. M. Davis, Judge. (1) The appellate court will interfere when the damages assessed by the jury are flagrantly excessive, and show an entire want of fairness and impartiality. Railroad r. Campbell, 62 Mo. 585; Mac. Road Co. n. Dennis, 67 Mo. 438; City v. Railroad, 84 Mo. 410. (2) The court erred in giving instructions numbered one and three asked for by defendants, for the reason that they assume as true matters in issue. Ins.

— Hon. D. A. DeArm ond, Judge. (1) The statement could not be amended in the circuit court. In an action of replevin commenced before a justice of the peace the statute requires the statement to be verified by affidavit. R. S., sec. 2882. And unless the statement is so verified it cannot be amended in the circuit court, but the action should be dismissed. Gist v. Loring, 60 Mo. 487; Madlcins v. Trice, 65 Mo. 656.

— Hon. Turner A. Gill, Judge. It is never a fraud to pay a debt except under some bankrupt statute making it such fraud. This is not fraud in fact. A debt contracted by such a fraud of the bankrupt is discharged. This position is supported by the following authorities: Neal v. Clark, 95 U. S. 704, et seq. / Wolf r>. Stiss, 99 U. S. 6, et seq:; Hennegan ». Clews, 111 U. S. 678; Strang v. Bradner, 114 U. S. 556.

— Hon. Turner A. Gill, Judge. The main question in this case is as to substitution of oral for written evidence. The only objection urged at the trial against the admission of evidence was that the same was not the best evidence of which tin case was in its nature susceptible, but secondary evidence.

— Hon. D. A. DeArmond, Judge. (1) It being admitted tliat defendant was plaintiff ’s tenant, the burden was on defendant to show that the rent had been paid. Tarnell v. Williams, 14 Mo. 619. The only issue which could possibly arise as to rent of 1885 was as to payment of the rent. Upon that issue the burden was on defendant. Basan v. Dillaye, 8 How. Pr. 273; Fullerton v. Banlc, 1 Pet. 604-617.

— Hon. D. A. DeAkmond, Judge. Instruction number two given by the court, to the effect that jmima facie the property if reduced to possession became the property of the husband, was incorrect. If so reduced to p ossession by him prior to act of 1875, the property became absolutely his. Woodford v. Stephens, 51 Mo. 443 ; Kedwell v. Kirhpatrich, 70 Mo. 214; Burns v. Banyert, 16 Mo. App. 22. Same as in F. C. Crum et al. vs. same defendants, ante, p. 591.

— Hon. Turner A. GrILL, Judge. The right of action upon the note sued upon accrued on the twenty-third day of January, 1869, and was consequently barred by section 3229, Revised Statutes ; unless it was saved by the exception created by section 3236, Revised Statutes. The exception created by the latter section is limited to those cases where the defendant is a resident of the state at the time the cause of action accrues. Orr v. Wilmarth, 95 Mo. 212.

— Hon. J. H. Slover, Judge. The following is the execution referred to in the opinion: “ The state of Missouri, to the sheriff of Jackson county, greeting.

— Hon. J. H. Sl'oveb, Judge. (1) No evidence having been offered as to tbe law of Kansas tbe courts of tbis state will presume that tbe general principles of tbe common law prevail there. Morrissey r>. Ferry Co., 47 Mo. 521, 525.

— How. D. P. Stratton, Judge. Statement of the case by the court. Held: at least five days before the election.” Section sixteen provides for the qualification and residence of voters, as follows: “Any person shall be a qualified voter in the city of.

— Hon. D. P. Stratton, Judge. Statement of the case by the court. In July, 1886, and for some time prior thereto, the firm of Sparks & Son were engaged in a general merchandising business in Barton county, having one store in the town of Denison, and another store in the town of Liberal, said two towns adjoining each other. Sparks & Son had become indebted to their wholesale creditors in sums aggregating $3,343.87.

— Hon. Andrew Ellison, Judge.. Statement: of the case by the court. This is an action on a policy of insurance and the question on the trial below was whether or not the policy had been cancelled before the loss occurred. The circuit court instructed the jury that there was no evidence tending to show a cancellation and the propriety of this action is the matter now here for review. The evidence tended to establish the following state of facts.

Cross-Appeals from the Vernon Circuit Court. — Hon. D. P. Stratton, Judge. (1) The court erred in giving instruction number one, at request of plaintiff. Plaintiff did not allege any damage, nor claim any, for the mere trespass to his land. Wright v. Jacobs, 61 Mo. 19; White v. Rush, 58 Mo. 105 ; Armstrong v. City, 3 Mo. App. 100. (2) The court erred in overruling defendants’ motion for a new trial because of the error in giving said instruction.

— Hon. J. M. Davis, Judge. (1) The petition does not state a cause of action. It is alleged in the petition that by the policy so much was insured on the dwelling-house and so much on the different classes of chattels mentioned in the policy. There is no allegation that the different classes of goods were worth so much. There is no allegation of what the goods were worth in classes.

— Hon. C. H. S. Goodman, Judge. Statement by the court. This is a suit begun before a justice of the peace to recover the value of a cow killed by defendant’s train within the corporate limits of the city of Chillicothe, at a point where the defendant might have fenced its track without inconvenience to the public, or annoyance to its own business. The plaintiff’s evidence shows, without contradiction, the killing of the cow as alleged in his statement, and her value.

— Hon. D. P. Stratton, Judge. Appellant was not authorized under the law in filing his bill after the time allowed him by order of the court. Appellant will contend that as the court adjourned over to a time beyond August 1, he was therefore relieved of his duty to comply with the order of the court. This is not the law.