Volume 60 — Missouri Appeal Reports

The court erred in holding that the notice of intention to file lien, offered in evidence, was insufficient. R. S. 1889, sec. 6723; Putnam v. Ross, 46 Mo. 338; Henry v. Plitt, 84 Mo. 237; Miller v. Hoffman, 26 Mo. App. 202; Steinman v. Strimple, 29 Mo. App. 478; Dewitt v. Smith, 63 Mo. 266; Bambrickv. Webster Groves Ass’n, 53 Mo. App. 240; Midland v. Kreeger, 52 Mo. App. 421; Wade on Notice, sec. 640; Shaw v. Bryan, 39 Mo.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The transfer of the interest in the partnership made by the plaintiff to the defendant was within the statute of fraud's. The language of the statute — “goods, wares and merchandise” — includes shares of stock in a corporation or joint stock company-. (Fine v. Hornsby, 2 Mo. App. 61; Bernhardt v. Wallis, 29 Mo.

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

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

<p>1. Corporations: compensation op directors. While the directors of a corporation may employ one of their number to perform services for the corporation which are not necessarily incidental to his duties as director, he will not be entitled to compensation therefor, unless it is fixed by corporate action before the rendition of the services.</p> <p>2. Contracts: construction by parties. The construction placed upon a contract by the parties thereto will prevail, if the contract will admit thereof.</p> <p>3. Contract: construction by parties. If a writing admits of the construction placed upon it by the parties to it, that construction will prevail.</p> <p>4. Termination of the Contract for Services from Month to Month. A contract for services from month to month may be terminated by either party at the expiration of any month.</p>

<p>jError to the St. Louis City Circuit Co%irt. — Hon. Daniel D. Eisheb, Judge.</p>

<p>Jurisdiction, Appellate: casks involving title to land. An action for the establishment of a private road over land involves title to land within the meaning of the constitution, and the supreme court has, therefore, exclusive jurisdiction of an appeal therein.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. It was error to admit the statements of Stinde in regard to the sewer, before plaintiff had proved that he was defendant’s agent and that his authority included the power to bind defendant by¡his representations. Williams v. Edwards, 94 Mo. 447; Diel v. Railroad, 37 Mo. App. 454; Alexander v. Pallins, 14 Mo. App. 104; Chippies v. Whelan, 61 Mo. 583.

Louis City Circuit Cowrt. — Hon. James E. Witheow, Judge. (1) The court erred in refusing a jury trial, because the defense was that the contract was obtained by fraudulent pretenses, which is a legal defense,, and the plea shows a rescission of the contract by the appellant. Mason v. Evans, Coxe, 182; Barrow v. Bespham, 6 Halst. 110; Stoever v. Weir, 10 S. & R. 25; Stubbs v. Pyle, 14 S. & R. 208.

<p>Criminal Law: selling lottery tickets: sufficiency of evidence. The evidence in this cause is considered, and held sufficient to support a conviction for the sale of lottery tickets in a game of chance called policy.</p>

Louis Court of Criminal Correction. Hon. James R. Claiborne, Judge. (1) Two elements are essential to constitute the offense charged against defendant, namely, the criminal intent of abandonment, and the failure and refusal to support the wife. State v. Fuchs, 17 Mo. App. 458; State v. Greenup, 30 Mo. App. 299; State v. Brinkman, 40 Mo. App. 284; State v. Broyer, 44 Mo. App. 393.

<p>1. Divorce: liability of husband for legal services to wife . The attorney for the plaintiff in an action for divorce instituted by a wife, but subsequently dismissed at her direction, can not recover the value of services rendered by him therein in an independent action against the husband.</p> <p>2. -: --. But held, in the course of discussion, that, upon a showing of probable cause, an allowance for suit money could have been made to the wife in the action for divorce, and the dismissal conditioned upon the payment of the allowance into court.</p>

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

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

<p>The Ruling in Sope v. Assigned Estate of Suit,ante p. 61, is affirmed.</p>

<p>1. Action for Money had and Received: jurisdiction on justices’ courts. An action at law may he maintained in a court of law for money had and received by the defendant to the use of the plaintiff, if adequate relief can be obtained therein. Accordingly, such action may be commenced before a justice of the peace.</p> <p>2. -: PAYMENT BY CONSTABLE TO EXECUTION CREDITOR IN IGNORANCE op exemption rights op execution debtor. A constable levied an exe. cution upon property which was not specifically exempt, but failed to notify the execution debtor of'his exemptions. After applying the net proceeds of the property to the execution and paying them over to the execution creditor, the constable was compelled to also pay the execution debtonthe amount of such exemptions, Held, that he could not thereon recover that amount from the execution creditor.</p>

<p>Practice, Trial: right op trial court to exact remittitur. When a verdict is deemed excessive, hut it is not so grossly excessive as to indicate bias on the part of the jury, the trial court may properly exact a remittitur as a condition to the overruling of the motion of the defeated party for a new trial.</p>

<p>1. Breach of Building Contract: measure of damages. Held, in the course of discussion, that one who contracts to do work on a building and furnish the requisite materials therefor, but who is wrongfully prevented from performing his contract by the other contracting party, is entitled to recover as damages his profits, that is, the full measure of his probable gain if he had been permitted to complete the contract.</p> <p>2. Practice, Trial: remarks of counsel in argument to the jury. Such contract, after its execution had been thus prevented, was performed by a third person, who at the time of the trial resided in another state. In discussing the damages, the plaintiff’s counsel, in an action therefor, commented on the failure of the defendant to obtain the testimony of this third person. Held, that the comment was not improper.</p>

<p>Appeal from the St. Louis City Circuit Cowrt. — Hon. Jas. E. Withbow, Judge.</p>

<p>Attachment; right of mortgagee to interplead before condition broken. An interpleader for attached personal property or its proceeds can not recover, if he was not entitled to the possession of the property when he filed his interplea. Accordingly, such interplea can not be maintained by the mortgagee of the property, if filed before condition broken; and this is so, though the mortgagor afterwards fails to pay the mortgage debt.</p>

<p>Practice, Appellate: review of facts in actions in equity. While this court is not bound by the findings of fact of the trial court in an action in equity, it will defer somewhat thereto, and will not reverse them unless they are against the weight of the evidence.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The evidence shows that the pledgee surrendered the pledge, beyond his control, to the use of the pledgor, to enable the latter to pay his own interest and without a promise of return or account for the proceeds collected. This waived the lien.

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

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

<p>1. Gratuitous Bailment: measure oe bailee’s obligation: instruction. Aii instruction in an action by a bailor against a gratuitous bailee for the loss of the subject of the bailment is erroneous, if it hypothecates the liability of the bailee upon negligence simply without any specification of its degree. The right of recovery in such an action should he predicated uponthe.existence of gross negligence.</p> <p>2. -: -:--. Held, in the course of discussion, that an instruction requiring a finding of gross negligence should define the meaning of that term.</p>

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

<p>Appeal from the St. Louis City Circuit Court. — Hon. Daniel Dillon", Judge.</p> <p>(1) There was no mingling of accounts, such as to avoid the lien. Washerman v. Young, 49 Mo. 413; Ridge v. Mercantile L. & T. Co., 56 Mo. App. 155; O’Brien v. Sanson, 9 Mo. App. 545; Kauffman & Wilkinson v. Christophel, 59 Mo. App. 80. (2) There was no waiver of lien by taking Christophers note as an accomodation loan. Selby v. McCullough, 26 Mo. App. 66-72; Peck v. Bridwell, 10 Mo. App. 524; Gorman v. Sagner, 22 Mo. 137; Phillips on Mechanics’ Liens, sec. 283. (3) Appellant was entitled to alien on the house, with the right to remove same. Jodd v. Duncan, 9 Mo. App. 417; O’Brien v. Hanson, 9 Mo. App. 545; Kansas City Hotel Co. v. Sauer, 65 Mo. 288; Fisher v. Anslynn, 30 Mo. App. 316; Kline v. Perry, 51 Mo. App. 422; Seaman v. Paddock, 51 Mo. App. 465; Rail Bros. v. McCreery, 45 Mo. App. 365; Holland v. McCarthy, 24 Mo. App. 90. (4) The husband, being in possession of the lot by virtue of his martial rights, was such “proprietor or owner” as would entitle him to make a contract in his own name for the erection of a building, and such contract would bind the building but not the ground. R. S. 1889, sec. 6726; Kline v. Perry, 51 Mo. App. 422; Seaman v. Paddock, 51 Mo. App. 465; Crandall v. Cooper, 62 Mo. 478; Ambros Mfg. Co. v. Gapen, 22 Mo. App. 397; Chambers v. Benoist, 25 Mo. App. 523.</p> <p>(1) The facts in this case disclose that the property improved was purchased in the name of Mrs. Still-well prior to the commencement of the building. The mere fact that the money came from Mr. Stillwell does not create any trust in his favor. The rule that a resulting trust arises where property is purchased with money of one party, while the title is taken in the name of another, has no application between husband and wife or parent and child. A purchase in such cases will be regarded as a gift or an advancement. I Igenfrits v. IIgenfrits, 116 Mo. 429; Price v. Kane, 112 Mo. 412; Schuster v, Schuster, 93Mo. 438; Sieboldv. Ghristmann, 7 Mo. App. 254. (2) Plaintiff failed to preserve ,the unity of its demand against the contractor Christophel. By charging the materials-delivered to the Still-well house on general account, with materials delivered to other houses, considerable of which it could not trace at all; by giving general credit for payments made, and not.on any specific demand; by accepting Christophel’s notes generally and receiving payments on account thereof generally, it waived its right to the lien afforded by the statute. Lumber Co, v. Robinson, 5 Mo. App. 561; Reitav. Ohio, 47 Mo. App. 287. (3) It is not claimed that there was any evidence in this case establishing an agency on the part of defendant, Robert Stillwell, to act for his wife. His curtesy in the property, not being a vendible interest, is not sufficient to support a lien claim. Fischer v. Anslyn, 30 Mo. App. 316. Therefore there was no proof of a contract between Christophel and any person interested as owner or proprietor of the land, which is a prerequisite to a lien right. (4) The case of Kline v. Perry, 51 Mo. App. 422, relied on by plaintiff for a lien against the building alone, is not supported by the authorities, but is at variance with them. Ranson v. Sheehan, 78 Mo. 668.</p>

<p>1. Partnership: death op member: effect on existing judgment. The rule at common law that, on the death of one member of a co-partnership, the surviving partners are entitled to sue for choses in action, has never been abrogated in this state; and under it such surviving partners may enforce a judgment recovered before such death by all the partners.</p> <p>2. Death of One of Several Judgment Plaintiffs: Revivor op judgment. If one of several judgment plaintiffs dies after the recovery of the judgment, and his administrator thereon enters his apearance in the action, the revival of the canse is a mere conclusion of law, and the absence of a formal order of revivor, therefore, furnishes no ground for complaint on an appeal from the judgment.</p> <p>3. Practice, Appellate: preservation of exceptions by motion for new trial. Neither the refusal of the trial court to compel an election between two counts of a petition, nor the propriety of an instruction given by the trial court, can be reviewed by this court on appeal, when neither ruling is assigned as ground for new trial in the motion therefor.</p>

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

Louis City Circuit Coart. — Hon. James E. Withrow, Judge. (1) A creditor has the right to levy upon the interest of the mortgagor in personal property, and to sell such interest before the condition of the mortgage is broken, and such sale does not create a cause of action in favor of the mortgagee against the execution creditor. State to u,se v. Carroll, 24 Mo. App. 358; Chandler v. West, 37 Mo. App. 631; Boeger v. Langenberg, 42 Mo. App. 7; Lafayette Bank v. Metcalf, 29 Mo.

<p>1. Attachment: suit on bond by dependant having no interest in attached Property. A defendant in a suit by attachment, who had no interest in the attached property, can not maintain an action on the attachment bond.</p> <p>12. Partnership: disaefirmanoe by minor: divestiture op partnership rights. If a member of a partnership/ being a minor, disaffirms and overcomes his obligations as a partner on that ground, he thereby also divests himself of all interest in the partnership assets.</p>

<p>Practice, Appellate: insufficiency of abstract. When a certified copy of the judgment entry and order of appeal is filed in lieu of a complete transcript, matters of exception as distinguished from error arising upon the record proper will he reviewed, only if it appears from the abstract of the appellant that they were properly preserved in the trial court.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The lien of a subcontractor must be filed within four months after his account accrues. The account accrues when the work has been left in a completed condition, and the right of the subcontractor to maintain an ordinary action against the contractor has begun. Bolen Coal Co. v. By an, 48 Mo. App. 512.

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

<p>Appeal from the McDonald Circuit Cotirt. — Hon. J. C. Lamson, Judge.</p>

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

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. (1) Where there is a breach of warranty the vendee may rescind the contract and return in a reasonable time the thing sold, and after such rescission he may recover back anything which he may have paid on the purchase price. Bronson v. Turner, 77 Mo. 489; Tower v. Pauley, 51 Mo. App. 75; Rogers v. Hanson, 35 Iowa, 283; Woodlev. Whitner, 23 Wis. 55; Bryant v. Isburgh, 13 Gray, 607; Marston v. Knight, 29 Me. 341.

<p>1. Threatened Nuisance : injunction. Intended acts will not be enjoined on the ground that a nuisance will ensue, unless they will necessarily result in such nuisance. \</p> <p>2. -: -: pleading. In a petition for such injunction the facts should be stated, so that the court may see and determine therefrom the consequences of the acts sought to be enjoined; a mere general averment, that results constituting a nuisance will follow, is not sufficient. Accordingly, when a proposed dairy is complained of, the intended method of conducting it should be stated.</p>

Louis City Circtiit Court. — Hon. Daniel D. Fisher, Judge. The same rule in respect to corporations obtains everywhere. The officers’ return must show that service was made upon the identical officer or agent of the corporation pointed out by the statute. And where there isno appearance and the judgment goes by default, the return is strictly construed in all courts when drawn in question.

<p>Chattel Mortgages: sufficiency of evidence to establish the reservation of usurious interest. The evidence in this cause is considered, and held sufficient to establish the reservation of usurious interest on a loan secured by chattel mortgage under the cover of outlays for services, and the consequent invalidity of the mortgage under the act of April 21,1891.</p>

<p>1. Executions, Stay of: purview of section 4967 of revised statutes. Section 4967, which provides for certain proceedings for the stay of an execution, applies only to a petition for such stay when made in vacation to the judge of the court out of which the execution issued.</p> <p>2. -: TIME of appeal from determination of motion to quash: effect of motion for new trial. A motion for new trial, though not essential, is,nevertheless,permissible on the overruling of amotion to quash an execution. Accordingly an appeal, taken at the term at which such motion for new trial is overruled, is in time. ’</p> <p>3. -: INQUIRY INTO MERITS OF JUDGMENT ON MOTION TO QUASH. The merits of a judgment rendered by a court having jurisdiction can not be inquired into in the determination of a motion to quash an execution for the enforcement of it.</p> <p>4. Judgment: payment by one of several defendants. A judgment is extinguished by the payment of it by one of the defendants, though an assignment of it is taken in the- name of a third person; and an execution subsequently issued under it will be quashed on the motion of another defendant.</p>

Louis City Circuit Court. — Hon. Leeoy B. Valliant, Judge. When a subcontractor’s right to a lien accrues, it is to a lien upon a building then in process of construction ahd to the land upon which said building is then situated, and this lien is given upon both land and building for the purpose of securing to him payment for his work done and materials furnished, and, therefore, when his lien is perfected by compliance with the statute, it may be enforced against all that…

<p>Practice, Appellate: weighing the evidence. The fact that the verdict in an action at law is supported only hy the testimony of the plaintiff, and that his testimony is contrary to that of the witnesses for the defendant, will not take the case out of the rule against the review of conflicting evidence in such actions hy this court.</p>

Lotus City Circuit Court. — Hon. t. Daniel D. Fisher,, Judge. (1) The court erred in its instruction on the measure of damages, in permitting the jury to consider the plaintiff’s alleged expense for medical attendance as an element of her damage. There was no evidence in the case warranting such submission. (2) The court erred in giving instruction number 1 for the defendant railway company.

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

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. The referee erred in overruling appellant’s objection to the admission of the lien in evidence; and the court erred in overruling appellant’s exception numbered 4, respecting said ruling, and in sustaining said ruling of the referee. The referee should have excluded the lien. McWillicvms v. Allen, 45 Mo. 593; Coe v. Bitter, 86 Mo. 287; Bude v. Mitchell, 97 Mo. 373; Smith v. Healey, 41 Mo.

Louis City Circuit Court. — Hon. Daniel D. Eisher, Judge. Taking the petition as a statement of a cause of action on account of money loaned by the plaintiff to defendant, there is a total failure of proof. Howard v. Railroad, 61 Miss. 194, 199.

<p>Accounts: admission by failure of debtor to object. The plaintiff did certain brickwork on a building for defendants, and further, on an order left at his office by an unknown person, hauled lumber to that building. ' Subsequently he presented, to the defendants for payment his account for the brick work and the hauling, and the defendants denied liability for the brick work but not for the hauling. JKeld, that proof of these facts was sufficient to establish liability for the hauling.</p>

<p>1. ISTegligence: insufficiency op evidence. Evidence of negligence is insufficient, if it is at variance with, the mathematical results of admitted facts.</p> <p>2. Evidence: judicial cognizance: mathematical propositions. Courts will take judicial notice of ordinary mathematical propositions.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The instructions asked by the defendant should have been given. “Proof of words spoken in the second person will not sustain a petition charging the speaking to have been in the third person.” B%mdy v. Hart, 46 Mo. 466; McConnell v. McCoy, 7 S. & R. 223; Code v-.

<p>1. Landlord and Tenant: covenant of latter to pay taxes. A general covenant by a tenant to pay all taxes on the demised premises during the existence of the lease does not extend to general taxes which are payable during the term, but were assessed before it and were therefore a lien when it began, and which, moreover, were levied for a period wholly anterior to it.</p> <p>2. Contracts: construction to avoid unfair results. Held, arguendo, that when there is room for construction, a contract will not be interpreted so as to give an unfair advantage to one of the parties to it over the other.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. In an action for the recovery of specific personal property, the plaintiff must state in his petition the extent of his interest in the property, such allegation being a material one. Cobbey on Replevin, sec. 601; Leyerlev. Hunt, 50 Mo. App. 541, 546. The petition is in the usual form and is sufficient; it sets forth the cause of action and alleges all facts which the plaintiff had to prove in order to recover.

— Hon. Jno. W. Henry, Judge. (I)- The trial court should not have permitted the introduction of any testimony to show any parol contract for future employment between the parties to this case. McLeod v. Sidles, 81 Mo. 595, 603; Broivn v. Morgan, 56 Mo. App. 382, 387; Hickman v. Hickman, 55 Mo. App. 303; Tracy v. Iron Works, 104 Mo. 193; Jackson v. Railroad, 54 Mo. App. 636; Mateer v. Railroad, 105 Mo. 320, 354.

— Hon. Jno. A. Hockaday, Judge. (1) the petition does not state facts sufficient to constitute a cause of action, and the motion in arrest should have been sustained. No excuse is alleged for doing the work, from which the injury resulted, with the number of men averred in the petition to have been insufficient for the reasonable safety of those1 engaged in it. Flynnv. Railroad, 78 Mo. 195; Aldridge v. Furnace Co., 78 Mo. 559; Hahn v. Railroad, 92 Mo. 440; Reichlav.

— Hon. E. L. Scaeeitt, Judge. (1) The first instruction asked by defendant should not have been given. 2 Taylor’s Landlord and Tenant, sec. 507; Freeman on Cotenancy and Partition, see. 182. (2) This instruction standing alone, stripped of any reference to any agreement between plaintiff Brockett and the defendant, would have been correct, had there been any competent evidence upon which to base it.

— Hon. P. C. Stepp, Judge. (1) The law is well settled that a ratification of an act, previously unauthorized, must, in order to be binding upon the person, sought to be affected, by it, be made with a full knowledge of all the material facts, in connection with the transaction, and the receipt, even from an agent, of money paid him on a contract, does not bind the' principal to the contract, unless he knows on what account the money was received, and the terms of the…

— Hon. Eiohard Field, Judge. (1) It is submitted that tbe words in said clause, “schedule time of freight trains on the time card of said first party in force at this date and twelve hours added” must, under the rules for interpretation, be given some meaning, and that the parties understood at the time and intended them to mean “forty-four hours and ten minutes,” and that, therefore, the contract provided a specific time within which the transportation was to be made, and…

— Hon. Eichabd Field, Judge. (1) The court erred in refusing to permit defendant to interrogate the jurors as to their bias or prejudice against railroads as proposed by defendant in his question to said jurors. The question was a proper one. See Thompson on Trials, section 73, page 64 and note 4 to page 64. (2) The court erred in giving the first and second instructions asked by plaintiff.

— Hon. Jno. E. Ryland, Judge. (1) The offense with which the defendant is sought to be charged is a statutory offense, purely and simply. See Revised Statutes of 1889, secs. 6871 to 6882< And all that is required in such cases is that the indictment employ the phraseology of the statute, which defines and creates the offense, all of which is done in the indictment in this cause. See Kelley’s Or.

— Hon. Richabd Field, Judge. . (1) The exceptions were saved by motions for new trial and in arrest of judgment, filed within four days after trial and verdict. 1 R. S. 1889, p. 579, sec. 2243; Demske v. Hunter, 23 Mo. App. 469; Bank v. Thomas, 2 Mo. App. 367; Patchen v. Bonsack, 52 Mo. 432; Bank v. Williams, 46 Mo. 17; Tidd’s Practice [4 Am. Ed.], side page 903, and cases cited. It will avail nothing to file the motion with the clerk in vacation.

— Hon. W. W. Wool, Judge. (1) To constitute a valid sale of goods and chattels by a vendor in possession it must be followed by delivery within a reasonable time and an actual and continued change of possession of the things sold. R. S. 1889, sec. 5178. The change of possession must be open, notorious and unequivocal, such as to apprise the community that the goods have changed hands, — that they have passed out of the custody of the seller and into that of the buyer.

— Hon. W. W. Wood, Judge. (1) The marriage contract should only be dissolved upon full and satisfactory evidence; the rule of inviolability that attaches to the verdict of a jury in other civil actions, where there is some evidence to support it, does not apply in causes of this character.

— Hon. Argus Cox, Judge. (1) Where there are several liens on a tract of land and it is sold under one of them, the surplus, after paying the lien under which it was sold, belongs in equity to the next subsequent liens in their order of priority. drawbridge v. Clark, 52 Mo. 21; Porter v. Potter, 37 Mo. 534; Reid v. Mullins, 43 Mo. 306; Hehveg v. Heitcamp, 20 Mo. 569. (2) The weight of the evidence is that Shriner never delivered his deed of trust to Justus.

— Hon. Wm. M. Robinson, Judge. (1) The court 'erred in overruling defendant’s objection to the admission of any testimony and per-milting plaintiff to amend his petition on the trial. The original petition stating no cause of action, there was nothing to amend.

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

— Hon. D. P. Stratton, Judge. (1) Defendant’s testimony tended to establish no defense to the notes.

— Hon. D. P. Stratton, Judge. (1) The court should have sustained defendant’s demurrer to the evidence and instructed the jury, as requested by the defendant, to the effect that under the testimony their finding should be for defendant. There is no substantial testimony to sustain the verdict of the jury, and is manifestly the result of ignorance, mistake, prejudice or corruption. Doering v. Sawn, 56 Mo. 479.

— Hon. D. P. Stratton, Judge. (1) The court erred in giving instruction number 2, at the instance of defendant on the question of abandonment: ' First. There is no evidence to support such instruction. Second. It does not give the law of abandonment. To constitute abandonment there must be the concurrence of the intention to abandon, and also an absolute relinquishment of the thing abandoned, so it may be appropriated by the next -comer. Judsonv.

— Hon. J. H. Lay, Judge. (1) The regular rate for shipping plaintiff’s stock to Kansas City from Butler in the thirty-four foot car, without executing the written contract, would have been $23.10. While the amount charged under the written contract was $19.80, making a difference of $3.30 per car. There was, therefore, a special rate given plaintiff in consideration of his having executed the written contract.

<p>Appeal from the Bates Circuit Court. — Hon. James H. Lay, Judge.</p> <p>(1) Copy of public record, is admissible in evidence as the original. 13 Am. and Eng. Encyclopedia of Law, page 115; Van Pelt v. Hutchison, 114 111. 435; Drake v. Kinsell, 38 Mich. 232; Bogart v. Green, 8 Mo. 116; State ex rel. v. Maloney, 113 Mo, 367; ,Town of Tipton v. Norman, 72 Mo. 381. (2) The existence of a. city ordinance is a question for the court and not the jury. 19 Am. and Eng..Encyclopedia of Law, p. 634; Boulo v. Val Cour, 58 N. H. 347; Peoria v. Calhoun, 29 111. 317; Hall v. Costello AS N. H. 173; State ex rel. v. Maloney, supra. (3) An instruction which leaves it to the jury to determine the question of jurisdiction is error. Deanv. Grimes, 72 Cal. 442; reported 14 Pac. Rep. 178. (4) If the court has jurisdiction of the subject-matter the officer is not liable for serving process. Milburn v. Gilman, 11 Mo. 65; State to use v. Duelle, 48 Mo. 282; Turner v. Franklin, 29 Mo. 285; Glasgow v. Roivse, 43 Mo. 479; 'Erskine v. Hornback, 14 Wall, 613. (5) The execution is sufficient justification to the officer. Davis v. Cooper, 6 Mo. 148; Miller v. Brown, 3 Mo. 127; Rickman v. Griffin, 6 Mo. 37; Higdon v. Conway, 12 Mo. 295; Hr shine v. Hornbach, 14 Wallace, 613. (6) If the failure of the court to have jurisdiction does not appear on the face of the writ, the officer is protected. Kirkland v. Ferguson, 13 Mo. 166; Hoioard v. Clark, 43 Mo. 344; Mayor to use v. Opel, 49 Mo. 190; Watsonv. Watson, 9 Conn. 140. (7) The writ is fair on its face when it proceeds from a court or magistrate or body having authority of law to issue process of that nature which is legal in form and on its face contains nothing to notify the officer that it is issued without authority. Cooley on Taxation, pp. 559 and 562; Parsons v. Lloyd, 3 Wils. 341; Ives v. Lucas, 1 C. and P, 7; Hrskine v. Hornbach, 16 Wall, 613; Lott v. Hubbard, 44 Ala. 593; Turner v. Franklin, 29 Mo. 285; Glasgow v. Bowse, 43 Mo. 479; Building Ass’nv. Lighter, 47 Mo. 393; Walden v. Dudley, 49 Mo. 419; State to use v. Duelle, supra-, Brown v. Henderson, 1 Mo. 135; Milburn v. Gilman, 11 Mo. 64; Savacool v. Boughton, 5 Wendell, 170; Barr v. Boyles, 96 Pa. St. 31; Besslearv. Peats, 86 111. 275; Ilillv. Wait, 5 Yt. 124. (8) The distinction between courts of general and limited jurisdiction does not exist, so far as personal protection to the officer is concerned. Cooley on Torts [2 Ed.], p. 543, sec. 464; Savacool v. Bough-ton, supra; Besslearv, Peats, supra; Barr v. Boyles, supra; Cunningham v. Michel, 67 Pa. St. 78. (9) Where the jurisdiction of an inferior court depends upon a fact which it is required to ascertain and settle, its decision thereon is conclusive as against a collateral attack. Lingo v. Burford, 112 Mo. 149; State v. Gamble, 108 Mo. 500; Green v. Walker, 99 Mo. 68; State v. Macklin, 51 Mo. 249. (10) Jurisdiction is not the particular thing decided but the authority to decide the question at all. Gray v: Bowles, 74 Mo. 419; Babb v. Bernard, 23 Mo. App. 604. (11) Jurisdiction is a question for the court to determine and not the jury. Shamburg v. State, 24 Tex. App. 433; 6 S. W. Rep. 540.</p> <p>(1) Under the statute two ways are provided,— first, by introducing a printed copy published by authority ; second, by manuscript or printed copy, certified to by officer having same in charge, with seal of city annexed. R. S. 1889, sec. 4846. (2) Under the common law there were two ways of proving the same, and only two, says Greenleaf, first, by examined copy; second, by exemplified copy. Greenleaf on Evidence, [13 Ed.], secs. 480, 500 and 501. (3) The court in effect declared from the record evidence that there was such an ordinance as number 7, but left the jury to find' the contents thereof from the evidence. Again, the defendants tried the case upon this theory; introduced the evidence upon this theory. Having led the court into their error and tried the ease upon this theory, they can not now complain. (4) There is no question of jurisdiction submitted to the jury in the court’s instruction, and, for that reason, appellant’s point 3 is a useless ornament to their brief. (5) Answering the fourth point, we would suggest that, if there was a court, and the court had jurisdiction of the subject-matter, the officer might not be liable, but the officer must know at his peril that the writ coinés from a court. If John Jones who is not a justice of the peace, issues a warrant for the arrest of a man and the officer does arrest him, the officer is not justified. He must know that his writ emanates from a court. What is said' as to point 4 applies with equal force to their point 5. Rafferty v. People, 69 111. Ill; Pierce v. Hubbard, 10 Johns. (N. Y.) 405; People v. Smith, 20 Johns. (N. Y.) 63. (6) There is a failure in the face of the writ to show any jurisdiction in^Bothwell. The writ shows that “on this day (August 7th) information was given to J. Fisher, mayor,” and although the information was given to the mayor, who must have been there at the time Both-well signs the warrant. If the mayor was there to receive the information, Bothwell could not issue warrant. Again, if the information was given to the mayor, Bothwell had no information upon which to act; then, for two reasons, apparent upon its face, the writ was void. (7) The law or ordinance under which the process is issued is a part of the process, and, if the ordinance is void, the process offered no protection to 'the officer. Fisher v. McGuire, 1 Gray (Mon.),l; Fly v. Thomson, 3 A. K. Marsh (Ky.), 70; Milligan v.Hovey, 3 Biss. (TJ. S.) 13. This ordinance is void upon its face. (8) The warrant recites that Kamm, the marshal, gave information/to Fisher, the mayor. From this he knew Fisher was in town. Knowing this, the law compels him to know that Bothwell could not issue the warrant. If he had knowledge of this defect, then he is not protected. Bird v. Perlúns, 33 Mich. 28; Gott v. Mitchell, 7 Blacks. 270; Grace v. Mitchell, 31 ~Wis. 533; Sprague v. Birchard, 31 Wis. 457; Leachman v. Dougherty, 81 Ills. 324; G'uyer v. Andrews, 11 Ills. 494. The court presided over by the president of a board of aldermen is an inferior court. 12 Am. and Eng. Encyclopedia of Law, p. 268 and cases cited. There are no presumptions in favor of the jurisdiction of such an officer or such a court, but all facts necessary to show the jurisdiction must appear of record. 12 Am. and Eng. Encyclopedia of Law, p. 274 and cases cited. In this case it is necessary for the mayor to be absent before Bothwell had any jurisdiction. This jurisdictional fact should be determined by the court, and appear of record. It does not so appear. The writ fails to recite any fact showing that Bothwell was empowered to act, and for that reason is void. (9) If the mayor was in town at the time, Bothwell’s court, was an illegally constituted court and its every act was. void. Rosev. Hinely, 4 Crouch(U. S.),241, 268, 269.</p>

<p>1. Trus.ts and Trustees: judgment: bar, Bor taking or damaging the trust property, either the trustee or beneficiary may sue; and a judgment in an action by one will bar an action by the other.</p> <p>2. -: -: -: case adjudged. J. was the trustee of T., holding certain property to secure T.’s debt to B. G., another debtor of T., attached and seized the trust property. J. interpleaded for the trust property and G. had judgment on the interplea. Held, said judgment was a bar to a suit in equity by B. against T., J., G., and the sheriff to have the propeity applied to the payment of his debt.</p> <p>3. Judgment: estoppel: parties: privies. B. claimed title through J., but J.’s title in a proper suit by G. was declared void. Held, that the judgment barred an action by B., since he was a privy to the former action as every person whom the parties plaintiff and defendant represent in a suit are barred as privies by the judgment.</p>

— Hon. James H. Lay, Judge. (1) That the law is well settled that a trust in personal property may be created and proved by parol evidence. 1 Perry on Trusts, p. 75, sec. 86; Kramer v. McGaughey, 11 Mo. App. 429. (2) The owner of personal property may impress upon' it a valid trust, either by a declaration that he holds the property in trust or by a transfer of the legal title to a third party upon certain specified trusts.

— Hon. James H. Lay, Judge. (1) The purported copy of ordinance number 7 is void upon its face, because it is unreasonable in its terms,, by prohibiting the mere driving of a meat wagon within the city limits.

— Hon. James H. Lay, Judge. (1). The admitted facts show that the’re was no contract at all for the services for which this suit is brought, but on the contrary, that it is a quantum meruit action. The defendant is not liable, under the law, in this kind of an action. R. S. 1889, sec. 3157; Crutch-field v. City of Warrensburg, 30 Mo. App. 356; Woólfolk v. Randolph County, 83 Mo. 501; Johnson v. School District, 67'Mo. 319.

— Hon. E. L. Scaeeitt, Judge. The petition states the cause of action by landlord against tenant for holding over of premises after expiration of the term of lease. ‘ The relief prayed is the double rental value of the premises for the time of the alleged holding over. Had there been no answer filed to this petition, the relief within the power of the court to grant would have been restricted to the prayer of the petition.

E. L. Scarritt, Judge. (1) This suit was not bona ficle commenced within two years. Buswell on Limitations, secs. 352, 353, 354; Society v. Whitcomb, 2 N. H. 227; Johnson v. Farwell, 7 Me. 370 (7 Greenleaf, side p.), see pp. 373, 374.

— Hon. D. W. Shackleford, Judge. The court erred in entertaining jurisdiction of this suit after the trial of the other case and judgment therein. Justice of the peace had no jurisdiction.

— Hon. W. W. Wood, Judge. (1) As the defense offered nothing whatever in the shape of evidence and simply challenged the sufficiency of plaintiff’s case, the situation is precisely that of a demurrer to evidence. The plaintiffs are entitled, at every point — the pleadings, the evidence, the stipulation and the findings — to the benefit of the most favorable view of the case consistent with reason.

<p>1. Justices’ Courts: sufficiency of statement of cause of action. A statement of the cause of action in a suit instituted before a justice of the peace, which apprises the defendant of the nature of the suit and is sufficient to bar another action for the same cause, is adequate for jurisdictional purposes.</p> <p>2. -: jurisdiction over foreign CORPORATIONS. The general grant of jurisdiction conferred on justices of the peace by section 6123 of the Revised Statutes covers suits against foreign as well as domestic corporations.</p> <p>3. --: attachments: absence of plea in abatement. When the defendant, in an action by attachment, commenced before a justice of the peace, fails to file a plea in abatement either before the justice or in the circuit court on appeal, he confesses the grounds of attachment.</p>

<p>The evidence in this cause is considered, and held to disprove the cause of action alleged.</p>

<p>1. Railroads : killing of stock: pleading. When the statement of a canse of action against a railway company for single damages for the killing of stock alleges the negligence of the company in general terms, and is amended by a specification of the negligence, the cause of action is not changed.</p> <p>2. -: ■-: insufficiency of evidence. The evidence is considered, and held insufficient to establish any connection between the killing of the stock sued for and the alleged negligence of the defendant.</p>

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

<p>1. Partnership: liability for torts or one partner. &eld, intlm course of discussion, that all the members of a partnership are liable for the torts of one of the partners, committed in furtherance of the-partnership business and for its benefit.</p> <p>2. Animals Trespassing on the Premises: destruction by poisoned meat. The keeper of a slaughter house, who negligently puts out poisoned meat on his own premises, is liable for the death of a trespassing dog through the eating of it, if the could reasonably have •anticipated that the dog would get at the meat where it was placed by him.</p>

<p>1. Witnesses, Impeachment of: immaterial matter. A witness can not be impeached by contradicting Mm on an immaterial matter.</p> <p>2. Instructions: ignoring defenses. An instruction, which undertakes to cover the whole case, should be so framed as not to ignore the defense presented by the evidence.</p> <p>3. -: -: curing of error. The failure of such an instruction so to do will not be obviated by the giving of another instruction submitting the defense, when there is no reference in either to the other, and one does not necessarily qualify the other, but, on the contrary, the two are inconsistent.</p>

<p>1. Construction of Agreement for Subletting of Contract for Erection of an Embankment. The original contract for the erection of an embankment put upon the original contractor the risk of the washing away of any of the work, and required monthly estimates of the work by the engineer in charge of it. The original contractor sublet the work after he had performed part of it, and after some of the embankment built by him had been washed away, the subcontractor agreeing to complete the work in accordance with the original contract at a fixed rate per yard, payable after each monthly estimate. Seld, that the subcontractor was entitled to a compensation from the original contractor for replacing the part washed away.</p> <p>2. Evidence: competency op estimate of contents of embankment. The amount of the embankment which had been washed away was not measured, but the engineer in charge of the work was shown to presumably be in a position to estimate it with approximate accuracy, it appearing that he saw the embankment before and after the injury thereto and that he was an expert of many years’ experience. Reid, Bond, J., not concurring, that his testimony as to the quantity washed away was competent evidence under these circumstances.</p> <p>3. -: -. But held, further (all the judges concurring), that the testimony of the subcontractor was not competent evidence of such quantity, it clearly appearing that he did not know the outlines of the part which had been washed away, and that he was, therefore, not in a position to properly judge of the contents thereof.</p>

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

<p>1. Statute of Frauds: secondary evidence of memorandum. Semble, that the contents of a memorandum, required hy the statute of frauds to be in writing, may he established hy secondary evidence upon proof of the destruction of the memorandum.</p> <p>2. -: DEFENSE IN ACTIONS INSTITUTED IN JUSTICES’ COURTS. The statute of frauds can not he invoked in this court as a defense to an action instituted before a justice of the peace, when the defense was not raised in the circuit court, either hy objection to evidence or hy instruction.</p> <p>3. Sales: VARIANCE BETWEEN PLEADING AND EVIDENCE. An action Was instituted before a justice of the peace for the purchase money of articles alleged to have been sold hy the plaintiff to the defendant, and in the statement of the cause of action credit was given to the defendant for a stated sum as having been paid hy him. The evidence established the sale of the articles hy the plaintiff to the defendant, and a resale of them hy the plaintiff for the amount of the credit on the failure of the defendant to take them. Held, that the variance was immaterial.</p> <p>4. Practice Trial: nonsuit in action tried by the court sitting as a jury. When there is substantial evidence in support of an action at law which is tried hy the court sitting as a jury, a nonsuit is not proper because the trial court finds the weight of the evidence to he against the plaintiff.</p>

<p>1. Practice, Appellate: presumptions: pleading. It is incumbent upon the party complaining of error to establish it by the record. Accordingly, on an appeal from a judgment rendered under section 2068 of the Revised Statutes for insufficiency of a third petition, it will be presumed, in the absence of a contrary showing, that two prior petitions were adjudged insufficient on demurrer or motion to strike out.</p> <p>2. Sheriff of City of St. Louis: limitation op annual compensation. Under the constitution and act of 1879, the sheriff of the city Df St. Louis is not entitled to more than $10,000, in the aggregate, out of his entire official earnings of any one year.</p> <p>3. -: -: RIGHT OP RECOVERY PROM SUCCESSOR. If Such earnings during any year are collected in part by the sheriff himself and in part by his successor, and his own collections do not exhaust such limit of $10,000, he is entitled to recover enough of such collections by his successors to make good the deficit.</p> <p>4. -; — :-: -: pleading. But the allegation in a petition for such recovery, that he has collected less than $10,000 out of his fees for such year, will not sustain his right of action, when it appears from his petition, taken in its entirety, that the term fees as used therein is restricted to fees for serving and executing process.</p>

<p>1. Contracts: liability for nonperformance. When a contract is unconditonal and its performance is possible, no interposing obstacle will relieve the obligor from the performance of it.</p> <p>2. -: -. Both the defendant and the plaintiff owned premises abutting on a public alley, and the former contracted with the latter to construct at his own expense in this alley a sewer for the use of both premises. The municipal authorities refused to permit this to be done, but caused a public sewer to be laid in the alley and its cost to be assessed against all the abutting property, whereupon the plaintiff paid her assessment, which was reasonable in amount. J&elcl, under the foregoing rule, that she could recover the amount of such payment as damages for the breach of the contract.</p>

<p>Real Estate Agents: agency in perfection of sale. The facts in this cause are considered, and held to support the finding of the trial court that a sale of real estate, on which commissions were claimed by the plaintiffs, had not been effected through their agency or efforts.</p>

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

<p>Instruction Covering Entire Case: ignoring of defense. An instruction covering the whole case is erroneous and prejudicial, if it excludes any theory of right or defense arising under the entire evidence, unless such theory is presented to the jury hy another qualifying instruction.</p>

Louis City Circuit Court. — Hon. Daniel D. Fishee, Judge. (1) In view of the fact that, previous to being asked, neither of the defendants had qualified themselves to testify upon the question of value, the trial court erred in permitting them to testify as to the value of the property taken. Stevens v. Springer, 23 Mo. App. 375, 385; Miller v. Bryden, 34 Mo. App. 607; Gourley v. Railroad, 35 Mo. App. 87.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. Section 6864, Revised Statutes, when read in the light of the rules laid down for the interpretation of statutes, does not justify the construction contended for by respondent, and given it by the court in this case. The disability at common law applied as well to the husband as to the wife.

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

<p>Embezzlement: sufficiency of evidence. The defendant, while he • was financial secretary of a corporation, and as such entitled to the custody of certain books of the corporation, refused to surrender them until they should be revised in his presence and he relieved of further responsibility, but agreed to surrender them when this should be done, Seld, that the evil intent, necessary to constitute embezzlement, could not be inferred from this qualified refusal.</p>

<p>Criminal Law: conviction for lesser offense than charged. An accused may be convicted of a lesser offense than the one charged in the indictment, if the commission of the offense charged necessarily includes the commission of that for which he is convicted.</p>

<p>1. Mechanics Liens : liability of married woman under contract made by her husband in his own name. When a husband contracts in his own name for improvements on the land of his wife, she can not be held personally under the contract, nor can a lien on the land be maintained under it, in the absence of evidence that he acted as her agent in making the contract.</p> <p>2. -: -: SUFFICIENCY OF EVIDENCE OF AGENCY. When SUCh contract is in writing, the agency may be established by extraneous evidence, but the evidence must be so clear, cogent and persuasive, as to leave no reasonable doubt of the ageney in the mind of the trier of the facts.</p>

<p>Tlie evidence is considered and held sufficient to sustain the verdict.</p>

— Hon. C. L. Dobson, Judge. (1) A lien ean not be had for work done or mateterials furnished unless within the purview of the statute. Phillips on Mechanics’ Liens, sec. 15; Eclgar v. Salisbury, 17 Mo. 271, 272. The term “improvement” as used in the statute is synonymous with “building.” Collins v. Mott, 45 Mo. 100; Meistrell & Co. v. Beach, 56 Mo. App. 243.

— Hon. E. L. Scabbitt, Judge. (1) The first assignment of error is that the court erred in refusing to admit in evidence the deed of trust and trustee’s deed. While a tenant can not be permitted, in the absence of eviction or its equivalent, to deny the validity of the title under which his landlord puts him in possession, he can always show that the title has expired. or passed to himself or into other hands, and that he is holding in his own right or under the new owner.

— Hon. J. H. Slover, Judge. (1)- Parol evidence can not be offered to prove the terms of a contract, proof of which is by the statute of frauds required to be in writing.

— Hon. James H. Lay, Judge. (1) Petition not good. It does not allege damage to plaintiff nor the value of the wheat insured. Plaintiff’s objection to any evidence was good. Summers v. Ins. Go., 53 Mo. App. 521; May on Insurance, see 590; Insurance Go. v. Creten, 98 Pa. St. 451; Weil v. Green Go., 69 Mo. 281; Peek v. Bridivell, 6 Mo. App. 451; Gere v. Ins. Co., 67 Iowa, 272; 5 Am. and Eng.

— Hon. W. M. Robinson, Judge. (1) The plaintiffs not having pleaded the statute of frauds in their replication and in their evidence admitting that under the contract with defendants they were to be paid in town lots, defendants were entitled to have submitted to the jury the question whether plaintiffs had selected such lots, and whether defendants were ready and willing to pay plaintiffs in lots as per contract. Maybe v. Moore, 90 Mo. 340-343; Hackworth v. Zeitinger, 48 Mo.

— Hon. E. L. Scarritt, Judge. (1) It was error to tell the jury, by instruction 6, as modified, that the defendant had the burden of proving fraud only “as against the Lounge Company.” It had the burden on the whole case, and as against every one concerned therein. State v. Mason, 96 Mo. 559; Albert v. Beset, 88 Mo. 150; Martin v. Fox, 40 Mo. App. 664; State- v. Hope, 102 Mo. 410.

— Hon. S. W. Moore, Special Judge. (1) Upon the evidence in tbis cause the court erred in granting to the respondent a divorce. In this state to entitle a party to a dissolution of the marriage tie on the ground of desertion the other must have absented himself or herself without reasonable cause for the space of one year. Bailey v. Bailey, 21 G-ratt, 43-47; Coxv. Cox, 35 Mich. 461, 463; Crow v. Grow, 23 Ala. 523.

— Hon. E. L. Scarritt, Judge. (1) No action can be maintained for services rendered, except in pursuance of a contract, expressed or implied. Lynch v. Bogy, 19 Mo. 170; Allen v. College, 41 Mo. 302; Broivn v. Chadwick, 89 Mo. 589. (2) There can be no recovery of compensation for services rendered when it was understood at the time they were rendered no charge was to be made for them against the party sought to be charged. Hoolan v. Bailey, 30 Mo.

— Hon. E. L. Scaebitt, Judge. The lease expressly provided that the landlord should make the premises habitable in case of fire. The instruction of the court relieved plaintiff of that obligation, if the matter that rendered the premises uninhabitable occurred in some part of the room upon which defendant had made some repairs. We can not see where this philosophy finds its parentage.

— Hon. John W. Henry, Judge. (1) The petition did not state a cause of action, and was fatally defective in omitting to show affirmatively the justice’s jurisdiction. B. S., sec. 6392; Mcquoid v. Lamb, 19 Mo. App. 153; Schell v. Leland, 45 Mo. 289; McKinsey v. Harrol, 31 Mo. App. 41; Tegler v. Mitchell, 46 Mo. App. 349; Allen v. Scharrenghausen, 8 Mo. App. 229. (2) The court erred in giving judgment on the first bond filed.

— Hon. James Gibson, Judge. (1) By the terms of the injunction bond, which is copied in the petition, all the other obligees are in exactly the same relation to the obligors as the one who sues, and the question is, can he sue alone to recover the penalty of the bond without bringing them in as parties either plaintiff or defendant, and without any averments in regard to their apparent interest.

— Hon. C. L. Dob-son, Judge. f (1) The restrictive indorsement of a bill or check for collection destroys the negotiability of the paper, and operates as a mere authority to the transferee to receive the proceeds for the use of the indorser. Bank v. Paclcing Co., 4 Mo. App. 200-211; s. c., 70 Mo. 643; Patterson v. Cave, 61 Mo. 439; Quigley v. Banlc, 80 Mo. 295; Weber v. Orton, 93 Mo. 677-680; Banlc v. Banlc, 107 Mo. 402, 407, 410, 412, 413; Bury v. Woods, 17 Mo. App. 245.

— Hon. John W. Henry, Judge. The verdict in this case is excessive, and without any evidence to support it. There was no evidence in the case as to the amount of damage in money sustained by the plaintiff’s cow. It is well settled that it was the duty of the plaintiffs to take charge of t]ie cow, and care for her, and thus avoid as much of the damage to her as possible.

— Hon. J. H. Slover, Judge. (1) The court erred in setting aside the verdict of the jury and granting a new trial, on the ground that there is no evidence to support it. (2) The court erred in refusing to give the first, second and third instructions asked by plaintiffs, especially the third instruction, and of consequence erred in giving instruction numbered 1, asked by defendant.

— Hon. J. H. Slover, Judge. (1) The statute did not impose on defendant the duty of constructing and maintaining a crossing at the point where accident occurred. R. S. 1889, sec. 2611. The demurrer to the evidence should, therefore, have been sustained. (2) The court committed error in refusing defendant’s instruction number 6.

— Hon. James M. Sandusky, Special Judge. (1) The execution of this tax bill by Maloney, chief clerk of the board of public works, was shown. This was fully authorized by the charter. City Charter, art. 14, sec. 15. (2) With' the preliminary proof of execution and assignment, the tax bill makes out a prima facie case. City Charter, art. 14, sec. 18, top of page 90.

— Hon. Richard Field, Judge. (1) The letter containing the representations declared on, written by defendant firm, goes far beyond the expression of an opinion; it asserts as a positive fact that plaintiffs would be perfectly safe in opening an account with Bean. It is a statement that he is to be safely trusted for the amount of the bill which he will order.

— Hon. W. W. Wood, Judge. (1) The answer alleged an oral, special, continuing warranty of the bull for one season. Osborn v. Nicholson, 13 Wall. 654; Richardson v. Mason, 53 Barb. 601; Fatman v. Thompson, 2 Disney, 482. (2) It was alleged in the answer and there was evidence tending to prove that plaintiff warranted the bull for the season by an oral special warranty; and this, issue was a question of fact and a matter that the jury alone was authorized to determine.

— Hon. Argus Cox, Judge. (1) The road was undoubtedly left open originally by the owners of the land as a private way for their own convenience, and the mere fact that it was made use of by the people of the neighborhood without objection does not operate as a dedication to public use, or convert it in any legal sense into a public highway, and thus lay upon the road overseers the duty of keeping it in repair.

— Hon. Argus Cos, Judge. (1) It was perfectly competent to show that plaintiffs lost hogs from overheat, as tending to show that they were getting the hogs to Seymour with all possible speed, and was error in the court in excluding this testimony. (2) It was competent to show that plaintiffs had got word before their arrival that defendant was sick of his contract and would not take the hogs.

— ;Hqn. W. M. Robinson, Judge. (1) The measure of damages laid down by the court in its rulings was wrong. White v. Stoner, 18 Mo. App. 540-550, 551, 552; Huff v. Railroad, 17 Mo. App. 356-360. (2) This suit is on the contract between the parties, and the first thing to do is to find out what was the intention of the parties to the contract and, if possible, to carry it Out. Belch v. Miller, 32 Mo. App. 387-396.

— Hon. W. M. Robinson, Judge. (1) The furnishing proof within thirty days is a condition precedent to plaintiff’s right of recovery, and must be strictly complied with. Noonan v. Insurance Go., 21 Mo. 81; Leigh v. Tornado Co., 37 Mo. App. 543; Irwin v. Ins. Co., 24 Mo. App. 24; 2 Wood on Insurance [2 Ed.], p. 958, section 442, and p. 929, sec. 437; Macklox v. L,is. Co., 56 Mo. App. 343.

— Hon. Wm. M. Robinson, Judge. (1) Since the act of 1887, mandamus will not lie to compel a justice of the peace to grant a change .of venue in a civil case. Laws, 1887, p. 208. Before the act of 1887, the justice’s error did not avoid his jurisdiction, and for that reason it has been held in several cases that mandamus would lie. A. & M. Ass'n v. Beineclce, 21 Mo. App. 478; Colvin v. Six, 79 Mo. 198; State ex rel. v. Clayton, 34 Mo. App. 563.

— Hon. D. P. Stratton, Judge. (1) We submit that there was no testimony on the trial in the court below to sustain the finding of the jury. (2) The instruction given liy the coart on the motion of the plaintiff, in effect, told the jury to find a verdict for the plaintiff for $118.35, if they found the deceased was indebted to the plaintiff in any sum, and is misleading. (3) Defendant’s first instruction should have been given.

— Hon. Jas. H. Lay, Judge. (1) The right of recovering in this character of action, is in the party holding the note secured by the mortgage and not by the mortgagee, where they are different. Kingslancl v. Crisman, 28 Mo. App. 308; Hagerman v. Sutton, 91 Mo. 531; Mayes v. Robinson, 93 Mo. 123.

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

<p>1. Insurance : jurisdiction of Louisiana court of common pleas. Under the provisions of section 5912 of the Eevised Statutes of 1889, the Louisiana Court of Common Pleas may obtain jurisdiction in an action against a foreign insurance company by service on the superintendent of the insurance department.</p> <p>2. Insurance, Fire: proofs of loss. The provisions of a policy of fire insurance for a certificate of the nearest magistrate or notary must be complied with, unless the right thereto has been waived.</p> <p>3'. •-: -: waiver. Such waiver may be made after the lapse of the stipulated time for the delivery of proofs of loss, and need not combine the elements of estoppel; the question of waiver is one of intention.</p> <p>4. -: FALSE SWEARING BY INSURED: SUFFICIENCY OF EVIDENCE. The evidence in this cause is considered, and held sufficient to warrant the submission to the jury of the issue, whether plaintiff was debarred of his elaim under the policy by reason of false swearing.</p> <p>5. -: CONDITION AGAINST STORAGE OF ETHER: EXCEPTIONS ARISING from nature of Subject of insurance. A printed condition of a fire insurance policy prohibiting the storage of ether does not apply, when the subject of the insurance is merchandise in a drug store, and ether in the quantity stored is a customary and necessary part of such merchandise.</p> <p>6. Evidence: competency on oneer to compromise. An offer of compromise is not competent evidence as an admission of liability.</p>

— Hon. E. M. Hughes, Judge. (1) There was no appointment of a next friend to act in the case. R. S., secs. 1998, 1999, 2403'and 2414. (2) The court erred in permitting plaintiff to prove the value of services, etc., of deceased, as under the petition no special damages were alleged. Matthews v. Railroad, 26 Mo. App. 75. 1 (3) The accident was the result of the negligence of a fellow servant, and, therefore plaintiff can not recover-.