Volume 43 — Missouri Appeal Reports

Appeoil from, the Si. Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The court erred in refusing defendant ’s instruction for a nonsuit, and erred in overruling its motion for new trial, as there was no evidence to support the verdict. Every part, and the whole of the testimony, showed no negligence on the part of the driver of the car.

Louis City Circuit Court. — Hon.. Jacob Klein, Judge. (l) The court erred in excluding pleadings in the-case of Spengler v. Spengler; and in permitting Wilkinson to testify as to his motive. The act shows the-motive. (2) Judgment should have been entered for plaintiff for the amount of the execution. R. S. 1889, sec. 5221.

—Hon. Ben E. Turnee, Judge. Appellants as securities on curator’s bond, given in tlie county court by James S. Kerans, could not be liable for the proceeds of the sale of land made by order of the circuit court, as a special bond was required and given. Commonwealth v. Pray, 17 Atl.

<p>Appeal from the Scotland Circuit Court. — Hon. Ben E. Turner, Judge.</p> <p>(1) If appellant honestly beiieved that the debt secured by the trust deed was not due, then respondent could not recover penalty for failing to satisfy same. Wilber v. Pierce, 22 N. W. Rep. 316 ; Canfield v. Conk-ling, 2 N. W. Rep. 191; Huxford v. Kslowj 18 N. W7 Rep. ’ 630; Crumly v. Bardon, 36 N. W. Rep. 19 ; 2 Jones on Mortgages [ 2 Ed.] sec. 991; Burrows n. Bangs, 34 Mich. 304. (2) If appellant honestly believed that a tender of the amount due and secured by the trust deed had not been made, or a lawful tender had not been made,o respondent cannot recover the penalty sued for. Authorities above cited. (3) The respondent failing to file reply to the appellant’s answer, the same is admitted to be true. R. S. 1889, secs. 2052, 2053.</p> <p>< The judgment rendered in the other case of Campbell v. Seeley, in which satisfaction of the deed of trust was decreed, was a final adjudication as to tender, and cannot be questioned in this cause. Guppies v. G-alligan,' 6 Mo. App. 62. ( 2) The motives of the defendant cannot affect the right to recover. This action is not brought under a penal statute. Campbell r>. Seeley, 38 Mo. App. 298 ; Beckman v. Hache, 56 Mo. 546. (3) The statute is not penal. The damages are fixed and liquidated. Wiener v. Peacock, 31 Mo. App. 238 ; Edwards «. Brown, 67 Mo. 377; Coom v. Moore, 31 Mo. 574 ; Barnard v. Harrison, 30 Mich. 8 ; Draper v. Fitzgerald, 30 Mo. App. 518. (4) The failure to file reply cannot be taken advantage of now. The point was not raised in the trial court, and the attention of the court was not called to it in the motion for new trial. The case was tried as though the reply was filed. Meader v. Malcolm, 78 Mo. 550.</p>

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

<p>Error to the St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.</p> <p> Transferred to the Supreme Court. </p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Daniel D. Eisiihr, Judge.</p> <p>(1) The trial court should have sustained the-motion to make the petition more definite and certain. The general allegations of negligence Were good only on demurrer or motion in arrest of judgment. But the-matters called for by this motion were essential to give a right of action, and should have been specifically stated on the request therefor by appellants. R. S. 1879, seo. 2057; Bliss on Code PI., sec. 425; Edwards n. Railroad.-, 74 Mo. 117. (2) The trial court erred in excluding the evidence to show that by comparison the gutter projection was as safe as the ordinary swinging platform commonly used by carpenters, painters and tinners. The question being one of negligence, this testimony was competent to show appellants did only what other persons are constantly doing under like circumstances. (3) The trial court erred in refusing the instruction that respondent was not entitled to-recover. First. Because there was no evidence to show that Fugler fell from the gutter projection; or if he did fall that the same was traceable to any act or omission of appellants. Moore v. Railroad, 28 Mo. App. 622; Shertle v. Railroad, 97 Pa. St. 450. Second. Because, under all the evidence and physical facts, the perils, whatever they were, of working on the gutter projection were so obvious that Fugler, being a skilled workman, was bound to take notice of them and assumed their risks as an incident to his trade. Nolan v. SMckle, 69 Mo. 336; McDermott v. Railroad, 87 Mo. 285 ; Steffen v. Mayer, 96 Mo. 420; Devanney v. P'eper, 12 Mo. App. 588; Walters v. Wire Co., 14 Mo. App. 592; Sparks v. Railroad, 31 Mo. App. Ill; Woerhide v. Foundry Co., 32 Mo. App. 367. Third. Because the alleged refusal of appellants to allow the erection of scaffolding had no reference to the fourth shaft. That applied to the first shaft, and Fugler waived all objection by going on for weeks and doing the work in the first three shafts without the scaffolding. He worked by the hour; had weeks for reflecting whether he would go on with this work; and as an experienced workman knew as well, if not better than appellants, its dangers. Under these circumstances it is idle to say that Fugler continued at this work because of an implied assurance on the part of appellants that he would be safe in doing so. Nolan v. SMckle, 69 Mo. 336 ; McDermott v. Railroad, 87 Mo. 295. Fourth. Because under all the evidence the projection was a reasonably safe place. Devlin v. Railroad, 87 Mo. 545. (4) The first instruction given for respondent was erroneous. It made appellants liable if the projection was in any degree “an unsafe place” to do this work on. It made appellants insurers. The law is quite the other way; the master is not an insurer, and is bound only to use ordinary care to provide his servant with a reasonably safe appliance and place to work in. Devlin v. Railroad, 87 Mo. 552. And this instruction was not cured by the instruction, numbered 5, given for appellants. The latter declared the law correctly. Which of the two instructions did the jury adopt %</p> <p>(1) The motion to make the petition more definite and certain was properly overruled. The matter called for in’ the first specification is necessarily included in the allegation, that Eugler was assisting as a carpenter, and, if inexperience had been relied on, it must have been alleged; the remaining specifications will be disposed of by the other points herein. However, the petition is good. IJope v. Railroad, 99 Mo. 400; Sullivan v. Railroad, 97 Mo. 113; Johnson v. Railroad, 96 Mo. 340. (2) The evidence by comparison was properly rejected, being mere matter of opinion. Besides appellants got all of the benefit to be derived from it by the testimony of the painter that was admitted. Hurt v. Railroad, 94 Mo. 255. (3) The evidence was ample (and moreover direct)’ to go to the jury to show that Fugier fell from the gutter projection, and that the fall was caused by the negligence- of the appellants. Boeder v. Railroad, 100 Mo. 673; Sohlereth v. Railroad, 96 Mo. 514; Schultz v. Moon, 33 Mo. App( 340, S41; Buesohing v. Gas Go., 73 Mo. 230; Kelly v. Railroad, 70 Mo. 607. Moore v. Railroad, 28 Mo. App. 622, cited by appellants is in plain contradiction of the foregoing. (4) It is presumed that Fugler did know there was danger and took notice of it, but it was the duty of appellants to provide him a safe place to work (Bishop on Non-Contract Law, sec. 683), and a failure to do this, .and keep it so, was continuing negligence. Parsons v. Railroad, 94 Mo. 286, on p. 292. (5) It was not neees•sary for Fugler either to have protested against working ¡on the guttering, or to have obtained an assurance of its safety by appellants (but both were done by acts of ■the respective parties, as plainly as words could have made them ), in order that he should be entitled to a ■recovery in this case. Fugler’s failure to protest or to receive assurances of safety, or his knowledge of the •danger, or his right to quit the service, would not defeat ■a recovery, if the guttering was not so dangerous as to threaten immediate injury or to be plainly perilous to life or limb, or if he might have reasonably supposed he could safely work on the guttering by the use of care and caution. Outside of the implied protest and assurance, the evidence fully sustains this position on his part, and the questions were for the jury, and they passed upon them under correct instructions so far as given on respondent’s motion, or by the court of its own motion. Boeder v. Railroad, 100 Mo. 673, 681 ; Stephens v. Railroad, 96 Mo. 207, 212, 214; Huhn v. Railroad, 92 Mo. 440. (6 ) The first instruction given for respondent is technically correct and perfect as against appellants, the word, unsafe, being the antithesis of safe and of reasonably safe. It threw on the respondent the burden of proving no contributory negligence on the part of Fugler, when there was not a scintilla of evidence to support it, and, with this exception, is precisely such an instruction, in an almost exactly similar case, including details of construction, plats, etc., as was approved in the case of Bowen v. Railroad,, 95 Mo. 268, on p. 276 ; ■Johnson Railroad, 96 Mo. 340, p. 348, and Dowell v. Guthrie, 99 Mo. 653, on p. 665. But, if this instruction had been erroneous, it was cured, by instruction, numbered 5. Owens v. Railroad, 95 Mo. 169 ; Dougherty v. Railroad, 97 Mo. 647; Mfg. Co. v'. Guggemos, 98 Mo. 391.</p>

— Hon. E. M. Hughes, Judge. (, 1) The plaintiff is not the real party in interest, •and, therefore, cannot maintain this action. R. S. 1879, secs. 3462, 3463 ; R. ¡á. 1889, secs. 1989, 1990 ; Perry on Trusts, sec. 328 ; Jones on Chat.

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

Louis City Circuit Court. — IIon. Daniel D. Fisher, Judge. Any agreement on the part of defendant to issue to plaintiff an original certificate would be ultra ñires. First. Because it is the common-law duty of a corporation to refuse to transfer stock until the original certificate is surrendered. Morawetz on Corp., sec. 186, p. 184; Smith n. Mining Co., 1 Nev. 428. Second.

<p>Appeal from the Otarte Circuit Court. — Hon. Ben E. Turner, Judge.</p> <p>There was no evidence of any contract, express or implied, between the plaintiffs and defendant, in which custom could enter and form a part. There was no privity between plaintiffs and defendant. The only theory plaintiffs could recover on in this case is an implied contract. But here he must fail; for, to recover for work done, there must be evidence of an express or implied promise. Allen v. Bowman, 7 Mo. App. 29 ; Allen v. Richmond, 41 Mo. 302; Suits v. Taylor, 20 Mo. App. 166. The only contract entered into was between defendant and the purchasers of the hay. The court erred in the instruction of its own motion, numbered 3 , as there is no evidence in this case that any hay was to be paid for before removing. The contract is that it was purchased in the stack by the ton ; nothing said about terms of payment. Instructions must be based on evidence. Beauchamp v. Higgins, 20 Mo. App. 514; Sheedy v. Sireator, 70 Mo. 679.</p>

Ben. E. Turner, Judge. (1) The separation was by consent. We submit that there is a most decided weight of testimony to this effect, and, therefore, the plaintiff was not entitled to recover. R. S. 1889, sec. 4507; Simpson r. Simpson, 31 Mo. 24; Cillinwaters v. Cillinwaters, 28 Mo. 60.

— How. J. M. Davis, Judge. (1) Instructions must be framed witli regard to the issues made by the pleadings, and all the issues must be presented. Henry v. Hinds, 18 Mo. App. 497; Beauchamp v. Higgins, 20 Mo. App. 514; Bank v. Westlake, 21 Mo. App. 565; Bank r>. Murdock, 62 Mo. 70; Class n. Gelvin, 80 Mo. 297; Mansur v. Botts, 80 Mo. 657. (2) Instructions that present questions outside of the issues tendered by the pleadings should be refused.

— Hon. M. G. .McGregor, Judge. (1) There is no equity in the plaintiffs’ bill. A court of equity will not interfere on behalf of one creditor to enable him to take advantage of technical defects in the proceedings of a court of law, but will leave the parties to their legal remedies. 2 Story Equity, secs. 887, 1575; High on In juno., secs. 85, 86, 87, and note ; secs. 129, 130 ; Kirk n. Wheeler, 3 John. Ch. 275, 280 ; Budd n. Long, 13 Fla. 309 ; French r. Sholwell, 6 John.

— Hon. M. G. McGregor, Judge. (1) The ex parte affidavit introduced by plaintiff was only competent to prove a naked assignment, and was not competent evidence on the controverted issue as to good faith, valuable consideration or indorsement before due. R. S., sec. 4875, p. 1098.

— Hon. O..H. S. Goodman, Judge. (1) We think the court erred in refusing to permit the plaintiff to testify on rebuttal as to. alleged conversations testified to by the witnesses, Mrs. Frank Helton and W. Markley.

— Hon. Andrew Ellison, Judge. Statement by tbe court. This action is based on an account, and was begun before a justice of tbe peace. It was appealed to the circuit court, where plaintiff had judgment, and defendant appeals.

— Hon. Cyrus A. Anthony, Judge. , (1) The tools in question were placed in defendant’s hands by the owners for necessary repairs, and were repaired by defendant after plaintiff’s mortgage became due, and plaintiff never took possession of them, •or attempted to do so, under his said mortgage, till such repairs were made ; and, in such case, defendant’s artificer’s lien at common law is prior to the lien of said mortgage, and he had a right to retain the possession of said…

.Appeal from the Nodaway Circuit Court. — Hon. Cyrus A. Anthony, Judge. ■ (1) Refusing instruction, numbered 1, asked by •appellant, and giving instruction, numbered 1, for respondents was error. The evidence of Black was positive that the object of said mortgage was to hinder and delay his creditors, and that respondents suggested and. agreed thereto. Crow v. Beardsley, 68 Mo. 435, at. bottom of p. 440; Wilburn v. Railroad, 36 Mo.

— Hon. E. M. Hughes, Judge. . (1) The petition does not state a cause of action. There is no allegation of a conversion. Perry v. Musser, 68 Mo. 477. There is no charge that plaintiff was damaged. Damages must be specifically pleaded in this character of cases. Perry v. Musser, 68 Mo. ■477. The petition is not sufficient, as an action of tresspass. It is essential in trespass or trover to allege and prove possession at the date of the act.

— Hon. J. W. Henry, Judge. (1 ) If Mitchell alone entered into the contract with Dugan, whereby the former agreed to buy, and the latter agreed to furnish, all the sawed stone required by the plans and. specifications of the building, then even if Mitchell did abandon the work, and Frazier finished it, a lien in the name of Mitchell would have been good, .and the adding of Frazier’s name to it would not have made it bad.

— Hon. J. H, Slover, Judge. (1) The last entry, made nunc pro tunc, is a judgment against both defendants. One of defendants being a married woman, this was error; while it might not be void in a collateral proceeding, it is error. Mustek, v. Dodson, 76 Mo. 624; Baun v. Bauer, 40 Mo. 61; Higgins v. Pellzer, 49 Mo. 152. (2) The first judgment entry was the judgment actually rendered by the court; hence there was nothing to correct.

<p>Appeal from, the Jackson Circuit Court. — Hon. J. H. Slover, Judge.</p>

— Hon. J. H. Slover, Judge. (1) The requirement of this statute is a matter of substance. The verification is designed to authenticate the claim asserted. The supporting oath is not a mere idle ceremony. Its absence or insufficiency is a defect which goes to validity of the claim,, and is vital in its nature. The objection may be made at any stage of the proceedings to enforce the lien.

— Hon. J. M. Davis, Judge. (1) From the record in this cause, the question, as we deem it, for consideration is whether the act of the legislature, approved April 27, 1883, commonly known as the “stock law,” was in force in Carroll county on December 25, 1888. Has appellant saved enough upon the record to raise this question ? We maintain that he has.

— How. D. P. Stratton, Judge. (1) The court should have dismissed the appeal. The plaintiff voluntarily paid off the judgment of the justice, and thereby satisfied and extinguished it, so that there was nothing in existence from which to appeal, when he attempted some days later to take an appeal. Houck v. Swartz, 25 Mo. App. 20 ; Robarás v. Lamb, 76 Mo. 192.

— Hon. R. H. Field, Judge. (1) The statute of Kansas is almost identical with article 8, section 6, of the constitution of 1865 of Missouri, creating double liability of stockholders. Our supreme court construed the statute penal in its nature. Krizer v. Woodson, 19 Mo. 327-330 ;’ Ochiltree v. Railroad, 54 Mo. 113. (2) Statutes penal in their nature will not be enforced in another state.

— Hon. R. H. Field, Judg (1) Only the separate estate of a married, woman can be subject to her contracts in equity, and the burden is on the plaintiff to show that any estate is her separate estate.

— Hon. R. H. Field, Judge. (1) The plaintiffs were non-residents, and defendant .gave notice o£ appeal in one of the modes authorized by statute. The justice accepted the notice and filed it. This act amounted to a declaration on his part, that he had no knowledge that plaintiffs had an agent in the •suit within his knowledge. Defendant had a right to act upon the presumption that the justice would have informed him who was plaintiffs’ agent had he possessed such knowledge.

— Hon. J. W. Henry, Judge. (1) An order of judgment of a court is res adjudicata only when it is final and rendered on the merits of the case. An interlocutory order cannot be. Herman on Estoppel, sec. 47, p. 38; Freeman on Judgments [ 2 Ed.] secs. 251, 260 ; Carrett r. Oreemoell, 92 Mo. 120 ; Spradling v. Conway, 51 Mo. 51 ; Taylor v. Larkin, 12 Mo. 103 ; Bell v. Hoagland, 15 Mo. 360; Clemens «.

— Hon. Jas.. Gibson, Judge. (1) The court erred, in rendering judgment for the defendant. Where no notice of appeal is served on the respondent, it is mandatory on the circuit court to either affirm the judgment of the justice or dismiss the appeal.

— Hon. Jas. Gibson, Judge. (1) The allowance by an assignee is a judgment, in every sense of the term final and res judicata. Eppright v. Kaufman, 90 Mo. 25; Nanson v. Jacobs, 93 Mo. 331. (2) The minute of allowance made on the back of the claim, even if proven to have been made by the assignee, which is denied, is not such a judgment of allowance or a sufficient record to warrant the court in presuming the jurisdictional facts upon which the assignee rendered it.

— Hon. J. W. Henry, Judge. (1) We need not show actual fraud in this case. Innocent misrepresentation is sufficient to obtain rescission in equity. The above doctrines are fully maintained by our supreme court. Glasscock v. Minor, 11 Mo. 655 ; Dunnv. White, 63 Mo. 181,184,185 ; Isaacs v. SJerainka, 95 Mo. 517, 524; Harris v. Board of Ed., 3 Mo. App; 570; Bank v. Mien, 59 Mo. 310, 313 ; Koontz v. Bank, 51 Mo. 275, 280.

— Hon. Jas. Gibson, Judge. (1) There was no plea of surrender in this case. Defendants’ answer was a simple allegation of abandonment without any allegation of acceptance by plaintiffs of the premises in discharge of his covenant in the lease to pay the rent for the unexpired term. Thomas v. Cox, 6 Mo. 506 ; Livermore v. Eddy, 33 Mo.' 547 ; Kerr v. Clark, 19 Mo. 132.

— Hon. Richakd Field, Judge. (1) The admission of the contents of Mr. Pratt’s letter, handed by A. J. Gillespie to Joseph Wright, was prejudicial error. Rosenstock ». Tomey, 32 Md. 169; Wolstenholm v. Wolstenholm, 3 Lansing (N. Y.) 45. (2) That error was not cured by the attempt of the court to withdraw the testimony from the jury; such withdrawal, to be effectual, should have been by an unequivocal written instruction.

— Hon. J. H. Slover, Judge. (1) The questions as to local usage in Kansas City then on this branch are: First. Did any local usage exist in this respect? Second. Wás the existence, duration and practice of such usage such as to prove a local custom. Third. If the usage sufficiently existed to so prove a local custom, can such local custom bind defendant without knowledge of it ?. Fourth. Is not such knowdedge an issuable fact; to be proved by evidence ?

— Hon. Joseph Cravens, Judge. (1) .The finding and decree of the trial court were contrary to and entirely unsupported by the evidence, and ought not to stand. (2) Although the monthly payments of $4.17 per month' were actually paid by plaintiff as usurious interest upon the balance remaining due on the Barramore note to procure an extension of time, such payments cannot be applied in reduction of the principal.

<p>Practice, Appellate: affirmance for failure to prosecute. An appellant left the state and failed to provide his attorneys with funds for the payment of the costs of the transcript, in consequence whereof the transcript was filed after the time allowed by law for the filing thereof. Held that no diligence was shown, and that the judgment appealed from should, on motion of the respondent, ' be affirmed for failure to prosecute.</p>

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

<p>1. Benefit Societies: construction of by-laws working a for-* feiture. By-laws working a forfeiture of membership in an association are not favored, and should be construed so as to avoid, the forfeiture, if the language employed, considered in connection with other by-laws, will admit of such a construction.</p> <p>2. Practice, Appellate: assignment of errors not called to the attention of the trial court. This court will not consider the assignment of an alleged error, which has not been called to the attention of the trial court.</p>

<p>1. Justices of the Peace : joinder op causes op action. Several causes of action may be joined in one suit before a justice of the peace; the only restriction is that causes of action founded in contract should not be joined with those founded in tort.</p> <p>2. Practice, Trial: joinder of inconsistent causes. When several causes of action united in one suit are inconsistent, so that the proof of one necessarily disproves the other, and their joinder would otherwise be permissible, the circuit court should, at the request of the defendant, require the plaintiff to elect before trial on which one he will proceed, and. may do so of its own motion.</p> <p>3. -: election between several counts for same cause op action. If several counts in a petition are different consistent statements of the same cause of action, so that only one recovery qan he had, semble that the court, if requested by the defendant, should compel the plaintiff at the close of his evidence to elect on which of the counts he will take the verdict of the jury, and it may do so of its own motion ; but no opinion is expressed as to whether a refusal of the court to require such election would be prejudicial error.</p> <p>4. Railroads: killing op stock : obligation to fence. The statutory obligation of a railroad to fence the road does not extend to crossings of highways, whether de jure or de faeto. Held, accordingly, in an action for the killing of stock, predicated on the failure of the railway company to fence where its road crossed a highway, that it was immaterial whether the highway was maintained by work under a road overseer or not.</p>

<p>Railroads: killing op stock : presumptions. Where an animal is shown to have been killed by oars at a point where the road is required to be, but is not, fenced, it will be presumed, in the absence of evidence to the contrary, that the loss was occasioned by the failure of the railway company to fence its track. And evidence, that the injury occurred where the road ran through woods, establishes, prima facie at least, an obligation of the company to fence its road at that point.</p>

<p>Appeal from the .Scotland Circuit Court. — PIon. Ben. E. Turner-, Judge.</p>

<p>Jurisdiction, Appellate. The defense in this case, which was a suit for the collection of taxes, was, that the assessment was invalid, because made against an estate and not against a person, and because there was no evidence of ownership on the part of the person against whose estate the assessment was made. Held that the cause involved thé construction of the revenue laws of this state, and that the supreme court alone had jurisdiction of the appeal.</p>

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

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) In giving instruction, numbered 2, for defendant, on the court’s own motion, and in refusing instructions, numbered 2 and 5, asked by the plaintiff, the court violated the principle that, where two parties- make a contract of sale and commit their intentions in reference thereto to writing, neither can contradict it by parol evidence of a contrary intent.

<p>Appeal from the Howell Circuit Court. — Hon. Joseph Cravens, Judge.</p>

<p>Bill of Exceptions: signature. When a bill of exceptions is signed by the judge of another circuit than the one in which the trial occurred, and, so far as the record discloses, the judge signing the bill is not the one who tried the cause, the bill will be treated as a nullity.</p>

<p> Appeal from the Greene Circuit Court. </p>

— Hon. H. O. O’Bryan, Judge. (1) The first cause of action stated in plaintiff’s petition fails to state facts sufficient to constitute- a cause of action.

<p>Practice, Appellate: jurisdiction : transfer of causes. It is a rule of practice of this court to transfer a cause to the supreme court, whenever the jurisdiction of the appeal is the subject of serious doubt.</p>

<p>Criminal Law: information for assault. An information for a common assault, which charges the offense in general terms, without charging any particular intent, is sufficient.</p>

<p>Appeal from the Marion Circuit Court, — How. Tjios. H. Bacon, Judge.</p>

— Hon. John Gr. Wear, Judge. The points made by defendant in error in regard to the bill of exceptions are not well taken. The recital of the record that the bill of exceptions was filed is sufficient, if it was then signed by the judge under the act of 1885. The filing of a paper is the actual delivery to the clerk. Grulobs v. Cones, 57 Mo. 83. The seal of the judge is not required. Acts of 1885. (1) The writ of error is sued out in the name of a firm, which invalidates it.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Daniel Dillon, Judge.</p> <p>(1) The court erred in overruling defendant’s demurrers to the evidence. Hionter v. Railroad, 112 N. T. 375 ; Heliff v. Railroad, 31 N. W. Rep. 183; Achtenhagen v. Oily, 18 Wis. 331; Railroad v. Hazzard, 26 111. 377; Stager v. Railroad, 12 Atl. Rep. 821 ; Dowling n. Allen, 88 Mo. 296. (2) The court erred in refusing to give the instructions asked by defendant. Heliff v. Railroad, supra; Dowling ». Allen, 88 Mo. 299. (3) The court erred in giving the instructions asked by plaintiff. Wilburn v. Railroad, 86 Mo. App. 210; Railroad v. Ganman, 13 S. W. Rep. 281 ; Harris v. Railroad, 89 Mo. 233 ; Railroad n. Hazzard, 26 111. 377 ; Stager n. Railroad, 12 Atl. Rep. 821; McCarthy v. Railroad, 92 Mo. 541; Boland ». Railroad, 36 Mo. 490; Williams v. Railroad, 96 Mo. 283.</p> <p>(1) The defendant’s train being engaged in carrying passengers, though a freight train, was bound in receiving and carrying its passengers to have used care commensurate with the danger. If defendant chose to carry passengers on freight trains, its servants were bound to use a high degree of care to preserve the passenger from injury. Tibby v. Railroad, 82 Mo. 300 ; Graham n. Railroad, 66 Mo. 536 ;• Dougherty v. Railroad, 97 Mo. 654. ( 2) The evidence was sufficient to go to the jury on the question of invitation by the.conductor to get on, and the lurch of the car as a negligent act. Doiogherty v. Railroad, supra. (3) The second instruction given for plaintiff, and complained of, is in full and strict compliance with the law as laid down by the supreme court-of this state from the case of Donohoe v. Vulcan Go., 75 Mo. 401, to the last decision, as an inspection of cases cited, for appellant will show. The instruction distinctly told the jury that, in passing upon the question of plaintiff’s negligence, they should consider his age and discretion.</p>

— Hon. John GL Wear, Judge. (1) Plaintiff’s amended petition fails to state factssufficient to constitute a cause of action, because it-neither alleges that the animal came on the track, nor • that it was killed at a place where the railroad passes ■- through, along or adjoining inclosed or cultivated fields •• or uninclosed lands. Ward v. Railroad, 91 Mo. 168;: Wood v. Railroad, 39 Mo. App. 63.

<p>Appeal from the Oregon Circuit Court. — Hon. James Orchard, Special Judge.</p> <p>Without proof showing that, at the point where the animal got upon the track, the railroad ran through uninclosed lands and was not fenced, there is no liability-fixed on defendant, and plaintiff .cannot recover. Manee v. Railroad, 79 Mo. 196; Jantzen v. Railrdad, 83 Mo. 171 ; Wilson v. Railroad-, 18 Mo. App. 258 Pearson v. Railroad, 33 Mo. App. 543. „</p>

— Hon. James Orchard, Special Judge. It is well settlfed that the point where the animal -came npon defendant’s track determines the liability, and not the point where the animal was found dead; and the animal, having been found dead where the road was-fenced there can be no presumption that the animal got upon defendant’s track where the road should have been fenced and was not. Ehret ®. Railroad, 20 Mo. App. 251; Foster ®. Railroad, 90 Mo. 116 ; Nance ®.

— Hon. Ben. E. Turner, Judge. ' The lien attaches to the real estate as well as the improvement, and the lien is not destroyed by reason of the building having burned.

<p>1. Res Adjudicata: principal and surety : mechanics’ liens. If a proceeding under the mechanics’ lien law results in a judgment establishing the lien before a tribunal or magistrate having juris-v diction, the contractor being a party thereto, such judgment is con- . elusive as between the owner of the premises and the contractor, notwithstanding irregularities in the proceedings ; and such judgment is also equally conclusive against the sureties in a bond, given by the contractor to such owner, and conditioned that the contractor would perform his contract, which bound him to pay laborers and materialmen, and would indemnify the owner against mechanics’ liens.</p> <p>2. Mechanics’ Liens: evidence of payment. If an original con-/ tractor gives to the subcontractor an order for the payment of money upon the owner of the premises, the possession of such order by the owner is presumptive evidence that he has paid it.</p> <p>8. -: interest. The owner of premises paid judgments establishing mechanics’ liens on the premises and conclusive upon the contractor and his sureties. Held that the owner was entitled to interest on the amount thus paid from the date of judgment.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The note having been made payable to Robert II. Payne, trustee for Margaret Payne, it was payable to Robert H. Payne personally, the words “trustee for’Margaret Payne” being simply descriptio personos.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The check from Rice, Stix & Co. to the appellant was inadmissible in evidence, and should have been excluded as having no bearing on the points at issue. Frederick v. Allgaier, 88 M*o. 598 ; Ritter v. Bank, 87 Mr. 575.

<p>1. Master and Servant: apparent defects. Held (Rombauer, P. J., dissenting) that a servant suing for injuries resulting from the use of a defective appliance furnished by the master will not be debarred from a recovery by reason of the fact that the defect was obvious, unless the danger of the use of the appliance was so glaring that there could be no fair debate as to whether a prudent man, situated as the plaintiff was and under the same circumstances, would have assumed the risk. And all of the judges concurred in holding that the master was liable in such case if he assured the servant that the appliance could be safely used and ordered the servant to use it.</p> <p>3. - : APPLIANCE DEFECTIVELY CONSTRUCTED BY FELLOW-SERVANT : instructions. The mere fact that an appliance, furnished by the master to his servants and causing injury to one of their number, has been constructed by one who is a fellow-servant of the one injured, will not exonerate the master from liability for the consequences of a defectiveness of the appliance. But where 'the master employs competent workmen, and provides suitable materials for the necessary staging to be used by them, and intrusts the duty of erecting it to them as a part of the work which they are engaged to perform, he is not liable to one of them for injuries resulting from the falling of the staging.</p> <p>3. -: -: instructions. The failure of the court to embody the latter limitation in its instructions, when not asked in proper form, amounts merely to non-direction, and is, therefore, not . ground for the reversal of a judgment in favor of the servant.</p> <p>4. -; LIABILITY OF MASTER FOR TORTS OF SERVANT. A master is not liable for every act which a servant may do while acting about the master’s business. The act must not only be done while the servant is employed about the business of the master, but it must also pertain to the duties of the employment. And held that, where the second mate of a boat engaged in inland navigation used violence for the purpose of compelling a deck-hand to work, and the deck-hand did work under such compulsion, the master would not be liable for the wrong done, in the absence of evidence of the delegation of such authority to the mate.</p>

<p>1. Negligence: collision on highway : sufficiency of the evidence. The evidence of negligence on the part of the defendant considered, and held sufficient to take the case to the jury.</p> <p>3. Practice,Trial: admission of incompetent evidence : effect of instruction withdrawing it. While the general rule, applicable to civil trials is, that incompetent evidence admitted at the trial may he withdrawn by the party offering it, or stricken out on his motion, or withdrawn by an instruction admonishing the jury to disregard it, so as to cure the error of the admission of it, cases may arise, in which it will be apparent to an appellate court that this error was probably not cured by such withdrawal, and which will, therefore, warrant the reversal of the judgment.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge.</p> <p>(1) The bill of lading introduced in evidence by tlie defendant is tlie express contract under whose terms this shipment was made. The law presumes that the consignor has read the bill of lading delivered to him, as it was his duty to read it, and its receipt by him without dissent is conclusive in the absence of fraud, making the bill of lading the express contract between him and the carrier. Shelton v. Despatch Co., 59 N. Y. 258; Nelson v. Railroad, 48 N. Y. 498; Moriarity v. Herndon, 1 Daly, 227 ; Grace v. Adams, 100 Mass. 505 ; O’Brien v. Kinney, 74 Mo. 125. The authority of Miss Flynn to enter into a special contract, which shall be binding on plaintiff, is to be presumed, and the carrier is under no obligation to make inquiry. Her agreement upon the terms and conditions of transportation is the agreement of plaintiff, as she was the agent for that purpose. Moriarity v. Herndon, 1 Daly, 227. (2) The “owner’s risk” limitation in the special contract inured to the benefit of the connecting carrier, this defendant. Kiff v. Railroad, 32 Kan. 263; Holliday v. Railroad, 74 Mo., loc. cit. 162. (3) The instruction, in the nature of a demurrer to the evidence, at the close of the whole case, ought to have been given. Defendant, in producing this special contract, shifted the burden of proof, and was entitled to a verdict, unless plaintiff then and thereafter showed that defendant’s negligence had supervened, and was the proximate cause of the injury. This being trae, and there being no evidence of defendant’s'negligence before the court and jury, the instruction was correct, and it was worse than useless to submit the case. Kiff v. Railroad, 32 Kan. 263 ; Railroad v. Harper, 44 Ark. 208; Tleil v. Railroad, 16 Mo. App. 370; Keep. Co. v. Perkins, 42 Ul. 459; Bradstreet v. Her an, 2 Blatch. 117; Abb. on Ship. [Story’s Ed.] 216; The California, 1 Sawy. 12; Hutch. Car., secs. 767, 768; Railroad v. Talbot, 39 Ark. 523; Railroad v. Corcoran, 40 Ark. 375; Railroad v. Hally, 25 Kan. 35; Muser v. Holland, 17 Blatch. C. C. 412 ; Carey v. Atkins, 6 Ben. 562 ; Railroad v. Bone, 52 Ark. 26; Lamb v. Railroad, 46 N. Y. 278, 281, 282; Farnham v. Railroad, 55 Pa. St. 53; Steamboat v. Carney, 5 Kan. 645; Morrison r>. Construction Co., 19 Am. R. R. Répts. 312; Grace v. Adams, 100 Mass. 505; Ward v. Andrews, 3 Mo. App. 277; Holán v. Shickle, 3 Mo. App. 304, 305; Shultz v. Railroad, 36 Mo. 32; Czeh v. Hav. Co., L. R. 3 C. P. 18; Dorr v. Hav. Co., 11 N. Y. 492, 493 ; Stump v. Hutchinson, 11 ■ Pa. St. 533; The Periere, 8 Ben. 301; Lamb v. Railroad, 7 Allen, 98; Patterson v. Clyde, 67 Pa. St. 500; Railroad v. Reeves, 10 Wall. 189, 190 ; York v. Railroad, 3 Wall. 107; Muddle v. Stride, 9 Car. & Payne, 380; Harvey v. Railroad, 6 Mo. App. 585; Cotton v. Railroad, 67 Pa. St. 211; Witting v. Railroad, 28 Mo. App. 103. A demurrer to the evidence, or an instruction in the nature of a demurrer, should always be sustained when negligence is Dot shown. Kiff v. Railroad, 32 Kan. 263; Morrison v. Cons. Co., 19 Am. R. R. Repts. 312; Exp. Co. v. Perkins, 42 111. 459. And the fact that goods or wares are broken or damaged in transit is not proof of negligence, and raises no inference of negligence, and from it negligence cannot be presumed. Harvey v. Railroad, 6 Mo. App. 585; Lamb v. Railroad, 7' Allen, 98; Ward v. Andrews, 3 Mo. App., loe. oit. 277; Nolan v. Shickle, 3 Mo. App., loo. cit. 304, 305. For the presumption that every man does his duty runs in favor of the carrier. Farnham v. Railroad, 55 Pa. St. 53; Waldron v. Railroad, 8 Barb. 394; Lord Halifax Case, Bull. N. P. 298; Hartwell v. Root, 19 Johns. 345. The carrier is not liable for the defective manner in which goods are secured or packed for shipment, nor for inherent defects in the goods themselves. Railroad v. Richardson, 41 L. J. & C. P. 60; Barbour v. Railroad, 34 L. T. N. S. 67. (4) In the absence of the special contract, defendant was entitled to judgment. Plaintiff did not show that the injury occurred on the line of defendant’s road. Kiff v. Railroad, 32 Kan. 263; Ellsworth v. Tartt, 26 Ala. 733. Nor did the plaintiff show that defendant and the Eureka Springs' Railway Company were partners, and jointly liable for any injury to the goods on any portion of the through line. There must be a communion of profit before there can be a partnership. ■ Here there was no joint expense, no joint property, no joint fund, no joint profits, and no arrangement to share loss and profit. Hence, there was no partnership. Parker v. McLure, 15 Wend. 187; Collyer on Part., secs. 18, 21,-22; Jackson v. Robinson, 3 Mason, 141. Where a rate of freight, fixed by mutual agreement, is charged for through service by several carriers, and collected by the last carrier, the carriers are not partners, and there is n,o joint liability. Gass v. Railroad, 99 Mass. 220; Ins. Co. v. Railroad, 104 U. S. 146; Myrick v. Gordon, 20 N. Y. 96; Stratton v. Railroad, 2 E. D. Smith, 184; Watkins v. Railroad, 8 Mo. App. 570. Nor did the plaintiff show that the goods were in good order when delivered to defendant! In the absence of evidence that goods were delivered in good order to the first carrier, it cannot be inferred that they were in good order when received by the second carrier. Plaintiff must show that the second carrier-received them in good order, for the carrier has no means of opening packages and examining their contents. Railroad v. Kirkwood, 45 Mich. 51.</p> <p>(1) Respondent made out a prima facie case against appellant by showing that the goods had been delivered at Eureka Springs to either of said railway companies in good condition, and' delivered to her by appellant at St. Louis in a damaged condition. Lin v. Railroad, 10 Mo. App. 125. Appellant could then evade its common-law liability only by showing that it was exempted from such liability by the terms of a special contract. Levering v. Ins. Co., 42 Mo. 88; Read v. Railroad, 60 Mo. 199. (2) But such special contract must be supported by a valuable consideration. McFadden v. Railroad, 92 Mo. 343. Even if in the case at bar the proof of negligence was ultimately necessary, respondent could justly contend that negligence was proven in a manner sanctioned by the authorities of this state. In such cases after proof of the alleged special contract by defendant whereby the carrier is exempted from its common-law liability, the plaintiff may still prove negligence on the part of defendant by simply showing that the goods could have-been safely transported by the exercise of reasonable skill and attention on the part of the carrier. The evidence here discloses not only that the goods could have been safely transported by the exercise of reasonable skill and attention on the part of the carrier, but also that they were in fact safely transported over the said roads-(most of them in the same crates and boxes) from St. Louis to Eureka, some eight months prior to that time. Read v. Railroad, 60 Mo. 199 ; Wolf v. Exp. Co., 4B Mo. 421.</p>

— Hon. E. M. Hughes, Judge. (1) The information is bad because it is not based upon the personal knowledge of the prosecuting attorney, and the information is not based upon the affidavit of any person having personal knowledge of the alleged offense. State v. Willcson, 36 Mo. App. 373, and cases cited.

<p>1. Res Adjudieata: second appeal. When a cause has been brought to this court and is remanded for another trial, the rulings of this court on such appeal become the law for the retrial of the case.</p> <p>2. Practice, Appellate: weight of evidence. In actions at law this court will- not determine controverted issues of fact, and it will not disturb a finding of the jury on the ground that it is contrary to. the testimony of witnesses, when such testimony is controverted by the physical facts of the case.</p> <p>3. Instructions: refusal : unjustifiable • number, The appellant in this cause having offered twenty-three instructions, held that the trial court would have been justified, by reason of their number, in refusing all of them.</p>

■Appeal from the Jackson Circuit Court. — Hon. Turner A. GriLL, Judge. (1) Suits on such special tax bills must be brought before a justice of the peace in Kansas City. Amended Charter, 1875, sec. 4, p. 60 ; Acts, 1875, p.253 ; Karnes v. Alexander, 92 Mo. 671. (2) And, if the jurisdiction of the justice of the peace does not affirmatively appear upon the face of the proceedings, the judgment and all acts thereunder are void. State v. St. Louis, 1 Mo.

— Hon. J. H. Slover, Judge., (1) ■ The true rule of appellate courts is ■: Whenever error intervenes a presumption of prejudice arises, and, unless the record shows, beyond a doubt, that no prejudice resulted, there must be a reversal. Clark v. Fairley, 30 Mo. App. 335 ; Deery v. Cray, 5 Wall. 807 ; Smiths r>. Shoemaker, 17 Wall. 630, 639 ; Railroad r>. C Brien, 119 IT. S. 99, 103 ; Gilmer v. Higley, 110 IT.

— Hon. Charles W. Sloan, Judge. (1) The court erred in peremptorily instructing the jury that, under the pleadings and all the evidence in the case, the plaintiff was not entitled to a verdict. First. The demurrer to the evidence not only'admitted that all-the facts testified to were true, but also every reasonable inference that a jury might make from the facts proven against the demurrant. Wilson v. Board of Ed., 63 Mo. 137; Brink v. Railroad, 17 Mó.

— Hon. Chas. W. Sloan, Judge. Statement of the. case by the court. The plaintiff is a corporation organized under the laws of. the state of Indiana.

— Hon. M. G. McGregor, Judge. (1) The order of the sale of the ties made by the circuit court of Cedar county was an adjudication in rem and conclusive and bindiug upon all the world in the same manner and to the same effect as any other finding and adjudication of a court of competent jurisdiction, Freeman v. Thompson, 53 Mo. 183, 190; Johnson v. Beasley, 65 Mo. 250 ; Cray r. Boioles, 74 Mo. 423 ; Lawrence County v. Hall, 79 Ind. 359 ; Braioley v. Ramsay, 67 Mo. 280 ;…

feppeal from the Carroll Circuit Court. — Hon. ,J. M. Davis, Judge. (1) The first instruction for plaintiff is erroneous r First.

— Hon. J.- H. Slovek, Judge. (1) The evidence of plaintiff as to conversation with defendant’s agent at time policy was applied for was not admissible to show waiver of the condition in the policy requiring consent to other insurance to be indorsed on the policy. No such issue was raised by plaintiff’s reply. Mueller v. Ins. Co., 45 Mo. 84; Cart-side v. Ins. Co., 8 Mo. App. 593; Judy v. Duncan, 21 Mo.

— Hon. J. H. Slover, Judge. Statement by the court. This was a suit brought by the plaintiff against the defendant in the circuit court of Jackson county, upon a fire-insurance policy. The answer admitted the execution of the policy.

John W. Henry, Judge. Statement by the court. This action is for damages for being forcibly ejected .from one of defendant’s cable street cars by one of its conductors. Plaintiff entered the car where there were other passengers, including ladies. He paid his fare by giving the conductor a dime, the conductor returned to him a nickel, and passed' on out into the gripcar collecting fares.

<p>1. Trial Practice: demurrer to evidence : rules as to. Where there is no evidence to sustain the material allegation of the petition, there is nothing for the jury to consider, and the court may-so declare: but when the facts are disputed or when a material fact is left in doubt, or there are inferences to be drawn from the facts proven, or when there is some evidence, however slight, tending to establish some of the facts necessary to a recovery, the case under proper instructions should be submitted to the jury.</p> <p>2. Master and Servant: suitable appliances : diligence : liability. The master impliedly contracts to furnish suitable machinery and appliances for his employe to work and operate with, and he must use due care in that behalf, and is liable for damages occasioned by neglect or omission in that respect; but he is not the absolute insurer of the safety of the servant, nor is he bound to provide the most approved equipments or such as are absolutely safe, but only such as are reasonably safe.</p> <p>3. --: vice-principal : eellow-servant. The foreman of a gang engaged in unloading a large stone from a flat car, who was not working with the men but was present giving orders to the men in relation to the moving of the stone, is the representative or vice-principal of the defendant.</p> <p>4. --: trial practice : demurrer to evidence. Whether the defendant failed or not to furnish the plaintiff with suitable and reasonably safe appliances, etc., with which to perform his work in the required method, is held under the evidence in this case to have been properly submitted to the jury.</p> <p>5. --: judgment of master: servant’s knowledge of danger : QUESTION FOR JURY: NEGLIGENT OBEDIENCE. The servant has a right to rely on the judgment of the master and assume that the instrumentalities and appliances furnished him were reasonably safe ; and whether the servant knew the danger to be anticipated from their use was, under the evidence in this case, for the jury under proper instructions ; and it cannot be said that the servant is negligent in obeying orders of the master, unless to do so was clearly to bring a danger to life or limb, nor is he bound to set his judgment against that of his master about things over which there can be a difference of opinion in the minds of prudent persons'.</p> <p>S. Instructions: non-prejudicial error. An instruction requiring the jury to find an unnecessary condition before finding for the plaintiff is 'not prejudicial error of which the defendant can complain.</p> <p>7. Master and. Servant: pleading : contributory negligence : fellow-servant. The mere averment in the answér to the servant’s action for damages on account of the master’s negligence, that the injury was caused by the plaintiff’s own negligence, is not sufficient to let in the defense that the injury was caused by the negligence of a fellow-servant.</p>

— Hon. J. H. Slover, Judge. (1) If on the trial the plaintiff had proven all of these allegations, he would have made precisely the same case as is held insufficient to support a judgment in Rey v. Tony, 24 Mo. 600. Since the plaintiff cannot be held to prove more than he alleges, the petition does not contain facts sufficient to constitute a cause of action.

— Hon. James GfiRSON, Judge. (1) Instruction, numbered 5, asked ' by inter-pleader, correctly declares tke law, and should have been given as asked. The question on' the interplea is not the good faith of the Lime Company, the vendor, •but the good faith of Hall, the vendee. It predicates everything on the ‘£ good faith ’ ’ of the interpleader and fairly submits to the jury the question of good faith on the part of the interpleader.

— Hon. Richakd H. Field, Judge. (1) When the appellant paid the purchase money for the hogs, by agreement the title became vested in him ; when he sold the hogs to Weidlein, by express agreement, the title remained in him until the purchase price was paid to him ; and, inasmuch as the purchase price was never paid, the title remained in him and was in him at the time of the sale and conversion by respondents.

— Hon. John W. Henby, Judge. (1) The judgment upon which the execution is-founded is void. Justices’ courts, being courts of limited and special jurisdiction, have only such powers-as are expressly conferred on them by statute; and cannot exercise any jurisdiction not conferred by statute. Dillard v. Railroad, 58 Mo. 69 ; Bnlow v. Newland, 22 Mo. App. 581; Williams v. Bower, 26 Mo. 601; Rohland v. Railroad, 89 Mo. 180.

— Hon. James Hibson, Judge. (1) Instruction, numbered 1, given for plaintiff, fixes the measure of damages as the value with the six-percent. interest. This instruction ignores the offer made to return the property, which certainly was proper in mitigation of damages. Ward v. Moffet, 38 Mo. App. 395, 401 ; War man v. -Kramer, 73 Pa.

— Hon. D. P. Stratton, Judge. (1) The tax bill made aprima facie case. R. S. 1889, sec. 1499. (2) The journal of the city council is intended as a record of the (proceedings of the council, and acts of its clerk ought not be recorded*there.

■— Hon. Andrew Ellison, Judge. (1) William O. Satterfield took possession of the sixty-acre tract in question in 1875, directly after liis first wife got her divorce and judgment for alimony for tlie support of herself and their children. He failed to testify.

— Hon. Andrew Ellison, Judge.- (1) The order granting the new trial (pp. 44, 45 Abs.) specifies the ground on which it was granted, that plaintiff Harriet Rickroad committed perjury in swearing she did not write the letter used in evidence marked exhibit “A,” and that the verdict for the plaintiff was thereby procured by the perjury of the plaintiff, as required by section 2241, Revised Statutes. Burlce v. Kansas City, 34 Mo. App. 570.

Andrew Ellison, Judge. (1) Defendant’s first and second instructions are misleading, because they-use the word “sale” instead of '“delivery,” and his third instruction is subject to the same objection in the use of the word “sold” instead of “delivered.” The jury no doubt understood that these instructions referred to the contract made by Fred Metzger for the purchase of the machine.

— Hon. Cyrus A. Anthony, Judge. (1) The indictment is bad. It does not with sufficient particularity describe any road, nor does it with sufficient particularity describe or designate the place of obstruction. Kelly’s Crim. Law & Prac., pp. 88, 89, sec. 170 ; 1 Bishop’s Crim. Proc., secs. 81, 86, 89, 325, 494, 519 ; 2 Bishop’s Crim. Proc., secs. 98-100, 200, 201; 45 Ind. 338 ; State v. Wogan, 31 Mo. 340 ; State ?>.

— Hon. Cyrus A. Anthony, Judge. (1) The court erred in excluding from the jury the $213.39 Watson note. The error in describing the note was not material to the validity of the mortgage.

— Hon. John A. Hockaday, Judge. (1) Defendants rely for reversal of this case on the ground that there never was a binding contract made by the parties, and under the statute of frauds neither'party can enforce the agreement. Both parties must be bound or neither is bound. Langstrap v. Ins. Co.. 48 Mo. 201, 204. All bargains to be complete are mutual and reciprocal; both parties must be bound and not one alone. 2 Schouler’s Personal Property [2 Ed.] secs. 223-229.

— Hon. Charles W. Sloan, Judge. The instrument sued on in the first count in petition, not being certain and unconditional as to the amount to be paid, is not a negotiable promissory note. Bank «. Gay, 63 Mo. 33 ; Bank- v. Marlow, 71 Mo. 618; Storr v. Wakefield, 71 Mo. 622; Bank v. Gay, 71 Mo. 627; Samstag v. Conley, 64 Mo. 476; Fitzharris ». Leggatt, 10 Mo. App. 527 ; Garretson v. Purdy, 3 Dak. 178; Bullock ®.

— Hon. Chas. W. Sloan, Judge. (1) The evidence clearly entitled plaintiff to a finding and judgment, and the court erred in refusing plaintiff’s first declaration. Pentz «. Kuester, 41 Mo. 447; Kingman v. Abington, 56 Mo. 46 ; R. S. 1879, sec. 3080. (2) The plaintiff was in possession upon Bryan’s delivering the keys of the house to it. Possession in person was not required, and the court erred in refusing the first declaration of plaintiff. Kingman v. Abington, supra.

— Hon. Ü. M. Spencer, Judge. (1) The court erred in refusing to' give the instruction in the nature of a demurrer to the evidence asked for at the close of respondent’s case, and instruction, numbered 1, asked at the -close of the testimony-on behalf of the appellant. R. ,S. 1879, secs. 2500, 2501 (same sections, 5173 and 5174, R. -S. 18§9); Cook v. Clippard, 12 Mo. 379; Lay son r>. Rogers, 24 Mo. 192.

— Hon. D. A. DeArmo'nd, Judge. (1) The court erred in admitting the articles of association, and in admitting Thomas’ testimony over appellant’s objections. The objections to Thomas’ testimony, after he had stated Foster’s disclaimer of any power and authority to make any contract, should have been sustained.

— Hon. J. HSlover, Judge; (1) The defendant delivered the goods upon reasonable identification, considering the nature- of the express business, without neglect of any duty imposed upon it, and, in the absence of negligence connected with the shipment or delivery, is not liable. Steamboat v. M'oies, 28 Mo. 243 ; Express Co. v. VanMeter, 17 Fla. 783; s. c., 35 Am. Rep. 107; 15 Fed. Rep-. 826 ; Price v. Railroad, 50 N. Y. 213, and 10 Am.

— Hon. John W. Henry, Judge. The finding of the court was contrary to the facts and the law, and the court therefore erred in overruling defendant’s motion for a new trial. Burrell v. Highleyman, 33 Mo.

— Hon. Richard Field, Judge. (1) No evidence of payment of the notes sued on was admissible, because payment was not pleaded. Myers’ Supplement to Whittelsey’s Practice, sec. 163, subd. m; Martin v. Pugh, 23 Wis. 184; Hubler v. Pullen, 9 Ind. 273 ; Balter v. Kistler, 13 Ind. 63 ; McEyring v. Bull, 16 N. Y. 297 ; Texier v. Gouin, 5 Duer. 389 ; R. S. 1889, sec. 2049 ; Smith Go. v. Rembaugh, 21 Mo. App. 393.

Appealfrom the Jackson Circuit Court. — Hon. Richard-H. Field, Judge. (1) The mechanics’ lien law is to be liberally construed. Be Witt v. Smith, 63 Mo. 263 ; Gibson v. Nagel, 15 Mo. App. 597. (2) Stone flagging used as the covering or roof of an area way, which is constructed at the same time as the building, and used -in connection with it, is properly subject to a lien, although it be outside of the lines of the lot, and although it be used as a sidewalk.