Volume 5 — Missouri Appeal Reports

<p>1. A court of equity has no jurisdiction to appoint a receiver for a corporation, since such action would work an amotion of the officers and a dissolution of the corporation, and equity cannot accomplish indirectly what it has no power to do directly.</p> <p>2. Where a jury is not demanded on either side, and the cause proceeds to trial before the court without objection, the fact that the parties had a right of trial by jury is not a ground for reversal'where the point was not made below, at least by motion in arrest.</p> <p>3. Where a petition states, consecutively and in connected form, a good legal ground of action, it does not become a bill in equity merely because the prayer improperly asks for equitable relief, but that part of the petition relating to the remedy, if separately stated, should be rejected as surplusage.</p> <p>4. Where it is apparent from the record that the facts are all before the appellate court, and that there is nothing more to try, the cause will not be remanded when reversed, but final judgment will be entered by the appellate court.</p>

Louis Circuit Court. Plaintiff can recover only for damages -which are the natural and proximate consequences of defendant’s acts. Clark v. Pacific R. Co., 39 Mo. 191; Ballentine v. North Missouri R. Co., 40 Mo. 505; Bdelmann v. St. Louis Transfer Co., 3 Mo. App. 503 ; Pearson v. Duane, 4 Wall. 605. Plaintiff could recover only for the cost of a conveyance to take her home. — Waters v. Brown, 44 Mo. 302; The State v. Powell, 44 Mo. 436 ; Brown v. Emerson, 18 Mo. 103.

<p>1. A court cannot arrest a judgment except for some intrinsic cause apparent upon the face of the record, and where there is enough apparent to enable the court to give judgment upon the whole record, it will never arrest the judgment.</p> <p>2. In an action on a bond, for a breach of a condition for the payment of money, where the finding is for the full penalty of the bond, judgment will not be arrested for failure to make a special entry of the amount of the execution.</p> <p>3. In an action on a bond, where the breach assigned is that the county auditor converted to his own use the county school-fund, and it is further alleged that he did not secure to each township its share of the school-fund so converted, there is but one breach assigned, and there is no misjoinder, the latter allegation being no additional ground for damages.</p> <p>4. The State is trustee of the school-fund, and in an action on an auditor’s bond who has converted this fund to his own use, the action may be brought in the name of the State to the use of the county, the question as to whether the county or the school-districts therein is the real cestui que use of the fund not being a matter which concerns the obligors in the bond; and such question cannot be set up by them as a defence to the action.</p>

Louis Circuit Court. The charter of tbe bank could not exempt it from regulations made in the exercise of the police power of the State. — Cooley’s Const. Lim. 575; The State v. Matthews, 44 Mo. 528. Where the officers of a corporation perpetrate a fraud in its name, they are responsible to the party injured, in a civil action for the damage. — 7 Mass. 187 ; Salmon v. Richardson, 30 Conn. 373.

Charles Circuit Court. The burden of proof as to undue influence rests upon defendant. — Street v. Goss, 62 Mo. 226. Equity will, in cases like the present, extend the term of legal disability beyond the technical majority of the ward. — Garvin’s Administrators v. Williams, 44 Mo. 465; 50 Mo. 206; Huguenin v. Baseley, 3 White & Tudor’s Ld.

<p>1. A petition which states that plaintiff was .employed by defendant for one year, at a stated price per month; that plaintiff worked for “several months” under the agreement, and was willing to work the remaining period of the term, but that “defendant failed and refused to comply in any manner with the terms of the contract,” and “failed and refused to pay plaintiff for the services rendered; ” and which asks for judgment for the year’s salary, is bad for failure to set up facts constituting a cause of action, and advantage may be taken thereof by motion in arrest.</p> <p>2. Though the breach alleged may justify plaintiff in abandoning the work, and; may entitle him to recover for the services performed, it will not authorize-. a recovery for the work unperformed.</p> <p>3. Under such a petition, it is error to admit testimony that defendant refused to carry out the contract by failing to comply with the law of the State where plaintiff was employed to work, thus rendering it impossible for plaintiff to act without exposing himself to a criminal prosecution. The pleadings gave defendant no notice of the character of the evidence, se that he might prepare to meet it.</p>

<p>A wife instituted suit fox' divorce, and her attorney, acting as peace-mater, at the request of the husband, effected a reconciliation between the parties, and persuaded the wife to dismiss the suit; the husband then executed to the attorney his note, part of the consideration therefor being for services rendered to the wife in the divoi-ee suit, and part for services rendered to the husband in compromising the same. Held, in an action on the note by the payee against the maker, that no recovery could be had on the note, the consideration therefor being void in so far as it was for services rendered to the husband.</p>

<p>1. In an action of trespass de bonis asportatis, where no element of fraud, malice, oppression, or gross negligence appears, and where there is no evidence of actual damage, only nominal damages can he recovered.</p> <p>2. The mere wrongful asportation of a chattel, without any intention of appropriating it, or of depriving the owner of it, does not amount to a conversion.</p> <p>3. In trespass de bonis asportatis, the measure of damages is the value of the goods at the time of the trespass, hut if there is no evidence as to their value, only nominal damages can he recovered.</p>

Louis Circuit Court. cited: Merrity'v. Railroad Oo., 12 Barb. 605; Walker v. Railroad Oo., 57 Mo. 275; Evans v. Railroad Oo., 64 Mo. 453. Possession being taken of ground for a railroad under a verbal permission from the owner makes the dedication complete. — Wag. Stat. 326, sec. 1. The right taken by the railroad in the land is an easement. —Kellogg v. Molin, 50 Mo. 496. And may be given verbally. — Seifert v. Withington, 63 Mo. 577.

<p>Appeal from St. Louis Circuit Court.</p> <p>Waiver. — Thompson-v. Insurance Go., 52 Mo. 469; Walsh v. Insurance Go., 30 Iowa, 133; Buckbee v. Insurance Go., 18 Barb. 581; Erolich v. Insurance Go., 47 Mo. 406 ; Ruse v. Insurance Co., 26 Barb. 566 ; Helm v. Insurance Co., 61 Pa. 107; Home Life Ins. Co. v. Pierce, 75 111. 426. Principal -and agent. — Wing v. Hawey, 5 De M. G. & G. 216; .2 Big. Life Ins. Cas. 165 ; Hodsden v. Insurance Co., 97 Mass. 144; Lean v. Insurance Co., 4 N. Y. Sup. Ct. 497.</p>

Louis Circuit Court. The discharge in bankruptcy of the principal will not release the surety on art appeal-bond executed before institution of the bankruptcy proceedings. — Wilson Y.Oity Bank, 17 Wall. 473; Merritt y. Olidden, 39 Cal. 559 ; Bond v. Gurdain, 4 Binn. 269 ;. Holyoke y. Adams, 2 N. Y. 1. A composition under the-Bankrupt Act only exonerates the bankrupt, and does not; discharge his co-obligors or sureties. —Mason & Hamlin Organ Go. y. Bancroft, 4 Cent.

Louis Circuit Court. The assignee of a lease is liable only by reason of the privity of estate.— Taylor’s L. & T. secs. 436, 443; Astor v. Miller, 2 Paige, 68; Van Rensselaer v. Jones, 2 Barb. 653 ; Weidner v. Foster, 2 Pa. 23.

Louis Circuit Court. Where the officer taking the acknowledgment fails to make the feme covert acquainted with the contents of the instrument, the acknowledgment is defective. — Wag. Stat. 275, sec. 13; 1 Pars, on Con. 400. As to requisites of assent. — Chauvin v. Wagner, 18 Mo. 544; Harristone v. Randolph, 12 Leigh, '445; Hughes v. Lane, 11 111. 121; Chestnut v. Shane, 16 Ohio, 614.

Louis Circuit Court. The effect of a deed to husband and wife depends, not on the terms of the deed, but upon the fact that the grantees are in fact husband and wife, and that the conveyance is made to them jointly; for if made to them as tenants in common, they take as such. — Gibson v. Zimmermann, 12 Mo. 385; Jackson v. Stevens, 16 Johns. 110 ; Doe v. Parrott, 5 Term Rep. 652.

Louis Circuit Court. cited: Waters v. Waters, 49 Mo. 385, and cases cited ; Wag. Stat., chap. 46, secs. 6, 13. A judgment cannot be attacked for error or irregularity upon a motion to quash an execution issued thereunder. — Judge v. Judge, 38 Mo. 159 ; Harvey v.Tyler, 2 Wall. 328 ; Hendricksonv.Railroad Oo., 34 Mo. 188. Execution under decree for alimony.— Schmidt v. Schmidt, 26 Mo. 235; Waters v. Waters, 49 Mo. 385; FouUe v. Colburn, 48 Mo. 225.

Louis Circuit Court. The claim and possession of Carondelet, by force of the act of June 13, 1812 (2 U. S. Stat. 748), vested in it the fee to the land in controversy.— .Bird v. Montgomery, 6 Mo. 511; Chouteau v. Kckhardt, 2 How. 421; Guitard v. Stoddard, 16 How. 494 ; West v. Cochran, 17 How. 413.

Louis Circuit Court. A widow is not entitled' to dower until her husband’s debts shall have been paid.— Kennedy v. Insurance Go., 11 Mo. 204; Montrose v. Vallé, 19 Mo. 621. A covenantor is not liable for the increased value of property. — Slaats v. Ten Fydc, 3-Caines, 111; Pitcher v. Livingston, 4 Johns. 1. But only for the value at the time of the purchase. — McLanahan v.. Porter, 10 Mo. 746.

Louis Circuit Court. A conveyance made-with the intent to avoid the payment of debts is void; and this intent may be proved by facts and circumstances happening prior and subsequent to the conveyance.— Bump’s. Fr.

Louis Circuit Court. A change of the contract by the principals, in any particular, releases the guarantor, if made without his consent. — Whitcher v. Hall, 5 Barn. & Cress. 269 ; Taylor v. Johnson, 17 Ga. 534; Rowan v. Sharp Rifle Go., 33 Conn. 22 ; Blairs. Insurance Co., 10 Mo. 566 ; Morgan v. Martien, 32 Mo. 443 ; Ide s. Churchill, 14 Ohio St. 383; Millers. Stewart, 9 Wheat. 702.

<p>1. An insurance company cannot, even with, the consent of the stockholders, make a valid voluntary assignment of its property, and thus withdraw itself and its property from the control of the Insurance Department of the State, after it has violated the laws made for the regulation of insurance companies. Such an assignment would he in fraud of those laws. Before suit is brought by the superintendent of the Insurance Department, under the statute, an insurance company whose capital stock is impaired may make itself sound; but while it attempts to do business upon an unsound basis, it is acting in fraud of the law; and while it fails to repair the deficiency, the interests of the policy-holder and the public are, by the law, intrusted to a court of equity under provisions created for the case, and the jurisdiction of the court cannot be ousted at the will of the offender. The State is a party to the proceeding, and a full exposure of frauds, if any exist, is essential to the purposes of the State in enacting the law.</p> <p>'2. The legal results of fraud upon the law cannot be indirectly avoided. Though the law relates only to “ insurance companies doing business in this State,” a company, having violated and acted in fraud of the law while doing business in this State, cannot avoid its penalties by making an assignment, or by ceasing to take new risks, or by any other subterfuge resorted to for the purpose of evading the provisions of the statute for exposure and punishment.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited : Baker v. Black, •30 Mo. 225; Biddle v. Boyce, 13 Mo. 533.</p> <p>cited : Gardiner v. Walsh, •5 El. & Bl. 82 ; Hall’s Administrator v. McHenry, 19 Iowa, •523 ; Wallace v. Jewell, 21 Ohio, 171; Henry v. Coates, 17 Ind. 161; Haskell v. Champion, 30 Mo. 138; Hvans v. .Foreman, 60 Mo. 450.</p>

Louis Circuit Court. The personal property is the fund primarily liable for the payment of the debts. This embraces not only debts due-the testator in his lifetime, but also rents collected from his-tenants after his death by his executor. — Brant’s Will, 40-Mo. 266 ; Logan v.Oaldwell, 23 Mo. 373 ; Gen. Stat. 1865, p. 493, secs. 48, 49.

The rule validating the acts of defacto officers may be applied where the legal office has ceased to exist, where the would-be officer, under a mistake of fact, holds under color of right, such as would naturally lead men to suppose he was a legal officer. — The State éx rel. v. Sutton, 3 Mo. App. 388 ; The State v. Carroll, 38 Conn. 467; Rex v. Bedford, 6 East; The State ex rel. v. Finn, 4 Mo. App. 347.

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Davis, etc., Bank v. Sailor, 68 Mo. 24; Harrigan v. First National Bank, Ch. Leg. N., Dec. 22, 1877; Foster v. Essex Bank, 17 Mass. 479; Salem Bank v. Gloucester Bank, 17 Mass. 1; Mechanics’ Bankv. Bank of Columbia, 5 Wheat. 326; Merchants’ National Bank v. Sells, 3 Mo. App. 85.</p> <p>A representation officially made by an officer or agent of a corporation is to be deemed the representation of the corporation itself.— Mechanics’ Bank v. Schaumburg, '38 Mo. 244; Christian University v. Jordan, 29 Mo. 68 ; Moore v. Bank of Commerce, 52 Mo. 377 ; Lunstross v. Insurance Co., 57 Mo. 109 ; Mussey v. Eagle Bank, 9 Mete. 313 ; Merchants’ Bank v. State Bank, 10 Wall. 644. Proof of authority is unnecessary.— North, etc., R. Co. v. Winkler, 33 Mo. 354. The bank may limit the authority of the teller as they deem proper, but this will not affect those to whom the limitation was unknown. — • Commercial Banky. Norton, 1 Hill, 501; Banky. Warren, 7 Hill, 94 ; Beers v. Phoenix Glass Co., 14 Barb. 358 ; Farmers’, etc., Banky. Butchers’, etc., Bank, 14 N. Y. 624 ; Barnes v. Ontario Bank, 19 N. Y. 156 ; Mead y. Merchants’ Bank, 25 N. Y. 146.</p>

<p>The charter of the Company of Firewardens of the City of St. Louis, an incorporated body, granted its members who had served as firewardens seven, years’ exemption from jury duty, but expressly reserved the power of repeal. Held, that the members who had served seven years did not thereby acquire vested rights to exemption from jury duty; that the repeal of the exemption clause did not impair the obligation of contracts; and when repealed, the members were liable to jury duty.</p>

<p>WheTO it is provided by tbe charter of incorporation that each stockholder of the corporation shall be liable to the corporation creditors “to the amount of his stock, and no more,” the mere fact of his haying paid to the corporation the full amount of his stock subscription is no defence to an action by such creditor against him after the dissolution of the corporation, but he is, notwithstanding such payment, still liable to the creditor to the full amount of his stock.</p>

<p>A life-insurance policy contained a clause that “ if the assured shall die by-suicide, or in consequence of the violation of any law, * * * or shall be convicted of a felony, the policy shall become void.” The assured was killed while in the act of committing an unprovoked assault upon another, under circumstances which rendered the killing justifiable homicide. Held, that the death having resulted in consequence of the commission, by the assured, of a crime, the character of which directly increased the risk, there could be no recovery on the policy; and this, though the-crime may have been beneath the grade of a felony.</p>

Louis Circuit Court. If, owing to the fact that the trustee was also the appellant’s secretary, the company is to be treated as a mortgagee buying at its own sale, the respondent has the right to redeem, and nothing more. — Landrum v. Union Bank, 63 Mo. 48; Gooden. Comfort, 39 Mo. 327 ; Allen v. Ransom, 44 Mo. 263 ; Red-dick v. Gressman, 49 Mo. 389 ; Thornton v. Irvin, 43 Mo. 153; McKees v. Swaney, 50 Mo. 388.

<p>1. One office of instructions is to define the issues, and to exclude from the jury questions foreign to the case. The giving of an instruction is a declaration by the court that it is relevant to the issues; and where it presents contingencies not in the case, it is erroneous.</p> <p>:2. Where the defendant, by the pleadings, admits the receipt of money, but denies that it was received as a loan, the point in issue on the trial being whether the money received was a loan, it is error to instruct the jury that the burden is on the defendant to show that the money received was not a loan.</p> <p>•3. Where plaintiff alleges that he was hired by defendant as book-keeper for a specified time, and defendant’s testimony tends to show that the services alleged to have been rendered as employee were the acts of a partner in his own business, it is error to refuse an instruction which requires the jury to find upon what agreement and in what capacity the services were rendered. While the pleadings and proofs present the two theories of services rendered as employee and acts performed as partner, there can arise no implication of a promise to pay for such services or acts.</p>

<p>1. The question as to whether a contract, alleged to have been made, was made, is a question for the jury, to be determined from the evidence of what the parties said and did, and not from the understanding of one of the parties of what he said or did.</p> <p>2. Where a party to an oral contract has knowledge that the other party places a particular construction upon a doubtful term, and allows work to proceed on the basis of a perfected contract, without explanation, he will be estopped from denying the contract as understood by the other party.</p> <p>3. Where the verdict is plain, and there can be no doubt as to its meaning, the fact that the jury failed to add interest to principal is immaterial. The clerk may make the addition, and enter judgment for one sum.</p> <p>4. A judgment will not be reversed merely because evidence was introduced out of its proper order.</p>

Louis Circuit Court. cited: Perry on Tr. 400, sec. 619 ; Lewin on Tr. 519 ; Lee v. Brown, 4 Yes. 362. The trustee, under tlie power in the will, had a right to advance money to the beneficiary, and is entitled to-reimbursement therefor out of the trust-éstate. — 2 Perry on Tr., sec. 485; Iredell v. Langston, 1 Dev. Eq. 392;. Balsh v. Ilyham, 2 P. Wms. 455.

Louis Circuit Court. The note offered in evidence as the note sued on was not such a note as described in the petition. It was the individual note of Charlie Thaw, and the court should not have allowed it to be read in this action. — Story on Prom.

<p>1. A fixture is in its nature a chattel, but must have been so planted in or attached to the soil as to have become, in contemplation of law, a part of it, so that it cannot be removed without the consent of the owner, and partakes of all the legal incidents of a freehold.</p> <p>2. Where a thing which is adapted to the use of that part of the realty to which it is connected is annexed, either really or constructively, to the realty, with the intention, on the part of the party making the annexation, to make the article a part of the building itself, it is a fixture; but each particular case of fixtures must be determined by its own facts, and is more for the jury than for the court.</p> <p>8. For the purposes of the mechanic’s-lien law, the rules applicable between heir and executor should be applied, and that only should be considered a fixture which is so attached as to become a part of the building which is itself a part of the realty.</p> <p>4. Furnaces weighing 2,500 pounds were, during the course of the erection of a building, put into it, in sections, cemented to their place on brick foundations built for them on the ground floor; furnished therewith, and part thereof, were smoke-flues connecting with flues in the walls of the house, and hot-air ducts or flues passing through the house, into register-boxes cut for them in each story, and firmly fastened, making provision for heating the entire building, there being no other provision for heating it. JEXeld, that the furnaces, smoke-flues, and air-ducts were a connected whole and a part of the realty, for which a mechanic’s lien would lie.</p>

<p>A store was leased, in writing, the lease containing a stipulation that the lessee should pay double rent for every day he held over after the expiration of the term; and the lessee held over. Held, that the continued occupation being permitted by the lessor, the terms under which the lessee occupied were fixed by the terms of the lease; the tenancy was not from month to' month; the lessor was not entitled to one month’s notice of the lessee’s, intention to quit; and the lessee was bound to pay double rent for every day he held over.</p>

<p>Under the tenth rule of practice of the St. Louis Circuit Court, the adverse party is required, within three days after the hill of exceptions is handed to him, to present .his objections thereto, with the alterations demanded. "Where this is not done, the judge may, for good cause shown, extend the time within which such objections are to he presented; and he is not hound to sign, as a hill of exceptions, a paper which is unfair, untrue, or insensible. It is the duty of the trial judge to see, not only that the bill of exceptions is true, hut that it is intelligible; and this without reference to the adverse party’s waiver of his objections to the bill of exceptions as offered.</p>

Louis Circuit Court. Appellant, being in possession of the premises, committed no trespass. — MeMenamy v. Collide, 1 Mo. App. 529. Where there is no intentional injury, actual damages only are recoverable. — Franz v. Hilderbrand, 45 Mo. 121; Walker v. Borland, 21 Mo. 289 ; Robinson v. Rupert, 23 Pa. St. 524 ; Perkins v. Hadeelman, 26 Miss. 41.

<p>The negligence of a railroad company’s servants in not ringing the bell of the locomotive at a point at which the law requires that it be done, and at which plaintiff was injured by being run over by the locomotive, it not appearing that there was any negligence in not stopping the train before the collision, will not authorize the recovery of damages for such injury,' when the proximate cause of the injury appears to be plaintiff’s negligence in standing near the track, with his back to the locomotive, in such a position as to be liable to be struck by it, at a moment when he was expecting the train and knew that it was about to arrive, when, had he listened, he could have heard the whistle of the locomotive, which had sounded but a moment before, and when, had he looked, he could have seen the train for the distance of half a mile from the point of the accident.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>Where there is ne proof that the agent ivas acting within the scope of his authority, his declarations are not admissible against his principal. — 1 Greenl. on Ev., sec. 114. The question of authority is one of evidence. — Slevin v. Rippey, 46 Mo. 606. Where it clearly appears from the record that the •verdict is against the evidence, against the law, and in flagrant disregard of the evidence and instructions, the appellate court will set aside the verdict. — Hart v. Leavemoorth, 11 Mo. 629 ; Rose v. St. Charles, 49 Mo. 509; Court, etc., v. Sprague, 3 K. I. 205 ; Rathbone v. Stanton, 6 Barb. 141; Sweany v. Bledsoe, 8 Humph. 612. The positive testimony of an unimpeached and uncontradicted witness cannot be discredited or disregarded arbitrarily or capriciously by court or jury. — Seibert v. Railway Co., 49 Barb. 583; Kelly v. Jaclcson, 6 Pet. 622; United States v. Wiggins, 14 Pet. 334.</p>

Louis Circuit Court. Property not owned and not in existence at the time of the making of the mortgage cannot be conveyed thereby, except in cases where it is but an incidental and necessary addition to property in existence at the time of the execution of the mortgage. — Dunn v. Thornton, 1 C. B. 379; Barnard v. Baton, 2 Cush. 294; Pettis v. Kellogg, 7 Cush. 471; Winslow v. Insurance Oo., 4 Mete. 306; Otis v. Bill, 8 Barb. 102; Goodenow v. Dunn, 21 Mete. 96.

<p>1. 'Whan a contract in writing expresses, and its operation depends upon a contingency, upon the happening of the contingency there is a meeting of the parties’ minds, and the contract need not be rewritten. A lease so made is a contract in writing within the meaning of the Landlord and Tenant Act.</p> <p>2. A lease for a term of throe years, rent payable monthly, contained a clause giving the lessee the privilege of renewal for a period of ten years more on the same terms. At the expiration of the term of three years the lessee continued in possession, and paid rent as before for live years and eleven months, at the expiration of which time he gave the lessor one montlf's notice of his intention to vacate the premises at the end of the year. Held, that at the expiration of the first term, the lessee held over under the terms of the lease; that by his acts he accepted the privilege of renewal, giving the lease an extended operation according to its terms; and that a new lease was unnecessary.</p>

<p>1. A charter, granted under a law which provides that, where no period is limited in its charter, every corporation shall have succession for twenty years, contained a provision that the corporation and its successors “shall have perpetual succession.” Held, that no measure of duration is intended hy the word “perpetual,” as thus used, hut only unbroken continuity ; and that, as no period was limited in the charter, the corporation ceased to exist at the expiration of twenty years.</p> <p>2. An order of execution against a stockholder, under the provisions of the statute, is a nullity if the corporation had ceased to exist when the judgment against it was rendered.</p>

<p>1. The relation between a bank and its depositor on current account is that of debtor and creditor. When payment upon a discount by the bank to a depositor creates an indebtedness on the part of the latter, all the funds which the bank has to his credit may bo applied upon such indebtedness until it is fully discharged.</p> <p>2. The payee of a draft deposited the same for discount at a bank of which he was a regular depositing customer, and received credit for the proceeds. At maturity the draft was dishonored, and the payee was charged with the amount due thereon, and received notice thereof from the bank. At the time of the dishonor, the payee had on deposit to his credit in the bank a sum larger than the amount due on the draft. The payee returned the draft to the bank, with the request that it bring suit thereon in its own name against the acceptors; which the bank did, after crediting the payee by the draft. Held, that the draft was received by the bank after dishonor, or that it was acting as the payee’s agent, and that, in either case, the acceptors were entitled to inquire into the consideration between the payee and themselves.</p>

Louis Circuit Court. The agreement did not preclude the appellant from transporting railway cars, loaded with freight or occupied by passengers, to or from the railroad, or from employing others to do so, or from ferrying, or employing others to ferry, in any mode, between places-where the respondent had no ferry, and had no right to have-one ; nor did the agreement preclude the appellant from employing any ferry service not in existence when the agreement was made, and…

Louis Circuit Court. Upon the-pleading’s in this case, under the Practice Act, this cause was triable only by the court, and could not be tried by a jury, even by consent. — Wag. Stat. -1041, secs. 12, 13; 2 Nash’s PI. & Pr. 364; Bray v. Thatcher, 28 Mo. 133; Oowanv. Sellew, 28 Mo. 330; Morris v. Morris, 28 Mo. 117; Hunter v. Whitehead, 48 Mo. 124; Meelcs v. Senden,. 54 Mo. 130. Principal and agent. — Coal, etc., Co. v. Railroad Co., 35 Mo. 85.

<p>1. The question of will or no will is one for the jury, under proper instructions from the court; and where the law of the case is declared with substantial accuracy, the verdict of the jury will not be disturbed by an appellate court.</p> <p>2. Where a will is made in favor of a religious institution by one in extremis, and who died in the hospital of such institution, the instrument being drawn by one acting as chaplain in the hospital, where there is evidence from which want of sound and disposing mind, or the existence of undue influence which destroyed the freedom of the will might fairly be inferred, and where, without apparent reason, the will ignores a natural heir and misdescribes the testator’s nearest relatives, a verdict against such a will will not be set aside as against the evidence.</p> <p>3. In such a case, slight circumstances may furnish sufficient legal warrant for an inference against the will; and if the jury draw such an inference, it is fatal to the will.</p> <p>4. In a case of a contested will, an instruction which takes from the jury the question of undue influence, or which tells the jury that in case of doubt they must find in favor of the will, is erroneous.</p> <p>5. In such an action, declarations of the testator contained in a will executed three years before are competent as tending to show the testator’s intentions at that time.</p> <p>6. On cross-examination, a witness may be compelled to answer any questions which tend to test his credibility, or to shake his credit by injuring his character, however irrelevant to the facts in issue, or however disgraceful the answer may be to himself, except where the answer would expose him to a criminal charge.</p>

<p>1. To support a recovery on the ground of negligence in failing to comply with an alleged business custom, it must appear that the custom was general and well established, so as to raise a presumption that defendant knew it, or that he had actual knowledge of it.</p> <p>2. One in the regular discharge of a duty, using proper care, and having taken ordinary precautions to prevent an accident, is not liable for damage resulting from the accidental breaking of a tool being used by him.</p> <p>3. It is negligence to leave glass exposed in the lower story of a building in course of construction, in a position where workmen are carrying and using materials and tools over the unfloored rafters above.</p>

<p>A firm indebtedness may be set off against a claim by an individual member of the firm. When the statute speaks of the mutuality of the demands to be set off, it means merely that the indebtedness must be such as to entitle plaintiff to an action against defendant, and defendant to an action against plaintiff.</p>

Louis Criminal Court. The admission of testimony that a witness in the case had been tampered with, where there is a failure to connect the accused therewith, is error, and ground for reversal..— The State v. Mix, 15 Mo. 153 ; The'State v. Wolf, 15 Mo. 168 ; The State v. Marshall, 36 Mo. 400 ; The State v. Daubert, 42 Mo. 240.

<p>1. A petition for a mandamus alleged that the jury were instructed that, under the pleadings and evidence, the plaintiff was not entitled to recover; that the plaintiff refusing to take a nonsuit, the cause was submitted to the jury, who returned a verdict in due form for plaintiff, which the court refused to receive, directing- the jury to retire and return a verdict for defendant, which was done, and upon which judgment was entered. Held, that the petition sets forth no sufficient ground for issuing a writ to compel the trial judge to receive and record the first verdict.</p> <p>2. Whore an instruction in the nature of a demurrer to the evidence is given, the facts are thereby taken from the jury; there is nothing for them to pass upon ; their action is merely formal; and they are bound to render the verdict as directed, the judge alone being responsible for it.</p>

In capital cases, the jury should not separate after being empanelled. — McLean v. The State, 8 Mo. 154; The State v. Brown, 33 Mo. 483. And the city of St. Louis is liable for the expense of boarding a jury while so kept together, as for other necessary expenses of the St. Louis Criminal Court. — The State v. Maus, 41 Mo. 470. The city is not liable for food furnished jurors serving in the Criminal Court. — Acts 1874, p. 238 ; The State v. Olark, 57 Mo. 25.

<p>In a proceeding before a justice of tbe peace to recover possession of leased premises, under the Landlord and Tenant Act, in the city of St. Louis, the fact that the justice before whom the suit was brought was a justice of the ward in which the property was situated, or in an adjoining ward, being an essential jurisdictional fact, will not, on appeal, he presumed, hut must appear from the complaint, or from other papers in the case.</p>

Louis Circuit Court. The burden of proof of negligence is wholly upon plaintiff, and negligence cannot be presumed from the fact that an accident and an injury have occurred. — Schultz v. Railroad Co., 37Mo. 32. The child was upon defendant’s track in violation of law. — Wag. Stat. 311, sec. 43. It is presumed that every one will obey the law. — 2 Keyes, 161; Pennsylvania R. Go. v. Hummed, 44 Pa. St. 377; Bro.wn v. Lynn, 7 Casey, 510; Reeves v. Railroad Go., 6 Casey, 454.

<p>1. Where the law requires a certain tiling to be done, contract or usage may omit it by providing a substitute; but if the thing required be done, there is no need for the substitute. Where there has been due presentment of a check to the drawee, and payment demanded and refused, the drawer, if otherwise liable, is not discharged because of a failure to present the check at the clearing-house, in accordance with a mercantile usage, though it would have been paid had it been so presented.</p> <p>2. Where the petition states a mere conclusion of law from the facts alleged, a demurrer to the petition does not admit the conclusion.</p>

Louis Circuit Court. A misrepresentation of a matter of lawdoes not constitute fraud at law, because the law is presumed to be equally within the knowledge of all the parties ; and the misrepresentation of the legal effect of a written agreement, which a party signs with a full knowledge of its contents, is not a sufficient ground for avoiding the agreement. — Platt v. Scott, 6 Blackf. 389; PusseTl v. Branham, 8 Blackf. 277; Starr v. Bennett, 5 Hill, 303; Martin v. Wharton,…

<p>Appeal from St. Louis Circuit Court.</p> <p>Want of title or authority to convey is a good defence to this action. — Luclcett v. Williamson, 31 Mo. 57 ; 1 Sugden on Tend. 125, note*; Id. 400, note q; Steinhauer v. Whitman, 1 Serg. 6 R. 438 ; Roland v. Miller, 3 Watts & S. 390 ; Ilerrod v. Blackburn, 56 Pa. St. 103; Pyrlce v. Waddingham, 17 Eng. Law &Eq. 538, 541; 3 Pars, on Con. (6th ed.) 378, 380. An instruction that, to avoid a contract on the ground of drunkenness, the drunkenness must be excessive and absolute, is bad. — Thomas v. Bobb, 45 Mo. 388 ; Barrett v. Buxton, 2 Aik. 171; Foot v. Tewksbury, 2 Vt. 100 ; Pitt y. Smith, 3 Camp. 33. The acceptance of an offer must be wholly unconditional. — Jenness v. Iron Go., 53 Mo. 20 ; Eads v. Garondelet, 42 Mo. 113 ; Bruner v. Wheaton, 46 Mo. 363; Eliason v. Henshaw, 4 Wheat. 228 ; Oriental In. Steam Go. v. Briggs, 4 De G. F. & J. 191; Potts v. Whitehead, 20 N. J. 55 ; Iloneyman v. Marryatt, 21 Beav. 14; Woods Gase v. Jones, 3 De G. 85. The agreement of sale being indefinite as to the description of the land, uncertain, and ambiguous, was insufficient. — Gen. Stat. 1865, p. 438, sec. 5; Brown on Stat. Fr. 396 ; Advent v. Farrow, 7 Rich. Eq. 383 ; Lindsay v. Lynch, 2 Sch. & Lef. 7; Kay v. Ourd, 6 B. Mon. 101; Hurly v. Bearon, 98 Mass. 545.</p> <p>Avoidance of contract on the ground of drunkenness. — 1 Story on Con., sec. 87 ; 1 Story’s Eq. Jur., sec. 231; Gaulkins v. Fry, 35 Conn. 170 ; Belcher v. Belcher, 10 Yerg. 121. A broker is entitled to his commissions when prevented from a complete performance by the act or neglect of his principal. — Story on Ag. (8th ed.), sec. 329, note 4; Bailey v. Chapman, 41 Mo. 536 ; Cavenderv. Waddingham, 2 Mo. App. 551. It was not error to refuse, in this action, to go into the question of the value of the real estate. — Gadwallader v. West, 48 Mo. 494; Eyre v. Potter, 15 How. 59.</p>

<p>1. Secs. 19 and 20, p. 502, of Wagner’s Statutes, designed for the suppression, not regulation, of prostitution, was repealed as to St. Louis by the Charter of the City of St. Louis of 1870, and the repeal of this charter provision, in 1874, did not revive these sections.</p> <p>2. The renting of a house to be kept as a bawdy-house is not a criminal offence under the statute; but the keeping of a bawdy-house is a common-law offence, and an indictment for keeping a bawdy-house will be sustained by proof of the leasing or letting of the house for that purpose,</p> <p>3. All who aid or abet a misdemeanor are principal offenders, and an indictment against one who leases a house for bawdy purposes must charge him. as a keeper of the house.</p>

Louis Circuit Court. Equivocal words, and such as are ambiguous and calculated to mislead, should not be used in instructions. — Bank v. Lonergan, 21 Mo. 46 ; Beltv. Goode, 31 Mo. 128; Buelv. Transfer Go., 27 Mo. 564; Edmunds v. Railroad Go., 3 Mo. App. 603.

<p>In a suit on a special tax-bill for macadamizing, guttering, and paving a street, under a contract -with the city, the fact that the grading, done under the same contract, raised the street in front of defendant’s lot so as to depreciate its value is no defence against the special tax-bill. The grading was done at the city’s expense, and whether defendant had a remedy against the city for the damage done by change of grade does not affect the question of the liability on the special tax-bill.</p>

<p>1. A contract by wbicb a corporation binds itself not to exercise certain fran. chises committed to it by the State for public purposes is ultra vires and void, and cannot be set up as a defence in an action to compel specific performance of an obligation imposed by law upon such corporation.</p> <p>2. By act of 1837, and acts amendatory, commonly called tbe charter of the St. Louis Gas-Light Company, the General Assembly of Missouri gave to that company the exclusive right of manufacturing and selling illuminating gas in the city of St. Louis and its suburbs; subject, however, to the provision that after twenty years, fixed as the absolute duration of the charter, the city should have the right, optionally to be exercised by the city or not, in 1860 or 1865, of purchasing the gas-works and appurtenances from the company. The General Assembly, in the charter, particularly describe certain formal acts of notice and resolution, and provide that, if the city shall resolve to purchase the gas-works, the price shall be fixed by arbitrators, one or more of whom must be appointed by the gas company; while, in case the city does not resolve to purchase at either of the times provided, the company’s charter is to be in force until 1800. In 1846, nine years after the passage of this charter, a contract was made between the city and the gas company, providing that the city should relinquish its right to purchase the works in 1860, and that in case the city should not exercise its privilege in 1865, then the city might purchase in 1870, and at periods of five years thereafter. Notwithstanding this contract, the city, in 1860, took the formal steps prescribed by the Assembly as the acts which should be considered a determination on the city’s part to purchase the works. The gas company then refused to sell, on the ground that by the contract of 1846 the city had surrendered its right to buy in 1860. In 1870, the city again took the prescribed steps; the gas company then refused to appoint arbitrators or to sell, on the ground that the charter times of purchase had expired. Held, in an action for specific performance, instituted by the city in 1870, that if the contract of 1846 is void as ultra vires of the parties, it does not follow that the city cannot recover in this proceeding; that, without reference to the doctrine of estoppel, whether the provisions in the charter as to time were mandatory or not, the gas company, in view of the facts in this case, could not urge that they were so; that, as by insisting on the contract of 1846 the gas company had prolonged its enjoyment of the franchise and property for ten years, it was estopped to deny the validity of that contract in so far as it provided a different time when the purchase might be made; that payment was not a condition precedent; that the city held the purchase-money as trustee for the gas company, and the company held the gas-works in trust for the equitable owner, the city, while the franchise, resumed by the State, passed to the city; and that the city, having performed all preliminaries on its part, was entitled to specific performance.</p> <p>3. In 1873, the city, the gas company, and another gas company, called the Laclede Company, entered into a tripartite agreement which was embodied in a city ordinance, by which it was agreed that, on certain conditions, this suit was to be dismissed; that the territory should be divided between the gas companies; and that the contract of 1846 should be cancelled. Held, that this contract was in violation of the company’s charter, and against the policy of the law; that the company’s franchises and the gas-works had, prior to 1873, passed to the State and become vested in the city for a public purpose, and the city could not part with them under the guise of dismissing a suit; that, as the contract was made after the suit was brought, and the company had notice of the want of authority in the city officers to make it, the city was not estopped from contending that it was ultra vires; and that, on the facts, the court below properly charged the gas company with profits of the business from 1870, and refused to allow interest to be credited thereon.</p>

<p>PrioT to the revision of 1865, the statute had declared that the issue of all marriages “ deemed ” null in law should be legitimate, but in the revision of 1865, the word “decreed” was substituted for “deemed” in the statute. Held, that this change bastardized no one who was legitimate when the change was made, and a son who had inheritable capacity in 1864, and whose father was then alive, could, upon his father’s death subsequent to 1865, be capable of inheriting the estate, though issue of a marriage “ deemed,” but never “ decreed,” null in law.</p>

<p>Appeal from- St. Louis Circuit Court.</p> <p>Where a married woman carries on business in her own name in this State, equity will pay her business creditors out of her stock in trade. — Tuttle v. Hoag, 46 Mo. 43; Miller v. Brown, 47 Mo. 507. The chattel mortgage in this case is void. — Billingsley v. Bunoe, 28 Mo. 547 ; Reed v. Pelletier, 28 Mo. 173 ; BrooJcs v. Wimer, 20 Mo. 503; Milburn v. Waugh, 11 Mo. 369.</p>

<p>1. An administrator is not a proper party to a proceeding to set aside a voluntary conveyance made by his intestate. A bill for that purpose should be filed by those defrauded by the conveyance.</p> <p>2. A bill by a creditor to set aside a voluntary conveyance becomes a specific lien as soon as filed, and the creditor who first files his bill obtains a priority.</p> <p>3. An insurance policy on the husband’s life, effected without fraud, for the benefit of the wife, and payable to her, is not fraudulent as to creditors, and does not become the creditors’ property by the husband’s subsequent insolvency; and if, after such insolvency, the husband pays premiums with money that ought to be applied to the payment of his debts, the creditors, after the husband’s death, are entitled to receive from the proceeds of the policy only the premiums paid by the deceased after his insolvency, with interest.</p> <p>4. A husband, though insolvent, may withdraw annually from his creditors $300, to be used in effecting and keeping alive insurance on his life for his wife’s benefit.</p> <p>5. In determining whether a gift is in fraud of creditors, the question is not whether the donor knew himself to be insolvent, and intended to defraud, hut whether he was solvent.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Pars, on Con., secs. 2, 3; Coll, on Part., sec. 113; Wats, on Part. 4, 9, 21; Whitehill v. Shields, 43 Mo. 537 ; Maclay v. Freeman, 48 Mo. 234; Abbott v. Smith, 2 Black, 947.</p> <p>cited: Humphries v. McCraw, 5 Ark. 65; Savage v. Putnam, 32 Barb. 425; Laughlin v. Lorenz, 48 Pa. St. 275; Washburn v. Goodman, 17 Pick. 519 ; Marleit v. Jacleman, 3 Allen, 290; McPherson v. Pathbone, 7 Wend. 216.</p> <p>cited : Coll, on Part. 119, 123; Story on Part., secs. 58, 199-201; Fox’s Part. Dig. 115; Pars, on Part. 452, 453; Lea v. Guice, 13 Smed. & M. 656 ; 11 How. 385.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: McMurray v. Taylor, 30 Mo. 263 ; Ashdown v. Woods, 31 Mo. 465 ; Muir v. Gross, 10 B. Mon. 277 ; Gfrahamv. Holt, 4 B. Mon. 61; Wheeler v. Sehroeder, 4 E. I. 383 ; Bailey v. Hull, 11 Wis. 289.</p> <p>cited: Waterman v. Younger, 49 Mo. 413 ; Gantner v. Kemper, 58 Mo. 567.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Dillard v. Railroad Co., 58 Mo. 69; Bridle v. Gheen, 42 Mo. 359 ; Shields v. Stillman, 48 Mo. 82.</p>

Louis Circuit Court. The assignment from Mellor to Primm was a conveyance of goods and chattels, in trust, to the use of Mellor, and was void as to appellant, his creditor. — Wag. Stat. 279, sec. 1.