Volume 50 — Missouri Appeal Reports

<p>Practice, Appellate: judgment for right party. The judgment in this cause was affirmed on the ground that, under all the evidence, it is for the right party.</p>

<p>1. Jurisdiction: enforcement in state courts of judgments of federal COURTS. One who has recovered a judgment in a court of the United States is entitled to prosecute in a state court a proceeding in equity to subject to its satisfaction property which cannot be reached under execution.</p> <p>2. Practice, Appellate: proceeding in equity: incompetent evidence. An appellate court in a suit in equity is under the duty of reviewing the facts, and of deciding the case upon competent evidence, excluding from consideration that which cannot, under the rules of law, be treated as evidence at all. And held, accordingly, that where the trial court in such a suit admitted, against proper objection, an ex parte affidavit to establish an issue in the cause, this court was bound to disregard the affidavit in deciding the cause on appeal.</p>

<p>1. Instructions: comment upon the evidence. It is a comment upon the evidence, and consequently erroneous, for the court to instruct the jury that, in determining an issue as to whether goods had been shipped to the defendant by the plaintiff, they were authorized to take into consideration the circumstance that the goods were not received by the defendant.</p> <p>2. Contradiction of Witness by Party Producing Him; instructions. A party is at liberty to contradict the testimony of his own witness by other competent evidence. An instruction, that he is bound by the testimony of his own witness, is, therefore, erroneous.</p> <p>3. Sales: delivery to carrier. Held in the course of discussion that, for the purposes of an action for the purchase price of goods which the vendee has ordered the vendor to ship to him, a delivery of the goods by the vendor to the carrier constitutes a delivery to the vendee under the following circumstances, namely: When the particular carrier has been designated by the vendee as the one through whom the goods are to be shipped; also when no carrier has been designated, but the particular carrier either is the one usually employed for the shipment of goods from the place of the vendor to that of the vendee, or has been employed in other similar cases by the usage of the parties.</p>

<p>1. Sales: IMPLIED WARRANTY OF SUITABILITY OF PROPERTY SOLD. The fact that machinery was purchased for a particular purpose, known at the time by the seller, but was worthless for such purpose, will not avail as a defense, to an action for the purchase price of the machinery, when the allowance of such defense would be in contravention of the special provisions of the contract of sale; as where the allowance of it would contravene the terms of a special warranty of the quality and capacity of the machinery, which required a certain notification from, the purchaser to the seller of any insufficiency in that respect.</p> <p>2. -: express warranty: waiver. Attempts by the seller to remedy defects in the machinery after the expiration of the stipulated time for such notification cannot operate as a waiver of such provisions for notification, when the contract expressly provides that they shall not have such effect.</p>

<p>1. Schools: powers of directors. Under the statutes of this state no power exists in a hoard of school directors, without authority from the voters of the district, to rent a building or room separate from the district schoolhouse, and to employ a teacher for a supplementary school therein.</p> <p>2. Illegal Action on the Part of School Directors: rights or taxpaying citizens to injunction. But when school directors undertake to exercise this power without such authority from the voters their illegal action will not be restrained at the instance of taxpaying citizens who sue on their own behalf, but who fail to show that they have any substantial interest in the correction of this irregular action, or that such action is substantially injurious to them. Especially is this true, when, as in this case, the prosecution of their suit has been attended by unnecessary delay.</p>

<p>1. Mutual Benefit Societies: void expulsion of member: necessity for appellate proceedings. Where the suspension of a member of a mutual benefit society by his lodge is without jurisdiction— as where it takes place upon a charge upon which the lodge has-no jurisdiction to try him — his expulsion is null and void, and, being so, it is not incumbent upon him to take steps to have it reversed in a. higher judicatory of the order.</p> <p>2. -: -: necessity for disaffirmance by member. But it is nevertheless incumbent upon him to affirm or disaffirm the act of expulsion within a reasonable time and in some distinct manner under the circumstances; and where he takes no steps of any kind to secure his reinstatement, allows dues to remain unpaid which had accrued and were payable prior to the date of his expulsion, and neither tenders such dues nor any which accrue subsequently, he must be taken to have acquiesced in and consented to the sentence of expulsion, and no recovery can be had for benefits dependent upon his continued membership. (Mulroy v. Knights of Honor, 28 Mo. App. 463, qualified.)</p>

— Hon. John W. Henry, Judge. (1) Under the statute regulating practice, it is declared that “the filing of a petition in a court of record, or a statement of account before a court not of record, and suing out process therein, shall he taken and deemed the commencement of a suit.” R. S. 1889, sec. 2013. The statute as it stood prior to the revision of 1889 did not contain the foregoing declaration as to when a suit was begun. R. S. 1879, sec. 3485.

— Hon. E. M. Hughes, Judge. Defendant was not a trespasser but was' legally employed and 'rightfully in possession on the fifteenth of May, 1890, at the legal meeting of the board, by a majority thereof employing the defendant to teach the school and ordered the clerk to close the contract, which he did. Under this contract, without any knowledge that it was objectionable, or not signed by the president, she was put in possession by a director who was the clerk.

— Hon. R. H. Field, Judge. (1) The account filed with the lien is not defective because the price of each item is not carried out. Miller v. Whitelaw, 28 Mo. App. 639; School Dist. v. Howell, 44 Kan. 285. (2) There was an agreement between plaintiff and defendant Roy, entered into about November 28, 1888, that defendant Roy would buy of plaintiff the lumber needed by him in the construction of the improvements on both lots.

— Hon. C. H. S. Goodman, Judge. (1) The rule is well settled that, if the plaintiffs recover in this case, they can only recover upon the case stated in their petition, and their instructions must correspond with the pleadings. Benson v. Railroad, 78 Mo. 504; Bank v. Murdock, 62 Mo. 70; Moffat v. Conklin, 35 Mo. 453; Brenhard v. Ins. Co., 40 Iowa, 442.

— Hon. C. H. S,. Goodman, Judge. In his work on estoppel, etc., Mr. Herman says: “ There is another class of judicial or solemn admissions which have the binding effect and force of an estoppel, and that is by payment of money into court.” Here the defendant conclusively admits that lie owes the amount thus tendered in payment; that it is due for the cause mentioned in the declaration.

— Hon. W. I. Wallace, Judge. (1) There is a penalty prescribed by law for any person to open or examine the papers, or to interfere in any manner with the property of the deceased, except the administrator in the presence of witnesses. R. S. 1889, sec. 73.

— Hon. M. G. McGregor, Judge. (1) No evidence should have been permitted of' the sale of the shaft. Because the evidence shows that the shaft was located in a public street where plaintiffs-could have no right or title to it, and could not sell any. Dillon on Municipal Corporations [Ed. 1872] sec. 518; Elliott on Roads & Streets, pp. 86-8, and, note 2, p. 86; Thurston v. City of St. Joseph, 51 Mo. 512-13.

— Hon. J. M. Davis, Judge. (1) On these facts the question is to which party, appellant or respondent, ex æquo et bono” the money belongs. This is an action for money had and received —there is no question of innocent purchaser involved. It is not an action to recover the hogs or for their conversion, but to recover money wrongfully received by defendant, after notice of plaintiff’s claim.

— Hon. J. M. Davis, Judge. (1) We insist that, in the exercise of powers not of this character, voluntarily assumed, and intended for the private advantage and benefit of the locality and its inhabitants, such municipal corporation is liable for damages to the same extent as a private corporation or individual.

— Hon. James H. Lay, Judge. (1) The instruction, in the nature of a demurrer to the testimony offered and asked at the close of plaintiff’s case, should have been given.

— Hon. D. P. Stratton, Judge. (1) The court should have instructed the jury at the close of plaintiff’s evidence, as requested by the defendant, that they should find for the defendant. And, again, after all the evidence in the case was in, the court erred in again refusing to instruct the jury to find for the defendant.

<p>Execution: levy: evidence. In a motion to quash the levy of an execution the levy is the foundation of the proceeding, and if there is no evidence of such levy the motion must he overruled.</p>

Clair Circuit Court. — Hon. D. P. Stratton, Judge. (1) The consideration for the note failed, and although only a quitclaim deed was given this does not debar appellant from his claim of failure of consideration. (2) In equity and good conscience, the respondent ought not to maintain this action against appellant.

Clair Circuit Court. — Hon. D. P. Stratton, Judge. Tire court erred in giving instruction, numbered 2, of its own motion. The term, sowing flax seed, does not imply or warrant that the seed will grow when sown. Shisler v. Baxter, 58 Am. Rep. 738. (1) Under the contract sued on, there was an implied warranty that the flax seed was to be fit for sowing and raising a crop, that is, that it would grow. Shaw v. Smith, 11 Law Rep. (annotated) 681, also reported in 45 Kan. 334.

Clair Circuit Court. — Hon. D. P. Stratton, Judge. (1) The only question of fact in this case is whether there was a partnership'existing between the defendants at the time the money was borrowed for which the note sued on was given.

Clair Circuit Court. — Hon. D. P. Stratton, Judge. (1) Plaintiff was only required to show that he was in the actual and peaceable possession of the land, and that defendant entered thereon against his will and took possession and retained it after demand in writing. R. S. 1889, sec. 5089; DeGraw v. Prior, 53 Mo. 313; Miller v. Tillmann, 61 Mo. 316; Craig v. Donnelly, 28 Mo. App. 342.

— Hon. D. P. Stratton, Judge. This is an action in replevin for a lot of corn. Plaintiff Vogt claims it because he raised it. Defendant Cunningham claims it because he bought it at a foreclosure sale of the land on which it was grown, and the corn was then standing in the stalk in the field. The corn was grown on the “Landon” farm, in St. Clair county. Vogt leased this farm from Landon for one year, beginning March 1, 1890. He went on the farm, and planted this crop of corn.

— Hon. Andrew Ellison, Judge. (1) The court should have sustained the defend.-ant’s demurrer to plaintiff’s evidence. With all the liberality extended to statements filed before a justice, it has never been permitted to sue on one cause of action, and recover on another and different cause of .action. R. S. 1889, sec. 6138; Penninger v. Reiley, 44 Mo. App. 255.

— Hon. Geo. W. Shoemaker, Special Judge. (1) Defendant’s motion for a change of venue should have been sustained. The notice was sufficient. Reed v. State, 11 Mo. 380; Corpenny v. Sedalia, 57 Mo. 88; Dowling v. Allen, 88 Mo. 293.

<p>1. Landlord and Tenant: lien Released by note. The taking of a note for rent does not necessarily operate to extinguish the landlord's lien on the crop, and at most only amounts to a presumption subject to he overcome by proof; and it is error to reject testimony that the lien was not waived.</p> <p>2. Practice, Appellate: invited error. The appellant cannot assume in the appellate court an attitude different from that he occupied at the trial, and have the judgment reversed because of error he invited the court to commit.</p>

<p>1. Nuisances: location of stock pens. Stock yards are not of themselves necessarily nuisances, yet, under some circumstances, even when well kept and cared for, they would to he so considered, as where they are located and operated alongside of plaintiffs lot and residence, and necessarily produce much discomfort and quite destroy the reasonable enjoyment of his property.</p> <p>2. -: MEASURE of damages. Where a nuisance is such as may he removed at any time, and the damage does not go to the inheritance, the measure of damages is the loss actually sustained prior to the institution of the suit, and not for any supposed permanent damage to the real estate.</p> <p>3. Practice, Appellate: common error. An appellant cannot complain of a common error.</p>

— Hon. Cyrus A. Anthony, Judge. (1) The defendants answer separately, and the only defense imposed is that the defendants did not sign the note. The first instruction is erroneous, because it requires that both of the defendants must have signed the note, or neither was liable. (2) The third instruction is erroneous.

— Hon. Cyrus A. Anthony, Judge. (1) As to proceeds of sale of land, and the interest thereon. The court erred in admitting evidence relative thereto, and in directing the jury, in instruction, numbered 1, given for defendant, to deduct such proceeds and interest from amount found to be due ward by the former curator’s (Wood’s) final settlement. R. S. 1879, secs. 2592, 2593.

— Hon. J. H. Slover, Judge. (1) In the jurisdiction in -which the decree was granted, the court which granted it is the proper court to enforce it. In the other courts of the state of New York an action of debt could not he brought on the decree for alimony.

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

— Hon. R. H. Field, Judge. (1) However, it is an uncontroverted fact in this case that they did deliver the grain to Nathan without demanding or receiving the purchase price, and without anything whatever being said on the subject at the time of the delivery. In such case the presumption is that the condition — payment on delivery — was waived, and the burden of proving the contrary rests on the vendor.

— Hon. Henry P. White, Judge. (1) The finding of facts, made by the court, stands on the same footing as an agreed statement of facts, or a special verdict. “If there is any ambiguity, any omission of facts essential to establish the guilt of the accused, any substantial lack of clearness and certainty on material points, the judgment cannot be allowed to stand.” Gage v. Gates, 62 Mo. 412-416; Carr v. Lewis, 96 Mo. 149-155; Rannells v. Isgrigg, 99 Mo. 19-28; State v. Hughes,…

— Hon. R. H. Field, Judge. Instruction, numbered 1, as given by the court of its own motion, is erroneous. The filling of a blank by the agent of the borrower for a larger amount than intended does not absolutely invalidate the instrument. A recovery may be bad for the amount actually due. Johnson v. Blasdale, 1 S. & M. 17; 40 Am. Dec. 85.

— Hon. J. H. Slover, Judge. (1) Our statute of limitation is broad. To take any case out of its operation, all that is necessary is that the “acknowledgment or promise be made or contained by or in some writing subscribed by the party chargeable thereby.” E. S. 1889, sec. 6793. In this case the above requirements have been complied with, the letter relied on contains an unqualified acknowledgment as well as an unqualified promise or intention to pay.

<p>Practice, Appellate: completion op transcript : order of court. After an appellant directs tire clerk to make out a transcript, lie can wait a notice from the clerk that the transcript is completed, and, until such notice, he is not in default in filing such transcript in the appellate court; and the order of the court in extending time to file hill of exceptions, that such extension shall not in anywise extend time of filing transcript, cannot alter the duties of the clerk nor affect the party entitled to the performance of such duty, and to rely upon such performance.</p>

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

<p>1. Judge of Criminal Court: superintending control of circuit court. Whether the judge of a criminal court acts judicially or ministerially in certifying costs against the state under Revised Statutes, 1889, section 4412, his action is subject to the superintending control of the circuit court of his county.</p> <p>2. -: taxation of fees of witnesses against the state. The decision of the judge of a criminal court, and of the prosecuting attorney, of questions of fact arising under section 4420 of the Revised Statutes, 1889, is conclusive, and, therefore, their action, or that of the judge, in determining under that section that the costs of three witnesses to establish any one fact have been taxed, and that the .claims of witnesses only have been rejected who were unnecessarily summoned and not examined, cannot be reviewed in a proceeding by mandamus against such judge, especially after a return therein by the judge, which alleges that such costs have been taxed, and that only such claims of witnesses have been rejected.</p> <p>3. Witnesses: action for taxation of fees. Semble, that a witness has no such independent right or status as entitles him to maintain in his own name an action or proceeding for the taxation of his fees as costs against one of the parties instead of another, but that his right to such taxation must be exercised, if at all, through the agency of a party to the suit.</p>

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

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

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

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

Hon. E. M. Hughes, Judge. Defendant’s demurrer to the evidence should have-been sustained. The evidence fails to disclose such facts — directly or inferentially — as entitle respondent to recover. A servant of mature years, especially if he be experienced in the work in which he is engaged,, assumes all risks incident thereto.

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

<p>Appeal from the Marion County Circuit Court. — Hon. Thomas H. Bacon, Judge.</p>

— Hon. E. L. Edwards, Judge. (1) The court erred in giving the plaintiff’s first instruction. There was no evidence whatever of any negligence on the part of Battles. All the evidence shows that, if injury was not caused by plaintiff moving his head, it was, nevertheless, a mere accident, without negligence, and within the risk assumed by plaintiff as Incident to his employment. Grant v. Railroad, 45 Fed.

— Hon. R. H. Field, Judge. The law does not require this, but only reasonable diligence on the part of the notary as to these facts. Further, the question of reasonable diligence is a question of law for the court, and was wrongly submitted to the jury. Saimderson, Adm’r, v.Beinstadler, 31 Mo. 483-487; Bank v. Hatch, 78 Mo. 13; Bank v. Chambers, 14 Mo. App. 152; Greff et v.Bowdall, 17 Mo. App. 280; Benshaw v. Triplett, 23 Mo. 213; Ma/tdin v. Grabinsky, 38 Mo. App. 359.

— Hon. E. L. Edwards, Judge. (1) The court erred in instructing the jury that the plaintiff could not recover. The evidence tended to show that there was a contract made by the defendants with the plaintiff, which the plaintiff was. ready and willing to perform, but which the defendants failed and refused to carry out upon ¡their part, and that plaintiff sustained damages in consequence thereof. This entitled plaintiff to a recovery. Woods v. Ins.

— Hon. E. Hughes, Judge., (1) The seventh instruction asked by the plaintiff,, and refused by the court, should have been given to the jury. It stated a correct proposition of law, and, if the evidence established the facts, defendant’s set-off should have been disallowed. Banh v. Aull> Adm’r, 80 Mo. 199; Bailie v. Ins. Co., 73 Mo. 371. (2) The eighth instruction prayed by the plaintiff should have been given.

— Hon. Chas. H. Goodman, Judge. (1) Tlie court erred in refusing tlie declaration of law prayed for by the plaintiff. The conditions of the mortgage were immediately broken upon its execution;'a forfeiture took place when Ewart took possession of said stock of goods, on the eleventh day of January, 1888. Hug gems v. Fryer, 1 Lans. (N. Y.) 276; Jones on Chattel Mortgages [2 Ed.] sec. 557; Jackson v. Cunningham, 28 Mo.

— Hon. D. P. Stratton, Judge. (1) Amendment not allowed where change of cause of action, if motion made to strike out in suitable time. Fields v. Mahoney, 78 Mo. 172; Sims v. Field, 24 Mo. App. 557; Gourley v. Railroad, 35 Mo. App. 87. (2) Trial of case in defendant’s absence was error, because contested cases never tried on first day of term in the trial court. O’Fallon v. Davis, 38 Mo. 269.

— Hon. D. P.. Stratton, Judge. (1) The prior parol contract having been fully expressed and reiterated in the subsequent correspondence with defendant’s president, the four letters read in evidence by the defendant and comprising the correspondence on the subject, when taken together fully make out a written contract between the plaintiff’s firm and the defendant for the ties in controversy, and it was not competent for the plaintiff and his former partner, in the face of…

— Hon. Andrew Ellison, Judge. (1) The court erred in excluding the portions of J. J. Parsons’ deposition tending to prove that the sale from England to Magee was without consideration, and contrived for the purpose of defrauding England’s creditors. The attorney was a party to the fraud, a ■co-conspirator. The privileged relation of attorney and client can only exist for lawful and honest purposes. The contrivance of a fraud is no part of the duty of an attorney.

— Hon. Cyrus A. Anthony, Judge. (1)The plain tiffs sue on a settlement made with the defendant, and, hence, they cannot abandon the issue in their proofs. Railroad v. Kimmel, 58 Mo. 83. (2) Plaintiffs allege a settlement by and between all the sureties on the school bond and on the county bond and said David Newburn and this defendant, about the first day of October, 1890, by which it was agreed that defendant should pay plaintiffs $300.

<p>Appeal from the Andrew Circuit Court.— Hon. Cyrus A. Anthony, Judge.</p>

— Hon.. Cyrus A. Anthony, Judge. (1) Conld Craig take payment of Knox’s note in land, and bind Knox and discharge the debt thereby? The authorities answer in the negative. Wheeler & Wilson v. Givin, 65 Mo. 89; Smith v. Johnson, 71 Mo. 382; Martin’s Adm’r v. United States, 15 Am. Dec. 129-133; Graham v. Savings Inst., 46 Mo. 186; 2 Daniels on Negotiable Instruments [2 Ed.] sec. 1245. (2) If Craig took pay for Knox’s debt in land from Statesman, did Knox ever ratify it?

— Hon. Cyrus A. Anthony, Judge. (1) Defendant’s answer sets out two payments. The first is by conveyance of the land by the maker of the note to Craig. This would raise the same question .so elaborately considered at last term in the case of Eddy v. Bartlett, 49 Mo.

— Hon. James G-ibson, Judge. (1) The judgment of the court below is contrary to the law and the evidence. The judgment should have been for the plaintiff as prayed for. Bank v. Evans, 51 Mo. 345; Wells v. Weston, 22 Mo. 384; Lochvood v. St. Louis, 24 Mo. 20; Clark v. Ins. Co., 52 Mo. 272.

<p>Practice, Appellate: evidence: apparent injustice: verdict. Where the verdict is without evidence to support it and apparent injustice is shown hy the record, the appellate court will reverse the 'judgment and remand the cause.</p>

— Hon. J. H. Sloven, Judge. (1) Tlie court is earnestly requested to review the evidence, as defendants contend that the judgment is unsupported by the evidence; there being no proof that defendant ever wrote the letter Wilson claims to have acted upon. (2) The judgment record was directly assailed by defendants, and Missouri courts have uniformly held that a judgment is an entirety, and must stand or fall as a whole. Waddingham v. Waddingham, 27 Mo.

— Hon. James Gibson, Judge. (1) Plaintiffs’ instructions, numbered 3 and 5, are erroneous, in that they omit the material issue of plaintiffs’ negligence. Plaintiffs’ contributory negligence is perfect defense to such an action as this. Mechem on Agency, sec. 503; Railroad v. Walker, 49 Iowa, 273. This issue was clearly made in the pleadings and evidence. No issue should be omitted from an instruction. Evans v. Railroad, 16 Mo. App. 522; Bank v. Westlake, 21 Mo.

— Hón. R.' H. Field, Judge. It was necessary to show in this case, to make the Holmes estate liable for any part of the coal sued for, that Webster was in charge óf the north half of the Landis Court, as the agent of the executors of the Holmes estate. Now, what evidence did they offer to show it?

— Hon. E. H. Field, Judge. (1) Plaintiff’s instructions given are upon the theory of, and allow a recovery for, reasonable value, whilst plaintiff’s proof is that the work was to be done for cost. (2) The petition was a suit on one cause of action, and plaintiff was allowed, over defendants’ objections, to introduce evidence and recover on two separate contracts, or causes of action.

— Hon. J. H. Sdoyeb,, Judge. (1) Conduct which amounts to connivance must be directed by corrupt intention, and, where there is no corrupt intention proved on the part of the Complainant, the remedy is not barred. Hoar v. Hoar, 3 Hag. Ec. 137; Phillips v. Phillips, 10 Jur. 829; 1 Bob. Ec. 144. Mere imprudence and error of judgment do not constitute what the law deems connivance.

— Hon. John W. Henby, Judge, The undisputed testimony in this case shows that the lot described in the tax bill which is the subject of this action was within the limits of the work required to be done under the contract and ordinance. The court erred, therefore, in refusing each and every one of plaintiff’s instructions, and in giving for defendants instruction, numbered 1, on its own motion.

<p>Appeal from the Cass Circ%át Cowrt. — Hon. Chas. W. . Sloan, Judge.</p>

-? — Hon. J. H. Slover, Judge. (1) A mechanic’s lien is purely a creature of the statute, and derives its existence wholly from positive enactments. Edgar v. Salisbury, 17 Mo. 272; Camsius v. Merrill, 65 Ill. 67; Phillips on Mechanics’ Liens [2 Ed.] sec. 9; Grant v. Vandercook, 8 Abb. Pr. N. S. (N. Y.) 455; Mfg. Co. v. Hazlett, 3 Brewst. (Pa.) 98. Therefore, there can be no lien other than that which the statute creates.

— Hon. Oliyee M. Spenceb, Judge. This action was originally brought to recover ■damages for the destruction of plaintiff’s growing crops, occurring successively in the month of June of the years 1883, 1884 and 1885. The action was begun, on December 16, 1887, by filing a petition in one count .alleging and asking damages in one sum. The petition was amended by adding an allegation of permanent injury to the land. Plaintiff recovered, and defendant .has brought the case here.

<p>Appeal from the Jackson Circwt Court. — Hon. R. II. Field, judge.</p>

— Hon. A. M. Woodson, Judge. (1) When a deposit is made to or with a party in a special character or capacity, then, when the trust shall have terminated, the delivery should he made to the party for whom, or for whose benefit, the deposit may have been made. Story on Bailments [9 Ed.] sec. 109. And this is so, though the deposit may have been made in the name of the party maiding it. Utley v. Tolfree, 77 Mo. 307.

.Appeal from, the Jackson Circuit Court. — Hon. John W. Henky, Judge. (1) The court erred in admitting in evidence tlie •copy of the chattel mortgage from Lund to plaintiffs, :for the reason that it was not certified according to act of congress, nor was it “a record or an exemplification of an office book/’ witkin tbe meaning of section 4844, Revised Statutes, 1889; nor was • any foundation laid for tbe introduction of secondary evidence.

— Hon. John W. Henry, Judge. (1) To bring the case within the exception pleaded and relied on, the exposure must have been voluntary. It would not be voluntary unless the plaintiff knew of the danger, and intended to run the risk. There must be design. Bwkhart v. Ins. Go., 102 Pa. St. 162; Schneider v. Ins. Co., 24 Wis. 28; Schneider v. Ins. Co., 58 Wis. 13; Pierce v. Ins. Co., 34 Wis. 389; 1 American & English Encyclopedia of Law, 92; Ins.

— Hon. R. H. Field, Judge. (1) The erection of a wooden buihhng vrithin the fire limits is an offense created alone by ordinance of' the city. For a violation of such ordinance the offender is liable only to the city, and in the manner and to the extent prescribed by the ordinance. Wcvrren v. Cavanaugh, 33 Mo. App. 102; Moore v. White, 45-Mo. 206; Kottinger .v. Neto Orleans, 8 S. Rep. 575;. JReecl v. Railroad, 33 Cal. 217; Willis v. Tale, 1 Mete. 553.

.Appeal from the Jackson Circuit Court. — Hon. John W. Henry, Judge. Whether the subordinate lodge or the financier was the agent of the grand lodge to collect and pay over assessment dues, the manner in which it was done showed that the course of dealing with the members, and between members, as to payment of these dues, was such as to forbid forfeiture, and to waive ,that condition of the contract.

— Hon. R. H.. Field, Judge. (1) The second instruction asked by and given for the railroad company is not only erroneous, but is ingeniously framed for the purpose of misleading the jury.

— Hon. Jambs. Gibson, Judge. (1) The defendant Sheidley’s demurrer to the evidence should have been sustained. The statute gives a lien on leasehold estates for buildings and improvements made thereon by the lessee. R. S. 1889, sec. 6707. But the words “building” and “improvement,” as used in that section, are synonymous. Collins v. Mott, 45 Mo. 100; 'Richardson v. Koch, 81 Mo. 264. The improvement or building must be an independent structure. Dugan v. Scott, 37 Mo. App. 662.

— Hon. James G-ibson, Judge, • (1) Tbe improvements on bouses were not ■“erected under one general contract,’; so as to entitle plaintiff to file one lien on all the houses and lots, under section 6729, of the Revised Statutes. There was a distinct contract to do the work on each house for $170. The language of the section is too plain to be mistaken, and that interpretation must be adopted which the words themselves import.

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

— Hon. C. H. S. G-oodman, Judge. (1) The plaintiff was in possession under Ms mortgage. The defendants attempted to destroy his title. To do this they should he required to clearly set forth in their answer the reasons why his mortgage and possession were not valid. A fraudulent conveyance ■cannot he proved under a general denial. Claflin v. Summers, 39 Mo. App. 419; Cummishey v. Williams, '20 Mo. App. 606; Moore v. Ives, 83 Mo. 32-3.; Very v. Levy, 13 How. (U. S.) 345.

— Hon. D. P. Stratton, Judge. (1) Note should have been filed, and motion to dismiss was the proper remedy. R. S. 1889, sec. 2088; AclmW v. Murdock, 38 Mo. 224; Rotlnvell v. Morgan, 37 Mo. 107; Christie v. RaiVroad, 94 Mo. 456; Railroad v. Knudson, 62 Mo. 569. (2) Testimony should have been admitted on the counterclaim. First. Fraud was circumstantially stated, and that was sufficient.

— Hou. M. 0. McG-reg-or.,. Judge. - (1) The plaintiff has an adequate and complete remedy at law. R. S., sec. 8675; Pearson v. Inlow, 20 Mo. 322; Austm v. Coal & Mining Co., 72 Mo. 535; Henry v. Low, 73 Mo. 96; Mays v. Tappan, 23 Cal. 306; Gollerv. Felt, 30 Cal. 481. In a suit for damages it was held that plaintiff was entitled to recover for the support taken from the adjoining soil so as to injure him. Busby v. Holthaus, 46 Mo. 161.

— Hon. GK D. ! Burgess, Judge. (1) The ordinance is within the - scope' of the powers conferred upon the town council, and is valid. Laws, 1872, p. 482; St. Louis v. JBoffinger, 19 Mo. 13, 15; Gas Co. v. Des Moines, 44 Iowa, 509; Dillon on Municipal Corporations, sec. 328; Powell v. Pa., 127 U. S. 678, and cases cited; Com. v. Brinton, 132 Pa. St. 69. (2) Defendants went “from place to place to sell” goods; they did sell and did in person thereafter deliver the goods so sold.

<p>Appeal from the Cass Circioit Court. — Hon. Chas. W. Sloan, Judge.</p>

— How. Chas. W.. Sloan, Judge. (1) There was no evidence of defendant’s negligence, and, therefore, the case should not have been submitted to the jury, and when, their verdict was. rendered it should have been set aside. Current v. Pail/road, 86 Mo. 62; ScMerethv. Railroad, 96 Mo. 509; Bowen v. Railroad, 95 Mo. 268; Brown v. Railroad, 20-Mo. App. 222; Jewett v. Railroad, 38 Mo. App. 48; Flan-nery v. Railroad, 23 Mo. App. 120; Gourley v¡ Railroad, 35 Mo.

— Hon. Chas. W. Sloan, Judge. (1) The duty of .the clerk, when the order for ■•change of venue was made, was to' “ make out a full transcript of the records and proceeding in the case.” R. S. 1889, sec. 2265. And his compensation is provided for in these words: “ For copies of records and papers, for every hundred words, ten cents. For certificate and seal, fifty cents.” R. S. 1889, sec. 4986. (2) Statutes providing for fees and relating to costs must he strictly construed.

— Hon. J. M. Sandusky, Judge. (1) The court below erred in giving plaintiff’s instruction 7. For this error • the case should be reversed. Puke v. Railroad, 99 Mo. .347; Smith v. Rail/road, 18 S. W. Rep. (Mo.); Norton [v. Rail/road, 40 Mo. App. 642, 647; Churchman v. Kcmsas City, 49 Mo. App. 366. (2) The court below erred in refusing defendant’s instruction 15. For this error the case should be reversed. State v. Brooks, 99 Mo. 137.

— Hon. E. M. Hughes, Judge. (1) The verdict is against the law and the facts of' the ease. The fact that the note and mortgage had $50 put into it to return to Jamison invalidates the whole-transaction, and renders the mortgage fraudulent per se. It is void in toto. R. S. 1889, sec. 5169; Hanna v. Finley, 83 Mo. App. 645. The fact of this $50 being-' put into the mortgage took from it all question of good faith.

.Appeal from the Hotvarcl Circuit Court. — Hon. John A. Ho chad ay, Judge. The court erred in refusing to sustain the demurrer to the evidence. There was no evidence showing in what township in Howard county the animal was killed. It is not sufficient to allege the jurisdictional fact, but it must be proved that the animal was killed in the township where the suit is brought, or in an adjoining township, and the omission of such proof is fatal. Manuel v. Railroad, 19 Mo.

— Hon. E. L. Edwards, Judge. (1) The taking of a solvent indemnifying bond by defendant Inge, as constable, as required by statute was a complete defense to this action. Hence plaintiff’s ■dismissal of her action against said constable. The taking of said bond by the constable not only protects him but is a protection to his deputies summoned by him, while they are acting under his authority and direction.

— Hon. John W. Henry, Judge. (1) That the statutory interplea in attachment suits in this state, when successfully prosecuted, is not a bar to the interpleader’s recovery of damages for the trespass in the wrongful taking, has been judicially detetmined in the following cases: Perrin v. Claflin, 11 Mo. 13; Clark v. Brott, 71 Mo. 473.

<p>Appeal from the Jasper Circuit Cotwt. — Hon. M. G-. McGteegoii, Judge.</p>

.Appeal from the Pettis Circuit Court. — Hon. Richard Field, Judge. “A condition in a message which stipulates that all ‘claims’ for damages must he presented within sixty •days after sending the message does not include the .statutory penalties denounced in sections 883 and 887, of the Revised Statutes, 1879.” Tel. Co. v. Colls, 1 S. W. Rep. (Ark.) 558.

— Hon. Richard Field, Judge. (1) Under the law and ordinances the city clerk of Sedalia might properly issue the new tax bills' declared on in the third amended petition, and said second amended petition did state a good canse of action, and it was error in the court to exclude said tax bills and any and all evidence, and to hold, as was done, that said petition did not state facts sufficient to constitute a cause of action.

— Hon. John W. Henky, Judge. (1) There was error in each ruling of the court below upon each objection made to each of the following questions: 14 to 44 inclusive. First. Such questions take the case from the jury and submit it to the witnesses. Eubank v.'Edina, 88 Mo. 650, 655; Gavisk v. Railroad, 49 Mo. 274, 277; Gutridge v. Railroad, 94 Mo. 468, 472; Muff v. Railroad, 22 Mo. App. 584; Belch v. Railroad, 18 Mo. App. 80. Second.

— Hon. D. P. Stbatton, Judge. . (1) There is absolutely no legal evidence in the case which shows that his death was either occasioned by the negligence of defendant, or any injury sustained by reason of any act of defendant. Defendant’s demurrer to the evidence at the close of the whole case should, therefore, have been sustained.

— Hon. C. H. S. Goodman, Judge. The court erred in excluding the following testimony offered by the plaintiffs: Here the plaintiffs offered the bank books of Robinson & Stephens, consisting of ledger, cash book and balance book, kept in the transaction of their business as bankers, and showing the transaction with defendant, and offered to prove that they were accurately kept, and that by universal custom entries were made and the books written up each day from the checks of…

Louis City Circuit Court. — Hon. Leboy B. Yalliant, Judge. (1) Where, by agreement of two tenants in common, one occupied a particular part of the common in severalty, as of a bouse for instance, and the other entered upon it without his consent, it was held that he might have trespass guare clausum fregit against his cotenant for making such entry. 1 Washburn on Real Property, p, 567; Klay v. Goodioin, 16 Mass. 1; Eider v. March, 46 Pa. St. 380.

Louis City Circ%iit Court. — Hon. Daniel Dillon, Judge. (1) The petition must show that the ordinances w^re passed upon the recommendation of the board of public improvements. Charter of St. Louis, R. S., art. 6, sec. 14, p. 2122. (2) The first part of the covenant to pay “all city, county and state taxes” does not obligate defendants to pay assessments for street reconstruction.

<p>1. Landlord and Tenant: nature oip contract. Whether a contract for letting is a lease, or a mere agreement for a lease, depends npon the intention of the parties, and such intention is to he gleaned from the instrument itself, and the surrounding circumstances.</p> <p>2. -: -. The contract in this case provided for a letting of parts of a building, then in the course of construction, for a term commencing from the completion of the building; and the landlord himself, at the time of the execution thereof, had no title to the premises, hut only an agreement for a lease. The tenant, however, on the completion of the building, entered into possession, and the contract did not, in terms, provide for the subsequent execution of any further document. Held,, that the contract would not be construed to be an agreement for a lease, and that the formal execution of a lease under it would not be decreed.</p>

<p>.Appeal from the St. Louis City Circuit Cou/rt. — -Hon. Leroy B. Valliant, Judge.</p> <p>(1) Under the articles of association the trustees have no power to maintain this action; they are not trustees of an express trust. Kuehl v. Meyer, 35 Mo. App. 211; Smith v. Finney, 49 N. W. Rep. 305; Heivett ■v. Hatch, 57 Yt. 16. (2) The failure of the society to hold meetings, taken in connection with what was done ■at the special meeting at which it was voted to dissolve, was in law an abandonment of the society, especially as the society did nothing to carry out the purposes of the organization between July 11, 1889, and February 20, 1892, a period of nearly three years, and but two meetings were held and no dues were paid by the members. ■Since the society was organized only $8 had been paid out for benefits, and since September, 1887, a period of five years, the society had done nothing but carry on this lawsuit. The last meeting of the society was July 19, 1891, but no business was transacted. On the last appeal-of this case this court said (42 Mo. App. 482) that, if the society for a period of eleven months failed to hold meetings provided for by the constitution, such failure was in law an abandonment of the society. Here is apparent a more flagrant neglect. Even in the case of corporations surrender of corporate franchise may be presumed from non user. Slee v. Bloom, 5 Johns. Oh. 366; State v. Trustees, 5. Ind. 77; Iron Go. v. Gleason, 24 Yt. 228. Failure on the part of a voluntary association to hold meetings has been held to amount to dissolution. Penfield v. Sldnner, 11 Yt. 298; Hewett v. Hatch, 57 Yt. 16. (3) When the-membership of the society became reduced to less than a constitutional quorum, so that it lost the power of transacting business and receiving new members, the society became thereby dissolved. This court has said that, so far as possible, the rules applicable tq corporations govern in cases of voluntary associations. Kuehl v. Meyer, 42 Mo. App. 474; Leach v. Harris, 2 Brewst. 571. And, under a similar state of facts, a corporation would be deemed to have been dissolved. In re Kip, 1 Paige, 576; Bex v. Passmore, 3 T. R. 245; State v. Societe Bepublicaine, 9 Mo. App. 121; State v. Trustees, 5 Ind. 77; 2Morawetz on Corporations, sec. 1007. (4)-The society being abandoned, or, if not abandoned, dissolved and rendered incapable of continuing its existence, the court below should have assumed equitable jurisdiction of the matter. On the former appeal this court practically held this view. Kuehl v. Meyer, 42 Mo. App. 474. And further authorities need scarcely be cited to support a principle so clear. But-terfield v. Beardsley, 28 Mich. 412; 1 Pomeroy on Equity Jurisprudence, sec. 112. When it is apparent that the objects for which an association has been organized are impracticable, or that such objects cannot be carried out, equity will interfere and wind up the affairs of the society. Waterhouse v. Mu/rgab-oyd, 9 L. J. Oh. 272; Beaumont v. Meredith, 3 Yes. & Beav. 181; Pea/rce v. Piper, 17 Ves. 1; Peeve v. Parkins, 2 Jac. & Walk. 390; Chicago v. Hunt, 20 N. E. Rep. ('Ill.) 55; Koehler v. Broivn, 2 Daly, 78; Abies v. McKern, 18 N. J. Eq. 462. .</p> <p>(1) The plaintiffs in this case are entitled to sne as trustees, and are the proper parties to sue this defendant. They aré intrusted with the ultimate authority in all financial matters by the constitution of the society. Constitution of Society, arts. 10,13. And the directors in unincorporated benevolent associations, such as this is, are trustees of an express trust. Hammer stein v. Parsons,^ Mo. App. 332,339; Watson v. Jones, 13 Wall. 679, 720. (2) The society never was-abandoned or dissolved. The second point in appellant’s brief includes an incorrect statement of facts and a mistaken conclusion of law. This court did not declare that failure to hold meetings alone constituted an abandonment of the society. Kuehl v. Meyer, 42 Mo. App. 474. Nor do any of the cases cited by appellant support that proposition. -On the contrary, they tend to support its converse. Iron Co. v. Gleason, 24 Vt. 228; Slee v. Bloom, 5 Johns. Ch. 366; State v. Trustees, 5 Ind. 77; Penfield v. Skinner, 11 Vt. 298;. Hewett v. Hatch, 57 Vt. 16. (3) The trustees are alone entitled to recover the money, even though it be only for the purpose of winding up the affairs of the society. This court holds that the laws affecting corporations apply by analogy to the case at bar. Kuehl v. Meyer, 42 Mo. App. 474. By analogy, then, even if the society had been dissolved, the trustees would be entitled to recover. R. S. 1889, sec. 2513. Nor have the majority of members the right to' divert the funds from the purposes of the trust. Watson v. Jones, 13 Wall. 679, p. 723; Bacon on Benevolent Societies, secs. 38, 39, and cases cited. And funds collected for a benevolent purpose cannot be divided among the members by a vote, even on the dissolution of the society. Buhe v. Fuller, 9 N. H. 536; s. o., 32 Am. Dec. 392, cited in Bacon on Benevolent Societies, sec. 39. (4) The defendant in this case cannot invoke the equitable powers of the court to avoid his legal liability. He who seeks equity must do equity. Kline v. Vogel, 90 Mo. 239. He who comes into equity must do so with clean hands. Cassidy v. Metcalf, 1 Mo. App. 593. Nor is it necessary to invoke the equitable powers of the court, or to have a complete account and winding up of the society’s affairs, in order to settle the rights of the members among themselves. Kuehl v. Meyer, 35 Mo. App. 206, 211.</p>

St. Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The action was joint, by two joint contracting obligees. The record shows that the judgment upon this petition is in favor of but one obligee. This is a fatal error or irregularity, which renders the judgment assailable by- defendants. Ohnsorg v. Twrner, 33 Mo. App. 488; Clark v. Cable, 21 Mo. 223; Rainey v. Smiser, 28 Mo. 310; Henry v.Mt. Pleasant Twp., 70 Mo. ■500; Ryan v. Riddle, 78 Mo. 521.

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

■Appeal from the St, Louis City Circuit Cowrt. — Hon. Jacob Klein, Judge. (1) The court erred in excluding the testimony of defendant’s brakeman regarding the sufficiency of the stop at Edgebrook, to have enabled plaintiff, by the exercise of ordinary diligence, to alight from the train in safety. Snyder v. Witner, 48 N. W. Rep. 1046; Railroad v. Hwitley, 38 Mich. 545.

<p>1. Evidence: sheriff's return to writ: matter of opinion. Matters of opinion or excuse relative to the performance of a duty in the levy of a writ„ of attachment cannot be made evidence by stating them in the return. The sheriff’s return is evidence only of official acts done in the usual course ,of proceedings.</p> <p>2. Practice, Trial: objections to evidence. But, when the sheriff’s return contains such matter of opinion or excuse, it must be objected to on that ground, in order to entitle a party to the exclusion of it.</p> <p>3. -: weight of evidence. The verdict in an action at law is conclusive as to an issue of fact, in regard to which there is a substantial conflict in the evidence.</p>

<p>Appeal from the St. Louis Court of Criminal Correction. Hon. J.. R. Claiborne, Judge. «</p> <p>Accepting money to be transmitted out of the state to a point where it is to be bet is not a violation of the statute. People v. Winn, 12 N. Y. Sup. 379; People v. Winn, 128 N. Y. 599. The information is defective for failing to show with whom the bet was made. 1 Chitty on Criminal Law [4 Am.' Ed.] 210, 211; Butler v. State, 5 Blackf. 280; Ball v. State, 7 Blackf. 242; Grover v. State, 6 Fla. 39; Sharpe v. State, 6 S. Rep. 657; Parrot v. State, 10 Ark. 574; Jester v. State, 14 Ark. -552. The statute on which the information is based does not forbid wagering, and, therefore, the information is fatally defective. Session Laws, 1891, p. 122. The first count in the information does not charge the defendant with the violation of any provision of the statute upon which the information is grounded. Session Laws, 1891, p. 122. The court erred in refusing to make the declaration of law as set out in defendant’s instruction, numbered 5. Session Laws, 1891, p. 122. The court erred in refusing to declare the law as expressed in defendant’s instruction, mambered 1. The state completely failed in the following particulars to make a prima facie case against the defendant: First, it offered no evidence to show that a pool was sold; second, that a bet was made; third, or ■that a race was run; fourth, or that there was any such horse as Matagorda in existence or entered in any race.</p> <p>In support of the judgment below, the respondent will rely on three propositions, namely: First. The act of the legislature of April 1, 1891, Laws of 1891, page 122, is a constitutional enactment. State v. Bwrg-doerfer, 107 Mo. 1. Second. The'first count of the information states an offense under said act. Third. The testimony in this case made out said offense. People v. Fisher, 17 N. Y. Sup. 162.</p>