Volume 55 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) Section 92, of the Revised Statutes of 1889, provides that the administrator shall “ defend all suits Brought against him 5 ’ ’ and section 222 provides that “the court shall allow all reasonable charges for legal advice and services.” Had the administrator paid this expense of administration, it would have been allowed him as “costs.” 2 Woerner on Administration, sections 514 and 515; Gamble v. Gibson, 59 Mo. 585.

Louis City Circuit. — Hon. Jacob Klein, Judge. (1) The question of contributory negligence was submitted to the jury, and a finding had for plaintiff. (2) On the question of the verbal instruction of the court to the jury, there was nothing improper said, or that in any way injuriously affected defendants. Fair-grieve v. Moberly, 29 Mo. App. 141; McPherson v. Bailroad, 97 Mo. 254; Allen v. Woodson, 50 Gra. 53; Pierce v. Behfuss, 53 Mich. 66.

Louis City Circuit Court, Hon. Daniel D. Eisher, Judge. (1) The fact that respondent, having discovered the tallow was not np to sample on November 17,1889, continued for two months, without rescinding the contract, to negotiate for the tallow, under the contract, but at a rate below the contract price, is, together with a delay in .rescinding the contract for a period of two months, such an exercise of dominion over the tallow as would amount to an acceptance and a waiver…

<p>Appeal from the St. Lonis City Circuit Court. — Hon. Daniel Dillon, Judge.</p> <p>(1) The practical interpretation of an ambiguous written contract may be shown by parol evidence of the acts of the parties, and should control. St. Louis Gaslight Co. v. City of St. Louis, 46 Mo., 121, 128; Matthews v. Banahy, 26 Mo. App.', 660•, Beutmannv. Kilpatrick, 46 Mo. 624; Sedalia Brewing Co. v. Sedalia Waterworks, 34 Mo. App. 49; Jones on Construction of Contracts, see. 95, and cases cited. Parol evidence is admissible-of the circumstances-surrounding the execution of an ambiguous-written contract and its subject-matter; the relation of the parties and their conversations in reference thereto before, at and about the time of its execution. Black Biver Lumber Co. v. Warner, 93 Mo. 374: Beisenleiter v. Lutherische Kirche, 29 Mo. App. 291; Thorington v. Smith, 8 Wall. 1; Quarry Co. v. Clements, 38 Ohio St. 587; Galen v. Brown, 22 N. Y. 37; Birch v. Bépeyster, 1 Stark, 210; 4 Camp. 385; Sweet v. Shumway, 102 Mass. 365; Browne on Parol Evidence, sec. 54, pp. 190, 191; Haddock v. Woods, 48 Iowa, 433; Quigley v. De Haas, 98 Pa. St. 292. (2) The compromise of a disputed claim for unliquidated damages and a threatened lawsuit is a complete bar to an action on the original claim, so long as the defendant is in good faith performing the compromise, and is ready and willing to perform the same according to its terms. Hunt v. Hvnter, 52 Mo. App. 263; Maack v. Schneider, 51 Mo. App. 92, 102; Perkins v. Headley, 49 Mo. App. 556; Fuller v. Kemp, 33 N. E. Bep. 1034; Deutmannv. Kilpatrick, 46 Mo. App. 624: Adams v. Helm, 55 Mo. 468; Dunham v. Griswold, 100 N. Y. 224; Mitchell v. Henley, 110 Mo. 598; Green v. Railroad, 82 Mo. 653; Black River Lumber Go. v. Warner, 93 Mo. 374; Smith v. Coal Go., 36 Mo. App. 567; Turemanv. Stephens, 83 Mo. 218; Imboden v. Ins. Go., 31 Mo. App. 321. (3) Defendant’s demurrer to the evidence should have been sustained. Whitascheck v. Glass, 46 Mo. App. 209; Kingsland, etc., Co. v. Iron Co., 29 Mo. App. 526; Martinowsky v. City of Hannibal, 35 Mo. App. 70.</p> <p>(1) There is no ambiguity, either patent or latent, in the written contract, and parol evidence to vary or contradict the same is inadmissible. (2) Neither the promise to do a thing nor the actual doing of it will be a good consideration, if it is a thing which the party is already bound to do, either by the general law or by a subsisting contract. Lingenfelder v.Wainright, etc., Go., 103 Mo. 578, and authorities there cited in brief on page 587 and by the court on page 593. (3) The contract and its breach being shown, plaintiff was entitled to recover and defendant’s instruction was properly, refused. (4) In civil cases the court is not required to give instructions, where none are asked. Dempsey v. Reins elder, 22 Mo. App. 43-45; Teiherow v. Railroad, 98 Mo. 74-86; Drury v. White, 10 Mo. 354; Simoiids v. Oliver, 23 Mo. 32; Harrington v. Minor, 80 Mo. 270.</p>

Louis City Circuit Court. — Hon. Daniel D.-Fisher, Judge. (1) No person will be allowéd to adopt that part of a transaction which is favorable to him, and reject the rest to the injury of the one from -yhom he derived the benefit. Austin v. Loring, 63 Mo. 19. (2) When one of two innocent parties must suffer by a third, the one who has enabled such third party to occasion the loss ought to sustain it. Rice v. Qroffman, 56 Mo. 434.

Louis City Circuit Court, — Hon. John A. Harrison, Special. Judge. (1) -The act of 1891 is not applicable to the city of St. Louis. Constitution, art. 6, sec. 27, Revised Statutes, 1889, secs. 14, 15 and 16. State ex rel. v. Smith, 44 Mo. 112. If one of the judges of the circuit court of that city is incapacitated from acting, one of the other judges of that court can sit in his place.

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

Louis City Circuit Cowrt. — Hon. John A. Harrison,. Special Judge. (1) The court erred in taking the case away from the jury. Where a prima facie case or defense has been made, the same must be submitted to the jury, and a peremptory instruction is error. Kenney v. Railroad, 80 Mo. 573-578; Carson v. Porter, 22 Mo. App. 179-184; Cannon v. Moore, 17 Mo. App. 102; Berne v. Railroad, 20 Mo. App. 232.

<p>Appeal from the St. Louis City Circuit Cowrt. — Hon. Daniel D. Eisher, Judge.</p> <p>A judgment by default rendered by a justice of the peace may be set.aside by. him, provided-application therefor be made within ten days after the rendition of the judgment. Revised Statutes, 1889, sec. 6237. In the computation of the time during which an act may be done, the first day is excluded and the last day included. If the last day be Sunday, it is also excluded or omitted in the computation. The tenth day for doing an act after a given Thursday is the second Monday thereafter. Gribbon v. Freel, 93 N. Y. 93; Revised Statutes 1889, sec. 6570 (vol. 11, p. 1541); Dorsey v. Dike, 46 Hun, 112; Porter v. Pierce, 43 Hun, 11; Gagev. Davis, 129 111. 236; Muir v. Galloway, 61 Cal. 498; Carothers v. Wheeler, 1 Ore. 194; Spencer v. Hang, 45 Minn. 231; Johnson V. Merritt, 52 N. W. Rep. 863.</p> <p>In computation the first day is to be excluded and the last day included; but, if the last day fall on Sunday, it, too, shall be excluded, showing that the act then must be performed on the previous Saturday. Patrick v. Faulke, 65 Mo. 312-314, and cases there cited.</p>

— Hon. Henry M. Ramey, Judge. The court erred in giving plaintiff’s, first, instructions as to credibility of witnesses. This class of instructions is never proper in such cases as the one at bar. The inost that could be said in reference to the testimony of defendant Lowenberg, against whom the forcé of said instruction was directed, was that it was in contradiction to that of another witness, who was an attorney for plaintiff.

— Hon. Gr. D. Burgess, Judge. (1) There was no finding to support the judgment of the court. While the trial court was not bound to state separately its findings of the facts, it was required to state its findings generally, and having failed so to do the judgment is erroneous. Revised Statutes, 1889, sec. 2135; Jordan v. Buschmeyer, 97 Mo. 94. (2) The instrument read in evidence purporting to be the •deposition of Fred. G-.

— Hon. Cyrus A. Anthony, Judge. (1) All of the statements of the assistant cashier were verbal, and, therefore, created nó binding obligation on the bank to pay the check. A promise to accept or pay a check, as in the case of bills of exchange, must be in writing. Bank v. Bank, 30 Mo.

<p>Appeal from the Gentry Circuit Court. — Hon. A. At. Woodson, Judge,</p> <p>(1) “The mere failure of a party to a contract, who labors under no disability or infirmity, through his own fault and neglect, to read it or inform himself as to its contents, is not sufficient to annul or overcome its legal effect as to him.” Gwin v. Waggoner, 98 Mo. 315; Black River Lumber Co. v. Warner, 93 Mo. 374; LLuse v. McQuade, 52 Mo. 388; Johnson Cou/nty v. Wood, 84 Mo. 489; Clark v. Diffenderfer, 31 Mo. App. 232; John T. Hair S Co. v. Walmsley, 32 Mo. App. 115; Reed v. Nicholson, 37 Mo. App. 646. (2) Plaintiff’s instruction number 4, found at bottom of page 19, should have been given. If it was not error to refuse this instruction,, then it was error to admit the report in evidence. It was the duty of the court in some manner to instruct the jury what weight should be given to the report. I contend that this report, made by an intelligent man who could read and write, was sufficient to estop the defendants from claiming a breach of the warranty. It embraces all of the evidence of estoppel, in this: First. It was an admission inconsistent with -the evidence of Watkins that the machine did not do good work. Second. It prevented McManus from reclaiming back from the Whitely Machine Company because his customer had accepted the machine. Third. It was an injury to plaintiff to have the admission in the report disproved, and resulted in a judgment against him. Taylor é Mason v. John and Jacob Zepp, 14 Mo. 482; Netvman v. Hook, 37 Mo. 207; Hundley v. Filbert, 73,Mo. 34-, Mateer v. Railroad, 105 Mo. 320.</p> <p>Upon the merits of the case there is no merit in this appeal. The evidence was ample to support the verdict. The issues were fairly presented by the instructions. The only question that could arise is upon the paper or report offered by plaintiff and claimed to constitute an estoppel on the part of the defendant. As to this point appellant is concluded by a decision of this court in a case in all respects like this one. It would, in fact, be difficult to find two cases more nearly alike. Fairbanks v: DeLissa, 36 Mo. App. 711. That case also disposes of any question arising on the evidence in the case at bar. And we submit this case so far as the merits are concerned, by simply calling attention to the former opinion.</p>

— Hon. Ohas. H. S. Goodman, Judge. (1) The court erred in refusing the fourth instruction prayed for by the defendant, Glazier. Revised Statutes, sec. 572, p. 229. There are no statutes for the filing of interpleas in attachment cases before justices, other than section 604, page 234. Spooner v. Boss, 24 Mo. App. 603; Bergart v. Bor chert, 59 Mo. 85; Scott v. Bussell, 39 Mo. 410.

— Hon. E.' J. Beoadus, Judge. ■ . (1) While the later decisions of the courts of our state declare that the law in relation to mechanics’ liens ought to be liberally construed, yet it shall be remembered that a mechanics’ lien is purely of statutory creation, and that it can only be maintained by a substantial observance of, and compliance with, the provisions of the statute. Malther v. Falcon Mining Go., 2 Pac. Rep. 50; Phillips on Mechanics’ Liens, sec. 89.

— Hon. Heney M. Ramey, Judge. (1) Sureties are the favorites of the law. Their obligations are to be strictly construed, and their liabilities are not to be extended by implication. The City of Ilarrisonville v. Porter, 76 Mo. 358; Blair v. Ins. Co. 10 Mo. 566. (2) Only laborers and mechanics were protected by the bond in evidence. Plaintiffs were' subcontractors, and not laborers or mechanics. The provisions of the bond do not extend to them.

— Hon. Henry M. Ramey, Judge. (1) The certified tax bill in any action thereon shall be prima facie evidence of the validity of the bill, of the doing of the work, and of the furnishing of the materials charged for, and of the liability of the property to be charged, stated in the bill. 1 Revised Statutes, 1889, sec. 1407; Keith v. Bingham, 100 Mo. 300; Reman v. Payne, 27 Mo. App. 481; AdJcins v. Railroad Co., 36 Mo.

— Hon. Chas. H. S. Goodman, Judge. (1) The court erred in refusing to give defendant’s instruction number' 6, at the close of the evidence. Under the law and the evidence, plaintiff was not entitled to judgment. As has been repeatedly said by all of the courts of this state, “It has been for ’a long time the settled law in this state that it is not only necessary to aver these facts, but also to establish them by proof at the trial.” Manuel v. Railroad, 19 Mo.

— Hon. Chas. H. S. G-oodman, Judge. (1) The demurrer to the defendant’s answer should not have been sustained. By it the truth of every fact stated in the answer was admitted. The answer alleges that the title to the dwelling house insured was changed by virtue of tbe provisions of a certain deed of trust and the maturity of the debt thereby secured. The demurrer admits this to be true.

— Hon. E. J. Broadtjs, Judge. (1) Defendant’s verified plea of non est factum, denying all the allegations of plaintiff’s petition, required plaintiff to introduce in evidence the instrument sued on and prove its- execution by defendant; this was not done and for that reason the judgment is erroneous and ought to be reversed. Where the' record shows an entire failure to prove a material averment of the petition, there can be no recovery.

— Hon. John A. Hockadax, Judge. (1) A fair construction of the contract as shown by the terms thereof, as also by the acts of the parties themselves, was that Chandler should receive from Old-ham a fair valuation as pay for his improvements; provided, Chandler was not by reason of said sale in any manner prevented from the use and enjoyment of his slaughterhouse and pen for the whole period of six years. Belch v. Miller, 32 Mo.

— Hon. E. J. Beoadtjs, Judge. In an action of replevin in the circuit court, where plaintiff has obtained the possession of the goods, the defendants must, in their answer, claim the same and demand a return- thereof; otherwise the court cannot upon a finding in their favor,- give judgment against the plaintiff for their value. Eevised Statutes, 1889, sec. 7489; Young v. Glass code, 79 Mo. 574.

..Appeal from the Bay Circuit Court. — Hon. Elbridge J. Broadus, Judge. (1) No appeal allowed by tbe justice shall be dismissed for want of an affidavit or recognizance, or because the affidavit or recognizance made or given is ■defective or insufficient, if “the appellant, or some person for him, will, before the motion to dismiss is •determined, file in the appellate court the affidavit required.” Revised Statutes, 1889, sec. 6340.

— Hon. John A. Hockaday, Judge. (1) The court erred in admitting in evidence second proofs of loss, dated July 27. The verified plans and specifications called for in the letter of July 20, are not furnished with this proof of loss.

— Hon. Jno. A. Hockaday, Judge. '(1) Defendant’s mortgage was inadmissible, first, because the locus of the property does not appear from the mortgage itself. There is nothing in the mortgage to show that the corn is ip the-state of Missouri, much less on what farm, or for what year raised, or even that It was in Boone county, Missouri. Bozeman v. Fields, 44 Mo.

— Hon. John A. Hockaday, Judge. (1) The court erred in refusing to give the peremptory instructions numbered 1, 2, 3 and 4, for the reason that the evidence did not show that the several animals got on the railroad ground at any particular places, nor that the fence was defective at any place where any of said animals entered the railroad ground.

— Hon. E. M. Hughes, Judge. (1) In this case the partnership had ceased under a written contract to honestly settle the debts, and J. B. Harper’s pretended sale of all the goods to John Biek was void. Clayton v. Hardy, 27 Mo. 536. (2) The transfer of the goods that night was fraudulent. If the intention of such a transfer is to defeat other creditors the deed as- to them is fraudulent. Henderson et at. v. Henderson, 55 Mo. pp. 534, 555, 556, and cases cited.

— Hon. O. P. Smith, Special Judge. (1) A sale by one partner to his copartners of, his entire interest in the assets and business of the firm, works ipso facto a dissolution of the partnership.' SpaUnhaust v. Link, 46 Mo. 197; Allen v. Logan, .96 Mo. 591. (2) Previous to such dissolution the present demand had no existence.

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

Louis City Circuit Court. — Hon. Daniel D. Eisher, Judge. (1) The motion to vacate so much of the order granting the temporary injunction as required plaintiff to give bond to the sheriff as trustee, and to cancel said bond, should have been sustained. It imposed upon plaintiff conditions not imposed by statute, and not warranted by law. It compelled plaintiff to submit to an illegal requirement or lose his legal rights. Rubelman Hardware Co. v. Greve, 18 Mo.

<p>1. Justices’ Courts: suit on promissory note: election of theory of action. When suit on a promissory note is brought before a justice of the peace against one whose name is written on the back of the note above that of the payee, the plaintiff may be required to elect in the circuit court on appeal, if he has not done so theretofore, in what capacity he seeks to charge the defendant — whether as joint maker, indorser, surety or guarantor — and is bound by his election, when made.</p> <p>2. Promissory Notes: discharge of party by material alteration. The material alteration of a promissory note discharges a party to it, if it is made without his consent.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge.</p> <p>11A policy of life insurance or a designation of beneficiary, valid in its inception, remains so, although, the insurable interest or relationship of the beneficiary ceases, unless it is otherwise stipulated in the contract.” Bacon on Mutual Benefit Societies, sec. 253, and cases cited; Connecticut, etc., Ins. Co. v. Schaffer, 94 U. S. 457; McKee v. Ins. Co.,. 28 Mo. 383; Clark v. Allen, 11 R. I. 439; Dalbyv. Ins. Co., 15 C. B. 365; Campbell v. Ins. Co., 98 Mass. 381; Ins. Co. v.. Baum, Ind. 236. In respect to the doctrine of the cessation in insurable interest, as to its effect upon the rights of the beneficiary, benefit certificates are governed by the same rule as insurance policies. Martin v. Stubbings, 126 111. 387; Klkhardt Mut. Aid Ass’n v. BLo%ighton, 98 Ind. 149; Mutual, etc., Ass’n v. White, 9 N. W. Rep. (Mich.), 497. The Iowa Statute under which the plaintiff order was incorporated, authorizing, as it does, the designation of a legatee or legal representative (administrator) as beneficiary, is not restrictive in its operation. Martin v. Stubbings, 126 111. 387; Bloomington Mut. etc., v. Bhie, 120 111. 121; Masonic Ass’n v. Bunch, 19 S. W. Rep. (Mo.), 29. The designation by a member, A. B., of his beneficiary .as “Mrs. A. B.” is held to mean the wife living ' at the time of the designation, and not a subsequent wife who becomes his widow. Day v. Case, 43 Hun, 179; Richardson v. Richardson, 75 Me. 570. The right of the beneficiary depends upon contract, and not upon status. Niblack on Mutual Benefit Societies, 241; Jackman v. Nelson, 17 N. E. Rep. (Mass.), 529; Duncan v. Central Verein, 7 Daly, 168; Story v. Williamsburg, etc., Ass’n, 95 N. Y. 474.</p> <p>The appellant, Mrs. John Lally, is hot the beneficiary designated in the certificate. She is nowhere mentioned by name; the only designation being “wife.” Bell v. Smalley, 45 N. J. Eq. 478; In re Morrieson, 40 Ch. Div. 30. The certificate, so far as the relationship of the beneficiary to the member is concerned, speaks as of the time of the member’s death. Under H. A. Koster’s certificate, payable to 'his “wife,” the wife of John Lally is not the person intended, and she does not take. Tyler v. Odd Fellows’, etc., Ass’n, 145 Mass. 134; Union Mut. Aid Ass’n v. Montgomery, 70 Mich. 587; Chartrand v. Brace, 26 Pac. Rep. 152. The designation of beneficiary is an act testamentary in its character and should therefore be construed as such. Masonic, etc., Ass’n v. Bunich, 109 Mo. 560; Union Mut. Aid Ass’n v. Montgomery, 70 Mich. 587; 38 N. W. Rep. 588; National Aid ■ Ass’n v. Kirgin, 28 Mo. App. 80; Chartrand, v. Brace, 26 Pac. Rep. 152; Duvall v. Goodson,. 79 Ky. 244; Thomas v. Leahe, 67 Tex. 469.</p>

<p>The Evidence in this cause is considered, and is to held justify the judgment therein.</p>

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

<p>Appeal from the St. Louis City Circuit Court. — Hon. Lesov B.' Valliant, Judge.</p> <p>(1) A husband has no power, as such, by a building contract to create a liability of his wife’s legal estate to a mechanic’s lien. Mere knowledge or approbation on her part, or even directions and suggestions as to the work during its progress, do not amount to either an appointment of him as her agent or an adoption or ratification of his contract. Nor will the fact that the building is to be used as a residence for the wife raise the presumption of authority on his part. Gcvrnett v. Berry, 3 Mo. App. 197; Hughes v. Anslyn, 7 Mo. App. 400; Barker v. Berry, 8 Mo. App. 446; Planing Mill Co. v. Brundage, 25 Mo. App. 268; Meyer v. Broadwell, 83 Mo. 571; Carthage, etc. Lime Co. v. Bauman, 44 Mo. App. 386; Chicago Lumber Co. v. Mahan, 53 Mo. App. 425; Conway v. Crook, 66 Md. 292; Hughes v. Peters, 1 Coldw. 71; Geary v. Hennesy, 9 Bradw. 18; 2 Jones on Liens, secs. 1263, 1264; Hoffmann v. McFadden, 19 S. W. Rep. (Ark.) 753. The evidence.in this case having disclosed that the stonework- was done under an express written contract between the contractor and the husband, the law will not raise an implied one on the part of the wife. Nor do the facts warrant the inference of á ratification' on her part. Planing Mill Co. v. Brundage 25 Mo. App. 268; Carthage, etc. Co. v. Bauman, 44 Mo. App. 386. (2) The court erred in giving instruction number 1 for the plaintiff without explaining to the jury the facts, which would justify their finding that Mr. Bauman made the contract with Bornschein as the agent of Mrs. Bauman. The court should never submit to the jury a mixed question of law and fact. The law should be declared by the court, and the facts found by the jury. State to use, etc. v. Rayburn, 31 Mo. App. 385; Boogher v, Neece, 75 Mo. 383; Jordan v. Hannibal, 87 Mo. 673. (3) The court erred in permitting plaintiff to read to the jury, as against these defendants, the statement of the contractor that the plaintiff’s claim was correct for a balance of $670.34, it appearing that said statement was made long after he had purchased the materials and completed his work. Grace v. Nesbit, 109 Mo. 9; Deardorff v. Fverhartt, 74 Mo. 37; Philibert v. Schmidt, 57 Mo. 211.</p> <p>(1) Under the mechanic’s lien statute of this state, a married woman is free of disability to contract for the improvement of her land. Revised Statutes, 1889, sec. 6726, p. 1577. And she may contract for such improvement through an agent, who may be her husband. Carthage, etc. Co. v. Bauman, 44 Mo. App. 386. Although the contract be in writing, and with the husband alone, yet, if it appears that the wife is the real party in interest for whom, and by whose authority, the improvement is made, the wife’s land will be bound. Fischer v. Anslyn, 30 Mo. App. 317; Carthage, etc. Co. v. Bauman, 44 Mo. App. 386; Chicago Lumber Co. v. Mahan, 53 Mo. App. 425. (2) The reception in evidence of the account signed by the original contractor was not prejudicial error. (3) Appellant’.s criticism of the words “as her agent” written in the first instruction given for respondent is without merit. The question of agency was one of fact to be determined by the jury from the evidence. And the words “as her agent” being in common use, there was no necessity to explain them further to the jury. Holland v. McCarty, 24 Mo. App. 113.</p>

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

<p>Appeal from the Circuit Court of the City of St. Louis.— Hon. Daniel D. Fisher, Judge.</p> <p>(1) The attachment upon the real estate, was merged into the judgment rendered in' the case February 16, 1888. After the rendition of the judgment the lien theretofore existing under the attachment ceased, and the lien of' the judgment began to run. Drake on Attachment, see. 224a; Waples on Attachment, p. 583. It follows that, when the present plaintiff bought the property from McKenna (March 21, 1889), he bought it subject to a judgment hen, and this judgment lien expired at the end of three years from the day the judgment was rendered; that is to say, it expired on the fifteenth day of February, 1891. Revised Statutes, 1889, sec. 6012. The lien of an attachment does revive on the expiration of the judgment lien. Drake bn Attachment, sec. 224a; Bagley v. Ward, 37 Oal. 121. (2) The fact that the plaintiff in the attachment could not enforce his lien, owing to the stay of the execution, will not serve to extend his lien. Christy v. Flanagan, 87 Mo. 670; Chouteau v. Nucholls, 20 Mo. 442. A judgment lien is purely statutory, and cannot be extended beyond the term prescribed. Christy v. Flanagan, 87 Mo. 670, 672; Warner v. Veitch, 2 Mo. App. 459.</p>

Louis City Circuit Court.. — Hon. Leroy B. Valliant, Judge. A provision in an insurance policy, that it shall become null and void for nonpayment of premiums, is for the benefit and protection of the company, and may be waived by it. Hanley v. Life Association of America, 69 Mo. 383; Thompson v. Ins. Co. 52 Mo. 469.

<p>1. Master and Servant: proof of incompetency of latter. A servant., employed in a stated capacity for a fixed term on condition that he was competent therefor, was dismissed hy the master after he had been engaged for a month in the discharge of his duties but during the term of the employment. The master sought to justify the dismissal by proof of the servants incompetency. Held, that evidence of the servant’s general reputation as a workman, and of his failure to give satisfaction in other like employment, was not admissible for this purpose.</p> <p>2. Practice, Appellate: weighing the evidence in actions at law. When the solution of an issue of fact in an action at law depends upon the credibility of witnesses whose testimony is conflicting, this court will not review the verdict of the jury thereon on the ground that it is opposed to the weight of the evidence.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) It is a well established proposition of law that, when personal property has been delivered by one party to another in good condition, and the same is damaged while in the possession of the latter, the burden is on the bailee of showing that he treated the property in a ■ proper manner while in his possession, and that the loss or damage to it was not due to his negligence.

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

Louis City Circuit Court. — Hon. James E. Withrow, Judge. ■ There was no consideration for the agreement of October 13, 1885. Lancaster v. JSlliot, 42 Mo. App. 503. The agreement was fully executed by the parties by acting under it, and it needs no other or further consideration to support it. Bishop on Contracts, sec. 81. Even a partial execution of it was sufficient. Id., sec. 87.

<p>Appellate Jurisdiction: action by city of st. loots for enforcement of municipal ordinance. The supreme eourt has exclusive appellate jurisdiction of every cause wherein a political subdivision of the state is a substantial party, and, therefore, of an action by the city of St. Louis to recover a penalty or fine for the violation of one of its ordinances.</p>

— Hon. G-. D. Burgess, Judge.- (1) The complainant, being the wife of Wm. C. Kennedy, had no legal capacity to maintain this action. Her husband owned the legal title and was in the actual possession of the land in his own right, and while such owner and so possessed he sold the land to the defendant, who, under his purchase and in pursuance of his contract, entered upon and took the possession thereof.

— Hon. Gr. D. Burgess, Judge. (1) The court erred in given instruction numbered 1 on the part of the state. Said instruction ignored defendant’s theory of the case. State v. Roberts, 39 Mo. App. 47. (2) The court erred in refusing to give instructions numbered 3 and 4 on behalf of defendant. State v. Murray, 39 Mo. App. 127; State v. Larltins, 24 Mo. App. 410.

— Hon. GL D. Bubgess, Judge. (1) As the goods had not been removed from the demised premises they were subject to the payment of the rents. Taylor on Landlord and Tenant [5 Ed.], secs. 558, 583; O’Mara v. Jones, 46 111. 288.

— Hon. Cyrus. A. Anthony, Judge. (1) The court erred in sustaining defendant’s motion to set aside the order for temporary alimony, and in not making plaintiff an allowance to cover costs, herein. As to the alimony pendente lite the plaintiff is-entitled to such an allowance without regard to the result of the main suit. The court grants this allowance on a prima facie case made out.

— Hon. C. H. S. ■ (Goodman, Judge. ' (1) The principal question in this case is, whether or not the adding of the word seal to the sureties’ signatures is such an alteration of the bond as to avoid it and release the sureties.

<p>Appeal from the Clinton Circuit Court. — Hon. Jambs M. Sandusky, Judge.</p> <p>(1) The contract of sale transfers title when the price was ascertained by invoice. Blackburn on Sales, star, p. 124; Benjamin on Sales, p. 125. (2) Vendor lost Ms lien when he parted with possession. Blackburn on Sales, star, p. 124; Benjamin on Sales, sec. 1182. (3) Recaption of goods rescinds the contract, when made in pursuance of such offer on part of vendor.</p> <p>(1J In actions at law the finding of facts by the trial judge are as binding upon the appellate court as are the finding of facts by a jury. Handlan v. McManus, 100 Mo. 124. It is only claimed that the weight of the testimony shows the sale to have been conditional. This court would not reverse, even if it believed the claim to be well founded. Walton v. Railroad, 40 Mo. App. 544; City of St. Louis v. Lannigcm, 97 Mo. 175. An examination of the testimony will show that the claim is not well founded. (2) A case cannot be tried on one theory below and on an entirely different one in the appellate court. Capital Band v. Armstrong, 62 Mo. 59; Walker v. Owen, 79 Mo. 563; Nance v. Metcalf, 19 Mo. App. 183; Corn v. City of Cameron, 19 Mo. App. 573; Fell v. Mining Co., 23 Mo. App. 216. Every declaration of law asked by the plaintiff was given by the trial court. No declaration was asked by the defendant.</p>

— Hon. W. S. Herndon, Judge. (1) The court erred in overruling the defendant’s motion to quash the transcript in this cause. There are no file marks on the paper purporting to be an information. The court only acquires jurisdiction by an information being filed. The filing of the information must be noted by the officer whose duty it is to have the custody thereof. If the prosecution is by a private citizen, he can file his affidavit with the proper officer.

<p>Appeal from the DeKaTb Circuit Court '. — Hon. C. H. S. Goodman j Judge.</p>

— Hon. S. P. Houston, Special Judge. (1) The judgment of the supreme court of Missouri in the Farrell case was a judgment upon the merits within the meaning of the stipulation between the parties, and the court did not err in refusing to sustain the motion in - arrest.

— Hon. A. M. Woodson, Judge. (1) Defendants’ bond bound them to pay the execution debt, or render in execution all the property of Paddock seized or liable to seizure under the execution. Revised Statutes, sec. 4968. They stand ini Paddock’s shoes. McFall v. Dempsey, 43 Mo. App. 374; Mill Dam Foundry v. Sovey, 21 Pick. 443; 3 American and English Encyclopedia of Law, 900, 903, 907, and notes.

— Hon. A. M. Woodson, Judge. This defendant, in his amendment to his answer made to put in issue the new matter, introduced by the amendment into said ‘‘cross bill,” specifically called the attention of the court to the deed and to the fact that no recovery on the grounds stated in said amendment could be had under said deed. Defendants, Thomas and Richard Hickman, introduced in evidence their deed to this defendant for the land.

— Hon. John A. j Hockaday, Judge. (1) The circuit court obtained no jurisdiction of tbe subject-matter of tbis cause by appeal from the justice, because tbe affidavit for appeal fails to show whether the appeal is from the merits or judgment taxing cost. Revised Statutes,1889, sec. 6330; Whitehead v. Cole & Rodgers, 49 Mo. App. 428; Spencer v. Beasley, 48 Mo. App. 97.

— Hon. Jno. A. Hockaday, Judge. The declarations of law given by the court at the instance of the interpleader show that the case was tried upon the wrong theory, and the finding shows that it was followed by an erroneous verdict. It is true the court gave the decaration of the law offered by the defendant in the interplea. McHichols v. Rubleman, 13 Mo. App. 515; Seger’s Sons v. Thomas Bros., 107 Mo. 635.

— Hon. John A. Hockaday, Judge. (1) The evidence shows that interpleader had taken possession of the property in controversy after the conditions of the mortgage, had been broken, an,d he had aright to hold it until his interest was satisfied. Printing Press Co. v. Boeder, 44 Mo. App. 324; Bank v. Metcalf, 29 Mo. App. 384.

— Hon. John A. Hookah ay, Judge. The indictment charges that, “one George Mohr” did, etc., in a room in which the said “GeorgeMoores” had the possession, etc. “George Mohr” and “George Moores” are not “Idem Conans;” are different persons, and for this the indictment is bad. 16 American and English Encyclopedia, p. 122. The indictment in this case clearly charges the offense of which the.defendant has been convicted, and the judgment should be affirmed.

.Appeal from the Callaway Circuit Court. — Hon. John A. Hockaday, Judge. (1) It will be observed from the indictment that the “gambling device” is not named. The indictment says, “a certain gambling device ‘called7 a pack of cards.77 The indictment should allege that the-gambling device ‘was7 a pack of cards.

.Appeal from the Audrain Circuit Court. — Hon. E. M. Hughes, Judge. (1) The information is sufficient under section .4329, Revised Statutes, 1889. State v. Ramsey, 52 Mo. App. ■668; State v. Webb, 47 Mo. App. 599. (2) The information is sufficient and charges an offense under either section 3592 or 3593, Revised Statutes, 1889. This information follows the language of the statute of the .first section cited and is, therefore, good.

— Hon. G-. D. Burgess, Judge. The exact question here presented was decided ■adversely to the respondent by the supreme court of Missouri in Railroad v. Fowler, 20 S. W. Rep. 1069. It was there held that the land owner is not entitled, to interest on the award, since he has the right to-withdraw it at any time. For this reason we ask that the judgment of the circuit court be reversed and the cause remanded, with directions to enter judgment for $1,600.

— Hon. E. J, Broadus, Judge. (1) If Grilliam owned and was in the actual possession of the land up to the time it washed away, and then, upon its re-formation exercised dominion over it, claiming it, used it for cutting poles and tobacco sticks from till 1887, when he located the lines around the land, had the lines cleared away to show where they were, and to fence, located the corners, and began clearing the land, he was in such actual possession thereof that Reece’s…

— Hon. E. J. Bboadus, Judge.r (1) The evidence was sufficient to justify a submission of the question of fraud to the jury. If the assignee participated in the fraud, then the assignment was void. Prior and subsequent, illegal actions of the parties to the deed of assignment are proper to be submitted to the jury as evidence of the fraudulent intent of the parties at- the date of the assignment.

— Hon. W. W. Rucker, Judge. (1) The validity of the information, sufficient in form and substance, and signed by the proper officer, is not affected by appending to it the affidavit of the prosecuting witness. State v. Zeppenfield, 12 Mo. App. 573; State v. Buck, 43 Mo. App. 443.

— Hon. Gr. D. Burgess, Judge. (1) The hog transaction between the parties was a mere wagering agreement. No delivery of the possession or title to the hogs was ever intended under the guise of the contract, to pass from Harding to Manard. The suit is brought for the difference only, between the contract price of $4.10 per hundred “home weights” and the amount the hogs brought in Chicago. Such contracts are void. Johnson v. Kaime, 21 Mo.

— Hon. A. M. Woodson, Judge. (1) It is necessary that order of publication should state grounds upon which it is based. Wade on Notice [2 Ed.], sec, 1055; PattesoAs Missouri Form Book, sec. 182.. (2) In all cases where constructive service is had in lieu of that which is personal, there must be a strict compliance with statutory provisions and conditions. Schell v. Lelancl, 45 Mo. 292; Palmer v. McMaster, 33 Pac.

<p>Appeal from the St. Lotus City Circuit Court. — Hon. J. A. Harrison, Special Judge.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. J. A. Harrison, Special Judge.</p>

<p>1. Contracts: right op rescission. The breach of a contract will not warrant the rescission thereof by a party, if' it was occasioned by his own default.</p> <p>2. -: independent contracts. ■ When a contract requires a payment to be made at a time which may happen before a certain covenant of the payee is to be performed, such covenant and that for the payment are independent covenants.</p> <p>3. Practice, Appellate: judgment on agreed statement op pacts. When a cause is submitted to the trial court on an agreed statement of facts, and the proper judgment thereon is a mere conclusion of law, it is the duty of this court to render such judgment as the trial court should have rendered, if that of the trial court is found erroneous.</p>

<p>Appeal from the St. Louis Circuit Court. — Hon. James E. Withrow, Judge.</p>

Louis City Circuit Court, — Hon. Leroy B. Yalliant, Judge. The court committed no error in making alterations to the instruction offered by appellants, nor in giving the instructions offered by respondent. Mulford v. Ccesar, 53 Mo. App. 271; Kill v. Johnson, 38 Mo. App. 393; Crawford v. Spencer, 92 Mo. 498.

Louis City Circuit Court. — Hon. John A. Haeiiison, Special Judge. (1) “Old and New St. Louis” was a trust fund, and it and the contract, from their very nature, could not be assigned by Fanning & Gralvin without the consent of Mather & Blood. Boykin v. Campbell, 9 Mo. App. 495; Lansclenv. McCarthy, 45Mo. 106; Arkansas, etc., Co. v. Belden, 127 U. S. 379; Board of Commissioners v. Biebolcl, 133 U. S. 473.

Louis City Circuit Court — Hon. James E. Withrow, Judge. Where at the time of the assignment a debt of the assignor is secured by collaterals, and is subsequently partly paid to the creditor by moneys realized from the collateral before a dividend on the debtor’s estate is made, such creditor is not entitled to a dividend on the full amount of his indebtedness, but only on that portion which remains after deducting the moneys received from the collaterals. • National Bank v.…

Louis City Circuit Court.- — Hon. J. A. Harrison, Judge. It is not disputed that the owner and contractor could make any addition to, or omission from, the work they might agree upon, or alter or change the contract as they saw fit, without invalidating or rendering it void between themselves; but any such additions or omissions or alterations made without the sureties’ consent discharges them from liability. Warden v. By cm, 37 Mo. App. 470; Fitzgerald v. Beers, 31 Mo.

Louis City Circuit Court. — Hon» Daniel D. Fisher, Judge. The petition does not ¿liege that the attachment suit was finally determined in favor of plaintiff, and therefore does not state a cause of action. Mooney v. Kennett, 19 Mo. 551-555; Sharpe v. Johnston, 76 Mo. 660-669;’ Bixleyv. Bead, 26 Minn. 80; Vinal v. Gore, 18 West Ya. 24; Rothschild v. Meyer, 18 111. App. 284; Miller v. Milligan, 48 Barb. 37; Gorton v. B>eAuglis, 6 Wend. 420; Cardivalv.

Louis City Circuit Cou/rt. — Hon. Daniel D. Eisher, Judge. No proof of the statute law of Illinois having been offered, the disposition of this cause'must be governed by the common law, and at common law the contract sued upon was not invalid. Bawlins v. West Derby, 2 C. B., 72-80; Bloxsome v. Williams, 3 B. & C., 232; Merrett & Earle, 31 Barb. 40; 2 Parsons on Contracts, p. 757; 17 Am. Law Reg., p. 281.

<p>Accounting: insufficiency of pleadings and evidence. The petition and the evidence in this cause are considered! the former is held not to state, and the latter not to establish, a case entitling the plaintiff to an accounting with respect to the profits of a speculation, into which the plaintiff and one of the defendants had jointly ventured.</p>

Loiús City Circuit Court. — Hon. Daniel Dillon, Judge. Appellants’ first and second instructions should have been given.

<p>Appeal from the St. Lo%tis City Circuit Court. — Hon. Leeoy B. Valliant, Judge.</p>

Louis City Circuit Court. — Hon. J.. A. Harrison, Special Judge. (1) The justice had no jurisdiction because of the-local character of his statutory powers and the locality of the residences of the parties, plaintiff and defendant. The statute prescribes the limits of his jurisdiction. Revised Statutes, 1889, sec. 6126; Burns v. Lidwell, 6 Mo. App. 194: Bastv. Ketchmn, 5 Mo. App. 433; Clarksonv. Guernsey, etc. Co. 22 Mo. App, 111; Jewett v. Railroad, 38 Mo.

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

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The court committed error in admitting the testimony of Rainwater to the effect that, when he sold the goods in dispute to H. B. Burr, he represented to him that appellant, George Burr, was his partner. Cole v. Butler, 24 Mo. App. 76; Bates on Partnership, sec. 95; Bimel v. Hayes, 83 Mo. 200; Campbell v. Hastings, 29 Ark. 526; Thompson v. Banlc, 111 IT. S. 529.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Defendant’s instruction in the nature of a demurrer to the evidence should haye been given, as plaintiff’s own evidence established such contributory negligence on his part as should have defeated his action. Boot v. Sleeping Car Co., 28 Mo.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. A corporation organized in another state, but doing business and having property in this state, is subject to garnishment here. Revised Statutes, 1889, secs. 2538, 5218, 2009, 2010, 521; Bitter v. Ins. Co., 28 Mo. App. 140; Keatimg v. Refrigerator Co., 32 Mo. App. 297; Drake on Attachment, sec. 477; Murfree on Foreign Corporations, sec. 261; McAllister v. Ins. Co., 28 Mo. 214; Railroad v. Crane, 102 111. 249.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. The evidence shows that defendant absented herself from plaintiff without reasonable cause for the space of one whole year before the filing of his petition, and therefore the appellant is entitled to a decree of divorce.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Where the alleged adverse claim does not conflict with the possession or right of possession of the plaintiffs, and the defendant can bring no action at law to settle the title, the case is not within the provisions of the statute, unless plaintiff show that the alleged adverse claim is such as may be asserted in a court of equity entitling claimant to affirmative relief, and that plaintiff cannot as well maintain such…

Louis City Circuit Gom't. — Hon. > Jacob Klein, Judge. (1) The instruction given by the court at plaintiff’s request, which attempts to -define the risks assumed by the plaintiff, is erroneous. It excludes from the risk of employment all risks which arise from the defects of appliances or places in which plaintiff was required to work, even though they were patent defects, and such as were known, or might, by the exercise of ordinary care, have been known to plaintiff.

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

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The evidence that the local agents at McPherson were in the habit of issuing similar bills of lading and that they were recognized and parried out by the respondent is sufficient evidence of the authority of the local agent in this case. White v. Railroad, 19 Mo. App. 400; Twrner v. Railroad, 20 Mo. App. 632; Broolts v. Jameson, 56 Mo. 505; Sommerville v. Railroad, 62 Mo. 399.

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

<p>1. Illegal Trusts: enforcement in equity. A court of equity will not lend its aid to the enforcement of an illegal trust, and accordingly will not, at the suit of a debtor who has conveyed his property to hinder or defraud his creditors, compel a reconveyance to him.</p> <p>2. -: pleading. Under the general issue evidence may he received, which tends to show a cause of action never existed, or that it was void ab initio. Accordingly, when a petition alleges a lawful trust in favor of the plaintiff and seeks to enforce it in equity, it may he shown under a general denial that the trust was made for fraudulent purposes.</p>

Louis City Circuit Cowrt. — Hon. Daniel Dillon, Judge. The question before the court is one merely of the sufficiency of the evidence to warrant the action of the trial court in dismissing the bill. In such cases the appellate court will defer greatly to the opinion of the trial court. The witnesses are there present; their credibility can be determined by their manner and demeanor. Walker v. Owens, 25Mo. App. 587; Mathias v. O’Neil, 94 Mo. 52Ó.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The petition did not set forth a cause of action. White v. Van Houten, 51 Mo. 577; Donohoe v. McAleer, 37 Mo. 312; 6 Wait on Actions and Defenses, 169; Revised Statutes, see. 7494, p. 1734. (2) On the evidence the plaintiff ought not to recover. Dwyer v. Beppetoe, 10 S. W. Rep. 668; 1 Thompson on Trials, secs. 818, 819; also authorities cited supra. The defendant’s instructions. numbered 1 and 2 were properly refused.

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

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leboy B. Valliant, Judge.</p> <p>(1) The appellants have shown sufficient property-rights in the respondent corporation to entitle them to maintain this proceeding. Ludowishi v. Benevolent Society, 29 Mo. App. 337; State ex rel. v. Merchants Exchange, 2 Mo. App. 96; State v. Georgia Medical Society, 38 Gfa. 608; State ex rel. v. Benevotent Society, 72 Mo. 146. (2) The averments of the petition are sufficiently specific. State ex rel. v. Railroad, 77 Mo. 143; School District v. Lauderbaugh, 80 Mo. 190; State ex rel. v. Smith, 104 Mo. 661. (3) The right of the relators to membership in this incorporated association was pecuniarily valuable, and it does appear that they were members in good standing, and that they were deprived of their right of membership without a hearing and without cause. This is not a case where they violated any of the charter provisions or by-laws, so far as appears of record. State v. Grand Lodge, 8 Mo. App. 148; Steele ex rel. v. Benevolent Society, 42 Mo. 485.</p> <p>The lower court properly sustained respondent’s motion to quash the alternative writ, for the reason that on the face of the writ the relators were not entitled to the relief prayed for. State ex rel. v. Governor, 39 Mo. 388; State ex rel. v. Odd Fellows, 8 Mo. App. 148; People v. The Board of Trade, 80 111. 136; State ex rel. v. Paint Co., 21 Mo. App. 526; State ex rel. v. Fladd, 26 Mo. App. 500; People v. Masonic Ass’n, 98 111. 632; State ex rel. v. Temperance Benevolent Society, 42 Mo. App. 485-490.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Plaintiff having received from defendants the sum of $200 after any indebtedness was denied by defendants, and upon a written agreement that this covered all millwork in the building, it was error for the court below to allow a lien of $254 for this work, as as it did by its declarations of law. Plaintiff was estopped from.making such claim. Phillips on Mechanics’ Liens, secs. 272, 273.

Louis City Circuit Court. — Hon.. Daniel D. Fishek, Judge. The court erred in submitting the case to the jury upon an issue of fact not raised by the petition. Glass v. Gelvin, 80 Mo. 297; Clements v. Yeates, 69 Mo. 625;. Stix v. Matthews, 75 Mo. 99.

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

<p>Appeal from the St. Louis City Cirmit Court. — Hon.. Lekoy B. Yalliant, Judge.</p>

Louis City Circuit Court. — Hon.. .Jacob Klein, Judge. (1) The defense of a fellow servant was not setup in the answer of defendant, and hence not applicable. The averment of contributory negligence is not sufficient to let in the defense that the injury was caused by a fellow servant. Higgins v. H úlroad, 43 Mo. App. 548; Conlin v. Railroad, 36 Cal. 404; Northrup v. Ins.

<p>Damages: evidence of loss of earning capacity. In an action by a father for damages for injuries to his minor child, whereby the child (a boy) was crippled, there was evidence tending to show that boys thus crippled could not find employment in a number of avocations, and that their earning capacity was therefore lost entirely, or nearly so. The defendant adduced no evidence of an earning capacity on the part of such a cripple in any avocation. Held, that there was sufficient proof of the plaintiff’s damages in this regard.</p>

<p>.Appeal from the St. Louis City Ciraiit Court. — Hon. James E. Withrow, Judge. "</p>

— Hon. Henry M. Ramey, Judge. The testimony shows that the mirror was an over-top, a part of a mantel made according to special drawings; that it was designed alone for and built into this particular house. Every test of a fixture is present'; adaptability, annexation, and intention to make a per- • manent accession. These are matters of fact for a jury, of which in this case there is not merely some evidence, but the clearest and most satisfactory proof.

— Hon. E. J. . Broadus, Judge. • (1) The demurrer to the evidence should not have been sustained. The negligence of defendant was conclusively proven, and the question of plaintiff’s contributory negligence was clearly a matter for the jury to determine. The testimony of plaintiff, taken as a whole, does not show contributory negligence. At the most, it was only a doubtful case upon which sensible men might differ.

— Hon. R. H. Pield, Judge. (1) What constitutes reasonable time for a railroad company to be charged with knowledge that a gate is open or a fence down, and to close the one and repair the other, is… Held: as a matter of law, that negligence cannot be imputed to the railroad company for failure to discover the open gate or broken fence.

Appeal 'from the Macon Circuit Cowt. — Hon. Andeew Ellison, Judge. (1) We contend that defendant’s demurrer should have been given because there was not a scintilla of evidence to sustain the charge made in the petition that the cow came upon the track “at a point where the same passed through enclosed or cultivated fields.” This part of plaintiff’s case rests entirely.on conjecture. Henderson v. Railroad, 36 Mo.

— Hon. Henky M, Eamey, Judge. (1) The instruction given by the court on the part of the respondent, ordering the jury to find for the respondent, is erroneous. The court should have instructed the jury to find for the appellant. McAllister v. Lawler, 32 Mo. App. 91; Oyster v. Oyster, 32 Mo. App. 270-275; Adams v. Leip, 71 Mo. 597; Jenkins v. McCoy, 50 Mo. 348; Harris v. Turner, 46 Mo. 438; Morgner v. Biggs, 46 Mo. 65; Baker v. Mclntwrf, 49 Mo. App. 505.

— Hon. Darsey W. Shackelford, Judge. (1) The demurrer to the evidence should have been sustained. Plaintiffs’ land on which the crops were destroyed and damaged was not adjoining land to the railroad, nor next adjoining. Defendant was not bound to keep its fences in repair for the benefit of anyone except the adjoining owner. Kelly v. Bailroad, 65 Mo. 172; Smith v. Bailroad, 25 Mo. App. 113; Ferris v. Bailroad, 30 Mo.

— Hon. D. W. Shackelford, Judge. (1) The demurrer admitted everything which the evidence fairly tended to prove, but challenged its sufficiency in law. Bine v. Bailroad, 32 Mo. App. 634; 2 Thompson on Trials, sec. 2267; Jackson v. Ins. Co., 27 Mo. App. 62; Bine v. Bailroad, 100 Mo. 228. (2) The plaintiff was entitled to a reasonable time in which to test the machine and to enable him to ascertain whether it complied with the warranty upon which it was sold.

— Hon. Richard Field, Judge. (1) It was error for the court to instruct, that the description of the property contained in the advertisement warranted its quality, and that the advertisement warranted the hogs to be sound on the day of the sale, (twenty-one days after the advertisement) although the evidence might show that the purchaser relied on such advertisement, unless it should be further shown by'the evidence that the seller intended the advertisement to be a…

— Hon. Etchadu Field, Judge. The action of plaintiff’s counsel in the closing argument, in stating to the jury that he knew from his previous personal knowledge and experience as a telegraph operator, that the defendant’s employees had not testified to the truth in their statement of their inability to call another office, and in persisting in similar remarks, was under all the circumstances of the case, such improper conduct as rendered it error to submit the case to the…

— Hon. W. W. 'Wood, Judge. (1) “All goods and chattels not exempt by statute are liable to - be seized and sold upon execution.” Revised Statute, 1889, sec. 4915. (2) “The growing crops produced by annual planting and cultivation are chattels, and as such may be levied upon and sold under execution.” Kelly’s Justice Practice, p. 157; Bindley v. Kelly, 42 Ind. 294; Preston v. Byan, 45 Mich. 174.

— Hon. W. W. Wood, Judge. (1) There is a mingling together of items lienable with those non-lienable so that they cannot be separated upon an inspection of the account. Neither does the account show an itemized statement of credits or payments. Guass v. Hussmann, 22 Mo. App. 118; Foster v. Wolfing, 20 Mo. App. 89; Nelson v. Withrow, 14 Mo. App. 279; Riley v. Milling Co., 44 Mo. App. 525; Smith v. Haley, 41 Mo.

<p>1. Public Corporations: agent’s power in and out op convention. Certain individuals convened and acting as a body corporate may transact certain business and exercise certain powers given the corporations, yet these same parties not so convened are powerless, even by unanimous consent as individuals, to perform the duties enjoined on the body.</p> <p>2. Board of Equalization: record: clerk’s assistance: correcting mistakes. Amere assistant to the secretary of the board of equalization has no authority to make the record of the board, and his attempt to do so is a mere mutilation, unless made under the secretary’s direction; and if made under such direction, the secretary, upon discovering mistakes immediately thereafter, may correct any error and make it conform to the truth.</p> <p>3. -: ■ — :—: approval. • The statute does not require the approval of its record by the board of equalization, and the absence thereof can not impair the record’s legal effect; and if the board were required to sign the record, the failure to do so would not invalidate it.</p>

— Hon. W. M. Robinson, Judge. (1) The only question presented by the appeal in this case, is a construction of the act of 1891, statute governing usury and the validity of liens or mortgages upon personal property. I contend that the court erred in his findings of law in favor of the inter-pleader and against the plaintiff.

— Hon. W.- M. Robinson, Judge. (1) Neither J. R. Troup nor the Weston Land and Mineral Company, while the owner of the land in controversy, complied with the provisions of section 6441, Revised Statutes, 1879 (now section 7034, R. S. 1889); Revised Statutes, 1879, section 6442; Revised Statutes, 1889, section 7035; Session Acts, 1877, p. 313; Deslogev. Pearce, 38 Mo. 588.

<p>1. Chattel Mortgages: delivery. The infallible test of delivery is the fact that the grantor has divested himself of all dominion and control over the conveyance, as he appears to have done in this case.</p> <p>2. -: record: attachment: priority. An attachment levied prior to the recording of a previously given chattel mortgage, will not take precedence of such mortgage. Authorities and statute discussed.</p> <p>3. -: attachment: interpleading. The seizing of mortgaged property under an attachment and removing it, gives the mortgagee an option to take it into his possession, which he may exercise hy interpleading in to the attachment.</p> <p>4. Attachment: interplea: replevin. An interplea in an attachment is in the nature of a replevin and engrafted thereon hy the statute.</p>

— Hon. D. P. Stratton, Judge. (1) Plaintiffs were not guilty of any negligence in accepting notes three and four, because the signatures of J. W. Lillard and Willis Hughes thereon were so like their genuine signatures that it was impossible to tell the difference. Because plaintiffs were not required to go out and ascertain the genuineness of signatures. Plaintiff is entitled to recover upon the note sued on. White v. Middleioorth, 42 Mo.