Volume 47 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. Leroy B. Y allí ant, Judge. The question of agency is a matter of fact which it is the province of the jury to decide upon, and, if there is any evidence tending to prove the authority of. the agent, it should be left to the jury to determine the sufficiency and weight of the evidence.

<p>1. Master and Servant: liability of master to third persons. One who has been injured by the servant of another person cannot hold the master for the injury,'if the injury was the result of arrangements, made by him with the servant with knowledge that they were in contravention, of prior directions from the master to the servant.</p> <p>2. Practice, Appellate: instructions. The correctness ■ of an instruction given by the trial court cannot be reviewed on appeal, if no exception was taken by the appellant in the trial court to the giving thex-eof.</p>

Louis City Circuit Court. — IIon. James E. Withrow, Judge. (1) While it is true, as a rule, a geographical name cannot be so far appropriated as a trade-name by one person, as to prohibit other dealers or manufacturers in the same locality from selling their ware as coming from such locality, yet such inhibition applies only to the use of the name of the place where manufactured. The name of any other locality may properly become the subject of a trademark.

<p>Appeal from the it. Louis City Circuit Court. — Hon. Daniel D. Eisher, Judge.</p>

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

<p>Practice, Appellate: dismissal of cause for insufficiency of the STATEMENT AND BRIEF OF THE APPELLANT. The appeal in this cause is dismissed, owing to the failure of the statement and brief of the appellant to comply with the statute and the rules of this court.</p>

<p>1. Law and Fact: estoppel : partnership : sufficiency of the evidence. Whether a person has so held himself out as a member of a partnership as to estop himself from denying that he is one, is in every case a question of fact and not of law, provided that there is substantial evidence of such holding out. And held that there was substantial evidence thereof in this case.</p> <p>2. Unincorporated Societies: individual liability of members. If the articles of association of an unincorporated society contain a provision, whereby every member obligates himself to pay all debts contracted by the society, such obligation is enforceable by any creditor of the society.</p>

Louis City Circuit Court. — Hon. James E. Witi-irow, Judge. (1) When land is bought with the separate property of the wife, and the conveyance is made to her, such property is her separate property, though the conveyance may show only a legal title. Martin v. Colburn, 88 Mo. 229, 231; Boston v. Murray, 94 Mo. 175.

<p>Pleading: inconsistent defenses : prejudicial error. Two separate defenses are not inconsistent within the meaning of the statute prohibiting inconsistent defenses, if both may be true; and it is prejudical error to compel a defendant to elect between two defenses upon the ground that they are inconsistent, when they are not so.</p>

Louis City Circuit Court. — Host. Jacob Klein, Judge. The assignment of the lease, with, the consent of the lessor, and the acceptance of rent from the assignee by the lessor, relieved the lessee of all further liability under the lease. 2 Wood on Landlord & Tenant, p. 741, sec. 337, et seg.; p. 1354, sec. 553; Thursby v. Plant, 1 Saunders, p. 240, and- note; Wadham v. Marlowe, 8 East, 816; Taylor on Landlord & Tenant, sec. 438 ; Clemens r. Bloomfield,, 19 Mo. 121; Matthews…

<p>Appeal from the 81. Louis City Circuit Court. — Hon. Jacob Klein, Judge. ’</p>

Hon. E. M. Hughes, Judge. (1) It was error on the part of the trial court to make the provisions of sections 5180 and 5181 applicable to this case. This was a conditional sale, but not such a one as was contemplated by these sections. (2) There could have been no common-law judgment and award of execution in favor of defendant being a feme covert.

<p>Justices’ Courts: appeals. If the transcript of a justice of the peace in a cause, -wherein an appeal is taken, shows that the affidavit and bond for the appeal were filed with the justice within the time allowed therefor, but that the justice entered the order allowing the appeal after the expiration of that time because he had failed to satisfy himself in time of the sufficiency of the bond, the sufficiency of the appeal should be sustained under section 6334 of the Revised Statutes of 1889.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. It is the duty of a person before driving across the tracks of an electric railway to look and listen for approaching motor cars and to stop, if necessary, to avoid collision. Defendant’s first instruction refused should have been given. Harlan v. Railroad, 64 Mo. 480; Fletcher v. Railroad, 64 Mo. 484, and authorities there cited; Henze v. Railroad, 71 Mo. 636; Stepp v. Railroad, 85 Mo. 229; Damrill v. Railroad, 27 Mo.

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

<p>1. Landlord and Tenant: termination of tenancy. The evidence in this cause is considered, and held to establish that the defendant was a tenant at will, and that 'his possession of the premises sued for was lawful; since his tenancy had not been terminated.</p> <p>2. --: forcible entry: tenancy in common. Held, arguendo, that, if premises are held jointly by two tenants in common, and one of them forcibly ousts the other from the common possession, the latter may maintain an action of forcible entry for the purpose of being restored to such possession.</p>

— Hon. E. L. Edwards, Judge. (1) Instruction, numbered 3, given for plaintiff was erroneous. First. Mere spotting the ties was not sufficient to pass the title thereto between Walls and plaintiff, nor to vest the property in the latter as against Ramsey. Nicholson v. Golden, 27 Mo.' App. 132, 153; Steioart v. Nelson, 79 Mo. 524; Grant v. United States, 7 Wallace, 331. Second.

3. - : ALL PROPERTY OP LIKE KIND : EVIDENCE. If it should appear that the property enumerated was not all of like kind owned by the mortgagor, it would avoid the mortgage (as the description does not distinguish the mortgaged and unmortgaged), but that is a matter to be made to appear by evidence. Appeal from the Barton Circuit Court. — Hon. D. P. Stratton, Judge.

— Hon. James G-ibson, Judge. (1) The respondent was not entitled to recover under the pleadings and evidence, for the reason that it stands admitted that the viaduct, by the contract,was to be built upon and over private property. The respondent had full knowedge of this fact.

— Rots. J. A. Hockaday, Judge. (1) Proof of tlie mailing of a letter properly stamped, and addressed does not authorize the presumption of its delivery. The copy of the alleged letter from Gentry toT. R. Burch, general agent, should have been excluded.

Original Motion to Retax Costs. (1) The appellant, under the statutes of 1889, is entitled to have taxed as part of the cost of appeal, where he is successful, the costs of printing the abstract of record, the docket fee and certificate of appeal! 1 R. S. 1889, sec. 2258. (2) The costs of appeal are taxable or retaxable in the appellate court, and this court will entertain a motion for that purpose. Page v. Bettes, 19 Mo. App. 624.

— How. Henry M. Ramey, Judge. Under the pleadings in this cause and Revised Statutes, 1879, sections 4790 and 4791, the ruling of the trial court in sustaining defendant’s demurrer was erroneous, as also was the action of the court in rendering judgment for the defendant. ON REHEARING.

— Hon. J. M. Davis, Judge. (1) We insist that the facts shown gave the school district an easement in and the right to use said well, which could not be taken away nor destroyed at the will of Lindsay. ■ House v. Montgomery, 19 Mo. App. 171; Gibson v'. Mech. Ass'n, 33 Mo. App. 165; Balter». Railroad, 57 Mo. 265; Railroad v. Mitchell, 69 G-a. 114; Railroad v. McLanahan, 59 Pa.

— Hon. Wi. S. Shirk, Special Judge. (1) The court erred in refusing to give the first declaration of law asked by defendant. The undisputed evidence showed that, if defendant so elected, he was to have a well, and that he notified plaintiff that he wanted a well, at lea$t, before plaintiff took out the tubing. The plaintiff, after this notice, took out the tubing and destroyed the well.

— -Hon. Richard ■ ■ . Field, Judge. The judgment is erroneous because the chattel mortgage under which the plaintiffs claim does nob constitute them purchasers for value without notice, under section 4914 of Revised Statutes. First. The section makes no exception in favor of mortgagees. Milling Oo. ©. Turner, 23 Mo. App. 103. The above statute confers rights, gives preferences, and determines priorities, as between the vendor and purchasers from the vendee.

— Hon. Chas. W. Sloan, Judge. (1) A contract executed on both sides cannot be .'repudiated by an infant party thereto without returning the property or consideration received by the infant, if he has it to return, and has not wasted or squandered it. This is the settled rule in this state. Craig v. Yan-Bebber, 100 Mo. 584 ; Baker v. Kennett, 54 Mo. 82-88; JBigley v. Barron, 49 Mo. 103; Kerr v. Bell, 44 Mo. 120 ; Bcotts v. Leonhard, 40 Mo.

— Mon. .Chas. W. Sloan, Judge. “Notice of demand and protest is1 waived” — the waiver proven — plainly meant just what was said, a waiver of notice, but not a waiver of demand, or protest which includes demand, without which, in the absence of presentment and demand of payment, appellant was not bound as indorser of a negotiable promissory note. Jaccard v. Anderson, 37 Mo. 91; 2 Daniels on Neg. Inst., sec. 1083, p. 131; Tiedeman on Com.Paper, sec. 363 ; 2 Daniels on Neg.

— IIon. Gf. D. Burgess, Judge. The motion to affirm the judgment of the justice of the peace should have been sustained.

— Hon. C. H. S. ’ GrOODMAN, Judge. (1) In all actions founded on contract and instituted against several defendants, the plaintiff shall not be nonsuited by reason of his failure to prove that all of the defendants are parties to the contract, but may have judgment against such of them as he shall prove to be parties thereto. R. S. 1889, secs. 2069, 2207, 2387; Qreios v .Lackland,61 Mo.619 ; Finney v. Allen,1 Mo.416.

— Hon. G. D. Burgess, Judge. (1) The plaintiff, as a city of the fourth class, had the power, “to provide for licensing and regulating dramshop and tippling houses, * * * to regulate the sale of liquor under merchants’ license or otherwise within said city, and for one mile from the corporate limits thereof. R. S. 1889, sec. 1589.

— Hon. G. D. Burgess, Judge. (1) The proposition is, if the assured refused to submit to the examination, he cannot recover on the policy. Harris v. Ins. Co., 35 Conn. 310; Bonner v. Ins. Co., 13 Wis. 677 ; Phillips v. Ins. Co., 14 Mo. 226 ;, May on Ins. [2 Ed.] p. 709. (2) We next call .attention of the court to instruction, numbered 2, asked for by the defendant and refused by the court.

— TIow. Gr. D. Burgess, Judge. (1) Before a mother can recover damages sustained by reason of injuries received by her minor child, she must allege in her petition and prove upon the trial’ that, at the time the child received the injuries-complained of, its father was dead, and that she is-entitled to the services and assistance of the minor. The-allegation of the plaintiff, that at the time of the commencement of the action she was a widow, is not sufficient.

— Hon. G. D. Burgess, Judge. x (1) The law is well settled that the purchase of property from one who had no right to sell constitutes a conversion, and the owner of the property can sustain replevin without demand, and the good faith of the buyer is no defense. Wells on Replevin, sec. 365, p. 207 ; Williams v. Merle, 11 Wend. 80; Qilmore v. Wewton, 9 Allen (Mass.) 171; Farley v. Lincoln, 51 N. H. 577.

— How. Henry M. Ramey, Judge. The court eired in refusing to give pthe first instruction asked by defsndants, in the nature of a demurrer to the evidence, for the following reasons: First. The court erred in permitting the plaintiff to prove statements made by the employment agent James. He was the agent of plaintiff and his associates, who paid him for his services in procuring the employment. Second.

— Hon. Silas Woodson, Judge.' The court erred in overruling the motion to quash the information, for the reason that it charged no offense against the laws of the state. The motion to quash goes to all parts of said information. State v. Meek, 70 Mo. 355; State v. Shiflett, 20 Mo. 415; Brut-ton v. State, 4 ■ Ind. 601, 602; Lemon v. State, 4 Ind. 603; United States v. Nelson, 29 Fed. Rep. 202; Kline v. State, 44 Miss. 317. Otherwise no offense is charged.

— Hon, E. L. Edwards, Judge. (1) The plaintiff erroneously combined two inconsistent and contradictory counts for tbe same injury in same petition, and should have been required to elect-upon which he would proceed to trial. Bliss, Code PL,, sec. 122 ; 1 Chitty Pl. 243, 288, 399 ; Sipperly v. Railroad, 9 How. Pr. 83 ; Wood it. Railroad, 58 Mo. 109, 115. Suit cannot be brought under section 2611, Revised Statutes, and a recovery had under section 4428, or under the common law.

— Hon. E. L. Edwards, Judge. (1) Where a principal suffers injury from the negligence of an agent he is entitled to receive such a .sum in damages as will pllace him in as favorable condition as he would have been in had the contract and •duty been fulfilled. 3 Sutherland on Damages, p. 5 ; Meachem on Agency, sec. 506. The measure of damages where one is ousted by a failure to remove an incumbrance is the purchase price. Chinn v. Wagoner, 26 Mo.

— Hon. E. M. Hughes, Judge. ' (1) Tbe court erred in excluding proper and legal evidence offered by interpleader. For the same rea: sons assigned under point number 1, and because the court was bound in all fairness to compel the litigants .to try the cause according to the stipulations — on the issues agreed to in Smith v. Leach, 7 S. W. Rep. (Tex.) 767. By the stipulations the question of the priority of the Ross and Hoagland mortgages were eliminated from the case.

— Hon. Jas. M. Sandusky, Judge. (1) The informer is liable for costs in the actions. In re Green, 40 Mo. App. 491. (2) Suits to recover the statutory penalty for failure to give signals at a crossing are suits which can be joined, as contemplated by section 6224, Revised Statutes, 1889. The State ex rel. v. Railroad, 89 Mo. 571. (3) The defendant’s-rights to have the costs re taxed is conclusively established by the case of Maberry v. Railroad, 83 Mo. 664..

— Hon. James M. Sandusky, Judge. (1) There is a very serious question whether a. check is a “negotiable instrument” under the-statutes of Missouri. In Loewenstein v. Knopf , 2 Mo.

— Hon. John A. Hockaday, Judge. This suit was commenced more than one year, but less than five years, from dismissal of former suit. The main issue presented in this case is an issue of law, and the finding of the same by the t¡rial court is the substance of each of appellant’s assignments of errors. It is whether or not plaintiff’s cause of action was barred by the operation- of section 6784, Revised Statutes, 1889.

<p>Appeal from the Louisiana Court of Common Pleas. Hon. G-. B. Macearlane, Special Judge.</p>

<p>Error to the Scotland Circuit Court. — Hon. Ben E. Turner, Judge.</p> <p>(1) The court erred in overruling defendant’s motion to exclude Thos. Evans as a juror for cause from the panel out of which jury was selected to try cause. R. S.j sec. 6083. (2) The court erred in refusing to require plaintiff to elect upon which count of the petition he would proceed to try the cause. Johnson v. Agricultural Co., 20 Mo. .App. 100 ; Walls v. Oates, 4 Mo. App. 1. (3) The court erred in giving instructions, numbered 1 and 2, on the part of the plaintiff, as they were not warranted by the evidence and the pleadings in the cause. McBeth v. Craddoch, 28 Mo. App. 380; Lay son v. Wilson, 37 Mo. App. 636. • (4) The court erred in giving instruction on its own motion, as it was in conflict with the other instructions given in the cause. Johnson v. Agricultural Co., 20 Mo. App. 100 ; Walls ®. Oates, 4 Mo. App. 1. (5) The court erred in instructing the jury that if they found for plaintiff their verdict should be for the amount the plaintiff paid the defendant on the purchase of the mares; because that was not the measure of damages under the pleadings and the evidence. McBeth v. Craddock, 28 Mo. App. 380 ; Lay son v. Wilson, 37 Mo. App. 636.</p>

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

<p>1. Administration: power op probate court to issue execution on demands allowed by it. Although the statute (R. S. 1889, sec. 228) provides that the clerk of the probate court shall issue execution on a demand allowed and ordered to be paid by that court, if the executor or administrator shall fail, upon demand, to comply with such order of payment, the probate court is not thereby precluded from ordering the issue of such execution; the process of every court- is under its own control.</p> <p>3. -: DISPUTED ASSIGNMENT OF LEGACY ! JURISDICTION OF PROBATE court : remedy. The probate court has no power to determine the validity of an assignment of a legacy when the same- is disputed, and can only order a legacy to be paid to the assignee thereof when the legatee consents thereto. If the executor, by reason of the claim of an assignee, cannot in safety pay the legatee, and the legatee objects to payment to the assignee, the executor or administrator may have the amount of the legacy impounded or the collection thereof restrained in a court of competent jurisdiction.</p>

Louis City Circuit Court. — Hon Lekoy B. Valliant, Judge. Defendant Is not liable for interest on his unpaid subscription of stock, for two reasons ; namely, because no interest was demanded in the motion, and because the statute providing for this proceeding to recover the unpaid subscription of a stockholder authorizes the recovery only of the unpaid subscription of stock. Ashby v. Shaw, 82 Mo. 76; Shockey v. Fisher, 21 Mo. App. 551; Hawkins ». Clenn, 131 U. S. 319.

<p>Appeal from the St Louis City Circuit Cotort — Hok. Jacob Kleibt, Judge.</p>

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. (1) Under tbe enactment of 1891, appellants bave an undoubted right to appeal from the judgment of the trial court in this case, sustaining respondent’s motion for a new trial, and this court is now invested with the jurisdiction to determine the propriety of the action of the circuit court in granting to respondent a new trial in this case. Laws of Mo. 1891, p. 70.

<p>Appeal from the St. Louis City Circuit Court. — Rost. Leeoy B. Yalliant, Judge.</p>

<p>Appeal from the St. Louis City Circuit Court. — IIon. Daniel Dillon, Judge.</p> <p>(1) When the sale from Niemann to Ruppenthal was avoided by Niemann’s creditors, Niemann became invested with all his exemption rights. Thompson on Homestead & Exemptions, secs. 409, 410; Stone v. Spencer, 77 Mo. 356 ; Paddock v. Lance, 94 Mo. 284; (2) Inasmuch as Nieman could hold exempt all the property he owned under our statutes there could be no fraudulent conveyance. Paddock v. Lance, 94 Mo. 284.</p> <p>(1) The law in this case has been fully settled by the former decision in favor of the respondents, and the additional evidence of appellant and the bill of sale only serves to weaken appellant’s case. (2) The fraud being established by the judgment of the justice in the attachment case, appellant cannot avoid it for the purpose of claiming the statutory exemption, especially not'after the levy was made and he denied ownership. Alt v. Bank, 9 Mó. App. 91; Eulage ». Schuler, 7 Mo. App. 250; Weinrichv. Koelling, 21' Mo. App. 135.</p>

<p>The Evidence in this suit is considered and held,, not to establish a defense to the cause of action sued upon, which was a note of the maker.</p>

<p>Landlord and Tenant: notice to quit. A notice from a tenant to his landlord that he will terminate the tenancy and surrender the possession of the rented premises “ about January 10 or 15, 1890,” does not, even when the landlord accepts and acts on the notice, and is willing to waive any right of objection thereto, operate as a termination of the tenancy on January 15,1890, so as to subject the tenant under the statute ( R. S. 1889, sec. 6365) to double rent from that date for holding over subsequently thereto.</p>

<p>Justices’ Courts: amendment on appeal. A total substitution of parties plaintiff is not permissible in the circuit court on the appeal of a cause instituted before a justice, when the party sought to be substituted as plaintiff does not claim under the original plaintiff, since such an amendment amounts to a change of the cause of action. And where such an action is instituted in the name of A as agent this rule prohibits the substitution of the principal of A as the plaintiff in the cause.</p>

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

<p>Real-Estate Agents: rule as to compensation where there are several agents. If property is placed in the hands of a real-estate agent for sale, and a sale is brought about through his exertions, he is entitled to his commissions even though the negotiations are conducted and the sale concluded with the purchase through another agent of the principal. When the same property is placed in the hands of several real-estate agents, the commission, in the absence of a distinct contract to the contrary, belongs to the agent whose exertions are the procuring cause of the sale, and not to the one who first consummates the sale.</p>

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. (1) Under the evidence in this case appellant was entitled to a peremptory instruction directing the jury to find in its favor, and the court erred in giving a peremptory instruction to find for defendant.

— Hon. Ben. E. Turner, Judge. The admission of Carder, deceased, was evidence of the fact in issue. However weak it may have been, it was for the jury to decide upon its weight and sufficiency, and not the court. The instruction of the court usurped the province and duty of the jury. The evidence was sufficient to authorize a verdict and judgment for plaintiff. The case should have gone to the jury. Such an instruction can be given only when there is no evidence.

— Hon. E. M. Hughes,. Judge. (1) It is insisted that there is no evidence of fraud ' in this transaction. There is no proof that the firm was insolvent at the time of the execution of the notes to McCune and Wigginton. The note to McCune was in part for the stock of goods with which Edwards was doing business at the time that E. B. Wigginton became a partner.

<p>Appeal from the St. Louis City Circuit Court. — 'Ros. Leeoy B. Valliant, Judge. -</p>

— IIon. E. M. Hughes, Judge. (1) Appellants’ objection to evidence cannot be held available here, for the reason that no specific .grounds of exceptions were assigned and presented at the trial, nor are there any such objections set out in the bill of exceptions. Slate n. Baker, 36 Mo. App. 58 ; Babb n. Curators, 40 Mo. App. 173 ; Peek v Chouteau, 91 Mo. 138 ; Shelton v. Diorham, 76 Mo. 434 ; Allen n. Mansfield, 82 Mo. 688.

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

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) A policy of life insurance issued to a person on bis own life for bis benefit, or to a bona fide beneficiary and valid in bis bands, will not lose its validity or obligatory force by reason of its being assigned to one wbo bas no insurable interest in the life of the assured. McFarland v. Creath, 35 Mo. App. 112; Ins. Co. v. Armstrong, 117 U. S. 597; Balter v. Young, 47 Mo. 453; Ins.

Louis City Circuit Court.-Alois. Jacob Klein, Judge. (1) The defendants McCabe and McKeag were not entitled, under the evidence in this case, to the assessment of any damages upon the dissolution of the injunction, either as counsel fees or otherwise. Buford v. Keokuk Northern Line, 3 Mo. App. 159; St. Louis v. Alexander, 23 Mo. 483 ; Bircher v. Parker, 40 Mo. 118 ; IJhrig v. St. Louis, 47 Mo. 528.

<p>1. Accountability of Fiduciary Agent. Where money is placed in the hands of a fiduciary to be used for a certain purpose, and tins purpose fails and the money is not so used, it is the duty of the fiduciary to restore.it to the person from whom he has thus obtained it, and an action for its recovery can be maintained against him by such person.</p> <p>2. -: pleading. Such recovery can be had though the plaintiff, besides alleging the facts authorizing it, also pleads that the money was obtained from him for such purpose through fraudulent misrepresentations by such fiduciary, and fails to sustain such allegation of fraud: the latter allegation may in such case be rejected as surplusage.</p>

Louis City Circuit Court. — How. James E. Withrow, Judge. The defendant had a right to print upon his cards and to advertise the fact that he was formerly connected with the New York Dental Rooms, provided he did not do so in a manner calculated to deceive the public. Clenny v. Smith, 13 Law Times, p. 11, et seq..; Boswell v. Mathie, 11 Session Oases (4 Session) 1072-1075; Coates v. Holbrook, 2 Sanf.

<p>1. Construction of a Will. A testator who died leaving surviving him a soil, a daughter and two grandchildren (the children of a deceased child) made certain devises, bequests and provisions for each class, and directed the residue of his property to be collected, sold and divided equally between the grandchildren on the one part and the family of the son on the other, and that the latter share should be placed in the hands of his son-in-law with certain discretion in regard to the trust fund. Added to these directions, and as a part thereof, the will however contained the proviso, “ that, if the moneys arising from the source last mentioned ” should be sufficient to make all the provisions in favor of the son’s family exceed $8,000, then the remainder should be divided in equal shares between said son, daughter and grandchildren per stirpes. Held, Rohbauer, P. J., dissenting, that these provisions, whether considered alone or in connection with the remainder of the will, only intended that, if the one-half given to the family of the son should exceed said amount, then the excess of that one-lialf should be divided between all the heirs.</p> <p>3. - — : admissibility OF extrinsic evidence. The testimony of a witness tended to show what valuations the testator had placed upon the property disposed of by the will, and that the will had been drawn so as to give each of the three classes of heirs $3,000, and then divide the surplus equally between these classes. Held by Bohbauer, P. J., dissenting, that this testimony was admissible, and could be considered in the construction of the will, owing to the obscurity in the meaning of said proviso.</p> <p>8. Jurisdietion of Probate Courts: construction of wills. Held per auriam, that the jurisdiction of probate courts in respect to the settlement and distribution of estates necessarily includes the power, in the first instance, to construe the will of the person whose estate is being administered upon.</p>

— Hon. Ben. E. Turner, Judge. (1) The evidence shows that the alleged injury was caused by surface water flowing through a natural drain or ravine passing from the north of appellant’s railroad, and across its track, to the south edge of its right of wray, and entering the leased ground in question in its natural course or direction to another drain or ditch in the bottom leading on to the main channel of the river, and is, therefore, damnum absque injuria.

<p>1. Benefits : liability of grand lodge. Certain lodges formed for benevolent purposes organized a grand lodge, which was composed of their representatives and was incorporated. The laws of the order provided for the payment of a certain fund by the treasurer of the grand lodge to designated relatives of deceased members, and expressly stated that all the lodges jointly bound themselves to pay the fund. The grand lodge made assessments against the subordinate lodges, which its treasurer collected from these lodges, and out of which he paid this fund to the persons entitled thereto ; but the grand lodge had nothing to do with the initiation, retention or expulsion of the members of these lodges, and kept no accounts with these members. Held, Thompson, J., dissenting, that the aforesaid provisions did not establish a promise on the part of the grand lodge, but only a joint promise by the subordinate lodges to pay this fund.</p> <p>2. Corporation: ultra vires : estoppel. Held, arguendo, that a corporation, which has received the benefits accruing to it under a contract made by it, is, in the absence of a statute prohibiting it from exercising the powers thus assumed by it or a public policy working such prohibition, estopped from alleging that the contract is ultra vires, and that this is certainly the case, unless it restores to the other contracting party the benefits received by it, and especially when it receives these benefits with the knowledge of its want of a contracting power.</p>

<p>Appeal to the St. Louis City Circuit Court. — Hon. Leroy B. Vallí ant, Judge.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Equity will compel corporation to transfer .stock when it has no market value. Cushman v. Mfg. Co., 53 How. Pr. 60; s. c., 76 N. Y. 365. (2) The courts of this state have jurisdiction to grant the relief asked. For jurisdictional purposes the residence of a corporation is at its chief place of business.

— Hon.' Silas Woodson, Judge. (1) The general words, “or other place of business,” refer only to such places of business as are ejusdem generis with stores and shops. The theatrical business is not of the same kind as the business of merchandising, which is conducted in stores and shops, and, consequently, the theater is not the same kind of a place of business as the store or shop. Sutherland on Stat.

— Hon. Chas. W. Sloan, Judge. (1) A party cannot count upon one cause of action and recover upon an entirely different one. Link v. Vaughn, 17 Mo. 585 ; Clements v. Yeats, 69 Mo. 623 ; Summer v. Rogers, 90 Mo. 324 ; Reed v. Bott, 100 Mo. 62; Newham n. Kenton, 79 Mo. 382; Baldwin r>. Whaley, 78 Mo. 186; Ross t>. Ross, 81 Mo. 184; Buffington v. Railroad, 64 Mo. 246.

— Hon. O. H. S. Goodman, Judge. (1) The answer in this case attempts to set up an equitable defense, and the plaintiffs contend that there is no legal or equitable defense in the answer. In support of this contention the plaintiffs rely upon the statute, section 252, page 167, Revised Statutes, 1889. Now it is admitted that Arimilda Crider was a nonresident, and was not in a position to receive her shai’e in person from the executor.

— Hon. Chas. W. Sloan, Judge. Statement by tire court. This is an action to enforce a mechanics’ lien. The petition contains two counts — the first is based on a contract in writing, whereby the plaintiff agreed to furnish and place same in a certain hotel building then being erected, a gas machine and the piping for the purpose of lighting said building, and to run a line of fuel piping and to furnish asbestos grates for heating purposes.

— Hon. Gr. L>. Burgess, Judge. (1) We submit that, where the petition counts on a malfeasance, an instruction which permits a recovery, .although the thing complained of was done under lawful authority, is fatal error. (2) Whether or not the construction of the embankment “impaired the usefulness of the street,” is wholly immaterial to the merits •of this action. Churchill v. St. Louis, 97 Mo- 85 ; Canman v. City of St. Louis, 97 Mo. 92.

<p>Appeal from the Buchanan Circuit Court. — Hon. J os. P. Grubb, Judge.</p>

<p>A Fair Association about to open its exposition found itself short of necessary funds. To raise these, it agreed to set aside seventy-five percent, of its gate fees to indemnify its accommodation indorsers, some of whom were members of its directory. Held,, such transaction did not even tend to prove a fraudulent transfer of its property so as to hinder and delay its creditors and a demurrer to the evidence should have been sustained.</p>

— Hon. O. H. S. Goodman, Judge. (1) There is another rule equally as well settled that an officer is bound to know the law, and when a court or tribunal issues a process to an officer he is bound to inquire into the authority of that court or tribunal to issue that particular process, and he is liable for executing it when it is issued by a court having no jurisdiction. State v. Hacldett, 37 Mo. 285. And he is bound to know the jurisdiction of the court issuing the writ.

— Hok. O. L. Russell, Special Judge. (1) Revised Statutes, section 4166, provide that when the order of removal shall be made the clerk shall make out and transmit a full transcript of the record and proceedings, and that this shall be duly certified, etc; In this case the clerk wholly fails to mention the record in his certificate. The indictment is a part of the record. Hence, there was nothing in the Polk circuit court that defendant could be tried upon.

— Hon. M. Gr. McG-regor, Judge. (1) The court committed error in permitting the plaintiff to amend his complaint in the circuit court by-adding to said complaint an item that was not asked for before the justice of the peace. R. S. 18S9, sec. 6347.

— Hon. J. M. Davis, Judge. (1) The court committed error in ruling upon the •introduction of evidence as follows: In permitting, first, plaintiff to testify to the value of the goods; ■second, in not requiring plaintiff to answer : “ Q. Were you ever indicted in Daviess county for hog-stealing? ” “Q. Were you ever charged (before a court) with hog-stealing in Daviess county?” This was error.

— Hon. D. A. DeAkmond, Judge. (1) That defendants, by written order, bought of plaintiff the apparatus, to be received and paid for by them in a certain agreed way. (2) That the goods were delivered to the transportation company in Boston, consigned to defendants in Clinton, Missouri. (8) That they refused to receive them until the terms of payment were modified. (4) That, upon the written proposition of defendants, accepted by plaintiff, the terms of payment were modified.

— Hon. David A. DeArmond, Judge. (1) The demurrer to the evidence ought to have been sustained. There was no evidence as to any damages except of a temporary character, and no amount therefor had been stated. Smith o. Railroad, 98 Mo. 24. (2) The court admitted incompetent evidence over the objections of the defendant.

Bates Circuit Court. — Hon. Dr A. DeAbmond, Judge. (1) “Instructions'must be confined to the case-made by the evidence within the issues defined by the pleadings.” 2 Thomp. on .Trials, sec. 2309 ; White v. Chang,-20 Mo. App. 389; Waddinghamv. Eutell, 92' Mo. 528 ; Lester v. Railroad, 60 Mo. 265.

— Hon. D. A. JDeArmond, Judge. (1) Jurisdiction cannot be obtained before a justice of tbe peace by dividing a claim, and bringing several suits at tlie same time for parts of the same claim. If justice had no jurisdiction of the entire cause of action, he could have none of any of the three parts into which it was divided by plaintiffs ; because a single cause of action cannot be severed so as to confer jurisdiction on justice.

— Hon. D. A. DeArmond, Judge. (1) The first instruction was, therefore, calculated to mislead and confuse the jury, and is, therefore, erroneous. Donahoe v. Railroad, 83 Mo. 560; Creer r. Parker, 85 Mo. 107; State of Missouri v. Bailey, 57 Mo. 131.

— Hon. James N. Lay, Judge. (1) The evidence of the proposed settlement and compromise should not have been admitted. Smith v. Shell, 82 Mo. 215. (2) By the refusal to give appellant’s second instruction “the precise and especial ground of defense (of tender and acceptance) was withdrawn from the jury, thrown into the back-ground and apparently neglected altogether.” Sawyer v. Railroad, 87 Mo. 240.

— Hon. D. P.‘ Stratton, Judge. ■(1) The first question in this case is, whether a 'trustee under the deeds of trust used in this state can ■employ an attorney to draw up the notice' of sale provided therein, and if he does so employ an attorney, whether he is entitled to be reimbursed out of the proceeds received at the Sale for the amount he paid said attorney for drawing up said notice.

— Hon. D. P. Stratton, Judge. (1) The instruction requires (or should require) the jury to believe two facts: First, that defendant injured plaintiff by killing his animal; second, that ■defendant was guilty of negligence in so doing. It says in substance: “If you believe plaintiff’s cow was ■killed, etc., etc. (first fact); and if you shall further believe a bell was not rung and a whistle not sounded •(second fact), you will find for the plaintiff,” which is not the law. .

— Hon. D. P. Stratton, Judge. (1) This suit, as originally instituted, Vas a suit in equity for the settlement of partnership accounts; and it could not be maintained without proof that the parties were partners as alleged in the petition. R. S. 1889, sec. 2238; Clements v. Yeates, 69 Mo. 623 ; Ledbo v. Renshaw, 61 Mo. 292; Murphy v. Bedford, 18 Mo. App. 283.

— Hon. Andrew Ellison, Judge. (1) The petition does not state a cause of action. The condition of the instrument sued on is that the •principal shall account to the partnership for all moneys used by the partnership in the lumber business, and that is all. The sureties are liable, if at all, only for any money of the firm that R. E. Stone might embezzle or convert to his own use and not account for, and only according to the letter of their contract.

— Kon. Andrew Ellison, Judge. Where the owner of a farm innocently but untruly states the quantity of land contained therein, and a purchaser relying thereon enters into a contract and takes a deed, and subsequently discovers that the quantity is less than stated, he is entitled to compensation. This is the prevailing rule even though the words “ more or less” are added.

— Hon. Chas. H. S. Goodman, Judge. Under the agreed statement of facts there could be no recovery in an action for negligence at common law. (1) The cow was killed within the limits of the city of Chillicothe, so that, even if this were not a common-law action, no question of the duty of the defendant to-fence its track could arise. (2) No question can arise in respect to a violation of the bell-ringing statute.

<p>Appeal from the Cape Girardeau Circuit Court. — Hon. H. C. O’Bryan, Judge.</p>

<p>1. Practice, Appellate: res adjudicata. A question determined upon the first appeal of a cause is not open to reargument upon a second appeal; this is all the more so when the first appeal was determined by the supreme court and the second is taken to this court.</p> <p>2. Contracts : forfeiture. A provision in a contract of subscription to a fund, that non-payment of the sum subscribed should work a forfeiture of the benefits to which the subscription entitled the subscriber, but should not exonerate the subscriber from liability for his subscription, is valid ; and the subscription is enforceable, notwithstanding that the subscriber is denied such benefits owing to such non-payment- on his part.</p> <p>3. Parties: trustee of an express trust. When the title to a fund is vested in a person for the benefit of others, he is the trustee of an express trust, and can maintain a suit for an amount due him as such trustee without joining those beneficially interested in the fund.</p>

<p>1. Criminal Law: unlawful sales of liquor made by druggists : information. An information for the sale of liquor, drawn under the statute appertaining to the sales of liquors by druggists, must charge that the liquor was not sold upon the written prescription of á physician, and must name the .person to whom the liquor was sold ; otherwise it is insufficient.</p> <p>2. --:--: conviction under wrong law. A conviction was obtained under the statute appertaining to the sales of liquors by druggists, but under an information which was insufficient for that purpose, and the jury were accordingly instructed that the minimum authorized fine was $100. Held, that the conviction could not be sustained under the dramshop law, even if the information and evidence were sufficient therefor, since that law authorized a minimum punishment of $40.</p>

<p>1. Killing of Sheep by Dogs: nature of action : pleading. The statute (R. S. 1889, sec. 4512), authorizing the recovery of damages for the killing of sheep by a dog, does not create a new statutory cause of action, but merely changes the right of recovery existing at common law by dispensing with the necessity of proof of a scienter on the part of the defendant of the vicious character of the dog; Accordingly, the allegation of such scienter in the statement of a cause of action for such damages may be treated as mere surplusage, and a recovery will be authorized under the statute in the absence of evidence in support of it.</p> <p>2. -: construction of statute. A person, who knowingly harbors or permits his servant to keep a dog on his premises, is a keeper of the dog within the purview of the statute.</p> <p>3. Instructions: non-frejudicial error. While the failure in instructions to restrict the right of recovery to the amount sued for is technical error, it is not prejudicial when the verdict does not exceed that amount, and, therefore, will not warrant the reversal of the judgment on appeal.</p> <p>4. Practice, Appellate: excessive verdict. If the motion for now trial fails to allege as one of its grounds that the verdict is excessive, the matter is not the subject of review in this court.</p>

— Hon. Maurice Cramer, Judge. (1) A party to a suit'is a competent witness. R. S. 1889, sec. 8918; McCormick v. Hickey, 24 Mo; App. 362. (2) Any party to a suit pending in any court in this state may obtain the deposition of any witness, to be used in such suit conditionally. R. S. 1889, sec. 4434. (3) Depositions may be read, when the witness resides in county other than that where the case is tried. R. S. 1889, sec. 4461.

<p>Bivision Fence : right oe person erecting same to compensation EROM adjoining owner. The statute (R. S. 1889, sec. 5039 ; which authorizes one, who erects a division fence between his land and that adjoining it, to recover one-half of the awarded value of the fence from the owner of such adjoining land, applies only when the adjoining land is inclosed, and the division fence constitutes a part of the inclosure.</p>

<p>1. Praetiee, Trial: instructions. The instructions given by the trial court, though the cause is tried by the court sitting as a jury, must be predicated upon hypothetical statements of the contested facts ; accordingly, . an absolute instruction that the plaintiff is entitled to recover is erroneous, when the facts are in dispute.</p> <p>•2. Railroads: authority of station agent. In the absence of evidence of greater authority, the station agent of a railway company cannot bind his company to carry goods beyond the terminus of its line.</p>

Louis City Circuit Court. — IIon. Daniel Dillon, Judge. (1) The pleadings and testimony show both a sale and delivery of the property to Blinker alias Walliman. The title passed to him. Before Loeffel is entitled to the property he must rescind the sale and revest the title to the property in himself. Benj. on Sales [ Bennett’s Ed. 1888] sec. 433; Cahn ¶. Reid, 18 Mo. App. 115, 123, 124, 125, 126; Donaldson v. Far-well, 3 Otto, 631.

<p>1. Evidence: clerk’s indorsement of file-mark on papers. The indorsement made by the clerk on a bill of exceptions, of the fact and date of the filing of the paper is competent evidence of those matters.</p> <p>2. --: prejudicial error in the admission of insufficient evidence. The admission of testimony which does not tend to establish an alleged oral agreement, varying a prior agreement in writihg which is sued upon, but still tends to lead the minds of the jurors to the.conclusion that the rights of the parties are not to be governed by the written contract, is manifest error.</p> <p>’ 8. = — : impressions of a witness. Testimony by a witness in regard to his impressions is not competent evidence, unless it appears that what he terms his impression is really a recollection,</p> <p>4. Witnesses, Examination of: waiver of objection. An objection to the admission of incompetent testimony is not waived by the cross-examination of the witness in regard to matter objected to.</p>

<p>Appeal from the Hannibal Court of Common Pleas. Hon. Thomas H. Bacon, Judge.</p>

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

<p>1. Criminal Law: exhibition oe deadly weapons : information. When a statute contains exceptions or provisos in distinct clauses or sections, it is not necessary to negative such exceptions or provisos in an information or indictment drawn under it. This rule is applied to the provisos of sections 3502 and 3503 of the Revised Statutes of 1889, which appertain to the carrying and exhibition of deadly weapons, the former defining the conditions of the offense, and the latter naming the officers exempted from the operation of the law.</p> <p>2. -:---. To constitute the exhibition of a deadly weapon íd a rude, angry or threatening manner in-the presence of one or more persons a criminal offense under said- section 3502, it is not necessary that the exhibition should occur at any public place or assemblage ; the exhibition may occur on the defendant’s own premises.</p> <p>3. ---:---: trespassers : instructions. One instruction authorized a conviction under said section, if the defendant, without adequate provocation or excuse, wilfully exhibited a gun in a rude, angry or threatening manner to persons who were peaceably driving hogs over his unfenced woodland; another instruction was to the effect that, if these persons were trespassers or intruders on the defendant’s land, then the defendant had the right to resort to such force or provide such means, not amounting to the infliction of great bodily harm, as were apparently and reasonably necessary under the circumstances to expel them from, the premises. Held, that these instructions were not erroneous.</p> <p>4. --: instructions: comments on evidence. An instruction which singles out a particular fact or piece of evidence, and tells the jury that such fact is entitled to much or little weight in determining an issue in the case, amounts to a comment on the evidence, and is, therefore, erroneous. But, where the effect of the evidence is a conclusion of law, it is the duty of the court to so instruct.</p>

— I-Iow. J. EL Slover, Judge. (1) The paper on which this suit is based, and which was admitted in evidence, is no lease, because it was never signed by the one mentioned as lessor, and it was error in -the court to admit it in evidence. Clemens v. Broomfield, 19 Mo. 118; Hyatt v.-Church, 10 Mo. App. 582 ; Gear on Landlord & Tenant, sec. 77, and cases cited.

— Hon. Cyrus A. Anthony, Judge. (1) In the execution of such writ a person in possession of the premises at the commencement of the suit, and not a party thereto is dispossessed and possession given to the plaintiff, and, if upon the removal of the force the person dispossessed returns to the possession, the plaintiff will not thereby acquire such a possession by the execution of the writ as will entitle him to sustain an action of unlawful detainer against the person so…

— Hon. Chas. H. S. Goodman, Judge. (1) It was error to permit plaintiff to file reply other than general denial after the jury was sworn and the pleadings read, no reply to the new matter of the answer having been filed. Ennis v. Hogan, 47 Mo. 513; R. S. 1889, secs. 2053, 2211. (2) The court erred in giving plaintiff’s instruction as asked.

— Hon. Chas. H. S. GtCodman, Judge. (1) As all the testimony clearly tended to show that the animals came upon the railroad track in the public highway, and were there struck by the train, the court below should have directed the, jury to find for the defendant. Sullivan v. Railroad, 72 Mo. 195 Ehretv. Railroad, 20 Mo. App. 251; Music v. Railroad, 57 Mo. 134; Moore v. Railroad, 28 Mo. App. 622; Henderson, v. Railroad, 36 Mo. App. 109.

<p>AppealfromtheNodaway Circuit Court. — Hon. Cyetjs A. Anthony, Judge.</p>

Appeal f rom the JaeJcson Circuit Court. — Hon. James Gibson, Judge. The evidence shows that the note was not indorsed By Reese to Collins, and by Collins to plaintiff, as alleged-in the petition, but that after the execution and delivery of the note by defendant the name of Collins was placed thereon as security or maker. One who places his name on the back of a note of which he is neither payee nor indorsee is prima facie maker.

<p>•Corporations : ultra vires : collateral attack. Though the act of the defendant corporation in this case in executing a lease, under circumstances tending to show it was doing so as security for another, may be ultra vires, yet it does not belong to that class of unauthorized acts of a trading corporation which can be avoided in a collateral way, as by contesting the validity of a fair contract entered into bona fide. (Following Welsh v. Ferd Heim, Brewing Co., ante, p. 608.)</p>

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

Louis County Circuit Court. Hon. W. W. Edwards, Judge. An appeal should have been allowed by the county court in this case, as the circuit court certainly has the power of review in such matters. R. S. 1889, secs. 3434, 3318, 6328; In re Webster, 36 Mo. App. 355; Moore x. Bailey, 8 Mo. App, 157. The act of the county court in granting the license to Edward Bartold was judicial, and an appeal lies. State ex rel. x. Heege, 37 Mo.

<p>Criminal Law : information. A prosecuting attorney may file an information for an offense cognizable by a justice of the peace , upon his information and belief, however acquired, and need not verify the same.</p>

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

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

<p>Appeal from the Howell Circuit Court. — IIow. W. H. Evans, Judge.</p>

The respondent was the owner of the property in question, within the meaning of this section, on the first day of June, 1882, and the appellant was not liable for the taxes which became a lien at that date. The taxes become a lien from the time of the assessment, which under the present law is the first day of June of each year. R. S. 1889, secs. 7569, 7552; Anderson v. Holland, 40 Mo. 600; Blossom v. Yan Court, 34 Mo. 390 ; McLarcer v. 8/ielbe, 45 Mo. 130.

<p>Appeal from the Greene Circuit■ Court. — How. W. 3>. Hubbard, Judge.</p>

— Hon. H. ,C. O’Bryan, Judge. (1) A judgment of conviction in cases of contempt not committed in the immediate view and presence of the court is subject to review on appeal or writ of error. Freeman, Judgments [2Ed.] sec. 137; Matter of Greene Co. v. Rose, 38 Mo. 390; Meyers v. State, 22 N. E. Rep. (Ohio) 43; Lester v. People, 23 N. E. Rep. (111.) 387; In re Beaton, 11 S. E. Rep. (N. C.) 244; State exrel. v. District Court, 42 N. W. Rep.o(Minn.) 598; Birdv-. Gilbert, 19 Pac.