Volume 42 — Missouri Appeal Reports

Louis Gity Circuit Court. — ITon. Lenox B. Yalliant, Judge. (1) The facts in evidence in this case do not show that plaintiffs ever made such sale of the property belonging to the appellant’s intestate, as would entitle them to claim of him commissions. Parker v. Walker, 86 Tenn. 569; Rice v. Mayo, 107 Mass. 550; Yaezie v. Parker, 72 Maine, 443; Barnard v. Manott, 34 Barbour, 90; Reiger v. Bigger, 29 Mo. App. 428; Collins v. Bowler, 8 Mo.

— Hon. Rudolph I-Iirzel, Judge. (1) The plaintiff in replevin, as in ejectment, must recover on the strength of his own title, and cannot rely on infirmities in the title of the defendant. Gartside b. Nixon, 48 Mo. 138 ; Fleming v. Clark, 22 Mo. App. 218. (2) A mortgagee of personal property is not entitled to possession of the property mortgaged until default be made in the conditions of the mortgage, unless so provided by the mortgage. Chandler v. West, 37 Mo.

— Hon. W. A. Ma.rtin, Judge. (1) In the absence of any proof connecting defendant with the Wabash Western Railway Company, the trial court could not assume that they were the same corporations, or determine as to what relation, if any, existed between them. Southgate v. Railroad, 61 Mo. 89. (2) The constable was not authorized by law to serve the notice, and, therefore, his return was not even prima facie evidence of the fact of service.

— Hon. James M. Sandusky, Judge. (1) The power given to cities to extend their corporate limits must be reasonably and properly exercised. Kelly v. Meehs, 87 Mo. 896. (2) It should not impose a burden without a benefit, and the reasonableness of the exercise of such power is a fit'subject of judicial inquiry. Corrigañ v. Cage, 68 Mo. 541; St. Louis v. Weber, 44 Mo. 547; Cooley’s Const. Lim., sec. 500; Covington v. Authur, 14 S. W. Rep. 121.

— Hon. Richard Field, Judge. (1) Tlie directors expelled the pupil without “ due examination.” Appellant has the right to send his son to the school of which respondents are directors. Const. Mo. sec. 1, art. 11; King v. School Board, 71 Mo. 628; Chase v. Stephenson, 71 111. 383; Roe v. Deming, 21 Ohio St. 666; RttMson v. Post, 79 111. 567. And he cannot be deprived of this right except “ by dne process of law.” Const.

— Hon. Richard Field, Judge. (1) If the Noble notes were given by Samuel McClelland, the deceased, with the appellant as security thereon, then the estate of Samuel McClelland was primarily responsible for the same, and. the appellant could not be charged with any part of said debt. (2) The trial court charged the appellant, as administrator, with one-half of the Noble notes and interest, yet it refused to allow him commission on said amounts.

— Hon. Richard Field, Judge. (1) Under the statute of this state, the money given by Mrs. Robinson to her daughter, the plaintiff, became the separate property of plaintiff ; and the contract made between plaintiff and her husband in relation to it was good in equity as between them. Roberts v. Walker, 82 Mo. 200 ; Hammonds v. Renfrow, 84 Mo. 332; Walsh v. Chambers, 13 Mo. App. 301; Simmons v. Bent, 16 Mo. App. 288.

— Hon. Richard Field, Judge. (1) The plaintiff held the legal title to the note. The same was indorsed by the payee and delivered to him, and he had, ever since such delivery, held it, by himself, or his agent, Biltz, or his attorneys. Lachance v. Loeblein, 15 Mo. App. 460; 2 Daniel, Neg. Inst. [ 3 Ed. ] sec. 1190, and authorities cited ; Nicolay ».

— Hon. Richard Field, Judge. It was error to give plaintiff’s fourth instruction, and to refuse to give defendant’s first and third instructions.

— Hon. Chas. W. Sloan, Judge. (1) We do not think there is any evidence in this case to warrant this instruction.- Besides, it denies that the question of agency could exist in this case, contrary, as we think, to the ruling of this court heretofore made. State v. Ciarle, 18 Mo. App. 531; Iiogg v. People, 19 Cent. Law Jour. 476.

— Hon. G. D. Burgess, Judge. (1) Re taxation of costs is done when the clerk errs in fixing the amount of costs, and is in nowise a revision, alteration or modification of a judgment rendered at a previous term. Bulle v. Beimlu, 28 Mo. 583; Jaclcson t>. Railroad, 89 Mo. 104. (2) The judgment rendered in favor of defendant Walther against plaintiff, the German Lutheran Church, for costs, was a final judgment. Rogers p. Gosnell, 51 Mo. 466.

— Hon. Gf. D • ' Buegess, Judge. Ratification by a principal of an unauthorized contract of. an agent cannot be inferred except after knowledge of all the material facts, including the terms of the contract, is brought home to the principal. 2 Waterman on Corp., p. 384 ; Windsor n. Bank, 18 Mo. App. 675 ; Hyde v. Larkin, 35 Mo. App. 365 ; Middleton v. Railroad, 62 Mo. 579 ; Bank v. Gay, 63 Mo. 33 ; Railroad v. Kelley, 77 111. 426, 437; Mechem on Agency, sec. 128.

— TIon. Gr. D. Burgess, Judge. , (1) The plaintiffs were entitled to their lien for the purchase price of the property described in their petition, as against all persons and creditors excepting ‘ ‘ in the hands of an innocent purchaser, for value, without notice of the existence of such prior claim for the purchase price.” R. S. 1879, sec. 2353; Boyd v. .Furniture & Stove Co., 38 Mo. App. 210.

— Hon. O. M. Spencer, Judge. Statement of the case by the court.

— Hon. O. M. Spencer, Judge. (1) By the charter of St. Joseph (Laws, 1865, p. 436), under which this tax bill originated, it was provided that “ said certified bill shall be delivered to the contractor for the work, who shall proceed to collect the same by ordinary process of law * * * and each certified bill shall be a lien against the lot of ground described therein.” No limitation was provided, and there is none unless under the general law.

— Hon. H. M. Ramey, Judge. Statement of the case by tbe court.

— -Hon. Cyrus A. Anthony, Judge. (1) In an action of tort for deceit in a sale, against a third party, the petition must allege, and the evidence must clearly show, that the misrepresentation was made with an intention to deceive and defraud, and an omission in this respect is bad, even after verdict. Allen v, Addington, 7 Wend. 10; Bigelow on Fraud, pp. 535-6; Ins. Co. v. Matthews, 102 Mass. 221 ; Land Co. v. Heilman, 45 N. W. Rep. 760.

Original Proceeding by Mandamus. (1) All the questions as to the validity of the election or the returns being admitted in the pleadings, there remains nothing to be done except for the county clerk to call to his assistance two judges of the county court or two justices of the peace, and cast up the vote; and this being a ministerial duty, and the relators being interested in, and affected by, the result of the election, and the same being the legal duty of the defendant,…

— Hon. Gr. D. Burgess, Judge. 1) It is said in these ordinances, and so stated in the petition, that it was in consideration of the benefits that would accrue to the town and its citizens that said contracts were entered into.

— TIon. Gr. H. Burckhartt, Judge. (1) There is no service of process upon the defendants, Eddy and Cross, and the motion to dismiss filed by them should have been sustained. First. The motion itself is sufficiently definite to present the defects in the return of service. Jordan v. Railroad, 61 Mo. 52. Second.

— Host. J. H. Both well, Special Judge, Statement by the court. This was an action commenced before a justice of the peace to recover the value of a certain valise and contents, alleged to have been lost by the plaintiff while traveling in one of the defendant’s cars. The case was appealed to the circuit court, where a judgment was rendered for the plaintiff for the amount sued for less a small amount remitted after verdict.

— Hon. Bichard Eihld, . Judge. (1) Where it is sought to establish the purchase of a promissory note sent to a bank in the course of collection, it must be shown not only that the proposed* purchaser had the intention to purchase instead of to pay, but that the same intention likewise existed in the mind of the holder of the note. Campbell ®. Allen, 38 Mo. App. 27; Wolff v. Walter, 56 Mo. 292; Bunn v.. Lindsay, 95 Mo. 250; Carter v. Burr, 113 U. S. 737.

— Hon. Chas. W. Sloan, Judge. (1) A judgment rendered against a party not brought into court by service of process is coram non judice and void, even though the recital of service is contained in the judgment. Cloud r. Pierce City, 86' Mo. 358. (2) The service of process on the president of the school board of the school district of Belton, Cass county, Missouri, is not such service as to give the court jurisdiction to render a judgment against said district.

Appeal.from the Johnson Circuit Court. — Host. Chas. W. Sloan, Judge. (1) Several distinct and separate causes of action may, and frequently do, arise'out of a single transaction or contract. Held: constitutes but one wrong, one conversion; and one cause of action. Nanson v. Jacob, 93 Mo. 331, loe. cit. 340; Folsom v. C lemence, 119 Mass. 473, Thayer n. Manley, 73 N. Y. 305; Funk v. Funk, 35 Mo. App. 246; Lane v. Francis, 15 Mo.

— Hon. Chas. W. Sloan, Judge. (1) The question whether the transaction, was a mortgage or an absolute conveyance is to be determined by what took place at the inception of the instrument. All the authorities agree to this proposition. Bender v. Marltle, 87 Mo. App. 235. (2) The proof to convert an absolute deed into an equitable mortgage must be clear, decisive and beyond the realm of a doubt. Turner ®. Kerr, .44 Mo. 529.

— Hon. Oliver M. Spencer, Judge. (1) The court erred in refusing the instructions asked by interpleader. The first was that, under the pleadings and evidence, the finding should be for the interpleader. The second was to the effect that plaintiff had no lien on the goods for the unpaid purchase money, and the same were not subject to attachment in a suit against Rinehart for said purchase price.

— Hon. Gr. D. Burgess, Judge. Statement of case by the court. The plaintiff, Mrs. Botts, is the widowed daughter of Elijah Harvey, deceased.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The right to pnt in issue the facts alleged in the affidavit, on which an attachment is sued out, is given by statute alone to the defendant, except where he is not personally served and fails to enter his appearance, and is a privilege personal to the defendant. R. S, 1889, sec. 561; Landaioer v. Vietor, 69 Wis. 434, 442 ; Sannover v. Jacobson, 47 Ark. 31, 41.

<p>Assignments: right of action on assignee’s bond. A recovery can only be had on the bond of an assignee for the benefit of creditors for the non-performance of an obligation, enjoined' by the statute governing the administration of voluntary assignments ; but compliance with an order of court for the delivery to the vendee of property, sold by the assignee pursuant to the directions of the court, is such an obligation, and an action by the vendee on the assignee’s bond lies for non-compliance with such order.</p>

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

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Defendant’s instruction number l,is improper : First, because it calls for the admission of letters to aid in tbe interpretation of an independent written contract ( Bigelow v. Callamore, 5 Cush. 226); second, because the entire instruction in effect is a direction for judgment for defendant, and should not have been given, unless this court concludes that, under the testimony, such a‘direction would have been…

Louis City Cirouit Court. — How. Jacob Klein, Judge. (1) The court erred in holding that plaintiff’s evidence sustained the case made in the complaint. He sued for a conversion by a sale, and the proof showed that he assented to the sale, hence he could not recover in this action. Finlay v. Bryson, 84 Mo. 671, and cases cited ; Jones v. Loomis, 19 Mo. App. 238; Reed v. Bolt, 100 Mo. 62. (2) The court erred in excluding the record and papers in the case of Wolff v. Ward.

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. (1) This is an action of landlord and tenant, which imposes on the tenant the obligation to take good care of the premises, and if the property is destroyed, either by the careless or reckless use made of it, or wantonly destroyed by the tenant.while in the tenant’s possession, he is liable to the landlord for the injury sustained. Mason r>.

<p>Appeal from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p>

<p>1. Contract of Litigant to, Pay Contingent Compensation: effect of his death. If the plaintiff in an action dies, after having employed another to assist in the prosecution of the cause, and having agreed to give to the person employed and the mother of the latter one-fourth of the proceeds, in the case of a recovery, the death of such plaintiff will not annul or revoke, the contract thus effected.</p> <p>2. --: construction,OF contract. The contract ref erred to being one to pay one-fourth of the ultimate recovery, held that one-fourth of the net proceeds, after the deduction of the costs and expenses of the litigation, was intended.</p> <p>3. Administration: limitation of time for presentation of claim. The statute, which limits the time for the presentation of a claim against a decedent to the two years ensuing after the gx'ant of letters testamentary or of administration, does not apply to a claim which is contingent upon an occui’rence which takes place after the lapse of the two yeai’s.</p>

<p>Appeal from the- St. Louis dip Circuit Court. — Hon. Leroy B. Yalliant, Judge.</p>

<p>1. Common Carriers: shipment to point beyond carrier’s terminus : common-law liability. At common law a carrier, who received goods for transportation to a point beyond his own line, engages only to carry them safely and within a reasonable time to the end of his line, and there deliver them to the next connecting carrier for further transportation, unless the usage of business, or his language or conduct, shows that he took the goods as carrier for the whole route.</p> <p>2. -: -: EVIDENCE OF CONTRACT TO CARRY TO DESTINATION. The mere fact that, in the case of such a shipment, the carrier receiving the goods gives a through rate of freight, does not take the case out of this rule ; but the receipt by him of the freight for the whole route is evidence of an undertaking by him to carry the goods the entire distance.</p> <p>8. -: -: burden OF proof. In the absence of evidence of such a contract, the burden is on the shipper, if he seeks to charge the first carrier for an injury to the goods, to show that the injury occurred on that carrier’s line.</p> <p>4. -:-: sufficiency OF evidence. Evidence in this cause considered, and held not to establish such a liability on the part of the first carrier, since it would have left the jury to mere surmise or conjecture as to whether the injury sued for occurred on that carrier’s line.</p> <p>•5. -: foreign law : presumptions. There is no presumption that the statute law of this state exists in another state (Illinois); and, in the case of a shipment made wholly without the limits of this state, the liability of the carrier is not governed by our statute, which, moreover, applies in terms only to contracts of transportation made in this state.</p> <p>■8. Railroads: powers of agent. A mere agent of a railway company to solicit business ( and, arguendo, even a station agent) has no power to make for the company a contract for the carriage of freight beyond the line of the company, unless such power has been expressly conferred, or is to be implied from his previous conduct, on the principle that the company has allowed him to hold himself out as possessing such a power.</p>

Louis City Circuit Coiort. — Hon. James E. Withrow, Judge (1) Plaintiff was not the head of a family. Murdoch r>. JDalby, 13 Mo. App. 47; State v. Finn, 8 Mo. App. 264. (2) The testimony of the witnesses and the •circumstances of corroboration establishing the waiver by plaintiff were so complete and cogent that the judgment should not stand. Reid v. Ins. Co., 58 Mo. 421. (1) Smythe was the head of the family.

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

<p>Where a Constitutional Question is raised by the record in the trial court, the appeal is returnable to the supreme court.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. Plaintiffs cannot recover, because this is a case of the sale of a chattel not yet delivered or accepted, the title to which was in plaintiffs at the time of the fire. Swallow v. Emery, 111 Mass. 355 ; Randle v. Stone, 77 Ga. 501; Thurston v. Ins. Co., 17 Fed. Rep. 127; Graves v. Roane, 11 N. J.. Eq. 96; Story on Sales [4 Ed.] sec. 233 ; Appleby v. Meyers, 2 Com. PI.

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

<p>.Bill of Lading: effect of transfer. The transfer of a bill of lading operates only as a transfer of whatever title the transferor has at the time to the goods covered by it. And if a shipper takes a bill of lading to himself as consignee, and the carrier delivers the goods to another with the consent of the shipper, but without surrender of the bill of lading, a subsequent assignee of the bill of lading, though acquiring it without notice and for value, has no recourse against the carrier.</p>

<p>1. Practice, Trial: weighing the evidence. In an action at law nothing is presented for review, if no exception is saved to the admission or rejection of evidence, and no instruction is asked or given, and if the verdict is sustained by substantial evidence.</p> <p>•2.---: • DISMISSAL AS TO ONE OF SEVERAL PLAINTIFFS. If an action is commenced jointly by two parties, and it appears that the property sued for belongs partly to the one and partly to the other, the defendant cannot complain of the dismissal of the action as to one of the plaintiffs, and the rendition of judgment for the other in relation to the property of the latter. '</p> <p>3. Justices of the Peace: variance. Although a plaintiff, in commencing an action before a justice of the peace, flies as the basis of his action merely an account for the value of certain designated property, he may recover for a conversion of the property designated.</p>

Louis City Circuit Court.- — Hon. James E. Withrow, Judge. Tlie court erred in admitting over the appellant’s objection the testimony of the witnesses Weniger, Ball, Hayden, and Spielman,- as to the alleged acts and admissions of Schulte at lodge meetings, on the ground that they were disqualified to testify as to such facts, if they existed, by reason of Schulte’s death, and their interest in the result of the controversy.

Louis City Circuit Court. — Hon-James E. Withrow, Judge. (1) The court admitted improper evidence for plaintiff: First, the dispatch ; second, evidence as to what was said at the time of making contract; third, as to what passed between plaintiff and its broker before the alleged sale was agreed upon, or sale note made. Scarritt v. Church, 7 Mo. App. 175; Schlessinger v.. Railroad, 13 Mo. App. 471, and 87 Mo. 146; Hotel Co. v. Bailey, 3 Mo. App. 598.

Louis City Circuit Court. — Hon. Leroy B. Vallí ant, Judge. (1) The petition in Gaus Company vs. MageeCompany simply states a cause of action for breach of warranty, and prays the recovery of damages arising therefrom. It states no allegation of fraud. It claims no rescission of the contract. It seeks to recover damages, direct and consequential, arising from an alleged breach of warranty.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The statute requires that the notice of appeal -shall be in writing. It nowhere requires that this written notice shall be “signed,” but only requires that the notice shall be “served,” or by “delivering” ■a copy to the appellee or his attorney. R. S. 1889, sec. 6342; Jordan v. Bauman, 28 Mo. App. 608.

<p>Practice, Appellate: affirmance foe failure to prosecute : damages. While the Revised Statutes confer upon appellate courts a discretionary power to affirm a judgment with damages not exceeding ten per cent, of the amount of the judgment, this power will not be exercised, unless the court is satisfied, upon an inspection of the record, that an appeal is without merit, and such damages, accordingly, will not be allowed, when the affirmance is made upon the failure of the appellant to file a transcript, and . the production by the appellee of the certificate of the clerk of the trial court, pursuant to Revised Statutes, 1889, section 2252.</p>

—How. E. L. Edwards, Judge. (1) The indictment in this case does not state an offense under the act of March, 1885, page 149. We insist that this law should be construed just as section 1335, Revised Statutes of 1879, has always been construed in this state. That is, that the false representation or pretense must relate to a past event or a fact having a present existence.

— Hon. George Robertson, Special Judge. (1) The power of sale given by the McKamey will vested in the executor as such, and not in Rickenbaugh as trustee. It was a power annexed to the executorial office, and its exercise was the performance of a duty as executor.

— Ron. Richard Field, Judge. (1) This case must be determined by a construction to be given section 7310 of the Revised Statutes of 1889. If the action of the common council, in approving the plat by ordinance duly passed, was merely a ministerial duty, then the judgment of the circuit court, that far at least, was right. If, on the other hand, the council, under the statutes and laws, is given discretionary powers in the matter, the judgment is wrong and should be reversed.

— Hon. Richard Field, Judge. (1) The real estate having been purchased by the tenant during the rental year, the relationship of landlord and tenant ceased, the tenancy became thereby extinguished, and no action would lie for rent. Silvey v. Sumner, 61 Mo. 253; Higgins v. Turner, 61 Mo. 249 ; Gunn v. Sinclair, 52 Mo. 327. (2) The partition suit had been instituted long prior to the time when this tract of land was rented to appellant.

— Hon. Chas. W. Sloan, Judge. ■ The court committed error in sustaining the demurrer to the evidence of plaintiff. The note was a negotiable one, for value received, was dated June 6, 1886, due October 1, 1888, payable to the order of Smith and.

— Hon. Chas. W. Sloan, Judge. (1) Now, here is a plain, unequivocal contract, between plain till and defendants, with the breach thereof assigned, and damages set forth on account of said breach. If this does not state a good cause of action, then we are unable to know when one is stated. In Stillwell v. Hamm, 97 Mo. 585, Judge Barclay clearly holds that pleadings under the code should not be construed most strongly against the pleader.

— Hon. Oiias. W. Sloan, Judge. (1) Section 2916 of Revised Statutes, 1889, and section 986 of Revised Statutes, 1879, in express terms, authorized the clerk and sheriff to file the foregoing motion for costs. (2) A final judgment was rendered against White and Haynes, on their motion for costs. They appealed the case to this court in due form, after judgment had been rendered in favor of plaintiff and against said W. T. Houston.

<p>Appeal from the Cass Circuit Court. — Hon. Chas. W. Sloan, Judge.</p> <p>(1) The proof should correspond to the issues made by the pleadings. The evidence, therefore, in regard to the alleged misrepresentations and fraud of Beers, not having been pleaded, was inadmissible. 1 Cfreenleaf on Ev., secs. 50, 51; Sugg v. Blow, 17 Mo. 359 ; Sybert v. Jones, 19 Mo. 86; Oalbreath v. City of Moberly, 80 Mo. 484; Cummiskey v. Williams, 20 Mo. App. 606; Mize v. Glenn, 38 Mo. App. 98. (2) The evidence, as to what plaintiff said to Beers, and the contents of the letter, alleged to have been written by Beers to plaintiff, asking for an extension, and saying “it was all right with Middlesworth,” was hearsay, and improper. (3) Plaintiff’s evidence, even if admissible and true, shows him to have been guilty of negligence in relying upon the alleged remark of Beers, the principal, without further inquiry as to its truthfulness. Peers v. Davis' Adm'rs, 29 Mo. 184; Jones v. Railroad, 79 Mo. 96 ; Bank v. Hunt, 7 Mo. App. 42 ; Franklin v. Hollé, 7 Mo. App. 241; FretioeTl v. Laffoon, 77 Mo. 26.' (4) Under the evidence, the defendant was discharged' from liability upon the note sued on. Noll v. Oberhellman, 20 Mo. App. 336 ; Stillwell v. Aaron, 69 Mo. 539; Wild v. Howe, 74 Mo. 551; Ins. Go. v. Hauck, 71 Mo. 465; Ins. Co. v. Hauck, 83 Mo. 21; Bank v. Barnes, 70 Iowa, 412.</p> <p>(1) In order to release the surety on a note, the' principal must make a valid and binding contract with the holder to extend the time of payment, which presupposes a sufficient consideration, and must be without the consent of the surety. Tiedeman on Commercial Paper, sec. 424; 2 Daniel on Neg. Inst., sec. 1317a, 1318 ; Moore v. Bank, 22 Mo. App. 684; Ford «. Beard, 31 Mo. 459; Bank v. Dow, 4 N. E. Rep. (Me.) 496; Berry v. Pullen, 69 Me. 101; 31 Am. Rep. 248. (2) The-creditor must do some act by which he deprives himself of the right of proceeding at law in the collection of the obligation. Ford v. Beard, 31 Mo. 459; Rucker v. Robinson, 38 Mo. 154; Hosea v. Rowley, 57 Mo. 357; Heacllee v. Jones, 43 Mo. 237; Russell v. Brown, 21 Mo. App. 55. (3) Where the principal obtains from the holder an extension of time upon the false representation that the surety had consented to the extension, the surety will not be discharged by reason of the agreement. Bangs v. Strong, 10 Paige, Ch. 11; Brandt on Suretyship, secs. 296, 299; Milmine v. Bass, 19 Fed. Rep. 632-5; Albright v. Griffin, 78 Ind. 182; Hubbard v. Hart, 71 Iowa, 668; Kirby v. Landis, 54 Iowa, 150;. Strtoss v. Bank, 11 S. W. Rep. (Ky.) 769. (4) The test is, whether the principal could, on account of such contract, have successfully defended a suit on the note. Hartman «. Redman, 21 Mo. App. 126; Russell v. Brown, 21 Mo. App. 55; Noll v. Oberhellman, 20 Mo. App. 341; Berry v. Pullen, 69 Me. 101. (5) The-evidence in regard to the misrepresentations and fraud of Beers, in procuring the alleged contract from plaintiff' for the extension of time of payment of the note, was admissible under the pleadings. Oorby v. Weddle, 57' Mo. 452; Greenway v. James, 34 Mo. 328; Calender v. Waddingham, 2 Mo. App. 551; Stewart r>. Goodrich, 9 Mo. App. 125; Young v. Glasscock, 79 Mo. 574 ; Eidson v. Hedger, 38 Mo. App. 53; Higgins v. Cartwright, 25 Mo. App. 615-6 ; Tyler v. Larimore, 19 Mo. App. 458; ■Goff i>. Roberts, 72 Mo. 570; Willcerson v. Farnliam, 82 Mo. 678 : Clements v. Knox, 31 Mo. App. 198.</p>

— -IIon. Ciias. W. Sloan, Judge. (1) A cause Is not finally submitted to the court or jury until the court has passed upon the declarations or instructions of the law. Lawrence v. Shreoe, 26 Mo. 492; Hensley v. Pecíc, 13 Mo. 587; 1 R. S. 1889, sec. 2084. Plaintiffs, on the refusal of their declarations of law 1, 5, 6 and 7, had the right to take a voluntary nonsuit, and it was error for the court to refuse this request.

— Hon. Chas. 'W. Sloan, Judge. (1) This court is respectfully requested to reconsider and overrule its former decision in Epright v. Kaufman, 35 Mo. App. 455, for the reason that it is believed to be unsound in principle, and in direct conflict with the case -of Epright v. Kaufman, 90 Mo. 25. (2) The position taken by this court in the case of Epright v. Kaufman, 35 Mo.

— Hon. CnAS. W. Sloan, Judge. - (1) No contract exists if the premium has not been paid when payment thereof is a condition precedent. Phillips on Ins. [ 5 Ed.] secs. 23, 24; Bidwell v. Ins. Co., 40 Mo. 42.; Train v. Ins. Co., 62 N. Y. 298; Herman v. Ins. Co.., 17 Minn. 153; Magers v. Ins. Co., 27 Penn. St. .268 ; Rogers v. Ins. Co., 41.Conn. 97.

— Hon. O. H. S. Goodman, Judge. (1) The court erred in excluding the sheriff ’ s deed from the plaintiff to defendant Owen, for the simple reason that the deed gave the defendant, James 'A. Owen, the right to make a peaceable entry upon the premises, and no other but a peaceable entry is shown by the evidence in the record.

— Hon. Henry M. Ramey, Judge. (1) The city of St. Joseph, having full power and control over its streets, was bound to keep them in a reasonably safe condition for persons traveling thereon, nor can this duty be evaded, suspended or cast upon others, by any act of its own. Kiley v. City of Kansas, 87 Mo. 103; Bussell v. Town of Columbia, 74 Mo. 480; Welsh v. City of St. Louis, 73 Mo. 71; Norton v. City ■of St. Louis, 97 Mo. 537.

— Hon. W. I. Wallace, Judge. The defendant was only required to keep its •sidewalks in a reasonably safe condition for the travel. of persons in the usual mode ; and, to fix any liability upon defendant for any injury caused to plaintiff by reason of a defective sidewalk, it must be shown that the defendant had either actual notice of such defect, or that such defect had existed for such a length of time, and was of such an obvious and notorious character, that the defendant…

— Hon. J. H. Slover, Judge. .. (1) As defendants, at the time and place of sale of the cattle mentioned in .the record, had possession thereof and absolute power and dominion over the same, and did in fact sell and deliver for full and fair value, they must be heid to have warranted the title.

— Hon. Ciiás. W. Sloan, Judge. (1) The question to be determined by this court is as to whether there was any issue of fact involved in the trial below. Appellant claims that there was, and that the court below erred in instructing the jury to find for plaintiff. (2) The court erred when the jury brought in their verdict, by ordering the verdict to be changed from a verdict in favor of defendant to a verdict in favor of plaintiff.

— Hon. I). A. DeArmond, Judge. The court erred in overruling defendants’ motions to dismiss for want of jurisdiction, for the reason that justices of the peace have exclusive original jurisdiction in cases of unlawful detainer until final judgment, unless removed to the upper court by certiorari before trial and verdict. R. S. 1879, ch. 33, art. 1, secs. 2419, 2423; ch. 33, art. 2, secs. 2349, 2460; 2 Stark’s Digest, p. 207, sec. 71 ; 3 Mo. App. 549.

— Hon. James Hibson, Judge. (1) The failure to continue the cause in the justice’s court from February 27, 1888, to April 4, 1888, as shown by the transcript, was a discontinuance of it, and divested the justice of jurisdiction. His power to proceed further in such suit ceased. Brahmstead v. Ward, 44 Wis. 591 ; Webster v. Laws, 86 N. C. 178 ; Allen v. Board of Health, 46 N. J. L. 99; Flint t>. Qault, 15 Hun. (N. Y.) 213; Young v. Kellman, 10 Mo.

— How. Gr. D. Burgess, Judge. (1) This was an action of conversion, if anything. Plaintiff recovered judgment for the value of three-steers. The petition fails to state a cause of action. It states mere evidence which the pleader regards as proving a conversion. It does not charge a conversion of the steers by defendants. This is the gist of the action, and the petition is therefore- fatally defective.

— Hon. Chas. W. Sloan, Judge. (1) The affidavit was insufficient. The affiant did not state that he made the affidavit for the plaintiff. R. S. 1889, sec. 526; Oilkeson v. Knight, 71 Mo. 404 ; Claflin v. Hoover, 20 Mo. App. 314. (2) It being conceded that a portion of the goods, for the purchase price of which suit was brought, was bought before the alleged false statement was made, the attachment ought to have been abated.

— ITon. Chas. W. Sloan, Judge. '{1) A justice of the peace has no power to grant a new trial except in cases of nonsuit, or of judgment by default. R. S. 1879, sec. 2949; Downing v. Garner, 1 Mo. 751 ; Cason v. Tate, 8 Mo. 45; City of St. Joe ¶. Hamilton, 48 Mo. 282; Weelcs v. Mter, 81 Mo. 375. The judgment rendered by the justice in the plaintiff’s favor on the second day of March, 1889, and against both defendants was neither a nonsuit nor a judgment by default.

— Hon. Richard Field, Judge. (1) The court erred in refusing to allow Mrs. King (the appellant) to testify as to indignities offered her, and particularly as to epithets applied to her by defendant in conversations between themselves. Miller v. Miller, 14 Mo. App. 419 ; Barrier v. Barrier, 58 Mo. 222; Henry v. Sneed, 99 Mo. 415.

— Hon. M. G, McGregor, Judge. The court erred in discharging the garnishee. Under our statute, section 5218, Revised Statutes, 1889, all persons (and corporations, section 6568) are subject to garnishment, except such as are specially exempted by section 5220, Revised Statutes, 1889. The trial court ruled that a school district was a municipal corporation, and hence exempt.

<p>Appeal from the Clinton Circuit Court. — Hon. Jas. M. Sandusky, Judge.</p>

— Hon. John E. Ryianb, Judge. (1) The court erred in overruling motion in arrest. Under the law as it then was, the information was wholly insufficient, not being based on the affidavit of anyone having personal knowledge of the crime, nor upon the personal knowledge of the prosecuting attorney. State v. Humble, 34 Mo. App. 343; State r¡. Wilkson, 36 Mo. App. 373. (2) The information in this case, and that in State v. Humble, supra, are alike, and subject to same vice.

<p>X. Unincorporated Society: action contrary to the constitution OF THE SOCIETY : NOTIFICATION OF MEETING. The rights Of members of an unincorporated society, as fixed by the constitution or by-laws of the society, rest in contract. A majority of the members of the society cannot, by their irregular action, contrary to the rules to which all have agreed to abide, divert the funds of the association from the purposes for which they are held under the constitution, and distribute them among such of the members .as may be -willing to receive their proportionate shares thereof; and, when the constitution prescribes that meetings of the society shall be called in a certain manner, a meeting called otherwise, and neither attended, nor consented to, by all of the members, is illegal.</p> <p>2. - : INVALID MEETING: ESTOPPEL OF ATTENDING MEMBERS. Members of such a society, who have attended a meeting irregularly called, and concurred in illegal action taken at the same, will not be estopped from disputing the validity of the proceedings by reason of such attendance and concurrence by them.</p> <p>3. Practice, Trial: direction for finding for the plaintiff. It is error to direct a jury to find for the plaintiff, so long as the defendant is entitled to go to the jury on any theory arising from the evidence ; and held that this rule was applicable to the case at bar, since the burden of proof was on the plaintiff, and his principal allegations were controverted.</p> <p>4. Law and Fact: abandonment of contract. Whether a contract has been abandoned is a question of law, and this rule applies to a claim that an unincorporated society or association has been abandoned.</p> <p>5. Tlninecrporated Society: abandonment. When the constitution of an unincorporated society provides for monthly meetings and payment of monthly dues, and further provides that whoever sb.all remain in arrears for six months in the payment of dues shall be stricken from the list without further resolution of the society, the failure of the society to hold, for the period of eleven months, ' the meetings provided for, and to carry out the purposes of the society for that period, will amount in law to an abandonment of the organization, but the mere non-payment of dues by members for a period of six months will not ipso facto deprive them of their membership, that not being the effect of the constitutional'provision.</p> <p>6. Jurisdiction of Courts of Equity. Held that a court of equity is better qualified than one at law to deal with controversies arising from dissensions between the members of a religious society or kindred organization, and a resulting confusion of the affairs of the society.</p>

<p>1. Mutual Benefit Societies: contract on membership. An application for membership in a benefit society, in which the applicant makes agreements regarding his course of conduct while a member, is to be- construed as a part of the certificate of membership, when the certificate recites that the applicant is constituted a member “in consideration of the representations made in the application;” and of the payment of certain dues and assessments ; and held further that such agreements in the application were within the purview of the word “ representations,” as thus used in the certificate.</p> <p>2. -: POWER ON COLLECTOR OP DUES TO WAIVE FORFEITURES. In the absence of an authority on the part of a mere collector of dues for a benefit society to waive conditions of membership, the collection of dues by him from a member guilty of a breach of those conditions, though he knew of this breach at the time, will not constitute a waiver of the right of the society to expel such member for the offense.</p> <p>S. - : EXPULSIÓN OF MEMBER WITHOUT NOTICE : MANDAMUS. An order made by a benefit society for the expulsion of a member will be invalid, if made without giving him notice and a full opportunity to be heard in defense of the charge against him; still a proceeding of mandamus, instituted by him against the society for the purpose of his reinstatement, will not lie, if he himself admits his guilt of the charge, and the offense admitted warrants his expulsion.</p>

<p>Practice, Trial: amendment. If a suit in equity is instituted in order to charge the separate estate of a married woman with indebtedness contracted by her, and, pending the suit, she conveys the property sought to be charged by a mortgage under which it is sold, realizing more than the mortgage debt, the petition may be amended and the mortgagee made a party defendant, so as to charge the surplus in his hands with the debt sued upon. Distinctions, drawn for the purpose of determining whether an amendment amounts to the statement of a new cause of action, commented upon.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The plaintiffs were entitled to an affirmance of the judgment. R. S. 1889, secs. 6342, 6344; Cooksey v. Railroad, 17 Mo. App. 138, and cases cited. The manner of the service of the notice prescribed by the statute is exclusive. Fuller v. McCluer, 25 Mo. App. 418. (2) The statement filed with the justice was sufficient. Allen v. McMonagle, 77 Mo. 478.

<p>Appeal from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p>

<p>1. Practice, Appellate: jurisdiction. It is the uniform practice of this court to transfer to the supreme oourt all causes wherein any reasonable doubt exists touching the jurisdiction of the appeal. Held, accordingly, that the cause at bar which was a proceeding to remove a trustee, or require him to give bond, should be thus transferred, since the trusteeship was for life and involved the partial control of two hundred thousand dollars, though the record did not show what its pecuniary value was.</p> <p>2. Jurisdiction, Appellate. Held, arguendo, that, where the right of appeal depends on the value of the matter in dispute, such value must be estimated in money ; but it does not follow that it is essential to an appellate jurisdiction which covers only cases wherein the amount in dispute is in excess of a'certain sum (as in ’ the case of the jurisdiction of the supreme court of this state) that the recovery of money or property in excess of that limit should be the direct object of the suit.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.' (1) There is no evidence that the particular draft on which the judgment in suit was based arose out of commission dealings. (2) The plaintiffs’ demand is founded on a judgment. The previous obligation became merged in the judgment upon its rendition, and the judgment is within the operation of the discharge in bankruptcy, even if the earlier debt was not. Wolcott ». Hodge, 81 Mass. 547.

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

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) Plaintiff must stand on causé of action stated in petition. Sumner v. Rogers, ’90 Mo. 324 ; Reed v. Bott, 100 Mo. 63 ; O’Brien v. Steel Co., 100 Mo. 182. It cannot sue defendants as makers of a promissory note, and recover against them as indorsers. Perry v. Barrett, 18 Mo. 140-145 ; Noll v. Oberhellmann, 20 Mo. App. 336.

<p>1. Instructions: supplementing one by another. If an instruction given for the plaintiff authorizes a finding for him upon an hypothesis, which omits a number of elements which are essential to the plaintiff’s right’ of recovery, the instruction is erroneous ; and the error will not be obviated by an instruction properly given for the defendant, which requires proof of all the facts on which the plaintiff’s right of action is predicated. These instructions are inconsistent, and, therefore, one cannot supplement the other.</p> <p>3. Master and Servant: defective appliances. A servant worked on a scaffolding at a great height above a river, his support being a plank, on which he sat. This plank was knotty, bnt its condition in this respect was open to ordinary observation, and it had been exposed .to the view of the servant for several days, while at work. There was evidence that it broke where it was knotty, and that the servant was thereby precipitated into the river below and suffered serious injury. There was also evidence that the knotty condition of the plank rendered it weaker than it would otherwise have been, but no other evidence that the plank was defective. Held, by a majority of the court ( Rombatjeb, J., dissenting), that the servant was entitled to a submission of the case to the jury, on the ground that it was the duty of the master to subject the plank to a sufficient test before placing the servant in a position of danger thereon.</p> <p>3. -: -. Held, arguendo, that a master is guilty of negligence in furnishing to the servant appliances with latent defects, which could have been discovered through the exercise of ordinary care, bnt he is not liable for injuries resulting from appliances having hidden defects, not discoverable through the exercise of great care. But for errors in the principle of construction of an appliance ( a scaffolding in this case), or a want of knowledge of the strength of material, as determined by physical laws, the master may well be held responsible, on the ground that such principles and laws may be ascertained by care, and that it is the duty of the master to ascertain them.</p>

Louis City Circuit Court.— IIon. Jacob Klein, Judge. (1) A purchaser filing a tax deed for record, in the office of recorder of deeds, can be sued in ejectment by the owner of the property, though not in the actual possession, the premises being vacant. Hence instruction number 2, asked for by the defendant, should have been given. 2 R. S. 1889, sec. 7698; Callahan r>. Lams, 90 Mo. 78.

Louis City Circuit Court. — How. James E. Withrow, Judge. • The stipulation in the message being, “that no claim for damages shall be valid unless presented' in writing within thirty days after sending the message,” such notice is not. necessary where the message is not sent. Tel. Co. v. Yopst, 118 Ind. 249 ; 20 N. E. Rep. 222; Tel. Co. v. Way, 83 Ala. 556 ; 4 S. Rep. 844.

<p>Appeal from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p>

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

<p>Appeal from the St. Louis Qity Circuit Court. — How., James E. Withrow, Judge.</p>

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

Louis City Circuit Court. — Hon, Jacob Klein, Judge. (1) Subcontractors are entitled in equity to payment out of a fund created in part by their own labor and materials in- preference to those bound for the performance of the contract, and general creditors of the principal contractors. Newhall v. Kastens, 70 111, 156; Luthey n. Woods, 6 Mo. App. 71; City v. Keane, 27 Mo. App. 641. Section P of the contract should be so construed as to give it some meaning and effect.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. When the declarations of parties to a suit are given in evidence against them, the -whole conversation that took place at the time the declarations were made is-admissible in their own behalf. Hoxoard v. Nexjoson, 5 Mo. 523 ; Milling v. Toll, 9 Johns. 140; Reevs v. Hardy, 7 Mo. 348; Burghart v. Brown, 51 Mo. 600; State v. Linney, 52 Mo. 40; State ■?>. Branstetter, 65 Mo. 149; State v. Carlisle, 57 Mo. 102; 1 Greenl.

<p>1. Landlord and Tenant: obligations of landlord. If a landlord lets several rooms of a building, and remains in the exclusive possession of other parts which are essential to the enjoyment of the rooms let, he owes to the tenant, in the absence of an express contract, the same duties with respect to such other parts as to a stranger. His liability is not that of an insurer, but arises .only from negligence or deceit, and, therefore, does not extend to injury resulting from the acts of a trespasser, which he has, with reasonable diligence, endeavored to prevent. Held, accordingly, that the landlord is not liable for damage caused by the caving of a wall of the building, resulting from an excavation, made by a stranger on adjoining premises, in violation of an injunction procured by the landlord.</p> <p>2. -: construction of lease. In the case of the letting of rooms in a building, a covenant by the lessee to make all repairs, deemed necessary by him, has referenee only to repairs of the premises let, and not to other parts of the building.</p> <p>3. Practice, Trial: insufficiency of conjectural evidence. An hypothesis, which is not supported by any substantial evidence, direct or inferential, but rests on mere conjecture, should not be submitted to the jury.</p>

<p>i. Mutual-Benefit Societies: disposition oe insurance. The charter of a foreign mutual-benefit society, and its certificate of membership, provided that, upon the death of a member, ,a certain fund should be paid to his family, or as he might direct. Held that a member had absolute power to make any disposition of such fund not repugnant to the declared purposes of the society, and could, therefore, direct that the fund should be paid to trustees to defray the expense of his funeral and the improvement of his burial place.</p> <p>2. -: -. The choice of beneficiaries of benefits in the . nature of insurance, when the corporation is organized in this state, is confined to some member of the family of the assured, or to some person or persons dependent on him, and, therefore, a contract by the society to pay these benefits to trustees for the aforesaid purposes is ultra vires.</p> <p>3. - : CHANGE IN CONTRACT OE INSURANCE WITHOUT THE CONSENT OE members. A foreign mutual-benefit society by a certificate of membership issued by it agreed to pay benefits in the nature of insurance on the life of a member in a designated manner, which was in accordance with its foreign charter, but contrary to the disposition permissible under the laws of this state in the case of a domestic mutual-benefit society. Held that the provision in the certificate of membership was a contract which the society could not change without the consent of the member, and that it was, therefore, not affected by the reincorporation of the society under the laws of this state, subsequent to the issue of it, and the adoption of articles of association which provided for the payment of such benefits in conformity with our laws.</p> <p>4. Foreign Mutual-Benefit Societies': comity oe states. The contract of a mutual benevolent society, made in conformity with the charter of the society, and providing for the payment of benefits in the nature of insurance to trustees to defray expenses of interment, will be enforced, though made in this state, and though such application of the benefits would have been contrary to our statutes if made by a domestic corporation.</p> <p>5. Mutual-Benefit Society: right oe action by trustees oe a subordinate lodge. The trustees of a subordinate lodge of a mutual-benefit society have the right to act as trustees'for a member and to institute suit against the society for the enforcement of such trust.</p>

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

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Plaintiffs ’ petition does not state facts sufficient to constitute a cause of action against defendant. There is no allegation that the deed of trust constituted a lien, or that defendant refused to consummate. Hayden v. Orillo, 26 Mo. App. 293 ; Price v. Mayo, 107 Mass. 550; Barnard v. Monnot, 34 Barb. 90; Hayden ,®. Orillo, 35 Mo. App. 654.

Louis City Circuit Court.- — Hon. Daniel Dillon, Judge. (1) There is no evidence that the note and deed of trust were ever paid and delivered up. to Lucy B. Metcalfe, the actual owner of the property, and maker of the deed and note, or to anyone for her ; but,- even so, it was perfectly competent for the mortgagors, after payment of the note, to reissue and redeliver the note and mortgage as a binding security, and this act of reissuance is binding against everyone,…

<p>1. Damages, Nominal: breach of contract. When the evidence shows a breach, by the defendant, of the contract sued upon, the plaintiff is entitled to nominal damages, at least, therefor.</p> <p>:2. Instructions: assumption oe controverted facts. An instruction, which assumes the existence of facts put in issue by the pleadings, is erroneous. The court cannot assume the existence of facts established by oral evidence, but admitted neither by the pleadings nor at the trial.</p>

<p>Error to the Pike Circuit Court. — Hon. E. M. Hughes, Judge.</p>

— Hon. E. M. Hughes, J udge. The cou’rt erred in permitting defendant to read in ■evidence the original» execution, issued on the Haden judgment, and the various returns of the sheriff thereon. The only purpose it could subserve was a tendency to show that the issuance of the alias execution thereafter, .and the sale thereunder, was irregular and invalid.