Volume 34 — Missouri Appeal Reports

— Hon. J. H. Stover, Judge. (1) The court erred in permitting testimony of fraud on the petition. Fraud must be pleaded; “ the facts constituting the fraud must be stated.” Bliss on Code Pleading, sec. 211; Pier n. Heinrichoffen, 52 Mo. 333 ; Scott v. Mobards, 67 Mo. 289 ; Burgert v. Borchert, 59 Mo. 80; Clark v. Clark, 86 Mo. 114.

— Hon. J. H. Slover, Judge. (1) There was no delivery to the carrier at the time the injury sued for occurred. Hutchinson on Carriers, sec. 82, p. 64. (2) If the delivery was complete, then the contract in evidence related back thereto, and destroyed the cause of action. O'Brien v. Kinney, 74 Mo. 125 ; Railroad v. Cleary, 77 Mo. 634 ; Atkinson v. Railway, 80 Mo. 213; Myers v. Railway, 90 Mo. 98.

— IIon. J. M. Davis, Judge. (1) Was there a conflict in the evidence upon any material point in the case ? If so, the cause must be reversed. Covey v. Railroad, 86 Mo. 635; Meyer v. Broadwell, '83 Mo. 671. There was evidence tending to prove plaintiff’s theory of the case, and the cause should have been submitted to the jury. Baum v. Fry-rear, 85 Mo. 151 ; Groll v. Tower, 85 Mo. 249 ; Moody v. Deutch, 85 Mo. 237 ; Sage v. Reeves, 17 Mo.

— Hon. Richard Field, Judge. (1) The court below erred in admitting illegal and incompetent evidence on the part of defendant against the objections of and to the prejudice of plaintiff. 1 Greenl. Ev. (4Ed.) secs. 51, 52; State ex rel. v. Roberts, 62 Mo. 338, at 390; Brooks v. Blackwell, 76 Mo. 309 ; Weil v. Poston, 77 Mo. 287; Frederick v. Allgaier, 88 Mo. 598; Stumpf v. Mueller, 17 Mo. App. 283.

— Hon. Richard Field, Judge. Statement by tlie court. This is a proceeding in equity by injunction brought by the Sedalia Brewing Company against the Sedalia Waterworks Company to enjoin the latter from cutting off the supply of water to the former.

— Hon. Turnee A. Q-ill, Judge. (1) The petition does not state a cause of action, and the court erred in overruling defendant’s objection to the introduction of any evidence by the plaintiff. Railroad v. Stupak, 28 A. & E. R. R. Cases, 823; Bell r. Railroad, 86 Mo. 211; 2 Thompson on Negligence, 1253, 1254; Hughes r. Railroad, 8 W. Rep. 104.

<p>Appeal: county court : public roads. An appeal lies to the circuit court from the action of a county court in establishing or refusing to establish a public road.</p>

<p>Appeal from the Douglas Circuit Court. — Hon. A. H. Livingston, Special Judge.</p>

<p>Practice, Appellate: bill of exceptions : record proper. Where the assignments of error relate to matters of exception only, and no bill of exceptions appears in the rec ord, and upon examination no error is discovered in the record proper, the judgment will be affirmed.</p>

<p>1, Indictment: foreman’s indorsement. There being no statutory specification of the place on an indictment where the indorsement by the foreman of the grand jury shall be entered, no reason appears why an entry of the proper formula and signature at the foot of the indictment should not be held a sufficient compliance with the</p> <p>2. Criminal Haw: insufficient proofs. Under an indictment founded upon section 1358, Revised Statutes, which forbids that any person shall “ wilfully and maliciously * * * throw down or open any gate, bars or fence and leave the same down or open,” etc., evidence which tended to prove nothing more than that the defendant “ threw down the fence of R. H. Goodell, and then and there went through and across the premises of said R. H. Goodell without his knowledge and consent,” was insufficient fora conviction, and the defendant was entitled to his discharge.</p>

— Hon. J. P. Hale, Judge. The proceedings of the board of equalization and. appeals will not be reviewed by injunction. Beam v. Todd, 22 Mo. 90. In this state the law seems to be well settled that the collection of taxes will be enjoined on two grounds only: When the property sought to be charged with the tax is not subject to taxation, and where the tax is one unauthorized by law.

— Hon. Thomas H. Bacon, Judge. The court erred in permitting evidence to be introduced on the petition. It does not state facts to constitute a cause of action. If the contract limits him to stipulated damages, he must recover on that or not at all, but from the petition it cannot be discerned what proportion to the whole value, the damage to any or all the sheep bore. R. S. 1879, sec. 8511. Scott v. Robards, 67 Mo. 289; Banltston v. Farris, 26 Mo. 176.

<p>1. Criminal Law: selling on Sunday. The “ articles of immediate necessity ” which are made an exception in the statutory provisions against exposing to sale “any goods, wares, etc., on the first day of the week, commonly called Sunday,” must be of a necessity that is imperious, and that could not reasonably have been foreseen or guarded against.</p> <p>2. Criminal Law: selling tobacco on Sunday. It was not the legislative intent to include tobacco in the application of the words “ drugs or medicines,” which are permitted to be exposed to sale on Sunday. Nor is tobacco to he considered an article of food, and therefore within the exception extended to “ provisions.”</p> <p>3. Criminal Law: articles oe necessity. Even upon the supposition that tobacco is to be regarded as a necessity with persons addicted to the habitual use of it, this would be no answer to the charge of exposing the article to general sale on Sunday, without reference to the habits of purchasers.</p> <p>4. Criminal Law: hotels and restaurants. The law which forbids the selling of tobacco on Sunday cannot be* construed to exempt hotel or restaurant-keepers from its mandates, on the ground that such sales are within the line of their lawful occupations, and are required to supply the needs of their guests and customers.</p>

M. Gr. McGteegor, Judge. In an attachment suit, where the goods are levied on as the property of the defendant, by plaintiff, when a third party interpleads and claims the goods by purchase, made in good faith, and claims to have paid for the goods with money, or notes, or both, and claims exclusive possession at the time of attachment, and the plaintiff answers the interplea, denying the allegations of the interplea (as in this case), the issue is made up for trial, and is…

— Hon. J. F. Hale, Judge. Defendant’s first instruction tells the jury to pass upon the lawfulness of plaintiff’s possession, which is error. McOartney v. Alder son, 45 Mo. 35 ; Michau v. Walsh, 6 Mo. 346; Krevet v. Myer, 24 Mo. 110 ; Beeler v. Cardwell, 29 Mo. 72.

— Hon. J. F. Hale, Judge. It has been held repeatedly by the higher courts of this state that section 809, Revised Statutes, contemplates an actual collision of the railroad company’s cars or engine… Held: “Where it appears from the evidence that the blood .and carcass of the animal are found upon the track at a point which was not, but should have been, fenced, it will be presumed, in the absence of evidence to the contrary, that it entered upon the track at that point.”

— Hon. H. C. O’Bryan, Judge. When suit is brought for double damages against a railroad for killing stock, it must be in the same or an adjoining township. R. S., sec. 2839. This is a jurisdictional fact which must affirmatively appear by the record, and must be not only averred in the statement, but must be proven. Wiseman «. Railroad, 30 Mo. App. 516. This being a jurisdictional fact, it is questionable whether it could be amended in the circuit court.

<p>Appeal from, Gape Girardeau Court of Common Pleas. Hon. Robert L. Wilson,. Judge.</p> <p>■ The petition does not state that defendant promised to pay any balance found to be due on settlement to plaintiff. This we admit is cured by verdict, but the jury should not have been told by the court that a settlement without a promise to pay the balance found to be due was conclusive on the defendant. The instruction did not even tell the jury that upon an account stated the law presumed that the party in arrears promised to pay the balance due, but, on the contrary, that there need not be any kind of promise, either expressed or implied, or that the law presumed a promise, and that their verdict should be for the plaintiff in the sum so found to be due. Whether on a given state of facts the transaction amounts to an account stated is a question of law and not of fact. Powell v. Railroad, 65 Mo. 658; Railroad v. Kimmel, 58 Mo. 83; Brown v. Kimmel, 67 Mo. 430, and cases cited; 1 Greenl. on Ev., sec. 212; 2 Greenl. on Ev., sec. 126, et seq.</p> <p>The instructions told the jury in effect that before they could find for plaintiff in any sum they must believe from the evidence that such settlement took place, that there was found due plaintiff the sum sued for, and that defendant agreed and promised to pay the same to plaintiff. After a full* consideration of the instructions given by the court in this case, it will be found that, taking them as a whole, they fairly embraced the law applicable to the case and were in no way calculated to mislead the jury, and where that is true the court will not interfere with the verdict of a jury based on them. Reilly v. Ry. Co. 94 Mo. 611 ; Oxford v. McNally, 22 Mo. App. 390 ; Norton v. City of Moberly, 18 Mo. App. 458, 459.</p>

Louis City Circuit Court. — IIon. Leroy B. Yalliant, Judge. As in a mechanic’s lien suit it is necessary to set out and describe the ground on which the building is erected and in which the material was used, so it is necessary to prove the ownership of the ground and the ownership of the improvements. 65 Mo. 545.

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. A written contract, plain and unambiguous, cannot be varied, explained or qualified by any testimony. 2 Pars, on Cont. (3 Ed.) p. 61; Addison on Cont. 841 ; County of Johnson ■». Woods, 84 Mo. 489. Nothing can be suffered to overthrow the plain meaning of terms. Bish. on Contracts, sec. 412 ; Bishop v. White, 68 Me. 104. Every word must be construed, and the intention of the parties gathered from the writing itself.

Louis City Circuit Court. — Hon. George W. Lubke, Judge. The trial court thought as the bond read the appeal was taken by L. Hallock for himself and his co-defendants, that if the judgment was affirmed as to any of the defendants, the judgment must be against the bondsmen.

<p>Appeal from, the St. Louis City Circuit Court. — Hon. George W. Lubice, Judge.</p> <p>The court erred in excluding from the jury proper nnd legal evidence offered by appellant. In refusing to Admit the practices of Liss as caterer in purchasing oysters and provisions for respondent, as its agent, and also in refusing to admit evidence of a custom by which caterers have, by their occupation, general authority to purchase provisions for the club or society which they cater for. These being circumstances from which agency may be presumed. Story on Ag., sec 77 ; Hull v. Jones, 69 Mo. 587. Under the circumstances good faith requires that the principal shall be bound by the acts of an agent whom he has placed in a position in which he could hold himself out as being competent to deal with an innocent party to the detriment and injury of the latter. Barlcer v. Railway, 91 Mo. 159 ; Story on Ag., sec. 127 and note. The court erred in giving instruction three to the jury for defendant, and in its construction therein of the written contract read in evidence by respondent. It was error to instruct that Liss, the caterer, was under said con tract an independent contractor of the catering department of respondent. The second clause of the contract gives to Liss “the profits and revenues which he may derive or receive from the sale of liquors, cigars and refreshments and none other.” Liquors, cigars and refreshments are synonymous and convertible terms. The word refreshments, being a general term and following the particular words liquors and cigars, is by the rule of construing contracts to be restricted to articles of like nature, and similar kind of liquors and cigars. Neither does the fourth clause of the contract justify the court’s construction. Liss is to serve, not provide or furnish, viands, liquors, cigars and refreshments. But there is no provision in the contract by which he is to derive a profit or revenue from the viands which he is to serve.' By clause two, he is to get a revenue and profit from the three things, liquors, cigars and refreshments, described in clause four and none other. Neither clause two nor four provides for a profit on viands. Clause two and clause four when construed together, still leave the instruction erroneous. Lathers v. Keogh, 39 Hun. (N. Y.) 576; Hawley v. Railway, 17 Mich. 56; Trans. Co. v. Moore, 5 Mich. 386.</p> <p>The testimony in this case presents no facts which would indicate that Jack Liss, as a caterer, furnishing food and drink to the members of the Harmonie Club, was the authorized agent of the club for the purpose of making purchases of goods in its name and binding it therefor. On the contrary, the testimony of the several witnesses examined for respondent and the written contract introduced in evidence clearly show, that Liss was an independent contractor operating in the Harmonie Club for remuneration to himself alone. The instruction of law asked by appellant at the close of the case was properly refused. The first part of the fourth paragraph of the contract is that “said Liss agrees faithfully to serve said club in his capacity as caterer.” As such caterer he “agrees to serve the members'of said club with good, wholesome, proper wines, liquors, cigars and refreshments, at such prices to be determined upon by the house committee of said club ; and agrees to keep the necessary help for proper service in the club house.” Webster defines the word “serve” as used in this paragraph, “to supply with food,” but the meaning of the word is fully defined in the contract itself. Paragraph two provides, “said Harmonie club hereby gives and releases to said Jack Liss all the profits and revenues which he may derive or receive from the sale of liquors, cigars and refreshments, and none other.” It is thus made apparent that by construing the second and fourth paragraphs together “to serve” in thé fourth paragraph is to “furnish and sell” to the members, “at such prices to be determined upon by = the house committee.” Li@s is to keep the profits and the revenues from his sales as caterer at least from the liquors, cigars and refreshments, and as the contract does not express in the second paragraph what becomes of the revenue and profits derived from the sale of the “viands” as expressed in the fourth paragraph, this omission is supplied by the testimony of the witnesses, Fraley, Singer and Glaser, who state that Liss received, these moneys for himself and that the club derived nothing from these sales. The contract and the testimony of all the witnesses show conclusively and without contradiction that Liss was an independent contractor of the catering department of the respondent’s club, and we submit that the instruction of law numbered three, asked by and given for respondent to the jury, was proper.</p>

<p>Appeal from, the St. Louis City Circuit Court. — Hon. Leroy B. V allí ant, Judge.</p> <p>The pleadings in this case admitted that plaintiffs have signed a receipt and release to the agent of defendant with full knowledge that the deductions in controversy in favor of William McCully and William S. Stewart had been made, and the court erred in overruling defendant’s objection to any evidence being offered in the case. Dean v. Carpet Co., 13 Mo. App. 175; Story Ag., sec. 300; Claflin ». McDonnough, 33 Mol 412; Mace v. Cincinnati, 1 Ohio St. 268 ; Wolf v. Marshall, 52 Mo. 167; Reisenleiter v. Lutherische Kir che, 29 Mo. App. 291; Savings Institution v. Kehlor, 7 Mo. App. 158; Ragin v. Baldwin, 8 Cent. L. J. 309. The letter of Cummiskey to plaintiffs was exactly similar to the instructions given the Adams Express Company, which fully explained the payment of the money and the condition upon which the plaintiffs were entitled to the money. The acceptance of the money by the plaintiffs with knowledge of the condition under which they were entitled to it constituted a voluntary payment of the sums of money deducted, so that plaintiffs could not recover in this case, because they could not restore Cummiskey or his agent in the condition they were before the payment was made, because the deductions were voluntarily made by them. Story Ag., sec. 800 ; Savings Institution v. KeTilor, 7 Mo. App. 158 ; Moore t). McCullagTi, 8 Mo. 401; Adams v. Helm, 55 Mo. 468 ; Kronenberger v. Binz, 56 Mo. 157. The court in this cause instructed the jury to find in favor of the plaintiffs for the twenty dollars paid to William S. Stewart which was also included in this receipt and payment. This was error. Because it ignored the effect of the receipt and the deduction authorized by the receipt which constituted a voluntary payment. Because it was a payment made to an attorney of record on behalf of one of the plaintiffs in the case without any notice of a want of authority. The court committéd error. in the instruction in reference to the payment of the one hundred and twenty-five dollars. Because the court ignored the effect of the payment made through the Adams Express Company and the voluntary deductions authorized by the plaintiffs. Because the previous written authority in the paper signed by the plaintiff to pay the money to McCully fully authorized the commissioner appointed by the court to make the payment to McCully. Because there was no evidence that the authority was revoked before the payment was made. Because there was positive evidence to show that the payment was made before notice of any objection to pay the same. Because if an objection had been made it was too late as -the transaction was executed when the receipt was signed by the plaintiffs through the agency of the Adams Express Company. Another rule exists which precludes the recovery of this money, and that is that the sum of money paid voluntarily under no mistake of facts cannot be recovered back. There could be no mistake, as the plaintiffs admit the receipt of Cummiskey’s letter, which fully explains the deductions that were made, so that these deductions constituted an absolute payment of the money.</p> <p>The testimony of both plaintiff and defendants agreed that the twenty dollars paid to Stewart was not paid on the order or authority of Mrs. Fenlon, but by Cummiskey on his own motion and responsibility. As to the alleged payment of the one hundred and twenty-five dollars to McCully, on the written order of Mrs. Fenlon, yve claim that the paper, exhibit A, which the-defendants were pleased to designate and regard as her written order, was no more a written order and conferred upon Cummiskey no more authority to pay McCully any money than was any of the numerous show-bills posted on the fences in this city. But supposing that the paper, exhibit A., did constitute an. authority to Cummiskey to pay McCully the one hundred and twenty-five dollars (as was erroneously assumed, by the trial court in its instructions), unless such authority was revoked before McCully was paid, yet we take it that it cannot be seriously contended that said paper, exhibit. A., warranted Cummiskey in paying McCully, provided Cummiskey was notified of Mrs. Fenlon’s objection thereto before he paid McCully. The letter was notice to him whether he read it or not.. Henry CountyAllen, 50 Mo. 231; Koonts v. Bank,. 51 Mo. 275. And the words “ minus one hundred and. forty-five dollars,” written in the receipt, which Cummiskey received and examined before paying McCully also constituted notice to him. So that the uncontradicted proof was that Cummiskey paid McCully after notice not to do so. There was no pretense of any right on Cummiskey’s part to withhold from her the six hundred and fifty-one dollars, and his purpose to compel her to accede to the deductions in dispute by withholding from her the six hundred and fifty-one dollars until she did so, was neither lawful nor praiseworthy.</p>

— Hon. Rudolph Hirzel, Judge. Instructions calculated to mislead the jury should not be given. Donahoe v. Railway,' 83 Mo. 560; Chouteau v. Iron Co., 82 Mo. 73 ; Greer v. Parker, 85 Mo. 107.

— Hon. Rudolph ;| Hirzel, Judge. Dower-is a statutory right vested in the widow, of the one third part of all the lands, etc., whereof her husband or any person to his use, etc., was seized during the marriage, etc., during her natural life. R. S. 1879, sec. 2186. And no act, deed or conveyance executed' or performed by the husband without the assent of the wife, etc., shall prejudice the right and interest of the wife, etc. R. S. 1879, sec. 2197.

<p>1. Statute of Limitations: lex loci. If a contract be made within a jurisdiction where the statute law extinguishes a debt upon the expiration of the period of limitation, the same law will follow the liability into any other jurisdiction. But if the lex loci contractu merely denies a remedy after the statutory period, the lex fori will prevail.</p> <p>2. Promissory Note: failure of consideration. The defense of failure of consideration does not arise upon allegations to the effect that, when the note sued on was given, both parties believed that a suit on account of the same indebtedness was pending in another state, and was thought to be extinguished and discontinued by the note given — without any allegation of an agreement concerning such supposed effect — whereas in truth a judgment had already been rendered in the foreign suit, and the creditor’s attorney declared himself powerless to deliver to the maker the note there in judgment. There was no distinct issuable matter in these allegations, and the trial court did not err in striking them out of the answer.</p> <p>3. Equity: mistake of fact. A right to relief in equity, on the ground of a mistake in fact, must be founded on mistake as to some fact which constituted a material inducement to the making of the contract. A mistake concerning a matter which could not in any event change the condition of the parties, whether truly or falsely understood, can furnish no basis for an equitable defense.</p>

— Hon. H. C. O’ Bryan, Judge. The submission was a general one of all controversies between the parties, and includes all matters of dispute between them at that time. Preem. Judg. [ 2 Ed.] p. 345, secs. 321, 322 ; Harris v. Mfg. Co., 5 Am. Rep. 549. And parol evidence is inadmissible to show that the arbitrators awarded concerning a matter which was not in controversy at the time of the submission. DeLong v. ■Stanton, 9 Johns. 38.

Louis County Circuit Court.— Hon. William W. Edwards, Judge. The verdict is against the evidence and the weight of the evidence. The court committed error in writing out and substituting another verdict for the original verdict of the jury, and the • j ury improperly assented thereto.

— How. C. C. Bland, Judge. The verdict was wholly unsupported by evidence.' There was no testimony that the fire set by defendant caused the damage, and for that reason the judgment should be reversed. Spooner v. Railroad, 23 Mo. App. 403; Brewery Co. v. Bodemann, 12 Mo. App. 573 ; O'Donnell v. Railroad, 7 Mo. App. 190. The court erred in giving the instruction given for plaintiff.

<p>1. Practice, Appellate: general objections to evidence. General objections to the admissibility of evidence, which do not state the specific grounds of objection, will not be considered by an appellate court.</p> <p>2. Garnishment: voluntary gift. A voluntary gift of money by an attachment debtor to the garnishee at the time of the attachment and garnishment, is void as against the attaching creditors, and the garnishee will be liable for the same under the garnishment.</p>

— Hon. Thomas H. Bacon, Judge. The court erred in excluding the testimony of the witness Fyfer. It was not proposed to examine the witness as “as to the contract or cause of action in issue and on trial.” The object was to prove that he, the witness, as a member of the firm of J. Kirkbride & Co., had received the letter afterwards read in evidence in due course of mail.

Hon. Thomas IT. Bacon, Judge. The petition for divorce in the case of Hansford v. Hansford, number 5401, contains all the jurisdictional averments.

— Hon. James J. Gideon, Judge. An agent, authorized to sell property of his principal upon specified terms, is not entitled to a commission for selling or presenting a purchaser willing to take the property upon terms other than those specified, or upon terms not authorized or approved by the principal. Story on Ag. [5 Ed.] secs. 21, 62, 76; Pierce v. Powell, 57 111. 328 ; Hoyt v. Shepherd, 70 111. 309 ;. Ward r>. Lawrence,79 111. 295.

<p>1. Justices’ Courts: identification op statement. "Where a paper was used, without objection or exception, in the circuit court, on a motion to dismiss, as the statement which had been filed in the cause with the justice of the peace, and no attempt was made to show that it had not come from the proper custody, it was, as in all other cases, the duty of the court to determine the identity of the paper before considering its effect; and an appellate court will not interfere with such determination, except upon a plain showing that it was wrong in point of fact.</p> <p>2. Justices’ Courts: effect of appeal. The taking of an appeal from a justice of the peace to the circuit court waives all errors and imperfections in the service of process, and is equivalent to a general appearance to the merits in the circuit court.</p> <p>Justices’ Courts: jurisdiction : adjoining townships. In an action for an injury which must have been committed either in the township where the justice of the peace resides, or id an adjoining township, if the necessary jurisdictional fact was clearly proved in the circuit court, and the same fact is admitted by counsel for the appellant in their printed argument before the appellate court, there can be no reversal on the sole ground that such jurisdictional fact did not appear in the statement filed with tha justice.</p>

Charles Circuit Court. — Hon. William W. Edwards, Judge. The petition does not state facts sufficient to constitute a cause of action. It does not show that plaintiff, or the usees are the real parties in interest, nor that plaintiff is “a trustee of an express trust,” nor does it describe any particular property. The court erred in allowing any evidence to be given. R. S. 1879, p. 592, sec. 3462 ; lb. 1879, p. 601, sec. 3511.

Hon. Thomas H. Bacon, Judge. The signing of a note in blank by respondent and then entrusting it to Irvine Chapman, gave him authority to fill the blanks in such a way as not to vary or alter its material terms, or pervert its scope with stipulations repugnant to what was plainly and clearly expressed in the instrument. Dan. Neg. Inst. [ 3 Ed.J secs. 142, 143, 144; Ab’s. Trial Ev. 408; Abbott v. Rose, '62 Me. 194; Berwick v. Huntress, 53 Me. 89; Story Prom.

— Hon. Thomas H. Bacon, Judge. The contract having been in custody of plaintiff and being offered in evidence by him, the endorsement thereon signed by him must be considered as in evidence also. This endorsement, notwithstanding the fact that by its terms, it purports to sell the corn to Hyatt & Burkholder, must, if it vests them with any rights, operate as a transfer of the contract by way of assignment.

Louis County Circuit Court. — Hon. William W. Edwards, Judge.

Genevieve Circuit Court. — Hon. James D. Fox, Judge. The words set out in the first, second, third, fourth, fifth and seventh charges in plaintiff’s petition, are not actionable of themselves. Salvatelli v. Ghio, 9 Mo.

— Hon. M. G. McGregor, Judge. The record shows the petition for the election was received by the board of aldermen on the twenty-seventh day of June, 1887, and the election was ordered… Held: which was within sixty days of the local option election. The validity of an election cannot be tested in a mandamus proceeding. 2 Dill. Mun. Cor. (3 Ed.) section 892; High on Extraordinary Rem. (2 Ed.) secs. 53, 79; McCr. Elec. (2 Ed.) section 320; Barnes ®. OottschaTk, 3 Mo. App. 111.

Hon. Thomas H. Bacon, Judge. The note, as set out in the defendant’s offset, was, as shown by the testimony of the defendant and John B. Lewis, duly assigned and endorsed by plaintiff over to the defendant for valué, and it was also proven by the defendant, as well as admitted by the plaintiff, that the maker of the said note was a non-resident of the state of Missouri, and that, as the note was not payable to the “order” of any one, it was not a negotiable piece of paper,…

— Hon. W. S. Wallace, Judge. This case, it is conceived, turns upon the correct interpretation of section number 7125, as amended in Session Laws 1885.

— Hon. W. I. Wallace, Judge. (1) The information does not charge any offense. (2) The variance between the name of Al. R. Miller, mentioned in the information, and that of A. R. Miller in the letter, is fatal, and proof of letter sent to A. R. Miller will not sustain prosecution for sending to Al. R. Miller. They are not idem sonas.

— Hon. C. A. Anthony, Judge. (1) Our supreme court say that when one of the parties to a litigation is silenced by death the other shall be silenced by law. 72 Mo. 133; Chapman v. Doughty, 87 Mo. 617; Bank v. Hurst, 25 Mo. App. 170.; Mien v. Thurman, 90 Mo. 433 ; Ring v. Jamisony 66 Mo. 424; 64 Mo. 142. (2) The plaintiff, O. GL Jesse, was incompetent as a witness for any purpose. Mien v. Thurman, 90 Mo. 433. Also see sec. 4010, statutes.

— HoN. Cyrus A. Anthony, Judge. Appellant and respondent did not sustain the relation of trustee and cestui que trust, after respondent became twenty-one years old, but of debtor and creditor ; and respondent’s right of action at law accrued at that time, and was barred at the end of five years.

— Hon. C. n. S. Goodman, Judge. (1) The verdict is against the evidence. Plaintiff failed to introduce any evidence tending to show that the proceeds of the note in suit went into the business of the firm, or that the firm derived any benefit therefrom. (2) The court erred in giving instruction numbered 1 for plaintiff.

Anpealfrom the Gentry Circuit Court. — Hon. C. S. H. Goodman, Judge. Statement of the case by the court.

— How. C. H. S. Goodman, Judge. (1) Where the subject-matter has been in litigation before, it will be deemed res adjudicata, unless the evidence precludes all hypotheses of the merits having been passed upon. Baxter v. Aubery, 41 Mich. 90; Peter sine v. Thomas, 28 Ohio St. 596; Dickerson v. City of Mexico, 58 Mo. 61; Freem.

— Hon. C. H. S. Goodman, Judge. The testimony of claimant Ashbrook shows conclusively that he did not accept the order in payment of the note. To have that effect it must be expressly agreed that it should be taken in satisfaction. Appleton v. Kenn on, 19 Mo. 637; Leabo v. Goode, 67 Mo. 126; Riggs v. Goodrich, 73 Mo. 108; Wiles v. Robinson, 80 Mo. 47; Banh v. Peterman, 21 Mo. App. 512. Plaintiff’s second, third, fourth and fifth instructions correctly declared the law.

— Hon. Andrew Ellison, Judge. Hombs was in possession of tlie goods in question, under a purchase from Johnson, and payment of a fair price, and was prima-facie owner. Corbin seeks to impeach the bona fldes of this sale and affirms in his answer that Hombs was a mala-jide purchaser, and knew that defendant held executions against Johnson.

— Hon. D. P., Stratton, Judge. The following is the indictment in this case: “ State op Missouri, “ County op Cedar, ss* - “In the circuit court of Cedar county, October term, 1886.

— Hon. D. P. Stratton, Judge. (1) The cestui que trust alone can enter satisfaction of the record. R. S. 1879, sec. 3311. The payee of a note, secured by a deed of trust, has no authority to enter satisfaction of the mortgage, after he has parted with his interest in the note. Lee O. Clark, 89 Mo. 553; Haggaman v. Button, 91 Mo. 519 ; Ewing v. 8 lid-ton, 34 Mo. 513; Boatman's 8. B. v. Crewe, 84 Mo. 478.

— Hon. Turner A. Gill, Judge. (1) In order to maintain an action to quiet title under the statute the plaintiff must be in the actual possession of the real estate at the time of commencing his action. A constructive possession, or such a possession as the law imputes to, ownership, is not sufficient.

— Hon. Turner A. Gill, Judge. (1) The memorandum or agreement, signed by Willock, as agent, should not have been admitted in evidence over the objection of the plaintiff, for the reason that neither Casper nor plaintiff authorized by writing the making thereof, nor did eith er of them ratify by writing the making of the same. (2) The effect of this statute (sec. 2509) cannot be evaded by the doctrine of part performance. This suit was instituted before a justice of the peace.

— Hon. H. P. White, Judge. (1)' The record fails to show that Worthen possessed jurisdiction of the case, as it nowhere appears that Riley was charged with the commission of any offense within the limits of the City of Kansas. Amended Charter of Kansas City, sec. 15, p. 22. The failure of the record to disclose jurisdiction in the first instance is fatal to this proceeding. R. S., sec. 2077, p. 343. It does not appear that Riley was “legally in custody.” R. S., supra.

— Hon. Turner A. Gill, Judge. Affidavit is insufficient by stating “ affiant says complaint is true in substance.” We are not informed what affiant regarded as “substance,” hence, cannot know what he intends to verify and what not. Remington Co. v. Cushen, 8 Mo. App. 528 ; Crawshaw v. Wright, 5 Mo. App. 577; Cunningham v. Goelet, 4 Denio, 71 ; Fxparte Bank, 7 Hill, 177. Affidavit is jurisdictional in this kind of action. Fletcher v. Keyte, 66 Mo. 285.

- — Hon. J. M. Slover, Judge. Statement of the case by the court. This is an action upon a promissory note.

<p>Appeal from the Jackson Circuit Court. — Hon. J. H. Sloven, Judge.</p> <p>(1) The appellant had a right to demand a title free from reasonable doubt. Fry on Specific Performance, secs. 573-574; Mastín v. Grimes, 88 Mo. 478 ; Hymers v. Branch, 6 Mo. App. 511; Gaus v. Renshaw, 2 Pa. St. 34; Church v. Thompson, N. Y, 5 Cent. Rep. 503 ; R. S. 1845, p. 431, secs. 8, 31. (2) The deed from Mobillon W. McGee, dated December 20, 1853, did not pass the dower of his wife, Mary E. McGee. Whiteley v. Stewart, 63 Mo. 361; McFadden v. Rogers, 70 Mo. 421; Bank v. Rice, 4 How. U. S. 225 ; Heaton v. Fryberger, 38 Iowa, 185; Laws 1845, p. 431, sec. 8. (3) In any view the defect in said deed rendered the title doubtful, it affected the title to such an extent as to make it less marketable. This would justify the appellant in refusing it. Gaus v. Renshaw, 2 Pa. St. 34; Mastin v. Grimes, 88 Mo, 478 ; Hymers v. Branch, 6 Mo. App. 511. (4) As the objection to the title was considered by the parties and respondent agreed to procure a quitclaim deed from Mrs. McGee within ten days it was incumbent upon him so to do, as time was of the essence of the agreement. Chitty Contr. 433; Wisw'ell v. McGoun, 2 Barb. 270; Bank v. Hagner, 1 Pet. 467 ; Conway r>. Case, 22 111. 127. (5) In an action at law, such as the present, time is presumed to be of the essence of the contract. The appellant was denied the benefit of that presumption by the court, and in this there was error. Chitty Cont. 433; Wiswell v. McGoun, 2 Barbour, 270; Bank v. Hagner, 1 Pet. U. S. 467 j Conway v. Case, 22 111. 127; Benedict v. Lynch, 1 Johnson, 370 ; Hill v. School District, 17 Mo. 316 ; Lawson’s Presumptive Evidence, 576. (6) Nor was that legal presumption overcome by the evidence; there was no evidence of waiver or a different intention ; on the contrary all of the evidence showed that ten days was agreed upon as the limit.</p> <p>(1) Having presented the case to the trial court, by his own instruction, as depending upon whether the time stated for the performance of the contract between the parties, as extended, was intended to be of its essence, the plaintiff cannot now be heard to urge a different theory, and, much 1 ess, can he be allowed to insist that the instruction referred to was erroneous. Walker v. Owen, 79 Mo. 563, 568 ; Bank «. Hammerslough, 72 Mo. 274, 277; Clifton v. Sparks, 82 Mo. 115, 119 ; Holmes v. Braidwood, 82 Mo. 610, 615 ; Mus ser v. Adler, 86 Mo. 445, 449; Loomis v. Railroad, 17 Mo. App. 340; Mfg. Co. v. Pratt, 21 Mo. App. 171, 173. (2) The instruction, however, is not erroneous. Time is not necessarily of the essence of a contract, even in a court of law. Russell v. Ins. Co., 55 Mo. 585, 592 ; D* Arras v. Key ser, 26 Pa. St. 249 ; 2 Addison on Contracts (Abbot & Wood’s Ed.) *892, 893, 894 and cas. cit; 2 Whart. Cont., secs. 887, 888 and 894. (3.) The defendant’s title was good without any quitclaim from the McGees. Under the deed of December 20, 1853, the contingent dower right of Mrs. McGee was fully relinquished and released. Such release was proper in form and sufficient in law by the recital in the testimonium clause. Fowler v. Shearer, 7 Mass. 14, 20; Stearns v. Swift, 8 Pick. 582, 536; Learned v. Cutler, 18 Pick. 911; Frost v. Deering, 21 Me. 156, 159; Usher v. Richardson, 29 Me. 415; Davis v. Bartholomew, 3 Ind. 485, 490 ; Ins. Co. v. Noland, 97 Ind. 217 ; Foster v. Dennison, 9 Ohio, 127 ; Purcell v. Ooshorn, 17 Ohio, 105, 123: Meyer v. Qosseit, 38 Ark. 377, 380 ; Dundas v. Hitchcock, 12 How. 256, 257; 2 Scrib. Dow. (2 Ed.) pp. 289, 300 ; 1 Waskb. Real Prop. (5 Ed.) pp. 257, 258; Vol. 2, p. 563. 1 Bish. Mar. Worn., sec. 449 ; 1 Devlin Deeds, sec. 224; Jones on Forms for Conv. 262, 296 ; Martindale on Conveyances, sec. 181. (4.) The right of Mrs. McGee, during her husband’s life, was “a mere possibility which may be released, but cannot .be the subject of a grant.” It was no estate in the land. Durrett v. Piper, 58 Mo. 551, 554 ; DeBar v. Priest, 6 Mo. App. 531, 534; Riddick v. Walsh, 15 Mo. 518, 538 ; Thornton v. Pigg, 24 Mo. 249, 252; Iloyt v. Oliver, 59 Mo. 188, 189; Oreen v. Putnam, 1 Barb. 500, 506, 507 ; Corr v. Porter, 33 Grat. 278, 285; Hinchliffe v. Shea, 103 N. Y. 153 ; Tyler on Inf. and Cov. 558, 559 ; Warvelle on Abstracts, 20, 223 ; 4 Devlin on Deeds, 183, 184, 189 and cas. cit; 3 Washb. Real Prop. (5 Ed.) 236; Hamilton v. Pitcher, 53 Mo. 334; Dundas v. Hitchcock, 12 How. 256, 267, 268 ; Arthur v. Weston, 22 Mo. 381 ; Boone v. Moore, 14 Mo. 420 ; Dew v. Hay, 1 N. J. L. 174; Scanlan v. Wright, 13 Pick. 523. If the equitable rule of doubtful titles has any place at all in the court of law (and our own supreme court has ruled that it has not, Kent v. Allen, 24 Mo. 98; Romilly v. James, 6 Taunt. 263, 274; Boyman v. Gutch, 7 Bing. 279, 292 ; Kip ass v. Watkins, 8 Term R. 515, 518), the title at bar was in no wise doubtful within the scope of that rule. Lydall v. Weston, 2 Atk. 19 ; Stapylton v. Scott, 16 Ves. 272 ; Wrigley v. Sykes, 21 Beav. 347, 348 ; Vreeland v. Blauvelt, 23 N. J. Eq. 483 ; Thompson v. Dulles, 5 Rich. Eq. 370, 375; Dalzell v. Crawford, 1 Pars. Sel. Eq. Cas. 37, 57; Waterman Spec. Perl, sec. 415; 3 Pars. Cont. (7 Ed.) *'380; Mullings x. Trinder, L. R. 10 Eq. Cas. 449, 454 ; Wat. Spec. Perf., sec. 413 ; Alexander x. Mills, L. R. 6 Ch. App. 124, 131, 132; Radford v. Willis, L. R. 17 Ch. App. 7,11; Fallcner x. Equitable Society, 4 Drewry, 352, 358. That an attorney has pronounced against the title does not, of itself, make that title doubtful. Hamilton v. Buckmaster, L. R. 3 Eq. Cas. 323, 328 ; Beioley x. Carter, L. R. 4 Ch. App. 230, 236, 240; Bell x. Holtby, L. R. 15 Eq. Cas. 178, 193 / Bell x. Hutchens, 32 Beav. 615, 619. Where, as here, the objection was removable by procuring a quitclaim deed, the rule does not apply. 3 Pars. Cont. (7 Ed.) *382; Moses x. Cochrane, 13 N. E. Rep. (Ct. App.. N. Y.) 442 and cas. cit.; Woodware x. Van Hoy, 45 Mo. 300.</p>

— Hon. J. H. Slovee, Judge. Statement of the case. This is an action of replevin for about five hundred dollars worth of window shades.

— Hon. C. W. ' Sloan, Judge. The plaintiff’s petition is clearly insufficient, either on objection to the admission of any evidence under it, on motion in arrest, or on suggestion to the appellate court. There is no obligor or obligee or amount averred, nor conditions set out. Muldrow v. Tapp an, 6 Mo. 276 ; McNulty v. Collins, 7 Mo. 69 ; Perkins v. Peed, 8 Mo. 83 ; Biddle v. Boyce, 13 Mo. 533; Andrews v. Lynch, 27 Mo. 167 ; Frazier v. Roberts, 32 Mo. 457 ; Ins.

<p>Appeal from the Caldwell Circuit Court. — Hon. James M- Davis, Judge.</p> <p>Smith v. Phelps, 63 Mo. 585 ; Pom’s Eg. 1240-1243 ; Whitehead v. Church, 15 N. J. Eg. 135; McPhee v. Guthrie, 51 Ga. 83; Sertz v. Railroad, 16 Kan. 133 ; Mfg. Co. v. Gapen, 22 Mo. App. 397; Hamilton v. Schwehr, 84 Md. 107; Turner v. Flinn, 67 Ala. 529 ; Barger v. Grieff, 55 Md. 518; McQuaide v. Stewart, 48 Pa. St. 198; Small v. Older, 57 Iowa, 3 ; Livermore v. Eldridge, 33 Mo. 428 ; Bank v. Chicicering, 4 Pick. 314; Thompson on Homesteads, secs. 656-663; Searle v. Chapman, 121 Mass. 19; Chapman v. Lester, 12 Kan. 592; Worth v. Hill, 14 Wis. 559 ; Hall v. Morgan, 79 Mo. 47.</p> <p>The property was sold under the deed of trust securing the thirteen-hundred dollar claim and the situation of the property, and the prior incumbrances upon it, controlled and fixed the price at which it was sold. Heilwig v. Hilcamp, 20 Mo. 562. There was no stipulation or agreement at the time of the trustee’s sale that the proceeds of such sale were to be used in paying prior incumbrances. In Scott v. Shy, 53 Mo. 478, it was decided that the trustee could not apply the proceeds of the sale of property under a deed of trust to the payment of prior incumbrances. Schmidt v. Smith, 57 Mo. 135. It was the duty of the trustee to pay the liens upon the property in th e order in which they have priority as follows : First, the thirteen-hundred dollar claim ; second, the seven-hundred dollar claim; third, the two-hundred dollar claim. Heilwig ». Hilcamp, 20 Mo. 569. Where a party asks the equitable aid of a court he must be willing to do equity. The case of Colby v. Crooher, 17 Kan. 527, decides that the grant of a specific lien, upon the homestead to secure a debt, does not amount to such a waiver of the homestead right that an unsecured creditor can procure it to be sold in a proceeding for the marshaling of assets. McLaughlin ». Hart, 46 Cal. 639; Brown v. Coyard, 68 111. 180 ; McArthur v. Martin, 23 Minn. 80; also 45 Ala. 168. The homestead law in this state has always been liberally construed in favor of the claimant. Vogler v. Montgomery, 54 Mo. 577; Casebolt «. Donaldson, 67 Mo, 308; Bieclce v. Westenhoff, 85 Mo. 642.</p>

— Hon. Gr. D. Burgess, Judge. (1) The court erred in refusing to permit the appellant to prove the value of the services rendered and paid for by him in invoicing the goods received of Egbert.

— Hon. Gf. D, Burgess, Judge. The first condition of this contract to which we wish. to call the co art’s attention, reads as follows : “If the above mentioned building be, or becomes, vacant or unoccupied without consent endorsed hereon, then in such case this policy shall be null and void.” It is not pretended by anybody that this house was occupied at the time of the fire.

— Hon. C. W. Sloan, Judge. (1) The right of rescission is an exceptional right, and the rules governing it are construed strictly by the courts. Shultz v. Christman, 6 Mo. App. 330. (2) To entitle vendee to rescission, he must offer vendor all the options provided for in contract at one time, and leave vendor free to chose which he will elect to perform. Mfg. Co. '0.- Spitsnogle, 3 Iowa, 71; s. o. 6 N. W Rep. 71; Walls v. Gates, 6 Mo. App. 1, loc. cit. 5.

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

— Hon. J. M. Sandusky, Judge. The mortgage of appellant is good between the parties thereto, Sherman S. Jewett & Co. and Willis Warinner, the assignor, it being to secure a bona-fide debt. Warinner, the assignor, could not attack it, neither can his assignee for he is in no better position. The assignee cannot, under our statute, dispute the conveyance of his assignor. Shultz ». Christman, 6 Mo. App. 338; Heinrichs ». Wood, 7 Mo.

— Hon. Turner A. Gill, Judge. (1) It was error to give the instructions asked 'by-plaintiff. For there is no evidence that “ the smaller man,” who “ dismounted from the wagon” “to readjust the load, ” “ and who threw one of the kegs onto the sidewalk and against plaintiff, ” was defendant’s servant in the management of that team and wagon.

— Hon.. Turner A. Gill, Judge. (1) The sewer in controversy in this case was built connecting with the Missouri river, and as a matter of course had to be constructed larger in consequence of the fact that it was to receive the drainage from other sewer districts, and, if it was so intended, then it was no-more than reasonable in size to carry out the purposes of its construction.

— Hon. Elijah Robinson, Judge. (1) The court erred in making appellant a party. In actions of garnishment, courts of this .state have no authority to order non-residents to appear and inter-plead and litigate their respective rights to the fund garnished. Sheedy v. Banlc, 62 Mo. 17; Beelcham v. Tootle, Hanna & Co., 19 Mo. App. 605 ; 4 Kan. 370 ; 51 Pa. St. 244. The note could not have been reached by order under section 2542, Revised Statutes.

— Hon. D. A. DeArmond, Judge. Statement of the case by the court. The plaintiff brings this suit to enjoin the collection of a judgment obtained by defendant’s testator against him in the circuit court of Bates county, on the fourth day of December, 1883, from which plaintiff, defendant in that action, appealed. Said judgment was affirmed this court at its March term, 1886. 22 Mo. App. 667.

— Hon. Turner A. Gill, Judge. (1) The trial court erred in giving other relief than that specifically asked for. School Hist. ». Landerbaugh, 80 Mo. 190 ; State ex rel. v. Railroad, 77 Mo. 143 ; State ex rel. v. Holladay, .65 Mo. 76. (2) Relator is entitled to mandamus against defendant. High on Ex. Leg.

— How. J. H. Slover, Judge. (1) When the city, through its common council, confirmed by ordinance, the written contract made by its engineer with the plaintiff’s assignor, the city was bound by a most perfect and complete and legal contract. Bank v. Patterson, 7 Cranch, 299 ; Township v. Township, 2 Iowa, 506.

— Hon. D. A. DeAkmosd, Judge. Statement of the case. This is an action for damages, brought by the plaintiff against the defendant, on account of the construction and operation of a railroad across plaintiff’s land, situated in Henry county. The land is one entire tract of ab out eleven hundred acres used as one single farm.

C. H. S. Goodman, Judge. (1) The term public road is defined by the statutes ; and the statutory definition is exclusive. Sess-. Acts 1872, sec. 7, p. 139 ; R. S., sec. 6931; Bauer v. Railroad, •69 Mo. 219-222 ; State v. Railroad, 19 Mo. App. 104; Ludcie v. Railroad, 76 Mo. 639. It means a road or •way legally established under the provisions of the statute.

— Hon. E. M. Hughes, Judge. (1) The court erred in submitting issues to a jury. There were no issues of fact for the jury. R. S., sec. 3601. The first issue submitted was not an issue in the case. Plaintiffs were entitled to have their lien enforced whether the tenants were removing the crops or not. It was not a question of' “hindering, endangering or delaying” the landlord in collection of his rents.

— Hon. John L. Thomas, Judge. There was no evidence tending to prove that Fulton or Bryden, or any one else, had possession of the gun at the commencement of this suit; or that John Bryden ever had the gun in his possession by agent or otherwise. Bowen v. Railroad, 75 Mo. 426 ; Bonnie v. City, 75 Mo. 437; Condon v. Railroad, 78 Mo. 567. Instruction number 6 is erroneous in telling the jury to find the value of the gun at the time it was taken.

— IIon. James D. Pox, Judge. The verdict is unsupported by the evidence and is contrary to the law as declared by the court. Minor v. Coal Co., 25 Mo. App. 78 ; Spurlock v. Railroad, 98 Mo. 544. The evidence shows that plaintiff acquired his title to these ties while they were on defendant’s right of way and after they had been culled or rejected, and had become mottled with the numerous rejecting brands of the various inspectors of the tie contractors and railroad companies.

<p>Error to the Stoddard Circuit Court. — Hon. John Gr. Wear, Judge.</p> <p>The only authority a probate court has to order claims paid pro rata is found in sections 233 and 234 Revised Statutes, 1879, and these have no application to surviving partners.</p> <p>The spirit of our statutes, as construed by our appellate courts, is to leave the surviving partner free to settle the partnership estate, only requiring him to give bond for a fair and proper settlement and a just distribution of the assets. Crow v. Weidner, 36 Mo. 412; Gregory ». Menefee, 83 Mo. 413; Easton v. Courghtwright, 84 Mo. 27; Beney v. Turner, 2 Mo. App. 52; Weise v. Moore, 22 Mo. App. 530.</p> <p>“It is an invariable presumption of this court that the proceedings of the inferior courts are correct unless the contrary appears. He who seeks to review them must put his finger upon the error committed by them.” Per Scott, J., in United States v. Gamble & Bates, 10 Mo. 457; Schwecks v. Mathias, 8 Mo. App. 569. Now there is no bill of excex>tions in the record in this case and there is nothing in it to show the facts upon which the judgment of the probate and circuit courts of Stoddard county was based. The presumption being in favor of the correctness of the judgment of the circuit court, it being a court of general jurisdiction proceeding according to the course of the common law, there is nothing in the record in this cas e which really authorizes this court to review the record in that case, and determine whether the judgment is erroneous or not. The act of March 3, 1883, expressly provides that “if the assets are insufficient to pay all partnership debts, they shall be paid accoi’ding to their resp ective class and ■pro rata, and in such case, if such partner refuse or, for any cause, neglect to pay demands against the partnership * * * such demands shall be exhibited to the proper court for allowance and classification, and they shall then be paid in the same manner, and the court shall have the same jurisdiction of demands thus presented as it has of de mands against estates in ordinary cases of administration.” Sess. Acts, 1883, p. 22.</p>

— Hon. W. D. Hubbard, Judge. In an action by a surviving partner for individual claim, the debt may be set-off by a demand against the firm. Waterman onSet-off, p. 262; see note, sec. 228. If any two or more persons are mutually indebted in any manner whatever, and one of them commences an action against the other, one debt may be set-off against the other although sue h debts are of a different nature.

— Hon. John Gr. Wear, Judge. The paper filed, called complaint and affidavit, contains all the averments necessary to constitute the plaintiff’s cause of action, and is therefore sufficient as a petition. McNees v. Railway, 32 Mo. 224 ; Mayberry v. McClurg, 51 Mo. 256; Elf rank v. Seiler, 54 Mo. 134. If the complaint contains all that is necessary in the affidavit and is sworn to, and filed before the writ issues, the want of a separate affidavit cannot be objected to.

— Hon. W. F„ Geiger, Judge. The finding of the court is against the law and the evidence. To invoke estoppel, the declarations of abandonment alleged to have been made by the plaintiff must have been made with the intention of inducing defendant to act upon them. Bigelow on Estoppel (1 Ed.) pp. 480, 552; Bales v. Perry, 51 Mo. 449 ; Spurlock v. Sproule, 72 Mo. 503; Acton v. Dooley, 74 Mo. 63. This case was not determined in the trial court upon the doctrine of estoppel alone.

— Hon. John Gr. Wear, Judge. The instruction given at the request of the plaintiff was erroneous because it confined the attention of the jury to the place where the colt was killed in determining the question of defendant’s liability, when the point where the colt came on the track determines the right to recover in this action. Moore v. Railway, 81 Mo. 497; Oranis v. Railway, 54 Mo. 240 ; Vance r. Railway, 79 Mo. 196 ; Cecil v. Railway, 47 Mo. 246.

— Hon. W. D. Hubbard, Judge. No appeal from the action of the city council was taken by defendant so as to give the circuit court jurisdiction. The appeal must be taken from the city council in the same manner as from justices of the peace. R. S., sec. 4880. There was no evidence whatever that an affidavit for appeal ever was filed. There was one sworn to, but nothing to show that it was filed with the council, or even with the clerk. It is admitted that no bond was filed.

Louis City Circuit Court. — Hon. Leroy B. Yalta ant, Judge. In the absence of any provision of forfeiture or reentry in a lease, in case of the violation by the lessee of an agreement not to assign without consent, the remedy of the lessors, in the event of an assignment without consent, would be an action on the covenant against the lessees. 1 Wash. Real Prop. [5 Ed. ] 511 ; Den v. Post, 25 N. J. Law, 285, p. 292 ; Brown r>.

— Hon. John Gr. Wear, Judge. It is the duty of a bailee for price to exercise ordinary care to return the property hired, and failing to do so is liable for any consequent damage. This law was accurately defined in the instructions requested by the plaintiff, and the court erred in refusing to give them. Pars. Cont.

Charles Circuit Court. — Hon. William W. Edwards, Judge. There is nothing in the petition or instructions to show or allege that Werremeyer aided, abetted or encouraged the assault that Seiff made upon the plaintiff. but positive and direct testimony that lie opposed and prevented any such assault. McManus v. Lee, 43 Mo. 207 ; Allred v. Bray, 41 Mo. 484 ; Berry v. Fletcher, 1 Dillon Cir. Ct. Rep. 67; Bard v. Tohn, 26 Penn.

<p>Justices ’ Courts : attachment : appeal. Where a justice of the peace rendered judgment for the plaintiff in an attachment suit, both upon the plea in abatement and upon the merits of the claim, whereupon the defendant appealed to the circuit court, never attempting to make it appear that his appeal was from the sustaining of the' attachment only, and the circuit court sustained the plea in abatement, but gave judgment for the plaintiff on the merits, there was no error in an entry ,of judgment against the defendant and his sureties in the appeal bond.</p>

<p>Appeal from the Hannibal Court of Common Pleas. Hon. Thomas H. Bacon, Judge.</p> <p>The petition in this case alleges a failure to deliver the goods to consignee at Hannibal. The answer denies that the goods were received by the defendant. The instructions wholly ignore defendant’s duty to hold the wheat a reasonable length of time for inspection, and if not called for by the consignee, to safely store the wheat. Bell v. Railroad, 6 Mo. App. 363 ; Machine Co. v. Railroad, 71 Mo. 203. Consignees should not be required to search over a city of fifteen thousand people, among the side-tracks, and places of delivery of six other common carriers, for goods shipped over defendant’s line. By defendant’s own showing the wheat in question was delivered to the Missouri Pacific Railway Company, and was set on a side-track dictated by the employes of the road, and in a lumber yard, a dangerous place. Under such extraordinary uncertainty, as to time and place of delivery, it was defendant’s duty to notify the consignee of the time when, and the place where, such car could be found. Instructions numbers 1 and 2 given by the court of its own motion, are not based upon the pleadings. The answer does not admit the reception of the wheat, allege the transportation, and that there “ was an ordinary and usual course of dealing between the parties in reference to delivery of grain in bulk by defendant, as a common carrier, to plaintiff or consignee under which plaintiff did their own unloading from a side-track where such car was left,” neither did the answer allege a proper delivery, and burning of the wheat afterwards. Defendant by its pleadings simply denies that it ever received the wheat, said instructions raise an issue not in the pleadings, and are, therefore, erroneous. Vanhooser v. Berghoff90 Mo. 487 ; Glass v. GeZmn, 80 Mo. 297; Henry ». Hinde, 18 Mo. App. 497; Moffat v. Conklin, 35 Mo. 453. The court erred in giving instruction number 19 asked by defendant. It assumes that there was a “delivery of the car on the side-track in question,” and that there was a “ proper place for delivery.” Such assumption of the existence of facts will not be permitted. Stone v. Hunt, 94 Mo. 475 ; Howling v. Allen, 88 Mo. 293; Bank v. Crandall, 87 Mo. 208 ; Co mer v. Taylor, 82 Mo. 341.</p> <p>The rule is well settled that common carriers in this state, when goods are delivered to them on time, are not required to notify a consignee of the arrival of the same, provided the delivery was at the usual place, where the consignee has been in th e habit of receiving the same. Rankin v. Railroad, 55 Mo. 168 ; Gashweiler v. Railroad, 83 Mo. 119 ; Buddy v. Railroad, 20 Mo. App. 209 ; Niswanger v. Transfer Co., 18 Mo. App. 103. The respondent was in no manner responsible for the fire which burned the car and its contents. The whole duty of the respondents had been performed by placing the car on the side-track in question and its liability as a common carrier had ceased. The liability of the respondent as a common carrier in the shipment of wheat in bulk to the appellants terminated when the car containing such wheat was placed on the side-track, where wheat was usually unloaded by the appellants. In such cases the car so placed would be equivalent to the warehouse ; and the appellants in this case do not seek any recovery against the respondent as a warehouseman. Railroad v. Nash, 43 Ind. 428. The jury have found by their general verdict, that the track in question where the car burned was the usual place of delivery of wheat in bulk, consigned to the appellants. It was only the duty of the respondent to transport the car load of wheat in question within a reasonable time from Frankford, Missouri, to, and upon, the side-track at Hannibal, Missouri, where oars of wheat consigned to the appellants were usually unloaded ; and the law is, that it was the duty of the appellants to see that the car in question was unloaded as soon as it was delivered to them. The jury have found by their verdict that it was delivered to them on said track. It was not the duty of the respondent to in any manner advise the appellants of the arrival of such car. Huch. on Carriers, secs. 368, 370. In the case at the bar, however, the respondent showed by disputed testimony, that the appellants were advised by telephone by respondent’s agent of the arrival of the car in' question, immediately after it reached Hannibal, Missouri, and that the same would at once be placed upon the usual side-track ; and the jury have so found by their verdict. Kightlinger v. Eagan, 75 111. 141 ; Railroad v. Ogle, 92 111. 353. There was substantial evidence to support the verdict, and the trial court committed no error in refusing to grant a new trial upon the evidence. This court will not pass upon the weight of the evidence. Sehade v. Sharp, 95 Mo. 579 ; Van Horn v. Walker, 27 Mo. App. 78 ; Qondy v. Railroad, 13 Mo. App. 588 ; s. c., 85 Mo. 79 ; Sellers v. Baily, 29 Mo. App. 174.</p>