Volume 52 — Missouri Appeal Reports

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

Hon. E. M. Hughes, Judge. (1) A manufacturer, adopting a certain symbol or device and affixing it to Ms goods as a trademark, if the same be in law a proper trademark, acquires an exclusive right to the use of that particular symbol or device, in connection with that particular class of goods which he so manufactures and stamps with such symbol or device; and he is entitled to the interposition of a court of equity to enforce this right by perpetual injunction against anyone…

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

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. (1) The trial court erred in sustaining the demurrer to that portion of the answer which pleaded an estoppel. Revised Statutes, secs. 1997, 2000, 2003, 4425-4427; Bigelow on Estoppel, pp. 553, 697, note 3; Chilton v. Scruggs, 5 Lea, 316; Hilton v. Zimmermann, 5 Sneed, 40; Banlev.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Underthe J.aw of Illinois the defendant comp any had no corporate existence, and was not authorized to proceed to the transaction of any business, until its certificate of incorporation was recorded in the office of the recorder of deeds of St. Clair county, its principal office being located in that county. Act approved April 18, 1872, sec. 4.

<p>Practice, Appellate: duty or appellant in resard to transcript. In all cases, in which a hill of exceptions is filed, the appellant should, notify the clerk whether he desires a perfect transcript of all the proceedings, or merely a transcript of the record entry of the judgment and appeal; and he is in default if he fails to do so.</p>

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

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

Louis City Circuit Court. — Hon.. Daniel Dillon, Judge. (1) Where there is a breach of warranty, the vendee may return the property and rescind the contract within a reasonable time, or he may retain it, and, when sued for the purchase money, plead a total or partial failure of consideration. Branson v. Turner, 77 Mo. 489.

Louis• City Circuit Court. — Hon1 Jacob Klein, Judge. Revised Statutes, section 6856, provides that the husband is liable to an action for maintenance in a case where, without good cause, he refuses or neglects to maintain or provide for his wife.

— Hon. E. M. Hughes, Judge. (1) Plaintiff contracted with Laird, whose authority as agent he knew to be limited, for an insurance policy, It was his duty within a reasonable time after the receipt of the policy to examine it, and if erroneous to have it corrected. His failure to complain of the provisions of the contract is an acceptance of them. Ins. Co. v. Neiberger, 74Mo. 168; Clemv.lns. Co., 29 Mo. App. 666.

<p>1. Evidence: leading questions. It is within the discretion of the trial court to permit leading questions in the examination of a witness.</p> <p>2. -: IMPEACHMENT OF WITNESS: LAYING FOUNDATION. When it is sought to impeach a witness by proof of his prior declarations, inconsistent with his testimony, a foundation must be laid therefor by directing the attention of the witness to such prior declarations, so as to afford him an opportunity to say whether he made them, and to explain them, if made.</p> <p>3. Presumptions: burden of proof. When an indebtedness is once shown to exist, it is presumed to continue unless the contrary is shown. Accordingly, when a collection of money by an agent for his principal is established, there is no presumption that he has paid or accounted for it to his principal.</p> <p>4. Principal and Agent: statute of limitations. With respect to a claim by a principal against his agent for money collected by the latter for him, the statute of limitations does not begin to run until the principal has notice of the collection, and possibly not until demand by him.</p>

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

<p>1. Railroads: attractive dangers on right or way. It is negligence for a railway company to permit salt to remain exposed on its tracks, or on its right of way near them, so as to attract cattle, after it has become chargeable with notice that salt is thus exposed; and this, though it did not place the salt there, it being held guilty of negligence in such eases on the theory that its duty is to so police its right of way, as to prevent and remove all attractive dangers placed on its tracks or right of way by its servants or others.</p> <p>2. --: -. And, where salt has thus been left exposed under a warehouse on the right of way of a railway company and near its tracks, it was held, that the railway company could not avoid liability in consequence thereof by mere proof that the warehouse belonged to a third party.</p> <p>3'. :-: -: EFFECT OF KNOWLEDGE OF DANGER BY OWNER OF stock. An owner of stock may allow it to run at large notwithstanding that he knows that salt has been left thus exposed, and such knowledge will, therefore, not affect his right to recover for the loss of the stock in consequence of the negligence of the railway company.</p> <p>4. -: -: sufficiency of evidence of resulting damages. • To authorize a recovery for the loss of cattlS alleged to have resulted from such negligence, it is incumbent upon the plaintiff to show by substantial evidence that the negligence was the cause of the injury sued for, though such evidence may be circumstantial. And held, Bombauer, P. J., dissenting, that the evidence thereof in this cause was sufficient.</p> <p>5. -: killing of stock: damages. The damages of the owner of stock for the negligent killing thereof cannot be reduced by proof of the value of parts of the carcass, it not being the duty of the owner to make use of the carcass.</p> <p>6. Practice, Appellate: recital in transcript of official character of a justioe of the peace. The official character of a justice of the peace, before whom an action for the killing of stock has been instituted, is established prima facie by a recital thereof in the transcript on appeal.</p> <p>Per Momhauer, P. J., dissenting:—</p> <p>7. Railroads: attractive dangers on right of way. While a railway company is under an obligation to police its track, so as not to make it extra hazardous to cattle at large, it is not under a similar duty with respect to its right of way outside of its tracks.</p>

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

<p>1. Chattel Mortgage: replevin by holder of note for collection. After condition broken, the mortgagee may maintain an action of replevin for the property covered by a chattel mortgage, and this right passes to the indorsee of the note secured by the mortgage, though he holds it only for collection.</p> <p>2. Promissory Note: implied authority to indorse in name of payee. One who is authorized to collect a promissory note for the payee, but himself resides at a point far distant from the place of payment, has implied authority to indorse it in the name of the payee to a resident of the place of payment for collection.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The contract of sale' would not have bound the principal if the agents had authority to make it, because it fails to disclose the vendor. Schench v. Co., 47 N. J. Eq. 44: Clampet v. Bells, 39 Minn. 272; O’Sullivan v. Overton, 56 Conn. 102; Nichols v. Johnson, 10 Conn. 198; Ments v. Neivwitter, 122 N. Y. 491; Mayerv. Adrian, 77 N. C. 83; Boss v. Allen, 45 Kan. 231;. Bepettiv.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The court below erred in refusing appellant’s declarations of law and in overruling its motion for a new trial and in arrest, and in its rendition of judgment against this appellant. The admitted facts of the case do not constitute actionable negligence as against defendant Whitmore.

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

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The court erred in refusing to admit to the jury legal and competent evidence offered by defendant regarding the statements and acts of Daniel Prince, concerning the property described in the statement.

Louis City Circuit Cou/rt. — Hon Daniel D. Eishek, Judge. (1) Davis could be made a stockholder only by contract or estoppel. Burgess v. Seligman, 107 U. S. 20; also 92 Mo. 635. (2) He was not a stockholder by contract, never having subscribed for, agreed to pay for or owned any shares, except one which he purchased to qualify him as a director to protect his interest as a creditor. Burgess v. Seligman, supra.

— Hon. John W. Henby, Judge. • (1) The court should have held that it appeared from the face of the proceedings before Granzhorn that title to real property was in issue, and that it was, therefore, his duty to certify said cause to the circuit court. Revised Statutes, 1889, secs. 6124, 6219. (2) The plea of title filed in said cause was full and complete. It was correctly made and left no pretense of discretion or doubt as to the duty of Granzhorn in the premises.

— Hon. Cyrus A. Anthony, Judge. (1) Unless there is use of force or threats or intimidation, there is no forcible entry. 8 American & English Encyclopedia of Law, 106, and notes; Kail v. Trueles, 38 Ark. 257. (2) The plaintiff must have had actual possession at the time of the entry by defendant. Joint possession with others of several' hundred acres, of which the land in controversy is a part, is not sufficient. (3) Defendant’s second instruction should have been given.

Circuit Court. — Hon. Cyeus A. Anthony, Judge. (1) The court erred in refusing to give instruction number 4 to the effect that in the absence of other evidence the middle of the main channel would be presumed to be in the middle of the river bed, that is, half way between the Missouri and Nebraska shores, as they existed at time of cut-off. The center of the channel is the boundary.

— Hon. Andrew Ellison, Judge. - (1) No issue should be submitted to the jury about ■which there is no proof, and plaintiff’s first instruction peremptorily requires the jury to find the value of the corn to be forty-five cents per bushel, when there is not a word of testimony on which to base it. White v. Chaney, 20 Mo. App. 389; Baysdon v. Tnmbo, 52 Mo. 35; Budd v. FLoffheimer, 52 Mo. 297; Givens v. Vcm Studdiford, 4 Mo. App. 499.

— Hon. D. P. Stkatton, Judge. (1) The defense of lien must be specially pleaded. 7 Wait’s Actions & Defenses, sec. 5, p. 222. (2) A landlord has no lien on the crop grown on the demised premises unless it be shown that rent was reserved and payable, and was due within eight months preceding the attachment. Bevised Statutes, 1889, sec. 6376. (3) It was not shown by defendant when the farm was rented to Wisely, or when the rent, if any, became due, and that it was unpaid.

— Hon. D. P. Stratton, Judge. The following is the section of the statutes of 1865 concerning the powers of savings banks: Chapter 68, section 1. “Any five or more persons in any county in this state may organize themselves into a savings association, and shall be permitted to carry on the business of receiving money on deposit and to allow interest thereon, giving to the person depositing credit therefor, and of buying and selling exchange, gold, silver, coin bullion,…

— Hon. D. P. Stratton, Judge. (1) See Walsh v. Bossee, 16 Mo. App. 231, which, holds that “a judgment in scire facias to revive a judgment operates to avoid the statute of limitations, which then runs from its date, and not from that of the original judgment.” Poster on Scire Facias, p. 30; Farrenv. Beresford, 10 01. & Fin. 702. (2) A clear distinction is made in the books between an action and a .scire facias.

— Hon. James H. Lay, Judge. The act of the general assembly (Session Acts, 1885, page 28) enlarged the powers, duties and obligations of Thomas A. Cheaney as public administrator of Henry county; and said act being passed subsequent to the execution of the bond herein sued on these sureties become released. State ex rel. 'v. Roberts, 68 Mo. 234; McCwdy v. Broivn & Gibson, 8 Mo. 551; Blair v. Ins.

— Hon. James H, Lay, Judge.' This is an action for damages arising from alleged breaches of certain contracts for the sale and delivery of a lot of oats and corn, sold by defendant to plaintiffs in 1890.

— Hon. ¥m. Henky, Special Judge. (1) A change in an instrument, that does not vary its meaning or affect its operation, does not amount to an alteration nor make the instrument void. B. & L. Ass’n v. Fitzmaurice, 7 Mo. App. 283; 2 Parsons on Contracts [7 Ed.] 856, side p. 718; Daniel on Negotiable Instruments, sees. 1373, 1398. (2) Nothing less than a material alteration of an instrument will render it void in the hands of an innocent holder.

— Hon. John E. Wait, Special Judge. (1) If the object of the defendant in the attachment in making the sale to the vendee was to defeat the creditors in their efforts to collect their debts, three conditions must concur to protect the vendee’s title: First. He must buy without notice of the bad intent on the part of the vendor. Second. He must be a purchaser for a valuable consideration. Third. He must have paid the purchase money before he had notice of the fraud.

— Hon. E. J. Bboadus, Judge. (1) Where one purchases goods intending never to pay for them, the sale is voidable at the election of the seller, and, as between the parties, property in the goods does not pass. Where a third party, with notice of facts which would put an ordinarily prudent man on inquiry, purchases the goods from the fraudulent vendee, the original owner may recover them, or their value from such third parties. Thomas v. Freligh, 9Mo.

— Hon. W. I. Wallace, Judge. (1) There is no evidence, whatever, even tending to establish an assault with intent to rape, and it was clearly the duty of the court to so instruct the jury. To establish that offense, ‘ ‘there must be evidence of an intent to nse whatever amount of force is necessary to overcome resistance, and accomplish the purpose.” State v. Priestly, 74 Mo. 24; State v. Kendall, 73 Iowa, 255.

— Hon. W. I. Wallace, Judge. The wife cannot interplead for the husband’s property. Withers v. Shropshire, 15 Mo. 632; Abernathy v. Whitehead, 69 Mo. 28. A married woman, when she claims the property exempt as the husband’s, claims it as his vice, and she can no more interplead than could he. The property still remains that of the husband. Steele v. Leonori, 28 Mo. App. 675; State ex rel. v. Chaney, 36 Mo. App. 513; State ex rel. v. Laies, 46 Mo. 108.

— Hon. W. I. Wallace, Judge. (1) Plaintiff’s demurrer to tbe answer of the defendants, which merely attempted to avoid plaintiff’s cause of action, should have been sustained. The facts stated in said plea were wholly insufficient to constitute a defense. Young v. Kellar, 94 Mo. 597; Vaughan v. Allgaier, 27 Mo. App. 527; Vaughan v. Fisher, 32 Mo. App. 35; Butter v. Woods, 43 Mo. App. 494.

— Hon. Richard Eield, Judge. (1) Plaintiff could only recover on the right he had at the commencement of the action. In re Ass’n, 12 Mo. App. 40; Weinwick v. Bender, 33 Mo. 80; McDowell v. Morgan, 33 Mo. 555. A plaintiff to maintain replevin must have in himself the right of property, general or special, coupled with the right of immediate possession. Andrews v. Costigan, 30 Mo. App. 29; Updyke v. Wheeler, 37 Mo. App. 680; Gartside v. Nixon, 43 Mo. 138.

— Hon. Chas. W. Sloan, Judge. (1) That one surety is liable to his co-surety for contribution, where payment is made under any sort of legal compulsion, is fundamental. Skrainka v. Bohan, 18 Mo. App. 343. (2) The consideration in the deed was the $5 mentioned, and the face of the two judgments mentioned and costs amounting to $2,005. Fitzgerald v. Baker, 13 Mo. App. 192; Heim v. Vogel, 69 Mo. 529; Klein v. Isaacs, 8 Mo. App. 568.

— Hon. M. GL McG-eegob, Judge. (1) Mandamus is not the proper remedy. State ex rel. v. Trustees,115 Ind. 480; s. c., 16 N. E. Rep. 811.

— Hon. M. Gr. McGI-reg-or, Judge. (1) The holder of the note, under the terms of the contract, alone had the right to appoint a successor to the original trustee, and plaintiff by signing said contract estopped himself from denying that right. Filis v. Bailroad, 107 Mass. 12; Trust Co. v. Fisher, 106 111. 189; Loan é Trust Co. v. Hughes, 11 Hun (N. Y.); 1 Devlin on Deeds, sec. 387; Lewin on Trusts [5 Ed.] 459.

— Hon. James M. Sandusky, Judge. This is an action commenced in the circuit court of Ray county, Missouri, on the fourth day of December, 1890, by Sallie C. Keyes and Thomas H. Keyes, her husband, against the Bank of Hardin, a corporation, to recover damages caused by the carelessness and negligence of defendant in delivering a certain promissory note to one James King, which plaintiffs had left with the bank, as plaintiffs allege, for collection ; but, as defendant…

<p>Practice, Appellate: costs for printing abstracts. Appellant filed in the appellate court a complete transcript of the record and also filed an abstract of such record. His appeal being sustained he filed a motion to tax costs of printing his abstract against the respondent. Held, respondent is not liable for such costs as he is taxable with the costs of the transcript.</p>

— Hon. M. G. McGbegob, Judge. The petition alleges a delivery of the horse to E. Bennett & Son, and alleges a refusal by E. Bennett & Son to exchange for another horse of the same price and breed, pursuant to the contract. This was the issue joined.

— Hon. M. G. McGregor, Judge. In Allen v. Davis, 11 Mo. 479, it is held that, where a note is made payable so soon as the amount can be made on a suit in which B is plaintiff, and the heirs and legal representatives of C are defendants, the note will not be held due until the money is made. In Chandler v. Carey, 8 Am.

— Hon. E. J. Bboadus, Judge. (1) The action of a trial court in sustaining a motion for new trial is no longer merely a matter of judicial discretion. Such action is now Subject to review by the appellate courts, and new trials can only be granted for substantial legal reasons. When such reasons do not appear it is now the right of the appellate court to reverse-the order for a new trial, and render judgment for the party who was successful in the trial court.

— Hon. Chas. ~W. Sloan, Judge. (1) The first instruction given on behalf of the -defendant is erroneous. The law in this state is, that in order to release the surety the extension must not only have been for a valuable consideration, but must-also have been for a definite period of time. West v. Brison, 99 Mo. 684, 693.

<p>1. Contracts: conflict of laws: validity. The validity of a contract, — whether as to the form or manner of its execution, or as to the capacity of parties, — should he determined hy the law of the state where the same is entered into, and, if valid there, it is valid everywhere; and this rule alike governs the disabilities of coverture, infancy, etc.</p> <p>2. -: -: WHERE MADE: DELIVERY: MARRIED WOMAN. A noto made by a married woman dated in Kansas, executed in Missouri, was sent to and delivered in Kansas. Held, a Kansas contract, as it was tho delivery that completed the contract and gave it life; and it, therefore, bound the maker according to the laws of Kansas, which would be enforced in the Missouri courts.</p>

— Hon. D. P. Stratton, Judge. (1) If there is any evidence tending to prove the cause of action, a peremptory instruction is erroneous. (2) Possession is some evidence of title. (3) The recital in plaintiff’s chattel mortgage “now in my possession,” being descriptive of the animal mortgaged, is evidence even against a third party that the mare was in the possession of the mortgagor if it be conceded that E. J. Beougher mortgaged the mare in controversy.

— Hon. Andrew Ellison, Judge. ’ (1) The demurrers to the evidence should have been sustained. If the servant has the same knowledge of the risk that an inspection would reveal to the master’s inquiry, and continues at his work without complaint, he cannot recover if hurt. Hayden v. Mfg. Co., 29 Conn. 548; Ballon v. Railroad, 54 Wis. 259; Porter v. Railroad, 71 Mo.; Anderson v. Ciarle, 29 N. E. Rep. 589; Heath v. Coal Co., 65 Iowa, 737, and authorities supra.

<p>1. Indictment: rule: statutory offense. An exception contained in the section of the statute defining an offense and constituting part of its description must be negatived in the indictment.</p> <p>2. Criminal Law: indictment: hunting: exception. An indictment under section 3900, Revised Statutes, 1889, for unlawful hunting within the inelosure of John Quinn without the consent of John Quinn, the owner, is bad, as it does not charge that it was also without the consent of the person in charge.</p> <p>3. -: illegal hunting: fence. An inelosure is sufficient for the purpose and objects of section 3900, supra, if the fields of several are under a common inelosure, without a partition fence of any kind, lawful or unlawful.</p> <p>4. -: -: -. An inelosure is sufficient under said section if it makes it apparent that the owner is holding the land to the exclusion of the publie and for his own exclusive use, though the fence have a gap down near the public road.</p> <p>5. -: -: MISDEMEANOR: INDICTMENT. Hunting within the . inelosure of another without lawful consent is a misdemeanor and may be prosecuted by indictment or information.</p>

— Hon. Andrew Ellison, Judge. The evidence introduced by plaintiff was amply sufficient to have authorized the submission of the case to the jury for their determination, and, therefore, the court erred in sustaining defendant’s demurrer to the evidence.

— Hon. Andeew Ellison, Judge. (1) There was no evidence introduced tending to prove the averments of this petition that “Union township, in which the suit is brought adjoins Lincoln township in which said mare was killed.” Hence the justice is not shown to have had jurisdiction, and the circuit court acquired none. Bevised Statutes, 1889, sec. 6126; Wright v. Railroad, 25 Mo. App. 230; Kinion v. Railroad, 30 Mo.

— Hon. Andrew Ellison, Judge. (1) The court erred in refusing to sustain defendants’ objection to the introduction of testimony on plaintiff’s petition. Bank v. Shine, 48 Mo. 456, and cases cited; Childs v. Bankin, 9 Mo. 673. It is not-sufficient to make a case to show that there was at the time the guaranty was signed a contract between the-plaintiff and Slade; but it must be shown that the said contract was before the guarantors. Childs v. Bankin, supra.

— Hon. Andrew Ellison, Judge. (1) The information is sufficient. It states an offense under the druggist law. 1 Revised Statutes, 1889, ch. 58, p. 1054; 1 Revised Statutes, 1889, sec. 4621, p. 1056; Kelley’s Criminal Law & Practice [2 Ed.] p. 743.

— Hon. C. A.. Anthony, Judge. (1) The court erred in allowing defendant, after introducing the written contract of February 21, 1889, to offer to prove a different contract, as to the $454 paid by Deuser upon the Farmers’ Bank judgment, there is no charge that these items were so applied through any oversight, error or mistake, but the attempt is to set up and prove a different contract from that stated in the writing. 1 Greenleaf on Evidence [Redfield’s Ed.] sec. 275; Torn-…

.Appeal from the Jackson Criminal Court. — Hon. Henry P. White, Judge. Said ordinance is void. (1) Because it is class legislation. It singles out contractors and corporations who employ any teamster using two-horse wagons, hauling certain material, either by the load or by the day. This renders it void. Dillon on Municipal Corporations, sec. 322; Chicago v. Rumpff, 45 111. 90. (2) Said ordinance is unreasonable.

— Hon. John W. Henry, Judge. (1) The buyer, having broken the contract by failing to pay as agreed, has no legal standing in a suit against the seller, because he was himself first in the wrong. Bishop on Contracts, sec. 835; Parsons on Contracts, 812, 813; Bishop on Contracts [Enlarged Ed.] secs. 489, 834, 1349, 1418, 1434, 1440; DoUinsv. Edmonds, 18 Mo. App. 316.

— Hon. John W. Henry, Judge. This is an action of replevin for three carloads of wheat. The Missouri Pacific Railroad Company is only a nominal party, the interested defendant being Albers & Co., of St.- Louis.

— Hon. Mathew A. Fyke, Special Judge. ' (1) The defendant went to the plaintiff’s place of business for the purpose of ascertaining whether the lumber furnished for his house was being paid for. He went to the proper agent of the company to ascertain this fact, the agent in charge of the books of accounts. That agent gave him false information concerning the books, and thus led him to believe that the lumber was being paid for.

— Hon. James Gibson, Judge. The court erred in peremptorily instructing the jury to find for defendant. Sections 5080 and 5081, Revised Statutes of 1889, do not apply to sales upon the installment plan where a chattel mortgage or deed of trust is given by the purchaser to secure the unpaid purchase price. Daily v. JMfg. Co., 88 Mo. 301, 305; s. c., 14 Mo. App. 597. In both courts this precise question was directly decided in accordance with what we contend is the law.

— Hon. Riohard Field, Judge. (1) The so-called contract between tbe holders of •eighty shares of stock to keep the same scattered and control the policy of the bank to that end was not an illegal or unfair confederating, nor was it against public policy. The majority of the stockholders have the clear right to unite on the policy to be pursued by them. Faulds v. Tates, 57 111. 416; 11 Am.

— Hon. R. H. Field, Judge. (1) A court of equity has no jurisdiction, in the absence of a statute expressly conferring such jurisdiction, to appoint a receiver for a corporation and to wind up its affairs. High on Receivers [2 Ed.] secs. 287, 288, 298, 299, 313, 343, 365, note 1; Beach on Receivers, secs. 403, 409, 415; Pond v. Railroad, 130 Mass. 194; Trust Co. v. Railroad, 101 N. Y. 478; Baker v. Railroad, 34 La. Ann. 754; s. c., 9 Am.

John W. Henry, Judge. (1) Whenever the defendant has received money from another to be applied to a specific purpose, for example, as part payment on the purchase price of real estate for the sale of which he assumes to be agent, but to which purpose he does not apply it, because the supposed vendor repudiates the transaction and refuses to make conveyance, and the defendant keeps the money, he is liable to the party from whom he received it, in an action for money had and…

— Hon. James H. Lay, Judge. (1) Upon the amendment of the petition in this cause, a continuance should have been granted the defendants. Petition in abstract of record, pp. 2, 3; affidavit in abstract of record, pp. 5, 6; Lumkinv. Collier, 69 Mo. 170; Parker v. Bliodes, 79 Mo. 88; Scovill v. Glasner, 79 Mo. 449. (2) The verdict in this case is not the verdict actually agreed upon by the jury as is shown by their affidavit in support of the motion for new trial.

— Hon. W. I. Wallace, Judge. (1) If the plaintiff’s contention is correct then she has an adequate remedy of law and cannot maintain this hill. The point that the petition does not state facts sufficient to constitute a cause of action can be raised for the first time in this court. Bateson v. Clark, 37 Mo. 31; State ex rel. v. Matson, 38 Mo. 489; Weil v. Greene Co., 69 Mo. 281; Farley v. Railroad, 72 Mo. 341; Henry v. Bell, 75 Mo. 194.

— Hon. Jambs Gibson, Judge. This action is for damages for defendant’s alleged breach of contract, and is founded on the following written agreement for the sale of lands and a subsequent verbal… Held: 58 Mo. 213. (1) Waiver by the defendant of a condition of the contract in his favor is not a modification, but a performance of the contract on the part of plaintiff. Ins. Co. v. Kyle, 11 Mo. 278; Bussell v. Ins. Co., 55 Mo. 585; Smith v. Haley, 41 Mo.

— Hon. D. P. Stratton, Judge. ' (1) If the conductor could have told from the ticket presented to Mm, in connection with all the facts at that time within his personal knowledge, that it had not been used from Low Wassie to G-randin, then his ■ejection of the passenger was wrongful. And it was for the jury to say whether the conductor could so have told or not. Kellett v. Railroad, 22 Mo. App. 356.

<p>1. Criminal Law: issue of prescription for intoxicating liquors. To justify the conviction of a physician under section 4624 of theBevised Statutes for the issuance of a prescription for intoxicating liquors, to he used otherwise than for medicinal purposes,it is not requisite that the physician should have been a registered physician, nor that he should have been engaged in the practice of medicine in the-county.</p> <p>2. -: -: indictment. An indictment under that section need not set forth the prescription in Ucee verla; nor need it state the kind or quantity of the liquor for which the prescription was issued.</p>

<p>Municipal Corporations: offense against ordinances of a tillage: complaint. An arrest for an offense against the ordinances of a village may he made hy the marshal of the village without a warrant, when the offense is committed in his presence; and in such ease the offender may he prosecuted under a charge preferred orally hy the marshal.</p>

<p>1. Practice, Trial: leading questions to witnesses. It is within the discretion of the trial court to permit, or refuse to permit leading questions to he propounded to a witness hy the party producing him.</p> <p>.2. Practice, Appellate :non-pre judicial error. A judgment will not he reversed for non-prejudicial error; accordingly, error in refusing to permit a witness to testify whether a designated person had procured a judgment against him is not ground for reversal, since record proof of the judgment, if there was one, might have heen produced.</p>

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

— Hon. Thomas H. Bacon, Judge. The motion should not have been sustained because the information charges the offense in the language of the statute. Revised Statutes, 1889, sec. • 3896; State v. Bum,, 81 Mo. 108. The law does not require an information to be verified as has been settled since this ■cause was passed upon. State v. Bamberger, 106 Mo. 135.

— Hon. H. C. O’Bryan, Judge. (1) Defendant’s exemption rights could not be tried and determined by a motion to quash the levy of an execution. State ex rel. v. Bierwirth, 47 Mo. App. 551; State ex rel. v. Barada, 57 Mo. 562; State v. Barnett, 96 Mo. 133; Freeman on Executions, sec. 271.

<p>Practice, Trial: vacation or judgment: laches or attorneys. The attorneys for the defendant in this cause filed an insufficient application for a change of vonue, and then left the court. This application was overruled and the cause was tried in their absence. Reid that they were guilty of laches, and that the refusal of the trial court to vacate the judgment upon motion of the defendant was, therefore, not erroneous.</p>

<p>1. Practice, Trial: objections to evidence. An objection to the competency of evidence as to value is not specific enough to raise the question, whether the witness is qualified to testify as an expert upon the subject.</p> <p>2. Railroads: damages. In an action against a railway company for double damages for the killing of a bull, which was more valuable for breeding purposes than for meat, such greater value should be taken into consideration in the assessment of the damages.</p>

<p>1. Practice, Appellate: review op findings op pact in proceedings in equity. When the evidence in an action in equity is conflicting, the appellate court will defer somewhat to the finding of the trial court, since the latter court had the witnesses before it, and was, therefore, in the better position to judge of their credibility.</p> <p>2. -: -: reproduction op the EVIDENCE. If the appellant in an action in equity desires to obtain a review by the appellate court of the finding of the trial court, he must as far as practicable reproduce in his transcript the same evidence which was before the trial court; and, in such case, where the witnesses testify as to the location of points or objects on a plat, and the location thereof is material, the points indicated by them should appear in some appropriate manner.</p>

— Hon. James H. Lay, Judge. ' (1) When the liability of sureties is involved, courts will not extend the construction of an instrument beyond its plain and obvious meaning. Cochrane v. Stewart, 63 Mo. 424; Hof singer v. Hartnett, 84 Mo. 549; Bauer, Ex’r, v. Cabanne, 105 Mo. 110; Mfg. Co. v. Hibbs, 21 Mo. App. 574. (2) The surety’s obligation cannot be extended to other subjects, persons or periods of time than those expressly included in his contract.

— Hon. J. H. Slover, Judge. (1) As a matter of law the eleventh, twelfth, thirteenth and fourteenth wards were never in the city, and they could not, therefore have members in the lower house. City of Westport v. Kansas City, 103 Mo. 141; Charter of Kansas City, 1889, art. 2, sec. 1, p. 9. (2) Where there could not be a member de jure, there could not be a member de facto. Fx parte Snyder, 64 Mo. 58; Jester v. Spurgeon, 27 Mo. App. 477; Norton v. Shelby Co., 118 TJ.

— Hon. J. H. Sroyer, Judge. (1) Appellants have followed the proper practice to have the action of the circuit court reviewed. Bank v. Armstrong, 92 Mo. 265; Wolff v. Coffin, 46 Mo. App. 190. The case was triable at the October term, 1891, of the circuit court, the appeal having been taken upon the day when the justice’s judgment was rendered, and more than ten days before the said term began. Revised Statutes, 1889, sec. 6341.

— Hon. C. O.. Tiohenor, Special Judge. - The court erred: (1) In overruling defendant’s demurrer to evidence of plaintiff, which affirmatively proved that W. E. Clausen was not employed or controlled by defendant. Shearman & Redfield on Negligence, sec. 73; Cooley on Torts, 532; Bishop on Non-Contract Law, sec. 599; 1 Parsons on Contracts [3 Ed.] pp. 87, 88; The Law of Negligence (Deering), sec. 218; Wood on Master & Servant, sec. 281.

— Hon. Jambs Gtbson, Judge. (1) Storz being a non-resident of Henry county, tbe court had no jurisdiction to render judgment against him until it found a verdict or rendered judgment against bis codefendant, tbe Henry County Coal Company, it being tbe local resident defendant through which tbe court was to obtain jurisdiction of Storz, who resided in Rock Island county. Revised Statutes, Illinois, cb. 110, sec. 2, p. 734.

— Hon. R. H. Field, Judge. (1) The court erred in permitting question to the witness, Dr. Hersh, and the answer of witness thereto, to go to the jury, because the question does not call for the opinion of the witness as an expert, but calls for his conclusion on the disputed facts in evidence, is not an expert question, and the answer in response to said question is a statement of a fact and not of opinion, and is incompetent, illegal and irrelevant.

— Hon. John W. Henry, Judge. The statement of account filed with the lien was a just and true account of the demand due. It should or might have been for more and have been a just and true account of the demand due, but every item in the statement of account filed with and as a part of the lien was furnished and delivered and went into the houses.. It was a part of the whole bill and the amount of price set out in it was a part of the price agreed on.

— Hon. Chas. H. S. Goodman, Judge. (1) The demurrer offered at the conclusion of plaintiff’s evidence should have been sustained on the ground of contributory negligence. Martin v. Bishop, 18 N. W. Rep. 337; Noland v. Shichle, 69 Mo. 336; Hogan v. Bailroad, 17 N. W. Rep. 632; Powell v. Bailroad, IQ Mo. 80.

— Hon. Andrew Ellison, Judge. • (1) The court erred in refusing instructions 3 and 4 prayed by plaintiff. The land was in a distant state; the representations were for that reason warranties. Shinnalcvrger v. Shelton, 41 Mo. App. 157; Cooley on Torts, 487, 488; McBeth v. Craddock, 28 Mo. App. 380, 397.

— Hon. Andeew Ellison, Judge. The court erred when it told the jury that “it is admitted the animal got on the road where the railroad had no fence.” Nor is there any admission that the colt was struck and killed by defendant not within switch limits, nor in any town or village. The record is barren of any such admissions, and it was error for the court to so instruct the jury.

— Hon. D. P. Stratton, Judge. (1) The notes being unconditional promises to pay certain sums of money, it was incompetent for the defendant to show a prior or contemporary agreement, not reduced to writing, “that, if the wind mill did not work and give satisfaction, etc., the notes were to be null and void.” Ewing v. Ciar7c, 8 Mo. App. 570; 76 Mo. 545; Frissell v. Mayer, 13 Mo. App. 331; Henshaw v. Dutton, 59 Mo. 139; 67 Mo. 666.

Glair Circuit Court. — Hon. D. P. Stbatton, Judge. (1) It was error in the trial court to refuse defendant questions of the witness Harrison tending to establish the fact, that he, Harrison,- was the owner of the ties and not the plaintiff. Webster v. Heylman, 11 Mo. 428. There was an entire failure of the evidence to show any liability of defendant in this action.

<p>Appeal from the Henry Circuit Court. — Hon. James H. Lay, Judge.-</p>

— Hon. B. B. Grill, Special Judge. (1) The petition does not state a cause of action. It does not set forth the items of the account, nor is a copy thereof attached to the petition or filed therewith. Revised .Statutes, sec. 2075; Graves v. Pierce, 53 Mo. 423,430; Kassettv. Bust, 64 Mo. 325, 329; McWilliams v. Allen, 45 Mo. 573; Connor v. Kerman, 44 Mo. App. 346; Meyer v. McCabe, 73 Mo. 236, 242; Meyer v. Chambers, 68 Mo. 626; Baker v. Baley, 18 Mo. App. 562, 567.

— Hon, M. Gr. McGeegob, Judge. (1) While it provided that Helm should continue in possession of the mortgaged property until default and continue to sell in usual course of business, yet it required him to deposit the net proceeds of all property sold in First National Bank of Joplin, to the credit of the mortgagees to be paid over to them in satisfaction of the indebtedness thereby secured, and the verbal agreement between Helm and the agent of the mortgagees made on the…

— Hon. James M. Sandusky, Judge. The judgment was a general judgment, and not a special judgment, making the debt a charge on the land. Eaucett’s petition showed her coverture. If the judgment was wrong, there was only a writ of error required. Having an adequate remedy by writ of error at law, he could not resort to a court of equity.

— Hon. J. H. Slover, Judge. (1) The pleadings and lien papers describe the land as definitely as the statute requires, or so near as to identify the same, and the declaration of the court to the contrary was erroneous and in conflict with the statute itself, as well as the adjudications under it. Revised Statutes, 1889, sec. 6709; Dentv. Smith, 63 Mo. 263; Bradishv. James, 83 Mo. 313; Brownv. Wright, 25 Mo. App. 54, and cases cited; Ball Bros. v. McCrary, 45 Mo. App. 365.

<p>1. Principal and Surety: surety's liability. The court approves the following findings of law in the referee’s report in this ease:</p> <p>(1) The sureties on the bond of a "contractor for his faithful performance of a building contract are liable for his failure to comply with his contract in his leaving unpaid material bills, and for the cost of finishing the work left incomplete, and for the liquidated damages for overtime required to complete the building.</p> <p>(2) Any change in the contract without • the surety's consent releases him, and his liability cannot be extended by implication or liberal intendment.</p> <p>(3) Surety cannot take advantage of his principal’s wrong and make that an excuse for his release, which the bond says shall be the reason of his liability.</p> <p>(4) The contract called for the construction of a two-story and attic frame dwelling with cistern, etc., and made the specifications, etc., part of the contract; the bond for the faithful performance of the contract required the construction and completion of a two-story and attic building as provided for in the contract; the sureties are bound by everything contained in the specifications, etc., including cistern, etc.</p> <p>(5) A building contract provided that seventy-five per cent, of the contract price should be paid on weekly estimates of the architect, and the remainder was retained until the building was completed and accepted, and satisfactory evidence was furnished that no claims existed against the building. Meld, such evidence was not required on the weekly payments, and only on the final.</p> <p>2. Referee’s Report: finding of facts. The finding of a referee on the issues of fact is regarded in the same light as a special verdict of a jury, and is not disturbed where there is substantial evidence to support it.</p> <p>3. Practice, Trial: befeeence. The trial court was authorized by statute to refer this ease.</p> <p>4. Judgment: on bond: harmless error. While a judgment on a bond in form should be for the full penalty, with execution for the damages, yet this error does no harm and is not reversible.</p>

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

— Hon. John W. Henry, Judge. The plaintiff was guilty of contributory negligence in going between cars while they were in motion. Williams v. Railroad, 43 Iowa, 396; Marsh v. Railroad, 56 Gra. 274. Instructions 1, 2 and 4 declared the law in the ■exact language of the supreme court in the leading “guardrail case” of this state, instructions 1 and 2 being copied from that case. Huhn v. Railroad, 92 Mo. 440; Boeder v. Railroad, 100 Mo. 673-682. •

— Hon. R. H. Field, Judge. (1) So far as the second count is concerned, the trial having been by the court, a jury being waived, and no instructions asked on behalf of the plaintiff, there are no errors of law for this court to review; and the verdict must stand if there was any evidence to support it. Schultm v. Hickman, 27 Mo. App. 25; Garrison v. Lyle, 38 Mo. App. 566; Invin v. Wood-mans ee, 104 Mo. 403.

— Hon. W. N. Evans, Judge. (1) The amended petition is fatally defective and does not state facts sufficient to constitute a cause of action. It omits to state that the property in controversy was wrongfully detained by the defendant at the time the suit was instituted, or that defendant was in possession at all. The only allegation as to possession is that he levied upon and seized an undivided one-half interest of, in and to said mill. Furnishing Co. v. Wallace, 21 Mo.

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

<p>Error to the Phelps Circuit Court. — Hon. C. C. Bland, Judge.</p>