Volume 56 — Missouri Appeal Reports

— Hon. John W. Henby, Judge. (1) The only authority in law for a claim for storage and keeping of attached property is contained in the following sections of the statutes: Revised Statutes, 1889, sec. 4997. These statutes, limit the recovery of such charges and lien as are claimed herein to the allowance which may be made by the justice or court, and which are taxed up as part of the judgment in the attachment. Shumway v. Leakey, 73 Cal. 260; Geilv.

<p>1. Special Tax Bill: materiality or non-compliance with controlling ordinance. A general ordinance of the city of St. Louis regulated the slant of sidwalks in the city, and declared a violation of its provisions a misdemeanor. A sidewalk was constructed at the intersection of two streets having different grades. The trial court found that, owing thereto, a literal compliance with the ordinance was impracticable, and that a deviation therefrom, made at the direction of the representative of the city, did not render the work less valuable to the adjoining property, nor less convenient, passable and safe for public use. Held, Bond, J., dissenting, that this deviation was immaterial.</p> <p>■2. -: -: apportionment op speoial tax. The deviation referred to occurred only in a small portion of the sidewalk. Held, by Bond, J., that'a special tax bill issued for the entire work was apportionable, and that, though invalid to the extent to which it represented work done in violation of the general ordinance, it was enforeible for the remainder of the tax.</p>

<p>1. Continuance: insufficiency of application. An application for the continuance of a cause owing to the absence of a witness is insufficient, if it fails to show why the deposition of the witness was not taken.</p> <p>2. Practice, Appellate: non-prejudicial error. To warrant the reversal of a judgment on appeal, an error must materially affect the merits of the action.</p> <p>3. Practice Trial: preservation of exceptions by motion for new trial. The propriety of remarks of the trial court in the exclusion of evidence will not be considered on appeal, when the exception thereto has not been called to the attention of the trial court by motion for new trial.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The injunction and order to interplead in this case were improperly granted. It is manifestly improper and discourteous for a court to enjoin an action pending in a foreign court, save in cases where the court by assuming jurisdiction can do complete justice, which the foreign court by reason of the circumstances is unable to do. Such interference leads to conflicts of jurisdiction without benefit to the litigants.

Louis City Circuit Court. — Hon. Daniel D. Fished, Judge. (1) The hearsay testimony as to admissions made by the vendor long subsequent to this sale, and not in the presence of the vendee, was clearly incompetent, and should have been excluded. O’Neil v. Crane, 67 Mo. 250; Fongue v. Burgess, 71 Mo. 389; Hoslcins v. Bailroad, 19 Mo. App. 315. (2) And the admission of this incompetent testimony was not cured by the subsequent instruction to the jury to disregard it.

<p>1. Assignments for Creditors: waiver of mortgage rights. If an assignment for the benefit of creditors includes chattels theretofore mortgaged by the assignor to the assignee, the latter by his acceptance of the trust waives his right to execute a power of sale conferred upon him by the mortgage; but the priority of the mortgage over the assignment remains unaffected.</p> <p>'2. -: -: removal of assignee. But though the assignee has omitted to inventory the mortgaged chattels, and on the advice of his attorney has sold them as mortgagee, he should not, if he has realized their full value, and has credited the proceeds on the mortgage debt, and has also disposed of and properly accounted for all other assigned effects, be removed from office solely by reason of his error in thus proceeding under the mortgage.</p> <p>5. -: EFFECT OF EXCESSIVE EXPENDITURES BY ASSIGNEE. An assignee in good faith paid counsel fees to his attorney without any order of court. On his final settlement these outlays were found excessive and partially disallowed after which he accounted for the amount thus disallowed. Held that these outlays did not constitute ground for depriving him of compensation for his own services, or refusing him a discharge.</p>

Louis City Circuit Court. — Hon. John A. Harrison, Special Judge. (1) The court erred in permitting plaintiff to prove that the neighborhood of Seventh and Wash streets is densely populated.

<p>Criminal Law: effect of death of defendant pending an appeal. The death of a person, convicted of a misdemeanor, pending an appeal by him to this court abates further proceedings in the cause. In such ease, on sufficient evidence of the death, this court will dismiss the appeal to enable the trial court to make proper entries for the disposition of the cause.</p>

— Hon. James Gibson, Judge. The pretended affidavit for appeal was wholly insufficient to give the circuit court jurisdiction of the subject-matter of the action, and the court should have sustained plaintiff's motion to dismiss the appeal. Section 6330, Revised Statutes, 1889, requires the affidavit for appeal to state “whether such appeal is from the merits or from an order or 'judgment taxing costs.” Spencer v. Beasley, 48 Mo. App. 97; Whitehead v. Cole d Rodger, 49 Mo.

<p>Law and Fact: illegitimate inferences by jury. When a jury draws from facts in evidence an inference in favor of a party, which is opposed not only to the probabilities arising from surrounding circumstances, but also to the testimony of all the eye witnesses of the occurrence, and likewise to the inferences drawn by such party himself at former trials of the cause, and the eye witnesses are in no wise impeached, a due regard for the law requires that the verdict should not be permitted to stand.</p>

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

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

<p>1. Practice Appellate: common error in instructions. An appellant cannot complain of error in the instructions given for the respondent,'which is brought about by similar errors in his own.</p> <p>2. Railroad: obligation to maintain openings and gates in fences at farm crossings : law and fact. The obligation of a railway company to maintain openings and gates in its fences exists under section 2611 of the Revised Statutes not at all farm crossings, but only at those which are necessary. Whether a crossing is necessary for the purposes of the statute is a mixed question of law and fact.</p> <p>3. -: -. And held by Bond, J., that, when a railway company has failed to construct gates and openings in the manner prescribed by statute, it cannot invoke as a defense to an action based thereon its ignorance of, and the absence of a reasonable time for the discovery of, the condition of the same.</p>

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

.Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. Section 2782, Revised Statutes, is a complete bar ■to the recoveries sought by the respondents. They .seek to avoid its effect by asserting that that statute is inoperative and without force. But there is nothing in this suggestion. The statute has been construed as a. subsisting statute. State Savings v. Kellogg, 52 Mo. 583-591;- Perry v. Turner, 55 Mo. 418-425.

Louis City Circuit Court. — Hon. • James E. Withrow, Judge. The allegation of the petition, that plaintiff has made liberal provision for the defendant, is not sustained by the proof. Cerche v. Cerche, 100 Mo. 237; McCartin v. McCartin, 37 Mo. App. 471. The house conveyed to her is subject to his curtesy estate. Soltan v. Soltan, 93 Mo. 307. Plaintiff is not the “injured party.” Hoffman v. Hoffman, 43 Mo. 547; McKehan v.McKehan, 84Mo. 403; Dwyer v. Dwyer, 2 Mo. App. 17.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The petition does not state a cause of action. (2) Appellee was conclusively presumed to know the laws of appellant, whether contained in the pamphlet, or in the records. Harvey v. Ancient Order of United Workmen, 50 Mo. App. 477; Tuttle v. Walton, 1 Q-a. 49; Pfister v. Gerwig, 122 Ind. 570; 1 Beach on Corporations, secs. 85, 321; McLellan v. Public Schools, 15 Mo. App. 366.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The money being paid into court by the depot' company, on notification plaintiff surrendered its possession and the depot company entered on the land and sold the improvements which had been transferred by plaintiff to Charles Slevin. Charles Slevin would, therefore, be estopped from questioning plaintiff’s right -to the $1,000, assessed as the value of these improvements. Bicev. Crojfman, 56 Mo. 434.

JError to the St. Lo%ds City Circuit Court. — Hon. Leroy B. Yalliant, Judge. The alleged request of the defendant infants, upon which the plaintiff’s claim is based, was nugatory. Tupper v. Cadwell, 12 Mete. 559, cited with approval in Billon v. Bowles, 77 Mo. 609. The alleged request of the infants being void, plaintiff is in the situation of a volunteer. Such a person acquires no rights as against one whose obligations he discharges.

— Hon. James-Gibson, Judge. The amended petition does not change the cause-of the action. The same evidence will support both petitions, and the same measure of damages will apply to both. Therefore, it is an amendment. Scovill v. Glasner, 79 Mo. 449. That additional allegations are made to connect the newly made defendant with the-cause of action is no bar to the amendments. Divine-v. Duncan, 52 How. Pr. 446; Brown v. Leigh, 49 N. T. 78; Luther v. Barnett, 62 Mo. 159.

— Hon. J. H. Slover, Judge. (1) The ease was tried by both plaintiff and defendant on the issue made by such instructions and defendant cannot complain now. Sail v. Water Co., 48 Mo. App. 356; Carst v. Good, 50 Mo. App. 149.

— Hon. John W. Henry, Judge. (1) The justice had no jurisdiction to try this ease, which is based on plaintiff’s title to real estate. Bevised Statutes, sec. 6124; Bidivell v. L. & I. Co., 76 Mo. 321; Patterson v. Taney, 81 Mo. 379; State, etc., v. Hopkins, 87 Mo. 519. (2) And since the damage complained of is, as it is stated, an injury to the occupant, and not to the owner. Boussen v. Benton, 6 Mb. 592; Cochran v. Whitesides, 34 Mo. 417; 12 Am.

— Hon. J, H. Slovek, Judge. (1) It is certain that this Newman claim is not a demand “against plaintiff, nor could any judgment be rendered on it against him. This fact is conclusive against his right of counterclaim, as a legal demand under the statutes.” Revised Statutes, sec. 2050. Barnes v: McMullins, 78 Mo. 260. (2) Nor is this demand an itemized account, that being “one which states the items making up the aggregate of 'the demand.” State exrel. v. Smith, 89 Mo. 408.

— Hon. J. D. MoTrimbde, Special Judge. (1) The contract, even if made as claimed by defendant, was not within the authority of plaintiff’s agent, and he is, therefore, not bound by it. “If the act of the agent substantially varies from, or exceeds, the authority in nature, degree or legal effect it will not bind the principal.” 1 Wait’s Actions and Defenses, p. 240. (2) There was no consideration for the agreement claimed by defendant to have been made by plaintiff’s agent.

— Hon. John W. Henry, Judge. (1) The court erred in peremptorily directing the jury to find for the plaintiff. The evidence was conflicting on a material point and the jury are the sole judges of the credibility of the witnesses. Patton v. Pierce, 25 Mo. App. 59; Taylor v. Short, 38 Ibid. 21; Twohey v. Fruin, 96 Mo. 104. (2) Stock certificates are personal property and denied the attributes of negotiability such as characterize bills of exchange and promissory notes.

— Hon. R. L. ■ Yeager, Special Judge. (1)' The mechanics’ lien law contemplates that the account filed with the lien, should show all the debit .and credit items of the account affecting the premises ■on which the lien is asked. McWilliams v. Allen, 45 Mo. 573; Oster et at. v. Rabeneau, 46 Mo. 599; Graves ~v. Pierce, 53 Mo. 428; Rude v. Mitchell, 97 Mo. 373; Dooley v. Barker, 2 Mo. App. 327; Lowis v. Cutter, 6 .Mo, App. 57; Schulenburg %. Vrooman, 7 Mo.

— Hon. C. O. Tiohenob, Special Judge. (1) The court erred in directing the jury to find for the plaintiff. The questions of fact involved should have been submitted to the jury. Whether Abell was acting for the plaintiff in the purchase of this paper was a question of fact. If he was, then his knowledge as to the character of the paper was the knowledge of the plaintiff. Upon these facts it was for the jury to say whether Abell was acting for the Bank.

.Appeal from, the Jackson Circuit Court. — Hon. John W. Henry, Judge. (1) The court erred in' admitting in evidence the ■statute of the state of Iowa, and Mr. Stiles’ oral testimony as to the unwritten law of that state relative to the liability of telegraph companies; and also erred in giving the third, fourth and fifth instructions on behalf ■of the plaintiffs. The telegram in question was sent from Cedar Rapids, Iowa, to Kansas City, Missouri.

.Appeal from, the Renry Circuit Court. — Hon. James H. Lay, Judge. (1) Instruction number 1, given by the court of its own motion, is clearly erroneous. It assumes that a part of the hay was put up by the direction of defendant. There was no substantial testimony that defendant directed plaintiffs how to put up the hay, at most, it was a controverted fact which should have been left to the jury.

.Appeal from the Bates Circuit Court. — Hon. „ James H. Lay, Judge. (1) Party wall law is, in one sense, sui generis; it is for contribution, and they are essentially equity cases involving equitable estates, and for these reasons the usual law of contracts does not apply, and if the party wall cases cited by respondent be applicable do this case, then our equitable defense should have been submitted to the jury. Harter v. Evans, 101 Mo. ■661; Sharpe v. Cheatham, 88 Mo. 504.

— Hon. D. P. Stratton, Judge. (1) Tfie defendants’ claim of possession under tfie forfeited mortgage was fully met by tfie reply tfiat tfiey field under tfie contract of bailment, made subsequent to tfie forfeiture, commencing as a loan, and continued for fiire; a fact incorporated in refused instruction number 5, asked by plaintiff.

— Hon. D. P~ Stratton, Judge. Instructions numbers 4 and 6 submitted to the jury for their consideration the question of permanent, or prospective damages to the real estate-, which, should not have been done. Only the actual damage sustained to the rental value of the real estate at the- date of the, institution of the suit, and not the permanent or pros■pective damages to the inheritance, can be recovered, since the nuisance complained of is of a temporary •character.

— Hon. Argus Cox, Judge. ■ (1) The evidence is without contradiction that the message was promptly transmitted from Salem. The law presumes that it reached Lebanon promptly. The burden of proof is on plaintiff to show delay in transmission. The evidence is wanting in any affirmative proof that there was any delay in transmission. If there was delay at all, it was in the delivery and not in the transmission of the message.

— Hon. W. W. Wood, Judge. The statement is not good. Respondents are attempting to recover on a note, and it was not made a part of statement, but only introduced as evidence. A copy in the statement is not sufficient. Revised Statutes, section 6138,

— Hon. W. W. Wood, Judge. (1) When defendant introduced evidence tending to show breach of warranty, or fraud, or deceit, or failure of consideration, the burden of proof then rested upon the plaintiff to show that the deceased, Wm. Jones, purchased the note sued on, in good faith, for value before maturity, and the court should have so instructed. Johnson v. McMwrphy, 72 Mo. 278; Bank v. Stanley, 46 Mo. App. 440; Whaley v. Neill, 44 Mo. App. 316; Carson v. Porter, 22 Mo.

Affirmed. In the absence of a bill of exceptions there is no record in this case except the record proper, the statement, the summons and the judgment. The transcript of the justice is never a part of the record unless made so by the bill of exceptions.

Saline Circuit Court. — Hon. Richard Eield, Judge. (1) The demurrer to the evidence should have been sustained. The plat introduced by plaintiff showed that there was no street or highway at the point where the fence was built, and negatived the intention to dedicate land for a street at said point. And no act of the owner of the land is proved to show an intention different from what appears from the plat. The evidence shows that, the plat was on record as required by law.

— Hon. Richard Field, Judge. (1) A valid agreement for an extension of time, for a valuable consideration, and for a definite period, releases the security not assenting thereto. Parsons on Bills and Notes, 238; Ins. Co. v. Carson et al., 31 Mo. 218; Smarr v. Schnitter et al., 38 Mo. 478; Stilhvell v. Aaron, 69 Mo. 539; Bank v. Leavitt, 65 Mo. 562; Ins. Co. v. Hatick, 83 Mo. 21; Ins. Co. v. Hauck, 71 Mo. 465.

— Hon. Richard Field, Judge. (1) When the parties contract on the basis of the continued existence of a given thing (or its nonexist•ence unknown to the parties), a condition is implied that if the performance is, or becomes, impossible from ~the.. perishing or nonexistence of the thing, that ■excuses performance. Walker v. Tucker, 70 111. 527, •543; 1 Chitty, Cont. [11 Am. Ed.], 1074; 10 Am. and Eng. Encyclopaedia of Law, 181, title, Impossible Cont., par. 2.

— Hon. Richard Field, Judge. (1) The court erred in not permitting defendant to prove the part of the contract not reduced to writing showing plaintiff’s obligations thereunder. The written memorandum offered in evidence is not, and does not purport to be, the entire contract. 1 Greenleaf on Evidence, sec. 282 and 284a; Chitty on Cont. [7 Am.

— Hon. D. W. Shackleford, Judge. (1) The chattel mortgage from Huston to Smith,. Heddens & Co., though not acknowledged, was good as-between said parties. Cooley v. Rankin, 11 Mo. 642; Hannah v. Davis, 112 Mo. 599. If, then, Smith,.

JSrror to Cooper Circuit Court. — Hon. D. W. Shackleeobd, Judge. The plaintiffs were not entitled, under our statute, to a mechanic’s lien upon the pump, boiler, engine and machinery. Richardson v. Koch, 81 Mo. 264; Graves v. Fierce, 53 Mo. 423; Collins v. Mott, 45 Mo. 100. (1) The demurrer was properly overruled. The facts in this case, as shown by the averments of the petition, are very different from the case of Richardson-v. Koch, 81 Mo. 264.

— Hon. Rudolph. Hirzel, Judge. (1) The court should have rendered j udgment for the defendants on the pleadings. The first two paragraphs in answer to petition set up complete defenses in themselves, and the replication of defendants thereto admits-the facts stated in said paragraphs and fails to allege-sufficient facts to constitute in law an avoidance.

John A. Hockaday, Judge. Now we contend that under the pleading in this case the only question presented for the court to pass upon is whether or not, the new matter set up in the defendants’ answer amounts to a complete defense to the suit; if it does, then the court erred in refusing defendant’s instructions numbers 2 and 3, and in giving plaintiff’s instructions numbers 1 and 2.

.Appeal from the Carroll Circuit Court. — Hon. E. J. Broadus, Judge. ' (1) The court erred in allowing a letter written by respondent’s clerk in Kansas City to Market, its manager in Norborne, to be read in evidence to the jury. It was clearly hearsay, and contained a proposition to be submitted to Cleary which was not within the contract or in issue on the trial.

— Hon. Richard--. Field, Judge. (1) Respondent cannot recover by motion under-sections 8351, 8352, Revised Statutes, 1889.. Tba statute does not confer upon á surety seeking to recover .from Ms cosurety his proportion of the debt, the remedy by motion. The right given by section 8349 applies solely to the penalty of interest given and fixes the proportion to be recovered.

— Hon. John W. ' Henry, Judge. (1) The two courts of appeals of Missouri construed section 598, Revised Statutes, 1879, as a rule of public policy. Heilv. Railroad, 16 Mo. App. 363; Orrv. Railroad, 21 Mo. App. 336; Baker v. Railroad, 34 Mo. App. 112. The supreme court in the Bimmitt case, construed it as a rule of evidence and says it establishes “the English rule” in this state.

— Hon. James H. Lay, Judge. (1) The mortgage pleaded in first count of plaintiff ;s petition was not recorded as required by law, being recorded in a book belonging to a series used for recording conveyances of real estate. Revised Statutes, 1889, sec. 7432; Jennings v. Sparkman, 39 Mo. App. 663; Parsons v. Lent, 34 N. J. Eq., 67; Ins. Co. v. White, 17 N. Y. 469; Ins. Co. v. Dolce, 87 N. Y., 263; Sawyer v. Adams, 8 Yt. 172, s. c., 30 Am.

— Hon. Chas. ' W. Sloan, Judge. The creditor acquires only such rights of the garnishee to the defendant, as the debtor possessed at the date of the garnishment; and the garnishee cannot be placed in a worse position than if he had been directly sued by the debtor. Weil v. Tyler, 38 Mo. 345; Firebang v. Stowe, 36 Mo. 133; McPherson v. Railroad, 66 Mo. 103.

— Hon. Richard Field, Judge. (1) Under the law of condition precedent and from the evidence in the case, Katy Hoffman fully complied, in every particular, with all the requirements of the certificate of insurance by her to be performed. This is her cause of action — she sues for the death benefit. Albert Hoffman did not, nor does any one for him, ask for any benefit from the respondent. And we cite the following .authorities: Acc’t Ass’n v. Smith, 126’ Pa.

— Hon. J. H. Sloyer, Judge. (1) The testimony clearly shows that this was portable trade machinery, to be used independent of the real estate, in no way a betterment, and in no way increasing or lessening its value as real estate, and was merely used for mining or crushing purposes and accessory to the rock business, could be moved .without disturbance to the land, and as independent of it as any machinery could possibly be.

— Hon. R. H. Field, Judge. The plaintiff received notice as contemplated by the statute. Revised Statutes, 1889, sec. 6342; Page v. Railroad, 61 Mo. 78; Brewing Co. v. Hauesler, 11 Mo. App. 387. The evidence is conclusive that at the day of trial and thereafter, plaintiff and his attorney had knowledge of appeal. Attorney said he was glad case had been appealed. Plaintiff tried to compromise the case. This occurred at divers times and testified to by sundry individuals.

— Hon. R. H. Field, Judge. (1) The fact that the case was tried by the lower court alone, does not remove the objection, if such appears from the record, that the instructions were inconsistent or conflicting. Krider v. Milner, 99-Mo. 145; Mead v. Spalding, 94 Mo. 43; Catty v. Clark, 28 Mo. App. 332. (2) Instructions must not be inconsistent. Nichols v. Jones, 32 Mo. App. 657; Mortinowsky v. Hcmnibal, 35 Mo. App. 70; Stone v. Hunt, 94 Mo. 475.

— Hon. Jas. M. Sandusky, Judge. (1) A conveyance of property, as security for the payment of money, is a mortgage, no matter what the parties intend in reference to redemption. The conveyance may be absolute on its face, and the result in equity is the same; and parol evidence is competent to show the intention of the parties and the real character of the transaction.

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

— Hon. E. M. Hughes, Judge. There was no evidence tending to prove that Holcomb, before this transfer, had ever agreed to pay, or was under any legal obligation to pay, attorney’s fees for collecting these debts or securing or protecting his preferred creditors. It was a voluntary transfer founded upon a consideration which the' law does not recognize as valuable, and was made in pursuance to an agreement which could not be enforced.

— Hon. R. E. Roy, Judge. (1) “No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity, unless the insured shall have fully complied with all the foregoing requirements.” The above condition in the policy sued on has been passed on in a case exactly like this one and upheld. Proofs not rendered within thirty days are too late. Gould v. Ins. Co., 51 N. W. Rep. 455; opinion on rehearing, 52 N. W. Rep. 754.

— Hon. Ben E. , Turner, Judge. (1) The road commissioner did not, §,s a fact, view, mark out and survey, the route and line of this road, which must be done. Revised Statutes, .1889, sec. 7798. This means an actual survey — viewing and marking out of the' line of the road, is the actual measurement — fixing corners and marking boundaries, .etc. Revised Statutes, 1889, sec. 6570; Sutherland on Statutory Construction, page 304; United States v. Gresham, 8 Wall, 330; Dawsonv.

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

— Hon. Ben E. Turner, Judge. Where, as here, the undisputed evidence shows that to inclose the right of way would necessitate the building of cattle guards and wing fences at a point where it would endanger the lives of the employees in the performance of their duties, and also interfere with the same, plaintiff ought not to recover. Pearson v. Railroad, 33 Mo..App. .543; Jennings v. Railroad, 37 Mo. App. 651; Kneadle v. Railroad, 19 Am. & Eng.

— Hon. R. E. Roy,, Judge. ' (1) While it is conceded that a legal cause of action may by the answer be made an equitable case, such equitable defense must be pleaded fully and specifically and the relief must be prayed for as in a bill in equity, the defense being in the nature ,of a cross bill. Bliss on Code Pleading, sec. 347; Ellis v. Bail-road, 51 Mo. 200; Wolfv. Schaeffer, 74 Mo. 154; s. o., 4 Mo. App. 372; Carter v. Prior, 78 Mo. 222.

<p>Appeal from the Pike Circuit Court. — Hon. R. F. Roy,. Judge.</p>

— Hon. R. P. Roy, Judge. The only issue in the case was as to the making of the oral contract, and, if evidence thereof was admissible, the burden of proof was clearly on plaintiffs. By the introduction of the deed of trust and note and resting their case this onus was not discharged, and the court ought to have sustained defendant’s demurrer to plaintiff’s evidence. Thompson on the Law of Trials, sec. 2245; Bolandv.

— Hon. E. M. Hughes, Judge. (1) Plaintiff had a full and complete remedy at law. TTuder the provisions of section 8351; of Revised Statutes, his remedy was ample. He has obtained no relief in the decree rendered in this cause which he would not have received, had he followed the statutory remedy. (2) The decree is based upon the alleged tender made by plaintiff to defendant.

— Hon. Ben E. Turner, Judge. This appeal is upon the ground that the- trial court, erred in granting defendant a new trial. The only question in this record is, whether the trial court erred in refusing defendant’s attorneys the privilege of arguing the case to the jury when the last instructions were given. Where a material fact is at issue, either party has an absolute right to have his counsel address the jury.

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

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

— Hon. Ben E. Turner, Judge. The record shows that on January 27, 1885, the property out of which the $1,000 in controversy was received by J. H. Mott, was purchased by him with his own means, and the title put in his wife, and further, the property having been deeded to the wife durin the coverture, the law presumes that the husband paid for it. Payton v. Bragg, 113 Mo. 505; Sloan v. .Torry, 78 Mo. 623; Seits v. Mitchell, 94 U. S. 580.

— Hon. W. W. Edwards, Judge. When the defendant delivered the property in controversy to the plaintiff the sale of it was complete. The title passed with the delivery. Kendall, etc., Co. v: Bain, 46 Mo. App. 581; Hamilton v. Clark, 25 Mo. App. 428. The verdict was for the right party and will not be disturbed for mere informality. Garth v. Caldwell, 72 Mo. 628; Johnson v. Lockhaven, 46 Mo. App. 463; Rea v. Ferguson, 72 Mo. 225; Clarkson v. Jenkins, 48 Mo. App. 122.

<p>Criminal Law: indictment for sale of liquor by dramshop keeper. An indictment for the sale of intoxicating liquors by a dram-shop keeper without license must, under the present rulings, distinctly state the quantity of the liquor charged to have been sold. A charge that the defendant has sold less than three gallons (though this is what the statute prohibits) is not a sufficient specification of the quantity.</p>

— Hon. Jos. Cravens, Judge. (1) The information is good and sufficient in and of itself and does not need the aid and support of any affidavit, good, bad or indifferent. State v. Hart, 47 Mo. App. 653; State v. McCarver, 47 Mo. App. 650; State v. Ransberger, 106 Mo. 135. (2) It is sufficient in an indictment or information to describe the owner of the stolen property by his initials. State v. Nelson, 101 Mo. 477; State v. Reily, 100 Mo. 494; State v. Kellar, 53 Mo.

— Hon. W. N-Evans, Judge. (1) Where the indictment in several counts charges-the different means by which the offense had or might have been committed, it is unnecessary for the verdict-to specify upon which count the jury found defendant-guilty. A general verdict is sufficient.

<p>1. Justices’ Courts: defective affidavit on appeal. The failure of an affidavit for appeal from a justice's court to state whether the appeal is taken from a judgment on the merits, or an order taxing costs, is not a jurisdictional defect. .</p> <p>2. Parties Plaintiff: action by agent in his own name. An agent cannot sue as the trustee of an express trust, unless he holds the legal title to the matter in suit, or he sues upon a contract made in his own name.</p> <p>3. Replevin: effect of acts of possession as evidence of title. Acts of possession with respect to property in controversy in an action of replevin will not avail the plaintiff as evidence of title, when his own evidence shows that the title is in another person.</p>

■Appeal from the Laclede County Circuit Court. — Hon. C. C. Bland, Judge. The court, in which the application for change of venue is made, does not lose jurisdiction of the cause by the mere fact of the application, but it is the order granting the change of venue which divests it of jurisdiction and confers it upon the court to which the change is granted. Whits on v. Whitson, 89 Mo. 58. The record does not show that a change of venue was ordered.

— Hon. J. C. Laneson, Judge. (1) Tbe court erred in allowing the state to attempt to impeach the defendant by showing that he had made prior inconsistent statements to the witness Mitchell without first having laid the proper foundation therefor. State v. McGraw, 74 Mo. 573; State v. Foye, 53 Mo. 336; 1 Q-reenleaf on Evidence [13 Ed.], sec. 462. And the witness thus contradicted being the defendant, the error is prejudicial. State v. Devlin, 7 Mo. App. 32.

M. Hughes, Judge. An instruction on the whole ease must tender all the issues on both sides. FLayner v. Churchill, 29 Mo. App. 676; Brownfield v. Ins. Co., 26 Mo. App. 399; State v. Brumley, 53 Mo. App. 130; Birtwhistle v. Woodward, 94 Mo. 113. The essential conditions of the conditional contract with which defendant failed to comply, according to plaintiff’s theory, are omitted from defendant’s instruction.

Louis Comity Circuit Court. — Hon. Rudolph Hibzel, Judge. The plaintiff in a bill of interpleader must be a mere stakeholder, claiming no interest in the fund, and liable to be vexed by two or more suits in the name of different persons going on at the same time. Hathaway v. Foy, 40 Mo. 540; Glaser v. Priest, 20 Mo. App. 1.

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

Louis County Circuit Court. — Hon. Rudolph Hibzb'l, Judge. (1) Where a servant seeks to recover damages from Ms master for injuries received from the bursting of an emery wheel, and bases his right to recover on the ground that the master was guilty of negligence in not providing a safe wheel and in not guarding the same properly, evidence that there was a different kind of •emery wheel used in other departments of the master’s ■establishment is incompetent, immaterial and…

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

— Hon. E. M. Hughes, Judge. The provisions of sections 5120 and 5121 of the Revised Statutes of 1889 are not for the tenant but for the grantee or assignee. The defendant’s relation to the plaintiff is the same as before -the execution of the deed to Azdell.

<p>1. Witnesses: issue of subpcena. A justice of the peace has authority' under section 8927 of the Revised Statutes to issue a subpoena for the attendance of a witness at a trial in a court of record in his county.</p> <p>2. -: taxation of fees as costs. Á witness who voluntarily accepts service of a subpcena is entitled to his fees, as if the subpoena had been duly served upon him; but the taxation of the fees of a witness will be held erroneous in the absence of evidence that he attended the trial in pursuance of the service, or acceptance of service, of a subpcena.</p> <p>3. Practice, Appellate: presumption of official character. When a person appears on the face of the record to .have acted officially as a justice of the peace, it will be presumed, in the absence of evidence to the contrary, that he held that office at the time.</p>

Hon. R. E. Roy, Judge. (1) The defendant’s by-laws expressly define the powers and duties of the officers of the grand and subordinate camps or lodges, and the obligations of the individual members to the supreme grand camp and to the other members of the order, as well as the rights of each individual member. Mulroy v. Knights of Honor, 28 Mo. App. 468; Grand Lodge v. Elsin, 26 Mo. App. 109; Hysinger v. Supreme Lodge, 42 Mo.

— Hon. E. M. Hughes, Judge. (1) The proposition of defendant, not having been accepted by the plaintiff, never ripened into a contract between those parties. Robinson v. Railroad, 75 Mo. 494; Allen v. Chouteau, 102 Mo. 323; Robinson v. Tapley, 48 Mo. App. 239. (2) The special contract in evidence, supported, as it was, by a reduced rate, was valid.

<p>Attachments: appeal from judgment on plea in abatement. Under our existing law (Session Acts, 1891, p. 45) an appeal cannot be taken directly from the judgment on the plea in abatement in an action by attachment; the proceedings under such plea can now be reviewed only on an appeal from the final judgment in the cause.</p>

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

<p>Practice, Appellate: review of rulings of trial court. When no instruction is asked or given in an action at law, and there is nothing in the record to show that the trial court applied an erroneous theory of law to the evidence, and when the judgment of that court is sup- • ported by the evidence, an affirmance of that judgment on appeal necessarily results.</p>

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. ' (1)There is no evidence of criminal intent in this case; and there cannot be a conviction without it. State v. Obershaw, 11 Mo. App. 67; State v. Kempf 11 Mo. App. 33; State v. Zinn, 26 Mo. App. 37. In criminal cases the question is not as to the effect of the act done, but as to the animus which prompted its commission. State v.,Pitts, 58 Mo. 558.

<p>Criminal Law: information. It is not necessary to indorse the name of the prosecuting witness on an information for a misdemeanor filed before a justice of the peace; nor is the entry of the name of the prosecutor on the docket of the justice essential to the validity of the information.</p>

Charles Circuit Court. — Hon. E. M. Hughes, Judge. (1) A wife who has a separate personal estate in her husband's hands may, after his death, prove her claim and have it allowed against his estate in the probate court. Tocld v. Terry, 26 Mo. App. 598. (2) Plaintiff's instructions numbers 1 and 2 should have been given. Instruction or declaration number 1 for defendant is not the law.

<p>Appeal from the Butler Circuit Court. — Hon, John G-. Wear, Judge.</p>

<p>Jurisdiction, Appellate: transfer of causes to supreme court. When this court is in doubt as to whether a constitutional question is fairly raised by the record in a cause, its practice is to transfer the cause to the supreme court for disposition.</p>

— Hon. E. H. Field, Judge. The contract of a married woman, domiciled in Missouri, made in 1887, is void. “A married woman is wholly unable to make any contract which will bind her personally, or create against her a personal debt or •obligation.” Bachman v. Leiois, 27 Mo. App. 81; Hemel/reich v. Carlos, 24 Mo. App. 265; Alexander v. Lynch, 80 Mo. 341; Saulsbury v. Corwin, 40 Mo.

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

.Appeal from the Jackson Circuit Court. — Hon. J. H. Slover, Judge. (1) The. correct rule of damages in this case should, have been the reasonable expense of curing the horse of his injuries and the difference between the value of the horse before the injury and after the cure. Streettev. Laumier, 34 Mo. 469; Hoffman v. Railroad, 51 Mo. App. 273; Monroe v. Lattin, 25 Kan. 243; Gillett v. Railroad, 8 Allen, 560; Sedg. on Dam. [7 Ed.], notes-bottom of pages 315, 316.

— Hon. James G-ibson, Judge. A city attorney has power to appeal from a judgment against the city and to prepare the necessary steps for taking the appeal. Connett v. Chicago, 114 111.- 233; Mechem on Agency, sec. 812; Weeks on Attorneys, sec. 218. An attorney has power to get necessary briefs printed at his client’s expense. Williamson, etc., Paper Co. v. Bosbyshell, 14 Mo. App. 534; Mechem on Agency, sec. 812, p.-; Weeks on Attorneys, sec. 218.

— Hon. D. W. Shackleford, Judge. (1) The violation of a city ordinance is not a criminal offense within the meaning of the constitution, and the proceeding to recover a fine for such violation, therefore, is not necessarily by indictment or information in the name of the state. Fx parte Hallo-well, 74 Mo. 395; The City of St. Louis v. Vert, .84 Mo. 204; City of Kansas v. Ciarle, 68 Mo. 588; City of Marshall v. Standard, 24 Mo. App. 192.

— Hon. D. W. Shackleford, Judge. (1) The evidence, to warrant a recovery, should have been clear enough to raise a presumption at least that in some way or form Mrs. Stegner became possessed of property, money or some valuable thing belonging to the defendant in error, and that her statement was an acknowledgment of that fact, — this the court did not find. Griddle1 s Administrator v. Criddle, 21 Mo. 522.

— Hon. E. J. Broadus, Judge. STATEMENT. This is an action in replevin and involves the right and title to about $1,500 worth of cattle, horses, corn, hay, etc., once the property of Gfeorge Y. Nall, a Clay county farmer. The plaintiff’s claim was based un a chattel mortgage made by the said Nall, while the defendant asserted a right by virtue of the levy of an execution, which he as sheriff held on a judgment in favor'of F. M. Barnes.

_Appeal from the Lafayette Circuit Court. — Hon. Richabd Field, Judge. (1) If the agent’s authority is not under seal and •an instrument executed by him under seal is therefore void as a sealed instrument, yet, if the seal is unnecessary, it will be disregarded and the writing held to be valid as a simple contract, or a contract not under seal. Shtietse et al. v. Bailey et al., 40 Mo. 69, on page 75; JEinstein v. Holt, 52 Mo. 340.

-Appeal from the Saline Circuit Court. — Hon. Richabd Field, Judge. „ (1) The complaint does not state or show that the Teal estate defendant is… Held: that the power of amendment in proceedings appealed. from justices of the peace extends even to the supplying of jurisdictional defects.” Vaughan v. Railroad,. 17 Mo. App. 4, 8; Planing Mills Go. v. Ritter, 33 Mo. App. 404; Spencer v. Beasley, 48 Mo. App. 97; Mitchell v. Railroad, 82 Mo. 106,109; Henry v. Railroad, 44-Mo.

— Hon. D. P.. Stratton, Judge. (1) There is ho tfestimony in this ease showing-any act on the part of Judge Walker to dedicate this strip to the public but everything on the other hand, negatives the idea and shows that he laid out the town of' Everton and had it platted as shown by the plat, with this strip closed up by mark, showing it was not. the intention to leave it open. Baker v. Vanderberg,. 99 Mo. 378; Landusv.

— Hon. R. H. Field, Judge. (1) The controlling guide in construing a will is to ascertain the intention of the testator, which intention must be gathered from the “four corners” of the instrument. Turner v. Timberlake, 53 Mo. 371; Allison, v. Cheney, 63 Mo. 279; Beinders v. Koppelman, 94 Mo. 338; Peters v. Carr, 16 Mo. 56; Cheto v. Keller, 100 Mo. 362; Boev. Kern, 93 Mo. 367; Snydamv. Shayer, 94 Mo. 49; 2 Jarman on Wills, 154; Peakv. Jameson, 6 Mo.

— Hon. James Gibson, Judge. (1) Notice to a person is not notice to a city unless the person notified is an officer of that city. Elliott on Roads and Streets, p. 564, and cases cited; Dillon on Mun. Corp. [3 Ed.], sec., 1026, and cases cited; City of Denver v. Dean, 10 Ool. 375; 3 Am. St. Rep. 594. It is error to give an instruction upon a theory not jusfied by the evidence. There was no evidence of notice to a police officer of the city. Conway v. Railroad, 24 Mo.

— Hon. Gr. D. Burgess, Judge. The trial court should have sustained appellant’s motion in the nature of a plea in bar, and by refusing to do so and holding appellant for trial, committed manifest error. State v. Simonds, 3 Mo. 414; State v. Cowan, 29 Mo. 330; State v. Thornton, 37 Mo. 360. It is presumed as a matter of law that all who are charged with the administration or execution of the laws, from the humblest to the highest, discharge their duties in good faith.

— Hon. J. H. Slover, Judge. The question is whether the clause of the policy that a waiver of its provisions could only be made in writing, can not itself be waived by the company. The authorities are almost unanimous that the company can not so tie its own hands, and notwithstanding the company says it will waive only in writing, it is an injustice, after the company has waived in a different manner, to permit the company to profit by its own wrongdoing. Barnard v. Ins.

— Hon. James - Gibson, Judge. (1) The plaintiff should not have been permitted to recover at all in.this form of action. Plaintiff’s only remedy was in equity. Jackson v. Cunningham, 28 Mo. App. 354. Uaeussler v. Glass Co., 52 Mo. 452,453. Jones on Chattel Mortgages [3 Ed.],sec. 801, p. 715 and sec. 684, p. 619; Stoddard v. Denison, 38 How. (N. Y.) 296; Hungatev. Reynolds, 72111. 425; Peoplev. Wiltshire 9 Bradw.

— Hon. Samuel W. Moore, Judge. (1) Defendant not Paving pleaded or proven any such, license from Kansas City, be must be held the author and a continuer of a public nuisance in constructing and suffering to be continued the coal hole and vault in the sidewalk in question. Congreve v. Smith, 18 N. Y. 79; Wood on Nuisances, p. -277. The owner of property fronting on a. street has nó more' rights upon the highway than any stranger thereon.

— Hon. E. L. Scakkitt, Judge. . (1) Plaintiffs were not authorized under the statute to amend their statement in the circuit court so as to change their cause of action from the one embraced in the original account or statement. R. S. 1889, section 6347; Sturges v. Botts, 24 Mo. App. 282; Gregory v. Railroad,, 20 Mo. App. 448. (2) The tenancy was one from month to month, beginning on the first of one month and extending to the first of the following month.

— Hon. E. L. Scarritt, Judge. ■ (1) Court has power at a subsequent term, and it is its duty on motion of either party, to correct its judgment as to any error appearing on the face thereof. Turner v. Benoist, 50 Mo. 145; Nave v. Todd, 88 Mo. 601; Ball v. Bruere, 23 Mo. App. 604; Evans v. Fisher, 26 Mo. App. 541; St.Louis to use, etc., v. Allen, 53 Mo. 44; Revised Statutes, 1889, section 5974.

— Hon. J. H. Sloveb, Judge. (1) The court properly gave declaration of law number 3 in behalf of defendant, that under the charter of Kansas City it was the duty of the board of public works to apportion the cost 'of construction of sidewalk in question, and that this power could not be delegated. Appellant’s abstract of record (Vid.) p. 29; Charter, 1889, sec. 6, art. 9, p. 85. But the court erred in failing to find for defendant in pursuance of said declaration.

<p>1. Statutory Action to Quiet Title: sufficiency of defense. It is a sufficient defense to a statutory action to quiet title, that the defendant had, prior to the institution of the action, sued the plaintiff for the property in ejectment and had subsequently recovered judgment for possession.</p> <p>2. -: PRACTICE, appellate: review of faots. Smrible, that all actions triable by the court without the intervention of the jury, of which a statutory proceeding to quiet title is one, are reviewable on appeal upon the weight of the evidence.</p> <p>3. -: REQUISITE POSSESSION ON PART OF PLAINTIFF. A plaintiff can not maintain a statutory action to quiet the title to land, when he was not in the possession of the land either by actual occupancy, or by color of title and constructive possession, at the time of the institution of the proceeding.</p>

— Hon. W. D. Hubbard, Judge. (1) The evidence fails to show that the section foreman was defendant’s vice-principal. On the contrary, it shows that the work was done upon the orders .of the road master; and the section foreman was doing his share of the labor just as any other of the gang. It is not shown that he had authority to either employ or discharge the men; and, besides, the evidence shows positively that he had nothing to do with paying the men.

— Hon. W. D. Hubbard, Judge. ' The constitutional provisions relied upon by appellant as prohibiting a change in the grade of streets, and thereby preventing collection of the special tax assessment for improvements made on the grade as changed, when he can show the change of the grade to have damaged him more than the cost of improvement, have no reference whatever to special tax assessments for local improvements, but refer to the exercise of the right of eminent domain,…

— Hon. W. D. Hubbabd, Judge. (1) The court excluded the mortgage offered by the plaintiffs, because it appeared from the evidence aliunde that it was executed by Margaret Woods as a .surviving partner, and hence the evidence showed no authority in her to execute a mortgage on partnership property.

— Hon. J. T. Neville, Judge. The petition does not aver that defendant Hodnett, or any defendant, had any notice or knowledge whatever of the alleged mistake in the description of the land conveyed by Cuthburth to Dickerson in the deed of trust, which Dickerson seeks in this action to have corrected and declared prior to defendant’s title and all other incumbrances; and there is no evidence that defendant had any notice or knowledge of such alleged mistake prior to or at the…

<p>Error to the Ho%oell Circuit Court. — Hon. W. N. Evans,, Judge.</p>

— Hon. H. C. Riley, Judge. ‘ The cause must be reversed for the reason that the petition alleges that the animal was killed in Sylvania township, and shows that suit was instituted in More-land township, Scott county. , But it does not appear from the pleading, the record nor the evidence, that the two townships are adjoining. This has been the holding in a long line of decisions of this and the supreme court. Jones v. Bailroad, 52 Mo. App. 381; Jewett v. Bailroad, 38 Mo.

— Hon. W. N. Evans, Judge. The bill of lading in this case was illegible, and so printed that its special provisions were an imposition and fraud. When the condition in the receipt is fair and legible, it will not avail the plaintiff to show that he did not read or see it. In such case the law presumes that he knew its contents.

<p>Sales: rescission for fraud. In order to rescind a contract of sale on the gronnd that the sale was brought about by false and fraudulent representations by the vendee concerning his financial condition, the vendor must affirmatively show that the sale was made, partly at least, on a credit, and must return any consideration received by him therefor so as to place the vendee in statu quo.</p>

— Hon. W. N. Evans, Judge. (1J A railroad company has a right to make rules designating what freight trains running on its line shall carry passengers, and that persons intending to take passage on such freight trains must first procure tickets before entering the freight trains which are allowed by the rules of the company to carry passengers. 2 Wood’s Railway Law, sec. 351; 2 Beach on Law of Railways 861; Jones v. Railroad, 17 Mo.

<p>1. Instructions: curing of inaptitude of expression in one by another. It is always to be presumed that the jury, before making up their verdict, have read all the instructions given by the court; ,and an inaptitude of expression in one instruction is accordingly held to have been cured, since its meaning, when read in connection with another instruction, was not in doubt.</p> <p>'2. Inferential Proof: withdrawal of case from jury. When the evidence in an action of law will support either of two deductions, one of which establishes the liability of the defendant and the other . ' not, it is the province of the jury to determine which shall be made, and the case should, therefore, not be withdrawn from them.</p> <p>3.' Practice, Appellate: damages in actions for physical injuries. The amount of recovery in an action for personal injuries must be left largely to the discretion of the jury; nor should their verdict be disturbed, unless its amount is so large as to to shoekthe conscience of the court.</p>

<p>1. Agency: law and fact. Whether the evidence in a cause is sufficient to warrant the finding of an alleged agency, is a question of law for the court.</p> <p>2. Unrecorded Chattel Mortgage: effect of entry into possession by mortgagee. The omission of parties to record a chattel mortgage is cured by the entry of the mortgagee into the possession of the property before the accrual of an adverse right.</p> <p>3. Replevin: counsel fees as damages. Counsel fees and expenses incurred in the prosecution of an action of replevin cannot be recovered as a part of the damages in that action.</p>