Volume 61 — Missouri Appeal Reports

<p>1. Receipts: competency op oral testimony in contradiction. A mere receipt is always open to explanation by parol.</p> <p>2. Accord and Satisfaction. When property is received in satisfaction of a debt without any agreed price at which it is to he estimated, the transaction becomes an accord and satisfaction, irrespective of the intrinsic value of the property.</p> <p>3. -. But payment, either in money, or property taken at a fixed monetary price, of a part only of an undisputed debt is not of itself a further discharge of the debt than the sum paid, notwithstanding the parties may have agreed that such part payment shall extinguish the whole indebtedness.</p> <p>4. Payment: burden op proop. The party who alleges payment has the burden of proof in regard thereto.</p>

'Appeal from, the Pike County Circuit Ctourt. — Hon. Reuben E. Ron, Judge. Proofs of loss are not rendered to the company when deposited in the postoffice, but when actually received by it. Central City Co. v. Oates, 86 Ala. 558; Hodgkins v. Montgomery Go., 34 Barb. 213; Maddox v. Ins. Go., 56 Mo. App. 343; Ostander, Eire Insurance, see. 193.

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

<p>1. Practice, Appellate: insufficiency of record. All the evidence which was before the trial court must be embodied in the transcript, when a review of the sufficiency of the evidence for the submission of the cause to the jury is desired in an action at law.</p> <p>2. Lien for Keeping of Horse: enforcement by replevin. The keeper of a horse for hire can enforce his statutory lien by replevin against anyone who purchases and obtains possession of the animal with notice of his claim.</p> <p>3. -: waiver: law and FACT. The question of the waiuer of such a lien is always one of fact for the jury, when the waiver is sought to be established by matters in pais and the evidence is sufficient.</p>

<p>1. Attachments: suit on debt not due: trial on the merits. When the plaintiff, in an action by attachment on a debt not due, desires to appeal from a judgment for the defendant on the plea in abatement, there must first, under our present statute, be a trial on the merits. But if, in such case, the judgment on the merits be for the plaintiff, it must be vacated, if after its rendition the judgment for the defendant on the plea in abatement becomes final. Ghrier v. Fox, 4 Mo. Ayyp. 5%2 is, distinguished.</p> <p>2. -: effect of premature appeal on jurisdiction of trial court. When an appeal is taken by the plaintiff in a suit by attachment from an adverse judgment on the plea in abatement, and is subsequently dismissed as premature, such dismissal reinvests the trial court with jurisdiction to proceed with the cause; nor is it necessary that there should be any order by the trial court at its intervening terms for the continuance of the cause.</p> <p>3. Chattel Mortgages: sufficiency of description of mortgaged property inter partes. The fact, that the description of the mortgaged property in a chattel mortgage is insufficient as to attaching creditors of, or subsequent purchasers' from, the mortgagor, will not invalidate the mortgage between the parties thereto.</p> <p>4. -: ORAL EVIDENCE AS TO POWER OF SALE ON PART OF MORTGAGOR.. When a chattel mortgage prohibits the sale of the mortgaged chattels-by the mortgagor, oral proof of a contemporaneous agreement for such sale is not competent in an action between the parties to the instrument, such evidence being in contradiction of the writing.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The mere use of the word “trustee” in the assignment of a note imports the existence of a trust, and gives notice thereof to all into whose hands the instrument may come. Shaw v. Spencer, 100 Mass. 382, and cases cited; Sturtevant v. Jacques, 14 Allen, 523.

<p>1. Contracts, Construction of. In the interpretation of contracts, the words used must be taken in their plain, ordinary and usual sense; and, where they are fre'e from ambiguity or uncertainty, no room is left for construction.</p> <p>2. -. However capricious may be the intention which is clearly and unequivocally expressed, every court is bound by it unless it be plainly controlled by other parts of the instrument.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisheb, Judge. (1) The case was properly referred by the court of its own motion under the provisions of section 2138 of the Revised Statutes. Schmidt v. Bose, 6 Mo. App. *579; Martin v. Hall, 26 Mo. 386-389. (2) The deposition of defendant Blell was properly received in evidence as an admission by him against Ms interest. Kritser v. Smith, 21 Mo. 296; Priest v. Way, 87 Mo. 16; Bogie v. Nolan, 96 Mo. 85, 90.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The appellant was wholly without authority to make the promise sought to be established. His promise, though made as administrator, did not bind the estate, or afford a basis for the judgment rendered in this case, to be satisfied de bonis testatoris instead of de bonis propriis.

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

— Hon. Ben. E. Turnes, Judge. (1) In impeaching a witness, a party is not restricted to his moral character for truth and veracity, but the inquiry may extend to his moral character generally. State v. Hamilton, 55 Mo. 520; State v. Breeden, 58 Mo. 507; State v. Grant, 76 Mo. 236. In such eases, evidence that the reputation of the witness was that of a common drunkard is admissible. State v. Grant, 79 Mo. 113.

<p>Appeal from the Scotland Circuit Court, — Hon. Ben E. Turner, Judge.</p> <p>The second amended statement stated a new cause of action. Scovill v. Glasner, 79 Mo. 449; Lamphin v. Collier, 69 Mo. 170; Sims v. Field, 24 Mo. App. 557; Fields v. Maloney, 78 Mo. 172; Gibbons v. Steamboat, 40 Mo. 253; Missouri Lumber Co, v. Zeitinger, 45 Mo. App. 114; Boughton v. Bailroad, 25 Mo. App. 10,</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p> <p>There was sufficient evidence of the claim to justify a submission to the jury. Jackson v. Hardin, 83 Mo. 173; Baum v. Fryrears, 85 Mo. 151; Sage v. Beeves, Í7 Mo. App. 210. The defendant was estopped from denying the claim for labor done and material furnished by plaintiff, since he not only stood by and saw plaintiff doing the work, and subsequently enjoyed the benefits arising from it, but also ordered plaintiff to go on with it and finish the room. Scharmore v. Scharmore, 56 N. W. Eep. 651; Martin v. Johnson, 23 Mo. App. 96; Austin v. Loring, 63 Mo-. 19; Morton v. Hicfbee, 38 Mo. App. 472; Bank of Commerce v. Bernero, 17 Mo. App. 313; Forsyth v. Day, 46 Maine, 313.</p>

— Hon. Argus Cox, Judge. (1) The court below should have given the instructions directing a verdict for the defendant, asked by it at the close of plaintiff’s evidence and again at the close of all the evidence. Negligence arises from a breach of a duty, and is not presumed from a mere accident. Plaintiff, in order to recover, should have proven, by a preponderance of the evidence: First, a duty owing him by defendant; and, second, its violation. He did neither.

— Hon. W. M. Robinson, Judge. (1) The change of venue from Grreene county as to appellants, against their protest, was error. It is doubtful if the venue of a civil case can be changed at all on the application of one of several defendants. It is certain that it can not be as to those not applying, if they resist it.

— Hon. W. W. Wood, Judge. (1) The proofs of death, furnished by the lodge in accordance with the laws of the order, should have been admitted in evidence because… Held: if for no other purpose. On this point it is only necessary to cite Bavey v. Ins. Co., 38 Fed. Rep. 650. (3) The court erred in sustaining plaintiff’s objections to the hypothetical questions asked witnesses Moad and Richardson. These hypothetical questions were in proper form and should have been answered'.

— Hon. W. W. Wood, Judge. (1) Suicide, under the terms and conditions contained in the application and certificate or policy in this case, forfeits the policy. Bigelow v. Ins. Co., 93 U. S. '284; Ins. Co. v. Crandall, 120 U. S. 527; BeGogorm v. Ins. Co., 65 N. Y. 232; Adkins v. Ins. Co., 70 Mo. 27; Ins. Co. v. Ainsworth, 71 Ala. 436.

— Hon. D. W. Shackle-ford, Judge. •(1) Although under the terms of the deed of trust, the trustee should have sold for cash, yet he could extend the credit, which he did extend to the purchaser at the first sale; and it was a valid sale, and the trustee then became possessed of the trust property in a form other than real estate. 2 Jones on Mortgages [4 Ed.],sec. 1871; 2 Pingry on Mortgages, secs. 1379 and 1380; Bailey v. Ins.

— Hon. Angus Cox, Judge. (1) The court should have sustained objection to evidence of conveyance by Highfill, refused plaintiff’s second and fourth instructions, and given defendant’s tenth, for the reasons that as a matter of law defendant’s contract was for a perfect title.

— Hon. H. H. Harding, Special Judge. (1) As to proceedings against stockholders executions to issue when? R. S. 1889, sec. 2517. Upon a motion by the judgment creditor of a corporation to hold a stockholder liable under the Revised Statutes, section 736, when all the evidence is set out in the record, an appellate court deals with the facts as fully as if it were a case in equity. Cognard v. Prendergast, 35 Mo. App. 237. Such motion is a substitute for a bill in equity.

<p>1. Agistment: Kansas statute . A statute of Kansas gives a lien to the agister of cattle, but the voluntary delivery of such cattle to the owner is an abandonment of the Ken which is made to depend on possession.</p> <p>2. -: common law. An agister of cattle under the common law had no lien.</p> <p>3. .-: delivery op possession: instruction. An instruction set out in the opinion relating to the delivery of possession hy an agister of cattle to the owner is held, to he fatally defective in singling out certain facts and advising the jury they were of paramount importance and conclusive in the case.</p> <p>4. -: assignment op lien. The lien of an agister of cattle is assignable since the action would survive and pass to the personal representative.</p>

— Hon. C. L. Dob.son, Judge. (1) The statute would seem sufficiently explicit to entitle plaintiff to subject to its execution the mantels in question without further argument. Straus v. Botham, 102 Mo. 264 et seq. D. J. Coon, as the record explicitly shows, was not “an innocent purchaser for value without notice of the existence of such prior claim for the purchase money.” It is not in the power of the court to add to or take from a statute a meaning so plainly expressed.

<p>Appeal from Pulasici Circuit Cou/rt. — Hon. C. C. Bland, Judge.</p>

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

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

<p>1. Replevin: pleadings: effect of general denial. In a replevin suit the defendant may, under a general denial by answer, show anything which tends to disprove the title or right of possession of the plaintiff.</p> <p>2. Res Adjudicata: effect of former adjudication. When a defense at issue under the pleadings in one action has been determined by tile judgment in the cause, it can not be again invoked in a subsequent action between the same parties, although the party seeking to invoke it was defeated in the first action owing to the lack of evidence which he has obtained in the second.</p>

— Hon. Abgus Cox, Judge. The motion to quash ought to have been sustained.

— Hon. Reuben E. Roy, Judge. The county court can not he compelled to' make an order which involves, and can only be, the result of judicial discretion. Strohanv. Audrain County Court, 65 Mo. 643; State ex rel. v. Francis, 95 Mo. 44; State ex rel. v. Macon County Court, 68 Mo. 48; State ex rel. v. Laughlin, 75 Mo. 366. The county court might be compelled by writ of mandamus to proceed to a judicial duty, but not to dictate its judgment.

<p>1. Insurance, Fire: breach or warranty: estoppel. The defendant fire insurance company issued to the two plaintiffs as partners its policy covering a store house and a stock of goods therein. The store house belonged to one of the plaintiffs individually. This fact was mentioned by one of the plaintiffs to the agent of defendant (who was authorized to write policies for it), for the purpose of having the house insured separately, but the agent replied that it made no difference so long as the house belonged to either of the plaintiffs. Held, that, under these facts, the said ownership of the house was not available to the defendant as a breach of warranty.</p> <p>2. -: waiver or proofs op loss. Proofs of loss which were not in strict compliance with the policy were delivered to the insurance company, and its adjuster demanded fuller proofs and required these proofs to be accompanied with copies of invoices. Puller proofs were delivered, but they were not accompanied by copies of the invoices owing to the destruction of the originals by the fire. Thereafter the adjuster made unsuccessful attempts to settle the loss with the insured, but never returned the proofs of loss. Held, that evidence of these facts'was competent to establish the waiver of proofs of loss.</p> <p>3. -: excessive verdict: practice, appellate. Appellate courts will not vacate a verdict as excessive, unless the excess is unwarranted under any reasonable interpretation of the evidence.</p>

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

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

— Hon. Reuben E. Roy, Judge. The trust was annexed to the office of executor, and was accepted as such hy the executor when he qualified; and, having never made a final settlement as executor, he and his sureties are liable. 2 Woerner’s Am. Law of Administration, 721; Earl v. Earl, 93 N. Y. 103-110; 2 Williams on Executors [6 Am. Ed.], p. 1506, note m, and cases cited; 3.

<p>Appeal from the Laclede Circuit Court. — Hon. O. O. Bland, Judge.</p> <p>(1) Failure to return proofs of loss with specific objections may be construed as a waiver. Organ v. Ins. Co., 3 Mo. App. 576; Porter v. Ins. Co., 32 Mo. App. 198; Loeh v. Ins. Co., 99 Mo. 50; Hazsard v. Ins. Co., 53 Mo. App. 101; McCullough v. Ins. Co., 113 Mo. 615; Franklin v. Ins. Co., 42 Mo. 456; Sims v. Ins. Co., 48 Mo. 50. Denial of geueral liability is evidence of waiver. Trundle v. Ins. Co., 54 Mo. App. 188; Summers v. Ins. Co., 45 Mo. App. 47; La Force v. Ins. Co., 43 Mo. App. 518. There is some evidence in this case from which waiver could be inferred, and it became the duty of the court to submit the question to the jury under appropriate instructions. Loeh v. Ins. Co., 99 Mo. 50; Parks v. Ins. Co., 26 Mo. App. 511; Okey v. Ins. Co., 29 Mo. App. 105; Travis v. Ins. Co., 32 Mo. App. 198; Summers v. Ins. Co., 45 Mo. App. 46; Hansard v. Ins. Co., 53 Mo. App. 101. (2) The house and personal property in this case being separately valued, the policy is divisible, and a misrepresentation as to the title to premises in any event would not prevent recovery as to personal property. Holloway v. Ins. Co., 121 Mo. 87.</p> <p>Even if waiver of proofs of loss had been pleaded, it would not be established by the evidence. To constitute waiver, some act or declaration indicative of it must be shown to have taken place within the time allowed for the delivery of such proofs, which has not been done. 'Erwin v. Ins. Co., 24 Mo. App. 152,</p>

<p>1. Practice, Appellate: sufficiency of appellant’s statement. The statement of an appellant does not satisfy either the statutory requirements or the rules of this court, when it does not contain any synopsis of the evidence on which the instructions are predicated, nor even refer the court to the portions of a voluminous record where that evidence can be found.</p> <p>2. Instructions: refusal of instruction as to matter already covered. The refusal of an instruction is not erroneous, when the matter contained in it has been already covered by other instructions given to the jury.</p> <p>3. Consistency of Instructions. The instructions given in this cause are considered, and held not to be contradictory when read in connection with each other.</p>

<p>Appeal from the Webster Circuit Cowrt. — Hon. Argus Cox, Judge.</p>

— Hon. Argus Cox, Judge. (1) The description of the property contained in the mortgage under which plaintiff claims is so vague and uncertain as to be inoperative as to the property in controversy. Chandler v. West, 37 Mo. App. 631; Stonebralter v. Ford, 81 Mo. 532; Hughes v. Menefee, 29 Mo. App. 192; Souders v. Voorhees, 12 Pac. Rep. 526.

— Hon. E. M. Hughes, Judge. Payment by one of several defendants extinguishes the judgment, whatever may be the intention of the parties to the transaction. It is not in their power to keep the judgment on foot for the benefit of the party paying. Hull v. Sherwood, 59 Mo. 172, and authorities cited. It was legally impossible for Harper to be the assignee of a judgment in which he was a defendant.

<p>1. Principal and Agent: action nr excess of known authority. When the authority of an agent is known, a person who contracts with him in excess of it can not hold the principal.</p> <p>2. Building Associations: RECOVERY BY WITHDRAwins member. A withdrawing member of a building association can not recover from it the value of his stock, when there is no evidence that he has complied with the conditions of the by-laws and statutes in regard thereto.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. John A. Harrison, Judge.</p> <p>The bond sued upon was void as being without any consideration or upon a consideration which was against the law. A sheriff may take a bond to keep himself harmless in doing that which he ought to do, but if he takes a bond to keep himself harmless in doing that which he ought not to do, the bond is void and against the law. Blockett-v. Crissop, 1 Ld. Ray. 278; Murfree on Sheriffs [Ed. 1890], sec. 635a; Cole v. Parker, 7 Iowa, 167; Cass Co. v. Beck, 76 Iowa, 487; Hodson v. Wilkins, 7 Maine, 113; Denson v. Sledge, 2 Dev. 136; Griffin v. Hasty, 94 N. O. 438; Carroll v. Partridge, 12 Mo. App. 583; Buffendeau v. Brooks, 28 Oal. 641; Denny v. Lincoln, 5 Mass. 385; Greenwood v.- Colcock, 2 Bay (S. 0.), 67; Kirk v. Merry, 23 Mo. 72; Thornton v. Mailroad, 42 Mo. App. 58; Morgan v. Hale, 12 W. Ya. 713; Webber v. Blount, 19 Wend. 190; Millard v. Canfield, 5 Wend. 61; Prewett v. Garrett, 6 Ala. 128; Ayer v. Hutchins, 4 Mass. 370; Love v. Palmer, 7 Johns. 159; Porter v. Stapp, 6 Ool. 32.</p>

— Hon. James T. Neville, Judge. It was an abuse of discretion on the part of the trial court not to reinstate the case, and grant a jury trial. The. defendant’s attorney was not at fault. He had a right to rely upon a jury trial, and a right to believe the court would not violate a constitutional provision in the disposition of this cause. Judah v. Hogan, 67 Mo. 252; Tucker v. St. Louis Life Ins. Go., 63 Mo. 538; Beal Estate Sav.

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

— Hon. James T. Neville, Judge. “Where a party advances money at the request of the purchaser to pay the purchase money of a tract of land with the understanding and agreement at the time that he was to have a mortgage thereon to secure the purchase money so advanced, and the mortgage was executed by the purchaser of the land in accordance with such agreement, his wife is not entitled to dower in the lands so mortgaged, though she did not join in the execution of the…

—Hon. Ben E. Tubneb, Judge. (1) A change of venue should have been granted on the application of defendants. It was timely and in the form prescribed by the statute. R. S. 1889, secs. 2259-2262; Bowling v. Allen, 88 Mo. 293; Gorpeny v. City of Sedalia, 57 Mo. 88; Reed v. State, 11 Mo. 380. (2) There is no evidence upon which to base the instruction for punitive damages.

<p>1. Criminal Law: information in circuit court: verification. An information filed in the circuit court is fatally defective, if it is not verified by the oath of the prosecuting attorney, or some other competent person.</p> <p>2. -: LICENSE OF ITINERANT venders of drugs: collection of license tax. Semble, that section 6880 of the Revised Statutes, •which requires the payment of a license fee by every itinerant vender of drugs, “to be collected as provided for by law, as other licenses are now collected,” and which provides a penalty for the violation of that requirement, is sufficiently definite, and that it intends that the license tax should be collected by the county collector of the county in which the calling is practiced, or other acts are done, for which the license is prescribed.</p> <p>3. -: -: information. Held, in the course of discussion, that an information or indictment, which charges the offense only in the words of the statute under which it is framed, is insufficient if the statute does not describe or specify the offense created by it.</p>

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

<p>1. Appeals: finality of judgment. Except as provided by the act of April 18, 1891, an appeal lies only from a final judgment, disposing of the matter adjudged as to.all the parties to the cause. Aceord- . ingly, an appeal is premature when the demurrer of one of the parties defendant is sustained, and the action is dismissed as to him but left undisposed of as to the other defendants.</p> <p>2. Mortgages, Foreclosure of: joinder of parties and causes of action. Held, in the course of discussion, that, when a mortgagee sues to foreclose his mortgage, he may join as a party defendant a prior incumbancer who took with notice and in fraud of his rights, and have his mortgage adjudged the prior lien.</p>

<p>1. Partnership: accounting: equitable jurisdiction. It is the peculiar province of a court of chancery to determine the interests of partners inter sese, and, at their instance, to see that the assets of the firm are applied to the satisfaction of partnership debts..</p> <p>2. -: levies of executions for indebtedness of partner individually. A levy on partnership assets of an execution against one ■ of the partners, individually, will not displace the équitable right of his copartners to have the partnership assets applied to the payment of the partnership liabilities existing at the time of the levy.</p> <p>3. Pleadings: objections to insufficiency of petition. The objection, that an essential allegation is made only by intendment in a petition, can not be raised after judgment; nor can it be raised before judgment by motion to exclude testimony.</p>

<p>’ 1: Practice, Trial: general verdict. When the several counts of a petition state hut one cause of action, a general verdict for the plaintiff is not erroneous.</p> <p>'2. Streets, Evidence of. The existence of a street may be shown by oral evidence, when no objection is made thereto.</p> <p>3. Municipal Corporations: defective sidewalk: contributory negligence. The plaintiff was aware of the faulty construction and decayed condition of the sidewalk on one side of a public street, and knew also that the sidewalk on the other side of the street was in good repair, yet walked along the former at night and was injured in consequence of its condition. Meld, that these facts did not establish contributory negligence on his part as a matter of law.</p> <p>4. Instructions: measure of damages: non-direction. The failure of the trial court to instruct the jury that, in assessing the damages of the plaintiff, they should not take into consideration any aggravation of such damages which was caused by the neglect of the plaintiff to give timely attention to his injuries, amounts only to non-direction, when no such instruction is requested.</p>

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

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

<p>1. Public Roads: effect of appeal from assessment of damages in county court. When an appeal is taken, under section 7801 of the Revised Statutes, from the judgment of a county court assessing damages for the opening of a public road, that court may either stay further proceedings until the damages are finally ascertained, or may order the road to be opened notwithstanding the appeal.</p> <p>2. -: -: payment of damages. If the road is thus ordered to.be opened, the county is irrevocably bound for the payment of whatever damages are recovered by the landowner on the appeal; but, if the proceedings are thus stayed, the county court retains the right, on the determination of the appeal, to either pay the damages finally assessed and order the road to be opened, or to dismiss the proceedings altogether.</p>

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

—Hon. James T. Neville, Judge. Plaintiff should have stated that he was a physician, duly, authorized by the state board of health to practice as such. His contract was in violation of a positive statute forbidding the carrying on of the business under which the obligation was attempted to be made, and was, therefore, void. R. S., secs.. 6871 and 6881; 3 Am. and Eng. Encyclopedia of Law, page 872; Doivning v. Ringer, 7 Mo. 292; Friend v. Porter, 50 Mo.

<p>Appeal from the Ripley Circuit Court.—Hon. John GL Wear, Judge.</p>

<p>Appeal from the Scott Circuit Court.—Hon. Henry C. Riley, Judge.</p>

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

<p>Jurisdiction, Appellate: transfer op causes. It is the pra ctiee of this court, when there is the least question of its jurisdiction of an appeal, to transfer the cause to the supreme court.</p>

<p>Original Jurisdiction of this Court: transfer of causes to supreme court: pleading. The jurisdietion of this court in proceedings by original writ is limited to eases falling within its appellate jurisdiction. Nor can a prooeedingby original writ be transferred to the supreme court, when the jurisdiction is in that court. Accordingly, a relator in a proceeding by mandamus in this court pleads himself out of court, when he pleads a constitutional provision in support of his right to the writ.</p>

—Hon. Jno. A. Hockaday, Judge. (1) The truth of an affidavit of an attachment can not be inquired into in a suit on the bond. Hayclen et al. v. Sample, 10 Mo. 215. (2) The court erred in sustaining the demurrer filed by plaintiif to the first count or defense in defendant’s answer. 1 R. S. 1889, sec. 2068, p. 545; Beardslee v. Morgner, 73 Mo. 22; /Spurlock v. Railroad, 93 Mo. 13; Austin v. Boyd, 28 Mo. App. 52.

—Hon. D. P. Stratton, Judge. (1) If, under the most favorable view which can be taken of the plaintiff’s evidence, he is entitled to any remedy—which defendant denies—it is not to be found in action in tort for his expulsion, but on the contract for the value of the surrendered ticket. Fred/rick v. Railroad, 37 Mich. 346; Townsend v. Railroad, 56 N. T. 295; Marshall v. Railroad, 78 Mo. 616; Yorton v. Railroad, 54 Wis. 234; Hall v. Railroad, 15 Eed.

—Hon. Henry M. Ramey, Judge. (1) All of the proceedings relating to the construction of the sewer, the issue of the tax bills and the suit on the one involved in controversy in this case, have been in strict compliance with the provisions of the city charter. 1 R. S. 1889, p. 415, sec. 1429. (2) In suits like this, only substantial compliance with the law is required.

—Hon. Andrew Ellison, Judge. (1) The waiver was made four days before the sixty days were up and was not denied by Mr. Payscn, who was sworn by defendant on the trial. The waiver was clear and plaintiff relied on it and had a right to. The waiver was a question for the jury. McCullough v. Ins. Co., 113 Mo. 606; Hoffman v. Ins. Co., 56 Mo. App. 301; Fulton v. Ins. Co., 51 Mo. App. 460; Loeh v. Ins. Co., 99 Mo. 50 and cases cited, pp. 55 and 56 as to waiver by agent.

—Hon. Eiohard Field, Judge. (1) A difference having arisen as to the amount of the loss, the failure of the assured to have same appraised as provided by the contract of insurance is, fatal to his recovery. In Mossness v. Ins. Go., 50 Minn. 341 (52 N. W. Rep. 932), the various conditions of the policy at bar with reference to the appraisal, verb, et lit., are considered with the result as announced above. Kahnweilerv. Ins. Co., 57 Fed.

<p>Appeal from the Newton Circuit Court.—Hon. Joseph Cravens, Judge.</p>

<p>Appeal from the Newton' Circuit Court.—Hon. Joseph L. Cravens, Judge.</p>

<p>1. Verdict: signature by foreman: motion in arrest. A verdict will not be invalidated by the failure of the foreman of the jury to sign it; nor will the absence of such signature constitute sufficient ground for a motion in arrest.</p> <p>2. -: disregard of inacouracies. A verdict which is responsive to the issues will not be affected by an inaccuracy of punctuation or expression, so long as its meaning is perfectly clear in the light of surrounding circumstances.</p> <p>3. -: -. In this cause, which was an action on a promissory note for $103.70 and interest, the only defense was non est factum. The jury returned a verdict for $1.12 16-100. Held, under the foregoing rule, that the dot or period in the verdict should be disregarded as immaterial and that a judgment for $112.16 was properly entered on the verdict.</p> <p>4. Justices’ Courts: dismissal in circuit court as to some of the defendants after verdict. In an action instituted before a justice of the peace, in which there were several defendants whose liability was joint and several, judgment on a verdict in favor of the plaintiff was entered in the circuit court against one only of the defendants, whereupon this defendant filed a motion in arrest. Held, that the plaintiff was entitled to dismiss as to the other defendants prior to the determination of the motion.</p>

<p>1. Insurance, Fire: strict construction of forfeitures: condition as to yearly inventory of stock. Provisions for forfeiture are strictly construed, and that construction will be adopted, if it is at all permissible, which will avoid a forfeiture. Accordingly, when a condition in a policy of fire insurance requires an inventory of stock to be taken at least once a year, the insured has a year from the date of the policy in which to make an inventory, though the policy runs for one year only.</p> <p>2. -: condition for safe-keeping of books : waiver. The breach of any condition in an insurance policy, and therefore the breach of a requirement for the safe-keeping of books of account, can be waived, and such waiver may be implied by the jury, when, after having knowledge of the breach, the adjuster of the insurance com- • pany, with the view to adjusting the loss, visits and examines the books and papers of the insured,, and causes the insured to procure data for him under the provisions of the policy.</p> <p>3. --: waiver of proofs of loss. These acts on the part of the adjuster, coupled with his silence on the subject of proofs of loss, warrant the inference by the jury of the waiver of the right to such proofs.</p> <p>4. -: waiver of conditions: pleading. A waiver of conditions of an insurance policy can be shown under a general allegation of per formance.</p>

<p>Appeal from the Franklin Circuit Cowrt.—Hon. Rudolph Hiezel, Judge.</p>

<p>1. Corporation: proop or membership. “The name of the defendant appeared among those of the incorporators in [proceedings for' the incorporation of an association for educational and other purposes, but he denied that its use, had been authorized. It appeared, however, that he had paid monthly dues as a member of the association for nine months after its organization. Held, that the trier of facts was warranted in finding that he was bound as a member for subsequently accruing dues.</p> <p>2. -: CRITERION OF LIABILITY AS STOCKHOLDER. Held, 5n the course of discussion, that the criterion of the liability of a subscriber to stock in a corporation is whether any act has been done by which the corporation has been forced to receive the subscriber.</p>

<p>Practice, Appellate : Res adjudicata. The trial court can not be put in the wrong in refusing an instruction, when, in so doing, it but follows the rulings of this court on a prior appeal of the cause.</p>

<p>Appeal from the Crawford Circuit Court.—Hon. C. C. Bland, Judge.</p>

<p>1. Eailroads: liability or gratuitous bailee. A gratuitous bailee is liable only for gross negligence. And held, that the evidence in this cause failed to establish any such negligence on the part of the defendant railway company in the care of goods left in its custody by the consignor after the refusal of the consignee to receive the same.</p> <p>2. -: -. It appeared in this case that the consignee of goods had refused to receive them from the railway carrier; that the consignor thereon told the station agent of the railway company to hold the goods until further notice, and that they were then stored in the warehouse of the company. Qumre, whether the company was bound even as gratuitous bailee in the absence of further proof, either of a custom on its part to hold goods for the consignor under such cir- • cumstances, or of authority on the part of the station agent to agree to the bailment.</p>

—Hon. C. C. Bland, Judge. (1) The court erredin refusing to allow respondent to prove by witness, Louis Berman, first, that he had been convicted of an infamous crime; second, that he 'had pleaded guilty to changing the mark of a hog with intent to steal it. State v. Miller, 100 Mo. 606; State v. Taylor, 118 Mo. 153; Wharton’s Criminal Practice [9 Ed.], 474;. 1 Bishop’s Criminal Practice, sec. 1185.

<p>Conditional Sales: validity. When goods are sold, and possession of them is delivered to the vendee, upon condition that the title shall remain in the vendor until they are paid for, the condition will he invalid as against a subsequent purchaser in good faith from the vendee, if the contract is not reduced to writing, and acknowledged and recorded as required by statute.</p>

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

<p>1. Practice, Appellate: procedure when complete transcript is not piled. When an appellant proceeds by filing a copy of the judgment entry and order of appeal, and subsequently Ms printed abstract of the record, and the respondent thereon files a counter abstract to supply alleged omissions in that filed by the appellant, and no exception is taken thereto, such counter abstract will be taken to be correct.</p> <p>2. Promissory Notes: consideration. A promissory note is supported by a sufficient consideration, when it is made in the course of a voluntary partition of land between the maker and payee, and for the purposes of equalizing their shares.</p>

<p>1. Bills of Exchange: oral acceptance. An oral promise by the drawee to pay a bill of exchange is not enforceable, since the statute requires the acceptance to be in writing.</p> <p>2. Statute of Frauds: promise to answer por debt op another. An oral promise to pay the debt of a third person, though made upon an adequate consideration moving to the promisor, is within the statute of frauds, and is, therefore, unenforceable, if such third person is not released from liability. Accordingly, this is the ease when the promise is made to one who has previously pledged the debt, and who is, therefore, incapable of releasing the original debtor.</p> <p>3. -: -. The plaintiff sold and conveyed land to a third person on the oral promise of the defendant to pay the purchase price of the same on the order of such third person at any time after the conveyance of the land to the latter. Held, that this promise was within the statute of frauds, and was, therefore, unenforceable even after the conveyance of the land by the plaintiff to such third person.</p>

<p>1. Chattel Mortgage: usury: pleading. The plaintiff in an action of replevin for mortgaged chattels need not plead usury, in order to avail himself of the provisions of the act of 1891 on that subject.</p> <p>2.. -: -: bona fide purchaser. Held, in the course of discussion, that usury can not be invoked to invalidate a chattel mortgage under that act, when the rights of an innocent purchaser for value have intervened, whether before or after foreclosure.</p> <p>3. Law and Fact: rejection of uncontradicted testimony of interested parties. Held, in the course of discussion, that the trier of the facts is at liberty to find against the party having the burden of proof, when his evidence, though uncontradieted, consists only of the testimony of parties in interest.</p> <p>4. Chattel Mortgages: effect of tender of mortgage debt. The tender of a mortgage debt before entry into the possession of mortr gaged chattels by the mortgagee invalidates his right of entry; and such tender is available for that purpose, though made before the maturity of the debt, if the mortgagee is at the time seeking to exercise an existing right of possession under the mortgage.</p> <p>5. Practice, Appellate: assignment of errors inconsistent with prior course of appellant. An appellant can not in this court assume a position which is inconsistent with that taken by him in the trial court. Accordingly, he can not complain of the joinder of a party made at his own instance.</p> <p>6. -: misjoinder of parties. Nor can a claim of the misjoinder of parties be made for the first time in this court.</p>

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

<p>Appeal from the Barry Circuit Court.—Hon. J. 0. Lamson,. Judge.</p>

<p>1. Refusal of Trial Court to Continue Cause: review of ruling on Appeal. An application for the continuance of a cause addresses itself to the discretion of the trial court; but such discretion is judicial and subject to review on appeal.</p> <p>2. Principal and Agent: effect of acts of agent as evidence of his authority. The scope of an agent’s authority can not be shown by his own acts, when these have never come to the knowledge of the principal.</p> <p>3. -: SALE OF GROWING TIMBER: STATUTE OF FRAUDS. Growing timber is real property, and can only be disposed of by instruments effectual to convey an interest in such property.</p> <p>4. Trespass to Lands: treble damages: unintentional wrong. A person who purchases growing timber from an agent of the owner of the land on which it stands, and thereon enters and cuts the timber in the belief that it belongs to him, will be liable in single damages for tie trespass, if such agent did not aet within the scope of his authority; but the trespasser, in such ease, is not chargeable with treble damages under the statute for the unintentional wrong.</p>

—Hon. Chables J. Wbigiit, Special Judge. (1) The legal effect of the deed from the sheriff of Greene county to C. W. Thrasher was to convey to said 0.

<p>Justices’ Courts: pleading. The rules of construction, which obtain with regard to pleadings in courts of record, are not applicable to an account or a statement of a cause of action filed with a justice of the peace.</p>

<p>1. Highways: voluntary dedication by matter in pais: essential elements. When matter in pais is relied upon to establish the voluntary dedication of a highway, the evidence should leave no doubt ' that the owner fully intended- to consent to the dedication; and it. must furthermore show an acceptance by the public.</p> <p>2. -: -: acceptance by user. When user is relied upon as. proof of acceptance in such a case, it is not necessary to establish the duration of it for any special time, but its continuance must be shown for such time and under such circumstances that the pnblie accommodation and publie rights would be materially affected by an interruption of the enjoyment.</p> <p>3. -: -: time oe acceptance. Such acceptance may take place at any time before the withdrawal by the owner of his proffered dedication; but the conveyance of the land by the owner without reservation prior to that acceptance amounts to such withdrawal.</p> <p>4. -: user adverse to owner. But, to establish the existence of a highway by user without regard to any intention of dedication on the part of the owner, the user must be adverse and not permissive only, and it must continue for the length of time necessary to bar an action for the recovery of the possession of real estate.</p> <p>5. Injunctions': trespass. Injunction is, under our statute, a proper remedy to restrain the threatened wrongful taking of land for public uses.</p> <p>6. ■ Practice, Trial: actions in equity: rejection op -verdict op-jury. When issues are submitted to a jury in an aetion in equity, the trial court is not bound by the verdict, but may disregard the-same, if it chooses.</p>

<p>By Bond, J.</p> <p>1. Practice, Appellate: review op matters op exception. Appellate courts will not review matters of exception, to which the attention of the trial court was not directed by motion for new trial; complaint thereof by motion in arrest of judgment will not suffice.</p> <p>2. Evidence: writings available por comparison op handwriting. The affidavit filed by a claimant in the probate court in support of a demand presented for allowance against the estate of a decedent is to be considered a paper in the cause. Accordingly, if an appeal is taken in the proceeding to the circuit court, a comparison may be instituted, on the trial in that court, between the signature to such affidavit and that to another document whose genuineness is in issue.</p>

—Hon. Alexander Ross, Judge. (1) Plaintiff’s first instruction rightly declares the law. Where a vendor, in possession of personal property, sells for full value, a warranty of title is implied.

<p>Appeal from the Newton Circuit Court.—Hon. ' J. C. Lamson, Judge.</p>

—Hon. H. H. Bedford, Special Judge. When the mortgagee gives verbal permission to the mortgagor to sell the property described in his mortgage, he thereby releases his lien. Coffman v. Walton, 50 Mo. App. 404; Gage v. Whittier, 17 N. H. 312; Pratt v. Maynard, 116 Mass. 388; 2 Cobby on Chattel Mortgages, secs. 637, 686; Jones on Chattel Mortgages, sec. 456; Carter v. Fately, 67 Ind. 427.

<p>. 1. Jurisdiction, Appellate: amount involved. The supreme court has jurisdiction of an appeal by defendants from a judgment wherein the aggregate recovery against them exceeds $2,500, though the recovery against each one of them is for less than that sum.</p> <p>2. -:-: appeals by both parties. When both the plaintiff and the defendant appeal from the judgment in a cause, both appeals are returnable to the supreme court, if either is.</p>

<p>Mortgages: effect of foreclosure on mortgage debt. If, on. the foreclosure of a mortgage of land—in this ease the land lay in Illinois —less than the amount of the mortgage debt is realized, the foreclosure will not work a satisfaction of the entire debt, but will leave in force so much of the debt as has not been in fact paid.</p>

<p>Error to'the St. Louis County Circuit Court.—Hon. Budolph Hirzel, Judge.</p>

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

<p>Jurisdiction, Appellate: amount involved. A cause will be transferred to the supreme court, when it is not clear from the record that it is within the pecuniary limit of the jurisdiction of this court.</p>

—Hon. Henry C. Riley, Judge. (1) The court erred in overruling defendant’s motion to strike out plaintiff’s amended petition for the reason that said amended petition stated a new and different cause of action from that stated in his complaint filed before Justice Hinton. Gregory v. Railroad, 20 Mo. App. 448; Holliday v. Jackson, 21 Mo. App. 464; McCormack v. Kaye, 41 Mo. App. 268; Sturgis v. Botts, 24 Mo. App. 286; Yoimg v. Railroad, 33 Mo.

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

<p>1. Sales: construction oe contract. A contract involved in this case is considered, and is held to constitute a contract of sale.</p> <p>2. Conditional Sale: validity as to creditors oe vendee. A conditional sale of goods delivered to the vendee is invalid as to his creditors, prior and subsequent, if the contract therefor is not recorded as required by our statutes.</p>

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

—Hon. W. M. Robinson, Judge. (1) When a petition, upon a written contract, alleges specific performance of the conditions and obligations on the part of plaintiff, there can be no recovery upon a waiver not pleaded. Mohney v. Reed, 40 Mo. App. 100, and authorities cited. (2) The use of the plant by defendant, it having knowledge that it was not completed according to contract, was not an acceptance or approval of the plant, nor a waiver of any of its rights.

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

<p>1. Appeals: nonsuit in trial court. In this cause the plaintiff took a nonsuit after an adverse ruling in the trial court affecting his entire right of recovery. Held, that the nonsuit was not voluntary, so as to debar him from a review of the ruling on appeal.</p> <p>2. Accounts: FORM of assignment. No formal assignment of an account is necessary to the transfer of the title thereto; any act showing an intention to make the transfer will suffice.</p> <p>3. Witnesses: contract with agent of deceased party: competency of surviving party. The death of one party to the contract will not affect the competency of the other as a witness in an action on the contract by the latter against the executor of the former, if the decedent, in the making of the contract, was represented and acted throughout by an agent who is alive.</p> <p>4. Administration: amendment of demand presented for allowance. A demand presented in the probate court for allowance against the estate of a decedent may, on appeal, be amended in the circuit court, when the matters in controversy are not substantially changed thereby.</p>

—Hon. W. M. Robinson, Judge. We concede that, under the weight of authority, if the note was delivered to the payee, it can not be varied by parol testimony. But see Ande v. Dickson, 5 Eng. L. and Eq. 512, cited in State v. Potter, 63 Mo. loe. cit. 221.

<p>1. Cities and Towns: incorporation: description of limits. When a city or town which has not been previously incorporated seeks incorporation, the petition therefor to the county court must set forth its metes and bounds. The description of its territory as the west half of a stated quarter section is sufficient, however, especially when it does not appear that there is any dispute as to the boundaries of that subdivision.</p> <p>2. -: -: EFFECT OF INCLUDING UNIMPROVED PROPERTY IN CORPORATE limits. Of the eighty acres included in the subdivision thus mentioned, about fifteen in one corner thereof were cut off from the rest by a ravine, and were never built upon or otherwise improved; but it did not appear that they were not originally laid off into town lots. Seld, that this fact did not invalidate the incorporation.</p> <p>3. -:--: town plat. Semble, that it is not essential to the validity of such an incorporation that a plat of the town should be filed and recorded.</p> <p>4. Validity of Incorporation of Town of Houston: presumption as to town plat. Seld, that the disclosures of the record in this cause, together with enactments of the legislature of the state, authorized the presumption that a plat of the town of Houston, the validity of whose incorporation was in controversy in this case, had once been filed.</p>

—Hon. J. C. Lamson, Judge. (1) The sheriff is not only a quasi party to the suit, but -he is directly interested in the result of the trial of the cause; he is interested in favor of the plaintiff, because, if the interpleader is successful in the suit, then he becomes liable as a trespasser. State ex.rel. v. Baker, 26 Mo. App. 487, and cases cited.

<p>Appeal from the Cape Girardeau Court of Common Pleas. Hon. Alex. Ross, Judge.</p>

<p>Schools, Public: compensation of teacher. The pay of the teacher of a public school can not be withheld, under section 7996 of the Revised Statutes, for noncoruplianee with a regulation made by the school board during his employment, if he has not been properly notified of such regulation.</p>

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

<p>1. Trust Funds, Diversion of. When a note and mortgage are executed to indemnify two sureties of the mortgagor and are delivered for that purpose to one of these sureties, the transfer of the same by the latter for purposes foreign to those intended, and to a person who is cognizant of the diversion, will not be binding on the other surety.</p> <p>2. -: ACTION BY ONE OP SEVERAL BENEFICIARIES. If, in such case, the debt on which the mortgagees are sureties is paid entirely by the surety who is not bound by the transfer, he may, on the refusal of his cosurety to join with him, sue alone for the foreclosure of the mortgage, and make his cosurety and the transferee parties defendant.</p>

<p>Appeal from the Cape Girardeau Circuit Court.—Hon. Henry C. Riley, Judge.</p>

Error and Appeal from the St. Louis City Circuit Court. Hon. James E. Witheow, Judge. (1) Payment of the judgment is no protection against the suit of Tourville, it being void for want of jurisdiction. 2 Wade on Attachment, sec. 401; 1 Freeman on Judgments, sec. 120, and eases cited; Mercier v. Chace, 9 Allen, '242; Houston v. Musgrove, 35 Tex. 594; Ponder v. Mosely, 2 Fla. 267; Shriver v. Lynn, 2 How.'43; Williams v. Railroad, 8 Mo.

<p>1. Domestic Corporations: service op process: sufficiency op return. The service of a summons on a domestic corporation by the delivery of a copy, at a business office of the corporation in the county, to the person in charge thereof is permissible in the absence of the president or other chief officer of the corporation. Such absence sufficiently appears from a return which, after setting forth the delivery of the copy at such- office to the person in charge, adds that the president or other chief officer was not found in the county, this being equivalent to the statement'of his absence from the office at the time of the service.</p> <p>2. Pleading: essential averments of petition. Every fact, proof' of which is essential to a recovery by the plaintiff, must be stated in the petition; otherwise it will be fatally defective, the omission of an essential averment not being cured by verdict. And facts must be stated as distinguished from conclusions of law.</p> <p>3. -: -: action on fire insurance polioy. Accordingly, a. petition for the recovery of a loss under a fire insurance policy must state the ownership of the insured property by the plaintiff at the time of the fire, and the value of the property destroyed. Allegations that the plaintiff owned the business conducted in the building containing the property, and that he was damaged in a stated amount by the destruction of the property, will not suffice, these not being the equivalent, by necessary intendment, of the requisite averments.</p>

<p>Municipal Corporations: subdivision or land into lots: special, taxes. A subdivision of a lot in a city into smaller lots, made by the lessee of the land and not shown to have been sanctioned or recognized by the owner, is not binding on the city. Accordingly, special taxes. are properly assessed by the eity against the land as one lot, although the smaller lots have been separately improved by sublessees, and although the lessee has covenanted to pay the taxes on the land, and the municipal authorities have, at his request, made out prior tax bills against the land in accordance with his subdivision of it.</p>

—Hon. Richard Field, Judge. .(1) The court erred in compelling the plaintiff to submit to a trial by a jury composed of special jurors, when all the members of the regular panel were present and not engaged in the consideration of any cause, the plaintiff having duly objected before the special panel was sworn in and before the challenges were made. State v. Holme, 54 Mo. 153; State v. Waters,-Mo. 198.

—Hon. E. J. Broaddus, Judge. (1) The petition logically states facts constituting a good cause of action, is regular in form and ought to be sustained. Bliss on Code Pleading [2 Ed.], secs. 151, 175,176, 177, 210, 268, 276, 287c, 425a; R, S. Mo. 1889, sec. 2039, and cases cited in note “b” to said section; Goal Co. v. Quade, 28 Mo. App. 421; White v. Railroad, 34 Mo. App. 57; Mitchell v. Clinton, 99 Mo. 153; W ar nick v. Baker, 42 Mo. App. 439; Brickerv. Stone, 47 Mo.

—Hon. E. J. Broaddus, Judge. Appellant contends that the record of this road, with the aid of presumptions which legally come to its support, is sufficient, even in case of a direct attack, but, when collaterally assailed, as in this case, there can be no question of its sufficiency. However, if it should turn out that the road is irregular from beginning to end—even void, the township board having jurisdiction of roads, the appellant is safe. Perry v. Gill, 36 Mo.

—Hon. E. • J. Broaddus, Judge. (1) There is no ground upon which plaintiff’s action can be sustained, unless it is on the principle of marshaling assets, and the theory that McDonald’s homestead rights were waived in favor of his general creditors by giving the mortgage to Daviess county. The waiver of the homestead in favor of the mortgagee is not a general waiver, opening the door to all the creditors.

—Hon. E. J. Broaddus, Judge. The agreement, or stipulation in the policy, providing for an appraisal and arbitration, was in violation of section 5897, above cited. Ampleman v. Ins. Co., 35 Mo. App. 308; see page 314; Beily v. Ins. Co., 43 Wis. 456.

—Hon. W. W. Ruckee, Judge. (Í) The contract between the plaintiff and the defendant was legal and valid. The payment of $10 by plaintiff to the defendant in part payment of the purchase price of the hogs and to bind the bargain fulfilled the requirements of the statute to give validity to the sale. And so the memorandum in writing, shown by the evidence to have been signed by both parties, was sufficient for that purpose. 2 R. S. 1889, sec. 5187, p. 1258.

<p>Appeal from the Chariton Circuit Court.—Hon. W. W. Rucker, Judge.</p> <p>(1) The authority for plaintiff’s instruction, it is claimed, is found in the case of Roe v. City of Kansas, 100 Mo. 190, where the words, “safe condition,” are incidentally used, and it does not appear what instructions were given on the part of the defendant. This point was brought to the attention of the supreme court in the case of Burcloin v. Toivn of Trenton, 116 Mo. 358. The court held that though the instruction complained of was objectionable, if standing alone, yet in view of all the instructions given the error was not prejudicial. (2) The refusal of the court to give instruction number 1, as asked for by defendant, in which the true measure of defendant’s duty was laid down, and the giving of an instruction numbered 1, in which every qualification of defendant’s duty was taken out, can not be sustained by reason or authority. Kling v. City of Kansas, 27 Mo. App. 231; Bassett v. St. Joseph, 53 Mo. 290; Kiley v. Kansas City, 87 Mo. 103; 4 Wait’s Actions and Defenses, p. 636; 2 Dillon’s Municipal Corporations [3 Ed.], see. 1019; Brennan v. St. Louis, 92 Mo. 482.</p> <p>(1) The plaintiff’s first instruction is the law, and fully and clearly stated to the jury the issues on trial. If the place where the accident to the plaintiff occurred was “unsafe and dangerous,” it could not have been “reasonably safe,” and the criticism urged by appellant’s counsel is without point. 2 Dillon on Municipal Corporations [2 Ed.], sees. 786, 787, 788; Boe v. City of Kansas, 100 Mo. 190; Mitchell v. City of Plattsburg, 33 Mo. App. 555; Halpin v. The City of Kansas, 76 Mo. 335. (2) The plaintiff’s first, second and fourth instructions, and defendant’s first instruction should be read together, and when so considered it is clear, we think, that the case was very favorably presented to the jury for the defendant. “Instructions must be viewed in their entirety.” Wetsell et al. v. Wagoner, 41 Mo. App. 509; Reilly v. Railroad, 94 Mo. 600; Harrington v. Sedalia, 98 Mo. 583; Burdoin v. The Town of Trenton, 116 Mo. 358.</p>

<p>Appeal from the. Linn Circuit Court.—Hon. W. W. Ruoker, Judge.</p> <p>(1) The court admitted incompetent and irrelevant evidence on behalf of plaintiffs. Belch v. Railroad, 18 Mo. App. 85; White v. Stoner, 18 Mo. App. 548; Kennedy v. Holladay, 25 Mo. App. 514; Williams v. Dent, 30 Mo. App. 667. (2) The first instruction of plaintiffs is erroneous because it does not give the-items of the damages, and leaves the measure of damages to the jury. Shenuit v. Brueggestradt, 8 Mo. App. 47; JMJatnet v. Gregg Bros., 19 Mo. App.'112; Williams v. Dent, 30 Mo. App. 667; Wilburn v. Railroad, 36-Mo. App. 216; Flynt v. Railroad, 38 Mo. App. 98; Goss v. Railroad, 50 Mo. App. 623; Carpenter v, McDavitt, 53 Mo. App. 404; Hawes v. Stock Yard, 103-Mo. 60; Schaub v. Railroad, 106 Mo. 93; JMcGoivan v. Ore Co., 109 Mo. 531. This instruction is also erroneous in leaving the construction of the contract to the jury. Black River v. Warner, 93 Mo. 384; Chapman-v. Railroad, 114 Mo. 551. It is also erroneous in authorizing plaintiffs to recover damages not sued for. (3) Under the contract all matters of dispute were to be settled by arbitration, which arbitration shall be-final. Williams v. Railroad, 112 Mo. 487; Chapman v. Railroad, supra.</p> <p>(1) The evidence as to the damages sustained by the plaintiffs was competent and properly admitted, “When the subject of inquiry is so indefinite and general in its nature as not to be susceptible of direct proof, the opinions of witnesses are admissible. JEyermcmv. Sheehan, 52 Mo. 221; Greemuellv. Grow, 73 Mo. 638; 1 Wharton on Evidence [2 Ed.], sec. 510; Icl., sec. 512, and note 10; 1 Sutherland on Damages, 787, 788, and note 1, p. 788; 3 Central Law Journal, pp. 444, 445. (2) Where an instruction given is general in its scope, and no more definite instruction is asked by the losing party, it does not constitute reversible error. Broioning v. Railroad, 27 S. W. Rep. (Mo.) 644; Tetheroio v. Railroad, 98 Mo. 74, 86; Storchv. Meslcer, 55 Mo. App. 26, 38. (3) The point made by counsel for appellant that “all 'matters of dispute were to be settled by arbitration,” is without merit, for the reason that the defendants themselves refused to arbitrate the matters of difference, as shown by the evidence on both sides.</p>

—Hon. W. W. Wood, Judge. (1) Damages can not be recovered for mental suffering or fright unattended by physical injury. JEiving v. Bailroad, 48 Am. and Eng. R. R. Cases (Pa.), 506, and cases cited; Canning v. Williamstoivn, 1 Cush. (Mass.) 451; Connell v. Tel. Co., 22 S. W. Rep. (Mo.) 345; Bailroad v. Trott,. 25 S. W. Rep. (Tex.) 419, and cases cited; Bailway Com’rs v. Coultas, 13 App.

—Hon. Paris C. Stepp, Judge. (1) In order to authorize the plaintiff to recover in an accident ease, he must show that the injury was the direct cause of breach or neglect of duty on part of the defendant. Black on Accident Cases, sec, 1, p. 1; Foster v. Railroad, 90 Mo. 116; Hesse v. Railroad, 36 Mo. App. 163; Nolan v. Shiehle, 3 Mo. App. 300; Black on Accident Cases, secs. 57, 90.

—Hon. Ira B. Hyde, Special Judge. (1) Even if there were no limitation upon the 'authority , of the agent who took the application in this case, under the facts stated in plaintiff’s reply, it was error to permit plaintiff to prove that such agent was informed at the time of taking the application that the building was worth only $400. Failure to read an application does not relieve a party from the effect of a. failure of the warranty containedc therein.

—Hon. Paris 0. Stepp, Judge.- (1) It is the law of this state that any alteration of a written instrument, whether material or immaterial, after its execution, and whether before delivery or afterwards, by a party interested in it, without the consent of a party to and securities on such instrument, will release and discharge such parties and securities.

—Hon. Cyrus A. Anthony, Judge. (1) It is the settled law in this state that a deposition taken in another case can be read as an admission in writing against such party. Priest v. Way, 87 Mo. 16; Pomeroy v. Benton, 77 Mo. 82; Krihonv. Smith, 21 Mo. 296; Charleston v. Hund, 27 Mo. 341; State ex rel. v. Banli, 80 Mo. 626; State v. Eddings, 71 Mo. 545.

—Hon. Vm. S. Herndon, Judge. (1) The court never obtained jurisdiction of the cause, for the reason that the petition is not accompanied by an affidavit, as provided by section 4501, Revised Statutes, 1889. It states no venue, and is, therefore, a nullity. Savil v. Payne, 4 N. Y. Sup. 897; Cook v. Staats, 18 Barb. 407; Lane v. Morse, 6 How. 394; Thompson v. Burkhouse, 61 N. Y. 460; Burns v. Boyle, 28 Wis. 460; Fletcher v. Keyte, 66 Mo. 285; R. S. 1889, sec. 2065.

—Hon. Wm. S. Herndon, Judge. (1) The court erred in refusing to grant defendant time in which to procure testimony to meet the evidence of plaintiff against the reputation and character of the defendant. Defendant made the situation known to the court instantly and asked for a reasonable postponement to enable him to produce the countervailing proof. Dalton v. Shajfner, 38 Mo. App. 165; Bragg v. Moberly, 17 Mo. App. 221.

—Hon. Wm. S. Herndon, Judge. (1) A misfeasance on the part of the agent must be proved by a preponderance of the evidence. Mechem on Agency, .p. 388, sec. 503, and cases cited. A mere scintilla of evidence is not sufficient to support the verdict of a jury in such a case. Powell v. Railroad, 76 Mo. 84; Commissioners v. Clark, 94 IT. S. 284.

—Hon. Henry M. Ramey, Judge. ' Tinder the facts in this case, the service upon the secretary was service upon a chief officer, within the requirement of the statute. R. S. 1889, sec. 2527.; Sch'aeffer v. Phoenix Brewery Company, 4 Mo. App. 115.

.Appeal from the Buchanan Criminal Court.—Hon. Silas Woodson, Judge. (1) Fulton appeared in the justice’s court on December 28, 1893. That was a compliance with the obligations of the bond and discharged the security. State v. Bobb, 39 Mo. App. 543; State v. Mackey, 55-Mo. 51; R. S. 1889, sec. 4339.

—Hon. E. J. Broaddus, Judge. (1) At common law, contracts for sale of land or goods of any value were valid. Browne on Statute of Frauds, secs. 115, 135; McGowan v. West, 7 Mo. 569; Farrar v. Patton, 20 Mo. 81; Aultman v. Booth, 95 Mo. 383. (2) The statute of frauds does not render such contracts void or voidable, but merely prescribes a rule of evidence. Browne on Statute of Frauds, sec. 115; Moore v. Mountcastle, 61 Mo. 424.

—Hon. E. J. Beoaddus, Judge. (1) The court can vacate a judgment only as opposed to the weight of the evidence in those cases where the verdict of the jury is so strongly opposed to all reasonable probability as to be manifest result of passion or prejudice. Adler v. Wagner, 47 Mo. App. 25 j Lovel v. Davis, 52 Mo. App. 349.

—Hon. E. J„ Broaddus, Judge. (1) The testimony of Gregg and Fell, as offered,, was against their interest—not in their favor—and, under the common law, would be admissible, especially where default was made. 1 Greenleaf on Evidence, [19 Ed.], p. 448, sec. 355; Bates v. Forcht, 89 Mo. 121. (2) A witness competent under the common law~ is competent under the statutes. It is an enabling, and. not a disabling, statute. Prickett v. Reynolds, 21 Mo. App. 674; 15 Mo.

—Hon. Jno. A. Hockaday, Judge. (1) The first question in this case is, do«hthe provisions of the catalogue when accepted, as this was, ■constitute an entire contract! To determine this, requires a construction of the contract, and in doing this the court should not only consider the language employed, .and the subject-matter, but view them in the light • of the circumstances to ascertain what the parties actually understood, or intended. 2 Parsons on Contracts [7 Ed], p. 517.

—Hon. John E. Ryland, Judge. (1) The court erred in refusing instructions offered at the close of the state’s evidence. There is a total failure of proof of defendant’s guilt and the judgment should be reversed. State v. Ballard, 104 Mo. 634; State v. Crow, 54 Mo. App. 208. The defendant ought not to be punished, if he supposed in good faith that he was gathering up his property under a license from the real owner.

—Hon. Bichard Field, Judge. (1) If it is agreed between mortgagor and mortgagee, that former should remain in possession of' stock of goods in trade and sell in usual course of business, the mortgage is fraudulent as to both prior and subsequent creditors. R. S. 1889, sec. 5169; Jones on Chattel Mortgages [3 Ed.], sec. 397 and authorities there cited; Sauer v. Behr, 49 Mo. App. 86 and authorities there cited; Smith v. Ham, 51 Mo.

Appeal'from the Carroll Circuit Court.—Hon. James Gibson, Special Judge. (1) The court erred in allowing defendant below to offer testimony in support of the last count in his answer for services rendered plaintiff during the year 1888 for the reason that the items of the account are not set out either in the answer or in the exhibit atthched thereto against the objections of plaintiff below (sec. 2075, R. S. 1891).

—Hon. H. M. Ramey, Judge. (1) If the paper served on appellant’s- counsel is not such a notice as the law requires, the court had no authority to dismiss the ease. The case was not triable at the May term and there was no failure to prosecute the case. R. S. 1889, see. 6343; Blake v.Doioney, 51 Mo. 437; Blakely v. Railroad, 79 Mo. 342; Hawley v. Railroad, 80 Mo. 540. (2) It is conceded, in this case, that a notice of appeal was required.

—Hon. John A. Hockaday, Judge. (1) The motion in arrest of judgment should have been sustained, for the reason that the justice had no jurisdiction either of the person of the defendant, Jack Victor, or of either of the garnishees or of the subject-matter of the action and the circuit court obtained none by appeal. Devore v. StaecMer, 49 Mo. App. 547; Whitehead v. Cole et al., 49 Mo. App. 428; Corbin v. Lasioell, 48 Mo. App. 626; Green v. Castello, AdmW, 35 Mo.