Volume 62 — Missouri Appeal Reports

Appeal- from the Randolph Circuit Court, — Hon. John A. Hockaday, Judge. (1) The court erred in ruling as a matter of law that the eighth clause of the contract, which specifies horses and mules only, includes jacks also, and upon this theory in giving plaintiff’s instruction number 5, for the reasons; First, “That the terms of every written instrument are to be understood in their plain, ordinary and popular sense.” Rubey v. Coal and Mining Co., 21 Mo.

<p> Original Proceeding by Mandamus. </p>

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

Louis City Circuit Court. — Hon. Leroy B.Valliant,Judge. The furniture and effects mentioned in appellant’s chattel mortgage were sufficiently described to charge a third person purchasing the same with notice of the mortgage thereon. Vette v. Leonori, 42 Mo. App. 225; Jennings v. Sparkman, 39 Mo. App. 670; Stonebraker v. Ford, 81 Mo. 532; Hughes v. Menefee, 29 Mo. App. 204; Sparks v. Brown, 46 Mo.

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

— Hon. Benjamin E. Tuenee, Judge. (1) When sued for malicious prosecution, a prosecutor can not step behind a defective affidavit or information, and especially when he has' put the prisoner upon trial before a jury and insisted upon his conviction to the end. Stocldng v. Howard, 73 Mo. 25; Best v. Hoeffner, 39 Mo. App. 682. (2) The instructions given fairly presented the ease to the jury. Fugate v. Millar, 109 Mo. 281; Sharp v. Johnston, 59 Mo. 557; s. o., 76 Mo. 660.

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

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

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

<p>Criminal Law: indictment: exaction of fees by officer. The indictment in this cause, which was a prosecution against an officer for the exaction of fees not due him, is considered and held sufficient.</p>

<p>Interpleader: allowance for attorney's fees: rule when payment INTO COURT IS MADE BY CONTESTING debtor. The rule that, in a proper ease of interpleader, the stakeholder who pays a fund into court is entitled to a reasonable allowance for attorney’s fees, finds no application when a defendant, prior to suit, denies all liability and subsequently contests the extent thereof, and brings the amount of his indebtedness into court only after the determination of this contest'against him.'</p>

<p>1. Administration, Right to Letters of. Until those who have a statutory right to take out letters of administration upon the estate of a decedent have been afforded an opportunity to do so for the time allowed by statute, the appointment of another person as administrator is unwarranted.</p> <p>2. -: right of appeal: mandamus. If a claim of a right under the statute to administer is denied by the probate court, the claimant may appeal; and, if the right of appeal is denied, it may be enforced by mandamus. But the merits of the claim can not be determined in the proceedings by mandamus, and, accordingly, the issue can not be raised therein, whether the claimant is the widow of the decedent.</p>

<p>1. Sales: breach of warranty: burden of proof. In an action for the breach of a warranty made in a contract of sale, it devolves upon the plaintiff to show a fair and reasonable performance, on his part, of the conditions of the warranty.</p> <p>2. -: -: AUTHORITY OF vendor’s local agent under contract in question. A contract for the sale of a machine provided that notice of any breach of warranty should be given to the vendor's local agent who made the sale; that an opportunity should thereon be afforded the vendor to remedy defects; that, if the machine was then not made to do good work, it should be returned to the place of purchase by the purchaser, and that the continued possession of it by him should conclusively establish a compliance with the warranty. JETeld, that a local agent, who had been thus notified, and had endeavored but failed to remedy defects in a machine sold by him, acted within the scope of his authority in inducing the purchaser to retain the machine pending the submission to the vendor of new terms for the purchase of it, and, accordingly bound the vendor thereby.</p>

— Hon. Benjamin E. Turner, Judge. (T) Where the assured undertakes to establish an oral contract of insurance when the usual way of transacting the business was by the issuance of a policy and where a written policy was applied for, if upon the whole evidence it is left in doubt whether a binding contract was really made, a recovery will not be permitted. 1 Wood on Eire Ins. [2 Ed.] secs. 6, 13, 17, and authorities there cited; McCann v. Ins. Go., 3 Neb. 198; Neville v. Ins.

Louis City Circuit Court. — Hon. Daniel D. Fishes, Judge. There must be some privity between the principal debtor (here Hull) and the garnishee. The garnishment of the agent of one who is a debtor to the princicipal debtor is futile. Atwood v. Hale, 17 Mo. App. 81; Nenerv. O’Fallon, 18 Mo. 277; Drake on Attachments, sec. 514.

<p>1. Railroads: through contract for freisht. The giving by a railway company of a through rate of freight to a point beyond its line is not, in itself, evidence of a through contract.</p> <p>2. -: WRITTEN CONTRACT FOR transportation. When parties have put their contract in writing, it is conclusively presumed in the absence of accident, fraud or mistake, that their entire agreement, and the extent and manner of their undertaking, is embraced in the writing. This rule is applied herein, to a contract for the transportation of goods.</p>

<p>1. Practice, Appellate: failure of bill of exception to show TIME OF FILING OF MOTION FOB NEW trial. In order to entitle an appellant to the review of matter of exception, his hill of exceptions must affirmatively show that his motion for new trial was filed within four days after the trial, exclusive of an intervening Sunday, if there be one.</p> <p>2. -: -. If the bill of exceptions is ambiguous in this respect, the ambiguity will be solved against the appellant. Accordingly, the recital in the bill of exceptions that the appellant “then” filed his motion for new trial, without any further designation of the time, will not suffice.</p>

— Hon. E. M. Hughes, Judge. (1) Having sold the property here sued for to the consignee named in the bill of lading, the plaintiff has no further interest in it, and can not maintain this ■action. Comstock é Co. v. Affoetter, 50 Mo. 411; Graff v. Foster, 67 Mo. 512; Armentrout v. Railroad, 1 Mo. App. 158; Oder v. Railroad, 13 Mo. App. 81; Lindmer v. Meyberg, 27 Mo. App. 181; Meyer Bros. v. McMahan, 50 Mo. App. 18; Harding v. Manard, 55 Mo.

— Hon. J. O. Lamson, Judge. Floreth, having accepted a new lease without removing the shelving or reserving the right to remove, was estopped from claiming the shelving as his own, and, therefore, lost his right to remove them from the building. Lougran v. Boss, 45 N. Y. 792; Coming v. Troy Iron Co., 40 N. Y. 219; Davis v. Moss, 38 Penn. 346.

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

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

— Hon. James T. Neville, Judge. (1) There was a constant and regular flow of water coming by well defined channels — surface and subterranean — well known to the defendants, from the I ‘Little Sac” creek to the Fulbright spring, and defendants had no right to disturb, impede or hold back this regular flow; they might modify or temporarily divert the flow to their own reasonable use, but not hold back and waste it.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The court erred in excluding the testimony, offered by defendant, regarding the representations made by plaintiffs’ agent Rudisill at the time he shipped the pianos in controversy, and of the custom in vogue at Arkadelphia of advancing money on shipments such as this, and the character of the bill of lading issued by it for such shipment.

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

<p>Appeal from, the St. Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge.</p> <p>The scales were immediately in front of defendants’ premises in opposition to defendants’ wishes and peculiar interests. Bishop on Noncontract Law, sec. 993; Cummings v. City of St. Louis, 90 Mo. 259;' The C. H. H. Dry Goods Co. v. Citizens Railway Co., 41 Mo. App. 77. By refusing to remove them, the plaintiff was guilty of trespassing upon the defendants’ rights, whether that ground was defendants’ private premises or a public highway with the fee in defendants’ lessor. Rutherford v. Taylor, 38 Mo. 315; Bishop on Noncontract Law, sees. 990, 1011; Esty v. Baker, 48 Me. 495; 2 "Waterman on Trespass, secs. 692, 699. Defendants had a right to remove them with as little injury as possible. Adams v. Barney, 25 Yt. 225;' President and Eellows of Harvard College v. Stearns, 15 Gray, 4. The order of the county court was void ab initio, inasmuch as it purported to grant for private purposes an exclusive use of a public highway, and imposed additional burdens on abutting owners without compensation. Glaessner v. Brewing Ass’n, 100 [Mo. 514; Mc-Caffrey v. Smith, 41 Hun, 117; Elliott on Roads and Streets, p. 527; Williams v. Plank Road, 21 Mo. 580.</p>

<p>1. Mechanics’ Liens: preservation op identity op lien account. If a mechanic’s lien, account is kept separately on the books of original entry of the lienor, this will suffice for the preservation of its identity, though it was mingled with other accounts on the lienor’s general ledger.</p> <p>2. -: EPPECT OP NOTES GIVEN AS SECURITY ON VALIDITY OP LIEN. A mechanics’ lien is not waived by the acceptance of promissory notes merely as security for the payment of the lien account.</p>

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

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

— Hon. Reuben F. Roy, Judge. The information really charged defendant with the commission of no offense against the laws of this state. Passing over the impossibility of stealing, taking and carrying away five acres of grass, the act with which he is charged, and assuming that it was intended to charge him with stealing the cultivated grass grown on the five acres of ground, it-was not alleged that he did it willfully and maliciously.

Louis Comity Circuit Court — Hon. Rudolph Hibzel, Judge. The indictment is defective, as it states facts which constitute two distinct offenses, based on two sections of the statutes, one a felony and the other a misdemeanor. R. S., sees. 3695, 3696 and 3697; State v. Green, 24 Mo. App. 227; People v. Wright, 9 Wend. 196.

•Appeal from the■ Lincoln Circuit Court. — Hon. E. M. Hughes, Judge. The probate court has no jurisdiction to declare or find from the facts that Mrs. Wombles became a trustee in the conversion of this property to her own use, nor to follow the property through the many transformations during a period of forty or fifty years. ■ Butler v„ Lawson, 72 Mo. 227; Church v. McElhenny, 61 Mo. 543; Church v. Roberson, 71 Mo. 326; Scuclder v. Ames, 89 Mo. 496, 521.

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

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

— Hon. Benjamin E. Turner, Judge. The mortgage in question was given by two partners to the third on partnership property then owned, or which might come into said partnership, and the statute under which this suit was brought has no application to such mortgage for the following reasons: One partner can not sue another at law respecting a matter ■arising out of an unsettled partnership. Leabo v. Benshaiu, 61 Mo. 292; Mulhall v. Cheatham, 1 Mo.

— Hon. Reuben E. Roy, Judge. The court erred in refusing to give to the jury, at-the close of all the evidence, the instruction in the nature of a demurrer to the evidence asked by the defendant, for the reason that, under the undisputed evidence, the agent, Maupin, was a mere solicitor' authorized to take applications for insurance, hut with no power to make a contract of insurance. Trash v. Ins. Co., 58 Mo. App. 431; Trash v. Ins. Co., 53 Mo. App. 625; Sternberg v. Ins.

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

— Hon. E. M. Hughes, Judge. .(1) In an action on a contract plaintiff must show compliance on his part — performance of all conditions precedent. Weise v. The Birdsell Co., 35 Mo. App. 229; Nichols v. Larkin, 79 Mo. 271; Boyer v. Neel, 50 Mo. App. 26; Johnson v. Sproull, 50 Mo. App. 121. This he has not done, since the warranty requires the return of the machine to the agent from whom it was bought. (2) The measure of damages in this case is not the purchase price.

<p>1. Justices’ Courts: garnishment of foreign insurance companies. A foreign insurance company can not be summoned as ■ garnishee by a constable- by the service of the summons on the superintendent of the Insurance Department, the statute for the service of process against foreign insurance companies by service on such superintendent not being applicable to such a summons.</p> <p>2. -: service outside of COUNTY. Held, in the course of discussion, that a writ issued by a justice of the peace can not be executed outside of the limits of his county,</p> <p>3. -: AFFIRMANCE OF VOID JUDGMENT ON APPEAL. A judgment of a justice of the peace which is void ean not be affirmed on appeal.</p> <p>4. -: SERVICE OF NOTICE OF APPEAL: EFFECT OF RETURN OF SERVICE. The fact of the service of the notice of an appeal from the judgment of a justice is established, at least prima facie, by the official return thereof by an officer authorized to make the service.</p>

— Hon. C. C. Bland, Judge. Respondent agreed to work for appellant on his farm from March 1 to wheat sowing time, and, this being true, a failure on his part to carry out his contract forfeited his right to recover for the services he had rendered under said contract up to the time he quit appellant.

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

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

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

<p>Costs: fee bill in favor of referee. A fee bill for an allowance to a referee ean not be issued in his favor prior to the final determina- • tion of the suit.</p>

<p>1. Purview of Statute for Protection of Trade-marks. The statute for the registry and protection of trade-marks applies only to technical trade-marks, and not to designs or advertisements which lack the essential features of a trade-mark proper, but are protected by courts of equity from fraudulent imitation in order to prevent unfair competition in business.</p> <p>2. -: conviction under statute. Accordingly, this statute has no application to the label of a labor union or organization, which is not attached to goods made or dealt in by the organization itself, but is intended to signify only that the labor of members of the organization has entered into the manufacture of goods to which it is attached; and, therefore, a conviction can not be had under the statute for the intentional and fraudulent use of a counterfeit of such label in the sale of goods.</p> <p>■3. -: -. To warrant a conviction under this statute for the sale of goods under a counterfeit label, it must appear that the goods sold were not entitled to bear the genuine label; and this is not established by proof that tbe defendant knew that the label attached was a counterfeit or imitation.</p>

— Hon. E. L. Soarritt, Judge. (1) The attachment under the landlord and tenant act is for the purpose of enforcing the lien of the landlord against the crops raised on the demised premises in a simple and speedy- manner. R. S. 1889, secs. 6376 and 6384; Dawson v. Quillen, 43 Mo. App.-118; Garroute v. White, 92 Mo. 240.

<p>Peddlers: manufacture in state. A person traveling from place to place in a two horse vehicle, selling kitchen cabinets, is a peddler and should have a license, though the cabinets were manufactured by him in the state.</p>

— Hon. W. S. Herndon, Judge. (1) The statute of limitations having run against the notes upon the face of them, the burden of proving any fact which took them out from its operation was clearly on the plaintiffs. Goddard v. Williamson, '72 Mo. 133; Bosebaum v. Billington, 17 Johns. 182; 2 Greenl. Ev. [9 Ed.], sec. 444, p. 491.

— Hon. E. J. Bboaddus, Judge. (1) The rules of law as to the duties of the master and the rights of the servant in the case of the use of complicated and dangerous machinery, where the defects are likely to be obscure and the position of the servant one of hazard and danger, are not applicable to cases of ordinary laborers working with simple tools or implements such as an as, a hoe, a spade, or, as in this case, an ordinary ladder, the danger attending the uses of which is…

— Hon. Jno. A. Hock ad ay, Judge. (1) This is an action of forcible entry and detainer, and to maintain it, plaintiffs only have to show that they were in possession, and that the defendants intruded upon it. This is the sole issue and the trial court seemed to have recognized this well settled principle of our law in giving plaintiffs’ declarations of law numbers 1 and 2.

— Hon. W. W. Rucker, Judge. (1) The instruction for plaintiff is erroneous, because it did not submit to the jury the question of contributory negligence disclosed by the testimony of the plaintiff. Hoffman v. Parry, 23 Mo. App. 20, 30; Baysdon v. Trumbo, 52 Mo. 35; Budd v. Hoffheimer, 52 Mo. 297; Wyatt v. Bailroad, 62 Mo. 408. (2) The defendant’s third instruction should have been given.

— Hon. W. W. Ruckee, Judge. (1) The court erred in overruling defendant’s motion to. make the reply definite and certain. Long v. Long, 79 Mo. 649; Bliss on Code Pleading, sec. 331. (2) The evidence offered as to the acts and declarations of plaintiff’s wife after she went to the building at his instance and as his agent, was admissible. Especially was this true of what was said and done by her while the building was burning.

— Hon. Richard Field, Judge. (1) There is no evidence to support the first instruction for plaintiff. This instruction is also objectionable for that it seems to say plaintiff claims to have been hurt on the part of the walk not thrown out,, when in fact she claims to have been hurt at the place where the walk had been thrown out, if there was any such place.

— Hon. Jno. E. Ryland, Judge. The indictment in this case is sufficient. It is not necessary that the exact language of the statute be followed, provided words of equivalent import be . used, or the substance thereof, or words of more, extensive significance, which necessarily include the words of the statute, and the defendant sufficiently apprised of the nature of the offense charged, and his substantial rights not prejudiced by omissions or surplusage.

— Hon. Richard Field, Judge. (1) The notes referred to in the deed of trust were past due, and the stipulation in the deed of trust that the time of their payment should be extended to the fifteenth day of November, was a new contract, and an obligation to pay, from the date of the deed of trust, interest above the legal rate, to wit, ten percent., on over $10,000. The interest exacted by this contract was usurious, being in excess of eight per cent.

— Hon. Richard Field, Judge. (1) The evidence clearly shows that the three items in dispute were for differences between the market value and the contract price of three different lots .Of grain, .and .it is clear from the evidence that no wheat was ever delivered, tendered or intended to be delivered, but that the parties intended to charge or pay the differences arising by and from the fluctuations of the market.

— Hon. Richard Field, Judge. (•1) The petition fails to state facts sufficient to constitute a cause of action. It does not allege that the plaintiff had any insurable interest in the property,' either at the time of the loss or at the time the policy was issued. As to the personal property there is no allegation of any kind of this nature. As to the building, the only allegation is that the defendant insured “his” one-story frame dwelling. This is insufficient.

— Hon. Richard Field, Judge. An action for use or occupation can not be maintained, unless the relation of landlord and tenant exists. Instruction number 1 asked at' the close of the evidence for plaintiff, and again asked at the close of the ease for both sides, should have been given. Suits v. Tailor, 20 Mo. App. 166; Oreen v. Sternberg, 15 Mo. App. 32; Cohen v. Kyler, 27 Mo. 122; Edmunson v'.

— Hon. Richard Field, Judge. (1) There was no verbal contract. In fact, no agent of defendant had authority to make a verbal contract to ship at a certain time. Plaintiff knew this. Hutchinson on Carrier, sec. 328; .Bryan v. Bailroad, 28 S. W. Rep. 98. (2) If, as alleged, there was a verbal contract, then Miller agreed to cancel or merge it, by entering into a written contract, upon the same subject-matter. Plumb v. Cooper, 121 Mo. 668; Leonard v. Bailroad, 54 Mo.

— Hon. W. W. Wood, Judge. (1) The verdict and judgment are against the evidence presented at the trial. (2) The jury misapprehended the evidence at the trial or were influenced by passion or prejudice. (3) The court erred in giving instructions numbers 1 and 2, asked by defendant. They were each calculated to mislead the jury.

— Hon. Argus Cox, Judge. In all the decisions it is set forth, as plain as language can make it, that the vendee of personal property-conveyed in fraud of the vendor’s creditors is noi entitled to be treated as an innocent purchaser, unless he has actually paid the money before notice of the fraud. Arnholt v. Hartwig, 73 Mo. 485; Dougherty v. Cooper, 77 Mo. 532; Young v. Kellar, 94 Mo. 581.

— Hon. W. M. Robinson, Judge. (1) There can be no question but what the agents of said company, whether it be the local agent or the adjuster sent here to adjust said loss, had the authority to waive any and all conditions of said policy, and, as to scope of agent’s power, to waive conditions of policies concerning proof of loss. McCullough v. Ins. Co., 113 Mo. 614, 615; Ins. Co. v. Monger, 30 Pac. Rep. 120; Ins.

— Hon. W. M.. Robinson, Judge. (1) Fraud will so affect the transaction that plaintiff can only recover the amount actually advanced with interest after deducting all monthly payments; and corporations are responsible for frauds of their officers and agents. Nelson v. Betts, 30 Mo. App. 13, 14; 1 Addison on Contracts [7 Ed.], sec. 306, p. 446; sec. 309, p. 448; Wannell v. Kem, 57 Mo. 492; Anderson v. McPike, 86 Mo. 298; Sherman v. Print. Co., 29 Mo.

— Hon. W. M. Robinson, Judge. (1) Even if the defendant’s agent had promised plaintiff to issue it a poliey of insurance that would insure the mining plant when idle, as well as when running, and when vacant ás well as occupied, it was, nevertheless, the duty of plaintiff to read the policy, and if not in accordance with the agreement to speedily return it. Not having done so-, it is bound by its conditions as written. McHoney v. Ins. Co., 52 Mo. App. 94; Ins.

— Hon. D. P. Steatton, Judge. The court erred in allowing defendant to testify over plaintiff’s objection, “that plaintiff had committed adultery with one Flora Dale,” and that plaintiff had “communicated to defendant a certain venereal disease,” for the reason that the same is in the nature of a countercharge or recrimination, and should have been pleaded in defendant’s answer. Plaintiff should have had an opportunity to defend himself against such charges.

— Hon. Jas. H. Lay, Judge. (1) The statement of Foster that he signed the notes and cheeks attached as exhibits to his deposition was read to the jury without objection. The exclusion of the exhibits was based on a metaphysical definition of words. This case is on all fours with the last case decided by this court. Mfg. Co. v. Clay, 53 Mo.

<p>Chattel Mortgage: levy on mortgaged property: depreciation: evidence. Meld, under the evidence in this ease as to whether there had been such unreasonable depreciation in the value of the mortgaged property as entitled the mortgagee to interplead for the same when it was levied on by the attaching creditor of the mortgagor, was a question for the jury.</p>

— Hon. Jas. H. Lay, Judge. A clause contained in the body of a policy against loss by fire, that “no agent has any power to waive any condition of this contract,” has reference to those stipulations which 'are a part of, and necessary to give validity to, the contract of .insurance, and not to those matters which are to be performed after there has been a loss, such as giving notice and furnishing a verified account of the loss. Loel v. Ins. Co., 99 Mo. 50; Barnard v. Ins.

— Hon. E. L. Scarritt, Judge. The condition of the long form mortgage clause, to the effect that the insurance as to the interest of the mortgagee only shall not be invalidated by any act of the mortgagor, or owner, does not relieve the-assured in this case from the necessity of rendering-proofs of loss within the time required by the policy. We cite the only reported case deciding the exact question: Graham v. Ins.

— Hon. E. L. Soarritt, Judge. (1) The mayor’s message to the common council at the sessions, at which the ordinance providing for the sewer in question was passed, referred to said ordinance merely as “an ordinance to establish sewer district number 151,” and said nothing about constructing a sewer in said district. The common counsel therefore had no power to pass said ordinance and it is void.

— Hon. J. H. Slover, Judge. A party recovering judgment in a circuit court is entitled, as a matter of course, and of right, to an execution, in accordance with the judgment, to have the same carried into effect.

— Hon. Cyrus A. Anthony, Judge. (1) The circuit court had no original jurisdiction of this proceeding. That jurisdiction is vested by statute exclusively in the probate court. R. S. 1889, art. 2, chap. 1; Dodson v. Scroggs, 47 Mo. 285; Cones v. Ward, 47 Mo. 289. Therefore, the circuit court could only acquire jurisdiction of the subject-matter by an appeal regularly taken from, and granted by, the probate court. Consent of parties can not confer jurisdiction in such case.

— Hon. James Gibson, Judge. The court sustained the injunction upon one point alone, viz: That time was of the essence of the contract; that, inasmuch as nothing was done within, the thirty days, therefore the contract became void. “Time does not become of the essence of a contract unless so declared or indicated by the circumstances.” Brown v. Trust Co., 128 U. S. 415; Hoffman v. Railroad, 157 Pa. St. 194; Byman v. McCulloch, 46 N. J. Eq. Í4; Waterman v. Banks, 144 IT.

— Hon. Cyrus A. Anthony, Judge. (1) Nor can this void sale be galvanized into life ■by the volubility of the clerks. ' The customers, the landlord, the insurance agent and the bank officials may have been informed, and a news item published in the papers, yet this is but notice of a sale perfectly good between Phil, and Ed. but wholly bad as to Phil’s creditors.

— Hon. Argus Cox, Judge. (1) But the admitted physical fact that the plaintiff had loaded one car, or half his shipment, without injury, disproves the contention that there could have been anything seriously dangerous in the condition of the chute. It is manifest that plaintiff took no reasonable precaution to avoid injury to himself, and for that reason can not recover. Forsyth v. Railroad, 103 Mass. 510; Palmer v. Railroad, 111 N. Y. 488.

— Hon. J. H. Slover, Judge. (1) Appellant was entitled to keep the article manufactured, and sold, although not as agreed, and counterclaim or set-off for damages. Martin v. Maxioell, 18 Mo. App. 176; Branson v. Turner, 77'Mo. 489; McAdow v. Boss, 53 Mo. 199; R. S., sec. 6204. “Witte Iron Works Company,” not being a person,natural or artificial, could not maintain a suit, and appellant’s objection to testimony should have been sustained.

<p>Promissory Notes: extension or time or payment: consideration. The payment of interest in advance on a promissory note furnishes a good consideration for an agreement for the extension of the time of its payment, hut it does not, of itself, afford evidence of such a contract; there must he some independent evidence that the parties agreed to such extension.</p>

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

<p>1. Cities of Third Class: presentation op claims to city council. The statute requiring a claim against a city of the third class to be presented to the city council befoi’e suit, and prohibiting the allowance of costs against the city when this requirement is not complied with, does not apply to a demand arising ex delicto, such as an action for damages for personal injuries.</p> <p>2. -: notice op condition op streets: duties op councilmen. The members of the council of a city of the third class are charged with the duty of acting with respect to the streets and sidewalks of the city. Knowledge on their part of the unsafe condition of such a street is, therefore, notice to the city.</p> <p>3. New Trial: newly discovered evidence. This court will not reverse the action of the trial court in refusing a new trial on the ground of newly discovered evidence, unless it is satisfied that the new trial would result in a different verdict.</p> <p>4. Practice, Appellate: determination op jurisdictional questions: eppect op oral suggestions op counsel. Questions in' relation to the jurisdiction of an appeal must be determined, either by an inspection of the record, or by an inspection of the record and affidavits in support; they can not be determined on oral suggestions of counsel, which are controverted.</p>

<p>Corporations: liability as partner. A business corporation has not the power to enter into a partnership, and, therefore, can not be held liable as a member of a partnership by reason either of its having held itself out’as one, or of its having undertaken to enter into the-relation.</p>

<p>1. Banks, Insolvency of: rights or depositor or commeroial paper for collection. If a bank collects commercial paper left with it for collection, and subsequently, without paying over the proceeds to the depositor, makes an assignment for the benefit of creditors, the assigned effects are impressed with a trust in favor of the depositor which entitles him in equity to a priority over general' creditors; and this, though such proceeds may not have reached the assignee either in their original or a substituted or converted form.</p> <p>2. -:-. The depositor need not obtain an allowance of his-demand by the assignee, in order to avail himself of this equitable right of priority.</p>

<p>Appeal from the Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.</p> <p>(1) The judgments in the attachment eases were irregular, not void. Rosenheim v. Hartsoch, 90 Mo. 357; Karnes v. Alexander, 92 Mo. 660; Burnett v. Mc-Cluey, 92 Mo. 230; Leonard v. Sparks, 117 Mo. 103; Collms v. Kamman, 55 Mo. App. 464. The case at bar is a collateral proceeding, so far as the prior attachment suits now under review are concerned, so that, even if the judgments in the attachment cases are irregular, they can not be impeached collaterally on account of such defects. Childs v. Shannon, 16 Mo. 331; Bernecker v. Miller, 44 Mo. 102; McDonald v. Frost, 99 Mo. 44; Karnes v. Alexander, 92 Mo. 660; Milner v.. Shipley, 97 Mo. 109. It is only when the judgments are void that they can be attacked or questioned collaterally. McNair v. Biddle, 8 Mo. 257; Abbott v. Sheppard, 44 Mo. 273; Higgins v. Peltzer, 49 Mo. 152. (2) The executions, when received by the constable, became liens on the property in controversy, and plaintiffs’ after-acquired title, if any they had any, was subject to such liens. R. S. 1889, sec. 6305; Brown v. Burns, 8 Mo. 26; Gott v. Williams, 29 Mo. 461; State v. Blundin, 32 Mo. 387.</p> <p>A judgment of a court having no jurisdiction over the person or the subject-matter of the suit, is void and a nullity, and may be attacked collaterally. Fletcher v. Wear, 81 Mo. 524; Mosher v. Banking House, 6 Mo. App. 599; Brown v. Woody, 64 Mo. 547; Babb v. Bruere, 23 Mo. App. 604; Howard v. Thornton, 50 Mo. 291; Meyer v. Horiman, 14 Mo. App. 30; McNair v. Biddle, 8 Mo. 257; Abbott v. Sheppard, 44 Mo. ‘273; Higgins v. Peltser, 49 Mo. 152; Railroad v. Reynolds, 89 Mo. 146. A garnishee can not do anything which will affect the rights of third persons, and, if he be not legally served with process, nothing is attached in his hands; and he can not waive a right relating to the property or credit of another. Connor v. Pope, 18 Mo. App. 86; Gates v. Tusten 89 Mo. 13; Swallow v. Duncan, 18 Mo. App. 622; Epstein v. Salorgne, 6 Mo. App. 352; Fanner v. Medcap, 19 Mo. App. 253. Jurisdiction over the subject-matter can not be conferred by consent; a fortiori, not by a mere waiver. Stone v. Corbett, 20 Mo. 350; Dodson v. Scroggs,4J Mo. 285; Cones v. Ward, 47 Mo. 289; Houler v. Campbell, 8 Mo. 572. In this case garnishees were not a corporation, but were co-partners merely, and both should have been summoned. Service on one did not carry with it notice to the other. Parsons on Partnership [3 Ed.], see. 172, note “w”; Maclay v. Freeman, 48 Mo. 234; Holt v. Harmon, 59 Mo. 165; Tay v. Hawley, 39 Cal. 93; Holland v. Johnson, 80 Mo. 34; Dugge v. Stumpe, 73 Mo. 513. The judgments in the attachment suits and the executions issued thereunder were void. Loth v. Faconeswich, 22 Mo. App. 68; R, S. 1889, sec. 6305; Herndon v. Hawkins, 65 Mo. 265.</p>

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

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

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

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

<p>Sales: vendor’s right of rescission. A purchase of personalty hy an insolvent, when procured by fraud or with no intention on the part of the purchaser to pay for the property, may be avoided by a seasonable rescission on the part of the seller; and such rescission will be effective against one who claims under the purchaser with notice of the infirmity of the latter’s title.</p>

<p>1. Landlord and Tenant: remedy of purchaser against tenant who refuses to attorn. A judgment for possession, and not for rent, is the proper recovery in an action .brought, under section 6397 of the Eevised Statutes, by the purchaser of land against a- tenant who refuses to pay rent or attorn.</p> <p>2. -: -: supersedeas appeal bond. When, in such an action, an appeal is taken by the tenant from an adverse judgment of the circuit court, the supersedeas bond should be conditioned as in ordinary cases.</p> <p>3. -: -: -: change of terms of bond without consent of surety. The obligation of a surety can not be extended beyond its terms, and the interpolation without his consent of terms-enlarging his obligation will discharge him from liability. Accordingly, it is held that a supersedeas bond, such as above mentioned, was invalidated as to a surety by the insertion therein, without his consent, of a clause for the payment of “rents now due and to accrue- and to stay waste.”</p>

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

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

— Hon. Reuben F. Roy, Judge. (1) The correct measure of damages on account of the burning of the hedges and the meadows, was the difference in the market value of the land before and after the respective fires. Shannon v. Bailroad, 54 Mo. App. 223. It was, therefore, error to admit evidence of the price or value of the hedge per rod, and of the meadow per acre.

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

<p>1. Practice, Appellate: failure of record to embody instructions given. The refusal of instructions will not be reviewed on appeal, if all the instructions given by the court are not embodied in the record, since the instructions given may contain all proper features of those refused.</p> <p>2. Principal and Agent: right of latter to commissions. If an agent employed to sell real estate finds a purchaser who is both able and willing to purchase the real estate on the authorized terms, his right to commissions will not be impaired by the default of his principal in refusing to consummate the sale.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Held: without exception, that, whenever one party has made a declaration or statement to another, upon which the latter relied and acted, the former shall not be permitted to prove such representation was false, if injury will occur to him who acted upon the faith of its truth. 2 Parsons on Contracts [8 Ed.], bottom p. 919, 920; Herman on…

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. It was an error of court to conclude and determine that plaintiff was, under the pleadings and evidence, entitled to a mechanic’s lien for the indebtedness of $300 due from Grant to plaintiff, notwithstanding the express release of the premises “from right of mechanic’s lien” under the facts in evidence and the estoppel pleaded in defendants’ answer.

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

<p>1. Evidence: proof of existence of public street. The existence of a public street may be established, in action against a city for an injury thereon, by proof that the street was in the actual possession of the city, and open to, and used by, the public as a thoroughfare.</p> <p>2. Highways: contributory negligence of traveler thereon: conclusiveness of evidence. The evidence in this cause is considered, and held to conclusively establish contributory negligence on the part of the plaintiff in traveling over a public alley which was Imown by her to contain an excavation.</p>

<p>1. Promissory Notes: estoppel. A defendant who is sued as one of the makers of a promissory note is not estopped from denying the execution of the note by him, merely because he did not deny such execution when refusing payment at maturity, and because the holder thereon believed his signature to be genuine, and, therefore, did not sue other parties who at the time were solvent but subsequently became insolvent.</p> <p>2. Practice, Appellate: failure of record to disclose all instructions given. When the record on appeal does not disclose all of the instructions to the jury given by the trial court, it will be presumed that the omitted instructions stated the entire law of the case, and justified the action of the trial court with regard to those which were refused.</p>

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

— Hon. E. M. Hughes, Judge. Plaintiff’s mortgage was prior in point of time. It is a universal principle and well settled that a prior lien gives a prior claim which is entitled to prior satisfaction out of the subject it binds, unless the lien be intrinsically,defective or be displaced by some act of the party holding it.

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

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

<p>Check: right op action by payee. A cheek which is not drawn upon a particular fund, nor for the entire sum due from the drawee to the drawer, and which does not contain any words of transfer, does not operate, before acceptance, as an assignment in law or equity of so much of the fund to the credit of the drawer as the check calls for, and, therefore, affords no right of action on the part of the payee against the drawee.</p>

— Hon. Henry Riley, Judge. (1) The possession of interpleader was not actual, notorious, exclusive, and continued, as required under the law: Claflinv. Rosenberg, 42 Mo. 449; Burgertv. Borchert, 59 Mo. 80. (2) The court erred in giving the instructions set ''forth in the statement. The court therein presumed that there was a sufficient delivery, although this was one of the issues in the case. Burgert v. Borchert, 59 Mo. 80, 84.

<p>The Evidence in this cause is considered and is held to warrant the , judgment therein.</p>

<p>1. Practice, Appellate: matter op exception : motion por judgment on pleadings. The overruling of a motion for judgment on the pleadings is matter of exception, and, therefore, will not he reviewed on appeal when no complaint is made thereof in the motion for new trial.</p> <p>2. Insurance Fire: waiver of conditions. Held, in the course of discussion, that a condition in a fire insurance policy against other insurance may he waived hy an agent with requisite authority, although a requirement of the policy for the indorsement thereon of such waivers is not complied with.</p> <p>3. -: TOTAL LOSS OF BUILDING : RIGHT OF INSURER TO REBUILD. Quaire, whether a provision of a fire insurance policy which covers a building, and reserves to the insurer the right to rebuild if a loss should occur, is not unenforceable in the case of a total loss because opposed to the statute fixing the measure of the damages in such a case.</p> <p>4. -: -: requirement of policy for plans and specifications of building. The failure of the insured to comply with a requirement of such policy for plans and specifications for the building as part of his proofs of loss will not defeat his right of recovery, if it is evident that the company issuing the policy could not rebuild with advantage; and such is held to be the case, when the insurance contracted for by such policy is but a small fractional part both of the aggregate insurance and of the probable actual loss.</p> <p>5. -: mill and machinery. Insurance of a mill and machinery therein against fire is within the purview of the statute fixing the measure of damages in the case of a total loss.</p>

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

— Hon. W. S. Herndon, Judge. (1) The Coen mortgage, although recorded, constituted no notice to defendant, or to those under whom he claims. The property could not have been selected by a stranger from among Carmichael’s stock from information contained in the mortgage, and defendant’s instruction number 4 should have been given. 3 Am. and Eng. Encyclopedia of Law, 180; Stonebraker et al. v. Forcl, 81 Mo. 532; Hughes v. Menifee, 29 Mo. App. 193; Bank v. Metcalf, 29 Mo.

— Hon. E. J. Broaddus, Judge. (1) There should be no conflict in instructions given for the different parties, and it is reversible error to give inconsistent or conflicting instructions. Gregory v. Sitlington, 54 Mo. App. 60; Frederick v. Algaier, 88 Mo. 598; Stevenson v. Hancock, 72 Mo. 612; Price v. Bailroad, 77 Mo. 508; Singer Co. v. Hudson, 4 Mo. App. 144. (2) A contradiction between two instructions, so far from correcting the vice of either, multiplies them both.

— Hon. John A. Hockaday, Judge. (1) Plaintiff’s mortgage was prior in point of time. It is a universal principle and well settled that a prior lien gives a prior claim which is entitled to prior satisfaction out of the subject it binds, unless the lien be intrinsically defective or be displaced by some act of the party holding it.

— Hon. H. H. Harding, Special Judge. (1) Compliance with, a condition in a policy of insurance requiring proofs of loss, is a condition precedent to a recovery under the policy, unless a waiver of it has been shown. Leigh v. F: & M. Co., 37 Mo. App. 547; Hanna v. Ins. Co., 36 Mo. App. 538; Norman v. Ins.- Co., 21 Mo. 81; Simms v. Ins. Co., 47 Mo. 64; Maddox v. Ins. Co., 56 Mo.

— Hon. J. H. Slover, Judge. (1) Bills of lading are not negotiable in the same sense as bills of exchange and notes. They are assign-able, and the transfer of the bill has the same effect as the delivery of the property covered by it, and under the statute of this state when the words “not negotiable” are printed across the face of a bill of lading, it stands as though there was no statute, and is governed by general rules.

— Hon. E. L. Soaehitt, Judge. STATEMENT BY GILL, J. This is a suit in equity, based on a complication of facts, and which may be fairly well understood by reference to the pleadings, a synopsis of… Held: and that the ten. shares issued to Wollman be canceled and held for naught.

— Hon. H. M. Ramey, Judge. (1) The issue made by the reply is that the contractor omitted to improve that portion of the street intersecting the railroad right of way, because it was not a part of the street. It being shown and declared by the court upon conceded facts that the space was a part of the street, the plaintiff should have been nonsuited. King Hill v. Hamilton, 51 Mo. App. 120.

— Hon. E. J. Broaddus, Judge. (1) The chattel mortgage of defendant is wholly void, as to plaintiff, although he had knowledge of its existence when he bought the mules, because the mortgage was not recorded for over five years after it was given, and four years after plaintiff bought the mules.

— Hon. E. J. Broaddus, Judge. (1) It was error for the court to admit non-expert testimony on the question as to the distance in which a cable train could be stopped Gourley v. Railroad, 35 Mo. App. 92; Eckert v. Railroad, 13 Mo. App. 352; Maher v. Railroad, 64 Mo. 276; Csesewzka v. Railroad, 121 Mo. 212; Rogers on Expert Testimony, p. 237; Grinnell v. Railroad, 73 Iowa, 93, 34 N. W. Rep. 758.

— Hon. J. A. Hockaday, Judge. (1) The statute should be liberally construed to uphold the lien, and all unfriendly strictness and technicality avoided. Held: in other states having statutes like ours, that the reducing of an account to personal judgment against the debtor is not a waiver of the mechanic’s right to a lien; that the claimant may still enforce his lien against the property of the owner. Kirkwood v. Hoxie, 54 N. N. W. Rep. (Mich.) 720, and cases cited.

— Hon. W. W. Bucker, Judge. (1) The court erred in admitting any evidence of any agreement to release defendant Hughes if he would get the debt secured. Because the cashier of plaintiff had no authority to release any security of plaintiff. Bank v. Hart, 55 N. W. Bep. 631; Bank v. Sailor, 63 Mo. 24; Chew v. JEllingtvood, 86 Mo. 262; Brandt on Suretyship, sec. 474; Story on Agency, secs. 114, 115; Minor v. Bank, 1 Peters, 46; Bank v. Haskell, 12 Am.

— Hon. W. W. Bucker, Judge. (1) The bond in suit and the judgment upon which it is predicated having been executed to accomplish a common purpose, the redemption of the land, for the purpose of legal interpretations will be read together as one instrument. Noel v. Gaines, 68 Mo. 663; Sexton v. Anderson, 95 Mo. 380; Lewis v. Johnson Cownty, 3 Mo.

— Hon. D. W. Shackleford, Judge. (1) Public roads in this state áre required to be not less than thirty feet wide, nor more than sixty feet. 2 R. S. 1889, sec. 7793; Hughes et al. v. Murmod et al., 121 Mo. 98; Zeibold v, Foster, 118 Mo. 349. This being true, it was the duty of appellant to keep the road the width required by law. And he had the legal right to remove all encroachments which reduced it below its statutory width. State ex rel. v. Buhler, 90-Mo. 568, 569.

— Hon. Richabd Field, Judge. (1) The holding over of defendants after the expiration of their written lease constituted them tenants from month to month. Hammon v. Douglass, 50 Mo. 434 and 442; Griffith v. Letvis, 17 Mo. App. 605; Drey v. Doyle, 28 Mo. App. 249.

— Hon. W. W. Wood, Judge. (1) There was no change of possession as required 'by statute. Defendant Foster continued to-exercise acts of ownership and control over the property after the alleged sale was made. There must be “a. change of dominion and control” over the property. R. S. 1889, sec. 5178; Claflin v. Rosenberg, 42 Mo. 439; Harvey v. Butchers’ Ass’n, 39 Mo. 212; Burgertef al. v. Brochert et al., 59 Mo. 80; State ex rel. v. Hall, 45 Mo.

— Hon. W. W. Wood, Judge. (1) At common law, the husband could dispose of his personalty as he desired, if done during his lifetime, although done for-- the purpose of defeating dower. Lines v. Lines, 24 Am. St. Rep. 487 and note; Dickerson’s Appeal, 2 Am. St. Rep. 547; 9 Am. and Eng. Encyclopedia of Law, p. 849; Stewart’s Husband and Wife, sec. 301.

— Hon. W. M. Robinson, Judge. (1) Tbe appellant’s evidence showed a right of recovery under both counts of his petition and the case should have been submitted to the jury.

— Hon. W. M. Robinson, Judge. (1) The locus must appear from the mortgage itself. This is done in this case, as the mortgage shows that the property is located on the premises of J. M. and Anna C. Webster, in Joplin City, Jasper county, Missouri. Where that is done parol proof may be resorted to for the purpose of further identification. Bozeman v. Fields, 44 Mo. App. 435; Bhutasel v. Stevens, 68 Iowa, 627; Campbell v. Allen, 38 Mo. App. 27; State ex reí. v. Cabanne, 14 Mo.

— Hon. C. H. Montgomery, Special Judge. (1) The note being due the plaintiff was the legal owner of the property mortgaged to secure it and was entitled to its possession at the time it was taken by said plaintiff. Jones on Chattel Mortgages [3 Ed.], chap. 16, p. 635, sec. 705; Moore v. Ryan, 31 Mo. App. 474.

— Hon. D. P, Stratton, Judge. (1) The granting of new trials is no longer discretionary with circuit courts. Their action is subject to review by appellate courts. Session Acts, Mo. 1891, p. 70; Lovell v. Davis, 52 Mo. App. 342; Morris v. Morris, decided by St. Louis court of appeals December 18, 1894. (2) The verdict and judgment were entered in this case May 18, 1894. The motion for new trial was filed June 13. It was too late. Shewalter v. Me Crew, 60 Mo. App. 288.

— Hon. J. H. Slover, Judge. (1) It may be conceded that the best authorities hold that a Iona fide purchaser of a lost or stolen negotiable instrument before maturity may hold it as-against the original owner. Franklin v. Heinsman, 1 Mo. App. 336; Murray v. Lardner, 2 Wallace, 110; Miller v. Race, 31 Geo.

<p>Appeal from the Jackson Circuit Court. — Hon. J. H. Sloveb, Judge.</p> <p>(1) The admission of the photographs in evidence was erroneous. Tome v. Railroad, 39 Mo. 93; Railroad v. Greene, 56 Md. 84; 17 American Reports, 540; Will of Foster, 34 Mich. 21; Williams v. Earle, 44 N. Y. 166; Eborn v. Zimpelman, 47 Tex. 503; Hollenbeck v. Rowley, 118 Mass. 420; 18 Am. and Eng. Encyclopedia of Law, 424. (2) Respondent’s instructions given by the court did not present the law of the case. Authorities first cited; Jones on Chattel Mortgages, sec. 247; Btirnett v. Gustafson, 54 Iowa, 86; 6 N. W. Rep. 132. (3) The court erred in refusing to give the instructions offered by appellant. Orebaugh v. Davis, 44 Mass. 598; Passenger v. Stamford, 1 Bailey, 237, 16 S. E. Rep. 713; Cooley on Torts, 477.</p> <p>(1) The statement of plaintiff is sufficient. The word conversion itself implies an unlawful act. Anderson’s Law Dictionary, page 253. (2) The photographs were competent evidence on the question of identity. Ruloffv. People, 45 N. Y. 213, loe. cit. 224; Cowley v. People, 83 N. Y. 464, loe. cit. 476; Archer v. Railroad, 106 N. Y. 589, loe. cit. 603; People v. Buddensiek, 103 N. Y. 509; Luke v. Calhoun Co., 52 Ala. 118; Church v. Mihvaukee, 31 Wis. 519; Undertook v. Commonwealth, 76 Pa. St. 340; Locke v. Railroad, 46 Iowa, 109 (bottom of page 112); Franklin v. State, ' 69 Ga. 42; State v. O’Reilly, 29 S. W. Rep. 577; Blair v. Pelham, 118 Mass. 420. (3) There is no estoppel in this case. “Standing by in silence will not bar a man from asserting a title of record in the public registry, so long as no act is done to mislead the other party; there is no duty to speak in such case.” Bigelow on Estoppel, page 575 (citing numerous authorities). Such is the law in Missouri. Bales v. Perry, 51 Mo. 449, loc. cit. 453; Blodgett v. Perry, 97 Mo; 263, loc. cit. 272.</p>

— Hon. E. L. Soaeeitt, Judge. (1) Verdict should have been directed for defendant. The case is just as if a connecting carrier advances illegal charges to the first carrier. The shipper pays and his remedy is against the company making the wrong charge. Streeter v. Railroad, 40 Wis. 294, 298; Knight v. Railroad, 9 Am. and Eng. R. R. Cas., 90; Owen v. Railroad, 83 Mo. 454; Kilmer v. Railroad, 100 N. Y. 395; Kenneth v. Railroad, 15 S. Car. Law, 284.

— Hon. J. H. Slover, Judge. STATEMENT BY ELLISON, J. The following is the section of the statutes construed in the opinion: “Section 1592.

— Hon. J. H. Sloveb, Judge. (1) The court erred in holding that the writing on back of ordinance number-1148 was a certificate of the board of public works, for the reason it is simply a statement in writing of certain individuals and does not purport to be done by the board of public works as a board. A resolution, to be evidence, should be signed by the president and attested by the secretary.

— Hon. J. W. Henry, Judge. As we have undertaken to show, the court had no right upon demurrer to weigh the evidence, but we ■submit that the judgment as rendered was against the weight of the evidence. It must be admitted that the testimony of the plaintiff and of witness Kohler, standing undisputed and unexplained, tends strongly to ■show fraud on the part of the defendant throughout his dealings with plaintiff.

<p>Guardian and Ward: final receipt of ware: relevancy of book entries. A receipt given by a ward to his guardian, acknowledging the payment and full satisfaction of the balance due the ward on final settlement, is prima facie evidence of such satisfaction; and undated entries, made by the ward in a memorandum book, of the payment of various sums by the guardian to him have no tendency to. overcome the prima facie case thus established.</p>

<p>Landlord and Tenant: action for possession: burden of proof. Seld, Bond, J., dissenting, that in an action by a lessor against his lessee for the recovery of demised premises, parts of which are in possession of subtenants of the lessee, the burden of proof is on the ■ lessee to show what parts are thus held by his subtenants; and, in the absence of such proof, the lessor may, as against the lessee, recover judgment for the entire premises.</p>

<p>1. Cities of Third Class: opening of streets: cost oe grading. The cost of bringing a street up to grade in a city of the third class can not be charged against the abutting property, unless the city council shall first by ordinance declare that in their judgment the revenues of the city would not justify payment of such cost by the city.</p> <p>2. -: -: -: distinction between ordinance and resolution. Such declaration will not be sufficient, when made by a resolution of the city council which has not been adopted with the formalities requisite in the passage of an ordinance.</p> <p>3. -: -: -. The cost of such grading can furthermore be charged against the abutting property only when the grading is to be done in connection with the complete improvement of the street.</p>

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

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