Volume 35 — Missouri Appeal Reports

<p>Appeal from the Halls Circuit Court. — Hoif; Reuben F. Rot, Special Judge.</p> <p>The plaintiff was entitled to an instruction as to the conclusiveness and legal effect of the action of the city-council in requiring the lots to be filled instead of drained. This question arose upon the issues and evidence in the case. Plaintiff’s refused instruction number 8 should, therefore, have been given. Sess. Acts 1873, art. 8, sec. 4, p. 255; Id. art. 6, sec. 14, p. 253; Dillon on Mun. Corp. (1 Ed.) sec. 58, pp. 106, 107; Balter v. City of Boston, 12 Pick. 184; Dillon on Mun. Corp. (1 Éd.) sec. 59, pp. 107, 108. The Main or Second street, mentioned in the instructions, was one of the public streets of the city of Hannibal, and as such, plaintiff had the right to fill, improve and grade it. Defendant’s answer admits that the change in the channel of Bear creek was prior to the filling of said street. Sess. Acts, 1851, sec. 5, p. 827; Id. sec. 16, p. 333. The city was not bound to provide drainage for surface or seepage water accumulating on the abutting lots. Dillon on Mun. Corp. (lEd.) sec. 753, p. 709; Id. sec. 798, p. 770 ; Id. sec. 799, p. 770; Id. secs. 800, 801, p. 772; Wilson v. Mayor, 1 Denio, 595; St. Louis v. Our no, 12 Mo. 414 ; Taylor ©. St. Louis, 14 Mo. 20; Hoffman v. St. Louis, 15 Mo. 651; Schattner v. Kansas City, 53 Mo. 162; Imler v. Springfield, 55 Mo. 119. If the condition of which defendant complained, and upon which he based his defense, to-wit, the accumulation and retention of the waters of Bear creek upon his lots by reason of the Main street fill, did not exist at the time of the passage of plaintiff’s ordinance requiring the filling of said lots, then said plea constituted no defense to plaintiff’s right to recover and plaintiff’s refused instruction number 12 should have been given. The question as to what was the occasion for the filling of said lots, was put in direct issue by the pleadings. Defendant introduced evidence tending to show that it was a condition brought about by the Main street fill. Plaintiff offered to prove by competent testimony, that the action of the city council was based upon a state of facts produced by an entirely different cause. This the trial court refused to allow. Defendant’s instruction was erroneous in the following particulars: (1) It undertook to declare the plan upon which plaintiff should have constructed its Main street embankment. (2) It declares that it was the duty of plaintiff to have provided drainage from defendant’s lots. (3) It makes no distinction between the liability, if any, of plaintiff for surface water, and that for obstructing the waters of a running stream. Dillon on Mun. Corp. (1 Ed.) sec. 797, p. 769.</p> <p>The refused instructions of which complaint is made are either (1) embraced as to the principle declared in instructions 1 and 2, given at jjlaintiff ’ s instance, or (2) are without the limits of the issues made by the pleadings and erroneous, or (3) are in conflict with instruction number 1 given for defendant and erroneous. The principle, declared in instruction 8 to the effect that the determination by the city council, that the lots should be filled and not drained, was conclusive on defendant, is manifestly embraced in the general instructions 1 and 2 given for plaintiff. Instructions 13 and 14 were not within the issues made by the pleadings. Defendant’s answer by distinct averment, as well as by its entire tenor and spirit, alleged that the accumulation and standing of water on the lots was the condition which induced the ordinance directing them to be filled. Plaintiff’s reply denied specially every allegation tending to the agency of plaintiff in producing the water accumulation, but did not deny that said accumulation was the ground of the city’s action. The court did not err in giving defendant’s instruction number 1. (1) The instruction simply declares the principle of law that if plaintiff created and maintained the nuisance by constructing and maintaining a solid embankment whereby the escape of water from the lots was cut off, then that plaintiff could not put upon •defendant the burden of its abatement. This instruction but follows the principle and pursues the mandate of the supreme court herein. (2) Plaintiff cannot complain of the giving of said instruction as error. By instructions 1 a'nd 2 asked by plaintiff and given at plaintiff’s instance, defendant’s instruction number 1 is adopted. In fact it is incorporated into and made a part of the said instructions prayed for by plaintiff. He cannot, therefore, allege error in its giving. Duffy v. Railroad, 19 Mo. App. 380; tioldanels v. Railroad, 23 Mo. App. 516 ; McGonigle v. Dougherty, 71 Mo. 259 ; Holmes v. Braidwood, 82 Mo-. 610; Thorpe ». Railroad, 89 Mo. 650. The offer of proof made by plaintiff ■was properly rejected. There is no allegation that any of the surface privies or offensive deposits were on defendant’s lots, nor that they were on the area by his agency or consent; they are only alleged to have been in the area embracing thirty-two lots. The city could not, because of the fact that there were offensive structures or accumulations on the lots of others, require defendant to fill up his lots or assist in the abatement. Each piece of property is chargeable with the amount expended in its filling and no more. Inasmuch as there could be no judgment over against defendant, under either count in the petition, it follows that evidence as to the aggregate amount expended in filling the two could not warrant a judgment under either count, against the lot or part of a lot therein described.</p>

<p>1. Partnership: how proved. Proof of a participation in the profits and losses of a business will furnish a prima-faaie case of partnership existing among the persons so participating, in favor of thud persons dealing with any of the supposed members of the firm. But this prima-faaie case may be rebutted by showing that the sharing of profits was not because of a common interest in them as such, but was simply by way of compensation for services rendered.</p> <p>2. Partnership: erroneous instruction. Where the defense was founded on an allegation that the plaintiff was the business partner of another, and therefore bound by the acts of such other done in the partnership name, it was error to instruct that, in addition to a sharing of the profits and losses, the defendant must also show such a community of interest as would entitle each of the alleged partners to make contracts, manage the bus iness, and dispose of the whole property.</p> <p>3. ' Partnership: partner’s disability. A partner cannot, without the authorization of his co-partner, apply the p artnership property, or the partnership labor, by a secret arrangement, to the payment of his individual debts.-</p> <p>4. Evidence: signing firm name. The signing of receipts for money with the firm name is not evidence to prove that the signer was a partner.</p>

<p>1. Practice, Appellate: bill of exceptions: record proper. When no ruling of the trial court is preserved in a bill of exceptions, the appellate court will examine no elleged errors, except such as appear in the record proper.</p> <p>2. Practice, Appellate: record proper. The record proper of a cause generally consists of the original process, with the return thereon, the pleadings, any orders substituting parties, and the entry of final judgment. To these may sometimes be added orders which emanate from the breast of the judge while sitting in court, and which are evidenced alone by the entries on the minutes of the court.</p> <p>3. Practice, Appellate: bill of exceptions. Where leave was given until a day stated, subsequently to the lapse of the term, for the filing of a bill of exceptions, a bill of exceptions which was not signed by the judge until after the expiration of that time, cannot be considered on appeal or error. Nor can a nunc pro tunc entry of the allowance of a bill of exceptions be made at a subsequent term, where there is no paper or memorandum to show that fact.</p> <p>4. Practice, Appellate: motions in trial court. Where it appears that a motion in arrest of judgment was overruled pending a motion for change of venue, the merits of the metion for change of venue will not be considered by the appellate court.</p> <p>5. Practice, Appellate : matters of exception : remedy. Matters of exception contained in a bill of exceptions, which was not filed in proper time, cannot be brought to the attention of the appellate court by a second bill of exceptions tendered at a subsequent term, upon the overruling of a motion to set aside the judgment. If, through fault of the opposing counsel, or of the judge or the clerk, a party fails to get his bill of exceptions signed and filed in time, his remedy lies in the signing of the bill by bystanders during the term ; or, if the term has lapsed, in a mandamus compelling the judge to sign it.</p> <p>6. Practice, Appellate: dismissal for failure to secure costs. Objections to a dismissal for failure to secure costs, founded on the terms of an obligation given, cannot be considered on appeal, when the supposed obligation is not made part of the record by a bill of exceptions.</p> <p>7. Practice, Appellate: inadmissible presumption. Where no entry in the record shows whether the trial court did, or did not, approve a bond for costs, but it appears that a judgment was rendered thereon against the sureties, there can be no presumption, on appeal, that the bond had been rejected. Nor can the appellate court, in such a case, consider the question whether the judgment was, or was not, rendered on a rejected bond.</p> <p>8. Married Woman: judgment for costs. A judgment for costs, which includes among the defendants a married woman, is not void against the other defendant’s and sureties in the bond, when the husband and wife were joined in the suit as beneficiaries of the nominal plaintiff.</p> <p>Note by the reporter. — Cases numbered 4332, 4233, 4234, 4235, 4236, 4237, 4238, 4239, 4240, 4241, 4242, 4243, 4244 and 4245 are identical with the one above reported, as to the questions involved and the judgments rendered by the trial court. All the cases were disposed of in like manner by the St. Louis court of appeals,</p>

<p>Appeal from the St. Louis Court of Criminal Correction. — Hon. Edward A. Noonan, Judge.</p> <p> Transferred to the Supreme Court. </p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. James A. Seddon, Judge.</p> <p>Court did not err in granting appellant an extension of time in which to file her bill of exceptions, and the bill was properly allowed. Saulsbury v. Alexander, 1 Mo. App. 209; Miller v. Railroad, 5 Mo. App. 471.</p> <p>Under the statute the court has the power to grant leave to file bill of exceptions after the trial term, but this order must be made during the term, and, unless the bill is filed within the time specified in such order, it becomes a nullity. The court has no authority to grant a second extension of time. West v. Fowler, 55 Mo. BOO, 301; Clark v. Bellock, 65 Mo. 535; Smith v. Pollack, 58 Mo. 161; Da le v. Patterson, 63 Mo. 98 ; Spencer v. Railroad, - ; Gill v. Scruggs, 79 Mo. 187; Taylor v. Newman, 77 Mo. 262; R. S. 3656; Holloway v. City of Moberly, 18 Mo. App. 553, and cases cited; Baker v. Boring, 65 Mo. 527; West v. Fowler, 59 Mo.; s. o., 55 Mo. 300; Cuomo v. City of St. Joseph, 24 Mo. App. 569; Hurt v. King, 24 Mo. 597; Sinclair v. Bolivar, 19 Mo. App. 37. The court had no power to grant the second extension of time in which to file the bill of exceptions, inasmuch as it lost all power to make such order at the expiration of the term of court at which the motion for new trial was overruled. When a bill of exceptions is not filed on time it may be stricken out on motion. Wright v. Sheur, 55 Mo. 70.</p>

<p>1. Insurance: when risk begins. The contract or agreement to insure is the principal act, and, if this be settled upon, it is immaterial whether the premium be then paid or waived. The formal execution and delivery of the policy may be subsequent, and, if done as of the date of the principal act, it will relate back as having taken effect on that date.</p> <p>2. Insurance: date of contract. Where the question whether the contract was complete and unconditional, and the premium paid or provided for on a date prior to the loss, so that nothing remained to be done except the delivery of the policy, or whether the completeness of the contract so made depended on a subsequent ratification, which had not been effected when the loss occurred, was fully presented to the jury by the instructions given, there can be no ground of complaint in that connection by the defendant.</p> <p>3. Instructions: letter from defendant to its agents. There was no error in the refusal to instruct that a letter written by the defendant to its agents did not constitute a ratification of the contract previously made; such letter being incompetent to affect the rights of the plaintiffs.</p> <p>4. Insfcr notions: payment of premium. Where there was evidence tending to show that the defendant’s agents, having power to deliver policies and collect premiums, had either waived the payment of the cash premium, or had agreed to deduct the amount from the plaintiff’s account in a bank of which one of the agents was cashier, there was no error in refusing to instruct that, if the premium was not paid to the defendant before the loss, there could be no recovery.</p> <p>5. Evidence: letters and telegrams after loss. Letters and telegrams sent, after the destruction of the insured property, from the defen dant to its agents, touching a cancellation of the policy, were properly excluded from the evidence.</p>

<p>1. Instructions: contradictory and irreconcilable. Instructions given, which are contradictory and irreconcilable, necessitate a reversal of the judgment.</p> <p>2. Huisance : several contributors. Where a water-way is made the receptacle of masses of filth and offensive substances thrown into it by a number of persons at various points along its course, so that a nuisance is created to the injury of an adjacent resident, such injured person cannot maintain an action against all the contributors jointly, but may sue each of them separately, and can then recover in each case only for the proportionate amount of injury caused by the acts of the defendant therein. Nor can a ' defendant in any one of such cases set up a defense on the ground that the nuisance was a combined effect of all the acts done by himself and others.</p> <p>3. Nuisance: municipal corporation. A municipal corporation has no control over nuisances within its corporate limits, except such as is given by its charter, or by the general law. There can be no recovery on a petition against such a corporation for injuries caused by a nuisance, which does not show that the corporation has such a control as makes the wrong a violation of legal duty, imposed by charter or general law.</p> <p>4. Practice, Appellate: new theory on appeal. A party cannot try a case on one theory in the lower court, and upon another theory on appeal.</p>

— Hon. John Gr. Wear, Judge. Carriers may limit their responsibility as common carriers by contract with shippers, and the court erred in excluding the special contract introduced in evidence in this case and signed by the plaintiff. Hutchinson on Carriers, sec. 240; McMillan v. Railroad, 16 Mich. 79; Squire v. Railroad, 98 Mass. 239; Long v. Railroad, 50 N. Y. 76; Mcllny v. Buckner, 35 Ark. 555; Railroad v. Weakley, 8 S. W. Rep. 134 ; McFadden v. Railroad, 92 Mo. 344.

— Hon. W. J. Wallace, Judge. The court erred in overruling the demurrer to the evidence offered at the close of plaintiff’s case and of the whole case.

<p>Appeal from the SI. Louis City Circuit Court. — Hon. Shepard Barclay, Judge.</p>

<p>Appeal from the Greene Circuit Court — Hon. W. D. Hubbard, Judge.</p> <p>The court erred in refusing to strike out the amended petition filed by plaintiff, as the original cause of action was changed thereby. The court abused a sound discretion in refusing to grant defendant a continuance on the ground of surprise. The court abused its discretion in ove rruling the application of defendant for the appointment of a commission to examine plaintiff, and thereby depriving defendant of the benefit of of such examination. Railroad v. Thul, 10 A. & E. R. R. Cases, 783 ; Shepard v. Railroad, 85 Mo. 629; Sidekum v. Railroad, 93 Mo. 400 ; Owen v. Railroad, S. W. 352, and cases cited. The court erred in refusing to permit defendant to show that plaintiff had refused to submit to a ph ysical examination. This is competent evidence in the nature of an implied admission from conduct. 1 Greenl. Ev. [13 Ed.] secs. 37,196 ; Eldridge v. Hawley, 115 Mass. 410; Crosby v. Buchanan, 23 Wall, 42C, 458 ; Whitney v. Sterling, 14 Johns, 215; Ruppe v. Steinback, 12 N. W. 658 ; 48 Mich. 465 ; Vifquain v. Finch, 19 N. W. 706; 15 Neb. 505. The instruction number 2, given for plaintiff, is erroneous, because: (1) The hypothesis therein stated does not contain all the facts necessary to constitute negligence on the part of the defendant, and its effect is to declare that the happening of an accident, under the given circumstances, is conclusive proof of negligence. (2) It is an instruction on the whole case, warranting the jury to return a verdict on the finding of the facts therein stated. Mfg. Co. r>. Hudson, 4 Mo. App. 145; Evans v. Railroad, 17 Mo. App. 522; Clay v. Railroad, 17 Mo. App. 629 ; Hines v. McKinney, 3 Mo.'882; Sigerson v. Pomeroy, 13 Mo. 620 ; Clark v. Hammerlee, 27 Mo. 70; Mead v. Butherton, 30 Mo. 201; Sawyer v. Railroad, 37 Mo. 263; Thomas v. Babb, 45 Mo. 384 ; Goetz v. Railroad, 50 Mo. 472; Fitzgerald v. Hayward, 50 Mo. 523; BanTt v. Armstrong, 62 Mo. 70, 73; Henry v. Bassett, 75 Mo. 92; Gilson v. Railroad, 76 Mo. 284, 286; Sullivan v. Railroad, 88 Mo. 169 ; ■ Raysdon v. Ti'umbo, 52 Mo. 35; Porter v. Harrison, 52 Mo. 524. Instruction number 3 given for plaintiff is misleading in this, that, while the intention was simply to declare that notice or knowledge of the defective condition of a sidewalk may be presumed from length of time in which it is out of repair, yet it is so worded as to authorize a verdict against defendant if: (1) The sidewalk was out of repair in fact. (2) If defect existed for such a length of time that city could have discovered its condition by reasonable diligence. Instruction number 5, given for plaintiff, is erroneous. It is misleading in this. That, while the intention is simply to declare what will constitute negligence on the part of the city, it goes farther and really is an instruction on the whole case. Instruction number 6 given for plaintiff is erroneous and misleading in this : That it declares the' absence of “a guard, or other sufficient cover and without a light,” is conclusive proof of negligence ; thus declaring that a light was necessary and its absence negligence. In this instruction the conjunctive is used between the words guard and light. In instruction number 5, the disjunctive is used. These instructions are therefore contradictory. The seventh instruction is on the whole case, and is erroneous in this : It declares it to be the duty of the city to keep "all of the sidewalk in good repair. The eighth instruction is erroneous because it makes the defendant an insurer, as it requires the city to put such covering over the opening as would be sufficient in itself, or as secured, to prevent accident. Instructions numbers 8 and 8¿-, are erroneous in this: (1) The court usurps the province of the jury by determining what did and what did not constitute a proper covering. (2) It takes away from the consideration of the jury the question whether or not the sidewalk or alley was in a condition reasonably safe for travel. (3) It is undeniably inconsistent with instruction number 8, given for plaintiff, and with numbers 7 and 8 given of the court’s own motion. Streeter v. City of Breekenridge, 23 Mo. App. 244; Salmon n. Trenton, 21 Mo. App. 182; Staples v. The Town of Canton, 69 Mo. 592; Lower v. City of Sedalia, 77 Mo. 445; Mauerman v. Siemeris, 71 Mo. 101; Norton n. Ittner, 56 Mo. 352 ; Wyatt v. Railroad, 55 Mo. 485; Nagel v. Railroad, 75 Mo. 653; Iluhn v. Railroad, 92 Mo. 440 ; Keim v. Railroad & Transit Co., 90 Mo. 314; Tabler v. Railroad, 93 Mo. 79 ; 2 Dillon Mun. Corp., sec. 789 ; MeDermot ®. Barnum, 19 Mo. 294; Chouqiielte v. Barada, 28 Mo. 491; Tamer v. Loler, 34 Mo. 461 ; Howe v. Buhle, 19 Mo. 360; Hoensehen v. O'Bannon, 56 Mo. 289 ; Railroad v. Stout, 17 Wall,. 657; Hays v. Railroad, 111 U. S. 242; Bank v. Morgan, 117 U. S. 122 ; U S. v. Babcock, 3 Dill. 580 ; O'Neill v. Railroad, 1 McCrary, 507. Instruction number 9 is erroneous. It is an instruction on the whole case and warrants a verdict against the defendant without requiring the jury to find : (1) The exercise of reasonable care on the part of plaintiff. (2) Without submitting to the jury the question whether or not the city had made reasonable efforts to protect or guard the same. (3) Without submitting to the jury whether or not sufficient of the walk was in such condition as to render the same reasonably safe for travel. The court erred in refusing instructions. All a city is required to do is to make reasonable efforts to protect the public and repair, or guard, defective and dangerous places. It is not an insurer. The court erred in refusing proper instructions on the question of damages. The court will bear in mind, in reviewing the remarks of counsel for plaintiff, that under the Revised Statutes, 1879, plaintiff was entitled to, and did, obtain a j ury composed entirely of non-taxpaying citizens of the city of Springfield, Missouri. As the wealth of’defendant was notan issuable fact, punitive damages not being recoverable, and as evidence thereof, if offered on the trial, would have been excluded, it was improper to discuss or refer to it before the jury. Its only object was to influence the jury on the amount of damages and divert their attention from the issue. Under the evidence the damages awarded are excessive. Gibson v. Zeibig, 24 Mo. App. 65 ; Sidekum v. Railroad, 93 Mo. 400.</p> <p>The court properly gave the law of the case, and it was fairly tried upon its merits. The verdict is not excessive, but fully warranted by the evidence, and plaintiff’s counsel submit that the judgment should be affirmed.</p>

— Hon. John Gr. Weak, Judge. The appellant’s motion for judgment ought to have been sustained. Creath, in failing to reply to his co-defendant’s cross-bill, accepted it as true. The admissions of the two answers left no triable issue.

Louis County Circuit Court. Hon. William W. Edwards, Judge. As a matter of law the court erred in not dismissing the appeal in each case.

<p>Appeal from the St. Louis City Circuit Court. — Hon, William H. Horner, Judge.</p> <p>The letter of Fisher should have been excluded. No authority shown to make contract for appellant. “Real estate agent,” so called, has no general powers, such as broker by the law-merchant. Barnard v. Duncan, 38 Mo. 170; Steioart v. Wood, 63 Mo. 252; 12 Kent Com. * 511. Memorandum made and signed by third party, only, is not sufficient. Welch v. Darling, 7 At. Rep. (Vt.)547. The letter is too indefinite and uncertain. Whaley v. Hinchman, 22 Mo. App. 483; King v. Wood, 7 Mo. 389 ; Ivory v. Murphy, 36 Mo. 541; Springer v. Kleinsorge, 83 Mo. 153; Browne Stat. Frauds, sec. 385; Bar ten v. Patrick, S. C. Neb., 31 N. W. Rep. 370; Martin v. Halley, 61 Mo. 196. The alleged contract of “assurance and guaranty,”— 'adopting the language of the petition, — and the relief sought, are within the statute of frauds; the contract not being reduced to writing, nor to be performed within one year. R. S., sec. 2513. Full effect should be given to the statute. Delventhal v. Jones, 53 Mo. 460, at 463. Equity only interferes to prevent gross fraud; will not interfere where there was no fraud, no deception. Browne St. Fr., sec. 439. No misrepresentations, no fraud, are charged, or even attempted to be proved. So, no action at law could be maintained as for false representations. Bank v. Sells, 3 Mo. App. 85; Bailey v. Smock, 61 Mo. 213. Should plaintiffs argue that the appellant agreed to give bond to reimburse, such agreement is also void: “An oral agreement to put in writing a contract, which will require more than a year to perform, is within the prohibition of the statute.” Browne St. Fr., sec. 282a. A verbal agreement to give a mortgage is void by statute of frauds. Thomas, Mort. 20; 3 Powell, Mort. 1050, b. c.; Herman, Mort. 195, 196 ; 4 Kent Com. (12 Ed.) * 151, 451, n. 1.; 2 Spence Eq., *777 ; 2 Story Eq., sec. 1238 ; Browne St. Fr., sec. 267; Irvin v. Hubbard, 49 Ind. 350. Payment of purchase money is not sufficient to take the case out of the statute. Browne, secs. 454, 455, 461 ; Parke v. Lee-wright, 20 Mo. 85 ; Galway v. Shields, 1 Mo. App. 546 • s. o., 66 Mo. 314; Lydick v. Holland, 83 Mo. 703. This last case holds that performance of the ancillary contract, also, is insufficient. Performance must be complete, not partial, and to be wholly performed within one year. Atwood v. Fox, 30 Mo. 499; Sharp v. llliiel, 55 Mo. 97. Must be inconsistent with any other supposable contract than the one alleged. Performance by plaintiff must unequivocally prove alleged contract. Sitton v. Shipp, 65 Mo. 297; Browne St. Fr., sec. 457 j Fry Spec. Performance, sec. 413.</p> <p>The original contract was in writing, and is contained in a deed from Tatum to respondents and in a letter from Fisher & Co. to Schultz, dated May 15,1877, in the following words: “Tatum agrees to sell for $8500 (no interest) and guarantee that there will be no more. This he agreed to do to-day. This, judge, is the best we can get him to do. I called at your place to-day and did not find you in. Truly yours, Fishek & Co.” The letters of Fisher & Co. were competent testimony to show what the contract was, for the appellant, admits that Fisher & Co. were his agents and that he adopted and acted upon the contract which they had made, so that he ratified their acts, even if he did not originally authorize them. Neither the contract, or rather contracts, between the parties or any of them, nor the relief sought are within the statute of frauds. ,R. S. 1879, ch. 35, p. 420. The guarantee agreed to be given in such written contract was given by placing the two notes in Fisher’s hands as security for the respondents, and this is an action to enforce that security,</p>

<p>Practice, Appellate: ke-trial of cause. Where the testimony for the opposing parties, respectively, conflicted as to material particulars, and the court, sitting as a jury, found in favor of the defendants’ theory of fact on the ground, apparently, that there was no preponderance on the side of the plaintiff, on whom lay the burden of proof, an appellate court cannot revise the finding and judgment; to do which would be, practically,, to retry the cause upon the testimony.</p>

Louis City Circuit Court. — Hon. George W. Lujbke, Judge. If a party claim title, to property by gift, and by reason of its being exempt to the donor, though not such property as is specifically exempt by statute, such claimant must show an intention on the part of the donor to select such property as exempt, existing prior to the conveyance to such donee. Hombs v. Corbin, 20 Mo.

<p>1. Practice, Appellate: weight of evidence. An appellate court cannot revise tlie verdict of a jury rendered upon conflicting, evidence.</p> <p>2. Practice, Trial: motion for new trial. A motion for a new trial, backed by affidavits which show no newly discovered evidence, but only that an absent witness whose testimony, if obtained, would be merely cumulative, made such frequent changes of location as to defeat the defendant’s efforts to procure his deposition, and from which affidavits it did not appear likely that his testimony could be obtained if a new trial were granted, or that if obtained it would probably change the result, presented nothing from which it could be said that the trial court abused its discretion in overruling the motion ; nor did anything appear in the circumstances which would justify this court in reversing the action of the court below.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Shepard Barclay, Judge.</p> <p>The language of the policy that the property described therein ivas “occupied as a pork and rendering house/’ was a warranty. Loehner v. Ins. Co., 17 Mo. 247; Koonts v. Sav. & Ins. Co., 42 Mo. 126; Ins. Co. v. Barnett, 73 Mo. 364; Alexander v. Ins. Co., 66 N. Y. 464; Roberts v. Ins. Co., 26 Mo. App. 92. The warranty being false, as shown by the agreed statement of facts, and it 'further appearing that neither the defendant nor its agent knew of its falsity until after the policy was delivered, it was void ab initio, and never took effect as a policy of insurance. Rigby v. Ins. Co., 3 Mo. App. 603; Loelmer v. Ins. Co., supra; Koonts v. Sav. & Ins. Co., supra; Ins. Co. v. Barnett, supra; Alexander v. Ins. Co., supra; Roberts v. Ins. Co., supra ; Barnard v. Ins. Co., 27 Mo. App. 26. And it makes no difference that there was no intention on the part of the insured to deceive. Rigby v. Ins. Co., supra. And the knowledge of the vacancy acquired by Werth eight days after the policy was delivered, especially as he did not communicate the fact of the vacancy to defendant, did not have and could not have the effect of giving validity to a contract which in its inception was utterly void. Loelmer v. Ins. Co., supra ; Alexander v. Ins. Co., supra. The agreed statement of facts shows that Werth, who wrote the description in the policy in controversy, was the agent of plaintiff for the purpose of procuring and keeping up the insurance, and that the description was copied out of a book made and kept by him as plaintiff’s agent, for his own and plaintiff’s benefit, and not for the use or benefit of defendant; hence, any act done by him in procuring the insurance was done as plaintiff’s agent, and plaintiff is bound thereby.</p> <p>In the case at bar, on the part of plaintiff, there was no application for insurance. The defendant made application to plaintiff by sending to him a policy by mail, which policy was by defendant enlarged by the vacancy clause before plaintiff accepted it. Thomas v. Ins. Co., 20 Mo. App. 150; Ins. Co. v. Wilkinson, 13 Wallace, 222; Coombs v. Ins. Co., 43 Mo. 148. The contract of insurance was not completed until the vacancy clause, ‘ ‘ permission granted to have the within insured property remain vacant pending change of tenants,” was inserted. Therefore, the cases cited by appellant do not apply in this case.</p>

<p>Telegraphic Message: error in transmission : measure or damages. The plaintiff’s agent delivered to the defendant a message to be transmitted by telegraph to the plaintiff, and the operator, in sending it, so changed the words and figures as to make a message different in an important particular. Held: In the absence of any showing that the plaintiff was induced to act, and did act in detriment of his interest, on the faith of the erroneous message, or of any showing- that he suffered any special damage in consequence of the error, the amount of the plaintiff’s recovery cannot exceed the sum paid to the de fendant for transmission of the message, with interest.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. . James A. Seddon, Judge.</p> <p>There are two theories on which the plaintiff as the trustee of Edward M. Johnson, is entitled to recover; first, that there was no vested interest in the proceeds of this policy in either Venia or Anna at their deaths, and that’the continuance, by the insured after their -deaths to pay the premiums, was in effect taking out a new policy for the benefit of Bessie, Robert and Eddie, the other surviving children. Gambs v. Ins. Go., 50 Mo. 44; Kinnon v. Ins. Go., 23 Wis. 108; Clark v. Durand, 12 Wis. 223; Ins. Go. v. Brandt, 47 Mo. 420. In the case of Loos n. Ins. Go., 41 Mo. 53, the court held that “the words legal representatives in their general or professional sense mean simply executors or administrators; but that the language used by the assured in the policy indicated that it was his intention in case of his untimely decease, to make some provision for the surviving members of his family, and not that the money arising from the policy should go to his executors or administrators to be administered on as ordinary assets. The changing of the language and the using of terms of different expression clearly implied that the money was intended for the benefit of the heirs or next of kin, and that it was not to be administered on as assets by the executor or administrator. We concede that the weight of authority in most of the states is in favor of holding that as soon as the policy is issued, an interest vested in the beneficiaries ; but such is not the law in Missouri, or Wisconsin. Gambs v. Ins. Co., 50 Mo. 44; Clark v. Durand, 12 Wis. 223 ; Kernan v. Howard, 23 Wis. 108; Palmier v. Merrell, 6 Cush. 56.</p> <p>The interest of each of the children, Anna and "Venia, was a vested one, and descended to their legal representatives. As one of such legal representatives James Johnson, Jr., took a share in the policy of insurance upon his own life. Ins. Go. v. Palmer, 42 Conn. 60; Libby v. Libby, 37 Maine, 359; Hutson v. Merrifield, 51 Ind. 24; Chapin ». Fellowes, 36 Conn. 132; Succession of Eugler, 23 La. Ann. 455; Packard v. Ins. Co.. 9 Mo. App. 469.</p>

Louis City Circuit Court. — Hon. George W. Lubke, Judge. The court erred in sustaining defendant’s demurrer, for the following reasons, viz: If the creditors in the case of such a personal statutory liability have a remedy at law, they' also have a concurrent remedy in a court of equity for its enforcement. Bank v.- Ibbotsan, 24 Wend, 478; Van Hook v. Whitlock, 3 Paige, 409; Morris v. Johnson, 34 Md. 485 ; Perry v. Turner, 55 ■Mo. 418 ; Lozier v. Thornton, 19 Ga. 325.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. Before a question, in dispute, can be concluded by a former trial, it must appear: (1) That the identical question was directly and properly in issue, between the same parties in that trial; and it rests upon the party, setting up the trial as an estoppel, to show that the matter in question was adjudicated by it. Parker v. Roberts, 63 N. H. 431 (2) That it was tried upon the merits, and determined.

<p>1. Practice, Appellate: saving exceptions. A motion to strike out part of an answer is no part of the record, and objections to the court’s ruling thereon must be saved by exception taken at the time, and also by motion for a new trial and a bill of exceptions. If the ruling complained of be not objected to in the motion for a new trial, it will not be considered by the appellate court.</p> <p>2. Married Woman: separate estate. A promissory note executed by a married woman as a charge upon her separate estate creates no lien or charge, until the entry of a proper decree to that effect. Nor is any debt created by such a note, upon which her • administrator can be sued, or which can be allowed against her general estate in the course of administration. If she die seized of realty so intended to be charged, her personal representative cannot, in any event, be a proper party to a proceeding which seeks to enforce the charge ; and a suit against him for that purpose will be dismissed, as not being founded on a sufficient cause of action.</p>

Louis City Circuit Court. — Hon. George W. Lubke, Judge. Held: that a suit might be maintained against him to recover the amount.

Louis City Circuit Court. — IIon. Shepard Barclay, Judge. After the respondent had closed his case the appellant asked the court below to give the following instruction to the jury, to-wit: “ The court instructs the jury that under the pleadings and evidence in this case plaintiff cannot recover a sum beyond nominal damages.” The court below refused to act or rule upon this instruction at that stage of the trial, and we submit that the court committed error in said refusal.

— Hon. W. D. Hubbard, Judge. The appellants’ motion to set aside judgment and for leave to answer was a direct proceeding between the original parties in the suit, attacking the judgment as being either void or voidable. Stale ex rel. v. Heinrich, 14 Mo. App. 146. This motion or petition ( for it may serve the purpose of both, lb. 149) was filed within six months after the judgment and at the following term of court.

<p>Appeal from the St. Louis City Circuit Court. — Hon. George W. Lubke, Judge.</p> <p>The court erred in not setting aside the judgment by default under the facts disclosed by the affidavits in this case. Obermeyer v. Einstein, 62 Mo. 841; Cooney v. Murdock, 54 Mo. 849; Castlio v. Bishop, 51 Mo. 162. The court erred in holding itself bound by rule 9 of the practice of the circuit court of the city of St. Louis, and for refusing to exercise or use any discretion in the matter to set aside the judgment by default. Saulsbury v. Alexander, 1 Mo. App. 209.</p> <p>It appears from the transcript that no motion for a new trial was ever filed by the defendant in this cause, consequently there is nothing for this court to review. State ex rel. v. Hitchcock, 86 Mo. 231; Bank v, Allen, 68 Mo. 47. The affidavits filed in support of the motion to set aside the judgment do not show that the defendant had any defense whatever to the action, and are therefore insufficient. Qastlio v. Bishop, 51 Mo. 162 ; Obermeyer v. Einstein, 62 Mo. 341; Biebinger v. Taylor, 64 Mo. 63; Fry v. Railroad, 73 Mo. 123 ; State n. Claudius, 3 Mo. App. 561; Cowenti. Bircher, 5 Mo. App. 577. The action of the court in applying its rule of practice to the particular case was proper, and did not amount to an abuse of its discretion and authority.</p>

Louis City Circuit Court. — Hoir. . James A. Seddon, Judge. “A demurrer to the evidence should not be sustained, unless the evidence wholly fails to make proof of some essential averment.” Noeninger v. Vogt, 88 Mo. 589; Rice v. Railroad, 63 Mo. 314 Appellant clearly was entitled to have his case go to the jury under the evidence, unless the court held that the failure to give the same notice to the company at Auburn that was given to the agent here was a fatal omission.

— Hon. James A. Seeeon, Judge. An appeal lies from the order overruling the motion to retax costs. Shed v. Railroad, 67 Mo. 687 ; Herson v. Railroad, 18 Mo. App. 439. Under the facts shown in this case the depositions taken by plaintiff were “sham depositions taken without cause.” Lewring v. Schnell, 8 Mo. App. 589. The act of April 3, 1885 (Sess.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge.</p> <p>The court below erred in admitting the deposition of Coquard as to when he acquired, and how much he paid for the scrip on which his judgment against the bank was founded. His judgment against the bank was conclusive against its stockholders. Bisset v. Kav. Co., 15 Fed. Rep. 353, and cases in note on page 361 ; Clapp v. Peterson, 104 111. 26; Schaeffer v. Ins. Co., 46 Mo. 248; Taylor on Corp., sec. 737. Therefore, the testimony objected to was irrelevant and immaterial. Manmlle x>. Roever, 11 Mo. App. 317; Grew v. Breed, 10 Mete. 569; Thomp. on Liability of Stockholders, sec. 394. The lower court erred in admitting the record in the case of Prendergast v. Butchers and Drovers’ Bank, as the judgment in that case was incompetent and irrelevant as against the appellant. One not a party to a suit is not bound by the judgment therein. Lugge v. Stumpe, 73 Mo. 513. The lower court erred in admitting the record in the case of Washington Savings Bank et al. v. Butchers and Drovers’ Bank et at. against appellant’s objection. The pendency of one action cannot be pleaded in bar of another. Iron WorJcs v. C hittenden, 4 Bosw. 406; Thomp. on Liability of Stockholders, sec. 398. By the institution of this proceeding appellant acquired a right of priority, which a subsequent suit could not displace. Thomp. on Liability of Stockholders, sec. 424; Butler v. Cole, 43 Me. 401; Butler v. Ingalls, 47 Me. 541; Benton x>. Jerman, 79 Mo. 148; Manmlle v. Karst, 16 Fed. Rep. 173; Bitner v. Lee, 25 Mo. App. 559.</p> <p>There was no error in admitting evidence as to the nature of the judgment recovered by the plaintiff in the case and it seems paradoxical that the plaintiff should object to the same evidence offered by plaintiff against defendant and ask for a reversal of the judgment on the ground that such evidence was inadmissible. Plaintiff relied upon the same kind of evidence as defendant, and if the authorities cited by the plaintiff are correct, then plaintiff is not entitled to recover in this action on the strength of the authorities which he has cited in his brief. In an action at law a stockholder of a corporation is entitled to off-set any demand held or owned by such stockholder against the corporation in favor of any creditor proceeding against the stockholder. This was the decision of the court below, and this decision is based upon the decisions of the supreme court of this state. Jerman v. Benton, 79 Mo. 148; Shickle v. Watts, 94 Mo. 410.</p>

Louis City Circuit Court. — Hon, George W. Lubke, Judge.' The only question for the consideration of this court is whether the suit which is set out in the answer and pleaded in bar of this case is… Held: that the former replevin suit for the six hogs was a bar to this action, but not so, as to the four hogs of the conversion of which plaintiff was ignorant.

<p>Justices’ Courts: appeal : failure to prosecute. On appeal from a justice of the peace to the -circuit court in the city of St. Louis, the appellant’s failure to pay the filing fee of one dollar, as required by Revised Statutes, page 1506, section 17, is a failure to prosecute the appeal; and at the return term of the appeal, the respondent may present the transcript, pay the filing fee, and have the judgment affirmed for failure to prosecute the apppeal.</p>

<p>1. Personal Property: sale and delivery. If, at the time of a sale, the property is already in the possession of the vendee, no formal delivery is necessary to a legal consummation of the-transfer.</p> <p>2. Attachment: fraudulent disposition of chattels. The evidence tended to prove that the defendants had L. in their employ, driving a delivery wagon, for two or three years, at the end off which time, being indebted to L. in the sum of six hundred dollars, they sold the wagon and horses to him in part payment of the debt, and L. continued to drive for the defendants as before ; they paying him six dollars per week for the use of the wagon and team. L. had the control and possession of the horses both before and. after the sale, and there was no change in their keeping, except that, after the sale, L. paid for the rent of the stable. Held, that it could not be assumed, as a matter of law, that the defendants were liable to attachment for having fraudulently disposed of their property, so as to hinder, delay, or defraud their creditors, because there was no visible or sufficient change in the possession of the property, and further, that an instruction to the effect that, if there was no actual, visible, continued and exclusive change off possession after the sale, such as would impart notice to a prudent man that a change had taken place, the verdict on the plea in. abatement should be for the plaintiff, was properly refused.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon, Leroy B. Y allí ant, Judge.</p> <p>The instruction given by the court of its own motion was improperly given. This instruction was to the effect that the court below was bound to follow the mandate of this court and find for defendant and was objectionable in that the trial in the circuit court should have been on the m erits of the case, and at that trial the court should have judged according to the evidence and the law as it existe d at that time. The supreme court had laid down the law in the case of Hamilton v. Ins. Co., on the same and similar facts, and the court below should have followed the law as there laid down. Amend, to the Const. Acts, 1883, p. 216, sec. 6. Even if the circuit court was bound to follow the mandate of this court and render judgment for defendant, when the case came up to be tried for the second time on the same evidence as was introduced at the first trial, yet this court must reverse the judgment of the court below and give judgment for the plaintiffs, because, as said before, the supreme court has since laid down the law on these facts to be in plaintiff’s favor; and by the constitution of Missouri, the last previous ruling on any point by the supreme court shall be binding on the court of appeals.</p> <p>In the case of Bevis v. Railroad, 30 Mo. App. 564, the court held — Presiding Judge Rombíukb delivering the opinion — that, “ according to the settled rule in this state governing appellate procedure, the same question is not subject to re-argument on a second appeal, but once decided is the law of the case.” In support of this view the court cited, with evident approval the following cases: Grumley v. Webb, 48 Mo. 563; Bank v. Taylor, 62 Mo. 338; Qhouteau v. Gibson, 76 Mo. 38; Forester v. Railroad, 26 Mo. App.' 123. Questions decided on a former appeal will not be reexamined. Forester v. Railroad, supra. Where an intermediate appellate court remands a case with specific directions, and no appeal is taken from its judgment, and the trial court conforms its action to the. judgment, upon second appeal the supreme court will hold the judgment conclusive. Lackland v. Smith, 75 Mo. 307. A matter once expressly decided by this court is res adjudicata. Adair Qo. v. Ownby, 75 Mo. -282. A matter once decided cannot,' on second appeal, be again brought in question. Gaines v. Fender, 82 Mo. 497. When a case is remanded, with specific directions as to judgment, lower court has no power to enter any other or to grant new trial. Qhouteau v. Allen, 74 Mo. 56. Where a judgment is reversed and the cause is remanded, with special directions to the trial court as to the further proceedings, and such court proceeds in conformity with the directions, its judgment will be affirmed. Bhroyer v. Nickel, 67 Mo. App. 589. This court, after a thorough examination of the identical questions of law and fact now presented for reexamination, concludes its opinion with the following language: “We are of the opinion that the circuit court erred in its instructions as to the effect of Miller’s knowledge of the over-insurance acquired by him after the delivery of the policy, and the judgment will therefore be reversed and the cause remanded.” Hamilton v. Ins. Co., 15 Mo. App. 59, et seq. The constitutional amendment found in the Acts of 1883, p. 216, sec. 6, is relied upon by appellants’ counsel. This amendment says, in substance, that the last previous ruli ngs of the supreme court, on any question of law or e quity, shall, in all cases, be controlling authority in courts of appeals. We submit that this constitutional amendment is without application to this case. The question decided by the court of appeals, in the case of Hamilton v. Ins. Co., was of first impression. Prior to that time there had been no “ previous rulings of the supreme court on any question of law or equity,” to be followed, as controlling authority, by the court of appeals in the A urora case.</p>

<p>Action: common carrier, A contract between the shipper and the defendant, a common carrier, whereby the defendant was to carry goods to its terminal point and there deliver them to the plaintiff —also a common carrier — for transportation to the point of destination, was not a contract made by other parties for the plaintiff’s benefit; but only embodied an incidental advantage which the plaintiff might derive from earnings for part of the transportation; and no right of action accrued to the plaintiff against the defendant, for a violation of the contract in giving the extended teanspor'tation to a carrier other than the plaintiff.</p>

<p>Contract: interpretation : evidence. When on the face of a paper containing a written contract, upon which the suit is founded, there appears a memorandum referring to certain interpretations, explanations or conditions concerning the matters of contract, which are written or printed on the other side of the paper, and the contract is offered in evidence by the plaintiff, the defendant is entitled, on his demand, to have such interpretations, etc., read in connection with the contract, and it is error for the court to exclude them from the evidence^</p>

<p>Appeal from the St. Louis City Circuit Court. — Non. Shepard Barclay, Judge.</p> <p>The instruction offered by appellants, at the close of respondent’s case, should have been given. Whatever may have been the injuries of the respondent his own case failed to connect the' defendants with it, officially or otherwise. Their only witness on the subject, Maguire, obviously knew nothing and testified to nothing, taking his examination as a whole. The second and sixth instructions offered by appellants should have been given. Rowse was not a commissioner, a manager, a trustee, nor was he in possession of Benton Place. The other defendants are not shown to have had anything to do with the respondent’s grievance or to have known anything about the matter complained of. The appellants respectfully submit that the fact that they occupy elevated ground does not constitute any legal obstacle to their using and improving it without being-liable to an adjoining owner for damages caused by the flow of surface'water from the improved property. As was recently said by this court, “since the decision in Abbott v. Railroad, 83 Mo. 271, the rule in this state is well settled as to surface water in such cases. An owner may so improve his lands as to either increase or diminish the quantity of water which has previously flowed on adjoining lands and is not responsible to such adjoining owner for the damages caused by the improvement in in this respect.” Bird v. Railroad, 30 Mo. App. 374. This is a case of surface water and not like Mangold v. Railroad, 24 Mo. App, 52, which was the case of a living natural stream. Hereof a distinction exists, namely, that diverting the latter is per se a nuisance, but not as to the former unless done carelessly and unskilfully. 83 Mo. 276; 57 Mo. 437-S. There is no evidence that the surface water in this case was made to run in increased quantities in the direction of the respondent. The appellants were entitled to an instruction as to the respondent’s construction of his houses and the approaches to them and the grading and paving his yard ; to defend against the surface water from the land above ; he having had warning for years, and common prudence should have made him apprehend danger, whereas he negligently constructed his basement entrances and windows so as to have nothing to arrest the natural flow of surface water from Benton Place to and upon his premises, on and into his houses.</p> <p>The petition stated a good cause of action in each count thereof, under the rule in force in this state concerning surface water, which is that although the common law rule on that subject obtains here, nevertheless, the superior proprietor has not “ the right to collect the water in a body on his land and precipitate in a body or in greatly increased or unnatural quantities upon his neighbor to the substantial injury of the latter.” Schneider v. Railroad, 29 Mo. App. 68; Roester v. Remsath, 16 Mo. App. 485. And there having been substantial evidence to sustain the allegations of the petition the court below rightfully refused appellants’ instructions that plaintiff was not entitled to recover. The evidence abundantly showed that the water at each of these injurious floods was collected in a body and then forced upon plaintiff’s property. As to other instructions asked by appellants and refused by the court, they were rightfully refused because such of them as state correct propositions were covered by the instructions given by the court of its own motion. When this is done, the refusal is not error. Schaffner «. Leahy, 21 Mo. App. 110.</p>

<p>1. Jurisdiction: service oe summons: personal privilege. A party to a suit pending in a county other than that of his residence, who visits such county for the sole purpose of attending the trial, and of giving his testimony and consulting with his counsel ’in connection with such a suit is not, while so in attendance, subject to the service of summons in another civil suit instituted in the same court by a resident of the county in which it sits. The court acquires no jurisdiction of the defendant’s person by such service of summons.</p> <p>2. Jurisdiction: service on co-defendant. An improper and invalid service of summons unon a defendant, in the county not of his residence, will not support a service upon his co-defendant in the county where he resides, if the same be not the county in which the suit is brought, and the jurisdiction of the court must fail as to both defendants.</p> <p>8. Jurisdiction: waiver by defendant. A defendant does not waive his plea to the jurisdiction, or his right to the benefit thereof on appeal, by failing to except to the decision of the court sustaining a demurrer to his plea, or by answering over and including in his amended answer a renewal of his plea, or by answering to the merits.</p>

<p>1. Insurance: amount of indemnification. The provisions of Revised Statutes, sections 6009 and 6010, become part of the contract when an insurance is effected, and a contract for arbitration, whereby the loss may be determined by appraisers at an amount less than the statute secures, is not supported by any sufficient consideration, and is unavailable as a defense in a suit on the policy.</p> <p>8. Insurance: meaning of “wholly destroyed.” The words “wholly destroyed,” as used in the statute, have a technicalmean- • ing, different from their ordinary meaning in common usage, which would apply the words to any material change of form or substance. But, under the statute, a building is wholly destroyed, only when no part of it remains intact or substantially uninjured, so that it can be utilized in effectually restoring the structure to its entirety. The trial court erred in submitting to the jury, without proper definition, the meaning of the words, as well as their application to the facts in evidence.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. There was no substantial evidence to support the verdict.

Louis City .Circuit Court. — Hon. Leroy B. Yalliant, Judge. / The trial court gave to the jury, for respondent, an improper and illegal instruction. The instruction does not embrace all the issues in the case.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. The plaintiff, in his petition, attempts to set out a case of proceeding under the statute of 1885 (Sess.

Louis City Circuit Court. — Hon, George W. Luuke, Judge. The petition and lien both state that'the account accrued September 18, 1886, within two days of the expiration of six months after the account accrued. Plaintiff testified that the last item in his account was about September 23, 1886, and that he stated this item according to his books -Men he paid off his men, and stated no connection between these acts to fix that date.

Louis City Circuit Court. — Hon. Leboy B. Valliant, Judge. (1) The plaintiff did not prove ownership, and it is necessary to prove ownership in order to recover for dividends ; mere possession is not sufficient. Hughes v. Min. Co., 72 N. Y. 207; How v. Min. Co., 31 Cal. 629. (2) And the fact that the name of the party appears on the books of the corporation, as a shareholder, • is not prima-facie evidence that such party is the legal owner of such stock.

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. The court erred in refusing to vacate the award. Payne v. Oshea, 84 Mo. 129, bottom p. 133 ; Mayberry v. McOlurg, 51 Mo. 256. The facts in this case would justify the court in setting aside the award.' Chandler v. Fleeman, 50 Mo. 239 ; Hopkins v. Seivert, 58 Mo. 201. A court of equity will relieve against the partiality and corruption of an arbitrator. Heyeronimus v. Allison, 52 Mo. 102.

— Hon. C. A. Anthony, Judge. The court erred in permitting the state to read in evidence the record of road number 383, for the reason that it did not terminate with the terminus of the road mentioned in the indictment, the one commencing at Hughes bridge and the other terminating one half mile south and a mile and a half east of that point.

— Hon. Turner A. Gill, Judge. (1) The president of Star Coal and Mining Company had no power by virtue of his office to sell the personal or other property of the company or to assign the account sued upon, even if it were to pay a debt due from the company to plaintiff. Bank v. Farmers' L. & T. Co., 14 Wis. 329 ; Asher v. Sutton, 3 Am. & Eng. Corp. Cases (342) 344-6; Olney v. Chadsey, 7 R. I. (224) 228 ; Gashwiler n. Willis, 33 Cal.

— Hon. M. Gr. McGI-regor, Judge. Statement of the case by the court. This is a quo warranto proceeding, instituted in the circuit court of Jasper county, September 27, 1887, by the prosecuting attorney of said county, at the relation of J. M. Rice, against the defendant, a justice of the peace, of the city of Sarcoxie, Sarcoxie township, Jasper county, Missouri.

— Hon. J. M. Sandusky, Judge. (1) The account or statement filed in the probate court by respondent does not state facts sufficient to constitute a cause of action. Woods v. Land, 30 Mo. App. 181. Respondent should have averred in his complaint that Adam 0. Woods promised to pay respondent. The promise must be alleged. In assumpsit this is necessary. This allegation is the gist of the action. Nor is the failure to allege a promise cured after verdict.

—IIon. Richard Field, Judge. (1) The court erred in overruling defendant’s objection to the introduction of any testimony. The petition does not state facts sufficient to constitute a cause of action. The court also should have sustained the motion in arrest for that reason. The wheat sold in June and the wheat bought in July, at a sum aggregating $7,906.25, was not paid for in whole, or part, and was not to be delivered until in the future.

— How. J. M. Sandusky, Judge. (1) There was no authority in Bassett to lease the land to defendants and they got none of the estate of the owners, Mrs. Long and Mrs. Crockett, because the estate of R. Long could have no agent other than an administrator appointed in this state, who would have no power to lease except for two years upon order of court, and because the married owner of the land could make no lease for years by agent except through powers of attorney joined in…

— Hon. O. T. Garner, Special Judge. Statement by the court: This is a suit to have delivered up, and cancelled, five negotiable promissory notes, executed by plaintiffs to defendant, in consideration of a five years’ lease of land, and also to rescind the contract of leasing. The lease and notes were drawn up by def endant and were all executed December 31, 1883; the term of the lease was to commence March 1, 1884, and expire March 1, 1889.

— Hon. Gr. D. Burgess, Judge. (1) There having been testimony offered tending to prove all issues made by plaintiff and entitling him to recover, the court erred in giving the demurrer. Gibson a. Zimmerman, 27 Mo. App. 90; Jackson a. Ins. Co., 27 Mo. App. 62; Baum a. Fryrear, 85 Mo. 151; Groll a. Tower, 85 Mo. 249 ; Hoeninger a. Yog el, 88 Mo. 589.

— Hon. Richard Field, Judge. Statement by the court. This suit is the result of two suits combined. The first suit was instituted in the probate court by Johnston and Vance, executors of Wm. B. Johnston, deceased, against James Wingfield, guardian of Samuel Johnston, minor, for a balance of $394.96 alleged to have been overpaid on rent of farm for the ten years that said Johnston occu pied the same from March 1,1877, to March 1, 1887.

— Hon. O. M. Spencer, Judge. (1) The county court being a court of special and limited powers, there is no presumption in law that it had jurisdiction to grant a license to the relator to keep a dramshop, and unless its jurisdiction appears upon the face of its proceedings, its acts are void. Haggard v. Railroad, 63 Mo. 303 ; Schell v. Lelantí45 Mo. 292; Etz v. Wheeler, 23 Mo. App. 449 ; Fisher v. Roves, 27 Mo. App. 325.

— Hon.' Riciiaed Field, Judge. (1) The evidence showed that pending the proceedings for the appropriation of the right of way, respondent owning erections standing on the right of way, but having no interest in the land, tore down the erections and sold the materials and received the proceeds of such sale, to his own use. The materials therefore were not appropriated.

— Hon. 0. W. Sloan, Judge. Statement of case by the court. Joseph Brown, prior to 1880, was duly appointed and qualified as the assignee of the Warrensburg Savings Bank. On the twenty-second day of March, 1880, the plaintiff was allowed by said assignee his claim for $2,082.65; and on the eleventh day of March, 1881, said assignee declared a dividend thereon in favor of plaintiff for the sum of $520.65.

— Hon. M. Gr. McGtRegor. Judge. (1) Prior to the act of 1875, Revised Statutes, 3296, personal chattels of the wife vested absolutely in the husband and became subject to his debts. Alexander ■o. Lydiclc, 80 Mo. 341. (2) The money claimed to have been inherited by plaintiif, Nancy Bethel, was a chose in possession, and not being her separate estate vested absolutely in her husband, Hiram Bethel, and was subject to his debts. Terry v. Wilson, 53 Mo. 493.

Mrror to the He Kalb Circuit Court. — Hon. O. M. Spencer, Judge. (1) The court erred in holding that the original petition did not show jurisdiction in the county court to grant the license. - Taylor’s right to the license had been judicially ascertained and it was not necessary to state the facts upon which the judgment was based. School Hist. v. Landerbaugh, 80 Mo. 190. It was not necessary that the pleader should use the exact words of section 3551.

— Hon. Richard Field, Judge. (1) The court below erred in admitting illegal and incompetent evidence to the jury, on the part of inter-pleader, against the objections of and to the prejudice of garnishor, the American Bank as follows, viz: R. S., 1870, p. 622, sec. 3655 ; Clements v. Tates, 69 Mo. 623, at p. 625-6. A cause of action cannot be made even by written instructions different from that made by the pleadings.

— Hon. John E. Rye and, Judge. (1) We insist that said excluded evidence was perfectly competent and should have been permitted to go the jury on the questions of defendant’s mistake and belief as to the age of young Rathert. Whether or not such facts and circumstances as detailed in said excluded evidence would create the belief in the mind of the defendant that young Rathert was of full age, and that defendant was without fault. Bish. Stat.

— Hon. Richard Field, Judge. (1) The verdict was against the law and against the evidence. (2) The court erred in excluding the letter written by respondent, copied in abstract, pages 41 and 42-. Coughlin v. Haeussler, 50 Mo. 128; Budd v. Hoffheimer, 52 Mo. 297. (3) The court erred in admitting the testimony of James Waterhouse as to what report he made to respondent after the contract at Lexington had been completed.

— Hon. Riohaed Field, Judge. (1) The plaintiff’s petition does not state facts sufficient to constitute a cause of action, and defendant’s objection to introduction of evidence should have been sustained. It was necessary for plaintiff to allege and prove that defendant knew the cattle were diseased cattle, or at least that he knew, they were Texas cattle. McAlister ®. Railroad, 74 Mo. 358; Bradford ®. Floyd, 80 Mo. 212; Pattee ®. Adams, 37 Kan. 133 ; 14 Pac.

— Hon. O. M. Spenoeb, Judge. (1) The-court erred in finding for defendant, John H. Baker, instead of finding f or plaintiff for one hundred and fifty dollars and interest thereon at six per cent, from January 1, 1887, and rendering judgment accordingly. R. S. 1879, secs. 658, 661; Salimarsh v. Howe & Yandeventer, 10 Mo. 38 ; Woodhouse v. Duncan, 13 N. E. Rep. 334 ; McDonald v. Qlough, 12 Pac.. Rep. 121. (2) The court erred in not granting plaintiff a new trial.

J. II. Slover, Judge. Statement of facts. At the date herein mentioned, the plaintiff corporation was engaged in a manufacturing business at Akron, Ohio, and defendants were, until 1879, attorneys at Pleasant Hill, Missouri. It was, it seems, about this time that defendant Adams came to Kansas City, and defendant Sherlock went to reside in Kansas.

— Hon. J. H. Slover, Judge. (1) This is certainly a case in which a demand is-necessary before a suit ; section 1018, Revised Statutes, does not apply to a case like this, in which a notice and demand is necessary to fix a liability and give a cause of action to the plaintiffs. Welsh v. Taylor, 38 Mo. 545; State v. Mooney, 65 Mo. 494; Lobdell v. Hopkins, 5 Cow. 516; Beardsley v. Boyd, 37 Mo. 180; Boss v. Clark, 27 Mo. 549; Daily v. Sharkey, 29 Mo.. App. 518.

— Hon. E. L. Edwards, Judge. The indictment was insufficient in law to support a judgment. “The rule is that where the indictment is based upon a statute creating the offense, an offense unknown to the common law, the indictment must set forth all the constituent facts and circumstances necessary to bring the accused perfectly within the statutory provisions.” This point was made by defendant both in his motion to quash the indictment and in arrest of judgment. State 0.

— Hon.E. L. Edwards, Judge. “Proceedings in case of loss : — It being understood and agreed that all proceedings after a loss shall be in accordance with the terms and stipulations printed on the back of this policy, which are hereby declared to be a part of this contract, and are to be resorted to in order to determine the rights and obligations of the parties hereunto.” “No agent has power to waive any condition of this contract.” The appellee had full notice of the…

— Hon. E. L.. Edwards, Judge. Statement of tlie case. Plaintiffs were real-estate agents, residing in Boon-ville, Missouri. Defendant lived in Kansas City, Missouri, and owned real estate in Abilene, Kansas, consisting of town lots, which he was desirous of selling or trading for other property. In May, 1887, defendant wrote plaintiffs a letter authorizing them to sell or trade his lots, or any portion of them, and giving them the terms on which they might do so.

•Error to the Cooper Circuit Court. — Hon. E. L. Edwards, Judge. (1) It is clear that the term student, as used in said statute, only applies to persons who are minors, that is, to persons who are under the control of parents or guardians, — such students as have parents or guardians. Mott v. Railroad, 48 Am. Rep. 595. (2) “ In strict construction, no case is to be brought within the statute unless completely within its words.” Bishop on Stat.

— Hon. Gr. H. Burokhartt, Judge. (1) Respondent’s petition is based solely on an alleged false and misleading abstract of title, which was alleged to have been furnished him by appellants. No other cause of action is alleged. The evidence wholly fails to support the allegations of the petition. It not only fails to support the petition but proves the contrary. Respondent’s demurrer to the evidence should therefore have been sustained. Ourley ». Railroad, 93 Mo. 447.

— Hon. Gr. H. Burckhartt, Judge. (1) It is an established rule of construction that where general words follow particular ones, the general words will be limited in their meaning and restricted in their operation to things of a like kind and nature with those particularly specified. State v. Bryant, 90 Mo. 535 and cases ; City St. Louis n. Laughlin, 49 Mo. 559 ; City St. Joe v. Porter, 29 Mo. App. 605 ; Knox City v. Thompson, 19 Mo. App. 523 ; Bank t>. Tinsley, 11 Mo.

<p>Practice: when general verdict is error. It is the settled rule in criminal, as well as civil, actions, that a genéral verdict for the plaintiff is improper where several distinct causes of action are joined in the indictment or petition, as it cannot be determined to which of the counts it applies ; and such verdict is only permissible where the different counts are simply different statements of the same cause of action.</p>

— Hob. W. I. Wallace, Judge. (1) The court erred in sustaining the demurrer to the last amended petition. There are but two points in the case: (a) In this case, should the last petition be treated as an amendment of the original petition, and not of the first or second amended petitions ? (5) Is the last petition an amendment or a departure ?

— Hon. J. M. Sandusky, Judge. (1) At common law it was the duty of every man to restrain Ms cattle within the limits of his own inclosure ; and for an injury resulting from disease communicated by them while trespassing upon the lands of others, the owner was as much bound as if he had voluntarily permitted them to go at large (Addison on Torts, 459; Cooley on Torts, 337); and. under our special stock law the same rule applies. Bradford v. Floyd, 80 Mo. 207.

— Hon. J. M. Sandusky, Judge. (1) The court erred in giving to the jury instructions numbered 1, 2, 3 and 4, asked by plaintiff, and in giving each of them. These instructions refer the jury to section 2124 of the Revised Statutes. It is the duty of the court to instruct the jury with respect to the law of a case, and it is improper to refer them, for any purpose, to the statutes to ascertain any issue of law involved in the case before them.

— Hon. J. M. Sandusky, Judge. (1) The court erred in giving the instruction number 6 of its own motion. The law of comparative negligence is not known in this state. “ The law has no scales with which to determine the comparative fault of the parties.” Welsh ®. McAlister, 13 Mo. App. 89-90 ; AshbrooTc ®. Railroad, 18 Mo. App. 290-305 and 306, and authorities cited. To such a comparison, the jury was directly invited by this instruction.

— Hon. J. M. Sandusky, Judge. (1) The condition in the sale that the hogs were to remain the property of the vendor, Collins, until paid for by the vendee, McComas, was void, it not being in writing, executed, acknowledged or recorded as provided in cases of mortgages of personal property. R. S. 1879, sec. 2505 ( second clause); Cooler ®. Johnson, 86 Mo. 533. In the above case the debt was prior to the sale. See respondent’s brief therein.

— Hon. J. M. Sandusky, Judge. Statement of the case. The plaintiff brought suit against defendant in the Platte circuit court, at the April term, 1886, for slander, in charging plaintiff with being a thief, and having stolen defendant’s turkey and knife.

— Hon. J. M. Sandusky, Judge. (1) The witness, McIntyre, testified from a sheet he ■ claimed to have transcribed from the respondent’s books at St. Lonis, the books not being present, and from the… Held: that these amendments were in the discretion of the trial court, which discretion' would not be disturbed unless grossly abused. Ensworth n. Barton, 67 Mo. 622; Chauvin ». Lownes, 23 Mo. 227.

—Hon. Gr. H. Bttrokhartt, Judge. Statement of the case. This was a suit brought by J. R. Baker to recover of Samuel T. Shaw $531.90, being one-half the sum plaintiff paid on note to John Carlisle made by J. M. Baker as principal and on which plaintiff and defendant were sureties. It was a suit for contribution between co-sureties.

— Hon. E. M. Hughes, Judge. (1) The court erred in overruling defendant’s objection to the introd uction of any evidence under the transcript and statement o f the justice. Badcenstoe v. Railroad, 23 Mo. App. 158 ; Badcenstoe v. Railroad, 86 Mo. 492 ; Rohland v. Railroad, 89 Mo. 180 ; Mitchell v. Railroad, 82 Mo. 106; Ward v. Railroad, 91 Mo. 169. (2) The railway company was not required to fence its track at the point where the animals entered upon the track.

— Hon. C. W. Sloan, Judge. Statement of the case. The defendant on the twenty-first day of July, A. D. 1887, owned and operated the L. & S. division of the Missouri Pacific Railroad Company. It also operated the Missouri Pacific Railway. The passenger trains on each road made connection at Pleasant Hill, the two trains meeting on parallel tracks in front of appellant’s depot at its station at Pleasant Hill. Plaintiffs were residents of Pleasant Hill.

— Hon. J. H. Shanklin, Special Judge. (1) The issues should be completely presented by the instructions, and the instructions must be framed with reference to the issues made by the pleadings, and should be predicated on all the issues made, by the pleadings and supported by the evidence.

— Hon. H. C„ O’Bryan, Judge. By chapter 105, volume 2, Revised Statutes of Missouri, section 5672, it is provided — “no person shall, keep a ferry * * * without a license; ” and section. 5685 declares such an act a criminal offense. Defendant had a right to show to the court that plaintiffs had no-such license, and therefore could not maintain an action, for trespass of a right which had never existed.

<p>1. Commissions: sale op real estate. The contract of a real-estate broker, who undertakes to sell the land of another for a commission, requires him to find a purchaser ready and able to make the purchase, or to respond in damages in the event of failure to perform his undertaking — to procure from and tender to the owner a valid written contract containing the terms of the sale, which the owner may enforce by law, if necessary; or else to produce such a purchaser to the owner, ready and able to complete the contract, if the vendor will make the conveyance. These conditions being fulfilled, and not otherwise, the broker may compel the payment of his commissions by the owner, even though the sale be not eventually perfected. The owner may, however, to the like effect, waive the performance of such conditions on the part of the broker, by an absolute refusal to complete the contract, when advised by the broker that a purchaser has been found.</p> <p>2. Commissions : sale of real estate. If a real-estate broker, having bargained for the sale of his principal’s land, refuse to inform him who is the proposed purchaser, the owner may right, fully assume that the broker is himself speculating in the property of his principal, and may refuse to close the transaction, without being liable to the broker for his commissions.</p>

— Hon. W. D. Hubbard, Judge. If the property is liable to creditors, it can only be reached by a bill in equity divesting her title. Ciarle v. Dynes, 53 Mo. 380. The presumption of law is that the consideration expressed in the deeds from Daily to Nancy Good was paid by her husband Dan Good, and therefore the land is apparently subject to the claim of creditors. Sloan v. Terry, 78 Mo. 625.

Hon. E. M. Hughes, Judge. The burden of proving incompetency of Miles and defendant’s knowledge thereof rested upon plaintiff. Huffman v. Railroad, 78 Mo. 50; Murphy v. Railroad, 71 Mo. 202; Wood on Master and Servant, p. 800, sec. 419; Sher. & Redf’d. Neg., sec. 99 ; Mass. v. Railroad, 49 Mo. 167.

— Hon. B. E. Turner, Judge. The court erred in excluding evidence tending to prove custom and usage of merchants of Memphis, Missouri, and members of the firm of T. S. Wise & Co. Cayton v. Harding, 27 Mo. 536 ; Edgell r. Manqueen, 8 Mo. App. 71; Roble v. Metcalf, 20 Mo. App. 361; Ackley v. Stochlin, 56 Mo. 558 ; Thompson v. Riggs, 5 Wall. 679; Renner ¶. Bank, 9 Wheat. 582 ; Cadwell v. Scott, 54 N. H. ; Ins. v. Bennett, 13 Am.

Louis City Circuit Court. — Hon. Leeoy B. Yalliant, Judge. The amended petition states a cause of action. R. S. 1879, sec. 3511; Bliss Code PI. [2 Ed.] sec. 229; Pars. Cont., sec. 501.

Original petition for mandamus. It is admitted, or at least not denied, that the statement as made by the judge — or grounds for granting second new trial — or rather setting aside second verdict was a mistake, and that no such matter ever occurred and that respondent in consequence was not justified in setting aside the verdict, inasmuch as the sole reason assigned for so doing did not, and never did, occur in this case. .