Volume 57 — Missouri Appeal Reports

— Hon. H. O. Rilev, Judge. (1) The plaintiff: can not. avoid the effect of her warranty under her own contract by showing the presence of a soliciting agent; nor does the fact that he wrote the application relieve her. Lama v. Ins. Co., 51 Mo. App. 447; Mensing v. Ins, Co., 36 Mo. App. 602. (2) By her own testimony, she had not paid for the house and lot at the time of making application for the insurance, and had no deed.

— Hon. Alex. Ross, Jhdge. (1) An interplea is simply an action in replevin engrafted by statute on an attachment suit, and a complaint of the same nature. R. S. 1889, sec. 7479; Budget v. Borchert, 59 Mo. 85; Spooner v. Boss, 14 Mo, App. 599. (2) The verdict of the jury is irregular, and so defective that it should have been set aside by the court. The verdict finds the property.to belong to the interpleader, but fails to assess any value of the property.

<p>1. Mining: character of contract. A contract between a mining company and a miner, whereby the former permitted the latter to dig for mineral on certain of its property for a stipulated royalty, is considered and is treated as a lease, though it had no determinate period.</p> <p>2. Mechanics’ Liens: machinery for building. The fact that machinery, which is furnished for a building constructed for manufacturing purposes, is not attached to the freehold, or that it can be removed without injury to the building, will not prevent a mechanic’s lien from attaching therefor. The controlling question in such a case is whether the machinery was furnished and received with the intention of forming an integral part of the building.</p> <p>3. -: -. And held, that a mechanic’s lien attached for such machinery in this cause, wherein it and the building were constructed simultaneously and for each other, and neither could be removed without' great injury to the other.</p> <p>4. -: lumping charge. When work is done and materials are - furnished under a contract at a fixed price for the whole thereof as an entirety, a lumping charge may be made therefor in an account filed as a mechanic’s lien.</p> <p>5. -: description of property. A mechanic’s lien account sufficiently describes the premises subjected to the lien, if a person acquainted with the locality is enabled thereby to locate them.</p>

— Hon. James T. Neville, Judge. It is elementary law that, as between mortgagor and mortgagee, a deed. absolute on its face can be shown to be a mortgage. But this law does not apply as to creditors; for creditors look only to the record and can be required to look only to it. State to use v. Koch, 40 Mo. App. 235. (1) A garnishing creditor has no greater right than his debtor had to the funds alleged to be in the hands of a garnishee.

— Hon. J. T. Neville, Judge. (1) It is no objection to this lien that the lien account filed did not state a separate price for each separate article. The lien account filed does state the separate items, but gives only the lumping price. This is proper, right and l,egal where, the contract is made for various articles furnished under one contract for a lumping price. Deardoff v. Roy, 50 Mo. App. 70; Grace v. Nesbit, 109 Mo. 9.

<p>Attachment: appeal prom judgment on plea in abatement. Under the act of February 25, 1891, which is now in force, a plaintiff can not appeal directly from an adverse judgment on the plea in abatement in a suit by attachment, but must delay until the final judgment in the cause on the merits.</p>

— Hon. J. T. Neville, Judge. . It is well settled that an agreement by a mortgagor to insure for the benefit of his mortgagee gives the latter an equitable lien upon the proceeds of a policy taken out by the former and embraced in the agreement.

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

— Hon. James T. Neville, Judge. A voluntary conveyance made by a debtor in embarrassed circumstances, though without any specific intent to defraud, is fraudulent in law as to all who were creditors at the time of the execution of the conveyance, and whose debts remain unpaid and incapable of collection in the ordinary course of proceedings.Hurley v. Taylor, 78 Mo. 238; Buck v. Moore, 36 Mo. App. 535; Boatman’s Savings Bank v. Overall, 16 Mo.

— Hon. James T. Neville, Judge. Where a note is secured by a mortgage or deed of trust, and the holder of it, either by fraud or disregard of the debtor, sacrifices the security, such facts may be shown against an action on the note for the balance, and damages may be allowed by way of counterclaim, or the note may be canceled in equity.

— Hon. J. T. Neville, Judge. The defendant made the statutory claim in writing verified by affidavit, as prescribed by section 6311 of the Revised Statutes of 1889. The constable thereupon demanded of plaintiffs the execution of an indemnity bond. This was executed by plaintiffs, delivered to the constable and by him approved as solvent, and returned to the justice and. attached to the files. This constitutes an election, and the remedy of defendant is upon the bond.

<p>1. Contracts: absolute refusal to perform. Where a party to a contract forbids its performance by the other, or interferes with its performance by the other to an extent which amounts to a refusal of performance, the party thus interfered with may recover as if he had performed his contract.</p> <p>2. -: EVIDENCE OF QUALITY of material. The fact that a box is marked as containing material of a certain quality is not evidence that material taken out of the box is of that quality.</p>

<p>Promissory Notes: effect of usury on negotiability. Thé fact that a promissory note on its face bears a usurious rate of interest, does not render it nonnegotiable.</p>

<p>Dramshop Law: sale op intoxicants to minor. The dramshop law provides for a penalty for every sale of intoxicating liquor by a. "dramshop keeper, or any other person” to a minor without the written, permission of the parent, master or guardian, of the latter. Selcl, that the penalty could he recovered -only from a dramshop keeper, it being evident from the context that such was the intent of the legislature, and that the words “or any other person” were intended to apply only to a person representing the dramshop keeper or temporarily in charge of his business.</p>

<p>1. Administration: appointment of administrator. The appointment of a stranger as administrator of the estate of a decedent, though made without the issue of any citation, will he upheld, if it is made more than thirty days after the death of the decedent, and if all persons, who at the time have the statutory right and qualification to administer, have duly renounced their right to letters.</p> <p>2. -: practice appellate: when motion for new trial is not Neoessart. When an appeal is taken from an order for the removal of an administrator upon motion therefor, and it appears upon the face of the motion itself that the order is unwarranted, the failure of the appellant to file a motion for new trial in the trial court is immaterial.</p>

<p>Appeal from the Greene .Circuit Court. — Hon. J. T. Neville, Judge.</p>

— Hon. R. P. Roy, Judge. (1) The law under which Buchannan was appointed had not been repealed. See Session Acts of Missouri for 1881, page 151. In 1887 (Acts for that year, page- 206) the legislature amended section number 2803 of statute of 1879, page 471, entirely ignoring the act of 1881, supra. At the revising session in 1889 the act of 1887, supra, was amended and placed in the statute as section number 6090, page 1,448.

<p>1. Practice, Appellate: statutory abstract of record. An abstract of the record, filed under section 2253 of tbe Revised Statutes in lieu of a complete transcript, need not affirmatively show that the motion of the appellant for a new trial was embodied in Ms bill of exceptions.</p> <p>2. Contract: action by party in default. A party can not maintain an action on a contract, when he himself is the first to violate it by withholding its reasonable benefits from the other contracting party.</p>

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

<p>Appeal from the Barry Circuit Court. — Hon. J. C. Lamson, Judge.</p> <p>The appellant failed to except to the action of the trial court in overruling his motion for a new trial. This being the ease, the judgment will be affirmed, if the verdict is supported by the pleadings. Mclrvine v. Thompson, 81 Mo. 647. In such cases the record proper will only be examined. Jackson v. Railroad, 80 Mo. 147; Coivan v. Railroad, 80 Mo. 423; Carpenter v. Railroad, 80 Mo. 446.</p>

— Hon. John Gr. Wean, Judge. The court erred in sustaining the demurrer. Kane v. Daucrnheim, 51 Mo. App. 635. The complaint is sufficient. It alleges that defendant’s term ended at a time certain, and no demand was necessary. R. S. 1889, sec. 5089; Witte v. Quinn, 38 Mo. App. 681; Kydev. Goldsby, 25 Mo. App. 29; Silvey v. Summer, 61 Mo. 253.

— Hon. Arous Cox, Judge. There is no evidence that the alleged negligence of the defendant was the cause of the injury sued for. Perkins v. Railroad, 103 Mo. 52; Hudson v. Railroad, 101 Mo. 31; Broion v. Railroad, 20 Mo. App. 222; Railroad v. Frick, 11 Atl. Rep. 627; Beal v. Athens, 81 Mich. 536; People v. Rockwell, 39 Mich. 503; Smith v. County Court, 11 S. E. Rep. 1.

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

— Hon. H. C. O’Bbyan, Judge. (1) It was error for the trial court to refuse instruction number 5, which declared that the plaintiff was entitled to recover, if he purchased the notes in suit before maturity and in good faith and without any knowledge of the facts pleaded by way of defense in the answer of the defendants. Mayes v. Bobinson, 93 Mo. 114, 122; Hamilton v. Marks, 63 Mo. 167; Johnson v. McMurray, 72 Mo. 278.

<p>Appeal from the Newton Circuit Court. — Hon. M. G. McGregor, Judge.</p>

<p>1. Practice, Trial: preservation by motion por new trial of exceptions to rulings on evidence. An exception to tlie reception of evidence will be preserved by a general allegation in tlie motion for new trial that the court admitted illegal evidence; it is not necessary to specifically point out in the motion the evidence in question.</p> <p>2. Instructions: presentation before argument. The trial court has the right to insist that all instructions should be presented at the close of the evidence and before argument to the jury begins.</p> <p>3. Husband and Wife: title to chattels purchased by former. It does not follow that, because a husband purchased a chattel for the use of his family, the title'thereto is in the members of the family; nor will title in the wife, as against her husband, necessarily result from the fact that he purchased a chattel for her use.</p> <p>4. Married Women: gifts. The written assent of a married woman is not necessary to the validity of a gift of personalty, made by her and her husband jointly, to their child.</p>

— Hon. R. F. Roy. Judge. (1) Defendant was entitled to a verdict on tbe pleadings. The petition predicates plaintiff’s right to recover upon the common law liability of defendant as an insurer and not upon the ground of negligence. The answer sets up a special contract, which constitutes a valid defense to the cause of action alleged in the petition. The reply admits the contract, simply denying that it is binding upon plaintiffs.

— Hon. John Gh 'Weak, Judge. (1) The statement filed was too indefinite and uncertain to constitute a cause of action, and not sufficient to apprise the defendant of what he was charged with, or to bar another action for the same cause. It states no cause of action. Rosenberg v. Boyd, 14 Mo. App. 429; Hill v. St. Louis, etc., Co., 90 Mo. 104; Nutter v. Houston, 32 Mo. App. 452.

— Hon. James H. Lay, Judge. (1) At the conclusion of the whole case, the court should have sustained defendant’s demurrer to the evidence for the following reasons: First. Plaintiff assumed the risk incident to his position, since it was more dangerous than that regularly provided for passengers, and since he took it, not from necessity, or at the request of defendant, but. for his own pleasure. Carroll v. Railroad, 107 Mo. 653; Tuley v. Railroad, 41 Mo.

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

<p>Appeal from the Stone Circuit Court. — Hon. Jos. Cravens, Judge.</p>

Hon. Alex. Ross, Judge, (1) The appellants safely transported the goods in question to Cape Girardeau several days before the fire, and they, not being called for by respondent, were stored in a reasonably safe warehouse.

— Hon. H. C. Eiley, Judge. (1) Instruction number 1 authorized a verdict regardless of the question of endangering, hindering or delaying the collection of the rent, and for that reason is clearly erroneous. Haseltine v. Aushermcm, 29 Mo. App. 451.

— Hon. J. C. Lamson, Judge. It was for the board of aldermen to determine from extrinsic evidence whether or not the petition was signed by the assessed taxpaying citizens of the block, and not from any allegation or showing the petitioner for license might make. State v. Searcy, 39 Mo. App. 400; Biggins v. Brien, 34 Mo. App. 613; Snoddy v. Pettis County, 45 Mo. 361; State v. Macldn, 51 Mo. App. 309; State v. Evans, 83 Mo. 319, 321, 322; State v. Benfrow, 111 Mo. 589.

Louis City Circuit Court. — Hon. Daniel D. Eisher, Judge. Section 49 of article 4 of the charter was never intended to give the commissioners power to arbitrarily remove the superintendents of the city hospital, female hospital, insane asylum and all their assistants, contrary to the wishes of the mayor and council, and the health commissioner and the board of health. Yet the construction of this section contended for by the respondent would give them such power.

<p>Appeal from the Shelby Circuit Court. — Hon. Andrew Ellison, Judge.</p>

<p>1. Practice, Appellate: trial without instructions or exceptions to rulings on EVIDENCE. When no instructions are asked or given in an action at law and no exceptions are preserved to ruliugs on the evidence, the judgment must be affirmed on appeal, if it can be sustained upon any theory of la-w applicable to the facts developed on the trial.</p> <p>2. Garnishment: funds payable to dependant conditionally. In ■ the absence of fraud, a garnishing creditor occupies no better position towards the garnishee than does the defendant. Accordingly, funds of the defendant in’his hands, which are held by him as an indemnity against an outstanding claim, are not subject to garnishment.</p> <p>3. -: allowance to garnishee in this court. On proper motion by a garnishee this court will, in affirming a judgment in his favor, make an allowance to him for outlays and counsel fe.es growing out of the appeal.</p>

<p>Error to the'St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.</p>

— Hon. Budolph Hiezel, Judge. Upon the death of Louise Wacker, the mother of plaintiff’s wards, the property passed to the administrator of said Louise, unless an order had been made by the probate court of Gasconade county, that no letters of administration should issue, as provided by section 2, chapter 1 of the Revised Statutes of 1889. Griswold v. Mattix, 21 Mo. App. 282; Helman v. Wellenkamp, 71 Mo. 407; Smith v. Benny, 37 Mo. 20.

— Hon. W. W. ■ Rucker, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. It does not allege defendant’s servants in charge of the train saw the mare upon the track, nor that, after seeing the mare upon the track, they,could have stopped the train and have averted the injury by the exercise of proper care. Waldheir v. Railroad, 7Í Mo. 514, 516, 517; Current v. Railroad, 62 Mo. App. 65; Jewett v. Railroad, 38 Mo.

— Hon. Gr. D. Burgess, Judge. The defendant’s fourth instruction, that the plaintiffs were not entitled to recovery, ought to have been given. 2 Greenl. on Evidence, sec. 613; Baker ■ v. Railroad, 52 Mo. App. 602, 607; Deland v. Vanstone, 26 Mo. App. 297; Ireland v. Horseman, 65 Mo. 513; Brown v. Hartnell, 87 Mo. 564; Pope v. Cordell, 47 Mo. 251, 252; Brown v. Carter, 52 Mo. 46,48; Morev. Perry, 61 Mo. 174.

— Hon. ~W. W. Rucker, Judge. (1) Section 6186, Revised Statutes, 1889, governing practice in justice courts in cases where defendant in replevin gives bond and retains the property, is mandatory.

— Hon. Andrew Ellison, Judge. The circuit court had jurisdiction of the cause both as to the parties and the subject-matter in controversy, and therefore erred in sustaining plaintiffs motion for new trial and his motion in arrest of judgment, and then, after the defendant, by leave of the court, had filed an amended affidavit for appeal, strictly complying with the provisions of the present statute, on plaintiff’s oral motion, dismissing the appeal. Welsh v. Railroad, 55 Mo.

— Hon. D. P. Stratton, Judge. (1) “The question is, shall the interpleader recover? And such recovery must be by affirmatively showing that he is entitled to the property.” 'Boiler v. Cohen, 42 Mo. App. 97-99. (2) The contract introduced was executory and not executed; evidenced an agreement to sell and not a sale. If Groodley had refused to carry out the contract, interpleader could not have replevied the goods. Its remedy would have been damages for violation of a contract.

— Hon. Henby M. Eamey, Judge. Section two of said ordinance provides, “that said alley between the east line of Third street and the west line of Fourth street be graded in accordance with said specifications on file at the office of the city engineer.” The specifications are, therefore, a part of the ordinancé. Galbreath v. Newton, 30 Mo. App. 392; Gallaher v. Smith, Mo. Legal News, No. 7, Yol. 3, (date, December 23, 1893,) p. 86; Becher v. City of Washington, 94 Mo. 375.

— Hon. Chas. H. S. Goodman, Judge. (1) As to the said McDonald indebtedness, at the time he took possession, Low was both the trustee in the deed of trust and the owner of said indebtedness, trustee and cestui que trust, and that indebtedness -was the first preferred claim in said deed, and the first to be' paid out of the money arising from the sale of said goods and when he took possession of said stock of goods under said deed of trust he took both as trustee and cestui…

— Hon, R. H. Field, Judge. (1) A telegraph company is not liable for a failure to transmit a message when its line is not in working order and the transmission is thereby prevented, if the message was taken in good faith and without any knowledge of such condition of the line on the part of the company’s agents.

— Hon. D. P. Stratton, Judge. (1) The trial court ought to instruct peremptorily, unless there is substantial evidence to go to the jury. Bankv. Moorman, 38 Mo., App. 484. (2) The appellate court will examine the evidence and reverse, where the verdict is so grossly against the evidence as to indicate prejudice or ignorance or mistake. Walton v. Railroad, 49 Mo. App. 620.

— Hon. C. A. Anthony, Judge. (1) The land was sold to Anna A. Holt, January-21, 1892. The previous conversations were merged into the deed made by plaintiff. There were no reservations in the deed of any growing crop. There was no sale of the land to defendant, or of any growing crop. The deed is the evidence of the contract, and conclusively presumed to include the whole contract; no fraud, mistake, or accident is alleged. Wood v. Murphy, 47 Mo.

— Hon. W. W. Wood,'Judge. (1) Plaintiffs, as securities, have no standing in a court of equity and can not maintain this action, which is a suit in equity, without first having recovered judgment, and having exhausted their legal remedies, or without being subrogated to the rights of those who have recovered such judgment and exhausted their legal remedies against the principal and his property.

JError to the Morgan Circuit Court. — Hon. D. W. Shackleford, Judge. The trial court committed error in overruling the demurrer. The fact, that the defendant in error signed the note “after it became due” and without any “consideration whatever” was an alteration of the note and discharged plaintiffs in error from all liability thereon.

— Hon. D. W. Shackleford, Judge. (1) The stock law — i. e., the one restraining the running at large of cattle, hogs, etc., in Cole county— applies only to highways, and does not relate to tho interior economy or arrangement of farming lands. O’Riley v. Diss, 41 Mo. App. 184; Shepherd v. Hess, 12 Johnson (N. Y.), 433; Cook v. Morea, 33 Ind. 497.

<p>1. Common Law: Michigan. In the absence of proof as to the statute law of Michigan, the courts of Missouri must assume the existence there of the common law.</p> <p>2. Fraudulent Conveyances: common law: statute. At common law, as under the statute, where the mortgagor of personal property is by its terms allowed to retain possession of the property and dispose of the same as he may think proper, such conveyance will be deemed for the use and benefit of the mortgagor and void as to creditors.</p>

<p>Appellate, Practice: when, affirmance. When the evidence would support a verdict for either party and the instructions clearly and fairly state the issues to the jury, the appellate court will affirm.</p>

— Hon. Riohaed Field, Judge. ■ (1) The court erred in permitting defendant to prove that there was a less number of acres than sixty in the fields. The contract is for the sale and delivery of a certain crop of corn — less forty barrels 'reserved by plaintiffs for their own use. There is no agreement to sell by the barrel or by the acre, and no agreement to survey or have it surveyed. Boxley v. Stevens, 31 Mo. 203.

— Hon. Andrew Ellison, Judge. (1) Instruction number 3 given for plaintiff was erroneous in that it assumed as true matters that were put in issue both by the pleadings and by the evidence. Maxwell v. Railroad, 85 Mo. 96; Ins. Co. v. St. Mary’s Seminary, 52 Mo. 480; Moffat v. Conklin, So Mo. 453; State v. Wheeler, 79 Mo. 366; Turner v. Loler, 34 Mo. 461; Thompson v. Botts, 8 Mo. 710; Matthaus v. Bailroacl, 26 Mo. App. 75; Thompson on Trials, sec. 2295.

— Hon. Wm. S. Herndon, Judge. (1) The board of aldermen of the city of Cameron had no power, by ordinance, to prohibit tippling houses or the sale of liquors; for municipal corporations have • none of the elements of sovereignty, and can not go beyond the powers granted them, and must exercise such granted powers in a reasonable manner (Corrigan v. Gage, 68 Mo. 544; City of St. Louis v. Webster, 44 Mo. 550); and when a power is claimed by a city it must be held not to exist,…

— Hon. E. J. Beoadus, Judge. (1) The judgment and finding of the court was erroneous in law, and outside of the only issue in the case. The only issue was, whether the property claimed was the property of the interpleader or not, and the finding and judgment must be responsive to that issue. It was erroneous for the court to render a money judgment against the plaintiff. The entire judgment was wrong. Nolan v. 'Deutsch, 23 Mo. App. 1; Heivsonv.

— Hon. Richard Field, Judge. STATEMENT. This aecideut happened in Kansas City near the crossing of Holmes and Twentieth streets. At that point Holmes street runs north and south, and has on it a double track cable railroad, owned and operated by the appellant herein, the (Grand Avenue Railway Company, and on Twentieth street there were the tracks of the Kansas City Belt Railway Company, used for operating steam cars thereon.

— Hon. W. W. Rucker, Judge. (1) The petition on its face shows that plaintiff claims an undivided one-sixth interest in a crop of corn standing, growing and being on seventy acres of land on farm of defendant, hence this form of action will not lie and the demurrer to the petition should have been sustained. Jones v. Dodge, 61 Mo. 369, and cases cited; Kaufmann v. Schilling, 58 Mo. 218 (distinguished); Lindsay v. Phelps, 71 Mo. 522; Pulliam v. Burlingame, 81 Mo. 114, 115.

— Hon. John A. Hookaday, Judge. (1) The court erred in giving plaintiffs’ instruction number 1. The evidence nowhere shows that plaintiffs tendered to defendant sixty-three cents per hundred on twenty.thousand pounds on the arrival of the mules at Cedar City; on the contrary, the evidence shows that the tender was made on the next day after a feed bill of $10.20 had accrued.

— Hon. Paeis C. Stepp, Judge. (1) The court erred in giving plaintiff’s second instruction, [for the reason that there was neither allegation nor proof of plaintiff’s “loss of time” nor of the value of'his time. Jesse v. Shuck, 12 8. W. Rep. (Ky.) 304; Leeds v. Railroad, 90 N. Y. 26^ Stoal v. Railroad, 31 Am. and Eng. R. R. Cases, 21; Crotoley v. Railroad, 24 Mo. App. 119-123; Campbell v. Alston, 23 S. W. Rep. 33; Rhodes v. City of Nevada, 47 Mo.

— Hon. Paris C. Stepp, Judge. (1) The court,' at the conclusion of the evidence, should have given defendant’s instruction in the nature of a demurrer to the evidence. The plaintiff’s own evidence shows that the loss, if any, occurred by reason of one of the excepted perils mentioned in the contract of shipment; and there being no evidence of any negligence on the part of defendant, plaintiff can not recover.

— Hon. Richard Field, Judge. (1) The court erred in permitting the written contract to be read in evidence under the plaintiff’s amended petition.

— Hon. Jno. A.* Hockaday, Judge. (1) The trial court' erred in finding Grussie Y. Hoekensmith entitled, as distributee, to the $550 as property received from her by her husband, Joseph Hoekensmith. At common law, marriage vested in the husband the personal property of the wife then owned or thereafter acquired by her and of which he obtained possession. White v. Clashy, 101 Mo. 162.

Lotiis City Circuit Court. — Hon. Daniel Dillon, Judge. Appellant had paid all he was legally liable for, i. e., his share of the cost of reconstructing that part of the street between' Leffingwell and Compton avenues where the improved street is of uniform width. Appellant’s ■ property within the meaning of the city charter is “adjoining” property only to that extent. City Charter, art. 6, sec. 18 (Revised Statutes 1889, p. 2123); Kemper v. King, 11 Mo.

Louis City Circuit Court. — Hon. James E. Witheow, Judge. In order that a foreign construction of a statute adopted in this state should prevail, our statute must be a literal and precise copy of the statute construed. SJcouten v. Wood, 57 Mo. 380; West v. McMullen, 112 Mo. 411; Skrainka v. Allen, 76 Mo. 384. The Missouri statute is not identical in form or spirit with the Pennsylvania statute construed by the Pennsylvania court.

<p>Appeal from the Warren Circuit Court. — Hon. W. W. Edwaeds, Judge.</p> <p>(1) The court erred in sustaining the motion. A motion to vacate a levy and sale under execution is not the proper proceeding to try the debtor’s claim, that the property sold is exempt .from execution. State ex rel. v. Bierwirth, 47 Mo. App. 551. This duty devolves upon the sheriff, who is invested with sufficient power to give efficacy to the law’s bounty. State ex rel. v. Baracla, 57 Mo. 562; State ex rel. v. Barnett, 96 Mo. 133; Stale v. Harrington, 33 Mo. App. 476. (2) The defendant Craig was not entitled to notice under section 4943-of the Revised Statutes of 1889. This provision only applies in cases where land is situate in a different-county from that in which the judgment is rendered.. It is immaterial where the defendant resides. He-knows there is a judgment, and he must know the consequences. Lohmannv. Stoclce, 94 Mo. 672; Harris v. Chouteau, 37 Mo. .165; Btichananv. Atchison, 39 Mo.. 503; Harper v. Hopper, 42 Mo. 124.</p> <p>(1) There is no better settled question in this state,, than that the courts have control of their process and the officer in charge of such process. The court undoubtedly had control of the officers and the process-in this case. Philips v. Evans, 64 Mo. 17; Pratte v, Canfield, 67 Mr. 48; Glenden v. Harrington, 33 Mo. App. 476. (2) It was the plain duty of the officer to-notify the defendant of his right of exemption and election. This he did not do, and the court interfered to prevent the abuse of its process, and to protect the-defendant in his rights; and it committed no error in so doing. Paddock v. Lance, 94 Mo. 285; State ex rel, v. Barnett, 96 Mo. 133; Garrett v. Farmer, 21 Mo. 160; State ex rel. v. Beamer, 73 Mo. 37; Honibs v. Gorlin, 20-Mo. Ápp. 505; State ex rel. v. Bierwirth, 47 Mo. App. 551.</p>

<p>1. Practice Appellate: exclusion of cumulative evidence. The general mle is that a judgment -will not be reversed because of the exclusion of cumulative evidence. But the proper application of this rule depends upon the peculiar circumstances of each case, and the nature of the issue to which the evidence is adduced. And held, that the exclusion of such evidence constituted prejudicial error under the facts of this ease.</p> <p>2. -: effect of rulings on former appeal. The instructions in ' a cause are not open to review upon a second appeal to this'court, if they are in accordance with the law as declared on the first appeal.</p>

<p>1. Covenants: when dependent. When mutual covenants in a contract go to the entire consideration, ’they are dependent.</p> <p>2. Pleading: departure: practice, appellate. The plaintiff sued upon a contract, which, as pleaded in his petition, obligated him to furnish a certain abstract of title as a condition to his right of recovery. His reply denied this obligation,’ and averred an agreement by the defendant as part of the contract, foregoing the right to the abstract. Held, that this was a departure, and that this averment should be disregarded by this court on ax>peal by the plaintiff from an adverse judgment.</p> <p>3. Practice, Appellate: determination of cause on theory of TRIAL. An appellant can not in this court shift the theory of his action, and claim the right to recover on a ground which is inconsistent with that upon which he proceeded in the trial court.</p> <p>A. Law and Fact: reasonable time. What is a reasonable time is ordinarily a question of fact. But held that, under the facts of this case, it was one of law.</p>

Louis City Circuit Court. — Hon. Daniel D. Eisher, Judge. To constitute .waiver, the same must be made upon full knowledge of facts. Edwards on Bills, sec. 870; Story on Promissory Notes, secs.-274, 361, 362; Faulkner v. Faulkner, 73 Mo. 337. They must evince an intention to waive.. Bank v. McGuire, 33 Ohio St. 295. The intention must be clear and unequivocal.

Louis City Circuit Court. — Hon. Jacob . . Klein, Judge. (1) A court of equity will grant relief to a person injured by a judgment, where the person injured was prevented from using evidence at the trial without any fault of himself or his agent, and, if it had been admitted, the result might have been different.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The true rule is that death will be presumed from an unexplained absence of seven years, only when the following facts are proved (unless the person when last heard from was shown to have been in contact with a great peril rendering continuation of life improbable) : First. The departure must have been from the last known domicile (if not from the country or state) for temporary purposes with the intention of returning.

<p>1. Street Railways: inference of negligence from physical facts. A street railway ear Rad on its platform a threaded bolt, which, extended three-eighths of an inch above the floor. Held, that the jury were authorized to find from the physical facts, and without direct proof, that the bolt was dangerous and a matter which could have been remedied by the exercise of ordinary care.</p> <p>2. -: INSTRUCTION ON MEASURE OF DAMAGES. An instruction in an action for physical injuries directed the jury, in assessing damages, to include compensation for bodily pain and mental anguish, for loss of earnings, and for outlays and expenses incurred for surgical and medical treatment, drugs and medicines. Held, that the instruction was in correct form.</p> <p>3. --r: instructions on right OF recovery. Instructions defining the conditions of the plaintiff’s right of recovery in an action for injuries received by her, while alighting from a street railway ear, by reason of its negligent construction, are reviewed and held unobjectionable.</p> <p>4. -: FAILURE OF INSTRUCTION TO LIMIT RECOVERY TO DAMAGES pleaded: practice, appellate. A defendant permitted proof of damages slightly in excess of the amount pleaded, without intei'posing any objection thereto. Held, that he was not in a position, on appeal, to complain of the failure of an instruction on the measure of damages to limit the recovery to the amount pleaded.</p>

<p>1. Practice, Appellate: res adjudicata. When there is no substantial difference in the evidence, the ruling of this court on an instruction establishes the law for the subsequent retrial of the cause.</p> <p>2. Contracts: liability fob plans pob buildings. If a person contracts with a builder for plans for a building of a specified cost, and the building for which the plans are prepared will cost largely in excess of the limit, he is not liable for the contract price of the plans.</p> <p>3. Instruction Covering Entire Case: disregard op adverse claims. An instruction covering the whole ease must be so framed as not to exclude the consideration of the evidence of the adverse party.</p>

<p>Appeal from the St. Louis City Circuit Court. — Host. Daniel D. Fisher, Judge.</p> <p>(1) The evidence, is insufficient to warrant a recovery. Austin v. Ober, 26 Mo. App. 665; McBeth v. Craddock, 28 Mo. App. 380; Fenwick v. Bowling 50 Mo. App. 521; Hodges v. Terry, 28 Mo. 103; Peers v. Davis, 29 Mo. 184; Dulaney v. Rodgers, 64 Mo. 201; Caldwell v. Henry, 76 Mo. 260; Jones v. Railroad, 79 Mo. 92; Walsh v. Morse, 80 Mo. 568. The action of deceit requires the clearest proof to sustain it. Holland v. Anderson, 38 Mo. 89; Langdonv. Green, 49 Mo. 363. (2) The court erred in fixing the measure of damages in plaintiff’s instruction number 1. Defendant’s instruction number 3, under all the facts and circumstances of the case, should have been given. "When the testimony is clear and conclusive, an instruction may assume the facts sworn to. Fields v. Railroad, 80 Mo. 206; Mauerman v. Siemerts, 71 Mo. 105; Barr v:Armstrong, 56 Mo. 377.</p> <p>The fact that Manter omitted to make inquiry or examine into the representations of Truesdale, will not relieve Truesdale of liability for any false ' representations made by him concerning the subject of the sale. Caldwell v. Henry, 76 Mo. 254; Union Nat. Bank v. Hunt, 76 Mo. 444; Wannell v. Kern, 57 Mo. 478; McBeth v. Craddock, 28 Mo. App. 392.</p>

<p>Appeals from St. Louis Criminal Court. — Hon. H. L. Edmunds, Judge.</p>

<p>1. Mechanics’ Liens: judsment in justice’s court. When a judgment for the enforcement of a mechanic’s lien is rendered in a justice’s court on constructive service, it must be against the property against which the lien was filed, and it must accurately describe that property.</p> <p>2. -: —;-■. A mechanic’s lien was filed against lot 59 of part of Taylor Place, in the city of St. Louis. The judgment was against part of lot 59 of Taylor Place, and it failed to describe any part, giving merely the boundaries of the whole lot. Held, that the judgment was void, for failure to comply with either of said statutory requirements, and that an execution issued on it out of the circuit court should be quashed on motion.</p>

Appeal 'from the Clark Circuit Court. — Hon. Ben. E. Turner, Judge. Where, as here, the undisputed testimony is that the point where the animal went upon the track could not be fenced without endangering the lives and limbs of employees in the transaction of the company’s business at the station, the law imposes no duty upon the defendant to erect a fence, and the defendant is not liable for an injury to stock occurring at such a place, without actual negligence.

— Hon. D. P. Stratton, Judge. ' (1) Evidence of payment (or performance) is not admissible under a general denial. McKyring v. Bull, 16 N. Y. 297; WilTcerson v. Farnham, 82 Mo. 672, loe. cit. 678. (2) If tben defendant is precluded by Ms answer from proving payment, nonpayment stands admitted. 18 Am. and Eng. Encyclopedia of Law, p. 253, note 1; Wolf v. Rail, 62 Ala.124.

— Hon. D. P. Stratton, Judge. The real question is, for whose use and information was it prepared and did the defendant understand that he was preparing it for the use of the plaintiff? Of this there can be no doubt as all the witnesses agree on this point.

— Hon. D. P. Stratton, Judge. (1) There was no consideration for the bond in suit. The pretended consideration was entirely a thing of the past. This was a collateral undertaking, subsequent to the creation of the liability, and can not. be upheld, there having been no further consideration shown. Ring v. Kelly et al., 10 Mo. App. 411; Pfeiffer v. Kingsland, 25 Mo. 66; Leonard v. Vredenbwgh, 8. Johns. 29, 39; Howard v. Jones, 10 Mo.

— Hon. D. P. Stratton, Judge. (1) All that part of plaintiff’s testimony, as well, that of Ms witnesses as to what effect the getting heated and worried, etc., would have upon a lot of beef cattle was irrelevant, incompetent, intangible, speculative and wholly chimerical, and was but the expression of the opinion of the witnesses, on a matter not the subject of expert testimony. Belch v.- Railroad, 18 Mo. App. 80; White v. Stoner, 18 Mo. App. 540; Walton v. Railroad, 40 Mo.

— Hon. Argus Cox, Judge. The statute is so explicit as to need no construction. Its words are that the unlawful detainer is not committed until a written demand is made for possession. And yet the court instructed the jury that the unlawful detainer was committed from the time the defendant took possession, although demand for possession was not made till nearly two months afterward.

— Hon.’ D. W. Shackleford, Judge. (1) “It is a principle universally declared and admitted that a municipal corporation can levy no taxes, general or special, upon the inhabitants or their property, unless the power is plainly and unmistakably conferred.” 2 Dillon, Mun. Oorp. [4 Ed.], sec. 763. (2) And a city can exercise its powers only in the manner prescribed by the creating act. Rumsey v. Schell City, 21 Mo. App. 175; Thrush v. Cameron, 21 Mo.

, — Hon. G-. D. Burgess, Judge. (1) His hedge was twelve years old before the act of March 16, 1881, requiring hedges to be 'cut, was passed. This act is not in terms retroactive and can not be applied to this hedge without Violence to all settled rules of construction. State v. Grant, 79 Mo. 114-117; State v. Ferguson, 62 Mo. 77; State v. Hayes, 52 Mo. 578-580; State v. Green, 78 Mo. 188-190.

— Hon. Paris C. Stepp, Judge. (1) The first instruction given for the state is erroneous for two reasons: First. It omits a constituent part of the offense, in that it does not require the acts to be done in such manner as to terrify or disturb others. R. S. 1889, p. 900, sec. 3760. Second.

— Hon. Dan’l P. Stratton, Judge. (1) The power of municipal corporations to erect and maintain public scales, as a police and market regulation, is declared and upheld by all the courts and authorities which have had occasion to consider the question. 1 Dillon’s Municipal Corporations [4 Ed.], see. 391, p. 464; Cooley’s Constitutional Limitations-[6 Ed.], page 744; Raleigh v. Sorrell, 1 Jones’ Law, (N. C.) 49 ;• Stokes v. Corporation of New York, 14 Wend. 87; Yates v.…

<p>Appeal from the Barton Circuit Court. — Hon. D. P. Stratton, Judge.</p>

— IIon. Argus Cox, Judge. , (1) This cause will have to be reversed and not remanded, for the reason that the circuit court nor this court acquired jurisdiction, there being nothing in the record showing that the affidavit for an appeal from the justice’s court was filed within the time provided by law. Kelm v. Eunlder,A9 Mo. App. 664; Green v. Castello, 35 Mo. App. 127.

— Hon. D. W. Shackleford, Judge. (1) The motion in arrest of judgment should have been sustained. The allegations in petition show that plaintiff is not entitled to recover. It states no cause of action. Bayse v. Ambrose, 32 Mo. 484; 'Eyerman v. Cemetery, 61 Mo. 489; St. Louis v. Cruihshanh, 16 Mo. App. 495; Davis v. Broton, 67 Mo. 313. (2) The demurrer offered to plaintiff’s evidence and renewed at' the close of the case should have been given.

— Hon. Wm. S. „ Herndon, Judge. (1) To charge a man with being a thief in general terms may be actionable, because it imputes an indictable offense involving moral turpitude, but if it appears that the word “thief” was used as a mere term of abuse, and that in fact there was no imputation of actual theft conveyed by it, there is no cause of action, and in such case, and indeed in all cases, where, from the plaintiff’s own showing, it appears that the words were not used in…

— Hon. A. M. Woodson, Judge. (1) The court erred in sustaining the motion to affirm the judgment of the justice of the peace, for the, reason that said cause had been duly appealed, and it was no neglect on the part of the appellants that the transcript was not filed before the day it was, and no appearance had been entered by the appellee until the January term of this court, 1893; to wit, on January 5, 1893.

— Hon. G-. D. Burgess, Judge. (1) “Partnership creditors have a primary and exclusive claim upon the partnership assets of * * * insolvent partners.” Tenney v. Johnson, 43 N. H. 144; Phelps v. McNeeley, 66 Mo. 554; Flannegm v. Alexcmder, 50 Mo. 50; Ackley v. Staehlin, 56 Mo. 561; McDonald db Co. v. Cash db Hainds, 45 Mo. App. 66; In re Estate of Edwards dbWigginton, 47 Mo. App. 307; Beylurn v. Mitchell, 106 Mo. 365, 375, top 377; Murrill v. Neill, 8 How.

— Hon. D. W. Shackleford, Judge. (1)' The court erred in refusing to allow the defendant to prove by the witnesses Higbee and Bay, that there was in force at that time a regular tariff rate for the transportation of car loads of horses between California and St. Louis, when the owner placed a higher value on his horses than $100, and refused to release their value over that sum, or refused to enter into a special contract limiting the defendant’s liability, which tariff rate…

— Hon. Richard Eield, Judge. (1) Under the petition, there being but one count, the only question that could properly be submitted to the court was as to whether or not the appraisal should be set aside; and the court properly held that the evidence should be confined to that issue. 'McHoney v. Ins. Co., 44 Mo. App. 426; Steinberg v. Ins. Co., 49 Mo. App. 255, 265; McHoney v. Ins. Co., 52 Mo. App. 94; Ice Co. v. Ins. Co., 31 Barb. (N. T.) 72.

— Hon. D. P. Stratton, Judge. (1) It is not true, as ruled by the court, that “this is a suit on an alleged accepted order in writing, or bill of exchange, and proof of acceptance must be in writing, and could not otherwise be established.” The court erred in so ruling. R. S. 1889, sec. 724; Lockhart v. Moss, 53 Mo. App. 633.

— Hon. Richard Field, Judge. The court erred in giving instruction number 1 asked for by relators.

— Hon. D. W. Shackleford, Judge. (1) The court below should have sustained defendant’s demurrer to the plaintiff’s evidence. His evidence showed beyond dispute that plaintiff was guilty of such contributory negligence as bars a recovery, and that the strictest observance of the ordinance recited in the petition would not have avoided the injury to plaintiff. Boyd v. Railroad, 105.

— Hon. A. M. Woodson, Judge. (1) The court committed error in sustaining respondent’s motion for a new trial. The case was properly and legally tried, so far as the respondent is concerned, upon proper and legal evidence and instructions, and the court made no ruling adverse to the respondent which is in any wise erroneous. The court could only set aside the verdict and grant a new trial for good cause shown on motion of respondent. E. 8. 1889, sec. 2240.

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

— Hon. Daniel Dillon, Judge. ■ The court erred in taking from the jury the question of whether or not the plumber who left the door open was an independent contractor, or under the control of respondent through her agent, Scanlon.

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

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. The testimony showing what efforts were made by the defendant to sell the wool of the plaintiff, and the letter received by it from the plaintiff, were perfectly competent evidence and the court erred in rejecting the same. Ames v. Gilmore, 59 Mo. 537; Bade v. Harvey, 12 Mo. App. 577; Young v. Keller, 16 Mo. App. 550; Singer v. Goldenburg, 17 Mo. App. 459; Lennox v. Harrison, 88 Mo. 491.

<p>1. Criminal Law: forcible entry: description op premises in information. An information for a forcible entry described the premises as about eight acres of the west half of the northeast fourth of a designated quarter section. The evidence showed that these eight acres were separated by a draw from the other twelve acres of said subdivision of the quarter section. Held, that the description was sufficient.</p> <p>2. -: -: sufficiency of evidence. The evidence is considered, and held sufficient to establish a eriminaljEorcible entry contrary to section 3779 of the Revised Statutes.</p>

<p>Statute of Limitations: effect of nonresidence. The statute of limitations runs against a demand, though the debtor is a nonresident of the state when the cause of action accrues, and remains one thereafter. The saving clause of the statute with reference to the absence of the debtor from the state applies only if he is a resident when the cause of action accrues.</p>

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

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. The alleged leasing of the meadow by the appellant to the respondent is an interest in land within our statute of frauds, and can not be proved by parol. 2 R. S., secs. 5182, 5186. This court and our own supreme court have put this construction on our statute. Potter v. Everett, 40 Mo. App.. 161; Fuhrv. Dean, 26 Mo. '120; Desloge v. Pearce, 38 Mo. 588.

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

<p>1. Garnishment: protection afforded to garnishee by judgment. Jurisdiction against the defendant in an attachment suit is essential to jurisdiction over a garnishee summoned under the writ of attachment; and the garnishee must see to it, at his peril, that such jurisdiction exists .before complying with a judgment against himself.</p> <p>2. -: -: effect of actual notice to defendant. Nor will a judgment against a garnishee, rendered without such jurisdiction, obtain efficacy or afford him protection by reason of his having notified the defendant of the garnishment proceedings.</p> <p>3. --■: -: suit against partnership in its firm name. A suit cannot be maintained against a partnership in its firm name in the absence of actual service on, or an appearance by, the individual members of it. Accordingly, when a suit by attachment is thus instituted, service by publication, directed to the partnership in its firm name, will not confer jurisdiction over its members so as to warrant a judgment against funds in the hands of a garnishee.</p>

<p>Appeal from the Clark Circuit Court. — Hon. Ben. E. ' Turner, Judge.</p> <p>The state must show that the prosecuting witness was the owner of the fence.. E. S. 1889, sec. 3592; State v. Guernsey, 9 Mo. App. 312.</p>

— Hon. John A. Hookadat, Judge. (1) In an action by the indorsee against the maker of a note, the indorsement of the payee must be proved. 2 Parsons on Notes and Bills [2 Ed.], p. 485; Bank v. Pennington, 42 Mo. App. 355. (2) And where a note is presented, purporting on its face to have been indorsed by an agent, the agent’s authority must be shown. Union Sav. Ass’n et al. v. Biebold, 1 Mo. App. 323; Choutou et al. v. Filly, 50 Mo. 174; Stone v. Palmer, 28 Mo. 539.

<p>1. Insurance: notice of loss : waiver. When verbal notice of loss is given to the local agent of the insurer who communicates it to the insurer, and he thereupon acted upon it without complaint, the written notice required in the policy is waived.</p> <p>2. -; PROOFS OF LOSS: NO NOTICE TO PRODUCE: SECONDARY evidence. When plaintiff gives no proper notice to produce the original proofs of loss, secondary evidence as to the contents of such proofs is improper and should he excluded, and when the court, trying the case without a jury, seems to have attached weight and importance to such evidence the judgment will he reversed.</p>

— Hon. W. S. ' Herndon, Judge. (1) The order of the township board directed to Levi Wood directing him to open the road should have been submitted to the jury. The order required by section 8549, Revised Statutes, 1889, is the only order with which the road overseer has to deal. Light is thrown on these sections and their proper interpretation is facilitated by an examination of the road law as it applies to counties not under township organization.

— Hon. Oyetjs A. Anthony, Judge. (1) The bond or recognizance is in the nature of an appeal bond and recognizance both, in its conditions, which are in conformity to the statute of 1879, section 2061, in force when the bond was executed.

<p>1. Principal and Agent: loyalty or agent: dual agency. The law demands the entire loyalty of the agent to his principal and will not permit him to occupy a position of temptation, even, nor can he act as the agent for both seller and purchaser. And should the agent transgress this rule he is chargeable as trustee with all profits on account thereof.</p> <p>2. --: sale or real estate: PURCHASER. If an agent for the sale of real estate use a third party as a mere conduit to deceive his principal and pass the title to himself equity treats the transaction, as in substance it is, a sale to the agent, and holds him responsible for all the profits. But if the third person is a bona fide purchaser and subsequently sells the same property to the agent, the principal has no cause of complaint. On the facts of this ease the sale is held, bona fide.</p>

— Hon. Richard Field, Judge. (1) The court erred in refusing to strike out the amended petition. The original petition stated a cause of action founded upon a statute of the state of Texas, making a railroad company liable without proof of negligence unless the track was fenced, while the amended petition stated a common law action, based upon negligence in running and operating a train of cars. These were inconsistent and the proof of one would not sustain the other.