Volume 51 — Missouri Appeal Reports

<p>1. Sale without Delivery: validity as to creditors. A sale of personalty, which is not followed by delivery to the purchaser and a. change of possession, is invalid as against the creditors of the seller.</p> <p>2. Execution: LEVY on mortgaged personalty. Personalty, which-is mortgaged, is subject to levy or execution against the mortgagor-before condition broken, and while the right of possession remains in, the mortgagor for a definite period.</p> <p>3. Chattel Mortgage: validity as to creditors of mortgagor-. Qucsre, whether a mortgage of personalty is valid as against process against the mortgagor, when it' is executed and recorded by the mortgagor without the consent or knowledge of the mortgagee before, but is not actually delivered to the mortgagee until after, a lien on the property has attached under the process.</p>

<p>1. Attachment: publication. An order of publication in a proceeding by attachment is valid, though it is made prior to the seizure of any property under the writ of attachment.</p> <p>2. Corporations: levy on shares. A writ of attachment or execution can be levied upon all the right, title and interest of the defendant in shares of stock in a corporation, though the shares do not stand in the name of such defendant upon the books of the corporation.</p> <p>3. Attachment: return on writ. A return of the levy of a writ of attachment upon all the right, title and interest of the defendant in the attached property is sufficient to confer jurisdiction for the purposes of a judgment in rem. (Newton v. Strong, 48 Mo. App. 588, distinguished.)</p>

<p>1. Master and Servant: obligation of master to notify servant OF SECRET DANGERS IN THE USE OF IMPLEMENTS. A master is bound to see that his employe— in this ease a youth, fifteen years old — has reasonable notice of a hidden danger in the use of an implement furnished by him to the employe, when such danger is known to him, but is one of which the employe might be ignorant without blame, and of which he may reasonably be supposed to have in fact been ignorant at the time he was hired.</p> <p>2. Negligence: INSTRUCTIONS. An instruction in this cause required the jury, as conditions to a verdict for the plaintiff, to find the acts of negligence complained of, and, further, that the plaintiff “was injured in consequence thereof.” Held that, although the instruction might have been more specific, it sufficiently required a finding that the negligence was the cause of the injury sued for.</p> <p>3. Practice, Appellate: weighing the evidence. A verdict in an action at law will not be vacated on the ground that it is against the weight of the evidence, unless it is so opposed to all the probabilities as to clearly indicate bias; nor is this rule affected by the law of 1891. (Session Acts, 1891, p. 70.)</p>

<p>1. Justices’ Courts: effect of payment of judgment to 'justice's olere. One who has recovered a judgment before a justice of the peace is not bound by a payment of the judgment, made without his consent to the justice’s clerk. Accordingly such payment will not debar the right of the judgment creditor to appeal from the judgment as insufficient, though it was made after the issue of execution at his instance. •</p> <p>2. Appeal: retrial in appellate court. Where the plaintiffs statement in a suit before a justice of the peace sets forth three causes of action in as many counts, and the justice renders judgment in his favor for the amount of one cause of action, but his docket entries fail to dispose separately of any of the several counts, an appeal by the plaintiff warrants a retrial on all the counts in the appellate court.</p>

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

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

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

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

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The alleged slanderous words charged in both counts, if spoken, were parts of one conversation and imputed but one crime to plaintiff, and, therefore, make but one cause of action. Hence, the court erred in overruling, before and after the taking of plaintiff’s evidence, defendant’s motion to elect. Casey v. Aubuchón, 25 Mo. App. 91.

<p>Bank Cheeks: negotiability. An ordinary bank check, not expressed to be for value received, is not a negotiable instrument in the broad sense which, protects a transferee when the cheek has been fraudulently procured.</p>

Eonis City Ci/rcuit Cou/rt. — Hon. Daniel Dillon, Judge. The agreed statement of facts and the orders in question show that Beyer, the defendant’s secretary, had no authority from his company, either express or implied, to sign the said orders. Thai! Beyer had such authority must be established by proof, as a condition precedent to recovery by the plaintiff. Bank v. Hogan, 47 Mo. 472; Fayles v. Ins. Go., 49 Mo. 380.

<p>1. Sales: reasonable time por rescission. To rescind a contract of sale for the breach of a warranty, the vendee must act within a reasonable time.</p> <p>2. -: -: law and pact. "What is a reasonable time is ordinarily a question of fact; but the time taken may be, and under the evidence in this cause it is held’ to be, unreasonable as a matter of law.</p> <p> Per Thompson, J.: </p> <p>3. Practice, Trial: instruction op nonsuit. An instruction of non-suit reaches any matter which operates to defeat the action, whether suggested to or considered by the court at the time, or not.</p> <p>4. Sales: contract por purnaoe in a dwelling. An agreement to furnish and erect a furnace in a dwelling, when the same is to be attached to the premises as a part of the building, is not a contract of sale, but a building contract.</p> <p>5. -: rescission op contract. To rescind a contract of sale the vendee must return or tender back in toto what he has received under it, so as to place the vendor in statu quo; when the vendee disables himself from so doing, he cannot rescind. And when the contract is one for a furnace, with which the vendor furnishes bricks in which to inclose it on the premises of the vendee, not only the furnace, but the bricks also, must be returned or tendered for the purposes of a rescission of the contract.</p>

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

Louis City Circuit Court. — Hon. Daniel Dillon, Judge.' (1) The trial court erred in giving the plaintiff’s first instruction, particularly the part in italics in the appellant’s statement. There was a fatal variance. This instruction authorized a verdict for the plaintiff, notwithstanding that there was a variance between the pleadings and the proof. .

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

— Hon. A. M. Woodson, Judge. This was a suit instituted in the circuit court of Buchanan county on a special tax bill for the cost of paving Fifth street, in the city of St. Joseph, against appellant’s lot fronting thereon. Special ordinance number 960 directed that said street be paved with vitrified brick, and curbed and guttered in accordance with specifications therefor on file in the office of the city engineer.

— Hon. E. M. Hughes, Judge. There was an improper misjoinder of two separate and independent causes of action in the third count of plaintiff’s petition, and this defect was properly taken advantage of by the defendant. McCoy v. Yearger, 34 Mo. 134; Otis v. Bank, 35 Mo. 128; Hoagland v. Railroad, 39 Mo. 451; Bank v. Bayliss, 41 Mo. 275; Buckie v. Railroad, 67 Mo. 245; Barker v. Bodes, 79 Mo. 88; Christal v. Craig, 80 Mo. 371; Brown v. Railroad, 20 Mo.

— Hon. James M. Sandusky, Judge. The indictment upon which the defendant was found guilty charges no offense against the laws in the state of Missouri. It was evidently intended to be founded on section 715, page 252, of the Revised Statutes of 1889, the only penalty prescribed by said section being a forfeiture of $50, to be recovered by civil action. This section is similar to section 5454, page 1071, Wagner’s Statutes, with reference to dramshop keepers.

— Hon. James M.' Sandusky, Judge. (1) The act of the street commissioner, sanctioned by the mayor, or any member of the board of aldermen in the absence of any ordinance, has no more binding ■force, as the act of the city, than the act of any other person; it is not the act of the city. Thrush v. City of Cameron, 21 Mo. App. 394; Crutchfield v. Wa/rrensbu/rg, 30 Mo. App. 456; Werth v. City of Springfield, 78 Mo. 107.

— Hon. Richard Field, Judge. (1) There was no evidence in this ease of an implied contract, and there was error in refusing to give instruction, numbered 6. In cases like the present the proof must be clear and convincing, and an alleged indebtedness against a deceased person’s estate for board for nine years is viewed with * great suspicion, especially when, as in this case, the deceased is a connection of claimant’s wife, and'is “ treated as a member of the family.” Wooclv.

<p>Appeal from the LaFayette Circuit Court. — Hon. Richard Field, Judge.</p>

— Hon. Richard Field, Judge. (1) The court erred in granting instruction 2 for respondent. The petition claims damages for having to replace certain corn, and the measure of damages, if any, would be the difference between what it cost to replace and the thirty-eight cents, the price claimed to have been agreed upon. The plaintiff offered no evidence as to when he replaced, or what he paid to replace the same.

— Hon. Richard Field, Judge. (1) The appellant at the time of the rendition of the judgment by the justice of the peace, and the revival thereof, was a resident of LaFayette county, and the execution from the office of the clerk of the circuit court could not issue until the return “nulla bona” of an execution from the court of the justice of the peace.

— Hon.Richaru Field, Judge. (1) The court erred in granting instruction 1 for defendant. It is the duty of the court to tell the jury what are the essential facts to be determined. Proctor v. Loomis, 35 Mo. App. 488; McGinnis v. Railroad, 21 Mo. App. 399; Fleischmann v. Miller, 38 Mo. App. 177; Bruemler v. Shenuit, 15 Mo. App. 192; Gessley v. Railroad, 26 Mo. App. 156; McMivrray v. Mcvrtin, 26 Mo. App. 437. (2) It is confusing and calculated to mislead the jury.

— Hon. Richaed Field, Judge. (1) The evidence of fraud in the execution of the deed of trust was improperly admitted. First. No allegation of fraud was made in any of the pleadings. Bigelow on Fraud, ch. 8, secs. 1, 2, p. 114. Second. No rights claimed by any of the defendants in this suit could be affected by such pretended fraud. Third.

— Hon. Richard Field, Judge. (1) An ordinance is constiued in the same way a statute is. Horr & Bemis’ Municipal Police Ordinances, sec. 193, p. 171; Burneltv. St. Louis, 76 Mo. 402. It must be construed in reference to the subject-matter, the objects that prompted and induced their enactment, and the mischief they were intended to remedy. Nenan v. Smith, 50 Mo. 525; Spilterv. Yowig, 63 Mo. 42; State v. Bevelmy, 66 Mo. 375.

— Hon. Rudolph Hikzel, Judge. ' (1) Although it appears from the plat of the town of Gasconade that the lines of the streets, marking their boundaries and location, did not extend across the lines marking the location and boundary of the railroad right of way, yet, where such plat shows that such streets are each laid out on both sides of such right of way, and extend up to its boundaries on each side, then such streets must be considered as laid out across such right of…

— Hon. W. H. Brownlee, Special Judge. (1) We most earnestly submit that when the unimpeached and uncontradieted testimony of the only eye-witnesses to an occurrence constitutes a perfect defense to an action, it is the duty of the court to set aside a verdict against such testimony, and founded merely upon conjectures and inferences. Pearson v. Railroad, 32 Mo. App. 543; Jennings v. Railroad, 37 Mo. App. 651; Garrett v. Greemoell, 92 Mo. 121; Moore v. Railroad, 28 Mo.

— Hon. G-. D. Bubgess, Judge. (1) As shown by the record in this case the tract of land owned by defendant, and upon which the road in question, in part, is claimed by the prosecution to have been established by use on the part of the public and acquiescence by the owners of the land, and which road is alleged in the information to have been obstructed by defendant by fencing up and including in his 'inclosure a few feet on the west side thereof, is military bounty land, and…

— Hon. Henry M. Ramey, Judge. * (1) What Flammer said, and what Hadden said Flammer said in their own favor in New York, was inadmissible for any purpose. There is no evidence or claim that anything was done toward ratification prior to levy of attachment. Criddle v. Griddle, 21 Mo. 522; Jones on Chattel Mortgages [3 Ed.] sec. 104, and cases cited; Darrell v. Donnelly, 38 Mo. 492; Cwrroll v. Frank, 28 Mo. 69; Wilson v. Albert, 89 Mo. 537.

— Hon. A. M. Woodson, Judge. • (1) The court committed error in refusing to permit appellants to prove by respondent, that the wheat he put into the car and shipped was wet, musty and worthless. Respondent claims that he sold appellants good wheat. (2) The court refused to permit appellants to prove by respondent how much bad wheat he put into said car by mistake, and of course this was error, and material error.

— Hon. Henby W. Ramey, Judge. The verdict of the jury was excessively small, when, under the law and all the evidence in the case, the appellant was entitled to recover substantial damages. It is calculated to shock the understanding, and to impress upon the mind the conviction that it was the result of the prejudice and passion of the jury. Dickson v. Railroad, 104 Mo. 491; Beck v. Railroad, 102 Mo. 544; Michigan City v. Boekling, Am. R. R. and Corp. Rep.

— Hon. C. H. S. Goodman, Judge. (1) The instruction closes outside of the law and issues in the case, by engrafting an intention of hindering or delaying creditors, while a fraudulent transfer of the goods so as to hinder or delay creditors is enough. (2) Instruction 6 is a comment on the testimony in an aggravated form. State v. Sivils, 105 Mo. 534-5, and cases there cited; Weil v. Schwarts, 21 Mo. App. 382; Jones v. Jones, 57 Mo. 142.

— Hon. Cyrus A. Anthony, Judge. (1) The court erred in refusing defendant’s instruction, numbered 3, that plaintiffs could not recover. The demand sued for was paid and satisfied by the surrender of the corporation stock in the old for stock of like amount in the new. The plaintiffs cannot annul prior dealings of their assignor. Jacobi v. Jacobi, 101 Mo. 507, 512; Boanv. Winn, 93 Mo. 503, 511; Hashell v. Worthington, 94 Mo. 560.

<p>Appeal from the Randolph Circuit Court. — Hon. John A. Hockaday, Judge.</p> <p>On the question of the manner of the inspection the lower court found the facts on appellant’s theory of the law against the appellant, and that is a complete answer to the objection that the inspection was not done according to statutory requirements. Bwayse v. Bride, 34 Mo. App. 414.</p>

— Hon. John A. Hockaday, Judge. (1) The court erred in making the declaration of law asked by the respondent. The note sued on is “negotiable,77 and its possession and production in testimony, with the indorsement of the payee thereon, constituted prima facie evidence of ownership. Bank v. Wright, 53 Mo. 153; Bubleman v. McNichol, 13 Mo. App. 584. “Also, prima facie evidence that it was acquired in good faith.77 Grella v. Boxen, 7 Mo.

— Hon. John A. Hockaday, Judge.' (1) The court below erred in rendering judgment upon the pleadings, requiring defendants to institute an action to try the title to the land in controversy. Webb v. Donaldson, 60 Mo. 394; Dyer v. Bamneister, 87 Mo. 134; Burt v. Warren, 30 Mo. App. 332; Bredell v. Alexander, 8 Mo. App. 110-7; Van Phul v. Penn, 31 Mo. 333; Dyer v. Krachauer, 14 Mo. App. 39. (2) The error complained of appears upon the record proper.

— Hon. John 'A. Hockaday, Judge. (1) This court will not permit a verdict and judgment to stand where there is no evidence to sustain it, and certainly there was none to warrant the verdict of the jury on the set-off claimed by appellant. Krider v. Milner, 99 Mo. 143, and cases cited in appellant’s brief; Avery v. Fitzgerald, 94 Mo. 207; Warren (1) The instructions are literal copies of those given in the case of Koch'.v. Hebei, 32 Mo. App. 103, and are approved by the court.

— Hon. £). P. Bailey, Special Judge. (1) Tlie application for a change of venue from the county as well as the judge, being regular in form, should have been granted. Revised Statutes, 1889, sec. 2262; State exrel. v. Price, 38 Mo. 383; Bowling v. Allen (1) Besides the cause being one in equity the application for a change of venue, because of the prejudice of the inhabitants of the county, was rightly overruled. Wolf v. Ward, 104 Mo. 127.

— Hon. John A. Hockaday, Judge. This suit was instituted by plaintiff in the circuit court of Callaway county, as the widow of Francis Brandon, deceased, in July, 1891, in which she sought to have annulled and set aside the gift and transfer of certain notes made by her husband in his lifetime to defendants, on the ground of fraud, charging and alleging in her petition that such gift and transfer were made with the intent and purpose of depriving and defrauding her out of…

— Hon. J. R. Edwards, Judge. (1) Instruction, numbered 1, given plaintiff is wrong. The presentment of a draft to the drawer must be made in a reasonable time. What is a reasonable timéis a question of fact, and depends on circumstances. Fugitt v. Nixon, 44 Mo. 297; Salisbury v. Renick, 44 Mo. 554; Linville v. Welch, 29 Mo. 205. (2) Instruction, numbered 2, given for plaintiff, is wrong, for the reason that there is nothing in the pleadings or evidence to base it upon.

— Hon. J. H. Slover, Judge. (1) The court erred in giving defendants’ first instruction: First. It is not within the issues made by the pleadings; it ignores the issue that Richter was not Kaufman’s agent at the time the alleged agreement was made; it is error by an instruction to change the issues made by the pleadings. Wright v. honda, 44 Mo. App. 634; 2 Thompson on Trials, sec. 2309.

— Hon. J. M. Davis, Judge. (1) The verdict is not merely informal but substantially defective. It expresses no sum of money whatever. Even if the dollar sign had been prefixed to the figures it is doubtful whether it would be sufficient. That being omitted, and no word used to indicate a sum of money, it is wholly insufficient to support a judgment. 3 G-raham & Waterman on New Trials, 1378, 1380-2; Henly v. Arluckle, 13 Mo. 209; Barney v. Baker, 48 Mo. 539; Goodallv.

— Hon. M. G-. McG-regor, Judge. On the undisputed testimony of plaintiff and defendant, the court should have given the peremptory instruction directing a verdict for plaintiff as prayed. Bank v. Stanley, 46 Mo. App. 440; 1 Daniel on Negotiable Instruments [4 Ed.] sec. 850. The court did not err in refusing the instructions ••asked by plaintiff as they were not predicated upon the ■evidence.

— Hon. Chas. W. Sloan, Judge. This action is in the nature of an exception to the ■general rule that a married woman cannot be sued. She executed the note while single, and is estopped to ■avoid payment by her act of marrying, and a general judgment should be rendered against her, and a special ■one against her husband. Obermayer v. Greenleaf, 42 Mo. 307; Gruenv. Bamberger, 11 Mo. App. 261; Babb v. Bruere, 23 Mo. App. 604; Wisdom v. Newberry, 30 Mo.

Error from the Jaclcson Circuit Court. — Hon J. H. Slover, Judge.' (1) The promise to pay for the reasonable value of plaintiff’s services which the law would infer, assuming his account of the telephone message to be true, was not within the statute of frauds. (2) The court erred in refusing to give the declarations of law asked by plaintiff.

— Hon. James Gibson, Judge. (1) The court below erred in permitting witness Armp.u to testify that there was nothing to have prevented the gripman from seeing the wagon. Hardenburg v. Cockraft, 5 Daly, 79; Winters v. Railroad, 39 Mo. 468; Gavisk v. Railroad, 49 Mo. 274; Reid v. Ins. Co., 58 Mo. 421; Eubanks v. Edina, 88 Mo. 650; Gutridge v. Railroad, 94 Mo. 468; Walton v. Railroad, 40 Mo. App. 544; Naughtonv. Stagg, 4 Mo.

— Hon. R. H. Field, Judge. (1) The petition does not state facts sufficient to constitute a cause of action in this: First, treated as a suit against an indorser, the petition fails to allege an indorsement; second, it fails to allege demand, nonpayment, protest, and a notice of non-payment, or a waiver thereof; third, it is only alleged that defendant made a certain writing, therein “waiving notice of protest and demand.” The indorsement ought to have been pleaded according…

<p>Mechanics’ Lien: sufficient account. A paper merely stating between what dates material was furnished, and where it was used, hut not attempting to state an account or the items thereof, is not a sufficient lien account.</p>

— Hon. E. M. Hughes, Judge. Cl) Assured not being sole, unconditional owner in fee simple, policy is void. Could cite scores of cases, but not necessary. Barnard v. Ins. Co., 27 Mo. App. 33; 1 May on Insurance [3 Ed.] sec. 294y. (2) Plaintiff dealt with an agent of limited authority. This limitation upon his authority was clearly expressed in the application, also in the policy retained in the possession of the plaintiff for one year, eight months and nine days.

<p>1. Information: sufficient for disturbing worship. An information for disturbing a religious assembly, which charged, that it was unlawfully and wilfully done, is sufficient without alleging it was maliciously and contemptuously done.</p> <p>2. -: -: place of worship. An information for disturbing a religious assembly sufficiently charges that the disturbance was done at the place of worship, by saying “within the place of meeting,” to-wit: At the Methodist Episcopal church, etc., by assaulting one S., a person then and there being, etc.</p> <p>3. -: -: M. E. church. Whether the church charged is the Methodist Episcopal church or the Methodist Episcopal church, South, is a question arising on the evidence, and not on a demurrer to the information.</p> <p>4. -: -. The information in this ease clearly charges at least two acts, either of which constitutes a misdemeanor under the statute.</p> <p>5. -: -: ASSAULT. If the information is insufficient under the statute for disturbing religious assemblies, it sufficiently charges an assault at common law and under the statute.</p>

. .Appeal from the Bay Circuit Court. — Hon. James M. Sandiísky, Judge. The court erred in giving to the jury, at the ■request of the plaintiff, the instruction on the measure of damages. This instruction is obviously erroneous in ■advising the jury that they may assess the value of the horse damaged, and the value of the wagon and harness •damaged or destroyed, when the measure of damages is the depreciation in the market value. Harrison v. Bailroad, 88 Mo. 625.

— Hon. James M. Sandusky, Judge. (1) Appellant insists that his objections to the introduction of county court record (recounting of the votes) should have been sustained, because said count was not made within five days after the holding of said election. Revised Statutes, 1889, sec. 4684; State v. Searcy, 46 Mo. App. 429; Bowen v. Hixon, 45 Mo. 344: State v. Searcy, Supreme Court, April Term, 1892.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) If respondent found the goods were not up to the sample in quality, it had a right to rescind the contract, and sue for the purchase money paid thereon, or to affirm the contract and sue upon the warranty for a breach thereof. Wharton on Contracts, sec. 282; Benjamin on Sales [4 Am. Ed.] sec. 882; Walls v. Gales, 6 Mo. App. 243.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The verdict is excessive. By the plaintiff’s instruction, numbered 2, the court limits the right of' recovery to compensation for injuries done plaintiff’slot by drainage or sewage flowing through the pipe laid, under Broadway by defendant from April 21, 1886, today of verdict. And, by the third of the defendant’s instructions, the court excluded all permanent or prospective injuries from the consideration of the jury.

<p>1. Judgments Obtained py Fraud: equitable relief: laches. Fraud in procuring a judgment is ground for equitable relief, but such relief is granted only when it is made to appear that the complainant himself was free from negligence.</p> <p>2. ———: -: -. And where the parties to an action, set for trial before a justice of the peace, had orally agreed that the plaintiff should have a continuance entered, and the plaintiff in violation of that agreement procured the entry of a judgment in his own favor, it was held that the failure of the defendant to attend the trial, or to look after the cause until the time for an appeal from the judgment had 'expired, did not constitute laches.</p> <p>3. -: -: SOLVENCY OF PARTY CHARGED WITH THE FRAUD. The solvency of a party, charged with having procured a judgment by fraud, does not affect the right of the injured piarty to relief in equity against the enforcement of the judgment.</p>

<p>1. Druggists: subbcena duces tecum for prescriptions: criminal prosecution for disobedience. A subpoena duces tecum, requiring a druggist to produce before a grand jury prescriptions compounded by him, or by those in his employ, must specify, with some particularity, the prescriptions to be produced. A requirement for the production of all prescriptions compounded by him between specified dates — in this case during a month — is insufficient, and the disobedience of it by the druggist will, therefore, not warrant a criminal prosecution under section 4622 of the Revised Statutes of 1889.</p> <p>2. -: -:-: indictment. An indictment against a druggist under said section for disobeying a subpoena duces tecum for the production of prescriptions so compounded must show a sufficient service of the subpoena, and should, therefore, specifically allege an actual service of the subpoena and the date thereof.</p>

<p>1. Pleadings: amendment op petition in action por penal damages por trespass. In an action for penal damages under Revised Statutes, 1879, section 3922, for tke wrongful removal of fences inclosing land of tke plaintiff, tke petition may be amended by a change in tke description of tke land.</p> <p>2. Practice, Appellate: assignment oe error based upon voluminous evidence: duty oe appellant. In this cause the appellant objected to ah instruction as unwarranted by the evidence, which was made up largely of documentary evidence, and was very voluminous. The appellant did not make an abstract of this evidence, nor did he point out in what respect it failed to warrant the instruction. Melcl, that this court was justified, under these circumstances, in refusing to consider this assignment of error.</p> <p>3. Married Women: injury to lands: right oe action. Semble that, where the legal title to land is in a married woman and fences on the same are wrongfully removed, the right of action for penal damages for the removal of the fences is in her, and not in her husband.</p> <p>4. Practice, Appellate: amendment oe judgment in appellate court. When an action is commenced, and judgment is recovered, in the names of both husband and his wife for injury to the lands of the latter, and the right of action is in the husband alone, the judgment can be amended by the appellate court by striking out the name of the wife.</p>

Louis City Circ%iit Court. — Hon. Daniel D. Eisheb, Judge. (1) The motion for new trial does not appear by the bill of exceptions to have been filed in time-. State ex rel. v. Gaither, 77 Mo. 304; Dempskev. Hunter, 23 Mo. App. 466; State to use v. Mason, 31 Mo. App. 211. (2) The lien account was sufficient. DeWittv. Smith, 63 Mo. 263; Gibson v. Nagel, 15 Mo. App. 597; Brims v. Braun, 35 Mo. App. 337; Hayden v. Wulfing, 19 Mo. App. 353; McLaughlin v. Schawacker, 31 Mo.

<p>.Practice, Appellate: excessiveness op verdict in an action por personal injury. It is the province of the jury to determine the value of bodily and mental suffering in an action for personal injuries, and the verdict should not be interfered with on appeal, unless the evidence leads to the conclusion that the jury were inflamed by ’ passion which led them to disregard the facts bearing on the right of recovery. And in this cause this court declined to interfere, though of opinion that the damages assessed were excessive.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The judgment for plaintiff being upon a petition for price of goods sold and delivered presupposes a completed delivery, and cannot stand on appeal taken where the record shows that the goods were never in fact accepted by the defendants. Atwood v. Lucas, 53 Me. 508; s. o., 89 Am. Dec. 713; Fvans v. Harris, 19 Barb. 416; Brecheisen v. Coffey, 15 Mo.

Louis City Circuit Coxvrt. — Hon. Daniel Dillon, Judge. (1) The court erred in overruling plaintiff’s challenge to jurors Meier and Messmore on their voir dire examination. Revised Statutes, 1889, sec. 6083; State v. Bank, 10 Mo. App. 485. It is universally held that the special designation by statute of certain causes of disqualification creates no limitation against others not so designated, which are clearly founded on the demand for an impartial trial.

— Hon. W. D. Hubbard, Judge. The record of the county court of Christian county shows that every step necessary to the adoption of the local-option law in said county was taken, and said law was duly and legally adopted on the seventeenth clay of December, 1887, and that notice of said result was duly published as shown by affidavit of publisher, and said law was in force in said county,.from the date of the filing of said information to trial of this case.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The only question involved in this case is whether the court erred in holding that the notice of the appeal was served too late. The defendant maintains that the notice was served within the time limited, having been served on April 17, 1891, more than ten days before the June term of the circuit court of St. Louis city.

Louis City Circuit Cou/rt. — Hon. Jacob Klein, Judge. (1) The court erred in admitting the testimony of respondent with respect to the amount of his traveling expenses and value of the time lost by him in his trip to St. Louis and return, as such damages were not pleaded. State ex rel. v. Blackman, 51 Mo. 320; Brown v. Railroad, 99 Mo. 318; Adams v. Gardner, 78111. 568; Buckley v. Holmes, 19 111. App. 530; Stamping Works v. Hoehler, 45 Hun, 150; Jutte v. Hughes, 40 N. Y. Sup.

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

Louis City Circuit Court. — Hon.. Leroy B. Yallí ant, Judge. The defendants had their day in court; it is too late now to seek to have the judgment set aside or annulled. Judgments and decrees regularly entered against infants are presumed to be valid and binding upon them. Tyler on Infancy [2 Ed.] sec. 119, p. 175; Shields v. Potoers, 29 Mo. 315; Kegan v. Alcwm, 9' Tex. 25; Wrisley v. Kenyon, 2 Will.

— Hon. Henby M. Ramey, Judge. , , (1) As member of a trading partnership, more ■especially being resident and managing partner, James I. Button had “authority implied by law to bind” the respondent, “by commercial paper executed in the firm-name.” Beardorf v. Thatcher, 78 Mo. 131; Beitz v. Regnier, 27 Kan. 105; Parsons on Partnership [2 Ed.] 211; Haldeman ' é Grubb v. Bank, 28 Pa. St. 440; Bimsen v. Negley, 25 Pa. St. 297; F&wrt v. Brown, 23 Mo. App. 332, 336.

— Hon. Henry M. Eamey, Judge.. This judgment confirmed, by the supreme court of -a sister state, and justly owing by respondents, they should pay to appellant. They are estopped from denying the validity of the judgment or of its assignment. The sheriff, in whose favor the judgment was rendered in the replevin suit, had no interest therein at the time of the assignment which he could assign to plaintiff.

— Hon. Chas. H. S. Goodman, Judge. (1) The demurrer to the evidence offered at the close of plaintiff’s testimony should have been sustained. There is no evidence in the record of a contract to do the work, between plaintiff and defend-ants. The strongest construction that can be placed ■on plaintiff’s unsupported testimony is that defendants simply agreed, orally, to see him paid, and this comes within the statute of frauds. Revised Statutes, 1889, sec. 5186; Bissigv.

— Hon. Richard Field, Judge. (1) The court erred in allowing evidence of repairs made after the accident occurred. The fact of repairs is not evidence of negligence. Fly v. Railroad, 77 Mo. 34, 37; Hipsley v. Railroad, 88 Mo. 349, 354; Alcorn v. Railroad, 18 8. W. Rep. 188; Railroad v. Clem, 123 Ind. 15; 18 Am. State Rep. 303 n; Dale v. Rairoad, 73 N. Y. 468; Dougcmv. Trans.

— Hon. Richard Field, Judge. (1) There was no contract- with Lena Perry, and the property upon which the building was erected belonged to her. No mechanics’ lien could be enforced against the lot or building thereon. Marble & Lime Co. v. Bauman, 44 Mo. App. 391; Garnett v. Berry, 3 Mo. App. 197; Collins v. McGraiv, 47 Mo. App. 495; Barker v. Berry, 8 Mo. App. 446; Mill Co. v. Brundage, 25 Mo. App. 268; Hughes v. Anslyn, 7 Mo. App. 400; Meyer v. Broadxoell, 83 Mo. 571.

— Hon..Chas. W. Sloan, Judge., (1) Evidence of the mere notoriety of the dissolution of partnership is not admissible to effect a party with’ notice of that fact, it not appearing that such party had actual knowledge thereof, or that notice of ■dissolution had been published in any newspaper. Pitcher v. Barrows, 28 Am. Dec. 32.

— Hon. Chas. W. Sloan, Judge. (1) The evidence is that the mortgagor retained possession of the goods and continued the sale thereof in the usual course of trade, applying the proceeds to her own use, and that of this the plaintiffs well knew, and made no objections thereto; and the evidence shows that such was the agreement ah initio.

— Hon. Q-. D. Burgess, Judge. (1) The verdict is so opposed to the overwhelming preponderance of the testimony as necessarily to imply partiality and prejudice on the part of the jury. Empey v. Gable Go., 45 Mo. App. 422; Balter v. 8tone-br'alter, 36 Mo. 338; Whitsett v. Ransom, 79 Mo. 258; Sjpohnv. Railroad, 87 Mo. 74; Garrett v. Greemvell, 92 Mo. 120. (2) The verdict is in contravention of the instructions given by the court. Rafferty v. Railroad, 15 Mo.

— Hon. G. D. Burgess, Judge, (1) The application having been taken by an agent of limited authority, and the assured having agreed both in the application and the policy, that the “company should not be bound in any act or statement made to or by any agent, and not contained in the application,” it was error to permit the plaintiffs to show that they signed the application in blank, and to hold that they were not bound by its terms. Loehner v. Ins.

— Hon. G-. D. Bubgess, Judge. (1) The court should have granted the defendant a new trial. The showing made by the defendant as to the newly-discovered evidence was sufficient to authorize the court to set aside the verdict and grant a new trial. Alexander r. Solomon, 15 S. W. Rep. 906; Powell on Appellate Procedure, p. 257; Jackson v. Sternbergh, 1 Caines, 162, 166; Weber v. Weber, 5 N. Y. Sup. 178.

— Hon. W. H. Brownlee, Special Judge. (1) The ninth clause of this policy, which bound him to furnish proofs of loss within thirty days, is a part of the consideration upon which the defendant company agreed to insure Eulton, and a full compliance therewith is a condition precedent to his right of recovery. Wood on Insurance, sec. 436; May on Insurance, sec. 465; Ostrander on Insurance, p. 398; Owen v. Ins. Co., 57 Barb. (N. Y.) 521; Ins. Co. v. Deford, 38 Md. 400; Ins.

— Hon. Henry M. Eamey, Judge. All the questions raised on the record in this case are answered in favor of appellant, by the opinion in Rail Bros. v. McCrary, 45 Mo. App. 365, decided by this court, May 11, 1891, but not reported till after the decision of this case at the circuit. That case cannot be distinguished from this. There plaintiffs showed by their lien paper that they were entitled to a lien upon the building, and not entitled to one upon the land.

— Hon. Henry M. Ramey, Judge. * (1) Plaintiffs’ evidence sustained the grounds for attachment charged in the affidavit, and should have been submitted to the jury. Rainwater v. Faconesowich, 29 Mo. App. 26, cases cited. (2) First. The judgments are judgments by confesssion. Loth v. Faconesoivich, 22 Mo. App. 68; Davis v. Wood, 7 Mo. 651; Black on Judgments, sec. 50; Chestnut v. Pollard, 13 S. W. Rep. 825; Boyd v. Fur. Co., 38 Mo.

<p>G. Fraudulent Conveyances: contract op principal and agent: instruction. An instruction of writing providing that interpleader was to furnish the defendant, as their agent, certain goods which the latter was to sell for cash, and account for the proceeds after retaining as compensation the amount received in excess of prices fixed, establishes the relation of principal and agent, does not have to be acknowledged or recorded, and its validity is not affected by section 5180, Revised Statutes, 1889, and the jury should be so -.-instructed.</p> <p>2. -: trial practice: meaning op writing for court. A contract whose meaning does not depend on collateral facts, and is unambiguous in its terms, must haye its meaning determined by the court.</p> <p>3. -: -: instruction: good faith. An instruction in this case is held not improper because the term “good faith” is employed therein without defining it.</p>

— Hon. E. L. Edwards, Judge. (1) The demurrer to the first count should have-been sustained. There was not sufficient evidence that the cow was struck by the defendant’s locomotive, or train of cars. O’ Donnell v. Railroad, 7 Mo. App. 190; Gilbert v. Railroad, 23 Mo. App. 65; Lindsay v. Railroad, 36 Mo. App. 51.

— Hon. E. L. Edwards, Judge. (1) In the absence of notice to the public, that it will carry passengers on its freight trains, a person is bound to take notice from the kind of train, its make-up, and the kind of cars of which it is composed, that it is only a freight train, and not intended to carry passengers. Powers v. Railroad, 153 Mass. 188; Files v. Railroad, 149 Mass. 204; Faton v. Railroad, 57 N. Y. 383.

— Hon. John A. Hockaday, Judge. (1) The complaint improperly joins two causes of action in one count. By section 2611 of the Revised Statutes, two distinct and separate duties are imposed. The breach of one of these duties is not a breach of the other, and gives a different cause of action from that arising out of a breach of the other. They should, therefore, be separately pleaded.

— Hon. Thomas Shackelford, Special Judge. (1) The cause was improperly transferred from the eleventh to the second judicial circuit. Revised Statutes, 1889, sec. 2262, p. 584; Dunklin Co. v. Clark, 51 Mo. 60; Clements v. Greemvell, 40 Mo. App. 589; Darling v. Allen, 88 Mo. 293; State v. Gabriel, 88 Mo. 631; State ex rel. v. O’Bryan, 102 Mo. 254; Catron v. LaFayette Co., 106 Mo. 659; Railroad v. Reynolds, 8 Kan. 623; Coover v. Davenport, 1 Heisk.

— Hon. James G-ibson, Judge. (1) The court will in this case, as a matter of law, say whether or not, under all of the facts, the defendant bank is liable. Bricker v. Bank, 18 Pac.

Appeal -from the Buchanan Circuit Court. — Hon. O. M. Spencer, Judge. (1) The note was barred by the statute of limitation over eleven years, when suit was brought on the third day of July, 1884. Respondent sought to avoid the effect of the statute by proving that the sum of $50 had been paid upon the note by appellant on the fourth day of July, 1874.

.Appeal from the Jackson Circuit Court. — Host. R. H. Field, Judge. (1) The law is well settled, if the law of the state where the cause óf action arose extinguishes the same, that after its extinction suit cannot be enforced in a foreign jurisdiction; whereas, if such law merely bars the remedy, the law of the-forum governs. Baker v. Stonébraker, 36 Mo. 349; Carson v: Himter, 46 Mo. 467; McMurty v. Morrison, 62 Mo. 140.

— Hon. E. L. Edwards, Judge. (1) By the introduction of the special contract of shipment in evidence, the burden of proof was shifted, and defendant was entitled to a finding in its favor, unless the plaintiff then introduced evidence of negligence on defendant’s part, causing the breakage of the machine. Witting v. Bailroad, 101 Mo. 631, and authorities cited; Bead v. Railroad, 60 Mo. 199; Davis v. Railroad, 89 Mo. 310; Witting v. Railroad, 28 Mo.

Frror to the Johnson Circuit Court. — Hon. Chas. W. Sloan, Judge. Held: without conflict, that since the adoption of the code it was competent in an action at law to show by parol evidence that an instrument absolute on its face was intended by the parties as a security for debt — a mortgage. Quick v. Turner, 26 Mo. App. 36; Bassett v. Glover, 31 Mo. App. 156; Netvell v. Keeler, 13 Mo. App. 189; Mfg.

— Hon. M. G. McGregor, Judge. (1) The court erred in its instructions requiring the jury to return a verdict for the defendants.

— Hon. C. H. S. Goodman, Judge. (1) The court erred in excluding the contract offered in evidence. The contract is not pleaded according to its terms or its form, but according to its legal effect, and the date is not essential except upon the question of identity. 2 Greenleaf on Evidence [11 Ed.] sec. 12.

— Hon. James G-ibson, Judge. The only question in the case is, was the variance between the deed from Ritchey and Shaver to Mrs. Race, the respondent, and which recited that she agreed to pay an “incumbrance amounting to $1,200 at eight and one-half-per-cent, semi-annual” interest and the mortgage, set out in plaintiff’s petition and shown in evidence, fatal?

— Hon. Henry M. Bamey, Judge. (1) A delivery to the railroad company, to be shipped by the usual channel, was a delivery to respondent. The telegrams show that the word “delivered” has reference to the price alone. Glasgow v. Micholson, 25 Mo. 29; Comstock v. Ajfoellin, 50 Mo. 411; Graff v. Foster, 67 Mo. 512.

Covrt. — Hon. The defendant has appealed from a judgment in plaintiff’s favor on account of alleged injuries received by him at a public road crossing near Odessa, Missouri, June 3, 1890. Since the main question is, whether or not the trial court erred in declining to sustain a demurrer to the evidence, we proceed to detail as briefly as we can the facts as they are shown by the record. The plaintiff lived on a farm about five miles southwest of Odesssa, in LaEayette county.

<p>1. Mechanics’ Liens: jurat to lien: affidavit unsigned. The fact that the jurat to the affidavit to the lieu account is not signed by the officer through oversight ought not to nullify the paper, and he should be permitted to attach his signature.</p> <p>2. - — —■ : affidavit on belief. An affidavit on belief of the affiant is a substantial compliance with the lien law.</p> <p>:3. -: unsigned jurat: evidence: practice. Where the jurat is unsigned, it is proper to prove that the affidavit was, in fact, properly sworn to, preliminary to the offer to attach the officer’s signature.</p>

— Hon. Eichabd Field, Judge. (1) There was an utter lack of diligence on the part of defendant Kelly, in not discovering this newly discovered evidence until after judgment had been rendered against bim upon the first trial, and the record will not sustain this tampering with tbe first judgment rendered in favor of tbe plaintiff. And diligence is beld to be a vital test.

.Appeal from the St. Louis City Circuit Court. — Hon. ' Jacob Klein, Judge. (1) The court erred in the admission and exclusion of evidence. Burns v. Railroad, 24 Mo. App. 10; Carpenter v. Wilmot, 24 Mo. App. 589. (2) The court erred in giving instructions asked by the respondent, and also in giving instructions of its own motion.

Louis City Circuit Court. — Hon. Daniel Fisheb, Judge. All of the testimony (which is set out in full in the transcript) shows that appellant was not to be charged with the seventy pounds of bad tobacco, and that the cost of rewrapping the thirteen thousand cigars was to be borne by the respondent.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. (1) The court erred in giving the instructions it gave of its own motion, in giving the instructions asked by plaintiff, and in refusing to give the instruction asked by defendant, viz., that plaintiff could not recover under the pleadings and the evidence. Bowen v. Railroad, 75 Mo. 426; Boninev. City, 75 Mo. 437; Condon v. Railroad, 78 Mo. 567; Hollander v. Koetler, 20 Mo. App. 79.

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. (1) The court erred in excluding the testimony of Messrs. Koerner and Parker concerning their conversation with the office of Morrell & Gerrans by telephone, because they could not identify the voice at the other end. The evidence showed that previous requests, made in the same way, with the same office, had been acted on. This made the evidence competent. Printing Co. v. Stahl, 23 Mo. App. 451.

<p>1. Sales: nominal damages. When the vendee under an executory contract for the sale of personalty sues the vendor for non-delivery of the articles sold, he may recover nominal damages in the absence of evidence of his actual damages-</p> <p>:2. -: non-delivery by vendor: damages: pleading. Semble that, if such vendee has paid earnest money on account of the articles not delivered by the vendor, he may plead and recover the same as damages for the breach of the contract by the vendor.</p> <p>:3. Pleading: requisites op each op several counts. Each count in a petition must stand as an independent statement, and each must contain all the allegations necessary to the statement of a cause of . action. When there are several counts, mere matter of inducement need not be restated; but all constitutive facts must be stated in each v count.</p> <p>4. Practice, Trial: effect of reversal of judgment on appeal.. Seld, arguendo, that, when the petition in an action at law consists, of several counts for different causes of action, and the judgment in-the cause is reversed on appeal therefrom for error in the trial under one count, and the cause remanded for retrial, the entire judgment: is vacated, and the retrial must be under all the counts.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The judgment in the partnership accounting suit between plaintiff and wife against the defendant was conclusive as to the ownership of the money, .alleged in the criminal information to have been stolen by plaintiff, and estopped the latter from asserting title ■thereto in his wife, or from denying that it was the prop«erty of the defendant.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. The court erred in instructing the jury that the plaintiff could not recover on the first item of the plaintiff’s account. There was some evidence to sustain the action on the item in question, and where there is any evidence at all, however slight it may be, and whether direct or inferential, it must go to the jury, who are the exclusive judges of its weight and sufficiency. Taylor v. Short, 38 Mo.

<p>Appeal from, the FranMin Circuit Court. — Hon. Rudolph Hirzel, Judge.</p>

Louis City Circuit Court. — Hon. Leroy B.'Valliant, Judge. (1) The court erred in excluding from evidence the beer book or pass book of defendant. This book, according to defendant’s testimony, contained the item of $93 rent sought to be recovered by plaintiff, and also the balances between plaintiff and defendant.

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

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

— Hon. Ben. E. Turner, Judge. There are no bastardy laws in this state. At common law the «mother is the natural guardian of an illegitimate child, and is bound to support it. No such obligation to support the child attaches to the father. The contract in suit is, therefore, without consideration. Nine v. Starr, 8 Or. 49; Tyler on Infancy & Coverture, p. 285; Schouler on Domestic Relations [2 Ed.] top p. 384; 1 Parsons on Contracts [7 Ed.] p. 338.

Louis City Circuit Gowrt. — Hon. Daniel D. Fisheb, Judge. (1) The obligation of a surety on a bond is limited to the precise terms of the undertaking. To the extent and in the manner and under the circumstances pointed out in the instrument he is bound, but no further. Hof singer v. Hartnett, 84 Mo. 549; Bauer v. Gabanne, 108 Mo. 110; Cochrane v. Stewart, 63 Mo. 424; City v. Sickles, 52 Mo. 122; State to use v. Boon, 44 Mo. 254; Mfg. Co. v. Hibbs, 21 Mo.

<p>Practice, Appellate: judgment for right party: non-pee judicial eeror. The evidence in. this cause is reviewed, and held insufficient to support the action of the plaintiff: for damages for deceit. The judgment of the trial court is, therefore, affirmed, as being for the right party, regardless of intervening errors, which are held to have been non-prejudicial.</p>

Louis City Circuit Court. — Hon. Daniel D. Eishek, Judge. The carrier is responsible for damages resulting from failure to deliver promptly. Lawson v. Railroad, 79 Mo. 296; Hutchinson on Carriers [2 Ed.] sec. 328. Damages are such as naturally arise from failure to deliver promptly. Pruitt v. Railroad, 62 Mo. 534; Railroad v. Lumbar, 20 111. 623; 71 - Am. Dec. 291; Railroad v. Rae, 18 111. 488; 68 Am.