Volume 6 — Missouri Appeal Reports

Louis Circuit Court. A judgment rendered against a party not living at the time is void. — Bollinger v. Ohouteau, 20 Mo. 89. A void judgment may be assailed collaterally. — Higgins v. Peltzer, 49 Mo. 152; Fiihian v. Monks, 43 Mo. 502. The cestui que trust, as well as the trustee, should have been made a party. — Story’s Eq.

Louis Court of Appeals. Fraud may be inferred from facts and circumstances shown in evidence. It is not necessary that allegations of fraud be sustained by that direct and plenary proof which excludes all presumption.— Watldns v. Wallace, 19 Mich. 57; Kaine v. Weigley, 22 Pa.

<p>Where a principal and agent are sued for money had and received to plaintiff’s use, and the material issue to be tried is whether the agent received the money in question on his own account and paid it to his principal in discharge of an existing debt, or -whether it was received by him as agent, and the case is submitted to the jury on instructions which ignore the question as to whether the agent received the money as agent, the judgment will be set aside, though there is evidence tending to prove the essential facts necessary to support the finding.</p>

<p>Appeal from the St. Louis Circuit Court.</p> <p>The plaintiff should have proved its incorporation. — Banky. Kerlin, 53 Mo. 382 ; Holloway v. Railroad Co., 23 Texas, 465; Bank v. Simonton, 2 Texas, 531; Lord v. Bigelow, 8 Yt. 445; Hargrave v. Bank, 1 111. (Breese) 84; Bank V-. Stearns, 15 Wend. 314; Dutchess Cotton Man. Co. v. Davis, 14 Johns. *239 (245) ; Ang. & Ames on Corp. (9th ed.) 632, chap. 18. The proof of publication of notice was irregular and void. — Scammon v. City of Chicago, 40 111. 146; Armstrong v. Scott, 3 Greene (Iowa), 433; Stine v. Wilkson, 10 Mo. 75.</p> <p>Time of notice is determined from the day of the first insertion to day of sale. — Leffier'y. Armstrong, 4 Iowa, 482; Kellogg v. Carrico, 47 Mo. 157.</p>

Louis Circuit Court. Where a married woman having a separate estate has during coverture made a contract binding thereon, and afterwards becomes dis-covert, a proceeding in equity to charge that estate cannot be maintained. The remedy is at law. — King v. Miltalberger, 50 Mo. 182; Roberts v. Mosely, 50 Mo. 182 ; iShattock v. iShattock, L. R. 2 Eq. 182. The note created no lien upon the separate estate. — Kimm v. Weippert, 46 Mo. 532 ; Maguire v. Maguire, 3 Mo. App. 458.

Louis Circuit Court. The court has the power to allow the contractors to be brought in and made parties defendant. — Fosters. Skidmore, IE. D. Smith, 703; Scoville v. Ohapman, 17 Ind. 470; Witte v. Meyer, 11 Wis. 295 ; Hartman v. Sharp, 51 Mo. 30; Mann v. Schorer, 50 Mo. 306. Where the lien is given, the statute is to be liberally construed and the lienor allowed the greatest latitude in perfecting his lien. — Goodin v. JDuross, 5 Mo.

<p>Appeal from St. Louis Circuit Court.</p>

Louis Circuit Court. The material-man must show that the materials were actually used in the construction.— Simmons v. Carrier, 60 Mo. 581; Fitzpatrick v. Thomas, 61 Mo. 515; Chapin v. Paper - Works, 30 Conn. 461.

<p>There can be no recovery in damages against a county where the act complained of is either a wrongful or negligent way of repairing a county road, or an unauthorized trespass upon private property. If the former, the county is not liable, because the County Court was performing functions imposed upon it by the general road-laws of the State, and was acting for the State. If the latter, the individuals only are liable, and no the county.</p>

Louis Circuit Court. Equity will relieve parties from the consequences of a mistake of law as well as of fact, where the mistake is such a gross mistake of a plain principle of law as to involve great mental imbecility or credulous confidence in the opinion of others, or where the circumstances of the case would tend to deprive one party of his property and confer the same upon another without any consideration. — Story’s Eq.

Louis Circuit Court. It is not necessary to allege a year’s residence, where the cause of action accrued within this State. — Cheatham v. Cheatham, 10 Mo. 296. The jurisdiction is determined by the whole record, and not by isolated portions. — Brown v. Woody, 64 Mo. 548.

<p>The form given in the act concerning the claim and delivery of personal property is merely a general guide, hut must be intelligently followed; and in an action before a justice of the peace, where the petition omits to state the jurisdictional fact that the property was detained “by the defendant” the proceeding is properly dismissed.'</p>

Louis Circuit Court. The subcontractor who asserts a lien-claim will be required, at the institution of his claim, to furnish every facility for investigating. — Russell v. Bell, 44 Pa. St. 47 ; McWilliams v. Allan, 45 Mo. 573 ; Graves v. Pierce, 53 Mo. 423; Lee v. Burlce, 66 Pa. St. 336. The account must show the items. — Atkins v. Settle, 17 Minn. 353. Variance. — Van Court v. Bushnell, 21 111. 624; Stein v. Shultz, 23 111. 649.

<p>In an equity proceeding in the Circuit Court, that court at Special Term made a decree finding all the facts in favor of plaintiff (relator here), but denying him the relief to which he was manifestly entitled on the facts as found and recited in the decree. Plaintiff appealed to the General Term, which reversed the decree and remanded the cause. Plaintiff then appealed to the Court of Appeals, which reversed the order of General Term remanding the cause, and entered such a decree as plaintiff ought to have had in the Circuit Court on the facts found. Defendant appealed to the Supreme Court, which held that although General Term might better have entered a decree in accordance with the facts found, it committed no error in refusing to do so, and that the Court of Appeals erred in reversing the order remanding the cause and in rendering the decree which the Circuit Court should have rendered at the Special Term; and the Supreme Court reversed the judgment of the Court of Appeals and remanded the cause to the Circuit Court. Plaintiff then moved in the Circuit Court for a final decree, on the ground that the facts were found by the interlocutory decree; and on the refusal of the Circuit Court to enter final decree, plaintiff applied for a mandamus. Held, that on this state of facts the judgment of the Circuit Court reversing and remanding the cause stands; that the Court of Appeals cannot, interpolate any provisions into that order; and that the application for a mandamus must be denied.</p>

Louis Circuit Court. A trustee’s sale under a deed of trust passes no title when payment of all sums due under the deed of trust, and interest and costs, are tendered at and prior to the sale. — Jaclcson v. Grafts, 18 Johns. 110 ; Campbell v. Macomb, 4 Johns. Ch. *534 ; Burnett v. JDenniston, 5 Johns. Ch. *35 ; Bdwards v. Insurance Go., 21 Wend. 367 : Kortright v. Gady, 21 N. Y. 343; Arnot v. Post, 6 Hill, 65.

<p>Error to St. Louis Circuit Court.</p>

<p>1. Where a tenant holding under the owner of the fee abandons the premises, and delivers the keys to a holder of a deed of trust on the premises, who advertises and sells under the deed of trust, and, having become the purchaser at the foreclosure sale, takes possession by putting in a tenant of his own, this is an unlawful possession by disseisin; and, after written demand from the original owner, the purchaser under the deed of trust and his tenant are guilty of an unlawful detainer.</p> <p>2. The abandonment of premises by the tenant is a'restoration of the occupancy of the landlord.</p> <p>8. The question of title cannot be raised when one is in by disseisin.</p>

Louis Circuit Court. The delivery of the bill of lading, together with the drafts drawn against the proceeds, transferred the title to the goods. — Railroad Co. v. Phillips, 60 111. 190 ; Railroad Go. v. Wagner, 65 111. 197; Broadwell v. Howard, 77 111. 305 ; Railroad Go. v. Kerr, 49 111. 458 ; Banlc v. Dearborn, 115 Mass. 219 ; Banlc v. Bailey, 115 Mass. 228 ; Newcomb v. Railroad Co., 115 Mass. 230; Banlc v. Crocker, 111 Mass. 163.

Louis Circuit Court. Ordinary care implies the use of such watchfulness and preventions as are fairly proportionate to the danger to be avoided, judged by the standard of common prudence and experience. — Guppen v. Railroad Go., 4 N. Y. 34; Mackey v. Railroad Go., 27 Barb. 542 ; Railroad Go. v. Goddard, 25 Ind. 135 ; Railroad Go. v. Terry, 8 Ohio St. 570; Railroad Go. v. Mc-Tigh, 46 Pa. St. 316 ; McKay v. Railroad Go., 35 N. Y. 75.

<p>Where an attorney is retained for a particular ease, and does work, and is discharged without fault on his part, the only measure of damages is the price agreed to be paid. The nature of the engagement exempts the case from the rule by which the contract price, in ordinary cases of service, is made merely primS, facie evidence.</p>

<p>Appeal from St. Louis Circuit Court.</p>

<p>1. The use of a chattel may pass without the chattel itself permanently passing, and a bequest over of a chattel is good.</p> <p>2. “Where money bequeathed for life is not kept separate in any way, one entitled by will to the money after the death of the tenant for life may recover the sum bequeathed, with interest from the date of such death, in the form of a general money-demand against the estate of him to whom the bequest was made for life.</p>

Louis Circuit Court. Where the pleadings admit that plaintiff had full knowledge of the dangerous condition of the apparatus which caused his injury, the case should not be permitted to go to the jury. — Cummings v. Collins, 61 Mo. 520.

Louis Circuit Court. The executor had no authority of law to assign the notes of the estate except to creditors, legatees, or distributees, to the extent of their claims against the estate. — Wag. Stats. 89, sect. 40 ; Prosser v. Leatherman, 4 How. (Miss.) 240. And the executor, because the contract was an illegal one, in his suit against the bank would not have been estopped to recover. — Herman on Estop. 246 ; Magee v. Gregg, 11 Smed. & M. 77 ; Big. on Estop.

Louis Circuit Court. cited: Strong v. Insurance Co., 62 Mo. 289. There can be no implied warranty in this case, from the fact that where a party examines, or has an opportunity to examine, the quality or condition of a chattel in existence, the rule of caveat emptor does not admit of exception, and there can be no implied warranty under such circumstances. — Benj. on Sales (2d Am. ed), sect. 644 ; IPars. on Con.

<p>1. Where A. and B. contract, the fact that O. had an interest therein by reason ot' an agreement between him and A., to which B. was not a party, does not make C. a proper party plaintiff in an action on the contract against B..</p> <p>2. Tender is not necessary where, after the sale, the vendee states to the vendor that he will not receive the articles purchased.</p>

Louis Circuit Court. The paper signed by the insured was not his application or statement, but was the statement of the Hope Company’s agent. — Combs v. Insurance Co., 43 Mo. 150 : Plumb v. Insurance Co., 18 N. Y. 392. The action of the Hope Company’s agent operated as an estoppel in pais on that company to deny the validity of the policy. — Rowley v. Insurance Co., 36 N. Y. 550; Franklin v. Insurance Co., 42 Mo. 460; Union, etc., Co., v. Wilkinson, 13 Wall. 222.

Louis Circuit Court. The superintendent of insurance is a trustee, for the benefit of all the policy-holders of a company, of all securities deposited by a company with him. — 2 Story’s Eq. Jur., sect. 964; Buggies v. Chapman, 59 N. Y. 163; Bollo v. Insurance Co., 23 Gratt. 509 ; Pennebaker v. Tomlinson, 1 Tenn. Ch. Ill, 594 ; Smith v. Insurance Co., 2 Tenn. Ch. 727. And he is the proper party to distribute such securities. —The People ex rel. v. Chapman, 64 N. Y. 557.

Louis Circuit Court. Acts of limitation, unless they expressly discharge the debt, go to the remedy merely. — Carson v. Hunter, 46 Mo. 467. The death of the sole defendant does not abate the action. — Stats. 111. 97, sect. 11.

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Draffen v. City, 8 Mo. 397 ; The State v. Smith, 26 Mo. 226 ; City v. Merlott, 26 Mo. 233.</p> <p>cited: Hashed v. Farrar, 56 Mo. '497; Wickham v. Page, 49 Mo. 536.</p>

<p>Error to St. Louis Circuit Court.</p> <p>Without actual service on minor defendants, a decree in partition rendered against them is void. — Robbins v. Robbins, 2 Ind. 74; Daniel v. Hannegan, 5 J. J. Marsh. 48 ; Pond v. Doneghy, 18 Bolt. (Ky.) 558 ; Rutherfor dr. Richardson, 1 Head, 609 ; 46 Mo. 391; Dealer. McLaughlin, 49 Mo. 162 ; Hendricksr. McLean, 18 Mo. 32 ; 27 Mo. 103 ; 26 Mo. 65. Admissions made under a misapprehension of one’s legal rights cannot affect him. — Taylor r. Zepp, 14 Mo. 248 ; Terrill r. Boulware, 24 Mo. 254; Chouteau r. Goddin, 39 Mo. 229 ; Gamhart v. Finney, 40 Mo. 449 ; Smith r. Hamilton, 61 Mo. 83.</p> <p>cited: Wheaton v. Fast, 5 Yerg. 41; Deford r. Mercer, 24 Iowa, 118; Storrs v. Barher, 6 Johns. Ch. 166; 27 Barb. 595; Highley r. Barron, 49 Mo. 103; Ferguson r. Bell’s Administrator, 17 Mo. 347; Thomas r. Pullis, 56 Mo. 211.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Workman v. Campbell, 46 Mo. 309, 34 Mo. 149 ; Cook v. Elliott, 34 Mo. 586 ; College, etc., v. Kendall, 121 Mass. 528.</p> <p>cited: Amherst Acadjemy v. Cowles, 6 Pick. 427 ; Society v. Perry, 6 N. H. 164; George v. Harris, 4 N. H. 533; Comstock v. Howd, 15 Mich. • 237; Dartmouth College v. Woodward, 4 Wheat. 518 ; , Westminster College v. Gamble, 42 Mo. 411; Norton v. Janvier, 5 Harr. 346 ; Collier v. Society, 8 B. Mon. 68.</p>

Louis Circuit Court. Where a notary has no knowledge or information of the death of the maker of a promissory note and the appointment of an administrator, and makes ■ presentment at the place of business of the maker, making no presentment to the administrator, this is sufficient to hold the indorser. — Bateson v. Clarlc, 37 Mo. 31; DeWolf v. Murray, 2 Sandf. 166.

Louis Circuit Court. “Personal property purchased with the wife’s own means, in her own name, for her own use, becomes her separate property.” — Spaulding v. Day, 10 Allen, 96 ; Coughlin v. Ryan, 43 Mo. 99 ; Leakey v. Maupin, 10 Mo. 368 ; Clark v. National Bank, 47 Mo. 17 ; Qillelt v. Gamp, 19 Mo. 404; Gentry v. Reynolds, 12 Mo. 533. And is not subject to the payment of the husband’s debts. — Wag. Stats. 935,'sect. 14; Faddis v. Woolomes, 10 Kan. 56.

The contract between this association and its members is an insurance contract.— Bouv. L. Die., tit. “Insurance,” and “Insurance on Lives — Contract, 1 and 2 ;” Burrill’s L. Die., tit. “Insurance 1 Marsh, on Ins. 1, 52, 53; Bliss on Ins., sect. 3; May on Ins., sect. 1; HarrisonY. Miller, 7 Term Rep. 340 ; 7 Term Rep. 338.

<p>Warehouse-receipts made payable to bearer are not negotiable. Tbey are made negotiable only by written indorsement and delivery.</p>

Louis Circuit Court. One cannot act as attorney in fact for the creditor, and trustee to enforce collection by a sale of the debtor’s property. — Thornton v. Irwin, 43 Mo. 153; Stoffiel v. Schroeder, 62 Mo. 147; Roche v. Farnsworth, 106 Mass. 509 ; Montague v. Davis, 4 Allen, 369 ; Stewart v. Severance, 43 Mo. 322.

<p>Appeal from St. Louis Circuit Court.</p>

Louis Circuit Court. The Probate Court has the same jurisdiction of demands allowed and classified by the court as it has of those against estates of individuals. — McOartney v. Garneau, 4 Mo. App. 566 ; JBruening v. Oberschelp, 42 Mo. 276.

<p>1. The record in an action before a justice of the peace in St. Louis, to establish a stable-keeper’s lien, must show the jurisdictional fact that the action was brought before a justice of the ward in which the claimant resides.</p> <p>2. Where, in an action under the Claim and Delivery Act, the property has been taken from the owner, it is no defence for the captor to show that, at the time of the taking, a thii'd person claimed a lien upon the property, the having such a lien being merely an abstract right, amounting to nothing unless in some way enforced.</p>

<p>1. Where dangerous machinery is so placed that the danger is hidden, so that to an inexperienced person the machinery may appear safe, and an inexperienced employee, who had no warning of the danger, is injured by such machinery while in the regular course of his business, he is not necessarily precluded from recovering against his employer on the ground of contributory negligence.</p> <p>2. Where the language of a witness, though ambiguous, is fairly susceptible of an interpretation which makes out a primS, facie case for the plaintiff, it, is error to take the case from the jury.</p>

<p>Where a new trial is improperly ordered, the party objecting may save bis exception and stand upon his rights by refusing further to proceed in the trial court. Having done this, his objections against the order will be heard on appeal or writ of error.</p>

<p>1. Under the act of March 21, 1878, a lien for labor or material cannot fixed upon a part only of the road-bed of a public railway.</p> <p>2. Materials furnished for temporary structures only, and never incorporated in the permanent work, are not proper subjects, under the statute, for a lien upon the completed road-bed.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>The report of the appraisers, not being made under oath, did not preclude proof that the valuation was excessive. — Taylor v. Hayden, 18 Mo. 390 ; Frissell v. Fiches, 17 Mo. 537 ; Webb v. Hauser, 38 Mo. 210; Fassett v. Fassett, 41 Mo. 516; Tucher v. Allen, 47 Mo. 488. The plaintiff could only recover on the-contract contained in the lease, and not on the appraisement itself. — Qarrad v. Doniphan, 10 Mo. 161; Leonard v. Oox, 64 Mo. 32. No party is estopped by an admission made in ignorance of his rights, induced by an innocent, mistake of material facts. — Thrall v. Lathrop, 30 Vt. 307 ; Taylor v. Zepp, 14 Mo. 482 ; Dessaunier v. Murphy, 22 Mo. 95 ; Christianson v. Linford, 3 liobt. 215 ; Diehl v. Adams, 58 Pa. St. 443. There must be knowledge to establish a waiver. —.Haysler v. Owen, 61 Mo. 270 ; 24 Pa. St. 314; Yeats v. Ballentine, 56 Mo. 530; Smith v. Brady, 17 N. Y. 173 ; Wells v. Selwood, 61 Mo. 238 ; Knowlton v. Smith, 36 Mo. 507.</p> <p>Having gone into this appraisement, and got the opinion of the appraisers, defendant is estopped from setting up ignorance of his alleged rights. — Big. on Estop. 471; Thomas v. JPullis, 56 Mo. 211; Major’s Heirs v. Bice, 57 Mo. 384.</p>

<p>So far as a receipt is a mere acknowledgment of payment, it is not conclusive ? but if it is not a mere receipt, but constitutes and imports a contract, it is as any other written agreement, and cannot be contradicted or enlarged by parol testimony.</p>

Louis Circuit Court. Where a motion for rehearing has been filed after exceptions to the referee’s report have been overruled, an appeal will not lie until the motion is disposed of. — Oily v. Brown, 4 Otto, 415; 3 Otto, 412. Plaintiff cannot by his proof make out a different cause of action from that set out in his petition. — Merle v. Hascall, 10 Mo. 406 ; Murphy v. Wilson, 44 Mo. 313; Jones v. Louderpian, 39 Mo. 287.

Louis Circuit Court. The provision in the policy against “keeping or using ” the fluids and oils mentioned therein was violated by the insured keeping for use the burning-fluid used for lighting purposes. —Webb v. Insurance Go., 14 Mo. 3 ; Williams v. Insurance Go., 57 N. Y. 274; Mead v. Insurance Go., 7 N. Y. 530 ; Pindar v. Insurance Go., 38 N. Y. 364; Lee v. Insurance Co., 3 Gray, 592 ; Appleby v. Insurance Co., 54 N. Y. 253; Macomber v. Insurance Co., 7 Gray, 257 ;…

<p>1. In case of a purchase with express warranty, where there is no question of fraud, the vendee cannot insist upon returning the goods. There can, in such a case, be no rescission except by consent of parties, unless it was expressly agreed that the contract should be rescinded if there was a breach of the warranty.</p> <p>2. "Where there is such an agreement of rescission, there can be no action for the purchase-money until the property is first returned to the vendor in the same condition substantially as when sold, or until an unconditional tender thereof has been made.</p> <p>3. In such a case, a tender, to have the eifect of a return of the goods, must be such as that the other party has nothing to do but to signify acceptance to make the property in the chattel vest in him.</p>

<p>Appeal from St. Louis Court of Criminal Correction.</p>

Louis Circuit Court. Upon the application of one of two executors, the Probate Court may apportion commissions according to the services rendered by each executor. — Smart v. Fisher, 7 Mo. 580; Grant v. Pride, 1 Dev. Eq. 270; In re Walker, 9 Serg. & E. 229; Hope v. Jones, 24 Cal. 89; In re Isaacs, 2 Barb. Ch. 438; Hodge v. Hawkins, Dev. & B. 564. cited: Wag. Stats. 108, sect. 9 ; White v. Bullock, 4 Abb. App. Dec. 578.

<p>1. An insurance policy contained a stipulation that should “petroleum or its products ” he kept on the steamboat insured the policy should be void. In an action on the policy, testimony-was given tending to show that “ mineral sperm-oil,” the name of the oil used in lighting the boat, was a fancy name. A witness, being shown a bottle containing a fluid called “mineral sperm-oil,” was asked whether the odor of the oil indicated the presence of petroleum, no connection ‘between the oil used on the boat and that exhibited to the witness being shown. Held, that the exclusion of this testimony was proper.</p> <p>2. Where the insurer objects to the proofs of loss on the ground that certain particulars are not furnished, and that the proofs are made by an agent and not by the owner, and states that when the corrections are made the proofs will he received, it being known at the time of this promise to he physically impossible to have the corrections made and the proofs returned within the time required by the policy, if the assured, relying on the promise, complies with the insurer’s demands in the shortest possible time, and fulfils all the required conditions, except that the corrected proofs are not furnished until after the expiration of the thirty days limited in the policy, this is a substantial compliance with the terms of the policy respecting proofs of loss.</p>

<p>1. The interpretation of a contract will generally be governed by the law of the place where the contract was made; but questions of personal capacity and questions depending upon the subsisting domestic relations of parties will generally, upon a change of residence, be determined by the law of the domicile.</p> <p>2. "Where,' by the law of the domicile at the time of the marriage, the personalty of a married woman is her sole and separate property, such property, when brought into Missouri, will be exempt from execution to satisfy the husband’s debts without the intervention of a nominal trustee, the husband becoming trustee by operation of law.</p>

Louis Circuit Court, Contracts suck as that in issue are mere wagers, and will not be enforced. And where it appears that the parties intentionally adopted a legitimate form to cover a mere gambling or wagering transaction, or to overreach the law and evade the decisions of courts of justice, the mere parade of honest forms will not avail. — Waterman v. Bucldand, 1 Mo.

Louis Circuit Court. The sheriff, in executing the powers granted by a deed made by way of mortgage, does not act in his official capacity. — 'Tatum v. Holliday, 59 Mo. 422; The State ex rel. v. Griffith, 63 Mo. 545 ; Rich v. Key ser, 54 Pa. St. 86 ; Theriat v. Hart, 2 Hill, 380. — The sheriff, ex officio, is not legally bound to accept the position of trustee, and the faithful execution of the order of appointment is no part of his official duty. — Wag.

<p>1. Where it is manifest that the hill of exceptions does not contain all the evidence, an appellate court will not notice an objection that there is no evidence to support the verdict.</p> <p>2. In an action for malicious prosecution, the evidential facts that defendant stated all the facts and circumstances to competent counsel and acted upon the advice received, should not be specially pleaded, but evidence thereof is properly introduced under a general denial.</p> <p>3. The mere belief of defendant that plaintiff was guilty is immaterial; but where there is evidence tending to prove facts constituting reasonable grounds for the belief, it then becomes a pertinent subject of inquiry.</p>

<p>1. In an action in the nature of a trespass on the case for a private nuisance, it is not essential to a recovery that the plaintiff prove actual damage, but he may recover by establishing the violation of the legal right.</p> <p>2. One cannot, while erecting a building on his own ground, so use his own property as to needlessly cause injury to his neighbor; and an instruction that plaintiff cannot recover for any injury caused by the defendant while constructing his improvements is erroneous.</p> <p>3. In an action for nuisance, plaintiff can recover only such damages as had accrued prior to the bringing of the suit.</p>

Louis Circuit Court. The account is insufficient.— Lowis v. Gutter, ante, p. 54. No delay can be granted for the purpose of bringing in other defendants not served. — Wag. Stats. 1007, sects. 4, 5 ; p. 1010, sects. 19, 20 ;. Ashburn v. Ayres, 28 Mo. 75. The service of the notice was insufficient. — Wag. Stats. 911, sect. 19; Brown v. Brown, 2 Sneed, 431; Masterson v. Be Glaire, 4 Minn. 163.

<p>Appeal from St. Louis Circuit Court.</p> <p>Merger. — Shehan v. Hampton, 2 Keyes, 304; Daugherty v. Jack, 5 Watts, 456; Ooolc v. Brightly, 46 Pa. St. 439; Phillips v. Clarkson, 2 Binn. 138; Pennington v. Coats, 6 Wheat. 277 ; Ohamleyv. Hausberry, 13 Pa. St. 16 ; Holtz's Appeal, 40 Pa. St. 200; Duncan v. Drury, 9 Barr, 332.</p> <p>When the owner of a fee-simple estate grants a lease of the premises of which he has the fee, he, as reversioner, is not entitled to involuntary partition against his lessees. He is not in possession; his lessees are ; they hold adversely to the reversioner; there is neither the unity of interest nor the unity of possession which the law requires. —Alexander v. Warrance, 17 Mo. 228; Lambert v. Blumenthal, 26 Mo. 471; Forder v. Davis, 38 Mo. 107; Shaw v. Gregoire, 41 Mo. 407 ; Gott v. Powell, 41 Mo. 449 ; Wommack v. Witmore, 58 Mo. 448 ; Brown v. Brown, 8 N. H. 93 ; Phelan v. Eeelley, 25 Wend. 389 ; Miller v. Miller, 9 Abb. Pr. (n. s.) 444. Merger. — Johnson v. Johnson, 7 Allen, 196; Boston v. Gondit, 19 N. J. Eq. 394 ; Blodgett v. Hildreth, 8 Allen, 186 ; McConnell v. Kibbe, 43 111. 12; Oook v. Webb, 19 Minn. 167; Glark v. Glark, 56 N. H. 105 ; Buff on v. Dean, 4 Gray, 385; Pratt v. Bank of Bennington, 10 Vt. 293; Sherman v. Abbott, 14 Pick. 448.</p> <p>Merger. — 4 Kent’s Comm. 99, 100; 3 Prest, on Conv. 24, 89, 90, 320, 321; 5 Williams, 382, top pp. 370, 373 ; Badely v. Vigurs, 26 Eng. Law & Eq. 144; 3 Johns. Ch. 53 ; Atkinson v. Angert, 46 Mo. 516 ; Miller v. Talley, 48 Mo. 503. Partition. — Reinhardt v. Wendeck, 40 Mo. 577.</p>

<p>1. Where one with whom a contract was made has since died, in order to exclude the other party as a witness it must appear that the deceased was a party to the cause of action; and if deceased was acting for another in making the contract, he was not a party to the cause of action; and where there is nothing to show that he acted for himself, hut the essential issue is for what principal he acted, his death does not disqualify as a witness the other party to the contract.</p> <p>2. Where the chief clerk employed to attend to the general business in the office of a general agent of insurance companies made a contract for repairing a house insured in one of the companies represented by the agency, and which had been injured by fire, in the absence of any evidence of the clerk’s authority to bind the agent individually, or of any assumption on his part to so bind his employer, or of ratification, or even knowledge, of the contract on the part of the agent, and where the contractor knew that the insurance company, and not the agent, was the principal party, such contract will not bind the general agent personally.</p>

<p>Laws of exemption and homestead have no extra-territorial force, and proceeds of property exempt from execution in another State are not on that account protected from execution when found in this State. —Boy-kin v. Edwards, 21 Ala. 261. When property is sold with intent to leave the State, the proceeds are not protected by the statute. The intend to leave the State withdraws therefrom the protection of the statute. — The State v. Davis, 46 Mo. 108; Jordan v. Godman, 19 Texas, 275; Trawicle v. Harris, 8 Texas, 312 ; Tenney v. Sly, 44 Ind. 269 ; Orr v. Box, 22 Minn. 485. Rights of homestead and exemption are of favor, and are not vested rights. — Sparger v. Gumpton, 54 Ga. 359. And affect only the remedy. — Helfenstein v. Gave, 3 Iowa, 287 ; Nuvall v. Hayden, 8 Iowa, 140 ; Morgans. Neville, 74 Pa. St. 52. A wife has only a privilege, and has no estate in a homestead in Kansas ; when she consents to a sale, her whole interest is gone, no matter what motive she had in consenting. — Jenness v. Gutter, 12 Kan. 500.</p> <p>Homestead laws should be liberally construed, for the purpose of securing to families homes protected from creditors 'of the heads of such families. — Vogler v. Montgomery et al., Nev. Rep. ; Gox v. Wilder, 2 Dill. 46 ; McFarland v. Goodman et al.‘, 13 Am. L. Reg. n. s. (o. s., vol. 22) 697 ; Duester v. Bill et al., 11 Mo. 114; Gromb v. Murphy, 24Wis. 365.</p>

<p>1. It will not be inferred that the husband intended to bar his widow of her absolute statutory allowance of $400 from the fact that he made a general disposition of his property by will, wherein he bequeathed to her $400. An intent to bar the widow of this legal right by legacy must clearly appear, at least by manifest implication from provisions in the will inconsistent with the legal right.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Bank v. Markley, 1 Dana, 373; Prescott v. Hubbell, 1 Hill Eq. 214; Williams v. Gable, 10 N. J. Eq. 543 ; Walker v. Walker, 25 Ga. 76 ; Brioker v. Lightner, 40 Pa. St. 199 ; Hunter v. Hunter, 50 Mo. 445 ; Martin v. Smith, 1 Dill. 85.</p> <p>cited : Dyer v. Brannock, 2 Mo. App. 443 ; Valle v. Oberhaus, 62 Mo. 81; Gray v. Yates, 7 Cent. L. J. 276; Hunter v. Hunter, 50 Mo. 445 ; Bobb v. Woodward, 50 Mo. 103; Thomas v. Matthews, 51 Mo. 107; Callaway County Court v. Holley, 31 Mo. 393; Rogers v. Broion, 61 Mo. 191.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>The city is liable for negligence in maintaining and managing the fire-department. — Bailey v. New York, 3 Hill, 612; Oliver v. Worcester, 102 Mass. 499 ; Richmond v. Long, 17 Gratt. 380; Eastman v. Meredith, 36 N. H. 284; Shear.' & Redf. on Neg. (1st ed.), sect. 120; Thurston v. The State, 51 Mo. 511; Rochester Ins. Go. v. City of Rochester, 3 Comst. 467 ; Dayton v. Pease, 4 Ohio St. 94; Purse v. New York, 3 Hill, 612; Blake v. St. Louis, 40 Mo. 569 ; Hilsdorfv. St. Louis, 45 Mo. 97.</p> <p>cited: Fisher v. Boston, 104 Mass. 87; Hafford v. New Bedford, 16 Gray, 297 ; Howard v. San Francisco, 51 Cal. 52; 2 Dill, on Mun. Corp., sect. 774.</p>

<p>A. and D. owned adjoining lots in a city addition. D. had his lot surveyed hy. the surveyor who laid out the addition, and commenced to build his house up to the western boundar3'-line. A., relying upon D.’s survey, measured off twenty-five feet westward, and built up to his western boundary-line, finishing his house months before D. finished his, and, by permission, used D.’s fence for the eastern wall of his coal-shed. Eight years afterward, A. discovered that D. encroached upon his lot four inches, and commenced an action of ejectment. Held, that these facts constitute an estoppel, and that A.’s ignorance of the true line was immaterial, the question being one of estoppel by acts in pais.</p>

<p>The words “I give and bequeath to A. all my worldly goods, consisting of household furniture, clothing, bed and bedding, money, and cattle; likewise my house and lot I now occupy,” contained in a will, are ineffectual to pass other real estate owned by the testator at the date of the will and at the time of his death.</p>

Louis Circuit Court. Banks have power to borrow money, and to do every thing that is ordinarily done to secure its repayment. — Curtis v. Leavitt, 15 N. Y. 50; Barnes v. Bank, 19 N. Y. 152 ; Leggett v. Banking Co., 1 Saxt. 541.

<p>Aureal from St. Louis Circuit Court.</p> <p>The creditors of the bank were the parties defrauded, and these assignees, the plaintiffs, do not represent them, and cannot object oil their behalf. —Hurlbut v. Carter, 21 Barb. 223 ; Fstabrook v. Messer smith, 18 Wis. 545. An assignee cannot avoid fraudulent transfers made by his assignor, nor take the rights of the creditors of the assignor in his charge or control. In this respect he is like an admirSstrator. — Brown v. Finley, 18 Mo. 375 ; George v. Williamson, 26 Mo. 190 ; Merry v. Fremon, 44 Mo. 578. Plaintiffs should have alleged rescission and tender. — Kimball v. Cunningham, 4 Mass. 502 ; Conner v. Henderson, 15 Mass. 320; Cook v. Gilman,34 N. H. 560 ; Fvans v. Gale, 21 N. H.. 240. In the absence of prohibition by statute, a corporation may purchase its own stock, hold it unextinguished, and reissue the same. — Bank v. Bruce, 17 N. Y. 507; Taylor v. Miami Fx. Co., 6 Ohio, 219.; State Bank v.Fox, 3 Blatchf. 433; Williams v. Savage, 3 Md. Ch. 452.</p> <p>The bank had no power to purchase its own stock. —- Gillett v. Moody, 2 N. Y. 479 ; Talmage v. Pell, 7 N. Y. 328; 1 Edw. Ch. 558 ;■ 4 Ala. 558; 15 Johns. 388; 2 Cow. 678 ; 5 Conn. 650; 3 N. Y. 430; 17 Barb. 397. Tender is not necessary to a recovery on a rescission, where the article is worthless. — Kneedler v. Sternbergh, 10 How. 67.</p>

The court erred in permitting defendants, by their oral testimony, to vary or add to the written agreement of Graves with defendants by testifying to their understanding in regard to losses.— Bruce, Admr., v. Beck, 43 Mo. 279 ; 1 Greenl. on Ev., sect. 275 ; Burris v. Blair, 61 Mo. 133 ; Bigelow v. Oollamore, 5 Cush. 226.

Louis Circuit Court. The objection to the sufficiency of the service of the garnishment is not well taken.

Louis Circuit Court. The original bond on which the suit was founded, or a certified copy thereof, should have been filed prior to the day of trial. This not having been done, the motion to dismiss should have been sustained. — Wag. Stats., p. 597, sect. 42; p. 1022, sect. 51; Rothwell v. Morgan, 37 Mo. 107 ; Pealce v. Bell, 65 Mo. 224; Hannibal, etc., R. Co. v. Knudson, 62 Mo. 569.

Louis Circuit Court. The carrier’s liability ceases when the goods are unloaded at their place of destination, and are ready for removal by the consignee. — Whart. on Neg., sects. 570, 571.

Louis Circuit Court. The promise is based upon a valuable consideration moving between the promisor and promisee, from which the promisor derived an actual benefit and from which he anticipated a benefit, in view of which the promise was made, and hence the promise was original and not collateral. — Cross v. Richardson, 30 Yt. 641; Kutzmeyer v. Evans, 27 N. J. L. 371 Farley v. Cleveland, 4 Cow. 432; Marks v. Bank, 8-Mo. 316; Can v. Cassell, 34 Mo. 513; Hudson v. Busby,. 48…

Louis Circuit Court. In an action before a justice of the peace, the instrument sued on must be filed with the justice. — Wag. Stats. 813, sect. 9; Sublett v. Noland, 5 Mo. 516; Lemon v. Cass, 60 Mo. 173. A married woman can make a valid lease of property conveyed to a trustee for her separate use, though the trustee be dead. — Baker v. Hall, 59 Mo. 265 ; Roberts v. Mosely, 51 Mo. 282. The husband and wife must be joined, where the wife is a necessary party. —Boat-mans.

Louis Circuit Court. A verbal undertaking by a broker selling on commission to guarantee all sales is a collateral undertaking, and within the Statute of Erauds.— Canmann v. Brunswick, 3 Mo. App. 586.

Louis Circuit Court. cited: Clarke v. Hammerle, 27 Mo. 55; Sawyer v. Railroad Co., 37 Mo. 240; Fitzgerald v. Haywood, 50 Mo. 216; Wonder v. Railroad Go., 32 Md. 420; Whart. on Neg., sects. 119, 214. The fact that the plaintiff knew that the wheel was ‘ 'badly worn ’ ’ does not show that he knew the danger. — Dale v. Railroad Co., 63 Mo. 455.

Louis Circuit Court. There must be direct or actual collision, and the injury must result from such actual contact, to make the railroad responsible for the penalty provided for in sect. 43. — Lafferty v. .Railroad Go., 44 Mo. 291; Railroad Go. v. Haskett, 10 Ind. 409.

Louis Circuit Court. The bonds to whose payment the defendant in error seeks to subject the fund awarded to the plaintiff in error were not only void when the defendant in error received them, but they bore upon them express notice of their invalidity. The act under which they were issued was set forth at large upon each bond.

Louis Circuit Court. To establish an agency of the husband on behalf of his wife, the evidence must be cogent and strong, and more satisfactory than would be required between persons occupying different positions. — Fystra v. Gappelle, 61 Mo. 578; Garnett v. Berry, 3 Mo.

Charles Circuit Court. Actual possession by the wife is unnecessary to entitle the husband to curtesy.— Reaume v. Chambers, 22 Mo. 37 ; Harvey v. Wickham, 23 Me. 15 ; Stephens v. Hume, 25 Mo. 349.

<p>1. A County Court has no power to bind the county to all contracts which the former may choose to make.</p> <p>2. The Swamp-Land Act provides that after the practicability of the work shall have been judicially determined by the County Court, commissioners shall be appointed; and where the County Court appoints commissioners ( upon whose report the work is declared to be impracticable, such commissioners have no recourse against the county for pay or expenses.</p>

Louis Circuit Court. The courts will not enforce contracts made by corporations in violation of their charters or the- statute under which they are created. — Railroad Go. v. Seely, 45 Mo. 212 ; Railroad Go. v. Hoagland, 30 Mo. 459; Blair v. Insurance Go., 10 Mo. 560; Pierce v. Railroad Go., 21 How. 442 ; Insurance Go. v. Bly, 5 Conn. 572; Greed v. Banlc, 11 Ohio, 492; Ilood v. Railroad Go., 22 Conn. 502; Railroad Go. v. Railroad Go., 5 Am. L. Reg.

<p>1. The master is bound to use ordinary care to procure suitable machinery, and to keep it in such a condition that the risk to his employees will not be greatly increased by wear and tear. Any such greatly increased risk is the negligence of the master, for which he is responsible.</p> <p>2. Where the evidence is conflicting, the question of negligence is for the jury, under proper instructions.</p> <p>3. Where the injury is the loss óf an arm, a verdict will not be set aside mere!}' because there was no evidence from which a jury could calculate with accuracy the actual money-loss to plaintiif. The jury may give a round compensation, talcing into consideration mental and physical suffering, although the case be not one for punitive damages.</p>

<p>In an action on a special tax-bill, under a statute which provides that the certified tax-bill shall be primé fade evidence that the work and materials were done and furnished, of the prices and the amount thereof, and of the liability of the person named as owner of the land charged with such bill to pay the same, the ordinance authorizing such work must be pleaded; but its introduction in evidence is not necessary to make out plaintiff’s primé fade case. The tax-bill itself so far implies a valid ordinance as to shift the burden of proof.</p>

<p>An architect has no lien for his services in drawing plans and specifications, and giving general directions to the builder under whose special superintendence the building was erected.</p>

<p>A petition in an action on a mechanic’s lien, which fails to state, at least hy necessary implication, that the improvement was erected under a contract with one having an interest or ownership in the land to he charged, does not state facts sufficient to constitute a cause of action, and 'is not aided by verdict or hy the statute of jeofails.</p>

Louis Circuit Court. “ There is no affidavit, not even a statement in the answer that defendant was not in collusion with the party asked to interplead. This is absolutely necessary.” —Simon on Interpl. 4, 5; 2 Story’s Eq. Jur., sect. 809 ; Story’s Eq. PL, sect. 291; Gibsonv. Goldthwaite, 7 Ala. 281; Shaw v. Coster, 2 Edw. Ch. 405 ; 8 Paige, 339 ; Tobin v. Wilson, 3 J. J. Marsh. 63.

<p>1. Associations and clubs, the objects of which are social or political and not for purposes of trade or profit, are not partnerships, and pecuniary liability can be fastened upon individual members thereof only by reason of their acts or the acts of their agents; and agency is not implied from the mere fact of association, but must be proved. A course of dealing may amount to proof of original authority.</p> <p>2. Individual members of such a club are liable for work done with their concurrence or subsequent approval, where the credit was given to members of the club.</p> <p>3. A verdict which has evidence, though weak, to support it, will not be set aside as being without evidence to support it.</p>

<p>Where it is agreed that shares of stock pledged as collateral security for a note may be sold by the pledgee at his discretion, and without notice to the pledgeor, the former is not bound to sell the stock at the request of the latter, immediately upon default; his refusal to do so may or may not be negligent. The pledgee may exercise his own judgment .as to the, sale of the stock, and is liable only for negligence.</p>

<p>1. In deciding on the propriety of discharging a prisoner on habeas corpus, ' there is no exercise of appellate jurisdiction; hut the prisoner may nevertheless he discharged where the court committing the prisoner exceeded its jurisdiction either as to matter, place, sum, or person.</p> <p>.2. Where a witness pertinaciously refuses to answer a lawful question, to compel obedience the court may order his imprisonment until he does answer, and need not limit his imprisonment to a given number of days; and this whether such contumacious refusal to answer be before the court or the grand jury.</p>

Louis Circuit Court. The court erred in referring the case. — Bishop’s Mar. & Div., sects. 21, 264 ; Wag. Stats-. 533, sect. 2. Consent will not confer jurisdiction.— Cooley’s Const. Lim. 398, note 2. A stipulation that the case may be referred is nugatory. — Storm v. Gorbett, 20 Mo. 350; Dodson v. Scruggs, 47 Mo. 285; The State v. Googger, 45 Mo. 64. The allowance of an attorney’s fee is in the nature of an allowance of alimony pendente lite. — Waters v. Waters, 49 Mo. 385.

<p>Appeal from St. Louis Circuit Court.</p>

Louis Circuit Court. It is only where there are proper data for calculation that damages can be recovered in an action on a contract. — Nightingale v. Gas-well, 18 Cal. 315 ; Forrest v. Caldwell, 5 La. An. 220 ; Masterton v. Mayor, etc., 7 Hill, 61; Griffin v. Colver, 16 N. Y. 489. There was no mutuality in the contract here sued on.. The defendants were not bound to furnish any employment to the plaintiff, and the petition does not contain the assignment of a breach.

<p>When the petition shows a cause of action in one plaintiff only, and the judgment is rendered in favor of both, such judgment is not merely irregular, but is erroneous, and must he reversed. It cannot be amended in the appellate court by striking out the name of the party in whose favor judgment was erroneously entered, as such a change would not be in affirmance of the judgment.</p>

Louis Circuit Court. The fund was the direct proceeds of the claimant’s property in the hands of his factor, and, as such,.a trust-fund, the title to which cannot be diverted by the acts of plaintiff, defendant, or by process. — Banning v. Blakely, 27 La. An. 257 ; Whitaker v. Chapman, 3 Lans. 155; Leniche v. Booth, 47 Mo. 385 ; Chapman v. Forsyth, 2 How. 202.

<p>A purchaser is not bound to take a doubtful title; and a court will not decree specific performance of a contract to purchase real estate when the agreement is for a good title and all reasonable doubt as to the title is not removed; and though the court may entertain a favorable opinion of the title, yet if that opinion may be fairly questioned by competent persons it will not decree specific performance.</p>

<p>Where, under a license from the city, dirt on a railroad-crossing is piled upon the street by the railroad company until the city shall remove it, and is left there at night without a light having been placed thereon, in violation of a city ordinance, the railroad company is liable for injuries suffered in consequence of the absence of a light.</p>

Louis Circuit Court. Betts contributed the press in controversy to the partnership. Thereafter he had no exclusive right to or interest in it as against his nopartner. — Church v. Knox, 2 Conn. 514; Lovejoy v. Bowers, 11 N. H. 404. It was subject to levy for his ■copartner’s debts. — Wiles v. Maddox, 26 Mo. 82; Shudy v. Bank, 62 Mo. 23.

Louis County Circuit Court. The oral agreement not having been embraced in the note, any evidence tending to prove it was inadmissible, for the effect of this evidence would be to vary the terms of a written contract.— Murdoch v. Gunahl, 47 Mo. 137 ; Koehring v. Muemming-Tioff, 61 Mo. 423; Chambers v. Board of Bducation, 60 Mo. 370; Hunt v. Johnson, 24 Mo. 509; Jones:y. Jeffries, 17 Mo. 577; Woodward v. McGaugh, 8 Mo. Í61; Singleton v. Fore, 7 Mo. 515 ; Raney.

<p>1. An appeal does not operate a supersedeas unless the statutory prerequisites-thereto are strictly complied with.</p> <p>2. An appeal-bond was given in the Circuit Court, conditioned to perform such judgment “as the Supreme Court may give, or such as the Supreme Court may compel the Court of Appeals or Circuit Court to give. ” The Court of Appeals affirmed the judgment, from which affirmance an appeal was-made to the Supreme Court without other bond. Held,, that such appeal did not operate a supersedeas.</p> <p>3. Mandamus will lie to compel a circuit clerk to issue execution where he has wrongfully refused to do so.</p> <p>4. The statute concerning appeals and supersedeas applies to appeals to the Supreme Court from the Court of Appeals, by virtue of the Constitution.</p>

<p>Appeal from St. Louis Circuit Court.</p>

Louis Circuit Court. Where one becomes a purchaser under circumstances which would make it a fraud to permit him to hold on to his bargain, he will be converted into a trustee for those who have been injured thereby.' — McJSTew v. Booth, 42 Mo. 189; Rutherford v. Williams, 42 Mo. 18 ; Blowey v. McMurray, 27 Mo. 118 ; Hammond, Admr.,Y. Gadwallader, 29 Mo. 170 ; Grumleyr. Webb, 44 Mo. 444 ; PeacocRs Administrator v.'Nelson, 50 Mo. 261.

<p>Appeal from St. Louis Circuit Court.</p>

Louis Circuit Court. When work has been done and money laid out under an agreement within the Statute of Frauds, a repudiation of the agreement does not prevent a recovery on the basis of what has been done. — Kidder v. Hunt, 1 Pick. 328; Seymour vBennet, 14 Mass. 266 ; Greer v. Greer, 18 Me. 16 ; Lode-wood v. Barnes, 3 Hill, 128 ; Gray v. Gray, 2 J. J. Marsh. 21; Allen v. Booleer, 2 Stew. 21; Keath v. Patton, 2 Stew. 38 ; Lucy v. Bundy, 9 N. H. 298; Basford v. Pearson, 9…

Louis Circuit Court. The estate of Louisa Kleiboldt, defendant’s wife, was a life-estate, with power of appointment. The contingent remainder to her heirs could only unite with her life-estate, so as to give her the fee, by virtue of the rule in Shelley’s Case, which does not exist in Missouri.— 2 Wag. Stats., 1351, sect. 6 ;2 Washb. on Beal Prop. (4th ed.), top pp. 598, 599 ; Pendleton v. Bell, 32 Mo. 100.

Louis Circuit Court. Under the petition, and the law of negligence as applicable to carriers' of passengers, the demurrer to the evidence should have been sustained. The evidence offered by plaintiff developed vis major as the cause of the accident, and the burden of proof in such case was on plaintiff to show actual negligence. — Whart. on Neg. (1st ed.), sects. 129, 661; Be Barron v. Bast Boston Ferry Co., 11 Allen, 316; Withers v. North Kent B. Co., 3 Hurl. & N. 969.

<p>1. Where an administrator has used the funds of his intestate in his own business, rendering no account thereof, he is properly charged with compound interest thereon at ten per cent.</p> <p>2. The failure to account raises the presumption of such use of the money.</p> <p>3. That he has charged himself in his inventory with an account against himself on the books of his intestate is open to explanation; and whether this charge on the intestate’s books at the time of his death represented a subsisting indebtedness of the administrator to him is a question to be determined by the circumstances of the case.</p>