Volume 59 — Missouri Appeal Reports

<p>Error to the Barry Circuit Court.—Hon. J. C. Lamson, Judge.</p>

<p>Appeal from the Barry Circuit Court.—Hon. J. C. Lam-son, Judge.</p>

<p>Appeal from the Lawrence Circuit Court.—Hon. W. M. Robinson, Judge.</p>

<p>1. Bill of Exceptions: skeleton bill. A till of exceptions in skeleton form must identify papers or documents called for tut not inserted in it, so as to limit the clerk to the insertion of those intended. And, held, that the specification of such papers in the till in this cause was insufficient.</p> <p>2. --: specifications of rulings of court. It is incumbent on a party, who files a till of exceptions, to see to it that the till preserves in an intelligible shape what has transpired in the trial court in relation to the rulings excepted to.</p>

<p>1. Foreign Benefit Societies: effect of statutory limitation of beneficiaries. Our statute, which limits the payment of benefits by benevolent corporations to specified, classes, does not apply to foreign corporations having branches in this state.</p> <p>2. -: construction of contract. The charter of such a foreign corporation provided that the benefits should be payable to the family of each deceased member, or to others, in accordance with his directions. The certificate issued to a member was made payable “to his will.” Held, that a direction by his will as to its payment was a valid designation of the beneficiaries.</p> <p>3. -: powers of subordinate lodges. Seld, in the course of discussion, that a subordinate lodge established by such a corporation can not vary a certificate thus issued, unless the power to do so has been delegated to it.</p>

—Hon. E. M. Hughes, Judge. (1) Where the former suit is not a part of an entire and indivisible demand, or where the demands arise out of separate and distinct causes of action, the judgment in the former suit is not a bar to a second suit on a cause of action not actually adjudicated in the former suit. Brown v. King, 10 Mo. 56; State v. Morton, 18 Mo. 53.

Louis Comity Circuit Court.—Hon. Rudolph Hiezel, Judge. (1) A foreign corporation can not sue in this state without complying with the law prescribing tfie; terms upon which, it may enter and so do business herein, and the terms upon which it may enforce a contract in our courts. To maintain an action in Missouri a foreign corporation must show compliance with the provisions of the act of April 21, 1891.

<p>1. Gratuitous Bailment: burden of proof. In cases of gratuitous bailment, proof of the deposit, and of a demand and refusal of the article deposited, establishes prima facie the liability of the depositary to the depositor.</p> <p>2. Evidence: competency of admissions by agent of railway company. In an action against a railway company for the loss of a trunk, left by the plaintiff with such company for storage prior to an intended transportation of it as Ms baggage, statements in reference to the loss, made to the plaintiff by the agent of the company who received the trunk, are competent evidence against the company.</p>

Louis County Circuit Court.—Hon. Eudolph Hirzel, Judge. The action is quo ivarranto to determine the right of the appellant to membership in the house of delegates of St. Louis. The charter of the city provides that the house shall be sole judge of the qualifications, elections and returns of its own members. E. S. p. 2093, art. 3, sec. 8. This provision is exclusive and operates to prohibit the courts from inquiring into the right of one to a seat in said body.

—Hon. J. T. Neville, Judge. (1) When a party sues upon a contract, he must show that the contract was followed, its terms were kept, and tliat he was not at fault. The plaintiff committed a breach of this contract by failing to deliver the building ground at the proper date, with lines and levels, as well as in many other respects shown by the evidence; hence he can hot recover in this action by declaring upon the contract. Lanits v. King, 93 Mo. 513; Henning v. Ins.

<p>Practice, Appellate: question or title to seal estate. An. action to cancel a deed of trust conveying real estate, instituted after condition broken, involves the title to real estate, so that the supreme-court has jurisdiction of an appeal therein.</p>

<p>1. Practice, Appellate: finality of judgment of trial courts. An appeal from a judgment on demurrer in favor of one of several defendants, which leaves the cause pending as to the others, is premature and must he dismissed. Nor can jurisdiction of the appeal he acquired hy the continuance of the hearing therein until after the rendition of final judgment against such other defendants hy the trial court.</p> <p>2. -: APPEAL FROM INTERLOCUTORY JUDGMENTS: EFFECT OF ACT OF 1891. The act of 1891 in relation to appeals from interlocutory judgments applies only to the cases enumerated in it.</p>

<p>Appellate Jurisdiction: appeal involving constitutional right op trial by jury. The supreme court has jurisdiction of an appeal which involves the validity of the claim of a constitutional right to a trial hy jury.</p>

<p>Practice, Appellate: duties op appellant. It is the duty of aa appellant to at once inform the clerk of the trial court whether he desires a transcript of the entire proceedings, or merely a certified copy of the entry of Judgment and order allowing the appeal; a failure on his part to, do so constitutes negligence.</p>

<p>1. Nuisances: brick-kiln. A brick lain is not a nuisance per se. But it will be one in fact, when vapors and smoke arising from it are productive of material discomfort to the occupant of an adjoining residence, or his family; it is not essential that it should cause him pecuniary loss.</p> <p>2. -: -: instructions., An instruction, submitting to the jury the issue of fact whether the brick kiln is a nuisance, should inform them what is essential to render it a nuisance.</p> <p>3. -: -: evidence. In the trial of this issue, evidence of the effect of smoke and fumes produced by other brick kilns to premises adjacent thereto is irrelevant; but held, in the course of discussion, that a person qualified by experience may state, after an examination of the premises, his opinion as to the probable effect of the smoke and vapors arising from the kiln in question.</p> <p>4. Appellate Jurisdiction: amount in controversy. When a plaintiff appeals from a judgment for the defendant, the amount for which judgment is asked is not in all cases the amount in dispute for the purposes of appellate jurisdiction. The real amount in dispute controls, when the record shows definitely that it is less than the amount demanded.</p>

Louis City Circuit Court.—Hon. Daniel Dillon, Judge. (1) The court erred in overruling the demurrers to the evidence interposed by defendant at the close of plaintiff’s case, and of the whole case. Stanarcl Milling Co. v. White Line, 26 S. W. Rep. 708; Basnight v. Railroad, 16 S. E. Rep. 324; Pikev. Railroad, 40 Wis. 583; Waldv.

Louis County Circuit Court.— Hon. Rudolph Hirzel, Judge. The rule as to the plaintiff’s damage adopted by the court below was improper under the amended petition in this case and the facts introduced in evidence in support of the allegations of said amended petition. McAllister v. Reel, 53 Mo. App. 31; Clark-son v. Skidmore, 46 N. Y. '304.

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

<p>Evidence: offer or compromise: The mere offer of a sum of money in compromise of litigation is not competent evidence, as an admission of liability, against the party making it.</p>

<p>1. Appellate Review of Order Granting New Trial: discretionary grounds. An order sustaining a motion for new trial will not, on appeal therefrom, be affirmed on a discretionary ground, such as the discovery of new evidence, unless that ground is assigned in the order as a reason therefor, or the denial of it by the trial court would amount to an abuse of its discretion.</p> <p>2. Mechanics’ Liens : account in books op material man. The integrity of a lien account for materials furnished for a building is sufficiently preserved by separate entries Of the items in the material man’s books of original entry, although his ledger contains an account wherein these items are lumped with others.</p> <p>3. -: appropriation op payments. Payments made by an original contractor to a subcontractor, without any application thereof by either party, will be applied to the oldest items of the account between them.</p> <p>4. -: waiver. The acceptance by a material man of promissory notes as security for his account will not per se constitute a waiver of his mechanic’s lien, though these notes mature after the expiration of the time allowed for the filing of the lien.</p>

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

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. (1) Where the plaintiff in a suit for malicious prosecution has been committed by the examining magistrate or indicted by the,grand jury, such indictment or commitment is prima facie evidence of probable cause, and the plaintiff can not recover, unless this proof is overcome by evidence either (a) that said indictment or commitment was procured by false or fraudulent testimony or other improper means, or (6) that,…

<p>1. Mechanics’ Liens: former recovery. Held, arguendo¡ that when the plaintiff in an action to enforce a mechanic’s lien shows that he has supplied materials to the defendant contractor, hut the jury find by their verdict that a portion of these materials was not furnished for the building sought to be charged, the plaintiff is not debarred from suing the contractor in another action for the price or value of such portion.</p> <p>2. Evidence: husband and wife. The husband and wife may testify for each other as to matters in which he or she acted as the agent for the other, and semble that she is a competent witness to prove her agency.</p>

<p>1. Divorce: desertion. The wife is bound to follow the fortunes of her husband, and to live where he chooses to live and in the style and manner which he may adopt.</p> <p>2. -: -. The permanent change of the domicile of the wife without the consent or knowledge of her husband, and without cause, is a desertion within the meaning of our divorce laws.</p>

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

—Hon. W. S. Herndon, Judge. (1) A certificate of acknowledgment which recites that “Berkley & Bro.” appeared and acknowledged the instrument, without further specification of the party who acknowledged it, is fatally defective. Hughes v. Morris, 110 Mo. 306; Sloan v. Machine Go., 70 Mo. 206. (2) J. N. Berkley was not authorized to execute mortgages in the firm name. To execute sealedinstruments, the partner must have express authority. Givinnv. Boolcer, 24 Mo.

—Hon. Wm. S. Herndon, Judge. (1) The defendant Close is estopped to deny his liability upon the note sued on. Acton v. Dooley, 74 Mo. 63-67, and cases cited. His silence, whether so intended or not, was a fraud upon the plaintiff and his assignor. Bales v. Perry, 63 Mo. 449-453, and cases cited. It had the effect of misleading the plaintiff. Press Brick Co.v. Newmeister, 15Mo. App. 592; Conrad v. Fisher, 37 Mo. App. 352.

—Hon. W. S. Heendon, Judge. (1) Cited Revised Statutes, 1889, sections 6213, 2019, 6148. (2) If a defendant refuses to receive a summons offered him by the officer having the writ for service, the officer may return that he delivered the summons or he may return the facts specifically, and they will be held to be a delivery. Fuller v. Kenney, 32 Me. 334; Norton v. Header, 4 Sawy. (U. S.) 603; Martin v. Baffin, 21 N. Y. S. 1043.

<p>Appeal from the Buchanan Criminal Court—Hon. Silas Woodson, Judge.</p> <p>(1) The lower court erred in sustaining the motion to quash the complaint; because the complaint is to be tested by the rules applicable to civil actions before justices of the peace, and not by the rules in criminal cases. St. Louis v. Knox, 74 Mo. 79; St. LoiAs v. Schoenbusch, 95 Mo. 618; Springfield v. Ford, 40 Mo. 586; Ex parte Holdwell, 74 Mo. 400; Kansas City v. Neal, 49 Mo. App. 77. Tested by this rule the complaint is sufficient. It compasses every requirement, not only of a civil complaint, but would be sufficient in a criminal indictment. (2) The only provision in the statute in reference to the recovery of fines is “such fines may be recovered by suit in the name of the city before any court of competent jurisdiction.” R. S. 1889, chap. 37, sec. 1253, p. 368. The city recorder has, by section 1289, Revised Statutes, 1889, page 373, exclusive jurisdiction. By statute the name of “city recorder” was changed to “judge of police court.” Sess. Acts, 1891, p. 50. (3) No warrant was issued in this case—the defendant was arrested in the act of violating an ordinance. In such cases no affidavit is required—only a statement of the charge reasonably" sufficient to inform the defendant of the charge against him. Under sections 2 and 3 of the ordinance a complaint not sworn to only authorizes a summons; if sworn to it authorizes a warrant; but if the defendant be arrested on view as authorized by law, then a simple statement of the charge is formulated without oath. R. S. 1889, sec. 1440, p. 417; R. S., 1889, sec. 1461, p. 423.</p> <p>(1) The officer’s report being insufficient, the city attorney can not set up facts in his information which are not contained in the written report filed by the officer as the basis of the action. State ex rel. v. Balter, 74 Mo. 394; City of Salisbury v. Patterson, 24 Mo. App. 173; Missouri City v. Hutchinson, 71 Mo. 47-50; City of Kansas v. Flanagan, 69 Mo. 23; City of Kansas v. O'Connor, 3'6 Mo. App. 600. (2) The pleadings are insufficient under the rule in civil cases. Inhabitants of Memphis v. O’Conner, 53 Mo. 468; City of Marshall v. Standard, 24 Mo. App. 192; St. Louis v. Fits, 53 Mo. 582; City of Salisbury v. Patterson, 24 Mo. 169.</p>

—Hon. A. M. Woodson, Judge. (1) The objection made to the introduction of any evidence should have been sustained. Although the petition alleges that defendant made many false representations, none of these as to past transactions •or existing facts were ruled upon by plaintiff.

—Hon. Andrew Ellison, Judge. (1) Negligence alleged in the petition is that the cattle guard over which the mare passed “was then, and ever since its construction had been, defective, unlawful and insufficient to prevent,” etc. The uncontroverted facts are, no one saw the mare crossing the guard. This guard was a standard guard and similar in every respect to the guards used upon all railroads of the country.

—Hon, Henry M. Ramey, Judge. (1) There is no evidence, not an iota, that the principal in the bond was insolvent, or that respondents were compelled to pay. Nor is there any evidence that their' cosureties ever authorized them to pay anything for their principal, or to accept the note and deed of trust from McGeorge.

—Hon. D. W. Shackleford, Judge. The court committed error in giving the plaintiff’s first instruction over defendant’s objections. It was wrong because: First. The evidence did not warrant it as to the habit of cattle to congregate on the track; or as to defendant’s servants having reason to anticipate the presence of cattle on the track; or as to a negligent rate of speed. Second. Because it did not correctly explain negligence. Goodwin v. Railroad, 75 Mo. 73. Third.

—Hon. D. P. Stratton, Judge. (1) The affidavit and testimony of the family physician accompanying the application for continuance by defendant, showed he was unavoidably absent from the court, and the application further shows defendant to be a material witness for himself. Rivrclc v. St. Louis Exposition, 28 Mo. App. 629.

—Hon. John W. Wofford, Judge. (1) It is fundamental that an ordinance or by-law, to be valid, “the books say:” First. Must not be inconsistent with the charter of the corporation. Second. It must not be inconsistent with the law of the state. Third. It must not be repugnant to fundamental rights.

—Hon. Andrew Ellison, Judge. (1) The court .erred in giving defendant’s first instruction, “If from -the whole of the evidence the jury are unable to say that defendant is guilty beyond a reasonable doubt they should acquit.” This is a civil action to recover a penalty. The breach of a town ordinance is not a violation of a law of the state, and is not a crime. Kirkwood v. Autenreith, 11 Mo.

—Hon. Andrew Ellison, Judge. (1) The court erred in permitting the plaintiff to-file its amended affidavit. The first affidavit was fatally defective; it was no affidavit, and was not subject to amendment. The record does not show that R. M. Ringo had any interest in said cause of action, or that he was attorney for plaintiff. R. S.,see. 526. “The authorities are pretty well agreed that such a defect is-fatal to the affidavit.” Claflin v. Hoover, 20 Mo. App. 314.

—Hon. Paris C. Stepp, Judge. (1) The amended petition alleges that -respondent Francis neglected and refused to levy upon the property under the writ of attachment, and made false return thereof that he had levied upon the property and does state a good cause of action, and the trial court erred is sustaining the demurrer thereto. Respondent, Francis, was liable for failing to make a levy on the property. Ins. Co., v. Leland, 90 Mo. 177; State ex rel. v. Harrington, 41 Mo.

—Hon. Wm. S. Herndon, Judge. (1) Plaintiff’s fourth instruction should have been given, and defendants’ third instruction refused; where a mortgagor of chattels without title to them afterwai'ds acquires the title, the same inures to the mortgagee. Hichnanv. Hill, 39 Mo. App. 246; Keating v. Hannenhamp, 100 Mo. 161. (2) The court erred in allowing Carmichael to testify at length to plaintiff’s interest and activity in having him indicted and arrested on a criminal charge.

—Hon. Henry M. Ramey, Judge. (1) The court erred in continuing the cause at the cost of defendants. R. S. 1889, sec. 2128; Colhoun v. Crawford, 50 Mo. 458; Keltenbaugh v. Railroad, 34 Mo. App. 147. (2) The court erred in overruling defendants’ motion to retax costs. Pierson v. Railroad, 18 Mo. App. 439; Shed v. Railroad, 67 Mo. 687; Authorities, supra.

—Hon. E. J. Beoaddus, Judge. (1) The affidavit for the revival of the judgment is sufficient and in a strict compliance with section 6291, Revised Statutes, 1889. Said affidavit is sufficiently authenticated by signature and seal. Young v. Rollins, 85 N. C. 485; Tucker v. Ladd, 4 Cowan, 47. Affidavit made in the United States can be used in Missouri. Ency. of Law, page 768. The notary will be presumed to have authority. 77 Mich. 265.

—Hon. Jno. A. Hockaday, Judge. Instruction number 1 on behalf of defendant-should not have been given, for there was no evidence that Dingle sold the whisky to Head & Denham on their credit, and no evidence that he or plaintiffs ever looked to them for pay, or that Head & Denham ever . promised to pay, or ever expected to pay. Instruction number 3 on behalf of defendant does not state the law correctly.

—Hon. Jno. A. Hockaday, Judge. (1) Under the pleadings and evidence tbe sole controverted issue for the jury to pass upon was, has defendant shown by a preponderance of evidence that he notified plaintiff’s salesman, Forgey, that he 'would not pay for goods sold to Head & Denham in his name and the jury were so instructed by the court on the part of the plaintiff.

—Hon. Jno. A. Hockaday, Judge. (1) The court erred in permitting the witnesses to testify in reference to the propositions of compromise. The court erred in overruling defendant’s objection to this evidence, and in holding that it was admissible to show waiver of a proof of loss. As that question was not in issue, the defendant from the first denied its liability under the policy, and that did away with the necessity of a proof of loss. Maddox v. Ins. Co., 39 Mo. App. 198.

—Hon. W. W. Ruckee, Judge. (1) The demurrer to the evidence should have been sustained. The testimony falls far short of showing any contract between the deceased and his daughter, the plaintiff. The most that can be made out of the testimony is, that he felt .grateful for the kind attentions of his daughter, and thought something of buying a farm upon which she and her family could live with him.

—Hon. W. W. Rucker, Judge. (1) The court committed error in admitting any evidence for defendants, and the court committed error in giving the instruction asked for by defendants. It simply declared the law to be that an agister’s or livery stable keeper’s lien is superior to a prior chattel mortgage that had been executed, acknowledged and filed for record in proper county long before the agister’s lien commenced. This is not the law.

—Hon. Rudolph Hirzel, Judge. (1.) Parol evidence can not be received to change the terms of a written contract. The bill of sale is clear that the goods in question were stored in livery stable of James W. Jordan and were to remain there at pleasure of respondents. The evidence admitted over objection of appellants tended to weaken and explain and modify the terms, the plain terms, of the bill of sale.

—Hon. D. W. Shackleford, Judge. (1) The amended petition does not state a cause of action,' and the motion in arrest of judgment should have been sustained. First. The publication was not libelous per se, and no special damages were alleged. The question whether the publication is libelous or not is one of law for the court where there is no ambiguity. There can be but one meaning attached to the publication.

<p>1. Telegraph Company: statutory penalty nor non-transmission op telesram. The statutory penalty, provided hy Revised Statutes, seetion 2725, attaches to the failure of a telegraph company to transmit a dispatch, though such failure is not due to partiality or had faith.</p> <p>2. -:-: pleading. Held, Bond, J., dissenting, that the statement of the cause of action for such penalty must allege the delivery of the dispatch at the office of the telegraph company, or else it will he insufficient after verdict; it is not enough to allege a delivery merely to the operator of the company.</p> <p>3. -: -: -. Held, further, Bond, J., dissenting, that the averment of the payment of a stated sum to the telegraph company for the dispatch will not, even after verdict, he deemed a sufficient allegation of the payment of usual charges.</p>

<p>1. Mortgages: bight of action of mortgagee foe waste. The beneficiary in a deed of trust may, after entry and foreclosure, maintain an action for permanent injuries to the mortgaged premises, which were committed by the mortgagor or third persons while in possession and before condition broken, and were productive of a loss on the mortgage debt.</p> <p>2. Parol Evidence inVariance of Mortgage: description of property conveyed. The property conveyed by a deed of trust-must be determined by the deed itself. No parol understanding between the parlies can limit the operation of the terms of the deed in respect thereto.</p> <p>3. Trespass: misjoinder of parties. Held, in the course of discussion, that claims for distinct and separate trespasses, committed by different parties defendant, can not be joined in one action.</p>

—Hon. Lafayette Beasley, Special Judge. (1) Section 5164, Revised Statutes, does not undertake to render nugatory the acts of a justice, even where the affidavit for change of venue is properly made; for it only provides for the manner and causes, and, this chapter being a complete and separate law, it could not extend any further than the limitations of the statute.

Louis City Circuit Court.—Hon. Daniel D. Eisher, Judge. Plaintiffs, being the agents of the defendant in selling the defendant’s goods at the auction sale, could not legally buy in said goods themselves, and could not charge the defendant with any difference between the price at which the plaintiffs bought in- said goods and the contract price agreed to be paid by the defendant.

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. (1) The respondents, having acted as a corporation, and'having held themselves out to the world as such, and having enjoyed the benefits and immunities belonging to a valid corporation continuously since the order of the circuit court in May, 1873, granting the certificate of incorporation,, are now estopped from asserting that the existence of the corporation did not begin until 1880, when a copy of their articles of…

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

<p>1. Assignment of Lease: assumption or obligations or lessee by assignee. An agreement between a lessor and an assignee of the lease, by which the former assents to the assignment subject to all the covenants in the lease, and the latter accepts the assignment with all its responsibilities, amounts to an assumption by the assignee of the covenants of the lessee, and therefore obligates him to perform those covenants after the termination of all privity of estate between the lessor and himself.</p> <p>2. -: -: consideration. The assent by a lessor to an assignment of a lease is a sufficient consideration for covenants by the assignee, when such assent is requisite to the validity of the assignment.</p>

<p>Practice, Appellate: weighing the evidence. The fact that tbe evidence of the appellant in an action at law may seem to this court to be entitled to greater credit than that of the respondent, will not warrant the reversal of the verdict on the theory of mistake or prejudice. That can only be done when the verdict is opposed to all the probabilities to such an extent as to clearly indicate that tbe trier of the fact either did not weigh the evidence at all, or else was clearly mistaken as to the applieatory law.</p>

<p>Appeal from the St. Louis City Circuit Court.—Hon. Daniel D.' Eisher, Judge.</p> <p>The instruction for a nonsuit should have been given. Defendant was not an insurer of plaintiff; and, in order to hold defendant liable, knowledge that the steps were loose at the time of the accident must be brought home to him, or proof given that he was ignorant of the same through want of care. O’Malley v. Railroad, 113 Mo. 319; Currant v. Railroad, 86 Mo. 62; Elliott v. Bailroad, 67 Mo. 272; Breen v. Cooperage Co., 50 Mo. App. 202; Benjamin v. Bailroad, 50 Mo. App. 612; O’Donald v. Patton, 117 Mo. 13; Clough v. Hoffman, 132 Pa. Sfc. 626; Bi'echlav. Greensfelder, 52 Mo. App. 43; Wood on- Master - and Servant [2 Ed.], secs. 368, 382. This fact, namely, that the defendant knew or ought to have known that the steps were loose, must affirmatively appear, not as a result of bare conjecture, but a,s a legitimate inference from the evidence. .. The mere happening of the accident is no evidence of negligence, and the bare possibility that the defendant knew or might have known of the defect is not sufficient to establish it. There is always a presumption that he dischai’ged his duty and was not at fault, and if no proof to the contrary be adduced, this presumption remains, and it is error to submit the question to the jury. O’Donnelv. Baum, 38 Mo. App. 245; Breen v. Cooperage Co., 50 Mo. App. 202, and cases cited; Calahan v. Warne, 40 Mo. 136; Smith v. Bailroad, 37 Mo. 292; Sack v. Bailroad, 137 111. 129; Morrison v. The Phillips, etc., Co., 44 Wis. 405; De Graff v. Bailroad, 76 N. Y. 125. No inference that the defendant had knowledge of the steps being loose could arise in this case. The steps having been in daily use for some time, and having uniformly proved safe, there was nothing to cause the defendant to suspect that the steps were in any way out of order. O’Malley v. Bailroad, 113 Mo. 319; Sappenfield v. Bailroad, 91 Cal. 48. The steps having become suddenly out of repair, defendant was entitled to a reasonable time within which to discover their condition and repair same. .Benjamin v. Bailroad, 50 Mo. App. 612; Lamperte v. Laclede Gaslight Co., 14 Mo. App. 376; Bailroad v. Stiles, 20 111. Ápp. 648; Clough v. Hoffman, 132 Pa. St. 626; Bail-road v. Allen, 47 111. App. 465; Wood on Master and Servant [2 Ed.], sec. 332.</p> <p>It is not incumbent on tbe servant to search for latent defects in the implements furnished him by his employer; but he has, without any investigation, the right to assume that they are safe and sufficient for the purpose. Porter v. Railroad, 71 Mo. 66. The employer is bound to exercise reasonable care and prudence to provide reasonably safe mediums and appliances, and, if this duty is neglected, he is liable. Whalen v. Centenary Church, 62 Mo. 326; Reber v. Tower, 11 Mo. App. 199; Corey v. Railroad, 86 Mo. 635; Railroad v. Gilder sleeve, 33 Mich. 133; Bradbury v. Goodwin, 108 Ind. 286. The question' whether or not the defect is discoverable is for a jury to determine. Becky v. Railroad, 65 Cal. 150; Rummell v. Dillworth, 111 Pa. 343.</p>

<p>1. Mechanic’s Lien: misdescription op premises in notice op lien claim. The partial misdescription, of the premises affected will not invalidate the notice of a lien claim given by a subcontractor to the owner, if, on the rejection of it as surplusage, enough will be left in the notice to identify the building sought to be charged, and the owner could not have been misled. *</p> <p>2. -: practice, appellate. Held, in the course of discussion, that the reversal by this court of the judgment in an'action for the enforcement of the mechanic’s lien of a subcontractor annuls a personal recovery therein against the original contractor, but that a retrial of the personal claim against the latter is not necessary when the reversal is for error affecting only the lien.</p>

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

<p>1. Married Women: estoppel. A married woman may create an estoppel against herself in respect to her separate estate to which she can pass title by parol and delivery. And such an estoppel results, when another person with her aequiscenee assumes to sell such property as his own, and the purchaser is led thereby to treat the seller as the owner.</p> <p>2. -: -. But held by Bond, J., dissenting, that the evidence in this cause did not warrant the application of the foregoing principle.</p> <p>3. Replevin: right of action by tenant in common.- Semble, that one of several owners in common can not maintain an action of replevin against a stranger to the title, who is in possession.</p> <p>4. -: -: form 'of judgment. But held, Bond, J., dissenting, that the judgment for the defendant in such an action must, even when the property in controversy has been taken fromhim, be limited to a judgment for costs, and should not entitle him to the recovery of the property or its assessed value.</p>

<p>Appeal from the Greene Circuit Court.—Hon. James T. Neville, Judge'.</p>

—Hon. J. MoD. Trimble, Special Judge. (1) The court erred in refusing to instruct the jury to find for plaintiff. First.

—Hon. D. P. Stratton, Judge. (1) The evidence in this case shows eonelnsively that the plaintiff parted with nothing in payment for the box of goods in question. His position or condition not having been changed, he will not be heard to ask for damages, because the box of goods did not meet or reach his expectation. Bartlett v. Blaine, 83 111. 25; Medbury v. Watson, 6 Met. (Mass.) 246; McMasters v. Geddes, 19 U. 0.

—Hon. D. P. Steatton, Judge. The only point in this case is: Does the judgment on the garnishment proceeding against defendant M. F. Daniels relate back to the debt contracted by the defendant M. F. Daniels with the D. H. Smith Hardware Company so far as the homestead rights of the defendant Daniels is concerned, or does the judgment upon the garnishment proceedings create a new debt having only the date of the judgment?

—Hon. James Gibson, Judge. (1) The court ought not to have granted a new trial at request of defendant. There was not only-abundant evidence to support the verdict, but the weight of the evidence as to the value of the stock killed was all one way. There was absolutely no evidence whatever, even tending to prove ,lhat the stock was not worth at least the value fixed by the verdict. (2) To entitle a party to a new trial an error must be against him, not in his favor.

—Hon. Andrew Ellison, Judge. (1) The levy of the constable placed the property in the possession of the law and “the property continued to be in the possession of the law” and in the custody and control of the constable, although pastured, cared for and fed by Magee, who was only bailee for constable. Fleming v. Clark, 22 Mo. App. 218, and cases therein cited; Williams v. Fvans, Adm’r, 39 Mo. 101; Hatch v. Bailey, 12 Cush. 29; Gibson v. Stevens, 8 How. 384.

—Hon. Paris C. Stepp, Judge. (1) A principal is not responsible for tbe torts of bis agent, unless tbe act constituting tbe tort was authorized or ratified, and in actions brought for damages resulting from tbe tort tbe question of authority or ratification should be submitted to the jury. Edelman v. St. Louis Transfer Go,, 3 Mo. App. 503; Hogan^v. Railroad, 3 R. I. 88; Groher v. Railroad, 36 Wis. 658.

—Hon. Paris C. Stepp, Judge. (1) There was no sufficient evidence tending to show negligence on the part of appellant’s employees to entitle respondent to recover in this casé, and the trial court should have given appellant’s demurrer to the evidence both at the close of respondent’s evidence and at the close of the evidence. When the engineer first saw the object on the track he thought it was a man, and had the right to assume that he would get out of the way.

—Hon. Edward M. Soarritt, Judge. STATEMENT BY ELLISON, I. Plaintiff is a lumber company located in the state •of Tennessee and defendant is a planing mill company doing business in Kansas City. The garnishee is a •lumber company also doing business in Kansas City, and located near the defendant company. Plaintiff obtained judgment against defendant for a bill of lumber furnished to said company.

—Hon. D. W. Shackleford, Judge. (1) The court erred in taking the case from the jury by instructions, as there was evidence before the jury tending to prove that a part of the corn in controversy had been severed from the land before the date of the sale, under which plaintiff claims title.

—Hon. Henry M. Ramey, Judge. (1) A cause of action accrues when the defendant’s liability becomes complete. Kennedy v. Burrier, 36 Mo. 128-130 ;■ Mundt v. Bailroad, 31 Wis. 451. A debt accrues upon a contract, unless otherwise pro-' vided, when the claimant has fully performed, and not before.

—Hon. W. W. Rucker, Judge. The court erred in declaring the law in the second instruction given for the plaintiff. The first instruction for the defendant, placing the burden of proof upon the plaintiff, properly declared the law. Andretvs v. Costigan, 30 Mo. App. 29; Baker v. Camipbell, 32 Mo. App. 529; Scott v. Pdley, 49 Mo. App. 251.

—Hon. C. Hammond, Special Judge. (1) The defenses, as set up in the answer, were, first, alteration, and, second, want of consideration with want of good faith in the purchase of the note by the plaintiff.

—Hon. Jno. A. Hooeaday, Judge. (1) When the finding of the court is so manifestly against the evidence as it is in this case, this court ought, in the interest of justice, to interfere and set the judgment aside. Scott v. Broclavay, 7 Mo. 61; Hewitv. Dougherty, 25 Mo. App. 326; Klosterman v. Kaye, 39 Mo. App. 60; Moore v. Railroad, 28 Mo. App. 622; Garrett v. Greenwell, 92 Mo. 120.

—Hon. John A. Ho chad ay, Judge. ' STATEMENT OF THE CASE BY GILL, I. Plaintiff’s counsel have prepared a very lucid statement, which, after a careful reading of the record, we find substantially correct; and which, with some additions, eliminations and corrections, we adopt. This is an action to recover damages on account of personal injuries sustained by plaintiff at the, town of Higbee, on defendant’s railroad, December 22, 1891, by reason of defendant’s negligence.

—Hon. Jno. A. Hockaday, Judge. (1) The bill or petition in this case failed to state facts sufficient to constitute a cause of action, and the objection to the introduction of any proof should have been sustained. The right of a surety to be subrogated to any securities of the principal debtor, held by the creditor, does not come into existence until the creditor has been completely satisfied; and such a thing as subrogation pro tanto is unknown to equity doctrines.

—Hon. E. J. Broaddus, Judge. STATEMENT BY GILL, J. Omitting the formal portion, plaintiff’s petition states: “That the defendant is indebted to plaintiff in the sum of two hundred and twenty-six ($226) dollars, in this: that on the twenty-sixth day of July, 1890, defendant, being indebted to one E. H. West in the sum of $226, and- at the same time, the said West being indebted to plaintiff in the said s.um of $226, he, the said defendant, in consideration of his own said…

—Hon. E. J. Broaddus, Judge. The debt due Stone by the testimony of Kenyon, George and Elijah WolfsMll, and their evidence in the case relating to the assumption of this debt by Wolf-shill Brothers clearly shows that this was a debt of WolfsMll Brothers, and the finding in the circuit court should have been for plaintiff, allowing his claim against the estate of Wolfskill Brothers.

—Hon. E. J. Broaddus, Judge. The court erred in construing the contract sued on to create a several obligation only. The contract is joint and several. E. S. 1889, sec. 2384. Davis $ Rankin v. Shafer et al., 50Fed. Eep. 764. The making of a joint promise is implied from the u'se of such words as “we promise,” “we agree,” etc. Lawson on . Contracts, sec. 116. (1) Was the liability of the subscribers to any one of the contracts in evidence joint or several!

—Hon. A. M. Woodson, Judge. (1) It is not the law, if all the facts stated in said instruction were shown, that the corporation would be bound, or a liability created against it, when the facts show that the money never went into the corporation, but for the sole and private use of Graham, and never ratified. Windsonv. Bank, 18 Mo. App. 665; Savings Ass’n v. Printing Co., 25 Mo. App. 642.

—Hon. Silas Woodson, Judge. The sole question in this case is whether the ordinance is void as being repugnant to the general state law. The city has power to declare what shall constitute nuisances, and to prevent, abate and remove nuisances within the city and one mile outside. R. S. 1889, subdiv. 10, sec. 1255, p. 364. To enforce ordinances by fines to be collected by suit.

--t-Hon. Wm. S. Herndon, Judge. (1) The first point we shall notice is the refusal of the court to dismiss the suit upon the .motion of the defendant, on the ground that the plaintiff was a nonresident as shown by the pleadings. R. S., sec. 2915; Snell v. Owens, 3 Mo. 226; Gov. of Missouri v. Rector, 1 Mo. 638; Brown v. Ravenscroff, 1 Mo. 397; Posey v. Buchner, 3 Mo. 605; Snowden v. McDaniel, 7 Mo. 313; Osprey v. Jenkins, 9 Mo. 643.

—Hon. Pabis C. Stepp, Judge. (1) The testimony of witness Mrs. Crofford was . incompetent. She was the wife' of defendant J. W. Crofford. There was no competent testimony to show any divorce. Even if divorced she was not a competent witness as to any transactions occuring before such divorce. (2) The testimony of the witness Mrs. Baxter was incompetent. She was the wife of inter-pleader R. C. Baxter. She was not a party to the suit.

—Hon. E. J. Broaddus, Judge. (1) The court erred in sustaining defendant’s objection to the amended articles of incorporation of plaintiff, for amendment was in strict conformity to the statutes of the state of Wisconsin governing the amendments of the articles of incorporation. R. S. 1878 (Wis). sec. 1774. The objections of defendant are trivial’ and should have been overruled.

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

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

<p>Appeal from the St. Louis City Circuit Court.—Hon. Daniel Dillon, Judge.</p> <p>This action lies, since the incumbrance is inextinguishable and full damages can be recovered. Burén v. Mubbell, 54 Mo. App. 617-624; Kellogg v. Malm, 50 Mo. 496; s. o., 62 Mo. 429; Taylor v. Reitz, 87 Mo. 660; Roberts v. Levy, 3 Abb. Pr, (N. S.) 311.</p>

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

Louis City Circuit Co%wt.—Hon. Daniel Dillon, Judge. Held: Dobbins v. Edmonds, 18 Mo. App.. 307; Barrie v. Seidel, 30 Mo. App. 559-562; Anderson v. Frank, 45 Mo. App. 486; Ozark L. Co. v. Chicago L. Co., 51 Mo. App. 555; Stumpfv. Mueller, 17 Mo. App. 289. In an action for goods sold and delivered, proof of a mere executory agreement to sell is not sufficient.

Louis City Circuit Court.—Hon. James E. Withrow, Judge. The ruling of the court below, requiring the appellant to first exercise his right of peremptory challenge in the trial of the interplea was reversible error. R. S. see. 6081; State v. Steeley, 65 Mo. 222 and 223; followed in State v. Begonia, 69' Mo. 485; Brownell and Wight Có. v. Barnard, 116 Mo. 670; Beering v. Collins, 38 Mo. App. 73; Spooner, v. Boss, 24 Mo. App. 399; 'State v. Barker, 26 Mo.

<p>1. Practice, Appellate: matter of exception. If an entry in a book of account which was rejected as evidence by the trial court is not made a part of the bill of exceptions, this court can not adjudge its legal effect or materiality.</p> <p>2. -: book account: non-prejudicial error. Held, in the course of discussion, that the erroneous rejection of an entry in a book of account is not prejudicial error, when it appears that another like entry was ^received in evidence, and that both entries rest upon the trustworthiness of the same person.</p>

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

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

Louis City Circuit Court.—Hon Leroy B. Valliant, Judge. Defendant’s instruction offered at the close of the testimony, that, “upon the evidence adduced, plaintiff is not entitled to recover,” should have been given.

<p>1. Mayor of City: function of judiciary. The immunity from judicial control appertaining to the office of governor of the state, or to the presidency of the United States, does not attach to the mayoralty of a city.</p> <p>2. -:-: mandamus. Mandamos is a proper remedy to compel the mayor of a city to revoke permits issued by him in violation of a municipal ordinance; and the remedy may be invoked by people of the city having no special interest in the premises.</p>

<p>Costs: EFFECT OF REVERSAL OF JUDGMENT BY APPELLATE COURT. When the judgment of the trial court is reversed on appeal, the reversal entitles the successful party t,o the costs which accrued in the trial court after thd rendition of the judgment and to the costs in the appellate court, including the transcript fee. The costs o£ the trial prior to the rendition of the judgment will abide the final determination of the suit.</p>

<p>1. Unauthorized Act of Agent: ratification bt acceptance of-proceeds. A principal does not ratify the unauthorized act of his agent by accepting the proceeds or fruits thereof, if knowledge of it did not come to him in time to enable him to repudiate the entire transaction without essential injury.</p> <p>2. Practice, Trial: failure of proof of cause of action pleaded. No recovery can be had, when the evidence does not tend to establish the cause of action pleaded.</p>

Court.—Hon. Cyeus A. Anthony, Judge. (1) The seventh instruction, in the nature of a demurrer to the evidence, should have been given, and the court erred in refusing it. The defendant received the check for collection, and having adopted the usual course pursued by banks in that locality, without avail, the loss would fall on the plaintiff, and the bank had the right to charge it back to him.

—Hon. Heney M. Bamey, Judge. (1) As between plaintiff and Jewett & Co., under the contract between them, plaintiff had a right to take the property. Benjamin on Sales, sec. 425, and note 92; Tiedeman on Sales, sec. 144; Parmelee v. Catherwoocl, 36 Mo. 479; Wangler v. Franlclin, 70 Mo. 659; Tufts v. Thompson, 22 Mo. App. 564-568. This being so, plaintiff’s instruction number 1 should have been given.

—Hon. A. M. Woodson, Judge, (1) “If rescission be relied upon as a defense to a contract, it must be specially pleaded. Proof of the fact will not be admitted under a pleading which only denies the making of the contract and avers a breach of it.” Biggins v. Bailroad, 73 Mo. 598, 607; Brown v. Welden, 27 Mo. App. 251, 260. (2) There was substantial evidence on all points necessary to a recovery by plaintiffs, and the case should have been submitted to the jury.

—Hon. H. M. Ramey, Judge. (1) It was admitted that the city, in 1880, duly established the grade of Water street. The plaintiff’s uncontradicted testimony is that the first house was built in 1883—the last one four years thereafter. The court therefore erred in instructing the jury to consider the difference in value of the entire property, houses as well as lots, caused by the grading.

—Hon. Ohas. H. S. Goodman, Judge. (1) In action by father, seeking to recover more thg.n compensatory damages against one who has debauched his daughter, he must allege and prove that the debauching was the result of seduction. Smith v. Young, 26 Mo. App. 575; Comer v. Taylor, 82 Mo. 346; Bellv. Biniter, 29 Ind. 267; Delvee v. Boardman, 20 Iowa, 446.

—Hon. Jno. A. Hockaday, Judge. (1) The trial court erred in overruling plaintiff’s motion to strike out parts of defendant’s answer, as the same constituted no defense to plaintiff’s cause of action. Arnold v. School District, 78 Mo. '229. The school board had recognized the performance of the contract, and any matters set up in said parts of said answer going to show a failure to perform the contract during that period were concluded. Armstrong v. School District, 19 Mo.

—Hon. Jno. A. Hockaday, Judge. (1) The court below erred in refusing to let defendant cross-examine the witness T wyman in regard to his having testified before the' grand jury, etc. Muller v. Hospital Association, 73 Mo. 242; s. c., 5 Mo. App. 390; State v. Miller, 100 Mo. 606; State v. 'Taylor, 118 Mo. 153-159. And that was the way to lay the proper foundation to afterward impeach the witness by the testimony of members of the grand jury and others.

—Hon. W. W. Rucker, Judge. (1) The action of the first attaching creditors operated as an abandonment of their attachment proceedings, and the attached property was thereby released from the attachment lien.

—Hon. Rudolph Hirzel, Judge. (1) One who lends money to another to enable him to pay the purchase price of the land stands in the same position as any other creditor, and a promise to give a lien in such case is within the statute of frauds. Wooldridge v. Scott, 69 Mo. 669; Price v. Estill, 87 Mo. 386; Price v. Courtney, 87 Mo. 395. (2) It will be observed that the evidence nowhere shows a lien agreement or a promise to give such lien.

—Hon. D. W. „ Shackleford, Judge. (1) At the close of plaintiff’s evidence defendant •prayed a demurrer to the defendant’s evidence. The court refused to sustain the demurrer. This was error. •The plaintiff’s own evidence showed him guilty of such gross contributory negligence as barred a recovery. Purlv.

—Hon. D. W. Shackleford, Judge. (1) The case should not have been tried either by the justice or the circuit court on the plea in abatement. The long established rule that a plea to the merits waives a plea in abatement. in attachment suits remains unchanged. Cannon v. McManus, 17 Mo. 345; Little v. Harrington, 71 Mo. 390; Beattie v. Stocking, 70-Mo. 196; Hubbard v. Quisenberry, 28 Mo. App. 20; Meyers v. Boyd, 37 Mo. App. 532.

Louis City Circuit Court.—Hon, Jacob Klein, Judge. Appellant is not an insurer with respect to the baggage of a passenger on its cars, and is not liable as to such baggage, either as an inn-keeper or common carrier. Hutchinson on Carriers [2 Ed.], sec. 700a; 2 Redfield on the Law of Railways, page 227, note a; Thompson on Carriers, page 531; Scaling v. Pullman Palace Gar Go., 24 Mo. App. 32; Welch v. Pullman Palace Car Co., 16 Abb. Pr.

<p>Mechanics’ Liens: piling op two liens on same account: burden op proop. After one valid meehanies’ lien has been filed on an account, no further mechanic’s lien may be filed thereon against the samo property. But, to warrant the rejection of such second lien, it must affirmatively appear, both that the first lien was against the same property, and that it was valid, the burden of proof being on the defendants to the action.</p>

Louis City Circuit Court.—Hon. Leboy B. Valliant, Judge. The subject-matter of this suit was res adyudicata. The plaintiff brought a suit on December 1, 1891, for a part of his supposed claim against defendant before Squire Manning, and recovered final judgment thereon for the sum of $232.08, which was paid before the institution of this suit, and that suit, under the circumstances of this case, was and is a bar to this action, under the following authorities.

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. (1) The work and labor done and materials furnished by respondent1 were not used in the erection of the building already on the ground when Haydock took the lease; nor were they afterward connected therewith so as to become a part of the building, and to go and pass with it as a constituent part thereof. Hence there can be no lien on the building, nor the leasehold estate.

Louis City Circuit Court.—Hon. Daniel D. Fisher, Judge. The plaintiff, , having confused its six claims by charging them together in one account, and by having accepted from the Fehlhammer Planing Mill Company its one draft for an amount covering its demand against the six independent houses, has failed to preserve the unity and identity of its several claims, and has thereby lost its right to file a lien against any one of the buildings.

<p>1. Mortgages: rental op premises. Until the mortgagee takes possession, the mortgagor is entitled to the rents of the mortgaged premises.</p> <p>2. --:-. Where, subsequently to the execution of the mortgage, the mortgagor assigns the rents of the premises to the mortgagee as additional security for the payment of the mortgage debt, the assignment comes within the foregoing rule, and the mortgagee is not entitled to the rents accruing after demand therefor and condition broken, but before any entry.</p>

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

<p>1. Evidence: parol evidence in variance op written contract. ■When a contract is reduced to writing, proof of prior oral negotiations between the parties to it is inadmissible to vary or alter its terms.</p> <p>2. Instructions:.refusal op instruction embodying proposition already declared. The refusal of an instruction is warranted, when the proposition embodied in it is contained in another instruction given by the court.</p>

<p>Real Estate Agent: pooling of commissions. When both parties to a»trade are represented by agents, these age*nts lose their right to commissions, if, without the consent of their principiáis, they agree to pool or divide the same.</p>