Volume 38 — Missouri Appeal Reports

— Hots. John E. Ryland, Judge. (1) The court committed error in refusing to give the first instruction asked by the defendant. The ■ evidence was strong, uncontradicted and convincing, that the beer was sold, in the absence of the defendant, and without his knowledge, and in violation of his desire and express and positive orders. This being the case, the defendant was not guilty, and the jury should have been so instructed.

Appeal-from the Saline Circuit Court. — Hon. Richard Field, Judge. (1) The motion for a new trial ought to have been sustained, (a) Because there was no substantial evidence on behalf of defendant that plaintiff was a principal on the M. G-. Brown note.

— Hon. Richard Field, Judge. Under no construction of the law could the injunction be denied and any judgment rendered for damages in favor of the plaintiff; damages in injunction suits follow the sustaining of the prayer i'or injunction.

— Hon. Richard Field, Judge. (1) The demurrer to the evidence of plaintiff should have been sustained. Plaintiff claimed the property by virtue of the deed of trust, and the description of the sorrel mare, mentioned in the deed of trust, was no such description as would distinguish her from the general class of sorrel mares. Stoneloralcer v. Ford, 81 Mo. 533; Hughes v. Menefee, 29 Mo. App. 203.

— Hon. Richard Field, Judge. (1) The eight-hundred-dollar note and deed of trust have never been settled nor satisfied. The testimony, in order to establish this, should be clear, cogent and reasonable; in its character, clear and forcible; in its nature, positive and definite. Ells v. Railroad, 51 Mo. 200;. Forrester v. Serville, 51 Mo. 268; Ringo v. Richardson, 53 Mo. .396; Reiser v. Gammon, 95 Mo. 218; Jackson *.

— Hon. J. M. Sandusky, Judge. (1) “ In construing an instrument, the true intention of the framers is to be considered, and when necessary, the strict letter of the act, instrument or law must yield to the manifest intent. ” Riddiclc v. Governor, 1 Mo. 147 ; State v. Emmerson, 39 Mo. 80 ; State v. Krug, 44 Mo. 283. “The law does not favor the repeal of a statute by implication.” (2) “ A legislative attempt to repeal by a subsequent act will not be assumed if any other…

—IIon. Rudolph Hibzel, Judge. Statement by the court. This action was originally brought in the probate court of Maries county upon the following statement, viz.: “Estate of Eliza Robinson, deceased, “In acc’t with Emily Brock, wife of Peter Brock, Dr. “To care and attention, nursing and waiting on deceased, from July 31 to June 15, 1887, at the rate of thirty dollars per month — eleven months and fifteen days — as wages of her separate labor, $345.00.” There was a trial in…

— Hon. Chas. W. Sloan, Judge. (1) Plaintiff failed to prove that his animals were killed either in the township in which the suit was brought, or in an adjoining one, and therefore defendant’s demurrer to the evidence should have been sustained. R. S. 1879, sec. 2839; Mitchell v. Railroad, 82 Mo. 106; Backenstoe n. Railroad, 23 Mo. App. 148; Backenstoe v. Railroad, 86 Mo. 492; King v. Railroad, 90 Mo. 520; Wiseman v. Railroad, 30 Mo. App. 516; Kinion v. Railroad, 30 Mo.

'Appeal from the Cass Circuit Court. — Hon. Chas. W. Sloan, Judge. In case of a sale or delivery of personal property, upon the condition that the title of the same shall remain in the vendor, or deliverer, until the price of the property, or a certain sum, is paid, such condition is void as to subsequent bona fide purchasers, in good faith, and for value, unless the contract is reduced to writing, signed, acknowledged and recorded, as provided •in cases of chattel mortgages.

— Hon. N. M. Given, Judge. Statement of case by the court. This is an action to recover $224.63, and to enforce a mechanics’ lien against the property of defendant Lindsay, on account of lumber furnished by plaintiff, which went into defendant Lindsay’s house. It appears that Wm.

— Hon. Chas. W. Sloan, Judge. (1). The last item of defendant’s counter-claim being for damages in trespass, not growing out of. or connected with, the subject of plaintiff ’ s action, was not properly allowed by the court. R. S. 1879, sec. 3522; People v. Dennison, 84 N. Y. 272; Barnes v. McMullin, 78 Mo. 260. (a) Though this last item of counter-claim is sp+ up in the form of an account and pleaded in assumpsit, its true character cannot be escaped.

— Hon. Chas. W. Sloan, Judge. (1) Knapp was the special agent of the defendant, with only the authority to order the carriage and team of Poague, and defendant did not become liable to plaintiff by reason of his misfeasance for any damages he may have done. Bartlett v. Sparkman, 95 Mo. 136. It was incumbent upon every one dealing with Knapp to know the extent of his authority. Smith on Master and Servant [4 Ed.] pp. 259 (top), side 295.

— Hon. Chas. W. Sloan, Judge. (1) The first instruction given for the interpleader is wrong in two important particulars, (a) It tells the jury that said “deed of trust will be deemed bona fide and honest” (as against the plaintiff), “unless it is proven to be fraudulent,” thus making the recitals in said deed evidence' of a sufficient consideration, which is essential, as against plaintiff, who is a stranger thereto, and as to whom said recitals are mere hearsay, (b) In the…

— Hon. Chas. W. Sloan, Judge. (1) At the trial the court, on the request of defendants, excluded all evidence in support of th e second ground of attachment alleged in the affidavit, in the language of the statute. It would startle the ordinary practitioner if he should be furnished a precedent or authority for such doctrine, such ruling, such misunderstanding of the plain letter of the law. (2) The first instruction given for the defendants is wrong.

— Hon. Chas. W. Sloan, Judge. (1) The well-settled rule of law is, that where a note of a third party is taken in payment of a preexisting debt, or a contemporaneous consideration, it is treated prima facie as a conditional payment only, that is, as payment only if paid at maturity; and the authorities all agree that there must be an express agreement that the vendor shall take the note absolutely as payment, and at his own risk, or it will be no payment, if it afterward…

— How. G-. D. B [jiiG-Ess, Judge. (1) The court below erred in giving plaintiff’s instruction number 1, because said instruction, in authorizing the jury to assess plaintiff’s damages at whatever sum they believe from the evidence he' is entitled to, was misleading, and liable to cause the jury to draw on their own notions for reasons for mulcting a railroad corporation in heavy damages. Weaver v. Hendrick, 80 Mo. 502.

— Hon. Gr. D. Burgess, Judge. (1) Unless the evidence showed that the land claimed by plaintiff was substantially injured, or depreciated in value, by the alleged overflow of water, he was not entitled to recover, and the court erred in restricting and limiting defendant’s evidence to mitigation of damages only.

— Hon. O..M. Spencer, Judge. (1) The policy purported to insure Daniel Ransom against loss by fire “ on his two-story, brick, shingle-roof building.” The acceptance of the policy thus worded, with the condition therein that ‘ ‘ if the assured is not the sole, entire and unconditional owner of the property insured, and (if a building is insured) of the land on which the building stands, by a sole, unconditional and entire ownership' and title in fee simple, * * * without…

— Hon. Yinton Pike, Special Judge. (1) It was error to refuse to Instruct the jury, at the close of plaintiff ’ s case in chief, to find for defendant. (a) The answer sets up the defense of other and additional insurance held by plaintiff, not permitted by the policy sued on. The reply admits that plaintiff did have and hold other insurance, and set up as an avoidance that the defendant waived such insurance, and the endorsement of said additional insurance on said policy.

— Hon. O. M.. Spencer, Judge. Statement of the case by the court. This is an action for damages for overflowing, and thereby injuring, plaintiff’s property at Rushville, Missouri. “The amended petition, on which it was. tried, was filed, January 11, 1889.

— I-Ion. ,T. P. Grubb, Judge. This question must be answered in the negative for two reasons: (a) Because there can be no assignment, either in law or in equity, of a portion of a debt without the debtor’s consent. Burnett v. Crandall, 63 Mo. 410; Beardslee v. Morgner, 73 Mo. 22; Dickinson v. Coates, 79 Mo. 250; Snyder v. Railroad, 86 Mo. 620; Bank v. Noonan, 88 Mo. 372.

— Hon. M. Gf. McGregor, Judge. Statement of the case by the court. At the trial of this cause in the circuit court plaintiff introduced' evidence tending to establish the following facts, to-wit: That on the ninth day of October, 1886, plaintiff gave to defendant a mortgage upon certain goods and chattels to secure a debt of one thousand dollars, which mortgage was recorded in Jasper county.

<p>Practice, Appellate. Instructions, not warranted by any evidence ■ in the cause, are erroneous.</p>

<p>Practice, Trial: instructions. An instruction, declaring the effect ' of correspondence, is a comment upon the evidence, and is erroneous, when such correspondence is only persuasive, and not conclusive, evidence bearing upon the intent of the parties, a matter of fact in controversy.</p>

<p>Practice, Trial. One, who is surprised by the introduction of evidence at the trial, must, if he desire relief, at once ask it; it is too late to do so after the close of the trial.</p>

Louis City Circuit Court. — Hon. Daniel Dillon,- Judge. While the ordinary rule is that appellate courts will not entertain a point against the findings of a court or jury on the ground that such finding is .against the evidence, yet such rule is not one which will not admit of exception; and, where it appears from the record, that a judgment has not substantial evidence to support it, it will be reversed on appeal. Lionberger v. Pohlman, 16 Mo.

<p>1. Contract: quantum meruit. The fact, that a plaintiff who sues upon a building contract is himself in default in the performance of the contract, does not prevent a recovery under a claim of quantum meruit.</p> <p>3. Practice, Trial: instructions. An instruction which leaves to the determination of the jury what are the material issues in the cause is erroneous; it is the province of the court to define the issues.</p> <p>3 Justice of the Peace: sufficiency of statement. An account, filed as the cause of action in a suit instituted before a justice, though imperfect, will support a recovery, if it is sufficiently explicit to inform the defendant of the nature of the cause of action, and to bar another action for the same cause.</p>

<p>1. Landlord and Tenant. When, with the consent of all the parties in interest, a new tenant is substituted in the place of another, who is in possession as lessee, the transaction amounts to a surrender of the lease.</p> <p>3. Statute of Frauds. One bound as surety for the original lessee is discharged by such substitution, and an oral agreement by him, in consideration of said substitution to’ answer as surety for the obligations of the new tenant, is within the statute of frauds, and is not binding.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The respondent must be held to recover upon such ground of negligence as she alleged. This she has not done. Mdens v. Railroad, 72 Mo. 212; Schneider v. Railroad, 75 Mo. 295; Waldheier ». Railroad, ■ 71 Mo. 514; Buffington v. Railroad, 64 Mo. 246; Field v. Railroad, 76 Mo. 614. (2) The evidence adduced clearly demonstrated that the respondent Priscilla was firlly aware of the dangerous condition of the privy seat.

.Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. The contract set out in the petition, not being exclusive, was a good and valid contract at common law. Christie v. Railroad, 94 Mo. 453. The interstate commerce act is not retrospective, and does not affect contracts in existence at its passage. Chew Heong v. United States, 112 U. S. 536; MeEwen v. Bulkley, 24 How. 242; Harvey v. Tyler, 2 Wall. 328; Trades’ Union v. Railroad, 1 Interstate Com.

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

<p>1. Practice, Trial: judgment before return- term of writ. Judgment may be entered under Revised Statutes, 1879, section 3658, before the return term of the writ, and may be for the full amount claimed in the petition.</p> <p>2. Sales: statutory lien FOR purchase price. Under Revised Statutes, section 2353, a levy on property under an execution, issued upon a judgment against a purchaser, for the purchase price of the property, takes precedence over other prior levies on the same property.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Daniel Dillon, Judge.</p> <p>It was error to admit the evidence of Costigan concerning statements, alleged to have been made by Martin Michael several days after the accident, relating to the conduct of the pilot in charge of the vessel and tow. Rogers v. McCune, 19 Mo. 558; McDermott v. Railroad, 73 Mo. 513; Adams v. Railroad, 74 Mo. 553; O’ Bryan V. Kiyney, 74 Mo. 125; Aldridge v. Blast Co., 78 Mo. 559; Devlin v. Railroad, 87 Mo. 545; Leahy n. Railroad, 97 Mo. 165; Wengler v. Railroad, 16 Mo. App. 493; Railroad v. Decker, 82 Pa. St. 123; Packet Co. v. Clough, 20 Wall. 528; Railroad v. O’ Brien, 119 U. S. 9; Taylor on Evid. [7 Ed.] sec. 588-589. The fact that Martin Michael was the managing officer of the defendant company gave him no power, in the circumstances, to bind the corporation by his loose narrative statements. Waterman on Corporations, sec. 126; Henry v. Bank, 63 Ala. 527; Hodge v. Bank, 22 Grrat. 51; Bank ». Bank, 3 Grill, 96; Wyman v. Bank, 14 Mass. 58; Tripp v. Packing Co., 137 Mass. 499; Kalamazoo N. M. Co. v. McAlister, 36 Mich. 327. There was no legal evidence before the jury touching the market value of the ties lost, and the verdict is, in that respect, entire unsupported. The verdict is unsupported by substantial evidence, and the judgment for that reason should be reversed. Avery v. Fitzgerald, 94 Mo. 207; Schenck v. Sautter, 73 Mo. 46; Lidnberger v. Pohlman, 16 Mo. App. 392; Fischer v. Merchants’’ D. T. Co., 13' Mo. App. 133.</p> <p>The admission made by, Mr. Michael is a part of the ■“ res gestee,” and was had before any railroad ties were •delivered. Schuttler v. Exp. Co'., 5 Mo. App. 316; Adams v. Railroad, 74 Mo. 556; Meagher v. Railroad, 14 Mo. App. 501; Bevis v. Railroad, 26 Mo. App. 22; Burgert v. Borchert, 59 Mo. 87; 1 Gfreenl. on Ev., secs. 108-9; Darreit v. Donnelly, 38 Mo. 492; State v. Schneider, 35 Mo. 533; Augusta Factory p. Barnes, 18 Rep. 105; Hazleton v. Bank, 32 Wis. 49; Spalding v. Bank, 9 Pa. St. 30; Gould v. Bank, 56 Howard, 513; Bank v. Field, 2 Hill. [N. Y.] 445; Railroad v. Trousiine, 64 Miss. Rep. 845; Thompson on Carriers, .539; Curtis v. Railroad, 49 Barb. 148; Morse v. Railroad, 6 Gray,' 450. The objection of defendant to this testimony was erroneous, also, in that it was to any or all conversations had between Michael and plaintiff after the accident, when plaintiff was demanding his property. Looking at the objection in its most favorable light for defendant, it should have been specific, and, if at all, it should have pointed at certain portions of the interview. Grand Rapids Co. v. Diller, 110 Ind. 225. The objection made being only general was insufficient. St. L. Agrl., etc., Ass'n v. Delano, 37 Mo. App. 284; Eaton v. Ins. Co., 32 Mo. App. 53; SchmucJcer v. Spelbrink, 25 Mo. App. 356; Taussig v. Shields, 26 Mo.App. 569, 572; Bank v. Westlake, 21 Mo. App. 569, 572; Johnson v. Railroad, 22 Mo. App. 600; Primm v. Rabotean, 56 Mo. 407; Wayne Go. v. Railroad, 66 Mo. 77; Ring v. Canada Line, 14 Mo. App. 579; Davis v. Hilton, 17 Mo. App. 322. There was ample testimony for the case to go to the jury on the question of the value of the railroad ties. Easton v. Woods, 1 Mo. 507; Stevens v. Springer, 23 Mo. App. 385; State ex rel. v. Johnson, 1 Mo. App. 220; State v. Jacob, 2 Mo. App. 186.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Daniel Dillon, Judge.</p> <p>The case made by the petition is clearly within the ruling of the supreme court of Missouri, in the cases of Ward v. Davidson, 89 Mo. 454; Roan v. Winn, 93 Mo. 503. There is no conflict between the ruling laid down in Foster v. Mullanphy Planing Mill Go. (92 Mo. 79), and the ruling in Roan v. Winn. But, if there is any conflict in principle, the latter case must be held to-overrule the former. Where the d'ebt is ascertained, liquidated and admitted, and the debtor is insolvent, and has no property within ' the jurisdiction whereon execution or attachment may be levied, it is not necessary to obtain a judgment, or issue execution. Turner v. Adams, 46 Mo. 95; Sav. Ass'n v. Kellogg, 52 Mo. 590; Heralson v. Mason, 53 Mo. 213.</p> <p>(1) Plaintiff not being a judgment creditor and not having a lien upon the property by attachment cannot proceed in the way he seeks to proceed. Martin v. Michael, 23 Mo. 50; Merry v. Freeman, 44 Mo. 518; Alnutt v. Leper, 48 Mo. 319; Grim v. Walker, 79 Mo. 335. The corporation had the right to prefer its co-defendants. Foster v. Mill Go., 92 Mo. 79.</p>

<p>1. Actions, Collusive. An amicable suit may be brought to determine the respective rights of the parties thereto; but, if its purpose be to affect the rights of one who is not a party, it is collusive, and will not be entertained.</p> <p>2. Administration : redemption of encumbered property. Semble that when an administrator, in good faith, and in the interest of the estate, but without any order of the probate court, redeems property which is mortgaged and largely in excess in value over the amount of the mortgage debt, he may be allowed credit for the outlay in his accounts in the probate court.</p>

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. The plaintiff was under no obligation to investigate for himself. He had a right to assume that there were no defects. Devlin v. Railroad, 87 Mo. 545; Parsons v. Railroad, 94 Mo. 286; Porter v. Railroad, 60 Mo. 160; Dale v. Railroad, 63 Mo. 455.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The refusal by the circuit court of the instruction asked by appellant was erroneous. The word “endorser” was used in its technical sense by the parties. This distinguishes the case at bar from Bojjer v. Boogher, 11 Mo. App. 130.

Loiois City Circuit Court.— PIon. Jas. E. Witheow, Judge. Instruction marked “A,” as given by the court, on its own motion, should not have been given, and the court erred thereby. Shelley v. Boothe, 73 Mo. 74; Albert v. Besel, 88 Mo. 150 ; Frederick v. .Allgaier, 88 Mo. 601; Sexton v. Anderson, 95 Mo. 373.

Louis City Circuit Court.— Hon. Leroy B. Valliant, Judge. The court erred in admitting and considering a great mass of incompetent evidence. Conversations between plaintiff and her father, mother and sisters, relative to her alleged complaints; quarrels between her sisters and members of defendant’s family; alleged quarrels between herself and defendant’s family; all in the absence of defendant, and even without proof that he had been made acquainted with these affairs.

<p>Appeal from the St. Louis City Circuit Court. — Rots. Daniel D. Fisher, Judge.</p>

<p>Justice of the Peace: prosecution of appeal from. If notice of an appeal from a justice be not given, when required by the -statute, the appellee’s right, on account thereof, to an affirmance of the justice’s judgment is not affected by his special appearance in the circuit court, both at the return term, and at the next succeeding term, for the purpose of moving for such affirmance.</p>

<p>Appeal from the St. Louis Gity Circuit Court. — ELon. Daniel D. Fisher, Judge.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge! The court improperly allowed defendant to withdraw his plea of the statute of limitations and change the character of his defense, which was in contradiction to that made in his answer. Appellant was taken by surprise by the character of the defense, inasmuch as it was in direct contradiction of the answer filed, and in direct opposition and contradiction to the defense made in the justice court, and in the trial then had.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. It is only where the contract has been substantially or imperfectly performed that a recovery can be had for the value of the work actually done, though inferior to that called for in the contract. Mansur v. Botts, 80 Mo. 651; Haysler v. Owen, 61 Mo. 270; Williams v. Porter, 51 Mo. 441; Rude v. Mitehell, 97 Mo. 365. There is no difference between this case and that of Gruetzner v. Furniture Go., 28 Mo. App. 263.

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

<p>1. Husband and Wife: right or action. . Money due for the keeping of a horse at a livery stable conducted by a married woman, the contract being executed, belongs to the wife, and suit therefor does not lie in the name of the husband alone.</p> <p>2. Practice, Trial: amendment : substitution of parties. If such suit be instituted in the name of the husband alone, the wife cannot be made a party plaintiff by amendment. Such an amendment would constitute a change of the cause of action, since there would be a complete change in the party plaintiff, the wife being the real plaintiff after the amendment.</p>

<p>1. Practice, Trial: venue. An action of replevin must, under Revised Statutes, 1879, as amended in 1887, be brought in the county in which the property is found.</p> <p>2. Practice, Appellate: reviewing the evidence. A verdict found under proper instructions, and supported by substantial evidence, will not be reviewed on appeal.</p>

<p>Appeal from the Scotland Circuit Court. — Hon. Ben. E. Turner, Judge.</p> <p>A full and complete tender is equivalent to payment as to all things which are incidental or accessorial to-the debt. Kortright v. Cady, 21 N. Y. 343; Stoddard v. Hart, 23 N. Y. 556; 'Hartley v. Tatham, 1 Keys, 222; Frost v. Bank, 10 N. Y. 553; 78 Amer. Dec. 150; Jones on Mortgages [3 Ed.] secs. 893, 911; Thorington v. Bank, 71 Mo. 221; Olmstead v. Tarsney, 68 Mo. 396. A competent tender gives the mortgagor under the statute the right to sue for the penalty. Jones on Mortgages [3 Ed.] sec.. 991; Barnard v. Harrison, 28 Mich. 518. Pull tender made is satisfaction of the mortgage, and the lien is discharged. See authorities above cited and Salinas v. Ellis, 2 S. E. Rep. 121. And a tender made after law day is as effectual as though made on law day. Jones on Mortgages [3 Ed.] sec.-893.</p> <p>Plaintiff’s petition does not state facts sufficient to constitute a cause of action. R. S. 1879, secs. 3311, 3312 and 1008; Laws of Mo. 1881, p. 172; Laws of Mo. 1887, p. 224; 2 Jones on Mortgages, secs. 891-894; Crumbly v. Bardon, 36 N. W. Rep. 19; Landis v. Saxton, 89 Mo. 379; Verges v. Giboney, 47 Mo. 171.</p>

<p>Appeal from the St. Louis City Circuit Court.— Hon. Leroy B. Valliant, Judge.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. James. E. Withrow, Judge.</p> <p>This suit having been commenced and prosecuted in the firm name, and the individual names of the parties comprising the firm not appearing in any of the proceedings, there was a complaint by nobody, and, on motion of appellant, the proceedings should have been dismissed. HammersmiJi v. Hilton, 8 Mo. App. 564; Seeley v. Schenck, 2 N. J. L. 35; Smith v. Caulfield, 8 Mich. 493; Blackwell v. Reid, 41 Miss. 102 ; Crandall ®. Danny, 2 N. J. L. 101.</p> <p>Partners may sue and recover in their firm name. House v. Duncan, 50 Mo. 453 ; Beattie v. Hill, 60 Mo. 75; Orr v. How, 55 Mo. 328 ; Fowler v. Williams, 62 Mo. 403. The plaintiffs had the right, moreover, to amend and set out the names in full of the partners. R. S. 1879, sec. 3060; Gregory v. Railroad, 20 Mo. App. 448; Teiman v. Goodnight, 17 Mo. App. 429. An appellant cannot complain of errors which are not prejudicial to his interests. Davis v. Hilton, 17 Mo. App. 319; Akers v. C larkson, 6 Mo. App. 601; Heiman v. Fischer,■ 11 Mo. App. 283; Nance v. Met-calf, 19 Mo. App. 183.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Daniel Dillon, Judge.</p> <p>The court erred with respect to the expenses of sale and the garnishee’s commissions. Kersey v. Garten, 77 Mo. 645; Gilson v. Gwynn, 107 Mass. 126; Wyckoff v. Hotel Co., 24 Mo. App. 390; Schlereth v. Railroad, 96 Mo. 509; Nugent v. Curran, 77 Mo. 328. Mrs. Thompson was bound to make a new selection of exemptions. Finley v. Sly, 44 Ind. 266; Beckner u. Rule, 91 Mo. 62; Wygant v. Smith, 21 Dans. 185; Steele v. Leonori, 28 Mo. App. 681; Thomp. on Homest. & Ex., sec. 855. It was error to rule out the evidence tending to show that in August, 1886, the wife of defendant was about to remove out of the state with intent to change her domicile, and that subsequently she had actually removed from the state with such intent. Fielder r>. Jessup, 24 Mo. App, 96; Steele v. Leonori, 28 Mo. App. 684; R. S. 1879, secs. 416, 2520, 2524; State v. Kingsbury, 33 Mo. App. 519. The garnishee was properly refused permission to prove the special defense set up in his reply. Osborn n. Schutt, 67 Mo. 712; State v. Barada, 57 Mo. 566; State v. Barnett, 96 Mo. 133.</p> <p>Mrs. Thompson was entitled to claim the statutory exemption. Nash v. Norment, 5 Mo. App. 545; State v. Dell, 60 Mo. 435. ' A fortiori, where the plaintiff herein agreed with Mrs. Thompson that the exempt, attached and separate property should be sold without disclosing which was which, she is estopped from claiming the proceeds of the. sale of the exempt property. Austin v. Loring, 63 Mo. 19; Justice v. Lancaster, 20 Mo. App. 559; Farley v. Pettes, 5 Mo. App. 262; Sav. Ass’n v. Keillor, 7 Mo. App. 158; Taylor r>. Saugrin, 1 Mo. App. 312;, Guffey v.’ O'" Reilly, 88 Mo. 418; Austin v. Loring, 63 Mo. 19; PelMngton v. National Ins. Go., 55 Mo. 172; Fenwiclc v. Wheatley, 23 Mo. App. 641. The judgment was excessive.</p>

<p>1. Pleading: sufficiency of account. In an action for materials furnished and work done, without any special contract or separate price for any of the items, a petition stated the time and place and the particulars of the work and labor, but did not contain, or have attached to it, an account stating separately the price or value of each item; held, that an objection did not lie to the introduction of any evidence under the petition on account of the absence of such account.</p> <p>3. Practice, Trials variance. In an action for the price of a boiler supplied under a contract, which required it to be made “of Park Bros.’best flanged steel,” the absence of evidence, that the boiler furnished was made of such steel, does not amount to such entire failure of proof as to preclude any recovery for the boiler.</p> <p>3. -:-. If, in such case, it appears that the boiler was made of flanged steel, substantially of the same quality and value, and equally as suitable for the boiler, as the steel of the special make contracted for, the right to recover for the boiler is not affected by this deviation from the terms of the contract.</p> <p>4. Witness, Competency of. In such case, a witness, who has no knowledge whether the steel used was of the make of Park Bros., is not competent to testify to his impression that it was.</p> <p>5. Instructions. An instruction based on a theory, not consistent with the issues made in the pleadings, is properly refused.</p> <p>6. Practice, Appellate. A judgment will not be reversed, on appeal, for error which did not materially effect the matter in issue.</p>

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

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

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

<p>\ Practice, Appellate: affirmance for failure to file transcript. If the appellant fails to file his transcript within the time required hy law, or to show good cause for the omission, the appellee’s right to an affirmance will not be affected by the filing of the transcript by the appellant prior to the appellee’s application for such affirmance.</p>

<p>1. Judgment: entirety or entry. A record entry of a final judgment with award of execution, and concluding with an allowance to a referee, is not necessarily an entirety, so as to make the allowance an inseparable part of the judgment; and a subsequent order setting aside the entry of judgment and entering judgment for another amount, but making no reference to the allowance, does not of itself affect the latter.</p> <p>3. Practice, Trial: fee bill. A referee, in whose favor an allowance has been made and taxed as costs, is not entitled to a fee bill for the collection thereof prior to the final determination of the cause; and, if the cause is pending on appeal, no fee bill can issue, though no supersedeas bond was given by the appellant. (Revised Statutes, 1879, section 5595, construed.)</p>

<p>1. Accident Insurance: construction of policy. A policy of insurance against injury by accident, which merely provides that the insured shall be indemnified against loss of time in a certain sum per week, during the period of disability to work, not exceeding twenty-six consecutive weeks, does not entitle the administrator of the insured to any damages in the case of an accident causing the instant death of the insured.</p> <p>2. Practice, Appellate : non-prejudicial error. The admission of incompetent evidence is not ground for the reversal of the . judgment, when the evidence could not have been prejudicial.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon: Jacob Klein, Judge.</p> <p>“The law does not require any thing unreasonable of the holder to ascertain the residence or place of business of the maker, but due diligence is required ; and if the maker * * * cannot be found after due inquiries * * * the holder will be relieved of any other efforts to make presentment.” Every possible exertion is not exacted. Only ordinary diligence. Plahto v. Patchin, 26 Mo. 392; Chitty on Bills, sec. 454; Browning v. Einnear, Gow. 81. Due diligence has been exercised if inquiry has been made of “such accessible persons as from their connection with the transaction, or place, or parties, are likely to be informed, and in acting in accordance with the information derived from them.” 2 Daniel on Neg. Inst. [3 Ed.] secs. 1115, 1116, 1117; Gilchrist v. Donnelly, 53 Mo. 591, interpreted by Wolf v. Burgess, 59 Mo. 584; Chapman v. Lipscomb, 1 John. 293, 296 (294). If any information is given by a person who pretends to know, and that is acted on in good faith, that constitutes due diligence. Beale v. Parish, 20 N. Y. 407; Lambert v. Gheselin, 9 How. 452; Ransom v. Mach, 2 Hill, 587-592.</p>

<p>Appeal from the Scotland Circuit Court. — Hon. Ejdward Higbee, Special Judge.</p>

Louis City Circuit Court. —Hon. Leroy B. Valliant, Judge. The petition filed stated no cause of action, in that it failed to allege any negligent act or omission of defendant, contributing to the injury complained of. Lionberger v. Pohlman, 16 Mo. App. 392; Taylor v. Fox, 16 Mo. App. 527; Gurley ¶. Railroad, 93 Mo. 445. The admissions of defendant, and the evidence, fail to show any negligence on the part of defendant, or any one in his employ.

— Hon. E. M. Hughes, Judge. (1) The burden was on plaintiff to establish by evidence the negligence charged. Randle v. Railroad, 65 Mo. 325; Fitch v. Railroad, 45 Mo. 322; Stepp v. Railroad, 85 Mo. 231. ’ (2) No rate of speed of the train, at the place of the accident, was negligence per se. Powell v. Railroad, 76 Mo. 80; Lord v. Railroad, 82 Mo. 142; Wallace v. Railroad, 74 Mo. 594; Main v. Railroad, 18 Mo. App. 388.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The instructions given by the court of its own motion are ambiguous, misleading, and ignore facts essential to recovery. Birtwhistle v. Woodward, 95 Mo. 115; Waddingham v. Hulett, 92 Mo. 528; Muehlhausen v. Railroad, 91 Mo. 344; Yanhooser v. Berghoff, 90 Mo. 487; Bank v. Overall, 90 Mo. 410; Bank v. Murdock, 62 Mo. 70; Thompson v. School District, 71 Mo. 495; Crews v. Lackland, 67 Mo. 619.

Loids City Circuit Court. — Hon. Daniel Dillon, Judge. (1) It was error to admit the orders of the circuit . court in evidence. In re Young, • 7- Fed. Rep. 855; Curran v. Craig, 22 %Fed. Rep. 107; Hill v. Balcer, 111 Mass. 511. (2) It was error to admit evidence of any acts or orders made or done after the institution of this suit. (3) The third instruction given for defendant is entirely erroneous. Delano v. Curtis, 7 Allen, 471; 1 Chitty on PI. [16 Am.

<p>Mechanic’s Lien. One who agrees to furnish materials for a building, and thereon does so, will not be deprived of a mechanic’s lien by reason of the fact, that the building was not specified at the time he agreed to furnish the materials, and that he did not then know the location, character or ownership of it.</p>

<p>1. Common Carriers : pleading. In au action against a common carrier on a contract for the carriage of a horse, charging that tho horse was killed, while in transit, through the negligence of tho carrier, it is not essential for the plaintiff to establish the negligence in the first instance, since, in the absence of a special contract, the carrier would ordinarily be liable under his common-law obligations.</p> <p>2. -: NEGLIGENCE: special CONTRACT. A common carrier cannot, by special contract, exonerate himself from liability for the’ negligence of himself or his servants; nor can the carrier limit the amount of his liability for negligence', though there may be an agreement for liquidated damages, made in good faith, and in ■ reliance upon representations of the shipper.</p> <p>3. -: -. Although the owner agreed to load, and did load, the horse on the car of the carrier, and negligently left it untied, still, if the carrier moved the oar while the horse was loose, and injury resulted therefrom, the carrier is liable, provided that the injury was one likely to result from its action under the circumstances.</p> <p>4. Instructions. The refusal of an instruction, warranted by the evidence and correctly stating the law, is error, notwithstanding the improbability of the truth of such evidence.</p> <p>5. -: NOT warranted by evidence. An instruction based upon a hypothesis of fact, not established by any- evidence in the cause, is erroneous.</p>

<p>Appeal from the Knox Circuit Court. — Hon. Ben. E. Turner, Judge.</p>

<p>1, Sufficiency of Evidence to Take Case to Jury. Evidence examined, and held sufficient to warrant submission to the jury of the issues, whether a purchase of the goods in controversy was made with the intention on the part of the purchaser never to pay therefor, and whether a pledgee, claiming under such purchaser, was affected with knowledge or notice of such intent.</p> <p>2. Sales: insolvency of purchaser: evidence of his intention never TO pay for property. Insolvency of a vendee, though known to himself, is not ordinarily proof of an intention on his part never to pay for the purchase, unless the purchase be made shortly before the vendee’s failure, and with knowledge on his part that his business is hopelessly swamped, or unless there is substantial evidence of other circumstances to support the inference of such an intention.</p> <p>3. -: -: CASE OE PURCHASE BY A corporation. A corporation, organized under the laws of Missouri, is practically dead, when it suspends business owing to its insolvency; and its inability ever to pay for the purchases, if known to its agents, is tantamount to an intention on its part never to pay therefor.</p> <p>4. -: RIGHT OF SUB-VENDEE OE FRAUDULENT PURCHASER : BURDEN OE proof. When an intention on the part of a purchaser never to pay for his purchase is shown, one who claims the property as his sub-vendee must show the payiueut of a valuable consideration, and good faith on his part in a general way; on such proof the burden shifts to the original vendor to show that the. sub-vendee purchased with knowledge of the fraudulent intention of the original vendee, or with knowledge of facts sufficient to put a man of ordinary prudence upon inquiry as to that matter.</p>

<p>Appeal from the 81. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.</p> <p>The power of exchange and substitution conferred on the mortgagor by the mortgagee rendered the mortgage fraudulent as to creditors and void in law. Goddard v. Jones, 78 Mo. 518; Bullene v. Barrett, 87 Mo. 185. It having appeared affirmatively, from plaintiff’s own testimony, that it was the intention of the parties that the mortgagor should remain in possession, and dispose of the property covered by the mortgage, conditioned only upon his obligation to replace such as he might dispose of by other property of equal value, rendered the mortgage fraudulent in fact as to creditors. The trial court, therefore, should have so instructed. Bump on Fraud. Conv., pp. 123-4-5; MUburn v. Waugh, 11 Mo. 369; Brooks v. Wimer, 20 Mo. 503; Weller v. Wimer, 24 Mo. 63; Martin v. Maddox, 24 Mo. 575; Martin v. Rice, 24 Mo. 581; Stanley v. Bunce, 27 Mo. 269; Billing sly n. Bunce, 28 Mo. 547; Lodge v. Samuels, 50 Mo. 204.</p>

<p>1. Practice, Appellate: res adjudioata : second appeal. When the sufficiency, or insufficiency, of evidence to support an issue has been once determined on the appeal of a cause, this determination is conclusive on a subsequent appeal of the same cause, if the evidence he substantially the same on both appeals.</p> <p>2. Law and Fact: reasonable time. Whether the change of possession, required by Revised Statutes, 1879, section 2505, on the sale of personalty, has taken place within “a reasonable time, regard being had to the situation of the property,” is, ordinarily, a question of fact for the jury.</p> <p>3. Practice, Trial: failure to except. An appellant is in no position to object to the refusal of the trial court to discharge a jury, for misconduct of one of the jurors, if no exception thereto, on his part, is shown by the record.</p> <p>4. Practice, Appellate: non-prejudioial error. The admission of evidence, claimed to be incompetent, is not prejudicial, and is no ground for reversal of the judgment appealed from, when it is merely cumulative of other undisputed evidence, and the matter established by it is not seriously controverted.</p> <p>5. Evidence: res inter alios. A claim of statutory exemptions, made by an attachment defendant out of property levied upon under the attachment, is not competent evidence in a suit for the wrongful conversion of the property, brought against the attachment plaintiff by a third person, who claims the property as his own.</p> <p>8.--: COMPETENCY OF EVIDENCE OF A PARTY OR WITNESS AS SET forth in a prior bill of exceptions. When a party and his witness are present in court, their testimony on a former trial, as set forth in a bill of exceptions, is not competent evidence against such party. (Bogie v. Nolan, 96 Mo. 85, distinguished.)</p>

<p>Appeal from the Pike CirGuit Court. — Hon. E. M. . Hughes, Judge.</p>

<p>1. Practice, Appellate: cross-appeals : transcripts in . such CASES. When cross-appeals are taken in a cause, the parties may jointly file one bill of exceptions in the trial court, and one transcript in the appellate court, or each appellant may file his own bill of exceptions and transcript.</p> <p>2. -: COSTS OF TRANSCRIPT filed jointly. If but one transcript is filed by the parties jointly, each appellant should pay his share of the cost thereof.</p> <p>3. -: right of parties to stipulate for consideration of evidence IN other transcripts. When several causes, depending partly upon the same evidence, are not consolidated under the statute (R. S. 1879, sec. 3656), but are tried together, and an appeal is taken in each, the transcript in each must contain all the evidence pertinent to it. The evidence presented in the transcript of one will not he considered in the other, upon stipulation of the pai’ties that it shall be considered in the latter, in so far as it is competent and relevant.</p> <p>4. Practice, Appellate: review of findings of fact. When parties to an oral contract differ as to its terms, and the contention of each is supported by evidence, the finding of the trial court cannot be reviewed, if no instruction was given or requested.</p> <p>5. -: dismissal OF appeal. There being cross-appeals, and one of the appellants failing to file any assignment of errors, statement or brief, his appeal is dismissed.</p> <p>6. Evidence: presumption of title from possession. The possession of personal property by one who claims it as his own is prima facie evidence of ownership.</p>

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

<p>Practice, Appellate: review of findings of fact. In an action at law this court will not review a finding of fact of the trial -court, supported by substantial evidence and made under appropriate instructions.</p>

<p>Appeal from the Clark Circuit Court. — Hon. Ben. E. Turner, Judge.</p> <p>(1) Plaintiff’s instruction number 1 should not have been given, because: First. As to whether or not there was a contract made between plaintiff and defendant, by which defendant agreed to pay plaintiff two -dollars per day for running the engine of a steam •thresher, was a question of fact, to be found by the jury and not by the court. Farley v. Peters, 5 Mo. App. 262; Folson v. Cook, 9 Atl. Rep. 93; Bodkin n. McIntyre, 81 Mo. .55; Dennis n. Crooks, 23 Mo. App. 532. The court in this instruction substantially declares to the jury there was a contract between plaintiff and defendant that defendant would pay plaintiff two dollars per day for running the engine. The vital question in the case, and which the jury was called to determine, is summarily determined for them by the court. (2) Courts are not authorized to say what facts, or words or actions, indicate the agreement between the parties. Bodlcin v. McIntyre, 81 Mo. 557. The jury were bound to find, and, it was a question of fact for their determination, whether the defendant assented to the plaintiff ’s proposition. The instruction undertakes to determine the fact of such assent, and was therefore erroneous. State v. Wheeler, 79 Mo. 366; Matthews r>. Railroad, 26 Mo. App. 89.</p> <p>Instruction number 1, given for the plaintiff, was not erroneous. Banchor v. Gregory, 9 Mo. App. 102; Zimmerman v. Railroad, 71 Mo. 476; Rea v. Ferguson, 72 Mo. 225; Myer v. McOabe, 73 Mo. 236; Noble v. Metcalf, 20 Mo. App. 360; Bank v. York, 89 Mo. 369. Under the facts found by the jury, the defendant is estopped from disputing the plaintiff’s construction of the contract. Finley v. Bettis, 5 Mo. App. 262; Bigelow on Estoppel [2 Ed.] 511, 514; Sav. Ass’nv. Kehlor, 7 Mo. App. 158; Taylor v. Saugrain, 1 Mo. App. 312; Weise v. Moore, 22 Mo. App. 530; Austin v. Boring, 63 Mo. 19; Belkington v. Ins. Co., 55 Mo. 172; Miller ». Anderson, 19 Mo. App. 71.</p>

<p>Appeal from the Scotland Circuit Court.- — Hon. Ben. E. Turner, Judge.</p> <p>The notice required by the statute in this case is not an original process, and there is no form of notice, except original process, which may be invalidated by reason of its being served in an improper manner, provided it be received in due time. . Wade on Notice [1 Ed.] sec. 1337; Burdett v. Lewis, 7 C. B. (N. S.) 791. A notice by letter received in a case like this, by due course of mail, is sufficient. Meriden, etc., Co. v. Flory, 7 N. E. Rep. 753; Wade on Notice [1 Ed.] sec. 1337. There can be no question but that the notice was good in form, the statute being remedial. Bouton's Adm'r v. Lacy, 17 Mo. 399. The contents of the notice may be proved' by parol testimony, and in cases of this kind a notice to Conway to produce at the trial the original notice was unnecessary. Christy's Adm'r v. Horne, 24 Mo. 242; Johnston o. Mason, 27 Mo. 511.</p> <p>The evidence of the service of notice, offered by the appellants, was incompetent. R. S. 1879, secs. 3896, 3897, 3898; Hyde v. Coldsby, 25 Mo. 29; Fuler v. McClure, 25 Mo. 418; Sapington ». Jeffries, 15 Mo. 629; Christy1 s Adm'r. v. Horne, 24 Mo. 242.</p>

<p>1. Practice, Appellate: manner of assigning error. When complaint is made, on appeal, of the admission of evidence by the trial court, the evidence objected to should be set forth with a reference to the pages of the record, where it is to be found. A mere statement of its import, without further specification, will not entitle the appellant to a review of the ruling complained of.</p> <p>2. Instructions: common error. An appellant is in no position to complain of ¡instructions', given for his adversary, as unsupported by substantial evidence, when instructions, given at his own instance, are not materially different from those complained of.</p> <p>3. Pleading : proximate and consequential damages. Claims for general or proximate and those for consequential damages, arising from the same cause of action, may be united in one count.</p> <p>4. Damages for Breach of Warranty: profits. When profits are altogether contingent and uncertain, and dependent not solely on a compliance of the thing sold with the warranty, but also on other conditions not covered by the warranty, they cannot be included in the damages assessed for the breach of the warranty.</p>

<p>Appeal from, the Pike Circuit Court. — Hon. E. M. Hughes, Judge.</p> <p>There is no evidence tending to show either that Pohlman ever asked an extension of time on said notes, or that plaintiff ever suggested any such extension, or that any extension was agreed upon so as to suspend plaintiff ’ s right of action. This case does not differ in any material respect from that of Russell ». Brown, 21 Mo. App. 51. See also Rosea t>. Rowley, 57 Mo. 357; Coster v. Mesner, 58 Mo. 549. The payment of interest in advance will not of itself establish an agreement for an extension. See cases above cited.</p> <p>There was abundant testimony to support the verdict. The payment of interest in advance several times, the circumstances surrounding such payments, the statement of the cashier that his custom in regard to notes was to require renewal at maturity, or, in lieu thereof, the payment of interest advance, the testimony of the bookkeeper, Pollard, that. when the bank gave extensions of time the credits were endorsed as payments of interest so as to be evidence of the extension; all tended very strongly to show agreements to extend the time. In fact these items of testimony cannot be explained on any other theory. An agreement to extend time of payment need not be proven by direct testimony. It may be established by circumstances. The case of Bussell v. Brown, 21 Mo. App. 51, is not parallel to the case at bar. In that case there was no testimony whatever to show an extension except the payment of interest.</p>

- — Hon. E. M. Hughes, Judge. (1) The court should have submitted the issue at the commencement of the trial, so soon as the issues were made up by the pleadings. R. S-. 1879, -secs. 3601, 3603; Proffatt on Jury Trial, sec. 94. The defendant at the close of plaintiff’s testimony asked the court to submit an issue.

— Hon. E. M. Hughes, Judge. See brief of respondent in Price, respondent, v. Reed, appellant, ante, p. 589 (1) The prayer for affirmative relief in the answer was proper under the Code. Rem. and Rem. Rights, Pomeroy, secs. 91-97; Townsend v. Meagher, 44 Mo. 356.

— Hon. E. L. Edwards, Judge. (1) It devolved upon the state to prove that defendants did unlawfully sell fermented and malt liquors without having taken and subscribed an oath and given bond, as required by law of all persons before selling or offering to sell such liquors. There was no proof that defendants had failed to take the oath and give the bond required by law.

<p>Administration: final settlement. Where the probate court, a referee in the circuit court, and the circuit court,by their several findings, have approved the final settlement of an administrator, and the errors and delinquences of the administrator were mere matters of form, and not of substance, such judgment will be affirmed.</p>

— Hon. E. L. Edwards, Judge. (1) In 1887, plaintiffs had two rights of action, arising from the same cause, namely: The failure of defendant, during the years 1885 and 1886, to maintain a lawful fence through plaintiffs’ premises.' The first for damages to plaintiffs’ meadow by stock getting in upon it repeatedly during the year 1885. The second for damages to the same meadow, by stock, during the year 1886.

— Hon. G. H. Btjrokhartt, Judge (-1) The court erred in giving instructions numbered “one” for respondent. The instruction is misleading, and is not based on the evidence. (2) The trial court erred in giving instruction number “two” for respondent. There was absolutely no evidence of any legal contract for the sale of the corn, there having been no legal contract, there could be nothing to rescind. R. S. 1879, sec. 2514; Gibbons ■».

- — Hon. J. M. Sandusky, Judge. (1) The petition is fatally defective, in failing to allege that plaintiff is an adjoining owner, or that his animals were lawfully upon the premises whence they escaped upon the right of way. Ferris ». Railroad, 30 Mo. App. 124; Berry v. Railroad, 65 Mo. 172; Harrington r>. Railroad, 71 Mo. 384; Johnson «.

- — ITon. Richard Field, Judge. (1) The demurrer should have been sustained. The1 petition does not state a cause of action: First. There is no allegation in the petition that plaintiff is entitled to the penalty sued for. This is a necessary allegation. Vandeventer v. Vancourt, 1 Pennington [2 N. J.] 168. Second.

— Hon. Chas. W. Sloan, Judge. (1) The gravamen of the petition was for a negligent sale of sulphuric acid on application to purchase sulphuric ether. The court submitted a case for negligently failing to label sulphuric acid. This was error. Brown v. Railroad, 80 Mo. 460; Class v. Celvin, 80 Mo. 297; Bank v. Armstrong, 62 Mo. 59; Paint & Color Co. v. Conlon,- 92 Mo. 221. (a) A party can only recover on the case he makes in his pleading.

— Hon. O. M. Spencer, Judge. The trial court erred: (1) In giving judgment for the plaintiff after finding that George Keener, deceased, and the defendant had contracted for the benefit of the interpleader, Katie Keener.

— Hon. Silas Woodson, Judge. (1) The court should have sustained the motion in arrest of judgment, as the indictment failed to substantially charge in the language of the statute any public offense. The indictment does not charge( that, at the time of the alleged sale of the diseased meat, the defendant sold it without making its condition fully known to the purchaser. Neither does it charge a sale of the flesh of the alleged diseased animal to any person.

— Hon. M. Gf. McGregor, Judge. (1) ’ The circuit court of Jasper county acquired no jurisdiction in this matter. Two separate and distinct cases being brought up in one appeal and no appeal bond giyen, and O. P. Garrison’s motion to dismiss the appeal should have been sustained. R. S. 1879, sec. 2616; R. S. 1879, sec. 293; R. S. 1879, sec. 294; Session Acts, 1881, page 35. The case of Hall v. Audrain County Court, 27 Mo. 329, relied on by respondent, does not control.

— Hon. M. Gr. MoG-regor, Judge. (1) The council of the city had no authority to order the election, as it is admitted in the case that there was not sufficient number of voters signed either one of the two petitions upon which the order was made, and the petitions were dissimilar in every respect.

— Hon. M. Gr. McGregor, Judge.' (1) Defendant’s instruction numbered 1 in the nature of a demurrer to plaintiff’s evidence should have been given, and it was error to refuse it. State v. Metzger, 26 Mo. 65; Wright v. Railroad, 25 Mo. App. '236; Palmer v. Railroad, 21 Mo. App. 437; Backenstoe v. Railroad, 23 Mo. App. 148; Roberts v. Railroad, 19 Mo. App. 649; Mitchell v. Railroad, 82 Mo. 106; Backenstoe v. Railroad, 86 Mo. 492; King v. Railroad, 90 Mo. 520.

— Hon. J. M. Davis, Judge. (3) “The contract of insurance, as all know, is a contract of indemnity, upon the terms ■ and conditions specified in the policy of insurance. It is a peculiar contract, and one of hazard purely. We-may not make a new contract for the parties, but rather it is our duty to enforce and carry out one already made.” Mfg. Co. v. Ins. Co., 21 Conn. 19, 31; lesson v. Ins. Co., 40 Mo. 33, 36.

— Hon. J. M. Davis, Judge. (1) The condemnation of land for light of way can only be accomplished through the courts, and in accordance with the proceedings prescribed by the statutes. This proceeding is judicial, and to be effective must culminate in a judgment. See R. S., article six (6).

— Hon. J. M. Davis, Judge. Plaintiff sued the defendant before a justice of the peace for damages, by reason of the negligence of defendant in permitting fire to escape from his premises onto the plaintiff’s premises and destroying the plaintiff’s property. Damages were laid at $54.60. On the application of defendant, a change of venue was awarded, and the cause transferred to another justice.

— How. J. M. Davis, Judge. (1) The petition alleges that Andrew Eller was insolvent, both at the time of the execution of the deed, and at the commencement of the suit; and that he had no other means or assets out of which the debt could be made; that the interest of Andrew Eller was such an interest in the land as was subject to levy and sale under execution, prior to the enactment of the married woman’s act; see section 2497, Revised Statutes, 1879, Schneider v. Steihr, 20…

— Hon. J. M. Davis, Judge. (1) Section 14, of ordinance number 19, revised ordinances of the city of Chillicothe, Missouri, was a lawful exercise of the power given to the city by its charter, which gives the city the right “to regulate, license and restrain runners for cars, stages and public houses.” See subdivision twelfth, of section 2 of article 4 of the city charter, in relation to the legislative powers of the city council. St. Johnsbury v. Thompson, 9 Atl.

— How. D. A. DeArmond, Judge. (1) . The county court was not the general agent of the county; its powers are limited, and, if it exceeded its authority, its acts were void. Sturgeon v. Hampton, 88 Mo. 203. (2) The county court had no jurisdiction to order anything not called for in the petition. Turner v. Bondalier, 31 Mo. App. 582. (3) The county court, being a court of limited jurisdiction, jurisdiction must appear on the face of the proceedings.

— Hon. D. A. DeArmond, Judge. (1) There was no judgment on the plea in abatement in justice of the peace court and consequently nothing from which to appeal. Young, • AdnTr, v. Stonebraker, 33.Mo. 117; Adams, Adm’r, v. Trigg, 35 Mo. 190; Hubbard v. Quisenberry, 28 Mo. App. 20.

— Hon. Turner. A. G-iul, Judge. (1) The agreement between plaintiffs and the Fords was valid as a mortgage upon the property in their possession at the time it was executed, and also upon the property thereafter acquired by them. Replevin would therefore lie for the recovery of the possession of such property.

— Hon. J. H. Slover, Judge. (1) The transcripts are not properly authenticated. It must appear by the certificate, or by the judgment proper, that the judge who undertakes to attest the record is the judge of the court which rendered the judgment. And the clerk of the court must attest the record. Barlow v. Steele, 65 Mo. 612-619; Phelps v. Tilton, 17 Ind. 420; Morris v. Patehin, 24 N. Y. 394; Settle v. Allison, 8 Ga. 201; Preem. Judg. [3 Ed.] sec. 413.

— Hon. J. H. Slover, Judge. (1) The contract sued on provides in express terms that no claim shall be made under it when the death or injury may have been caused by duelling or fighting, or by intentional injuries inflicted by the insured or any other person, or by voluntary exposure to unnecessary danger. (2) The contract declared on is one which furnish'es indemnity against accidents only. This is expressly stated.

— Hon. J. H. Slover, Judge. (1) The court ought to have found for the defendant.' In this case there is absolutely no evidence that the cattle that were killed went through tlie defective fence onto the track. The only witnesses that were there on the evening of the accident testified that the gate leading from the pasture onto the right of way, which gate was near the scene of the accident, was standing wide open.

— Hon. Turner A. Gill, Judge. (1) The last (third amended) petition ordered filed by the court, and upon which the judgment is based, was the substitution of a new and entirely different cause of action, and not an amendment of the original petition, and required different proof.

— PIon. Henry P. White, Judge. (1) The defendant asks for a reversal of judgment on the ground that the ordinance in evidence is unreasonable and unauthorized by the charter of the city, proposes the taking of the property of the citizen without due process of law, and that the legislature of Missouri could not enact a similar law; that regulation is the only police power the city can exercise in this matter under the charter.

— Hon. R. M. Field, Judge. (1) It was error to admit testimony as to the cost of building retaining walls, and raising the property to a level with the street as graded by the city. It was admitted that the plaintiff had done neither, and that Ms vendee had not spent any money for retaining walls and that the same would be unnecessary in the future, and the evidence had no tendency to prove any material fact in issue.

— Host. J. H. Slover, Judge. (1) At the time of the alleged sale of the stock, no price being fixed, the law implied a promise on the part of the defendant to pay its then market value, and nothing more. Wood’s Mayne on Damages, sec. 12, pp. 14-16; Henckley v. Hendrickson, 5 McLean, 170; Honitzky v. Meyer, 49 N. Y. 571; Shields v. Pettie, 4 N. Y. 122, 125; Hill v. Hill, 1 N. J. L. (1 Coke) 261; Gibson v. Pub. Co., 28 Mo. App. 450.

— Iíon. R. EL Field, Judge. (1) The complaint does not state a cause of action. It alleges no demand. R. S. 1879, secs. 2420 and 2423; Farwell v. Easton. 63 Mo. 446. (2) The complaint is not verified by affidavit as required by law.