Volume 49 — Missouri Appeal Reports

<p>Practice, Appellate: matters not in the bill op exceptions. Where matters, such as improper remarks of counsel at the argument, and affidavits in support of the motion for a new trial, 'do not appear in the hill of exceptions, the appellate court cannot notice them.</p>

— Hon. James M. Sandusky, Judge. Plaintiff must allege in her petition that she is a resident of the county where suit is brought, and be a resident of the county in order to give the court juris diction. R. S. 1889, sec. 4501; Pate v. Pate, 6 Mo. App. 49; Golev. Cole, 3 Mo. App. 571. The petition in this case does not state plaintiff was a resident of Ray county, where suit was brought.

— Hon. James M. Sandusky, Judge. It is contended that, because plaintiff did not “stop and look and listen,” he cannot recover in this case. The following are some of the cases in this state which are relied on for that doctrine: Fletcher v. Railroad, 64 Mo. 484; Harlan v. Railroad, 65 Mo. 22; Heme v. 'Railroad, 71 Mo. 636; Rwrl v. Railroad, 72 Mo. 168; Turner v. Railroad, 74 Mo. 602; Hixson v. Railroad, 80 Mo. 335; Donohue v. Railroad, 91 Mo. 357, and other ■cases.

— Hon. E. M. Hughes, Judge. A general warranty of soundness, as a rule, will not be held to include patent defects, known' to the buyer, but where such defect is observed by the buyer, and the soundness of the animal questioned, as in this case, and the seller expressly warrants that the apparently defective marks are sound, as in this case, and thereby misleads the buyer and induces the sale, the seller is held on such express warranty.

— Hon. E. M. Hughes, Judge. (1) Tbe provision, requiring plaintiff to keep a set of books in an iron safe, may be waived by tbe company. Bernard v. Ins. Co., 38 Mo. App. 113; Stavinow v. Ins: Co., 43 Mo. App. 517; Ins. Co. v. Stone, 42 Mo. App. 383. (2) Defendant’s agents bad knowledge, tbat plaintiff bad no iron safe. Thomas v. Ins. Co., 20 Mo. App. 150; Roberts v. Ins. Co., 26 Mo. App. 92; Parks v. Ins. Co., 26 Mo. App. 511; Travis v. Ins. Co., 32 Mo.

— Hon. E. M. Hughes, Judge. (1) Permitting section 42, chapter 11, of the city ordinances to be read to the jury was error, because read with the next section-43, and showed conclusively that it has no sort of application to holes in the sidewalks. And no ordinances were pleaded even in substance. City of Kcmsas v. Johnson, 78 Mo. 661.

— Hon. John A. Hockaday, Judge/ The court committed manifest error in refusing instruction, numbered 8. It enunciated a proposition of law which, if correct, was decisive of this case, and entitled plaintiff to a judgment..

— Hon. John A. Hoceaday, Judge. (1) The transaction constituted a sale, and was not a bailment. Coleman v. Lipscomb, 18 Mo. App.’ 443, and authorities there cited; 2 Parsons on Contracts [7 Ed.] p. 133, note 5. (2) In order to do away with the well-established rule, which makes this transaction a sale and renders the defendant liable, the trial court holds that the defendant must show two things: First.

<p>Appeal from the Nodaway Circuit Court. — Hon. Cyrus A. Anthony, Judge.</p> <p>(1) B. S. 1889, sec. 8161; 2 Jones on Mortgages "[3 Ed.] sec. 1631; vol. 1, sec. 727; 3 Bandolph on Commercial Paper, sec. 1417;. Trustees v. Wheeler, 61N. Y. 88; Howard v. Gresham, 27 Q-a. 347; 1 Jones on Mortgages [3 Ed.] sec. 604; McCabe 'v. Farnsworth, 27 Mich. 52; Bank v. Bynwm, 84 N. C. 21; Hubbard v. Turner, 2 McLean, 519; Jones v. Smith, 22 Mich. 360; Sharts v. Await, 73 Ind. 304; 2 Herman on Estoppel, sec. 914; McClurg v. Phillips, 57 Mo. 214; Anderson v. Baumgartner, 27 Mo. 80; Hughes v. McAlister, 15 Mo. 296; Lee v. Turner, 89 Mo. 489; Neuhojfv. O’Reilly, 93 Mo. 164; Bank v. Bank, 71 Mo. 195; Turner v. Hoyle, 95 Mo. 337; Anderson v. Bank, 14 Iowa, 544; Letvis v. Kirk, 28 Kan. 497; 1 Jones on Mortgages [3 Ed.] sec. 492; 2 Pomeroy on Equity Jurisprudence, sec. 794. (2) In conclusion, I "wish to refer especially to the case of Rice v. McFarland, 34 Mo. App. 404. While what is said in the opinion in that case does not cover all of the questions raised in this, it must be said that it is opposed to some of the propositions herein submitted. If there is a single authority in the states, going as far as that opinion, I have not been able to find it. Certainly none snch are cited. Fdgerton v. lotmg, 43 111. 464, is referred to, but the title relied on there to defeat the mortgage was founded on an execution sale. Moreover, the note was negotiable, and assigned by indorsement, for value, before maturity. No negligence was chargeable to the assignee for failing to give notice of the .assignment. No negligence of the assignee enabled his assignor (the mortgagee) to practice deception on the mortgagor, and get the title away from him. Such, and more, are the facts in this case; and while the equities were not so persuasive in Bice v. McFarland, I think they were sufficient to have justified a different opinion. However that may be, the Illinois case, in so far as it bears the slightest analogy to Bice v. McFarland, was overruled by the same court in the case of Ogle v. Turpin, 102 111. 148. ,</p> <p>(1) Appellant insists that Craig was, to some ■extent, respondents’ agent, simply because he sent interest to them, to be credited upon the note. But if our agent he couldn’t receive payment of our debt in land from Hall to Seals, nor in anything but money (even if he had the note in his possession, which he ■didn’t). Wheeler <fc Wilson v. Given, 65 Mo. 89; Smith v. Johnson, 71 Mo.' 382; Martin v. United States,. 15 Am. Dee. 129-133; Graham v. Savings Inst., 46 Mo. 186; 2 Daniels on Negotiable Instruments [2 Ed.] sec. 1245. (2) The question in the ease, “Did our deed of trust merge into Craig’s after-acquired title received from Hall? We say not. Equity very properly steps in to prevent a merger where the merger would operate to carry into' effect a wrong and a fraud. The doctrine of set-off (R. S. 1889, sec. 8161) has no application in this suit. The fact that the title to the same land after-wards, and after he had assigned the note, was lodged in Craig (the former title conferred upon him by the deed of trust having been assigned to us), would not merge into his after-acquired title, nor be, in any way, affected by it. 1 Jones on Mortgages [3Ed.] sec. 872; Collins v. Stocking, 98 Mo. 290; Pratt v. Bank, 33 Am. Dec. 201. (3) Craig, the payee of the note, assigned it to us, January 15, 1886, and attempted to release the deed of trust on the margin of the record, without knowledge or consent of, or any authority from, respondents, on July 27, 1889, which he could not do, not then being the beneficiary, negotiable or nonnegotiable, and our statutes require no notice or recording of an assignment. R. S. 1889, sec. 2390; Bice v. McFarland, 34 Mo. App. 404; Bankv. Grewe, 84 Mo. 478. ■ And the deed of trust lien is even more sacred or better guarded than the debt itself. Lee v. Clark, 89 Mo. 553-9; Hagerman v. Sutton, 91 Mo. 520; 1 Jones on Mortgages [3 Ed.] sec. 814. (4) All the antagonistic parties in this suit are estopped by the fact that they “all knew from examination of the records .on July. 27, 1889 (before plaintiff got any title to any of this land), ‘that our deed of trust stood unsatisfied on the record,’” and the record showed when all these after loans were made, and plaintiff was bound by the records to know that Hall had deeded the land back to Craig and to ascertain whether a merger had taken place. Has emitter v. Kirchoffer, 79 Mo. 242, and authorities there cited; Taylor v. Fox, 16 Mo. App. 527.</p>

— Hon. A. M. Woodson, Judge. The same facts were before this court in Smith v. Koyposition Ass’n, 47 Mo. App. 462, and the same point was necessarily and fully decided in that case.

<p>Appeal from the Jackson Circuit Cowrt. — Hon. James Gibson, Judge.'</p> <p>Statement by the court:</p> <p>Exhibit A.</p> <p>Confession of judgment:</p> <p>“ In the Circuit Court of Jackson County, Missouri, -at Kansas City.</p> <p>“Mary Samter, Plaintiff,! v. ^No. 10860. '“Max Blank, Defendant. J</p> <p>11 First. The amount for which judgment may be Tendered against me in favor of Mary Samter is $500, and interest accrued thereon, $12.45, making in all ■$512.45, and I authorize judgment to be entered against me for $512.45 in the above cause.</p> <p>‘ ‘ Second. The fact out of which the above indebtedness arose are as follows: I, Max Blank, being in the mercantile business at number 1428, East Eighteenth 'Street, Kansas City, Missouri, borrowed from Mary Samter the sum of $500 to pay certain liabilities I had incurred in said business; that the said sum of $500 was used in paying for goods that were purchased and used by me in said business at the above number; that at the time I borrowed said sum of $500 from Mary Samter I executed and delivered to her five $100 notes, •due in one, two, three, four and five months from their date, viz., September 1, 1887; that none of said notes have been paid , by me, or any part of said sum •of $500, and that the same is now justly due the said Mary Samter; that all of said notes are not now due; 'that said notes bear interest from date at the rate of ■ten per cent, per annum. Max Blank.</p> <p>“Witness: Eugene Schilling.’’</p> <p>“State of Nebraska, \ “County of Saline. J ’</p> <p>“Max Blank, being duly sworn, on Ms oath deposes and says: That the facts set forth in the foregoing statement are true.</p> <p>“[Signed] ' Max Blank.</p> <p>“Subscribed and sworn to before me this third, day of December, A. D. 1887.</p> <p>“My commission expires October 26, 1892.</p> <p>“[Notary Seal.] Eugene Schilling,</p> <p>“Notary Public.”</p> <p>Said confession of judgment was indorsed as-follows:</p> <p>“No. 10860. Mary Samter v. Max Blank, confession of judgment. Piled December 5, 1887.</p> <p>“L. P. McCox, “Clerk.</p> <p>“By J. S. Chase,</p> <p>“Deputy Clerk.”</p> <p>Exhibit B.</p> <p>Copy of judgment entered on said confession of' judgment:</p> <p>“In the Circuit Court of Jackson County, Missouri,. at Kansas City, Monday, December 5, A. D. 1887.</p> <p>“Mary Samter, Plaintiff,] v. [ No. 10860. “Max Blank, Defendant. J</p> <p>“Now at this day comes plaintiff, by attorney, and’ files a statement in writing for confession of judgment made and signed by the defendant and verified by his affidavit to the following effect: Stating the amount of $512.45 for which judgment may be rendered, and authorizing the entry of judgment thereon, and stating concisely the facts out of which the money due or to become due arose, and showing that the sum confessed. therefor is justly due or to become due. And the court' being satisfied that the said defendant executed the said statement in writing and made the affidavit required thereto, it is, therefore, considered and adjudged by the court that said plaintiff, have and recover of and from the said defendant the sum so confessed, with interest thereon at the rate of ten per cent, per annum, the rate specified in the notes mentioned in the statement, together with the costs of suit incurred and expended, and have thereof execution.”</p> <p>(1) After service on defendant of writ of attachment, the cause of Samter v. Blank stood as it commenced by summons only, R. S. 1889, sec. 560; Huxley v. Harold, 62 Mo. 50. (2) The defendant Blank having consented thereto, judgment was properly entered in the case of Samter v. Blank before the return day of the writ. 3 Blackstone’s Commentaries, 213, 223, 225; Tidd’s Practice, 606; R. S. 1889, secs. 2191, 2192; White v. Bogard, 73 N. T. 256; Boyd v. Carpet Co., 38 Mo. App. 203; Chamberlain v. Mining' Co., 20 Mo. 96; Adler v. Anderson, 42 Mo. App. 189. (3) It is admitted in the agreed statement of facts that the confession of judgment was numbered and filed, and that judgment thereon was entered, in the attachment cause of Samter v. Blank. • (4) After process had been served on defendant, the statute for confession of judgment could not apply. Gilbert v. Gilbert, 33 Mo. App. 267; Boyd v. Carpet Co., 38 Mo. App. 203; Adler v. Anderson, supra; Crouse v. Derbyshire, 10 Mich. 479; Davis v. Wood, 7 Mo. 162. (5) There having been no-proof of fraud, the court in this proceeding had no jurisdiction to postpone the lien of the judgment in the attachment cause of Samter v. Blank beyond the lien of plaintiffs ’ judgment. The parties to the judgment not complaining, strangers cannot. Oilman v. Rovey, '26 Mo. 289; Oates v. Tusten, 89 Mo. 14. (6) The order of the court in the case of Schwartz v. Blank, requiring the sheriff to pay money to Schwartz, having been complied with, ip effectual and conclusive in Schwartz’s behalf.</p> <p>(1) The question involved stands answered in the affirmative by rules which have the sanction of all the authorities on the subject. Gilbert v. Gilbert, 33 Mo. App. 259, 265, 267; Mwray v. Eldridge, 2 Vt. 388, 392; Clark v. Foxcraft, 7 Me. 348, 351; Cole v. Worcester, 2 Conn. 203, 205; Suydam v. Ruggerford, 23 Pick. 465, 472; Iron Co. v. Gleeson, 24 Yt. 228, 235; Lowery v. McGee, 75 Ind. 500, 510. It is universally held that the result is such that subsequent attaching creditors can take advantage of the same. Bank v. McDonald, 46 Mo. 31, 33; Stone v. Miller, 62 Barb. 430, 443; Alley v. Myers, 2 Tenn. Ch. 206, 210; Drake on Attachment [7 Ed.] see. 262; Gilbert v. Gilbert, 33 Mo. App. 259, 265; Fond v. Davenport, 44 Cal. 481, 486. (2) The order of the court made in the Schwartz case was without effect on these plaintiffs, for the conclusive reasons they were no parties to it; were not notified of the 'motion on which it was based; and are not even mentioned in the entry.- Edwards v. Smith, 27 Pac. Rep. 809.</p>

— Hon. James G-ibson, Judge. (1) As was conceded below, and will undoubtedly be conceded here, appellants had a case unless the-respondents graded the street to the then established grade as petitioned. Sheehy v. Railroad, 94 Mo. 574. (2) By established grade is meant that fixed by the records of the council. Kepple v. Keokuk, 61 Iowa, 653.

.Appeal from the Jackson Criminal Court. — Hon. Henry P. White, Judge. (1) The specific offense charged is that of being a vagrant, but the constituent facts alleged are at variance with such offense as defined by statute in section ■8846, chapter 169, volume 2, Bevised Statutes, and by section 3841, page 917, volume 1, Bevised Statutes. The offense at which the ordinance of appellee seems aimed is declared a felony by section 3485, page 851, volume 1, Bevised Statutes.

— Hon. R. H. Eield, Judge. ' ' (1) The furnaces, with their connections, attach- *' ments and pipes, constituted the furnace systems of the . houses. The houses were constructed and designed for ; such systems of heating, and the same constituted apart; o'f the houses. They constituted fixtures as fully as doors, transoms, keys or shutters, and plaintiffs were, consequently, entitled to a lien therefor. Goodin v. Ass’n, 5 Mo.

<p>Appeal from the Jackson Circuit Court. — Hon. James Gtibson, Judge.</p> <p>(1) Tbe court should have sustained defendant’s demurrer to the evidence. Hobyns v. Meyer, 95 Mo. 132; Furniture Co. v. Fricke, 39 Mo. App. 146; Robinson’s Ex’rs v. Robarás, 15 Mo. 459; Brooks v. Wimer, 20 Mo. 503; Reed v. Pelletier, 28 Mo. 173; Thompson v* Foerstel, 10 Mo. App. 290; Hopkins v. Hastings, 21 Mo. App. 263; State v. County Cowrt, 51 Mo. 350; State v. Coimty Court, 51 Mo. 395; Eaton’s Adm’r v. Perry, 29 Mo. 96. (2) Each of the instructions of the court, whether given on its own or plaintiff ;s motion, contains reversible error.</p> <p>(1) There was ample proof on the trial to support the verdict of the jury. The mortgages offered in evidence were assailed and are assailable on two grounds, because they were to the use of the grantor. Brook v. Wimer, 20 Mo. 503; Reed v. Pelletier, 28 Mo. 173; State to use v. Tasker, 31 Mo. 445; State to use v. D’Oench, 31 Mo. 453; Lodge v.'Samuels, 50 Mo. 204; Bullene v. Barrett, 87 Mo. 185; Hisey v. Goodwin, 90 Mo. 366. (2) The mortgages assailed in this case were withheld from the record at the request of, and by agreement with, the defendant (mortgagor), for the avowed purpose of obtaining credit on a false basis. Good faith and justice require that a chattel mortgage be put on record in a reasonable time. Wilson v. Milligan, 75 Mo. 41; Walsh v. Chambers, 13 Mo. App. 301.</p>

— Hon. A. M.. ■ Woodson, Judge. (1) The transcript of the justice’s docket shows that the notice to Schuler & Muench by publication was fatally defective, and that the judgment against appellant is absolutely void. R. S. 1889, sec. 6163; McKelvey v. Wonderly, 26 Mo. App. 631; Railroad v. Campbell, 62 Mo. 588; Bobb v. Woodward, 42 Mo. 482.

— Hon. Henry M. Ramey, Judge. (1) Appellant was damaged by respondent’s gross negligence in not delivering the message from appellant to its attorney, M. M. Fuller, October 31, 1887, to the amount of the value of the property left after satisfying the first five attachments and costs therein. Bliss v. Tel. Co., 30 Mo. App. 103; Radley v. Baxendale, 9 Exch. 341; 3 Sutherland on Damages [1882 Ed.] p. 298, hot. pp. 305, 306; Griffin v. Colver, 16 N. T. 489; Abeles v. Tel.

— Hon. Gr. D. Burgess, Judge. ' „ (1) The law is that a passenger who jumps from a railroad train in motion merely to avoid being carried past the station at which he wants to stop, and is thereby injured, cannot recover. Nelson v. Railroad, 68 Mo. 593; Wharton on Negligence, secs. 378-80. And where the plaintiff’s own case shows that the injury occurred by his own negligence the court should direct a nonsuit.

— Hon. P. O. Sleipp, Special Judge. (1) The first count of plaintiff’s petition, being addressed to the equity side of the court, should be tried anew by this court. Benne v. Sehnecko, 100 Mo. 250; Balev. Hogan, 39 Mo. App. 646; McElroy v. Maxivell, 101 Mo. 294; Hardware Co. v. Walter, 91 Mo. 484; State ex rel. Walker v. Hmistone, 92 Mo. 327.

— Hon. Richard Field, Judge. The following is tlie ordinance construed in tlie opinion: “Sec. 1. That Fourth street between Lamine and Osage streets be graded and macadamized according to the following plans and specifications: The grading to be done ten inches belpw grade with six inches' crowning in the center.

— Hon. Richabd Field, Judge. This action was brought in the circuit court of Pettis county, Missouri, returnable to the January term, A. D. 1890, of said court.

— Hon. D. A. DeAbmond, Judge. (1) Hurd, the defendant, as the innocent holder for value without notice of the bond sought to be enjoined, cannot be bound by the unauthorized acts of Cheek. The fact that he bought the bond of Cheek does not give Cheek any right to meddle with Hurd’s rights. Payment to Cheek, who neither had the possession of the bond nor authority to collect, is no protection.

<p>Appeal from the Jasper Circuit Cowrt. — Hon. Joseph D. Pebkins, Special Judge.</p>

— Hon. A. M. Woodson, Judge. (1) Defendant’s second instruction should have been given, because the paper was not negotiated in the .sense of that term in section 735, Revised Statutes, 1889.-A maker may issue his paper without indorsement. But to negotiate any commercial instrument payable “to order” it must be indorsed. Ricev. McFarland, .34 Mo. App. 410; Patterson v. Cave, 61 Mo. 441; Osgood v. Artt, 17 Cent. L. J. 190; Miller v. Weeks, '22 Pa.

<p>Appeal from the Scotland Circuit Cou/rt. — Hon. Ben. E. Tubneb, Judge.</p>

<p>Stallions: construction and effect of contract for services. The statute in regard to the publication of the terms for the service of a stallion (R. S. 1889, sec. 6732) does not invalidate a contract fixing the amount of the charges for such services; it applies only in the absence of a special agreement in relation to the amount of such charges. A contract of that character is construed in this cause.,</p>

<p>.■Practice, Appellate: tiling ot bill of exceptions out of time. When, a bill of exceptions is filed out of time, this court can only review rulings which appear from the record proper, and, in the absence of error in a ruling so appearing, must affirm the judgment appealed from.</p>

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

<p>1. Practice, Appellate: non-prejudicial error. The refusal of the trial court to require the plaintiff to elect between two causes of action, even when erroneous, is not prejudicial, when that court - limits him to the proof of one of the causes.</p> <p>2. Action for Killing of Stock by Railway Train: contributory negligence. Contributory negligence, debarring the plaintiff’s right of recovery, exists only where the negligence of plaintiff contributed proximately to the injury sued for; it does not exist where-the injury sued for and that resulting from the fault of the plaintiff are disconnected.</p> <p>3. -: sufficiency oe evidence as to damages. The evidence is-considered, and is held to have been sufficiently definite in regard to. the quantum of the damages to warrant the verdict for the plaintiff.</p>

<p>1. Obstruction of Watercourses: right oh action op a subsequently incoming tenant. If a watercourse is wrongfully obstructed by the building of a permanent embankment (in this cause this was done by a railway company in the construction of its road), a tenant of adjacent land, though he rents the land after the erection of the embankment and with knowledge thereof, can recover from the wrongdoer the damages to his crops from overflows caused by such obstruction.</p> <p>•2. -: former recovery. When several annual erops are destroyed by different overflows, thus occasioned, the tenant may sue for the injury to each crop as it occurs, and, therefore, a former suit will be no bar to a recovery in another action for damages suffered subsequently to the institution of the first suit.</p> <p>.3. -: measure op damages. The damages recoverable by the tenant in such an action consist of the injury done to the crop sued for. Where a tenant is not prevented by such an overflow from cultivating the land held by him, he is not entitled to the depreciation in the rental value of the land in consequence of such obstruction.</p> <p>-4. Damages: instructions. An instruction in such an action, which directs the jury to assess the plaintiff’s damages at such sum as they may believe he is entitled to under the evidence, is erroneous.</p>

Louis Cowrt of Criminal Correction. Hon. J. R. Claiborne, Judge. - The information is insufficient, as it was not lodged by the proper officer. In State v. Bennett, 102 Mo. 369, 370, it was held that the special law relating to the St. Louis court of criminal correction concerning informations had been repealed by the act of April 12, 1877. Acts, 1877, p. 354.-

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

<p>1. Practice, Appellate: judgment for right party. The judgment in this cause is affirmed on the ground that it is for the right party.</p> <p>2. Law and Fact: interpretation and effect of letter. Tie-defendant in this cause transmitted money to a third person in a letter containing directions in regard to the application of the money. Held, that the interpretation of the letter was a matter of law for the court; and that the letter showed that the remittance was made to this, third person as agent forj,the defendant, and not as agent for the plaintiff, and was conclusive against the defendant upon that issue.</p>

Louis County Circuit Court.Hon. W. W. Edwabds, Judge. ' (1) When the contract was broken in July, 1888, this gave a cause of action, and only one; all damages flowing from said breach were an entirety; the suit for the keeping of the horses for the months of June and July, 1888, was a part of said damages, and indivisible-from any other, which respondent nad or could suffer, and the suit for their recovery was an adjudication of' all the causes of action flowing from said…

<p>1. Action by Servant Based on Injuries Caused by Defective Elevator: 'STifficency of the evidence. The evidence in this action, which was a suit by a servant against his master for damages for personal injuries caused by the fall of an elevator, is considered, and it is held sufficient to establish that the .elevator was defective, and that the master was negligent in not discovering the defects, and to warrant the submission of the cause to the jury.</p> <p>2. -: specification of defects: election. The petition in the cause having specified a number of defects in the appurtenances of the elevator, which were not inconsistent with each other nor repetitions of each other, but were separate and cumulative specifications of different defects, it is held that the plaintiff could not be required to elect on which of these specifications he would go to trial.</p> <p>3. -: diminished earning capacity after majority: pleading. When the plaintiff in such an action is a minor, he need not specially plead as damages that his earning capacity after he will have attained his majority will be diminished; moreover, a general allegation of permanent disability to labor by reason of the injuries complained of embraces a claim for such damages.</p> <p>4. -: -: evidence. Such damages maybe allowed in favor of a minor, though there is no direct evidence of them, their amount being referred to the judgment of the jury as a matter of common experienco.</p> <p>5. Evidence of- Special Damages Which Have Not Been Pleaded; waiver op objection. Held, in the course of discussion, that if evidence of special damages is admitted without objection, the right of objection on the ground that the damages were not specially pleaded is lost.</p> <p>6. Master and Servant: extent op master’s obligation to furnish prober appliances. A master is under an absolute duty to use reasonable care and inspection in regard to the machinery and appliances placed by him in the hands of his servant for use. As between himself and his servant he cannot relieve himself from this responsibility by delegating or leaving to another the care of the machinery, and his obligation to his servants in this regard will, therefore, not be affected by the fact that he rented the machinery as part of a building, nor by the further circumstance that a third person, as employe of his landlord, has been intrusted with the supervision of the machinery.</p> <p>7. Contributory Negligence on Part of a Child: instructions. An instruction in this cause defined the care, which the plaintiff, who was a child, was bound to exercise, as such care “as boys of his age, experience and discretion usually exercise.” Held, per curiam, that this instruction was faulty, in that it made the requisite care depend upon the discretion of this particular child instead' of the discretion reasonably to be expected of a boy of his age, but that the error was not prejudicial so as to necessitate a reversal of the judgment in his favor. But held by Thompson, J., that the instruction was correct.</p>

<p>Appeal from the Sowell Circuit Coiwt. — Hon. W. N. Evans, Judge.</p>

Louis Court of Criminal Correction. Hon. George W. Anderson, Special Judge. The record shows that there was an adjournment of the case during its progress. It was the court’s statutory duty to admonish the jury at the adjournment. It should affirmatively appear of record that this was done. R. S. 1889, sec. 4209. “In all prosecutions for * * * for verbal slander * * * the jury, under the direction of the court, shall determine the law and the fact.” Const.

— Hon. O. C. Bland, Judge. The subscription made by defendant and promise by him to pay the sum of $100 was a valid promise, and the plaintiffs having complied with the terms of their contract were entitled to recover the amount of the subscription from the defendant. Worlcmcm v. Cmnpbdl, 46 Mo. 305; Koch v. Lay, 38 Mo. 147. The contention of defendant was that Jones, having subscribed the $100 to the articles of incorporation, released the defendant from his obligation.

— Hon.. H. C. O’Bbyan, Judge. (1) Tbe court was mistaken as to the law in this; case, and proceeded npon the theory and belief that the road in question was one of the public streets of the city. This was simply a wagon road along the bank of the river. To constitute a public street there must be an ordinance establishing it, or an acceptance in some manner, by the city. Skrainka v. Oertel, 44 Mo. App. 474; Churchman v. Kansas City, 44 Mo. App. 665.

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

<p>Appeal from the New Madrid Circuit Court. — Hon. H. O. O’Bryan, Judge.</p>

<p>1. Evidence: clerk’s indorsement op pile 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. Reformation of Contract: mistake op one party only. To entitle a party to the reformation of a contract for mistake, the mistake must be mutual; mistake on the part of the complainant alone will not suffice. And held, further, in the course of discussion, that the mistake must be established by evidence which will strike the mind of the chancellor as free from reasonable doubt.</p> <p>3. -: laches. It is the duty of the insured to examine a policy insuring him against loss by fire, and see whether it contains the contract bargained for, and the retention of the policy without complaint until after loss, and for ’an unreasonable time — over four months in this case — debars the right of reformation.</p> <p>4. Becovery on Theory Inconsistent with the Pleadings. A plaintiff cannot recover upon a theory of the ease adverse to that upon which his petition proceeds.</p>

<p>Contracts: implied promise. A promise cannot be implied contrary to> the expressed intention of the party sought to be charged.</p>

<p>The Record is examined and held not to show error.</p>

— Hon. John Gr. Wear, Judge. (1) The allegations in the information are in the language of the statute, and by the provisions of the same statute á pistol is a dangerous and deadly weapon, loaded or unloaded. R. S. 1889, sec. 3502; State v. Hoffman, 78 Mo. 256. If it is claimed that the information fails to allege that the pistol was loaded, hence was not dangerous; that is a matter to be determined by proof on trial, but is no objection to the information.

<p>1. Pleading1: objection to pasties by answer. Held, Biggs, J., dissenting, that, in order to raise the objection that there is a misjoinder of parties plaintiff, an answer must1 in terms object to the action on that ground; it will not suffice that the answer states facts, showing that the alleged cause of action of plaintiffs, suing jointly, is not joint but several.</p> <p>2. -: waiver oe such objection. A party cannot at the same time raise issues of law and of fact going to the entire pleading of the adverse party; by raising the issues of fact, he waives those of law. Held, accordingly, that a defendant has not the right at the same time to answer the petition of the plaintiff and to demur thereto for misjoinder of parties.</p> <p>3. Limitation of Actions: attorney and client. The statute of limitations begins to run in favor of an attorney on a claim for money collected by him for his client, when the client acquires knowledge of the collection.</p>

(1) The court erred in excluding the assignment of the attachment bonds and thereupon instructing the jury to find for the defendants. Such obligations and the causes of action arising thereon are proper subjects of alienation. State to use v. McHale, 16 Mo. App. 478-482; Snyder v. JRailroad, 86 Mo. 613. (2) The assignment was made by the president and general manager, and the secretary of the company.

<p>1. Licensing Theatrical Performances: statutory limitation OF POWER OF CITIES OF THE FOURTH CLASS. \ city of the fourth class has no power to levy a license tax upon- a theatrical performance, when held in an opera house within its limits, the prohibition of section 8193 of the Revised Statutes of 1889 being valid.</p> <p>2. Statutes: repugnancy. Repugnant statutes are such as cannot stand together; and held, accordingly, that two statutory provisions under consideration in this cause were not repugnant, since one was ■ in the nature of a general provision, and the other served as a limitation or exception thereto.</p>

<p>Appeal from the Greene Circuit Court. — Hon. W. D. Hubbard, Judge,</p> <p>There is no evidence in the case that the defendant Marquis had any knowledge of the fact that the satisfaction of the deed of trust as to lot 54 was entered by mistake, or of any fact calculated to put a prudent man upon inquiry as to why it was so entered; and where one or two innocent parties must suffer loss, as in this case, he through whose fraud, carelessness or mistake the loss occurs must suffer such loss. Therefore, the finding and judgment of the circuit court is for the wrong party. Fowler v. Allen, 7 L. R. A. 745; Foote v. French, 13 Wend. 570; Cwpples v. Whelan, 61 Mo. 586; Fice v. Coffman, 56 Mo. 434. The plaintiff entered the satisfaction on the margin of the record of the deed of trust, and even though this was done by mistake injury would result to the defendant Marquis, should the judgment of' the lower court 'be permitted to stand; and this was the cause of his making the purchase of the lot from the defendants "Witt, and altering his condition. The plaintiff is estopped from asserting any claim under the deed of trust adverse to the interest of Marquis. Acton v. Dooley, 74 Mo. 67; ■Sav. Ass’n v. Kehler, 7 Mo. App. 158.</p> <p>In this case Witt was undoubtedly a fraudulent ■grantor, and while his grantee, Marquis, was not positively shown to have known or participated in the fraud at the time of the purchase, yet having paid no money but given notes, and having received notice of the fraud before the payment, the law is for plaintiff. For if a bona fide grantee receive notice of a fraud before payment, it is held, that he is not thereafter a' bona fide purchaser for value, and giving security does not relieve him from his attitude. Arnholt v. HarUvig, 73 Mo. 485; Dougherty v. Cooper, 77 Mo. 528; Yoimgv. Keller, 94 Mo. ■581; Conrad v. Fisher, 37 Mo. App. 411. Where the vendor’s object in making the sale is to defeat his creditors, three conditions must concur to protect the purchaser’s title as against .such creditors: First. He must buy without notice of the bad intent of the vendor. Second. He must be a purchaser for a valuable consideration. Third. He must have paid the purchase money before he had notice of the fraud, and, where the purchaser did not actually pay the purchase money before such notice, it is not sufficient that he had •agreed upon the purchase before notice. Cheek v. Waldron, 39 Mo. App. 21; Sexton v. Anderson, 94 Mo. 373; Gweschev. McDonald, 103 Mo. 1.</p>

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

— Hon. Joseph ■Cravens, Judge.' The indictment is bad, because it does not set out the name of the person to whom the alleged illegal sale of the intoxicating liquor was made by the defendant as a registered druggist and pharmacist. The indictment, therefore, fails in certainty, and will not bar a second prosecution, nor can an intelligent defense be made by a druggist to such a charge. State v. Martin, 44 Mo. App. 45.

<p>Appeal from the' Barry Circuit Court. — Host. Joseph Cravens, Judge.</p>

— Hon. W, N. Evans, Judge. Section 6397, Revised Statutes, 1889, does not authorize a judgment for rent either in the justice’s court or the circuit court. Creen v. Steinberg, 15 Mo. App. 32; R. S. 1889, sec. 6399. The court very properly held that, since the plaintiff did not bring himself within the provisions of section 6399, supra, by showing that he was a purchaser of defendant’s landlord by a “deed regularly acknowledged,” he was not entitled to recover possession.

<p>Practice, Appellate: payment on docket pee in criminal case. A defendant in a criminal case, who appeals to this court, must pay the docket fee; in ease of his failure to do so his appeal may he dismissed.</p>

<p>Error to the Hannibal Court of Common Pleas, — Hon. Thos. H. Bacon, Judge.-</p>

— Hon. John Gh Wear, Judge. (1) The court erred in sustaining the defendant’s demurrer to the plaintiff’s petition. Held: that plaintiff was not entitled to recover 'the taxes which he had paid .upon said lands after his purchase of the same, and prior, to the recovery of the same in the action of ejectment by respondent. See authorities above cited.

<p>Criminal Law: open and gross lewdness: sufficiency of the r evidence. The evidence in this cause is considered, and held insufficient to support a conviction for the crime charged, which was open and gross lewdness.</p>

<p>1. Mechanics’ Liens: insufficient account. An account filed as a mechanic's lien, though filed by the original contractor with the owner of the land, and though for the amount of the agreed contract price, will be insufficient to create a lien, if it consists of a single lumping charge for the erection of the building as per contract.</p> <p>2. -: supjpioienoy OE ACCOUNT. Held, in the course of discussion, that the goodness of the mechanic’s lien cannot depend upon whether the action for the enforcement of the lien is brought upon an express contract or a quantum meruit.</p>

<p>1. Fire Insurance Policy: condition as to change in title: sale of property in partition. A policy of fire insurance contained tie following provision: "This entire policy * * * shall be void * * * if any change, other than the death of the insured, takes place in the interest, title or possession of the subject of the insurance, * * * whether by legal process, or judgment or by voluntary act of the insured, or otherwise.” The insured died, and devised one-third of his estate to his wife during her widowhood, and remainder to ' his children. Subsequently the property insured, a dwelling, was set apart to the widow, during widowhood, under partition proceedings between the devisees. Held, that a change of title had been effected, under these proceedings, which avoided the policy.</p> <p>2. -: INSURANCE OF DIFFERENT SUBJECTS BY SAME POLICY: BREACH OF condition as to one. The policy in question insured said dwelling and the furniture therein in separate amounts. Held (following Holloway v. Dwelling-House Ins. Co., 48 Mo. App. 1), that it was avoided as to both by said breach of condition as to the dwelling, since it expressly provided that the entire policy should be void in case of such breach.</p>

<p>Appeal from the Greene ' Circuit Cou/rt. — Hon. W. D. Hubbard, Judge.</p>

<p> Appeal from the Franklin Circuit Cowrt. </p>

— Hon. Henry M. Ramey, Judge. (1) Tlie attempt to incorporate in Colorado was •a fraud' on the laws of the state of Missouri and on the laws of the state of Colorado. Sill v. Beach, 12 N. J. Eq. 31; Land Grant Co. v. Coffey Co., 6 Kan. 245; ■Stout v. ZuUck, 7 Atl. Rep. (N. J.) 362; Bankv. Sarle, 13 Pet. 520; Mills v. Grocery Go., 15 S. W. Rep.

— Hon. J. H* Slovee, Judge.' Process of garnishment cannot be made to operate so as to annul the contracts of parties. The plaintiff stands only in the shoes of the defendant, and the plaintiff’s rights against the garnishee are no greater than those of the debtor, and the garnishee cannot be placed in a worse position than he would have occupied had he been directly sued by the debtor in the attachment suit.

— Hon.. R. H. Field, Judge. (1) Plaintiffs’ contention that they were not bound by the terms of the contract, because Mrs. Smur was a married woman, is no excuse.

— Hon. James M. Sandusky, Judge. (1) To allow the introduction of ordinance number 40147 over the objection of defendant’s counsel, was error. (2) It is well-settled law in this state that it is not incumbent upon defendant in cases of this kind to show that plaintiff was guilty of negligence, if plaintiff’s own evidence shows that he was guilty of contributory negligence. Nichols v. Winfrey, 79 Mo. 544, 551; Taylor v. Railroad, 26 Mo.

— Hon. James M. ■ Sandusky, Judge. (1) The appeal from the probate court was from a judgment against the administrator, and, although not taken by him, it was necessarily taken for him, and he was in court on the appeal. Who could the judgment for the claim be rendered against but him? And how could judgment be rendered against him if the appeal by the other parties interested did not bring, him into court?

— Hon. Richabd Field, Judge. The judgment is erroneous because: First. It is not' in the alternative as required by statute.

— Hon. Richard Field, Judge. (1) The second instruction given for the plaintiffs is erroneous in these particulars, viz.: It assumes as a fixed fact the right of plaintiffs to sell defendant’s farm, at the time of the contract, when-that is the very point in issue, inasmuch as defendant claims in his answer, and in the evidence which tended to show that he had previously revoked the authority of plaintiffs to act further under their employment, that he had withdrawn the farm…

— Hon. Richard Field, Judge. The defendant’s demurrer to the evidence should have been sustained; there was no proof of any sort offered at the trial, nor did the evidence tend to show that the defendant ever refused to deliver the wheat contracted for at Mt. Leonard in a reasonable time after the contract was entered into; this was a material point, and there was a total failure of proof on that point.

— Hon. Richard Field, Judge. (1) No direct adjudication is required as to ownership, and the omission of defendant’s name in connection with the assessment against his property, resulting in no prejudice whatever to his property rights, and he being personally present when the assessment was made, and in full possession of all notice that an assessment in Ms name conld possibly impart, tbe tax bill being issued in his name, and be being properly made a defendant in tbis…

— Hon. John E. Ryland, Judge. (1) The trial court erred in refusing to give instruction, numbered 2, for the defendant. 2 Bouvier’s Law Dictionary [15 Ed.] p. 606, title, Sales; p. 353, title, Parties; 1 Bouvier’s Law Dictionary [15 Ed.] p. 392, title, Contracts; p. 134, title, Agency; 1 Parsons on Contracts [6 Ed.] top p. 519. A sale of liquor to a minor for his parent’s use is not a sale to the minor. Commonwealth v. Latterville, 120 Mass. 385 (1876); Milling Co. v. Ins.

— Hon. Chas. W. Sloan, Judge. The paper purporting to be a finding of facts separate from the conclusions of law wholly fails to comply with the statutes. Bevised Statutes, 1889, section 2135, contemplate that the court shall state its conclusions of law as well as fact. The conclusions of law .are intended to answer the place of instructions to a jury.

— Hon. Chas. W. Sloan, Judge. (1) The election was void because the city of Pleasant Hill was not permitted to vote on the question. “That one entitled to-vote shall not be deprived of the privilege by the action of the authorities, is a fundamental principle.” Cooley’s Constitutional Limitations [4 Ed.] sec. 616, p. 766; People v. Myncvrd, 15 Mich. 47; Lmring v. Carpenter, 20 N. Y. 477.

— Hon. Gt. D. 'Burgess, Judge. (1) The checks of Canine & Co., to Balchls order, and indorsed by hiin (which indorsement he admitted to be genuine), offered in evidence by plaintiff in rebuttal, were clearly admissible, first, because they threw light on Balch’s relation to the Brunswick Flour Company, and, secondly, for the reason that they directly contradicted the testimony of defendant Balch. 1 Greenleaf on Evidence [13 Ed.] sec. 462; 5 Waifs-Actions & Defenses, p. 113,…

— Hon. A. M. Woodson, Judge. (1) The service by publication, upon David A. Steele was sufficient. It was not based on the return of the summons against Dudley A. Steele, but was ordered at the date of the issuance of the summons.

— Hon. Henry M. Ramey, Judge. (1) Henry is described in the policy as the “duly .authorized and regularly commissioned agent.” The terms of the policy itself acknowledge the liability of the company “for the acts of any person who may procure this insurance,” provided he shall be “the duly commissioned and lawfully authorized agent of the company.” The court erred in holding that Henry could not waive the condition of the policy (if it is a condition) with reference to the…

— Hon. A. M. Woodson, Judge. As to the second ground alleged in the motion in arrest we wish to call the attention of the court to section 6330, Revised Statutes of Missouri, 1889.

Heney ' M. Ramey, Judge. If the paving of Frederick avenne was authorized by ordinance of the city it is liable for damages resulting to plaintiff from the carelessness, negligence or unskilfulness of its agents in performing the work so authorized. Elliott on Eoads & Streets, 352; Wegman v. City of Jefferson, 61 Mo. 55; 1 Shearman & Eedfield on Negligence, sec. 271; Gibson v.. Zimmerman, 27 Mo.

— Hon. Henby M. Ramey, Judge. (1) The court below should have directed a verdict for appellant. By section 1270 of the Revised Statutes of 1889, and under section 2 of special ordinance number 599 of the city of St. Joseph, it was the duty of the street-car company to pay for that portion of the street improvement between the tracks and eighteen inches on either outside. Farrar v. St. Louis, 80 Mo. 393.

— Hon. D. P„ Stratton, Judge. The indictment is for selling to one Ed. Miller; as to a sale to such a party there is not one iota of evidence, and sales to other parties will not support this indictment. State v. Hay, 36 Mo. 80. But take it for granted the party intended was Ed. Miller, the only evidence in regard to him is this question and answer: “Do you know Ed. Miller? A. I don’t know that I do.” How a conviction can be supported on such evidence we cannot understand.

— Hon. Cyrus A. Anthony, Judge. (1) The court erred in excluding evidence that defendant was a deputy constable. R. S. 1889, sec. 3503; Clayton v. State, 17 S. W. Rep. 261; R. S. 1889, sec. 2380. (2) Instructions, numbered 2 and 3, for the defense should have been given. R. S. 1889, sec. 3503; Clayton v. State, 17 S. W. Rep. 261; R. S. 1889, sec. 2380; Williams v. State, 42 Tex. 466. The court very properly instructed the jury as to the law. R. S. 1889, sec. 3502.

— Hon. R. H„ Field, Judge. The position of the defendants is that when they-delivered possession of the premises described in the lease to the Krull Tailoring Company, a corporation, and the plaintiff, knowing of, and consenting to, such change of possession, accepted rent from the Krull Tailoring Company as his tenant, then the defendants were discharged under the case, or, in other words, this state of facts constituted a surrender of the lease.

— Hon. Richard ' Field, Judge. ' , (1) Plaintiffs had not, prior to the institution of this suit, reduced their claims to judgment. There existed no reason why they could not or should not have done so. They cannot, therefore, maintain this action. Luthey v. Woods, 1 Mo. App. 167; Dodd, Broivn & Co. v. Levy, 10 Mo. App. 121; Batchelder v. Altheimer, 10 Mo. App. 189; Thias v. Steiner, 102 Mo. 314; Kent v. Curtis, 4 Mo. App. 121; Merry v. Freeman, 44 Mo. 518; jRoanv.

— Hon. John A. • Hockaday, Judge. The demurrer should have been given, and the judgment rendered for the defendant, because there is no evidence showing that the injuries complained of were occasioned by the negligence of the defendant.) This court will not review questions touching the weight of evidence. Krider v. Milner, 99 Mo. 145, and cases cited.

— Hon. E. M. Hughes, Judge. (1) The only question in the case is whether the railroad ties, under the circumstances, are personal property or real estate. If personal property, then plaintiff was entitled to a verdict for possession, and the court erred in refusing the instructions asked by it, and, if real estate, the case should have been dismissed.

— Hon. E. M. Hughes, Judge. ' (1) Plaintiff’s bill contains no equities, and does not state facts sufficient. It neither charges fraud, accident nor mistake. Fraud and collusion must be alleged and proven. Smith v. Sims, 77 Mo. 269; Feed v. Bott, 100 Mo. 62; Murphy v. BeFrance, 101 Mo. 151. (2) . Plaintiff’s remedy was at law. If defendants’ claim was improperly allowed the statute gave the remedy. He had ' four months to. question it.

— Hon. E. M. '.Hughes, Judge. The property was taken with plaintiff ;s consent, and the demurrer to the evidence should have been sustained. Plaintiff admits that he thought Moore was acting as an officer and delivered him the property. His ignorance was no ground for this suit. If not wrongfully taken, but only wrongfully detained, then a demand of defendant was necessary to maintain this suit. There was no demand alleged or proven.

— Hon. E. M. Hughes, Judge. (1) In the first count the defendant was charged with disturbing the peace of a family; in the second count, -with, disturbing tbe peace of individuals, who composed the family, naming them. The offense charged in each count was identical. The silence of the - jury in the justice’s court on either count is an implied acquittal of the defendant on the other.

— Hon. E. M. Hughes, Judge. (1) The increase of animals belongs to the usufructuary. White v. Storms, 21 Mo. App. 288; Stuart v. Ball’s Adm’rs, 33 Mo. 156; 2 Kent’s Commentaries, 360, 450. The mortgagor being in possession of the property in this case was the usufructuary.

— Hon. Heney M. Ramey, Judge. (1) The fact, that the instruction complained of directed the jury that they might find for the plaintiff on a state of facts admitted not to exist, is a fatal objection. Bender v. Bungan, 99 Mo. 126; Harty v. Raib-oad, 95' Mo. 368; Bankv. Overall, 90 Mo. 410; s. o., 16 Mo. App. 510; Babb v. Granite Co., 41 Mo. App. 642; Norton v. Railroad, AO Mo. App. 642.

<p>1. Crops Raised by Trespasser: landlord and tenant. When an intruder upon land plants crops thereon, such crops, so long as they remain unsevered, are regarded as the property of the landowner. This rule is applied in this cause against a tenant, who wrongfully retained possession of the premises let to him after his term had expired.</p> <p>2. Annual Crops: replevin. Crops raised by yearly labor and cultivation are chattels, and may be recovered by replevin.</p> <p>3. Admission of Evidence not Covered by Pleadings: sufficiency of objection, iSemble, that an objection to the admissibility of evidence on the ground of the irrelevancy of the evidence covers the ground that the evidence is not admissible under the pleadings.</p> <p>4. Estoppel in Pais: sufficiency of evidence. The evidence in this cause is considered and held insufficient to establish an estoppel imjpais.</p>

<p>1. Practice, Appellate: evidence of filing of bill of exceptions. The mere recital hy the-clerk in the transcript that a hill of exceptions was filed is not sufficient evidence of the filing of the hill, when the transcript shows no record entry to that effect, and the hill itself does not contain a file mark.</p> <p>2. -: matter of record. When judgment is rendered in the trial court upon motion, and the judgment entry clearly shows the nature of the motion, the action of that court in rendering the judgment may he reviewed as matter of error as distinguished from matter of exception.</p> <p>3. Reversal of Judgment on Appeal: judgment in trial court without retrial of CAUSE. When' an appellate court simply reverses the judgment appealed from and remands the cause, the entry of judgment in the trial court without a retrial of the cause is not warranted, unless legal propositions only are involved, and they depend solely upon conceded or written evidence, the legal effect of which was determined hy the appellate court.</p> <p>4. Justices’ Courts: constables : allowance of penal interest for wrongful release of lew. Penal interest is not allowable under sections 3029 and 3032 of the Revised Statutes of 1879 for the wrongful release hy a constable of property levied upon hy him. Whether it is allowable for such release under the amendment of section 3029 in the revision of 1889 (R. S. 1889, sec. 6317) is not determined.</p>

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

<p>Appeal from the Iranldin Circuit Cowrt. — Hon. Eudolph Hirzel, Judge.</p>

— Hon. W. D. Hubbard, Judge. The creditor acquires such rights against the garnishee as the debtor possessed at the date of the garnishment. Weil v. Tyler, 38 Mo. 545; McPherson v. Baib'oad, 6 Mo. 103, loe. cit. 110-111; Fenton v. Bloch, Tyler £ Co., 10 Mo. App. 536, loe. cit. 539; Drake on Attachments [5 Ed.] sec. 452, and cases cited. “The issue or issues [speaking of garnishment] shall be tried as ordinary issues between plaintiff and defendant.” R. S., sec. 5234.

<p>Appeal from the Cape Girardeau Circuit Cott/rt. Hon. H. C. O’Bbyan, Judge.</p>

<p>1. Accord and Satisfaction: implication from silence. An accord and satisfaction may be proved by the conduct of the parties as well as by their express agreement. But held, that the mere fact that the plaintiff received from the defendants less than the amount of his claim in silence, and with knowledge that the defendants claimed to be indebted to him only to the extent of the payment made, did not conclusively and as matter of law establish an accord and satisfaction.</p> <p>2. --: ACCEPTANCE OF SPECIFIC TENDER OF LESS THAN CLAIM IN -FULL satisfaction. Held further, however, in the course of discussion, that where a controversy as to the amount' of the indebtedness exists between a creditor and his debtor, and the debtor tenders to the creditor the amount which he claims is due on condition that the acceptance of it should discharge the entire demand, the acceptance will constitute an accord and satisfaction as a matter of law, since one who accepts a conditional tender assents to the condition.</p>

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

<p>1. Criminal Law: sale of intoxicating liquors by licenser dramshop keeper on Sunday: indictment. An. indictment for the sale of intoxicating liquors hy a licensed dramshop keeper at his dramshop on a Sunday is good, if it follows the language of the statute in charging the offense.</p> <p>2. -: pleading in prosecution for misdemeanor. When a defendant, after pleading not guilty to an indictment for a misdemeanor, hy leave of court demurs to the indictment, the demurrer has not the effect of withdrawing the plea, and, therefore, the defendant need not enter a new plea after the demurrer is overruled.</p> <p>3. -: UNLAWFUL SALE OF INTOXICATING LIQUORS: BURDEN OF PROOF. In order to convict a defendant for the unlawful selling of intoxicating liquors, when the sale is not made hy him in person, hut hy some one else on the defendant’s premises, the state must show that the-person making the sale was the agent or employe of the defendant. But, when it appears that the liquor was sold by a person employed by the defendant to sell liquor for him at the particular place, and that the sale took place in violation of the statute, then a prima facie case is made out against the defendant, which he must rebut by showing that, in making the sale, his agent acted either without authority or contrary to his orders.</p> <p>4. --■: KEEPING LICENSED DRAMSHOP OPEN ON SUNDAY: SUFFICIENCY of the evidence. The evidence in this cause is considered, and held sufficient to warrant the conviction of the defendant, a licensed dram-shop keeper, for keeping his dramshop open and selling intoxicating liquors therein on a Sunday, though he was not present in person.</p> <p>5. -: -: purpose of defendant. It is immaterial forwha purpose the defendant in such a cause goes to his dramshop, if he opens the place so that customers can come in, and sells intoxicating liquors there after they have come in on a Sunday.</p> <p>6. --•: prosecution for misdemeanor: instructing jury in ABSENCE OF DEFENDANT AND HIS COUNSEL. It ÍS GlTOr for the trial court in a criminal cause, after the argument of the cause and in the absence of the defendant and his counsel, to give to the jury an additional instruction, though this is done in open court; and a judgment convicting the defendant must be reversed therefor, unless it clearly appears that such additional instruction wrought no prejudice to him. And held, that a reversal should result therefrom in this cause, though the additional instruction could properly have been given in the first instance.</p>

<p>Appeal from Washington Circuit Court. — Hon. J. F. Green, Judge.</p> <p>(1) The court erred in refusing to consider and in dismissing the motion for alimony. Alimony pendente lite is allowed as a matter of course upon proof of marriage and pendency of the suit. Smith v. Smith, 2 Phill. 158; Frith v. Frith, 18 Ga. 272; 2 Bishop on Marriage & Divorce, sec. 387. . Generally, whether alimony shall he allowed at’ all is a matter of law, and how much shall be allowed is a matter of sound discretion. Methvin v. Methvin, 60 Am. Dec, 664, and notes. WMe permanent alimony can only be granted as an incident to divorce, temporary alimony — sustenance of the wife and reasonable attorney’s fees — is awarded almost as a matter of course, in order that the wife may stand before the tribunal, which administers one law alike to husband and wife, on an equal and common ground with him.' Bishop on Marriage, & Divorce, supra. The plaintiff was entitled to have her motion considered by the court before the trial of the case, and the fact that, upon a suggestion of the court, she consented that its consideration might be postponed, did not affect her right to a reasonable allowance to meet the expenses of litigation already incurred. McDonald v. Waggener, 5 Mo. App. 58; McEntyre v. McEntyre, 80 Mo. 470. The dismissal of the bill and cross-bill did not operate as a dismissal of the motion for alimony; but it was the duty of the court to make an allowance to the plaintiff. Waters v. Waters, 49 Mo. 385. (2) It has been decided in this state {State ex rel. v. Seddon, 93 Mo. 520) that an order making an allowance for alimony pendente lite is a final order from which an appeal will lie, and it logically follows that an order dismissing an application for alimony is a final one, from which an appeal may be prosecuted.</p> <p>(1) The power of the court to allow alimony “ pending the suit for divorce ” is not questioned, and the right to grant it in all cases where the same would be just is also conceded. But where the wife is plaintiff, the cause heard on its merits, and she denied a divorce, the court has no power to decree to the wife “suit-money” — money to pay the expenses of a litigation which has been adjudged by the court to be without merit. R. S. 1889, sec. 4505; Dawson v. Dawson, 37 Mo. App. 212, et seq.; State ex rel. v. Seddon, 93 Mo. 522; Wagner v. Wagner, 34 Minn. 441;’ Newman v. Newman, 69 111. 167; Wilde v. Wilde, 2 Nev. 306; Perry v. Perry, 2 Barb. Chan. 285; Krause v. Krause, 23 Wis. 354; Wood v. Wood, 2 Paige, 454; ChesMutv. •Chestmit, 77 111. 346; 2 Bishop on Marriage & Divorce [6 Ed.] seo. 416; Bishop on Marriage, Divorce & Separation, sec. 955; Hcvrvell v. Harvell, 39 Ind. 185; Dmn v. Dunn, 13 P. D. 91. (2) Aside from the fact that the court had no authority to render a judgment for suit money against defendant on the day after the wife had been refused a divorce, the ruling of the court was right. No testimony introduced in support of the motion haí1 been preserved, and the bill of exceptions filed herein does not pretend that the attorneys (five of them) for plaintiff have not been paid, nor do these gentlemen in their brief even assert that they have not been paid, nor did they, at the time the court decided the case and refused the plaintiff a divorce, complain or object or except, nor did they until the next day say one word about the motion for alimony.</p>

<p>Appeal from the Butler Circuit Cowt. — Hon. John GL Weak., Judge</p>

<p>Error to the. Franklin Circuit Court. — Hon. Rudolph Hirzel, Judge.</p>

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

<p>Appeal from the Greene Circuit Court. — Hon. W. D. Hubbard, Judge.</p>

— Hon. W. I. Wallace, Judge. (1) The verdict is so opposed to the evidence, that it must be attributed to bias, prejudice or passion, and, accordingly, ought not to be upheld. Price v. Kvans, 49 Mo. 396; Rosev. St. Charles, 49 Mo. 509; O’Donnell v. Railroad, 7 Mo. App. 190; Borgraefe v. Knights, 22 Mo. App. 127; Brum v. Pair Ass’n, 40 Mo. •App. 425.

<p>Jurisdiction, Appellate. An action for the partition of land, in •which, the plaintiff’s title, and, therefore, his right to a partition, is denied hy one of the defendants, involves title to land, and the ' supreme court has jurisdiction of an appeal hy such defendant from a decree of partition therein.</p>

<p>1. Landlord and Tenant: holding over after expiration of lease. When a tenant holds over after the expiration of a written lease, the law, in the absence of a contrary provision by express contract, implies that he holds over subject to the terms of the lease, as far as the same are applicable to a monthly letting.</p> <p>2. -: -: right of grantee of reversion. If the landlord sells and conveys the reversion after the expiration of the lease, his grantee acquires a right of action for a subsequent breach of the terms of letting thus implied, but none for. a breach occurring prior to. the conveyance. The purchaser in such case acquires only a right to the premises in the condition in which they are at the time of conveyance.</p>

<p>1. Attachment, Grounds for: fraudulent contraction of debt. If a debtor contracts a debt with the preconceived intention not to pay it, the debt is fraudulently contracted within the meaning of the statute defining the grounds for attachment, and the creditor is accordingly entitled to a writ of attachment in aid of his suit thereon.</p> <p>2. -: -:: • circumstantial Evidence. The existence of an intention on the part of the debtor never to pay the debt may be established by circumstantial evidence.</p>

<p>1. Liability of Master for Tortious Act of Servant. A master is responsible for the tortious act of his servant, if such act was within the seope of the servant’s employment, or is shown either directly or inferentially to have been authorized by the master.</p> <p>2. --: implied authority from master. The fact that the act of the servant is unlawful will not prevent the implication of an authority for the commission of it from the employment itself. The test is not the lawfulness or the unlawfulness of the means adopted by the servant to accomplish his master's business, but it is whether such means are so far incident to the employment as to come within its seope. And held, in the ease at bar, that authority to servants to deposit rubbish, produced by the master’s business, in the street in front of the master’s premises carried with it the power or duty of removing the same, and that in burning it in the street the servants acted within the scope of their authority.</p> <p>'3. -: SUFFICIENCY OF EVIDENCE OF AUTHORITY FROM MASTER. Held, also, that proof, that the servants were accustomed to burn the rubbish thus deposited in the street by them, was some evidence of express authority from the master to them to thus dispose of the rubbish.</p> <p>-: instructions. An instruction is erroneous, if it authorizes a recovery against the master for the tortious act of his servants without requiring any finding that the servants acted within the seope of their employment or by authority from the master, where this is controverted.</p> <p>-5. Instructions: omission of essential condition to right of action: effect of other INSTRUCTIONS. If an instruction given' for the plaintiff, which undertakes to state the conditions upon which his right of action is predicted, omits an essential element to such-right of action, the existence of which is in dispute,- the error is not cured by another instruction given for the defendant, which mentions that element as one of the conditions preeédent to the plaintiff’s right ■of recovery.</p> <p>6. Pleading: contributory negligence. Contributory negligence is an affirmative defense, and, if relied on, must be pleaded. If not pleaded, the question of its existence should 'not be submitted to the jury as an issue of fact; in such case it will only debar a recovery by the plaintiff, when it is conclusively established by the evidence of the plaintiff himself.</p> <p>7. -: master and servant. In stating a cause of action against a master for the tortious act of his servant, it is not necessary to expressly aver that the servant acted within the scope of his employment or by authority from his master; an allegation, that the defendant by its servants or agents was guilty of the negligent act complained of, implies that the act was done about the master’s business and within the scope of the servant’s employment.</p>

<p>Appeal from the Lawrence Circuit Cowrt. — Hon. M. G-. MoG-degor, Judge.</p>

<p>Appeal, from the■ St. Louis County Circuit Court. Hon. W. W. Edwards, Judge.</p> <p>The circuit court of St. Louis county never acquired jurisdiction in the cause, and the judgment rendered herein is void. Brown v. Woody, 64 Mo. 547. There must be an order from the court below granting an appeal, • and unless such order appears on record the •case must be stricken from the docket. Waddell v. Blachstone, 59 Mo. 120; R. S. 1889, sec. 6332. An appeal from a justice is not taken, until a recognizance is entered into and approved by the justice. Slater v. .Steamboat, 10 Mo. 513; Filley v. Walls, 4 Mo. 271; Cochran v. Bird, 2 Mo. 141; James v. Bobinson, 1 Mo. •595; R. S. 1889, secs. 6328., 6329. The recognizance is void, if not approved by the justice. Gochrill v. Owen, 10 Mo. 287. In all classes of appeals' from one court to •another it is a fundamental principle, that it is essential to the jurisdiction of the appellate court that the appeal was taken within the time and in the manner prescribed by law, and that, where it is not so taken, the appellate •court has no jurisdiction to proceed to an examination •of the merits, but must strike the cause from its docket, where there are no statutory directions to do otherwise, ■ or dismiss the appeal, or affirm the judgment where there is a statutory direction to take this course.. Green v. Costello, 35 Mo. App. 134.</p>