Volume 40 — Missouri Appeal Reports

<p>Quantum Meruit. In an action of quantum meruit for service» rendered, a recovery is not warranted in the absence of evidence either of the reasonable value of the services or of a special contract fixing the rate of compensation. The evidence in this cause considered, and held by a majority of the court not to support the verdict.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. The court erred in holding that the plaintiffs were not bound by the limitation regarding the amount of loss provided for by the receipt given by the defend.ant. It is competent for a common carrier, by the contract of carriage, to limit the amount of his liability in case of loss, and the rule is the same whether the . loss was occasioned by the negligence of the carrier or not. Brown v. Railroad, 18 Mo.

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

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

<p>1. Apprentices: custom. The apprenticeship of a minor is not valid or binding, unless made by indenture pursuant to the requirements of the statute. And a custom of otherwise apprenticing minors, being contrary to the positive mandate of the statute, is illegal.</p> <p>2. Damages. When a person is held liable for wrongfully and maliciously procuring the discharge of a servant by his master, the measure of damages is the same as in the case of a suit by the servant against the master for a wrongful discharge.</p> <p>3. -: burden of PROOF. The burden of proving in such case, in mitigation of damages, what the servant earned or could have earned during the period of time in question, is on the defendant. And proof that the servant secured other employment during such period, without any evidence as to what was earned by him, held not to entitle the defendant to complain that the jury did not make sufficient allowance for such earnings in their verdict.</p> <p>4. Practice, Appellate. When a cause has been once appealed and, being remanded, is tried in accordance with the opinion of the appellate court, error cannot be assigned of the rulings of the trial court in so doing, the decision of the appellate court being res adjudicata.</p>

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

Louis City Circuit Court. — Hon. Daniel D. Pisiiek, Judge. When any judgment or decree is satisfied otherwise than by execution, the party in whose favor the same was rendered shall immediately thereafter enter an acknowledgment of satisfaction thereof in the court where the same was allowed. R. S. 1879, sec. 2747. The acknowledgment so made shall forever discharge and release the judgment or decree. R. S. 1879, sec. 2751.

<p>Appeal from the Montgomery Circuit Court. — TIon. E. M. Hughes, Judge.</p>

—Hon. Ben. E. Turner, Judge. (1) The court erred in sustaining the plaintiff’s motion to strike out part of defendant’s answer, if the matter stricken out tendered any defense, in whole or -in part, to the action or any part of the action. Justice v. Town of Lancaster, 20 Mo. App. 559; Kerr v. Simmons, 82 Mo. 269. (2) The matters pleaded were largely mitigating circumstances and justifications for the shooting, and it was necessary to plead them.

(1) The petition in this case does not contain the very necessary allegation that the petitioners are assessed. The motion of the remonstrators to dismiss the petition ought to have been sustained. It was decided in the case of State ex rel. Campbell v. Heege, 37 Mo. App. 338, that these words in a dramshop petition were jurisdictional words, and that, unless the petition contained these words, the county court had no jurisdiction to act on the petition.

—How. Chas. W. Sloan, Judge. Statement by the court. The first count of plaintiff’s petition is as follows: “Plaintiff complains and alleges : “(1) That on the fifth day of September, A.' D. 1887, at Cass county, Missouri, by contracts under their hands and seals, defendant contracted and agreed with plaintiff to pay plaintiff the sum of sixteen hundred dollars, upon its completion, for the erection of a two-story frame house with kitchen, on the farm of defendant, near…

- — Hon. Chas. W. Sloan, Judge. (1) The paper styled an affidavit for an attachment was a nullity because (1) it lácked the signature of the affiant, and (2) the jurat was unsigned. Ha/rgadine v. VanHorn, 72 Mo. 370; Burnett v. McCluey, 78 Mo. 677, loc. cit. 689 ; Bray v. McCluey, 55 Mo. 128 ; Owens v. Johns, 59 Mo. 89. The motion to quash the writ of attachment was the proper procedure to raise the question. Owens v.- Johns, supra.

— How. Rudolph Hikzel, Judge. (1) The court erred in requiring the interpleader to assume the burden of proof. Albert v. Beset, 88 Mo. 150; Butter v. Gutzweiler, 39 Mo. 91; Knapp, Stout & Co. v. Joy, 9 Mo. App. 47; EazeTl v. Bank, 95 Mo. 60. (2) The giving of the judgments against Jacobs in evidence was wrong. The judgments were prematurely rendered. Interpleader was no party to those suits.

— Hon. Oliver M. Spencer, Judge. (1) Courts do not take judicial knowledge of the statutes of Illinois — that has to be proven the same as any fact. Flato r>. Mulhall, 72 Mo. 525; Myer v. McCabe, 73 Mo. 236 ; White v. Chaney, 20 Mo. App. 396.

— Hon. E. L. Edwards, Judge. Statement of the case by the court.

<p>Appeal from, the Cooper Circuit Court. — Hon. E. L. Edwards, Judge.</p> <p>(1) The court erred in refusing each of the instructions asked by the execution plaintiff, Charles A. Everett. Growing timber is an interest in lands, and any conveyance thereof, to be effectual, must be by deed under seal. R. S. 1879, sec. 674; Mcllvaine v. Harris, 20 Mo. 457 ; Deland v. Vanstone, 26 Mo. App. 297; Andrews v. Costican, 30 Mo. App. 29; Creen v. Armstrong, 1 Denio, 550; McGregor v. Brown, 10 N. Y. 114; Slocum v. Seymour, 36 N. J. 138 ; 1 Benjamin on Sales [4 Am. Ed.] sec. 120; 1 Washburn on Real Property [6 Ed.] 14. (2) The attempted sale of the growing timber by White, the owner of the land, to Steinbrink, it not being by deed under seal, created a mere license in Steinbrink to enter on the land, and cut and remove the timber. Andrews v. Bostican, 30 Mo. App. 29 ; Fuhr v. Dean, 26 Mo. 116. (3) Stein-brink’s interest, being a mere license, could not be sold by him to Potter. A license to be exercised upon the land of another is a personal trust and confidence, and is not assignable ; although it may be binding as between the parties, it will not pass to a purchaser. Fuhr v. Dean, 26 Mo. 116 ; Howe v. Batchelder, 49 N. H. 204; Carletoh ». Redington, 21 N. H. 291; Cowles v. Kidder, 24 N. H. 364; Bmmerson v. Fisk, 6 Grreenl. (Maine) 200 ; Mendenhall ®. Klinck, 51 N. Y..246, 258; Daniels v. Bailey, 43 Wis. 566 ; Morrill v. Mackman, 24 Mich. 279; Kamphouse v. Gaffner, 73 111. 453; Manning v. Frazier, 96 111. 279; Browne St. Frauds [4 Ed.] sec. 22; 1 Washburn Real Prop. 623, 399. (4) If the attempted sale by White to Steinbrink had been by deed under seal, and acknowledged, this would have operated as a severance in law of the growing timber, converting it into personalty; and Steinbrink by oral contract could then have sold to Potter; otherwise not. Kingsley ». Holbrook, 45 N. H. 313. (5) The attempted sale by White to Steinbrink, not being by deed under seal, did not operate as a severance of the growing timber, and there could therefore be no possession of the growing timber separate from the possession of the land. White being the owner, and in possession of the land, was also in possession of the timber growing on it.- Renshaw v. Lloyd, 50 Mo. 368; Railroad v. Freeman, 61 Mo. 80; Bell v. Clark, 30 Mo. App. 224; Owens v. Lewis, 15 Am. Rep. 295, loe. cit. 321; Schuleriberg v. Harriman, 21 Wall. 44. (6) Even if the attempted sale by White to Steinbrink was suffi-. cient (which we deny), yet the attempted sale by Steinbrink to Potter was not sufficient under the statute of frauds. The price exceeded thirty dollars, and there was no part payment. The agreement to discharge or cancel a debt is not a part-payment, under this statute. Combs v. Bateman, 10 Barb. 573; Fox v. Hall, 74 Mo. 315 ; Benjamin on Sales [4 Am. Ed.] sec. 192. (7) The proceeding under section 2366, Revised Statutes, 1879, is cumulative as a remedy. It does not deprive the claimant of his remedy by replevin, trover or trespass, or his action against the sheriff on his bond. As in the other cases, this proceeding is “a formal trial in court of the rights of property.” Houx v. Shaw, 18 Mo. App. 45 ;• Stephen v. Springer, 23 Mo. App. 375 ; State ex rel. Mastin v. McBride, 81 Mo. 349 ; Gartside v. Nixon, 43 Mo. 138; Fleming v. Clark, 22 Mo. App. 218.; Schulénberg v. Harriman, 21 Wall. 44 ; Bosse v. Thomas, 3 Mo. App. 472; Stern Auc. & Com. Co. v. Mason, 16 Mo. App. 473; Young v. Glasscock, 79 Mo. 574.</p> <p>(1) At the time of the levy of the execution the claimant Potter had such an interest in the timber in controversy as he could protect under section 2366, of the Revised Statutes, 1879. He had purchased it of Steinbrink with the consent and approval of thé owner of the land; he had, by authority of the owner of the land, entered upon the land and was engaged in cutting and removing said timber, and the same had been fully paid for. Mcllvaine v. Harris, 20 Mo. 457. (2) We admit that Steinbrink only obtained from the owner of the soil a license to enter on the land and cut and remove the timber, and we admit that such license could not be sold by Steinbrink, except with the consent and approval of the owner of the soil. But the assent of White, the owner of the land, to the sale of Steinbrink to Potter, his authority to Potter to enter upon the land thereunder and cut and remove the timber therefrom, and his acceptance from him of the balance of the purchase money, were in effect a revocation of the license to Steinbrink, and the granting a new license by the owner of the land to Potter, under which Potter held possession at the time of the levy. (3) Claimant’s contention is that his interest in the timber, as shown by the foregoing facts, coupled with the actual possessions of the land and timber, authorized him to maintain a proceeding under section 2366. Fuhr v. Fean, 26 Mo. 116, and Andrews v. Costican, 30 Mo. App. 29, are the principal cases relied upon by appellant’s counsel, and are lacking in every essential element of actual possession either of the land or timber; and are therefore not “on all fours” with the case at bar.</p>

— Hon. E. L. Edwards, Judge. (1) The appellant had a perfect right to dispute the title of the respondent to the machine he got of him, and to take upon himself the onus of showing that the latter had no title to the property. He ascertained this fact by taking the machine to St. Louis for the purpose of clearing up the mystery connected with the machine and the sale thereof by some unauthorized party. He found it was stolen property, as he believed.

— How. E. L. Edwards, Judge. (1) The evidence wholly fails to show an acceptance of the deed by any one authorized to accept the same for the defendant. On the contrary, at the trial the plaintiffs were in possession of the same, produced the same, and offered it in evidence, but did not tender it to defendant.

— How. Gr. H. Buecki-iaett, Judge. ' 1) The issue joined in the cause by the pleadings was whether or not defendants were liable for the damage alleged to have been done plaintiff by the use of a sewer put in on the University grounds from the privies in the west end of the University building to a branch or ravine near Sixth street, and the evidence should have been confined to that issue.

— Hon. J. M. Sandusky, Judge. (1) This is a suit on a c on tract for sale of a lease, at a price to be fixed by “appraisers.” Leonard v. Cox, 64 Mo. 34. And the contract is an entirety, the consideration for one part being the consideration for every part. 3 Amer. & Eng. Ency., p. 916, and numerous cases in note 93. (2) The court erred in overruling the plaintiffs’ “demurrer,” and in admitting evidence on part of defendant, because: First.

<p>1. Frauds and Perjuries: original promise : collateral promise. In order to hold one for the price of goods delivered to another, in the absence of a writing, it is not only necessary to show a promise on his part, but it is requisite to show that the credit was given solely to the party making the promise; and if the party receiving the goods, or for whose benefit the promise was made, be himself liable at all (except it be a joint promise), the case falls within the statute of frauds. The promise in this case held under the evidence not original.</p> <p>3. Pleading: recovery. Plaintiff can recover upon no other caus.e of action than that upon which he declares.</p>

— Hon. J. M. Sandusky, Judge. (1) Upon tlie finding of tlie facts, as made by the court in this cause, the judgment, under the law, must have been for the defendant. (2) It was not only competent to sell the property “in a lump,” but under the circumstances of this case it was incumbent on Thompson to do it. The manner of the sale was according to the request of the owner of the property.

— Hon. Richard Field, Judge. (1) The court erred in admitting in evidence the letter from Mulhall & Co., dated January 19, 1885, directed to the Missouri Pacific Railway Company. First. It was in no sense of the term a notice of his claim for damages for injury to the stock, as required by the terms of the sixth clause of the contract under which they were shipped. Nor is it sworn to. Second.

— Hon. Richard Field, Judge. (1) The construction placed upon the written contract by the acts and conduct of the parties is that the defendant was to ship the wheat in such quantities as suited him by the carload; and that the plaintiffs were to pay cash for it as it was received. Defendant, when he shipped the three cars, drew on plaintiffs for the value of the three cars.

— Hon. O. M. Spencer, Judge. (1) The contract entitles plaintiff to final payment “when the whole job is completed and accepted.” The petition alleges, but the court rejected our offer to prove, performance by plaintiff and acceptance by the defendant. The allegation stands admitted here.

— Hon. O. M. Spencer, Judge. Statement by the court. Plaintiffs commenced their action against defendant by attachment before a justice of peace in Buchanan county. Judgment was rendered against .them by the justice May 25, 1888. On the thirty-first day of May plaintiffs took an appeal from said judgment to the circuit court of Buchanan county.

— Hon. O. M. Spencer, Judge. (1) The second instruction .asked by appellant asserted correct principles of law as .applicable to the facts in this case, and should have been given. The contractor must allow for any damages sustained by reason of his failure to perform his contract. Lowe v. Binklear, 27 Mo. 308; Lamb v. Brolaski, 38 Mo. 308; Teats n. Ballentine, 56- Mo. 537. (2) The use and occupation of the building by appellant was not an acceptance thereof.

— Hon. Chas. W. Sloan, Judge. The former decision of this case is res judicata of this case. This is the identical case decided by this court in 32 Mo. App. 103. Grumley v. Webb, 48 Mo. 563 ; Bank v. Taylor, 62 Mo. 338 ; Chouteau v. Gibson, 76 Mo. 38; Forester v. Railroad, 26 Mo. App. 123; Baker v. Railroad, 34 Mo. App., loc. cit. Ill; Bevis v. Railroad, 30 Mo. App., loc. cit. 566.

— Hon. Chas. W. Sloan, Judge. (1) Under the motion to assess damages in this case no judgment for damages could properly be given against any one, because it does not allege there was an injunction bond. Under the injunction bond in this case no judgment for damages could properly be given against the plaintiff, because neither the plaintiff nor his predecessor, as assignee, was a party to the injunction bond.

— Hon. Chas. W. Sloan, Judge. (1) Under tbe law and evidence in this case defendant was clearly a tenant from year to year, even if there bad been no ^express permission to bold over, and was entitled to three months’ notice in writing to quit, and the court below sustained defendant’s objection ,to plaintiff’s attempt to prove said notice, and should have sustained defendant’s demurrer to plaintiff’s evidence. Without said notice plaintiff cannot recover.

— Hon. Chas. W. Sloan, Judge. (1) Where the facts of a case are undisputed, it is a question for the court to determine _ whether or not the facts proven constitute negligence. Kelly v. Railroad, 11 Mo. App. 1; Taney v. Railroad, 93 Mo. 433; Bell v. Railroad, 86 Mo. 599 ; Zimmerman v. Railroad, 71 Mo. 476; Lenix v. Railroad, 76 Mo. 86; Moody v. Railroad, 68 Mo. 470.

— Hon. Richard Field,, Judge. Statement by the court. This is an action, brought by the trustees of the Zoar Baptist church, at Napton, to recover damages for the alleged taking of a small corner of a lot of ground, alleged to belong to the church, by the defendant railway company, and for the inconvenience resulting to the congregation from the operation of its trains on its road. It is claimed by plaintiff that the corner of their lot ran up to the edge of the public road.

— Hon. John E. Ryland, Judge., (1) The court erred in refusing to allow the articles of association, by-laws and minutes of meetings of the “Arrow Rock Social Club,” to be read in evidence to the jury. They were competent to show the manner in which the business of the “ club” was conducted.

— Hon. J. M. Davis, Judge. Statement by the court. The following is an agreement introduced in evidence, which relates to the property insured : “ This • agreement by and between W. H. H. Frye and L. L. Grigsby witnesseth : That the copartnership heretofore existing between said parties under the style of {Frye & Grigsby ’ is dissolved.

<p>Appeal from Si. Louis Court of Criminal Correction. How. R. A. Campbell, Judge.</p>

Louis City Circuit Court. — Hon. Daniel D. Pishee, Judge. (1) Where the verdict is manifestly against the evidence and instructions, the supreme court will interfere and reverse the judgment. Ackley ¶. Staeklin, 56 Mo. 558; Lodo v. White, 50 Mo. 241; Graham & W. on New Trials, 1311. (2) There was no evidence to support the verdict of the jury, and a new trial should have been granted. (3) The instruction asked by the defendant should have been given.

<p>Contracts: independent agreements. The mutual contracts of two contracting parties are independent, and a breach by one of the parties of an agreement to be performed by him is no defense to an action instituted by him against the other party for a breach of the agreement on the part of the latter, if the agreements of the several parties, thus broken, were to have been iierformed at different times, and if the agreement violated by the party suing goes only to a part of the consideration for that violated by the party sued, and compensation for the violation of it can be made in damages.</p>

<p>1. Tender: waiver by unqualified refusal. When a person, entitled to the transfer of a patent right as a condition to the liability sued for, absolutely and unqualifiedly refuses to accept such an assignment, and denies the liability, a formal tender of such assignment becomes unnecessary, and such liability may thereupon be enforced without such tender.</p> <p>3. Contracts. When several instruments are executed at the same time in relation to the [same subject-matter and to accomplish a common purpose, and the execution thereof is known to every party to either instrument, they should be construed as one contract, though the parties to each instrument are not the same.</p> <p>3. Practice, Appellate: non-prejudicial error. Though there be error in that an instruction was given by the trial court, when there was no evidence to support it, the judgment appealed from will not be reversed, if the error was harmless.</p>

<p>Appeal from flie St. Louis City Circkiit Court. — Hon. Daniel D. Fisher, Judge.</p> <p>1 The plaintiffs, having made, executed and delivered to the constable a forthcoming bond, when the property was levied on, as the property of J. H. Bueter, are estopped from claiming said property as their own in any proceeding. McE IfatricJc v. Macauley, 15 Mo. App. 102. (2) Plaintiffs, having given a forthcoming bond and not filing any written claim, duly sworn to according to law, with the officer, when the property was levied on, as the . property of another, cannot be allowed to claim thereafter such property in any proceeding. Mfg. Co. v. Bean, 20 Mo. App. 111;. Mansur v. Hill, 22 Mo. App. 372. (3) The sale from J. H. Bueter to plaintiffs was fraudulent in law, as to existing creditors and purchasers for value under section 2505, Revised Statutes, 1879. Wright v. McCormicJc, 67 Mo. 426, and cases there cited; followed in cases Mills v. Thompson, 72 Mo. 367 ; State v. Cooper, 79 Mo. 466; Stewart v. Bergstrom, 79 Mo. 525 ; EranMin v. Gummersell, 9 Mo. App. 90; State v. Donnelly, 9 Mo. App. 527; Stern v. Henley, 68 Mo. 262 ; State to use v. Heilman, 20 Mo. 304, The facts in cases of Knoop v. Dist. Co., 26 Mo. App. 311, and Leeser v. BoeJchoff, 33 Mo. App. 233, do not apply here.</p> <p>The sale in question was valid in law, and the change .of possession sufficient under the statute. Knoop v. Distilling Co., 26 Mo. App. 311; Leeser v. BoeJcJioff\ 33 Mo. App. 223. Defendants are equally technical in' tlieir second contention, wherein they rely upon an alleged estoppel. It is not claimed here that the defendants were in the least misled by anything which was said or done by plaintiff. On the contrary, they admit that from the first they were notified of plaintiff’s ownership and that a vigorous protest against the taking of her property was entered by her whenever she came in contact with the defendants or their claim. Some very general language in the case of McElfatrick v. Macauley, 15 Mo. App. 102, is relied upon to sustain their technical claim, and at the same time it is admitted that the later cases of Mfg. Co. v. Bean, 20 Mo. App. Ill, and Mansur v. Hill, 22 Mo. App. 372, modify the language in the former decision, so as to discharge this case from the rule invoked in the McElfatrick case.</p>

<p>Corporatious. Law of the state of Illinois considered and held that, under it, a corporation has the right to acquire shares of its own capital stock. , *</p>

<p>Criminal Law: indictment. An indictment against judges of a county court for illegally exacting and collecting mileage held too indefinite, owing to the absence of' any specification of the fees claimed to have been illegally exacted and collected.</p>

C. C. Bland, Judge. It is not necessary to follow the exact language of the statute creating the .offense when words of equivalent import are used. State ». Williamson, 21 Mo. 496 ; State v. Dengolensky, 82 Mo. 44. The indictment charges that the defendant issued the prescription for intoxicating liquor to be used and drank as a beverage and is sufficient.

<p>Jurisdiction, Appellate. When the question is doubtful or fairly debatable, whether the supreme court or this court has jurisdiction of an appeal, and the appeal is taken to this court, the cause will be transferred to the supreme court. Held, accordingly, that the 1 case at bar, which was an action for the admeasurement of dower, should be thus transferred.</p>

— Hon H. C. O’Bet an, Judge. The statement filed with the justice fixes the value at one hundred and fifty dollars, and that settles the question of jurisdiction. R. S. 1879, sec. 2895; Gottschalk v. Klinger, 33 Mo. App. 410.

<p>1. Bank Cheeks: laches in presentation. The drawer of a check is not discharged by the laches of the holder in presenting it for payment, unless he is injured by such laches ; and, if injured by such laches, he is released from liability only to the extent of such injury.</p> <p>2. Practice, Trial: omission to pile instrument sued on. On the failure of the plaintiff to file an instrument of writing sued on, the defendant may move for the dismissal of the cause, but such failure is not ground for the exclusion of the writing, when offered in evidence at the trial.</p>

<p>Infant: disaffirmance of contract. An infant who purchases a chattel, and, to secure the payment of the purchase money, gives a mortgage on such chattel and other personal property of his own, may, if the vendor under the mortgage takes possession of the chattel sold and is thus placed in statu quo, disaffirm the mortgage, and thus release the additional property covered by it; and an action of replevin for such additional property, instituted by him,-but dismissed without being prosecuted to a final judgment, is a sufficient disaffirmance.</p>

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

— Hon. E. M. Hughes, Judge. (1) The court should have allowed plaintiff to prove the contents of the first will. It being destroyed, secondary evidence was admissible. Foulk v. Colburn, 48 Mo. 225. (2) The evidence does not show that Woostermeier constituted and appointed the defendant a trustee, but at best only his agent to loan the money for him. The money was not loaned during Woostermeier’s life, and his death revoked the agency. Deck v. Page, 17 Mo. 234.

<p>Appeal from the Oregon Circuit Court. — Hon. J. F. Hale, Judge.</p>

Writ of Error to the St. Charles Circuit Court. —Hon. W. W. Edwards, Judge. (1) The court erred in refusing the first instruction asked by defendant. It was a correct declaration of law in the case. Jenkins v. McCoy, 50 Mo. 349; Adams v. Leip, 71 Mo. 598; White v. Wear, 4 Mo. App. 341; Harris v. Turner, 46 Mo. 438; Kennett v. Plummer, 28 Mo. 145 \Morgner v. Biggs, 46 Mo. 66 ; McAllister v. Lawler, 32 Mo. App. 91. (2) The court erred in refusing defendant’s second instruction.

<p>Appeal from the Oregon Circuit Court. — ITon. J. P. Hale, Judge.'</p>

<p>Criminal Law: informations. An information must be based either upon the personal knowledge of the prosecuting attorney, or upon that of some private person, who lodges with the prosecuting attorney a complaint .setting forth the facts, and verifies the same by bis affidavit.</p>

<p>Appeal from the Howell Circuit Court. — Hon. James Orchard, Special Judge.</p>

<p>1. Public Roads: vacation or road. In a proceeding under the statute for the vacation of a county road by the county court, the right of freeholders to remonstrate is not confined to those whose lands are crossed or touched by the road, but such remonstrance may be filed by any twelve or more resident freeholders of the township or townships.</p> <p>3. Appeal: vacation or public road. The remonstrants in such a proceeding have the right of appeal to the circuit court from an order of the county court, vacating such road and assessing a part of the costs against them.</p>

<p>Practice, Appellate: necessity for bill of exceptions. A motion is not a part Of the record of a cause, unless it is made so by a bill of exceptions, nor can a ruling upon it be reviewed, if it be. 'not incorporated in the bill of exceptions ; and this applies to a motion by an attaching creditor for leave to defend a prior attachment proceeding against the attachment debtor.</p>

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

— Hon. Ben. E. Turner, Judge. (1) This action is not prosecuted in the name of the real party in interest, as required by statute. R. S. 1889, sec. 1990; Grocery Co. v. Crow, 36 Mo. App. 295. (2) If it be true as stated that plaintiff had no interest in the note, that it was not his, that .he paid nothing for it, that it was his mother’s, then the demurrer to the evidence asked by appellants should have been sustained.

Charles Circuit Court. — Hon. W. W. Edwards, Judge. (1) Barbara A. Tyler bad no quarantine in the bome place under section 2205, Revised Statutes, 1879. Sbe was a devisee under ber husband’s will and a tenant in common with ber ward and the other devisees, and liable for said .rents.

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

Original Proceeding hy Writ of Quo Warranto. It is said that Bragg had nothing to resign, because a temporary clerk had been appointed, who was in possession of the office. Bragg’s death, after his suspension, would undoubtedly have created a vacancy in the office. How could his death create a vacancy unless in the eye of the law he was the incumbent of the office, notwithstanding his suspension?

— Hon. E. L. Edwards, Judge. (3 ) The petition alleges as grounds for injunction, that Davidson’s claim is barred by limitation, and is fraudulent and void. If this be true, defendants in ■error, by their purchase of the. mill property, hold the title in fee simple, and injunction is not the proper remedy, if any is needed. Witthaus v. Bank, 18 Mo. App. 181; Bickhaus v. Olderheide, 22 Mo. App. 76; Brake *. Jones, 27 Mo. 428.

— Hon. Richard H. Field, Judge. (1) The facts in the case submitted being undisputed and their legal effect only in question, and there being no evidence to weigh, the appellate court may review the decision of the lower court though no declarations of law were given or refused. Waddell v. Williams, 50 Mo. 216 ; Henry v. Bell, 75 Mo. 194; Douglass r>. Orr, 58 Mo. 573.

— How. Joi-in'T. Chandler, Special Judge. (1) As the water complained of was merely such as overflowed from the creek in time of freshets, neither its obstruction nor diversion constituted a cause of action. Abbott v. Railroad, 83 Mo. 271; Jones v. Railroad, 84 Mo. 151; Moss v. Railroad, 85 Mo. 86; Jones v. Railroad, 18 Mo. App. 25. (2) Any recovery, on account of the diversion of the channel in 1868, is barred by the statute of limitations.

<p>Appellate Practice: abstract: appeal dismissed. Where the appellant fails to file a printed abstract of the record setting forth so much thereof as is necessary to a full understanding of the question presented for appellate decision, the appeal will be dismissed.</p>

— Hon. G. D. Burgess, Judge. Statement by the court. This was an action in trespass to recover damages caused by the alleged unlawful entry by defendant, during the construction of its railroad, upon a farm of one hundred and sixty acres in Chariton county, Missouri.

— Hon. G-. D. Burgess, Judge. (1) The demurrer to plaintiff ’ s evidence should have been sustained: First. Because the breaking of the car handle was not the proximate cause of his injuries. He was not hurt by the fall from the car. The petition alleges, and the proof shows, that his injuries were caused by being run over by the hand car, which, through chance, was following the one from which he fell.

— Hon. Chas. W. Sloan, Judge. (1) The petition is insufficient. It does not describe the land over which the road is to pass. R. S. 1889, secs. 8547, 8548, 8549. The petition does not state the road is a public necessity, and Jarvis-Conklin Mortgage Company is not made a party to the suit. They are mortgagees. (2) The petition shall be presented to the board of directors of each township interested: Said petition and notice to be as in other cases (in like manner).

— Hon. Richard Field, Judge. (1) Legal propositions relied upon. Where the warranty is in writing, it cannot be enlarged or varied by parol. 1 Parsons on Contracts [6 Ed.] 590. Nor can a warranty be implied. Benj. on Sales [3 Am. Ed.J sec. 666. An express warranty of the quality of the chattel excludes any implied warranty of its fitness for its intended use. International Co. v. Smith, B. R. M. Co., 17 Mo. App. 264; Johnson v. Latmer, 71 Ga. 470.

— Hon. Richard Field, Judge. (1) The court erred in refusing plaintiff’s instructions 1, 2, 3 and 5. The defendant kept the goods after examining and testing them ; used a large part of them in his business. Paid three of the four notes, the last one nearly eight months after the sale, made no claim on account of defective quality, but on the contrary, when the note sued on came due, negotiated for an extension of time thereon.

<p> Petition for Mandamus. </p>

— Hon. Chas. W. Sloan, Judge. (1) First. Held: and this, too, notwithstanding appellants’ place of business was in East St. Louis. This mortgage being duly recorded in LaFayette county was notice to every purchaser, resident or non-resident. How much more so to Metcalf, Moore & Co., the agents of Winns. Directly in point are the following cases : Bankv.

— How. James M. Sandusky, Judge. (1) The defendant George McLain was indicted for the commission of a felony, and was not convicted of a lower grade of offense. It is the conviction and sentence which establishes the grade of the offense for the purpose of fixing the liability for costs, and not the allegations contained in the indictment. State ex rel. v. Carpenter, 51 Mo. 555.

— Hon. James M. Sandusky, Judge. (1) Petitions shall be liberally construed, “not most strongly against the pleader.” Stillwell v. Hamm, 97 Mo. 585. (2) Ordinary school districts are not public corporations. 1 Morawetz Private Corp., sec. 6, p. 6; Heller v. Slremmel, 52 Mo. 309. Only an incorporated school district is a public corporation. Heller v. Stremmel, 52 Mo. 309 ; 1 Dillon Munic. Corp. [3 Ed.] sec. 22, p. 29.

— Hon. Gf. H. Burckhartt, Judge. Even though it was binding upon plaintiffs, defendant is not entitled to rely upon it as he did not carry out the request; he did not fight the cases, but plead guilty, without the knowledge or consent of plaintiffs'.

— How. E. L. Edwards, Judge. (1) The court improperly sustained the demurrer to the evidence. Where there is any evidence to sustain plaintiff’s action the case should be submitted to the jury. Twohey v. Fruin, 96 Mo. 104; Walsh v. Morse, 80 Mo. 568 ; Charles v. Patch, 87 Mo. 450 Baum v. Fryrear, 85 Mo. 151; Ward v. Davidson, 89 Mo. 445; R. S. 1879, sec. 3573,; Clark v. Ctark, 86 Mo. 115.

— Hon. Turner A. Gill, Judge. ‘ ‘ If there is doubt on the face of the instrument as to whether or not it is a continuing guaranty the words used are to be received and accepted in the strongest sense against the party using them.” .Shine v. Bank, 70 Mo. 524; Wilrath v. Thompson, 4 Hill. 200 ; Pratt v. Mathews, 24 Hun. 387 ; Cates v. McKee, 3 Kernan (N. Y.) 236; Seckle v. Marsh, 44 How. Prac.

— How. Richard Field, Judge. The county court alone has exclusive jurisdiction to open public roads, and if it refuses the circuit court has no such jurisdiction on appeal. R. S., sec. 6967 (Laws of 1887, p. 247, secs. 7, 8, 9,10); Foster v. Dunklin, 44 Mo. 217. There is no longer any question as to the right of the parties aggrieved to appeal from the judgment of the county court granting or refusing to open a highway.

<p>Appeal from the Lawrence Circuit Court. — Hon. M. Gr. McG-regor, Judge..</p>

<p>Practice, Appellate: non-prejudicial error. The judgment appealed from will not be reversed by this court for non-prejudioial error.</p>

<p>Appeal from the Webster Circuit Court. — Hon. W. I. Wallace, Judge.</p> <p>(1) The case was tried on the special contract of plaintiff, read in evidence, although it was not pleaded in petition, and the burden is on the plaintiff to show plaintiff’s negligence. Qlark ». Railroad, 64 Mo. 448. (2) It is not shown by any witness that the damaged condition of the stock was caused by the negligent handling of the train as charged in the petition. (3) The evidence shows beyond dispute that the car was grossly overloaded by plaintiff, and that the damages were caused by this crowded condition of the car, showing conclusively plaintiff ’ s contributory negligence. Thompson on Neg., p. 1178; Norton v. Stone, 86 Mo. 351; Milburn v. Railroad, 76 Mo. -109. (4) The court permitted Cantrell to give his opinion as an expert in answer to questions not based on the facts but on facts not in evidence at all. Hathaway r>. Ins. Qo., 48 Vt. 335 ; In re Ames' Will, 51 Iowa, 596; Herald v. Shinq, 45 Me. 392.</p>

<p>1. Forcible Entry and Detainer: amendment. The circuit court, on appeal from the judgment of a justice of the peace in an action of unlawful detainer, may allow an amendment of the complaint, increasing the claim for damages.</p> <p>2. -: new bond. Circumstances considered, and an order in the circuit court requiring additional bond held erroneous in requiring such bond for an excessive amount.</p>

— Hon. E. M. Hughes, Judge. The burden of proof was upon the plaintiff to establish by evidence the negligence charged, and that the alleged negligence caused the injury complained of. Randall v. Railroad, 65 Mo. 325; Fitz v. Railroad, 45 • Mo. 322; Stepp v. Railroad, 85 Mo. 231; Wallace v. Railroad, 74 Mo. 594.

<p>1. Sales: delivery as against creditors oe the vendor. A mere symbolical delivery of personal property, without any outward or visible change of possession within a reasonable time, such as the nature and situation of the property admit of, will not constitute such a change of possession as the statute requires, as against creditors of the vendor, especially when the vendor continues to sustain the same relation to the property in respect to its possession as before the sale.</p> <p>2. -: -. But the delivery is sufficient to satisfy the requirements of the statute, though the property sold remains in the building in which it was, if such building was until the time of sale the dwelling of the vendor, and if, at said time, the vendor not only delivers to the vendee a bill of parcels together with the hey to the building, but also at once removes with his family from such building, and entirely divests himself of the possession thereof, surrendering the same to the vendee, who openly takes the exclusive possession of the premises.</p>

— How. W. D. Hubbard, Judge. (1) A married woman has the right to convey her separate property without her husband joining. Blair v. Railroad, 89 Mo. 390, 391. (2) If the mortgagor does not have possession of the property mortgaged at the time of sale, the purchasers are not protected, even though the mortgage is not recorded. R. S. 1889, sec. 5176.

<p>Principal and Agent: election oe remedy. A person who enters into a contract with the agent of an undisclosed principal may, after the disclosure of the principal, proceed against either the principal or the agent under the contract, but not against both; and, if after such disclosure, he proceeds against one, though unsuccessfully, he cannot thereafter proceed against the other. Held, accordingly, that recovery of judgment against the agent in a suit instituted after the disclosure of the principal, though the plaintiff was unable to collect it, was a bar to a subsequent suit against the principal.</p>

<p>Evidence considered and held insufficient to sustain the verdict.</p>

<p>Practice, Appellate: bill or exceptions. The ruling of a trial court in dismissing a cause upon motion of the appellee cannot be reviewed on appeal, if the motion, though copied into the transcript, is not preserved by the bill of exceptions.</p>

<p>1. Appeal: prohibition. An appeal does not lie from the judgment of a lower court denying a writ of prohibition.</p> <p>2. Prohibition. A writ of prohibition should not issue when the applicant has an adequate remedy by certiorari.</p> <p>3. Local Option: validity op election. An election under the local-option act is invalid, if it be held within sixty days of a municipal election, though the latter election was had without sufficient notice.</p>

Francois Circuit Court. — Hon. James D. Pox, Judge. (1) The court erred in admitting illegal and irrelevant-testimony offered by plaintiff against defendant’s objection. Wells v. Railroad, 35 Mo. 164; Brown v. Railroad, 67 Mo. 122; Biel v. Railroad, 37 Mo. App. 454. (2) The court erred in overruling defendant’s demurrers to the evidence. Sloan v. Railroad, 58 Mo. 220 ; Railroad v. Pratt, 89 U. S. 123 ; Snyder v. Railroad, 60 Mo. 419; Farber v. Railroad, 32 Mo.

<p>Appeal from the Greene Circuit Court. — Hon. Jos. Cravens, Judge.</p>

<p>Appeal from the Greene County Criminal Court. — Hon. M. Oliver, Judge.</p>

<p>1. Practice, Trial: change of venue. A change of venue may be taken in the circuit court in a cause appealed thereto from a justice of the peace.</p> <p>2. --:--. The application for a change of venue must be verified by the affidavit of a party to the cause ; but objection to the granting of it, because it is not thus verified, must be made in the court granting it, and cannot be urged in the court to which the venue is changed.</p> <p>3. -: amendment of parties. The complete change of parties plaintiff, by the substitution of a new plaintiff for the one in whose name the action'was commenced, is a change of the cause of action, and, therefore, is not a proper amendment.</p> <p>4. --:--. In an action instituted before a justice of the peace and appealed to the circuit court, the entries on the justice’s docket determine who are the. parties plaintiff or defendant; but semble, that in an action in which the justice’s docket entries named “A., agent of B,” as the plaintiff, while the statement of the cause of action filed with the justice was based on a contract alleged to have been made by the defendant with B., such entries were open to explanation, showing that the cause of action tried before the justice was the claim of B. against the defendant, and that, on such showing, an amendment was permissible, continuing tbe cause in the name of B. alone.</p>

Charles Circuit Court. — Hon. W. W. Edwards, Judge, The balance of $1194.67, which was in John Pitman’s hands at the time the garnishment was served on him, was subject to garnishment by I). K. Pitman’s creditors. Ridge v. Olmstead, 73 Mo. 578 ; Nicholson v. Walker, 25 Mo. App. 368-377 ; Briggs v. Block, 18 Mo. 281-283; Sproule o. Agnew, 7 Mo. 62 ; Corey v. Powers, 18 Yt. 587; McGuire v. Wilkinson, 72 Mo. 202; Casebolt v. Donalson, 67 Mo. 308.

<p>Appeal from the Stoddard Circuit Court. — Hon. John Gf. Weak, Judge.</p>

<p>1. Pleading: variance. When the petition in an action for the recovery of benefits, in the nature of insurance, alleges an unconditional contract to pay such benefits, while the evidence establishes only a contract to pay on the performance of certain conditions precedent, this difference constitutes only a variance, and such variance is not material when it could not have misled the defendant.</p> <p>3. Benevolent Associations: mutual benefit insurance. Provisions in the by-laws of a benevolent association, requiring a certain form of notice of assessments for mutual benefit insurance to be given to members under a corporate or official seal, and providing that no paper issued by authority of the association should be official unless thus sealed, may be waived. And the evidence is sufficient to warrant a finding of such a waiver when it establishes an unbroken usage for years on the part of the association to give notices of assessments not thus sealed, and on the part of all of the members of the association, including the beneficiary in the case in hand, to treat such notices as sufficient.</p> <p>3. --:-. The fact that the weight of the evidence in an action at law is with the appellee will not prevent a reversal of the judgment appealed from, when there was prejudicial error in the trial of the cause.</p>

<p>1. Parties: action to charge married woman’s separate estate. If a married woman die pending an action in equity to charge her separate estate in realty, the suit can only proceed against those who succeed to her title ; and her administrator is not a necessary or proper party.</p> <p>• 2.--: -: judgment. If only her administrator is made a party defendant, the judgment will be void, and though the person acting and made a party as administrator succeed as an individual to a portion of the married woman’s title, as if he be tenant by the curtesy, such interest as an individual will not be bound by the judgment.</p> <p>S. Injunction: sale under void judgment, The sale of the land under such void judgment may be restrained by injunction at the instance of those succeeding to the title.</p>

<p>Appeal from the Jefferson Circuit Court. — Hon. John L. Thomas, Judge.</p>

<p>1. Criminal Law: bill of exceptions. Exceptions to the action of the trial court on motions in a criminal case for a bill of particulars, and to quash the indictment, are waived, unless preserved in the motion for new trial.</p> <p>2. --: bill OF particulars. The practice of demanding a bill of particulars in a criminal case has never prevailed in this state.</p> <p>3. -: druggists : sale of intoxioating liquor. Evidence that the defendant was a registered druggist, and that a merchant’s license for drugs was issued to him,. though such license did not contain the given name of the defendant, is sufficient evidence of the occupation of the defendant as druggist within the purview of section 2 of the act of March 29, 1883, concerning the sale of intoxicating liquors by druggists, and the statute of which it is amendatory.</p> <p>4. -:-:--. A sale, of whiskey at the drugstore of defendant by a person, then in charge of such store and attending to the defendant’s business, prima facie, establishes a sale by the defendant within the meaning of said section 2.</p>

<p>Appeal from the St. Louis County Circuit Court. — Hon. W. W. Edwards, Judge.</p>

<p>1. Evidence: debtor and creditor. Parol evidence is not admissible as between a debtor and an attaching creditor to show that an absolute bill of sale,- given by the former to a third person for persona] property levied upon, was in fact given as security for indebtedness to such third person.</p> <p>2. Exemptions: fraudulent conveyances, if personal property be sold to defraud creditors of the vendor and be thereafter levied upon by such creditors, the vendor is not entitled to claim the same as exempt, if it was not of a kind specifically exempted by ■ statute, and if it is not affirmatively shown that it constituted all the property owned by the debtor at the time of sale, and that it was exempt because less than three hundred dollars in value.</p>

<p>Appeal from the Pike Circuit Court. — Hon. Tiíos. H. Baoon, Judge.</p> <p>(1) Appellant’s application for examination of plaintiff by skilled and competent physician or surgeon was just and- reasonable and made at the proper time. Owen v. Railroad, 95 Mo. 171; Schroder v. Railroad, 47 la. 379 ;■ White v. Railroad, 61 Wis. 536; Sidekum v. Railroad, 93 Mo. 403; Shepherd ». Railroad, 85 Mo. 629 ; Hatfield v. Railroad, 33 Minn. 130; Railroad v. Thul, 29 Kas. 466; 1 Thomp. Trials, sec. 859, p. 653. (2) The remarks of counsel for plaintiff in his closing argument before the jury were grossly improper and prejudicial. Brown v. Railroad, 66 Mo. 588; Loyd v. Railroad, 53 Mo. 509; Mitchum v. State, 11 Ga. 615, 633; 1 Thomp. Trials, sec. 963, p. 746, and cases cited, note 1; Tucker v. Henniker, 41 N. H. 317 and 324; State v. Lee, 66 Mo. 165. (3) The court erred in instructing the jury in plaintiff’s third instruction, to take into consideration, in determining the amount of damages, such items as “ necessary expenses for medical attention, for her nursing, care and support while disabled,” when the only evidence adduced on the trial was that the defendant had paid for these items. Plaintiff failed to show that she had paid anything for these items. All the evidence went to prove that plaintiff ’é injuries were only temporary, yet the court instructed the jury to take into consideration the permanency of the alleged injuries.</p> <p>Respondent being a passenger on appellant’s train, the mere fact that the train on which she was a passenger was derailed, and that respondent was thereby injured, raises the presumption of negligence on the part of appellant, which could only be removed by evidence on the part of appellant, and, unless so removed, entitled this respondent to a verdict. Hipsley r>. Railroad, 88 Mo. 348 ; Railroad v. Jones, 9 N. E.' Rep. 476. Under the facts of this case, and after the court had already ordered an examination of the person of the plaintiff by a disinterested physician, who was not a witness in the cause, it was not error for the trial court in the midst of the trial to refuse to order the plaintiff to submit to another examination at the hands of medical experts who were present as witnesses for the appellant. Sidekum v. Railroad, 93 Mo. 403 ; Owen v. Railroad, 95 Mo. 171; Shepherd Railroad, 85 Mo. 629.</p>

<p>Appeal from the St. Louis County Circuit Court. Hon. W. W. Edwards, Judge.</p>

— Hon. Thos. H. Bacon, Judge. (1) Tlie defendant’s demurrer to the case made by the evidence for the plaintiff should have been sustained. (2) Unless Kincaid’s “act can be legally attributable to the company, it is clear the company was not the cause of the injury. The maxim, qui facit per alium facit per se, can only apply where there is an authority, either general or special.

<p>Appeal from the Bt. Charles Circuit Court. — Hon. W. W. Edwabds, Judge.</p>

<p>1. Laws: construction : time of taking effect. Under section 16 of the act of 1889, “ declaratory of the Revised Statutes,” the law of 1889, changing the time for the holding of the circuit court of Wayne county, took effect as to all its provisions, and not merely as to that providing for such change, ninety days after the adjournment of the legislature.</p> <p>2. Practice, Appellate: assignment of errors. Errors may be assigned by brief, but it is the duty of the appellant to specifically point out the errors complained of, and a general assignment of error, applicable as well to one as to another of a number of different rulings of the trial court, is insufficient. Held, accordingly, that an assignment, that “ the court erred in admitting illegal, improper and irrelevant evidence offered by the plaintiffs against the defendant’s objections,” was insufficient, the record disclosing a number of exceptions to rulings of this kind.</p> <p>3. -: --. If an assignment of errors be made by brief, it is improper to throw together a number of alleged errors of different kinds in a single paragraph, and to cite authorities en masse under it. Each alleged error should be separately assigned, and the authorities relied upon in support of it should be cited separately in connection with it.</p> <p>4. -: weighing the evidence. In an action at law an appellate court has nothing to do with the mere weight and preponderance of the evidence, and an assignment of error, that “ the verdict was manifestly against the weight and preponderance of the evidence,” is not a specification of error which is assignable in such an action in this court.</p> <p>5. —---: reviewing finding of damages. Although an award by the jury in an action for personal injuries may seem large, it cannot be interfered with by an appellate court, unless it is so large as plainly to show passion, prejudice or a disregard of the evidence by the jury. And held that interference was not warranted in this case, the verdict therein being for twenty-two hundred and fifty dollars for injuries to the right hand of the plaintiff.</p> <p>6. Practice, Trial: preservation of exceptions by motion for new trial. Exceptions taken to the refusal of the trial court to check improper remarks of counsel to the jury, upon due objections thereto, are lost, if the objection thereto be not renewed by motion for new trial.</p>

— Hon. Thos. H. Bacon, Judge. The trial court, .by its refusal to grant the peremptory writ of mandamus, held that it had jurisdiction to render the judgment set out in the case of Cook and Crane v. Koch. This was error, as the action, authorized by sections 2259 and 2260, Revised Statutes of 1879, is an independent suit, and the parties must be served with process or brought into court as in ordinary suits.